Monday Morning Answers #121

Welcome to Monday! Looks like summer turned on the heat!

Friday’s questions are here.  The answers follow today’s honor roll.

Image may contain: 2 people, including Norman Lemieux, people smiling, outdoor

Honor Roll

  • Karen Allen, Esq.
  • Matthew AndersonPratt Vreeland Kennelly & White
  • Leslie Black, Black & Govoni
  • Rich Cassidy, Esq.
  • Robert Grundstein, Esq.
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Mark Kennedy, Dad
  • Scott Mapes, Esq.
  • Johsua Martin, Green Mountain Legal
  • Lon McClintockMcClintock Law Offices
  • Jeff MessinaBergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Jody Racht, Assistant Attorney General, VT. Department of Children & Families
  • Allison Wannop, Law Clerk, Vermont Superior Court
  • Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

It’s likely a violation of the rules for a lawyer to:

  • A.  use an electronic trust accounting system
  • B.  self-represent in a divorce
  • C. condition settlement of a malpractice claim on a former client’s agreement not to file a disciplinary complaint against the lawyer.
  • D.  while representing a client who is adverse to a represented organization, communicate with former employees of the organization without the consent of the organization’s lawyer.

For more, see my post Disciplinary Complaints: File & Let File

Question 2

True or False.

The rule on trial publicity only applies in criminal cases.

FALSE.  Rule 3.6 applies to any lawyer who “is participating or has participated in the investigation or litigation of a matter.”

Question 3

Lawyer called me with an inquiry. I listened, then said:

“The rule authorizes deposits that are for the sole purpose of paying service charges or fees, but only in an amount necessary to pay those charges and fees.”

What specific issue did Lawyer call to discuss?

The trust account rules. Specifically, Rule 1.15(b) and depositing the lawyer’s own funds into trust.

Question 4

Which is most accurate?

A frivolous discovery request is a violation of the Rules of Professional Conduct.

  • A.  True.  See, Rule 3.4(d)
  • B.  False. The trial courts have exclusive jurisdiction over discovery issues.
  • C.  Only if the lawyer is given a reasonable opportunity to withdraw the request and chooses not to.
  • D.  Generally true, but it’s not a violation if the client, upon being advised by the lawyer that the request is frivolous, insists that the lawyer make the request.

Question 5

There’s a lawyer who has been in the news an awful lot lately.  Recently, the intense media coverage of the lawyer and his famous client resulted in reports about the lawyer’s firm’s bankruptcy proceeding.  Per a headline in the Los Angeles Times, the lawyer “tested legal boundaries as his firm maneuvered into bankruptcy.”

  • Name the lawyer
  • Name the famous client who has made the lawyer the subject of intense media coverage over the past several months

Michael Avenatti.   Stephanie A. Clifford (aka “Stormy Daniels”)

The Los Angeles Time piece on Avenatti’s bankruptcy is here.

Image result for avenatti daniels

Advertisements

Five for Friday #121

Welcome to #121!

So, 121 is a palindromic number.  You know what else is a palindrome?  The word “dad.”  So, on Father’s Day weekend, I thought I’d share a few thoughts about my dad, Mark Kennedy.

Many of my readers know my mom.  Because she’s awesome. And, lawyers being lawyers, they like to get to know awesome people.

Not as many readers know my dad.  He’s awesome too.  In 1992, he re-married and moved south.  Had he stayed, readers would’ve tried to get to know him as well.

My dad grew up in Burlington’s Old North End under the watchful eye of Aunt Kate.  His parents bounced around the neighborhood from apartment to apartment.  Every apartment that my dad lived in as a kid is within .25 miles of my office.

My dad went to Cathedral High School.  For those of you who don’t know, Cathedral is what Rice used to be called.  It was on the corner of Pearl & St. Paul, a site that is now the state garage where I park for work.

After graduating, my dad enrolled at St. Michael’s.  He walked to and from class.  My grandparents didn’t have much.  Money ran dry after my dad’s sophomore year. So, he joined the Army, served for a few years in Germany, then returned to Burlington to finish up at St. Mike’s.

My dad’s first job was as a teacher in Essex.  Eventually, he became the vice-principal at Shelburne Middle School, then the principal at Camel’s Hump Middle School.  When I was a 6th grader at South Burlington Middle School, the principal left.  So, the district hired a new guy: my dad.

Some might say that it’d stink to have your dad be your principal.  Au contraire.  It works out quite nicely when the principal understands all-too-well the perils of reporting alleged misconduct to a particular student’s mom.

Anyhow, long story short, in 1992, my dad married Jane Ramsey.  At the time, Jane lived in Yorktown, Virginia.  My dad moved down there, spent 10 years as the vice-principal at Yorktown’s Bruton High School, then retired. Now, he and Jane live in Flat Rock, North Carolina, a small town about 25 miles southwest of Asheville.

Thinking about my dad for this post, I was struck by a few things.

First, it’s hard to describe the essence of a person.  Not so much with my dad.  He might disagree, but to me, he lives his life by two rules: (1) he’s kind to everyone; and (2) he thinks before he speaks.  The world, and our profession, could use more people with the same approach.

Next, I was struck by how much of myself I can trace back to my dad & his influence.  This blog & my CLE presentations are a perfect example.  Besides legal ethics, what do I mention most?   Sports, running, and coaching basketball.

My dad introduced my brother & I to sports.  He played sports with us. He watched sports with us.  He taught us about sports.  He took us to Expos and Red Sox games.  He went to every single one of our games and was always supportive.

As for running, I was the last in my family to the sport.  I didn’t start running until I was 40.  My brother was a star runner at SBHS and helped lead his team to the state championship as a senior.  The original Kennedy to run? My dad.  He ran track at Cathedral (100, 200, and relay) and helped lead his team to the state championship as a senior.  My first coach when I finally started to run?  My dad.

By the way, my dad still runs.  Just a few years ago he dominated his age group at the Asheville Turkey Trot:

IMG_0445

Finally, coaching basketball. Not much has influenced my life more than my career as a high school basketball coach.  I honestly cannot imagine my life without my core group of friends, every single one of whom I met thru coaching.

Way back when, my dad was a basketball coach. He coached 8th grade CYO teams for Cathedral, helping to develop many players who went on to win state championships at Rice.

More importantly to me, the only reason I got into coaching was because my high school coach asked me to work as an assistant after I graduated.  It’s an opportunity that, really, was only available to me because of my dad.

You see, when I was a junior in high school, my basketball team had a scrimmage.  The same coach who would later give me my start in coaching barely played me during the scrimmage.  That night, I told my dad I was going to quit.  He didn’t get mad, or tell me that I couldn’t quit.  Rather, he paused, and then told me that another option would be to go back and try to get better.  So, I did.  I played for the remainder of my high school career.

Had I quit, there is a 0% chance that my high school coach would’ve asked me to be an assistant.  A career that ended up meaning so much to me never would have started.  Thanks to kind, gentle, subtle nudging from my dad, it did.

Oh, and one more thing, but for my dad, I might not have gone to law school.

After I graduated from UVM, I had a job at a gas station on Shelburne Road. I loved it. I pumped gas, sold cigarettes & beer, made some money, and worked with some good high school friends.  After a few months, the boss made me “day manager,” paid me $325 per week, and let me work hours that would allow me to coach high school football & basketball.  Life was perfect.

One day, my dad stopped by.  Very calmly, he asked “you gonna change oil your whole life?”  At first, I was thrilled.  You see, the owners had let me change tires, but they knew better than to let me change oil.  So, I was ecstatic that my dad was so confident in me to see that, soon enough, I’d be entrusted to handle the “oil, lubes & filters.”

Then his point sank in.  So, I applied to law school.  And here I am.  And where I am is not only a great spot, but it’s a spot upon which I’d never have landed without my dad’s support.  So much that matters to me, so much that IS me, I owe to my dad.

Dad – on behalf of Patrick, we love you.  Happy Father’s Day!  We can’t wait to see you in D.C. in a few weeks for the Sox-Nationals games.  Until then, don’t waste your time looking in the mail for a gift or card.  The fact remains, you raised 2 Irish sons for whom planning ahead isn’t a strong suit.

That being said, on Father’s Day, Patrick & I are heading to Lebanon, NH. I’m going to run a race. It’s sponsored by an Irish bar, and Patrick & I fully intend to stop at the bar after the race.  When we do, we’ll order 3 pints: 1 for Patrick, 1 for me, and 1 for you.

We’ll each drink our own, then half of yours.

As I said, you raised two Irish sons!

Onto the quiz!

RULES

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Even question 5!
  • 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

It’s likely a violation of the rules for a lawyer to:

  • A.  use an electronic trust accounting system
  • B.  self-represent in a divorce
  • C. condition settlement of a malpractice claim on a former client’s agreement not to file a disciplinary complaint against the lawyer.
  • D.  while representing a client who is adverse to a represented organization, communicate with former employees of the organization without the consent of the organization’s lawyer.

Question 2

True or False.

The rule on trial publicity only applies in criminal cases.

Question 3

Lawyer called me with an inquiry. I listened, then said:

“The rule authorizes deposits that are for the sole purpose of paying service charges or fees, but only in an amount necessary to pay those charges and fees.”

What specific issue did Lawyer call to discuss?

Question 4

Which is most accurate?

A frivolous discovery request is a violation of the Rules of Professional Conduct.

  • A.  True
  • B.  False. The trial courts have exclusive jurisdiction over discovery issues.
  • C.  Only if the lawyer is given a reasonable opportunity to withdraw the request and chooses not to.
  • D.  Generally true, but it’s not a violation if the client, upon being advised by the lawyer that the request is frivolous, insists that the lawyer make the request.

Question 5

There’s a lawyer who has been in the news an awful lot lately.  Recently, the intense media coverage of the lawyer and his famous client resulted in reports about the lawyer’s firm’s bankruptcy proceeding.  Per a headline in the Los Angeles Times, the lawyer “tested legal boundaries as his firm maneuvered into bankruptcy.”

  • Name the lawyer
  • Name the famous client who has made the lawyer the subject of intense media coverage over the past several months

 

 

 

 

 

 

 

Bouchons, Cybersecurity & Ransomware

Yesterday, I met with lawyers from the Lamoille County Bar Association.  Leslie Black, president-emeritus (by my proclamation) of the LCBA, had me up to talk legal ethics.

As an aside, Leslie stole the show by showing up with a fresh batch of bouchons.  You might have heard of Thomas Keller and the Bouchon Bakery.   Fine stuff, I’m sure.

Well, Leslie’s lemon bouchons, with a hint of cinnamon, are better.  And that, my friends, is not mere puffery.   The trick, je pense, is her brown butter recipe.

Leslie – les bouchons etait magnifique!

Now, back to business.

First off, I hope I’ve dispelled those who are less tech competent than others of the notion that “bouchon” has something to do with cybersecurity & ransomware.

Next, yesterday, we had an interesting discussion on cybersecurity & ransomware.  I’ve blogged previously on the issue here.  I’m blogging again for a few reasons.  Mainly, to stress a key point that David Polow made at the CLE:  back-up.  Storing info only in the cloud isn’t enough.

My prior blog post includes links to several helpful articles.  I failed to link to this one from the ABA Journal: Ransomware is a growing threat, but there are things you can do to protect your firm.  A critical point in the article echoes David:

  • ” The panelists say that the core of ransomware protection is a robust backup system. However, Simek said that backups need to be tested on a periodic basis.If a firm’s backup is in the cloud, then redundancies of that backup system should be made as well—in other words, one backup is insufficient. For the truly business-critical data, McNew said a backup should be stored offsite and ‘air gapped,’ meaning it is not able to connect to the internet.”

Or, as Jim Knapp says, when it comes to backup “onsite, online, air-gap.”

Are you likely to be targeted? I don’t know.  It happened to one of the nation’s largest firms.  And, a Vermont firm was targeted in April.  The firm did not have sufficient back-up and data was at risk.

If it’s an issue that concerns you, talk to someone with a tech background.  Here are a few links from my original post that might be helpful:

As always, let’s be careful out there.

Disciplinary Complaints: File & Let File

It’s CLE season.  Here’s a topic that has been raised more than once on the circuit:

  • Mike – what do I do if opposing counsel threatens to file a disciplinary complaint against me?

My response?  Let ’em. In fact, give ’em my address. Then, let’s talk about whether you want to report the threat.

When it comes to disciplinary complaints, my view is “File & Let File.”

I’ll proceed in reverse.

Let File

When threatened with a disciplinary complaint, a lawyer’s response might be “okay, my client and I will do X, but only if you and your client agree not to file a complaint against me.”

That’s a violation.  Don’t take my word for it, take the word of the Vermont Professional Conduct Board.

Many years ago, the old PCB considered this situation:

  • Lawyer secured a judgment against Former Client for an unpaid fee.
  • Former Client hired an attorney and brought a malpractice claim.
  • Lawyer hired an attorney too.
  • Former Client made it clear that she intended to file a disciplinary complaint against Lawyer.
  • Negotiating a resolution of both the unpaid judgment & the malpractice claim, Lawyer and Lawyer’s Attorney proposed that Former Client execute a release in which she agreed not to file a disciplinary complaint against Lawyer.

Back then, DR 6-102(A)(5) prohibited lawyers from engaging in conduct that was prejudicial to the administration of justice.  These days, Rule 8.4(d) prohibits such conduct.

In Decision 44, the PCB concluded that Lawyer violated the rule by asking Former Client not to file a disciplinary complaint against him.  Not only that, in Decision 67, the PCB concluded that Lawyer’s Attorney also violated the rule.  Each was admonished.

Decision 67 includes language that, to me, remains important.  The Board noted that it is a violation to ask a client to agree to forego making a disciplinary complaint, “no matter how frivolous [that complaint] might be.”

Vermont’s not alone on this issue.  In Ethics Opinion 260, the D.C. Bar concluded that

  • “[U]nder no circumstances may a lawyer seek to thwart the Bar’s duty to oversee, regulate and discipline its members by eliciting a former client’s agreement not to file a complaint with Bar Counsel.”

Many years ago, the New York Legal Ethics Reporter published You Can’t Stop a Client from Complaining.  The article cites to several authorities that have reached similar conclusions as Vermont and D.C.   Among others, the article quotes from the Arizona State Bar’s Advisory Ethics Opinion 91-23:

  • “Additionally, and more importantly, agreements limiting an attorney’s exposure to disciplinary action have the effect of undermining the Bar’s efforts at self-regulation. It is one thing to say that an attorney can conduct an arm’s-length transaction with a client (who is represented by independent counsel) which will limit the client’s monetary damages in a potential malpractice case, and another to say an attorney can ‘limit’ the integrity of the profession by preventing a complaint from being filed with the State Bar. As a matter of public policy, every attorney must be accountable for his misconduct, and should not be able to contract his way out of it.”

Finally, I’m as concerned when the lawyer who makes the request is not a party to the underlying action.  Imagine:

  • Lawyer represents Client in Client v. Other
  • Other proposes a settlement
  • Lawyer demands that any resolution include an agreement that Other not file a disciplinary complaint against lawyer

To me, that’s the exact type of conduct that Vermont, D.C., and Arizona have said is not allowed. Not only that, in my view, it puts Lawyer in conflict with Client.   That is, what if Other refuses to forego a complaint against Lawyer and, as a result, Client is deprived of a settlement that Client otherwise would have accepted?

When threatened, my thought is that a lawyer should “let file.”

File

I’m not a fan of lawyers who threaten other lawyers with disciplinary complaints.  If you have one, file it.  Also, remember that Rule 8.3 mandates reports in certain situations.  There is no exception for “I was able to use the threat of a complaint to extract concessions from the lawyer.”

Again, I’m not alone in this view.  In 2012, the ABA Journal reported a decision in which the Indiana Supreme Court publicly reprimanded a lawyer for threatening to file a disciplinary complaint against another lawyer.

Further, as noted by The Law for Lawyers Today, the threat to file a disciplinary complaint can backfire.  The post cites to the New York City Bar Association’s Formal Opinion 2015-5.  The opinion does not conclude that every threat to make a disciplinary complaint is a violation. However, the opinion urges caution.  It concludes:

  • “An attorney who intends to threaten disciplinary charges against another lawyer
    should carefully consider whether doing so violates the New York Rules. Although
    disciplinary threats do not violate Rule 3.4(e), which applies only to threats of criminal charges, they may violate other Rules. For example, an attorney who is required by Rule 8.3(a) to report another lawyer’s misconduct may not, instead, threaten a disciplinary complaint to gain some advantage or concession from the lawyer. In addition, an attorney must not threaten disciplinary charges unless she has a good faith belief that the other lawyer is engaged in conduct that has violated or will violate an ethical rule. An attorney must not issue a threat of disciplinary charges that has no substantial purposeother than to embarrass or harm another person or that violates other substantive laws ,such as criminal statutes that prohibit extortion.”

In sum, when it comes to disciplinary complaints, I think the best approach is “file and let file.”

Caution

 

 

 

 

Monday Morning Answers #120

Good morning! Welcome to Monday!

Friday’s questions are here.  The answers follow today’s honor roll.

Honor Roll

Answers

Questions 1

Two things are missing from this list.  What are they?

  • free speech
  • free exercise of religion
  • right to petition the government for the redress of grievances
  • no establishment of religion

The language is from the First Amendment.  The missing items are:  freedom of the press, and right to peaceably assemble.

Question 2

Which came first?

  • A.  Voting age lowered to 18 (1971)
  • B.  Prohibition repealed (1933)
  • C.  Women given the right to vote – 1920

Question 3

In October, the VBA’s Pro Bono Conference will include a “TED-Talk” on due process & municipal boards.  The phrase “due process” appears in two amendments.  Which two?

  • A.   1st and 5th
  • B.   5th and  8th
  • C.   5th and 14th
  • D.   8th and 14th

Question 4

Delaware was the 1st state to ratify the Constitution.  Very recently, and in response to a U.S. Supreme Court decision that involves states’ rights, Delaware became the 2nd state to allow what?

Commerical Sports Betting.  The decision was Murphy v. NCAA.  The New York Times covered it here.  The over/under “correct answers” for this question was “67% of respondents.”  It went over.

Question 5 & Bonus

Thaddeus Stevens was born in Vermont.  He practiced law in Pennsylvania and, eventually, was elected to the U.S. House of Representatives.  In Congress, Stevens played a critical role in the drafting & passage of what has been called both a “mini-Constitution” and the Constitution’s most important amendment.

Which amendment? And, who played Stevens in the movie Lincoln?

The 14th Amendment.  Last year, the ABA Journal posted: The 14th. A Civil War era amendment has become a mini-constitution for modern times For a bit on Stevens’ involvement, see this morning’s postthis morning’s post from Lancaster Online.

Tommy Lee Jones

Image result for images of thaddeus stevens

Five for Friday #120

Welcome to #120!

Very simply – I’ve got nothing for you on 120.  Couldn’t find a way to connect this intro to the number.  I tried.  I failed.  But, in the process, I learned a few things.

First, today is Kanye’s birthday!  As some of you might know, I’ve often used Kanye in my pub quizzes.  Not to mention, thinking of Kanye, I was reminded of one of my favorite albums:  Late Registration.  

And, Late Registration reminded me that some of you have yet to renew your law licenses.  For information on how to renew, click here.  Questions? E-mail Andy Strauss.  Andy is the Licensing Attorney.

Don’t be late!

Happy Birthday Kanye!

Second, on this date in 1789, James Madison introduced the Bill of Rights.  Lately, I’ve included the Constitution in several of my seminars.  Over the past few years, the Vermont Supreme Court and the VBA have done a great job promoting civics, and I think it’s important for lawyers to have, at least, a basic understanding of the Constitution.

Anyhow, that’s all I’ve got for you today. No tie, clever or otherwise, to 120.  Just Happy Birthday shoutouts to Kanye & the introduction of the Bill of Rights.

Onto the quiz!

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Even question 5!
  • 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

Questions 1

Two things are missing from this list.  What are they?

  • free speech
  • free exercise of religion
  • right to petition the government for the redress of grievances
  • no establishment of religion

Question 2

Which came first?

  • A.  Voting age lowered to 18
  • B.  Prohibition repealed
  • C.  Women given the right to vote

Question 3

In October, the VBA’s Pro Bono Conference will include a “TED-Talk” on due process & municipal boards.  The phrase “due process” appears in two amendments.  Which two?

  • A.   1st and 5th
  • B.   5th and  8th
  • C.   5th and 14th
  • D.   8th and 14th

Question 4

Delaware was the 1st state to ratify the Constitution.  Very recently, and in response to a U.S. Supreme Court decision that involves states’ rights, Delaware became the 2nd state to allow what?

Question 5 & Bonus

Thaddeus Stevens was born in Vermont.  He practiced law in Pennsylvania and, eventually, was elected to the U.S. House of Representatives.  In Congress, Stevens played a critical role in the drafting & passage of what has been called both a “mini-Constitution” and the Constitution’s most important amendment.

Which amendment? And, who played Stevens in the movie Lincoln?

Image result for images of thaddeus stevens

 

Montreal?

There’s a lot going on in Montreal this summer.  Go! Be a #WellLawyer!

But, if you go, make sure you take reasonable precautions to protect client data at the border.

Today, I’m going to share a few old posts, as well as an updated advisory ethics opinion from the New York City Bar Association.

My old posts:

Last summer, the New York City Bar Association issued Formal Opinion 2017-5.  In short, and as reported by the ABA Journal, lawyers should take reasonable precautions to avoid the disclosure of client information during a border crossing.

Here are some highlights from the NYC Opinion:

  • Rules 1.1 (competence) and 1.6 (confidences) impose a duty to act competently to safeguard client information.
  • The duty includes taking reasonable precautions against disclosing information that should not be disclosed.
  • The duty requires “attorneys to make reasonable efforts prior to crossing the U.S. border to avoid or minimize the risk that government agents will review or seize client confidences that are carried on, or accessible on, electronic devices that attorneys carry across the border.”

Last month, the NYCBA reissued the opinion.  Some other takeaways:

  • Odds that a device will be searched might be low.  But, don’t discount the possibility.
  • The safest way to protect client data is not to bring any.  This might not be feasible given the increasingly blurred lines between “work” and “personal” devices, but it remains an option.
  • If asked to produce a device, an attorney should inform the border agent that it contains confidential & privileged information.  This triggers additional duties by the border agent before the search is conducted.
  • Finally, if a device is searched, an attorney likely has a duty to notify clients.

For more, see the opinion.

Adieu et bon voyage!

See the source image

 

 

 

108

I do a lot of CLEs this time of year.  This week, I’ve met with the Professional Responsibility Program, the State’s Attorneys, and the Chittenden County Bar Association.  Later today I’m presenting at the Defender General’s training.  Next week: the Attorney General’s Office and Andy Mikell’s VATIC conference.

Obviously, each presentation is different.  Yet, I’ve started each (and will start each) with a report on the relatively new Vermont Commission on Well-Being in the Legal Profession.   The response has been fantastic.  After each presentation so far, I’ve been contacted by lawyers who are willing to get involved to help other lawyers.

For more, read on.  I’m pasting in a blog that I posted a few months ago.

108

The Substance Abuse and Mental Health Services Administration is a branch of the U.S. Department of Health & Human Services.  In 2015, SAMHSA conducted a national survey on drug use and health.  The survey found that approximately 4% of Vermonters had experienced serious thoughts of suicide over the previous year.  The Vermont results are here.

There are approximately 2,700 lawyers with active licenses in Vermont.  If lawyers suffer at the same rate as other Vermonters, 108 Vermont lawyers have had serious thoughts of suicide over the past year.

108.

In 2016, the ABA’s Commission on Lawyer Assistance Programs and the Hazelden Betty Ford Clinic released a study on lawyers’ behavioral health.  The ABA announced the study’s results here.

Per the announcement, the study revealed “substantial and widespread levels of problem drinking and other behavioral health problems in the U.S. legal profession.”  In addition, the study “determined that lawyers experience alcohol use disorders at a far higher rate than other professional populations, as well as mental health distress that is more significant.”

Fact: in the past 3.5 years, 5 Vermont attorneys have committed suicide.

Fact: 2 of those 5 took their lives in 2018.

Fact: since September 2016, as many lawyers have had their licenses transferred to disability inactive status due to mental health or substance abuse issues as did in the previous 16 years.

There’s a problem.

Fortunately, the profession has started to address it.

In response to the ABA/Hazelden Study, three groups spurred creation of a National Task Force on Lawyer Well-Being.  The groups:

Last summer, the National Task Force published “The Path to Lawyer Well-Being: Practical Recommendations for Positive Change.”  The report makes a series of recommendations to the legal profession’s various stakeholders and urges state supreme courts to form committees to review the recommendations.

On January 2, 2018, the Vermont Supreme Court issued a charge & designation creating the Vermont Commission on the Well-Being of the Legal Profession.  The Commission includes a representative from each of the stakeholder group mentioned in the National Task Force’s Practical Recommendation for Positive Change.   Each Commission member has formed a sub-committee to review the recommendations for that particular stakeholder group.

For example, I’m on the Commission as the representative from the “attorney regulators” stakeholder group.  My sub-committee includes one representative from each of the following: the Professional Responsibility Board, the Board of Continuing Legal Education, the Board of Bar Examiners, the Character & Fitness Committee, and the Judicial Conduct Board. I also appointed a lawyer who has long represented lawyers and judges in professional conduct investigations and prosecutions.  My sub-committee will review and report on recommendations that the Court’s various regulatory bodies ensure that lawyer health & wellness is prioritized throughout the licensing/regulatory scheme.

The Commission’s work will be the subject of the plenary session at the Vermont Bar Association’s upcoming midwinter meeting.  For more information, including how to register, please visit this site.

As I’ve blogged, the report from the National Task Force is a call to action.  In my view, we have duty to keep this issue on the front burner.

Why?

Because 108.  That number is far too high.

Other posts on this topic:

Monday Morning Answers: #119

Welcome to Monday!

Friday’s questions are here.  The answers follow today’s honor roll.

Honor Roll

Answers

Question 1

Lawyer used to represent Client.   Per the Rules of Professional Conduct, which situation is different from the others?

  • A.  Client files disciplinary complaint against Lawyer.
  • B.  Client sues Lawyer for malpractice.
  • C.  Client posts negative online review about Lawyer.
  • D.  Client files petition for post-conviction relief alleging that Lawyer failed to provide effective assistance of counsel.

Rule 1.6(c)(3) permits but does not require lawyers to disclose otherwise confidential information “to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client . . . [or] to respond to allegations in any proceeding concerning the lawyer’s representation of the client.” Per Comment [12], the rule can “arise in a civil, criminal, disciplinary, or other proceeding.”

A, B, and D are “controversies” or “proceedings” that trigger the rule. At the end of this post you’ll see a digest of cases & opinions that make clear that a negative online review is not a “controversy” or “proceeding” for the purposes of the rule.  

Caveat: any disclosure made pursuant to the rule should be limited to respond only to the specific controversy or allegation, and, if made in court, should include reasonable efforts to limit access to the information to people who need to know. Comment [14].

Finally, as noted by ABA Formal Opinion 10-456, a criminal defense lawyer should raise, or give the former client an opportunity to raise, all non-frivolous arguments against waiving the attorney-client privilege.

Question 2

Lawyer called me with an inquiry. I listened, then replied:  “I disagree. I wouldn’t call without permission. The rule applies to ‘matters’  Litigation doesn’t have to be pending for there to be a ‘matter.’ ”

What rule? (the topic of the rule is fine)

Communicating with a represented person.  See, Rule 4.2.

Question 3

Per the rule, an attorney shall not “prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless __________”

  • A.    The attorney or recipient is related to the client.  Rule 1.8(c)Comment [7] suggests that a non-relative cannot waive the protection of this rule.
  • B.     The client gives informed consent
  • C.     The client gives informed consent, confirmed in writing
  • D.    The client is given a reasonable opportunity to seek independent legal advice

Question 4

If you go to one of my seminars and hear me babbling about stuff that’s “onsite, online, and air-gap,” it’s most likely that I’m talking about:

  • A.  Trust accounting software
  • B.  The duty to safeguard electronically stored client information.  See: Ransomware & Cybersecurity Insurance
  • C.  Software that assists with conflict checks
  • D.  The duty of competence insofar as it relates to online legal research

Question 5

Speaking of frivolous claims . . .

Lionel Hutz is a fictional lawyer.  On behalf of a client, he sued The Frying Dutchman restaurant over its “All You Can Eat” offer.  Hutz referred to the offer as “the most blatant case of fraudulent advertising since my suit against the film The Never Ending Story.”

In another episode, the same client retains Hutz as a result of Hutz’s slogan “Cases won in 30 minutes or your pizza is free.”  Thinking he lost the case, Hutz gave the client and the client’s family a box of pizza.  The client’s wife pointed out that they won the case. Hutz responded that the pizza box was empty anyway.

How’d Hutz get a law license? I don’t know. But I do know that he claimed “I’ve attended Harvard, Yale, MIT, Oxford, the Sorbonne, and the Louvre.”

You might know the actor who voiced Hutz better for his roles on Saturday Night Liveand NewsRadio.

Name the client.

Homer Simpson

See the source image