Month: December 2020

Monday Morning Answers #216

Michael

Welcome to Monday!

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

Honor Roll

Answers

Question 1

 Lawyer called me with an inquiry. I responded: “the rule only applies to communications about the subject matter of the representation.”

Given my response, it’s most likely that Lawyer called to discuss a communication with _______:

  • A. a reporter. 
  • B.  a person represented by another lawyer 
  • C.  an unrepresented person.  
  • D.  the public (an advertisement)

V.R.Pr.C. 4.2 prohibits a lawyer from communicating on the subject matter of the representation with a person that the lawyer knows or reasonably should know is represented.  Over at The Law for Lawyers Today, Karen Rubin recently posted No DQ for contacting represented party on a different subject, district court says.

Question 2

Having caught up on your latest binge, you unmuted the CLE I was doing via Zoom to hear me say something like: “generally, the rules break them into 3 groups: current, former, and prospective.”

Groups of what?

Clients for the purposes of analyzing conflicts.  See, V.R.Pr.C. 1.7 (current), V.R.P.C. 1.9 (former), and V.R.Pr.C. 1.18 (prospective).

Question 3

 Which is associated with a different rule than the others?

  • A.  continued representation will result in a violation of the rules. 
  • B.  disclosure is impliedly authorized to carry out the representation. 
  • C.  the client has made allegations concerning the services provided by the lawyer. 
  • D.  the lawyer reasonably believes that the client will commit a criminal act that is likely to result in the death of or substantial bodily harm to someone other than the client.

“A” appears in Rule 1.16 and requires withdrawal from representation.  V.R.Pr.C. 1.16(a)(1).  B, C, and D each appear in Rule 1.6 and permit (B & C) or require (D) a lawyer to disclose otherwise confidential information relating to the representation of a client.

Question 4

V.R.Pr.C. 4.4(b) requires a lawyer who receives a document relating to the representation, that the lawyer knows or reasonably should know was inadvertently sent, to promptly notify the sender.

The rule is not the end of the receiving lawyer’s professional obligations. 

What is the most likely source of additional obligations?

  • A.  the rule that requires lawyers to report misconduct by other lawyers.
  • B.  the rule that prohibits ex parte communications. 
  • C.  the rules on conflicts of interest.  
  • D.  the rules of civil procedure.

 This blog post highlights the additional obligations that arise under the rules of civil procedure.

Question 5

 Tom Girardi is famous trial attorney from California who founded the firm Girardi Keese. He is married to one of the stars of The Real Housewives of Beverly Hills.  Girardi, his wife, and his firm are defendants in a lawsuit that alleges that Girardi embezzled millions in client funds from trust to fund his celebrity lifestyle.

Earlier this week, a federal judge froze Girardi’s and the firm’s assets after finding both in contempt for failing to account for $2 million in client funds.  During the hearing, and as reported by The ABA Journal, the judge said:

“This isn’t that difficult: You learned in law school, we all did, in Ethics 101, that when you get money that belongs to a client you put it in an escrow fund and you don’t touch it.  No matter what your personal financial situation is, no matter what kind of pressures you’re under, if you touch client money you’re going to be disbarred and quite possibly charged criminally.”

Before now, you might not have heard of Girardi. However, if you’re a movie fan, you’ve likely heard of a legal clerk that his firm helped to secure a $355 million dollar settlement in a class action against Pacific Gas & Electric that involved contaminated drinking water.

Name the legal clerk.

Erin Brockovich

brockovich

Five for Friday #216

Michael 1 Comment

Welcome to Friday and the 216th legal ethics quiz!

I spent the evening pondering numbers. In particular, how to work “216” or “12/18” into this post. Along the way, I realized something about numbers and the law.

By way of background, whether in the AG’s office or as disciplinary counsel, my approach to reading decisions issued in my cases was simple: skip to the end.  Basically, I didn’t want to watch the game, I wanted to know who won.  Figuring out how or why was something to be done later.

Which gets me back to “numbers and the law.”

Unlike me, some of you might prefer the competent and mature approach of reading the court’s decision in the proper order.  Anticipation building, emotions rising and falling with each phrase that supports or undercuts your client’s argument.

If so, I suspect you’ll agree that it’s rarely a good sign when the court takes pains to point out the number of pages that you included in your filings.  I think you’ll also agree that peppering your filings with frivolous arguments and cites to Looney Tunes characters is a sure-fire way to cause a court to point out the number of pages you filed.

I can hear you now: “Mike, I’m not saying you’re wrong, but is there a case you can point to as an example?”

I’m glad you asked.

Yesterday, the ABA Journal reported this story about a lawyer recently sanctioned by the 11th Circuit Court of Appeals. I’ll leave you to the story and opinion.  Suffice to say, along the way, the court points out that the lawyer, who had been sued by his brother in a dispute related to their mother’s estate, filed:

  • a 69-page motion to dismiss;
  • a 153-page motion to reconsider the decision to deny his motion to dismiss; and,
  • a 326-page opening statement.

Quite the numbers.

My favorite line from the decision? Referring to the lawyer, the Court noted:

“He fails to coherently cite case law, though he cites Bugs Bunny.”

My holiday wish to lawyers: may no court ever say the same about you.

Happy Holidays and onto the quiz!

And Go Clemson!

Rules

  • None.  Open book, open search engine, text-a-friend.
  • Exception: Question 5. We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply.
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday.
  • Please don’t use the “comment” feature to post your answers.
  • Please consider sharing the quiz with friends & colleagues.
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

 Lawyer called me with an inquiry. I responded: “the rule only applies to communications about the subject matter of the representation.”

Given my response, it’s most likely that Lawyer called to discuss a communication with _______:

  • A.  a reporter. 
  • B.  a person represented by another lawyer
  • C.  an unrepresented person.  
  • D.  the public (an advertisement)

Question 2

Having caught up on your latest binge, you unmuted the CLE I was doing via Zoom to hear me say something like: “generally, the rules break them into 3 groups: current, former, and prospective.”

Groups of what?

Question 3

 Which is associated with a different rule than the others?

  • A.  continued representation will result in a violation of the rules.
  • B.  disclosure is impliedly authorized to carry out the representation. 
  • C.  the client has made allegations concerning the services provided by the lawyer. 
  • D.  the lawyer reasonably believes that the client will commit a criminal act that is likely to result in the death of or substantial bodily harm to someone other than the client.

Question 4

 V.R.Pr.C. 4.4(b) requires a lawyer who receives a document relating to the representation, that the lawyer knows or reasonably should know was inadvertently sent, to promptly notify the sender.

The rule is not the end of the receiving lawyer’s professional obligations. 

What is the most likely source of additional obligations?

  • A.  the rule that requires lawyers to report misconduct by other lawyers.
  • B.  the rule that prohibits ex parte communications. 
  • C.  the rules on conflicts of interest.  
  • D.  the rules of civil procedure.

Question 5

 Tom Girardi is famous trial attorney from California who founded the firm Girardi Keese. He is married to one of the stars of The Real Housewives of Beverly Hills.  Girardi, his wife, and his firm are defendants in a lawsuit that alleges that Girardi embezzled millions in client funds from trust to fund his celebrity lifestyle.

Earlier this week, a federal judge froze Girardi’s and the firm’s assets after finding both in contempt for failing to account for $2 million in client funds.  During the hearing, the judge said:

“This isn’t that difficult: You learned in law school, we all did, in Ethics 101, that when you get money that belongs to a client you put it in an escrow fund and you don’t touch it.  No matter what your personal financial situation is, no matter what kind of pressures you’re under, if you touch client money you’re going to be disbarred and quite possibly charged criminally.”

Before now, you might not have heard of Girardi. However, if you’re a movie fan, you’ve likely heard of a legal clerk that his firm helped to secure a $355 million dollar settlement in a class action against Pacific Gas & Electric that involved contaminated drinking water.

Name the legal clerk.

snowflake

ABA issues common sense guidance on working remotely.

Michael

Imagine this:

  • You are a lawyer who is licensed in Other State but not in Vermont.
  • You live and work in Other State and own a condo in Vermont.
  • For various reasons, you move to the Vermont condo during the pandemic.
  • There, and thanks to technology, you continue to work on your clients’ legal matters.
  • You do not open an office in Vermont, advertise in Vermont, accept new clients in Vermont, or give advice on Vermont law.
  • Not one of your client matters has anything to do with Vermont or Vermont law.
  • But for the fact that you’re in your condo, your work is exactly what you’d be doing if you were working from your office in Other State.

Question: have you engaged in the unauthorized practice of law in Vermont?

ski condo

For all you Vermont lawyers who enthusiastically answer “Yes! Disbar that person!,” I assume that when you move south for the winter or spend any significant time out of state you (a) never work on your Vermont matters; or, if you do, you either (b) get admitted in the state you’re in; or, (c) self-report your unauthorized practice of law to disciplinary authorities in that state.  Right?

More practically, are you worried about the lawyers who live & work on opposite sides of the Connecticut River and who are not admitted in the state where they live?

The “condo scenario” has been happening since the pandemic began.  In April and May, I received 5 such inquiries from out-of-state lawyers not licensed here.  The first of the five was the first I’d ever received on the issue.  I referred each inquirer to V.R.Pr.C. 5.5 and stated that, in my view, the scenario does not violate the rule.

Lawyers being lawyers, we needed guidance to answer the question.  Yesterday, guidance arrived in the form ABA Formal Advisory Opinion 495.  In it, the ABA’s Standing Committee on Ethics and Professional Responsibility concluded that our flatlander friend does not violate the rule by working between runs:

  • “The purpose of Model Rule 5.5 is to protect the public from unlicensed and unqualified practitioners of law. That purpose is not served by prohibiting a lawyer from practicing the law of a jurisdiction in which the lawyer is licensed, for clients with matters in that jurisdiction, if the lawyer is for all intents and purposes invisible as a lawyer to a local jurisdiction where the lawyer is physically located, but not licensed.”

The ABA Journal and Professional Responsibility Blog reported the opinion.

To me, the opinion not only makes perfect sense, it reflects common sense. It quotes opinions from Maine and Utah that reached the same conclusion. The Utah opinion includes a line that resonates with me.  Referencing an Ohio opinion that concluded that a variation of the “condo scenario” did not constitute the unauthorized practice of law, the Utah opinion notes:

  • “what interest does the Utah State Bar have in regulating an out-of-state lawyer’s practice for out-of-state clients simply because he has a private home in Utah? And the answer is the same—none.”

Exactly.

The Undoing: another HBO lawyer to sanction.

Michael

Like most of my interests, my streaming interests tend to wax, wane, and vary. Lately, I’ve gravitated to two HBO Max shows: The Flight Attendant and The Undoing. I’m current on the former (the finale drops tomorrow) and have finished the latter. I’m left wondering, yet again, which fictional lawyer in an HBO series would be disbarred first.

To date, we have 2 candidates, each from the same show. I blogged about their misconduct in The Night Of . . . Who Gets Disbarred First?  The list is growing.  Both The Flight Attendant and The Undoing include story lines in which lawyers engage in conduct that, while entertaing plot devices, would most definitely draw scrutiny from disciplinary prosecutors.  Today, I’ll focus on The Undoing. 

SPOILER ALERT !!!

If you don’t want to know what happens, stop reading now.

Like, seriously.

Now!

Because here goes . . .

. . . the answer is Attorney Sylvia Steineitz.  Come on down!  You’re the next contestant on Was That Wrong?

Rabe

Attorney Steineitz’s problems begin in Episode 2 with a flagrant violation of Rule 1.9(c)(2), the rule that prohibits a lawyer from revealing information relating to the representation of a former client.  Suffice to say, when you represent a doctor in connection with a hospital’s internal disciplinary review of the doctor’s inappropriate extramarital relationship with a patient’s mother, you’re not supposed to disclose the matter to the doctor’s unknowing wife once the doctor goes on the run after the patient’s mother winds up dead. No matter how close your friendship with the doctor’s wife.

Trust me, it’s not a close call.

Then, can we talk about the finale? Sure, maybe the episode left the whole internet apologizing to Attorney Steineitz.  Still, it’s clear that she:

  • engaged in a course of conduct
  • designed to benefit a friend;
  • to a former client’s detriment*;
  • in a matter that is substantially related to the matter in which she represented the former client.

*Call me old fashioned, but, yes, I consider “a murder conviction” to be detrimental to a former client’s interests.

It’s sad. Because Lily Rabe was so good in the first season of American Horror Story.

Two additional observations:

  • The Undoing includes a compelling and realistic scene in which Attorney Haley Fitzgerald (by far the most competent lawyer in the show) confronts an ethical dilemma that can be quite difficult for criminal defense attorneys to navigate: what to do when in possession of evidence of a client’s commission of the crime?
  • I’d like to be a consultant on any movie or show that includes a trial. It drives me bonkers when directors have a lawyer react to testimony with excessive smugness or despair. Unlike the prosecutor in The Undoing, nobody does that in real life!!

In closing, Attorney Sylvia Steineitz, yes, that was wrong.  All of it.

Coming in my next post about ficitional HBO lawyers: thoughts on Rules 5.1, 5.2, and The Flight Attendant’s Annie Mouradian and Diana Carlisle.

Wellness Wednesday. Jessica Burke: “Well People Do.”

Michael 1 Comment

Jessica Burke is a Vermont lawyer who founded Burke Law.  I don’t remember how we first met. I assume it was at a CLE or via an ethics inquiry. Anyhow, I’ve known Jess for many years.

Oddly, I remember the last time I saw her. It was a beautiful day in March.  We bumped into each other on the sidewalk outside the Costello Courthouse.  We agreed that soon, Jess, me, and her significant other would grab beers after work. Then, you know, the pandemic.

Had we met for drinks, I have no idea what we’d have chatted about. I don’t doubt I‘d have learned something interesting or funny about Jess. Alas, I doubt I’d have learned anything to make me more proud of her than an experience she recently shared with me via email.

Jess Burke

I’ve long called for the legal profession to destigmatize help-seeking behavior. The process includes fostering an environment in which people are comfortable sharing the experiences that led them to seek help. I don’t think we’re there yet. That’s what makes me so proud of Jess: she just moved the needle.

A few weeks ago, Jess emailed me a link to a blog she’d posted on her website: Attorney Wellness In Vermont. Jess gave me permission to re-post it. Soon, I hope to interview Jess as a sort of follow-up. For now, read Jess’s post.

I’m serious. Read it.

It’s easy for me constantly to tell everyone that running helps me to de-stress.  Or for others to advocate for yoga, hiking, crocheting or whatever.  There’s no stigma attached to those activities.

Jess’s post is a courageous and brave step forward.

Moreover, Jess’s references to feeling numb and detached from her clients and environment are exactly what I was trying to get at in blog post last week, and again in a seminar I did the following day. Indeed, her post captures so many of the thoughts and feelings that, in my observation, are affecting more and more legal professionals with each passing week.  Simply, Jess nailed it.

Again, read the post.

Here’s my favorite of Jess’s thoughts.  Referring to her decision to try therapy, Jess wrote:

“Who takes two hours a week to have someone else help you process your thoughts? It turns out, well people do.”

Well people do.

Preach on Jess!

We must do everything we can to encourage legal professionals to do the things that well people do.

In the meantime, please join me in thanking Jessica Burke.

wellness

Federal Court enjoins enforcement of Pennsylvania rule prohibiting the knowing manifestation of bias, prejudice, discrimination, or harassment in the practice of law.

Michael 1 Comment

Proofing this post, I realized that I’d buried the lede.  So, here’s today’s point:

Last week, a judge in the United States District Court for the Eastern District of Pennsylvania issued a preliminary injunction enjoining enforcement of Rule 8.4(g) of the Pennsylvania Rules of Professional Conduct.  The judge concluded that the rule regulates speech that is “entitled to the full protection of the First Amendment” and “consist[s] of unconstitutional viewpoint discrimination in violation of the First Amendment.” 

The decision is here. Those reporting on the decision included the ABA Journal, Law360, Bloomberg Law and The Volokh Conspiracy (here and here).

Now, the information under which the lede previously found itself.

In Vermont, like most states, the disciplinary rules are based on the ABA Model Rules of Professional Conduct. Like the ABA Model Rules, many jurisdictions have long made it professional conduct for lawyers to harass or discriminate based on protected class status. Vermont first adopted such a rule in 1986.

In 2016, the ABA House of Delegates amended Model Rule 8.4(g) as follows:

“It is professional misconduct for a lawyer to:

(g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination  on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.”

At the time, the Civil Rules Committee, not the Professional Responsibility Board, was responsible for proposing amendments to the Vermont Rules of Professional Conduct. In response to the ABA’s move, the Committee proposed that the Supreme Court amend Vermont’s version of Rule 8.4(g).  The proposal was adopted and took effect in September of 2017.  We were the first in the nation to follow the ABA’s lead and amend the rule.

As amended, V.R.Pr.C. 8.4(g) now reads:

“It is professional misconduct for a lawyer to:

****

(g) discriminate against any individual because of his or her race, color, religion, ancestry, national origin, sex, sexual orientation, place of birth or age, or against a qualified handicapped individual, in hiring, promoting or otherwise determining the conditions of employment of that individual. engage in conduct related to the practice of law that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, creed, color, sex, religion, national origin, ethnicity, ancestry, place of birth, disability, age, sexual orientation, gender identity, marital status or socioeconomic status, or other grounds that are illegal or prohibited under federal or state law. This paragraph does not limit the ability of a lawyer to accept, decline, or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these rules.

Nationally, attempts to adopt versions of the Model Rule have proven controversial. While a handful of states have done so, many others have specifically decided not to.  I’ll try to summarize the competing arguments.  In the next paragraph, anything in italics is emphasis I’ve added.

Citing the First Amendment, many opposed to the ABA Model Rule argue that “conduct related to the practice of law” is overly broad and puts a lawyer at risk of being sanctioned for engaging in protected speech made outside the practice of law. For example, Comment [4] to the Vermont rule states that “conduct related to the practice of law includes . . . participating in bar association, business, or social activities in connection with the practice of law.”  Opponents also argue that whether conduct violates the rule turns solely on the subjective view of the disciplinary prosecutor and disciplinary tribunal.  Earlier this summer, The Volokh Conspiracy posted this critique in response to Pennsylvania’s decision to adopt a version of Model Rule 8.4(g). The critique summarizes the bloggers’ long-standing criticism of the Model Rule and is representative of arguments against the rule.

The competing position is that inclusivity and diversity matter, and that a license to practice is not a license to harass or discriminate.  The position is perhaps best stated in ABA Formal Advisory Opinion 493. The ABA’s Standing Committee on Ethics and Professional Responsibility issued the opinion in July.  The opinion offers a defense of the rule and then uses five hypotheticals to provide guidance as to how it should be applied. In short, the Committee stated that:

“Discriminatory and harassing conduct, when engaged in by lawyers in connection with the practice of law, engenders skepticism and distrust of those charged with ensuring justice and fairness. Enforcement of Rule 8.4(g) is therefore critical to maintaining the public’s confidence in the impartiality of the legal system and its trust in the legal profession as a whole.”

If you’re interested in learning more, here are representative samples of each side of the debate:

  • Thomas Wilkinson is a former president of the Pennsylvania Bar Association and has extensive experience with legal ethics and professional responsibility.  Tom’s also a regular member of this blog’s Five for Friday Honor Roll in Legal Ethics.  Tom has often been quoted in defense of both the Model Rule and the Pennsylvania rule, including here, here, and here.
  • Alberto Bernabe is also a regular member of this blog’s Five for Friday Honor Roll. In this post, Professor Bernabe argues that Illinois’ version of Rule 8.4(g) is better than the Model Rule.  Professor Bernabe has blogged often on Rule 8.4(g). His posts are here.
  • a short video in which UCLA’s Professor Eugene Volokh argues against the rule.
  • the Louisiana Attorney General’s opinion that a court would likely find the rule unconstitutional.
  • a post on The Federalist Society blog that reports on the Montana Legislature’s resolution declaring the rule unconstitutional. 
  • an ABA Journal post that lays out various opinions on the constitutional issues involved.
  • a post in which the Dennis Rendleman of the ABA’s Center for Professional Responsibility responds to criticism of the rule.
  • a resolution from the Philadelphia Bar Association supporting the Pennsylvania rule. 
  • an article in which NYU Professor Stephen Gillers argues in favor of the rule.

As far as I know, there’s not a single disciplinary complaint under investigation in Vermont in which the conduct, if it happened, would violate V.R.Pr.C. 8.4(g). Thus, at least in the disciplinary context, there does not appear to be a looming challenge to Vermont’s rule. 

Of course, the Pennsylvania ruling did not arise in the disciplinary context.  Rather, and as reported by the ABA Journal, the underlying case is one in which the lawyer who is challenging the rule alleges that he often gives speeches at law-related events in which he makes comments that could be construed as endorsing bias and harassment.

Something tells me that the Pennsylvania decision is not the last that Rule 8.4(g) will be in the news.

Legal Ethics

Duties associated with the inadvertent receipt and production of information.

Michael 1 Comment

When talking professional responsibility, we sometimes focus so intently on the Rules of Professional Conduct that we overlook duties that arise under other law.  Prone to such laser-like focus is the discussion of the professional duties associated with the inadvertent production and receipt of privileged information.

Oops

I’ve previously mentioned Presnell on Privileges.  It’s a fantastic resource to stay up to date on all matters related to the attorney-client privilege.  Last week, a loyal reader forwarded me a post from the blog: EEOC Lawyer Reads GW’s Privileged Emails – Violates FRCP 26(b)(5)(B). What about Ethics Rules and Sanctions?

Let the discussion begin.

With respect to legal ethics, V.R.Pr.C. 4.4(b) governs.

“A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.”

Three observations:

  • I’d caution against debating with yourself as to whether you received a “document.”  That strikes me as too fine a distinction when dealing with information that you know or should know was not meant for you. Indeed, Comment [2] indicates that “ ‘document’ includes email or other electronic modes of transmission subject to being read or put into readable form.”
  • Nothing in the rule suggests that the duty to notify the sender turns on the recipient’s assessment of whether the document is privileged. Rather, “receipt” triggers the duty to notify.
  • The rule applies no matter the sender.  That is, it’s not limited to “opposing counsel.”

As I’ve often mentioned, notification is the only duty that arises under Vermont’s rule.  Per Comment [2] “whether the lawyer is required to take additional steps, such as returning the original document, is a matter of law beyond the scope of these rules, as is the question of whether the privileged status of a document has been waived.”  Comment [3] goes on to indicate that even when not required by law to do so, the decision to return or destroy the document unread is a matter of professional judgment left to the lawyer.

But that doesn’t end the discussion.  There are duties that spring from other law, most notably the rules of civil procedure.

The link at the beginning of this post refers to the duties that arise under the federal rules in response to an assertion that a privileged document was inadvertently produced.  There’s also Rule 26(b)(6)(B) of the Vermont Rules of Civil Procedure. Under the rule, a party who is notified that privileged information was produced “must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved.”

Is a violation of the civil rule an ethics violation?

Maybe.

V.R.Pr.C. 3.4(c) makes it a violation to “knowingly disobey an obligation under the rules of a tribunal.”  Further, when discussing privileged information, V.R.Pr.C. 4.4(b) prohibits “methods of obtaining evidence that violate the legal rights of [a] person.”  The Comment adds that while “it is impractical to catalogue all such rights . . . they include . . . unwarranted intrusions into privileged relationships, such as the client-lawyer relationship.” Finally, even if not an ethics violation, I’ve heard that discovery sanctions aren’t fun.

In conclusion, when discussing inadvertent production, don’t limit the discussion to the Rules of Professional Conduct.

Wellness Now!

Michael 1 Comment

Sung to the tune of a song heard this time of year:

“We need a little wellness now!”

Actually, with Festivus approaching, I should’ve gone with:

Wellness Now!**

  *****************************

I’m concerned for the profession.  Whether responding to inquiries or screening complaints, a message has emerged over the past 6 weeks: tension is rising & nerves are frayed. I’ve seen it in many contexts:

  • A rise in incivility between lawyers on different sides of a matter.
  • Increased tension between lawyers and their clients.
  • Lawyers from multiple practice areas convinced that theirs is the busiest, their clients the most insistent, and their work-induced stress levels the highest.
  • Lawyers from practices areas that are significantly less busy than prior to the pandemic convinced that their work-induced stress levels are the highest.

Most noticeably, the message emerges in the form of more and more lawyers contacting me to ask for tips & strategies to stay well.

That never used to happen.

Anecdotal? Small sample size? A blip that will revert to the mean?

I don’t know.

But it’s happening.

(I’ll leave for another post my thoughts on the fact that lawyers are reaching out even though they know I still screen disciplinary complaints.)

Today, in response to what I perceive to be a profession-wide need for a little wellness, I decided to repost videos I recorded from the Garage Bar in May. I did so in conjunction with National Lawyer Well-Being Week.

Spurred by the joint efforts of the National Task Force on Lawyer Well-Being, the ABA’s Commission on Lawyer Assistance Programs, and the Well-Being Committee of the ABA’s Law Practice Division, the week’s aim was “to raise awareness and encourage action across the profession to improve well-being for lawyers and their support teams.”  The organizers assigned a different theme for each day of the week.  For each theme, I posted a video.

Yes, if you watch all five, it’s 40 minutes of CLE in the new “wellness” category.  But the point isn’t to make progress towards the CLE requirement.  The point is to progress – however incrementally – down the path towards improved wellness.

Beginning now.

National Lawyer Well-Being Week Videos

** I’m aware that “Serenity Now!” is first heard in a different episode than the one in which Festivus is celebrated. My point was the connection. So, if you’ve already emailed me to suggest a mistake, I will challenge you to feats of strength. Actually, I won’t.  Instead, I’ll air my grievances. I’d need a Festivus Miracle to perform a feat of strength.

Serenity

Five for Friday #215

Michael 1 Comment

Welcome to Friday and the 215th #fiveforfriday legal ethics quiz.

Today’s is a Vanilla Ice intro:  meaning, I’m skipping the intro and going quick to the quiz, to the quiz no fakin.

Oh, but wait!  Speaking of 215, and with the next line of Ice, Ice, Baby in mind, I’d be remiss not to mention Patrick Kennedy.

Not only does he love all things bacon – he once made a bacon-scented candle – Patrick’s birthday is February 15th.  That’s right – 2/15.  So, for readers who enjoy the traditional intro tied to the week’s number, here’s a post that I did in honor my brother’s birthday last year.

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 answersPlease consider sharing the quiz with friends & colleagues.
  • Please consider sharing the quiz social media.  Hashtag it – #fiveforfriday

 Question 1

It happened again.  So, fill in the blank.

A change to wiring instructions should put a lawyer on alert to a potential _________:

  • A.  conflict of interest.
  • B   situation in which the client is not competent to make informed decisions about the representation.
  • C.  violation of the rule that prohibits unreasonable fees.
  • D.  trust account scam.

Question 2

 Lawyer called with an inquiry.  I answered, “you need to make sure to avoid noisy ______________.”

Given my answer, it’s most likely that Lawyer called to discuss:

  • A.  withdrawal.
  • B.  clients.
  • C.  judges.
  • D.  technology.

Question 3

 I often refer to the 7 Cs of Legal Ethics.  A rule involving one of the Cs includes a comment that reads:

  • “A lawyer should adopt reasonable procedures, appropriate for the size and type of firm and practice, to determine in both litigation and non-litigation matters the persons and issues involved.  Ignorance caused by a failure to institute such procedures will not excuse a lawyer’s violation of this rule.”

Which C?

Question 4

 When a lawyer holds funds in trust and in which two or more persons claim interests, a rule specifically requires the lawyer:

  • A.  to resolve the dispute.
  • B.  to keep the funds separate until the dispute is resolved.
  • C.  to promptly distribute all portions that are not in dispute.
  • D. B & C.

Question 5 & Bonus

There’s a lawyer who has been in the news a lot lately.  The news has included reports that disciplinary complaints have been filed against the lawyer in at least five jurisdictions.

A few weeks ago, the lawyer held a press conference in which the lawyer analogized a client’s claims to a famous scene in this blog’s favorite legal movie, My Cousin Vinny.

Name the lawyer.

Bonus:  identify the specific issue that both the lawyer and Vinny argued rendered witnesses unreliable.

the-quiz