Monday Morning Answers #213

Welcome to another week! Friday’s questions are here. Today’s answers follow the Honor Roll.

No, the Clemson Tigers did not win Saturday night.  To my Notre Dame friends, enjoy Round 1. I look forward December 19!

Honor Roll

  • Penny Benelli, Dakin & Benelli
  • Andrew DelaneyMartin Delaney & Ricci Law Group
  • Erin GilmoreRyan Smith & Carbine
  • Robert Grundstein, Esq.
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy, JB Kennedy Associates, Blogger’s Mom
  • John LeddyMcNeil Leddy & Sheahan
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Jack McCullough, Project Director, Mental Health Law Project
  • Jeffrey MessinaBergeron Paradis Fitzpatrick
  • Herb Ogden, Esq.
  • Jonathan Teller-Elsberg, Hershenson, Scott, Carter & McGee
  • Lucia White, CP, Nanci Smith Law
  • Thomas WilkinsonCozen O’Connor

Answers

Question 1

There’s only one thing that the Rules of Professional Conduct require a lawyer to keep for a definite period following the termination of a representation.  What is it?

  •  A.  a client’s confidences: 6 years.
  •  B.  a copy of the client’s file: 7 years.
  •  C.  a copy of the advertisement that led the client to the lawyer: 2 years.
  • D.  Records of any funds held in trust for the client: 6 years.  V.R.Pr.C. 1.15(a)(1).

Question 2

Which word or phrase is associated with a different rule than the others?

  • A.  knows or reasonably should know that the person misunderstands the lawyer’s role.
  • B.  shall correct the misunderstanding.
  • C.  without the consent of the person’s lawyer.
  • D.  not give any advice, other than the advice to seek counsel.

A, B, and D are associated with V.R.Pr.C. 4.3, the rule that sets out a lawyer’s duties when dealing with an unrepresented person.  Thus, C is correct. The phrase appears in V.R.Pr.C. 4.2, the rule that prohibits communication on the subect of the matter with a person that the lawyer knows to be represented in the matter, with the consent of the person’s lawyer or otherwise authorized by law or court order.

Question 3

This is true: there is a rule that prohibits a lawyer from disbursing against a deposit to the trust account until the deposit has cleared and become “collected funds.”

True or false? In Vermont, there are no exceptions to the rule.

False.  The exceptions appear in V.R.Pr.C. 1.15(h).

Question 4

Which is most accurate?  The Rules of Professional Conduct impose a duty to  _______:

  • A.  Encrypt email.
  • B.  Encrypt a client’s electronically stored information in transit.
  • C.  Encrypt a client’s electronically stored information at rest.
  • D.  Act competently to safeguard client information, including by taking reasonable precautions to prevent against the inadvertent disclosure of or unauthorized access to client information.  See, V.R.P.C. 1.1, Comments 16 & 17.  Also, this blog post: Is there a duty to encrypt email?

 Question 5

I botched it by not asking this last Friday.  Anyhow, on October 30, a famous actor turned 75.  For five seasons, the actor played one of my favorite ethically challenged lawyers: Arrested Development’s Barry Zuckerkorn.  Of course, Zuckerkorn is not to be confused with the acting coach that the same actor plays in Barry and for which he won the 2018 Emmy for Outstanding Supporting Actor.

Readers of an earlier vintage might know the actor better for his Emmy-winning performances on a 1970’s sitcom. Per his Wiki page, on that show, he played “a greaser who became the breakout character.”

Whose 75th birthday did I miss last Friday?

Henry Winkler

Fonz

Wisdom on Crowdfunding Legal Fees.

As we continue to struggle to increase access, I’m surprised that crowdfunding isn’t more often discussed as a tool to help people afford legal services. While no magic bean that will serve as a singular remedy – there isn’t one – the fact that the practice is so common in other aspects of life leaves me wondering why the legal profession doesn’t pay it closer attention.   

Maybe someday we will.

If that day arrives, here’s to hoping you’ve bookmarked this post.  It’s intended to share a bit of guidance on how ethically and competently to advise and represent clients who crowdsource legal fees.

Way back in 2016, I posted Crowdfunding: the more things change . . .  In it, I expressed my support for this advisory ethics opinion that the Philadelphia Bar Association’s Professional Guidance Committee had recently issued. Referring to our tendency to treat advances in technology as threats to our law licenses, I wrote:

“That’s why the Philly opinion is great.  It doesn’t treat ‘crowdfunding platforms’ as new creatures that require new rules.  Rather, it reminds lawyers that the rules that apply when using a crowdfunding platform are the same rules that apply to any other representation.  That is, if a lawyer & client use crowdfunding to raise money to cover the lawyer’s fee, the lawyer must:

Remember: advances in technology do not change the duties lawyers owe to client, courts, and third persons.”

(Aside: the theme should sound familiar. I recently said pretty much the same in Social Media & Legal Ethics: Keep It Real).

Next, in 2018, the D.C. Bar issued Ethics Opinion 375: Ethical Considerations of Crowdfunding. Professor Bernabe blogged about it here, while The Law For Lawyers Today out-headlined us both with Fees a Crowd? DC Bar Issues Opinion on Ethics of Crowdfunding. The opinion itself is tough to find, but, for now, appears at page 419 of this PDF.

The Philadelphia and DC opinions?  That’s about it.  Until now.

Lucian Pera is well-known in professional responsibility & legal ethics circles. A few years ago, I was fortunate enough to meet him when Vermont’s own Fritz Langrock introduced us at an ABA event.

Recently, the ABA’s The Thriving Lawyer ran Lucian’s piece Crowdfunding Ethically. I recommend it for any lawyer or legal professional considering (or already in) a representation in which the client will crowdfund legal fees.  Not only does Lucian address a lawyer’s ethical duties, but he also shares practical tips that, well-heeded, will increase your wisdom of crowdfunding.

 

Legal Ethics

Monday Morning Answers #212

Welcome to November.  It wasted no time announcing its presence.

Friday’s questions are here.  The answers follow today’s Honor Roll.  Many thanks to all who shared their thoughts in response to my Halloween Candy Power Rankings.

Honor Roll

Question 1

It is not uncommon for me to receive an inquiry in which a lawyer asks about the information that can be included in a particular type of motion.  For example: “Mike, I’m thinking of filing a motion __  _______________, but I don’t want to disclose any confidences.”

Typically, I reply with something like: “I think it’s best to cite to whichever paragraph of the rule applies. Then, if asked for more by the court, answer, but only by providing the information necessary to respond to the court’s specific question. The motion doesn’t give you license to start blabbing about the client.”

What type of motion is most often the subject of the inquiry outlined above?

  • A.  To disqualify opposing counsel.
  • B.  To have the client’s competency evaluated.
  • C.  To withdraw.  The applicable rule is V.R.Pr.C. 1.16
  • D.  To recuse the judge.

Question 2

The trust account rules require lawyers to reconcile trust accounts:

  •   A.  Timely, with “timely” being no less than monthly.  V.R.Pr.C. 1.15A(4).
  • B.  Every other month
  • C.  As often as required by generally accepted accounting principles.
  • D.  The rules are silent. But the Vermont Supreme Court has held that trust accounts must be reconciled no less than quarterly.

Question 3

Lawyer represented Client.  Once the representation ended, Client gave Lawyer a gift.  Which is most accurate?

  • A.  Lawyer must not accept the gift
  • B.  Lawyer may accept the gift, but only if Lawyer handled the matter pro bono
  • C.  Lawyer may accept the gift, especially if it’s a simple gift such as a holiday present or token of the client’s appreciation.  See, V.R.Pr.C. 1.8, Comment [6].
  • D.  Mike, objection.  The premise of this question is pure fantasy.

 Question 4

Which is in a different rule than the others?

  • A.  Same or substantially related matter.
  • B.  Materially adverse interests.
  • C.  Informed consent, confirmed in writing.
  • D.  Remonstrate with the client and, if necessary, take reasonable remedial measures.

A, B, & C appear in Rule 1.9(a)’s analysis of a former client client.  Answer D appears in Rule 3.3(a)(3) and states the duties a lawyer has upon learning that a client or a witness called the lawyer has offered evidence that is materially false.

 Question 5

At seminars and in blog posts, I often talk about the duty of competence insofar as it relates to the preservation and production of a client’s electronically stored information.

Earlier this week, a New York judge issued a ruling in Parlux v. Carter.  The judge concluded that the defendant, Shaun Carter, had improperly destroyed emails relevant to the case and, therefore, that if the case goes to trial, the jury will be instructed that it can draw an adverse inference from the fact that the emails are missing.

While sued under his legal name, Carter, a world-famous musician and mogul, is better known by his stage name.  I’ve previously mentioned him in this blog, noting that one of his most iconic songs has been described as “a hornbook on the 4th Amendment.”  To wit, the second verse’s lessons on traffic stops, vehicle searches, racial profiling, and probable cause.

Indeed, in the civil case, the missing emails have quickly risen to the top of the list of Carter’s problems.

Who is Carter better known as?

Jay-Z.   CMU reported the story here.

Jay Z

Five for Friday #212

I hesitate to share my votes. Doing so seems to put relationships at risk. And you, my readers, are a relationship I’d rather not risk.  Alas, if I don’t stand for something, I’ll fall for anything.

Don’t shame me for my choices. I like what I like. You might like something else.  That’s fine. We can still get along. 

So, without further ado, my 2020 Halloween Candy Power Rankings:

Note: movie theater candies were not eligible for consideration.  Otherwise, this post would’ve consisted of two words: Sno Caps.  Toughest omissions: 100 Grand and Butterfinger

I feel like my rankings don’t need explanation. Good taste is obvious. But I suppose every voter feels that way.  So, I’ll explain my choices.  Unlike real life, I’m here to advocate for my preferences, not to yell at you about why not to vote for others.  In reverse order:

  • 5.  Kit Kat. Is there anything better? Well, yes, the next four on this list. Still, I feel like Kit Kat is sneaky underrated. Especially given the fact that it played such a crucial role in an episode of The Office. The crunch of those layers? Perfection! Oh, and if you eat them without breaking off a piece of that Kit Kat bar? You should be disbarred from whatever job you have.  Tip: freeze before eating.
  • 4.  Junior Mints. A stunningly refreshing combination of mint and chocolate. If you think these are only a movie candy, I’ll fight you. The tiny Halloween box is a perfect first date: it satisfies you, but leaves you wanting more.  Oh, and having pointed out Kit Kat’s relevance to The Office, I’d be remiss not to remind you of Junior Mints’ appearance in Seinfeld.
  • 3.  Krackel. I feel like this will be controversial. I love Krackel. It’s a better version of Kit Kat.  Probably could be #1, but is it available in a regular size throughout the year?  In the fall, my mom buys those grab bags that include a variety of tiny Hershey’s, Mr. Good Bar, something else, and Krackel.  When she puts them out, I treat the Krackels like they’re the chocolate munchkins in a box of 25 mixed.  Literally, the best candy that I’ve never had but in its miniature Halloween version. 
  • 2.  Reese’s Peanut Butter Cups. In Hannaford’s the other day, I saw a 6 pack! For those of you who grew up more recently than I, back in the days of less excess than now, only 2 peanut butter cups came per package. Oh, the humanity!! Peanut Butter Cups are the second-best food combination ever created.* You will be summarily disbarred if I learn that you aren’t freezing your peanut butter cups.
  • 1.  *Peanut M&M’s. Have you ever been asked “if you could only have one food the rest of your life, what would it be?” I have. Recently. Such are the questions that arise in the Garage Bar. Last weekend, I answered “Peanut M&Ms.”   In Anna Karenina, published in 1878, Tolstoy wrote, “If you look for perfection, you’ll never be content.”  Leo, stop looking! It’s not your fault that Peanut M&M’s weren’t mass marketed until 1954! Collectively, have we garnered more contentment from, or witnessed anything more perfect than, Mars’ polyamorous marriage of a nut, a thin layer of chocolate, and a brightly colored and refreshingly crisp candy shell?

Nyet!

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 don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

 It is not uncommon for me to receive an inquiry in which a lawyer asks about the information that can be included in a particular type of motion.  For example: “Mike, I’m thinking of filing a motion __  _______________, but I don’t want to disclose any confidences.”

Typically, I reply with something like: “I think it’s best to cite to whichever paragraph of the rule applies. Then, if asked for more by the court, answer, but only by providing the information necessary to respond to the court’s specific question. The motion doesn’t give you license to start blabbing about the client.”

What type of motion is most often the subject of the inquiry outlined above?

  • A.  To disqualify opposing counsel.
  • B.  To have the client’s competency evaluated.
  • C.  To withdraw.
  • D.  To recuse the judge.

Question 2

The trust account rules require lawyers to reconcile trust accounts:

  •  A.  Timely, with “timely” being no less than monthly
  •  B.  Every other month
  •  C.  As often as required by generally accepted accounting principles.
  •  D.  The rules are silent. But the Vermont Supreme Court has held that trust accounts must be reconciled no less than quarterly.

Question 3

Lawyer represented Client.  Once the representation ended, Client gave Lawyer a gift.  Which is most accurate?

  • A.  Lawyer must not accept the gift
  • B.  Lawyer may accept the gift, but only if Lawyer handled the matter pro bono
  • C.  Lawyer may accept the gift, especially if it’s a simple gift such as a holiday present or token of the client’s appreciation.
  • D.  Mike, objection.  The premise of this question is pure fantasy.

Question 4

Which is in a different rule than the others?

  •  A.  Same or substantially related matter.
  •  B.  Materially adverse interests.
  •  C.  Informed consent, confirmed in writing.
  • D.  Remonstrate with the client and, if necessary, take reasonable remedial measures.

Question 5

 At seminars and in blog posts, I often talk about the duty of competence insofar as it relates to the preservation and production of a client’s electronically stored information.

Earlier this week, a New York judge issued a ruling in Parlux v. Carter.  The judge concluded that the defendant, Shaun Carter, had improperly destroyed emails relevant to the case and, therefore, that if the case goes to trial, the jury will be instructed that it can draw an adverse inference from the fact that the emails are missing.

While sued under his legal name, Carter, a world-famous musician and mogul, is better known by his stage name.  I’ve previously mentioned him in this blog, noting that one of his most iconic songs has been described as “a hornbook on the 4th Amendment.”  To wit, the second verse’s lessons on traffic stops, vehicle searches, racial profiling, and probable cause.

Indeed, in the civil case, the missing emails have quickly risen to the top of the list of Carter’s problems.

Who is Carter better known as?

M&Ms Candy - Peanut (Regular Size) - Lakeside Triple Feature Event

Remembering Joan

I’m not positive, but I think I’m doing a CLE for the Joan Loring Wing Inn of Court today.  As of this moment, however, there’s a non-zero possibility that I entered into my calendar a CLE that was proposed but not finalized.  With “non-zero” being “greater than 50%,” further evidence of my lack of competence.  I guess I’ll find out at noon.

Anyhow, I will never turn down a request to present to the Joan Loring Wing Inn of Court. No lawyer did more for me or my career than Joan. The fact that I’m far from the only lawyer who can say that is further testament to Joan.  I might not remember my schedule, but I will never forget Joan.

In Joan’s memory, and in honor of a day that I may or may not be presenting to the group that bears her name, I’m re-posting a blog that I published about her last year.  It’s here, and it’s pasted in below.

IMG_2640

********

Attorney Wellness is a big tent.  A lot fits underneath:

Lawyer assistance programs.  Helping colleagues in need.  Mentoring attorneys. The connection between wellness and civility.  Making time for what matters: family, friends, interests outside the law.

Of all that’s under the tent, nobody did them better than Joan Loring Wing.

Many of you knew Joan.  For those who did not, she was a titan of the Vermont legal community.  A figurative Giant.  All the good we’ve done on attorney wellness over the past few years?  It’s not as much us as it is that Joan lifted us up, put us on her shoulders, and showed us the way.

I knew Joan well.  She was on the Professional Conduct Board when I was hired as deputy disciplinary counsel in 1998.  To the extent that wellness includes having a job and being involved in the profession, Joan is why I’m well.

In 2000, it looked like my job would be cut.  Joan made sure it wasn’t.  I’m still here and, honestly, do not want to imagine how my career would’ve turned out if she hadn’t intervened.

In 2009, Liz Miller asked me to the run for a seat on the Vermont Bar Association’s Board of Managers.  Waffling, I turned to Joan for guidance.  As had her father and grandfather, Joan had served on the Board and become President.  She told me it’d be the best experience of my professional life.  Then, to make sure I didn’t chicken out, she showed up to the voting meeting and gave a speech nominating me. I remain convinced that many who voted for me did so only because Joan vouched for me.

Joan was right about the Board experience.  As with my day job, I don’t like to think how my career would’ve turned out had she not convinced me to run.

Tonight, I’m speaking at the meeting of the Joan Loring Wing Inn of Court.  About a week ago, I decided to mark the occasion by making today’s post about Joan.

Thinking about Joan and “wellness” can be funny.

  • She smoked constantly.  Even in her office.  I remember many a meeting having to look thru Lark smoke to see her across the desk.
  • She drank a ton of soda.  She brought a little cooler full of cans of Coke to every meeting or event that I remember.  Then asked the serving staff to bring her a cup of ice.
  • The soda chased the Cheetos and Thin Mints that she brought along with it.

Cigarettes & junk food.  And from what I recall, her work days began in the middle of the night.  But Joan would be at the forefront of Attorney Wellness.  How do I know?  Because she was all about Attorney Wellness even before it was a thing.

Joan died in a car accident on December 8, 2009.  Two days later, the Supreme Court held a swearing-in ceremony for new lawyers.  Chief Justice Reiber spoke.  He dedicated his words to Joan. The VBA Journal printed his speech here,  It tells the story of Joan, and what she meant to Vermont, far better than I can.

So can others.  In anticipation of this blog, I asked several who knew her to share thoughts on Joan and how she’d view the “attorney wellness” phenomenon.  Here are some responses:

  • “Joan knew the benefits of social interaction, positive mentoring, and just plain support to the profession.  No matter the age, nor level of experience of the lawyer, she was always willing to provide unbiased and meaningful advice.    She promoted wellness among the bench and bar by encouraging personal best behaviors and openness for constructive criticism.    Joan knew that small gestures which invoked humor where absolutely necessary for the practice:  always having “settle” and “pay” M& Ms at mediation would bring some comedic relief to an otherwise stressful situation for both the parties and the lawyers.   While her methods of practicing “wellness” were non-traditional, they were effective to promote the best version of ourselves as lawyers, and deal with the stressors that come with an active practice.”  Attorney Bonnie Badgewick
  • “Joan Wing was like a sister to me.  I can hear her now delivering some irreverent tongue-in-cheek comment about what the legal profession was coming to if it actually needed to focus on ‘wellness’ and on teaching ourselves how to take care of ourselves.  But if someone were not well and she found out about it, she would have been one of the first to respond.  While never taking herself too seriously, she manifested for all of us a caring attitude toward her fellow attorneys, which in and of itself helped promote our collective wellness.” Honorable Peter Hall, United States Circuit Judge, Court of Appeals for the Second Circuit.
  • “You know for Joanie I think over all the years when she served as a leader in so many capacities, what she did and what she said was never about her. Her efforts were not designed to invite praise or attention to herself. I think the motivation was to push us all to be our best selves, not for our self-interest but for the betterment of the whole. The notion that we in the bar need to look after our own mental health and support our friends and colleagues, seems to me to be very much in concert with Joan’s strong sense of duty. Like her father who escaped a German prisoner of war camp in the winter in bare feet, Joanie was tough, with a single-minded devotion to the common good. I will never forget the moment I learned of her death. Through her memory she continues to be an inspiration.” Honorable Paul Reiber, Chief Justice, Vermont Supreme Court.
  • “She absolutely would have been on board with wellness, as long as there was no mandatory smoking cessation program. The first thing Joanie ever said to me was ‘well, are you a shrinking violet or what?’  I told her ‘or what.’  She always made sure to reach out to young women starting out in the RCBA to make sure we were introduced to our fellow RCBA lawyers and to make sure we knew that we weren’t alone in our experiences and could tap into the resources of those who had been there before us.  I am so thankful to her for helping me meet people and making me feel supported as a young lawyer starting out in Rutland County.  She was an endless source of historical information and quick wit, and I feel incredibly lucky to have known her.” Attorney Erin Gilmore.
  • “As to wellness, I agree, she would be on board. Her heart was open as a shrine, and anyone could walk in and be welcomed.  A particular wellness initiative on the part of her and her family: ARC (Advocacy, Resources, Community). She had a special-needs brother who was beloved by his family — the original spark for ARC, which she supported throughout the years. On a personal wellness note, I was phobic about snakes, and eventually went through a course of exposure therapy to overcome my fear. When I finished, Joan was so pleased that she gave me an extraordinarily beautiful Venetian glass pendant in the shape of a snake. She supported my efforts and cheered my triumph.” Attorney Lisa Chalidze.
  • “One thing she told me when there were some issues at my firm was something akin to, ‘No matter how much work you have put into this profession, nobody can prevent what someone else might choose to do to you. Sometimes it is healthier to just walk away.  Being a lawyer is not more important than being healthy.’”  Matt Valerio, Vermont Defender General.
  • “I know she was definitely on board with wellness. I remember on a few different occasions her bringing some folks into the office (or she would go to them), who she was trying to help without posting their troubles for the whole world to see but at the same time letting them know that they needed to get their **together! She was sympathetic but also wasn’t afraid to tell them what was unacceptable. Thank you for keeping her spirit alive, I still miss her each and every day.” Karen Poljacik, Joan’s long-time employee.
  • “Joan epitomized wellness, because she made everyone who encountered her feel great. It was impossible to feel stressed or anxious around Joan. You’d either be laughing too hard, or you’d be marveling at whatever her insight was about the topic of the day.  Plus, you knew that Joan would be the first to help any lawyer in need.  She was a lawyer’s assistance program before we had lawyer’s assistance programs!” Teri Corsones, Executive Director, Vermont Bar Association.
  • “And now we have this attempt to link Joan Loring Wing to ‘wellness’.  Another well-intentioned gesture to connect a cause to a person who did much to distance herself from it.  From the Classic Cokes she snuck into restaurants in her giant purse to the Larks that she and Harold Berger smoked with abandon in her office ‘back in the day’, Joan was the epitome of an unhealthy lifestyle.  Salt and Cheezypoofs were two of her main food groups and she even co-opted M&M’s into her mediation practice with her famously inscribed ‘settle’ and ‘pay’ candies.   But just as [her father] settled hundreds of cases in his own gruff style so did Joan encourage the big picture of ‘Wellness’ in her care for her fellow lawyers and her attitude towards life itself.   If Wellness means embracing life and living it to its fullest without concern for judgment and constraints, then mark Joan down as very well indeed.  Joan may have been a terrible patient but a great friend to all who had the privilege of knowing her.  Her concern for the wellbeing of the attorneys around her was legendary and that should surely entitle her to be enshrined in the Wellness hall of fame.”  Honorable Karl Anderson, Probate Judge, Rutland County.

Attorney Wellness is about improving the profession’s health.  Joan devoted herself to doing so.  May her star never fade from our collective memory or her example from our collective conduct.

I’ll leave you with words from my good friend Eric Johnson, another attorney who knew Joan.  Hootie captures how Joan would remind us to move forward:

  • “Joan was one of the best people I have ever known.  She was appropriately old school, with a wicked sense of humor and a ton of common sense.  She gave a lot of her time and of herself to help others, both within and outside of the Vermont Bar.  It has been nearly ten years since we lost Joanie, and I still miss her.  I keep the card from her funeral in my office, which reads:

Grieve not…
nor speak of me with tears…
but talk of me…
as though I were beside you.
I loved you so…

. .  .’twas Heaven here with you.”

Indeed it was.

Wellness Wednesday: Start now.

My hamstring went on October 4.  It did so because my brain had just sprained itself and, as a result, decided that it’d be a good idea to have the rest of my body run the final 4 miles of a 14-mile run at speed even though I’d raced a 5K the day before.  I haven’t run much since.

The reason I haven’t run much is because my brain remains sprained.  I know what I need to do to run again: rest.  I haven’t.  Instead, I’ve biked, walked, and even tried to run.  As a result, my hamstring hasn’t healed.  What’s especially maddening is that had I rested – something I KNEW I should do – I’d likely be back out there.

And that’s today’s wellness point: everyone reading this post knows what they need to do to improve their wellness.  The trick is doing it.

wellness

As usual, today’s message is not a product of my own. Rather, it’s inspired by Jeena Cho’s recent post in the ABA Journal.   In the post, Attorney Cho shares strategies to train our brains “to locate the positive instead of always focusing on the negative.”  One of the strategies refers to the so-called “G.I. Joe fallacy” and the idea that “having the knowledge of a desired action is not enough to make it happen or to get the desired benefit.”  Cho writes:

“I’ll often work with lawyers who know all the activities they should engage in to increase their well-being and happiness: get more exercise, eat more vegetables, practice meditation, get more sleep. However, they don’t actually prioritize and do the things they know are good for them.

“My advice is this: Start by asking yourself why increasing happiness and boosting your well-being is important. Next, commit to doing just one of the practices daily for at least 21 days. Doing something for only two minutes a day might feel too easy, but keep it simple. Remember, it’s not the duration but the compounding effects of a daily practice that matters.”

The moment my hamstring popped I knew what to do: rest.  I didn’t.  I consciously chose not to prioritize something that I knew was good for me.  As Cho notes, we do the same with wellness.  We know that we need to build time for non-lawyerly activities into our days.  But we don’t.

It’s time to start. 

Find a few minutes each day to do something that will make you happier, healthier, and more productive.  As I should have with my hamstring, you might consider doing nothing.  Prioritizing doing nothing – even for just 3 minutes a day – could be exactly what’s needed to kickstart your wellness.

Make wellness a habit.  And remember: no matter the habit, there was a first time.  Today could be yours.

PS – in 2010, my other hamstring cramped at Mile 18 of the Vermont City Marathon, right in front of one of my high school football teammate’s houses.  He made sure to document the occasion:

VCM Cramp

 

Related Posts:

Monday Morning Answers #211

Welcome to Monday.

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

Honor Roll

 Answers 

Question 1

 I often speak and blog about the 7 C’s of Legal Ethics.  Indeed, I mentioned “competence” above and the 7 Cs were the subject of the first video I uploaded during the pandemic.  Anyhow, here’s a phrase that appears in one of the Rules of Professional Conduct. To which of the 7 C’s does the rule refer?

  • “information relating to the representation, no matter the source.”

Confidentiality.  Per V.R.Pr.C. 1.6(a), a lawyer shall not reveal information relating to the representation of the client.  Comment [3] makes clear that duty of confidentiality is broader than the attorney-client privilege and applies to all information relating to the representation, no matter the source.

Question 2

Red met with Lawyer to discuss potential representation in Red v. Blue. Red chose not retain Lawyer. Now, Blue wants to hire Lawyer.   Under the rules, a factor that Lawyer must consider in deciding whether to represent Blue is whether:

  • A.  During the consult with Red, Lawyer learned information that could be significantly harmful to Red.  
  • B.  Red is likely to proceed pro se instead of finding another attorney.
  • C.  Trick question – there are no circumstances under which Red can ethically represent Blue.
  • D.  Trick question – since Red did not retain Lawyer, Lawyer may absolutely represent Blue.

This is the ”prospective client” scenario.  V.R.Pr.C. 1.18 applies.  A “prospective client” is one who, in good faith, meets with a lawyer to discuss potential representation, but does not retain the lawyer.  The lawyer’s duty of confidentiality applies as if the prospective client retained the lawyer. However, the lawyer’s duty of loyalty is relaxed.  If the lawyer did not receive information that could be “significantly harmful” to the prospective client, the lawyer may represent someone whose interests are adverse to prospective client’s in the same matter that was the subject of the consult.

Question 3

Rule 1.4 requires a lawyer to communicate to a client sufficient information to make adequately informed decisions about the representation.   Some have argued that the duty includes informing the client (a) that the lawyer doesn’t have ________________; or (b) if ____________ lapses during the representation. The Professional Responsibility Board and the Vermont Bar Association recently agreed to form a committee to study the issue.

Which most accurately fills in the blank?

  •  A.  a trust account.
  •  B.  a succession plan.
  •  C.  malpractice/professional liability insurance.
  • D.  a law license.

 Question 4

 Law Firm is short on cash.   Investor offers to provide cash in exchange for an ownership interest in the firm.   May the lawyers at Law Firm agree to the offer?

  • A.  Yes, if Investor doesn’t direct the lawyers’ professional judgment.
  • B.  Yes, if Investor’s name is not added to the firm name.
  • C.  A & B.
  • D.  No.

Many consider the prohibition on non-lawyer ownership and investment in law firms to impede access to justice.  For more, see this blog post.

Question 5

 Speaking of award winners . . .

. . . This is fictional attorney Kim Wexler.  She’s in a tv show.

Kim Wexler

Earlier this year, the show released a series of YouTube videos called “Ethics Training with Kim Wexler.”  In them, and in character, Wexler offers tips on legal ethics and professional responsibility. A few weeks ago, one of the videos won the Emmy Award for Outstanding Short-Form Comedy.

On the show, Wexler’s partner is one of the most unethical lawyers in TV history. A few seasons ago, New Mexico suspended his law license. He’s since regained it.  I imagine he’ll eventually flee the law and work at a Cinnabon in Nebraska.

Name the show.

Better Call Saul.

Attorney Wexler’s legal ethics videos are here.

Saul

Social Media & Legal Ethics: Keep It Real.

As I usually do every year, I presented a CLE for the Vermont Paralegal Organization on Wednesday.  I present for many groups.  I assure you that there is no group more dedicated to providing competent services than Vermont’s paralegals.  They are a valuable resource that we should not overlook or undervalue.

The topic was social media & legal ethics.  My theme was “Keep it Real.”  I tried to convey that social media isn’t so much the cause of misconduct as it is a relatively new forum for misconduct that has always existed. That is, if it’s wrong in real life, it’s wrong on social media.

Here’s how I tried to make my point.

Social Media

Consider the following 8 headlines.  You’re only allowed to click on 4.  Which do you choose?

  1. Judge reprimanded for sexting women in his robes.
  2. Judge sanctioned for harassment.
  3. Instagram posts land Lawyer in hot water.
  4. Lawyer sanctioned for misrepresentation to a tribunal.
  5. Lawyer suspended over rude Facebook message to client.
  6. Lawyer suspended for failing to properly communicate with client.
  7. Facebook spoliation results in $700K in sanctions and 5-year license suspension.
  8. Lawyer suspended for discovery violations and lack of candor to a tribunal.

I’m guessing that many of you have already figured it out.  While the list includes 8 headlines, there are only 4 stories.  Clicking on 1 or 2 would return the same story.  The same goes for 3 & 4, 5 & 6, 7 & 8.

It seems to me that “social media sells.”  Its click-bait nature, I think, does a disservice in the sense that in each of the 4 matters, the conduct would have resulted in disciplinary sanctions even if it had not involved social media.

For instance, the Tennessee judge’s ‘overtly sexual’ messages would’ve have been just as wrong if sent via U.S. mail with accompanying Polaroids.  (h/t ABA Journal).

The Instagram posts that revealed this lawyer’s dishonesty did not make the lawyer’s misconduct any worse than it already was.

A lawyer who is rude and/or non-responsive to a client’s Facebook Messages is no different than a lawyer who is rude and/or non-responsive to a client’s phone calls and letters.

Finally, counseling a client to destroy evidence, lie about it in discovery, and then attempt to cover-up the entire scheme is a violation regardless of whether the evidence is electronic. (h/t Above The Law).

Imagine the following ethics inquiry:

  • Lawyer: “Mike, can I send a Facebook message directly to my client’s represented adversary?”
  • Me: “Would that be okay to do by letter in real life?”
  • Lawyer: “No.”
  • Me:  “There you have it. Keep it real.

Below, I’ve pasted in links to resources.  It’s a sampling, not an exhaustive list. If you only have time for one, I recommend the Social Media & Legal Ethics Guidelines published by the Commercial & Federal Litigation Section of the New York State Bar Association.

In closing, does social media raise new questions?

Yes.

But, often, the answer is the same as it was in the old days.

What’s wrong is wrong.

Resources

 

 

Monday Morning Answers #210

I hope everyone made the most of the long weekend.  Friday’s questions are here.  The answers follow today’s Honor Roll.

Authentic wins the Kentucky Derby - CNN
I picked wrong again.

Honor Roll

  • Matthew AndersonPratt Vreeland Kennelly & White
  • Evan BarquistMontroll Backus & Oettinger
  • Alberto Bernabe, Professor, John Marshall Law School
  • Beth DeBernardi, Administrative Law Judge, VT Dept. of Labor
  • Erin GilmoreRyan Smith & Carbine
  • Robert Grundstein, Esq.
  • Jeanne Kennedy,  JB Kennedy Associates, Blogger’s Mom
  • John LeddyMcNeil Leddy & Sheahan
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Hal Miller, First American
  • Jim Runcie, Ouimette & Runcie
  • Jay Spitzen, Esq.
  • Jonathan Teller-Elsberg, Hershenson. Carter, Scott & McGee
  • Thomas Wilkinson, Jr., Cozen O’Connor
  • Zachary York, Child Support Specialist II, Office of Child Support 

Answers

Question 1

Can a lawyer accept compensation from someone other than the client?

  • A.  Yes, but only in insurance defense matters.
  • B.   Yes, but only if the client is indigent.
  • C.   Yes, but the rule permitting it also discourages it.
  • D.   Yes, if the client gives informed consent, the payor doesn’t interfere with the lawyer-client relationship, and information relating to the representation of the client is not disclosed to the payor except as authorized by the rule on client confidences.  V.R.Pr.C. 1.8(f).

Question 2

Consider the following:

  • must be in a writing that is signed by the client.
  • cannot be used for representing a defendant in a criminal case.
  • cannot be based on securing a divorce.
  •  

Here, we’re talking about:

  • A.   Contingent Fees.  V.R.Pr.C. 1.5(c).
  • B.   Flat Fees
  • C.   An agreement to limit the scope of a representation
  • D.   All the Above

Question 3

A lawyer called me with an inquiry. I listened, then responded “the first question is whether the new matter is the same as or substantially related to the old matter.”

Given my response, the lawyer called to discuss the rule on:

  • A.  file retention
  • B.  fees/trust account management
  • C.  communication with a represented person.
  • D.  a potential conflict of interestV.R.Pr.C. 1.9(a).

Question 4

Here’s a sentence that is in the comment to one of the rules on candor.  Your task is to fill in the blank.

“_________________   partially true but misleading statements or omissions that are the equivalent of affirmative false statements.”

  • A.    A lawyer does not violate this rule by making . . .
  • B.    Misrepresentations can also occur byV.R.Pr.C. 4.1, Comment [1].
  • C.    Negotiations necessarily include . . .
  • D.    According to my dad, Lawyers excel at making . . .

Question 5

The things we do for our clients!!

Sydney Carton was a brilliant lawyer who struggled with alcohol & depression.  His most famous client was Darnay.

While not explicitly clear from the historical record, I’m pretty sure that Darnay filed a disciplinary complaint against Carton.   In it, he alleged that Carton failed to provide him with competent & diligent representation in a criminal trial that resulted in a death sentence for Darnay.

The complaint became moot when Carton, who bore an uncanny resemblance to his client, switched places with Darnay just before the execution.  Carton’s final words before the guillotine fell:

  • “It is a far, far better thing that I do, than I have ever done; it is a far, far better rest that I go to than I have ever known.”

Name the book.

A TALE OF TWO CITIES.

Five for Friday #210

The Friday before Labor Day always affects me.

In the rhythm of my life, there’s no other weekend that I want to last longer than this one.  Today still feels like summer, Tuesday morning won’t.  By then, we’ll have arrived at the crescendo to which we’ve been inexorably marching since the first August night we noticed that it was darker a bit earlier than it had been the night before.

Today, the feeling isn’t the same. Over coffee, I pondered “why?” Initially, I settled on “because COVID Summer sucked and there’s no reason to feel bad about it ending.”

Then I realized something: I bear my fair share of the blame.

Did COVID impact the summer?  Yes.  But I let the pandemic take more of my summer than it otherwise would’ve. Basically, I failed at the one thing I can always control: my reaction to things that I can’t.

My brother didn’t fail.   Instead, he bought a pop-up camper.  Since mid-July, he’s spent most weekends socially distanced at campgrounds around New England – fishing, grilling, having drinks by fires.  You know, living.

I’m going to get back to doing the same.  Being thankful for what’s available instead of ruing what isn’t.  I’m starting this weekend by joining him at a campground at Lake Dunmore.  For me, this year, Labor Day weekend marks a new start, not a depressing ending.  I’ve heard that many of you have had summers like mine.  Maybe we can all re-start together.

Oh! And here’s a segue: what wasn’t available in May because of the pandemic is available tomorrow, The Kentucky Derby! Elizabeth Kruska is the incoming president of the Vermont Bar Association.  Liz is also a horse racing aficionado and, in 2018, was kind enough to let me interview her for the Friday post on the day before the Derby.  The interview is here.  Note: Liz picked the winner!  This year, she likes Tiz The Law.

If you’re into wagering, take Liz’s advice over mine.  The horse that I picked to win in that 2018 post came in 20th

Out of 20. 

Still, undeterred, here are my picks for tomorrow.  I like an upset:

  • Ny Traffic
  • Tiz The Law
  • Honor A.P.

Which, of course, means you should go with:

  • Tiz The Law
  • Max Player
  • Authentic

Enjoy the weekend!

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 don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

Can a lawyer accept compensation from someone other than the client?

  • A.  Yes, but only in insurance defense matters.
  • B.   Yes, but only if the client is indigent.
  • C.   Yes, but the rule permitting it also discourages it.
  • D.   Yes, if the client gives informed consent, the payor doesn’t interfere with the lawyer-client relationship, and information relating to the representation of the client is not disclosed to the payor except as authorized by the rule on client confidences.

Question 2

Consider the following:

  • must be in a writing that is signed by the client.
  • cannot be used for representing a defendant in a criminal case.
  • cannot be based on securing a divorce.

Here, we’re talking about:

  • A.   Contingent Fees
  • B.   Flat Fees
  • C.   An agreement to limit the scope of a representation
  • D.   All the Above

Question 3

A lawyer called me with an inquiry. I listened, then responded “the first question is whether the new matter is the same as or substantially related to the old matter.”

Given my response, the lawyer called to discuss the rule on:

  • A.  file retention
  • B.  fees/trust account management
  • C.  communication with a represented person.
  • D.  a potential conflict of interest.

Question 4

Here’s a sentence that is in the comment to one of the rules on candor.  Your task is to fill in the blank.

“_________________   partially true but misleading statements or omissions that are the equivalent of affirmative false statements.”

  • A.    A lawyer does not violate this rule by making . . .
  • B.    Misrepresentations can also occur by . . ..
  • C.    Negotiations necessarily include . . .
  • D.    According to my dad, Lawyers excel at making . . .

Question 5

The things we do for our clients!!

Sydney Carton was a brilliant lawyer who struggled with alcohol & depression.  His most famous client was Darnay.

While not explicitly clear from the historical record, I’m pretty sure that Darnay filed a disciplinary complaint against Carton.   In it, he alleged that Carton failed to provide him with competent & diligent representation in a criminal trial that resulted in a death sentence for Darnay.

The complaint became moot when Carton, who bore an uncanny resemblance to his client, switched places with Darnay just before the execution.  Carton’s final words before the guillotine fell:

  • “It is a far, far better thing that I do, than I have ever done; it is a far, far better rest that I go to than I have ever known.”

Name the book.

Legal Ethics