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plan to the digital equivalent of a shelf where it collects electronic dust until that long-off day when someone finds an archived version and says “Wow.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.

Wellness Wednesday: Judge McCaffrey

Judge McCaffrey died Saturday.  I did not know him well and feel disrespectful if this is considered as any sort of eulogy. However, Judge McCaffrey exemplified so much  of what I often blog about – including wellness – that his impact deserves mention here today.

One might think my initial exposure to Judge McCaffrey came through the law.  One would be wrong.

As I’ve mentioned, basketball was a key part of my childhood.  Not only playing it, but the stories that my parents shared.

My dad steeped me in the history of the great high school players who’d gone through Cathedral, Rice, and Burlington.  But his favorite stories were of the legendary teams & players at St. Michael’s in the late 50’s and early 60’s.

Frank McCaffrey was one of those players.  He played on the famous Purple Knight 1958 squad that advanced all the way to the national championship game in Evansville.

Many years later, I attended the Vermont high school basketball Division 1 semi-finals at UVM.  I was captivated by a player from Rutland who, to this day, is the most exciting player I’ve ever seen play in Vermont: Jim McCaffrey, Judge McCaffrey’s son.

Even later, but before I became a lawyer, I met Judge McCaffrey’s wife, Rita, through my mom.  They worked together in politics.

Yet, while I knew of the family prior to entering the law, it’s what I’ve learned of Judge McCaffrey since that spurs this post.

I’ve often blogged about wellness and helping others. Judge McCaffrey made a life of doing both.

Judge McCaffrey and his wife established Vermont’s first Dismas House, a program whose mission is to help reintegrate those convicted of crimes into the community.  He was also instrumental in planting the seed from which the state’s treatment courts first sprouted.

Dismas House.  Treatment courts.  Not only helping others, but helping others to be well.

You can read more about Judge McCaffrey’s life and work in both this tribute in The Rutland Herald, as well as in his obituary.

Some of the words & quotes are striking.

From the Herald article:

  • “A long-serving Vermont judge, McCaffrey is most recently known for helping . . .”
  • “He believed God put us on Earth to serve others and he lived that . . .”
  • “Judge Corsones said the drug court seemed like a perfect fit for McCaffrey because it was full of people who needed someone to listen. It also, Corsones said, gave McCaffrey another chance to help people.”

From his obituary:

  • “He will be remembered by many prisoners, former prisoners, and those struggling with the demon of addiction who knew he believed in their ability to recover. He gave them not only hope, but also the tools they needed to find their way to a better life.”

I’ve often urged readers to win their 3-feet of influence.  I’ve also used the starfish story several times in blog posts and at CLEs. It goes like this:

“One day, an old man was walking along a beach that was littered with thousands of starfish that had been washed ashore by the high tide. As he walked he came upon a young boy who was eagerly throwing the starfish back into the ocean, one by one.

Puzzled, the man looked at the boy and asked what he was doing. Without looking up from his task, the boy simply replied, “I’m saving these starfish, Sir”.

The old man chuckled aloud, “Son, there are thousands of starfish and only one of you. What difference can you make?”

The boy picked up a starfish, gently tossed it into the water and turning to the man, said,

“I made a difference to that one!”

Judge McCaffrey never stopped winning this 3 feet of influence. In the process, he helped return countless starfish to the water – to wellness.

Judge McCaffrey made a difference by practicing wellness and helping others achieve it.  If he is emulated even a fraction as much as he will be missed, his 3-feet of influence will continue to spread.

Let’s make sure that it does.

Francis Bernard McCaffrey Jr. Obituary


Wellness Wednesday

Another week, more examples of lawyers engaging in proactive wellness!

But, first, happy birthday Jennifer Emens-Butler!  Jennifer is the VBA’s Director of Communication and Education and has done a fantastic job communicating to and educating the bar on many topics, including lawyer wellness.

Jennifer – may your birthday and the next year include the pursuit and realization of happiness!

Sunday marked the 1st Annual Heady Trotter 4-Miler.  I’ll get this out of the way right now:  yes, the race was at a brewery.  For any of you who think that running a race that’s sponsored by a brewery is the antithesis of attorney wellness, I submit that you have no idea what we’re talking about when we talk about wellness.

Anyhow, Sunday dawned grey & chilly in Stowe, but that didn’t deter lawyers from getting their wellness on.  Not only did I spot a few on the course, I tracked them down and forced them to pose for pictures in the fantastic hats that runners received as swag.

Samantha Henchen let me barge into her office for a picture with our plaques recognizing us as “founding runners.”  Next: I’ll get her law partner, and my former foe on the basketball courts, out there for a race with us.


Kevin Lumpkin is a fellow member of the VBA’s Pro Bono Committee.  We loved our hats so much that we wore them to Judge Toor’s bench/bar meeting:


Finally, at least Sunday’s race was flat.  The first time I ran 4 miles with Jordana Levine, it was straight up the Killington access road!

IMG_0980Why she didn’t get a hat for Igor is beyond me and likely a violation of some sort of rule!


If you ran and I missed you and your hat, send me a pic!

Want me to get a picture of you doing something active, relaxing, non-lawyerly or, preferably, all 3?  Let me know and I’ll show up to document it for a future edition of Wellness Wednesday.


Wellness Wednesday: Jennifer O’Connor

Welcome to Wednesday!

So far, Wellness Wednesday has featured:

This week, I’d like to introduce Jennifer O’Connor.

Jennifer is a 3L at Vermont Law School.  At VLS, Jennifer chairs the Mental Health Committee.  The Committee is doing great work.  Per Jennifer, the Committee’s

  • “mission is to lay the groundwork to strike the stigma of mental health issues.  Our goal is to provide services and resources to students to maximize their mental health throughout the academic year.”

In addition, Jennifer is a 3L representative to the Law School Committee of the Vermont Commission on the Well-Being of the Legal Profession.  Last but not least, Jennifer is the 3L rep to the VLS Fitness Advisory Board.  In that capacity, Jennifer practices what she preaches.

Ten days ago, Jennifer finished her first running race.  And it wasn’t just any old race: it was the Chicago Marathon!

IMG_3624 (1)

In the process, she conquered weather conditions – rain & wind – that I’m sure exacerbated the mental & physical challenges that marathoners face even in the best of weather.


Jennifer ran Chicago on behalf of a friend who was recently diagnosed with brain cancer.  Jennifer used the marathon to raise money for the American Brain Tumor Association.

Not only does she practice wellness, Jennifer chooses to help.

For all she does for wellness in the profession, Jennifer is this week’s focus of Wellness Wednesday.

Thank you Jennifer!  You’re doing great stuff!


Wellness Wednesday: The Lock Screen & National Mental Health Day for Law Students

Welcome to Wellness Wednesday!

Two points today.

First, nothing makes me weller than the Red Sox beating the Yankees.

Actually, wait, that’s not correct.  What I meant to write is that nothing makes me weller than the Red Sox beating the Yankees in a playoff series!

(Yes, I know “weller” isn’t a word – blogger’s license makes me well as well.)

My blog on how superstitious I am about the Red Sox is here.  Last week, Suzanne Lewis, a very good friend who I met in law school texted from Fishers, Indiana.  Fishers is the mid-west headquarters of Ethical Grounds.  Friday, the opening night of the Sox-Yanks series, Suz texted “Go Sox!” to me, her husband, and their son (my godson Sammy) along with a picture of a Neil Diamond album cover  (The Sox play Neil’s Sweet Caroline over the loudspeakers in the middle of every 8th inning at Fenway.)

Upon receiving the text, my superstition gene went into overdrive.

I didn’t reply. That would have been bad luck.  But, the next morning,  after the Sox had hung on to win Friday night’s game, I texted Suz that superstition dictated that I make the picture my lock screen.  So I did.  And then Monday night & last night happened.

Go Sox indeed!

Neil Diamond

My second point:

To my readers at VLS, today is National Mental Health Day for Law Students.  Check out the link – it’s full of great resources.  And, as I said when I spoke at the character & fitness forum a last month, take care of yourselves! Make wellness a habit that carries over into your careers.

To paraphrase Neil, habitual wellness would be:

so good, so good, so good!

Wellness Wednesday: on ponds, puffery & paltering.

It’s Wellness Wednesday!

Remember – wellness is about much more than the staggering rates at which lawyers are afflicted with behavioral health problems.  Wellness is also about taking action to be well.  For instance, making time for what matters, taking 6-minutes a day for yourself, and making wellness a habit.

Last week, I debuted “Wellness Wednesday” with this post congratulating the lawyers who ran in the Island Vines 10K. This week: some thoughts on the ethics of puffery & paltering, but only after a big thank you to Jennifer Emens-Butler!

Jennifer is the VBA’s Director of Communication and Education. She’s a staunch ally in the quest to encourage lawyers to be well.  Among other things, Jennifer pens Pursuits of Happiness, a regular column in the VBA Journal, and she is commited to including wellness components at the VBA’s conferences & meetings.

For example, at last weeks’ annual meeting in Manchester, Jennifer organized an early morning walk on the trails at the Equinox Preserve.  Not even a little rain could keep Jennifer & me from starting the day with wellness!


Now, the ethics part of this post: paltering.

The night before the morning walk, I had the privilege of joining Andrew Manitsky and Tad Powers on a CLE panel.  Our topic was puffery and the ethics of negotiation.

One of my favorite parts of the program (we’ve presented it before) is a piece that Andrew does on “paltering.”  A person palters by actively using the truth to deceive.  As this piece in the Washington Post points out, many consider “the behavior of someone who paltered in a negotiation as being just as unethical or untrustworthy as the person who outright lied with a known falsehood.”

Remember: when representing a client, Rule 4.1 prohibits misrepresentations of fact or law to a third person.  Per Comment [1], “[m]isrepresentations can also occur by  partially true or misleading statements or omissions that are the equivalent of affirmative false statements.”

So, what’s this got to do with Wellness Wednesday? I’m glad you asked.

On our walk, Jennifer & I set out on the Pond Trail.  We never found the pond.  Either it evaporated or it’s so small as to be indistinguishable from the rain puddles we encountered on the trail.

Later, throughout the morning at the conference, several people asked if I’d hiked to the pond.  Normally I proudly display my Chittenden County roots. However, not wanting to admit that a kid born & raised by the airport couldn’t find a damn pond in Southern Vermont – even while hiking on “the pond trail” – I replied:

“we took the Pond Trail. It was terrific.”

True statements indeed.  But, I paltered.

Enjoy Wellness Wednesday! Do something for yourself, even if it’s only for 6 minutes!