Five for Friday #165

Welcome to Friday!

With Memorial Day in the rearview, I took a drive today.  Time to emancipate.

Whoops…wrong blog.

What I meant to say is that with Memorial Day in the rearview, I intended to use today’s intro to remind you that, while not even here yet, summer will be over before we know it.  I expected to remind you to make time to enjoy it.

Honestly, I hope summer provides you with time for family, friends, and relaxation.  The things that matter.  But, through personal experiences, I want to share some caveats.

First, if summer isn’t your thing, that’s fine!  As I mentioned in Reach Out, Check Inspring & summer are exceedingly difficult for many.  Far less serious, but still to my point, I’m reminded of Kenny.

I love Kenny. Awesome dude.  He claims to be my cousin – we aren’t – but that’s a story for another day.  Kenny LOVES to ski.  He had more than 100 days on the slopes this past season.  Skiing – and winter – is his wellness.   Summer?  He works about 100 hours a week at a golf course.  Hard, hot, dirty work, but work that frees up his winters.  The fact that I’d prefer just the opposite doesn’t mean that Kenny is wrong or unwell.  It means he’s true to himself.

I’m a creature of summer.  Kenny is a creature of winter.  Both are ok.  Be you.

Second, don’t judge your summer by others’.  Here’s something that the Wisconsin Lawyer Assistance Program posted to Instagram a few days ago:


For the next few months, pictures of friends & colleagues having what appear to be grand ol’ summers will clog your social media feeds.  Don’t be jealous.  Don’t hope that they’re not having as much fun as it looks.  Most importantly, don’t consider their posts a reflection on you and your life.   I deal with this often with someone close to me. It makes zero sense – and is unhealthy – to compare your life to someone else’s digital moment that may or may not reflect reality.

Next, do what you want, not what you think others will approve of.

For many summers, I told myself I had to spend a week in either Maine or on the Cape.  After all, that’s what everyone else does.

I never did.  Often, just thinking about NOT doing what others had done caused me stress and anxiety.  I’d wonder what was wrong with me.  Why hadn’t I booked a week on the coast?  The stress of finding the idyllic summer getaway always ended in me never getting away, stuck in a Labor Day funk beating myself up over another wasted summer.

No more.  Last summer, I didn’t even consider a formal “vacation” somewhere out of state. Instead, I decided that every weekend, I’d drive somewhere in Vermont and go for a long run.

I loved it.  Every part of it.  I loved being on the road early: sunroof open, coffee in the console, tunes blaring.  I loved the runs – seeing parts of the state that I’d never otherwise see. I loved my post-run swims in lakes, ponds, and rivers.  I loved my post-swim-post-run stops at local breweries.  Most of all, I loved being back home that night.  On my deck, grill fired up, those local brews in a chilled glass.

Is that for everyone?  No.  But it’s what’s good for me.  Do what’s good for you. Not what you think others will “like” as good for you.

My final point is this: if you have something “big” planned this summer, enjoy the other moments too. I’ve often found myself so wrapped up in the anticipation of a future event – say a race or a trip – that I forget to make time to enjoy life as it happens along the way.

For instance, in July, my brother and I are going to Chicago for a half marathon and a Cubs game. It’s going to be great.  But it’s almost 2 months away!

I resolve not to get so focused on a late-July weekend as to lose sight of all the weekends to enjoy between now and then.  You know, life’s a journey, not a destination.  Or, maybe what I’m saying is that rather than carving out a week of time for things that matter, I’m going to make a habit of making time for things that matter.  And it’s not just the big things that matter.

Well-being isn’t one size fits all.  However, aspects of it apply to each of us:

  • Be you.
  • Don’t compare yourself to others.
  • Do what works.
  • Make it a habit, one that doesn’t lose sight of the “small” things that matter.

Onto the quiz!


  •  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
  • 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

 Except as permitted or required by other rules, a lawyer shall not use information relating to the representation of a client to the disadvantage of the client:

  • A.  True and that’s end of it, there are no exceptions.
  • B.   Unless the client gives informed consent.

Question 2

 True or False.

If one of the Rules of Professional Conduct requires a “writing,” an email complies with the rule.

Question 3

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

  • “the first thing that the rule requires is that you not state or imply that you’re disinterested.”

Given my response, it’s most likely that Attorney called to discuss the rule on:

  • A.  Candor to a tribunal
  • B.   Trial publicity
  • C.   Dealing with an Unrepresented Person
  • D.   Pro Bono work

Question 4

Lawyer represents Plaintiff in a civil case.  Trial is scheduled to being Monday.

Lawyer called me this morning.  Lawyer told me that, yesterday, Lawyer learned that Witness intends to lie for Plaintiff.

Which is most accurate Vermont’s rule?

  • A.  Lawyer must explain to Plaintiff the risks of providing false evidence, then abide by Plaintiff’s informed decision whether to call Witness.
  • B.   Lawyer may refuse to call Witness if Lawyer reasonably believes that the evidence Witness will offer is false.
  • C.   Lawyer may call Witness, but not ask any questions. Witness must testify in the narrative.
  • D.   Lawyer must withdraw.

Question 5

Lawyer called.  Lawyer told me that Lawyer had been asked to get involved in a matter involving Person.   Lawyer explained that Lawyer had previously belonged to a country club owned by Person’s business.  Lawyer said that Lawyer’s family resigned their membership and asked for a refund of the membership deposit.  The club did not refund the deposit, but placed Lawyer’s family on a wait list to be refunded on a “first resigned/first refunded” basis.  As tends to happen no matter who owns these clubs, no refund has yet to be made.  Lawyer asked my thoughts on whether the refund issue posed a conflict that precluded Lawyer’s involvement in the matter.

Then I woke up!

Your task: Identify Lawyer who made an ethics inquiry in my dream.

I need better dreams.

Fake Lawyer Loses Job. Think deeper.

John Grisham’s The Rooster Bar is a novel.  That is, it’s a work of fiction.

Image result for the rooster bar images

The plot?

Without giving much away: three law students drop out of law school.  Under fake names, they pose as lawyers, open a law firm, and represent clients without ever having passed the bar exam or obtained law licenses.

Sometimes life imitates art.

Last week, an assistant public defender in Illinois was fired after a judge discovered that she did not have a license to practice law and had never passed the bar exam.  The law school grad had worked on “about 80 cases” since being hired last fall.  The ABA Journal,  Belleville News-DemocratEdwardsville Intelligencer and the Madison-St. Clair Record reported the story.

I considered posting this in the Was That Wrong? format.  For several reasons, I opted not to.  One of those reasons was my reaction to an aspect of the story,

Per the Madison-St. Clair Record, the non-lawyer’s former boss:

  • “said that he typically reviews the work of all staff, discussing with prosecutors and his own staff as to a defender’s competence.  There was ‘never anything that stood out to make me question her abilities,’ he said.”

Per the Edwardsville Intelligencer, the non-lawyer’s former boss “had no problem with [the non-lawyer’s] work . . . other than mistakes most new attorneys encounters.”

It makes me wonder: if she was providing competent legal services to her clients, what’s that say about the bar exam requirement?

Don’t get me wrong. I am not condoning the non-lawyer’s conduct.  It was infected with deceit and, as referenced in the news reports, might be criminal.  No matter our entry requirements, the privilege to practice law should be denied to people who lie to receive it and while exercising it.  Further, the non-lawyer’s decision to misrepresent herself as a licensed lawyer raises significant concern about her judgment, honesty, and trustworthiness.  If she’ll lie about having a law license, what else will she lie about?

But that’s a question for a character and fitness committee.

The fact remains that, for 8 months, she apparently provided competent representation to her clients despite never having passed the bar exam.

Small sample size?  Yup.  Maybe time would have proven she lacked minimal competence.

Still, I know for a fact that there are law grads here in Vermont who, unfortunately, have failed the bar exam too many times to be allowed to sit for it again.  Many did good, competent work in offices both pubilc and private while continuing to study to pass the exam.  In other words, despite track records of actual competence, track records of scoring too low on exams keep them from practicing law.  Most, understandably, have left the legal profession altogether.  I’m not sure why, but I can’t help but be reminded of this 2017 post in which I argued that we cannot let the perfect be the enemy of the good in the fight to increase access to legal services.

I started with Grisham.  I’ll end with Tolstoy, by way of Seinfeld and Edwin Starr.

In this scene, Elaine was wrong. The original title for War and Peace was not War, What Is It Good For?  Still, at least in the isolated incident involving the fake lawyer in Illinois, one might conclude that the bar exam was good for absolutely nothing.


Wellness Wednesday: Meet Alison, Shireen, Samantha, & Alison

Happy Wellness Wednesday!

I’ve often used Wellness Wednesday posts to introduce you to legal professionals who make time for interests outside the law and who are willing to share their thoughts on how those interests relate to their practices and wellness.

Today, with the Stanley Cup finals in full-swing, I’m thrilled to introduce you to 4 of Vermont’s hockey-playing lawyers:  Alison Bell, Shireen Hart, Samantha Lednicky, and Alison Milbury Stone.

Alison J. Bell    Shireen T. Hart  Alison Milbury Stone

I started my interview by asking each to respond to this email:

  • So, you’re a hockey playing lawyer.  I don’t know about you, but I’m often asked, “why’d you go to law school?”  Tell us how you got into hockey & your involvement with the sport now.

The answers fascinate me.  So much so that I contemplated stopping there.  Nevertheless, Alison, Shireen, Sam, and Alison were kind enough to answer follow-up questions as well.

Thank you to this fantastic foursome!

Any and all typos are mine.  Enjoy!

Alison Bell – Langrock, Sperry & Wool

Alison J. Bell

I started playing (a version of) hockey when I was 16 (for those counting, I am now almost 62). I grew up in a skiing/ski racing family in Stowe, so had never really skated. But one winter, there was literally no snow, and a bunch of us decided to play broom ball. Unlike some versions of that game, we used skates. My parents owned a convenience store, so I ordered a box full of regular brooms, chopped them at an angle in my high school shop class, and dipped them in fiberglass (I was a white water kayaker, with access to fiberglass, but that is a different story). Needless to say, the “sticks” weighed a ton, and were dangerous weapons. But we chased that ball around the rink, and I (sort of) learned to skate.

I first went to college at Bowdoin, then a men’s hockey powerhouse. There was no women’s team, but there was something called “Powder Puff Hockey” (seriously!). Some male students volunteered to coach, and I learned a lot about the game. But I still could not really skate.

I transferred to Harvard for my junior year, and some first-year women, who had actually played in boarding school, were agitating for a team. We were granted club status for my junior year and then, thanks to Title IX and an imposed need for parity, we became a Division 1 varsity team my senior year. My claim to fame is that I was the first-ever captain of Harvard Women’s Hockey, now a women’s hockey powerhouse. The first ever coach – Joe Bertagna – is now the head of Hockey East, and still a dear friend. We get invited to alumnae events as the OG, and get to share the dais with various Olympians, which is a thrill. I was recently honored along with other original players at the 40th anniversary of the Women’s Beanpot tourney, also a thrill.

As to the actual quality of hockey, my Harvard team was awful; we once lost by “two touchdowns and a field goal,” as Coach said. But we worked hard, had fun, and my teammates remain my friends, which is the best part of hockey (more on that below).

After college, I played and coached in a girls’/women’s program in Stoneham, MA for many years, while I was in law school and working in Boston. That was when I really learned to play. I had a specific epiphany, when I realized that the edges on my skates were the same as the edges on my skis, and it all clicked. My women’s team won a national championship at the Senior A level (that would clearly be B or C level today), and I helped to coach a U12 team to a national championship in Lake Placid, where Sandra Whyte (who would later play for Harvard and score the game winning goal in that first Olympic gold medal game) scored the only, winning goal, in the fourth overtime. That was a high point!

Moving back to Vermont, my husband and I coached all three of our kids in youth hockey, much to their dissatisfaction with being the coaches’ kids. I also played a lot of pick up hockey, both with women and coed, and frankly grew to dislike it. It is frustrating when you have an idea how the game should really be played and others do not. I was thinking about quitting, when a new opportunity arose. A guy named Ian Smith – who had been D3 player of the year at Middlebury and who is a natural teacher – offered to coach a team of women. We put a team together, and actually had practices once or twice a week, in addition to games. We learned so much, by focusing on more technical skills, game strategies, mental aspects, etc.

Though we no longer have a coach, that team continues to exist and play in the VWHO league. It is the best group of people (our rule is no drama!), ranging in age from early 20s to me, and they are my closest friends. There is such joy in being able to play a team sport, at a decent level, at this stage in life. I can actually say that all of the best things in my life have been connected to hockey, as I met my husband playing in a law firm league in Boston!

Shireen Hart – Primmer Piper Eggleston & Cramer

Shireen T. Hart

About 10 years ago, I was spending a lot of time in the stands watching my son play. A friend who was in the stands with me reached out to Dan McFall (played for the Winnipeg Jets and runs Full Stride Hockey) to put together a women’s intro to hockey group. About 20-30 of us showed up – all “hockey moms.”  Most of us were brand new to the sport – and skating too. At the end of the two-month session, we had the temerity to break into 2 teams and join an existing women’s league.

Our first season was not pretty. We were playing against women who had been skating since the time when they could walk. I had somehow convinced myself that I would be safer in net than skating out – given that I hadn’t mastered the hockey stop yet. I also figured that my less than stellar skating would be less obvious between the pipes – even though goalies are supposed to be the best skaters on the ice.

Fast forward to today, where I play pickup twice a week with a co-ed group that has been playing together for decades. I have met some of the most interesting and entertaining people through hockey. It is rare when I go out these days and don’t run into someone, I have at some time met on the ice.

Perhaps the most surprising outcome from taking up this kind of endeavor mid-life is what it has done for my all-around confidence or moxie. While there is still plenty of room for improvement, and I still consider myself a baby goalie, I thankfully can’t remember the last time I had to use double digits to count the goals I let in.  Goalies don’t pay to play hockey, but, looking back, my teammates probably should have charged me to play for the first several years.

By the way, Sam can attest to this. She played D on one of my teams several years ago and could not have been more gracious about my utter lack of know-how. Always a smile and positivity.

Samantha Lednicky – Murdoch, Hughes, Twarog & Tarnelli

That’s a good question, I remember taking skating lessons when I was really young (with figure skates first!) and skating on my town outdoor rink in the winter. I didn’t get into hockey until my sister picked it up and played on CVU’s first women’s hockey team.  When she graduated (she’s 5 years older) I inherited her equipment and asked to play CSB (a youth team) and then join the high school team. It was in high school where I discovered I had a passion for the game.

Although I was far from the best skater on the ice, I was probably one of the most determined and fearless (often ending up in the penalty box because I didn’t know how to stop).  At UVM I joined the women’s club team, which started out playing in the local Full Stride League in the fall and traveling to New England colleges in the spring.  Since women’s hockey was still relatively new, most colleges didn’t have developed club teams yet, so we found ourselves playing against whoever would agree to play us.  Notably I remember traveling with the whole team up to Quebec and playing in a tournament against all male teams whose average ages were 20 years older than us.

Once I moved on to law school in Boston I stopped playing, but one of my internships in law school brought me to the Burlington US Attorney’s Office where I was introduced to Barb Masterson who happened to be the captain for the “Switchblades” (the jerseys were sponsored by Switchback Brewery) an all-women’s hockey team.  Then after graduating law school and moving back to Vermont I started playing with the DRM Sharks and Vermont Vixen.  At one point I was playing three times a week, now I’m down to twice a week.  Somehow I manage to get myself to late night games, even when they start at 10:05PM and I have to be in court at 8:30AM the next day!

Alison Milbury Stone – Assistant Attorney General

Alison Milbury Stone

I’d say I didn’t have a choice, but my rebellious younger sister proved otherwise by signing up for basketball. By then it was too late for me.

Hockey is part of the fabric of my family, and I can’t remember being introduced to it, only that it was always around. My dad played for, coached, and managed the Boston Bruins, and later coached and managed the New York Islanders. My mother was the leading scorer for the first Colgate University women’s hockey team. I grew up playing street hockey and pond hockey with my two older brothers. We spent a lot of time at the old Boston Garden, watching games and practices and playing in the bowels of the old building. I played on boys teams until I was about 11, when a regional girls team was formed (and then I played with both the boys and the girls).

Hockey has taken me many places. One of the first was Phillips Exeter Academy in New Hampshire as a high school freshman (among other draws, they had a girls team and two sheets of ice).

Next was Brown University. There, the Bears (dubbed the Pandas) were ranked #1 in the country, and we were Ivy League champs but lost the national final in an upset to the University of Minnesota. As a junior and a French major, I decided to study abroad in France, but made sure to pick a city (Lyon) that had a women’s ice hockey team. Unfortunately, they cancelled the season after a few training sessions, but as a consolation I joined their roller hockey team and was able to travel around France – to the Alps, Bordeaux, and then Lille for the national championships, where we clinched second.

After graduating from college, I bought a backpack for a round-the-world adventure. But as chance would have it, I went with my dad to the NHL entry draft that summer (in Nashville, Tennessee, of all places), and found myself sitting between the New York Islanders’ Swedish talent scout and Finnish scout at dinner. Both spoke Swedish, a language I had studied my senior year. They quickly decided that as a Swedish-speaking hockey player, it was imperative that I do a stint in Scandinavia, and they made good on their word to facilitate that. A few months later I moved to Stockholm, Sweden, where I suited up for the Allmänna Idrottsklubben (AIK) women’s team. I also got a day job at the Stockholm offices of the American law firm White & Case – the start of my career in the law. My team won the Swedish national championship, and I still have a gold Jofa helmet to show for it (though now it is a bit dinged up from my family playing with it and using it as a bike helmet).

I subsequently moved to Washington, DC, where I adopted the Washington Capitals as my second team and joined a beer league (coed by virtue of my participation). When I was considering Vermont Law School, a colleague introduced me to a female hockey player there. It turned out the VLS Swans were playing in a tournament the weekend I was to visit, and because it was their spring break, they were short on players. So, I suited up for the Swans before even enrolling. I took it as a sign that the school was a good fit.

Though I am now well past my hockey prime, I still play on two Burlington-area teams, both with Sam Lednicky: a co-ed team, the DRM Sharks (Sam and I are both Downs Rachlin Martin alums) and a women’s team called the Vermont Vixen. We play against Alison Bell in the women’s league. This year I made my fourth appearance at the Lake Champlain Pond Hockey Tournament in Mallet’s Bay. I am now also a proud hockey mom as my oldest child, 4-year-old Ned, just finished his first season.

MK:  Fantastic stories! I’m in awe.  Do you remember what made you burn to be a lawyer? These days, I wonder if one of the challenges of “attorney wellness” is keeping that fire lit.  How do you as lawyers make sure that the drive that landed you in law school continues to push you? Are there lessons from hockey?

Alison Bell:  I did not have a burning desire to be a lawyer, but I knew I wasn’t going to medical school, and I didn’t know what else to do. I did work as an investigator under some superb lawyers after college and before law school, so that encouraged me to apply.  But I have always been driven by social justice issues, even since childhood, and that keeps me going as a lawyer. I am fortunate enough to work in a firm that supports such efforts, both in our own work and in involvement with other organizations and causes. As I look at “retirement” I am thinking about using my legal skills in the service of a cause. Not sure any of this relates to hockey, other than the general idea that sports teach perseverance.

Shireen Hart: I consider myself new to hockey (and probably always will), so I am still developing my skills. I tend to focus on one different skill or strategy over the course of several games until muscle memory kicks in. I then turn to another new skill or strategy.

In my law practice, I try to push myself in a similar way. While I can certainly continue to do the work I have been doing for more than 2 decades, I am making myself step out of my comfort zone to take on new types of cases within health law – the most recent being serving as a Patient Care Ombudsperson in bankruptcy cases and representing a court-appointed receiver for several long-term care facilities. This new work has not only rejuvenated my practice, but it has also offered me additional skills to apply throughout my health law practice.

Samantha Lednicky:  I started undergrad as a psychology major, got involved in various research projects and found myself interviewing juveniles at Woodside as a research assistant studying risk/reward deficits in youth.  It was then that I realized I was bound to be in a courtroom helping criminal defendants and not in a research lab. Every day that I’m in court or meeting directly with clients I am reminded why I became a lawyer.  The feeling I get with direct client contact and courtroom time is the same feeling I get on the ice—an excitement to be there and a determination to do well.

Life gets busy and client needs can be demanding.  It’s easy to put your head down just to get through the day, that’s when I think lawyers suffer the most and burn out.  If hockey has taught me anything it’s keep your head up and skate hard to the net.  Practicing law it’s equally as important to keep your head up and work hard towards your goal.  But you have to maintain a work life balance, just as in hockey, you can’t skate every day of the week you need a rest day.  I recently had a particularly tough day in terms of the subject matter of the cases I was working on, and I reminded myself that it’s okay to take a break and I took some time for myself by, you guessed it, playing hockey!

Alison Milbury Stone:  Same formula: do something you are passionate about, that plays to your strengths, and do it with good people. Also, leave room for other things in your life so you can have balance and not burn out!

I went to law school because I was concerned about environmental degradation and wanted to be part of the solution. I love reading and writing, am very detail-oriented, and enjoy some healthy competition, so I settled on environmental law and policy as a way to marry my strengths and interests. The environmental challenges and tensions that initially “lit that fire” still persist, and continue to motivate me to become the best advocate I can be.

The environmental field being a broad one, I’ve worked in a range of and the diversity of my work – in terms of substance areas as well as the mix of litigation and transactional matters – keeps things interesting. I still learn something new every day, and that’s very gratifying.

But equally important is that fact that I really like and respect my colleagues. In sport and at work, having strong leadership and supportive peers can make all the difference in the quality of the experience. In my current position at the Attorney General’s Office and in my most recent job in private practice, I’ve been lucky to work with skilled attorneys who are good team players and who I consider friends as well as colleagues. People who, before delving into work matters, ask how my weekend was and genuinely listen to the answer. And they elevate my game; just as a goal in hockey is made sweeter by a crisp set-up pass from a teammate, a brief that is improved by colleague’s adept edits is all the more satisfying.

Finally, I’ve been fortunate to work with people who value and promote wellness. When I worked with Leslie Cadwell, she would encourage me to walk my dog during conference calls on sunny days, and once surprised me by sending a NutriBullet to my house so my family and I could sneak vegetables into our morning smoothies. Attorney General T.J. Donovan still makes time for basketball, and Chief Assistant Attorney General Sarah London and Environmental Division Chief Rob McDougall do marathon training runs at lunch. That sets the tone for a culture where people feel they have the space to get out and exercise and come back to their desks refreshed and more focused (and it kind of feels like slacking if you don’t!).

MK:  Lately, I’ve spoken & blogged often on increasing reports that civility among lawyers is no longer a thing, so much so that it might be a cause of many lawyers’ anxiety & stress.

Bigger deterrent to lawyers who are rude & obnoxious: contempt of court, PRB disciplinary action, or an actual penalty box to which a judge might banish them for 2 minutes during a hearing.  Or, do the rest of us just keep on “killing ‘em with kindness?”

Samantha Lednicky: The great thing about hockey is you can get a penalty in the heat of the moment but at the end of the game you always go through and shake everyone’s hand.  As a lawyer, I think it should be required to look opposing counsel in the eyes at the end of a hearing, shake their hand, and thank them for their civility—maybe if we knew this was coming we would all be more civil.

Alison Milbury Stone: The genius of the penalty box is the shame that comes from sitting behind the glass in plain view, watching helplessly as your teammates play on short-handed due to your bad decision. We’d have to figure out how to do this without leaving the client high and dry during a hearing (a particular challenge if there is no co-counsel), but I think you’re on to something here.

Shireen Hart: I have not found player yet that can’t be broken down with some good locker room banter.

Alison Bell:  I love the image of a penalty box in the courtroom; it will never happen, but I bet it would work!

MK: There are 4 of you.  We need 2 more to fill out a team.  For each of you, who are the 2 “dream teammates” you’d add to fill out the team?

Shireen Hart: Both are women with whom I currently play. One plays D and is the kind of player who stands right next to me until everyone clears the area. I like to kid myself that I actually need that kind of protection. And, it doesn’t hurt that she is truly a fierce defender with a great slap shot – the kind of shot where everyone in the puck’s path dives away from it. The other is a woman who was apparently born with skates on her feet and a stick in her hand. I am truly awed watching her on the ice. She can put the puck wherever she wants and score on demand, but 9 times out of 10, she’s going to make the pass to set up a teammate instead.

Samantha Lednicky:  Kendall Coyne because she’s a badass. She’s on the US women’s hockey team and competed this year in the NHL (previously all male) skills competition, placing as one of the fastest skaters.

Cale Makar because he won the Hobey Baker this year and two days later played in his first NHL game and scored a goal.

Alison Milbury StoneOh, this is a tough one. Since Sam and I are both forwards, Alison B. plays defense, and Shireen is a goalie, I’ll be practical in terms of the lineup and pick one forward and one D.

With my first pick in the fictional draft, I select Bruins defenseman and captain Zdeno Chara. “Big Zee” is hands down the hardest worker I’ve ever met, a really nice guy, and an intimidating 6’9” before he even puts on his skates. You don’t want to be digging a puck out of the corner when he’s on the other team.

I also pick my former teammate Danijela Rundqvist, previously a member of the Swedish national team. She is a pure talent, a really positive and encouraging teammate, and fun in a mischievous kind of way, which is good for the atmosphere in the locker room.

Alison Bell: I would add my two daughters, both great players, because there is nothing better than playing with your kids.

MK:  Last question: Stanley Cup finals: Bruins, Blues, Don’t Care?

Alison Milbury Stone:  Bruins ALL THE WAY!

Alison Bell: Bruins. I have never worn socks in my skates, because I read Bobby Orr’s book as a kid, and wanted to be like him.

Shireen Hart: Bruins in 6.

Samantha Lednicky: BRUINS.

Thank you all again!  And let’s hope you’re right about the Bruins!

Boston Bruins Decal

Related Posts

Prior to today, Heather Moreau shared her Route 66 adventure, Jeff Messina and Andrew Manitsky talked about their respective bands, and Molly Gray reflected on her days as a competitive skier.

Also, before I ever imagined a “Wellness Wednesday” column, Elizabeth Kruska & Wesley Lawrence were kind enough to take the time to discuss their interest in horse racing, Scott Mapes talked soccer with me, and many lawyers & judges shared their marathon stories.

Monday Morning Answers

Happy Memorial Day.

Image result for images of memorial day

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

I stunk up the joint in yesterday’s Vermont City Marathon. As has become all too common for me, the first 18 or 19 miles weren’t an issue.  Then, the body stopped cooperating and I shuffled to the finish.

I spent those final miles and much of the post-race party telling myself, anyone, and everyone that it was my final marathon.  Never again am I putting myself through this!  Yet, I woke up this morning determined to find “a fast one” to run in early September before the deadline to qualify for the 2020 Boston Marathon.

So, depending on how you look at it:  either hope springs eternal, or, insanity is doing the same thing over & over and hoping for a different result.

Honor Roll

  • Matt AndersonPratt Vreeland Kennelly Martin & White
  • Penny Benelli, Dakin & Benelli
  • Geoffrey Bok, Esq.
  • Beth DeBernardi, Administrative Law Judge, VT Dept. of Labor
  • Erin GilmoreRyan Smith & Carbine
  • Bob Grundstein, Esq.
  • Mark HeymanGeneral Counsel, Logic Supply
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy, JB Kennedy Associates, Blogger’s Mom
  • Deb Kirchwey, Esq.
  • Elizabeth KruskaPresident-Elect (soon), Vermont Bar Association
  • John LeddyMcNeil, Leddy, & Sheahan
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Kevin LumpkinSheehey Furlong & Behm
  • Lon McClintock, Esq.
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Hal Miller, First American
  • Herb Ogden, Esq.
  • Jay Spitzen, Esq.
  • Zachary York, Vermont Superior Court, Chittenden Civil & Criminal


Question 1

You’re at a CLE.  You are re-reading Jake’s marathon diary because it’s so awesome. Still, your brain is vaguely aware of me saying things like:

  • it must be not be unreasonable;
  • it must be reduced to a writing that is signed by the client;
  • it must state whether expenses will be deducted before or after it’s calculated; and,
  • it must be based on the outcome of the matter.  If it’s based on an offer that the client rejects, at least one state’s Supreme Court has held that it’s unethical.

What was I discussing?

A contingent fee agreement.  See, this blog post and  V.R.Pr.C. 1.5(a) 1.5(c)

Question 2

By rule, a “prospective client” is one who, in good faith, discussed with a lawyer the possibility of retaining the lawyer.  Which is most accurate?

Per the rule, the lawyer shall not represent a client:

  • A.   with interests materially adverse to the prospective client.
  • B.   with interests materially adverse to the prospective client in the same or a substantially related matter.
  • C.  with interests materially adverse to the prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to the prospective client.
  • D.  None of the above.  We’ve yet to adopt any version of the ABA Model Rule on prospective clients.

This is Rule 1.18.  We adopted it in 2009 to address the fact that, under our old rules, prospective clients were neither fish nor fowl for purpoes of conflicts of interest.

Question 3

By rule, a lawyer may not settle a claim or potential claim for malpractice with an unrepresented client or former client.

  • A.  True.
  • B.  True, unless the client gives informed consent.
  • C.  True, unless the client gives informed consent, confirmed in writing.
  • D.  True, unless the client or former client is advised in writing of the desirability of seeking and is given a reasonably opportunity to seek the advice of independent legal counsel in connection with the matter.  See, Rule 1.8(h)(2)

Question 4

Having made this confession, it pains Me to say that I’m not a big fan of Taylor Swift’s new single.  Still, in her honor, one of these things is not like the other.   Which one?

The rule that requires a lawyer to:

  • A.  keep copies of advertisements for 2 years
  • B.  keep confidential information relating to the representation of client
  • C.  keep trust account records for 6 years
  • D.  keep the lawyer’s own funds separate from client funds

We repealed this requirement in 2009.  The others remain in the rules.

Question 5

He’s back!

There’s a lawyer who used to represent a woman whose real name is Stephanie Clifford.  This week, federal prosecutors alleged that the lawyer sent a “fraudulent and unauthorized letter” to Clifford’s literary agent in order to divert approximately $300,000 intended for Ms. Clifford.  Per Manhattan U.S. Attorney Geoffrey Berman:

  • “Far from zealously representing his client, [the lawyer] as alleged, instead engaged in outright deception and theft, victimizing rather than advocating for his client.”

You likely know the client by a name other than Stephanie Clifford.

Name the lawyer.  MICHAEL AVENATTI

Bonus: tell me the client’s more well-known name.  STORMY DANIELS

Among many other outlets, CNN has the latest here.

Image result for avenatti

Five for Friday #164

Welcome to #164!

Trigger warning: this post is long.  Before you hit “send” on the email to me complaining about how long, remember that nothing is stopping you from reading any further than here.

The Vermont City Marathon is Sunday.  I’m entered.  If I finish, it’ll be my 12th VCM and 21st overall.  To rest up, I’m about to turn this column over to a guest blogger.

Before I do . . .

. . . I haven’t always been a runner.

In 2006, a few of the friends I introduced to you in a blog about a long day in my basement asked me to run on their relay team in the marathon.  I agreed.  I had the good fortune of drawing the relay’s last leg: the adrenaline rush from running through a jam-packed Waterfront Park to the finish is addicting.  I’ve been hooked ever since.

Over the next two years, I built up to the full 26.2, completing my first full marathon in 2008.  The year in between? I ran on another relay team.  This time, with a team that included my good friend Jake Perkinson.

Jake is an attorney.  That’s not how I know him or why I like him.  Two of those same basement friends – Debbie & Little Sethie – used to have a post-marathon party every year.  In our younger days, we used the BBQ to pass the time between the marathon and nights at Esox that often devolved into disputes over whether dwindling dollars were better spent on another beer or another song from the bar’s fabled digital jukebox.  I met Jake at one of those post-marathon soirees.

Jake kept a diary of his training for our 2007 relay team. He sent it to us a few days after the race.  It is, beyond doubt both reasonable & unreasonable, my favorite work authored by a lawyer-runner.

With Jake’s consent – informed & confirmed in writing – I’m sharing it here today.  Jake’s self-effacing humor while recounting a foray into wellness is, itself, wellness.

Have a fantastic weekend!

Now, after too much ado, take it away Jake!



The True and Complete Diary of Pappy Perkinson’s Preparation for the 2007 Vermont City Marathon Relay Team


January 4, 2007:  Received an e-mail from Michael Moore (a/k/a Chooch) notifying friends of the impending registration deadline for the Vermont City Marathon, an event that has become a tradition among a certain circle of friends.  Feeling mildly (yet somehow pleasantly) disconnected from that circle, I reply immediately agreeing to participate.  Then, even more immediately, I put the matter out of mind for the next three months believing that the end of May will never come and, if it does, I will likely be dead anyway.  My confidence in this plan of action is so high that I dedicate no time at all to concocting the inevitably necessary excuses to use when I am forced to ultimately renege on this ill-conceived and precipitous commitment.

March 31, 2007:  A message from Chooch is left on the home answering machine requesting information to permit registration.  I studiously ignore this communication.

April 3, 2007:  While drinking a long-neck MGD and using the bottle cap to scrape the last bits of ice cream from a discarded (I believe prematurely) carton, I am informed by my wife, Cate, that I am not to make a joke out of running in the marathon.  I force myself to respond with a look of surprise mingled with hurt which causes me to choke on the bottle cap.  After performing the Heimlich maneuver on myself (Cate refusing all assistance), I tell Cate not to worry which she rightfully interprets as proof that I have no intention of making any serious effort.  Of course, she is right.

April 5, 2007:  I receive a call from Chooch regarding the particulars of registration.  After providing him with the description of a distant cousin for identification purposes, I inquire who will be on our team.  Chooch lists the runners which confirms that I am, indeed, the weakest link.  I know that even the exceedingly low expectations held for me will be impossible to meet and that no matter how low the bar is set it is a standard which I cannot achieve and which I am unwilling to attempt.  This preys on me for small parts of several days.


 April 9, 2007: 8:00 p.m.  My fear of dying on the course has gotten the better of my pride in slothfulness and I decide to go to bed at 8:30 so that I am able to get up refreshed at 5:00 a.m. to run before the children wake up and the household descends into mayhem.  To that end I carefully select my running gear and place it in an orderly pile at the top of the stairs so I can alight in the morning without disturbing my beautiful wife and children.

April 9, 2007 11:30 p.m.  I am awoken by the cries of an infant.  I pretend to still be asleep until Cate can no longer bear the noise and gets up to comfort the child at which point I act as though her movements have awakened me and roll fitfully over into the warmed-up spot on her side of the bed.

April 9, 2007 11:45 p.m.  I decide that if I am not asleep now, I will be too tired at 5:00 a.m. to do anything and turn off the alarm clock.  I fall asleep immediately.

April 11, 2007: 5:15 a.m.  I am awoken by the sounds of a high-pitched train whistle as interpreted by the deceptively powerful lungs of a three-year-old named Cyrus.  I know this means he will soon trundle his footy pajamas down to our bedroom, intentionally waking the infant on his way either by hooting loudly into her room or vigorously shaking the crib if evidence of her wakefulness is not immediately apparent.  When I hear his door open at 5:30 I leap out of bed and tell Cate that I am going for a run.

I quickly dress, feeling self-satisfied (whether about actually getting out to run or avoiding the task of dealing with two crying children at dawn I will leave to the reader’s own informed speculation).  As I step outside bracing for a cold blast of late winter wind, I am pleasantly surprised by the stillness of the air and a light humidity taking the edge off 20 degrees Fahrenheit.  Without stretching (not because I am foolish or lazy, but simply because I cannot) I begin my run.

Stepping out into the street I decide to meet this challenge head on and, rejecting the easy way, direct my feet UP hill.  As I begin, I feel I am magnificent, I am indomitable, I am supreme!  I glory in the early morning air and the feeling of the ground moving freely away beneath my feet.  A crescent moon is brightly lit in the pale gray southeastern sky, shouldering silent service as a witness to the graceful beauty of my ambulation.

And then it begins.  Twenty yards away from my house my throat dries out and after several more strides it begins to seethe as though something is trying to saw its way out of my neck using a cheese grater lubricated with battery acid.  Every breath is like swallowing a box of needles and every step is torture.  The pain induces a combination of nausea and dizziness that I have not experienced for over fifteen years absent alcoholic supplements.  In an attempt to psychologically urge myself onward I think back to my days as a youth when I reveled in the exhilaration of pushing my body to the breaking point and beyond.  And I thought to myself how stupid I was back then.

Despite the pain, I power through and, in a twist of unfathomable divine design, while my throat is a desert, my nose begins to fill with mucus.  I grimace and try to swallow to relieve the parched expanse of my throat but only choke on a bilious mixture of snot and thick saliva.  Now I am tired.  And uncomfortable.  But not defeated.  I give a stallion’s snort and hock a huge lugee with as much force as I can muster.  Unfortunately, given my physical condition, the missile barely clears my lips and plummets down the front of my sweatshirt, leaving a gray-green paisley stain.

After 200 yards I reach the top of the hill, expecting relief, only to look out from its summit at what always seemed to be a gently rising straightaway, now looming forbiddingly as a hideous and gross trick of nature.  “A hill on top of a hill!  This is bullshit,” I think to myself.  But I persevere and eventually reach the crest of this cunning confirmation of nature’s devilish duplicity.

As I approach the intersection capping this second rise I realize I have a choice to make.  I can turn now or push on for another 200 yards.  I make my decision quickly, resolving that if I go too far today, I might eliminate a goal that could otherwise motivate me tomorrow.  With a dramatic show of feigned regret, I turn my feet to the downward slope towards home.

Now my breathing is coming easier, and I concentrate on my form, keeping a four-count beat and raising my arms high.  I increase my speed and feel the wind blowing through my billowy locks.  Then, from behind, I hear the squeaking noise of rubber on asphalt and I am overtaken by a woman with graying hair outfitted in spandex pants and a knitted sweater who does not raise her hands above her hips when she runs.  As she trots past me I am given over to a surreal feeling of swimming through concrete.  I contemplate an attempt at increasing my speed, at least to keep her in sight for a minute or two, but then decide the wiser and more dignified course is to pretend I am engaged in a cool down exercise.  I consciously reduce my speed and pretend to stretch my upper body causing me to stumble and almost fall.  Realizing that any fall will crush me both mentally and physically and lead to an emotional death spiral I know I do not have the strength to recover from, I dispense with the cool-down ruse and return my full attention to running.  As I approach my house, my septuagenarian companion on this early morning run turns to climb the hill I started out on and breaks into a sprint, disappearing over the top before I reach the corner.

As I climb the steps to my house, I bend down with a monumental effort to pick up the morning paper and walk into a mudroom that on any other day sends shivers through my body with its ice-box coolness but which today feels like walking into a sauna.  I strip off my clothes, tearing at them like a madman and run a cold shower, nearly collapsing with a coughing fit before I am able to wedge myself into the stall for support.

I spend the rest of the day sweating, coughing and feeling a foreboding soreness in my lungs.  This is going to be great.  I can’t wait for tomorrow.

April 12, 2007:  1:30 a.m.  I am lying in bed, awoken once again by my own little piece of heaven fallen to earth.  As I attempt to turn over to pull the pillow over my head and drown out her nocturnal siren song I am suddenly seized with simultaneous shooting pains in my forearms, thighs, back and chest.  This fills me with a mix of emotion:  pain (obviously), but also, and to a much greater degree, relief, because here is my excuse not to go running in the morning.  My guilt wrestles momentarily with the more aggressive of my venal spirits and quickly gives up as Cate comforts the baby and I am able to fall gently back to sleep, safe in the knowledge that rest and recuperation is an important part of any training program.  I send thanks to Heaven for allowing me to formulate this rationale without the slightest strain at a moment’s notice and I am at peace with the World.

April 12, 2007:   6:30 a.m. (just after I should be finishing up my morning run) it begins to snow and the knowledge that I may likely lose another opportunity to run tomorrow briefly provides a toehold for my guilty conscience.  But, like a fantasy Battle of the Bands between Kiss and New Kids on the Block my darker angels push guilt off its precarious ledge and continue to pummel it on its woeful descent, making sure it does not ever think about getting up again.

May 2, 2007: 5:15 a.m.  The baby is visiting the bed so I am awake.  I feel strangely invigorated and lean over to whisper to my wife: “I’m going to go running.”  She responds: “I thought you were going to say you were going to get a beer.”  The baby smiles, drools and then starts crying so I shuffle down the stairs and launch another assault against Ledge Road.

This time I wisely cut off the ascent of the Ledge by detouring down Iranistan Road, still uphill, but a much gentler rise.  My lungs begin to seize and my throat provides a reprise of its past agitations by simultaneously constricting and drying out.  But not as bad as last time.  I make it about 2 miles on fairly flat streets.  When I get to the bottom of my street I break into a sprint and use my last remaining strength to reach my driveway.  As I attempt this last parry, the paper boy gives me a dirty look for holding him up.

The sprint nearly kills me and it takes a while to catch my breath.  Inside again I begin to feel ill and now have a pounding headache.  I hate Chooch.

May 22, 2007:  I realize that I am beginning to panic because I have not determined whether a five-kilometer run will kill me or not.  I start off again, gasping for air as usual, but find that after two miles I am still alive.  This is proof enough and I walk the rest of the way home.


Team I Hate Running did not finish last.  I believe I averaged 11 minutes per mile – not bad for three days of training over five months (especially considering how much I drank the day before).  Four days after the race my legs still hurt.  I can’t wait until next year.


Onto the quiz!


  • 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
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

You’re at a CLE.  You are re-reading Jake’s marathon diary because it’s so awesome. Still, your brain is vaguely aware of me saying things like:

  • it must be not be unreasonable;
  • it must be reduced to a writing that is signed by the client;
  • it must state whether expenses will be deducted before or after it’s calculated; and,
  • it must be based on the outcome of the matter.  If it’s based on an offer that the client rejects, at least one state’s Supreme Court has held that it’s unethical.

What was I discussing?

Question 2

By rule, a “prospective client” is one who, in good faith, discussed with a lawyer the possibility of retaining the lawyer.  Which is most accurate?

Per the rule, the lawyer shall not represent a client:

  • A.   with interests materially adverse to the prospective client.
  • B.   with interests materially adverse to the prospective client in the same or a substantially related matter.
  • C.  with interests materially adverse to the prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to the prospective client.
  • D.  None of the above.  We’ve yet to adopt any version of the ABA Model Rule on prospective clients.

Question 3

By rule, a lawyer may not settle a claim or potential claim for malpractice with an unrepresented client or former client.

  • A.  True.
  • B.  True, unless the client gives informed consent.
  • C.  True, unless the client gives informed consent, confirmed in writing.
  • D.  True, unless the client or former client is advised in writing of the desirability of seeking and is given a reasonably opportunity to seek the advice of independent legal counsel in connection with the matter.

Question 4

Having made this confession, it pains Me to say that I’m not a big fan of Taylor Swift’s new single.  Still, in her honor, one of these things is not like the other.   Which one?

The rule that requires a lawyer to:

  • A.  keep copies of advertisements for 2 years
  • B.  keep confidential information relating to the representation of client
  • C.  keep trust account records for 6 years
  • D.  keep the lawyer’s own funds separate from client funds

Question 5

He’s back!

There’s a lawyer who used to represent a woman whose real name is Stephanie Clifford.  This week, federal prosecutors alleged that the lawyer sent a “fraudulent and unauthorized letter” to Clifford’s literary agent in order to divert approximately $300,000 intended for Ms. Clifford.  Per Manhattan U.S. Attorney Geoffrey Berman:

  • “Far from zealously representing his client, [the lawyer] as alleged, instead engaged in outright deception and theft, victimizing rather than advocating for his client.”

You likely know the client by a name other than Stephanie Clifford.

Name the lawyer.

Bonus: tell me the client’s more well-known name.

Image result for vermont city marathon

Court Martials, Web Bugs, and Tech Competence

This blog was built on the idea that competence includes tech competence.  As I’ve hammered home that point over the years, I’ve touched upon the ethics issues associated with web bugs.

My most recent post on the issue is here: Don’t Let the Web Bugs Bite It discusses an advisory opinion issued by the Illinois State Bar Association. I wrote:

  • “The ISBA concluded that an attorney who uses email tracking software engages in dishonest & deceitful conduct, and impermissibly intrudes on opposing counsel’s attorney-client relationship.  As such, the use web bugs violates Rules 8.4(c) and 4.4(a). The ISBA’s conclusions track (pun intended) conclusions reached by New YorkAlaska, and Pennsylvania.”

Web bugs and legal ethics are in the news this week.  Navy lawyers prosecuting the high-profile court martials two former SEALS allegedly inserted email tracking software into emails sent to the defense team and media outlets.  The Military Times, the ABA Journal, the Guardian, and the Associated Press covered the story.

First, what’s a web bug?  For the purposes of this post, a web bug is email tracking software.

Ok, so why is that important?  Read the articles on the Navy cases.  The ABA Journal headline sums it up: “Defense lawyers accuse military prosecutor of sending them emails with tracking software.”

More specifically, imagine yourself representing one of the accused. Now, further imagine yourself receiving an email from the prosecutor.  An email that includes the type of tracking software at issue in the ISBA advisory opinion.  Per the ISBA:

  • “The present inquiry involves the use of email ‘tracking’ software, applications that
    permit the sender of an email message to secretly monitor the receipt and subsequent handling of the message, including any attachments.  The specific technology, operation, and other features of such software appear to vary among vendors. Typically, however, tracking software inserts an invisible image or code into an email message that is automatically activated when the email is opened. Once activated, the software reports to the sender, without the knowledge of the recipient, detailed information regarding the recipient’s use of the message. Depending on the vendor, the information reported back to the sender may include: when the email was opened; who opened the email; the type of device used to open the email; how long the email was open; whether and how long any attachments, or individual pages of an attachment, were opened; when and how often the email or any attachments, or individual pages of an attachment, were reopened; whether and what attachments were downloaded; whether and when the email or any attachments were forwarded; the email address of any subsequent recipient; and the general geographic location of the device that received the forwarded message or attachment.”

A few thoughts.

To date, nearly everyone agrees that it’s a violation of the Rules of Professional Conduct to insert web bugs into emails sent to an opposing party or counsel.

The SEAL story raises a perfect example of tech competence.   Earlier this month, one of the lead defense attorneys received an email from the prosecutor.  Unlike prior emails from the prosecutor, it contained an unusual logo below the prosecutor’s signature.  The logo was of a bald eagle and American flag perched on the scales of justice.  The image aroused the attorney’s suspicions.  So much so that he wrote to the prosecutor:

  • “I am writing regarding your emails from yesterday, which contained an embedded image that was not contained in any of your previous emails. At the risk of sounding paranoid, this image is not an attachment, but rather a link to an unsecured server which, if downloaded, can be used to track emails, including forwards. I would hope that you aren’t looking to track emails of defense counsel, so I wanted to make sure there wasn’t a security breach on your end. Given the leaks in this case, I am sure you can understand.”

Well, here we are.  Sometimes they are out to get you.

Finally, I want to reiterate a point I made when I first blogged about the Illinois advisory opinion.

I do not disagree with any of the four opinions that have concluded that a lawyer’s surreptitious intrusion into a privileged relationship violates the rules. However, I differ with one aspect of the Illinois opinion.

The ISBA noted that “there do not appear to be any generally available or consistently reliable devices or programs capable of detecting or blocking email tracking software.”  As I stated then, I am not certain that I agree.  Indeed, shortly after I posted my blog, several tech vendors who follow me on social media either commented on the post or reached out to me privately.  Without exception, they agreed that there are a host of reasonably available countermeasures for law firms to employ against web bugs.

Moreover, I think it’s risky for a lawyer to rely on the old “well, they shouldn’t be unethically spying on me.”

I agree, nobody should be spying on you. And, when it comes to web bugs and email traacking software, the spies might always remain one step ahead.

But that does not relieve you of the duty to stay abreast of developments in technology and to take reasonable precautions against the unauthorized access to or inadvertent disclosure of information related to the representation of a client.





Wellness Wednesday: Reach out, check in.

Granted, as a morning person and a creature of spring & summer, I’m biased. That being said, between the sun, the bluebird skies, and the temperature, it doesn’t get much better than this morning in Vermont.

Speaking of spring and summer . . .

. . . oh wait, before I go on: happy birthday Ben Traverse!  Ben has long contributed to others’ wellness, including mine. He was one of the earliest supporters of this blog, has a stellar record of providing pro bono services to clients unable to afford legal services, and, via his leadership role with the Young Lawyers Division, has served the past several years on the VBA’s Board of Managers.  If you know him, check in with him today to wish him well.

Speaking of checking in, back to our regularly scheduled blog.

If you’re at all like me, you associate spring and summer with an improved mood & outlook on life.  ‘specially ’round these parts, winter is long & dreary. So, as you enjoy a coffee on your porch with the only sounds being those of the birds, and as you revel in rolling the recycle bin to the curb without having to drag it thru slush, a morning like today’s lifts the spirits.  Spring, summer, and all the good that comes with each are finally here.

But not everyone feels the same.

Like Ben Traverse, Andrew Manitsky sits on the VBA Board of Managers and has long-supported this blog and the profession’s larger efforts on attorney wellness.  He’s a member of a PRB hearing panel and gets his wellness on by playing in a band.  Last weekend, Andrew sent me this opinion piece that ran in the New York Times.

Warning: it is a heavy read.

But it raises an important point: for some, spring is a time of despair.  Here’s the opening paragraph:

  • “It’s a popular and perhaps dangerous belief, reinforced by that inescapable Christmas classic “It’s a Wonderful Life,” that winter is the peak season for suicide. Yet experts have known since the late 1800s that it’s not true: More people take their own lives in the spring months than in other times of the year. No definitive explanations have emerged for why this is so.”

From there, the author shares a moving personal story. Then, concludes with a tip that all of us should consider.  Referring to spring, she writes:

  • It brings new pleasures by the week — asparagus in the farmers’ market, excitable toddlers in the playgrounds — and also a reminder to try to reach out to people who have lost someone recently, or those who seem withdrawn. They may need to be given a chance to talk about how they’re doing, and if things are very bad, encouraged to get the professional support they need. I can confirm that with time, help and love, things get better.”

Back to my original thoughts.

Speaking of spring and of checking in with someone, odds are that you know or work with an attorney who, if not struggling with significant behavioral health issues, is on the path towards the full-on struggle.  An attorney who has started to withdraw.

Reach out, check in.  As the author points out, sometimes that’s all it takes to make a difference for someone.

And, as regular readers of this blog know, I’m a big believer that we can make a difference, one person at a time.

Image result for starfish story printable pdf




An Improper Contingent Fee

I’ve used the past few Tuesdays to post on trust accounting.  I’m going off script today to call attention to a disciplinary case that strikes me as important.

Alberto Bernabe is a professor of law at the John Marshall Law School. Regular readers will recognize Professor Bernabe as a frequent member of this blog’s #fiveforfriday Honor Roll.  His Professional Responsibility Blog is a fantastic source of information on legal ethics & professional responsibility.

Yesterday, Professor Bernabe posted Tennessee Supreme Court imposes sanctions for improper contingency fee.  The opinion issued on May 13 and is here. The issue: whether a lawyer violated the rules by attempting to collect a fee that was based on a percentage of a settlement offer that the client rejected.

Before I get into the details, let’s review the rules that would apply if the issue arose in Vermont.

  • Rule 1.2(a) requires a lawyer to “abide by a client’s decision to settle a matter.”
  • Rule 1.5(a) prohibits a lawyer from agreeing to, charging, or collecting an unreasonable fee;
  • Rule 1.5(c) allows a fee that is contingent upon the outcome of a matter; and,
  • Rule 1.8(i) prohibits a lawyer from acquiring a proprietary interest in a client’s cause of action but allows (1) liens authorized by law to secure fees & expenses; and (2) contracts for reasonable contingent fees.

The facts of the Tennessee case:

Client filed a pro se complaint alleging that she’d been injured by the defendant’s negligence. Soon thereafter, Client retained Law Firm.  Client & Law Firm entered into a written fee agreement. Per the agreement, Client would pay Law Firm a contingent fee, plus expenses.  The amount: 40% if recovery were made before an appeal, 45% if recovery made after an appeal.  The fee agreement did not include any language that provided for an hourly fee.  It did, however, include this provision:

  • “Should [Client] refuse to make any settlement which my attorneys advise me is reasonable and should be taken, then I understand that I am responsible for their fee on the basis of that offer, unless they waive this provision.”

Following discovery, the defendant offered $12,500.  Attorney and another at Law Firm advised Client to accept. Client did not.

Attorney moved to withdraw.  In the motion, Attorney also requested a lien in the amount of $13,605 for fees, plus $2,4528.52 for expenses.  The motion asserted that Law Firm had put in 45.35 hours of work at $300 per hour.  The court granted the motion to withdraw but did not rule on the request for a lien.

Eventually, Client filed a disciplinary complaint.  By then, Attorney had filed two additional motions requesting a lien on any recovery.  The final request referenced the fee agreement and sought 40% of the settlement offer that Client had rejected.

At the trial level, a court concluded that Attorney violated Tennessee Rules 1.5(a), 1.5(c), 1.8(i).  The Tennessee Supreme Court affirmed and publicly reprimanded Attorney.

Some key points from the Tennessee Supreme Court’s opinion:

  • the “Settlement Offer Provision” created a fee that was contingent on Attorney recommending that Client accept a settlement offer, but not, as required by the rule, on the outcome of the matter;
  • the so-called “Settlement Offer Provision” was unreasonable in that had an impermissible “chilling effect” on Client’s decision whether to settle;
  • The “Settlement Offer Provision” impermissibly provided Attorney with a proprietary interest in any settlement offer that Attorney recommended Client accept; and,
  • The “Settlement Offer Provision” was unreasonable in that it by recommending that Client accept an offer, “Attorney thereby became entitled to a fee, regardless of whether [Client] accepted the offer and regardless of whether she obtained any recovery whatsoever.”

As noted by Professor Bernabe, Faughnan on Ethics blogged on the opinion here.  Like Bernabe, Faughnan is a terrific resources on professional responsibility.  The post notes:

  • “At its core, this case explains the limits on the ability of a plaintiff’s attorney to try to guard against what happens if their client rejects the attorney’s advice on whether to accept a settlement offer. There do, in fact, have to be limits on the ability to hedge against that because the ethics rules establish explicitly that the decision whether to settle a civil case or not is the client’s decision.”

The post goes on to remind us that, generally, the rules allow lawyers who withdraw “to assert a lien as authorized by statute and pursuant to either the terms of their contract or, perhaps, depending on how things turn out for payment in the form of quantum meruit.”

Again, this is a Tennessee opinion.  It’s worth noting, however, that the rules involved are identical to Vermont’s.






Monday Morning Answers

Welcome to Monday!

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

Honor Roll


Question 1

When a lawyer holds funds in which two or more persons claim interests, a rule specifically requires the lawyer:

  • A.   to resolve the dispute;
  • B.   to keep the funds separate until the dispute is resolved;
  • C.   to promptly distribute all portions that are not in dispute;
  • D.   B & C.  V.R.Pr.C. 1.15(e)

Question 2

Speaking of Watergate, if you’re at a CLE and hear me talking about a lawyer’s duty “to go up the ladder,” I’m most likely talking about a lawyer who represents:

  • A.  an organizationSee, Rule 1.13(b)
  • B.  both the insured and an insurance company in a civil case.
  • C.  a child.
  • D.  a client whose deadline to appeal is about to run, but who has not instructed the lawyer whether to file the appeal.

Question 3

Consider the following:

  • a reasonable belief that the lawyer will be able to provide competent & diligent representation to each affected client;
  • no assertion of a claim by one client against another represented by the same lawyer;
  • informed consent, confirmed in writing.

By rule, each of the 3 is relevant to what general question?

Each of 3 appears in Rule 1.7(b) and are relevant to whether a lawyer may represent a client notwithstanding a concurrent conflict of interest. 

Question 4

Is there a rule that specifcially addresses a lawyer’s ethical duties when serving as an arbitrator, mediator, or in any other such capacity to assist two or more persons who are not clients to resolve a dispute?

  • A.   No.
  • B.   No.  The Code of Judicial Conduct applies.
  • C.   Yes.  There’s a rule that applies to so-called “third-party neutrals.”
  • D.   Yes.  There’s a rule that applies to so-called “third-party neutrals” and a comment to the rule indicates that lawyers serving as such may also be subject to other codes of ethics.

It’s Rule 2.4.  Comment [2] mentions other codes of ethics. 

Question 5

I’ve often spoken on lawyer’s duty to provide competent advice related to a client’s preservation of electronically stored information that might have potential evidentiary value.

Recently, one of the world’s most famous athletes was named as a defendant in a wrongful death suit.  The athlete owns a restaurant that is also a defendant.  Central to the case is an allegation that the restaurant over-served an employee who drank at the bar after his shift, drove, and died in a car accident after leaving.

This week, the plaintiff’s lawyers accused the restaurant of destroying video of the decedent drinking at the bar in the hours prior to the fatal crash.

Who is the athlete?

Tiger Woods.    Yahoo! Sports has the story here.

Image result for images of tiger woods