2017’s Most Read: Conflicts & Lawyer Wellness

Like any self-respecting publication, Ethical Grounds will spend the final days of 2017 recapping the year’s most popular posts.  And, by “popular”, I mean “most read.”

Oddly, a single post was the most read every month from April thru November, and, by far, the most read of the year.  It was my post on Alternative Litigation Financing.  Now, I pay for the free version of WordPress, so I don’t have advanced analytics.  So, I’m only guessing when I say that it’s odd that the post was the most read for the year.  Still, here’s my guess.

I posted it in December 2016.  It went virtually unread until April, when its popularity skyrocketed.  Nothing about the topic of Alternative Litigation Financing changed appreciably between December and April.  However, in April 2017, the analytics reflect that hits on the post from searches for “ALF” went through the roof.   Something tells me that most who landed on the post did so not intending to reada about the legal ethics of Alternative Litigation Financing.

At the end of the November, I removed the “ALF” tag.  The result: almost nobody has read the post this month.  This tends to confirm my suspicion that the thousands of readers who ended up landing on the post didn’t really want to be there.

The upshot: while it was read 5 times more often than any other post this year, I’m not counting it in the Top 5.

Now, without further adieu, let’s get to the Top 5.

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Coming in at #5, my post Lateral Transfers: Is VT’s Rule too strict? Part 2.  The post addresses the fact that Rule 1.10 operates to disqualify an entire firm in certain situations in which a conflict follows a new hire from the new hire’s old firm.  Give it a read.  Earlier this month, the Professional Responsibility Board voted to recommend that the Vermont Supreme Court amend Rule 1.10  to allow nonconsensual screening even if a new hire participated personally & substantially in a matter in which the new firm represents a client who is adverse to a client represented by the new hire’s old firm.

Wellness

Next, the 4th most read post of the year was Lawyers Helping Lawyers – Keep it on the front burner.   The profession’s struggle with substance abuse & mental health issues is one that we must keep talking about.  As I’ve often written, it’s an access issues.  To ensure access to legal services, we must do our best to ensure access to a full complement of healthy & competent lawyers.

Since I posted the blog, the National Task Force On Lawyer Being issued a report entitled The Path To Lawyer Well-Being: Practical Recommendations for Positive Change. In response, the Vermont Supreme Court has approved the Chief Justice’s idea to create a commission to address lawyer well-being in Vermont.  You should expect to hear more about the commission in the near future. In short, it will consist of representatives from each of the stakeholder groups identified in the report from the National Task Force.  The stakeholders will analyze the recommendations aimed at them and report back to the full commission.

I’ll post #3 and #2 tomorrow.

Thanks for reading this year!

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Monday Morning Answers – My Cousin Vinny

You’ve spoken.  My Cousin Vinny is not only your favorite movie, it’s the most popular topic upon which I’ve ever blogged.

And if there’s one thing my readers know, it’s magic grits.

Friday’s questions are here.  Spoiler alert: the answers appear below today’s Honor Roll. However, before I get to the Honor Roll & answers, I’m trying something new that I hope turns into its own column.

For those of you who follow me on Twitter, you know that last night I posted this link to all my posts on the topic of Lawyers Helping Lawyers.  I posted at 5:30 PM in reaction to my realization that “whoa! it’s pitch dark and it’s only 5:30.”

Winter is long.  Darkness can be tough.  And, as the numbers show, we’re a profession that struggles to cope with stress, anxiety, substance abuse and mental health issues.  We must promote wellness and work-life balance, and we must encourage lawyers to make time for what matters.  In other words, let’s focus on ensuring that light shines in our personal & professional lives.

One way to let the light in is to do things that have nothing to do with the law. For example, yesterday, I ran a race with my mom.  She ran the 5K, I did the half marathon. One of us won her age division, I did not.  Here’s us post-race, pre-brunch.

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As we enter the months where the days arehort, it’s as important as ever to keep light in our lives.  To encourage that, send me your pictures of you doing something non-lawyerly.  It doesn’t have to be running a race.  It could skiing, playing with your kids or grandkids, reading, posing outside a show you’re about to attend.  If this catches on, each week, I’ll post the pictures, highlighting lawyers who, every now & then, go lawyerly-lite to keep the light on.

Honor Roll

Answers

Question 1

The rules include a special rule on conflicts for a certain type of lawyers.  What type?

Former & Current Government Officers & Employees.  Rule 1.11

Question 2

Pick the exact word or phrase that most accurately fills in the blank.

For the purposes of the confidentiality provisions of Rules 1.6 and 1.9(c), information that is a matter of public record is not necessarily __________:

  • A.   “Waived”
  • B.   “Privileged”
  • C.    “Confidential”
  • D.    “Generally known.”

Demonstrating my lack of competence, the original version of the quiz had two correct answers:  A – disclosable, and D – generally known.  Once I caught it, I edited the blog, but not before some people had answered and, anyway, it doesn’t edit the email that goes to people who have signed-up to follow the blog.

In the revised version, the answer is “generally known.”  See generally, Rule 1.9(c)(1).  I will blog on this issue later this week.

Question 3

Attorney called with an inquiry.  I listened, then responded “the rule doesn’t say ‘solely to obtain an advantage.’ It says ‘to obtain an advantage.’  We dropped ‘solely‘ back in 1999.”

What did Attorney call to discuss?

  • A.  Contacting an opposing party’s expert witness
  • B.  Contacting a prospective juror
  • C.  Threatening criminal charges in a civil matter.  See, Rule 4.5
  • D.  Interviewing an employee of a represented organization, without the permission of the organization’s lawyer

Question 4

Lawyer called me with an inquiry. I listened, then responded “Well, given the traditional limitation on permitting a non-lawyer to direct a lawyer’s judgment, if any the activities  will include the practice of law, you can’t do it.”

What did Lawyer call to discuss?

  • A.  Forming a partnership with a non-lawyer. See, Rule 5.4(b)
  • B.  Someone other than a client paying for Lawyer to represent that client
  • C.  Sharing a referral fee with an attorney in a different firm
  • D.  Implementing a cloud-based practice management system

Question 5

In the trial in My Cousin Vinny, one of the key moments is Vinny’s cross-examination of an eye-witness.  The witness testified that Vinny’s clients must have been in the Sac-O-Suds (the convenience store where the murder took place) for 5 minutes. On cross, Vinny asked:

“Well, I guess the laws of physics cease to exist on top of your stove. Were these ___________________? Did you buy them from the same guy who sold Jack his beanstalk beans?”

Fill in the blank. Hint: it’s 2 words

Magic Grits.   The scene is here and is worth re-watching.  It’s a fantastically competent cross-examination of an eye-witness. And it’s funny.  #lawyerlight 

Vinny

 

Lawyer Well-Being: A Call to Action

“The benefits of increased lawyer well-being are compelling and the costs of lawyer impairment are too great to ignore.  There has never been a better or more important time for all sectors of the profession to get serious about the substance use and mental health of ourselves and those around us.”

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I’ve blogged often on the alarming number of lawyers who struggle with substance abuse and mental health disorders.   My most recent post on the topic was one month ago today:  Lawyers Helping Lawyers: Keep it on the Front Burner.

Monday, the National Task Force On Lawyer Well-Being released its report The Path to Lawyer Well-Being: Practical Recommendations for Positive Change.  The report puts the issue of lawyer well-being on the front burner in each of our kitchens.

And it turns up the heat.

Here’s an excerpt from the Task Force’s introductory note:

  • “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.”

Let me re-emphasize:  “These findings are incompatible with a sustainable legal profession, and they raise troubling implications for many lawyers’ basic competence.

The note goes on:

  • “The legal profession is already struggling.  Our profession confronts a dwindling market share as the public turns to more accessible, affordable alternative legal service providers.  We are at a crossroads.  To maintain public confidence in the profession, to meet the need for innovation in how we deliver legal services, to increase access to justice, and to reduce the level of toxicity that has allowed mental health and substance use disorders to fester among our colleagues, we have to act now.  Change will require a wide-eyed and candid assessment of our members’ state of being, accompanied by a courageous commitment to re-envisioning what it means to live the life of a lawyer.”

Per the report, there are 3 reasons to improve attorney well-being:

  1. Good for business
  2. Good for clients
  3. The right thing to do

#3 should sound familiar to readers of this blog.

The report is 73 pages long and makes recommendations for judges, legal employers, law schools, bar associations, professional liability carriers, and lawyers assistance programs. Most relevant to this blog, the report makes recommendations for regulators. They begin on page 25 and, per the table of contents, can be summarized as follows:

  • Take Actions to Meaningfully Communicate That Lawyer Well-Being is a Priority
    • Adopt Regulatory Objectives That Prioritize Well-Being
    • Modify the Rules of Professional Responsibility to Endorse Well-Being as Part of a Lawyer’s Basic Duty of Competence
    • Expand Continuing Education Requirements to Include Well-Being Topics
    • Require Law Schools to Create Well-Being Educations for Students as an Accreditation Requirement
  • Adjust the Admissions Process to Support Law Student Well-Being
    • Reevaluate Bar Application Inquiries About Mental Health History
    • Adopt a Rule for Conditional Admission to Practice Law
    • Publish Data Reflecting Low Rate of Denied Admissions Due to Mental Health Disorders and Substance Use
  • Adjust Lawyer Regulations to Support Well-Being
    • Implement Proactive Management-Based Programs That Include Lawyer Well-Being Components
    • Adopt a Centralized Grievance Intake System to Promptly Identify Well-Being Concerns

I will do my part to review each recommendation for regulators with the appropriate body, whether the Professional Responsiblity Board, the Board of Bar Examiners, the Character & Fitness Committee, or the Continuing Legal Eduction Board.  But, as I mentioned, the report makes recommendations for many other groups.  Nearly each and every one of us fits into it at least one of those groups.

Turn up the heat on your front burner. The time to act is now.

If you or someone you know needs help, please contact the Vermont Lawyers Assistance Program.

Wellness

 

 

 

Do Nothing – It Might Help

The New York Times recently ran an op-ed by David Leonhardt: You’re Too Busy. You Need A Shultz Hour.

I agree.

In my posts on lawyers helping lawyers, as well as in a column I wrote for the VBA Journal, I alluded to the idea that lawyers can’t best help clients if they’re in need of help themselves.  In other words, access to legal services necessarily includes access to healthy & productive lawyers.

A Shutlz hour might provide all the help you need.  Over at InsideHook, here’s how Rueben Brody put it in his blog post Why Doing Nothing Will Be Your Most Productive Hour Of The Week:

  • “Stepping away as much as possible will make you happier and more productive. I recently gave up Facebook, and it’s given me at least an hour a day back. I’m not necessarily advocating you do that, but I do suggest you adopt the ‘Schultz Hour.'” {sic}.

And there’s the hook to legal ethics: happier, healthier, more productive. It strikes me that happier, healthier and more productive lawyers are better suited to provide competent and diligent representation to clients.

Sometimes the best thing to do is nothing.

Thank you to Ray Massucco for tipping me off to the New York Times piece.  Ray’s a loyal reader and frequent member of the #fiveforfriday Honor Roll.

Shultz

No, that’s not Ray.  That’s George Shultz.