Monday Morning Answers: #98

 

Jesse James

Congrats Patriots fans.

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

Honor Roll

Answers

Question 1

Which is different from the others?

  • A.  Prospective Clients
  • B.  Related Clients
  • C.  Current Clients
  • D.  Former Clients

There are specific rules that deal with A, C, and D (1.18, 1.7, 1.9).  The rules do not mention “related clients.”  

Question 2

A lawyer shall not practice in a for-profit professional corporation or association if:

  • A.  A non-lawyer owns any interest therein.
  • B.  A non-lawyer is a corporate director or officer.
  • C.  A non-lawyer has the right to direct or control the professional judgment of the lawyer.
  • D.   All of the above.  See, Rule 5.4(d)

Question 3

There’s a rule that prohibits a particular act.  There are 4 exceptions.  Per the exceptions, a lawyer may:

  1.   pay the reasonable costs of advertisements;
  2.   pay the usual charges of a legal service plan or a not-for-profit qualified lawyer referral service;
  3. pay to buy a law practice; and,
  4. enter into a referral agreement with another lawyer (or non-lawyer professional) that is not otherwise prohibited by the rules.

What’s the act that the rule prohibits?

  • A.   Sharing fees with a lawyer in another firm.
  • B.   Giving something of value to a person for recommending the lawyer’s services.  See, Rule 7.2(b).
  • C.   Disbursing trust funds in reliance upon deposits that have not yet cleared.
  • D.  Advertisements targeted by area code.

Question 4

Partner and Associate worked together on a case.  Partner asked Associate to prepare a pleading.  Associate did, but expressed concern that the pleading was frivolous.  Partner disagreed and instructed Associate to file the pleading.  Associate signed and filed the pleading.

Later, the trial court determined that the pleading was, in fact, frivolous.  The trial court referred the matter to disciplinary counsel for an investigation into whether Associate’s filing of the pleading violated Rule 3.1 of the Rules of Professional Conduct.

On these facts, which is most accurate?

  • A.   The trial court’s finding creates a rebuttable presumption that Partner & Associate violated Rule 3.1.
  • B.  The trial court’s finding operates to estop Partner & Associate from arguing that they did not violate Rule 3.1.
  • C.  Associate did not violate Rule 3.1.
  • D. Associate did not violate Rule 3.1, so long as Associate acted in accordance with Partner’s reasonable resolution of an arguable question as to whether the pleading was frivolous.

See, Rule 5.2(b).   Note: nothing in Vermont’s rules of disciplinary procedure create rebuttable presumptions of misconduct that lawyers must overcome.  Rather, disciplinary counsel bears the burden of proving a violation by “clear and convincing evidence.”  That is especially key in this question, where the standard applied by the trial court may not necessarily have been “clear and convincing.”

Question 5

Little did you know that a movie renowned for math could involve law.

One of the most competent pro se litigants in movie history was a character in a film that was nominated for Best Picture in 1998.  Despite having no formal education or training, Character was pretty damned competent.  Here’s the script for the scene where, at his arraignment on a charge that he had assaulted a police officer, Character argued his own motion to dismiss,

  • Character:  There is lengthy legal precedent, your honor, going back to 1789, whereby a defendant can claim self-defense against an agent of the government, if that act is deemed a defense against tyranny, a defense of liberty.
  • Prosecutor:  Your honor. . .
  • Character Henry Lloyd Beecher in Proverbs from the Plymouth Pulpit, 1887 says, and I quote . . .
  • Prosecutor:  1887? This is the 20th century, your honor.
  • Character:  Excuse me, excuse me.
  • Prosecutor:  You’re making a mockery of the Court!
  • Character:  I’m afforded the right to speak in my own defense, sir, by the Constitution of the United States.  This is the same document that guarantees my liberty.
  • Prosecutor:  Hey, don’t tell me about the Constitution of the United States.
  • Character:  Now, liberty, in case you’ve forgotten, is the soul’s rights to breath.  And when it cannot take a long breath, laws are girded too tight.  Without liberty, man is a syncope.
  • Prosecutor:  Man is a what?
  • Character:  Ibid,  your honor.
  • Judge:  Son, my turn. I’ve been sitting here 10 minutes now looking over this rap sheet of yours.   I just can’t believe it.  June ’93, Assault.  September ’93, Assault. Grand Theft Auto in February ’94, where you apparently defended yourself by citing Free Property Rights of Horse and Carriage from 1798.  January ’95, Impersonating an Officer, Mayhem, Resisting. All overturned.  I’m also aware that you’ve been through several foster homes.  The State removed you from three due to physical abuse.  You know, another judge might care, but you hit a cop.  You’re going in. Motion to dismiss is denied.  $50,000 bail.
  • Character:  Thank you your honor.

Character didn’t post bail, but didn’t stay in long either.  Soon after the arraignment, he was released to the supervision of an MIT professor who had been at the arraignment.  The professor had attended after having been intrigued by Character’s math skills.  In particular, the professor was impressed with Character’s ability to solve a proof that the professor’s  students couldn’t.

Character’s conditions of release required him to attend therapy sessions with the professor’s college roommate, a psychology teacher at a local community college.  In 1998, the actor who played the psychology teacher won the Academy Award for Best Supporting Actor.

Name the movie.

GOOD WILL HUNTING

Hint: the theme of #fiveforfriday #75 was Pudge Fisk’s home run in Game 6 of the 1975 World Series. In the movie that is the subject of today’s question 5, Character’s court-ordered therapist/psychologist recounts giving up his ticket to Game 6 because he had “to go see about a girl.”

Was That Wrong? Framing a volunteer at your kid’s elementary school for a drug crime.

Who doesn’t like a good love story???

Was That Wrong? is a semi-regular column on Ethical Grounds. The column features stories of the absurd & outrageous from the world of legal ethics and attorney discipline. My aim is to highlight misconduct that I hope you’ll instinctively avoid without needing me to convene a continuing legal education seminar that cautions you to do so.

The column is inspired by the “Red Dot” episode of Seinfeld. In the episode, George Costanza has sex in his office with a character known only as “the cleaning woman.”  His boss finds out.  Here’s their ensuing exchange :

(Scene) In the boss’ office.

  • Boss: I’m going to get right to the point. It has come to my attention that you and the cleaning woman have engaged in sexual intercourse on the desk in your office. Is that correct?
  • George: Who said that?
  • Boss: She did.
  • George: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, you know, cause I’ve worked in a lot of offices and I tell you people do that all the time.
  • Boss: You’re fired.
  • George: Well you didn’t have to say it like that.

The full script is HERE.  The scene is HERE.

costanza

Today’s lesson comes courtesy of two lawyers who were disbarred in California. As I alluded above, it’s a love story: our disbarred lawyers are married to each other!!! The story has been covered by Above The Law, the California Bar Journal, and OC Weekly.  I recommend the OC Weekly’s post.

Someday I hope to launch a YouTube channel tied to this blog.  When I do, I’ll adapt Was That Wrong entries to the screen.  Here’s how I envision scripting today’s:

  • Supreme Court:  We’re going to get right to the point.  It’s come to our attention that you & your wife got mad at a woman who volunteered at your son’s after school program.  So, you embarked upon a smear campaign against her. It culminated with you sneaking into her car & planting marijuana, Percocet, and Vicodin, then calling the police to report that you’d seen her driving erratically in the school parking lot.
  • Lawyer:  Who said that?
  • Supreme Court: The volunteer, the police, and the jury that convicted you of false imprisonment.  Oh, and, at trial, you admitted it, but argued that you only did it as part of a plan to win back your wife’s favor after she had an affair.
  • Lawyer: Was that wrong? Should I have not that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started practicing law that that sort of thing was frowned upon, you know, cause I’ve worked in a lot of offices and I tell you people do this stuff all the time.
  • Supreme Court:  Disbarred.
  • Lawyer:  Well you didn’t have to say it like that.

For more, here are the previous entries in Was That Wrong?

Five for Friday #98

Welcome to #98!

98

Have you ever woken up to news that you were dead? No?  Not surprising.

Why do I ask? Because it’s about the very first thing that I did in 1998.

I was younger in 1998.  Back then, I did things that young(ish) people do on New Year’s Eve.  So, when I woke up on January 1, 1998 . . . well, let’s just say that it was one of those mornings that involved taking inventory.

While this might sound shocking, back then, I didn’t have internet or a cell phone. (RIP 864-3477!)  So, needing a newspaper (and cheap coffee), I walked down to the gas station on the corner of Swift Street and Shelburne Road.  It was the only place in walking distance that sold The Boston Globe.

That’s where I saw it:

Michael Kennedy Dies in Skiing Accident.”

I spit out my coffee and I hadn’t even drank any yet.

  • “Wait, did we go to Bolton last night?  Wait, of course we didn’t, I don’t ski.  But, wait, maybe that’s why . . . the tree .  . . Wait, heaven has gas station coffee???”

Only to be dragged back to reality by the worker saying “ummm, are you going to read it or buy it?”

For those of you who expected this week’s post to be about 98 Degrees, over my dead body.  Wait  . . .

Onto the quiz!

Rules

  • None.  Open book, open search engine, text/phone/email-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

Which is different from the others?

  • A.  Prospective Clients
  • B.  Related Clients
  • C.  Current Clients
  • D.  Former Clients

Question 2

A lawyer shall not practice in a for-profit professional corporation or association if:

  • A.  A non-lawyer owns any interest therein.
  • B.  A non-lawyer is a corporate director or officer.
  • C.  A non-lawyer has the right to direct or control the professional judgment of the lawyer.
  • D.   All of the above.

Question 3

There’s a rule that prohibits a particular act.  There are 4 exceptions.  Per the exceptions, a lawyer may:

  1.   pay the reasonable costs of advertisements;
  2.   pay the usual charges of a legal service plan or a not-for-profit qualified lawyer referral service;
  3. pay to buy a law practice; and,
  4. enter into a referral agreement with another lawyer (or non-lawyer professional) that is not otherwise prohibited by the rules.

What’s the act that the rule prohibits?

  • A.   Sharing fees with a lawyer in another firm.
  • B.   Giving something of value to a person for recommending the lawyer’s services.
  • C.   Disbursing trust funds in reliance upon deposits that have not yet cleared.
  • D.  Advertisements targeted by area code.

Question 4

Partner and Associate worked together on a case.  Partner asked Associate to prepare a pleading.  Associate did, but expressed concern that the pleading was frivolous.  Partner disagreed and instructed Associate to file the pleading.  Associate signed and filed the pleading.

Later, the trial court determined that the pleading was, in fact, frivolous.  The trial court referred the matter to disciplinary counsel for an investigation into whether Associate’s filing of the pleading violated Rule 3.1 of the Rules of Professional Conduct.

On these facts, which is most accurate?

  • A.   The trial court’s finding creates a rebuttable presumption that Partner & Associate violated Rule 3.1.
  • B.  The trial court’s finding operates to estop Partner & Associate from arguing that they did not violate Rule 3.1.
  • C.  Associate did not violate Rule 3.1.
  • D. Associate did not violate Rule 3.1, so long as Associate acted in accordance with Partner’s reasonable resolution of an arguable question as to whether the pleading was frivolous.

Question 5

Little did you know that a movie renowned for math could invole law.

One of the most competent pro se litigants in movie history was a character in a film that was nominated for Best Picture in 1998.  Despite having no formal education or training, Character was pretty damned competent.  Here’s the script for the scene where, at his arraignment on a charge that he had assaulted a police officer, Character argued his own motion to dismiss,

  • Character:  There is lengthy legal precedent, your honor, going back to 1789, whereby a defendant can claim self-defense against an agent of the government, if that act is deemed a defense against tyranny, a defense of liberty.
  • Prosecutor:  Your honor. . .
  • Character Henry Lloyd Beecher in Proverbs from the Plymouth Pulpit, 1887 says, and I quote . . .
  • Prosecutor:  1887? This is the 20th century, your honor.
  • Character:  Excuse me, excuse me.
  • Prosecutor:  You’re making a mockery of the Court!
  • Character:  I’m afforded the right to speak in my own defense, sir, by the Constitution of the United States.  This is the same document that guarantees my liberty.
  • Prosecutor:  Hey, don’t tell me about the Constitution of the United States.
  • Character:  Now, liberty, in case you’ve forgotten, is the soul’s rights to breath.  And when it cannot take a long breath, laws are girded too tight.  Without liberty, man is a syncope.
  • Prosecutor:  Man is a what?
  • Character:  Ibid,  your honor.
  • Judge:  Son, my turn. I’ve been sitting here 10 minutes now looking over this rap sheet of yours.   I just can’t believe it.  June ’93, Assault.  September ’93, Assault. Grand Theft Auto in February ’94, where you apparently defended yourself by citing Free Property Rights of Horse and Carriage from 1798.  January ’95, Impersonating an Officer, Mayhem, Resisting. All overturned.  I’m also aware that you’ve been through several foster homes.  The State removed you from three due to physical abuse.  You know, another judge might care, but you hit a cop.  You’re going in. Motion to dismiss is denied.  $50,000 bail.
  • Character:  Thank you your honor.

Character didn’t post bail, but didn’t stay in long either.  Soon after the arraignment, he was released to the supervision of an MIT professor who had been at the arraignment.  The professor had attended after having been intrigued by Character’s math skills.  In particular, the professor was impressed with Character’s ability to solve a proof that the professor’s  students couldn’t.

Character’s conditions of release required him to attend therapy sessions with the professor’s college roommate, a psychology teacher at a local community college.  In 1998, the actor who played the psychology teacher won the Academy Award for Best Supporting Actor.

Name the movie.

Hint: the theme of #fiveforfriday #75 was Pudge Fisk’s home run in Game 6 of the 1975 World Series. In the movie that is the subject of today’s question 5, Character’s court-ordered therapist/psychologist recounts giving up his ticket to Game 6 because he had “to go see about a girl.”

 

Thursday’s Tidbits

 

Tidbits

I’ve scoured the interwebs to bring you the latest news that may or may not be related to legal ethics & professional responsibility.

  1. I often blog on the duty of competence.  Remember the LSAT?  For many years, critics have argued that the LSAT makes no effort to measure, and does not predict, professional competence.  Well, someday soon, you might be working with a lawyer who never took it.  As reported by The Wall Street Journal, an increasing number of law schools are dropping the LSAT requirement.
  2. My posts on the duty of competence usually relate to tech competence.  A post on SLAW, argues that laptops should be banned in law school classrooms and, perhaps, courtrooms.
  3. If you use your laptop, you might remember my blog on the Legal Keyboard. On his LawSitesBlog, Robert Ambrogi updates us on the mini version for travel.
  4. Rule 1.5 prohibits unreasonable fees.  It’s okay to accept a fee in something other than money.  For instance, property.  But, as this suspension order from the Ohio Supreme Court reminds us, the value of the property must reasonably approximate the value of the services provided —  and, of course, the property transfer must not violate the criminal law.
  5. Next year is an election year in Vermont.  Professor Alberto Bernabe, a frequent member of the #fiveforfriday Honor Roll, blogged on whether defense lawyers should be allowed to contribute to prosecutors’ campaigns.
  6. Is your firm set up as a partnership or, perhaps, an LLC? The TaxProfBlog links to a Wall Street Journal article For Pass-Through Businesses, Let The (Tax) Games Begin.
  7. Related, yesterday, the ABA Journal reported that the ABA asks Congress to include law firms in pass-through tax relief.
  8. Last week I blogged on paralegal licensing.  A post on Law Times argues that it is Time for graduated licensing for lawyers.
  9. From the ABA Journal, apparently there’s a ” ‘baffling phenomenon’ of lawyers who shoplift.”    It might make you ask yourself “self, was that wrong?”
  10. Regarding judicial ethics, can a judge use the internet for independent legal research?  This advisory opinion from the ABA has the answer.  For a synopsis, the ABA Journal article on the opinion is here.

 

 

In a Season of Giving, Consider Pro Bono

It’s a season of giving.  As I’ve aged, I’ve learned that the gift of time is often more appreciated than a gift of a thing.  The lesson might translate to the legal profession.

Yesterday I noticed this tweet from Attorney Bob Carlson.  Bob is the President-Elect of the American Bar Association.  It reminded me that the need for our time never goes away.

Pro Bono is the legal profession’s way of giving time.  As Bob tweeted, one easy way to give of your time is through the ABA’s Free Legal Answers program.  Vermont participates in the program.  For more information, please visit https://vt.freelegalanswers.org/

In addition, Mary Aschroft is the Vermont Bar Association’s Legal Access Coordinator.  Please contact Mary if you’re interested in learning more about the various opportunities to provide pro bono (or low bono) legal services.

I’ve pasted in a refresher on the ethics of pro bono at the end of this post.

For now, thank you for considering a gift of your professional time.

Give Pro Bono

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

These tips originally appeared in October 2016.

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.

 

 

Tech Competence: Tips and a Conference

As Olivia might sing, let’s get techical, techical.

Last week, the Professional Responsibility Board voted to recommend a series of amendments to the Vermont Rules of Professional Conduct.  The package will be forwarded to the Supreme Court for publication for comment.

Rule 1.1 requires lawyers to provide clients with competent representation.  Among other things, the Board will recommend that the Court amend Comment [6] to Rule 1.1 so as to add language that is highlighted & underlined:

  • “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”

As of September 2017, 28 states have adopted the amendment.

If you’re concerned about tech competence, fear not!

  • On May 16, 2018, the Vermont Bar Association will present its inaugural Tech Day. Save the date! It’s scheduled to take place at the Sheraton-Burlington and will include several practical seminars.
  • Yesterday, Robert Ambrogi’s LawSites blog posted tips related to tech security, including a suggestion to consider client portals.

Finally, I’ve blogged often on this topic.  Related posts include:

 

 

Don’t Switch Sides.

Last month, I posted The 50 Original Rules.  It’s a post that briefly recaps the history of the conduct rules that apply to lawyers.  Best I can tell, the earliest record of guidelines for attorney conduct in the United States is David Hoffman’s 1836 publication of his Fifty Resolutions in Regard to Professional Deportment.  My post includes each of Hoffman’s 50 resolutions.

181 years later, it’s somewhat fascinating to me how many of Hoffman’s resolutions continue to resonate.  Many are embedded in the current rules and our collective professional conscience.  Given my fascination, I’ve resolved to blog about the continued relevance of Hoffman’s resolutions, taking them one at a time.

I don’t know how long it’ll take me to get through all 50.  No matter, if even one of the resolutions resonates with but one of you, this endeavor will have been a success.

To date, I’ve blogged that Hoffman’s first resolution can be summarized as Don’t be a JerkActually, looking back, the first 6 resolutions fall under that title.  Today I want to focus on Resolution #8.  It addresses conflicts of interest and is simple: don’t switch sides.

Aside –  talk about conflicts! As I write this, I just learned that the Miami Marlins traded Giancarlo Stanton to the New York Yankees. The Marlins executive who greenlit the trade is Derek Jeter who, of course, is Mr. Yankee.  I have a great imagination.  Nevertheless, not even I can imagine a situation in which a lawyer does something akin to retiring from the Yankees, taking a job running the team that has one of the Top 3 players in baseball, then immediately trading that player to the Yankees.  Whatever the scenario, it’d certainly end in disbarment.  Lest I violate the maxim “Don’t Be a Jerk,” I won’t say anything further.

Back to Resolution #8. Here it is:

  • 8.    If I have ever had any connection with a cause, I will never permit myself (when that connection is from any reason severed) to be engaged on the side of my former antagonist. Nor shall any change in the formal aspect of the cause induce me to regard it as a ground of exception. It is a poor apology for being found on the opposite side, that the present is but the ghost of the former cause.

Compare that to Rule 1.9(a):

  • Duties to Former Clients. A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.

Conflicts can be difficult to assess.  As you work your way through them, try to distill them to the most basic level.  181 years later, Hoffman’s resolution provides excellent guidance: don’t switch sides.

Back to Jeter – I guess he didn’t switch sides.  Indeed, that’s the problem.  As a Marlin, he’s still a Yankee!  Serenity now!

conflict

Paralegal licenses: incremental improvement to access isn’t perfect, but it isn’t bad.

Wrong

In 2013, the Washington Supreme Court adopted a rule authorizing limited license legal technicians to practice.  In 2015, the Legal Education Committee of the Vermont Joint Commission on the Future of Legal Services recommended something similar: authorization for Vermont Certified Paralegals to provide limited legal services.  The recommendation was based, in part, on the staggering number of self-represented litigants in Vermont’s civil docket.

Washington’s LLLT program is here.  The report of the Vermont Joint Commission is here.  The recommendations from the Legal Education Committee begin on page 11.

I chaired the Legal Education Committee.  The idea of a Vermont Certified Paralegal program hasn’t gained much traction.  Which makes me wonder . . .

. . . what if we got it wrong?

To be clear, I don’t think we were wrong to recommend limited licensure for paralegals.  Rather, I wonder if we were wrong to recommend a training & certification program that includes too many barriers to entry.  Did we focus too much on creating mini-lawyers, when far less would be a gargantuan improvement in access to legal services?  In short, did we make “perfect” an enemy of “good?”

These thoughts struck me late yesterday afternoon as I read Mary Juetten’s article in the ABA Journal: The limited license legal technician is the way of the future of law.

Some of Juetten’s key points:

  • “First, access to justice is not limited to low-income Americans. The 80 percent unmet need figure is based on the entire population. Therefore, many families cannot qualify for help and cannot afford an attorney.”
  • “Second, most middle-income citizens carry debt loads commensurate to their earnings, and any unplanned expenses are difficult to cover.”
  • “Third, many family law attorneys charge anywhere from $250 to $400 per hour, which is still more than double that of a LLLT. For example, using a 10-hour matter, a LLLT could charge up to $1,500 but an attorney would be $4,000. That $2,500 is a substantial savings to almost everyone.

Think about that.  $2500.  I’m guessing that even among the demographic reading this blog, $2500 isn’t an amount tossed around casually.

From there, Juetten notes:

  • “As of this month, there are only 26 LLLTs licensed in Washington, mainly concentrated in the Seattle-Tacoma area. The program appears to suffer from barriers to entry including the cost of the classes and the duration of the practical experience requirement. In addition, the classes are not eligible for student aid, so it is also expensive.”

And it’s about when I finished the last paragraph that I said to myself “Self, what if we got it wrong?”

As we consider whether to issue limited licenses to paralegals, we shouldn’t design or require training & certification programs that approximate law school.  The goal shouldn’t be to provide people who can’t afford lawyers with access to something that  walks, talks, and looks like a lawyer.  It should be to provide them with something that is better than they have now – which is nothing.

It’s long past time to think outside the box.  Let’s play “what if.”

What if an 8-week training program is sufficient to provide competent & practical legal services that are better than nothing?  What if it’s 6 weeks?  What if it’s 2?

We didn’t consider those options.  Maybe we should. I mean, we let new lawyers hang their own shingles without requiring liability insurance or any training in trust accounting.

Let’s be honest: right now, there are high-quality Vermont paralegals who, without any additional training, could walk into a courthouse and provide much needed access to the scores of family law litigants without any.  Seriously.  If you were to get divorced tomorrow, who would you choose? A paralegal who has worked for years in a family law practice, or, me?  I’ve been licensed for 23 years and wouldn’t know the first thing to do for you.

I’m not declaring that an 8 (or 6 or 2) week training program is sufficient.  But again, what if it is?  The Vermont Bar Association is more than capable of providing comprehensive and high-quality training.

Some of you might be rolling your eyes and asking “what good would that do in the bigger picture?”   You’re right, it’s not perfect.  There will still be too many people who can’t afford legal services. But, we have to stop looking for the magic bullet that solves the entire problem at once.  The “big picture” gets smaller by providing access to 1 person at a time.

One of my priest’s favorite sermons centers on Loren Eisley’s The Starfish Story.  Here’s the story:

One day a man was walking along the beach when he noticed
a boy picking something up and gently throwing it into the ocean.

Approaching the boy, he asked, “What are you doing?”

The youth replied, “Throwing starfish back into the ocean.
The surf is up and the tide is going out.  If I don’t throw them back, they’ll die.”

“Son, the man said, “don’t you realize there are miles and miles of beach and hundreds of starfish?
You can’t make a difference!”

After listening politely, the boy bent down, picked up another starfish,
and threw it back into the surf.  Then, smiling at the man, he said
“I made a difference for that one.”

So, maybe we got it wrong.  In a perfect world, a Vermont Certified Paralegal might have thousands of hours of practical work and a semester or two of legal curriculum. For now, however, it might require far less to begin to make a difference.

 

Five for Friday #97

Welcome to #97!

97 is the number of blogs I didn’t write this week.  You see, I’m back into coaching.  In 2014, I retired after having coached varsity basketball for 15 years.  This year, I agreed to help a friend with South Burlington’s middle school teams.  He’s got the “A” team, I’ve got the “B.”  Is it different than varsity? Yes! Is it awesome? Hell yes!!

The “B” squad opened the season yesterday with a 35-15 victory over Essex Middle School.  With the first game out of the way, the jitters are gone and I’ll again use my free time to blog.  And, since I know you’ll be wondering, I’ll be sure to include updates on the squad.  Go Wolves!  #hearthehowl

Ok.  A housekeeping item.  I made a few Netflix recommendations last week.  I’d like to amend one:  Harley Coben’s The Five didn’t turn out as strong as the first few episodes suggested it might.  And, now, I’d like to add one.

As I tried to think of a way to tie 97 to the quiz, I looked at the results from the 1997 Academy Awards.  Fargo received a ton of nominations.   A few years ago, the Coen brothers produced a tv version.  3 seasons have aired.  Out of 5 stars, I give it 8.

The cast changes each season.  My favorite – Season 1, which won the 2014 Emmy and Golden Globe for Outstanding Mini Series.  Billy Bob Thornton starred, with fantastic support from many others, including Martin Freeman.  Freeman has rocked many different roles, but if you try to tell me that his best is anything other than as Tim in the UK version of The Office, well, we can’t be friends anymore.

Tim British Office

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

The trust account rules require lawyers to reconcile trust accounts:

  • A.   Timely, with “timely” being no less than monthly
  • B.   Every other month
  • C.   Quarterly
  • D.   The rules are silent as to how often trust accounts must be reconciled

Question 2

Soon, the Professional Responsibility Board will formally recommend that the Court review several proposed changes to the Rules of Professional Conduct.  One recommendation will be to amend the rule that applies to “lateral transfers.”

Generally, a “lateral transfer” raises issues related to:

  • A.  Trust accounting
  • B.  Conflicts that arise when a lawyer changes firms
  • C.  The papers & information that must be in the file when it’s delivered to the client
  • D.  A terminated lawyer’s duty of confidentiality when updating a former client’s new lawyer on the status of the matter

Question 3

Attorney called with an inquiry. I listened, then replied “the rule applies to statements of fact.  The Comment suggests it doesn’t apply in negotiations or to mere ‘puffery’ to opposing counsel.”

What rule?

  • A.    Trial Publicity
  • B.    Client Confidences
  • C.    Advertising
  • D.   Truthfulness in Statements to Others

Question 4

Lawyer called me with an inquiry. I listened, then replied by reading the rule aloud.   Then, I said “here are the exceptions. Among other things, you can state information that’s in the public record, including the claims, defenses, and names of people involved.  You could also request assistance obtaining information or evidence.  Just don’t do anything that will have a substantial likelihood of materially prejudicing the outcome.”

What rule?

  • A.    Trial Publicity
  • B.    Client Confidences
  • C.    Advertising
  • D.   Truthfulness in Statements to Others

Question 5

Speaking of the 1997 Academy Awards, Fargo won two of the major awards:  Frances McDormand won Best Actress and Joel Coen won Best Screenplay.

The same year, another movie received nominations for several of the major awards.  It’s a movie that was based on Leigh Steinberg.  In real life, Steinberg is a lawyer and agent who has represented many top athletes.  In ’97, the actor who played Steinberg was nominated for Best Actor, but didn’t win.  However, Cuba Gooding Jr. won for Best Supporting Actor for his role as one of the clients.

Name the movie.

Fargo