Wellness Wednesday: Small Things

As many of you know, I’m a big believer that small things matter.

In my view, when working to address the larger challenges that face the legal profession, we too quickly write off suggestions that will help a little for no other reason than they won’t help enough.  With “help enough” often defined as “solve the entire problem.”  I’ve used the Starfish story to make my point.   I’ve also argued that while changing the world would be ideal, winning your 3-feet of influence is a great start.

Imagine if each of us did.

Wellness is one of the profession’s most significant challenges.  Fortunately, it appears that many within the profession are taking small steps to meet the challenge instead of searching for a non-existent magic cure.  Today, I’d like to share some examples with you.

  • 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.
  • the VBA now includes mindfulness & wellness programs for members at all its meetings.
  • practicing what it preaches, this summer, the VBA staff rotated thru 1/2-day Fridays.

Outside Vermont, and as reported by Law.Com’s Corporate Counsel section, legal departments within some of the nation’s largest businesses are making wellness part of their culture. For example:

    • law firms that bid for 3M’s outside legal work must disclose whether they’ve adopted the ABA Pledge on Lawyer Well-Being and the steps they’ve taken to promote well-being within their own firms.
    • Cummins is a Fortune 500 company that makes engines.  The in-house legal department has recently taken several steps aimed at wellness: health screenings, yoga instruction, and 20-minute breaks from meetings to go for a walk with someone you don’t know too well.
    • The in-house staff at Barclay’s must consider the effects that their requests will have on other lawyers.  For instance, unless absolutely necessary, supervising lawyers are discouraged from assigning work with a Monday deadline.

Finally, in July 2018, the Delaware Supreme Court issued an order addressing issues related to work life balance. Among other things, the Court

    • changed the deadline to file most pleadings from 11:59 PM to 5:00 PM after concluding that the 11:59 PM deadline had “contributed to a culture
      of overwork that negatively impacts the quality of life for Delaware legal
      professionals without any corresponding increase in the quality of their work product or the functioning of the judiciary;” and,
    • ordered all lower courts to consider adopting policies that would disfavor (1) Monday deadlines; (2) issuing dispositive opinions on Friday afternoons; and (3) scheduling oral arguments and trials in August; and,
    • ordered all lower courts to consider anything else that would “improve the quality of professional practice by and quality of life of Delaware legal professionals.”

The Delaware Court’s order doesn’t preclude “small things.” Neither should you, your office, or your firm.  No matter how small, every improvement will make a difference to someone.  And that’s what matters.

For ideas, check out the ABA Well-Being Toolkit for Lawyers and Legal Employers (or the same tookit, but in a nutshell).

wellness

ps:   speaking of small things, with this blog on my brain, my personal wellness program will undoubtedly include blaring Blink-182 in the garage while I grill tonight.  Bad karaoke is better than a life without karaoke.

 

Legal Ethics & Cannabis Clients’ Money

A few weeks ago, I presented at the VBA’s Basic Skills program.  It’s a day-long program that focuses on the basics of Vermont practice & procedure and that is designed to provide new attorneys an opportunity to comply with the CLE components of Rules 12 and15 of the Rules of Admission.

My presentation focuses on wellness, civility, and the nuances of Vermont’s Rules of Professional Conduct.  On the latter, and to assist the lawyers who are waiving in from other states, I point out instances in which our rules might differ from the rules in other jurisdictions.  True to my Friday form, I do so via the pub quiz method.  Question 3 is relevant to today’s blog post.  Here it is:

Question 3

Rule 1.2(d) prohibits a lawyer from assisting or advising a client to
engage in conduct that violates the law. In Vermont, the rule poses issues for lawyers whose clients are involved with a particular industry.

What’s the industry?

The answer: cannabis.

Rule 1.2(d) draws no distinction between state and federal law, or between laws that are enforced more vigorously than others.  As such, in 2016, the Vermont Supreme Court adopted Comment [14] to Rule 1.2:

  • “[14] With respect to paragraph (d), a lawyer may counsel and assist a client regarding the validity, scope and meaning of Title 18, chapters 84, 84A, and 86 of the Vermont Statutes Annotated, and may assist a client in conduct that the lawyer reasonably believes is permitted by these statutes and the rules, regulations, orders, and other state and local provisions implementing the statutes.  In these circumstances, the lawyer shall also advise the client regarding the potential consequences of the client’s conduct under related federal law and policy.”

I’ve presented entire seminars on the legal ethics issues that arise when representing clients involved in the cannabis industry.  Sometimes new lawyers, as well as experienced lawyers who are not involved with the industry, chuckle at the notion that CLE is required or available on “smoking weed.”  Umm, it’s neither that simple nor a laughing matter.

As I point out: let’s say you represent a client who wants to apply for a zoning permit to open a cannabis-related business that is legal under Vermont law.  By assisting the client to apply for the permit are you assisting the client to violate federal law?

Hence Comment 14.

Last June, I posted Cannabis Competence.  My main point was that, as with any client, a lawyer owes a duty of competent representation to clients involved with the cannabis industry.  Near the end, I wrote:

  • “Finally, I’d argue that competent representation includes thorough advice on money.  As Vermont Biz points out, for businesses that are otherwise legal under state law, federal law can create hurdles to financing.

Then, once financed, there’s the issue of what to do with the revenue.  At the end of May, Governing posted Despite State Support, Marijuana Banking Bill May Sink Again in Congress.  To me, the post highlights the need for attorneys – whether representing businesses or banks – to have a firm grasp of banking laws and regulations insofar as they relate to the cannabis industry.”

Today, I have an update on the banking bill.

Thomas Wilkinson is a lawyer at Cozen O’Connor and a regular member of this blog’s #fiveforfriday Honor Roll.  We’re connected on LinkedIn.  Today, Tom shared via LinkedIn a blog authored by an associate at his firm: Cannabis and CBD Companies One Step Closer to Federally Legal Banking Services.  It’s an excellent update on the status of the Secure and Fair Enforcement (SAFE) Banking Act of 2019.  And, therefore, relevant to the duty of competence owed to cannabis clients.

Image result for images of SAFE banking act

Related Posts:

 

 

Monday Morning Answers

As a Steelers fan, it didn’t surprise me to wake to the darkest, rainiest Monday in months.

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

Honor Roll

  • Karen Allen, Esq.
  • Alberto Bernabe, Professor, John Marshall Law School
  • Honorable John M. Conroy, United States Magistrate Judge, District of Vermont
  • Erin GilmoreRyan Smith & Carbine
  • Laura Gorsky, Esq.
  • Bob Grundstein, Esq.
  • John LeddyMcNeil, Leddy, & Sheahan
  • Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
  • Lon McClintock, Esq.
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Jeff MessinaBergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Herb Ogden, Esq.
  • Eric ParkerBauer Gravel & Farnham
  • Jim Runcie, Runcie & Ouimette
  • Thomas Wilkinson, Jr., Cozen O’Connor
  • Zachary York, Vermont Superior Court, Chittenden Civil 

Answers

Question 1

Lawyer called me with an inquiry. I listened, then said “per the rule, the duty kicks in when you have knowledge of a violation that raises a substantial question as to honesty, trustworthiness, or fitness.”

What duty? The duty:

  • A.  to withdraw from representing a client provided false evidence to a court.
  • B.  to self-report to disciplinary counsel.
  • C.  to report another lawyer to the appropriate professional authority.  V.R.Pr.C. 8.3
  • D.  to “go up the ladder” and report a constituent’s misconduct to a higher authority within the organization that the lawyer represents.

Question 2

Lawyer and Client agree to a fee that, on its face, is unreasonable.  Which is most accurate?

  • A. The client agreed to the fee, ergo no violation.
  • B. It’s only a violation if Lawyer actually charges the fee.
  • C. The agreement violates the applicable rule.  V.R.Pr.C. 1.5(a)
  • D. Vermont is one of two states whose rules do not address legal fees.

Question 3

If a lawyer, the lawyer’s client, or a witness has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall ____________________________.

  • A.  withdraw.
  • B.  advise the client to disclose to the tribunal, but abide by the client’s decision whether to do so.
  • C.  A and B.
  • D.  take reasonable remedial measures, including, if necessary, disclosure to the tribunal. V.R.Pr.C. 3.3(a)(3)

Question 4

When it comes to imputed conflicts of interest, which group is treated differently than the other two?

  • A. Current or former government lawyers.
  • B. Lawyers who, under the auspices of programs sponsored by a nonprofit or court, provides short-term legal services without expectation by lawyer or client of continuing representation.
  • C.  Lawyers who change firms and who, while at their old firm, participated personally and substantially in a matter in which their new firm represents a client whose interests are materially adverse to the interests of the client represented by the old firm.
  • D.  They’re all treated the same.

Poorly phrased question and choices.  The lawyers described in C cannot be screened.  Rather, per Rule 1.10(a)(2) , the new firm is disqualified. The key is the “personal and substantial participation” in the matter at the old firm.  As for “A,”  we do not impute all conflicts when lawyers move to and from government practice.  Also, per Rule 6.5, we do not impute all conflicts following participation in legal clinics of the type described in “B.”

Question 5

  1. If you noticed today’s opening lyrics, the verse is about high school football
  2. Rule 8.4(b) prohibits lawyers from engaging in conduct that involves a serious crime

Question: yesterday, a real-life lawyer was sentenced to 1 month in prison for his role in a college admissions scandal (one that also ensared Aunt Becky of Full House fame).  The code name for the FBI’s investigation into the scandal is also the name of a movie about high school football.

Name the movie/code name of the scandal.

Varsity Blues.  The ABA Journal reported the lawyer’s prison sentence here.

Image result for varsity blues images

Five for Friday #177

“Another Friday night
There’s a line of cars leaving
Home team’s got an out of towner
Me, I’m sitting on the hood of mine drinking
Just a parking lot down and outer.”

Eric Church – Round Here Buzz

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

Image result for eric church images

Welcome to #177!

The first part of today’s intro is for my readers who are old school rap fans.

I had a moment yesterday.  A moment that lasted for about 7 miles.

My two most recent blog posts were:

Last night, I ran after work.  It was a fantastic long run in perfect running weather.  Within the first mile, I started thinking about how to tie this intro to the number “177.”  With the two most recent posts fresh in my mind, my thoughts drifted to Dre, Snoop, and Deep Cover. I sang as I ran, trying my best to figure out how in the world I could tie the song to legal ethics.  But, also, with a nagging feeling that something wasn’t right.  The words in my head sounded off, like I had them wrong. 

Around mile 8, it hit me: I was letting this week’s number mess with my brain.  It’s not 177, but 187 that’s the operative number in Deep Cover.  Phew!  It’d have been quite the stretch to work that into a legal ethics blog.  Relieved, I soared through the final two miles.

Anyhow, thank you to all who submitted stories in response to my Speechless post a few weeks ago.  I received around a dozen, most of which included a disclaimer “you can’t post this.”  True enough! It’s stunning how much R-rated stuff goes on in depositions and hearings!  Of those fit to print, two of my favorites:

  • the lawyer who, while sitting at counsel table during opposing counsel’s opening statement, managed to leap out of his seat and catch opposing counsel as opposing counsel fainted, saving opposing counsel’s head from crashing into the courtroom floor.
  • the lawyer who, while giving an opening argument, couldn’t figure out why jurors had such strange looks on their faces.  Eventually, the flummoxed lawyer realized that he was the only person present who hadn’t yet noticed that a crow was flying around the courtroom.

A life saver and a lawyer incredibly focused on behalf of his client!  Professionalism, civility, and competence.  That’s the Vermont bar at its best!

Onto the quiz!

ps: on the subject of competence, kudos to the lawyer who responded to yesterday’s post by pointing out that the D.C. lawyer who requested “the honor” of disbarment by citing to Public Enemy was, truly, a Rebel Without a Pause. As I told her, best comment ever on this blog.

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

Lawyer called me with an inquiry. I listened, then said “per the rule, the duty kicks in when you have knowledge of a violation that raises a substantial question as to honesty, trustworthiness, or fitness.”

What duty? The duty:

  • A.  to withdraw from representing a client provided false evidence to a court.
  • B.  to self-report to disciplinary counsel.
  • C.  to report another lawyer to the appropriate professional authority.
  • D.  to “go up the ladder” and report a constituent’s misconduct to a higher authority within the organization that the lawyer represents.

Question 2

Lawyer and Client agree to a fee that, on its face, is unreasonable.  Which is most accurate?

  • A. The client agreed to the fee, ergo no violation.
  • B. It’s only a violation if Lawyer actually charges the fee.
  • C. The agreement violates the applicable rule.
  • D. Vermont is one of two states whose rules do not address legal fees.

Question 3

If a lawyer, the lawyer’s client, or a witness has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall ____________________________.

  • A.  withdraw.
  • B.  advise the client to disclose to the tribunal, but abide by the client’s decision whether to do so.
  • C.  A and B.
  • D.  take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

Question 4

When it comes to imputed conflicts of interest, which group is treated differently than the other two?

  • A. Current or former government lawyers.
  • B. Lawyers who, under the auspices of programs sponsored by a nonprofit or court, provides short-term legal services without expectation by lawyer or client of continuing representation.
  • C.  Lawyers who change firms and who, while at their old firm, participated personally and substantially in a matter in which their new firm represents a client whose interests are materially adverse to the interests of the client represented by the old firm.
  • D.  They’re all treated the same.

Question 5

Shout out to Keith Roberts!

  1. If you noticed today’s opening lyrics, the verse is about high school football
  2. Rule 8.4(b) prohibits lawyers from engaging in conduct that involves a serious crime

Question: yesterday, a real-life lawyer was sentenced to 1 month in prison for his role in a college admissions scandal (one that also ensared Aunt Becky of Full House fame).  The code name for the FBI’s investigation into the scandal is also the name of a movie about high school football.

Name the movie/code name of the scandal.

 

 

 

 

 

 

 

 

 

 

.

Public Enemy, Flavor Flav, and a very strange disciplinary case.

In 1990, Public Enemy released Fear of a Black Planet.  I doubt anyone ever expected that, 29 years later, two singles from the album would play somewhat prominent roles in a blog post on the nuances of the attorney discipline process.

Image result for public enemy images

One of the songs is “Can’t Do Nuttin’ For Ya Man.”  It includes the lyrics:

“It was you that chose your doom
You built the maze you can’t get through
I tried to help you all I can
Now I can’t do nuttin’ for you man.”

Last week, the District of Columbia Court of Appeals Board on Professional Responsibility said pretty much exactly that to a lawyer.  Strangely, the case was one in which the lawyer not only asked to be disbarred, but invoked Public Enemy (and Flavor Flav) in making the request.  More on that in a moment.

I first learned of the story via Professor Bernabe’s blog.  It was also reported by the ABA Journal, the Legal Profession Blog, and Above the Law.  Here are the opening sentences from the Board’s Report and Recommendation:

  • “In this extraordinary matter, Disciplinary Counsel seeks to have Respondent
    disbarred. Respondent has also unequivocally, and colorfully, sought to be disbarred.”

Intuition likely tells you “end of story.”  Not so fast my friends.

In 2017, D.C.’s Office of Disciplinary Counsel (“ODC”) served the respondent with four separate complaints.  The respondent did not answer, appear in any of the subsequent proceedings, or otherwise present a defense.  Rather, in March 2018, the respondent sent the following email to the disciplinary prosecutor:

“Please don’t kill trees, waste taxpayer resources and ODC personnel on
me.
ODC has no credibility or legitimacy to me. Or the drivel you generate.
You are simply dishonest lawyers who do nothing to regulate dishonest
lawyers.
And racists to boot.
Rather than wasting time, money, and paper on your sophistries, please
disbar me.
Disbarment by ODC would be an honor.
To date, aside from competing in the triathlon world championships,
my greatest honors are my PhD from UCLA and my law degree from
Boalt.
But a disbarment letter from ODC will be framed and go up right
alongside those diplomas.
Please do me the honor of disbarring me.
I will be so very very proud.”

Nevertheless, as required by D.C.’s rules of disciplinary procedure, ODC puts on its case.

Now, you might ask, “why?”  Well, “because.”

Like many jurisdictions, a lawyer under investigation by D.C. disciplinary authorities cannot simply resign their license.  Rather, there are specific steps that must be followed in order to consent to disbarment.

Vermont is similar.  Rule 19 of Administrative Order 9 sets out the process by which a lawyer under disciplinary investigation can consent to disbarment.  While the issue has never been litigated here, I doubt that an email to Disciplinary Counsel asking for “the honor” of disbarment would be deemed to comply with Rule 19.

Which brings me back to the D.C. case.

As I mentioned, ODC puts on its case.  It took four days and resulted in a hearing committee issuing a 252-page decision in which it recommend a 3-year suspension of the respondent’s law license.  ODC appealed, asking the Board to disbar the respondent.

In July, the Board ordered the respondent to show cause why it “should not recommend . . . that [he] be disbarred forthwith, based on his consent to be disbarred, without further consideration of the proceedings against him.”  ODC responded that the respondent should be “disbarred on the merits, and not on the basis of his email alone.”  In other words, ODC argued that the respondent had not complied with the D.C. rule on consent disbarment, but should be disbarred based on the conduct that was the subject of the underlying disciplinary charges.

The respondent did not respond to the Show Cause order.  Per the Report & Recommendation:

  • “Instead, he sent a mailing to the Office of Disciplinary Counsel. In that mailing, he enclosed a number of copies of a color image of Flavor Flav from the hip-hop group Public Enemy with the text ‘ODC is a joke’ in all caps at the top of the page in what one can only assume was a reference to Public Enemy’s 1990 song ‘911 is a joke.'”

And there you have it: this post’s second reference to a song from Fear of a Black Planet.

The Board obliged, essentially concluding that while the committee hadn’t recommended disbarment, the respondent had chosen his own doom.  That is, “in light of the Respondent’s unambiguous expression that he seeks to be disbarred, and his response to the Show Cause Order, we conclude that his response is the functional equivalent of meeting the requirements of” D.C.’s rule on consent disbarment.  As such, the Board recommended that the D.C. Court of Appeal “enter an order disbarring Respondent on consent, forthwith and without further consideration of the evidence in the case.”

Two Board members dissented.  While conceding that the respondent’s conduct was “inexplicable,” they argued that his email did not comply with the rule on disbarment by consent.  As such, they dissented “from the Board’s decision to decline to provide the Court with a report and recommendation based on the Board’s review of the Hearing Committee’s findings and recommendations.”

I’m interested in how the Court responds.  Having prosecuted more than one case in which a lawyer failed to respond or defend, I understand the desire to cut to the chase.  But rules are rules and, unless or until it’s changed, the process is the process.  Thus, I think I’d have found myself in the dissent.

I’ll track this and update this post once the Court rules.

Image result for public enemy rock hall of fame