Five for Friday…..

……will be delayed, if not off this week.

I’m in Chicago for an ABA conference.  I’ll paraphrase some great tips so far:

From Jim Calloway of the Oklahoma State Bar: Jim pointed out that the Wall Street Journal’s famed “B” section (“business”) is now Business and Technology. He mentioned that, in business, there’s now a notion that “every business is a tech business,” with some businesses better than other at incorporation tech into what they do.  So, isn’t true then that every law practice is a tech practice, with some slower to adapt than others? Jim stressed that automated document assembly is key to improve practice management. If you aren’t using it, the ABA wrote in favor of doing so…..in 2009.

Fred Ury, past president of he Connecticut Bar and a member of the ABA Committee on the Future of the Legal Profession: as a profession, we’re great at forming this task force or that committee.  We’re not so great at follow-up.  How many task force/committee reports are sitting on a shelf somewhere?  Projects need to be ongoing until complete!  Especially the states’ various future commissions.  Don’t let reports sit!  Tech companies are going to solve the problems that “we” are slowly trying to address. If we fail to remain active, if we FAIL TO LEAD, we won’t be part of the solution.

Finally, from several of the panelists, are you worried about the latest tech innovations as legal market disruptors?  You should be.  But you know what?  People are less likely to turn to a robot lawyer when they know the human lawyer — as a PERSON, not as a lawyer.  Get out there and get active in your communities!  Make people think “yeah, but I see Mike around town…he’s a good guy so I’ll stick with him.”  Lawyers who remain an active part of their communities are less likely to be spurned for the latest and greatest market disruptor.

I’ve tried to tweet from the seminars. I’ll continue to do so today.  Follow me @vtbarcounsel

And how about my mom?!?!  She’s in first place after Day 1 of my NCAA pool.

 

The Future is Here – Update for the Wary

Thanks to an attentive reader, I have a follow-up to this morning’s post.  I’ll paste in the post here:

**********

For over a year, Kevin Ryan and I have been talking about, some might say ‘warning of’, looming changes to the legal profession.  Kevin was the first person I heard speak of the “uberization of the law.”  Since then, we’ve mentioned at it at every seminar we’ve presented together.  We usually don’t get much of a response beyond “that’s cool, can we move on to the practical stuff now.”

  • Well, many people consider apps to be practical.

And, from Robert Ambrogi’s LawSites blog, here’s the latest on apps and the “uberization of the law.”

***********

Now, for the update.

I understand the app isn’t yet available. However, when it is, a few thoughts.

According to the article, the developer of the app, Jason Velez,

  • “foresees the app being used to answer quick and simple legal questions at no charge. The incentive for attorneys to participate is to establish relationships with users that could then lead to fee-generating services and referrals.”

That’s great and, generally, there’s nothing wrong with answering quick and simple legal questions at no cost.  But, a few things to keep in mind:

  1. There’s no minimum length of time required to form an attorney-client relationship. Nor is there any requirement that a fee be charged or collected in order for an a/c relationship to form.  An attorney who provides a quick and simple answer to a legal question does so, arguably, in the context of an attorney-client relationship.  If so, once the connection is terminated, the app user is a “former client” to whom Rule 1.9 applies.
  2. Even now, lawyers have the ability to answer short & simple questions at no cost.  Perhaps by e-mail, or maybe on one of those machines that my aunt calls a “telephone,” or, heaven forbid, if a client walks in the front door.   And what do most lawyers do before responding to unsolicited e-mails or doling out advice to cold callers and walk-ins?  They check for conflicts.  That quick chat at no cost might be a great lead generator, but what if the person with whom you connected is adverse to a current or former client?

I’ve mentioned this in other contexts:  Rule 6.5 relaxes the conflicts rules when lawyers provide short-term legal services, with no expectation of continuing representation, in nonprofit & court-annexed limited legal services programs.  One might argue that providing free or low-cost advice to generate good will & leads is not the same as volunteering at a Saturday morning legal clinic.

In short, embrace technology, especially to the extent it can streamline your practice and make you a better and more efficient lawyer.  But remember, the rules continue to apply.

 

 

 

 

The Future is Here

For over a year, Kevin Ryan and I have been talking about, some might say ‘warning of’, looming changes to the legal profession.  Kevin was the first person I heard speak of the “uberization of the law.”  Since then, we’ve mentioned at it at every seminar we’ve presented together.  We usually don’t get much of a response beyond “that’s cool, can we move on to the practical stuff now.”

Well, many people consider apps to be practical.

And, from Robert Ambrogi’s LawSites blog, here’s the latest on apps and the “uberization of the law.”

Amendments to the Trust Accounting Rules

Earlier today, the Supreme Court approved a proposal from the Professional Responsibility Board to amend Rules 1.5, 1.15, 1.15A, and 8.3 of the Vermont Rules of Professional Conduct.  The amendments take effect on May 9, 2016.

The amendments are HERE.

Highlights:

  • the rules impose an affirmative requirement of monthly reconciliation of pooled-interest bearing trust accounts (aka – IOLTA accounts)
  • the rules authorize lawyers to enter into agreements for nonrefundable fee agreements provided that the lawyer complies with specific requirements on (a) notice to clients; and (b) reducing such fee agreements to writing.

Monday Morning Answers

Last Friday’s questions are HERE.

First, the Honor Roll, followed by the answers.

HONOR ROLL

Perfect Scores

  • Matthew Anderson, Pratt Vreeland
  • Robert Grundstein
  • Scott Jaunich, Downs Rachlin Martin
  • Matthew Little, Esq.
  • Hal Miller, First American

High Honors

  • Elizabeth Kruska, Marsicovetere Law
  • Jordana Levine, Marsicovetere Law
  • Brendan Scherer, Vermont Law School 2L

ANSWERS

Question 1

It’s not unusual for me to receive field inquiries from lawyers who are involved in a matter in which the opposing party is a represented organization.

True or False?

JUST KIDDING!! that’s not the whole question. Read on.

These lawyers often ask for guidance on which employees of the represented organization are fair game, and which require opposing counsel’s consent to contact. Under the Vermont’s Rules of Professional Conduct, the easiest & quickest answer for me is when lawyers ask if they need consent to contact:

  • A.  a fact witness who works for the organization
  • B.  an employee who is not part of upper management
  • C.  a former employee of the organization; See, Rule 4.2, Comment 7 (“Consent of the organization’s lawyer is not required for communication with a former constituent.”)
  • D.  an employee with supervisory responsibilities

Question 2

There are many  programs in Vermont that allow lawyers to volunteer their time to provide short-term legal services to those who cannot otherwise afford counsel.  Which section of the Rules of Professional Conduct is relaxed in situations in which a lawyer is providing short-term legal services to someone who does not expect continuing representation in the matter?  The section on:

  • A.  Conflicts of Interests; See, Rule 6.5
  • B.  Malpractice Insurance
  • C.  Client Communication
  • D.  Communicating with a Represented Party

Question 3

In the legal ethics world, there is much talk about “alternative business structures.”  Right now, they are not allowed under Vermont’s Rules of Professional Conduct. If the rule were amended to allow some form of alternative business structures, it most likely would allow:

  • A.  Nonlawyers to provide limited legal services
  • B.  Nonlawyers to share financial, management, & ownership interests in law practices.  See, ABA Journal, “Does the UK know something we don’t about Alternative Business Structures” (January 2015)
  • C.  Different offices of large, regional law firms to represent both parties in certain commercial transactions.
  • D.  “Compacts” between in states in which a lawyer licensed in one can practice law in the others

Question 4

Lawyer called me with an inquiry. She told me that she’s concerned that her client might offer false testimony at trial. We talked, then I asked “do you know that his testimony will be false, or is it testimony that you believe, however reasonably, is false?”

Given my question, what type of case is it most likely that Lawyer and I discussed?

Criminal, See, Rule 3.3(a)(3).

Question 5

As an ode to March Madness and a (back-handed) shout-out to the Burlington lawyer who is the most recent reader to sign-up for this blog:

One of college basketball’s traditional powers, and a team that won the national championship in relatively recent memory, will spend the next few days on “the bubble“sweating-out whether it will be selected for this year’s tournament.  One reason for the uncertainty: the team went 9 games without its head coach this season, winning 4 and losing 5.  The coach wasn’t sick or injured: he’d been suspended by the NCAA for misconduct that was the coaching world’s equivalent of repeated violations of the Rules of Professional Conduct.

For one point each, identify the coach and the team that might miss the tournament as a result of faring poorly during the coach’s “disciplinary” suspension.

JIM BOEHEIM, Syracuse.  Turns out, Syracuse made the tournament.  

Five for Friday#16

No posts this week.  Sorry about that.  Work beckoned and time flew.

But that’s not why you’re here. You’re here because you need something to do before the selection committee releases the  NCAA tournament field Sunday night.  And, as I’ve always never said, a legal ethics quiz is the best way to sharpen your mind for the task of completing a bracket!

Basketball digression (and a hard core one at that): increase your odds of winning your pool by perusing Ken Pomeroy’s rankings. These are advanced stats that only a basketball nerd could love.  Hint: Elite 8 and Final Four teams tend to rank among the best in Adjusted Defense.  Caveat: last year, teams ranked high in Adjusted Offense dominated the tournament.

Before we tip off, a quick rules review:

  1.  There really aren’t any: it’s open book, open internet – except for question 5.
  2. email answers to michael.kennedy@vermont.gov
  3. Send this link to friends & colleagues and urge them to play.

Previous weeks are HERE.

 Question 1

It’s not unusual for me to receive field inquiries from lawyers who are involved in a matter in which the opposing party is a represented organization.

True or False?

JUST KIDDING!! that’s not the whole question. Read on.

These lawyers often ask for guidance on which employees of the represented organization are fair game, and which require opposing counsel’s consent to contact. Under the Vermont’s Rules of Professional Conduct, the easiest & quickest answer for me is when lawyers ask if they need consent to contact:

  • A.  a fact witness who works for the organization
  • B.  an employee who is not part of upper management
  • C.  a former employee of the organization
  • D.  an employee with supervisory responsibilities

Question 2

There are many  programs in Vermont that allow lawyers to volunteer their time to provide short-term legal services to those who cannot otherwise afford counsel.  Which section of the Rules of Professional Conduct is relaxed in situations in which a lawyer is providing short-term legal services to someone who does not expect continuing representation in the matter?  The section on:

  • A.  Conflicts of Interests
  • B.  Malpractice Insurance
  • C.  Client Communication
  • D.  Communicating with a Represented Party

Question 3

In the legal ethics world, there is much talk about “alternative business structures.”  Right now, they are not allowed under Vermont’s Rules of Professional Conduct. If the rule were amended to allow some form of alternative business structures, it most likely would allow:

  • A.  Nonlawyers to provide limited legal services
  • B.  Nonlawyers to share financial, management, & ownership interests in law practices
  • C.  Different offices of large, regional law firms to represent both parties in certain commercial transactions.
  • D.  “Compacts” between in states in which a lawyer licensed in one can practice law in the others

Question 4

Lawyer called me with an inquiry. She told me that she’s concerned that her client might offer false testimony at trial. We talked, then I asked “do you know that his testimony will be false, or is it testimony that you believe, however reasonably, is false?”

Given my question, what type of case is it most likely that Lawyer and I discussed?

Question 5

As an ode to March Madness and a (back-handed) shout-out to the Burlington lawyer who is the most recent reader to sign-up for this blog:

One of college basketball’s traditional powers, and a team that won the national championship in relatively recent memory, will spend the next few days on “the bubble“sweating-out whether it will be selected for this year’s tournament.  One reason for the uncertainty: the team went 9 games without its head coach this season, winning 4 and losing 5.  The coach wasn’t sick or injured: he’d been suspended by the NCAA for misconduct that was the coaching world’s equivalent of repeated violations of the Rules of Professional Conduct.

For one point each, identify the coach and the team that might miss the tournament as a result of faring poorly during the coach’s “disciplinary” suspension.

 

 

 

 

 

 

 

Monday Morning Answers

Must be I was in a bad mood Friday morning.  Not many entries this week, and many of those who entered mentioned that the questions were difficult.  Given the time of year, we’ll say that it was the mid-term.  Things will might ease up a bit in the next few weeks.

Per usual, the Honor Roll, followed by the answers.

HONOR ROLL

Perfect Score

Honors

ANSWERS

Question 1

Yesterday, a lawyer and I discussed whether funds that are in the lawyer’s possession are being held “in connection with a representation.”  It is most likely, then, that the lawyer called me to ask whether:

  • A.   the trust accounting rules apply; Per Rule 1.15, funds held “in connection with a representation” must be held in accordance with Rulea 1.15A and 1.15B.
  • B.   she may disburse the funds in reliance upon a deposit that has not cleared & does not yet constitute “collected funds”
  • C.   the funds are subject to trustee process
  • D.   “referral fees” are allowed in Vermont

Question 2

By rule, a lawyer currently serving as a public employee may not negotiate for private employment with any person who is involved as a party or an attorney for a party in a matter in which the lawyer is participating personally & substantially.

There is an exception.  It is for a lawyer who is serving as a law clerk to a judge or adjudicative officer.  Rule 1.12(b).

Fill in the blank. Hint: it’s not just one word.

Question 3

Lawyer is representing Business Owner in a civil suit filed by Smith.

You’re bar counsel for a day.  Lawyer calls and asks “is it okay if I tell Employee of Business Owner to refrain from voluntarily giving information to Smith’s attorney?”

What say ye?

  • A.   that’s not a violation of Vermont’s rules;  The key here is that it’s an employee.  See, Rule 3.4(f), Comment [4].
  • B.   it’s okay since it’s civil case. It wouldn’t be okay if you were representing Business Owner in a criminal case.
  • C.   it’d be okay if you were defending Business Owner against criminal charges, but it’s not okay in a civil case.
  • D.  the only advice you can give to Employee is the advice to seek counsel

Question 4

This happened on Wednesday.

Attorney called me with an inquiry. I listened. Then, I responded by saying:

  • “The rule draws a distinction between things like phone calls & real-time communications, and things like letters & emails.  The former are subject to more restrictions than the latter.”

Given that my responses to inquiries are based on the Vermont Rules of Professional Conduct, what was the most likely topic of this inquiry?

Direct Contact with Prospective Clients.  Rule 7.3

Question 5

Irving Kanarek represented a notorious client in a criminal trial that began in 1971.  The client was charged with conspiracy to commit multiple murders.  During the trial, Kanarek:

  • objected 9 times during the prosecutor’s opening statement;
  • was found in contempt 4 times;
  • spent 2 nights in jail for contempt;
  • gave a 7 day closing argument; and
  • had the judge tell him he was “totally without scruples, ethics, and professional responsibility.”

Who was Kanarek’s notorious client?

CHARLES MANSON

Manson

As my brother correctly noted, in a different case, Kanarek objected when a witness was asked his name.  The reason?  Hearsay, in that the witness only knew his name because his mother had told him.

Five For Friday #15

If you haven’t already, please read yesterday’s post on mental health & substance abuse.  It’s HERE.  The post references a study released last month by the ABA and the Hazeldon Betty Ford Clinic.  The study is a bit “clinical.”  For an easier read, check out this article from a recent edition of the New Hampshire Bar News.  The headline says it all.

Special “thank you” to the reader from southeastern Vermont who forwarded the NH article to me yesterday.

As for today, happy birthday Erin Gilmore! Erin was one of the first Five for Friday superstars.  I didn’t meet Erin until after each of us had been admitted to the bar, but it turns out our families go way back. Erin, as they say in the old country, la breith sona duit!

Reminder on the Five For Friday rules:

  • email your answers to michael.kennedy@vermont.gov
  • you can do whatever research you want for questions 1-4.  Question 5 is closed book, closed note, no search engine, no phone-a-friend.
  • please forward this post to colleagues & co-workers and ask them to consider entering
  • for those of you still too shy to enter, please take a look at this post.

Question 1

Yesterday, a lawyer and I discussed whether funds that are in the lawyer’s possession are being held “in connection with a representation.”  It is most likely, then, that the lawyer called me to ask whether:

  • A.   the trust accounting rules apply
  • B.   she may disburse the funds in reliance upon a deposit that has not cleared & does not yet constitute “collected funds”
  • C.   the funds are subject to trustee process
  • D.   “referral fees” are allowed in Vermont

Question 2

By rule, a lawyer currently serving as a public employee may not negotiate for private employment with any person who is involved as a party or an attorney for a party in a matter in which the lawyer is participating personally & substantially.

There is an exception.  It is for a lawyer who is serving as a ___________.

Fill in the blank. Hint: it’s not just one word.

Question 3

Lawyer is representing Business Owner in a civil suit filed by Smith.

You’re bar counsel for a day.  Lawyer calls and asks “is it okay if I tell Employee of Business Owner to refrain from voluntarily giving information to Smith’s attorney?”

What say ye?

  • A.   that’s not a violation of Vermont’s rules
  • B.   it’s okay since it’s civil case. It wouldn’t be okay if you were representing Business Owner in a criminal case.
  • C.   it’d be okay if you were defending Business Owner against criminal charges, but it’s not okay in a civil case.
  • D.  the only advice you can give to Employee is the advice to seek counsel

Question 4

This happened on Wednesday.

Attorney called me with an inquiry. I listened. Then, I responded by saying:

  • “The rule draws a distinction between things like phone calls & real-time communications, and things like letters & emails.  The former are subject to more restrictions than the latter.”

Given that my responses to inquiries are based on the Vermont Rules of Professional Conduct, what was the most likely topic of this inquiry?

Question 5

 

Irving Kanarek represented a notorious client in a criminal trial that began in 1971.  The client was charged with conspiracy to commit multiple murders.  During the trial, Kanarek:

  • objected 9 times during the prosecutor’s opening statement;
  • was found in contempt 4 times;
  • spent 2 nights in jail for contempt;
  • gave a 7 day closing argument; and
  • had the judge tell him he was “totally without scruples, ethics, and professional responsibility.”

Who was Kanarek’s notorious client?

 

 

 

 

 

 

Lawyers Helping Lawyers

Updated on March 3 to refer accurately to the Vermont Lawyers Assistance Program.

Last month, the American Bar Association and the Hazeldon Betty Ford Clinic released a  a study on attorney substance abuse & mental health. According to a press release issued by the ABA, the study found “substantial and widespread levels of problem drinking and other behavioral health problems in the U.S. legal profession.”

The press release is HERE.

The full study is HERE.

Here’s the opening paragraph of the study’s “discussion” section:

  • “Our research reveals a concerning amount of behavioral health problems among attorneys in the United States. Our most significant findings are the rates of hazardous, harmful, and potentially alcohol dependent drinking and high rates of depression and anxiety symptoms. We found positive AUDIT screens for 20.6% of our sample; in comparison, 11.8% of a broad, highly educated workforce screened positive on the same measure (Matano et al., 2003). Among physicians and surgeons, Oreskovich et al. (2012) found that 15% screened positive on the AUDIT-C subscale focused on the quantity and frequency of use, whereas 36.4% of our sample screened positive on the same subscale. While rates of problematic drinking in our sample are generally consistent with those reported by Benjamin et al. (1990) in their study of attorneys (18%), we found considerably higher rates of mental health distress.”

In my experience, lawyers are in position to recognize signs of substance abuse and mental health issues exhibited by another lawyer, whether a co-worker, colleague, or opposing counsel.  Some lawyers wonder whether there is a duty to report substance abuse and mental health issues.  Maybe.  Rule 8.3, the reporting rule, isHERE.

But how about this? How about coming it at from the perspective of helping another human being instead of analyzing whether another’s struggles trigger your duty to report? If a colleague, co-worker, or opposing counsel needs help, why not help them?

Yes, I get it, we are reluctant to get involved.  Some of these might sound familiar:

  • It’s not my business.
  • I don’t know for sure, could’ve been she was having a bad day.
  • It helps my client that he isn’t doing his job.
  • The firm doesn’t need the bad publicity.

Well, consider this:

Extrapolating from the ABA/Hazeldon study, approximately

  • 500 active Vermont attorneys are problem drinkers
  • 500 active Vermont attorneys exhibit signs of problem anxiety
  • 720 active Vermont attorneys struggle with some level of depression.

Here’s a real number, not an extrapolation: over the past 14 months, three Vermont attorneys took their own lives.

Help is available.

Contact the Vermont Lawyers Assistance Program. It’s confidential and the volunteers are exempt from the reporting requirement in Rule 8.3.  Josh Simonds is the Director and is an excellent resource. A referral to Josh’s program will not result in a referral to the disciplinary prosecutors.

Or, call me.  It’s confidential. I can refer an attorney to the LAP program or to one of the PRB’s assistance panels. The panels, in turn, have the authority to refer a lawyer to LAP or to any type of counseling.  I CANNOT refer the attorney to the disciplinary office.

Or, visit the website for the ABA Commission on Lawyer Assistance Programs.

Call someone. We need to help ourselves, help others, and help ourselves to help others.

Finally, please consider signing up for this seminar scheduled for March 31 at theVBA’s Mid-Year Meeting.  Josh Simonds, Cara Cookson, and I will try to provide you with tips to recognize signs that another lawyer is dealing with substance abuse or mental health problems, and we will provide guidance on how to respond.