So A Lawyer & Judge Are Facebook Friends . . .

So a lawyer & judge are Facebook friends.

So what?

The ABA Journal has the story of an appellate court’s decision that a Facebook friendship with a lawyer, without more, is not a sufficient basis to disqualify a judge.   The order is here.

This makes sense to me.  As with almost everything tech-related, I try to use analogies to non-tech stuff.  For example, if you learned that a lawyer who regularly appeared before a judge belonged to the same health club, or went to the same church, or was in the same law school class as the judge my guess is that you wouldn’t reflexively yell “conflict! disqualify the judge!”

No, you might ask something as simple as, “do they actually know each other? If so, how well? Do they do stuff together?”

In my view, Facebook is no different.  Florida’s Third District Court of Appeal agrees. (there’s no “s” – maybe the court only hears one case at at time).  The opinion presents a fantastic analysis of what it means, if anything, to be Facebook friends with someone.

Here are my favorite paragraphs from the ABA Journal’s post.  They include a quote from the opinion.

“Though a Facebook friendship may have once given the impression of a close friendship, that’s no longer the case, the Third District Court of Appeal said in explaining its disagreement with the other appeals court. Facebook uses data mining and network algorithms to suggest potential friends, and many Facebook users have thousands of friends, the appeals court said.

“ ‘To be sure,’ the opinion said, ‘some of a member’s Facebook ‘friends’ are undoubtedly friends in the classic sense of person for whom the member feels particular affection and loyalty. The point is, however, many are not. A random name drawn from a list of Facebook ‘friends’ probably belongs to casual friend, an acquaintance, an old classmate, a person with whom the member shares a common hobby, a ‘friend of a friend’ or even a local celebrity like a coach.’ ”

Ab, yes. A local celebrity.  Like a coach.  Music to my ears.

How to Help in Harvey’s Aftermath

For those of you interested in how you might be able to help in Harvey’s aftermath, I’m sharing some information that I received from the National Conference of Bar Presidents and the National Organization of Bar Counsel.

There are opportunities to volunteer to provide legal services to those impacted by the disaster.  There’s an obvious need for lawyers admitted in Texas or Louisiana, but it appears that, in Texas at least, out-of-state lawyers can contact the Texas State Bar and express an interest in volunteering.

If you know of anyone impacted by the disaster who needs help, National Disaster Legal Aid has created the Hurricane Harvey resource page.

State and local bar associations have published information on the resources that are available to those impacted.  For more, visit any of the following:

• Houston Bar Association
• Louisiana State Bar Association
• State Bar of Texas – Disaster Relief Resources
• State Bar of Texas – Disaster Legal Hotline
• Texas Law Help

The Texas Bar Foundation created a Hurricane Harvey Disaster Relief Fund.

Finally, I’ll share a reminder from Christine Hickey, President of the National Conference of Bar Presidents:

• “While it is natural and appropriate that we focus on the legal needs of individuals and organizations in Harvey’s path, we cannot overlook the critical needs of shelter, food and clothes for individuals whose lives have been turned upside down. If you have not done so already, please consider making a donation to the Salvation Army, the American Red Cross, or other reputable relief organization.”

Thank you.

 

 

The Next Eclipse: Plan Ahead

Thank you to a loyal reader from the NEK for tipping me off to the court order that inspires this column.

It’s been a week since the eclipse.  I doubt that it kept many Vermont lawyers from the office – at least not any more than “August” seems to.  In any event, the courts remained open for business and will be open for business when the next eclipse occurs on Monday, April 8, 2024.

Of course, next time, Northern Vermont will be in the totality zone.  So, if you don’t want a pesky court appearance to keep you from a viewing party, come up with a plan well in advance.  Otherwise, if this decision is any indication, a motion to continue will not succeed.

Happy Monday.

Monday Morning Answers #83

Friday’s questions are HERE.

Spoiler alert: the answers follow today’s Honor Roll in 5, 4, 3, 2, 1……if you don’t know, now you know.

Honor Roll

• Ed Adrian, Monaghan, Safar, Ducham
• Andrew Costello, Leeds Brown
• Robert Grundstein
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Patrick Kennedy, First Brother, Dealer.Com
• Deborah Kirchwey, Law Offices of Deborah Kirchwey
• Elizabeth Kruska, Esq.
• Jeffrey Messina, Bergeron, Paradis, Fitzpatrick
• Hal Miller, First American
• Daniel Richardson, Tarrant Gillies & Richardson
• Kane Smart, Agency of Natural Resources, Office of General Counsel
• Emily Tredeau, Office of the Defender General, Prisoners’ Rights

Answers

Question 1

There’s only ONE thing that the rules require Vermont lawyers to keep for a period of years.  What is it?

• A.   Copies of advertisements for 2 years after they first run.
• B.   Client’s file for 7 years following the termination of the representation of Client.
• C.   Trust account records of funds held for Client for 6 years following the termination of the representation of Client.  Rule 1.15(a)(1).
• D.   Client’s confidences & secrets for 7 years following the termination of the representation of client.

Notes:  A is incorrect because the rule was repealed years ago.  B is NOT CORRECT.  The file must be delivered upon the termination of the representation.  See, Rule 1.16(d).  It’s a good idea to make a copy for yourself, but the rules do not require you to do so.  Your carrier probably does though.  Finally, D is not correct.  We stopped using the word “secrets” in 1999.  Also, information relating to the representation of a former client is governed by Rule 1.9(c) and is not subject to a 7-lear limit.

Question 2

Attorney called.  Among other questions on a single topic, she asked me whether the rules define “person of limited means.”  What general topic did Attorney call to discuss?

The pro bono rules.  Per rule 6.1, a majority of the 50 hours should go to providing representation to persons of limited means, or, to organizations that primarily address the needs of persons of limited means.  For more, including the definition of “persons of limited means” see this blog post.

Question 3

Speaking of encrypting email, if there is a duty to encrypt, it flows from two duties set out in the rules. One is the duty to maintain the confidentiality of information related to the representation.  What’s the other?  The duty to:

• A.  Safeguard client property & funds
• B.  Provide a client with diligent representation
• C.  Provide a client with competent representation.  See, Rule 1.1.  Also, the link to my blog on encrypting email was included with the questions.  It outlines how the duty of competence dovetails with the duty to maintain confidences to include a duty to act competently to safeguard information relating to the representation of a client.
• D.  Communicate with a client

 

Question 4

Lawyer represents Client.   Shortly before trial, opposing party discloses Witness. Lawyer determines that he has a conflict that prohibits him from representing Client in a matter in which Witness will testify for Opposing Party.

Lawyer moves to withdraw and discloses the conflict in both his motion and the argument on the motion.  The court denies the motion and Lawyer represents Client at trial.  Witness testifies, Lawyer cross-examines Witness.

True or False: Lawyer violated the Vermont Rules of Professional Conduct by representing Client at trial and cross-examining Witness.

False.  Rule 1.16(c).  (“When ordered to do so by a tribunal, a lawyer shall continue representation nothwithstanding good cause for terminating the representation.)

Question 5

I’m not making this up.

In Vermont, V.R.Pr.C. 3.1 is the equivalent of civil rule 11.  It prohibits lawyers from asserting a position unless there is a non-frivolous basis for doing so.

I’m not making this part up either.

In 2014, a New York lawyer was sued for allegedly helping a client to fraudulently transfer assets.  Let’s call the lawyer “Defendant.”

In 2015,  Defendant filed a motion in which he requested the he and plaintiff either have a duel or “trial by combat.”  When questioned by the media, he responded that “”I have a good-faith belief that this is still part of our state constitution. I want the law to be clear on this issue, and I have every right to ask for this.”

What’s Defendant’s favorite television show?

Game of Thrones.

The lawyer’s request was denied.  In an article on the denial, Staten Island Live has a fascinating quote from Attorney Richard Luthmann:

• “I believe that the court’s ruling is based upon my adversaries’ unequivocal statement that they would not fight me,” said Luthmann, who’s based in Castleton Corners.  “Under my reading of the law, the other side has forfeited because they have not met the call of battle. They have declared themselves as cowards in the face of my honorable challenge, and I should go to inquest on my claims.”

 

 

 

Five for Friday: #83

83.

Believe it or not, 83 makes me think about an issue lawyers love to raise at my CLE’s: do the rules impose a duty to encrypt e-mail?  Fortunately, like apps in the old days, there’s a blog post for that.

Why does 83 remind me of the ethics of email encryption? Let me tell you!  As I do, remember that I’m not a mathemtician and I didn’t stay at a Holiday Inn Express last night.  But I’ll do my best.

83 is a Sophie Germain Prime .  The reason is that (2 x 83) + 1 is also a prime.  (For you mathematically challenged, that means that 167 is a prime number.)

Now, it’s beyond me why Sophie Germain spent her time searching for solutions to (2X + 1) = Y where both X & Y are prime numbers. But thank goodness she did!  Bear with me.

Back to our formula: 2X +1 = Y.  If both X and Y are primes, X is the Sophie Germain prime, and Y is a safe prime.  It turns out that Sophie Germain Primes and Safe Primes are very useful as secret keys in the RSA Cryptosystem.  Why?  The RSA Cryptosystem encodes stuff, and the SG & Safe Primes help it to block certain algorithms from cracking the code.  (I guess that Lorde & her friends weren’t faced with SG/Safe Primes.)

In other words, the RSA Cryptosystem is used to secure data transmission and Sophie Germain primes are critical in helping it to do so.  If you haven’t yet caught on, encrypting email is a way to secure data while it’s in transit.

I have no idea whether, back in the day, Sophie helped lawyers & maesters encrypt messages that were sent by raven.  Regardless, her work lives on today.

One last thing before the quiz: enjoy your weekend!  There aren’t many left before the leaves turn.  Along with my brother, 10 friends of ours, and about 70,000 friends we haven’t met yet, I’ll be at Gillette for the Kenny Chesney concert. No Shoes Nation knows how to do summer.

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

There’s only ONE thing that the rules require Vermont lawyers to keep for a period of years.  What is it?

• A.   Copies of advertisements for 2 years after they first run.
• B.   Client’s file for 7 years following the termination of the representation of Client.
• C.   Trust account records of funds held for Client for 6 years following the termination of the representation of Client.
• D.   Client’s confidences & secrets for 7 years following the termination of the representation of client.

Question 2

Attorney called.  Among other questions on a single topic, she asked me whether the rules define “person of limited means.”  What general topic did Attorney call to discuss?

Question 3

Speaking of encrypting email, if there is a duty to encrypt, it flows from two duties set out in the rules. One is the duty to maintain the confidentiality of information related to the representation.  What’s the other?  The duty to:

• A.  Safeguard client property & funds
• B.  Provide a client with diligent representation
• C.  Provide a client with competent representation
• D.  Communicate with a client

Question 4

Lawyer represents Client.   Shortly before trial, opposing party discloses Witness. Lawyer determines that he has a conflict that prohibits him from representing Client in a matter in which Witness will testify for Opposing Party.

Lawyer moves to withdraw and discloses the conflict in both his motion and the argument on the motion.  The court denies the motion and Lawyer represents Client at trial.  Witness testifies, Lawyer cross-examines Witness.

True or False: Lawyer violated the Vermont Rules of Professional Conduct by representing Client at trial and cross-examining Witness.

Question 5

I’m not making this up.

In Vermont, V.R.Pr.C. 3.1 is the equivalent of civil rule 11.  It prohibits lawyers from asserting a position unless there is a non-frivolous basis for doing so.

I’m not making this part up either.

In 2014, a New York lawyer was sued for allegedly helping a client to fraudulently transfer assets.  Let’s call the lawyer “Defendant.”

In 2015,  Defendant filed a motion in which he requested the he and plaintiff either have a duel or “trial by combat.”  When questioned by the media, he responded that “”I have a good-faith belief that this is still part of our state constitution. I want the law to be clear on this issue, and I have every right to ask for this.”

What’s Defendant’s favorite television show?

 

 

 

Don’t Wait For A Conviction & Disbarment To Help A Lawyer In Need

I’ve blogged often on issues related to the Hazeldon Report, a report the ABA referred to as revealing “substantial and widespread levels of problem drinking and other behavior health problems in the legal profession.” My various posts on the topic are here.

In this post, I wrote:

• “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, is  HERE. 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?”

There’s a decision making the rounds in bar counsel circles this week. It’s an extraordinarily sad story.  It’s also a story that shows the importance of helping sooner rather than later.  You can read the decision here.

Most relevant to the point I want to raise today is that the decision makes it clear that the lawyer exhibited signs & symptoms of addiction/mental health issues before the misconduct occurred.

Per the opinion:

• January 2010: Lawyer receives $117,225.17 for Client and deposits it into trust.  Lawyer does not disburse the funds to Client or inform Client that Lawyer received the funds.
• April 2010: Client learns that Lawyer has the funds and starts contacting Lawyer.  Lawyer does not respond.
• For two years, Lawyer treats the funds as her own, eventually spending the entire amount.
• May 2012: Client files a complaint with Washington State Bar Association.
• July 2012:  Client hires a new attorney who sues Lawyer and obtains a default judgment.
• July 2014: Lawyer pleads guilty to first degree theft and is sentenced to serve 6 months.  The sentence is later reduced to 9 months of electronic home monitoring.
• 2016: hearing officer recommends 3-year suspension of Lawyer’s law license.  Disciplinary Board rejects recommendation and recommends disbarment.
• August 2017: Washington Supreme Court disbars Lawyer.

The hearing officer’s recommendation for a 3-year suspension was based on a conclusion that Lawyer’s substance abuse, physical health problems, and mental health problems mitigated against disbarment.  Both the Disciplinary Board and the Supreme Court agreed that Lawyer suffered from significant health problems, but concluded that the problems did not mitigate against disbarment.

Reminder: Lawyer received Client’s funds in January 2010.

Evidence in the disciplinary case suggested that by “November 2009, [Lawyer] was dysfunctional and that someone on the medications prescribed to her ‘might not think clearly, rationally, or be able to function very well.'”  Opinion, at 17.

Indeed, the record established that Lawyer was in three car accidents between 2004 and 2006 that left her with chronic pain.  Her pain was treated with a variety of opioids.  Opinion, at 8.

By 2009, Lawyer’s “personality changed signficantly.”  Lawyer was “lethargic, slept a lot, and was inactive even when awake.  She would pass out midsentence and was unable to complete simple tasks.”  Opinion, at 8.  By year’s end, Lawyer “was almost never in the office.”  Opinion, at 2.

In 2009, Lawyer encountered other issues as well.  Her grandparents died.  She had marital difficulties.  She suffered from numerous physical health problems.  Opinion, at 8-9.

The opinion indicates that sometime in 2009, the Lawyer’s doctor urged her “to enter a detoxification program for increasing opioid use.”  Opinion, at 9.  The opinion does not indicate whether, from 2006 through 2012, anyone intervened or sought to convince Lawyer to get help.  I understand that the absence of evidence is not evidence of absence.

That being said, the misconduct began after Lawyer had become “dysfunctional.”  It’s clear that her dysfunction resulted from opioid use, and other physical and mental health problems.  Yet, she continued to practice, take clients, and handle client funds.

Again, I don’t know whether someone tried to get her help before she misappropriated client funds.  I imagine, though, that if she was as dysfunctional as the opinion describes, plenty of people would have noticed: family, friends, co-workers, opposing counsel, court staff, judges.

I’m not blaming them.  Trust me, I know the feeling of not wanting to get involved.  As I’ve blogged,

• ” 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.”

We need to get past that mindset.  We must help sooner rather than later.  Look at the damage that can ensure if we don’t.  In the Washington case, the lawyer’s career is ruined, she put an associate’s license at risk, and, but for Washington’s client protection fund, the Client would have lost more than $100,000.

If we wait for a lawyer’s practice (and life) to implode before we help, we are not doing anything to protect clients, the profession, or lawyers.

Helping someone in need is the right thing to do.  Don’t wait until it’s too late.

 

 

Legal Ethics, Cloud Storage, and . . . Game of Thrones?

So, you want to store client data in the cloud? Excellent! Odds are it’ll make you more efficient.

What are your duties under the rules of professional conduct?  Good question.

In my view, a lawyer has a duty to take reasonable precautions to protect client information from unauthorized access or disclosure.   The duty applies no matter the “place” that the information is stored.  That is, the cloud is a “place to store client information” in the exact same sense as a storage facility out on the old county road.

For more, here’s my post The Cloud: What Are Reasonable Precautions?

Now, about that headline.

Jeff Bennion has a great post over at Above The Law: How Are Lawyers Supposed  To Have More Security Than HBO?  It’s well-worth the few minutes you’ll need to read it.  A summary of his tips:

• Know your duties
• Don’t make unnecessary copies of things
• Know that some client data is more sensitive than other data
• Secure all devices & places where client data is stored.

Only 109 hours, 44 minutes until The Dragon & The Wolf.  Until then, just as I’m sure you’ll take reasonable precautions to avoid spoilers, do the same to avoid the inadvertent or unauthorized disclosure of client information.

 

 

The Trade

It’s funny.  I don’t get a lot of responses to my posts on legal ethics.

But, since most readers know I’m an unabashed Celtics fan, and because there are Cavs fans who loyally follow this blog, I’ve received a bunch of requests to comment on the trade.  I aim to please, so here goes nothing….

. . . . my initial reaction is that I’m good with it.  Here’s why:

• Kyrie is the best player in the trade.

Case closed.

I love IT. I really do.  And I love the energy he’s infected into the TD Garden the past few seasons.

But he turns 29 next season and will want a max deal.  Guys his size rarely perform to max deals at that age.

Then there’s his hip. It wouldn’t shock me if the trade is voided because he doesn’t pass the physical.

And let’s be honest – as good as he was for Boston, he was subbed out on defense in close games late.  He cannot guard and has already proven that he can’t guard Kyrie in the Eastern Conference finals.  Next year, they’ll just be wearing different jerseys.

Oh, and Kryie won the 2016 finals for Cleveland.  Sorry LeBron apologists fans.  He did.

Then there’s the fact that the trade opens playing time for Jaylen and Tatum. With Hayward on board, and those two in the (literal) wings, Jae Crowder wasn’t going to be happy.

And I LOVE Jae Crowder. A true Celtic who battled every night.  He treated Wednesday road games in January the same way that he treated prime-time playoff home games. He’ll give Cleveland the grit they never had and sorely could’ve used against GSW.

In the end, we could’ve had 1 year of IT, Avery Bradley, Jae Crowder, Markelle Fultz, and next year’s Brooklyn pick.

Brooklyn is going to be a lot better than you think.

Instead, we have Gordon Heyward, 2 years of Kyrie, Jayson Tatum, playing time for Jaylen Brown, and a roster spot to sign, hopefully, Nerlens Noel. And the Lakers’ pick in 2018 or the Kings pick in 2019.  The future isn’t exactly dim.

So, that’s my quick take.

Relating it back to professional responsibility, I’m confident that Danny Ainge provided the Celtics with competent and diligence service in making this trade.

Or maybe I’m wrong.  If I am, I’ll you what I’m right about – the Celts host the Cavs on February 11.  They’re retiring The Truth’s jersey that day.   Ticket prices were already absurd.  Now they’re a whole lot more.

 

 

 

 

 

Monday Morning Answers – #82

I loved the responses that I received to Friday’s intro.  Seems like we not only have a few lawyers who used to deliver the Free Press, but a few Steeler fans as well.  Great stuff readers!

Friday’s questions are here.  The answers follow today’s honor roll.

HONOR ROLL

• Karen Allen
• Penny Benelli, Dakin & Benelli
• Alberto Bernabe, Professor, John Marshall School of Law
• Andrew Costello, Leeds Brown
• Robert Grundstein
• Tom Little, Vermont Student Assistance Corporation
• Marsicovetere & Levine
  • Jordana Levine, Audrey Smith, Rachel Thompson
• Lon McClintock
• Jeffrey Messina, Bergeron Paradis Fitzpatrick
• Kane Smart, Agency of Natural Resources
• Peter Zuk

Question 1

Attorney represents Steeler.   Lawyer represents Cowboy.   Attorney receives from Lawyer a document that Attorney knows was inadvertently sent.

With respect to Vermont’s Rules of Professional Conduct (not the rules of civil procedure), Attorney’s obligation is to:

• A.  Notify Lawyer.   At CLE’s, people seem not to believe me on this one.  The key to the question is what is Attorney’s obligation with respect to the Vermont Rules of Professional Conduct.  Rule 4.4(b) answers this question unambiguously, as does Comment [2]: “Whether the lawyer is required to take additional steps, such as returning the original document, is a matter beyond the scope of these rules, as is the question of whether the privileged status of the document has been waived.”
• B.  Notify Lawyer and return the document
• C.  Notify Steeler
• D.  Notify Steeler and consult with Steeler as to the pros & cons of notifying Lawyer

 

Question 2

We often use the term “IOLTA” to described what the rules call a “pooled interest-bearing trust account.”  That’s right – “IOLTA” does not appear in the rules.  Nevertheless, what does “IOLTA” stand for?

Interest on Lawyer Trust Accounts.  Rule 1.15B governs pooled interest-bearing trust accounts.

Question 3

Former Client isn’t happy with Attorney.   FC insists to Attorney that Attorney committed malpractice. FC is not represented in connection with the potential malpractice claim.

Attorney makes an offer to settle the potential malpractice claim.  FC accepts.

In Vermont,

• A.   If FC files a disciplinary complaint, Attorney’s offer is an admission that Attorney violated Rule 1.1 by failing to provide competent representation to FC in the original matter;
• B.   Attorney has a duty to self-report a potential violation of Rule 1.1;
• C.   A & B
• D.  The settlement violates the rules unless Attorney advised FC in writing of the desirability of seeking independent legal counsel in connection with the potential malpractice claim and gave FC a reasonable opportunity to do so before agreeing to the settlement.  See, Rule 1.8(h)(2).

Question 4

Fill in the blank.

Lawyer called me with an inquiry.  She told me that her firm is considering whether to hire two attorneys: one who currently works as a government attorney, and one who is an associate at another firm.  Lawyer had several questions related to potential conflicts of interests that her firm would have to deal with if it hired the 2 attorneys.

We talked for a while.  At one point, I said “well, not to get too technical on you, but ____________ means “the isolation of a lawyer from any participation in a matter through timely imposition of procedures within your firm that are reasonably adequate to protect information that the isolated lawyer is obligated to protect.”

What word fills in the blank?  Screening.  Rule 1.0(k).

Question 5

A former super hero took a job at a law firm.  Alas, while not exactly the most super of heros, he’s even less competent as a lawyer.  But he got some great cases, including:

• defending Scooby Doo & Shaggy on drug charges;
• representing The Jetsons when they travelled back in time to sue us all for ruining the planet;
• defending Ricochet Rabbit against charges of wilfull & wanton destruction of property;
• representing Dr. Quest in the doctor’s legal battle with Race Bannon over custody of Johnny Quest;
• representing the plastic surgeon sued for botching Droopy’s Botox injections; and,
• representing Fred Flinstone and Peebles in the federal investigation into their potential mob ties.

Who is our erstwhile, yet often incompetent, super hero turned lawyer?

Harvey Birdman

Lawyer Well-Being: A Call to Action

“The benefits of increased lawyer well-being are compelling and the costs of lawyer impairment are too great to ignore.  There has never been a better or more important time for all sectors of the profession to get serious about the substance use and mental health of ourselves and those around us.”

• National Task Force on Lawyer Well-Being, The Path to Lawyer Well-Being, Practical Recommendations for Positive Change, p. 10.

*************************************************************************************

I’ve blogged often on the alarming number of lawyers who struggle with substance abuse and mental health disorders.   My most recent post on the topic was one month ago today:  Lawyers Helping Lawyers: Keep it on the Front Burner.

Monday, the National Task Force On Lawyer Well-Being released its report The Path to Lawyer Well-Being: Practical Recommendations for Positive Change.  The report puts the issue of lawyer well-being on the front burner in each of our kitchens.

And it turns up the heat.

Here’s an excerpt from the Task Force’s introductory note:

• “To be a good lawyer, one has to be a healthy lawyer.  Sadly, our profession is falling short when it comes to well-being.  The two studies referenced above reveal that too many lawyers and law students experience chronic stress and high rates of depression and substance abuse.  These findings are incompatible with a sustainable legal profession, and they raise troubling implications for many lawyers’ basic competence.”

Let me re-emphasize:  “These findings are incompatible with a sustainable legal profession, and they raise troubling implications for many lawyers’ basic competence.“

The note goes on:

• “The legal profession is already struggling.  Our profession confronts a dwindling market share as the public turns to more accessible, affordable alternative legal service providers.  We are at a crossroads.  To maintain public confidence in the profession, to meet the need for innovation in how we deliver legal services, to increase access to justice, and to reduce the level of toxicity that has allowed mental health and substance use disorders to fester among our colleagues, we have to act now.  Change will require a wide-eyed and candid assessment of our members’ state of being, accompanied by a courageous commitment to re-envisioning what it means to live the life of a lawyer.”

Per the report, there are 3 reasons to improve attorney well-being:

1. Good for business
2. Good for clients
3. The right thing to do

#3 should sound familiar to readers of this blog.

The report is 73 pages long and makes recommendations for judges, legal employers, law schools, bar associations, professional liability carriers, and lawyers assistance programs. Most relevant to this blog, the report makes recommendations for regulators. They begin on page 25 and, per the table of contents, can be summarized as follows:

• Take Actions to Meaningfully Communicate That Lawyer Well-Being is a Priority
  • Adopt Regulatory Objectives That Prioritize Well-Being
  • Modify the Rules of Professional Responsibility to Endorse Well-Being as Part of a Lawyer’s Basic Duty of Competence
  • Expand Continuing Education Requirements to Include Well-Being Topics
  • Require Law Schools to Create Well-Being Educations for Students as an Accreditation Requirement
• Adjust the Admissions Process to Support Law Student Well-Being
  • Reevaluate Bar Application Inquiries About Mental Health History
  • Adopt a Rule for Conditional Admission to Practice Law
  • Publish Data Reflecting Low Rate of Denied Admissions Due to Mental Health Disorders and Substance Use
• Adjust Lawyer Regulations to Support Well-Being
  • Implement Proactive Management-Based Programs That Include Lawyer Well-Being Components
  • Adopt a Centralized Grievance Intake System to Promptly Identify Well-Being Concerns

I will do my part to review each recommendation for regulators with the appropriate body, whether the Professional Responsiblity Board, the Board of Bar Examiners, the Character & Fitness Committee, or the Continuing Legal Eduction Board.  But, as I mentioned, the report makes recommendations for many other groups.  Nearly each and every one of us fits into it at least one of those groups.

Turn up the heat on your front burner. The time to act is now.

If you or someone you know needs help, please contact the Vermont Lawyers Assistance Program.