Monday Morning Answers #180

Welcome to another week.  Friday’s questions are here.  The answers follow today’s Honor Roll.

Honor Roll

  • Karen Allen, Esq.; Karen Allen Law
  • Evan BarquistMontroll Backus & Oettinger
  • Penny Benelli, Dakin & Benelli
  • Mimi Brill, Windham County Public Defender
  • CeCe ConradCostello, Valente & Gentry
  • Erin GilmoreRyan Smith & Carbine
  • Laura Gorsky, Esq.
  • Robert Grundstein, Esq.
  • Glenn Jarrett, Jarrett & Luitjens
  • Aileen LachsMickenberg, Dunn, Lachs & Smith
  • John LeddyMcNeil Leddy & Sheahan
  • Jordana LevineMarsicovetere & Levine
  • Tom LittleLittle & Cicchetti
  • Lon McClintockMcClintock Law Offices
  • Jack McCullough, Vermont Legal Aid, Project Director – Mental Health Law Project
  • Karen Merino, Vermont Law School, JD Candidate
  • Jeff MessinaBergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Herb Ogden, Esq.
  • Jim Runcie, Ouimette & Runcie
  • Audrey Sander, Mariscovetere & Levine
  • Jonathan Teller-Elsberg, Vermont Law School, JD Candidate
  • Jack Welch, Esq.
  • Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

Which lawyer will disciplinary counsel likely treat differently than the others?  A lawyer who:

  • A.   works for a contingent fee in a criminal case.
  • B.   fails to keep copies of his advertisements for at least two years.
  • C.   engages in “puffery” during negotiations with opposing counsel.
  • D.  deposits her own money in trust, but only in an amount necessary to cover bank charges that she knows will occur.

A is prohibited by rule.  B is not a rule.  C and D are not prohibited.

Question 2

Lawyer represents Brady in Brady v. Mayfield.  Lawyer knows that Mayfield is represented by counsel.

Lawyer answers a phone call.  It’s Mayfield.  Before Lawyer can react, Mayfield asks if Lawyer has a few minutes to discuss settlement.  Mayfield adds “i’m calling you directly because I’m trying to keep my legal bills down.  Once we resolve this, I’ll get with my attorney and have her write it up”

You may assume that Mayfield’s lawyer has not consented to Lawyer communicating directly with Mayfield.  Which is most accurate?

  • A.   Lawyer may negotiate with Mayfield.  The rule doesn’t apply when a represented party voluntarily initiates communication.
  • B.   Lawyer must immediately terminate the call.  Rule 4.2, Comment 2

Question 3

Rule 1.2(d) prohibits a lawyer from assisting a client to violate the law.  The rule draws no distinction between state and federal law.  As such, two years ago, Vermont adopted a comment to the rule.

The new comment makes it clear that Vermont lawyers can provide advice and assistance to clients as long as the lawyer (1) reasonably believes that the conduct in permitted under state law, and (2) advises the client of the potential consequences of the conduct under federal law.

The new comment is aimed at lawyers who assist clients on matters related to Vermont’s statutes, rules, and regulations on ______________.

Marijuana/Cannabis

Question 4

Firm has long represented two clients:  A and B.   For years, Client A has worked with Lawyer, while Client B has worked with Attorney.

A intends to sue B.  Both A and B want their long-time counsel to represent them and, as such, are willing to waive the conflict.

Under Vermont’s rule, if A and B consent, can Lawyer and Attorney represent their long-time clients in A vs. B.?

  • A.  No.   Rule 1.7(b).
  • B.  Yes, if each gives informed consent, confirmed in writing.
  • C.   Yes, if each gives informed consent, confirmed in writing and each is advised of the desirability of checking with outside counsel before giving consent.
  • D.  Yes, if each gives informed consent, confirmed in writing and Firm employs reasonable measures to screen A and B from access to each other’s files/client information.

Question 5

Today’s question is inspired by the lyrics posted in the window at Hen of the Wood.

This lawyer was 20 when he graduated from Columbia Law School. He had to wait until he was 21 to be admitted to the bar. Three years later, he gained national prominence for his role as an Assistant United State Attorney in the federal government’s prosecution of Ethel and Julius Rosenberg.

He parlayed that into a job as chief counsel to United States Senator Joseph McCarthy, where he joined Robert Kennedy as counsel on Senator McCarthy’s most well-known committee.

Later, after leaving McCarthy’s office, he had a long career in private practice. Among others, he represented Donald Trump’s business interests and the New York Yankees in litigation that followed the famous George Brett “Pine Tar” incident.

In 1986, the State of New York disbarred him for misappropriation of client funds, lying on his bar application, and pressuring a dying a client to change a will to leave the client’s fortune to himself (the lawyer).

People my age might have learned about him by listening to Billy Joel’s We Didn’t Start the Fire.

Name the lawyer.

Roy Cohn

Image result for roy cohn images

Five for Friday #180

Happy Friday!

So, 180.

As I pondered today’s post last night, my thoughts turned to “180 degrees” and how life would be completely different but for a single choice made somewhere along the way.  I considered a post in which I shared a decision I made that I wish I hadn’t.  One that kept me from travelling a different path that, looking back, I wish I was on.

I think we all have moments where we wonder if things would’ve turned out differently “if only I’d done THAT instead.”  Or, moments in which we chastise ourselves and lament “if only I could do it all over again.”  My sense is that many within the legal profession are nodding knowingly.

The point of today’s blog is to take the opposite approach.  To remember all the good in my life and to be thankful for the critical decisions (and people who helped me to make them) that led me down a path I’m fortunate to be on.  I’m no expert, but, to me, gratefulness is more likely to increase wellness than is regret.  So, I vow to do my best adopt an outlook that is 180 degrees different from “if only.”  That is, no matter what happens, to control what I can control: my approach to what happens next, with a positive approach far healthier than a negative.

And then I remembered something that I saw yesterday.

My office is across the street from Hen of the Wood.  The restaurant has been closed since August 6 due to a fire. I’m sure the owners wish the fire never happened.  But, it did and now all that they can control is their reaction.  I love their outlook.

First, check out the notice on their website.  The first two things that they want you to know? Zero damage and everyone was evacuated safely.  In other words, things to be grateful for.

More importantly (at least to a blogger whose posts regularly reference SeinfeldThe Office, and lyrics) check out the pictures that recently appeared in the large windows at Hen of the Wood.

First, we have an image The Fire episode of Seinfeld. It’s George Costanza shoving an elderly woman with a walker out of the way as he flees the small kitchen fire that started at his girlfriend’s son’s birthday party.  Alas, even before the embers had stopped smoking, George was Robin’s ex-boyfriend.

Seinfeld

Second, Dwight Schrute in The Fire episode of The Office.  The Assistant (to the) Regional Manager is proudly displaying the cause of the fire that required Dunder Mifflin employees to evacuate office: a pita that Ryan accidentally cooked on the toaster oven’s “oven” setting instead of “toast.”

Dwight

Finally, although not as easy to see, in a third window, Hen of the Wood hung a giant poster of the lyrics to Billy Joel’s We Didn’t Start the Fire:

Lyrics

The folks who manage Hen of the Wood had a few different ways to react to the fire that has left them closed for nearly three months. I applaud them for reacting in a way that, quite likely, is 180 degrees different than what I would’ve done.  Their gratefulness and humor are terrific reminders that while we can’t always control what happens to us, we can always control our reaction.

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

Which lawyer will disciplinary counsel likely treat differently than the others?  A lawyer who:

  • A.   works for a contingent fee in a criminal case.
  • B.   fails to keep copies of his advertisements for at least two years.
  • C.   engages in “puffery” during negotiations with opposing counsel.
  • D.  deposits her own money in trust, but only in an amount necessary to cover bank charges that she knows will occur.

Question 2

Lawyer represents Brady in Brady v. Mayfield.  Lawyer knows that Mayfield is represented by counsel.

Lawyer answers a phone call.  It’s Mayfield.  Before Lawyer can react, Mayfield asks if Lawyer has a few minutes to discuss settlement.  Mayfield adds “i’m calling you directly because I’m trying to keep my legal bills down.  Once we resolve this, I’ll get with my attorney and have her write it up”

You may assume that Mayfield’s lawyer has not consented to Lawyer communicating directly with Mayfield.  Which is most accurate?

  • A.   Lawyer may negotiate with Mayfield.  The rule doesn’t apply when a represented party voluntarily initiates communication.
  • B.   Lawyer must immediately terminate the call.

Question 3

Rule 1.2(d) prohibits a lawyer from assisting a client to violate the law.  The rule draws no distinction between state and federal law.  As such, two years ago, Vermont adopted a comment to the rule.

The new comment makes it clear that Vermont lawyers can provide advice and assistance to clients as long as the lawyer (1) reasonably believes that the conduct in permitted under state law, and (2) advises the client of the potential consequences of the conduct under federal law.

The new comment is aimed at lawyers who assist clients on matters related to Vermont’s statutes, rules, and regulations on ____________________.

Question 4

Firm has long represented two clients:  A and B.   For years, Client A has worked with Lawyer, while Client B has worked with Attorney.

A intends to sue B.  Both A and B want their long-time counsel to represent them and, as such, are willing to waive the conflict.

Under Vermont’s rule, if A and B consent, can Lawyer and Attorney represent their long-time clients in A vs. B.?

  • A.  No.
  • B.  Yes, if each gives informed consent, confirmed in writing.
  • C.   Yes, if each gives informed consent, confirmed in writing and each is advised of the desirability of checking with outside counsel before giving consent.
  • D.  Yes, if each gives informed consent, confirmed in writing and Firm employs reasonable measures to screen A and B from access to each other’s files/client information.

Question 5

Today’s question is inspired by the lyrics posted in the window at Hen of the Wood.

This lawyer was 20 when he graduated from Columbia Law School. He had to wait until he was 21 to be admitted to the bar. Three years later, he gained national prominence for his role as an Assistant United State Attorney in the federal government’s prosecution of Ethel and Julius Rosenberg.

He parlayed that into a job as chief counsel to United States Senator Joseph McCarthy, where he joined Robert Kennedy as counsel on Senator McCarthy’s most well-known committee.

Later, after leaving McCarthy’s office, he had a long career in private practice. Among others, he represented Donald Trump’s business interests and the New York Yankees in litigation that followed the famous George Brett “Pine Tar” incident.

In 1986, the State of New York disbarred him for misappropriation of client funds, lying on his bar application, and pressuring a dying a client to change a will to leave the client’s fortune to himself (the lawyer).

People my age might have learned about him by listening to Billy Joel’s We Didn’t Start the Fire.

Name the lawyer.

 

 

 

Wellness Wednesday: Baseball & Civility

I’ve often mentioned that civility is an aspect of wellness.  Indeed, six months ago, shortly after the baseball season began, I posted Be Kind to a Lawyer Today.  Now, with the World Series upon us, I’d like to bookend the season with an example of civility among lawyers.

The story has been reported by several outlets, including the ABA Journal, Above The Law, and the Washington Post.

Jay Friedman is an attorney who lives in the D.C. area.  He represents organic food growers who are in litigation with the federal government.  Friedman had an October 18 deadline to file a motion for summary judgment.

Friedman and his 9-year old son are fans of the Washington Nationals.  On October 15, the Nationals hosted the St. Louis Cardinals in Game 4 of the National League Championship Series. Friedman and his son wanted to watch the game.  Had the Nationals lost, the Friedmans had tickets to the game that was scheduled for the next day.  And, had the Nationals lost that one, another game was scheduled for the night of October 17.  Their nights were looking busy.

Left to choose between working on the motion and what might be a once-in-a-lifetime experience with his son, Friedman asked the court to extend the deadline from October 18 to October 21.  The DOJ attorneys consented to the request and the court granted it.

BuzzFeed’s Zoe Tillman tweeted the motion:

Here’s what Friedman told the Washington Post about his counterpart at DOJ:

“Lawyers on TV fight over everything and act like it’s World War III, but my counterpart at the Department of Justice is a perfectly nice and respectful person,” Friedman said. “I told her [about the motion] and she’s fine with it. She sent me a note yesterday afternoon and she said, ‘Everybody here loves it. We’re showing it around the office.’ “

The Post went on to report that:

“With [opposing counsel’s] permission, Friedman included at the end of his motion, ‘With the consent of the parents and baseball fans at the Department of Justice, this request is unopposed.’”

The game? The Nationals won, clinching their first-ever trip to the World Series, and obviating the need for more games later that week.  Still, I love this story.

As I’ve blogged, my earliest sports memory is of my dad waking me up to watch the final out of the 1975 American League Championship Series.  I will never forget it.

Attorney Friedman’s 9-year old son strikes me as serious a Nationals fan as I was an 8-year old Red Sox fan.  I can attest that it’s likely that neither Friedman nor the DOJ attorneys who consented to his request will ever fully realize the impact of the decision not to work last Tuesday night.

Civility and wellness.  Small things can make a gigantic difference.

Oh, Attorney Friedman, DOJ attorneys, and Nats fans everywhere: great story, I love your stadium, and I’m rooting for the Nats.  Alas, as I cheered last night’s heroics from Soto & Scherzer, I couldn’t help but wish that I was cheering pour Les Expos.

Image result for expos logos

 

DC advisory opinion addresses duties when another lawyer is impaired.

In March 2016, I authored my first post on lawyer wellness.  In it, I mentioned that lawyers often inquire whether Rule 8.3, the mandatory reporting rule, requires them to report impaired lawyers.  I added:

  • “Maybe.  But how about this? How about coming it at from the perspective of helping another human being instead of analyzing whether another’s struggles trigger your duty to report? If a colleague, co-worker, or opposing counsel needs help, why not help them?”

I suggested contacting me or Josh Simonds at the Vermont Lawyers Assistance Program.

Somewhat ironically, a lawyer called me this morning, minutes before I began to draft this post.  The lawyer asked for help getting into a residential treatment program. It was my first call of that nature. I referred the lawyer to Josh and stand ready to assist if the lawyer enters treatment and steps need to be taken to protect the interests of the lawyer’s clients.

But I digress.  I write today because I suppose there are instances in which helping a colleague doesn’t work.  If so, when does the colleague’s level of impairment trigger the duty to report?

Earlier this week, the D.C. Bar issued Ethics Opinion 377: Duties When a Lawyer is Impaired.  I want to highlight the paragraph that I consider most important:

  • “Beyond the ethical obligations embodied in the D.C. Rules, a fundamental purpose of identifying and addressing lawyer impairment is to encourage individuals who are suffering from mental impairment to seek and obtain assistance and treatment.  This purpose should not be forgotten as lawyers, firm, and agencies seek to comply with the ethical mandates discussed herein.”

In other words, let’s help people and let’s not disincentivize seeking help.  That’s why assistance must be decoupled from discipline.

As for the guts of the opinion, I don’t want to regurgitate it here.  It’s worth reading on your own.  In sum, it recommends that lawyers in supervisory & managerial roles:

  • “seek to create a culture of compliance” within their firms & agencies;
  • promote an office culture that encourages those in need to seek assistance;
  • develop internal policies & procedures to encourage early reporting to appropriate personnel within the office;
  • develop internal policies & procedures with which an impaired lawyer will be expected to comply**;
  • keep in mind that the duties to clients might include removing an impaired lawyer from involvement with client matters; and,
  • keep in mind that the substantive law will inform the firm or office on how to deal with an impaired lawyer’s privacy and employment rights.

** On this point, last week I blogged about the ABA Well-Being Template for Legal Employers.

I understand that many lawyers will continue to view lawyer wellness through the lens of a duty to report.  Even if that’s your perspective, don’t forget the key line from the D.C. opinion:

  • “Beyond the ethical obligations embodied in the D.C. Rules, a fundamental purpose of identifying and addressing lawyer impairment is to encourage individuals who are suffering from mental impairment to seek and obtain assistance and treatment.”

Help because you can, not because you have to.

As always, if you or a legal profession you know needs help, contact me or Josh Simonds at the Vermont Lawyers Assistance Program.

wellness

 

Monday Morning Answers #179

Welcome to Monday!

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

And, an added bonus: I ran into Honor Rollee Karen Allen at yesterday’s Heady Trotter 4 Miler in Stowe!

IMG_3178

Honor Roll

  • Karen Allen, Esq.; Karen Allen Law
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, John Marshall Law School
  • Honorable John M. Conroy, United States Magistrate Judge, District of Vermont
  • Andrew DelaneyMartin & Delaney Law Group
  • Erin GilmoreRyan Smith & Carbine
  • Laura Gorsky, Esq.
  • Robert Grundstein, Esq.
  • John LeddyMcNeil Leddy & Sheahan
  • Kevin LumpkinSheehey Furlong & Behm
  • Pam MarshMarsh & Wagner
  • Lon McClintockMcClintock Law Offices
  • Jack McCullough, Vermont Legal Aid, Project Director – Mental Health Law Project
  • Jeff MessinaBergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Herb Ogden, Esq.
  • Nancy Rogers, Chamberlin School, South Burlington 
  • Jim Runcie, Ouimette & Runcie
  • Kristen ShamisMonaghan, Safar, Ducham
  • Jonathan Teller-Elsberg, Vermont Law School, Class of 2020
  • Thomas Wilkinson, Jr., Cozen O’Connor
  • Zachary York, Vermont Superior Court, Chittenden Civil 

Answers

Question 1

In Vermont, a lawyer _____________  the representation has been rendered unreasonably difficult by the client.

  • A.   may withdraw if   V.R.Pr.C. 1.16(b)(6)
  • B.   must withdraw if
  • C.   must not withdraw unless
  • D.  I object to the premise. This never happens.

Question 2

Can a lawyer accept compensation from someone other than the client?

  • A.  No.
  • B.   Yes, but only if the client is indigent.
  • C.   Yes, but the rule permitting it also discourages it.
  • D.   Yes, if the client gives informed consent, the payor doesn’t interfere with the lawyer-client relationship, and information relating to the representation of the client is not disclosed to the payor except as authorized by the rule on client confidences.  V.R.Pr.C 1.8(f)

Question 3

Rule 1.15(a)(1) requires a lawyer to hold property of clients or third persons separate from the lawyer’s own property.

While the word doesn’t appear in the rule, what is the word most commonly used to describe conduct that violates the rule?

Commingling

Question 4

A repeat, but in honor of Celebrate Pro Bono Week:

Lawyer is an associate at Firm. Tomorrow, Lawyer intends to provide short-term limited legal services to clients at a walk-in clinic sponsored by a nonprofit organization.  Neither Lawyer nor her walk-in clients will expect Lawyer or Firm to provide continuing representation to the clients.  By rule, which set of rules will be (somewhat) relaxed, insofar as they relate to Lawyer’s work at the walk-in clinic?   The rules on:

  • A.  Conflicts of Interest.  V.R.Pr.C. 6.5
  • B.  Malpractice Insurance
  • C.  Diligence & Competence
  • D.  Client Confidences

Question 5

Michael Brock was an anti-trust lawyer at Drake & Sweeney, a large D.C. firm.  One day, a homeless man named “Mister” entered the firm and took hostages.  A police sniper shot and killed Mister.

Bothered, Brock set out to determine what drove Mister.  His quest led him to the 14th Street Legal Clinic where he met Attorney Mordecai Green.  Eventually, Brock learned that his firm had been involved in evicting homeless people from a condemned building in the middle of winter, with a young family dying as a result.   Disturbed, Brock left the firm, taking a client file with him.

On behalf of the clinic, Mordecai Green sued the firm for its role in the evictions.  The firm countered that Brock had committed malpractice and stolen files.

The matter settled with Brock agreeing to having his license suspended, while the firm fired the partner responsible for the evictions and made its entire staff available to do pro bono work assisting the clinic to fight for the rights of the homeless.

Name the book.

THE STREET LAWYER

Image result for images of the street lawyer

Five For Friday #179

Ever since I was a kid, I’ve been drawn to playing in the rain.  No idea why.  And not just any rain, but serious rain.  Some of the more epic games & adventures ever witnessed in South Burlington’s Williston Road neighborhoods took place in some of the more epic storms.

Would we have wanted it to rain every day? No way.  But, every now & then, doing something out of the norm presented a challenge that, once accepted, often resulted in feelings of both freedom and accomplishment.

Which likely explains why, yesterday, I wanted nothing more than to go for a run.

For those of you not in Vermont, a powerful storm hit parts of the state yesterday.  I live in northwestern VT, an area that avoided the worst of the worst.  Still, the least bad wasn’t good.

Mid-morning, Disciplinary Counsel Sarah Katz and I were watching the storm from our office window.  I told her I wanted to go for a run.  From her look, I’m pretty sure she contemplated filing a petition to have my law license immediately transferred to disability inactive status.  My suspicions were confirmed upon seeing her reaction when I mentioned that I’d brought my rain-running gear with me to work.

Alas, the work day got away from me and, eventually, I headed home without having run.

When I got home, I ran.

The wind was fierce, the puddles deep.  My feet were soaked & frigid within a mile, my hands within another.  But it was awesome.  I felt free, like I was doing something for the pure enjoyment of doing it as opposed to doing it because I had to.  A sopping wet adventure that reminded me of being a kid and that, once finished, left me with a rewarding sense of accomplishment.

Which, this morning, made me think of National Pro Bono Week.

Monday marks the beginning of the National Celebration of Pro Bono.  It runs through October 26.  As ABA President Judy Martinez notes here, this year’s celebration highlights the need for legal services for the survivors of domestic and sexual violence.

Eileen Blackwood is a former VBA President and used to chair the VBA’s Pro Bono Committee.  Here’s an excerpt from a blog I posted last May:

  • “Last week, Eileen Blackwood and I presented on professionalism at the VBA’s Basic Skills conference.  Eileen urged the new lawyers to consider pro bono work.  Among its other benefits, Eileen shared a poignant story of how a case that she handled pro bono brought her a measure of personal satisfaction that she didn’t always find in her work for ‘paying’ clients.”

Sort of like an 8.95 mile run in a bomb cyclone.  Sure, last night it would’ve made a ton more sense to stay inside and run another day.  A regular run that would’ve been fine, but that wouldn’t really have differed from any other run.

I’ll have time for plenty of those.  And, in the end, they’ll provide their own reward

But nothing like the reward & satisfaction of tackling a challenge that brought me back to my youth and, really, to why I run in the first place.

Pro bono work offers something similar to lawyers.  A chance to do something different than what you’ll do every other work day.  A chance for the reward and satisfaction of helping someone for no other reason than because you can.  Which, however fleeting, just might bring you back to the feeling that sent you to law school in the first place.

Next week, please consider the professional version of running in a torrential storm.

For more information on pro bono opportunities, please contact Mary Ashcroft.  Mary is the VBA’s Legal Access Coordinator.  Or, visit this link.

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

In Vermont, a lawyer _____________  the representation has been rendered unreasonably difficult by the client.

  • A.   may withdraw if
  • B.   must withdraw if
  • C.   must not withdraw unless
  • D.  I object to the premise. This never happens.

Question 2

Can a lawyer accept compensation from someone other than the client?

  • A.  No.
  • B.   Yes, but only if the client is indigent.
  • C.   Yes, but the rule permitting it also discourages it.
  • D.   Yes, if the client gives informed consent, the payor doesn’t interfere with the lawyer-client relationship, and information relating to the representation of the client is not disclosed to the payor except as authorized by the rule on client confidences.

Question 3

Rule 1.15(a)(1) requires a lawyer to hold property of clients or third persons separate from the lawyer’s own property.

While the word doesn’t appear in the rule, what is the word most commonly used to describe conduct that violates the rule?

Question 4

A repeat, but in honor of Celebrate Pro Bono Week:

Lawyer is an associate at Firm. Tomorrow, Lawyer intends to provide short-term limited legal services to clients at a walk-in clinic sponsored by a nonprofit organization.  Neither Lawyer nor her walk-in clients will expect Lawyer or Firm to provide continuing representation to the clients.  By rule, which set of rules will be (somewhat) relaxed, insofar as they relate to Lawyer’s work at the walk-in clinic?   The rules on:

  • A.  Conflicts of Interest
  • B.  Malpractice Insurance
  • C.  Diligence & Competence
  • D.  Client Confidences

Question 5

Michael Brock was an anti-trust lawyer at Drake & Sweeney, a large D.C. firm.  One day, a homeless man named “Mister” entered the firm and took hostages.  A police sniper shot and killed Mister.

Bothered, Brock set out to determine what drove Mister.  His quest led him to the 14th Street Legal Clinic where he met Attorney Mordecai Green.  Eventually, Brock learned that his firm had been involved in evicting homeless people from a condemned building in the middle of winter, with a young family dying as a result.   Disturbed, Brock left the firm, taking a client file with him.

On behalf of the clinic, Mordecai Green sued the firm for its role in the evictions.  The firm countered that Brock had committed malpractice and stolen files.

The matter settled with Brock agreeing to having his license suspended, while the firm fired the partner responsible for the evictions and made its entire staff available to do pro bono work assisting the clinic to fight for the rights of the homeless.

Name the book.

P.S. – any lawyers running the Heady Trotter Sunday, find me for pictures!

Image result for images of pro bono

Wellness Wednesday: the ABA Well-Being Template for Legal Employers

Last Wednesday, I blogged about the small things that we can do to promote wellness & well-being within the legal profession.  Two of the examples I shared:

  • every Friday in August, the workday at a large Vermont firm ended at 3:00 PM.
  • the lawyers who work in-house for a Vermont government agency recently created a Well-Being Committee whose first task was to develop a tool to allow lawyers and nonlawyer staff to weigh in on the office’s strengths & weaknesses on well-being issues.

I’m a fan of whatever proactive initiative, no matter how small, that legal employers take to promote well-being.

Today, however, I’m blogging on a different topic: responding to a co-worker who is impaired.

The ABA and its Commission on Lawyer Assistance Programs have been at the forefront of the drive to promote wellness & well-being within the legal profession.  Yesterday, I came across the ABA’s Well-Being Template for Legal Employers.  Per the Preamble:

  • “In 2019, the Policy Committee of the ABA Commission on Lawyer Assistance
    Programs (CoLAP) and the ABA Working Group to Advance Well-Being in the Legal Profession developed this template to provide suggested guidelines to legal employers for responding to an employee who is experiencing impairment due to a substance use disorder, mental health disorder or cognitive impairment.”

Employers who adopt the template not only commit to proactive wellness initiatives, but also to:

  • “(1) early identification of impairment and proper intervention to assist with
    preventing, mitigating, or treating the impairment; and (2) preventing our professional standards and the quality of our work from being compromised by any personnel member’s impairment.”

Along with the Law Firm Pledge, the Well-Being Toolkit for Lawyers & Legal Employers, and the Well-Being Toolkit in a Nutshell, the Well-Being Template serves as another valuable resource developed by the ABA for legal employers committed to their employees’ well-being.

wellness

 

Leaving a Law Firm

I promise no Neil Sedaka references.

It’s not uncommon for lawyers to contact me for guidance when leaving a law firm to practice somewhere else.  I’ll share some of that guidance later in this post.  I’ll start, however, with guidance on what not to do:

  • Don’t steal client files from the firm you’re leaving.

Last month, a Missouri court ordered a lawyer to pay approximately $775,000 to her former firm for conduct associated with improperly taking files when she departed.  The order followed prior contempt findings that, among other things, resulted in the lawyer spending two nights in jail.  The ABA Journal, St. Louis Post-DispatchLegal Reader, and Professor Bernabe’s Professional Responsibility Blog reported on the story.

As best as I can determine . . .

. . . the lawyer left her firm in February 2018.  During an exit interview, she told the firm that she had not taken any client files or information belonging to the firm.  In fact, one week prior to leaving, the lawyer impermissibly transferred more than 22,000 data files (including client files) to a flash drive. Many of the client files she took belonged to clients for whom she had never done any work.

The firm found out almost immediately and filed for injunctive relief.  The firm and the lawyer entered into a consent order under which the lawyer agreed to return the data files and destroy electronic copies.

She didn’t.  As a result, in January 2019, she was held in contempt, ordered to abide by the consent order, and ordered to make her devices available for forensic review.

She didn’t.  Once she did, a forensic inspection revealed that, after the initial contempt finding, the lawyer and an assistant transferred files from her devices to the cloud.  The court concluded that the lawyer moved the files to the cloud as part of an attempt to hide the fact that she continued to possess copies.  As a result, she was held in contempt (again!) and ordered to spend two nights in jail.

Last month, the lawyer filed a confession of judgment in which she admitted her wrongs and agreed to pay her old firm $557,252.08.

Yes – over half a million dollars. Talk about no more carefree laughter.

Anyhow, my recap likely understates the (mis)conduct.  For more, check out the July 2019 contempt order, the August 2019 contempt order, the confession of judgment, and the final order.

That’s what not to do.

As for a “to do” list, I’ve included several helpful resources at the end of this post.  Many draw from ABA Formal Opinion No. 99-414: Ethical Obligations When a Lawyer Changes Firms.

The key takeaway from ABA Opinion: both the firm and the departing lawyer must ensure that the lawyer’s departure does not have a “material adverse effect on the interests of the clients with active matters upon which the lawyer is currently working.”

Here’s an outline of the rest of the ABA Opinion:

  • Notice to clients.  The firm and lawyer should provide notice of the lawyer’s “pending departure in a timely fashion to clients for whose active matters (s)he currently is responsible or plays a principal role in the current delivery of legal services.”
  • Who sends it? When possible, joint notification from the firm & departing lawyer is preferred.
  • Include:
    • when the lawyer is leaving & where the lawyer is going;
    • whether the firm & lawyer are able & willing to continue representing the client;
    • that the client has the absolute right to choose to remain with the firm, to go with the lawyer, or to secure new representation altogether.
  • Do not include:  The departing lawyer “should not urge the client to sever its relationship with the firm . . . [or] disparage the firm.”
  • Other considerations.  The departing lawyer should be mindful not to:
    •  engage in any conduct that is deceitful or dishonest (secreting files is big no-no);
    • do anything that would put client property, data, information, or confidences at risk; or,
    • improperly solicit business from clients with whom the lawyer has no prior working relationship.

Meanwhile, the firm should ensure that the client file and any unearned fees follow the client if the client leaves the firm. (I’d caution against transferring a file or funds without the client’s written consent.)

When a lawyer leaves a firm for other pastures, the issue that seems to arise the most involves what, if anything, the departing lawyer may keep.  Per the ABA Opinion, the departing lawyer might want to retain “files and other documents such as research memoranda, pleadings, and forms.”  If so,

  • “to the extent that these documents were prepared by the lawyer and are considered the lawyer’s property or are in the public domain, she may take copies with her.  Otherwise, the lawyer may have to obtain the firm’s consent to do so.”

That being said, a lawyer who is leaving a firm should exercise restraint when packing.  Here’s a blurb from the Illinois Attorney Registration & Disciplinary Commission’s Leaving a Law Firm: A Guide to the Ethical Obligations in Law Firm Departure:

  • “The departing lawyer may not remove client files without the client’s consent and even when the client requests to have the file transferred to the departing lawyer, the file should not be removed until the firm has been given notice and opportunity to copy the file. See In re Cupples, 952 S.W.2d 226, 236-37 (Mo. 1997) (lawyer reprimanded for violating his duties to former law firm and law firm’s client by removing files without client consent); Maryland Attorney grievance Comm’n. v. Potter, 844 A.2d 367 (Md.2004) (90-day suspension on departing associate who secretly removed two client files and destroyed firm’s computer records for those clients even though lawyer believed he was acting in clients’ best interests out of concern the law firm might act to thwart their choice).”

Or, as the San Diego County Bar Association advises:

  • “In those circumstances where a departing attorney wants to take client’s files from his/her existing firm, the departing attorney should consider whether those documents were created for the attorney’s general use or were they created specifically for the client’s representation.”

I’ll end with this.

A very good friend once told me that if things ended well, they wouldn’t end.  Excellent point, and one that made sense in the context of what we were discussing.

However, in the context of a lawyer’s departure from a law firm, I prefer “some things end better than others.”  Thus, I think it’s critical for lawyers and firms not to make the breakup any worse than necessary. Or, as the Washington State Bar Association concluded last year in Advisory Opinion 201801:

  • “The personal dynamics of a lawyer departing a firm have the potential to outrun the important professional obligations all concerned have toward the clients involved. Lawyers and their respective Old and New Firms must ensure that client considerations remain paramount despite the often-difficult personal dynamics involved.”

In other words, do no harm to the client.

That’s good advice.

Because breaking up isn’t easy, I know.  Sparing the client harm?  Knowing me, knowing you it’s the best we can do.

See. I told you there’d be no Neil Sedaka references.

 

Image result for abba knowing me knowing you live

Other resources

 

 

 

 

Monday Morning Answers #178

Happy Monday!

It’s a happy one here.  Because we have the LARGEST HONOR ROLL EVER! Thank you!

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

Honor Roll

  • Karen Allen, Esq.; Karen Allen Law
  • Matthew AndersonPratt Vreeland Kennelly & White
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, John Marshall Law School
  • CeCe ConradCostello, Valente & Gentry
  • Honorable John M. Conroy, United States Magistrate Judge, District of Vermont
  • Beth DeBernardi, Administrative Law Judge, VT Dept. of Labor
  • Andrew DelaneyMartin & Delaney Law Group
  • Erin GilmoreRyan Smith & Carbine
  • Laura Gorsky, Esq.
  • Robert Grundstein, Esq.
  • Tammy Heffernan, Esq.
  • Anthony IarrapinoWilschek & Iarrapino
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy,  JB Kennedy Associates, Blogger’s Mom
  • Mark Kennedy, Blogger’s Dad
  • Deborah Kirchwey, Esq.
  • John LeddyMcNeil Leddy & Sheahan
  • Lon McClintockMcClintock Law Offices
  • Jack McCullough, Vermont Legal Aid, Project Director – Mental Health Law Project
  • Hal Miller, First American
  • Herb Ogden, Esq.
  • Eric ParkerBauer Gravel & Farnham
  • Kristen ShamisMonaghan, Safar, Ducham
  • Thomas Wilkinson, Jr., Cozen O’Connor
  • Zachary York, Vermont Superior Court, Chittenden Civil 

Answers

Question 1

Which is most accurate?   A lawyer:

  • A.  may have sexual relations with a client.
  • B.  may have sexual relations with a client, but only if the relationship doesn’t cause the lawyer to violate the rules (for instance, by creating a conflict of interest).
  • C.  shall not have sexual relations with a client.
  • D.  shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.  V.R.Pr.C. 1.8(j); “Court Adopts Sex Rule”

Question 2

One of the Rules of Professional Conduct requires a lawyer to maintain a system that includes “records documenting timely notice” to clients of receipts and disbursements from trust.  The same rule requires a lawyer to do something else in a “timely” fashion.  What?

Question 3

Lawyer called with an inquiry.  My response:

  • “Basically, don’t state or imply that you’re disinterested.  Correct any misunderstanding she has about your role.  And if her interests are likely to conflict with your client’s, don’t give her any advice other than the advice to secure counsel.”

Most likely, who is the “she/her” in my response?

  • A.   Another of Lawyer’s clients
  • B.   Lawyer’s former client
  • C.   An unrepresented person with whom Lawyer is dealing on behalf of a client.  V.R.Pr.C. 4.3
  • D.  a prospective juror

Question 4

Fill in the blank.

Per Comment [1] to a particular rule:

“_________________   partially true but misleading statements or omissions that are the equivalent of affirmative false statements.”

  • A.    A lawyer does not violate this rule by making . . .
  • B.    Misrepresentations can also occur by . . . . V.R.Pr.C. 4.3 (my dad appreciates all of you who mentioned you thought long & hard about “D”)
  • C.    Negotiations necessarily include . . .
  • D.    According to my dad, Lawyers excel at making  . . .

Question 5

In honor of Breaking Bad and the release of El Camino:

Breaking Bad aired for 5 seasons.  The first episode of each season included a “flash forward” scene set in a restaurant.  The restaurant is where Saul Goodman/Jimmy MGill ends up working under an assumed identity after fleeing drug-dealing Neo-Nazi assassins, his law firm, and (presumably) New Mexico’s disciplinary authorities.

In real-life, the restaurant is a massive chain often found in malls and airports.  It specializes in sugary rolls, coffee, and frozen drinks.  My favorite is in the Charlotte (NC) airport.

Name the restaurant.

CINNABON

Image result for saul goodman cinnabon

Five for Friday #178

Welcome to Friday.

WordPress saves drafts.  I just deleted two that I’d authored, but not posted.

I awoke very early this morning.  Sadly, it wasn’t long after waking that I realized I’d forgotten to buy coffee last night.  Thus, I was stuck with brewing the decaf that I keep on hand for when my dad visits.  I drank it while I drafted the blog posts.  Unlike my coffee, each seemed good in the moment.

The first worked “178” into a blog that referenced Luke Bryan, tonight’s Flynn Theatre performance of a musical that parodies The Office, Major Jon Andre, El Camino (the Breaking Bad movie that dropped today), tomorrow’s Dartmouth v. Yale football game, hot dogs, my mom, a half marathon in Concord, and a high school basketball game that I coached in 2009.

Whoa!  That must be an awesome blog post!

Maybe. But it also included at least one paragraph that was too witty for its own good and another that a psychoanalyst might tell you reflected a passive-aggressive effort to get fired.

The second tied “178” to a description of how it sometimes troubles me that I don’t have the courage to leave this job and try something new.  A thing at which – at least in the comfortable courage of my imagination over a beer in my garage – I courageously excel.

Whoa! What an uplifting post Mike!

With the two posts drafted, I left to shower and contemplate which to publicize.

For the entire shower – which, with my hairline, wasn’t long – something didn’t feel right.  My brain kept saying “don’t post either.” The nagging inner voice reminded me of advice I’ve given to attorneys.

At CLEs, I often urge lawyers to trust their guts.  If it feels like a conflict, it probably is.  If your inner voice is telling you that you should withdraw, you probably should.  Countless ethics inquiries end with a lawyer telling me “I thought that was the answer but needed to hear it from someone else.” Hey lawyers – trust yourselves! You’re usually right!

So, I decided to take my own advice and trust my inner voice.  Back at the kitchen counter, I deleted each of the drafts.

They say some things are better left unsaid.  They’re right.

But enough of this Irish melancholy!

The sun is shining, the foliage is peaking, and it’s not freezing.  That’s a recipe for a fantastic weekend.  I hope you get out to enjoy it!

I plan to.  I’m on the fence about The Office musical.  However, I intend to watch El Camino, get a hot dog with my mom at tomorrow’s Dartmouth-Yale game, and run a half marathon in Concord on Sunday.

And, without a doubt, come next week, I’ll be here.

Thanks for listening.

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

Which is most accurate?   A lawyer:

  • A.  may have sexual relations with a client.
  • B.  may have sexual relations with a client, but only if the relationship doesn’t cause the lawyer to violate the rules (for instance, by creating a conflict of interest).
  • C.  shall not have sexual relations with a client.
  • D.  shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.

Question 2

One of the Rules of Professional Conduct requires a lawyer to maintain a system that includes “records documenting timely notice” to clients of receipts and disbursements from trust.  The same rule requires a lawyer to do something else in a “timely” fashion.  What?

  • A.   reconcile a trust account.
  • B.   self-report a trust account overdraft to disciplinary counsel.
  • C.   pay into court funds in which a client & third person claim interests
  • D.  All of the above.

Question 3

Lawyer called with an inquiry.  My response:

  • “Basically, don’t state or imply that you’re disinterested.  Correct any misunderstanding she has about your role.  And if her interests are likely to conflict with your client’s, don’t give her any advice other than the advice to secure counsel.”

Most likely, who is the “she/her” in my response?

  • A.   Another of Lawyer’s clients
  • B.   Lawyer’s former client
  • C.   An unrepresented person with whom Lawyer is dealing on behalf of a client
  • D.  a prospective juror

Question 4

Fill in the blank.

Per Comment [1] to a particular rule:

“_________________   partially true but misleading statements or omissions that are the equivalent of affirmative false statements.”

  • A.    A lawyer does not violate this rule by making . . .
  • B.    Misrepresentations can also occur by . . . .
  • C.    Negotiations necessarily include . . .
  • D.    According to my dad, Lawyers excel at making  . . .

Question 5

In honor of Breaking Bad and the release of El Camino:

Breaking Bad aired for 5 seasons.  The first episode of each season included a “flash forward” scene set in a restaurant.  The restaurant is where Saul Goodman/Jimmy MGill ends up working under an assumed identity after fleeing drug-dealing Neo-Nazi assassins, his law firm, and (presumably) New Mexico’s disciplinary authorities.

In real-life, the restaurant is a massive chain often found in malls and airports.  It specializes in sugary rolls, coffee, and frozen drinks.  My favorite is in the Charlotte (NC) airport.

Name the restaurant.

Image result for el camino movie