Thursday’s Tidbits

 

I’ve scoured the interwebs to bring you the latest news that may or may not be related to legal ethics & professional responsibility.

1. I often blog on the duty of competence.  Remember the LSAT?  For many years, critics have argued that the LSAT makes no effort to measure, and does not predict, professional competence.  Well, someday soon, you might be working with a lawyer who never took it.  As reported by The Wall Street Journal, an increasing number of law schools are dropping the LSAT requirement.
2. My posts on the duty of competence usually relate to tech competence.  A post on SLAW, argues that laptops should be banned in law school classrooms and, perhaps, courtrooms.
3. If you use your laptop, you might remember my blog on the Legal Keyboard. On his LawSitesBlog, Robert Ambrogi updates us on the mini version for travel.
4. Rule 1.5 prohibits unreasonable fees.  It’s okay to accept a fee in something other than money.  For instance, property.  But, as this suspension order from the Ohio Supreme Court reminds us, the value of the property must reasonably approximate the value of the services provided —  and, of course, the property transfer must not violate the criminal law.
5. Next year is an election year in Vermont.  Professor Alberto Bernabe, a frequent member of the #fiveforfriday Honor Roll, blogged on whether defense lawyers should be allowed to contribute to prosecutors’ campaigns.
6. Is your firm set up as a partnership or, perhaps, an LLC? The TaxProfBlog links to a Wall Street Journal article For Pass-Through Businesses, Let The (Tax) Games Begin.
7. Related, yesterday, the ABA Journal reported that the ABA asks Congress to include law firms in pass-through tax relief.
8. Last week I blogged on paralegal licensing.  A post on Law Times argues that it is Time for graduated licensing for lawyers.
9. From the ABA Journal, apparently there’s a ” ‘baffling phenomenon’ of lawyers who shoplift.”    It might make you ask yourself “self, was that wrong?”
10. Regarding judicial ethics, can a judge use the internet for independent legal research?  This advisory opinion from the ABA has the answer.  For a synopsis, the ABA Journal article on the opinion is here.

 

 

Monday Morning Answers

So, in last week’s Five for Friday, I mentioned my friend  Daren, his Catch the Mania an Top Hat trivia events, and his Viva Saloon in Key West.  Daren and I went to high school together.

When I posted on Friday, little did I know that yesterday was Daren’s birthday!  (thank you Facebook).  Yesterday afternoon, my brother and I ran into Daren at The Pour House, official pub of Five for Friday, and were able to celebrate the occasion with him.  Happy Birthday Daren, godfather of this column and my trivia-style ethics seminars.

Now, on to the answers.

Honor Roll

One perfect score this week: Matt Anderson, Pratt Vreeland

Others on the  Honor Roll:

• Bob Gensburg, Gensburg, Atwell, & Greaves
• Robert Grundstein
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Cassandra LaRae-Perez, Primmer (*special bonus for Question 5)
• Team Liberty (ACLE of Connecticut)
• Hal Miller, First American

The Answers

Question 1

Which doesn’t belong?

• A.  Social Media
• B.  Safekeeping Property
• C.  Competence
• D.  Advertising

Choices B, C, and D are the titles of Rules 1.15, 1.1, and 7.2 of the Rules of Professional Conduct. There is no rule entitled (or that specifically deals with) “social media.”  My outline on legal ethics of social media is HERE.

Question 2

Lawyer represents Landlord.  Lawyer mails notice of eviction to Tenant.

A few days later, Lawyer listens to his voice mail.  After the beep, a voice says:

“Hi. I’m Tenant. My friend told me you handle evictions. I just got an eviction notice and would like some legal advice. Please call me at 802-xxx-xxx.”

Which is most likely under Vermont’s Rules of Professional Conduct?

• A.  Lawyer must withdraw from representing Landlord.
• B.   Lawyer must call Tenant back.
• C.  If Tenant denies receiving the notice of eviction, Lawyer may use the voice mail message.
• D.  If Tenant denies receiving the notice of eviction, Lawyer may have a conflict.

Maybe the question was poorly phrased.  However, in this instance, Tenant attempted to consult with Lawyer.  Thus, the information conveyed by Tenant is confidential. The best answer here is “D.”  I’m not aware of any scenario, absent informed consent to disclose, in which a lawyer may use against someone information that the person conveyed in a good-faith attempt to secure legal advice.  Here, Tenant is most likely a “prospective client” for the purposes of the Rules of Professional Conduct.  See, Rule 1.18.  Lawyer may represent Landlord, provided that Lawyer did not receive from Tenant information that could be significantly harmful to Tenant. If Tenant claims not to have received the notice, Lawyer cannot disclose the voice mail and, as a result, has a conflict under Rule 1.7 in that Lawyer’s duties to Tenant conflict with Lawyer’s duties to Landlord.

Question 3

Attorney called me with an inquiry.  I listened.  Then, I asked: “did you confirm it in writing and provide your client with a written explanation of what you’d do for her?”

Attorney answered “no.”  To which I replied “Houston, we have a problem.”

What did Attorney call to discuss? (please be specific)

A non-refundable fee.  See, (new) Rule 1.5(f).  Most of you were in the ballpark, indeed with very good seats.  Only Matt, however, was on home plate.

Question 4

Attorney represents Mork.  Mork intends to sue Mindy.

Attorney is married to Lawyer.  Attorney and Lawyer do not work in the same firm.

Mindy hires Lawyer.

Which is most accurate under Vermont’s Rules of Professional Conduct?

• A.  Attorney and Lawyer do not have conflicts of interest.
• B.  At a minimum, Mork & Mindy are entitled to be informed that Attorney & Lawyer are married.  See, Rule 1.7, Comment 11.
• C.  If Attorney withdraws due to the conflict presented by being married to Lawyer, the conflict is imputed to all others in Attorney’s firm.
• D.  The rules specifically prohibit a lawyer from representing someone in a matter in which an adverse party is represented by a lawyer who is “closely related by blood, marriage, or civil union.”

Question 5

Jimmy received his law degree from the University of American Samoa. His natural instincts as a con artist led him to cross several ethical boundaries while practicing law in  New Mexico.  From filing fraudulent insurance claims, to advertising violations, to assisting drug clients in money laundering schemes.

You might know Jimmy better by another name he uses.  A name he concocted from the phrase “It’s all good, man.”

Name one of the two TV shows on which you might have seen Jimmy.

Jimmy McGill practiced under the name “Saul Goodman” in Breaking Bad and Better Call Saul.  Kudos to Cassandra for knowing that Jimmy’s nickname is “Slippin’ Jimmy,” a name that harkens back to the days where he’d intentionally “slip” and fall in order to make fraudulent claims.

 

 

 

Crowdfunding: The More Things Change….

The first post to this blog argued that a lawyer’s duty of competence includes a duty to stay abreast of developments in technology and the benefits and risk thereof.  It’s HERE.

Today, I came across a tech ethics issue I hadn’t previously considered:  is it ethical for a lawyer to use a “crowdfunding platform” to solicit donations to fund the representation of  a client who cannot afford the lawyer’s fee?

The answer, according to the Philadelphia Bar Association, is “yes, as long as the lawyer complies with the rules.” The full text of the Philly advisory opinion is HERE.

I love the opinion.  Why?  Good question.  Let me tell you why.

You’d be surprised how often lawyers tell me “we need to change the rules to keep up with technology.”

No.  We.  Don’t.

Let’s use Rule 1.6 as an example.  Comment 16 tells us that:

• “A lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’ supervision.”

The rule does not reference technology.  In other words, the rule draws no distinction between the lawyer who is having a conversation with a person who is standing two feet away and a lawyer who is emailing a person who is 5000 miles away.

Advances in technology that have resulted in new methods of communicating & transmitting information have not changed a lawyer’s duty to safeguard client information that is communicated & transmitted. Are the risks associated with storing client information in the cloud different than those associated with talking with a client in a crowded hallway at the county courthouse?  Of course!  But the duty not to disclose otherwise protected information remains the same in each situation.

That’s why the Philly opinion is great.  It doesn’t treat “crowdfunding platforms” as new creatures that require new rules.  Rather, it reminds lawyers that the rules that apply when using a crowdfunding platform are the same rules that apply to any other representation.  That is, if a lawyer & client use crowdfunding to raise money  to cover the lawyer’s fee, the lawyer must:

• not disclose information relating to the representation absent client’s informed consent;
• comply with the rule that applies when a fee is paid by someone other than the client;
• avoid conflicts of interest;
• refrain from charging an unreasonable fee;
• account for & track client funds;
• not commingle funds;
• deposit earned & unearned fees in the appropriate accounts; and,
• not make misleading statements to others.

Remember: advances in technology do not change the duties lawyers owe to client, courts, and third persons.

Some of you might be muttering “what’s a ‘crowdfunding platform’ ?”  If you want to learn more, or if you think they might help your clients, the wikipedia entry is HERE.  You’ve probably heard of GoFundMe and Kickstarter.  They are crowdfunding platforms.  For a list of the top 10 by traffic, go HERE.

Are you required to learn about crowdfunding?  No.  But, if a client asks about crowdfunding your fee, “i don’t know about that &  it’s probably not allowed” might not cut it.

Finally, as Margaret Barry of Vermont Law School has mentioned to me, advances in technology will improve access to justice.  That is the case with crowdfunding platforms. As the Philadelphia Bar Association noted, “[c]rowdfunding sites can be a beneficial source of funds allowing the public to assist in the assertion of valid legal claims that might otherwise go without recourse.” So, please, don’t succumb to the knee jerk reaction that if it’s new, it must be unethical.  There’s too much at stake for that thought process to prevail.

Referral Fees

Last week’s Five For Friday included a question on referral fees. It generated several emails and calls, so I thought I’d post on the topic.

Vermont’s rules do not authorize straight referral fees.

Here’s the scenario: Client asks Lawyer for help in an area that Lawyer doesn’t practice.  Lawyer refers Client to Attorney.  Lawyer wants to be paid for the referral.  Under what circumstances, if any, can Attorney ethically pay Lawyer for the referral?

Believe it or not, we start with the advertising rule – Rule 7.2.

Rule 7.2(b) prohibits lawyers from giving “anything of value to a person for recommending the lawyer’s services.”  There are four exceptions.

One of the exceptions allows a lawyer to:

“refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these rules that provides for the other person to refer clients or customers to the lawyer if:

• (i) the reciprocal agreement is not exclusive; and
• (ii) the client is informed of the existence and nature of the agreement.”  Rule 7.2(b)(4).

A comment to the rule is instructive.

Comment [8] states that “[e]xcept as provided in Rule 1.5(e), a lawyer who receives referrals from a lawyer or nonlawyer professional must not pay anything solely for the referral,” but may enter into reciprocal referral agreements that comply with Rule 7.2(b)(4).

So, then, what does Rule 1.5(e) provide?

Rule 1.5(e) is Vermont’s rule on dividing fees between lawyers who do not work together. The rule authorizes a division of fees between lawyers who are not in the same firm only if:

1. the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation;
2. the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and
3. the total fee is reasonable.

I’m most often asked about paragraph 1.  Again, the Comment is helpful.

Comment [7] makes it clear that lawyers can divide fees based on “the proportion of services they render or if each lawyer assumes responsibility for the representation as a whole.”  It goes on to indicate that “[j]oint responsibility for the representation entails financial and ethical responsibility for the representation as if the lawyers were associated in a partnership.”

Back to our scenario: it seems to me that Attorney cannot pay Lawyer solely for the referral.  Attorney and Lawyer may divide the fee if:

• the total fee is reasonable
• Client confirms the agreement in writing, AND,
• the division is either
• in proportion to the services each performs, OR,
• Lawyer accepts ethical and financial responsibility for Attorney’s representation of Client.