Monday Morning Answers

Welcome to Monday!

Friday’s questions are here.  Windsor Count was great!  Ran 11.2 miles, mainly on the old River Road between Woodstock and Taftsville.   Assistant Attorney General Rob McDougall tipped me off to the route.   I had the pleasure of bumping into two Vermont attorneys on the trek:  Attorney Bonnie Badgewick was also out running on the River Road, and later I saw Deputy State’s Attorney Daron Raleigh at the Harpoon BBQ fest.

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Honor Roll

  • Matthew AndersonPratt Vreeland Kennelly & White
  • Erin GilmoreRyan Smith Carbine
  • Robert Grundstein
  • Tammy Heffernan
  • Anthony IarrapinoWilscheck & Iarrapino
  • Glenn Jarrett, Jarrett & Luitjens
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Kevin LumpkinSheehey Furlong & Behm
  • Lon McClintockMcClintock Law Offices
  • Jack McCullough, Project Director, Vermont Mental Health Law Project
  • Jeff MessinaBergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Herb Ogden
  • Jim Runcie, Ouimette & Runcie
  • Kane Smart, ANR, Office of General Counsel, Enforcement & Litigation

Answers

Question 1

Lawyer called me with an inquiry.  I listened, then said “per the definition, it means that the person agrees to a proposed course of conduct after you communicate adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”

The definition of what?  (hint: 2 words)

INFORMED CONSENT – See, Rule 1.0(e)

Question 2

No matter the type of case, a rule requires a lawyer to abide by a client’s decision whether:

  • A.  to settle a case; See, Rule 1.2(a)
  • B.  to testify
  • C.  to hold funds in an account that will generate interest for the client
  • D.  All of the above

Rule 3.3(a)(3) provides guidance as to when a lawyer may refuse to present certain testimony in a civil case.

As for whether to deposit funds into an IOLTA or into an account that will generate interest for the client, the choice is not the client’s.  See, Rule 1.15B(a)(1).

Question 3

In the context of a particular rule, which is different from the others?

Lawyer’s disclosure of:

  • A.  Client’s intent to commit suicide.
  • B.  information relating to the representation of Client in order to secure legal advice about Lawyer’s compliance with the rules of professional conduct.
  • C.  information relating to the representation of Client to establish a defense to a criminal charge or civil claim made against Lawyer and based upon conduct in which Client was involved.
  • D.  Client’s intent to commit a criminal act that Lawyer reasonably believes will result in the death of, or substantial bodily harm to, someone other than Client.

This is straight from Vermont’s version of Rule 1.6.  In Vermont, scenario D is a mandatory disclosure.  A, B, C are permissive.   D’s key distinction from A is that the harm will inure to someone other than the actor.

Question 4

Lawyer called me with an inquiry. I listened, then said “well, a comment to the rule says that you should advise them that if they end up suing each other, ordinarily, the privilege doesn’t attach.”

Most likely, Lawyer called me to discuss:

  • A.   preparing a will
  • B.   defending an insured
  • C.   serving as a mediator
  • D.   representing common clients in the same matter.  See, Rule 1.7, Comment 30.  Comments 29-33 discuss “Special Considerations in Common Representation.”

Question 5

Two-part question.

I often blog about both competence and music.

Earlier this week, the ABA updated its 2007 list of the 25 Greatest Legal Movies.  Among the movies new to the list is a 2017 documentary about a lawyer who is among the most competent in the field.  Some refer to the lawyer by a nickname that derives from an iconic musician’s stage name.

In an interview following the release of the documentary, the lawyer was asked if she was uncomfortable with the nickname.  She responded “why would I feel uncomfortable? We have a lot in common.”  Indeed, both the lawyer and the musician

  • were born & raised in Brooklyn,
  • were subjected to discrimination, and
  • achieved widespread success & notoriety in their fields.
  1.  Name the lawyer:  RUTH BADER GINSBURG – aka Notorious RBG 
  2. Name the musician:  CHRISTOPHER WALLACE – aka Notorious B.I.G. (Biggie Smalls)

The documentary  by the way, is RBG

 

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Should we allow nonlawyers to own, manage, and invest in law firms?

With only a few exceptions, U.S. jurisdictions prohibit:

  • nonlawyer ownership of law firms;
  • nonlawyer management of law firms; and,
  • lawyers from sharing fees with nonlawyers.

Vermont does so through Rule 5.4.

In the lingo, “alternative business structures” are prohibited.

Last year, I posted a series of blogs related to Rule 5.4 and alternative business structures (“ABS.”)  Among them:

Here’s a summary of oft-cited arguments for & against allowing nonlawyers to own, manage, and invest in law firms:

Arguments for ABS

  • Increased Access to Legal Services
  • Enhanced Financial Flexibility for Law Firms
  • Enhanced Operational Flexibility for Law Firms
  • Improved Cost Effectiveness & Quality of Services

Arguments against ABS

  • Threat to Lawyers’ Core Values & Professional Independence
  • Will Lead to Less Pro Bono Work
  • Threatens the Attorney-Client Privilege
  • Promised Benefits Not Likely to Happen

The idea didn’t gain much traction in Vermont.  Today, the ABA Journal reports that the State Bar of California has formed a task force to study nonlawyer ownership.  Per the ABA Journal, California commissioned a report that indicated that amending the rules to allow ABS would:

  • “(1) drive down costs; (2) improve access; (3) increase predictability and transparency of legal services; (4) aid the growth of new businesses; and (5) elevate the reputation of the legal profession.”

It’s an interesting concept.  At the very least, I think it’s one worth studying, as Vermont continues to struggle with acccess to affordable legal services.

Image result for alternative business structures

Five for Friday #125

Welcome to Friday!

I often blog on issues related to lawyer wellness.  Among other issues I’ve discussed, work-life balance.  For me,  summer tends to be a time of year that helps restore my balance.

Jennifer Emens-Butler is the Vermont Bar Association’s Director of Education & Communication.  Jennifer has often written & blogged on Pursuits of Happiness.  It’s a fantastic column in which she explores the wildly varied & interesting things that lawyers do outside of the law.  Check it out.

Back to summer . . . this summer, I’m happily pursuing something new.  My goal is to complete at least one 10 mile run in each of Vermont’s 14 counties.  As of today, I’m halfway to my goal, having knocked out 10 mile runs in:

  • Chittenden
  • Lamoille
  • Franklin
  • Grand Isle
  • Washington
  • Addison
  • Caledonia

This weekend I hope to tackle Windsor County.  (Aside: maybe #ABFJ will map out a route for me.)

Anyhow, why Windsor? I’m glad you asked!

You see, in each county, I’ve made a point of post-run stops at food & beverage spots that are associated with that county.   And, this weekend, Windsor’s Harpoon Brewery is hosting its annual barbecue festival.  If you like BBQ – and I like BBQ – it’s about the best place to find BBQ between here and Flat Rock, North Carolina.  Flat Rock is, of course, home to both my dad and Hubba Hubba Smokehouse, the official BBQ joing of this blog.

Running, Harpoon, BBQ.  That’s my kind of balance!

What’s this got to do with 125? Nothing, really,

But, if summer is when you recalibrate, log off and get to it.  Because, in just over 1 week, we’ll be about 25 days from the end of August.

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 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
  • Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

Lawyer called me with an inquiry.  I listened, then said “per the definition, it means that the person agrees to a proposed course of conduct after you communicate adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”

The definition of what?  (hint: 2 words)

Question 2

No matter the type of case, a rule requires a lawyer to abide by a client’s decision whether:

  • A.  to settle a case
  • B.  to testify
  • C.  to hold funds in an account that will generate interest for the client
  • D.  All of the above

Question 3

In the context of a particular rule, which is different from the others?

Lawyer’s disclosure of:

  • A.  Client’s intent to commit suicide.
  • B.  information relating to the representation of Client in order to secure legal advice about Lawyer’s compliance with the rules of professional conduct.
  • C.  information relating to the representation of Client to establish a defense to a criminal charge or civil claim made against Lawyer and based upon conduct in which Client was involved.
  • D.  Client’s intent to commit a criminal act that Lawyer reasonably believes will result in the death of, or substantial bodily harm to, someone other than Client.

Question 4

Lawyer called me with an inquiry. I listened, then said “well, a comment to the rule says that you should advise them that if they end up suing each other, ordinarily, the privilege doesn’t attach.”

Most likely, Lawyer called me to discuss:

  • A.   preparing a will
  • B.   defending an insured
  • C.   serving as a mediator
  • D.   representing common clients in the same matter

Question 5

Two-part question.

I often blog about both competence and music.

Earlier this week, the ABA updated its 2007 list of the 25 Greatest Legal Movies.  Among the movies new to the list is a 2017 documentary about a lawyer who is among the most competent in the field.  Some refer to the lawyer by a nickname that derives from an iconic musician’s stage name.

In an interview following the release of the documentary, the lawyer was asked if she was uncomfortable with the nickname.  She responded “why would I feel uncomfortable? We have a lot in common.”  Indeed, both the lawyer and the musician

  • were born & raised in Brooklyn,
  • were subjected to discrimination, and
  • achieved widespread success & notoriety in their fields.
  1.  Name the lawyer
  2. Name the musician

the-quiz

 

 

 

 

 

 

 

 

The Vermont Bar Exam

As I’ve often blogged, the VERY FIRST RULE in the Rules of Professional Conduct requires lawyers to provide clients with competent representation. For good or bad, the profession’s initial measure of competence is the bar exam.

Today, just over 70 applicants for admission to the bar of the Vermont Supreme Court will gather in a conference room at the Burlington Hilton and sit for the Vermont administration of the Uniform Bar Exam.

Vermont adopted the Uniform Bar Exam (“UBE”) in 2016.  Many of you might not know what it entails.  So, to mark the day, here’s a revised version of a blog that I posted in February 2017.

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In February 2016, the Vermont Supreme Court adopted new Rules of Admission.  The rules went into effect on April 18, 2016.  Among the most significant changes:

  • adopting the Uniform Bar Exam
  • eliminating the so-called “clerkship”
  • requiring successful examinees to complete Vermont-specific CLE and a “mentorship”

The Uniform Bar Exam

Vermont administers the Uniform Bar Exam (“UBE”).  What’s that mean? Most notably, it means that there are no Vermont-specific essays.

For many of you, the bar exam included 6 essay questions drafted by the Board of Bar Examiners that tested Vermont law.  No more. Now, the Vermont exam is, well, uniform. That is, an examinee who sits in Vermont takes the exact same exam as an examinee who sits in one of the 25 other UBE jurisdictions.

Essays have not disappeared altogether.  It’s just that the essay questions are the same in each UBE jurisdiction.

On the morning of Day 1, examinees take the Multistate Performance Test.  The MPT is best described HERE.

On the afternoon of Day 1, examinees take the Multistate Essay Examination.  The MEE is best described HERE.

MPT and MEE questions are drafted by the National Conference of Bar Examiners. (“NCBE”).  Answers, however, are graded by members of Vermont’s Board of Bar Examiners.

In another twist for those of you who, umm, are the opposite of “new” timers, over 90% of the examinees who sit today will take the MPT and MEE via laptop.  Each examinee brings his or her own laptop.  Each examinee will have downloaded softwared that (1) stores and uploads their essay answers directly to the NCBE; and, (2) blocks access to all other software & application on the laptop. The NCBE prints the answers and sends them Andy Strauss, Vermont’s licensing attorney, for distrubution to the graders.  As a former grader, I assure you that this is a good development.

Day 2 of the exam should be familiar to all: the Multistate Bar Examination.  You probably know it better as “the multiple choice.”

Scoring has changed a bit as well.  Over the past several years, examinees received an MBE score and an essay score.  To pass, an examinee had to score at least 135 on both the MBE and the essay.  The overall total did not matter.  Thus, an examinee who scored 135 on the MBE and a 135 on the essay passed, but an examinee who scored 170 on the MBE and 134 on the essay did not.

Now, examinees receive a UBE score that is a single number.  Members of the Board of Bar Examiners grade the written portions (MPT & MEE) and report the “raw scores”to the NCBE.  The NCBE scales an applicant’ raw scores on the written portions to the applicant’s score on the multiple choice (MBE).  Then, the NCBE calculates an applicant’s UBE score that is:

  • 50% MBE
  • 30% MEE
  • 20% MPT

The NCBE reports scores back to each jurisdiction.

Each jurisdiction is allowed to set its own passing score. In the parlance, a passing score is referred to as a jurisdiction’s “cut score.”  Vermont’s cut score is 270.  If an applicant to the Vermont bar scores 270 or higher, the applicant’s application is forwarded to the Character & Fitness Committee for review.

UBE scores are portable.  In other words, a score is good in every UBE jurisdiction.  Like all UBE jurisdictions, Vermont allows examinees to apply for “admission by transferred  UBE score.”  For example, New Hampshire is a UBE jurisdiction. Odds are that someone who is taking today’s exam in New Hampshire will apply for admission in Vermont.  As long as the person scores at least a 270, the person is eligible for admission in Vermont, even having taken the exam in New Hampshire.

Important!  Achieving a 270 in another jurisdiction is NOT an automatic ticket into the Vermont bar. Applicants who score at least 270 in another UBE jurisdiction must still go through Vermont’s Character & Fitness review.

Elimination of the Clerkship

Many of you remember the “3-month clerkship.”  Some of you might remember the clerkship.  For some, it was 3 months.  For others, 6. Each was a pre-admission requirement.  Each has been eliminated.

CLE & Mentorship

The clerkship has been replaced by post-admission CLE and mentorship requirements.

An applicant is admitted to the Vermont bar upon passing the Uniform Bar Examination, passing the Multistate Professional Responsibility Examination, and being approved by the Character & Fitness Committee.  Then, the applicant has 1 year to:

  • complete 15 hours (at least 6 of which must be “live”) of continuing legal education in Vermont practice & procedure that has been approved by the Continuing Legal Education Board and certified by the Board of Bar Examiners; and,
  • complete a mentorship.

Failure to complete the CLE or mentorship results in an administrative suspension that can only be cured by completion.

The current list of approved CLE courses is HERE.  An outline of the mentorship program is HERE.

So, that’s how the bar exam works.

bar-exam

Monday Morning Answers

Monday, Monday . . . can’t trust that day.

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

Honor Roll

 

Answers

QUESTION 1

True or false.

By rule, expenses must be deducted from a recovery before a lawyer’s share of a contingent fee is calculated.

FALSE – per Rule 1.5(c), “a contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including . . . litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated.”

QUESTION 2

Attorney ran an advertisement that said Attorney “specializes in family law.”  Which is most accurate?

  • A.   the ad violates the rules.  Variants of “specialist” are not allowed.
  • B.   the ad violates the rules.  The only area of practice in which a lawyer can advertise as a specialist is Admiralty law.
  • C.   a Comment to a rule suggests that if Attorney specializes in family law, the ad does not violate the rules.
  • D.   Vermont’s rules do not ban ads that use words like “specialist” or “specializes in,” but hearing panels of the Professional Responsibility Board have consistently found such ads to be “inherently misleading.”

Perhaps this question is a matter of interpretation.  Last week, I shared my interpretation in this post:  Specializing in Anonymity.

And here’s a post from frequent Honor Roll member Professor Alberto Bernabe.

D is not correct.  No hearing panel of the Professional Responsibility Board has even ever considered the issue.  Rather, panels have held that a firm violates the rules by advertising as “the experts in . . .” enumerated areas of law, and, that it is a violation for a firm to advertise as a county’spremier criminal defense firm.”

QUESTION 3

Which does not belong with the others?

  • A.   The two matters are not the same or substantially related to each other.
  • B.   The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client.
  • C.   The representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal;
  • D.   Each affected client gives informed consent, confirmed in writing.

A is part of Rule 1.9’s analysis as to whether an attorney has a former client conflict.  The others are found in Rule 1.7(b)’s standard as to when a concurrent conflict of interest can be waived.

QUESTION 4

Lawyer opened a new pooled-interest-bearing trust account.  How much of Lawyer’s own money is Lawyer allowed to deposit into the account?

  • A.  $0
  • B.   No more than $100
  • C.   No more than $500
  • D.   An amount reasonably necessary to pay service charges or fees on the account, and only for the sole purpose of paying those charges or fees.

See, Rule 1.15(b).

Question 5

The bar exam is next week.  Best wishes to all who are taking it!  Trust me – I’m living proof that passing is not an impossible mission.

Anyhow, speaking of the bar exam and impossible missions, Mitch McDeere graduated from Harvard Law.  He took a job as an associate at Bendini, Lambert & Locke in Memphis and started working before he took the bar exam.  Others with whom he worked made it very clear to Mitch that no associate at Bendini, Lambert & Locke had ever failed the bar exam.

Later in the movie, we learned that some of Mitch’s co-workers had little regard for the ethics rules.

Name the movie.

The Firm, which, of course, was adapted from John Grisham’s novel of the same name.

Image result for The Firm movie

 

Five for Friday #124

Welcome to Friday!

It’s been a while since the last quiz.  Summer has that effect on me.  Anyhow, when we last met, Scott Mapes predicted that either France, Croatia, Belgium, or Spain would win the World Cup.

Talk about competence!

In case you missed it, France, Croatia and Belgium advanced to the semi-finals, with France defeating Croatia in last weekend’s final.  Basically, Scott did Meatloaf one better: 3 out of 4 ain’t bad!

As for this weekend, for me, it’s all about the VBA.

Oh no, my friends, don’t get me wrong – I’m not working or doing anything law-related this weekend.

No, no, no.

I’m talking about the other VBA – the Vermont Brewers Association!  Later today, the Vermont Brewers Festival opens in Waterfront Park.  I highly recommend it!

Vermont Brewers Association Logo

#vtbrewfest  #summerz2short

Onto the quiz!

RULES

  • 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 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
  • Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

 

QUESTION 1

True or false.

By rule, expenses must be deducted from a recovery before a lawyer’s share of a contingent fee is calculated.

QUESTION 2

Attorney ran an advertisement that said Attorney “specializes in family law.”  Which is most accurate?

  • A.   the ad violates the rules.  Variants of “specialist” are not allowed.
  • B.   the ad violates the rules.  The only area of practice in which a lawyer can advertise as a specialist is Admiralty law.
  • C.   a Comment to a rule suggests that if Attorney specializes in family law, the ad does not violate the rules.
  • D.   Vermont’s rules do not ban ads that use words like “specialist” or “specializes in,” but hearing panels of the Professional Responsibility Board have consistently found such ads to be “inherently misleading.”

QUESTION 3

Which does not belong with the others?

  • A.   The two matters are not the same or substantially related to each other.
  • B.   The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client.
  • C.   The representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal;
  • D.   Each affected client gives informed consent, confirmed in writing.

QUESTION 4

Lawyer opened a new pooled-interest-bearing trust account.  How much of Lawyer’s own money is Lawyer allowed to deposit into the account?

  • A.  $0
  • B.   No more than $100
  • C.   No more than $500
  • D.   An amount reasonably necessary to pay service charges or fees on the account, and only for the sole purpose of paying those charges or fees.

Question 5

The bar exam is next week.  Best wishes to all who are taking it!  Trust me – I’m living proof that passing is not an impossible mission.

Anyhow, speaking of the bar exam and impossible missions, Mitch McDeere graduated from Harvard Law.  He took a job as an associate at Bendini, Lambert & Locke in Memphis and started working before he took the bar exam.  Others with whom he worked made it very clear to Mitch that no associate at Bendini, Lambert & Locke had ever failed the bar exam.

Later in the movie, we learned that some of Mitch’s co-workers had little regard for the ethics rules.

Name the movie.

 

 

Make Wellness a Habit

I’ve blogged often on issues related to lawyer wellness.  Most of my posts have focused on lawyer impairment.

A related issue is mindfulness. Or, as I’ve blogged, workplace happiness.  In short, does your firm or office foster a positive environment in which people are happy to work?  Or, as James Goodnow wrote at Above The Law, is your firm or office Blinded By the Benjamins?

Earlier this year, the Vermont Supreme Court took a step towards fostering a more positive environment for Vermont’s legal profession when it created the Commission on the Well-Being of the Legal Profession.  The Commission met last week.  Members shared updates from their various committees. On the issue of mindfulness, I was excited and encouraged by the report from the Legal Employers Committee.

Laura Wilson & Ian Carleton chair the committee.  I’m not going to delve into the details of their update.  Suffice to say, it sounds like their committee is doing a fantastic job looking at steps that legal employers can take to make workplaces healthier.

I’ve been as encouraged by the buy-in I’ve heard from lawyers & firms in my travels around the state.  A few years ago, nobody wanted to talk about impairment, wellness, or mindfulness.  Now, not only are legal employers talking the talk, they’re starting to walk the walk.  Which brings me to the point of this post.

If your workplace is looking at ways to incorporate wellness & mindfulness into its culture, remember this: it’s marathon, not a sprint.  What do I mean by that?  Well, let me turn to a different sport.

As most of you know, I used to coach high school basketball.  Any coach will tell you this: whatever you do every day in practice, that’s probably what your team will be good at doing.  If you shoot a lot, your team will probably shoot well.  If you work a lot on plays against a zone defense, your team will probably execute its zone offense well.  If you do a little of a lot, but not a lot of any one particular thing, your team will probably be okay at a lot, but not very good at much of anything.

The same goes for incorporating wellness and mindfulness into your workplace.  If you want wellness and mindfulness to be part of your workplace culture, you have to practice them.  Not just talk about wellness for 50 minutes at the firm retreat.  Not just mention mindfulness at every other staff meeting.  But do them.

Every. Single. Day.

And then again the next day.

Over and over.

For wellness & mindfulness to become part of your workplace culture, you have to make them habits.  It’s that simple.  As they say, practice makes perfect.

Jeena Cho is one of the country’s leading voices on wellness and mindfulness in the legal profession.  In May, the ABA Journal ran Jeena’s post 4 strategies for effectively implementing a mindfulness program.  Give it a read.

Because it so resonates with me, I’m pasting in the third of the four strategies that Jeena recommends:

FOR LASTING CHANGE, THINK LONG TERM

As with buying a gym membership—you actually have to go to the gym and work out regularly to see benefits—mindfulness training has to be ongoing.

Anne Brafford, author of Positive Professionals: Creating High-Performing Profitable Firms Through the Science of Engagement, says, “To be effective, programs designed to build complex people skills like mindfulness can’t end with a single training session. This train-and-go approach is popular among organizations—with the result that billions of dollars are wasted annually because trainees end up using only about 10 percent of what they learn.”

For a mindfulness training to stick, Brafford says, “organizations will want to provide ongoing support for learning. This includes, for example, providing opportunities or encouragement to apply the new skills, reinforcement learning with feedback and reminders about its relevance and importance, supervisor and peer support, and opportunities for ongoing development.”

Jeena and Anne are right.

Make wellness a habit.

Image result for practice makes perfect

 

 

 

Ethics Inquiries of Bar Counsel

Last summer I posted this outline of the Vermont Professional Responsibility Program.  Today I’d like to spend a few moments outlining an aspect of the program: ethics inquiries of bar counsel.

Two rules apply, with each appearing in Supreme Court Administrative Order 9.  The first is A.O. 9, Rule 3(B).  It states that bar counsel “shall . . respond to inquiries from lawyers regarding ethics and law practice.” The second is A.O. 9, Rule 9.  It’s entitled Prevention and Education and says:

  • “Inquiries from attorneys regarding ethical issues or practice questions shall be referred to bar counsel, who may provide referrals, educational materials, preventive advice and information to assist attorneys to achieve and maintain high standards of professional responsibility.”

In short, an “inquiry” is me trying to help you navigate a particular situation.

The Judiciary’s fiscal year ended on June 30.  In FY18, I received and responded to 1,263 inquiries.  The Court converted the position of bar counsel to full-time in June 2012.  That’s when I switched from disciplinary counsel to bar counsel.  Since then, inquiries have risen each year.

Fiscal Year Inquiries
2018 1,263
2017 1,109
2016 1,100
2015 827
2014 750
2013 627

While the topic areas span the gamut of the Rules of Professional Conduct, questions about conflicts predominate.   In FY18, 34% of the inquiries I received involved conflicts of interest.  That’s consistent with prior years.

When responding to an inquiry, I don’t tell someone what to do or what not to do.  That’s the lawyer’s choice. I view my role as providing guidance: pointing out the relevant rule, hearing panel decision, Supreme Court opinion, or advisory ethics opinion. Also, having learned the hard way as a younger bar counsel, I NEVER respond “yes, what you just said that other attorney did or did not do is unethical.”  Rather, I respond “I’d need to hear both sides, but the relevant rule/decision/opinion is ________.”

Inquiries are confidential.  I cannot share the information with anyone, including disciplinary counsel.  Most are resolved in a day or two.

Finally, while both Rule 3 and Rule 9 refer to inquiries from lawyers, I respond to inquiries from non-lawyers as well.  Of the 1,263 I received last year, here’s who made them:

Source Inquiries
Lawyer 1,049
Non Lawyer 170
Media 15
Law Student 14
Judge 7
Law Professor 6
Legislator 2

So, that’s the inquiry process.  Feel free to contact me anytime.

Image result for lucy free advice

 

 

Specializing in Anonymity

Our nation’s long national nightmare is over: I’ve returned from my blogging hiatus.

Welcome to Monday!  I hope your summer is going well.  And, for those of you who followed the World Cup, let’s not forget that Scott Mapes predicted 3 of the final four.  Now that’s competence!

Today I’m going to discuss an oft misunderstood rule: Rule 7.4.

By way of background, last week, someone sent me copies of several pages from the “Lawyers” section of the Yellow Pages.  I’m not going to tell you the geographic area.  The sender chose to remain anonymous: no return address, no cover letter, no sticky note with a name.  The sender used a highlighter to call my attention to a few ads that indicate that various lawyer “specialize in” certain areas of law.

I assume the sender thinks the highlighted ads violate the rules.  Absent a cover letter, I don’t know.

I’m not a fan of anonymous complaints.  If you think another lawyer’s ad violates the rules, make a complaint or an inquiry and we’ll let you know.

Back to Rule 7.4.  The rule does not ban any & all use of “specializes” or its variants.  Here’s what the relevant sub-part says:

  • “(d) a lawyer shall not state of imply that a lawyer is certified as a specialist in a particular field of law, unless:
    • (1) the lawyer has been certified as a specialist by a named organization, provided that the communication clearly states that there is no procedure in Vermont for approving certifying organizations, unless the named organization has been accredited by the American Bar Association to certify lawyers as specialists in a particular field of law; and
    • (2) the name of the certifying organization is clearly identified in the communication.”

Comment [1] is instructive.  Per the Comment,

  • “[a] lawyer is generally permitted to state that the lawyer is a ‘specialist,’ practices a ‘speciality,’ or ‘specializes in’ particular fields of law, but such communications are subject to the ‘false and misleading’ standard applied in Rule 7.1 to communications concerning a lawyer’s services.”

In other words, if it’s true, Vermont’s rule appears to allow a lawyer to advertise that the lawyer specializes in a particular area of law.

Image result for saul goodman advertisement

 

Monday Morning Answers: #123

Welcome to Monday!

If you’re reading this, your WiFi didn’t melt!  Small victories are still victories!

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

Honor Roll

Answers

Question 1

The phrase “in the same or a substantially related matter” is most often used in connection with a rule on:

  • A.  conflicts.  See, Rule 1.9(a).
  • B.  advertising
  • C.  trust accounting
  • D.  sharing fees with a lawyer in another firm

Question 2

Which doesn’t belong with the others?

  • A.  Don’t state or imply that you’re disinterested
  • B.  Don’t contact her unless the clerk has certified that her term is complete
  • C.  If she misunderstands your role, correct the misunderstanding.
  • D.  If her interests are likely to conflict with your client’s, don’t give her any legal advice other than the advice to secure counsel.

B is part of Rule 3.5 and refers to contacting jurors.  A, B, & D are part of Rule 4.3, the rule that applies when a lawyer deals with an unrepresented person.  

Question 3

Client sued Lawyer for malpractice.  Lawyer offered to settle the claim.  The offer included (1) a monetary payment to Client; and (2) an agreement not to handle any cases of the type Lawyer handled for Client.

True or False.

The settlement offer violates the Rules of Professional Conduct.

True: see, Rule 5.6(b).

Question 4

Yesterday, Lawyer received a letter indicating that Disciplinary Counsel had selected Lawyer for a “compliance exam.”   Compliance with what?

  • A.   the CLE requirements
  • B.   the trust accounting rules.  See, Rule 1.15A(b)
  • C.  the rule on malpractice insurance
  • D.  the rule that requires reasonable precautions against unauthorized access to electronically stored information

Question 5

Speaking of lawyers and soccer, who doesn’t belong with the others?

  • A. Vincent Gambini
  • B.  Jerry Callo
  • C.  Jerry Gallo
  • D.  Cristiano Ronaldo

Ronaldo is one of the best soccer players in the world.  He’s the star of the Portuguese national team.  On Saturday, Portugal lost to Uruguay in the round of 16 in the World Cup.  The other 3 – Gambini, Callo, and Gallo – are characters or people mentioned in My Cousin Vinny.    

You know, Jerry Gallo, the big attorney.

“Jerry Gallo’s dead!”

Kudos to Penny Benelli for getting the “most” correct answer!

See the source image