Vermont Bar Association

Seminar Materials

2012 BASIC SKILLS IN VERMONT

PRACTICE & PROCEDURE

Professionalism Overview:

Ethics, Etiquette & Professional Standards

August 23 & 24, 2012

Windjammer Conference Center

South Burlington, VT

Faculty:

Eileen M. Blackwood, Esq.

Therese M. Corsones, Esq.

Michael E. Kennedy, Esq.

James E. Knapp, Esq.

P. Scott McGee, Esq.

Vermont Bar Association Basic Skills

Outline of the Professional Responsibility Program

August 23, 2012 Michael Kennedy, Esq.

Bar Counsel

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I General Overview

The Vermont Supreme Court has the constitutional authority to structure and administer the

State’s lawyer discipline program. Vt. Const., Ch. II, § 30. Pursuant to that authority, the Court has

promulgated Permanent Rules Governing Establishment and Operation of the Professional Responsibility

Program – more commonly known as “Administrative Order 9.” (hereinafter “A.O. 9”).

Rule 1 of Administrative Order 9 vests responsibility and supervision of the lawyer discipline

system with the Professional Responsibility Board. Rule 3 requires the Board to appoint Bar Counsel and

Disciplinary Counsel and sets out the powers and duties of each position. By rule,

Bar Counsel : administers the dispute resolution program : responds to inquiries from lawyers regarding ethics & law practice : consults and coordinates with state & local bar associations, as well other related organizations on matters concerning professional responsibility Disciplinary Counsel : administers the disciplinary program : investigates and litigates all disciplinary & disability matters II The Complaint Process

The Professional Responsibility Program receives between 250-300 complaints each year. Most

complaints come from clients. However, complaints are also filed by opposing counsel, judges, and

opposing parties. In addition, banks that maintain most types of trust accounts are required to notify

Disciplinary Counsel whenever an instrument drawn on a lawyer’s trust account is presented against

insufficient funds.

Question: What is the most common allegation in complaint filed with the PRB? Question: Lawyers in what practice area(s) are most likely to have complaints filed against them?

A. Screening

Every complaint received is screened is assigned a docket number and screened by Bar Counsel.

A.O. 9, Rule 10. “Screening” is a limited review intended to determine the nature of the complaint and

whether it can be resolved through non-disciplinary dispute resolution methods. Possible outcomes:

: Complaints that do not appear to require prosecution or sanctions can

be referred to an Assistance Panel or other non-disciplinary

dispute resolution program. A.O. 9, Rule 10(B).

: Complaints that allege conduct that appears to constitute misconduct that

might warrant a disciplinary sanction are referred for a formal investigation

by Disciplinary Counsel. A.O. 9, Rule 10(C).

: Complaints that do not appear to warrant either a formal investigation or

referral to an assistance panel are dismissed. A.O. 9, Rule 10(D).

: Complainant may appeal to Chair of the Board.

B. Non-Disciplinary Resolution

: Assistance Panel A.O. 9, Rule 4

: Referrals by Bar Counsel at screening, or by Disciplinary Counsel

after investigation

: Consider terms & conditions as alternative to discipline

: Possible terms/conditions include, but are not limited to

: law office management training

: CLE

: psychological counseling

: substance abuse programs

: referral to fee arbitration

: Attorney’s refusal to participate may result in referral to Disciplinary Counsel

C. Formal Investigation by Disciplinary Counsel

: Disciplinary Counsel asks the lawyer to respond;

: Limited Discovery tools.

Upon conclusion of investigation, Disciplinary Counsel may:

: dismiss the complaint; (no appeal)

: refer the complaint to an Assistance Panel or

other dispute resolution program; or,

: commence formal disciplinary or disability proceedings

A.O. 9, Rule 11(B).

D. Commencing Formal Disciplinary Proceedings

: Disciplinary Counsel cannot simply charge a lawyer with misconduct

: Must file “Request for Review for Probable Cause”; A.O. 9, Rule 11(C)

: if no PC, dismissed.

: if PC – formal proceedings are commenced by

1. A Petition of Misconduct; or

2. A Stipulation of Facts.

: Limited discovery period and tools, otherwise Rules of Civil

Procedure and Rules of Evidence Apply

: Assigned to a hearing panel.

: Either party may appeal panel’s decision to Supreme Court

OR

Supreme Court may order review on its own motion. If no review and

no appeal, Panel’s decision has force and effect of an order from

Supreme Court.

E. Range of Sanctions

Administrative Order 9, Rule 8:

: Admonition

: Public Reprimand

: Suspension

: Disbarment

: Disciplinary Probation can be imposed in connection with any sanction.

: Lawyers who are suspended for longer than six months or who are

disbarred, must Petition for Reinstatement before regaining privilege to

practice law.

: General sanction analysis – ABA Standards for Imposing Lawyer Standard’s

: Duty violated + State of Mind + Injury = Presumptive Sanction

: Presumptive Sanction modified by aggravating & mitigating factors

and an analysis of prior case law

Question: What are some aggravating and mitigating factors?

F. Other

: Interim suspension A.O. 9, Rule 18

: Reciprocal Discipline A.O. 9, Rule 20

: Disability A.O. 9, Rule 21

The Digital Version of the Vermont Rules of Professional Conduct The Vermont Judiciary Website published a PDF with the rules, comments, and notes. The PDF can be found through two different routes.

a. Start at www.vtbar.org, and select “For Attorneys” from the menu bar at the top of the page, then select Professional Ethics from the list, and the Rules will be one of the choices on the Professional Ethics Page.

b. Start at the Vermont Judiciary Website, select the Legal Information Link from the bar across the top, then select Practice Resources from the drop-down menu and then select Vermont Rule of Professional Conduct from the flyout

The Paper Version of the Professional Conduct Rules The Professional Conduct Rules are printed in the “Probate Rules” volume of the Vermont Statutes Annotated (Green Books) Professional Responsibility Section/Committee Opinions As a service to its members, the Vermont Bar Association created a committee of volunteers to respond to questions about ethical behavior. The Committee consists of 12-15 individuals, many of whom have 15 or more years of experience. Any member of the Bar Association can request an opinion but the request must involve the obligations of the person making the request. The committee does not issue opinions requested by Party A, but addressing conduct of Party B. The archive of opinions is available under the Attorney Resources link from the main page of the Bar Association website. Professional Conduct Board Decisions The decisions of the disciplinary authorities are available in CaseMaker™ and from the Vermont Department of Libraries – Legal Resources page here: http://libraries.vermont.gov/law

Conflict of Interest

OPINION NO. 2011-2

Synopsis

Although there have been changes in the Rules of Professional Conduct and in the rules

and regulations applicable to real estate closings, the Committee concludes the opinion

expressed in Opinion 2001-02 remains valid under the present circumstances. The

Committee continues to believe that an attorney may represent the lender and the

buyer/borrower in a real estate closing if the attorney complies with the provisions of Rule

1.7. The requirements for representing multiple parties in a real estate transaction are set

out in Rule 1.7. The additional issues raised by changes in various rules and regulations

related to real estate closings are a factor in determining whether the possibility of

conflicting interests is of such significance that an attorney cannot provide diligent and

competent representation to both parties simultaneously.

Question Presented

An attorney inquires whether the attorney may continue to represent both the lender and the

borrower/buyer in a real estate transaction, giving consideration to the changes in the rules and

regulations applicable to real estate practice and the changes to the Rules of Professional

Conduct.

Applicable Rules

Rule 1.0 (b) ‘‘Confirmed in writing,’’ when used in reference to the informed consent of a

person, denotes informed consent that is given in writing by the person or a writing that a lawyer

promptly transmits to the person confirming an oral informed consent. See paragraph (e) for the

definition of ‘‘informed consent.’’ If it is not feasible to obtain or transmit the writing at the time

the person gives informed consent, then the lawyer must obtain or transmit it within a reasonable

time thereafter.

Rule 1.0 (e) ‘‘Informed consent’’ denotes the agreement by a person to a proposed course of

conduct after the lawyer has communicated adequate information and explanation about the

material risks of and reasonably available alternatives to the proposed course of conduct.

Rule 1.7. CONFLICT OF INTEREST: CURRENT CLIENTS

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the

representation involves a concurrent conflict of interest. A concurrent conflict of interest exists

if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be

materially limited by the lawyer’s responsibilities to another client, a former client or a third

person or by a personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a

lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent

and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client

against another client represented by the lawyer in the same litigation or other proceeding

before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.—

Amended June 17, 2009, eff. Sept. 1, 2009.

Discussion

Based on recent inquiry, the Committee was encouraged to review and reconsider the issues

raised in PRC Opinion 01-02 which concluded that under many circumstances the Rules of

Professional Conduct would allow the joint representation of the lender and the buyer/borrower

in a real estate transaction. The current inquiry suggests that changes in the regulations

applicable to residential real estate closings increase the possibility of a direct conflict arising in

the course of the dual representation and the conclusion of PRC Opinion 01-02 should be

revisited to account for the increased risk of conflicts.

PRC Opinion 01-02 relied in part upon the replacement of the Code of Professional

Responsibility with the Rules of Professional Conduct creating a different standard for review of

conflicts involving current clients. A significant element of the Committee’s decision in 2002

was the revision to Rule 1.7. The reason for the current request is that the Rules of Professional

Conduct have been revised again, including substantial revisions to Rule 1.7, that became

effective in September of 2009.

The 2009 change in the language of Rule 1.7 did not alter the essential provisions of the Rule or

the procedures for determining when it is appropriate to represent more than one party in a

specific transaction. The new Rule 1.7 acknowledges that there is no absolute prohibition on

representing multiple clients in a single matter by providing a method for assessing when

representing multiple parties is appropriate.

Prior to commencing the representation of multiple clients in a single transaction, the attorney

must make an independent determination that the attorney will be able to provide “diligent and

competent representation to each affected client.” This assessment must be made on a case by

case basis; it can never be presumed that it is generally acceptable to represent two parties in a

single transaction. The assessment must be made based on the circumstances of each party, in

particular, the sophistication and general knowledge of each party should be taken into account

when making the assessment. Once the attorney makes the determination that both parties can be

appropriately represented, the attorney must make a meaningful disclosure of the risks and

benefits of the multiple representation to both parties and obtain each party's informed

consent. The meaning of “informed consent” is found in Rule 1.0 as cited above.

The factual circumstances here are the same as those discussed in Opinion 01-02. The closing

practices described in that opinion continue to be the norm. The number of firms involved in

doing real estate closings is probably contracting so that the majority of closings are conducted

by a relatively small number of firms. Those firms likely continue to view the lender as the

primary client and the borrower as the second client. The services provided to the borrower are

generally limited to completing the closing and providing title insurance. There is likely limited

consultation with the borrower or buyer prior to the closing beyond confirming the need for a

certain amount of money to finalize the closing.

The change in circumstances flowing from the adoption of the Good Faith Estimate under the

RESPA rules introduces a new factor into the analysis but may not ultimately change the

determination whether it is appropriate to represent the lender and the borrower/buyer in a real

estate transaction. Very briefly, the changes in the Good Faith Estimate rules require the lender

to provide a borrower with an estimate of the closing costs applicable to a specific

transaction. With respect to some of those closing costs, the estimate is binding on the lender. If

the lender provides an erroneous estimate, the lender may not amend the closing costs when the

error is discovered absent certain extenuating circumstances. This would appear to create a clear

opportunity for conflict. For example, if a lender underestimates and improperly discloses the

Vermont Property Transfer Tax applicable to a transfer, the lender cannot collect a greater

transfer tax at the closing without demonstrating a change in circumstances. The potential

conflict arises when the same attorney represents the lender, whose interest is in collecting the

increased transfer tax and at the same time represents the borrower who is interested in enforcing

the provisions in the rule that require the lender to make up the difference between the low

estimate and the actual amount of the tax. This circumstance is a good example of a situation in

which the attorney cannot provide appropriate representation to both parties because only one

party can prevail in this circumstance. If this situation is known in advance, the attorney cannot

make the initial determination that the interests of one party will not interfere with the

representation of the other. The real question for attorneys representing clients in real estate

transactions is how frequently circumstances arise in which the interests of the lender are adverse

to the interests of the borrower/lender.

The process of obtaining consent to multiple representations begins with an appropriate

disclosure of the risks and benefits of the joint representation. The rules do not describe the

contents of the disclosure, but the Comments do advise that the relative sophistication of the

parties may be a factor in determining whether the consent was informed. If one party is

relatively unsophisticated and has limited experience and understanding of general business

affairs, the attorney must assess whether that party fully understands the potential risks of

multiple representation. The attorney should also consider if the buyer’s consent is based on the

increased cost of separate representation rather than a true consideration of potential conflicts.

The consent to the representation of multiple parties must be memorialized in a writing. The best

“written consent” includes a summary of the disclosures made by the attorney and includes a

signature of the client. Rule 1.0 acknowledges that written consent may also be satisfied with a

communication by the attorney to the client confirming an oral consent. Attorneys should be

careful when using the later method, however, because the risk that the disclosure or consent was

inadequate rests on the attorney.

As with PRC Opinion 01-02, there are additional issues which all attorneys should keep in

mind. Several of these issues are closely related to the actual inquiry, but are not directly raised

in the inquiry.

An attorney who undertakes the representation of the lender and borrower/buyer in a real estate

transaction may find that a more extensive conflict arises during the course of the

representation. For example, the attorney may know that the lender does not allow concessions

by the sellers to the buyers in excess of the closing costs, but the attorney is advised at the

commencement of the representation that the first task will be to negotiate a substantial

concession by the seller to the buyer well in excess of the estimated closing costs, and to disguise

the concession to avoid the lender's rules. The attorney is now presented with a new conflict in

which the rules permitting a waiver will not likely apply. The attorney has information gained

in the course of the representation which the attorney must now disclose to the lender

client. However, having obtained the information from a current client, the attorney must first

obtain consent, after disclosure from the borrower client before advising the lender of the

circumstances. In this example, it is unlikely that the borrower will authorize the attorney to

share the information with the lender. The attorney must now withdraw because the attorney can

no longer provide competent representation to both parties. Whether the attorney can continue to

represent one party after withdrawing is governed by the provisions of Rule 1.9.

Of equal importance is the issue that arises when the closing attorney elects to represent only the

lender, leaving the borrower/buyer unrepresented. The attorney should be careful to comply with

the provisions of Rule 4.3, including the newest addition to the rule. An attorney interacting with

an un-represented person at a closing should be careful to disclose the attorney's role in

representing only the lender. In addition, the attorney should be prepared to identify

circumstances in which the attorney must advise the unrepresented person to seek counsel from

an independent attorney. The closing is a particularly stressful time for many people and the

unrepresented may find that the attorney's explanations or discussions about the documents may

seem like the attorney is representing them also.

CONFIDENCES OF THE CLIENT

OPINION 2010-6

DIGEST:

Vermont attorneys can utilize Software as a Service in connection with confidential client information, property, and communications, including for storage, processing, transmission, and calendaring of such materials, as long as they take reasonable precautions to protect the confidentiality of and to ensure access to these materials.

QUESTIONS PRESENTED

The Vermont Bar Association Professional Responsibility Section has been asked to address the propriety of use by attorneys and law firms of Software as a Service (“SaaS”) which is also known as Cloud Computing. Subsidiary questions include whether client documents and information can be remotely stored and backed up using SaaS systems; whether there is any subset of client property that cannot be stored using SaaS; whether lawyers can use SaaS and web-based email and calendaring systems; and whether use of remote document synchronization systems is permissible.

RELEVANT RULES

Rule 1.6. Confidentiality of Information

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent . . . .

Comments to Rule 1.6: Acting Competently to Preserve Confidentiality

[16] A lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision.

[17] When transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. This duty, however, does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy. Special circumstances, however, may warrant

special precautions. Factors to be considered in determining the reasonableness of the lawyer’s expectation of confidentiality include the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement. A client may require the lawyer to implement special security measures not

required by this rule or may give informed consent to the use of a means of communication that would otherwise be prohibited by this rule.

Rule 1.1. Competence

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Rule 1.15. Safekeeping Property

(a)(1) A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. . . . [Client] property shall be identified as such and appropriately safeguarded.

Rule 5.3. Responsibilities Regarding Nonlawyer Assistants

With respect to a nonlawyer employed or retained by or associated with a lawyer:

(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer;

(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer . . .

DISCUSSION

SaaS and Cloud Computing refer to a constellation of web-based data processing, transmission, and storage services that are available over the internet. In the past, client property was handled and stored on site, and lawyer-client communications occurred in person. Technological advances, however, have changed the way data is transmitted and stored, and the ways lawyers communicate

with clients. These changes in technology have been accompanied by new questions about how lawyers should act to protect confidentiality of client information.

The propriety of lawyers using SaaS has attracted significant attention from Bar Association Ethics Committees in recent years, and a consensus position has been developing that allows lawyers to

store client data in web based systems, and about the steps lawyers should consider and take when engaging in Cloud Computing. This opinion therefore now turns to a summary of recent ethics decisions addressing SaaS.

North Carolina Proposed Formal Ethics Opinion No. 6

Over a period spanning approximately 1½ years, the North Carolina State Bar Association has issued successive drafts of a formal ethics opinion addressing attorney use of SaaS. The third draft of this Formal Ethics Opinion, issued in October 2011, endorses the use of SaaS to store law firm data, including confidential client information, as long as steps are taken to protect the confidentiality of client information and to preserve client property. Proposed NC FEO 6 steps back from a series of mandatory steps that lawyers would have been required to take in connection with use of SaaS, as

set forth in the previous April 2011 draft of this Opinion. Instead, the Opinion now provides that lawyers:

“may use SaaS if reasonable care is taken to minimize the risks of inadvertent disclosure of

confidential information and to protect the security of client information and client files. A

lawyer must fulfill the duties to protect client information and to safeguard client files by applying the same diligence and competency to manage the risks of SaaS that the lawyer is required to apply when representing clients.”

Because of the rapidly changing nature of technology, Proposed NC FEO 6 declines to impose specific

requirements on lawyers who use Cloud Computing in connection with client data. Instead, the Opinion identifies a series of steps that lawyers should consider taking before using SaaS, and requires lawyers to engage in ongoing due diligence and continuing legal education to ensure that remotely stored client data remains secure and accessible. Factors identified in this Opinion for those who use SaaS include:

a. Understanding and protecting against security risks inherent in the internet, including end-user vulnerabilities in the lawyer’s office;

b. Including provisions about protection of client confidences in the agreement between the lawyer and the SaaS vendor;

c. Ensuring that there are mechanisms for obtaining access to, retrieving, and protecting data if the lawyer terminates use of the SaaS product, or if the SaaS vendor goes out of business or experiences a break in continuity;

d. Carefully reviewing the terms of the user agreement, including its security provisions;

e. Evaluating the security measures used by the vendor; and

f. Confirming the extent to which the SaaS vendor backs up the data it is storing.

Iowa State Bar Association Ethics & Practice Committee Opinion 11-01

In September 2011, the Iowa State Bar Ethics and Practice Committee took a similar approach to Cloud Computing in Opinion 11-01. Applying comment 17 to Rule 1.6, Opinion

11-01 recognized that:

“the degree of protection to be afforded client information varies with the client, matter and information involved. But it places on the lawyer the obligation to perform due diligence to assess the degree of protection that will be needed and to act accordingly.”

The Opinion declines to address in detail the specifics of individual SaaS products, because such guidance would quickly prove outdated, and may be beyond the scope of a lawyer’s expertise. Instead, Opinion 11-01 suggests a series of matters into which lawyers should inquire before storing client data on remote servers they do not control, including:

a. Availability of unrestricted access to the data, and ability to access the data through alternate means;

b. Performance of due diligence about the SaaS vendor, including its operating record, recommendations by other users, the provider’s operating location, its end user agreement (including provisions on choice of law, limitations on liability and damages, and rights in the stored data);

c. Financial arrangements, including access to data in case of nonpayment or default;

d. Arrangements upon termination of relationship with SaaS provider, including access to data; and

e. Nature of confidentiality protections, including password protection and availability of different levels of encryption.

The Opinion further notes that lawyers may be able to discharge their responsibilities by relying on due diligence efforts by non-lawyer personnel with expertise in these areas.

Pennsylvania Bar Association Formal Opinion 2011-200

In its recent Formal Opinion 2011-200, the Pennsylvania Bar Association Committee on Legal Ethics

and Professional Responsibility similarly concluded that attorneys can use cloud computing if stored materials remain confidential, and reasonable steps are taken to protect stored data from risks including security breaches and loss of data. This Pennsylvania Opinion recommends various steps the lawyer should explore with the SaaS vendor, including:

a. the existence of an obligation imposed on the vendor to preserve security;

b. a mechanism for the vendor to notify the lawyer if a third party requests access to the stored information;

c. the existence of systems that are sufficient to protect the data from unauthorized access;

d. an agreement about how confidential client information will be protected;

e. the ability to review the vendor’s security systems; and

f. tools to protect the lawyer’s ability to access and retrieve the data.

California Bar Professional Responsibility and Conduct Committee Formal Op. 2010-179

Recognizing that a technology-specific opinion “would likely become obsolete shortly,” California Bar Ethics Opinion 2010-179 similarly endorses Cloud Computing, and then provides a general analysis of the considerations a lawyer should evaluate when using SaaS, including:

a. The ability of the lawyer to assess the security provided by the provider, including the specifics of the technology, whether specific precautions can be used to increase the level of security, and limits on who is permitted to monitor use of the software, evaluated by someone who possesses a sufficient level of competence to address these issues;

b. Availability of legal consequences for improper interception of or access to the data;

c. Degree of sensitivity of the information being stored

d. Potential impact of unauthorized disclosure on the client;

e. Urgency of the situation; and

f. Client circumstances and instructions.

New York State Bar Professional Ethics Committee Opinion 842

In September 2010, the New York State Bar Professional Ethics Committee issued a similar opinion, adopting a reasonableness standard and discussing the following factors that a lawyer should consider when storing client information in the cloud:

a. Confirming that the SaaS vendor has a enforceable duty to maintain security and confidentiality, including prompt notification of the attorney upon service of process requiring disclosure of the data;

b. Investigating the provider’s security procedures, policies, and methods for recovering data;

c. Guarding against infiltration attempts using available technology;

d. Determining whether the vendor can transfer and then permanently delete the data if the lawyer changes providers;

e. Periodically reconfirming that security and access measures remain sufficient as technologies change; and

f. Remaining current on the law with respect to changing technologies to ensure that client data is not subject to legal risk, including waiver of confidentiality.

Other Opinions and Authorities

Ethics opinions issued by other State Bar Associations have taken similar positions.

State Bar of Arizona Ethics Opinion 09-04, for example, reaffirms the conclusion drawn in its prior Ethics Opinion 05-04, and concludes that attorneys can use online storage and retrieval systems for

client documents and information as long as they take reasonable precautions to ensure that

the materials are safe and confidential. This Arizona Opinion further notes that lawyers should recognize that their expertise with respect to technology may be limited and should therefore ensure review of precautions by competent personnel, and periodically review systems to ensure that security precautions remain reasonable.

Opinion 701 of the New Jersey Advisory Committee on Professional Ethics discusses the benefits that may arise from web-based digital storage of and access to client documents and information, and then provides as follows:

“The critical requirement . . . is that the attorney ‘exercise reasonable care’ against the possibility of unauthorized access to client information. A lawyer is required to exercise sound professional judgment on the steps necessary to secure client confidences against foreseeable attempts at unauthorized access. ‘Reasonable care,’ however, does not mean

that the lawyer absolutely and strictly guarantees that the information will be utterly

invulnerable against all unauthorized access. Such a guarantee is impossible, and a lawyer can no more guarantee against unauthorized access to electronic information than he can guarantee that a burglar will not break into his file rom, or that someone will not illegally intercept his mail or steal a fax.”

Opinion 701 continues by noting that the content of the obligation to exercise reasonable care depends on the circumstances and must be informed by the available technology, and personnel handling client information must be subject to an enforceable obligation to preserve confidentiality and security. In addition, Opinion 701 excludes original “client property” from its holding, and notes that lawyers must continue to maintain certain original documents, like wills, trusts, deeds, contracts, and corporate bylaws and minutes, and cannot rely solely on digital storage of these

materials. This Opinion further stresses the importance of client consent with respect to remote storage of client information.

To similar effect are Ethics Opinion 2010-02 issued by the Alabama State Bar Association, and Formal

Opinion No. 33 issued by the State Bar of Nevada Standing Committee on Ethics and Professional Responsibility. Many other resources also are available about the use of SaaS, including the ABA Commission on Ethics 20/20 Working Group’s September 20, 2010 white papers discussing SaaS, and the Law Society of British Columbia’s July 15, 2011 Report of the Cloud Computing Working Group.

CONCLUSION

The Vermont Bar Association Professional Responsibility Section agrees with the consensus view that has emerged with respect to use of SaaS. Vermont lawyers’ obligations in this area include providing competent representation, maintaining confidentiality of client information, and protecting client property in their possession. As new technologies emerge, the meaning of “competent representation” may change, and lawyers may be called upon to employ new tools to represent their clients. Given the potential for technology to grow and change rapidly, this Opinion concurs with the

views expressed in other States, that establishment of specific conditions precedent to using SaaS would not be prudent. Rather, Vermont lawyers must exercise due diligence when using new technologies, including Cloud Computing. While it is not appropriate to establish a checklist of factors a lawyer must examine, the examples given above are illustrative of factors that may be important in a given situation. Complying with the required level of due diligence will often involve a reasonable understanding of:

a. the vendor’s security system;

b. what practical and foreseeable limits, if any, may exist to the lawyer’s ability to ensure access to, protection of, and retrieval of the data;

c. the material terms of the user agreement;

d. the vendor’s commitment to protecting confidentially of the data;

e. the nature and sensitivity of the stored information;

f. notice provisions if a third party seeks or gains (whether inadvertently or otherwise) access to the data; and

g. other regulatory, compliance, and document retention obligations that may apply based upon the nature of the stored data and the lawyer’s practice.

In addition, the lawyer should consider:

a. giving notice to the client about the proposed method for storing client data;

b. having the vendor’s security and access systems reviewed by competent technical personnel;

c. establishing a system for periodic review of the vendor’s system to be sure the system remains current with evolving technology and legal requirements; and

d. taking reasonable measures to stay apprised of current developments regarding

SaaS systems and the benefits and risks they present.

In summary, and with respect to the specific questions posed, the Professional

Responsibility Section responds as follows.

Vermont attorneys may use SaaS systems for storing, processing, and retrieving client property, as

long as they take reasonable precautions to ensure the property is secure and accessible. The nature of the precautions depends on the circumstances. The ability to engage in Cloud Computing is not limited by the specific location of the remote server, although some of the factors noted above,

including choice of law clauses, and concerns about access to data in the event of a service interruption or an emergency, may be implicated by the location of the storage server and the extent of backup service provided by the vendor.

Depending on the circumstances, there may be limits on systems that can be used and client property that can be stored with an SaaS vendor, and lawyers must assess each situation

based upon the specific facts and circumstances. For example, it may not be appropriate to rely solely on remote digital storage for preservation of original client property like wills, or other client documents that are subject to permanent retention obligations. Similarly, given that Cloud Computing involves storage of information in the hands of a third party, a lawyer handling particularly sensitive client property, like trade secrets may conclude after consultation with the client that remote SaaS storage is not sufficiently secure.

A lawyer’s use of email, calendar, and remote synchronization systems, including systems that are web-based and offered by SaaS vendors, is subject to the same inquiry. Before using such

systems, the lawyer should take reasonable precautions to ensure that information in the system is secure and accessible.

Finally, given the rapidly changing nature of technology and the significant manner in which new technologies impact the legal practice including the manner in which confidential client information is communicated and stored, the Professional Responsibility Section invites the Vermont Supreme Court to examine whether changes in applicable Rules of Procedure and Rules of Professional Conduct are warranted to address these issues.

VBA ADVISORY ETHICS OPINION 01-02 Page 1 of 5

Vermont Bar Association, PO Box 100, Montpelier VT 05601-0100; Phone – (802) 223-2020; Fax – (802) 223-1573; www.vtbar.org

ADVISORY ETHICS OPINION 2001-02

SYNOPSIS ONE:

The Committee revises its prior position on the propriety of an attorney representing a lender and a borrower in the sametransaction. An attorney may represent a lender and a borrower in a real estate transaction if the attorney satisfies therequirements of Rule 1.7 of the Rules of Professional Conduct (the “Rules”) by concluding that: (a) the representation of thelender and borrower in the same transaction will not adversely affect the relationship with either client; (b) that the attorney’sjudgment will not be materially limited by responsibilities to either client or to a third party; and, (c) that each client agrees tothe dual representation after consultation. The consultation must occur sufficiently before the closing to allow either client toobtain separate representation if desired. The consultation must also include a discussion of the implications of the commonrepresentation and the risks and benefits of the common representation.

The Committee continues to believe that it is not appropriate to represent a seller and buyer in a real estate transaction.

SYNOPSIS TWO:

An attorney or law firm may form a title and escrow company to provide title and escrow services, but such services constitutelaw related services and the Rules apply to each attorney involved in providing these related services.

See also Advisory Ethics Opinions 90-8, 94-8, 95-03 and 95-09

FACTS:

The attorney requesting this opinion acts as a closing agent for a lending institution. The lending institution is changing itsclosing procedures. Under the old closing practices, the attorney was responsible for collecting and reviewing informationrelated to the closing and for preparing the closing documents. The new procedure includes searching the title to the subjectproperty for the lender. The attorney believes that borrowers will be asked to sign a disclosure during the closing processwhich will provide, in essence, that the closing attorney represents the lending institution and that the borrower may retainseparate counsel if he or she so chooses. The request letter does not indicate (i) when the disclosure will be presented to theprospective borrower; or, (ii) what type of report on the state of the title will be issued as a result of the title search conductedby the closing attorney; or, (iii) to whom the title report will be addressed. The closing agent’s fee, including the cost of thetitle search, will be posted as an expense to the borrower on the closing statement.

In a supplemental request, the attorney inquires whether a firm, or members of a firm may create a separate entity to performtitle services for the firm, without the title entity being engaged in the practice of law.

OPINION ONE:

This committee has issued four prior opinions on similar subjects:

In Opinion 90-8 the Committee considered whether an attorney could represent the borrower and the lender in the sametransaction. Our conclusion was that such representation constituted a conflict of interest under DR-5-105 of the Code ofProfessional Responsibility (the “Code”) and that the conflict of interest was of such a nature that it could not be waivedeffectively.

In Opinion 94-8 the Committee considered whether an attorney was free to represent only the lender in a loan transaction if thebuyer/borrower was unrepresented. The Committee concluded that an attorney could do so.

In Opinion 95-03 restated the proposition that an attorney could not simultaneously represent the lender and theborrower/buyer in a single transaction. At that time, the Code was still in effect.

In Opinion 95-09 provided guidance to the lenders’ attorneys for dealing with unrepresented borrowers.

On September 1, 1999, the Vermont Supreme Court adopted the Rules and the Code’s relevance was limited to activitiesoccurring prior to that date.

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In deciding Opinion 90-8, the Committee’s intention was to provide a framework to protect the borrower/buyer by limiting thepossibility of having the judgment of the borrower’s/buyer’s attorney encumbered by divided loyalties. The Committee is nowrepresented with an opportunity to reconsider its earlier position and provide a framework, consistent with the Rules, withinwhich the borrower and lender may both be represented by the same attorney. In reaching its conclusion, the Committee hasconsidered (1) the language of the relevant provision of the Rules; (2) the evolution of closing practices in the State ofVermont; and (3) the impact of the Vermont Supreme Court decisions in Hunter Broadcasting v. City of Burlington, 164 Vt391 (1995) and Bianchi v. Lorentz, 166 Vt 555 (1997) and Estate of Fleming v. Nicholson, 168 Vt. 495 (1998).

Beginning in the mid-to-late 1980's new lenders began to enter the Vermont market. In response, local lending institutionsbegan to change closing practices to remain competitive. One of the significant changes was to reassign tasks from thelender’s employees to the borrower’s attorney, including the preparation of the closing documents. The lender would send theborrower's attorney a package of blank or partially completed documents along with a set of closing instructions detailing howthe attorney should complete the forms and what was required before the closing could occur. The borrower's attorney wasresponsible for completing the forms , determining when the requirements of the closing instructions were satisfied anddisbursing the money from the attorney's trust account.

For a time thereafter the borrower in a typical transaction would retain counsel to perform the title work and review the closingpaperwork prepared by the lender’s attorney. The lender’s attorney would close the loan. Under these circumstances theborrower usually paid the attorney fees for both attorneys.

By the mid-1990's the process for closing loans had changed. The common practice involved the selection of several attorneysto close loans for a particular financial institution. Many firms developed a sophisticated process for closing loans and relatedpurchases for lenders. These attorneys, if asked, would identify the lender as their client. The attorneys became skilled atpreparing and processing the lender's real estate closing forms. Most firms would close loans for several lending institutions.Due to their greater efficiency, the same firms were able to close loans for mortgage companies and other non-bank lenderseffectively. A substantial proportion of the real estate closing business flowed to these firms. In many cases the closingattorney would examine the title, provide a title report which might be delivered to both the lender and the borrower, andarrange for or issue the title insurance policy for the lender and, if desired, the buyer or owner in a refinancing. The workcompleted by the attorneys was not significantly different than the scope of work completed by an attorney representing theborrower, except now the lender was generally assumed to be the client. In many such cases, buyers opted to proceed withoutcounsel.

The lender’s attorney would prepare some or all of the loan documents, which over time became standard FNMA/FHLMCforms which were essentially non-negotiable in any meaningful way. The lender’s attorney would also prepare a closingstatement, checks and disburse the funds from the closing. Most of the interaction between the lender’s attorney and theborrower/buyer occurred almost exclusively at the closing table. The lender’s attorney might have five or more closingsscheduled in the same day. The time available to explain the process, the documents, and most important, the nature of anytitle issues was limited. As a practical matter some borrowers and purchasers did not feel or understand the need for separaterepresentation, and most closings occurred without issues. When there were significant title issues, the lender’s attorney wouldeither work out a resolution or work with other attorneys who may have been brought into the process when the problem cameto light to resolve the issues. Most issues were sufficiently resolved so that the closing could occur. Most borrowers/buyerswere satisfied with the process and the closing costs related to attorney representation were generally reasonable. Problems anderrors occurred but were generally resolved sufficiently satisfactorily that no "hue and cry" was raised against the process.Hundreds of millions of dollars of real estate closings occurred under these circumstances.

These changes in circumstances may not yet be universal throughout the State, but the course is set. The process of closingresidential real estate transactions in Vermont is becoming more like the rest of the United States. Previously a person mightstay in the same property for most of his or her life, and the characteristics of the property were important to the client. Thecurrent trend assumes that people will stay in the same property for seven to ten years. Property turns over faster, and may bemore fungible than in the past. In many areas of the State, residential developments are growing in size while becominghomogenized. The individual characteristics of a specific property may not be the most important element of the transaction. Itwould appear that in many areas of the State, the practice of law as it relates to the typical residential real estate transaction isless a function of counseling the client about legal rights and responsibilities than about processing the paper required to closethe transaction as fast and effectively as possible. The typical client in a residential closing may not be interested in meetingwith his or her attorney to review the title opinion in detail. The client is often less interested in the lawyer’s counsel than thequick and inexpensive processing of the transaction.

Moreover, the Hunter, Bianchi and Fleming decisions significantly added to pre-closing due diligence, greatly increasing costsincurred by borrowers even in routine real estate transactions. Those new burdens coupled with our decision in Opinion 90-8have resulted in many borrowers proceeding to closing without an attorney. It is the Committee’s view that a borrower/buyer

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who shares an attorney with the lender is better off than a borrower who has no attorney. The Rules now provides enoughflexibility to make that possible.

There are several constants that remain in place, even as the practical process of closing a real estate transaction appears tochange. There are three parties, each of whom is entitled to the separate and vigorous representation of a qualified attorneyacting without outside influence. Whether the nature of the real estate closing has in fact changed to the point where it is reallya paper moving exercise, or not, an attorney who chooses to represent a party in a real estate transaction is bound by the Rules.

When a lawyer represents the lender in a real estate closing and also provides services to the buyer/borrower, there is a conflictof interest. The real question is whether the conflict of interest is of such a nature that it can not be waived under theapplicable Rules. At the time that Opinion 90-8 was issued, there was a significant concern that a lawyer would learninformation such as permitting issues that would be relevant to the lender in underwriting the decision to make the loan. If thelawyer represented both clients the lawyer could not disclose the information to the lender without the Borrower’s consent.Permitting issues were generally regarded as being outside the scope of the title certification required by lenders. As a result ofthe decisions in Hunter Broadcasting, Bianchi and Fleming the requirements of title certification have been substantiallybroadened. Conversely, the risk of violating a client’s confidence with respect to permitting issues has been substantiallyreduced.

Rule 1.7 establishes the constraints on representing more than one person. The rule is stated as a prohibition. An attorney shallnot represent a client if the representation of that client is adverse to the interest of another client (Rule 1.7(a)) or if therepresentation of the client will be materially limited by the attorney’s responsibilities to another client, a third party or thelawyer’s own interest (Rule 1.7(b)). There is an exception where the attorney makes a determination that the representation ofone client will not adversely affect the representation of another client, or that the representation of the client will not beadversely affected by the attorney’s responsibilities to another client, a third party or the attorney’s own interest. Also, in eachcase the client(s) must consent to the representation, after “consultation.”

The essential elements of the lawyer’s assignment for the lender and borrower are similar. In each case, both clients want to besure that (i) in the case of a purchase, the transfer documents are correct and complete; (ii) the bank loan documents arecompleted properly and accurately reflect the transaction as approved by the Lender and understood by the purchaser/borrower;(iii) that all closing proceeds are properly accounted for and disbursed to the correct parties; (iv) that a complete andappropriate title report is prepared and delivered to the client, and (v) that appropriate title insurance is procured for both thelender and borrower/buyer. Where the goals and desires of the two clients are similar, the conflict of interest can be waived bywell informed clients.

The provisions of DR5-105 of the Code specified that an attorney could undertake multiple representation only when it was“obvious” to the attorney that the attorney could adequately represent the interests of both parties. The Committee concludedin Opinion 90-8 that it would never be obvious that the attorney could adequately represent the interest of both parties. Theadoption of the Rules invokes a different test. The provisions of Rule 1.7 require that the attorney reasonably believe that thedual representation will not adversely affect the attorney’s obligation with respect to either client. The softening of thestandard from “obvious” to “reasonable belief” widens the possibility that dual representation can work in the proper cases,particularly in light of the changes discussed above.

Once the attorney has formed the conclusion under the first part of the test, the attorney must then consult with each client toexplain the implications of the common representation and the advantages and risks involved. Disclosure should not occur atthe closing table. The consultation should occur sufficiently in advance of the closing to give each client the opportunity todetermine whether that party would prefer independent representation. Disclosure in a real estate matter should include adiscussion of the potential different interests of borrower and lender. For example, the borrower may have a potential desire towaive what may appear to lay people as minor matters on the title or irregularities in the documents in order to close, whereasthe lender may be constrained by underwriting requirements to correct the problems prior to the closing. The lender may insistthat certain documents be signed as part of the closing which obligate the borrower to a course of action the borrower does notwish to take. There may come a time in a closing where the attorney learns something about the property or the borrowerwhich should be disclosed to the lender. If the borrower client will not authorize the disclosure of the information, anirreconcilable conflict may arise and the attorney will be precluded from representing either party. It is only after suchdisclosures are made that a client may give an informed waiver of the conflict inherent in the dual representation.

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After the disclosure, the attorney must obtain the consent to the dual representation. Prudence suggests that the conflict waiverbe in writing and include the essential elements of the consultation as well. The committee has tried to list some points thatcould be incorporated in a waiver as a preliminary guidance. The Committee believes that each waiver should address thespecific transaction and the relative sophistication of the clients. It may not always be sufficient to use a standard form.1

Should a conflict between the two clients arise during the course of the representation, the attorney representing the two partiesmust withdraw from representation. The provisions of Rule 1.9 describe the circumstances in which the attorney may continueto represent one of the parties. The withdrawing attorney must be careful to consider the situation and the information that hascome into the attorney’s possession and the impact of knowing the information on the party who the attorney will no longerrepresent. It is likely that continuing to represent one party over another in this situation will be the rare case.

This opinion does not conclude that it is appropriate for attorneys to represent both the lender and the buyer/borrower in everycircumstance. The attorney’s judgment regarding the relative sophistication of the clients and the issues presented by thespecific transaction is critical.

If a dispute arises between the parties about the subject of the representation, the attorney will have to withdraw from therepresentation and will not be able to represent either party in the dispute.

In the circumstance where a client retains an attorney for the specific transaction, either because the client is concerned aboutsome aspect of the particular transaction or because the client wants individual representation, then the lawyer must be morecareful in making the determination that the attorney “reasonably believes” that the attorney can represent the lender also. Theattorney must factor into the decision the specific reasons the client retained the attorney in the first case.

In those circumstances where an attorney is interacting with an unrepresented party the Rules also allow the lawyer a broaderopportunity for communication. Under the Code, the attorney was prohibited from communicating with an unrepresentedperson other than to encourage that person to obtain counsel. That made the process of representing the lender and closing aloan a difficult experience. The attorney could not represent the lender and interact with the borrower in any meaningful way,without going beyond the scope of the allowed communication. Under the Rules, the attorney is allowed a greater scope ofcommunication with an unrepresented person, as long as the attorney does not misrepresent who the attorney is representing.Rule 4.3. Where an attorney is representing only a lender, and the borrower is not represented, the attorney should considerwhether it would be appropriate to provide some form of written disclosure for the un-represented person(s) describing theattorney’s role.

OPINION TWO:

As a supplemental question, the attorney making the request asks whether the formation of a title and escrow company ownedand controlled by one or more members of the firm would alter the impact of the Rules of Conduct as they apply torepresenting lenders and borrowers in real estate closings. To the extent the title and escrow company was owned by attorneysand provided legal services, the attorneys are bound by the Rules in providing such services, and the organization of a businessseparate from a law firm does not insulate the attorneys or lessen the attorneys’ obligations under the applicable provisions ofthe Rules.

An attorney may provide law-related services outside the practice of law. The applicable Rule is Rule 5.7 which sets out theresponsibility of an attorney providing law-related services. A law related service is a service that may be performed inconjunction with and in substance are related to the provision of legal services, and which are not prohibited as unauthorizedpractice of law when provided by a non-lawyer. Rule 5.7(b).

The Committee is of the opinion that the closing of loans, including specifically the preparation of legal documents related tothe acquisition and financing of real estate and the issuing of title reports or title insurance commitments signed by an attorneyon behalf of a the title company (where the effect and purpose is to satisfy the requirements that the title to the property bemarketable) generally would not fit the last part of the definition of law related services as those services constitute the practiceof law. A non-lawyer would not be allowed to perform either of those services without the supervision of an attorney whowould be responsible for the person’s conduct. The Committee notes that the issuing of title insurance policies is listed as alaw related business in the comments to Rule 5.7 and acknowledges that employees of title insurance companies may be 1 Guidelines for Disclosure

The attorney will be representing two parties. The attorney owes each party an equal duty of loyalty and maintaining confidentiality of the informationprovided by each client.

If either party provides information to the attorney that cannot be disclosed to the other party, then an irreconcilable conflict arises and the attorney mustwithdraw.

Such disputes may include differences as to the significance of title issues, differences as to loan conditions.

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licensed to issue title insurance policies. The Committee is of the opinion that the process of searching the title anddetermining which matters constitute encumbrances on the title to the property constitutes the practice of law.

CONCLUSION:

For the reasons set forth above the Committee now concludes that an attorney may allow for the representation of the lenderand the borrower/buyer when the attorney reasonably believes that (a) the representation of two parties in the same transactionwill not adversely affect the relationship with either client; and, (b) that the attorney’s judgment will not be materially limitedby responsibilities to either client or to a third party; and, finally each client agrees to the dual representation after consultation.The consultation must be meaningful in terms of timing by occurring sufficiently before the closing to allow either client toobtain separate representation if desired. The consultation must also include a discussion of the implications of the commonrepresentation and the risks and benefits of the common representation.

In responding to the related question, the Committee also concludes that an attorney or a law firm may form a title and escrowcompany to provide title and closing services, but because those services are law related services, the Rules of Conduct applyto the attorneys working in or for the title and escrow company.

ETHICS OPINION 2009-1 “Metadata” refers to electronically stored information about electronic documents.

Metadata often is included in files that are stored electronically. It may be apparent on the face of an electronic document, or may be hidden. Some metadata may be innocuous and unimportant, revealing basic information about dates an electronic file was created and edited. On the other hand, however, sensitive and confidential information, including comments reflecting attorney-client communications and tracked changes revealing work product, may also be contained in metadata embedded in electronic documents. When documents are transmitted and received electronically, tools may be available that enable the recipient to search for hidden metadata.

In this opinion, the Vermont Bar Association Professional Responsibility Section

concludes that the Vermont Rules of Professional Conduct (“VRPC”) do not compel a specific answer to the question whether a lawyer can search for metadata within an electronic document prepared by and received from opposing counsel. The Section further concludes that a lawyer who receives an electronic document from opposing counsel that contains inadvertently disclosed, privileged and confidential metadata must notify the sending lawyer, with the question whether the receiving lawyer can use this information being decided by a court of competent jurisdiction. With respect to discovery practice in the litigation context, the Section concludes that, with limited exceptions relating to privileged matters, lawyers are obligated to disclose all responsive information including metadata to opposing counsel, and nothing prohibits the recipient from searching for electronic information about the history of the document or file. Questions Presented:

The Vermont Bar Association Board of Managers has posed a series of questions to the Professional Responsibility Section about metadata.

The Board first inquires as follows about situations where a lawyer receives an electronic file from opposing counsel: (a) Can the receiving lawyer use tools in the program that created the file to mine1 for metadata?; (b) Can the receiving lawyer use more specialized tools to mine for metadata?; (c) Can the receiving lawyer engage the “track changes” function to review the history of edits made to the document; (d) Is the receiving lawyer’s responsibility different if the sending lawyer has inadvertently left the “track changes” function engaged, so that the entire history of changes to the document are exposed without any action being taken by the receiving lawyer.

The Board also inquires about disclosure of and searching for metadata during discovery in the litigation context, including whether (a) in the absence of a court order addressing discovery issues relating to metadata, lawyers or parties can mine for metadata in documents received from the opposing party during discovery; and (b) whether it is permissible for a party to remove metadata from documents before disclosing them during discovery.

1 The Section notes that the term “mine” appears to be a pejorative characterization of the use of electronic tools to analyze electronic documents. Throughout this Opinion, the phrase “search” is used in place of the phrase “mine,” because it characterizes the search for embedded metadata in a more neutral manner.

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Analysis

The questions presented by the VBA Board of Governors pose a number of inquiries. First, does a lawyer who sends electronic documents to opposing counsel have a duty to exercise reasonable care to avoid disclosing confidential metadata? Second, can a lawyer who receives electronic documents from opposing counsel search those documents for metadata? Third, what steps should be taken by a lawyer who becomes aware that electronic documents received from opposing counsel contain metadata? These questions have been the subject of a growing body of ethics opinions issued by the American Bar Association and various State Bar Associations. This opinion now summarizes the conclusions of these opinions and expresses its view on each. Potentially Applicable Provisions of the Vermont Rules of Professional Conduct As discussed in detail below, no provisions of the VRPC speak directly to the questions presented in this Opinion, although recently adopted VRPC 4.4(b), which becomes effective September 1, 2009, does address the obligation of a lawyer who receives inadvertently disclosed documents. The following provisions of the Rules, reprinted below in the form in effect in Vermont as of September 1, 2009, have formed the legal bases for Ethics Opinions issued by other Bar Associations reaching contradictory conclusions about the questions presented.

VRPC 1.1 Competence: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. VRPC 1.3 Diligence: A lawyer shall act with reasonable diligence . . . in representing a client. VRPC 1.6(a) Confidentiality of Information: A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent . . . . VRPC 3.4 Fairness to Opposing Party and Counsel A lawyer shall not: (a) unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act; (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law; (c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;

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(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party; . . . . or (f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1) the person is a relative or an employee or other agent of a client; and (2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information. VRPC 4.4 Respect for Rights of Third Persons: (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, or use methods of obtaining evidence that violate the legal rights of such a person. (b) A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.

VRPC 8.4 Misconduct: It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) engage in a “serious crime,” defined as illegal conduct involving any felony or involving any lesser crime a necessary element of which is interference with the administration of justice, false swearing, intentional misrepresentation, fraud, deceit, bribery, extortion, misappropriation, theft, or an attempt or a conspiracy or solicitation of another to commit a “serious crime”; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice . . . .

Duty of Sending Lawyer The Bar Associations that have examined the duty of the sending lawyer with respect to metadata have been virtually unanimous in concluding that lawyers who send documents in electronic form to opposing counsel have a duty to exercise reasonable care to ensure that metadata containing confidential information protected by the attorney client privilege and the work product doctrine is not disclosed during the transmission process. See Alabama Ethics Op. RO 2007-02; Arizona Ethics Op. 07-03; Colorado Ethics Op. 119 (2008); DC Ethics Op. 341 (2007); Florida Ethics Op. 06-2; Maryland Ethics Op. 2007-09; New Hampshire Ethics Op. 2008-2009/4; New York City Lawyers Ass’n Ethics Op. No. 738 (2008); New York State Ethics Op. 782 (2004). A number of other ethics opinions note that a sending lawyer has tools available to prevent against the risk of disclosing client confidences when electronic documents are transmitted to opposing counsel, but do not affirmatively address the scope of the sending lawyer’s duty to take these steps. See Pennsylvania Formal Ethics Op. 2007-500; ABA Formal Ethics Op. 06-442.

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This Opinion agrees that, based upon the language of the VRPC, a lawyer has a duty to exercise reasonable care to ensure that confidential information protected by the attorney client privilege and the work product doctrine is not disclosed. This duty extends to all forms of information handled by an attorney, including documents transmitted to opposing counsel electronically that may contain metadata embedded in the electronic file. This duty has its roots in VRPC 1.1, which requires lawyers to provide competent representation; VRPC 1.3, which requires lawyers to exercise diligence; and VRPC 1.6, which requires lawyers to protect confidential client information. The Professional Responsibility Section notes that various tools are available to comply with this duty to exercise reasonable care, including programs to “scrub” metadata from electronic documents before they are dispatched, converting electronic documents to a read-only, PDF format before transmission, or insisting on transmission of sensitive documents only on paper. The steps that should be taken by the sending lawyer in specific instances depend on the circumstances, and are beyond the scope of this opinion. Duty of Receiving Lawyer The duty of the receiving lawyer is a matter that has been the subject of substantially more disagreement. In the following ethics opinions, various State Bar Ethics Committees have concluded that applicable rules of professional conduct prohibit a receiving lawyer from searching for metadata in documents that are received electronically. See Alabama Ethics Op. RO 2007-02; Arizona Ethics Op. 07-03; Florida Ethics Op. 06-2; New Hampshire Ethics Op. 2008-2009/4; New York City Lawyers Ass’n Ethics Op. No. 738 (2008); New York State Ethics Op. 782 (2004). The foundations for the conclusions reached in these Opinions are located in the rules of professional conduct protecting confidential information; prohibiting lawyers from engaging in conduct that is dishonest, deceitful, or prejudicial to the administration of justice; and requiring respect for the rights of others. Through various chains of inference, and based on Professional Conduct Rules drafted differently from the Rules in Vermont, these opinions conclude that a lawyer who searches for metadata is unjustifiably attempting to intrude on the confidential relationship between the opposing lawyer and client, which is conduct that is dishonest or deceitful, and prejudicial to administration of justice. On the other hand, a series of other ethics opinions reach the opposite conclusion, finding that the Rules of Professional Conduct do not contain any prohibition, whether express or implied, on searching electronic documents for embedded metadata, and that characterization of such searching as “deceitful,” “dishonest,” and “prejudicial” is not supported by the Rules. See Colorado Ethics Op. 119 (2008); DC Ethics Op. 341 (2007); Pennsylvania Formal Ethics Op. 2007-500; ABA Formal Ethics Op. 06-442. Reviewing the language of the Vermont Rules of Professional Conduct quoted above, the Vermont Bar Association Professional Responsibility Section finds nothing to compel the conclusion that a lawyer who receives an electronic file from opposing counsel would be ethically prohibited from reviewing that file using any available tools to expose the file’s

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content, including metadata.2 A rule prohibiting a search for metadata in the context of electronically transmitted documents would, in essence, represent a limit on the ability of a lawyer diligently and thoroughly to analyze material received from opposing counsel. None of the Rules in effect in Vermont either state or imply that lawyers must refrain from thoroughly reviewing documents and information received from opposing counsel, regardless of the medium is which the document is transmitted. The Rule where such an obligation would most likely be found -- VRPC 3.4 Fairness to Opposing Party and Counsel -- is wholly silent on this issue. Neither do VRPC 4.4 Respect for Rights of Third Persons, or VRPC 8.4 Misconduct, directly address this issue. On the other hand, there is a clear basis for an inference that thorough review of documents received from opposing counsel, including a search for and review of metadata included in electronically transmitted documents, is required by VRPC 1.1 Competence, and VRPC 1.3 Diligence.

The existence of metadata is an unavoidable aspect of rapidly changing technologies and information data processing tools. It is not within the scope of this Section’s authority to insert an obligation into the Vermont Rules of Professional Conduct that would prohibit a lawyer from thoroughly reviewing documents provided by opposing counsel, using whatever tools are available to the lawyer to conduct this review. Duty Imposed Upon Lawyer Who Learns Of Receipt Of Inadvertently Disclosed Privileged Information

Answering the question whether a lawyer can search for metadata does not, however, end the analysis. The more critical inquiry arguably is whether inadvertently disclosed confidential information, including metadata, can be used by the lawyer who receives it.

Whether inadvertent disclosure of privileged information constitutes a waiver of the

document’s privileged status is a question of substantive law. Different approaches have been taken by courts throughout the United States when addressing this issue, but research has not revealed any case law in Vermont addressing the impact of inadvertent disclosure of privileged documents.

Given that the attorney-client privilege is intended to protect the client, many courts have

chosen to protect the privilege when inadvertent disclosure occurs, focusing on whether the client intended the disclosure to occur and whether counsel had authority to disclose. See, e.g., Mendenhall v. Barber-Greene Co., 531 F. Supp. 951, 954-55 (N.D.Ill. 1982); Berg Elecs., Inc. v. Molex, Inc. , 875 F. Supp. 261, 263 (D. Del. 1995); Corey v. Norman, Hanson & DeTroy, 742 A.2d 933, 941 (Me. 1999). However, alternate approaches that are less protective of the attorney client privilege also have been adopted. One such approach provides that inadvertent disclosure destroys the privilege if the lawyer and client did not take adequate steps to protect confidentiality. See, e.g., Gray v. Bicknell, 86 F.3d 1472, 1483-84 (8th Cir. 1996). Effective September 19, 2008, the Federal Rules of Evidence were amended to add a variation of this position. Current Federal Rule of Evidence Rule 502(b) provides that, in Federal Court proceedings, inadvertent disclosure does not result in waiver of the attorney client privilege or

2 Given this conclusion, this Opinion does not separately analyze the four different mechanisms for locating metadata that are listed in the questions presented by the VBA Board of Governors.

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work product protection if reasonable steps to prevent disclosure were taken by the holder of the privilege or protection, and reasonable steps were promptly taken by the holder of the privilege or protection to respond to the inadvertent disclosure. Adoption of Rule 502 arguably overruled the holdings of previous Federal Court decisions, including International Digital Sys. Corp. v. Digital Equip. Corp., 120 F.R.D. 445, 449-50 (D. Mass. 1988), and Federal Dep. Ins. Corp.v. Singh, 140 F.R.D. 252, 253 (D. Me. 1992), which took the blanket position that inadvertent disclosure waives the privilege, because confidentiality had been lost. It is beyond the scope of this Ethics Opinion to address what analysis the Vermont Supreme Court should adopt on the question of inadvertent disclosure. However, the steps that lawyers should take upon learning that inadvertently disclosed privileged information has come into their possession is a matter that has been the subject of substantial discussion in the Ethics Opinions and is at the core of the inquiry posed by the VBA Board of Governors. Accordingly, this Opinion now turns to this issue. In 1992, the American Bar Association Committee on Ethics and Professional Responsibility issued Formal Opinion 92-368. This Opinion advised that a lawyer who receives materials which appear on their face to be privileged and clearly appear not to be intended for the receiving lawyer must not look at those materials, must contact the sending lawyer, and must follow the sending lawyer’s instructions relating to those materials. Substantial debate followed issuance of this Opinion, and the ABA Ethics Committee ultimately added Model Rule of Professional Conduct 4.4(b), which provides:

A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.

Pursuant to amendments to the Vermont Rules of Professional Conduct promulgated on

June 17, 2009, Rule 4.4(b) becomes effective in Vermont on September 1, 2009. As explained in its Comments, the purpose behind Rule 4.4(b) is to ensure that lawyers who inadvertently disclose privileged and confidential documents to opposing counsel can take protective measure in an effort to limit or eliminate damage to their client’s interests. The Comment continues by recognizing, however, that questions including whether additional remedies may be available to the sending lawyer, and whether inadvertent disclosure leads to waiver of the privilege, depend on substantive law and are beyond the scope of the Rules.3 With the adoption of Rule 4.4(b), Vermont lawyers are subject to the obligation to notify opposing counsel if they receive documents that they know or reasonably should know were inadvertently disclosed. Whether inadvertent disclosure results in waiver of the attorney client privilege or the work product protection, and whether the receiving lawyer can review and use the inadvertently disclosed information, remain issues of substantive law.

3 As a result of the amendment of Model Rule 4.4(b), including its clear requirements for the steps that must be taken when confidential documents are inadvertently disclosed, ABA Formal Opinion 05-437 withdrew Formal Opinion 92-368.

7

Litigation Context The inquiry posed by the VBA Board of Governors relating to the litigation context poses somewhat different considerations. While it is beyond the scope of this Opinion to address the discovery rights and obligations of parties in the litigation context, the Section makes the following observations. The provisions of the VRPC that are cited above, including the requirements of acting competently, diligently, and in a manner that protects client confidences and respects the rights of third parties, apply to all of an attorney’s legal related activities, including in the litigation context. Basic rules of diligence, competence, and prudence caution a lawyer who is preparing to disclose documents during discovery thoroughly to review those documents in order, among other things, to ensure that communications protected by the attorney client privilege and the work product doctrine are not being disclosed. This rule applies with equal force to electronic discovery, where basic rules of competence now require lawyers to be aware that discoverable information may be included in electronic documents, and that privileged and confidential information may be embedded in electronic files, including in hidden metadata.

Standard practice and procedural rules in litigation matters allow lawyers to withhold documents containing privileged and confidential communications when serving discovery responses, and those rules apply with equal force to production of electronic documents. Where such materials are being withheld from discovery disclosures, applicable rules may require preparation and service of a privilege log, which also should list any privileged and confidential electronic documents that are being withheld from production. See, e.g., Fed. R. Civ. P. 26(b)(5)(A) (requiring party that withholds otherwise discoverable information based on privilege or work product claim to make the claim expressly and describe the documents being withheld from production).

Except to this extent, the Professional Responsibility Section is aware of no authority or

support for the proposition that a lawyer can redact, remove, or withhold metadata from electronic client documents that are being disclosed during discovery. Neither is the Committee aware of any restriction on the ability of the receiving lawyer or party fully to analyze electronic documents received during discovery, including use of any available tools to search for metadata embedded within those electronic files.4

4 It should be noted, however, that recent amendments to the Federal Rules of Civil Procedure codify a procedure for use in Federal Court when inadvertent disclosures occur. Pursuant to Fed. R. Civ. P. 26(b)(5)(B), when a party inadvertently discloses materials that it believes are privileged or work product and provides notices to opposing counsel, the recipient has the duty, among other things, promptly to return, destroy, or sequester the information, and not to use or disclose the information until the privilege or work product claim has been resolved. These recent amendments to Rule 26 provide clear direction to lawyers confronted with inadvertent disclosure issues, and the Professional Responsibility Section believes it could be useful for the Vermont Supreme Court to consider the possibility of making similar amendments to the Vermont Rules of Civil Procedure.

THERE MUST BE FIFTY WAYS TO . . .

. . . STAY ON THE GOOD SIDE OF COURT CLERKS!

Following is a listing of 50 suggestions court staffs respectfully request that you

consider in your trial practice.

1. Correct docket numbers on all pleadings and cover letters.

2. Notify the court as soon as possible if the amount of time set aside for a hearing is too

much time, or too little, or has changed from the original request.

3. If you are replacing an attorney who has entered his or her appearance, a notice of

withdrawal needs to be filed with your notice of appearance, or a substitution of counsel

needs to be filed. Clearly specify if you are appearing as co-counsel in a case.

4. Avoid 11th

hour requests for continuances, particularly when the hearing has been

noticed far in advance.

5. Be aware that files are typically given to the judge the day before a scheduled hearing.

If you need to review a file, request it before that date.

6. Bring your calendars with you whenever you have a hearing.

7. Maintain professional and ethical behavior in the courtroom and at the counter at all

times.

8. Submit proposed orders with stipulations to dismiss, motions to dismiss, and motions

to escrow rent.

9. Be specific in terms of what you are requesting in a motion

10. Promptly notify the court and promptly file the stipulation when a case settles.

11. Notify the court in advance of the hearing date if you have not accomplished service

of the pertinent documents.

12. Do not wait until the day of, or the day before, a hearing to file a slew of voluntary

dismissals.

13. Be mindful of the non-military affidavit requirements in V.R.C.P. 55(b)(5) when

filing a motion for default judgment.

14. If you want copies of pleadings, please provide them and we will conform stamp

them for you. Photocopying charges are otherwise 25 cents per page.

15. If mail to the superior court is intended for the small claims court, indicate small

claims court on the envelope.

16. Prepare exhibit lists with concise descriptions of the exhibits and the correct spelling

of witnesses’ names in advance of the hearing.

17. Pre-mark exhibits in advance of the hearing, with a copy for opposing counsel.

18. Be available at the time of your scheduled telephone conference.

19. Do not indicate the situation is an emergency in the caption unless it is truly an

emergency.

20. Use only the most recent (Rev. 7/12 SML) small claims complaint forms. Do not

submit your own version of any of the small claims forms.

21. Small claims default affidavits must be signed by the party and not by the attorney.

The amounts due on the affidavit need to match what is in the file.

22. If you plan to negotiate with opposing counsel or to meet with your client relative to

a hearing, meet with them in advance of the scheduled hearing time.

23. If you would like copies of anything returned to you, please include a stamped, self-

addressed envelope with your request.

24. Apply for and obtain the pro hac vice certification before you file a motion for

another attorney to appear pro hac vice.

25. Cite the statute or rule on which you are relying when filing a motion.

26. Verify with a court what that court’s policy is with respect to faxes or e-mails before

faxing or e-mailing a document to the court.

27. Refer to V.R.P.P. 17 before filing a list of interested persons to ascertain who should

be included in the list; when in doubt consult the probate registrar.

28. Verify the current and correct mailing addresses, including zip codes, of interested

parties before filing a list of interested persons.

29. Include the VINS number, make and model of any vehicles and the book and page

recording information for any deeds listed in a probate inventory.

30. Be sure to have signatures notarized where required on many of the probate forms.

31. Attempt to obtain all necessary consents to a probate court action before requesting a

hearing on the action.

32. It is preferable to circulate a single form to obtain signatures of multiple fiduciaries,

rather than filing multiple forms with single signatures.

33. Submit multiple consents/releases for the same estate or guardianship in one mailing

instead of in several mailings.

34. In general, any expenses incurred before the date of death are debts of the estate and

any debts incurred after the date of death are expenses of administration for purposes of

the accounting. Even if consents are obtained for an accounting, a hearing may be held

regarding the reasonableness of fiduciaries’ or attorneys’ fees in an accounting.

35. Verify with your probate court what consents are required before a will can be

allowed without a hearing.

36. Know the distinction and different requirements for notices of dismissal versus

motions to dismiss.

37. Separate new motions from responses to other motions; do not combine into one

pleading.

38. Remember that a default judgment has to have been served on the defendant before a

post-judgment motion should be filed.

39. Please paper clip checks and pleadings, instead of stapling them together.

40. Include copies of pleadings for each file where there are consolidated cases.

41. Use the court’s caption and not your internal office caption when filing a document.

42. Adhere to the deadlines in the 16.3 stipulations. File requests to extend deadlines

prior to the deadlines.

43. File returns of service and trustee’s disclosures upon your receipt of them.

44. If you file a motion with a response time that falls after a noticed hearing, verify with

opposing counsel if he or she is able to file a response before the hearing date. Notify the

court if the filing will affect what has been scheduled.

45. Request other party’s position before filing motions to continue, appear by phone,

amend conditions, or extend deadlines. Report other party’s position when filing your

motion.

46. If you receive a copy bill from the court, please pay it promptly.

47. Verify and submit the correct filing fees for counterclaims, cross claims, third party

complaints and post-judgment motions.

48. Let us know your vacation schedules as far in advance of the vacation dates as

possible.

49. Stuffing too much in a letter envelope can cause the documents to get stuck to the

envelope flap. Use a larger envelope when appropriate.

50. Last but definitely not least, be on time and be prepared!

Judge Crawford’s unwritten rules of effective courtroom lawyers: motion practice. I. Before you go to court: papers and filings Rule 1. Short, simple, direct. It is easy for lawyers to forget about the sea of paper that surges across a judge’s desk every day. Most of it is routine. Some of it is difficult. The lawyer who is concise, direct, and clearly identifies the legal principle will get attention. Over time, the judge will come to recognize her as reliable. This is huge. Rule 2. Handle the facts fairly It drives judges crazy when the proponent of a motion leaves out the one, uncomfortable fact which the opponent, obviously, brings up. You want your motion to cover all issues, including the hard one which you wish wasn’t in the case. There should be record evidence for every factual assertion you make. And cite to it. Handle the facts as carefully at the trial court s/j level as you do on appeal. Don’t hesitate to provide the important exhibits -- or excerpts -- with your memo. But don’t attach the 85 page master loan agreement just because the parties signed it. Only lean meat in this stew; no fat. Rule 3. Be thoughtful with your use of authority Don’t waste time on the obvious. The standard applicable to summary judgment is well understood. It would be silly to cite any thing more than the rule. When you reach the heart of the issue, bring everything to the table: a string cite is an often-overlooked resource; a discussion in a treatise or a Restatement provision is very powerful; and don’t overlook the obvious -- get the statute or rule which applies into your first sentence even if you think everyone should know. Judges really want to get the law right and need your help. They particularly do not want to miss a recent decision or a statutory amendment. What the judge really wants to know are the names of the Vermont or N.H. Supreme Court cases which bear in any way on the issue. Avoid three pages of discussion of the facts and law from other state’s cases. No judge is going to want to read about how S. Carolina handles an issue. New York and California are almost always off on a tangent of their own. New England judges will listen to what is happening in other New England states. And if there is a national split on a common law issue, they will want to know where the majority has come down. Rule 4. Take the high road

Judges have little patience for the two-page accusatory letters lawyers exchange when they get angry. Everyone gets angry, but these letters are always useless. And I wrote plenty of them in my day. Your reminder letter about overdue or incomplete discovery responses should be one which you would not mind receiving yourself, not an occasion for heaping snide abuse on your witless adversary. Remember the newspaper rule: what you send the other side, especially email, should be stuff which you would not mind seeing in the newspaper next morning. Rule 5. Ask for the time you need If you need time because you have a witness, let the court clerk know about it. She will make time for you. You cannot do this every day, but if you develop credibility, most courts will try to schedule time appropriately. Rule 6. Treat the court staff as you would your mother It is truly amazing how many lawyers are rude and dismissive to court staff. Judges hear about this -- usually 5 minutes after it happens. Since the judge is usually fond of his staff-- and counts on them --- it damages your reputation severely if you treat staff on the phone or at the counter in a brusque or condescending way. II. Now the fun stuff -- the rules when you show up at court Rule 7. Always say your name when you stand up to speak. Do this even if you saw the judge yesterday and think she remembers. She might not. It is embarrassing for me to ask someone their name when I should know it. Always say who you are and who you represent. Rule 8. Bring your client To the extent possible, bring the client. Bring an adjuster. Bring someone from the real world. The judge will notice and pay attention. It humanizes your cause and gives you real credibility. Obviously there are routine status conferences which do not justify bringing the vice-president from Albuquerque. But lawyers routinely overlook the power of bringing the principals to court. When only one side shows up, that side has a real advantage. Rule 9. Clothing counts. You know the rules of business dress. Follow them religiously. Some judges care about this a lot; others don’t, but none of us like to see LL Bean boots instead of real shoes. It is interpreted as mildly disrespectful. Rule 10. Who goes first?

Going first is a big advantage. The first thing people hear stays with them. You can set the agenda in very helpful ways. And the person who goes first usually gets a chance to finish with rebuttal. The last thing people hear also stays with them. Pity the guy in the middle of the sandwich. So, if it is your motion, say so. A more experienced lawyer will often try to jump in ahead of you and start the discussion even though he is not the moving party. Rule 11. Take the judge by the hand. Never assume that the judge is familiar with your papers. It can be a bit chaotic back there behind the curtain and the most well-intentioned judge may have only glanced at the memo. So, start at the beginning and walk through the issue. Judges are quick learners and will let you know when they understand the problem. You do not want to put the judge in the position of acknowledging publicly that he or she has not had time to study the file. Rule 12. Don’t interrupt the court This is a major mistake by new and experienced lawyers alike. Just because the judge doesn’t bark at you, doesn’t mean he isn’t annoyed. The judge is always playing catch-up. If she has something to say, hear her out. You need to know what she doesn’t understand. If she is jousting with you a little and trying out a contrary idea, roll with it. Don’t jump in with an interruption. Let her talk. The lawyers will talk for 80 - 90 percent of the hearing anyway -- it is crucial to try to understand the judge’s initial take on your issue. Rule 13. Don’t let the other side interrupt you -- ever. We all know not to interrupt our adversaries. That is a rookie mistake -- or the tactic of a wily and seasoned attorney. When it is your turn to talk, you cannot allow the other side to interrupt and take over the conversation. “Excuse me, your honor, I haven’t finished my remarks” is enough. A lot of nice men and women allow more senior lawyers to interrupt them out of courtesy. When it is your turn, hold on to it. This is no time to be shy. Rule 14. Admit the unavoidable, with grace and good humor. Judges will love you forever if you admit an unfortunate fact up front and frankly without any fancy footwork. He is going to figure it out sooner or later so just admit that you have a large spear sticking out of your side with a confident smile and move the discussion to where you think it belongs. Rule 15. Can’t get no dissatisfaction.

Never, never show your dissatisfaction with a ruling. Judges hate the eyeball rolling, sighing, shrugging, red-faced thing. This is one case in a long career for both of you. The case is never personal for the judge unless you make it that way. Don’t announce your intention of appealing either. Even if it chokes you, thank the judge for paying attention to the matter. A very professional criminal defense attorney in Burlington often says, “Judge, I understand your ruling.” That concedes nothing and suggests that there is room for reasonable people to disagree. Rule 16. Be thoughtful about your use of anger Anger is a volatile spice. A little can be appropriate, even essential, but you do not want to be the guy who is angry all the time. Pick your battles and keep it under control. When a lawyer with strong credibility and a sunny disposition gets angry, the judge will listen carefully. Rule 17. What if you just won? Always bring a proposed order to court. You might win this thing. Draft it in a neutral way so that the judge might actually sign it. Get it signed then and there. Tell her you will wait for a stamped copy at the clerk’s office. If you have to mail it in, do it that afternoon -- before your adversary offers a competing version. Rule 18. What if you happen to be really smart? The most effective lawyers are those few people who are the smartest, most informed people in the room -- and who manage to keep this fact to themselves. You want nothing to come between the judge and the brute strength of your argument. If your presentation is a lot about “you,” judges -- like all people on the planet -- get bored and stop listening. A smart, arrogant lawyer will still do fine at the end of the day -- but why add this handicap to your work? Rule 19. Relationships Over time the courthouse in a small state is about relationships. The relationship you want is to be seen as reliable and a person who does what she says she will do. I love the lawyers who have what I call “grit.” A lot of people ask for additional time to do depositions. I love the guys who actually do them. A lot of people say they want to try their case. I love the guys who actually show up -- even if they lose. You can get this relationship with any number of personal styles: friendly, strictly business, smooth and confident, awkward and determined -- the judges see all kinds and, unlike juries, are highly forgiving about personal style. Mainly they want reliable information from you so they don’t get reversed on an avoidable mistake.

Trial practice Rule 1. Jury draw Any plan is better than none. Some plans are better than others. A good plan is to find out whether there is any basis for challenges for cause based on jurors who know the parties or lawyers. Present your case a little. And draw out any opinions about the principal issues in the case. A tall order. A plan which can work (or not) is to invite negative and angry statements about plaintiffs, their lawyers, and, inevitably, the McDonalds case. If you start down this perilous road – and many smart people feel you must – make sure you do not attempt to change any minds. You will not succeed. A plan which usually fails is the genial, folksy attempt to ingratiate yourself with the jurors. If there is one thing jurors can sniff out, it is insincerity. At best you will leave a faint memory that you were funny and charming. Save that for your family. At worst – and more likely – you will be remembered as a presumptuous fraud. If there is one thing jurors appreciate, it is economy of expression. Rule 2. Direct exam Learn to ask open-ended questions. Your witness is more important than you. Prompt and guide, but let your client do the talking. Most lawyers, including very experienced lawyers, are incapable of this. Rule 3. Cross exam Only ask “yes” or “no” questions. The questions should be sufficiently bland that the witness will be seen as devious and uncooperative if he breaks the rules by insisting on giving a narrative response. Not “Do you agree that you were an unobservant, negligent fool when you stepped on the obviously icy sidewalk?” More like: “Did you know it had snowed all day?” “Did you see the snow in the parking lot when you left your car?”…. Jurors enjoy Sudoku as much as anyone else – they will add up the inferences and draw the conclusions for you. Rule 4. Rude adversaries. The jury will expect you to stick up for your client if she is treated unfairly on the stand. (Your client will expect it too.) Object firmly and ask for enough time to explain your objection.

Rule 5. Openings and closings. Short. It is inconceivable that jurors are listening with interest after 45 minutes. What case is so complicated that you cannot explain it to your spouse or law partner in five minutes? Have a plan. Write it out beforehand (even if you leave the draft behind) and try it out on someone you love. It really shows when a lawyer, usually exhausted after a few days of trial, gets up and wings it. Use the exhibits. Jurors have come to expect a certain amount of flash and polish with the overheads and projected displays. Sadly, Atticus Finch does not work here any more. The days are gone when the sheer force of your eloquence is enough. “Show and tell” has become the norm. Rule 6. Jury instructions Get your proposed instructions in early – a week before trial is reasonable. It focuses you on the elements of your case and will get read. Most judges start early as well since the charge is their principal responsibility at trial. Skip the boiler plate and provide a few pages of proposed instructions on the elements of the claim. Jurors take in little about the charge when it is read, but they examine the charge closely during deliberations. Do not neglect the verdict form either. Rule 7. Know that you are watched. With 12 jurors plus alternates, someone will catch sight of you and your client from the moment you approach the courthouse until you leave the parking lot at the end of the day. Jurors are very curious about you, not always in a friendly way. After all the work of preparation, this is no time to be rude to your adversary or, heaven forbid, to court staff. If you can’t do “friendly and relaxed,” then at least do “somber and professional.” Rule 8. Confidence. Finally, if there is one thing that jurors respond favorably to, it is confidence. They are at sea in a strange setting. They are looking for leadership and direction. They will follow a person who projects confidence in herself and her cause. 12/17/11 G. Crawford

Guidelines of Professional Courtesy

In fulfilling his or her primary duty to the client, a lawyer must be ever conscious of the broader duty to the legal system. A lawyer should act with candor, diligence and utmost respect. A lawyer should act with courtesy and cooperation, which are necessary for the efficient administration of our system of laws. A lawyer should act with personal dignity and professional integrity. Lawyers should treat each other, their clients, the opposing parties, the courts, and members of the public with courtesy and civility and conduct themselves in a professional manner at all times. A client has no right to demand that counsel abuse the opposite party of indulge in offensive conduct. A lawyer shall always treat adverse witnesses and parties with fairness and due consideration. In adversary proceedings, clients are litigants and though ill feelings may exist between clients, such ill feelings should not influence a lawyer's conduct, attitude, or demeanor towards opposing lawyers. A lawyer should not harass opposing counsel or counsel's clients. Lawyers should be punctual in communications with others and in honoring scheduled appearances. Neglect and tardiness are demeaning to fellow lawyers and to the legal system. If a fellow attorney makes a just request for cooperation, or seeks scheduling accommodation, a lawyer shall not arbitrarily or unreasonably withhold consent. Effective advocacy does not require antagonistic or obnoxious behavior. Lawyers should adhere to the higher standard of conduct which judges, fellow attorneys, clients, and the public may rightfully expect.

Adopted by the Vermont Bar Association Membership, March 11, 1989