Happy Saturday!
This will be long. If you want to skip to the quiz, I won’t be offended. Given the medium, nor will I know.
This post replaces yesterday’s, which was posted in haste and, upon further review, wasn’t adequate.
As some of you know, I recently received the American Inns of Court (AIC) Professionalism Award for the Second Circuit. The award was presented at a ceremony in New York City last week. Then, the various circuit recipients were part of the AIC’s Celebration of Excellence that took place last Saturday at the United States Supreme Court. Finally, the Vermont Supreme Court recognized the award at an event in Montpelier on Thursday.
I spoke in both New York and Montpelier. I wish I’d done better. This morning, my thoughts of the past few weeks finally coalesced. Given access to a flux capacitor, I’d have said something like this instead.
. . .
I struggled to make sense of being selected to receive the award. This led to an inability to come up with any remarks. So, perhaps reminded by the news of the lawyer who was sanctioned for plagiarizing opposing counsel’s brief, I fired up my trusty Google machine and searched for “acceptance speeches.”
I found one that sparked a thought.
The Time100 Impact Awards honor “global leaders who have gone above and beyond to move their industries – and the world – forward.” Pardis Sabeti was one of this year’s recipients. Dr. Sabeti opened her acceptance speech by stating:
- “An impact can only exist if someone has the opportunity to make one.”
The statement made me realize that the award I received doesn’t reflect me. It reflects the opportunities that others have created for me.
Most of the opportunities I’ve received have come by virtue of my parents. This post would take a day to read if it detailed even a fraction what my mom and dad have done for me. From circumstances that might have deterred others, my parents succeeded far beyond what their worlds expected of them, overcoming odds to put me in a position where the odds were in my favor. Without their sacrifices and love, I’d never have ended up a lawyer, not to mention a lawyer accepting an award at the United States Court of Appeals.
Another of the 2022 Time100 Impact Awards went to Alia Bhatt. Accepting the award, Bhatt said:
- “I have no idea how I got here or what I’ve done to deserve this. But, what I do know is: If it falls to me in any way to lead by example, be a role model or make any kind of impact, I want to do it in as human and as flawed a way as possible.”
The words resonated with me. I have no idea what I’ve done to deserve the recognition that I received. But I do know that whatever I’ve done, Vermont’s legal profession has afforded me tremendous opportunities.
- You gave a lawyer with little experience the opportunity to serve as disciplinary counsel.
- You gave a disciplinary prosecutor who was more interested in his side gig as a high school basketball coach become a member of the Vermont Bar Association’s Board of Managers.
- You’ve afforded me the opportunity to relate legal ethics & professional responsibility to my personal interests: pop culture, sports, running, and trivia.
- You let me record CLEs from my garage.
In short, you let me be me.
I am forever grateful for the opportunities provided by my parents and Vermont’s legal profession.
Still, I realized that I hadn’t exactly run with the opportunities. So, I went back to the Google machine. Again, it provided clarity.
Albert Schweitzer said many things, including:
- “A good example has twice the value of good advice.”
And,
- “Do something good. Someone might imitate it.”
Each helped me to realize that the most important opportunities I’ve received are the opportunities to imitate the examples of others.
Of course, my parents.
As a lawyer, countless mentors, including Peter Hall and Joan Wing.
I had the opportunity to work with Judge Hall in my first few years as disciplinary counsel, back when he often represented lawyers under disciplinary investigation. An exceedingly effective advocate for his clients, Judge Hall’s approach to practice will always remind me of Aesop’s Fable of The North Wind and The Sun. His example showed me that, even in the law, “Gentleness and kind persuasion win where force and bluster fail.”
To describe Joan is a “mentor” is an understatement that borders on misrepresentation by omission. Joan meant everything to my career in professional responsibility. She helped to start me here, propped me up in tough times that arose early, and then propelled me into my work with the Vermont Bar Association. She also showed me what it means to be a “lawyer’s lawyer.”
Finally, members of Vermont’s legal profession. As bar counsel there are times when I feel like I’m not a “real” lawyer. I don’t have to deal with clients or opposing counsel. I don’t have to sweat motion deadlines or responding to discovery requests. I don’t have to manage a trust account or worry about making payroll. I don’t have to do a lot of the things that lawyers have to do just to keep their heads above water.
You do. And I often find myself in awe of how you do it. The commitment, passion, and grace that you demonstrate in exceedingly difficult circumstances serve as examples much more valuable than advice and that I hope to imitate.
At the event in D.C., AIC presented one of its most prestigious awards to Martin Jenkins. Justice Jenkins sits on the California Supreme Court. At the ceremony, Justice Jenkins spoke of the importance of professionalism and civility. He noted the opportunity for lawyers to manifest to be beacons of professionalism and opportunity, with the collective result being the American legal profession shining from a hill for all to see. His remarks inspired me to use the occasion of the award to recommit myself to espousing professionalism and civility here in Vermont.
As we do, let us never give breath to the notion that professionalism is inconsistent with our professional obligations. It is not. It is entirely consistent with our duties, and always has been. A few examples:
- In 1836, Douglas Hoffman wrote his 50 Resolutions of Professional Deportment. Widely recognized as the first code of conduct to apply to the practice of law in America, Hoffman’s first resolution was “I will never permit professional zeal to carry me beyond the limits of sobriety and decorum, but bear in mind, with Sir Edward Coke, that ‘if a river swell beyond its banks, it loseth its own channel.’”
- In the Preamble to the Rules of Professional Conduct, Section 1 states that “A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” Section 9 indicates that the rules “include the lawyer’s obligation zealously to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.”
- Comment [1] to Rule 1.3 states that “[t]he lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved with courtesy and respect.”
- Comment [4] to Rule 3.5(d) states that “The advocate’s function is to present evidence and argument so that the cause may be decided according to law. Refraining from abusive or obstreperous conduct is a corollary of the advocate’s right to speak on behalf of litigants”
- Rule 4.4(a) prohibits conduct that has no substantial purpose other than to embarrass, harass, or burden a third person.
Civility and professionalism aren’t inconsistent with our obligations. They’re long baked into our professional responsibilities.
In addition, let’s remember that a lack of professionalism causes harm. Last year, I blogged about a California case in which a lawyer’s incivility factored into a decision to reduce a fee award. Here are some of the court’s statements:
- “Attorney skill is a traditional touchstone for deciding whether to adjust a [fee]. Civility is an aspect of skill. Excellent lawyers deserve higher fees, and excellent lawyers are civil.”
- “Civility is desirable in litigation, not only because it is ethically required for its own sake, but also because it is socially advantageous: it lowers the costs of dispute resolution. The American legal profession exists to help people resolve disputes cheaply, swiftly, fairly, and justly. Incivility between counsel is sand in the gears.”
- “Seasoning a disagreement with avoidable irritants can turn a minor conflict into a costly and protracted war. All sides lose, as does the justice system, which must supervise the hostilities.
- “By contrast, civility in litigation tends to be efficient by allowing disputants to focus on core disagreements and to minimize tangential distractions.
Most importantly, I am convinced a lack of professionalism harms our lawyers and their well-being. As we destigmatize help-seeking behavior, more and more lawyers are disclosing to me that they’re struggling with levels of stress and anxiety that verge on burnout. Many report that “other lawyers” are a major cause.
The lack of professionalism is not a victimless offense.
Further, as I recommit to promoting professionalism and civility, I want to respond to those who’ve suggested that my efforts squelch advocacy. They do no such thing, and I disagree with the premise of the suggestion.
In his final address to the nation, and referring to partisanship, President Washington said “[a] fire not to be quenched, it demands a uniform vigilance to prevent its bursting into a flame, lest, instead of warming, it should consume.” The same can be said for advocacy.
With clients and causes, work hard, with passion and vigor. Fight for rights and what is right. But don’t let the zeal rage out of control. Rather, keep in mind the last, but perhaps most important, of the VBA’s Guidelines of Professional Courtesy:
- “Effective advocacy does not require antagonistic or obnoxious behavior. Lawyers should adhere to the higher standard of conduct which judges, fellow attorneys, clients, and the public may rightfully expect.”
Finally, I’ve been told “well, Mike, I have to be combative. Otherwise, my client and the other side will think I’m weak.”
In his inaugural address, and referring to stakes far higher than are at play in most legal disputes, President Kennedy said:
- “Civility is not a sign of weakness, and sincerity is always subject to proof. Let us never negotiate out of fear, but let us never fear to negotiate. Let both sides explore what problems unite us instead of belaboring those problems which divide us.”
Professionalism is not weakness. Moreover, advocacy is made more effective by exploring common ground instead of belaboring division.
Having thought of the opportunities I’ve received, including the opportunity to follow the example set by others, I wonder if the occasion of this award might inspire those reading to recommit to professionalism and civility. The example we set might be more valuable than any advice we give, and there’s a chance that others might imitate us.
Indeed, the possibility that they do reminds me Linda Klein’s statement at the beginning of her tenure as the president of the American Bar Association. Quoting Mary Wortley Montagu, President Klein reminded us that “civility costs nothing, but buys everything.”
In closing, remember that no act of professionalism or civility is too small or without impact. One of my favorite stories is the Starfish story. It goes something like this:
Late in the day, a young child was on the beach. Countless starfish had washed ashore and the tide was out. One by one, the child returned starfish to the water. An older person noticed, and asked the child “what are you doing? It’s getting dark, a storm is coming, you need to get home, and there are so many starfish that you’re never going to make a difference.” The child picked up a starfish, put it in the water, turned to the older person and said:
“I made a difference to that one.”
Professionalism is a choice. Choosing it will be far more helpful in our quest to make a difference.
My thanks and gratitude to Judge Colleen Brown for nominating me, all who wrote in support of the nomination, those who spoke on my behalf at the ceremonies – Judge Beth Robinson, Chief Justice Paul Reiber, Judge Brown, Judge Geoff Crawford, Teri Corsones – and my family, friends, and colleagues who attended the events in New York and Montpelier.
Onto the quiz!
Rules
- None. Open book, open search engine, text-a-friend.
- Exception: Question 5. We try to play that one honest.
- Unless stated otherwise, the Vermont Rules of Professional Conduct apply
- Team entries welcome, creative team names even more welcome.
- E-mail answers to michael.kennedy@vermont.gov
- I’ll post the answers & Honor Roll on Monday
- Please consider sharing the quiz with friends & colleagues
- Share on social media. Hashtag it – #fiveforfriday
Question 1
This week, the ABA Standing Committee on Ethics and Professional Responsibility issued an advisory opinion in which it concluded that a lawyer who includes a client on an electronic communication to opposing counsel has:
- A. not impliedly consented to a “reply all.”
- B. impliedly consented to “reply all.”
Question 2
Which does the Vermont rule treat different from the others.
- A. a certified check issued by a federally insured bank.
- B. a check drawn on an IOLTA account of a Vermont licensed attorney that exceeds $25,000.
- C. a check issued by an insurance company that is licensed to do business in Vermont that exceeds $250,000.
- D. a personal check that exceeds $1,000.
Question 3
Lawyer received a letter from a former client who is not represented by counsel. In the letter, Former Client alleges that Lawyer committed malpractice. Later, Lawyer agreed to pay, and Former Client agrees to accept, $X to resolve the claim. By rule, before resolving the dispute, Lawyer must _______:
- A. Notify Disciplinary Counsel.
- B. Confirm the agreement in a writing that signed by the client.
- C. A & B.
- D. Advise Former Client in writing of the desirability of seeking independent legal counsel, and give Former Client a reasonable opportunity to do so.
Question 4
When representing a client, can a lawyer ask a person other than the client to refrain from voluntarily giving relevant information to another party?
- A. no.
- B. yes, if the person is a relative of the client, and the lawyer reasonably believes that the person’s interests will not be adversely affected by giving such information.
- C. yes, if the person is an employee or other agent of the client, and the lawyer reasonably believes that the person’s interests will not be adversely affected by giving such information.
- D. B and C.
Question 5
In July, the State Bar of California disbarred Tom Girardi. Earlier this week, the State Bar released a letter in which it revealed that, over the past 40 years, it had opened 205 investigations into Girardi and that “approximately 120 involved allegations related to trust account violations.” According to a news report:
- “The State Bar noted that the handling of Tom’s disbarment ‘brought to light serious failures in the State Bar’s attorney discipline system’ which ‘have contributed to a lack of confidence in the State Bar’s ability to carry out our core responsibility of protecting the public.’
In 1990s, Girardi helped a law clerk and residents of a California town who had complained about contaminated drinking water settle a case in which Pacific Gas & Electric agreed to pay $333 million.
Name the movie that the case inspired.
Bonus: in 2000, Girardi, then 60, married his third wife, then 28. Name the tv show in which both she starred and that he made several appearances.
Ethical Grounds 