Editor’s Note, May 27, 2022: Deputy State’s Attorney Heather Brochu is now Vermont Superior Judge Heather Gray.
Welcome to #118!
The number 118 will always remind me of marathons. Here’s why.
I ran my first marathon in 2008. My goal was to be able to say I’d run a marathon. A few months after I finished, I decided anybody could run 1 marathon, so it’d be better to be able to say “I’ve run 2 marathons.” So, I ran another in 2009.
My goals evolved. Next was to qualify for the Boston Marathon. After mulitple failures, I finally did. My current goal is to finish 20 marathons. If I finish, Sunday’s Vermont City Marathon (“VCM”) will be my 20th marathon and 11th VCM.
Don’t worry – I’m about to connect this to 118.
Of the 19 marathons I’ve run, most were positive experiences. Two exceptions: the 2013 and 2014 Boston Marathons.
2013 was my first Boston. It was the year of the bombs. Fortunately, I’d finished well and was in my hotel when they exploded. It was one of the saddest, most surreal days of my life.
I ran Boston again in 2014. I still don’t know whether it was food poisoning or a stomach bug, but the night before the race I came down with the runs – no pun intended. I couldn’t go 15 minutes without needing to use the bathroom or a port-o-let on the course. As a result, I struggled throughout, almost quit, and ended with a crappy time.
My finish devastated me. I had been desperate to do well, if only to honor the 2013 victims. Once I finished, I walked to Boston Common, sat down, and cried. It’s the only time I’ve cried after a race and, I think, the last time I cried in my life.
That race was the 118th Boston Marathon. So, 118 (and 117 for that matter) are numbers that I’ll always associate with marathons.
Which is ironic given that the 118th quiz falls on the same weekend as VCM.
Late yesterday, I decided to send an e-mail to some Vermont lawyers who are marathoners. I posed a few questions that, as you’ll see, are loosely connected to legal ethics. The lawyers were incredibly kind to reply. The questions and responses are below. If this isn’t your thing, feel free to scroll to the quiz.
(note: not every lawyer responded to every question)
- Karen Allen, perennial member of the #fiveforfriday Honor Roll
- Heather Brochu, Deputy State’s Attorney, Franklin County
- Danielle Fogarty, former champ, PRB Legal Ethics Trivia Contest
- Howard Kalfus, Hearing Officer, Vermont Judicial Bureau
- Jordana Levine, perennial member of the #fiveforfriday Honor Roll
- Josh Lobe, esteemed member of the Board of Bar Examiners
- Sarah London, Assistant Attorney General
- Rob McDougall, Assistant Attorney General
- Walter Morris, Vermont Superior Judge
Kennedy: In legal ethics & professional responsibility, conflicts of interest can be tricky for lawyers to navigate. With marathons, I’ve noticed several types of conflicts. Mainly, training can conflict with life. But, talk to me about this: how do you handle the conflict that often arrives late in the race: the conflict between the desire to stop and the desire to fight on to the finish?
- Judge Morris (19 marathons, including 10 or 11 VCMs): As my pace generally slows, training time becomes more and more difficult. I have learned to be very flexible with the schedule; so, if it is going to be pouring rain on a long mid-week, or weekend run, I just go a day earlier, or a couple of days later. This Spring has been very challenging, so there’s been lots of that. As you know, I’m on a two-week taper, having done my 20+ about a week late. On the Grinding out the Finish, I just go into a zone and stay there. Lots of mantras, drifty and inspiring thoughts, music in my head from the old days, etc. For Burlington, once I hit the stretch on the bike path, there is no stopping.
- Heather Brochu (10 marathons, 4 VCMs): There are a few things that always help me w/my inner struggles during a race. I try to always remember to run the mile I am in; do not think about how many miles I have to go or if the one before was a tough one. Also, just the simple competitor in me. I am sure this is true for all us, I do not like to give up or lose. I know any pain I feel will subside (physical & mental). Last thing I do often, might be a little sappy, I run for those who cannot.
- Jordana Levine (4 marathons, 1 VCM): My challenge in the race usually comes just far enough along but not close enough to the finish, and I just tell myself that if I stop it will take longer, and to just focus on each mile, just get to that next mile marker.
- Karen Allen (8 marathons, 3 VCMs) I ran a race where I felt incredible sharp pain in my foot, and was about to quit. I walked a bit and the pain seemed to subside. Not sure how I finished it, all I know is that I was keeping with my pace group and my head said keep going. Not sure I felt my foot again. Anyway, injury was mile 16. Couldn’t quit. Thinking how fortunate I was that I could run. As it turns out, I ruptured a tendon in my foot.
- Josh Lobe (13 marathons, 6 VCMs): Not to go all choir boy, but pretty similar for me. In practice, I always erred on the side of good ethics in any conflict situation. Close call, don’t take the case, do the right thing, ignore the facts or whatever else arose. Same thing in a race. Never had a DNF or even thought about it. (Walking, now that’s a different story). No brainer in both cases.
- Danielle Fogarty (5 marathons): The desire to finish without question outweighs any desire to stop. I don’t want to stop unless I’ve finished. So, if I’d like to stop, but am not yet finished, it all becomes mental – tuning in, man this is hard, calm down, relax, focus. I think of form, steadiness, and all I have to do is keep going. I tune in that this is the time to do this now … when this is over, it’s over, and I can’t go back. This is the time to do this now, until I finish. I hear some are anxious about whether they’ll finish. I don’t feel anxious about whether I’ll finish … I might get anxious about the pain until I finish… but that ends, too. I think marathon training trains our mental processes – and that definitely carries over to practicing law. A time may come when I don’t like what I’m doing – but I tune in to hold form and finish because I can’t go back.
- Rob McDougall (16 marathons, 3 VCMs): I just try to focus on the mile I’m running. I don’t think about how many I have to go or how many I’ve run so far.
- Sarah London (11 marathons, 3 VCMs): If I have that thought, it is usually early in the race. Boston is actually a good course for this – one year I thought I should quit at mile 5 and then realized that, with the roads closed to traffic, running was probably the simplest way to get back.
- Judge Kalfus (24 marathons, 11 VCMs): I’ve run enough marathons to know three things for sure: 1) this is gonna hurt; 2) I know I can drop but I also know that the pain is for a finite time; and 3) I know that feeling of crossing the finish line after months of training and preparation. This knowledge is what helps to resolve that conflict that I still feel every time.
Kennedy: I often urge lawyers that the best way to avoid an ethics complaint is to set reasonable expectations at the outset of a representation. In marathons, I’m too often not honest with myself and talk myself into unreasonable expectations. Is that an issue for you?
- Judge Kalfus: I have historically suffered from the opposite problem. Growing up, I was quite literally the fat kid in the band. When I started training for and running marathons, I thought that I was incapable of being the slightest bit competitive. Then I met someone with my same build who was running these blistering times. I got a coach, hit the track and started exceeding my own expectations with the coaching and support of my fellow runners.
- Danielle Fogarty: I’m pretty steady – pretty reasonable – maybe under expecting … I feel like I’m probably safer than I need to be … I think in general my comfort zone like a high safety net. In practice, I feel clients trust me easily and I need to be careful (not carefree) about that.
- Josh Lobe: In about half of my marathons, I’ve set unreasonable expectations for myself with pretty much universally disastrous results. Shockingly somehow in the other half, I set a reasonable goal was to both satisfy the goal and more or less enjoy the experience.
- Rob McDougall: I always have a pretty good feel for what I can do from training, but so much of the race ultimately depends on “day of” stuff (how I feel, weather/temperature, food/fueling, etc.) that I don’t get too attached to any particular expectation
- Sarah London: (Note: Sarah has actually won a marathon) Same coin, different side? I very rarely break the tape in any race. Once I remember following a bike towards flashing blue lights and what i thought was police-line-do-not-cross tape and thought, why am I being directed to run right at what must be a car accident.
- Heather Brochu: Yes, I often set unreasonable expectations and always think I could’ve/should’ve of done better.
- Judge Morris: Expectations? Just to finish, and enjoy the company.
- Jordana Levine: I’m too conservative, I think. I should probably push myself more. My goal for this year is to have a half marathon under 2 hours – I’ve been close for the past two or three years.
Kennedy: I preach that the ethical duty of competence includes tech competence. I used to run by feel and, for years, didn’t use any sort of GPS. Now, I feel naked if I run without my Garmin. In marathons, I have trouble not looking at my Garmin every 10 steps to make sure I’m not going too fast or slow. I often wonder if my reliance on technology prevents me from truly enjoying the experience of running and, in a way, making me less competent as a runner. How about you? Are you into runners’ tech or do you run more by feel?
- Josh Lobe: I think technology enhances performance, but takes some of the fun out of it. When I was doing a decent amount of triathlons, when I first got serious on the bike I had my cyclometer, my first generation HRM and something that gave me cadence. I’d be riding through the beautiful Vermont Countryside and not noticing anything but a bunch of data flashing in front of me. I chucked all the electronics and decided to look around. Much more scenic and safer too.
- Rob McDougall: Tech! A Garmin watch to tell me the pace I’m running.
- Jordana Levine: I run with a gps watch, I think it makes me a better runner – it motivates me, keeps me focused, but also helps me run my feel – because on my mid-week runs I wear it but don’t usually look at it much.
- Sarah London: Not sure. One very hot marathon I came to a tall red timing clock that read 4 hours and 25 minutes and I wasn’t even halfway done. I thought, wow I must be having a really bad day and this Garmin is way off. Turns out that was a sign for the price of gas.
- Judge Morris: Tech–that’s a no go for me, totally. I really don’t want live feed as to how I’m doing, I try to stay in touch with my body and mind. Besides, at my stage, carrying even a few ounces of a device is a concern!
- Judge Kalfus: I’m a tech guy. I think that without my Garmin, I’d be standing in the middle of the race course wondering what I’m supposed to be doing. That said, I do dream of someday becoming less compulsive about my running.
- Heather Brochu: I love my GPS, I feel lost without it. Not sure that is good. Before Boston this year I read how Summer Sanders a few years ago went to start her GPS at the start of Boston and then came to the realization that her whole obsession with time was getting to Boston, not running it. She did not start hee GPS and instead ran race for pure enjoyment. I tried not to use GPS this Boston. I looked it at very little and tried to run on feel and pure enjoyment, just loving the moment!
- Karen Allen: I also feel naked when I don’t wear my GPS, but my best time was when I ran with a pace group and didn’t look at my watch. So, will I run with GPS? Yup. I will try not to look at it, but I like looking at the splits and seeing if I ran long. (editor’s note: “running long” means running further than the measured distance. usually this happens from weaving in & out of other runners, or taking turns too wide. there are LOTS of turns at VCM)
Kennedy: In Vermont, we lawyers like to say that the bar is different here – kinder, gentler if you will. I’ve run marathons in 8 states. To me, VCM is different from other marathons: it’s way better, for many different reasons. Most notable to me – the crowd support. Thoughts?
- Karen Allen: VCM – although there is an excitement about running a big city marathon with 50k other runners, hometown is great. No need for arranging transportation to the start and waiting there for hours. Living 1.5 miles from the start is ideal. Running in familiar neighborhoods and seeing friends and family throughout is amazing. Oh hey- what about the lake views? Nuff said.
- Judge Morris: VCM is definitely kinder, gentler, than anywhere. Lots of friends and familiar faces help. But I have to say, Boston cannot be beat for the experience and the crowds.
- Josh Lobe: Never practiced anywhere else but have read enough Grisham to get a sense of what lawyering is like in some other jurisdictions. I have run in some big law cities though. Fully agree with your premise. People are pretty damned nice around here whether its contested hearing or a water stop.
- Danielle Fogarty: I haven’t run VCM… I ran the Shires in Bennington County 3 times and Boston twice. I know I love the training camaraderie in Vermont, and the integration of running with all else in the day of life … without being intense or all important or all about ‘running.’ There’s a lot more going on.
- Jordana Levine: I love VCM – the energy, support along the course, the course itself – it’s definitely one of my favorites; I always see people I don’t expect to see.
- Rob McDougall: I agree. The community and spectators really make the race fun with how they embrace and support it – especially in some of those neighborhoods along the 2nd half.
- Heather Brochu: I absolutely love VCM definitely one of my favorites, the other favorite is of course Boston. I am bummed not to be running VCM this year.
- Judge Kalfus: I agree whole-heartedly. I’ve run marathons in six different states and in Canada. I keep coming back to VCM not just because of the convenience, but also because of the great spectators, great scenery and the wonderful community support.
Onto the quiz!
- None. Open book, open search engine, text/phone/email-a-friend.
- Even question 5!
- Unless stated otherwise, the Vermont Rules of Professional Conduct apply
- Team entries welcome, creative team names even more welcome.
- E-mail answers to firstname.lastname@example.org
- I’ll post the answers & Honor Roll on Monday
- Please don’t use the “comment” feature to post your answers
- Please consider sharing the quiz with friends & colleagues
- Please consider sharing the quiz on social media. Hashtag it – #fiveforfriday
With respect to legal ethics, which involves a different set of rules than the others?
- A. Net dividends
- B. Screening
- C. Overdraft Notification
- D. Three-Way Reconciliation
Which doesn’t belong with the others?
- A. a system showing all receipts & disbursements from the account
- B. records showing all receipts & disbursements for each client
- C. records documenting timely notice to clients of all receipts & disbursements
- D. an approved credit card processing system
Attorney represents Tatum in the civil matter Tatum v. James. Lawyer represents James and has retained Expert Witness.
Whether Attorney can contact Expert Witness without Lawyer’s permission is likely governed by:
- A. Rule 4.2 (the no-contact rule)
- B. Rule 1.6 (information relating to the representation)
- C. The Rules of Civil Procedure
- D. The Rules of Evidence
Pops & Olive divorced many years ago. Pops is over a year in arrears on court-ordered spousal maintenance payments.
Olive asks Lawyer to represent her in a post-judgment motion to enforce the order. She cannot afford Lawyer’s fee and asks Lawyer to take the case on a contingent fee basis. Lawyer agrees. You may assume that Lawyer does not have any conflicts that prohibit Lawyer from representing Olive.
Which is most accurate?
- A. If the contingent fee agreement is reasonable & reduced to writing, it does not violate the rules.
- B. Lawyer has violated the rules. Contingent fees are banned in domestic cases.
- C. There will not be a violation unless or until Lawyer attempts to collect a contingent fee from Olive.
- D. There is no violation because it was Olive, the client, who proposed the contingent fee.
Talk about unethical!!
In 1980, the first woman to cross the finish line at the Boston Marathon did so in what would have been the fastest time in Boston history, and third-fastest marathon in recorded history. Alas, she was disqualified after it was determined that she’d not run the full course. By some reports, she jumped into the race about half a mile before the finish.