Monday Morning Answers #166

Happy Monday!

Friday’s questions and the story of the life lesson that Mr. Selby taught me in 6th grade are here.  The answers follow today’s Honor Roll.

Honor Roll

  • Matt AndersonPratt Vreeland Kennelly Martin & White
  • Penny Benelli, Dakin & Benelli
  • Andrew DelaneyMartin & Delaney Law Group
  • Erin GilmoreRyan Smith & Carbine
  • Bob Grundstein, Esq.
  • Mark HeymanGeneral Counsel, Logic Supply
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy, JB Kennedy Associates, Blogger’s Mom
  • Thomas Kester, Assistant General Counsel. Blue Cross & Blue Shield of Vermont
  • Lon McClintockMcClintock Law Offices
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Hal Miller, First American
  • Allison Bates Wannop, Special Counsel, Vermont Department of Public Service
  • WILO
  • Thomas Wilkinson, Jr., Cozen O’Connor
  • Zachary York, Vermont Superior Court, Chittenden Civil 

Answers

Question 1

True of false.

For the purposes of the rule that prohibits conduct that is degrading or disruptive to a tribunal, a deposition is not a tribunal.

FALSE.  V.R.Pr.C. 3.5, Comment [5} (“The duty to refrain from degrading or disruptive conduct applies to any proceeding of a tribunal,  including a deposition.”)  See also, Rule 1.0(m).

Question 2

The following are exceptions to the general prohibition against what?

  • to establish a claim or defense on behalf of the lawyer 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;
  • to respond to allegations in any proceeding concerning the lawyer’s representation of the client.

Disclosing information relating to the representation of a client. V.R.Pr.C. 1.6(c)(3).

Question 3

Only 1 is correct.  Which?

By rule, a lawyer shall:

  • A.   maintain copies of advertisements for 2 years;
  • B.   maintain a copy of the client’s file for 7 years following delivery thereof;
  • C.   maintain trust account records for 6 years following the termination of the representation.  V.R.Pr.C. 1.15(a)(1).
  • D.    Trick question.  Each statement is correct.

Question 4

There’s a rule that prohibits a lawyer from assisting a client in conduct that the lawyer knows is criminal or fraudulent. A few years ago, the Supreme Court promulgated a Comment to the rule to make it clear that a lawyer does not violate the rule by advising clients on matters that are legal under a set of Vermont’s state laws that apply to a specific product/industry.

What is the product/industry?

Cannabis.  See, V.R.Pr.C. 1.2, Comment [14].

Question 5

Robert H. Jackson was an associate justice on the United States Supreme Court from 1941 to 1954.  Prior to his appoint, he served both as United States Solicitor General and United States Attorney General.  He is the only person ever to have held all 3 offices.

In 1945, Jackson took a leave from the US Supreme Court.  He did so after accepting an appointment from President Truman to serve as a special prosecutor.

Identify the proceeding at which Jackson served as a special prosecutor while on leave from the United States Supreme Court.

Image result for robert h jackson closing argument

The  Nuremberg Trials.

Note: Jackson earned wide praise for his opening statement and closing argument.

Opening Statement – Text

Opening Statement – Video

Closing argument – Text

Closing argument – Video

 

Five for Friday #166

Last weekend, I briefly thought that the 166th #fiveforfriday column would fall on 6/6.  It didn’t, but close enough.

D-Day always reminds me of Cleland Selby.  Mr. Selby was my 6th grade Language Arts teacher.  That year, I wrote a paper about the Allied invasion of Normandy.

Until this morning – more on that later – I didn’t remember much about the paper other than the topic. However, I’ve always remembered how much Mr. Selby helped me.

I struggled with the assignment.  I did so much research that I was overloaded with information. Overwhelmed and unable to narrow my focus, I went to Mr. Selby for help.  His response made a difference in my life.

Mr. Selby gave me a pile of 3 x 5 index cards.  He told me to write one – and only one – fact or thought about D-Day on each card.  I did.

Next, he told me to arrange the cards in an order that made sense.  I did.

Then, Mr. Selby told me that was my paper.  All I had to do was write the thoughts in the order I’d arranged them.  He was right. More importantly, his advice turned into a life lesson.

I teach a lot of CLEs during June.  I’ve already done two this week, have two more later today, and four more next week.  Different presentations at each, 12 hours total.  Last week and early this week, I felt overwhelmed trying to prepare.  Then, I remembered Mr. Selby.

I opened a power point and, on the first slide, I typed one thing I wanted to say at the first seminar.  Next slide, another thing.  One slide, one thought at a time.  My focus shifted from anxiety about the amount of work – “I’ll never get this done!” “too many presentations!” They’re gonna be terrible!” – to the work itself.  Abiding by Mr. Selby’s advice to move one thought at a time, stress melted, focus restored, and the work got done.

And isn’t that all we can do whenever overwhelmed or facing a challenge?  Deep breath, first things first, one thing at a time.

Whatever is overwhelming or challenging you today, don’t get lost in how daunting the effort will be.  Rather, whatever your version of an index card, note one thing that you can do.  Then, do it.  Even one step will help. Keep taking steps.

I have no idea where Mr. Selby is today, or if he’s even alive.  No matter, thank you Mr. Selby! The paper you helped me to organize doesn’t matter much.  But, the larger lesson you instilled in the process made a big difference in my life.

Now, before I get to the quiz, this morning, I dug through one of the many boxes of stuff that my mom saved from when we were young.  I kid you not, I found a folder of 6th grade schoolwork, including the D-Day paper!

I had it my head that I wrote about Eisenhower and his brilliant strategy.  Nope. I wrote it from the perspective of the German high command’s belief that the invasion would come at Calais.

Here’s the cover:

IMG_2776

Look at the all the mark-ups, Mr. Selby worked hard!

IMG_2767

And look what I gave him in return when he asked me to expand upon my conclusion:

IMG_2777

Also, not sure why I went to law school with such mad skills in math & science:

IMG_2752

IMG_2779

My social studies project on the Maritime Provinces reveals less skill at map-making.

IMG_2753 (1)

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

True of false.

For the purposes of the rule that prohibits conduct that is degrading or disruptive to a tribunal, a deposition is not a tribunal.

Question 2

The following are exceptions to the general prohibition against what?

  • to establish a claim or defense on behalf of the lawyer 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;
  • to respond to allegations in any proceeding concerning the lawyer’s representation of the client.

Question 3

Only 1 is correct.  Which?

By rule, a lawyer shall:

  • A.   maintain copies of advertisements for 2 years;
  • B.   maintain a copy of the client’s file for 7 years following delivery thereof;
  • C.   maintain trust account records for 6 years following the termination of the representation.
  • D.    Trick question.  Each statement is correct.

Question 4

There’s a rule that prohibits a lawyer from assisting a client in conduct that the lawyer knows is criminal or fraudulent. A few years ago, the Supreme Court promulgated a Comment to the rule to make it clear that a lawyer does not violate the rule by advising clients on matters that are legal under a set of Vermont’s state laws that apply to a specific product/industry.

What is the product/industry?

Question 5

Robert H. Jackson was an associate justice on the United States Supreme Court from 1941 to 1954.  Prior to his appoint, he served both as United States Solicitor General and United States Attorney General.  He is the only person ever to have held all 3 offices.

In 1945, Jackson took a leave from the US Supreme Court.  He did so after accepting an appointment from President Truman to serve as a special prosecutor.

Identify the proceeding at which Jackson served as a special prosecutor while on leave from the United States Supreme Court.

Wellness Wednesday: Risk & Response

I’ve been blogging & speaking about wellness since March 2016.  Over time, the tide has turned.  Early skepticism and resistance has given way to widespread acceptance that wellness must be addressed, and even wider enthusiasm in providing solutions.

The various responses to the wellness crisis flow from this 2017 report from the National Task Force on Lawyer Well-Being.  Among other things, the report urged state supreme courts to create commissions to study & make recommendations on how the profession’s various stakeholders could act to improve wellness.

Under the leadership of Chief Justice Reiber and the Supreme Court, Vermont did exactly that.

Late last year, the Vermont Commission on the Well-Being of the Legal Profession issued a State Action Plan. The plan outlines the proactive measures that the stakeholders in Vermont’s legal community will take to improve the profession’s health and well-being.  To my knowledge, following the report & recommendation from the National Task Force, Vermont was the first state to issue an action plan.

Interestingly, while the profession has accepted and started to address the problem, nobody has looked critically at the “why?”  Why do legal professionals suffer from behavioral health problems at such staggering rates?  What is it that puts us at risk?

Until now.

Last month, the Virginia State Bar’s Special Committee on Lawyer Well-Being issued The Occupational Risks of the Practice of Law.  Professor Alberto Bernabe blogged about it here.  The report identifies four categories of risk, then dives deeper within each:

You don’t have to read the entire report.  Pages 2-11 include an accessible and hepful matrix that, for each risk, sets out its (1) potential effects; (2) practice pointers for individuals; and (3) practice pointers for organizations.

For example, lately, I’ve blogged and spoken often on the connection between incivility and wellness.  Here’s what the report from the Virginia State Bar says about the occupational risks associated with the adversarial nature of our work:

More Risk

 

Good stuff.  The matrix does the same for each risk factor. Give it a read.  Again, it’s here.

After all, it only makes sense that the most effective response will come from understanding the risk.

Wellness

 

Monday Morning Answers #165

Welcome to June’s first Monday!

Similarly, a special welcome to Tom Kester.  Friday marked Tom’s first quiz entry, with today his first Honor Roll appearance!

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

Honor Roll

  • Karen Allen, Esq.
  • Matt AndersonPratt Vreeland Kennelly Martin & White
  • Evan BarquistMontroll Backus & Oettinger
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, John Marshall Law School
  • Erin GilmoreRyan Smith & Carbine
  • Bob Grundstein, Esq.
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Thomas Kester, Assistant General Counsel. Blue Cross & Blue Shield of Vermont
  • Lon McClintockMcClintock Law Offices
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Hal Miller, First American
  • Kristen ShamisMonaghan, Safar, Ducham
  • Thomas Wilkinson, Jr., Cozen O’Connor
  • Zachary York, Vermont Superior Court, Chittenden Civil 

Answers

Question 1

 Except as permitted or required by other rules, a lawyer shall not use information relating to the representation of a client to the disadvantage of the client:

  • A.  True and that’s end of it, there are no exceptions.
  • B.   Unless the client gives informed consent.

The language comes directly from Rule 1.8(b). It’s not clear to me what would lead a client to provide such informed consent. Also, special kudos to Penny Benelli.  Penny correctly pointed out that, with former clients, a lawyer shall not use information relating to the representation except as required or permitted by other rules, or, when the information has become generally known.  See, Rule 1.9(c)(1).

Question 2

 True or False.

If one of the Rules of Professional Conduct requires a “writing,” an email complies with the rule.

True.  Rule 1.0(n)

Question 3

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

  • “the first thing that the rule requires is that you not state or imply that you’re disinterested.”

Given my response, it’s most likely that Attorney called to discuss the rule on:

  • A.  Candor to a tribunal
  • B.   Trial publicity
  • C.   Dealing with an Unrepresented Person.  
  • D.   Pro Bono work

The prohibition against stating or implying disinterest is in Rule 4.3 – “Dealing with the Unrepresented Person.”  The rule goes on to state that if the lawyer knows or reasonably should know:

  • (a) that the unrepresented person misunderstands the lawyer’s role, the lawyer shall make reasonable efforts to correct the misunderstanding; and,
  • that there is a reasonable possibility that the unrepresented person’s interests conflict with the client’s, the lawyer shall not give legal advice to the unrepresented person, other than the advice to seek counsel.

Question 4

Lawyer represents Plaintiff in a civil case.  Trial is scheduled to being Monday.

Lawyer called me this morning.  Lawyer told me that, yesterday, Lawyer learned that Witness intends to lie for Plaintiff.

Which is most accurate Vermont’s rule?

  • A.  Lawyer must explain to Plaintiff the risks of providing false evidence, then abide by Plaintiff’s informed decision whether to call Witness.
  • B.   Lawyer may refuse to call Witness if Lawyer reasonably believes that the evidence Witness will offer is false.
  • C.   Lawyer may call Witness, but not ask any questions. Witness must testify in the narrative.
  • D.   Lawyer must withdraw.

It’s Rule 3.3(c).  “A” is not correct because a lawyer is not required to abide by a client’s instruction to present false evidence.

Question 5

Lawyer called.  Lawyer told me that Lawyer had been asked to get involved in a matter involving Person.   Lawyer explained that Lawyer had previously belonged to a country club owned by Person’s business.  Lawyer said that Lawyer’s family resigned their membership and asked for a refund of the membership deposit.  The club did not refund the deposit, but placed Lawyer’s family on a wait list to be refunded on a “first resigned/first refunded” basis.  As tends to happen no matter who owns these clubs, no refund has yet to be made.  Lawyer asked my thoughts on whether the refund issue posed a conflict that precluded Lawyer’s involvement in the matter.

Then I woke up!

Your task: Identify Lawyer who made an ethics inquiry in my dream.

I need better dreams.

Robert Mueller.  And, in the dream, “Person” is President Donald Trump.  Among others, CNN, Vanity Fair, Golf Digest, and the Washington Examiner reported the story.

Image result for robert mueller golf

Five for Friday #165

Welcome to Friday!

With Memorial Day in the rearview, I took a drive today.  Time to emancipate.

Whoops…wrong blog.

What I meant to say is that with Memorial Day in the rearview, I intended to use today’s intro to remind you that, while not even here yet, summer will be over before we know it.  I expected to remind you to make time to enjoy it.

Honestly, I hope summer provides you with time for family, friends, and relaxation.  The things that matter.  But, through personal experiences, I want to share some caveats.

First, if summer isn’t your thing, that’s fine!  As I mentioned in Reach Out, Check Inspring & summer are exceedingly difficult for many.  Far less serious, but still to my point, I’m reminded of Kenny.

I love Kenny. Awesome dude.  He claims to be my cousin – we aren’t – but that’s a story for another day.  Kenny LOVES to ski.  He had more than 100 days on the slopes this past season.  Skiing – and winter – is his wellness.   Summer?  He works about 100 hours a week at a golf course.  Hard, hot, dirty work, but work that frees up his winters.  The fact that I’d prefer just the opposite doesn’t mean that Kenny is wrong or unwell.  It means he’s true to himself.

I’m a creature of summer.  Kenny is a creature of winter.  Both are ok.  Be you.

Second, don’t judge your summer by others’.  Here’s something that the Wisconsin Lawyer Assistance Program posted to Instagram a few days ago:

WISLAP

For the next few months, pictures of friends & colleagues having what appear to be grand ol’ summers will clog your social media feeds.  Don’t be jealous.  Don’t hope that they’re not having as much fun as it looks.  Most importantly, don’t consider their posts a reflection on you and your life.   I deal with this often with someone close to me. It makes zero sense – and is unhealthy – to compare your life to someone else’s digital moment that may or may not reflect reality.

Next, do what you want, not what you think others will approve of.

For many summers, I told myself I had to spend a week in either Maine or on the Cape.  After all, that’s what everyone else does.

I never did.  Often, just thinking about NOT doing what others had done caused me stress and anxiety.  I’d wonder what was wrong with me.  Why hadn’t I booked a week on the coast?  The stress of finding the idyllic summer getaway always ended in me never getting away, stuck in a Labor Day funk beating myself up over another wasted summer.

No more.  Last summer, I didn’t even consider a formal “vacation” somewhere out of state. Instead, I decided that every weekend, I’d drive somewhere in Vermont and go for a long run.

I loved it.  Every part of it.  I loved being on the road early: sunroof open, coffee in the console, tunes blaring.  I loved the runs – seeing parts of the state that I’d never otherwise see. I loved my post-run swims in lakes, ponds, and rivers.  I loved my post-swim-post-run stops at local breweries.  Most of all, I loved being back home that night.  On my deck, grill fired up, those local brews in a chilled glass.

Is that for everyone?  No.  But it’s what’s good for me.  Do what’s good for you. Not what you think others will “like” as good for you.

My final point is this: if you have something “big” planned this summer, enjoy the other moments too. I’ve often found myself so wrapped up in the anticipation of a future event – say a race or a trip – that I forget to make time to enjoy life as it happens along the way.

For instance, in July, my brother and I are going to Chicago for a half marathon and a Cubs game. It’s going to be great.  But it’s almost 2 months away!

I resolve not to get so focused on a late-July weekend as to lose sight of all the weekends to enjoy between now and then.  You know, life’s a journey, not a destination.  Or, maybe what I’m saying is that rather than carving out a week of time for things that matter, I’m going to make a habit of making time for things that matter.  And it’s not just the big things that matter.

Well-being isn’t one size fits all.  However, aspects of it apply to each of us:

  • Be you.
  • Don’t compare yourself to others.
  • Do what works.
  • Make it a habit, one that doesn’t lose sight of the “small” things that matter.

Onto the quiz!

Rules

  •  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 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

 Except as permitted or required by other rules, a lawyer shall not use information relating to the representation of a client to the disadvantage of the client:

  • A.  True and that’s end of it, there are no exceptions.
  • B.   Unless the client gives informed consent.

Question 2

 True or False.

If one of the Rules of Professional Conduct requires a “writing,” an email complies with the rule.

Question 3

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

  • “the first thing that the rule requires is that you not state or imply that you’re disinterested.”

Given my response, it’s most likely that Attorney called to discuss the rule on:

  • A.  Candor to a tribunal
  • B.   Trial publicity
  • C.   Dealing with an Unrepresented Person
  • D.   Pro Bono work

Question 4

Lawyer represents Plaintiff in a civil case.  Trial is scheduled to being Monday.

Lawyer called me this morning.  Lawyer told me that, yesterday, Lawyer learned that Witness intends to lie for Plaintiff.

Which is most accurate Vermont’s rule?

  • A.  Lawyer must explain to Plaintiff the risks of providing false evidence, then abide by Plaintiff’s informed decision whether to call Witness.
  • B.   Lawyer may refuse to call Witness if Lawyer reasonably believes that the evidence Witness will offer is false.
  • C.   Lawyer may call Witness, but not ask any questions. Witness must testify in the narrative.
  • D.   Lawyer must withdraw.

Question 5

Lawyer called.  Lawyer told me that Lawyer had been asked to get involved in a matter involving Person.   Lawyer explained that Lawyer had previously belonged to a country club owned by Person’s business.  Lawyer said that Lawyer’s family resigned their membership and asked for a refund of the membership deposit.  The club did not refund the deposit, but placed Lawyer’s family on a wait list to be refunded on a “first resigned/first refunded” basis.  As tends to happen no matter who owns these clubs, no refund has yet to be made.  Lawyer asked my thoughts on whether the refund issue posed a conflict that precluded Lawyer’s involvement in the matter.

Then I woke up!

Your task: Identify Lawyer who made an ethics inquiry in my dream.

I need better dreams.

Fake Lawyer Loses Job. Think deeper.

John Grisham’s The Rooster Bar is a novel.  That is, it’s a work of fiction.

Image result for the rooster bar images

The plot?

Without giving much away: three law students drop out of law school.  Under fake names, they pose as lawyers, open a law firm, and represent clients without ever having passed the bar exam or obtained law licenses.

Sometimes life imitates art.

Last week, an assistant public defender in Illinois was fired after a judge discovered that she did not have a license to practice law and had never passed the bar exam.  The law school grad had worked on “about 80 cases” since being hired last fall.  The ABA Journal,  Belleville News-DemocratEdwardsville Intelligencer and the Madison-St. Clair Record reported the story.

I considered posting this in the Was That Wrong? format.  For several reasons, I opted not to.  One of those reasons was my reaction to an aspect of the story,

Per the Madison-St. Clair Record, the non-lawyer’s former boss:

  • “said that he typically reviews the work of all staff, discussing with prosecutors and his own staff as to a defender’s competence.  There was ‘never anything that stood out to make me question her abilities,’ he said.”

Per the Edwardsville Intelligencer, the non-lawyer’s former boss “had no problem with [the non-lawyer’s] work . . . other than mistakes most new attorneys encounters.”

It makes me wonder: if she was providing competent legal services to her clients, what’s that say about the bar exam requirement?

Don’t get me wrong. I am not condoning the non-lawyer’s conduct.  It was infected with deceit and, as referenced in the news reports, might be criminal.  No matter our entry requirements, the privilege to practice law should be denied to people who lie to receive it and while exercising it.  Further, the non-lawyer’s decision to misrepresent herself as a licensed lawyer raises significant concern about her judgment, honesty, and trustworthiness.  If she’ll lie about having a law license, what else will she lie about?

But that’s a question for a character and fitness committee.

The fact remains that, for 8 months, she apparently provided competent representation to her clients despite never having passed the bar exam.

Small sample size?  Yup.  Maybe time would have proven she lacked minimal competence.

Still, I know for a fact that there are law grads here in Vermont who, unfortunately, have failed the bar exam too many times to be allowed to sit for it again.  Many did good, competent work in offices both pubilc and private while continuing to study to pass the exam.  In other words, despite track records of actual competence, track records of scoring too low on exams keep them from practicing law.  Most, understandably, have left the legal profession altogether.  I’m not sure why, but I can’t help but be reminded of this 2017 post in which I argued that we cannot let the perfect be the enemy of the good in the fight to increase access to legal services.

I started with Grisham.  I’ll end with Tolstoy, by way of Seinfeld and Edwin Starr.

In this scene, Elaine was wrong. The original title for War and Peace was not War, What Is It Good For?  Still, at least in the isolated incident involving the fake lawyer in Illinois, one might conclude that the bar exam was good for absolutely nothing.

Huh.

Wellness Wednesday: Meet Alison, Shireen, Samantha, & Alison

Happy Wellness Wednesday!

I’ve often used Wellness Wednesday posts to introduce you to legal professionals who make time for interests outside the law and who are willing to share their thoughts on how those interests relate to their practices and wellness.

Today, with the Stanley Cup finals in full-swing, I’m thrilled to introduce you to 4 of Vermont’s hockey-playing lawyers:  Alison Bell, Shireen Hart, Samantha Lednicky, and Alison Milbury Stone.

Alison J. Bell    Shireen T. Hart  Alison Milbury Stone

I started my interview by asking each to respond to this email:

  • So, you’re a hockey playing lawyer.  I don’t know about you, but I’m often asked, “why’d you go to law school?”  Tell us how you got into hockey & your involvement with the sport now.

The answers fascinate me.  So much so that I contemplated stopping there.  Nevertheless, Alison, Shireen, Sam, and Alison were kind enough to answer follow-up questions as well.

Thank you to this fantastic foursome!

Any and all typos are mine.  Enjoy!

Alison Bell – Langrock, Sperry & Wool

Alison J. Bell

I started playing (a version of) hockey when I was 16 (for those counting, I am now almost 62). I grew up in a skiing/ski racing family in Stowe, so had never really skated. But one winter, there was literally no snow, and a bunch of us decided to play broom ball. Unlike some versions of that game, we used skates. My parents owned a convenience store, so I ordered a box full of regular brooms, chopped them at an angle in my high school shop class, and dipped them in fiberglass (I was a white water kayaker, with access to fiberglass, but that is a different story). Needless to say, the “sticks” weighed a ton, and were dangerous weapons. But we chased that ball around the rink, and I (sort of) learned to skate.

I first went to college at Bowdoin, then a men’s hockey powerhouse. There was no women’s team, but there was something called “Powder Puff Hockey” (seriously!). Some male students volunteered to coach, and I learned a lot about the game. But I still could not really skate.

I transferred to Harvard for my junior year, and some first-year women, who had actually played in boarding school, were agitating for a team. We were granted club status for my junior year and then, thanks to Title IX and an imposed need for parity, we became a Division 1 varsity team my senior year. My claim to fame is that I was the first-ever captain of Harvard Women’s Hockey, now a women’s hockey powerhouse. The first ever coach – Joe Bertagna – is now the head of Hockey East, and still a dear friend. We get invited to alumnae events as the OG, and get to share the dais with various Olympians, which is a thrill. I was recently honored along with other original players at the 40th anniversary of the Women’s Beanpot tourney, also a thrill.

As to the actual quality of hockey, my Harvard team was awful; we once lost by “two touchdowns and a field goal,” as Coach said. But we worked hard, had fun, and my teammates remain my friends, which is the best part of hockey (more on that below).

After college, I played and coached in a girls’/women’s program in Stoneham, MA for many years, while I was in law school and working in Boston. That was when I really learned to play. I had a specific epiphany, when I realized that the edges on my skates were the same as the edges on my skis, and it all clicked. My women’s team won a national championship at the Senior A level (that would clearly be B or C level today), and I helped to coach a U12 team to a national championship in Lake Placid, where Sandra Whyte (who would later play for Harvard and score the game winning goal in that first Olympic gold medal game) scored the only, winning goal, in the fourth overtime. That was a high point!

Moving back to Vermont, my husband and I coached all three of our kids in youth hockey, much to their dissatisfaction with being the coaches’ kids. I also played a lot of pick up hockey, both with women and coed, and frankly grew to dislike it. It is frustrating when you have an idea how the game should really be played and others do not. I was thinking about quitting, when a new opportunity arose. A guy named Ian Smith – who had been D3 player of the year at Middlebury and who is a natural teacher – offered to coach a team of women. We put a team together, and actually had practices once or twice a week, in addition to games. We learned so much, by focusing on more technical skills, game strategies, mental aspects, etc.

Though we no longer have a coach, that team continues to exist and play in the VWHO league. It is the best group of people (our rule is no drama!), ranging in age from early 20s to me, and they are my closest friends. There is such joy in being able to play a team sport, at a decent level, at this stage in life. I can actually say that all of the best things in my life have been connected to hockey, as I met my husband playing in a law firm league in Boston!

Shireen Hart – Primmer Piper Eggleston & Cramer

Shireen T. Hart

About 10 years ago, I was spending a lot of time in the stands watching my son play. A friend who was in the stands with me reached out to Dan McFall (played for the Winnipeg Jets and runs Full Stride Hockey) to put together a women’s intro to hockey group. About 20-30 of us showed up – all “hockey moms.”  Most of us were brand new to the sport – and skating too. At the end of the two-month session, we had the temerity to break into 2 teams and join an existing women’s league.

Our first season was not pretty. We were playing against women who had been skating since the time when they could walk. I had somehow convinced myself that I would be safer in net than skating out – given that I hadn’t mastered the hockey stop yet. I also figured that my less than stellar skating would be less obvious between the pipes – even though goalies are supposed to be the best skaters on the ice.

Fast forward to today, where I play pickup twice a week with a co-ed group that has been playing together for decades. I have met some of the most interesting and entertaining people through hockey. It is rare when I go out these days and don’t run into someone, I have at some time met on the ice.

Perhaps the most surprising outcome from taking up this kind of endeavor mid-life is what it has done for my all-around confidence or moxie. While there is still plenty of room for improvement, and I still consider myself a baby goalie, I thankfully can’t remember the last time I had to use double digits to count the goals I let in.  Goalies don’t pay to play hockey, but, looking back, my teammates probably should have charged me to play for the first several years.

By the way, Sam can attest to this. She played D on one of my teams several years ago and could not have been more gracious about my utter lack of know-how. Always a smile and positivity.

Samantha Lednicky – Murdoch, Hughes, Twarog & Tarnelli

That’s a good question, I remember taking skating lessons when I was really young (with figure skates first!) and skating on my town outdoor rink in the winter. I didn’t get into hockey until my sister picked it up and played on CVU’s first women’s hockey team.  When she graduated (she’s 5 years older) I inherited her equipment and asked to play CSB (a youth team) and then join the high school team. It was in high school where I discovered I had a passion for the game.

Although I was far from the best skater on the ice, I was probably one of the most determined and fearless (often ending up in the penalty box because I didn’t know how to stop).  At UVM I joined the women’s club team, which started out playing in the local Full Stride League in the fall and traveling to New England colleges in the spring.  Since women’s hockey was still relatively new, most colleges didn’t have developed club teams yet, so we found ourselves playing against whoever would agree to play us.  Notably I remember traveling with the whole team up to Quebec and playing in a tournament against all male teams whose average ages were 20 years older than us.

Once I moved on to law school in Boston I stopped playing, but one of my internships in law school brought me to the Burlington US Attorney’s Office where I was introduced to Barb Masterson who happened to be the captain for the “Switchblades” (the jerseys were sponsored by Switchback Brewery) an all-women’s hockey team.  Then after graduating law school and moving back to Vermont I started playing with the DRM Sharks and Vermont Vixen.  At one point I was playing three times a week, now I’m down to twice a week.  Somehow I manage to get myself to late night games, even when they start at 10:05PM and I have to be in court at 8:30AM the next day!

Alison Milbury Stone – Assistant Attorney General

Alison Milbury Stone

I’d say I didn’t have a choice, but my rebellious younger sister proved otherwise by signing up for basketball. By then it was too late for me.

Hockey is part of the fabric of my family, and I can’t remember being introduced to it, only that it was always around. My dad played for, coached, and managed the Boston Bruins, and later coached and managed the New York Islanders. My mother was the leading scorer for the first Colgate University women’s hockey team. I grew up playing street hockey and pond hockey with my two older brothers. We spent a lot of time at the old Boston Garden, watching games and practices and playing in the bowels of the old building. I played on boys teams until I was about 11, when a regional girls team was formed (and then I played with both the boys and the girls).

Hockey has taken me many places. One of the first was Phillips Exeter Academy in New Hampshire as a high school freshman (among other draws, they had a girls team and two sheets of ice).

Next was Brown University. There, the Bears (dubbed the Pandas) were ranked #1 in the country, and we were Ivy League champs but lost the national final in an upset to the University of Minnesota. As a junior and a French major, I decided to study abroad in France, but made sure to pick a city (Lyon) that had a women’s ice hockey team. Unfortunately, they cancelled the season after a few training sessions, but as a consolation I joined their roller hockey team and was able to travel around France – to the Alps, Bordeaux, and then Lille for the national championships, where we clinched second.

After graduating from college, I bought a backpack for a round-the-world adventure. But as chance would have it, I went with my dad to the NHL entry draft that summer (in Nashville, Tennessee, of all places), and found myself sitting between the New York Islanders’ Swedish talent scout and Finnish scout at dinner. Both spoke Swedish, a language I had studied my senior year. They quickly decided that as a Swedish-speaking hockey player, it was imperative that I do a stint in Scandinavia, and they made good on their word to facilitate that. A few months later I moved to Stockholm, Sweden, where I suited up for the Allmänna Idrottsklubben (AIK) women’s team. I also got a day job at the Stockholm offices of the American law firm White & Case – the start of my career in the law. My team won the Swedish national championship, and I still have a gold Jofa helmet to show for it (though now it is a bit dinged up from my family playing with it and using it as a bike helmet).

I subsequently moved to Washington, DC, where I adopted the Washington Capitals as my second team and joined a beer league (coed by virtue of my participation). When I was considering Vermont Law School, a colleague introduced me to a female hockey player there. It turned out the VLS Swans were playing in a tournament the weekend I was to visit, and because it was their spring break, they were short on players. So, I suited up for the Swans before even enrolling. I took it as a sign that the school was a good fit.

Though I am now well past my hockey prime, I still play on two Burlington-area teams, both with Sam Lednicky: a co-ed team, the DRM Sharks (Sam and I are both Downs Rachlin Martin alums) and a women’s team called the Vermont Vixen. We play against Alison Bell in the women’s league. This year I made my fourth appearance at the Lake Champlain Pond Hockey Tournament in Mallet’s Bay. I am now also a proud hockey mom as my oldest child, 4-year-old Ned, just finished his first season.

MK:  Fantastic stories! I’m in awe.  Do you remember what made you burn to be a lawyer? These days, I wonder if one of the challenges of “attorney wellness” is keeping that fire lit.  How do you as lawyers make sure that the drive that landed you in law school continues to push you? Are there lessons from hockey?

Alison Bell:  I did not have a burning desire to be a lawyer, but I knew I wasn’t going to medical school, and I didn’t know what else to do. I did work as an investigator under some superb lawyers after college and before law school, so that encouraged me to apply.  But I have always been driven by social justice issues, even since childhood, and that keeps me going as a lawyer. I am fortunate enough to work in a firm that supports such efforts, both in our own work and in involvement with other organizations and causes. As I look at “retirement” I am thinking about using my legal skills in the service of a cause. Not sure any of this relates to hockey, other than the general idea that sports teach perseverance.

Shireen Hart: I consider myself new to hockey (and probably always will), so I am still developing my skills. I tend to focus on one different skill or strategy over the course of several games until muscle memory kicks in. I then turn to another new skill or strategy.

In my law practice, I try to push myself in a similar way. While I can certainly continue to do the work I have been doing for more than 2 decades, I am making myself step out of my comfort zone to take on new types of cases within health law – the most recent being serving as a Patient Care Ombudsperson in bankruptcy cases and representing a court-appointed receiver for several long-term care facilities. This new work has not only rejuvenated my practice, but it has also offered me additional skills to apply throughout my health law practice.

Samantha Lednicky:  I started undergrad as a psychology major, got involved in various research projects and found myself interviewing juveniles at Woodside as a research assistant studying risk/reward deficits in youth.  It was then that I realized I was bound to be in a courtroom helping criminal defendants and not in a research lab. Every day that I’m in court or meeting directly with clients I am reminded why I became a lawyer.  The feeling I get with direct client contact and courtroom time is the same feeling I get on the ice—an excitement to be there and a determination to do well.

Life gets busy and client needs can be demanding.  It’s easy to put your head down just to get through the day, that’s when I think lawyers suffer the most and burn out.  If hockey has taught me anything it’s keep your head up and skate hard to the net.  Practicing law it’s equally as important to keep your head up and work hard towards your goal.  But you have to maintain a work life balance, just as in hockey, you can’t skate every day of the week you need a rest day.  I recently had a particularly tough day in terms of the subject matter of the cases I was working on, and I reminded myself that it’s okay to take a break and I took some time for myself by, you guessed it, playing hockey!

Alison Milbury Stone:  Same formula: do something you are passionate about, that plays to your strengths, and do it with good people. Also, leave room for other things in your life so you can have balance and not burn out!

I went to law school because I was concerned about environmental degradation and wanted to be part of the solution. I love reading and writing, am very detail-oriented, and enjoy some healthy competition, so I settled on environmental law and policy as a way to marry my strengths and interests. The environmental challenges and tensions that initially “lit that fire” still persist, and continue to motivate me to become the best advocate I can be.

The environmental field being a broad one, I’ve worked in a range of and the diversity of my work – in terms of substance areas as well as the mix of litigation and transactional matters – keeps things interesting. I still learn something new every day, and that’s very gratifying.

But equally important is that fact that I really like and respect my colleagues. In sport and at work, having strong leadership and supportive peers can make all the difference in the quality of the experience. In my current position at the Attorney General’s Office and in my most recent job in private practice, I’ve been lucky to work with skilled attorneys who are good team players and who I consider friends as well as colleagues. People who, before delving into work matters, ask how my weekend was and genuinely listen to the answer. And they elevate my game; just as a goal in hockey is made sweeter by a crisp set-up pass from a teammate, a brief that is improved by colleague’s adept edits is all the more satisfying.

Finally, I’ve been fortunate to work with people who value and promote wellness. When I worked with Leslie Cadwell, she would encourage me to walk my dog during conference calls on sunny days, and once surprised me by sending a NutriBullet to my house so my family and I could sneak vegetables into our morning smoothies. Attorney General T.J. Donovan still makes time for basketball, and Chief Assistant Attorney General Sarah London and Environmental Division Chief Rob McDougall do marathon training runs at lunch. That sets the tone for a culture where people feel they have the space to get out and exercise and come back to their desks refreshed and more focused (and it kind of feels like slacking if you don’t!).

MK:  Lately, I’ve spoken & blogged often on increasing reports that civility among lawyers is no longer a thing, so much so that it might be a cause of many lawyers’ anxiety & stress.

Bigger deterrent to lawyers who are rude & obnoxious: contempt of court, PRB disciplinary action, or an actual penalty box to which a judge might banish them for 2 minutes during a hearing.  Or, do the rest of us just keep on “killing ‘em with kindness?”

Samantha Lednicky: The great thing about hockey is you can get a penalty in the heat of the moment but at the end of the game you always go through and shake everyone’s hand.  As a lawyer, I think it should be required to look opposing counsel in the eyes at the end of a hearing, shake their hand, and thank them for their civility—maybe if we knew this was coming we would all be more civil.

Alison Milbury Stone: The genius of the penalty box is the shame that comes from sitting behind the glass in plain view, watching helplessly as your teammates play on short-handed due to your bad decision. We’d have to figure out how to do this without leaving the client high and dry during a hearing (a particular challenge if there is no co-counsel), but I think you’re on to something here.

Shireen Hart: I have not found player yet that can’t be broken down with some good locker room banter.

Alison Bell:  I love the image of a penalty box in the courtroom; it will never happen, but I bet it would work!

MK: There are 4 of you.  We need 2 more to fill out a team.  For each of you, who are the 2 “dream teammates” you’d add to fill out the team?

Shireen Hart: Both are women with whom I currently play. One plays D and is the kind of player who stands right next to me until everyone clears the area. I like to kid myself that I actually need that kind of protection. And, it doesn’t hurt that she is truly a fierce defender with a great slap shot – the kind of shot where everyone in the puck’s path dives away from it. The other is a woman who was apparently born with skates on her feet and a stick in her hand. I am truly awed watching her on the ice. She can put the puck wherever she wants and score on demand, but 9 times out of 10, she’s going to make the pass to set up a teammate instead.

Samantha Lednicky:  Kendall Coyne because she’s a badass. She’s on the US women’s hockey team and competed this year in the NHL (previously all male) skills competition, placing as one of the fastest skaters.

Cale Makar because he won the Hobey Baker this year and two days later played in his first NHL game and scored a goal.

Alison Milbury StoneOh, this is a tough one. Since Sam and I are both forwards, Alison B. plays defense, and Shireen is a goalie, I’ll be practical in terms of the lineup and pick one forward and one D.

With my first pick in the fictional draft, I select Bruins defenseman and captain Zdeno Chara. “Big Zee” is hands down the hardest worker I’ve ever met, a really nice guy, and an intimidating 6’9” before he even puts on his skates. You don’t want to be digging a puck out of the corner when he’s on the other team.

I also pick my former teammate Danijela Rundqvist, previously a member of the Swedish national team. She is a pure talent, a really positive and encouraging teammate, and fun in a mischievous kind of way, which is good for the atmosphere in the locker room.

Alison Bell: I would add my two daughters, both great players, because there is nothing better than playing with your kids.

MK:  Last question: Stanley Cup finals: Bruins, Blues, Don’t Care?

Alison Milbury Stone:  Bruins ALL THE WAY!

Alison Bell: Bruins. I have never worn socks in my skates, because I read Bobby Orr’s book as a kid, and wanted to be like him.

Shireen Hart: Bruins in 6.

Samantha Lednicky: BRUINS.

Thank you all again!  And let’s hope you’re right about the Bruins!

Boston Bruins Decal

Related Posts

Prior to today, Heather Moreau shared her Route 66 adventure, Jeff Messina and Andrew Manitsky talked about their respective bands, and Molly Gray reflected on her days as a competitive skier.

Also, before I ever imagined a “Wellness Wednesday” 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.

Monday Morning Answers

Happy Memorial Day.

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Friday’s questions are herehere.  The answers follow today’s Honor Roll.

I stunk up the joint in yesterday’s Vermont City Marathon. As has become all too common for me, the first 18 or 19 miles weren’t an issue.  Then, the body stopped cooperating and I shuffled to the finish.

I spent those final miles and much of the post-race party telling myself, anyone, and everyone that it was my final marathon.  Never again am I putting myself through this!  Yet, I woke up this morning determined to find “a fast one” to run in early September before the deadline to qualify for the 2020 Boston Marathon.

So, depending on how you look at it:  either hope springs eternal, or, insanity is doing the same thing over & over and hoping for a different result.

Honor Roll

  • Matt AndersonPratt Vreeland Kennelly Martin & White
  • Penny Benelli, Dakin & Benelli
  • Geoffrey Bok, Esq.
  • Beth DeBernardi, Administrative Law Judge, VT Dept. of Labor
  • Erin GilmoreRyan Smith & Carbine
  • Bob Grundstein, Esq.
  • Mark HeymanGeneral Counsel, Logic Supply
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy, JB Kennedy Associates, Blogger’s Mom
  • Deb Kirchwey, Esq.
  • Elizabeth KruskaPresident-Elect (soon), Vermont Bar Association
  • John LeddyMcNeil, Leddy, & Sheahan
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Kevin LumpkinSheehey Furlong & Behm
  • Lon McClintock, Esq.
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Hal Miller, First American
  • Herb Ogden, Esq.
  • Jay Spitzen, Esq.
  • Zachary York, Vermont Superior Court, Chittenden Civil & Criminal

Answers

Question 1

You’re at a CLE.  You are re-reading Jake’s marathon diary because it’s so awesome. Still, your brain is vaguely aware of me saying things like:

  • it must be not be unreasonable;
  • it must be reduced to a writing that is signed by the client;
  • it must state whether expenses will be deducted before or after it’s calculated; and,
  • it must be based on the outcome of the matter.  If it’s based on an offer that the client rejects, at least one state’s Supreme Court has held that it’s unethical.

What was I discussing?

A contingent fee agreement.  See, this blog post and  V.R.Pr.C. 1.5(a) 1.5(c)

Question 2

By rule, a “prospective client” is one who, in good faith, discussed with a lawyer the possibility of retaining the lawyer.  Which is most accurate?

Per the rule, the lawyer shall not represent a client:

  • A.   with interests materially adverse to the prospective client.
  • B.   with interests materially adverse to the prospective client in the same or a substantially related matter.
  • C.  with interests materially adverse to the prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to the prospective client.
  • D.  None of the above.  We’ve yet to adopt any version of the ABA Model Rule on prospective clients.

This is Rule 1.18.  We adopted it in 2009 to address the fact that, under our old rules, prospective clients were neither fish nor fowl for purpoes of conflicts of interest.

Question 3

By rule, a lawyer may not settle a claim or potential claim for malpractice with an unrepresented client or former client.

  • A.  True.
  • B.  True, unless the client gives informed consent.
  • C.  True, unless the client gives informed consent, confirmed in writing.
  • D.  True, unless the client or former client is advised in writing of the desirability of seeking and is given a reasonably opportunity to seek the advice of independent legal counsel in connection with the matter.  See, Rule 1.8(h)(2)

Question 4

Having made this confession, it pains Me to say that I’m not a big fan of Taylor Swift’s new single.  Still, in her honor, one of these things is not like the other.   Which one?

The rule that requires a lawyer to:

  • A.  keep copies of advertisements for 2 years
  • B.  keep confidential information relating to the representation of client
  • C.  keep trust account records for 6 years
  • D.  keep the lawyer’s own funds separate from client funds

We repealed this requirement in 2009.  The others remain in the rules.

Question 5

He’s back!

There’s a lawyer who used to represent a woman whose real name is Stephanie Clifford.  This week, federal prosecutors alleged that the lawyer sent a “fraudulent and unauthorized letter” to Clifford’s literary agent in order to divert approximately $300,000 intended for Ms. Clifford.  Per Manhattan U.S. Attorney Geoffrey Berman:

  • “Far from zealously representing his client, [the lawyer] as alleged, instead engaged in outright deception and theft, victimizing rather than advocating for his client.”

You likely know the client by a name other than Stephanie Clifford.

Name the lawyer.  MICHAEL AVENATTI

Bonus: tell me the client’s more well-known name.  STORMY DANIELS

Among many other outlets, CNN has the latest here.

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