There are reasons to consider not copying a client on an email to opposing counsel.

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

 

Tech competence: don’t take the wrong message from this NJ decision declining to sanction a lawyer.

When I created this blog, many early posts focused on technology.  Long-time readers probably remember the mantra “competence includes tech competence.”  Key points included:

  1. At some point, a basic understanding of technology that impacts client matters is required.
  2. Technology is always evolving.
  3. Even if you don’t know everything about a new technology, sometimes it helps to analogize to a “paper” or “real life” situation.

Weaved into the messaging was a reminder that “but I don’t even know how that stuff works!” likely won’t excuse a violation of the Rules of Professional Conduct.  Which is why today’s story so interests me.

As reported by the ABA Journal, the New Jersey Supreme Court recently dismissed disciplinary charges against a lawyer whose paralegal had obtained information directly from a represented adverse party via Facebook.  Law360 and Law.com also reported the opinion.

First, I’m going to summarize what happened. Then, I’m going to share several of the New Jersey Supreme Court’s statements with which I agree, and one that gives me pause.

What happened?

Flashback to 2007.  Yes, 2007.  Plaintiff, a police officer, was struck by a police car while exercising in the police station’s parking lot.  Plaintiff sued the police department.  Plaintiff claimed significant injuries.

Attorney represented the Department. In 2008, Attorney instructed Paralegal to “conduct internet research” into Plaintiff.  Paralegal found Plaintiff’s Facebook page.

With respect to what happened next, here’s what’s not in dispute:

At a time when Attorney knew that Plaintiff was represented, Paralegal became Facebook friends with Plaintiff.  Paralegal found a video showing Plaintiff wrestling.  Paralegal downloaded the video and gave it to Attorney.  Attorney believed that the video was made after Plaintiff was struck by the police car.  So, another lawyer in Plaintiff’s firm asked questions about the video during Plaintiff’s deposition.  Afterwards, Attorney forwarded the video and other postings to Plaintiff’s Counsel.  Never having consented to direct communication with Plaintiff, Counsel filed an ethics complaint against Attorney.

Not all was undisputed.  At a disciplinary hearing that, for reasons not important here, did not happen until April 2018, different versions of what else happened next emerged.

Paralegal’s version:  for a while, Plaintiff’s Facebook account was public, Paralegal monitored the account, and reported publicly available information to Attorney.  The account became private. Paralegal told Attorney that the only way to continue to monitor the account was to become Facebook friends with Plaintiff.  Attorney did not seem to understand Facebook privacy settings or friend requests and instructed Paralegal to send a message that would grant access to Plaintiff’s postings.  Paralegal sent a Facebook message to Plaintiff stating that Plaintiff looked like Paralegal’s favorite hockey player.  Plaintiff responded with “flirtatious messages” and a friend request.  Paralegal accepted the request and resumed monitoring the account.

Plaintiff’s version:  the account was always private.  Paralegal sent a friend request that Plaintiff accepted.  Plaintiff messaged Paralegal, asking who Plaintiff was.  Paralegal replied that Plaintiff looked like Paralegal’s favorite hockey player.  Nothing in Paralegal’s profile or reply indicated that Paralegal worked with Attorney.

Attorney: I told Paralegal to conduct internet research.  Back then, I didn’t know what it meant to be Facebook friends or that Facebook offered various privacy settings.  I did not tell Paralegal to friend Plaintiff.   I told Plaintiff to monitor any information about the lawsuit that Plaintiff posted to the internet. I believed that information posted to Facebook was available to all and that the duties of competence and diligence that I owed to my client required me to review such information.

Over many years, the case worked its way through New Jersey’s disciplinary system.  Eventually, at the trial level, a Special Master concluded that Attorney did not violate the Rules of Professional Conduct.

On review, the Disciplinary Review Board (DRB) concluded otherwise, determining that Attorney violated (1) the rule that prohibits communication with represented persons; (2) the rule that prohibits dishonesty (Paralegal’s failure to identify Paralegal’s role was a misrepresentation by omission); and (3) the rule that required Attorney to ensure that Paralegal’s conduct conformed with Attorney’s professional obligations.

In the end, the New Jersey Supreme Court dismissed the charges, concluding that they had not been proven by clear and convincing evidence. To a large degree, the court’s opinion recognizes that the ultimate decision turns on witness credibility and that the Special Master – not the DRB or the court – was in the best position to assess credibility having presided over the evidentiary hearing.

Still, several of the court’s statements bear noting.  Because while the court declined to sanction Attorney, it also made clear our duties with respect to tech competence.

For instance,

  • “[Attorney] may have had a good faith misunderstanding about the nature of Facebook in 2008, as the special master found; but there should be no lack of clarity today about the professional strictures guiding attorneys in the use of Facebook and other similar social media platforms.”

The court went on:

  • “When the communication is ethically proscribed, it makes no difference in what medium the message is communicated. The same rule applies to communications in person or by letter, email, or telephone, or through social media, such as Facebook.”

Finally,

  • “Lawyers must educate themselves about the commonly used forms of social media to avoid the scenario that arose in this case. The defense of ignorance will not be a safe haven.”

I don’t disagree with any of the quoted statements.  I’m especially a fan of refusing to find port in the storm for the “the defense of ignorance.”  Yet, it’s another statement that gives me pause.

Essentially, a single statement underpins the court’s opinion:

  • “What attorneys know or reasonably should know about Facebook and other social media today is not a standard that we can impute to [Attorney] in 2008 when Facebook was in its infancy.”

I get it.  Really, I do.  But, for practicing lawyers and their nonlawyer assistants, I urge caution.

On tech competence, people in my practice area have been clear: we are long past the day when we will provide “hard and fast” pronouncements on each new technological development.  Rather, lawyers are reminded that technology will continue to develop and, as it does, lawyers remain under a duty to ensure that their use of technology complies with the Rules of Professional Conduct.[i]

Whether 2030, 2025, or sooner, there will be a new way to communicate that none of us has ever imagined.  In my view, the New Jersey opinion should not be viewed as suggesting that, with brand new technology, lawyers can use first, ask questions later.  That is, with respect to the conclusion that a technology’s “infancy” may excuse a violation, I’d be very careful in how I define “infancy.” Indeed, as I read the NJ opinion, both Paralegal and Plaintiff were well-versed in how Facebook worked. It was only Attorney who was not.

Also, for two reasons, don’t forget my point about analogizing to “paper” or “real life.”

First, when the day comes that an assistant asks you if you want to communicate with a represented person via the assistant’s Ansible, I hope your reaction isn’t “I wonder what Ansible is.”  Instead, I hope warning bells go off as you respond, “we can’t communicate with a represented person!!”[ii]

Second, I suppose an assistant might resort to Ansible without asking you first.  So, remember: if someone brings you information that seems too good to be true, it just might be.

Competence includes tech competence.  As always, be careful out there.

Social Media

[i] See, ABA Formal Opinion 477R

[ii] It’s okay if you clicked on the Wiki entry for Ansible before realizing that that you’d been asked to communicate with a represented person.  As an old coach, it’s best to make mistakes in practice, learn from them, and not repeat them in games.

Disciplinary Opinion from the Indiana Supreme Court provides helpful reminder on the scope of the “no contact” rule.

Earlier today I came across this opinion in which the Indiana Supreme Court reprimanded a lawyer who impermissibly communicated with a represented person.  I did so via this post on the Legal Profession Blog.  The factual scenario isn’t dissimilar from a common inquiry topic. So, I thought I’d share the opinion as a helpful reminder on the scope of Rule 4.2, the so-called “no contact rule.”

Ok, here’s the situation:[i]

“Respondent represented ‘Husband’ in ongoing post-dissolution litigation involving Husband’s marriage to ‘First Wife.’ In August 2018, a domestic dispute between Husband and ‘Second Wife’ led to criminal charges against Second Wife and Husband’s petition for marital dissolution from Second Wife. Respondent also represented Husband in this dissolution action.

“Counsel for First Wife issued notice of a deposition of Second Wife. Respondent knew Second Wife was represented by counsel in the dissolution case and in the criminal case; however, neither Respondent nor First Wife’s counsel informed either of Second Wife’s attorneys of the deposition. At the deposition Respondent and First Wife’s counsel elicited incriminating testimony from Second Wife and testimony about subjects relevant to the dissolution case, and Respondent later contacted the prosecutor and provided her with a copy of Second Wife’s deposition.”

Indiana’s rule is the same as Vermont’s.

“In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.”

A hearing officer concluded that the lawyer violated the rule. On appeal, the lawyer made three arguments.  Here’s my summary:

  • Lawyer: The deposition was noticed in the case involving First Wife.  Second Wife wasn’t a party to that case.
  • Court: The rule protects “persons” not “parties.”
  • Lawyer: The rule prohibits me from communicating with Second Wife in the matter in which she’s represented. It doesn’t prohibit me from communicating with her in the other matter.
  • Court: You were communicating with Second Wife in both matters. For one, the two matters so overlapped that the deposition was bound to cover both.  In fact, you admitted that you intended to use the deposition in both cases. Not only that, but the rule protects a represented person from uncounseled communications on the “subject of the representation . . . whether the representation involves the same proceeding, a different proceeding, multiple proceedings, or no proceeding at all.”
  • Lawyer: But I was required to protect my client’s interests at the deposition.  Therefore, I was “authorized by law” to communicate directly with Second Wife.
  • Court: Informing Second Wife’s lawyer that the deposition had been scheduled wouldn’t have kept you from doing your job.

I often ask lawyers who contact me with this scenario to tell me the reason they wish they could communicate with the represented person without going through counsel.  Once they hear themselves answer, they understand:[ii] their reason is the exact reason that we have the rule.

[i] For JEB: my parents went away on a week’s vacation!

[ii] Even those who are parents.

Fresh Prince

The No-Contact Rule

When I was a kid, Rick Springfield was all the rage. Singing Jessie’s Girl and playing Dr. Noah Drake on General Hospital will do that.

Image result for dr noah drake

Today, however,  I’m reminded of a Springfield song that I associate with the “couples skate only!” announcement at Skateland.  When it comes to professional responsibility, lawyers would be wise to treat “represented persons” as Springfield did “strangers.”

Don’t talk to them.

Rule 4.2 of the Vermont Rules of Professional Conduct is the “no-contact” rule.  When a lawyer is representing a client, the rule prohibits the lawyer from communicating “about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter.” There are two exceptions:

  1. the other lawyer consents to the communication; or
  2. the communication is authorized by law.

The rule’s purpose is made clear by Comment [1]:

  • “This rule contributes to the proper functioning of the legal system by protecting a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship, and the uncounseled disclosure of information relating to the representation.”

Earlier this month, the Virginia Supreme Court approved Legal Ethics Opinion 1890.  The opinion addresses more than a dozen scenarios that implicate the no-contact rule.

I’ve not blogged often on Rule 4.2.  Nevertheless, the Virginia opinion reminded me that it’s not uncommon for lawyers to ask about the rule’s reach.  Drawing on questions I’ve received at CLEs and from attorneys calling with inquiries, here are a few reminders & resources.

First, the rule applies to any person known to be represented in the matter.  That is, the rule is broader than “parties” and “cases.”  Not often, but I’ve had lawyers ask, “as long as I haven’t filed yet, I can talk to her directly, right?”  Wrong.

Next, here’s one that, in my experience, most lawyers know: “the rule applies even though the represented person initiates or consents to the communication.” Comment [3].  So, if most lawyers know it, why do I mention it?

Because e-mail has a remarkable ability to make all of us do things that we know we shouldn’t do.

I’ve little doubt that nearly every single lawyer reading this post would immediately hang-up if a represented party called.  Do the same with email – don’t reply!

Moving on, the question I receive most often on the no-contact rule involves former employees of a represented organization. Comment [7] is clear: “Consent of the organization’s lawyer is not required for communication with a former constituent.”  While issued before Rule 4.2 was adopted, VBA Advisory Opinion 96-7 reached the same conclusion.

Current employees, however, are a different story.  The rule prohibits direct communication with an employee of a represented organization:

  • who supervises, directs or regularly consults with the organization’s lawyer concerning the matter or has the authority to obligate the organization with respect to the matter; or,
  • whose act or omission in connection with the matter may be imputed to the organization for the purposes of civil liability.

For more on current employees, check out the VBA Advisory Opinion 06-05.  It draws heavily from Baisley v. Mississquoi Cemetery Association, an opinion in which the Vermont Supreme Court analyzed the relationship between the no-contact rule and V.R.E. 502, the evidentiary rule that establishes the lawyer-client privilege.

A few last tips:

  1. The “authorized by law” exception can cause confusion.  I don’t recall it ever being raised in the context of a disciplinary complaint.  However, in VBA Advisory Opinion 2000-6, the Professional Responsibility Committee concluded that “an attorney who represents a landlord may directly contact a tenant who is represented by an attorney solely for the purpose of the service of the statutory termination of tenancy notice.”
  2. The Virginia opinion advises that the no-contact rule does not prohibit a plaintiff/claimant’s lawyer from direct communication with an insurance adjuster even after a matter has been assigned to insurance defense counsel.  The Vermont Supreme Court held otherwise here, and reaffirmed its holding here.
  3. The Virginia opinion advises that even though parties can communicate directly with each other, the no-contact rule applies to a lawyer who is self-represented. Similarly, in the first decision it ever issued, the old Professional Conduct Board concluded that the no-contact rule “applies to lawyers representing themselves” to the same extent that it applies to lawyers who are representing clients.  I shared my thoughts on the decision here.

That’s it for now.  At least until I can figure out how to incorporate these two into a post on legal ethics:

Image result for luke and laura images

Flashback: is a self-represented lawyer subject to the “no-contact” rule?

Rule 4.2 prohibits a lawyer from communicating with a represented person on the subject of the representation without the consent of the person’s lawyer.  Generally, the rule does not prohibit represented persons from direct communication.

So, imagine this scenario:

  • Attorney self-represents in a divorce;
  • Lawyer represents Spouse.

Can Attorney communicate about the divorce with Spouse absent Lawyer’s consent?

For an analysis, flashback to this blog post from December 2016.

SRL

Monday Morning Answers: #67

This week’s answers come to you live from Boston, MA.  I’m preparing to run the Boston Marathon.  Unlike most marathons, Boston seeds its start.  Faster runners up front, with runners organized, more or less, in numerical order.

It appears that I’m not one of the favorites:

IMG_2118

Friday’s questions are HERE.  The answers follow the honor roll.

HONOR ROLL

  • Evan Barquist
  • Penny Benelli
  • Beth DeBernardi
  • Laura Gorsky
  • Robert Grundstein
  • Anthony Iarrapino
  • Keith Kasper
  • Patrick Kennedy
  • Nicole Killoran
  • Deborah Kirchwey
  • Elizabeth Kruska
  • Cristina Mansfield
  • Hal Miller
  • Jim Runcie

Answers

Question 1

Which is most accurate?  A contingent fee:

  • A.   Must be fair
  • B.   Must be in a writing
  • C.   Must be in a writing signed by the client; See, Rule 1.5(c) and my blog on the basics of contingent fees.
  • D.  Must not be calculated until after the client’s expenses are deducted

Question 2

Attorney called with an inquiry.  I listened. I replied “It doesn’t matter that your client ‘initiated’ it, the rule still applies.  And the fact that you cc’d your client on the e-mail is not the same as consent.”

What topic did Attorney call to discuss?

Communicating with a represented party.  Specifically, Attorney called to discuss whether by cc’ing her client on an email to opposing counsel she had given opposing counsel permission to contact client directly.  I blogged on the issue HERE.

Question 3

Fill in the blank.

In an advisory ethics opinion okaying the use of a particular type of technology, the Philadelphia Bar Association concluded that:

  • CROWDFUNDING sites can be a beneficial source of funds allowing the public to assist in the assertion of valid legal claims that might otherwise go without recourse. Thus, great care should be taken to make sure that the initial development of such sites not affect the ability of subsequent persons to use such a source.”

My blog on crowdfunding is HERE.

Question 4

North Carolina gained national attention for an amendment to its rules that went into effect last month.  If Vermont were to follow the Tar Heel state’s lead, nearly all lawyers would have a duty that, today, only applies to a subset of the bar.  It’s the rule that, right now, relates to:

  • A.  “Admiralty” lawyers being allowed to advertise their area of specialization
  • B.  Conflicts for defense attorneys who move from a public defender’s office to a state’s attorney’s office
  • C.   Television ads by lawyers who represent large classes of plaintiffs
  • D.  A prosecutor’s duty to disclose evidence that tends to negate the guilt of an accused.  

My blog on the issue is HERE.

Question 5

Earlier this week, three news media organizations were named co-winners of the 2017 Pulitzer Prize for Explanatory Journalism.  The organizations were The Miami Herald, The McClatchy Group DC, and The International Consortium of Investigative Journalists.  

The Pulitzer reflected their efforts on reporting a story that involved, among other things, Vladimir Putin, David Cameron, and offshore shell companies. The story came to light after a whistleblower “leaked” 11.5 million documents that a law firm had stored electronically. Review of the documents resulted in the law firm’s name partners being arrested and jailed on suspicion of money laundering.

By what name is the scandal better known?

THE PANAMA PAPERS

Monday Morning Answers: Week 48

Today is probably the biggest day in the history of Five For Friday. It’s the day I announce who (if anyone) earned permanent “Honor Roll” status by correctly answering last Friday’s bonus question.

Until then, this week’s answers immediately follow the Honor Roll.  To review the questions first, go HERE.

HONOR ROLL

perfect scores in  BLUE

  • Matt Anderson, Pratt Vreeland Kennelly Martin & White
  • Beth DeBernardi, Esq., ALJ, VT. Dept. of Labor (Permanent Honor Roll Status)
  • Laura Gorsky, Law Office of David Sunshine
  • Robert Grundstein, Esq.
  • Anthony Iarrapino, Esq.
  • Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
  • Patrick Kennedy, First Brother, Dealer.Com (Permanent Honor Roll Status)
  • Deborah Kirchwey, Esq.
  • Elizabeth Kruska , Marsicovetere Law
  • Jordana Levine, Marsicovetere Law
  • Matthew Little, Esq.
  • Scott Rowland, VLS Class of 2018
  • Kane Smart, Downs Rachlin Martin
  • Ben Traverse, Downs Rachlin Martin

ANSWERS

Question 1

It’s most likely that Web Bugs pose ethical dilemmas for attorneys who:

  • A.  Send emails to opposing counsel.  (See, last Tuesday’s blog post)
  • B.  Review an adverse party’s social media presence
  • C.  Review a juror’s social media presence
  • D.  Use cloud vendors that do not encrypt data at rest

Question 2

Hans called with an inquiry.  I listened, then replied: “one of the first things you need to decide & make clear is whether Luke will be representing you, or, stepping in to represent your clients.  I recommend the former.”

It’s most likely that Hans called while drafting a:

  • A.  Motion to Withdraw
  • B.   Succession Plan.  (For resources, see THIS blog post)
  • C.  Motion to Disqualify
  • D.  Advance Conflict Waiver

Question 3

Attorney called to ask which ethics issues should be on her radar as she transitions to a new job. In particular, issues that are likely to arise more often in the new gig than they arose at her firm. I responded: “first, ask yourself ‘who is the client?.’  That’s often the #1 challenge for lawyers in your position. Be especially aware that the people you work with & for may not always understand that you don’t necessarily represent them.”

Given my response, it’s most likely that Attorney is taking a job as a[n]:

  • A.  judge
  • B.  lobbyist
  • C.  government attorney.  See, Rule 1.13, Comment 9.  For more on a government attorney’s critical need to identify the client, read this post from NAAG
  • D.  law professor

Question 4

Attorney called me with an inquiry.  I listed, then said “a comment to the rule makes it clear that the rule doesn’t apply to an organization’s former constituents.”

Given my statement, it is most likely that Attorney called me to discuss the rule that deals with what topic.

Rule 4.2’s prohibition on communicating with a represented person does not apply to a represented organization’s former constituents.  See, Rule 4.2, Comment [7].

Question 5

I guess this is fitting on Veterans Day. Your job is to fill in the blank.

In a movie’s famous courtroom scene, Lawyer objected to testimony and asked that it be stricken from the record.  The following exchange ensued:

  • Judge:  “The objection’s overruled counsel.”
  • Lawyer:  “Sir, the defense ________ objects and requests a meeting in chambers so that his honor might have an opportunity to hear discussion before ruling on the objection.
  • Judge:  “The objection’s overruled counsel.”

A few moments later, the court went into recess.  Annoyed with Lawyer, Co-counsel said:

  • “I ______ object? Is that how it works.  Objection. Overruled. No, no, no, no I _______ object. Oh, well if you ______ object, let me take a moment to reconsider.”

What’s the missing word?  In A Few Good Men,  Lieutenant Commander JoAnne Galloway (Demi Moore), strenuously” objected after her first objection was overruled..  Lieutenant Sam Weinberg’s (Kevin Pollak) rejoineder is HERE.

*Permanent “Honor Roll” status for anyone who correctly names the restaurant that Nectar owned before he opened Nectar’s.

Patrick Kennedy and Beth DeBernardi knew that Nectar owned The Lure.  The restaurant was on Williston Road in South Burlington, essentially across the street from where McDonald’s sits now.   I don’t remember The Lure.  My earliest memory is of a Big Burger being on the lot.  Then, for years, it was Burger King. Now it’s an Urgent Care facility. Oh the irony. the-lure