Five for Friday #280

Welcome to Friday and the 280^th legal ethics quiz!

A few years ago, Andrew Manitsky and I did a series of CLEs on the duty of candor in negotiations. We often discussed “paltering,” which is the active use of the truth to deceive.  As an example, check out  this post about the time that Jennifer Emens-Butler and I paltered to fellow lawyers at a VBA meeting.

Or consider this:

I’ve seen Taylor Swift live in concert.

100% true statement.

Alas, a potential ethics violation.  Let me explain.

Paltering’s tie to legal ethics is through Rules 4.1 and 8.4.  Rule 4.1 states that “in the course of representing a client a lawyer shall not knowingly make a false statement of fact or law to a third person.”  A comment makes clear that “misrepresentations can . . . occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements.”

So, back to my statement: I’ve seen Taylor Swift live in concert.

Again, true.

But, after you check out my ticket stub, I’ll let you decide whether my statement violates Rule 4.1.

As the warm-up to the warm-up, I think she played 4 or 5 songs. But I saw them!

Now, speaking of Taylor Swift concerts[1], I’m smack dab in the middle of CLE season. Yesterday I presented to the Chittenden County Bar Association. As I’ve been doing, I asked if anyone had gone or plans to go to a Taylor Swift Eras Tour concert.  After all these weeks of CLE, finally a “yes!!”  The lawyer has tickets for the July 1 show in Cincinnati. The news made me wonder if I should use today’s intro to share my favorite Era.

I’m not going to.  Honestly, it’s too daunting.  Seriously.  A few years ago, when a buddy asked my all-time favorite Red Sox player, I agonized trying to decide.  Like, literal heartburn!!  As a grown man!! Over something that should be of ZERO consequence to anyone older than 13.

In short, my fandom is complicated.  Which is why, for now, I’m not committing to a favorite Era.

Here’s what I will commit to: Reputation is in my top 3. Also, I can say beyond a reasonable doubt that, if I were to attend a show, I’d hope that Getaway Car was one of the two “surprise songs.[2]” It’s (likely) my favorite of her songs and I’m pretty sure I lived the lyrics from the perspective of the person she sings to. Also, I think it would be AWESOME if Picture to Burn was a surprise song. After all, it’s the only song I remember from that time that . . .

I saw Taylor Swift live in concert.

Onto the quiz!

Rules

• None.  Open book, open search engine, text-a-friend.
• Exception:  Question 5.  We try to play that one honestly.
• 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 consider sharing the quiz with friends & colleagues
• Share on social media.  Hashtag it – #fiveforfriday

Question 1

This week’s picture question features Dwight Schrute from The Office.  Later today, I’m using the picture during a CLE.  Which of the 7Cs of Legal Ethics do you think I’ll be addressing when this slide is on the screen?

Question 2

If a lawyer in a private firm has a conflict, is the conflict imputed to all other lawyers in the firm?

• A.  No. Vermont’s rule allows the firm to screen the lawyer, no matter the type of conflict.
• B.  Yes. Vermont’s rule does not allow for screening in any situation.
• C.  Yes, unless the conflict arises from a personal interest of the disqualified lawyer that does not create a significant risk of materially limiting the representation of the client by another lawyer in the firm. In this situation, Vermont’s rules allow screening.

Question 3

The duty of candor to a tribunal requires a lawyer to take “reasonable remedial measures” upon learning that a client or a witness called by the lawyer presented false evidence. A comment suggests that the first step is to:

• A.  Consult with the client about correcting the falsehood.
• B.  Move to withdraw.
• C.  Disclose the falsehood to the tribunal.
• D.  Ask the court to meet in camera, without opposing counsel present.

Question 4

Lawyer, a civil litigator, called with an inquiry. I listened, then responded:

“If it’s to gain an advantage, don’t do it, don’t threaten to do it, don’t participate in doing it.”

Do what?

Question 5

Later today, I’m presenting a CLE for the Federal Bar Association. The topic is “Legal Ethics in Criminal Practice.”  The audience will consist of criminal defense lawyers and federal prosecutors. Which made me think of this question.

The first person ever to win 4 consecutive Emmy Awards won them for Outstanding Supporting Actor in a Comedy. The awards reflected the actor’s work playing an assistant district attorney on a show that aired from 1984-1992.  The actor also appeared in the 2023 sequel, this time as a public defender. In the sequel, the judge is the daughter of the judge from the original.  Sadly, to me, the original bailiff is not in the sequel.  Oooo-kay.

Name the show.

Bonus: Name the actor who won 4 Emmys in the original.

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[1] Or, perhaps, “Speak[ing] Now of Taylor Swift concerts.”

[2] The Eras Tour set-list includes 44 songs that span the albums – Eras – of her career. 42 songs are the same each show. Each show includes two “surprise songs.”  Songs that are not otherwise in the set-list and that Swift performs acoustically.  Surprise Songs are not repeated at other shows.  So, I’m out of luck.  For one, I don’t have plans to attend a show.  For another, even I was to magically obtain a ticket, Getaway Car, was a “surprise song” at one of the NYC shows.

Are you sure that opposing counsel is being deceitful?

Rod Smolla is the President of Vermont Law & Graduate School.  Last week, Rod was the guest speaker at the Professional Responsibility Program’s (PRP) annual meeting.  In my opinion, Rod’s presentation served as a model of the duty of competence that all lawyers would do well to emulate.  I also believe that it provides insight into civility, professionalism, and a lawyer’s perception of an adversary’s conduct.

With dozens of PRP members serving as “justices” and peppering him with questions, Rod argued two cases that are pending before the United States Supreme Court: Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina.  Each case involves the use of race as a factor in college admissions. The Court heard argument last fall and decisions should be released soon.

To be clear, Rod argued both sides. That’s right: without notes, Rod spent 10-15 minutes making arguments in support of the positions taken by Students for Fair Admissions, then another 10-15 as if representing Harvard and UNC.

You would not have thought that Rod short-changed either client.  Nor would you have been able to discern his personal views on the issues before the Court.  Rod knew the facts, knew the law, and made effective arguments for each side. 

To me, knowing both sides of a matter is an aspect of competence.[1]  I also consider it critical to complying with the duty to provide a client with candid advice.[2]  A duty that, as I blogged here, includes delivering advice that the client might find unpalatable.

That Rod’s presentation exemplified competence is easy to grasp.  What you’re probably wondering is “Mike, what does it have to do with civility & professionalism?”  Great question!

In April, I asked whether Vermont’s legal profession has a civility problem and, if so, what should be done about it.  The post was spurred by Andrew Manitsky’s efforts as President of the Vermont Bar Association.  Andrew has made civility a focus of his presidency.  As such, the VBA conducted a civility survey earlier this year.  I referenced the results in my post.  Andrew wrote more about them in his most recent President’s Column for the Vermont Bar Journal.[3]

The survey asked respondents to identify the types of unprofessional behavior they’d experienced over the previous six months. 49% reported having dealt with lawyers who misrepresented or stretched the facts.  34% indicated that they’d experienced lawyers who either misrepresented the law or made baseless legal arguments.[4]

I do not doubt that there are lawyers who stretch or misrepresent the facts and the law. Having screened complaints for 9 of the past 11 years, I’ve seen it.  Not often, but I have.  However, on this issue, there’s something else that I’ve noticed over the past year.

It’s not uncommon for lawyers to contact me to ask about what they perceive to be another lawyer’s lack of candor. Basically, they’re looking for a “gut check.”  It’s difficult for me to respond because I don’t know the entire case or, more importantly, each side of the story. So, it’s not uncommon for me to ask, “why do you think that was deceitful?” 

Lately, I’ve been struck by how frequently the explanation of “why it’s deceitful” doesn’t demonstrate deceit as much as it demonstrates a fair disagreement as to what happened and what the law requires in response. In other words, my anecdotal experience has been a perceived uptick in what boils down to “I don’t agree. So, they must be lying.”

Maybe. 

But maybe not.  Not every disagreement means that one side is lying. Which gets me back to President Smolla’s example.

Rod made persuasive arguments for each side.  He was able to do so because he thoroughly understood the facts that helped and hurt each side, the law that helped and hurt each side, and the strengths & weaknesses of each side’s arguments. To me, that’s competence.[5]

Again, my recent experience is anecdotal and the uptick I perceive likely lacks statistical relevance.  However, I’ve started to wonder whether some of the reports that “other lawyers lie about the facts and law” might not reflect a lack of civility & professionalism. Rather, I wonder whether a percentage, however small, might reflect a failure to understand both sides of the matter.[6]  

In sum, don’t hesitate to call for a “gut check.”  But, if you do, don’t be surprised if I ask whether opposing counsel’s “false statement” is exactly the statement you’d be making if in their shoes.[7]

Be like Rod.

And, as always, let’s be careful out there.

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[1] See, V.R.Pr.C. 1.1.

[2] V.R.Pr.C. 2.1 requires a lawyer to “exercise independent professional judgement and render candid advice.”

[3] Andrew’s President’s Column begins on page 5.

[4] There were several other choices for respondents to select.  However, these two examples of unprofessional behavior are relevant to this post.

[5] Obviously, it wouldn’t work in a real-life setting for numerous reasons, but I think it’d be a fantastic experiment to have two lawyers arrive for a contested trial or argument not knowing which side they’d be assigned to represent. It reminds me of a saying in coaching that’s reserved for the coaches who most impress other coaches: that coach can beat yours with theirs and theirs with yours.

[6] I’m not suggesting that the failure is intentional or borne of an ill motive. It simply could be a lawyer who is so invested in their client’s position as to lose track of the axiom about which, as kids, the First Brother and I often stressed to our parents: there are two sides to every story & argument.  

[7] Don’t worry if your answer is “yes.”  First, our conversation is confidential.  Second, and more importantly, it will give you the chance to sing the first line of the chorus to Taylor Swift’s Anti-Hero to me.  “It’s me, hi, I’m the problem it’s me.”  That’d be a fantastic memory for us to have. Yes, this footnote was but a lame excuse to add to the list of Taylor Swift songs I’ve referenced on this blog. Also, congratulations on making it to footnote 7 of this post!

Tuesday Morning Honors #277

Happy Tuesday!

Friday’s questions are here.  The answers appear after the Honor Roll.  

Following up on the intro to the quiz, I have a confession: I watched Succession in real-time. The writers crushed it! I predict it will go down as one of the greatest series finales in television history.

Side note: I had no idea so many of you were Succession fans!  Further, I think every single person who submitted answers this week got Question 5 correct.  So, here’s a gift from me to start the work week:

This is the best tiktok I’ve seen in months pic.twitter.com/myhw2Lr1oH

— David Gardner (@byDavidGardner) May 27, 2023

Enjoy the sunshine!

PS: thank you to the Honor Roll member who reminded me that I didn’t need to worry about posting on a federal holiday.

Honor Roll

• Karen Allen, Karen Allen Law
• Matthew Anderson, Pratt Vreeland Kennelly Martin & White
• Alberto Bernabe, Professor, UIC School of Law
• Penny Benelli, Dakin & Benelli
• Andrew Delaney, Martin Delaney & Ricci Law Group
• Heather Devine, Tarrant Gillies Shems
• Benjamin Gould, Paul Frank + Collins
• Robert Grundstein
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Douglas Keehn, Assistant Attorney General, Medicaid Fraud & Residential Abuse Unit
• Deborah Kirchwey, Esq.
• Elizabeth Kruska, Past-President, Vermont Bar Association
• John Leddy, McNeil Leddy & Sheahan
• Kevin Lumpkin, Sheehey Furlong & Behm
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Herb Ogden, Esq.
• Jacob B. Perkinson, Esq.
• Lisa Penpraze, Assistant United States Trustee, Department of Justice
• Keith Roberts, Darby Kolter & Roberts
• Jim Runcie, Ouimette & Runcie
• Brice Simon, Breton & Simon
• Jonathan Teller-Elsberg, Staff Attorney, New Hampshire Legal Assistance
• The Honorable John Valente, Vermont Superior Judge
• Brendan Walsh, Quantum Leap Capital

ANSWERS

Question 1

I took this picture years ago in South Hero. At CLEs, I use it as a visual when discussing one of the 7 Cs of Legal Ethics.  Which one?

Conflicts.  To me, the sign provides two potential directions. I like to imagine one arrow as the direction that competent & diligent representation would point the lawyer on the client’s behalf.  If anything else pulls the lawyer in the other direction – whether duties to another client, a former client, a third person, or a personal interest – then the lawyer might have a conflict.

Question 2

Math.

There is a rule that requires lawyers to keep records of trust account funds for X years.

There’s another rule that suggests that lawyers should provide Y hours of pro bono services per year.

What is X + Y?

• A.   56  X = 6, V.R.Pr.C. 1.15(a)(1).  Y = 50, V.R.Pr.C. 6.1.
• B.   57
• C.  66.
• D.  67

Question 3

A comment to one of the rules indicates that the rule “contributes to the proper functioning of the legal system” by doing three things.  The first two are protecting “against possible overreaching by other lawyers in the matter” and preventing “interference by those lawyers with the attorney-client relationship.”  What does the rule prohibit?

• A.   Knowingly making a false statement of fact or law to a third person.
• B.   Communicating with a represented person on the subject of the representation.  V.R.Pr.C. 4.2, Cmt. [1].
• C.   Knowingly making a frivolous discovery request.
• D.   Ex parte communications with a court.

Question 4

Lawyer called with an inquiry. I listened, then responded:

• “There’s no rule that specifically prohibits it. But the fee must be reasonable, you must comply with the rule on business transactions with a client, and you should consider whether it would create a personal interest that would materially limit your ability to provide the client with competent and candid legal advice.”

Given my response, it’s most like that Lawyer called to ask about:

• A.  a contingent fee.
• B.  representing a family member.
• C.  withdrawing from representing a client so as to start a romantic relationship with the client.
• D.  accepting an ownership interest in a client’s business as payment for legal fees. (I thought I’d blogged about this before. Apparently, I haven’t.  I’ll do so soon.)

Question 5

Earlier this year, Attorney General Merrick Garland testified before the United States Senate on the Justice Department’s long-running investigation of Ticketmaster.  The questions included questions about ticket sales for a famous singer’s current tour.

As it turns out, the AG is a huge fan of the singer and listens to the songs on the singer’s most recent album in the order suggested by his daughter. In an interview with The Wall Street Journal, the AG’s chief speech writer confirmed that the AG often drops references to the singer in public comments.  Indeed, according to Above The Law, when asked if he had managed to secure tickets for the current tour, Attorney General Garland replied, “That is a delicate question.”

Name the singer.

As reported by the Wall Street Journal and Above the Law, Attorney General Garland is a Swiftie

Monday Morning Honors #276: Please disbar me from making Kentucky Derby picks.

Happy Monday!  

Friday’s questions are here.  The answers follow today’s Honor Roll.  Special welcome to first time Honor Roll member Doug Keehn!

Also, kudos to former VBA President Elizabeth Kruska.  As you might recall from this 2018 post, Liz and her husband Wesley Lawrence are horse racing aficionados.  On Friday, Liz texted me her Kentucky Derby picks: Mage, Angel of Empire, and Disarm.  They came in first, third, and fourth! 

Well done, Liz!

How’d my picks do?

Well, here’s a hint: Liz sent her picks in response to a text in which I informed her that my brother had commenced formal proceedings to disbar me from making Kentucky Derby picks.

In Friday’s introduction to the quiz, I picked Tapit Trice, Practical Move, and Forte.  Shortly after I made my picks, Practical Move scratched, as did Forte on Saturday morning. 

Yes! Two of the horses I picked didn’t even run the race!

Meanwhile, the third, Tapit Trice spent much of the race leisurely patrolling last place, before eventually finishing 7th, approximately 15 minutes behind the leaders.

My picks were blatant violations of the horse wagering equivalents of the duties of competence & diligence!

Honor Roll

• Karen Allen, Karen Allen Law
• Matthew Anderson, Pratt Vreeland Kennelly Martin & White
• Alberto Bernabe, Professor, UIC School of Law
• Penny Benelli, Dakin & Benelli
• Andrew Delaney, Martin Delaney & Ricci Law Group
• Benjamin Gould, Paul Frank + Collins
• Robert Grundstein
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Douglas Keehn, Assistant Attorney General, Medicaid Fraud & Residential Abuse Unit
• Jeanne Kennedy, JB Kennedy Associates, Mother of the Blogger
• Patrick Kennedy, Amazon Web Services, The First Brother
• Deborah Kirchwey, Esq.
• Elizabeth Kruska, Past-President, Vermont Bar Association
• John Leddy, McNeil Leddy & Sheahan
• Pam Loginsky, Deputy Prosecuting Attorney, Pierce County (WA)
• Kevin Lumpkin, Sheehey Furlong & Behm
• Jeff Messina, Messina Law
• Herb Ogden, Esq.
• Christopher Perkett, OP Law
• Joseph Strain, Marsicovetere & Levine
• Jonathan Teller-Elsberg, Staff Attorney, New Hampshire Legal Assistance
• Honorable John Valente, Vermont Superior Judge
• Jason Warfield, JD
• Brendan Walsh, Quantum Leap Capital

ANSWERS

Question 1

Which word, that’s one of the 7 Cs of legal ethics, properly fills in the blank in this comment to one of the rules?

“While normally it is impermissible to __________ the lawyer’s own funds with client funds, paragraph (b) provides that it is permissible when necessary to pay services charges or other fees on the account.”

Commingle.  See, V.R.Pr.C. 1.15, Cmt. [2].

Question 2

The word “client” is not one of my 7 Cs of Legal Ethics.  I suppose it should be!

Anyhow, there are several rules whose titles reference specific types of clients.  Which is NOT a type of client specifically mentioned in the title to a rule?

• A.           Current.
• B.           Deceased.
• C.           Former.
• D.           Prospective.

Rules 1.7, 1.9, and 1.18 set out the duties owed to current, former, and prospective clients.  There is no rule that addresses deceased clients.

Question 3

Lawyer contacted me with an inquiry.  Quoting the rule, my response began as follows:

“Under the rule, your first duty is to, ‘as far as reasonably possible, maintain a normal client-lawyer relationship with the client.’”

Given my response, Lawyer called to discuss a client ____________:

• A.  who had filed a disciplinary complaint against the lawyer.
• B.  whose capacity to make adequately considered decisions in connection with the representation is diminished.  See, V.R.Pr.C. 1.14.
• C.  who provided false testimony to a tribunal.
• D.  who the lawyer reasonably believed, without knowing for sure, intended to use the lawyer’s services to commit a crime or fraud.

Question 4

Attorney contacted me with an inquiry.  I listened, then responded:

“There are 3 exceptions.  One is if the testimony relates to an uncontested issue. Another is if the testimony relates to the nature and value of legal services rendered in the case.  The last is if disqualification will result in substantial hardship to the client.”

Given my response, Attorney contacted me because Attorney __________:

• A.  reasonably believed that they had become a necessary witness.  See, V.R.Pr.C. 3.7.
• B.  mid-trial, learned that a former client would be the next witness to testify for the opposing party.
• C.  had been subpoenaed to give evidence against a former client.
• D.  All the above.  The rule mentions each scenario.

Question 5

A few months ago, news broke that a company’s former top in-house lawyer has cooperated with the federal prosecutors who are investigating the company’s much publicized collapse.  Apparently, the lawyer did not disclose the company’s criminal conduct before the company’s November collapse. See, V.R.Pr.C. 1.13.

Two weeks ago, Above The Law posted an article under the headline “Taylor Swift Is A Better Lawyer Than You.”  Swift reportedly turned down $100 million to endorse the company that is referenced in the first paragraph.  According to a lawyer who is representing plaintiffs who are suing the company, Swift rejected the company’s offer after asking “Can you tell me that these are not unregistered securities?” 

Competence indeed!

Name the company.

FTX.  The Above the Law post about Taylor Swift is here.

Five for Friday #276

Welcome to Friday and the 276^th legal ethics quiz!

This week is Well-Being Week in Law. Conceived and promoted by the Institute for Well-Being in Law, the event’s goals are “to raise awareness about mental health and to encourage action and innovation across the profession to improve well-being.” 

Each day focuses on a different aspect of wellness:

Today’s focus is Emotional Well-Being.  In this video, I share thoughts on:

• emotional intelligence and emotional IQ;
• accepting that we’ll experience negative emotions;
• remembering “W.I.N.” when responding to negative emotions;
• winning our 3-feet of influence; and,
• finding and modeling positive & productive responses to negative emotions.

The video references my blog post W.I.N. your 3-feet of influence.

Finally, per tradition, the video includes my Kentucky Derby picks. 

The week’s quiz number tempts me to play some combination of the 2, 7, and 6 horses.  Yes – the odds suggest that if they come in, I might not have to come back to work on Monday.  Still, I’m not going with those horses. Instead, in no particular order, I like Tapit Trice, Practical Move, and Forte.  For my long shot, I’ll take Forte’s half-brother, Raise Cain.  

So, the official pick is a box trifecta of the 5, 10, 15, and 16. 

Watch the video to learn how I (weakly) connect their numbers to the quiz number.

Have a great weekend!

Onto the quiz!

Rules

• None.  Open book, open search engine, text-a-friend.
• Exception:  Question 5.  We try to play that one honest.
• Unless stated otherwise, the Vermont Rules of Professional Conduct apply.
• Please do not post answers as a “comment” to this post.
• E-mail answers to michael.kennedy@vermont.gov
• Team entries welcome, creative team names even more welcome.
• I’ll post the answers & Honor Roll on Monday,
• Please consider sharing the quiz with friends & colleagues.
• Share on social media.  Hashtag it – #fiveforfriday.

Question 1

Which word, that’s one of the 7 Cs of legal ethics, properly fills in the blank in this comment to one of the rules?

“While normally it is impermissible to __________ the lawyer’s own funds with client funds, paragraph (b) provides that it is permissible when necessary to pay services charges or other fees on the account.”

Question 2

The word “client” is not one of my 7 Cs of Legal Ethics.  I suppose it should be!

Anyhow, there are several rules whose titles reference specific types of clients.  Which is NOT a type of client specifically mentioned in the title to a rule?

• A.            Current.
• B.            Deceased.
• C.            Former.
• D.            Prospective.

Question 3

Lawyer contacted me with an inquiry.  Quoting the rule, my response began as follows:

“Under the rule, your first duty is to, ‘as far as reasonably possible, maintain a normal client-lawyer relationship with the client.’”

Given my response, Lawyer called to discuss a client ____________:

• A.  who had filed a disciplinary complaint against the lawyer.
• B.  whose capacity to make adequately considered decisions in connection with the representation is diminished.
• C.  who provided false testimony to a tribunal.
• D.  who the lawyer reasonably believed, without knowing for sure, intended to use the lawyer’s services to commit a crime or fraud.

Question 4

Attorney contacted me with an inquiry.  I listened, then responded:

“There are 3 exceptions.  One is if the testimony relates to an uncontested issue. Another is if the testimony relates to the nature and value of legal services rendered in the case.  The last is if disqualification will result in substantial hardship to the client.”

Given my response, Attorney contacted me because Attorney __________:

• A.  reasonably believed that they had become a necessary witness.
• B.  mid-trial, learned that a former client would be the next witness to testify for the opposing party.
• C.  had been subpoenaed to give evidence against a former client.
• D.  All the above.  The rule mentions each scenario.

Question 5

A few months ago, news broke that a company’s former top in-house lawyer has cooperated with the federal prosecutors who are investigating the company’s much publicized collapse.  Apparently, the lawyer did not disclose the company’s criminal conduct before the company’s November collapse. See, V.R.Pr.C. 1.13.

Two weeks ago, Above The Law posted an article under the headline “Taylor Swift Is A Better Lawyer Than You.”  Swift reportedly turned down $100 million to endorse the company that is referenced in the first paragraph.  According to a lawyer who is representing plaintiffs who are suing the company, Swift rejected the company’s offer after asking “Can you tell me that these are not unregistered securities?”  

Competence indeed!

Name the company.

In my opinion, it’s the profession’s well-being that should be non-negotiable.

NOTE: Updated April 6 to include ABA Journal link

Hello!

It’s been a while.  For too long, any attempt to draft a new post has resulted in nothing but a blank space.  So that there’s no bad blood, rest assured, it’s not you. Rather, lacking any motivation to blog, I’m the problem, it’s me.  Today, however, a story that’s related to professional responsibility has helped me to shake it off.  By now, readers who know me all too well likely have guessed the story’s topic.

That’s right: wellness.

Over the past few days, a slide from a presentation done for newer associates by an associate at a global law firm has gone viral. Among others, Law.Com, Legal Cheek, and the ABA Journal have coverage.  Here’s the slide:

As the ABA Journal reported, the firm released a statement to Law.Com indicating that “the views expressed do not reflect the views of the firm or its partners.” Nevertheless, here’s another excerpt from the ABA Journal’s post:

“Tom Sharbaugh, a former Morgan, Lewis & Bockius managing partner who’s now a professor of practice at the Pennsylvania State University’s law school, told Law.com that he thinks that messaging similar to the associate’s advice may be prevalent at many elite firms.“

“I think you’re expected to just be always available, regardless of what they say about work-life balance and wellness and all that stuff,” Sharbaugh said. “At the end of the day, you’re married to the firm.”

So far, not exactly a love story.

Reaction to the story, however, served to remind me of the good and important work that so many have done to assist law firms and legal employers to make the workplace healthier.

A few weeks ago I posted We’ve Only Just Begun To Begin.  In brief, the post argues that it’s not enough to provide assistance and resources to legal professionals in need.  In addition, we must also work to reduce the root causes of stress, anxiety, and burnout.  That is, and as Patrick Krill noted in When Our Stress Becomes Dangerous, we must “the more stubborn forces of inertia, maladaptive attitudes, entrenched business models and extrinsic motivations.” With today’s viral slide in mind, perhaps the most entrenched and stubborn of those root causes are unreasonable workloads and unreasonable work expectations.

My wellness presentations also include a slide that contains the numbers 24/7/365.  The slide follows one in which I ask this question:

“What three numbers do not appear in Rules 1.3 or 1.4 of the Vermont Rules of Professional Conduct?”

When I show the “answer” slide, I acknowledge that, yes, there will be situations that arise outside “regular” work hours that require lawyers to provide clients with immediate assistance or attention.  However, I add that the duties of diligence and communication are modified by the word “reasonable.” Further, I remind legal professionals that making time for things other than work and clients is an aspect of wellness, with wellness, in turn, an aspect competence.

More succinctly, here’s a comment that’s in the ABA Well-Being Toolkit for Lawyers and Legal Employers:

“We are happiest and healthiest when we adopt healthy work habits and lifestyle choices. Importantly, though, we won’t be successful on our own. Well-being is a team sport.”

I can sense your thoughts: “Mike, what can I do to encourage my team to adopt healthy work habits and lifestyle choices?” I’m glad you asked! 

In addition to the ABA Well-Being Toolkit, I recommend the condensed version: the ABA Well-Being Toolkit for Lawyers and Legal Employers in a Nutshell: 80 tips for Thriving.  Also, I’m a big fan of the  recommendations made by the Legal Employers Committee in the 2018 State Action Plan issued by the Vermont Commission on the Well-Being of the Legal  Profession.[1]

I don’t expect to learn that a Vermont firm or legal employer has adopted expectations that mirror those in today’s viral slide.  Still, that doesn’t mean there isn’t room for improvement.  Check out the resources.  Find one change that makes sense for you and your colleagues. When it comes to the profession’s health and well-being, every small improvement matters.

And, in my opinion, improving our health and well-being is what should be non-negotiable.

As always, let’s be careful out there.

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[1] In particular, today’s viral slide reminded me of prior posts in which I’ve referenced the Legal Employers Committee’s recommendations and shared on work/life boundaries, billable hours, making wellness an expectation of the attorney-client relationship, and the importance of valuing employees as people.

Previous Wellness & Well-Being Posts

• We’ve only just begun to begin
• Wellness Wednesday: Make Well-Being an Expectation in the Attorney-Client Relationship
• Wellness Wednesday: Pro Bono
• Wellness Wednesday: R.I.P. Ray Massucco
• Wellness Wednesday: Don’t Stresslax
• It’s healthy for legal employers to value employees as people
• Meet David Rocchio: The Move to Movies
• Wrapping up Well-Being Week: my self-report of significant bread-making violations
• The 253^rd legal ethics quiz: Emotional Well-Being & my Kentucky Derby picks
• Connect & Contribute
• I Made Bread
• Align
• Stay Strong
• With 40 Wellness tips, the ABA has at least one for everyone
• R.I.P. Charlie Kryst
• Aiming for Well-Being
• Wellness, Emotional Regulation, and the power of “What’s Important Now?”
• A lesson from my dad, Nandi, and The Foo Fighters: find & experience awe
• Ask the Question
• Wellness Wednesday: Set communication boundaries with clients & opposing counsel
• Yes, wellness includes the results of my first moot court competition
• Wellness Wednesday:  It’s okay to ask for help.  Bar Assistance will listen and support you
• Wellness Wednesday: Set communication boundaries with clients and opposing counsel
• Wellness Wednesday: Compassion Fatigue
• Wellness Wednesday: A message from Justice Eaton
• Jessica Burke: “Well People Do”
• Wellness Wednesday: Schitt$ Creek and Paddles
• Wellness Wednesday: Be Kind to Lawyers
• Civility Matters. Especially Now.
• Coping with COVID-19 Related Stress & Anxiety
• Wellness Wednesday: Unplug
• Well-Being is an Aspect of Competence
• Wellness Wednesday: Survival Skills
• Wellness Wednesday: Make time for what (and who) matters
• Wellness Wednesday: Risk & Response 
• Do summer your way
• Wellness Wednesday: Meet Alison, Shireen, Samantha, and Alison
• Reach Out, Check In
• Wellness Wednesday: Mentor Someone
• Wellness Wednesday: Joan Loring Wing
• Wellness Wednesday: Law Day & Pro Bono
• Get your sleep
• Take a Chance on Being Nice
• Attorney Wellness: We’ve Only Just Begun
• Be Kind to a Lawyer Today
• Be Nice to Someone Today
• Wellness v. Well-Being
• Wellness Wednesday: Meet Molly Gray
• Wellness Wednesday: Judge Garland & My Cousin Vinny
• Shakespeare, Pink Floyd and Wellness
• Wellness Wednesday: You are not an impostor
• Wellness Wednesday: “N O” is “O K”
• Wellness Wednesday: Stop it!
• Wellness Wednesday: Meet Jeff Messina
• Lawyers Helping Lawyers Part 2
• Lawyers Helping Lawyers: Keep it on the front burner
• Lawyer Well-Being: a call to action
• Anxiety, Stress & Work-Life Balance for Lawyers
• Make time for what matters
• Lawyer Wellness: resolve to find 6 minutes for yourself
• 108 is way too many
• Workplace Happiness
• Make Wellness a Habit
• A pledge by legal employers to focus on lawyer well-being
• Legal Ethics & the Water Cooler
• Wellness Wednesday: Island Vines
• Wellness Wednesday: on ponds, puffery and paltering
• Wellness Wednesday: Neil Diamond, the Lock Screen, and National Mental Health Day for Law Students

Court isn’t a social media platform.

It’s the rare inquiry that involves the rule that addresses trial publicity.  Alas, in that it’s becoming more and more rare to find a lawyer not on social media, I think today’s message bears mentioning.

Rule 3.6 is the trial publicity rule.  It prohibits “extrajudicial statements that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”

Whoa.  Try saying that three times fast.

Anyhow, lately I’ve sensed a general feeling that arguments made in pleadings and court are seeping into lawyers’ social media posts, thereby raising Rule 3.6 concerns.

I disagree.

Based on the information I’ve reviewed when responding to inquiries and screening complaints over the past few years, I believe that the accepted norms of social media posts are seeping into pleadings and arguments.

I don’t say that with admiration for those causing the seepage.

Court is court.  It’s not the kitchen table, the town square, the bar, or Facebook. Give it the respect it deserves. Or, read Rule 3.5(d).

Last week, Professor Bernabe blogged about a Texas lawyer and client who were “’sanctioned $150,000 for the client’s ‘outright lies’ in litigation and ‘mountain of evasiveness’ in discovery.”  His post is here.  It links to this ABA Journal story, which, in turn, cites to a post on Law.com.

I’m not going to get into the misconduct that resulted in the sanction. For those interested in learning more about it, the court’s order imposing the sanction is here.

Rather, I want to highlight a statement made by the other lawyer.  Per the ABA Journal, “Opposing counsel Foster Johnson told Law.com that he hoped that the sanctions would be a warning to other lawyers.”

Then, the money quote:

• “ ‘Lawyers at times forget filing motions and pleadings is not like using Twitter,’ Johnson said. ‘You can’t just say anything you want when you file a complaint. You can’t say anything you want when you file a summary judgment motion.’”

Indeed.

To paraphrase this blog’s muse, “say it in a Tweet it’s a knockout, but you say it in a court you’ll be kicked out.”

Remember, in pleadings & arguments:

Don’t say I didn’t say I didn’t warn ya.

Supervise Your Trust Account. And Don’t Say I Didn’t Warn Ya!

Not every blog post is an easy ride.  So, buckle up, cuz this one is meant to make you feel the bumps. And despite the high mileage, it’s still got the original shocks & struts.

Yesterday I did a virtual CLE for the Lamoille County Bar Association.  Near the end, someone asked what legal ethics issue keeps me up at night worrying for lawyers. I was quick to respond.  Before I share my response:

• • You can say you don’t like it.
  • You can say I’m too cynical.
  • You cannot say I didn’t warn ya.

I worry for the lawyers working remotely who are trusting that a trusted employee isn’t taking money from trust.  

I’ve worked in legal ethics almost as long as a first-year law student has been on this earth. Embezzlement is a thing even in the best of times. In my experience, trust account embezzlement is as much an offense of opportunity as it is malice.  That is, when they realize you aren’t paying attention, they realize an opportunity.  It often starts simple: “I’ll pay this orthodontist bill, put it back once we get the tax refund, and nobody will know the difference.” 

That’s like me saying I’ll stop after one Oreo.

Times aren’t good now.  They will get better.  And, when they do, make sure you still have a law license to enjoy them.  Supervise your trust account. Doing so will never go out of Style.

“But Mike, first of all, my staff would never steal. Second of all, if another lawyer’s did, how could that possibly impact the lawyer’s license?”

The duty to safeguard client funds is non-delegable. And, sometimes, the most trusted employee is a nightmare dressed like a daydream.

If you think I’m exaggerating, I urge you to read this post in the ABA Journal.  When you do, make sure to click on “the board said.”  Then, as you are reading the disciplinary decision, keep the ending in mind: the lawyer’s license to practice law was suspended for 6 months.  Sure, on appeal, the New Jersey Supreme Court reduced the suspension to 3 months. I guess there’s that.  Still, a nasty scar.

When it comes to your trust account, even with your most trusted employees, trust, but verify.  Otherwise, there’s a Blank Space on our complaint form, and that’s where clients will write your name.

Don’t say I didn’t warn ya.

Five For Friday #189

Welcome to Friday!

It’s Super Bowl weekend.  One of my favorite aspects of the Super Bowl? The long odds that you can get on crazy (and entertaining) prop bets. For instance, you can bet on who will tackle a fan who runs onto the field.  The longest odds are on “another fan.”  A $100 bet pays $750.

Ok, so, regular readers know a few things about me.

• I try to tie the Friday column to the quiz number, the date, or an upcoming event.
• I like to include references to pop culture & sports.
• I’m a Taylor Swift fan.
• I’m superstitious.

Today is Justin Timberlake’s birthday.  He’s been part of two memorable half-time performances at the Super Bowl.  Sunday is the Super Bowl and, this quiz number – 189 –  is (sort of) associated with Taylor Swift.

When I started this blog, the odds were astronimical that quiz 189 would fall on Justin Timberlake’s birthday two days before the Super Bowl. A $100 bet probably would’ve paid $75,000.  I cannot believe my luck!

Here’s where my superstitious side kicks in.

Been there, done that.

Five For Friday #92 posted on October 27, 2017.  Central characters?

• Justin Timberlake;
• Taylor Swift; and,
• the Super Bowl.

What are the odds?

Alas, I will you leave this.  Regular readers also know that I like stories that involve clever filings by lawyers.

Denise Kirby is a lawyer in Kansas City.  She’s a Chiefs fan and is in Miami for the Super Bowl, but only after receiving a continuance for a trial that had been scheduled for Monday.  As it did me, I hope that Attorney Kirby’s Request For Continuance makes you smile.  Above The Law has the story & filing here.

Onto the quiz!

• None.  Open book, open search engine, text-a-friend.
• Exception:  Question 5.  We try to play that one honest.
• 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
• Share on social media.  Hashtag it – #fiveforfriday

Question 1

There’s a rule that prohibits a lawyer from communicating about the subject of the representation with a person that the lawyer knows is represented by another lawyer.

Which is NOT an exception to the prohibition?

• A.    The other lawyer consents to the communication.
• B.    The communication is authorized by law.
• C.    The represented person initiates the communication.
• D.    Trick question.  A, B and C are exceptions to the rule.

Question 2

Here are 2 things I mentioned at CLE:

1. last minute changes to wire instructions; and,
2. a prospective out-of-state client who claims to be owed money by a person or business that is in Vermont, and who only communicates with you by e-mail.

I was warning lawyers about  ________.

• A.   accidentally communicating with a represented person.
• B.   the risks of not understanding how to conduct e-discovery competently.
• C.   the Unauthorized Practice of Law.
• D.   common trust account scams.

Question 3

Consider the following:

• must be in a writing that is signed by the client.
• cannot be used for representing a defendant in a criminal case.
• cannot be based on securing a divorce.

Here, we’re talking about:

• A.   Contingent Fees
• B.   Flat Fees
• C.   An agreement to limit the scope of a representation
• D.   All the Above

Question 4

Attorney called me with an inquiry.  She said “Mike, I represented Client.  The case is over.  She’s coming to my office later this week.  I have some questions about mental impressions, as well as internal notes and memoranda.”

Most likely, what did Attorney call to discuss?

• A.  The duty to report a client’s fraud.
• B.  The duty to act competently to safeguard client data stored in the cloud.
• C.  The duties to a client who suffers from a diminished capacity.
• D   The duty to deliver the file.

Question 5

Background: after consecutive quizzes that included questions related to the British royal family, the ghost of Aunt Kate admonished me through a local lawyer who spent many an election night at Aunt Kate’s house.   As such . . .

. . . in 1966, Alan Page led the Notre Dame Fighting Irish to the college football national championship.  He went on to star in the NFL, and played in 4 Super Bowls for the Minnesota Vikings.  On the Vikings, he was part of a defensive unit that had a colorful nickname.  After retiring from football, Page embarked on a legal career that included serving for 30 years on the Minnesota Supreme Court.

That’s right: he played & served in Prince’s home state.

Back to Super Bowl bets & long odds: another available bet is “what color Gatorade will the winning team pour over its coach?”

When betting opened, a particular color was the longest shot, with a $100 bet paying $1,800.  As of this morning, that color is now the odds-on-favorite, with winners only getting even money.

If you know anything about Prince, the Vikings, and the nickname of Page’s defensive unit, you’ll know the color.

What color?

Monday Morning Answers #182

May your Monday not have begun in an airport!  In the spirit of Question 5, all I can do now is shake it off, shake it off.

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

Honor Roll

• Carolyn Anderson, General Counsel, Green Mountain Power; Vice-Chair, Professional Responsibility Board
• Evan Barquist, Montroll Backus & Oettinger
• Honorable John M. Conroy, United States Magistrate Judge, District of Vermont
• Erin Gilmore, Ryan Smith & Carbine
• Laura Gorsky, Esq.
• Robert Grundstein, Esq.
• Glenn Jarrett, Jarrett & Luitjens
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
• John Leddy, McNeil Leddy & Sheahan
• Pam Loginsky, Washington Association of Prosecuting Attorneys
• Jeffrey Messina, Bergeron Paradis Fitzpatrick
• Hal Miller, First American
• Herb Ogden, Esq.
• Nancy Hunter Rogers, Chamberlin School 
• Jim Runcie, Ouimette & Runcie
• Kristen Shamis, Monaghan, Safar, Ducham
• Jonathan Teller-Elsberg, Vermont Law School, JD Candidate

Answers

Question 1

A lawyer has a duty to reasonably consult with the client about the means by which the client’s objectives are to be accomplished.

• A.   False.  The lawyer controls the means.
• B.   False.   The lawyer shall abide by a client’s decisions with respect to the means by which the client’s objectives are pursued.
• C.   True.  V.R.Pr.C. 1.4(a).

A and B are not correct.  Per Rule 1.2(a), the client controls the objectives and the lawyer “as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued.”  This does not give the lawyer control over the means.  For instance, a client might not want to pay for something the lawyer suggests be done.  Nor does it give the client the absolute right to direct the lawyer to do certain things . . .  for instance, violate the rules.

Question 2

In representing a client, a lawyer _______ not use means that have no substantial purpose other than to embarrass, delay, or burden a third person.

Which is most accurate?

• A.   This is a rule.  And the blank is “shall.”   V.R.Pr.C. 4.4(a).
• B.   This is not a rule. It’s an aspirational comment to one of the rules. And the blank is “should.”

Question 3

A lawyer is holding funds to which both a client and third person claim interests. Their interests are in dispute.  By rule, the lawyer must:

• A.  disburse the funds as directed by the client
• B.   hold the funds until the dispute is resolved.  V.R.Pr.C. 1.15(e)
• C.   withdraw from representing the client
• D.   A or C

Question 4

If an attorney calls me with an inquiry and my response includes use of the word “imputed,” what did the attorney most likely call to discuss?

•  A.  Reviewing an adverse party’s social media posts
•  B.  Trust account management
•  C.  A potential conflict of interest.   V.R.Pr.C. 1.10
• D.  Advising a client to change the privacy settings on her social media platforms

Question 5

 Earlier this year, I blogged about Andrew Manitsky.  Not only is Andrew in a band, he’s my go-to guy when I have questions related to intellectual property and trademarks.

The 2019 American Music Awards are scheduled for November 24.  The artist who will be honored as the AMA Performer of the Decade planned to perform the songs that helped the artist earn the honor.  Songs that the artist wrote, sang, and made famous.

However, this week, the artist took to social media to allege that the label that owns the rights to the artist’s catalogue is refusing to let the artist perform the artists own songs during the ceremony and, further, has also banned the artist from using the music in an upcoming Netflix documentary about the artist’s career.  The label responded by accusing the artist of disseminating “false information.”

Regular readers will certainly know whose side I’m on!

Name the artist.

Taylor Swift in her on-going battle with Scooter Braun.  The New York Times has the latest.