Five for Friday #138

I don’t like winter.  At all.

Anyhow, a few nonlawyer friends poked fun at lawyers in response to yesterday’s post on the Florida Supreme Court’s opinion on judges and their Facebook friends.  They found it comical that, only in the law, would you need 2 pages of “mumbo jumb” to define the word “friend.”

Point taken.

But, as I stare at 8 inches of snow, I wish more of you who wished for snow for the holidays would’ve consulted a lawyer before transmitting your wish. Because while we might have needed a lot of mumbo jumbo to define “friend,” we would have used that mumbo jumbo to specify that your wish:

  • “does not include, and in fact excludes, any holiday, religious or secular, that falls closer to the United States federal holiday known as ‘Veterans Day’ than to the United States federal holiday known as ‘New Year’s Day,’ with this clause referring to the ‘Veterans Day’ in any particular calendar year and the ‘New Year’s Day’ that falls in the next calendar year, as determined by the schedule published by the United States Office of Personnel Management, with ‘publishing’ including, but not being limited to, electronic availability.”

Axl did not sing about November Snow. This is ridiculous!

Snow Day

But it’s my fault.  My superstitions failed me.

I’m pretty lazy.   I put off even the simplest of tasks as long as possible, and then some.  One task that falls prey to my procrastination more often than others is changing over to winter tires.  Not this year.

No, this year I dropped off my car on November 6.  Part of my thinking was “if I put them on early, it’ll never snow!”  It’s like when I make sure to pack an umbrella when I drive to Fenway.  If I do, it won’t rain.

Fresh off my new lock screen having won the World Series for the Red Sox, I was confident I’d guaranteed a mild winter.

Apparently the umbrella theory doesn’t apply to winter tires.

Anyhow, cabin fever is already setting in.  But it’s not all bad.  The weather resulted in a very positive experience on the way to work.

I slipped and fell as I walked from the parking garage to the office this morning.  Two college-aged guys were walking from the other direction and saw me fall. I was sure they’d mock me.

Nope.

One clapped and gave me a high-five as he said “you saved the coffee! that’s awesome!”

He was right. I didn’t spill my coffee.  Years of crowded bars finally paid off.

And you know what?  As mad as I was at the weather, and as mad as I was at falling, and as mad as I was at knowing that 138 days from now we could very well be experiencing a similar storm, the guy made me laugh.  He changed my whole outlook on the day.  He won his 3-feet of influence.

Do the same for someone today.  You never know what a difference it’ll make.

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

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

  • “the rule refers to court costs and expenses of litigation, and says that repayment may be contingent upon the outcome.”

What did Lawyer call to discuss?

Question 2

With respect to legal ethics, the phrase “going up the ladder” is most often used in connection with the duties of attorney who:

  • A.  prosecutes criminal cases
  • B.  knows or should know that the attorney made a mistake
  • C.  is being paid by someone other than the client
  • D.  represents an organization

Question 3

Former Client thinks Attorney committed malpractice.  They meet.  Former Client is not represented, but is willing to accept Attorney’s settlement offer.

By rule, what must Attorney do before settling ?

Question 4

What’s the topic of the rule associated with these words & phrases:

  • extrajudical
  • a lawyer involved in the investigation or litigation of a matter
  • disseminated by means of public communication
  • will have a substantial likelihood of materially prejudicing the proceeding

Question 5

In honor of Stan Lee, who passed away this week . . .

Jennifer Walters graduated from the UCLA School of Law and eventually practiced law at the firm of Goodman, Lieber, Kurtzman, and Book.  There, she represented Arthur Moore, a client who had been charged with robbery.   The charge was dismissed after Walters successfully argued that all of the evidence against Moore had been seized during a traffic stop & search that violated the 4th Amendment.

Shortly thereafter, Moore disclosed information to Walters that caused her to go green with anger.  She was so angry that she punched him in the face, knocked him through the wall into the street, and disclosed his confidences to the crowd that gathered after he went crashing through the wall.  As a result, she was disbarred.

No matter, for Jennifer Walters, law was just a side job. Her true calling is as a super hero.

Who is Jennifer Walters when she transforms into her super hero alter ego?

 

 

 

 

 

Advertisements

Monday Morning Answers: #137

Welcome to Monday.  Friday’s questions are here.  (Yes, Clemson won!) The answers follow today’s honor roll.

clemson

Honor Roll

  • Karen Allen
  • Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labor
  • Cary DubeBergeron, Paradis, Fitzpatrick
  • Bob Grundstein
  • Tammy Heffernan
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy, Mom of the Blogger
  • Jordana LevineMarsicovetere & Levine
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Kevin LumpkinSheehey Furlong & Behm
  • Lon McClintock
  • Jeff MessinaBergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Jim Runcie, Ouimette & Runcie
  • Jay Spitzen, Esq.

Answers

 

Question 1

Lawyer called me with an inquiry. I listened, then said: “the rule says that your first duty is to try to maintain as normal an attorney-client relationship as possible.”

Given my statement, it’s most likely that Lawyer called out of concern that:

  • A.  Lawyer’s client suffered from a diminished capacity.  See, Rule 1.14(a).
  • B.  Lawyer’s client had presented false evidence to a tribunal
  • C.  Lawyer’s client had used Lawyer’s services to perpetuate a fraud
  • D.  Lawyer’s client had given false testimony in a deposition.

Question 2

Which is associated with a different rule or set of rules than the others?

  • A.  Commingling
  • B.   Qualitative Comparisons.
  • C.   Disbursements
  • D.  Held in connection with a representation

Generally, the advertising rules prohibit “qualitative comparisons” to other lawyers or firms.  Choices A, C & D are phrases associated with the trust accounting rules.

Question 3

As in all cases, the rules prohibit unreasonable fees in divorces & criminal cases.

With respect to fees, the rules also prohibit something else in divorces and criminal cases.

What is it?

Contingent fees.  Rule 1.5(d).

Question 4

Prospective Client meets with you.  Prospective Client indicates that Lawyer represents her, but that she wants a second opinion from you.

True or False:  the rules prohibit you from discussing the matter with Prospective Client absent Lawyer’s consent.

FalseRule 4.2, Comment[4].  Per the Reporter’s Note to the 2009 Amendments, “a new sentence clarifies that Rule 4.2 does not preclude communication with a represented person who is seeking a second opinion from a lawyer who is not representing a party in the matter.”

Question 5

Speaking of the Heisman Trophy . . .

. . .in 1962, President Kennedy nominated Byron White to the United States Supreme Court.  Justice White served until 1993, with Justice Ruth Bader Ginsburg replacing White upon his retirement.

25 years before being appointed to the Supreme Court, Justice White finished 2nd in the Heisman Trophy voting. He was an outstanding running back for the University of Colorado.  He’s the only US Supreme Court justice who also received votes in the Heisman race.

Justice White’s football skills resulted in a famous nickname.

What’s the nickname?

Byron “Whizzer” White was an All-American halfback and Heisman Trophy runner-up for the Colorado Buffalos.

Five for Friday #137: my college football injury.

Blogger’s note: warning – this post includes paltering.

Welcome to #137!

Another week, another failure on my part to connect the intro to the number.  But this week I have an excuse.  Given my plans for the weekend, I’m compelled to share the story of my college football injury.

That’s right – college football injury. Not many people can say they have one.  Even fewer who played high school football in Vermont can.  I’m one of the few.

College football is my favorite sport.  Clemson is my favorite college football team. Tomorrow night, the undefeated Clemson Tigers play at Boston College in a match-up between the 2nd and 17th ranked teams in the nation.  I’ll be there.

While now a Clemson fan, there was a time when I loved the Boston College Eagles football team like it was my job.  Because, it was my job.

I’ve often mentioned that I did my undergrad at UVM.  Paltering!  The truth is that I transferred to UVM in the middle of my sophomore year, transferred from Boston College.

I didn’t decide where to attend college until November of my senior year of high school.  The day before Thanksgiving, I visited BC.  At the time, the BC football team was enjoying its best season in decades, led by eventual Heisman Trophy winner Doug Flutie.  That week, the Eagles were ranked 10th in the nation and scheduled to face #12 Miami on the day after Thanksgiving.  While it was a road game, the hoopla and anticipation were beyond description.  As the kids would say today, on the day of my visit, campus was lit.

I watched the game back home.  It turned out to be one of the most iconic games in college football history, with Flutie’s miraculous Hail Mary winning the game in stunning fashion on the final play:

See the source image

Between the excitement on campus and the result of the game, I was sold.  BC it was!

Fast forward to my first few days on campus.  Part of my financial aid package was “work-study,”  which means I had to get a job.  Scanning the list of available work-study positions, one jumped out at me: a job with the football team.  Given the mania (still) surrounding the football team, I assumed it’d be filled before I could walk to the stadium to apply.

I was wrong. I got the job. One of the best jobs of my life.

It involved a variety of grunt work, but included pay, meals, free entry to the games, and a spot on the sidelines.  The only drawback? It caused my college football injury.

My sophomore year, BC had a good season and was invited to play in the Hall of Fame Bowl in Tampa.  It was a fantastic game.  My college football injury almost left me to watch it from the hotel, but I gamely made it to the stadium.

Back then, I was what I remain today: a pale-skinned Irish dude. So, a few weeks before we left for Tampa, I decided it’d be wise to tan.  Need a base before I hit beach!

It worked.  Sort of.  5 or 6 trips to the tanning salon later, I was no longer a pale-skinned Irish dude.

I was a bright red Irish dude who’d foolishly burned himself silly.

I’m not exaggerating.  The day we left for Florida, I woke up in extreme distress, with “sun” burn everywhere.  It was so bad that on the flight to the bowl game, the team’s medical staff stripped me of my clothes, laid me across 3 seats, and covered me in wet towels.  Once in Tampa, it was more of the same. I didn’t leave the hotel room until the night of the game.  I heard the beaches were great.

This weekend, I doubt I’ll bump into anyone who’d remember me from back then. But, per chance I do, and per chance that person says “hey, aren’t you the guy who . . .”  I’ll quickly interrupt and finish the sentence with:

“had a college football injury? Yes. Yes I am.”

Paltering lives!

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

Lawyer called me with an inquiry. I listened, then said: “the rule says that your first duty is to try to maintain as normal an attorney-client relationship as possible.”

Given my statement, it’s most likely that Lawyer called out of concern that:

  • A.  Lawyer’s client suffered from a diminished capacity
  • B.  Lawyer’s client had presented false evidence to a tribunal
  • C.  Lawyer’s client had used Lawyer’s services to perpetuate a fraud
  • D.  Lawyer’s client had given false testimony in a deposition.

Question 2

Which is associated with a different rule or set of rules than the others?

  • A.  Commingling
  • B.   Qualitative Comparisons
  • C.   Disbursements
  • D.  Held in connection with a representation

Question 3

As in all cases, the rules prohibit unreasonable fees in divorces & criminal cases.

With respect to fees, the rules also prohibit something else in divorces and criminal cases.

What is it?

Question 4

Prospective Client meets with you.  Prospective Client indicates that Lawyer represents her, but that she wants a second opinion from you.

True or False:  the rules prohibit you from discussing the matter with Prospective Client absent Lawyer’s consent.

Question 5

Speaking of the Heisman Trophy . . .

. . .in 1962, President Kennedy nominated Byron White to the United States Supreme Court.  Justice White served until 1993, with Justice Ruth Bader Ginsburg replacing White upon his retirement.

25 years before being appointed to the Supreme Court, Justice White finished 2nd in the Heisman Trophy voting. He was an outstanding running back for the University of Colorado.  He’s the only US Supreme Court justice who also received votes in the Heisman race.

Justice White’s football skills resulted in a famous nickname.

What’s the nickname?

 

 

 

 

 

 

Don’t Post That

There was a time in my life when the MTV Video Music Awards were must see tv.  I refer to that era as “law school.”

In my first year of law school, Hammer’s U Can’t Touch This won the VMAs for Best Rap Video & Best Dance Video.  I loved that song.  I wore out my apartment’s carpet dancing to it.

Anyhow, the song came to mind yesterday upon reading the ABA Journal’s story about a lawyer who called a client an “idiot and terrible criminal” in a Facebook post.

Why did the story remind me of the song?

Because last week I announced the theorem Keep Quiet & Lawyer OnToday, I’m announcing its corollary:  Don’t Post That.  It’s pronounced as if you’re singing along with Hammer.

Don’t let the pop culture reference gloss over your eyes.  This is a serious post. The story that prompts it raises concerns about an issuet that troubles me: my perception that we’ve become too willing to share too much.

Here’s the backdrop:

Aaccording to an article in the Des Moines Register, the Associated Press obtained a screenshot of an attorney’s Facebook post. In it, the attorney recounted meeting with a client to prepare for trial on federal gun & drug charges.  The client expressed concern that the “blue-collar jurors” would not connect with the attorney.

Per the AP story, the attorney turned to social media, posting that he was “flabbergasted” that the client would even suggest such a thing.  The post went on to state that the client was an ” ‘(expletive) idiot and a terrible criminal . . . who needed to shut his mouth because he was the dumbest person in the conversation by 100 times.’ ”  The attorney’s post observed ” ‘you wonder why need jails, huh?’ ”

The post speaks for itself and probably wouldn’t require more than 3 seconds at a CLE:  Don’t Post That.  It’s the attorney’s response that I find noteworthy.

The AP interviewed the attorney.  He told the AP that “he shared the post only with his Facebook friends.”

In Vermont, Rule 1.6 addresses client confidences.  The rule sets out the general prohibition against disclosing information relating to the representation of a client, then lists some exceptions.

“You may tell your friends” is not one of the exceptions.  In fact, it’s kind of the point of the rule.

Again, this story presents a stark example and I think most lawyers recognize that there’s no “friends & family” exception to the duty to maintain confidences. But as I noted last week, I think we sometimes get a bit lax in how much we share about our cases and clients.  Even a little is too much.

Finally, the fact that the attorney’s disclosure was made on social media is almost a red herring.  To me, this is not “See! I told you that social media is bad!”  That is, my guess is that lawyers who improperly disclose client confidences on social media would likely do by other means as well.  If you’re willing to post confidences to social media, you’re probably also willing to drop them in casual conversation over dinner.

Don’t.  Remember our postulates:

  • Theorem:  Keep Quiet & Lawyer On.
  • Corollary:  Don’t Post That.

Now, I look forward to spending the weekend revising Hammer’s lyrics to create a parody version entitled Don’t Post That.  Maybe I’ll sing it at my next CLE.

And, if I’m feeling nostalgic, maybe I’ll dig out the parachute pants.

Image result for images of mc hammer can't touch this

 

 

 

 

Monday Morning Answers – #136

Welcome to Monday!

By the way, in my opinion, the foliage is sneaky good late in the season.

Friday’s questions are here.  The answers follow today’s honor roll.

Honor Roll

Answers

Question 1

There’s a type of representation that most lawyers believe is mandated by the Rules of Professional Conduct.  It isn’t.

What “Z” word is no longer part of the rules?

Zealous.  In 1999, it was replaced with “competent.”  See, Rule 1.1.

Question 2

There’s a rule that prohibits lawyers from advising or assisting a client to violate the law.  In Vermont, the rule causes concern among lawyers who provide advice related to a particular product.  What’s the product?

Marijuana.  However, see Comment 14 to Rule 1.2.

Question 3

Fill in the blank.  It’s 2 words.

Lawyer called me with an inquiry. I listed, then responded “you can’t state a _________________  __________ as to the justness of the cause, credibility of a witness, culpability of a civil litigant, or guilt or innocence of an accused.”

Personal Opinion.  Rule 3.4(e)

Question 4

Which is associated with a different rule than the others?

  • A.   Single source
  • B.   Overdraft notification
  • C.   ACH transfers
  • D.   Lateral transfers

Lateral transfers are associated with the conflict rules.  The others are associated with trust accounting.

Question 5

The rules prohibit affirmative misstatements of material fact.

70 years ago tomorrow, at least one US newspaper (in)famously ran a headline that, in gigantic type, contained the same affirmative misstatement of a material fact.  The misstatement referred to a lawyer who’d first made a name for himself by prosecuting mafia figures, including Charles “Lucky” Luciano.

Believe it or not, this ties to the Red Sox.  The lawyer died in 1971. One of the very last things he did before dying was play a round of golf with Red Sox legend Carl Yastrzemski.

Name the lawyer.

Thomas Dewey.  And the famous headline is here:

See the source image

Five for Friday #136

Welcome to Friday!

I’ve got nothing.  136 doesn’t trigger a single memory to share in today’s opening.  Still, the writing’s on the wall.

Perhaps I’ve got nothing because I’m exhausted. Why am I exhausted?  Thank you very much for asking!

I’m not sure.  I moved last weekend and have been scattered ever since.  But I doubt that’s it.  No, it’s probably because in the midst of the move I stayed up very late for 3 consecutive nights, including one night that I was up until 3:45 AM.

Now, lest you accuse me of actively using the truth to mislead, I best confess: I wasn’t up late to pack, clean, or do other things associated with moving.

I was up late watching the Boston Red Sox win the World Series!

Alas, as happy & excited as it made me, I’m left to wonder if a chapter of my life has ended.  It’s a chapter I’ve referenced often in these pages.

My history with the Red Sox is deep & complicated.  Key threads in the fabric of that history?  My dad & my superstitions.  For example, my earliest sports memory is of my dad waking me for the final out of the Red Sox playoff win in 1975.  Then, of course, he and I combined to jinx Boston in 1986, inadvertently causing Bill Buckner’s outrageously incompetent error.

Anyhow, my dad was in town last week. We watched the first two games of the World Series. As we didn’t live in the same states as each other in 1986, 2004, 2007, or 2013, it was the first time we’d seen the Sox in the Series together since 1975.

This year, Boston won the first 2 games of the World Series.  The next day, my dad drove back to his house in North Carolina.  The day after he got home, Game 3 began.

It began at 8PM our time and ended nigh 3:30 AM, with the Dodgers pulling out a miraculous win in the 18th inning.  By all rights, Boston should have won the game in the 13th inning. I’m not exaggerating.

With 2 outs in the bottom of the 13th and the Sox ahead by 1, an LA player hit a ground ball to Ian Kinsler, Boston’s 2nd baseman.  The only thing standing between the Red Sox and victory was Kinsler doing what any competent 2nd baseman would do: remain standing.  Instead, he fell flat on his face.  As he did, he threw the ball wildly to first, allowing the tying run to score.  The Dodgers went on to win 5 innings later.

The error was so outlandishly incompetent that I was convinced it was a sign that Boston would go on to lose the series.  And, it was so reminiscent of Buckner’s ’86 gaffe, one caused by my dad and me, that I was equally convinced it happened only because my dad had driven back to North Carolina instead of watching the end of the series where he had the beginning: my couch.

Thankfully, Boston recovered and won the next two games to win the title.  We didn’t jinx this one!!

Which made me wonder?  Do jinxes not exist?  Should I finally grow up and stop believing in superstitions?

Of course not!!

In fact, the only reason the Sox recovered from Kinsler’s gaffe is because of the power of the Neil Diamond lock screen!  That’s right, by doubling down on superstition earlier in the playoffs, I’d provided us with an antidote to my father’s jinxous decision to head back south!  Thank you Suz!

The Red Sox reign again.  And, for me, so does Stevie Wonder.

And that, my friends, is my thought on 136. Thanks for bearing with me . . . and go Sox!

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

There’s a type of representation that most lawyers believe is mandated by the Rules of Professional Conduct.  It isn’t.

What “Z” word is no longer part of the rules?

Question 2

There’s a rule that prohibits lawyers from advising or assisting a client to violate the law.  In Vermont, the rule causes concern among lawyers who provide advice related to a particular product.  What’s the product?

Question 3

Fill in the blank.  It’s 2 words.

Lawyer called me with an inquiry. I listed, then responded “you can’t state a _________________  __________ as to the justness of the cause, credibility of a witness, culpability of a civil litigant, or guilt or innocence of an accused.”

Question 4

Which is associated with a different rule than the others?

  • A.   Single source
  • B.   Overdraft notification
  • C.   ACH transfers
  • D.   Lateral transfers

Question 5

The rules prohibit affirmative misstatements of material fact.

70 years ago tomorrow, many US newspapers (in)famously ran headlines that, in gigantic type, contained the same affirmative misstatement of a material fact.  The misstatement referred to a lawyer who’d first made a name for himself by prosecuting mafia figures, including Charles “Lucky” Luciano.

Believe it or not, this ties to the Red Sox.  The lawyer died in 1971. One of the very last things he did before dying was play a round of golf with Red Sox legend Carl Yastrzemski.

Name the lawyer.

 

the-quiz

 

 

Monday Morning Answers #135

Welcome to Monday!

Friday’s questions are here.  The answers follow today’s honor roll.

Honor Roll

 

Answers

Question 1

Fill in the blanks.  The same phrase goes in each blank.

When providing pro bono legal services, a substantial majority of the 50 hours should be provided to persons of limited means or certain organizations designed to serve persons of limited means.

That’s the phrase in Rule 6.1  For a definition, see Comment [3].

Question 2

This is a “what am I” question:

  • In Bar Counsel Universe, I’m often referred to as “unbundled legal services;”
  • I am a way to help provide access to legal services for those who might not be able to afford a lawyer.
  • I am specifically authorized by Rules for Family Proceedings and the Rules of Civil Procedure
  • I am specifically authorized by the Vermont Rules of Professional Conduct
  • Under the Rules of Professional Conduct, I am allowed only if (a) I am reasonable under the circumstances, and (b) the client gives informed consent.

What am I?

I ama limited representation.  See, Rule 1.2(c).

Question 3

Lawyer called me with an inquiry involving Client and  Other. I listened.  Then, I said:

“it’s ok as long as:

  1. Client gives informed consent;
  2. there’s no interference with your professional judgment or your relationship with Client; and,
  3. you don’t share any information about the representation with Other absent Client’s consent.”

What is Other’s involvement with this situation?

Other is paying Lawyer.  See, Rule 1.8(f).

Question 4

Later today, I’m speaking to the New Hampshire Association of Criminal Defense Lawyers.

For a criminal defense lawyer, which rule should spring to mind if a plea deal is conditioned upon the lawyer’s client waiving claims of ineffective assistance of counsel?  The rule on:

  • A.   Candor to the Tribunal
  • B.    Meritorious Claims & Contentions
  • C.    Client Confidences
  • D.   Conflicts of Interest

Several advisory opinions have reached the same conclusion: the criminal defense lawyer’s personal interests conflict with the client’s and, in addition, implicate the rule that prohibits a lawyer from asking a client to agree to limit the lawyer’s liability unless the client is represented by counsel.  See, Rules 1.7(a)and 1.8(h). For more, see Pennsylvania Bar Association Formal Opinion 2014-100, provided by Thomas Wilkinson, a regular member of the honor roll.

Question 5

Speaking of Vermont & New Hampshire . . .

In 2012, Tommy Lee Jones was nominated for the Academy Award for Best Supporting Actor. The nomination was for his role in Lincoln.  He played a Pennsylvania lawyer who was elected to Congress as a “Radical Republican,” chaired the Ways & Means Committee during the Civil War, and whose fierce opposition to slavery was instrumental in the passage of the 13th and 14th Amendments.

My favorite quote attributed to him? As a trial lawyer, and in response to a judge who warned that he was manifesting contempt: “Sir, I am doing my best to conceal it.”

Oh, by the way, the Pennsylvania lawyer was born and raised in Vermont, then attended college in New Hampshire.

Thaddeus Stevens.

Five for Friday #135

Welcome to Friday!

And what a Friday it is!! Go Sox!  I’d say the lock screen is working just fine.

As long-time readers know, when it comes to sports, I’m disturbingly superstitious. I truly believe that quirks like the lock screen will help Boston to win the World Series, perhaps even more than anything the players do on the field.

As I thought about the objective foolishness of the superstitions that I associate with “helping” my favorite teams, my mind wandered, scrolling through various notions of “helping.”

Then . . .  it hit me, and my mind’s equivalent of a cursor stopped dead in its tracks on this realization:  when it comes to some of the most critical help that needs to be provided, Vermont’s lawyers are the equivalent of a team that has won the World Series many times over.

I’m talking about pro bono.

Yesterday was the Vermont Bar Association’s Pro Bono Conference.  I was fortunate enough to speak during the plenary session.  As I did, I looked out over an audience of lawyers of all ages, firm sizes and areas of the state.  Most were there to learn how to help.  Others, the panelists, were there to teach how to help.

I was humbled & full of pride to be in the presence of so many lawyers so willing to give of themselves.

I was as proud to realize how far we’ve come on another topic: lawyer wellness.

The conference’s theme was serving vulnerable Vermonters. I opened my talk by reminding lawyers that, as a profession, we are a vulnerable population.  Then, at lunch, United States Bankruptcy Judge Colleen Brown tied pro bono service to wellness.

Judge Brown stated argued that helping others lends itself to senses of purpose and satisfaction that can’t help but increase wellness.  Quoting Winston Churchill, Judge Brown urged lawyers to remember that:

  • “We make a living in what we get.  But we make a life in what we give.”

I agree with Judge Brown.  In my presentation, I used this quote from Justice Sandra Day O’Connor:

  • “public service marks the difference between a business and a profession. While a business can afford to focus solely on profits, a profession cannot. It must devote itself first to the community it is responsible to serve.  I can imagine no greater duty than fulfilling this obligation. And I can imagine no greater pleasure.”

Finally, after the day’s seminars ended, Vermont’s newest attorneys took the oath of admission in a ceremony in the well of the House chamber.  In remarks delivered after administering the oath, Justice Harold Eaton urged lawyers to use their talents, skills, and position to help to provide & ensure access to justice.  In addition, he stressed the critical need for lawyers to take care of their own physical and mental well-being.

Two weeks ago, I blogged about choosing to help.  One way to help: pro bono work.  When it comes to pro bono, there never has been and never will be a better time to help than now.

Indeed, next week is the ABA’s 10th Annual national celebration of pro bono.  The focus is disaster relief.  In a message marking the occasion, ABA President Bob Carlson urges lawyers to help with disaster resiliency efforts. (Many states relax their rules on unauthorized practice to allow nonresident lawyers to provide assistance in response to natural disasters.)

Closer to home, if you want to help but don’t know how, contact Mary Ashcroft.  Mary is the VBA’s Legal Access Coordinator and can direct you to pro bono opportunities, as well as to low bono opportunities.

As I said, Vermont’s lawyers are champions when it comes to helping. And Mary Ashcroft is our MVP.

But, in sports, whenever any team wins a championship, there’s always the next season.  Similarly, as much as Vermont has done for those who need but cannot afford legal services, there’s always going to be more to do.

All in all, yesterday reminded me that law is about helping, pro bono is about helping the most vulnerable among us, and, when it comes to lawyer wellness, we need to help ourselves to ensure that we are healthy enough to help others.

Choose to help.

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

Fill in the blanks.  The same phrase goes in each blank.

When providing pro bono legal services, a substantial majority of the 50 hours should be provided to persons of _____________ or certain organizations designed to serve persons of _________________.

Question 2

This is a “what am I” question:

  • In Bar Counsel Universe, I’m often referred to as “unbundled legal services;”
  • I am a way to help provide access to legal services for those who might not be able to afford a lawyer.
  • I am specifically authorized by Rules for Family Proceedings and the Rules of Civil Procedure
  • I am specifically authorized by the Vermont Rules of Professional Conduct
  • Under the Rules of Professional Conduct, I am allowed only if (a) I am reasonable under the circumstances, and (b) the client gives informed consent.

What am I?

Question 3

Lawyer called me with an inquiry involving Client and  Other. I listened.  Then, I said:

“it’s ok as long as:

  1. Client gives informed consent;
  2. there’s no interference with your professional judgment or your relationship with Client; and,
  3. you don’t share any information about the representation with Other absent Client’s consent.”

What is Other’s involvement with this situation?

Question 4

Later today, I’m speaking to the New Hampshire Association of Criminal Defense Lawyers.

For a criminal defense lawyer, which rule should spring to mind if a plea deal is conditioned upon the lawyer’s client waiving claims of ineffective assistance of counsel?  The rule on:

  • A.   Candor to the Tribunal
  • B.    Meritorious Claims & Contentions
  • C.    Client Confidences
  • D.   Conflicts of Interest

Question 5

Speaking of Vermont & New Hampshire . . .

In 2012, Tommy Lee Jones was nominated for the Academy Award for Best Supporting Actor. The nomination was for his role in Lincoln.  He played a Pennsylvania lawyer who was elected to Congress as a “Radical Republican,” chaired the Ways & Means Committee during the Civil War, and whose fierce opposition to slavery was instrumental in the passage of the 13th and 14th Amendments.

My favorite quote attributed to him? As a trial lawyer, and in response to a judge who warned that he was manifesting contempt: “Sir, I am doing my best to conceal it.”

Oh, by the way, the Pennsylvania lawyer was born and raised in Vermont, then attended college in New Hampshire.

See the source image

 

 

 

Don’t be an “Empty Head”

When I was a kid, my head was so big that baseball hats and football helmets wouldn’t fit.  So, one of my best friend’s brothers always called me “Mr. Potato Head.”

I didn’t love the name.

See the source image

But maybe it’s better than having a federal court reprimand me for “errors made with an empty head.”

As reported by Bloomberg’s Big Law Business, the Court of Appeals for the 7th Circuit recently did exactly that to an Illinois lawyer. The order is here.

The lawyer’s troubles began when the appendix to a brief she filed included material that should have been redacted.  Opposing counsel notified the court.  The court ordered the lawyer to file a redacted appendix.

She did.  Along with a brief that included “substantial changes . . . altering both propositions of fact and law.”

Opposing counsel asked for an extension of time to reply to the new propositions.  The court granted the extension, but ordered the lawyer to “file a new brief, identical to the original, making only the changes required to redact information in the appendix.”

Seems clear enough. So, lawyer filed a third brief.

As the appellate court noted, “yet again, changes had been made.”  The new filing “did not match either” of the first two.

The court ordered the lawyer to file a new brief that matched the original and to show cause why she should not be disciplined.

Lawyer argued that the original order to redact the appendix implied that she could change the brief that it accompanied.   Per the court, “we accept her assertion that she believed that she could do so, but errors made with an empty head are hard to excuse.”

Ouch.

The court added that “making an error once is bad; making it twice in a row . . . is unfathomable.”

But for the fact that the court reprimanded the lawyer instead of imposing a more serious sanction, this might have qualified for Was That Wrong?

Don’t be an empty head.

 

 

Court Adopts Comment on Tech Competence

The first rule in the Vermont Rules of Professional Conduct requires lawyers to provide clients with competent representation.  I’ve long argued that Rule 1.1’s duty of competence includes tech competence.

Last week, the Vermont supreme Court promulgated amendments to Rule 1.1.  The amendments add three new comments, including one that makes it clear that, in fact, the duty of competence includes tech competence.  As amended, Comment [8] now reads:

Maintaining Competence

[8] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technologygy, engage in continuing study and education and comply with all continuing legal education requirements to which a lawyer is subject.

As reported by Robert Ambrogi’s LawSitesBlog, Vermont becomes the 32nd state to adopt the duty of tech competence.

Take a look at the picture that Bob uses on his blog:

Image result for lawyer technology competence

No more.

Don’t confuse the meaning of the new comment. It does not require lawyers to know how to use every new gizmo, gadget, or app.  It’s far more practical than that.

For instance, do you understand the risks and benefits of using certain technologies to transmit confidential communications? Or the risks and benefits of mobile payment services? Have you thought about disabling autocomplete? Do you advise clients against being too social?

Also, don’t sleep on the other new comments. As legal outsourcing becomes more prevalent, the new comments provide helpful guidance.

The new comments take effect on December 10.

Related Posts