Update to the Judicial Emergency Order

Earlier today, the Supreme Court amended Administrative Order 49 to extend the Judicial Emergency until May 31, 2020.  This includes jury trials and jury draws, with the suspension thereof now coterminous with the suspension of other hearings.

Today’s Order and Explanatory Note are here.

The Order and prior amendments:

A consolidated Order is available on the Judiciary’s COVID-19 information page.

100+ Free Update & Upgrade Images - Pixabay

 

Wellness Wednesday: Be Kind to Lawyers

Tomorrow is “International Be Kind to Lawyers Day.”

I’m not too conversant in legal phrases or the principles of statutory construction.  Yet, I’m generally aware of the maxim “inclusio uno (est) exclusio alterius.”

I’d be surprised if the creators of “Be Kind to Lawyers Day” intended to limit it to a single 24-hour span.  So, I hope that the Inclusio Uno Legion doesn’t intend to argue for such a restriction. If they do, here’s my rebuttal:

Why wait until tomorrow?  When it comes to being kind to lawyers, there’s no better time than now.  And, on that point, remember:

  • It’s always “now.”
  • For lawyers, being kind to a lawyer includes being kind to yourself.

Wellness

Below, I’ve pasted in my post from 2019’s Be Kind to Lawyers Day.  I’m re-posting because it’s consistent with Wellness Wednesday.

*****************************************

Originally Posted on April 9, 2019

Today is International Be Kind to Lawyers Day.

I’ve done some research on the day’s origins.  Meaning, I read this and this.  While each suggests we might debate the motivation behind the creation, #bekindtolawyersday is legit trending on social media.  So, it must be a real day.

Who is most likely to deal with a lawyer today?  Other lawyers.  Thus, to borrow a quote from JFK, here’s my request of my lawyer-readers:

  • Ask not who will be kind to you today.  Ask to whom you will be kind.

I’ve often mentioned that the Rules of Professional Conduct don’t require lawyers to be nice.

Still, why not try?

Indeed, as I mentioned here, I recently did a CLE on attorney wellness that segued into a discussion on whether a lack of civility within the profession contributes to the profession’s lack of wellness.

The VBA has adopted Guidelines for Professional Courtesy.  The last is my favorite:

  • “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.”

Today you will have many chances to be kind to another lawyer.

Take advantage of them all.

Wellness

 

Important Updates to Judicial Emergency Order.

Yesterday, the Vermont Supreme Court amended Administrative Order 49, the order declaring a Judicial Emergency.  I urge you to read the amended order and Explanatory Note:

In short, and not as a substitute for reading the order yourself, the April 6 amendments:

  • postpone jury draws & jury trials scheduled to take place before May 15;
  • suspend the requirement to file paper copies of appellate briefs and printed cases;
  • permit the Supreme Court to hold oral argument by telephone, video, or other electronic means;
  • make important changes to the requirements related to (a) notarization of court filings; and (b) the administration of oaths at both depositions and court hearings;
  • postpone the July administration of the Vermont Bar Exam.

Competence includes reading the April 6 amendments and Explanatory Note.

The Court’s initial order and amendments:

100+ Free Update & Upgrade Images - Pixabay

Monday Morning Honors

Good morning.

You rowed through another weekend! Great job!  Not to sound like this person . . .

A look at the life of Penn rowing's coxswain | The Daily Pennsylvanian

. . . but keep rowing! It’s all we can do.

If you missed them, Friday’s questions are here.  The answers follow today’s announcements and Honor Roll.

Announcements

  • Video CLE

I recorded another video the Garage Series this weekend.  In it, I share thoughts & tips on complying with the Rules of Professional Conduct during the COVID-19 public health crisis.  Each video is approved for ethics CLE:

These add up to 2 hours of ethics CLE.   Later today, I’m recording Part 3 in the Trust Accounting Series.

  • The Championship Match

After two weeks of voting, we are down to the championship match of the inaugural Professional Responsibility & Legal Ethics tournament.  Thank you to all who have voted!  Most of you have informed me that you’ve based your votes on “which rule/concept is more important?”  The finalists:

    • Candor to the Tribunal: Rule 3.3
    • Who decides? Lawyer or Client?  Rule 1.2(a)

To vote, go to THE CHAMPIONSHIP.

For a list of results from prior rounds, go here

I’m not sure whether it’s good or bad, but the winner of the My Cousin Vinny bracket did not advance to the championship.  Speaking of that bracket, I shed but a brief tear that the collective you preferred “Did you say yutes?” over “Were these MAGIC grits?” 

Honor Roll

  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, John Marshall Law School
  • Honorable John M. Conroy, United States Magistrate Judge, District of Vermont
  • Beth DeBernardi, Administrative Law Judge, VT Dept. of Labor
  • Erin GilmoreRyan Smith & Carbine
  • Laura Gorsky, Esq.
  • Robert Grundstein, Esq.
  • Tammy Heffernan, Esq.
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • John LeddyMcNeil Leddy & Sheahan
  • Tom LittleLittle & Cicchetti
  • Kevin LumpkinSheehey Furlong & Behm
  • Jeffrey MessinaBergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Herb Ogden, Esq.
  • Jim Runcie, Ouimette & Runcie
  • Norman Smith, Esq.
  • Jay Spitzen, Esq.
  • Robyn SweetCORE Registered Paralegal, Cleary Shahi  & Aicher
  • Ashley TaylorHorsley Lajoie Goldfine
  • Jonathan Teller-Elsberg, Vermont Law School, JD Candidate

Answers

Question 1

Lawyer represented Client. The representation ended yesterday.   By rule, what must Lawyer retain for 6 years?

  • A.   Client’s file.
  • B.   a copy of Client’s file.
  • C.   a copy of the advertisement that led Client to Lawyer.
  • D.   complete records of property & funds held in trust for Client.  Rule 1.15(a)(1).

Question 2

By rule, attorneys are subject to compliance audits by disciplinary counsel.  Compliance with what?  The rule(s) on _____________________:

  • A.  trust accounting.  Rule 1.15A(b)
  • B.  keeping clients reasonably updated as to the status of their matters.
  • C.  adequately protecting client information that is stored electronically.
  • D.  file delivery.

Question 3

True or false?

Under Vermont’s rules, all conflicts of interest can be waived.

FALSE.  See, Rule 1.7(b) for a list of criteria that, if present, indicate that a conflict cannot be waived.

Question 4

Attorney called me with an inquiry.  I listened, then replied:

“For it to be okay, 3 things have to happen.  (1) It has to be in proportion to services you render, or, if not, you have to agree to assume joint responsibility for the representation; (2) the client has agree and confirm the agreement in writing; and, (3) the total has to be reasonable.”

What did Attorney call to discuss?

  • A.   a contingent fee agreement.
  • B.   entering into a limited representation agreement.
  • C.   sharing a fee with a lawyer in another firm.  Rule 1.5(e).
  • D.   settling a malpractice claim with a former client who is not represented by counsel.

Question 5

As most of you know, live sporting events are on hold.

One of the last large-scale sporting events to take place before the pandemic tightened its devastating grip was The Mint 400.  Held annually in Nevada, it’s one of the oldest & most prestigious off-road races in the country.

Raoul Duke is a fictional character.  In a famous novel, he was hired by a magazine to cover The Mint 400.  He brought his lawyer with him.  Per the novel’s, wiki entry, client and lawyer’s:

  • “job is repeatedly obstructed by their constant use of a variety of recreational drugs, including LSD, ether, cocaine, alcohol, mescaline, and cannabis. This leads to a series of bizarre hallucinogenic experiences, during which they destroy hotel rooms, wreck cars, and have visions of anthropomorphic desert animals, all the while ruminating on the decline of both the ‘American Dream’ and the ’60s counterculture in a city of greed”

Whoa.  Talk about attorney wellness!

Name the novel and the lawyer.

Novel:  Fear & Loathing in Las Vegas: A Savage Journey to the Heart of the American Dream

Lawyer: Dr. Gonzo.

Fear and Loathing in Las Vegas: A Savage Journey to the Heart of the American Dream (Harper ...

 

Five for Friday #198

It’s Friday.  Keep on rowing the boat!

As of late last night, I had a fantastic intro planned, one that would’ve allowed me to focus, however briefly, on something other than current affairs.  You see, from my preliminary research, I’d learned that April 3 is the day that Jesse James died.  I’d outlined in my mind an essay that cleverly linked legal ethics, 198, and the famed “Dead Man’s Hand.”  The latter being the cards that I’d have bet the house James was holding when he met his demise.

Bad bet.  I’d have had to move in with my brother.

Why?  Because James wasn’t shot while playing poker.  It’s Wild Bill Hickok who held “Aces & Eights” on a fateful day in Deadwood.  A day that has no connection to legal ethics, 198, or April 3.

Bummer.

I’ve spent the entire morning trying to come up with something else.  I failed. My brain is fried.  However, I learned something that, as a legal ethics nerd into tech competence, made me laugh.  These days, I’m taking all the laughs I can get.

Here’s a picture.

Long haul: the Elliott computer arrives at the Town Hall. Photo: Norfolk Record Office

It depicts a state-of-the-art Elliott 405 computer being delivered – BY FLATBED TRUCK – to a municipal office in Norwich, England.  Per this blog post, the purchase made the town “a pioneer among British local authorities applying technology.”  The date of the picture?  April 3, 1957.

Here’s another picture.

A brief history of the iPad, Apple's once and future tablet

That’s Steve Jobs holding a first generation iPad.  Apple released it to the public in 2010.

The release date? You guessed it, April 3.

I hope that most lawyers have, at the very least, upgraded to the Elliott 406.

Onto the quiz!

the-quiz

Rules

  • None.  Open book, open search engine, text-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
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

Lawyer represented Client. The representation ended yesterday.   By rule, what must Lawyer retain for 6 years?

  • A.   Client’s file.
  • B.   a copy of Client’s file.
  • C.   a copy of the advertisement that led Client to Lawyer.
  • D.   complete records of property & funds held in trust for Client.

Question 2

By rule, attorneys are subject to compliance audits by disciplinary counsel.  Compliance with what?  The rule(s) on _____________________:

  • A.  trust accounting.
  • B.  keeping clients reasonably updated as to the status of their matters.
  • C.  adequately protecting client information that is stored electronically.
  • D.  file delivery.

Question 3

True or false?

Under Vermont’s rules, all conflicts of interest can be waived.

Question 4

Attorney called me with an inquiry.  I listened, then replied:

“For it to be okay, 3 things have to happen.  (1) It has to be in proportion to services you render, or, if not, you have to agree to assume joint responsibility for the representation; (2) the client has agree and confirm the agreement in writing; and, (3) the total has to be reasonable.”

What did Attorney call to discuss?

  • A.   a contingent fee agreement.
  • B.   entering into a limited representation agreement.
  • C.   sharing a fee with a lawyer in another firm.
  • D.   settling a malpractice claim with a former client who is not represented by counsel.

Question 5

As most of you know, live sporting events are on hold.

One of the last large-scale sporting events to take place before the pandemic tightened its devastating grip was The Mint 400.  Held annually in Nevada, it’s one of the oldest & most prestigious off-road races in the country.

Raoul Duke is a fictional character.  In a famous novel, he was hired by a magazine to cover The Mint 400.  He brought his lawyer with him.  Per the novel’s, wiki entry, client and lawyer’s:

  • “job is repeatedly obstructed by their constant use of a variety of recreational drugs, including LSD, ether, cocaine, alcohol, mescaline, and cannabis. This leads to a series of bizarre hallucinogenic experiences, during which they destroy hotel rooms, wreck cars, and have visions of anthropomorphic desert animals, all the while ruminating on the decline of both the ‘American Dream’ and the ’60s counterculture in a city of greed”

Whoa.  Talk about attorney wellness!

Name the novel and the lawyer.

Bonus Question: and there’s no right or wrong answer!

I’ve been running a popular vote to decide the most important concepts and rules in professional responsibility & legal ethics.  I divided 64 rules & concepts into four brackets of 16.  Thanks to all who voted!  Today, we are down to the four winners of each bracket.  BracketsWinners:

    • Duties to Non-ClientsCandor to a Tribunal
    • Conflicts & ConfidencesAre 2 matters the same or substantially related?
    • Duties to Clients – Who Decides? Lawyer or Client?
    • My Cousin Vinny – Did you say “yutes?”

To vote in the final four, go HERE.

( This post includes pictures of each of the brackets. )

Now, for real, onto the quiz!

 

 

 

 

Civility Matters. Especially now.

I consider civility one of the 7 Cs of Professional Responsibility & Legal Ethics.  In my opinion, conducting one’s practice in a civil manner is not inconsistent with the obligations imposed by the Rules of Professional Conduct.

A seminar at the VBA’s 2019 Midyear Meeting made me realize the connection between civility & wellness.  In this blog posted the morning after the seminar, I wrote:

Indeed, nothing in the rules is incompatible with civility.  As a comment to Rule 1.3 says:

 “[t]he lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved with courtesy and respect.”

Courtesy and respect.  We need more of each in the air.

For the duration of public health crisis, we need even more of each in the air.

My first post related to COVID-19 was on March 13.  In it, I urged “all lawyers to be accommodating when considering requests from opposing counsel that are related to COVID-19.”  I’m by far from the only one, with bar associations and courts making the same request.  The good news? I’ve not heard any Vermont stories like the two I’m about to share.  Let’s hope it remains that way.

Each story comes from the same federal court in South Florida.  The ABA Journal covered both.

In the first, also reported by Law360 , a federal magistrate had to intervene in a discovery dispute.  Here’s part of the magistrate’s order.

  • “If all the issues we are currently facing were to be organized on a ladder of importance, this deposition-scheduling dispute would not even reach the bottom rung of a 10-rung ladder. It is painfully obvious that counsel for both sides failed to keep their comparatively unimportant dispute in perspective. Would the world end if the corporate deposition did not occur next week? Obviously not.”

The rest of the order doesn’t reflect any better on the lawyer’s involved.

A few days later, the same magistrate issued an order in a different case. I’m not a fan of block quotes, but this order is better read than described.  As reproduced by the SDFLA Blog:

Given the global COVID-19 pandemic, it is hardly surprising that Plaintiff filed a motion to extend the mediation and discovery deadlines and all related deadlines and to reschedule the special set trial date.

Plaintiff’s motion represents that Defendant objected to the request. That’s right. Defendant objected to what appears to be a realistic and common sense motion to reschedule the trial and other deadlines. I had to read the certification twice in order to make sure that I was reading it correctly. 

If the motion is correct, then Defendant wants to push forward with the existing trial date and all trial-related deadlines even though no one has any idea when the Court will be able to safely resume jury trials (or when it will be safe to travel by air, to return to work or to get closer than ten feet to anyone).

Rather than guess at defense counsel’s motivation, the Undersigned requires defense counsel to by March 26, 2020 file a double-spaced memorandum explaining (1) whether he did, in fact, oppose the motion to reschedule the trial and enlarge trial-related deadlines and the mediation deadline, and (2) all the reasons justifying his opposition (assuming that he did actually advise Plaintiff’s counsel that he opposes the motion).

If defense counsel opposed the motion, then he is best advised to provide a comprehensive and rational explanation. Before filing this response, though, defense counsel may want to brush up on the concepts of karma, goodwill, grace, compassion, equity, charity, flexibility, respect, spirituality, selflessness, kindness, public spirit, social conscience, and empathy.

No reply absent further Court Order. Signed by Magistrate Judge Jonathan Goodman on 3/25/2020.”

Again, I’ve not heard any Vermont stories on par with these.  Still, I blog as a reminder that there’s a line between acting reasonably to provide clients with competent & diligent representation and using the public health crisis to gain an advantage.

Where is that line?

I don’t know.

But, in searching for it, we could fare worse than to be guided by Judge Goodman’s words.  Whatever we do, let’s not forget “the concepts of karma, goodwill, grace, compassion, equity, charity, flexibility, respect, spirituality, selflessness, kindness, public spirit, social conscience, and empathy.”

That’s civility.  And civility is part of wellness.

Related posts:

wellness

 

 

 

 

 

 

 

 

 

Most Important? We are down to 8!

And then there were 8!

Ten days ago, I created the Professional Responsibility & Legal Ethics Tournament. I matched up 64 rules & concepts associated with PR and legal ethics in an NCAA-style bracket.  Ever since, you’ve voted, and we are down to the Elite 8 rules & concepts.  Winners of this round will advance to an historic Final Four.

To vote, go to ELITE 8.

IMG_4678

As the picture shows, this tournament is intentionally low-tech.  Meaning, “no tech.”  Except for the videos referenced below.  If I must say so myself, the videos are jam-packed with hot tips on legal ethics!

This morning, I posted Briefly: what matters most in legal ethics?  In it, I distilled each of the then 16 remaining rules & concepts to a single thought.  For each of today’s 8 winners, here’s the thought I shared this morning.

1.  DUTIES TO NON-CLIENTS

Candor to a Tribunal vs. Social Media: Looking, Friending & Scrubbing

  • The integrity of the system requires that judges not be misled by false evidence.
  • Evidence must not be unfairly located, obtained, concealed, or destroyed.

2.  CONFLICTS & CONFIDENCES

Screening/Imputed Conflicts vs. Same or Substantially Related Matters?

  • Fairness includes strict measures to prevent improper sharing of confidential information.
  • A lawyer cannot switch sides.

3.  TRUST ACCOUNTS, FEES and DUTIES TO CLIENTS

Who Decides? Lawyer or Client? vs. Tech Competence

  • The client chooses the destination, the lawyer the route.
  • It’s 2020.

4.  MY COUSIN VINNY

Were these MAGIC grits?  vs. Did you say “yutes?”

  • On cross, know your facts.
  • What was that your honor?

Again, to vote, go to ELITE 8.

For more, including four 15-minute videos analyzing the rules & concepts in each of the tournament quadrants, go here.  Where else can you get at least 16 tips on professional responsibility & legal ethics in 15 minutes from a speaker sitting at his Garage Bar?!?!

#prmadness

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