Reruns

Remember reruns?  In the age of streaming content, I don’t know if reruns are even a thing anymore.  If not, good riddance!!

Seriously, was there anything as disappointing as waiting all week for the next episode of your favorite show only to have it be a rerun?

Aside: yes, we used to have wait all week for the next episode of our favorite shows.

As much as I despised reruns as a viewer, I love them as a blogger.  They’re the perfect antidote to writer’s block. So, here goes.

The VBA’s Tech Day is next month.  The agenda is fantastic.  It includes seminars on several topics upon which I’ve blogged in my nauseating ongoing effort to remind lawyers that the duty of competence includes tech competence.

Missed my posts?  Thank goodness for reruns.

Last October, I posted Competence, ESI, and E-DiscoveryIt referenced several topics, including:

  • admitting social media posts into evidence;
  • an attorney’s duties related to a client “taking down” or “scrubbing” social media posts;
  • practical tips on preservation letters regarding ESI.

VBA Tech Day includes seminars on each.

Last September, I posted Protecting Data: Cybersecurity TipsI followed up in February with  ABA Journal Provides Cybersecurity TipsEach post refers back to my post on the electronic transmission & storage of client information: The Cloud: What are Reasonable Precautions? Indeed, I’ve often blogged on Encryption & The Evolving Duty to Safeguard Client Information.

VBA Tech day includes seminars on encryption, cybersecurity, & data security.

Finally, I’ve blogged on using technology to become more efficient.  My post Fees. Is there an App for that? refers to an ABA Journal post that discusses how technology can help lawyers bill more than 2.24 hours per day that, on average, they currently bill.  And, in Tech Competence: It includes more than you might think, I cautioned that a lawyer who isn’t competent in basic tech runs the risk of violating Rule 1.5 by over-billing clients.

VBA Tech Day includes seminars on using technology to become more efficient at billing.

I think the networks might have used reruns to build anticipation for the final few episodes of a show’s season.  Most of those episodes ran in May.

Well, I’ve posted some reruns here today. Hopefully they build anticipation for VBA Tech Day.  A terrific conference on tech-related issues that will take place in, you guessed it, May.

See the source image

 

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Disciplinary Hearings & Sanctions: The Process.

Last summer, I posted this overview of the Vermont Professional Responsibility Program. Lately, more than a few folks have asked how the Court and the PRP’s hearing panels determine the sanction to impose in any particular case.  Here’s how the entire hearing process works.

1.  Disciplinary Counsel Initiates Formal Proceedings

As most of you know, I screen all complaints.  If the conduct at issue “appears to constitute misconduct that may require disciplinary sanctions,” I refer the complaint to disciplinary counsel for a formal investigation.

Upon concluding an investigation, the rules authorize disciplinary counsel to do one of three things:

  1. dismiss the complaint;
  2. initiate a formal disciplinary or disability proceeding ; or,
  3. refer the complaint to the non-disciplinary dispute resolution program.

Formal disciplinary proceedings can be initiated in two ways.

One way is for disciplinary counsel to file a “petition of misconduct.”  A petition of misconduct is the PRP’s version of a charging document.  By rule, disciplinary counsel cannot file a petition of misconduct without first requesting a hearing panel of the Professional Responsibility Board to review her decision to do so for probable cause.

If a petition is filed, the rules allow the respondent 20 days from service to file an answer. Then, the parties have 60 days to take depositions and respond to reasonable requests for production of non-privileged documents and evidence.  Other discovery methods are prohibited.

The other way to initiate formal disciplinary proceedings is for disciplinary counsel and the respondent to file a “stipulation of facts.”  Then, the parties can either join to recommend conclusions of law & a sanction, or, they can make their own recommendations on each.

There are some other wrinkles in the process, but this is the basic way in which formal disciplinary proceedings are initiated.  Which brings us to the next step: the panel’s decision.

2.  The Hearing Panel Makes a Decision

Once formal proceedings are initiated, the case is assigned to a “hearing panel.”  A hearing panel is the PRP’s equivalent of a trial court.  There are 9 standing panels throughout Vermont.  By rule, each must consist of 2 lawyers and 1 non-lawyer.

If formal proceedings are initiated by petition of misconduct, the hearing panel schedules a hearing.  Disciplinary counsel must prove a violation by “clear and convincing” evidence.  Upon request, the panel may bifurcate the hearing: one on whether the respondent violated the rules, a second (if necessary) on sanction.

If formal proceedings are initiated by stipulation, the hearing panel is not required to hold a hearing.  However, it’s usually only in cases where the parties join to recommend a particular sanction, and the panel agrees, that a panel will issue a decision without holding a hearing.

In any case, no matter how initiated, a hearing panel’s first task is to determine whether disciplinary counsel’s evidence or the stipulated facts clearly and convincingly establish a violation of the Rules of Professional Conduct.  In the trade, this is known as making “findings of fact and conclusions of law.”  If  a panel concludes that the facts clearly and convincing establish a violation of the rules, the panel must impose a sanction.

3.  The Hearing Panel Imposes a Sanction.

I’m not going to provide cites or rehash opinions.  For the purpose of this post, here’s what the Supreme Court has said about the sanction in an attorney discipline case.  The purpose:

  • is to protect the public from harm;
  • is to maintain public confidence in the bar;
  • is NOT to punish the lawyer.

By rule, a hearing panel has 4 options. They are:

  • Admonition: (does not identify the lawyer or impact the lawyer’s privilege to practice)
  • Reprimand: (identifies the lawyer, but doesn’t impact the lawyer’s privilege to practice)
  • Suspension: (identifies the lawyer and suspends the lawyer’s privilege to practice)
  • Disbarment: (identifies the lawyer and suspends the lawyer’s privilege to practice)

So, how does a panel choose?  I’m glad you asked.

Many years ago, the ABA’s Center for Professional Responsibility published Standards for Imposing Lawyer Sanctions.  The Vermont Supreme Court has indicated that the ABA Standards guide the sanction determination.

Initially, the ABA Standards require an analysis of 3 factors:

  1. the duty violated;
  2. the attorney’s mental state; and,
  3. the actual or potential injury caused by the misconduct.

This analysis results in a “presumptive sanction.”

For example, let’s imagine a lawyer violates the duty of candor to a client.  Here’s what the ABA Standards say, with the mental state in red and the injury in purple.

  • Disbarment is generally appropriate when a lawyer knowingly deceives a client with the intent to benefit the lawyer or another, and causes serious injury or potentially serious injury to a client.”
  • “Suspension is generally appropriate when a lawyer knowingly deceives a client, and causes injury or potential injury to the client.”
  • Reprimand is generally appropriate when a lawyer negligently fails to provide a client with accurate or complete information, and causes injury or potential injury to the client.”
  • Admonition is generally appropriate when a lawyer engages in an isolated instance of negligence in failing to provide a client with accurate or complete information, and causes little or no actual injury to the client.”

So, if a lawyer violates the duty of candor to a client, does so knowingly, and causes injury or potential injury, the presumptive sanction is a suspension.

Once a panel arrives at presumptive sanction, the panel weighs any aggravating and mitigating factors.

Aggravating factors include things like:

  • prior disciplinary violations;
  • a dishonest or selfish motive; and,
  • substantial experience in the practice of law.

Mitigating factors include things like:

  • no prior violations;
  • remorse;
  • a timely & good faith effort to rectify the consequences of the misconduct; and
  • inexperience in the practice of law.

The aggravating & mitigating factors can lead a panel to increase or decrease the severity of the presumptive sanction.  It’s similar to the sentencing process in federal criminal cases: there can be upward & downward departures.

Finally, the hearing panels often conduct what is known as a “proportionality analysis.”  That is, the sanction is compared to sanctions imposed in previous cases, usually those involving similar misconduct.

In the end, a sanction issues.

4.  There is an Appeal or the Supreme Court Orders Review.

Whenever a hearing panel issues a decision, both disciplinary counsel and the respondent have 30 days to appeal to the Vermont Supreme Court.  Even if neither appeals, the Court may order review on its own motion. The normal appellate rules apply.

The Court upholds a hearing panel’s findings of fact unless they are “clearly erroneous.”  A panel’s conclusions of law are upheld if “clearly & reasonably supported by the evidence.”  When it comes to sanction, however, while the Court affords deference to a panel’s decision, the Court makes its own determination as to the ultimate sanction.

5.  Oh yeah, a few other things.

There are two types of suspensions: short & long.

A “short” suspension is one that is fewer than 6 months.  By rule, short suspensions end of their own volition and the lawyer may immediately resume practice.

A “long” suspension is one that is that is at least 6 months. By rule, a long suspension cannot be longer than 3 years.  A lawyer suspended for 6 months or longer must petition for reinstatement.  At a reinstatement hearing, the lawyer bears the burden of proving such things as rehabilitation and that reinstatement would not be a danger to the public. The lawyer may not resume practicing until the reinstatement petition is granted.

Finally, like most other jurisdictions, Vermont does not have “permanent disbarment.”  By rule, disbarment is for 5 years.  After 5 years, a disbarred attorney may petition for reinstatement.

So, there you have it.  The hearing process, including the sanction determination, in a nutshell.

May this be the only time that you need to know any of this.

For more detail, please visit Supreme Court Administrative Order 9: Permanent Rules Governing Establishment and Operation of the Professional Responsibility Program.

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Five for Friday #113

Welcome to #113!

#113 on Friday the 13th?  Whoa.

Unlike Michael Scott, I’m not just a little stitious.  I am super stitious.

Take the quiz at your own peril!

Most of my superstitions involve sports or eating.  I’m not going to go into great detail about them.  I suppose I could simply tell you that, like birthday wishes, it’s bad luck to share superstitions.

Of course, that would be a lie.  It is not bad luck to share superstitions.  And one of my superstitions is that it’s bad luck to lie about superstitions.  So, I’ve no choice but to confess the true reason that I’m not going to go into great detail about my superstitions:

I don’t feel like blogging today.

(echoes of “hallelujah!” are reverberating throughout the Champlain Valley)

Suffice to say, the Red Sox likely wouldn’t have won the 2004 World Series had I not stood while they were in the field and sat while they batted during the final 3 gut-wrenching games of the ALCS against the Yankees.

Oh, and if you want to ensure the best possible meal when eating at a restaurant, keep the following in mind:

  • order last;
  • don’t tell anyone what you’re going to order;
  • have a few options, because it’s horrible luck to order the same thing as someone else with whom you’re eating.

Trust me.

These things are endearing when you first get to know me.  Not so much as our relationship evolves.  At least that’s what I’ve been told.

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

How about a 50/50 to start?

There’s a rule that “a lawyer shall not engage in undignified or discourteous conduct which is degrading or disruptive to a tribunal.”

Does the rule apply to depositions?

Yes or no.

Question 2

By rule, when must a lawyer provide a client or third person with a full accounting of funds or property that the lawyer held for the client or third person?

  • A.  upon request by the client or third person
  • B.  upon the termination of the representation
  • C.  monthly
  • D.  regularly

Question 3

True or false.

In an ex parte proceeding, a lawyer does not have a duty to inform the tribunal of material facts that are adverse to a client’s position.

Question 4

Lawyer works at Firm.  In addition, Lawyer often provides short-term legal services under the auspices of programs sponsored by nonprofits and a local court.  When providing such services, neither Lawyer nor clients have an expectation of continuing representation.

As such, while providing the short-term legal services,

  • A.  Lawyer’s duty of competence is relaxed.
  • B.  The trust accounting rules do not apply.
  • C.  Client’s statements to Lawyer are not confidential.
  • D.  The conflicts rules are relaxed.

Question 5

When you believe in things that you don’t understand, then you suffer.  Superstition ain’t the way.

Johanan Vigoda was a lawyer.  In 1971, Vigoda helped a client who was a musician to negotiate a contract with a record company.  Per the terms of the contract, the musician had to pay 6% in royalties to Vigoda indefinitely & forever, including to Vigoda’s heirs after Vigoda’s death.

Vigoda died in 2011.  In 2013, the musician learned that the record company was still making royalty payments to Vigoda’s widow.  The musician ordered the payments to stop.  The musician sued, seeking an order that he was not required to continue to pay royalties beyond Vigoda’s death.  The musician claimed that Vigoda had duped him into signing the contract, never telling him that it called for “forever” royalty payments.

Vigoda’s widow counter-claimed.  She claimed that Vigoda’s regular practice was to read the terms of any proposal, agreement, or contract to the musician. Thus, she alleged that the musician had agreed to and signed the contract after Vigoda read it to him.   She sought more than $7 million in royalty payments that had not been made between 2013 & 2015.  Last summer, the musician and Vigoda’s widow settled the dispute.

Name the musician.  (the writing should be on the wall.)

the-quiz

 

 

 

 

Got Tech Competence? The VBA Does.

Last week, the Professional Responsibility Board voted to recommend that the Vermont Supreme Court follow the lead of ABA and 31 other states and adopt a duty of tech competence.  Specifically, the Board voted to recommend that the Court amend Comment 6 to Rule 1.1 to read as follows:

  • “[6] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes to the law and its practice, including the benefits and risks associated with the technology relevant to the lawyer’s practice, engage in continuing study and education and comply with all legal education requirements to which the lawyer is subject.”

I’ve blogged a zillion times on tech competence.  Yes, a zillion.  Remember, puffery isn’t unethical.

I’ve also blogged that lawyers shouldn’t fear tech, but embrace it.  And here’s a chance to do exactly that!

Next month, the Vermont Bar Association is presenting its first ever Tech Day.  It looks like a fantastic event.  For more, go here.  Or, read the VBA announcement below.

Remember: amendment or not, Competence includes Tech Competence!

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REGISTER HERE

VIEW FLYER HERE

If one of your goals this year is to learn all there is to know about using technology in your law practice, then this is the place to be! Whether it’s cloud computing, automating your law practice, emerging tech trends, security, office IT, e-discovery, encryption, social media evidence, billing or digital forensics and more, we’ve got you covered.

Our Tech Show CLE Seminars cover the topics you need to know to get your law firm up to speed with current legal technology tools. Technology can streamline your law practice and save you time and money on top of ensuring you are competent in your practice. As Bar Counsel Mike Kennedy often says, legal competence includes tech competence.

Of course, there’s much more to our Tech Show than the educational sessions. We have built in plenty of time to view demos, get personalized recommendations and network with our Sponsors and Exhibitors as well as to mingle with your colleagues at our luncheon and reception.

And last, by not least, you’ll find all the inspiration you need to streamline and prosper from our Keynote Speakers, Brian Kuhn of IBM Watson Legal and Edward Hartman, Co-Founder of Legal Zoom.

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tech-ethics

 

When does a rounding error become an unreasonable fee?

Rule 1.5(a) prohibits a lawyers from making an agreement for, charging, or collecting an unreasonable fee.  I’ve often mentioned that the Professional Responsibility Program receives few, if any, complaints about fees.  Indeed, my quick research reveals that the last disciplinary decision involving Rule 1.5(a) issued in October 2002.

Still, it’s good to know what’s good and what isn’t.

Undoubtedly, you have at least one friend or relative who frequently announces how wonderful it would be to be a lawyer, if only to bill 6 or 15 minutes for a quick phone call. Earlier today, I stumbled across two cases that shed some light on that exact issue.

The ABA Journal and the Legal Profession Blog covered a recent decision from the Wyoming Supreme Court.  The decision involved a client’s challenge to a firm’s practice of billing in 15 minute increments.  The Court concluded that, on the record before it, the evidence supported a conclusion that the firm’s billing practice was not unreasonable.

In its decision, the Court distinguished the case from one it decided in 2014.  It’s the 2014 decision that prompted this blog.

The 2014 case is here.  The lawyer’s license was suspended 30 days for, among other things, charging an unreasonable fee.  More specifically, the Court concluded that the lawyer violated Rule 1.5(a) by billing in 15 minute increments for tasks that, quite simply, did not take even close to 15 minutes to complete.

If your typical practice is to bill in minimum increments, the decision is worth a read.  A quick summary:

  • An attorney’s use of a minimum billing increment is not, standing alone, a violation.
  • Billing for work that was not done is a violation.
  • Double-billing for the same work is a violation.

In the abstract, those 3 statements don’t (and shouldn’t) seem surprising.

What’s key is to take a look at what the lawyer did.  Remember, per the fee agreement, she billed her client in minimum 15-minute increments.  The lawyer wrote down each task as it was completed.  If the task did not take at least 15 minutes, she did not record how long it actually took.  Thus, every single task was billed as having taken at least 15 minutes.  Among other things, the lawyer:

  • “routinely billed .25 hours to sign such documents as subpoenas, stipulated orders, and pleadings.”
  • regularly billed the client .25 hours for reviewing one-page scheduling orders, one-page pleadings, and one-page letters.
  • often billed the client .25 hours to review a document and another .25 hours to sign it.

Again, it wasn’t the minimum billing increment that resulted in the sanction.  Rather, per the Wyoming Supreme Court, an attorney’s billing practices necessarily involves application of “billing judgment.”  That is, an exercise of professional judgment demonstrated by “writing off unproductive, excessive, or redundant hours.”

On this issue, the Court concluded that the lawyer’s “practice of billing 15 minutes for such tasks as signing subpoenas, stipulated orders, and one page letters demonstrated a complete failure to exercise business judgment, which would have required her to write off unproductive, excessive, or redundant hours.”

To be very clear: I am not telling you that a minimum billing increment violates Rule 1.5(a).  I am, however, telling you that at least one Supreme Court has concluded that, if abused, the practice can lead to an unreasonable fee.

 

Dollar Sign

 

Monday Morning Answers: #112

Good morning! Friday’s questions are here.  Aunt Kate would’ve needed her sunglasses as she walked east on Pearl to Abernathy’s this morning.  Alas, and sadly, even though it’s April 9, she also would’ve need her hat, scarf, and mittens.

Spoiler alert: the answers follow today’s Honor Roll.

Honor Roll

(hyperlinks when available.  lack of a link doesn’t reflect a lesser score or lower honors)

Answers

Question 1

Which is a rule?

When lawyers are associated in a firm:

  • A.  only one may have signature authority on a trust account.
  • B.  each is professionally liable for the misconduct of any other.
  • C.  none of them has a duty to report the misconduct of any other.
  • D.  none of them shall knowingly represent a client when any one of them would be prohibited from doing so by the conflict rules, unless the conflict is a personal one and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.  

That is Rule 1.10(a).

Question 2

Many lawyers advertise.   Indeed, an exception to a rule allows a lawyer to “pay the reasonable costs of advertisements.”   It’s one of the exceptions to the rule that prohibits a lawyer from:

  • A.  Giving anything of value to a person for recommending the lawyer’s services.
  • B . Direct contact with prospective clients.
  • C.   Using a misleading firm name.
  • D.  All of the above

Option A is an exception to Rule 7.2(b)’s prohibition on giving anything of value to a person for recommending the lawyer’s service.  Choices B & C are in different rules.

This is a good time to post this reminderReferral Fee? Think Thrice.

Question 3

Fill in the blank. (verbatim)

There’s a rule that prohibits a lawyer involved in the investigation or litigation of a matter from making “____________________ that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”

  • A.   Any statement
  • B.   An extrajudicial statement
  • C.   A statement during jury selection
  • D.  A social media post.

Rule 3.6(a).  The key word is “extrajudicial.”   

.Question 4

Attorney represents Client in matter vs. Litigant.  Litigant is self-represented and does not have a lawyer.

The matter is close to resolving.  Attorney has reduced a proposed settlement to writing.  Attorney shows it to Litigant.  Litigant asks Attorney what paragraph 2 means.

True or False:  Vermont’s rules authorize Attorney to explain Attorney’s view of the proposed settlement and Attorney’s view of the underlying legal obligations created by paragraph 2.

TRUE.  See, Rule 4.2, Comment [2] (“So long as the lawyer has explained that the lawyer represents an adverse party and is not representing the person, the lawyer may inform the person of the terms on which the lawyer’s client will enter into an agreement or settle a matter, prepare documents that require the person’s signature, and explain the lawyer’s own view of the meaning of the document or the lawyer’s view of the underlying legal obligations.”)

Question 5:

Alan Page was elected to the Minnesota Supreme Court in 1992 and served until reaching mandatory retirement age in 2015.  When first elected, Page had been working for several years as an Assistant Attorney General in Minnesota.

I often blog on the duty of competence.  Prior to becoming a lawyer, Page excelled in a different profession.  Indeed, as a member of the famed “Purple People Eaters,” Page was among the most competent ever to do that particular job.

What was Page’s job prior to becoming a lawyer.

Alan Page was a professional football player. He was the NFL MVP in 1971 and is in the Pro Football Hall of Fame.  Page was a defensive lineman for the Minnesota Vikings (and, at the end of his career, for the Chicago Bears.)  The “Purple People Eaters” were the defensive line for the Vikings teams that went to 4 Super Bowls in the 70’s.

See the source image

 

See the source image

Five for Friday #112

Welcome to #112!

I’ve blogged on winning your 3 feet of influence.  Well, something that happened 112 years ago reminds me of how important those 3 feet are.

112 years ago, Katherine Charlotte Flynn was born.  She was my father’s aunt on his mother’s side.  By traditional measure, she had a simple, unremarkable life.  But, to my dad and his brother & sister, nobody may have been as important.

Aunt Kate grew up in Essex.   Almost immediately upon graduating from high school, she moved to Burlington and took a job as a bookkeeper at Abernathy’s.  Abernathy’s was a big, multi-level department store  at 1 Church Street – literally, the top of the block.  My cousin Kathleen reminded me how excited we (the cousins) would be to visit Aunt Kate at work.  Her office was on the top floor and we’d climb over each other in the elevator to try to be the one who got to push the button for “Aunt Kate’s floor.”

Aunt Kate worked there for 56 years.  Monday thru Friday, half-day on Saturday.

56 years.

One thing that I love about my job is its location.  I’m in the Costello Courthouse which, now, is on Cherry Street.  Of course, for many years, the entrance was on the corner of Pearl & South Champlain.   Why’s that matter?

The corner of Pearl & South Champlain is about .25 miles from where Abernathy’s used to be. It’s also about .2 miles from the house on Front Street that it took Aunt Kate about 20 years to save to buy.  Again, why’s that matter?

Well, Aunt Kate never owned a car.  She walked to work.  Every day for 56 years. Most days, she also walked home for lunch.  My office is on her route.  For whatever reason, I get a great deal of personal satisfaction knowing that the walk from my car to my office is almost exactly the walk that Aunt Kate made for all those years.

Aunt Kate had a sister named Helen.  Helen was my grandmother. She married a guy named Edmund Kennedy. Together, they had 3 kids.

Helen & Ed weren’t quite as stable as Aunt Kate.  As we Irish say, they spent a lot of time in their cups.  My grandparents’ fight with alcohol sapped them of stability long before it sapped them of life itself. Suffice to say, but for Aunt Kate providing stability, my dad & his siblings likely would’ve had much different lives.

And if it took 56 years of walking to work 6 days a week, scrimping & saving the entire time, well, then that’s what it took.  My cousin Kevin remembers one of Aunt Kate’s favorites:  cold, baked bean sandwiches.  Thinking back now, that was probably part of the scrimping & saving.

I’m pretty sure she was part leprechaun.  In her sensible pumps undoubtedly purchased from Mr. Adams, she might have been 4’8.  And that’s probably generous.  As my cousin Peter recalls, we’d race inside to see her on visits – just to stand back-to-back with her. For us, Aunt Kate was the first adult we were ever taller than.

She was surprisingly strong for such a bitty thing.  The last several years of her life, Aunt Kate needed help getting around.  It usually took 2 cousins to get her in & out of cars or up porch steps.  I can remember my arm nearly breaking as Aunt Kate held on in pure fear as we shuffled her around.  In fact, I wince in pain as I imagine how desperately she must’ve held on to my cousins Beth & Katie as they dragged her across a busy street in Montreal after Aunt Kate froze – literally – while crossing in traffic.

So many more memories.

  • The disgusting odor of the deviled eggs she’d make for every single family function.
  • The amusing fact that, in her mind, ambrosia salad was an appropriate side for every single meal – including Thanksgiving & Easter.
  • The front room that nobody was allowed to enter no matter how crowded it got in her teeny living & dining rooms.  (I used to tell her we’d put her in the front room for her wake . . . and that we’d try not to forget she was out there when we left.)
  • Trying to solve the rebus puzzles on the bottle caps of her favorite – Ballantine Ale.
  • Her work as the  unofficial treasurer of the old “Fightin’ Third” Ward.  She was never shy to announce that she’d never once voted Republican (except maybe for Denny Delaney. I think she had a crush on him).
  • A house that was literally a playground with its own snack bars: Battery Park, Beansie’s, and Sadie’s each were within shouting distance.
  • Her hand-drawn eyebrows.

I loved Aunt Kate. She  made me smile and laugh, and most of my memories of her are of her laughing.  She’d laugh so hard that she couldn’t speak. Her eyes would get really bright and crinkle up around the edges. Then, even after stopping, she’d look at you for a few seconds, then burst into another round of uncontrollable laughter.

But it wasn’t all laughter.  There were some things about which she was very strict.  My brother and my cousin Katie have very clear memories of “NO SWEEPING AFTER DARK!” and “NO RED DRESSES TO WORK!”  Like, those things actually made Aunt Kate very mad. For real.

And she couldn’t stand Roger Clemens.  Why?  Who knows.  But my brother lived with Aunt Kate for a while and she was never happy when he’d watch the Sox and Clemens was pitching.  She’d spend whole games making little faces mocking him.  Yes, making faces at an athlete on TV.  At the time, she was 84 or 85.

As I proof-read this post, it worries me that it doesn’t come close to doing Aunt Kate justice.  In a sense, by one manner of scoring, her life didn’t add up to a lot: a girl moved from the farm to the city, took a job, worked, went to church, retired, died.

But I think that some lives can’t be scored.  Or maybe the score doesn’t become final until long after the life has ended.  That’s Aunt Kate.  She died in 2003, but she’s still earning points.  Her life might not have been remarkable, but she was a superstar within her 3 feet.

When she was in her 90’s, the time came for Aunt Kate to move to a nursing home.  She was living in Milton, near my aunt, having moved out of her beloved Old North End several years prior.  My cousin Katie was there when they told Aunt Kate she’d have to go to the nursing home.  Aunt Kate was quiet for a few moments, so Katie asked if she was ok.

“Of course I’m ok!  God didn’t make me Irish for nothing you know!!!”

Aunt Kate.  When I walk from the office to the parking garage later today, I hope to follow in her footsteps.  Literally and figuratively.

shamrock

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

Which is a rule?

When lawyers are associated in a firm:

  • A.  only one may have signature authority on a trust account.
  • B.  each is professionally liable for the misconduct of any other.
  • C.  none of them has a duty to report the misconduct of any other.
  • D.  none of them shall knowingly represent a client when any one of them would be prohibited from doing so by the conflict rules, unless the conflict is a personal one and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.

Question 2

Many lawyers advertise.   Indeed, an exception to a rule allows a lawyer to “pay the reasonable costs of advertisements.”   It’s one of the exceptions to the rule that prohibits a lawyer from:

  • A.  Giving anything of value to a person for recommending the lawyer’s services.
  • B . Direct contact with prospective clients.
  • C.   Using a misleading firm name.
  • D.  All of the above

Question 3

Fill in the blank. (verbatim)

There’s a rule that prohibits a lawyer involved in the investigation or litigation of a matter from making “____________________ that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”

  • A.   Any statement
  • B.   An extrajudicial statement
  • C.   A statement during jury selection
  • D.  A social media post.

.Question 4

Attorney represents Client in matter vs. Litigant.  Litigant is self-represented and does not have a lawyer.

The matter is close to resolving.  Attorney has reduced a proposed settlement to writing.  Attorney shows it to Litigant.  Litigant asks Attorney what paragraph 2 means.

True or False:  Vermont’s rules authorize Attorney to explain Attorney’s view of the proposed settlement and Attorney’s view of the underlying legal obligations created by paragraph 2.

Question 5:

Alan Page was elected to the Minnesota Supreme Court in 1992 and served until reaching mandatory retirement age in 2015.  When first elected, Page had been working for several years as an Assistant Attorney General in Minnesota.

I often blog on the duty of competence.  Prior to becoming a lawyer, Page excelled in a different profession.  Indeed, as a member of the famed “Purple People Eaters,” Page was among the most competent ever to do that particular job.

What was Page’s job prior to becoming a lawyer.

 

 

Disclosing Information that is Public Record

Regular readers know that I’ve often blogged on the distinction between information that is “generally known”and information that is “public record.”  For further reading, please see:

Last week, I posted a blog that looked at the other side of the coin.  That is, the side that believes that the First Amendment prohibits a state from sanctioning a lawyer who discloses information that is public record.  The post is here.   In it, I linked to a poll.

The post generated more than 300 views.  However, fewer than 10 people took the poll. Nearly as many complained that the post was too long.  It makes me laugh out loud – literally – that someone takes the time to send me an email complaining that a blog post that they chose to visit is too long.

While few took the poll, several sent me substantive comments.  Also, Jim McCauley, left a comment on the post itself.

Of the comments sent to me, the one that resonated most came from a reader who isn’t a lawyer.  Here it is:

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Layman’s view here…free opinion so you know what it’s worth.  In my view if it’s in the public record, it’s public.  It’s fair game.  It’s within the rules to comment on it as you will.  

It’s ethical.

But that’s not what we come to your blog for Mr. Kennedy.  We come to your blog to discuss the Rules for Professional Responsibility.  And it is my opinion that it is neither professional nor is it responsible for an attorney to blog, comment, write about, or discuss the specific affairs of a former or current client regardless of whether the information is in the public record or not.  

When a client hires an attorney they expect, reasonably or not, that that attorney will be loyal, above and beyond all. Disputes are often fraught with deep emotion.  Having your own attorney air your linen out in the public square, regardless of the result of the court process, breaches this expectation and undermines the high regard in which most attorneys are held. 

There are a few situations where something that is within the rules just shouldn’t be done.  This is one. 

Which brings me to another point:  The rules represent not the pinnacle but the bottom floor for professional conduct.  The minimum standard.  What you’re supposed to be doing anyway.   

I defer for illustration to a comedy piece by Chris Rock here.  Paraphrasing, Rock says he’s tired of people taking credit for things they are supposed to be doing anyway.  Phrases like “I pay my child support” or “I”ve never been in jail”, don’t impress him.  “You’re supposed to be paying your child support”!”  “You’re not supposed to be in jail”.  “You don’t get any extra credit for that!”.  

He says it much better than I write it here but the principle is the same. 

It’s up to lawyers not to do the minimum; meet the bottom standards.  They should be aspiring to surpass them.  That’s responsible.  That’s professional.    
 

Just my 2 cents.

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I don’t know that I’ll blog much more on this topic.  I’ve laid out the arguments. Fortunately, it’s rare that the PRP receives a complaint that alleges an unauthorized disclosure confidential information. In fact, I can’t even remember the last.  That’s a good thing.

Returning to the hypo I posted a while back, I don’t know whether the Vermont Supreme Court would conclude that the 1st Amendment prohibits sanctioning my attorney for disclosing information from my 2006 divorce that, while public record, is not generally known. However, I know that it’d bother me to no end to learn that my attorney had posted a blog with the embarrassing details of my case.

Now, I know what you’re thinking, and it’s not anything to do with Rule 1.6, Rule 1.9, or the 1st Amendment.  Nope.  You’re thinking “wait, Mike got divorced in 2006?”

Heeding my own advice, I intend to take full advantage of this opportunity to say nothing at all.

 

Be Quiet