It’s healthy for legal employers to value employees as people.

In 2018, the Vermont Commission on the Well-Being of the Legal Profession published its State Action Plan.  As I blogged here and here, I’m a big fan of the recommendations made by the Commission’s Legal Employers Committee.  Among other things, the Committee stated:

  • “Legal employers, meaning all entities that employ lawyers, paralegals and legal assistants, can play a pivotal role in promoting and maintaining lawyer well-being.”

I agree 100%.  Which is one of the reasons that I’ve incorporated wellness and referred to the Committee’s recommendations for legal employers at nearly every CLE I’ve presented so far this month.  I will continue to do so, that’s how much of a fan I am of the Committee’s work.

Today, however, I’m here to share a new tip for legal employers: the more you value your employees as people instead of as revenue producers, the better for their well-being.

Says who?

Experts who asked the employees.  That’s who.

In 2020, the California Law Association (CLA) and the District of Columbia Bar Association (DC Bar) agreed to participate in a research project to study issues related to lawyers and their behavioral health.  Last Friday, the CLA announced the project’s most recent findings.  The findings are based on “research [that] examined the relationship between what lawyers think their employers value most about them, and the mental and physical health of those lawyers.”

To me, the key findings are both unsurprising and eye-opening.

As summarized by the CLA, the study

  • “found that lawyers who felt most valued for their professional talent/skill or overall human worth had the best mental and physical health. Lawyers who felt most valued for their billable hours, productivity, and responsiveness were a distant second in mental and physical health. Lawyers who did not feel valued by their employers or did not receive enough feedback to know what their employers value about them fared the worst in terms of mental and physical health. In addition, lawyers who felt most valued for their professional talent/skill or overall human worth were much less likely to report they were considering leaving the profession.”

Imagine that! Valuing your employees for their “human” worth is better for their well-being than valuing them as revenue-producers or not showing them that you value them at all!

(The findings appear in a report by the researchers that was originally published in Behavioral Sciences.1)

The researchers surveyed thousands of members of the CLA and DC Bar. Based on their responses, lawyers were broken into three groups.  Those groups, and each group’s percentage of the total were:

  • Feel valued for their talent, skill, humanity:                               62%
  • Feel valued for their productivity & financial worth:                28%
  • Don’t feel valued or receive no feedback as to value:                10%

And here’s how the researchers ranked each group’s behavioral health and risk of attrition from the profession:

  • Feel valued for their talent, skill, humanity:                               Best health, lowest risk
  • Feel valued for their productivity & financial worth:                Worse health, higher risk
  • Don’t feel valued or receive no feedback as to value:                Worst health, highest risk

For more details, check out this infographic.

According to the CLA, the “key takeaways for legal employers” are:

  • “Employers who can make their lawyers feel more valued for their skill or humanity may be able to improve lawyer well-being, reduce healthcare costs, and mitigate unwanted turnover.
  • Providing clear and regular feedback may reduce stress and improve mental health.
  • By targeting and seeking to improve maladaptive behaviors in their workplace, employers may be able to improve the stress levels and mental health of their lawyers.”

In other words, when employers make people feel valued as people, the people are healthier and less likely to leave. And while I’m no expert, my guess is that healthier employees who aren’t looking to leave make for better business.

Here’s to making people feel like people.

For additional tips on how to create a healthy work environment, check out the ABA Well-Being Toolkit for Lawyers and Legal Employers or, my favorite, the ABA Well-Being Toolkit in a Nutshell.

Wellness

1 Last year, and as part 1 of the same project that’s the subject of today’s post, the researchers released Stress, Drink, Leave: an examination of gender-specific risk factors that their findings on the factors that drive lawyers from the practice. As Bloomberg Law noted upon its release, the first report concluded that women were at a higher risk of leaving the profession for behavioral health reasons than men.

Related Videos & Posts

 Wellbeing Week in Law Videos

 Posts

Five for Friday #253: Emotional Well-Being & The Kentucky Derby

Welcome to Friday and the 253rd #fiveforfriday legal ethics quiz!

It’s Well-Being Week in Law and today’s theme is “Emotional Well-Being: Feel Well.”  The organizers challenge us to learn to identify and manage our emotions to use them in a positive manner. In this video, and using a construct I used when coaching, I discuss emotional intelligence and:

  • accepting that we’ll experience negative emotions;
  • remembering W.I.N. when responding to those negative emotions;
  • winning our 3-feet of influence;
  • striving to be one of the 4 positives that others might need for their own well-being; and,
  • my Kentucky Derby picks.

The video references my blog post W.I.N. your 3-feet of influence. Finally, there’s still time to participate in Well-Being Week in Law.  For ideas, check out the participation guide. And, if interested, email me about your participation and I’ll include you in tomorrow’s blog post summarizing Vermont’s participation in the week’s well-being activities.

Have a great weekend!

Onto the quiz!

Kentucky Derby - Home | Facebook

Rules

  •  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

 

Question 1

 At CLEs and in response to ethics inquiries, I often state “it’s broader than the privilege.”  When I do, which of the 7 Cs of Legal Ethics am I referring to?  The duty of _____________.

 Question 2

 Which appears in a different rule than the others?

  • A.  explain a matter to the extent reasonably necessary for the client to make informed decisions about the representation.
  • B.  is likely to be a necessary witness.
  • C. unless the testimony relates to an uncontested issue or to the nature and value of legal services rendered in the case.
  • D.  unless disqualification of the lawyer would work substantial hardship on the client.

Question 3

 When using the following phrases at a CLE, what am I discussing?

  • prohibited when representing the defendant in a criminal case.
  • prohibited in exchange for securing a divorce;
  • prohibited if based on the amount of spousal maintenance, spousal support, or property settlement in lieu thereof.
  • allowed in post-judgment divorce actions that involve collecting past due spousal maintenance.

Question 4

 In which of the situations below are the rules governing conflicts of interest stricter than the others?  When a lawyer:

  • A.  in private practice represents clients at a pro bono clinic sponsored by a court or non-profit.
  • B.  moves from private practice to government work.
  • C.  moves from government work to private practice.
  • D. transfers from one private firm to another private firm.

 Question 5

 I’m not positive how widespread the news is, but some of you might have learned that a draft Supreme Court opinion was leaked this week.  Discussing it during our bread debrief, the First Brother and I agreed that we were less surprised by the leak than we were that it hadn’t happened before.  Well, as it turns out, there has been at least one other instance in which a well-known Supreme Court opinion was leaked to the press prior to being released. Indeed, it involved not one, but two leaks.

First, shortly after the arguments, the Washington Post ran a story about the Court’s internal deliberations on the case. The story included a leaked memo that one justice had written to the others.  Seven months later, and a few hours before the Court announced its opinion, Time Magazine published the opinion and the details of the vote. The incident resulted in the then Chief Justice imposing a so-called “20 second rule,” a rule that a law clerk caught communicating with the media would be fired within 20 seconds.

What was the name of the case in which the opinion was leaked?

Bonus: who was the Chief Justice who imposed the 20-second rule?

Here’s how Vermont’s legal professionals can plan for Well-Being Week in Law.

Well-Being Week in Law begins on May 2.  Driven by the efforts of the folks at the Institute for Well-Being in Law (IWIL), the week is designed to raise awareness by encouraging all in the profession to engage in activities that promote well-being.

There are many ways to get involved.

Each day has a different theme, with each theme a component of wellness.

WBW-Infograohic-11_2020-300x256

Last year, I hosted daily virtual meetups over the lunch hour.  There was no agenda.  Rather, we shared thoughts and tips related to the day’s theme.  My posts and videos on the project are here.  I intend to reprise the discussions this year.

There’s also A LOT more that folks can do. I encourage legal professionals, legal organizations, and individuals within the profession to get involved.  Here are some resources from IWIL’s website:

I’ve not yet finalized the activities I’ll promote in addition to the daily discussions.  I hope to do so next week.  Until then, if you, your firm, or your organization is interested in planning even a single activity, let me know if you need assistance or want me to stop by.  I will if I can. Also, if you’re interested in learning what others intend to do, IWIL is hosting a series of free planning sessions.  For more information on how to register for the planning sessions, go here.

Let’s continue to promote the well-being of Vermont’s legal profession and its members.

 Related Resources

Previous Wellness Wednesday Posts

Monday Morning Honors & Answers: #250

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

Honor Roll

  • Evan Barquist, Montroll Oettinger Barquist
  • Alberto Bernabe, Professor, University of Illinois at Chicago Law
  • Rick Fadden, Barry Callebaut, Blogger’s Stoolmate
  • Robert Grundstein
  • John T. Leddy, McNeil Leddy & Sheahan
  • Pam Loginsky, Deputy Prosecuting Attorney, Pierce County, Washington
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeffrey Messina, Messina Law
  • Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
  • Jim Remsen, Lord Microstrain, Blogger’s Stoolmate
  • Stephanie Romeo, Ryan Smith & Carbine
  • Jonathan Teller-Elsberg, Sheehey Furlong & Behm
  • Honorable John Valente, Vermont Superior Judge
  • Jason Warfield, J.D.
  • Washington Paper Pushers
    • Alfonso Villegas, Bridget Grace, Timothy Leuders-Dumont
  • Thomas Wilkinson, Jr., Cozen O’Connor
  • Zachary York, Paralegal, Sheehey Furlong & Behm

 ANSWERS

 Question 1

 Attorney called me with an inquiry.  My response included this statement: “Unless the deposit was an instrument that is listed among the exceptions, the general rule is that you can’t unless you have collected funds.”

Can’t what?

DISBURSE FUNDS FROM TRUST. Rule 1.15(f) & (g) – Safekeeping Property

 

Question 2

 I often refer to the 7 Cs of Legal Ethics: competence, communication, confidentiality, conflicts, candor, commingling, and civility. I use them to urge lawyers to consider concepts instead of trying to memorize the rules.

Similarly, Professor Bernabe, a regular member of the #fiveforfriday Honor Roll, suggests to the students in his professional responsibility class that they associate the principles encapsulated by the Rules of Professional Conduct with the grades that they don’t want to receive for the class.

As we highlighted at last week’s VBA meeting, a comment to one of the rules states that “perhaps no professional shortcoming is more widely resented than procrastination.”  The comment does not appear in one of the “C” rules.  Rather, it’s in a rule that is one of Professor Bernabe’s “bad grades.”

Which rule/duty/principle is associated with procrastination and can be remembered by thinking of “bad grades?”

DILIGENCE.  V.R.Pr.C. 1.3  For more, see Legal Ethics: it’s all about the bad grades.

Question 3

 I’m not a fan of threats to file disciplinary complaints against opposing counsel.  In fact, several jurisdictions take the position that it’s a rules violation to threaten another lawyer with a disciplinary complaint.

In most of those jurisdictions, which rule does the conduct violate? The rule that:

  • A.  Requires fairness to opposing counsel and parties.
  • B.  Requires respect for the rights of third persons.
  • C.  Prohibits conflicts of interest.
  • D.  Prohibits presenting, participating in presenting, or threatening to present criminal charges to obtain an advantage in a civil case.  See generally, V.R.Pr.C. 4.5.  Also, my blog post Disciplinary Complaints: File & Let File.

Question 4

 There’s a rule that prohibits a lawyer from counseling or assisting a client to engage in conduct that the lawyer knows is criminal or fraudulent.  Several years ago, Vermont added a comment to clarify that lawyers may assist and advise clients on issues related to the validity, scope, and meaning of the statutes, rules, and regulations that apply to a specific product/industry.  The comment was added for several reasons, including the fact that the ethics rule draws no distinction between state and federal law.

What product/industry?

Cannabis/Marijuana.  See, V.R.Pr.C. 1.2(d), Comment [14].

Question 5

In My Cousin Vinny, Vinny’s opening statement was brief.  In fact, at 10 words, it might be the shortest opening statement in the history of opening statements. Here’s what followed:

  • rosecution: Objection, your Honor. Counsel’s entire opening statement is argument.
  • Judge Haller: Objection sustained. The entire opening statement, with the exception of “ ________ ________” will be stricken from the record. The jury will please disregard Counselor’s entire opening statement. And you, Mr. Gambini, you will not use that kind of language in my court. Do you understand me?
  • Vinny: Yeah, yeah, yeah.

Of the already brief opening statement, what are the only two words that were not stricken from the record?

Bonus:  what had Vinny done during the prosecution’s opening statement that isn’t exactly consistent with the duties that lawyers owe to their clients

The words not stricken were “thank you.”  Prior to that, Vinny had fallen asleep during the prosecution’s opening statement.  The opening statement, ensuing objection, and Judge Haller’s ruling are here:

 

Five for Friday #249

Welcome to Friday and the 249th legal ethics quiz!

You know what?  249 isn’t 250.  It’s nowhere near as interesting, exciting, or motivating.  In fact, last night, while looking forward to next week’s milestone, I wondered if I’d even find the inspiration to post today.

I like to recognize occasions.  So much so that I tend to lose track of what happens leading up to them.  And by “lose track,” I mean that I often get so caught up in what I consider to be a notable event, occasion, or milestone, that I don’t enjoy the moments along the way.

That’s not good.  Too often, I miss too much.  Especially when, as can happen, the occasion doesn’t match the anticipation and leaves me regretting what I missed leading up to it.

So therein lies my challenge with the introduction to Quiz 249.  Again, 249 ain’t 250. But you know what?  I can’t celebrate #250 without posting #249 first.  So, last night, I resolved to find something about this moment.

I’m training for a marathon.  My current schedule calls for speed work on Thursdays and long runs on Saturdays. For each, I look forward to both the challenge and the sense of accomplishment upon completion.  To me, speedwork and long runs are events, occasions worth noting.

Friday runs? Not so much. Right now, Fridays are “recovery runs.”   Runs that aren’t fast or long.  They’re necessary, but boring.  There’s literally nothing remarkable about them.

But maybe that’s the wrong way to approach them. Maybe the challenge of training for the marathon is to find something special in each and every run.  After all, marathon day can go bad quickly.  So why measure success or appreciation for what happened by the race result instead of by the rewarding moments throughout the training process?

Here’s why.

Because I’m not much into mumbo jumbo about journeys, destinations, and smelling roses.

Still, today, I tried.

Yesterday was 8 miles with speed work mixed in.  It was one of my best workouts in a while.  Tomorrow, I hope to run more than 20 miles, the longest run of the training cycle so far.  Today?  The plan called for a whole lot of “not much.”  Not exactly an occasion.  Plus, between having to drop my car off at the garage this morning and today’s work schedule, there wasn’t much time for a run.  Especially one that didn’t interest me. So, I considered skipping it altogether.

But I didn’t.

Instead of dropping off my car and then hopping the bus to work, I brought it over early and ran home.  Why? To make an otherwise boring “short” run interesting: to turn it into an occasion.  So, nearing home, I focused on my GPS, weaving around the neighborhood, purposefully arriving in my driveway exactly at this moment:

249

Will today’s run make a difference on race day? Nope.  But it made a difference today.

Don’t get lost waiting for life’s 250s.  There are events, occasions, and opportunities in every moment, even the 249s.  Allow yourself to experience as many as you can.

Onto the quiz!

Rules

  •  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

 At a CLE later today, I’ll urge lawyers to set reasonable expectations with clients at the outset of the representation. I’ll also remind them that a lawyer’s duty is to provide candid legal advice, even if it’s advice that the client doesn’t want to receive.

During that portion of the seminar, which 2 of the 7 Cs of legal ethics will I mention?

Question 2

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

  • A.  is duty bound to report another attorney to disciplinary authorities.
  • B.  represents an organization.
  • C.  is being paid by someone other than the client.
  • D.  has a side business painting houses.

Question 3

 Prospective Client wants to retain Lawyer for representation in a divorce from Spouse.  Spouse’s business deals will be a significant issue in the divorce.  Lawyer’s paralegal used to work at the law office that is representing Spouse.  While there, Paralegal participated personally & substantially on legal matters related to Spouse’s business deals.

Under Vermont’s rules, which is most accurate?

  • A.  Lawyer may not represent Prospective Client. Paralegal has a conflict and it’s imputed to Lawyer.
  • B.  Lawyer may represent Prospective Client.  Prospective Client knows all about Spouse’s business deals.  Therefore, there’s no risk that Paralegal will share confidential information.
  •  C. Lawyer may represent Prospective Client, but only if  Spouse gives informed consent, confirmed in writing.
  • D.  Lawyer may represent Prospective Client.   Paralegal’s conflict is not imputed to Lawyer.  So that Paralegal does not share any confidential information about Spouse, Lawyer should screen Paralegal from any involvement in the divorce.

Question 4

 Attorney called me with an inquiry. I listened, then replied:

  • “Notice should come from you and your firm. A few years ago, the ABA issued an advisory ethics opinion that stated that it’s preferable to issue a joint notice.  The notice should go to all clients who deal (or who have dealt) directly with you.  What the clients do after that is up to them.”

Given my response, what will Attorney soon be doing?

Question 5

 I rarely take requests for Question 5.  However, I was recently sitting at McGillicudy’s when Rick, a non-lawyer friend and fellow stool sitter, mentioned that he’d tried a recent quiz and hadn’t gotten any right.  I replied that he shouldn’t, because he’s not a lawyer!  Then, my brother told him to try another quiz, but only to worry about Question 5.

Still, I was surprised.  We were sitting in our regular bar talking, however briefly, about legal ethics and professional responsibility?!?!  The word is spreading!  So, I asked Rick his favorite fictional lawyer and promised to dedicate Question 5 to that lawyer.  Rick replied something to the effect “it’s ironic that on an ethics quiz you’ll basically be telling me the answer ahead of time!”

Aha! I did no such thing! I asked his favorite fictional lawyer. I never said that lawyer would be the answer to Question 5!

How lawyerly of me to ruin the moment.

Anyhow, Rick’s favorite fictional lawyer is Seinfeld’s Jackie Chiles.  So, without further ado, here’s to Rick!

In an episode of Seinfeld, Kramer retains Jackie Chiles to sue a woman who Kramer alleges caused him to crash his car.  Here’s a snippet of one of their conversations:

Kramer: And she’s the heir to the ________ candy bar fortune.
Jackie Chiles: Could you repeat that?
Kramer: I said she’s the heir to the ________ candy bar fortune.
Jackie Chiles: _________? That’s one of our top-selling candy bars. It’s got chocolate, peanuts, nougat. It’s delicious, scrumptious, outstanding!

Later, at trial, things go awry after Jackie asks the woman to try something on and it doesn’t fit.

Question 5 is a fill-in-the-blank:  what candy bar?

Bonus:  what did Jackie ask the woman to try on?

Happy (belated) Birthday Papa!

Yesterday would’ve been my grandfather’s 106th birthday.  In 2018, his birthday fell on a Friday and I wrote about him in the introduction to that week’s legal ethics quiz. I try to remember to re-post the blog every February 1.  This year I forgot.  So, I’m posting it a day late.  It’s no big deal.  I guarantee that Papa knows me well enough to know that that if he was still with us, I’d be calling right about now to wish him a belated happy birthday.

Happy Birthday Papa!

Here’s the original post.

***************

Welcome to # 105!

Today I’m going to write about Eddie Bonneau.   Eddie was my grandfather, my mom’s dad.  I called him “Papa.”

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How am I tying this to #105?  Good question.

My grandfather isn’t 105.  His birthday was February 1 and, if still alive today, he’d have just turned 102. It only feels like 105 years since I’ve seen him.  So, there’s that.

Plus, using a prop to which I frequently resort in this column, the final digit in 105 is, well, 5.  And VT Route 5 runs through Bradford, which is where my grandfather lived for the final 50 (or so) years of his life.

Good enough for me.

I’m going to share two stories about Papa.  But first, some background.

Eddie Bonneau was born in Chicago.  Somehow, his family ended up in Lebanon, New Hampshire.  Papa dropped out of Lebanon High School after his sophomore year.  Like many of French-Canadian descent, he went to work in a woolen mill.

When he was 21, he married my grandmother.  She was 17 and had recently graduated from high school.  She was the breadwinner: Nanny made $7 per week, Papa $5.

Within 10 years, they’d had 4 kids and moved across the river & up the valley to Bradford, Vermont.  My grandfather opened a grocery store.

The grocery store lasted only until the early 1950’s.  My grandfather was deep in debt. His creditors took over.  Papa decided against bankruptcy, concluding that it was morally and ethically wrong.

Over the next few years, he and my grandmother had 2 more kids.  For the rest of his life, my grandfather worked here and there: some jobs as a door-to-door salesman, one as a butcher, another as a clerk at the 5 & Dime.

I remember him as being the smartest guy I knew. He didn’t talk much, but when he did, you listened. What he didn’t have in school smarts, he had 100 times over in common sense.  He was a voracious reader & keen follower of current events.

Papa loved cribbage.  And cards.  He dutifully played endless rounds of pinochle with my grandmother and various family & friends, even though my grandmother usually whupped him, no matter their respective partners.

Papa wasn’t active.  I don’t think I ever saw him in anything but dark pants and a button-up white shirt.  That’s how he dressed even when he & my grandmother took us to Lake Winnipesaukee, where he’d sit on a bench reading a newspaper while we swam.  Another time, he wore his clothes into a boat.  We were staying at a camp on the beach at Niquette Bay on Lake Champlain.  He helped me catch my first fish.  A little pumpkinseed.

Besides not being active, Papa smoked.  He was an equal opportunity smoker.  He smoked for breakfast, he smoked for lunch, and he smoked for dinner.  He smoked on the bench at the beach.  I vividly recall mornings at his breakfast table, where we’d pretend not to hear his daily coughing fits that he thought the wafer-thin bathroom walls muffled.

Emphysema eventually killed him in 1994.

Before it did, my brother and I have an enduring memory of visiting our grandparents for a family event, only to have Papa disappear. We went to find him.  He had wheeled his oxygen tank to the barn to sneak a cigarette.  By then we were in our late teens, maybe 20’s.  We didn’t feel compelled to make a mandatory report to our grandmother, mom, or aunts.

You see, one thing Papa loved, but lacked, was quiet.  My mom has 4 sisters and a brother. Unlike my grandfather, one might accurately describe my grandmother and her 6 children as the sharing type.  As in, they’ve always shared pretty much every thought that ever entered their heads.  So, if Papa wanted a smoke in the quiet of the barn, who were my brother and I to stop him?

Now, the stories.

First, like I said, my grandfather was super smart.  And he was proud.  Not vain, but proud. I visited my grandparents during the holiday break of my first year in law school. Once we sat down, he said, after a long drag, “so Mister, tell me a law.”

I had no ready answer. He wasn’t impressed.

Next, for special occasions, my grandmother would send me, my brother, and our cousins checks.  Sometimes $3, sometimes $5.  She’d include a card with a note to “buy yourself an ice cream!”  Once, in law school, I lost one of my $3 checks. I was too afraid to tell her, so I let the Irish side of me take over.  Meaning, I just ignored it, figuring that ignoring it would make the issue go away.

Epic fail.  Eventually, my mother called to ask why I hadn’t cashed Nanny’s check. I had to fess up.  Again, Papa wasn’t impressed with someone who cared so little about $3 as to lose a check.

A few months later, Nanny & Papa gave me $300 as gift for my graduation from law school.  For people like them, it was an astonishingly staggering amount.  Think about it: it’s 25 times as much as their combined weekly income as newlyweds. I cashed the check immediately.

About a month later, I was back in Vermont and went to visit my grandparents. First words out of Papa’s mouth: “guess you didn’t lose that one.”

I don’t how to end this post.  I’m not sure how it ties to 105, other than it doesn’t.  I just felt like writing about my grandfather.  I miss him.  He was a good man. He had nothing, but made sure that his kids had something, which, besides my parents, is one of the main reasons that I have anything.

Thanks for indulging me.

*******

Blogger’s Note:  This story was originally posted on February 1, 2018.

Logan Lucky and how to avoid neglecting client matters for 20 years.

I watched Logan Lucky last month.  I loved it but am not sure whether it’s a caper or a heist.  I was leaning towards “heist,” but then I found this review.  If a source such as The Atlantic considers it a caper, who am I to disagree?

Anyhow, over their careers, the Logan brothers have developed the “Top Ten Rules For Robbing Banks.”  Here’s a still from the movie:

Logan Lucky 10 rules

The 10th is relevant to today’s post.  If the picture is too small, #10 is “Hang Up And Know When To Walk Away.”

Keep that in mind as you read on.

When it comes to bizarre attorney discipline cases, I’ve investigated, prosecuted, and blogged about my fair share. This one is in a category of its own.  A category that I don’t know what to name or how to describe.

Last week, the Louisiana Supreme Court suspended a lawyer for a year and a day.  A tweet from Massachusetts Assistant Bar Counsel David Kluft alerted me to the opinion.[i]

The case involved two counts.  The first paragraph related to Count I might make you wonder if there’s a typo.

  • “In 1991, Joseph Duplessis, Sr. and his three brothers hired respondent to handle an employment discrimination lawsuit against their employer. According to Mr. Duplessis, their legal matter appeared to be progressing until Hurricane Katrina in 2005. Thereafter, respondent failed to return Mr. Duplessis’ telephone calls or otherwise keep him informed of the status of the case. When respondent did speak to Mr. Duplessis, she offered what he considered to be excuses as to why the case had not progressed. In 2011, respondent sent discovery requests to the defendant but received no response. She never confirmed that the defendant was served with the discovery requests and never filed a motion to compel the defendant to respond.”

There’s no typo.  The lawyer served the discovery requests twenty years after being retained. Alas, that didn’t get the matter back on track. Thus, in 2015, the client filed a disciplinary complaint against the lawyer. Formal disciplinary proceedings followed.

Count II is as strange.  It alleges that the lawyer neglected another client’s matter for 20 years. If I’m reading the opinion correctly, it appears as the second client’s timeline was:

  • 1994: hired lawyer
  • 1995: lawyer filed lawsuits on client’s behalf in state & federal court
  • 1995: federal case dismissed for lack of jurisdiction
  • 1997: lawyer served discovery requests in state court action
  • 1998: lawyer filed a motion to set the matter for trial
  • 2002: client filed a disciplinary complaint against lawyer
  • 2004: lawyer was sanctioned by Louisiana disciplinary authorities
  • 2004: client continued to retain lawyer
  • 2012: client filed another disciplinary complaint against lawyer
  • 2016: lawyer filed a motion to compel responses to discovery requests served in 2001, 2004, 2007, 2010, and 2013.  It was the first motion filed, by either party since lawyer’s 1998 motion to set the matter for trial.

Wow.

As I blogged in June, a lawyer has a duty to provide a client with candid legal advice. The duty includes giving the client legal advice that the client does not want to receive.  Or, as stated in Comment [1] to V.R.Pr.C. 2.1:

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

In the opinion suspending the lawyer, the Louisiana Supreme Court wrote:

  • “We do not minimize the significance of the delay in respondent’s resolution of the two legal matters at issue, which resulted in harm to her clients. Nevertheless, we recognize that respondent did not cause her clients to lose a right or remedy in their legal matters.”

In other words, it appears that neither of the lawyer’s clients had much of a case.  Among other factors, this mitigated against a longer suspension.

I don’t know how it’s possible that the lawyer’s clients’ cases languished for so long.  Therefore, I will not comment on the fact that they did.  Rather, the neglect aside, I’ll reemphasize June’s post on V.R.Pr.C. 2.1.

The duty to render candid legal advice includes informing a client of their prospects.  Might the client fire you upon receiving bad news?  Yes.  But at least you won’t end up starring in a caper that ends with your law license suspended.

Hang up and know when to walk away.

[i] Here’s to bald bar counsels!

Remembering Joan Loring Wing

Joan Loring Wing passed away 12 years ago yesterday. My tribute to Joan is here.

Nobody has done more for Vermont lawyers than Joan. I am one of the many who owe where I am to Joan’s mentoring along my way.

I’m sad that I forgot to post this yesterday. I had it in my head that December 9 was the day.  I was wrong.  I assume that the gust of wind that almost knocked me over in the middle of yesterday’s run was Joan reminding me.

Here’s to hoping that as she wondered if I was going to remember, Joan passed the time with a coke and some cheese puffs as she masterfully cajoled a settlement out of parties and lawyers that had come to the table miles apart.

Rest in laughter and peace my friend.

JLW

PS: this video on “don’t switch sides” and former client conflicts includes shout outs to JLW at both the beginning and the end.