Monday Morning Answers #144

Monday, Monday.   Can’t trust that day.

Friday’s questions are here.  The answers follow today’s Honor Roll.  A safe & peaceful New Year to all.

Honor Roll

  • Beth DeBernardi, Administrative Law Judge, VT Dept. of Labor
  • Jake Durrell, Esq.
  • Erin GilmoreRyan Smith Carbine
  • Bob Grundstein, Esq.
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy, JB Kennedy Associates, My mom
  • Lawyers in Cars Eating Chick Fil-A
  • Lon McClintockMcClintock Law Offices
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Jeff MessinaBergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Herb Ogden, Esq.
  • Eric ParkerBauer Gravel & Farnham
  • Bob PrattPratt Vreeland Kennelly Martin & White
  • Jonathan Teller-Elsberg, Vermont Law School, Class of 2020, Staff Editor, Law Review

Answers

Question 1

I often blog about tech competence.

19 years ago today, there was great fear that we were only days away from a massive tech problem.  The Deputy Secretary of Defense warned that the problem was the “electronic equivalent of the El Niño and there will be nasty surprises around the globe.”

What is the name associated with the problem that, in fact, didn’t turn into much of a problem at all?

Y2K Bug

Question 2

Somewhat related . . .

. . . Rule 1.6 prohibits lawyers from disclosing information related to the representation of a client.  Rule 1.16(d) requires lawyers to deliver the file upon the termination of a representation.  I’ve also blogged on what to do when subpoenaed to produce a client file.

In 2016, a Minnesota court considered a dispute between a deceased person’s estate lawyers and divorce lawyers.

Client’s estate lawyers wanted the divorce file, asserting that it might contain “potentially relevant” information as to Client’s potential heirs.  Client’s divorce lawyers (who work at a different firm than the estate lawyers) refused, arguing that it had a professional obligation not to disclose “information protected by the attorney-client privilege and work product doctrine which was generated and acquired during the decedent’s lifetime.”

The Court agreed with the estate lawyers and ordered the divorce lawyers to produce the file.

The Client was a famous musician. Name the musician’s song that somewhat relates to the previous question and today’s New Year theme.

1999

See the source image

Question 3

Imagine that someone files a disciplinary complaint against a lawyer.  I screen the complaint.  The complainant alleges that she met the lawyer at a New Year’s Eve party and was offended when she overheard him refer to her as “a verbally incontinent spinster who smokes like a chimney, drinks like a fish and dresses like her mother.”  Yet, the complainant concedes that the insult caused her to resolve to make changes in her life.

Specifically, the complainant credits the lawyer’s rudeness with causing her to write as follows:

New Year’s Resolutions

These are the things I decided I would do this year.
1. Stop smoking.
2. Develop a mature
relationship with an adult man.
3. Go to the gym.
4. Be kinder and help others more.

I ended up dismissing the complaint.  Why? Because by the end of the year, the complainant withdrew it, having learned that the lawyer wasn’t as bad as she initially thought.  He hadn’t broken up her friend Daniel’s marriage, it was the other way around.  The lawyer even bought her a new journal.  Plus, the PRB doesn’t have jurisdiction over barristers.

Who filed the complaint?

Bridget Jones 

See the source image

Question 4

Regular readers know that I’m a fan of Taylor Swift and The Rolling Stones.  I’ve seen each in concert.  However, the first concert that I ever attended was U2. I saw the band in Montreal during The Joshua Tree tour.

While I’m pro Taylor Swift, and pro Rolling Stones, perhaps I’d be well-served to refer to U2 when addressing a particular section of the Rules of Professional Conduct.  New Year’s Day this time of year, or, better yet, a member of the band.

The section is critically important, but often forgotten when thinking of “legal ethics.”  Which section?

Midway thru the day on Friday, I rephrased the question to try to make it easier. I failed. Guess it’s a poor question. 

Anyway, I’m also pro Bono.

And pro pro bono.  Don’t forget!  The public service rules (6.1 – 6.5) are very important!  Here are som FAQs.

Question 5

You represent a client who has been charged with ordering a relative’s death.  You’re well aware that Rule 1.2(a) requires you to abide by your client’s wishes whether to plea, whether to waive a jury trial, and whether to testify.

Your client has opted not to plea. Now, he wants to testify in his own defense.  Specifically, he wants to testify as to what he meant when, during a New Year’s Eve party in Havana, he said to the now deceased relative:

“I know it was you Fredo. You broke my heart.  You broke my heart.”

What is your client’s name?

Bonus: Name the movie.

Michael Corleone, in The Godfather: Part II   The scene is here.

See the source image

 

Five for Friday #144

Welcome to the final Friday of 2018!

The intro will be short today.  I only have one thing to say:

Image result for images of thank you

2018 was the best year yet for this blog.  I’m grateful for each of you who takes the time to read it and to share my posts with others.

In particular, thank you for your responses to these Friday columns.  I often use the intro to share a personal story.  Your responses to those stories have proven to be my favorite part about writing this blog.  We are much more interesting and varied than the stereotypes often applied to lawyers.

Earlier this year, I bumped into a reader at a CLE.  She said something like “your Friday columns are great! It’s almost like you’re not even a lawyer!”  She meant it in a good way, and I took it as such.

But, the fact that she said it reminded me of how often we expect other lawyers to act, well, lawyerly.  How often we’re surprised that a lawyer has “regular” interests.  I think the lawyer was as surprised that I’m willing to share my nonlawyerly interests and memories.  As if there’s some taboo about breaking out of character.

If this blog accomplishes anything, I hope it’s this: don’t let the profession sap you of being a person.  I choose not to let it.  And I choose to use this space to share nonlawyerly interests that I associate with the week’s number: whether memories of a relative, pop culture, sports, or historical event.  To my readers: I hope you continue to share your memories with me.

Sharing creates ties.  The ties might not bind, but, however loosely, they connect.  Often in ways far stronger than “hey, I guess we both know what ‘summary judgment’ means.”

I’ll always be thankful for the connections forged via this blog.

Thank you! I wish you all the best in 2019.

ps: and while I share my memories, I sneaky get you to read about legal ethics!!!

Onto the New Year’s themed 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

I often blog about tech competence.

19 years ago today, there was great fear that we were only days away from a massive tech problem.  The Deputy Secretary of Defense warned that the problem was the “electronic equivalent of the El Niño and there will be nasty surprises around the globe.”

What is the name associated with the problem that, in fact, didn’t turn into much of a problem at all?

Question 2

Somewhat related . . .

. . . Rule 1.6 prohibits lawyers from disclosing information related to the representation of a client.  Rule 1.16(d) requires lawyers to deliver the file upon the termination of a representation.  I’ve also blogged on what to do when subpoenaed to produce a client file.

In 2016, a Minnesota court considered a dispute between a deceased person’s estate lawyers and divorce lawyers.

Client’s estate lawyers wanted the divorce file, asserting that it might contain “potentially relevant” information as to Client’s potential heirs.  Client’s divorce lawyers (who work at a different firm than the estate lawyers) refused, arguing that it had a professional obligation not to disclose “information protected by the attorney-client privilege and work product doctrine which was generated and acquired during the decedent’s lifetime.”

The Court agreed with the estate lawyers and ordered the divorce lawyers to produce the file.

The Client was a famous musician. Name the musician’s song that somewhat relates to the previous question and today’s New Year theme.

Question 3

Imagine that someone files a disciplinary complaint against a lawyer.  I screen the complaint.  The complainant alleges that she met the lawyer at a New Year’s Eve party and was offended when she overheard him refer to her as “a verbally incontinent spinster who smokes like a chimney, drinks like a fish and dresses like her mother.”  Yet, the complainant concedes that the insult caused her to resolve to make changes in her life.

Specifically, the complainant credits the lawyer’s rudeness with causing her to write as follows:

New Year’s Resolutions

These are the things I decided I would do this year.
1. Stop smoking.
2. Develop a mature
relationship with an adult man.
3. Go to the gym.
4. Be kinder and help others more.

I ended up dismissing the complaint.  Why? Because by the end of the year, the complainant withdrew it, having learned that the lawyer wasn’t as bad as she initially thought.  He hadn’t broken up her friend Daniel’s marriage, it was the other way around.  The lawyer even bought her a new journal.

Who filed the complaint?

Question 4

Regular readers know that I’m a fan of Taylor Swift and The Rolling Stones.  I’ve seen each in concert.  However, the first concert that I ever attended was U2. I saw the band in Montreal during The Joshua Tree tour.

While I’m pro Taylor Swift, and pro Rolling Stones, perhaps I’d be well-served to refer to U2 when addressing a particular section of the Rules of Professional Conduct.  New Year’s Day this time of year, or, better yet, a member of the band.

The section is critically important, but often forgotten when thinking of “legal ethics.”  Which section?

Question 5

You represent a client who has been charged with ordering a relative’s death.  You’re well aware that Rule 1.2(a) requires you to abide by your client’s wishes whether to plea, whether to waive a jury trial, and whether to testify.

Your client has opted not to plea. Now, he wants to testify in his own defense.  Specifically, he wants to testify as to what he meant when, during a New Year’s Eve party, he said to the now deceased relative:

“I know it was you Fredo. You broke my heart.”

What is your client’s name?

Bonus: name the movie.

 

Resolve to be a mentor

In November 2017, I posted The 50 Original Rules.  It’s a post that briefly recaps the history of the conduct rules that apply to lawyers.

As best as I can tell, the earliest record of guidelines for attorney conduct in the United States is David Hoffman’s 1836 publication of his Fifty Resolutions in Regard to Professional Deportment.  My post on the original rules includes each of Hoffman’s 50 resolutions.

182 years later, it’s somewhat fascinating to me how many of Hoffman’s resolutions continue to resonate.  Many are embedded in the current rules and our collective professional conscience.

Given my fascination, I’ve resolved to blog about the continued relevance of Hoffman’s resolutions, taking them one at a time.  To date, I’ve posted:

Today, I’m focusing on #17, Hoffman’s resolution to mentor younger attorneys.  H resolved:

  • “Should I attain that eminent standing at the bar which gives authority to my opinions, I shall endeavor, in my intercourse with my junior brethren, to avoid the least display of it to their prejudice. I will strive never to forget the days of my youth, when I too was feeble in the law, and without standing. I will remember my then ambitious aspirations (though timid and modest) nearly blighted by the inconsiderate or rude and arrogant deportment of some of my seniors; and I will further remember that the vital spark of my early ambition might have been wholly extinguished, and my hopes forever ruined, had not my own resolutions, and a few generous acts of some others of my seniors, raised me from my depression. To my juniors, therefore, I shall ever be kind and encouraging; and never too proud to recognize distinctly that, on many occasions, it is quite probable their knowledge may be more accurate than my own, and that they, with their limited reading and experience, have seen the matter more soundly than I, with my much reading and long experience.”

What great advice.  Someone helped you when you first started. Pay it forward.

Indeed, there’s a relatively new opportunity to serve as a mentor. It’s an opportunity about which many Vermont lawyers might remain unaware.

In 2016, the Court approved a wholesale revision to the Rules of Admission.  The new rules replaced the old “clerkship” with two so-called “experiential requirements.”  Each appears in Rule 12.  Per the rule, lawyers admitted by examination have 1 year to complete:

  1. 15 hours of CLE on Vermont practice & procedure; and,
  2. a mentorship under the supervision of a Vermont lawyer or judge.

With respect to the mentorship, a new lawyer admitted by exam must:

  1. meet regularly with the mentor, no less than 10 times; and,
  2. complete at least 40 hours of activities from a list compiled by the CLE Board and approved by the Board of Bar Examiners.

The mentorship program list is here.

If you’d like to serve as a mentor, please contact me.  I’m going to try to maintain an informal list of mentors with whom to place new lawyers who contact me looking for one.

In addition, I know of many Vermont lawyers who are considering, or beginning to consider, a so-called “exit strategy.”  Mentoring a new lawyer can be a great way to groom a successor to take over your practice.

Finally, remember this: even if  not serving as a mentor for a new lawyer who is completing the formal mentorship requirement, there’s likely a less experienced lawyer who views you as a mentor.  As Hoffman resolved, treat that lawyer well.  There was a time when you were in that lawyer’s shoes and someone more experienced took the time to encourage you.

In short, someone made a difference in your career.  Make a difference in someone else’s.

See the source image

 

 

Legal Ethics & Crowdfunding to pay legal fees

Professor Alberto Bernabe often appears on this blog’s #fiveforfriday Honor Roll.  He also has his own blog and, last week,  blogged on an advisory from the DC Bar. The opinion addresses the ethics issues that arise when a lawyer’s client crowdfunds legal fees.

The opinion is here. Professor Bernabe’s blog post is here.  He wrote more extensively on the topic in this article that pre-dates the DC advisory opinion.

I’ve also blogged on the topic. I did so here in response to an advisory opinion from the Philadelphia Bar Association.  I wrote:

  • “That’s why the Philly opinion is great.  It doesn’t treat ‘crowdfunding platforms’ as new creatures that require new rules.  Rather, it reminds lawyers that the rules that apply when using a crowdfunding platform are the same rules that apply to any other representation.”

As Professor Bernabe notes, the DC Bar opinion is consistent with the Philadelphia opinion and others on crowdfunding.

I like the following statement from the DC Bar:

  • “It is not unusual for clients to rely on money collected from family or friends to pay for legal services.”

Indeed, many Vermont lawyers accept payment from someone other than the client.  The most common situation?  A parent pays for a child’s lawyer in a criminal or family case.

When that happens, it’s critical for the lawyer to remember Rule 1.8(f):

  • “A lawyer shall not accept compensation for representing a client from one other than the client unless (1) the client gives informed consent; (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and (3) information relating to the representation of a client is protected as required by Rule 1.6.”

In other words, even if Parents are paying Lawyer to represent Child, they don’t get to direct the representation and, absent Child’s consent, Lawyer cannot disclose information relating to the representation to them.

Somewhat related, the DC Bar included a great tip in Ethics Opinion 375:

  • “A lawyer should consider counseling his or her client regarding disclosures to third parties. Crowdfunding typically entails some level of disclosure to third parties about the predicate need for counsel. Because of their financial support, crowdfunding contributors may be interested in the status of or information about the client’s matter. Due to the risk of waiver of the attorney-client privilege, or simply for strategic reasons, a lawyer who knows that a client is crowdfunding should provide the appropriate level of guidance to the client regarding disclosures to third parties, whether such disclosures occur on a social media platform or privately in discussions with friends and family.”

In sum, nothing about using a social media platform to crowdfund legal fees is inherently unethical.  Oh, and as mentioned in both the Philadelphia and D.C. advisory opinions: crowdfunding helps provide access to legal services to those who otherwise might not be able to afford a lawyer.

See the source image

Related:

 

 

 

 

 

 

Monday Morning Answers #143

Welcome to Monday!

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

Honor Roll

Answers

Question 1

You represent George.  He is concerned that his elderly father has been acting irrational and has come to you for advice on a potential involuntary guardianship.  George informs you that he’s been worried for months, but that the last straw was when his father challenged him to a fight during the “feats of strength” aspect of the family’s recent holiday celebration.

For now, the information relating to your representation of George is protected by Rule 1.6.  Including the holiday.  But in order to protect it, you have to know what it is.  What holiday were George and his father celebrating?

FESTIVUS

See the source image

Question 2

Lawyer represents Client.  Client is charged with kidnapping Clarice and assaulting a gallant suitor who attempted to free her.  Client is also charged with the felony murder of one Yukon Cornelius.  Yukon is presumed dead.  He disappeared off a cliff during the daring rescue mission of Clarice and her suitor that Yukon carried out with an heretofore incompetent dentist.

But lo’ and behold, the prosecutor learns that Yukon is alive and well!  As required by Rule 3.8(d), prosecutor notifies Lawyer and, then, as required by Rule 3.1, dismisses the felony murder charge.

Lawyer works diligently to convince prosecutor to drop the remaining charges.  After all, despite a monstrous reputation, Client is winning in the court of public opinion.  If only because Client’s physical stature comes in handy during the holidays.

Who is Lawyer’s client?

Bumble The Abominable Snow Monster

See the source image

Question 3

Attorney is a public defender.  She’s been assigned to represent Willie T. Stokes.  Willie is a con man. He and a co-defendant, Marcus “Elf” Skidmore, have been charged with staging elaborate robberies of department stores the past several Christmas Eves.

Marcus asks Attorney to represent him too.  Attorney is mindful of Comments 29-33 to Rule 1.7: the comments that discuss the ethics of “common representation.”

Yet, just as she starts to re-read the comments, Attorney wakes up. It was all a dream!  She doesn’t really represent Willie T. Stokes, he’s a fictional character!

What movie must Attorney have watched before she fell asleep?

BAD SANTA

See the source image

Question 4

One of my favorite unethical fictional lawyers is Barry Zuckerkorn.  He’s the Bluth family’s incompetent lawyer in Arrested Development. Zuckerkorn is played by Henry Winkler who, of course, also played Arthur Fonzarelli in Happy Days.

Speaking of Fonzie, there’s a well-known holiday song that includes the follow lyrics:

Guess who eats together at the Carnegie Deli

Bowzer fro Sha Na Na and Arthur Fonzarelli”

Name the song.

The Chanukah Song, Adam Sandler

See the source image

Question 5

Michael consults Attorney for advice. Michael wants to know whether he has any recourse against employees who, in Michael’s opinion, did not buy sufficiently nice gifts for the office’s “Secret Santa” party, a party that Michael turned into a “Yankee Swap” after receiving an oven mitt from his secret santa.  Michael complains that the gift he received was cheap compared to the one he bought.  The one he bought cost $400 and was intended to Ryan.

Mindful of my advice that a good way to avoid disciplinary complaints is to manage client expectations, Attorney candidly tells Michael that he has no claim. The rules of the Yankee Swap were clear: spend no more $20.  Michael assumed the risk by spending more.

 

Part 1:  What did Michael buy?

Part 2:  Who ended up with the $400 item that Michael intended for Ryan?

In Christmas Party (The Office)Michael Scott bought a video iPod that he intended for Ryan Howard. Pam Beesley ended up with it, but then traded it to Dwight Schrute for the teapot that Jim Halpert meant for Pam.

See the source image

 

Legal Ethics & The Water Cooler

Yesterday, the ABA Journal posted its “Top 10 most-read legal news stories of 2018.”  The intro notes that “[l]awyers busy with research, conferences and other high-concentration tasks sometimes need a break. So it’s no surprise that the most-viewed articles on our website tend toward water-cooler topics . . .”

That’s consistent with the stats for this blog.  The most-read posts are the #fiveforfriday legal ethics quizzes.

Still, I find it interesting that 3 of the ABA’s most-read stories relate to legal ethics/professional responsibility, even if in a water cooler type of way.  So, I thought I’d share them, along with a personal note on a topic that we must move beyond the water cooler.

1. ‘Making a Murderer’ lawyer acquitted on stalking charge; he did ‘meow randomly,’ court told.

This was the most-read legal news story on the ABA Journal in 2018.

I’ve not blogged often on Making a Murderer.  To the extent I’ve mentioned it here or during CLEs, it’s been to note that Ken Kratz’s law license was suspended for 4 months for conduct unrelated to the prosecution of Steven Avery & Brendan Dassey.  Rather, the Wisconsin Supreme Court suspended his license in response to Kratz “sexting” a victim while prosecuting her ex for domestic abuse.  The order is here, with a CBS News story on the case here.

Anyhow, the ABA Journal’s most-read story of 2018 did not involve Kratz.  It involved Len Kachinsky.  Kachinsky is the lawyer who, among other things, agreed to let law enforcement interview Dassey without him (Kachinsky) being there.  A federal judge eventually concluded that Kachinsky’s representation of Dassey was “inexcusable both tactically and ethically.”

Earlier this month, Kachinsky was acquitted of felony stalking charges.  Per the ABA Journal, Kachinsky’s lawyer informed the jury that Kachinsky was quirky and “would be heard to meow randomly occasion,” but that some people found him “endearing.” Apparently the jury agreed.

In Vermont, a lawyer’s felony conviction violates Rule 8.4(b).

5. Utah bar ‘horrified’ over email blast sent with photo of topless woman

This was the 5th most-read legal news story on the ABA Journal in 2018.

For years, I’ve blogged on tech competence.  Indeed, earlier this month, the Vermont Supreme Court adopted the so-called “tech competence” comment to Rule 1.1, the rule that requires lawyers to provide clients with competent representation.

I don’t think that anyone at the Utah Bar violated the ethics rules.  Yet, “human error” resulted in an email to all active Utah lawyers including a photo of a topless woman.

Oops.

Many years ago, I was prosecuting a lawyer. I can’t remember the charge. I do remember that, on the day of the hearing, the lawyer sent an email to the hearing panel stating that  she would not drive to the hearing because her car’s “check engine” light had come on.  She purported to attach a picture of the “check engine” light.

It was a picture of her cat.

Tech competence is a thing.

9.  Lawyers rank highest on ‘loneliness scale,’ study finds

This was the 9th most-read legal news story on the ABA Journal in 2018.

Per the story, lawyers are lonelier than other professionals.  Here’s a quote from the post:

  • “Houston-area lawyer Scott Rothenberg tells the ABA Journal that loneliness and isolation may be a root cause of many lawyer issues. ‘There are these disparate problems like depression and suicide and substance abuse, in many respects tied together,’ he says.”

This is another topic upon which I’ve often blogged: lawyer wellness & well-being.  The ABA Journal story makes me think of “impostor syndrome.”   Remember, if loneliness or depression makes you feel like an impostor, YOU ARE NOT.

Yesterday, my dad’s wife sent me a gut-wrenching email.  Her son, my step-brother, died this summer.  His name was Todd.  For many, many years, Todd fought valiantly against troubles caused by substance abuse & mental health disorders.

In the e-mail, my dad’s wife mentioned that she’d been meaning to tell me that, coincidentally, on the day I posted the blog on “impostor syndrome,” she’d been reading through Todd’s journal.  She added that she wanted:

  • ” to tell you how accurate your post was in relation to the feeling of loneliness, due to the fact that Todd had lived for years trying to be someone who he really wasn’t, and feeling the need to lie, to pretend.”

She concluded by noting how sad it is to know that there are so many people who struggle with the same self-doubt & fear on a daily basis, tricked into feeling that way by behavioral health issues.

She’s right.

Attorney well-being is a topic that we, as a profession, must ensure remains at the forefront, well beyond “water cooler talk.”

 

 

 

 

Five for Friday #143

Welcome to Friday!

Now, before I get to the quiz, I’m compelled to share the story of a trial that raises concerns as to the ethics of the lawyers & judges involved.

Doris hired Kris to work at a store that she, Doris, managed.  Kris proved popular with the customers and helped to increase sales.  Yet, Kris was not popular with some of the store’s executives.  They were especially irked that he’d referred a customer to a competing store.  They also doubted that he was who he claimed to be.

Management ordered Kris to meet with the company psychologist, Dr. Sawyer. The meeting did not go well for Kris.  He hit the psychologist with a cane.  Claiming assault and feigning an injury more severe than it was, Dr. Sawyer arranged to have Kris detained in a psychiatric unit.

Involuntary commitment proceedings ensued.  The prosecutor’s case focused on the allegation that Kris’s claim as to his identity was so irrational as to warrant commitment.  The case relied almost entirely on two things: (1) Kris’s claim that he was who he claimed to be; and (2) testimony from Doris’s 6-year old daughter Susan that included a critical hearsay statement made by none other than the prosecutor.

Fred represented Kris. Fred liked Kris, and believed in him, but also had a crush on Doris.  Fred took the case, in part, to spend more time with Doris.

For a while, it appeared as if Kris would be committed.  Then, two things turned the case.

First, Fred helped to organize a scheme by which officials from the U.S. Postal Service agreed to help to influence the judge, the Honorable Henry X. Harper. Postal officials delivered an incredible number of letters from those who believed in Kris to chambers, along with a message that the post office considered Kris to be who he claimed to be.

Second, a local politician met ex parte with Judge Harper and informed him his career would be over if he ordered Kris to be committed.

Judge Harper got the message loud & clear.  He ruled that a state court had no business challenging the federal government (the post office’s) conclusion that Kris was who he claimed to be.  Thus, Kris was not committed.

Sounds good, right? Well, yes, if you’re willing to ignore potential violations of, among other rules:

  • Rule 3.1 – meritorious claims
  • Rule 3.7 – lawyer as witness
  • Rule 3.8 – special responsibilities of a prosecutor
  • Rule 1.7 – conflict of interest
  • Rule 3.5(a) – influencing the judge by means prohibited by law
  • many of the section of Rule 8.4
  • a host of the canons of judicial conduct

Some of you have probably figured out who Kris claimed to be.

For those of you haven’t, Kris claimed to be Santa Claus.  And this isn’t a real-life case: it’s the plot from Miracle on 34th Street.

Thank you Bridget Asay!

See the source image

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

You represent George.  He is concerned that his elderly father has been acting irrational and has come to you for advice on a potential involuntary guardianship.  George informs you that he’s been worried for months, but that the last straw was when his father challenged him to a fight during the “feats of strength” aspect of the family’s recent holiday celebration.

For now, the information relating to your representation of George is protected by Rule 1.6.  Including the holiday.  But in order to protect it, you have to know what it is.  What holiday were George and his father celebrating?

Question 2

Lawyer represents Client.  Client is charged with kidnapping Clarice and assaulting a gallant suitor who attempted to free her.  Client is also charged with the felony murder of one Yukon Cornelius.  Yukon is presumed dead.  He disappeared off a cliff during the daring rescue mission of Clarice and her suitor that Yukon carried out with an heretofore incompetent dentist.

But lo’ and behold, the prosecutor learns that Yukon is alive and well!  As required by Rule 3.8(d), prosecutor notifies Lawyer and, then, as required by Rule 3.1, dismisses the felony murder charge.

Lawyer works diligently to convince prosecutor to drop the remaining charges.  After all, despite a monstrous reputation, Client is winning in the court of public opinion.  If only because Client’s physical stature comes in handy during the holidays.

Who is Lawyer’s client?

Question 3

Attorney is a public defender.  She’s been assigned to represent Willie T. Stokes.  Willie is a con man. He and a co-defendant, Marcus “Elf” Skidmore, have been charged with staging elaborate robberies of department stores the past several Christmas Eves.

Marcus asks Attorney to represent him too.  Attorney is mindful of Comments 29-33 to Rule 1.7: the comments that discuss the ethics of “common representation.”

Yet, just as she starts to re-read the comments, Attorney wakes up. It was all a dream!  She doesn’t really represent Willie T. Stokes, he’s a fictional character!

What movie must Attorney have watched before she fell asleep?

Question 4

One of my favorite unethical fictional lawyers is Barry Zuckerkorn.  He’s the Bluth family’s incompetent lawyer in Arrested Development. Zuckerkorn is played by Henry Winkler who, of course, also played Arthur Fonzarelli in Happy Days.

Speaking of Fonzie, there’s a well-known holiday song that includes the follow lyrics:

Guess who eats together at the Carnegie Deli

Bowzer fro Sha Na Na and Arthur Fonzarelli”

Name the song.

Question 5

Michael consults Attorney for advice. Michael wants to know whether he has any recourse against employees who, in Michael’s opinion, did not buy sufficiently nice gifts for the office’s “Secret Santa” party, a party that Michael turned into a “Yankee Swap” after receiving an oven mitt from his secret santa.  Michael complains that the gift he received was cheap compared to the one he bought.  The one he bought cost $400 and was intended to Ryan.

Mindful of my advice that a good way to avoid disciplinary complaints is to manage client expectations, Attorney candidly tells Michael that he has no claim. The rules of the Yankee Swap were clear: spend no more $20.  Michael assumed the risk by spending more.

 

Part 1:  What did Michael buy?

Part 2:  Who ended up with the $400 item that Michael intended for Ryan?

 

 

:

 

 

 

TBT: Counsel Clients on Social Media Use

The post below is a cut & paste job.  The original ran several months ago.  I’m re-running it because I recently heard from two different attorneys whose clients posted damning information to social media.

Summary: I think you can make an argument that the duty of competence includes advising a client that the opposing party & lawyer will likely look for and use any information that the client posts to social media.

*****

Earlier this month, the ABA Journal posted a blog in its “ethics” section: Celebrity attorneys face challenges, ethical pitfalls.   I enjoyed it as much from the pop culture slant as I did from the “it’s my job” slant.

However, speaking of the “it’s my job” slant, I want to discuss two things.

First, over the past year, the news has been filled with lawyers making public statements about their clients and former clients.  So much so that several times I’ve been asked what I think about it.

Regular readers know what I think it.  I’m a big believer in two concepts:

  1. Hey Lawyers! STFU!!!
  2. Can’t Keep Quiet? Try Harder.  

As Thomas Edison said:

“You will have many opportunities
to keep your mouth shut.
You should take advantage
of everyone of them.”

(aside: choosing not to blog is probably one of the opportunities of which I should take advantage.)

Second, while most of the article discusses trial publicity and Rule 3.6, there’s a little nugget that, in my view, is great advice not just for lawyers who represent celebrities, but for lawyers who represent, well, clients.

Referring to lawyers who represent famous people, the article says:

  • “Client and entourage use of social media can compromise a defense. Ethically, attorneys have to make sure their clients and their team understand ground rules and place limitations on social media use related to the case.”

Trust me, I understand that very few of my readers represent the Vinny Chases of the world.  Nonetheless, I think the second sentence is critically important even for lawyers whose clients don’t have their own versions of E, Turtle, and Johnny Drama.

Why?

Because these days, entourage or not, what client isn’t on social media???  And that’s where the very next paragraph in the ABA Journal post comes in.  Quoting Ann Murphy, a professor at Gonzaga University School of Law, the post notes:

  • ” ‘Attorneys, as part of their ethical duties, must now counsel their clients on the use of social media,’ Murphy says. ‘Once it is out there, it is out there. Even if someone deletes a Facebook post—it likely has been saved as a screenshot and is of course subject to discovery,’ she adds. ‘Personally, I think the best advice is tell the client that any posts about his or her case must be viewed in advance by the attorney.’ “

That’s a fantastic tip.  Professor Murphy – if perchance you find this blog, In Few I Trust. Go Zags! 2019 national champs!

See the source image

Now, I can hear some of you now – “mike, am I supposed to know what my client puts on social media?”

Well, opposing counsel will.  So unless you’re comfortable finding out about that damning tweet or post at deposition or in mediation, my response is:

See the source image

At the very least – and by “very least” I mean “barest of bare minimums” – I think lawyers have a duty to communicate to their clients the risks associated with posting info to a public forum.

In sum, while the ABA Journal article focuses on the risks associated with representing famous clients, it includes a tidbit that applies to any lawyer who has a client on social media: what happens on social media rarely stays on social media.

Tech competence.  It’s a thing.

By the way, among my friends, I’m definitely E.  My brother is almost definitely Drama.  Alas, while we have several candidates for Turtle, not many for Vinny.   And at risk of offending my friends, the “many” in that previous sentence?  It’s pronounced with a silent “m.”

See the source image

Wellness Wednesday: STOP IT!

For those of you who remember Wellness Wednesday: EnoughI’m guessing that today’s post will be different than what you might expect from the headline.

For me, sometimes “wellness” is as simple as a smile or a laugh. And today’s story gives me both.

As reported by the ABA Journal, Houston Chronicle, Above the Law and other outlets, Judge Vanessa Gilmore issued a fantastic order this week.  Here’s the first line:

Whiny Lawyers

For those of you who skip straight to the end upon receiving a much-anticipated court order, here are the final few lines:

Whiny Lawyers 2

Not surprisingly, the order issued in response to a discovery dispute.  I can’t tell you how many complaints & inquiries I’ve received that are remarkably similar.

Judge Gilmore: I feel your pain!! Thank you for contributing to my wellness this week! Hopefully your order deters behavior that, in my view, is a gateway to the stress & frustration that detracts from wellness and drives good lawyers from the profession.

Oh, and on a more serious note, here’s to TJ Donovan, Rob McDougall and the lawyers & staff in the Attorney General’s Environmental Protection Division.  Yesterday, they took time to contribute to the wellness of others by volunteering at the Good Samaritan Haven in Barre.

Thank you TJ, Rob, and team!

Image may contain: 10 people, people smiling, people standing

 

 

Providing Access to Legal Services is a Professional Responsibility

Last month, the ABA’s Standing Committee on Ethics & Professional Responsibility issued Formal Opinion 484.  The opinion outlines a lawyer’s duties to clients who use finance companies to finance the lawyer’s legal fees.

The ABA Journal blogged on the opinion.  The post includes the following quote:

  • “By some estimates, more than 75 percent of low-income and middle-income individuals have legal needs that go unmet for financial reasons,” said Barbara S. Gillers, chair of the ABA Standing Committee on Ethics and Professional Responsibility. “Formal Opinion 484 is important because it addresses a way to increase access to legal services for those persons who may wish to or need to finance legal fees in order to retain counsel.”

I’ll summarize the opinion in a separate post.  And, I find it a bit incongrous to discuss access to legal services in the context of the ethics of referring low-income people to loan companies.  For now, however, I want to make clear my view that increasing access to legal services is a professional responsibility.

The fact that such a staggering number of people can’t afford lawyers should not surprise anyone.  We’ve known about it for years.

In September 2015, the Vermont Commission on the Future of Legal Services issued a report and recommendations.  I chaired the Commission’s subcommittee on the Future of Legal Education.  Our section of the report included a recommendation to license paralegals as part of the effort to increase access.  We noted:

“Vermont has an access to justice problem. The issue is better described as Vermont has an ‘access to legal services problem.’  The problem is not new.

In 2012, the Honorable Amy Davenport analyzed the number of self-represented litigants in cases in the Civil Division of the Vermont Superior Court. The numbers were staggering.Defendants in small claims cases represented themselves 94% of the time. In the Family Division, 84% of active parentage cases and 54% of active divorces involved at least one self-represented litigant. Ninety percent of the defendants in landlord-tenant cases were self-represented compared to only 24% of the plaintiffs. Defendants in collections and foreclosure cases fared marginally “better,” respectively left to represent themselves 84% and 74% of the time. This “improvement” was offset, if not rendered irrelevant, by the fact that 99% of foreclosure plaintiffs and 98% of collections plaintiffs had lawyers.

These numbers reflect a court system that would be unrecognizable to lawyers who practiced a generation or two ago. In 2012, small claims, collections, landlord-tenant, divorce, and parentage cases accounted for 72% of Vermont’s civil docket.  The vast majority of ordinary Vermonters navigating a civil dispute are doing so without any help from a lawyer.”

(I included the excerpt, but deleted the footnotes.  To review them, see page 19 of the report.)

I’ve often written & spoken on issues related to access to legal services. Two common questions:

  1. Mike, what’s this got to do with ethics?
  2. Mike, I’m all for increasing access, but the rules seem to make it difficult.

Answers:

  1. Everything.
  2. I disagree.

The Vermont Rules of Professional Conduct are here.   Let me share some excerpts from the preamble

  •  “As a public citizen,  lawyer should seek improvement of the law, access to the legal system, the administration of justice, and the quality of legal services rendered by the legal profession.”  Preamble, [6].

The same paragraph continues:

  • “A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance.

The paragraph concludes:

  • “Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel.”

So, to me, the Preamble makes clear that working to increase access to legal services is a professional responsibility.  I think the Preamble also establishes that there is no legitimate argument that the rules deter, or should be intepreted in such a way that would deter, lawyers from providing legal services to those who cannot afford them.

The rules are intended to deter unethical conduct.  It simply cannot be unethical to help those in need.

I could go on at length with my thoughts on using the Rules of Professional Conduct to increase access to legal services.  I won’t.  Suffice to say, I believe that increasing access to legal services is a professional responsiblity.

And, as we work to meet that responsibility, it’s important not to act like lawyers.  As I blogged here and here in posts on access, too often, we let perfect be the enemy of the good.  Those without access are too many to strive for the perfect solution.  Indeed, as Jason Tashea notes in an ABA Journal post on Formal Opinion 484, the problem is likely far bigger than the profession itself.

Whether you agree with his argument is one thing.  But, to me, it crystallizes the notion that our predilection to search for the perfect solution keeps us from making progress.  There’s no magic arrow that will slay the dragon that is unmet legal needs.  But there might be progress in every pinprick.

We don’t have to be perfect.  Even being a little bit better would be good.

And it’s our professional responsibility to be better.

Legal Ethics