Month: October 2017

Monday Morning Answers: Timberlake & Pro Bono Bring Sexy Back!

Michael

Welcome to Monday!

You might be saying to your self – “self, why is he using an exclamation point?? It’s dark, windy, rainy, and the final week of Daylight Savings Time. WHAT IS HIS PROBLEM??”

Here’s why I used the exclamation point:

I found a backup singer! See below.

Actually, that wasn’t the only (or real) reason for the exclamation point.  This was:

The largest Honor Roll ever!  It’s official: Justin Timberlake and pro bono are bringing sexy back!

Sexy Back

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

Honor Roll

ANSWERS

Question 1

How much pro bono work do the rules encourage Vermont attorneys to provide per year?

  • A.    A reasonable amount
  • B.    50 hours; Rule 6.1
  • C.    60 hours
  • D.    A meaningful amount

Question 2

True or false: the rules exempt government & non-profit attorneys from the pro bono expectation.

False.  Rule 6.1 applies to every lawyer.  Comment[5], however, recognizes that government lawyers may not be able to satisfy the requirements of Rule 6.1(a) and, therefore, should be allowed to satisfy the pro bono requirement via provision of services set out in Rule 6.1(b).  Specifically, the Comment states

  • “Constitutional, statutory, or regulatory restrictions may prohibit or impede government or public sector lawyers and judges from performing the pro bono services outlined in paragraphs (a)(1) and (2).  According, where those restrictions apply, government and public sector lawyers and judges may fulfill their pro bono responsibility by performing services outlined in paragraph (b).”

Question 3

Client retains Lawyer in a divorce.  Client agrees to pay Lawyer an hourly fee.  The fee agreement is reduced to a writing that is signed by Client.

The matter ends with a final order.  By then, Client has paid less than 10% of the total fee and owes Lawyer for approximately 60 hours of work.  Lawyer writes off the bill.

May Lawyer claim the 60 hours as pro bono?

  • A.    Yes, because Lawyer did not get paid.
  • B.    Yes, as long as Lawyer does not continue to try to collect the bill.
  • C.    Yes, but cannot claim the hours if Client decides voluntarily to pay.
  • D.    No.

Rule 6.1(a) is clear:  a “lawyer should provide substantial majority of the 50 hours of legal services without fee or expectation of fee . . ..” Comment [4] drives home the point:  “Because services must be provided without fee or expectation of fee, the intent of the lawyer to render free legal services is essential for the work performed to fall within the meaning of paragraphs (a)(1) and (2).  Accordingly, services rendered cannot be considered pro bono if an anticipated fee is uncollected . . . .” 

Question 4

Which section of the rules is relaxed for lawyers who do pro bono work at short-term legal services programs sponsored by non-profits or government agencies?

  • A.   The trust accounting rules
  • B.   Rule 1.1 and the duty of competence
  • C.   Rule 1.6 and the duty of confidentiality
  • D.   The conflicts rules. Rule 6.5

Question 5

At various live quizzes, I’ve used questions related to the ethics of P2P filing sharing and the legal battle between Napster & Metallica.

Your task: name the movie in which Justin Timberlake played Sean Parker, the co-founder of Napster.

There’s a hint in the tags.  And, here’s a bit of the dialogue:

Sean Parker: Well, I founded an internet company that let folks download and share music for free.
Amy: Kind of like Napster?
Sean Parker: Exactly like Napster.
Amy: What do you mean?
Sean Parker: I founded Napster.

The Social Network

 Social Network

 

Five for Friday #92: I don’t wanna lose you now . . .

Michael

Welcome to #fiveforfriday #92!

So, my first question today is “what was wrong with us in ’92?”

I am referring to the halftime “entertainment” at the 1992 Super Bowl.

Super Bowl XXVI was played in Minneapolis.  Washington drubbed Buffalo in a boring game.  I don’t have a specific recollection of the halftime show, but it must have been even more boring than the game.  The theme was “winter” and the “Winter Olympics.” Here’s the line-up:

  • dancers celebrating winter;
  • Winter Olympic medal winners Dorothy Hamill & Brian Boitano skating on sheets of Teflon (the game was indoors);
  • The University of Minnesota Marching Band; and, for the closing act,
  • Gloria Estefan.

Umm…..

Archer

THAT is what passed for entertainment in 92??? It’s miracle that there was a Super Bowl XVII!

As an aside, loyal readers know that I preach competence.  Well, even taking the relative competence of the halftime acts out of the discussion, the program’s internal structure demonstrates an utter LACK of competence. What kind of presentation whose theme is “winter” features a closing act whose band is the Miami Sound Machine?!?!?

Which brings us to this week.

This season, the game returns to Minneapolis, with Super Bowl LII scheduled to be played outdoors in the gleaming new U.S. Bank Stadium.  Likely the Pittsburgh Steelers against a sacrificial lamb from the NFC.  And guess what was announced earlier this week?

Justin Timberlake will headline the halftime show.   Talk about competence!!!!

A few weeks ago, I used this space to confess I’m a Swiftie.  Here’s another right hand on a cold one confession: I’m a big fan of JT.

I was in my car when I heard the Super Bowl announcement.  Immediately, I scrolled to Mirrors.  If my nascent karaoke career ever gets off the ground, Mirrors might become my go-to song.  It’s the perfect karaoke set-up:

  • great beat for the audience to snap their fingers to;
  • everyone will know & sing along to the chorus, thus drowning out my voice; and,
  • that part at the end where the chorus is sung without any instruments.  I love when that happens in a song. I haven’t finalized the choreography yet, but that’s probably when I’ll point the mic at the crowd and have you sing along.

Critical: I’ll need backup singers.  You know, for these parts:

  • (me) It’s like I’m a mirror 
  • (backups)   oh oh   
  • (me) My mirror staring back at me
  • (backups) oh oh                                                                                                                             

Consider this an open casting call.

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

It’s Celebrate Pro Bono week. So, this week’s questions focus on the pro bono rules.

Question 1

How much pro bono work do the rules encourage Vermont attorneys to provide per year?

  • A.    A reasonable amount
  • B.    50 hours
  • C.    60 hours
  • D.    A meaningful amount

Question 2

True or false: the rules exempt government & non-profit attorneys from the pro bono expectation.

Question 3

Client retains Lawyer in a divorce.  Client agrees to pay Lawyer an hourly fee.  The fee agreement is reduced to a writing that is signed by Client.

The matter ends with a final order.  By then, Client has paid less than 10% of the total fee and owes Lawyer for approximately 60 hours of work.  Lawyer writes off the bill.

May Lawyer claim the 60 hours as pro bono?

  • A.    Yes, because Lawyer did not get paid.
  • B.    Yes, as long as Lawyer does not continue to try to collect the bill.
  • C.    Yes, but cannot claim the hours if Client decides voluntarily to pay.
  • D.    No.

Question 4

Which section of the rules is relaxed for lawyers who do pro bono work at short-term legal services programs sponsored by non-profits or government agencies?

  • A.   The trust accounting rules
  • B.   Rule 1.1 and the duty of competence
  • C.   Rule 1.6 and the duty of confidentiality
  • D.   The conflicts rules

Question 5

At various live quizzes, I’ve used questions related to the ethics of P2P filing sharing and the legal battle between Napster & Metallica.

Your task: name the movie in which Justin Timberlake played Sean Parker, the co-founder of Napster.

There’s a hint in the tags.  And, here’s a bit of the dialogue:

Sean Parker: Well, I founded an internet company that let folks download and share music for free.
Amy: Kind of like Napster?
Sean Parker: Exactly like Napster.
Amy: What do you mean?
Sean Parker: I founded Napster.

 

 

 

 

 

 

Celebrate Pro Bono

Michael

This week marks the National Celebration of Pro Bono.  This year, the ABA encourages lawyers to provide pro bono services to events and organizations that assist homeless youth. To me, the focus calls to mind Jay Diaz’s fantastic work as the Vermont Bar Foundation’s Poverty Law Fellow.

Anyhow, I thought I’d use the National Celebration of Pro Bono to review the section of the Vermont Rules of Professional Conduct that applies to pro bono services.

pro bono

Per Rule 6.1,

  • “Every lawyer has a professional responsibility to provide legal services to those unable to pay.  A lawyer should render at least 50 hours of pro bono publico legal services per year .  In fulfilling this responsibility, a lawyer should
    • (a) provide a substantial majority of the 50 hours without fee or expectation of fee to:
      • (1) persons of limited means; or
      • (2) charitable, religious, civic, community, governmental, and educational organizations in matters which are designed primarily to address the needs of people with limited means.” (emphasis added).

The remainder of the 50 hours can be satisfied in ways outlined in Rule 6.1(b).

  • Who qualifies as a “person of limited means?”
    • See, Rule 6.1, Comment [3] (“Persons eligible for legal services under paragraphs (a)(1) and (2) are those who qualify for participation in programs funded by the Legal Services Corporation and those whose incomes and financial resources are slightly above the guidelines used by such organizations but nevertheless cannot afford counsel.”
    • Key points made at the CLE this morning included the point that there are plenty of people who make more than the guidelines but who cannot afford legal services.  Those people need help as well.
  • My client didn’t pay, that’s pro bono.
    • Categorically false.  Rule 6.1(a) is clear:  a “lawyer should provide substantial majority of the 50 hours of legal services without fee or expectation of fee . . ..”
    • Comment [4] drives home the point:  “Because services must be provided without fee or expectation of fee, the intent of the lawyer to render free legal services is essential for the work performed to fall within the meaning of paragraphs (a)(1) and (2).  Accordingly, services rendered cannot be considered pro bono if an anticipated fee is uncollected . . . .”
    • Note, however that the Comment goes on to indicate that “. . . the award of statutory attorney’s fees in a case originally accepted as pro bono would not disqualify such services from inclusion under this section.  Lawyers who do receive fees in such cases are encouraged to contribute an appropriate portion of such fees to organizations or projects that benefit persons of limited means.”
  • I’m a government attorney, so I don’t have to do pro bono.
    • False.  Rule 6.1 applies to every lawyer.  Comment[5], however, recognizes that government lawyers may not be able to satisfy the requirements of Rule 6.1(a) and, therefore, should be allowed to satisfy the pro bono requirement via provision of services set out in Rule 6.1(b).  Specifically, the Comment states
      • “Constitutional, statutory, or regulatory restrictions may prohibit or impede government or public sector lawyers and judges from performing the pro bono services outlined in paragraphs (a)(1) and (2).  According, where those restrictions apply, government and public sector lawyers and judges may fulfill their pro bono responsibility by performing services outlined in paragraph (b).
  • So I’m doing pro bono work, what other rules apply?
    • All of them!  You must be competent & diligent.  You can’t communicate with a represented party on the subject of the representation without counsel’s consent.  You can’t lie.  In short, pro bono is not license to act unethically.
  • What about the conflicts rules?
    • Rule 6.5 relaxes the conflicts rules IF a lawyer provides:
      • short term limited legal services
      • under the auspices of a program sponsored by a nonprofit organization or court
      • without expectation by the lawyer or the client that the lawyer will provide continuing representation in the matter.
    • If each of these is present, the conflicts rules apply only if the lawyer KNOWS of a conflict.  In other words, if the 3 conditions are met, a lawyer does not have to do a conflict check prior to commencing the representation.  See, Rule 6.5, Comment [1] (“Such programs are normally operated under circumstances in which it is not feasible for a lawyer to systematically screen for conflicts of interest as is generally required before undertaking a representation.”
    • Remember: a lawyer may provide pro bono services outside the auspices of program sponsored by a nonprofit or court.  However, if so, the lawyer must check for conflicts.

That’s all for now. I hope you celebrate pro bono week by providing some pro bono hours.  For opportunities to do so, contact Mary Ashcroft or Angele Court.

pro bono

Technology Predicts How Jurors Will Vote

Michael

I’ll get my soapbox moment out of the way early in this post: Rule 1.1’s duty of competence includes tech competence.

There.

Now, here’s another area in which technology might impact the scope of the duty.  The ABA Journal has this story about Voltaire, a tech company that developed software that “can search through billions of data points, including public records and social media posts, and—within a matter of minutes—pull up all kinds of information on prospective jurors.”  Per the article, the company’s origins are in its CEO’s realization “that law firms didn’t do a very good job using technology to assist them in their cases.”

Hmm. Sounds familiar.

Anyhow, if you’re interested, check it out.  Seems we’ve come a long way from the days of Gene Hackman’s use of technology as a jury consultant.

Voltaire interests me not only from the perspective of a lawyer’s duty of competence, but from a social media standpoint.  Two years ago, I served on jury duty.  Much to my chagrin, I wasn’t picked for a single case.  I presume because the attorneys knew all they needed to know about me.  Still, had they used Voltaire, what more would they have learned about me?

Anyway, I digress.  Back to competence.

Rule 1.1 states that “[c]ompetent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” I am NOT saying that the duty of competence requires an attorney to use Voltaire (or a service like it) when picking a jury.  At least not yet.

Someday, a client who loses at trial will ask their attorney why the attorney didn’t make use available technology.  And that “ask” might be in the form of a disciplinary complaint or malpractice claim.  Then, the question will become whether reasonably necessary thoroughness and preparation for a jury trial includes using a technology like Voltaire’s.

Voltaire

 

Monday Morning Answers

Michael

Friday’s Nirvana v. Pearl Jam column is here.  It drew some great comments from readers. I’ve pasted them in below the Honor Roll and the answers.  Special thanks to the commenter who clued me in to a fantastic (and topical) t-shirt.

Eddie Vedder T

HONOR ROLL

ANSWERS

Question 1

Jeremy approaches Lawyer for representation in a matter in which Lawyer has no real experience.  True or false:  the rule that imposes a duty of competence prohibits Lawyer from representing Jeremy.

FALSE.  V.R.Pr.C. 1.1, Comment [4] (“A lawyer may accept representation when the requisite level of competence may be achieved by reasonable preparation.”)

Question 2

Attorney represents Dissident.  The State has charged Dissident with assaulting an Elderly Woman Behind A Counter In Small Town.  Attorney and Dissident remain Oceans apart on how to handle the defense, with Dissident upset that Attorney repeatedly says “you’re lucky she’s still Alive.”  For purposes of the Rules of Professional Conduct, which is different from the others?

  • A.   The plea that Dissident will enter.
  • B.   Whether to cross-examine Elderly Woman (if she testifies)
  • C.   Whether Dissident will waive a jury trial.
  • D.   Whether Dissident will testify.

Per Rule 1.2(a), choices A, C, and D belong to Dissident. Choice B is trial strategy that, generally, belongs to Attorney.

Question 3

Daughter retains Lawyer.  Daughter agrees to pay an hourly fee for work performed.  Which is most accurate?

  • A.  The fee agreement must be reduced to writing.
  • B.  The fee agreement must be reduced to writing within a reasonable time.
  • C.  The fee agreement must be reduced to a writing that is signed by the client.
  • D.  The rules do not require the fee agreement to be reduced to writing.

Per Rule 1.5(b), the basis and rate of a fee should be communicated to the client, preferably in writing, before or a within a reasonable time of the commencement of the representation.  Key to this question was that the fee was not contingent.  Contingent fees MUST be reduced to a writing signed by the client.  See, Rule 1.5(c).  Finally, while the rules do not require the fee to be reduced to writing, I don’t know why a lawyer wouldn’t do so.

Question 4

Attorney works at Big Firm.  Partners & Associates are departing like Rats fleeing a sinking ship.  So, Attorney decides to leave life at Big Firm in the RearviewMirror and opens a solo shop. There is a rule that imposes a duty of diligence.  A comment to the rule suggests that, as a solo, Attorney might have a duty:

  • A.  To prepare a succession plan.
  • B.  To remain abreast of developments in technology.
  • C.  To utilize a cloud-based practice management system.
  • D.  To retain or associate with a non-lawyer assistant trained in bookkeeping & trust accounting.

Rule 1.3, Comment [5].  

Question 5

In 1994, Pearl Jam filed a complaint with the Department of Justice.  In a cover story, Time magazine referred to the complaint as “Rock’n Roll’s Legal Battle of the Century.” The battle eventually led to band members Stone Gossard and Jeff Ament testifying before Congress.

What was the subject of Pearl Jam’s complaint?

  • A.  An alleged monopoly resulting from Ticketmaster’s purchase of Ticketron
  • B.  An alleged monopoly resulting from Clear Channel buying up local radio stations
  • C.  Royalties & Columbia House’s 8 for the Price of 1 deal on CDs
  • D.  The method by which Billboard counted album sales for purposes of the Billboard Top 100.

Rolling Stone has the result here.

Some Reader Comments on Nirvana v. Pearl Jam

  • “Can I vote for Alice in Chains?  No?? Then PEARL JAM.  Even though every live show has Eddie’s annoyingly self-righteous and endless blather between songs.  I saw an elderly woman at Shaw’s a few weeks ago, wearing a t-shirt with his picture that said, ‘It doesn’t get eddie vedder than this!’ In the early 90s, I loved Nirvana, but I never play them anymore.  But I still listen to Soundgarden, Alice in Chains and  Pearl Jam all the time.  And I just played Mother Love Bone last week!  (I just HAD to hear Star Dog Champion…) It’s a Beatles/Stones thing. Nirvana had that pop-tinged Beatles influence that you get sick of.  Soundgarden and Pearl Jam do guitar-oriented blues rock like the Stones that never gets old!
  • “I like Pearl Jam better as well, although its a tough call. Nevermind is a fantastic album.
  • “Both Pearl Jam and Nirvana are epic bands, but at the time I was definitely all about Pearl Jam. Ten resonated so much for me as a fifteen year old boy. Only in hindsight did I come to appreciate Nirvana. I think MTV’s Unplugged really did it for me well after Cobain was dead. From there, I went back and embraced Nevermind, but I actually prefer In Utero. The fact that Eddie’s singing was a bit easier to understand than Kurt’s probably had a lot to do with my early predilection.I finally got to see Pearl Jam last year (at a Quebec City show). I have attended many Rock and Roll concerts featuring the legends of our time. More than 25 years into their run, I defy any band to put on a show as compelling and wide-ranging as Pearl Jam’s (30+ songs that could have fit into roughly 4 subgenres of rock and packed into 3hrs and 15 minutes).”
  • “Ah, you sucked me in with Pearl Jam and Nirvana. The teenage version of me that lived through the release of those albums would have said Pearl Jam, hands-down. The 40-year-old version of me looking back says Nirvana all day long. Pearl Jam was much more derivative of prior bands and also did not develop as a band over the course of their career – they set it on autopilot and kept cranking out albums that all sounded the same. Nirvana was something that really altered the trajectory of popular rock music. I hate to say it, but Cobain’s death is part of that. Interestingly, I always found that Smashing Pumpkins vs. Nirvana was another binary choice of the era. Maybe even more than Pearl Jam, as Courtney Love had dated SP frontman Billy Corgan before Cobain, which added fuel to the fire. Just like with Pearl Jam, the teenaged version of me took Smashing Pumpkins over Nirvana, but the present-day version of me is almost embarrassed to admit that.”

 

Five for Friday #91: Nirvana v. Pearl Jam

Michael 1 Comment

91.

As most of you know, I like to use the intro to the #fiveforfriday quiz to connect the quiz number to pop culture.  Intros related to music have proven the most popular.

Earlier this summer, I used this space to argue Stones vs. Beatles.  My readers, as it turns out, are Beatles fans. One reader, however, persuasively argued that the choice isn’t binary – that one can be a fan of each band. It’s with that thought in mind that I approach this week’s intro.

In ’91, Pearl Jam released Ten and Nirvana released Nevermind.  Ten was released first, but went relatively unnoticed until the music world eagerly sought out anything related to the Seattle-sound in the wake of the enormous popularity of Nevermind.

For whatever reason, I’ve always considered Nirvana v. Pearl Jam to require a choice. In other words, it’s binary.  This summer I was hanging out with one of my cousins and a very good friend.  A Pearl Jam song came on.  My friend mentioned that he liked Pearl Jam better than Nirvana. I asked why.  He said he wasn’t really sure, other than “I felt like you had to choose one.”

But, I’m wondering, is the choice binary?

I used to subscribe to Rolling Stone.  Believe it or not, I still have 5 old issues.  Here’s a picture of 2 that I saved:

Grunge

I read them last night.  Looking back, to the extent the choice became binary, Kurt Cobain made it so.  It’s as if he demanded that fans choose.

Who’d you choose?

Full disclosure, and All Apologies, I chose Pearl Jam.  I don’t dislike Nirvana, and the older I get the more I appreciate them.  But I prefer Pearl Jam.  Very simply, I like their music better. Also, two of my closest friends in law school had gone to undergrad at UW and, in 90 & 91, got me interested in Mother Love Bone, the band from which Pearl Jam directly descended.

(Not to mention, one might argue that Pearl Jam is a basketball band.  Before it became PJ, the band was briefly known as Mookie Blaylock, in honor of the great Oklahoma point guard.  “Ten” is a reference to Mookie’s jersey number.  Jeff Ament was a damned good basketball player and huge hoops fan. Made the choice easy for me!)

That being said, as I read last night, I played Nevermind.   It’s stunningly good.  Lithium is one of my favorite songs.  As great as it is, Rolling Stone ranks it only Nirvana’s 7th best, and 4th best on its album! I’d say Nirvana satisfied the duty of competence with Nevermind.

Finally, something struck me as I read this Rolling Stone piece on Cobain.  Heroin led to his death.  Further, per the article, a few years before he died, Cobain and wife Courtney Love’s drug use factored into California’s child protection authorities temporarily taking custody of their daughter.

Here’s what struck me: I had just returned home from a Vermont Bar Foundation event at which the Poverty Law Fellow, Mairead O’Reilly, talked about the fantastic work she’s doing on the impact that opioids are having on Vermonters and the Vermont judiciary.  I realized that nearly 25 years after one of the world’s biggest rock stars lost custody of his daughter and committed suicide due to problems stemming from heroin use, we are still struggling to cope with the epidemic.

We need to do better.

Ironically, Pearl Jam might not exist but for heroin.  The band was formed only after Mother Love Bone lead singer Andrew Wood died of an overdose.  His death also led to the formation of Temple of the Dog, the band that made one of my favorite songs of the so-called Grunge era: Hunger Strike.  Sadly, the driving force beyond Temple of the Dog, Soundgarden’s Chris Cornell, took his own life earlier this year.  It wasn’t a heroin overdose.  Still, he’d apparently struggled with substance abuse for years.

We need to do better getting help to those in need, no matter the reason that they need help.

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

Jeremy approaches Lawyer for representation in a matter in which Lawyer has no real experience.  True or false:  the rule that imposes a duty of competence prohibits Lawyer from representing Jeremy.

Question 2

Attorney represents Dissident.  The State has charged Dissident with assaulting an Elderly Woman Behind A Counter In Small Town.  Attorney and Dissident remain Oceans apart on how to handle the defense, with Dissident upset that Attorney repeatedly says “you’re lucky she’s still Alive.”  For purposes of the Rules of Professional Conduct, which is different from the others?

  • A.   The plea that Dissident will enter.
  • B.   Whether to cross-examine Elderly Woman (if she testifies)
  • C.   Whether Dissident will waive a jury trial.
  • D.   Whether Dissident will testify.

Question 3

Daughter retains Lawyer.  Daughter agrees to pay an hourly fee for work performed.  Which is most accurate?

  • A.  The fee agreement must be reduced to writing.
  • B.  The fee agreement must be reduced to writing within a reasonable time.
  • C.  The fee agreement must be reduced to a writing that is signed by the client.
  • D.  The rules do not require the fee agreement to be reduced to writing.

Question 4

Attorney works at Big Firm.  Partners & Associates are departing like Rats fleeing a sinking ship.  So, Attorney decides to leave life at Big Firm in the RearviewMirror and opens a solo shop. There is a rule that imposes a duty of diligence.  A comment to the rule suggests that, as a solo, Attorney might have a duty:

  • A.  To prepare a succession plan.
  • B.  To remain abreast of developments in technology.
  • C.  To utilize a cloud-based practice management system.
  • D.  To retain or associate with a non-lawyer assistant trained in bookkeeping & trust accounting

Question 5

In 1994, Pearl Jam filed a complaint with the Department of Justice.  In a cover story, Time magazine referred to the complaint as “Rock’n Roll’s Legal Battle of the Century.” The battle eventually led to band members Stone Gossard and Jeff Ament testifying before Congress.

What was the subject of Pearl Jam’s complaint?

  • A.  An alleged monopoly resulting from Ticketmaster’s purchase of Ticketron
  • B.  An alleged monopoly resulting from Clear Channel buying up local radio stations
  • C.  Royalties & Columbia House’s 8 for the Price of 1 deal on CDs
  • D.  The method by which Billboard counted album sales for purposes of the Billboard Top 100,

 

Ten

 

 

 

 

 

 

 

 

Proposed Rule on Lawyer-Client Sex Published for Comment

Michael 2 Comments

The Vermont Supreme Court has published for comment a proposed rule that would ban lawyer-client sexual relationships that do not pre-date the professional relationship.

  • The proposed rule is HERE.
  • For background information, here are my blog posts on the topic.

Finally, here’s the language from the cover memo that accompanied the proposed rule:

  • The proposed amendment deletes Comment 12 to Rule 1.7 due to the simultaneous proposalto add Rule 1.8(j), which explicitly precludes a lawyer from having a sexual relationship with a client unless a consensual sexual relationship existed when the client-lawyer relationship began.
  • The proposed amendment to Rule 1.8(j) adds a prohibition on sexual relations between alawyer and client unless a consensual sexual relationship existed when the client-lawyer relationship commenced.                                                                       
  • The proposed amendment to Comment 17 clarifies that the rule applies
    to all sexual relationships formed after the commencement of the professional client-lawyer relationship, including consensual sexual relationships and sexual relationships in which there is no prejudice to the client’s interests in the matter that is the subject of the professional relationship. In such instances, a lawyer must withdraw from continued representation. See V.R.Pr.C. 1.16(a)(1).                                  
  • The proposed addition of Comment [18] provides guidance on sexual
    relationships that pre-date the commencement of the client-lawyer relationship.
  • The proposed amendment renumbers former Comment [18] as Comment [19] and clarifies that the conflict created by Rule 1.8(j) is personal for purposes of imputation. See V.R.Pr.C. 1.10.
  • The proposed new rule 1.8(j) tracks Rule 1.8(j) of the ABA Model Rules of Professional Conduct. Vermont joins 31 other states in adopting a specific prohibition on client-lawyer sexual relationships.
  • The proposed amendment is a “bright-line” rule that recognizes the serious risk to a client’s interest in receiving candid, competent, and conflict-free legal advice that is presented when the professional relationship turns sexual. Further, the proposed amendment is consistent with the fact that at least 18 of Vermont’s other licensed professions have adopted rules that specifically ban sexual relationships between a licensee and a client, patient, or person with whom the licensee has a professional relationship.
  • Comments on this proposed amendment should be sent by December 18, 2017, to Michael Kennedy, Bar Counsel, at the following address:

Michael Kennedy, Bar Counsel
Office of Bar Counsel
32 Cherry Street, Suite 213
Burlington, VT 05401
Michael.kennedy@vermont.gov

Legal Ethics

RIP – Ruth Stokes

Michael 1 Comment

Ruth Stokes passed away Monday.  Ruth was not a lawyer and most readers likely have no idea who she was.  I wanted to take a moment to call Ruth to your attention.

Ruth’s obituary reminds me how difficult it is to capture a life.  Simply, we aren’t paragraphs.  Ruth certainly wasn’t.

Her obituary is as understated as she was.  Not mentioned, Ruth served for many years as vice-chair of the State Board of Education.  In addition, she wasn’t just a member of the UVM Board of Trustees; she served stints as both Secretary and Chair.  In her role as Board Secretary, she signed an untold number of diplomas, including mine.

The main reason I write, however, is that Ruth served for a number of years as a member of the old Professional Conduct Board, and then for 6 years as a hearing panel member once we switched to the Professional Responsibility Board.  Through her work for the PCB and her work on the House Judiciary Committee, Ruth impacted the legal profession in a way few non-lawyers have.

She’s also the source of one of my favorite stories from my time as a disciplinary prosecutor.

Before I became a lawyer, Ruth met my mom through politics and shared circles.  So, by the time I was hired as deputy disciplinary counsel and made my first appearances before the PCB, Ruth and I knew of each other, and she certainly knew my family.

I don’t remember the year – i’m guessing 2000 or 2001 –  but I remember a disciplinary case I prosecuted before a panel upon which Ruth sat.  A few days before the hearing, I broke my nose playing basketball.  On the day of the hearing, my nose & eyes were still quite bruised.  As the panel entered and sat down, Ruth quipped “looks like the Kennedy boys fought their way out of a bar again this weekend.”

I broke out laughing.  Trust me, I took no offense and it was funny.

Anyway, that’s how I’ll always remember her.  Serious, and seriously dedicated to serving Vermont, but not so serious as to lose sight of the fact that we don’t need to be so serious all the time.  We can serve, but still enjoy the light moments.

Ruth Stokes – RIP.

Ruth Stokes

Have you heard the one about the $1 million fee award that walked into a spam filter?

Michael 1 Comment

It’s no joke.

UPDATE:  After reading my original post, a lawyer shared a story with me and authorized me to share it with you.  I’ve appended the story to this column. Because I think the story might serve as a valuable tip, I’m re-posting this blog to help draw attention to it. 

I’ve often blogged on the ethical duty of tech competence.  My posts on the topic are here.

Now, a cautionary tale from the real world.

Alberto Bernabe is a law professor at The John Marshall Law School. He’s also a regular presence on this blog’s #fiveforfriday Honor Roll.  Yesterday, on his own blog, Professor Bernabe posted ‘My computer ate my homework’ is not a good excuse.  His post links to a case that involves tech competence and a missed deadline to appeal an order awarding $1,000,000.00 in attorney’s fees.

The full story comes from Law For Lawyers Today.  The headline says it all: Deleted spam leads to missed appeal; not excusable, FL court of appeals holds.  Here’s the quick version:

  • Ben sued Tom.
  • Lawyer represented Ben.  Attorney, who works at Firm, represented Tom.
  • Ben won.
  • Lawyer moved for attorney’s fees.
  • The court granted the motion.
  • The court e-mailed the order to Attorney.
  • Attorney’s Firm’s e-mail system “filtered out” the order as spam.
  • Firm’s e-mail system was configured to delete spam after 30 days, without notice to a person.
  • Firm’s e-mail system deleted the order.
  • Tom moved for relief from judgment.
  • Attorney argued that Firm did not receive the order in time to file an appeal.
  • The trial court denied the motion.
  • An appellate court affirmed the trial court’s decision.

At the hearing on Tom’s motion for relief from judgment, Firm’s former IT person testified that he had advised Firm against configuring its e-mail system to delete spam after 30 days and without notice to a person.  He also testified that he advised Firm to buy an e-mail backup system and to retain a tech vendor to deal with e-mail spam.  Firm did not take the advice, in part to save money.

The appellate court noted that Firm’s failure to learn about the order was not the result from “mistake, inadvertence, surprise or excusable neglect.”  Rather, Firm intentionally chose to use “a defective e-mail system without any safeguards or oversight to save money. Such a decision cannot constitute excusable neglect.”

Competence includes tech competence.  For now, I’ll leave you with the final paragraph from the blog post that’s on The Law for Lawyers Today:

  • “The harsh result here may yet be ameliorated if the court of appeals grants rehearing.  In the meantime, however, the scary scenario points to the need to pay attention to your firm’s  technology and processes for handling spam.  And old-fashioned procedures like checking the court’s docket can also help avoid an unpalatable spam situation.”

UPDATE – here’s the abridged version of the story that a lawyer shared with me after reading my original post.

  • Lawyer represented Client.
  • Throughout matter, Lawyer & Client communicated via e-mail.
  • Matter went to a bench trial.
  • In a written decision, Trial Court found against Client.
  • Lawyer scanned the decision and attached it to an e-mail to Client.  In the body of the e-mail, Lawyer asked “Do you want to appeal?”
  • 31 days after decision was issued, Client called Lawyer and asked “have we heard anything from the trial court?”
  • Lawyer investigated and determined that the e-mail to Client was stuck in outgoing mail and had never left Firm’s server.
  • Over Opposing Party’s objection, Trial Court granted Lawyer & Client leave to file an untimely appeal.
  • On appeal, the Vermont Supreme Court granted Opposing Party’s motion to dismiss the appeal as untimely.

Lawyer’s firm took two lessons from the experience: (1) Lawyer regularly checks Lawyer’s spam folder & outgoing mailbox; and, (2) rather than relying on e-mail silence, Firm adopted a protocol to call clients on important issues, such as the decision whether to appeal.

 

Tech Incompetence

Have you heard the one about the $1 million fee award that walked into a spam filter?

Michael

It’s no joke.

I’ve often blogged on the ethical duty of tech competence.  My posts on the topic are here.

Now, a cautionary tale from the real world.

Alberto Bernabe is a law professor at The John Marshall Law School. He’s also a regular presence on this blog’s #fiveforfriday Honor Roll.  Yesterday, on his own blog, Professor Bernabe posted ‘My computer ate my homework’ is not a good excuse.  His post links to a case that involves tech competence and a missed deadline to appeal an order awarding $1,000,000.00 in attorney’s fees.

The full story comes from Law For Lawyers Today.  The headline says it all: Deleted spam leads to missed appeal; not excusable, FL court of appeals holds.  Here’s the quick version:

  • Ben sued Tom.
  • Lawyer represented Ben.  Attorney, who works at Firm, represented Tom.
  • Ben won.
  • Lawyer moved for attorney’s fees.
  • The court granted the motion.
  • The court e-mailed the order to Attorney.
  • Attorney’s Firm’s e-mail system “filtered out” the order as spam.
  • Firm’s e-mail system was configured to delete spam after 30 days, without notice to a person.
  • Firm’s e-mail system deleted the order.
  • Tom moved for relief from judgment.
  • Attorney argued that Firm did not receive the order in time to file an appeal.
  • The trial court denied the motion.
  • An appellate court affirmed the trial court’s decision.

At the hearing on Tom’s motion for relief from judgment, Firm’s former IT person testified that he had advised Firm against configuring its e-mail system to delete spam after 30 days and without notice to a person.  He also testified that he advised Firm to buy an e-mail backup system and to retain a tech vendor to deal with e-mail spam.  Firm did not take the advice, in part to save money.

The appellate court noted that Firm’s failure to learn about the order was not the result from “mistake, inadvertence, surprise or excusable neglect.”  Rather, Firm intentionally chose to use “a defective e-mail system without any safeguards or oversight to save money. Such a decision cannot constitute excusable neglect.”

Competence includes tech competence.  For now, I’ll leave you with the final paragraph from the blog post that’s on The Law for Lawyers Today:

  • “The harsh result here may yet be ameliorated if the court of appeals grants rehearing.  In the meantime, however, the scary scenario points to the need to pay attention to your firm’s  technology and processes for handling spam.  And old-fashioned procedures like checking the court’s docket can also help avoid an unpalatable spam situation.”

Tech Incompetence