The bar exam, a lawyer shortage, Suits, and a few thoughts on leaked essay topics.

Vermont’s administration of the Uniform Bar Exam begins today.  76 aspiring lawyers will gather at a hotel in Burlington.  As made clear by this piece that ran on WCAX yesterday, we need a lot of them not only to pass, but to stay in Vermont.

If you weren’t aware, Vermont switched to the Uniform Bar Exam in 2016.  Today, the examinees will tackle the Multistate Performance Test and Multistate Essay Examination.  Then, tomorrow, one of the last bastions of the #2 pencil takes center stage: the Multistate Bar Examination, aka “the multiple choice.”

I went into the nuts & bolts of the Uniform Bar Exam in more details in this post.   Also, last February, I posted this Q&A with the examiners.  Finally, talk about a bizarre situation: this past weekend, California bar authorities discovered that the essay topics might have been inadvertently revealed.  So, as I blogged here, they sent an email to all examinees informing them what the essay topics would be.

I understand that there was no good solution.  Logistically, it was far too late to postpone the exam or draft new questions.  Sharing the topics with everyone was likely the best way to level the playing field.

A gut reaction might be “it’d be great to know the topics!” I’m not so sure.

For instance, my personal choice would have been to get my studying done by last Friday, then take the weekend to rest, relax, and get my mind right for the exam.  I’d likely not have had the discipline – or courage – to stick to my approach if, on Saturday, I’d learned what the essay topics would be.  Rather, I’d likely have felt compelled to study them, even if I’d already done enough preparation on each over the past few months.

And what about the examinee who takes my approach and then got off the grid for the weekend?

Also, the essays are intended to distinguish examinees from each other.  For many years, I graded bar exams.  In my experience, some were fantastic, some awful, and the vast majority in the vast middle. It’s difficult to perceive and assign a distinction between the many that are solidly average.  I wonder whether the fact that all examinees know the topics will result in essays that are even more difficult to differentiate than in a normal year.

Finally, I look forward to the day when we have a full-fledged discussion as to whether a two-day test is the best way to determine who gets a ticket to practice law.  Maybe it’s the Mike Ross in me.  Or, maybe it’s the fact that we have evidence – albeit in an infinitesimal sample size – that success (or a lack thereof) on the bar exam is not necessarily the only predictor of competence.

Image result for mike ross suits images

 

Monday Morning Answers #171

Welcome to Monday!

Friday’s questions are here.  The answers (including to last weeks’ Final Jeopardy clues) follow today’s Honor Roll.

Honor Roll

Answers

Question 1

There’s a rule that prohibits a lawyer from disclosing information related to the representation of a client.  The rule encompasses:

  • A.  more information than is covered by the attorney-client privilege.  See, Rule 1.6, Comment 3(“The confidentiality rule . . . applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever the source.)
  • B.  less information than is covered by the attorney-client privilege
  • C.  the exact same amount of information as is covered by the attorney-client privilege.
  • D.  I object to the premise of the question.  In fact, there is no such rule.

Question 2

Is the following statement true or false?

  • When a prospective client meets with but does not retain a lawyer, nothing in the Rules of Professional Conduct requires the lawyer to keep confidential the information that the prospective client shared in connection with the consultation.

FALSE.  Rule 1.18(b).

Question 3

Lawyer called me with an inquiry.  Here’s my response:

  • “By rule, you may do so, but only for the sole purpose of paying service charges or fees on the account, and only in an amount necessary for that purpose.”

Do what?

Deposit Lawyer’s (or Firm’s) own money into a client trust account.  See, Rule 1.15(b).

Question 4

With respect to testimony, which is appears in a different rule than the others?

The testimony:

  • A.  relates to an uncontested issue.
  • B.  relates to the nature and value of legal services rendered in the case.
  • C.  was offered by the lawyer’s client, was material, and the lawyer comes to know that it was false.
  • D.   Not one.  They each appear in the same rule.

A & B appear in Rule 3.7, the rule that applies when a lawyer is a witness.  C is in Rule 3.3, the rule on candor to a tribunal.

Question 5

Lionel Hutz was one of the most incompetent, unethical lawyers in the history of television.  Yet, the family at the center of one of TV’s longest running series continually hired him.

In one notable episode, Hutz sued a restaurant on behalf of a family member who was shut off despite the restaurant’s ads for an “all you can eat” seafood night.  Upon hearing the man’s story, Hutz responded “this is the most blatant case of fraudulent advertising since my case against the movie ‘The Never-Ending Story!’”

In another case, Hutz represented the man’s son after the boy had swallowed a piece of metal that was in a cereal box.  Hutz recovered $100,000 for the boy and kept $99,500 as a fee.

Earlier this year, the show was renewed for its 31st and 32nd seasons.  Yet, following Phil Hartman’s death in 1998, Hutz’s character was largely retired and hasn’t had a speaking role since.

Name the TV show.

The Simpsons. No less than THREE different readers reminded me that Hutz taught us the importance of proper punctuation.  I love my readers!

 

Image result for lionel hutz no money down

**************

In case you’re interested, here are the Final Jeopardy clues that flummoxed contestants this week.  Answering them is NOT required to enter this week’s quiz. I include them only for those who might be mildly interested.

I was 2-4. I didn’t get Monday’s or Wednesday’s.

Monday

  • Category:  Landmarks
  • “David Livingstone wrote of this discovery of his, ‘Scenes so lovely must have been gazed upon by angels in their flight.’”

What is Victoria Falls?

Tuesday

  • Category: Toys & Games
  • “The prototype for this game that was introduced in 1948 was called Lexiko.”

What is Scrabble?

Wednesday

  • Category: Children’s Authors
  • “This author and illustrator who won the 1964 Caldicott Medal was dubbed ‘The Picasso of Children’s Books.”

Who is Maurice Sendak?

Thursday

  • Category: 1970’s Album Reviews
  • “Rolling Stone said this 1976 album had ‘the best & worst tendencies of L.A. situated rock’ and was an ‘unflattering portrait of the milieu.’”

What is Hotel California?

California Bar Exam Essay Topics Released — Vermont is NOT Affected.

(Updated at 1:35 PM to include the NCBE’s response)

A stunning development from California: mere days from the bar exam, it appears as if California’s essay topics were leaked.  In an attempt to ensure fairness, the State Bar of California apparently responded by sending all examinees an email disclosing the essay topics.

Please note:  California is not a Uniform Bar Exam jurisdiction.  The situation in California will NOT impact the Vermont Bar Exam or the bar exam in any UBE jurisdiction.

Here’s a tweet from the Cal State Bar’s verified account:

It was followed 17 minutes later by this tweet:

The Bar Exam Guru has been in front of this story.  On Twitter, Guru posted what is described as the email that the Cal State Bar sent to examinees:

A screenshot of the entire email is here.

Again, this impacts only the California Bar Exam.  Unlike California, Vermont is a UBE jurisdiction.  The UBE has not been compromised.  Indeed, from the verified Twitter account of the National Conference of Bar Examiners:

On the bright side, as bar counsel, I’m pleased to learn that California is testing Professional Responsibility this year.

Image result for bar exam images

 

 

Five for Friday #171

Welcome to Friday!

If you’re on vacation, stop reading now!  Wednesday’s post explains why.

If you’re still reading, I wasn’t going to post a quiz today.  I’m not much into blogging during July.  Never have been, never will be.

I am, however, into Jeopardy. Even in July, I watch nearly every night, if only to catch Final Jeopardy.

Image result for images of final jeopardy

This week, the contestants’ performance on Final Jeopardy has been nothing short of miserable.

Through 4 nights, the contestants have combined to go 3-12 on the final question.

Yikes!

Tough questions? You can decide for yourself: I’ve pasted them in below the quiz.  But it’s also possible that contestants didn’t practice.

My good readers: we shall practice! And we shall do so 1 week and 5 questions at a time.  After all, in the real world, on the horns of an ethics dilemma, 3 for 12 ain’t gonna cut it.

Therefore, as little as I like blogging in July . . .

. . . 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

There’s a rule that prohibits a lawyer from disclosing information related to the representation of a client.  The rule encompasses:

  • A.  more information than is covered by the attorney-client privilege
  • B.  less information than is covered by the attorney-client privilege
  • C.  the exact same amount of information as is covered by the attorney-client privilege.
  • D.  I object to the premise of the question.  In fact, there is no such rule.

Question 2

Is the following statement true or false?

  • When a prospective client meets with but does not retain a lawyer, nothing in the Rules of Professional Conduct requires the lawyer to keep confidential the information that the prospective client shared in connection with the consultation.

Question 3

Lawyer called me with an inquiry.  Here’s my response:

  • “By rule, you may do so, but only for the sole purpose of paying service charges or fees on the account, and only in an amount necessary for that purpose.”

Do what?

Question 4

With respect to testimony, which is appears in a different rule than the others?

The testimony:

  • A.  relates to an uncontested issue.
  • B.  relates to the nature and value of legal services rendered in the case.
  • C.  was offered by the lawyer’s client, was material, and the lawyer comes to know that it was false.
  • D.   Not one.  They each appear in the same rule.

Question 5

Lionel Hutz was one of the most incompetent, unethical lawyers in the history of television.  Yet, the family at the center of one of TV’s longest running series continually hired him.

In one notable episode, Hutz sued a restaurant on behalf of a family member who was shut off despite the restaurant’s ads for an “all you can eat” seafood night.  Upon hearing the man’s story, Hutz responded “this is the most blatant case of fraudulent advertising since my case against the movie ‘The Never-Ending Story!'”

In another case, Hutz represented the man’s son after the boy had swallowed a piece of metal that was in a cereal box.  Hutz recovered $100,000 for the boy and kept $99,500 as a fee.

Earlier this year, the show was renewed for its 31st and 32nd seasons.  Yet, following Phil Hartman’s death in 1998, Hutz’s character was largely retired and hasn’t had a speaking role since.

Name the TV show.

**************

In case you’re interested, here are the Final Jeopardy clues that flummoxed contestants this week.  Answering them is NOT required to enter this week’s quiz. I include them only for those who might be mildly interested.

I was 3-4. I didn’t get Wednesday’s.

Monday

  • Category:  Landmarks
  • “David Livingstone wrote of this discovery of his, ‘Scenes so lovely must have been gazed upon by angels in their flight.'”

Tuesday

  • Category: Toys & Games
  • “The prototype for this game that was introduced in 1948 was called Lexiko.”

Wednesday

  • Category: Children’s Authors
  • “This author and illustrator who won the 1964 Caldicott Medal was dubbed ‘The Picasso of Children’s Books.”

Thursday

  • Category: 1970’s Album Reviews
  • “Rolling Stone said this 1976 album had ‘the best & worst tendencies of L.A. situated rock’ and was an ‘unflattering portrait of the milieu.'”

 

 

 

 

Increasing Access is a Professional Responsibility

I’ve long argued that increasing access to legal services is a professional responsibility that falls on all lawyers.  In other words, it’s the profession’s responsibility.  Let me back up a moment.

If you’re not aware, the sheer number of self-represented litigants is staggering.  In 2015, the Vermont Joint Commission on the Future of Legal Services issued this report.  Kudos to Dan Richardson for envisioning, creating, and shepherding the Commission to an end product.

I chaired the Commission’s Legal Education Committee.  Our section of the report referenced numbers from a study that Judge Davenport did in 20112.  On page 19 we wrote:

  • “In 2012, the Honorable Amy Davenport analyzed the number of self-represented litigants in cases in the Civil Division of the Vermont Superior Court. The numbers were staggering. Defendants in small claims cases represented themselves 94% of the time.21 In the Family Division, 84% of active parentage cases and 54% of active divorces involved at least one self-represented litigant. Ninety percent of the defendants in landlord-tenant cases were self-represented compared to only 24% of the plaintiffs. Defendants in collections and foreclosure cases fared marginally ‘better,’ respectively left to represent themselves 84% and 74% of the time. This ‘improvement’ was offset, if not rendered irrelevant, by the fact that 99% of
    foreclosure plaintiffs and 98% of collections plaintiffs had lawyers.”

I’m not aware of anything to suggest that more litigants are hiring lawyers.  Further, as an aside, I switched from a business track to poli sci during my sophomore year at UVM.  Still, it’s tough to imagine another industry that has such an untapped market.

Anyhow, occasionally, I hear “but Mike, the ethics rules make it tough to provide access.”  That’s a load of horse manure.  I’ve got an entire power point on how, in my view, the rules encourage lawyers to ensure access to legal services.

More specifically, I’ve blogged and spoken on two issues that, arguably, would increase access:

  1. Allowing nonlawyers to own, invest in, and manage law firms;
  2. Allowing nonlawyers to provide specified legal services that, for now, only lawyers can provide.

My posts on the nonlawyer ownership issue can be accessed here.  My post on allowing paralegals to do more was the third most-read post on this blog in 2017.  In the post, which is here, I argued against letting the perfect response to the access crisis serve as an enemy to a good response.

Neither idea has gained much traction in Vermont.  But each is back in the news nationally.

Two weeks ago, the State Bar of California authorized a 60-day public comment period on a series of  regulatory reforms “tentatively recommended” by the  Task Force on Access Through Innovation in Legal Services.  Per this press release from the Cal Bar:

  • “The Task Force’s 16 reform options under consideration represent a groundbreaking menu of possible changes to certain key regulatory issues, including:
    • Exceptions to current restrictions on the unauthorized practice of law;
    • The prospect of non-attorney ownership; and
    • Entity regulation.”

As Professor Bernabe notes on his Professional Responsibility Blog,

  • “The underlying force for these proposals is a concern that something needs to be done to provide more and more affordable access to legal services to people in need.  As you probably know, there are many studies that show that many (perhaps most) people with legal needs don’t have access to affordable representation.  Opening the door for some regulated provision of legal services by non-lawyers might help close the gap.  Yet, some argue this is not a good idea.  And so, the debate continues.”

Yes, the debate continues.  I expect to bring it to the Professional Responsibility Board at its September and December meetings.  In the meantime, many have weighed in, both for and against.  To learn more, check out posts from Above The Law, the ABA Journal, and the Legal Ethics Alert Blog.

No matter your position, keep in mind my theme when I speak on this topic: if increasing access is against the rules, we need to look again at the rules

Legal Ethics.

Vacations, Devices & Vacations from Devices.

Last week, I went to Chicago with the First Brother and Waskow.  We went to a Cubs game Friday.  It was a fantastic day off.  Yet, what did I do as we approached the Cubbie Bear before the game? I lagged behind so that I could respond to a lawyer who had emailed me an ethics inquiry.

Not cool.  I need to practice what I preach.  And here’s today’s sermon in 4 points:

  1. It’s mid-July.  A time for Vermonters to be on vacation.
  2. It’s also 2019.  A time for everyone to be on a device (or 2 or 3).
  3. If you’re a legal professional on vacation, stop reading now!
  4. Put the device down, back away slowly, and resume your vacation.

Wellness

Here’s the longer version.

Last week, Massachusetts Supreme Judicial Court received this report from its Steering Committee on Lawyer Well-Being.  The report, which is like Vermont’s State Action Plan, includes an array of recommendations from various stakeholders within the profession that is incredibly thorough and well thought out.

The Massachusetts report identifies 8 “Major Issues Affecting Lawyer Well-Being.”  They are:

  • Stigma
  • The pace of work
  • Financial pressures
  • Court deadlines & courtroom dynamics
  • Alienation from a lack of diversity and inclusiveness
  • Isolation
  • Secondary Trauma
  • Incivility

Over the next few months, I hope to touch on each.  Today, I’m focusing on “the pace of work” as a major issue affecting lawyer well-being.  In particular, I was struck by a theme that emerged  from the Steering Committee and its subcommittees: take a vacation, including from your devices.

Here’s the opening paragraph from the section of the report that deals with “pace of work” as a “major issue affecting lawyer well-being.”

  • The pace of work: The relentless pace makes it very difficult for lawyers
    to set boundaries between work and the rest of life, and appears to be significantly
    exacerbated by the technology-fueled demands for constant availability. This point
    was underscored by practitioners in firms of all sizes, public attorneys, and in-house counsel.”

From there, the report recommends that legal employers “encourage employees to take vacations.”  The recommendation cites to a study of 6,000 lawyers that “found that their number of vacation days was the strongest predictor of well-being of all activities measured in the study – – even stronger than income level.”

The recommendation follows from the reports of the Steering Committee’s various subcommittee.  For example:

The Subcommittee on Lawyer Well-Being noted that “work addiction” is 250% more prevalent among lawyers than nonlawyers and recommended that employers “encourage vacations.”

The Subcommittee on In-House Counsel found that “in-house counsel face the same pressures as other lawyers,” including “an expectation of 24/7 responsiveness.” As such, the subcommittee recommended that lawyers in supervisory roles should “encourage mental health days and vacation that specifically includes time away from work devices such as laptops and cell phones.”

The Large Firm Subcommittee cited several “major sources of stress.”  Among them, a workload that causes lawyers to “feel pressure to avoid taking full vacations or otherwise establishing time blocks when they are not available to work.”  Another source of stress:

  • “Lack of boundaries: Lawyers often feel that there is no line between being ‘on’ and ‘off’ duty and that they are expected to be available to respond to firm and client demands at all hours of the day and night. As a result, there is no true ‘down time’ for lawyers when they can recharge and be fully present with other aspects of their lives.”

Thus, the subcommittee’s recommendations include:

  • “Vacations. Lawyers should be encouraged to take their full allotment of
    vacation time as an essential component of their job responsibilities. Lawyers should be discouraged from remaining ‘on the grid’ while on vacation. Lawyers should be encouraged to cover for others who are away so that any disruption of service to clients is minimal. Vacation time should be tracked and inquiry made by attorney supervisors or the human resources department if attorneys are failing to take most of their allotted time to make sure that the failure to take vacation is not an early warning sign of burn-out’ or other mental health issues.”

The Massachusetts Bar Association Subcommittee on Attorney Well-Being found that:

  • “By far, the single most common cause of stress among all the disparate areas of legal practice was technology. The fact that technology allows attorneys to always be accessible to colleagues, partners, clients, and courts creates the expectation that they will always be accessible. Technology impacted the ability of attorneys to unwind, relax, and focus on the nonlegal aspects of their lives. They expressed concern that, if they do not respond to partners’ emails, texts or calls immediately, that they will lose their positions. They also believe that law firm culture demands that they remain accessible in order to meet billable hour requirements and to advance within the firm.”

And,

  • “Client expectations of full-time access with no boundaries is bolstered by the
    competitive nature of the practice of law. Attorneys reported that they fear that clients who demand immediate responses to emails and cellphone access, regardless of the date and time, will go elsewhere if the attorneys do not respond quickly enough. Reviewing work emails, text messages, and responding to work-related phone calls at all hours interferes with family time, social interactions, and self-care. A common issue among the responding attorneys is that they feel they never truly get away from work to recharge.”

Then, the subcommittee recommended that legal employers “encourage vacations, set limits on client access, and allow attorneys to establish boundaries to allow them to devote time to self-care and family life, without fear of retribution.”

In sum, take a vacation.  Not just from your job, but from your devices.

Start now.

 

Monday Morning Answers #170

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

Honor Roll

  • Karen Allen
  • Evan BarquistMontroll, Backus & Oettinger
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, John Marshall Law School
  • Honorable John M. Conroy, United States Magistrate Judge, District of Vermont
  • Erin GilmoreRyan Smith & Carbine
  • Laura Gorsky
  • Bob Grundstein
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy, JB Kennedy Associates, Mother of the Blogger
  • Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
  • Aileen LachsMickenburg, Dunn, Lachs & Smith
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Lon McClintockMcClintock Law Offices
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Hal Miller, First American
  • Herb Ogden, Ogden Law Offices
  • Thomas Wilkinson, Jr., Cozen O’Connor
  • Peter Young, General Counsel, Vermont Rail System

Answers

Question 1

How long must a lawyer keep records of funds that belonged to clients or third persons and that the lawyer held in connection with a representation?

  • A.   6 years from the termination of the representation.  V.R.Pr.C. 1.15(a)(1)
  • B.   The rules are silent on this issue.

Question 2

The following are exceptions to a particular rule.

  • to establish a claim or defense in a controversy between the lawyer and client;
  • to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved; or,
  • to respond to allegations in any proceeding concerning the lawyer’s representation of the client.

Generally, what does the rule prohibit?

Disclosing information relating to the representation of a client.  The exceptions listed appear in Rule 1.6(c)(3) and, collectively, are often referre to as “the self-defense exception.” 

Question 3

Lawyer represents Client.   Lawyer calls Witness to testify.   Witness completed his testimony and the court recessed for the day.  Preparing for the next day of trial, Lawyer comes to realize that Witness offered material evidence that was false.

Which is most accurate?

  • A.   Lawyer must take reasonable remedial measuresV.R.Pr.C. 3.3(a)(3)
  • B.   Lawyer need not correct the record since it was Witness and not Client.
  • C.   Lawyer’s duties are different depending on whether the case is criminal or civil.
  • D.  Lawyer must withdraw.

Comments 10 and 11 are instructive.

Question 4

Lawyer called me with an inquiry.  I listened, then said, “it’s okay as long as it does not imply a connection with a government agency or public or charitable legal services organization and is not otherwise false or misleading.”

What did Lawyer call to discuss?

  • A.    Using a trade name as a firm name.  V.R.Pr.C. 7.5(a)
  • B.    Organizing a pro bono clinic staffed by volunteer lawyers.
  • C.    Using an undercover investigator.
  • D.   Conflicts of interest that arise when moving to & from government practice.

Question 5

As readers know, I’m a huge proponent of attorney well-being and finding interests outside the law.  For me, I love running.

Earlier this week, an assistant public defender had to undergo emergency surgery after suffering a serious injury while taking a selfie as he participated in a famous “running” event.  Here’s what one of his co-workers said to the press:

  • “As an office we encourage our employees to pursue outside interests and explore their passions.  For many it’s traveling, and we think such pursuits are critical to the general wellness of our entire . We are relieved the incident was not more serious and we are looking forward to [the lawyer’s] return.”

Name the “running” event that the lawyer was participating in when he was injured.

The Running of the Bulls, which occurs on the final day of Pamplona’s San Fermin Festival. I blogged about the incident here.  The clip from The Breakfast Club summarizes my feelings on running in the event.

Professor Alberto Bernabe, a regular member of the Honor Roll, has actually attended the event. He sent me this picture of the ring.

BF2-2004

 

Five for Friday #170

Welcome to Friday!

I’m in a bit of a blogging hiatus, so I’m ditching the normal intro.  However, two matters deserve mention.

First, today is an important anniversary.  57 years ago tonight, a band played its first concert.  As noted by udiscovermusic, here’s how London’s Jazz News previewed the event:

  • “Mick Jagger, R&B vocalist, is taking an R&B group into the Marquee tomorrow night, while Blues Incorporated do their Jazz Club gig. Called The Rollin’ Stones. The line-up is: Mick Jagger (vocals), Keith Richards & Elmo Lewis (guitars), Dick Taylor (bass), Ian Stewart (piano), & Mick Avory (drums).”

I mention this because no blog I’ve posted generated more controversy than this one in which I expressed my preference for the Stones over The Beatles.

Second, an even more important anniversary took place two days ago: the anniversary of my mom’s birth!  She’s a regular member of the Five for Friday Honor Roll.  My blog about her life is here.  Happy birthday Mom!

PS:  my mom’s sons will officially mark her birthday at brunch this Sunday morning.  Some might call us too lazy to have gotten our act together in time for her birthday.  However, others might long for friends & family who, like Patrick and I, stretch others’ birthdays into week-long celebrations.

Onto the quiz!

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 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

How long must a lawyer keep records of funds that belonged to clients or third persons and that the lawyer held in connection with a representation?

  • A.   6 years from the termination of the representation.
  • B.   The rules are silent on this issue.

Question 2

The following are exceptions to a particular rule.

  • to establish a claim or defense in a controversy between the lawyer and client;
  • to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved; or,
  • to respond to allegations in any proceeding concerning the lawyer’s representation of the client.

Generally, what does the rule prohibit?

Question 3

Lawyer represents Client.   Lawyer calls Witness to testify.   Witness completed his testimony and the court recessed for the day.  Preparing for the next day of trial, Lawyer comes to realize that Witness offered material evidence that was false.

Which is most accurate?

  • A.   Lawyer must take reasonable remedial measures.
  • B.   Lawyer need not correct the record since it was Witness and not Client.
  • C.   Lawyer’s duties are different depending on whether the case is criminal or civil.
  • D.  Lawyer must withdraw.

Question 4

Lawyer called me with an inquiry.  I listened, then said, “it’s okay as long as it does not imply a connection with a government agency or public or charitable legal services organization and is not otherwise false or misleading.”

What did Lawyer call to discuss?

  • A.    Using a trade name as a firm name.
  • B.    Organizing a pro bono clinic staffed by volunteer lawyers.
  • C.    Using an undercover investigator.
  • D.   Conflicts of interest that arise when moving to & from government practice.

Question 5

As readers know, I’m a huge proponent of attorney well-being and finding interests outside the law.  For me, I love running.

Earlier this week, an assistant public defender had to undergo emergency surgery after suffering a serious injury while taking a selfie as he participated in a famous “running” event.  Here’s what one of his co-workers said to the press:

  • “As an office we encourage our employees to pursue outside interests and explore their passions.  For many it’s traveling, and we think such pursuits are critical to the general wellness of our entire . We are relieved the incident was not more serious and we are looking forward to [the lawyer’s] return.”

Name the “running” event that the lawyer was participating in when he was injured.

 

 

Careful with your wellness!

Damon Silver is an attorney in the Santa Clara County Public Defender’s Office. A few days ago, The San Jose Mercury News ran an article that included this quote from Silver:

  • “As an office we encourage our employees to pursue outside interests and explore their passions. For many it’s traveling, and we think such pursuits are critical to the general wellness of our entire PDO family.”

Great stuff! I completely agree and applaud the office’s approach to well-being.

Alas, there’s more to the story, and it’s kind of scary.

The Mercury News wasn’t running an article on attorney wellness.  It was reporting on the assistant public defender who was gored while taking a selfie as he participated in  Pamplona’s famed Running of the Bulls.  The Associated Press, the ABA Journal, and Above the Law also covered the story.  Fortunately, the lawyer survived and is expected to make a full recovery.

I’m all for well-being and passions outside the law.  But, let’s be careful out there.

P.S.  If Mr. Vernon taught me anything, it’s this:

 

 

 

Well-Being Is An Aspect Of Competence

Two years ago, the National Task Force on Lawyer Well Being published The Path to Lawyer Well-Being: Practical Recommendations for Positive ChangeThe report issued in response to two studies that revealed alarming statistics with respect to the well-being of the legal profession.

In their letter introducing the report, the Task Force’s co-chairs noted the report’s “five central themes:

  1. identifying stakeholders and the role each of us can play in reducing the level of toxicity in our profession,
  2. eliminating the stigma associated with helpseeking behaviors,
  3. emphasizing that well-being is an indispensable part of a lawyer’s duty of competence,
  4. educating lawyers, judges, and law students on lawyer well-being issues, and
  5. taking small, incremental steps to change how law is practiced and how lawyers are regulated to instill greater well-being in the profession.”

Among other proposals aimed at furthering the third (bolded) theme, the report recommended modifying the Rules of Professional Conduct “to endorse well-being as part of a lawyer’s duty of competence.”

The Vermont Supreme Court has done exactly that.

Yesterday, the Court promulgated an amendment to Comment [9] to Rule 1.1.  The new comment reads:

  • “[9] A lawyer’s mental, emotional, and physical well-being may impact the lawyer’s ability to represent clients and to make responsible choices in the practice of law. Maintaining the mental, emotional, and physical well-being necessary for the representation of a client is an important aspect of maintaining competence to practice law.”

Two questions jump to mind: what is well-being and how does a legal professional maintain it?

As to the former, the Task Force wrote:

  • “We define lawyer well-being as a continuous process whereby lawyers seek to thrive in each of the following areas: emotional health, occupational pursuits, creative or intellectual endeavors, sense of spirituality or greater purpose in life, physical health, and social connections with others. Lawyer well-being is part of a lawyer’s ethical duty of competence. It includes lawyers’ ability to make healthy, positive work/life choices to assure not only a quality of life within their families and communities, but also to help them make responsible decisions for their clients. It includes maintaining their own long-term well-being. This definition highlights that complete health is not defined solely by the absence of illness; it includes a positive state of wellness.”

In addition, the Task Force noted that:

  • “The concept of well-being in social science research is multi-dimensional and includes, for example, engagement in interesting activities, having close relationships and a sense of belonging, developing confidence through mastery, achieving goals that matter to us, meaning and purpose, a sense of autonomy and control, self-acceptance, and personal growth. This multi-dimensional approach underscores that a positive state of well-being is not synonymous with feeling happy or experiencing positive emotions. It is much broader.”

Finally, the Task Force explained that it:

  • “chose the term ‘well-being’ based on the view that the terms ‘health’ or ‘wellness’ connote only physical health or the absence of illness. Our definition of ‘lawyer well-being’ embraces the multi-dimensional concept of mental health and the importance of context to complete health.”

With the definition in mind, how does a legal professional maintain well-being?  It strikes me that the answer depends on the individual. A place for everyone to start, however, is the ABA’s Well-Being Toolkit for Lawyers and Legal Employers.  Its 99 pages are chock full o’ helpful tips and guidance.

I can hear you now:

  • “Ummm, what’s that you say Mike? 99 pages? I don’t have that much time to work on my well-being!”

Fear not!  Besides the full toolkit, and perhaps with my law school career in mind, the ABA also created the Well-Being Toolkit Nutshell: 80 Tips For Lawyer Thriving.  It’s only 2 pages.  No excuses!

Well-being is important.  Take the time to understand what it is, how to achieve it, and how to maintain it.  As you do, try not to get caught up in “I’m only doing this because the new comment says I should.”  Rather, get caught up in the first of the Well-Being Nutshell’s 3 reasons to care about well-being:

“It’s the right thing to do.”

 

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