Five for Friday #148

Welcome to Friday!

I’m going off script this week.  In a few paragraphs, I’m going to turn the introduction to the quiz over to a lawyer who wishes to remain anonymous.  Here’s the backstory.

On March 3, 2016, I posted Lawyers Helping Lawyers. The post referenced the ABA’s release of a study it did with the Hazelden Betty Ford Foundation, a study that found “substantial and widespread levels of problem drinking and other behavioral health problems in the U.S. legal profession.”  Ever since, whether on this blog or at continuing legal education seminars, I’ve taken every opportunity to call attention to the problem.

Overall, the response has been positive.  But it took a while.

Throughout 2016 and much of 2017, blog posts and presentations were met with silence. Not necessarily out of disinterest, but out of what appeared to be a reluctance to accept that we have a problem.

That’s changed.

It’s changed in big ways.  For instance, the Vermont Commission on the Well-Being of the Legal Profession recently released its State Action Plan.

It’s also changed in small ways.  Beginning in late 2017, various groups and offices started inviting me to speak on attorney wellness. Now, wherever I go, legal professionals not only accept that we have a problem, they’re working on addressing it within their firms and offices.

But not everyone has changed.  It’s not uncommon for someone to tell me something like “why do you keep bringing this up? It’s not ethics and just puts the profession in a bad light.”

I suppose ignoring it casts the profession in a positive light.

Still, the detractors got me thinking.  And, in last Friday’s post Under Pressure, I alluded to wondering whether I raise the issue too much.

A lawyer e-mailed in response to the post.  The lawyer consented to having me publish the e-mail without revealing the lawyer’s identity.  I made two inconsequential changes to protect the lawyer’s identity.  Here it is:

“Mike – Please do not stop talking about this issue.  From my experience, I can tell you there is a divide between lawyers who have a problem with alcohol and drugs and those who don’t appear to have such a problem.  As a hypothetical, assume you are on the side of the divide that alcohol is not an issue for you.  Maybe you do drink alcohol, maybe you do not, but regardless of whether you do or not, it does not affect your ability to live and work in this world.  Assume I am on the other side of the divide.  I either binge drink, or drink daily, or both.  It doesn’t matter which, as the alcohol affects my mood and behavior.  You probably don’t perceive there is a divide between us, even though you suspect or know that my drinking isn’t healthy.  I know my drinking isn’t healthy, too.  I have always probably known, but I like it.  It quiets the racing thoughts and worries I have about work and my personal life.  It gives me a lift so I feel more spontaneous and social.  It helps me get outside myself, and liberates me from my self-consciousness.  Overall, though, it quiets the constant feelings of shame and guilt.  This is the divide, the sense of shame and not feeling as good a person as others.  The shame is isolating.  But, drinking and all of the social aspects of it, become an intrinsic part of your identity.  To stop drinking, means to change your identity and come face to face with the shame you have been avoiding for years.  It doesn’t matter whether the person should feel guilty or ashamed or not, they do, and the feeling can be intense.  Talking about the shame, even in a confidential relationship like a partner, spouse or therapist, is painful.  As your examples today point out, shame can be a more powerful force than the fear of dying.  My thoughts on this subject are not based on watching and talking with others, although I have.  My thoughts on the subject are based upon being on the other side of the divide.  In my experience, people on the healthy side of the divide do not see or appreciate the presence of that divide.  The folks who understand they have a problem with alcohol see the divide clearly, and crossing that divide is a struggle.  I can tell you that I saw and wanted to cross that divide, on and off, for most of my adult life.  It got to the point that I was thinking about the divide almost every day. I stopped drinking alcohol.  I had a note from a good friend, a book and a therapist who helped me.  Quitting, it turns out, was the easiest part.  Rebuilding relationships with myself, my friends and others remains a work in progress.  I didn’t expect to write all of this today, but your article struck a chord, or maybe I should say a nerve.  This is a very important issue and please keep giving it a high priority.”

Let’s bridge the divide.  Raising awareness is the bridge’s foundation.

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

I often refer to the duty of competence.

True or false:  a lawyer may accept representation where the requisite level of competence can be achieved by reasonable preparation.

Question 2

Lawyer and Client agree to form a lawyer-client relationship.  Lawyer and Client have never before entered into a lawyer-client relationship.  The agreement is for an hourly fee.  Which is most accurate?

• A.   the agreement must be in writing
• B.   the agreement must be in a writing that is signed by the client
• C.   the scope of the representation & basis of the fee shall be communicated to the client, preferably in writing, before the Lawyer commences the representation
• D.  the scope of the representation & basis of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after Lawyer commences the representation

Question 3

Which does not belong with the others?

• A.  each affected client gives informed consent, confirmed in writing
• B.  the lawyer reasonably believes the lawyer will be able to provide competent & diligent representation to each client
• C.  the representation does not involve the assertion of a claim by one client against another in the same litigation
• D.  the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation

Question 4

There’s only one rule that requires a lawyer to include a specific phrase on certain types of communications.  What’s the phrase?

• A.   Advertising Material
• B.   Of Counsel
• C.   Pro Bono
• D.   Pro Se

Question 5

As I mentioned, I often refer to the duty of competence.  For some, the ultimate in competence is the utter evisceration of a witness on cross-examination.

The O.J. Simpson criminal trial started 24 years ago today.  F. Lee Bailey, who has since been disbarred for reasons unrelated to OJ, was on Simpson’s so-called “Dream Team.”  Bailey’s evisceration of one of the investigating officers is legendary.

Among other things, during the cross-examination, Bailey got the investigating officer to invoke the privilege against self-incrimination when asked if he had planted or manufactured evidence in the case.

Who was the investigating officer?