Five for Friday #140

Quick: without thinking, name a song by The Eagles.

Now, hold that thought.

I don’t particularly enjoy writing about music.  Nonetheless, when I do, I receive more feedback than on virtually any other topic that I cover.  The #fiveforfriday posts Beatles v. Stones and T. Petty & T. Swift are the most read in the history of the quiz.  The tribute to Prince is in the top 5.

Even this month’s ode to M.C. Hammer, Don’t Post Thatgenerated significantly more response than most of my posts. Albeit with a complaint that my musical references are too dated.

What can I say?  I AM dated!

Still, for younger readers, when it comes to posting client confidences online, think of Maroon 5 Girls Like You, ft. Cardi B.  In particular, Cardi B’s:

“red light, red light, stop!”

Anyhow, since I can’t think of anything related to “140,” I’m resorting to writing about something that happened on a November 30 of yesteryear.  Specifically, a musical event that I’ll try to relate to legal ethics.

Michael Jackson’s album Thriller was released 36 years ago today.  A few weeks ago, I heard a story about the best-selling album of all-time.

It’s not Thriller.

For whatever reason, that surprised me. I’m not a big fan of Michael Jackson’s music, but like most of us, I’m generally aware of a lot of his songs.  I just kind of assumed that Thriller was the top-selling album ever.

Nope.  Measured by U.S. sales, The Eagles hold the top spot.  Earlier this year, Their Greatest Hits (1971- 1975) overtook Thriller.

See the source image

Now, back to my original question.  Name a song by The Eagles.

As I suspect you said “red hammer,” I’m willing to bet you picked “Hotel California.”

The Eagles released Hotel California after they released Their Greatest Hits (1971-1975).  Maybe it’s just me, but I find that mind-boggling. The song that, arguably, is the band’s greatest is not on the band’s album that happens to be the best-selling of all-time.

Take a look at the track list: the songs on Their Greatest Hits (1971-1975) are solid songs and, obviously, quite popular.  But, I’d argue that none is Hotel California.  And maybe that says something about competence.

I often preach Rule 1.1 and a lawyer’s duty of competence.  Remember: the rule doesn’t require you to be a superstar. It requires you to be competent.  Over and over again.  For each and every client.

Consistent competence.

Early in their career, The Eagles were competent, over and over again.  The result: before the band did its best work, it did a lot of good work that, when compiled, went on to be the best-selling album of all-time. To me, the whole was greater than the sum of its parts.

So, as lawyers, maybe our goal shouldn’t be the legal equivalent of creating Hotel California. Rather, maybe our goal should be consistent competence.  We should strive to be competent over & over & over again.  Knowing that consistent competence might have a greater impact than being a rock star in any single case.

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

At a CLE, you wake from a brief nap to hear me using the terms “concurrent,” “former,” and “prospective.”  I’m talking about the:

  • A.  rules on conflicts of interest
  • B.  trust accounting rules
  • C.  advertising rules
  • D.  rule on client confidences insofar as it relates to encrypting e-mail

Question 2

By rule, the interest on your pooled interest-bearing trust account goes to:

  • A.  Clients
  • B.  The Vermont Bar Foundation
  • C.  A or B
  • D.  B, but only with client consent

Question 3

“Impliedly authorized to carry out the representation” is an exception to the rule that prohibits:

  • A.   Conflicts of interest
  • B.   Commingling of funds
  • C.    Contacting a represented person without the permission of the person’s lawyer
  • D.   Disclosing information relating to the representation of the client

Question 4

True or false.

An associate does not violate the rules if the associate acts in accordance with a partner’s reasonable resolution of an arguable question of a professional duty, even if the partner’s resolution turns out to be wrong.

Question 5

Sydney Carton was a brilliant lawyer who struggled with alcohol & depression.  His most famous client was Darnay.

While not explicitly clear from the historical record, I’m pretty sure that Darnay filed a disciplinary complaint against Carton.   In it, he alleged that Carton failed to provide him with competent & diligent representation in a criminal trial that resulted in a death sentence for Darnay.

The complaint became moot when Carton, who bore an uncanny resemblance to his client, switched places with Darnay just before the execution.  Carton’s final words before the guillotine fell:

  • “It is a far, far better thing that I do, than I have ever done; it is a far, far better rest that I go to than I have ever known.”

Name the book.

Bonus: name the lawyer who “mentored” Carton.

On a serious note, if you know a lawyer who, like Carton, is dealing with substance abuse or mental health issues, please read this.

 

 

 

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Wellness Wednesday: You’re not an impostor.

Regular readers know that I find it difficult to embrace winter.  As a card-carrying member of No Shoes Nation, the season does little for my “wellness.”

See the source image

Indeed, my favorite winter was 2016.  It’s the year I ran the Surf City Marathon, collected this swag

Surf City.jpg

then spent a few days with this view.

San Diego

Last weekend, however, I decided to give winter a try.  So, on a fantastically sunny Saturday, I ventured to Trapp Family Lodge for my first attempt at cross-country skiing in nearly 30 years.

Let’s leave it at this: it’ll be quite a while until I’m mistaken for a competent skier.

I ran into Liz & Eric Miller in the parking lot. I should have hired them on the spot.  That way, my follies that followed would forever remain confidential & privileged.

Which gets me to the point of today’s post.

On the trails, I’m an impostor.  In the law, you are not.

Attorney Gabe MacConnaill took his own life in October.  He was married to Joanna Litt.  A few weeks ago, I blogged about Joanna’s heartbreaking letter in response Gabe’s suicide.  Joanna’s letter mentioned that her husband:

  • “felt like a phony who had everyone fooled about his abilities as a lawyer and thought after this case was over, he was going to be fired—despite having won honors for his work.”

There’s a name for what Gabe was feeling: impostor syndrome.

Last week, the ABA Journal posted Neha’s Sampat’s response to Joanna’s letter.  In it, Attorney Sampat challenged lawyers, firms and the profession to address the syndrome, referring to it as a “hidden source of attorney distress.”  Give it a read.

Some of the saddest cases I prosecuted as disciplinary counsel involved lawyers whose practices had cratered.  More often than not, those lawyers seemed, in a sense, relieved.  The gig was finally up.  They no longer had to pretend to be someone who, in their minds, they were not.

We need to discourage that mindset.

Summary judgment motions get denied.  Hearings don’t go exactly as planned.  People  – a group that includes the subset known as “lawyers” – make mistakes.

These are not signs that you don’t belong.

I’m no expert on how to address impostor syndrome.  Some resources”

To me, it comes down to this: be kind to yourself.  Nobody is perfect.  And not only that, we don’t expect you to be.

Keep on keeping on.  Sometimes the trail to this view includes stumbles along the way.

Ski 3

 

#GivingTuesday & Pro Bono

Today is #GivingTuesday.  It follows #CyberMonday, #SmallBusinessSaturday, and #BlackFriday.  In this day & age, how Sunday escaped unnamed is beyond me.

Anyhow, for lawyers, pro bono is a way to give.  So, I thought I’d share some old posts and links to pro bono opportunities.

Remember – you don’t have to solve the access to legal services problem on your own.  Whatever you can give, it makes a difference.

“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!”

See the source image

 

Monday Morning Answers

Monday, Monday.  Can’t trust that day.

I hope everyone enjoyed the long weekend.  Friday’s questions are here  The answers follow today’s Honor Roll.

Honor Roll

Answers

Question 1

Topic: Leftovers.

Generally, the rules require an attorney to know how much money is in trust and to whom it belongs.  There are times, however, when there’s money leftover in trust and it’s not clear whose it is.

In Vermont, there’s an advisory ethics opinion that suggests that when the true owner of funds held in trust cannot be identified, a lawyer should:

  • A.    self-report to disciplinary counsel
  • B.    comply with the Unclaimed Property Act
  • C.    keep the funds in trust until the lawyer determines who owns them
  • D.    A, B, or C

Question 2

I often blog about a lawyer’s duty of competence.   Alan Page was more than just “competent” in two different professions, one of which was the law.

In the first, after graduating from Notre Dame, Page gained renown for his work as a “Purple People Eater.”  Several years before leaving that profession, Page earned a J.D. from the University of Minnesota Law School.  Then, upon leaving the first profession, Page entered the law, eventually serving as an associate justice on the Minnesota Supreme Court from 1993-2015.

Before excelling in the law, what was the other profession in which Page excelled?

Alan Page 2009.jpg

 

Prior to joining the Minnesota Supreme Court, Justice Page had an outstanding career as a defensive lineman for the Minnesota Vikings. He’s in the pro football Hall of Fame.  The Vikings defensive line was known as the “purple people eaters.”

See the source image

 

Question 3

Topic: Attorney advertising.  Attorney advertising as “specialist”.  Disclosing Client Identities.

Imagine that Lawyer has a website.  The website states that Lawyer specializes in a particular area of law.  The site includes a list of clients for whom Lawyer achieved “the ultimate success.”  The list includes the following:

  • 2018: Peas & Carrots
  • 2017:  Drumstick & Wishbone
  • 2016: Tater & Tot
  • 2015:  Abe & Honest
  • 2014:  Cheese & Mac
  • 2013: Popcorn & Caramel
  • 2012: Cobbler & Gobbler
  • 2011: Liberty & Peace

In fact, the list goes all the way back to:

  • 1987:  Charlie

While Lawyer and website are imaginary, the “clients” I’ve listed are real.  And the dates correspond to the years in which those clients achieved what might arguably & truthfully be called the “ultimate Thanksgiving success.”  What does Imaginary Lawyer specialize in?

Our imaginary lawyer specializes in presidential pardons for turkeys.  The names are of those turkeys who’ve been pardoned over the years.

Question 4

Topic: a song from real-life inspires an imaginary lawyer-client relationship

One Thanksgiving, Arlo and his friend Rick agreed to take some trash to the dump as a favor to some friends who had converted a church into a restaurant.  The landfill was closed for the holiday, so they tossed the trash off a cliff.  The next day, they were arrested for littering.  Attorney was assigned to represent them.

Presumably, competent representation will require Attorney to interview the restaurant owner.

What’s her first name?

Alice, from Arlo Guthrie’s Alice’s Restaurant.

Question 5

Topic: Famous Events

Edmund Gwenn won the Academy Award for Best Supporting Actor for his portrayal of  Kris Kringle in Miracle on 34th Street.  In the movie, Kringle was involved in a legal proceeding that implicated many of the Rules of Professional Conduct, as well as several of the canons of judicial ethics.

The movie began with Kringle becoming upset that Santa is intoxicated at a particular event.

What’s the event?

The Macy’s Thanksgiving Day Parade.

See the source image

Five for Friday #139: Thanksgiving

Happy Thanksgiving!

Here’s my attempt to combine the law, legal ethics, and pop culture into a Thanksgiving-themed #fiveforfriday quiz.

Rules

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

Topic: Leftovers.

Generally, the rules require an attorney to know how much money is in trust and to whom it belongs.  There are times, however, when there’s money leftover in trust and it’s not clear whose it is.

In Vermont, there’s an advisory ethics opinion that suggests that when the true owner of funds held in trust cannot be identified, a lawyer should:

  • A.    self-report to disciplinary counsel
  • B.    comply with the Unclaimed Property Act
  • C.    keep the funds in trust until the lawyer determines who owns them
  • D.    A, B, or C

Question 2

Topic: Alan PageCompetence . . . and something that many associate with Thanksgiving.

I often blog about a lawyer’s duty of competence.   Alan Page was more than just “competent” in two different professions, one of which was the law.

In the first, after graduating from Notre Dame, Page gained renown for his work as a “Purple People Eater.”  Several years before leaving that profession, Page earned a J.D. from the University of Minnesota Law School.  Then, upon leaving the first profession, Page entered the law, eventually serving as an associate justice on the Minnesota Supreme Court from 1993-2015.

Before excelling in the law, what was the other profession in which Page excelled?

Alan Page 2009.jpg

Question 3

Topic: Attorney advertising.  Attorney advertising as “specialist”.  Disclosing Client Identities.

Imagine that Lawyer has a website.  The website states that Lawyer specializes in a particular area of law.  The site includes a list of clients for whom Lawyer achieved “the ultimate success.”  The list includes the following:

  • 2018: Peas & Carrots
  • 2017:  Drumstick & Wishbone
  • 2016: Tater & Tot
  • 2015:  Abe & Honest
  • 2014:  Cheese & Mac
  • 2013: Popcorn & Caramel
  • 2012: Cobbler & Gobbler
  • 2011: Liberty & Peace

In fact, the list goes all the way back to:

  • 1987:  Charlie

While Lawyer and website are imaginary, the “clients” I’ve listed are real.  And the dates correspond to the years in which those clients acheived what might arguably & truthfully be called the “ultimate Thanksgiving success.”  What does Imaginary Lawyer specialize in?

Question 4

Topic: a song from real-life inspires an imaginary lawyer-client relationship

One Thanksgiving, Arlo and his friend Rick agreed to take some trash to the dump as a favor to some friends who had converted a church into a restaurant.  The landfill was closed for the holiday, so they tossed the trash off a cliff.  The next day, they were arrested for littering.  Attorney was assigned to represent them.

Presumably, competent representation will require Attorney to interview the restaurant owner.

What’s her first name?

Question 5

Topic: Famous Events

Edmund Gwenn won the Academy Award for Best Supporting Actor for his portrayal of  Kris Kringle in Miracle on 34th Street.  In the movie, Kringle was involved in a legal proceeding that implicated many of the Rules of Professional Conduct, as well as several of the canons of judicial ethics.

The movie began with Kringle becoming upset that Santa is intoxicated at a particular event.

What’s the event?

 

 

 

Wellness Wednesday: Meet Heather Moreau

I’d like to introduce you to Heather Moreau.

Heather Moreau

Heather is the firm manager and a senior paralegal at Maley and Maley.  She’s also a legal professional who understands the importance of work-life balance and makes wellness a habit. For that, I’m focusing on Heather in this week’s installment of Wellness Wednesday!

I don’t remember how I met Heather, but there’s one thing in particular that I’ll never forget about her.

A few years ago, Heather decided to run a marathon.  She dedicated herself to the requisite training and was ready to accept the challenge.  Unfortunately, the weather didn’t cooperate.  You see, for her first marathon, Heather had chosen the 2016 Vermont City Marathon.  That was the year that extreme heat forced organizers to halt the race. Heather was among those who were forced to leave the course without finishing.

Knowing how much effort and sacrifice goes into training for a marathon, I couldn’t imagine her disappointment. It’s Heather’s response to that disappointment that I’ll always remember about her.  As you’ll see, she didn’t let it beat her.

Last Saturday, Heather completed the Route 66 Half Marathon in Tulsa.  It’s part of her #halfcrazy50 goal.  On her way home, she was kind enough to answer some questions for today’s post.  Here are excerpts from our exchange.

MK:   Since I’ve known you, I’ve followed your running hobby. What stands out to me the most is how you bounced back from what must have been a horribly disappointing experience in your first marathon – the year they stopped it because of the heat.  Talk to me about your path since then, mainly how you went from that to #halfcrazy50.  Also what is “ #halfcrazy50” ?

Heather:  Ahhhh, the race that “wasn’t to be” for me was the Vermont City Marathon in May of 2016.  I had been doing half marathons up until that point and had a handful under my belt.  My daughter found my motivation sweet spot for attempting my first half marathon back in 2013, when I mentioned that I might like to sign up for the Disney Wine & Dine Half.  She was a high school junior and at that time in her life, everyone was “old.”  She didn’t hesitate to express that I was probably “too old” to start running, especially for 13.1 miles.  That’s all it took for me to train hard enough to beat my 3-sport high school athlete daughter in the Disney half and inspire a new lifelong love for running.  About three years later, Karen Allen* very convincingly encouraged me to step up my game and sign up for a full marathon.   Of course, after months of training for the 26.2 miles, the Vermont City Marathon  course closed because of heat – just as I was passing through mile 16.

Not having met the goal, I signed up for another full marathon.  It was about a year later in Newport, Rhode Island.  I found that the time commitment to full marathon training, the second time around, changed my love for running. In the weeks before the race, I realized I was only half trained.  Switching my registration to a half marathon felt like smart choice, yet I felt like I had failed somehow.  I told myself that I had to keep training and keep running.  A few weeks after Rhode Island, I signed up for another half. This time the race was in Austin, Texas where my daughter lives (what better excuse for a visit?).  Running Newport’s ocean course was an amazing experience and Austin in January of this year was a personal record.  The goal of completing a half marathon in every state, which combines my love for running with my love for travel was born during that Austin race. The hashtag #halfcrazy50 was also born.

  • Karen Allen is the same Karen Allen who is a regular member of this blog’s #fiveforfriday Honor Roll in Legal Ethics!

MK:  Every state! That’s awesome! I have the same goal for marathons, but I’m only up to 8!  So, this past weekend, you completed the Route 66 Half.  From your Facebook posts, it looks like it was a fantastically fun race.  Tell us about not only the race, but the earlier trip that you and your daughter took on Route 66.  In my mind, it’s a trip that is exactly what we’re talking about when we talk about wellness.

Heather: I’m all about working hard and then playing hard.  Quality time with my daughter is at the top of my priority list.  There is no one that can make me belly laugh like she can. A few years ago, we did a 15-day mother-daughter road trip on the Pacific Coast Highway and at the end of the trip, she asked me what was on deck for our next trip.  When your adult daughter wants to “hang” with Mom, there are no second thoughts.  After two years of planning, last July we ventured out for 18 days of experiencing the approximately 2,500 miles from Chicago to Santa Monica along Route 66. We biked along Lake Michigan in Chicago, did a running tour under the Arch in St. Louis, and hiked in three national parks – Petrified Forest, Grand Canyon and Joshua Tree.  I can tell you that there’s nothing like listening to the Joshua Tree U2 soundtrack while trekking through the National Park. Why do I run?  Because saying “I’m in” has to trump “I can’t” when she asks, “Mom can you… “

“Fantastically fun” is a perfect description for the Route 66 race last Sunday.  I signed up for this Tulsa race seeking the chance to set foot along the Mother Road again.  The race was billed as a “party race” and sounded different than what I had done previously.  I had no idea what I was in for during the course.  At mile 2.5 I was offered my first beer.  I knew at that moment it was decision time:  do I run this race for time like I’ve always done or do I throw caution to the wind and accept the beer?  I opted for a little fun and took the beer.  Then at mile 6, there was a table of red and blue Jell-O shots.  Mile 7 held fireball.  Mile 8 tempted me with a mimosa.  Mile 9 presented a Tiki Bar.  And the list went on.  Sure there was a point when I questioned if sipping a mimosa while running a half was completely crazy, but (as you can imagine) there was also a point when I just didn’t care and was living in the moment of each mile.  The Route 66 half was one of the best “cocktail tours” I’ve ever been part of and as I crossed the finishing line, I was disappointed the race was over. Trust me, when I say – I’m always glad a race is over.  Regrets? Not one.  The sense of accomplishment was there.  I survived 13.1 miles and a tequila shot to boot.

Image may contain: Heather Moreau, smiling, standing

MK:  You are inspiring me to “let go!” I can remember being when UVM students used to pass out small cups of beer at Mile 25 in VCM. I was too “into my time” to stop and enjoy the moment.  Next time I get the chance, I will!  Ok, so it looks like you’re up to 13 half marathons.  What’s next on the list?

Heather:  Type A people always have a plan, so yes, I’m signed up for race number 14.  Three of my best friends are heading down to Delaware with me in the spring to run in the Coastal Delaware Running Festival in Rehoboth Beach.  Running is a perfect excuse for a girls’ weekend.  Rock ‘n’ Roll Nashville and Zion National Park halves are on my bucket list, but this year I’ll likely end up going to places I would not otherwise go and that’s among the best parts of this goal.

MK: I agree! Running has given me an excuse to travel to places I’d not otherwise visit. Now, speaking of places I’d not otherwise visit, if I had my choice, I’d never see the inside of a health club.  Running is my “wellness” activity, but I prefer it to be outside.  The past week has been a challenge.  And I can’t stand the treadmill! How do you stick with it in the dark & the cold?

Heather: I can’t stand the treadmill either and the alternative experience means I’ve had my water bottle freeze and my phone die from the cold on long winter runs.  It’s tough. There is no way around it.  I have a map of the 50 states in my house that holds spaces where I can insert photos of the races I’ve completed.  Near the map is a hand painted sign that I bought after a race in New Orleans.  It says: “Live More, Worry Less.”  I know that my #halfcrazy50 goal is not really about running in 50 different cities.  It’s really about staying healthy, meeting new people, experiencing unique places, and fully living life.  It’s pretty strong motivation.

MK: “Live more, worry less, stay healthy.” It’s like you’ve read my blog! It strikes me that your firm does a great job incorporating wellness. For example: time off for your trip with your daughter; you and Carie run;  Chris plays basketball and swims.  Are those nonlawyerly things an important part of the firm culture/attitude?

Heather: Working very hard goes without saying, but our firm culture provides the flexibility to fit in what’s important outside of work.  Beyond what you said, John works out everyday during the lunch hour.  Come to our office at 11:50 and you can bet you will see him leaving with his gym bag.  Lizzie (our legal assistant), Carie and I make it a point to run together.  Trudging up the College Street hill is something that is better done in a group.  I’d also bet on us to compete in the Vermont City Marathon relay again this year. Last year we competed as the “Maley and Maley – In It For the Long Run” team and Carie made sure I had the last leg so that I could finally run through the VCM finish line.  So much team building happens when you are out sweating miles together.

It’s also part of our culture to celebrate individual and firm successes.  The whole Maley and Maley crew steps out of the office every now and again.  You may spot us laughing and toasting one thing or another.

Image may contain: 2 people, including Heather Moreau, people smiling, people standing and outdoor

MK:  The glory leg! Very kind of Carie! Last question – and speaking of Route 66 – I’ve run in Chicago and I’ve run in Santa Monica.  I love both.  But, let’s imagine there’s a rule that says you can only run ONE 13.1 mile section of Route 66. What section do you choose and why?

Heather: You saved the toughest question for last.  Choosing one 13.1 mile segment of 2,448 phenomenal miles is quite a conundrum.  Each section is unique and an experience in American history and culture.  “Get Your Kicks on Route 66” is a coined phrase for a reason.  It was surreal to stand on a corner in Winslow, Arizona** and would be pretty awesome to do a race down Route 66 that started on that corner.  I can also imagine running along 66 in the Painted Desert that’s part of the Petrified Forest or the views while running the hilly curves of Sitgreaves Pass as Route 66 leaves Arizona and enters California.

But for only one stretch of 13.1 miles, I’d run through Tucumcari, New Mexico for an iconic Route 66 experience.  Running down this strip would mean seeing the heart of the Mother Road up close. Tucumcari is a great example of the prosperity that was granted to a town when Route 66 was formed and the devastation that was left when Interstate 40 was built, bypassing all the neon signs, motor courts, gas stations, mom & pop diners, and cheesy touristy draws. Traveling Route 66 is a lesson in the human impacts of progress.  Running through Tucumcari in the Land of Enchantment would bring that point home all too well.  For me, interacting with locals and seeking an understanding of an area is what travel is all about and my “half crazy 50” plans are serving that goal while allowing me to keep pace with my 26 year old daughter when she says “Mom, can we…”

**MK:  Thank you Heather! And nice Eagles reference Heather! I’d definitely like to run a race and notice a girl, my lord, in a flatbed Ford slowing down to take a look at me.

Anyhow,  I’m most struck by Heather’s final words: “mom, can we . . .”  My guess is that whether your child is 26 years old or 26 months old, you might hear the same question.  For those of who don’t have kids, there’s still plenty of people in our lives who ask if we can make time to do something.

Next time you’re asked, think about Heather Moreau.  Lawyer Wellness includes answering “yes, of course we can.”

Thank you Heather!

Happy Thanksgiving to all.

 

 

ABA Addresses an Attorney’s Obligations in Response to a Data Breach

I’ve blogged often on a lawyer’s duty to act competently to safeguard client data.  Generally, an attorney must take reasonable precautions to protect against inadvertent or unauthorized disclosure of client information.  Some of my posts:

Last month, the ABA’s Standing Committee on Ethics & Professional Responsibility issued Formal Opinion 483.  It sets out a lawyer’s obligations following an electronic data breach or cyber attack.

The opinion is detailed and technical.  It’s worth reading, or, at the very least, sharing with your IT support staff.  Also, various outlets have reported on the opinion, including The National Law Review, Louisiana Legal Ethics, and The ABA Journal.  I suggest each.

I’m going to try to stick to a summary.

  •  Prior to a breach, a lawyer has a duty to act competently to safeguard client property and information.  This likely includes adopting an “incident response plan” that will kick in once a breach occurs.
  • The duty includes an obligation “to monitor the security of electronically stored client property and information.”  In other words, there’s a duty to take reasonable efforts to monitor for and detect unauthorized access. This includes reasonable steps to ensure that vendors act in accordance with the lawyer’s professional obligations.
  • A breach is not necessarily evidence that the lawyer failed to act competently to safeguard client information.
  • If a breach occurs, a lawyer must take reasonable steps to stop it and mitigate the damage that results.
  • If a breach occurs, a lawyer must assess its scope.  This includes determining what information, if any, was lost or accessed.
  • A lawyer must notify current clients if the breach:
    • involves material, confidential client information; or,
    • impairs or prevents the lawyer from representing the client. For example, as would be the case in a ransomware attack.
  • Lawyers must be aware that their ethical obligations are independent of any post-breach obligations imposed by law.  Compliance with professional obligations is not necessarily compliance with other law, and vice versa.

Again, the full opinion is here.

As usual, I like to analogize to non-tech issues.  For instance, when it comes to paper files, most lawyers probably know that there’s a duty to take reasonable safeguards to protect them.  Locked file cabinets.  Locked rooms.  Secure office space.

If a lawyer arrives at work and realizes that the office has been broken into, I imagine the lawyer would intuitively understand the need to determine what, if anything, was viewed or taken.  Then, as appropriate, will notify clients. I also imagine that the lawyer would replace the broken locks, doors, and windows.

Thus, in my view, the ABA opinion clarifies that very standards that most of us already apply to clients’ paper files also applies to their electronic files.

Image result for images of a data breach

 

 

 

 

Estate Planning: Crypto Competence

I blog often on the duty of competence.  It’s in the very first rule.

Until today, I’d not considered Rule 1.1’s application to lawyers who provide estate planning services to clients who own cryptocurrencies.  Rather, with cryptocurrency, I’d only considered the ethics issues associated with accepting it as payment for legal fees.

Today, I came across this post in the ABA Journal.  It includes tips for lawyers who want to provide estate planning services to clients who own crypto assets.

My gut tells me that limiting an estate plan to a client’s non-crypto assets likely isn’t a reasonable limitation.  Even if it was, as a practical matter, I don’t know that many clients would be interested in an estate plan that excludes some of their assets.  Thus, it strikes me that, if it isn’t already, “crypto competence” soon will be a thing for lawyers who provide estate planning services.

See the source image

 

 

Monday Morning Answers #138

Welcome to a short week!

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

Honor Roll

  • Penny Benelli, Dakin & Benelli
  • Andrew Delaney, Martin & Delaney Law Group
  • Erin GilmoreRyan Smith & Carbine
  • Bob Grundstein
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Shannon LambPratt Vreeland Kennelly Martin & White
  • Kevin LumpkinSheehey Furlong & Behm
  • Lon McClintockMcClintock Law Offices
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

Lawyer called me with an inquiry. I listened, then said:

  • “the rule refers to court costs and expenses of litigation, and says that repayment may be contingent upon the outcome.”

What did Lawyer call to discuss?

Providing financial assistance to a client  See, Rule 1.8(e).

Question 2

With respect to legal ethics, the phrase “going up the ladder” is most often used in connection with the duties of attorney who:

  • A.  prosecutes criminal cases
  • B.  knows or should know that the attorney made a mistake
  • C.  is being paid by someone other than the client
  • D.  represents an organization.  See, Rule 1.13(b).  

Question 3

Former Client thinks Attorney committed malpractice.  They meet.  Former Client is not represented, but is willing to accept Attorney’s settlement offer.

By rule, what must Attorney do before settling ?

Advise Former Client in writing of the desirability of seeking independent legal advice related to the settlement, and give Former Client a reasonable opportunity to do so.  See, Rule 1.8(h)(2).

Question 4

What’s the topic of the rule associated with these words & phrases:

  • extrajudicial
  • a lawyer involved in the investigation or litigation of a matter
  • disseminated by means of public communication
  • will have a substantial likelihood of materially prejudicing the proceeding

Trial publicity.  Rule 3.6.

Question 5

In honor of Stan Lee, who passed away this week . . .

Jennifer Walters graduated from the UCLA School of Law and eventually practiced law at the firm of Goodman, Lieber, Kurtzman, and Book.  There, she represented Arthur Moore, a client who had been charged with robbery.   The charge was dismissed after Walters successfully argued that all of the evidence against Moore had been seized during a traffic stop & search that violated the 4th Amendment.

Shortly thereafter, Moore disclosed information to Walters that caused her to go green with anger.  She was so angry that she punched him in the face, knocked him through the wall into the street, and disclosed his confidences to the crowd that gathered after he went crashing through the wall.  As a result, she was disbarred.

No matter, for Jennifer Walters, law was just a side job. Her true calling is as a super hero.

Who is Jennifer Walters when she transforms into her super hero alter ego?

Jennifer Walters is Marvel Super Hero She-Hulk.

See the source image

 

 

Five for Friday #138

I don’t like winter.  At all.

Anyhow, a few nonlawyer friends poked fun at lawyers in response to yesterday’s post on the Florida Supreme Court’s opinion on judges and their Facebook friends.  They found it comical that, only in the law, would you need 2 pages of “mumbo jumb” to define the word “friend.”

Point taken.

But, as I stare at 8 inches of snow, I wish more of you who wished for snow for the holidays would’ve consulted a lawyer before transmitting your wish. Because while we might have needed a lot of mumbo jumbo to define “friend,” we would have used that mumbo jumbo to specify that your wish:

  • “does not include, and in fact excludes, any holiday, religious or secular, that falls closer to the United States federal holiday known as ‘Veterans Day’ than to the United States federal holiday known as ‘New Year’s Day,’ with this clause referring to the ‘Veterans Day’ in any particular calendar year and the ‘New Year’s Day’ that falls in the next calendar year, as determined by the schedule published by the United States Office of Personnel Management, with ‘publishing’ including, but not being limited to, electronic availability.”

Axl did not sing about November Snow. This is ridiculous!

Snow Day

But it’s my fault.  My superstitions failed me.

I’m pretty lazy.   I put off even the simplest of tasks as long as possible, and then some.  One task that falls prey to my procrastination more often than others is changing over to winter tires.  Not this year.

No, this year I dropped off my car on November 6.  Part of my thinking was “if I put them on early, it’ll never snow!”  It’s like when I make sure to pack an umbrella when I drive to Fenway.  If I do, it won’t rain.

Fresh off my new lock screen having won the World Series for the Red Sox, I was confident I’d guaranteed a mild winter.

Apparently the umbrella theory doesn’t apply to winter tires.

Anyhow, cabin fever is already setting in.  But it’s not all bad.  The weather resulted in a very positive experience on the way to work.

I slipped and fell as I walked from the parking garage to the office this morning.  Two college-aged guys were walking from the other direction and saw me fall. I was sure they’d mock me.

Nope.

One clapped and gave me a high-five as he said “you saved the coffee! that’s awesome!”

He was right. I didn’t spill my coffee.  Years of crowded bars finally paid off.

And you know what?  As mad as I was at the weather, and as mad as I was at falling, and as mad as I was at knowing that 138 days from now we could very well be experiencing a similar storm, the guy made me laugh.  He changed my whole outlook on the day.  He won his 3-feet of influence.

Do the same for someone today.  You never know what a difference it’ll make.

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

Lawyer called me with an inquiry. I listened, then said:

  • “the rule refers to court costs and expenses of litigation, and says that repayment may be contingent upon the outcome.”

What did Lawyer call to discuss?

Question 2

With respect to legal ethics, the phrase “going up the ladder” is most often used in connection with the duties of attorney who:

  • A.  prosecutes criminal cases
  • B.  knows or should know that the attorney made a mistake
  • C.  is being paid by someone other than the client
  • D.  represents an organization

Question 3

Former Client thinks Attorney committed malpractice.  They meet.  Former Client is not represented, but is willing to accept Attorney’s settlement offer.

By rule, what must Attorney do before settling ?

Question 4

What’s the topic of the rule associated with these words & phrases:

  • extrajudical
  • a lawyer involved in the investigation or litigation of a matter
  • disseminated by means of public communication
  • will have a substantial likelihood of materially prejudicing the proceeding

Question 5

In honor of Stan Lee, who passed away this week . . .

Jennifer Walters graduated from the UCLA School of Law and eventually practiced law at the firm of Goodman, Lieber, Kurtzman, and Book.  There, she represented Arthur Moore, a client who had been charged with robbery.   The charge was dismissed after Walters successfully argued that all of the evidence against Moore had been seized during a traffic stop & search that violated the 4th Amendment.

Shortly thereafter, Moore disclosed information to Walters that caused her to go green with anger.  She was so angry that she punched him in the face, knocked him through the wall into the street, and disclosed his confidences to the crowd that gathered after he went crashing through the wall.  As a result, she was disbarred.

No matter, for Jennifer Walters, law was just a side job. Her true calling is as a super hero.

Who is Jennifer Walters when she transforms into her super hero alter ego?