SPRING 2018 • VOL. 44, NO. 1 VERMONT BAR JOURNAL DEPARTMENTS

5 PRESIDENT’S COLUMN — The Good Life

8 PURSUITS OF HAPPINESS — Ultra Runner - An Interview with Gavin Boyles

14 RUMINATIONS — The Militia Governed by the Civil Power

22 TECH TIPS — Phishing Attacks

23 WHAT’S NEW — Well-Being of the Legal Profession Vermont Spring Bloodroot by Jennifer Emens-Butler 24 WHAT’S NEW — Interview with VLS Dean Thomas McHenry

28 WRITE ON — Appellate Practice 42 CHILDREN’S CORNER BATTLE OF WITS! TIME TO VOTE! — “Low Bono” The VBA Journal needs your input to select the victor in 44 BOOK REVIEWS this round of our “battle of wits.” Below you will find 3 po- tential captions for Kathy Fechter’s headless snowman car- 45 IN MEMORIAM toon. Email (or send a Facebook or Twitter reply) with the word “lawsuit,” “sneeze,” or “drone” to [email protected] to 46 CLASSIFIEDS vote for the winner! The voting deadline is April 16th, tax day, the opposite of funny.

FEATURES Captions: 30 Spotlight on Sexual Harassment Law “We are going to submit our settlement demand Hope Pordy, Esq. once we get the permanency evaluation.” “Gesundheit!” 34 Steps to End Domestic Violence Lila Shapero, Esq. “I told you he was too young for a drone!”

35 Certified v Certificated Paralegals Robyn A. Sweet, CRP™ Lynn C. Wdowiak, RP®

35 Common Conflict of Interest Traps Mark Bassingthwaighte, Esq.

40 Thank you for Supporting the VBF

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4 THE VERMONT BAR JOURNAL • SPRING 2018 www.vtbar.org PRESIDENT’S COLUMN The Good Life

Today, our society exhibits high levels of do become overwhelming at times. Prac- division and competition. There is clear ev- ticing law requires great strength of char- idence that people in our country are work- acter and courage to make life-lasting deci- ing hard to get ahead and to be their best sions on behalf of our clients. We agonize for purposes of self-fulfillment and finan- over the smallest of details, trying to create cial benefit. With the attempt to be better change for those to whom we are responsi- than that last person -- that struggle to gain ble. We work so hard for our clients know- increased recognition, status and financial ing that our decisions have an ever-lasting benefit -- comes a stress that can cause im- impact upon them. balance in one’s health, wellness and ability How do we address these pressures with- to be all they can be. in our profession? It is an important ques- As attorneys, we are not immune to tion because without self-care, our positive these social circumstances and it is im- impact suffers. portant to consider ourselves in the con- We all should be aware of initiatives tak- text of our profession with an emphasis on ing place to address this very issue. On well-being and health. When we take care January 2, 2018 the Vermont Supreme of ourselves, we are able to care for oth- Court, spear-headed by Chief Justice Paul ers. When we do not, we fall down, do not Reiber, authored a Charge and Designation meet expectations of those around us, and to create the Vermont Commission on the often negatively impact our relationships Well-Being of the Legal Profession. In sup- with others including with those to whom port of the creation of the Commission, the we are responsible under our ethical guide- Court cited the ABA/Hazelden study and lines. its recommendations as well as another re- There has been much attention paid to cent report expressing similar and alarming Michael Kennedy, Vermont Bar Counsel; the challenges of substance abuse, depres- concerns for the well-being of law students. Thomas McHenry, Dean and President, sion, anxiety, and workaholism in our pro- The Commission is charged with creating a Vermont Law School; Joshua Simonds, Di- fession. Last year Past President Michael state-wide action plan with specific propos- rector, Vermont Lawyers Assistance Pro- Kennedy raised the red flag in his Journal als. By the end of this year the Commission gram; Ian Carleton, Principal, Sheehy, Fur- article where he cited the findings of the shall report on the following areas: long & Behm; Laura Wilson, Morrissette, National Task Force on Lawyer Well-Be- Young & Wilson and Christopher Newbold, ing. The February 2016 report authored by 1. Develop a policy for confidential in- Executive V.P., ALPS Corporation, Lawyer’s the ABA and the Hazelden Betty Ford Clin- terventions for lawyers, judges and Malpractice Insurance. ic found substantial and widespread levels law students struggling with mental A plenary session devoted to the top- of problem drinking and other behavioral health, well-being and/or substance ic is scheduled for our Mid-Year Meeting health problems in the U.S. legal profes- abuse challenges. on March 23, 2018. Newly retired New sion.”1 Although Vermont did not directly 2. Develop a plan to support and sus- Hampshire Lawyers Assistance Program participate in the study he saw no reason tain a Lawyers Assistance Program Executive Director Cecie Hartigan will be not to conclude that if Vermont’s numbers in Vermont, to assist lawyers, judges, the keynote speaker at the plenary session, mirror those reported in the study, then ap- and law students with mental health, joined by Terri Harrington, Cecie’s succes- proximately: well-being and/or substance abuse sor at NHLAP. challenges. The Vermont Bar Association supports - 500 active Vermont attorneys are 3. Provide on-going educational oppor- initiatives that improve the health of our problem drinkers. tunities for lawyers, judges and law members. Our membership’s health is criti- - 500 active Vermont attorneys exhibit students regarding mental health, cal as we consider the next decade of in- signs of problem anxiety. well-being and/or substance abuse novation that will be impacting us all. We - 720 active Vermont attorneys strug- assessments, programs and resourc- must be at our best to consider how we gle with some level of depression. es. will address the increase in alternative le- gal service providers, the aging of the Ver- The numbers are significant – and stag- Further, the Court requested that the mont Bar, the loan repayment issues of our gering. And yet the idyllic picture painted Vermont Bar Association provide the Com- youngest members, the need to maintain of becoming a successful and well-regard- mission with necessary staff and adminis- public confidence and the affordability of ed attorney lingers in the minds of those trative support as well as other technical legal services for Vermonters. Full engage- who have not taken this path. The lay per- assistance. The VBA welcomes the oppor- ment of our membership is necessary to son may ask, ‘Why would attorneys ever be tunity to partner with the Court. Please see tackle these issues and work toward a bet- depressed or anxious? They have the world the article in this issue by Teri Corsones, ter future. It is with this in mind that I offer on a string!’ However, addiction, sub- VBA Executive Director, setting forth more two alternative concepts to improving the stance abuse and mental health issues are details about the Commission. wellness of our members: an equal opportunity employer and we, as The Commission will be co-chaired by -- volunteering and providing pro bono a profession, are not immune. The reality is Chief Justice Reiber and Judge William D. services and that the pressures associated with our work Cohen. Members include Teri Corsones; www.vtbar.org THE VERMONT BAR JOURNAL • SPRING 2018 5 -- renewing our focus on the Guidelines within the profession and the judicial sys- of Professional Courtesy from the tem. The Guidelines of Professional Cour- VBA Directory. tesy provide a start --they help us ensure that our relationships with each other are Volunteering and Providing professional, respectful, and considerate Pro Bono Services while we simultaneously uphold our re- President’s Column President’s sponsibility to be diligent advocates. These A recent study of the health benefits re- two concepts can and should coexist but lated to the level of volunteering one does only when our interactions reflect a genu- shows a significant positive health outcome ine affinity and kindness toward each other correlation with volunteer work (mental while still holding strong to our necessary and physical health, life satisfaction, social positions. I encourage all attorneys to re- well-being and reduced depression).2 It is view these guidelines and work hard to live worth reviewing this research on the men- by them. We all benefit from maintaining tal and physical health benefits of spend- positive relationships even while the natu- ing time serving others within the context ral conflict of opposing sides in the legal of improving our profession. Rule 6.1 of field exists by necessity. our Vermont Rules of Professional Conduct Relationships and social connections references the professional responsibili- are the cornerstone of healthy living. A ty to provide legal services to those who recent Harvard study of human develop- are unable to pay. Specifically, 50 hours per ment found that social engagement was year is reflected as a minimum aspiration one of the top factors in a long life. 4 It in the rule. In addition to legal pro bono has always been said that laughter is the service, many of us have the opportunity best medicine, and now science has found to find ways to volunteer in our communi- some backing for that assertion. The Greek ties in areas of personal interest. The idea philosopher Aristotle determined that the of increasing our focus on volunteering and essence of life is “To serve others and do providing pro bono services in the profes- good.” sion as a whole is worth a refreshed effort. It is with these concepts in mind that I The VBA provides a myriad of resources leave you with a quote from Paul Bloom, and avenues to engage in pro bono work a professor at Yale and accomplished psy- and these are highly worth everyone’s re- chologist and author: “We are constituted view. I would also offer that volunteering so that simple acts of kindness, such as giv- generally may be worth considering as a ing to charity or expressing gratitude, have new way to approach being overwhelmed a positive effect on our long-term moods. within our practices. The rejuvenation that The key to the happy life, it seems, is the can come from an afternoon of truly help- good life: a life with sustained relation- ing others in need is well worth the effort ships, challenging work, and connections it takes to make it happen, for you and for to community.”5 others. Help others, smile often, and be well. ______1 A Focus on the Guidelines of Professional Also cited was a NH Bar Association Febru- 3 ary 2016 article interpreting the national sta- Courtesy from the VBA Directory tistics: “Lawyers drink two to three times more than physicians, and nearly three times as much In addition to spending time supporting as the general population, according to a new others in need, it is also important to re- national study.” 2 visit our own interactions within our pro- Yeung, Zhang, & Kim, Volunteering and health benefits in general adults: cumulative effects and fession. As President of our Association, forms, BMC Public Health. 2018; 18:8, correct- I meet monthly with members of the Su- ed: https://www.ncbi.nlm.nih.gov/pmc/articles/ preme Court and administrative staff. PMC5504679/ 3 Building supportive and collaborative re- The VBA Directory contains a reprint of the lationships is essential to the continued Guidelines of Professional Courtesy on Page 5. 4 http://www.adultdevelopmentstudy.org/ success of the Bar Association but also 5 Bloom, Paul, The Long and the Short of It, to the effective the administration of jus- Opinionator, NYT online, September 15, 2009: tice. Recently, it was brought to my atten- https://opinionator.blogs.nytimes.com/author/ tion that there is a growing concern about paul-bloom/ civility in Vermont courtrooms. Given the nature of our judicial system, such a phe- nomenon might be easily explained away as a natural by-product of adversarial con- flict. But it doesn’t have to be. Our practice is one of conflict by design and so, in our effort to ensure we are pro- tected from the stress of conflict, it is in- cumbent upon us to consider our own en- gagement with others as we work together

6 THE VERMONT BAR JOURNAL • SPRING 2018 www.vtbar.org

PURSUITS OF HAPPINESS Ultra Runner: An Interview with Gavin Boyles

Jennifer Emens-Butler: I am here in the State Department of Financial Regulation with the newly appointed General Counsel of this Department, Gavin Boyles, correct? Gavin Boyles: That is correct.

JEB: Gavin, congratulations on your new post! I didn’t realize you had changed posi- tions when I hunted you down to interview you for our Pursuits of Happiness column, where we explore the interests and talents of lawyers outside of the practice of law. I thought of interviewing you after my son had done the Spartan Race junior in Kil- lington a few years ago. Looking at the list I found that you ran it that year, right? GB: Yes, I did it that year with a couple of I thought that they would be more that, but her on those and she’d bring us to her run- my coworkers from the Attorney General’s some of them, I physically couldn’t do, or ning club’s track workouts every week. Run- Office, both lawyers. could barely do. Lifting heavy weights isn’t ning was really a constant in my childhood. really in my wheelhouse! And our father was a competitive runner in JEB: And you loved it? high school and in college. Then my older GB: It was great. I loved it, yes. I really JEB: Oh, and then they make you do bur- sister started running track when she was in had fun, but had to get over my general fear pees or something, right? 8th grade so I sort of followed her. of getting hit with objects and having to be GB: Yes, they penalize you. I was also sur- coordinated. prised at how much running there was in it. JEB: A lot of times, kids will do the exact It was a long day of running. opposite of what their parents do. JEB: So people are aware, the Spartan GB: Right, I know! I did rebel in some oth- Race is not just running, right? They put you JEB: Well they had people that were er ways, but I was never going to be much of through the wringer with all sorts of weird there well into the night, I don’t know if they a football player, so... obstacles and…. had to pull them off the mountain or if they GB: Yes, right, and I didn’t know much just waited. JEB: American football --you could be a about it going in, but I generally knew it in- GB: I think they just waited. soccer player though, right? volved running up and down Killington a GB: I did play a little soccer but the run- couple of times and stopping at various sta- JEB: Nine hours later or something? ning was the first sport that I was ever any tions to lift things or crawl under barbed GB: Yes. good at and it happened that a bunch of wire, or climb nets or walls, all while being my friends from late middle school and high sprayed by fire hoses or something, so it was JEB: That seems crazy. So, it was “only” school were into it too, so it was a great so- definitely a funny idea of “fun.” 11 miles, do you remember? cial thing too. GB: Yeah, something like 12, I think, but it JEB: For fun, you thought, but then I out- is hard to measure because it is a lot of go- JEB: Was that track or cross-country? ed you as the real deal because I read that ing through forests and obstacles. Most of GB: Both. I ended up running year-round you had finished first for your age group, is what I did to get ready for it was really just in high school. But for me, I wasn’t a great that right? run, which is something that I have always competitor -- I really loved going to practice GB: Um, that could be right. I don’t re- done, basically since 7th or 8th grade. It is and I loved just being as good as I could be member. I felt like I definitely should’ve been definitely a lifelong passion of mine. and running with my friends, but I never re- in the running for “Had the Most Fun” too! ally enjoyed racing that much. JEB: So, were you on the track team or JEB: In preparing for the Spartan Race, cross country in high school? JEB: You pushed yourself with your own did you think they would be more like sim- GB: Yeah, so I have a family history with goals? So, did you prefer cross country ple obstacles or did you know that they were my mom, who was an avid runner down in then? going to be grueling? I mean, I have seen New Jersey where I grew up. I remember GB: Yeah. I did prefer the cross-country people come out with barbed wire scars and going with her to some of the early all-wom- races, but I never loved racing for competi- bruises all over their bodies. Seems pretty en’s road races in New York City when I was tion. It just seemed like a lot of pressure. harsh. about four. I was mesmerized by watching GB: Yeah, I had some idea going in, but that. JEB: Just running for running’s sake? I didn’t know how many there would be, or GB: Right. how hard they were. I had seen some of JEB: Coming by in groups with water sta- the more photogenic tasks that they use in tions, encouragement, the excitement of JEB: So, did you run in college? the advertisements, like jumping over fire watching them all go by… GB: Yes. I went to a little tiny college in and getting hit with the padded sticks and GB: Right! My sister and I would go with Pennsylvania, Haverford College, which is

8 THE VERMONT BAR JOURNAL • SPRING 2018 www.vtbar.org

about 1000 students. It’s right outside Phil- JEB: Well that is why we are here; to of turned me on to running the mountains adelphia and sort of the brother school to talk about this leveling influence. So, in law around here, you know like the Worcester Bryn Mawr. I took a bunch of classes at Bryn school did you run often to overcome the Range, Camel’s Hump and Mt. Mansfield, so Mawr and had a great academic experience. stress of school? I have done that, a lot. And it’s funny to call The school was tiny but the track and cross- GB: Yes. Not as consistently as I should it running, because a lot of it you are truly country programs were disproportionally have, and it really was a lesson for me, per- going as fast as you can, but you are power

Pursuits of Happiness large – we had about 70 men on the cross- sonally, just realizing how important it was walking. I got into that about 5 years ago, I country team when I was there. The coach for me to do it regularly. To get some exer- started doing that. I had some friends from was fantastic, a sort of a father away from cise, because I had a couple periods where I Burlington and we would meet at Camel’s home for me, and it was a great culture. No- didn’t do any running, and that’s when I kind Hump and run up it as fast as we could and body got cut from the team as long as they of had some classic law-school low points then run down it. I thought that was such a tried and were a good presence, and I just where I wasn’t all that happy. cool thing--we were all trying hard, but it was loved that atmosphere. all in good fun and it was gorgeous. When JEB: You found your way out of the dark running it, I could go there before work—up JEB: So, there wasn’t any sense of trying spiral, though, by running? and down and then to work. to go for an Olympic program or All Ameri- GB: Yes, among other things. And VLS can or anything, you just ran to run? was a great place for running. It reinforced JEB: Wait, what?! You would run up and GB: Not for me, or at least not for long. for me that one of the things I really love down Camel’s Hump before work? Running tends to get rid of delusions of about running is that you can really build re- GB: Yes. grandeur pretty quickly. I just had a great lationships that way and during the times group of friends that I loved to run with. I when there was someone else that I could JEB: Don’t people take like 6 hours to competed in cross-country, ran in the sum- run with there, I did it more. hike Camel’s Hump? mers, and did the steeple chase in track, GB: Yes, right, so if you are running, es- which is almost a 2-mile race with barriers, JEB: So, you do prefer to run with some- pecially on the way down, it is a lot faster, hurdles and a little water pit. body? I mean can you carry on a conversa- so you can do it in maybe 3 hours, so if you tion the whole time or is it just having that go there and start at like 4:30 or 5 a.m., get JEB: Ah, the precursor to the Spartan person there? down at 8 and come back to Montpelier. race! GB: A little of both. It is always nice to GB: Right! I think I partly liked it because have company when you are doing a hard JEB: Wow, ok. So up and down Camel’s it was made lighter with these interludes of workout and you aren’t talking then, but Hump in a few hours before work, no prob- almost silly little tasks, in the middle of the then you talk afterwards. But I have done lem. race. I was a little bit better at that than I was a lot of running alone; don’t get me wrong. GB: [Laughs], But I was running pretty at just running around in circles. hard, and that was this really cool, eye open- JEB: Have you ever run marathons? ing thing for me, having a little sublime ex- JEB: After college, how did you get here, GB: Yes! I first did the one in South Hero, perience before work. to Vermont? the little tiny one, with 200 people and in- GB: My wife grew up in Charlotte/South tense winds coming off the lake, dirt roads JEB: And you would get to see the sun- Burlington. She went to high school with a and just one or two aid stations, and then rise, starting with a headlamp? good friend of mine from college and I came the next one I did was Boston. GB: Yes, we’d usually start with a head- up to Burlington to visit the friend after I lamp, depending on the time of year. Some- graduated, and she was living with my wife. JEB: Which was a totally different expe- times you get the fog in the valley or you get rience. a beautiful bluebird sunrise... JEB: So you met your wife, fell in love, GB: Right! Crowds of people. It was the and as they say, the rest is history. year that Lance Armstrong ran it, so there JEB: and you must see some cool ani- GB: Exactly! was this whole circus atmosphere, but it was mals? really great. Both were great for their own GB: Yes, more animals tend to be out in JEB: So, you stayed here, where did you reasons the early morning, you know it is just great. go to law school? So, I was doing that quite a bit, and then we GB: I went to VLS. We were already liv- JEB: Now most people who run mara- were planning this family vacation up to the ing here in Woodstock and I was working at thons run for time, I mean they run to either Gaspe [Gaspésie] Peninsula in Canada, and outdoor education center in Plymouth, Ver- beat themselves or someone else, but did I have always wanted to go there. And then mont, Farm and Wilderness. I worked there you just want to see if could just run 26.2 I heard about this race that was happening for a few summers teaching rock climbing miles and enjoy it? and it worked out that we could arrange and taking kids backpacking. Eventually I GB: Well, I was trying to go as fast as I the family vacation so that the first day of was the staffing coordinator, working year- could. But I think the thing that I have en- the vacation would just be me running this round in the office, when I decided I want- joyed about running after college is that is race, and then for the rest of the week, vaca- ed to go to law school. We weren’t going to about whatever I want it to be about. Not tion! It was just a fun way to get to know the leave the state at that point, so, VLS it was. necessarily the competition with others; mountains up there, which are pretty differ- more with myself. ent than ours-- the tree line is much lower, JEB: So did you continue running all this and it is a lot colder up there. time, for your own piece of mind? JEB: So you pushed yourself, but it seems GB: When I could, definitely. When I was exploratory, you are right, a marathon here, JEB: A lot of open ridge. I looked it up on leading backpacking trips, that was immer- a Spartan there, and now to the ultimate what parts I could see of the website and it sive, and I didn’t really do much running. I topic for this interview, the Ultra Trail. Have looked like even though it is in June or July, really missed it. It has always been sort of a you done many mountain races? there is some snow, right? leveling influence on me. GB: No, not formally. Just a few. One GB: Yeah, it was wild. It was June 30th or of my friends I run with here in town, sort something, and it was in the high 80’s at the

10 THE VERMONT BAR JOURNAL • SPRING 2018 www.vtbar.org Pursuits of Happiness start, brutally hot, but we also ran across a GB: Pretty much tried to run. I just tried snow field for half a mile and saw caribou! to go the whole way. I had these little Gum- I got really overheated and got dehydrat- my energy cubes ed, because I just couldn’t get it through my head that it was actually hot outside. It was JEB: Those Gatorade energy chews or incredible. something? GB: They were disgusting. JEB: Well let’s just make this absolute- ly clear for our readers the Mont Albert sky JEB: Would you do it again? running series in the Gaspe Peninsula that GB: Yeah, I would love to do that one you did is 26 miles of mountain running? again. Really, the way it turned out was my GB: It is a marathon. legs really just shut down, so I was basically a tourist. I really just started walking at a cer- JEB: But up a mountain? tain point. It was beautiful, though, so I really GB: It is up and down and up and up and just tried to enjoy being out in a wild place! up and up…. JEB: Were you able to enjoy your family JEB: Ok, mostly up? vacation or were you out of commission for GB: [Laughs] Yes, it definitely seemed the recovery? like mostly up! I did a lot of walking on flat GB: The family vacation was fantastic – I ground on the way down, my legs just shut really recommend for folks who love the out- down, completely. doors. Because I bonked so badly, the re- covery was actually easier, I think. JEB: Was there any scrambling or climb- ing… JEB: What was the winning time, do you GB: No, nothing real technical but the remember? main challenge of it, for me, was that you GB: I think like 4 ½ or something like that. were just running on like loose angular small stones for hours. JEB: Then you did something different later that same summer, which is equally ex- JEB: So it was 26 miles and a marathon treme it sounds like. Didn’t you say you ran time, is maybe, what 2 plus hours? the Mansfield Double Up? GB: So I ran the Boston Marathon in GB: Yes, just a few weeks later. That about 2:40 years ago, and probably at the one started at base of the lift on the Stowe time that I ran Gaspe race, it would have side and went straight up the Haselton Trail been like 3 hours for a marathon, but the to near the Chin and then around the back Gaspe race took me 6 hours. It was really down Maple Ridge, across the CCC Road to hard, really humbling, for sure. near Sunset Ridge and then up Laura Cowles almost to the summit and then part of the JEB: But the scenery was beautiful! Did Long Trail, Rimrock and Perry Merrill back you have a lot of people around you or were down. So, a lot of up and down! you mostly alone? GB: It is nice and with races that long, you JEB: You said 11 miles but 5500 feet of el- can kind of talk and you are not really pant- evation or something like that? So, it is the ing you are just sort of going at a pace that same thing where you think 11 miles would you can maintain for 6 hours. I ran a good be, you know, an hour or 2, but no! part of it with a guy I have never seen since, GB: It was at least 3, but it was fun, like a who was very nice, and we chatted some. reunion of some folks that I hadn’t seen in a He was from Nova Scotia, I think. while. It was the first race at least in recent memory that has been on Mansfield. It was JEB: So, what did you have to bring with the first year. They sent people off in waves you on a 6-hour mountain run? of 7 or 10. GB: They had some requirements for that one, you had to bring like a waterproof layer JEB: Being environmentally cautious. and a hat, and… GB: Yes. It was a neat way of doing it be- cause you kind of ended up with a little bit JEB: Really, they make you wear a hat? of company, but you also had some solitude. GB: Well, they make you bring it. Yeah, So that was sort of the last big running race I they actually checked your bag, which I was did and since then I have kind of dialed back a little surprised by. They make you bring the running and dialed up the climbing. like a whistle and a space blanket or some- GB: I would like to do more of those long thing. races but it is just harder to find the time for it, training included, as I get older. I’ve been JEB: Did you have to stop to have any rock climbing instead, which is something I energy bar or did you just make the whole share with my daughter. 6 hours because you didn’t want to eat any- thing? www.vtbar.org THE VERMONT BAR JOURNAL • SPRING 2018 1 1 JEB: How old is your daughter? pursue this running passion. You are in the practice? GB: She is almost 9. Department of Financial Regulation, but you GB: It is hard to say, I mean, when I was were in the AG’s Office before. Were you in private practice, I was right out of school JEB: And she rock climbs?! in a private firm before you worked for the and I was the youngest associate and I am GB: Yeah, she loves it. State? not sure if I was right to feel that I shouldn’t GB: Yes, I worked at Paul Frank & Collins go exercise during the work day, but I did

Pursuits of Happiness JEB: Real rocks or just the like climbing in Burlington before I worked for the AG’s feel that way. Not because of anything any- walls? Office and then before that I was clerking. one said to me; I think a lot of it was in my GB: Both, but mostly climbing walls so far. With any of the jobs that I have had, it has own mind. I think in retrospect it would have always been sort of a challenge, to make or been fine as long as I had gotten the work JEB: And you said you had built one in find the time. I just figure out a way. There done. your house? have been times when my kids were really GB: Yeah, we built one in our garage. I’m young, when it made sense for me to run ex- JEB: There is more recognition these days trying to focus more on that, because it is tremely early in the morning and now I’ve of the importance of exercising and keeping something I can do with family and it brings got a bit more flexibility because they are yourself balanced. Employers want their at- me some of the same mental benefits or more self-sufficient. There was a period in torneys to be healthier, generally, and take emotional benefits that I get from running. there when the only real time I could run was care of themselves. It is like the oxygen It sort of balances out the work day and I can either at lunch or at night. mask thing, right, you cannot take care of get a good climbing session in with much other people unless you take care of your- less time commitment. JEB: And so, you would just run around self. Do you see that happening more? town at lunch? GB: I hope so. And now that I am in this JEB: And you don’t disappear for 11 GB: I tried to do that, yes, and there is a new role hopefully I can support other attor- hours. pretty good culture in Montpelier with peo- neys to do things that keep them on an even GB: Yeah, so that has been great. ple sneaking in a bit of exercise at lunch. keel and happy in the profession. I know that for me, the times when I have felt at all dis- JEB: So, you just have 1 child or 2? JEB: I go up to the tower at lunch often satisfied with the profession are the times GB: 2. I have a son as well. because it is so nice just to be in the woods. when I have not been finding time for the GB: Exactly! It’s a great town for physical things outside of work that I need to do, for JEB: Is he into rock climbing too? activity; a lot of parks and trails. myself. GB: He plays soccer. JEB: Do you find it’s easier working for JEB: So, you know how important it is to JEB: YES! So how do you find time to the State than when you were in private make the time.

12 THE VERMONT BAR JOURNAL • SPRING 2018 www.vtbar.org Pursuits of Happiness GB: Yeah, I feel that personally, and I least get to do it with her and then get some know everybody needs it, but not everybody exercise. needs the same things. GB: Yeah, that has been the interesting transition, because I have experienced some JEB: It is definitely a conscious decision of that too when I take her to her competi- to put that time aside for yourself, whatev- tion and we just walk around. But it is inter- er it is. Some people like to run, some peo- esting, I get some of the same benefits out ple like to knit, some sing, what have you. of just watching her do it. When I was thinking about interviewing you, though, I was thinking that your passion, at JEB: Good point! I do enjoy it. It’s peace- least the ultra-races that you have done are a ful and will be over before I know it. It’s just little more intense and lawyerly than just sort that you can’t spend as much time keep- of wandering in the woods and hiking. But ing yourself in shape when you are running in interviewing you, I am hearing that you do around for kids, but you just have to make these things for fun and balance, not com- time I guess. Now do you go still go on rock petition. And I originally thought that they climbing adventures by yourself? have to have some sort of lawyerly quality, GB: Yes. right? That you chose a more intense thing? GB: I definitely enjoy trying hard at things. JEB: The big rocks with ropes and I imag- I just don’t especially care if I beat that per- ine someone else. son or that person, it is more like I just want GB: Yes, it is a two-person endeavor, defi- to know that I tried hard and did as well as I nitely. I only get outdoors occasionally, it’s a could do. And the physicality and adventure hard one to sort of fit into the family sched- provides a balance to a sedentary job. ule, but a couple of times a year I manage to get out for a big climb. JEB: Do you let yourself think about cases while you are running? JEB: But you do find that running, most- GB: Yes, absolutely. I think your mind wan- ly, but also mountain runs, rock climbing and ders a little and allows you to come up with climbing with your daughter definitely help some creative thoughts. At least for me. with work life balance, keeps you happy and able to focus better on your work? JEB: And that is ok, you still find it peace- GB: Yes, absolutely. ful that you are doing something for your- self even if work creeps in? Because some JEB: It’s so important to take care of your- people say they have to shut everything off self. We are finding so many lawyers who to have peace. are doing all of these great things. GB: Yes. I think it is okay. I try not to be GB: Yeah, well it has been fun to read the purely thinking about those, but you have to column because, like you said, everybody think about something. does something different while serving the same purpose. It’s fun to see that someone JEB: Especially when you are on a trail for loves looking at mushrooms, or birdwatch- 6 hours-- a lot of things that can go through ing, or table tennis, or knitting or what have your head! you. And I think a lot of us as lawyers don’t So, just to end with your renewed focus on end up knowing those things about each rock climbing, are there competitions or do other, so I think that is a nice effect through you just do it for fun? the column to learn about lawyers doing GB: Yeah, there are some great outdoor their stuff. cliffs in Bolton and some down in Killing- ton and up in the Northeast Kingdom, there JEB: And I appreciate you sharing your some really good stuff. I have mostly just stuff! Thank you for allowing me to interview been focused on what my daughter wants to you. do, which is so far mostly indoor. GB: Sure thing. Thank you. ______JEB: Well she is only 9 so the big rocks are Do you want to nominate yourself or a fel- a little scary. low VBA member to be interviewed for Pur- GB: She has been on this team that goes suits of Happiness? Email me at jeb@vtbar. to an occasional competition but mostly they org. just have these very sweet friendly practices with college-age coaches who are just help- ing them improve and have fun. That has been my challenge –the tricky work sched- ule thing is trying to get her to practice.

JEB: And you have to be careful what you wish for because all I seem to do is drive my son to soccer matches and watch them in a chair! At least when you are climbing you at www.vtbar.org THE VERMONT BAR JOURNAL • SPRING 2018 1 3 by Paul S. Gillies, Esq. RUMINATIONS The Militia Governed by the Civil Power The Fitful Collision

As required by Vermont law, the St. Al- to, and be governed by the civil power.” Ar- The essential duty of the militia was to bans militia gathered on the town green ticle 17 guarantees that “no person in this be ready to respond, to be called out on on the first Tuesday of June 1821 to - per state can, in any case be subjected to law- a Colonel’s orders, “upon any alarm, inva- form its annual exercises. Captain Heman martial or to any penalties or pains by vir- sion, or notice of the appearance of an ene- Green was commanding officer. At the tue of that law except those employed by my, either by water or land.” The militia was courthouse, adjacent to the green, Judge the army, and the militia in actual service.” obliged by “force of arms to encounter, re- Joseph D. Farnsworth was presiding over a Section 20 makes the Governor the “Cap- pel, pursue, ill and destroy such enemy, or jury trial. tain-General and Commander-in-Chief of any of them, by any fitting ways, enterprizes The sounds of fifes and drums disturbed the forces of this state,” but prohibits the or means whatsoever.” the trial, and Judge Farnsworth sent a Governor to command in person in time of Militia companies were organized on a court officer outside to order the Captain war or insurrection without the advice and democratic principle. The soldiers could to move off the green. Green replied, that consent of the Vermont Senate “and no elect their own captains. This helped pro- “he was not aware that a judge of the court longer than they shall approve thereof.”3 mote respect, but it also worked against possessed any authority to issue a mili- Section 59 directs that “inhabitants of this a too heavy hand in enforcing the laws on tary order; that himself and his men were State shall be trained and armed for its de- the militia, as officers were less likely to act engaged in the performance of duties re- fense, under such regulations, restrictions, knowing that their position depended on quired of them by the statute law of the and exceptions as Congress, agreeably to the continuing loyalty of their soldiers. state; that the public green was the place the Constitution of the United States, and The elite avoided military service. Farm- where the trainings had always been hold- the Legislature of this State, shall direct.” ers and laborers made up the ranks, and en, and was, in fact, the only place where The U.S. Constitution grants Congress this class distinction was not lost on them.6 a company could be maneuvered; that he the power to organize, arm, and discipline Rank mattered politically, as well as mili- should disturb the court as little as possible, the militia, treating all state militias as its tarily, and titles stayed with the officers to but that the training must go on.”1 own, its purpose “to execute the laws of the end of their days. There was a tinge of Judge Farnsworth, hearing this, ordered the Union, suppress insurrections, and re- class leveling in the early law. It required the the arrest of Captain Green. Green re- pel invasions.”4 Captain of the town militia to organize the sponded by commanding the troops to fix The Vermont militia statute was first en- company into divisions, ensuring they were bayonets and surround the courthouse. As acted in 1778, but no copies have survived. of equal size, “by connecting men of inter- he stood at the door of the building, he left The 1779 act, which was preserved, is be- est, poor men, and those that have been at orders that if he was not out in five minutes lieved to be the same as that of the previ- most expence in the present war, together that the force should take possession of the ous year. Every man age 16 to 50, unless in one class.”7 courthouse. He went inside, strode into the exempted, was enrolled. Each had to come There was training and there was war courtroom, and when he asked the judge equipped to the training. Every man had and rebellion, which engaged the militia, what noises were distracting him, he sug- to appear with a well-fixed firelock, the bar- and occasionally there were other duties. In gested the “gabble of the lawyers” might rel not less than three feet and a half long, 1778, ten soldiers were ordered to march be the cause, or perhaps the sounds of or other good firearm, plus a “good sword, and tread snow from Charlestown, New June training. “Let me hear no more of it,” cutlass, tomahawk or bayonet; a worm, and Hampshire to Wilmington, Vermont, to said the judge. priming wire, fit for each gun; a cartouch pack the ground for the sleighs that would But the training resumed, with “increased box or power and bullet pouch; one pound follow.8 energy.” Nothing more dramatic came of of good powder, four pounds of bullets for Training was at the heart of the militia this collision of civil and military powers that his gun, and six good flints.”5 Failing to ap- law. One or two days a year, each man had day, although historian L.L. Dutcher’s telling pear or failing to appear properly armed, to appear, properly equipped, to partici- of the story concluded with a scene in the resulted in a fine of 18 shillings. There were pate in drills. Discipline was everything. It tavern that evening, when the judge said to no uniforms; each man tucked a sprig of ev- must have been a challenge. It was the nois- the Captain, that he “guessed he had been ergreen into his hat as the only emblem to iest holiday on the calendar, louder that the a little too fast, and that he wished the mat- identify him as a member of the militia. Fi- celebrations of the fourth of July. The day ter buried in oblivion.”2 Thank you, Mr. fers and drummers had to supply their own began with a cannonade at dawn, called Dutcher, for not heeding this prayer. instruments. “saluting the Captain,” which announced Was Captain Green right, that a judge Ministers of the gospel, justices of the to the entire town what would follow.9 had no authority to issue a military order? peace, judges, college presidents and In 1792, Congress enacted the first feder- teachers, physicians and surgeons, school- al law on the militia, enrolling all members Legal History of the Militia masters, attorneys, one miller for each of a state militia as federal militia. The Pres- gristmill, sheriffs and constables, tanners ident was the commander-in-chief of the The Vermont Constitution includes four who make it their constant business, and federal militia, just as Vermont’s Governor direct references to the militia. The first, persons “disabled in body (with certificate was commander-in-chief of the state mili- in Article 16, provides that the “military from two physicians or surgeons)” were ex- tia.10 The federal power preempted state should be kept under strict subordination empt from militia duty. authority, but left the administration of the

14 THE VERMONT BAR JOURNAL • SPRING 2018 www.vtbar.org

state militia in local hands. exemption, requiring an annual payment of force James Breckenridge to abandon his The Vermont legislature fiddled with the two dollars to the town for use of the com- Bennington farm. The first formal exercis- militia law nearly every session after that. In mon schools by those who claimed it.14 es date from 1772, also in Bennington.23

Ruminations 1793, it revised the law entirely, explaining Once the immediate threat of invasion Towns established their militia to protect that the statutes had become “too compli- or rebellion ended, the enrolled militia their residents from attack by the French, cated for practical use.” The maximum age became a farce and an embarrassment.15 the British, and allied Indians. The Green was reduced to 45 years, and lawyers were In 1840, the population of Vermont was Mountain Boys were a Vermont militia. The no longer exempted from service. Field 291,948.16 A census of the enrolled militia taking of Fort Ticonderoga was a surprise and commissioned officers of town militias for that year showed four regiments, with a to the Congress, but in gratitude the Con- were still elective offices. There was if any- total of 26,304 men.17 The ideal of universal gress later voted to pay the soldiers, even thing a greater concern for record-keeping service was far from realized, given the dis- though Vermont’s status as a government and for enforcing the militia law than in pre- parity. Its glory days were over. It became a was yet to be recognized by the colonies. vious years, including an elaborate struc- mockery of good order and discipline. The relation between the State and the na- ture for courts-martial. Each company was Delaware had abolished the enrolled mi- tion would later be tested. obliged to meet for training twice a year, litia in 1831, Massachusetts in 1840, and The war service of the Vermont militia on the first Tuesday of May, and each regi- other states followed.18 Finally, in 1844, is legendary. At Hubbardton, Bennington, ment at least once a year. When mustered the legislature repealed every act relating and Saratoga, their fighting helped turn the out, each officer and soldier had to provide to the non-volunteer militia, “abolishing tide of the Revolutionary War in the north. himself with three days’ rations. The leg- all military organizations and trainings, and The militia was called out as needed, fol- islature promised relief to injured soldiers leaving the State with no defence against lowing the Royalton raid of 1780, the court and to the families of those who were killed foreign aggression, or force to secure in- riots of 1786, the response to the rem- in action. And just to be clear, and safe, ternal tranquility.” L.L. Dutcher thought nants of Shay’s Rebellion the following year, the act ended with a restriction against any this was a mistake. “The martial spirit of the enforcement of the embargo in 1808, non-commissioned officer or private firing the people was not merely allowed to de- among other crises. a musket in any public road or near any cline, but through the example of law-mak- They were called “flood wood,” because house on the evening preceding, on the ers, was made the subject of idle jest and of the motley nature of their appearance, day or evening of the training, without a di- ridicule.” He waxed nostalgic at the loss of also known as the “enrolled” militia, to dis- rect command, as “the good citizens of this June training as an institution. “The noisy tinguish them from the volunteer rifle and State are often injured in the discharge of drum and ear-piercing fife were silenced— cavalry companies that were formed in single guns on a muster or training day, or banners were furled, and plumes went some towns. The companies required uni- evening preceding.”11 drooping. Swords and guns were put aside forms. The Guilford volunteers wore blue Successive gubernatorial inaugurals al- to rust and corrode, and dashy uniforms uniforms “trimmed with yellow, large eagle ways included a recommendation to revise were packed away to become the pastur- buttons, white drill pants, gaiters or boots, the militia laws, and in particular to provide age of moths.”19 white vest, leather stock, and leather hel- arms to the soldiers, but the legislature In 1864, the Vermont legislature reenact- met with high tin crest from which flowed balked at the expense. Some old muskets ed an enrolled militia law. Every able-bod- long, red horse-hair, while from a cockade were provided by the federal government ied male citizen 18 to 45 years was liable for on the left ‘rose a tall, read feather plume to the State, but most soldiers had to pur- military duty.20 This law remained in effect with white top.”24 chase their own weapons. A good rifle cost until 1941, when a revised chapter on the The War of 1812 was the occasion for ma- $14 in 1830.12 National Guard was enacted, and the prac- jor conflicts between the State and the mili- The law was reworked in 1818, when tice of requiring universal manhood military tia. In one instance, a contingent of soldiers June and September trainings were or- service finally ended for good in Vermont.21 were marched to Colchester in September dered. September training was abolished of 1813, and ordered to vote for the Demo- in 1837, and June extended to two days, The Vermont Militia cratic-Republican candidate Jonas Galusha, with a state muster every three years. on penalty of being “cobbed” when they The Council of Censors reviewed the The militia was not a voluntary service. returned to camp.25 1818 militia act in response to a claim that It was not a draft. It was, with some ex- Writing the official history of the- Ver the act violated Article 16 of the Vermont ceptions, universal enrollment for all adult mont National Guard, Peter Haraty called Constitution. The militia was authorized to males, from 1779 to 1844, when the law the exchange of paperwork between Ver- adopt rules governing the militia when not was repealed. It was a grand, democratic mont Governor Martin Chittenden and the in actual service, which suggested to some idea, essential to the defense of Vermont Vermont militia stationed at Plattsburgh in that this was imposing law martial on the at critical times, including the battles of the November of 1813 either an appalling ex- soldiers. The committee appointed to re- Revolutionary War, the War of 1812, and ample of insubordination or something ad- view the question concluded that the arti- the Fenian Rebellion of 1837. It was also, mirable.26 In November of 1813, Governor cle “was not intended to limit the powers of in time, as Dutcher called it, the “[v]ener- Martin Chittenden issued a proclamation, the Legislature in the enaction of laws reg- able old humbug—admirable burlesque of ordering the Third Division of the Vermont ulating the militia not in actual service, to every thing military…Saturnalia of fun, frol- Militia home from New York to protect the secure the citizens from an infringement of ic and roystering good humor, jovial, gro- Vermont frontier.27 The Governor sent Gen- their rights by military commanders in actu- tesque, obstreperous, grand carnival of fizz- eral Jacob Davis to deliver the proclama- al service,” but rather to avoid any acts of pop-Bang.”22 It was at times the savior of tion, but he was made a temporary prisoner “arbitrary will of a military commander.”13 Vermont, at other times, sadly, a drunken of the Vermont militia, until the battle was The 1837 revision of the Vermont mili- clown. over. The militia wrote Chittenden a stern tia laws required every “able-bodied white There were local militia in place through- rebuke in reply: male citizen of this state, or of any oth- out the colonies, long before the first set- We are not of that class who believe er of the United States residing within this tlers came to Vermont. The first local Ver- that our duties as citizens or soldiers state,” age 18 to 45, to be subject to mili- mont militia was organized about 1764, are circumscribed within the narrow tary duty. It added a conscientious objector to oppose New York troops’ attempt to limits of the Town or State in which we

16 THE VERMONT BAR JOURNAL • SPRING 2018 www.vtbar.org Ruminations reside; but that we are under a par- lar carnival of fun and masquerade, as well amount obligation to our common as parade—a display of the cocked hat, country, to the great confederation of gorgeous epaulette and bright cockade; States… day of salutes, waking up of officers; which We consider your proclamation as a wake up was a rousing volley from the un- gross insult to the officers and soldiers der officers and privates, sometimes taking in service, inasmuch as it implies that the door off its hinges, to be followed with they are so ignorant of their rights as a treat, marching and countermarching, to believe that you have authority to drinking, toasting and sham fights; a day command them in their present situa- opened with the obstreperous clamor of tion, or so abandoned as to follow your the Sargeant’s call, and following with the insidious advice [and] regard[ ] it with shriek of the fife and the noise of the drums. mingled emotions of pity and con- . . . Yankee Doodle, fizzle-pop-bang, and tempt for its author, and as a striking the mock capture of the Red Coats, were monument of his folly.28 all there.”32 The “ring of wrestle” was a fea- ture of trainings, and to be the “bully of the These were tough words for a Governor. town” was an honor, duly celebrated.33 Some soldiers did leave New York, and The heroism inherent in the idea of a lo- one was killed by a member of the militia cal militia began to wane, as more men sent to bring back the deserters. The sol- failed to turn up for trainings or were found dier who fired the shot was Alvah Sabin, to have “delinquencies in equipment.” who was tried twice for murder in Frank- Worcester and Middlesex had combined lin County, but not convicted. Sabin later to form one militia company, alternating served as Vermont Secretary of State and June training every other year. Justice of in Congress.29 the Peace Cyrus Ware came to Worcester Before winter set in, the troops returned one year and tried 17 for disobedience to to Vermont. War hibernated when the lake the militia laws. He empaneled two juries, was no longer a scene of battle. who worked for three days hearing the cas- When word reached the Congress, the es; while one was deliberating the other exchange between the Vermont Governor was hearing another. The juries didn’t take and the Third Division triggered one mem- the process seriously, and in the end found ber to propose a resolution urging the Pres- only one man guilty. Justice Ware was an- ident to instruct the Attorney General to noyed by noises from the street by boys. prosecute Martin Chittenden for procuring In response, one officer opened the win- or enticing soldiers to desert. A Represen- dow and “gravely commanded a flock of tative from Maryland called it treason, a vio- geese underneath the window to stop their lation of the federal constitution. Vermont’s noise, as they were disturbing the court.” representative James Fisk, a Barre lawyer The Justice commented, as he left town, and Democrat, while no fan of the proc- that the people of Worcester “had man- lamation, urged caution, explaining that aged this thing the d-----d’st of anything he “very few Vermonters approved of the pe- ever saw.”34 tition.”30 The House, recognizing it had no The militia became a source of embarrass- constitutional power, tabled the resolution. ment throughout Vermont. In Montpelier, Chittenden lost the next election as a the company lacked esprit du corps, con- consequence, the last Federalist to hold sidering “military duty a thing to be gotten that office. That the Vermont militia would rid of when it could be, and when it could defy its Commander-in-Chief this way is not, then to be endured and got along with still shocking, but it perfectly illustrates the in the easiest manner possible.” Captain principle of preemption. The historic record Taplan led the militia in parade down one does not include any involvement of federal of the town’s streets at June training. He officers in this brutal exchange. turned into a side street, but neglected to The 1813 Council of Censors objected to order the militia to wheel, and looked back the law that suspended civil process against to see them continuing straight down the officers and soldiers during actual service, highway.35 passed the previous year, believing it vio- At the first June training held in Iras- lated the U.S. Constitution’s prohibition burgh, one man took the sham fights too against impairment of contracts and the seriously. His name was Kittredge, who militia provisions of Vermont’s Constitution bit off a man’s thumb while wrestling, and and urged its immediate repeal. The Cen- thereafter known as “cannibal Kittredge.”36 sors stated it raised the military over the The Glover militia was part of the crew civil authority. A few weeks later, the legis- that were working to open up the outlet to lature repealed the act.31 Long Pond in 1810. They too became too excited, and the entire pond was released The Fall from Grace from what was later called Runaway Pond, down into Glover and all the way to Lake G.N. Brigham described training day as Memphremagog. Rum played an important “a day of jollity for old and young; a regu- role.37 www.vtbar.org THE VERMONT BAR JOURNAL • SPRING 2018 1 7 Drunkenness was a feature of June train- tiff claimed the process was defective as acquiesced in, we have not thought it nec- ing. The parade ground would be surround- his name wasn’t on the official list, but the essary to go into that point.” As for the ir- ed by retailers. In Brattleboro, they sold yel- Court held he was still obliged to serve. regularity, it was excusable. “And it would

Ruminations low gingerbread, smoked herring, beer, ci- That detail was unimportant. Chief Judge be the height of injustice to hold military of- der, and “the contents of those beautiful Richard Skinner carefully avoided “a more ficers, whose main duties are not of a cleri- cut-glass decanters of the olden time.”38 At careful consideration of the question as to cal cast, to a greater strictness in such mat- Westminster, “Toddy was abundant, dealt the effect of a military tribunal in imposing ters than would be required of the judiciary, freely to the company by the officers, and fines” by recognizing that the judgment by whose duty it is especially to know and to to the multitude at the store and the hotel” the regimental field officer was judicial, not follow the forms of law.”47 during June training.39 This led to tragedies ministerial, and as the judgment of a court John A. Warner claimed exemption that became legend. In Halifax, in 1778, having jurisdiction over a matter cannot be from the militia laws and from a fine for Captain John Gault was killed by one of collaterally attacked and as no appeal had non-appearance at a training. Warner had his men. At the time there was a custom to been filed with the field officer, the judg- been committed to jail on execution of a “honor an officer by firing over his head.” ment was final.44 fine, and appealed his conviction. Warner Gault was leaving the tavern, and made an Benjamin Fry’s horse was taken, with its claimed he was disabled, having fractured unexpected hop, which brought his head saddle, by Samuel Canfield, by a writ of at- ribs from childhood, and was not “able- into contact with a bullet that killed him.40 tachment. In court, Fry argued his horse bodied.” Judge Josiah Royce was not per- These and other stories litter the town and saddle were exempt from attachment suaded Warner had a point. Because War- histories. By 1830, June training began to under the state’s militia laws, as he was a ner’s condition was not “visible and notori- decline. cavalryman. On appeal, Judge Samuel K. ous,” Warner should have presented a cer- Temperance was the spirit of the age, Williams first wondered if a saddle could be tificate from the regimental surgeon to jus- and the drunken troops at the muster dem- included as an “accoutrement,” as the term tify his claim for exemption from the mili- onstrated everything concerned citizens was used in the militia law, as the term usu- tia law. “The excuse would seem to be en- needed to know about the need for prohi- ally meant “dress and military trappings,” joined as a measure of mere prudence, to bition, which finally came in 1852. Even af- but found a saddle and bridle were not free prevent the inconvenience of an unjust or ter the enrolled militia system ended, a few from attachment, as they are “kept for com- groundless prosecution; not as an appeal to towns continued training, unofficially, but mon and ordinary use, and a benefit and any judicial authority.” Royce looked back by the time of the Civil War, as one town profit” and derive a “benefit and profit” to the 1824 decision in Mower v. Allen as historian explained, “Vermont had no effec- to the owner, believing that the legislature settling the question of how, “in impos- tive military organization. Her uniformed would not have intended to include that ing and remitting fines, militia officers act militia consisted of a few unfilled compa- equipment among its exemptions.45 judicially, and that their final decisions are nies, in some of the principal villages, while Morris Kingsbury sought to collect a fine conclusive.”48 the enrolled militia was a myth.”41 for the failure of two captains of the militia Hiram Darling sued to recover a mare, Beginning in 1846, students at the Uni- to make the required returns of the 1830 seized on account of his delinquency of mil- versity of Vermont started an annual satiric June training. The captains had been jailed itary duty. Darling claimed he had been in recreation of June training. It ended in 1855 as a consequence. The jury had agreed with feeble health for two years on account of after students fired a cannon that shattered Kingsbury. On appeal, the captains argued a bodily infirmity called a breach, and was every window in Old Mill.42 the process was flawed. Chief Judge Titus disabled. Judge Samuel Phelps ruled that Hutchinson disagreed. That the assessment physical infirmity is not an absolute exemp- The Militia in Court of the fine was more than 60 days before tion from duty. “What is to be its effect, in the filing of the collection action was not any given case, is a question for the exer- The militia laws were largely self-execut- a problem, as long as demand was made cise of discretion and judgment, and which ing. The fines collected from those who by the militia within that period. That no must necessarily be left, like all questions failed to appear or failed to appear proper- record was made of the demand was also of a similar character, to the adjudication of ly equipped were kept by the militia. When not fatal. The judge explained, “Men are some tribunal, whose decision is conclusive, punishments were ordered for nonappear- not appointed to military offices because of and which cannot be made accountable, in ance or lack of equipment, the process any supposed acquaintance with legal pro- a civil action, for errors in the exercise of started with a formal notice and a court- ceedings: and more must not be required its judgment.” Defining “able-bodied,” martial. But the militia was not entirely free of them, than is either directed by statute, Phelps understood it could not mean free- of judicial review. In several cases reported or clearly implied as a matter of duty.”46 dom from all physical ailment. But even if by the Vermont Supreme Court, there were The militia law was challenged in 1834 there were some invisible defect that would fights over property seized to pay fines and as unconstitutional because it allowed a incapacitate a soldier that was not found by charges. military officer to serve as prosecutor and the officer, the remedy should be sought The constitutionality of state statutes judge, with no right to a trial by jury. The before the regimental officers, and not the authorizing the levying against proper- Eighth Amendment and Article 12th were courts, as the militia laws provided.49 ty for failure to serve in the militia when invoked by Joseph H. Brainerd, who was Harvey C. Gilman failed to appear for a called into actual service was settled by the “amerced for delinquency of military duty.” parade of his local militia. He was court- U.S. Supreme Court in Houston v. Moore A small quantity of cloth was taken from martialed, and appealed the decision. He (1820).43 In 1824, Mower v. Allen first con- him by Daniel Sanborn, executing an order claimed that while he did not attend the fronted the question under Vermont law. from Captain Cornelius Stilphin, Jr. Stilphin June training in 1838, the law did not ex- Two men who took another’s ox were sued hadn’t included the “Jr.” after his name on a pressly allow the county court to fine him for trespass. In their defense they produced part of the order, and the trial court refused for non-attendance. The decision turned a writ of execution from an officer, ordering to accept the document into evidence. On on the effect of the statute of 1837, which the seizure as a penalty for the ox’s owner appeal, Brainerd raised the constitutional had repealed the militia law of 1818 and re- not appearing at the annual muster. The Su- claim for the first time, and this was fatal to formed how the Vermont militia was orga- preme Court affirmed the decision to up- his claim. Judge John Mattocks went on to nized. Judge Jacob Collamer was uncon- hold the seizure of the animal. The Plain- explain that as “this law has been so long vinced. “As a general rule the repeal of a

18 THE VERMONT BAR JOURNAL • SPRING 2018 www.vtbar.org Ruminations law puts an end to that which was created in spite of circumstantial irregularity of the accidentally by members of the local militia directly by the law itself. But when a matter proceeding. As the militia had jurisdiction, company during a drill.53 is authorized by the law to be done, and it that would suffice.51 Governor Madeleine Kunin joined other is done, and rights and duties of a public Samuel Spear demanded a jury after he governors in 1986, announcing she would or private concern, are thereby created and was amerced a fine for non-performance not consent to any request to send the Ver- accrue, they are not undone nor affected by of military duty. Judge Milo Bennett found mont National Guard to Honduras for train- a repeal of such law.” it unnecessary to consider whether he was ing exercises, calling it a “backdoor escala- The judge held that the authority to or- entitled to a trial by jury in the Justice’s tion” of the American military presence in ganize a militia was based on an act of Con- court, as he had had his day in court, and Central America. The U.S. Supreme Court gress. “The state legislature could no more he had no right to challenge the outcome ruled in 1990 that governors do not have disorganize or disband the militia, which it after the fact.52 the power to resist orders to send their had organized, by direction of congress, That decision was the last of the ap- state’s National Guard for overseas ser- under the constitution, than the board of peals relating to the enrolled militia. With vice.54 officers could disorganize it after having the end of that system, there was no lon- Captain Green was wrong. The militia completed their duty of organization under ger any contest over fines, seizures of prop- was never entirely separate from the civil or the act of the legislature. The states, sever- erty, or fine points of exemption. The his- criminal law, or the intervention of courts, ally, cannot thus destroy this branch of the tory of the militia after 1844 relates only to although the Supreme Court certainly gave national defence, nor do we think our leg- the volunteer force, later organized by the significant deference to the decisions of the islature intended or attempted so to do.”50 Vermont National Guard, which has served officers of the militia. Governors Chitten- Daniel M. Brown attempted to resist his honorably in foreign and domestic conflicts, den and Kunin were also wrong. The fed- court martial for failing to appear for duty. emergencies, and disasters. Vermont sol- eral government overrules the states when He was amerced a fine, which was then lev- diers served in every war or conflict since a national emergency arises. ied on his cow. Brown claimed unlawful that time with distinction, and the memo- trespass for the taking of the animal. He ry of the rough nature of the enrolled mili- Hue and Cry had not been provided with written charg- tia was forgotten. There were still incidents. es, which had been delivered to him orally. The first losses Vermont suffered in the Civil Think you’re secure now from being Judge Isaac Redfield held him to the fine, War were eight residents of Benson, shot called out to aid and defend? Vermont law

www.vtbar.org THE VERMONT BAR JOURNAL • SPRING 2018 1 9 mont Historical Gazetteer V:II, 56. 25 Assembly Journal 1813, 144-147. 26 Peter Haraty, “Dual Obligation and Loyalty,” in Haraty, Put the Vermonters Ahead, 55. 27 Ruminations E.P. Walton, ed., Records of the Governor and Council of the State of Vermont IV (Montpelier, Vt.: Steam Press of J. & J.M. Poland, 1876), 492. Chittenden’s letter was intended to rally Vermont itself to the cause of repelling the enemy. He urged citizens, in the event of a British invasion, to “fly at once to be nearest post of danger, and that the only rallying words will be—OUR COUN- TRY.” 28 E.P. Walton, ed., Records of the Governor and Council of the State of Vermont VI (Montpelier, Vt.: Steam Press of J. & J.M. Poland, 1878), 493- 494. 29 Dutcher, “St. Albans,” in Hemenway, Vermont Historical Gazetteer II, 295. 30 Id. at 495. 31 Records of the Vermont Council of Censors, retains the common law idea that a sher- clear the touch hole of debris. 198, 229. 6 32 iff or other law enforcement officer may Peter H. Haraty, “Dual Obligation and Loyal- G.N. Brigham, “Washington County—Intro- ty,” in Haraty, Put the Vermonters Ahead, 75. ductory Chapter,” Abby Maria Hemenway, ed., require the aid of all persons to enforce 7 “An act for forming and regulating the militia,” Vermont Historical Gazetteer 55 IV (Montpelier, Vt.: the law. You needn’t show up with a pre- State Papers XII, 62. Vermont Watchman and State Printers, 1882), 5. scribed weapon, but you can be fined $500 8 Volney Forbes, “The Early History of Wilming- 33 David Reed, “Essex,” in Abby Maria Hemen- for not giving assistance when asked. ton, 1751-1870,” in Abby Maria Hemenway, ed., way, ed., Vermont Historical Gazetteer I (Burling- Vermont Historical Gazetteer V:II (Brandon, Vt.: ton, Vt.: A.M. Hemenway, 1867), 780. Carrie E.H. Page, 1891), 8. 34 Charles C. Abbot, “Worcester,” in Hemenway, The Right to the Common 9 Walter F. Glover, “June Training at Fenton’s Vermont Historical Gazetteer IV, 909. Store,” Vermonter 29 (1924), 172. 35 L.L. Dutcher, “June Training in Vermont,” in In Whittingham, there was a similar strug- 10 Burton Rubenstein, “From Bennington to Ti- Abby Maria Hemenway, ed., Vermont Historical gle to that experienced by Green. The mi- conderoga,” in Peter H. Haraty, Put the Vermont- Gazetteer II (Burlington, Vt.: A.M. Hemenway, ers Ahead: A History of the Vermont Nation- 1871), 350. litia had traditionally used the common for al Guard 1764-1978 (Lansing, Mi.: University of 36 E.P. Colton, “Irasburgh,” in Abby Maria Hem- its June training, but when the day arrived Michigan Press, 1979), 2. enway, ed., Vermont Historical Gazetteer III (Cla- the field was full of boys engaged in a base- 11 “An act regulating and governing the militia remont, N.H.: The Claremont Manufacturing ball game. To show its power, the militia of the state of Vermont and for repealing all laws Company, 1877), 249. 37 The WPA Guide to marched onto the field with fixed bayonets heretofore passed for that purpose,” October Federal Writers’ Project, 29, 1793, State Papers of Vermont XV, 211-230. Vermont: The Green Mountain State (Boston: to drive the boys off. But the boys protest- 12 John K. Mahon, History of the Militia and the Houghton Mifflin Company, 1937), 241. “At the ed. As the militia moved to engage the National Guard (New York: Macmillan Publishing time people regarded Runaway Pond as a warn- boys, they proceeded to knock off the bay- Company, 1983), 82. ing to men against rashly tampering with the 13 onets from the rifles with their bats. The mi- Records of the Vermont Council of Censors, work of Nature and God.” 248. 38 Charles Kellogg Field, “Addenda to Biograph- litia retreated in disorder. “And finally the 14 “An act, for regulating and governing the Mili- ical Sketches,” in Hemenway, Vermont Historical Captain, with his men, peaceably withdrew tia of this State, Acts and Resolves Passed by the Gazetteer V, 189. to drill, a wiser, if not a better man.” Lat- Legislature of the State of Vermont 1837 (Burl- 39 Clark Jillson, “Whitingham,” in Hemenway, er, their Captain asked a lawyer to draft a ington, Vt.: Chauncey Goodrich, 1837), 19-59. Vermont Historical Gazetteer V, 700-701. 15 The Eighteenth Brumaire 40 warrant to arrest the boys. John E. Butler Karl Marx began his H. Eastman, “Halifax,” id., 420. of Louis Bonaporte with this: “Hegel says some- 41 Joseph Clarke, “Goshen Gore,” in Hemenway, told them that the boys had as good right where that all great historic facts and personages Vermont Historical Gazetteer I, 436. to the public common, or highway, as “he occur twice. He forgot to add: ‘Once as tragedy, 42 John D. Thomas, University of Vermont (Car- had with his bayonets.”56 and again as farce.’” Karl Marx, The Eighteenth leston, S.C.: Arcadia Publishing, 2005), 26. 43 ______Brumaire of Louis Bonaporte, trans. Daniel De Houston v. Moore, 18 U.S. 1 (1820). 44 Mower v. Allen Paul S. Gillies, Esq., is a partner in the Leon (Chicago: Charles H. Kerr & Company, , 1 D.Chip. 391, 393 (1824). 1913), 9. He went on, “Man makes his own his- 45 Fry v. Canfield, 4 Vt. 9, 10 (1831). Montpelier firm of Tarrant, Gillies & Rich- tory, but he does not make it out of whole cloth; 46 Kingsbury v. Whitney, 5 Vt. 470, 478 (1833). ardson and is a regular contributor to the he does not make it out of conditions chosen by 47 Brainerd v. Stiphin, 6 Vt. 9, 14 (1834). Vermont Bar Journal. A collection of his col- himself, but out of such as he finds close at hand. 48 Warner v. Stockwell, 9 Vt. 9, 18-19 (1836). 49 umns has been published under the title of The tradition of all past generations weighs like Darling v. Brown, 10 Vt. 148, 152 (1838). an alp upon the brain of the living.” 50 Gilman v. Morse, 12 Vt. 544, 552-553 (1840). Uncommon Law, Ancient Roads, and Other 16 https://www.census.gov/dmd/www/resap- 51 Brown v. Wadsworth, 15 Vt. 170, 173 (1843). Ruminations on Vermont Legal History by port/states/vermont.pdf 52 Spear v. Flint, 17 Vt. 497, 498 (1845). the Vermont Historical Society. 17 G.G. Benedict, “Military History,” in Charles 53 Anthony Marro, “Vermont’s Local Militia Units, ______Spooner Forbes, Charles R. Cummings, eds., The 1815-1860,” Vermont History 40, 28. Vermonter: The State Magazine 54 1 L.L. Dutcher, The History of St. Albans, Vt.: Civ- 7-8, 263. Perpich v. Department of Defense, 496 U.S. 18 History of the Militia and the National il, Religious, Biographical and Statistical (St. Al- Mahon, 334 (1990). Guard 55 bans, Vt.: Stephen E. Royce, 1872), 353. , 83. 24 V.S.A. §§ 300, 301. 19 Acts and Re- 56 2 Id., 354-355. “An act in relation to the militia,” Clark Jillson, “Whitingham,” in Hemenway, solves of the Vermont General Assembly 3 The words “in time of war or insurrection” 1844 Vermont Historical Gazetteer V, 700-701. were added in 1836. Records of the Vermont (Burlington, Vt.: Chancey Goodrich, 1844), 8-10; Council of Censors Dutcher, St. Albans, 354. , ed. Paul S. Gillies and D. 20 Gregory Sanford (Montpelier, Vt.: Secretary of “An act for organizing the militia,” No. 1, Acts State, 1991), 761-762. and Resolves Passed by the General Assembly of 4 the State of Vermont 1864, 3-20. U.S. Constitution, Art. 1, Sec. 8. 21 5 “An act for forming and regulating the militia, V.S. § 7161 (1947). 22 Dutcher, St. Albans, 352. and for encouragement of military skill, for the 23 better defence of this State,” February 16, 1779, William L. Greenleaf, “The Vermont Militia,” Vermonter State Papers XII, 37-65. A worm is a device to 3 (August 1897), 1. 24 J.W. Phelps, “Guilford,” in Hemenway, Ver-

20 THE VERMONT BAR JOURNAL • SPRING 2018 www.vtbar.org

by Mike Servidio, President and CEO of TCI Technology Consultants, Inc. TECH TIPS Phishing Attacks

Did you know that 90% of modern data Watch out for addresses that • A physical address for the brand breaches now involve a phishing attack? contain typos in the organization or institution These attacks usually consist of fake name (think amaz0n.com) • An unsubscribe button emails designed to look like they’re com- • If either of these items are missing ing from a brand, person or institution you 2) Check the Salutation it’s probably fake. trust. • If you do business with an orga- Their goal is to entice your clients to click nization, the first line of the email 5) When in doubt, delete a link or download an attachment, which, in should always contain your name. • If you don’t know the sender, or turn, puts malicious files on your computer. Don’t trust impersonal introduc- even if something seems off, de- This can enable hackers to steal your iden- tions like “Dear Customer.” lete the email. If it’s not fake, the tity, breach your system and more. sender will contact you another The best way to defend yourself against 3) Use your mouse over way or send the message again. phishing attacks is to train yourself and • Hover over an email link to see • To protect your local computer your staff to identify phony emails before the full URL it will direct you to. and office network you may want they click on them. Do NOT click the link- just over. If to look at it on a tablet like an the address isn’t where you’d ex- iPad. Also do this when you are Five Easy Ways for you to spot a fake pect to go, don’t click it. Check all not connected to your local office Email; the links – if the URLs are all the network but outside of your net- same, it’s likely a phishing email. work. 1) Who’s the real sender? • Make sure the organization name 4) What’s in the footer? in the “From” field matches the • The footer of any legitimate email address between the brackets. should contain, at minimum:

Battle of Wits!

Last contest was too close to call—but we will have a victor soon. Keep those submissions coming. Members are once again invited to bring forth their truly dizzying intellect and join the battle of wits! We’d love to hear from you! Montpelier cartoon artist (and lawyer) Kathy Fechter has once again graciously provided us the above cartoon for our fierce competition. Submit your proposed caption to the above ‘Vermont spring canyon’ cartoon to [email protected]. The deadline to submit your caption is June 1, 2018.

22 THE VERMONT BAR JOURNAL • SPRING 2018 www.vtbar.org by Teri Corsones, Esq. WHAT’S NEW? The Vermont Commission on the Well-Being of the Legal Profession

On January 2, 2018, the Vermont Su- fidential interventions for lawyers, judges Commission receives from lawyers, judges, preme Court established the Vermont and law students struggling with mental law students, paralegals, and anyone else Commission on the Well-Being of the Le- health, well-being and/or substance abuse connected with the legal profession willing gal Profession. In the Commission’s Charge challenges; (2) Develop a plan to support to provide input, the better. and Designation, the Court referenced re- and sustain a Lawyers Assistance Program We owe it to ourselves, to our families, cent studies that reveal alarming statistics in Vermont, to assist lawyers, judges and to our clients, and to our profession to do regarding mental health and substance law students with mental health, well-be- all that we can to address this critical issue abuse among legal professionals. For ex- ing and/or substance abuse challenges; ______ample, a December 2016 national study of and (3) Provide on-going educational op- Teri Corsones, Esq. is the Executive Di- practicing lawyers found that between 21 portunities for lawyers, judges and law stu- rector of the Vermont Bar Association and and 36 percent of lawyers qualify as prob- dents regarding mental health, well-being is the Chair of the Vermont Bar Association lem drinkers, approximately 28 percent and/or substance abuse self-assessments, Committee of the Commission. struggle with some level of depression, 19 programs and resources.6 ______percent suffer from severe anxiety and 23 There are resources available for creat- 1 Patrick R. Krill, JD, LLM, Ryan Johnson, MA 1 & Linda Albert, MSSW, The Prevalence of Sub- percent have elevated stress. A similar ing a state-wide action plan. The National stance Use and Other Mental Health Concerns study of law students revealed that 25 per- Task Force on Lawyer Well-Being issued a Among American Attorneys, J. Addict. Med. cent of students were at risk for alcoholism, report in August 2017 entitled “The Path 2016 Feb; 10(1); 46-52. 17 percent experienced some level of de- to Lawyer Well-Being: Practical Recom- 2 Jerome M. Organ, David B. Jaffe & Kather- pression, 14 percent had severe anxiety, 23 mendations for Positive Change.”7 The Re- ine M. Bender, Ph.D., Suffering in Silence: The Survey of Law Student Well-Being and the Re- percent suffered mild or moderate anxiety port contains 44 recommendations, includ- luctance of Law Students to Seek Help for Sub- and 6 percent had serious suicidal thoughts ing recommendations for judges, regula- stance Use and Mental Health Concerns, 66 J. in the past year.2 tors, legal employers, bar associations, law Legal Educ., Autumn 2016, at 1, 116–56 Although formal studies particular to schools, lawyer assistance programs, and 3 Michael Kennedy, Lawyers Helping Lawyers, Vermont have not been undertaken, Ver- lawyer professional liability carriers. Ethical Grounds: The Unofficial Blog of - Ver mont’s Bar Counsel, March 3, 2016: https://vt- mont Bar Counsel Mike Kennedy has com- Vermont’s Commission includes each of barcounsel.wordpress.com/2016/03/03/lawyers- mented in his weekly “Ethical Grounds: these stakeholder groups in the form of helping-lawyers/. The Unofficial Blog of Vermont’s Bar Coun- committees that have been tasked with 4 Michael Kennedy, Five For Friday #108, Eth- sel” that there’s no reason to presume that reviewing the recommendations for each ical Grounds: The Unofficial Blog of Vermont’s 3 Bar Counsel, March 2, 2018: https://vtbarcoun- the statistics in Vermont are any different. of the separate stakeholder groups. Each sel.wordpress.com/2018/03/02/five-for-fri- In fact, since September 2016, “as many committee will meet over the next sever- day-108/. lawyers have had their licenses transferred al months, and will then submit a report 5 Id. to disability inactive status due to mental to the Commission regarding the feasibil- 6 Vermont Commission on the Well-Being of the health or substance abuse issues as did in ity of the National Task Force recommen- Legal Profession, Charge and Designation, Janu- 4 ary 2, 2018: https://www.vtbar.org/FOR%20AT- the previous 16 years.” dations for Vermont, as well as the feasi- TORNEYS/Vermont%20Commission%20on%20 In a recent Ethical Grounds edition, Mike bility of any other recommendations appli- the%20Well-Being%20of%20the%20Legal%20 discussed even more sobering statistics. cable to the committee’s subject area. By Profession.aspx. (can be found on the vtbar.org Citing a recent Substance Abuse and Men- December 31, 2018, the Commission will website under For Attorneys). 7 Bree Buchanan and James C. Coyle, Chairs, tal Health Services Administration nation- compile the committee recommendations National Task Force on Lawyer Well-Being Re- al survey on drug use and health, he not- into a state action plan with specific pro- port: Creating a Movement to Improve the Well- ed that the survey estimated that approxi- posals and any accompanying related pro- Being in the Legal Profession, August 14, 2017. mately 4% of Vermonters had experienced posed rule changes, for submission to the August 2017 Report at: https://www.american- serious thoughts of suicide over the past Vermont Supreme Court. It is anticipated bar.org/content/dam/aba/images/abanews/ ThePathToLawyerWellBeingReportRevFINAL. year. Extrapolating the 2,700 lawyers with that the plan will include a recommenda- pdf. active licenses in Vermont, one could pos- tion that the Court support and sustain a it that 108 Vermont lawyers have had seri- Lawyers Assistance Program to assist those ous thoughts of suicide over the past year. in the legal profession with mental health, The tragic facts are that five Vermont at- wellness and/or substance abuse challeng- torneys have committed suicide in the past es. 3.5 years-- two in 2018.5 We need to do all In order for the Commission to do its job that we can to ensure that help is readily well, it needs input from legal professionals available to anyone in the legal profession throughout the state in the coming months. who needs it. A plenary session about the Commission is Towards that end, the Commission was scheduled at the VBA Mid-Year Meeting established to create a state-wide action on Friday, March 23. Information about the plan with concrete proposals for the Su- Commission, its committees, and how to preme Court to consider with three specif- provide input is posted on the VBA website ic directives: (1) Develop a policy for con- under “For Attorneys.” The more input the www.vtbar.org THE VERMONT BAR JOURNAL • SPRING 2018 2 3 WHAT’S NEW Interview with VLS Dean Thomas McHenry

Teri Corsones: Tom, on behalf of Ver- mont Bar Journal readers everywhere, thank you for the chance to visit with you today. Thomas McHenry: It’s my pleasure.

TC: Now, it’s been about 8 months since you began work in July as the 9th President and Dean of the Vermont Law School. Does it feel like that was just yesterday, or do you feel like you’ve been here forever? TM: Both. It feels like I started yester- day because it’s still so new, and it feels like I’ve been here for years on certain issues. I came from private practice, where I man- aged my time in increments of one tenth of an hour. That was both demanding, but at the same time, freeing, because it gave me a clear direction in terms of what I was supposed to do – solve a particular client’s problem. At Vermont Law School, my re- sponsibilities are so much broader. There aren’t enough hours in the day to do all of the things that I need to do. I do like doing TC: That degree must have tied in nicely Vermont Law School benefitted greatly a lot of different things at the same time, with your career as an environmental law- from its early emphasis on environmental though, and I have found that I like be- yer. law -- there was a great need for people ing the dean of a law school. I don’t know TM: It turned out that way. After college, who understood environmental laws and whether I’m any good at it yet. And I guess I taught English for a year at a school in we were teaching it. we won’t know for another couple of years. Boston, and then applied to both law and Nonetheless, it’s been really, really fun so forestry school at the same time to com- TC: My Journal article at Cornell in 1982 far. bine my interest in both. I should confess was about NEPA’s extra-territorial effect. that family may have played some role as TM: There you go! That was the time TC: That’s great to hear! Getting into my great grandfather, my father, my wife’s environmental law took off, and Vermont your background a bit, I was curious about father, and my wife’s brother were all law- Law School was both lucky as well as clev- your schooling. You majored in history in yers. er in focusing early on environmental law, college, and then got a master’s in forest because the practice grew greatly in the science, at Yale of all places. TC: Sounds like law is in your blood. 1980s, 1990s and into the 2000s. TM: Seems pretty strange, particularly TM: I pretended that wasn’t the case, a master’s in forest science at Yale, which but I suppose it was. I was admitted to law TC: It looks like you spent quite a bit of is not well known for its forestry programs. school the same year I was admitted to the time working internationally. How did that Here’s the answer in two parts. The first Yale forestry program, so I deferred for two come about? part is that the degree is now called a Mas- years before entering NYU Law School. I TM: When I graduated from law school, ter of Environmental Management, and helped to re-start the Environmental Law I was eager to work overseas so I applied that’s what it essentially was at the time Society at NYU, which was really fun, And for a number of positions and was lucky that I obtained it. The second part is that I worked for an environmental law firm as enough to spend a year working in the Na- Yale was the first forestry school in the na- well as for the NRDC, a nonprofit environ- tional Parks Department of the Republic tion, founded in 1901 by Teddy Roosevelt’s mental group, so I really had the chance to of China, located on the island of Taiwan. chief forester, Gifford Pinchot, whose fam- explore environmental law early on. I was a research fellow in their main office ily gave half a million dollars to start a for- earning $750 a month – paid in cash at the estry school. TC: Your timing was great in terms of beginning of each month. Working with when environmental law started taking off. some Chinese law professors and govern- TC: A complement to the national for- TM: It was. All the major federal envi- mental regulators, I helped write a wildlife ests that Teddy Roosevelt is so well known ronmental laws were enacted in the 1970s, law for Taiwan. I then clerked for a federal for? starting with the National Environmen- judge in Sacramento for two years, and he TM: Exactly, Roosevelt had designated tal Policy Act in 1969, the Clean Air Act in had a lot of environmental cases. As a re- these national forests, but there were no 1970 and the Clean Water Act in 1972. By sult of the wildlife law research I had done professionally trained foresters in the U.S. the late 1970s, there was a set of regula- in Taiwan, I was retained as a consultant by to manage them. The first eight heads of tions to enforce those federal laws, so the the United Nations to write a Wildlife and the U.S. Forest Service were graduates of prosecution and enforcement of environ- National Parks Law for Liberia in West Afri- the Yale Forestry School, as well as most of mental law grew rapidly. At the same time, ca, and then got to go to the Caribbean to the first deans of the state forestry schools.

24 THE VERMONT BAR JOURNAL • SPRING 2018 www.vtbar.org What’s New do the same, including forestry. TC: Not to mention impervious surface had a lot of business-related work, assisting issues. real estate lawyers and corporate lawyers TC: You developed quite the niche! TM: True! Lots of impervious surfac- on transactions involving a contaminated TM: Much to my own surprise. As I ad- es, including a vast network of freeways. property, sales of companies with asbes- vise students, if you look forward into your I went to work for a boutique law firm of tos liabilities, allocations of responsibilities career, it’s like pushing a rope. But when 7 lawyers that did a lot of work in the en- for clean-up . That was the subject matter you look backward, you see the thread. vironmental area. We grew to 55 lawyers that brought me to Vermont Law School. I over the 11 years that I was there and I taught a two-week environmental business TC: That’s a great way to look at it! An- became a partner during that time. I then transactions class during Summer Session. other thing I was curious about was how moved laterally to Gibson, Dunn & Crutch- you ended up in LA. er, one of the oldest firms in LA, which now TC: Now that was through a college TM: I met a very pretty girl between my has over 1,250 lawyers in 22 offices world- friend? 2nd and 3rd year of law school. She’s from wide. TM: Yes, John Echeverria, now a pro- San Francisco. fessor at VLS, was in my class in forestry TC: Did you work exclusively in environ- school. He went on to Yale Law School and TC: That’s a good reason. mental law? we worked on several pro bono projects TM: After Taiwan, Sacramento, Liberia TM: Yes. My practice included almost together. He convinced me to come up in and the Caribbean, we were trying to de- everything but hard core litigation in the the summertime to teach – and that was an cide where we wanted to live and start our environmental arena. I did a lot of com- easy sell! Two years ago, he and I taught a careers. What appealed about Los Ange- pliance work on new laws and regulations, course together on comparative land use les was the variety of environmental issues and a certain amount of enforcement work law in California, Vermont and France, af- -- air quality issues, because of the basin, when clients got sued. I’m not expert on fectionately referred to as “le boondog- water quantity and water quality, hazard- the criminal side, but I would work with gle!” I taught the California portion, he ous waste management, coastal issues, white collar lawyers in our firm in environ- taught the Vermont portion, and then we mountain issues, and desert resource is- mental cases. Both firms were generous took ten students over to France for 10 sues. about allowing me to do a lot of pro bono days, which was fantastique. work for non-profits and land trusts. I also

www.vtbar.org THE VERMONT BAR JOURNAL • SPRING 2018 2 5 TC: Those were ten lucky students! TC: You could say that’s true every- TC: Was the prospect of teaching part of TM: Yes! Despite the “boondoggle” where. the appeal when you considered the posi- term, they learned a lot. I learned a lot. It TM: Including the United States. I went tion of Dean and President?

What’s New What’s was a great class and really fun. I hope we to the World Parks Congress a year ago, TM: Absolutely. I had been in private can repeat it. which is the gathering of the IUCN (Inter- practice for 30 years, and I could have kept national Union for Conservation of Nature) practicing for several more, but I had lots of TC: How did working in all of those dif- that meets every four years, like the Olym- energy and I wanted to do something dif- ferent cultures, in so many different parts pics. It was interesting to see that the IUCN ferent, valuable and important. I also want- of the world, affect your views about envi- Legal Commission was focusing its atten- ed a job that would be challenging. As my ronmental law? tion on reducing corruption and establish- friends advised: “Be careful what you wish TM: I started off with the naïve approach ing the rule of law, and stating there could for!” The greatest appeal is being involved that I was going to be enlightening people be no adequate environmental protection with teaching at the premier environmental in another country, and, of course, I ended without these. law school in the United States, if not the up learning much more than I taught. We world. And I love a good challenge. have a very rich environmental law jurispru- TC: To your point! dence in the United States, so one ques- TM: There’s now a broader realization TC: At a time when all law schools are tion was how could that be used to pro- that protecting nature and managing natu- certainly facing challenges. tect resources and manage the environ- ral resources requires respect for the rule TM: I was not aware of just how daunt- ment better in other countries? A lot of of law. ing those challenges are, but they are one the work I did was in developing countries that all law schools are facing, as is high- and I learned more about the political and TC: It looks like during your very busy er education generally. And working on social structures of these countries than I environmental law practice, you also con- those challenges matters, it matters to our learned about the application of environ- sistently taught quite a bit. present and future students and to practice mental law. TM: Yes, I did; I had a traditional private of law. I like to think that every bit of en- law practice, and we represented a broad ergy I put into this effort is benefitting the TC: What was the primary thing you range of clients, from Walmart to the mom students, the school, and the development learned? and pop dry cleaner down the street. I of the environmental law. That is immense- TM: The success, or failure, of environ- loved working with lots of different clients. ly satisfying. mental law in a developing country is much I always encourage law students to consid- more tied to the functioning of political er just how varied and interesting a private TC: It’s interesting that you’ve favored and social systems than it is to any strict law practice can be. As for teaching, I got a practical learning opportunities throughout environmental issues. If you want to have call out of the blue, after I had been practic- your legal career, because I feel like that’s good environmental laws, then it’s critical ing for a couple of years. Claremont McK- one of Vermont Law School’s strengths. It to have the rule of law, which we tend to enna College wanted someone to teach offers so many clinical, intern/extern and take for granted in the United States. We environmental law to undergraduates, be- experiential learning opportunities. Is that have the rule of law, we have an indepen- cause they had a new major that included a big reason why students are applying to dent judiciary, we have a legal system that environmental policy. I agreed to teach a Vermont Law School today? generally makes sense, and we have a po- seminar course for just one semester, and I TM: Yes, they are drawn by our strong litical system that is by and large fair. liked the students so much and I liked the clinical and experiential programs, and by teaching so much that I kept teaching there our strong environmental programs. The TC: There’s a respect for the rule of law for 26 years! other draw is the State of Vermont. Many here. simply want to be at a lovely, rural law TM: Exactly; we also have that in West- TC: How did you fit that in your sched- school with a strong sense of communi- ern Europe, and certain parts of Asia, but ule? ty. We have a really high yield rate, which much of the world is not there yet. You get TM: I taught on Tuesdays from 1:15 to means that students who come visit the very cynical when you’re writing a wildlife 4 p.m. For the last ten years, I co-taught school are very likely to attend. They im- law in a country where, essentially, all that the course with a friend who works for the mediately get a sense of our warm and wel- you’re doing is writing a report that sits on Nature Conservancy in California. The best coming community. a shelf. So one of the things I did when part of the class was a three-day field trip I was a consultant was spend more of my to Death Valley National Park, when we TC: And that’s what you recommend time working on the policy side. Policy is met with the National Park Service and Fish about the School? what government says it’s going to do. If & Wildlife and local conservationists—the TM: Yes. It’s less important which cours- you write a law for a developing country students love it. es you take in law school. What’s impor- and the government adopts it but ignores tant is that you begin to understand the it, nothing happens. But if the govern- TC: Well, I think it’s great that the dean law, you learn to write and think like a law- ment adopts a policy on the management of the law school has such a love for teach- yer. That is what we teach well. All of the of wildlife or national parks or forestry, it’s ing. What do you enjoy most about teach- hands-on learning opportunities we offer harder to ignore. It’s easy to ignore a law, ing? contribute to that. This shows in our VLS but it’s harder to ignore a policy. TM: What I like most about teaching alumni. We have two alums on the Ver- is the process of watching students grap- mont Supreme Court. We have alums in TC: That’s really interesting. ple with tough issues and work their way the AG’s and States Attorney Offices. We TM: So I actually spent more time push- through them, and come to a greater un- have alums in the environmental agencies, ing the policy side, which was a way of get- derstanding of their complexity. I would in the private bar, and in small towns with ting the government to think about policy. love to teach more classes here at Vermont rural practices. Our graduates are every- I did a lot of outreach to government offi- Law School, but at the moment there are where in Vermont. cials, and ultimately, it’s all politics, right? other things I need to be working on.

26 THE VERMONT BAR JOURNAL • SPRING 2018 www.vtbar.org What’s New TC: Did I read that whereas one out of tremendous amount of good that the stu- ten incoming VLS students is from Ver- dents are doing in just those respects. mont, two out of ten VLS graduates stay TM: I think it goes directly to some of in Vermont? the things that Governor Scott and others TM: That’s right, in fact, two out of ten of would like to see— ways to bring very tal- our alumni now live and work in Vermont. ented people into Vermont, which is great. We have a large number who come not We do have a 50th anniversary of our char- necessarily planning on staying, but who ter coming up in 2022, the fall of 2023 will do stay after experiencing all the benefits. be the 50th anniversary of our first entering One of the nice things about the state of class, and the fall of 2026 will be the 50th Vermont, because of its small size and its anniversary of our first graduating class, very strong sense of community statewide, Class of ’76. is that it’s a laboratory for our students to learn about law, not to mention the chance TC: What are some of the plans for to learn about the governmental process. those milestones? And the Vermont Bar Association has been TM: We plan to celebrate the heck out terrific about minimizing the cost to mem- of our 50 years in Vermont! We’re certain- bers, as you only charge the students for ly going to be collecting memories from the cost of food for the events and no ad- some of our early alumni, faculty and staff, ministrative costs. I notice how much our and we’ll publish a commemorative book students enjoy meeting private lawyers. or video. We’ll also host some great cele- brations. In the meantime, we’re also plan- TC: Well, I’m thrilled with the relation- ning a 40th anniversary celebration for the ships that we are building with the law Environmental Law Center this coming school. I think you had been here just a June 22 at the School – I hope many law- week when we did the Trial Academy at yers around the state will join us. VLS. TM: That was great. It gave me the TC: Well, whatever the VBA can do to chance to meet so many private and gov- help in that regard, we are happy to. Like ernmental lawyers right off. Because we are you said, so many of our licensed attorneys the only law school in Vermont, we need to have Vermont Law School roots. work closely with the VBA. It is incumbent TM: My one goal before I step down as upon us to assist the members of the bar in Dean, and maybe I’ll get in trouble if I say all ways possible. Hosting events and mak- it, but I think it would be fun: Two of the five ing the law school here in South Royalton members of the Vermont Supreme Court both a forum and a meeting place for law- are graduates of Vermont Law School; we yers in the state are a couple of the ways want to have a majority on the Supreme VLS can be supportive. We are also now Court before I step down as Dean! the state’s law library, with services open to the public, and receive funding from the TC: That seems like a reachable goal. state to support that. We look forward to TM: We’ll see. continuing to work together to effectively train new attorneys—as well as policy lead- TC: Well, the VBA is delighted to do ers, because of course we have master’s whatever it can to encourage VLS students students, too— for the legal challenges in to stay in Vermont. We’re very proud to call Vermont, and to addressing legal and pol- it our home, and are proud that now you icy issues of statewide significance. Best of do as well. all, we get to work with you and get cook- TM: Thank you, Teri, this has been a real ies! treat.

TC: Glad to oblige! TC: Likewise! TM: I sometimes worry that Vermont Law School is viewed as only an environ- mental law school and not broadly as THE law school in the state of Vermont. I want everybody to understand that is what we are, and I would like to see us be engaged in the full spectrum of legal and policy is- sues that affect Vermonters. If we’re not doing that, then we’re not doing our job.

TC: Well, I know how much good the South Royalton Legal Clinic is doing through its Vermont Immigration Assis- tance Project, Children First Legal Advo- cacy Project, Vermont Veterans Legal As- sistance Project, and other initiatives. It’s a www.vtbar.org THE VERMONT BAR JOURNAL • SPRING 2018 2 7 by Jared K. Carter, Esq. WRITE ON Appellate Practice: Tips for Effectively Defining and Using Standards of Review in Appellate Practice

Every year at about this time, I start pre- 2. Defining Different Standards of Review is that an appellate court does not hear the paring my students for two important evidence or witness the testimony. There- events at Vermont Law School. The first is While there are many variants on stan- fore, as Federal Rule of Civil Procedure 52(a) the Vermont Supreme Court’s annual visit to dards of review that are applied in both explains “due regard shall be given to the the law school during which the Court hears state and federal court, there are three key trial court to judge the credibility of the wit- arguments in pending cases before a large standards that all practitioners should know ness.”5 In short, since an appellate court group of eager law students. The second, and understand: de novo, clear error, and does not review evidence first hand, it is not and the one that tends to give students abuse of discretion. Within each of these in a good position to judge whether a par- more trepidation, is the student’s own class- three broad standards of review different ju- ticular piece of evidence or witness testimo- room practice oral arguments. In talking risdictions may apply slight variants and use ny should be adopted as fact. Since the tri- with my students about these two events, I different terminology to describe these nu- al court sees and hears the evidence in the always start with a similar discussion. That ances. Accordingly, practitioners should re- first person, its decisions on factual findings discussion focuses on appellate process and search the precise standards of review in a must be given significant deference. the importance of effectively using stan- particular court or jurisdiction before mak- Under this standard of review, the likeli- dards of review in their advocacy. I’m not ing a standard of review argument on ap- hood of an appellant successfully convinc- certain how much the standard of review peal. However, it is at least helpful to con- ing an appellate court to reverse a trial court discussions come up in their other cours- sider the “big three” standards and become is very low. As the Vermont Supreme Court es, but in my experience, both practitioners familiar with some basic principles that in- explained “a finding [of fact] will not be dis- and law students often miss out on the op- form and underlie each. turbed merely because it is contradicted portunity to effectively define and use the by substantial evidence….”6 Therefore, ap- proper appellate standard of review in their De Novo pellants should think carefully before argu- writing and advocacy. When parties appeal questions of law, ing on appeal that the lower court erred such as interpreting a statute or a con- in making a finding of fact. Unless the ap- 1. The Purpose of Standards of Review stitution, those appeals are generally re- pellant can show clear error, the appellate viewed under the de novo standard of re- court will not disturb the trial court’s find- Before we can delve into the most com- view.2 When an appellate court reviews an ing and the appellant will lose on that issue. mon standards of review and how to use issue under the de novo standard of review them effectively, it’s worth developing a it means that it gives no deference to the Abuse of Discretion working definition of, and purpose for, the lower court’s decision. Typically, evidentiary issues such as a trial standard of review concept. At its core, the The logic to applying this standard of re- court’s decision to admit a particular piece standard of review determines how much view is twofold. First, an appellate court of evidence is reviewed under the abuse of deference an appeals court should give to a can rule just as readily as a lower court on discretion standard.7 While the abuse of trial court in reviewing the trial court’s deci- a question of law because there is no need discretion standard is quite deferential, as sion on a given issue. for the direct examination of evidence. Sec- the Vermont Supreme Court explained, it To my mind, there are two fundamental ond, the de novo standard is most useful for “does not mean, however, that [the court] purposes that underlie the standard of re- questions of law because it is the appellate will not engage in a substantial and thor- view concept. First, having various stan- court that must settle such issues for the ough analysis of the trial court’s decision dards of review promotes judicial efficiency sake of uniformity across an entire jurisdic- and order to ensure that the trial judge’s because the standard ultimately drives the tion. decision was [correct].”8 Because trial court likelihood of success on appeal. The more From an appellant’s perspective, the de judges must make discretionary decisions deferential the standard of review, the less novo standard of review is preferable be- on a regular basis, there would be signifi- likely an appellant is to prevail and there- cause it allows the appellate court to review cant impacts on judicial efficiency if appel- fore, the less likely they are to appeal at all. the lower court’s decision without giving late courts reviewed those discretionary de- The standard of review acts as a sort of gate- deference to the lower court’s legal conclu- cisions under a de novo standard. keeper, informing potential appellants as to sions. Thus, the possibility of reversal is ar- While each jurisdiction sets forth what tri- the prudence of appealing a given issue. guably more likely under the de novo stan- al court decisions are “discretionary” a good Second, the standard of review provides a dard of review. general rule of thumb is that evidentiary is- lens through which the parties on appeal sues and those decisions that are commit- can focus and frame their arguments. The Clearly Erroneous ted to the discretion of the trial court by flip side of this is that the standard ofre- When it comes to a trial court’s findings of statute typically fall into the category of dis- view also helps direct the appellate court to fact, the standard of review is known as the cretionary. Accordingly, an appeal based on the parties’ most relevant facts and legal ar- clearly erroneous or clear error standard.3 an argument that such a trial court decision guments. As the Vermont Supreme Court Under this highly deferential standard of re- was in error, would be subject to the less pointed out, one of the main purposes of view, the appellate court will only overturn a deferential abuse of discretion standard. determining the proper standard of review lower court’s finding of fact if the appellant is to “unify precedent” across a jurisdiction. can show that there is no credible evidence 3. Using Standards of Review Effectively 1 This uniformity assists litigants and the to support a factual finding.4 By giving short shrift to the standard of re- lower courts in assessing a party’s claims. The rationale for applying such a defer- view component of an appellate brief, many ential standard of review to findings of fact attorneys miss the opportunity to be a more

28 THE VERMONT BAR JOURNAL • SPRING 2018 www.vtbar.org Write On effective advocate. There are at least three Obviously, each party should argue for a important junctures in the appellate process standard of review that is most beneficial to where successful litigators can make effec- their side. If you are the appellant and you tive use of the standard of review. First, suc- can argue for de novo review rather that cessful appellate litigators use the standard clear error, you should do that. If you are of review in deciding whether and what to the appellee the opposite is true – obviously appeal. Second, appellate attorneys use you’d want the most deferential standard of the standard of review in briefing the case. review because you were successful below. And, third, appellate attorneys should use Because the standard of review can have the standard of review during oral argu- such a major impact on how an appellate ment. In summary, not only does determin- court reviews an appeal, attorneys should ing the appropriate standard of review help not short shrift the issue or assume that it is an attorney decide which issues to appeal unimportant in the briefing process. Deter- but it can also be the difference between a mine the proper or best standard of review successful appeal and failure. for your side and argue the issue as needed.

The Role of Standards of Review in Decid- The Role of Standards of Review in Oral ing Whether and What to Appeal Argument As practitioners, when we are not success- After law school I clerked for several ap- ful in the trial court we often believe that the pellate judges who almost always asked a court made numerous mistakes. After hav- question or two at the beginning of an oral ing worked a case for a long period of time, argument about the proper standard of re- it is only natural to feel as though our po- view. Not all appellate judges do this but sition or our client is right. Indeed, that is it is common enough that appellate practi- what vigorously representing a client in an tioners should be prepared to state the ap- adversarial legal system often requires. To propriate standard of review at oral argu- that extent, we may consider attempting to ment. Even if no member of an appellate appeal every perceived error without con- court asks directly about the standard of re- sidering how the standard of review will im- view, it can be a good practice to set forth pact our likelihood of success. Recogniz- the standard of review early in an oral argu- ing that findings of fact are reversed only ment. It helps frame the issues and focuses for clear error or that evidentiary decisions the court. Accordingly, the standard of re- are reversed only for abuse of discretion is view should generally be part of your oral a critical step in helping to focus an appeal. argument outline. Because we have limited time and space in Ultimately, as practitioners our job is to which to draft an appellate brief, it makes persuade a judge or jury that our arguments sense to prioritize arguments that are sub- are legally sound. At the trial court level, ject to de novo review. In short, knowing the that means writing and presenting our ar- standard of review helps us decide whether guments as clearly and persuasively as pos- and what to appeal. sible. On appeal, the same applies but we have the added opportunity to use stan- The Role of Standards of Review in Brief- dards of review to increase our likelihood of ing an Appeal success before an appellate court. Whether Once you’ve decided to appeal, it be- we represent the appellant or appellee, de- comes important to appropriately brief the termining and, if necessary, effectively argu- standard of review issue. To be sure, not ev- ing a beneficial standard of review, is a vital ery appellate case turns on the standard of part of good appellate advocacy. review. However, in writing every appellate brief, attorneys should clearly, and as suc- Jared Carter is an Assistant Professor of cinctly as possible, set forth the relevant Law at Vermont Law School. Jared teaches standard of review at the beginning of the legal activism, legal writing and appellate brief. In many cases, there might be several advocacy at VLS. He also directs the Ver- different standards of review. If the appel- mont Community Law Center, a non-profit lant choses to appeal both a question of law legal services organization focused on so- and a question of fact, then the appellant cial justice, constitutional rights and con- should set forth both standards of review in sumer protection. their written brief. ______If the standard of review is not in dis- 1 State v. Weisler, 190 Vt. 344, 356 (2011). pute (and often it is not) then the appellant 2 State v. Eldredge, 180 Vt. 278, 280 (2006). should succinctly set forth the standard of 3 Mullin v. Phelps, 162 Vt. 250, 260 (1994). review with appropriate citation to support 4 Highgate Assocs. v. Merryfield, 157 Vt. 313, that standard of review at the beginning of 315 (1991). the brief. If, on the other hand, the stan- 5 Fed. R. Civ. P. 52(a). dard of review is in dispute, then both par- 6 Mullin, 162 Vt. at 261. ties to an appeal should brief the issue just 7 USGen New England, Inc. v. Town of Rocking- as they would any other legal issue. This ham, 177 Vt. 193, 202 (2004). means writing about the appropriate stan- 8 958 Associates, Ltd. v. Daewoo Electronics dard of review in the argument or discussion America, 183 Vt. 208, 214 (2008). section of a brief. www.vtbar.org THE VERMONT BAR JOURNAL • SPRING 2018 2 9 by Hope Pordy, Esq. Going Behind the Headlines: Spotlight on Sexual Harassment Law

Introduction sex discrimination (34.8% of all state charg- rassment under VEPA, a plaintiff must first es).7 Of those filed, 6 alleged sexual harass- “prove that the harassment was sufficient- Explosive news reports of the serial sexu- ment (five by females and one by a male). ly severe or pervasive to alter the condi- al misconduct of movie mogul Harvey Wein- tions of the victim’s employment and create stein and men of a similar ilk – powerful, Primer on Sexual Harassment Law: an abusive working environment” and then dominating, career-making – have dominat- “show that a specific basis exists for imput- ed the headlines since October 2017, mak- Sexual harassment has been recognized ing the conduct that created the hostile en- ing sexual harassment a compelling topic of as a form of discrimination prohibited by Ti- vironment to the employer.”14 “[A]n employ- discussion on social media, in the workplace, tle VII since 1986, when the United States er will be liable if the plaintiff demonstrates at school, around the dinner table, and in its Supreme Court recognized such a claim in that the employer either provided no rea- most glamorous form, at award shows. In its landmark ruling Meritor Savings Bank, sonable avenue for complaint or knew of these different forums, the term “sexual ha- FSB v. Vinson.8 “Harassment” per se is not the harassment but did nothing about it.”15 rassment” encompasses a wide range of be- explicitly prohibited by the statute; never- An actionable claim of hostile work en- haviors, and what people perceive and ex- theless, the Supreme Court has interpreted vironment harassment has both subjective perience as sexual harassment might not ac- the statute as a whole to prohibit harass- and objective components: the environ- tually fit the legal definition that has evolved ment. The Supreme Court has found that ment must be one that a reasonable person since the enactment of Title VII of the Civil that “[t]he phrase ‘terms, conditions or priv- in the plaintiff’s position would find hostile Rights Act of 1964 (“Title VII”)1. ileges of employment’ evinces a congressio- or abusive, and one that the victim in fact Title VII prohibits discrimination with re- nal intent to strike at the entire spectrum of did perceive to be so.16 “The objective hos- spect to terms and conditions of employ- disparate treatment of men and women in tility of a work environment depends on the ment “because of such individual’s race, employment, which includes requiring peo- totality of the circumstances, viewed from color, religion, sex, or national origin.”2 Al- ple to work in a discriminatorily hostile or the perspective of a reasonable person in though the media often focus on sexual ha- abusive environment.”9 the plaintiff’s position, considering all the rassment litigation, the establishment of a Courts and practitioners often character- circumstances [including] the social context theory of harassment as a form of prohib- ize sexual harassment discrimination claims in which particular behavior occurs and is ited discrimination was the result of a case as either “quid pro quo” or “hostile work experienced by its target.”17 involving offensive conduct based on na- environment” but a plaintiff can plead a To determine whether an environment is tional origin.3 In fact, Title VII’s coverage of claim of sexual harassment without neces- sufficiently hostile or abusive, courts con- discrimination based on sex was a last min- sarily using those specific terms.10 “Quid pro sider the totality of the circumstances, in- ute addition to the legislation by a Southern quo sexual harassment refers to situations cluding the “frequency of the discriminatory Congressman, who opposed civil rights and in which ‘submission to or rejection of [un- conduct; its severity; whether it is physical- believed that the addition of protection for welcome sexual] conduct by an individual is ly threatening or humiliating, or a mere of- women in employment would kill the bill.4 used as the basis for employment decisions fensive utterance; and whether it unreason- Of all the charges received by the EEOC affecting such individual.... It is enough to ably interferes with an employee’s work per- in Fiscal Year 2017, 30.4% involved claims show that the supervisor used the employ- formance.”18 An oft-cited passage from the of sexual discrimination, whereas 48.8% in- ee’s acceptance or rejection of such advanc- Supreme Court decision in Oncale v. Sun- volved claims of retaliation and 33.9% were es as the basis for a decision affecting the downer Offshore Servs., Inc.,19 is illustrative due to race-based discrimination. In 2017, compensation, terms, conditions or privileg- of the fine line courts frequently walk to sep- the EEOC received 6,696 sexual harass- es of the employee’s job.’”11 Simply stated, arate Title VII from a “general civility code:” ment charges (16.5% by males) and recov- “quid pro quo” harassment is when a super- ered $46.3 million in monetary benefits for visor offers “this for that” – i.e., a job or pro- [Title VII] does not reach genuine but victims of sexual harassment.5 motion for sex or a denial of such job oppor- innocuous differences in the ways men Discrimination because of sex in employ- tunities for failing to acquiesce. and women routinely interact with ment is similarly prohibited under Vermont The Supreme Court defined a «hostile members of the same sex and the op- state law pursuant to the Fair Employment work environment» actionable under Ti- posite sex. The prohibition of harass- Practices Act (“VEPA”), 21 V.S.A. § 495. The tle VII as one in which the «workplace… [is] ment on the basis of sex requires nei- Vermont Attorney General’s Office is the permeated with discriminatory intimidation, ther asexuality nor androgyny in the designated fair employment practice agen- ridicule, and insult that is ‹sufficiently severe workplace; it forbids only behavior so cy for resolving discrimination complaints. or pervasive to alter the conditions of the objectively offensive as to alter the There is a work-sharing agreement between victim›s employment and create an abusive “conditions” of the victim’s employ- the EEOC and the Vermont Attorney Gener- working environment. . . .›»12 As for cases ment …. We [the Supreme Court] have al’s Office that allows for a complaint of dis- involving sexual harassment, “[t]o be action- always regarded that requirement as crimination filed with either agency to effec- able, the conduct at issue need not contain crucial, and as sufficient to ensure that tively result in a filing with the other agen- any sexual component or any reference to courts and juries do not mistake ordi- cy.6 Based on EEOC statistics, there were the victim’s sex; on the other hand, it must nary socializing in the workplace – such 46 charges alleging discrimination filed with be ‘reasonably interpreted as having been as male-on-male horseplay or intersex- the EEOC and the Vermont Attorney Gen- taken on the basis of plaintiff’s sex.’”13 ual flirtation – for discriminatory “condi- eral’s Office, 16 of which involved claims of Similarly, to establish a claim of sexual ha- tions of employment.”20

30 THE VERMONT BAR JOURNAL • SPRING 2018 www.vtbar.org Going Behind the Headlines Defining “Sex” sexes discriminates against an employ- duct trainings with a preventative focus such ee on the basis of sex.25 as bystander intervention training, training Despite the legislative history surround- tailored to the employer’s actual workforce ing the introduction of “sex” to Title VII, As a result of the Zarda decision, individ- and workplace culture,31 and workplace ci- and its specific (albeit sardonic) reference uals employed within that Court’s jurisdic- vility training.32 to women, the statute protects both men tion will now have available to them a claim and women, and prohibits discrimination by of sexual orientation discrimination under members of the same sex. “Title VII’s pro- Title VII as well as state law claims, includ- When is Enough Enough? hibition on discrimination ‘because of…sex’ ing claims of a hostile work environment. The Severe or Pervasive Standard. protects men as well as women” and situ- This decision eliminates a significant bar- ations where the “plaintiff and the defen- rier for individuals advancing harassment Courts today still struggle with just how dant…are of the same sex.”21 claims based on their sexual orientation be- much the offending behavior must “perme- Less well-settled is the notion that Title VII cause when pursuing gender-based discrim- ate” the workplace to be “sufficiently se- prohibits discrimination based on sexual ori- ination claims evidence of conduct directed vere or pervasive.” There is no one-size-fits- entation. The Second Circuit recently found at an individual due to their sexual orienta- all test for harassment claims. As one fed- that “sex” encompasses sexual orientation tion -- for example, epithets such as “fag,” eral judge noted: “[D]etermining the inten- in Zarda v. Altitude Express, Inc., decided “queer,” “butch” -- rather than their biolog- sity/quantity of sexual gesturing, touching, on February 26, 2018. In Zarda, the court ical sex, is now relevant evidence of discrim- bantering and innuendo that it takes to ren- overruled precedent in its circuit and held ination.26 der a work environment sexually hostile is that “Title VII prohibits discrimination on the now no less difficult than ‘trying to nail a jel- basis of sexual orientation as discrimination The Affirmative Defense lyfish to the wall.’”33 ‘because of…sex’.”22 All states within the Cases finding sufficient “severity” to con- Second Circuit already have anti-discrimina- An employer’s liability hinges on the sta- stitute unlawful harassment often involve tion laws expressly including sexual orienta- tus of the harasser. If the harasser is an ex- physical contact. “Even a single incident of tion and/or gender identity/expression as a ecutive or other employee of sufficiently sexual assault sufficiently alters the condi- protected category.23 high rank that his or her actions “speak” for tions of the victim’s employment and clear- The plaintiff in Zarda was a skydiving in- the employer (e.g., a sole proprietor, own- ly creates an abusive work environment for structor who had informed a client that he er, partner, corporate officer, or high-level purposes of Title VII liability.”34 The Second was gay in order to assuage any concerns supervisor), then an employer will be held Circuit has offered guidance on distinguish- she or her boyfriend might have regard- strictly liable for the harasser’s actions.27 If ing between physical contact that rises to ing the close physical proximity required the harasser is a supervisor, and there is a the level of actionable harassment from oth- between Zarda and the girlfriend by be- tangible job action taken against the ha- er forms of physical contact between co- ing strapped together for a tandem sky- rassed employee (i.e., termination, demo- workers and, unsurprisingly, a crucial com- dive. The boyfriend then advised Zarda’s tion, suspension), such as in cases involving ponent is consent. boss, who terminated Zarda. Zarda filed a quid pro quo harassment, the employer will discrimination charge with the EEOC, and be vicariously liable.28 Absent a tangible job Casual contact that might be expected subsequently a federal lawsuit, alleging that action, typically with hostile work environ- among friends - a hand on the shoul- he was discriminated against because of his ment claims, the employer has available to der, a brief hug, or a peck on the cheek sexual orientation and because of his gen- it a two-part affirmative defense: (i) the em- - would normally be unlikely to create a der. ployer took reasonable steps both to pre- hostile environment in the absence of At the time Zarda filed his complaint, only vent the harassment and to remedy the ha- aggravating circumstances such as con- the EEOC and one circuit court had found rassing conduct; and (ii) the harassed em- tinued contact after an objection. And that discrimination due to sexual orientation ployee unreasonably failed to avail himself even more intimate or more crude phys- was discrimination “because of sex” under or herself of any corrective or preventive ical acts - a hand on the thigh, a kiss on Title VII.24 The Second Circuit found in favor opportunities offered by the employer.29 the lips, a pinch of the buttocks - may of Zarda on the theories of sex-based dis- Based on two Supreme Court cases decided be considered insufficiently abusive to crimination, gender stereotyping and asso- in 1998, this affirmative defense is referred be described as severe when they oc- ciational discrimination: to as the “Faragher/Ellerth Defense.”30 cur in isolation. But when the physical As a result of these two Supreme Court contact surpasses what (if it were con- [S]exual orientation discrimination is a cases, many employers drafted sexual ha- sensual) might be expected between subset of sex discrimination because rassment policies and set forth complaint friendly coworkers it becomes increas- sexual orientation is defined by one’s procedures in an effort to evade liability ingly difficult to write the conduct off sex in relation to the sex of those to even if harassment occurred. Such employ- as a pedestrian annoyance. Direct con- whom one is attracted, making it im- er actions have not been a fail-safe to avoid tact with an intimate body part consti- possible for an employer to discrimi- sexual harassment claims and in the current tutes one of the most severe forms of nate on the basis of sexual orientation climate, it is incumbent upon employers to sexual harassment.35 without taking sex into account. Sexual review these policies and ensure that their orientation discrimination is also based policies and procedures create a meaning- “‘[R]epeated touching of intimate parts of on assumptions or stereotypes about ful and accessible process for receiving and an unconsenting employee’s body is by its how members of a particular gender responding to complaints, and for taking very nature severely intrusive’ and not con- should be, including to whom they corrective action, if warranted. Indeed, the sidered ‘normal’ in the workplace…Though should be attracted. Finally, sexual ori- EEOC and a designated Select Task Force reasonable people expect to “have their au- entation discrimination is association- on the Study of Harassment in the Work- tonomy circumscribed in a number of ways’ al discrimination because an adverse place, recently issued a comprehensive re- in a workplace, ‘giving up control over who employment action that is motivated port on sexual harassment. The report in- can touch their bodies is usually not one of by the employer’s opposition to asso- cludes several key recommendations for them’.»36 ciation between members of particular employers to implement policies and con- As for “pervasiveness,” depending upon www.vtbar.org THE VERMONT BAR JOURNAL • SPRING 2018 3 1 the nature of conduct, in particular the com- the desire to keep a settlement confiden- The Attorney Generals were clear in their ment or epithet that engenders the claim, tial. Contrary to assumptions, NDAs do not goal: “Ending mandatory arbitration of sex- courts have found that even very few utter- necessarily benefit solely the employers at ual harassment claims would help to put a ances may be sufficient to state a claim.37 the plaintiffs’ expense. Victims of harass- stop to the culture of silence that protects For example, the Second Circuit found that ment often prefer confidentiality clauses in perpetrators at the cost of their victims.” a supervisor’s comments were sufficient- order to minimize damage to their reputa- ly beyond the line drawn by the Supreme tion if their claims become public. The vic- Non-Waivable Right to File a Court in Harris where a male supervisor said tim may be concerned about how he or she Claim with the EEOC

Going Behind the Headlines to a female employee, repeatedly over sev- may be perceived by potential employers or eral weeks, that her husband was “not tak- the community-at-large if the fact of his or Notwithstanding an NDA, mandatory ar- ing care of [her] in bed.” The Court opined her complaint becomes known. Or, the vic- bitration provision or a release and waiv- that a trier of fact could reasonably interpret tim may prefer not to have the conduct to er of claims, the EEOC has long held that that statement to be a solicitation for sexual which he or she was subjected publicized, even though an individual may enter into a relations, especially when coupled with the especially in cases of sexual assault, coerced settlement agreement, he or she still has a supervisor’s claim of his own sexual prow- sexual activity and/or any other behavior non-waivable right to file a complaint with ess, and when considered in light of sexu- that caused the victim to be demeaned, the EEOC and cooperate with any EEOC in- al advances made by the male supervisor denigrated or harassed. Although we are vestigation. The EEOC has interpreted Title to the plaintiff and another employee, and now bombarded with stories of high-pro- VII’s language prohibiting an employer from therefore, the plaintiff proffered sufficient file harassers, i.e., individuals who have pro- “interfer[ing] with the protected right of an evidence of a sexually hostile work environ- tected their image and livelihood through employee to file a charge, testify, assist, or ment.38 NDAs, and victims who are able to garner participate in any manner in an investiga- media attention for openly discussing their tion, hearing, or proceeding” as guarantee- The Impact of Harvey Weinstein: victimization, there are vast numbers of vic- ing an employee the right to pursue a claim Challenging the Secrecy of Sexual tims and harassers for whom publicity would with the EEOC.42 In its Enforcement Guid- Harassment Settlements be equally unwelcome. ance, the EEOC advises that “[a]greements Further, employers may resist settling cer- that attempt to bar individuals from filing a Non-Disclosure Agreements tain claims if they are not able to obtain an charge or assisting in a Commission investi- NDA because a major benefit of settlement gation…have a chilling effect on the willing- Historically, a standard part of nearly every to the employer is a contractual right to ness and ability of individuals to come for- settlement agreement resolving claims of the victim’s silence. Absent non-disclosure, ward with information that may be of criti- sexual discrimination, and most other forms the employer may seek alternatives to ad- cal import to the [EEOC] as it seeks to ad- of discrimination, is a confidentiality clause dressing the situation. Moreover, if employ- vance the public interest in the elimination or non-disclosure agreement (“NDA”). In ers become more aggressive about investi- of unlawful employment discrimination.”43 the wake of revelations about the decades gating claims of misconduct and taking cor- This continues to be a strategic enforce- of sexual abuse by the legendary – and now rective action, litigation risk would be min- ment priority for the Agency.44 However, no infamous – Harvey Weinstein, and the fact imized, creating an additional hurdle for court has thus far adopted the position of that his behavior had been challenged in victims seeking damages for the economic the EEOC. Some Vermont legislators have the past but kept hidden through NDAs and non-economic injuries as a result of the been seeking to codify EEOC’s position and (and extremely onerous ones at that), the harassment. Although it is unlikely that em- extend it to the filing of a complaint of sex- inclusion of such provisions is under tremen- ployers will seek to publicly capitalize on the ual harassment with the Attorney General, dous scrutiny. Legislators in states such as fact that they were employing harassers, the a State’s Attorney, the Human Rights Com- Vermont, New York, Pennsylvania and Cali- fact that they quickly acted to redress the mission, or any other State or federal agen- fornia39 have reacted swiftly to try to put an situation, particularly, if the harasser is ter- cy.45 end to these clauses, or at least restrict their minated, may be viewed positively if it be- Despite the existence of this right recog- use in cases involving sexual assault. Con- comes public or at a minimum, not risk sig- nized by the EEOC, and based strictly on gress has also taken up the issue of NDAs nificantly tarnishing the employer’s image. anecdotal information, it seems that victims with the introduction of the “Ending Se- who settle their claims privately with their crecy About Workplace Sexual Harassment Arbitration Agreements employer rarely choose to subsequently file Act,” which would require companies to an- a claim with the EEOC. nually report all court settlements involving Employment agreements that include sexual harassment, assault and discrimina- clauses mandating arbitration for claims of Conclusion tion to the EEOC.40 sexual harassment are also under scruti- Currently under review by the Vermont ny. Although the trend of favoring arbitra- For over a half-century, federal law has legislature is a bill, H.707, which propos- tion agreements has remained steadfast in prohibited discrimination because of sex, es several amendments to VEPA § 495h many areas of the law (for example, arbitra- yet employees experience discrimination in to address the use of NDAs in connection tion agreements that contain a waiver of an the workplace day-in and day-out. Discrimi- with sexual harassment claims. In particu- employee’s right to pursue a class or col- nation in the form of sexual harassment and lar, the bill includes a prohibition on the use lective action), the same wave of criticism a hostile work environment has been action- of NDAs as part of any employment agree- about the secrecy of NDAs has also target- able for over thirty years. Sexual harass- ment as a condition of employment, such ed the non-public adjudication of sexual ha- ment has been at the forefront of the news that an employee or prospective employee rassment claims through private arbitration. before, perhaps most dramatically during could not be “prohibit[ed], prevent[ed], or The Vermont Attorney General, T.J. Dono- the Clarence Thomas hearings when Anita otherwise restrict[ed]…from opposing, dis- van, recently joined Attorney Generals from Hill graphically testified (to no avail) about closing, reporting or participating in an in- all 50 states, Washington, D.C. and five U.S. the harassment she suffered while his sub- vestigation of sexual harassment.”41 territories in penning a letter to Congress ordinate at the EEOC. It is too soon to tell Until any such legislation is passed, em- calling on the leadership to enact legislation whether the public dialogue taking place ployers and employees will grapple with ending the use of such arbitration clauses. around sexual harassment will cause judg-

32 THE VERMONT BAR JOURNAL • SPRING 2018 www.vtbar.org Going Behind the Headlines es and juries to use a different lens in eval- v. Vinson, 477 U.S. 57 (1986)). 29 Faragher v. City of Boca Raton, 524 U.S. 775, 10 uating whether the complained of conduct “The terms quid pro quo and hostile work en- 807 (1998). vironment are helpful, perhaps, in making a rough 30 Id. is sufficiently “severe” or “pervasive” to im- demarcation between cases in which threats are 31 For example, in my work in the entertainment pose liability. In the meantime, the #metoo carried out and those were they are not or are field, I conduct training to address industry-spe- movement, the very public takedown of su- absent altogether, but beyond this are of limit- cific issues such as nudity on set, sex scenes, guid- perstar harassers, the emphasis on renewed ed utility.” Schiano v. Quality Payroll Sys., Inc, 445 ed physical movements by directors, choreogra- Burlington training and education focused on bystand- F.3d 597, 603 (2d Cir. 2006) quoting phers, etc. Another example is where an employ- Indus., Inc. v. Ellerth, 524 U.S. 742, 751 (1998); er may frequently hold off-site events and rules of er interruptions to stop sexual harassment See also Jones v. Needham, 856 F.3d 1284, 1291 conduct should be in place and disseminated for in its tracks, and the undoing of how victims (10th Cir. 2017)(sufficient to “describe generally” situations outside the traditional work setting. have been silenced, may be the enduring alleged sexual discrimination without specifying 32 https://www.eeoc.gov/eeoc/task_force/ha- legacy of the Weinstein revelations more claim is one of quid pro quo or hostile work envi- rassment/report_summary.cfm ronment). 33 Breda v. Wolf Camera, Inc., 148 F.Supp.2d than any material change in Title VII juris- 11 Perks v. Town of Huntington, 251 F. Supp. 2d 1371, 1377 (S.D.Ga 2001) (quoting Rosanova v. prudence. 1143, 1154-55 (E.D.N.Y. 2003) quoting Karibian Playboy Enterprises, Inc., 411 F.Supp. 440, 443 ______v. Columbia Univ., 14 F.3d 773, 777-78 (2d Cir. (S.D.Ga. 1976), aff’d, 580 F.2d 859 (5th Cir. 1978)). Hope Pordy Esq., is a Labor/Employment 1994)); Jin v. Metropolitan Life Ins. Co., 310 F.3d 34 Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d attorney representing employees in dis- 84, 91 (2d Cir. 2002) (“requiring an employee to Cir. 1995). engage in unwanted sex acts is one of the most 35 Redd v. New York Div. of Parole, 678 F.3d 166, crimination cases, wage and hour violations pernicious and oppressive forms of sexual harass- 177 (2d Cir. 2012) (emphasis added) (internal (e.g., non-payment of overtime), employ- ment that can occur in the workplace). quotations and emphases omitted). ment/severance agreements and unions in 12 Harris, 510 U.S. at 21; Cruz v. Coach Stores, 36 Delsasso v. 1249 Wine Bar, 2017 U.S. Dist. LEX- various industries, particularly creative art- Inc., 202 F.3d 560, 570 (2d Cir. 2000). IS 50050, at *8-9 (D.Conn. 2017) (quoting Redd v. 13 Scott v. City of New York Dep’t of Corr., New York Div. of Parole ists in the entertainment industry, as well as 641 , 678 F.3d 166, 177 (2d Cir. F.Supp.2d 211, 224 (S.D.N.Y. 2009) (quoting 2012)). workers in the public sector Gregory v. Daly, 243 F.3d 687, 695 (2d Cir. 2001)); 37 See Mathirampuzha v. Potter, 548 F.3d 70, ______see, e.g., Howley v. Town of Stratford, 217 F.3d 79 (2d Cir. 2008) (“extraordinarily severe” sin- 1 Title VII of the Civil Rights Act of 1964 (Pub. L. 141, 153-54 (2d Cir. 2000)(conduct that was not gle event, or a series of incidents that were “suf- 88-352), as amended, 42 U.S.C. § 2000e et seq. overtly sex-based constituted part of hostile work ficiently continuous and concerted” to alter the 2 42 U.S.C. § 2000e-2(a)(1). environment where plaintiff was the only woman conditions of a plaintiff’s working environment); 3 Rogers v. EEOC, 454 F.2d 234, 237-38 (5th Cir. among 100 firefighters and other harassing con- Cf. Petrosino v. Bell Atl., 385 F.3d 210, 223 (2d Cir. 1971) (holding that plaintiff’s allegations that she duct was explicitly sexual in nature). 2004) was abused by white co-workers and limited in 14 Connolly v. Alderman, 2017 U.S. Dist. LEX- 38 Desardouin, 708 F.3d at 105-06. her job duties by bias against her stated a claim IS 198359, at * 5-6 (D.Vt. Dec. 1, 2017) (quoting 39 PA State Senate, SB999 (prohibits non-disclo- because “the relationship between an employee Perry v. Ethan Allen Inc. 115 F.3d 143, 149 (2d Cir. sure agreements within contracts or secret out- and his working environment is of such signifi- 1997)). of-court settlements related to sexual harassment cance as to be entitled to statutory protection”). 15 Id. or sexual misconduct); NJ State Senate, No. 121 4 Congressman Howard W. Smith (Virginia) pro- 16 Redd v. N.Y. State Div. of Parole, 678 F.3d 166 (bars agreements that conceal details relating to posed the amendment to add “sex” as one of the (2d Cir. 2012) discrimination claims); NY State Senate, No. (pro- protected categories to delay committee con- 17 Id. (quoting Petrosino v. Bell Atlantic, 385 F.3d hibits any provision in any contract or agreement sideration of the bill in the hopes that racial pro- 221) (internal quotations omitted). which has the purpose or effect of concealing the tests occurring around the country would trigger 18 Desardouin v. City of Rochester, 708 F.3d 102, details relating to a claim of discrimination or ha- a backlash against an antidiscrimination bill per- 105 (2d Cir. 2013) (quoting Harris, 510 U.S. at 23) rassment); CA Code, Code of Civil Procedure, ceived to be favoring African-Americans. The dis- (internal quotation marks omitted). CCP § 1002 (prohibits non-disclosure provisions ingenuousness of his amendment is demonstrat- 19 523 U.S. 75, 80 (1993). in cases involving a felony sex offense, childhood ed by some of his supporting remarks: 20 Id. at 81. sexual abuse, sexual exploitation of a minor, and The census of 1960 shows that we had 21 Oncale v. Sundowner Offshore Servs., Inc., 523 sexual assault). 88,331,000 males living in this country, and U.S. 75, 78-79 (1998). 40 H.R. 4729 (115th Congr.), Introduced by Rep. 90,992,000 females, which leaves the coun- 22 2018 U.S. App. LEXIS 4608, at *10 (2d Cir. Feb. Carolyn Mahoney on December 21, 2017. try with an “imbalance” of 2,661,000 females. 26, 2018). 41 H.707 was introduced into the Vermont House Just why the Creator would set up such an im- 23 VEPA, 21 V.S.A. § 495(a); New York State Hu- of Representatives on January 25, 2018, and was balance of spinsters, shutting off the “right” of man Rights Law (“NYSHRL”), Exec. Law Art. 15, § referred to the committee on General, Housing every female to have a husband of her own, 295(1)(a); Connecticut Fair Employment Practices and Military Affairs. is, of course, known only to nature. But I am Act (“CFEPA”), Conn. Gen. Stat. Chap. 814c, §§ 42 EEOC, Understanding Waivers of Discrimina- sure you will agree that this is a grave injustice 46a-60, 46a-81a. tion Claims in Severance Agreements, https:// to womankind and something the Congress 24 Baldwin v. Foxx, EEOC Decision No. www.eeoc.gov/policy/docs/qanda_severance- and President Johnson should take immedi- 0120133080, 2015 EEOPUB LEXIS 1905, 2015 WL agreements.html. ate steps to correct, especially in this election 4397641 (July 15, 2015)(holding that sex discrimi- 43 EEOC, Notice No. 915.002, Enforcement year. Would you have any suggestions as to nation includes sexual orientation discrimination); Guidance on Non-Waivable Employee Rights what course our Government might pursue to Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d (April 10, 1997), https://www.eeoc.gov/policy/ protect our spinster friends in their “right” to a 339 (7th Cir. 2017)(en banc); cf. Evans v. Ga. Reg’l docs/waiver.html (“Agreements that attempt to nice husband and family? Hosp., 850 F.3d 1248, 12561257 (11th Cir.), cert. bar individuals from filing a charge of assisting in 110 Cong. Rec. 2577-78 (1964). The amendment denied, 138 S. Ct. 557, 199 L. Ed. 2d 446 (2017) a Commission investigation run afoul of the an- did receive vocal support from a few female law- (collecting circuit court cases holding that sexual ti-retaliation provisions because they impose a makers backed by women’s rights advocates. orientation discrimination is not actionable under penalty upon those who are entitled to engage in 5 EEOC FY 2017 Enforcement and Litigation Title VII). protected activity under one or more of the stat- Data, https://www.eeoc.gov/eeoc/newsroom/re- 25 Zarda, 2018 U.S. App. LEXIS 4608, at *61. utes enforced by the Commission.”). lease/1-25-18.cfm. 26 Boutillier v. Hartford Pub. Schs, 221 F.Supp.3d 44 https://www.eeoc.gov/eeoc/plan/sep-2017. 6 Kubler v. Heritage Auto. Grp., Inc,. Case No. 255, 269 (D.Conn. 2016)(sexual orientation dis- cfm. 5:16-dv-180, 2017 U.S. Dist. LEXIS 187998, at crimination must be excluded from the equation 45 H.707, Sec. 1-(g)(2)(h)(2)(A)-(B). The bill has 56 *25-26 (D.Vt. June 14, 2017). when determining whether allegations or evi- sponsors including Republicans, Democrats, Pro- 7 https://www1.eeoc.gov/eeoc/statistics/en- dence of gender non-conformity discrimination gressives and Independents. forcement/charges_by_state.cfm#centercol. It is are sufficient); Estate of D.B. by Briggs v. Thou- interesting to note the decline in sexual harass- sand Islands Cent. Sch. Dist., 169 F.Supp.3d 320, ment charges over the period of time data was 332-33 (N.D.N.Y. 2016)(homophobic slurs permit- collected between 1997-2017, with 29 being the ted only when directed at a heterosexual). highest number of sexual harassment charges, 27 Townsend v. Benjamin Enterprises, 679 F.3d filed in 1998. 41, 52-55 (2d Cir. 2012). 8 477 U.S. 57 (1986). 28 Burlington Indus. v. Ellerth, 524 U.S. 742, 760- 9 See Harris v. Forklift Systems, Inc., 510 U.S. 17, 61 (1998). 21 (S.Ct. 1993) (citing Meritor Savings Bank, FSB www.vtbar.org THE VERMONT BAR JOURNAL • SPRING 2018 33 by Lila Shapero, Esq. Steps to End Domestic Violence

The Vermont Bar Foundation (VBF) con- effort with Steps to End Domestic Vio- tinues its series highlighting grantees that lence, volunteer lawyers and a paralegal. provide legal services for low-income Ver- The legal clinic is scheduled on Mondays monters. Through IOLTA monies and other for 1.5 hours during the afternoon three contributions, the VBF is able to help fund weeks per month and in the evening one- a range of competitive and noncompetitive week per month. grants throughout Vermont. Jordan staffs the legal clinic by screen- Steps to End Domestic Violence (former- ing requests, scheduling appointments, ly Women Helping Battered Women), is a providing referral information and being recipient of a competitive grant; the grant part of the team approach at the clinic. helps fund a weekly legal clinic for victims She may receive referrals from the hotline and survivors of domestic violence. Steps at Steps to End Domestic Violence or from According to Jordan, clients can come to End Domestic Violence is located in other entities. She screens for the type back over time to deal with their case as Chittenden County. The VBF has provid- of case and whether any referrals for oth- the case wends its way through the court ed grant monies to them for different pro- er services are applicable. Each clinic has system or as an ex-partner brings sequen- grams since 2004. The weekly legal clinic three half-hour slots and she confirms ap- tial court cases. Gordon related a case in has received grant money since 2010. pointments. The clinic is typically booked which the ex-partner brought a new motion I met over coffee with Susan Gordon, two weeks out. Jordan confers with the at- every time the prior motion was granted. Kim Jordan, and Sharon Rotax to discuss torney and paralegal at the clinic prior to Both Jordan and Gordon agree that the workings of the legal clinic. They de- the client’s appointment and they confer when a client returns over time, the attor- scribe the weekly clinic as one that empow- after the appointment, which may include ney/client relationship is fostered and the ers their clients by giving information about providing referrals to the client. client is better able to continue as a pro se the law and court processes so that the cli- Gordon specializes in family law and is within the court system. In addition, if a ents can make their own decisions whether a solo practitioner. She relocated to Ver- client changes their mind, they can return and how to proceed with their cases and mont, opening her practice in 2007. That and receive the information they need to can do so more confidently. Gordon is a same year, she started to volunteer at go forward. They have received feedback private attorney who regularly staffs the le- Women Helping Battered Women. Start- that the clients felt heard and empowered gal clinic. Jordan is the legal advocate at ing in 2010, Gordon has volunteered for by being able to return for information and Steps to End Domestic Violence. Rotax is the legal clinic and has been a mainstay at advice. the grant administrator at Steps to End Do- the clinic. In recognition of Gordon’s work, Given the demographics in Chittenden mestic Violence. she was awarded a Vermont Bar Associa- County, they are seeing more New Amer- Women Helping Battered Women chose tion Pro Bono Award for her work at the icans. They use the language translation the name “Steps to End Domestic Vio- legal clinic. Mary Ashcroft’s profile of Gor- line to better insure the client’s anonymi- lence” to reflect the inclusivity of the dif- don can be found in the Vermont Bar Jour- ty. In one case, they were able to make a ferent groups of people impacted by do- nal, Spring 2017, page 44. referral to an immigration attorney knowl- mestic violence and the different types of Gordon is joined at the legal clinic by Lu- edgeable about immigration relief for domestic violence. As Gordon stated, the cia White, a paralegal at Dunkiel, Saunders, abused spouses to help a New American name change tells the community that the Elliot, Raubvogel & Hand. When Gordon wife whose American husband was threat- doors are open to all who are looking for is not available, Jordan can call on sever- ening her immigration status to continue to relief from domestic violence. al other attorneys to take Gordon’s place control and abuse her. The legal clinic is an outgrowth of the ser- including our two clinic back-up attorneys, The statistics bear out that a majority of vices Steps to End Domestic Violence pro- Laura Bierley and Celeste Laramie. the legal clinic cases are family law. During vides and has provided since its inception. Cases may range from exploratory to on- the grant cycle for the 2017 fiscal year, 22 These types of services started with its pre- going advice over years according to Gor- adults and 39 children were served. Twelve decessor, the House of Refuge, founded don. In terms of an exploratory case, a cli- cases involved custody/visitation and eight in 1974 and subsequently morphed into ent may question whether she has grounds cases involved divorce. Many of the cas- Women Helping Battered Women in 1980. to bring a court action. The client receives es involve post-judgment relief according Over the years, the initial focus on the safe- information about what is needed to bring to Gordon. ty needs for victims of domestic violence a court action and the legal process. They The legal clinic augments the legal advo- for services such as emergency housing try to demystify the court process and the cacy program that includes attendance at and hotline services expanded to transi- client can then decide. court for the Relief from Abuse docket and tional housing, children’s programs, sup- Sometimes, the questions are not so maintaining a referral list to attorneys who port groups, and legal advocacy. much exploratory as dispelling myths. One will provide pro bono case representation. The legal clinic builds on the legal ad- myth according to Gordon is a threat by an Jordan, Gordon and Rotax invite attor- vocacy program by giving clients a place abuser made to keep the other parent in neys to look into pro bono opportunities where they can seek information about the relationship. One example is threat- with Steps to End Domestic Violence. Vol- their ongoing legal issues stemming from ening that the other parent will lose cus- unteering to assist Steps is a rewarding ex- domestic violence. tody since he/she takes prescribed antide- perience that brings real results. Jordan, Gordon and Rotax agree that pressant medication while coping with the the operation of the legal clinic is a team abuse.

34 THE VERMONT BAR JOURNAL • SPRING 2018 www.vtbar.org by Robyn A. Sweet, CRP™ and Lynn C. Wdowiak, RP® Certified v Certificated Paralegals What’s the Difference and Why You Should Care

This article is designed to explain what challenging but rewarding process. While NFPA; The National Association of Legal paralegal certification entails and the dif- there are a number of institutes who offer Assistants (NALA); and The Association for ferences between the three organizations’ such a program, only some of these pro- Legal Professionals (NALS) (formerly the certifications and credentials. grams are ABA approved. There are para- National Association for Legal Secretaries) Vermont requires no formal training to legal certificate programs that only require all offer both entry-level and advanced ex- hold the title “paralegal.” A paralegal is a high school diploma or equivalent; how- ams. Each requires certain prerequisites defined by the American Bar Association ever, most are designed to run concurrent- in order to be eligible to take the exam. (ABA) as “a person, qualified by education, ly with an associate or bachelor’s degree or After earning the credential, the paralegal training or work experience, who is em- are post-degree programs. must renew the credential by earning ap- ployed or retained by an attorney, law of- While it is not necessary for a program proved CLE credit during the licensing pe- fice, corporation, governmental agency or to be ABA approved, it is more benefi- riod mandated by the organization. other entity and who performs specifically cial to the holder of the certificate if it is. delegated substantive legal work for which There are over 200 programs approved by Who Can Take These an attorney is responsible.” The VBA has the ABA for a paralegal certificate. ABA- Certification Exam(s)? adopted the ABA definition and standards approved programs require 60 semester in its Constitution. hours (including 18 hours of general educa- In order to take these certification ex- The National Federation of Paralegal As- tion and 18 hours of legal specialty cours- ams, a paralegal has to meet certain crite- sociations (NFPA) and the Vermont Parale- es). ria as set forth by NFPA, NALA and NALS. gal Organization (VPO) go a bit further and Entry into a paralegal certification pro- The specific credentials are explained in define a paralegal as “a person qualified gram will vary depending upon the pro- further detail below. through education, training or work expe- gram. Many programs require only a high rience to perform substantive legal work school diploma or equivalent, but others If the paralegal does not have a bachelor’s that requires knowledge of legal concepts require some post-secondary education. degree, he or she would need the follow- and is customarily but not exclusively per- The requirements for obtaining a certifi- ing in order to be eligible to take the any formed by a lawyer.” cate in paralegal studies vary slightly from of the credentialing exams: The VPO is the formal paralegal group program to program. However, all pro- • at minimum, high school diploma or in Vermont and is affiliated with NFPA. grams require course work completion in GED, 5 years working as a paralegal Therefore, all members of the VPO are also legal principles, legal research and ethics. under the supervision of a member of members of NFPA. Paralegal certification programs are a the Bar, plus evidence of 12 hours of To be a voting member of the VPO, a beneficial way for a person to start out into CLE within two years prior to the ex- paralegal must have a combination of edu- the legal field, especially if they have no amination date [for the CRP creden- cation, experience, and an affidavit by an prior legal experience. A paralegal with tial]; attorney that he or she has a certain num- a certificate or post-secondary education- • at minimum, high school diploma or ber of years of service as a paralegal and al background in the legal field has proven GED, 7 years working as a paralegal that 60% of that work performed is sub- advantages over other applicants without under the supervision of a member of stantive legal work. However, a paralegal any training (either formal or on-the-job) the Bar, plus evidence of 20 hours of has no obligation to have any formal train- for legal positions. An educational foun- CLE within two years prior to the ex- ing, certification or designation. Obtain- dation into the field of law offers a “certifi- amination date [for the CP credential] ing these additional credentials is solely a cated” paralegal a solid background to be • an associate degree in paralegal stud- personal desire or a requirement of an em- able to assist in a legal matter from begin- ies plus 6 years of paralegal work ex- ployer. ning to end. perience [for the RP credential]; Once a paralegal has successfully com- • graduation from an ABA-approved le- “Certificated” or “Certified” – pleted a program of this type, he or she gal studies or paralegal studies pro- There is a difference. receives a certificate and is “certificated.” gram, or a minimum of 5 years of However, they are not able to accurate- paralegal work experience [for the PP It can be challenging to understand the ly state they are “certified.” For a parale- certification]. different paralegal credentials. There is a gal to accurately state they are “certified,” difference between being a certified para- they would need to successfully complete Even with a bachelor’s degree, the parale- legal and a paralegal with a certificate. a paralegal certification exam. A parale- gal still needs to meet the following crite- A paralegal may obtain a paralegal “cer- gal certification exam allows one to obtain ria before taking each exam: tificate” through a number of educational professional credentials through a vetting • If the bachelor’s degree is not in para- programs completely online, in classrooms, progress which involves a successful pass- legal studies: one year’s experience or by a combination of the two. Most of ing of an exam. as a paralegal, or 15 semester hours these courses take 9 to 24 months to com- of substantive paralegal courses [for plete and cover either a general course of Who offers “certification” exams? the CP credential]. paralegal studies or a specific area of law. • If the bachelor’s degree is not in para- These programs also can be independent There are several national certifying or- legal studies: three years’ experience or a part of a larger program. ganizations that offer a paralegal an op- of substantive paralegal work [for the Obtaining a paralegal certificate can be a portunity to obtain a paralegal credential. RP credential]. www.vtbar.org THE VERMONT BAR JOURNAL • SPRING 2018 35 • If the bachelor’s degree is not in para- mont has 4 CORE Registered Paralegals: ments to take the examination. legal studies: a paralegal certificate Julie Anderson-Adams, CRP; Jill Drink- [for the CRP credential]. water, CRP; Jennifer McGean, CRP; and Certified Paralegal®: Robyn Sweet, CRP. The exam was updated for the 2018 test- There are other combinations that would ing year to ensure the examination content enable a paralegal to take these exams, Paralegal Advanced Competency Exam®: was up-to-date with current rules and laws, but the above is the bare minimum for be- In 1996, the PACE® exam was estab- and to update the roles and responsibilities ing qualified to take the exams. lished. The PACE exam focuses on para- of paralegals. legal practice and substantive areas of law The CP® exam has two required sec- National Federation of covered in 200 questions. The PACE exam tions; one is a knowledge exam with mul-

Certified v Certificated Paralegals Paralegal Associations questions cover 5 areas: Administration of tiple choice questions on each of the fol- Client Legal Matters; Development of Cli- lowing areas of law: US Legal System, Civil The National Federation of Paralegal As- ent Legal Matters; Factual and Legal Re- Litigation, Contracts, Corporate/Commer- sociations (NFPA), founded in 1974 and search; Factual and Legal Writing; and Of- cial Law, Criminal Law and Procedure, Es- the first national paralegal association, is fice Administration. Questions on ethics, tate Planning and Probate, Real Estate and dedicated to promoting the growth, de- technology and terminology are included Property, Torts, Professional and Ethical Re- velopment and advancement of the para- in all areas. Once the application for the sponsibility. If this section is passed, then legal profession. In 1994, NFPA began exam is submitted and the paralegal is ap- the paralegal can take the “Skills Exam” developing an exam to measure a parale- proved to take the exam, they will receive which is a written assignment consisting gal’s knowledge of legal practice, ethics, a letter and have 90 days to take the exam. of writing skills and critical thinking skills. technology and general legal competen- A paralegal who passes the PACE exam will The Skills Exam can be taken after 2 weeks cy. NFPA has developed two levels of cer- receive a letter from NFPA indicating their have passed since passing the Knowledge tification, the Paralegal Core Competency passing and granting permission for the Exam, but the Skills Exam must be taken Exam (PCCE™), which gives the paralegal use of the designation RP following their and passed within 365 days after receiving the ability to use the credential Core Reg- name. In order to maintain the RP certifica- notification of eligibility in order to earn the istered Paralegal (CRP™) and the Parale- tion, the paralegal must complete 12 hours CP designation. Examinees who fail either gal Advanced Competency Exam (PACE®), of CLE every 2 years, including at least 1 part of the exam must wait 90 days before which gives the paralegal the ability to use hour of ethics. re-taking either part. the credential PACE Registered Paralegal The PACE exam has higher educational In order to maintain the certification, the (RP®). and work experience prerequisites than the paralegal must complete 50 hours of CLE PCCE and PACE paralegal exams; each PCCE Exam. The PACE Exam is a more ad- every 5 years, including 5 hours of legal requires an application and fee prior to sit- vanced exam which requires, among other ethics. There are 19,284 Certified Parale- ting for the exam as well as specific educa- things, that an applicant have a minimum gals in the US. Vermont currently has one tional and work prerequisites similar to the of an associate degree specifically in Para- Certified Paralegal®, Lucia White, CP®. requirements to join the VPO. legal Studies, plus six (6) years of substan- tive paralegal experience prior to being eli- Advanced Certified Paralegal: Paralegal Core Competency Exam™: gible to take the exam. There are specific areas of law for which The NFPA CORE (PCCE™) exam is the Since 1996, 1,803 applicants have sat a paralegal can earn the ACP® designa- newest credential to the profession, having for PACE and 1,094 have passed, nation- tion. These generally require a 20-hour just been established in 2011. The PCCE ally. Vermont has 12 PACE Registered self-study course, with exams both during is an exam established for many types of Paralegals: Julie Anderson-Adams, RP; the course and at the end. NALA is work- paralegal work. The PCCE exam is 125 Sara Boyden, RP; Corinne Deering, RP; ing to add courses in Business Organiza- questions which cover areas such as Para- Ashley LaRose, RP; Tracy Lord, RP; Heath- tion, Commercial Bankruptcy, Contracts legal Practice; Ethics and Professional Prac- er Moreau, RP; Michelle Perlee, RP; Lisa Management, Estate Planning, Family Law tice; U.S. Legal System; Legal Research; Le- Pettrey-Gill, RP; Kristin Provost, RP; Carie – Dissolution Case Management, Child gal Writing and Critical Analysis; Commu- Tarte, RP; Lynn Wdowiak, RP; and Bernice Custody, Child Support, Visitation, Division nication; Law Office Management; Legal “Missy” Woessner, RP. of Property and Spousal Support, Person- Technology as well as Substantive Areas of al injury with 8 practice course areas, and Law. Once the application for the exam is National Association of Legal Assistants Real Estate – Land Use and Principles, and submitted and the paralegal is approved to Trademarks. Until then, the current cours- take the exam, they will receive a letter and NALA offers the Certified Paralegal es include Criminal Litigation, Discovery, e- have 90 days to take the exam. A parale- exam. A paralegal who passes this exam Discovery, Family Law – Adoption and As- gal who passes the PCCE exam will receive earns the “CP®” designation. Once a para- sisted Reproduction, and Trial Practice. a letter from NFPA indicating their passing legal has passed the Certified Paralegal NALA is working to add ACP® certifi- and granting permission for the use of the exam, NALA offers courses to earn the Ad- cations. There are currently no Advanced CRP™ designation. In order to maintain vanced Certified Paralegal, “ACP®” cre- Certified Paralegals in Vermont. There are the CRP certification, the paralegal must dential. This differs from the NFPA CRP™ 1,165 ACP certified paralegals in the US complete 12 hours of CLE every 2 years, in- and RP® because the paralegal must first and Canada. cluding at least 1 hour of ethics. pass the CP® exam, then take additional The PCCE exam does not require a mini- classes and pass additional exams relat- Association of Legal Professionals mum post-secondary degree, but does re- ing to specific topics in order to earn the quire an applicant to have obtained five (5) ACP® credential. It also differs from NFPA NALS offers three certifications, the Ac- years of experience in the two years before in that, under NFPA’s certification, a para- credited Legal Professional (ALP), the Pro- taking the exam if the candidate does not legal can automatically take the advanced fessional Legal Secretary (PLS) [also called hold an associate or bachelor’s degree. PACE Exam without first having to take the the Certified Legal Professional (CLP)], and Since 2011, 777 applicants have sat for PCCE as long as he or she meets the mini- the Professional Paralegal (PP) certifica- PCCE and 599 have passed nationally. Ver- mum educational and experience require- tion. The ALP exam is a four-hour exam

36 THE VERMONT BAR JOURNAL • SPRING 2018 www.vtbar.org Certified v Certificated Paralegals designed for students and entry-level pro- gal field and is interested in elevating and that those paralegals who have sought fessionals working to break into the legal maintaining a level of education and com- out these certifications or credentials have profession. The PLS and/or the CLP exam petency in his or her work. It is an indicator made an investment into their career. is a one-day, four-part exam for individuals to you as the employer that he or she pos- ______with at least 3 years of legal work experi- sesses some level of proficiency and skill. About the authors: ence. The PP is a one-day, four-part exam Certification exams also serve as back- Robyn A. Sweet, CRPTM is a Vermont designed for individuals who have gradu- ground verification for the employer since Paralegal Organization member and a ated from a paralegal studies program, or all of these examinations require certain member of the VBA Paralegal Section. have a minimum of 5 years paralegal/legal levels of education and experience in or- She has been a CORE Registered Parale- assistant experience. der to sit for them. This will all translate to gal since October of 2016 and has worked Each of NALS credentials must be re- a higher quality of work product generated at Cleary Shahi & Aicher, P.C. in Rutland newed every 5 years, with a 50-hour CLE for your firm. In addition, having a certi- for over 7 years. Robyn is also the Internal credit requirement for the ALP credential, fied paralegal on staff may justify your firm Marketing Coordinator for NFPA. and a 75-hour CLE credit requirement for charging a higher hourly rate for that para- Lynn C. Wdowiak, RP® is a Vermont the PLS/CLP credential and a 75-hour CLE legal’s work. It also may make it easier to Paralegal Organization member and a credit requirement which must include a receive an award of prevailing market rates member of the VBA Paralegal Section. minimum of 5 hours ethics credits for the for paralegal work in a case where your firm She has been a PACE Registered Paralegal PP credential. is awarded attorney’s fees. since November of 2012 and has worked In addition, employees who feel valued at Ryan Smith & Carbine, Ltd. for 8 years. Why Should Your Firm Hire a Paralegal will put more effort into their work, in- Lynn graduated from Woodbury Institute with a Certification or Encourage Your crease their standards, and increase their in Montpelier in 2009 with a post-grad- Current Paralegal to Earn Certification? job-based self-worth, making them a big- uate Certificate in Paralegal Studies and ger asset to your firm. While it is nearly im- holds a Bachelor of Business Administra- A paralegal that has voluntarily taken a possible to say which credential or pro- tion degree from Northwood University in certification exam and passed it is show- gram is the best in producing a paralegal Midland, Michigan. ing that he or she is invested in the parale- ready for work at your practice, it is clear

www.vtbar.org THE VERMONT BAR JOURNAL • SPRING 2018 3 7 by Mark Bassingthwaighte, Esq. Watch Out for These Common Conflict of Interest Traps

I’ve spent years trying to encourage solo been advised to seek independent coun- Our conflict rules don’t speak of bright and small firm lawyers to develop and con- sel. Should the remaining non-client decide lines or the passage of time as being deter- sistently use a formal conflict checking sys- to proceed without representation, under- minative. Keep it simple. For conflict reso- tem that tracks all of the information best stand that you don’t get it both ways. In lution purposes, once someone becomes a practices currently dictate. In all honesty, I spite of any documentation to the con- current client, they are always a current cli- will admit that I have had limited success trary, if you continue to interact with this ent unless and until you clearly document in this endeavor. This doesn’t mean I won’t individual by answering questions to help otherwise. So, for example, one would be keep trying; but it does mean I’ve got to move the matter along you can uninten- well advised to never alter a will for one accept the reality of the situation because, tionally establish an attorney client rela- party after having done wills for both par- truth be told, conflict missteps in the solo tionship and undo the precautions taken. ties a year or so earlier absent clear docu- and small firm arena are not typically a Your actions will always speak louder than mentation that the prior representation of “whoops, we missed that name” kind of your written words. Never answer any le- both had ceased. I would also caution you thing. More often than not the attorney gal questions from the non-client. Simply to keep this in mind if you ever get to the simply failed to recognize that a conflict advise them to seek independent counsel, point where you’re considering suing a cli- was in play, or if she did see it, decided and if that slows things down, so be it. ent for fees. You can’t sue current clients that the issue wasn’t significant enough to so make sure documentation that the cli- worry about. Given this, I’m changing my Avoid joint representation in those po- ent is a past client exists. Again, this is typ- approach and instead of trying to convince tential conflict situations where there is ically done in a closure letter that plainly you to expand your conflict database and a high probability that potential conflicts states something along the lines of “this run every name under the sun through it, will evolve into actual conflicts such as with concludes our representation of you in this I thought I’d share a few general tips that criminal co-defendants or with certain sit- matter.” In fact, this is the reason why con- can help you avoid many of the more com- uations involving multiple plaintiffs. Re- flict savvy firms keep all letters of closure mon conflict missteps. member Murphy’s Law. More often than even after destroying the related file years not the actual conflict will arise. If it does after closing it. The closure letter is part Be wary of representing two or more and is one that cannot be waived, your only of the conflict database because it docu- parties at once such as a divorcing couple, option will be to completely withdrawal ments who is a current client and who is a a husband and wife wanting wills, multiple from the entire matter. Stated another way, past client. plaintiffs in a personal injury matter, mul- in most multiple client representation mat- tiple partners forming a new business, or ters if you’re conflicted out for one client, Avoid becoming a director, officer or the buyer and seller in a real estate trans- you’re conflicted out for all. This is just one shareholder of a corporation while also action just for starters. I’m not saying you of the risks that come with joint representa- acting as the corporation’s lawyer. This can never take on multiple parties. There tion. In the world of ethics and malpractice, dual role can create all kinds of problems are situations where it is ethically permis- we call an attempt to stay in with one cli- to include loss of attorney client privilege, sible and entirely appropriate. However I ent while dropping another the “Hot Pota- an increased risk of a malpractice claim, would advise that if you do, fully disclose to Drop.” Should a claim ever arise as a re- and an inability to participate in certain de- to each of the multiple clients the ramifi- sult of your dropping all but one as a client, cisions. If you do find yourself on a client cations of agreeing to joint representation. the lawyers on the other side will put this corporate board, do not further compound Discuss how both potential and any actual spin on your actions. They’ll argue that you the conflict issues by taking an ownership conflicts will affect your representation of put your financial interests above the inter- interest in the company that exceeds 5%. everyone. Advise the clients that on mat- ests of the client or clients you dropped At that point the potential conflict prob- ters concerning the joint representation and that rarely turns out well for the lawyer lems reach a point where malpractice car- there is no individual client confidentiality being sued. riers will often decide to exclude the risk. among the group. In addition, consider ad- The safest play is to never take a financial vising each of them to seek independent Always document the conclusion of interest in a client entity due to the difficul- outside advice as to whether they should representation with a letter of closure. In ty in proving down the road that you never agree to joint representation. Regardless, terms of conflicts, an interesting question put your financial interests above the inter- do not proceed with the representation un- that arises from time to time is when does a ests of your client. til all clients have given you their informed current client become a past client for con- consent which should be in writing. flict resolution purposes? The temptation is Periodically stop and remind yourself Now, two quick side notes are in order. to rationalize that the passage of time cou- just who the client is and act according- First, I can share that non-waivable conflicts pled with a bright line gets you there. Af- ly because sometimes it can get messy. do exist, in spite of what some of our peers ter all, doesn’t the fact that the deed was For example, an attorney was approached choose to believe, and they often appear delivered four months ago, the settlement by the son of two long-term clients. Son in- in these types of settings. When in doubt, proceeds were disbursed two years ago, troduced several non-clients to the attor- seek advice from someone well versed in the judge signed the final order last year, ney and asked the attorney to incorporate our ethical rules. Second, in an attempt to or the contract was signed over five years a startup business and handle related mat- avoid dual representation problems some ago mean these various matters are con- ters for a small stake in this new company. attorneys will agree to represent one of the cluded and all of these clients are now past The son’s contribution was to be his intel- parties and document that the other has clients? lectual capital and the non-clients were the

38 THE VERMONT BAR JOURNAL • SPRING 2018 www.vtbar.org Common Conflict of Interest Traps money guys. The attorney accepted the financial advisor. (I know, I just couldn’t stop myself.) work and had frequent contact with the son One real risk with these deals is that the ______and the investors throughout the process. business really does prosper or terribly fal- ALPS Risk Manager Mark Bassingth- Sometime later, one of the investors con- ters. In either case the attorney can be in a waighte, Esq. has conducted over 1,000 law tacted the attorney and asked him to re- difficult position. It’s either that he has been firm risk management assessment visits, pre- move a preemptive rights clause from the substantially overpaid from the client’s per- sented numerous continuing legal education organizing documents in order to facilitate spective or is now facing the reality that no seminars throughout the United States, and a needed cash infusion from two additional payday is coming. While there are no spe- written extensively on risk management and investors who would only make a contribu- cific boundaries as to how much of an own- technology. Check out Mark’s recent semi- tion if they were granted a substantial stake ership interest is too much, certainly the nars to assist you with your solo practice by in the company. There were no funds avail- degree to which an attorney can maintain visiting our on-demand CLE library at alps. able to pay the attorney for this additional independent legal judgment would seem inreachce.com. Mark can be contacted at: work but he was offered the opportunity to be directly correlated to the percentage [email protected]. increase his own stake in the company. This of ownership interest owned. As a guide- request forced the attorney to determine line I would recommend that the ownership Disclaimer: ALPS presents this publication or who his client was. At that point he realized interest obtained never exceed 5% as the document as general information only. While ALPS strives to provide accurate information, ALPS ex- that his failure to clarify and document who conflict concerns become too high at that pressly disclaims any guarantee or assurance that was a client and who wasn’t, coupled with point and beyond. this publication or document is complete or ac- past actions that seemed to allow corpo- curate. Therefore, in providing this publication or rate constituents and investors to believe Last but not least, remember that mem- document, ALPS expressly disclaims any warran- ty of any kind, whether express or implied, includ- that he represented everyone, resulted in ory doesn’t cut it and conflict checking ing, but not limited to, the implied warranties of his correctly deciding that he had no other systems are only as good as the people merchantability, fitness for a particular purpose, or option but to withdraw. who use them. Always keep the system cur- non-infringement. rent and use it consistently or it will be in- Further, by making this publication or document Never solicit investors on behalf of a effective. Check and update your conflict available, ALPS is not rendering legal or other pro- fessional advice or services and this publication or client’s business. If and when that business database every time you consider taking document should not be relied upon as a substi- goes south, you will be the one targeted on a new matter, regardless of whether the tute for such legal or other professional advice or for the recovery of all losses and guess matter was accepted or declined. Circu- services. ALPS warns that this publication or docu- what? Malpractice policies do not cover in- late new client/matter memos throughout ment should not be used or relied upon as a ba- sis for any decision or action that may affect your vestment advice. This one will be on you. the firm. Make sure the memo affirmatively professional practice, business or personal affairs. documents that all attorneys and staff have Instead, ALPS highly recommends that you consult Be extremely cautious about entering reviewed the memo to include thinking an attorney or other professional before making into business relationships with clients. about personal and business interest con- any decisions regarding the subject matter of this At the outset, Rule 1.8 is clear. The trans- flicts they may individually bring to the ta- publication or document. ALPS Corporation and its subsidiaries, affiliates and related entities shall action must be fair and reasonable to the ble. Finally, don’t forget to look for poten- not be responsible for any loss or damage sus- client. The client must be made fully aware tial conflicts that might exist if the firm has tained by any person who uses or relies upon the of and clearly understand the terms of the gone through a recent merger with anoth- publication or document presented herein. transaction, the material risks and disad- er firm or had any new lateral or staff hires. vantages to the client, any reasonable al- ternatives, the attorney’s part in the trans- action, and any potential conflicts of inter- est. The client must not only be advised to seek independent legal advice but actually given a reasonable amount of time to do so. Finally, the client must provide written consent. The problem here is that the attorney needs to be particularly mindful that he cannot continue employment if his inde- pendent professional judgment will be af- fected by the business interest taken. Ad- ditionally, the full disclosure requirements of the rule brings about an obligation to disclose the fact that at some point the at- torney and the client may potentially have differing interests in this business transac- tion that would preclude the attorney from continued service. Further, while the client should be encouraged to seek indepen- dent legal counsel, many times the rea- son that the issue comes up is that the cli- ent has no money to pay for legal servic- es and the business deal being considered is an offer of stock in exchange for legal services. At a minimum, the client should be counseled to seek independent advice from another source, perhaps their CPA or www.vtbar.org THE VERMONT BAR JOURNAL • SPRING 2018 3 9 Thank you for Supporting the Vermont Bar Foundation

All Vermont-licensed attorneys in active status, as well as all judges and justices on the Vermont bench, are members of the Vermont Bar Foundation. For over 35 years, the Vermont Bar Foundation has dedicated itself to improving access to justice in Vermont. Thanks to its members’ generous donations, as well as through their IOLTA accounts, the VBF has provided funding for legal assistance to thou- sands of low-income Vermonters. The monies have also provided funding for a variety of public education programs about the courts and the legal system. We’d like to recognize the many contributions lawyers and judges have made to the Vermont Bar Foundation in calendar year 2017. Your Foundation awarded a total of $890,772 to 19 different legal service grantees in 2017. Those grantees include, among others, the South Royalton Legal Clinic; Vermont Bar Association County Bar Legal Assistance Projects in several counties; Vermont Legal Aid; Have Justice Will Travel; and the Community Restorative Justice Center. A full list of the grant programs can be found at www.vtbarfounda- tion.org. The primary source of VBF funding is through Vermont lawyers’ IOLTA (interest earned on lawyers’ trust accounts) accounts. A special thanks to our Prime Partner institutions who pay interest rates of 1.50% to 2.00% on your IOLTA accounts. Their continuing generosity allows the Foundation to fund more of the valuable programs. In addition to IOLTA monies, during 2017 lawyers contributed a total of $5,590 through the “opt-in” option on the attorney license renewal form, contributions totaling $2,965 were received from United Way, which includes the State of Vermont’s VTSHARES program and the Rutland County Bar Association donated a total of $2,000, which was passed through to the Rutland Pilot Project. We’d also like to extend special thanks to Leslie Black and Graham Govoni from Black & Go- voni, PLLC for generously donating a week’s stay in their Caribbean vacation property; the Caribbean Vacation Raffle netted $3,675 for the Foundation! Lastly, we thank the many lawyers who have provided pro bono and low bono assistance to Vermonters in need. Many of the grant programs that receive funds from the VBF would not be able to function without Vermont lawyers’ selfless generosity of their time and expertise. Listed below are individuals and law firms who donated to the Vermont Bar Foundation in calendar year

Anonymous (4) Frederick Glover, PLLC Gordon Gebauer Karen S. Allen Eric Goldwarg Elijah Gleason Joshua Atkisson Anonymous (4) Frederick Glover, PLLC Katelyn Atwood Karen S. Allen Eric Goldwarg Eric Avildsen Joshua Atkisson Graham Govoni Kurt and Deborah Bailey Katelyn Atwood Sheila Grace Will Baker Eric Avildsen Mary Granger Christopher M. Bennett Kurt and Deborah Bailey Devon Green Alan Biederman Will Baker Greene & Loignon, P.C. Kristina L. Bielenberg Christopher M. Bennett Neil Groberg Leslie Black Alan Biederman Gwendolyn Harris Amy Brosius Kristina L. Bielenberg Peter V. Holden Maria L. Byford Leslie Black Hans Huessy Robert B. Chimileski Amy Brosius Daniel Jerman David Cole Maria L. Byford Barry Kade Gladys Corbett Robert B. Chimileski Julie Kalish Teri Corsones David Cole Keith J Kasper Lawrin Crispe Gladys Corbett Jay Kenlan Beth A. Danon Teri Corsones Michael Kennedy Amy Davis Lawrin Crispe Deborah Kirchwey Emily Davis Beth A. Danon Martin LaLonde Michael Desautels Amy Davis Brent Lanoue Judith Dickson Emily Davis Pauline Law Michael Donofrio Michael Desautels James Layman Elizabeth Drake Judith Dickson Edward Leckerling Leslie Dunn Michael Donofrio Samantha Lednicky Jennifer Faillace Elizabeth Drake Sarah London Timothy Fair Leslie Dunn Alison Lowe Veronica Fallon Jennifer Faillace Kevin Lumpkin Fiona Farrell Timothy Fair Benjamin Luna Penelope Fehr Veronica Fallon C Brigid Lynch Mary Olive Flory Fiona Farrell Nathan Lynch Richard Foote Penelope Fehr Zachary Manganello Priscilla B. Fox Mary Olive Flory Benjamin Marks Erin Gallivan Richard Foote Charles Martin Gordon Gebauer Priscilla B. Fox Kelly Massicotte Elijah Gleason Erin Gallivan Jennifer Maynard

40 THE VERMONT BAR JOURNAL • SPRING 2018 www.vtbar.org Thank You for Supporting the VBF Lon McClintock Karen Richards Deborah Venman James V. McFaul Lila Richardson Laureen Vitale Christopher McVeigh Justice Robinson Geoffrey Vitt Alexander M. Meiklejohn Raphael Roman Kevin Volz Cielo Marie Mendoza Jennifer Rowe Thomas Waldman Merchants Bank Rutland County Bar Association Barbara Waters John S. Monahan Christopher Sanetti Bessie Weiss Laura B. Murphy David Schultz Mary Welford Jean Murray James Schumacher Robert Williams NorthCountry Federal CU Benson Scotch Elizabeth C. Woodcock Betty Nuovo Lila Shapero Jane Woodruff Paul O’Brien Alexander Shriver Sophie Zdatny Carol Ode Joshua Simonds Steven M. Zdatny Thelma Patton Sarah Star Beth Zelman Donald Pellman Carol Sucher Joseph R. Perella David Sunshine *Includes General Donations only, such Alison Powers Elizabeth Thomas as opt-in, raffles and other non-specific Roger Prescott Stephanie Thomson gifts, and does not include Access to Alexander Ramsvig Jason Tiballi Justice William J. Reedy Benjamin Traverse Chief Justice Reiber Gordon Troy Karen Reynolds Erin Turner

upcoming vba cle’S NOT TO BE MISSED!

May 16, 2018 • VBA’s First Annual Tech Show • @ the DoubleTree (fka The Sheraton), S. Burlington Est. 5.5 Credits. Be efficient, be ready and be inspired by our Keynote Speakers: Eddie Hartman, co-founder of LegalZoom and Brian Kuhn, co-founder and Leader at IBM Watson Legal Solutions! Come see a host of law-related vendors like Clio, CosmoLex, Casemaker, LawPay, TCi, SymQuest, Dominion Tech, Court Call, TurboLaw, Tabs3 and Martindale-Nolo demo their wares and attend substantive, yet practical, CLE’s on e-discovery, cybersecurity, document management, time & billing, law office accounting, CRM technologies, hardware, cloud computing, auto-notifications and more.

June 12, 2018 • Environmental Law Day • @ Trader Duke’s Hotel (fka DoubleTree), S. Burlington Get the environmental year in review and learn about the current state of Act 250 on its anniversary year. The day will include an overview of the Act 250 Commission and where we think the Commission is headed. Representatives of state agencies and land use lawyers will assess the magnitude of the changes coming our way. Judges from the Environmental Division will give an update and the year in review will include decisions from the District commission, Environmental Division, Public Utility Commission and the Vt Supreme Court!

July 13, 2018 • VBA 2nd Annual Trial Academy • @ Vermont Law School, S. Royalton Join us again for this interactive CLE where participants prepare a segment or segments of a trial and receive feedback from Vermont Judges and members of the American College of Trial Lawyers.

AND SAVE THESE DATES:

Late June (TBD): Procrastinator’s Day and Probate Law update

September 27-28: VBA Annual Meeting @ The Equinox Resort, Manchester

Late October (TBD): Pro Bono Conference @ The State House, Montpelier

November 7, 2018: Real Estate Law Day @ The DoubleTree (fka the Sheraton), S. Burlington

December 7, 2018: Annual Bankruptcy Holiday CLE @ Location TBD

www.vtbar.org THE VERMONT BAR JOURNAL • SPRING 2018 4 1 by Mary C. Ashcroft, Esq. THE CHILDREN’S CORNER “Low Bono” Programs Expand to Help Vermont Children and Families

Ten years ago, the Vermont Bar Associa- and because the relinquishing parents must com. Attorneys can also contact VBA’s Le- tion, the Rutland County Bar and the Ver- agree to a voluntary termination of paren- gal Access Coordinator Mary Ashcroft at mont Bar Foundation piloted a low bono tal rights, PACAs are often negotiated as a [email protected], for more information legal project in Rutland County. Patterned way of settling contested TPR cases. or to sign up for the PACA low bono panel. after the old Judicare program, the Rutland Termination of parental rights cases are Pilot Project recruited, trained and paid pri- a time-consuming and rapidly expanding Adult Involuntary Guardianships vate attorneys to provide unbundled repre- component of the Family Division docket. sentation to low-income litigants in certain TPR petitions have increased by 60% be- While many adult involuntary guardian- non-criminal cases. Payments to the attor- tween FY’12 and FY’16.3 This trend is like- ships proceedings are brought because el- neys were at the “low bono rate” of $60 ly to continue over the next few years due derly respondents have growing difficulty per hour for between 3-5 hours per case, to a comparable increase in CHINs cases.4 managing their affairs, a number of guard- and were funded with a grant from the Ver- In TPR cases, the Vermont Department ianships are requested to assist young mont Bar Foundation. of Children and Families, parents and chil- adults who have developmental or mental Over the years, this low bono program dren all have party status and all have at- health disabilities, or who have suffered a has expanded geographically and in scope. torneys representing them and/or provid- traumatic brain injury. Now in 9 Vermont counties, low bono at- ed for them by law. Adoptive parents have Vermont law requires the Probate Divi- torneys cover landlord/tenant, foreclosure neither party status nor legal representa- sion to appoint counsel for respondents in and collection defense cases in Civil Divi- tion. But enormous pressure is brought adult involuntary guardianship proceedings sion, child support contempt defense cas- on them in particular to enter into a post when the initial petition for guardianship is es in Family Division, and adult involun- adoption agreement which will impact filed.5 The role of counsel is to safeguard tary guardianship cases in Probate Divi- their new family for many years to come. the due process rights of the client, ensure sion. Over 1,400 clients have been directly Last spring, recognizing the unequal bar- that the client’s wishes are presented to the served by these projects. gaining position of adopting foster parents court, ensure that there is no less restrictive This Vermont low bono model is cost ef- and facing a growing docket of final TPR alternative to guardianship and that the fective and flexible. Now it is being ex- hearings, Family Judge Nancy Corsones proposed guardian is qualified, and ensure panded further with new grant funds from asked for help from the Rutland Pilot Proj- that the need for guardianship is proven by the Vermont Supreme Court. The grants ect, the local low bono program. clear and convincing evidence.6 will provide low bono representation in all The Rutland Pilot Project agreed to run Because this statutory mandate is un- 14 counties for adopting couples in PACA a trial PACA program. A CLE program funded, probate courts have traditional- negotiations, and for respondents in adult trained and recruited local attorneys, and ly drawn on the local legal community to involuntary guardianship proceedings. A PACA cases were added to the list of low provide pro bono services in cases where separate recent grant from the US Depart- bono cases covered at the rate of $60 per the guardianship estate does not have suf- ment of Justice funds representation of vic- hour for up to 3 hours each. Since April ficient assets to compensate an attorney. tims of crime in various civil issues arising of 2017, 16 adopting foster parents have Statute requires that the Court maintain a from their victimization. been provided with limited representa- list of pro bono counsel from the private Vermont lawyers are needed to provide tion by the Rutland Pilot Project’s local low bar to be used before appointing non- low bono service for all of these programs. bono attorneys. profit legal services organizations to serve Inquiries about expanding this project as counsel.7 But in a number of Vermont Post Adoption Contact Agreements were received from Windsor, Washington counties the pool of volunteer attorneys is and Windham attorneys and judges. Be- diminishing as the bar itself ages and re- In 2015, the Vermont Legislature creat- cause of this growing interest, the Vermont tires. ed a means by which relinquishing parents Bar Association was invited to apply for a This trend was evident a number of years and adopting parents could enter into post grant from the Vermont Supreme Court ago in Rutland County. When the low adoption contact agreements.1 These PA- to create statewide PACA representation. bono Rutland Pilot Project was established CAs are voluntary agreements intended to The grant was awarded in January of this in 2008, among its priority cases were adult allow relinquishing parents some contact year, and the process of recruiting and involuntary guardianship establishment with their children after the parents’ rights training attorneys is underway. proceedings. Instead of calling on the de- are voluntarily terminated and the adop- The Vermont Bar Association is present- creasing number of pro bono attorneys, tion process is complete. The PACAs are ing a panel on PACA representation at its the Rutland Pilot Project began paying lo- enforceable through a process in Vermont mid-year meeting on March 23, 2018 in cal counsel $60 per hour for up to 3 hours Probate Division2, and can extend as an South Burlington. The presentation will be per guardianship case. Now in its 10th year, obligation on adopting parents throughout recorded for further training for lawyers in- the Rutland Pilot Project has been very suc- the minority of their children. terested in joining the PACA low bono pan- cessful, having received and provided rep- Because PACAs must be entered into els in counties in which they practice. More resentation in over 275 adult involuntary when the child is in DCF custody prior to information about the Mid-Year Meeting guardianship cases over its lifetime. any termination of parental rights (“TPR”), panels is available at www.vba.myevent. The low bono model of representing low

42 THE VERMONT BAR JOURNAL • SPRING 2018 www.vtbar.org Children’s Corner income/low asset respondents in adult in- of Vermont legal services providers to ob- voluntary guardianship matters was ex- tain a US Department of Justice Victims Would you like to submit an panded to other county low bono proj- of Crime Act (“VOCA”) grant. The grant article for the ects. In January of 2018, the Vermont Su- funds programs which provide legal ser- preme Court awarded the VBA a generous vices to those who have been the victims Children’s Corner? grant to expand low bono representation of a crime and who are suffering legal con- The Vermont Bar Journal in these guardianships to all 14 Vermont sequences of that victimization. Some of is soliciting authors for Counties. those victims are children. The VBA is recruiting attorneys interest- The Vermont Bar Association is part of its regular column, the ed in serving on low bono referral panels that coalition. The VBA’s role is to link Children’s Corner. in each probate division. The Vermont Bar crime victims with attorneys willing to rep- Submit yours to Association is presenting a CLE program resent them in legal matters outside the on the law and process of adult involuntary usual scope of services provided by Ver- [email protected]. guardianships at its mid-year meeting on mont Legal Aid, the South Royalton Legal The deadline for the Summer March 23, 2018 in South Burlington. The Clinic, Have Justice-Will travel, and other issue is June 1, 2018. presentation will be recorded for further partners. With its share of the grant, the training for lawyers interested in joining VBA pays private attorneys $60 per hour the guardianship low bono panels in coun- for up to 10 hours per case in a wide range ties in which they practice. More informa- of matters such as partition actions, visita- ciation and maintains a private practice in tion about the Mid-Year Meeting panels is tion and custody, property transfers, es- Rutland Town, Vermont. available at www.vba.myevent.com. Attor- tate planning, collections, stalking orders, ______neys can also contact VBA’s Legal Access boundary disputes and credit card fraud. 1 33 V.S.A. Sec. 5124. Coordinator Mary Ashcroft at mashcroft@ The VBA is recruiting attorneys for the 2 15A V.S.A. Sec. 9-101. 3 vtbar.org. for more information or to sign VOCA low bono panel. Attorneys are Vermont Judiciary Annual Statistical report for FY’16, page 8. https://www.vermontjudiciary. up for the local adult involuntary guardian- needed in all 14 counties and in all types of org/sites/default/files/documents/FY16%20Sta- ship low bono panel. cases. For more information or to sign up, tistical%20Report%20-%20FINAL%20020617_1. please contact the VBA’s Mary Ashcroft, pdf. 4 Id., page 6. Victims of Crime Act Project Esq., at [email protected]. 5 ______15 V.S. A. Sec. 3065(a)(1)(A). 6 15 V.S.A. Sec. 3065(b). In 2016, the Vermont Center for Crime Mary C. Ashcroft, Esq., is the Legal Ac- 7 15 V.S.A. Sec. 3065 (c). Victims Services knit together a coalition cess Coordinator at the Vermont Bar Asso-

www.vtbar.org THE VERMONT BAR JOURNAL • SPRING 2018 43 BOOK REVIEWS

emotions and experiences with the fiction- al character renders Sam a truly believable and lovable character. The reader glimpses life as a small-town, Vermont lawyer, deal- ing with high-profile cases, as well as low- profile cases, all while heavily immersed in a small, vibrant community. The novel balances seemingly basic les- sons on civil liberties and equality, which could be interpreted simultaneously as too simplistic but yet too heavy-handed, with higher-level refreshers for lawyers on old friends in the First Amendment world like the Tinker or BONG HiTS 4 JESUS lines of cases. Those of us who have visited high schools to speak about the Constitution, Uncivil Liberties and particularly the First Amendment, nev- What’s to Become of the By Bernie Lambek, Esq. er tire of discussion about the nuances of Legal Profession? Reviewed by Jennifer Emens-Butler, Esq. By Michael Trotter those cases. Even Constitutional scholars Reviewed by Joe Frank, Esq. can put aside the lesson and enjoy the en- Imagine my excitement and surprise to tertaining characters in a gripping whodun- receive an advance reader copy of a brand it that is set beautifully around such funda- This is the title of the self-published pa- new, first novel, from Montpelier lawyer, mental civic issues. perback written by Michael H. Trotter, a Bernie Lambek. As journal readers may Despite its fast pace and veiled simplic- 1962 graduate of Harvard Law School who recall, Attorney Lambek was the subject ity, Uncivil Liberties demonstrates so well most recently has practiced in a large firm of my first “Pursuits of Happiness” -inter how being true to the basic concept of located in Atlanta, Georgia. I offered to view, written after I discovered that the at- free speech can put you squarely on op- review this book because I had thought torney I knew as an excellent lawyer and posite sides of politics and popular opin- it daring to predict the future of the pro- adversary, was an accomplished ping-pong ion, while defending the Constitution. The fession when so much has changed since player. And now, I find, again by surprise, brief case descriptions intertwined with the I graduated from law school as an LL.B. in that the attorney I see enjoying Wilaiwan’s main characters’ social interactions in the 1959. lunch, almost daily, is also a published au- community, allows any reader to sympa- The author catalogs and discusses the thor of legal fiction. Of course, the photo thize with the main characters as they grap- myriad significant changes in the practice of the author on the back cover shows Ber- ple with some unpopular consequences of of law that have taken place since World nie at his regular luncheon hangout spot. protecting freedoms. War II. Some of these changes have What a treat to be able to set aside my Uncivil Liberties is worth the read. Ex- been conspicuous in Vermont. Advertis- electronic “stack” of nationally acclaimed plore hate-speech, equality, religious free- ing, which used to be severely restricted, legal thrillers and courtroom dramas to dom, community and the practice of law is now rampant in multiple media. The Uncivil Liberties read , by Bernie Lambek. in Vermont, all without getting bogged use of word-processing computers for the While I tend to riffle through legal thrillers down, and all while enjoying a fast-paced preparation and storage of documents has like bad TV --and they keep me returning legal mystery, cozy and familiar. been a revolution in the mechanics of prac- with their sensationalist twists and heavy Visit www.bernielambek.com to order your tice. Communication within and among action-- these novels tend to blend togeth- copy! law firms is commonly done via the -inter er as I search through my kindle struggling ______net. Photocopying is easy. The non-judi- to recall which legal thrillers I’ve already Jennifer Emens-Butler, Esq. is the Direc- cial resolution of disputes has expanded to read. tor of Education and Communication at the the extent that judicial resolution is seldom Uncivil Liberties immediately feels re- Vermont Bar Association. reached. The lateral movement of lawyers freshing, if alone because it is set in Mont- among law firms, and the reshuffling of law pelier. From the start, the feeling is al- most like being part of an inside joke, as the author drops plays on local names left and right, like the town of Riverbury to the North and Northwood to the south, or as WANTED: LEGAL FICTION the characters dine at the all too familiar Sacred Grounds Café or the Byway Diner Fancy yourself a fiction writer? The next Grisham? The- Ver on Route 302. The setting feels cozy and familiar, right down to the scene of the nov- mont Bar Journal is not just for scholarly legal dissertations! el’s focal death in Mahady park. Call it a fiction contest or an active solicitation for your works The main character, Sam Jacobson, em- of fiction, either way, if we love it, we may print it! Submit your ulates the author himself, which gives the character depth, and highlights some en- brief works of legal fiction (6,000 words or less) to jeb@vtbar. dearing self-deprecation. The combina- org. Our next deadline is June 1, 2018. tion of what can only be perceived as real

44 THE VERMONT BAR JOURNAL • SPRING 2018 www.vtbar.org Book Reviews firms, has become fairly common. er ways to sustain themselves and their This book is a readable review of the de- The author predicts that various social families---there are just too many of them velopment of law and the legal profession and economic factors will create a need now to be absorbed into the profession- since World War II and a thoughtful guess for many more lawyers in the future. These --and many may find better opportunities on future developments. Practicing law- factors are said to include (1) increased na- in other fields.” The apparent truth of this yers and potential lawyers will gain a per- tional and international economic and po- prediction is reflected in law school enroll- spective on our profession by reading it. litical activity, (2) growing bodies of law ments. The first-year enrollment in ABA- ______and regulations to manage this activity, (3) accredited law schools fell from 52,488 in Joseph E. Frank, Esq. is a retired attor- a large current unmet need for legal servic- the fall of 2010 to 37,058 in the fall of 2015. ney who was a founder of Paul, Frank & es, and (4) the inadequacy of automation With the yearly tuition at most law schools Collins in Burlington and Past President of to properly manage legal services. now reaching $50,000 or more, any college the Vermont Bar Association. The author’s prediction for the near fu- senior considering law school has to give ture is not as rosy (at page 141): “It is thoughtful consideration to the economics nonetheless likely over the near term that of the education and the prospects for use many law graduates will have to find oth- of the education.

IN MEMORIAM

John W. Barnett dent clinicians. He has received several Keith Thompson Aten awards from the Vermont Supreme Court John W. Barnett, 89, died peacefully at and from the Vermont Center for Crime Keith Thompson Aten, 58, chose to end his summer home on Swans Island, Maine Victim Services for his work with victims his life on January 11, 2018, leaving his on August 10, 2017. He was born in Ohio and children. A skilled and compassionate friends and family heartbroken by this final and served in the US Army at the tail end lawyer, a generous and engaged teacher of act that contradicted their knowledge of of World War II. He attended Harvard Law law and a loving father and friend, Alex is Keith as the joyful, witty and compassionate School and joined the New Haven law firm survived by his two young sons, Carter and man that they loved. Born in Geneva, NY, of Wiggin and Dana, where he was a part- Cole, their mother and his stepmother and he reunited with Geneva friend, Bonnie, ner for over 50 years. During that time, he brother. when he lived in Boston and the two was married to Elizabeth Sargent for over married in 1986 and moved to Vermont. 50 years, who died in 2001. He was very After an early career as a Vermont State active in the North Haven community and Albert A. “Al” Raphael social worker, Keith’s interest in social town government. In 2008, John married justice led him to VLS where he received Elizabeth Mills and moved to Westminster Albert A. “Al” Raphael, Jr., 92, formerly his JD in 1993. He and his friends formed West, Vermont, where he joined the VBA, of Waitsfield, Vt., passed away on January Aten, Clayton & Eaton, PLLC in Littleton, served on the board of Senior Solutions 2, 2018 at North Andover, MA. Al graduat- NH (jokingly referring to the firm as “ACE”) and the Westminster Town Planning Board ed from Phillips Andover Academy in 1942, where he practiced as a trial attorney for and did pro bono legal work for non-prof- Yale University in 1945 and Harvard Law over 20 years. Keith enjoyed the outdoors its and members of the community. He en- School in 1950, where he was a member of and traveling with his family, and had joyed tennis, travel, photography, reading the winning Harvard Law School moot court donated over 140 pints of blood in his life. and baseball. He is survived by his wife, competition team. He served in World Despite outward appearances, this last three children and their families, one step- War II in the US Army, seeing combat in year brought on a severe depression that son, and nine grandchildren. France and Germany. Al practiced law for he was unable to overcome. He is survived 50 years, specializing in real estate, first in by his wife, Bonnie, and their two sons. New York City and then in Waitsfield, as a Alexander W. Banks solo and as a partner at Raphael and Ware with Sheila Ware. He retired in 2000. He is Timothy J. O’Connor, Jr. Alexander W. Banks, died on December predeceased by his wife of 46 years, Dor- 18, 2017 after a spell of illness at the age othy, whom he met skiing and with whom Timothy J. O’Connor, Jr., the first of 56. Born in Pennsylvania, Banks attend- they followed their passion for skiing and modern Democrat to be elected speaker ed Bates College and received his JD from Vermont, eventually moving here in 1972. of the Vermont House of Representatives, the Vermont Law School in 1987. A lifelong Mr. Raphael served the Town of Waitsfield died on January 16, 2018 at the age of 81. Quaker, Alex demonstrated a heartfelt in- in many capacities, and the Valley Rotary He was born in Brattleboro, graduated terest in helping those less fortunate. From Club and enjoyed skiing for over 65 years. from the College of the Holy Cross in 1987-1995, he served at Northwest Legal He is survived by his son, Bruce, a partner Worcester, MA and Georgetown University Services in PA, and then went on to teach in the international law firm Jones Day, his Law Center in DC, in 1961 (the same year and serve as staff attorney at the VLS South daughter-in-law and twin grandchildren of he attended JFK’s inauguration). In 1961, Royalton Legal Clinic from 1995-2017, Andover, MA. he married Martha Elizabeth Hannum of where he advocated for victims of domes- Putney, with whom he celebrated their 56th tic violence and children. He designed and wedding anniversary last year. O’Connor implemented the clinic’s Children First! le- was admitted to the bar in 1961 and gal advocacy program, mentoring its stu- worked as an attorney for half a century www.vtbar.org THE VERMONT BAR JOURNAL • SPRING 2018 45 and as municipal court judge until his children. Paulina died in 1989, and John conflict resolution his whole life. Scotch retirement in 2011. He was first elected married Erika Geir Emmons in 1993, who was also a founding member of the Onion to the State House of Representatives rescued John from deep grief. Erika River Arts Council and performed a radio in 1968, was elected as speaker in 1975, predeceased him in 2015. John is survived commentary “That’s the Way I See it” on In Memoriam despite a slight majority of the opposing by his seven children and their families, WNCS for many years. He is survived by party and was reelected in 1977 and 1979 many wonderful grandchildren and great- his wife of 54 years, Barbara, 2 daughters, before leaving the Legislature in 1980. grandchildren, five step-children, a brother a son, a sister and a granddaughter. O’Connor served as the Brattleboro town and sister, and is predeceased by one moderator for over two decades. He is brother. survived by his wife, a son, two daughters, Michael P. Harty three grandchildren and his brother. Benson D. Scotch Michael P. Harty, 68, of Bellows Falls, passed away unexpectedly on February L. John “Coach” Cain Benson D. Scotch, died on January 29, 11, 2018. Harty was born in Bellows 2018 after a brief illness at the age of 83. Falls, graduated from UVM and from the L. John “Coach” Cain, 92, peacefully Born in Elizabeth, New Jersey, Scotch Western New England School of Law. He and quietly passed away in the presence received his BA from Yale University, served worked as a teacher for 14 years at the of his family on January 19, 2018. John in the Army for two years as a writer for Green Mountain High School, served as was a Burlington resident for over 65 the recruiter service and graduated from Deputy States Attorney and retired from years, having attended Cathedral High Harvard Law School in 1961. Scotch private practice approximately 6 years School and the University of Vermont. He practiced law in New York and Zurich ago. Michael served as town moderator graduated from Boston College Law School before serving as an assistant AG in for many years, was a lister for the Town in 1950 and was a World War II combat Vermont commencing in 1972. There, he of Rockingham for 6 years and served one veteran. John was politically active and was instrumental in defending the Vermont term in the State House of Representatives. served as Burlington Alderman, Chairman Container Deposit Law. Scotch served Michael was known to be an outstanding of the Burlington Airport Commission, from 1981-1985 on Leahy’s Constitution citizen, committed to the greater Bellows City Representative and State Senator. He Subcommittee of the Senate Judiciary Falls communities, in law and education. He was in private practice until 1973, when Committee in DC and then returned to is survived by his wife of 43 years, Wendy, he became Probate Judge in Chittenden Montpelier as the chief staff attorney two children, his mother, his brothers and County. He was a member of the ABA of the Vermont Supreme Court for 15 grandchildren. and VBA as well as the Ethan Allen and years. Before retiring, Scotch served as Burlington Country Clubs. John and his the executive director of the ACLU for 3 first wife, Paulina Woodbury Powers were years. He was an activist and advocate married in 1948, and had seven wonderful for free speech, civil rights and peaceful

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es Available. Locally based, 20 years ex- be required by the terms of the settlement SERVICES perience. Serious inquiries only. Asset lo- agreement or the court’s final order. cates, people locates, criminal investiga- I handle all initial contacts with the plan BRIEFS & MEMORANDA. tions. 802/253-8381 Gary Small: vermont- or third party administrator and provide all Experienced attorney writes appellate [email protected] / Christina Sultan: csul- necessary processing directions when the briefs, trial memoranda. Legal writing/ap- [email protected] order is ready for filing. pellate advocacy professor; author of four Vermont family law attorney since 1986. books. VT attorney since 1992. $60 per QDROs (qualified domestic Contact me for additional information and hour. Brian Porto, 674-9505. relations orders) preparation rates. I prepare QDROs and other retirement Tom Peairs, 1-802-498-4751. PRIVATE INVESTIGATION AND DETEC- pay and pension benefit domestic relations [email protected] TIVE SERVICES orders for federal, state, municipal, mili- www.vtqdro.com Private Investigation and Detective Servic- tary and private retirement plans as may

46 THE VERMONT BAR JOURNAL • SPRING 2018 www.vtbar.org