Five for Friday #118: Marathons

Welcome to #118!

The number 118 will always remind me of marathons.  Here’s why.

I ran my first marathon in 2008.  My goal was to be able to say I’d run a marathon.  A few months after I finished, I decided anybody could run 1 marathon, so it’d be better to be able to say “I’ve run 2 marathons.” So, I ran another in 2009.

My goals evolved.  Next was to qualify for the Boston Marathon.  After mulitple failures, I finally did. My current goal is to finish 20 marathons. If I finish, Sunday’s Vermont City Marathon (“VCM”) will be my 20th marathon and 11th VCM.

Don’t worry – I’m about to connect this to 118.

Of the 19 marathons I’ve run, most were positive experiences.  Two exceptions: the 2013 and 2014 Boston Marathons.

2013 was my first Boston.  It was the year of the bombs. Fortunately, I’d finished well and was in my hotel when they exploded.  It was one of the saddest, most surreal days of my life.

I ran Boston again in 2014. I still don’t know whether it was food poisoning or a stomach bug, but the night before the race I came down with the runs – no pun intended.  I couldn’t go 15 minutes without needing to use the bathroom or a port-o-let on the course.  As a result, I struggled throughout, almost quit, and ended with a crappy time.

Pun intended.

My finish devastated me. I had been desperate to do well, if only to honor the 2013 victims.  Once I finished, I walked to Boston Common, sat down, and cried.  It’s the only time I’ve cried after a race and, I think, the last time I cried in my life.

That race was the 118th Boston Marathon. So, 118 (and 117 for that matter) are numbers that I’ll always associate with marathons.

Which is ironic given that the 118th quiz falls on the same weekend as VCM.

Late yesterday, I decided to send an e-mail to some Vermont lawyers who are marathoners.  I posed a few questions that, as you’ll see, are loosely connected to legal ethics.  The lawyers were incredibly kind to reply.  The questions and responses are below.  If this isn’t your thing, feel free to scroll to the quiz.

(note: not every lawyer responded to every question)

The lawyers:

  • Karen Allen, perennial member of the #fiveforfriday Honor Roll
  • Heather Brochu, Deputy State’s Attorney, Franklin County
  • Danielle Fogarty, former champ, PRB Legal Ethics Trivia Contest
  • Howard Kalfus, Hearing Officer, Vermont Judicial Bureau
  • Jordana Levine, perennial member of the #fiveforfriday Honor Roll
  • Josh Lobe, esteemed member of the Board of Bar Examiners
  • Sarah London, Assistant Attorney General
  • Rob McDougall, Assistant Attorney General
  • Walter Morris, Vermont Superior Judge

Kennedy:  In legal ethics & professional responsibility, conflicts of interest can be tricky for lawyers to navigate. With marathons, I’ve noticed several types of conflicts.  Mainly, training can conflict with life.  But, talk to me about this: how do you handle the conflict that often  arrives late in the race: the conflict between the desire to stop and the desire to fight on to the finish?

  • Judge Morris (19 marathons, including 10 or 11 VCMs): As my pace generally slows, training time becomes more and more difficult.  I have learned to be very flexible with the schedule; so, if it is going to be pouring rain on a long mid-week, or weekend run, I just go a day earlier, or a couple of days later.  This Spring has been very challenging, so there’s been lots of that.  As you know, I’m on a two-week taper, having done my 20+ about a week late. On the Grinding out the Finish, I just go into a zone and stay there.  Lots of mantras, drifty and inspiring thoughts, music in my head from the old days, etc.  For Burlington, once I hit the stretch on the bike path, there is no stopping.
  • Heather Brochu (10 marathons, 4 VCMs):  There are a few things that always help me w/my inner struggles during a race.  I try to always remember to run the mile I am in; do not think about how many miles I have to go or if the one before was a tough one.  Also, just the simple competitor in me.  I am sure this is true for all us, I do not like to give up or lose.  I know any pain I feel will subside (physical & mental). Last thing I do often, might be a little sappy, I run for those who cannot.
  • Jordana Levine (4 marathons, 1 VCM):  My challenge in the race usually comes just far enough along but not close enough to the finish, and I just tell myself that if I stop it will take longer, and to just focus on each mile, just get to that next mile marker.
  • Karen Allen (8 marathons, 3 VCMs) I ran a race where I felt incredible sharp pain in my foot, and was about to quit.  I walked a bit and the pain seemed to subside. Not sure how I finished it, all I know is that I was keeping with my pace group and my head said keep going. Not sure I felt my foot again. Anyway, injury was mile 16. Couldn’t quit. Thinking how fortunate I was that I could run.  As it turns out, I ruptured a tendon in my foot.
  • Josh Lobe (13 marathons, 6 VCMs): Not to go all choir boy, but pretty similar for me.  In practice, I always erred on the side of good ethics in any conflict situation.  Close call, don’t take the case, do the right thing, ignore the facts or whatever else arose.  Same thing in a race.  Never had a DNF or even thought about it.  (Walking, now that’s a different story).  No brainer in both cases.
  • Danielle Fogarty (5 marathons): The desire to finish without question outweighs any desire to stop.  I don’t want to stop unless I’ve finished.  So, if I’d like to stop, but am not yet finished, it all becomes mental – tuning in, man this is hard, calm down, relax, focus.  I think of form, steadiness, and all I have to do is keep going.  I tune in that this is the time to do this now … when this is over, it’s over, and I can’t go back.  This is the time to do this now, until I finish.  I hear some are anxious about whether they’ll finish.  I don’t feel anxious about whether I’ll finish … I might get anxious about the pain until I finish… but that ends, too.  I think marathon training trains our mental processes – and that definitely carries over to practicing law.  A time may come when I don’t like what I’m doing – but I tune in to hold form and finish because I can’t go back.
  • Rob McDougall (16 marathons, 3 VCMs): I just try to focus on the mile I’m running. I don’t think about how many I have to go or how many I’ve run so far.
  • Sarah London (11 marathons, 3 VCMs): If I have that thought, it is usually early in the race.  Boston is actually a good course for this – one year I thought I should quit at mile 5 and then realized that, with the roads closed to traffic, running was probably the simplest way to get back.
  • Judge Kalfus (24 marathons, 11 VCMs): I’ve run enough marathons to know three things for sure: 1) this is gonna hurt; 2) I know I can drop but I also know that the pain is for a finite time; and 3) I know that feeling of crossing the finish line after months of training and preparation.  This knowledge is what helps to resolve that conflict that I still feel every time.

Kennedy:  I often urge lawyers that the best way to avoid an ethics complaint is to set reasonable expectations at the outset of a representation.  In marathons, I’m too often not honest with myself and talk myself into unreasonable expectations.  Is that an issue for you?

  • Judge Kalfus: I have historically suffered from the opposite problem.  Growing up, I was quite literally the fat kid in the band.  When I started training for and running marathons, I thought that I was incapable of being the slightest bit competitive.  Then I met someone with my same build who was running these blistering times.  I got a coach, hit the track and started exceeding my own expectations with the coaching and support of my fellow runners.
  • Danielle Fogarty: I’m pretty steady – pretty reasonable – maybe under expecting … I feel like I’m probably safer than I need to be … I think in general my comfort zone like a high safety net.  In practice, I feel clients trust me easily and I need to be careful (not carefree) about that.
  • Josh Lobe: In about half of my marathons, I’ve set unreasonable expectations for myself with pretty much universally disastrous results.  Shockingly somehow in the other half, I set a reasonable goal was to both satisfy the goal and more or less enjoy the experience.
  • Rob McDougall: I always have a pretty good feel for what I can do from training, but so much of the race ultimately depends on “day of” stuff (how I feel, weather/temperature, food/fueling, etc.) that I don’t get too attached to any particular expectation
  • Sarah London: (Note: Sarah has actually won a marathon)  Same coin, different side?  I very rarely break the tape in any race.  Once I remember following a bike towards flashing blue lights and what i thought was police-line-do-not-cross tape and thought, why am I being directed to run right at what must be a car accident.  
  • Heather Brochu: Yes, I often set unreasonable expectations and always think I could’ve/should’ve of done better.
  • Judge Morris:  Expectations?  Just to finish, and enjoy the company.
  • Jordana Levine:  I’m too conservative, I think.  I should probably push myself more.  My goal for this year is to have a half marathon under 2 hours – I’ve been close for the past two or three years.

Kennedy: I preach that the ethical duty of competence includes tech competence.  I used to run by feel and, for years, didn’t use any sort of GPS. Now, I feel naked if I run without my Garmin.  In marathons, I have trouble not looking at my Garmin every 10 steps to make sure I’m not going too fast or slow.  I often wonder if my reliance on technology prevents me from truly enjoying the experience of running and, in a way, making me less competent as a runner.  How about you? Are you into runners’ tech or do you run more by feel?

  • Josh Lobe: I think technology enhances performance, but takes some of the fun out of it.  When I was doing a decent amount of triathlons, when I first got serious on the bike I had my cyclometer, my first generation HRM and something that gave me cadence.  I’d be riding through the beautiful Vermont Countryside and not noticing anything but a bunch of  data flashing in front of me.  I chucked all the electronics and decided to look around.  Much more scenic and safer too.
  • Rob McDougall: Tech! A Garmin watch to tell me the pace I’m running.
  • Jordana Levine:  I run with a gps watch, I think it makes me a better runner – it motivates me, keeps me focused, but also helps me run my feel – because on my mid-week runs I wear it but don’t usually look at it much.
  • Sarah London: Not sure.  One very hot marathon I came to a tall red timing clock that read 4 hours and 25 minutes and I wasn’t even halfway done.  I thought, wow I must be having a really bad day and this Garmin is way off.  Turns out that was a sign for the price of gas.  
  • Judge Morris:  Tech–that’s a no go for me, totally.  I really don’t want live feed as to how I’m doing, I try to stay in touch with my body and mind. Besides, at my stage, carrying even a few ounces of a device is a concern!
  • Judge Kalfus: I’m a tech guy.  I think that without my Garmin, I’d be standing in the middle of the race course wondering what I’m supposed to be doing.  That said, I do dream of someday becoming less compulsive about my running.
  • Heather Brochu: I love my GPS, I feel lost without it.  Not sure that is good.  Before Boston this year I read how Summer Sanders a few years ago went to start her GPS at the start of Boston and then came to the realization that her whole obsession with time was getting to Boston, not running it.  She did not start hee GPS and instead ran race for pure enjoyment.  I tried not to use GPS this Boston.  I looked it at very little and tried to run on feel and pure enjoyment, just loving the moment!
  • Karen Allen: I also feel naked when I don’t wear my GPS, but my best time was when I ran with a pace group and didn’t look at my watch. So, will I run with GPS? Yup. I will try not to look at it, but I like looking at the splits and seeing if I ran long. (editor’s note: “running long” means running further than the measured distance. usually this happens from weaving in & out of other runners, or taking turns too wide. there are LOTS of turns at VCM)

Kennedy: In Vermont, we lawyers like to say that the bar is different here – kinder, gentler if you will.  I’ve run marathons in 8 states. To me, VCM is different from other marathons: it’s way better, for many different reasons.  Most notable to me – the crowd support. Thoughts?

  • Karen Allen: VCM – although there is an excitement about running a big city marathon with 50k other runners, hometown is great. No need for arranging transportation to the start and waiting there for hours. Living 1.5 miles from the start is ideal. Running in familiar neighborhoods and seeing friends and family throughout is amazing. Oh hey- what about the lake views? Nuff said.
  • Judge Morris:  VCM is definitely kinder, gentler, than anywhere. Lots of friends and familiar faces help. But I have to say, Boston cannot be beat for the experience and the crowds.
  • Josh Lobe: Never practiced anywhere else but have read enough Grisham to get a sense of what lawyering is like in some other jurisdictions. I have run in some big law cities though.  Fully agree with your premise.  People are pretty damned nice around here whether its contested hearing or a water stop.
  • Danielle Fogarty: I haven’t run VCM… I ran the Shires in Bennington County 3 times and Boston twice.  I know I love the training camaraderie in Vermont, and the integration of running with all else in the day of life … without being intense or all important or all about ‘running.’  There’s a lot more going on.
  • Jordana Levine: I love VCM – the energy, support along the course, the course itself – it’s definitely one of my favorites; I always see people I don’t expect to see.
  • Rob McDougall: I agree.  The community and spectators really make the race fun with how they embrace and support it – especially in some of those neighborhoods along the 2nd half.
  • Heather Brochu: I absolutely love VCM definitely one of my favorites, the other favorite is of course Boston.   I am bummed not to be running VCM this year.
  • Judge Kalfus:  I agree whole-heartedly.  I’ve run marathons in six different states and in Canada.  I keep coming back to VCM not just because of the convenience, but also because of the great spectators, great scenery and the wonderful community support.

Onto the quiz!

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Even question 5!
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to
  • 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

With respect to legal ethics, which involves a different set of rules than the others?

  • A.  Net dividends
  • B.  Screening
  • C.  Overdraft Notification
  • D.  Three-Way Reconciliation

Question 2

Which doesn’t belong with the others?

  • A. a system showing all receipts & disbursements from the account
  • B. records showing all receipts & disbursements for each client
  • C. records documenting timely notice to clients of all receipts & disbursements
  • D. an approved credit card processing system

Question 3

Attorney represents Tatum in the civil matter Tatum v. James.   Lawyer represents James and has retained Expert Witness.

Whether Attorney can contact Expert Witness without Lawyer’s permission is likely governed by:

  • A.  Rule 4.2 (the no-contact rule)
  • B.  Rule 1.6 (information relating to the representation)
  • C.  The Rules of Civil Procedure
  • D.  The Rules of Evidence

Question 4

Pops & Olive divorced many years ago.  Pops is over a year in arrears on court-ordered spousal maintenance payments.

Olive asks Lawyer to represent her in a post-judgment motion to enforce the order.   She cannot afford Lawyer’s fee and asks Lawyer to take the case on a contingent fee basis.  Lawyer agrees.  You may assume that Lawyer does not have any conflicts that prohibit Lawyer from representing Olive.

Which is most accurate?

  • A.   If the contingent fee agreement is reasonable & reduced to writing, it does not violate the rules.
  • B.   Lawyer has violated the rules.  Contingent fees are banned in domestic cases.
  • C.   There will not be a violation unless or until Lawyer attempts to collect a contingent fee from Olive.
  • D.   There is no violation because it was Olive, the client, who proposed the contingent fee.

Question 5

Talk about unethical!!

In 1980, the first woman to cross the finish line at the Boston Marathon did so in what would have been the fastest time in Boston history, and third-fastest marathon in recorded history.  Alas, she was disqualified after it was determined that she’d not run the full course.  By some reports, she jumped into the race about half a mile before the finish.

Name her.



Five for Friday #117

Welcome to #117!

So, 117 was supposed to be last week.  Instead, there was no quiz because I finally took my own advice and took a few days off.  I headed to Jacksonville, where I had it going up down just south of the Florida-Georgia Line.  This week, I’m back.  Holding it down here in BFE.

Ironic that my break coincided with 117.  First, Rule 1.17 governs the sale of a law practice.  I don’t own a law practice, but my time in Florida left me dreaming about cashing things in and heading south.

More importantly, I was in Florida to visit my cousin Michelle.  Michelle grew up in Milton. Her mom and my mom are sisters.  Michelle is married to Paul Tesori.  Paul is a caddy on the PGA Tour.  They live in Ponte Vedra with their unbelievably fun & fantastic son, Isaiah.  My man Zaiah is 4.


Isaiah was born with an extra chromosome.  So, to paraphrase a bumper sticker on Michelle & Paul’s car, I’m proud to say that “my cousin’s kid has more chromosomes than your cousin’s kid!”

When Isaiah was born, Michelle & Paul had been running the Tesori Family Foundation for years.  Isaiah’s extra special extra chromosome led them to expand TFF’s work to include programming for children with special needs. One of those programs is the All-Star Kids Clinic.

Last week’s PGA Tournament was The Players Championship.  The tournament, one of the crown jewels in the sport, takes place at TPC-Sawgrass, a course just a few miles from Michelle & Paul’s house.  Every year, through their foundation, Michelle & Paul host an All-Star Kids Clinic in connection with The Players.  This year, they invited me to help out at the clinic.  I jumped at the opportunity.  You can read about this year’s clinic here.

I could go on & on about Michelle and Paul.  I’ve blogged on the importance of winning your 3 feet of influence.  That’s what Michelle & Paul do.  Every.  Single. Day.  Through their faith, their love, and their relentlessly positive approach to life, they are making a difference – one person, one day at a time.  I cannot overstate how much I valued the all-too-brief amount of time I got to spend with them, Isaiah, and the wonderful group of friends they introduced me to.  They inspired me, recharged me, and reminded me how important it is to make time for what matters.

Oh, and Paul’s week on the course? I forgot to mention: he caddies for Webb Simpson.  Webb won the tournament.  Paul more than satisfies the golf equivalent of Rule 1.1’s duty of competence!!! If you’re interested, you can read about how much the win meant to Paul and Michelle here.

What’s this got to do with 117?  Not much. It’s more “17.”  You see, TPC-Sawgrass is home to one of the most famous holes in golf: the iconic 17th and its island green.  Here’s a photo from the course’s website.  The tee is top-middle.

Here’s a picture I took from the tee.  Imagine that with all the marbles on the line.


ps: those of you who follow me on social media know I’m a big fan of #raisedVT (KP rocks!)  Michelle might be doing great things in Florida now, but she’s #raisedVT.  Interestingly, I learned this week that Keely Levins works for Golf Digest. Keely is also #raisedVT.  She grew up in Rutland where her dad, Jim Levins, practices law.

Onto the quiz!


  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Even question 5!
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to
  • 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

What type of conflict is less likely to be imputed to other lawyers in the same firm as the conflicted lawyer?

  • A.  a conflict between a former client & current client
  • B.  a conflict between current clients
  • C.  a conflict arising from a personal interest of the disqualified lawyer
  • D.  Trick question.  In VT, all conflicts are imputed to others in the same firm.

Question 2

How long are Vermont lawyers required to keep trust account records?

  • A.   6 years from the termination of a representation.
  • B.   7 years from the termination of a representation.
  • C.   a reasonable period of time following the termination of a representation.
  • D.  the rules are silent,

Question 3

Lawyer called me with an inquiry. I listened, then said:  “generally, your duty is to raise all non-frivolous defenses in a motion to quash.  If the court enforces the subpoena, the rule permits you to comply.”

It’s most likely that Lawyer and I discussed:

  • A.  Rule 1.6 (confidential information relating to the representation of a client)
  • B.  Rule 1.9 (former client conflicts)
  • C.  Rule 4.4 (respect for the rights of a third person)
  • D.  Rule 7.1 (communications concerning a lawyer’s services)

Question 4

Tech competence.  My position is that, for many lawyers, Rule 1.1’s duty of competence includes a duty to understand when and how to advise/request that clients/opposing parties preserve ______.

  • A.   ESI
  • B.   CBD
  • C.   DUI
  • D.  ACH

Question 5

Elihu Smails was a lawyer who became a judge.  After the way Judge Smails treated Danny Noonan, no way anybody would ever want to carry the Judge’s clubs for 18 holes!

Name the movie in which Judge Smails didn’t exactly cloak himself in behavior that tends to cast the legal profession in a positive light.




Avoid the Oopsies: Reply to Some, not All

Last September, I posted on the perils of autocomplete.   The post was prompted by the story of a lawyer who accidentally disclosed confidential client information to a reporter for the Wall Street Journal. How?  By failing to realize that the reporter’s email address had been added to a distribution list.  The ABA Journal has the story here.

Has that happened to you?

Today, I came across a post on Robert Ambrogi’s LawSites blog.  I love the title:

Created By A Lawyer, ReplyToSome Helps Prevent Email Oopsies

Give it read.  It discusses “ReplyToSome,” an add-in to Microsoft Outlook that was created by a lawyer to help lawyers avoid email mistakes.

Image result for oops


Social Media Posts Trip-Up Lawyer

I went to GW Law. It’s in D.C. When I was there, Washington didn’t have a major league baseball team.  But, Baltimore did.

Early in my 2L year, the Red Sox played a day-night double-header against the Orioles. My buddy Tom and I made the trek to the old Memorial Stadium.  (aside: it’s depressing to realize that my law school days pre-date Camden Yards. It didn’t open until the fall of my 3L year.)

I remember two things about the game.  The first is that Roger Clemens pitched & dominated.  Don’t take my word for it: per the magic of the interwebs, the box score is here.

See the source image

The second thing I remember is that I skipped class to go.  I have no recollection of doing so, but it wouldn’t shock me if, during the game, I made a stupid, off-hand comment to Tom along the lines of “if a foul ball lands near us, I hope the professor isn’t watching on tv!”

These days, Tom and I are both quite active on Instagram.  Had it been around then, we’d undoubtedly have posted pictures of ourselves reclining with beers in a near empty upper deck as The Rocket mowed down the O’s.  And, quite possibly, my professor would’ve seen.

Which brings me to today’s story.  It comes courtesy of the ABA Journal and Lawyer Ethics Alert Blog.

Last month, a federal district judge issued this order sanctioning a lawyer.  The lawyer had filed a request to extend a deadline, citing a family emergency that required the lawyer to be in Mexico for over two weeks.  In fact, the lawyer was not in Mexico as claimed. Rather, the lawyer was in both New York City and Miami, and was on vacation for at least some of the time.

How’d the lawyer get caught?

See the source image

That’s right, opposing counsel saw pictures the lawyer posted on Instagram.



At CLEs, I’ve often said that the duties of competence & diligence include (1) reviewing an opposing party’s publicly available social media; and (2) advising a client that the other side is looking at the client’s.  Now I suppose I can add:

(3) someone is checking yours.


p.s. – today’s story is so 2009.





ESI: there’s risk in failing to preserve.

Say it with me: competence includes tech competence.

In most of my posts on the topic, the unstated message is that a lawyer who fails to satisfy the duty of competence violates Rule 1.1 and risks having a sanction imposed against his or her license.

Here’s my post on Competence, ESI, and E-Discovery.  In it, I wrote that the duty of (tech) competence includes:

  • knowing that “it” exists,
  • knowing that clients, their adversaries, and witnesses have “it;” and,
  • knowing how to protect, preserve, produce, request, review, and use “it.”

What is “it?” It is Electronically Stored Information (“ESI”).

In addition, I cited to an advisory opinion from the State Bar of California that includes the following quote:

  • “Attorney competence related to litigation generally requires, among other things, and at a minimum, a basic understanding of, and facility with, issues relating to e-discovery, including the discovery of electronically stored information (“ESI”).”

Today, I blog to call your attention to other risks. Namely, the risk of having a court impose severe sanctions against you and your clients if you fail to preserve ESI.

Melinda Levitt and Peter Vogel are partners at Foley & Lardner.  Yesterday, The National Law Review posted their article Bad Preservation in eDiscovery is Still Very Costly! 

Give it read.

The article begins by reporting that there is both “good news” and “bad news” when it comes to discovery sanctions for failures to preserve ESI.

The good news is that relative recent amendments to the civil rules reserve the most severe sanctions for situations in which the failure to preserve resulted from an “intent to deprive.” As the authors note, “the ‘bad news’ is that bad preservation behavior continues.”

Next, the authors point out that:

  • “[i]t has been twelve years now since the federal rules were first amended and explicitly came to recognize ‘ESI’ – that is emails, electronic documents, excel spreadsheets, PowerPoints, and a myriad of other electronic materials – as documents” within the meaning of the discovery rules.”

They also point out that, over those 12 years, all of us have become increasingly reliant on technology, without necessarily developing any clue how it works.


  • ” . . . there are some basic things that people at least in the business community should have come to understand over the last 12 years. Among them are if litigation is occurring or is about to occur, a company is obligated to take reasonable steps to ensure that its relevant (or potentially relevant) ESI is preserved. That means getting out the word quickly – whether by way of a formal written litigation hold or otherwise – that employees and electronic systems managers/overseers need to take steps to stop either conscious or system-wide deletions or purges of potentially relevant ESI. By now, business owners, their IT employees, and their in-house and outside counsel really should have no doubt about this obligation and how to accomplish it. Granted, meeting this obligation can get dicey and difficult when it comes to things such as employee text messages, social media postings, telephone messages, and structured data. However, in terms of emails and basic electronic documents – the mainstays of business life – there should be no question or hesitation about what needs to be done.  

Then, the meat of their message:

  • “And yet . . . and yet, very recent decisions demonstrate that executives, managers and yes, even lawyers, either remain willfully ignorant of how these business systems work or are determined to pass the buck, having assumed that some mysterious “someone else” in the company was handling things. Well, while courts no longer can impose the most draconian of sanctions, no one should kid him or herself – judges continue to have very potent sanctions options available and are very willing to use them when confronted with preservation misconduct borne of ignorance, indifference or good old-fashioned boneheadness. The following are a few telling examples – and were issued in just the last few weeks – and each leaves us with the question – what were they thinking?”

From there, the article goes on to recount several cases in which significant discovery sanctions were imposed against lawyers and their clients as a result of failures to preserve ESI.  Some might strike a nerve.  If so, there’s still time to sign up for tomorrow’s first-ever VBA Tech Show.

Tech competence.  The lack thereof impacts much more than a lawyer’s license.

E Discovery






SCOTUS: defense counsel cannot concede guilt over a client’s objection.

In January, I blogged on a case that was pending before the United States Supreme Court. The issue: in a criminal case, can a lawyer concede a client’s guilt over the client’s objection?

As reported by the ABA Journal, the Supreme Court issued its opinion yesterday.  The answer: no.

The case is State of Louisiana v. Robert Lee McCoy.  From the SCOTUS opinion, a quick recap:

“Petitioner Robert McCoy was charged with murdering his estranged
wife’s mother, stepfather, and son. McCoy pleaded not guilty to first degree
murder, insisting that he was out of State at the time of the
killings and that corrupt police killed the victims when a drug deal
went wrong. Although he vociferously insisted on his innocence and
adamantly objected to any admission of guilt, the trial court permitted
his counsel, Larry English, to tell the jury, during the trial’s guilt
phase, McCoy “committed [the] three murders.” English’s strategy
was to concede that McCoy committed the murders, but argue that
McCoy’s mental state prevented him from forming the specific intent
necessary for a first-degree murder conviction. Over McCoy’s repeated
objection, English told the jury McCoy was the killer and that
English “took [the] burden off of [the prosecutor]” on that issue.
McCoy testified in his own defense, maintaining his innocence and
pressing an alibi difficult to fathom. The jury found him guilty of all
three first-degree murder counts. At the penalty phase, English
again conceded McCoy’s guilt, but urged mercy in view of McCoy’s
mental and emotional issues. The jury returned three death verdicts.
Represented by new counsel, McCoy unsuccessfully sought a new
trial. The Louisiana Supreme Court affirmed the trial court’s
ruling that English had authority to concede guilt, despite McCoy’s

A 6-3 majority held that a criminal defendant has a constitutional “right to insist that counsel refrain from admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty.”

The Court’s opinion is rooted in the Sixth Amendment’s guarantee of effective assistance of counsel.  The Court held that the guarantee includes the right “to decide that the objective of the defense is to assert innocence.”  Indeed, “some decisions . . .  are reserved for the client—notably, whether to plead guilty, waive the right to a jury trial, testify in one’s own behalf, and forgo an appeal.”

Nevertheless, defense counsel does not remain at the whim of the client.  As the Court noted, “[t]rial management is the lawyer’s province: Counsel provides his or her assistance by making decisions such as ‘what arguments to pursue, what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence.’ ”

In the end, the Court concluded that the decision to maintain innocence during the guilt phase of a trial is not a choice about tactics, but a choice that goes to the very objective of the representation.  As such, the Sixth Amendment reserves it for the client.

So do the Rules of Professional Conduct.  In fact, the opinion interests me because it’s related to legal ethics.

In Vermont, Rule 1.2(a) of the Rules of Professional Conduct requires lawyers to “abide by a client’s decisions concerning the objectives of [the] representation.”  The rule goes on to state that “[i]n a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, and whether the client will testify.” Louisiana’s rule tracks Vermont’s; each tracks the Sixth Amendment.

Mr. McCoy’s objective was to be found not guilty. His lawyer conceded that he did not abide by his client’s objective. Here’s an excerpt from an affidavit that lawyer filed in one of the post-trial proceedings:

  • “I became convinced that the evidence against Robert McCoy was overwhelming ․ I know that Robert was completely opposed to me telling the jury that he was guilty of killing the three victims and telling the jury that he was crazy but I believed that this was the only way to save his life. I needed to maintain my credibility with the jury in the penalty phase and could not do that if I argued in the guilt phase that he was not in Louisiana at the time of the killings, as he insisted. I consulted with other counsel and was aware of the Haynes case and so I believed that I was entitled to concede Robert’s guilt of second degree murder even though he had expressly told me not to do so. I felt that as long as I was his attorney of record it was my ethical duty to do what I thought was best to save his life even though what he wanted me to do was to get him acquitted in the guilt phase. I believed the evidence to be overwhelming and that it was my job to act in what I believed to be my client’s best interests .”

Alberto Bernabe is a professor at John Marshall Law School.  Professor Bernabe teaches torts & professional responsibility. He’s also a regular on this blog’s #fiveforfriday Honor Roll.  Here’s a portion of a blog that Professor Bernabe posted last fall after SCOTUS granted cert in the McCoy case:

  • “In this case, the defendant, Robert Leroy McCoy, refused his lawyer’s suggestion to accept a plea deal, and objected when the lawyer informed him he planned to concede guilt.  He also protested at trial, after the lawyer conceded guilt during the opening statement.  According to an article in the ABA Journal, ‘the lawyer maintained the concession was necessary because he had an ethical duty to save McCoy’s life.’  There is only one problem.  There is no such ethical duty.The duty of the lawyer is to represent the client and this includes following the client’s instructions as to the goals of the representation.”

At least insofar as it relates to the Sixth Amendment, the Supreme Court agrees.

(Professor Bernabe posted several links to the case’s history: they’re here.)

The decision to maintain innocence is the defendant’s.  It is a decision that is fundamentally different from the decisions about which witnesses to depose, which motions to file, and which arguments to make.

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Monday Morning Answers #116

Welcome to Monday!  Friday’s questions and my Derby picks are here.

My pick to win, Mendelssohn, finished last.  That’s not ideal.  In real life, I boxed Audible and Good Magic. So, the final few furlongs were exciting. Alas, horse racing isn’t horse shoes or hand grenades.

In better bettor news, Liz Kruska correctly predicted Justify would win!

The answers follow today’s Honor Roll.

Honor Roll

(hyperlinks to bios where available)


Question 1

Lawyer called me with an inquiry. I listened, then replied: “the rule applies if you’re holding them in connection with a representation.”

Holding what?

  • A.   Client Confidences
  • B.   Funds or other property.  See Rules 1.15 and 1.15A.
  • C.   Evidence of a client’s crime
  • D.  Potentially exculpatory evidence

Question 2

Which involves a different set of the Rules of Professional Conduct than the others?

  • A.  ACH transfers
  • B.  Lateral transfers
  • C.  Transfers from private practice to work as a government attorney
  • D. Transfers from being a law clerk to working in a private practice

An ACH Transfer is a financial transaction. The other types of transfers involve the conflict issues that arise when lawyers change jobs.

Question 3

“A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.”

  • A.  Is a rule.  It’s Rule 3.2.
  • B.  Is not a rule, but, per case law, is an aspect of the duty of competence
  • C.  Is not a rule, but, per case law, is an aspect of the duty of diligence
  • D.  B & C

Question 4

Attorney called me with an inquiry.  I listened, then replied, “before you disclose, the first step is to refer it up the ladder to a higher authority and, if warranted by the circumstances, to the highest authority that can act.”

Given my response, it’s most likely that Attorney represents:

  • A.  an organization.  Rule 1.13
  • B. a lawyer who discovered that a client used th lawyer’s service to commit a fraud on the court
  • C.  a firm’s partner whose associate has a health condition that adversely impacts the associate’s fitness to practice law
  • D.  the defendant in a criminal case

Question 5

John Tweedy was a lawyer. He graduated from Columbia Law School.  While there, he met a woman named Penny Chenery.  Penny was a student at Columbia Business School. The two eventually married.

To call Penny “competent” would be a gross understatement.  Penny is one of the most succesful horse breeders in U.S. history.  She bred and raced the horse that many consider the greatest of all-time.  The horse holds the record for the fastest time in The Kentucky Derby.

The horse was born in 1970.  Penny’s father had “won” the horse by losing a coin toss.  That is, in 1969, Penny’s father and another breeder agreed to flip a coin to determine who would receive the first choice of the next two foals to be sired by Bold Ruler, the 1957 Horse of the Year.

Penny’s father lost the coin toss.  The winner chose a horse named The Bride, who you likely have never heard of.  Penny’s father was left with a horse who I’m quite certain you’ve heard of.

Name the horse that Penny’s father won by losing a coin toss.


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