Five for Friday #212

I hesitate to share my votes. Doing so seems to put relationships at risk. And you, my readers, are a relationship I’d rather not risk.  Alas, if I don’t stand for something, I’ll fall for anything.

Don’t shame me for my choices. I like what I like. You might like something else.  That’s fine. We can still get along. 

So, without further ado, my 2020 Halloween Candy Power Rankings:

Note: movie theater candies were not eligible for consideration.  Otherwise, this post would’ve consisted of two words: Sno Caps.  Toughest omissions: 100 Grand and Butterfinger

I feel like my rankings don’t need explanation. Good taste is obvious. But I suppose every voter feels that way.  So, I’ll explain my choices.  Unlike real life, I’m here to advocate for my preferences, not to yell at you about why not to vote for others.  In reverse order:

• 5.  Kit Kat. Is there anything better? Well, yes, the next four on this list. Still, I feel like Kit Kat is sneaky underrated. Especially given the fact that it played such a crucial role in an episode of The Office. The crunch of those layers? Perfection! Oh, and if you eat them without breaking off a piece of that Kit Kat bar? You should be disbarred from whatever job you have.  Tip: freeze before eating.
• 4.  Junior Mints. A stunningly refreshing combination of mint and chocolate. If you think these are only a movie candy, I’ll fight you. The tiny Halloween box is a perfect first date: it satisfies you, but leaves you wanting more.  Oh, and having pointed out Kit Kat’s relevance to The Office, I’d be remiss not to remind you of Junior Mints’ appearance in Seinfeld.
• 3.  Krackel. I feel like this will be controversial. I love Krackel. It’s a better version of Kit Kat.  Probably could be #1, but is it available in a regular size throughout the year?  In the fall, my mom buys those grab bags that include a variety of tiny Hershey’s, Mr. Good Bar, something else, and Krackel.  When she puts them out, I treat the Krackels like they’re the chocolate munchkins in a box of 25 mixed.  Literally, the best candy that I’ve never had but in its miniature Halloween version. 
• 2.  Reese’s Peanut Butter Cups. In Hannaford’s the other day, I saw a 6 pack! For those of you who grew up more recently than I, back in the days of less excess than now, only 2 peanut butter cups came per package. Oh, the humanity!! Peanut Butter Cups are the second-best food combination ever created.* You will be summarily disbarred if I learn that you aren’t freezing your peanut butter cups.
• 1.  *Peanut M&M’s. Have you ever been asked “if you could only have one food the rest of your life, what would it be?” I have. Recently. Such are the questions that arise in the Garage Bar. Last weekend, I answered “Peanut M&Ms.”   In Anna Karenina, published in 1878, Tolstoy wrote, “If you look for perfection, you’ll never be content.”  Leo, stop looking! It’s not your fault that Peanut M&M’s weren’t mass marketed until 1954! Collectively, have we garnered more contentment from, or witnessed anything more perfect than, Mars’ polyamorous marriage of a nut, a thin layer of chocolate, and a brightly colored and refreshingly crisp candy shell?

Nyet!

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 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

 It is not uncommon for me to receive an inquiry in which a lawyer asks about the information that can be included in a particular type of motion.  For example: “Mike, I’m thinking of filing a motion __  _______________, but I don’t want to disclose any confidences.”

Typically, I reply with something like: “I think it’s best to cite to whichever paragraph of the rule applies. Then, if asked for more by the court, answer, but only by providing the information necessary to respond to the court’s specific question. The motion doesn’t give you license to start blabbing about the client.”

What type of motion is most often the subject of the inquiry outlined above?

• A.  To disqualify opposing counsel.
• B.  To have the client’s competency evaluated.
• C.  To withdraw.
• D.  To recuse the judge.

Question 2

The trust account rules require lawyers to reconcile trust accounts:

•  A.  Timely, with “timely” being no less than monthly
•  B.  Every other month
•  C.  As often as required by generally accepted accounting principles.
•  D.  The rules are silent. But the Vermont Supreme Court has held that trust accounts must be reconciled no less than quarterly.

Question 3

Lawyer represented Client.  Once the representation ended, Client gave Lawyer a gift.  Which is most accurate?

• A.  Lawyer must not accept the gift
• B.  Lawyer may accept the gift, but only if Lawyer handled the matter pro bono
• C.  Lawyer may accept the gift, especially if it’s a simple gift such as a holiday present or token of the client’s appreciation.
• D.  Mike, objection.  The premise of this question is pure fantasy.

Question 4

Which is in a different rule than the others?

•  A.  Same or substantially related matter.
•  B.  Materially adverse interests.
•  C.  Informed consent, confirmed in writing.
• D.  Remonstrate with the client and, if necessary, take reasonable remedial measures.

Question 5

 At seminars and in blog posts, I often talk about the duty of competence insofar as it relates to the preservation and production of a client’s electronically stored information.

Earlier this week, a New York judge issued a ruling in Parlux v. Carter.  The judge concluded that the defendant, Shaun Carter, had improperly destroyed emails relevant to the case and, therefore, that if the case goes to trial, the jury will be instructed that it can draw an adverse inference from the fact that the emails are missing.

While sued under his legal name, Carter, a world-famous musician and mogul, is better known by his stage name.  I’ve previously mentioned him in this blog, noting that one of his most iconic songs has been described as “a hornbook on the 4^th Amendment.”  To wit, the second verse’s lessons on traffic stops, vehicle searches, racial profiling, and probable cause.

Indeed, in the civil case, the missing emails have quickly risen to the top of the list of Carter’s problems.

Who is Carter better known as?

Ethics of law firm names? The story of the Legal Genius.

Today’s question: is it possible to prove that a  self-proclaimed “legal genius” is not?

Before, I explain why I’m asking, I’ll share some background — if only to lend a modicum of educational value to a story surely bound to appear in a Was That Wrong? post.

It’s rare that I receive an inquiry or disciplinary complaint about the name of a law firm.  More broadly, I don’t recall the last of either that involved an attorney advertisement.  As such, I don’t often blog about the advertising rules.

I’m not a huge fan of the advertising rules.  I’ll never forget a CLE that I presented at a VBA meeting that took place at one of the state’s ski areas.  It was 2005 or 2006.  A few miles from the resort I passed a restaurant. Here’s what its sign said:

“World’s Best Breakfast!”

I’ll get back to the restuarant in a moment.

Anyhow, whether I’m fan is irrelevant.  Vermont’s lawyer advertising rules exist.  Here’s what we know:

A lawyer runs afoul of V.R.Pr.C. 7.5(a) by using firm name that violates V.R.Pr.C. 7.1.  In turn, V.R.Pr.C. 7.1 prohibits a lawyer from making “a false or misleading communication about the lawyer or the lawyer’s services.”  The comments to Rule 7.1 include examples of statements that are inherently misleading, as well as of the types of omissions that make otherwise truthful statements misleading.

As applied, it’s unethical for a lawyer or law firm to use advertisements that (a) include unsubstantiated comparisons to the quality of legal services provided by others; or (b) create unjustified expectations as to the results the lawyer can achieve.  Thus, lawyers have been sanctioned for advertising as “the experts in” specified types of law, as well as for referring to themselves as a county’s “premier” firm in a particular practice area.

I’m left to wonder whether the restaurant on the mountain, in fact, serves the world’s best breakfast and whether anyone who has ever eaten there  left feeling otherwise.

Which brings me back to the question posed at the beginning.

LegalGenius is a law firm in Michigan. I don’t know what Michigan’s advertising rules are, nor do I know whether the lawyer who owns the firm is a legal genius.  Frankly, that seems to be the least of the lawyer’s concerns these days.

Last week, the lawyer who owns Legal Genius pled guilty to conspiring to defraud the IRS and to steal.  The DOJ announced the plea in this press release.  Outlets reporting the story include the ABA Journal, Forbes, and WXYZ Detroit.  The lawyer and co-conspirators were alleged to have stolen non-public traffic accident reports and to have used them to solicit clients.  The lawyer was also alleged to have moved firm income to his personal bank account as part of attempt to “obstruct and impede” and IRS investigation.

I’m always looking for ways to make my CLE presentations more interesting. I suspect we could have a robust moot court as to whether the lawyer’s issues with the criminal law support an allegation that the firm name – Legal Genius – is false or misleading.

Remembering Joan

I’m not positive, but I think I’m doing a CLE for the Joan Loring Wing Inn of Court today.  As of this moment, however, there’s a non-zero possibility that I entered into my calendar a CLE that was proposed but not finalized.  With “non-zero” being “greater than 50%,” further evidence of my lack of competence.  I guess I’ll find out at noon.

Anyhow, I will never turn down a request to present to the Joan Loring Wing Inn of Court. No lawyer did more for me or my career than Joan. The fact that I’m far from the only lawyer who can say that is further testament to Joan.  I might not remember my schedule, but I will never forget Joan.

In Joan’s memory, and in honor of a day that I may or may not be presenting to the group that bears her name, I’m re-posting a blog that I published about her last year.  It’s here, and it’s pasted in below.

********

Attorney Wellness is a big tent.  A lot fits underneath:

Lawyer assistance programs.  Helping colleagues in need.  Mentoring attorneys. The connection between wellness and civility.  Making time for what matters: family, friends, interests outside the law.

Of all that’s under the tent, nobody did them better than Joan Loring Wing.

Many of you knew Joan.  For those who did not, she was a titan of the Vermont legal community.  A figurative Giant.  All the good we’ve done on attorney wellness over the past few years?  It’s not as much us as it is that Joan lifted us up, put us on her shoulders, and showed us the way.

I knew Joan well.  She was on the Professional Conduct Board when I was hired as deputy disciplinary counsel in 1998.  To the extent that wellness includes having a job and being involved in the profession, Joan is why I’m well.

In 2000, it looked like my job would be cut.  Joan made sure it wasn’t.  I’m still here and, honestly, do not want to imagine how my career would’ve turned out if she hadn’t intervened.

In 2009, Liz Miller asked me to the run for a seat on the Vermont Bar Association’s Board of Managers.  Waffling, I turned to Joan for guidance.  As had her father and grandfather, Joan had served on the Board and become President.  She told me it’d be the best experience of my professional life.  Then, to make sure I didn’t chicken out, she showed up to the voting meeting and gave a speech nominating me. I remain convinced that many who voted for me did so only because Joan vouched for me.

Joan was right about the Board experience.  As with my day job, I don’t like to think how my career would’ve turned out had she not convinced me to run.

Tonight, I’m speaking at the meeting of the Joan Loring Wing Inn of Court.  About a week ago, I decided to mark the occasion by making today’s post about Joan.

Thinking about Joan and “wellness” can be funny.

• She smoked constantly.  Even in her office.  I remember many a meeting having to look thru Lark smoke to see her across the desk.
• She drank a ton of soda.  She brought a little cooler full of cans of Coke to every meeting or event that I remember.  Then asked the serving staff to bring her a cup of ice.
• The soda chased the Cheetos and Thin Mints that she brought along with it.

Cigarettes & junk food.  And from what I recall, her work days began in the middle of the night.  But Joan would be at the forefront of Attorney Wellness.  How do I know?  Because she was all about Attorney Wellness even before it was a thing.

Joan died in a car accident on December 8, 2009.  Two days later, the Supreme Court held a swearing-in ceremony for new lawyers.  Chief Justice Reiber spoke.  He dedicated his words to Joan. The VBA Journal printed his speech here,  It tells the story of Joan, and what she meant to Vermont, far better than I can.

So can others.  In anticipation of this blog, I asked several who knew her to share thoughts on Joan and how she’d view the “attorney wellness” phenomenon.  Here are some responses:

• “Joan knew the benefits of social interaction, positive mentoring, and just plain support to the profession.  No matter the age, nor level of experience of the lawyer, she was always willing to provide unbiased and meaningful advice.    She promoted wellness among the bench and bar by encouraging personal best behaviors and openness for constructive criticism.    Joan knew that small gestures which invoked humor where absolutely necessary for the practice:  always having “settle” and “pay” M& Ms at mediation would bring some comedic relief to an otherwise stressful situation for both the parties and the lawyers.   While her methods of practicing “wellness” were non-traditional, they were effective to promote the best version of ourselves as lawyers, and deal with the stressors that come with an active practice.”  Attorney Bonnie Badgewick

• “Joan Wing was like a sister to me.  I can hear her now delivering some irreverent tongue-in-cheek comment about what the legal profession was coming to if it actually needed to focus on ‘wellness’ and on teaching ourselves how to take care of ourselves.  But if someone were not well and she found out about it, she would have been one of the first to respond.  While never taking herself too seriously, she manifested for all of us a caring attitude toward her fellow attorneys, which in and of itself helped promote our collective wellness.” Honorable Peter Hall, United States Circuit Judge, Court of Appeals for the Second Circuit.

• “You know for Joanie I think over all the years when she served as a leader in so many capacities, what she did and what she said was never about her. Her efforts were not designed to invite praise or attention to herself. I think the motivation was to push us all to be our best selves, not for our self-interest but for the betterment of the whole. The notion that we in the bar need to look after our own mental health and support our friends and colleagues, seems to me to be very much in concert with Joan’s strong sense of duty. Like her father who escaped a German prisoner of war camp in the winter in bare feet, Joanie was tough, with a single-minded devotion to the common good. I will never forget the moment I learned of her death. Through her memory she continues to be an inspiration.” Honorable Paul Reiber, Chief Justice, Vermont Supreme Court.

• “She absolutely would have been on board with wellness, as long as there was no mandatory smoking cessation program. The first thing Joanie ever said to me was ‘well, are you a shrinking violet or what?’  I told her ‘or what.’  She always made sure to reach out to young women starting out in the RCBA to make sure we were introduced to our fellow RCBA lawyers and to make sure we knew that we weren’t alone in our experiences and could tap into the resources of those who had been there before us.  I am so thankful to her for helping me meet people and making me feel supported as a young lawyer starting out in Rutland County.  She was an endless source of historical information and quick wit, and I feel incredibly lucky to have known her.” Attorney Erin Gilmore.

• “As to wellness, I agree, she would be on board. Her heart was open as a shrine, and anyone could walk in and be welcomed.  A particular wellness initiative on the part of her and her family: ARC (Advocacy, Resources, Community). She had a special-needs brother who was beloved by his family — the original spark for ARC, which she supported throughout the years. On a personal wellness note, I was phobic about snakes, and eventually went through a course of exposure therapy to overcome my fear. When I finished, Joan was so pleased that she gave me an extraordinarily beautiful Venetian glass pendant in the shape of a snake. She supported my efforts and cheered my triumph.” Attorney Lisa Chalidze.

• “One thing she told me when there were some issues at my firm was something akin to, ‘No matter how much work you have put into this profession, nobody can prevent what someone else might choose to do to you. Sometimes it is healthier to just walk away.  Being a lawyer is not more important than being healthy.’”  Matt Valerio, Vermont Defender General.

• “I know she was definitely on board with wellness. I remember on a few different occasions her bringing some folks into the office (or she would go to them), who she was trying to help without posting their troubles for the whole world to see but at the same time letting them know that they needed to get their **together! She was sympathetic but also wasn’t afraid to tell them what was unacceptable. Thank you for keeping her spirit alive, I still miss her each and every day.” Karen Poljacik, Joan’s long-time employee.

• “Joan epitomized wellness, because she made everyone who encountered her feel great. It was impossible to feel stressed or anxious around Joan. You’d either be laughing too hard, or you’d be marveling at whatever her insight was about the topic of the day.  Plus, you knew that Joan would be the first to help any lawyer in need.  She was a lawyer’s assistance program before we had lawyer’s assistance programs!” Teri Corsones, Executive Director, Vermont Bar Association.

• “And now we have this attempt to link Joan Loring Wing to ‘wellness’.  Another well-intentioned gesture to connect a cause to a person who did much to distance herself from it.  From the Classic Cokes she snuck into restaurants in her giant purse to the Larks that she and Harold Berger smoked with abandon in her office ‘back in the day’, Joan was the epitome of an unhealthy lifestyle.  Salt and Cheezypoofs were two of her main food groups and she even co-opted M&M’s into her mediation practice with her famously inscribed ‘settle’ and ‘pay’ candies.   But just as [her father] settled hundreds of cases in his own gruff style so did Joan encourage the big picture of ‘Wellness’ in her care for her fellow lawyers and her attitude towards life itself.   If Wellness means embracing life and living it to its fullest without concern for judgment and constraints, then mark Joan down as very well indeed.  Joan may have been a terrible patient but a great friend to all who had the privilege of knowing her.  Her concern for the wellbeing of the attorneys around her was legendary and that should surely entitle her to be enshrined in the Wellness hall of fame.”  Honorable Karl Anderson, Probate Judge, Rutland County.

Attorney Wellness is about improving the profession’s health.  Joan devoted herself to doing so.  May her star never fade from our collective memory or her example from our collective conduct.

I’ll leave you with words from my good friend Eric Johnson, another attorney who knew Joan.  Hootie captures how Joan would remind us to move forward:

• “Joan was one of the best people I have ever known.  She was appropriately old school, with a wicked sense of humor and a ton of common sense.  She gave a lot of her time and of herself to help others, both within and outside of the Vermont Bar.  It has been nearly ten years since we lost Joanie, and I still miss her.  I keep the card from her funeral in my office, which reads:

Grieve not…
nor speak of me with tears…
but talk of me…
as though I were beside you.
I loved you so…

. .  .’twas Heaven here with you.”

Indeed it was.

Wellness Wednesday: Start now.

My hamstring went on October 4.  It did so because my brain had just sprained itself and, as a result, decided that it’d be a good idea to have the rest of my body run the final 4 miles of a 14-mile run at speed even though I’d raced a 5K the day before.  I haven’t run much since.

The reason I haven’t run much is because my brain remains sprained.  I know what I need to do to run again: rest.  I haven’t.  Instead, I’ve biked, walked, and even tried to run.  As a result, my hamstring hasn’t healed.  What’s especially maddening is that had I rested – something I KNEW I should do – I’d likely be back out there.

And that’s today’s wellness point: everyone reading this post knows what they need to do to improve their wellness.  The trick is doing it.

As usual, today’s message is not a product of my own. Rather, it’s inspired by Jeena Cho’s recent post in the ABA Journal.   In the post, Attorney Cho shares strategies to train our brains “to locate the positive instead of always focusing on the negative.”  One of the strategies refers to the so-called “G.I. Joe fallacy” and the idea that “having the knowledge of a desired action is not enough to make it happen or to get the desired benefit.”  Cho writes:

“I’ll often work with lawyers who know all the activities they should engage in to increase their well-being and happiness: get more exercise, eat more vegetables, practice meditation, get more sleep. However, they don’t actually prioritize and do the things they know are good for them.

“My advice is this: Start by asking yourself why increasing happiness and boosting your well-being is important. Next, commit to doing just one of the practices daily for at least 21 days. Doing something for only two minutes a day might feel too easy, but keep it simple. Remember, it’s not the duration but the compounding effects of a daily practice that matters.”

The moment my hamstring popped I knew what to do: rest.  I didn’t.  I consciously chose not to prioritize something that I knew was good for me.  As Cho notes, we do the same with wellness.  We know that we need to build time for non-lawyerly activities into our days.  But we don’t.

It’s time to start. 

Find a few minutes each day to do something that will make you happier, healthier, and more productive.  As I should have with my hamstring, you might consider doing nothing.  Prioritizing doing nothing – even for just 3 minutes a day – could be exactly what’s needed to kickstart your wellness.

Make wellness a habit.  And remember: no matter the habit, there was a first time.  Today could be yours.

PS – in 2010, my other hamstring cramped at Mile 18 of the Vermont City Marathon, right in front of one of my high school football teammate’s houses.  He made sure to document the occasion:

 

Related Posts:

• Wellness Wednesday: Slow Down
• Wellness Wednesday: Be Kind to Lawyers

• Civility Matters. Especially Now.
• Coping with COVID-19 Related Stress & Anxiety
• Wellness Wednesday: Unplug
• Well-Being is an Aspect of Competence
• Wellness Wednesday: Survival Skills
• Wellness Wednesday: Make time for what (and who) matters
• Wellness Wednesday: Risk & Response  (this one is about the report I mentioned from the Virginia State Bar)
• Do summer your way
• Wellness Wednesday: Meet Alison, Shireen, Samantha, and Alison
• Reach Out, Check In
• Wellness Wednesday: Mentor Someone
• Wellness Wednesday: Joan Loring Wing
• Wellness Wednesday: Law Day & Pro Bono
• Get your sleep
• Take a Chance on Being Nice
• Attorney Wellness: We’ve Only Just Begun
• Be Kind to a Lawyer Today
• Be Nice to Someone Today
• Wellness v. Well-Being
• Wellness Wednesday: Meet Molly Gray
• Wellness Wednesday: Judge Garland & My Cousin Vinny
• Shakespeare, Pink Floyd and Wellness
• Wellness Wednesday: You are not an impostor
• Wellness Wednesday: “N O” is “O K”
• Wellness Wednesday: Stop it!
• Wellness Wednesday: Meet Jeff Messina
• Lawyers Helping Lawyers
• Lawyers Helping Lawyers Part 2
• Lawyers Helping Lawyers: Keep it on the front burner
• Lawyer Well-Being: a call to action
• Anxiety, Stress & Work-Life Balance for Lawyers
• Make time for what matters
• Lawyer Wellness: resolve to find 6 minutes for yourself
• 108 is way too many
• Workplace Happiness
• HELP: Resources on addiction and mental health
• Make Wellness a Habit
• A pledge by legal employers to focus on lawyer well-being
• Legal Ethics & the Water Cooler
• Wellness Wednesday: Island Vines
• Wellness Wednesday: on ponds, puffery and paltering
• Wellness Wednesday: Neil Diamond, the Lock Screen, and National Mental Health Day for Law Students
• Wellness Wednesday: Meet Jennifer O’Connor
• Wellness Wednesday: The Heady Trotter 4 Miler
• Wellness Wednesday:  Judge McCaffrey
• Wellness Wednesday: Family Time
• Wellness Wednesday: Enough
• Wellness Wednesday: Meet Heather Moreau

Monday Morning Answers #211

Welcome to Monday.

Friday’s questions are here.  The answer’s follow today’s honor roll.

Honor Roll

• Karen Allen, Esq
• Matthew Anderson, Pratt Vreeland Kennelly & White
• Evan Barquist, Montroll Backus & Oettinger
• Alberto Bernabe, Professor, John Marshall Law School
• Erin Gilmore, Ryan Smith & Carbine
• Bob Grundstein, Esq.
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• John Leddy, McNeil, Leddy, & Sheahan
• Mick Leddy, McNeil Leddy & Sheahan
• Pam Loginsky, Washington Association of Prosecuting Attorneys
• 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.
• Jonathan Teller-Elsberg,  Carter, Scott & McGee
• Kelly Welsh, Welsh Law
• Thomas Wilkinson, Jr., Cozen O’Connor

 Answers 

Question 1

 I often speak and blog about the 7 C’s of Legal Ethics.  Indeed, I mentioned “competence” above and the 7 Cs were the subject of the first video I uploaded during the pandemic.  Anyhow, here’s a phrase that appears in one of the Rules of Professional Conduct. To which of the 7 C’s does the rule refer?

• “information relating to the representation, no matter the source.”

Confidentiality.  Per V.R.Pr.C. 1.6(a), a lawyer shall not reveal information relating to the representation of the client.  Comment [3] makes clear that duty of confidentiality is broader than the attorney-client privilege and applies to all information relating to the representation, no matter the source.

Question 2

Red met with Lawyer to discuss potential representation in Red v. Blue. Red chose not retain Lawyer. Now, Blue wants to hire Lawyer.   Under the rules, a factor that Lawyer must consider in deciding whether to represent Blue is whether:

• A.  During the consult with Red, Lawyer learned information that could be significantly harmful to Red.  
• B.  Red is likely to proceed pro se instead of finding another attorney.
• C.  Trick question – there are no circumstances under which Red can ethically represent Blue.
• D.  Trick question – since Red did not retain Lawyer, Lawyer may absolutely represent Blue.

This is the ”prospective client” scenario.  V.R.Pr.C. 1.18 applies.  A “prospective client” is one who, in good faith, meets with a lawyer to discuss potential representation, but does not retain the lawyer.  The lawyer’s duty of confidentiality applies as if the prospective client retained the lawyer. However, the lawyer’s duty of loyalty is relaxed.  If the lawyer did not receive information that could be “significantly harmful” to the prospective client, the lawyer may represent someone whose interests are adverse to prospective client’s in the same matter that was the subject of the consult.

Question 3

Rule 1.4 requires a lawyer to communicate to a client sufficient information to make adequately informed decisions about the representation.   Some have argued that the duty includes informing the client (a) that the lawyer doesn’t have ________________; or (b) if ____________ lapses during the representation. The Professional Responsibility Board and the Vermont Bar Association recently agreed to form a committee to study the issue.

Which most accurately fills in the blank?

•  A.  a trust account.
•  B.  a succession plan.
•  C.  malpractice/professional liability insurance.
• D.  a law license.

 Question 4

 Law Firm is short on cash.   Investor offers to provide cash in exchange for an ownership interest in the firm.   May the lawyers at Law Firm agree to the offer?

• A.  Yes, if Investor doesn’t direct the lawyers’ professional judgment.
• B.  Yes, if Investor’s name is not added to the firm name.
• C.  A & B.
• D.  No.

Many consider the prohibition on non-lawyer ownership and investment in law firms to impede access to justice.  For more, see this blog post.

Question 5

 Speaking of award winners . . .

. . . This is fictional attorney Kim Wexler.  She’s in a tv show.

Earlier this year, the show released a series of YouTube videos called “Ethics Training with Kim Wexler.”  In them, and in character, Wexler offers tips on legal ethics and professional responsibility. A few weeks ago, one of the videos won the Emmy Award for Outstanding Short-Form Comedy.

On the show, Wexler’s partner is one of the most unethical lawyers in TV history. A few seasons ago, New Mexico suspended his law license. He’s since regained it.  I imagine he’ll eventually flee the law and work at a Cinnabon in Nebraska.

Name the show.

Better Call Saul.

Attorney Wexler’s legal ethics videos are here.

Five for Friday #211

Welcome to Friday!

As many readers know, I try to tie the introduction to the #fiveforfriday quiz either to the quiz number or to the date.  Today’s is the 211^th legal ethics quiz.  “211” left me less than inspired, so I turned to the date.

Being the fan of tech competence that I am, “turning to the date” involves a Google search of “______ in history.”  Being as tech competent as I am, last night’s search was “October 16 in history.”  Being as Irish as I am, I was excited to learn that Michael Collins is among those whose birthday is today. I spent the final hour before falling asleep constructing today’s intro in my mind.

Trust me, it was going to be fantastic. 

Here’s what happened. 

I wove a tale that seamlessly connected an Irish hero to a 21^st century movie whose plot is riddled with issues related to attorney wellness and legal ethics.  What could be more up my alley?

The movie? It stars George Clooney and was released in 2007.   It was nominated for a slew of awards and won several, the most notable victory being Tilda Swinton’s Academy Award for Best Supporting Actress. 

The movie’s title? In my memory, and in the intro I’d so cleverly concocted, Michael Collins.  There, that’s the connection.

And that’s where I violated the duty of competence.

The movie’s actual title?

Michael Clayton.

Alas, the best laid plans of mice and bar counsel.

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

 I often speak and blog about the 7 C’s of Legal Ethics.  Indeed, I mentioned “competence” above and the 7 Cs were the subject of the first video I uploaded during the pandemic.  Anyhow, here’s a phrase that appears in one of the Rules of Professional Conduct. To which of the 7 C’s does the rule refer?

• “information relating to the representation, no matter the source.”

Question 2

Red met with Lawyer to discuss potential representation in Red v. Blue. Red chose not retain Lawyer. Now, Blue wants to hire Lawyer.   Under the rules, a factor that Lawyer must consider in deciding whether to represent Blue is whether:

• A.  During the consult with Red, Lawyer learned information that could be significantly harmful to Red.  
• B. Red is likely to proceed pro se instead of finding another attorney.
• C. Trick question – there are no circumstances under which Red can ethically represent Blue. 
• D. Trick question – since Red did not retain Lawyer, Lawyer may absolutely represent Blue.

 Question 3

Rule 1.4 requires a lawyer to communicate to a client sufficient information to make adequately informed decisions about the representation.   Some have argued that the duty includes informing the client (a) that the lawyer doesn’t have ________________; or (b) if ____________ lapses during the representation. The Professional Responsibility Board and the Vermont Bar Association recently agreed to form a committee to study the issue.

Which most accurately fills in the blank?

• A.   a trust account.
• B.   a succession plan.
• C.   malpractice/professional liability insurance.
• D.  a law license.

 Question 4

 Law Firm is short on cash.   Investor offers to provide cash in exchange for an ownership interest in the firm.   May the lawyers at Law Firm agree to the offer?

• A.  Yes, if Investor doesn’t direct the lawyers’ professional judgment.
• B.  Yes, if Investor’s name is not added to the firm name.
• C.  A & B.
• D.  No.

(This is another one that we’re studying whether to amend)

 Question 5

 Speaking of award winners . . .

 . . . This is fictional attorney Kim Wexler.  She’s in a tv show.

Earlier this year, the show released a series of YouTube videos called “Ethics Training with Kim Wexler.”  In them, and in character, Wexler offers tips on legal ethics and professional responsibility. A few weeks ago, one of the videos won the Emmy Award for Outstanding Short-Form Comedy.

On the show, Wexler’s partner is one of the most unethical lawyers in TV history. A few seasons ago, New Mexico suspended his law license. He’s since regained it.  I imagine he’ll eventually flee the law and work at a Cinnabon in Nebraska.

Name the show

Social Media & Legal Ethics: Keep It Real.

As I usually do every year, I presented a CLE for the Vermont Paralegal Organization on Wednesday.  I present for many groups.  I assure you that there is no group more dedicated to providing competent services than Vermont’s paralegals.  They are a valuable resource that we should not overlook or undervalue.

The topic was social media & legal ethics.  My theme was “Keep it Real.”  I tried to convey that social media isn’t so much the cause of misconduct as it is a relatively new forum for misconduct that has always existed. That is, if it’s wrong in real life, it’s wrong on social media.

Here’s how I tried to make my point.

Consider the following 8 headlines.  You’re only allowed to click on 4.  Which do you choose?

1. Judge reprimanded for sexting women in his robes.
2. Judge sanctioned for harassment.
3. Instagram posts land Lawyer in hot water.
4. Lawyer sanctioned for misrepresentation to a tribunal.
5. Lawyer suspended over rude Facebook message to client.
6. Lawyer suspended for failing to properly communicate with client.
7. Facebook spoliation results in $700K in sanctions and 5-year license suspension.
8. Lawyer suspended for discovery violations and lack of candor to a tribunal.

I’m guessing that many of you have already figured it out.  While the list includes 8 headlines, there are only 4 stories.  Clicking on 1 or 2 would return the same story.  The same goes for 3 & 4, 5 & 6, 7 & 8.

It seems to me that “social media sells.”  Its click-bait nature, I think, does a disservice in the sense that in each of the 4 matters, the conduct would have resulted in disciplinary sanctions even if it had not involved social media.

For instance, the Tennessee judge’s ‘overtly sexual’ messages would’ve have been just as wrong if sent via U.S. mail with accompanying Polaroids.  (h/t ABA Journal).

The Instagram posts that revealed this lawyer’s dishonesty did not make the lawyer’s misconduct any worse than it already was.

A lawyer who is rude and/or non-responsive to a client’s Facebook Messages is no different than a lawyer who is rude and/or non-responsive to a client’s phone calls and letters.

Finally, counseling a client to destroy evidence, lie about it in discovery, and then attempt to cover-up the entire scheme is a violation regardless of whether the evidence is electronic. (h/t Above The Law).

Imagine the following ethics inquiry:

• Lawyer: “Mike, can I send a Facebook message directly to my client’s represented adversary?”
• Me: “Would that be okay to do by letter in real life?”
• Lawyer: “No.”
• Me:  “There you have it. Keep it real.

Below, I’ve pasted in links to resources.  It’s a sampling, not an exhaustive list. If you only have time for one, I recommend the Social Media & Legal Ethics Guidelines published by the Commercial & Federal Litigation Section of the New York State Bar Association.

In closing, does social media raise new questions?

Yes.

But, often, the answer is the same as it was in the old days.

What’s wrong is wrong.

Resources

• The Social Media Guidelinesof the Commercial and Federal Litigation Section of the New York State Bar
• Pennsylvania Bar Association Formal Opinion 2014-300 – Ethical Obligations For Attorneys Using Social Media
• North Carolina State Bar’s 2018 Formal Ethics Opinion 5
• Professional Ethics Committee of the State Bar of Texas – Opinion 671
• Philadelphia Bar Association Opinion 2014-5
• Massachusetts Bar Association Committee on Professional Ethics Opinion 2014-5
• Oregon State Bar Opinion 2013-189
• New Hampshire Bar Association Ethics Committee Advisory Opinion 2012-13/05

 

 

Wellness Wednesday: Slow Down.

It’s okay to slow down.

Basketball coaches have a saying with their players: we want to play quick, but not fast.  The point being that, sometimes, players play too fast for their own good, trying to do too much at once.  It wasn’t uncommon to call timeout and tell the team “we’ll be fine, if we just slow down a bit. We aren’t going to score 40 points in the next 30 seconds. Let’s focus on getting 1 good shot the next time we have the ball.”

Today, I realized that the same goes for attorney wellness.  I didn’t come to the realization on my own.  Rather, I came across an interview that Law.Com did with Jennie Fagen Malloy, a wellness consultant whose clients include several large law firms.  The interview is here.

Referring to the stress and anxiety that comes with both the profession and the times, Malloy makes a great point: we can’t force our way out of it.  Often, working harder is our natural reaction.  As Malloy points out, working harder in response to anxiety is okay, up to a point. Referring to lawyers, Malloy notes:

• “. . . anxiety makes them work hard. It allows them to anticipate worst-case scenarios and makes them good at their jobs. But when do you move from productive anxiety to crossing that line into too much anxiety, which is disruptive?”

The answer?  I think Malloy’s is terrific:

• “I like to reframe ‘stressed,’ which can sound negative, to ‘moving too fast.’ This is more empowering. People can take ownership of moving too fast.’”

I suggest reading the entire interview.

Remembering not to move too fast is a great tip.  I’m not immune to stress and anxiety at work.  When it strikes, it typically builds to a point where I list the 10 things that need to be finished pronto, then resolve to complete them even more pronto than pronto. 

That’s not good.

A better approach is to “slow down.”  Identify one task, finish it, move to the next one.  In a blog I posted last spring, I referred to it as “make your bed.”  It’s a coping mechanism I used early in the pandemic.

I often found my mind racing with what felt like an overwhelming number of things to get done: complaints to screen, emails and phone calls to return, CLEs to prepare, blogs to post, training runs to fit in, toilet paper to horde.  Initially, I’d lie awake at night setting the next day’s schedule in such a way as to be caught up – on everything! – by 3:00 PM. 

Dumb. 

So, I changed my approach.

I slowed down and focused on starting each day by making my bed. 

Corny? Perhaps.  But it helped.

Throughout the profession, I sense anxiety rising again.  Maybe it’s best not to try to outpace it. 

Instead, slow down.

Low Places: Conflicts arising from personal relationships with opposing counsel.

Blame it all on my roots,

I showed up in boots,

and ruined your black-tie affair.

 ~ Garth Brooks, Friends In Low Places

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

 The most common inquiry that I receive is one in which a lawyer calls to discuss a potential conflict of interest.  Most often, the potential conflict involves a former client whose interests may be adverse to those of a new client.   Despite our small bar, it’s rare that I receive an inquiry involving a potential conflict arising from a lawyer’s personal relationship with opposing counsel.

So called “personal relationship” conflicts are important to understand.  And, thanks to ABA Formal Opinion 494, there’s now guidance to assist us.  Among others, the ABA Journal, the Professional Responsibility Blog, and Faughnan on Ethics reported the opinion’s release.

Before I get to the opinion, I’ll start with the rule.

In Vermont. Rule 1.7(a)(2) states that a conflict of interest exists whenever:

• “there is a significant risk that the representation of one or more clients will be limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.” (emphasis added).

Don’t forget! Unlike conflicts involving current and/or former clients, personal interest conflicts are not automatically imputed to others in the conflicted lawyer’s firm.  They are imputed only if the prohibited lawyer’s personal interest presents “a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.”  V.R.Pr.C. 1.10(a).

So, what’s a personal interest conflict?  For years, I used an example that might be too simplistic:

• Client wants to retain Lawyer.
• Lawyer doesn’t know Opposing Party well, but Opposing Party is the coach of Lawyer’s child’s sports team.
• Lawyer doesn’t want Child’s relationship with the coach to suffer.
• So, Lawyer sits out the case, but another attorney in the same firm represents Client.

Another type of personal interest that might materially limit a lawyer’s representation of a client is the lawyer’s personal relationship with opposing counsel.  This is the type of conflict addressed by the recent advisory opinion.  It breaks such personal relationships into three categories: intimate relationships, friendships, and acquaintances.

Intimate Relationships.

Per the opinion, lawyers who are married, engaged to be married, or in an exclusive intimate relationship:

• “must disclose the relationship to their respective clients and ordinarily must not represent the clients in the matter unless each client gives informed consent, confirmed in writing [and] the lawyers reasonably believe that they will be able to provide competent and diligent representation to each.”

This is consistent with the language in Comment 11 to V.R.Pr.C. 1.7.

Frankly, as those of you who know my status may have surmised, relationships are difficult enough for me. I can’t imagine navigating one in which my significant other represents a client’s adversary.  Alas, knowing me, I’d probably use it as an excuse to end the relationship.  And I’m not talking the attorney-client relationship.

Friendships

 This category is a bit trickier to analyze, especially in such a small state.  Here’s the quick answer:

• “In sum, opposing lawyers who are friends are not for that reason alone prohibited from representing adverse clients.  The analysis turns on the closeness of the relationship.”  (emphasis in the original).

The opinion lists several types of friendships and indicates whether they are of a nature that would require disclosure and a client’s consent.

Among those for which disclosure and consent is advised are close friendships and friendships between lawyers who:

• “exchange gifts at holidays and special occasions; regularly socialize together; regularly communicate and coordinate activities because their children are close friends and routinely spend time in each other’s homes; vacation together with their families; share a mentor-protégé relationship developed while colleagues . . . [or] share confidences and intimate details of their lives.”

Friendships that should be disclosed but likely do not require client consent for continued representation include those between lawyers who were classmates or who used to practice together and who stay in touch or occasionally get together.

Acquaintances

The opinion states that “[a]cquaintances are relationships that do not carry the familiarity, affinity or attachment of friendships.”  As such, while disclosing an acquaintanceship “may be advisable to maintain good client relations,” it is not required.  Examples include:

• serving on boards or committees together;
• going to the same gym or place of worship; and,
• bumping into each other around town.

Conclusion

Again, the opinion is here.  Give it a read.  Otherwise, use good judgment.  Remember, even if a personal relationship with opposing counsel might not have a snowball’s chance in heck of materially limiting your representation of the client, it might make sense to disclose the relationship anyway.   I’ve seen situations in which a client who learns of the personal relationship after the fact considers the failure to disclose as evidence of the conflict.

Does that make it a conflict?

No.

But as friendly an acquaintance as I am, nobody likes learning from me that a complaint has been filed against them.

Finally, yes.  I’m a fan of the third verse.

 

Don’t Be That Attorney

I’m back.   I hope it sticks this time. 

Incivility is on the rise.  I’m not referring to the political arena.  Nor am I referring to some of the more heated rivalries that playoff baseball and basketball have brought of late.  Sadly, I’m referring to within the practice of law.

Yes folks, right here in Vermont.

We’ve been talking about incivility as a contributor to lawyer stress for a few years.  However, lately, I’ve noticed a marked increase in the number of calls I receive from lawyers asking for guidance on how to deal with another lawyer’s rude and obnoxious behavior. In addition, I’ve noted a similar increase while screening disciplinary complaints.  I’ve reviewed emails and letters that no lawyer would be proud to have made public.

I understand that times are hard.  The pandemic, social unrest, and the election cycle have combined to increase stress throughout society.  I’m well-aware that legal profession isn’t immune from what’s happening to everyone else.  But the times aren’t license to be jerks.

In this article on election stress disorder, a therapist notes “[a]nxiety makes you feel powerless, and resentment and anger make you feel temporarily more empowered.” As lawyers dealing with other lawyers, we must fight the urge. The fleeting reprieve that follows the obnoxious email isn’t worth it. 

A few years ago, Chris Ekman, Bill Gagnon, and I presented a CLE for the VBA.  Chris and Bill do a lot of legal malpractice defense.  I can’t recall our specific topic, but it was something like “malpractice & ethics: traps for the unwary.”  Chris and Bill shared a tip that stuck with me: treat every email that you send as if it will be Exhibit A in the trial of the malpractice claim that is brought against you.  

Sage advice. 

Here’s how I’ve appropriated it as my own: treat every email as one that will be attached to the disciplinary complaint that is filed against you.

On both this blog and at CLEs, I’ve been clear that I don’t know when incivility reaches the point that intervention by the Professional Responsibility Program is warranted.  At some point, it does. When it reaches that point, what then?

When lawyers call me in exasperation over another lawyer’s behavior, I am more than willing to call the attorney and ask them to tone it down.  More recently, I’ve decided that when multiple lawyers contact me about the same attorney, I’ll consider whether to refer that attorney to one of our assistance panels for a level of intervention that’s more formal than a phone call from me asking the lawyer to “cut it out.”

An assistance panel is like “diversion.”  The panel provides a forum for the non-disciplinary resolution of complaints.  That is, no sanction issues against the lawyer’s license.

Still, it’s serious.  It’s an appearance in front of peers/colleagues who will have in front of them the email – or emails – that, by then, the temporary empowerment you felt upon hitting “send” will no longer be worth it. 

Believe it or not, you might thank me for asking an assistance panel to meet with you to discuss your incivility.  Why?  Because it’s better than the formal sanction that might result if your conduct goes unchecked.

Today, the ABA Journal reported the story of an attorney whose pattern of rude and uncivil behavior caused the Ohio Supreme Court to suspend the lawyer’s license for 2 years.  The court’s opinion is here. 

Is it an extreme example?  Yes.  But, as with every pattern of misconduct, it started with a single instance.

Don’t be that attorney. If you begin to resemble that attorney, I’m more than willing to help you keep from becoming that attorney.

In closing, you cannot control how others treat you.  But you can always control your reaction to how others treat you.

Related posts:

Don’t be a jerk

Five for Friday #155

Civility Matters: Especially Now

Incivility Results in Public Sanction

Advocacy, Decorum, and Grover

So, your client thinks she’s funny?

Wellness Wednesday: Baseball & Civility

Wellness Wednesday: Be Kind To Lawyers