Copying Clients on Emails to Opposing Counsel

As I’ve made the rounds this CLE season, one topic has proven especially provocative. While I’ve been blogging about it and mentioning it for a few years now, it has never generated as much discussion as it has lately. Here’s how I introduce it:

  • “How many of you have received an email from opposing counsel that opposing counsel copied to their client?”

Hands shoot up, heads nod vigorously, and eyes roll in exasperation.

Side note: when I introduce the topic, nearly everyone reports having received an email that opposing counsel has copied to their client. I find that somewhat amusing.  What are the odds that it’s only the recipients – and never the senders – who attend CLEs?

Anyhow, given the recent interest, here’s a post that I originally published in March.

legal ethics

******

March 23, 2022

I’ve long expressed concern about a lawyer copying a client on an email to opposing counsel.  I’m here to do so again.

A few weeks ago, Brian Faughnan posted his reaction to the Washington State Bar Association’s (WSBA) release of Advisory Opinion 202201.  I recommend Brian’s post.

Here’s the scenario presented in the WSBA opinion:

  • Lawyer A represents Client.
  • Lawyer B represents someone else in the same matter.
  • Lawyer A sends an email to Lawyer B.
  • Lawyer A copies the email to Client.

As have most to address the issue, the WSBA opinion focuses on the duties of the receiving lawyer.  That is, does the receiving lawyer violate Rule 4.2  by replying to all?  In a nutshell, the WSBA concluded:

  • “Short answer: It is the opinion of the Committee on Professional Ethics that “Reply All” may be allowed if consent can be implied by the facts and circumstances, but express consent is the prudent approach.”

In its longer answer, the WSBA set out the factors that the receiving lawyer should consider when assessing whether the sending lawyer impliedly consented to a “reply-all.”  Then, the WSBA advised:

  • “To avoid a possible incorrect assumption of implied consent, the prudent practice is for all counsel involved in a matter to establish at the outset a procedure for determining under what circumstances the lawyers involved may “reply all” when a represented party is copied on an electronic communication.”

I don’t necessarily disagree. However, I continue to believe that the sending lawyer’s duties to the client are as important to the analysis. Indeed, as Brian noted in his blog post:

  • “What the opinion does not address is the flip side of the situation – does the first lawyer who decides to loop his client directly into a conversation by cc’ing them on an email to opposing counsel run the risk of an ethical violation in doing so. Given the trend in various ethics opinions addressing the obligations of the receiving lawyer, there seems to be a good measure of safety for the sending lawyer, but I continue to believe that there is almost never a good reason outside of very limited circumstances for proceeding in this fashion.”

I agree!  Here are few reasons why sending lawyers should think twice about the client cc.

Last year, the New Jersey Supreme Court’s Advisory Committee on Professional Ethics issued ACPE Opinion 739.  I blogged about it here.  The Committee concluded:

  • “Lawyers who initiate a group email and find it convenient to include their client should not then be able to claim an ethics violation if opposing counsel uses a ‘reply all’ response. ‘Reply all’ in a group email should not be an ethics trap for the unwary or a ‘gotcha’ moment for opposing counsel. The Committee finds that lawyers who include their clients in group emails are deemed to have impliedly consented to opposing counsel replying to the entire group, including the lawyer’s client.”

The Committee went on:

  • “If the sending lawyer does not want opposing counsel to reply to all, then the sending lawyer has the burden to take the extra step of separately forwarding the communication to the client or blind-copying the client on the communication so a reply does not directly reach the client.”

Now, as far as I know, the New Jersey opinion is the only to conclude that the mere fact of copying a client on an email to opposing counsel is consent for opposing counsel to reply to all. However, other jurisdictions have cautioned that it’s not best practice.

For instance, in Opinion E-442, the Kentucky Bar Association stated:

  • “Avoiding use of ‘cc’ also prevents the client to inadvertently communicate with opposing counsel by hitting the ‘reply all.’ ”

In Ethics Opinion 2018-01, the Alaska Bar Association urged caution, advising that there are situations in which lawyers who cc their clients on emails to opposing counsel risk waiving the attorney-client privilege.

Finally, in Formal Opinion 2020-100, the Pennsylvania Bar Association agreed with Kentucky and noted:

  • “When a client is copied on email (either by carbon or blind copy), the client or its email system may default to replying to all. In doing so, the client may reveal confidential information intended only for his or her lawyer or waive the attorney-client privilege.”

The opinions include helpful examples of how the privilege might be waived. In addition, each concludes that it’s best practice for the sending lawyer not to cc the client and, instead, to forward to the client the email that was sent to opposing counsel.

Of course, I’m sure many lawyers are yelling “but Mike!!!”  I get it.  Indeed, as Brian blogged:

  • “Now transactional lawyers may be screaming at me here for my naivete, but, unless you are truly trying to mimic a situation where lawyers and clients are all sitting around the table and having a discussion, I don’t think including all of those parties on an email thread makes sense. (And, it’s 2022, if that’s what you are trying to do then use some other communications platform at this point whether that be Zoom or WebEx or Teams or something else.) Otherwise, whatever you want your client to see, just forward the email thread to them separately. Doing anything else, absent a clear agreement among the counsel involved about whether communication is permitted is simply an unnecessary risk to take.”

To be clear, I’m not stating that a lawyer violates the Rules of Professional Conduct by cc’ing a client on an email to opposing counsel.  Nor is it my role to do so. That’s a decision left to Disciplinary Counsel, a hearing panel, and, ultimately, the Vermont Supreme Court.  Also, I understand that there will be situations in which the sending lawyer impliedly consents to a reply-all or doesn’t cause any undue risk when copying a client.

Still, my role includes lending guidance. When doing so, I tend to urge lawyers to avoid risk. Hence, I agree with the numerous jurisdictions and commentators who think that it’s best practice not to copy a client on an email to opposing counsel. If only to avoid the risk of the client mistakenly replying to all.

I’ll end with this.  Many will think I’m making it up. I’m not, and I have the time stamps to prove it.

As I was drafting this post, I received an email from a criminal prosecutor.  Here’s what the prosecutor wrote:

  • “Hi Mike – I have a question about when a defense attorney cc’s a client on an email to me.  If memory serves, when responding, I should remove the client from the email chain as that could be considered contact with a represented individual.  Is that still the recommended practice?”

In my opinion, yes.  But in New Jersey? Maybe not.

More importantly, the prosecutor’s scenario demonstrates the risk in copying a client on an email to an opposing counsel.  Can you imagine if a criminal defendant mistakenly replies all and discloses information that is subsequently used against them?

As always, be careful out there.

*****

Related posts:

Advisory Opinions

Breaking News Alert!! In fact there IS a legal ethics quiz this week!

Welcome (very belatedly) to Friday and the 257th legal ethics quiz!

With CLE season in full-swing, I’ve not blogged much lately and wasn’t going to post a quiz today.  Further, I don’t believe I’ve ever published a quiz that, like today’s, is the week’s only post. Rather, the Friday quizzes have served as a sort of dessert that follows the week’s meal of substantive posts on legal ethics and professional responsibility.

Then, a few minutes ago, I was struck by this thought: “Mike, what would we have written about in this week’s intro had we posted a quiz?”  I replied: “Self, great minds truly think alike! I was just asking us the same thing!”  So, we fired up the Google Machine to research “257” and “June 17.”

Aside: candidly, I was hoping that my high school graduation had fallen on June 17.  If it had, I would’ve posted this picture from my senior year:

IMG_2557

Alas, no such luck. Either with the date or with maintaining that flow as I aged!

However, and much more seriously, June 17 is an important day in legal ethics.  50 years ago today, “The Plumbers” broke into the Democratic National Committee’s headquarters at the Watergate complex.  The rest is history.

What’s that got to do with legal ethics?   Excellent question!  Here’s the answer.

In 2014, the ABA Journal published Watergate’s lasting legacy is to legal ethics reform, says John Dean.”  As the post notes, the role that lawyers played in the scandal resulted in:

  • the ABA directing law schools seeking accreditation to require that students take a class in legal ethics before graduating;
  • states requiring applicants for admission to the bar to pass the MPRE; and,
  • states mandating continuing legal education in ethics and professional responsibility.

The impact went further.

In 2012, the ABA Journal posted The Lawyers of Watergate: How a “3rd-Rate” Burglary Provoked New Standards for Lawyer EthicsThe article outlines how Watergate eventually resulted in the ABA’s 1983 vote to replace the Model Code of Professional Responsibility with the Model Rules of Professional Conduct.  The Vermont Rules of Professional Conduct are based on the ABA Model Rules.

The 2012 post also briefly delves into the history of Rule 1.13.  The rule governs the conduct of lawyers who represent or are employed by organizations, including government organizations.  Post-Watergate, the famed Kutak Commission recommended “that lawyers representing an organization be allowed to disclose confidential information concerning officers or employees who are violating the law.”

I could go on and on about Watergate and the resulting impact on legal ethics and professional responsibility.  But who wants that on a Friday afternoon?  Nobody, that’s who.

So, I’ll leave you with two things.

First, to learn more about the legal ethics fallout from Watergate, fire up your own Google Machine.

Second, given Watergate’s direct impact on the narrow area of law that I practice, I’d violate my duties of competence and diligence by NOT posting today.

Onto the quiz!

Rules

  •  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 consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

 When I’m presenting on the 7 Cs of Legal Ethics, which C am I discussing when I make this statement?

  • “Generally, the duty is more relaxed when negotiating with opposing counsel than it is when making statements of material fact or law to a tribunal.”

 Question 2

Fill in the blank. I understand that, arguably, each is correct.  However, I’m looking for the exact word used in the rule.

Lawyer called me with an inquiry. I listened, then replied “the rule only prohibits you from representing the client at trial if you are a(n) __________ witness.

  • A.  Fact.
  • B.  Expert.
  • C.  Necessary.
  • D.  Adverse

Question 3

Each of these four phrases in the same rule.  However, the rule treats one differently than the other tree.  Which phrase does the rule treat differently?

  • A.  The representation will result in violation of the rules of professional conduct.
  • B.  The lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.
  • C.  The lawyer is discharged.
  • D.  The representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client.

Question 4

 At several seminars this month, I’ve resolved to review Vermont’s rule on “lateral transfers.”  In my opinion, the rule unnecessarily inhibits mobility and disproportionately impacts our newer lawyers.  What’s the rule on lateral transfers relate to?

  • A.  Trust account management.
  • B.  Conflicts that arise from someone a lawyer knew/worked with before becoming a lawyer.
  • C.  Conflicts that arise when a lawyer moves from one private firm to another.
  • D.  Conflicts that arise when someone other than the client pays for a lawyer to represent the client.

Question 5

On June 17, 1994, a lawyer who would later become one of the founders of Legal Zoom held a press conference.  The lawyer opened the press conference with a statement intended for the lawyer’s client, saying to the client:

  • “Wherever you are, for the sake of your family, for the sake of your children, please surrender immediately.”

Then, the lawyer recounted the events of a day that had begun with the lawyer intending to facilitate the client’s surrender to law enforcement, only to have the client and a friend disappear while the lawyer, the client, and others were waiting for police to arrive.

Finally, the lawyer asked another lawyer, who was also a close friend of the client, to read a letter from the client.  Many perceived it to be a suicide letter. In the end, it was not.  While you might not remember the lawyer who read the letter, you’re most certainly aware of many of the members of the lawyer’s family.  In the 21st century, you can’t help but not to be aware of them.

In 2016’s Emmy Award winning series about the client’s case and eventual trial, the lawyer who began the press conference, the lawyer who read the note, and the client were played by John Travolta, David Schwimmer, and Cuba Gooding, Jr.

Name the lawyers and the client.

The importance of setting reasonable client expectations & providing clients with candid legal advice.

It’s CLE season.  I’ve presented a few this week and am scheduled for a bunch more between now and the reporting deadline. No matter the practice area of the target audience, nearly every presentation will include two points:

  1. A lawyer should communicate reasonable expectations to clients at the outset of the representation.
  2. A lawyer has a professional obligation to provide clients with candid legal advice, no matter how unpalatable.

legal ethics

With respect to the former, I’ve long sensed that the bar’s perception is that most disciplinary complaints are rooted in a lawyer’s failure to communicate with a client.  That’s true, but not for the reason many seem to think.  That is, in my experience, not many complaints allege “my lawyer doesn’t respond to my calls or emails.” It’s far more common for a complaint to allege that the representation did not turn out as the client expected and it’s the lawyer’s fault that it didn’t. To me, that’s a communication issue.

I know what you’re wondering: “Mike – if things don’t go as the client had hoped how is that a communication issue?”

My response: “Good question. If you failed to disabuse the client of unreasonable expectations, that’s a communication issue.”

Here’s what I mean.

Imagine that Lawyer agrees to represent Client in a claim for damages.  From the outset, Lawyer is aware that Client expects to receive $100,000.  Lawyer knows that, at best, the claim is worth $25,000.  However, Lawyer doesn’t disabuse Client of their unreasonable expectation. Then, a few months after Lawyer somehow manages to resolve the matter for $50,000, Client files a disciplinary complaint alleging that Lawyer botched the case and cost Client $50,000.

The scenario spans practice areas.

For instance, the divorce client who unreasonably believes they’re going to receive all the marital assets.  Or the criminal defendant who unreasonably believes that they’ll never set foot in jail.  No matter how much their lawyer gets them in a settlement, or how little time their lawyer convinces the sentencing judge to impose, the client is not going to be happy.  All because the lawyer failed to disabuse the client of unreasonable expectations.

Now, are these disciplinary violations?  Maybe not.  Nevertheless, it’s not fun to have a complaint filed or to be sued.  Nor is it good for business to have former clients telling everyone how poorly you did. That’s why I stress the importance of setting reasonable expectations at the outset of the representation, including expectations as to:

  • the result;
  • how long it will take;
  • how much it will cost; and,
  • how often the lawyer will communicate with the client.

Which brings me to point 2: candid legal advice.

Often, setting and managing client expectations necessarily includes delivering advice that the client won’t be happy to receive.  A lawyer’s job is not to tell the client what the client wants to hear.   Rather, a lawyer’s duty is to provide the client with candid legal advice.

Rule 2.1 of the Vermont Rules of Professional Conduct is entitled “Advisor.”  The first line is:

  • “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.”

Comment [1] falls under the heading “Scope of Advice.” It makes my point better than I ever have:

  • “A client is entitled to straightforward advice representing the lawyer’s honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront.  In presenting advice, a lawyer endeavors to sustain a client’s morale and may put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid legal advice by the prospect that the advice will be unpalatable to the client.”

Also, as a reader commented in response to a similar blog that I posted last year, the failure to provide candid legal advice implicates more than Rule 2.1.  It’s an integral part of the duty of competence. Further, one might argue that sugarcoating advice is misleading.  Finally, if the reason you’re not delivering bad news is because of the potential blowback to the messenger, well, that might be a conflict.

In closing, consider what you’d expect from your auto mechanic, doctor, dentist, financial advisor, or anyone else to whom you turn for advice.  Or from your lawyer if you ever need to hire one!  You’d expect candid advice that corrects any unreasonable expectations that you might have.  The advice might not be what you hoped for or wanted, but it’s the advice that you’re entitled to receive and that you require to make informed decisions about the matter at hand.

Your clients are entitled to the same.

Related posts:

Monday Morning Honors #253

Happy Monday!  And happy it is (for me) with the week’s forecast!

Many thanks to all who participated in last week’s Well-Being Week in Law. On Wednesday I’ll post a recap that includes a list of those who got involved.  Remember:  there’s no need to limit well-being to a single week in May!  Let’s make it a habit in Vermont’s legal community!

Friday’s questions are here.  The answers follow today’s Honor Roll.  Suffice to say that my Kentucky Derby picks turned out to be undeserving of honor.

First Nine Week Highest Honors and Honor Roll for NCES | Elementary

ANSWERS

Question 1

 At CLEs and in response to ethics inquiries, I often state “it’s broader than the privilege.”  When I do, which of the 7 Cs of Legal Ethics am I referring to?  The duty of _____________.

CONFIDENTIALITY.  Rule 1.6 – Confidentiality of Information, Cmt. [3]

Question 2

Which appears in a different rule than the others?

  • A.  explain a matter to the extent reasonably necessary for the client to make informed decisions about the representation.
  • B.  is likely to be a necessary witness.
  • C,  unless the testimony relates to an uncontested issue or to the nature and value of legal services rendered in the case.
  • D.  unless disqualification of the lawyer would work substantial hardship on the client.

Option A is language from Rule 1.4 and is an aspect of a lawyer’s obligation to communicate with clients. Tip: in my opinion, clients can’t make reasonably informed decisions about the representation absent reasonable expectations about the representation and unless their lawyer provides them with candid legal advice.

 Options B, C, D appear in Rule 3.7 – Lawyer as Witness

 Question 3

 When using the following phrases at a CLE, what am I discussing?

  • prohibited when representing the defendant in a criminal case.
  • prohibited in exchange for securing a divorce;
  • prohibited if based on the amount of spousal maintenance, spousal support, or property settlement in lieu thereof.
  • allowed in post-judgment divorce actions that involve collecting past due spousal maintenance.

A contingent fee. See, Rule 1.5 – Fees

Question 4

In which of the situations below are the rules governing conflicts of interest stricter than the others?  When a lawyer:

  • A.  in private practice represents clients at a pro bono clinic sponsored by a court or non-profit.
  • B.  moves from private practice to government work.
  • C.  moves from government work to private practice.
  • D. transfers from one private firm to another private firm.

In A, B, and C, Vermont’s rules allow for screening even if the affected lawyer participated personally and substantially in a matter at a prior job.  That is NOT the case when a lawyer moves from one private firm to another.  If the lawyer’s new firm represents a client whose interests are materially adverse to those of a client represented by the lawyer’s old firm in the same matter, the new firm is disqualified if the lawyer participated personally and substantially in the matter while at the old firm.  See, Rule 1.10 – Imputation of Conflicts of Interest – General Rule and this blog post.

 Question 5

 I’m not positive how widespread the news is, but some of you might have learned that a draft Supreme Court opinion was leaked this week.  Discussing it during our bread debrief, the First Brother and I agreed that we were less surprised by the leak than we were that it hadn’t happened before.  Well, as it turns out, there has been at least one other instance in which a well-known Supreme Court opinion was leaked to the press prior to being released. Indeed, it involved not one, but two leaks.

First, shortly after the arguments, the Washington Post ran a story about the Court’s internal deliberations on the case. The story included a leaked memo that one justice had written to the others.  Seven months later, and a few hours before the Court announced its opinion, Time Magazine published the opinion and the details of the vote. The incident resulted in the then Chief Justice imposing a so-called “20 second rule,” a rule that a law clerk caught communicating with the media would be fired within 20 seconds.

What was the name of the case in which the opinion was leaked?

Bonus: who was the Chief Justice who imposed the 20-second rule?

The case is Roe v. Wade.  At the time, Warren Burger was the Chief Justice.  Among others, NPR and the Washington Post have coverage.

 

Five for Friday #253: Emotional Well-Being & The Kentucky Derby

Welcome to Friday and the 253rd #fiveforfriday legal ethics quiz!

It’s Well-Being Week in Law and today’s theme is “Emotional Well-Being: Feel Well.”  The organizers challenge us to learn to identify and manage our emotions to use them in a positive manner. In this video, and using a construct I used when coaching, I discuss emotional intelligence and:

  • accepting that we’ll experience negative emotions;
  • remembering W.I.N. when responding to those negative emotions;
  • winning our 3-feet of influence;
  • striving to be one of the 4 positives that others might need for their own well-being; and,
  • my Kentucky Derby picks.

The video references my blog post W.I.N. your 3-feet of influence. Finally, there’s still time to participate in Well-Being Week in Law.  For ideas, check out the participation guide. And, if interested, email me about your participation and I’ll include you in tomorrow’s blog post summarizing Vermont’s participation in the week’s well-being activities.

Have a great weekend!

Onto the quiz!

Kentucky Derby - Home | Facebook

Rules

  •  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 consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

 

Question 1

 At CLEs and in response to ethics inquiries, I often state “it’s broader than the privilege.”  When I do, which of the 7 Cs of Legal Ethics am I referring to?  The duty of _____________.

 Question 2

 Which appears in a different rule than the others?

  • A.  explain a matter to the extent reasonably necessary for the client to make informed decisions about the representation.
  • B.  is likely to be a necessary witness.
  • C. unless the testimony relates to an uncontested issue or to the nature and value of legal services rendered in the case.
  • D.  unless disqualification of the lawyer would work substantial hardship on the client.

Question 3

 When using the following phrases at a CLE, what am I discussing?

  • prohibited when representing the defendant in a criminal case.
  • prohibited in exchange for securing a divorce;
  • prohibited if based on the amount of spousal maintenance, spousal support, or property settlement in lieu thereof.
  • allowed in post-judgment divorce actions that involve collecting past due spousal maintenance.

Question 4

 In which of the situations below are the rules governing conflicts of interest stricter than the others?  When a lawyer:

  • A.  in private practice represents clients at a pro bono clinic sponsored by a court or non-profit.
  • B.  moves from private practice to government work.
  • C.  moves from government work to private practice.
  • D. transfers from one private firm to another private firm.

 Question 5

 I’m not positive how widespread the news is, but some of you might have learned that a draft Supreme Court opinion was leaked this week.  Discussing it during our bread debrief, the First Brother and I agreed that we were less surprised by the leak than we were that it hadn’t happened before.  Well, as it turns out, there has been at least one other instance in which a well-known Supreme Court opinion was leaked to the press prior to being released. Indeed, it involved not one, but two leaks.

First, shortly after the arguments, the Washington Post ran a story about the Court’s internal deliberations on the case. The story included a leaked memo that one justice had written to the others.  Seven months later, and a few hours before the Court announced its opinion, Time Magazine published the opinion and the details of the vote. The incident resulted in the then Chief Justice imposing a so-called “20 second rule,” a rule that a law clerk caught communicating with the media would be fired within 20 seconds.

What was the name of the case in which the opinion was leaked?

Bonus: who was the Chief Justice who imposed the 20-second rule?

Monday Morning Honors #252

Happy Monday!

Many thanks to the Young Lawyers Division of the Vermont Bar Association for putting on another fantastic event in Montreal this weekend. It was great to see so many people in-person. And how about that weather?!?!  Count me as a fan of an April/May Thaw!

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

Honor Roll

  • Karen Allen, Karen Allen Law
  • Evan Barquist, Montroll Oettinger Barquist
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, University of Illinois at Chicago Law
  • Corinne Deering, Paul Frank + Collins
  • Benjamin Gould, Paul Frank + Collins
  • Robert Grundstein
  • Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
  • Jeanne Kennedy, JB Kennedy Associates, Mother of the Blogger
  • John T. Leddy, McNeil Leddy & Sheahan
  • Tom Little, Little & Cicchetti
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
  • Herb Ogden, Esq.
  • Margaret Olnek, Divorce Coach, Assistant Professor, Vermont Law School
  • Jonathan Teller-Elsberg, Sheehey Furlong & Behm
  • Jason Warfield, J.D.
  • Thomas Wilkson, Jr., Cozen & O’Connor

ANSWERS

Question 1

Lawyer works at Firm. If Lawyer has a conflict of interest that prohibits Lawyer from representing Client, which type of conflict is least likely to be imputed to the other attorneys in Lawyer’s firm? A conflict that arises from:

  • A.  Lawyer’s representation of a former client.
  • B.  Lawyer’s current representation of another client.
  • C.  a personal interest of Lawyer’s. V.R.Pr.C. 1.10(a)
  • D.  trick question. In VT, all conflicts are imputed to others in the same firm.

Question 2

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

  • A. Yes, but only if the payor is related to the client.
  • B. Yes, but only if the payor is the client’s insurance company or employer.
  • C.  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).
  • D.  A & B.

Question 3

Under Vermont’s rules, if a lawyer reasonably believes that a client intends to commit an act that will result in the death of or substantial bodily harm to the client, the lawyer ____:

  • A.  must disclose client’s intention.
  • B.  must not disclose the client’s intention.
  • C.  may disclose the client’s intention. V.R.Pr.C. 1.6(c); See, Cmt. [10].
  • D.  It depends on how old the client is.

Question 4

Lawyer called me with an inquiry related to a potential conflict between a prospective client and a former client. We discussed the distinction between the lawyer’s general knowledge of the former client’s policies and practices, versus the lawyer’s knowledge of specific facts gained during the prior representation that are relevant to the new matter.

As such, it’s most likely that Lawyer’s former client is _________:

  • A.  a minor.
  • B.  an organization. V.R.Pr.C. 1.9, Cmt. [3].
  • C.  deceased.
  • D.  represented by a law firm that once employed Lawyer.

Question 5

The Thaw is on my mind.

With “most” defined as “all,” most of my knowledge of the British Commonwealth’s legal system comes from tv and movies. Last week, I binged Anatomy of a Scandal. Set in England, here are the lawyers who appeared in a criminal trial:

Englih Lawyer

A few years ago, I loved the Australian show Rake. Here’s the star:

Rake

So, if I bump into a Canadian lawyer in Montreal, I might ask the lawyer if they have a peruke. It’s altogether possible that the lawyer will have no idea what “peruke” means. If so, what’s the word I’ll use instead? The more common term for a “peruke?”

Negative infinity points for any smart aleck comments that I should get my own a peruke.

A wig that English barristers wear in court.  Perukes are no longer worn in court in Canada.

Wellness Wednesday: Mentoring

It’s been a bit since my last Wellness Wednesday post.  And, since I already blogged once today, I’m reluctant to do so again.  However, in that this morning’s was about trust accounting, my personal well-being requires a new post to cleanse my palate of my least favorite topic.

So, let’s consider mentoring as an aspect of well-being.

wellness

I’ve long thought that mentoring provides an opportunity to improve well-being. Not only for the mentee and the obvious benefits of wise guidance, but for the mentor.  In fact, a quick search reveals that I’ve posted several blogs in which I urged lawyers to consider serving as mentors.

The first was Resolve to be a Mentor, a post in which I suggested that mentoring can be traced back to the earliest recorded guidelines of attorney conduct.  Next, here and here, I used the Wellness Wednesday forum to encourage lawyers to serve as mentors. The former referenced my tribute to Joan Wing.  Very few, if any, have done more to promote the wellness and well-being of the Vermont legal profession than Joan, with her various efforts including serving as a mentor to many lawyers who still practice today.  This blogger included.

My prior posts focused on the benefits to the mentee. I’ve never been able to articulate my feeling that, at some level, helping others to find their way benefits the helper as well.  Then, today, I saw the ABA Journal’s Mentorship is not all about the menteeIt’s a great post in which Katherine Gustafson reminds us that, yes, while ‘the benefits of being mentored have been extolled in articles everywhere,” when it comes to mentoring “before you reject the idea, consider the benefits that come with such a role.” Among those benefits, wellness.

Referring to the “intrinsic rewards” associated with mentoring, Gustafson notes:

“Let’s face it, the practice of law is difficult, often frustrating, work. Even those of us who love our jobs sometimes feel burned out and unsatisfied. This burnout can affect our physical and mental health as well as our work productivity. We long for something in our daily work that satisfies our soul. Mentorship can be that magic ticket.

We have long known that helping others makes us feel good, but research by the University of Wisconsin—Madison’s La Follette School of Public Affairs proves it. The research concluded that helping others makes us happier. When you do something good for someone else, the pleasure centers in your brain light up and endorphins are released that give you a sensation referred to as a ‘helper’s high.’ So, taking a little bit of time out of our daily life to help a new attorney find their way in the profession can counteract some stress and negativity that naturally accompanies law practice.”

I agree!

So today I’m here to share two mentoring opportunities.

Last month, the Vermont Bar Association announced the Vermont Mentor Advice Program (VMAP).  VMAP aims to pair “experienced Vermont lawyers with new lawyers practicing in Vermont and with lawyers newly-located in Vermont.” The VBA hopes that VMAP “will be a helpful way to welcome new lawyers practicing in Vermont to the Vermont legal community, and for experienced lawyers to be able to share their knowledge and experience with new Vermont lawyers.”  For more info, including answers to frequently asked questions and an application form, please go here.

In addition, the Vermont Judiciary administers a separate program.  The Rules of Admission to the Bar of the Vermont Supreme Court require newly admitted lawyers to complete a mentorship.  More information is available here.  To be added to the list of those willing to serve mentors in the admission program, please email Licensing Counsel Andy Strauss.

Note: the VBA program is NOT for mentees seeking to satisfy the admission requirement.

If I know Joan, she wouldn’t recommend one program over the other.  Rather, I expect that she’d suggest – as only Joan could “suggest” things – that you serve in BOTH.

For now, please consider one.

Here’s to being like Joan and improving our own well-being while helping others.

Previous Wellness Wednesday Posts

Monday Answers: #244

Happy February Eve!

From the responses to Friday’s post, I’m comfortable concluding that not many  readers will miss January.  Shout out to the firm that celebrated with Tropical Friday!

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

Honor Roll

  • Karen Allen, Karen Allen Law
  • Evan Barquist, Montroll Oettinger & Barquist
  • Penny Benelli, Dakin & Benelli
  • Amy Butler, Law Office of Amy Butler
  • Andrew Delaney, Martin Delaney & Ricci
  • Bob Grundstein
  • Glenn Jarrett, Jarrett & Luitjens
  • Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
  • John LeddyMcNeil, Leddy & Sheahan
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeffrey Messina, Messina Law
  • Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
  • Herb Ogden
  • Keith Roberts, Darby Kolter & Roberts
  • Jonathan Teller-Elsberg, Sheehey Furlong & Behm
  • The Honorable John Valente, Vermont Superior Judge
  • Thomas Wilkinson, Jr., Cozen & O’Connor
  • Jason Warfield, J.D.
  • Jack Welch, Esq.

answers

Question 1

Michael contacts Attorney for representation.  Michael’s matter is substantially related to a matter in which Attorney formerly represented Patrick.

By rule, which is most relevant to Attorney’s consideration of whether to represent Michael?

  • A.  whether Michael’s interests are materially adverse to Patrick’s.  See, V.R.Pr.C. 1.9(a).
  • B..whether Attorney remembers anything about Patrick’s matter.
  • C..whether Patrick’s matter concluded more than 7 years ago.
  • D..the nature of Michael’s matter: litigation or transactional.

 Question 2

 Here’s the first clause of V.R.Pr.C. 4.4(a):

“In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person . . .”

I’ve long argued that as the presence of one of the 7C of Legal Ethics wanes, the well-being of the profession deteriorates.  Which one?  That is, which of the 7Cs, when taken to the opposite extreme, crosses a line and violates the first clause in Rule 4.4(a)?

CIVILITY   (If scores mattered, I’d accept compassion, caring, courtesy . . . etc.)

A reader asked for a reminder.  The 7 Cs are:

  • 5 that are rules:  Competence, Communication, Confidentiality, Conflicts, Candor.
  • 2 others:  Commingling, Civility

Question 3

Math!

X = the number of annual pro bono hours suggested by the rule.

Y = the number of years that a rule requires lawyers to maintain trust account records following the termination of the representation.

What is X * Y?

  • A.  420
  • B.  360
  • C.  350
  • D.  300

 X = 50.  V.R.Pr.C. 6.1

Y = 6.  V.R.Pr.C. 1.15(a)(1).

Question 4

Lawyer called me with an inquiry.  My response included “It seems like there are grounds to do so.  But if you do, make sure to avoid noisy ______________.”

Given my answer, it’s most likely that Lawyer called to discuss:

  • A.  withdrawing from representing a client.  See; Stop Making Noise
  • B.  reporting opposing counsel to disciplinary counsel.
  • C.  a trust account scam
  • D.  throwing a Super Bowl party.

Question 5

Earlier this week I posted Espionage, Bribery, and Reinstatement to the Practice of Law. It refers to the story of a lawyer who, last month, sought reinstatement to the D.C. Bar.  The lawyer was disbarred in the 90s after being convicted of espionage.

In 1950, and in a criminal trial that captured the nation’s attention, a lawyer was charged with perjury. The charge was based on an allegation that the lawyer had lied to the House Committee on Un-American Activities by stating that he had not been a communist spy in the 1930s.  Because the statute of limitations had run, the lawyer was not charged with espionage

On one side of the trial, the government’s evidence included the so-called “Pumpkin Papers,” papers that an admitted former spy, who’d hidden them in a pumpkin for years, testified proved that he and the lawyer had committed espionage for the Soviets.

On the other, two sitting justices of the United States Supreme Court testified as character witnesses for the lawyer.

The lawyer was convicted.  As a result, the lawyer was disbarred in Massachusetts.  Then, in 1975, the Supreme Judicial Court of Massachusetts reinstated the lawyer, making him the first Massachusetts lawyer ever to be reinstated after having been disbarred.

Name the lawyer.  ALGER HISS

Bonus: name the member of the House Committee on Un-American Activities who, years later, was disbarred himself.   RICHARD NIXON

 The Alger Hiss trial fascinates me.  History has a good primer here.

Alger_Hiss_1950-1-e1579553354483

Five for Friday #243

Welcome to Friday and the 243rd #fiveforfriday legal ethics quiz!

Wait . . . the Friday post is the only connection I have with many of you, and this is the first of 2022.  

So, should I have opened with “Happy New Year?” 

If so, I apologize.  I never know where the line is between a good-natured greeting and “hey weirdo, it’s not a new year anymore.”  Where’s the cutoff?  When is past time to open each conversation with New Year’s wishes?  Readers should feel free to weigh-in.  

Next, come Monday, I hope to present the answers in a new format. It’s either going to be by video or podcast.  I think this will provide an opportunity to drill deeper into the issues that the questions are intended to highlight.  Further, I’m going to include the First Brother as my guest.  He’s not a lawyer, but he’s a potential consumer of legal services.  And that’s the point.  There’s value in the non-lawyer perspective on rules that are intended to protect clients.

Finally, I should make a half-hearted effort to honor tradition and attempt to tie this introduction to the quiz number.

With 243 in mind, I’m struck by the fact that, but for Omicron, many of us would about now be departing for Montreal and the YLD Thaw. There’s a lot about the event that I will miss, including the epic CLE that Andrew Manitsky and I were scheduled to present, the camaraderie that’s always part of the weekend, and the VBA’s annual Friday-night takeover of Hurley’s.

I will not miss high temperatures of 2 with wind chills plummeting towards 43 below.

Onto the quiz!

the-quiz

Rules

  •  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 consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

 Imagine a CLE at which I address the distinction between “public record” and “generally known.”

Which 2 of the 7 Cs of Legal Ethics am I most likely to mention?

  • A.  Conflicts & Communication.
  • B   Conflicts & Confidentiality.
  • C.  Confidentiality & Commingling.
  • D.  Confidentiality & Candor.

Question 2

 Office employs Paralegal.  In a new matter, Paralegal has a conflict that would prohibit Paralegal from accepting the representation if Paralegal were a lawyer.  Which is most accurate?

  • A.  Paralegal’s conflict is imputed to all lawyers in Office and Office must decline the representation.
  • B.  Paralegal’s conflict is imputed, but only to any lawyer at Office who regularly supervises Paralegal.
  • C.  A comment to one of the rules indicates that while Paralegal’s conflict is not imputed to any lawyer at Office, Paralegal should be screened from involvement in the new matter.
  • D.  Fake question. In Vermont, conflicts are not imputed from one lawyer to others in the same office, and they certainly aren’t imputed from non-lawyers to lawyers.

 Question 3

 Lawyer referred Client to Attorney.  Lawyer and Attorney do not work in the same firm.  Can Attorney share part of the fee with Lawyer?

  • A. No.
  • B.  Yes, if the fee division is in proportion to the work done by each, or, each assumes joint responsibility for the representation.
  • C.  Yes, if Client agrees, the fee sharing agreement is confirmed in writing, and the total fee is reasonable.
  • D.  B & C.

Question 4

 Client contacts Lawyer. Client explains that they are represented by Attorney in a matter.  Client wants a second opinion.   Lawyer is not otherwise involved in the matter.

True or False?

Vermont’s rule prohibits Lawyer from communicating with Client about the matter without Attorney’s consent.

Question 5

A famous jurist made headlines this week for donating $5 million to her law school to fund scholarships – full tuition and books – for 10 women.  In addition, upon completing their first year of law school, each scholarship recipient will receive an offer of a summer fellowship with the jurist.

The jurist’s granddaughter, Sarah Rose, is currently a 3L at the same law school.  Sarah also works as a law clerk for her grandmother on their latest streaming venture.

Name the jurist.

Bonus – name the law school.

Monday Morning Answers #240

Attention!  New blog feature!  I recorded this video in which I go over the answers to Friday’s quiz in more detail than I do in the post.

Anyhow, good morning and welcome to the week!  While I’m a fan of a long December, musically too, I worry that the remainder will blow by before I know it. Or, worse, January will feel even longer.

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

Honor Roll

  • Karen Allen, Karen Allen Law
  • Barquist, Montroll Oettinger & Barquist
  • Alberto Bernabe, Professor of Law, University of Illinois Chicago
  • Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labor
  • Andrew Delaney, Martin Delaney & Ricci
  • Benjamin Gould, Paul Frank + Collins
  • Robert Grundstein
  • Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
  • Deb Kirchwey, Law Office of Deborah Kirchwey
  • Aileen Lachs, Esq.
  • Kevin Lumpkin, Sheehey, Furlong & Behm
  • Pam Loginsky, Pierce County (WA) State’s Attorney’s Office
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeffrey Messina, Messina Law
  • Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
  • Herb Ogden, Esq.
  • Dan Richardson, Burlington City Attorney
  • Jonathan Teller-Elsberg, Sheehey Furlong & Behm
  • The Honorable John Valente, Vermont Superior Judge
  • Jason Warfield, J.D.
  • Thomas Wilkinson, Cozen O’Connor
  • Zachary York, Paralegal, Sheehey Furlong & Behm

Answers

Question 1

I often blog and talk about the 7 Cs of Legal Ethics

This “C” does not appear by word in the Rules of Professional Conduct. That said, and as the Vermont Supreme Court has indicated, it’s a serious violation of the trust accounting rules.

COMMINGLING.  One reader responded “conversion.”  100% correct.  So, let it know be known that “commingling” and “conversion” share a seat on the ship that sails the 7Cs of legal ethics.

Question 2

 Fill in the blank.

 Every now and then I’ll receive an inquiry in which a lawyer asks whether there are any pitfalls in allowing someone other than the client to _____________.  Referring to the three-prongs of the applicable rule, I respond:

  • Make sure you get your client’s informed consent.
  • Don’t let the person interfere with your independent professional judgment or your attorney-client relationship.
  • Don’t disclose confidential information to the person without your client’s consent.

Given my response, it’s most likely that lawyer asked whether there are any pitfalls in allowing someone other than the client to _______________:

  • A.  Serve as a go-between between the lawyer and the client.
  • B.  Make decisions that ordinarily are reserved for the client.
  • C.  Sit in for the client at a mediation that is likely to cause the client undue stress.
  • D.  Pay the lawyer to represent the client.

 V.R.Pr.C. 1.8(f).

Question 3

 Fill in the blank.  Again.  This time without a menu of choices.

 A comment to one of the rules includes the following statements.  The same word correctly fills in each blank.

  • “[An] action is not ____________ even though the lawyer believes that the client’s position ultimately will not prevail. The action is ___________, however, if the lawyer is unable to make a good faith argument on the merits of the action.”

What’s the word?

FRIVOLOUS.  See, V.R.Pr.C. 3.1, Comment [2].

Question 4

 A version of “fill in the blank.”

During a CLE, I say something like this:

  • “Comment [3] to the rule addresses whether matters are ‘substantially related.’ It includes a sentence that makes clear that we will not require the _____________ to disclose confidential information to keep the lawyer from using it in the subsequent matter.”

I was discussing the rule that governs:

  • A.  Conflicts between current clients.
  • B.  A lawyer’s duties to former clients.
  • C.  Candor to a Tribunal.
  • D.  A rule that is not listed in choices A, B, or C.

V.R.Pr.C. 1.9(a).  The rule applies even if the lawyer does not remember anything from the prior representation.  That is, if the new matter is substantially related to the old, the former client will not be put to the Hobson’s Choice of disclosing confidences to protect them.

Question 5

 In the introduction, I alluded to stress that can come with the holiday season. 

Last month, a judge in Georgia made national news after tweeting a mock order banning a popular holiday item from the judge’s county. I don’t know whether the attention caused the judge any stress.

Anyhow, the mock order referred to the stress and anxiety that can come to parents who forget to move the item, as well as to children who touch the item and thereby deprive it of its holiday magic.

Name the item.

ELF ON THE SHELF.

 Among others, the ABA Journal, the Atlanta Journal Constitution, and Above The Law reported the story.  The mock order is here

Elf