Five For Friday #193

Blunders make me laugh.

I have no idea why; they just always have.  So, I’m going to share a blunder that, upon discovering last night, made me burst out laughing.  Don’t worry, in the end, I’ll tie it to both 193 and February 28.

Let’s start with a vocab quiz.

Today’s vocabulary word is “dord.”  Without assistance, can you define it or use it correctly in a sentence?  I’ll give you a few minutes to think.

If your answer is “yes, I can define it” or “yes, I can use it correctly in a sentence,” let me remind you of your duty not to deceive bar counsel.

You see, “dord” isn’t a word.  As such, it’s not a part of speech and lacks both a definition and an etymology. Yet, from 1934 until 1947, it appeared in each edition of Webster’s New International Dictionary, listed as a noun and defined as a “synonym for density used in physics and chemistry.”

Five years after it first appeared in print, a Webster’s editor noticed that “dord” did not have an etymology.  It’s not clear to me why the editor was reading through the “d’s” or why it took 5 years for someone to notice.  Still, the editor investigated.

The editor discovered that, way back in 1931, another Webster’s employee had submitted a suggestion that the dictionary add to the list of words that the letter “d” properly abbreviates.  The employee suggested:

• “D or d, cont./denisty.”

Someone mistook what the employee meant as “upper-case D or lower-case d” for “Dord” and, well, the rest is history.  Then, even after the blunder was discovered, “dord” appeared in 8 more editions.  You can read the entire story in Smithsonian Magazine.

The blunder – and its duration – make me laugh.  Besides making me laugh, it struck a chord.

There are days when I take stock and wonder how in the world did I get here? Younger Me never could have imagined a world in which, because of our job, we’re often in contact with, for example, judges, bar association leaders, and lawyers far smarter, more competent, and more dedicated to the profession than we are. And those people not only know who we are, they know our name! It’s amazing and makes me thankful that what I have is eons beyond what I ever expected.  Simply, thankful that all of you included a dord like me.

Oh, and by the way, the editor who figured out that “dord” didn’t belong?

As you can see in his note below, he discovered the blunder on February 28, 1939.  Today’s date and quiz number.

Long live blunders!

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

In legal ethics, the words “current,” “former,” and “prospective” are most closely associated with the rule or rules on _______________:

• A.  trust accounting
• B.  advertising
• C.  candor
• D.  conflicts of interest

Question 2

Attorney called with an inquiry. I listened, then responded:

• “the rule says that you may do so to respond to allegations in any proceeding that concern your representation of the client.”

Do what?

• A.   contact a represented person without the consent of the person’s lawyer.
• B.   file an ex parte pleading with the tribunal before which the proceeding is pending.
• C.  present criminal charges even if it provides an advantage in the proceeding.
• D.  Disclose otherwise confidential information related to the representation of the client

Question 3

Competence.  Communication.  Conflicts.  Candor.

There’s another word that begins with “C” that is a serious violation of the rules. The word, however, doesn’t appear in any of the rules.  It is notably absent from both the trust accounting rules and the rule on safekeeping client property.

What’s the word?

Question 4

Lawyer and Firm represent Client in Client v. Other.

Last week, Firm hired Paralegal.  Paralegal used to work at the law office that represents Other.  Paralegal was personally and substantially involved in the law office’s representation of Other.

True or false:  paralegal’s conflict is imputed to Lawyer and Firm and they must withdraw from representing Client.

Question 5

Here’s your hint:  had I not decided to write about my Uncle and honor him with a Question 5 about the American Revolution, I would’ve used this question on February 14.

Lawrence Mattingly practiced law in Illinois.  Once, he arranged a meeting between a client and federal agents/prosecutors who were trying to build a tax evasion case against the client.  During the meeting, the client claimed, “I’ve never had much of an income.”

Later, Attorney Mattingly provided Treasury agents with a letter in which he conceded that his client had, in fact, earned a substantial income over the previous 4 years. The “Mattingly Letter” was admitted at trial and used as evidence against the client.  The client was convicted and sent to prison.

Who was the client?

 

 

 

 

 

Buried Ledes, Hackers, and Protecting Client Data

A friend of mine used the word “lede” in a text she sent me earlier this week.  So impressed that she knew the proper spelling, the word has stayed on my mind ever since.  Good thing.  Because as I proofed this post, I realized that I almost buried the lede.

Even Vermont-sized law firms are vulnerable to hackers.

In January, hackers stole data from five small firms.  From each, the hackers demanded 100 Bitcoin to restore access to the data and 100 Bitcoin not to sell it. Then, the hackers began publishing the data on the web. Among others, Law.Com, CoinTelegraph and the ABA Journal have the story.

Did I mention that, at the time, 100 Bitcoin cost $930,000?  Today it’s only $890,416.

I’ll return to the story in a moment.  First, however, I’d like to introduce Jim Knapp.

Jim is Vermont State Counsel for First American Title Insurance.  But the day I blog about underwriting will be the day I retire as a blogger.

For many years, Jim and Kevin Ryan presented their famed “Road Show” across Vermont. It was a CLE that included great tips on tech and data security. You know – tech competence!

I’ll start with the basic premise: lawyers have a duty to take reasonable precautions against the inadvertent disclosure of or unauthorized access to information relating to the representation of a client. The duty applies to the electronic transmission and storage of client information & data.

As I noted here, there is no set answer to “what are reasonable precautions?”  The ABA’s Standing Committee on Ethics and Professional Responsibility agrees. In Formal Opinion 477, the Committee advised:

• “What constitutes reasonable efforts is not susceptible to a hard and fast rule, but rather is contingent upon a set of factors. In turn, those factors depend on the multitude of possible types of information being communicated (ranging along a spectrum from highly sensitive information to insignificant), the methods of electronic communications employed, and the types of available security measures for each method.”

With respect to cyber threats, the Committee stated:

• “the reasonable efforts standard. . . rejects requirements for specific security measures (such as firewalls, passwords, and the like) and instead adopts a fact-specific approach to business security obligations that requires a ‘process’ to assess risks, identify and implement appropriate security measures responsive to those risks, verify that they are effectively implemented, and ensure that they are continually updated in response to new developments.”

Now, back to the story of the hackers.

Along with blogger’s bloc, the story made realize today is a great day for a Q&A with Jim Knapp. Jim was kind enough to agree.

MK: Thanks for doing this Jim. First reaction when you read about the hack?

Jim: So, this would be deemed a really bad day! First you are locked out of your system, and even if you had good recent backups, and could expend the money and time to restore everything, second, the bad actors are still threatening to sell / release your data. Not to mention, now you have a data breach and must satisfy all the legal requirements related to the analysis and notifications imposed by State laws. What a way to start a week!

MK: I’ll say. For me, this hit home because it didn’t involve one of the ginormous multi-national firms. The firms involved are similar in size to most Vermont firms. How do Vermont lawyers protect themselves?

Jim: As we’ve seen, 2020’s are barely a few weeks old and the news is not good. Ransomware has reached a new high(?) / low (low). The bad actors are not just encrypting your files, they are offering to publish your firm’s files to the public, or at least the public that uses the dark web.

You can no longer rely on having anti-virus software as your only means of protection. Backups are important to recover your data in the case of disaster, but a good backup won’t stop a bad actor from publishing data they have stolen from your firm. Acting reasonably is acting from a sufficient pool of knowledge to understand the risks and the potential solutions.

MK: I love the last sentence: “acting reasonably is acting from a sufficient pool of knowledge to understand the risks and the potential solutions.” Many lawyers, myself included, aren’t exactly tech savvy. My sense is that many firms “leave that to the IT person.” Of course, in the end, a lawyer is responsible for ensuring that the nonlawyer staff – including IT staff and vendors – are protecting client data. Anyhow, how do we move from toes-in-the-water to the deeper end of that pool of knowledge? Some states require tech CLE. In December 2018, I posted this blog wondering if we should.

Jim: While the idea of mandatory participation in professionalism, mindfulness, wellness, etc., are all good subjects, it seems to me that perhaps mandatory participation in cybersecurity training would be a worthy subject. Not just for lawyers but for all persons who work in a law office. As regards Vermont, out of the 2700+ lawyers, I’ll bet not more than 350-400 unique persons have attended a well prepared and presented program on cybersecurity. Of course, those folks will roll their eyes, if they have to hear one more presentation on “don’t click”; have good passwords etc.

MK: I agree. But I still run into lawyers who say, “I wouldn’t even know what the presenters are talking about.”

Jim: Gaining a suitable level of the essential elements of data security is a challenging task if you choose to pursue this on your own. The key is finding a suitable CLE program that can translate the arcane elements of information security into knowledge you can use to assess how safe your law office environment is. Everyone whose practice depends on the availability of information stored on a computer system owes it to their clients and to themselves to attend enough CLE programs to understand what options exist for protecting their digital information.

MK: Music to my ears! But it has to be more than just “go to a tech CLE,” right?

Jim: Training is a key element to protecting your digital environment. But training alone isn’t sufficient, as no matter how diligent you are in reminding all your colleagues not to open questionable emails, stay away from questionable websites, and to watch out for the social engineers looking to convince you to hand over key information like passwords, the bad actors will eventually find an opening and pounce.

Information security for a law office involves all kinds of elements, from

• properly configuring the hardware included in your network, like the router that connects your office to the outside world; to,
• running a suitable firewall; to,
• using effective anti-malware software; to,
• keeping your operating system and applications up to date with all patches (Note: if you are still using Windows 7 you must STOP now. Microsoft is no longer providing patches for Windows 7 and there are still numerous vulnerabilities that have never been fixed and now will not be fixed)
• possibly running intrusion detection and intrusion prevention systems within your network;
• and more.

MK: Good stuff! Last question before we lose everyone: I’ve often called you for tips on backing up client data. Can you give us the quick version that you’ve given me on backups, airgap, etc.?

Jim: Backup, like all tech issues, has lots of components. The right backup strategy depends on what kind of data you have, how much data you have, and where you store your data. But, everyone should consider at least the following elements:

• Nearline – a backup that is connected to your network storage, or to your personal PC (wherever you store your day to day work product) all the time and periodically (hourly, every few hours, at least twice a day), duplicates the data in your data storage. Usually, an external USB hard drive purchased for less than $100.00 will suffice. This allows you to recover immediately, or nearly immediately from a problem with your storage device, e.g. your hard drive or SSD croaks at 3:30 and the response to the motion for summary judgment is due tomorrow.
• Offline – a backup that is stored off-site. It can be cloud based, or a rotation of physical drives, one of which is stored off-site at all times. This provides a recovery option for the electrical surge that kills your onsite storage, a fire, a flood, or somebody breaks into your office and steals the computers. This backup is run at an interval calculated by how much work-product you are willing to lose and have to recreate. It could be measured in weeks, but I would offer that daily is a more reasonable assessment.
• Airgap – this a backup device that is only connected to your network or the PC while the backup is running. This is one tool in the kit to address a ransomware attack on your systems. Again, an airgap backup will typically fit on a good quality external USB hard drive which is a $100 item. To run the back-up, you connect the device to the storage device you want to backup, and as soon as the backup is complete, you disconnect the backup device and store it safely away from any connection to your data storage systems.

MK: I lied, one more question: you & I bumped into each other at church on Ash Wednesday. Was that your cell phone that went off during mass? Tech competence is a thing at worship too.

Jim: Fortunately no, neither of my cell phones was that particular culprit.

MK:  Good.  The ringtone reflected a failure to act competently when choosing a ringtone.

Jim:  I have two cell phones because of the nature of the insurance business and my employer’s policies. Particularly, in the case of regulators, they can demand access to Company information, some of which may be stored on my phone. And, the Company retains the right to monitor and inspect all data stored on or passing through their data-stream. Now, while I have few secrets worth discovering, and after 40 years of practice in Vermont, net worth is not one of them, I have no desire to expose my personal information to either the regulators or the Company. Hence, I have a personal cell phone and a work cell phone. I would suggest that lawyers should consider the same analysis I did. If you were sued, do you really want opposing counsel and your appointed defense counsel rummaging through the materials on your phone?

MK:  It’s almost as if you’ve seen what’s on my phone.  No, I don’t want anyone rummaging through!  Good reminder though: as I blogged here, lawyers who travel abroad should consider leaving behind devices that contain client data.

Thanks Jim, this was great!

To be clear: being hacked isn’t necessarily an ethics violation.  Even reasonable security can be breached.  My point today is to encourage lawyers and firms to assess the measures that they have in place.  And, to encourage those who don’t know how to perform such an assessment to find someone who does.

Finally, if you or your firm has been breached, you should (1) read my post ABA Addresses Lawyer’s Duties in Response to a Data Breach; and (2) review the Attorney General’s outline of duties that arise under Vermont’s Security Breach Notice Act.

As always, let’s be careful out there.

Wellness Wednesday: Pro Bono Award Recipients

Having spent time at the bar exam the past two days, I was reminded of the Basic Skills Seminar that the VBA presents for new lawyers.  It occurs twice each year: the days before Mid-Year and Annual Meetings.

The agenda includes 2 hours on “Vermont Professionalism.”  I open by discussing professional responsibility, then Eileen Blackwood hones in on the pro bono opportunities.  Over the past few presentations, we’ve used “wellness” as segue from my presentation to Eileen’s.  Specifically, Eileen has made it a point to mention that one of the most rewarding cases of her career was one that she took pro bono.  While Eileen says it better than I can, the reward is the positive feelings that flow from helping someone who desperately needed it, for no other reason than because you could.

On the flip side, let’s leave no doubt: pro bono work is a form of giving that can improve another’s wellness.  To that end, on Wellness Wednesday, I’d like to call your attention to the recipients of the VBA’s 2020 Pro Bono Award: Tom French & Samantha Lednicky.

I’ve pasted in the VBA’s official announcement.  The link is here.

The Vermont Bar Association is proud to announce that Attorneys Thomas M. French and Samantha V. Lednicky will both be this year’s recipients of VBA’s 2020 Pro Bono Service Awards.  The award is given annually to one or more attorneys who exemplify the best traditions of our profession by giving unselfishly of their time and skill to provide pro bono legal services to the poor and disadvantaged.

Thomas M. French is a pro bono emeritus attorney in Brattleboro who was nominated by attorneys James Valente and Thomas Costello for his work with military veterans.  Following military service himself as a JAG attorney, French worked as a general practitioner in Windham County for 50 years, often serving clients pro bono.  After retirement, Attorney French set up a pro bono program at his local American Legion post where he can be found every Tuesday and Thursday helping veterans obtain benefits they have been wrongfully denied.  In 4 years, Attorney French has won 14 out of the 15 actions he brought for his veteran clients, securing nearly $500,000 in benefits for them.  

Samantha V. Lednicky is with the firm of Murdoch Hughes Twarog and Tarnelli in Burlington.  She was nominated by Hon. Helen Toor and Frank Twarog, Esq. who recognized her work in the rent escrow clinic in Chittenden Civil Division.  Not only does Attorney Lednicky regularly volunteer to represent low income tenants at these clinics, but she frequently continues representation beyond the clinic to ensure that the tenants receive justice in the court process.  Attorney Twarog also praised Lednicky for her successful pro bono efforts to win parenting rights for a low income, homeless parent in a case to which she brought “a fresh prospective and her usual diligence.”

Attorneys French and Lednicky will be presented with the VBA’s Pro Bono Service Award at our mid-year meeting luncheon on March 27 in Burlington. 

Congratulations – and thank you – to Sam & Tom!

Related Posts:

• Wellness Wednesday: Meet Alison, Samantha, Shireen, and Alison
• Pro Bono: Rules, FAQs, and Opportunities

 

The February Bar Exam

I’m on my way to a watefront hotel!

Alas, both hotel and waterfront lie just south of the 45th parallel.  As Jimmy sings, I need a change in latitude.

Anyhow, the bar exam begins today.  As soon as I publish this post, I’ll walk the block-and-a-half to the host hotel to help register 104 prospective lawyers who will sit for the Vermont administration of the exam.

The exam they’ll take is not the same exam that many of you took.  In 2016, the Vermont Supreme Court adopted the Uniform Bar Exam (UBE).  For an explanation of how the UBE works, check out this post from February 2017.  In short, the UBE is the same in each of the 35 (or) states that have adopted it.  While each jurisdiction sets its own passing – or “cut” – score, scores are portable.  So, for example, an examinee who sits for the Vermont administration of the exam can use their score to apply for admission in any of the UBE states.

For years, I’ve used this blog to preach an attorney’s duty of competence.  The UBE is one of the initial tools we use to measure competence.  Indeed, in a Q& that I did with Keith Kasper and Andy Strauss, Keith opened by stating that:

• “The UBE is a measure to assure that those applicants we certify for licensure are qualified to practice law. Unfortunately, a law school degree is not sufficient. While not part of the UBE, the MPRE (Multistate Professional Responsibility Exam) is utilized by most states to assure that bar applicants have studied not only the substantive aspects of the law but the ethical requirements of being a lawyer. On the other hand, the UBE evaluates the core legal knowledge of the applicants as to the most important aspects of a modern law practice.  It undergoes periodic review and updating to reflect the modern practice of law in this country. One of the most recent changes since you and I took the bar exam is to add federal civil procedure to the Multistate Bar Exam (“MBE”) portion of the UBE, as procedural aspects of the practice of law are also of great importance to the competent practice of law.”

You can read the full interview here.

Finally, odds are that between 60 and 70 of today’s examinees will attain the 270 that Vermont requires for admission.  Hopefully, many of those who do will stay in Vermont to practice.  To do so, and once approved by the Character & Fitness Committee, they’ll have one year to:

• complete 15 hours (at least 6 of which must be “live”) of continuing legal education in Vermont practice & procedure that has been approved by the Continuing Legal Education Board and certified by the Board of Bar Examiners; and,
• complete a mentorship.

Failure to complete the CLE or mentorship results in an administrative suspension that can only be cured by completion.

The current list of approved CLE courses is HERE.  An outline of the mentorship program is HERE.

We can never have too many mentors.  If you’re willing to serve, let me know and I’ll put you on the list.

 

Monday Morning Answers

Welcome to the week!  Every great work week starts on Monday!

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

Honor Roll

• Karen Allen, Esq.
• Evan Barquist, Montroll Backus & Oettinger
• Penny Benelli, Dakin & Benelli
• Alberto Bernabe, Professor, John Marshall Law School
• Beth DeBernardi, Administrative Law Judge, VT. Dept of Labor
• Andrew Delaney, Martin Delaney & Ricci Law Group
• Cary Dube, Bergeron, Paradis, Fitzpatrick
• Erin Gilmore, Ryan Smith & Carbine
• Laura Gorsky, Esq.
• Benjamin Gould, Paul Frank & Collins
• Bob Grundstein, Esq.
• Anthony Iarrapino, Wilschek & Iarrapino
• Glenn Jarrett, Jarrett & Luitjens
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Jeanne Kennedy, JB Kennedy Associates, Blogger’s Mom
• Elizabeth Kruska, President-Elect, VBA Board of Managers
• John Leddy, McNeil, Leddy, & Sheahan
• Lon McClintock, McClintock Law Offices
• Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
• Jeffrey Messina, Bergeron Paradis Fitzpatrick
• Hal Miller, First American
• Kristen Shamis, Monaghan, Safar, Ducham
• Jay Spitzen, Esq.
• Zachary York, Vermont Superior Court, Civil Division

Answers

Question 1

In Vermont, if a lawyer is precluded from representing a client due to a conflict with another client or a former client, the general rule is that the conflict ___________ imputed to other lawyers in the same firm.

• A.  is  See, V.R.Pr.C. 1.10
• B.  is not

Question 2

There’s a rule that requires lawyers to provide clients with diligent and prompt representation.  A comment to the rule suggests that a sole practitioner’s duty of diligence may include _____________:

• A.   paying a bookkeeper to reconcile the trust account
• B.   transitioning to a cloud-based practice management system
• C.  adopting a succession plan.  V.R.Pr.C. 1.3, Comment [5]
• D.  all the above

Question 3

Attorney & Lawyer both represent Client in the same matter, but do not work in the same firm.  Client agrees that they may share in the fee.  Client’s agreement is in writing and the total fee is reasonable.

True or False:  for the fee division to comply with the rule, it must be in proportion to the services that each performed.

False.  Either (a) the fee must be in proportion to the services that each perform; or (b) each lawyer must assume joint responsibility for the representation.  V.R.Pr.C. 1.5(e)(1).  Per Comment [7] “joint responsibility for the representation entails financial and ethical responsibility for the representation as if the lawyers were associated in a partnership.”

Question 4

This question is probably not fair. But I’m out of ideas, running out of time, and, further, it’s an issue I think we’ll soon be discussing.

Client asks whether you use “cold storage” or a “hot wallet.”  Client assumes you accept payment via:

• A.  Venmo
• B.  ACH Transfer
• C.  Blockchain
• D.  Cryptocurrency

In 2018, I blogged about a Nebraska advisory opinion that addresses issues related to accepting payment via cryptocurrency.  Bitcoin, for instance, is cryptocurrency.  One of the questions: may a lawyer hold cryptocurrency in trust?  I noted:

“Yes, but remember: bitcoins are property, not actual currency.  Rule 1.15 requires lawyers to safeguard client property.  To comply with the duty to safeguard cryptocurrency, a lawyer would need a secure digital wallet.  Of course, if the lawyer accepts cryptocurrency and converts it to U.S. dollars, the funds, if not yet earned, must go into trust.”

Question 5

Legal ethics in the news again!

There’s a rule on trial publicity.  Generally, it prohibits extrajudicial statements that a lawyer knows or should know will have a substantial likelihood of materially predjucing a proceeding.  There’s also a rule that prohibits ex parte communications with jurors.

Donna Rotunno is an attorney who is currently representing a client in a high-profile criminal trial.  The case went to the jury on Tuesday, two days after Newsweek published an opinion piece authored by Rotunno. In it, she wrote:

“I implore the members of this jury to do what they know is right and was expected of them from the moment they were called upon to serve their civic duty in a court of law.”

The prosecutor called the opinion piece “completely, 100% inappropriate behavior. It borders on tampering with the jury.”  Imposing a gag order, the presiding judge said:

“Defense team you are ordered to refrain from communicating with the press until there is a verdict in the case.  I would caution you about the tentacles of your public relations juggernaut.”

Who is Attorney Rotunno’s client in the case?

Harvey Weinstein

Five for Friday #192

Happy Friday!

Today I choose to look on the bright side:  it might be cold, but the sun is out and, well, at least it’s a dry cold!

Looking for topics for today’s intro, I found an intriguing connection involving today’s date.

On February 21, 1975, John Mitchell, John Erhlichman and H.R. Haldeman were sentenced to prison after having been convicted of crimes committed during the Watergate scandal.

I was 7 years old at the time.  This morning, it struck me at how little I know.

Of course, having mentioned it at several seminars, I’m aware of the impact that Watergate had on legal ethics & professional responsibility.  As the ABA Journal notes here, the scandal resulted in both the profession’s move to the Model Rules of Professional Conduct and the requirement that lawyers pass the MPRE to be admitted.  Still, if you’d have told me this morning that two of Mitchell, Erhlichman and Haldeman were lawyers, I’d have gotten Mitchell, but it would’ve been a coin flip as to the other. *

Also, today is Barbara Jordan’s birthday.

I didn’t know that until Google informed me this morning.  Frankly, while generally aware that Jordan served in Congress, I had no idea of her place in history. Among other notable accomplishments, Jordan was the first African-American woman elected to the Texas Senate and the first African-American from a southern state elected to the United States House of Representatives.

In addition, Jordan was a lawyer.  Not just any old lawyer, but a skilled orator.  According to American Rhetoric, Jordan gave two of the top 100 speeches of the 20th century.  Talk about satisfying the duty of competence!

Per American Rhetoric, Jordan’s Keynote Address to the 1976 Democratic National Convention was #5. The other?  Well, to me, it’s a speech that makes for the intriguing connection between February 21, Jordan, and Watergate.

The speech is called Statement on the Articles of Impeachment.  It was the opening statement to the House Judiciary Committee as it considered whether to impeach President Nixon.  It came in as American Rhetoric’s 13th most important speech of the last century.

I find it incredibly intriguing that an event that had such a profound impact on legal ethics & professional responsibility has not one, but two ties to February 21. As for a larger point, I don’t think I have one.  Still, I opened this post by referring to the weather and choosing to focus on the brighter side, so I’ll close by doing the same.

Yes, I will continue to reference Watergate when I speak on the history of legal ethics and professional responsibility.  I will reiterate that at least 13 lawyers were disbarred or suspended and that 11 were convicted of crimes.  However, going forward, I will now be sure to mention the brighter side: Barbara Jordan and her contributions not only to the legal profession, but to society.

Choose the bright side.

*It was Erhlichman.

Onto the quiz!

Question 1

In Vermont, if a lawyer is precluded from representing a client due to a conflict with another client or a former client, the general rule is that the conflict ___________ imputed to other lawyers in the same firm.

• A.  is
• B.  is not

Question 2

There’s a rule that requires lawyers to provide clients with diligent and prompt representation.  A comment to the rule suggests that a sole practitioner’s duty of diligence may include _____________:

• A.   paying a bookkeeper to reconcile the trust account
• B.   transitioning to a cloud-based practice management system
• C.  adopting a succession plan
• D.  all the above

Question 3

Attorney & Lawyer both represent Client in the same matter, but do not work in the same firm.  Client agrees that they may share in the fee.  Client’s agreement is in writing and the total fee is reasonable.

True or False:  for the fee division to comply with the rule, it must be in proportion to the services that each performed.

Question 4

This question is probably not fair. But I’m out of ideas, running out of time, and, further, it’s an issue I think we’ll soon be discussing.

Client asks whether you use “cold storage” or a “hot wallet.”  Client assumes you accept payment via:

• A.  Venmo
• B.  ACH Transfer
• C.  Blockchain
• D.  Cryptocurrency

Question 5

Legal ethics in the news again!

There’s a rule on trial publicity.  Generally, it prohibits extrajudicial statements that a lawyer knows or should know will have a substantial likelihood of materially predjucing a proceeding.  There’s also a rule that prohibits ex parte communications with jurors.

Donna Rotunno is an attorney who is currently representing a client in a high-profile criminal trial.  The case went to the jury on Tuesday, two days after Newsweek published an opinion piece authored by Rotunno. In it, she wrote:

“I implore the members of this jury to do what they know is right and was expected of them from the moment they were called upon to serve their civic duty in a court of law.”

The prosecutor called the opinion piece “completely, 100% inappropriate behavior. It borders on tampering with the jury.”  Imposing a gag order, the presiding judge said:

“Defense team you are ordered to refrain from communicating with the press until there is a verdict in the case.  I would caution you about the tentacles of your public relations juggernaut.”

Who is Attorney Rotunno’s client in the case?

Innovation in Attorney Regulation

I’ve written often on innovation in attorney regulation.  In short, having worked in the field for 22 years, I believe that a professional & comprehensive regulatory program must include three components:

1. aggressive outreach, guidance, referrals and education to assist lawyers to comply with their professional responsibilities;
2. meaningful sanctions for serious violations; and
3. a non-disciplinary diversion program for low-level misconduct.

In order:

1.  is known as “proactive regulation.” As I’ve written, it works.
2. both deters misconduct and promotes public confidence in the Judiciary’s ability to regulate the profession.  Public confidence is critical: without it, one of the other branches might seek to step in.
3. provides a blend of the benefits of 1 & 2.

Lately, “innovation in regulation” has taken on new meaning.  Many in the field view aspects of the current model of attorney regulation as serving to impede access to justice.  In particular,

• by defining the “practice of law” to prohibit anyone but lawyers from performing & providing certain tasks & services; and
• by prohibiting nonlawyers from owning or investing in law firms.

Earlier this week, the ABA House of Delegates considered Resolution 115.  It was proposed by the ABA’s Center for Innovation and the ABA’s Standing Committees on:

• The Delivery of Legal Services
• Ethics & Professional Responsibility
• Attorney Regulation, and
• Public Protection in the Provision of Legal Services.

The resolution (as proposed) and accompanying report are here.

At first blush, the original language might not appear controversial:

“RESOLVED, That the American Bar Association encourages U.S. jurisdictions to
consider innovative approaches to the access to justice crisis in order to help the more
than 80% of people below the poverty line and the majority of middle-income Americans
who lack meaningful access to legal services when facing critical civil legal issues, such
as child custody, debt collection, eviction, and foreclosure;

FURTHER RESOLVED, That the American Bar Association encourages U.S.
jurisdictions to consider regulatory innovations that have the potential to improve the
accessibility, affordability, and quality of civil legal services, while also ensuring necessary and appropriate protections that best serve the public; and

FURTHER RESOLVED, That the American Bar Association encourages U.S.
jurisdictions to collect and assess data regarding regulatory innovations both before and
after the adoption of any innovations to ensure that changes are effective in increasing
access to legal services and are in the public interest.”

If my use of the phrase “at first blush” did not already give it away, Resolution 115 proved quite controversial.  Not so much because of the “resolutions,” but because of the report’s recommendation that states consider:

• creating new categories of legal service providers;
• allowing lawyers to partner & share fees with nonlawyers; and,
• rethinking what constitutes the “unauthorized practice of law.”

For a sense of the opposition, I suggest this story on Law.com or this letter from the President of the Ohio State Bar Association to its members.

In the end, the ABA House of Delegates passed a “revised” version of Resolution 115.  The ABA Journal has the story here, while the resolution as adopted is here.

I am blogging about this for two reasons.

First, last week, the Supreme Court sent out for comment a proposal to create the Bar Assistance Program.  Essentially, bar counsel would focus entirely on prevention and assistance, with no role in the process by which complaints are reviewed.  The upshot: I would no longer screen disciplinary complaints. I blogged about the proposal here and explained why I support the concept here.

Second, at its meeting scheduled for March 27, the Professional Responsibility Board will consider whether to spend the remainder of this year studying whether:

1. lawyers should be required (a) to carry malpractice insurance; or (b) to disclose to clients the fact that they don’t;
2. paralegals should be authorized to perform tasks & services that, for now, only lawyers are authorized to provide; and,
3. to relax the prohibition on nonlawyer ownership & investment in law firms.

I will be very clear: the March meeting is one at which PRB members will familiarize themselves with the issues and decide whether either merits further consideration and, if so, who else to involve.  No substantive decisions will be made.

Innovation isn’t a bad thing.

Many lawyers currently practicing in Vermont began here when there was no full-time disciplinary prosecutor.  Cases were assigned ad hoc to lawyers willing to take them.  Even more current practitioners worked here when we put all our resources into disciplinary investigations and prosecutions, and none into proactive guidance and assistance. I’m biased, but each innovation seems to have worked out okay.

As many of you know, I’m a former basketball coach.  Coaches have a saying that they love to use to motivate their players to practice harder:  “if you’re not getting better, you’re getting worse.”

We should keep that in mind.   We won’t improve by accident.

Bart Simpson & Attorney Discipline

A brief history lesson: Fox 44 did not begin broadcasting in Vermont until 1997.  I’m so old that I never watched The Simpsons until I moved to DC for law school.

It’s difficult to imagine someone not familiar with The Simpsons.  If you aren’t, it’s set in the fictional town of Springfield where Bart and his sister Lisa attend Springfield Elementary School.  The opening sequence includes Bart being disciplined at school, his punishment having to write the same sentence over & over on a chalkboard.  The sentence changes each episode.  For instance:

Well, as reported by the ABA Journal and Cleveland.com, Springfield Elementary’s discipline system has moved to the courts.

In January, an Ohio judge initiated contempt proceedings as a result of the lawyer’s conduct during a criminal trial.  The lawyer wanted the court to instruct the jury that it could find that the lawyer’s client had acted in self-defense.  The judge decided against giving the instruction.  The lawyer wasn’t pleased.  Among other things, and to show the jury that he wasn’t participating in what he thought was an unfair trial, the lawyer stood behind a television set (effectively hiding) as the judge instructed the jury.

The contempt hearing was last week.  Per Cleveland.com, the lawyer arrived at the “the hearing expecting to serve time in jail. He brought no briefcase or laptop, and even left his house keys behind.”  While prepared for the worst, that’s not what the lawyer got.

Instead, the judge fined the lawyer $500 and ordered him to write – legibly – two sentences, 25 times each:

1. I will not engage in conduct that is prejudicial to the administration of justice or in any other conduct that adversely reflects on my fitness to practice law.
2. I shall not engage in conduct intended to disrupt a tribunal or engage in undignified or discourteous conduct that is degrading to a tribunal.

(Each states a rule of professional conduct implicated by the lawyer’s conduct.)

The lawyer complied on the spot.  You can view the court’s order and the lawyer’s handwriting at the bottom of the Cleveland.com article.

No word on whether the school bell rang as soon as the lawyer finished writing.

PS: you can view all of Bart’s chalkboard quotes here.

 

 

 

 

Monday Morning Answers

Welcome to Monday.  Friday’s questions are here.  Today’s answers follow the Honor Roll.

Honor Roll

• Karen Allen, Esq.; Karen Allen Law
• Matthew Anderson, Pratt Vreeland Kennelly & White
• Evan Barquist, Montroll Backus & Oettinger
• Erin Gilmore, Ryan Smith & Carbine
• Laura Gorsky, Esq.
• Robert Grundstein, Esq.
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
• Jeanne Kennedy,  JB Kennedy Associates, Blogger’s Mom
• Mark Kennedy, Father of the Blogger
• John Leddy, McNeil Leddy & Sheahan
• Tom Little, Little & Cicchetti
• Pam Loginsky, Washington Association of Prosecuting Attorneys
• Lon McClintock, McClintock Law Offices
• Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
• Jeffrey Messina, Bergeron Paradis Fitzpatrick
• Hal Miller, First American
• Herb Ogden, Esq.
• Dan Richardson, Tarrant Gillies & Richardson
• Jim Runcie, Ouimette & Runcie
• Jay Spitzen, Esq.
• Robyn Sweet, CORE Registered Paralegal, Cleary Shahi  & Aicher
• Jason Warfield, Vermont Law School, Class of 2020
• Thomas Wilkinson, Jr., Cozen O’Connor
• Zachary York, Vermont Superior Court, Chittenden Civil 

Answers

Question 1

The Vermont Bar Association’s Pro Bono Committee meets next week to review nominations for the 2020 Pro Bono Award. I chair the committee, so if you want to nominate a lawyer, email me the nomination.

By rule, lawyers are expected to provide _________________:

• A.   pro bono services to those in need.
• B.   50 hours of pro bono legal services.  V.R.Pr.C. 6.1
• C.   60 hours of pro bono legal services.
• D.   a reasonable amount of pro bono legal services.

Question 2

A lawyer called me with an inquiry. I listened, then responded “the first question is whether the new matter is the same as or substantially related to the old matter.”

Given my response, the lawyer called to discuss the rule on:

• A.  candor to a tribunal.
• B.  communication with a juror.
• C.  communication with a represented person.
• D.  conflicts of interest.  V.R.Pr.C. 1.9(a)

Question 3

Which is expressed in a different rule than the others?

• A.  don’t state or imply that you’re disinterested.
• B.  don’t contact her unless the clerk has certified that her term is complete.
• C.  if she misunderstands your role, correct the misunderstanding.
• D.  if her interests are likely to conflict with your client’s, don’t give her any legal advice other than the advice to secure counsel.

B is in Rule 3.5, the rule that addresses communicating with jurors.  A, C, and D are expressed in Rule 4.3, the rule that sets out a lawyers duties when dealing with an unrepresented person.

Question 4

At a CLE, I said “the rule includes 3 exceptions:

1. the testimony relates to an uncontested issue;
2. the testimony relates to legal services provided in the case; or
3. disqualifying the lawyer would cause substantial hardship to the client.”

I was discussing the rule that applies when a necessary witness in a trial is _______:

• A.   a lawyer who is representing a party to the same trial.  V.R.Pr.C. 3.7
• B.   a former client of a lawyer who is representing a party to the same trial.
• C.   a current client of a lawyer who is representing a party to the same trial.
• D.   a lawyer who used to be the presiding judge’s law partner.

Question 5

With Captain Kennedy in mind this week, a two-part question:

In an argument made during a jury trial that took place in 1770, a criminal defense attorney said:

• “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence . . . It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished. But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, ‘whether I do good or whether I do evil is immaterial, for innocence itself is no protection,’ and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.”

Name the lawyer and the event that resulted in the lawyer’s clients being charged.

John Adams.  The Boston Massacre.

 

 

Happy Birthday PK!

Note:  I originally posted this on February 15, 2019.   In that my brother’s birthday comes each year, I’ll continue to post on every February 15.

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

Welcome to #151!

Bacardi isn’t today’s topic.  I can’t stand rum.

Today’s topic is my brother.

My brother is Patrick Francis Kennedy.  Some of you may know him as “The First Brother.” That’s how I list him when he earns a spot on the #fiveforfriday Honor Roll.  No, he’s not a lawyer.  He’s simply incredibly smart and can do legal research.  When he feels like it, he submits a perfect 5 for 5.   Give him a few days and he’d argue your motion to dismiss.

Then he’d argue opposing counsel’s position and leave the judge with a difficult decision.

I’m not sure how best to describe Patrick.  He is a lot of things.

Patrick makes his living as some sort of coder.  Or maybe he’s a programmer or a network engineer.  Honestly, his professional world is so Greek to me that I’m not exactly sure what he does.  But he’s damn good at it.

Patrick used to be in the Army.  He drove tanks.  Then, he did something, I can’t remember where or what, that exposed his tech competence to a superior officer.  That was the end of driving tanks. They whisked him off to West Point to run systems and such.  Now, he works for MyWebGrocer.

Patrick is also a top-notch chef.  He’s won multiple chili contests, an accomplishment that actually works to mask how adept he is at cooking anything & everything.  Not only does he know the precise temperature at which the various meats are best served, he’s knows how to order the right wine for each.  And how to make the right cheese for each wine.  Don’t like wine?  He brews beer.

My brother can fish & hunt.  He can explain how a piano works, how to attack a zone defense, and how the Union Army prevailed at Gettysburg.  He is conversant in Spanish and Italian.  He’s traveled extensively in Europe, been stationed on the DMZ, and coached a middle school basketball team to a tournament championship.

While wearing a tuxedo.

He can capably discuss Cornwallis at Yorktown, the aerodynamics at Daytona, and the paradoxes of time travel.  He could do your kid’s calculus homework then show her little sister how to build a leprechaun trap.  Afterwards, he’d let you choose whether to have him teach you how to make candles, brisket, or reservations for a Papal mass.

Patrick has constructed compelling arguments that Ignatius J. Reilly is literature’s greatest character, Rock of Ages is Broadway’s greatest musical, and Rick Burleson is Boston’s greatest shortstop.  He was the only Vermonter among the 25 finalists for the President of Red Sox Nation.

He doesn’t cheat at board games or throw tantrums when he loses.  (Hello bar counsel!) He’d crush you in Trivial Pursuit or Jeopardy, but then lie to you that he was lucky to do so.

I could go on & on about my brother.  Nothing I’ve listed should be construed to indicate that something I omitted is not in his wheelhouse.  Further, if my description of him seems random, well, it is.  Because that’s him: the rare person who knows so much about so much that it makes those of us who aren’t so smart (or interesting) wonder “how does he know so much about so many random things?”

But the things that he knows and can do are not why he’s important to me.  Without diving into detail, I’ll leave you with this.

Patrick is my younger brother.  By 18 months.  For his entire life, he’s had my back, unconditionally.  24/7/365. If you have a brother, you know what that means.

I wish I was more like him.  As a person, and as a brother.

My brother is a remarkable person with a fascinating variety of talents, interests, and areas of knowledge.  Everything I’ve shared about him is true.  Yet, there’s no more accurate way to describe him than as the best brother in the world.

Oh, one other thing, Patrick Francis Kennedy was born on February 15.

Happy birthday bro!

Click to access op19-003.pdf