The 238th #fiveforfiday Legal Ethics Quiz

Welcome to Friday and the 238^th legal ethics quiz!

I make mistakes.  And today I’m here to self-report a mistake that I made a year ago.

It was October 30, 2020.  The intro to that fateful Friday’s quiz included my Halloween Candy Rankings.  The list is flawed. Or, in parlance associated with this blog, the list is evidence of my failure to satisfy the duty of competence.

No competent candy ranker would’ve omitted the 100 Grand Bar.

Sadly, I realized my error that very day.  It has eaten at me ever since.  Do not worry about candy shaming me.  I deserve it.

It gets worse.

In my professional world, disciplinary sanctions are imposed against lawyers who violate the Rules of Professional Conduct.  I blogged about the sanctions process here.  In short, depending on the nature of the violation, hearing panels and courts arrive at a “presumptive sanction.”  The ABA Standards for Imposing Lawyer Sanctions make clear that intentional misconduct warrants a more severe presumptive sanction than conduct that is merely negligent.

An argument that the 100 Grand Bar slipped my mind would be unavailing. Indeed, I specifically mentioned it as one of the “toughest omissions.”

It gets even worse.

Per the ABA Standards, depending on the aggravating and mitigating factors, the presumptive sanction can be ratcheted up or made less severe. The relevant aggravating factors are set out in Section 9.22 and include:

• substantial experience in the practice of law; and,
• multiple offenses.

I’ve been eating candy for half a century.  And not only did my rankings omit the 100 Grand Bar, but they also failed to include the Baby Ruth.

I am at your mercy.  I only ask that you keep in mind some mitigating factors.

Per section 9.33 of the ABA Standards, factors that may be considered in mitigation include:

• full & free disclosure of the misconduct; and,
• a timely good faith effort to rectify the consequences of the misconduct.

Today, I’m here of my own free will to disclose my incompetence and to make amends. I submit that my effort is timely.  Indeed, a closer look at last year’s post reveals that I shared my “2020 Halloween Candy Rankings.”  (emphasis added).  What competent blogger would’ve posted updated Halloween Candy rankings between now and then?  Today’s my first chance!

Therefore, my 2021 Halloween Candy Rankings:

• 5.  Krackel
• 4.  Peanut Butter Cup
• 3.  Baby Ruth
• 2.  Peanut M&M’s
• 1.  100 Grand Bar

And now it’s time to end this intro before I’m tempted to argue that my 2020 omissions weren’t violations at all.  After all, another of the aggravating factors is the failure to acknowledge the wrongful nature of one’s conduct.

Happy Halloween and 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 consider sharing the quiz with friends & colleagues
• Share on social media.  Hashtag it – #fiveforfriday

Question 1

 I often blog and talk about the 7 Cs of Legal Ethics.

During a CLE, I began by mentioning the phrases “informed consent” and “impliedly authorized to carry out the representation.”  Next, I contrasted the section of the rule that requires action with the section that permits, but does not require, a lawyer to act.  Finally, just as I began to address the situations in which the rule’s so-called “self-defense” exception applies, your Wi-Fi cut out, the Zoom feed died, and you missed my explanation of the exception.

What C was the topic of the CLE?

Question 2

 Speaking of exceptions, there’s a rule that includes an exception for when a person is seeking a second opinion.  The rule addresses _______:

• A.  conflicts of interest.
• B.  the situations in which a fee agreement must be reduced to writing.
• C.  communicating with a represented person.
• D.  communicating with prospective clients who a lawyer knows or reasonably should know need legal services.

Question 3

 It’s National Celebrate Pro Bono Week.  The pro bono rules include one that creates an exception to the rule(s) that ________:

• A.  prohibits unreasonable fees.
• B.  requires a lawyer to safeguard client property.
• C.  govern conflicts of interest.
• D.  requires a lawyer to keep a client reasonably updated as to the matter’s status.

Question 4

 There’s a rule that includes an exception for “testimony that relates to the nature and value of legal services rendered in the case.”  The rule’s title is ______”

• A.  Duties to Former Clients.
• B.  Lawyer as Witness.
• C.  Fees.
• D.  Candor to a Tribunal.

Question 5 

Candy was the theme of Question 5 only two weeks ago!  Not today. Still, I’ll keep it somewhat related to Halloween.

In 1991, a New York court issued the so-called Ghostbusters opinion.  In it, the court allowed a prospective buyer to rescind a contract to buy a house due to the seller’s failure to disclose a material condition.  Rejecting the seller’s “buyer beware” argument, the court stated:

• “Where, as here, the seller not only takes unfair advantage of the buyer’s ignorance but has created and perpetuated a condition about which he is unlikely to even inquire, enforcement of the contract (in whole or in part) is offensive to the court’s sense of equity. Application of the remedy of rescission, within the bounds of the narrow exception to the doctrine of caveat emptor set forth herein, is entirely appropriate to relieve the unwitting purchaser from the consequences of a most unnatural bargain.”

What did the court fault the seller for failing to disclose to the buyer?

Vermont’s Rules on Handling Flat Fees Paid in Advance of Services Being Provided. With some wellness thrown in.

This post will eventually address Vermont’s rules on handling flat fees that are paid in advance of any legal services being provided.  First, however, I’ll share some thoughts on billing and wellness.

I’ll say again what I’ve said before: I’m a fan of the recommendations made by the Legal Employers Committee in the State Action Plan that the Vermont Commission on the Well-Being of the Legal Profession issued in 2018.  Outlined on page 11 and beginning in full on page 68, the committee’s recommendations provide fantastic and prescient tips for legal employers, both public and private, interested in improving the profession’s wellness.  A few months ago, I posted this endorsement of the committee’s recommendation that employers allow staff to set communication boundaries with clients and opposing counsel.

Another of the committee’s recommendations addressed billable hours.

• “In firms that impose billable hour quotas on attorneys, assess whether and how that quota system may be contributing to unproductive competition, excessive stress, and unhealthy work habits. In large firms, an anonymous survey may be the best way to assess this issue. In smaller firms, it can be done through simple observation. If a quota system appears to be encouraging unhealthy behavior and excessive stress, modify it, eliminate it, or consider alternatives.”

That the billable hour impacts wellness is not news. In 2011, the State Bar of Michigan posted The Billable Hour and Lawyer Wellness.  Responding to the argument that the billable hour is unhealthy in and of itself, the author wrote:

• “It is not. At its root, the problem is one of wellness. Unhealthy lawyers create and perpetuate unhealthy systems. Put simply, the way a healthy lawyer relates to billable hours is much different from the way an unhealthy lawyer does.”

More recently, Law.Com addressed the billable hour’s impact on associates’ health, Above The Law highlighted one large law firm’s attempt to improve work-life balance by reducing the billable hour requirement, and Attorney At Law warned that encouraging/providing vacations means nothing absent a reduction in billable hours.

One alternative to hourly billing is a flat fee.

Again, today’s focus is on how to handle flat fees.  Still, for anyone considering the model, Clio has 5 Ways Flat Fee Attorneys More and How To Determine The Price Of Flat Fee Legal Services.  Meanwhile, Attorney at Work has Flat Fee or Hourly? Pros and Cons of Lawyer Billing Options.

So, you’ve decided to use flat fees.  Consider:

• Mike Kennedy retains you. You agree to handle Mike’s matter for $ X. Prior to you doing any work, Mike advances $ X.

Now what?

At the beginning of this post, I promised eventually to address Vermont’s rule. Well, since then I got distracted and am only now back to fulfill my promise.  Alas, in the interests of time and needing to run to the store to get some half & half for this morning’s coffee[1], I’ll resort to an old blogger’s trick:  here’s my post on how to handle flat fees that are paid in advance of services being provided.

As always, be careful out there.

[1] Jennifer & Laura: the carton says “October 27.”  You know how I am.

Emoji Law Update: Lawyer & Client Sanctioned For Submitting Fabricated Evidence.

In July, I posted Emojis and the duty of competence.  In it, I suggested that an aspect of competence is understanding that emojis have meaning.  Or, as Olga Mack pointed out in Bloomberg Law’s Emojis and Visual Literacy: A Guide for Lawyers, emojis are language and, as it always has, competent representation includes interpreting, explaining, and contextualizing language that affects your clients’ matters.

Some pushed back on my post.  A few lawyers emailed me to argue that it’s unreasonable to expect them to know what emojis mean.  I disagree.  “Emoji law” has been a thing for quite some time. For example, in 2017 and referring to a case in which a court concluded that emojis can convey intent, Vermont’s own Ed Adrian tweeted:

Welcome to the emerging field of #EmojiLaw 😎https://t.co/RSRPmpdT3t

— Ed Adrian (@CounselorAdrian) August 7, 2017

Today, I’m here to share a recent case in which the defendant in a sexual harassment case is probably pretty danged relieved that the defense team acted competently.  While the tech competence on display involved much more than understanding an emoji, the case should serve as a cautionary tale for any lawyer who takes the position “I don’t need to know about smiley faces and thumbs.”

Plaintiff used to work at a medical center.  Plaintiff informed management that Supervisor had sexually harassed Plaintiff.  Management fired Plaintiff.  Plaintiff sued, alleging that management retaliated against Plaintiff for complaining about Supervisor. This summer, United States District Court Judge Denise Cote issued an opinion dismissing the case with prejudice and imposing monetary sanctions against both Plaintiff and Plaintiff’s attorney.  Among others, eDiscovery Today, the Technology & Marketing Law Blog, and the ABA Journal reported the story.

The opinion includes an image of text messages that Plaintiff claimed to have received from Supervisor.  One of messages included the so-called “heart eyes” emoji: 😍.  The court described the image as “the primary piece of evidence that [Plaintiff] was harassed by [Supervisor].”  Then, the court inserted the image and wrote “[t]his image is a fabrication.”

Cutting to the chase, defense counsel’s forensic examination of the image determined that it could not have been received on the iPhone on which Plaintiff claimed to have received it.[1]  Among other things, Plaintiff’s iPhone’s operating system would not have displayed the “heart eyes” emoji as it appeared in the image.[2]

In July’s post, I quoted Kevin Lumpkin.  Kevin regularly appears on this blog’s #fiveforfriday legal ethics Honor Roll.  Kevin proved prescient on emojis & tech competence, including by stating “[t]he real trick is to put a potentially misleading emoji in context.”

Indeed.

My final thought will make some of you 😡.

When it comes to competence, there will be many situations in which “I don’t do emojis” won’t cut it.

[1] From a tech competence/eDiscovery perspective, don’t cut to the chase.  The opinion is worth reading.  Defense counsel’s tech competence involved understanding much more than a single emoji.

[2] In the eDiscovery Today post on this case, Doug Austin points out that Emojipedia shows what emojis look like on different platforms and in different versions of each.  The post includes pictures of how each of Apple’s operating systems depict the “heart eyes” emoji.

Pro Bono: a celebration and FAQs

As Kool and the Gang sang, it’s time to celebrate!

Celebrate pro bono, that is.

Yes, it’s National Celebrate Pro Bono Week.  On this page, ABA President Reginald M. Turner shares a brief message on this year’s theme: Moving Forward in a Post-Pandemic World.  The pandemic has only increased the need to ensure access to legal services.

Now, disclaimer: I serve as the chair of the Vermont Bar Association’s Pro Bono Committee. Still, there’s an entire section of the Rules of Professional Conduct dedicated to pro bono. So, it’s a topic that’s eminently appropriate for this blog.  I thought I’d mark the occasion by sharing the more common questions I receive about pro bono.

Also, it’s apropos that this post falls on a Wednesday.  More on that at the end of the post.  First, the FAQs.

What’s the rule?

It’s Rule 6.1:

“Every lawyer has a professional responsibility to provide legal services to those unable to pay.  A lawyer should render at least 50 hours of pro bono publico legal services per year.  In fulfilling this responsibility, a lawyer should

(a) provide a substantial majority of the 50 hours without fee or expectation of fee to:

(1) persons of limited means; or

(2) charitable, religious, civic, community, governmental, and educational organizations in matters which are designed primarily to address the needs of people with limited means.”

The remainder of the 50 hours can be satisfied in any of the ways outlined in Rule 6.1(b).

Who qualifies as a “person of limited means?”

• See, Rule 6.1, Comment [3] (“Persons eligible for legal services under paragraphs (a)(1) and (2) are those who qualify for participation in programs funded by the Legal Services Corporation and those whose incomes and financial resources are slightly above the guidelines used by such organizations but nevertheless cannot afford counsel.”

My client didn’t pay, that’s pro bono, right?

• Wrong.  Rule 6.1(a) is clear:  a “lawyer should provide substantial majority of the 50 hours of legal services without fee or expectation of fee . . ..”
• Comment [4] drives home the point: “Because services must be provided without fee or expectation of fee, the intent of the lawyer to render free legal services is essential for the work performed to fall within the meaning of paragraphs (a)(1) and (2).  Accordingly, services rendered cannot be considered pro bono if an anticipated fee is uncollected . . ..”

I’m a government attorney, so I don’t have to do pro bono.

•  False.  Rule 6.1 applies to all lawyers.  Comment [5], however, recognizes that government lawyers may not be able to satisfy the requirements of Rule 6.1(a) and, therefore, should be allowed to satisfy the pro bono requirement via provision of services set out in Rule 6.1(b).

Ok Mike, I’m doing pro bono work, what other rules apply?

• ALL OF THEM!  You must be competent & diligent.  You can’t communicate with a represented person on the subject of the representation without counsel’s consent.  You can’t lie.  In short, pro bono work is not a license to act unethically.

What about the conflicts rules?

• Rule 6.5 relaxes the conflicts rules IF a lawyer provides:
  • short-term limited legal services
  • under the auspices of a program sponsored by a nonprofit organization or court
  • without expectation by the lawyer or the client that the lawyer will provide continuing representation in the matter.
• If each of these is present, the conflicts rules apply only if the lawyer KNOWS of a conflict.  In other words, if the 3 conditions are met, a lawyer does not have to do a conflict check prior to commencing the representation.  See, Rule 6.5, Comment [1] (“Such programs are normally operated under circumstances in which it is not feasible for a lawyer to systematically screen for conflicts of interest as is generally required before undertaking a representation.”

How can I learn about pro bono opportunities?

Mary Ashcroft is the Vermont Bar Association’s Legal Access Coordinator and is an excellent resource.  Also, here’s a list of pro & low bono programs.  Pressed for time?  Vermont Free Legal Answers is a way to provide pro bono assistance without leaving your home or office.  Finally, Sam Abel-Palmer is the Executive Director of Legal Services of Vermont.   LSV collaborates with the VBA to run the Vermont Volunteer Lawyers Project.

Finally, it’s Wellness Wednesday.  What’s that got to do with pro bono?  I’m glad you asked.

Eileen Blackwood is a former president of the VBA and former chair of the Pro Bono Committee. Twice a year, Eileen and I present a seminar for new lawyers.  I open by discussing professional responsibility, then Eileen Blackwood homes in on the pro bono opportunities.  Over the past few presentations, we’ve used “wellness” as segue from my presentation to Eileen’s.  Specifically, Eileen has made it a point to mention that one of the most rewarding cases of her career was one that she took pro bono.  While Eileen says it better than I can, the reward is the positive feeling that comes from having helped someone who desperately needed it, for no other reason than because you could.

Wellness indeed.

Thanks for considering pro bono!

Monday Morning Honors #237

Happy Monday.

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

Honor Roll

• Karen Allen, Karen Allen Law
• Matthew Anderson, Pratt Vreeland Kennelly Martin & White
• Evan Barquist, Montroll Oettinger & Barquist
• Penny Benelli, Dakin & Benelli
• Alberto Bernabe, Professor of Law, University of Illinois Chicago
• Andrew Delaney, Martin Delaney & Ricci
• Benjamin Gould, Paul Frank + Collins
• Robert Grundstein
• Glenn Jarrett, Jarrett & Luitjens
• Deb Kirchwey, Law Office of Deborah Kirchwey
• Jeanne Kennedy, JB Kennedy Associates, Mother of the Blogger
• John Leddy, McNeil, Leddy & Sheahan
• Pam Loginsky, Deputy Prosecutor, Pierce County (WA) Prosecutor’s Office
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Jeffrey Messina, Messina Law
• Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
• Keith Roberts, Darby Kolter & Roberts
• Jonathan Teller-Elsberg, Sheehey Furlong & Behm
• The Honorable John Valente, Vermont Superior Judge
• Jason Warfield, Esq.
• Jack Welch, Esq.
• Thomas Wilkinson, Cozen O’Connor
• Zachary York, Legal Assistant, Sheehey Furlong & Behm

 Answers

Question 1

 I often blog and talk about the 7 Cs of Legal Ethics.

With respect to one of the Cs, a comment indicates that the applicable rule “sets forth the special duties of lawyers as officers of the court to avoid conduct that undermines the integrity of the adjudicative process.”

Which C?

CANDOR TO A TRIBUNAL.  V.R.Pr.C. 3.3, Cmt. [2]

Question 2

Which involves a different rule than the others?

• A.  don’t state or imply that you’re disinterested.
• B.  the new matter is the same as or substantially related to the matter in which you represented the person.
• C.  if the person misunderstands your role, correct the misunderstanding.
• D.  if the person’s interests are likely to conflict with your client’s, don’t give the person any legal advice other than the advice to secure counsel.

 B is the correct answer because it is part of Rule 1.9(a)’s analysis of former client conflicts.  A, C, and D are part of Rule 4.3’s duties when dealing when an unrepresented person.

 Question 3

 There’s a rule that prohibits lawyers from making false or misleading statements about their services.

Can truthful statements that are misleading violate the rule?

• A.  No.  Truth is an absolute defense, no matter how misleading it might be.
• B.  Yes, if they omit a fact that is necessary to make the statement considered as a whole not materially misleading.

 V.R.Pr.C. 4.1.

Question 4

There’s a rule that includes an exception for an “insurance company . . . licensed to do business in the Vermont.”  This week, a lawyer emailed to ask me if I thought a particular company qualified as an “insurance company” and, therefore, that the exception applied.

The rule in question deals with:

• A.  Safekeeping Property/Trust Accounting
• B.  Conflicts of Interest
• C.  Communicating with a represented person
• D.  The Unauthorized Practice of Law

V.R.Pr.C. 1.15(f) prohibits lawyers from disbursing from trust without “collected funds.”  The exception in V.R.Pr.C. 1.15(g)(5) allows lawyers to disburse in reliance upon the deposit of a check issued by an insurance company that is licensed to do business in Vermont.

 Question 5

 In the intro I mentioned candy, intellectual property, and trademark infringement suits.

In late August, a California cookie company filed a trademark suit against a candy maker.  The lawsuit focuses on the shape of one the candy maker’s most famous products.  While most of us know the product as a tiny treat, the largest ever made weighed in at 30,540 pounds. Created in 2007, it was displayed in Pennsylvania to celebrate the candy maker’s 100^th anniversary.

Name the candy maker and the product that is the subject of the trademark suit.

Hershey’s Kisses.   Lancaster Online and Lexology are among the outlets reporting the story.

 

 

 

Five for Friday #237

Welcome to Friday and the 237^th legal ethics quiz.

In the intro to the last quiz, I invited readers to participate in this blog’s first ever moot court-style competition. I posted my favorite responses here.

Last night, as I researched today’s introduction, I thought I’d found the subject matter for this blog’s second ever moot court-style competition, one that would require participants to act as lawyers in an intellectual property/trademark infringement case.  That’s because I learned that tomorrow is Sweetest Day 2021.

Personally, it was a literal discovery.  I’d never heard of the holiday.  The Cincinnati Enquirer reports that the holiday “is celebrated on the third Saturday in October [and is] touted as a way to share romantic deeds, expressions, acts of charity and kindness.” According to Wikipedia, the first took place in 1921 after a group of candy makers “concocted” a holiday in which people gave candy to others.

Initially, my spidey sense tingled.

“Hmm, I think I’ve heard of something like this before.  Mike, wait! This is nothing but Valentine’s Day repackaged for October!”

From there sprouted the idea of another moot court competition.  One in which readers could choose to represent either Valentine’s Day or Sweetest Day in the inevitable trademark infringement suit.  Surely some readers would’ve opted to champion Valentine’s Day and crafted sterling arguments in favor of an immediate injunction banning any observation of Sweetest Day.

Then I did some more research.

Per the National Day Calendar (and other sources not linked here), yes, the day includes “candy and treat for our sweethearts.”  Nevertheless, the holiday is more than that.  It “encourages everyone to be generous even in the smallest of ways” and “reminds us that even small tokens improve the lives of those around us.”  That is, even the smallest of gestures can help those in the greatest need.  Which is exactly what I was getting in “Ask the question” when I urged us to remember that, sometimes, “are you alright?” is all that it takes to improve another’s wellness.

So, with a better understanding of the meaning of Sweetest Day, I decided to cancel the moot court competition and to dismiss the trademark suit filed by Valentine’s Day.  Because high on the profession’s list of things to avoid should be “arguing against small acts of kindness.”

In my posts and CLEs on client confidences, I often steal a line from Thomas Edison and remind lawyers that we should take advantage of every opportunity to keep quiet.  The lesson struck me as I thought about Sweetest Day.

These days, the profession could use a little Sweetest Day. Whether today, tomorrow, or whenever, each of us will have opportunities for small, kind gestures, even towards people who haven’t been too kind to us.

We should take advantage of them all.

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

Question 1

 I often blog and talk about the 7 Cs of Legal Ethics.

With respect to one of the Cs, a comment indicates that the applicable rule “sets forth the special duties of lawyers as officers of the court to avoid conduct that undermines the integrity of the adjudicative process.”

Which C?

Question 2

 Which is part of a different rule than the others?

• A.  don’t state or imply that you’re disinterested.
• B.  the new matter is the same as or substantially related to the matter in which you represented the person.
• C.  if the person misunderstands your role, correct the misunderstanding.
• D.  if the person’s interests are likely to conflict with your client’s, don’t give the person any legal advice other than the advice to secure counsel.

 Question 3

 There’s a rule that prohibits lawyers from making false or misleading statements about their services.

Can truthful statements that are misleading violate the rule?

• A.  No.  Truth is an absolute defense, no matter how misleading it might be.
• B.  Yes, if they omit a fact that is necessary to make the statement considered as a whole not materially misleading.

Question 4

 There’s a rule that includes an exception for an “insurance company . . . licensed to do business in the Vermont.”  This week, a lawyer emailed to ask me if I thought a particular company qualified as an “insurance company” and, therefore, that the exception applied.

The rule in question deals with:

• A.  Safekeeping Property/Trust Accounting
• B.  Conflicts of Interest
• C.  Communicating with a represented person
• D.  The Unauthorized Practice of Law

Question 5

 In the intro I mentioned candy, intellectual property, and trademark infringement suits.

In late August, a California cookie company filed a trademark suit against a candy maker.  The lawsuit focuses on the shape of one the candy maker’s most famous products.  While most of us know the product as a tiny treat, the largest ever made weighed in at 30,540 pounds. Created in 2007, it was displayed in Pennsylvania to celebrate the candy maker’s 100^th anniversary.

Name the candy maker and the product that is the subject of the trademark suit.

 

Wellness Wednesday: Ask the question.

When it comes to attorney wellness, I do not doubt that most lawyers and legal professionals want to help those in need.  In that respect, we’ve come a long way from the days when we convinced ourselves “that person’s issues are none of my business.”

No, I don’t think we continue to ask ourselves “should I help?”  Instead, from personal experience and stories shared by other legal professionals, my sense is that we now tell ourselves “I want to help, but I have no idea what to do.  So, I probably should stay out of it so that I don’t make it worse.”

Fortunately, the folks at the Institute for Well-Being in the Law are here to help us to help others.

The Institute has created Managing Mental Health in the Workplace: A Challenging Conversations Guide.  I recommend it for anyone wondering how and where to begin.

The Guide begins by sharing 11 tips on how to approach a colleague.  I like them all, especially the first and last.

Recognizing that we’re often unsure whether to reach out, Tip 1 urges us to trust our instincts and to “err on the side of checking on the person.”  Meanwhile, Tip 11 echoes a point I’ve learned from experts in the wellness community: sometimes the best thing to do is to ask, “are things okay?”  As the Guide points out by quoting an anonymous person:

• “What made a huge difference was being asked if I was okay – simple as that.”

From there, the 4-page Guide includes:

1. Signs It May Be Time To Have A Conversation.
2. Conversation Checklist.
3. Questions/Statements That May Help.
4. Questions To Encourage Action.
5. Questions/Statements To Avoid.

And more.

Again, I’m no expert and I’m often reluctant to help and even more clueless how to do so.  But thanks to resources like the Guide and the people who published it, I’ve learned a few things, including that sometimes a simple “are you okay” is all that it takes.

Ask the question.

And, when you do, remember that if the person’s response is “no,” that’s okay too.

Because it’s okay not to be okay. Help is available.

Previous Wellness Wednesday Posts

Yes, wellness includes the results of my first moot court competetion

Wellness Wednesday:  It’s okay to ask for help.  Bar Assistance will listen and support you

Wellness Wednesday: Set communication boundaries with clients and opposing counsel

Wellness Wednesday: Compassion Fatigue

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

New Jersey approves remote work by lawyers who live in NJ but who are not admitted there.

Yesterday I blogged about Redesigning Legal, a project dedicated to rethinking and redesigning the attorney regulation system.  The project includes looking anew at the definition of the “unauthorized practice of law.”  With that in mind, I’m happy to report that yet another jurisdiction has concluded that lawyers who work remotely from a state in which they are not admitted do not necessarily engage in the unauthorized practice of law.

Last week, New Jersey’s Committee on the Unauthorized Practice of Law joined with the Advisory Committee on Professional Ethics to issue Joint Opinion 59/742.   Lexology’s Professional Responsibility Blog reported the opinion.

The committees framed the issue as follows:

• “Many non-New Jersey licensed lawyers have called the attorney ethics research assistance hotline with questions about whether they would be considered to be practicing New Jersey law if they work remotely from their New Jersey homes for law firms, or as in-house counsel for companies, that are located out-of-state.”

The committees concluded that:

• “Non-New Jersey licensed lawyers may practice out-of-state law from inside New Jersey provided they do not maintain a ‘continuous and systematic presence’ in New Jersey by practicing law from a New Jersey office or otherwise holding themselves out as being available for the practice of law in New Jersey.”

With the opinion, New Jersey joins the conclusion reached by a growing number of jurisdictions.[1]

How might this work in real life? Well, I think it’d be something like this.

My father lives in North Carolina. Let’s say that I decided to spend the winter there.[2]  Assuming my bosses approved, if North Carolina takes the same view as the ABA, New Jersey, Florida, Utah, Maine, and Pennsylvania, I’d be able to continue doing my job without getting admitted in North Carolina so long as I don’t hold myself out as practicing there or otherwise establish a continuous and systematic professional presence there.  On this point, I’m a big fan of statements of two statements.

The first appears in ABA Formal Opinion 495.  For UPL purposes, lawyers do not “hold themselves out to the public” when they are “for all intents and purposes invisible as a lawyer to a local jurisdiction where the lawyer is physically located, but not licensed.”  Invisible is how I prefer to roll.

The second, which is my favorite, appears in Utah State Bar Opinion 19-03. Referencing an Ohio decision that was on point, the Utah State Bar asked:

• “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.”

Finally, while not today’s topic, the NJ opinion and others like it remind me of attorney wellness.

For some, working from home helps with wellness and work-life balance. Imagine a lawyer who is licensed in New Hampshire, has a New Hampshire office, and who practices only New Hampshire law.  Further imagine that the lawyer lives in Vermont but is not admitted here. Finally, imagine that the lawyer prefers to work from home a few times a week.

What should we care as long as the lawyer doesn’t do anything to suggest that the lawyer has a Vermont office, practices Vermont law, or is willing to provide legal advice on Vermont matters?  The lawyer remains subject to New Hampshire’s disciplinary jurisdiction for all of lawyer’s New Hampshire matters. So, there’s no risk to consumers, to the Vermont legal system, or to the Vermont legal profession. By understanding and accepting that, perhaps we help the lawyer to look out for their own wellness.

Rethink. Redesign.

[1] Bar Association of San Francisco Opinion 2021-1; Florida Supreme Court and Florida Bar (2021); Pennsylvania Bar Association & Philadelphia Bar Association Opinion 2021-100; ABA Formal Opinion 495 (2020); District of Columbia Opinion 24-20 (2020); Utah Ethics Opinion 19-103 (2019); Maine Ethics Opinion 189 (2005)

[2] Mom – this is a HYPOTHETICAL for learning purposes only.

Rethinking & Redesigning Attorney Regulation

Wednesday I’m on a panel that is part of the VBA’s Annual Meeting.  Laura Wilson, Ian Carleton, and I will present Wellness Tips for Legal Employers.  Laura and Ian co-chaired the Legal Employers Committee of the Vermont Commission on the Well-Being of the Legal Profession.  Their committee’s recommendations are fantastic and will serve as the outline for our seminar.

Anyhow, there was a time when a CLE on attorney wellness was big news.  Not anymore.  These days wellness is part of the Vermont legal profession. Thank goodness.  Alas, I’ve not been as successful gaining traction on reforming the way that we regulate lawyers.

In May 2016, I posted as series of blogs on Alternative Business Structures (ABS).  My goal was to spark debate over whether to amend Rule 5.4 of the Vermont Rules of Professional Conduct to drop the prohibition on nonlawyer ownership of and investment in law firms.  It didn’t take.

But now I’m back!

Nationally, “reregulation” is a movement that aims to rethink attorney regulation.   The goal is to consider whether the current regulatory structure unnecessarily limits both innovation and access to legal services.  Stated differently, are there regulatory changes to be made that will increase access to legal services without compromising consumer protection?

Several groups are leading the discussion.  One is the Institute for the Advancement of American Legal System. I’ve had the good fortune to get to know some of the folks at IAALS through their Unlocking Legal Regulation project.  Another is the American Bar Association’s Committee on the Delivery of Legal Services.  The committee’s current chair is none other than Vermont’s own Fritz Langrock.

Earlier this year, IAALS, the Delivery Services Committee, and others started the Redesigning Legal Speaker Series.  The series provides “a forum to learn about and discuss the regulatory changes underway, the challenges they face, and the opportunities they provide.”  To date, the series has included:

• Leading from the Bench: Expanding Access through Regulatory Innovation
• Legal Tech: Using to Build Sustainable Practices & Expand Legal Services

So far, the series has been terrific.  The seminars provide an easy introduction to the reregulation discussion.  Next week the series risks jumping the shark: the organizers decided to include me on the panel tasked with discussing Lawyer UPL: Has it Jumped the Shark?  Anyhow, I intend to use the series as a road map to drive discussion in Vermont.

For now, practicing lawyers might be wondering “Mike, consumer protection and access to legal services are great, but what’s in it for me?”

Good question.  Here’s my answer.

Arizona was the first state to repeal the ethical prohibition on nonlawyer ownership.  In a recent edition of GPSolo Magazine, Arizona Supreme Court Justice Anne Zimmer shared Regulatory Reform: What’s in it for me?  It’s worth a read. As is an article that ran in the same issue.  Andrew Arruda’s Let’s Stop Cutting Off Our Noses: How Reregulation Benefits Lawyers.

In closing, today’s post is but a (re)-opening salvo.  This time, I’m not going to give up.

Stay tuned.

ABA issues guidance on a lawyer’s obligations regarding language access in a lawyer-client relationship.

I used to serve as an acting judge in Chittenden Small Claims Court.  I once presided over a landlord-tenant dispute.  The tenant was represented, the landlord was not.  Neither party’s first language was English.  The tenant was fluent in English and able to communicate clearly with counsel and me.  The landlord was not at all comfortable with English and I did not know a single word of the party’s shared native language.  So, I had an interpreter present.

The hearing went fine.  Still, it left me wondering.

As bar counsel, I’m quite familiar with the duties of competence and communication.  Each is one of my 7 Cs of Legal Ethics.  After the small claims hearing, I was struck by the difficulty that the landlord – and many others involved with the judicial system – must have in finding a lawyer who can help them to understand their legal matters. That is, a lawyer who can competently communicate with them.

Earlier this week, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 500: Language Access in the Client-Lawyer Relationship.  The ABA Journal reported the opinion here.

The opening lines of the synopsis provide the upshot:

• “Communication between lawyer a lawyer and a client is necessary for the client to participate effectively in the representation and is a fundamental component of nearly every client-lawyer relationship. When a client’s ability to receive information from or convey information to a lawyer is impeded because the lawyer and client do not share a common language, or owing to a client’s non-cognitive physical condition, such as a hearing, speech, or vision disability, the duties of communication . . . and competence . . . are undiminished.”

Next, the body of the opinion starts with the “baseline” proposition that:

• “when a lawyer and client cannot communicate with reasonable efficacy, the lawyer must take reasonable steps to engage the services of a qualified and impartial interpreter and/or employ an appropriate assistive or language-translation device to ensure that the client has sufficient information to intelligently participate in decisions relating to the representation and that the lawyer is procuring adequate information from the client to meet the standards of competence practice.”

From there, the opinion provides guidance on:

1. a lawyer’s obligation to assess whether a translator or interpreter or interpretive device is necessary;
2. the qualifications to look for (and to avoid) in a person or service that translates or interprets; and,
3. a lawyer’s obligations when supervising a translator or interpreter.

I’m not going to go through the whole opinion here.  There’s no substitute for reading it.[i]

In the end, the duties of competence and communication require a lawyer to be able to deliver and receive information to and from the client.

As always, be careful out there.

[i] I will stress one point: be careful in selecting an interpreter.  From inquires I’ve received, my sense is that many lawyers use a client’s friend or family member.  That’s understandable and not necessarily inappropriate.  Still, echoing this opinion issued by the New Hampshire Bar Association in 2010, the new ABA opinion warns that there is “substantial risk that an individual in a close relationship with the client may be biased by a personal interest in the outcome of the representation.”