What is the file? Helpful guidance from Arizona.

Questions related to file delivery & retention are among the most common that I receive via ethics inquiry.  It’s odd, if only because so few of the complaints that are filed allege that a file wasn’t delivered or was incomplete.  Of course, I understand that with respect to the latter, a client likely wouldn’t know to complain about missing items.  Still, my general sense is that Vermont lawyers are on top of the duty to deliver the file.

But therein lies the rub: the duty is not to deliver the file.  Rather, upon the termination of the representation, V.R.Pr.C. 1.16(d) requires a lawyer “to take steps reasonably practicable to protect a client’s interests.”  Among other things, the duty includes “surrendering papers and property to which the client is entitled.”

Aside, and no offense to readers who are fans of Cheap Trick, but once I get around to proposing a rule change, I doubt I’ll recommend continued use of any form of the word “surrender.”**  I much prefer “deliver” or “provide.”  Alas, I digress.

Anyhow, the question: to what papers and property is the client entitled?  Or, what is “the file?”

In 2015, the ABA’ Standing Committee on Ethics & Professional Responsibility provided guidance in Formal Advisory Opinion 471.  I blogged about it here.  Both the opinion and my post list the items that must be delivered, as well as items that need not be provided. In other words, the opinion helps lawyers to determine what constitutes the file.  Frankly, while the opinion and my blog post are helpful, neither fully answers “what is the file?”

Fortunately, and thanks to a tip from Professor Bernabe’s Professional Responsibility Blog, I came across an advisory opinion that clarifies and simplifies the duty and analysis.

Last month, the Arizona Supreme Court’s Attorney Ethics Advisory Committee issued Ethics Opinion EO-19-0009.   Professor Bernabe blogged about it here

To me, the Arizona opinion does a terrific job answering “what is the file?” plain language. Here’s the committee’s summary of its opinion:

  • “Lawyers must retain sufficient information regarding the work they have done on a matter to permit the client to understand what was done for them and to permit a subsequent lawyer to take up the matter if the lawyer is discharged, withdraws, or is unable to continue the representation for other reasons such as death, disability, or discipline. This obligation informs the lawyers’ obligations concerning what materials they keep, how they store and organize those materials, and what they do with records at the end of a representation.”

Isn’t that exactly it? In other words, let’s fight the urge to be lawyers and debate every possible item – “what about this, what about that.”  Instead, let’s use common sense: “would this help the client or the client’s next lawyer figure out what I did for the client?” Or, as the committee notes later in the opinion:

  • “Lawyers do not maintain files for the sake of preserving files, but rather because keeping records of what they have done or plan to do in the course of representation is part of diligent, competent representation.”

Indeed!

That’s all I have for now.  However, I’m already planning a future post on other aspects of the Arizona opinion, including a paragraph that I expect will resonate with many lawyers who’ve contacted me.  By way of preview, here’s the pargraph from our friends in the southwest:

  • “The client is entitled to a single copy for free, and the lawyer may charge for additional copies or special copying requests that have associated costs, such as, scanning a file maintained in paper form. Lawyers may satisfy their obligations by providing copies throughout the representation, and do not need to provide additional free copies of those documents previously provided at the end of the representation. Of course, the lawyer may choose to provide more documents or copies than are required.”

Stay tuned!

** “Surrender, surrender, but don’t give yourself away.” Is this another way of stating that a lawyer need not include work product in the file?

Cheap Trick Surrender

Monday Morning Answers #210

I hope everyone made the most of the long weekend.  Friday’s questions are here.  The answers follow today’s Honor Roll.

Authentic wins the Kentucky Derby - CNN
I picked wrong again.

Honor Roll

  • Matthew AndersonPratt Vreeland Kennelly & White
  • Evan BarquistMontroll Backus & Oettinger
  • Alberto Bernabe, Professor, John Marshall Law School
  • Beth DeBernardi, Administrative Law Judge, VT Dept. of Labor
  • Erin GilmoreRyan Smith & Carbine
  • Robert Grundstein, Esq.
  • Jeanne Kennedy,  JB Kennedy Associates, Blogger’s Mom
  • John LeddyMcNeil Leddy & Sheahan
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Hal Miller, First American
  • Jim Runcie, Ouimette & Runcie
  • Jay Spitzen, Esq.
  • Jonathan Teller-Elsberg, Hershenson. Carter, Scott & McGee
  • Thomas Wilkinson, Jr., Cozen O’Connor
  • Zachary York, Child Support Specialist II, Office of Child Support 

Answers

Question 1

Can a lawyer accept compensation from someone other than the client?

  • A.  Yes, but only in insurance defense matters.
  • B.   Yes, but only if the client is indigent.
  • C.   Yes, but the rule permitting it also discourages it.
  • D.   Yes, if the client gives informed consent, the payor doesn’t interfere with the lawyer-client relationship, and information relating to the representation of the client is not disclosed to the payor except as authorized by the rule on client confidences.  V.R.Pr.C. 1.8(f).

Question 2

Consider the following:

  • must be in a writing that is signed by the client.
  • cannot be used for representing a defendant in a criminal case.
  • cannot be based on securing a divorce.
  •  

Here, we’re talking about:

  • A.   Contingent Fees.  V.R.Pr.C. 1.5(c).
  • B.   Flat Fees
  • C.   An agreement to limit the scope of a representation
  • D.   All the Above

Question 3

A lawyer called me with an inquiry. I listened, then responded “the first question is whether the new matter is the same as or substantially related to the old matter.”

Given my response, the lawyer called to discuss the rule on:

  • A.  file retention
  • B.  fees/trust account management
  • C.  communication with a represented person.
  • D.  a potential conflict of interestV.R.Pr.C. 1.9(a).

Question 4

Here’s a sentence that is in the comment to one of the rules on candor.  Your task is to fill in the blank.

“_________________   partially true but misleading statements or omissions that are the equivalent of affirmative false statements.”

  • A.    A lawyer does not violate this rule by making . . .
  • B.    Misrepresentations can also occur byV.R.Pr.C. 4.1, Comment [1].
  • C.    Negotiations necessarily include . . .
  • D.    According to my dad, Lawyers excel at making . . .

Question 5

The things we do for our clients!!

Sydney Carton was a brilliant lawyer who struggled with alcohol & depression.  His most famous client was Darnay.

While not explicitly clear from the historical record, I’m pretty sure that Darnay filed a disciplinary complaint against Carton.   In it, he alleged that Carton failed to provide him with competent & diligent representation in a criminal trial that resulted in a death sentence for Darnay.

The complaint became moot when Carton, who bore an uncanny resemblance to his client, switched places with Darnay just before the execution.  Carton’s final words before the guillotine fell:

  • “It is a far, far better thing that I do, than I have ever done; it is a far, far better rest that I go to than I have ever known.”

Name the book.

A TALE OF TWO CITIES.

Negative Online Review? How not to respond.

Whether here or at CLEs, I’ve often mentioned the perils of responding to a former client’s negative online review. As reported by the ABA Journal and Legal Profession Blog, here’s another example of what not to do.

Last week, the New Jersey Supreme Court suspended a lawyer for 1-year for violating several rules, including the Garden State’s rule that prohibits a lawyer from using information relating to the representation to a former client’s disadvantage unless the information has become “generally known.”  The underlying decision of the Disciplinary Review Board is here.

Now, the sanction resulted from multiple violations committed while representing multiple clients. In other words, the lawyer’s response to the negative online review wasn’t the sole basis for the 1-year suspension.  Still, the opinion serves as important reminder that, whether you agree with the rule or the interpretation thereof, it is well-established that information that is “public record” is not necessarily “generally known.”

Before I share the facts of the NJ case, let’s look at Vermont’s rule. It’s V.R.Pr.C. 1.9(c)(1):

“(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

(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.”  (emphasis added).

As reported by the ABA Journal, the New Jersey lawyer “had won unsupervised visitation for the client after she took her children to another state without authorization, ‘seemingly, a good result,’ according to the review board.”  Nevertheless, the client posted a negative online review regarding the lawyer’s services.

The client owns a massage therapy business.  Miffed at the review the client had left for him, the lawyer posted the following Yelp review of the client’s business:

  • “Well, [client] is a convicted felon for fleeing the state with children. A wonderful parent. Additionally, she has been convicted of shoplifting from a supermarket. Hide your wallets well during a massage. Oops, almost forgot about the DWI conviction. Well, maybe a couple of beers during the massage would be nice.”

In response to the subsequent ethics complaint, the lawyer wrote:

  • “As to the Yelp rating about [client’s] massage therapy business, I admit to same. I was very upset by [her] Yelp rating of my practice. This rating was made more
    than a year and a half after the conclusion of my representation. My disclosures, i.e. her arrests, were public information and I did not violate attorney client
    privilege. My position was that what was good for the goose was good for the gander. I do concede that I do not believe that the rating was my finest moment.
    However, it was not unethical. That posting has subsequently been taken down.”

Long story short, the Disciplinary Review Board disagreed that it wasn’t a violation.  Citing to ABA Formal Opinion 479 and a few court decisions, the Board concluded that the lawyer’s review of the former client’s business violated the rules because the information, “although publicly available, was not generally known.”

As I’ve said before, and as my dad told me as a kid, when it comes to client confidences, lawyers would be well-served to remember this quote:

“You will have many opportunities
to keep your mouth shut.
You should take advantage
of every one of them.”
Thomas Edison

Be Quiet

Related Posts

 

 

 

 

 

 

 

Most Important? We are down to 8!

And then there were 8!

Ten days ago, I created the Professional Responsibility & Legal Ethics Tournament. I matched up 64 rules & concepts associated with PR and legal ethics in an NCAA-style bracket.  Ever since, you’ve voted, and we are down to the Elite 8 rules & concepts.  Winners of this round will advance to an historic Final Four.

To vote, go to ELITE 8.

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As the picture shows, this tournament is intentionally low-tech.  Meaning, “no tech.”  Except for the videos referenced below.  If I must say so myself, the videos are jam-packed with hot tips on legal ethics!

This morning, I posted Briefly: what matters most in legal ethics?  In it, I distilled each of the then 16 remaining rules & concepts to a single thought.  For each of today’s 8 winners, here’s the thought I shared this morning.

1.  DUTIES TO NON-CLIENTS

Candor to a Tribunal vs. Social Media: Looking, Friending & Scrubbing

  • The integrity of the system requires that judges not be misled by false evidence.
  • Evidence must not be unfairly located, obtained, concealed, or destroyed.

2.  CONFLICTS & CONFIDENCES

Screening/Imputed Conflicts vs. Same or Substantially Related Matters?

  • Fairness includes strict measures to prevent improper sharing of confidential information.
  • A lawyer cannot switch sides.

3.  TRUST ACCOUNTS, FEES and DUTIES TO CLIENTS

Who Decides? Lawyer or Client? vs. Tech Competence

  • The client chooses the destination, the lawyer the route.
  • It’s 2020.

4.  MY COUSIN VINNY

Were these MAGIC grits?  vs. Did you say “yutes?”

  • On cross, know your facts.
  • What was that your honor?

Again, to vote, go to ELITE 8.

For more, including four 15-minute videos analyzing the rules & concepts in each of the tournament quadrants, go here.  Where else can you get at least 16 tips on professional responsibility & legal ethics in 15 minutes from a speaker sitting at his Garage Bar?!?!

#prmadness

Ethical Responsibilities | Bollinger Shipyards

Briefly: what matters most in legal ethics?

Lawyers – what if you had to choose between competing duties?  What would happen to the juducial system?  Or to the profession’s standing in the public eye? If forced to choose among the rules & concepts that have advanced to the Sweet 16, of the Professional Responsibility & Legal Ethics Bracket, which are more important?

I’ve tried to distill each remaining rule/concept down to a single thought.

To vote – go here.  The original bracket is here (image only).

Duties to Non-Clients

Semi-Final 1: Candor to a Tribunal vs. Dealing with the Unrepresented Person.

  • The integrity of the system requires that judges not be misled by false evidence.
  • The integrity of the system requires that unrepresented persons not be misled into thinking that another’s lawyer is looking out for their interests.

Semi-Final 2: Mandatory Reporting vs. Social Media: Looking, Friending, Scrubbing.

  • The privilege of self-regulation includes a responsibility to report misconduct.
  • Evidence must not be unfairly located, obtained, concealed, or destroyed.

Conflicts & Confidences

Semi-Final 1: Withdrawal from Representation vs. Screening/Imputation.

  • Competence includes conflict-free representation.
  • Fairness includes strict measures to prevent improper sharing of confidential information.

Semi-Final 2: Same or Substantially Related? vs. ESI: reasonable precautions.

  • A lawyer cannot switch sides.
  • No matter where it’s stored or the form in which it’s stored, client information must be protected.

Trust Accounts, Fees, Duties to Clients

Semi-Final 1: Who decides? Client or Lawyer? vs. Trust Accounting/Bookkeeping.

  • The client chooses the destination, the lawyer the route.
  • In you they trust: keep track of their money.

Semi-Final 2: Commingling v. Tech Competence.

  • In you they trust: theirs is not yours.
  • It’s 2020.

My Cousin Vinny

Semi-Final 1:  Were these MAGIC grits? vs. Everything that guy just said is B.S. Thank you.

  • On cross, know your facts.
  • As FDR said, “be sincere, be brief, be seated.”

Semi-Final 2: The Defense is WRONG! v. Did you say yutes?

  • Competence includes realizing when your theory of the case no longer holds water.
  • Yes, and I get scared running across bridges high over mouzes of rivers.

Again, to vote – go here.

Ethical Responsibilities | Bollinger Shipyards

 

The Sweet 16

It’s official: we are down to 16.

That’s right, in the first ever* Professional Responsibility & Legal Ethics bracket, only the 16 rules, concepts and thoughts remain.  Here’s an exclusive 2-minute video of those that advanced from round 2.  Thanks to all who voted!

Who will claim the inaugural title?  Folks, I have no idea.  That’s why we play the games.

But you can help decide! To vote in the Sweet 16, go here.

#prmadness!

(* to my knowledge)

Sweet Sixteen Sweet-Sixteen - Free image on Pixabay

 

IMG_4672

Related: 

Schedule (all times EDT)

  • 3/22:  First round voting opens
  • 3/25:  First round voting closes
  • 3/25:  2nd round voting opens
  • 3/29: 2nd round voting closes: 6:00 PM
  • 3/29: Sweet 16 voting opens, 8:00 PM
  • 3/31: Sweet 16 voting closes, 7:00 PM
  • 3/31: Elite 8 voting opens, 8:00 PM
  • 4/2:   Elite 8 voting closes, 7:00 PM
  • 4/2:   Final Four voting opens, 8:00 PM
  • 4/5:   Final Four voting closes, 6:00 PM
  • 4/5:   Championship voting opens, 7:00 PM
  • 4/7:   Championship voting closes, 9:00 PM
  • 4/8:   Wellness Wednesday.  Champion announced

TV: none.   RADIO: none.   STREAMING: none.

 

 

The #prmadness bracket: first round results are in!

The votes are in and we’re down to 32 rules, concepts, and precepts associated with legal ethics and professional responsibility.  The #prmadness bracket is off to a rollicking start!

Here are the results from the first round, along with links to vote in the 2nd round.

Didn’t vote in the first round? No problem!  It’s like real-life: just because you skipped the primary doesn’t mean you can’t vote in the general.  Even better, unlike real life, you can vote as many times as you want . . . and brag about it!

Here’s the full bracket.  Now, I’ll break down the first round results quadrant by quadrant.

Conflicts & Client Confidences

This quadrant was chalk.

“Chalk” dates to the days when gambling parlors posted horse-racing odds on chalkboards.  As more and more people bet on a favorite, the odds would change.  Someone would erase the old odds, post the new odds, causing clouds of chalk dust as the money came in.  The term has survived and refers to favorites winning.

Anyhow, chalk walked here.  Only the 7 v. 10 matchup was close, with Mandatory Disclosure slipping past Permissive Disclosure with 53% of the vote.

Same or Substantially Related Matters and Prospective Clients topped the quadrant, with each receiving 77% of the vote.  Their reward?  Going against each other in Round 2!

To vote in Round 2 go to: Conflicts & Confidences – 2nd Round.

Here’s the full round:

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Trust Accounts, Fees & Duties to Clients

It’s tough to call 9 over 8 an upset, but Who Decides, Client or Lawyer? slipped past higher seeded Disputed Funds. The vote was the closest of the quadrant: 56% to 44%.

A more surprising result was in the 6 v. 11 match-up where Commingling/Own Funds in Trust topped Collected Funds with relative ease.

Top-seeded Client Communication cruised to victory, amassing a quadrant best 82% of the vote.

Sadly, none of the 2nd round contests thrill me.  Which means TV will give these games the worst timeslots.

Wait, what? You think I don’t have a broadcast deal?

To vote in Round 2 go to Trust Accounts, Fees & Duties to Clients: 2nd Round.

Here’s the first round:

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Duties to Non-Clients

Conventional wisdom holds that if you’re going to bet an underdog in the first-round of the NCAA tournament you should pick at #12 to beat #5.  The match-up has produced some of the most exciting games and upsets of the past 20 years.

Well folks, our tournament is no different!

12th seeded Dealing with the Unrepresented Person posted a convincing win over Inadvertent Receipt. And by “convincing win” I mean, it was a rout! 73-27%.

Tenth-seeded Social Media/Can I look?/Can I friend? Can I scrub upset #7 Civility by a similar margin.  Hopefully this signfies that I need to do more presentations on social media, and not that people are telling me to cut back to 6 from my 7 C’s of Legal Ethics.

To vote in Round 2 go to Duties to Non-Clients: 2nd Round

Here’s the first round:

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My Cousin Vinny

Thes quadrant is proving to be a blogger’s dream!

68 people voted in this quadrant.  The other 3 combined for 65!

Oh, by the way, so far, not a single competitor has received 100% of the vote in any match.  My use of “so far” should be a hint.   That’s right Were those MAGIC grits? did what not even Candor to a Tribunal could do! It got every vote!

It gets better: a SHOCKING upset!  2-seeds almost NEVER lose in the first round of the NCAA tourney.  Dont tell that to You Knew You Could Ask Questions, Right Vin?

There was another mini-upset in what turned out to be the closest match-up of the ENTIRE first round.  Positration/Spinning Tires/Alabmama Mud (51%) nipped And Since They Were Both Made By GM, Were Both Available in Metallic Mint Green Paint? (49%).

Finally, in Round 2, we’ve got both B.S. v. B.S. and Mona Lisa Vito taking on herself!

To vote in Round 2, go to My Cousin Vinny: 2nd round

The full round:

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#Prmadness.  You can’t beat it.  Join it!

Instant Analysis: Legal Ethics in Brief

Good morning all. I hope everyone is healthy, positive and undeterred. Row the boat!

Sunday, I published the #prmadness bracket. It’s based on the NCAA tournament brackets that, in any other year, would’ve caused a decline in workplace productivity last week. The idea is simple: I’m tying legal ethics & professional responsibility to the March Madness brackets that aren’t happening this year.

Some might call it trivial. That’s fine, it probably is. But for me, it’s also a way to stay focused on work & divert my thoughts from the outside world. For others, I hope it’s both a diversion and a fun educational tool.

And education it is. More on that in a moment.
In real life, when the tournament bracket comes out, the talking heads on tv & radio scrutinize the pairing, providing instant analysis on which teams are overrated, underrated, likely to advance, likely to fall victim to an upset. In doing so, they share quick tidbits as to the strengths & weaknesses of each team. I decided to do the same with my professional responsibility bracket.
Last night, I recorded my “instant analysis” of 3 of the quadrants in the bracket. Each is between 15 and 19 minutes long, jam-packed with one or two tips, thoughts, and reminders on each of the 16 legal ethics concepts included in the bracket. 16 tips in less than 20 minutes!  It don’t get much better than that my friends!

Anyhow, if you don’t like the videos, that’s fine. All you must do is stop watching. What’s not necessary is to send me an email complaining that you don’t like the format or how I’m dressed.

Yes, that happened. I tweeted the videos last night and, lo’ & behold, woke up to a critical email.

Dude, seriously,

Image result for you need to calm down taylor swift

Anyhow, the bracket, instant analysis videos, and links to the voting forms are below.  Except, no video for the My Cousin Vinny quadrant.  Even to attempt it, I’d violate the duty of competence.

Enjoy! And please vote!  Unlike real life, voter fraud encouraged! Vote as often as you’d like!

The Bracket (Image Only)

Top Left Quadrant:  Duties to Non-Clients

Lower Left Quadrant: Conflicts & Client Confidences

Top Right Quadrant: Trust Accounts, Fees, Duties to Clients

Lower Right Quadrant: My Cousin Vinny

 

To learn more, here’s the initial bracket announcement.

Monday Morning Answers

Good morning everyone!  Welcome to Thanksgiving week.

Spoiler alert: answers immediately to follow.  To review the quiz before I reveal the answers, go HERE.

Honor Roll

Perfect Scores in Gold

* = permanent honor roll status

Answers

Question 1

“Pretexting” is a violation that can arise in various contexts.  Of those listed below, lawyers are best reminded to avoid pretexting while using:

  • A.  Cell phones
  • B.   Cloud based practice management systems
  • C.  Trust Accounting software
  • D.  Social Media.  (Generally, pretending to be someone else, or a neutral, to access information that is otherwise private)

Question 2

Which is different than the others?

Answer A is allowed by Rule 1.5(d).  The others are prohibited by the same rule.

A fee that is contingent upon:

  • A.   the amount of past due spousal maintenance awarded in a post-judgment action
  • B.   a dismissal, plea to a reduced charge, or not guilty verdict.
  • C.  the amount of a property division in a divorce.
  • D.   the amount of child support awarded in a divorce or custody matter.

Question 3

Someone asked me a question at a CLE I did this week. I responded “well, that’s a violation in & of itself.”  Then I gave on some thoughts on what to do next.

What was the (increasingly common) question?

  • A.  I came into possession of evidence of a client’s crime.  What now?
  • B.  An ACH into my trust account was reversed.  What do I do now?
  • C.  I had a hearing the other day. I guess I’d forgotten, but I’ve been Facebook friends with the judge since well before the judge was appointed to the bench. The opposing party’s lawyer called it to my attention after the hearing. What do I do?
  • D. I have funds in trust and I don’t know who they belong to.  What do I do?

Question 4

For the purposes of the Vermont Rules of Professional Conduct, what do the following people have in common?

  • Bar counsel;
  • A lawyer in an approved lawyer’s assistance program; and
  • A lawyer on the VBA’s Professional Responsibility Committee

Exempt from the rule that requires lawyers to report misconduct of other lawyers.

Question 5

Many years ago, a Vermont lawyer moved to recuse a judge.  The judge declined.  The lawyer filed a motion to reconsider in which he stated that even a “crack whore” would recognize the conflict that the judge had missed. I prosecuted the lawyer for violating the rule that prohibits conduct that is degrading or disruptive to a tribunal.

Last month, Richard Posner, a judge on the 7th Circuit Court of Appeals, announced that he’s working on a book entitled Strengths and Weaknesses of the Legal System.  Per Posner, one of the weaknesses of the legal system is the federal judiciary, including the U.S. Supreme Court.  At a recent bookstore appearance, Posner said:

  • “I’m very critical. I don’t think the judges are very good. I think the Supreme Court is awful. I think it’s reached a real nadir.”

According to Posner, of the current U.S. Supreme Court, “probably only a couple of the justices are qualified. They’re OK, not great.”  He named two, stating that their opinions “are readable and sometimes quite eloquent.  The others, I wouldn’t waste my time reading their opinions.”

Name the two current justices who Judge Posner said are  qualified to serve on the U.S. Supreme Court.

Justices Ginsberg & Breyer.  An article on Judge Posner’s upcoming book is HERE.