Legal Ethics

Five for Friday #296

Michael 1 Comment

Welcome to the 296th Five for Friday legal ethics quiz!

Your responses to last week’s intro about grilled cheese sandwiches were amazing!  So amazing that I decided not even to bother with attempting an intro this week. Instead, I’ll bask in last week’s for another 7 days and, today, will share a few stories related to legal ethics & professional responsibility.  Oh, and I’m holding a story in reserve – a New Hampshire story that I’ll likely blog about tomorrow in the return of Was That Wrong?[1]

CIVILITY.  Numerous outlets reported on a motion for sanctions that was recently filed against a lawyer who is defending Elon Musk in a defamation suit.  Among them, Reuters, Bloomberg Law, and MSN. The sanctions bid includes allegations related to the lawyer’s behavior during Musk’s deposition. I’m not overly interested in what, if true, is yet another example of boorish, misguided behavior that has no place in the profession.  I am much more interested in the spoliation issue that Joe Patrice mentioned at the end of this post for Above The Law.   

PROSECUTORIAL MISCONDUCT. Earlier this week, I finished re-reading John Grisham’s The Guardians.  The novel highlights the work of lawyers dedicated to exonerating the wrongfully convicted.  Coincidentally, mere days after I finished the book, I came across this report of a Kansas prosecutor who is surrendering her law license (and will be disbarred) following allegations of prosecutorial misconduct that include claims that she framed an innocent man.

TECH COMPETENCE? Many of you are aware that I often speak and write on the dangers of copying a client on an electronic communication (whether text or email) to opposing counsel.  What I’ve never had reason to consider is the danger of copying opposing counsel on an email warning a colleague that a judge is about to call and that the colleague shouldn’t answer. Turns out that, as reported by the Legal Profession Blog and the ABA Journal, the danger is a public reprimand from the Massachusetts Board of Bar Overseers.

WHAT I’M FOLLOWING.  While not directly related to legal ethics or professional responsibility, it wouldn’t surprise me if allegations of misconduct fly during a criminal trial that got underway this week in Boston. For months, I’ve been fascinated with the Karen Read case. Read is charged with murdering her boyfriend, a Boston Police Officer. Her defense is that she is being framed and that other law enforcement personnel not only committed the crime but engaged in a conspiracy to pin the blame on Read.  For those of you not familiar with the case, Boston.Com ran this primer in connection with jury selection.

As always, let’s be careful out there.

Onto the quiz!

Rules

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

Question 1

Here’s language from a rule that relates to one of the 7 Cs of Legal Ethics:

“The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client.”

The language is the first of four requirements that must be met before a lawyer can __________:

  • A.  Represent a client despite a concurrent conflict of interest.
  • B.  Disclose otherwise confidential information.
  • C.  Undertake representation in a subject matter area that is new to the lawyer.
  • D.  Choose not to communicate to the client information that would otherwise assist the client to make an informed decision about to the representation.

Questions 2

Fill in the blank. Choices are below and the same word correctly fills each blank.

There’s a rule that sets out a lawyer’s duties when dealing on behalf of a client with a person who is ___________.  Per the rule, a lawyer “shall not state or imply that the lawyer is disinterested.”  A comment to the rule states that “An ___________ person, particularly one not experienced in dealing with legal matters, might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even though the lawyer represents a client.”

What’s the word?

  • A.  Incapacitated.
  • B.  Represented.
  • C.  Unrepresented.
  • D.  Adverse.

Question 3

This came up in an inquiry I received this week.

A supervisory lawyer will be responsible for another lawyer’s misconduct __________:

  • A.  Never.
  • B.  If the supervisory lawyer orders or ratifies the misconduct.
  • C.  If the supervisory lawyer knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
  • D.  B & C.

Question 4

Speaking of remedial action and the & 7 Cs of legal ethics . . .

. . . each situation below likely requires action by the lawyer. However, of the “C” rules, only one includes language that specifically requires a lawyer to take “reasonable remedial measures” in response to specified conduct by a client or witness.  Which C, and what is the conduct, stated in the rule, that requires “reasonable remedial measures?”

  • A.  Confidentiality.  The client or witness informed the lawyer that they used impermissible or illegal methods to obtain evidence from an opposing party.
  • B.  Candor.  The client or witness offered material evidence that the lawyer comes to learn is false.
  • C.  Commingling.  The lawyer comes to learn that the client or witness used the lawyer’s trust account to hide funds from creditors. 
  • D.  Conflicts.  The lawyer comes to learn that the client or witness met with another lawyer for no reason other than to disqualify the lawyer from representing the opposing party.

Question 5

Background: a category in Jeopardy a few nights ago was “the original language.” For example, a clue was “The Aeneid.”  The correct response was “What is Latin?”  Also, in Vermont, the unauthorized practice of law violates Rule 5.5 of the Vermont Rules of Professional Conduct.

In the intro, I referred to a motion for sanctions filed against an attorney representing Elon Musk in a civil case that is pending in Texas. I mentioned that the motion alleges the lawyer engaged in uncivil conduct during a deposition.  What I didn’t mention is that the motion also argues that Musk’s lawyer engaged in the unauthorized practice of law by appearing at the deposition (and filing pleadings) before being admitted to practice in Texas.  Specifically, the motion argues that the lawyer failed to secure a type of admission that, as far as I know, every U.S. jurisdiction uses a Latin term to describe. 

What’s the Latin term for the type of admission to practice that Musk’s lawyer allegedly failed to secure?

Bonus: what’s the literal English translation?

[1] The Was That Wrong? posts are so fun that, in good conscience, I can only write them on Saturday mornings.

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.

NYSBA Task Force issues guidelines on a lawyer’s use of artificial intelligence.

Michael 2 Comments

More and more guidance on a lawyer’s use of artificial intelligence is emerging.  Last December, I blogged here about advisory opinions issued by the Florida and California bars. Today, I write to share the recently released Report and Recommendations of the New York State Bar Association Task Force on Artificial Intelligence.

The report is thorough. It includes the following sections:

  • Evolution of AI & Generative AI
  • Benefits and Risks of AI and Generative AI Use
  • Legal Profession Impact
  • Legislative Overview and Recommendations
  • AI & Generative AI Guidelines

Legal ethics and professional responsibility figure prominently in two sections.

The section titled “Legal Profession Impact” includes a sub-section devoted to “Ethical Impact.” In turn, the sub-section addresses seven areas:

  • Duty of Competence
  • Duty of Confidentiality & Privacy
  • Duty of Supervision
  • Unauthorized Practice of Law
  • Attorney-Client Privilege and Attorney-Work Product
  • Candor to the Court
  • Judges’ Ethical Obligations.

I don’t want to use block quotes or regurgitate the report. Rather, if interested, I suggest reading the report.  That said, I want to draw attention to two aspects of the section on “Ethical Impact.”

The first is the quote used to open the discussion of the Duty of Competence.  The quote serves as an important reminder to any lawyer who thinks they can ignore developments in technology:

  • “A refusal to use technology that makes legal work more accurate and efficient may be considered a refusal to provide competent legal representation to clients.”[1]

Next, any lawyer or legal professional who uses generative AI would be well served by reviewing the examples of how “attorney-client privileged information or attorney-work product [could] be revealed when directing and indirectly using generative AI tools such as ChatGPT or GPT-4.”[2]

Now I’ll move on to the next section in which legal ethics figures prominently.

The “AI and Generative AI Guidelines” appear on pages 57-60. Each guideline cites to a specific conduct rule – 14 in total – and then shares a tip on how to ensure compliance with the rule when using AI. Again, I’m not going to regurgitate the rules or guidelines here. Read them.  However, as a former chair of the VBA’s Pro Bono Committee, I’ll happily reshare this. 

New York’s pro bono rule states that “[l]awyers are strongly encourage to provide pro bono legal services to benefit poor persons” and goes on to suggest that lawyers aspire to provide 50 hours of pro bono legal services per year.[3]  The Task Force’s guideline related Rule 6.1 states that artificial intelligence

  • “may enable you to substantially increase the amount and scope of the pro bono legal services that you can offer. Considering Rule 6.1, you are encouraged to use [AI or generative AI] to enhance your pro bono work.”

Finally, with AI and generative AI so entwined with a lawyer’s duty of competence and the responsibility to stay abreast of the benefits and risks of relevant technology,[4] I’m struck by how incompetent I am to blog about the topic. If anyone should be authoring this post, it’s The First Brother. PK works for Amazon Web Services. His title is “Generative AI Lead Engineer.” In a nutshell, he writes AI that allows AWS clients to automate their workflows. 

I guarantee you this: The First Brother is far more equipped to wax intelligently on legal ethics & professional responsibility than I am on generative AI.[5]  Who knows what will happen as both technology and our understanding of who should be authorized to provide legal services evolve? Maybe the legal profession will be so disrupted that the First Brother replaces me as bar counsel.[6]

You heard it here first!

As always, let’s be careful out there.

[1] Footnote 123 attributes the quote to Nicole Yamane, Artificial Intelligence in the Legal Field and the Indispensable Human Element Legal Ethics Demands, Sept. 24, 2020, Georgetown Univ. Law Center, https://www.law.georgetown.edu/legal-ethics-journal/wp-content/uploads/sites/24/2020/09/GT-GJLE200038.pdf

[2] Citation omitted. The examples appear on pages 34 and 35 of the Task Force’s Report & Recommendations.

[3] Vermont’s rule, which is similar, is here.

[4] V.R.Pr.C. 1.1, Cmt. [8]

[5] The Judiciary recently swapped out my old laptop for a new HP ProBook. It worked great in the office after the tech person set it up. At home? Different story. Took me a few hours to find the power button. Turns out, it’s a button in between “prt scr” and “delete.”

[6] More likely, AI will replace me. As I blogged here, it’s already pretty darn good at providing legal ethics guidance.

Related Posts

A lawyer’s duties when using artificial intelligence

Artificial intelligence & fabricated case law: a lesson in tech competence

Monday Morning Honors #294

Michael Leave a comment

Happy Eclipse Day! 

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

Honor Roll

  • Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labor
  • Andy Delaney, Martin Delaney & Ricci
  • Robert Grundstein
  • Ryan Kane, Vermont Deputy Solicitor General, Office of the Attorney General
  • Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
  • Douglas Keehn, Assistant Attorney General, Medicaid Fraud & Residential Abuse Unit
  • Patrick Kennedy, The First Brother
  • Jordana Levine, Marsicovetere & Levine
  • Jeffrey Messina, Flynn Messina
  • Patrick Olmstead, Patrick Olmstead Law
  • Keith Roberts, Darby Kolter & Roberts
  • Stephanie Romeo, Ryan Smith & Carbine
  • Jonathan Teller-Elsberg, Staff Attorney, New Hampshire Legal Assistance
  • Jason Warfield, Jason Warfield Family Law & Mediation

ANSWERS

Question 1

Here’s a few sentences from one of the comments to a rule.  What of the 7 Cs of Legal Ethics does the rule address?

  • “To determine whether a _______ exists, a lawyer should adopt reasonable procedures, appropriate for the size and type of firm and practice, to determine in both litigation and nonlitigation matters the persons and issues involved. Ignorance caused by a failure to institute such procedures will not excuse a lawyer’s violation of this rule.”

CONFLICT OF INTEREST.   V.R.Pr.C. 1.7, Cmt. [3]

Question 2

Some might consider it a distinction without a difference, but which is correct?  Vermont’s rule on fees:

  • A.  prohibits a lawyer from charging an unreasonable fee.  See, V.R.Pr.C. 1.5.
  • B.  requires a lawyer to charge a reasonable fee.

Question 3

Another C.   A comment to the rule that addresses this “C” acknowledge that compliance with the duty “can result in grave consequences to the client, including not only a sense of betrayal but also loss of the case and perhaps a prosecution for perjury.”  Still, compliance is required.

Which C?

CANDOR.   V.R.Pr.C. 3.3, Cmt. [11]

Question 4

Imagine this situation: Person meets with Lawyer to discuss forming a client-lawyer relationship. Person took the meeting in good faith. That is, Person did not take the meeting for no other purpose than to disqualify Lawyer from representing anyone else in the matter.  Nevertheless, following the consultation, Person decides not to retain Lawyer. Now, someone else wants to retain Lawyer in the same matter.

Which is most accurate?

  • A.  Vermont has a rule that addresses this exact situation.  The rule sets out the duties a lawyer owes to a prospective client.
  • B.  Vermont does not have a rule that addresses this exact situation.  Rather, Person will be deemed a “Current Client” and the situation analyzed under the rule that addresses “concurrent conflicts of interest.”
  • C. Vermont does not have a rule that addresses this exact situation.  Rather, Person will be deemed a “Former Client” and the situation analyzed under the rule that addresses the duties owed to former clients.
  • D.  Mike, I object to the premise of your question.  There is no world in which a client could possibly decide against retaining me after having met me.

I blogged about the rule 3 times last week. The posts are:

Question 5

It has been far too long since Question 5 involved My Cousin Vinny. So, with the intro having involved gambling, here we go!

My Cousin Vinny includes a famous scene in which Vinny explains offers, counteroffers, and negotiations.  The explanation is part of his attempt to collect bet that Mona Lisa Vito had won, but that the loser had not paid.

What had Mona Lisa Vito (successfully) bet on herself to win?

And because I set the rules here and am allowed blogger’s license, no credit for anyone who suggests that it was more of a hustle than a bet.

A game of pool.  The “collection” scene is here.

Five for Friday #292

Michael 2 Comments

Welcome to the 292nd Five for Friday legal ethics quiz!

So, I had a huge victory this week.  Well, huge to me anyways. It involved Jeopardy, my mom, and my late, great Uncle Ron.

I’ve previously introduced you to my mom and her father. Besides my mom and her four sisters, Nanny & Papa had one son, Ronald Edward Bonneau – aka “Uncle Ron.”

Uncle Ron spent his adult life as a Catholic priest in the Redemptorist Order.  In 1972, he was assigned to a parish in Paraguay, the country where he spent the next 24 years as a missionary. Returning to the USA in 1996, Uncle Ron spent most of the rest of his life working in (often Spanish speaking) parishes in New York City, Toronto, and Annapolis. You can read more about him in his obituary.

The First Brother and I didn’t view Uncle Ron as a priest as much as we did as our quirky, fun-loving uncle. My brother actually lived with Uncle Ron for 10 months.  That’s right, Patrick spent almost a year living at the parish house at Most Holy Redeemer, a church in Alphabet City in the East Village.

I never lived with Uncle Ron. However, whenever he visited Vermont, he stayed with me. Even my mom and her sisters will admit that, sometimes when you’re visiting your sisters, things go better when you stay with your nephew. I proudly served as his getaway on his getaways, and was humbled when he started referring to my condo as his personal “B&B” – Bed and Bourbon.

Now, three things.

Uncle Ron was loud, he loved to watch tv, and he was loud while he watched tv. Upon returning from a day of activities with his sisters, he’d pour himself a bourbon, commandeer the remote, and move his favorite rocking chair directly in front of my television.  And that’s when the loud would begin.

Uncle Ron loved to talk to (and yell at) the characters on his favorite shows. He was particularly fond of the NCIS and Law & Order franchises. He never hesitated to yell at Jack McCoy, Special Agent Riggs, and everyone else when they were doing something foolish. I’m not exactly into “loud,” preferring the quiet of my normal life. But on Uncle Ron’s stays, I enjoyed the entertainment value. Not only of his conversations with fictional people, but of his channel surfing. 

As you probably know, on any given evening, it’s likely that different episodes of Law & Order (or NCIS) are running on multiple channels/streaming sources at the same time. Not only different episodes, but episodes from different canons. For instance, the original Law & Order might be on X at the same time that Law & Order: SVU is on Y. 

Uncle Ron loved this.  As soon as one hit commercial, he’d switch to another. He switched so often that he frequently got confused, forgetting, for instance, that Riggs wasn’t on NCIS: New Orleans and had no reason to know the details of the New Orleans episode that Uncle Ron had just left. As you might imagine, this only caused him to yell even more, convinced that it was the characters, not him, who were confused.

Anyhow, I digress.  Here’s the point of today’s introduction.

My mom, my brother, and I are big fans of Jeopardy. Last summer, while watching together at my mom’s, I learned that Patrick used to watch with Uncle Ron when they lived together in NYC. He told me that as soon as the Final Jeopardy category was revealed, but before the clue was shown, Uncle Ron would yell out a wild guess. I decided that this was a fantastic idea and something worth carrying on as a sort of family tradition. So, ever since, that’s what I do: I yell my guess the moment the FJ category is revealed.

Actually, when I’m watching alone, I don’t yell. I save the yelling for when I’m watching with mom.  Why? Because I know that while she dearly loved her brother and dearly loves me, she doesn’t necessarily find our shenanigans amusing. So, I yell. When she frowns, I remind her that Uncle Ron is watching and, in a sense, controls whether she’ll pass the pearly gates.

Which (finally) gets me to the victory I scored this week.

Since deciding to emulate Uncle Ron last summer, my wild (and loud) guess based only on the category has not once been correct.  Until a few days ago when Ken revealed this FJ category:

As fate had it, I was watching with my mom. I immediately yelled “HUEY LONG!!!”  Even my mom had to smile when, after fast-forwarding thru the commercial break, we saw this clue:

Victory indeed!  And here’s to Uncle Ron!

Onto the quiz!

Rules

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

Question 1

Here are some words & phrases that I used when responding to an ethics inquiry:

  • Concurrent
  • Significant risk
  • Materially limited by the lawyer’s responsibilities

Which of the 7 Cs of Legal Ethics was the subject of the inquiry?

Question 2

By rule, how long after the termination of a representation must a lawyer maintain complete records of funds & property held in connection with the representation?

  • A.  3 years.
  • B.  6 years.
  • C.  7 years.
  • D.  Trick question. The rule is silent on this issue.

Question 3

A lawyer has a duty to reasonably consult with the client about the means by which the client’s objectives are to be accomplished.

  • A.   False.  The lawyer controls the means and is under no duty to consult with the client about the means by which the client’s objectives will be pursued.
  • B.   False.   The lawyer must abide by a client’s decisions with respect to the means by which the client’s objectives are pursued.
  • C.   True.

Question 4

Over the years, I’ve used each of these phrases when responding to inquiries. Which is in a different rule than the others?

  • A.  don’t state or imply that you’re disinterested.
  • B.  if the person is seeking a second opinion from you, you don’t need the consent of the person’s current lawyer to communicate with the person.
  • C.  if the person misunderstands your role, correct the misunderstanding.
  • D.  if the person’s interests are likely to conflict with your client’s, don’t give the person any legal advice other than the advice to secure counsel.

Question 5

Speaking of uncles and nephews.

William “WW” Watkins Vaughan was a lawyer in Pawhuska, Oklahoma.  In June of 1923, Vaughan met with a prospective client named George Bigheart.  At the time, Bigheart was in a hospital in Oklahoma City.  Doctors suspected he had been poisoned.  Bigheart told Vaughan that he had information that could prove that two men had committed/arranged numerous brutal murders in another part of the state. 

That night, Vaughan boarded a train back to Oklahoma City. He never arrived. The next morning, a porter who went to wake him, found his berth empty and unused.  Later, Vaughan was found dead on the tracks just a few miles outside Pawhuska.  Bigheart died in the hospital on the same day.

The two men who Bigheart suspected of murder likely poisoned him.  One was later convicted of murder after the other, his nephew, pleaded guilty to murder and agreed to testify against his uncle.  A lawyer who worked for the uncle was sent to prison for 1 year for bribing a witness to change her testimony.

A movie about the brutal crimes committed by the uncle and nephew is currently streaming on Apple TV and is available to buy or rent on Amazon Prime.

Name the movie, which is based on a book.

Do employment agreements that require a departing lawyer to compensate the firm for clients that follow the lawyer violate the Rules of Professional Conduct?

Michael 1 Comment

Here’s today’s issue:

  • Can a law firm ethically require a departing lawyer to compensate the firm for clients that go with the departing lawyer?

It’s an issue I’d never considered until yesterday, when a regular reader alerted me that the Colorado Supreme Court had recently addressed it.  The tip led me to finding this opinion, as well as the ABA Journal’s article about the opinion.

Here’s what happened.

Per the opinion, in 2019, and while employed at Firm, Lawyer

  • “signed a ‘Reimbursement Agreement’ that required him ‘to reimburse [Firm] for marketing expenses related to any client, case or active matter’ that left the firm and followed him. Recognizing that ‘actual expenses may be difficult to determine,’ the agreement provided that ‘historic costs directly related to marketing expenses’ for each client of the Denver office were $1,052. Thus, for each client who chose to continue being represented by [Lawyer] the agreement required him to pay [Firm] $1,052, whether or not there was evidence that [Firm] had expended marketing funds on that client. If [Lawyer] did not pay the total amount owed under the agreement within thirty days of departing the firm, he would owe interest accruing at a rate of 1.5% per month (18% per year) on any unpaid amounts.”

Five months after signing the agreement, Lawyer left Firm.  18 clients went with Lawyer.  Firm demanded payment pursuant to the Reimbursement Agreement.  According to the opinion, “[w]hen [Lawyer] refused to pay, the firm sued for breach of contract. At trial, both parties asked the court to determine whether the agreement was enforceable under Rule 5.6(a).”

A few paragraphs ago, you might have been asking yourself “Self, is there a rule on that?”  Now you’re probably asking “Self, what’s Rule 5.6?” 

Fear not! I’m here to help.

But for the title, Colorado Rule of Professional Conduct 5.6 is identical to Vermont’s.[1]  Here, V.R.Pr.C. 5.6 is titled “Restrictions on Right to Practice.”  It prohibits a lawyer from participating “in offering or making

“(a) a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or

(b) an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a client controversy.”

Ater a trial and an intermediate level appeal, the Colorado Supreme Court “granted certiorari to determine whether (1) a firm may ever contractually require a departing lawyer to pay a per-client fee for each client the lawyer takes with them and (2) if so, how to determine the reasonableness of such an agreement.”

The Court began its analysis by noting a jurisdictional split in opinion. 

First, the Court stated that “[t]he majority view . . . holds that any contractually imposed financial burden on an attorney’s professional autonomy violates the rule.”[2] (emphasis in the original). 

Next, the Court explained that “[t]he minority view

  • “does not treat financial disincentives to departure and competition as per se violations of Rule 5.6(a). Instead, these cases evaluate agreements for whether they represent a reasonable balance between client choice and attorney autonomy on the one hand and a firm’s interest in financial and practice stability on the other.”[3]

In the end, the Colorado Supreme Court adopted the minority view.  More specifically, the Court held “that the reasonableness inquiry is the appropriate approach to assessing whether a particular financial disincentive imposed on a departing lawyer constitutes a restriction on the right to practice.” The Court went on to conclude “that an undifferentiated fee assessed for each client who chooses to follow a departing lawyer violates Rule 5.6(a).”

I understand that block quotes can be a pain to read and, at times, reflect a lazy blogger.  However, here, I think the Colorado Supreme Court’s reasoning is important.  The Court wrote:

  • “An agreement that requires a lawyer to pay a former firm such an undifferentiated fee is fundamentally at odds with the twin policy goals of Rule 5.6(a): to protect lawyers’ professional autonomy and to ensure that clients have the freedom to choose an attorney. As the Ethics Advisory Committee of the Arizona Supreme Court recognized when considering a similar agreement, it ‘acts as a substantial disincentive for the departing lawyer to agree to continue representing a client who wants to continue working with that lawyer.’ Of particular concern, such a fee forces attorneys to make individualized determinations of whether a client is ‘worth’ retaining and incentivizes them to retain clients in high-fee cases and to jettison clients with less lucrative claims. This direct intrusion on the attorney-client relationship is quite different from financial disincentives that might indirectly affect client choice by making it more costly for an attorney to leave a firm. No reasonableness analysis is needed to determine that per-client fees of the sort at issue here violate Rule 5.6(a).” (citations omitted).

Nevertheless, the Court went on to note that:

  • “there could be circumstances that justify a firm seeking reimbursement of particular costs that it incurred for or expended on a client. If, for example, the firm had advanced litigation costs for a client or expended unusual funds to attract a particular client, it might be reasonable and consistent with Rule 5.6(a) to expect the exiting lawyer to reimburse those costs.”

However,

  • “[b]ecause we are not presented here with any client-specific cost scenario, we need not (and do not) decide the questions such a scenario might present. What we do conclude is that a fee of the type imposed here—one based not on specific spending for a client but imposed without any individualized assessment of every client who wishes to maintain an attorney-client relationship with a departing attorney—violates Rule 5.6(a).” [4]

Again, until yesterday, I’d never thought about the ethics of contractual provision like the one at issue in the Colorado case. However, forced to do so, I’d guess that such provisions might exist in agreements between Vermont law firms & lawyers.

If so, to the extent that Vermont might adopt the majority view, such provisions should give pause. On the flip side, if you are a lawyer who has signed such an agreement, don’t count on it being unenforceable. The possibility remains that Vermont adopts the minority view and enforces agreements that strike a reasonable balance “between client choice and attorney autonomy on the one hand and a firm’s interest in financial and practice stability on the other.”

As always, let’s be careful out there.

[1] To be clear, this post is educational and should be taken in that vein.  I am not offering guidance or a prediction on how Disciplinary Counsel, a hearing panel, or the Vermont Supreme Court would interpret Rule 5.6’s applicability to a Vermont agreement similar to the agreement at issue in the Colorado opinion.

[2] According to the opinion, the majority view is followed in [at least] New Jersey, Nebraska, Connecticut, Virginia, Tennessee, Iowa, and New York.

[3] According to the opinion, California and Arizona employ the minority view.

[4] The Court went on to hold that, as a matter of public policy, an agreement that violates the Rules of Professional Conduct is not enforceable.

Related Posts

Other Resources

A lawyer’s duties when using artificial intelligence.

Michael

As we approach 2024, I’ll address one of the “hot topics” of 2023: legal ethics and the use of Artificial Intelligence (AI).

I’ve been straightforward on the issue.

Rule 1.1 requires a lawyer to provide competent representation. Comment [8], captioned “Maintaining Competence,” states that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”  AI is relevant to the practice of law.  Ergo, a lawyer should be aware of the risks & benefits associated with its use.

This year, several incidents highlighted one of the risks: legal memos created by generative AI that include citations to cases that do not exist in real life.[1] The most notable example involved the Avianca matter that I blogged about here.[2] 

In my opinion, the lesson to be drawn from the “hallucination” examples is NOT that a lawyer violates the rules by using generative AI to draft memos or motions. Rather, it’s that a lawyer who does so remains responsible for the work and should check the cites.[3]

Of course, having described it as “straightforward” above, I recognize that my guidance verges towards the simplistic. The bar deserves more than “your duty is to understand AI’s risks and benefits.” So, today, I’m sharing three resources that I hope will help.[4]

Earlier this year, the California State Bar’s Standing Committee on Professional Responsibility and Conduct published Practical Guidance For The Use Of Generative Artificial Intelligence In The Practice Of Law. It includes “guiding principles” that address various duties owed by lawyers. Without delving into each, they are confidentiality, competence, diligence, communication, fees, meritorious claims & contentions, candor to a tribunal, supervising staff, acting at the direction of a supervising lawyer, complying with court rules, abiding by the law, and avoiding conduct that involves prohibited bias.

More recently, the Florida Bar published for comment Proposed Advisory Opinion 2024-1 — Regarding Lawyers’ Use of Generative Artificial Intelligence. The opinion discusses the duties of confidentiality, oversight, fees & costs, and lawyer advertising.

Finally, in November, JDSupra posted Ethical AI Guideposts for Lawyers Using Generative AI. Besides good tips, it includes an interesting (to me) comment on the judicial response to hallucinations:

“Judge Xavier Rodriguez, a learned U.S. District Judge in the Western District of Texas, eloquently encapsulated the problem of judicial over-regulation in response to generative AI missteps:

‘Some judges (primarily federal) have entered orders requiring attorneys to disclose whether they have used AI tools in any motions or briefs that have been filed. This development first occurred because an attorney in New York submitted a ChatGPT-generated brief to the court without first ensuring its correctness [Mata case referenced above]. The ChatGPT brief contained several hallucinations and generated citations to nonexistent cases. In response, some judges have required the disclosure of any AI that the attorney has used. As noted above, that is very problematic considering how ubiquitous AI tools have become. Likely these judges meant to address whether any generative AI tool had been used in preparing a motion or brief. That said, if any order or directive is given by a court, it should merely state that attorneys are responsible for the accuracy of their filings. Otherwise, judges may inadvertently be requiring lawyers to disclose that they used a Westlaw or Lexis platform, Grammarly for editing, or an AI translation tool.’ 24 The Sedona Conference Journal at 822.”

Over the next few months, I’ll try to do a detailed post about each of the duties implicated by the use of AI. Not today.  Today’s goal was to share resources.

I’ll end with this.

I’ve long urged lawyers not to fear technology.  For almost as long, I’ve argued that it’s usually not technology that gets a lawyer into hot water. It’s something that would get the lawyer into hot water even if done in a non-digital world.  For example, failing to check cites before submitting a memorandum. Yes, the Avianca case resulted in the court sanctioning the lawyers. However, in doing so, the judge specifically noted that “[t]echnological advances are commonplace and there is nothing inherently improper about using a reliable artificial intelligence tool for assistance.”[5]

As always, let’s be careful out there. 

[1] Known as a “hallucination,” this risk is not limited to the legal profession. Rather, at least in its early stages, generative AI sometimes presents as fact something that is not.

[2] See also, Mata v. Avianca, 22-cv-1461, 2023 WL 4114965, (S.D.N.Y. June 22, 2023).

[3] As I’ve stated at seminars, if a lawyer asked an associate or paralegal to prepare a memo and submitted it to the court without checking the work, we wouldn’t be calling to ban the use of associates or paralegals if, in this instance, the associate or paralegal intentionally included fake citations that the lawyer failed to notice. We’d be reminding lawyers that they are responsible for their work.

[4] I’m struck by how much generative AI drove 2023’s discussion of the legal ethics issues associated with AI.  AI isn’t new and isn’t limited to generative AI. Indeed, in 2019, Squire Patton Boggs published Legal Ethics in the Use of Artificial Intelligence.  The posts tips remain relevant today.

[5] Mata v. Avianca, 22-cv-1461, 2023 WL 4114965, at 1 (S.D.N.Y. June 22, 2023).

Five for Friday #289

Michael 5 Comments

Welcome to Friday and the 289th legal ethics quiz!

A few weeks ago, the quiz included a reference to a Burger King jingle from my youth.  Today’s intro harkens back to another 1980s ad campaign.

Oh, and this intro stinks.

Just over a year ago, I posted Finally – misconduct that left even me in disbelief.  The post shared the story of an Ohio lawyer who had been charged with professional misconduct. A few weeks later, I followed up with this post in which I outlined how the lawyer might be charged in Vermont given that we do not have the same rule that he was charged with violating in Ohio.

Today, thanks to an eagle-eyed regular reader who alerted me to the fact, I’m here to report that the Ohio charges have been resolved.  As reported two days ago by Court News Ohio, the Ohio Supreme Court imposed a one-year suspension with six months stayed. 

I know what you’re thinking: “Mike, what’d this lawyer do?” 

As stated in the opening paragraph of the Ohio Supreme Court’s opinion, the lawyer was charged with “throwing a feces-filled Pringles can into the parking lot of a victim-advocacy center involved in a capital-murder case in which Blakeslee was representing the defendant.”

You read that correctly.

At the trial level, the parties advanced competing arguments about the lawyer’s intent. The disciplinary prosecutor contended that the lawyer intentionally targeted the victim-advocacy center. Here’s how the Ohio Supreme Court characterized the lawyer’s position:

  • “During his disciplinary hearing, [the lawyer] testified that he had engaged in similar misconduct on at least ten other occasions that year and that he randomly chose the locations where he deposited the Pringles cans containing his feces. He also specifically denied having any knowledge that the parking lot in question belonged to [victim advocacy center] when he threw the can from his vehicle.”

That’s right.  Charged with intentionally targeting the victim advocacy center, the lawyer’s defense was, essentially, “oh no, it had nothing to do with them. I’ve done this before. Many times.”

I’ll stop there. For more detail, including the fact that at both the trial level and intermediate stage of review, the recommended sanction was a public reprimand – not suspension – check out the full opinion.

Oh – the other jingle?

Let’s just say that the Ohio story doesn’t exactly leave me with the fever for the flavor of new Pringles.

As always, let’s be careful out there.

Onto the quiz!

Rules

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

Question 1

It’s rare for the Rules of Professional Conduct to refer to specific practice areas or types of cases.  However, there’s one rule that both to criminal defense and divorces.  What’s the subject of the rule?

  • A. Conflicts of Interest.
  • B. Communication.
  • C. Candor to the Tribunal.
  • D. Contingent Fees.

Question 2

Sadly, this question is one that I receive between 5-8 times per year.

This morning, Client shared information with Lawyer that caused Lawyer reasonably to believe that Client intends to take their own life.  Lawyer wants to disclose Client’s intent to someone who can intervene.  Under Vermont’s rules, Lawyer:

  • A.  must not disclose Client’s intent.
  • B.  must disclose Client’s intent.
  • C.  may disclose Client’s intent.
  • D.  this situation is not covered by the Vermont Rules of Professional Conduct.

Question 3

Lawyer called me with an inquiry.  I listened, then said: “it depends, did you receive information that could be significantly harmful to that person?”

My words “that person” refer to:

  • An unrepresented person who is adverse to Lawyer’s client and who inadvertently communicated with Lawyer.
  • B.  a represented person who is adverse to Lawyer’s client and who directly communicated with Lawyer without going through counsel.
  • C.  A juror who approached Lawyer as the two were leaving the courthouse at the lunch break during a trial.
  • D.  A person who discussed potential representation with Lawyer but who did not retain Lawyer.

Question 4

Later today, I’m doing a CLE for the VBA’s Bankruptcy Section. Depending on how the seminar goes, I might get to a section where I urge caution when it comes to (1) last minute changes to wire instructions; and (2) an out of state client who only communicates via email and who is seeking representation to assist in collecting a debt allegedly owed by someone in Vermont.

Each is an example of common ____________ that target lawyers.  (Correct answers will not necessarily include the same amount of words that fill in the blank)

Question 5

Again, I’m doing a presentation for the VBA’s Bankruptcy Section later today. So, bankruptcy is the topic for Queston 5.   

I’m feeling generous. One question involves an old-time holiday classic, while the other relates to a much modern pop culture reference to bankruptcy.  Choose your own adventure!

Question 5A – The Classic

Name the holiday movie in which George is so mad that Uncle Billy misplaced $8,000 that he yelled:

  • “Where’s that money, you stupid, silly old fool? Where’s the money?! Do you realize what this means? It means bankruptcy and scandal and prison! That’s what it means. One of us is going to jail! Well, it’s not gonna be me!”

According to a current day bankruptcy expert:

  • “It’s unclear whether George meant bankruptcy for himself or for the Building & Loan.  Even less clear is whether the B&L would have been eligible for bankruptcy protection under the Bankruptcy Act of 1898 (“banking corporations” were ineligible).  It definitely would not be eligible under Section 109 of the Bankruptcy Code (specifically excluding “building and loan associations”) from bankruptcy eligibility.”

Question 5B – More Modern

My favorite pop culture bankruptcy.  It’s from a TV show that aired from 2005-2013.  The following lines are from Season 4’s episode Money. I’ve changed the speakers’ names to their first initials. Your task: name the show.

C:           Listen, I’ve got the answer. You declare bankruptcy, all your problems go away.

M:          How would that help Creed? In Monopoly when you go bankrupt, you lose.

C:           You don’t go by Monopoly man, that game is nuts. Nobody just picks up “get out of jail free” cards, those things cost thousands.

M:          That is a good point.

C:           Bankruptcy, M, is nature’s do-over. It’s a fresh start, it’s a clean slate.

M:          Like the witness protection program.

C:           Exactly.

O:           Not at all.

M:          I’ve always wanted to be in the witness protection program. Fresh start, no debts, no baggage. I’ve already got my name picked out, Lord Rupert Everton. I’m a shipping merchant who raises fancy dogs. That’s the life.

M.          (standing on a chair) I . . . DECLARE . . . BANKRUPTCY!

O:           Hey, I just wanted you to know that you can’t just say the word bankruptcy and expect anything to happen.

M.   I didn’t say it. I declared it.

Wellness Wednesday: You Can Do Hard Things.

Michael 1 Comment

You can do hard things.

Let’s do it together. On the count of 3, and either out loud or in your head, tell yourself “I can do hard things.”

One, two, three: I can do hard things!

I don’t remember how or where I stumbled upon the mantra. Most likely it was suggested to me by Instagram’s algorithm. It’s a phrase in which I wholeheartedly believe.

I first employed it while training for a marathon. 

  • It’s hard to get up early every single day to run before work. 
  • It’s hard to get through yet another speed workout.
  • It’s hard to get up yet another hill.
  • It’s hard to keep going when nothing in your mind or body wants to.

So, whether lying in bed at 4:30 AM, or doubtful that I had another “fast” quarter mile in me, or at the bottom of the steepest hill of the run, I started to tell myself “I can do hard things.”

And you know what?  When faced with the situations above, reminding myself that I can do hard things helped me to get way better at:

  • Dragging my butt out of bed to hit the pavement before sunrise.
  • Finishing a full set of 400-meter repeats.
  • Not walking up the hill.
  • Going the final mile or two.

Most importantly, I came to believe that I could do hard things. 

Ever since, the belief hasn’t only stayed with me in my running, it’s spread to other areas of my life.  I’ve often repeated the mantra in both my professional & personal lives. As it did with my running, it has helped me to get through situations upon which I might previously have quit.

What’s this got to do with wellness?

It’s HARD to look out for our own well-being and the well-being of our colleagues!

As individuals, it’s hard to achieve (or come close to achieving) work-life balance.  It’s hard to do things like sleep enough, pursue an interest outside the law, not have that extra drink on a Tuesday night, or, take time away – truly away – from work & clients & opposing counsel.

But you can do hard things.

Similarly, it’s hard to muster the courage to ask a colleague if they need help. Or to intervene with a colleague who clearly does.

But you can do hard things.

In closing, I’ll give you a place to start.

Is it hard to stay late at work to finish a project on deadline when doing so will cause you to miss an important personal or family event? Yes.

But I’d wager that nearly everyone reading this post has done so at some point in their legal career.  If you have, then, in a sense, you’ve shown you’re capable of doing hard things.

So, over the holiday season, there will come a time when, despite your best efforts to convince yourself otherwise, the work can wait. When that time comes, it will be hard to call it a night, pursue a semblance of work-life balance, and leave the work for tomorrow. But remember: you can do hard things.

As always, let’s be careful out there.

And let’s be kind to ourselves & others, no matter how hard it might be.  Because, one last time: one, two, three:

I can do hard things!

P.S. — I’m updating the post to include my most recent “First Day of ______” picture. Here’s Chemo: First Day of Round 3:

Related Material

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