Five for Friday #156

Spring has arrived!

I’m in Flat Rock, North Carolina.  My dad and his wife live here.  Today, nothing but blue skies and temperatures in the high 60s.  Later today, I’m heading up to Asheville to run.  Tomorrow I drive to Tennessee to spend the night with an old friend and run in Sunday’s Knoxville Half Marathon.

(As it says in Comment [3] to Rule 1.3, “perhaps no professional shortcoming is more widely resented than procrastination.”  My goal this year is to run a half-marathon in at least 10 states or provinces.  I posted the goal to Instagram and Facebook on New Year’s Day.  Nothing like waiting until March 31 to get started.)

Anyhow, if you’re ever in Flat Rock, don’t forget to stop by Hubba Hubba Smokehouse. It’s the official North Carolina BBQ joint of this blog and is but a stone’s throw from Carl Sandburg’s home.

I spent yesterday morning at the Sandburg place.

Paltering alert!

I was running the trails through the vast property.

Like Vermont, Asheville is a hot bed of craft beer.  It wouldn’t surprise me if today’s post-run festivities include some local fare.  After all, when so close to Highland Brewing, why not make a vacation a Daycation?

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And, finally, to tie it to the number.  Knoxville is 130 miles from my dad’s.   And the trip starts on I-26.

130 + 26 = 156.

Onto the quiz!

Question 1

A lawyer has a duty to reasonably consult with the client about the means by which the client’s objectives are to be accomplished.

  • A.   False.  The lawyer controls the means.
  • B.   False.   The lawyer shall abide by a client’s decisions with respect to the means by which the client’s objectives are pursued.
  • C.   True.
  • D.   It’s not clear from the rules.

Question 2

In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person.

  • A.   That’s a rule.
  • B.    Aspirational, and one would hope, but not a rule.
  • C.    Umm, the rule doesn’t say “third person,” it says “another party.”
  • D.   Incivility is not unethical.

Question 3

Can a lawyer ethically ask someone other than a client not to volunteer relevant information to another party?

  • A.   No.
  • B.   Yes, if the person is a relative, employee, or agent of the client.
  • C.    Yes, if the lawyer reasonably believes that the person’s interests will not be adversely affected by not giving such information.
  • D.    B & C

Question 4

Lawyer called me with an inquiry. I listened, then replied “the rule is very specific about when you can use or reveal information relating to the representation of a former client.”

I was referring to the rule on:

  • A.    Duties to Former Clients
  • B.    Competence
  • C.    Diligence
  • D.    Confidentiality of Information

Question 5

I’m no poet, but given that I’m in the area . . .

Talk about bad PR for the profession! Perhaps we need to be better at Question 2 (above)

Who wrote this poem?

The lawyers, Bob, know too much.
They are chums of the books of the old John Marshall.
They know it all, what a dead hand wrote,
A stiff dead hand and its knuckles crumbling,
The bones of the fingers a thin white ash.
       The lawyers know
       a dead man’s thoughts too well.

In the heels of the higgling lawyers, Bob,
Too many slippery ifs and buts and howevers,
Too much hereinbefore provided whereas,
Too many doors to go in and out of.

       When the lawyers are through
       What is there left, Bob?
       Can a mouse nibble at it
       And find enough to fasten a tooth in?

       Why is there always a secret singing
       When a lawyer cashes in?
       Why does a hearse horse snicker
       Hauling a lawyer away?

The work of a bricklayer goes to the blue.
The knack of a mason outlasts a moon.
The hands of a plasterer hold a room together.
The land of a farmer wishes him back again.
       Singers of songs and dreamers of plays
       Build a house no wind blows over.
The lawyers—tell me why a hearse horse snickers
       hauling a lawyer’s bones.

Competence & ESI: Consider a Protocol

I’ve not said it in a while:  competence includes tech competence.

Almost 18 months ago, I posted Competence, ESI, and E-Discovery.  In it, I posed a question on the duty of competence that I often ask at CLEs:

  • To me, the duty includes:
    • knowing that “it” exists,
    • knowing that clients, their adversaries, and witnesses have “it;” and,
    • knowing how to protect, preserve, produce, request, review, and use “it.”
  • What is “it?

As many regular readers know, “it” is ESI, electronically stored information.

In 2015, the State Bar of California’s Standing Committee on Professional Responsibility and Conduct issued Formal Opinion 2015-193.  The opinion responds to the question “[w]hat are an attorney’s ethical duties in the handling of discovery of electronically stored information?”  Here’s the first sentence of the digest:

  • “Attorney competence related to litigation generally requires, among other things, and at a minimum, a basic understanding of, and facility with, issues relating to e-discovery, including the discovery of electronically stored information (‘ESI’).”

Four years later, I sense that the issue continues to worry some lawyers.  It should.  Our world is replete with ESI.  As such, and to the extent that the outcome of client matters turns on “information,” ESI can be incredibly important to clients and their matters.  Especially litigation matters.

Tonight, browsing through Above The Law before I divide my focus between the Red Sox and the Sweet 16, I came across 5 Advantages of Having An ESI Protocol For Your Matter.  It’s by Kelly Twigger and includes some great tips.  I suggest giving it read.  To me, the subtitle says it all:

“The exercise of thinking through everything that will be needed for your case in discovery is invaluable.”

That’s competence.

Image result for esi discovery

 

Malpractice Insurance & Legal Ethics

Today on his Professional Responsibility Blog, Professor Alberto Bernabe reports that the New Jersey Supreme Court declined to require all lawyers to carry professional liability insurance.  As Professor Bernabe notes, Professional Responsibility: A Contemporary Approach originally reported the NJ development.  A summary:

  • NJ will not require all lawyers to obtain coverage;
  • NJ will retain an existing rule that requires limited liability corporations to carry insurance of at least $100,000 per claim multiplied by the number of attorneys in the firm;
  • Once administrative rules & regulations are developed, NJ will require attorneys to file evidence of the insurance that they carry, with the filings available to the public; and,
  • NJ will table, for now, discussion whether to require lawyers who do not carry liability insurance to disclose that fact to prospective clients.

Vermont does not mandate malpractice insurance.  The issue, however, interests me.  I’m particularly intrigued by the connection, if any, between Rule 1.4 and malpractice insurance.

Rule 1.4 requires a lawyer to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”  Consider:

  • can a client make an informed decision to hire a lawyer without knowing whether the lawyer carries malpractice insurance?
  • if a client asks, and the lawyer says “yes, I have malpractice insurance,” must the lawyer inform the client if, for whatever reason, coverage stops or is not renewed?

Last fall, Bloomberg Law posted Avoiding Accountability: The Rise of Mandatory Malpractice Insurance and DisclosureWith respect to mandating coverage, the article sets out the pros, cons, and a middle ground that has emerged.  Per the post:

  • Pros:  protects the public, provides accountability.
  • Cons:  cost prohibitive, will encourage more claims.
  • Middle ground: do not require insurance, but require lawyers to disclose whether they have it.

I assume the discussion will continue.

Image result for images of malpractice insurance

 

 

 

 

 

March Madness

In Vermont, Rule 8.4(c) makes it professional misconduct for a lawyer to engage in a serious crime.

Most who know me or follow this blog know that I’m not only a former high school basketball coach, but a huge fan of college hoops.  Coupled with my day job, it’s not surprising then that so many have asked for my thoughts on Michael Avenatti.

As my brother said yesterday, “it sure is something.”

Yes, yes it is.

It’s something for many reasons.  Including the fact that federal criminal charges of wire & bank fraud have been lost in the news shuffle.

Some background.

For over a year, the Adidas scandal has rocked major college basketball.  The scandal involves allegations that Adidas executives, AAU coaches, and college coaches conspired to funnel money to the families of high-profile recruits.  Earlier this month, three were sentenced for their roles in the scheme.  More trials are scheduled for later this year.

Flash-forward to yesterday.

Shortly after noon on the east coast, Michael Avenatti tweeted that, today, he’d hold a press conference at which he’d disclose a “major high school/college basketball scandal perpetrated by @Nike.”  As a basketball fan, I was intrigued as to which big-time coaches and players would be named.

Alas, within 30 minutes of his tweet, Avenatti was in federal custody.  SI.com has two stories on his arrest and arraignment: this one by former Vermont Law School professor Michael McCann, and another on how unusual the arraignment was.

As the initial reports trickled out, I was confused as to how Avenatti could be charged with a crime.  The stories seemed to suggest that, on behalf of a client, he asked Nike to settle potential civil claims in exchange for a confidentiality agreement.

Not exactly.

Again, McCann’s post includes the criminal complaint and sets out the allegations against Avenatti. In short, the federal government charges that Avenatti told Nike’s lawyers that he’d go public with the alleged scandal unless Nike (1) paid $1.5 million to his client; and (2) paid Avenatti and an unnamed co-conspirator either (a) between $15 million and $22.5 million to conduct an internal investigation into the alleged scandal; or, (b) $22.5 million to remain silent; or (c) double whatever it ends up paying any firm that it might hire to conduct the internal investigation.

To me, an intriguing question is this:  what if Avenatti and his client have evidence of another sneaker scandal?  Already today, he’s taken to Twitter (1) to say that the truth will eventually come out; (2) accuse Nike of improper conduct; and (3) make allegations against players and Nike executives. Will he explore a cooperation deal to resolve his own charges? Would Nike’s lawyers have dropped the dime if they thought he actually had the goods?

Who knows.

Anyhow, serious charges.  And not the first against Avenatti this month.

Yes, the Nike charges are dominating the news.  But, as McCann noted, last Friday, the federal government filed this criminal complaint against Avenatti.  It charges him with wire and bank fraud.  As summarized by the Los Angeles Times, the California case alleges that Avenatti:

  • fraudulently obtained  $4.1 million in loans;
  • did not file tax returns for years;
  • took $1.6 million that belonged to a client; and,
  • attempted to cover-up his crimes.

That such allegations against a licensed lawyer are lost in the shuffle of the basketball-related charges is something.

Yes, yes it is.

March Madness indeed.

Image result for images of michael avenatti and basketball

 

 

 

Monday Morning Answers #155

Welcome to the last March Monday!

Spring is near, Friday’s questions are here.   The answers follow today’s Honor Roll.

Honor Roll

Answers

Question 1

If the client gives informed consent, or, if doing so is impliedly necessary to carry out the representation, a lawyer does not violate the rules by:

  • A. disclosing information related to the representation.  V.R.Pr.C. 1.6(a)
  • B.  charging an unreasonable fee
  • C.  A & B
  • D.  None of the above

Note: the fact that a client agrees to a fee does not necessarily make it reasonable.

Question 2

When a lawyer opens a pooled interest-bearing trust account, the rules requires the lawyer to notify the bank that:

  • A.  Interest must be paid to the Vermont Bar Foundation.  V.R.Pr.C. 1.15(B)(b)(1)
  • B.  ACH transactions are prohibited on such accounts.
  • C.  the lawyer cannot deposit her own funds in the account, even to cover bank charges
  • D.  All of the above

Question 3

Attorney represents an organization in a matter.

Opposing Counsel knows that Attorney represent the organization in the matter.

Without Attorney’s permission, Opposing Counsel discusses the matter with a former employee of the organization.

Which is most accurate with respect to the Rules of Professional Conduct?

  • A.  Opposing Counsel violated the rules.
  • B.  Opposing Counsel did not violate the rulesSee, V.R.Pr.C. 4.2, Comment [7] (“Consent of the organization’s lawyer is not required for communication with a former constituent.”)
  • C.  Attorney violated the rules.

Question 4

Lawyer called me with an inquiry.  My response included telling Lawyer that the rule suggests that she must take “reasonable remedial measures.”  Most likely, Lawyer called to discuss the rule on:

Question 5

There’s a lawyer who has been in the news an awful lot the past few years.  Last month, he was forced to give up control over his own law firm after being accused of bankruptcy fraud.

Specifically, he is alleged to have used various & nefarious accounting maneuvers to hide over $10 million in legal fees to keep from having to pay them to his firm’s creditors.

Name the lawyer.

Michael Avenatti.  The ABA Journal has the story here.

Image result for avenatti

 

 

Five for Friday #155

From the shores of Lake Morey, welcome to the first #fiveforfriday of spring!

It’s definitely in the air:

IMG_2493

Somewhere.

The Vermont Bar Association’s 62nd Mid-Year Meeting opened last night.  The evening’s seminar focused on wellness and the State Action Plan.  A fantastic dialogue ensued.

Many members of an engaged audience shared personal experiences with the various aspects of the profession that trigger anxiety and stress.  One was raised more often than I expected:  civility.

Several folks mentioned that dealing with antagonistic and rude opposing attorneys is a significant source of stress.  Simply, we don’t always treat each other very well.

What can we do about it?

I get it: in an adversarial  system that includes duties of loyalty and diligence to clients who are shouldering serious problems, it can be difficult.  But it’s not impossible.  And sometimes the little things can make the all difference.

Last night, a lawyer shared a story. He recently went to a mediation with a client.  The opposing lawyer was one he’d known for decades, but hadn’t caught up with in a long time.  The mediation was stressful, and the lawyer continued to feel the effects of the stress that evening.

Then an email popped in.  It was from the opposing lawyer and said (and I paraphrase) “Hey, it was good to see you today. Hope you’ve been well.”

The lawyer who shared the story talked about how much it meant to receive the e-mail and how it relieved a good deal of the stress of the day.  He concluded by saying “it mattered to me.”

Which reminds me:

“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!”

A while back, I posted Don’t Be a JerkAs should be obvious, it’s a post in which I argue that we can do our jobs without being jerks to each other.  Indeed, nothing in the rules is incompatible with civility.  As a comment to Rule 1.3 says:

  •  “[t]he lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved with courtesy and respect.”

Courtesy and respect.  We need more of each in the air.

Make a difference to someone today.  It matters.

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

If the client gives informed consent, or, if doing so is impliedly necessary to carry out the representation, a lawyer does not violate the rules by:

  • A. disclosing information related to the representation
  • B.  charging an unreasonable fee
  • C.  A & B
  • D.  None of the above

Question 2

When a lawyer opens a pooled interest-bearing trust account, the rules requires the lawyer to notify the bank that:

  • A.  Interest must be paid to the Vermont Bar Foundation.
  • B.  ACH transactions are prohibited on such accounts.
  • C.  the lawyer cannot deposit her own funds in the account, even to cover bank charges
  • D.  All of the above

Question 3

Attorney represents an organization in a matter.

Opposing Counsel knows that Attorney represent the organization in the matter.

Without Attorney’s permission, Opposing Counsel discusses the matter with a former employee of the organization.

Which is most accurate with respect to the Rules of Professional Conduct?

  • A.  Opposing Counsel violated the rules.
  • B.  Opposing Counsel did not violate the rules.
  • C.  Attorney violated the rules.

Question 4

Lawyer called me with an inquiry.  My response included telling Lawyer that the rule suggests that she must take “reasonable remedial measures.”  Most likely, Lawyer called to discuss the rule on:

  • A.  Competence
  • B.  Trust accounting
  • C.   Unauthorized Practice of Law
  • D.  Candor to a Tribunal

Question 5

There’s a lawyer who has been in the news an awful lot the past few years.  Last month, he was forced to give up control over his own law firm after being accused of bankruptcy fraud.

Specifically, he is alleged to have used various & nefarious accounting maneuvers to hide over $10 million in legal fees to keep from having to pay them to his firm’s creditors.

Name the lawyer.

 

Don’t Threat On Me

I am not a fan of lawyers who threaten other lawyers with disciplinary complaints.

Actually, I take that back.  It’s their threats, not the lawyers who make them, that I don’t like.

Image result for hate the game not the player gif

Last week, an appeals court in Texas upheld a lower court’s order imposing a 4-month probated suspension on a lawyer who threatened another with a disciplinary complaint solely to gain an advantage in a civil matter.  Law360 (sub. req.) reported the story.  The opinion is here.

Background: on behalf of a company he owned, Lawyer sued an insurance company for refusing to pay a claim after a fire. An issue at trial was why Lawyer had waited so long to report the claim.  He argued that he’d delayed reporting on the advice of counsel. So, the insurance company sought testimony and discovery from Lawyer’s counsel, prompting Lawyer to assert the attorney-client privilege. Attorneys for the insurance company made several arguments that Lawyer had waived the privilege, including the crime-fraud exception.

At Lawyer’s request, the court held an evidentiary hearing on the crime-fraud exception.  The court found that it applied.  The trial of the coverage claim resumed.

When it did, Lawyer threatened one of the insurance company’s attorneys with a disciplinary complaint.  Specifically, on a Friday, and referring to the attorney’s allegation that Lawyer had engaged in a crime or fraud, Lawyer sent an e-mail in which he threatened a disciplinary complaint:

  • “unless, by noon on Monday, you announce in open court that you now realize that there was no factual basis for your allegations, and that you are sorry for having made them and that you now withdraw them ENTIRELY.”

Lawyer continued:

  • “If you do make the above statement – the language of which will have to be agreed upon – I will release you and [your firm] from all potential liability in connection with the statement you made and will agree not to file a grievance against you or [your firm] with the state bar or related authorities.”

Lawyer concluded:

  • “Think about it carefully.  Choose wisely.”

Now, Vermont doesn’t have a rule that specifically prohibits threatening a disciplinary complaint to gain an advantage in a civil matter.  Rather, we have Rule 4.5, which prohibits presenting, or threatening to present, criminal charges to gain an advantage in a civil matter.

Texas, however, has a rule that specifically applies.  It’s Texas Disciplinary Rule 4.04(b)(1):

  • (b) A lawyer shall not present, participate in presenting, or threaten to present (1) criminal or disciplinary charges solely to gain an advantage in a civil matter.

Lawyer argued that he made the threat to clear his name and, therefore, it was not made “solely” to gain an advantage in the civil trial.  He also argued that “gain an advantage” means a quid pro quo in which he’d have received something in return for not filing the complaint.

The court rejected each argument. With respect to the latter, the court noted that Lawyer gained the advantage of distracting the opposing attorney from focusing on preparing and presenting his case.

Now, the fact that Vermont’s rules don’t specifically prohibit threatening another with a disciplinary complaint shouldn’t be taken as a sign that it’s a good idea.  As the Texas court concluded:

  • “Threatening to use the criminal or disciplinary process solely to coerce a party in a private matter improperly suggests that a lawyer can manipulate the criminal process for personal gains and manipulate the legal system for personal advantage.”

The court noted that the suggestion of such improper influence is an “abuse” of the system that lessens public confidence in the profession.

File and Let File.

Don’t threat on me.

 

 

 

 

 

 

 

Wellness v. Well-Being

It’s Wellness Wednesday!  Or, better yet, it’s Well-Being Wednesday.

At tomorrow’s Mid-Year Meeting of the Vermont Bar Association, I’m presenting a CLE that will include a discussion of attorney wellness.  The seminar will open with a look at the recommendations made by Vermont Commission on the Well-Being of the Legal Profession in its State Action Plan.

The Commission grew out of a report from the National Task Force on Lawyer Well-Being: The Path to Well-Being: Practical Recommendations for Positive Change , a report, in turn, that grew out of the ABA/Hazelden study that found ““substantial and widespread levels of problem drinking and other behavioral health problems in the U.S. legal profession.”  You can read more about the Hazelden study here.

In short, the study showed that the profession isn’t well. It suffers from a behavioral health problem.  That’s wellness, or more to the point for the profession, a lack thereof.

Well-being is different.  To oversimply, I view it as the proactive steps we take to stay healthy & happy. While funding a Lawyers Assistance Program that will help lawyers who are facing serious health issues is important, so is well-being.  As they say, an apple a day.

Here’s a great example.

On Monday, an attorney called me with an ethics inquiry.  I’m all about mixing business with pleasure, so we also chatted about basketball.  Specifically, tomorrow’s UVM v. Florida State game in the opening round of the NCAA tournament.  Tip-off is at 2:00 PM in Hartford, CT.

Vermont

The attorney told me that she’s going.  She’s taking her son.  When he initially asked, the attorney’s reaction was something like “I can’t miss a day of work.”  But, then, the attorney said to herself “yes, I can.  This is exactly why I work for myself.”

That’s well-being.

As I’ve blogged, make time for what matters.  Family time matters.

Go Cats Go!

For more great ideas on well-being and how to make it part of your office culture, check out the ABA’s Well-Being Toolkit Nutshell: 80 Tips for Lawyer Thriving.  It’s a cool little flier that is chock full o’ tips and links to other resources.  Also, if you work in a firm, consider the ABA’s Well-Being Pledge. The list of signatories grows by the day.

 

 

 

Monday Morning Answers #155

I’m about to sanction myself for failing to detect a conflict.

Long ago, I agreed to speak at Thursday’s VBA Mid-Year Meeting.  The seminar falls on the same day that UVM plays an NCAA tournament game within driving distance.

Nice schedule-checking Mike.

Friday’s questions are here.  The answers follow today’s Honor Roll.

Honor Roll

Answers

Question 1

True or False.

A lawyer cannot be disciplined for trying, but failing, to violate the Rules of Professional Conduct.  That is, discipline can only be imposed for an actual violation.

Aside: imagine being too incompetent to be incompetent?

FALSE.  Rule 8.4(a).

Question 2

Which does not belong with the others?

  • A.  the time & labor required, as well as the skills requisite to perform the legal services properly
  • B.   continued representation will result in a violation of the rules.
  • C.   the lawyer is discharged.
  • D.   the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.

Answer “A” is one of the factors to be considered when analyzing the reasonableness of a fee.  See, Rule 1.5.  The other 3 require withdrawal pursuant to Rule 1.16(a).

Question 3

Lawyer called me with an inquiry.  I listened, then said: “it depends, did you receive information that could be significantly harmful to that person?”

My words “that person” refers to:

A.  a prospective client who met with, but did not retain, Lawyer.  See, Rule 1.18
B.  a prospective juror.  
C.  an opposing party who mistakenly emailed Lawyer
D.  a current client who intends to commit a crime

Question 4

Generally, a lawyer “shall not acquire a proprietary interest” in the client’s cause of action or in the subject matter of the litigation that the lawyer is conducting for the client.  There are two exceptions.

Name 1.

This is Rule 1.8(i)

  1. A lien authorized by law to secure expenses or a fee; or,
  2. A contingent fee in a civil case.

Question 5

Rule 1.1 requies an attorney to provide clients with competent representation.

Although he did not prevail on his argument, one of the more competent self-represented litigants in movie history was an Irish kid from South Boston.   He represented himself at an arraignment on a charge that he had assaulted a police officer, even arguing his own motion to dismiss:

  • Character:  There is lengthy legal precedent, your honor, going back to 1789, whereby a defendant can claim self-defense against an agent of the government, if that act is deemed a defense against tyranny, a defense of liberty.
  • Prosecutor:  Your honor. . .
  • Character:  Henry Lloyd Beecher in Proverbs from the Plymouth Pulpit, 1887 says, and I quote . . .
  • Prosecutor:  1887? This is the 20th century, your honor.
  • Character:  Excuse me, excuse me.
  • Prosecutor:  You’re making a mockery of the Court!
  • Character:  I’m afforded the right to speak in my own defense, sir, by the Constitution of the United States.  This is the same document that guarantees my liberty.
  • Prosecutor:  Hey, don’t tell me about the Constitution of the United States.
  • Character:  Now, liberty, in case you’ve forgotten, is the soul’s rights to breath.  And when it cannot take a long breath, laws are girded too tight.  Without liberty, man is a syncope.
  • Prosecutor:  Man is a what?
  • Character:  Ibid,  your honor.
  • Judge:  Son, my turn. I’ve been sitting here 10 minutes now looking over this rap sheet of yours.   I just can’t believe it.  June ’93, Assault.  September ’93, Assault. Grand Theft Auto in February ’94, where you apparently defended yourself by citing Free Property Rights of Horse and Carriage from 1798.  January ’95, Impersonating an Officer, Mayhem, Resisting. All overturned.  I’m also aware that you’ve been through several foster homes.  The State removed you from three due to physical abuse.  You know, another judge might care, but you hit a cop.  You’re going in. Motion to dismiss is denied.  $50,000 bail.
  • Character:  Thank you your honor.

Soon after the arraignment, Character was released to the supervision of a co-worker, an MIT professor.  Character’s conditions of release required him to attend therapy sessions with the professor’s college roommate, a psychology teacher at a local community college.

Name the movie.

GOOD WILL HUNTING

See the source image

 

 

Five for Friday #154

Less is often more.  That’s one of the reasons that I’m a fan of Irish understatement.

If you’re not familiar with Irish understatement, here’s how we refer to 30 years of devastating violence that, depending on one’s point of view, was either a freedom fight or terrorism: “The Troubles.”  Enough said.

Anyhow, I don’t know the names of many of my favorite Irish thinkers.  Most are people with whom I shared space in dimly lit pubs, doing our best to keep conversation to a minimum before heading our separate ways.

One of my favorites, however, is someone who I never met: Oscar Wilde. To me, Wilde’s  insight, intelligence and wit make him the master of Irish understatement.  I won’t bore you with Wilde quotes.  But one strikes me as particularly relevant to topics oft discussed in this space:

  • “There are only two tragedies in life: one is not getting what one wants, and the other is getting it.”

I suppose we could debate Wilde’s meaning.  Some might interpret it as a “tragedy” to achieve everything, only to realize that’s there’s nothing left to do.  You know, reaching a metaphorical mountaintop only to ask “is this it?”  Fair interpretation, but not mine.

To me, the message is a question that we must ask on the way to getting everything we want: “at what cost?” And the message applies to (at least) two different aspects of professional responsibility.

First, civility is a professional responsibility.  As I’ve blogged, Don’t Be a Jerk.  

I’m not the only lawyer who spreads that message. Twice a year, the Vermont Bar Association puts on its Basic Skills seminar. It’s an opportunity for new lawyers to satisfy the CLE requirement associated with admission to the bar.  I join many other dedicated lawyers to present on different topics and practice areas.

Almost to a person, we include the same message: Vermont is a small state.  The lawyer who is on the other side is one with whom you will likely deal often throughout your career.  Be civil, or it could come back to haunt you.  Stated differently, sure, you got what you wanted in THAT case, but at what cost?  The reputational hit might not be “tragic,” but it ain’t great either.

The second area to which Wilde’s quote applies is attorney wellness. I will not spend paragraphs rehashing the dozens of posts in which I’ve addressed the staggering toll that the profession takes on us.  Suffice to ask, at what cost to your emotional, physical, and mental health are you willing to achieve career goals?  Look no further than here and here for numbers that reflect the tragedy.

Oops.

I can hear the pins dropping.

Leave it to an Irish basketball coach who pines for summer to go all melancholy on a weekend that includes (1) the first sunny, warm Friday in ages; (2) UVM basketball playing for a spot in the NCAA tournament; and (3) St. Patrick’s Day!

I want to end this post on a more uplifting note.  Thankfully, there’s plenty of Irish-related material to do just that.

For instance, Wilde also said “true friends stab you in the front.”  I think it’s funny to use that quote in a post that appears on the Ides of March.  Et tu, Brute?!?!

Even more uplifting, especially during Lent, let me leave you with a story that reminds me of my brother and our Irish-Catholic relatives & friends:

shamrock

Michael moved into a tiny hamlet in County Kerry, walked into the pub and promptly ordered 2 beers. The bartender raised his eyebrows, but served Michael two beers, which he drank quietly at a table, alone. The next evening Michael again ordered and drank two beers at a time. Soon the entire town was whispering about the Man Who Orders Two Beers.

Eventually, the bartender asked what the town wanted to know. “I don’t mean to be prying but folks around here are wondering why your always order 2 beers at a time?”

“Ah, it’s odd, I know,” Michael replied. “You see, I have a brother, Patrick, back in the US. We promised each other that we would always order an extra beer, whenever we would partake, as a way of keeping up the family bond.” The bartender and the whole town were pleased with Michael’s reverence for family. 

One day Michael came in and ordered only 1 beer. The bartender served it with a heavy heart. Word flew around the hamlet quickly. Prayers were offered for Patrick’s soul. The next day, after Michal again ordered only 1 beer, the bartender said “folks around here, me first of all, want to offer our condolences to you for the death of your brother”

Michael pondered for a moment then replied, “I appreciate it, but I’m happy to report that Patrick is alive and well. It’s just that I, myself, gave up drinking for Lent.”

Onto the quiz and GO CATS GO!

Rules

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception – but one that is loosely enforced – #5 isn’t open book.  (“loosely enforced” = “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

True or False.

A lawyer cannot be disciplined for trying, but failing, to violate the Rules of Professional Conduct.  That is, discipline can only be imposed for an actual violation.

Aside: imagine being too incompetent to be incompetent?

Question 2

Which does not belong with the others?

  • A.  the time & labor required, as well as the skills requisite to perform the legal services properly
  • B.   continued representation will result in a violation of the rules.
  • C.   the lawyer is discharged.
  • D.   the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.

Question 3

Lawyer called me with an inquiry.  I listened, then said: “it depends, did you receive information that could be significantly harmful to that person?”

My words “that person” refers to:

A.  a prospective client who met with, but did not retain, Lawyer.
B.  a prospective juror
C.  an opposing party who mistakenly emailed Lawyer
D.  a current client who intends to commit a crime

Question 4

Generally, a lawyer “shall not acquire a proprietary interest” in the client’s cause of action or in the subject matter of the litigation that the lawyer is conducting for the client.  There are two exceptions.

Name 1.

Question 5

Rule 1.1 requies an attorney to provide clients with competent representation.

Although he did not prevail on his argument, one of the more competent self-represented litigants in movie history was an Irish kid from South Boston.   He represented himself at an arraignment on a charge that he had assaulted a police officer, even arguing his own motion to dismiss:

  • Character:  There is lengthy legal precedent, your honor, going back to 1789, whereby a defendant can claim self-defense against an agent of the government, if that act is deemed a defense against tyranny, a defense of liberty.
  • Prosecutor:  Your honor. . .
  • Character:  Henry Lloyd Beecher in Proverbs from the Plymouth Pulpit, 1887 says, and I quote . . .
  • Prosecutor:  1887? This is the 20th century, your honor.
  • Character:  Excuse me, excuse me.
  • Prosecutor:  You’re making a mockery of the Court!
  • Character:  I’m afforded the right to speak in my own defense, sir, by the Constitution of the United States.  This is the same document that guarantees my liberty.
  • Prosecutor:  Hey, don’t tell me about the Constitution of the United States.
  • Character:  Now, liberty, in case you’ve forgotten, is the soul’s rights to breath.  And when it cannot take a long breath, laws are girded too tight.  Without liberty, man is a syncope.
  • Prosecutor:  Man is a what?
  • Character:  Ibid,  your honor.
  • Judge:  Son, my turn. I’ve been sitting here 10 minutes now looking over this rap sheet of yours.   I just can’t believe it.  June ’93, Assault.  September ’93, Assault. Grand Theft Auto in February ’94, where you apparently defended yourself by citing Free Property Rights of Horse and Carriage from 1798.  January ’95, Impersonating an Officer, Mayhem, Resisting. All overturned.  I’m also aware that you’ve been through several foster homes.  The State removed you from three due to physical abuse.  You know, another judge might care, but you hit a cop.  You’re going in. Motion to dismiss is denied.  $50,000 bail.
  • Character:  Thank you your honor.

Soon after the arraignment, Character was released to the supervision of a co-worker, an MIT professor.  Character’s conditions of release required him to attend therapy sessions with the professor’s college roommate, a psychology teacher at a local community college.

Name the movie.