Five for Friday #182

Welcome to #182!

It’s rare that the blog comes live from the scene of the week’s number.  Of course, it’s appropriate for today to be marked by a rare occasion.  After all, “rare occasion” seems to be a theme in the legal ethics news this week: (1) two lawyers were reprimanded for almost fighting in court; and, (2) three judges were suspended as a result of a late-night fight that led to one of them being shot.

Let’s hope “rare occasion” remains the most accurate descriptor for such conduct.

Anyhow, this morning, I’m live and local from the kitchen table in my dad’s house in Flat Rock, North Carolina.  I’m here for two reasons.

  • Tomorrow I’m running the Tryon Half Marathon.
  • 82 years ago today, my dad burst onto the scene live & local at Colchester’s Fanny Allen Hospital.

Happy Birthday Dad!

(For you naysayers, 82 is close enough to 182.)

Earlier this morning, I drafted this blog.  Before I hit “post,” I went for a run. I had a nagging thought that I shouldn’t post the draft.  As I ran, I realized I was right.  It was a bit too preachy and self-indulgent. Thankfully, I took time to reflect before posting.  Here’s what I wanted to say.

In 2014, my dad and I ran a 5K in Asheville on Thanksgiving.  My dad won his age group.

IMG_0445

Just over two months ago, my dad had open heart surgery.  He’s doing great and rehab is going well.  But, as well as it’s going, it frustrates him a bit.  So far, he’s been limited to walking.  Some of the walks are on the treadmill under the supervision of his rehab providers, others are around his neighborhood.  Yesterday, he told me that, next week, he’s going to ask his doctor if he can start to incorporate jogging into the rehab routine.  This morning, I asked him what his goal is:

  • 200 yards.

It might not sound like much, and certainly isn’t a 5K, but my dad’s goal is an important lesson.

Lots of us set goals that we never meet.  If you’re anything like me, the failure to meet a goal often results less from an inability or unwillingness than from a failure to break the goal into manageable steps.  If my dad tried to run a 5K next week, he’d end up on the operating table.  Or worse.  But, by starting with a few hundred yards at a time, he might someday again run the Turkey Trot.

When I speak on attorney wellness, the goals I most often hear lawyers profess are (1) catch up on my work; and (2) improve my work-life balance.  Each is a fantastic goal.  Remember, though, you likely aren’t going to accomplish either by the end of the weekend.  But you can take the first steps.

Somewhere in that pile on your desk, there’s a letter to write or call return.  Write it, make the call.

Saturday morning will be here before you know it . When you wake up, don’t check your work email while you’re having coffee.

The letter, phone call, and 3 minutes away from your email might not sound like much.  But each is a manageable step.  In other words, each is your 200 yards.  Repeated consistently, you’ll reach your goals.  And when you do, thank my dad.

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

A lawyer has a duty to reasonably consult with the client about the means by which the client’s objectives are to be accomplished.

  • A.   False.  The lawyer controls the means.
  • B.   False.   The lawyer shall abide by a client’s decisions with respect to the means by which the client’s objectives are pursued.
  • C.   True.

Question 2

In representing a client, a lawyer _______ not use means that have no substantial purpose other than to embarrass, delay, or burden a third person.

Which is most accurate?

  • A.   This is a rule.  And the blank is “shall.”
  • B.   This is not a rule. It’s an aspirational comment to one of the rules. And the blank is “should.”

Question 3

A lawyer is holding funds to which both a client and third person claim interests. Their interests are in dispute.  By rule, the lawyer must:

  • A.  disburse the funds as directed by the client
  • B.   hold the funds until the dispute is resolved
  • C.   withdraw from representing the client
  • D.   A or C

Question 4

If an attorney calls me with an inquiry and my response includes use of the word “imputed,” what did the attorney most likely call to discuss?

  •  A.  Reviewing an adverse party’s social media posts
  •  B.  Trust account management
  •  C.  A potential conflict of interest
  • D.  Advising a client to change the privacy settings on her social media platforms

Question 5

 Earlier this year, I blogged about Andrew Manitsky.  Not only is Andrew in a band, he’s my go-to guy when I have questions related to intellectual property and trademarks.

The 2019 American Music Awards are scheduled for November 24.  The artist who will be honored as the AMA Performer of the Decade planned to perform the songs that helped the artist earn the honor.  Songs that the artist wrote, sang, and made famous.

However, this week, the artist took to social media to allege that the label that owns the rights to the artist’s catalogue is refusing to let the artist perform the artists own songs during the ceremony and, further, has also banned the artist from using the music in an upcoming Netflix documentary about the artist’s career.  The label responded by accusing the artist of disseminating “false information.”

Regular readers will certainly know whose side I’m on!

Name the artist.

 

 

 

Incivility Results in Public Sanctions

I’ve blogged often on civility.

In Don’t Be a JerkI argued that effective advocacy and civility aren’t mutually exclusive.

Later, in Advoacy, Decorum, and Grover, I noted (for the first of what would be many times) my opinion that there’s a correlation between civility and wellness.

Most recently, in So Your Client Thinks She’s Funny, I wrote about the opinion in which the Delaware Supreme Court took the opportunity “to remind counsel that they have a responsibility to intercede and not sit idly by as their client engages in abusive deposition misconduct.”

Which brings me to today’s lesson.

Two days ago, Mike Frisch of the Legal Profession Blog posted No Alibis. It’s the story of a disciplinary opinion that the Louisiana Attorney Discipline Board issued on November 4.

The LADB’s opinion is here.  The money paragraph:

  • “Common sense dictates that an attorney must know that his actions will disrupt the court if he, during the course of a hearing or trial, threatens to ‘punch the shit’ out of opposing counsel, even if arguably he was provoked by opposing counsel. To hold otherwise would provide an excuse to any attorney engaging in such behavior by simply saying, in effect, ‘I did it, I know it was wrong, but I didn’t intend to do it'”.

The lawyer received a public reprimand.  Earlier this year, the other lawyer involved did as well.  Per the LADB’s most recent opinion:

“With one exception, discussed below, the facts are not in dispute. On August 20, 2018 Respondent appeared in Orleans Parish Criminal District Court, Section “F”, Judge Robin Pittman, representing a Mr. Ron Edwards on the State’s motion for a bail increase. Mr. Iain Dover, Assistant District Attorney, appeared for the State.

During argument on the State’s motion, Respondent stated to the Judge that the victim, Mr. Edwards’ girlfriend, had on a prior occasion brought false charges against Mr. Edwards and ultimately pled guilty to filing a false police report.

In response to Respondent’s statement about the victim, Mr. Dover stated:

Excuse me, sir. You’re a liar.

Mr. Spears responded: And I will punch the shit out of you if you call me a liar, again.

Mr. Dover doubled down, after being challenged by Respondent to call me a liar again,
stating: Liar.

At this point in the transcript of the August 20, 2018 hearing, the court reporter wrote:

Mr. Spears: (Raises fist up to Mr. Dover)
Mr. Dover: (Raises arm up in a blocking motion)

Finally, Respondent stated: …but perhaps we can settle this outside the courtroom.”

One might argue that, with each lawyer receiving a public reprimand, this one ended in a draw.  I’d disagree.  To me, when incivility is met with incivility, nobody wins.  Not the lawyers, their clients, or the profession.

Don't Be a Jerk

Wellness Wednesday: Unplug

I confess: today’s topic isn’t much more than a regurgitation of a blog I posted this summer.  However:

  1. It’s important.
  2. I’m pressed for time and out of ideas.
  3. And it gives me an excuse to ask readers to share their favorite episodes of MTV Unplugged.  More on that later.

wellness

In July – a time & place that seems so far away this morning – I posted Vacations, Devices and Vacations from Devices.  The post highlighted excerpts of this report issued by the Massachusetts Supreme Judicial Court’s Steering Committee on Lawyer Well-Being.

I focused on the fact that the report identified “the pace of work” as one of 8 major issues affecting lawyer well-being.  In particular, that so many of the Steering Committee’s sub-committees urged legal employers to encourage lawyers to take vacations that include vacations from their devices.  For instance, the Massachusetts Bar Association Sub-Committee on Attorney Well-Being wrote:

  • “By far, the single most common cause of stress among all the disparate areas of legal practice was technology. The fact that technology allows attorneys to always be accessible to colleagues, partners, clients, and courts creates the expectation that they will always be accessible. Technology impacted the ability of attorneys to unwind, relax, and focus on the nonlegal aspects of their lives. They expressed concern that, if they do not respond to partners’ emails, texts or calls immediately, that they will lose their positions. They also believe that law firm culture demands that they remain accessible in order to meet billable hour requirements and to advance within the firm.”

And,

  • “Client expectations of full-time access with no boundaries is bolstered by the
    competitive nature of the practice of law. Attorneys reported that they fear that clients who demand immediate responses to emails and cellphone access, regardless of the date and time, will go elsewhere if the attorneys do not respond quickly enough. Reviewing work emails, text messages, and responding to work-related phone calls at all hours interferes with family time, social interactions, and self-care. A common issue among the responding attorneys is that they feel they never truly get away from work to recharge.”

In the end, the Steering Committee urged legal employers to “encourage vacations, set limits on client access, and allow attorneys to establish boundaries to them to devote time to self-care and family life, without fear of retribution.”

I’ve often mentioned Jeena Cho.  Jeena is a lawyer, author, and mindfulness instructor.  In my opinion, Jeena is one of the most important voices in the attorney wellness discussion.

Earlier this month, the ABA Journal’s On Well-Being column featured Jeena’s post Adults need screen time limits too.  It’s a great reminder that it’s perfectly okay to go more than a minute without checking your cell phone or work email.

I’m guilty of all the bad habits Jeena lists in her column.  Just last night I woke up around 1:00AM.  I was thirsty.  Inexplicably, before I walked to get a glass of water, I checked my cell phone – which was in my bed – to see how my NBA fantasy team did in last night’s games.  That is a problem!

Anyhow, this morning, I was struck by the “Intentionally Unplug” section of Jeena’s post:

When is the last time you intentionally ‘unplugged’ from your digital device? I’ve found that carving out regularly scheduled time where I give myself an opportunity to unplug is helpful in allowing me to better connect with my family as well as myself.

There are many pockets of time where you can institute ‘unplugged’ time. Some people observe the “digital sabbath” turning off the phone and laptop on Saturday evening and not turning them on again until Sunday evening, while others practice no screen time during meals.

If you’re like most lawyers and always eat lunch at your desk, looking at a screen, take yourself out to lunch once a week where you don’t look at your smartphone.”

Excellent advice!

It’s time for Wellness Wednesday to morph from a hashtag to action.  I’ll start.  Here’s how.

As many of you know, I love to run.  Among other things, whether I run 3 miles or 18, I love the time that goes by without checking my phone. I never bring it with me  . . .

. . .except on the rare occasions I run on a treadmill.  Then, I use my phone to listen to music or podcasts. Of course, at the same time, I find myself glancing at it to see if a text or email has popped in.  The intervals between glances grow shorter with every step.

That defeats the purpose of going for a run!

It’s so damn cold that today’s run will be on a treadmill at the gym.  I vow to leave my phone in my car.

Unplug. It’ll help you recharge.

Oh yeah, MTV Unplugged.  The interwebs are chock full o’ lists of the top performances ever.  My favorite? The Mariah Carey & Trey Lorenz cover of the Jackson 5’s I’ll Be There.

. 

 

 

Mobile Payment & Legal Fees

I’m not what anyone would call “young.”  But you know what I don’t use anymore?

Checks.

I write one per month: to my homeowner’s association.  I pay my other bills via online payments options tied to my bank account or credit card.  If I owe anyone money, I either (a) buy them a beer and say, “let’s call it even;” or (b) send it via Venmo or PayPal after they question my definition of “even.”

I expect that this will be controversial:  I hope that the conduct rules are never interpreted or applied to prohibit lawyers and law firms from accepting payment – including retainers – via services like Venmo and PayPal.

As alluded to in the opening paragraph, it’s a question we need to resolve.  An ever-growing number of consumers of legal services do not use cash or checks. I think lawyers need to consider whether not having, say, a firm Venmo account will cost the firm a potential client who asks “to Venmo” the retainer.

I’m aware of only one advisory opinion directly on point.  It’s the South Carolina Bar’s Ethics Advisory Opinion 18-05.   (Note: this post is NOT about credit card payments or the numerous advisory opinions on credit card payments.)

Cutting to the chase, here’s the conclusion reached by the SC Bar:

  • “Accordingly, Lawyer may elect to establish a dedicated trust account via an online payment service provider, but funds received into that account are likely to be nominal or short-term, thus requiring in turn a transfer of those funds to an IOLTA account. Lawyer should be aware of an elevated risk of non-collection under these circumstances in making the individual determination as to whether he is willing to receive funds belonging to third parties via an online payment service
    provider, PayPal or otherwise.”

Makes sense to me.

Remember: “trust account” is a term that gets thrown loosely.  There’s a difference between a “trust account” and a “pooled interest-bearing trust account.”

If a lawyer represents me and is holding money in connection with the representation, there’s no question that the money must be held in trust.  The only question is this: are the funds reasonably expected to earn net dividends or interest?

If the answer is “yes,” the money must be held in a trust account.

If the answer is “no,” which it most often is, then the funds must be held in a “pooled interest-bearing trust account in a financial institution in Vermont that has been approved by the Professional Responsibility Board.”   This latter scenario involves what all of us refer to as “IOLTA accounts.” The interest generated by the “pooling” of my funds with funds that belong to my lawyer’s other clients is paid to the Vermont Bar Foundation.

With both this and the South Carolina opinion in my mind, I see no reason why a lawyer or firm can’t create a Venmo account to accept fees that are paid in advance.  Of course, all the other rules apply.  For instance,

  • the account must include a record-keeping system that complies with Rule 1.15A(a);
  • records of funds held in the account must be maintained for 6 years following the termination of a representation;
  • the account is subject to the compliance reviews and audits authorized by Rules 1.15A(b) and 1.15A(c) or audit; and,
  • the lawyer or firm cannot deposit its own fees into the account, except in an amount necessary to pay service charges or fees on the account.

Then, on a regular basis, the lawyer or firm must (1) transfer earned fees to the operating account; and (2) transfer to a pooled-interest bearing trust account (“IOLTA”) at an approved institution funds that otherwise would be deposited into the IOLTA if received by check, cash, or credit card.

In short, I’m on board with the SC opinion and think that the existing rules allow lawyers to accept advance payments via methods like PayPal and Venmo.  Of course, others might disagree with me. That’s fine.  If I’m wrong, we should change the rules and expressly allow lawyers and their clients to transact business in a way that society has deemed commercially reasonable.

One final note: if you or your firm has a Venmo account, you might want to suggest to clients who use it that they change their privacy settings.  I can imagine a few friends of mine reacting uncomfortably when confronted by spouses who saw a payment to a law firm on their Venmo feeds.

For more, here’s an Above The Law post that’s a primer of sorts on different methods of digital payments.  Finally, a related post: Bitcoin as Payment for Legal Fees.

Dollar Sign

 

 

Monday Morning Answers #181

Friday’s “Glass Half Full” post is here.  Today is where the rubber hits the road: it’s Monday morning with a winter storm in the forecast.

Image result for serenity now images

Friday’s quiz questions are in the post linked above. The answers follow today’s Honor Roll.

Honor Roll

  • Karen AllenKaren Allen Law
  • Matthew AndersonPratt Vreeland Kennelly & White
  • Penny Benelli, Dakin & Benelli
  • Mimi Brill, Windham County Public Defender
  • Honorable John M. Conroy, United States Magistrate Judge, District of Vermont
  • Erin GilmoreRyan Smith & Carbine
  • Robert Grundstein
  • Anthony IarrapinoWilschek & Iarrapino
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
  • John LeddyMcNeil Leddy & Sheahan
  • Mick LeddyMcNeil Leddy & Sheahan
  • Tom LittleLittle & Cicchetti
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Jack McCullough, Project Director, Mental Health Law Project
  • Jeffrey MessinaBergeron Paradis Fitzpatrick
  • Herb Ogden, Esq.
  • Jim Runcie, Ouimette & Runcie
  • Jonathan Teller-Elsberg, Vermont Law School, JD Candidate
  • Benjamin TraverseDown Rachlin Martin
  • Zachary York, Vermont Superior Court, Chittenden Civil 

Answers

Question 1

Fill in the blank. (choices below)

By rule, a concurrent conflict of interest exists if there is ___________________ that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

  • A.   an appearance
  • B.   the potential
  • C.   even an iota of a chance
  • D.   a significant risk.   V.R.Pr.C. 1.7(a)(2).

Question 2

The Vermont Supreme Court declared November as “Access to Justice” month.  By rule, a substantial majority of a lawyer’s pro bono hours should be provided to:

  • A.   persons of limited means.
  • B.   charitable, religious, civic, community, governmental and educational organizations in matters which are designed primarily to address the needs of persons of limited means.
  • C.  A or B.  V.R.Pr.C. 6.1
  • D. None of the above.  The rule is quite vague.

Question 3

The rule that prohibits undignified or discourteous conduct that is degrading or disrupting to a tribunal _____________

  • A.   applies only in proceedings before a judge or judicial officer.
  • B.   applies to any proceeding of a tribunal, including a deposition.  V.R.Pr.C. 3.5, Comment [5]; See this post for how the rule applies when your client disrupts a deposition.
  • C.   was recently abolished by the Vermont Supreme Court in a disciplinary decision that concluded that the rule violated the First Amendment to the U.S. Constitution.
  • D.  Objection to the premise.  There is no such rule.

Question 4

Which is most accurate?

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 addressed in the rules of professional conduct.

Question 5

Not sure if you’ve heard, but whistleblowers have been in the news.

The Laundromat is a movie that dropped on Netflix a few weeks ago.  Directed by Steven Soderbergh, it stars Meryl Streep, Antonio Banderas and Gary Oldman.  Reviews are mixed. (glass half-full vs. glass half-empty!)

Anyhow, the movie is based on real-life law firm Mossack Fonseca and a whistleblower’s 2016 leak of 11.5 million confidential documents that detailed the financial information & activity of many of the firm’s wealthiest clients.  The documents tended to show that the firm specialized in creating shell corporations to help its clients hide their vast sums of money.

In April 2016, the New York Times wrote that Mossack Fonseca “was built on assurances of bulletproof privacy for its clients.”  Umm, I guess not so much.

What’s the name that’s been given to collective client documents that were breached and disclosed by the whistleblower?

The Panama Papers

Image result for the laundromat movie images

Five for Friday #181

I made a choice this morning.

By way of background, let’s pretend we’re playing Family Feud.  The question is this:

  • “Top 3 answers on the board.  Name something that Mike doesn’t like.”

I hadn’t even typed the “e” in “like” before I heard you pound the buzzer!

“Winter.”

It’s numbers 1, 2, and 3.

Nevertheless, when I woke up this morning, I chose to view the glass as half-full.  Granted, had I left a glass on my deck last night, it’d have been half-full of snow at 6AM.  But the fact that the glass would’ve remained half-empty is reason enough to approach the day with a glass-half-full attitude.

Which is why I choose to mention Norman Rockwell in today’s opening.

I’m no art connoisseur.  Besides The Last Supper and album covers, my art knowledge is pretty much limited to Warhol’s soup cans and Norman Rockwell’s Tough Call.

Image result for tough call norman rockwell

A print hung in our basement for years when I was a kid. It fascinated me.  Not so much as an art fan, but as a sports fan.

It depicts a game between the Pittsburgh Pirates and Brooklyn Dodgers.  With Pittsburgh leading 1-0 as the Dodgers bat in the bottom of the 6th, rain is falling.  As the umpires contemplate whether to call the game, Brooklyn’s manager happily points to the sky as his Pittsburgh counterpart glowers.

The scene always confused me.  Why would the Brooklyn manager be happy that it’s raining? If the game is called, the score would revert to the last completed inning and Pittsburgh would win.

It bothered me for years.  Until I learned that there’s a different interpretation.

The Brooklyn manager isn’t happy that it’s raining . . . he’s happy that the rain is about to stop.  When it does, the game will continue, and his team will have a chance to win.  You can read more about the theory here.

Anyhow, why I am writing about this?

Well, like I said, when I woke up to the weather, I chose to take a “glass half-full” approach. Then, as I researched potential topics for today’s intro, I learned that Norman Rockwell died 41 years ago today.  Which was very ironic.  Because, whenever I think of Rockwell, I immediately think of Tough Call.  And, to me, the work perfectly captures the moment in which you have either a “glass half-full” or “glass half-empty” response to the weather.

I’m not just a little stitious, I’m superstitious.   I interpret stumbling across a Rockwell reference mere moments after choosing to take glass-half full approach to the weather to confirm that I made the right choice.

There are different ways to choose to interpret most everything in life.  To that end, may your glass never be less than half-full.

Onto the quiz!

Rules

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception – but one that is loosely enforced – #5 (“loosely” = “aspirational”)
  • 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

Fill in the blank. (choices below)

By rule, a concurrent conflict of interest exists if there is ___________________ that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

  • A.   an appearance
  • B.   the potential
  • C.   even an iota of a chance
  • D.   a significant risk

Question 2

The Vermont Supreme Court declared November as “Access to Justice” month.  By rule, a substantial majority of a lawyer’s pro bono hours should be provided to:

  • A.   persons of limited means.
  • B.   charitable, religious, civic, community, governmental and educational organizations in matters which are designed primarily to address the needs of persons of limited means.
  • C.  A or B.
  • D. None of the above.  The rule is quite vague.

Question 3

The rule that prohibits undignified or discourteous conduct that is degrading or disrupting to a tribunal _____________

  • A.   applies only in proceedings before a judge or judicial officer.
  • B.   applies to any proceeding of a tribunal, including a deposition.
  • C.   was recently abolished by the Vermont Supreme Court in a disciplinary decision that concluded that the rule violated the First Amendment to the U.S. Constitution.
  • D.  Objection to the premise.  There is no such rule.

Question 4

Which is most accurate?

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 addressed in the rules of professional conduct.

Question 5

Not sure if you’ve heard, but whistleblowers have been in the news.

The Laundromat is a movie that dropped on Netflix a few weeks ago.  Directed by Steven Soderbergh, it stars Meryl Streep, Antonio Banderas and Gary Oldman.  Reviews are mixed. (glass half-full vs. glass half-empty!)

Anyhow, the movie is based on real-life law firm Mossack Fonseca and a whistleblower’s 2016 leak of 11.5 million confidential documents that detailed the financial information & activity of many of the firm’s wealthiest clients.  The documents tended to show that the firm specialized in creating shell corporations to help its clients hide their vast sums of money.

In April 2016, the New York Times wrote that Mossack Fonseca “was built on assurances of bulletproof privacy for its clients.”  Umm, I guess not so much.

What’s the name that’s been given to collective client documents that were breached and disclosed by the whistleblower?

Quality Work Won’t Excuse An Excessive Fee

Last week, the New Jersey Supreme Court disbarred an attorney who charged an excessive fee and engaged in fraudulent and deceptive billing practices.  The ABA Journal reported the story here.  The Court’s disbarment order is here.

The Court’s order adopted this recommendation from the New Jersey Disciplinary Review Board.  In my view, the Board’s recommendation includes valuable tips.

Rule 1.5(a) of the Vermont Rules of Professional Conduct states that “a lawyer shall not make an arrangement for, charge, or collect an unreasonable fee or an unreasonable amount of expenses.”  We do not have many reported disciplinary decisions involving unreasonable or excessive fees.  The most recent is this one.

Indeed, we do not receive many fee complaints.  And, when we do, most of them are garden variety fee disputes that, as authorized by the rules that govern the Professional Responsibility Program, we refer to the Vermont Bar Association’s Committee for the Arbitration of Fee Complaints.

The New Jersey case was far more serious than a “garden variety fee dispute.”

The client hired the respondent to represent her in her capacity as the executrix of her husband’s estate.  Three initial points:

  1. Respondent billed the client “674 hours, for a total fee of $120,275.25, of which she paid $88,199.68.”
  2. The client fired the respondent.  New counsel began from scratch and completed the work for a total of $12,912.50.
  3. At the disciplinary hearing, an expert testified that he would have completed the work for no more than $15,500.

Some key lessons from the opinion:

  • The respondent argued that his work netted the client a significant tax savings.  The Board responded: “The bulk of respondent’s defense was that it was critical for him to eliminate the $23,243 in New Jersey estate taxes, but he ignored the fact that he billed the estate almost six times the amount of the tax savings ($120,275.25).”

I’ve not seen anything that extreme.  But, be wary: charging $X for a client to recover significantly less than $X could easily get a lawyer into hot water.

  • The respondent argued that his billing records were accurate and that the work he did was of good quality.  Nobody disagreed.  Not the disciplinary prosecutor, not the Disciplinary Review Board. However, ss the Board stated:
    • “Respondent failed or refused, at every turn, to understand the issue in this
      case. His lack of understanding is illustrated by his statement that he would have been sued for malpractice if he had not provided the services he did. Although the [disciplinary prosecutor] had stipulated that the quality of respondent’s services was not in question, when respondent was repeatedly confronted with the fact that he was not defending the actual charges, he simply replied that he was merely proving that he did the work.”

Billing for work that isn’t necessary is unethical.  It’s a violation of the rule that prohibits unreasonable fees.  In addition, as the NJ Board noted, clients are entitled to assume that their lawyers will not charge them for work that is not required and has no bearing on the objective of the representation.  When such “overreaching” demonstrates “a significant disconnect between the amount of work reasonably necessary to resolve a client’s matter and the amount billed,” it’s deceptive and fraudulent.

  • A chunk of the bill was for time spent getting up-to-speed on “ancillary probate issues” that arose, of all places, in Vermont.  The Board concluded that, in and of itself, charging to learn the law isn’t unethical per se.  But when the entire matter could’ve been done for $15,000, charging $23,000 to “educate himself at the expense of the client . . . is both unethical and fraudulent.”

Be careful how much you charge to get up to speed on a client’s matter.

In closing, anyone who has ever heard me speak on Rule 1.5 and issues related to billing has heard me clearly state that “it is not unethical to charge your clients.”  My tips:

  • at the outset, tell clients what you will charge;
  • at the outset, give clients a reasonable expectation of how much time the matter will take; and,
  • send regular invoices.

In other words, treat your clients the same way you’d want to be treated by someone you hire to do something for you.

Finally, don’t assume that “if a client complains, the worst case will be fee arbitration.” While it hasn’t happened in a long time, one of these days, the worst case will be, quite literally, the worst case.  And worst cases usually result in disciplinary sanctions.

Dollar Sign

 

 

Wellness Wednesday: Judge McCaffrey Redux

Last Friday, the Rutland courthouse that houses the criminal and family units was renamed the Francis B. McCaffrey Courthouse.  Governor Scott marked the occasion with this executive proclamation, while the Rutland Herald covered the dedication ceremony.

Judge McCaffrey passed away in October 2018.  Shortly thereafter, I posted this blog about him and his unceasing efforts to promote wellness in each and every person he encountered.  The words I heard during the dedication ceremony spur me to write again on Judge McCaffrey and wellness.

A common theme emerged in the remarks delivered last Friday: Judge McCaffrey looked for the good in everyone.  Not as a part of a search to determine if it was there, but because he knew it was there, but might need help to be drawn out.  To me, Judge McCaffrey looked for the human in the being.

That’s part of attorney wellness.

Many attorneys are coping with behavioral health issues, often rooted in anxiety, stress, depression, and substance abuse.  As we work to de-stigmatize those issues within the profession, our task includes looking for the human in the attorney.

Long ago, I prosecuted a disciplinary case against a lawyer whose practice cratered as a result of significant mental health issues.  Deadlines were missed, clients were lied to, a lot of harm resulted.

During the case, I learned something that I’ve never forgotten: each and every day, that lawyer woke up fully intending on doing better than yesterday.  Intent on digging out of the hole into which the attorney had slipped.  In other words, the good in the attorney still existed and it fought valiantly to defeat the disease.  Alas, battles were lost along the way.  Perhaps because, back then, we weren’t providing much in the way of reinforcements.

I believe that the good exists in every attorney.  Our job with lawyer assistance is to help lawyers to keep it thriving, without making them fear that asking for help will affect their license to continue to do good.

If you or someone you know is like the lawyer who woke up intent to make each day different than the day before, let me know.  We will help the good in you.  Because, as Judge McCaffrey taught us, we know that it’s there.

Francis Bernard McCaffrey Jr. Obituary

So your client thinks she’s funny?

Rule 3.5(d) prohibits lawyers from engaging “in undignified or discourteousness conduct which is degrading or disrupting to a tribunal.”  I’ve often called attention to Comment [5], which reads:

  • “The duty to refrain from degrading or disrupting conduct applies to any proceeding of a tribunal, including a deposition.”

Tom Little frequently appears on this blog’s #fiveforfriday Honor Roll.  Don’t worry, Tom isn’t suspected of misbehaving at a deposition.  Rather, earlier this week, Tom tipped me off to a story about a decision from the Delaware Supreme Court that addresses a lawyer’s duties when a client disrupts a deposition.

The story, which is here, ran in The Bencher, a publication of the American Inns of Court.  It’s by Francis Pileggi, an attorney who runs the Delaware Corporation and Commercial Litigation Blog and who often blogs on issues related to legal ethics.

The opinion issued in In re Shorenstein Hays-Nederlander Theaters LLC Appeals.  (Try saying that 3 times fast.)  The case involved a theater company’s quest to prevent another from staging two productions.  The underlying facts & legal issues are irrelevant to this post, but for the fact that one of the productions, Dear Evan Hanson, stumped me on Final Jeopardy during this year’s Teen Tournament.

Anyhow, I digress.

The case is complicated: it took the Delaware Supreme Court 50 pages to reach its conclusion.  It’s what happened next that matters here.

The Court attached an “Addendum” to its opinion.  It begins on page 51.  The opening paragraph:

  • “Finally, we comment on one last point that was addressed by the trial court, but is
    not an issue raised by the parties on appeal, namely, the deposition misconduct by Carole Shorenstein Hays. In Paramount Communications Inc. v. QVC Network Inc.,
    this Court addressed, in an Addendum, deposition misconduct by a lawyer at a deposition. This Addendum addresses a less frequently discussed corollary concerning the duty of counsel who is faced with a deponent’s inappropriate conduct at a deposition.”

Beginning on page 53, the Court included excerpts of the deposition given by a Mrs. Hays.  The excerpts continue for 14 pages.  I can’t do them justice.  I think it’s better to provide you with the Court’s first sentence following the excerpts:

  • “This is a representative but incomplete identification of Hays’s ridiculous and problematic responses to questions.”

Then, the Court noted with disapproval the fact that the lawyer defending the deposition refused to put a stop to the deponent’s tomfoolery which, per the Court, “made a mockery of the entire deposition proceeding.”  Thus, the Court took the opportunity “to remind counsel that they have a responsibility to intercede and not sit idly by as their
client engages in abusive deposition misconduct.”  The Court added:

  • “Depositions are court proceedings, and counsel defending the deposition have an
    obligation to prevent their deponent from impeding or frustrating a fair examination. Although counsel can be caught off guard by a client’s unexpected, sanctionable outburst, that is not what happened here. Rather, Hays’s flippant, evasive, ridiculous answers and speech-making continued throughout the entirety of the deposition, which began at 9:38 a.m. and concluded at 7:13 p.m. An attorney representing a client who engages in such behavior during the course of a deposition cannot simply be a spectator and do nothing”

Finally, the Court suggested that lawyers use the case as a teachable moment:

  • “Perhaps this episode can be used positively as a lesson to those training new lawyers on deposition skills. Lawyers have an obligation to ensure that their clients do not undermine the integrity of the deposition proceedings by engaging in bad faith litigation tactics; they cannot simply sit and passively observe as their client persists in such conduct. Given the restrictions on conferring with a client during deposition proceedings, these points obviously should be addressed beforehand in the deposition preparation.”

I understand that the duties of competence & diligence include prepping a client for a deposition.  And I think we’re all familiar with the anecdote about advising a client to listen to the question and answer the question that was asked without providing additional information. For example. the client who should answer “yes” when asked “do you know what time it is?”

But as the Delaware decision makes clear, that only goes so far.  In short, The Shaggy Defense – (“it wasn’t me”) – ain’t gonna cut it if you’re asked why you allowed your client to do what the rules prohibit you from doing.

For those interested, I’ve pasted in portions of the deposition transcript below.

Image result for images of no jerks

Q. How much time did you spend with your counsel to prepare for the
deposition?
A. Sufficient.
Q. How much is sufficient?
A. The appropriate amount needed.
Q. Can you give me an estimate of the amount of time?
A. It was completely enjoyable.
Q. How many times did you meet with your counsel to prepare for the
deposition?
A. Preparation is always a good thing.
Q. That wasn’t my question. How many times did you meet with your
counsel to prepare for the deposition?
A. I met with them – I’m not understanding the question.
Q. You told me you met with your counsel to prepare for the deposition.
A. Sure.
Q. How many times?
A. Well, see, I think of time as a continuum. So I think I met with them from
the beginning to the end. And the beginning was the start, and then there
was the rehearsal, and then there was the preview, and now it’s what I think
of as the performance. So, in my mind, I’m answering what you’re asking.
If you could be more specific. Do you want hours?
Q. Yes.
A. Oh, I don’t wear a watch. So I know the sun coming up in the morning
and the moon coming up at night.
. . .

Q: Did you review any documents to prepare for the deposition?
A. Oh, certainly.
Q. What documents did you review?
A. The ones that were put in front of me.
Q. What were they?
A. Documents.

. . .

Q. Did you graduate from NYU?
A. No.
Q. Did you –
A. Well, maybe. It’s unclear.
Q. You’re not sure?
A. You mean do I have a diploma? No. Did I receive enough credits to
graduate, is that your question?
Q. That’s a question, that’s fine.
A. Is that your question?
Q. Sure.
A. You know, it’s been said that I have
Q. It’s been said that you have what? That you have graduated?
A. It’s been said that.
Q. Do you have a degree from NYU?
A. Do I have something like a piece of parchment?
Q. No. Did you finish the requirements –
A. Did I receive –
Q. If you could wait until I finish my question.
A. Sorry.
Q. Did you complete the coursework and earn enough degrees [sic] to earn
a degree? I don’t care if you have a piece of paper on your wall. I want to
know, did you earn a degree?
A. I don’t recall.
Q. You don’t recall whether you have a degree from NYU?
A. Correct.

 

Monday Morning Answers #180

Welcome to another week.  Friday’s questions are here.  The answers follow today’s Honor Roll.

Honor Roll

  • Karen Allen, Esq.; Karen Allen Law
  • Evan BarquistMontroll Backus & Oettinger
  • Penny Benelli, Dakin & Benelli
  • Mimi Brill, Windham County Public Defender
  • CeCe ConradCostello, Valente & Gentry
  • Erin GilmoreRyan Smith & Carbine
  • Laura Gorsky, Esq.
  • Robert Grundstein, Esq.
  • Glenn Jarrett, Jarrett & Luitjens
  • Aileen LachsMickenberg, Dunn, Lachs & Smith
  • John LeddyMcNeil Leddy & Sheahan
  • Jordana LevineMarsicovetere & Levine
  • Tom LittleLittle & Cicchetti
  • Lon McClintockMcClintock Law Offices
  • Jack McCullough, Vermont Legal Aid, Project Director – Mental Health Law Project
  • Karen Merino, Vermont Law School, JD Candidate
  • Jeff MessinaBergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Herb Ogden, Esq.
  • Jim Runcie, Ouimette & Runcie
  • Audrey Sander, Mariscovetere & Levine
  • Jonathan Teller-Elsberg, Vermont Law School, JD Candidate
  • Jack Welch, Esq.
  • Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

Which lawyer will disciplinary counsel likely treat differently than the others?  A lawyer who:

  • A.   works for a contingent fee in a criminal case.
  • B.   fails to keep copies of his advertisements for at least two years.
  • C.   engages in “puffery” during negotiations with opposing counsel.
  • D.  deposits her own money in trust, but only in an amount necessary to cover bank charges that she knows will occur.

A is prohibited by rule.  B is not a rule.  C and D are not prohibited.

Question 2

Lawyer represents Brady in Brady v. Mayfield.  Lawyer knows that Mayfield is represented by counsel.

Lawyer answers a phone call.  It’s Mayfield.  Before Lawyer can react, Mayfield asks if Lawyer has a few minutes to discuss settlement.  Mayfield adds “i’m calling you directly because I’m trying to keep my legal bills down.  Once we resolve this, I’ll get with my attorney and have her write it up”

You may assume that Mayfield’s lawyer has not consented to Lawyer communicating directly with Mayfield.  Which is most accurate?

  • A.   Lawyer may negotiate with Mayfield.  The rule doesn’t apply when a represented party voluntarily initiates communication.
  • B.   Lawyer must immediately terminate the call.  Rule 4.2, Comment 2

Question 3

Rule 1.2(d) prohibits a lawyer from assisting a client to violate the law.  The rule draws no distinction between state and federal law.  As such, two years ago, Vermont adopted a comment to the rule.

The new comment makes it clear that Vermont lawyers can provide advice and assistance to clients as long as the lawyer (1) reasonably believes that the conduct in permitted under state law, and (2) advises the client of the potential consequences of the conduct under federal law.

The new comment is aimed at lawyers who assist clients on matters related to Vermont’s statutes, rules, and regulations on ______________.

Marijuana/Cannabis

Question 4

Firm has long represented two clients:  A and B.   For years, Client A has worked with Lawyer, while Client B has worked with Attorney.

A intends to sue B.  Both A and B want their long-time counsel to represent them and, as such, are willing to waive the conflict.

Under Vermont’s rule, if A and B consent, can Lawyer and Attorney represent their long-time clients in A vs. B.?

  • A.  No.   Rule 1.7(b).
  • B.  Yes, if each gives informed consent, confirmed in writing.
  • C.   Yes, if each gives informed consent, confirmed in writing and each is advised of the desirability of checking with outside counsel before giving consent.
  • D.  Yes, if each gives informed consent, confirmed in writing and Firm employs reasonable measures to screen A and B from access to each other’s files/client information.

Question 5

Today’s question is inspired by the lyrics posted in the window at Hen of the Wood.

This lawyer was 20 when he graduated from Columbia Law School. He had to wait until he was 21 to be admitted to the bar. Three years later, he gained national prominence for his role as an Assistant United State Attorney in the federal government’s prosecution of Ethel and Julius Rosenberg.

He parlayed that into a job as chief counsel to United States Senator Joseph McCarthy, where he joined Robert Kennedy as counsel on Senator McCarthy’s most well-known committee.

Later, after leaving McCarthy’s office, he had a long career in private practice. Among others, he represented Donald Trump’s business interests and the New York Yankees in litigation that followed the famous George Brett “Pine Tar” incident.

In 1986, the State of New York disbarred him for misappropriation of client funds, lying on his bar application, and pressuring a dying a client to change a will to leave the client’s fortune to himself (the lawyer).

People my age might have learned about him by listening to Billy Joel’s We Didn’t Start the Fire.

Name the lawyer.

Roy Cohn

Image result for roy cohn images