Five for Friday #297

Michael 1 Comment

Happy sunny Friday and welcome to the 297th legal ethics quiz!

I was bored the other night. Nothing on tv interested me, it was too early to go to bed, and the book I intend to read next had yet to arrive from Amazon.[1] So, I grabbed a magazine that I didn’t even really know I had. I mean, I knew there were some magazines on my coffee table, but until I rifled through them, I couldn’t have told you which ones were there.

Turns out, I snagged the 1000th issue of Rolling Stone. The issue includes dozens of vignettes about prior covers. Leafing through sent me on a fantastic trip down memory lane that, to the say least, cured my boredom.  Eventually, I thought to myself “Self, I’m glad you bought this and saved it!” Then, looking closer, the mailing label made me realize I hadn’t bought it – I was a subscriber!

So, I looked through the others I’d saved.  There were three, the oldest being RS668: Pearl Jam.[2] This told me that I was a subscriber for at least 14 years!

I don’t remember the last issue I received in the mail.  I assume I canceled the subscription once I learned I could just read online. In a way, this made me sad. While I never collected Rolling Stone magazines, I’d clearly saved some.  And, as I said two paragraphs ago, going back through them was fun! Fun in a way that reading archived versions isn’t. It made me wish I’d never stopped subscribing.

In turn, this reminded me of the one magazine that, in fact, I used to collect: Sports Illustrated. I first subscribed to SI when I was in high school. Probably 1982 or 1983. I LOVED the covers and intended to save them forever. 

Around the same time, I had a paper route. That’s right – The First Brother and I were JIMs: Junior Independent Merchants who delivered The Burlington Free Press.  I don’t remember his name, but one of my customers learned of my interest in Sports Illustrated.  He had hundreds, going back to well into the 1970s.  He let me have them! For years, my containers full of SIs resided either with me or in my mom’s basement. They survived until 2018 when, instead of joining me at The Garage Bar, they made their final journey . . . to the recycling facility.

This too made me sad. Why hadn’t I kept them? Even if I only looked through them once a year?.

It made me wonder what else I had stopped collecting that, someday, I’ll wish I had continued to save. I didn’t spend much time “wondering,” quickly remembering that I’ve never been much of a collector or saver. Really, there are only 2 things I’ve saved: ticket stubs from sporting events and race bibs.[3]

Collecting the former sort of died of its own volition with the advent of digital tickets and Apple Wallet. I suppose I could screen shot them, but it’s not the same. I like the feel of going through actual tickets.  Tickets that were much more than bar codes. For example, I miss adding tickets like these to my collection:

Which leaves race bibs as the only thing that I continue to save/collect.  I love them! After each race, I scrawl a few memories of the race on the bib and then hang it with the others. Every now and then I find myself looking at them, thanking myself for making the notes, and, as I did with Rolling Stone Issue 1000, enjoying the trip down memory lane. 

May paper race bibs forever be a thing!

Anyhow, I didn’t mean for this intro to turn wistful or melancholy.  Rather, I intended for it to do what my favorite Friday posts do: cause readers to share their personal stories with me.

My guess is that many of you collect something. I’d love it if you shared that interest with me. I might even follow-up with a post that, without naming names, lists the “things” that we save or collect.

Onto the quiz!

Rules

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

Question 1

A lawyer has a duty not to disclose “information relating to the representation of a client.” A comment to the confidentiality rule states that the rule applies:

  • A.  only to information covered by the attorney-client evidentiary privilege.
  • B.  only to information that, if disclosed without client consent, would be detrimental or embarrassing to the client.
  • C.   A & B.
  • D.  not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.

Questions 2

What does the rule say?

“A lawyer shall ____________

  • A.  abide by the client’s decisions about the means by which the client’s objectives are to be accomplished.”
  • B.  reasonably consult with the client about the means by which the client’s objectives are to be accomplished.”
  • C.  exercise reasonable judgment when choosing the means by which the client’s objectives are to be accomplished.”
  • D.  Trick question.  There is a gap in the rules that, until filled, leaves this issue unaddressed.

Question 3

The general rule is that a lawyer:

  • A.   may pay anyone for a client referral.
  • B.   may only pay for referrals made by other lawyers.
  • C.   shall not give anything of value to a person for recommending the lawyer’s services.
  • D.   C, and there are no exceptions to the general rule.

Question 4

In addition to being subject to the rule that prohibits unreasonable fees, what do divorce lawyers and criminal defense lawyers have in common with respect to the rules governing the fees that they charge?

Question 5

With Rolling Stone so prominent in the intro, I did some research.  Admittedly, some very quick research. I’m not positive that I’m correct, but I believe that the issue dated June 12, 1980, was the first to feature a lawyer on the cover.  The cover story was not about the person’s work as a lawyer, but the person’s “struggle” as a candidate for national office.

Twenty-one years before appearing on the RS cover, the person graduated from the University of Virginia Law School.  The person’s first job as a lawyer was as an assistant district attorney in Suffolk County, Massachusetts.  The person didn’t work as a prosecutor for long. Two years later the person started a new job, one in which they remained until 2009.

The person was the younger sibling of two incredibly famous brothers.  Let’s call the brothers A and B. 

B was also a lawyer.  A was not.  The legal job with which B is most associated is one in which he worked as part of A’s inner circle.

I am 100% certain that every person reading this question has heard of numerous members of the person’s family, including one quite recently!

Name the person who, I think, was the first lawyer ever to appear on the cover of Rolling Stone.

PS: don’t get lawyerly on me. If it turns out that another lawyer appeared on the cover of Rolling Stone before this one did, Question 5 can be changed to “who is the person Mike described in Question 5?”

[1] Yes, I prefer actual books.  No e-reading for me.

[2] I’d also saved RS683: Kurt Cobain and RS682: Melrose Place.  Melrose Place is criminally underrated, and it bothers me to no end that, while a different genre, it’s not held in the same regard as Friends, a show that, in my opinion, is the most overrated in the history of not only rating shows, but of rating anything.

[3] The First Brother and I collected baseball cards as kids. Unlike my SIs, my baseball cards did not accompany me on my various moves. Instead, I left them in the basement of my mother’s house. One day, early in my legal career and not thrilled with it, I decided to scour my baseball cards, hopefully to find one that was worth millions.  Oddly, unlike much of the other “stuff” that we stored in our mom’s basement – for example, my SIs – the baseball cards were gone.  When asked, my mom feigned ignorance.  I didn’t press the issue.  If I had, my guess is that she’d have told me that my pet turtle who “ran away” while we were on vacation when I was about 10 had returned to get the baseball cards and take them to his new place. See, this post and footnote 4.

A Tool to Track Court Orders & Local Rules on the Use of AI.

Michael Leave a comment

In January, the Duke Center on Law & Tech launched Responsible AI in Legal Services (RAILS). The initiative’s mission is to:

  • “Bring together a cross-industry group of leaders (judiciary, corporations, law firms, tech providers, access to justice orgs, etc.) to support the responsible, ethical, and safe use of AI to advance the practice of law and delivery of legal services to all.”

Although I only learned about RAILS today, I’m already appreciative of the tab Resource: AI Orders.  It includes a link to the RAILS AI Use in Courts Tracker.  The Tracker “contains court orders, local rules, and guidelines from the U.S. and other countries [and] allows for search and filtering capabilities based on factors such as jurisdiction, date, and other key terms.”[1]

I’m not aware of any court orders, local rules, or guidelines having been issued in Vermont. So, why is the tracker important?

The Honorable Paul Grimm is a retired federal judge and current law professor at Duke Law School.  The RAILS resource page includes words from Judge Grimm. 

First, Judge Grimm noted:

  • “the headlines in the last year in particular have included many stories about litigants and attorneys who faced or were subjected to sanctions for having filed court papers prepared by GenAI applications that contained citations to fictitious legal authority, or cited actual cases, but which did not actually support the argument for which they were cited.”

He added:

  • “These were entirely self-inflicted injuries because no lawyer or party should file any court paper without independently confirming the accuracy of the facts and legal authority cited.”[2]

Finally:

  • “In reaction to these lapses, an increasing number of judges and courts have issued a profusion of standing orders, pretrial orders, court rules, general orders, and case management orders that imposed various obligations on litigants and counsel to certify the use of AI technology and the accuracy of their filings. While well intentioned, the sheer number of these orders and lack of uniformity their provisions can cause considerable confusion to litigants and practitioners who may have to appear in many different courts. In this dynamic environment, what is needed is a ‘one-stop’ source for finding all of these orders that will allow litigants and attorneys to make sure they are aware of, and comply with, these court requirements.” (emphasis in the original).

While most readers practice here, some likely practice elsewhere. So, to the extent the tracker might help them, I’m highlighting it today.

I appreciate two other aspects of the RAILS resource page. 

The first is that it calls attention to the difference between “AI” and “Generative AI.” 

Tech competence indeed.

The second is that it acknowledges that “few” of the court orders and local rules identified by the tracker “govern behaviors that are not already addressed by existing rules of professional responsibility.”  I appreciate this acknowledgement because while I agree with RAILS that “the lack of consistency in terminology and scope of these orders may create confusion and compliance challenges for attorneys navigating the AI landscape,” I also believe that the current Rules of Professional Conduct encompass the scope of misconduct that might result from the use of AI, as well as the use of whatever new “thing” that technology brings us next and next and after that.

As always, let’s be careful out there.

[1] Notably, RAILS takes no pride of ownership.  Their resources page also links to the Ropes & Gray Court Order Tracker, another tool to track “standing orders and local rules on the use of AI.”

[2] As I’ve repeatedly argued, it’s often not technology that’s the problem. Imagine that a partner asks an associate to draft a memorandum of law.  If the partner submits the memo without checking the cases cited by the associate, and if those cases are fictitious, we wouldn’t focus on whether to adopt orders regarding the use of associates.  We’d focus on the partner’s failure to check the cites!

RELATED POSTS

Wellness Wednesday: Try Positive Self-Talk

Michael Leave a comment

Last week, I encouraged people to make well-being a habit.  I did so in the context of next month’s  Well-Being Week in Law and the dozens of activities that the organizers recommend for those looking to improve their well-being.

Of course, with so many choices, it can be difficult to decide where to start.  To the extent that well-being starts within, and that each of us is (at least partly) responsible for our own well-being, one way to begin might be this: by being nicer to yourself. 

Cynthia Sharp and Rebecca Howlett run The Legal Burnout Solution.  Cindy and Becky are fantastic resources on issues related to well-being.  Earlier this year, they posted A Guide to Self-Compassion for Lawyers.  Early in the post, they wrote:

  • “While our client duties necessitate that a competent lawyer approach the practice of law with care and empathy for those we serve, many of us find it difficult to extend this same level of compassion to ourselves.”

I agree 100%.  Indeed, my experience is that many lawyers are their own worst critic.  Why?  I don’t know.  Honestly, knowing why is beyond the scope of what I do. Maybe it’s human nature.  Maybe it’s imposter syndrome.[1]  I don’t know.

What I do know is that Becky & Cindy’s posts includes three “practical steps for cultivating self-compassion.”  Two are mindfulness meditation and practicing gratitude.  Each is an excellent tip.[2]  However, I want to focus on the third: positive self-talk.

Discussing the importance of positive self-talk, Becky and Cindy shared the story of a lawyer named Briana.

  • “After struggling for months with depression and burnout, Brianna confided in a legal mentor about her feelings, including her increasingly negative self-talk. Brianna says it all clicked when her mentor asked her how she would approach a friend going through a similar situation. ‘Suddenly, it was like a light bulb went off. I would never talk to a friend the way I was treating myself.’”

Bingo! 

My guess is that many of us can relate. I can.  Just a few weeks ago I was upset with a run that left me thinking “what is wrong with you Mike? Why can’t you run like you used to run? Get tougher!” Then, I realized that I’d never say the same to a friend who expressed discouragement with a race result. Ever since, I’ve noticed small, incremental improvement.  All because I decided to talk to myself like I would to a friend.

For more on adding positive self-talk to your repertoire, check out Becky and Cindy’s post.

As always, let’s be careful out there.

[1] Other posts on imposter syndrome include Engage Intellectually. And, you are not impostor and Venue, The Electric Slide, and Imposter Syndrome.

[2] In January, I posted Wellness Wednesday: Practicing Gratitude Can Improve Your Well-Being.  Among other things, I’m grateful that there are people like Becky & Cindy working to improve the profession!

Previous Wellness Wednesday Posts

Monday Morning Honors #296

Michael 1 Comment

Happy Monday!

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

  • Karen Allen, Karen Allen Law
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Law Professor, UIC Law
  • The Currency Counselors, Office of the State Treasurer, General Counsel’s Office
  • Robert Grundstein
  • Margo Howland, Esq.
  • Glenn Jarrett, Jarrett/Hoyt
  • Douglas Keehn, Assistant Attorney General, Medicaid Fraud & Residential Abuse Unit
  • Mark Kolter, Darby Kolter & Roberts
  • Elizabeth Kruska, Former President, Vermont Bar Association
  • Jordana Levine, Marsicovetere & Levine
  • Jeffrey Messina, Flynn Messina
  • Patrick Olmstead, Patrick Olmstead Law
  • Keith Roberts, Darby Kolter & Roberts
  • Jim Runcie, Ouimette & Runcie
  • Jonathan Teller-Elsberg, Staff Attorney, New Hampshire Legal Assistance
  • Brendan Walsh, Quantum Leap Capital
  • Jason Warfield, Jason Warfield Family Law & Mediation
  • Thomas Wilkinson, Jr., Cozen O’Connor

ANSWERS

Question 1

Here’s language from a rule that relates to one of the 7 Cs of Legal Ethics:

“The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client.”

The language is the first of four requirements that must be met before a lawyer can __________:

  • A.  Represent a client despite a concurrent conflict of interest.  See, V.R.Pr.C. 1.7(b)(1).
  • B.  Disclose otherwise confidential information.
  • C.  Undertake representation in a subject matter area that is new to the lawyer.
  • D.  Choose not to communicate to the client information that would otherwise assist the client to make an informed decision about to the representation.

Questions 2

Fill in the blank. Choices are below and the same word correctly fills each blank.

There’s a rule that sets out a lawyer’s duties when dealing on behalf of a client with a person who is ___________.  Per the rule, a lawyer “shall not state or imply that the lawyer is disinterested.”  A comment to the rule states that “An ___________ person, particularly one not experienced in dealing with legal matters, might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even though the lawyer represents a client.”

What’s the word?

  • A.  Incapacitated.
  • B.  Represented.
  • C.  Unrepresented.  V.R.Pr.C. 4.3, Comment [1].
  • D.  Adverse.

Question 3

This came up in an inquiry I received this week.

A supervisory lawyer will be responsible for another lawyer’s misconduct __________:

  • A.  Never.
  • B.  If the supervisory lawyer orders or ratifies the misconduct.
  • C.  If the supervisory lawyer knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
  • D.  B & C.  See, V.R.Pr.C. 5.1.

Question 4

Speaking of remedial action and the & 7 Cs of legal ethics . . .

. . . each situation below likely requires action by the lawyer. However, of the “C” rules, only one includes language that specifically requires a lawyer to take “reasonable remedial measures” in response to specified conduct by a client or witness.  Which C, and what is the conduct, stated in the rule, that requires “reasonable remedial measures?”

  • A.  Confidentiality.  The client or witness informed the lawyer that they used impermissible or illegal methods to obtain evidence from an opposing party.
  • B.  Candor.  The client or witness offered material evidence that the lawyer comes to learn is false.  V.R.Pr.C. 3.3(a) (3).
  • C.  Commingling.  The lawyer comes to learn that the client or witness used the lawyer’s trust account to hide funds from creditors. 
  • D.  Conflicts.  The lawyer comes to learn that the client or witness met with another lawyer for no reason other than to disqualify the lawyer from representing the opposing party.

Question 5

Background: a category in Jeopardy a few nights ago was “the original language.” For example, a clue was “The Aeneid.”  The correct response was “What is Latin?”  Also, in Vermont, the unauthorized practice of law violates Rule 5.5 of the Vermont Rules of Professional Conduct.

In the intro, I referred to a motion for sanctions filed against an attorney representing Elon Musk in a civil case that is pending in Texas. I mentioned that the motion alleges the lawyer engaged in uncivil conduct during a deposition.  What I didn’t mention is that the motion also argues that Musk’s lawyer engaged in the unauthorized practice of law by appearing at the deposition (and filing pleadings) before being admitted to practice in Texas.  Specifically, the motion argues that the lawyer failed to secure a type of admission that, as far as I know, every U.S. jurisdiction uses a Latin term to describe. 


What’s the Latin term for the type of admission to practice that Musk’s lawyer allegedly failed to secure?

PRO HAC VICE

Bonus: what’s the literal English translation?

A variety of answers are generally correct.  According to my research, the literal translation is “for this turn.”

Five for Friday #296

Michael 1 Comment

Welcome to the 296th Five for Friday legal ethics quiz!

Your responses to last week’s intro about grilled cheese sandwiches were amazing!  So amazing that I decided not even to bother with attempting an intro this week. Instead, I’ll bask in last week’s for another 7 days and, today, will share a few stories related to legal ethics & professional responsibility.  Oh, and I’m holding a story in reserve – a New Hampshire story that I’ll likely blog about tomorrow in the return of Was That Wrong?[1]

CIVILITY.  Numerous outlets reported on a motion for sanctions that was recently filed against a lawyer who is defending Elon Musk in a defamation suit.  Among them, Reuters, Bloomberg Law, and MSN. The sanctions bid includes allegations related to the lawyer’s behavior during Musk’s deposition. I’m not overly interested in what, if true, is yet another example of boorish, misguided behavior that has no place in the profession.  I am much more interested in the spoliation issue that Joe Patrice mentioned at the end of this post for Above The Law.   

PROSECUTORIAL MISCONDUCT. Earlier this week, I finished re-reading John Grisham’s The Guardians.  The novel highlights the work of lawyers dedicated to exonerating the wrongfully convicted.  Coincidentally, mere days after I finished the book, I came across this report of a Kansas prosecutor who is surrendering her law license (and will be disbarred) following allegations of prosecutorial misconduct that include claims that she framed an innocent man.

TECH COMPETENCE? Many of you are aware that I often speak and write on the dangers of copying a client on an electronic communication (whether text or email) to opposing counsel.  What I’ve never had reason to consider is the danger of copying opposing counsel on an email warning a colleague that a judge is about to call and that the colleague shouldn’t answer. Turns out that, as reported by the Legal Profession Blog and the ABA Journal, the danger is a public reprimand from the Massachusetts Board of Bar Overseers.

WHAT I’M FOLLOWING.  While not directly related to legal ethics or professional responsibility, it wouldn’t surprise me if allegations of misconduct fly during a criminal trial that got underway this week in Boston. For months, I’ve been fascinated with the Karen Read case. Read is charged with murdering her boyfriend, a Boston Police Officer. Her defense is that she is being framed and that other law enforcement personnel not only committed the crime but engaged in a conspiracy to pin the blame on Read.  For those of you not familiar with the case, Boston.Com ran this primer in connection with jury selection.

As always, let’s be careful out there.

Onto the quiz!

Rules

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

Question 1

Here’s language from a rule that relates to one of the 7 Cs of Legal Ethics:

“The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client.”

The language is the first of four requirements that must be met before a lawyer can __________:

  • A.  Represent a client despite a concurrent conflict of interest.
  • B.  Disclose otherwise confidential information.
  • C.  Undertake representation in a subject matter area that is new to the lawyer.
  • D.  Choose not to communicate to the client information that would otherwise assist the client to make an informed decision about to the representation.

Questions 2

Fill in the blank. Choices are below and the same word correctly fills each blank.

There’s a rule that sets out a lawyer’s duties when dealing on behalf of a client with a person who is ___________.  Per the rule, a lawyer “shall not state or imply that the lawyer is disinterested.”  A comment to the rule states that “An ___________ person, particularly one not experienced in dealing with legal matters, might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even though the lawyer represents a client.”

What’s the word?

  • A.  Incapacitated.
  • B.  Represented.
  • C.  Unrepresented.
  • D.  Adverse.

Question 3

This came up in an inquiry I received this week.

A supervisory lawyer will be responsible for another lawyer’s misconduct __________:

  • A.  Never.
  • B.  If the supervisory lawyer orders or ratifies the misconduct.
  • C.  If the supervisory lawyer knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
  • D.  B & C.

Question 4

Speaking of remedial action and the & 7 Cs of legal ethics . . .

. . . each situation below likely requires action by the lawyer. However, of the “C” rules, only one includes language that specifically requires a lawyer to take “reasonable remedial measures” in response to specified conduct by a client or witness.  Which C, and what is the conduct, stated in the rule, that requires “reasonable remedial measures?”

  • A.  Confidentiality.  The client or witness informed the lawyer that they used impermissible or illegal methods to obtain evidence from an opposing party.
  • B.  Candor.  The client or witness offered material evidence that the lawyer comes to learn is false.
  • C.  Commingling.  The lawyer comes to learn that the client or witness used the lawyer’s trust account to hide funds from creditors. 
  • D.  Conflicts.  The lawyer comes to learn that the client or witness met with another lawyer for no reason other than to disqualify the lawyer from representing the opposing party.

Question 5

Background: a category in Jeopardy a few nights ago was “the original language.” For example, a clue was “The Aeneid.”  The correct response was “What is Latin?”  Also, in Vermont, the unauthorized practice of law violates Rule 5.5 of the Vermont Rules of Professional Conduct.

In the intro, I referred to a motion for sanctions filed against an attorney representing Elon Musk in a civil case that is pending in Texas. I mentioned that the motion alleges the lawyer engaged in uncivil conduct during a deposition.  What I didn’t mention is that the motion also argues that Musk’s lawyer engaged in the unauthorized practice of law by appearing at the deposition (and filing pleadings) before being admitted to practice in Texas.  Specifically, the motion argues that the lawyer failed to secure a type of admission that, as far as I know, every U.S. jurisdiction uses a Latin term to describe. 

What’s the Latin term for the type of admission to practice that Musk’s lawyer allegedly failed to secure?

Bonus: what’s the literal English translation?

[1] The Was That Wrong? posts are so fun that, in good conscience, I can only write them on Saturday mornings.

Habitual Well-Being

Michael 1 Comment

If you only have time to read one line today, let it be this: consider making well-being a habit.

Now, for anyone with time for more, the rest of the story.

Well-Being Week in Law (WWIL) begins on May 6. From the website, it’s “aim . . . is to raise awareness about mental health and encourage action and innovation across the profession all year-round to improve well-being.”  The emphasis on “all year-round” is mine.  That’s because my hope continues to be that legal professionals make well-being a habit, not just something in which to dabble for a few days in May.

As a coach and runner, I’ve long believed not only in the importance of developing good habits but also in the notion that whatever we do – whether good or bad – we get good at it. For example, almost six years ago, I posted Make Wellness A Habit.[1]  Here’s an excerpt:

“As most of you know, I used to coach high school basketball.  Any coach will tell you this: whatever you do every day in practice, that’s probably what your team will be good at doing.  If you shoot a lot, your team will probably shoot well.  If you work a lot on plays against a zone defense, your team will probably execute its zone offense well.  If you do a little of a lot, but not a lot of any one thing, your team will probably be okay at a lot, but not very good at much of anything.

The same goes for incorporating wellness and mindfulness into your workplace.  If you want wellness and mindfulness to be part of your workplace culture, you must practice them.  Not just talk about wellness for 50 minutes at the firm retreat.  Not just mention mindfulness at every other staff meeting.  But do them.

Every. Single. Day.“

In other words, improvement happens when working to improve becomes a habit.[2]

Of course, making something a habit can be difficult.  Which brings me back to WWIL.  And, again, I’ll turn to the WWIL website:

  • “This year’s overall theme is Well-Being Reboot: A Fresh Start for Positive Change. It embodies two key ideas: (1) a clean slate to start/restart our well-being action plans and (2) behavior change toward greater well-being.”

With respect to “fresh starts,” the organizers write:

  • “Fresh starts make us feel like we can turn the page on our past failures. They also give us a chance to diagnose the reasons why our new habits aren’t sticking. This research inspired our WWIL theme. Many of us make well-being resolutions in January. By May, if our busy lives have gotten in the way of our big intentions, we may benefit from a reboot. We’d like to think of WWIL as a Well-Being New Year. We can put our failures behind us and celebrate a fresh start for building the healthy lives we really want.”

That is, WWIL’s “reboot” theme gives all of us who have dabbled in wellbeing but not yet made it a habit a chance to start anew.

Each day during WWIL focuses on a discrete aspect of well-being.

The website is chock full of tips to address each day’s focus.  Tips that, if made into habits, will improve your well-being.

So, back to the opening line: consider making well-being a habit.  

Look at the tips.  I’m sure you can find one that interests you.  Would one (or more) for each day be good?  Yes. But even just one – from even just one of the days — will be a great start.  From there, make it habit.

Indeed, if charged with looking out for your own well-being, may you plead guilty to being a habitual offender.

As always, let’s be careful out there

[1] I just noticed that I posted it on July 18.  That’s my birthday. (Cancers rock! Cancer doesn’t. Trust me – I know both to be true.) Anyhow, for the life of me, I cannot imagine what made me think that celebrating my birthday by working on a well-being blog was good for my well-being!

[2] For more, check out Healthline’s Habits Matter More Than You Might Think – These Tips Can Help The Good Ones Stick or MindTools and The Power of Good Habits.

Previous Wellness Wednesday Posts

Monday Morning Honors #295

Michael 2 Comments

Happy Boston Marathon Day!  Good luck to all runners, including Vermont lawyer Tim Noonan!

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

A HUGE thank you to all the readers who sent tips on making the perfect grilled cheese sandwich. I received so many that I think Wednesday might require a wellness post that features the suggestions. 

Honor Roll

ANSWERS

Question 1

By rule, what is required to be “communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation?”

  • A.  Whether the lawyer has malpractice insurance and, if so, the policy limits.
  • B.  Whether the lawyer has designated a successor to review and triage files if the lawyer becomes incapacitated during the representation.
  • C.  The basis or rate of the lawyer’s fee, and expenses for which the client will be responsible, except when the lawyer will charge a regularly represented client on the same basis or rate.  V.R.Pr.C. 1.5(b).
  • D.  All the above.

Question 2

Which is NOT an exception to the duty not to disclose information relating to the representation of a client.

  • A.  To respond to a negative online review left by a former client.  See this blog post.
  • B.  To secure legal advice about compliance with the ethics rules.
  • C.  To make an inquiry of bar counsel about the representation.
  • D.  To detect conflicts of interest when considering new employment.

Question 3

Vermont has a rule that imputes certain types of a lawyer’s conflicts to all other lawyers in the same firm.  Does the rule impute a paralegal’s conflict to other lawyers in the same firm?

  • A.  Yes, and the firm must decline the representation.
  • B.  No, but the paralegal should be screened from involvement in the new matter.  See, V.R.Pr.C. 1.10, Cmt. [4].
  • C.  Yes, but only to any lawyer who supervises the paralegal.

Question 4

Do Vermont’s rules on conflicts of interest allow a client to consent to waive a conflict that might arise in the future?

  • A.   No.
  • B.   Yes.  The advance waiver is subject to the same test as any other conflict waiver.  See, V.R.Pr.C. 1.7, Cmt. [21].
  • C.   Yes, but only if the client is a “sophisticated client.”
  • D.   Yes, but only if the client is a “sophisticated client” who has previously retained the lawyer in other matters.

Question 5

The people in these pictures are Sarah Paulson and Courtney Vance.  The pictures are stills from a documentary in which each portrayed a lawyer who was involved in the OJ Simpson criminal trial. 

Talk about competence!

In 2018, each won an Emmy Award for their work in the documentary.   Name the lawyers that each played.

Marcia Clark & Johnnie Cochran.

Five for Friday #295

Michael 3 Comments

Welcome to the 295th Five for Friday legal ethics quiz!

Today is National Grilled Cheese Sandwich Day. There’s no question that I’ll celebrate the occasion.  The only question is this: with the duty of competence in mind, what’s the proper way, both procedurally and substantively, to make a grilled cheese sandwich?

In my mind, there are 2 procedural options.

  1. Make the sandwich first.  Historically, this is how I’ve prepared grilled cheese sandwiches. I butter the outside of each piece of bread, make the sandwich, then grill it as completed sandwich. Alas, and as my bread video made clear, I lack culinary skill.  And I use the singular on purpose – I do not have a single culinary skill.  So, the trouble I run into with this method is “the flip.” Cheese and any other fixings I’ve included tend to spill into the frying pan. [1]  In an effort to combat spillage, I’ve pressed (very hard) on the sandwich with a spatula.  I don’t like doing that. I feel like a squished-up sandwich ruins the presentation.
  2. The sandwich doesn’t come together until the end.  To address spillage, I’ve tried this method. I grill each piece of bread at the same time. As they grill, I add the cheese and other ingredients to one of the pieces.  Then, when everything looks ready, I remove both pieces of bread from the pan, “close” the sandwich, and eat it.  The struggle I face here is getting the cheese to melt before the bread burns.  I don’t quite understand the science behind it, but my sense is that the compression caused by the literal sandwich in Option 1 helps the cheese to melt quicker than it does when using Option 2’s open-face method.

I suppose there are other methods.  If so, they’re likely too complicated to be worth it.

Substantively, I’m kind of set in my ways.

  • Bread: Italian, sourdough, or a hamburger bun.
  • Cheese: pepperjack.

I don’t mind eating it bare. However, I usually add fixings. My go-to add-ons are black pepper, pickles, and honey mustard sauce. I also allow onions, bacon, tomato, and barbecue sauce.

So there you have it.  Competent?  Let me know.

By the way, before I realized it was National Grilled Cheese Sandwich Day, I considered writing about the castaways who were rescued from a Pacific Island after using palm leaves to spell “HELP” on the beach.  I’m sure many of you why the story intrigued me.  Especially those of you who are roughly my age. 

The story is straight out of Gilligan’s Island! 

Remember when they spelled “SOS” on the beach only to have Gilligan catch fire and accidentally change it to “SOL?”  The episode’s Wiki is here.  Last week I got to write about Get Smart and The Cone of Silence, this week Gilligan’s Island. Somewhere, 9-year-old me who grew up on reruns is smiling.

Anyhow, I wondered if maybe there had been a Gilligan’s Island episode that featured grilled cheese sandwiches.  I found no evidence that such an episode exists. However, guess what I did find?

A restaurant named Grilligan’s Island that specializes in – you guessed it – grilled cheese sandwiches!

Lakeport, CA, here I come!

Onto the quiz!

Rules

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

Question 1

By rule, what is required to be “communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation?”

  • A.  Whether the lawyer has malpractice insurance and, if so, the policy limits.
  • B.  Whether the lawyer has designated a successor to review and triage files if the lawyer becomes incapacitated during the representation.
  • C.  The basis or rate of the lawyer’s fee, and expenses for which the client will be responsible, except when the lawyer will charge a regularly represented client on the same basis or rate.
  • D.  All the above.

Question 2

Which is NOT an exception to the duty not to disclose information relating to the representation of a client.

  • A.  To respond to a negative online review left by a former client.
  • B.  To secure legal advice about compliance with the ethics rules.
  • C.  To make an inquiry of bar counsel about the representation.
  • D.  To detect conflicts of interest when considering new employment.

Question 3

Vermont has a rule that imputes certain types of a lawyer’s conflicts to all other lawyers in the same firm.  Does the rule impute a paralegal’s conflict to other lawyers in the same firm?

  • A.  Yes, and the firm must decline the representation.
  • B.  No, but the paralegal should be screened from involvement in the new matter.
  • C.  Yes, but only to any lawyer who supervises the paralegal.

Question 4

Do Vermont’s rules on conflicts of interest allow a client to consent to waive a conflict that might arise in the future?

  • A.   No.
  • B.   Yes.  The advance waiver is subject to the same test as any other conflict waiver.
  • C.   Yes, but only if the client is a “sophisticated client.”
  • D.   Yes, but only if the client is a “sophisticated client” who has previously retained the lawyer in other matters.

Question 5

The people in the pictures below are Sarah Paulson and Courtney Vance.  The pictures are stills from a documentary in which each portrayed a lawyer who was involved in the OJ Simpson criminal trial.

Talk about competence!

In 2018, each won an Emmy Award for their work in the documentary.   Name the lawyers that each played.

 

[1] Note – I bought a new stove in December. It has a griddle built-in to the stovetop.  I’ve used it to make grilled cheese sandwiches a few times. I prefer the frying pan method.

NYSBA Task Force issues guidelines on a lawyer’s use of artificial intelligence.

Michael 2 Comments

More and more guidance on a lawyer’s use of artificial intelligence is emerging.  Last December, I blogged here about advisory opinions issued by the Florida and California bars. Today, I write to share the recently released Report and Recommendations of the New York State Bar Association Task Force on Artificial Intelligence.

The report is thorough. It includes the following sections:

  • Evolution of AI & Generative AI
  • Benefits and Risks of AI and Generative AI Use
  • Legal Profession Impact
  • Legislative Overview and Recommendations
  • AI & Generative AI Guidelines

Legal ethics and professional responsibility figure prominently in two sections.

The section titled “Legal Profession Impact” includes a sub-section devoted to “Ethical Impact.” In turn, the sub-section addresses seven areas:

  • Duty of Competence
  • Duty of Confidentiality & Privacy
  • Duty of Supervision
  • Unauthorized Practice of Law
  • Attorney-Client Privilege and Attorney-Work Product
  • Candor to the Court
  • Judges’ Ethical Obligations.

I don’t want to use block quotes or regurgitate the report. Rather, if interested, I suggest reading the report.  That said, I want to draw attention to two aspects of the section on “Ethical Impact.”

The first is the quote used to open the discussion of the Duty of Competence.  The quote serves as an important reminder to any lawyer who thinks they can ignore developments in technology:

  • “A refusal to use technology that makes legal work more accurate and efficient may be considered a refusal to provide competent legal representation to clients.”[1]

Next, any lawyer or legal professional who uses generative AI would be well served by reviewing the examples of how “attorney-client privileged information or attorney-work product [could] be revealed when directing and indirectly using generative AI tools such as ChatGPT or GPT-4.”[2]

Now I’ll move on to the next section in which legal ethics figures prominently.

The “AI and Generative AI Guidelines” appear on pages 57-60. Each guideline cites to a specific conduct rule – 14 in total – and then shares a tip on how to ensure compliance with the rule when using AI. Again, I’m not going to regurgitate the rules or guidelines here. Read them.  However, as a former chair of the VBA’s Pro Bono Committee, I’ll happily reshare this. 

New York’s pro bono rule states that “[l]awyers are strongly encourage to provide pro bono legal services to benefit poor persons” and goes on to suggest that lawyers aspire to provide 50 hours of pro bono legal services per year.[3]  The Task Force’s guideline related Rule 6.1 states that artificial intelligence

  • “may enable you to substantially increase the amount and scope of the pro bono legal services that you can offer. Considering Rule 6.1, you are encouraged to use [AI or generative AI] to enhance your pro bono work.”

Finally, with AI and generative AI so entwined with a lawyer’s duty of competence and the responsibility to stay abreast of the benefits and risks of relevant technology,[4] I’m struck by how incompetent I am to blog about the topic. If anyone should be authoring this post, it’s The First Brother. PK works for Amazon Web Services. His title is “Generative AI Lead Engineer.” In a nutshell, he writes AI that allows AWS clients to automate their workflows. 

I guarantee you this: The First Brother is far more equipped to wax intelligently on legal ethics & professional responsibility than I am on generative AI.[5]  Who knows what will happen as both technology and our understanding of who should be authorized to provide legal services evolve? Maybe the legal profession will be so disrupted that the First Brother replaces me as bar counsel.[6]

You heard it here first!

As always, let’s be careful out there.

[1] Footnote 123 attributes the quote to Nicole Yamane, Artificial Intelligence in the Legal Field and the Indispensable Human Element Legal Ethics Demands, Sept. 24, 2020, Georgetown Univ. Law Center, https://www.law.georgetown.edu/legal-ethics-journal/wp-content/uploads/sites/24/2020/09/GT-GJLE200038.pdf

[2] Citation omitted. The examples appear on pages 34 and 35 of the Task Force’s Report & Recommendations.

[3] Vermont’s rule, which is similar, is here.

[4] V.R.Pr.C. 1.1, Cmt. [8]

[5] The Judiciary recently swapped out my old laptop for a new HP ProBook. It worked great in the office after the tech person set it up. At home? Different story. Took me a few hours to find the power button. Turns out, it’s a button in between “prt scr” and “delete.”

[6] More likely, AI will replace me. As I blogged here, it’s already pretty darn good at providing legal ethics guidance.

Related Posts

A lawyer’s duties when using artificial intelligence

Artificial intelligence & fabricated case law: a lesson in tech competence

Monday Morning Honors #294

Michael Leave a comment

Happy Eclipse Day! 

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

Honor Roll

  • Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labor
  • Andy Delaney, Martin Delaney & Ricci
  • Robert Grundstein
  • Ryan Kane, Vermont Deputy Solicitor General, Office of the Attorney General
  • Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
  • Douglas Keehn, Assistant Attorney General, Medicaid Fraud & Residential Abuse Unit
  • Patrick Kennedy, The First Brother
  • Jordana Levine, Marsicovetere & Levine
  • Jeffrey Messina, Flynn Messina
  • Patrick Olmstead, Patrick Olmstead Law
  • Keith Roberts, Darby Kolter & Roberts
  • Stephanie Romeo, Ryan Smith & Carbine
  • Jonathan Teller-Elsberg, Staff Attorney, New Hampshire Legal Assistance
  • Jason Warfield, Jason Warfield Family Law & Mediation

ANSWERS

Question 1

Here’s a few sentences from one of the comments to a rule.  What of the 7 Cs of Legal Ethics does the rule address?

  • “To determine whether a _______ exists, a lawyer should adopt reasonable procedures, appropriate for the size and type of firm and practice, to determine in both litigation and nonlitigation matters the persons and issues involved. Ignorance caused by a failure to institute such procedures will not excuse a lawyer’s violation of this rule.”

CONFLICT OF INTEREST.   V.R.Pr.C. 1.7, Cmt. [3]

Question 2

Some might consider it a distinction without a difference, but which is correct?  Vermont’s rule on fees:

  • A.  prohibits a lawyer from charging an unreasonable fee.  See, V.R.Pr.C. 1.5.
  • B.  requires a lawyer to charge a reasonable fee.

Question 3

Another C.   A comment to the rule that addresses this “C” acknowledge that compliance with the duty “can result in grave consequences to the client, including not only a sense of betrayal but also loss of the case and perhaps a prosecution for perjury.”  Still, compliance is required.

Which C?

CANDOR.   V.R.Pr.C. 3.3, Cmt. [11]

Question 4

Imagine this situation: Person meets with Lawyer to discuss forming a client-lawyer relationship. Person took the meeting in good faith. That is, Person did not take the meeting for no other purpose than to disqualify Lawyer from representing anyone else in the matter.  Nevertheless, following the consultation, Person decides not to retain Lawyer. Now, someone else wants to retain Lawyer in the same matter.

Which is most accurate?

  • A.  Vermont has a rule that addresses this exact situation.  The rule sets out the duties a lawyer owes to a prospective client.
  • B.  Vermont does not have a rule that addresses this exact situation.  Rather, Person will be deemed a “Current Client” and the situation analyzed under the rule that addresses “concurrent conflicts of interest.”
  • C. Vermont does not have a rule that addresses this exact situation.  Rather, Person will be deemed a “Former Client” and the situation analyzed under the rule that addresses the duties owed to former clients.
  • D.  Mike, I object to the premise of your question.  There is no world in which a client could possibly decide against retaining me after having met me.

I blogged about the rule 3 times last week. The posts are:

Question 5

It has been far too long since Question 5 involved My Cousin Vinny. So, with the intro having involved gambling, here we go!

My Cousin Vinny includes a famous scene in which Vinny explains offers, counteroffers, and negotiations.  The explanation is part of his attempt to collect bet that Mona Lisa Vito had won, but that the loser had not paid.

What had Mona Lisa Vito (successfully) bet on herself to win?

And because I set the rules here and am allowed blogger’s license, no credit for anyone who suggests that it was more of a hustle than a bet.

A game of pool.  The “collection” scene is here.