Monday Morning Answers #160

Welcome to Monday!

Friday’s questions are here.  The answers follow today’s Honor Roll.  More importantly, readers have spoken.  The most popular choice to rule Westeros when Game of Thrones ends?

Sansa Stark.

Honor Roll

Answers

Question 1

Limited representations can be a tool to increase access to legal services.  Per the Vermont Rules of Professional Conduct, a lawyer may:

  • A.   not limit the scope of the representation.
  • B.   limit the scope of the representation but may not bill for the limited services.
  • C.   limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.  V.R.Pr.C. 1.2(c)
  • D.  B & C

Question 2

Rule 4.2 prohibits communication with a represented person on the subject of the representation unless the other lawyer consents or the communication is authorized by law.  When it comes to a represented organization, the rule applies to a constituent of the organization:

  • A.  who supervises, directs, or regularly consults with the organization’s lawyer concerning the matter.
  • B.  who has the authority to obligate the organization with respect to the matter.
  • C.  whose act or omission with respect to the matter may be imputed to the organization for the purposes of civil or criminal liability.
  • D.  All of the above.  V.R.Pr.C. 4.2, Comment [7]

Question 3

True or false.

There is an absolute prohibition on advertisements that truthfully report a lawyer’s achievements on behalf of clients.

FALSE. Per V.R.Pr.C. 7.1communications about a lawyer’s services cannot be misleading.  According to Comment [2], truthful statements about prior results “may be misleading if presented so as to lead to a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without references to specific factual and legal circumstances of each client’s case.”

Question 4

Which do the rules treat differently than the others?

  • A.  a client’s personal check in the amount of $1,499
  • B.  a check drawn on another lawyer’s IOLTA account.
  • C.  a check drawn on an IORTA account of a Vermont licensed real estate broker
  • D.  a check issued by an insurance company licensed to do business in Vermont

As a rule, a lawyer may not disburse funds from trust unless the funds are “collected funds.”  V.R.Pr.C. 1.15(f)There are exceptions to the general rule.  And choices, B, C, and D are among the exceptions listed in Rule 1.15(g), the rule that allows lawyers to disburse in reliance upon certain types of deposits.  To disburse in reliance upon the deposit of a client’s personal check, the check cannot exceed $1,000.  Thus, “A” is treated differently than the others.

Question 5

Not ABBA, but a few years earlier . . .

Immigration and cannabis seem to be in the news a lot.

Many years ago, a couple had come to the US to search for the woman’s child.  The child had been abducted by the woman’s former husband.  The man who came with her was a musician and had previously been convicted in the United Kingdom of possession of cannabis resin.

For various reasons, President Nixon ordered the Justice Department to deport the couple. Thanks in large part to their lawyer, the couple prevailed in court and eventually secured green cards and permanent status.

At the time, the couple was, arguably, the most famous couple in the world.  Yet the lawyer they hired had never heard of them.  In addition, per the ABA Journal, the lawyer “didn’t know when accepting the case . . . that he and his clients were facing a five-year legal battle that would eventually expose corruption at the highest levels of the Nixon administration and change the U.S. immigration process forever.”

Who were the lawyer’s famous clients?

Yoko Ono & John Lennon

Image result for images of john lennon and yoko ono

Five for Friday #160

Welcome to Friday!

Today you will have at least 160 chances to say something nice about someone or to someone.

Take a chance.  At least one.

John Havlicek died yesterday.  I woke up to the news this morning.  I was too young to remember watching him play.  However, for many years in the early days of email and chat rooms, “Hondo” was in my address and handles.  Also, Celtic fans of my vintage were raised on Johnny Most, Boston’s legendary radio announcer.  While we took particular joy in how he taunted the Pistons, Most’s most famous call came before we born, when “Havlicek stole the ball.”

But this column isn’t about Havlicek, the Celtics, or basketball.  It’s about a thought expressed by one of Havlicek’s former teammates and how that thought relates to a thought I had upon learning last night that a Vermont lawyer had passed away.

ESPN ran this tribute to Havlicek.  It quotes his teammate, Dave Cowens:

“Everybody says nice things about you when you die. I wish they said them to John when he was alive. John was always overlooked. They never talked enough about him,” former teammate Dave Cowens said.

Isn’t that true well beyond sports stars?

Laurie LeClair died this week.  As many of you know, Laurie was a lawyer. She was only 57.

I first met her when she worked for the VBA.  She coordinated CLE & communications.  As Bob Paolini told me this morning, she was Kevin Ryan & Jennifer Emens-Butler before Kevin & Jennifer.

I knew Laurie, but not well.  Many have told me that she was one of the smartest, brightest lawyers they know.

Laurie fell on some hard times.  For many years, life was not easy for her.  Again, I did not know her well and we were not close other than in that 21st century way: we were  Facebook friends.  I’ve probably talked to her only about 10 times in the past 10 years.

Yet,  even though I did not know her well, last night, when I heard the news, I resolved to say nice things about her at today’s meeting of VBA Board of Bar Managers.  When I woke up and read Cowens’ quote about Havlicek, it hit home:

The things I resolved to say about Laurie later today are things I didn’t say to her once over the past 10 years. Even when I had the chance.

The things I resolved to say about Laurie later today are things I didn’t say about her once over the past 10 years. Even when I had the chance.

Don’t be like me.  Don’t wait.  Take a chance and say something nice to someone or about someone.  If you’re anything like me, yeah, it can be awkward.  I can hear you now: “what if I can’t find the words? or they don’t take it the right way?”  To that I suggest, reverse the roles.

Haven’t we all experienced that moment when, during a tough time, someone takes the chance to say something nice and botches it?  We don’t get mad! We laugh through tears and say, “you dummy!” Then we give the person a big hug, thankful for the thought and effort, caring not a whit about the delivery.

Take a chance.  You’ll have at least 160 today.

And if it helps you build up the courage to do so, picture me under the disco ball that hangs in my basement (fact) karaoking ABBA.  If I receive enough reports of people taking a chance today, maybe I’ll take the chance to karaoke the song in public.

Oh, and by the way, as I type this blog, I’m in the State House cafeteria.  My mom, who lobbies, is a few tables away having coffee with some colleagues.  For now, she’s in the dark. But, as regular reader of this blog, she’ll soon learn that I have a disco ball and that I often stand under it singing along to a song she introduced us as kids.

Then, if you ask, I’ll have to answer yes, my mother does know.

Take a chance.

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

Limited representations can be a tool to increase access to legal services.  Per the Vermont Rules of Professional Conduct, a lawyer may:

  • A.   not limit the scope of the representation.
  • B.   limit the scope of the representation but may not bill for the limited services.
  • C.   limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.
  • D.  B & C

Question 2

Rule 4.2 prohibits communication with a represented person on the subject of the representation unless the other lawyer consents or the communication is authorized by law.  When it comes to a represented organization, the rule applies to a constituent of the organization:

  • A.  who supervises, directs, or regularly consults with the organization’s lawyer concerning the matter.
  • B.  who has the authority to obligate the organization with respect to the matter.
  • C.  whose act or omission with respect to the matter may be imputed to the organization for the purposes of civil or criminal liability.
  • D.  All of the above.

Question 3

True or false.

There is an absolute prohibition on advertisements that truthfully report a lawyer’s achievements on behalf of clients.

Question 4

Which do the rules treat differently than the others?

  • A.  a client’s personal check in the amount of $1,499
  • B.  a check drawn on another lawyer’s IOLTA account.
  • C.  a check drawn on an IORTA account of a Vermont licensed real estate broker
  • D.  a check issued by an insurance company licensed to do business in Vermont

Question 5

Not ABBA, but a few years earlier . . .

Immigration and cannabis seem to be in the news a lot.

Many years ago, a couple had come to the US to search for the woman’s child.  The child had been abducted by the woman’s former husband.  The man who came with her was a musician and had previously been convicted in the United Kingdom of possession of cannabis resin.

For various reasons, President Nixon ordered the Justice Department to deport the couple. Thanks in large part to their lawyer, the couple prevailed in court and eventually secured green cards and permanent status.

At the time, the couple was, arguably, the most famous couple in the world.  Yet the lawyer they hired had never heard of them.  In addition, per the ABA Journal, the lawyer “didn’t know when accepting the case . . . that he and his clients were facing a five-year legal battle that would eventually expose corruption at the highest levels of the Nixon administration and change the U.S. immigration process forever.”

Who were the lawyer’s famous clients?

Image result for images of abba take a chance

 

Talking culture, compliance, confidences & candor.

Flashback to 1994:  I was a brand new attorney.  Another attorney in my office mentioned Shelley Hill.  I asked, “who’s Shelley Hill?”  The attorney responded, “someone you never want to hear from.”

Back then, Shelley was Vermont’s disciplinary prosecutor.  The attorney’s answer to my question was the extent of the ethics guidance I received in my first ever job as a lawyer.

Legal Ethics

We’ve come a long way.  It’s no longer taboo to talk legal ethics.  We talk it.  A lot.  Not only does it help us do better for our clients, it improves the image of the profession.  To that end, one of my goals as bar counsel is to foster an ongoing and open dialogue about legal ethics and professional responsibility that helps to build a culture of compliance that we put out there for the world to see.

Reflective of the today’s world, the conversation happens in many forums.**  Today, I woke to having been mentioned in a tweet by a lawyer who was concerned by the news that Nikolas Cruz’s public defender disclosed Cruz’s potential inheritance in a motion to withdraw from representing him in the criminal case.  The lawyer tweeted:

“i would be interested to learn the circumstances of the public defender of Nikolas Cruz disclosing to the court in Mtn to Withdraw and on the record that his client inherited $430,000 (VERY vulnerable to civil suit if not exempt) – seems a bit problematic, eh @VTBarCounsel?”

The entire string is here.

Look at us.  We are talking legal ethics in public! THAT is professional responsibility.

I’ve blogged often on client confidences and Rule 1.6.  Basically, my position is that lawyers should STFU.  Or, to borrow a quote from Thomas Edison that my Dad instilled in me as a kid:

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

Obviously, it’s far wiser to take my Dad out in public than his eldest son.

Anyhow, as indicated in my reply Tweet this morning, I don’t comment without hearing all sides to a story, not to mention that I have no idea what Florida’s rules are.  But it’s a great construct to use as a mini-refresher on Vermont’s rules.

By rule, “information relating to the representation of a client” is confidential.  The scope is broader than the privilege and includes all information related to the representation no matter the source.  Comment [3].  Such information shall not be disclosed unless:

  • the client gives informed consent to the disclosure;
  • disclosure is impliedly authorized to carry out the representation;
  • disclosure is required by paragraph (b);
  • disclosure is permitted by paragraph (c).

Returning to the Parkland case, if Vermont’s rules applied, the first possibility is that Cruz gave informed consent for his public defender to make the disclosure.

I’d be surprised if any of exceptions in paragraph (b) applied.  However, it’s possible that one of the exceptions in paragraph (c) applies.  That is, disclosure of the inheritance might be authorized by another rule.  Stay with me here.

This morning I did something rare: I did some research before I tweeted.  I learned that, as reported by the South Florida SunSentinel, a year ago Cruz’s inheritance was the subject of a hearing as to whether he qualified for public defender services.  Per the report, it appears as if it was represented to the court that Cruz stood to inherit far less than recent developments indicate.

If so, and again if Vermont’s rules applied, it’s possible that the new information required the public defender to make the disclosure pursuant to Rule 3.3.  The rule, entitled “Candor to a Tribunal,” requires a lawyer to correct a prior material statement of fact that was false.  Were the statements made in last year’s hearing on Cruz’s eligibility for public defender services “material” and “false?”  If so, one might argue that the public defender was required to make the disclosure in the motion to withdraw.

Finally, reading today’s reports left me with the impression that Cruz’s public defenders believe that, given the inheritance, the law precludes him from being eligible for their services.  Thus, it appears to me that they argued that they are required to withdraw.

In Vermont, Rule 1.16 governs withdrawal.  Perhaps most relevant here, Rule 1.16(a)(1) requires withdrawal when “the representation will result in violation of the rules of professional conduct or other law.”  So, it looks to me as if the argument is “by law, the inheritance prohibits us from representing him, thus withdrawal is required.”  The Florida courts will decide.

Aside: as some of you know from having called me or heard me speak.  When it comes to a motion to withdraw, I think it best to limit the motion to citing the text of whichever provision(s) of Rule 1.6 you’re arguing.  Then, if the court asks for more information, respond, but in such a way as to disclose no more information than is necessary to answer the court’s question.  Being mindful, the entire time, of a larger duty not to harm to your client’s interests on your way out.  Others may disagree with me, but that’s fine.

Indeed, that’s why it’s so important to continue to discuss legal ethics and professional responsibility.  The discussion makes us do better by our clients, the courts, and the profession.

Talk on.

** I couldn’t decide whether to go with “fora” or “forums.”  Flipped a coin.

 

Wellness Wednesday: sleep, Julia Louis-Dreyfus, and Game of Thrones.

Sometimes I post early, sometimes I post late.  I guess I’m the Nice & Smooth of legal ethics bloggers.

Today I meant to post early.  After all, it’s Wellness Wednesday, a huge day for this blog.

Alas, I didn’t.  But that doesn’t mean I wasn’t thinking about you! Indeed, this post has been on my mind nearly all day.

I went to bed early last night.  I anticipated being up later, but the Bruins game proved anti-climactic so I went to bed.  To me, it was PERFECT sleeping weather.  Meaning, I slept with the windows open and the covers drawn.

Does this ever happen to you?  You’re sleeping so well that you’re actually aware of how well you’re sleeping as you sleep?  I swear it happens to me.  Not often, but on occasion. And last night was one of those occasions.

Then I woke up.  Raring to go.  The birds were singing and I felt good.  Sure, it was still a bit dark, but that was probably just the clouds.

Except it wasn’t.  It was dark because it was 3:30 AM.

That NEVER happens to me.  Yes, I like to get up early, but I define “early” as 5:30.  As good as I felt, I wanted my 2 hours of sleep back!   Then, the irony struck me.

In response to last week’s Wellness Wednesday post, a friend/lawyer/reader sent me Americans aren’t getting enough sleep and it’s killing usIt’s an opinion piece that Dr. Jonathan Fielding contributed to The Hill.  I found it fascinating, but scary.

Give it a read.  It cites various studies that indicate that a lack of sleep causes health problems.  And, contrary to popular opinion, our bodies struggle to recover from sleep deprivation.  Meaning, “I’ll work all night tonight because I know I can sleep late Sunday” is not scientifically valid.  And, as Fielding writes, “All-nighters push anxiety to clinical levels and even modest sleep reductions are linked to increased feelings of social isolation and loneliness.”

Folks, that’s attorney wellness.  Get your sleep.  Let your associates get theirs.

Alas, this morning, I didn’t fall back asleep.  Rather, I made the mistake of checking scores, then email and –  yada yada yada – the next thing I knew the coffee was brewing.

There was, however, a silver lining.

When I checked my email, I saw a notification that Professor Bernabe had posted a new blog. Given that the post focused on two topics near & dear to my blog –  the duty of competence & fictional lawyers – it was a great way to start the day! Check it out.  (My favorite voir dire (fictional or real) of an expert witness begins at the 8:13 mark in the video.)

The post put me back in a good mood, the early wake-up banished to the dusty corners of a memory bank that seems to consist of nothing but corners.  In other words, reading the post increased my well-being. Thanks Professor! Further evidence of why you’re always on the #fiveforfriday Honor Roll!

Reading the post also got me thinking: I haven’t blogged about tv or movie lawyers in a while. And, for me, doing so is a source of wellness.  So, I started searching the dusty corners – have I watched any blog-worthy fictional lawyers lately?

Not really.   Recently, I’ve been into HBO.  I re-upped a few weeks ago to catch up on Game of Thrones. When not catching up, I watched a bunch of episodes of Barry and 1.5 episodes of Big Little Lies. 

The former?  I know it has won a ton of awards, but I don’t love it.  The latter, I loved the book. Despite its critical acclaim, I’m worried that the show won’t live up.  So, as with most of my relationships, I’m starting by showing the show a lot of lukewarmth.

Besides those two, I binged on Veep.  More accurately, re-binged, I LOVE that show.  JLD has long been a favorite.  Of course, I liked her in Seinfeld.  And, as should be obvious by her numerous appearances in my real-life and #fiveforfriday quizzes, I thought she was fantastic as the ethically-challenged prosecutor Maggie Lizer in Arrested Development. 

But she ROCKS as Selina Meyer.  (some of you can probably guess who she reminds me of)  And, Jonah, Gary, and Richard make me laugh out loud.

Alas, Veep provides no lawyers to write about.  Yes, Selina was a lawyer before entering politics.  And Richard holds a doctorate in constitutional law and is an expert on the electoral college.  Still, nothing inspired me to write about either.

That leaves Game of Thrones.  No, no character’s official profession is “lawyer.”  I submit, however, that Samwell Tarly is the show’s functional equivalent thereof.  If anything, he’s a veritable expert in parentage actions! Still, he’s nothing to blog home about.

So, having increased my wellness by using legal ethics as an excuse to write about tv shows, and having started to blather on even further than could be fairly described as “rambling,” I’ll get to the point.

I want to know what my readers think:  when it’s all said and done, who will sit on the Iron Throne?

The latest Vegas odds are here.  I can’t believe the line on Baelish. Intriguingly short!  And, my poll is here, with candidates listed in the same order as the betting odds. I was tired of typing, so I cut off the list after Brienne of Tarth (and actually left off a few between her and Varys).  Or, you can email me your theory/prediction.

I’m not sharing my vote.  I do have one prediction to share though: the Night King and his ice Dragon will not be at Winterfell Sunday night.  I predict they’ve headed south to attack King’s Landing.

Now, either vote, send me your prediction, or go to sleep.   It’s all wellness!  Even weller if you do all 3.

Hope you enjoyed your Wednesday.

P.S. if you can’t sleep, check out an old post on unethical lawyers from an HBO show: The Night Of:  Who Gets Disbarred First?

Image result for game of thrones images

Don’t Fear E-Filing

This year, the Vermont Judiciary will start the rollout of its Odyssey Case Management System (“CMS”).

In January, Judge Kate Hayes, Andy Stone (the Judiciary’s CMS Project Director) and me presented a CLE on the new system.  Our CLE opened the Vermont Bar Association’s YLD Thaw.  The VBA has graciously made the material available here.  Judge Hayes & Andy addressed practical issues, while I touched on ethics issues associated with e-filing.

This will sound odd coming from a blogger who built this blog on the mantra “competence includes tech competence.”  But, with respect to the ethics issues associated with the new CMS, my message is this:

  • Don’t get too caught up in the tech aspect of it.  The fact is, your duties will be no different than in a paper-based system.  That is, the duty to provide clients with competent representation will include understanding what the rules of electronic filing require.

On that note, I have good news.

E-filing isn’t new.  It was introduced in the state courts in 2010.  In addition, many of you practice in the federal District Court and Bankruptcy Court.  E-filing is a thing in each.  In all my time here, I’ve received fewer than 3 complaints alleging that a lawyer’s lack of tech proficiency negatively impacted a client’s matter.

The Vermont Judiciary has adopted rules for electronic filing.  As I understand it, a committee is looking at prposed changes to the rules.  If and when those changes are made, they will be available on the Judiciary’s website.

The CMS rollout will progress in stages.  That is, the Judicial Bureau, the Environmental Unit, the Supreme Court, and the various units (counties) will come online over time.  As courts in which you appear transitionto CMS, you should familiarize yourself with the rules for electronic filing.

Fear not.  Remember: fewer than 3 complaints.

Also, when it comes to technology, it’s usually not “tech” that gets a lawyer in trouble. It’s using tech to do something that would’ve been unethical if done without tech.

For instance, lawsuits against stooge defendants are a problem whether filed electronically or on paper.

(The same post includes a digest of cases & opinions in which lawyers were sanctioned for disclosing client confidences in response to negative online reviews.  Remember, it’s not the fact that the confidences were disclosed online that’s the problem: it’s that they were disclosed!)

Similarly, as I blogged here, comments that would’ve been inappropriate in a telegram to a client are no less inappropriate because they were made via Messenger.

Which gets me to final point: whether by smoke signal, spoken word, typed document, or electronic submission, dishonesty is unethical.

Preparing for the Montreal seminar, I asked attorney regulators in states that have moved exclusively to e-filing to share with me any cases in which lawyers were disciplined for conduct involving “e-filing.”  Here are some of the responses:

  1.  “The worst ethical dilemma/violation I have experienced with e-filing involved a recently terminated associate from a Regional Workers Comp Firm.  He called me to tell me that once his firm terminated him a managing partner ordered a surviving associate to ‘pull all his files and draft and e-file Motions to Withdraw stating [the terminated lawyer] is no longer with the Firm…’  The Partner then directed the associate/assistant to e-file the Motions under terminated attorney’s name and file with [the terminated lawyer’s] e-file credentials!!!!  Terminated attorney received email notifications on several Motions and Orders granting the Motions before he was able to call the Clerk’s office and state that someone was filing under his name without his permission.”

Yes, believe it or not, impermissibly using another lawyer’s e-filing credentials, and forging that lawyer’s e-signature, is a problem.  And it’s a problem that has little to do with “tech.”

2.  “We have had a couple of instances of one lawyer allegedly e-signing opponents                   counsel to an unagreed to stipulation.”

Yes, believe it or not, fraudulently “signing” opposing counsel’s name is a problem.  And it’s a problem that has nothing to do with “tech.”

3.  “Mike, here’s one for you … a lawyer ‘e-filed’ a declaration with the expert signing            electronically (“/s/”) … but the lawyer knew the expert refused to sign … our court              suspended the lawyer for 90 days.”

Yes, believe it or not, fraudulently “signing” an expert’s name to a declaration that you know the expert had refused to sign herself is a problem.  And it’s a problem that has nothing to do with “tech.”

Finally, I became aware of a case in which a United States Bankruptcy Court (not Vermont’s) raised concerns over a lawyer’s lack of proficiency at filing electronically.  So, the court assigned the lawyer “homework.”  The “homework” was to re-file 9 documents, without any mistakes, and without assistance from another lawyer.

The lawyer paid another attorney to file the documents.

As a result, the bankruptcy court suspended the lawyer from practicing before it. Again, intentionally disobeying a court order has little to do with “tech” or “e-filing.”

Will e-filing be new to some of you? Yes.

Will you have to learn things along the way?  Yes.

Will some of you need help figuring out how to e-file?  Yes.

Is mandatory e-filing likely to put your license at risk?  No.

As I’ve indicated, it’s not e-filing itself that trips up attorneys.  Rather, it’s engaging in conduct that would’ve been unethical at every moment in the entire history of a regulated practice of law.

Don’t fear tech.  Don’t fear e-filing.

Image result for images of e-filing

 

 

Monday Morning Answers – #159

Happy Monday!  Friday’s questions are here.  The answers follow today’s Honor Roll.  Congrats to all on it, with a special s/o to first-timer Melinda Siel!

Honor Roll

Answers

Question 1

By rule, a lawyer shall not make an agreement for, charge, or collect an unreasonable fee.

True or False: if a client confirms a fee agreement in writing, it is presumed reasonable.

FALSE – Rule 1.5 speaks for itself.  Also see this blog post.  Finally, as the Vermont Supreme Court said here: attempting to justify a fee by arguing that the client agreed to it

  • “. . . demonstrates [the lawyer’s] failure to comprehend the effect of Vermont Rules of Professional Conduct 1.5(a);  lawyers, unlike some other service professionals, cannot charge unreasonable fees even if they are able to find clients who will pay whatever a lawyer’s contract demands.”

Question 2

By rule, which other rule or rules are relaxed:

“When a lawyer, under the auspices of a program sponsored by a non-profit or court, provides short-term legal services to a client without expectation by the lawyer or client that the lawyer will provide continuing representation  in the matter.”

  • A.  The rules on conflicts of interest.  Rule 6.5
  • B.  The rule that requires competent representation
  • C.  The rule that requires candor to the court
  • D.  The rules on safekeeping client property

Question 3

By rule, there are two exceptions to a general prohibition on contacting certain people.  The exceptions are:

  • 1.  if the person is a lawyer; or,
  • 2.  if the person has a family, close personal, or prior professional relationship with the lawyer.

These are the exceptions to the rule that prohibits a lawyer from contacting a:

  • A.  represented person
  • B.  juror
  • C.  former constituent of a represented organization
  • D.  prospective client, by in-person, live telephone or real-time electronic contact, when a significant motive for doing so is the lawyer’s pecuniary gain.  Rule 7.3(a)

Question 4

Lawyer has a conflict.  Therefore, Lawyer moves to withdraw.  Trial court denies the motion and orders Lawyer to continue the representation, notwithstanding that good cause exists to terminate the representation.  By rule, Lawyer must:

  • A.  Appeal
  • B.  Continue the representation.  Rule 1.16(c).
  • C.  Self-report to disciplinary counsel
  • D.  The rule is silent

Question 5

Speaking of how things were different way back when, there was a time when law schools were not required to teach professional responsibility/legal ethics.  Identify the event that resulted in the American Bar Association deciding that legal ethics/professional responsibility should be a required course in law school.

Watergate.

Image result for images of watergate

Five for Friday #159

Welcome to Friday!

Earlier this week, I posted a blog in which I mentioned that spring is a time of renewal. If today’s post accomplishes anything, I hope that it spurs even just one reader to reach out to his or her first friend.

Today’s post won’t do justice to the person it honors.  So, I’ll couch it by saying this: the intro to today’s quiz is but an intro to my lifelong friendship with Dave LaBerge. It is not the full story thereof.  Rather, it is a blurb on why “159” and my drive to work made me think of Dave this morning.

Dave and I have been friends since 2nd grade.  We’re so old that, back then, Rick Marcotte Central School was just “Central School,” and Mr. Marcotte was our principal.

I grew up on Heath Street, which was close enough to Central that I was a “walker.”  Along with my brother and the Morin boys, we’d walk to school via Williston Road, not veering off until we got to Al’s French Frys.  A path behind Al’s provided a shortcut to school.

Again, that’s how old we are.  We grew up in a time when school districts and parents allowed elementary school kids to walk along Williston Road.

Dave grew up on Beacon Street.  A bit further away, so he took a bus to school.  Thankfully, the “bus/walker” divide was not too great to keep us from becoming friends.

As kids, and besides to school, Dave and I biked everywhere we needed to go.  Again, a sign of our age: we always biked without helmets, often without holding the handlebars, and, at times, with one riding on the other’s handlebars.  What awful, neglectful parents we had!

Here’s a map of our world.  My house, 28 Heath Street, is in the middle.  Dave’s, 28 Beacon, is to the right, just below & behind the Guild Tavern.  Central School isn’t listed on the map, but it’s between Al’s French Frys and Mary Street.

By high school, our world had both constricted & expanded.

Constricted in the sense that we consolidated our headquarters: my family moved to 28 Victoria Drive, a house so close to Dave’s that neither of us could get up to full speed on our bike before arriving at the other’s.

Expanded in the sense that our bikes took us to places farther and farther from Williston Road.

This morning reminded me of our expanded base of operations.

I live in Williston.  Sometimes, like today, I take the interstate to work.  When I do, I pass the “Whales Tails.” I’m sure many of you have seen them:

whales tails sculpture

They always remind me of Dave and our bikes.

If you’re driving north on 89, the Whales Tails are on your right.  On the left, directly across 89, is a quarry.  It was a popular swimming spot in high school.  The water was cool, crystal clear, and the leap from the ledge was a rite of passage in South Burlington.

Dave and I went to the quarry often.  Almost always by bike.

The Whales Tails weren’t there then, but we’d cut thru that field to get to the quarry.  At almost the exact spot where the Tails sit, we’d hop off our bikes and run them across the interstate to the quarry.  To get home, we’d make the exact same sprint in the other direction.

Kids running their bikes across the interstate to jump off cliffs into a quarry.

I don’t know why, but whenever I drive by the Whales Tails, I think of Dave and laugh at how different times were back then.  Or maybe the “times were different” prop is nothing but a defense mechanism to avoid admitting “we were idiots!”

Because we were idiots.  Not only for running our bikes across the interstate, but in a way that (sort of) relates to the number 159.

Dave and I played football and basketball together. In high school, our coaches let the players list our heights and weights for the roster.  Desperate to appear big & strong, Dave and I always listed ourselves as “5’9, 150.”

Talk about “aspirational.” It might’ve been accurate if, while measured and weighed, Dave sat on my shoulders and we were soaking wet from having spent an afternoon swimming in the quarry.

I’m starting to ramble.  I’ll leave it at this: on the way to work today, I was trying to come up with something related to “159.”   Driving by the Whales Tails and remembering our “5’9” lie** made me think of Dave.  Here’s to that friend you’ve had forever, the one who will always be part of you.

And, if you’re ever up at Lake Willoughby, consider staying at Will-O-Wood Campground.  If you do, say hi to the owner and tell him you’ve read a bit about the bike adventures he had with that idiot Mike Kennedy.

I guarantee he’ll laugh.

Onto the quiz!

** As Hal Miller (frequent member of the Honor Roll) points out, it wasn’t a lie, it was puffery! Which is totally ethical!

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

By rule, a lawyer shall not make an agreement for, charge, or collect an unreasonable fee.

True or False: if a client confirms a fee agreement in writing, it is presumed reasonable.

Question 2

By rule, which other rule or rules are relaxed:

“When a lawyer, under the auspices of a program sponsored by a non-profit or court, provides short-term legal services to a client without expectation by the lawyer or client that the lawyer will provide continuing representation  in the matter.”

  • A.  The rules on conflicts of interest
  • B.  The rule that requires competent representation
  • C.  The rule that requires candor to the court
  • D.  The rules on safekeeping client property

Question 3

By rule, there are two exceptions to a general prohibition on contacting certain people.  The exceptions are:

  • 1.  if the person is a lawyer; or,
  • 2.  if the person has a family, close personal, or prior professional relationship with the lawyer.

These are the exceptions to the rule that prohibits a lawyer from contacting a:

  • A.  represented person
  • B.  juror
  • C.  former constituent of a represented organization
  • D.  prospective client, by in-person, live telephone or real-time electronic contact, when a significant motive for doing so is the lawyer’s pecuniary gain.

Question 4

Lawyer has a conflict.  Therefore, Lawyer moves to withdraw.  Trial court denies the motion and orders Lawyer to continue the representation, notwithstanding that good cause exists to terminate the representation.  By rule, Lawyer must:

  • A.  Appeal
  • B.  Continue the representation
  • C.  Self-report to disciplinary counsel
  • D.  The rule is silent

Question 5

Speaking of how things were different way back when, there was a time when law schools were not required to teach professional responsibility/legal ethics.  Identify the event that resulted in the American Bar Association deciding that legal ethics/professional responsibility should be a required course in law school.

the-quiz

 

 

 

Attorney Wellness: We’ve Only Just Begun

My first post on lawyer wellness appeared just over three years ago.  Since then, I’ve posted almost 40 more.**  There have been many others in which I mentioned the topic without focusing an entire post on it.

When my brother and I were kids, we didn’t control the music in the house.  Our mom did.  One group that received a lot of air time: The Carpenters.  

Yes, I’ve posted a ton on attorney wellness.  Yes, this winter, the Vermont Commission on the Well-Being of the Legal Profession released its State Action Plan.  Comparatively, we are ahead of the curve in addressing attorney wellness.

Yet, today, I’m reminded of the title of a song by The Carpenters.  In our house, I’m fairly certain the song was played until the 8-track wore out: We’ve Only Just Begun.  

Image result for the carpenters we've only just begun images

Here’s what reminded me of the song.

Last November, Above The Law posted Burnout, Flame Out, Or Timeout?  The post was spurred by the fact that a lawyer named Paul Rawlinson had “taken a leave of absence to recover from the sheer exhaustion of running the second-largest law firm in the world.” In the post, author James Goodnow pitched an argument I’ve often made, albeit in a way much more eloquently than I.  He wrote:

  • “If the classic answer to the increasing demands of the legal marketplace has been to get tougher, let me once again advocate for a new approach: getting ‘realer.’ We need to let go of the outdated concept of the inhuman, never-tired, always-working hero attorney and replace it with the vision of actual human beings, because that’s what we all are. We’re people, with physical and mental limitations, lives and families outside of work, and interests beyond briefing, drafting, and billing hours. We need to take better care of one another, at all levels, and take better care of ourselves.”

Flash forward to very sad news.  Paul Rawlinson, the attorney who took the leave of absence?  He died last Friday.  Above The Law reported on his passing.

Rawlinson’s death crystallized a thought that’s been nagging me since the State Action Plan issued: we’ve only just begun.

Have we raised awareness? Yes we have, and it’s a damned good thing that we have.

But it’s not enough.

The work continues.  As Goodnow argued, we must get “realer.”  And, every one of us has a role to play in making the profession healthier and more hospitable to its members.  Whether volunteering with the Vermont Lawyers Assistance Program, asking your firm to consider the ABA Pledge to Focus on Well-Being, not being a jerk to adversaries, taking a VBA CLE on mindfulness, or simply taking off one more afternoon this summer than you did last, we all have a role.

It will not suffice if, a few years from now, someone finds the State Action Plan and muses “I wonder what ever became of this.”

Indeed, what better time than now?  It finally looks and feels a bit like spring, a season of of renewal.  Today is a perfect day to renew, or at least to seed, a committment to well-being.

Not sure how? Don’t worry! A great place to start is with the ABA Well-Being Toolkit.  It’s chock full o’ good stuff.  For instance, consider this from the Toolkit:

  • “We are happiest and healthiest when we adopt healthy work habits and lifestyle choices. Importantly, though, we won’t be successful on our own. Well-being is a team sport.”

It goes on:

  • This means that, if we truly desire to improve wellbeing, we can’t focus only on individual strategies like making lawyers more resilient to stress; it is equally important (if not more so) to focus on systemically improving our professional cultures to prevent problems from developing to begin with. We are interdependent in that our organizational and institutional cultures—to which we all contribute and which, in turn, shape us all—have a huge impact on our individual well-being. When our cultures support our well-being, we are better able to make good choices that allow us to thrive and be our best for our clients, colleagues, and organizations.”

Finally, and consistent with the theme that we’ve only just begun:

  • This Toolkit is designed to help lawyers and legal employers improve well-being holistically and systemically. This goal will require new choices, considerable effort, and changes that likely will upset the status quo. Positive change agents might meet
    with resistance—including complaints that there is no room, time, resources, or need for change. This Toolkit offers reasons for prioritizing lawyer well-being
    as well as information, strategies, and resources for implementing a plan for positive change.”

We’ve only just begun.  Will there be Rainy Days and Mondays?  Hell yes.  Lots of them.  But, each small step towards a healthier profession brings us closer to the feeling of being on Top of The World.

Thanks Mom!

_________________________________________________________________________________________

** The posts:

(Wellness Wednesday Posts)

(Un)Reasonable Fees

Quick:  which is correct?

Vermont’s Rules of Professional Conduct specifically

  • A.   require reasonable fees;
  • B.   prohibit unreasonable fees.

It might be a distinction without a difference, but when crafting the #fiveforfriday quiz or trivia-style CLE events, there are only so many ways to ask the same questions over and over again.  So, it’s a question to which I’ve resorted often.

The answer?

B. prohibit unreasonable fees.

It’s Rule 1.5(a):

“A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses.”

The rule goes on to list “[t]he factors to be considered in determining the reasonableness of a fee.”  Notably, those factors DO NOT include “whether the client agreed to it.”

Ultimately, the Vermont Supreme Court determines whether an attorney’s fee violates Rule 1.5.  As the Court explained in paragraph 16 of this decision, a lawyer charged with violating Rule 1.5 will not find safety in the harbor named “but the client signed a contract agreeing to my fee.”

  • “This argument demonstrates [the lawyer’s] failure to comprehend the effect of Vermont Rules of Professional Conduct 1.5(a);  lawyers, unlike some other service professionals, cannot charge unreasonable fees even if they are able to find clients who will pay whatever a lawyer’s contract demands.”

I found myself thinking of the Court’s statement earlier today when I read about the law firm that sought a $9.75 million “bonus fee” in a divorce case.  The Chicago Tribune and the ABA Journal reported the story.

Per the Chicago Tribune, the firm “sought the bonus fee under a 2015 retainer agreement with [the client], which allowed for additional fees beyond the hourly bill to cover such things as ‘time and labor required, the novelty and difficulty of the questions involved, the skills requisite to perform the legal services properly.’ ”

The judge denied the request.  She also referred the matter to Illinois disciplinary authorities after concluding that the fee was unreasonable.

I’ve not seen the court’s decision or the firm’s contract with its former client.  However, I was struck by the report that the fee agreement “allowed for additional fees beyond the hourly bill to cover such things as ‘time and labor required, the novelty and difficulty of the questions involved, the skills requisite to perform the legal services properly.’ ” (emphasis added).

In Vermont, the first factors listed among those to be considered in determining the reasonable of a fee appear in Rule 1.5(a)(1).  They are:

  • “‘time and labor required, the novelty and difficulty of the questions involved, the skills requisite to perform the legal services properly.”

It’s not clear to me that quoting the rule creates any safer of a harbor than the client’s signature on the fee agreement.  That is, a court will decide whether the amount billed is justifed by the time and labor, the novelty & difficulty, the skills required to perform the services, or any of the other factors listed in Rule 1.5(a).

For now, I think it’s important for Vermont lawyers to remember that, even when the client agrees to a fee, the fee remains subject to review for reasonableness.

Errrrrr, I mean, for unreasonableness.

Dollar Sign