The Vermont Bar Association held its Mid-Year Meeting at the Equinox Hotel in Manchester, Vermont on March 28, 2025. Sheehey litigation partner Kevin Lumpkin was invited to present a one-hour session entitled “Hot Topics in Legal Ethics” at the meeting. Kevin has extensive experience with legal ethics, including serving as Special Disciplinary Counsel and Special Screening Counsel for the Professional Responsibility Program as well as representing attorneys accused of ethical violations. Kevin also does legal malpractice defense work.
At the meeting, Kevin began with an overview of the complaint process. Kevin explained that all complaints against attorneys first go to screening counsel to be screened for merit before being referred to disciplinary counsel. The screening counsel stage presents a great opportunity to advocate for the accused attorney and attempt to persuade screening counsel to screen out the complaint. Kevin then explained the details and nuances of the disciplinary counsel process, including the options for negotiating resolution before a disciplinary petition is filed.
Kevin then discussed the topic of whether to carbon copy (CC) a client in communications with opposing counsel. Most authorities hold that where a lawyer chooses to CC their client on communication with opposing counsel, that lawyer gives implied consent for the opposing counsel to “reply all.” Kevin cautioned that the lawyer choosing to CC their client generally cannot criticize their opposing counsel for replying all. Kevin advised that the better practice is to forward an already-sent email to one’s client.
Next, Kevin discussed best practices for speaking with prospective clients. Kevin walked through Rule of Professional Conduct 1.18, discussing when it attaches, duties of confidentiality to prospective clients, and the process for navigating conflicts with prospective clients. Kevin advised that the easiest way to avoid triggering Rule 1.18 is to use legal assistants and paralegals to do matter intake, directing them to obtain enough information to conduct a conflict check before a lawyer speaks with the client.
Finally, Kevin discussed the rule regarding keeping client confidences, examining its strict language and interpretation in contrast with how attorneys often discuss cases they are working on. Kevin cautioned that although it is permissible to discuss information related to client representation without identifying the client, it is important to be aware that the more details one discloses, the easier it is to identify the client. Kevin discussed a recent case from another jurisdiction where a lawyer was disciplined for posting about a hearing on Facebook because he did not do enough to anonymize his client.
