Finally — misconduct that left even me in disbelief.

Every so often, a lawyer will preface a story about legal ethics with a statement like “Mike, I GUARANTEE that you WILL NOT believe this one.”

Yes, I will.  That’s what 22 years in this field can do to a person.

Then I read today’s story.  It involves misconduct that, until now, I would only have imagined in a TV or movie script. I mean, I’m not even certain that Saul Goodman would stoop so low.  Sadly, it’s real life.

I learned of the story via the ABA Journal and the Legal Profession Blog.  Respectively, the headlines:

The story is mind-boggling.

According to disciplinary charges filed last week, the lawyer represented a client charged with several criminal offenses, including Murder.  In June 2021, both the lawyer and a victim’s advocate appeared at the client’s arraignment.  The lawyer had known the victims’ advocate for years, knew that the advocate was involved in the lawyer’s client’s case, and new that the victim’s advocate worked for an organization named “Haven of Hope.”

The court set a pretrial hearing for November 30, 2021.  The client’s last name is Wells, the victim advocate’s Wilkinson-Carpenter.  What follows in italics is an excerpt from the disciplinary complaint, which refers to the lawyer as “respondent.”

  • 15. On November 30, 2021, the day of Wells’s pretrial hearing, respondent deposited his feces into an empty potato chip can before leaving his home. He did not put a lid on the can. Respondent drove with the can of feces to Cambridge, Ohio.
  • 16. At approximately 8:10 a.m. – 8:15 a.m., respondent turned his vehicle down the alley where Haven of Hope’s parking lot is located.
  • 17. At the entry to the alley, there is a sign on the side of the building indicating that Haven of Hope is housed there. Further, there was construction at the entrance to the alley which made the alley more difficult to access.
  • 18. Respondent slowed his vehicle down as he initially passed Haven of Hope’s parking lot.
  • 19. Respondent then drove further down the alley, passing by other parking lots, and turned around, allowing him to drive past Haven of Hope’s parking lot a second time.
  • 20. Respondent slowed again as he passed Haven of Hope’s parking lot for the second time and threw the open chip can containing his feces out of his car window and into Haven of Hope’s parking lot.
  • 21. Wilkinson-Carpenter observed respondent throw the can out of the window of his vehicle toward Haven of Hope’s parking lot.
  • 22. Respondent then sped off in his vehicle and drove to the courthouse for Wells’s 8:30 a.m. pretrial hearing.
  • 23. Wilkinson-Carpenter approached the item which landed close to her car and discovered it was a Pringles can containing what appeared to be human feces.

The charges go on to allege that the victim’s advocate reported the incident to law enforcement and that the lawyer eventually pled guilty to Disorderly Conduct and Littering.

So far, I’d yet to reach the part of the story that left me in disbelief. Then I read paragraph 27 of the disciplinary complaint.  It alleges:

  • “27. Respondent has engaged in similar conduct on approximately ten previous occasions, indiscriminately choosing the location where he throws the chip cans containing his feces.”

Thinking back to the opening and a jingle of my youth, I GUARANTEE this: today’s story certainly does not leave me with a fever for the flavor.

As always, let’s be careful out there.

Related posts:

Five for Friday #268

Welcome to Friday and the 268th legal ethics quiz!

Throughout the week, various ideas for today’s introduction percolated in my mind. A few even led to drafts that I’ve not yet deleted.  Then, this morning, I happened upon a French proverb:

Silence makes no mistakes.”

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

Question 1

Below, I’ve listed 3 carve outs in which a rule permits a lawyer to do something that the same rule otherwise prohibits.  Which of the 7 Cs of legal ethics does the rule govern?

  • To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client.
  • To establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved.
  • To respond to allegations in any proceeding concerning the lawyer’s representation of the client.

Question 2

There is a rule that sets out a lawyer’s duties when, in connection with a representation, the lawyer is in possession of funds in which both the “client and a third person claim interests.”  The rule requires the lawyer to promptly distribute all portions that are not in dispute and to keep the remainder “separate” until the dispute is resolved.

Does the rule apply when the lawyer is the “third person” who claims an interest in the funds?

  • A.  Yes.
  • B.  No.  In this situation, the rule requires the lawyer to disburse the entire portion to the client and then seek to recover the lawyer’s share through “appropriate judicial process.”

Question 3

Here’s an excerpt from a comment to one of the rules.  Fill in the blank.

“The tribunal has proper objection when the trier of fact may be confused or misled by a lawyer servicing as both advocate and ____________.  The opposing party has proper objection where the combination of roles may prejudice the party’s rights in the litigation.”

Question 4

Lawyer called me with an inquiry. I listened, then responded “we just adopted a new rule that applies to your situation. It allows you to disclose otherwise confidential information in order to detect and resolve conflicts of interest, as long as the information you reveal won’t compromise the attorney-client privilege or otherwise prejudice your clients”

Given my response, what is Lawyer’s situation

  • A.  Lawyer is changing jobs.
  • B.  Lawyer is changing malpractice carriers.
  • C.  Lawyer received a jury summons.
  • D.  Lawyer was selected for a trust account audit by a CPA firm that does business in Vermont.

Question 5

One of the jobs in a U.S. President’s administration is that of Pardon Attorney. I’m not positive, but I think that the lawyer who serves as Pardon Attorney must be very busy this time of year. 

According to legend, President Lincoln granted clemency one November, as did President Kennedy 100 years later.  However, it wasn’t until 1989 that President Bush began an official tradition that continues to this day. Several years ago, President Obama spoke eloquently:

“And it is my great privilege — well, it’s my privilege — actually, let’s just say it’s my job — to grant them clemency this afternoon. As I do, I want to take a moment to recognize the brave [others] who weren’t so lucky, who didn’t get to ride the gravy train to freedom — who met their fate with courage and sacrifice — and proved that they weren’t chicken.”

According to media reports from earlier this week, President Biden is likely to issue pardons next week to two North Carolinians. Assuming that President Biden asks the Pardon Attorney for advice, competent advice will include understanding who is being considered for pardons.

Who is up for presidential pardons this time of year?

Need a continuance? Don’t assume it’ll be granted.

I’ll cut to the chase.  The goal of this post is to remind lawyers not to assume that a continuance will be granted. In a few paragraphs, I’ll share a cautionary tale that drives home the point. But first, a bit on what got me thinking about the general topic.

I’ve been contemplating a post on the relationship between Rule 3.2 and Comment 5 to Rule 1.2.

The former requires a lawyer to expedite litigation consistent with the interests of the client.  The comment makes clear that delay for delay’s sake is unethical. 

  • “Nor will a failure to expedite be reasonable if done for the purpose of frustrating an opposing party’s attempt to obtain rightful redress or repose. It is not a justification that similar conduct is often tolerated by the bench and bar. The question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay. Realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client.”

Meanwhile, Comment [5] to Rule 1.2 addresses a lawyer’s professional responsibility upon receiving a good faith request for a continuance.  The comment went into effect on November 14 and is part of the rule that answers the question “Who decides? The client or the lawyer?”  It reads:

  • “[5] It is not inconsistent with the lawyer’s duty to seek the lawful objectives of a client through reasonably available means for the lawyer to accede to reasonable requests of opposing counsel that do not prejudice the rights of the client, to avoid the use of offensive or dilatory tactics, or to treat opposing counsel or an opposing party with civility.”

In a way, each is intertwined with Rule 1.3’s duty to act with reasonable promptness and diligence when representing a client.

Looking for cases or opinions that discuss either rule, I came across the ABA Journal’s post Lawyer who missed deadline to watch son’s professional debut gets no sympathy on appeal. The story reminded me of (what I think is) a common assumption: that a continuance will be granted. Here’s what happened.

Lawyer filed a civil suit on behalf of Plaintiff.  Defendants moved to dismiss. The United States District Court for the Central District of California set a hearing on the motion for June 24, 2021.

On June 9, 2021, Lawyer filed a motion to continue the hearing. Lawyer cited his workload as well as the fact that his associate would be out of the office for several weeks for a family emergency. The court granted the request. As such, the deadline for Lawyer to file a response to Defendants’ motion to dismiss was pushed to September 3, 2021, and a hearing on the motion was scheduled for September 24, 2021.

On September 3, the date that his response was due, Lawyer filed another request for a continuance.  This time, Lawyer asserted that he could not file a timely response because he was in Illinois to watch his son’s debut as a professional baseball player.  Lawyer asked that the hearing on Defendants’ motion be pushed to October 8.  The court denied Lawyer’s motion.

On September 18, Lawyer filed a response to the motion to dismiss. It seems that Lawyer expected to appear at a hearing on the motion to dismiss on September 24.

The hearing never took place.  Rather, on September 20, the court granted Defendants’ motion to dismiss as unopposed. In so doing, the court concluded that Lawyer’s responsive motion was filed out of time.  Plaintiff’s suit was dismissed, and the hearing scheduled for September 24 cancelled.  The court’s order is here.

Lawyer appealed.  Last week, the 9th Circuit Court of Appeals affirmed the district court’s decision.  Among other things, the 9th Circuit stated that Lawyer’s

  • “. . . excuse for not meeting a deadline that had already been extended 90 days at his request was frivolous: Counsel chose to attend a ballgame instead of timely filing his client’s response to the motion to dismiss.”

The ABA Journal quoted Lawyer as stating:

  • “Look, I’ve been doing this for 38 years. Most judges would give you a pass to see your kid’s first professional baseball game.”

In addition to the ABA Journal, How Appealing reported the story here and updated it here.

I do not know what Lawyer’s mindset was. Nor am I suggesting that he assumed a continuance would be granted.

Rather, as I indicated above, the story reminds me of what I perceive to be a common feeling in the Vermont bar: that continuances will be granted. This story shows that’s not always the case.

Today’s lessons:

  • Lawyers shouldn’t assume they’ll receive continuances.
  • Comment [5] to Rule 1.2 vests a lawyer with the authority to agree to good faith requests from opposing counsel that do not harm the lawyer’s client’s interests.
  • Rule 3.2 makes clear that delay for delay’s sake is unethical.

As always, let’s be careful out there.

On Wellness Wednesday, a well-being reminder as the holiday season begins: be well & let others be well.

The holiday season is upon us. For many, it’ll include gatherings with colleagues, friends, and family. Often, those gatherings will involve alcohol.  There’s nothing wrong with that. Indeed, I look forward to festive get togethers over drinks.

But what we must remember is that not everybody does. 

For some, well-being is adversely affected by the stress associated with both the holidays and gatherings that include alcohol. I was reminded of this a few weeks ago by the ABA Journal’s Stressed about holiday parties? Think about skipping them, says lawyer in recovery.  The post features tips from Laurie Bresden, a lawyer who is in recovery.  Bresden urges other lawyers in recovery to “consider what you want your celebrations to look like, rather than meeting everyone else’s expectations.”

Bresden tips aren’t limited to lawyers who are in recovery.  This paragraph caught my attention

  • “According to Bresden, her office gets many calls from lawyers in recovery who are stressed about navigating holiday work events in which alcohol is served. For those planning the parties, she suggests serving alcoholic and nonalcoholic beverages in the same types of glasses, so nondrinkers don’t feel awkward, including having mocktails on the menu and respecting boundaries when employees don’t attend the gatherings.”

My attention was caught because I’ve tried to convey a similar message. 

In this 2016 post, I wrote:

  • “The holiday season is approaching. Even if it weren’t, let’s remember to accept ‘no thank you’ as a perfectly legitimate answer when a colleague is asked if they want a drink.”

Back then, a Vermont lawyer let me know that at parties, whether holiday or not, the lawyer and the lawyer’s partner use plastic cups to serve all drinks.  That way, nobody knows what others are drinking, thereby saving someone who is not drinking alcohol from having to explain why.

In 2018, I posted “N.O. is O.K.” I’ll repeat part of what I wrote then:

As bar counsel, I’ve dealt with lawyers who’ve told me that one of the keys to their wellness is to avoid situations that will tempt them to make, if you will, ‘unwell decisions.’  For example, some avoid events that include alcohol.

I totally get it.

But many of them want to be social.  They want to go to bar events or holiday parties.  They want to see people, chat, have fun.  The interaction helps their wellness.

What they don’t want is to deal with comments like what? did you quit for the holidays? nobody likes a quitter!!’

I know this is preachy.  But my message is this: when someone says ‘no’ to a drink at a holiday party, don’t object.

I’m no expert.  But, on well-being, I believe in “be well and let be well.”  Whatever works for you – attending holiday gatherings or avoiding them – do that.  If you attend, participate in a way that is conducive to your well-being, whether that means having a drink or not.  There’s nothing wrong with choosing to drink responsibly.  Nor is there any need to comment upon, call attention to, or object to someone who chooses not to drink at all.

Enjoy the holidays, let others enjoy theirs.

Previous Wellness Wednesday Posts

Update on the no-contact rule and represented organizations.

A few weeks ago, I posted The No-Contact Rule, Represented Organizations, and . . . Basketball?  The post shared the story of Larry Hutcher

Hutcher is lead counsel for a group of ticket resellers who, in September, sued Madison Square Garden Entertainment Corporation (Defendant).  Once the suit was filed, Defendant banned Hutcher and other lawyers at his firm from attending events at Defendant’s properties.  Defendant cited New York’s version of ABA Model Rule 4.2 as a basis for the ban.[1] 

Of course, that’s not the entire story.  Here’s what makes it interesting:

  • Defendant’s properties include Madison Square Garden.
  • Hutcher has New York Knicks season tickets. 
  • The Knicks play their home games at Madison Square Garden.

So, on behalf of his firm, Hutcher asked a court to enjoin Defendant from prohibiting the firm’s lawyers from attending events at MSG properties.  The suit drew coverage from multiple outlets, including Forbes, the New York Times, the New York Post, ESPN, and the ABA Journal

In his complaint, Hutcher argued that:

“Rule 4.2 is meant to ensure that there is no contact between represented parties by counsel relating only to the ‘subject of the litigation.’ Certainly, there are only very few employees of MSG in a position to discuss the ‘subject of the litigation ‘with any of the individual plaintiffs. In essence, MSG feigns concern over the unlikely scenario that any individual plaintiff will discuss ‘the substance of the litigation’ with such an MSG employee while watching a Knicks game or attending a concert. This is absurd and is nothing more than a flimsy unsupportable pretext to justify the infantile behavior of MSG’s principals.”

He went on:

“Furthermore, Rule 4.2, when applied to corporate organizations, only affects limited categories of corporate employees and not all employees as MSG disingenuously implies in its notice. As described in more detail below, the affected MSG employee must be someone with the authority to bind MSG to a decision that will impact the subject litigation. How many MSG employees fall into this limited category? The odds of an individual plaintiff discussing the subject of the litigation with that MSG employee are astronomical. There are better odds of being struck by lightning or the Knicks winning the NBA championship this year.”[2]

The court ruled two days ago.  The ABA Journal reported the decision here.

The opinion isn’t exactly overflowing with legal analysis.  Here’s how the court resolved the 4.2 issue:

  • “. . . there appears to be no rational basis for the policy instituted by the defendants except to dissuade attorneys from bringing suit against them. The concern that the defendants could be prejudiced by allowing attorneys who are representing those who have brought action against the defendant to attend events with thousands of other people is unavailing to this Court.”[3]

If you’re interested in the court’s discussion of the substantive law, check out the opinion.  The discussion is outside the scope of this post and the no-contact rule’s application, if any, to a lawyer who is suing a represented organization and who wants to enter one of the organization’s properties for reasons that have nothing to do with the litigation. 

Despite the court’s conclusion that the 4.2 argument was “unavailing,” MSG appears to have doubled down. According to the ABA Journal, MSG released a statement that includes the following:

  • “‘It is not unreasonable that while in active litigation, we would want to preserve our right to protect ourselves against improper disclosure and discovery,’ the statement reads. ‘That is why we instituted this policy, and we have repeatedly made clear that once litigation is resolved, impacted attorneys will be allowed back in our venues.’”

The ABA journal went on to report that “Madison Square Garden has sent letters to all lawyers with suits against the venue asserting that any tickets that they obtain—including those purchased from third-party sellers—are revoked and invalid.”

It seems that there’s going to be an appeal.  If so, I wonder if the 4.2 issue will be addressed in more detail.  

Again, Rule 4.2 prohibits a lawyer from communicating with a represented person on the subject matter of the representation.  The first sentence of Comment [7] to Vermont’s rule states that

  • “In the case of a represented organization, this rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.”

So, if MSG is correct and Rule 4.2 is a proper basis to ban lawyers who are suing MSG from entering the MSG’s venues, how else might Rule 4.2 be wielded?  Can a represented grocery chain use Rule 4.2 to ban a lawyer who is representing a plaintiff who slipped on a wet floor from shopping at its stores? What about the lawyer who wants to visit an elderly friend or relative but is representing a client in a claim against the company that owns the private care facility where the friend or relative lives? 

Again, for all I know, such bans might be valid under other law.[4]  Also, I am not suggesting that lawyers undermine the discovery rules, or make themselves witnesses.  My focus is solely on Rule 4.2.  And, while I’m open to discussion, to me, absent actual communication with a represented organization’s constituent on the subject of the representation, a lawyer does not violate the rule merely by going to a Knicks game, picking up groceries, or visiting a friend or relative.

As always, let’s be careful out there.

Related Posts


[1] Rule 4.2 prohibits a lawyer from communicating with a represented person on the subject of the representation. 

[2] To Hutcher’s point, here is the first sentence to Comment [7] to Vermont’s version of Rule 4.2: “In the case of a represented organization, this rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.”

[3] Alas, while Rule 4.2 was not dispositive, Hutcher and his co-workers fell short of total victory.  The court concluded that New York law (1) requires MSG to honor valid tickets to non-sporting events that are presented by people 21 or older who are behaving appropriately, but (2) does not prohibit MSG from barring entry to sporting events. 

[4] I don’t know much law.

Monday Morning Honors #267

Happy Monday! Last full week before the holidays.  Make the most of it!

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

Honor Roll

Answers

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

Question 1

Consider the following:

  • Thoroughness, preparation, legal knowledge, and skill.
  • Well-being.
  • Staying abreast of developments in the law, including the risks and benefits of technology.

Each is an aspect of the duty of ________.

COMPETENCE.   V.R.Pr.C. 1.1 sets out the duty of competence and defines it to include the thoroughness, preparation, legal knowledge, and skill required for the representation.  Comment 8 addresses the duty to stay abreast of the risk and benefits of relevant technology, while Comment 9 discusses well-being as an aspect of competence.

Question 2

Here’s a comment to one of the rules:

  • “A lawyer entitled to a fee is permitted by paragraph (c)(3) to prove the services rendered in an action to collect it.  This aspect of the rule expresses the principle that the beneficiary of a fiduciary relationship may not exploit it to the detriment of the fiduciary.”

Which of the 7 Cs of Legal Ethics is the subject of the rule that this comment accompanies?

CONFIDENTIALITY.  The quoted language is from Comment 13.

Question 3

Fill in the blank.

There’s a rule that prohibits ex parte communication with two groups of people. One group includes judges and any “other person acting in a judicial or quasi-judicial capacity in a pending or impending adversary proceeding.”   The other group includes current and prospective _____________.

JURORS.  V.R.Pr.C. 3.5(b)(2).

Question 4

I rarely receive inquiries about this rule, but the topic it addresses is one that many lawyers find frustrating in opposing counsel.  A comment to the rule suggests that a violation likely turns on “whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay.”

What’s the name of the rule?

  • A.  Expediting Litigation.  V.R.Pr.C. 3.2
  • B.  Conflicts of Interest: Current Clients: Specific Rules.
  • C.  Declining or Terminating Representation.
  • D.  Meritorious Claims and Contentions.

Question 5

Today’s question is about a movie that is 30 years old.  However, the lead role was played by an actor who is going to finish as Hollywood’s top paid star of 2022, reportedly earning more than $100 million for a movie that was released this spring.

The 1992 movie included several memorable courtroom scenes.  In one, a member of the 3-lawyer defense team objected to testimony and asked that it be stricken from the record.  The following exchange ensued:

  • Judge:  The objection is overruled counsel.
  • Lawyer:  Sir, the defense strenuously objects and requests a meeting in chambers so that his honor might have an opportunity to hear discussion before ruling on the objection.
  • Judge: The objection is overruled counsel.

A few moments later, the court went into recess.  Annoyed with the lawyer, co-counsel asked:

  • “I strenuously object? Is that how it works?” 

Then, to drive home the point, co-counsel pretended to be both lawyer and judge in this scenario:

  • Lawyer:  Objection.
  • Judge:  Overruled.
  • Lawyer:  No, no, no, no I strenuously object.
  • Judge: Oh, well if you strenuously object, let me take a moment to reconsider.

Later, in the movie’s famous climactic scene, the leading character – and leader of the defense team — asked a key witness “did you order the ____   ____?” The judge told the witness that the witness did not have to answer. The witness answered anyway. 


If they were real-life lawyers, the defense team would probably be doing something today to observe Veterans Day.

What had the witness ordered?  A CODE RED (The movie is A Few Good Men)

Bonus: name the 2022 movie that starred the 1992’s movie’s lead, albeit not as a lawyer. It’s another movie whose characters likely observe Veterans Day.

TOP GUN – MAVERICK.  Tom Cruise starred in both.

Five for Friday #267

Welcome to Friday and the 267th legal ethics quiz!

Sometimes you’re the first person to the office because you’re the first person to the office. 

Other times you’re the first person to the office because you’re the only one who didn’t realize today is a state and federal holiday. 

Somewhere my mother nods with a knowing grimace, confounded yet again by my persistent inability to pay attention to so many things.

On the bright side, having realized that it’s Veterans Day, I’m able to discard the intro I’d originally planned, conscripting it to the heap of intros that seem so clever late Thursday night, only to send me into a panic on Friday morning when I wake frantically hoping that I didn’t click “publish.” Instead, I have good news to share in honor of the holiday.

Vermont Law School’s South Royalton Legal Clinic houses the Veterans Legal Assistance Project of Vermont.  From the website:

  • “VLAP was established in 2014 to provide pro bono legal assistance to Vermont’s military veteran population. The project represents veterans with state civil law issues in Windsor and Orange counties, as well as on a statewide basis in matters concerning veterans law-specific issues, such as appeals from the denial of VA benefits and discharge upgrades. VLAP also assists veterans with debtor issues such as bankruptcy relief, foreclosure defense, and consumer protection. Through ongoing outreach to community partners, VLAP continues to develop awareness of veterans’ needs and advocate for adequate services.”

For now, VLAP is only for student clinicians who work under the supervision of Vermont lawyers Don Hayes and Amanda Murphy.  Next year, however, things will change.

Thomas M. French is a Vermont lawyer.  In 2020, Tom and Samantha Lednicky received the Vermont Bar Association’s Pro Bono Service Award. I blogged about their pro bono work here.  The VBA press release included this about Tom:

  •  is a pro bono emeritus attorney in Brattleboro who was nominated by attorneys James Valente and Thomas Costello for his work with military veterans.  Following military service himself as a JAG attorney, French worked as a general practitioner in Windham County for 50 years, often serving clients pro bono.  After retirement, Attorney French set up a pro bono program at his local American Legion post where he can be found every Tuesday and Thursday helping veterans obtain benefits they have been wrongfully denied.  In 4 years, Attorney French has won 14 out of the 15 actions he brought for his veteran clients, securing nearly $500,000 in benefits for them.”

Tom’ son, also named Tom, is a VLS alum. Tom the younger recently made a generous gift to VLAP to fund a program named after his father: the Thomas M. French Advocacy Fund.  VLAP will use the fund to train the next wave of lawyers willing to assist Vermont’s veterans on a pro bono basis.  A half-day CLE program is scheduled for April 21, 2023.  Attendees will receive the credit required for accreditation to practice before the Veterans Administration. The training is free for any attorney who agrees to take on some pro bono work for the veteran community.  Thereafter, the fund will enable VLAP to provide support and resources to participating attorneys.

For more info, contact Don or Amanda.

Thank you Tom & Tom!

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

Question 1

Consider the following:

  • Thoroughness, preparation, legal knowledge, and skill.
  • Well-being.
  • Staying abreast of developments in the law, including the risks and benefits of technology.

Each is an aspect of the duty of _______________.

Question 2

Here’s a comment to one of the rules:

  • “A lawyer entitled to a fee is permitted by paragraph (c)(3) to prove the services rendered in an action to collect it.  This aspect of the rule expresses the principle that the beneficiary of a fiduciary relationship may not exploit it to the detriment of the fiduciary.”

Which of the 7 Cs of Legal Ethics is the subject of the rule that this comment accompanies?

Question 3

Fill in the blank.

There’s a rule that prohibits ex parte communication with two groups of people. One group includes judges and any “other person acting in a judicial or quasi-judicial capacity in a pending or impending adversary proceeding.”   The other group includes current and prospective _____________.

Question 4

I rarely receive inquiries about this rule, but the topic it addresses is one that many lawyers find frustrating in opposing counsel.  A comment to the rule suggests that a violation likely turns on “whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay.”

What’s the name of the rule?

  • A.  Expediting Litigation.
  • B.  Conflicts of Interest: Current Clients: Specific Rules.
  • C.  Declining or Terminating Representation.
  • D.  Meritorious Claims and Contentions.

Question 5

Today’s question is about a movie that is 30 years old.  However, the lead role was played by an actor who is going to finish as Hollywood’s top paid star of 2022, reportedly earning more than $100 million for a movie that was released this spring.

The 1992 movie included several memorable courtroom scenes.  In one, a member of the 3-lawyer defense team objected to testimony and asked that it be stricken from the record.  The following exchange ensued:

  • Judge:  The objection is overruled counsel.
  • Lawyer:  Sir, the defense strenuously objects and requests a meeting in chambers so that his honor might have an opportunity to hear discussion before ruling on the objection.
  • Judge: The objection is overruled counsel.

A few moments later, the court went into recess.  Annoyed with the lawyer, co-counsel asked:

  • “I strenuously object? Is that how it works?” 

Then, to drive home the point, co-counsel pretended to be both lawyer and judge in this scenario:

  • Lawyer:  Objection.
  • Judge:  Overruled.
  • Lawyer:  No, no, no, no I strenuously object.
  • Judge: Oh, well if you strenuously object, let me take a moment to reconsider.

Later, in the movie’s famous climactic scene, the leading character – and leader of the defense team — asked a key witness “did you order the ____   ____?” The judge told the witness that the witness did not have to answer. The witness answered anyway. 

What had the witness ordered?

If they were real-life lawyers, the defense team would probably be doing something today to observe Veterans Day.

Bonus: name the 2022 movie that starred the 1992’s movie’s lead, albeit not as a lawyer. It’s another movie whose characters likely observe Veterans Day.

History’s best “worst” song, and tips on acting reasonably to safeguard client data.

Yesterday was this blog’s 7th birthday.  We entered the world with Competence Includes Tech Competence.  The theme dominated back then.  Indeed, one could reasonably argue that tech competence is to this blog, as rock & roll is to Starship’s city.[1]

The rules related to tech competence have evolved since then.  In 2018, we adopted language that makes clear that maintaining competence includes keeping “abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”[2] More recently, we amended V.R.Pr.C. 1.6, the confidentiality rule, to include this paragraph:

  • (d) A lawyer shall make reasonable efforts to prevent the inadvertent disclosure of, or unauthorized access to, information relating to the representation of a client.

The amendment, which takes effect next week, addresses the duty to act competently to safeguard client information, no matter the format in which the information is stored.  Here’s the Reporter’s Note:

  • “Subdivision (d) is added to reflect that the modern practice of law includes possession of information related to the representation of client in many forms, including information that is stored electronically or digitally. A lawyer is under a duty to act competently to safeguard client information, no matter its format. See V.R.Pr.C. 1.1. Paragraph (d) tracks the ABA Model Rule, clarifies that V.R.Pr.C. 1.6 applies to the electronic transmission and storage of information relating to a representation, and makes explicit that the duty under Rule 1.6 is broader than avoiding affirmative disclosures of information relating to the representation of a client.”

With the new rule, a question that arises is “what are reasonable efforts?”  As I indicated here, it’s not my role to issue a formal opinion as to what’s reasonable and what isn’t.  My stance finds support in ABA Formal Opinion 477.  Among other things, the opinion concludes that “[w]hat constitutes reasonable efforts is not susceptible to a hard and fast rule, but rather is contingent upon a set of factors.”  It goes on to state that “the reasonable efforts standard:

  • “. . . rejects requirements for specific security measures (such as firewalls, passwords, and the like) and instead adopts a fact-specific approach to business security obligations that requires a ‘process’ to assess risks, identify and implement
    appropriate security measures responsive to those risks, verify that they are effectively implemented, and ensure that they are continually updated in response to new developments.

That said, it’s undisputed that my role includes providing guidance.  To that end, here are two resources.

In September, Jim Knapp and I presented “Tech Competence & Cybersecurity” at the VBA’s Annual Meeting.  I began with a short overview of the new rule, then Jim provided a boatload of cyber and tech tips.  You can access the material here.

In addition, Catherine Reach is the Director of the North Carolina Bar Association’s Center for Practice Management.  Two days ago, Catherine posted “Protecting Portable Devices.”  Like Jim’s material, Catherine’s post is chock full o’ helpful tips on securing data.

As always, let’s be careful out there.


[1] Those of you who remember the 80s music scene might question including We Built This City in a post on competence. Your skepticism is warranted. After all, a few years ago, GQ named it “the Worst Song of All Time.” However, I’ll say this: on the rare occasion that I listen to the song, I turn the volume to 11, sing along enthusiastically, and find myself particularly thrilled to belt out (with proper intonation that doesn’t come through in a blog post) “knee deep in the hoopla” and “Marconi plays the Mamba.”  So, for giggles, a trip down memory lane is here.

[2] V.R.Pr.C. 1.1, Cmt. [8].

Wellness Wednesday: Make Well-Being an Expectation in the Attorney-Client Relationship.

Today, I was perusing the Institute for Well-Being in Law’s website.  I found this post by Ben Carpenter:

Making Well-Being an Expectation in Attorney-Client Relationships

Whether here or at seminars, I often mention the importance of setting reasonable client expectations at the outset of the representation.  This post is representative of the message. 

In addition, I’ve used wellness presentations to urge lawyers to set boundaries with clients and opposing counsel.  When I do, I remind lawyers that the duties of diligence and communication are modified by the word “reasonable[1],” and that there are times when it’s perfectly reasonable to respond to clients and opposing counsel:

  • Tomorrow.
  • After your kid’s game, recital, or event.
  • After you finish lunch.
  • After you get back from the short walk you’re on.
  • After you finish the email in which you’re responding to a different client or opposing counsel.

What I’ve never thought to do is to suggest to lawyers that the expectations they set with clients include an expectation as to how lawyer and client will treat each other.  What a great idea!

Back to Carpenter’s post . . .

. . . the title conveys it all: setting expectations with clients includes setting expectations about how you’re going to treat each other.  I did not pay Attorney Carpenter to author the post, but I endorse the message.

While I recommend the entire post, I want to focus on three paragraphs.

First:

  • “There is a stigma around well-being, as if adopting behaviors that support well-being may compromise a lawyer’s ability to provide exceptional service. Well-being is a responsibility, not a luxury, that is an integral component of our collective ability to satisfy our duty of competency.  Adopting behaviors that support well-being is not only necessary to the profession, but it makes us better lawyers.”

Yes! In the introduction to last week’s quiz, I wrote that civility is not weakness. Looking out for your own well-being isn’t either. It’s a responsibility that will make you healthier and better equipped to honor your duties to your clients. In other words, and to paraphrase Carpenter, well-being isn’t a luxury, it’s an aspect of competence.

Next:

  • “In today’s environment of flexible work arrangements and ubiquitous communication devices, there is no single set of rules or standards that work for everyone. It is easy to lose boundaries, and to assume that having the ability to connect means we should always be connected.  Therefore, in these times, it is more important than ever to discuss and confirm expectations for availability and how to connect.”

Yes!  Just because we can connect doesn’t mean that we must connect.  As I mentioned above, the duties of diligence and communication are modified by the word “reasonable.”

Finally, the coach and runner in me loved this sentence:

  • “Ultimately, we hope that the guidelines will become forgotten and replaced by adopted habits and practices that have become part of our culture and relationships.”

We must make well-being a habit. And habits don’t happen overnight. They only develop as a result of a commitment to repetition.  We used to tell our players that we weren’t going to work on things until they remembered them, we were going to work on things until it was impossible for the players to forget them.  That’s a habit. And, as I blogged long ago, I agree with Carpenter that we should strive to make wellness a habit.

In closing, set reasonable expectations with clients, including expectations that foster the well-being of all involved in the relationship.


[1] V.R.Pr.C. 1.3 requires a lawyer to “act with reasonable diligence and promptness in representing a client.”  V.R.Pr.C. 1.4(a)(3) requires a lawyer to “keep the client reasonably informed about the status of the matter.”  V.R.Pr.C. 1.4(a)(4) requires a lawyer to “promptly comply with reasonable requests for information.”

Today, I was perusing the Institute for Well-Being in Law’s website.  I found this post by Ben Carpenter:

Making Well-Being an Expectation in Attorney-Client Relationships

Whether here or at seminars, I often mention the importance of setting reasonable client expectations at the outset of the representation.  This post is representative of the message. 

In addition, I’ve used wellness presentations to urge lawyers to set boundaries with clients and opposing counsel.  When I do, I remind lawyers that the duties of diligence and communication are modified by the word “reasonable[1],” and that there are times when it’s perfectly reasonable to respond to clients and opposing counsel:

  • Tomorrow.
  • After your kid’s game, recital, or event.
  • After you finish lunch.
  • After you get back from the short walk you’re on.
  • After you finish the email in which you’re responding to a different client or opposing counsel.

What I’ve never thought to do is to suggest to lawyers that the expectations they set with clients include an expectation as to how lawyer and client will treat each other.  What a great idea!

Back to Carpenter’s post . . .

. . . the title conveys it all: setting expectations with clients includes setting expectations about how you’re going to treat each other.  I did not pay Attorney Carpenter to author the post, but I endorse the message.

While I recommend the entire post, I want to focus on three paragraphs.

First:

  • “There is a stigma around well-being, as if adopting behaviors that support well-being may compromise a lawyer’s ability to provide exceptional service. Well-being is a responsibility, not a luxury, that is an integral component of our collective ability to satisfy our duty of competency.  Adopting behaviors that support well-being is not only necessary to the profession, but it makes us better lawyers.”

Yes! In the introduction to last week’s quiz, I wrote that civility is not weakness. Looking out for your own well-being isn’t either. It’s a responsibility that will make you healthier and better equipped to honor your duties to your clients. In other words, and to paraphrase Carpenter, well-being isn’t a luxury, it’s an aspect of competence.

Next:

  • “In today’s environment of flexible work arrangements and ubiquitous communication devices, there is no single set of rules or standards that work for everyone. It is easy to lose boundaries, and to assume that having the ability to connect means we should always be connected.  Therefore, in these times, it is more important than ever to discuss and confirm expectations for availability and how to connect.”

Yes!  Just because we can connect doesn’t mean that we must connect.  As I mentioned above, the duties of diligence and communication are modified by the word “reasonable.”

Finally, the coach and runner in me loved this sentence:

  • “Ultimately, we hope that the guidelines will become forgotten and replaced by adopted habits and practices that have become part of our culture and relationships.”

We must make well-being a habit. And habits don’t happen overnight. They only develop as a result of a commitment to repetition.  We used to tell our players that we weren’t going to work on things until they remembered them, we were going to work on things until it was impossible for the players to forget them.  That’s a habit. And, as I blogged long ago, I agree with Carpenter that we should strive to make wellness a habit.

In closing, set reasonable expectations with clients, including expectations that foster the well-being of all involved in the relationship.

Previous Wellness Wednesday Posts


[1] V.R.Pr.C. 1.3 requires a lawyer to “act with reasonable diligence and promptness in representing a client.”  V.R.Pr.C. 1.4(a)(3) requires a lawyer to “keep the client reasonably informed about the status of the matter.”  V.R.Pr.C. 1.4(a)(4) requires a lawyer to “promptly comply with reasonable requests for information.”