Monday Morning Answers #183

Welcome to Monday!  Friday’s questions are here.  So many readers miss Bove’s!  The answers follow today’s Honor Roll.

Honor Roll

• Karen Allen, Esq.; Karen Allen Law
• Evan Barquist, Montroll Backus & Oettinger
• Penny Benelli, Dakin & Benelli
• CeCe Conrad, Costello, Valente & Gentry
• Honorable John M. Conroy, United States Magistrate Judge, District of Vermont
• Corinne Deering, PACE Registered Paralegal®.  Paul Frank & Collins
• Erin Gilmore, Ryan Smith & Carbine
• Robert Grundstein, Esq.
• Glenn Jarrett, Jarrett & Luitjens
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
• Elizabeth Kruska, President-Elect, VBA Board of Managers
• John Leddy, McNeil Leddy & Sheahan
• Tom Little, Little & Cicchetti
• Pam Loginsky, Washington Association of Prosecuting Attorneys
• Hal Miller, First American
• Herb Ogden, Esq.
• Kristen Shamis, Monaghan, Safar, Ducham
• Jonathan Teller-Elsberg, Vermont Law School, JD Candidate
• Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

Consider the following: (1) the time & labor required; (2) the results obtained; (3) the lawyer’s experience, reputation and ability.

Each is mentioned in the rule that governs:

• A.   Competence
• B.   Diligence
• C.   Conflicts
• D.   Fees  V.R.Pr.C. 1.5

Question 2

At a CLE, I give the following short answer to a question: “(1) the client gives informed consent; or (2) it’s impliedly authorized to carry out the representation.”  Most likely, it was a question on the rule that governs:

• A.  Conflicts of Interest – Concurrent Clients
• B.  Conflicts of Interest – Former Clients
• C.  Confidentiality of Information V.R.Pr.C. 1.6(a) (my comments are two of the exceptions to the rule against disclosing information relating to the representation.)
• D.  Disbursed funds from trust in reliance upon a deposit that does not yet constitute “collected funds.”

Question 3

Attorney called me with an inquiry. I listened, then said “the rule says that you can’t approach her in person, by phone, or by real-time electronic communication unless she’s (1) a lawyer; or (2) someone with whom you have family, close personal, or prior professional relationship.”

Who is the “she” I referred to in my response?

• A.  a prospective client from whom Attorney wants to solicit employment.  V.R.Pr.C. 7.3
• B.  a juror.
• C.  a represented witness in a matter in which Attorney represents a party.
• D.  an employee of an organization that is represented in a matter in which Attorney’s client is adverse to the organization.

Question 4

Last month, Lawyer served as a mediator in Oswald v. Ruby.  The matter did not resolve at mediation. Now, Ruby wants to retain Lawyer in the same matter.

Which is most accurately states the rule? Lawyer:

• A.  may not represent Ruby.
• B.  may represent Ruby if both Oswald & Ruby give informed consent, confirmed in writing.  V.R.Pr.C. 1.12(a)
• C.   may represent Ruby if Oswald did not disclose in the mediation any information that could be “significantly harmful” if used against Oswald.
• D.  B & C.

Question 5

Yesterday, I blogged about lawyers convicted of crimes. Today, speaking of lawyers convicted of crimes, conspiracy theories and JFK . . .

. . . Jim Garrison gained fame as the District Attorney for New Orleans.  In 1962, he accused several judges of racketeering and conspiring against him.  The judges charged him with criminal defamation. He was convicted. However, on appeal, the United States Supreme Court overturned the conviction, concluding that the statute Garrison was charged with violating was unconstitutional.

Years later, Garrison began his own investigation into the JFK assassination.  The investigation culminated with the arrest and trial of Clay Shaw for his alleged participation in a conspiracy to assassinate President Kennedy.  After a trial that took over a month, a jury needed less than an hour to acquit Shaw.

Garrison and the trial were featured in the Oliver Stone movie JFK.  Kevin Costner starred as Garrison. Garrison himself appeared in the movie, playing a famous judge.  The judge was involved in both the criminal defamation case against Garrison and an investigation of the JFK assassination.

Name the judge.

Chief Justice Earl Warren.  He was Chief Justice when the Court issued Garrison v. Louisiana and, later, chaired the Warren Commission.

Five for Friday #183

Today always makes me think of Bove’s.

For those of you who don’t know, Bove’s was a Burlington institution; an Italian restaurant in the Old North End that opened on December 7, 1941, and closed in 2015.  While the restaurant is no longer, Mark’s sauces, meatballs, and recipes remain among my favorites.  Although the kid in me (and I’m guessing in my brother) longs for that bread that came with every meal at the restaurant itself.  Oh, that bread.

Alas, I digress.

The fact that I think of the restaurant on November 22 has nothing to do with this week’s number, 183, or legal ethics.  Today is the anniversary of the JFK assassination.  I have no idea why I remember this, but Bove’s is where my mom and some of her friends went to watch news coverage of the event.

Generally, I don’t believe in conspiracy theories.  I have 2 exceptions:

1. The NFL’s obvious conspiracy to prop up the Patriots over the past 18 years; and,
2. JFK.

When it comes to the JFK assassination, I cannot get enough conspiracy theory.  At times, I think I’ve believed in every single one of them.  I’m obsessed with the smallest of details.

I’m also struck by the lack of emotion I attach to such a tragic event.  Time is funny.  Almost frivolous.

Back then, my mom was still a few years away from even meeting my dad.  For her and her friends, as college-aged kids, the event must have been one of the most significant of their lives, at least up until that point.  In the moment, I’m guessing they never could’ve conceived that it ever would be perceived as anything but crushing.

Then there’s me.

Yes, I know all about the day.  Nevertheless, it takes about two seconds for my thoughts to progress from wondering how terrified Jackie must have been & what really happened in Mexico City, to the magic loogie of Seinfeld fame & a mental note that I really should watch 11.22.63.  It’s why I subscribed to Hulu in the first place.

Isn’t that bizarre? An event that left my mom at an abject loss in Bove’s, she and her friends questioning their faith in the world that any children they might have would grow up in, leads one of those children to thinking of streaming options.

I’ve no idea what to make of that.  Perhaps it’s a reminder that no matter what it is that gets you in a crazy world  — JFK dying too young, Bove’s closing, the Patriots winning —  this too shall pass.

Onto the quiz!

Rules

• None.  Open book, open search engine, text-a-friend.
• Exception:  Question 5.  We try to play that one honest.
• 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
• Share on social media.  Hashtag it – #fiveforfriday

Question 1

Consider the following: (1) the time & labor required; (2) the results obtained; (3) the lawyer’s experience, reputation and ability.

Each is mentioned in the rule that governs:

• A.   Competence
• B.   Diligence
• C.   Conflicts
• D.   Fees

Question 2

At a CLE, I give the following short answer to a question: “(1) the client gives informed consent; or (2) it’s impliedly authorized to carry out the representation.”  Most likely, it was a question on the rule that governs:

• A.  Conflicts of Interest – Concurrent Clients
• B.  Conflicts of Interest – Former Clients
• C.  Confidentiality of Information
• D.  Disbursed funds from trust in reliance upon a deposit that does not yet constitute “collected funds.”

Question 3

Attorney called me with an inquiry. I listened, then said “the rule says that you can’t approach her in person, by phone, or by real-time electronic communication unless she’s (1) a lawyer; or (2) someone with whom you have family, close personal, or prior professional relationship.”

Who is the “she” I referred to in my response?

• A.  a prospective client from whom Attorney wants to solicit employment.
• B.  a juror.
• C.  a represented witness in a matter in which Attorney represents a party.
• D.  an employee of an organization that is represented in a matter in which Attorney’s client is adverse to the organization.

Question 4

Last month, Lawyer served as a mediator in Oswald v. Ruby.  The matter did not resolve at mediation. Now, Ruby wants to retain Lawyer in the same matter.

Which is most accurately states the rule? Lawyer:

• A.  may not represent Ruby.
• B.  may represent Ruby if both Oswald & Ruby give informed consent, confirmed in writing.
• C.   may represent Ruby if Oswald did not disclose in the mediation any information that could be “significantly harmful” if used against Oswald.
• D.  B & C.

Question 5

Yesterday, I blogged about lawyers convicted of crimes. Today, speaking of lawyers convicted of crimes, conspiracy theories and JFK . . .

. . . Jim Garrison gained fame as the District Attorney for New Orleans.  In 1962, he accused several judges of racketeering and conspiring against him.  The judges charged him with criminal defamation. He was convicted. However, on appeal, the United States Supreme Court overturned the conviction, concluding that the statute Garrison was charged with violating was unconstitutional.

Years later, Garrison began his own investigation into the JFK assassination.  The investigation culminated with the arrest and trial of Clay Shaw for his alleged participation in a conspiracy to assassinate President Kennedy.  After a trial that took over a month, a jury needed less than an hour to acquit Shaw.

Garrison and the trial were featured in the Oliver Stone movie JFK.  Kevin Costner starred as Garrison. Garrison himself appeared in the movie, playing a famous judge.  The judge was involved in both the criminal defamation case against Garrison and an investigation of the JFK assassination.

Name the judge.

Facebook Post Leads to Public Reprimand

I’ve blogged often on the risk associated with disclosing information relating to the representation of a client.  At times, I sense that lawyers think I’m exaggerating to make a point.

I’m not.

Earlier this week, the Legal Profession Blog posted Public Discipline For Facebook Posts That Violated Duty Of Confidentiality. The post shares this opinion from the Massachusetts Board of Bar Overseers.

Briefly, a lawyer represented Jane Doe in connection with a petition for guardianship of her grandson.  Following a confidential juvenile hearing, the lawyer posted the following on his personal Facebook wall:

“I am back in the Boston office after appearing in Berkshire
Juvenile Court in Pittsfield on behalf of a grandmother who
was seeking guardianship of her six year old grandson and
was opposed by DCF yesterday. Next date-10/23.”

Two people commented.

The first asked the grounds on which DCF opposed the petition.  The lawyer replied:

“GM [grandmother] will not be able to ‘control’
her daughter, the biological mother, and DCF has ‘concerns.’ Unspecific.” 

The second asked if DCF preferred foster care.  The lawyer replied:

“The grandson is in his fourth placement in foster care since his removal from GM [grandmother]’s residence in late July. I will discover what DCF is doing or not doing as to why DCF opposes the GM [grandmother] as guardian. More to come.”

Eventually, Jane Doe’s daughter saw the post and comments and told Jane Doe about them. Doe sent the lawyer an email in which she stated that he

“seem[ ed] to think that discussing my custody case (and who knows what else) with your Face book [sic] buddies on an open account … is okay and at the least just [a] mistake. I beg to differ. Posting client information on Face book [sic] is a violation of the attorney client law.”

The lawyer replied that he had not disclosed protected information and that his post indicated “from where I was returning and DCF’s position only.”

The MA disciplinary prosecutor charged the lawyer with violating Rule 1.6(a) of the Massachusetts Rules of Professional Conduct.  With few exceptions, none of which were present, the rule states that a lawyer “shall not reveal confidential information relating to the representation of a client.”

(I emphasized confidential.  Why?  Because Vermont’s rule isn’t as narrow.  Vermont’s rule states that a lawyer “shall not reveal information relating to the representation of a client.”)

Anyhow, the MA rules defines “confidential information” as “information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) is likely to be embarrassing or detrimental to the client if disclosed, or ( c) information that the lawyer has agreed to keep confidential.”

At the trial level, the disciplinary prosecutor argued (b).  That is, that the Facebook post revealed information that was likely to be embarrassing or detrimental to Jane Doe if disclosed.

The hearing committee recommended dismissal of the disciplinary charges.  Upon review, the Board of Bar Overseers characterized the committee’s decision as follows:

• “In recommending dismissal of the petition for discipline, the hearing committee
  concluded that, ‘the information at issue could only be embarrassing or detrimental to Doe if it could reasonably be linked to her.’ Based on its reading of [the rule] the hearing committee concluded that, ‘there must be enough revealed to get to a certain threshold, some identifiable or linear nexus reasonably connecting the information to a particular person.’ Thus, in recommending dismissal of the petition, the hearing committee found that, ‘There is no reasonable likelihood that the client could have been recognized.'”

The Board disagreed.

First, the Board concluded that the Facebook post was “confidential” because the disclosure that Jane Doe and her grandson were involved in a DCF matter was likely be embarrassing or detrimental to Jane Doe.

Next, the Board noted it was enough that Jane Doe and her daughter had recognized the post as referring to the lawyer’s representation of Jane Doe.  More specifically, the Board rejected the hearing committee’s conclusion that “there must be enough revealed to get to a certain threshold, some identifiable or linear nexus reasonably connecting the information to a particular person.”  Rather, after concluding that the daughter, who was not the lawyer’s client, figured out the the post was about her mother, the Board wrote:

• “Even if there were no evidence that a third party actually recognized the client in the post, we would still conclude that the respondent had violated Rule l.6(a). There is no requirement that a third party actually connect the dots. If it would be reasonably likely that a third party could do so, the disclosure runs afoul of the rule. In addition to her daughter knowing about the case, Doe could have mentioned to a friend that the respondent was representing her in a case (perhaps in connection with making a referral). If the friend looked up the respondent on Facebook, the friend would learn about the ’grandmother’ and her litigation with DCF. There are numerous other reasonable scenarios.”

Now, I know what you’re thinking:  if that’s the rule, how can I ever run anything by another lawyer who isn’t in the same office as I am? The Board’s answer:

• “In posting on Facebook, the respondent did not seek advice from other lawyers, nor can we discern any other purpose that would have served his fiduciary duty to his client. There is no legitimate analogy between seeking advice from other lawyers and the respondent’s Facebook post.”

Turning to the appropriate sanction, the Board publicly reprimanded the lawyer. While dissenting members urged a private admonition, the Board stated:

• “The post is no different than publishing the facts in a newspaper or broadcasting them on television. Furthermore, the matter discussed by the respondent here was a sensitive child custody case that our legislature has deemed to be worthy of confidential protection by statute [citation omitted]. The respondent’s conduct ignored not only the basic tenets of Rule 1.6, but the basic confidentiality requirements that all attorneys who handle these sort of child custody and protection matters should honor.”

The Board concluded:

• “Confidentiality is a central tenet of our profession.  If nothing else, the public knows that attorneys are obligated to protect their confidences.  This obligation exists to encourage clients to be truthful and to place great trust in their counsel.  By posting information about his client on Facebook, the respondent jeopardized that trust.  Public discipline is warranted.”

When it comes to disclosing information relating to the representation of a client, my thoughts remain the same.  Unless required or permitted by the rule, don’t.  As this case proves, “not much” can be “too much.”

 Related Posts:

• Don’t Post That
• Keep Quiet & Lawyer On
• Disclosing Information That Is Public Record
• ABA & Client Confidences: It’s Deja Vu All Over Again
• Can’t keep quiet? Try harder.
• Hey Lawyers! STFU!!!

Criminal Convictions, Interim Suspensions & Operation Varsity Blues

A few weeks ago, Question 5 in the #fiveforfriday quiz was:

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 ensnared 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.

The answer:  VARSITY BLUES.  The ABA Journal reported the lawyer’s prison sentence here.  

A few readers asked whether I thought the lawyer would face disciplinary charges.  Given that most states’ ethics rules prohibit criminal conduct, I replied that I expected so.

Last week, the Appellate Division of New York’s First Judicial Department issued an order immediately suspending the lawyer from the practice of law.  The Court ordered that a final hearing be held within 90 days of the lawyer’s release from prison and that he appear and show cause “why a final order of censure, suspension or disbarment should not be made.”  JUSTIA has the order here.

The matter presents an opportunity for me to address something I’ve yet to cover: interim suspensions.

Most lawyers have a general understanding of the disciplinary process.  In a nutshell:

• complaint is filed;
• bar counsel “screens” the complaint;
• if the complaint is referred for investigation, disciplinary counsel investigates;
• if disciplinary counsel concludes that the lawyer violated the rules, disciplinary counsel must ask a hearing panel to review the conclusion for “probable cause;”
• if “probable cause” is found, formal disciplinary proceedings are initiated before a different hearing panel;
• if the panel concludes that the evidence clearly and convincingly establishes that the lawyer violated the rules, a sanction is imposed;
• both disciplinary counsel and the lawyer have 30 days to appeal;
• even if neither appeals, the Vermont Supreme Court can order review on its own motion;
• if no appeal is taken and the Court does not order review, the hearing panel’s decision becomes final and has the full force and effect of an order of the Court;
• if an appeal is taken or the Court orders review, the case is briefed, argued, and a decision issues.

I blogged in more detail on the process here.

But what happens if the conduct is so serious as to warrant action prior to an investigation and hearing?

Like apps of old, there’s a rule for that.  It’s Rule 18 of Administrative Order 9: “Interim Suspension for Threat of Harm.”  Essentially, if the evidence shows that a lawyer (1) has violated the rules or is under a disability; and, (2) “presently poses a substantial threat of serious harm to the public,” disciplinary counsel must notify the Supreme Court.  Upon reviewing the evidence and any “rebuttal evidence” offered by the lawyer, the Court “may enter an order immediately suspending the lawyer” pending the final resolution of the underlying complaint.

The rule isn’t invoked often. In my 12 years as disciplinary counsel, I think I requested fewer than 10 interim suspensions. When invoked, the Court typically schedules a hearing within days.

Turning back to the college admissions scandal and Operation Varsity Blues, the lawyer agreed to an interim suspension.  You might ask “why?”.   The conduct wasn’t related to the practice of law and didn’t cause any harm – actual or potential – to clients.

Here’s why.

New York disciplinary authorities charged the lawyer with violating the rule that prohibits lawyers from engaging in conduct that involves a serious crime.  Per the order, “this Court has held that during the pendency of a ‘serious crime’ proceeding, it is appropriate to suspend an attorney who has been convicted of a felony.”

The Vermont Supreme Court issued similar interim suspension orders a few times in the 2000s.  Our process, however, differs from New York’s.  Specifically, the New York order requires the lawyer to show cause why a final sanction shouldn’t be imposed. Here, even if a lawyer’s license is immediately suspended on an interim basis, the burden remains on disciplinary counsel to prove to a hearing panel by clear and convincing evidence that the lawyer violated the Vermont Rules of Professional Conduct.

Let’s hope that the instances in which disciplinary counsel must invoke the interim suspension rule remain few and far between.

 

Ethics in Practice

Every month, the ABA’s Law Practice Division publishes the digital magazine Law Practice Today.  This month’s is The Ethics Issue.  It’s devoted to legal ethics and professional responsibility.

The feature articles:

• When the Rules Stagnate Innovation, Change the Rules: Is the profession of law its own worst enemy when it comes to innovation?
• Maintaining Ethics Boundaries on the Gray Web of Marketing: The ethics of marketing online are not always black and white.
• Cybersecurity for Attorneys: Adressing the Legal and Ethical Duties Neglecting your legal and ethical duties to protect client data carries profound risks.
• Keep Your Mouth Shut: Why lawyers must avoid revealing confidential client information in an age of open mouths.

Other articles:

• Work-Life Synchronicity in the Legal Profession: How to get more joy out of all aspects of life – including work
• Measurement Matters in Diversity and Inclusion: The ABA Model Diversity Survey is an important tool for progress.
• Making it Rain – Amanda Wait: A Q&A with Amanda Wait of Norton Rose Fulbright
• Discovery Practices are Big Business: Our panel discusses the growth in law firm e-discovery groups, and what the future may hold for them.

I might analyze a few of these in more depth later this week.  For now, two of the four features should sound familiar to regular readers.

H/T and thank you to Professor Alberto Bernabe at the Professional Responsibility Blog.

Monday Morning Answers #182

May your Monday not have begun in an airport!  In the spirit of Question 5, all I can do now is shake it off, shake it off.

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

Honor Roll

• Carolyn Anderson, General Counsel, Green Mountain Power; Vice-Chair, Professional Responsibility Board
• Evan Barquist, Montroll Backus & Oettinger
• Honorable John M. Conroy, United States Magistrate Judge, District of Vermont
• Erin Gilmore, Ryan Smith & Carbine
• Laura Gorsky, Esq.
• Robert Grundstein, Esq.
• Glenn Jarrett, Jarrett & Luitjens
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
• John Leddy, McNeil Leddy & Sheahan
• Pam Loginsky, Washington Association of Prosecuting Attorneys
• Jeffrey Messina, Bergeron Paradis Fitzpatrick
• Hal Miller, First American
• Herb Ogden, Esq.
• Nancy Hunter Rogers, Chamberlin School 
• Jim Runcie, Ouimette & Runcie
• Kristen Shamis, Monaghan, Safar, Ducham
• Jonathan Teller-Elsberg, Vermont Law School, JD Candidate

Answers

Question 1

A lawyer has a duty to reasonably consult with the client about the means by which the client’s objectives are to be accomplished.

• A.   False.  The lawyer controls the means.
• B.   False.   The lawyer shall abide by a client’s decisions with respect to the means by which the client’s objectives are pursued.
• C.   True.  V.R.Pr.C. 1.4(a).

A and B are not correct.  Per Rule 1.2(a), the client controls the objectives and the lawyer “as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued.”  This does not give the lawyer control over the means.  For instance, a client might not want to pay for something the lawyer suggests be done.  Nor does it give the client the absolute right to direct the lawyer to do certain things . . .  for instance, violate the rules.

Question 2

In representing a client, a lawyer _______ not use means that have no substantial purpose other than to embarrass, delay, or burden a third person.

Which is most accurate?

• A.   This is a rule.  And the blank is “shall.”   V.R.Pr.C. 4.4(a).
• B.   This is not a rule. It’s an aspirational comment to one of the rules. And the blank is “should.”

Question 3

A lawyer is holding funds to which both a client and third person claim interests. Their interests are in dispute.  By rule, the lawyer must:

• A.  disburse the funds as directed by the client
• B.   hold the funds until the dispute is resolved.  V.R.Pr.C. 1.15(e)
• C.   withdraw from representing the client
• D.   A or C

Question 4

If an attorney calls me with an inquiry and my response includes use of the word “imputed,” what did the attorney most likely call to discuss?

•  A.  Reviewing an adverse party’s social media posts
•  B.  Trust account management
•  C.  A potential conflict of interest.   V.R.Pr.C. 1.10
• D.  Advising a client to change the privacy settings on her social media platforms

Question 5

 Earlier this year, I blogged about Andrew Manitsky.  Not only is Andrew in a band, he’s my go-to guy when I have questions related to intellectual property and trademarks.

The 2019 American Music Awards are scheduled for November 24.  The artist who will be honored as the AMA Performer of the Decade planned to perform the songs that helped the artist earn the honor.  Songs that the artist wrote, sang, and made famous.

However, this week, the artist took to social media to allege that the label that owns the rights to the artist’s catalogue is refusing to let the artist perform the artists own songs during the ceremony and, further, has also banned the artist from using the music in an upcoming Netflix documentary about the artist’s career.  The label responded by accusing the artist of disseminating “false information.”

Regular readers will certainly know whose side I’m on!

Name the artist.

Taylor Swift in her on-going battle with Scooter Braun.  The New York Times has the latest.

Five for Friday #182

Welcome to #182!

It’s rare that the blog comes live from the scene of the week’s number.  Of course, it’s appropriate for today to be marked by a rare occasion.  After all, “rare occasion” seems to be a theme in the legal ethics news this week: (1) two lawyers were reprimanded for almost fighting in court; and, (2) three judges were suspended as a result of a late-night fight that led to one of them being shot.

Let’s hope “rare occasion” remains the most accurate descriptor for such conduct.

Anyhow, this morning, I’m live and local from the kitchen table in my dad’s house in Flat Rock, North Carolina.  I’m here for two reasons.

• Tomorrow I’m running the Tryon Half Marathon.
• 82 years ago today, my dad burst onto the scene live & local at Colchester’s Fanny Allen Hospital.

Happy Birthday Dad!

(For you naysayers, 82 is close enough to 182.)

Earlier this morning, I drafted this blog.  Before I hit “post,” I went for a run. I had a nagging thought that I shouldn’t post the draft.  As I ran, I realized I was right.  It was a bit too preachy and self-indulgent. Thankfully, I took time to reflect before posting.  Here’s what I wanted to say.

In 2014, my dad and I ran a 5K in Asheville on Thanksgiving.  My dad won his age group.

Just over two months ago, my dad had open heart surgery.  He’s doing great and rehab is going well.  But, as well as it’s going, it frustrates him a bit.  So far, he’s been limited to walking.  Some of the walks are on the treadmill under the supervision of his rehab providers, others are around his neighborhood.  Yesterday, he told me that, next week, he’s going to ask his doctor if he can start to incorporate jogging into the rehab routine.  This morning, I asked him what his goal is:

• 200 yards.

It might not sound like much, and certainly isn’t a 5K, but my dad’s goal is an important lesson.

Lots of us set goals that we never meet.  If you’re anything like me, the failure to meet a goal often results less from an inability or unwillingness than from a failure to break the goal into manageable steps.  If my dad tried to run a 5K next week, he’d end up on the operating table.  Or worse.  But, by starting with a few hundred yards at a time, he might someday again run the Turkey Trot.

When I speak on attorney wellness, the goals I most often hear lawyers profess are (1) catch up on my work; and (2) improve my work-life balance.  Each is a fantastic goal.  Remember, though, you likely aren’t going to accomplish either by the end of the weekend.  But you can take the first steps.

Somewhere in that pile on your desk, there’s a letter to write or call return.  Write it, make the call.

Saturday morning will be here before you know it . When you wake up, don’t check your work email while you’re having coffee.

The letter, phone call, and 3 minutes away from your email might not sound like much.  But each is a manageable step.  In other words, each is your 200 yards.  Repeated consistently, you’ll reach your goals.  And when you do, thank my dad.

Onto the quiz!

Rules

• None.  Open book, open search engine, text-a-friend.
• Exception:  Question 5.  We try to play that one honest.
• 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
• Share on social media.  Hashtag it – #fiveforfriday

Question 1

A lawyer has a duty to reasonably consult with the client about the means by which the client’s objectives are to be accomplished.

• A.   False.  The lawyer controls the means.
• B.   False.   The lawyer shall abide by a client’s decisions with respect to the means by which the client’s objectives are pursued.
• C.   True.

Question 2

In representing a client, a lawyer _______ not use means that have no substantial purpose other than to embarrass, delay, or burden a third person.

Which is most accurate?

• A.   This is a rule.  And the blank is “shall.”
• B.   This is not a rule. It’s an aspirational comment to one of the rules. And the blank is “should.”

Question 3

A lawyer is holding funds to which both a client and third person claim interests. Their interests are in dispute.  By rule, the lawyer must:

• A.  disburse the funds as directed by the client
• B.   hold the funds until the dispute is resolved
• C.   withdraw from representing the client
• D.   A or C

Question 4

If an attorney calls me with an inquiry and my response includes use of the word “imputed,” what did the attorney most likely call to discuss?

•  A.  Reviewing an adverse party’s social media posts
•  B.  Trust account management
•  C.  A potential conflict of interest
• D.  Advising a client to change the privacy settings on her social media platforms

Question 5

 Earlier this year, I blogged about Andrew Manitsky.  Not only is Andrew in a band, he’s my go-to guy when I have questions related to intellectual property and trademarks.

The 2019 American Music Awards are scheduled for November 24.  The artist who will be honored as the AMA Performer of the Decade planned to perform the songs that helped the artist earn the honor.  Songs that the artist wrote, sang, and made famous.

However, this week, the artist took to social media to allege that the label that owns the rights to the artist’s catalogue is refusing to let the artist perform the artists own songs during the ceremony and, further, has also banned the artist from using the music in an upcoming Netflix documentary about the artist’s career.  The label responded by accusing the artist of disseminating “false information.”

Regular readers will certainly know whose side I’m on!

Name the artist.

 

 

 

Incivility Results in Public Sanctions

I’ve blogged often on civility.

In Don’t Be a Jerk, I argued that effective advocacy and civility aren’t mutually exclusive.

Later, in Advoacy, Decorum, and Grover, I noted (for the first of what would be many times) my opinion that there’s a correlation between civility and wellness.

Most recently, in So Your Client Thinks She’s Funny, I wrote about the opinion in which the Delaware Supreme Court took the opportunity “to remind counsel that they have a responsibility to intercede and not sit idly by as their client engages in abusive deposition misconduct.”

Which brings me to today’s lesson.

Two days ago, Mike Frisch of the Legal Profession Blog posted No Alibis. It’s the story of a disciplinary opinion that the Louisiana Attorney Discipline Board issued on November 4.

The LADB’s opinion is here.  The money paragraph:

• “Common sense dictates that an attorney must know that his actions will disrupt the court if he, during the course of a hearing or trial, threatens to ‘punch the shit’ out of opposing counsel, even if arguably he was provoked by opposing counsel. To hold otherwise would provide an excuse to any attorney engaging in such behavior by simply saying, in effect, ‘I did it, I know it was wrong, but I didn’t intend to do it'”.

The lawyer received a public reprimand.  Earlier this year, the other lawyer involved did as well.  Per the LADB’s most recent opinion:

“With one exception, discussed below, the facts are not in dispute. On August 20, 2018 Respondent appeared in Orleans Parish Criminal District Court, Section “F”, Judge Robin Pittman, representing a Mr. Ron Edwards on the State’s motion for a bail increase. Mr. Iain Dover, Assistant District Attorney, appeared for the State.

During argument on the State’s motion, Respondent stated to the Judge that the victim, Mr. Edwards’ girlfriend, had on a prior occasion brought false charges against Mr. Edwards and ultimately pled guilty to filing a false police report.

In response to Respondent’s statement about the victim, Mr. Dover stated:

Excuse me, sir. You’re a liar.

Mr. Spears responded: And I will punch the shit out of you if you call me a liar, again.

Mr. Dover doubled down, after being challenged by Respondent to call me a liar again,
stating: Liar.

At this point in the transcript of the August 20, 2018 hearing, the court reporter wrote:

Mr. Spears: (Raises fist up to Mr. Dover)
Mr. Dover: (Raises arm up in a blocking motion)

Finally, Respondent stated: …but perhaps we can settle this outside the courtroom.”

One might argue that, with each lawyer receiving a public reprimand, this one ended in a draw.  I’d disagree.  To me, when incivility is met with incivility, nobody wins.  Not the lawyers, their clients, or the profession.

Wellness Wednesday: Unplug

I confess: today’s topic isn’t much more than a regurgitation of a blog I posted this summer.  However:

1. It’s important.
2. I’m pressed for time and out of ideas.
3. And it gives me an excuse to ask readers to share their favorite episodes of MTV Unplugged.  More on that later.

In July – a time & place that seems so far away this morning – I posted Vacations, Devices and Vacations from Devices.  The post highlighted excerpts of this report issued by the Massachusetts Supreme Judicial Court’s Steering Committee on Lawyer Well-Being.

I focused on the fact that the report identified “the pace of work” as one of 8 major issues affecting lawyer well-being.  In particular, that so many of the Steering Committee’s sub-committees urged legal employers to encourage lawyers to take vacations that include vacations from their devices.  For instance, the Massachusetts Bar Association Sub-Committee on Attorney Well-Being wrote:

• “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.”

In the end, the Steering Committee urged legal employers to “encourage vacations, set limits on client access, and allow attorneys to establish boundaries to them to devote time to self-care and family life, without fear of retribution.”

I’ve often mentioned Jeena Cho.  Jeena is a lawyer, author, and mindfulness instructor.  In my opinion, Jeena is one of the most important voices in the attorney wellness discussion.

Earlier this month, the ABA Journal’s On Well-Being column featured Jeena’s post Adults need screen time limits too.  It’s a great reminder that it’s perfectly okay to go more than a minute without checking your cell phone or work email.

I’m guilty of all the bad habits Jeena lists in her column.  Just last night I woke up around 1:00AM.  I was thirsty.  Inexplicably, before I walked to get a glass of water, I checked my cell phone – which was in my bed – to see how my NBA fantasy team did in last night’s games.  That is a problem!

Anyhow, this morning, I was struck by the “Intentionally Unplug” section of Jeena’s post:

“When is the last time you intentionally ‘unplugged’ from your digital device? I’ve found that carving out regularly scheduled time where I give myself an opportunity to unplug is helpful in allowing me to better connect with my family as well as myself.

There are many pockets of time where you can institute ‘unplugged’ time. Some people observe the “digital sabbath” turning off the phone and laptop on Saturday evening and not turning them on again until Sunday evening, while others practice no screen time during meals.

If you’re like most lawyers and always eat lunch at your desk, looking at a screen, take yourself out to lunch once a week where you don’t look at your smartphone.”

Excellent advice!

It’s time for Wellness Wednesday to morph from a hashtag to action.  I’ll start.  Here’s how.

As many of you know, I love to run.  Among other things, whether I run 3 miles or 18, I love the time that goes by without checking my phone. I never bring it with me  . . .

. . .except on the rare occasions I run on a treadmill.  Then, I use my phone to listen to music or podcasts. Of course, at the same time, I find myself glancing at it to see if a text or email has popped in.  The intervals between glances grow shorter with every step.

That defeats the purpose of going for a run!

It’s so damn cold that today’s run will be on a treadmill at the gym.  I vow to leave my phone in my car.

Unplug. It’ll help you recharge.

Oh yeah, MTV Unplugged.  The interwebs are chock full o’ lists of the top performances ever.  My favorite? The Mariah Carey & Trey Lorenz cover of the Jackson 5’s I’ll Be There.

. 

 

 

Mobile Payment & Legal Fees

I’m not what anyone would call “young.”  But you know what I don’t use anymore?

Checks.

I write one per month: to my homeowner’s association.  I pay my other bills via online payments options tied to my bank account or credit card.  If I owe anyone money, I either (a) buy them a beer and say, “let’s call it even;” or (b) send it via Venmo or PayPal after they question my definition of “even.”

I expect that this will be controversial:  I hope that the conduct rules are never interpreted or applied to prohibit lawyers and law firms from accepting payment – including retainers – via services like Venmo and PayPal.

As alluded to in the opening paragraph, it’s a question we need to resolve.  An ever-growing number of consumers of legal services do not use cash or checks. I think lawyers need to consider whether not having, say, a firm Venmo account will cost the firm a potential client who asks “to Venmo” the retainer.

I’m aware of only one advisory opinion directly on point.  It’s the South Carolina Bar’s Ethics Advisory Opinion 18-05.   (Note: this post is NOT about credit card payments or the numerous advisory opinions on credit card payments.)

Cutting to the chase, here’s the conclusion reached by the SC Bar:

• “Accordingly, Lawyer may elect to establish a dedicated trust account via an online payment service provider, but funds received into that account are likely to be nominal or short-term, thus requiring in turn a transfer of those funds to an IOLTA account. Lawyer should be aware of an elevated risk of non-collection under these circumstances in making the individual determination as to whether he is willing to receive funds belonging to third parties via an online payment service
  provider, PayPal or otherwise.”

Makes sense to me.

Remember: “trust account” is a term that gets thrown loosely.  There’s a difference between a “trust account” and a “pooled interest-bearing trust account.”

If a lawyer represents me and is holding money in connection with the representation, there’s no question that the money must be held in trust.  The only question is this: are the funds reasonably expected to earn net dividends or interest?

If the answer is “yes,” the money must be held in a trust account.

If the answer is “no,” which it most often is, then the funds must be held in a “pooled interest-bearing trust account in a financial institution in Vermont that has been approved by the Professional Responsibility Board.”   This latter scenario involves what all of us refer to as “IOLTA accounts.” The interest generated by the “pooling” of my funds with funds that belong to my lawyer’s other clients is paid to the Vermont Bar Foundation.

With both this and the South Carolina opinion in my mind, I see no reason why a lawyer or firm can’t create a Venmo account to accept fees that are paid in advance.  Of course, all the other rules apply.  For instance,

• the account must include a record-keeping system that complies with Rule 1.15A(a);
• records of funds held in the account must be maintained for 6 years following the termination of a representation;
• the account is subject to the compliance reviews and audits authorized by Rules 1.15A(b) and 1.15A(c) or audit; and,
• the lawyer or firm cannot deposit its own fees into the account, except in an amount necessary to pay service charges or fees on the account.

Then, on a regular basis, the lawyer or firm must (1) transfer earned fees to the operating account; and (2) transfer to a pooled-interest bearing trust account (“IOLTA”) at an approved institution funds that otherwise would be deposited into the IOLTA if received by check, cash, or credit card.

In short, I’m on board with the SC opinion and think that the existing rules allow lawyers to accept advance payments via methods like PayPal and Venmo.  Of course, others might disagree with me. That’s fine.  If I’m wrong, we should change the rules and expressly allow lawyers and their clients to transact business in a way that society has deemed commercially reasonable.

One final note: if you or your firm has a Venmo account, you might want to suggest to clients who use it that they change their privacy settings.  I can imagine a few friends of mine reacting uncomfortably when confronted by spouses who saw a payment to a law firm on their Venmo feeds.

For more, here’s an Above The Law post that’s a primer of sorts on different methods of digital payments.  Finally, a related post: Bitcoin as Payment for Legal Fees.