Five For Friday #189

Welcome to Friday!

It’s Super Bowl weekend.  One of my favorite aspects of the Super Bowl? The long odds that you can get on crazy (and entertaining) prop bets. For instance, you can bet on who will tackle a fan who runs onto the field.  The longest odds are on “another fan.”  A $100 bet pays $750.

Ok, so, regular readers know a few things about me.

  • I try to tie the Friday column to the quiz number, the date, or an upcoming event.
  • I like to include references to pop culture & sports.
  • I’m a Taylor Swift fan.
  • I’m superstitious.

Today is Justin Timberlake’s birthday.  He’s been part of two memorable half-time performances at the Super Bowl.  Sunday is the Super Bowl and, this quiz number – 189 –  is (sort of) associated with Taylor Swift.

Image result for taylor swift 1989

When I started this blog, the odds were astronimical that quiz 189 would fall on Justin Timberlake’s birthday two days before the Super Bowl. A $100 bet probably would’ve paid $75,000.  I cannot believe my luck!

Here’s where my superstitious side kicks in.

Been there, done that.

Five For Friday #92 posted on October 27, 2017.  Central characters?

  • Justin Timberlake;
  • Taylor Swift; and,
  • the Super Bowl.

What are the odds?

Alas, I will you leave this.  Regular readers also know that I like stories that involve clever filings by lawyers.

Denise Kirby is a lawyer in Kansas City.  She’s a Chiefs fan and is in Miami for the Super Bowl, but only after receiving a continuance for a trial that had been scheduled for Monday.  As it did me, I hope that Attorney Kirby’s Request For Continuance makes you smile.  Above The Law has the story & filing here.

Onto the quiz!

Image result for taylor swift 1989

  • 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

There’s a rule that prohibits a lawyer from communicating about the subject of the representation with a person that the lawyer knows is represented by another lawyer.

Which is NOT an exception to the prohibition?

  • A.    The other lawyer consents to the communication.
  • B.    The communication is authorized by law.
  • C.    The represented person initiates the communication.
  • D.    Trick question.  A, B and C are exceptions to the rule.

Question 2

Here are 2 things I mentioned at CLE:

  1. last minute changes to wire instructions; and,
  2. a prospective out-of-state client who claims to be owed money by a person or business that is in Vermont, and who only communicates with you by e-mail.

I was warning lawyers about  ________.

  • A.   accidentally communicating with a represented person.
  • B.   the risks of not understanding how to conduct e-discovery competently.
  • C.   the Unauthorized Practice of Law.
  • D.   common trust account scams.

Question 3

Consider the following:

  • must be in a writing that is signed by the client.
  • cannot be used for representing a defendant in a criminal case.
  • cannot be based on securing a divorce.

Here, we’re talking about:

  • A.   Contingent Fees
  • B.   Flat Fees
  • C.   An agreement to limit the scope of a representation
  • D.   All the Above

Question 4

Attorney called me with an inquiry.  She said “Mike, I represented Client.  The case is over.  She’s coming to my office later this week.  I have some questions about mental impressions, as well as internal notes and memoranda.”

Most likely, what did Attorney call to discuss?

  • A.  The duty to report a client’s fraud.
  • B.  The duty to act competently to safeguard client data stored in the cloud.
  • C.  The duties to a client who suffers from a diminished capacity.
  • D   The duty to deliver the file.

Question 5

Background: after consecutive quizzes that included questions related to the British royal family, the ghost of Aunt Kate admonished me through a local lawyer who spent many an election night at Aunt Kate’s house.   As such . . .

. . . in 1966, Alan Page led the Notre Dame Fighting Irish to the college football national championship.  He went on to star in the NFL, and played in 4 Super Bowls for the Minnesota Vikings.  On the Vikings, he was part of a defensive unit that had a colorful nickname.  After retiring from football, Page embarked on a legal career that included serving for 30 years on the Minnesota Supreme Court.

That’s right: he played & served in Prince’s home state.

Back to Super Bowl bets & long odds: another available bet is “what color Gatorade will the winning team pour over its coach?”

When betting opened, a particular color was the longest shot, with a $100 bet paying $1,800.  As of this morning, that color is now the odds-on-favorite, with winners only getting even money.

If you know anything about Prince, the Vikings, and the nickname of Page’s defensive unit, you’ll know the color.

What color?

Competence & E-Discovery

A lawyer’s professional responsibilties include:

  • providing clients with competent representation;
  • abiding by the rules of a tribunal;
  • acting competently to prevent the inadvertent disclosure of a client’s otherwise confidential or privileged information;
  • not assisting a client or another person unlawfully to obstruct access to evidence; and,
  • not assisting a client or another person unlawfully to alter, conceal, or destroy documents and material that have potential evidentiary value.

tech-ethics

At the YLD Thaw in Montreal, I sat on a panel that presented E-Discovery & Me: Facebook, Metadata & Beyond.  Kevin Lumpkin moderated, and I was joined by Jennifer McDonald, Daniel Martin, and Matthew Preedom.

The seminar left me with a new appreciation for the “tech” issues that lawyers confront daily.  It also left me incredibly impressed with the tech competence of my fellow panelists.  To say I was the weak link would be an understatement.

Thus, I hesitate to write this blog. Mostly from a competence perspective, but also because the topic is so vast that I could easily go too long & too far astray.  I’ll do my best to stay focused.  Today’s points:

  1. The duty of competence applies in discovery.
  2. The duty of competence includes providing clients with competent advice related to preserving & producing ESI.

Note, I intentionally used “discovery” instead of “e-discovery.” I’ve heard lawyers suggest that their duties are different, perhaps less stringent, with e-discovery.

Wrong.

Never have we presented, and never will we present, an ethics CLE in which we stress that the duty of competence includes providing clients with competent advice on the preservation & production of paper documents.  It’s a given.

It’s also a given with ESI.

In 2009, Vermont amended Rule 34(a) of the Rules of Civil Procedure. The amendment tracks the 2006 amendment to the Federal Rules of Civil Procedure.  The Reporter’s Note is not confusing.  The amendment:

  • “is intended ‘to confirm that discovery of electronically stored information stands on equal footing with paper documents’ and to make clear that a request for ‘documents’ that does not differentiate paper documents and electronically stored information should be understood as including the latter.”

No reasonable lawyer would conclude “I don’t really need to know how to advise my client on the preservation & production of paper documents.”  And, for more than a decade now, the discovery rule has been that ESI “stands on equal footing with paper documents.”

In short, ESI is discoverable, subject to the same discovery rules as information that is on paper. To produce ESI, your client must have preserved ESI.

For example: do you know whether:

  • your client has ESI that might be relevant to the representation;
  • the custodian(s) of that data;
  • the client’s policies on data storage/destruction.

In 2015, the State Bar of California issued Formal Opinion 2015-193.  The question presented: “what are an attorney’s duties in the handling of discovery of electronically stored information?”

I urge you to read the entire opinion.  In my view, the most important paragraph is this one:

  • “We start with the premise that ‘competent’ handling of e-discovery has many dimensions, depending upon the complexity of e-discovery in a particular case. The ethical duty of competence requires an attorney to assess at the outset of each case what electronic discovery issues might arise during the litigation, including the likelihood that e-discovery will or should be sought by either side. If e-discovery will probably be sought, the duty of competence requires an attorney to assess his or her own e-discovery skills and resources as part of the attorney’s duty to provide
    the client with competent representation. If an attorney lacks such skills and/or resources, the attorney must try to acquire sufficient learning and skill, or associate or consult with someone with expertise to assist.”

I appreciate the paragraph’s emphasis that lawyers need to know what they don’t know. I appreciate two other points.

First, the paragraph tells lawyers what they need to know:

“Attorneys handling e-discovery should be able to perform (either by themselves or in association with competent cocounsel or expert consultants) the following:

  • initially assess e-discovery needs and issues, if any;
  •  implement/cause to implement appropriate ESI preservation procedures;
  • analyze and understand a client’s ESI systems and storage;
  • advise the client on available options for collection and preservation of ESI;
  • identify custodians of potentially relevant ESI;
  • engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan;
  • perform data searches;
  • collect responsive ESI in a manner that preserves the integrity of that ESI; and,
  • produce responsive non-privileged ESI in a recognized and appropriate manner.”

(Aside: I’d add this: in between preservation and production, lawyers often take possession of a client’s information, whether in paper or electronic form.  The duties to clients include acting competently to safeguard the information while it’s in the lawyer’s possession.  With ESI, that includes competently assessing whether to store the ESI in-house or to retain a e-discovery vendor to host the ESI.)

Second, the paragraph makes it clear that it’s okay not to know how to do those things.  Of course, a lawyer who doesn’t must (1) associate with someone who can competently handle those tasks, whether a lawyer or nonlawyer; or (2) withdraw from or decline the representation.

In closing, I’ve never received a disciplinary complaint alleging that a lawyer failed to provide competent representation on issues related to the preservation and production of ESI.  Someday I will.

For now, keep in mind that the risk is greater than a disciplinary investigation. There’s risk to the client.

Here’s Rule 37(f) of the Vermont Rules of Civil Procedure:

  • Failure to Preserve Electronically Stored or Other Evidence.  If electronically stored or other evidence that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court, upon finding prejudice to another party from the loss of the evidence, may order measures no greater than necessary to cure the prejudice.” (emphasis added).

I’ve often blogged that setting reasonable expectations early in the representation is a good way to avoid disciplinary complaints.

Another is to avoid “measures” ordered by a court against a client.

 

 

Wellness Wednesday: Meet Parker Riehle

Happy Wellness Wednesday!

I’ve often used Wellness Wednesday posts to introduce you to legal professionals who make time for interests outside the law and who are willing to share their thoughts on how those interests relate to lawyer well-being.  I’m thankful for each and every legal professional who has given of their time and humbly humored me throughout these e-terviews.

Today, I’m proud to introduce you to Parker Riehle.

Ski Vermont Head Shot.jpg

Parker is a Vermonter, a lawyer, and an avid skier.  His latest passion is Get On Snow, a project whose motto captures the essence of Wellness Wednesday:

GetonSnow-Blue_edited.png

Get inspired. Be empowered.

Parker was kind enough to spend a day responding to my inanity.  All mistakes are mine.

MK:  Parker, thank you! Tell us about Get On Snow!  What is it? Where’d it come from?

Parker:  I came up with Get On Snow as a call-to-action public awareness campaign and website platform to promote and support the ski industry’s efforts at getting new people on skis and snowboards.  Only 3% of the US population skis or rides, but rather than pounding the “take a lesson and learn to ski” message that’s so often the focal point of the industry’s efforts, the premise for Get On Snow is to promote the lifestyle and health benefits of outdoor winter recreation – the adrenalin, romance, camaraderie, fun, family, friends and freedom of being on the slopes or on a soulful journey through the woods on snowshoes, and of course the après-snow day reward of a glass of wine by the fire or an IPA in the hot tub.

MK:  Great concept!  I like adrenalin, romance, camaraderie, fun, family, friends, IPAs and hot tubs!  Winter, I’m not so sold.  We’ll see how this goes.  Ok, where to start?  In law, it seems that the “general practitioner” has gone the way of the rope tow.  So many lawyers focus on a specific area of practice. What about Get On Snow?  Downhill, cross-country, or both?

Parker:  Getting more folks on downhill skis is the over-arching goal, but it’s important to give equal footing (pun intended) to snowshoeing and cross-country skiing as those are vastly more affordable, accessible and easier to learn for the never-evers so they can gain confidence on snow before getting them up to the slopes.

MK:  Never-evers! I’m one!  So, how do you get people like me out there?

Parker:  One approach I employ is to leverage pop culture to reach a broader audience where they already have affinity. For example, on the Get On Snow blog, my post 007 On Snow: Shredding, Not Stirred has a little fun with the best (and worst) James Bond movie moments on snow since we know there are hundreds of millions of James Bond fans out there, but only a very small percentage of them ski or ride. With those movies we know they must like action, romance and adventure, so they are perfect candidates to get on snow, and when it comes to après-ski and hot tubs, I think we can agree that, as Carly Simon sang in The Spy Who Loved Me, “nobody does it better” than James Bond!

MK:  Indeed! By the way, I know the advertising rules frown lawyers making qualitative comparisons, but I assume that “Shredding, Not Stirred” won best blog headline of 2019!  Ok . . . so many questions, but I think we were just summoned to the bench for a sidebar.

In legal ethics, conflicts of interest are a thing.  Lest anyone accuse us of not providing enough information to make an informed decision about continuing to read this interview, and to avoid even an appearance of impropriety, let’s disclose a potential conflict: we went to high school together.  It does not violate the lawyer advertising rules for us to say that we are two of South Burlington High School’s . . . . graduates.  Like 007, our adventures included action and failed romances.  Is there an adventure you can recall that’s fit to post?

Parker:  Though the statute of limitations has likely safely run on most of the shenanigans we might admit to, including a highly questionable Key Club junket to Hyannis, Massachusetts and summertime misadventures on Lake Champlain, the most notable actually involve blind-side collisions with different impacts; there was the new-driver, rookie-move lane change I made on our way to a party at Cliffside Park that crumpled the side of my Mom’s car – though we survived without a scratch I was sure she would kill me, but she was incredibly cool about it. The other event was the perfect crack block you laid on me that I never saw coming during football practice one day – I might have had 80 pounds on you but you knocked me right on my ass along with a significant blow to my ego!

MK:  I’d vote for our misadventure involving an evacuation by boat, but my mom reads this blog and her statute of limitations never runs.  So, I’ll go with that block at practice.  Now, back to Get On Snow.

In professional responsibility, the very first rule requires competence. Last year, the Court made it clear that well-being is an aspect of competence. As I mentioned, winter isn’t my jam.  One reason might be that I’m utterly incompetent at skiing.  It seems like Get On Snow is sort of the opposite of an attorney’s duty of competence.  That is, your message is that bumblers like me need to get out there and try, if only to improve our mindset and well-being.   Fair statement?

Parker: Absolutely – although “competence” isn’t typically used in conversation with me, the well-being benefits to the mind and body from getting outside in winter are endless. And just like easy walking and occasional jogging can be someone’s introduction to your world of marathon races, snow sports are also all about progression and aspiration. Anybody can try snowshoeing in a park or nearby golf course to get their footing on snow, followed by an introduction to cross-country skiing to get the feeling of something more slippery underfoot. Think of it as a closely supervised title search before moving on to a closely supervised jury selection. Before you know it, you’ll be ready to try the slopes, which is like moving up to the full-on nirvana experience of living an entire episode of Matlock or Bull.

MK:  What’s the reception been so far?

Parker:  Get On Snow is relatively new after launching publicly at the Boston Ski Show last November, but the reception and feedback from the industry and the public alike have been overwhelming because it’s all about pushing the lifestyle and bringing sexy back. Now, we certainly want newbies to take a lesson or, as in that epic South Park episode, “you’re gonna have a bad time,” but leading with that message isn’t exactly going to get folks excited – it sounds boring and intimidating and the human condition isn’t readily receptive to going back to school for anything.

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MK:  South Park & Bringing Sexy Back . . you weren’t kidding about pop culture.  I love it! By the way, I can totally relate to boring, intimidating, and the South Park instructor.  All three come to mind whenever I give a seminar on trust accounting: “Didn’t reconcile?  You’re gonna have a bad time!”  

You’ve had much success outside the traditional “lawyer track.”  What are some of the things you learned as a lawyer that have helped you in other jobs?

Parker: Because law school really forces you to ask the “why” and not just the “what” behind statutes and jurisprudence, it’s an incredibly invaluable education for public policy which has been the basis for most of my career since switching from insurance defense litigation to lobbying in 1998 when I was first hired by the Vermont Ski Areas Association as Governmental Affairs Director. Although you don’t need to be a lawyer to be a lobbyist, there’s no question that being a lawyer is a formidable advantage for working with legislative and regulatory issues, and I’ve always found it to be incredibly more enjoyable and rewarding to shape statutory law at the State House rather than case law at the courthouse. In addition, being a lawyer was invaluable for dealing with in-house legal issues at Ski Vermont like association bylaws and copyright & trademark issues and enabled me to have an expansive role with Governor Jim Douglas in his first term as policy advisor, legislative liaison and legal counsel.  It’s also been an advantage as a Commissioner on the Act 250 – District 4 Commission where I’ve proudly served since 2009.

MK:  Good stuff.  Plus, at the State House, you got to meet Vermonter and Olympic Medalist, Hannah Kearney.

State House Gold

Let me flip the question:  are there any aspects of you that exist only by virtue of having been a lawyer and that make you think “damn! I wish I never knew this! I’d be so much better at what I do if I didn’t!”  (not that I’m saying you need to be better at what you do!)

Parker:  Although I’ve never wished for the Men In Black Neuralyzer flash pen for any of my legal education, I have always noticed that non-lawyers seem to assume that being a lawyer means you can’t possibly be creative since apparently all lawyers are passionless robots. So, when it came to the myriad creative decisions as President of Ski Vermont, I often downplayed the lawyer bit and put myself more in the mode of my creative writing major at Hamilton College.

Image result for men in black flash pen

MK:  I’ve done the same! I downplay the “I’m a lawyer” angle and focus on letting non-lawyers know that I was a high school basketball coach. It’s sad that we do that. One of my goals in interviewing people like you is to show non-lawyers that “we are fun people too!”  Another is to convince lawyers that it’s ok to have fun doing non-lawyerly things, even if those things disabuse others of the notion that we’re passionless robots.

As for Men In Black, we won’t wipe your memory of your legal education.  But, if not the Neuralyzer, what’s the one fictional/pop culture prop that you wish you could use for yourself – whether now, or at any point since your first day of law school?

Parker:  Definitely the Star Trek transporter so I can beam myself wherever I want to go. Whether a cross-country flight, a four-hour drive or back to the top of the mountain, I’m an impatient traveler so that would be a nice way to go.

MK:  I like it! I once had a Supreme Court argument in which I argued that “unless we disbar this lawyer, we are no different than The Emperor With No Clothes.”  A justice asked “Mr. Kennedy, are you picturing us naked?”   Ummm, talk about trouble with tribbles and needing a transporter!  Was there ever a moment in your legal career that you desperately wanted to radio Scotty to beam you up?

Parker:  That question from the Supremes might give you grounds for an emotional distress claim!  Probably the most beam-me-up moments I’ve had were during my very first years in private practice in Los Angeles since I had absolutely no idea what I was doing and the legal scene there is incredibly intense – I mean judges who were spitting fire in anger over pretty mundane procedural matters and opposing counsel who were nothing like Jimmy Smits in L.A. Law. One day I had a court appearance in San Diego so I thought I’d be metro-hip and take the train, which of course broke down along the way. No cell phones yet but I was able to at least notify the Court with an onboard pay phone and spent the rest of the ordeal bracing for what would surely be instant disbarment or dismemberment at the hands of the waiting judge.

Well it turns out San Diego lawyers and judges are much less intense than the L.A. kind and the reception I got as I hurried into the courtroom couldn’t have been more welcoming and understanding – of course opposing counsel was getting paid by the hour so he was doubly cool with it, but the judge couldn’t have been nicer about it.

MK: Kudos to the San Diego County Bar Association! I blog & speak often on civility.  Like sexy, we need to bring civility back!

Your blog post First Chair (or T-bar) ’73 includes a fantastic picture of you skiing with your brother when you were very young.  So, you’ve always been a skier. When did you realize you wanted to go to law school?

Parker: I vividly recall making a very quick decision about it my senior spring at Hamilton College when one of my roommates got into Cornell Law School and I didn’t have any meaningful employment lined up at that point in the semester. I knew there was no way I’d get into business school with my very low mathematical acumen and I viewed law school as more of a business degree for creative writing majors who didn’t want to starve for a living and which would provide lots of employment options outside the traditional practice of law, as my career would later play out. I was very fortunate to get accepted to Vermont Law School where I had a great experience after working on the campaign trail and in Washington, D.C. for Vermont Congressman Peter Smith.

MK:  Sounds familiarMy dad, who you know, convinced me that employers would value a liberal arts degree more than a business degree.  So, like you, I ended up in law school.  Ok, I’ll start to wrap things up.  Not to put you on the spot, and knowing that you used to work at Ski Vermont, your 3 favorite places to ski are?

Parker: It’s virtually impossible to pick just three but I’ll go with Stowe, Sugarbush and Magic Mountain in Vermont; outside Vermont: Steamboat, Alta and Squaw Valley – but I love them all!

MK:  The paparazzi caught you in action on Perry Merrill at Stowe:

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MK:   I know you love to ski with your wife & kids.  However, not counting your family, if you could ski with any 3 skiers from history, who would you choose? (I’m not sure why I chose 3. I confess, I don’t know how many skiers can fit on a lift or in a gondola.)

Steamboat Fam Shot

Parker:  Great question! I’d rather go with the Jay Peak Tram to fit all my heroes, but joining me on the quad chair I’ll go with Billy Kidd, Stein Eriksen and Donna Weinbrecht, though there’s no way I’d keep up with Donna in the moguls!

 MK: Parker, thank you so much for doing this. You’re a shining example of an attorney who not only understands well-being, but who is working to improve the well-being of others.  The Get On Snow mission to inspire others to inspire and empower themselves is inspiring.  It might even get me out there!

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Get inspired. Be empowered.

 

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Related Wellness Wednesday “Meet ______” Posts:

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

 

 

 

The No-Contact Rule

When I was a kid, Rick Springfield was all the rage. Singing Jessie’s Girl and playing Dr. Noah Drake on General Hospital will do that.

Image result for dr noah drake

Today, however,  I’m reminded of a Springfield song that I associate with the “couples skate only!” announcement at Skateland.  When it comes to professional responsibility, lawyers would be wise to treat “represented persons” as Springfield did “strangers.”

Don’t talk to them.

 

Rule 4.2 of the Vermont Rules of Professional Conduct is the “no-contact” rule.  When a lawyer is representing a client, the rule prohibits the lawyer from communicating “about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter.” There are two exceptions:

  1. the other lawyer consents to the communication; or
  2. the communication is authorized by law.

The rule’s purpose is made clear by Comment [1]:

  • “This rule contributes to the proper functioning of the legal system by protecting a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship, and the uncounseled disclosure of information relating to the representation.”

Earlier this month, the Virginia Supreme Court approved Legal Ethics Opinion 1890.  The opinion addresses more than a dozen scenarios that implicate the no-contact rule.

I’ve not blogged often on Rule 4.2.  Nevertheless, the Virginia opinion reminded me that it’s not uncommon for lawyers to ask about the rule’s reach.  Drawing on questions I’ve received at CLEs and from attorneys calling with inquiries, here are a few reminders & resources.

First, the rule applies to any person known to be represented in the matter.  That is, the rule is broader than “parties” and “cases.”  Not often, but I’ve had lawyers ask, “as long as I haven’t filed yet, I can talk to her directly, right?”  Wrong.

Next, here’s one that, in my experience, most lawyers know: “the rule applies even though the represented person initiates or consents to the communication.” Comment [3].  So, if most lawyers know it, why do I mention it?

Because e-mail has a remarkable ability to make all of us do things that we know we shouldn’t do.

I’ve little doubt that nearly every single lawyer reading this post would immediately hang-up if a represented party called.  Do the same with email – don’t reply!

Moving on, the question I receive most often on the no-contact rule involves former employees of a represented organization. Comment [7] is clear: “Consent of the organization’s lawyer is not required for communication with a former constituent.”  While issued before Rule 4.2 was adopted, VBA Advisory Opinion 96-7 reached the same conclusion.

Current employees, however, are a different story.  The rule prohibits direct communication with an employee of a represented organization:

  • who supervises, directs or regularly consults with the organization’s lawyer concerning the matter or has the authority to obligate the organization with respect to the matter; or,
  • whose act or omission in connection with the matter may be imputed to the organization for the purposes of civil liability.

For more on current employees, check out the VBA Advisory Opinion 06-05.  It draws heavily from Baisley v. Mississquoi Cemetery Association, an opinion in which the Vermont Supreme Court analyzed the relationship between the no-contact rule and V.R.E. 502, the evidentiary rule that establishes the lawyer-client privilege.

A few last tips:

  1. The “authorized by law” exception can cause confusion.  I don’t recall it ever being raised in the context of a disciplinary complaint.  However, in VBA Advisory Opinion 2000-6, the Professional Responsibility Committee concluded that “an attorney who represents a landlord may directly contact a tenant who is represented by an attorney solely for the purpose of the service of the statutory termination of tenancy notice.”
  2. The Virginia opinion advises that the no-contact rule does not prohibit a plaintiff/claimant’s lawyer from direct communication with an insurance adjuster even after a matter has been assigned to insurance defense counsel.  The Vermont Supreme Court held otherwise here, and reaffirmed its holding here.
  3. The Virginia opinion advises that even though parties can communicate directly with each other, the no-contact rule applies to a lawyer who is self-represented. Similarly, in the first decision it ever issued, the old Professional Conduct Board concluded that the no-contact rule “applies to lawyers representing themselves” to the same extent that it applies to lawyers who are representing clients.  I shared my thoughts on the decision here.

That’s it for now.  At least until I can figure out how to incorporate these two into a post on legal ethics:

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Wellness Wednesday: Mentoring

At last week’s YLD Thaw in Montreal, I had the opportunity to moderate a panel discussion on attorney wellness.  Three lawyers shared personal & moving stories.  One described how substance abuse almost kept him from entering the profession, while two recounted experiences that nearly drove them from the profession.  Experiences inextricably linked to stress, anxiety and depression.

The presentation was well-received.  Several lawyers have contacted me since to express an interest in “the next step.”  That is, it seems we’ve arrived at a point where everyone agrees that wellness is an issue that is impacting the profession.  Now, it’s time to move beyond raising awareness.  It’s time to provide lawyers with tools and techniques to achieve and maintain well-being and wellness.  I received a few great ideas from the lawyers who reached out.  Today I’ll focus on one: mentoring.

This morning, a young lawyer sent me an email in which she thanked me for incorporating wellness into so many of the CLEs that I present.  She wrote that it “is important that we make space within the profession to raise awareness of issues such as those the panel brought up.”

It’s what she wrote next that struck me:

  • “I hope in the future we can have further discussion on how to be the change we wish to see in the profession…managers and mentors, in my opinion, need to lead the charge.”

She’s right.  We who’ve been around must help younger lawyers manage the stress that the profession brings.  And there’s no better time to do so than now.

January is National Mentoring Month.  I’ve previously urged lawyers to consider serving as mentors for new attorneys.  Indeed, it’s a concept that can be traced back to one of the original expressions of our professional duties.

Of course, mentoring need not be formal.  It can be as simple as checking in with the younger lawyer in your firm. The lawyer who, like you once were, is overwhelmed and reluctant to ask for help.

Be the help that we want the profession to provide. There might be no more important form of mentoring.

For more, check out the mentoring resources that the American Inns of Court made available on its site.   And, for more general information on creating a workplace that values well-being & wellness, don’t forget two incredibly helpful resources:

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Monday Morning Answers #188

Happy Monday!

Friday’s questions are here. Today’s answers follow the honor roll.

But first, today we pause to honor Martin Luther King, Jr.

In the introduction to Friday’s quiz, I reiterated an argument I’ve made before: when it comes to addressing the problems that most affect the legal system & profession, I believe that the collective we are too often too quick to eschew small things that will result in incremental improvement. We prefer great solutions that fix everything at once. Our response to the justice gap is an example.  On the other hand, when it comes to wellness, we’re fortunate that some offices & firms realize that small things matter.  Still, in my view, the profession tends to make perfect the enemy of good.

Here’s a quote from Reverend King:

Image result for mlk small things image

The quote inspires me.

In 2020, I know that I won’t be able to create or accomplish great solutions to the profession’s problems.  But, every single day, my job will give me a chance to be great at something small that helps someone through the day.  I accept the challenge. If you join me, the small things will add up.

Honor Roll

  • Karen Allen, Esq.; Karen Allen Law
  • Matthew AndersonPratt Vreeland Kennelly & White
  • Evan BarquistMontroll Backus & Oettinger
  • Penny Benelli, Dakin & Benelli
  • Beth DeBernardi, Administrative Law Judge, VT Dept. of Labor
  • Erin GilmoreRyan Smith & Carbine
  • Robert Grundstein, Esq.
  • Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
  • Aileen Lachs, Office of United States Senator Patrick Leahy
  • John LeddyMcNeil Leddy & Sheahan
  • Kevin LumpkinSheehey Furlong & Behm
  • Jack McCullough, Vermont Legal Aid, Project Director – Mental Health Law Project
  • Hal Miller, First American
  • Herb Ogden, Esq.
  • Nancy Hunter Rogers, Chamberlin School 
  • Jim Runcie, Ouimette & Runcie
  • Ashley TaylorHorsley Lajoie Goldfine
  • Jonathan Teller-Elsberg, Vermont Law School, JD Candidate
  • Allison Bates Wannop, Special Counsel, Vermont Department of Public Service
  • Zachary York, Vermont Superior Court, Chittenden Civil 

 

ANSWERS

Question 1

Lawyer represents Client in Client v. Adversary.   Lawyer knows that Attorney represents Adversary.     Adversary calls Lawyer directly to discuss settlement.   Attorney has not consented to direct communication between Lawyer and Adversary.  Which is most accurate?  The no-contact rule:

  • A.  Does not apply because Adversary initiated the communication.
  • B.   Prohibits Lawyer from communicating with Adversary.  Rule 4.2 applies even if the represented person initiates the communication.  See, Comment [1].
  • C.   Prohibits Lawyer from communicating with Adversary, unless Adversary is also a lawyer.
  • D.   None of the above is even close to accurate.

Question 2

Me: “Do not state or imply that you’re disinterested.  And, if you know that the person misunderstands your role, correct their misunderstanding.”

Given my statement, the “person” must be ______.

  • A.  adverse to lawyer’s client
  • B.  unrepresented.   See, Rule 4.3.  It applies whenever dealing with anyone who is unrepresented, no matter their role or alignment.
  • C.  a witness
  • D.  a juror

Question 3

Lawyer represents Client in Client v. Organization.   Lawyer knows that Attorney represents Organization.  Under the Rules of Professional Conduct, does Lawyer need Attorney’s consent to discuss the case with former employees of Organization?

  • A.   No.  See, Rule 4.2, Comment [7].
  • B.    Yes.
  • C.  Yes, but only if they were part of the “control group.”
  • D.   Yes, unless their departure from Organization was involuntary.

Question 4

Lawyer drafted a will for Client.  Lawyer’s child benefits under the will.   For Lawyer to avoid a disciplinary prosecution:

  • A.   Client must be related to Lawyer’s child. V.R.Pr.C. 1.8(c).
  • B.   Lawyer must be married to Client.
  • C.   Client must be an attorney.
  • D.  None of the above.  This is a violation no matter what.

Question 5

Two weeks in a row!

Yes, I’m on my way to Canada.  But I’ll be back.  Mom – don’t worry. When I finally decide to move, I’ll tell you before I announce it on the blog.

Anyhow, Her Royal Highness the Duchess of Sussex was born in Canada. Later, she played a paralegal-turned-lawyer on a long-running tv show.  As I alluded to last week, she and Prince Harry recently caused a commotion in the Commonwealth by announcing their plans to leave England for Canada (and the U.S.)

Originally coined by a British tabloid, what is the one-word name that encompasses anything & everything related to the uproar over the Prince & Princess’s decision to depart Great Britain?

MEGXIT

 

 

Five for Friday #188

Welcome to Friday!

Those of you familiar with my disdain for winter — put your coffee down before reading further.

Today, I’m heading north.

That’s right, in a few short hours I’ll be on the road to Montreal for the VBA/YLD Thaw.  Later today, before Thaw Bowl VII, I’m moderating a panel on attorney wellness.

One of the points/questions that I intend to make/ask is that, as with many issues facing this profession, there are lots of little things that we can do each day to improve wellness.  Things that would never be the key recommendation of a study group, but things, nonetheless, that would make incremental improvement. And, after all, incremental improvement is improvement. Maybe that’s what study groups should recommend: small things, like making a difference one day and one starfish at a time.

Speaking of which, I think I found a small thing that would improve my own wellness and perhaps the state of mind of those who share my feelings toward winter.  It’s the damn weather app on my phone. Check this out:

View recent photos

Now, true care truth brings, I’ve never been confused with a tech guru or science guy.  But, I’ve heard of math. And I’m pretty sure that THERE IS NO SUCH THING AS NEGATIVE ZERO!  And my phone is still on Fahrenheit!

Would 0 or +0 make me happier about the runs I have planned in the city this weekend?

NO!

But that minus sign is an unnecessary twisting of the knife.  Fixing it would go a long way towards wellness for all.  Coders: sun lovers like me are your starfish. Save us one small step at a time.

By the way, given that the week’s number includes “88,” my mind drifts back to 2017 and a happier January trip. One that included hanging with Junior in Key West.

IMG_2015

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

Lawyer represents Client in Client v. Adversary.   Lawyer knows that Attorney represents Adversary.     Adversary calls Lawyer directly to discuss settlement.   Attorney has not consented to direct communication between Lawyer and Adversary.  Which is most accurate?  The no-contact rule:

  • A.  Does not apply because Adversary initiated the communication.
  • B.   Prohibits Lawyer from communicating with Adversary.
  • C.   Prohibits Lawyer from communicating with Adversary, unless Adversary is also a lawyer.
  • D.   None of the above is even close to accurate.

Question 2

Me: “Do not state or imply that you’re disinterested.  And, if you know that the person misunderstands your role, correct their misunderstanding.”

Given my statement, the “person” must be ______.

  • A.  adverse to lawyer’s client
  • B.  unrepresented
  • C.  a witness
  • D.  a juror

Question 3

Lawyer represents Client in Client v. Organization.   Lawyer knows that Attorney represents Organization.  Under the Rules of Professional Conduct, does Lawyer need Attorney’s consent to discuss the case with former employees of Organization?

  • A.   No.
  • B.    Yes.
  • C.  Yes, but only if they were part of the “control group.”
  • D.   Yes, unless their departure from Organization was involuntary.

Question 4

Lawyer drafted a will for Client.  Lawyer’s child benefits under the will.   For Lawyer to avoid a disciplinary prosecution:

  • A.   Client must be related to Lawyer’s child.
  • B.   Lawyer must be married to Client.
  • C.   Client must be an attorney.
  • D.  None of the above.  This is a violation no matter what

Question 5

Two weeks in a row!

Yes, I’m on my way to Canada.  But I’ll be back.  Mom – don’t worry. When I finally decide to move, I’ll tell you before I announce it on the blog.

Anyhow, Her Royal Highness the Duchess of Sussex was born in Canada. Later, she played a paralegal-turned-lawyer on a long-running tv show.  As I alluded to last week, she and Prince Harry recently caused a commotion in the Commonwealth by announcing their plans to leave England for Canada (and the U.S.)

Originally coined by a British tabloid, what is the one-word name that encompasses anything & everything related to the uproar over the Prince & Princess’s decision to depart Great Britain?

The Over/Under and a Bizarre Disciplinary Hearing

I was a disciplinary prosecutor for almost 14 years.  My role afforded me an opportunity to witness some rather strange stuff during disciplinary hearings.

But nothing so bizarre as recent events in the Cal State Bar court.

I suspect many of you have heard of Michael Avenatti.

As I blogged here, Stormy Daniels’ former lawyer has been charged with federal crimes in two different jurisdictions.  In the Southern District of New York, prosecutors allege that he conspired to extort Nike.  Meanwhile, in the Central District of California, the government alleges that he misappropriated approximately $1.6 million from a client named Gregory Barela.

The Cal State Bar has initiated a disciplinary case against Avenatti.  It’s based on his dealings with Barela.  A preliminary hearing took place last month.  As reported by AP News, Fox News, and the San Diego Tribune, Avenatti didn’t have much good to say about the disciplinary case against him.  Among other comments:

Okay then!

Anyhow, things took an even stranger turn yesterday: IRS agents arrested Avenatti during a break in his disciplinary hearing.

Image result for wait what gif

You read that correctly.  You can read more about it pretty much everywhere, including The Daily Beast, CNBC, The Washington Post and The New York Times.

In gambling, a popular bet is the “over/under.” Bettors wager that a particular number will be over or under a number that is set by the house.

For example, in Monday night’s college football championship game between LSU and Clemson, most sports books closed the “over/under” at 66 total points.  The final score was 42-25, for a total of 67.  Thus, those who bet “the over” won.

By the numbers, most lawyers go through their careers without ever having to appear at a disciplinary hearing.  Even more make it to retirement without getting arrested.

Until today, I’d never stopped to consider a lawyer’s odds of being arrested during the lawyer’s own disciplinary hearing.  Having thought about it, if the “over/under” for how many times it will happen in the rest of my natural born life is “1,” I’ll take the under.

Of course, that’s the same bet I’d have made last week, last year, and last century.

And look how that would’ve turned out.

Set Reasonable Expectations for Clients

Image result for communication breakdown meme

Last week, I presented at a meeting of the Windham County Bar Association.  The audience included lawyers of all different ages, practice areas, and firm size.

I enjoy the seminars attended by lawyers with varied backgrounds & experiences.  They provide an opportunity to get down to the nitty gritty – the basics of professional responsibility that apply to all of us.

Here’s a tip that spans the gamut: work hard to manage client expectations.

Rule 1.3 of the Vermont Rules of Professional Conduct requires a lawyer to act with reasonable diligence and promptness when representing a client.  The first sentence of Comment [3] is:

  • “Perhaps no professional shortcoming is more widely resented than procrastination.”

The Comment goes on to outline the risks associated with a failure to act with reasonable diligence.

I’ve worked here for 21 years and reviewed more than 3000 disciplinary complaints.  I agree that clients don’t appreciate lawyers who procrastinate.  However, to the extent that the Comment suggests that disciplinary complaints are driven by the wide resentment at procrastination, I disagree

In my experience, disciplinary complaints are not driven by resentment.  They are driven by a lawyer’s failure to meet a client’s expectations. That is: the client didn’t achieve the expected result, in the expected time frame, at the expected cost.  Nor did the lawyer communicate with the client as often as the client expected.

Often, these “failures” are not failures at all, and certainly aren’t ethics violations.  Rather, they’re the predictable result of a lawyer’s failure to set reasonable expectations at the outset of the representation.

Imagine:

“Dear Bar Counsel:

I don’t want to get my lawyer in trouble, but I don’t want anyone else to have the same experience I did.  I hired my lawyer 3 years ago.  When I did, my lawyer told me that I had a great case and that I should expect X. 

At first, things were great.  My lawyer seemed interested in my case and we spoke all the time.  Things have changed.

Here we are, 12 months later and there’s no end in sight.  My lawyer now tells me that the best I can hope for is far less than X.  My lawyer is going to drop me as a client unless I come up with more money.  I don’t have any more money! I already spent $Y! I never would’ve hired the lawyer if I had known it was going to take this long and cost this much to get what I could’ve gotten on my own.”

That’s not an uncommon complaint.

Consider:

  • far less than X,
  • in 12 months, at
  • $Y.

Guess what they often turn out to be?

Exactly what the client should’ve expected from the outset, but for the lawyer’s failure to set reasonable expectations.  In other words, from the beginning, the professional relationship proceeded under the illusion that communication had taken place.

In a way, then, I don’t blame the client for being upset.  How was the client to know?

Here’s how:  you.

Communicate reasonable expecations as to outcome, cost, and length of time to resolution.  Do so early & often.  A lawyer who doesn’t risks a communication breakdown that turns good times into bad times.

Image result for communication breakdown led zeppelin album art

Monday Morning Answers #187

When it comes to this blog, the royal watchers are alive & well!

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
  • Evan BarquistMontroll Backus & Oettinger
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, John Marshall Law School
  • Corinne DeeringPACE Registered Paralegal®.  Paul Frank & Collins
  • Erin GilmoreRyan Smith & Carbine
  • Laura Gorsky, Esq.
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy,  JB Kennedy Associates, Blogger’s Mom
  • John LeddyMcNeil Leddy & Sheahan
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Lon McClintockMcClintock Law Offices
  • Jeffrey MessinaBergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Nancy Hunter Rogers, Chamberlin School 
  • Jim Runcie, Ouimette & Runcie
  • Jay Spitzen, Esq.
  • Jonathan Teller-Elsberg, Vermont Law School, JD Candidate
  • Jason Warfield, Vermont Law School, Class of 2020
  • Lucia WhitePractice Manager/Paralegal, Dunkiel Saunders 
  • Thomas Wilkinson, Jr., Cozen O’Connor
  • Zachary York, Vermont Superior Court, Chittenden Civil 

Answers

Question 1

A client’s failure to abide by the terms of a fee agreement:

  • A.   is not grounds for a lawyer to move to withdraw
  • B.   mandates that the lawyer move to withdraw
  • C.   permits the lawyer to move to withdraw.  V.R.Pr.C. 1.16(b)(5)
  • D.  is not mentioned in the rules of professional conduct

Question 2

Lawyer called me with an inquiry.  My response included the following words and phrases:  “knowledge,” “violation,”  “substantial question,”  and “honesty, trustworthiness, fitness.”

What did Lawyer call to discuss?

  • A.  Informing a court that a client had testified falsely in a civil matter.
  • B.  Informing a court that a criminal defense client had testified falsely.
  • C.  Reporting another lawyer’s misconduct.  V.R.Pr.C. 8.3
  • D.  Whether reciprocal discipline would be imposed in Vermont as a result of Lawyer being sanctioned in another state.

Question 3

Law Firm has a Facebook page.  Partner posts “the first 25 to ‘like’ this page win a free iPod!”  Which rule might the post violate?

  • A.   The rule that prohibits a lawyer from paying another to recommend a lawyer’s services. See my blog post: Like to win a Prize!
  • B.   The rule that prohibits the unauthorized practice of law.
  • C.   The rule on communicating with a represented person.
  • D.   Last month, the Vermont Supreme Court ruled that such a statement does not violate the Vermont Rules of Professional Conduct.

Question 4

By rule, a lawyer shall not disburse from the trust account:

  • A.   True.
  • B.   Without “collected funds” and there are no exceptions.
  • C.   Without “collected funds” but there are some exceptions.  See my blog post: Disbursing without Collected Funds
  • D.   Without the client’s consent, confirmed in writing.

Question 5

Following Caesar’s assassination, Brutus was forced to leave Rome.

One of my favorite fictional legal professionals is Rachel Zane.  In the television show Suits, she worked for many years as a paralegal before finally passing the LSAT, getting into law school, and becoming a lawyer.

In real life, the actress who plays Zane made headlines this week, not for leaving Rome, but for leaving her husband’s home country.

Who is the actress who played Rachel Zane in Suits?

Her Royal Highness The Duchess of Sussex, Meghan Markle

Image result for meghan markle title