Wellness Wednesday: Judge McCaffrey

Judge McCaffrey died Saturday.  I did not know him well and feel disrespectful if this is considered as any sort of eulogy. However, Judge McCaffrey exemplified so much  of what I often blog about – including wellness – that his impact deserves mention here today.

One might think my initial exposure to Judge McCaffrey came through the law.  One would be wrong.

As I’ve mentioned, basketball was a key part of my childhood.  Not only playing it, but the stories that my parents shared.

My dad steeped me in the history of the great high school players who’d gone through Cathedral, Rice, and Burlington.  But his favorite stories were of the legendary teams & players at St. Michael’s in the late 50’s and early 60’s.

Frank McCaffrey was one of those players.  He played on the famous Purple Knight 1958 squad that advanced all the way to the national championship game in Evansville.

Many years later, I attended the Vermont high school basketball Division 1 semi-finals at UVM.  I was captivated by a player from Rutland who, to this day, is the most exciting player I’ve ever seen play in Vermont: Jim McCaffrey, Judge McCaffrey’s son.

Even later, but before I became a lawyer, I met Judge McCaffrey’s wife, Rita, through my mom.  They worked together in politics.

Yet, while I knew of the family prior to entering the law, it’s what I’ve learned of Judge McCaffrey since that spurs this post.

I’ve often blogged about wellness and helping others. Judge McCaffrey made a life of doing both.

Judge McCaffrey and his wife established Vermont’s first Dismas House, a program whose mission is to help reintegrate those convicted of crimes into the community.  He was also instrumental in planting the seed from which the state’s treatment courts first sprouted.

Dismas House.  Treatment courts.  Not only helping others, but helping others to be well.

You can read more about Judge McCaffrey’s life and work in both this tribute in The Rutland Herald, as well as in his obituary.

Some of the words & quotes are striking.

From the Herald article:

  • “A long-serving Vermont judge, McCaffrey is most recently known for helping . . .”
  • “He believed God put us on Earth to serve others and he lived that . . .”
  • “Judge Corsones said the drug court seemed like a perfect fit for McCaffrey because it was full of people who needed someone to listen. It also, Corsones said, gave McCaffrey another chance to help people.”

From his obituary:

  • “He will be remembered by many prisoners, former prisoners, and those struggling with the demon of addiction who knew he believed in their ability to recover. He gave them not only hope, but also the tools they needed to find their way to a better life.”

I’ve often urged readers to win their 3-feet of influence.  I’ve also used the starfish story several times in blog posts and at CLEs. It goes like this:

“One day, an old man was walking along a beach that was littered with thousands of starfish that had been washed ashore by the high tide. As he walked he came upon a young boy who was eagerly throwing the starfish back into the ocean, one by one.

Puzzled, the man looked at the boy and asked what he was doing. Without looking up from his task, the boy simply replied, “I’m saving these starfish, Sir”.

The old man chuckled aloud, “Son, there are thousands of starfish and only one of you. What difference can you make?”

The boy picked up a starfish, gently tossed it into the water and turning to the man, said,

“I made a difference to that one!”

Judge McCaffrey never stopped winning this 3 feet of influence. In the process, he helped return countless starfish to the water – to wellness.

Judge McCaffrey made a difference by practicing wellness and helping others achieve it.  If he is emulated even a fraction as much as he will be missed, his 3-feet of influence will continue to spread.

Let’s make sure that it does.

Francis Bernard McCaffrey Jr. Obituary

 

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Wellness Wednesday

Another week, more examples of lawyers engaging in proactive wellness!

But, first, happy birthday Jennifer Emens-Butler!  Jennifer is the VBA’s Director of Communication and Education and has done a fantastic job communicating to and educating the bar on many topics, including lawyer wellness.

Jennifer – may your birthday and the next year include the pursuit and realization of happiness!

Sunday marked the 1st Annual Heady Trotter 4-Miler.  I’ll get this out of the way right now:  yes, the race was at a brewery.  For any of you who think that running a race that’s sponsored by a brewery is the antithesis of attorney wellness, I submit that you have no idea what we’re talking about when we talk about wellness.

Anyhow, Sunday dawned grey & chilly in Stowe, but that didn’t deter lawyers from getting their wellness on.  Not only did I spot a few on the course, I tracked them down and forced them to pose for pictures in the fantastic hats that runners received as swag.

Samantha Henchen let me barge into her office for a picture with our plaques recognizing us as “founding runners.”  Next: I’ll get her law partner, and my former foe on the basketball courts, out there for a race with us.

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Kevin Lumpkin is a fellow member of the VBA’s Pro Bono Committee.  We loved our hats so much that we wore them to Judge Toor’s bench/bar meeting:

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Finally, at least Sunday’s race was flat.  The first time I ran 4 miles with Jordana Levine, it was straight up the Killington access road!

IMG_0980Why she didn’t get a hat for Igor is beyond me and likely a violation of some sort of rule!

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If you ran and I missed you and your hat, send me a pic!

Want me to get a picture of you doing something active, relaxing, non-lawyerly or, preferably, all 3?  Let me know and I’ll show up to document it for a future edition of Wellness Wednesday.

 

Monday Morning Answers #135

Welcome to Monday!

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

Honor Roll

 

Answers

Question 1

Fill in the blanks.  The same phrase goes in each blank.

When providing pro bono legal services, a substantial majority of the 50 hours should be provided to persons of limited means or certain organizations designed to serve persons of limited means.

That’s the phrase in Rule 6.1  For a definition, see Comment [3].

Question 2

This is a “what am I” question:

  • In Bar Counsel Universe, I’m often referred to as “unbundled legal services;”
  • I am a way to help provide access to legal services for those who might not be able to afford a lawyer.
  • I am specifically authorized by Rules for Family Proceedings and the Rules of Civil Procedure
  • I am specifically authorized by the Vermont Rules of Professional Conduct
  • Under the Rules of Professional Conduct, I am allowed only if (a) I am reasonable under the circumstances, and (b) the client gives informed consent.

What am I?

I ama limited representation.  See, Rule 1.2(c).

Question 3

Lawyer called me with an inquiry involving Client and  Other. I listened.  Then, I said:

“it’s ok as long as:

  1. Client gives informed consent;
  2. there’s no interference with your professional judgment or your relationship with Client; and,
  3. you don’t share any information about the representation with Other absent Client’s consent.”

What is Other’s involvement with this situation?

Other is paying Lawyer.  See, Rule 1.8(f).

Question 4

Later today, I’m speaking to the New Hampshire Association of Criminal Defense Lawyers.

For a criminal defense lawyer, which rule should spring to mind if a plea deal is conditioned upon the lawyer’s client waiving claims of ineffective assistance of counsel?  The rule on:

  • A.   Candor to the Tribunal
  • B.    Meritorious Claims & Contentions
  • C.    Client Confidences
  • D.   Conflicts of Interest

Several advisory opinions have reached the same conclusion: the criminal defense lawyer’s personal interests conflict with the client’s and, in addition, implicate the rule that prohibits a lawyer from asking a client to agree to limit the lawyer’s liability unless the client is represented by counsel.  See, Rules 1.7(a)and 1.8(h). For more, see Pennsylvania Bar Association Formal Opinion 2014-100, provided by Thomas Wilkinson, a regular member of the honor roll.

Question 5

Speaking of Vermont & New Hampshire . . .

In 2012, Tommy Lee Jones was nominated for the Academy Award for Best Supporting Actor. The nomination was for his role in Lincoln.  He played a Pennsylvania lawyer who was elected to Congress as a “Radical Republican,” chaired the Ways & Means Committee during the Civil War, and whose fierce opposition to slavery was instrumental in the passage of the 13th and 14th Amendments.

My favorite quote attributed to him? As a trial lawyer, and in response to a judge who warned that he was manifesting contempt: “Sir, I am doing my best to conceal it.”

Oh, by the way, the Pennsylvania lawyer was born and raised in Vermont, then attended college in New Hampshire.

Thaddeus Stevens.

Five for Friday #135

Welcome to Friday!

And what a Friday it is!! Go Sox!  I’d say the lock screen is working just fine.

As long-time readers know, when it comes to sports, I’m disturbingly superstitious. I truly believe that quirks like the lock screen will help Boston to win the World Series, perhaps even more than anything the players do on the field.

As I thought about the objective foolishness of the superstitions that I associate with “helping” my favorite teams, my mind wandered, scrolling through various notions of “helping.”

Then . . .  it hit me, and my mind’s equivalent of a cursor stopped dead in its tracks on this realization:  when it comes to some of the most critical help that needs to be provided, Vermont’s lawyers are the equivalent of a team that has won the World Series many times over.

I’m talking about pro bono.

Yesterday was the Vermont Bar Association’s Pro Bono Conference.  I was fortunate enough to speak during the plenary session.  As I did, I looked out over an audience of lawyers of all ages, firm sizes and areas of the state.  Most were there to learn how to help.  Others, the panelists, were there to teach how to help.

I was humbled & full of pride to be in the presence of so many lawyers so willing to give of themselves.

I was as proud to realize how far we’ve come on another topic: lawyer wellness.

The conference’s theme was serving vulnerable Vermonters. I opened my talk by reminding lawyers that, as a profession, we are a vulnerable population.  Then, at lunch, United States Bankruptcy Judge Colleen Brown tied pro bono service to wellness.

Judge Brown stated argued that helping others lends itself to senses of purpose and satisfaction that can’t help but increase wellness.  Quoting Winston Churchill, Judge Brown urged lawyers to remember that:

  • “We make a living in what we get.  But we make a life in what we give.”

I agree with Judge Brown.  In my presentation, I used this quote from Justice Sandra Day O’Connor:

  • “public service marks the difference between a business and a profession. While a business can afford to focus solely on profits, a profession cannot. It must devote itself first to the community it is responsible to serve.  I can imagine no greater duty than fulfilling this obligation. And I can imagine no greater pleasure.”

Finally, after the day’s seminars ended, Vermont’s newest attorneys took the oath of admission in a ceremony in the well of the House chamber.  In remarks delivered after administering the oath, Justice Harold Eaton urged lawyers to use their talents, skills, and position to help to provide & ensure access to justice.  In addition, he stressed the critical need for lawyers to take care of their own physical and mental well-being.

Two weeks ago, I blogged about choosing to help.  One way to help: pro bono work.  When it comes to pro bono, there never has been and never will be a better time to help than now.

Indeed, next week is the ABA’s 10th Annual national celebration of pro bono.  The focus is disaster relief.  In a message marking the occasion, ABA President Bob Carlson urges lawyers to help with disaster resiliency efforts. (Many states relax their rules on unauthorized practice to allow nonresident lawyers to provide assistance in response to natural disasters.)

Closer to home, if you want to help but don’t know how, contact Mary Ashcroft.  Mary is the VBA’s Legal Access Coordinator and can direct you to pro bono opportunities, as well as to low bono opportunities.

As I said, Vermont’s lawyers are champions when it comes to helping. And Mary Ashcroft is our MVP.

But, in sports, whenever any team wins a championship, there’s always the next season.  Similarly, as much as Vermont has done for those who need but cannot afford legal services, there’s always going to be more to do.

All in all, yesterday reminded me that law is about helping, pro bono is about helping the most vulnerable among us, and, when it comes to lawyer wellness, we need to help ourselves to ensure that we are healthy enough to help others.

Choose to help.

Onto the quiz!

Rules

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception – but one that is loosely enforced – #5 (“loosely” = “aspirational”)
  • 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

Fill in the blanks.  The same phrase goes in each blank.

When providing pro bono legal services, a substantial majority of the 50 hours should be provided to persons of _____________ or certain organizations designed to serve persons of _________________.

Question 2

This is a “what am I” question:

  • In Bar Counsel Universe, I’m often referred to as “unbundled legal services;”
  • I am a way to help provide access to legal services for those who might not be able to afford a lawyer.
  • I am specifically authorized by Rules for Family Proceedings and the Rules of Civil Procedure
  • I am specifically authorized by the Vermont Rules of Professional Conduct
  • Under the Rules of Professional Conduct, I am allowed only if (a) I am reasonable under the circumstances, and (b) the client gives informed consent.

What am I?

Question 3

Lawyer called me with an inquiry involving Client and  Other. I listened.  Then, I said:

“it’s ok as long as:

  1. Client gives informed consent;
  2. there’s no interference with your professional judgment or your relationship with Client; and,
  3. you don’t share any information about the representation with Other absent Client’s consent.”

What is Other’s involvement with this situation?

Question 4

Later today, I’m speaking to the New Hampshire Association of Criminal Defense Lawyers.

For a criminal defense lawyer, which rule should spring to mind if a plea deal is conditioned upon the lawyer’s client waiving claims of ineffective assistance of counsel?  The rule on:

  • A.   Candor to the Tribunal
  • B.    Meritorious Claims & Contentions
  • C.    Client Confidences
  • D.   Conflicts of Interest

Question 5

Speaking of Vermont & New Hampshire . . .

In 2012, Tommy Lee Jones was nominated for the Academy Award for Best Supporting Actor. The nomination was for his role in Lincoln.  He played a Pennsylvania lawyer who was elected to Congress as a “Radical Republican,” chaired the Ways & Means Committee during the Civil War, and whose fierce opposition to slavery was instrumental in the passage of the 13th and 14th Amendments.

My favorite quote attributed to him? As a trial lawyer, and in response to a judge who warned that he was manifesting contempt: “Sir, I am doing my best to conceal it.”

Oh, by the way, the Pennsylvania lawyer was born and raised in Vermont, then attended college in New Hampshire.

See the source image

 

 

 

Wellness Wednesday: Jennifer O’Connor

Welcome to Wednesday!

So far, Wellness Wednesday has featured:

This week, I’d like to introduce Jennifer O’Connor.

Jennifer is a 3L at Vermont Law School.  At VLS, Jennifer chairs the Mental Health Committee.  The Committee is doing great work.  Per Jennifer, the Committee’s

  • “mission is to lay the groundwork to strike the stigma of mental health issues.  Our goal is to provide services and resources to students to maximize their mental health throughout the academic year.”

In addition, Jennifer is a 3L representative to the Law School Committee of the Vermont Commission on the Well-Being of the Legal Profession.  Last but not least, Jennifer is the 3L rep to the VLS Fitness Advisory Board.  In that capacity, Jennifer practices what she preaches.

Ten days ago, Jennifer finished her first running race.  And it wasn’t just any old race: it was the Chicago Marathon!

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In the process, she conquered weather conditions – rain & wind – that I’m sure exacerbated the mental & physical challenges that marathoners face even in the best of weather.

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Jennifer ran Chicago on behalf of a friend who was recently diagnosed with brain cancer.  Jennifer used the marathon to raise money for the American Brain Tumor Association.

Not only does she practice wellness, Jennifer chooses to help.

For all she does for wellness in the profession, Jennifer is this week’s focus of Wellness Wednesday.

Thank you Jennifer!  You’re doing great stuff!

IMG_E3608

Don’t be an “Empty Head”

When I was a kid, my head was so big that baseball hats and football helmets wouldn’t fit.  So, one of my best friend’s brothers always called me “Mr. Potato Head.”

I didn’t love the name.

See the source image

But maybe it’s better than having a federal court reprimand me for “errors made with an empty head.”

As reported by Bloomberg’s Big Law Business, the Court of Appeals for the 7th Circuit recently did exactly that to an Illinois lawyer. The order is here.

The lawyer’s troubles began when the appendix to a brief she filed included material that should have been redacted.  Opposing counsel notified the court.  The court ordered the lawyer to file a redacted appendix.

She did.  Along with a brief that included “substantial changes . . . altering both propositions of fact and law.”

Opposing counsel asked for an extension of time to reply to the new propositions.  The court granted the extension, but ordered the lawyer to “file a new brief, identical to the original, making only the changes required to redact information in the appendix.”

Seems clear enough. So, lawyer filed a third brief.

As the appellate court noted, “yet again, changes had been made.”  The new filing “did not match either” of the first two.

The court ordered the lawyer to file a new brief that matched the original and to show cause why she should not be disciplined.

Lawyer argued that the original order to redact the appendix implied that she could change the brief that it accompanied.   Per the court, “we accept her assertion that she believed that she could do so, but errors made with an empty head are hard to excuse.”

Ouch.

The court added that “making an error once is bad; making it twice in a row . . . is unfathomable.”

But for the fact that the court reprimanded the lawyer instead of imposing a more serious sanction, this might have qualified for Was That Wrong?

Don’t be an empty head.

 

 

Court Adopts Comment on Tech Competence

The first rule in the Vermont Rules of Professional Conduct requires lawyers to provide clients with competent representation.  I’ve long argued that Rule 1.1’s duty of competence includes tech competence.

Last week, the Vermont supreme Court promulgated amendments to Rule 1.1.  The amendments add three new comments, including one that makes it clear that, in fact, the duty of competence includes tech competence.  As amended, Comment [8] now reads:

Maintaining Competence

[8] 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 technologygy, engage in continuing study and education and comply with all continuing legal education requirements to which a lawyer is subject.

As reported by Robert Ambrogi’s LawSitesBlog, Vermont becomes the 32nd state to adopt the duty of tech competence.

Take a look at the picture that Bob uses on his blog:

Image result for lawyer technology competence

No more.

Don’t confuse the meaning of the new comment. It does not require lawyers to know how to use every new gizmo, gadget, or app.  It’s far more practical than that.

For instance, do you understand the risks and benefits of using certain technologies to transmit confidential communications? Or the risks and benefits of mobile payment services? Have you thought about disabling autocomplete? Do you advise clients against being too social?

Also, don’t sleep on the other new comments. As legal outsourcing becomes more prevalent, the new comments provide helpful guidance.

The new comments take effect on December 10.

Related Posts

 

 

Monday Morning Answers #134

Welcome to Monday.

Friday’s questions and story about Emperor Norton are here.  Today’s answers follow the honor roll.

Honor Roll

Question 1

What is this the definition of?

  • an agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.

That is the definition of “informed consent.”  V.R.Pr.C. 1.0(e)

Question 2

By rule, of the following, which must a financial institution  agree to do what in order to be approved as a depository for pooled interest-bearing trust accounts?

  • A.  block ACH transfers to and from such accounts.
  • B.  notify disciplinary counsel whenever such accounts are overdrawn.  Rule 1.15B(d)
  • C.  not issue debit cards that are tied to such accounts
  • D.  All of the above.

Question 3

Lawyer represents Organization.   Can Lawyer also represent one of Organization’s directors?

  • A. Yes, subject to Rule 1.7, which is the rule on conflicts.  Rule 1.13(g)
  • B. No, the rules prohibit dual representation of organization and its directors/officers/constituents.

Question 4

Some might argue that “paltering” violates the rule(s) on:

  • A.   honesty.   
  • B.   conflicts
  • C.   safekeeping client property
  • D.  competence & diligence

Paltering is actively using the truth to deceive.  For more, see my post On Ponds, Paltering & Puffery.

Question 5

The ABA recently updated its list of the 25 Greatest Legal Movies of All-Time.  Two of the Top 3 are set in the same state.

What state?

A timely question given that we are in the midst of my favorite season of the year: college football season.

To Kill A Mockingbird (#1) and My Cousin Vinny (#3) are both set in ALABAMA.

Go Clemson!

See the source image

Five for Friday #134

Welcome to Friday!

Last week’s post drained the creative juices and “134” isn’t replenishing them.  So, I’m tempted to pull a Costanza and disband the quiz.

I'M Out George Costanza GIF

 

Yet, I trudge on.

With not much springing to mind as fodder for this week’s opening, I turned to the date & decided to look for inspiration in the events of October 12s past.

Inspiration I found!  How I’ve never heard of Joshua Abraham Norton until today is a scathing indictment of public high schools, public universities, and society at large.

Background, roundabout 1853, Norton lived in San Francisco. He had a lot of money and wanted more. At the time, rice was in short supply & high demand.  As such, prices skyrocketed.

Norton learned that a ship was due to arrive with 200,000 pounds of Peruvian rice.  Hoping to corner the market, Norton bought the entire load.

Unfortunately for him, a bunch of other ships full of rice arrived shortly thereafter.  The replenished supply not only drove down the price of rice, it drove Norton into financial ruin.

Fear not.  A little financial ruin didn’t keep Norton down.

After wrangling over the doomed rice deal all the way to the California Supreme Court, Norton got his groove back.  Bankruptcy was but his first declaration.  To wit, in September 1859:

  • “At the peremtory request of a large majority of the citizens of these United States, I, Joshua Norton, formerly of Algoa Bay, Cape of Good Hope, and now for the past nine years and ten months of San Francisco, California, declare and proclaim myself Emperor of these U.S., and in virtue of the authority thereby in me vested, do hereby order and direct the representatives of the different States of the Union to assemble in the Musical Hall of this city on the 1st day of February next, then and there to make such alterations in the existing laws of the Union as may ameliorate the evils under which the country is laboring, and thereby cause confidence to exist, both at home and abroad, in our stability and integrity.”

That’s right – he declared himself Emperor of the United States.

Then, on October 12, 1859, in one of his first acts as Emperor, Norton proclaimed:

  • It is represented to us that the universal suffrage, as now existing through the Union, is abused; that fraud and corruption prevent a fair and proper expression of the public voice; that open violation of the laws are constantly occurring, caused by mobs, parties, factions and undue influence of political sects; that the citizen has not that protection of person and property which he is entitled to by paying his pro rata of the expense of Government–in consequence of which, WE do hereby abolish Congress, and it is therefore abolished; and WE order and desire the representatives of all parties interested to appear at the Musical Hall of this city on the first of February next, and then and there take the most effective steps to remedy the evil complained of.”

That’s right.  He abolished Congress!  Clearly a visionary. Anyhow, from thereon, Emperor Norton reigned as one of San Francisco’s more colorful characters.

My favorite Emperor Norton story is this 1872 proclamation:

  • “Whoever after due and proper warning shall be heard to utter the abominable word ‘Frisco,’ which has no linguistic or other warrant, shall be deemed guilty of a High Misdemeanor, and shall pay into the Imperial Treasury as penalty the sum of twenty-five dollars.”

Why my favorite? Because I was born & raised in South Burlington. For many years, I coached at South Burlington High School.  I still live in SB.

I do not, and never have, lived in “SoBu.” Stop calling it that!

I am beyond tempted to substitute “SoBu” for “Frisco” and issue the proclamation anew.

For more on Emperor Norton, check out these posts from History.Com, SFist, and The San Francisco Chronicle. And, if you’re ever on the Bay Bridge or taking BART thru the tunnel that connects San Franscisco to Oakland, remember who proclaimed each should happen.

I don’t like failing to connect the week’s number to the story that leads into the quiz.  But, today I don’t mind.  Had “134” inspired something, I’d never have researched “today in history” and, more importantly, I’d never have learned of Emperor Norton.

Onto the quiz!

Rules

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception – but one that is loosely enforced – #5 (“loosely” = “aspirational”)
  • 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

What is this the definition of?

  • an agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.

Question 2

By rule, of the following, which must a financial institution  agree to do what in order to be approved as a depository for pooled interest-bearing trust accounts?

  • A.  block ACH transfers to and from such accounts.
  • B.  notify disciplinary counsel whenever such accounts are overdrawn.
  • C.  not issue debit cards that are tied to such accounts
  • D.  All of the above.

Question 3

Lawyer represents Organization.   Can Lawyer also represent one of Organization’s directors?

  • A. Yes, subject to Rule 1.7, which is the rule on conflicts.
  • B. No, the rules prohibit dual representation of organization and its directors/officers/constituents.

Question 4

Some might argue that “paltering” violates the rule(s) on:

  • A.   honesty
  • B.   conflicts
  • C.   safekeeping client property
  • D.  competence & diligence

Question 5

The ABA recently updated its list of the 25 Greatest Legal Movies of All-Time.  Two of the Top 3 are set in the same state.

What state?

email answers to: michael.kennedy@vermont.gov

 

 

 

Discovery: It’s not a Toy

Since 2000, I’ve reviewed approximately 4,000 disciplinary complaints.  Not many – I’d guess fewer than 20 – involved allegations of discovery violations.

Anecdotally, however, it’s common for lawyers to tell me that “so & so abuses discovery all the time.”  Or, “once I found out who was on the other side, I told my client that she wouldn’t be able to afford the discovery.”

A few thoughts: there’s a common misconception that discovery violations are the sole province of the courts, not the Professional Responsibility Program.  Trust me, I do not want to – and won’t – become the arbiter of legitimate discovery disputes.  Abusive or dilatory discovery tactics?  That’s another issue.

Take a look at Rule 3.4 of the Vermont Rules of Professional Conduct:

“A lawyer shall not . . .

  • (c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no such obligation exists;
  • (d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party.”

Of interest, the title of the rule: “Fairness to Opposing Party and Counsel.”

And isn’t that important?  Although adversarial, the process is supposed to be fair.  Not only that, the rules of the game require lawyers to play fairly.

In my view, the rules of procedure – whether civil, criminal, probate, or family – are rules of a tribunal.  Thus, a knowing violation of the obligations imposed by the procedural rules violates Rule 3.4(c).  In addition, Rule 3.4(d) speaks for itself when it comes to abusive & dilatory discovery.

Earlier today, I came across a post in the ABA Journal: Let’s trash ‘data dump’ litigation The author makes compelling arguments against not just abusive & frivolous discovery, but what I call “mindless” discovery.   By “mindless,” I mean a discovery request or response made for no other reason than to say “we asked for everything!” or “we gave them everything!”

In one sense, mindless discovery is CYA discovery.  Or, lazy discovery.  CYA & lazy aren’t good.  Indeed, there’s nothing wrong with precise requests and responses.  Odds are that they do the job, and satisfy the duties of competence & diligence, without leaving a lawyer with the need to cover anything.

In another more cynical sense, mindless discovery is less a product of absent-mindedness than it is a product of a mindset to drive up costs or to foster delay.  You know, two of the very things that give lawyers a bad name.

Give the ABA Journal post a read. It makes interesting points on (1) a trend in the federal courts towards requiring “precision” in discovery; (2) the benefits that technology can bring to the discovery process; and (3) the benefits of – oh no! – actually having an honest discussion with opposing counsel about what each side really needs.

A quote from the post jumped out at me:

“Access to justice should not be a function of who can afford the best toys, so there has to be a solution.”

My two cents on a potential solution: don’t use discovery as a toy.

See the source image