Wellness v. Well-Being

It’s Wellness Wednesday!  Or, better yet, it’s Well-Being Wednesday.

At tomorrow’s Mid-Year Meeting of the Vermont Bar Association, I’m presenting a CLE that will include a discussion of attorney wellness.  The seminar will open with a look at the recommendations made by Vermont Commission on the Well-Being of the Legal Profession in its State Action Plan.

The Commission grew out of a report from the National Task Force on Lawyer Well-Being: The Path to Well-Being: Practical Recommendations for Positive Change , a report, in turn, that grew out of the ABA/Hazelden study that found ““substantial and widespread levels of problem drinking and other behavioral health problems in the U.S. legal profession.”  You can read more about the Hazelden study here.

In short, the study showed that the profession isn’t well. It suffers from a behavioral health problem.  That’s wellness, or more to the point for the profession, a lack thereof.

Well-being is different.  To oversimply, I view it as the proactive steps we take to stay healthy & happy. While funding a Lawyers Assistance Program that will help lawyers who are facing serious health issues is important, so is well-being.  As they say, an apple a day.

Here’s a great example.

On Monday, an attorney called me with an ethics inquiry.  I’m all about mixing business with pleasure, so we also chatted about basketball.  Specifically, tomorrow’s UVM v. Florida State game in the opening round of the NCAA tournament.  Tip-off is at 2:00 PM in Hartford, CT.

Vermont

The attorney told me that she’s going.  She’s taking her son.  When he initially asked, the attorney’s reaction was something like “I can’t miss a day of work.”  But, then, the attorney said to herself “yes, I can.  This is exactly why I work for myself.”

That’s well-being.

As I’ve blogged, make time for what matters.  Family time matters.

Go Cats Go!

For more great ideas on well-being and how to make it part of your office culture, check out the ABA’s Well-Being Toolkit Nutshell: 80 Tips for Lawyer Thriving.  It’s a cool little flier that is chock full o’ tips and links to other resources.  Also, if you work in a firm, consider the ABA’s Well-Being Pledge. The list of signatories grows by the day.

 

 

 

Wellness Wednesday: Meet Molly Gray

It’s Wednesday, so you know what that means!

I like to use the Wellness Wednesday posts to introduce you to members of the legal profession who make sure to make time for non-legal, non-lawyerly things. As the VBA’s Jennifer Emens-Butler says, “pursuits of happiness.”  Links to my prior posts on lawyers and their non-lawyerly interests appear at the end of today’s blog.

Today, I’d like to introduce you to Molly Gray.

Molly Gray's Profile Photo, Image may contain: Molly Gray, smiling, standing

Molly is an assistant attorney general. She’s also a top-notch cross-country skier who grew up on a working farm. Molly was kind enough to agree to answer questions that are loosely related to her background, legal ethics, and attorney wellness.  All mistakes and typos are mine, not Molly’s.

MK:Thank you for doing this!  Like me, you grew up in Vermont. Unlike me, it wasn’t near the Burlington airport. Tell us a little about life as Molly Gray before you went to law school?

 MG: Thanks for reaching out!   Where to begin, I grew up on a farm. A real working vegetable, fruit and dairy farm in Newbury on the Connecticut River. I was born on the farm. Yes, in the farm house in the early 1980s. My parents retired from competitive ski racing and shifted all that competitive energy to farming. They have an indomitable love of labor, Vermont and being outside. The skiing, at least, was contagious. I attended Oxbow High School (that would be the Oxbow “Olympians”) and a ski academy in southern Vermont, the Stratton Mountain School. All the skiing and probably farming in those early years, led to a scholarship to ski for the University of Vermont. I am extremely fortunate. After four years of racing, a budding interest in government, law, and international relations drove me, like my parents, to zero in on something new; an eventual legal career. That being said, I was 22 and had never really left Vermont! Ultimately, I attended Vermont Law School, but there was quite the eye-opening journey in getting there several years later

 (MK Note:  in 2015, VTDigger featured Molly’s parents’ farm)

 

Molly & her parents

(Molly’s parents & her brother)

MK:  Very interesting!  So much information. But first things first.  I have roots in the Upper Valley.  My mom grew up in Bradford and was a Bradford Academy Admiral.  In my job, I often preach a lawyer’s duty of competence.  As a Newbury native, what is the only competent way to pronounce your home town?

MG:  You had mentioned the Upper Valley connection. You are aware then of the friendly rivalry between Bradford folks and the community in Newbury. Frank Bryan once said Newbury is the town that time forgot. That’s probably about right.   It is “New Bury.”  It’s an “ury” instead of an “erry” and the “B” is right there with the “New.” “NewBury”

MK:  Professor Bryan was my favorite professor at UVM!  Speaking of UVM, you skied for the Cats.  What were your events? Also, I don’t think people realize how amazing it is to receive a ski scholarship to UVM. Only 3 schools have won more national championships.  That means that UVM is to college skiing what Duke is to men’s college basketball. Was UVM your dream all along?

MG: What a great time to talk about skiing – the University of Vermont Ski Team just hosted NCAA’s and came in second behind Utah. Go Cats! I will quietly admit that there was a short-lived and naive dream of skiing for CU Boulder but the then Director of Skiing, Chip LaCasse, to his credit, was recruiting locally (rather than internationally) and gave a handful of Vermonters opportunities of a lifetime.

I can’t comment on Duke basketball, but UVM skiing is not for the faint of heart. The nordic ski team trained every day, some days twice per day, with the exception of Monday, from August to March and all summer long. Races ranged from 5kms to 20kms, both classic and skate, with the occasional relay or sprint relay. Although skiing is an individual sport, in college you race as a team. Each Thursday we would load up the vans and drive to races or “carnivals” hosted by colleges across New England. Alpine and nordic team results would be combined after two days of racing with one collegiate team coming out on top. As you might imagine, there were UVM traditions to be upheld and no shortage of rivalries.

I raced all four years (not always fast) and served as a captain. Above all my teammates became some of my closest friends and remain so to this day.

MK:  Colorado tries its best to beat UVM! That would’ve been a conflict of interest! #ThisIsVermont  The Buffs loss was our gain.

All kidding aside, great answer!  A few things.

First, the work required.  Your success as a skier didn’t come by accident.  The dedication to the training.   I can’t imagine the time commitment!  I suspect that growing up on a working farm was like skiing.  Both probably involved lots of hard work, at hours that most people weren’t up, in weather conditions that kept most people inside.  Did lessons you learned on the farm help with being a competitive skier?  Did both (or either) help you to tackle the workload that is the first year of law school?

MG: Thanks! Although I have to say this interview is making me sound super tough and disciplined. I’m not! I still struggle with an early morning workout. To answer your question though, I do think growing up on a farm instilled an inevitable attraction to hard work and being outside. Farming, and having parents who do not shy away from a little healthy competition, probably left me and my siblings constantly self-imposing physical challenges–why carry one flat of strawberries when you can carry 2 or 3 or by end of summer 4. Equal parts training and efficiency. Without question, managing school work while ski racing (or vice versa) at UVM was great preparation for law school. I also came to appreciate, as I am sure many in the legal community do, that the most productive, “clear-headed” work, comes in the hours after a good workout.

 MK: Clearing the head.  That’s wellness!  I’m with you though: as much as I love the idea of sunrise runs that I finish before work, those early wake ups are NOT fun.  But, speaking of wellness, do you still ski?  In legal ethics, I often talk about conflicts.  For some athletes, the conflict that exists between doing something for enjoyment vs. doing it as a competitor is too much to overcome.  So, once they stop competing, they give up the sport. Having competed at the highest levels, do you ever find it difficult to ski for the pure enjoyment of it??  Conversely, I still love to run even though I’m not as fast as I used to be. As much as I love it, there are times where what I wouldn’t give for just one more race as good as I once was.  So, even if you’re out enjoying a beautiful & relaxing day on the trails, does your mind ever wander to that feeling you used to have as you waited at the starting line in Green & Gold?

MG:  This is a great question! I’ll admit I still have the occasional racing dream. It normally starts out with feelings of incredible and surprising speed and “I’ve still got it” followed by profound and mortifying exasperation. When I was racing, I loved sprint races — 1km qualification, followed by the top 30 or so skiers racing in heats of 5 or 6 with 2 or 3 racers progressing from each heat to a final heat. It is a more tactical, high-energy and spectator-friendly race. In my dream, I can “fake it” for the qualification round.

Some athletes learn to ski in order to race. Although my parents were competitive ski racers, to his credit, my father taught us to ski for the love of skiing. Racing came later, and random sprint dreams aside, I crave a good ski far more than the competition.

 MKLove the dreams! Mine are often daydreams as I’m running.  The body & brain re-living the feeling of a PR or great race.  I want to go back to something you said earlier.  You mentioned the life-long friendships with your teammates.  There’s something about the shared experience that forges bonds – not only among teammates, but among competitors. My closest friends are people I met thru basketball.  My “attorney wellness” is nourished by those relationships outside the legal profession.  Do you feel the same?

MG: Absolutely. This is by no means a dig at our profession, I am happy to run or ski with fellow attorneys but sometimes you have to be clear about why you are doing what you are doing. Basketball, skiing, running, should be cathartic. Inviting colleagues does not always make it so. Inevitably, you start talking about work. There have to be some ground rules!

I recall the first winter I did not ski race and did not have teammates. It was 8 months after graduating from UVM, I moved to Washington, D.C. to work for Rep. Peter Welch. I had not figured out the work-life balance and it was the first winter without racing or a true winter. My body was miserable and confused. On the advice of a friend, I joined a running club “Fleet Feet Sports” in Adams Morgan. A couple of the runners became close, non-work, running friends. We trained for the USMC marathon together and built a unique bond that was cathartic, supportive, competitive and limited to our non-work identities. It was terrific. I have lived in a lot of different places and try to forge these bonds.

IMG_1686 

(Molly, some of her UVM teammates, and Rally Cat)

MK: I like those bonds.  As lawyers, we seem to focus on discrete practice areas, tending to bond with others in the same area.  How’d you end up focusing on Nordic vs. Alpine?  Also, once we pick a practice area, we seem not to venture to another.  Do you downhill ski?

MG: I like the comparison to practice areas. I keep both sets of equipment in my car (just in case…). I learned to alpine ski at one of my favorite spots in Vermont, “Northeast Slopes” in East Corinth. It’s one of the oldest rope tows in the United States, and still operating today. One of Vermont’s hidden treasures. Why nordic? My mother was an alpine racer (an adrenaline chasing downhill racer) and my father was a nordic racer. Ultimately, nordic won over, but the practice areas are ever evolving.

MK:The T-Bar! We used to drive by the Slopes on our way to Bradford! Speaking of “ever evolving,” can we talk about training equipment for a moment? I often speak and blog about tech competence. A few years ago, I was running down Spear Street. The UVM ski team was coming other way. It was summer, so they were doing dry land training. They had these contraptions that looked like giant elliptical machines! I was fascinated.  Did you ever train on one of those?

MG: Roller skis! I haven’t put on a pair since 2006. Hundreds, likely thousands, of miles banked on those “contraptions”. I hope the design has improved. In my day they took a lot of balance, and although they were the closest thing to skiing (literally, short skis with wheels on them), they contributed to some pretty epic wipeouts. No breaks! While at UVM, we did an annual 50km or so fall training “ski” through Underhill, Cambridge and up to Fairfax. All told, roller skis do provide a unique way to see some beautiful parts of Vermont.

MK: Yikes!  Concrete ain’t exactly fresh powder!   I do not wear headphones on my runs, even the 20 milers.  Other runners think I’m nuts.  You are out for a long ski by yourself.  Headphones or not?

MG: Headphones? No. You’re out in the woods and its beautiful. Enough said.

 MK:Runners should take heed!  Ok, circling back for a moment. You mentioned an eye-opening journey from your last days at UVM to your first days at VLS.  Can you give us some highlights of the journey?

 MG: I really don’t want to bore your readers to death. In a nutshell, upon graduating from UVM in 2006, I worked as a Congressional campaign scheduler for longtime attorney and state senator Peter Welch. Over a 3-month period, Welch visited all 251 towns (and gores) in Vermont. Ultimately (and I would like to think the 251 “marathon” had something to do with it), Welch won that November and I was offered a job in Washington. A whole crew of Vermonters were hired. It was a tremendous honor to be part of that. Eventually, and because the world was calling, I went on to work for the Geneva-based International Committee of the Red Cross (ICRC). As a Congressional Affairs advisor in the Washington office, I worked with US lawyers and policymakers on international law issues including those arising at the detention facility at Guantanamo Bay, in Iraq and Afghanistan, and with the emerging use of drones. I travelled a lot during that time and led missions to Haiti, Uganda, the Democratic Republic of the Congo, the former Yugoslavia and Georgia. It was eye-opening to say the least! A far cry from Vermont, and as they say, “you can take a girl out of Vermont, but …,” by 2011 I was ready to come home and get cracking on law school.

 MK: Wow! Traveling the world to help people. You did Vermont proud!  And we’re lucky to have you back.  Okay, who are the 2 or 3 other skiers, living or dead, who you’d pick to be on your “dream relay team?”

MG:

  •  Bill KochA Vermonter and the first American ever to win a medal at the Olympics (Innsbruck ’76) in cross-country skiing. For all intents and purposes, he also invented the “freestyle” or “skate” technique.
  • Jessie DigginsNot a native Vermonter (I’m all about inclusivity) but she trains here now, and second American ever to win a medal at the Olympics (PyeongChang ’18) in cross-country skiing. She is an awesome ambassador for the sport and role model for girls.
  • Bob GrayYep, going with my old man. I’ll be honest, there is not a person on the planet who loves the sport as much as he does. All heart.

MKGood job getting Dad in there!  I read in the Valley News that he’s still kicking butt!

IMG_1699

(Molly and her Dad)

MK: Earlier you mentioned classic vs skate skiing.  With the duty of competence in mind, do you have any thoughts on a lawyer who shows up at Trapp Outdoor Center, rents classic skis, then proceeds to try to skate ski all over the property?

MG: Oh, no. Such a brave lawyer. That would be comparable to arriving criminal court and attempting to litigate a civil claim.  I’m always happy to advise on equipment and better yet meet for a ski and especially at Trapp’s.

MK: Molly – that is the perfect closing argument in your case to disbar me from cross-country skiing: “Kennedy is no Bill Koch: it’s like he’s a lawyer who brought a civil claim to criminal court.”

Thank you Molly Gray! Hope some people are inspired to get out and enjoy these last few weeks on the trails!

Related posts:

Five for Friday #152

Welcome to February’s final Friday.  You know what that means?

Spring is near!

Indeed, as @CounselorAdrian has hashtagged of late, #TheLightIsWinning.

That’s wellness!

On the other hand, I’m not certain that the light was winning in Shakespeare’s Sonnet 152.

I know next to nothing about Shakespeare.  With “next to” being defined as “immediately adjacent to, if not leaning upon.”  It’s my worst category in Jeopardy.  Even worse than “Opera.”

Sometimes I watch Jeopardy with my mom.  When “Opera” is a category, I drive her crazy by yelling “Puccini!!” as soon as each clue is revealed.

You know what?  Every now and then “Who is Puccini” is right!

Alas, I have no such luck in “Shakespeare.”  That’s because the easiest clues are worth $200.  Not 2 cents.

Anyhow, looking for something to tie to this week’s number, I stumbled across Sonnet 152.  It’s the last of the so-called Dark Lady sonnets.   Literally, here’s the CliffsNotes version.  In short, in Sonnet 152, the writer acknowledges that love has rendered him blind. It left him unable (or unwilling) to see what was obvious.

Thinking on it, I was reminded of an article that I read in yesterday’s ABA Journal: Jeffrey Bunn’s Is there anybody in there? Lawyers can learn something about mindfulness from Pink FloydIt’s worth a read.  Bunn observes:

  • “We have, regrettably, become comfortably numb to something we need to prioritize and invest in—lawyer well-being, including mindfulness and meditation.”

As most readers know, I’ve banged the drum on attorney wellness, both on this blog and at presentations around Vermont.  Overall, and over time, the reception has been positive.  The profession now realizes that it has to do something for lawyers who are coping with significant behavioral health issues.

Mindfulness?  Folks seem a little more fuzzy on that, less willing to agree that it’s a critical component of competence. That’s where Sonnet 152 and Comfortably Numb collide.

Please read the ABA Journal’s full post.  Otherwise, in short, Bunn argues that being mindful of mindfulness is a good thing for the profession.  His argument reminds me that attorney wellness is much more than helping lawyers whose practices are at risk due to crippling and unaddressed substance abuse & mental health problems.  Wellness includes mindfulness, or, as Bunn writes:

  • “Don’t get me wrong—I don’t believe that the legal profession is broken. But it certainly is sick. Sick, as in: Not sustainable as currently constituted. That’s because our profession comprises women and men who can all use a little TLC, once in a while.”

He continues:

  • “Mindfulness and meditation are important pieces of the well-being pie, and our institutions would do us all a great service—they’d do themselves a great service—if they could find a way to normalize those practices and bring them into the everyday realm of our profession. Neither is a panacea for everything that ails our profession, but they can provide us with precious time—time to sharpen our awareness, time to contemplate and reflect—time for ourselves, which, in turn, can benefit our institutions.”

In Sonnet 152, the speaker realized he’d long turned a blind eye to the obvious.  In a way, we’ve done the same.  Every single one of us needs a little TLC every now and then.  It’s time to open our eyes to mindfulness.

We cannot afford to remain Comfortably Numb.

Onto the quiz!

Rules

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception – but one that is loosely enforced – #5 isn’t open book.  (“loosely enforced” = “aspirational”)
  • 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
  • Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

Each of the following words is in the name of its own rule. Three of the rules involve the same type of ethics issue.   Which is associated with a different ethics issue than the other three?

  • A.  Prospective
  • B.  Meritorious
  • C.  Current
  • D.  Former

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.  Thus, Attorney asked whether the rules permit a lawyer to:

  • A.   charge for copying
  • B.   bill for travel time
  • C.   take time off to relax
  • D.   deposit the lawyer’s own money in a trust account

Question 3

There are two rules that impose a duty to take “reasonable remedial” action or measures.  One is the rule that addresses a lawyer’s duties when a nonlawyer assistant does something that would violate the rules if the lawyer did it.  The other is the rule that addresses a lawyer’s duties when the lawyer learns that:

  • A.   the lawyer deposited the lawyer’s own funds into a trust account
  • B.   opposing counsel violated the Rules of Professional Conduct
  • C.   the lawyer inadvertently communicated with a represented party
  • D.   a client engaged in criminal or fraudulent conduct related to a proceeding in which the lawyer represents the client

Question 4

Lawyer called me with an inquiry. I listened, then asked:

  • “I understand the first part: you have reason to believe that your client is going to commit a criminal act.  What I didn’t understand is this: is the criminal act going to result in substantial bodily harm to your client? Or to someone other than your client?”

Lawyer’s inquiry related to the rule on:

  • A.   Client confidences
  • B.   Withdrawal
  • C.   Concurrent conflicts of interests
  • D.   Duties of a Prosecutor

Question 5

Speaking of Shakespeare, what did Dick the Butcher suggest to Jack Cade that they do first?

See the source image

 

 

 

Monday Morning Answers #147

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

And, on Martin Luther King Day, here’s a quote from Dr. King that relates to the point I tried to make in the intro to the quiz:

 “On that day the question will be, ‘What did you do for others?'” 

(“The Three Dimensions of a Complete Life” sermon)

HONOR ROLL

ANSWERS

Question 1

In Vermont, if a prospective client meets with but does not retain a lawyer, the lawyer’s duty of loyalty is relaxed vis-à-vis the client, but another duty is not.

Which duty?

The duty of confidentiality.  Rule 1.18(b)

Question 2

There’s a rule that prohibits “qualitative comparisons” that cannot be factually substantiated.  A disciplinary prosecution under the rule is most likely to involve:

  • A.  a frivolous pleading
  • B.  a statement made during closing argument in a jury trial
  • C.  extrajudicial statements made to the press that are likely to prejudice an adjudicative proceeding
  • D.  attorney advertising

Question 3

With respect to the Rules of Professional Conduct, the phrase “acting through its duly authorized constituents” is in the rule on:

  • A.  the duties when representing an organization.  Rule 1.13(a)
  • B.  lawyers holding public office
  • C.  firm names & letterhead
  • D.  the unauthorized practice of law

Question 4

Here are 2 things I mentioned at CLE:

  1. last-minute changes to wire instructions;
  2. a prospective out-of-state client who claims to be owed money by a Vermonter, and who only communicates with you by e-mail

What topic was I discussing?

TRUST ACCOUNT SCAMS.   Here are some of my posts on scams:

Question 5 (Fill in the blank)

I often blog about Rule 1.1’s duty of competence.

Some might argue that when the answer is relevant to a witness’s credibility, competence includes knowing how long it takes to cook grits .

Proponents of that theory would assert that Vincent Gambini complied with Rule 1.1 by asking that “so, Mr. Tipton, how could it take you 5 minutes to cook your grits when it takes the entire grit eating world __________ minutes?”

20.  Vinny’s cross-examination of Mr. Tipton is here.

See the source image

 

 

 

Five for Friday #147: Under Pressure

Under Pressure.

I usually use the intro to the quiz to share a memory triggered by the week’s number.

Not today.

The staggering rates at which lawyers suffer from behavioral health issues have the profession at a crossroads.  To borrow a phrase, we are Under Pressure.  More precisely, the pressures on lawyers are not only driving lawyers from the profession, they’re killing lawyers.

Our response, or lack thereof, will shape the profession for decades.

Let me back up.

I’ve blogged , some have told me “ad nauseam,” on lawyer wellness.  My first post, Lawyers Concerned for Lawyerswas in May 2016.  My most recent was two days ago: Wellness Wednesday: an action plan.  There were at least 24 in the interim.

If the seemingly endless posts bother you, I’m not sorry.

Available data suggests that approximately 500 of Vermont’s licensed, employed lawyers are problem drinkers.  At least as many have likely suffered from problem anxiety or  problem depression within the past year.

I know, for a fact, that in the past 3 years, as many of Vermont’s licensed, employed lawyers have had their law licenses transferred to disability inactive status as did in the preceding 15 years.

I know, for a fact, that at least 5 of Vermont’s licensed, employed lawyers have taken their own lives since 2014.  I also know, for a fact, that at least 1 other died of alcohol abuse.

I wasn’t exaggerating when I said that we’re killing ourselves.

What’s this got to do with ethics?  Pretty much everything.

The first of the Rules of Professional Conduct requires lawyers to provide clients with competent representation.  Here’s a quote from last summer’s report of the National Task Force on Lawyer Well-Being:

  • “To be a good lawyer, one has to be a healthy lawyer.  Sadly, our profession is falling short when it comes to well-being.  The two studies referenced above reveal that too many lawyers and law students experience chronic stress and high rates of depression and substance abuse.  These findings are incompatible with a sustainable legal profession, and they raise troubling implications for many lawyers’ basic competence.” (emphasis added).

Last week’s quiz referenced James Valente’s fantastically competent rendition of the minutes of the Windham County Bar Association’s 2018 Annual Meeting sung to the tune of Queen’s Bohemian Rhapsody.  Quite cleverly, a team of lawyers submitted answers to  the quiz using the team name Under Pressure.  

(For those of you who don’t know, Under Pressure is a song by Queen and David Bowie.  The official video is here.  The version with the Freddie I remember is here.)

Last night, reflecting on what to post today, I listened to music. As I navigated my Amazon Music app, I stumbled across “Top Songs in Prime.”  Scrolling thru, there, at #88, was Under Pressure.  I’d have listened anyway, because I love the song.  Still, seeing the title made me think of last week’s quiz.

I like to sing along when I listen to music.  And I like to be right.  Exactly right.  So, despite having listened (and sung along) to Under Pressure countless times in my life, I Googled the lyrics.

Until last night, I’d listened, but never heard. The lyrics almost perfectly describe the pressures that the legal profession is facing.

For example:

It’s the terror of knowing
What the world is about
Watching some good friends
Screaming ‘Let me out’

That’s what 5 suicides are.

Next:

Turned away from it all like a blind man.
Sat on a fence, but it don’t work.

That’s what we’ve done for years. Ignored the problem.  Sat on the fence.

Neither works. Neither helps.

Here’s the part that most struck me:

‘Cause love’s such an old-fashioned word,
And love dares you to care for the people on the edge of the night,
And love dares you to change our way of caring about ourselves.
This is our last dance.
This is our last dance.
This is ourselves.

The Vermont Commission on the Well-Being of the Legal Profession recently released its State Action Plan.  Please read it.

It’s time to fund a Lawyers Assistance Program.

I dare you to care for the lawyers who are on the edge of the night.  The lawyers who, due to the stigma we’ve imposed, are too afraid to ask for help. If you don’t think the stigma is real, read this.

I dare you to change the way we think about caring about ourselves as a profession.

I dare you to love your fellow lawyers.

Our response the State Action Plan presents a chance to help to relieve the pressure.

We have to take the chance.  Because the problem?  This is ourselves.  And, absent action, this opportunity to act might be our last dance.

Under pressure.

Image result for freddie mercury and david bowie together

Onto the quiz.

Rules

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception – but one that is loosely enforced – #5 (“loosely” = “aspirational”)
  • 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
  • Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

In Vermont, if a prospective client meets with but does not retain a lawyer, the lawyer’s duty of loyalty is relaxed vis-à-vis the client, but another duty is not.

Which duty?

Question 2

There’s a rule that prohibits “qualitative comparisons” that cannot be factually substantiated.  A disciplinary prosecution under the rule is most likely to involve:

  • A.  a frivolous pleading
  • B.  a statement made during closing argument in a jury trial
  • C.  extrajudicial statements made to the press that are likely to prejudice an adjudicative proceeding
  • D.  attorney advertising

Question 3

With respect to the Rules of Professional Conduct, the phrase “acting through its duly authorized constituents” is in the rule on:

  • A.  the duties when representing an organization
  • B.  lawyers holding public office
  • C.  firm names & letterhead
  • D.  the unauthorized practice of law

Question 4

Here are 2 things I mentioned at CLE:

  1. last minute changes to wire instructions;
  2. a prospective out of state client who claims to be owed money by a Vermonter, and who only communicates with you by e-mail

What topic was I discussing?

Question 5 (Fill in the blank)

I often blog about Rule 1.1’s duty of competence.

Some might argue that when the answer is relevant to a witness’s credibility, competence includes knowing how long it takes to cook grits .

Proponents of that theory would assert that Vincent Gambini complied with Rule 1.1 by asking that “so, Mr. Tipton, how could it take you 5 minutes to cook your grits when it takes the entire grit eating world __________ minutes?”

I got no more use for this guy.

 

 

 

 

 

 

Wellness Wednesday: an action plan

On March 3, 2016, I posted my first blog on attorney wellness: Lawyers Helping Lawyers.  Since, I’ve raised the issue as often as possible on this blog and at continuing legal education seminars.  Today, I’m pleased to report that the Vermont Commission on the Well-Being of the Legal Profession recently issued its State Action Plan.

The Vermont Supreme Court created the Commission in response to a report from the National Task Force on Lawyer Well-Being.  That report, The Path to Well-Being: Practical Recommendations for Positive Change, made a series of recommendations in response to a study that found staggering rates of behavioral health issues among lawyers.  Relevant to my job as bar counsel, the national report noted:

  • “To be a good lawyer, one has to be a healthy lawyer.  Sadly, our profession is falling short when it comes to well-being.  The two studies referenced above reveal that too many lawyers and law students experience chronic stress and high rates of depression and substance abuse.  These findings are incompatible with a sustainable legal profession, and they raise troubling implications for many lawyers’ basic competence.”

Competence is the first professional duty set out in the Rules of Professional Conduct.

Again, Vermont’s state action plan is here.  When you have time, give it a read.  Here’s the concluding paragraph from the introduction:

  • “Our profession has a duty to deliver competent legal and judicial services that will serve to uphold the integrity of the justice system. We recognize that the recommendations that follow may impose costs on the profession. We are certain, however, that the benefits of these proposals outweigh the modest cost of implementing them. Neglecting the truths of the national report that issued and its focus on the elevated risks for mental illness and substance abuse will, we believe, impose greater, more damaging costs—both on our profession, the public and its confidence in the rule of law. We hope that these proposals will be recognized as responsibilities fundamental to the privilege of practicing law.”

I agree 100%  We cannot neglect the issue.  As a profession, we must follow-up on the action items.  We cannot congratulate ourselves on the Commission’s fantastic work only to relegate the plan to the digital equivalent of a shelf where it collects electronic dust until that long-off day when someone finds an archived version and says “Wow.  Great ideas. I wonder what ever became of them?”

Wellness

If you’re new to this topic, here are my various posts:

 

 

 

Legal Ethics & The Water Cooler

Yesterday, the ABA Journal posted its “Top 10 most-read legal news stories of 2018.”  The intro notes that “[l]awyers busy with research, conferences and other high-concentration tasks sometimes need a break. So it’s no surprise that the most-viewed articles on our website tend toward water-cooler topics . . .”

That’s consistent with the stats for this blog.  The most-read posts are the #fiveforfriday legal ethics quizzes.

Still, I find it interesting that 3 of the ABA’s most-read stories relate to legal ethics/professional responsibility, even if in a water cooler type of way.  So, I thought I’d share them, along with a personal note on a topic that we must move beyond the water cooler.

1. ‘Making a Murderer’ lawyer acquitted on stalking charge; he did ‘meow randomly,’ court told.

This was the most-read legal news story on the ABA Journal in 2018.

I’ve not blogged often on Making a Murderer.  To the extent I’ve mentioned it here or during CLEs, it’s been to note that Ken Kratz’s law license was suspended for 4 months for conduct unrelated to the prosecution of Steven Avery & Brendan Dassey.  Rather, the Wisconsin Supreme Court suspended his license in response to Kratz “sexting” a victim while prosecuting her ex for domestic abuse.  The order is here, with a CBS News story on the case here.

Anyhow, the ABA Journal’s most-read story of 2018 did not involve Kratz.  It involved Len Kachinsky.  Kachinsky is the lawyer who, among other things, agreed to let law enforcement interview Dassey without him (Kachinsky) being there.  A federal judge eventually concluded that Kachinsky’s representation of Dassey was “inexcusable both tactically and ethically.”

Earlier this month, Kachinsky was acquitted of felony stalking charges.  Per the ABA Journal, Kachinsky’s lawyer informed the jury that Kachinsky was quirky and “would be heard to meow randomly occasion,” but that some people found him “endearing.” Apparently the jury agreed.

In Vermont, a lawyer’s felony conviction violates Rule 8.4(b).

5. Utah bar ‘horrified’ over email blast sent with photo of topless woman

This was the 5th most-read legal news story on the ABA Journal in 2018.

For years, I’ve blogged on tech competence.  Indeed, earlier this month, the Vermont Supreme Court adopted the so-called “tech competence” comment to Rule 1.1, the rule that requires lawyers to provide clients with competent representation.

I don’t think that anyone at the Utah Bar violated the ethics rules.  Yet, “human error” resulted in an email to all active Utah lawyers including a photo of a topless woman.

Oops.

Many years ago, I was prosecuting a lawyer. I can’t remember the charge. I do remember that, on the day of the hearing, the lawyer sent an email to the hearing panel stating that  she would not drive to the hearing because her car’s “check engine” light had come on.  She purported to attach a picture of the “check engine” light.

It was a picture of her cat.

Tech competence is a thing.

9.  Lawyers rank highest on ‘loneliness scale,’ study finds

This was the 9th most-read legal news story on the ABA Journal in 2018.

Per the story, lawyers are lonelier than other professionals.  Here’s a quote from the post:

  • “Houston-area lawyer Scott Rothenberg tells the ABA Journal that loneliness and isolation may be a root cause of many lawyer issues. ‘There are these disparate problems like depression and suicide and substance abuse, in many respects tied together,’ he says.”

This is another topic upon which I’ve often blogged: lawyer wellness & well-being.  The ABA Journal story makes me think of “impostor syndrome.”   Remember, if loneliness or depression makes you feel like an impostor, YOU ARE NOT.

Yesterday, my dad’s wife sent me a gut-wrenching email.  Her son, my step-brother, died this summer.  His name was Todd.  For many, many years, Todd fought valiantly against troubles caused by substance abuse & mental health disorders.

In the e-mail, my dad’s wife mentioned that she’d been meaning to tell me that, coincidentally, on the day I posted the blog on “impostor syndrome,” she’d been reading through Todd’s journal.  She added that she wanted:

  • ” to tell you how accurate your post was in relation to the feeling of loneliness, due to the fact that Todd had lived for years trying to be someone who he really wasn’t, and feeling the need to lie, to pretend.”

She concluded by noting how sad it is to know that there are so many people who struggle with the same self-doubt & fear on a daily basis, tricked into feeling that way by behavioral health issues.

She’s right.

Attorney well-being is a topic that we, as a profession, must ensure remains at the forefront, well beyond “water cooler talk.”

 

 

 

 

Wellness Wednesday: STOP IT!

For those of you who remember Wellness Wednesday: EnoughI’m guessing that today’s post will be different than what you might expect from the headline.

For me, sometimes “wellness” is as simple as a smile or a laugh. And today’s story gives me both.

As reported by the ABA Journal, Houston Chronicle, Above the Law and other outlets, Judge Vanessa Gilmore issued a fantastic order this week.  Here’s the first line:

Whiny Lawyers

For those of you who skip straight to the end upon receiving a much-anticipated court order, here are the final few lines:

Whiny Lawyers 2

Not surprisingly, the order issued in response to a discovery dispute.  I can’t tell you how many complaints & inquiries I’ve received that are remarkably similar.

Judge Gilmore: I feel your pain!! Thank you for contributing to my wellness this week! Hopefully your order deters behavior that, in my view, is a gateway to the stress & frustration that detracts from wellness and drives good lawyers from the profession.

Oh, and on a more serious note, here’s to TJ Donovan, Rob McDougall and the lawyers & staff in the Attorney General’s Environmental Protection Division.  Yesterday, they took time to contribute to the wellness of others by volunteering at the Good Samaritan Haven in Barre.

Thank you TJ, Rob, and team!

Image may contain: 10 people, people smiling, people standing

 

 

Wellness Wednesday: “N O” is “O K”

The holiday season is upon us and, with it, invitations to parties & gatherings.   Enjoy them!  More importantly, let others enjoy them as well . . . on their own terms.

Those who know me know that I’m all about holiday cheer.  Actually, that’s not entirely true.  It’s paltering.  Rather, it’d be more accurate to say that those who know me know that I don’t limit my cheer to the holidays.

But remember this: it is perfectly okay for a lawyer at your firm’s holiday party to choose not to drink.

I first wrote about this two years ago in my post No Objection to “No, thank you.”  It bears repeating.

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 may 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.

“N O” is “O K.”

Wellness

 

Wellness Wednesday: You’re not an impostor.

Regular readers know that I find it difficult to embrace winter.  As a card-carrying member of No Shoes Nation, the season does little for my “wellness.”

See the source image

Indeed, my favorite winter was 2016.  It’s the year I ran the Surf City Marathon, collected this swag

Surf City.jpg

then spent a few days with this view.

San Diego

Last weekend, however, I decided to give winter a try.  So, on a fantastically sunny Saturday, I ventured to Trapp Family Lodge for my first attempt at cross-country skiing in nearly 30 years.

Let’s leave it at this: it’ll be quite a while until I’m mistaken for a competent skier.

I ran into Liz & Eric Miller in the parking lot. I should have hired them on the spot.  That way, my follies that followed would forever remain confidential & privileged.

Which gets me to the point of today’s post.

On the trails, I’m an impostor.  In the law, you are not.

Attorney Gabe MacConnaill took his own life in October.  He was married to Joanna Litt.  A few weeks ago, I blogged about Joanna’s heartbreaking letter in response Gabe’s suicide.  Joanna’s letter mentioned that her husband:

  • “felt like a phony who had everyone fooled about his abilities as a lawyer and thought after this case was over, he was going to be fired—despite having won honors for his work.”

There’s a name for what Gabe was feeling: impostor syndrome.

Last week, the ABA Journal posted Neha’s Sampat’s response to Joanna’s letter.  In it, Attorney Sampat challenged lawyers, firms and the profession to address the syndrome, referring to it as a “hidden source of attorney distress.”  Give it a read.

Some of the saddest cases I prosecuted as disciplinary counsel involved lawyers whose practices had cratered.  More often than not, those lawyers seemed, in a sense, relieved.  The gig was finally up.  They no longer had to pretend to be someone who, in their minds, they were not.

We need to discourage that mindset.

Summary judgment motions get denied.  Hearings don’t go exactly as planned.  People  – a group that includes the subset known as “lawyers” – make mistakes.

These are not signs that you don’t belong.

I’m no expert on how to address impostor syndrome.  Some resources”

To me, it comes down to this: be kind to yourself.  Nobody is perfect.  And not only that, we don’t expect you to be.

Keep on keeping on.  Sometimes the trail to this view includes stumbles along the way.

Ski 3