Stop making noise.

“Noise
Yeah we scream, yeah we shout ’til we don’t have a voice
In the streets, in the crowds, it ain’t nothing but noise
Drowning out all the dreams of this Tennessee boy
Just tryna be heard in all this noise”

~ Kenny Chesney, Noise

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

A common inquiry is “Mike, what can I say in my motion to withdraw?”  Channeling my inner Calvin Coolidge, I answer “not much.”

Seriously – take heed to avoid what, in the lingo, we call “noisy withdrawal.”  That is, don’t impermissibly disclose information relating to the representation of the client when moving to withdraw from the representation.

Before, I outline the analysis, perhaps I’ll pique interest by sharing a real-life example.

It’s the story of a Tennessee lawyer who was publicly censured for disclosing confidential information in a motion to withdraw.  Hat tip to Brian Faughnan for sharing the story in a recent post on his blog Faughnan On Ethics.  The disciplinary opinion is here.

I’ll return to the opinion in a bit. First, an outline of the relevant rules.

V.R.Pr.C. 1.16 governs withdrawal.  Paragraph (a) sets out the situations in which withdrawal is required, while paragraph (b) lists instances in which withdrawal is permitted.  Notably, nothing in Rule 1.16 requires or permits a withdrawing lawyer to disclose otherwise confidential information.  The rule is limited to withdrawal and the duties that follow the termination of a representation.

In short, the rule on client confidences remains in full effect throughout the withdrawal process.

And that rule is V.R.Pr.C. 1.6.  It prohibits lawyers from revealing information relating to the representation of a client.  Like the withdrawal rule, it includes exceptions that either mandate or permit disclosure in certain situations.  Finally, as regular readers know, a comment to Rule 1.6 makes clear that “information relating to the representation of a client” is much broader than “information that is subject to the attorney-client privilege.”

So, the ethical tap dance becomes complying with Rule 1.16 without violating Rule 1.6.  As was my Aunt Mary Ellen in her tap dance studio when I was a kid,  Tennessee case is instructive.  Here’s a quick summary.

Lawyer represented Client. The professional relationship deteriorated, so Lawyer filed a motion to withdraw.  Lawyer included an affidavit in support of the motion.  In the affidavit, Lawyer revealed that:

  • Lawyer’s employees worry that Client will physically assault them.
  • Twice, Lawyer called 911 for police assistance in dealing with Client.
  • Client had not paid certain bills.
  • Client was often aggressive, threatening, argumentative, and uncooperative.
  • Client had recorded conversations with Lawyer

In sum, the affidavit disclosed information relating to Lawyer’s representation of Client.  From there, the Tennessee panel was clear:

  • Yes, the Lawyer had grounds to move to withdraw pursuant to Rule 1.16.
  • However, nothing in Rule 1.16 allowed Lawyer to disclose information protected by Rule 1.6 when moving to withdraw.
  • Further, “when the lawyer withdraws” is not an exception to Rule 1.6’s prohibition on disclosing information relating to the representation of a client.
  • And, finally, it doesn’t matter whether the information in the affidavit was privileged: Rule 1.6 covers  all information relating to teh representation, no matter the source.

Returning to the inquiry I shared at the beginning of this post, here’s the guidance that I typically provide when in a mood to utter more than 2 words.

Cite to the provision of Rule 1.16 that requires or permits withdrawal.  That’s it.

Then, there are two situations that would permit (but not require) you to provide more information that is otherwise confidential.

The first is covered by V.R.Pr.C. 1.6(c).  A lawyer may comply with a court order to disclose information relating to the representation of a client.  To me, that means that if a court orders you to provide more information on your motion to withdraw, you may do so.  I recommend treading lightly, disclosing only enough information as is necessary to establish that grounds for withdrawal exist.

The second is set out in Rule 1.6(c)(3) and, in my experience, is less likely to arise.  It’s the so-called “self-defense” exception.  It allows a lawyer to disclose otherwise confidential information in three situations, including “to respond to allegations in any proceeding concerning the lawyer’s representation of the client.”  I suppose that a hearing on a motion to withdraw might include the client making allegations about the lawyer’s representation.  If so, Rule 1.6(c)(3) would permit the lawyer to respond.  Again, the response must be constrained to the allegation.

In closing, and to paraphrase Kenny Chesney, when it comes to disclosing confidential information in a motion to withdraw, you’ll likely find that clients, disciplinary prosecutors, and disciplinary bodies won’t stand for your noise.

No Shoes Nation

Five for Friday: #88

Welcome to #88!

Just kidding.  There is no #fiveforfriday this week.

Oh wait, yes there is….it’s that there’s no scam targeting lawyers this week!  Sorry, I get confused.

Anyhow, what to say about 88?  Those who know me best would be very disappointed if I said anything other than what I’m about to.

In February, I was in Miami for the annual meeting of the National Organization of Bar Counsel.  The meeting ended on the day before the Super Bowl. Once it ended, I rented a car and drove to Key West.

The Keys perfectly suit my No Shoes Nation lifestyle.  And, Key West is where my buddy Daren lives.  We met in about 3rd grade.  Now, Daren splits time between South Burlington & Key West.  He and his girlfriend let me crash for the weekend.

Daren owns the Viva Saloon, official southern-most bar of Ethical Grounds.  That’s where I watched the Super Bowl.

The manner in which the Falcons blew game remains unbelievable.  Even more unbelivable? Look who stopped into Viva after the game and sat down next to me.

IMG_2015

That’s my 88 story.  Bonus points in the quiz to anyone who can tell me what, specifically, it’s got to do with 88.

Oh, and since I constantly harangue you about competence, and since I’m a basketball guy, and since we’re in Week 88, and since it’s September 29 . . . happy birthday Kevin Durant!  KD was born on September 29, 1988.  In my opinion, he’s the most competent player in the world today.  Plus, thanks to this sequence, Kyrie is a Celtic!

Finally, to my readers who think I don’t mention Prince enough, it was on September 29 that Let’s Go Crazy reached #1 on the Billboad charts.  Alas, 1984, not 1988.

Onto the quiz!

Rules

  • None.  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

Prospective Client consults in good faith with Lawyer, with an eye towards retaining Lawyer.  However, Client chooses not to retain Lawyer.  Client notifies Lawyer of the decision.

Per the rules, Lawyer continues to owe Prospective Client a _____________, but in somewhat relaxed fashion as compared to a former client.

  • A.   Duty of Loyalty
  • B.   Duty to Maintain Client’s Confidences
  • C.   Neither A nor B
  • D.  Both A & B

Question 2

Which must a lawyer keep for 6 years following the termination of a representation?

  • A.   The file
  • B.   Client confidences
  • C.   Complete records of funds held in trust and other property
  • D.  Electronic communications with the client

Question 3

Attorney called me with an inquiry.  I listened, then said:

  • “Client hasn’t paid in 8 months? Assuming nothing crucial is imminent, my position is that you’re permitted to file the motion.  Whether the court grants it is another question.  The question will be whether there will be a material adverse effect on your client.”

What type of motion?

Question 4

Attorney represents Irving in the civil matter Irving v. James.   Lawyer represents James and has retained Expert Witness.

Whether Attorney can contact Expert Witness without Lawyer’s permission is likely governed by:

  • A.  Rule 4.2 (the no-contact rule)
  • B.  Rule 1.6 (information relating to the representation)
  • C.  The Rules of Civil Procedure
  • D.  The Rules of Evidence

Question 5

When we first met Mike Ross, he hadn’t gone to college or law school, but was earning money by taking (and passing) the LSAT for others.  Then, to earn money to pay for his grandmother’s medical care, Mike agreed to deliver marijuana for a friend.  Somehow he managed not to be arrested in the ensuing sting and, almost impossibly, ended up with a job interview at a law firm.

He was hired.  As a lawyer. Even though Harvey, the partner who interviewed him, knew that Mike had not taken the bar exam or been admitted to practice.

After several years in practice, Mike was charged criminally with fraud & the unauthorized practice of law.  While the jury deliberated, Mike agreed to a plea offered by Anita, the U.S Attorney who was prosecuting him.

After serving a prison stint, Mike passed the bar, with only review by the Character & Fitness Committee standing between him and admission.  Yikes! Guess who bribed her way onto the committee charged with reviewing his application??? Anita!!  She did so not only to keep Mike out, but to try to prove her theory that Harvey (and others) had known all along that Mike wasn’t a lawyer!

Amazingly, Mike was admitted and spent the show’s most recent season as a duly licensed member of the New York State Bar.

Name the tv show.

the-quiz

 

 

 

 

 

 

 

 

 

 

 

 

Five for Friday: #83

83.

Believe it or not, 83 makes me think about an issue lawyers love to raise at my CLE’s: do the rules impose a duty to encrypt e-mail?  Fortunately, like apps in the old days, there’s a blog post for that.

Why does 83 remind me of the ethics of email encryption? Let me tell you!  As I do, remember that I’m not a mathemtician and I didn’t stay at a Holiday Inn Express last night.  But I’ll do my best.

83 is a Sophie Germain Prime .  The reason is that (2 x 83) + 1 is also a prime.  (For you mathematically challenged, that means that 167 is a prime number.)

Now, it’s beyond me why Sophie Germain spent her time searching for solutions to (2X + 1) = Y where both X & Y are prime numbers. But thank goodness she did!  Bear with me.

Back to our formula: 2X +1 = Y.  If both X and Y are primes, X is the Sophie Germain prime, and Y is a safe prime.  It turns out that Sophie Germain Primes and Safe Primes are very useful as secret keys in the RSA Cryptosystem.  Why?  The RSA Cryptosystem encodes stuff, and the SG & Safe Primes help it to block certain algorithms from cracking the code.  (I guess that Lorde & her friends weren’t faced with SG/Safe Primes.)

In other words, the RSA Cryptosystem is used to secure data transmission and Sophie Germain primes are critical in helping it to do so.  If you haven’t yet caught on, encrypting email is a way to secure data while it’s in transit.

I have no idea whether, back in the day, Sophie helped lawyers & maesters encrypt messages that were sent by raven.  Regardless, her work lives on today.

One last thing before the quiz: enjoy your weekend!  There aren’t many left before the leaves turn.  Along with my brother, 10 friends of ours, and about 70,000 friends we haven’t met yet, I’ll be at Gillette for the Kenny Chesney concert. No Shoes Nation knows how to do summer.

No Shoes Nation

Onto the quiz!

Rules

  • None.  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

There’s only ONE thing that the rules require Vermont lawyers to keep for a period of years.  What is it?

  • A.   Copies of advertisements for 2 years after they first run.
  • B.   Client’s file for 7 years following the termination of the representation of Client.
  • C.   Trust account records of funds held for Client for 6 years following the termination of the representation of Client.
  • D.   Client’s confidences & secrets for 7 years following the termination of the representation of client.

Question 2

Attorney called.  Among other questions on a single topic, she asked me whether the rules define “person of limited means.”  What general topic did Attorney call to discuss?

Question 3

Speaking of encrypting email, if there is a duty to encrypt, it flows from two duties set out in the rules. One is the duty to maintain the confidentiality of information related to the representation.  What’s the other?  The duty to:

  • A.  Safeguard client property & funds
  • B.  Provide a client with diligent representation
  • C.  Provide a client with competent representation
  • D.  Communicate with a client

Question 4

Lawyer represents Client.   Shortly before trial, opposing party discloses Witness. Lawyer determines that he has a conflict that prohibits him from representing Client in a matter in which Witness will testify for Opposing Party.

Lawyer moves to withdraw and discloses the conflict in both his motion and the argument on the motion.  The court denies the motion and Lawyer represents Client at trial.  Witness testifies, Lawyer cross-examines Witness.

True or False: Lawyer violated the Vermont Rules of Professional Conduct by representing Client at trial and cross-examining Witness.

Question 5

I’m not making this up.

In Vermont, V.R.Pr.C. 3.1 is the equivalent of civil rule 11.  It prohibits lawyers from asserting a position unless there is a non-frivolous basis for doing so.

I’m not making this part up either.

In 2014, a New York lawyer was sued for allegedly helping a client to fraudulently transfer assets.  Let’s call the lawyer “Defendant.”

In 2015,  Defendant filed a motion in which he requested the he and plaintiff either have a duel or “trial by combat.”  When questioned by the media, he responded that “”I have a good-faith belief that this is still part of our state constitution. I want the law to be clear on this issue, and I have every right to ask for this.”

What’s Defendant’s favorite television show?

 

 

 

Truth & Advertising?

From the ABA Journal, here’s an interesting story from Georgia.  At issue: television ads run by a plaintiffs firm.  The ads urge viewers to “spread the word” that in most “car crash cases, the person who caused the crash has insurance but the jury is never allowed to know.”

Per the story, the defense bar argues that the ads verge on jury tampering, improperly attempt to influence jurors, and constitute conduct intended to disrupt a tribunal. See, V.R.Pr.C. 3.5.  The plaintiffs firm responds that the ads are true and that any ban thereof would “violate our First Amendment right to free speech.”

Surely, a challenge to the ads would raise substantial questions for a court to consider.

Besides the issues mentioned in the article, Rule 3.5(a) states that “[a] lawyer shall not seek to influence a judge, juror, or prospective juror or other official by means prohibited by law.” (emphasis added).  I’d always assumed that a “prospective juror” was a person in the pool; that is, an individual summoned for duty, but not yet “picked” for a particular jury.  However, in a sense, we’re all “potential” jurors.  Could Rule 3.5(a) possibly extend that broadly?

And how might Rule 3.6(a) apply?  The rule prohibits a lawyer who is “participating or has participated in the investigation of a matter…..[from making] an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of  materially prejudicing an adjudicative proceeding in the matter.”   The answer, it seems, is that the rule doesn’t apply:  there’s no “matter.”  Rather, the ads provide general information on state law.

On that point, whether by television ad or at a public forum, is it impermissible for lawyers to inform the public what the law is?  I’m talking outside the context of a specific matter or case.  Would you look at this issue differently if, instead, it was a private criminal defense firm running ads “informing” the public about rape-shield statutes?

Food for thought. But, for now, please think about the issue (if at all) outside!  To paraphrase my man Kenny, the sun is too bright, the sky is too blue, and the foliage is too spectacular to be thinking about legal ethics.  Save ethics for a rainy day.

 

 

 

Five for Friday: Week 37

Welcome to Week 37 of Five for Friday!

(last night’s late post on Avvo & Fixed Fee Legal Services is HERE)

I’m dedicating this week’s edition to all my friends in No Shoes Nation. Thanks to a fantastic Christmas gift from my brother, he and I & some friends of ours will be joining about 80,000 of you tomorrow at Gillette for Kenny’s show with Miranda.  Here’s to pirate flags and blenders that are willing & able.

If you haven’t played before, old quizzes are here.  Rules?  None. With the exception of question 5, the quizzes are open search engine, phone-any-friend you want.  You may join with others and enter as a team.  I don’t share your answers with anyone, and as I’ve blogged, I don’t care if you go 0-5 32 consecutive weeks. So, give it a shot!  (and please consider forwarding to others)

Email answers to michael.kennedy@vermont.gov  I’ll post the correct answers & the honor roll on Monday morning.

Question 1

With respect to your duty to maintain confidentiality, it’s critical to remember that the Vermont Rules of Professional Conduct specifically prohibit you from disclosing ________.  (I’m looking for the exact phrase used in the rule).

  • A.  “information covered by the attorney-client privilege.”
  • B.  “client confidences”
  • C.   “client confidences and secrets”
  • D.   “information relating to the representation.”

Question 2

Under the Vermont Rules of Professional Conduct, which type of conflict of interest differs from the others in a critically important way?

  • A.  A “concurrent” conflict of interest, as defined by Rule 1.7
  • B.  A “former client” conflict of interest, as defined by Rule 1.9
  • C.  A conflict of interest based on a “personal interest” of the lawyer
  • D.  A conflict of interest that is created when a lawyer withdraws from representing one of multiple clients in the same matter.

Question 3

With respect to the Vermont Rules of Professional Conduct, the term “compliance review” applies to disciplinary counsel’s review of a lawyer or law firm’s:

  • A.  advertisements
  • B.  financial & trust account records
  • C.  client intake procedures/system to check for conflicts of interest
  • D.  security protocols when storing & transmitting client data electronically

Question 4

Lawyer called me with an inquiry.  I listened, then said:

  • “the comments to the rule say that your first step is to remonstrate with the client. It’s the only rule that includes the word ‘remonstrate‘.  In fact, talking about situations like this is the only time in my life that I’ve used or heard the word ‘remonstrate.’ “

What type of dilemma did Lawyer call to discuss?

Question 5

Steven Donzinger is a lawyer.  In 2011, he received an $8.6 billion judgment on behalf of a plaintiff-class.  The case was tried in Ecuador.

Earlier this month, the Second Circuit Court of Appeals affirmed a 2014 ruling that barred any & all attempts to enforce the judgment.  The lower court had concluded that Donzinger and the legal team that he headed procured the judgment through racketeering, bribery, coercion, and corruption. In affirming, the Second Circuit wrote that “even innocent clients may not benefit from the fraud of their attorney.”

The underlying case involved pollution.  Who was the defendant?