Five for Friday #226

Welcome to the 226th #fiveforfriday legal ethics quiz!

I’ve been on hiatus from crafting introductions related to the quiz number or date.  Today, the hiatus ends. Barely.

The Kentucky Derby is tomorrow.  Since nobody likes a quitter, I’m not going to let my horrible track record keep me from yet again using the pre-Derby quiz to share my picks.

I like an exacta box with the 8, 10, 14 and 15.

Alas, people like wafflers even less than quitters. So, I’ll take a stand:

  • Hot Rod Charlie
  • Essential Quality
  • Rock Your World
  • Midnight Bourbon.

I can hear you now: “mike, that’s it? How does this end the hiatus?

Here’s how.

I’m easing back into things.  Today, I spent about 22.6 seconds researching my Derby picks.

Onto the quiz!

ps: how can your Kentucky Derby picks NOT include a horse with “bourbon” in its name?!?!

pps: Elizabeth Kruska is not only a regular member of the #fiveforfriday Honor Roll, she’s also the current President of the Vermont Bar Association.  And I can make the following statement with no worry of violating any of the honesty or advertising rules: President Kruska and her husband, Wesley Lawrence, are the Vermont bar’s leading horse-racing aficionados. In 2018, Elizabeth was kind enough to answer a series of questions in which I attempted to tie horse racing, the practice of law, and legal ethics.  Her answers and insight are fascinating.  You can check them out here.

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

Lawyer called me with an inquiry related to Matter 2, a matter in which Lawyer was considering whether to represent Spring.  Our discussion focused on whether Matter 1 was “the same as or substantially related” to Matter 1.

It’s most likely that Matter 1:

  • A.  also involved Lawyer representing Spring.
  • B.  involved another attorney in Lawyer’s firm representing Spring.
  • C.  resulted in a disciplinary complaint being filed against Lawyer.
  • D.  involved Winter, a former client of Lawyer’s whose interests are materially adverse to Spring’s in Matter 2.

Question 2

What is the main difference between how the rules treat hourly and contingent fees?

  • A.  a contingent fee agreement must be in a writing that is signed by the client.  Meanwhile, the rule states that it is “preferable” that an hourly fee agreement be in writing.
  • B.  an hourly fee agreement must be in a writing that is signed by the client.  Meanwhile, the rules states that it is “preferable” that a contingent fee agreement be confirmed in writing.
  • C.  hourly fees are presumed reasonable, contingent fees are not.
  • D.  Trick question.  Both fees must be reasonable. Other than that, the rules draw no distinction between them.

Question 3

At a CLE, I said:

“the specific definition is ‘the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these rules or other law.’”

Which more general topic(s) is it most likely that the CLE focused on?

  • A.  The relationship between a lawyer and law firm when the lawyer is “of counsel.”
  • B.  Conflicts & Confidences.
  • C.  Issues associated with accessing electronically stored information while working remotely.
  • D.  A firm’s response when a lawyer is sanctioned and put on disciplinary probation.

Question 4

Attorney called me with an inquiry.  I listened and responded, “your ethical obligation is to notify the sender that you received it.  Depending on the circumstances, the rules of civil procedure might impose additional duties.”

What did Attorney receive?

  • A.  information that Attorney knows or should know was inadvertently sent.
  • B   a last-minute change to previously arranged wiring instructions.
  • C.  a subpoena to produce confidential information related to the representation of a current or former client.
  • D.  a request to meet with a prospective client with whom Attorney knows there exists a conflict of interest.

Question 5

48 years ago today, Lawyer was fired from his job by Person.  Person fired Lawyer after learning that Lawyer had been secretly cooperating with an investigation of Person and Others.

Lawyer had been cooperating with the investigation as part of deal related to his own conduct, conduct that eventually resulted in a criminal conviction and disbarment.

In fact, Person was also an attorney, but was not actively practicing when he fired Lawyer.  Still, Person was eventually disbarred too.

The firing was part of a larger incident that is widely deemed to have resulted in legal ethics and professional responsibility becoming required courses in law school.

Name Lawyer, Person, and the job from which Lawyer was fired 48 years ago today.

Civility & Decorum: a courtroom scene.

And….action!

I’ve lost track of the number of times I’ve blogged or spoken on civility.  I’m sure many are tired of it.

However, I’m equally certain that Vermont’s judges have supported my efforts.  The judge to whom I owe the most thanks for supporting me on this front often uses a saying that captures the heart of my message far more succinctly than I:

“You are free to disagree.  You are not free to be disagreeable.”

Today’s post honors that judge.

The story comes via AL.com and the ABA Journal.  Respectively, the headlines are:

  • “Judge told Alabama defendant ‘I’ll bust your ass’ complaint alleges.”
  • “Judge is accused of threatening to bust butt of traffic defendant, claiming she likes to ‘flim-flam’ people.

Cutting to the chase: the conduct complaint filed against the judge by Alabama’s Judicial Conduct Commission is here.

From the headlines, and the fact that the judge has been charged, I suspect you’ve already reached the same conclusion as I: it is unlikely history will reflect as kindly on this Alabama courtroom scene as it does on those in To Kill a Mockingbird and My Cousin Vinny.

Here’s what happened.

In 2018, Kimberly Farranto’s car was hit while parked at the restaurant where she worked.  The driver fled, but Farranto was able to determine from a credit card receipt that a passenger’s last name was “Price.” She was not able to determine who was driving.

Flash forward to February 2020.

Farranto appeared in court on a charge of driving with a suspended license.  Waiting for her case to be called, she noticed that the judge’s last name was “Price.” Apparently using her cell phone to investigate, she learned that the judge was likely the father of the passenger in the car that hit hers. Once her case was called, Farranto asked the judge if the passenger was his son.  When the judge answered “yes,” Farranto asked the judge to recuse himself.  When asked why, Farranto told the story and explained that she might sue the judge’s son to provide the name of the driver.

In the end, the judge recused himself.  It’s the colloquy along the way that is relevant to this post.  For a full description, read paragraphs 13-24 of the conduct complaint.  Among other things, the complaint alleges:

  • “Judge Price interrupted Ms. Farranto and was very very angry. He screamed at her that, if she went after his son, he would ‘sue her ass.’”

Then,

  • “Continuing in a loud voice, Judge Price responded ‘Oh yeah, I know who you are. You’re the lady who likes to flim-flam people.’”[i]

Later, after being told that Farranto might sue his son:

  • “Judge Price yelled at her threateningly. ‘If you sue my son, I will bust your ass.’ Judge Price’s face was very red.”

As, the “discussion” continued:

  • “Judge Price yelled at Ms. Farranto, ‘You’re a G*d D**n liar.”

It went on from there, with more of the same. Eventually, the judge gave Farranto both the driver’s name and a new court date with a different judge.

I am not aware of a Vermont judge ever reacting like this.  Still, lawyers, let’s use it as a teachable moment.  If this were to happen to you, how should you respond?

The answer: exactly as Ms. Farranto did.

Rule 3.5(d) of the Vermont Rules of Professional Conduct prohibits discourteous conduct that is degrading or disruptive to a tribunal.  A comment to the rule states that “[a] lawyer may stand firm against abuse by a judge but should avoid reciprocation; the judge’s default is no justification for similar dereliction by an advocate.”

According to the conduct complaint, “[throughout the entire exchange . . . Ms. Farranto did not get upset, raise her voice, or act rudely.”  In other words, it appears that Farranto stood firm without reciprocation or similar dereliction. That is, while she disagreed with the judge’s behavior, Ms. Farranto was not disagreeable in response.

Nor am I aware of any matter in which a Vermont judge presided over a hearing at which a litigant indicated an intent to sue the judge’s child.  Judges, if that happens, here’s a primer on judicial recusal.  I suggest the ABA approach instead of Judge Price’s.  Again, the maxim matters: when it comes to recusal, you may disagree with the request, but you should not be disagreeable in response.

Which brings me to my favorite line in this unfortunate episode.

After Ms. Farranto left the courtroom, Judge Price said to the Chief Magistrate, “Ms. Roberts, I think I might have lost my cool.”

The Chief Magistrate replied, “You think?”

And Scene GIFs - Get the best GIF on GIPHY

[i] Until reading this, I did not know what “flim-flam” meant or that it could be a verb.  Per Dictionary.com, when used with an object, “flim-flam” means “to trick, deceive, swindle or cheat.”

Let’s Light Some Candles

Here’s a quote to ponder as you read this post.  At the end, I’m going to ask you to remember it.

“A candle loses nothing by lighting another candle.”

~ James Keller

candle

Next week is Well-Being Week in the Law.  A project of the Institute for Well-Being in the Law, one of the goals is to provide resources that will help lawyers & legal employers to bolster well-being throughout the year.  As the infographic at the bottom of this page shows, each day has a different theme, with each theme a component of overall well-being.

The Institute’s website includes a plethora of ideas for individuals and organizations to participate in Well-Being Week.  In a way, the plethora can be dizzying.  The tools & suggestions run the gamut from desk yoga to this Alcohol Use Policy Template for Legal Employers.

Indeed, the more I learn, the more I’m convinced that while the profession must prioritize the wellness and well-being of its members, it’s not one-size-fits-all.  Each member’s journey to wellness and well-being will be along the path of their choosing.

For instance, Monday’s theme is “Stay Strong” and is intended to focus on physical well-being.  I tend to my physical well-being by running as often as possible and doing yoga 2 or 3 days per week.  Yet, having a 5K on Monday wouldn’t necessarily benefit someone who prefers biking (or walking, hiking, or swimming) and occasional breathing exercises.

The same goes for emotional, spiritual, and social well-being.  To each their own.  The square peg does little for the round hole’s well-being.

In short, I’m not holding a 5K Monday.  Rather, I encourage everyone to take a few minutes on Monday to consider how you might improve your physical well-being over the course of the year, or how your firm or office might do the same for all who work there. Then, throughout the week, do the same for each of the daily themes.

Here’s where I might be able to help.

Next week, I’ll open a Zoom meeting everyday at noon.  All are welcome.  Whoever joins, we’ll share thoughts and ideas on the day’s theme.  Take what works for you, leave the rest. All I ask is that you come ready to share.  I’ll get each discussion started, but they will remain discussions, not lectures.  You can email me for the links, and I’ll include them in the daily blog posts that tee up each discussion.

The schedule:

  • Tuesday, May 5. Align: Spiritual Well-Being.  We will share ideas related to aligning our work with our values, enabling ourselves to find meaning and purpose in what we do.
  • Wednesday, May 6. Engage & Grow: Occupational and Intellectual Well-Being.  We will share ideas on how to continuously learn and develop, within the legal profession and, as importantly, outside the law.
  • Thursday, May 7. Connect: Social Well-Being. We will share ideas on the importance of forging connections that help us to build communities and support networks.
  • Friday, May 8. Feel Well: Emotional Well-Being.  We will share ideas related to emotional intelligence and learning to identify how our emotions impact us.

You’ll note that I’ve not provided a link for Monday.  That’s because Monday’s focus is physical well-being.  Instead of logging at noon, go for a walk! Or turn off your devices for 15 minutes and do nothing!  Tech breaks help to improve physical well-being!

Again, my goal is to promote the concepts of well-being and wellness. How you go about it is up to you.

That said, here again is the quote:

“A candle loses nothing by lighting another candle.”

~ James Keller

On wellness and well-being, many of you are candles burning brightly.  Next week, consider joining to share your thoughts and ideas. You might light another.

candle

Wellness . . . umm, Thursday?

Yeah, yeah, yeah.

I get it, I’m a day late.  Story of my life.

However, wellness & well-being have meaning even without alliteration.

wellness

I continue to feel my way into my role in the new Bar Assistance Program.

On the one hand, I’m comfortable responding to inquiries and presenting CLEs on so-called “traditional ethics.”  That is, conflicts of interests, client confidences, the trust accounting rules, and duties owed to opposing counsel and parties. My comfort a function of having worked in the Professional Responsibility Program since 1998.

On the other, wellness & well-being remain oddly new to me.  I say “oddly new” because it has been more than five years since my first blog post related to lawyer wellness. It’s a post in which I reported on the study in which the American Bar Association and the Hazelden Betty Ford Clinic found “substantial and widespread levels of problem drinking and other behavioral health problems in the U.S. legal profession.”  Since then, I’ve posted more than 50 additional blogs related to well-being & wellness, with the topics ranging from attorney suicide in Vermont, to Vermont lawyers who ran a 4-mile race that gave out cool hats, to everything in between.

Two things strike me as BAP begins.

First, like beauty, wellness & well-being are in the eye of the beholder. To some, BAP’s focus should be on assisting legal professionals to address substance abuse & mental health issues that are impacting their ability to do their jobs daily.  To others, the focus should be proactive.  Encouraging legal professionals and legal employers to change the profession to one that values and prioritizes work-life balance.

Second, BAP won’t please everyone.  Some who appreciate the proactive approach are tired of me posting blogs in which I argue that the profession is under pressure because we are literally killing ourselves.  This group includes people who’ve told me that highlighting the negative contributes to their personal stress and anxiety.

Meanwhile, some who favor a BAP that hones in on treating lawyers who are in crisis find frivolity in wellness posts that call attention to legal professionals who are in bands or who play hockey, or posts in which I suggest that a strategy to deal with stress is to take a deep breath and slow down.  Members of this group have suggested that this is a “rainbows & unicorns” approach that diminishes the crisis.

To me, BAP will occupy a spectrum.

When confronted with a legal professional gripped by addiction or serious illness, we will work to assist that person back to health without involving the disciplinary process. At the same time, I will continue to remind lawyers that it’s okay to have interests outside the law, to take a mindfulness class at lunch, or to set boundaries as to when they will be available to clients. Who knows?  Maybe I’ll even organize a summer run/walk followed by grills, lawn chairs, and legal ethics, pub quiz style.

So, yes, BAP is here for each group.  And the middle.

Last night, I found Sam Rosenthal’s Lawyer Wellness and Mental Health: Changing the Conversation on Clio’s blog.  This paragraph:

  • “In its purest form, wellness involves doing whatever you need to do to feel better and be healthier on a day-to-day basis. There is no one-size-fits-all approach to achieving a general sense of well-being and overall health, and anyone who claims otherwise is selling you something.”

I’m not selling anything.  Rather, BAP is here to promote well-being, decouple assistance from discipline, and, however incrementally, make the profession healthier.

It’s a big tent.  Welcome in.

Leaving your law firm? What not to do.

This should serve as a cautionary tale for lawyers planning to leave their firms.

Earlier this month, the Supreme Judicial Court of Massachusetts held that lawyers who took proprietary information from their firm before leaving to start their own could be liable for unfair and deceptive business practices.  The opinion is here.  The ABA Journal, Holland & Knight, and the Boston Business Journal (sub. req.) reported the story.

I’ve previously blogged on the duties when a lawyer departs a law firm.

The update references ABA Formal Advisory Opinion 489: Obligations Related to Notice When Lawyers Change Firms.

My prior posts assumed a relatively amicable transition.  The Massachusetts case involved something different.

The Governo Law Firm (GLF) focuses on insurance defense in asbestos litigation. In 2016, several non-equity partners planned to offer to buy the firm while simultaneously preparing to leave the firm to start their own.

In October, they defendants surreptitiously downloaded materials from GLF’s computers to thumb drives. Per the Court’s opinion, “the materials copied included three different types of information: a research library, databases, and administrative files.”  The non-equity partners snuck the thumb drives out of GLF.

Then, on November 1, the non-equity partners incorporated a new firm: CMBG3.  On November 18, they made an offer to the founder.  They indicated that they would resign in 30 days if the offer were rejected.  That day, the founder rejected the offer.  Three days later, the non-equity partners started operating their new firm, using the proprietary information they’d taken from the old.

GLF sued, alleging conversion, breach of the duty of loyalty, conspiracy, and violation of Massachusetts’ laws on unfair and deceptive trade practices act.  An expert testified that the purloined information had been built over years at a cost of over $200,000 to the firm “and provided a competitive advantage to GLF over other law firms within the field of asbestos litigation.” Additional evidence established that one of the defendants sent “a text message to another attorney defendant informing the attorney that she should bring a gym bag when she removed materials, in order not to arouse the suspicions of building security.”

A jury returned a verdict of $900,000 for conversion and conspiracy but did not find the defendants liable for unfair & deceptive trade practices.   GLF appealed, arguing that the judge had improperly instructed the jury that it could not consider the defendants conduct prior to leaving the firm in connection with the unfair & deceptive trade practices claim.

The Supreme Judicial Court agreed and remanded the claim for a new trial. The Court noted:

  • “Where an employee misappropriates his or her employer’s proprietary materials during the course of employment and then uses the purloined materials in the marketplace, that conduct is not purely an internal matter; rather, it comprises a marketplace transaction that may give rise to a claim.”

As such, the trial court erred by instructing the jury not to consider the defendants’ pre-departure conduct.

Holland & Knight observed,

  • “This appears to be the first such instance in which a court has deemed this type of improper conduct to implicate liability under a state’s deceptive practices laws, and it potentially opens the door for law firm employers to assert deceptive and unfair business practice claims against departing partners who take proprietary information to their new firms.”

Then, Holland & Knight concluded by offering these “takeaways:”

  • “First, departing attorneys must be careful about what information they take with them. While the legal knowledge and experience acquired by an attorney during their employment will naturally go with the attorney, taking materials developed by or for the firm at the firm’s expense may create risks to the attorney and the attorney’s new firm under consumer protection laws. Second, attorneys’ duties to their firms are broad, and when violated, can lead to significant liability. While the facts of this case are more intense than what we usually see, departing partners frequently engage in misconduct, such as soliciting associates and legal staff or notifying clients of an impending departure. All of the parties involved – the departing attorney, former law firm and new law firm – need to be aware of their rights and liabilities during the transition.”

Indeed.

As always, be careful out there.  Along the way, don’t take information that isn’t yours to take.

What can you take?  Check out my prior posts.

In the meantime, if the information is such that you decide it’s best to sneak it out of the firm in a gym bag, well, there’s a sign.

Caution

Update on the Bart Simpson sanction.

In 40 minutes, I’m presenting a CLE for the Vermont Association of Criminal Defense Lawyers.  I have an update for them.

For those of you who don’t know, the opening to every episode of The Simpsons includes a brief shot of Bart being punished at school. The punishment is always him having to write a sentence over & over on a chalkboard.  The sentence changes each episode.

Bart

Last year, I blogged about the Ohio lawyer who was found in contempt, fined, and ordered to channel his inner Bart Simpson.  Specifically, the court ordered the lawyer to write – legibly – each of the following phrases 25 times:

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

Last Friday, the Ohio Board of Professional Conduct recommended that the Ohio Supreme Court publicly reprimand the lawyer.  The ABA Journal and Cleveland.com covered the story.

As a refresher, the lawyer represented a person charged with felonious assault and domestic violence.  The lawyer became upset that the judge denied his request to give the jury a “self-defense” instruction.  From the Board’s report:

  • “The facts to which the parties have stipulated characterize Respondent’s reaction to the judge’s ruling as staging a protest. The protest consisted of Respondent’s repeated efforts to stop the trial from proceeding, and he told Judge Fuerst that he would sit in the back of the courtroom.  Judge Fuerst ordered Respondent to sit at defense table and be quiet. While the judge was instructing the jury, Respondent left defense table and stood behind a television stand. Respondent admits that, ‘I moved away from the table so it was clear I’m not participating.’ Judge Fuerst stopped instructing the jury and dismissed the jury for a lunch break. The trial later resumed, and the jury returned guilty verdicts for the lesser offense of aggravated assault and domestic violence.”

A few years ago, I outlined Vermont’s disciplinary process, including the manner in which hearing panels decide the sanction to impose. By rule, a panel’s options are:

  • Admonition:(does not identify the lawyer or impact the lawyer’s privilege to practice)
  • Reprimand: (identifies the lawyer, but doesn’t impact the lawyer’s privilege to practice)
  • Suspension: (identifies the lawyer and suspends the lawyer’s privilege to practice for anywhere from 1 day to 3 years)
  • Disbarment: (identifies the lawyer and suspends the lawyer’s privilege to practice for 5 years).

In addition, terms of probation can be attached to any sanction.

To date, no panel has imposed probationary terms that included the Bart Simpson punishment.

Wellness Wednesday: Compassion Fatigue

This is my first wellness post since the new Bar Assistance Program came into existence on April 1.  An aspect of BAP is me providing resources related to well-being in the legal profession.

Today, I intend to do so in two ways.

First, you should have Brian Cuban on your radar.  An attorney, Brian has long been a leading voice on issues related to lawyer wellness, including addiction and recovery. I recommend his book The Addicted Lawyer: Tales of the Bar, Booze, Blow and Redemption. Or, if an entire book (gasp!) isn’t your thing, I recommend Brian’s interview with Rocket Matter and this piece that he wrote for Above The Law.

Second, a few days ago on LinkedIn, Brian shared an article that appears in Canadian Lawyer: How compassion fatigue affects lawyers and what they can do about itLike Brian, compassion fatigue should be on the profession’s radar.

What is “compassion fatigue?”

The ABA has dedicated this page to the topic. Per the ABA:

“Compassion fatigue is the cumulative physical, emotional and psychological effect of exposure to traumatic stories or events when working in a helping capacity, combined with the strain and stress of everyday life.

It’s important to note that compassion fatigue is different than burnout.  While burnout is predictable, building over time and resulting in work dissatisfaction, compassion fatigue has a narrower focus.  Someone affected by compassion fatigue may be harmed by the work they do, experiencing intrusive imagery and a change in world-view.

Compassion fatigue is also known as vicarious trauma, secondary traumatic stress, second hand shock and secondary stress reaction.  Regardless of the term used, compassion fatigue affects those in the helping professions, including the legal profession, and is treatable. Treatment of compassion fatigue may prevent the development of a more serious disorder.”

It was only a few years ago that I first encountered compassion fatigue insofar as it relates to the legal profession. At the time, I was sitting on the Vermont Commission on the Well-Being of the Legal Profession.  Chairing the Commission’s Judge’s Committee, then-judge Cohen raised the issue.  Then, when we published the Commission’s State Action Plan, the Judge’s Committee recommended that we “make available secondary trauma resources for judges, lawyers, court personnel and jurors.”

My sense is that compassion fatigue has spread within the profession during the pandemic.  While I’m no professional, I don’t doubt that each of us has only so much to give.  Thus, not immune to the personal stress and anxiety that has affected everyone over the past year, legal professionals may have grown weary of helping others with theirs.  Truth be told, I’ve had that exact feeling on occasion.

That’s why I think it’s important to understand that compassion fatigue is a thing.  And that it’s a thing that impacts legal professionals.

So, take a minute to review the ABA’s compassion fatigue site  or the Canadian Lawyer article that Brian shared.  Each includes tips on how to recognize the signs & symptoms of compassion fatigue, the risks of not addressing it, and steps to take in response. In particular, I’m a fan of the section in the Canadian Lawyer article sub-titled “How to combat compassion fatigue.”  It reminds me of the attempts that Jennifer Emens-Butler and I have made to remind lawyers that it’s important to find time for things other than the law.

Make time for what matters to you.  Self-compassion will help recharge your efforts to help others.

wellness

Previous Wellness Wednesday Posts

Wellness Wednesday: A message from Justice Eaton

Jessica Burke: “Well People Do”

Wellness Wednesday: Schitt$ Creek and Paddles

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 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

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

Monday Morning Answers #225

Happy Monday!

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

Honor Roll

Answers

Question 1

Which phrase is in a different rule than the others?

  • A.  “the time and labor required.”
  • B.  “reasonably consult with the client about the means by which the client’s objectives are to be accomplished.”
  • C.  “keep the client reasonably informed about the status of the matter.”
  • D  “promptly comply with reasonable requests for information.”

A is one of the factors to determine whether a fee is reasonable. See, V.R.Pr.C. 1.5.  The others are required by V.R.Pr.C. 1.4, the rule that requires lawyers to communicate with their clients.

Question 2

 By rule, what must be paid over to the Vermont Bar Foundation?

Interest & dividends, net of transactions costs, accruing on pooled interest-bearing trust accounts (IOLTAs).  See, V.R.Pr.C. 1.15B(a)(1).

Question 3

A comment to a rule states:

  • “Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact.”

It’s the rule on:

  • A.  Advertising.
  • B.  Truthfulness In Statements To Others.
  • C.  Trial Publicity.
  • D.  Meritorious Claims & Contentions

This is Rule 4.1.  For more, see my post Puffery & The Ethics of Settlement of Negotiations.

Question 4

Fill in the blank. 

A comment to one of the conflicts rules states that “continued common representation will almost always be inadequate if one client _________________.”

  • A.  pays a higher percentage of the lawyer’s fee than the other client.
  • B.  is also a former client of the lawyer’s in an unrelated matter.
  • C.  is the lawyer’s main contact on matters related to the representation.
  • D.  asks the lawyer not to disclose to the other client information relevant to the common representation.

See, V.R.Pr.C. 1.7, Cmt. 31.

Question 5

Who says the United States Supreme Court is always divided?!?!

That certainly wasn’t the situation last week in a case involving a well-known athletic organization. Oral argument suggested that 7 or 8 justices were skeptical (at best) of the organization’s arguments.

The case relates to labor & anti-trust law. That the argument took place in March was timely: it occurred just as the organization’s most-profitable competition, one that generates nearly $1 billion in revenue for the organization each year, was nearing its conclusion.  Oh the madness!

Name the organization.

The NCAA.

Howe On The Court has a great summary of the oral argument here, and the best headline.

NCAA

Five for Friday #225

Welcome to Friday.  And what a beautiful Friday it is!

So, today marks the 225th #fiveforfriday legal ethics quiz.  Given this blog’s relationship with wellness, it’s fitting that 225 falls on such a gorgeous day.

Why?

Because on a day like this, after a long winter and a longer pandemic, it wouldn’t be the worst idea in the world to wrap things up by 2:25 PM, soak in the weather, start the weekend, and improve your state of mind.

Enjoy!

Onto the quiz!

wellness

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

Which phrase is in a different rule than the others?

  • A.  “the time and labor required.”
  • B.  “reasonably consult with the client about the means by which the client’s objectives are to be accomplished.”
  • C.  “keep the client reasonably informed about the status of the matter.”
  • D.  “promptly comply with reasonable requests for information.”

Question 2

By rule, what must be paid over to the Vermont Bar Foundation?

Question 3

A comment to a rule states:

  • “Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact.”

It’s the rule on:

  • A.  Advertising.
  • B.  Truthfulness In Statements To Others.
  • C.  Trial Publicity.
  • D.  Meritorious Claims & Contentions.

Question 4

Fill in the blank.

A comment to one of the conflicts rules states that “continued common representation will almost always be inadequate if one client _________________.”

  • A.  pays a higher percentage of the lawyer’s fee than the other client.
  • B.  is also a former client of the lawyer’s in an unrelated matter.
  • C.  is the lawyer’s main contact on matters related to the representation.
  • D.  asks the lawyer not to disclose to the other client information relevant to the common representation.

Question 5

Who says the United States Supreme Court is always divided?!?!

That certainly wasn’t the situation last week in a case involving a well-known athletic organization. Oral argument suggested that 8 justices were skeptical (at best) of the organization’s arguments.

The case relates to labor law. That the argument took place in March was timely: it occurred just as the organization’s most profitable competition, one that generates nearly $1 billion in revenue for the organization each year, was nearing its conclusion.

Name the organization.

When a client insists that a lawyer advance frivolous claims.

Last year, I ran the “Professional Responsibility Madness” challenge.  Modeled on the “March Madness” brackets associated with the NCAA basketball tournament, I seeded 64 concepts associated with professional responsibility & legal ethics into the bracket.  Round-by-round, lawyers voted.  The concepts (and their category) that advanced to the Final Four were:

  • Candor to the Tribunal (Duties to Others)
  • Former Client Conflicts: Substantially Related? (Conflicts & Confidences)
  • Who Decides? Lawyer or Client? (Duties to Clients)
  • Did you say “Utes?” (My Cousin Vinny)

I was surprised by the interest in “Who Decides? Lawyers or Client?”  Until then, it was an issue rarely raised in ethics inquiries.

Flash forward to 2021.

In the past month, two different lawyers have made inquiries that boiled down to the same question: “what do I when the client insists on presenting a claim that I think is frivolous?”

In short, my position is that the lawyer decides which facts and arguments will be advanced, and that the lawyer, not the client, decides which facts and arguments are frivolous.  Then, if the client insists that the lawyer present frivolous claims, the lawyer must move to withdraw. In responding to each inquiry, I cautioned the lawyers that there is a difference between a frivolous claim and one that has little chance of prevailing.[i]

My position derives from the following rules:

  • Rule 1.2(a), which leaves the objectives of the representation to the client and how those objectives are pursued to the lawyer’s discretion, in consultation with the client;
  • Rule 1.4(a)(5), which requires a lawyer to “consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law;”
  • Rule 3.1, which prohibits a lawyer from bringing a claim or asserting a position “unless there is a basis in law or fact for doing so that is not frivolous;”
  • various provisions of Rule 1.16, most notably Rule 1.16(a)(1), which requires a lawyer to withdraw when continued representation will result in a violation of the rules; and,
  • the general duties of fairness to the opposing party and candor to the court.

Doing some follow-up research, I came across Ethics Opinion 1214 from the New York State Bar Association. Issued January 11, 2021, the opinion answers a question from a lawyer assigned to represent a person who had filed a pro se petition to vacate a judgment of foreclosure.  Upon reviewing the filing, the lawyer concluded that the person lacked a non-frivolous basis in law or fact to vacate the judgement.  The opinion concludes as follows:

  1. The lawyer may not argue or advance frivolous arguments.
  2. If the person insists, the lawyer may move to withdraw pursuant to:
    1. New York’s Rule 1.16(c)(4). The rule permits withdrawal when a “client insists on taking action with which a lawyer has a fundamental disagreement;”[ii] or,
    2. any other rule mandating or permitting withdrawal.
  3. In moving to withdraw, the lawyer must not disclose confidential information.[iii]
  4. If a motion to withdraw is denied, the lawyer must continue to represent the client, but without presenting frivolous claims.

Here’s the key language on the final point.  Even when withdrawal is not allowed, the lawyer:

  • “may still not engage in ‘frivolous conduct’ at the direction or behest of the homeowner. A client has no right to instruct a lawyer to violate a Rules of Professional Conduct, and a lawyer has no right to follow an instruction that the lawyer violate a Rule. Thus, the inquirer must find a means to competently represent the homeowner without putting forth frivolous arguments.”

As always, be careful out there.

[i] I suppose this might be referred to as the “Dumb & Dumber Corollary.”

Dumb and Dumber

[ii] Vermont’s Rule 1.16(b)(4) includes the same language.

[iii] For more on this issue, see my post Stop Making Noise. It discusses the peril of “noisy withdrawal.”