Monday Morning Answers #172

Good Monday morning!

Friday’s questions are here.   I finished the 17.2 challenge.  Originally, my plan was to take it easy in the 1 mile and 5K.  Not just to save myself for the half marathon, but to do well enough in the half to have a shot at finishing with a combined time in the top 3 for my age group.   I thought that approach would give me a chance.

However, when I woke up yesterday, I decided to apply the theme of Friday’s column, and not live life going through the motions. So, I went for it in both the 1 mile and the 5K.  It worked, as I ran very good times (for me) and finished 2nd and 4th in my age group.  Alas, I faded in the half marathon, painfully shuffling up and down Rockport’s hills to the worst time I’ve ever run for that distance.

But as I wrote Friday, it’s the process not the outcome.  Would the half have gone better had I taken it easy in the 1 mile and the 5K?  Undoubtedly.  But what did I have to lose? I went for it.  I tried to win the combined for my age group.  I didn’t.*  But that’s ok.

Because too often I settle for “middle of the pack,” writing it off as  “the smart approach.”  Not this weekend.  Sure, I stumbled, and I could’ve done better.  But, for the first time in a long time, I was in the arena, toiling in dust and sweat.  And it felt good not to be timid.

Also, I wasn’t the only Vermont lawyer in the arena.  I bumped into Bonnie Badgewick.  Bonnie also completed all 3 races in the Triple Threat Challenge.  Great job Bonnie!

IMG_3041

*Updated at 4:12 PMwhen I left the race, I didn’t think I’d finished in the top 3 in my age group in the “Combined” category.  Due to a time-keeping snafu that the race director informed me he had corrected, it turns out that I actually won my age group.  Still, my message stands.

Honor Roll

  • Room 1009 (pronounced Ten Oh 9)
  • Karen Allen
  • Matt AndersonPratt Vreeland Kennelly Martin & White
  • Alberto Bernabe, Professor, John Marshall Law School
  • Honorable John M. Conroy, United States Magistrate Judge, District of Vermont
  • Erin GilmoreRyan Smith & Carbine
  • Laura Gorsky, Esq.
  • Bob Grundstein, Esq.
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Tom LittleLittle & Cicchetti
  • John LeddyMcNeil, Leddy, & Sheahan
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Lon McClintock, Esq.
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Jeff Messina, Bergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Jim Runcie, Ouimette & Runcie

Answers

Question 1

Fill in the blank.  (It’s 1 word).

By rule, a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Rule 1.4(b).

Question 2

Attorney called me with an ethics inquiry.  I listed, then said “a comment to the rule makes it clear that the rule doesn’t apply to an organization’s former constituents.”

Given my statement, it is most likely that Attorney called me to discuss the rule that deals with what topic?

Contacting the former employees of a represented organization.  See, Rule 4.2, Comment 7.

Question 3

An attorney called me with an inquiry.  I listened.  To clarify, I asked the following question:

  • “Ok.  I’m not clear.  Will someone other than the person committing the act be harmed?”

Based upon my question, what general ethics topic did the attorney call me to discuss?

Disclosing confidential information relating to the representation of the client. 

More specifically, when a lawyer reasonably believes that a client or another will commit a criminal act that is likely to result in the death of or substantial bodily harm to someone other than the person committing the act, the lawyer must disclose.  Rule 1.6(b)(1).

If the act is likely to result in the death of or substantial bodily harm to the actor, the lawyer may disclose.  Rule 1.6(c)(1).

Question 4

What am I?

  • I can be a tool to help provide access to legal services for those who might not be able to afford a lawyer.
  • I am specifically authorized by Rules for Family Proceedings and the Rules of Civil Procedure.
  • Per Vermont Rules of Professional Conduct, I am permitted if I am reasonable under the circumstances and the client gives informed consent.

Again, what am I?

I am a limited-scope representation.  See, Rule 1.2(c).

Question 5 (and bonus)

Having spent some time at the bar exam this week . . .

In 2002, one of Hollywood’s megastars was nominated for the Golden Globe for Best Actor for his work playing a character named Frank Abergnale, Jr.  The movie also starred Tom Hanks as an FBI agent named Carl.

Here’s an exchange from the movie:

Carl: “How’d you do it Frank? How did you cheat on the bar exam in Louisiana?

Frank: “I didn’t cheat. I studied for two week and I passed.”     

Name the movie and the actor who played Frank.

Catch Me If You Can & Leonardo DiCaprio

 

 

Five for Friday #172

Welcome to #172!

It’s been a while since I’ve been able to tie the quiz number to the intro.  I guess that’s what happens when you get into the 100s.  Yet, the stars aligned today.

I took up running in 2006.  Back then, my goal was to finish one leg of the relay in the Vermont City Marathon.  I accomplished my goal, completing my 5.2 mile leg.

From there, my goals evolved: finish a half-marathon, finish a marathon, qualify for Boston.  All sorts of new challenges that not only drove me, but that fed my love for running.

This year, my running goal is to complete at least one half-marathon in 10 different states or provinces.  On Sunday, I’m running a half-marathon in Rockport, MA.  It’ll be my 6th state.  I’m looking forward to it more than I’ve looked forward to the past few that I’ve run.

The first 3 – Tennessee, Vermont, Indiana – were a ton of fun. The 10-state goal was still new & exciting, and my times improved in each race.

Then, in early June, I hit a lull.  Summer and its amenities distracted me from training as often or as hard.  Yes, I finished half-marathons in Maine and Illinois. Yes, each trip was fantastic.  The races, however, weren’t fun or exciting.  Each was a grind, running just to tick off another state on the slog to 10.  I felt like I was going through the motions. I didn’t love running.

So why do I think Sunday will be different?  Because I’ve added something new to the mix.

I entered what’s called The Triple Threat Challenge:

  • 8:00 AM – 1-mile race
  • 8:30 AM – 5K
  • 9:30 AM – Half Marathon

I’ve never run an event like this.  While it presents a new challenge, Sunday will also bring me back to why I took up running: the challenge of competing against myself to accomplish something that I’ve not done before.

I think it happens to all of us.  Without really noticing it, “fresh and exciting” becomes “the same old, same old.”  Indeed, the me that existed in 2007 never would’ve envisioned being bored during a half marathon or slogging through a run for no other reason than to say I finished.  Rather, I embraced and enjoyed the challenge of finishing.  I look forward to doing so again on Sunday.  The challenge has me excited.

Don’t live life going through the motions. Whatever it is that you don’t enjoy quite as much as you used to, find a way to make it as exciting and challenging as it was when you first started doing it.  That’s part of well-being.

Which reminds me: if you’re a lawyer whose practice has become routine, contact Mary Ashcroft.  Mary is the VBA’s Legal Access Coordinator and will be more than happy to assign you a pro or low bono case that’ll bring you back to what made you excited to be a lawyer in the first place.

Oh, the tie-in to the quiz number?  It’s week 172.  The total miles in the Triple Threat Challenge?

  • 1 mile = 1 mile
  • 5K = 3.1 miles
  • Half Marathon = 13.1 miles

17.2

Onto the quiz!

Rules

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception – but one that is loosely enforced – #5 (“loosely” = “aspirational”)
  • 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
  • Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

Fill in the blank.  (It’s 1 word).

By rule, a lawyer shall __________ a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Question 2

Attorney called me with an ethics inquiry.  I listed, then said “a comment to the rule makes it clear that the rule doesn’t apply to an organization’s former constituents.”

Given my statement, it is most likely that Attorney called me to discuss the rule that deals with what topic?

Question 3

An attorney called me with an inquiry.  I listened.  To clarify, I asked the following question:

  • “Ok.  I’m not clear.  Will someone other than the person committing the act be harmed?”

Based upon my question, what general ethics topic did the attorney call me to discuss?

Question 4

What am I?

  • I can be a tool to help provide access to legal services for those who might not be able to afford a lawyer.
  • I am specifically authorized by Rules for Family Proceedings and the Rules of Civil Procedure.
  • Per Vermont Rules of Professional Conduct, I am permitted if I am reasonable under the circumstances and the client gives informed consent.

Again, what am I?

Question 5 (and bonus)

Having spent some time at the bar exam this week . . .

In 2002, one of Hollywood’s megastars was nominated for the Golden Globe for Best Actor for his work playing a character named Frank Abergnale, Jr.  The movie also starred Tom Hanks as an FBI agent named Carl.

Here’s an exchange from the movie:

Carl: “How’d you do it Frank? How did you cheat on the bar exam in Louisiana?

Frank: “I didn’t cheat. I studied for two week and I passed.”     

Name the movie and the actor who played Frank.

Safeguarding Client Data: Don’t Forget Email Safety.

Like Starship built a city on rock ‘n roll, I built this blog on tech competence.  More specifically, on a phrase that, while once my mantra, I’ve not typed in ages:

competence includes tech competence.

The story of a lawyer’s duty of tech competence includes many chapters.  Perhaps the most important is the chapter on the duty to take reasonable precautions against the unauthorized access to or inadvertent disclosure of information related to the representation of a client.  Given the feedback I’ve received here and at CLEs, lawyers seem to associate that duty most closely with cloud storage.

Yes, protecting client data this transmitted or stored electronically is important. So important that I’ve run my post The Cloud: What Are Reasonable Precautions? four different times.

But don’t forget e-mail security.  And, within the topic of e-mail security, don’t get so pre-occupied with whether there’s a duty to encrypt that you forget about some of the simple things.  For instance, whether a lawyer has a duty to disable autocomplete.

Almost two years ago, I posted Client Confidences: Disable Autocomplete?  Two “real-life” events inspired the post.

The first was a story that I repeated often on this spring’s CLE circuit.  As reported by Above The Law, it’s the story of a lawyer who meant to send a message to other lawyers in the firm, but mistakenly sent it to a Wall State Journal reporter in what appears to have been an autocomplete snafu.

The second hit closer to home.  Thanks to autocomplete, an email that a lawyer intended to send to me mistakenly went to Judge Michael Kainen.

Catherine Sanders Reach runs the North Carolina Bar Association’s Center for Practice Management.  Earlier this week, Catherine posted Make Email Less Dangerous.  It’s a fantastic piece on protecting client data when using email.  Catherine’s tips include instructions on:

  • disabling autocomplete
  • using “delay send” and “undo send”
  • Microsoft Add-Ins that protect against sending to the wrong recipient
  • keeping internal emails internal

I recommend Catherine’s blog.

After all, and to tie this back to the intro, better to spend some time with Catherine’s tips than to find yourself Knee Deep in the Hoopla that will certainly ensue if you inadvertently send confidential information to an unintended recipient.

Yes.  I’m quite aware that I posted a blog constructed around what some consider to be the worst song of all-time.

 

 

 

 

The bar exam, a lawyer shortage, Suits, and a few thoughts on leaked essay topics.

Vermont’s administration of the Uniform Bar Exam begins today.  76 aspiring lawyers will gather at a hotel in Burlington.  As made clear by this piece that ran on WCAX yesterday, we need a lot of them not only to pass, but to stay in Vermont.

If you weren’t aware, Vermont switched to the Uniform Bar Exam in 2016.  Today, the examinees will tackle the Multistate Performance Test and Multistate Essay Examination.  Then, tomorrow, one of the last bastions of the #2 pencil takes center stage: the Multistate Bar Examination, aka “the multiple choice.”

I went into the nuts & bolts of the Uniform Bar Exam in more details in this post.   Also, last February, I posted this Q&A with the examiners.  Finally, talk about a bizarre situation: this past weekend, California bar authorities discovered that the essay topics might have been inadvertently revealed.  So, as I blogged here, they sent an email to all examinees informing them what the essay topics would be.

I understand that there was no good solution.  Logistically, it was far too late to postpone the exam or draft new questions.  Sharing the topics with everyone was likely the best way to level the playing field.

A gut reaction might be “it’d be great to know the topics!” I’m not so sure.

For instance, my personal choice would have been to get my studying done by last Friday, then take the weekend to rest, relax, and get my mind right for the exam.  I’d likely not have had the discipline – or courage – to stick to my approach if, on Saturday, I’d learned what the essay topics would be.  Rather, I’d likely have felt compelled to study them, even if I’d already done enough preparation on each over the past few months.

And what about the examinee who takes my approach and then got off the grid for the weekend?

Also, the essays are intended to distinguish examinees from each other.  For many years, I graded bar exams.  In my experience, some were fantastic, some awful, and the vast majority in the vast middle. It’s difficult to perceive and assign a distinction between the many that are solidly average.  I wonder whether the fact that all examinees know the topics will result in essays that are even more difficult to differentiate than in a normal year.

Finally, I look forward to the day when we have a full-fledged discussion as to whether a two-day test is the best way to determine who gets a ticket to practice law.  Maybe it’s the Mike Ross in me.  Or, maybe it’s the fact that we have evidence – albeit in an infinitesimal sample size – that success (or a lack thereof) on the bar exam is not necessarily the only predictor of competence.

Image result for mike ross suits images

 

Monday Morning Answers #171

Welcome to Monday!

Friday’s questions are here.  The answers (including to last weeks’ Final Jeopardy clues) follow today’s Honor Roll.

Honor Roll

Answers

Question 1

There’s a rule that prohibits a lawyer from disclosing information related to the representation of a client.  The rule encompasses:

  • A.  more information than is covered by the attorney-client privilege.  See, Rule 1.6, Comment 3(“The confidentiality rule . . . applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever the source.)
  • B.  less information than is covered by the attorney-client privilege
  • C.  the exact same amount of information as is covered by the attorney-client privilege.
  • D.  I object to the premise of the question.  In fact, there is no such rule.

Question 2

Is the following statement true or false?

  • When a prospective client meets with but does not retain a lawyer, nothing in the Rules of Professional Conduct requires the lawyer to keep confidential the information that the prospective client shared in connection with the consultation.

FALSE.  Rule 1.18(b).

Question 3

Lawyer called me with an inquiry.  Here’s my response:

  • “By rule, you may do so, but only for the sole purpose of paying service charges or fees on the account, and only in an amount necessary for that purpose.”

Do what?

Deposit Lawyer’s (or Firm’s) own money into a client trust account.  See, Rule 1.15(b).

Question 4

With respect to testimony, which is appears in a different rule than the others?

The testimony:

  • A.  relates to an uncontested issue.
  • B.  relates to the nature and value of legal services rendered in the case.
  • C.  was offered by the lawyer’s client, was material, and the lawyer comes to know that it was false.
  • D.   Not one.  They each appear in the same rule.

A & B appear in Rule 3.7, the rule that applies when a lawyer is a witness.  C is in Rule 3.3, the rule on candor to a tribunal.

Question 5

Lionel Hutz was one of the most incompetent, unethical lawyers in the history of television.  Yet, the family at the center of one of TV’s longest running series continually hired him.

In one notable episode, Hutz sued a restaurant on behalf of a family member who was shut off despite the restaurant’s ads for an “all you can eat” seafood night.  Upon hearing the man’s story, Hutz responded “this is the most blatant case of fraudulent advertising since my case against the movie ‘The Never-Ending Story!’”

In another case, Hutz represented the man’s son after the boy had swallowed a piece of metal that was in a cereal box.  Hutz recovered $100,000 for the boy and kept $99,500 as a fee.

Earlier this year, the show was renewed for its 31st and 32nd seasons.  Yet, following Phil Hartman’s death in 1998, Hutz’s character was largely retired and hasn’t had a speaking role since.

Name the TV show.

The Simpsons. No less than THREE different readers reminded me that Hutz taught us the importance of proper punctuation.  I love my readers!

 

Image result for lionel hutz no money down

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

In case you’re interested, here are the Final Jeopardy clues that flummoxed contestants this week.  Answering them is NOT required to enter this week’s quiz. I include them only for those who might be mildly interested.

I was 2-4. I didn’t get Monday’s or Wednesday’s.

Monday

  • Category:  Landmarks
  • “David Livingstone wrote of this discovery of his, ‘Scenes so lovely must have been gazed upon by angels in their flight.’”

What is Victoria Falls?

Tuesday

  • Category: Toys & Games
  • “The prototype for this game that was introduced in 1948 was called Lexiko.”

What is Scrabble?

Wednesday

  • Category: Children’s Authors
  • “This author and illustrator who won the 1964 Caldicott Medal was dubbed ‘The Picasso of Children’s Books.”

Who is Maurice Sendak?

Thursday

  • Category: 1970’s Album Reviews
  • “Rolling Stone said this 1976 album had ‘the best & worst tendencies of L.A. situated rock’ and was an ‘unflattering portrait of the milieu.’”

What is Hotel California?

California Bar Exam Essay Topics Released — Vermont is NOT Affected.

(Updated at 1:35 PM to include the NCBE’s response)

A stunning development from California: mere days from the bar exam, it appears as if California’s essay topics were leaked.  In an attempt to ensure fairness, the State Bar of California apparently responded by sending all examinees an email disclosing the essay topics.

Please note:  California is not a Uniform Bar Exam jurisdiction.  The situation in California will NOT impact the Vermont Bar Exam or the bar exam in any UBE jurisdiction.

Here’s a tweet from the Cal State Bar’s verified account:

It was followed 17 minutes later by this tweet:

The Bar Exam Guru has been in front of this story.  On Twitter, Guru posted what is described as the email that the Cal State Bar sent to examinees:

A screenshot of the entire email is here.

Again, this impacts only the California Bar Exam.  Unlike California, Vermont is a UBE jurisdiction.  The UBE has not been compromised.  Indeed, from the verified Twitter account of the National Conference of Bar Examiners:

On the bright side, as bar counsel, I’m pleased to learn that California is testing Professional Responsibility this year.

Image result for bar exam images

 

 

Five for Friday #171

Welcome to Friday!

If you’re on vacation, stop reading now!  Wednesday’s post explains why.

If you’re still reading, I wasn’t going to post a quiz today.  I’m not much into blogging during July.  Never have been, never will be.

I am, however, into Jeopardy. Even in July, I watch nearly every night, if only to catch Final Jeopardy.

Image result for images of final jeopardy

This week, the contestants’ performance on Final Jeopardy has been nothing short of miserable.

Through 4 nights, the contestants have combined to go 3-12 on the final question.

Yikes!

Tough questions? You can decide for yourself: I’ve pasted them in below the quiz.  But it’s also possible that contestants didn’t practice.

My good readers: we shall practice! And we shall do so 1 week and 5 questions at a time.  After all, in the real world, on the horns of an ethics dilemma, 3 for 12 ain’t gonna cut it.

Therefore, as little as I like blogging in July . . .

. . . onto the quiz!

Rules

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception – but one that is loosely enforced – #5 (“loosely” = “aspirational”)
  • 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
  • Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

There’s a rule that prohibits a lawyer from disclosing information related to the representation of a client.  The rule encompasses:

  • A.  more information than is covered by the attorney-client privilege
  • B.  less information than is covered by the attorney-client privilege
  • C.  the exact same amount of information as is covered by the attorney-client privilege.
  • D.  I object to the premise of the question.  In fact, there is no such rule.

Question 2

Is the following statement true or false?

  • When a prospective client meets with but does not retain a lawyer, nothing in the Rules of Professional Conduct requires the lawyer to keep confidential the information that the prospective client shared in connection with the consultation.

Question 3

Lawyer called me with an inquiry.  Here’s my response:

  • “By rule, you may do so, but only for the sole purpose of paying service charges or fees on the account, and only in an amount necessary for that purpose.”

Do what?

Question 4

With respect to testimony, which is appears in a different rule than the others?

The testimony:

  • A.  relates to an uncontested issue.
  • B.  relates to the nature and value of legal services rendered in the case.
  • C.  was offered by the lawyer’s client, was material, and the lawyer comes to know that it was false.
  • D.   Not one.  They each appear in the same rule.

Question 5

Lionel Hutz was one of the most incompetent, unethical lawyers in the history of television.  Yet, the family at the center of one of TV’s longest running series continually hired him.

In one notable episode, Hutz sued a restaurant on behalf of a family member who was shut off despite the restaurant’s ads for an “all you can eat” seafood night.  Upon hearing the man’s story, Hutz responded “this is the most blatant case of fraudulent advertising since my case against the movie ‘The Never-Ending Story!'”

In another case, Hutz represented the man’s son after the boy had swallowed a piece of metal that was in a cereal box.  Hutz recovered $100,000 for the boy and kept $99,500 as a fee.

Earlier this year, the show was renewed for its 31st and 32nd seasons.  Yet, following Phil Hartman’s death in 1998, Hutz’s character was largely retired and hasn’t had a speaking role since.

Name the TV show.

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

In case you’re interested, here are the Final Jeopardy clues that flummoxed contestants this week.  Answering them is NOT required to enter this week’s quiz. I include them only for those who might be mildly interested.

I was 3-4. I didn’t get Wednesday’s.

Monday

  • Category:  Landmarks
  • “David Livingstone wrote of this discovery of his, ‘Scenes so lovely must have been gazed upon by angels in their flight.'”

Tuesday

  • Category: Toys & Games
  • “The prototype for this game that was introduced in 1948 was called Lexiko.”

Wednesday

  • Category: Children’s Authors
  • “This author and illustrator who won the 1964 Caldicott Medal was dubbed ‘The Picasso of Children’s Books.”

Thursday

  • Category: 1970’s Album Reviews
  • “Rolling Stone said this 1976 album had ‘the best & worst tendencies of L.A. situated rock’ and was an ‘unflattering portrait of the milieu.'”

 

 

 

 

Increasing Access is a Professional Responsibility

I’ve long argued that increasing access to legal services is a professional responsibility that falls on all lawyers.  In other words, it’s the profession’s responsibility.  Let me back up a moment.

If you’re not aware, the sheer number of self-represented litigants is staggering.  In 2015, the Vermont Joint Commission on the Future of Legal Services issued this report.  Kudos to Dan Richardson for envisioning, creating, and shepherding the Commission to an end product.

I chaired the Commission’s Legal Education Committee.  Our section of the report referenced numbers from a study that Judge Davenport did in 20112.  On page 19 we wrote:

  • “In 2012, the Honorable Amy Davenport analyzed the number of self-represented litigants in cases in the Civil Division of the Vermont Superior Court. The numbers were staggering. Defendants in small claims cases represented themselves 94% of the time.21 In the Family Division, 84% of active parentage cases and 54% of active divorces involved at least one self-represented litigant. Ninety percent of the defendants in landlord-tenant cases were self-represented compared to only 24% of the plaintiffs. Defendants in collections and foreclosure cases fared marginally ‘better,’ respectively left to represent themselves 84% and 74% of the time. This ‘improvement’ was offset, if not rendered irrelevant, by the fact that 99% of
    foreclosure plaintiffs and 98% of collections plaintiffs had lawyers.”

I’m not aware of anything to suggest that more litigants are hiring lawyers.  Further, as an aside, I switched from a business track to poli sci during my sophomore year at UVM.  Still, it’s tough to imagine another industry that has such an untapped market.

Anyhow, occasionally, I hear “but Mike, the ethics rules make it tough to provide access.”  That’s a load of horse manure.  I’ve got an entire power point on how, in my view, the rules encourage lawyers to ensure access to legal services.

More specifically, I’ve blogged and spoken on two issues that, arguably, would increase access:

  1. Allowing nonlawyers to own, invest in, and manage law firms;
  2. Allowing nonlawyers to provide specified legal services that, for now, only lawyers can provide.

My posts on the nonlawyer ownership issue can be accessed here.  My post on allowing paralegals to do more was the third most-read post on this blog in 2017.  In the post, which is here, I argued against letting the perfect response to the access crisis serve as an enemy to a good response.

Neither idea has gained much traction in Vermont.  But each is back in the news nationally.

Two weeks ago, the State Bar of California authorized a 60-day public comment period on a series of  regulatory reforms “tentatively recommended” by the  Task Force on Access Through Innovation in Legal Services.  Per this press release from the Cal Bar:

  • “The Task Force’s 16 reform options under consideration represent a groundbreaking menu of possible changes to certain key regulatory issues, including:
    • Exceptions to current restrictions on the unauthorized practice of law;
    • The prospect of non-attorney ownership; and
    • Entity regulation.”

As Professor Bernabe notes on his Professional Responsibility Blog,

  • “The underlying force for these proposals is a concern that something needs to be done to provide more and more affordable access to legal services to people in need.  As you probably know, there are many studies that show that many (perhaps most) people with legal needs don’t have access to affordable representation.  Opening the door for some regulated provision of legal services by non-lawyers might help close the gap.  Yet, some argue this is not a good idea.  And so, the debate continues.”

Yes, the debate continues.  I expect to bring it to the Professional Responsibility Board at its September and December meetings.  In the meantime, many have weighed in, both for and against.  To learn more, check out posts from Above The Law, the ABA Journal, and the Legal Ethics Alert Blog.

No matter your position, keep in mind my theme when I speak on this topic: if increasing access is against the rules, we need to look again at the rules

Legal Ethics.

Vacations, Devices & Vacations from Devices.

Last week, I went to Chicago with the First Brother and Waskow.  We went to a Cubs game Friday.  It was a fantastic day off.  Yet, what did I do as we approached the Cubbie Bear before the game? I lagged behind so that I could respond to a lawyer who had emailed me an ethics inquiry.

Not cool.  I need to practice what I preach.  And here’s today’s sermon in 4 points:

  1. It’s mid-July.  A time for Vermonters to be on vacation.
  2. It’s also 2019.  A time for everyone to be on a device (or 2 or 3).
  3. If you’re a legal professional on vacation, stop reading now!
  4. Put the device down, back away slowly, and resume your vacation.

Wellness

Here’s the longer version.

Last week, Massachusetts Supreme Judicial Court received this report from its Steering Committee on Lawyer Well-Being.  The report, which is like Vermont’s State Action Plan, includes an array of recommendations from various stakeholders within the profession that is incredibly thorough and well thought out.

The Massachusetts report identifies 8 “Major Issues Affecting Lawyer Well-Being.”  They are:

  • Stigma
  • The pace of work
  • Financial pressures
  • Court deadlines & courtroom dynamics
  • Alienation from a lack of diversity and inclusiveness
  • Isolation
  • Secondary Trauma
  • Incivility

Over the next few months, I hope to touch on each.  Today, I’m focusing on “the pace of work” as a major issue affecting lawyer well-being.  In particular, I was struck by a theme that emerged  from the Steering Committee and its subcommittees: take a vacation, including from your devices.

Here’s the opening paragraph from the section of the report that deals with “pace of work” as a “major issue affecting lawyer well-being.”

  • The pace of work: The relentless pace makes it very difficult for lawyers
    to set boundaries between work and the rest of life, and appears to be significantly
    exacerbated by the technology-fueled demands for constant availability. This point
    was underscored by practitioners in firms of all sizes, public attorneys, and in-house counsel.”

From there, the report recommends that legal employers “encourage employees to take vacations.”  The recommendation cites to a study of 6,000 lawyers that “found that their number of vacation days was the strongest predictor of well-being of all activities measured in the study – – even stronger than income level.”

The recommendation follows from the reports of the Steering Committee’s various subcommittee.  For example:

The Subcommittee on Lawyer Well-Being noted that “work addiction” is 250% more prevalent among lawyers than nonlawyers and recommended that employers “encourage vacations.”

The Subcommittee on In-House Counsel found that “in-house counsel face the same pressures as other lawyers,” including “an expectation of 24/7 responsiveness.” As such, the subcommittee recommended that lawyers in supervisory roles should “encourage mental health days and vacation that specifically includes time away from work devices such as laptops and cell phones.”

The Large Firm Subcommittee cited several “major sources of stress.”  Among them, a workload that causes lawyers to “feel pressure to avoid taking full vacations or otherwise establishing time blocks when they are not available to work.”  Another source of stress:

  • “Lack of boundaries: Lawyers often feel that there is no line between being ‘on’ and ‘off’ duty and that they are expected to be available to respond to firm and client demands at all hours of the day and night. As a result, there is no true ‘down time’ for lawyers when they can recharge and be fully present with other aspects of their lives.”

Thus, the subcommittee’s recommendations include:

  • “Vacations. Lawyers should be encouraged to take their full allotment of
    vacation time as an essential component of their job responsibilities. Lawyers should be discouraged from remaining ‘on the grid’ while on vacation. Lawyers should be encouraged to cover for others who are away so that any disruption of service to clients is minimal. Vacation time should be tracked and inquiry made by attorney supervisors or the human resources department if attorneys are failing to take most of their allotted time to make sure that the failure to take vacation is not an early warning sign of burn-out’ or other mental health issues.”

The Massachusetts Bar Association Subcommittee on Attorney Well-Being found that:

  • “By far, the single most common cause of stress among all the disparate areas of legal practice was technology. The fact that technology allows attorneys to always be accessible to colleagues, partners, clients, and courts creates the expectation that they will always be accessible. Technology impacted the ability of attorneys to unwind, relax, and focus on the nonlegal aspects of their lives. They expressed concern that, if they do not respond to partners’ emails, texts or calls immediately, that they will lose their positions. They also believe that law firm culture demands that they remain accessible in order to meet billable hour requirements and to advance within the firm.”

And,

  • “Client expectations of full-time access with no boundaries is bolstered by the
    competitive nature of the practice of law. Attorneys reported that they fear that clients who demand immediate responses to emails and cellphone access, regardless of the date and time, will go elsewhere if the attorneys do not respond quickly enough. Reviewing work emails, text messages, and responding to work-related phone calls at all hours interferes with family time, social interactions, and self-care. A common issue among the responding attorneys is that they feel they never truly get away from work to recharge.”

Then, the subcommittee recommended that legal employers “encourage vacations, set limits on client access, and allow attorneys to establish boundaries to allow them to devote time to self-care and family life, without fear of retribution.”

In sum, take a vacation.  Not just from your job, but from your devices.

Start now.

 

Monday Morning Answers #170

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

Honor Roll

  • Karen Allen
  • Evan BarquistMontroll, Backus & Oettinger
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, John Marshall Law School
  • Honorable John M. Conroy, United States Magistrate Judge, District of Vermont
  • Erin GilmoreRyan Smith & Carbine
  • Laura Gorsky
  • Bob Grundstein
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy, JB Kennedy Associates, Mother of the Blogger
  • Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
  • Aileen LachsMickenburg, Dunn, Lachs & Smith
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Lon McClintockMcClintock Law Offices
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Hal Miller, First American
  • Herb Ogden, Ogden Law Offices
  • Thomas Wilkinson, Jr., Cozen O’Connor
  • Peter Young, General Counsel, Vermont Rail System

Answers

Question 1

How long must a lawyer keep records of funds that belonged to clients or third persons and that the lawyer held in connection with a representation?

  • A.   6 years from the termination of the representation.  V.R.Pr.C. 1.15(a)(1)
  • B.   The rules are silent on this issue.

Question 2

The following are exceptions to a particular rule.

  • to establish a claim or defense in a controversy between the lawyer and client;
  • to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved; or,
  • to respond to allegations in any proceeding concerning the lawyer’s representation of the client.

Generally, what does the rule prohibit?

Disclosing information relating to the representation of a client.  The exceptions listed appear in Rule 1.6(c)(3) and, collectively, are often referre to as “the self-defense exception.” 

Question 3

Lawyer represents Client.   Lawyer calls Witness to testify.   Witness completed his testimony and the court recessed for the day.  Preparing for the next day of trial, Lawyer comes to realize that Witness offered material evidence that was false.

Which is most accurate?

  • A.   Lawyer must take reasonable remedial measuresV.R.Pr.C. 3.3(a)(3)
  • B.   Lawyer need not correct the record since it was Witness and not Client.
  • C.   Lawyer’s duties are different depending on whether the case is criminal or civil.
  • D.  Lawyer must withdraw.

Comments 10 and 11 are instructive.

Question 4

Lawyer called me with an inquiry.  I listened, then said, “it’s okay as long as it does not imply a connection with a government agency or public or charitable legal services organization and is not otherwise false or misleading.”

What did Lawyer call to discuss?

  • A.    Using a trade name as a firm name.  V.R.Pr.C. 7.5(a)
  • B.    Organizing a pro bono clinic staffed by volunteer lawyers.
  • C.    Using an undercover investigator.
  • D.   Conflicts of interest that arise when moving to & from government practice.

Question 5

As readers know, I’m a huge proponent of attorney well-being and finding interests outside the law.  For me, I love running.

Earlier this week, an assistant public defender had to undergo emergency surgery after suffering a serious injury while taking a selfie as he participated in a famous “running” event.  Here’s what one of his co-workers said to the press:

  • “As an office we encourage our employees to pursue outside interests and explore their passions.  For many it’s traveling, and we think such pursuits are critical to the general wellness of our entire . We are relieved the incident was not more serious and we are looking forward to [the lawyer’s] return.”

Name the “running” event that the lawyer was participating in when he was injured.

The Running of the Bulls, which occurs on the final day of Pamplona’s San Fermin Festival. I blogged about the incident here.  The clip from The Breakfast Club summarizes my feelings on running in the event.

Professor Alberto Bernabe, a regular member of the Honor Roll, has actually attended the event. He sent me this picture of the ring.

BF2-2004