Wellness v. Well-Being

It’s Wellness Wednesday!  Or, better yet, it’s Well-Being Wednesday.

At tomorrow’s Mid-Year Meeting of the Vermont Bar Association, I’m presenting a CLE that will include a discussion of attorney wellness.  The seminar will open with a look at the recommendations made by Vermont Commission on the Well-Being of the Legal Profession in its State Action Plan.

The Commission grew out of a report from the National Task Force on Lawyer Well-Being: The Path to Well-Being: Practical Recommendations for Positive Change , a report, in turn, that grew out of the ABA/Hazelden study that found ““substantial and widespread levels of problem drinking and other behavioral health problems in the U.S. legal profession.”  You can read more about the Hazelden study here.

In short, the study showed that the profession isn’t well. It suffers from a behavioral health problem.  That’s wellness, or more to the point for the profession, a lack thereof.

Well-being is different.  To oversimply, I view it as the proactive steps we take to stay healthy & happy. While funding a Lawyers Assistance Program that will help lawyers who are facing serious health issues is important, so is well-being.  As they say, an apple a day.

Here’s a great example.

On Monday, an attorney called me with an ethics inquiry.  I’m all about mixing business with pleasure, so we also chatted about basketball.  Specifically, tomorrow’s UVM v. Florida State game in the opening round of the NCAA tournament.  Tip-off is at 2:00 PM in Hartford, CT.


The attorney told me that she’s going.  She’s taking her son.  When he initially asked, the attorney’s reaction was something like “I can’t miss a day of work.”  But, then, the attorney said to herself “yes, I can.  This is exactly why I work for myself.”

That’s well-being.

As I’ve blogged, make time for what matters.  Family time matters.

Go Cats Go!

For more great ideas on well-being and how to make it part of your office culture, check out the ABA’s Well-Being Toolkit Nutshell: 80 Tips for Lawyer Thriving.  It’s a cool little flier that is chock full o’ tips and links to other resources.  Also, if you work in a firm, consider the ABA’s Well-Being Pledge. The list of signatories grows by the day.




Wellness Wednesday: Meet Molly Gray

It’s Wednesday, so you know what that means!

I like to use the Wellness Wednesday posts to introduce you to members of the legal profession who make sure to make time for non-legal, non-lawyerly things. As the VBA’s Jennifer Emens-Butler says, “pursuits of happiness.”  Links to my prior posts on lawyers and their non-lawyerly interests appear at the end of today’s blog.

Today, I’d like to introduce you to Molly Gray.

Molly Gray's Profile Photo, Image may contain: Molly Gray, smiling, standing

Molly is an assistant attorney general. She’s also a top-notch cross-country skier who grew up on a working farm. Molly was kind enough to agree to answer questions that are loosely related to her background, legal ethics, and attorney wellness.  All mistakes and typos are mine, not Molly’s.

MK:Thank you for doing this!  Like me, you grew up in Vermont. Unlike me, it wasn’t near the Burlington airport. Tell us a little about life as Molly Gray before you went to law school?

 MG: Thanks for reaching out!   Where to begin, I grew up on a farm. A real working vegetable, fruit and dairy farm in Newbury on the Connecticut River. I was born on the farm. Yes, in the farm house in the early 1980s. My parents retired from competitive ski racing and shifted all that competitive energy to farming. They have an indomitable love of labor, Vermont and being outside. The skiing, at least, was contagious. I attended Oxbow High School (that would be the Oxbow “Olympians”) and a ski academy in southern Vermont, the Stratton Mountain School. All the skiing and probably farming in those early years, led to a scholarship to ski for the University of Vermont. I am extremely fortunate. After four years of racing, a budding interest in government, law, and international relations drove me, like my parents, to zero in on something new; an eventual legal career. That being said, I was 22 and had never really left Vermont! Ultimately, I attended Vermont Law School, but there was quite the eye-opening journey in getting there several years later

 (MK Note:  in 2015, VTDigger featured Molly’s parents’ farm)


Molly & her parents

(Molly’s parents & her brother)

MK:  Very interesting!  So much information. But first things first.  I have roots in the Upper Valley.  My mom grew up in Bradford and was a Bradford Academy Admiral.  In my job, I often preach a lawyer’s duty of competence.  As a Newbury native, what is the only competent way to pronounce your home town?

MG:  You had mentioned the Upper Valley connection. You are aware then of the friendly rivalry between Bradford folks and the community in Newbury. Frank Bryan once said Newbury is the town that time forgot. That’s probably about right.   It is “New Bury.”  It’s an “ury” instead of an “erry” and the “B” is right there with the “New.” “NewBury”

MK:  Professor Bryan was my favorite professor at UVM!  Speaking of UVM, you skied for the Cats.  What were your events? Also, I don’t think people realize how amazing it is to receive a ski scholarship to UVM. Only 3 schools have won more national championships.  That means that UVM is to college skiing what Duke is to men’s college basketball. Was UVM your dream all along?

MG: What a great time to talk about skiing – the University of Vermont Ski Team just hosted NCAA’s and came in second behind Utah. Go Cats! I will quietly admit that there was a short-lived and naive dream of skiing for CU Boulder but the then Director of Skiing, Chip LaCasse, to his credit, was recruiting locally (rather than internationally) and gave a handful of Vermonters opportunities of a lifetime.

I can’t comment on Duke basketball, but UVM skiing is not for the faint of heart. The nordic ski team trained every day, some days twice per day, with the exception of Monday, from August to March and all summer long. Races ranged from 5kms to 20kms, both classic and skate, with the occasional relay or sprint relay. Although skiing is an individual sport, in college you race as a team. Each Thursday we would load up the vans and drive to races or “carnivals” hosted by colleges across New England. Alpine and nordic team results would be combined after two days of racing with one collegiate team coming out on top. As you might imagine, there were UVM traditions to be upheld and no shortage of rivalries.

I raced all four years (not always fast) and served as a captain. Above all my teammates became some of my closest friends and remain so to this day.

MK:  Colorado tries its best to beat UVM! That would’ve been a conflict of interest! #ThisIsVermont  The Buffs loss was our gain.

All kidding aside, great answer!  A few things.

First, the work required.  Your success as a skier didn’t come by accident.  The dedication to the training.   I can’t imagine the time commitment!  I suspect that growing up on a working farm was like skiing.  Both probably involved lots of hard work, at hours that most people weren’t up, in weather conditions that kept most people inside.  Did lessons you learned on the farm help with being a competitive skier?  Did both (or either) help you to tackle the workload that is the first year of law school?

MG: Thanks! Although I have to say this interview is making me sound super tough and disciplined. I’m not! I still struggle with an early morning workout. To answer your question though, I do think growing up on a farm instilled an inevitable attraction to hard work and being outside. Farming, and having parents who do not shy away from a little healthy competition, probably left me and my siblings constantly self-imposing physical challenges–why carry one flat of strawberries when you can carry 2 or 3 or by end of summer 4. Equal parts training and efficiency. Without question, managing school work while ski racing (or vice versa) at UVM was great preparation for law school. I also came to appreciate, as I am sure many in the legal community do, that the most productive, “clear-headed” work, comes in the hours after a good workout.

 MK: Clearing the head.  That’s wellness!  I’m with you though: as much as I love the idea of sunrise runs that I finish before work, those early wake ups are NOT fun.  But, speaking of wellness, do you still ski?  In legal ethics, I often talk about conflicts.  For some athletes, the conflict that exists between doing something for enjoyment vs. doing it as a competitor is too much to overcome.  So, once they stop competing, they give up the sport. Having competed at the highest levels, do you ever find it difficult to ski for the pure enjoyment of it??  Conversely, I still love to run even though I’m not as fast as I used to be. As much as I love it, there are times where what I wouldn’t give for just one more race as good as I once was.  So, even if you’re out enjoying a beautiful & relaxing day on the trails, does your mind ever wander to that feeling you used to have as you waited at the starting line in Green & Gold?

MG:  This is a great question! I’ll admit I still have the occasional racing dream. It normally starts out with feelings of incredible and surprising speed and “I’ve still got it” followed by profound and mortifying exasperation. When I was racing, I loved sprint races — 1km qualification, followed by the top 30 or so skiers racing in heats of 5 or 6 with 2 or 3 racers progressing from each heat to a final heat. It is a more tactical, high-energy and spectator-friendly race. In my dream, I can “fake it” for the qualification round.

Some athletes learn to ski in order to race. Although my parents were competitive ski racers, to his credit, my father taught us to ski for the love of skiing. Racing came later, and random sprint dreams aside, I crave a good ski far more than the competition.

 MKLove the dreams! Mine are often daydreams as I’m running.  The body & brain re-living the feeling of a PR or great race.  I want to go back to something you said earlier.  You mentioned the life-long friendships with your teammates.  There’s something about the shared experience that forges bonds – not only among teammates, but among competitors. My closest friends are people I met thru basketball.  My “attorney wellness” is nourished by those relationships outside the legal profession.  Do you feel the same?

MG: Absolutely. This is by no means a dig at our profession, I am happy to run or ski with fellow attorneys but sometimes you have to be clear about why you are doing what you are doing. Basketball, skiing, running, should be cathartic. Inviting colleagues does not always make it so. Inevitably, you start talking about work. There have to be some ground rules!

I recall the first winter I did not ski race and did not have teammates. It was 8 months after graduating from UVM, I moved to Washington, D.C. to work for Rep. Peter Welch. I had not figured out the work-life balance and it was the first winter without racing or a true winter. My body was miserable and confused. On the advice of a friend, I joined a running club “Fleet Feet Sports” in Adams Morgan. A couple of the runners became close, non-work, running friends. We trained for the USMC marathon together and built a unique bond that was cathartic, supportive, competitive and limited to our non-work identities. It was terrific. I have lived in a lot of different places and try to forge these bonds.


(Molly, some of her UVM teammates, and Rally Cat)

MK: I like those bonds.  As lawyers, we seem to focus on discrete practice areas, tending to bond with others in the same area.  How’d you end up focusing on Nordic vs. Alpine?  Also, once we pick a practice area, we seem not to venture to another.  Do you downhill ski?

MG: I like the comparison to practice areas. I keep both sets of equipment in my car (just in case…). I learned to alpine ski at one of my favorite spots in Vermont, “Northeast Slopes” in East Corinth. It’s one of the oldest rope tows in the United States, and still operating today. One of Vermont’s hidden treasures. Why nordic? My mother was an alpine racer (an adrenaline chasing downhill racer) and my father was a nordic racer. Ultimately, nordic won over, but the practice areas are ever evolving.

MK:The T-Bar! We used to drive by the Slopes on our way to Bradford! Speaking of “ever evolving,” can we talk about training equipment for a moment? I often speak and blog about tech competence. A few years ago, I was running down Spear Street. The UVM ski team was coming other way. It was summer, so they were doing dry land training. They had these contraptions that looked like giant elliptical machines! I was fascinated.  Did you ever train on one of those?

MG: Roller skis! I haven’t put on a pair since 2006. Hundreds, likely thousands, of miles banked on those “contraptions”. I hope the design has improved. In my day they took a lot of balance, and although they were the closest thing to skiing (literally, short skis with wheels on them), they contributed to some pretty epic wipeouts. No breaks! While at UVM, we did an annual 50km or so fall training “ski” through Underhill, Cambridge and up to Fairfax. All told, roller skis do provide a unique way to see some beautiful parts of Vermont.

MK: Yikes!  Concrete ain’t exactly fresh powder!   I do not wear headphones on my runs, even the 20 milers.  Other runners think I’m nuts.  You are out for a long ski by yourself.  Headphones or not?

MG: Headphones? No. You’re out in the woods and its beautiful. Enough said.

 MK:Runners should take heed!  Ok, circling back for a moment. You mentioned an eye-opening journey from your last days at UVM to your first days at VLS.  Can you give us some highlights of the journey?

 MG: I really don’t want to bore your readers to death. In a nutshell, upon graduating from UVM in 2006, I worked as a Congressional campaign scheduler for longtime attorney and state senator Peter Welch. Over a 3-month period, Welch visited all 251 towns (and gores) in Vermont. Ultimately (and I would like to think the 251 “marathon” had something to do with it), Welch won that November and I was offered a job in Washington. A whole crew of Vermonters were hired. It was a tremendous honor to be part of that. Eventually, and because the world was calling, I went on to work for the Geneva-based International Committee of the Red Cross (ICRC). As a Congressional Affairs advisor in the Washington office, I worked with US lawyers and policymakers on international law issues including those arising at the detention facility at Guantanamo Bay, in Iraq and Afghanistan, and with the emerging use of drones. I travelled a lot during that time and led missions to Haiti, Uganda, the Democratic Republic of the Congo, the former Yugoslavia and Georgia. It was eye-opening to say the least! A far cry from Vermont, and as they say, “you can take a girl out of Vermont, but …,” by 2011 I was ready to come home and get cracking on law school.

 MK: Wow! Traveling the world to help people. You did Vermont proud!  And we’re lucky to have you back.  Okay, who are the 2 or 3 other skiers, living or dead, who you’d pick to be on your “dream relay team?”


  •  Bill KochA Vermonter and the first American ever to win a medal at the Olympics (Innsbruck ’76) in cross-country skiing. For all intents and purposes, he also invented the “freestyle” or “skate” technique.
  • Jessie DigginsNot a native Vermonter (I’m all about inclusivity) but she trains here now, and second American ever to win a medal at the Olympics (PyeongChang ’18) in cross-country skiing. She is an awesome ambassador for the sport and role model for girls.
  • Bob GrayYep, going with my old man. I’ll be honest, there is not a person on the planet who loves the sport as much as he does. All heart.

MKGood job getting Dad in there!  I read in the Valley News that he’s still kicking butt!


(Molly and her Dad)

MK: Earlier you mentioned classic vs skate skiing.  With the duty of competence in mind, do you have any thoughts on a lawyer who shows up at Trapp Outdoor Center, rents classic skis, then proceeds to try to skate ski all over the property?

MG: Oh, no. Such a brave lawyer. That would be comparable to arriving criminal court and attempting to litigate a civil claim.  I’m always happy to advise on equipment and better yet meet for a ski and especially at Trapp’s.

MK: Molly – that is the perfect closing argument in your case to disbar me from cross-country skiing: “Kennedy is no Bill Koch: it’s like he’s a lawyer who brought a civil claim to criminal court.”

Thank you Molly Gray! Hope some people are inspired to get out and enjoy these last few weeks on the trails!

Related posts:

Wellness Wednesday: Judge Garland & My Cousin Vinny

Today, three of my favorite topics collide:

  1. A lawyer’s duty of competence
  2. My Cousin Vinny
  3. Attorney Wellness

To me, attorney wellness is much more than the staggering rates at which behavioral health issues affect lawyers, their non-lawyer assistants, judges, and law students.  Well-being also includes enjoying the light moments whenever possible.

The very first rule in the Rules of Professional Conduct requires lawyers to provide clients with competent representation.  It’s widely recognized that Vincent Gambini’s cross-examinations in My Cousin Vinny more than satisfied the duty of competence.

As I’ve previously blogged:

  • “Many great legal minds have mentioned the movie.  For proof, scroll down to the “critical reception” section of the film’s Wikipedia page.  There, alongside references to Justice Scalia and Judge Posner, you’ll see a quote from Alberto Bernabe.  A frequent member of this blog’s #fiveforfriday Honor Roll, Professor Bernabe is also the author of My Cousin Vinny: a story about legal education.  The post links to a fantastic post on Abnormal Use that honored the movie’s 20th Anniversary and that includes other great links to articles on the movie and the legal ethics issues raised in it.”

Time to add another great legal mind to the list: Judge Merrick Garland.

Yesterday, the United States Court of Appeals for the District of Columbia Circuited issued this opinion.  Judge Garland opened the opinion as follows:

  • “In 1992, Vincent Gambini taught a master class in cross-examination.  Trial
    counsel for the National Labor Relations Board and the National Union of Healthcare Workers apparently paid attention.”

Keith Lee of LawyerSmack is one of the best follows on Twitter.  Yesterday, he commented on Judge Garland’s references to My Cousin Vinny.  Lee’s tweet thread is here.  AboveTheLaw blogged on both Judge Garland’s opinion and Lee’s tweets.

If you’re a fan of the movie, I recommend the opinion, Lee’s tweets, and the ATL blog.

Personally, I thank all three for contributing to my well-being, while also incorporating the duty of competence.

Image result for my cousin vinny

Wellness Wednesday: Meet Andrew Manitsky

It’s Wednesday, so you know what that means!

I like to use the Wellness Wednesday posts to introduce you to members of the legal profession who make sure to make time for non-legal, non-lawyerly things. As the VBA’s Jennifer Emens-Butler says, “pursuits of happiness.”  Links to my prior posts on lawyers and their non-lawyerly interests appear at the end of today’s blog.

Today, I’d like to introduce you to Andrew Manitsky.

Andrew is an attorney at Lynn, Lynn, Blackman and Manitsky.  He sits on one of the PRB’s hearing panels (our version of a trial court) and is a member of the VBA Board of Managers.  Andrew chairs the VBA’s Intellectual Property section.

None of that is wellness.  At least, not mind kind of wellness.  This is:  Andrew is in a band!

Andrew was kind enough to agree to answer questions directly related to his band & attorney wellness, and loosely related to professional responsibility.

MK: Thank you for doing this!  So, keeping in mind that Rule 7.1 prohibits lawyers from making false or misleading communications about their services, and there’s Vermont case law that holds that the rule prohibits advertisements that make qualitative comparisons to other lawyers, tell us about your band and how awesome it is.

AM: Thanks for asking me!  (I think.)  Well, I’m quite mindful of Rule 7.1, as well as comment 2, which prohibits “paltering” – statements that are true, but misleading.  But more to the point: my current band is McKenna Lee & The Microfixers.  Our set list is based on the Eva Cassidy songbook, but we also play a variety of classic soul and dance tunes. 

MK: Trust me, we will cover paltering later! For now, let’s lay a foundation:  which Microfixer are you and who are your band mates?  Other lawyers?

AM: I’m the keyboardist, and the music director.  The band is mostly folks who work at UVM Medical Center and are actively involved in the “Patient Safety Movement” to eliminate preventable medical errors.  In the United States alone, more than 200,000 people die in hospitals every year from things like not washing hands, bad hand-offs between doctors on shift changes, wrong medications, wrong dosage, infections, and the like.  These are mistakes that can be avoided, so the movement works on sharing data and establishing best practices.  Last month, the band played the annual world summit in Huntington Beach, California, and it was a great event.  Bill Clinton was the keynote speaker.

AM 3

MK: Bill Clinton! In some states, the advertising rules prohibit lawyers from paying famous people to endorse them. I saw you play once at The Lincoln Inn. Who is the most famous person you’ve ever spotted on the dance floor? Did President Clinton dance at your gig in Huntington Beach?

AM: No, I’m sorry to report that President Clinton didn’t dance.  Or sit in on sax, either, which would have been awesome.

MK: I guess that means that I remain the most famous to grace a McKenna Lee & The Microfixers dance floor!  From what I’ve read, the band is sort of the “house band” for the Patient Safety Movement. How’d that come about?

AM: I was playing in a band with Charlie Miceli, who is a VP at UVMMC.  He formed Microfixers.  Then they brought me in just to music direct (they had a keyboardist).  Then I joined them (we had two keyboardists at one point), and then the other keyboardist quit.  But right: we are kind of the house band.  Last year, a stripped down version went to London for the summit.  I didn’t go, but still ran the practices.

MK: By the way, what’s a “microfixer?”

AM: The idea behind the name “microfixers” is that very small fixes can make a big difference.  In fact, the band has an original song called “Little Things” which is about that concept, and it was inspired by the tragic story of Emily Jerry.  Emily was diagnosed with a tumor.  After multiple surgeries and treatment, an MRI showed that the tumor was gone.  She was undergoing a last round of chemotherapy, just to ensure that the cancer was truly gone, when the pharmacy technician decided not to use a standard prepared bag of sodium chloride (with less than 1% solution) but instead compounded a bag herself with a concentrate of 23.4%.  Emily died.  She was two years old.  Her father, Chris, is a leading patient safety advocate pushing for changes in the way IV drugs are compounded. 

AM 1

MK: Such a sad story, but what a great concept. I’m a big believer that the legal profession could accomplish a lot by doing “Little Things,” like saving one starfish at a time.  Anyhow, I digress.  As you know, conflicts of interest are huge in my world. As music director, do you run into conflicts with your band mates when, as keyboardist, there’s a particular song that you like to play, but maybe the rest of the band isn’t so high on?  Or, I noticed you answered “music director,” not “manager.”  Are there conflicts between music & management in a band?

AM: Good questions.  As for song choice, it routinely happens that a suggestion of mine isn’t embraced.  That’s ok.  If I can’t convince them that the song is a good choice, then that’s my fault.  And no, I’m not band manager.  My role is to help with arrangements and make sure it’s all working.  Frankly, the musicians are so good that I don’t need to do much at all.  But I like to be value-added, so each time we play through a song I listen for one or two minor adjustments that could be made to improve the overall mix.  Maybe it’s having a part drop out for a few bars to allow another part to shine, or maybe it’s tinkering with the effects on a guitar.

MK: I’m intrigued by your point that it’s your fault if you can’t convince the band that a song is a good choice. That’s a lot like legal advocacy.  I can recall struggling with how to shape my presentation prior to hearings or Supreme Court arguments. On the one hand, I want to capture the judge’s attention early, but on the other I know that I have to provide a reason to believe in my position. Is songwriting similar? I mean, simply, sometimes I stop listening to a new song after 10 seconds if I’m not into it.

AM: Absolutely.  Studies show that people decide whether they like a song in the first 5 or 6 seconds.  And I think oral arguments and briefs and other presentations are exactly the same.  You need to tell the judge why she is reading this, why she should care about it.  If you can’t do that in one or two sentences, you haven’t figured out your case yet.  

MK: The Hook by Blues Traveler! Set the hook early and, like Popper sang, it’s what brings ‘em back!  Another reason to make your point quickly with judges & juries, there aren’t “encores” in the law. Once you rest, you rest.  What’s the band’s go-to encore?

AM: It changes and depends on the crowd.  We have done everything from “Yeah!” by Usher to, yes, “Don’t Stop Believin.”

MK: A few weeks ago Jeff Messina joked that audiences always request “Free Bird!!”  Knowing that you can’t ever guarantee results for a new client, what song can you (almost) guarantee someone in the audience will request?

AM: I really enjoyed your interview with Jeff.  And I will note that he and I shared that drummer!  He happened to be a great cook who made wonderful curry.  Good drummer, great curry.  Anyway, the requests depend on the venue, but he’s absolutely right: “Free Bird” is a sure thing.  With my old band, I would sometimes introduce a song by saying: “This one is by special request.”  But the song request was from me.  I just felt like playing whatever song that was.  I guess that’s paltering.

MK:  Turn it up to 11.  Plus, I KNEW we’d find a way to work “paltering” in!  Great job!  By the way, I’m trying to teach myself how to play piano.  I’m barely a beginner and don’t really have the patience for the basics. So, instead, I focus on riffs from famous songs.  Right now I’m trying to master the intro to Don’t Stop Believin’.  It’s a lot harder than it sounds!

AM: It is!  And part of the problem is the “official” sheet music.  It’s wrong. 

MK: Damn them.  Not cooperating with bar counsel is an ethics violation in and of itself. Ok, so, I often talk about tech competence.  Some lawyers seem reluctant to adopt new technology.  I often hear grumbles that “this way has worked for ever, why change?”  Conversely, I doubt that you lug a string piano to your gigs. And, I’m guessing Mozart would be fascinated by a modern keyboard and its electronic & digital bells & whistles.  Thoughts?

AM: I love new technology, and how it enables us to better serve our clients.  As you have frequently pointed out, if you aren’t taking advantage of it, you run the risk of violating Rule 1.1 (Competence).  As for music, back in the 1980s I used to lug (with help from a band mate) a Rhodes Stage 73 electric piano to gigs.  It was 100 pounds.  But now, I use a Korg X-50, which is 9.5 pounds.  And I can get virtually any sound out of it, including a Rhodes sound!

AM 2

MK: Now that’s tech competence!  I confess, until you mentioned her, I’d never heard of Eva Cassidy. Now, I’ve learned that one of her more famous songs is her cover of “Over the Rainbow.” Your practice includes intellectual property.  You’re the Chair of the VBA’s Intellectual Property Section. You’re in a band that covers other artists.  Is a song intellectual property?

AM: Yes, songs are protected under the Copyright Act.  Copyright is a bundle of rights, and one of the rights is public performance.  When a band performs another artist’s song at a gig, the band is technically infringing the copyright — unless the band has a license.  Now, bar bands obviously don’t go around negotiating licenses, and the performance rights organizations (like ASCAP) that administer copyrights for artists don’t expect them to.  Instead, the organizations enter into licenses with the establishments, so that bands can play the covers.  Not so long ago, there was a bar in the Burlington area that only hired bands that played original music.  Why?  So they wouldn’t need to pay for the license for cover songs!

MK: Very interesting.  Have you ever cited the U.S. District Court opinion on the request for a preliminary injunction in Metallica v. Napster?

AM: Not specifically.  When advising clients, though, I point out that in peer-to-peer network cases, infringers have been found liable for substantial sums of money even when they aren’t charging for the songs (or movies or whatever).  Often, folks think that giving the work away for free means as a matter of law that there are no damages, or that it’s “fair use.”  Wrong.

MK: That case always makes me think of the movie The Italian Job.  But that’s a story for another blog.  Ok, a few final questions:  As a lawyer, I think it’s important to mentor and to have a mentor. A good mentorship can make both the mentor & mentee more competent.  I’m sure you’ve had some great legal mentors.  Who is a musician who has inspired you?

AM: Paul Simon is one.  And he’s inspired me not just musically, but in legal writing, too.  He begins the second verse of “Something So Right” with the line: “They got a wall in China, it’s a thousand miles long.”  I remember he once explained that part of the power of that line was credibility.  By saying something so obviously true, it helped lend credibility to the rest of what he’s saying.  That’s useful to keep in mind in legal writing, because credibility is everything. And on a related note, in my view, all songs are really just arguments.  The most persuasive songs climb to the top of the charts. 

MK: Nice! Too bad Kodak never hired you in an IP case.  You could’ve used the lyrics to “Kodachrome” in your brief.  How important is it to you to have the band as an outlet or alternative to the law?

 AM: I’ve been playing in local bands for the past 10 years actually, and it’s been great – except when I’m breaking down equipment and loading into the car on Saturday night at 2 a.m.  That part isn’t so fun.  But I love performing, and also writing and recording.  Doing music has certainly been a good “outlet,” and a break from the grind of the law.  I think everyone needs to find at least one thing like that.  At the same time, though, music isn’t so different from what I love about my law practice.  The focus, the analysis, the problem-solving, the crafting of the work product.  When you’re writing a brief, there needs to be a rhythm to it.  For example, if you have an unusually long sentence (which sometimes can’t be avoided), the next sentence needs to be super crisp.  You need to make it interesting.  You have to be sensitive to the reader and keep them engaged as best you can.  Same with a gig.  Of course, people rarely dance when I file a brief.

MK: People should dance more often no matter the occasion!  One last question: you’re both a food connoisseur and a member of one of the PRB’s hearing panels.  Imagine: at a restaurant, you order Wagyu steak.  The chef talks you into ordering it “medium rare.”  I’m not sure what the disciplinary terms are in the culinary world. Whatever they are, should the chef be sanctioned, perhaps disbarred, for suggesting that Wagyu should be served anything but rare?

AM: Ha!  Maybe not disbarred, but at least a public reprimand.  I was happy I sent that steak back.

Thank you Andrew!


Related posts:

So far, the non-lawyerly pursuits that Wellness Wednesday has featured include:

Also, before I ever imagined this column, Elizabeth Kruska & Wesley Lawrence were kind enough to take the time to discuss their interest in horse racing, Scott Mapes talked soccer with me, and many lawyers & judges shared their marathon stories.



Wellness Wednesday: Meet Jeff Messina

I’d like to introduce you to Jeff Messina.  Jeff is a lawyer at Bergeron Paradis Fitzpatrick.  But that’s not why I’m introducing you to him.

I’m writing about Jeff because today is Wellness Wednesday!

I like to use the Wellness Wednesday posts to introduce you to members of the legal profession who make sure to make time for non-legal, non-lawyerly things. As the VBA’s Jennifer Emens-Butler says, “pursuits of happiness.”  Links to my prior posts on lawyers and their non-lawyerly interests appear at the end of today’s blog.

Back to Jeff.

He’s in a band!


Let’s get to it!

Jeff – thanks for doing this! I like writing about lawyers who make sure to make time for non-lawyerly things.  Tell us about your band & its genesis. 

I’ve been playing the guitar for about 35 years.  I started with ‘80’s metal (I picked up a guitar after hearing Randy Rhoads play Crazy Train), and in high school found Led Zeppelin, Bob Dylan, Bob Marley, The Doors, and, of course, The Grateful Dead.  So, I have played in many bands – middle school, high school, college, law school (played many nights at Dewey’s and Crossroads in SoRo), and made some money during and in between playing at small clubs in Boston, or at ski resorts in Vermont.  A big mix of venues and styles. Over the last several years I have enjoyed opening Burlington’s Jazzfest sitting in with Jenni Johnson at Leunig’s.  This current group is a four-piece offshoot of a previous five-piece GD cover band.  Regrettably, that one dissolved due to “creative differences.” (Other musicians will know what that means.) However, the bassist, keyboard player, and I moved on and reformed with a new drummer.  We play a lot of Grateful Dead, but not exclusively that material, which our name suggests: Dead Not Dead. According to our YouTube posts, we are a “Live, improvising, respectful, well-schooled rock band presenting tasteful Dead, and JGB -style not-Dead.”  What else is there?

Very interesting!  I’m struck by “creative differences.”  Maybe because this is an ethics blog that I should relate to the Rules of Professional Conduct. You’ve practiced (I think) in the family and criminal courts.  Lawyers in each practice area often contact me with inquiries on Rule 1.16 and withdrawal.  Any corollaries between the original 5-piece band’s break-up and the “irreconcilable differences” that often result in a motion to withdraw from representing a client? 

I’ve done some RFA work in the Family Division only as they relate to corresponding matters in the Criminal Division. Otherwise, I stay FAR away from the Family Division!!

In this case, I think the corollary to the Rules would be Rule 1.16(b)(4) – where at least one other member “insists upon taking action that [I] consider() repugnant or with which [I] ha[ve] a fundamental disagreement.”  Additionally, 1.16(b)(7) covers the rest because there was ample “other good cause for withdrawal…”

Good answer! Sounds like a conflict.  Conflicts of interests are tricky for lawyers. I imagine they can be tricky in a band too.  Creative conflicts over how to play a particular song; maybe even something as seemingly simple as the order of the set list at each gig.  Anything in your background as a lawyer that helps you to deal with any conflicts that arise within the band?

Interesting that you ask.  Yes, there are a lot of conflicts in a band: what to play; how to play it; when to play it; where to play; when to practice; who writes the set list; what’s on the set list – just to name a few! One significant reason that the band fell apart was my eventual reluctance to need to use my skills as an attorney to deal with band conflicts.  Lawyers have a very stressful, highly analytical, mainly left-brained job.  Frankly, I’m that way and a whole-bunch-of-Type-A in my natural state.  So, one of the reasons I have always played is that it allows me to settle into my right-brain. I’ve been doing it so long I act on instinct. To this day it is one of the few things that I don’t have to think about while I do it.   Music is my deep breath, my exhale; my meditation, if you will.  As you can imagine, then, when I was forced to act more mediator than meditator, it began to negate the very reason I was there – allowing me to decompress.  Playing for me is like taking my electrically-frazzled brain out and submersing it into calm blue water.  Ahhh…..  That stopped happening.  Herding cats is difficult.  Herding musicians is something else entirely.

The catch here is that attorneys are generally disinterested third parties in disputes.  That’s nearly impossible when it’s your band, because whether or not the specific issue matters to you, the outcome likely will.  So, I would go into “lawyer mode” and listen to the complaints, see where people agree and disagree, or try to interpret what one member is saying if another doesn’t get it.  Then, I would try to direct the conflict to facilitate the ultimate outcome, which usually most members are on the same page for, even if they don’t realize it.  And that’s the key – reading the personalities and finding the common ground, if any. But, it’s not the key if you just did it for 9 hours before you got to practice!

Speaking of practice . . . I preach competence.  A comment to Rule 1.1 says that the duty includes maintaining the skill necessary to provide competent representation.  In other words, CLE.  What’s the musical equivalent of maintaining competence? Do you have time to practice?  Or, are you able to show up at a gig and put on the show?

Practice; that’s the equivalent. But not just practicing what you already know. Learning new songs is equally important.  New songs challenge you – maybe not an individual, but the group as a whole. As an added benefit, sometimes you learn a trick or technique from a new song that can find its way into something you’ve played a thousand times.  That’s fun when that happens and it breathes new life into something that may feel rote.  Of course, it makes it easy to accept a last-minute gig opportunity if you’ve been playing with the same group of people for a while and have some well-established songs in your collective back pocket, but that is a fun thing to be able to pull off — it’s not a recipe for success.  Practice.

We generally practice weekly.  No, I don’t have the time, but I find it because this is one thing I do for me.  I’m also fortunate to own a lot of guitars, so there is one within reach wherever I am at home, and always one in the office.

I’m glad you find the time.  I’ve blogged on making time for what matters.  And music being your meditation really gets at the heart of attorney wellness. It’s fantastic that you have that outlet.

Which gets me to this:  your answers have touched on it, but do you feel like the band helps keep you grounded? Or, maybe stated differently, are you a better (or fresher) lawyer because you have an outside interest?

 I am a better lawyer because of the outside interest.  First – and this is the self-preservation aspect – it allows me to blow off steam, decompress, or whatever other applicable phrase captures the sentiment.  Then I am able to be more present and focused on client matters.  I was told early in my career by Bob Rachlin that I have to take care of myself to be able to take care of my clients.  I listened.

Outside interests are also a good icebreaker for initial meetings or tense circumstances.  Lawyers tend to see people at some of the worst times in their lives.  They just got arrested, they just got sued, lost their job, whatever.  Maybe they don’t understand the legal circumstance they find themselves in. That means they’re scared, angry, sad – the whole range of human emotion – and sometimes talking about anything other than what they are there to discuss helps them get comfortable enough to start getting into the substantive issues. Connecting on outside interests like music, vacation spots, cars, how horribly frustrating golf is, helps build trust; and trust facilitates candor.

Truth!  Bob’s a wise man who was ahead of the curve on this issue.

 Ok.  Nobody goes to law school because they’re looking for a career in trust account management.  But it’s essential.  Similarly, I’m guessing you didn’t get into music to haggle with club owners or haul equipment to & from your truck. But each is essential.  Any comparisons between law office management & band management? You know, the non-glamorous aspects of each that people almost never consider?

Like anything, you first determine your goals.  What kind of a band do you want to be – cover band or original work? (Boutique firm or JonesDay?) Get together to jam or actually try and play out?  Seems silly, but if you don’t know that, you’re not going to get together more than a handful of times before it falls apart.  Then, assuming something starts to come of the practices, is there a leadership hierarchy or is everyone on the same footing. (Partners, Associates, Staff?)  Also, a band needs equipment – speakers, P.A., microphones, etc. How much are we investing in the band, and to what amount – who owns the gear?  Also, putting aside the copyright issues (equity stake?) of song writing, how do we get gigs?  Is everyone out there trying, or is one or more persons better suited to do it? (Managing Director?)  In my experience, a band, perhaps like office management (of any kind) sees about 10% of the players doing about 80% of the metaphorical – and perhaps literal – lifting.

Well, when it comes to legal ethics, you’ve done some heavy lifting.  You often appear on the #fiveforfriday Honor Roll.  So does noted Dead Head, and Vermont attorney, Keith Kasper.  Keith has a great story related to where he was & what he was doing when he learned Jerry Garcia died.  What’s yours?

 I had just seen The Boys in High Gate about a month before the news and was working as a kitchen manager at a place called The Country Creemee in Weathersfield, VT. It’s a grease and sugar Mecca – burgers, fried clams, ice cream – all outdoor seating.  The perfect place for an early twenty-something to work, make some money, and meet girls.  Perfect. Anyway, I was doing prep and the news came over the radio.  Everyone there knew I was a Head and they just looked at me.  I was shocked. Speechless. I don’t think it’s still completely registered.

 Favorite song by a band other than the Dead that you cover:

Tough question because so much depends on the vibe at the time. If I have to pick only one, though, I have to say Small Axe by Bob Marley – we do it a bit more rock than the original, but certainly pay appropriate homage to The Lion.

 Favorite Dead song to play:

To quote from one of your favorite movies: “It’s a b***s**** question. It’s impossible to answer….It is a trick question.”

I love it!  This blog will always honor Mona Lisa Vito.

The Dead song most audiences clamor for as an encore:

 FreeBird!!! Just kidding. Sort of.  We do hear that a lot – there’s one in just about every crowd.  Once again, though, there’s not one song – not “the” song.  More often than not, however, it’s either Althea, Help/Slip/Franklins, Scarlet/Fire, or Brokedown Palace.

Last question:

Mr. Messina: do you ever play any songs by Loggins & Messina?

Ha!  I’m asked that often.  Out of principle, no.

Like the others, great answer!  Thanks Jeff!


Related posts:

So far, the non-lawyerly pursuits that Wellness Wednesday has featured include:

Also, before I ever imagined this column, Elizabeth Kruska & Wesley Lawrence were kind enough to take the time to discuss their interest in horse racing, Scott Mapes talked soccer with me, and many lawyers & judges shared their marathon stories.


Wellness Wednesday: an action plan

On March 3, 2016, I posted my first blog on attorney wellness: Lawyers Helping Lawyers.  Since, I’ve raised the issue as often as possible on this blog and at continuing legal education seminars.  Today, I’m pleased to report that the Vermont Commission on the Well-Being of the Legal Profession recently issued its State Action Plan.

The Vermont Supreme Court created the Commission in response to a report from the National Task Force on Lawyer Well-Being.  That report, The Path to Well-Being: Practical Recommendations for Positive Change, made a series of recommendations in response to a study that found staggering rates of behavioral health issues among lawyers.  Relevant to my job as bar counsel, the national report noted:

  • “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.”

Competence is the first professional duty set out in the Rules of Professional Conduct.

Again, Vermont’s state action plan is here.  When you have time, give it a read.  Here’s the concluding paragraph from the introduction:

  • “Our profession has a duty to deliver competent legal and judicial services that will serve to uphold the integrity of the justice system. We recognize that the recommendations that follow may impose costs on the profession. We are certain, however, that the benefits of these proposals outweigh the modest cost of implementing them. Neglecting the truths of the national report that issued and its focus on the elevated risks for mental illness and substance abuse will, we believe, impose greater, more damaging costs—both on our profession, the public and its confidence in the rule of law. We hope that these proposals will be recognized as responsibilities fundamental to the privilege of practicing law.”

I agree 100%  We cannot neglect the issue.  As a profession, we must follow-up on the action items.  We cannot congratulate ourselves on the Commission’s fantastic work only to relegate the plan to the digital equivalent of a shelf where it collects electronic dust until that long-off day when someone finds an archived version and says “Wow.  Great ideas. I wonder what ever became of them?”


If you’re new to this topic, here are my various posts:




Advocacy, Decorum and Grover

Happy New Year!

Some of you might not have found yourselves in the happiest of moods when today dawned.  That’s ok.  This too shall pass and, anyway, it’s already Wednesday.

Still, remember: don’t let the post-holiday return to work deprive you of your professionalism.

The Rules of Professional Conduct don’t require lawyers to be polite to each other.  The only rule that addresses decorum is Rule 3.5(d).  It makes it professional misconduct for a lawyer to “engage in undignified or discourteous conduct which is degrading or disrupting to a tribunal.”

Fortunately, the record isn’t littered with violations of the rule.  Over the past 30 years, there have been only 5 instances in which a lawyer was sanctioned for violating Rule 3.5(d).

Still, rule or not, my opinion is that it’s a good idea not to be a jerk.  In fact, I think it’s such a good idea that I once wrote an entire blog on it:  Don’t Be a Jerk.  It was the first post in my series on David Hoffman’s  Fifty Resolutions in Regard to Professional Deportment. 

In the post, I cited to the Vermont Bar Association’s Guidelines for Professional Courtesy.  I encourage you to read them.  The last is my favorite:

  • “Effective advocacy does not require antagonistic or obnoxious behavior. Lawyers should adhere to the higher standard of conduct which judges, fellow attorneys, clients, and the public may rightfully expect.”

While I’ve no stats to back up this claim, my sense is that such behavior contributes to an overall lack of wellness in the profession.  And, since today is Wednesday, here’s a tip: do your part for attorney wellness by not being a jerk.

Nevertheless, as the January doldrums set in, some of you might find yourself dealing with a lawyer who, for whatever reason, acts like an antagonistic, obnoxious jerk.

Remember: you can’t control how that lawyer acts, but you can absolutely control how you react to that lawyer.

Finally, I’m loathe to miss a chance to weigh in on the great debates.  Which brings me to this post’s headline: Advocacy, Decorum and Grover.


What on earth could a muppet have to do with Rule 3.5(d)?

Earlier in this post, I mentioned lawyers who were sanctioned for violating Rule 3.5(d). Two of them were actually sanctioned for violating its predecessor in the old Code of Professional Responsibility:

  • a defense attorney for telling a prosecutor “go  ____  yourself;” and,
  • a lawyer who told a witness “get the _____ away from here.

If you haven’t heard about the Grover controversy, several media outlets have covered it, including People, Screen Rant, and TMZ.

I’m willing to listen to arguments to the contrary.  However, my initial reaction is that Grover violated the muppet equivalent of Rule 3.5(d).


Wellness Wednesday: STOP IT!

For those of you who remember Wellness Wednesday: EnoughI’m guessing that today’s post will be different than what you might expect from the headline.

For me, sometimes “wellness” is as simple as a smile or a laugh. And today’s story gives me both.

As reported by the ABA Journal, Houston Chronicle, Above the Law and other outlets, Judge Vanessa Gilmore issued a fantastic order this week.  Here’s the first line:

Whiny Lawyers

For those of you who skip straight to the end upon receiving a much-anticipated court order, here are the final few lines:

Whiny Lawyers 2

Not surprisingly, the order issued in response to a discovery dispute.  I can’t tell you how many complaints & inquiries I’ve received that are remarkably similar.

Judge Gilmore: I feel your pain!! Thank you for contributing to my wellness this week! Hopefully your order deters behavior that, in my view, is a gateway to the stress & frustration that detracts from wellness and drives good lawyers from the profession.

Oh, and on a more serious note, here’s to TJ Donovan, Rob McDougall and the lawyers & staff in the Attorney General’s Environmental Protection Division.  Yesterday, they took time to contribute to the wellness of others by volunteering at the Good Samaritan Haven in Barre.

Thank you TJ, Rob, and team!

Image may contain: 10 people, people smiling, people standing



Wellness Wednesday: “N O” is “O K”

The holiday season is upon us and, with it, invitations to parties & gatherings.   Enjoy them!  More importantly, let others enjoy them as well . . . on their own terms.

Those who know me know that I’m all about holiday cheer.  Actually, that’s not entirely true.  It’s paltering.  Rather, it’d be more accurate to say that those who know me know that I don’t limit my cheer to the holidays.

But remember this: it is perfectly okay for a lawyer at your firm’s holiday party to choose not to drink.

I first wrote about this two years ago in my post No Objection to “No, thank you.”  It bears repeating.

As bar counsel, I’ve dealt with lawyers who’ve told me that one of the keys to their wellness is to avoid situations that will tempt them to make, if you will, “unwell decisions.”  For example, some avoid events that include alcohol.

I totally get it.

But may of them want to be social.  They want to go to bar events or holiday parties.  They want to see people, chat, have fun.  The interaction helps their wellness.

What they don’t want is to deal with comments like “what? did you quit for the holidays? nobody likes a quitter!!”

I know this is preachy.  But, my message is this: when someone says “no” to a drink at a holiday party?  Don’t object.

“N O” is “O K.”



Wellness Wednesday: Family Time

It warms the cockles of my heart to use the word cockles in a sentence.

Whoops, what I meant was that it warms the cockles of my heart to hear from lawyers on wellness!

I’ve often encouraged lawyers to find time for non-lawyerly pursuits that tend to improve emotional & physical health. One such pursuit: spending time with family.

I can hear you now:  “Mike! Family??  Surely you can’t be serious!  Aren’t the holidays enough?”

I am serious. And don’t call me Shirley.

Last week, the Vermont Commission on the Well-Being of the Legal Profession met.  The legal employers committee presented an update on its work.  The update include mention of different ways to encourage firms to foster workplace environments that allow employees to tend to their emotional and personal well-being.  Or, at the very least, environs that don’t penalize or stigmatize proactive wellness.  A thought that emerged: what if lawyers left work a bit earlier every now & then to spend time with family?

The next day, I posted a blog about Judge McCaffrey.  Yes, he was committed to helping others.  But he was also extraordinarily dedicated to his family.  It made me think.

Yes, I’m all about lawyers finding non-lawyerly hobbies.  Running, yoga, whittling, a book club, an instrument . . . you get the picture.  But, don’t forget family.  The hour you spend with family might not be billable, but it’s worth far more than any hour you’ll ever bill.

On that note, a big thank you to Chris Pelkey and Nicole Killoran for sharing family moments!

Chris is an attorney at Valsangiacomo Detora & McQuesten.  An example of  his ability to persuade? Bucking the Tide and somehow convincing Rusty to hire a U-32 kid.

Anyhow, Chris and his wife, Kristin, ran the Heady Trotter 4-Miler. I failed to notice and, as a result, failed to include Chris in my post that featured pictures of lawyers and our Heady Trotter hats.

No, I don’t have a picture of Chris in his hat. Likely because he never gets to wear it!

Chris reports that their kids have commandeered the hats he & Kristin received. Indeed, if any of you spotted a teenage mutant ninja turtle sporting a Heady Trotter hat on the Halloween Express, it was Chris’s kid!  Talk about family wellness!


Nicole is a professor at Vermont Law School.  She’s also a regular member of this blog’s #fiveforfriday legal ethics honor roll.

Nicole and her family make time for what matters by finding adventures on the rivers, meadows, and woods that surround their house.  Per Nicole, their adventures include “bugs, turkeys,martens, hawks, crows, deer, wildflowers, and blackberries by the bundle.”

That’s perfect!  And perfect proof that wellness need not be complicated. Here are Nicole and her kids on one of their adventures:



I love the pictures that Chris & Nicole sent.  Each reflects time well spent.  And time well spent is what wellness is all about.