Wellness Wednesday: sleep, Julia Louis-Dreyfus, and Game of Thrones.

Sometimes I post early, sometimes I post late.  I guess I’m the Nice & Smooth of legal ethics bloggers.

Today I meant to post early.  After all, it’s Wellness Wednesday, a huge day for this blog.

Alas, I didn’t.  But that doesn’t mean I wasn’t thinking about you! Indeed, this post has been on my mind nearly all day.

I went to bed early last night.  I anticipated being up later, but the Bruins game proved anti-climactic so I went to bed.  To me, it was PERFECT sleeping weather.  Meaning, I slept with the windows open and the covers drawn.

Does this ever happen to you?  You’re sleeping so well that you’re actually aware of how well you’re sleeping as you sleep?  I swear it happens to me.  Not often, but on occasion. And last night was one of those occasions.

Then I woke up.  Raring to go.  The birds were singing and I felt good.  Sure, it was still a bit dark, but that was probably just the clouds.

Except it wasn’t.  It was dark because it was 3:30 AM.

That NEVER happens to me.  Yes, I like to get up early, but I define “early” as 5:30.  As good as I felt, I wanted my 2 hours of sleep back!   Then, the irony struck me.

In response to last week’s Wellness Wednesday post, a friend/lawyer/reader sent me Americans aren’t getting enough sleep and it’s killing usIt’s an opinion piece that Dr. Jonathan Fielding contributed to The Hill.  I found it fascinating, but scary.

Give it a read.  It cites various studies that indicate that a lack of sleep causes health problems.  And, contrary to popular opinion, our bodies struggle to recover from sleep deprivation.  Meaning, “I’ll work all night tonight because I know I can sleep late Sunday” is not scientifically valid.  And, as Fielding writes, “All-nighters push anxiety to clinical levels and even modest sleep reductions are linked to increased feelings of social isolation and loneliness.”

Folks, that’s attorney wellness.  Get your sleep.  Let your associates get theirs.

Alas, this morning, I didn’t fall back asleep.  Rather, I made the mistake of checking scores, then email and –  yada yada yada – the next thing I knew the coffee was brewing.

There was, however, a silver lining.

When I checked my email, I saw a notification that Professor Bernabe had posted a new blog. Given that the post focused on two topics near & dear to my blog –  the duty of competence & fictional lawyers – it was a great way to start the day! Check it out.  (My favorite voir dire (fictional or real) of an expert witness begins at the 8:13 mark in the video.)

The post put me back in a good mood, the early wake-up banished to the dusty corners of a memory bank that seems to consist of nothing but corners.  In other words, reading the post increased my well-being. Thanks Professor! Further evidence of why you’re always on the #fiveforfriday Honor Roll!

Reading the post also got me thinking: I haven’t blogged about tv or movie lawyers in a while. And, for me, doing so is a source of wellness.  So, I started searching the dusty corners – have I watched any blog-worthy fictional lawyers lately?

Not really.   Recently, I’ve been into HBO.  I re-upped a few weeks ago to catch up on Game of Thrones. When not catching up, I watched a bunch of episodes of Barry and 1.5 episodes of Big Little Lies. 

The former?  I know it has won a ton of awards, but I don’t love it.  The latter, I loved the book. Despite its critical acclaim, I’m worried that the show won’t live up.  So, as with most of my relationships, I’m starting by showing the show a lot of lukewarmth.

Besides those two, I binged on Veep.  More accurately, re-binged, I LOVE that show.  JLD has long been a favorite.  Of course, I liked her in Seinfeld.  And, as should be obvious by her numerous appearances in my real-life and #fiveforfriday quizzes, I thought she was fantastic as the ethically-challenged prosecutor Maggie Lizer in Arrested Development. 

But she ROCKS as Selina Meyer.  (some of you can probably guess who she reminds me of)  And, Jonah, Gary, and Richard make me laugh out loud.

Alas, Veep provides no lawyers to write about.  Yes, Selina was a lawyer before entering politics.  And Richard holds a doctorate in constitutional law and is an expert on the electoral college.  Still, nothing inspired me to write about either.

That leaves Game of Thrones.  No, no character’s official profession is “lawyer.”  I submit, however, that Samwell Tarly is the show’s functional equivalent thereof.  If anything, he’s a veritable expert in parentage actions! Still, he’s nothing to blog home about.

So, having increased my wellness by using legal ethics as an excuse to write about tv shows, and having started to blather on even further than could be fairly described as “rambling,” I’ll get to the point.

I want to know what my readers think:  when it’s all said and done, who will sit on the Iron Throne?

The latest Vegas odds are here.  I can’t believe the line on Baelish. Intriguingly short!  And, my poll is here, with candidates listed in the same order as the betting odds. I was tired of typing, so I cut off the list after Brienne of Tarth (and actually left off a few between her and Varys).  Or, you can email me your theory/prediction.

I’m not sharing my vote.  I do have one prediction to share though: the Night King and his ice Dragon will not be at Winterfell Sunday night.  I predict they’ve headed south to attack King’s Landing.

Now, either vote, send me your prediction, or go to sleep.   It’s all wellness!  Even weller if you do all 3.

Hope you enjoyed your Wednesday.

P.S. if you can’t sleep, check out an old post on unethical lawyers from an HBO show: The Night Of:  Who Gets Disbarred First?

Image result for game of thrones images

Monday Morning Answers

How Sweep it is!

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

Honor Roll

 

Answers

Question 1

Per the rules, the duty of diligence likely requires a practitioner in small firms to have which of the following?

  • A.    malpractice insurance
  • B.    a succession plan.   See, Rule 1.3, Comment [5]
  • C.    a cloud-based file management system
  • D.    an electronic trust accounting system

Question 2

True or false.

A Vermont lawyer violates the Rules of Professional Conduct by providing a client with advice on the scope & meaning of Vermont’s marijuana laws – for example, by advising a client in connection with the client’s operation of a medical marijuana dispensary.

FALSE – See, Rule 1.2(d), Comment 14

Question 3

Which doesn’t belong with the others?

  • A.   the client intends to provide false testimony
  • B.    the testimony relates to an uncontested issue
  • C.    the testimony relates to the nature and value of legal services rendered in a case
  • D.   Trick question.  Each is in the same rule.

A is in Rule 3.3, the rule that governs candor to a tribunal.   B&C are exceptions to Rule 3.7, the rule that prohibits a lawyer from serving as an advocate at a trial in which the lawyer is likely to be a necessary witness.

Question 4

Lawyer called me with an inquiry. I listened, then said “the duty to deliver it kicked in as soon as the representation ended.  Otherwise, there’s no set time period to keep it.” The lawyer likely called me to discuss:

  • A.   Conflicts of Interest
  • B.   Trust accounting
  • C.   File Retention.  See, Rule 1.16(d).  Upon termination of a representation, a lawyer shall surrender papers and property to which the client is entitled.
  • D.  Noisy Withdrawal

Question 5

Dragons remind me of Game of Thrones.

Last year, a New York lawyer was sued for allegedly helping a client to commit a fraudulent transfer of assets.  The lawyer responded by filing a motion in which he sought a particular type of trial.  What type?

TRIAL BY COMBAT.  The story is here.

Five for Friday #126

Welcome to #126!

So, 126 . . . no, that’s not how many runs the Red Sox scored against the Yankees last night, it only seems that way! Go Sox!

Back to the business at hand.  Here’s my pick for this weekend:  the Lake Champlain Dragon Boat Festival. Not only is it a fantastic event, but it gives me an opportunity to talk about two of my favorite topics: the duty of competence, and, lawyers pursuing wellness by doing fascinating non-lawyerly things.

Andy Strauss is Vermont’s Licensing Attorney.  He’s also a member of Dragonheart Vermont, the organization that puts on the Dragon Boat Festival. Last month, Andy and many of his teammates competed in the International Dragon Boat Federation’s Club Crew World Championships in Hungary.

The World Championships!!! I’d say that’s competent! And an example of a well lawyer!  Congrats Andy!

Onto the quiz!

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception: if you must, open book for Question 5 . But, we try to play that one straight.
  • 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

Per the rules, the duty of diligence likely requires a practitioner in small firms to have which of the following?

  • A.    malpractice insurance
  • B.    a succession plan
  • C.    a cloud-based file management system
  • D.    an electronic trust accounting system

Question 2

True or false.

A Vermont lawyer violates the Rules of Professional Conduct by providing a client with advice on the scope & meaning of Vermont’s marijuana laws – for example, by advising a client in connection with the client’s operation of a medical marijuana dispensary.

Question 3

Which doesn’t belong with the others?

  • A.   the client intends to provide false testimony
  • B.    the testimony relates to an uncontested issue
  • C.    the testimony relates to the nature and value of legal services rendered in a case
  • D.   Trick question.  Each is in the same rule.

Question 4

Lawyer called me with an inquiry. I listened, then said “the duty to deliver it kicked in as soon as the representation ended.  Otherwise, there’s no set time period to keep it.” The lawyer likely called me to discuss:

  • A.   Conflicts of Interest
  • B.   Trust accounting
  • C.   File Retention
  • D.  Noisy Withdrawal

Question 5

Dragons remind me of Game of Thrones.

Last year, a New York lawyer was sued for allegedly helping a client to commit a fraudulent transfer of assets.  The lawyer responded by filing a motion in which he sought a particular type of tria.  What type?

 

 

 

 

Monday Morning Answers #83

Friday’s questions are HERE.

Spoiler alert: the answers follow today’s Honor Roll in 5, 4, 3, 2, 1……if you don’t know, now you know.

Honor Roll

Answers

Question 1

There’s only ONE thing that the rules require Vermont lawyers to keep for a period of years.  What is it?

  • A.   Copies of advertisements for 2 years after they first run.
  • B.   Client’s file for 7 years following the termination of the representation of Client.
  • C.   Trust account records of funds held for Client for 6 years following the termination of the representation of Client.  Rule 1.15(a)(1).
  • D.   Client’s confidences & secrets for 7 years following the termination of the representation of client.

Notes:  A is incorrect because the rule was repealed years ago.  B is NOT CORRECT.  The file must be delivered upon the termination of the representation.  See, Rule 1.16(d).  It’s a good idea to make a copy for yourself, but the rules do not require you to do so.  Your carrier probably does though.  Finally, D is not correct.  We stopped using the word “secrets” in 1999.  Also, information relating to the representation of a former client is governed by Rule 1.9(c) and is not subject to a 7-lear limit.

Question 2

Attorney called.  Among other questions on a single topic, she asked me whether the rules define “person of limited means.”  What general topic did Attorney call to discuss?

The pro bono rules.  Per rule 6.1, a majority of the 50 hours should go to providing representation to persons of limited means, or, to organizations that primarily address the needs of persons of limited means.  For more, including the definition of “persons of limited means” see this blog post.

Question 3

Speaking of encrypting email, if there is a duty to encrypt, it flows from two duties set out in the rules. One is the duty to maintain the confidentiality of information related to the representation.  What’s the other?  The duty to:

  • A.  Safeguard client property & funds
  • B.  Provide a client with diligent representation
  • C.  Provide a client with competent representation.  See, Rule 1.1.  Also, the link to my blog on encrypting email was included with the questions.  It outlines how the duty of competence dovetails with the duty to maintain confidences to include a duty to act competently to safeguard information relating to the representation of a client.
  • D.  Communicate with a client

 

Question 4

Lawyer represents Client.   Shortly before trial, opposing party discloses Witness. Lawyer determines that he has a conflict that prohibits him from representing Client in a matter in which Witness will testify for Opposing Party.

Lawyer moves to withdraw and discloses the conflict in both his motion and the argument on the motion.  The court denies the motion and Lawyer represents Client at trial.  Witness testifies, Lawyer cross-examines Witness.

True or False: Lawyer violated the Vermont Rules of Professional Conduct by representing Client at trial and cross-examining Witness.

False.  Rule 1.16(c).  (“When ordered to do so by a tribunal, a lawyer shall continue representation nothwithstanding good cause for terminating the representation.)

Question 5

I’m not making this up.

In Vermont, V.R.Pr.C. 3.1 is the equivalent of civil rule 11.  It prohibits lawyers from asserting a position unless there is a non-frivolous basis for doing so.

I’m not making this part up either.

In 2014, a New York lawyer was sued for allegedly helping a client to fraudulently transfer assets.  Let’s call the lawyer “Defendant.”

In 2015,  Defendant filed a motion in which he requested the he and plaintiff either have a duel or “trial by combat.”  When questioned by the media, he responded that “”I have a good-faith belief that this is still part of our state constitution. I want the law to be clear on this issue, and I have every right to ask for this.”

What’s Defendant’s favorite television show?

Game of Thrones.

The lawyer’s request was denied.  In an article on the denial, Staten Island Live has a fascinating quote from Attorney Richard Luthmann:

  • “I believe that the court’s ruling is based upon my adversaries’ unequivocal statement that they would not fight me,” said Luthmann, who’s based in Castleton Corners.  “Under my reading of the law, the other side has forfeited because they have not met the call of battle. They have declared themselves as cowards in the face of my honorable challenge, and I should go to inquest on my claims.”

Trial by Combat

 

 

 

Legal Ethics, Cloud Storage, and . . . Game of Thrones?

So, you want to store client data in the cloud? Excellent! Odds are it’ll make you more efficient.

What are your duties under the rules of professional conduct?  Good question.

In my view, a lawyer has a duty to take reasonable precautions to protect client information from unauthorized access or disclosure.   The duty applies no matter the “place” that the information is stored.  That is, the cloud is a “place to store client information” in the exact same sense as a storage facility out on the old county road.

For more, here’s my post The Cloud: What Are Reasonable Precautions?

Now, about that headline.

Jeff Bennion has a great post over at Above The Law: How Are Lawyers Supposed  To Have More Security Than HBO?  It’s well-worth the few minutes you’ll need to read it.  A summary of his tips:

  • Know your duties
  • Don’t make unnecessary copies of things
  • Know that some client data is more sensitive than other data
  • Secure all devices & places where client data is stored.

Only 109 hours, 44 minutes until The Dragon & The Wolf.  Until then, just as I’m sure you’ll take reasonable precautions to avoid spoilersdo the same to avoid the inadvertent or unauthorized disclosure of client information.

Thrones

 

 

Monday Morning Answers: Week 47

The answers follow the Honor Roll.  If you’d like to review the questions before you see the answers, go HERE.

HONOR ROLL

Red = Perfect Score

  • Matthew Anderson, Pratt Vreeland Kennelly Martin & White
  • Bridget Asay, Solicitor General, Office of the Attorney General
  • Laura Gorsky, Law Office of David Sunshine
  • Robert Grundstein
  • Anthony Iarrapino, Iarrapino Law
  • Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
  • Elizabeth Kruska, Marsicovetere Law
  • Pam Marsh, Marsh & Wagner
  • Hal Miller, First American
  • Herb Ogden, Ogden Law
  • Scott Rowland, Vermont Law School
  • Kane Smart, Downs Rachlin Martin

ANSWERS

  • Question 1Several commentators and experts, including the ABA’s Standing Committee on Ethics & Professional Responsibility, have opined that a prosecutor’s ethical duty to disclose information that tends to negate the guilt of the accused:
    • A.  is not as broad as a prosecutor’s duties under Brady v. Maryland.
    • B.  is more broad than a prosecutor’s duties under Brady v. Maryland.
      The ABA Formal Advisory Opinion is HERE
    • C.  does not apply until a “critical stage” of the prosecution
    • D.  does not apply in cases where there is little or no possibility of incarceration

    Question 2

    Which of the following is most often cited as a concern with authorizing payments to be credited to a trust account via ACH transfer?

    • A.  The potential for the originator to reverse the transfer.  Tip: I’ve been informed that some banks will set up your trust account in such a way as to prevent “reverse” ACH transactions.
    • B.   Scams designed to take advantage of the prevalence of ACH transfers.
    • C.   Lawyers using ACH transfers as “floats” in the trust account
    • D.  ACH transfers can facilitate the unauthorized practice of law

    Question 3

    With respect to the rules & fees, which is different than the others and, arguably, does not belong:

    • A.  The amount of the fee and the results obtained.
    • B.  Whether the fee is fixed or contingent.
    • C.  The reputation & ability of the lawyer(s) performing the services
    • D.  The fact that the client paid the fee.   See, Rule 1.5(a)The fact that the client paid is not one of the listed factors to be considered in assessing the reasonableness of a fee.  Further, the fact that the client paid does NOT mean that the fee is reasonable under Rule 1.5.

    Question 4

    Lawyer called me with an inquiry. It related to a matter involving Sansa & Baelish.  I listened and replied:

    • “I didn’t know you represented Sansa. That’s wild.”

    Then, I said:

    • “Ok, I’ll be quick.  The rule says 3 things:  First,don’t state or imply to Baelish that you’re disinterested.  Second, correct any misunderstanding Baelish has as to your role. And, third . . .”

    What’s the third thing I told Lawyer?

  • In this hypo, my question to Lawyer was “Is Baelish represented.”  Given that the answer was “no,” Baelish is an “unrepresented person.”  Thus, the third and final thing I told Lawyer must have been not to give Baelish legal advice, other than the advice to seek counsel.  See, Rule 4.3. Question 5

    In honor of Associate Justice Harold “Duke” Eaton, chief Cubs fan in the Vermont legal community .  . .

    . . . name the former United States Supreme Court Justice who made the news last weekend by attending Game 4 of the World Series.

Retired Justice John Paul Stevens attended Game 4 of the World Series. He also attended Cubs World Series games in 1929 and 1932, including the game in which Babe Ruth famously “called his shot.”

  • Bonus

    Name the TV show referenced in this week’s quiz. (Not knowing it will not prevent you from achieving a perfect score.)

     

    Sansa and Baelish are characters in Game of Thrones.

     

    thrones