Wellness Wednesday: Mentoring

At last week’s YLD Thaw in Montreal, I had the opportunity to moderate a panel discussion on attorney wellness.  Three lawyers shared personal & moving stories.  One described how substance abuse almost kept him from entering the profession, while two recounted experiences that nearly drove them from the profession.  Experiences inextricably linked to stress, anxiety and depression.

The presentation was well-received.  Several lawyers have contacted me since to express an interest in “the next step.”  That is, it seems we’ve arrived at a point where everyone agrees that wellness is an issue that is impacting the profession.  Now, it’s time to move beyond raising awareness.  It’s time to provide lawyers with tools and techniques to achieve and maintain well-being and wellness.  I received a few great ideas from the lawyers who reached out.  Today I’ll focus on one: mentoring.

This morning, a young lawyer sent me an email in which she thanked me for incorporating wellness into so many of the CLEs that I present.  She wrote that it “is important that we make space within the profession to raise awareness of issues such as those the panel brought up.”

It’s what she wrote next that struck me:

  • “I hope in the future we can have further discussion on how to be the change we wish to see in the profession…managers and mentors, in my opinion, need to lead the charge.”

She’s right.  We who’ve been around must help younger lawyers manage the stress that the profession brings.  And there’s no better time to do so than now.

January is National Mentoring Month.  I’ve previously urged lawyers to consider serving as mentors for new attorneys.  Indeed, it’s a concept that can be traced back to one of the original expressions of our professional duties.

Of course, mentoring need not be formal.  It can be as simple as checking in with the younger lawyer in your firm. The lawyer who, like you once were, is overwhelmed and reluctant to ask for help.

Be the help that we want the profession to provide. There might be no more important form of mentoring.

For more, check out the mentoring resources that the American Inns of Court made available on its site.   And, for more general information on creating a workplace that values well-being & wellness, don’t forget two incredibly helpful resources:

Image result for national mentoring month

Monday Morning Answers #188

Happy Monday!

Friday’s questions are here. Today, the answers follow the honor roll.  But first . . .

. . . today we honor Martin Luther King, Jr.  In the introduction to Friday’s quiz, I reiterated a point I’ve made before: when it comes to addressing the most the problems that most affect the legal system & profession, I believe that the collective we are too often too quick to eschew small things that will result in incremental improvement. We prefer great solutions that fix everything at once. Our response to the justice gap is an example.  On the other hand, when it comes to wellness, we’re fortunate that some offices & firms realize that small things matter.  Still, in my view, the profession tends to make perfect the enemy of good.

Here’s a quote from Doctor King:

Image result for mlk small things image

The quote inspires me.  In 2020, I know that I won’t be able to create or accomplish great solutions to the profession’s problems.  But, every single day, my job will give me a chance to be great at something small that helps someone through the day.  I accept the challenge. If you join me, the small things will add up.

Honor Roll

  • Karen Allen, Esq.; Karen Allen Law
  • Matthew AndersonPratt Vreeland Kennelly & White
  • Evan BarquistMontroll Backus & Oettinger
  • Penny Benelli, Dakin & Benelli
  • Beth DeBernardi, Administrative Law Judge, VT Dept. of Labor
  • Erin GilmoreRyan Smith & Carbine
  • Robert Grundstein, Esq.
  • Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
  • Aileen Lachs, Office of United States Senator Patrick Leahy
  • John LeddyMcNeil Leddy & Sheahan
  • Kevin LumpkinSheehey Furlong & Behm
  • Jack McCullough, Vermont Legal Aid, Project Director – Mental Health Law Project
  • Hal Miller, First American
  • Herb Ogden, Esq.
  • Nancy Hunter Rogers, Chamberlin School 
  • Jim Runcie, Ouimette & Runcie
  • Ashley TaylorHorsley Lajoie Goldfine
  • Jonathan Teller-Elsberg, Vermont Law School, JD Candidate
  • Allison Bates Wannop, Special Counsel, Vermont Department of Public Service
  • Zachary York, Vermont Superior Court, Chittenden Civil 

 

ANSWERS

Question 1

Lawyer represents Client in Client v. Adversary.   Lawyer knows that Attorney represents Adversary.     Adversary calls Lawyer directly to discuss settlement.   Attorney has not consented to direct communication between Lawyer and Adversary.  Which is most accurate?  The no-contact rule:

  • A.  Does not apply because Adversary initiated the communication.
  • B.   Prohibits Lawyer from communicating with Adversary.  Rule 4.2 applies even if the represented person initiates the communication.  See, Comment [1].
  • C.   Prohibits Lawyer from communicating with Adversary, unless Adversary is also a lawyer.
  • D.   None of the above is even close to accurate.

Question 2

Me: “Do not state or imply that you’re disinterested.  And, if you know that the person misunderstands your role, correct their misunderstanding.”

Given my statement, the “person” must be ______.

  • A.  adverse to lawyer’s client
  • B.  unrepresented.   See, Rule 4.3.  It applies whenever dealing with anyone who is unrepresented, no matter their role or alignment.
  • C.  a witness
  • D.  a juror

Question 3

Lawyer represents Client in Client v. Organization.   Lawyer knows that Attorney represents Organization.  Under the Rules of Professional Conduct, does Lawyer need Attorney’s consent to discuss the case with former employees of Organization?

  • A.   No.  See, Rule 4.2, Comment [7].
  • B.    Yes.
  • C.  Yes, but only if they were part of the “control group.”
  • D.   Yes, unless their departure from Organization was involuntary.

Question 4

Lawyer drafted a will for Client.  Lawyer’s child benefits under the will.   For Lawyer to avoid a disciplinary prosecution:

  • A.   Client must be related to Lawyer’s child. V.R.Pr.C. 1.8(c).
  • B.   Lawyer must be married to Client.
  • C.   Client must be an attorney.
  • D.  None of the above.  This is a violation no matter what.

Question 5

Two weeks in a row!

Yes, I’m on my way to Canada.  But I’ll be back.  Mom – don’t worry. When I finally decide to move, I’ll tell you before I announce it on the blog.

Anyhow, Her Royal Highness the Duchess of Sussex was born in Canada. Later, she played a paralegal-turned-lawyer on a long-running tv show.  As I alluded to last week, she and Prince Harry recently caused a commotion in the Commonwealth by announcing their plans to leave England for Canada (and the U.S.)

Originally coined by a British tabloid, what is the one-word name that encompasses anything & everything related to the uproar over the Prince & Princess’s decision to depart Great Britain?

MEGXIT

 

 

Five for Friday #188

Welcome to Friday!

Those of you familiar with my disdain for winter — put your coffee down before reading further.

Today, I’m heading north.

That’s right, in a few short hours I’ll be on the road to Montreal for the VBA/YLD Thaw.  Later today, before Thaw Bowl VII, I’m moderating a panel on attorney wellness.

One of the points/questions that I intend to make/ask is that, as with many issues facing this profession, there are lots of little things that we can do each day to improve wellness.  Things that would never be the key recommendation of a study group, but things, nonetheless, that would make incremental improvement. And, after all, incremental improvement is improvement. Maybe that’s what study groups should recommend: small things, like making a difference one day and one starfish at a time.

Speaking of which, I think I found a small thing that would improve my own wellness and perhaps the state of mind of those who share my feelings toward winter.  It’s the damn weather app on my phone. Check this out:

View recent photos

Now, true care truth brings, I’ve never been confused with a tech guru or science guy.  But, I’ve heard of math. And I’m pretty sure that THERE IS NO SUCH THING AS NEGATIVE ZERO!  And my phone is still on Fahrenheit!

Would 0 or +0 make me happier about the runs I have planned in the city this weekend?

NO!

But that minus sign is an unnecessary twisting of the knife.  Fixing it would go a long way towards wellness for all.  Coders: sun lovers like me are your starfish. Save us one small step at a time.

By the way, given that the week’s number includes “88,” my mind drifts back to 2017 and a happier January trip. One that included hanging with Junior in Key West.

IMG_2015

Onto 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 represents Client in Client v. Adversary.   Lawyer knows that Attorney represents Adversary.     Adversary calls Lawyer directly to discuss settlement.   Attorney has not consented to direct communication between Lawyer and Adversary.  Which is most accurate?  The no-contact rule:

  • A.  Does not apply because Adversary initiated the communication.
  • B.   Prohibits Lawyer from communicating with Adversary.
  • C.   Prohibits Lawyer from communicating with Adversary, unless Adversary is also a lawyer.
  • D.   None of the above is even close to accurate.

Question 2

Me: “Do not state or imply that you’re disinterested.  And, if you know that the person misunderstands your role, correct their misunderstanding.”

Given my statement, the “person” must be ______.

  • A.  adverse to lawyer’s client
  • B.  unrepresented
  • C.  a witness
  • D.  a juror

Question 3

Lawyer represents Client in Client v. Organization.   Lawyer knows that Attorney represents Organization.  Under the Rules of Professional Conduct, does Lawyer need Attorney’s consent to discuss the case with former employees of Organization?

  • A.   No.
  • B.    Yes.
  • C.  Yes, but only if they were part of the “control group.”
  • D.   Yes, unless their departure from Organization was involuntary.

Question 4

Lawyer drafted a will for Client.  Lawyer’s child benefits under the will.   For Lawyer to avoid a disciplinary prosecution:

  • A.   Client must be related to Lawyer’s child.
  • B.   Lawyer must be married to Client.
  • C.   Client must be an attorney.
  • D.  None of the above.  This is a violation no matter what

Question 5

Two weeks in a row!

Yes, I’m on my way to Canada.  But I’ll be back.  Mom – don’t worry. When I finally decide to move, I’ll tell you before I announce it on the blog.

Anyhow, Her Royal Highness the Duchess of Sussex was born in Canada. Later, she played a paralegal-turned-lawyer on a long-running tv show.  As I alluded to last week, she and Prince Harry recently caused a commotion in the Commonwealth by announcing their plans to leave England for Canada (and the U.S.)

Originally coined by a British tabloid, what is the one-word name that encompasses anything & everything related to the uproar over the Prince & Princess’s decision to depart Great Britain?

The Over/Under and a Bizarre Disciplinary Hearing

I was a disciplinary prosecutor for almost 14 years.  My role afforded me an opportunity to witness some rather strange stuff during disciplinary hearings.

But nothing so bizarre as recent events in the Cal State Bar court.

I suspect many of you have heard of Michael Avenatti.

As I blogged here, Stormy Daniels’ former lawyer has been charged with federal crimes in two different jurisdictions.  In the Southern District of New York, prosecutors allege that he conspired to extort Nike.  Meanwhile, in the Central District of California, the government alleges that he misappropriated approximately $1.6 million from a client named Gregory Barela.

The Cal State Bar has initiated a disciplinary case against Avenatti.  It’s based on his dealings with Barela.  A preliminary hearing took place last month.  As reported by AP News, Fox News, and the San Diego Tribune, Avenatti didn’t have much good to say about the disciplinary case against him.  Among other comments:

Okay then!

Anyhow, things took an even stranger turn yesterday: IRS agents arrested Avenatti during a break in his disciplinary hearing.

Image result for wait what gif

You read that correctly.  You can read more about it pretty much everywhere, including The Daily Beast, CNBC, The Washington Post and The New York Times.

In gambling, a popular bet is the “over/under.” Bettors wager that a particular number will be over or under a number that is set by the house.

For example, in Monday night’s college football championship game between LSU and Clemson, most sports books closed the “over/under” at 66 total points.  The final score was 42-25, for a total of 67.  Thus, those who bet “the over” won.

By the numbers, most lawyers go through their careers without ever having to appear at a disciplinary hearing.  Even more make it to retirement without getting arrested.

Until today, I’d never stopped to consider a lawyer’s odds of being arrested during the lawyer’s own disciplinary hearing.  Having thought about it, if the “over/under” for how many times it will happen in the rest of my natural born life is “1,” I’ll take the under.

Of course, that’s the same bet I’d have made last week, last year, and last century.

And look how that would’ve turned out.

Set Reasonable Expectations for Clients

Image result for communication breakdown meme

Last week, I presented at a meeting of the Windham County Bar Association.  The audience included lawyers of all different ages, practice areas, and firm size.

I enjoy the seminars attended by lawyers with varied backgrounds & experiences.  They provide an opportunity to get down to the nitty gritty – the basics of professional responsibility that apply to all of us.

Here’s a tip that spans the gamut: work hard to manage client expectations.

Rule 1.3 of the Vermont Rules of Professional Conduct requires a lawyer to act with reasonable diligence and promptness when representing a client.  The first sentence of Comment [3] is:

  • “Perhaps no professional shortcoming is more widely resented than procrastination.”

The Comment goes on to outline the risks associated with a failure to act with reasonable diligence.

I’ve worked here for 21 years and reviewed more than 3000 disciplinary complaints.  I agree that clients don’t appreciate lawyers who procrastinate.  However, to the extent that the Comment suggests that disciplinary complaints are driven by the wide resentment at procrastination, I disagree

In my experience, disciplinary complaints are not driven by resentment.  They are driven by a lawyer’s failure to meet a client’s expectations. That is: the client didn’t achieve the expected result, in the expected time frame, at the expected cost.  Nor did the lawyer communicate with the client as often as the client expected.

Often, these “failures” are not failures at all, and certainly aren’t ethics violations.  Rather, they’re the predictable result of a lawyer’s failure to set reasonable expectations at the outset of the representation.

Imagine:

“Dear Bar Counsel:

I don’t want to get my lawyer in trouble, but I don’t want anyone else to have the same experience I did.  I hired my lawyer 3 years ago.  When I did, my lawyer told me that I had a great case and that I should expect X. 

At first, things were great.  My lawyer seemed interested in my case and we spoke all the time.  Things have changed.

Here we are, 12 months later and there’s no end in sight.  My lawyer now tells me that the best I can hope for is far less than X.  My lawyer is going to drop me as a client unless I come up with more money.  I don’t have any more money! I already spent $Y! I never would’ve hired the lawyer if I had known it was going to take this long and cost this much to get what I could’ve gotten on my own.”

That’s not an uncommon complaint.

Consider:

  • far less than X,
  • in 12 months, at
  • $Y.

Guess what they often turn out to be?

Exactly what the client should’ve expected from the outset, but for the lawyer’s failure to set reasonable expectations.  In other words, from the beginning, the professional relationship proceeded under the illusion that communication had taken place.

In a way, then, I don’t blame the client for being upset.  How was the client to know?

Here’s how:  you.

Communicate reasonable expecations as to outcome, cost, and length of time to resolution.  Do so early & often.  A lawyer who doesn’t risks a communication breakdown that turns good times into bad times.

Image result for communication breakdown led zeppelin album art

Monday Morning Answers #187

When it comes to this blog, the royal watchers are alive & well!

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

Honor Roll

  • Karen Allen, Esq.; Karen Allen Law
  • Matthew AndersonPratt Vreeland Kennelly & White
  • Evan BarquistMontroll Backus & Oettinger
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, John Marshall Law School
  • Corinne DeeringPACE Registered Paralegal®.  Paul Frank & Collins
  • Erin GilmoreRyan Smith & Carbine
  • Laura Gorsky, Esq.
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy,  JB Kennedy Associates, Blogger’s Mom
  • John LeddyMcNeil Leddy & Sheahan
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Lon McClintockMcClintock Law Offices
  • Jeffrey MessinaBergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Nancy Hunter Rogers, Chamberlin School 
  • Jim Runcie, Ouimette & Runcie
  • Jay Spitzen, Esq.
  • Jonathan Teller-Elsberg, Vermont Law School, JD Candidate
  • Jason Warfield, Vermont Law School, Class of 2020
  • Lucia WhitePractice Manager/Paralegal, Dunkiel Saunders 
  • Thomas Wilkinson, Jr., Cozen O’Connor
  • Zachary York, Vermont Superior Court, Chittenden Civil 

Answers

Question 1

A client’s failure to abide by the terms of a fee agreement:

  • A.   is not grounds for a lawyer to move to withdraw
  • B.   mandates that the lawyer move to withdraw
  • C.   permits the lawyer to move to withdraw.  V.R.Pr.C. 1.16(b)(5)
  • D.  is not mentioned in the rules of professional conduct

Question 2

Lawyer called me with an inquiry.  My response included the following words and phrases:  “knowledge,” “violation,”  “substantial question,”  and “honesty, trustworthiness, fitness.”

What did Lawyer call to discuss?

  • A.  Informing a court that a client had testified falsely in a civil matter.
  • B.  Informing a court that a criminal defense client had testified falsely.
  • C.  Reporting another lawyer’s misconduct.  V.R.Pr.C. 8.3
  • D.  Whether reciprocal discipline would be imposed in Vermont as a result of Lawyer being sanctioned in another state.

Question 3

Law Firm has a Facebook page.  Partner posts “the first 25 to ‘like’ this page win a free iPod!”  Which rule might the post violate?

  • A.   The rule that prohibits a lawyer from paying another to recommend a lawyer’s services. See my blog post: Like to win a Prize!
  • B.   The rule that prohibits the unauthorized practice of law.
  • C.   The rule on communicating with a represented person.
  • D.   Last month, the Vermont Supreme Court ruled that such a statement does not violate the Vermont Rules of Professional Conduct.

Question 4

By rule, a lawyer shall not disburse from the trust account:

  • A.   True.
  • B.   Without “collected funds” and there are no exceptions.
  • C.   Without “collected funds” but there are some exceptions.  See my blog post: Disbursing without Collected Funds
  • D.   Without the client’s consent, confirmed in writing.

Question 5

Following Caesar’s assassination, Brutus was forced to leave Rome.

One of my favorite fictional legal professionals is Rachel Zane.  In the television show Suits, she worked for many years as a paralegal before finally passing the LSAT, getting into law school, and becoming a lawyer.

In real life, the actress who plays Zane made headlines this week, not for leaving Rome, but for leaving her husband’s home country.

Who is the actress who played Rachel Zane in Suits?

Her Royal Highness The Duchess of Sussex, Meghan Markle

Image result for meghan markle title

Five for Friday #187

Welcome to the first official #fiveforfriday of 2020! Don’t worry . . . unlike last week, I’ll stick to five questions.  Still, thank you very much to all who took the time to answer 20.

So, I don’t really have an intro to tie to the week’s number or today’s date.

Yes, on January 10 in 49 BC, Julius Caesar crossed the Rubicon.

Image result for crossing the rubicon

Much more recently, I spent the early 90s in law school, my time divided between class, intramural sports, and MTV.  The latter introduced me to what has become a life-long relationship with Dre & Snoop.  This week’s number always reminds me of them. For Blogging further on why is a die I choose not to cast.

In closing then, happy new year and onto the quiz!

Rules

  • None.  Open book, open search engine, text-a-friend.
  • 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

A client’s failure to abide by the terms of a fee agreement:

  • A.   is not grounds for a lawyer to move to withdraw
  • B.   mandates that the lawyer move to withdraw
  • C.   permits the lawyer to move to withdraw
  • D.  is not mentioned in the rules of professional conduct

Question 2

Lawyer called me with an inquiry.  My response included the following words and phrases:  “knowledge,” “violation,”  “substantial question,”  and “honesty, trustworthiness, fitness.”

What did Lawyer call to discuss?

  • A.  Informing a court that a client had testified falsely in a civil matter.
  • B.  Informing a court that a criminal defense client had testified falsely.
  • C.  Reporting another lawyer’s misconduct.
  • D.  Whether reciprocal discipline would be imposed in Vermont as a result of Lawyer being sanctioned in another state.

Question 3

Law Firm has a Facebook page.  Partner posts “the first 25 to ‘like’ this page win a free iPod”  Which rule might the post violate?

  • A.   The rule that prohibits a lawyer from paying another to recommend a lawyer’s services.
  • B.   The rule that prohibits the unauthorized practice of law.
  • C.   The rule on communicating with a represented person.
  • D.   Last month, the Vermont Supreme Court ruled that such a statement does not violate the Vermont Rules of Professional Conduct.

Question 4

By rule, a lawyer shall not disburse from the trust account:

  • A.   True.
  • B.   Without “collected funds” and there are no exceptions.
  • C.   Without “collected funds” but there are some exceptions.
  • D.   Without the client’s consent, confirmed in writing.

Question 5

Following Caesar’s assassination, Brutus was forced to leave Rome.

One of my favorite fictional legal professionals is Rachel Zane.  In the television show Suits, she worked for many years as a paralegal before finally passing the LSAT, getting into law school, and becoming a lawyer.

In real life, the actress who plays Zane made headlines this week, not for leaving Rome, but for leaving her husband’s home country.

Who is the actress who played Rachel Zane in Suits?

“Like” To Win a Prize!

Early last decade, Kevin Ryan and I traveled around Vermont doing a presentation on legal ethics & social media.  Here’s a hypo we used:

  • Lawyer creates Facebook page for Firm.  Lawyer offers $25 to the first 25 friends who “like” or “share” the Firm’s page.  Discuss.

Now, given that it was early last decade, many in our audiences wondered why we were discussing something that would never happen in real life.

Alas . . . Kev, we told ’em so!

Late last decade, the North Carolina State Bar adopted 2019 Formal Ethics Opinion 6: Offering Incentive To Engage With Law Practice’s Social Networking Sites.  

(I didn’t notice the opinion until Sunday.  That’s when the Professional Responsibility Blog linked to the Louisiana Legal Ethics Blog’s post Top Ten Legal Ethics Developments in 2019.  Thank you Professors Bernabe & Ciolino!)

Anyhow, the NC opinion is straightforward.  A lawyer asked whether he could offer entries into a prize raffle to anyone who connected with his firm’s social media platforms.  The NC State Bar answered:

  • “No. If a social media platform will broadcast or display a user’s connection or interaction with Lawyer’s law practice social media account to other users of the platform, Lawyer may not offer prize chances in exchange for activity on or with his social media accounts.”

Per the opinion, the incentive program would violate Rules 7.2(b) and 7.1(a).

Rule 7.2(b) prohibits a lawyer from giving anything of value to someone to recommend the lawyer’s services.  Per the NC Opinion, free entry into a prize raffle is something of value, and a public “follow” or “like” is a recommendation.  By rule, the former cannot be given in exchange for the latter.

Rule 7.1(a) prohibits a lawyer from making a false or misleading communication about the lawyer’s services.  On this issue, the opinion says:

  • “The purpose behind Rule 7.2(b)’s prohibition on offering something of value in exchange for recommending services is to ensure that recommendations for a lawyer’s services are based upon actual experiences or legitimate opinions of the lawyer’s service, rather than financial incentive. The displayed “like” of a law practice may indicate some prior experience with the law practice or the personnel associated with the practice upon which the user’s “liking” of the practice is based. Similarly, the credibility attributed to a particular social media account could be influenced by the number of account followers or subscribers. When the “like” or follow of a law practice’s social media account is based upon the user’s interest in a prize giveaway, the incentivized “like,” follow, or other interaction received by Lawyer and displayed on social media is misleading in violation of Rule 7.1(a).”

Vermont’s versions of Rule 7.1(a) and 7.2(b) are identical to North Carolina’s.

I don’t know how I feel about the opinion.

On one hand, I get it: the lawyer’s plan violates the rules as they are written.

On the other, like many of you, I use “likes” (and tools like Yelp & Amazon reviews) ALL THE TIME when trying to find a product or service provider. Am I influenced by “follows,” “likes,” and positive reviews?  Yes.

But I’m also aware that many of us “like” pages for no other reason than someone we know asked us to “like” their page.  Or maybe even to become eligible to get something for free.  That is, I’m not under any illusion that all my friends who like another friend’s business have hired that friend and received satisfactory service.

In my mind, the important question isn’t whether someone hired a service provider based on the provider’s likes or endorsements.  No, the important question is, once hired, did the client receive competent service at a reasonable price?

There you have it.  As always, be careful out there.

Image result for facebook likes"

20 Answers for 2020

Wow!

On Friday, I posted 20 questions for 2020.  Far more than the usual 5, I didn’t expect anyone to take time to submit answers.  Rather, the post was meant to serve as a resource addressing some of the basics on professional responsiblity and ethics in Vermont.

But submissions I received!  Thank you!  The answers follow today’s unexpectedly large Honor Roll.

Honor Roll

Answers

Question 1

The rules with which Vermont attorneys must comply went into effect on September 1, 1999.  They are called:

  • A.   The Vermont Rules of Professional Conduct.
  • B.   The Vermont Code of Professional Responsibility.
  • C.   The rules.
  • D.   Those damn rules.

Question 2

Vermont’s attorney regulation program is called the “Professional Responsibility Program.”  The PRP is part of the:

  • A.  The Secretary of State’s Office of Professional Regulation
  • B.   The Vermont Bar Association
  • C.   The Vermont Judiciary.  Chapter II, Section 30 of the Vermont Constitution vests the Supreme Court with the authority to structure an attorney discipline and disability system.  To that end, the Court has promulgated Administrative Order 9, the order creating the Professional Responsibility Program.
  • D.   The Office of the Attorney General

Question 3

Vermont lawyers must carry professional liability insurance.

  • A.    True. It is required by statute.
  • B.    True. It is required by the rules.
  • C.     True, but there is an exception for government employees & in-house counsel.
  • D.    False.  (I intend to blog on this in the coming weeks & months, maybe more than once.)

Question 4

Rule 1.1 requires lawyers to provide clients with competent representation.  In 2018, Vermont became the 33rd state to adopt a Comment to Rule 1.1 that makes it clear that the duty of competence includes a duty to understand the risks and benefits of _______________.

RELEVANT TECHNOLOGY

Question 5

Speaking of the comments to Rule 1.1, in 2019, Vermont added another comment to the rule.  Following the recommendation of the ABA and several commissions that looked at this important issue, the new comment makes it clear that _____________ is an aspect of competence.

Question 6

Rule 1.2(d) prohibits a lawyer from assisting or advising a client to engage in conduct that violates the law.  In Vermont, as with a few other states, that poses issues for lawyers whose clients are involved with a particular industry.

▪What’s the industry?

Cannabis/Marijuana.  The concerns led to the Court adopting Comment 14 to Rule 1.2(d). The Comment clarifies that a lawyer does not violate the rule by assisting and advising clients on matters that are legal under state law.

Question 7

Rule 1.3 requires lawyers to act with reasonable diligence while representing clients.  A comment to the rule suggests that the duty requires sole practitioners to:

  • A.  have a succession plan
  • B.  use a cloud-based trust accounting system
  • C.  hire a bookkeeper (if only part-time) to reconcile the trust account
  • D.  Either B or C.

Question 8

Under Vermont’s rules, a lawyer _______ disclose a client’s intent to commit suicide.

  • A.    Must
  • B.    Must not
  • C.    May.   V.R.Pr.C. 1.6(c) Comment[10]

Question 9

In Vermont, if a prospective client meets with a lawyer in good faith, but does not retain the lawyer, the lawyer’s duty of loyalty is relaxed vis-à-vis the client. That is, if the lawyer did not receive information that could be significantly harmful to the prospective client, the lawyer may appear adverse to the prospective client.

However, another duty is not relaxed.

Which duty remains as stringent as if an actual attorney-client relationship had been formed?

The duty to maintain the prospective client’s confidences.  See, V.R.Pr.C. 1.18

Question 10

In Vermont, how much of a lawyer’s own money may the lawyer keep in a client trust account?

  • A.   $0
  • B.   No more than $100.
  • C.   No more than $500.
  • D.   An amount necessary to cover bank fees & service charges.  V.R.Pr.C. 1.15(b)

Question 11

In Vermont, a lawyer may not disburse funds from trust unless the deposit that is the source of the disbursement constitutes “collected funds.”

Is the following statement true or false?

  • There are no exceptions to the rule.

That is false.  There are several instruments that lawyers my presume to constitute “collected funds” upon deposit.  These exceptions appear in Rule 1.15(g).

Question 12

Fill in the blank (it’s way more than one word):

  • Unlike many other states, Vermont has a rule that specifically prohibits a lawyer from ________________ in order to gain an advantage in a civil matter.

Present, Threaten to  Present, or Participate in Presenting Criminal Charges

Question 13

Fill in the blank:

“In representing a client, a lawyer shall not communicate on the subject of the representation with a ____________ the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.”

  • A.  Person.   V.R.Pr.C. 4.2
  • B.  Party

Question 14

In Vermont, which set of rules is relaxed for lawyers who provide pro bono services under the auspices of a non-profit or court approved program?

The rules on _________:

  • A.   Trust Account Management
  • B.   Communicating with a Represented Person/Party
  • C.   Confidences
  • D.  Conflicts of Interest.   V.R.Pr.C. 6.5.

Question 15

Under Vermont’s legal ethics rules, when a lawyer receives a document relating to the representation of a client that the lawyer knows or should know was inadvertently sent, the lawyer ________________.

  • A.   must notify the sender.  V.R.Pr.C. 4.4(b).
  • B.   must notify the client and abide by the client’s instructions on whether to notify the sender.
  • C.  must notify the client and abide by the client’s instructions on whether to use or return the document.
  • D.   B and C.

Question 16

By rule, a pooled-interest bearing trust account must be reconciled:

  • A.   Quarterly.
  • B.   Periodically, but no less than quarterly.
  • C.   Timely, with “timely” meaning “no less than monthly.”  V.R.Pr.C. 1.15A(a)
  • D.  Regularly.

Question 17

By rule, what must a Vermont lawyer maintain for 6 years following the termination of a representation?

  • A.  The client’s file.
  • B.   A copy of the client’s file.
  • C.   Records of funds or property held for the client during the representation.  V.R.Pr.C. 1.15(a).
  • D.   Copies of any advertisement that caused the client to inquire about representation.

Question 18

The matter is Swift v Braun. 

  • Associate works at Small Firm.  Small Firm represents Swift.
  • Large Firm represents Braun.
  • Associate accepts a job at Large Firm.

Unver Vermont’s rules, can Large Firm continue to represent Braun?

  • A.    Yes.
  • B.    Yes, if Associate is screened from working on Swift v. Braun.
  • C.   No.
  • D.   It depends whether Associate was personally & substantially involved in working on Swift v Braun while at Small Firm.  V.R.Pr.C. 1.10(a).

Questions 19, 20 and bonus

In 2019, the ABA updated its list of the Top 25 legal movies of all-time.  2 of the top 3 are set in the same state.

  • 19.  Name one of the movies.   To Kill a Mockingbird
  • 20.  Name the other.  My Cousin Vinny
  • Bonus: name the state.  Alabama

Happy 2020!

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