Maybe narcissistic lawyers who espouse ludicous arguments don’t necessarily violate the duty of competence.

Warning:  do not read this post if you are a narcissistic trial attorney or an attorney who has espoused ludicrous legal positions.

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Competence.

I blog about it often, always in the context of the duty to provide clients with competent representation. For obvious reasons, I never address the legal analysis that applies when assessing whether an accused is competent to waive the right to counsel. 

Well, today, the latter meets the former.

In an opinion issued earlier this week, the United States Court of Appeals for the Fourth Circuit analyzed whether a criminal defendant was competent to waive counsel. The court’s analysis includes reference to whether, upon waiving counsel, the defendant provided himself with competent representation.   The Legal Profession Blog and ABA Journal reported the opinion.

As far as this post is concerned, I’m most interested in sharing two sentences from the court’s opinion.  As far as seminars on the duty of competence are concerned, I cannot wait until I’m able to work at least one of those sentences into my presentation.

But first, some background. 

The court’s opening paragraph succinctly sets the stage:

  • “After wrecking his car, Joseph Ziegler falsely claimed to be an Assistant United States Attorney to avoid charges and retrieve his impounded car. The real United States Attorney prosecuted him for impersonating a federal officer. Though not a lawyer, Ziegler waived his right to counsel and represented himself at trial. The jury convicted him.”

The next sentence gets us closer to the sentences I’m most interested in sharing:

  • “Ziegler now claims that the district court erred in permitting Ziegler to represent himself because he was incapable of doing so and because the district court failed to make necessary inquiries into his mental competency to waive counsel.”

Then, after concluding that the defendant was competent to waive counsel:

  • “Ziegler’s performance during trial only confirmed his competency. Ziegler gave an opening and closing argument, conducted far-reaching cross-examinations, introduced evidence, including three witnesses, and won several objections. While Ziegler continued to make some bizarre statements and mistakes, those occurrences related more to a lack of training and experience, which is to be expected of any non-lawyer, than to concerns about competency. In fact, Ziegler did quite well for someone proceeding pro se. His apparent ability to consider strategic choices, develop a defense strategy, and operate in the courtroom is all evidence of competence to both stand trial and waive the right to counsel.”

And, finally, here’s the paragraph that includes the sentences that I most wanted to share. (I’ve omitted the internal citation.)

  • “Still, Ziegler contends that his grandiose statements about his legal acumen, his combative approach to witnesses, his bizarre questions and theories, and his arguments with the court should have raised red flags. We disagree. Many great trial lawyers are combative and a bit full of themselves, if not outright narcissists. And ‘persons of unquestioned competence have espoused ludicrous legal positions.’”

I cannot wait until the seminar at which I’m first able to work in the following remark:

  • “You wouldn’t believe the things I’ve seen as disciplinary and bar counsel.  As the Fourth Circuit has noted, ‘persons of unquestioned competence have espoused ludicrous legal positions.’”

narcissus

PS:  If the defendant had been a lawyer, he might’ve qualified for Was That Wrong?

A lawyer’s professional obligation to provide candid legal advice.

During a seminar that I did last week for Vermont Law School’s South Royalton Legal Clinic, I reminded clinicians that a lawyer’s job is not to tell the client what the client wants to hear.  A lawyer’s job is to provide the client with candid legal advice.  I said the same thing again today in a CLE for government lawyers. Indeed, it’s a tip I’ve shared for more than decade, including in the five blogposts linked below.

Typically, I deliver the message when discussing one of my 5 Cs of legal ethics: communication.  In my experience, most disciplinary complaints are not rooted in a lawyer’s failure to respond to a client’s calls or emails. Rather, they are rooted in a lawyer’s failure to communicate reasonable expectations to the client at the outset of the professional relationship. Or, stated differently, they’re rooted in a lawyer’s failure to disabuse the client of expectations that the lawyer knows are unrealistic.

communication

While I share the guidance in the context of Rule 1.4 and the duty to communicate, nowhere in the rule or its comments is it written “a lawyer shall provide clients with candid legal advice.”  As such, I’ve done a poor job communicating that my guidance is anything more than aspirational.  That ends now.  I post today to make clear that lawyers have a professional duty to render candid legal advice.

Rule 2.1 of the Vermont Rules of Professional Conduct is entitled “Advisor.”  The first line is:

  • “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.”

Comment [1] falls under the heading “Scope of Advice.” It makes my point better than I ever have:

  • “A client is entitled to straightforward advice representing the lawyer’s honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront.  In presenting advice, a lawyer endeavors to sustain a client’s morale and may put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid legal advice by the prospect that the advice will be unpalatable to the client.”

Lawyers: consider what you’d expect from your auto mechanic, doctor, dentist, financial advisor, or anyone else to whom you turn for advice.  Or from your lawyer if you ever need to hire one!  You’d expect candid advice.  It might not be what you hoped for or wanted, but it’s the advice you’re entitled to receive.  Your clients are entitled to the same.

Rendering candid legal advice is more than a tip from bar counsel.  It’s a lawyer’s professional obligation.

Related posts:

Monday Morning Honors #230

Welcome to Monday.

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

Honor Roll

  • Karen Allen, Karen Allen Law
  • Evan BarquistMontroll, Backus & Oettinger
  • Penny Benelli, Dakin & Benelli
  • Andrew DelaneyMartin, Delaney & Ricci Law Group
  • Glenn Jarrett, Jarrett & Luitjens
  • John Leddy, McNeil Leddy & Sheahan
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeff MessinaBergeron, Paradis, Fitzpatrick
  • Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
  • Herb Ogden, Esq.
  • Keith RobertsDarby Kolter & Nordle
  • Jim Runcie, Ouimette & Runcie
  • The Honorable John Valente, Vermont Superior Judge
  • Zachary York, Legal Assistant, Sheehey Furlong & Behm

 Answers

Questions 1 & 2

Everyone knows I often mention the 7 Cs of Legal Ethics.  Earlier this week, I spoke with student-clinicians at Vermont Law School’s South Royalton Legal Clinic.  Their quiz on the 7 Cs included this question:

  • “Let’s imagine that upon passing the bar you accept a job with a state agency. Your first assignment is familiar: it involves a matter you worked on while in the clinic.  Which 2 Cs of legal ethics jump to mind?”

The scenario is a variation of a scenario that can, and often does, confront any lawyer.  So, Friday readers have the same task: identify the 2 Cs of Legal Ethics implicated by the scenario.

Conflicts of Interest and Confidentiality

Question 3

 Your office employs Non-Lawyer.  In a new matter, Non-Lawyer has a conflict that, if Non-Lawyer were a lawyer, would prohibit Non-Lawyer from accepting the representation.  Which is most accurate?

  • A. Non-Lawyer’s conflict is imputed to all lawyers in the office and the office must decline the representation.
  • B. Non-Lawyer’s conflict is imputed, but only to any lawyer in the office who regularly supervises Non-Lawyer.
  • C. A comment to one of the rules indicates that while Non-Lawyer’s conflict is not imputed to any lawyer in the office, Non-Lawyer should be screened from involvement in the new matter.  See, V.R.Pr.C. 1.10, Cmt. [4]
  • D. Imputation depends on whether the matter is transactional or involves potential litigation.

Question 4

Last week, I presented to members of the Vermont Association for Justice.  My topic was professional responsibility and “The Golden Rule.”   What was the focus of the discussion?

  • The rule that prohibits unreasonable fees.
  • Trust Account Management/Bookkeeping
  • The advertising rules.
  • Closing arguments and the general prohibition on asking jurors to put themselves in the shoes of the victim or a witness.

Question 5

I often urge lawyers not to share any details of client matters, even if doing so doesn’t violate the prohibition on disclosing information relating to the representation of a client.

Reginald Haupt is a lawyer in Georgia.  In 1982, he was suspended from practice for 6 months for commingling.  In 2006, he was convicted of securities fraud and sentenced to 4 years in prison.

In the 1970’s, Haupt represented a client who owned a golf course that was frequented by members of the Chicago mafia.  Last month, Haupt made headlines by divulging to the media that, long ago, his former client told him that members of the Chicago mafia “delivered a package” to the golf course.  According to Haupt, the “package” was the dead body of a famous missing person who, to this day, remains buried on the course.

Whose body?

James Hoffa.    You can read the story at Golf Digest.

hoffa

The 230th #fiveforfriday legal ethics quiz.

Welcome to the 230th #fiveforfriday legal ethics quiz!

Today I’m going to relate both the date and the quiz number to a video of a friend’s performance at a dance recital last weekend.

Oh, wait.   That’s not what I’m going to do.  To my friend the dancer: you can now relax.  Unless you need defibrillation.

No, today I’m going to share a story of my foggy brain, bad math, and dashed hopes.

As most know, I spend much of the winter using this to bemoan the temperature.  I like it hot.  Which is exactly why I’ve loved most the past 10 days or so.

Yes, “most.”

I’ve gotta confess: yesterday morning felt cold.  I fully understand that it was 61.  Still, debating whether to wear a long sleeve shirt on my run, I texted Jenn, a friend who shares my thoughts on winter: “is it bad that I think it feels too chilly today?”  Jenn, who is not the dancer mentioned above, replied that it was not, that she felt the same way.

Flash forward to this morning.

Again, it was 61 as I prepared to run.  As breezy as yesterday, but much cloudier and bit damp, today’s debate wasn’t over sleeve length.  It was whether I should wear my gloves!  Don’t worry, I didn’t, and within a mile I had a nice sweat going and started to do what I do on most Friday morning runs: contemplate this column, and how to tie it to the date or quiz number.

Soon, it hit me: 84 is my perfect and preferred temperature. And what’s 84? It 23 + 61.  On this blog, that’s close enough to 230 and 6/11.

Then something else hit me: wouldn’t it be awesome if 61 Fahrenheit were 23 Celsius?!?!

Apparently, my brain was broken.

In fact, my brain can get foggy during long runs.  I used to think it took until approximately the 23-mile mark of a marathon. It’s at that point where, if I haven’t fueled correctly, my brain starts playing tricks on me.

Sometimes the tricks are minor: I struggle with basic math, having to work too hard to figure out if my current pace over the remaining miles will allow me to finish at or near my goad.

Other times, the tricks are a bit more serious. True story: around mile 23 of the 2011 Philadelphia Marathon, I wondered if I was lost.  Yes, despite running with hundreds of others who were also wearing race bibs, on a road lined with spectators, mile markers, and water stations, I thought I might be off the course.

Anyhow, given that today’s run was only 5.07 miles, the part of my brain that does math apparently fogs up much sooner than I thought.

Why do I say that?

Because the thought that 61 Fahrenheit might equal 23 Celsius struck me about 3 miles into a 5-mile run.  Yet it wasn’t until I got home, changed, made coffee, and used an online converter that I learned that, in fact, 61 F converts to 16 C.  Not even close!

I can hear you now:  don’t be so hard on yourself Mike! How were you supposed to know?

Because I grew up in Vermont!! And, when I grew up, they had these things called “basic competencies” that they started teaching us early and tracked throughout our academic careers.  Things like “giving directions” and “making change.”  Now that I think about it, pretty much all the things that we don’t need to do on our own these days.  Anyhow, “temperature conversion” might not have been one of the basic competencies.  Still, for a long, long time, I’ve known that when it comes to the temperature:

F ~ (9/5C + 32)

Being lazy, I’ve modified it to:

F ~ (2C + 32)

Still, this morning, I could not figure out on my own that (2*23 + 32) is nowhere close to 61.

Foggy brain. Bad math. Hopes dashed.

Onto the quiz!

the-quiz

Rules

  • Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Questions 1 & 2

Everyone knows I often mention the 7 Cs of Legal Ethics.  Earlier this week, I spoke with student-clinicians at Vermont Law School’s South Royalton Legal Clinic.  Their quiz on the 7 Cs included this question:

  • “Let’s imagine that upon passing the bar you accept a job with a state agency. Your first assignment is familiar: it involves a matter you worked on while in the clinic.  Which 2 Cs of legal ethics jump to mind?”

The scenario is a variation of a scenario that can, and often does, confront any lawyer.  So, Friday readers have the same task: identify the 2 Cs of Legal Ethics implicated by the scenario.

Question 3

 Your office employs Non-Lawyer.  In a new matter, Non-Lawyer has a conflict that, if Non-Lawyer were a lawyer, would prohibit Non-Lawyer from accepting the representation.  Which is most accurate?

  • A.  Non-Lawyer’s conflict is imputed to all lawyers in the office and the office must decline the representation.
  • B.  Non-Lawyer’s conflict is imputed, but only to any lawyer in the office who regularly supervises Non-Lawyer.
  • C.  A comment to one of the rules indicates that while Non-Lawyer’s conflict is not imputed to any lawyer in the office, Non-Lawyer should be screened from involvement in the new matter.
  • D.  Imputation depends on whether the matter is transactional or involves potential litigation.

Question 4

Last week, I presented to members of the Vermont Association for Justice.  My topic was professional responsibility and “The Golden Rule.”   What was the focus of the discussion?

  • A.  The rule that prohibits unreasonable fees.
  • B.  Trust Account Management/Bookkeeping
  • C.  The advertising rules.
  • D.  Closing arguments and the general prohibition on asking jurors to put themselves in the shoes of the victim or a witness.

Question 5

I often urge lawyers not to share any details of client matters, even if doing so doesn’t violate the prohibition on disclosing information relating to the representation of a client.

Reginald Haupt is a lawyer in Georgia.  In 1982, he was suspended from practice for 6 months for commingling.  In 2006, he was convicted of securities fraud and sentenced to 4 years in prison.

In the 1970’s, Haupt represented a client who owned a golf course that was frequented by members of the Chicago mafia.  Last month, Haupt made headlines by divulging to the media that, long ago, his former client told him that members of the Chicago mafia “delivered a package” to the golf course.  According to Haupt, the “package” was the dead body of a famous missing person who, to this day, remains buried on the course.  By the way, the golf course is in Georgia, not New Jersey.

Whose body?

Unauthorized practice or work-from-anywhere? An encouraging update from New York.

The pandemic changed the way we do things.  Some changes are bound to become permanent. One that piques my interest is the pandemic’s impact on the profession’s view of virtual practice.

Last month, the New York State Senate approved a bill to repeal a law requiring NY lawyers who reside out-of-state to maintain a physical office within New York.  As Reuters noted here, the NY bill “has big implications for attorneys looking to stay remote after the coronavirus pandemic.”

Karen Rubin writes The Law for Lawyers Today, one of my favorite legal ethics blogs.  Last week, Karen posted For Lawyers, work-from-anywhere might be the new model: NY & Florida developments. In addition to the New York bill, Karen refers to the Florida Supreme Court’s decision to approve an advisory opinion issued by the Florida State Bar’s Standing Committee on the Unauthorized Practice of Law.  The opinion concludes that a lawyer who is licensed in another state, but not in Florida, does not violate Florida’s rules on unauthorized practice by providing legal services to out-of-state clients on matters not involving Florida law while working remotely from Florida.  I blogged about the Florida opinion here.

In the post, Karen notes:

  • “The work-from-anywhere concept was already percolating in the form of “virtual law offices” when the COVID-19 pandemic arrived and accelerated the acceptance of new practice models using remote technology to reach clients, courts and each other.”

Indeed, in 2019, the Utah State Bar issued this advisory opinion.  Referring to a similar opinion from Ohio, the Utah opinion includes my favorite quote on issues associated with working remotely and unauthorized practice:

  • “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.”

 

Again, as Karen writes, the pandemic seems to have “accelerated” the bar’s acceptance of remote work.  Last December, I posted ABA issues common sense guidance on working remotely.  The post discusses the ABA Formal Advisory Opinion 495 and it conclusion that remote practice, subject to certain caveats, does not constitute unauthorized practice.  Karen’s post references similar caveats in the Florida opinion, stating that “[t]he now-official opinion raises these guardrails:

  • you can’t establish a ‘place of business or office’ in Florida (your porch, den, etc. doesn’t count);
  • your work must be solely for your regular (non-Florida) clients, on matters that don’t pertain to ‘Florida law; and
  • you can’t ‘hav[e] or [creat[e] a public presence or profile in Florida as an attorney.’”

I liked Karen’s statement that the Florida opinion “gives official sanction to non-Florida-licensed snowbirds and others who want to sojourn in the Sunshine State and continue to service their non-Florida clients.”

Lessons from the pandemic suggest that “work-from-anywhere” can, well, “work.” I’m encouraged that the profession is trending towards what I think is a commonsense approach to remote practice.  

IMG_5155

 

Mandatory Malpractice Insurance? An important Vermont survey.

Vermont lawyers are not required to carry malpractice insurance or to notify clients that they don’t.  A joint committee comprised of members of the Professional Responsibility Board and the Vermont Bar Association’s Board of Managers is studying whether that should change.  Later this year, the committee will issue a report in which it will either:

  1. recommend that the PRB and VBA propose that the Supreme Court adopt a rule requiring attorneys to carry malpractice insurance; or,
  2. recommend that the PRB and VBA propose that the Supreme Court amend the Rules of Professional Conduct to require lawyers who do not carry malpractice insurance (or whose coverage lapses) to notify clients and prospective clients; or,
  3. recommend that Vermont maintain the status quo.

Oregon and Idaho are the only two states that require lawyers to carry malpractice insurance. Oregon has done so for decades.  It’s a mandatory bar and lawyers obtain insurance via the state bar’s Professional Liability Fund.  In 2019, the Idaho Supreme Court approved a recommendation from the Idaho State Bar and required lawyers to purchase insurance on the open market.

Several states require lawyers who do not carry malpractice insurance to notify their clients.  For example, Rule 1.19 of the New Hampshire Rules of Professional Conduct requires lawyers in the Granite State to notify a client “at the time of the client’s engagement of the lawyer” if the lawyer does not maintain professional liability insurance in amounts of least $100,000 per occurrence or $300,000 in the aggregate.  The rule also requires lawyers to notify clients if the coverage ceases or falls below those minimums.

Still other states take a different approach, requiring lawyers to disclose their insurance on status on the annual licensing statement and making that status available on the licensing body’s website.  Included in this group are Maine, Massachusetts, and Rhode Island.

Finally, many states do not require insurance or disclosure of a lack thereof.

A chart of all 50 states is here.

The Committee wants lawyers to weigh in. To that end, the Committee created this survey. Last week, the VBA sent the survey to members.  As Vermont is not a unified bar, the Committee welcomes survey responses from non-VBA members.  The deadline is June 15.  Again, the survey is here.

Need more information? Earlier this year, the Washington Supreme Court published for comment a proposed rule that would require disclosure of a lawyer’s malpractice insurance status.  The proposal follows work done by Washington’s Mandatory Malpractice Insurance Task Force.  In 2019, the Task Force issued this report.  In my view, it’s the most current and thorough review of malpractice insurance landscape.

Legal Ethics

Tech Competence and . . . flipping the bird?

It’s been a while since I’ve posted.  I love easing my way back into blogging with quick hitters.  So, without further ado:

Tip #1.   During a remote hearing, whether angry at yourself, opposing counsel, the court, or a screen that’s blank, frozen, or otherwise not working properly, don’t “flip the bird” at your camera.

Tip #2.  If you forget Tip #1, be honest when the court asks you what it just saw.

Today’s post comes thanks to a tip from Catamount Law’s Samantha Lednicky.  Last week, Sam sent me this order issued by the Michigan Court of Appeals.  The ABA Journal and Detroit Free Press have coverage.

I leave further reading to curious minds.

Flip the Bird

Related Posts:

Preparing for a remote hearing? Maybe check your client’s screen name

Tech Competence & Cats

Tech Competence Posts:

Go here for all my posts categorized or tagged as “tech competence.”

Monday Morning Honors #229

Happy Memorial Day.

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

Honor Roll

  • Karen Allen, Karen Allen Law
  • Janis Barquist
  • Penny Benelli, Dakin & Benelli
  • Geoffrey Bok, Esq.
  • Teri Corsones, Executive Director, Vermont Bar Association
  • Andrew DelaneyMartin, Delaney & Ricci Law Group
  • Heather Devine, Costello Valente & Gentry
  • Jennifer Emens-Butler, Director of Communication & Education, Vermont Bar Association
  • Benjamin Gould, Paul Frank + Collins
  • Anthony Iarrapino, Wilschek & Iarappino
  • Glenn Jarrett, Jarrett & Luitjens
  • Deborah Kirchwey, Law Office of Deborah Kirchwey
  • Jeanne Kennedy, JB Kennedy Associates, Blogger’s Mom
  • Elizabeth Kruska, President, Vermont Bar Association
  • John Leddy, McNeil Leddy & Sheahan
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
  • Keith RobertsDarby Kolter & Nordle
  • Jim Runcie, Ouimette & Runcie
  • Brice Simon, Breton & Simon
  • Jay Spitzen, Esq.
  • Jonathan Teller-Elsberg, Sheehey Furlong & Behm
  • The Honorable John Valente, Vermont Superior Judge
  • Jack Welch, Esq.
  • Jason Warfield, Candidate for Admission to the Vermont Bar

 Answers

Question 1

There’s a rule that prohibits a lawyer from communicating about the subject of the representation with a person that the lawyer knows is represented by another lawyer in the matter.

Which is NOT an exception to the prohibition?

  •   A.  The other lawyer consents to the communication.
  •   B.  The communication is authorized by law.
  •    C. The represented person initiates the communication. V.R.Pr.C. 4.2, Cmt. [3].
  •   D. Trick Question.  A, B, and C are the 3 exceptions to the rule.

Question 2

Attorney called me with an inquiry. I listened, then replied, “yes, but only in an amount reasonably necessary for the purpose.” You may assume that my response accurately (and exactly) quoted the rule.

Given my response, Attorney asked whether the rules permit Attorney to:

  •  A.  review an adverse party’s social media platforms.
  •   B. deposit Attorney’s own money into a client trust account.  V.R.Pr.C. 1.15(b).
  •  C.  engage in ex parte communications with jurors post-trial.
  •  D.  take time off to relax.

Question 3

Communication is one of the 7 Cs of legal ethics.

Several rules require a lawyer to secure a client or former client’s ___________  __________ before acting.   The rules define ___________ __________  as:

  • “An agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”

The quoted language is the definition of what phrase?

INFORMED CONSENT.

Question 4 

This is a tough one.  While self-reporting might be advisable in response to each, which is the only event that, by rule, a Vermont lawyer is required  to self-report?

  • A.  trust account overdrafts.
  • B.  adverse malpractice judgements.
  • C. discipline imposed in another jurisdiction.
  • D.  criminal convictions.

V.R.Pr.C. 8.3 imposes a duty to report “another lawyer.”  So, generally, there’s no duty to self-report violatios of the Rules of Professional Conduct.  However, per Rule 20(A) of Supreme Court Administrative Order 9, a lawyer who is admitted in Vermont and who is disciplined in another jurisdiction must promptly inform disciplinary counsel.

 Question 5

Looking through the list of notable events to have occurred on May 28 in history, two are related to the law, share a connection, and reminded of my mother.

On or about May 28, 1431, this person was captured while wearing men’s clothing.  Having been convicted of wearing men’s clothing earlier in the same year, the person was charged with heresy and with being a witch.  The person was convicted, sentenced to death, and executed on May 30.

Nearly 500 years later, on May 28, 1923, the United States Attorney General announced that it was legal for women to wear trousers in public.  Yes, the United States Attorney General actually had to make such an announcement.

Sidebar: today is my mother’s youngest sister’s birthday.  Startlingly, Aunt Helen Anne’s birthday is not on today’s list of historical events! Happy birthday AHAB!!!

Anyhow, who was executed as a heretic and witch on this weekend in 1431?

Your hint (and reason I was reminded of my mother): my mom’s maiden name is Jeanne Bonneau.

JOAN OF ARC

Joan of Arc

Five for Friday #229

Welcome to Friday and the 229th #fiveforfriday legal ethics quiz!

Today is National Road Trip Day, National Don’t Fry Day, and National Cooler Day.  I plan to honor each this weekend.

Tomorrow, I’m making a road trip to Schenectady to run Sunday’s Miles on the Mohawk Marathon.  The race day forecast calls for clouds, a chance of light rain, and temperatures in the high 40’s and low 50’s. Not only perfect marathoning weather, but perfect weather for my skin and bald head not to burn, which is the exact issue – overexposure to the sun – about which National Don’t Fry Day intends to raise awareness.

Upon finishing, I’ll hop back in the car and drive to Lake Dunmore where the First Brother is camping this weekend.  Now, today is also National Brisket Day and National Burger Day.  Nobody makes better brisket than my brother, but he’s not bringing his smoker to the campground. Perhaps we’ll have burgers instead.  Regardless, our cooler will remain within easy reach as we sit by the fire Sunday night.

Like mine, I hope your long weekend includes activities that, while legal, have nothing to do with the law or practice thereof.  Enjoy!

Onto the quiz.

Rules

  • Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

There’s a rule that prohibits a lawyer from communicating about the subject of the representation with a person that the lawyer knows is represented by another lawyer in the matter.

Which is NOT an exception to the prohibition?

  •   A.  The other lawyer consents to the communication.
  •   B.  The communication is authorized by law.
  •   C.  The represented person initiates the communication.
  •   D.  Trick Question.  A, B, and C are the 3 exceptions to the rule.

Question 2

Attorney called me with an inquiry. I listened, then replied, “yes, but only in an amount reasonably necessary for the purpose” allowed by the rule.  You may assume that my response accurately (and exactly) quoted the rule.

Given my response, Attorney asked whether the rules permit Attorney to:

  •  A.  review an adverse party’s social media platforms.
  •  B.  deposit Attorney’s own money into a client trust account.
  •  C.  engage in ex parte communications with jurors post-trial.
  •  D.  take time off to relax.

Question 3

Communication is one of the 7 Cs of legal ethics.

Several rules require a lawyer to secure a client or former client’s ___________  __________ before acting.   The rules define ___________ __________  as:

  • “An agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”

The quoted language is the definition of what phrase?

Question 4

This is a tough one.  While self-reporting might be advisable in response to each, which is the only event that a lawyer is specifically rto self-report?

  • A.  trust account overdrafts.
  • B.  adverse malpractice judgements.
  • C.  discipline imposed in another jurisdiction.
  • D.  criminal convictions.

 Question 5

Looking through the list of notable events to have occurred on May 28 in history, two are related to the law, share a connection, and remind of my mother.

On or about May 28, 1431, this person was captured while wearing men’s clothing.  Having been convicted of wearing men’s clothing earlier in the same year, the person was charged with heresy and with being a witch.  The person was convicted, sentenced to death, and executed on May 30.

Nearly 500 years later, on May 28, 1923, the United States Attorney General announced that it was legal for women to wear trousers in public.  Yes, the United States Attorney General actually had to make such an announcement.

Sidebar: today is my mother’s youngest sister’s birthday.  Shockingly, Aunt Helen Anne’s birthday is not on today’s list of historical events! Happy birthday AHAB!!!

Anyhow, who was executed as a heretic and witch on this weekend in 1431?

Your hint (and reason I was reminded of my mother): my mom’s maiden name is Jeanne Bonneau.

the-quiz

Wellness Wednesday: might adopting some pandemic-related changes improve the profession’s well-being?

We know that the pandemic changed how, when, and where we work.  We also know that some of the changes will remain once the pandemic concludes.  Today, I write to share two developments that, to me, provide insight into pandemic-related changes that may prove beneficial to the profession’s well-being, thus warranting consideration as to whether they should become permanent aspects of how, when, and where we work.

wellness

The first development comes from Florida.

Last week, the Florida Supreme Court approved an advisory opinion issued by the Florida State Bar’s Standing Committee on the Unauthorized Practice of Law.  The opinion concludes that a lawyer who is licensed in another state, but not in Florida, does not violate Florida’s rules on unauthorized practice by providing legal services to out-of-state clients on matters not involving Florida law while working remotely from Florida.  The Legal Profession Blog and ABA Journal reported the Court’s decision to approve the opinion.

The advisory opinion cites to similar conclusions reached by the ABA and the Utah State Bar.  Those of you who recall my post ABA issues common sense guidance on working remotely will not be surprised to learn that I’m a fan of the Florida opinion. It’s a post in which I used this hypo to introduce the ABA and Utah opinions:

“Imagine this:

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

I remain of the opinion that the Utah State Bar nailed it:

  • “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.”

 Returning to the Florida opinion, I support it even independent of any connection to well-being. However, I’m interested by (and appreciative of) the fact that the Florida committee went out of its way to note a comment that an individual lawyer submitted in support of the proposed opinion.  The Committee wrote:

  • “In light of the current COVID-19 pandemic, the Standing Committee finds the written testimony of Florida-licensed attorney, Salomé J. Zikakis, to be particularly persuasive: ‘I believe the future, if not the present, will involve more and more attorneys and other professionals working remotely, whether from second homes or a primary residence. Technology has enabled this to occur, and this flexibility can contribute to an improved work/life balance. It is not a practice to discourage.'”

No, it is not!

The second development is actually an older story.

In early May, Above The Law posted Ropes & Gray’s Reopening Plan Puts An End To The 5-Day, In-Person Office Work Week For Associates.  The post reports on the return-to-work plan announced by one of the nation’s largest law firms.  ATL applauded the firm’s phased re-opening and the flexibility associated with the “ramp-up time the firm is allowing [staff] to reacquaint themselves with office life.” In addition, ATL noted statements that the firm’s chair included in a memo to staff that announced the plan:

  • “No matter what phase we are in, we endorse flexibility post-pandemic. We don’t expect that we’ll ever mandate a five-day a week in-office environment.”

Here here.  Management’s endorsement of flexibility demonstrates a commitment to the well-being of both staff and the organization as a while.  Indeed, as the Florida lawyer noted in the comment above, flexibility contributes to a healthy work/life balance.

Making permanent some of the changes caused by the pandemic won’t be a bad thing.