Month: August 2020

Maine, Utah, and Reforming Attorney Regulation.

Michael 3 Comments

Perhaps it’s appropriate that I visited Maine last weekend.

There’s not much I enjoy more than an early morning run followed by a dip in the ocean. In Maine, I was able to do exactly that each morning. In the surf, I’m like my 9-year old self: my attention focused on the horizon, looking for giant ships and the next big breaker to ride to shore.

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What’s that got to do with reforming attorney regulation?

Reform is no longer on the horizon. It’s approaching shore. Whatever the metaphor, I hope that we get on board or ride the wave.

Proponents of regulatory reform argue that the Rules of Professional Conduct impede access to legal services. Three ideas are central to reforming attorney regulation:

  • allowing non-lawyers to provide services that, now, only lawyers are authorized to provide;
  • relaxing the rule that prohibits (a) non-lawyer investment in law firms; (b) sharing profits with non-lawyers; and (c) partnering with non-lawyers; and,
  • relaxing the rule that prohibits lawyers from providing something of value in exchange for referrals.

For an overview of reforming attorney regulation – aka “re-regulation” —  this post from 2Civility is helpful.

Okay Mike, so where’s Utah figure into all of this?

Both on this blog and at CLEs, I’ve expressed frustration with the pace at which the legal profession adapts to change. One of the most-read posts on this blog is this one in which I argued that when it comes to increasing access by authorizing paralegals to provide legal services, we can’t let perfect be the enemy of good.

Which is why I was so excited to learn that last week, the Utah Supreme Court issued Standing Order 15. The order transforms regulatory reform from “talk” to “walk.”

Today, I’m not going to dive into the weeds of the “regulatory sandbox” that the order creates. Rather, I’m going to highlight (1) the changes it makes to the Rules of Professional Conduct; and (2) the reasons that the Utah Supreme Court approved it.

Standing Order 15:

  • allows lawyers to share fees with non-lawyers;
  • allows lawyers to practice in entities that are owned or managed by non-lawyers; and,
  • repeals the rule that prohibits sharing fees with lawyers in other firms.

In addition, but a topic for another day, Standing Order 15 significantly streamlines the lawyer advertising rules.  

Why adopt such significant changes?  Here’s the press release in which the Court announced that it had adopted the order.  It includes the following paragraph:

  • “Justice Deno Himonas who, along with John Lund, past-President of the Utah Bar, led the effort, summed up the need for innovative solutions in the face of America’s access-to-justice crisis as follows, ‘We cannot volunteer ourselves across the access-to-justice gap. We have spent billions of dollars trying this approach. It hasn’t worked. And hammering away at the problem with the same tools is Einstein’s very definition of insanity. What is needed is a market-based approach that simultaneously respects and protects consumer needs. That is the power and beauty of the Supreme Court’s rule changes and the legal regulatory sandbox.’ Now, under the leadership of the Supreme Court and the Bar Commission, which will have an important role in the Innovation Office, Utah will be the first state in the nation to lay the foundation for a truly accessible and affordable, consumer-oriented legal services system.”

This morning, Justice Himonas and John Lund agreed to meet with me virtually to record an interview that will focus on Standing Order 15, Utah’s new regulatory sandbox, and regulatory reform in general.  I will post it as soon as it’s finished.

This is not the last I’ll broach this topic.  Since June, Justice Cohen and I have been participating in a series of seminars put on by the IAALS Unlocking Legal Regulation Project. We’re learning about the very changes that Utah adopted.  By the end of the year, we anticipate being ready to start a more in-depth discussion here in Vermont. 

Stay tuned.

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Additional Information on Utah Standing Order 15

Related Posts from this blog

Monday Morning Answers #209

Michael 1 Comment

Welcome to a new week. What a difference 72 hours makes!

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

Honor Roll

Answers

Question 1

Which of the 7 C’s of Legal Ethics includes both wellness and understanding the risks & benefits of relevant technology?

Perhaps a poorly phrased question as I was hurrying to get to the beach. Here, I was thinking “competence.”  V.R.Pr.C. 1.1 sets out the duty.  Comment [8] advises lawyers that the duty includes keeping up-to-date on the risks and benefits of relevant technology, while Comment [9] makes it clear that well-being is an aspect of competence.

Question 2

Lobster and Scallop are neighbors.  Last month, Lobster met with Lawyer to discuss representation in a dispute with Scallop.  Lobster chose not to retain Lawyer.  Now, Scallop wants to retain Lawyer in the same dispute.  Which is most accurate?

  • A.   If Lobster paid Lawyer for the consultation, Lawyer may not represent Scallop.
  • B.   Lawyer may not represent Scallop.
  • C.   Lawyer may represent Scallop.
  • D.   It will depend whether Lobster provided Lawyer with information that could be significantly harmful to Lobster in the dispute.

This is Rule 1.18.  For more on the duties owed to prospective clients, including guidance from a recent ABA Advisory Opinion, see https://vtbarcounsel.wordpress.com/2020/06/11/conflicts-confidences-prospective-clients/this blog post.

Question 3

Attorney called me with an inquiry.  I listened, then replied:

“For it to be okay, 3 things have to happen.  (1) It has to be in proportion to services you render, or, if not, you have to agree to assume joint responsibility for the representation; (2) the client has agree and confirm the agreement in writing; and, (3) the total has to be reasonable.”

What did Attorney call to discuss?

  • A.   a contingent fee agreement.
  • B.   entering into a limited representation agreement.
  • C.   sharing a fee with a lawyer in another firm.  V.R.Pr.C. 1.5(e).
  • D.   settling a malpractice claim with a former client who is not represented by counsel.

Question 4

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 in the matter.

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.  See, V.R.Pr.C. 4.2, Comment [3].
  • D.    Trick Question.  These are the 3 exceptions to the rule.

Question 5

When in Maine . . .

This well-known lawyer’s former clients include Sam Sheppard, Patty Hearst, O.J. Simpson, and the Boston Strangler.  Florida disbarred the lawyer in 2001, with Massachusetts doing the same in 2003.

In 2014, the Maine Supreme Court issued an order denying the lawyer’s application to be admitted in Maine.  Central to the decision was the $2 million in back taxes that the lawyer owed to the federal government.

Name the lawyer.

F. Lee Bailey.  If you’re interested, here’s a fascinating profile that Town & Country Magazine did of Bailey.

 

Five for Friday #209

Michael 2 Comments

Welcome to Friday!

I’m in Maine. With miles to run and waves to conquer, I’ll spend .209 milliseconds on this week’s intro:

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Onto the quiz!

Rules

  •  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 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

Which of the 7 C’s of Legal Ethics includes both wellness and understanding the risks & benefits of relevant technology?

Question 2

Lobster and Scallop are neighbors.  Last month, Lobster met with Lawyer to discuss representation in a dispute with Scallop.  Lobster chose not to retain Lawyer.  Now, Scallop wants to retain Lawyer in the same dispute.  Which is most accurate?

  • A.   If Lobster paid Lawyer for the consultation, Lawyer may not represent Scallop.
  • B.   Lawyer may not represent Scallop.
  • C.   Lawyer may represent Scallop.
  • D.   It will depend whether Lobster provided Lawyer with information that could be significantly harmful to Lobster in the dispute.

Question 3

Attorney called me with an inquiry.  I listened, then replied:

“For it to be okay, 3 things have to happen.  (1) It has to be in proportion to services you render, or, if not, you have to agree to assume joint responsibility for the representation; (2) the client has agree and confirm the agreement in writing; and, (3) the total has to be reasonable.”

What did Attorney call to discuss?

  • A.   a contingent fee agreement.
  • B.   entering into a limited representation agreement.
  • C.   sharing a fee with a lawyer in another firm.
  • D.   settling a malpractice claim with a former client who is not represented by counsel.

Question 4

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 in the matter.

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.  These are the 3 exceptions to the rule.

Question 5

When in Maine . . .

This well-known lawyer’s former clients include Sam Sheppard, Patty Hearst, O.J. Simpson, and the Boston Strangler.  Florida disbarred the lawyer in 2001, with Massachusetts doing the same in 2003.

In 2014, the Maine Supreme Court issued an order denying the lawyer’s application to be admitted in Maine.  Central to the decision was the $2 million in back taxes that the lawyer owed to the federal government.

Name the lawyer.

 

Attorney Justin Kolber Creates The Iron Llama Triathlon for National Suicide Prevention.

Michael

Justin Kolber is a Vermont attorney who has long believed in wellness, well-being, and work-life balance.  On Saturday, Justin will take on a personal challenge to benefit others’ wellness: the Iron Llama Triathlon for National Suicide Prevention.

  • Aside: since 2014, at least 6 licensed & active Vermont lawyers have taken their own lives. Data indicates that, in any given year, 108 licensed & active Vermont lawyers have serious thoughts of suicide. The National Suicide Prevention Lifeline is 1-800-273-8255.

Odds are you’ve never heard of the Iron Llama.  Saturday’s will be the first.  And, Justin isn’t an ordinary participant.  Rather, the event is Justin’s brainchild, conceived earlier this year in response to a friend’s suicide and the pandemic’s cancellation of in-person events. The Iron Llama is based at Lake Elmore, a beautiful setting to get out to support Justin.  He’s even arranged to have some of Elmore’s famed Fire Tower Pizza available!

I could go on, but I’ll let Justin tell you more.  Yesterday, he was kind enough to (virtually) stop by the Garage Bar to talk about the Iron Llama and attorney wellness.  You can watch or listen below.  Links with even more information about the Iron Llama, attorney suicide, and suicide prevention follow the video link of my conversation with Justin.

Thank you, Justin!

Information & Related Posts:

Other Wellness Wednesday Posts

Wellness Wednesday: Finding the Starting Line.

Michael 1 Comment

I’ve been blogging and speaking about attorney wellness for years. A smattering of the posts appears at the end of this column.

wellness

Initially, there was resistance.  Thankfully, we’ve reached a point where most lawyers recognize and accept that wellness is an aspect of competence. Indeed, last summer – a time that feels decades ago – the Vermont Supreme Court adopted Comment 9 to V.R.Pr.C. 1.1:

  • “[9] A lawyer’s mental, emotional, and physical well-being may impact the lawyer’s ability to represent clients and to make responsible choices in the practice of law. Maintaining the mental, emotional, and physical well-being necessary for the representation of a client is an important aspect of maintaining competence to practice law.”

Then, on February 10 of this year – a time that feels longer ago than last summer – the Court abrogated and replaced the Rules for Mandatory Continuing Legal Education.  Among other things, the new rules require lawyers to obtain at least 1 hour Wellness CLE per reporting cycle.

A question that’s not uncommon: “Mike, where do I start?”

An answer that tempts me: “Damned if I know. But once you find out, share! I could use a good starting point!”

I’d say I’m half-kidding . . .

Actually, there are resources. For instance, I’ve long been a fan of both the ABA Well-Being Toolkit for Lawyers & Legal Employers and the ABA Well-Being Toolkit in a Nutshell.  Then, last week, the ABA Journal posted 10 Steps to identify irrational resistance to self-care.  It’s by Rosario Lozada.

I think it’s a great place to start.  Mainly because Professor Lozada points out that the starting line might not be where we think it is.  That is, self-care doesn’t necessarily begin with self-care. Rather, the beginning is to identify whether – and why – we’re reluctant or resistant to starting.

Professor Lozada shares 10 tips to identify the status of our own relationship with self-care.  The tips are not designed to “fix” anything.  Rather:

“For now, see whether you can appreciate yourself for taking these precious moments to open up to your needs and to care for yourself.

“And the next time you pull up your calendar or another to-do list, add a specific self-care duty. Pick an activity that renews and energizes you; make it a recurring, high-priority event. You may have just engaged in a courageous act of ‘self-preservation.’”

I wish each of us the courage to help ourselves

Other Wellness Wednesday Posts

 

Upcoming Court Closures in Addison, Bennington, Chittenden, Rutland & Environmental Division.

Michael

On Friday, Tari Scott, the Judiciary’s Chief of Trial Court Operations, issued this important scheduling notice about court operations in the Addision, Bennington, Chittenden and Rutland trial courts, as well as in the Enviormental Division.  For those of you who are click averse, I’m pasting in the full text:

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Important Notice about Court Operations During Phase III Odyssey Roll Out
in the Addison, Bennington, Chittenden, and Rutland Trial Courts and Environmental Division

In preparation for the Phase III Odyssey roll out, the Addison, Bennington, Chittenden, and Rutland trial courts and the Environmental Division will be closed to the public on several dates during the months of August and September. Below is a schedule of court closures and information about court operationsduring these dates.

The courts will be closed according to the following schedule:

  • All courts in these units will be closed from Monday August 31st through Monday September 7th. Operations will resume on Tuesday September 8th.
  • Addison Criminal, Probate, and Family will be closed Friday August 7th, Friday August 14th, Thursday August 20th, and Friday August 28th.
  • Addison Civil will be closed Friday August 7th, Friday August 14th and Thursday August 20th.
  • Bennington Civil and Probate will be closed Friday August 7th, Friday August 14th, Friday August 21st, and Friday August 28th.
  • Bennington Criminal and Family will be closed Tuesday August 11th, Thursday August 20th, and Tuesday August 25th.
  • Chittenden Unit will be closed Friday August 14th, Friday August 21st, and Friday August 28th.
  • Rutland Civil and Probate will be closed Friday August 14th, Thursday August 20th, and Thursday August 27th.
  • Rutland Criminal will be closed Thursday August 13th, Friday August 21st, and Friday August 28th.
  • Rutland Family will be closed Wednesday August 12th, Tuesday August 18th, and Tuesday August 25th.
  • Environmental Division will be closed Friday August 21st and Thursday August 27th.

Court users should know that on these dates:

  • Units will only hold emergency hearings. This includes criminal lodgings, relief from abuse cases, stalking cases, juvenile emergency custodial orders and mental health emergencies.
  • Judges from other units or retired judges may sit on these emergency hearings remotely.
  • Any non-emergency hearings currently scheduled for this period will be rescheduled.
  • Individuals can still call or email the courts, though some calls will be directed to the Information Center first.
  • Individuals can still deposit paperwork at the courts’ drop boxes and pick up court forms at court entrances.

The Phase III roll out encompasses staff and courts from seven buildings across four counties. Court staff, finance staff, and RIS staff will be managing data conversion, performing manual data entry, and scanning paper files into Odyssey. This dedicated time is essential to ensure a successful transition onto the new case management system. We appreciate your patience and consideration during this time.

Tari Scott
Chief of Trial Court Operations
Theresa.scott@vermont.gov

*****

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Contingent Fee: $18,500 per hour?

Michael 1 Comment

I continue to struggle to find the motivation to blog.  My malaise bugs me.  Rather than dwell on it, this morning I decided to rid myself of it.  My plan is simple: find an interesting story and figure out a way to tie it Vermont legal ethics and write about them.  Then, do it again a few days later. So, here goes.

Earlier this week, the ABA Journal posted Quinn Emanuel seeks fee amounting to $18,500 per hour; will judge approve it?  Quinn Emanuel is a law firm.  The firm represented a class of health care insurers that sued the federal government.  Bloomberg Law posted the firm’s motion to have its fee approved.  The motion’s introductory paragraph sets the stage better than I can:

  • “In February 2016, Quinn Emanuel became the first firm in the nation to file a lawsuit on behalf of a Qualified Health Plan issuer against the federal government alleging that the government improperly failed to make risk corridor payments in violation of Section 1342 of the Affordable Care Act. Four years later, following round after round of fierce litigation and a loss at the Federal Circuit, eight justices of the Supreme Court adopted the exact legal theory Quinn Emanuel set forth in the initial Health Republic complaint and which it advocated at every step, including in the parallel cases that eventually made their way to the Supreme Court. The result? An entire industry was able to collect three years’ worth of unpaid risk corridors amounts they had previously been forced to write off as a total loss—approximately $12 billion. Nearly $4 billion of that recovery will go to the class members in these class actions.”

Cutting to the chase, years ago, the firm notified class members that it would ask a court to approve a fee equal to 5% of any recovery.  Here, 5% of $3.7 billion is $185 million. Per the ABA Journal, that “translates to a whopping hourly fee of about $18,500.”

It’s not my point today to comment on the Quinn Emanuel case.  Rather, I’m using it as click bait to provide a refresher on contingent fee agreements.

Rule 1.5(a) prohibits lawyers from agreeing to, charging, or collecting unreasonable fees and expenses.  Contingent fees, and expenses in contingent fee cases, are subject to the rule.

A contingent fee agreement MUST be in a writing that is signed by the client.  In Vermont, the failure to reduce a contingent fee in writing has resulted in lawyers being reprimanded and admonished.  Tip: do this at the outset of the representation.

In addition, Rule 1.5(c) states that a contingent fee agreement MUST:

  • state the method by which the fee is to be determined, including:
    • the percentage that will accrue to the lawyer in the event of settlement, trial, or appeal;
    • the litigation & other expenses that will be deducted from any recovery; and,
    • whether such expenses will be deducted before or after the contingent fee is calculated.
  • clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party.

Upon the conclusion of a contingent fee matter, a lawyer:

  • MUST provide the client with a written statement showing the outcome of the matter and, if there is a recovery, the remittance to the client and the method by which it was determined.

Lawyers are NOT allowed to agree to, charge, or collect:

  • a contingent fee in a criminal case;
  • a fee that is contingent upon the securing of a divorce; or,
  • a fee that is contingent upon the amount of spousal maintenance or support, or property settlement in lieu thereof, in a domestic relations matter.

However, lawyers may use contingent fees in domestic relations matters that involve the collection of:

  • spousal maintenance or support due AFTER a final judgment has been entered; or,
  • child support and maintenance arrearages due AFTER a final judgment has been entered, provided that the court approves the reasonableness of the fee agreement.

In other words, contingent fees are okay in some POST-JUDGMENT divorce & custody matters.

Finally, two cautionary tales.

First, in this post, I referenced a case in which a contingent fee agreement called for a firm to receive 40% of any recovery.  It also included this provision:

  • “Should [Client] refuse to make any settlement which my attorneys advise me is reasonable and should be taken, then I understand that I am responsible for their fee on the basis of that offer, unless they waive this provision.”

Sure enough, the client rejected a settlement offer that the firm advised the client to accept. The firm withdrew and, pursuant to the clause, sought its fee. The Tennessee Supreme Court publicly reprimanded the lawyers, concluding that the settlement provision chilled the client’s right to decide whether to settle.

Second, the failure to reduce to a fee agreement to writing can result in more than a disciplinary sanction.  As the ABA Journal reported here – in a case in which the client was Johnny Depp – a contract for attorney’s fees can be voided if not reduced to writing.

I’ve blogged.  With that weight lifted, off to do what I never lack the motivation to do: get some miles in on a sunny day.  Enjoy the weekend!

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