client confidences

ABA cautions lawyers who use listservs to be mindful of the duty of confidentiality.

Michael 1 Comment

I’ll start by trying to stave off the snowball that I expect to gather steam as it barrels downhill in my direction while evolving into an avalanche.

No, this post is not meant to offer a hard & fast rule that lawyers can’t use listservs. 

Rather, it’s meant to share guidance from others – much smarter than I – who recently concluded that when using listservs lawyers must be mindful of the duty of confidentiality that they owe to their clients.

What you do from here is up to you. My suggestion? See the picture.

Two days ago, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility released Formal Opinion 511: Confidentiality Obligations of Lawyers Posting to Listservs.[1] Here’s the first sentence of the concluding paragraph:

  • “Rule 1.6 prohibits a lawyer from posting comments or questions relating to a representation to a listserv, even in hypothetical or abstract form, without the client’s informed consent if there is a reasonable likelihood that the lawyer’s posts will disclose information relating to the representation that would allow a reader then or later to recognize or infer the identity of the lawyer’s client or the situation involved.”

The next sentence clarifies that:

  • “A lawyer may, however, participate in listserv discussions such as those related to legal news, recent decisions, or changes in the law, without a client’s consent if the lawyer’s contributions will not disclose information relating to a client representation.”

Now, let’s back up to go over the rule.

The opinion focuses on ABA Model Rule 1.6(a) which states:

  • “(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).”

Vermont’s Rule 1.6(a) is quite similar:

  • “(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is required by paragraph (b) or permitted by paragraph (c).”

For purposes of this post and the new ABA Formal Opinion, paragraph (b) of the Model Rule and paragraphs (b) and (c) of Vermont’s rule are not relevant. Rather, the focus is on the intersection of:

  • A lawyer’s posts to listservs; and,
  • Rule 1.6(a)’s prohibition on disclosing information relating to the representation of client unless the client gives informed consent to the disclosure or unless the disclosure is impliedly authorized to carry out the representation.

To avoid a post that is far too long, I’ll restrict myself to sharing’s the opinion’s conclusions and advising lawyers to read the entire opinion for a better understanding of the analysis.

Per the opinion:

  1. “Lawyers may disclose information relating to the representation with the client’s informed consent.”[2]
  2. “Lawyers who anticipate using listservs for the benefit of the representation may seek to obtain the client’s informed consent at the outset of the representation, such as by explaining the lawyer’s intention and memorializing the client’s advance consent in the lawyer’s engagement agreement.”[3]
  3. “In this opinion, the question presented is whether lawyers are impliedly authorized to reveal similar information relating to the representation of a client to a wider group of lawyers by posting an inquiry or comment on a listserv. They are not.”[4]

I understand that the opinion is likely to concern lawyers who use listservs.  Indeed, a lawyer who used to do my job (for a long time) in another state expressed concern on social media that the opinion might have a “chilling effect” on lawyers who use listservs.

However, the opinion does not conclude that the use of listservs is unethical.  Indeed, the opinion specifically recognizes that “it bears emphasizing that lawyer listservs serve a useful function in educating lawyers without regard to any particular representation.”[5] Nevertheless, “before any post, a lawyer must ensure that the lawyer’s post will not jeopardize compliance with the lawyer’s obligations under Rule 1.6.”[6]

As always, let’s be careful out there.

[1] An ABA Journal feature announcing the opinion’s release is here.

[2] ABA Formal Opinion 511, p. 2.

[3] ABA Formal Opinion 511, fn. 9.  Which goes on to state that “the lawyer’s initial explanation must be sufficiently detailed to inform the client of the material risks involved. It may not always be possible to provide sufficient detail until considering an actual post.” Footnote 15 provides even more detail: “When seeking a client’s informed consent to post an inquiry on a listserv, the lawyer must ordinarily explain to the client the risk that the client’s identity as well as relevant details about the matter may be disclosed to others who have no obligation to hold the information in confidence and who may represent other persons with adverse interests. This may also include a discussion of risks that the information may be widely disseminated, such as through social media. A lawyer should also be mindful of any possible risks to the attorney-client privilege if the posting references otherwise privileged communications with the client. Whether informed consent requires further disclosures will depend on specific facts.”

[4] ABA Formal Opinion 511, p. 4. See also, fn. 10: “Comment 5 to Rule 1.6 explains that a lawyer is impliedly authorized to make disclosures ‘when appropriate in carrying out the representation.’ In many situations, by authorizing the lawyer to carry out the representation, or to carry out some aspect of the representation, the client impliedly authorizes the lawyer to disclose information relating to the representation, to the extent helpful to the client, for the purpose of achieving the client’s objectives.”

[5] ABA Formal Opinion 511, p. 6.

[6] ABA Formal Opinion 511, p. 6.

Related Posts

Monday Morning Honors #295

Michael 2 Comments

Happy Boston Marathon Day!  Good luck to all runners, including Vermont lawyer Tim Noonan!

Friday’s questions are here.  The answers follow today’s Honor Roll.

A HUGE thank you to all the readers who sent tips on making the perfect grilled cheese sandwich. I received so many that I think Wednesday might require a wellness post that features the suggestions. 

Honor Roll

ANSWERS

Question 1

By rule, what is required to be “communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation?”

  • A.  Whether the lawyer has malpractice insurance and, if so, the policy limits.
  • B.  Whether the lawyer has designated a successor to review and triage files if the lawyer becomes incapacitated during the representation.
  • C.  The basis or rate of the lawyer’s fee, and expenses for which the client will be responsible, except when the lawyer will charge a regularly represented client on the same basis or rate.  V.R.Pr.C. 1.5(b).
  • D.  All the above.

Question 2

Which is NOT an exception to the duty not to disclose information relating to the representation of a client.

  • A.  To respond to a negative online review left by a former client.  See this blog post.
  • B.  To secure legal advice about compliance with the ethics rules.
  • C.  To make an inquiry of bar counsel about the representation.
  • D.  To detect conflicts of interest when considering new employment.

Question 3

Vermont has a rule that imputes certain types of a lawyer’s conflicts to all other lawyers in the same firm.  Does the rule impute a paralegal’s conflict to other lawyers in the same firm?

  • A.  Yes, and the firm must decline the representation.
  • B.  No, but the paralegal should be screened from involvement in the new matter.  See, V.R.Pr.C. 1.10, Cmt. [4].
  • C.  Yes, but only to any lawyer who supervises the paralegal.

Question 4

Do Vermont’s rules on conflicts of interest allow a client to consent to waive a conflict that might arise in the future?

  • A.   No.
  • B.   Yes.  The advance waiver is subject to the same test as any other conflict waiver.  See, V.R.Pr.C. 1.7, Cmt. [21].
  • C.   Yes, but only if the client is a “sophisticated client.”
  • D.   Yes, but only if the client is a “sophisticated client” who has previously retained the lawyer in other matters.

Question 5

The people in these pictures are Sarah Paulson and Courtney Vance.  The pictures are stills from a documentary in which each portrayed a lawyer who was involved in the OJ Simpson criminal trial. 

Talk about competence!

In 2018, each won an Emmy Award for their work in the documentary.   Name the lawyers that each played.

Marcia Clark & Johnnie Cochran.

Responding to a client’s negative online criticism? Think twice.

Michael 1 Comment

Today’s topic is one Vermont lawyers and firms are confronting with increasing regularity: whether and how to respond to a negative online review.  My standard guidance on the issue frustrates lawyers. My approach is both conservative – better safe than sorry – and based on the vast majority of the advisory opinions that have addressed the issue to date.

I last blogged about the intersection of the duty of confidentiality and negative online reviews here.  The post followed the release of ABA Formal Advisory Opinion 496: Responding to Online Criticism. Echoing the ABA’s Standing Committee on Ethics & Professional Responsibility, I wrote that “when considering if or how to respond to a negative review, a lawyer should be as careful as Elmer Fudd was quiet when hunting rabbits: very, very.”[1]

Lawyers often ask “Mike, why do I have to be so careful? The client waived the privilege by posting the comment.”

Again, be very, very careful.

The duty of confidentiality encompasses more than just privileged communications. Unless an exception is met, V.R.Pr.C. 1.6 prohibits disclosure of ” information relating to the representation.” This includes all information, no matter the source.[2]  And, speaking of exceptions, “my client posted online” is NOT one of them.

It’s not just me.

Stacie Rosenzweig practices law in Wisconsin, focusing on representing lawyers and other professionals.  Stacie’s blog Ethicking is a fantastic resource.  In August, Stacie posted It’s Better to Remain Silent and be Thought a [Bad Lawyer] Than to Speak Online and Remove All Doubt. The post addresses Wisconsin State Bar Opinion EF-03-21: Responding to Online Criticism.  Referring to the counter-intuitive conclusion that a lawyer owes a continuing duty of confidentiality to a client who posts public criticism, Stacie wrote “[that is not] how normal human behavior works. But it is what it is and I’m not going to recommend anyone try to become my test case.”

I agree.  I understand the argument that the client has waived confidentiality by posting publicly.  But you don’t want to be the test case.

I suggest reading the Wisconsin opinion.  Whether or not you agree with the rule, the opinion does an excellent job outlining its parameters. In particular, it provides a cogent explanation of why a negative online review does not fit within the so-called “self-defense” exception that allows lawyers to disclose otherwise confidential information to respond to a “controversy” between the lawyer and client.  In addition, the opinion concludes with this practical guidance:

“ABA Formal Ethics Opinion 496 makes several suggestions as to what a lawyer may do. The lawyer may ask the website or search engine to remove the post. The lawyer may contact the person who posted the criticism and seek to resolve the issue outside public view, including by asking the person to seek to remove or correct the post. The lawyer may also choose to simply ignore the criticism, understanding that most online postings lose their relevance quickly. In addition, experience teaches that one response can result in others, which may only make the parties’ positions more intractable and the dispute more visible. 

If the lawyer believes a response is necessary, the committee suggests the following:

‘I do not believe the [post/comments] are fair or accurate. Professional obligations prevent me from commenting further.’

If the criticism is from a person who is not nor has ever been a client of the lawyer, the lawyer may note that fact.”

You should also keep Stacie’s guidance in mind:  

  • “Still, it many cases it may not be necessary or prudent to respond even with the new suggested language, so as to not draw unwanted attention to a comment that would otherwise disappear into the ether.”

As always, let’s be careful out there. 

[1] The ABA Standing Committee suggested an approach more practical that my Loony Tunes approach.  According to Formal Opinion 496, “As a best practice, lawyers should consider not responding to a negative post or review, because doing so may draw more attention to it and invite further response from an already unhappy critic. Lawyers may request that the website or search engine host remove the information. Lawyers who choose to respond online must not disclose information that relates to a client matter, or that could reasonably lead to the discovery of confidential information by another, in the response. Lawyers may post an invitation to contact the lawyer privately to resolve the matter. Another permissible online response would be to indicate that professional considerations preclude a response.”

[2] See, V.R.Pr.C. 1.6, Comment [3].

RELATED MATERIAL

 My Blog Posts

ABA Issues Guidance on Responding to Online Criticism

Negative Online Review? How Not to Respond

Negative Online Review? Restrain Yourself!

Other Blog Posts

It’s Better to Remain Silent and be Thought a “Bad Lawyer” Than To Speak Online And Remove All Doubt Stacie Rosenzweig, Ethicking

ABA Journal, How to ethically respond to negative reviews from clients, Cynthia Sharp (friend of this blog)

Responding to Negative Online Reviews, Catherine Reach, North Carolina Bar Association Center for Practice Management

Advisory Opinions

Wisconsin State Bar Opinion EF-03-21: Responding to Online Criticism

North Carolina State Bar, Proposed Opinion 2020-1

New York State Bar Association Ethics Opinion 1032

Pennsylvania Bar Association Formal Opinion 2014-200

The Bar Association of San Francisco, Ethics Opinion 2014-1

Los Angeles County Bar Association Ethics Opinion 525

Monday Morning Honors #286

Michael

Happy Monday! 

Friday’s questions are here. The answers follow today’s Honor Roll.

Honor Roll

Answers

Question 1

Speaking of my mother, she’s a member of the Williston-Richmond Rotary Club.  Yesterday, I spoke to the club.  Over the past 12 years, I’ve done more than 300 presentations.  This was the first organized by my mother. The pressure was on!

Anyhow, after outlining the Professional Responsibility Program, I used the 7 Cs of Legal Ethics to explain what the club members should and should not expect from lawyers.  When I asked for guesses as to the 7 Cs, one person said “contact.”  I considered it correct.


Which of the 7 Cs of Legal Ethics did I give the person credit for identifying?

Communication.  The person’s point was that “I’d want my lawyer to stay in contact with me.”

Question 2

Does the confidentiality rule include an exception that allows a lawyer, without the client’s consent, to disclose information necessary to detect conflicts of interests that might arise from a potential change of employment?

  • A.  Yes.  There’s a specific exception that allows such disclosures, but only if the disclosure will not compromise the attorney-client privilege or otherwise prejudice the client.  See, V.R.Pr.C. 1.6(c)(5).
  • B.  A, and only if the lawyer is moving to private practice from government practice.
  • C.  A, and only if the lawyer is moving to government practice from private practice.
  • D.  No.

Question 3

There’s a rule that prohibits a lawyer from entering into a business transaction with a client unless (1) the terms are fair and fully disclosed in a writing that can be reasonably understood by the client; (2) the client is advised in writing of the desirability of seeking independent legal advice related to the transaction; and (3) the client gives informed consent, in writing, to the transaction’s terms and the lawyer’s role in the transaction.

A comment indicates that the rule does not apply to:

  • A.  Ordinary fee agreements.
  • B.  Standard commercial transactions between lawyer & client for goods, services, or products that the client markets to others.
  • C.  Agreements in which the lawyer accepts an ownership interest in the client’s business as a fee.
  • D.  A & B.  V.R.Pr.C. 1.8(a), Cmt. [1].

Question 4

Here’s the lone comment to a particular rule:

“Dilatory practices bring the administration of justice into disrepute. Although there will be occasions when a lawyer may properly seek a postponement for personal reasons, it is not proper for a lawyer to routinely fail to expedite litigation solely for the convenience of the advocates. Nor will a failure to expedite be reasonable if done for the purpose of frustrating an opposing party’s attempt to obtain rightful redress or repose. It is not a justification that similar conduct is often tolerated by the bench and bar. The question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay. Realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client.”

The rule requires a lawyer to:

  • A.  act with reasonable diligence and promptness while representing a client.
  • B.  refrain from conduct that is prejudicial to the administration of justice.
  • C.  provide a client with competent representation.
  • D.  make reasonable efforts to expedite litigation consistent with the interests of the client.

It’s Rule 3.2 – Expediting Litigation.

Question 5

A petition to cancel a registered mark made national news this summer.  The registered mark is a phrase that refers to food and a day of the week.

According to the petition:

  • “Nobody should have exclusive rights in a common phrase.  Can you imagine if we weren’t allowed to say ‘what’s up?’ or ‘brunch’? Chaos.”

The petition went on to indicate the petitioner “seeks no damages; it simply seeks reason and common sense.”

What phrase did the petition seek to cancel as a registered mark?  TACO TUESDAY

Bonus: Who was the petition filed on behalf of? Taco Bell

I blogged about the petition here.

The duty of confidentiality to former clients: judge orders Drew Peterson’s lawyer not to reveal information related to Peterson’s missing wife.

Michael 2 Comments

I like to use to imagery to make points related to legal ethics & professional responsibility. Here’s one of the images I use when discussing a lawyer’s duty of confidentiality:

1.6

What follows in today’s post invokes an image that’s similar, but with a critical distinction.  Imagine a picture in which it’s not me keeping me from disclosing confidential information. Rather, it’s a judge ordering me not to follow through on a threat to disclose a former client’s confidential information.

Last week, an Illinois judge ordered a lawyer not to disclose information related to the whereabouts of a former client’s missing wife.  Among others, the ABA Journal, WGN 9, NBC5, and the Chicago Sun-Times covered the story.

Many readers might have heard of the lawyer’s former client:  Drew Peterson.  Peterson is a former police officer who gained national attention in 2007 when his fourth wife, Stacy Peterson, disappeared. Stacy has never been found.

Stacy’s disappearance refocused attention on the 2004 death of Kathleen Savio, Drew’s third wife. Savio’s death was originally ruled an accident. Then, after Stacy’s disappearance, Savio’s body was exhumed. Following a forensics examination, Savio’s cause of death was changed to homicide.

In 2012, a jury convicted Drew of the premeditated murder of Savio. He was sentenced to 38 years in prison.  In 2016, he was sentenced to an additional 40 years after being convicted of soliciting the murder of the prosecutor in the Savio case.

Joel Brodsky represented Drew in the Savio trial. Last week, and as reported here, Brodsky told WGN Investigates that “maybe it’s time” to reveal Stacy’s whereabouts.  Referring to Drew, Brodsky added:

  • “It’s something that weighs on my conscience. I would never do anything that would hurt a former client, but he’s in prison, he’s never getting out.  So, if he’s a man, he’d say ‘I’m done, here’s what happened,’ so people can have closure.”

Brodsky went on:

  • “I know everything about both of his wives – everything. I feel bad about Drew still not taking responsibility and Stacy still being missing.  I’m thinking about maybe revealing what happened to Stacy and where she is.”

According to WGN 9, Brodsky’s statements came in response to Drew Peterson’s recent request for post-conviction relief in which he argues that Brodsky failed to provide effective assistance of counsel. Drew’s lawyer requested an order prohibiting Brodsky from revealing the information. A judge granted the order, stating “[t]his may be the most vile crime in the U.S. but [defendants] still have a right to speak in confidence with their attorney.”

Brodsky appears not to agree with the judge’s decision. During the hearing, Brodsky argued that Drew’s allegations of ineffective assistance allowed Brodsky to disclose client confidences.  Following the hearing, WGN reports that “Brodsky said the question of whether he’ll reveal what happened to Peterson’s former wives is not ‘if’ but ‘how.’ He said: ‘That’s going to happen.’”

Wow.

I don’t suppose it’s likely that a Vermont attorney will find themselves similarly situated to Brodsky.  Still, I’m going to use the Brodsky story as a segue to review the duty of confidentiality that Vermont lawyers owe to former clients.

You are a lawyer admitted to practice law in Vermont.  Let’s assume you represented me in a trial in which I was convicted of the 2014 murder of X, my first wife.  Let’s also assume that Y, my second wife, has been missing since 2015 and that some suspect me to have been involved in Y’s disappearance. Finally, let’s assume that when you represented me in X’s matter, I told you what happened to Y.

The duty of confidentiality that you owe to me is set out in V.R.Pr.C. 1.9(c).  The rule states that a lawyer shall not:

“(1) use information relating to the representation to the disadvantage of the former client except as these rules would permit or require with respect to a client, or when the information has become generally known; or

(2) reveal information relating to the representation except as these rules would permit or require with respect to a client.”

As I interpret the rule, my statement about Y is information related to your representation of me in X’s matter.  If my interpretation is correct, I’m entitled to the protection afforded by Rule 1.9.

Indeed, Brodsky does not seem to argue that Drew isn’t a former client to whom he owes a duty of confidentiality.  Rather, he argues that the gag order violates his First Amendment rights and, further, that Drew’s claims of ineffective assistance of counsel authorize Brodsky to disclose otherwise confidential information.

Returning to the hypo in which you represent me in Vermont, if you were to make an argument like Brodsky’s, you’d argue as follows:

  • Rules 1.9(c)(1) and (2) allow you to use or reveal my confidential information as permitted by other rules; and,
  • Rule 1.6(c)(3) permits you to disclose information related to your representation of me.

Now, I know what you’re thinking:  what’s that Mike? How does Rule 1.6(c)(3) permit me to disclose information about you, my former client?

Short answer:  if you’re thinking of disclosing my involvement in Y’s disappearance, I’m not sure that it does.

V.R.Pr.C. 1.6(c)(3) sets out Vermont’s so-called “self-defense” exception. It permits a lawyer to disclose information related to the representation of a client if the

  • “lawyer reasonably believes that disclosure is necessary to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.”

So, your argument would be:

  • Mike is a former client to whom I owe a duty of confidentiality.
  • Rule 1.9(c) prohibits me from using or disclosing information related to my representation of Mike, except as authorized by other rules.
  • Mike alleges that I provided ineffective assistance of counsel while representing him in the matter in which he was charged with the murder of X.
  • In that Mike has made allegations about my representation of him, Rule 1.6(c)(3) authorizes me to disclose his involvement in the disappearance of Y.

Here’s why I, as your former client, would beg to differ.

Comment 14 to Rule 1.6 states that paragraph (c) permits disclosure “only to the extent the lawyer reasonably believes the disclosure is necessary to accomplish one of the purposes specified.”  It also states that “a disclosure adverse to the client’s interest should be no greater than the lawyer reasonably believes necessary to accomplish the purpose.”

I get it.  Yes, I’m alleging that you didn’t know what you were doing when you represented me in the case in which I was convicted of murdering X.  But what I told you about Y has nothing to do with what you did for me in X’s case. The fact that I’m in jail for life isn’t an exception to the duty of confidentiality you owe to me.  That is, “what’s one more life sentence” isn’t among the exceptions listed in Rule 1.6.  You can defend against my allegations without mentioning a single thing about Y.

I’ve made this point often in different contexts. For example, it’s not uncommon for someone convicted of a crime to allege that their lawyer failed to explain the collateral consequences of a conviction before the client agreed to a plea deal. Assuming the client pled guilty to something other than possession of child porn, I’ve explained to lawyers that it’s possible to respond to the allegation without adding “oh, and by the way, my client once told me that he has child porn on his phone.”

Finally, and back to the hypo in which you represented me, I’d likely file a disciplinary complaint against you for even suggesting that you might disclose what happened to Y. In so doing, you’re basically stating that I know what happened to Y, and that I admitted my involvement in confidence.

In closing, I’ll repeat what I’ve often stated at CLEs and in response to ethics inquiries.  Yes, V.R.Pr.C. 1.6(c)(3) authorizes lawyers to respond to certain allegations related to their representation of a former client. The response, however, should be limited to the disclosure(s) necessary to respond to the allegations.  That is, I do not view the rule as license to reveal the entire basket of a former client’s dirty laundry.

For some, the Brodsky/Peterson matter might ring familiar.  Indeed, it wasn’t far from here that, almost 50 years ago, two New York lawyers learned in confidence the location of two of their client’s victims.  You can read more about the so-called “dead bodies case” in the ABA Journal’s 2007 article The Toughest Call. The New York lawyers took a different approach than Brodsky.

Finally, given today’s environment, I wonder how far we are from the day when certain clients are deemed unworthy of the protections of Rule 1.6 and the attorney-client privilege.  I understand that each of us must do what allows us to sleep at night. That’s fine.  As long as we understand that a consequence of sleeping might be waking up without a license to practice law.**

As always, let’s be careful out there.

legal ethics

** Caveat 1: To be clear, I don’t know what the rules are in Illinois.  I have no idea whether Stacey’s disappearance was an issue in the Savio trial or whether Stacy’s disappearance is related to Drew’s allegations that Brodsky provided ineffective assistance in the Savio matter.  My thoughts on the duties that Vermont lawyers owe to their former clients are limited to the application of the Vermont Rules of Professional Conduct to the hypo involving X, Y, and me.

** Caveat 2: Brodsky’s license to practice law in Illinois has been suspended since 2019 as a result of misconduct in unrelated matters.

Client Confidences, Motions to Withdraw, and Responding to Subpoenas for Client Information

Michael 1 Comment

“Of course I’m okay! God didn’t make me Irish for nothing you know!!”

~ Katherine Flynn, aka Aunt Kate

**********************

I’ll get to subpoenas and motions to withdraw in a bit.  First, I’m going to share a story, if only because Aunt Kate would roll in her grave if I failed to acknowledge the day.

I bought my condo in 2018.  When I moved in, I found it a bit curious that the previous owners had installed flagpole mounts on both sides of the garage door.  Don’t get me wrong: I’m a fan of flags, have a bunch of them, and love to fly them as appropriate.  Still, when would I ever need to fly two flags at the same time?

Today!

As most readers know, I’m a fan of all-things Irish and most-things basketball, with the opening weekend of the NCAA tournament among my favorite basketball things. Today, then, is quite a day: the magical and rare alignment of cosmos and calendar that results in March Madness opening on St. Patrick’s Day. Frankly, Younger Me would be shocked to learn that we’re working this morning.

It gets better.

Another of my favorite basketball things is UVM basketball. Tonight, Vermont plays a winnable game in the NCAA tournament.  That alone is something that would’ve fried Younger Me’s brain.  Combine it with playing on Day 1 of the tournament on St. Patrick’s Day?  Well, frankly, Younger Me would be even more shocked to learn that it was only half & half in our coffee this morning.

All that said, I’m sure you’ve figured out what this has to do with flags. Today I’m flying two: my Irish flag and my UVM flag.  So, I’ll transition to the legal ethics portion of this post with an Irish toast to the prior owner who had the foresight to install two pole mounts:

Sláinte and Go Cats Go!

Now, back to our regularly scheduled programming.

Motions to Withdraw & Subpoenas to Disclose Client Information

Over the past few months, I’ve noticed an uptick in inquiries on each of these questions:

  1. How much can I disclose in a motion to withdraw?
  2. How do I respond to a subpoena to produce a former client’s file or to give testimony about my representation of that client?

Here’s the nutshell version of my guidance:

  1. Very little. Cite to whatever provision of V.R.Pr.C. 1.16 applies, then go from there.
  2. Very carefully. Absent client consent to produce or disclose, I suggest raising all non-frivolous defenses against production or disclosure in a motion to quash.  Then, go from there.

After responding to these inquiries, I email these blog posts to the inquirers:

  1. Stop Making Noise.
  2. Subpoenaed to Disclose Client Info?

Now, I can sense that my mother’s French-Canadian mother is not only rolling in her grave, but she’s stomping her feet and smashing her fists.  She’s realized that today’s post is not original, but a rehashing of blogs I posted years ago.  She’s blaming the laziness on my Irish gene.  Nanny, Papa’s wife, has a point.

Nevertheless, since the questions continue to come, I thought I’d share this refresher.

When moving withdraw, remember that “I want to withdraw” is not among the exceptions to V.R.Pr.C. 1.6’s prohibition on disclosing information relating to the representation of the client. That’s why I think it’s best practice for a lawyer to limit a withdrawal motion to citing whatever provision(s) of V.R.Pr.C. 1.16 apply.  Then, if the court orders further disclosure, V.R.Pr.C. 1.6(c) permits a lawyer to respond.  Stop Making Noise includes a cautionary tale of a Tennessee lawyer who clearly had grounds to withdraw, but who was sanctioned for disclosing too much in a motion to do so.

Similarly, “I’ve been subpoenaed” is not among the exceptions to V.R.Pr.C. 1.6’s prohibition on disclosing information relating to the representation of a client.  So, absent the client or former client’s consent to produce the file or to give testimony, I think best practice is to raise all non-frivolous arguments against production/disclosure in a motion to quash. Then, if a court compels production or disclosure, V.R.Pr.C. 1.6(c) permits a lawyer to comply with the court order.[1]  My blog post links to ABA Formal Opinion 473: Obligations Upon Receiving a Subpoena or Other Compulsory Process for Client Documents or Information.

As always, let’s be careful out there.

Happy St. Patrick’s Day!

UVM and Irish

[1] Note: this post assumes that the subpoena issues in a matter that does not involve an allegation involving the lawyer’s representation of the client.  The analysis likely would change if the subpoena issues in connection with a case or controversy involving the lawyer’s representation of the former client.  See, V.R.Pr.C. 1.6(c) or contact me.

Vermont Supreme Court suspends lawyer for improper use & disclosure of information relating to the representation of current & former clients.

Michael

Prologue

In a disciplinary proceeding, the attorney’s state of mind – negligent, knowing, or intentional – is a critical factor in determining the appropriate sanction. Misconduct born of negligence generally results in a lesser sanction than knowing or intentional misconduct.  A few years ago, I blogged about the process by which the Vermont Supreme Court and hearing panels of the Professional Responsibility Board decide the sanction to impose.

Today’s Blog Post

Whether via inquiry or at a CLE, I’ve often cautioned lawyers about taking cases that may require them to depose or cross-examine a former client.  A common reply is “But, Mike, any information I might use against my former client is public record.”

Again “it’s public record,” is NOT one of the exceptions to the prohibition against using information relating to the representation of a current or former client to their disadvantage.  Simply, lawyers who believe that it is are mistaken.  And, as the Vermont Supreme Court indicated last week, it’s a mistake that might not mitigate in favor of a more lenient sanction if disciplinary charges are filed against the lawyer who makes it.

Please read the opinion.  There’s no substitute for doing so.

All I will say is this: at the trial level, a hearing panel of the Professional Responsibility Board concluded that the lawyer violated Rules 1.8(b)and 1.9(c)(2) of the Vermont Rules of Professional Conduct.  The former prohibits lawyers from using information relating to the representation of a current client to the client’s disadvantage.  The latter prohibits lawyers from revealing information relating to the representation of a former client.  Concluding that the violations were “knowing,” the panel suspended the lawyer’s law license for 3 months.

On appeal, the lawyer conceded having violated Rule 1.9(c)(2). However, the lawyer argued that he mistakenly believed that the public nature of the former client’s proceeding relieved him of a duty to keep the information confidential.  Thus, he argued, the violation was “negligent”, not “knowing”, and that his state of mind mitigated in favor of a lesser sanction that would not affect his privilege to practice.

The Court affirmed the hearing panel.  In so doing, the Court stated that lawyers are expected to know the rules.  In essence, ignorance of the rules is no defense to Disciplinary Counsel’s enforcement thereof.  Then, the Court stated that the lawyer:

  • “acted knowingly in revealing details of former client’s divorce to [others]. His mistaken belief that the disclosure was appropriate under the Rules does nothing to change the fact that he knowingly disclosed the information.”

It would be a mistake to conclude that the public nature of information relating to the representation of a current or former client relieves a lawyer of the duty not to use the information to the current or former client’s disadvantage.  A mistake that may not mitigate in favor of a lesser sanction.

Oops

Related Posts

 For more on the “generally known” exception to Rule 1.9(c)(2), see ABA Formal Opinion 479.

 

ABA Issues Guidance on Responding to Online Criticism

Michael 1 Comment

I haven’t blogged since before Christmas. Alas, like tragic ancient romances, all good things must come to an end.

I’m going to ease back into it with a topic familiar to regular readers: a lawyer’s duties when responding to online criticism.  It’s an issue I’ve discussed often.  Links to my prior posts are below.  Here’s the nutshell version:

  • when considering if or how to respond to a negative review, a lawyer should be as careful as Elmer Fudd was quiet when hunting rabbits: very, very.

Yesterday, the ABA’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 496: Responding to Online Criticism.  I like the opinion and urge you to read it.  Here are my thoughts.

In Vermont, Rule 1.6 prohibits a lawyer from disclosing information relating to the representation of client.  Our rule on former clients, Rule 1.9, incorporates Rule 1.6 by reference.

There are exceptions to the general prohibition. Of the exceptions, the so-called “self-defense” exception is most often cited as permitting a lawyer to disclose other confidential information in response to a negative review.  As I’ve long pointed out, it doesn’t.

In Vermont, the “self-defense” exception appears in Rule 1.6(c)(3).  It permits a lawyer to disclose information relating to the representation:

  • to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client;
  • to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved; or,
  • to respond to allegations in any proceeding concerning the lawyer’s representation of the client.

As ABA Opinion 496 further makes clear, a negative review is not “a controversy” or “proceeding” that triggers the “self-defense” exception.

In short, “my client criticized me online” does not fall within the exceptions to the general prohibition on disclosure.

Finally, while I haven’t received many inquires about how to respond to online reviews, those I’ve received consistently include the lawyer saying something like “the client’s post waives the privilege, so I can respond, right?”

Hold up!!

Your ethical obligation is not to disclose information relating to the representation of a client or former client.  The obligation encompasses all information relating to the representation, no matter the source.  As such, it is much broader than the attorney-client privilege.

In addition, the privilege is asserted in response to demands that compel production of confidential information.  For example, discovery requests or a request to testify under oath.  Whether a client’s online review constitutes a waiver of an evidentiary privilege is for a court to decide. It is not for the lawyer to decide in posting a reply.  Or, as the committee notes at the very beginning of its analysis in Formal Opinion 496:

  • “[t]he scope of the attorney-client privilege, as opposed to confidentiality, is a legal question that this Committee will not address in this opinion.”

So, what can a lawyer do when criticized online? Opinion 496 includes guidance.  From the summary:

  • “As a best practice, lawyers should consider not responding to a negative post or review, because doing so may draw more attention to it and invite further response from an already unhappy critic. Lawyers may request that the website or search engine host remove the information. Lawyers who choose to respond online must not disclose information that relates to a client matter, or that could reasonably lead to the discovery of confidential information by another, in the response. Lawyers may post an invitation to contact the lawyer privately to resolve the matter. Another permissible online response would be to indicate that professional considerations preclude a response.”

Negative online reviews will happen.  Fight the urge! Think and long & hard before you respond.

1.6

RELATED MATERIAL

 My Blog Posts

Negative Online Review? How Not to Respond

Negative Online Review? Restrain Yourself!

Other Blog Posts

ABA Journal, How to ethically respond to negative reviews from clients, Cynthia Sharp (friend of this blog)

Responding to Negative Online Reviews, Catherine Reach, North Carolina Bar Association Center for Practice Management

Advisory Opinions

 North Carolina State Bar, Proposed Opinion 2020-1

New York State Bar Association Ethics Opinion 1032

The Bar Association of San Francisco, Ethics Opinion 2014-1

Los Angeles County Bar Association Ethics Opinion 525

 

 

Facebook Post Leads to Public Reprimand

Michael 4 Comments

I’ve blogged often on the risk associated with disclosing information relating to the representation of a client.  At times, I sense that lawyers think I’m exaggerating to make a point.

I’m not.

Earlier this week, the Legal Profession Blog posted Public Discipline For Facebook Posts That Violated Duty Of Confidentiality. The post shares this opinion from the Massachusetts Board of Bar Overseers.

Briefly, a lawyer represented Jane Doe in connection with a petition for guardianship of her grandson.  Following a confidential juvenile hearing, the lawyer posted the following on his personal Facebook wall:

“I am back in the Boston office after appearing in Berkshire
Juvenile Court in Pittsfield on behalf of a grandmother who
was seeking guardianship of her six year old grandson and
was opposed by DCF yesterday. Next date-10/23.”

Two people commented.

The first asked the grounds on which DCF opposed the petition.  The lawyer replied:

“GM [grandmother] will not be able to ‘control’
her daughter, the biological mother, and DCF has ‘concerns.’ Unspecific.” 

The second asked if DCF preferred foster care.  The lawyer replied:

“The grandson is in his fourth placement in foster care since his removal from GM [grandmother]’s residence in late July. I will discover what DCF is doing or not doing as to why DCF opposes the GM [grandmother] as guardian. More to come.”

Eventually, Jane Doe’s daughter saw the post and comments and told Jane Doe about them. Doe sent the lawyer an email in which she stated that he

“seem[ ed] to think that discussing my custody case (and who knows what else) with your Face book [sic] buddies on an open account … is okay and at the least just [a] mistake. I beg to differ. Posting client information on Face book [sic] is a violation of the attorney client law.”

The lawyer replied that he had not disclosed protected information and that his post indicated “from where I was returning and DCF’s position only.”

The MA disciplinary prosecutor charged the lawyer with violating Rule 1.6(a) of the Massachusetts Rules of Professional Conduct.  With few exceptions, none of which were present, the rule states that a lawyer “shall not reveal confidential information relating to the representation of a client.”

(I emphasized confidential.  Why?  Because Vermont’s rule isn’t as narrow.  Vermont’s rule states that a lawyer “shall not reveal information relating to the representation of a client.”)

Anyhow, the MA rules defines “confidential information” as “information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) is likely to be embarrassing or detrimental to the client if disclosed, or ( c) information that the lawyer has agreed to keep confidential.”

At the trial level, the disciplinary prosecutor argued (b).  That is, that the Facebook post revealed information that was likely to be embarrassing or detrimental to Jane Doe if disclosed.

The hearing committee recommended dismissal of the disciplinary charges.  Upon review, the Board of Bar Overseers characterized the committee’s decision as follows:

  • “In recommending dismissal of the petition for discipline, the hearing committee
    concluded that, ‘the information at issue could only be embarrassing or detrimental to Doe if it could reasonably be linked to her.’ Based on its reading of [the rule] the hearing committee concluded that, ‘there must be enough revealed to get to a certain threshold, some identifiable or linear nexus reasonably connecting the information to a particular person.’ Thus, in recommending dismissal of the petition, the hearing committee found that, ‘There is no reasonable likelihood that the client could have been recognized.'”

The Board disagreed.

First, the Board concluded that the Facebook post was “confidential” because the disclosure that Jane Doe and her grandson were involved in a DCF matter was likely be embarrassing or detrimental to Jane Doe.

Next, the Board noted it was enough that Jane Doe and her daughter had recognized the post as referring to the lawyer’s representation of Jane Doe.  More specifically, the Board rejected the hearing committee’s conclusion that “there must be enough revealed to get to a certain threshold, some identifiable or linear nexus reasonably connecting the information to a particular person.”  Rather, after concluding that the daughter, who was not the lawyer’s client, figured out the the post was about her mother, the Board wrote:

  • “Even if there were no evidence that a third party actually recognized the client in the post, we would still conclude that the respondent had violated Rule l.6(a). There is no requirement that a third party actually connect the dots. If it would be reasonably likely that a third party could do so, the disclosure runs afoul of the rule. In addition to her daughter knowing about the case, Doe could have mentioned to a friend that the respondent was representing her in a case (perhaps in connection with making a referral). If the friend looked up the respondent on Facebook, the friend would learn about the ’grandmother’ and her litigation with DCF. There are numerous other reasonable scenarios.”

Now, I know what you’re thinking:  if that’s the rule, how can I ever run anything by another lawyer who isn’t in the same office as I am? The Board’s answer:

  • “In posting on Facebook, the respondent did not seek advice from other lawyers, nor can we discern any other purpose that would have served his fiduciary duty to his client. There is no legitimate analogy between seeking advice from other lawyers and the respondent’s Facebook post.”

Turning to the appropriate sanction, the Board publicly reprimanded the lawyer. While dissenting members urged a private admonition, the Board stated:

  • “The post is no different than publishing the facts in a newspaper or broadcasting them on television. Furthermore, the matter discussed by the respondent here was a sensitive child custody case that our legislature has deemed to be worthy of confidential protection by statute [citation omitted]. The respondent’s conduct ignored not only the basic tenets of Rule 1.6, but the basic confidentiality requirements that all attorneys who handle these sort of child custody and protection matters should honor.”

The Board concluded:

  • “Confidentiality is a central tenet of our profession.  If nothing else, the public knows that attorneys are obligated to protect their confidences.  This obligation exists to encourage clients to be truthful and to place great trust in their counsel.  By posting information about his client on Facebook, the respondent jeopardized that trust.  Public discipline is warranted.”

When it comes to disclosing information relating to the representation of a client, my thoughts remain the same.  Unless required or permitted by the rule, don’t.  As this case proves, “not much” can be “too much.”

Shhh

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