Monday Morning Answers #170

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

Honor Roll

  • Karen Allen
  • Evan BarquistMontroll, Backus & Oettinger
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, John Marshall Law School
  • Honorable John M. Conroy, United States Magistrate Judge, District of Vermont
  • Erin GilmoreRyan Smith & Carbine
  • Laura Gorsky
  • Bob Grundstein
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy, JB Kennedy Associates, Mother of the Blogger
  • Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
  • Aileen LachsMickenburg, Dunn, Lachs & Smith
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Lon McClintockMcClintock Law Offices
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Hal Miller, First American
  • Herb Ogden, Ogden Law Offices
  • Thomas Wilkinson, Jr., Cozen O’Connor
  • Peter Young, General Counsel, Vermont Rail System

Answers

Question 1

How long must a lawyer keep records of funds that belonged to clients or third persons and that the lawyer held in connection with a representation?

  • A.   6 years from the termination of the representation.  V.R.Pr.C. 1.15(a)(1)
  • B.   The rules are silent on this issue.

Question 2

The following are exceptions to a particular rule.

  • to establish a claim or defense in a controversy between the lawyer and client;
  • to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved; or,
  • to respond to allegations in any proceeding concerning the lawyer’s representation of the client.

Generally, what does the rule prohibit?

Disclosing information relating to the representation of a client.  The exceptions listed appear in Rule 1.6(c)(3) and, collectively, are often referre to as “the self-defense exception.” 

Question 3

Lawyer represents Client.   Lawyer calls Witness to testify.   Witness completed his testimony and the court recessed for the day.  Preparing for the next day of trial, Lawyer comes to realize that Witness offered material evidence that was false.

Which is most accurate?

  • A.   Lawyer must take reasonable remedial measuresV.R.Pr.C. 3.3(a)(3)
  • B.   Lawyer need not correct the record since it was Witness and not Client.
  • C.   Lawyer’s duties are different depending on whether the case is criminal or civil.
  • D.  Lawyer must withdraw.

Comments 10 and 11 are instructive.

Question 4

Lawyer called me with an inquiry.  I listened, then said, “it’s okay as long as it does not imply a connection with a government agency or public or charitable legal services organization and is not otherwise false or misleading.”

What did Lawyer call to discuss?

  • A.    Using a trade name as a firm name.  V.R.Pr.C. 7.5(a)
  • B.    Organizing a pro bono clinic staffed by volunteer lawyers.
  • C.    Using an undercover investigator.
  • D.   Conflicts of interest that arise when moving to & from government practice.

Question 5

As readers know, I’m a huge proponent of attorney well-being and finding interests outside the law.  For me, I love running.

Earlier this week, an assistant public defender had to undergo emergency surgery after suffering a serious injury while taking a selfie as he participated in a famous “running” event.  Here’s what one of his co-workers said to the press:

  • “As an office we encourage our employees to pursue outside interests and explore their passions.  For many it’s traveling, and we think such pursuits are critical to the general wellness of our entire . We are relieved the incident was not more serious and we are looking forward to [the lawyer’s] return.”

Name the “running” event that the lawyer was participating in when he was injured.

The Running of the Bulls, which occurs on the final day of Pamplona’s San Fermin Festival. I blogged about the incident here.  The clip from The Breakfast Club summarizes my feelings on running in the event.

Professor Alberto Bernabe, a regular member of the Honor Roll, has actually attended the event. He sent me this picture of the ring.

BF2-2004

 

Five for Friday #170

Welcome to Friday!

I’m in a bit of a blogging hiatus, so I’m ditching the normal intro.  However, two matters deserve mention.

First, today is an important anniversary.  57 years ago tonight, a band played its first concert.  As noted by udiscovermusic, here’s how London’s Jazz News previewed the event:

  • “Mick Jagger, R&B vocalist, is taking an R&B group into the Marquee tomorrow night, while Blues Incorporated do their Jazz Club gig. Called The Rollin’ Stones. The line-up is: Mick Jagger (vocals), Keith Richards & Elmo Lewis (guitars), Dick Taylor (bass), Ian Stewart (piano), & Mick Avory (drums).”

I mention this because no blog I’ve posted generated more controversy than this one in which I expressed my preference for the Stones over The Beatles.

Second, an even more important anniversary took place two days ago: the anniversary of my mom’s birth!  She’s a regular member of the Five for Friday Honor Roll.  My blog about her life is here.  Happy birthday Mom!

PS:  my mom’s sons will officially mark her birthday at brunch this Sunday morning.  Some might call us too lazy to have gotten our act together in time for her birthday.  However, others might long for friends & family who, like Patrick and I, stretch others’ birthdays into week-long celebrations.

Onto the quiz!

the-quiz

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception – but one that is loosely enforced – #5 (“loosely” = “aspirational”)
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

How long must a lawyer keep records of funds that belonged to clients or third persons and that the lawyer held in connection with a representation?

  • A.   6 years from the termination of the representation.
  • B.   The rules are silent on this issue.

Question 2

The following are exceptions to a particular rule.

  • to establish a claim or defense in a controversy between the lawyer and client;
  • to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved; or,
  • to respond to allegations in any proceeding concerning the lawyer’s representation of the client.

Generally, what does the rule prohibit?

Question 3

Lawyer represents Client.   Lawyer calls Witness to testify.   Witness completed his testimony and the court recessed for the day.  Preparing for the next day of trial, Lawyer comes to realize that Witness offered material evidence that was false.

Which is most accurate?

  • A.   Lawyer must take reasonable remedial measures.
  • B.   Lawyer need not correct the record since it was Witness and not Client.
  • C.   Lawyer’s duties are different depending on whether the case is criminal or civil.
  • D.  Lawyer must withdraw.

Question 4

Lawyer called me with an inquiry.  I listened, then said, “it’s okay as long as it does not imply a connection with a government agency or public or charitable legal services organization and is not otherwise false or misleading.”

What did Lawyer call to discuss?

  • A.    Using a trade name as a firm name.
  • B.    Organizing a pro bono clinic staffed by volunteer lawyers.
  • C.    Using an undercover investigator.
  • D.   Conflicts of interest that arise when moving to & from government practice.

Question 5

As readers know, I’m a huge proponent of attorney well-being and finding interests outside the law.  For me, I love running.

Earlier this week, an assistant public defender had to undergo emergency surgery after suffering a serious injury while taking a selfie as he participated in a famous “running” event.  Here’s what one of his co-workers said to the press:

  • “As an office we encourage our employees to pursue outside interests and explore their passions.  For many it’s traveling, and we think such pursuits are critical to the general wellness of our entire . We are relieved the incident was not more serious and we are looking forward to [the lawyer’s] return.”

Name the “running” event that the lawyer was participating in when he was injured.

 

 

Careful with your wellness!

Damon Silver is an attorney in the Santa Clara County Public Defender’s Office. A few days ago, The San Jose Mercury News ran an article that included this quote from Silver:

  • “As an office we encourage our employees to pursue outside interests and explore their passions. For many it’s traveling, and we think such pursuits are critical to the general wellness of our entire PDO family.”

Great stuff! I completely agree and applaud the office’s approach to well-being.

Alas, there’s more to the story, and it’s kind of scary.

The Mercury News wasn’t running an article on attorney wellness.  It was reporting on the assistant public defender who was gored while taking a selfie as he participated in  Pamplona’s famed Running of the Bulls.  The Associated Press, the ABA Journal, and Above the Law also covered the story.  Fortunately, the lawyer survived and is expected to make a full recovery.

I’m all for well-being and passions outside the law.  But, let’s be careful out there.

P.S.  If Mr. Vernon taught me anything, it’s this:

 

 

 

Well-Being Is An Aspect Of Competence

Two years ago, the National Task Force on Lawyer Well Being published The Path to Lawyer Well-Being: Practical Recommendations for Positive ChangeThe report issued in response to two studies that revealed alarming statistics with respect to the well-being of the legal profession.

In their letter introducing the report, the Task Force’s co-chairs noted the report’s “five central themes:

  1. identifying stakeholders and the role each of us can play in reducing the level of toxicity in our profession,
  2. eliminating the stigma associated with helpseeking behaviors,
  3. emphasizing that well-being is an indispensable part of a lawyer’s duty of competence,
  4. educating lawyers, judges, and law students on lawyer well-being issues, and
  5. taking small, incremental steps to change how law is practiced and how lawyers are regulated to instill greater well-being in the profession.”

Among other proposals aimed at furthering the third (bolded) theme, the report recommended modifying the Rules of Professional Conduct “to endorse well-being as part of a lawyer’s duty of competence.”

The Vermont Supreme Court has done exactly that.

Yesterday, the Court promulgated an amendment to Comment [9] to Rule 1.1.  The new comment reads:

  • “[9] A lawyer’s mental, emotional, and physical well-being may impact the lawyer’s ability to represent clients and to make responsible choices in the practice of law. Maintaining the mental, emotional, and physical well-being necessary for the representation of a client is an important aspect of maintaining competence to practice law.”

Two questions jump to mind: what is well-being and how does a legal professional maintain it?

As to the former, the Task Force wrote:

  • “We define lawyer well-being as a continuous process whereby lawyers seek to thrive in each of the following areas: emotional health, occupational pursuits, creative or intellectual endeavors, sense of spirituality or greater purpose in life, physical health, and social connections with others. Lawyer well-being is part of a lawyer’s ethical duty of competence. It includes lawyers’ ability to make healthy, positive work/life choices to assure not only a quality of life within their families and communities, but also to help them make responsible decisions for their clients. It includes maintaining their own long-term well-being. This definition highlights that complete health is not defined solely by the absence of illness; it includes a positive state of wellness.”

In addition, the Task Force noted that:

  • “The concept of well-being in social science research is multi-dimensional and includes, for example, engagement in interesting activities, having close relationships and a sense of belonging, developing confidence through mastery, achieving goals that matter to us, meaning and purpose, a sense of autonomy and control, self-acceptance, and personal growth. This multi-dimensional approach underscores that a positive state of well-being is not synonymous with feeling happy or experiencing positive emotions. It is much broader.”

Finally, the Task Force explained that it:

  • “chose the term ‘well-being’ based on the view that the terms ‘health’ or ‘wellness’ connote only physical health or the absence of illness. Our definition of ‘lawyer well-being’ embraces the multi-dimensional concept of mental health and the importance of context to complete health.”

With the definition in mind, how does a legal professional maintain well-being?  It strikes me that the answer depends on the individual. A place for everyone to start, however, is the ABA’s Well-Being Toolkit for Lawyers and Legal Employers.  Its 99 pages are chock full o’ helpful tips and guidance.

I can hear you now:

  • “Ummm, what’s that you say Mike? 99 pages? I don’t have that much time to work on my well-being!”

Fear not!  Besides the full toolkit, and perhaps with my law school career in mind, the ABA also created the Well-Being Toolkit Nutshell: 80 Tips For Lawyer Thriving.  It’s only 2 pages.  No excuses!

Well-being is important.  Take the time to understand what it is, how to achieve it, and how to maintain it.  As you do, try not to get caught up in “I’m only doing this because the new comment says I should.”  Rather, get caught up in the first of the Well-Being Nutshell’s 3 reasons to care about well-being:

“It’s the right thing to do.”

 

Image result for images of lawyer well-being

 

 

Social Media & Legal Ethics

It’s been a while since I’ve blogged, and even longer since I’ve subjected readers to the mantra upon which this blog was built:  competence includes tech competence.

With that in mind, an update!

A few weeks ago, the Commercial and Federal Litigation Section of the New York State Bar Association released its updated Social Media and Legal Ethics Guidelines.  First released in 2014, the Guidelines are one of the leading resources on a lawyer’s obligations under the rules of professional conduct with respect to social media.  While based on New York’s rules, the Guidelines cite to advisory ethics opinions from across the country. Here’s an outline distilled from the table of contents:

  1. Attorney Competence
  2. Attorney Advertising and Communications Concerning a Lawyer’s Services
  3. Furnishing of Legal Advice through Social Media
  4. Review and Us of Evidence from Social Media
  5. Communicating with Clients
  6. Researching Jurors and Reporting Juror Misconduct
  7. Using Social Media to Communicate with a Judicial Officer

There’s also an Appendix that includes a list of some of the more popular social media platforms, as well as a glossary of social media’s more commonly used words & phrases.

(no, I’m not sure that “social media’s more commonly used words & phrases” is proper grammar.  But I tend to write like I speak, and if I said it out loud, you’d know exactly what I meant.)

Anyhow, the Guidelines are a great resource.  I recommend bookmarking the link.

Finally, thank you Dave Carpenter for the h/t that the Guidelines had been updated!

Social Media

Monday Morning Answers

Happy fiscal new year!

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

Honor Roll

  • Karen AllenKaren Allen Law
  • Matt AndersonPratt Vreeland Kennelly Martin & White
  • Penny Benelli, Dakin & Benelli
  • Merrill BentWoolmington, Campbell, Bent & Stasny
  • Honorable John M. Conroy, United States Magistrate Judge, District of Vermont
  • Andrew DelaneyMartin & Delaney Law Group
  • Bob Grundstein, Esq.
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Deb Kirchwey, Esq.
  • Aileen LachsMickenburg, Dunn, Lachs & Smith
  • Thomas Kester, Assistant General Counsel. Blue Cross & Blue Shield of Vermont
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Jeff MessinaBergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Caryn WaxmanBarber & Waxman
  • Thomas Wilkinson, Jr., Cozen O’Connor
  • Zachary York, Vermont Superior Court, Chittenden Civil 

Answers

Question 1

The rule prohibits communicating with a represented __________:

  • A.   Party
  • B.   Person

This is Rule 4.2.  It applies to “persons and matters,” which is broader than “parties and cases.”

Question 2

True or false?

A lawyer may not accept representation in a matter that involves an area of law in which the lawyer does not possess the requisite level of competence to provide competent representation to the client.

FalseComments [2] & [4] to Rule 1.1

Question 3

The rules rarely reference specific practice areas.   However, there’s one rule that specifically references both criminal cases & divorces.  It’s the rule on:

  • A.   Contingent fees.  Rule 1.5(d)
  • B.   Flat fees
  • C.   Conflicts with former clients
  • D.   Prospective clients

Question 4

Lawyer represents Client in an appeal.   Opposing Counsel filed a brief.  The brief fails to cite to a case in the controlling jurisdiction that Lawyer knows to be directly adverse to Client’s position.  By rule, Lawyer’s reply brief:

  • A.   must not disclose the case
  • B.   may disclose the case
  • C.   may disclose the case if Client consents
  • D.   must disclose the case. 

This is Rule 3.3(a)(2).  Failure to disclose violates the duty of candor to the tribunal.

Question 5

The Supreme Court released several newsorthy decisions this week.

48 years ago today, the Court issued an opinion that garnered headlines nationwide.  The opinion overturned the conviction of a famous athlete. The athlete had refused to report for induction to the military after his application for conscientious objector status had been denied.

A unanimous Court (8-0, with Justice Marshall recusing himself) concluded that the athlete’s beliefs were “surely no less religiously based” than those that had been approved in granting other applications for conscientious objector status.

Name the athlete.

Cassius Clay (Muhammad Ali).  The case was Clay v. United States.  The National Constiutiion Center has the story here.

The most famous photo of Ali ever taken is of him standing over Sonny Liston, who appeared to have thrown their 1965 bout. It was taken by Neil Leifer and was shot in colour. Spare a thought then for John Rooney, sat right beside Leifer, who captured this less-acclaimed version. Growing up, I remember buying this one and loving it all the same.

Five for Friday #169

What a beautiful Friday!

It’s days like this that I live for.  And days like this that make me shudder to think of November, December, January, February, March and each of the past two Aprils.  But thinking is overrated.  So, instead, I’m going to enjoy today for what it is.  And given a fantastic confluence of events, today is shaping up to be a good day indeed.

Last summer, my brother and I took full advantage of the fact that the Men’s World Cup was held in Russia.  The time difference made for ideal start times in the eastern U.S.

This summer, the gift continues to give, with the Women’s World Cup taking place in France. An added bonus?  Unlike the men, the US Women not only qualfied for the tournament, they have a chance to win!  Today’s quarterfinal against France is on our agenda.

Also, our cousins Sean and Richie are in town. Their mom is my dad’s sister.  Sean is a fighter pilot based in California.  Richie lives in Plattsburgh.  As is common in Irish families like ours, I’m not exactly sure what Richie does. Which makes us even, because I’m pretty sure he thinks I’m a teacher.  Aunt Kate would be so proud of the interest her grandnephews take in each other’s lives!

Anyhow, another of our traits is a conviction in the superstitious powers of sayings. Thus, fully aware that familiarity breeds contempt, Sean, Richie and I limit our in-person interactions to the Friday afternoon in late June that falls during Sean’s annual trek home.  Today, we’ll meet at the same bar we always do and pretend to catch up.  Then, we’ll tell the same stories we always re-tell, only this year we’ll laugh even harder than  in previous years, as if it’s the first time any of us has heard the story.

In a sense, each telling will be “new.”  You see, it’s not uncommon for our old stories to acquire new details with each passing year.  Details that the others know full well never happened, but that we leave unchallenged given how much better their inclusion makes the story.  We’ve long lost track of the line that demarcates our actual childhood activities from the heroic & glamourous adventures our adult minds are certain we lived.

But you know what?  That’s ok.

It’s only a few hours a year, but I love seeing my cousins.  Not just Sean and Richie, but all my cousins on both sides of the family.

There’s an old Irish blessing:

Image result for irish blessing plaque cousins

To cousins.  May even one of yours be as good as each of mine.

Onto the quiz!

Rules

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

Question 1

The rule prohibits communicating with a represented __________:

  • A.   Party
  • B.   Person

Question 2

True or false?

A lawyer may not accept representation in a matter that involves an area of law in which the lawyer does not possess the requisite level of competence to provide competent representation to the client.

Question 3

The rules rarely reference specific practice areas.   However, there’s one rule that specifically references both criminal cases & divorces.  It’s the rule on:

  • A.   Contingent fees
  • B.   Flat fees
  • C.   Conflicts with former clients
  • D.   Prospective clients

Question 4

Lawyer represents Client in an appeal.   Opposing Counsel filed a brief.  The brief fails to cite to a case in the controlling jurisdiction that Lawyer knows to be directly adverse to Client’s position.  By rule, Lawyer’s reply brief:

  • A.   must not disclose the case
  • B.   may disclose the case
  • C.   may disclose the case if Client consents
  • D.   must disclose the case

Question 5

The Supreme Court released several newsorthy decisions this week.

48 years ago today, the Court issued an opinion that garnered headlines nationwide.  The opinion overturned the conviction of a famous athlete. The athlete had refused to report for induction to the military after his application for conscientious objector status had been denied.

A unanimous Court (8-0, with Justice Marshall recusing himself) concluded that the athlete’s beliefs were “surely no less religiously based” than those that had been approved in granting other applications for conscientious objector status.

Name the athlete.

Redacting Confidential Info

In January, Paul Manafort’s lawyers made headlines for failing to take proper steps to redact a document.  Myriad outlets covered the story, including The Atlantic, BBC, and Legal Tech News.

In response, the ABA Journal posted How to redact a PDF and protect your clients.  A few days later, I recommended the ABA post in my blog Competence, Confidences and PDFs

Today, the ABA Journal published more helpful information: Redacting confidential client information: The devil is in the detailsThe post points out the risks in failing to understand how property to redact a document.  I recommend it.

One risk? Disciplinary action.  Lawyers have a duty not to disclose information relating to the representation of a client.  There’s also a duty to use reasonable safeguards to protect against unauthorized access to or inadvertent disclosure of confidential information.  In my view, employing a redaction method that fails to keep information confidential is not a reasonable safeguard.

Rather, it’s tech incompetence.

Image result for images of redacting confidential info

 

 

 

Monday Morning Answers #168

Happy Monday!

Friday’s questions are here. The answers follow today’s Honor Roll. The race went well, and I recommend a day or two in Portland.

IMG_2851

Honor Roll

Answers

Question 1

What is the quoted language more commonly known as?

  • “a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibility to another client, a former client or a third person . . .”

A concurrenct conflict of interest . See, Rule 1.7(a)(2).

Question 2

Someone Other Than Client (“SOTC”) is paying Lawyer to represent Client. Which is most accurate?

With respect to information related to the representation of Client, Lawyer

  • A.  may disclose to SOTC without Client’s consent;
  • B.  must disclose to SOTC even over Client’s objection;
  • C.  may not disclose to SOTC without Client’s consent or unless disclosure is otherwise authorized by the rules.  Rule 1.8(f)
  • D.  None of the above.

Question 3

Confidences. Competence.  Conflicts.  Candor.  Communication. Civility.

There’s another word that begins with “C” that is a serious violation of the rules. However, the word doesn’t appear in any of the rules, notable in its absence from the trust accounting rules and the rule on safekeeping client property.

What’s the word?

I was looking for “Commingling.”  Several readers ubmitted another answer that I accepted: “Conversion.”

Question 4

Former Client sued Lawyer for malpractice.  Lawyer had represented Former Client in a divorce.  Attorney represented Former Client in the malpractice action.

Attorney proposed a settlement.  Lawyer accepted. The settlement included a provision that Lawyer will not represent clients in divorces for 5 years.

Did either Attorney or Lawyer violate the rules?

  • A.  Yes, Lawyer’s malpractice in the divorce is a per se violation.
  • B.   Yes, Attorney violated the rules by making the offer.
  • C.   Yes, Attorney and Lawyer violated the rules by making and accepting the offer.  Rule 5.6.  This isn’t a common issue, but it came up in an inquiry I received last week.
  • D.  A and B.

Question 5

Increase Mather was born on this day in 1639. Apropos of my intro, many of Mather’s beliefs wouldn’t be acceptable in today’s society.

Yet, one likely stands the test of time.  In his work “Cases of Conscience,” Mather referred to the so-called “Blackstone Ratio,” the idea that it’s better that 10 guilty persons go free than 1 innocent person be punished.

What notorious legal event prompted Mather to write Cases of Conscience?

The Salem Witch Trials

Image result for salem witch trials