The Constitutional Opinions of the Attorney General of Vermont

Home , Beth Robinson, Daniel Buck, Horace Fairbanks, Josiah Grout, Madeleine Kunin, Paul Reiber

FALL 2019 • VOL. 45, NO. 3 VERMONT BAR JOURNAL

DEPARTMENTS PRESIDENT’S COLUMN 5 — Listen to be Heard 6 — An Interview with Incoming President Beth Novotny

PURSUITS OF HAPPINESS 12 — From Sword to Pen

RUMINATIONS 16 — The Constitutional Opinions of the Attorney General of Vermont

WRITE ON 24 — Keepers of the Flame “Smittybrook Farm WHAT’S NEW Georgia, Vermont” 28 — VBA Annual Report 2018-2019 by Lisa M. Maxfield 31 — 2018-2019 Sections & Divisions Annual Report

BE WELL 37 — Lower Your Stress, Increase Your Resiliency

52 BOOK REVIEWS

54 IN MEMORIAM

54 CLASSIFIEDS

FEATURES 39 VBF Grantee Spotlight: NewStory Center Teri Corsones, Esq.

41 The Decision to Hire Contract Attorneys Should Never Be Just About the Money Mark Bassingthwaighte, Esq.

43 Vermont Poverty Law Fellowship Update: Mental Health and Housing Jill Rudge, Esq.

44 Access to Justice Campaign

47 Mediation - Evolving Methods Michael J. LeVangie, Esq.

50 The NBAification of Biglaw and Can Lawyers Learn Anything from Warren Buffett and Leonardo da Vinci? Joseph Ronan, Esq.

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4 THE VERMONT BAR JOURNAL • FALL 2019 www.vtbar.org by Gary Franklin, Esq. PRESIDENT’S COLUMN Listen to be Heard

As lawyers, we are trained to be zeal- sion, we want to be sure that these services ous advocates, which too often translates are sufficiently promoted and well known into a competition of whose plumage is the throughout the State. After brief introduc- brightest and attracts the most attention. tions, we opened the floor inviting those in But, as the old adage goes, God gave us attendance to share their concerns, ques- two ears and one mouth for a reason. To be tions and observations. While often a small an effective mouthpiece, you also need to gathering, participants were involved and be a good listener. seemed to genuinely appreciate the effort Listening, however, is more than just to visit with them. Discussions were typi- hearing. It is an intentional and active ex- cally robust, frank and respectful. ercise to better understand and connect The more common topics raised and dis- to what is being said. In this age of com- cussed included: the juvenile docket, re- munication, we risk losing meaningful con- storative justice, the aging of the bar, drug nections under the monumental weight of treatment courts, the impact of the opioid noise streaming across a circus of devices. crises, the shortage of lawyers (particularly To combat this modern phenomenon, in more rural areas), challenges to judicial and better understand where we as lawyers resources and court management, land- can most effectively add value to the so- lord/tenant concerns, and expungements. cial fabric of our communities, Chief Justice So what did we learn? Do more listening! Paul Reiber and I embarked on a Listening It is often that gift of being heard that reso- Tour. Over the last year, he and I, along nates the deepest. with the VBA’s executive director Teri Cor- While concrete action items are not easy sones, traveled to each county in the State to come by, it became clear how impor- to personally meet with the local bar, local tant it is to provide a platform for inter- legislators, interested stakeholders in the actions between not only the bench and legal system such as those involved with the bar, but between lawyers and legisla- restorative justice, and occasionally mem- tors, various service providers, and mem- By providing an effective platform of en- bers of the public. Also present were the bers of the general public. Indeed, public gagement, lawyers have the opportunity to local presiding judge and county bar presi- outreach has been an important initiative work beyond the confines of their practice dent. We had no agenda other than to lis- of the VBA. The legal profession is faced and to participate in meaningful activities ten and actively demonstrate our interest with complex issues such as the disconnect that highlight our profession, and the VBA in each community we visited. between lawyers and self-represented liti- fulfills its core function to promote legal While it turns out that not everyone is gants, social issues being presented in a le- services and the rule of law. clamoring for the opportunity to meet with gal system not designed to resolve them, us, the meetings proved to be an effective the decline of rural services, the siloing of forum for sharing experiences and ideas. practice areas, and the need to attract tal- To make folks comfortable, we deliberate- ented young lawyers. ly avoided courthouses and instead met in community venues. Highlights included kicking off the Tour in the Town Hall The- ater in Middlebury, gathering in the histor- ic Old Labor Hall in Barre, pulling our chairs into an intimate circle in the Lunenburg Town Hall in the dark dead of winter, feeling the grandeur of the St. Jay Athenaeum – a gathering place for those seeking wisdom, and visiting various museums, libraries, and town halls. Crisscrossing the State offered a time to reflect on how the Bar is more than just a trade association. It is a community of respected, energized and selfless citizens – more role models than loudmouths. At each stop, we passed out a list of pro bono and low bono programs as well as the ubiquitous green cards for the Ver- mont Lawyer Referral Service and other legal services that are found in every court house. In line with our access to justice mis- www.vtbar.org THE VERMONT BAR JOURNAL • FALL 2019 5 An Interview with Incoming VBA President Elizabeth Novotny

TMC: It’s September 4, 2019, and I’m EN: Currently I’m general counsel to the meeting with VBA Board President-Elect Mosaic Learning Center and I’ve been in Elizabeth (Beth) Novotny. Beth, on behalf of that role since 2012. Before that, I was a Vermont Bar Journal readers everywhere, clerk to the Vermont Department of State’s thank you for taking time to meet with me Attorneys and Sheriffs, a prosecutor with today. the Chittenden County State Attorney’s Of- EN: It’s my pleasure and thanks for taking fice, an attorney at Perry and Schmucker (a the time to ask these questions. general practice law firm), General Counsel to the Vermont Department of Public Safe- TMC: First, can you tell us a bit about ty, and Assistant General Counsel to the your background. Where did you grow up Department of Financial Regulation. and where did you go to school? EN: I was lucky to grow up in VT be- TMC: That is a real variety! Did you have cause I almost grew up in Canada. My par- the benefit of a mentor when you were first ents wanted to live where they could enjoy starting out? the outdoors so after my father got his PhD EN: My mentor is a retired Vermont At- they began looking for jobs in places that torney-- Charlie Tetzlaff. Charlie has been in suited their interests. One of those places my life since I was in elementary school. He was Saskatoon, Canada, which my father was a JAG attorney, prosecutor in Chitten- perceived to be the duck hunting capitol of den County, partner in a general practice the world. When my father came to Burling- firm in Burlington, U.S. Attorney for Ver- rence was honest. Even though Kevin was ton for his interview at UVM he knew imme- mont and General Counsel to the U.S. Sen- young and new and even though Lawrence diately that our family would love Vermont. tencing Commission. He was well regarded was a legend, Kevin smelled a rat and con- as a skilled and effective attorney. fided his concerns to another officer. They TMC: How old were you then? Charlie embodied fairness, integrity, and took their concerns to BPD supervisors and EN: We all moved here when I was about compassion. His decision making wasn’t to the then Chittenden County State’s At- 7. Dad went to work at UVM and my mom emotionally reactive – it was firmly ground- torney Patrick Leahy. They undertook an held various jobs. She eventually got inter- ed in the fair and just application of the law. undercover operation that culminated in ested in politics becoming the first woman He taught me how to think. He also put me Lawrence’s arrest. The people Lawrence ar- elected to the Burlington City Council and through my paces by playing devil’s advo- rested who were wrongly convicted even- the first Democrat from her ward. After I cate to any opinion I offered so I was an ear- tually were pardoned – a story of both jus- graduated from Burlington High School ly student of the Socratic method. The one tice served and justice corrupted. Kevin’s and UVM I went to Suffolk Law School in piece of advice he gave me before I started actions taught me never to be complacent Boston. I graduated from Suffolk Law in my first legal job was succinct because it re- about a claim of innocence, and to have the 1987, returned home to VT and have been quired no explanation: “Always remember courage to act in defense of justice even practicing law in Vermont for over 30 years. your word is your bond.” when doing so might not be popular.

TMC: What led you to consider law TMC: Great advice no matter the profes- TMC: That’s an incredible story. Is there school as a path? sion! one case in your own career that stands EN: Watergate. I was inspired by witness- EN: Yes! I’d like to talk about another out, that you consider the most significant ing one branch of government hold anoth- attorney who mentored me briefly but re- to you personally? er branch, namely the President, account- mains a role model. Kevin Bradley was the EN: That’s a tough question. I have pas- able. To me, it was remarkable to observe State’s Attorney in Chittenden County who sion for justice in all its forms and have been the Constitution in action. hired me, and he was a police officer at the lucky to meet many people who taught me Burlington Police Department before he a lot personally and professionally. One TMC:: Did you consider practicing any- became a lawyer. In his first year at BPD case that comes readily to mind is a case I where else besides Vermont? Kevin worked as an undercover cop in drug had as a prosecutor. It was a horrific assault. EN: Yes. After I graduated law school, I investigations. He was assigned to work A young gay man –I’ll call him Pete—was re- resolved to make may own way in Massa- with the legendary drug investigator Offi- peatedly kicked in the head by a man who chusetts. But during one of my drives back cer Paul Lawrence. Lawrence had worked had just been released from prison. I’ll call from a visit to VT I had a moment of clar- all over Vermont and had an impressive this man Monte. The police arrested Mon- ity. I finally acknowledged that I was going arrest and seizure rate, so Kevin was ex- te and seized his steel toe work-boots. The to VT on the weekends to enjoy all that VT cited to learn from him. Lawrence would boots were hard to look at because they offered and all that I loved. So, I swallowed send Kevin into a bar to make a drug buy were saturated inside and out with Pete’s my false pride and signed up for the VT bar, and Kevin would come out empty handed. blood. The assault took place outside of a passed the exam and started my 6-month Then Lawrence would go into the bar and gay bar in Burlington and Monte admitted clerkship. It’s the best decision I ever made. come out with drugs he claimed he bought he went to the bar looking to beat up a gay in the bar. At first Kevin thought he lacked man (he actually used an offensive word for TMC: What law jobs have you had during the right skillset but as this pattern contin- “gay man”). I could not charge Monte with your career so far? ued, he started to question whether Law- a hate crime because Vermont didn’t have

6 THE VERMONT BAR JOURNAL • FALL 2019 www.vtbar.org

that crime in the books then. I asked for the of an unsatisfactory outcome. Pete’s deci- and commitment of the teachers and clini- case because homophobia was alive and sion to face Monte without guarantee of cians, combined with the culture they main- well and I wanted to ensure that Pete, as a the outcome was incredibly courageous. tain, is amazing and effective. I’m privileged victim and as a gay man, was treated with Fortunately, and to my surprise, Pete re- to witness real change in our students, their dignity throughout the process—assuming ported that the conversation with Monte families and ultimately their experience at he even survived the assault. The defendant brought some measure of healing. Monte home. So, I get a front row seat observ- was eventually convicted and went to jail. had been through intense therapy and was ing success in special education and that’s Pete survived but as a result of the perma- able to share his deep remorse, followed a gift. It also motivates me to protect their nent brain injury he sustained his personal- by what he learned about himself and how interests at the legislature and with govern- ity was altered and he had serious memo- he’d changed. By all accounts, Monte was ment agencies.

Interview with Elizabeth Novotny ry issues. He recalled enough to know he genuinely contrite and a different person. woke up a different person, though. It was What ended up sticking with me the most is TMC: Speaking of the Legislature, I know gut wrenching watching Pete grieve the not what I expected: Monte found redemp- I see you frequently at the statehouse. loss of himself and try to adjust to a new tion. And Pete demonstrated an impressive EN: Yes, I’m there during the session be- normal. This case became the catalyst for capacity for compassion toward a man who cause I’m also the government relations passage of Vermont’s hate crime law. showed him none. representative for the Vermont Police Asso- ciation and the Vermont Association of As- TMC: What a significant case to have TMC: I can see why the case was so mem- sistant Judges. The most interesting part of been involved in. orable. What do you find most interesting my job as a lobbyist is to ensure that the cli- EN: There’s actually another reason the about your work, currently? And what do ent’s policy objectives are met by develop- case stands out for me. When he was in pris- you find the most challenging? ing an effective strategy for meeting those on, Monte reached out through his attorney EN: I love everything I’m currently doing. goals. My approach is to understand the to meet with Pete. Pete declined because In my capacity as General Counsel for the goals and motives of those proposing leg- he suspected that Monte’s motivation for Mosaic Learning Center I see a variety of islation, rules or policy and, if possible, find the meeting was early release through an legal issues so it’s never boring. What I val- a way to meet their objectives in a manner upcoming parole hearing and Pete wasn’t ue the most is being able to contribute and that also works for the client. emotionally ready to face Monte. Some- support the client’s mission. The Mosaic time later, though, there was another re- Learning Center is an independent school TMC: I know that you also regularly vol- quest for a meeting and this time Pete was for students with neurological differences unteer on different boards and committees. ready to meet with Monte. In my prosecu- who have intensive special needs. It part- First, thank you for your service in that re- torial career I seldom heard sincere apolo- ners with the public schools by providing an gard! Second, what would you recommend gies from defendants, so I was worried that appropriate education placement for the to new lawyers in terms of volunteer oppor- Pete would be re-traumatized. I spent time students in Vermont. The staff and students tunities for them? with Pete preparing him for the possibility inspire me beyond measure. The quality EN: I know it’s a challenge for new attor-

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terests in the forefront of everything you all ography many times for inspiration. Dur- do at the VBA. ing the Watergate hearings, I watched her deliver a speech that moved me then and TMC: Thank you. We always try to do our now. My favorite part of that speech is this: best! What has been the most satisfying part about serving on the Board so far? “We, the people.” It’s a very elo- EN: Building relationships and preserving quent beginning. But when that doc- the quality of the VBA. I think our members ument was completed on the seven- are amazing and I’m so proud of their dedi- teenth of September in 1787, I was cation to the profession and their clients. It not included in that “We, the people.”

Interview with Elizabeth Novotny truly is a privilege to work on their behalf. I felt somehow for many years that George Washington and Alexander TMC: Has there been a least satisfying Hamilton just left me out by mistake. part? But through the process of amend- EN: Yes, and then ultimately No. There ment, interpretation, and court de- are moments of discomfort or difficulty in cision, I have finally been included in all aspects of our lives. I’ve certainly expe- “We, the people.” Today I am an in- rienced frustration about various issues or quisitor. I believe hyperbole would not problems but that usually falls away when I be fictional and would not overstate focus my energy on identifying the oppor- the solemnness that I feel right now. tunity presented by that problem and then My faith in the Constitution is whole; leverage at least one positive outcome. So, it is complete; it is total. And I am not in the end nothing truly remains unsatisfy- going to sit here and be an idle spec- ing. tator to the diminution, the subver- sion, the destruction, of the Constitu- TMC: Sometimes VBA Board presidents tion.” have a focus or theme for their year in office. Do you have a particular focus in mind That speech meant so much to me be- for your upcoming year in office? cause Representative Jordan was black, EN: Yes, there are two important issues and I understood the significance of her re- I would like to focus on. First, I’ll continue marks in light of her race. Despite having to support the VBA’s ongoing efforts to re- suffered under Jim Crow laws, Representa- spond to the demographic changes in VT. tive Jordan was defending and upholding We need to ensure adequate access and a Constitution that once failed to protect delivery of legal services in VT, especially in her, and generations of people of color in rural VT, as we face a decline in the number America. For me, that speech is my North neys to find time but if they can find some of incoming lawyers nationwide. Second, Star. modicum of time, I highly recommend ser- I’d like to work on improving the status of vice to their community or the profession. lawyers in Vermont in addition to promot- TMC: I’m sure that Representative Jor- Service in any capacity yields back tremen- ing the importance of the rule of law and an dan would be proud of how she inspired dous personal and professional growth and independent and robust judicial system. In you, Beth. Along those lines, what advice satisfaction. The challenge for me is balanc- 2018 Rasmussen took a poll on the public’s would you give to a young person thinking ing my work, my service as a board member perception of lawyers. And the results are about law as a profession? to four organizations, my responsibilities as troubling—as a profession we have about EN: I don’t have any canned advice in a Chair of a Hearing Panel for the Profes- a 29% approval rating on whether we are mind. The advice I’ve given always depends sional Responsibility Board and my family. trustworthy. I think we need to change the upon the person asking. If I had general ad- narrative on all fronts. vice it would be to consider everything the TMC: Speaking of volunteer board ser- legal profession offers since there is more vice, when did you become interested in TMC: Both very laudable goals. Beth, to the profession than private practice. serving on the VBA Board? what’s your favorite past time when you’re EN: Around perhaps 2011, Bob Paolini, not working? TMC: Last question: What would you like the VBA’s former Executive Director, talked EN: I have many interests, so I’ll just to be remembered for, as the 140th presi- to me about the role of a VBA Board mem- name a few. I love being with my family and dent of the Vermont Bar Association? ber and it seemed like an interesting way to friends. I also enjoy working out, outdoor EN: I really haven’t thought about my start giving back to our profession. activities, puttering around the house and year in terms of how I will be remembered. fixing what needs to be mended. But when I have thought about my year in terms of TMC: What did you think it was going to I really need to relax, I love to create and how I can contribute and be of service to be like, what did it turn out to be, and how cook a meal for my family and friends. the VBA and its members. If I had to be re- do the two compare? membered it would be that I showed up EN: I had no expectations, only a de- TMC: I’ve heard great things about your with integrity, dedication, and purpose. sire to serve. I’m privileged to have worked culinary skills! Do you have a favorite law- with some committed and forward-thinking related or justice-related quote? TMC: I can certainly attest to your show- lawyers and for an organization that truly EN: I do. This quote and the person who ing up in exactly those ways. Thank you for serves and focuses on its members. And I spoke these words, inspired me to be a law- your willingness to serve, and we all look appreciate the dedication of the VBA staff. yer. forward to a productive year! I wish all of our members knew just how Representative Barbara Jordan from Tex- much you and your staff have their best in- as is a hero of mine and I’ve read her bi-

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PURSUITS OF HAPPINESS From Sword to Pen - An Interview with Jim Knapp

JEB: I am in Williston at the office of First American Title with Jim Knapp, First Ameri- can Title State Counsel and I’m here to interview Jim for our Pursuits of Happiness column where we talk about members’ interests and talents outside of the practice of law. And you, Jim, have many! Jim Knapp: Well, I do have an eclectic collection of things I like to do.

JEB: Yes, this collection struck me as even more interesting because of how much time you devote to the bar association and extracurricular law-related pursuits, presentations, articles, title standards, keeping up on the latest tech, serving on committees, assisting with legislation and helping anyone who has title questions. So, with all that time commitment, that’s what I thought you did for fun- - being a real estate and cyber geek who enjoys helping people in the legal field! JK: Because there were older lawyers who helped me when I got started, I always felt it was the obligation to answer questions for anybody if I could. And I enjoy the pursuit of a difficult question. So I always fencer. The first one was when I was in col- no idea how the referees keep all of its tell people, ‘I’m not sure when I’m going to lege at the University of Maine, at Orono. straight. figure out the answer to your question-- it They had a relatively good fencing club. And the second is epée, where the en- may be years from now-- but I will call you Our club was one of the first clubs ever in- tire body is the target from the tip of the with an answer at some point in the future.’ vited to fence in the New England region- toe to the top of the head, except for the al tournaments to compete against schools back of the head, which isn’t covered by JEB: Have you ever called somebody like Harvard and Yale who’ve had fencing the mask and there are far fewer rules in back a year later with an answer? teams since the 1800’s. epée. You just get points for touching JK: I don’t think I got quite a year. I’ve somebody where in fact both fencers can called back several months after someone JEB: So you competed all through your score points simultaneously. It’s called the asked me the question and of course the college career? double touch. And many bouts are decid- answer wasn’t relevant anymore, but I did JK: Well the end of my sophomore year ed on the basis of one or two points be- finally figure out the answer. through senior year. cause many of the touches will be doubled.

JEB: Because you cannot leave a ques- JEB: Tell the readers a little bit about JEB: There must be high scores then. tion unanswered, and there are a lot of competitive fencing. I assume all blades JK: Not really, first bouts are three min- quirky things in real estate! are dull? utes to five points. In the middle rounds it’s JK: Yeah. Vermont has a reputation for JK: Yes dull and/or electronic where they six minutes to 10 points. And in the finals having some real quirks in their real estate have a little switch on the end so you can it’s always a 15 points in nine minutes. practice. I mean, it keeps you very busy. tell when you hit the opponent. And there That is what makes it fun. are three weapons. There’s the foil, which is JEB: Oh that’s a lot less than I thought. the lightest of the three. The target is just I suppose some people are very good at JEB: So back in the day before your cur- the torso. So from the seams of the jack- avoiding getting hit. rent pursuit of happiness, which we will get et in and down to your legs. And foil fenc- JK: Yes, you have two skills, you either to, my understanding is what you did a lot ing has a peculiar set of rules called ‘right are very good at hitting your opponent or in your spare time was fencing. Is that cor- of way.’ you’re very good at avoiding being hit. rect? JK: It is indeed. JEB: Oh! I knew there was a real estate JEB: Like my son who was the latter connection! in TaeKwonDo because he’d just sneak JEB: Now is this competitive fencing or JK: Ah, yes. So at any given point only around and wait for them to make a move just go to the gym and find someone else one fencer can score a point. And before and then duck or something. who likes fencing? you score you have to take the right of way JK: Like that but in fencing it is a little JK: Actually, there were two time pe- away from your opponent. The point scor- bit of a challenge because it’s fenced on a riods in my life when I was a competitive ing depends on so many factors. I have one and a half or two-meter wide strip, so

12 THE VERMONT BAR JOURNAL • FALL 2019 www.vtbar.org you don’t get much horizontal movement. So, after college? Pursuits of Happiness Fencing is a combination of physical abil- JK: I didn’t have time in law school. Plus, ity, which has never been my skillset, and Syracuse didn’t have a real big fencing pro- tactics, patience and reading the situation gram. Interestingly, however, I went to law which I am better at. You get to under- school with the fencer who beat me five, stand when, for example, an opponent re- zero in 37 seconds and he remembered peats the same attack over and over again, me. you know how to counter it. And finally, the third weapon is a saber JEB: Funny! So when did you pick it up and that’s an edge weapon, not a tip weap- again? on. So you score with the edge and the tar- JK: We’re going to fast forward this 30 get is anything from the waist seam of the plus years. I’m in Vermont and my son real- jacket up. ly needed an activity outside of high school and one day when he was rummaging in JEB: The edge meaning like instead of the closet, he found my collegiate fenc- stabbing or poking somebody it emulates ing gear. He decided it looked cool and chopping off their head or arms in a swip- he wanted to learn to fence, to which I re- ing motion? sponded, ‘probably not in Vermont.’ But, JK: Yes, and typically in competitive lev- little did I know that the University of Ver- els in saber, it’s a point or an edge some- mont had both a fencing club for universi- where along the forearm because of course ty students and a club for members of the that’s the piece that’s closest to you. community who would practice together at UVM. JEB: And, like in Monte Python you just There was this coach who was one of start chopping off of limbs and then in the- those personalities who, as soon as you ory your rival is rendered useless! walk into his orbit, he simply sucks you in. JK: Well, we don’t usually do that in I brought my son and the coach asked why competitive.... it was something he wanted to do? And he said, well, my dad fenced in college and JEB: [laughs] Just saying the hand would it looks fun. He was satisfied but then he be a very valuable piece to lose, right, looked at me and he said, well, get out thinking about the origins of the sport? here. I said, ‘no, I’m 50 plus years old. That JK: Yes indeed! So, you can summarize was a long time ago.’ He didn’t seem to the sense of how fencing is done with this care, and he in fact resurrected my fencing really short phrase: foil fencers argue about career with persuasion. the rules; epée fencers test the edges of the rules and saber fencers say, ‘there are JEB: Secretly, you really wanted to do it, rules?!’ right? JK: I did. You hit the nail on the head. It JEB: Knowing you then, loving rules of was a great time fencing with them. And law and rights of way analyses, I’d guess so my oldest son and our middle son both your favorite is foil? took up fencing and because of the limit- JK: Actually no, mine is epée! You are ed number of fencers in Vermont, we were right in college my favorite was initially foil, all expected to compete, and we com- but in order to compete we had to have peted together. In a good tournament in all three weapons and we needed at least Vermont, you would have somewhere be- two fencers in all three weapons. Other- tween 30 and 50 competitors though. wise you had to forfeit the bout. It turned out that I was among the taller of the can- JEB: Did you win competitions? didates, which is important in epée fenc- JK: No, but with good reason. Both of ing. And I was patient, which is a trait my sons and I competed and I can’t tell if among epée fencers who can spend a large they worked out the brackets or if it hap- amount of the bout staring at each other pened to be simply by chance, but I would from just out of the distance where you can always meet one of my sons before going score a touch waiting to see who’s going into the medal round. to blink first. And so I was delegated to be the first position epée fencer. Which is a bit JEB: So you let them win? of a challenge if you’re going up against a JK: No, I never let them win. I always fencer from Harvard who’s been fencing for lost by a close score going into the med- 12-15 years and you’ve been doing it for al round. seven weeks! JEB: Because they are younger and they JEB: Did you win that one? have your skill? JK: I did not. The score in that bout was JK: I will tell you that six minutes up five to zero in 37 seconds. against the high school or college age student for a guy who’s 50 plus years old is a JEB: Oh, ouch. Yes. But you continued. hard and tiring six minutes! www.vtbar.org THE VERMONT BAR JOURNAL • FALL 2019 1 3 snob. I have chosen the pens that I use very we can make our own fittings, although we carefully. They have not always been the have been experimenting with aluminum. most expensive of pens, but I have always looked to use the best pen. And for years JEB: Wow. I have in my hand, one of your I used a fountain pen because the fountain original older pens, and it’s very heavy. pen is, is a wonderful tool because it forces JK: Yes, the first ones used brass. But you to write slowly, which means you can brass fittings are heavy. They are a roll- Pursuits of Happiness think as you compose. er ball type with a screw on top. Now we make the cross-style pens where you twist JEB: I never thought of it that way, you the two halves and the tip comes out. We mean fountain pens with cartridges or you made some click pens too, but you have to actually dipped in ink? find a good clicker kit. JK: I usually did the cartridges because the dip pen was too hard to keep all of the JEB: Because you’d worry you spent all pieces together and not make them mess. that, all that effort and time to replace the But I really did enjoy using them and I did innards. find that when you write with a fountain JK: More importantly, once you put a pen and bear in mind, I started practicing click pen together, you can’t take the in- well before there were word processors or nards out. And so once the clicker stops anything else, it’s more deliberate and it al- working, the pen becomes an art piece but lows you to think. not or usable. But these older ones you could replace all the pieces. JEB: I think I’d be frustrated forgetting what I was going to say by the time I wrote JEB: I see now you use different metals it all out. and materials. JK: I don’t find that to be a problem. But JK: Yes, a lighter metal. And we did I always liked nice pens, but nice pens are wood for a while and then we decided to very expensive. One day my youngest son branch into the acrylics While the wood- (not a fencer) started talking about mak- grain to me is, is fascinating, they do make ing pens. And I’ve always wanted to do it some awfully pretty acrylics in colors and but couldn’t commit to buying equipment patterns. and figuring it all out. It’s not like you can go to school to learn how to make a pen. JEB: So is this a business or hobby? There’s no pen making school in Vermont. JK: Well I suppose we could sell them, But we learned the way everyone learns ev- but we seem to always give them away. In erything today from YouTube. fact, starting in 2016, the first full year af- JEB: Just six minutes. Is it that difficult? So one day we decided that we would ter we were making pens, my son decid- JK: It depends on the weapon you go and just look at the equipment, which ed that he would make a pen for everyone choose and how you choose to fence that of course means, we drove down to Salem, at his company for Christmas. So, over the weapon, it can be very intense and physi- New Hampshire and came back with about course of five and a half weeks we made cally demanding. In the initial round, you’d $700 worth of equipment. 42 pens. fence four or five other people to determine where you fit in the brackets. And JEB: Wood turning equipment? JEB: Wow, that’s a lot of pens. Wood or then you would fence through the brackets JK: Yes. Turns anything up to about 18 acrylic? until you were eliminated which would take inches. Pens. Wands. Table legs. And so we JK: Both. We probably, between the a full day. And saber is absolutely physical started making pens, learning from scratch, three of us, myself and two of my sons, compared to the others. experimenting with various things and we’ve probably made somewhere between broke a lot of stuff. We made Harry Potter 300 and 400 pens. JEB: So you no longer fence? wands too. JK: No, I continued for about 8 years at JEB: Impressive. Now I have a Jim which point my then more than 50-year-old JEB: I assume a wand or hollow pen Knapp original. But it doesn’t have your elbow wouldn’t let me play. Basically, my would be easy to break as you are learning. initials on it. Have you considered marking doctor said you have two choices, you can The hollow for making a pen must be hard. your creations? keep going and that elbow will never heal, JK: Not after you learn. You have a block JK: We don’t typically. We found a way or you can stop now and there’s about a of wood that you buy it or find (actually to laser engrave the wood but I don’t do 50, 50 chance your elbow will come back. some of the prettiest pens I’ve made are it with every pen. It’s actually quite a bit of I stopped and it did heal but I’m a little bit wood that I picked up either walking along work to get everything to line up and to do afraid of that and I’ve had some problems the seashore or along Lake Champlain). what you want it to do. And it takes away with an ankle after rolling it in a tourna- the wood grain or pattern. ment. JEB: And that makes it more special. JK: Right. And so you have a block of JEB: And that’s what makes them so JEB: Now that your elbow, your ankle wood that you cut to the length of what’s beautiful. So no sales then? and your age no longer permit you to con- ultimately going to be the pen, drill a hole JK: We sold a few pens to people, but tinue to fence competitively, you took up in the center, put tubes in the center and it really is a hobby not a business; I prefer another sharp instrument: pens! How did then you turn the wood into the shape you simply giving them away. the pen-making start? want. You have to buy the metal fittings. JK: For my entire life, I have been a pen We haven’t quite gotten to the point where

14 THE VERMONT BAR JOURNAL • FALL 2019 www.vtbar.org JEB: We were at lunch recently where ries, hotels and multifamily housing, and Pursuits of Happiness you left a note for the very nice waitstaff you could in fact drive around the Northern and I asked what you were doing as you part of Vermont and I could say this or that didn’t leave your name or note about the wouldn’t have existed if I hadn’t helped, service. but this pen is something that you can see JK: Yes. I just tell them on the note what for a long time and you can touch it. I can the materials are and what type of refills point to a, a display of pens and say I made they take. That’s all, I like to be the mys- those. tery giver. At one point we talked about the idea of doing an Instagram or a Twit- JEB: I recall many of the people I inter- ter type thing where we would simply leave view for this column find working with their a pen somewhere with coordinates or a hands to be an essential part of their well- cache of some kind to see if people would being. respond. But we haven’t done that yet. So JK: Yes, it’s wonderful because it re- far, we’ve distributed pens in five New Eng- quires intense concentration but a different land States and one European country to kind from the practice of law. And it’s al- various people. most like meditation to me; you have to let In Germany with this nice shop owner, I your mind go, but there’s also a lot of con- was signing the credit card receipt, and she centration at the same time. And, oh the was eyeing the pen. So I gave it to her and finishing process! There is something about she said, ‘oh no, you can’t give me this.’ seeing that shine come up on the finish. And I said that I’d just make another one. Because the finishing process for a wood And that always starts the conversation! pen involves 6 to 8 grades of sandpaper and may take 30 or 40 minutes to get a JEB: Do you have one style that you smooth finish. And the finishing process for make to give away or one color that’s for an acrylic pen or one of the tru-stone pens gifting to strangers? involves 12 to 15 grades of sandpaper and JK: Well we do not give away the most up to a couple hours to get the finish to be expensive ones, but I can say that yours smooth and shiny and the way you want. is one of the moderate ones because it’s It’s becomes relaxing and meditative. You made from one of the materials that’s more get to see the results right away, too, un- expensive than average. like legal work.

JEB: I love my pen beautiful red swirly JEB: That’s a ton of hours per pen! Do pen! you make 40 every Christmas? JK: But the most expensive pen I’ve JK: No, but I make them if somebody ever made, the materials were around $50 has a charitable auction or raffle or needs a or $60 for the kit itself and the material is fundraiser, I do that for a couple organiza- actually what they call a tru-stone blend tions around here. What I’ve had the most where they grind stones to dust and mix fun doing is making pens for people to re- the dust with an acrylic base. This one is a member things by. For instance, one of my mix of several blue stones; there is lapis in wife’s friends finally had to decommission this and it is blended with an acrylic binder their sailboat so I made them a pen from so you get these beautiful swirls. You can some of teak from the boat. Or for gradu- also get a black and white granite blend. ations, we’ve had people bring us a piece of wood from campus to make their son or JEB: It is surprisingly light compared daughter a pen. to your original brass models here, even though it is stone. JEB: Feel good pens. I love it. So I have JK: Yes, the pen kit is about $30 and to ask, on occasion, or after several hours then there is the stone. I’ve seen these of finish work, when you are feeling a little pens made from similar materials retailing punchy, have you ever fenced with one of for somewhere between $200 and $300 on your pens? Etsy. JK: Surprisingly, no! I still have my fencing gear, but I just have to look at it and my JEB: So you’d spend $50 to make a ankle and elbow start to twinge a little bit. $300? If I need to relax, I’ll just go make a pen. JK: I would, but I’m not selling this. It’s ______my favorite. Do you want to nominate yourself or a fellow VBA member to be interviewed for JEB: And it’s a hobby. I assume it is more Pursuits of Happiness? Email me at jeb@ about spending time with your sons and vtbar.org. working with your hands to create something. JK: Absolutely. I mean for 35 years I’ve worked with words, right? Even though those words turned into things like facto- www.vtbar.org THE VERMONT BAR JOURNAL • FALL 2019 1 5 by Paul S. Gillies, Esq. RUMINATIONS The Constitutional Opinions of the Attorney General of Vermont

“It is my opinion and I so advise.”1 tain 20 years ago, and relied on two opin- whereby the finances of the State have ions of the Attorney General, issued in 1970 been greatly impaired, occasioned by the The Attorney General is the prosecutor, and 1987, to buttress his arguments. Jus- want of some proper officer to collect, and defender, and advisor of the State, its chief tice John Dooley gave them little respect. be responsible for the same.” The Attorney law enforcement officer. As advisor, the 24 “The opinions of the Attorney General are, General was authorized to “prosecute all modern Vermont Attorneys General have however, merely advisory opinions for the matters and causes that are properly cog- written and published hundreds of opinion benefit of state officers.”�� They have, he ex- nizable by the supreme court in behalf of letters to governors, commissioners, and plained, “no binding effect in this Court.”6 the State, to advise with the judges of said legislators. Together they reveal the cul- court in setting the form of all mandatory tural and legal changes that bedeviled and The duty to give opinions is codified and other select writs, to file information inspired Vermont state government during in statute. ex officio in said court in all matters proper the last 115 years. They also represent an The Attorney General shall advise therefore; and who shall have full power to important source of Vermont constitution- the elective and appointive State of- take all legal measures to collect all such al law. ficers on questions of law relating to fines . . . .” The incumbent could appoint a For much of the twentieth century, Ver- their official duties and shall furnish deputy if needed.12 mont Attorneys General published their a written opinion on such matters, Samuel Hitchcock was the first A.G. of decisions in a biennial report, beginning when so requested. He or she shall Vermont. He was elected by the General at the time the office was reestablished have general supervision of matters Assembly for one-year terms. After three in 1904, but the publication ceased many and actions in favor of the State and years, when Hitchcock was not interested years before the statute mandating the re- of those instituted by or against State in another term, the legislature chose Dan- port was repealed in 2009.2 The A.G.’s of- officers wherein interests of the State iel Buck to fill that office, who served until fice has a series of three-ring binders index- are involved and may settle such mat- 1795 when the office became vacant, and ing the various opinions over the years, and ters and actions as the interests of the eventually was abolished. This happened in the web page of the office provides links to State require.7 an unusual procedural process. digital versions of the letters of Bill Sorrell The House had passed a resolution in and T.J. Donovan. But those most recent This duty was first imposed on the At- October 1795, ordering an enquiry into A.G.s have issued significantly fewer public torney General in 1904, in the act that cre- “the Benefits resulting from the Office of opinions than their predecessors. No law- ated the modern A.G.8 The A.G. was also Attorney General and whether the act con- yers, public or private, want to broadcast required to attend each legislative ses- stituting said [office] be or be not expedi- their positions on the law before their time, sion and advise and assist in the prepara- ent.”13 Yet a revised law was proposed and or be held to a particular argument when tion of the legislative business, making the adopted on November 12, 1796. In that preparing a case, before it’s clear what best A.G. the early version of today’s Legislative version, the legislature would still fill the of- fits the objectives of the litigation.3 Council.9 fice, although if a vacancy occurred it was Occasionally, one Attorney General over- to be filled by the Supreme Court, which The Value of an rules his predecessor, as Lawrence Jones also had the duty of advising and consent- Attorney General’s Opinion did in an opinion about insurance, reversing to the Attorney General’s choice of a ing an earlier opinion by J. Ward Carver.10 deputy. The collection of fines, penalties, What the State’s highest-ranking lawyer and fees was the first duty of the Attorney thinks is not really precedent, in court at A Short History of the General under this law.14 Then something least, but the General Assembly certainly Office of Attorney General very curious occurred. The office was not listens to what the officer thinks, and gov- expressly abolished; it was just not filled. ernors proceed at their risk in ignoring the The office was first created by legislation The House refused to meet with the Gover- advice of the one who will defend their de- in 1790.11 The Attorney General has never nor and Council in joint session to appoint cisions when challenged. Vermont’s U.S. been part of the Vermont Constitution, alan Attorney General the day following the District court has acknowledged the opin- though attempts to include the office were passage of the reform act, on November ions are not binding, but are “entitled to proposed in 1941, 1971, 1983, 1997, 2003, 13, 1795.15 In 1797, the legislature finally weight in determining the legislative intent and 2007, by the Senate, but only in 1971 abolished the office, by adopting a com- behind a state statute.”4 When other sourc- did the idea make it to a public vote, which prehensive compilation of laws, and abol- es fail to provide “controlling authority,” was then rejected by the people. The fed- ishing all laws not contained in the compi- the opinions take on increased weight, and eral constitution doesn’t mention the U.S. lation. when exigencies of a particular prosecution Attorney General either. Why the legislature abolished the office or defense require the State’s lead attor- It was all about money. The 1790 act cre- of Attorney General is unclear. Perhaps it ney to take a position, it’s worth exploring ating the office of Attorney General ex- was the size of Daniel Buck’s bill or because whether prior A.G.s might have taken a dif- plained the reasons for the legislation. no one wanted the office. The effect of the ferent position on critical issues.5 “There has been great neglect in collect- change was to make State’s Attorneys the John Lysobey appeared pro se in a se- ing and paying into the state’s Treasury chief law enforcement officials in the state ries of cases involving a claim of ac- the fines, penalties, & cost, that have ac- for more than a century.16 cess to his property on Okemo Moun- crued to the State in prosecuting criminals, During the interim 109 years when Ver-

16 THE VERMONT BAR JOURNAL • FALL 2019 www.vtbar.org

mont was without a chief law enforcement men) who served as Attorney General were iel Buck, Robert Stafford, James Jeffords, officer, when the State needed represen- a remarkable group. Sixteen had served Jr.) and two of them later in the U.S. Sen- tation in civil matters, leading private at- as a State’s Attorney before being elected, ate (Stafford, Jeffords); one became Gov- torneys were hired. In the reported deci- and eight were formerly Deputies Attor- ernor (Stafford); one became U.S. Attor- Ruminations sion of Brackett v. State (1801), Richard ney General. Three also served as Munici- ney General (John Garibaldi Sargent). One Skinner, Bennington County State’s Attor- pal Judges (Rufus E. Brown, F. Elliot Barber, became Chief Justice of the Vermont Su- ney, and David Fay, the previous State’s Jr., and Charles E. Gibson, Jr.), before or preme Court (Jeffrey L. Amestoy) and two Attorney, represented the State.17 When after their years as Attorney General, and were respectively appointed a U.S. District Orleans County sued the State Auditor one was a Vermont District Judge (John P. Judge and U.S. Circuit Judge for the Sec- in 1893, over the county’s claim for water Connarn) after his term ended. ond Circuit (Samuel Hitchcock, James J. rents based on the State’s use of the court- Fifteen were graduates of a law school. Oakes). One served as President of the Ver- house and jail, F.D. Hale and Bates & May The longest-serving Attorney Gener- mont Law School (Thomas M. Debevoise). were hired to defend the State.18 No attor- al was William Sorrell, who was 19 years ney is listed as representing the State in the as Attorney General (1997–2016). Jeffrey A Sample of Constitutional Opinions report of Brown v. State Treasurer (1887), Amestoy served 12 years and Lawrence C. where an old soldier tried and failed to ob- Jones 10 years. The shortest service was Of Samuel Hitchcock and Daniel Buck, tain extra pay for his Civil War service.19 Charles J. Adams, who was appointed to the first two Attorneys General, there are Governor Horace Fairbanks was the first fill the vacancy caused by the resignation no extent opinions, and Vermont’s first to recommend creating a modern office of of Thomas M. Debevoise and chose not modern A.G., Clarke C. Fitts, Jr., who is- Attorney General. His 1876 Farewell Ad- to run for the office at the end of the one- sued many letters to state officials, in- dress mentioned that the State had paid year appointment. Many served one or two cluded no opinions that addressed consti- out $3,500 to private attorneys for aiding in terms before moving on to other public of- tutional issues in his four years in the of- State trials that year alone. Not only would fices or private practice. fice. His successor,John G. Sargent, ad- an Attorney General save that expense, Two were defeated for reelection (Ru- vised Governor George H. Prouty not to but would provide assistance and direc- fus E. Brown defeated John G. Sargent in sign the bill appropriating $12,500 to pay tion to State’s Attorneys, particularly in the 1912; M. Jerome Diamond defeated Kim- the debts of the Town of Jamaica, as it vi- more important criminal trials. State’s At- berly B. Cheney in 1975). Five were first olated Article 9 of constitution. He wrote, torneys routinely served for single terms of appointed to fill vacancies (Clarke C. Fitts, “The debt of this town is of its own incur- two years, and needed a mentor to over- J. Ward Carver, Thomas M. Debevoise, ring, is a burden resting on its own citizens see their work. Grand juries would no lon- Charles J. Adams, William Sorrell), and and the property in the town, a debt and ger be necessary, except in cases of trea- all but Adams then ran for reelection and a burden in which the citizens of the rest son and murder, and the information, the won the office in their own names. Four re- of the State have no interest, which they A.G. acting on his own discretion, would signed while in office (Frank C. Archibald, have had no part in creating, and are under replace indictments for most cases.20 Frederick M. Reed, Thomas Debevoise, no obligation to pay.” “When the Legisla- Wheelock Veazey had recommended the and Jeffrey L. Amestoy). ture assumes to impose the pecuniary bur- same in his report on the completion of the Herbert G. Barber (1915-1919) and his den upon the citizens in the form of a tax, Revised Laws (1880), and Governor John nephew F. Elliot Barber, Jr. (1953-1955) two questions can always be raised. First, L. Barstow approved of it in his 1882 Inau- each served as Attorney General. Alban whether the purpose of such burden may gural, as did Josiah Grout in his inaugural J. Parker served two terms in the Vermont properly be considered public, and sec- of 1896, John G. McCullough in his 1903 House and one in the Vermont Senate af- ond, if public, then whether the burden is Farewell Message, and finally Charles Bell ter retiring from the office of Attorney Gen- one which should property be borne by the in his 1904 inaugural. The legislature re- eral. He had succeeded Clifton G. Parker district upon which it is imposed.” “In my sponded to these proposals by passing the as Attorney General, having the same last judgment the measure is unconstitutional 1904 statute. name but no family relationship. and void.”24 The first law authorizing the employ- The first law authorizing the appointment Sargent did not sign his opinion letters. ment of detectives was passed in 1894, of a Deputy Attorney General was passed That was left to Mildred Brooks, his secre- and applied to the State’s Attorneys.21 In in 1937.23 Before that time the Attorneys tary, who wrote to the various officials her- 1908, the legislature authorized the At- General hired assistants to share the work- self, explaining that the A.G. had asked her torney General to employ “such persons load, as early as 1908, when Clarke C. Fitts to relate his view of the law. as he may choose to search for and pur- had the help of John Garibaldi Sargent, Sargent told the legislature that a bill au- sue, or secure evidence against, persons who succeeded Fitts as Vermont’s second thorizing the use of eminent domain for supposed to have committed crime in this Attorney General that year. the construction of dams violated Article state.”22 The youngest Attorney General was 2 of the Vermont Constitution, the takings Before 1937, the office included the At- Thomas Debevoise, appointed at the age clause, because it exempted any mill own- torney General, a secretary, and a detec- of 31. The oldest was Frank C. Archibald, er from condemnation. “The public neces- tive. After that date, a Deputy Attorney who took office at the age of 62. Most Ver- sity which requires the taking of one man’s General joined the office. Louis Peck was mont Attorneys General were in their for- property, though a small farm, must be the first Assistant Attorney General, ap- ties when first elected or appointed. such as required every other land-owner, pointed in 1960, and only the third lawyer Sixteen of the twenty-six were Vermont be he the greatest manufacturer, to yield in the office, hired to handle the litigation natives. it.”25 expected to come with the laying out of All were Republicans except Democrats The demand on his time to provide opin- the Interstates. Since that time, the office John Connarn (1964-1966), M. Jerome Di- ions caused him to introduce some control has grown into the largest law firm in the amond (1974-1980), William Sorrell (1997- over the process. He refused to answer the state. 2016), and the incumbent T.J. Donovan questions of town listers and the President (2016-the present). of the Burlington Humane Society, explain- Who were they? After their service as Attorney Gener- ing that his authority was limited to state The 26 men (and there have been only al, three served in the U.S. House (Dan- officials, which was necessary to avoid con-

18 THE VERMONT BAR JOURNAL • FALL 2019 www.vtbar.org flicts were he to have to enforce the law reconsider its vote concurring on a propos- Ruminations against them. al of amendment of a bill, that ratification Sargent advised Governor John A. Mead “once acceded to by a state legislature” that he couldn’t call the legislature into exhausted its power to act.34 And he ad- special session and limit the subjects that vised Governor Aaron H. Grout that a bill could be addressed. He wrote, “the only levying a tax on billboards was no violation authority you have in the matter of what of Article 2.35 business shall be done is to lay before the Archibald resigned his office in May of General Assembly, when you may call it to- 1925, and the Governor appointed J. Ward gether, such business as your good judg- Carver to the post. Carver served until No- ment directs, and the legislature is at liber- vember of 1931, and issued no opinions ty to enact any and all such measures as it relating to the constitutionality of bills or may see fit to enact.”26 acts. Rufus G. Brown defeated John G. Sar- Lawrence C. Jones took the Attorney gent in the Republican Primary of 1912, General’s office in the election of 1931. and won the office. In his two years in of- That February he advised Representative fice, Brown issued only one constitutional Proctor H. Page that a bill amending the opinion, advising Senator Frank E. Howe peddlers’ licensing law was unconstitution- that a bill blending the drawing of jurors al in charging nonresidents twice the fee to and the empaneling of the twelve, in mu- be paid by resident peddlers. He told Or- nicipal and city courts was not a violation of rin B. Hughes, Chairman of the House Judi- the constitution’s right to a jury. He remind- ciary Committee that the Vermont Consti- ed the Senator that peremptory challenges tution left the legislature the discretion to are a right of exclusion, not of selection.27 apportion the Senate, and that the courts Herbert G. Barber took office as Attor- had no role in the process. He recommend- ney General in 1914.28 He advised Gover- ed using an expert mathematician to de- nor Charles W. Gates that he had no consti- sign a plan “by dividing and assigning in tutional authority to pardon Mildred Brew- JUST proportion and regarding always the ster, found not guilty of homicide by rea- counties having the largest aliquot parts son of insanity, as her confinement was not of a unit or integer and guaranteeing one related to a crime but to the decision that Senator to each county.”36 she was not a safe person to be at large.29 Jones found no constitutional problem In 1917, Barber advised Commission- with the proposed excise tax on electric er of Agriculture E.S. Brigham that he had power manufactured in Vermont, conclud- the authority to order domestic creameries ing that it was not a direct burden on in- to refuse product from Canada until it met terstate commerce and that the legislature state standards, but did not have authority might exempt municipalities with their own to enter Canada to inspect the farms that utilities from the tax.37 To Walter H. Crock- were sending the cream into the state. A ett, then Director of Publicity, he clarified state inspector might enter Canada to dis- the law on public access to lakes and ponds miss the reasons for dissatisfaction with the for fishing. People cannot cross private farmers, in the nature of a friendly business property to reach boatable waters with- visit, not an official inquiry, with no pow- out consent or compensation as that would er to order the Canadians to change their constitute a taking. Jones suggested the methods.30 answer was to lay out public highways to Barber told Governor Horace F. Graham bodies of water.38 he couldn’t commit a delinquent taxpayer A law regulating transportation of tear to jail for failing to pay property taxes, in bombs would not violate Article 16’s right violation of Article 1.31 He also advised the to bear arms, he told the legislature.39 But Secretary of State that an act passed by a law adopting the federal definition of in- the House and Senate, a different version toxicating liquor would be unconstitution- of which was signed by the Governor, was al in his view. “Legislative power is vested void. The Secretary should not amend the exclusively in the General Assembly. It is a copy presented to him as official in accord power which cannot be surrendered, del- with the journals of the respective houses.32 egated or performed by any other agency. Carver was succeeded by Frank C. Ar- The enactment of laws is one of the high chibald in 1919. Archibald told Governor prerogatives of a sovereign power. It would Percival Clement he couldn’t grant a re- be destructive of fundamental conceptions prieve or pardon to a defendant convict- of government through republican institu- ed of murder, as the constitution did not tions for the representatives of the people permit it. He wrote H.P. Sheldon, Fish and to abdicate their exclusive privilege and Game Commissioner, that penalties for vi- obligation to enact laws.”40 olations of the laws he administered could The legislature may regulate nonresident not be remitted by the court, that this is a businesses that ship oleomargarine into power only the governor can exercise.33 He Vermont from another state and offer it for explained to Lieutenant Governor Franklin sale or use and not offend the Commerce S. Billings in 1923 that the Senate could not Clause.41 But Article 2 does not authorize www.vtbar.org THE VERMONT BAR JOURNAL • FALL 2019 1 9 the state to condemn private property for dards and criteria.53 Section 54 would be cation that it would be unlawful for a school federal purposes such as the proposed violated if a postmaster was appointed a to permit religious groups to conduct re- Green Mountain Parkway, the highway deputy sheriff.54 ligious services or classes during school that the federal government had planned Jones further opined that the Board of hours, even when they were offered only Ruminations to construct along the highest parts of the Barber Licensing and Examination cannot on a voluntary basis and offered equally to Green Mountains.42 With that opinion, Law- discriminate against barbers trained in oth- all who chose to participate.68 Six months rence Jones placed himself squarely in the er states, at the risk of violating Article 7 later, Barber agreed that schools might be middle of one of the great political ques- (common benefit).55 Nor can the law at- used for religious purposes, as long as the tions of his time. He even took a position in tempt to fix the prices barbers charge for organizers paid the expense, and that dur- favor of a sterilization law that authorized haircuts.56 A law suspending and invalidat- ing school hours parts of the New Testa- hysterectomies and vasectomies of per- ing all existing pin ball operators’ licenses ment may be read in school, and the Lord’s sons deemed “mentally defective.”43 Nei- would not violate the Commerce Clause.57 Prayer recited, as long as no commentary ther the Fourteenth Amendment nor Arti- Article 13 (freedom of speech, freedom accompanied the readings.69 cle 1 would be offended, in his opinion. of the press) prevents enforcement of a law Barber told John E. Hancock, Speaker of Jones objected to a proposed old age that prohibits the press from publicizing the House, how to read Sections 9 and 14 assistance act on constitutional grounds, decisions to place juveniles in the Weeks together in harmony. Where the constitu- citing Articles 1, 7, and 18, believing that School.58 Article 7 is violated by a bill that tion requires votes to be by ballot, if the it would discourage thrift and industry.44 would discriminate between domestic and requisite number of members ask for the He told Governor Charles M. Smith in 1935 foreign insurance agents and between “yeas and nays,” there can be no secret there was no constitutional prohibition agents who sell chattels on a time sales ballot.70 against aliens owning land in Vermont.45 plan and those who sell them outright.59 Robert T. Stafford succeeded Barber as He told Commissioner of Finance William A bill relating to union school districts A.G. in 1955 but issued no opinions that L. McKee in 1936 that the Governor has no would violate Section 67 if schools are not discussed the Vermont Constitution. Two power to commit the State to hospital and located in each town.60 A bill to appropri- years later, in 1957, Frederick M. Reed doctor’s care of an injured state employ- ate sums for a parochial college would vio- was elected Attorney General, who issued ee, as the legislature had not appropriated late the Establishment Clause of the U.S. only a few opinions involving the constitu- funds for that purpose, citing Article 6 and Constitution.61 tion. Under his watch, the first A.G. Opin- Section 20.46 Lawrence Jones chose not to run for an- ion signed by Louis Peck was issued, tell- Elbridge C. Jacobs, Assistant State Ge- other term in 1946 and Clifton G. Parker ing William Poeter, Commissioner of High- ologist, asked Jones about the removal of was elected that November. Parker told ways, that the State cannot compensate gravel from the beds of rivers, and the A.G. Russell P. Hunter of the Fish and Game Ser- owners who advance construction on prop- explained the gravel was part of the public vice that landowners cannot fish on their erty announced to be condemned, in an trust, and no one, not even the state high- own posted lands out of season, even if the attempt to increase the value of the prop- way department, had the right to touch it land had been licensed as a private pre- erty.71 Thereafter, many of the succeeding without an express act of the legislature.47 serve.62 He wrote Merritt A. Edson, Com- A.G.’s opinions were signed by Peck, as he Secretary of State Rawson Myrick was ad- missioner of Public Safety, that a mandat- became the font of wisdom for succeeding vised that members of the Civilian Con- ed blood test for DUI would violate Article A.G.s, who relied on his knowledge and ex- servation Corps who came to Vermont 10 against self-incrimination.63 Later, he ad- perience. from other states to work in the program vised Edson that a witness and his attorney Reed left office at the end of his term were not qualified to vote in Vermont elec- may not be held in contempt for failing to and Thomas Debevoise was elected A.G. tions, even after a year’s residence.48 Com- appear before a State Fire Warden hearing in 1960. The following April he advised missioner of Motor Vehicles Murdock A. as they were exercising their rights against Oren W. Bates, Chairman of the House Campbell was told funds appropriated for self-incrimination, but that contempt might Committee on Fish and Game, that a bill one biennium cannot be used in a succes- be found if they refused a second time to prohibiting one who has failed to pay a sive biennium unless put in trust by the leg- appear. Parker urged the warden to be poll tax from having a fishing or hunting li- islature.49 sensitive to claims of self-incrimination.64 cense violated Section 67 (right to fish and In 1937, A.G. Jones told Emery A. Me- F. Elliot Barber, Jr. won the office in hunt).72 He told William Poeter, Commis- lendy, Chairman of the Board of Public 1952. Barber found no constitutional ob- sioner of Highways, that when it is neces- Works, that Article 2 did not require com- jection to a bill that would prohibit the ar- sary to eliminate a spring within the pub- pensation to a lumber company that lost tificial raising and lowering of Lake Sey- lic right-of-way, a landowner is not entitled access to its timber rights by the submerg- mour, beyond the minimum and maximum to compensation.73 Debevoise explained to ing of a town highway at the site of the levels of 1953.65 He advised the Joint Can- Governor F. Ray Keyser, Jr. that any Senate Waterbury Reservoir, and further that the vassing Committee of the House and Sen- reapportionment plan must give Chitten- Town of Waterbury couldn’t be compensat- ate to count the votes of a candidate for den County five senators, Rutland Coun- ed for the taking of the highway.50 the House who died, whose election was ty three, and the other counties the same Jones wrote Perry H. Merrill, State For- contested, concluding that the candidate number they then had.74 ester, in 1938 to advise him that the State who received the next highest votes was Debevoise resigned before his first term has authority to store logs in a lake for sev- not to be treated as the victor if the de- ended, and Charles J. Adams, who was his eral years as long as the lake is boatable.51 ceased candidate had more votes. A va- Deputy, was appointed to serve out the He told Sheriff Fred A. Flint to hire dep- cancy would be created if that happened.66 year. Adams told Governor Hoff he couldn’t uties from within his county, at least for Barber told Governor Lee Emerson his appoint a federal customs officer to a po- now, until the A.G. figured out whether it executive order permitting the commis- sition as trustee of the Vermont State Col- was necessary.52 He concluded it would be sioner of taxes to allow representatives of leges.75 He responded to Speaker Franklin proper to give the Conservation Board the the Greater Vermont Association to study S. Billings, Jr. that a call for the “yeas and power to set limits and seasons on fauna, corporation tax returns was a violation of nays” eliminates the opportunity for a se- and no violation of the separation of pow- Section 5, as the returns were confiden- cret ballot in the House, the same answer ers, as long as legislation contained stan- tial.67 He advised the Commissioner of Edu- provided by F. Elliot Barber, Jr. in 1955 to

20 THE VERMONT BAR JOURNAL • FALL 2019 www.vtbar.org a former Speaker.76 On his last day in of- tax allowing lower rates for agricultural Ruminations fice, Adams advised Governor Hoff that a land was proper under Article 9.87 constitutional convention to reapportion James M. Jeffords was elected A.G. the seats in the legislature was possible, in 1968. Among his constitutional opin- even though that process is not laid out in ions, Jeffords held that a prison rule pro- the constitution, although any proposal ad- hibiting convicts’ wearing beards, side- opted would still need to be ratified by the burns, or mustaches did not violate their voters.77 civil rights.88 He advised that the federal Adams did not run in 1964 for the of- voting rights act had effectively eliminat- fice, andCharles E. Gibson, Jr. was elected the durational residency requirement of ed in the General Election that fall. In his the Vermont Constitution.89 The House had two years, Gibson issued one constitutional no power to amend a proposal of amend- opinion, where he opined there was no vi- ment to the constitution; its only power is olation of Section 5 (separation of powers) to concur or refuse to concur.90 Town char- for a legislator to serve on a policy-making ters can authorize selectboards to set mini- committee within the executive branch.78 mum speed limits, even when those limits John P. Connarn, the first Democrat to do not comply with general state law.91 No be elected A.G., took office in January of statute prevents granting tax exemptions 1965, advised Elbert G. Moulton, Commis- and liquor licenses to private clubs without sioner of the Vermont Development De- regard to whether or not they limit mem- partment, that the constitution was not bership on the basis of race, creed, color or troubled by the expenditure of public mon- national origin.92 ey for the construction, remodeling, and fi- He believed a zoning ordinance could nancing of industrial development.79 Con- provide for the termination of pre-existing narn condemned a plan of the Republican non-conforming uses and structures, with- caucus to mandate how all Republican leg- out compensation, as long as termination islators would vote on a bill as a violation is deferred for a reasonable period of time, of Section 56 (oaths of allegiance and of- based on the useful economic life of the fice).80 structure, but also advised that the consti- James J. Oakes was elected Attor- tution was unperturbed by a law that man- ney General in 1966. He reassured James dates compensation.93 A joint resolution H. Hunt of the Vermont Home Mortgage signed by the Governor has the force and Credit Agency that the act creating the effect of law.94 Section 6 is not offended by agency did not violate Section 5 as an un- a bill originating in the Senate that raises constitutional delegation of legislative au- revenue, if that is secondary or incident to thority.81 Oakes told State Senator James its primary purpose.95 Aliens may be ap- M. Jeffords that the legislature cannot con- pointed to state boards.96 A State repre- vene itself as a constitutional convention sentative employed on staff of U.S. Con- and reaffirmed Charles Adams’s opinion gressman as a temporary research intern that any convention, properly convened, is merely an employee and does not hold could not amend the constitution on its federal office in violation of Section 50.97 own. The voters would still need to ratify Jeffords was succeeded by Kimberly B. any changes.82 Cheney in 1973. Although he served only Oakes ruled a statute mandating hel- one two-year term, Cheney wrote more mets for motorcycle riders was within the constitutional opinions than any other A.G. police power of the State, and that a bill before or after his time in office. His consti- authorizing pari-mutuel betting on Sunday tutional opinions repeat many of the con- would not need to be ratified by the vot- clusions of his predecessors—that the con- ers nor did it violate Article 2.83 He believed stitutional right to fish does not authorize the constitution would not be violated by access to boatable waters through private a law requiring registration and licensing property,98 that the durational residency of owners of firearms, but “only insofar as requirement to qualify for voting rights is such legislation must provide appropriate void99—and reach new issues, such as the standards to allow the people to possess unconstitutionality of a rule of the State firearms in defense of themselves.”84 The Board of Pharmacy that attempted to pro- Swanton School Board was not prevent- hibit advertising of drug prices.100 He held ed from leasing rooms in a church for pub- this rule had no reasonable relationship to lic education, as long as the room and the the promotion of health, safety, morals and passageway to and from the room to the general welfare and was unjustified under outside were free of religious symbols.85 A the police power. Reflecting the energy cri- school district may release parochial stu- sis of that time, he held that Vermont ser- dents from class to attend catechism class- vice stations may not refuse to sell gaso- es elsewhere than in a public school build- line to out-of-state motorists.101 Probate ing, provided there is no public expense in- and Assistant Judges must retire after 70 volved in transportation and the students years of age, pursuant to Section 28c.102 are not coerced by public school officials Once negotiated, contracts for state em- to attend the religious classes.86 A land use ployees are subject to modification by the www.vtbar.org THE VERMONT BAR JOURNAL • FALL 2019 2 1 legislature without violating the Contract of a right to a trial by jury no offense to What the Opinions Tell Clause.103 the constitution.118 He disapproved of the He concluded that the legislature’s Sec- law that prohibited employees of a school There is little or no analysis of the bases tion 14 authority to judge the qualifications district or a school district within the same for most of the Attorneys General’s consti- Ruminations of its members is a continuing power, with supervisory union from seeking election to tutional opinions. The letters appear as a the right to unseat a member if facts show the school board, a violation of Article 8.119 lightning round—is it constitutional or not? no proper election.104 Interstate signs list- In 1990, Amestoy ruled that a state prop- Only the conclusion is provided. In many ing private businesses are not exempt from erty tax on second homes would violate instances, the General doesn’t even recite the state sign law.105 The statute that re- neither the equal protection or privileges the article or section of the Constitution quires owners of occupied land who do not and immunities clauses of the U.S. Consti- that triggers the conclusion. keep animals to share in the cost of bound- tution.120 Following the death of Governor History and subsequent constitution- ary fences may be unconstitutional, as a Richard A. Snelling, Howard Dean succeed- al amendments and court decisions have failure of due process.106 ed to the office, but the Attorney General proved some of the opinions were wrong, M. Jerome Diamond defeated Cheney advised him he had no power to appoint or at least no longer reliable, but there they in 1974. His constitutional opinions include a new Lieutenant-Governor, as his office are. Some will say an Attorney General is his view that a judge who turns 70 during wasn’t vacated by the ascension to the just another lawyer, his opinions worth little his term may serve out the rest of it,107 that powers of the Governor.121 Amestoy ap- more than marshmallow topping, but there governor’s appointees made while the Sen- proved of the reappointment of members is the special magic that comes with high ate is in session may exercise the duties of of the Vermont Environmental Board who office that endows these decisions with a the office pending Senate action,108 and were rejected by the Vermont Senate.122 power and conviction that is worth appre- that the governor may veto a joint resolu- Amestoy was appointed Chief Justice of ciating. No other lawyer has so many op- tion when its effect is mandatory and bind- the Vermont Supreme Court in 1997, and portunities to exercise the constitution, ing on the executive branch.109 Diamond al- Governor Dean filled the vacancy by ap- and no other lawyer’s opinions have such lowed paying dues to the Council of State pointing William Sorrell as Attorney Gen- an impact on how the legislature and the Governors even though there was no spe- eral. In 2000, at the request of the Sargent- executive act. cific appropriation, although it has no legal at-Arms, the office ruled that officials could ______obligation to do so.110 prohibit minors from viewing photograph- Paul S. Gillies, Esq., is a partner in the He told the Governor he could remove ic displays of homosexual human sexuali- Montpelier firm of Tarrant, Gillies & Rich- the Commissioner of Public Safety without ty in the State House, without prohibiting ardson and is a regular contributor to the formal charges or hearing, finding the re- access to material depicting similar het- Vermont Bar Journal. A collection of his organization powers of the executive over- erosexual activity.123 Sorrell held that town columns has been published under the ti- riding a statute establishing a six-year term clerks must issue civil union licenses, or tle of Uncommon Law, Ancient Roads, and for the Commissioner.111 He advised the face criminal and civil penalties.124 He ad- Other Ruminations on Vermont Legal His- Real Estate Commission it had no author- vised the legislature that it could not adopt tory by the Vermont Historical Society. Paul ity to adopt rules relating to advertising, vi- instant run-off voting for the offices of Gov- is also the author of The Law of the Hills: A olative of Article 4, and even if a statute ernor, Lieutenant-Governor, and Treasurer Judicial History of Vermont (© 2019, Ver- authorized such rules they would be un- without a constitution amendment.125 mont Historical Society). reasonable and would serve no legitimate After serving 19 years, Sorrell retired, ______1 state purpose.112 So with the Board of Ac- and T.J. Donovan was elected Vermont At- This is a phrase used by many Vermont Attor- neys General at the end of their opinions, signi- countancy’s proposed rules to prohibit so- torney General in 2016. To date there have fying the announcement of a conclusion. licitation, which would be unconstitutional been no constitutional opinions issued by 2 2009, No. 33, § 83(b)(1). and violative of antitrust law.113 his office, reviewing the office web page 3 An index of the opinions of Vermont Attor- A.G. Diamond also decided that state and the small number of opinions shown neys General on the Vermont Constitution, com- piled from the various sources, is available upon agencies have no authority to share re- there. request from [email protected]. ceipts of the lease rents of state lands with These are not a comprehensive list of the 4 Sprague v. University of Vermont, 661 F.Supp. municipalities in which the property is lo- A.G.’s constitutional opinions, and there 1132, 1138 (1987) (Billings, D.J.). cated.114 may be opinions that have not been in- 5 19 C. Wright, A. Miller, and E. Cooper, Fed- John J. Easton, Jr. won the office in the dexed or published that a diligent search- eral Practice and Procedure § 4507, at 98; CJS Courts § 230. election of 1981, after Diamond retired. In er might locate. But taken together, the 6 Okemo Mountain, Inc. v. Town of Ludlow, his two terms, his office issued opinions opinions represent a rich tapestry of sub- 171 Vt. 201, 762 A.2d 1219 (2000). that concluded the Vermont constitution- jects and issues, reflecting the times of 7 3 V.S.A. § 159. 8 al amendments adopted in 1974 were val- each incumbent. Vermont’s Constitution 1904, No 57, § 6. 9 “An act creating the office of Attorney Gen- id, notwithstanding the Secretary of State’s is the shortest and least amended of the eral and prescribing the duties thereof,” No. failure to advertise them as required by state constitutions, and it is also a docu- 57; “An act relating to the election of the Attor- statute115 and another that approved of ment with very little written about it, oth- ney General and the duties of that office,” No. campaign finance law amendments relat- er than the decisions of the Vermont Su- 58, Acts and Resolves Passed by the General ing to political action committees to politi- preme Court and the records of the Ver- Assembly of the State of Vermont at the Eigh- 116 teenth Biennial Session 1904 (Burlington, Vt.: cal candidates. mont Council of Censors. We should be Free Press Association, 1904), 75-77. After Easton’s decision to run for Gover- grateful there were Attorneys General who 10 Biennial Report of the Attorney General of nor in 1984, Jeffrey L. Amestoy won the over time were bold enough to give their the State of Vermont for the two years ending General Election and as Attorney Gen- opinions on legislation and executive ac- June 30, 1936 (Rutland, Vt.: The Tuttle Publish- ing Company, 1936), 109. eral over the next 12 years issued several tion, applying the fundamental law as they 11 Stephen Row Bradley described himself as constitutional opinions of note. One up- understood it. Attorney General in 1783, but there is no evi- held the constitutionality of the state aid dence of any official appointment, beyond his to education formula on grounds including office as State’s Attorney. Dorr Bradley Carpen- equal protection.117 He approved the Uni- ter, ed., Stephen Row Bradley: Letters of a Rev- olutionary War Patriot and Vermont Senator, form Traffic Ticket process, holding the lack 2009), 94.

22 THE VERMONT BAR JOURNAL • FALL 2019 www.vtbar.org 12 “An act appointing an attorney general and June 30, 1924 (Springfield, Vt.: Springfield Print- 79 Ibid., 255-257. Ruminations regulating his office and duty,” October 28, ing Corporation, 1924) 18-20. 80 Biennial Report of the Attorney General of 1790, John A. Williams, ed., Laws of Vermont 35 Ibid., 46-47. the State of Vermont for the two years ending 1785-1791 (Montpelier, Vt.: Secretary of State, 36 Biennial Report of the Attorney General of June 30, 1968, 59-61. 1967), 530-531. the State of Vermont for the two years ending 81 Ibid., 232-235. 13 E.P. Walton, Records of the Governor and June 30, 1932, 249-251. 82 Biennial Report of the Attorney General of Council for the State of Vermont IV (Montpelier, 37 Ibid., 294. the State of Vermont for the two years ending Vt.: J. & J.M. Poland, 1876), 87. 38 Ibid., 300-302. June 30, 1970, 122-128. 14 “An act directing the mode of appointing an 39 Biennial Report of the Attorney General of 83 Ibid., 61-63. Attorney-General in this State and State’s At- the State of Vermont for the two years ending 84 Ibid., 144-145. torneys in the several counties, and regulating June 30, 1934 (Brattleboro, Vt.: The Vermont 85 Ibid., 256-258. their office and duty,” November 2, 1796, John Printing Company, 1934), 340. 86 Opinion #284, September 18, 1969. Note: A. Williams, ed., Laws of Vermont 1796-1799 40 Ibid., 187-189. the citations to the following opinions are taken (Montpelier, Vt.: Secretary of State, 1968), 30- 41 Biennial Report of the Attorney General of from the index at the Attorney General’s office. 32. the State of Vermont for the two years ending 87 Opinion #100, April 17, 1969. 15 Ibid., 355-356. June 30, 1936 (Rutland, Vt.: The Tuttle Publish- 88 Opinion #433, June 9, 1970. 16 Andrew E. Nuquist and Edith W. Nuquist, ing Company, 1936), 61. 89 Opinion #559, July 31, 1970. Vermont State Government and Administration 42 Ibid., 65. 90 Opinion #656-F, February 4, 1971. (Burlington, Vt.: Government Research Center, 43 Ibid., 358-359. 91 Opinion #669, March 19, 1971. University of Vermont, 1966), 242-243. 44 Ibid., 74-75. 92 Opinion # 766-F, September 9, 1971. 17 Brackett v. State, 2 Tyl. 152, 169 (1802). 45 Ibid., 263-265. 93 Opinion #820-F, November 22, 1971. 18 Orleans County v. State Auditor, 65 Vt. 492 46 Ibid., 292-294 (Article 6 (officers servants of 94 Opinion #889-F, May 22, 1972. (1893). the people) and Section 20 (powers of the gov- 95 Opinion #9, January 18, 1973. 19 Brown v. State Treasurer, 59 Vt. 634 (1887). ernor)). 96 Opinion #66, March 20, 1973. 20 Horace Fairbanks, “Farewell Address,” The 47 Biennial Report of the Attorney General of 97 Opinion #134, August 29, 1973. Journal of the House of Representatives of the the State of Vermont for the two years ending 98 Opinion #165, November 13, 1973. State of Vermont, Biennial Session, 1876 (Rut- June 30, 1938, 496-497. 99 Opinion #983, October 13, 1973. land, Vt.: Tuttle & Co., 1877), 25-26. 48 Ibid., 445-447. 100 Opinion #159, November 13, 1973. 21 “An act authorizing state’s attorneys to em- 49 Ibid., 327-328. 101 Opinion #184, December 18, 1973. ploy detective service in certain cases,” No. 77, 50 Ibid., 433-443. 102 Opinion #271, June 28, 1974. Acts and Resolves Passed by the General Assem- 51 Biennial Report of the Attorney General of 103 Opinion #23-76. bly of the State of Vermont at the Eighteenth Bi- the State of Vermont for the two years ending 104 Opinion #29-79. ennial Session 1894 (Burlington, Vt.: Free Press June 30, 1940, 175-177. 105 Opinion #14-78. Association, 1894), 65. 52 Ibid., 367. 106 Opinion #23-77. 22 “An act authorizing the Attorney General to 53 Ibid., 269-272. 107 Opinion #4-70, July 12, 1977. employ persons to search for criminals and evi- 54 Ibid., 368. Note: The numbers of sections of 108 Opinion #51-78. dence,” Acts and Resolves Passed by the Gen- the Vermont Constitution cited by the Attorneys 109 Opinion #58-78. eral Assembly of the State of Vermont at the General in opinions prior to 1974, before the Su- 110 Opinion #32-78, January 5, 1978. Twentieth Biennial Session 1908 (Montpelier, Vt.: preme Court reorganized the text, have been 111 Opinion #72-79. Capital City Press, 1908), 9. For some undiscern- adjusted in this essay to reflect the present ver- 112 Opinion #16-80. ible reason, the legislature reinforced this idea sion of the constitution. 113 Opinion #24-80. by a joint resolution in 1910. “Joint resolution 55 Biennial Report of the Attorney General of 114 Opinion #78-80, May 22, 1980. relating to procuring evidence on behalf of the the State of Vermont for the two years ending 115 Opinion #82-44, February 4, 1982. State,” No. 475, Acts and Resolves Passed by June 30, 1942, 370. 116 Opinion #83-27. the General Assembly of the State of Vermont 56 Ibid., 265-267. 117 Opinion #86-11, November 12, 1986. at the Twentieth Biennial Session 1910 (Rutland, 57 Ibid., 193-194. 118 Opinion #86-6, March 7, 1986. Vt.: The Tuttle Company, 1911), 506-507. 58 Ibid., 110-113. 119 Opinion #87-03. 23 1937, No. 203, § 3. 59 Ibid., 170-176. 120 Opinion #90-1, January 4, 1991. 24 Biennial Report of the Attorney General of 60 Biennial Report of the Attorney General of 121 Opinion #91-15, September 3, 1991. the State of Vermont for the two years ending the State of Vermont for the two years ending 122 Opinion #94-2F, January 28, 1994. June 30, 1910 (Montpelier, Vt.: Attorney Gener- June 30, 1948, 105-111. 123 Opinion #2000-1, March 17, 2000. al, 1910), 35-36. Sargent relied on Article 9’s ob- 61 Ibid., 164-166. 124 Opinion #2000-3. ligation of every member of society being bound 62 Ibid., 208-212. 125 Opinion #2003-1. to contribute the member’s proportion towards 63 Biennial Report of the Attorney General of the expense of the protection of life, liberty, and the State of Vermont for the two years ending property. June 30, 1950, 192-193. 25 Ibid., 38-39. 64 Ibid., 223-228. 26 Ibid., 95. 65 Biennial Report of the Attorney General of 27 Biennial Report of the Attorney General of the State of Vermont for the two years ending the State of Vermont for the two years ending June 30, 1954. 232-234. June 30, 1916 (Rutland, Vt.: The Tuttle Company, 66 Ibid., 230-231. 1916), 21. 67 Ibid., 161-163 (Article 5 (That the people of 28 As the 1914 constitutional amendments left this state by their legal representatives have the a gap in the terms of state officials, Governor sole, inherent, and exclusive right of governing Allen Fletcher reappointed Barber to an interim and regulating the internal police of the same)). appointment as Attorney General to cover the 68 Ibid., 95-98. period after his term ended on November 1. 69 Ibid., 98-102 (Article 3 (no person compelled Barre Daily Times, 28 November 1914, 8. to attend religious worship)). 29 Ibid., 272. 70 Ibid., 219-221. 30 Biennial Report of the Attorney General of 71 Biennial Report of the Attorney General of the State of Vermont for the two years ending the State of Vermont for the two years ending June 30, 1918 (Rutland, Vt.: The Tuttle Company, June 30, 1960, 118-120. 1918), 64-65. 72 Ibid., 69-71. 31 Ibid., 18-19. 73 Ibid., 55-59. 32 Ibid., 31-32. 74 Ibid., 110-114. 33 Biennial Report of the Attorney General of 75 Ibid., 119-124. the State of Vermont for the two years ending 76 Ibid., 224-226. June 30, 1922 (Rutland, Vt.: The Tuttle Company, 77 Biennial Report of the Attorney General of 1922), 17. the State of Vermont for the two years ending 34 Biennial Report of the Attorney General of June 30, 1966, 93-103. the State of Vermont for the two years ending 78 Ibid., 103-104. www.vtbar.org THE VERMONT BAR JOURNAL • FALL 2019 2 3 by Brian Porto, Esq. WRITE ON Keepers of the Flame: John Roberts, Elena Kagan, and the Rhetorical Tradition at the Supreme Court

Introduction producing the available arguments on a similar things that nonetheless have some- particular question. Its most visible fea- thing in common. Metaphors abound in In several previous articles, I have dis- tures are the three processes by which rhet- the law, sometimes to the point of approxi- cussed the role played by classical rhetor- oric persuades: logos, pathos, and ethos.7 mating legal doctrines, such as the “wall” ical techniques in some of the Supreme Logos is familiar to lawyers because it is ra- of separation between church and state in Court’s most memorable opinions. Those tional argument through logical reasoning. First Amendment law or the “fruit of the articles have introduced and illustrated the Pathos, on the other hand, is an effort to in- poisonous tree” in Fourth Amendment law. use of rhetoric by Justices Holmes, Jackson, fluence the reader’s or the audience’s emo- The effective use of both schemes and Black, Brennan, and Scalia, who had differ- tions in favor of the advocate’s position. tropes has resulted in many a memorable ent strengths as rhetoricians, but who all Ethos is the speaker’s or writer’s effort to Supreme Court opinion, as my previous ar- communicated effectively with their read- establish credibility in the eyes of the reader ticles have illustrated. The remainder of this ers in a modern, conversational style.1 This or audience.8 Aristotle stressed pathos and article will show the use of those rhetorical article will show that the tradition of rhetori- ethos as much as logos because he believed devices and others in one opinion each by cal excellence represented by those justices that logical reasoning could not always win Chief Justice Roberts and Justice Kagan, lives on at the Court in the opinions of Chief an important argument in which the deci- the heirs to the Court’s rhetorical tradition. Justice Roberts and Justice Kagan, respec- sion maker must choose based on imper- tively. Before discussing the writing of Rob- fect knowledge. In these circumstances, an Chief Justice Roberts: erts and Kagan, though, a brief introduction advocate who demonstrates credibility and Majority Opinion in Williams-Yulee v. to classical rhetoric is in order. whose argument strikes a responsive chord The Florida Bar, 135 S. Ct. 1656 (2015) in the decision maker’s heart may well gain A Rhetorical Primer an advantage over the opponent. Writing At issue in Williams-Yulee was wheth- is most likely to persuade when it is vivid er the First Amendment permits states to Rhetoric, the ancient art of persuasion, and evocative, yet scrupulously faithful to bar “judges and judicial candidates from is traceable to Greece in the Fifth Century the facts of a case. personally soliciting funds for their cam- B.C.E.2 Rhetoric’s essence is nicely encap- Arrangement addresses the inherent paigns.”12 The Court, speaking through the sulated in the following statement by Aris- problem of “sequence” in ordering one’s Chief Justice, held that the First Amend- totle: “It is not enough to know what to say- arguments. Modern legal arrangement is ment indeed permits such a restriction; ac- -one must know how to say it.”3 That state- traceable to one Corax, who lived in Syra- cordingly, the majority affirmed the same ment is a key to the difference between cuse in ancient Greece during the Fifth Cen- judgment by the Florida Supreme Court.13 rhetoric and logic; logic (philosophy) seeks tury, B.C.E. He created an outline for court- The Court thereby validated Canon 7C(1) of to establish certain truth, whereas rheto- room argument, including an introduction, Florida’s Code of Judicial Conduct, which ric assumes that truth is not certain, but in- statement of facts, argument, and conclu- included the above prohibition, but permit- stead, probable at best.4 When truth is cer- sion. The Romans later added a summary ted judges and judicial candidates to estab- tain, as Plato believed, “how you say it” (or of the argument between the statement of lish “committees of responsible persons” write it) may not be crucial, but when truth facts and the argument, creating what has that could “solicit[ ] campaign contributions is at most probable, as Aristotle believed, become the modern appellate brief.9 and public support from any person or cor- the advocate’s ability to persuade, orally or Style, the remaining canon, encompass- poration authorized by law.”14 in writing, is indeed crucial. es “the fun stuff,” the rhetorical examples Petitioner Lanell Williams-Yulee, who Accordingly, rhetorical techniques are in- we most remember in Supreme Court opin- called herself Yulee, is a Florida lawyer who valuable to aid persuasion in establishing ions because they involve word choice. The sought a trial-court judgeship in Hillsbor- the best available truth, which is what law- best-known examples of style are figures of ough County, which includes Tampa. She yers seek to do in court and in writing ev- speech, which are comprised of schemes drafted, signed, and mailed to local vot- ery day. Former federal judge Richard Pos- and tropes. Schemes are deviations from ers a letter that announced her candidacy ner recognized the importance of rhetoric customary word order; a familiar example and solicited “[a]n early contribution of $25, to law when he observed that “[m]any legal is parallelism: the similarity of structure in a $50, $250, or $500” to “launch the cam- questions cannot be resolved by logical or pair or series of related words, phrases, or paign and get our message out to the pub- empirical demonstration.”5 This reality ele- clauses, as in: “Judge Jones tries to make lic.”15 Unfortunately for Yulee, not only did vates the importance of persuasion through the law clear, precise, and equitable.”10 An- she lose the election, but the Florida Bar rhetoric. other example is alliteration, the repeti- filed a complaint against her for violating its The ancient Greeks and their Roman suc- tion of initial or medial consonants in two ban on personal solicitations of campaign cessors divided rhetoric into the following or more adjacent words, as in the ad that funds by candidates. She countered that canons: (1) Invention, (2) Arrangement, (3) described the soft drink Sprite as “tart, tin- “the First Amendment protects a judicial Style, (4) Memory, and (5) Delivery.6 The last gling, and even ticklish.”11 Tropes, on the candidate’s right to solicit campaign funds two apply to oral advocacy only, so this ar- other hand, are deviations from the cus- in an election.”16 After a hearing, a refer- ticle – which focuses exclusively on writing tomary meanings of the words used. An ee appointed by the Florida Supreme Court – will discuss just the first three. easily recognized example is the metaphor: recommended a finding of guilt, which that Invention is a means of identifying and an implied comparison between two dis- Court upheld.17

24 THE VERMONT BAR JOURNAL • FALL 2019 www.vtbar.org Beginning his analysis, Chief Justice Rob- dates of campaign contributions could ap- when discussing the compelling state in- Write On erts observes that “[t]he Florida Bar faces a pear to the public to bias a judge in favor terest that warrants the speech restriction demanding task in defending Canon 7C(1) of contributors when they appear in court. here, he employs the logos–careful, logical against Yulee’s First Amendment challenge” “That risk is especially pronounced,” the reasoning based on prior decisions–that we because a state is rarely able to show that Chief Justice emphasized, “because most expect to see in a Supreme Court opinion. a restriction on speech is “narrowly tailored donors are lawyers and litigants who may But later in Roberts’s opinion, as he re- to serve a compelling interest.”18 But, Rob- appear before the judge they are support- sponds to Yulee’s claim that because Can- erts noted, plainly appealing to ethos, Can- ing.”24 on 7C(1) permits personal solicitation by ju- on 7C(1) serves Florida’s “compelling inter- To this point, Chief Justice Roberts has dicial campaign committees, it should per- est in preserving public confidence in the used the rhetorical canon of invention to mit the same by the candidates, he uses the integrity of the judiciary, and it does so craft an ethos-based argument stating that rhetorical canon of style to powerful effect. through means narrowly tailored to avoid because a public perception of integrity For example, he employs an aphorism and unnecessarily abridging speech.”19 Accord- is essential to the viability of the judiciary, an analogy to justify limiting the restriction ingly, this litigation is “one of the rare cases states may prohibit judicial candidates from to the candidate, stating, “The identity of in which a speech restriction withstands personally soliciting campaign contribu- the solicitor matters, as anyone who has en- strict scrutiny.”20 tions. Legislators and executive branch of- countered a Girl Scout selling cookies out- Continuing his ethos-themed argument, ficials are not bound by the same expecta- side a grocery store can attest.”25 “The the Chief Justice notes the “vital state inter- tion of impartiality that applies to judges, identity of the solicitor matters” is an apho- est” in preserving “public confidence in the so they are not subject to the same solici- rism (or “maxim”), a short, pithy phrase or fairness and integrity of the nation’s elected tation restriction. The Chief Justice has also sentence that makes a true general state- judges.”21 The judiciary’s authority, he adds, used the rhetorical canon of arrangement, ment about human behavior.26 The refer- “depends in large measure on the public’s moving smoothly from a discussion of Can- ence to the Girl Scout selling cookies is an willingness to respect and follow its deci- on 7C(1) to Ms. Yulee’s campaign solicita- analogy, which sees similarities in dissim- sions.”22 Thus, the public’s belief in the in- tion and her punishment by the Florida Bar ilar things, enabling the audience to un- tegrity of judges is “a state interest of the to strict scrutiny of speech restrictions and derstand an unfamiliar concept (the impor- highest order.”23 Under these circumstanc- to states’ compelling interest in preserving tance of the “solicitor” of campaign contri- es, personal solicitation by judicial candi- a favorable public image of judges. And butions) by linking it to a familiar concept

www.vtbar.org THE VERMONT BAR JOURNAL • FALL 2019 2 5 (the adult shopper’s inability to say no to parallelism lends a pleasing rhythm to the devoted to training Aldo.42 The State in- a Girl Scout selling cookies near a grocery sentence, eases comprehension, and facili- troduced logs showing that Aldo had per- store).27 tates retention. Antithesis lies in the juxta- formed “satisfactorily” on each day of train- Write On In Roberts’s view, just as a shopper may position between the prohibition on judicial ing.43 The trial court denied Harris’s motion be unable to decline a solicitation by an candidates soliciting contributions directly to suppress, and an intermediate appellate earnest child, who may remind the shopper and the authority of their campaign com- court affirmed.44 of his or her own child, a lawyer may be un- mittees to do so. It neatly and compactly The Florida Supreme Court reversed, able to decline a solicitation by a candidate makes clear to the reader the limited nature stating that “when a dog alerts, the fact who could one day sit in judgment of the of the speech restriction in Canon 7C(1). that the dog has been trained and certi- lawyer’s client. The aphorism and the anal- Thus, in his Williams-Yulee opinion, Chief fied is simply not enough to establish prob- ogy facilitate an appeal to pathos because Justice Roberts shows a familiarity with rhe- able cause.”45 To establish the dog’s reli- the reader who appreciates the emotional torical techniques and an ability to use them ability, the State must produce addition- inclination to say yes to the Girl Scout may effectively. All three elements of invention – al evidence, especially “evidence of the also appreciate the urge to say yes to the logos, pathos, and ethos – are present, as dog’s performance history,” such as records judicial candidate, especially if donor and are arrangement and style, the latter repre- showing “how often the dog has alerted in donee are acquainted. sented by both schemes and tropes. the field without illegal contraband having Reasoning that “Canon 7C(1) restricts a been found.”46 The officer in the present narrow slice of speech,” the Chief Justice Justice Kagan: Majority Opinion in case lacked “full records of his dog’s field then uses the trope of hyperbole and the Florida v. Harris, 133 S. Ct. 1050 (2013) performance”; therefore, he could not es- schemes of parallelism and antithesis to tablish the dog’s reliability in drug detec- rebut Justice Kennedy’s claim, in dissent, The question in Harris was what stan- tion.47 that the Florida Bar’s rule restricts speech dard courts should use to decide whether a Justice Kagan’s Harris opinion reflects unduly. Hyperbole is “the use of exagger- drug-detection dog’s “alert,” during a traf- her familiarity with rhetorical techniques. ated terms for the purpose of emphasis or fic stop, has furnished the probable cause Arrangement is evident in the opinion’s heightened effect.”28 Recall that parallel- required for a vehicle search.33 The Florida smooth transition from a presentation of ism is similarity of structure in a pair or se- Supreme Court had held that, in Justice Ka- the facts to a discussion of the current stan- ries of related words, phrases, or clauses. gan’s words, “the State must in every case dard for establishing probable cause con- Antithesis is “the juxtaposition of contrast- present an exhaustive set of records, in- cerning informant-furnished evidence to an ing ideas, often in parallel structure.”29 The cluding a log of the dog’s performance in analysis of why that same standard should Chief Justice writes: the field, to establish the dog’s reliability.”34 apply to dog-sniff evidence too. The analy- But a unanimous Supreme Court, speak- sis uses the logos element of invention to A reader of Justice Kennedy’s dis- ing through Justice Kagan, reversed, con- derive one standard for achieving probable sent could be forgiven for conclud- cluding that the Florida Court’s announced cause from information provided by both ing that the Court has just upheld a standard conflicted with the “flexible, com- sources. It “is not reducible ‘to precise defi- latter-day version of the Alien and Se- mon-sense standard” of probable cause.35 nition or quantification,’” she explains, but dition Acts, approving “state censor- This litigation originated with a traffic is instead a “practical and common-sensical ship” that “locks the First Amendment stop by a Florida police officer of Mr. Har- standard” based on “the totality of the cir- out,” imposes a “gag” on candidates, ris’s truck, which bore an expired license cumstances.”48 She writes: and inflicts “dead weight” on a “si- plate.36 Harris, whom the officer described lenced” public debate. But in reality, as “visibly nervous,” had an open can of We have rejected rigid rules, bright- Canon 7C(1) leaves judicial candidates beer in the truck’s cup holder; when the line tests, and mechanistic inquiries in free to discuss any issue with any per- officer asked for his consent to search the favor of a more flexible, all-things-con- son at any time. Candidates can write truck, Harris refused.37 The officer then re- sidered approach. In [Illinois v.] Gates letters, give speeches, and put up bill- trieved from his patrol car “Aldo,” a drug- [462 U.S. 213 (1983)], for example, we boards. They can contact potential detection dog, and walked the dog around abandoned our old test for assessing supporters in person, on the phone, or the truck.38 Aldo alerted at the driver’s-side the reliability of informants’ tips be- online. They can promote their cam- door handle, indicating that he smelled cause it had devolved into a ‘complex paigns on radio, television, or other drugs there, which prompted the officer superstructure of evidentiary and ana- media. They cannot say, “Please give to conclude that probable cause existed lytical rules,’ any one of which, if not me money.” They can, however, direct to search the truck.39 The search revealed complied with, would derail a finding their campaign committees to do so.30 none of the drugs that Aldo was trained to of probable cause. We lamented the detect, but instead, “200 loose pseudo- development of a list of ‘inflexible, in- The hyperbole here lies in the suggestion ephedrine pills; 8,000 matches; a bottle of dependent requirements applicable in that Justice Kennedy’s dissent equates the hydrochloric acid, two containers of anti- every case.’ Probable cause, we em- majority’s decision upholding Canon 7C(1) freeze; and a coffee filter full of iodine crys- phasized, is a fluid concept—turning to validating “a latter-day version of the tals—all ingredients for making metham- on the assessment of possibilities, in Alien and Sedition Acts.”31 That sugges- phetamine.”40 The officer arrested Harris, particular factual contexts—not read- tion undercuts the gravity of the dissent by who was charged with “possessing pseudo- ily, or even usefully, reduced to a neat depicting it as overheated and dispropor- ephedrine for use in manufacturing meth- set of legal rules.49 tionate to the speech restriction the major- amphetamine.”41 ity has affirmed. The parallelism lies in sim- Harris moved to suppress the evidence The above passage certainly illustrates ilarly structured phrases and clauses, such removed from his truck because, in his view, the logos inherent in Justice Kagan’s ad- as “write letters, give speeches, and put Aldo’s alert had not established probable vocacy for using the same probable-cause up billboards”; “contact potential support- cause for a search. At a hearing, the offi- standard for both informant-provided evi- ers in person, on the phone, or online; and cer testified about the certification cours- dence and dog sniffs. But it also features “promote their campaigns on radio, televi- es Aldo had completed in the previous two the richness of Justice Kagan’s rhetorical sion, or other media.”32 In each example, years and about the four hours weekly he style, especially her facility with figures of

26 THE VERMONT BAR JOURNAL • FALL 2019 www.vtbar.org speech. The first sentence features parallel- able cause to search the truck, reversing Write On ism in its reference to “rigid rules, bright- the decision of the Florida Supreme Court. line tests, and mechanistic inquiries.” The Like the Roberts opinion in Williams-Yu- remainder of the passage uses hyperbole— lee, Justice Kagan’s Harris opinion shows here vivid, mildly exaggerated verbs such the author’s familiarity with classical rhetori- as “abandoned,” “derail,” and “lament- cal techniques. Pathos is absent, but logos ed”—to signal the Court’s replacement of and ethos are evident, along with arrange- its older, more rigid standard with a new, ment and style, the latter represented by more flexible one for determining wheth- both schemes and tropes. er probable cause exists for a search. Jus- tice Kagan uses another vivid verb to de- Conclusion scribe the Florida Supreme Court’s refusal to adopt the newer standard, writing that Classical rhetoric lives on at the Supreme it “flouted” that standard, thus suggesting Court, as the work of Chief Justice Roberts an intentional rejection, not an inadvertent and Justice Kagan shows. Their comfort mistake or oversight. with rhetorical techniques is evident even To Justice Kagan, the Florida Court’s in majority opinions, which restrain author rule is unduly rigid because “[n]o matter creativity in the name of securing five votes. how much other proof the State offers of Readers are encouraged to read more Rob- the dog’s reliability, the absent field per- erts and Kagan opinions, including dissents, formance records will preclude a finding of to better understand the influence of classi- probable cause.”50 “That is the antithesis cal rhetoric on the current Court. of a totality-of-the-circumstances analysis,” ______1 she adds. Furthermore, she writes, again See, e.g., Brian Porto, The Rhetorical Elegance of Robert Jackson, 44, no. 2, Vermont Bar Jour- using vivid verbs (“overhauled” and “sink”): nal 31 (Summer 2018); The Rhetorical Legacy of Antonin Scalia, 43, no. 2 Vermont Bar Journal It is, indeed, the very thing we criti- 28 (Summer 2017); Rhetoric Revisited: A Sec- cized in Gates when we overhauled ond Look at How Rhetorical Techniques Improve Writing, 42, no. 2 Vermont Bar Journal 31 (Sum- our method for assessing the trustwor- mer 2016); and Making It Sing: How Rhetorical thiness of an informant’s tip. A gap Techniques Can Improve Your Writing, 40 no. 2 as to any one matter, we explained, Vermont Bar Journal 36 (Summer 2014). should not sink the State’s case; rath- 2 EDWARD P.J. CORBETT and ROBERT J. CON- er, that ‘deficiency…may be compen- NORS, CLASSICAL RHETORIC FOR THE MOD- ERN STUDENT, 4th ed. 15-16 (New York: Oxford sated for, in determining the overall University Press, 1999). reliability of a tip, by a strong showing 3 ARISTOTLE, ON RHETORIC, Trans. H. Rhys as to…other indicia of reliability.51 Roberts (New York: Barnes & Noble Books, 2005), Bk. 3, Ch. 1, p. 397. RHETORIC FOR THE MODERN STUDENT, 4th 4 KRISTEN KONRAD TISCIONE, RHETORIC ed., 116-17. The State should be able to establish a FOR LEGAL WRITERS: THE THEORY AND PRAC- 27 CORBETT AND CONNORS, CLASSICAL drug-detection dog’s reliability by show- TICE OF ANALYSIS AND PERSUASION, 2nd ed. RHETORIC FOR THE MODERN STUDENT, 4th ing that an appropriate organization certi- 39 (St. Paul, MN: West Academic, 2016). ed., 93. 28 fied the dog after proper testing or, absent 5 RICHARD A. POSNER, LAW AND LITERA- Id. at 403. TURE: A MISUNDERSTOOD RELATION 286 29 Id. at 382. certification, that the dog “has recently 30 (Cambridge, MA: Harvard University Press, Williams-Yulee v. Florida Bar, 135 S. Ct. at and successfully completed a training pro- 1988). 1670. gram that evaluated his efficiency in locat- 6 TISCIONE, RHETORIC FOR LEGAL WRITERS, 31 Id. ing drugs.”52 In other words, according to 2nd ed., at 47. 32 Id. 7 33 Justice Kagan: Id. Florida v. Harris, 133 S. Ct. 1050, 1053 (2013). 8 Id. 34 Id. citing 71 So.3d 756, 775 (2011). 9 Id at, 18-19. 35 Id. (quoting Illinois v. Gates, 462 U.S. 213, 239 The question—similar to every inqui- 10 CORBETT AND CONNORS, CLASSICAL (1983)). ry into probable cause—is whether RHETORIC FOR THE MODERN STUDENT, 4th 36 Id. 37 all the facts surrounding a dog’s alert, ed., 379. Id. 11 Id. at 388-89. 38 Id. at 1054. viewed through the lens of common 39 12 Williams-Yulee v. The Florida Bar, 135 S. Ct. Id. sense, would make a reasonably pru- 1656, 1662 (2015). 40 Id. dent person think that a search would 13 Id. 41 Id. reveal contraband or evidence of a 14 Id. at 1663. 42 Id. 15 Id. 43 Id. crime. A sniff is up to snuff when it 16 44 53 Id. at 1664. Id. at 1054-55. meets that test. 17 Id. 45 Id. (quoting 71 So.3d at 767). 18 Id. at 1665-66. 46 Id. (quoting 71 So.3d at 769). Thus, the analysis ends with playful allit- 19 Id. at 1666. 47 Id. 48 eration in its final sentence, preceded by 20 Id. Id. 21 Id. (quoting Caperton v. A.T. Massey Coal Co., 49 Id. at 1056. the metaphorical “lens of common sense” 50 556 U.S. 868, 889 (2009)). Id. in the previous sentence. Both figures of 22 Id. 51 Id. speech lend color to an otherwise color- 23 Id. (quoting Caperton, 556 U.S. at 889. 52 Id. at 1057. less subject—the appropriate standard for 24 Id. at 1667 (citing A. BANNON, E. VELASCO, 53 Id. at 1058. establishing probable cause. Because the L. CASEY, AND L. REAGAN, THE NEW POLITICS OF JUDICIAL ELECTIONS 15 (2013)). monthly training logs revealed Aldo’s re- 25 Id. at 1669. liability at the time of Harris’s arrest, the 26 ARISTOTLE, ON RHETORIC, Bk. II, Ch. 21, pp. Court concluded that the officer had prob- 339-40; CORBETT AND CONNORS, CLASSICAL www.vtbar.org THE VERMONT BAR JOURNAL • FALL 2019 2 7 by Therese M. Corsones, Esq. WHAT’S NEW VBA Annual Report 2018-2019

It’s a pleasure to report to you about quency of received posts, and to easily per hour, training and experience for over VBA activities during 2018-2019. search and retrieve whatever information 100 private attorneys who agreed to take Thanks to the generosity of so many law- has been shared in all communities to date. low bono cases. We are grateful to the yers and judges who are willing to share You can join any section with the click of a Vermont Bar Foundation, to the Vermont their expertise, the VBA was able to of- button, and easily set delivery preferences. Supreme Court and to the Vermont Cen- fer a full smorgasbord of CLE Programs If you haven’t yet experienced the benefits ter for Crime Victims Services for grants to covering the gamut of legal topics. Over of VBA Connect, please call or e-mail the fund our low bono projects. The VBF fund- 1,605 of you attended 21 different live pro- VBA office at any time for personal trained low bono projects in 9 counties and has grams, watched 598 digital programs and ing. given us the green light to expand repre- attended 97 teleseminars this past year. We’re honored to work closely with all sentation to all 14 counties. In 2018-19, 41 Many thanks to the amazing VBA section three branches of the Vermont Govern- of these cases were placed with private at- chairs who organized at least one CLE dur- ment, to ensure that your and your clients’ torneys, who also donated 288 pro bono ing the year at the Annual Meeting in Sep- interests are well-represented. The VBA hours in addition to the low bono hours tember, at the Mid-Winter Thaw in January, also serves as a resource when needed. for which they were paid. In FY 2019-20, at the Mid-Year Meeting in March, at the Towards that end, we were pleased to co- another VBF grant from BOA settlement VBA Solo & Small Firm Conference in May, host “Legislators’ Days” with the Judiciary funds will allow us to offer updated fore- and during the numerous stand-alone pro- in each of the fourteen counties through- closure defense training and to expand the grams held throughout the state. Please out the Fall. County legislative delegations number of hours of payment per case. A don’t hesitate to let us know what CLE of- were invited to their local state courthous- federal “Victims of Crime Assistance” grant ferings you’d like to see offered, or if you’d es to observe court hearings, and to meet allowed private low bono attorneys to rep- like to present! with judicial officers and lawyer “ambas- resent crime victims in 116 cases; the at- We were pleased to offer the Third Annu- sadors” from each division. Those events torneys also donated 147 pro bono hours al VBA Trial Academy at the Vermont Law were followed by a VBA Legislators’ Re- over and above the hours they were paid School in July. This day-long intensive tri- ception in January and a VBA Legislators’ the low bono rate. Two grants from the al practice program featured ten Vermont Breakfast in March that we hosted at the Vermont Supreme Court funded represen- Supreme Court Justices and Vermont Su- statehouse. The 2019 VBA Legislative tation to 124 respondents in adult involun- perior Court Trial Judges, who ran ten dif- Overview gives a summary of relevant leg- tary guardianship cases and to 28 adopting ferent “courtrooms” throughout the day. islation that was passed during the last leg- parents/couples in post adoption contact They, and participating veteran trial prac- islative session and is available on the VBA agreements. More lawyers are needed to titioners offered individual critiques of the website. We’re grateful for Bob Paolini’s provide these expanding low bono services 60 participants’ opening statements, direct work as VBA Government Relations Co- to Vermont’s most vulnerable residents. If and cross examinations, and closing state- ordinator during the 2019 legislative ses- you would like to join the rosters of partic- ments. Members of the VBA Young Law- sion, and I look forward to continuing that ipating attorneys, please contact VBA Le- yers Division served as volunteer witness- work in the next legislative sessions. Many gal Access Coordinator Mary Ashcroft at es, and VLS students served as timekeep- thanks also to the ambassadors, to the sec- [email protected] ers. Stay tuned for the Fourth Annual Trial tion chairs, and to many other members Our Vermont Lawyer Referral Service Academy in the Summer of 2020! who offered invaluable testimony during continues to work well for clients in need VBA Members have automatic access to the legislative session, when needed. of Vermont counsel, and for the 156 LRS Casemaker, a leading legal research ser- The VBA and the Vermont Judiciary co- panel members who earned more than vices provider with intuitive search capa- hosted a “Vermont Bench & Bar Listen- $840,000 in LRS revenue this past year. bilities. Casemaker 4 is now available with ing Tour” in each of the fourteen counties The VBA fielded 7,159 LRS calls, averaging faster searching capabilities and a new starting with Addison County in September 612 calls per month. We printed and dis- “user friendly” design. Now the jurisdic- 2018 and ending with Windham County in tributed VBA business cards with the LRS tion selection menu is on every page and June 2019. At each tour stop, Chief Justice 800 number, the VT Free Legal Answers results can be searched by court level. All Paul Reiber and VBA President Gary Frank- website, and the “Modest Means” website personalization options have been expand- lin invited the presiding judge and county to all of the Vermont state courthouses, nu- ed. The website includes detailed informa- bar president to join them on a panel that merous public libraries, and many veteran tion about the latest enhancements, and invited the public to share their impressions centers throughout Vermont. If you’re not benefits of Casemaker for your research. of the court system and legal services avail- already an LRS member, consider joining Call or email Jennifer for personal Case- able in the respective counties. Many local for the low cost of $70.00 per year. Your maker training! stakeholders and legislators attended, and next big case could be an LRS referral! VBA membership includes unlimited ac- cable channels typically recorded the event A continuing focus in the arena of pub- cess to section activity through our on- for airing; links to the programs are on the lic education was to encourage lawyer pre- line communication platform “VBA Con- VBA website on the “For the Public” page. sentations in conjunction with Constitution nect.” Developed in response to mem- VBA Access to Justice initiatives ex- Day in September. The VBA has now pro- bers’ requests for the ability to archive and panded significantly over the past fiscal vided over 4,000 copies of “Pocket Con- to search the invaluable information shared year. Not only did we provide direct repre- stitutions” for lawyers and judges to dis- among section members, VBA Connect al- sentation to hundreds of low-income Ver- tribute at presentations they give to school lows section members to control the fre- monters, but we also gave a stipend of $60 and civic groups throughout the state. We

28 THE VERMONT BAR JOURNAL • FALL 2019 www.vtbar.org

were pleased to organize a fourth annual ing general guidance and day-to-day men- marketing software, professional liability Constitution Day Panel Presentation, with toring to the new lawyers, assisting them in insurance, rental cars, and shipping servic- an esteemed panel of five justices, judg- refining and revising their business plans, es. Our newest partners include TurboLaw, es and a Vermont Law School Constitution and insuring that appropriate pro bono Red Cave Consulting, healthiestyou and What’s New What’s Law Professor, moderated by VBA Presi- and low bono cases are directed their way. Smith.ai Virtual Receptionist. We are cur- dent Gary Franklin. The panel present- This year, the Incubator Program included rently in conversations with other provided a one-hour basic overview of the Con- three lawyers setting up practices in Wind- ers of service and will be bringing more op- stitution, with a focus on “Free Speech, sor, Caledonia and Franklin Counties. Four tions to our members soon. Free Press, Free Society,” at Vermont Law new lawyers were recently added to the None of the above accomplishments School in September. Links to the videos of program for the next fiscal year. would have been possible without the hard each Constitution Day presentation are on Since 2012, the VBA has offered train- work and complete dedication of the in- the VBA website. The VBA is happy to pro- ing for and has coordinated the Foreclo- credible VBA staff. I am deeply indebt- vide this and other resources to whomever sure Mediation Program where interested ed to them, as well as to the VBA Board would like to make a presentation in their lawyers receive specialized training to be of Managers for providing excellent lead- community this year. foreclosure mediators and agree to be part ership for your Vermont Bar Association. The Young Lawyers Division and the of a state-wide pool that is offered to eligi- Please know that we are all at your service VBA Diversity Section organized a Mar- ble litigants who opt for mediation in their and appreciate whatever recommenda- tin Luther King, Jr. Poster-Essay Contest foreclosure cases. In the past year, courts tions you might have to bring even more for Vermont middle-school students in the referred 169 foreclosure cases to the VBA value to your VBA membership. Fall. Governor Phil Scott presented awards for mediators, and 79 foreclosure media- ______to the winners at the statehouse in January; tors were agreed upon by the parties and Teri Corsones, Esq., is the Executive Di- the students and their families also toured assigned. rector of the Vermont Bar Association. the statehouse and the Vermont Supreme As always, we strive to bring you the lat- Court Building, where their winning post- est membership products and services, as ers and essays were on public display for evidenced by the numerous sponsors and the month of January. Materials for the exhibitors at our major meetings, and as 2020 MLK, Jr. Poster-Essay Contest are go- detailed in the “Affinity Partners” sec- ing out soon! tion on the website. Be sure to take ad- We were proud to continue the VBA/ vantage of the substantial discounts avail- VLS Incubator Program, which assists new able for consulting, credit card processing, lawyers in establishing solo law practices in practice management, health insurance, underserved areas of Vermont by provid- personal insurances, retirement programs,

30 THE VERMONT BAR JOURNAL • FALL 2019 www.vtbar.org WHAT’S NEW 2018-2019 Sections and Divisons Annual Report

APPELLATE LAW SECTION elder law and estate planning attorneys to fered 4 free community service forums to Chairs: Benjamin Battles speak on that topic that was less familiar talk to the public about their divorce op- and Bridget Asay, Esqs. but nonetheless very valuable to bankrupt- tions-litigation, mediation and Collabora- cy practitioners. This year’s Holiday CLE on tive Divorce. We continue to meet month- The Appellate Section has had a busy December 6, 2019 will be held in Killington ly with our interdisciplinary partners in year! At this year’s Mid-Winter Thaw in and address issues in the emerging field of mental health and financial planning. One Montreal, Section co-chair Bridget Asay cannabis law and bankruptcy, Chapter 12 member traveled to the CP CAL 15th An- moderated a lively conversation with and the family farmer, along with continued niversary training in San Diego. Next year Judge Peter Hall and Justice Marilyn Sk- discussion on student loans in bankruptcy. will be in Redwood City. All are welcome oglund that touched on briefing, preparing Several bills were introduced in the to attend. The IACP (International Acad- the record, and arguing appeals at the Sec- House and are now in committee regarding emy of Collaborative Professionals) Forum ond Circuit and Vermont Supreme Court. student debt dischargeability. The bank- is in Chicago this year, October 25-27. This The Section also hosted a well-attended ruptcy bar will be monitoring the progress is a great place to network and expand CLE program on state constitutional law of those bills through the legislative pro- your skills. We now incorporate zoom as at this year’s Mid-Year Meeting at the Lake cess. our meeting platform as our membership Morey Resort. The panel for that program We congratulate Jan Sensenich, Esq, expands. Attorney members who are inter- featured Bridget and her Section co-chair Vermont’s sole Chapter 12 and Chapter ested in joining the CPVT practice group Ben Battles, as well as retired Vermont Su- 13 standing trustee, on his being elected are encouraged to contact Nanci at nanci@ preme Court Justice John Dooley, Rebec- President of the Association of Chapter 12 nancismithlaw.com. ca Turner of the Defender General’s Office, Trustees at that organization’s annual con- and Lia Ernst of the ACLU. And speaking ference in July 2019 in Indianapolis. And, CONSUMER LAW SECTION of state constitutional law, Ben published congratulations as well to Ray Obuchows- Chair: Jean Murray a review of Sixth Circuit Judge Jeffrey Sut- ki, Esq., who was elected President of Na- ton’s book 51 Imperfect Solutions: States tional Association of Bankruptcy Trustees The Section has been relatively quiet, and the Making of American Constitution- at its annual meeting last August. Vermont but continues to work on debt collection al Law in the Winter 2018 edition of the can be proud to have two of its trustees in reform legislation throughout the legisla- Vermont Bar Journal. In other appellate the top positions in these national organi- tive session. news, the Vermont Supreme Court host- zations. Congratulations Jan and Ray! ed an “Appellate Bench-Bar Meeting” at CRIMINAL LAW SECTION its courthouse in December, where the jus- BUSINESS ASSOCIATION Chair: Katelyn Atwood, Esq. tices and attorneys discussed a number of LAW SECTION topics including forthcoming rule changes, Chair: Tom Moody, Esq. There will be a criminal law update pre- plans for electronic filing, renovations to sentation at this year’s VBA Annual Meet- the Supreme Court building, and the im- It was an unusually quiet year for the ing on September 27, 2019 with present- portance of civility among advocates. And Business Associations Section. After sev- ers from both the prosecutorial and de- has been discussed on the Appellate Sec- eral years of active involvement with the fense sides. tion’s VBA Connect page, the Vermont Law Vermont Legislature, there were no busi- School is in the process of launching an ap- ness-law related bills that required the at- DISPUTE RESOLUTION pellate advocacy project where VLS stu- tention of the Business Associations Sec- SECTION dents will provide pro bono representation tion. We anticipate we will be back in the Chairs: Neil Groberg to self-represented litigants at the Vermont legislature next session. Also, for the first and Richard Hecht, Esqs. Supreme Court who meet certain financial time in at least a decade, we did not give eligibility criteria. The project has also be- a business law presentation at the annu- With over 135 members strong, the gun providing moot courts for private at- al meeting. Likewise, we will be back next members of the Dispute Resolution Sec- torneys who have arguments scheduled year. In 2020, we also plan on putting on tion continue to strive to make mediation, at the Court. (Interested advocates should a free-standing live half or full day seminar arbitration and facilitation more utilized, contact VLS Professor Catherine Fregosi). on business law basics to be recorded and accepted and publicized in Vermont’s le- added to the VBA digital library. gal community. This year, the section solic- BANKRUPTCY LAW SECTION ited a few bar journal articles, the Improv Chairs: Nancy Geise COLLABORATIVE LAW SECTION program and the VBA Annual Meeting and and Donald Hayes, Esqs. Chair: Nanci Smith, Esq. have actively pursued conversations on VBA Connect. We’d like to see more activ- The bankruptcy bar section held its an- The Collaborative Law Section invites ity from this diverse group and more dis- nual Holiday CLE on December 7, 2018 at members from the larger VBA membership cussion about the various mediation strat- Trader Duke’s in South Burlington. There who are interested in Collaborative Prac- egies. The Section anticipates becoming were seminars on topics specific to debt- tice to reach out and create your own local even more vibrant in the coming year and or and creditor bankruptcy practice, such practice group or join an existing practice welcome suggestions from all Bar mem- as student loan debt, lease assumption and group, such as CPVT (Collaborative Prac- bers regardless of Section on opportunities reaffirmation agreements, along with a ses- tice Vermont). This past year, we rolled out for Dispute Resolution and interaction with sion on the use of bankruptcy petitions as our Divorce Options program, modeled on the DR Section. an estate planning tool. The bar brought in the successful California platform, and of- www.vtbar.org THE VERMONT BAR JOURNAL • FALL 2019 3 1 nor the Governor will ignore its birthday - many people believe a bill will be passed and signed into law modifying Act 250. This law could well influence some or What’s New What’s most of the ten criteria of Act 250, as well as its process. We will keep you informed as the Legislative Session begins in Janu- ary.

FAMILY LAW SECTION Chair: Patricia Benelli

Family Law Day fell on May 16 this year, and the Family Law Section put on a well- attended seminar. We began with a year-in- review update of Vermont family law, continued with a thorough review of Vermont law on how relocation of a parent affects parental rights and parent-child contact, broke for lunch, moved on to an important presentation on protecting the benefits of a disabled client or of the disabled child of a client in family law cases, and ended with a fascinating look at brain science and how it applies to both our clients and ourselves and plays out in our work, especially when trying to settle cases. The Section will also be presenting a CLE at the fall VBA meeting on domestic violence, a factor which is all too common in our work. The seminar will focus on how to recognize it, how firearms relate to it, what to do about it when you find it, and how to handle it in the mediation process. ELDER LAW SECTION tion’s Proposed Act 250 Bill. We also circu- Family Law Section members were very Chair: Glenn Jarrett, Esq. lated revisions to the Vermont Stormwater active in the legislature last term, as many Management Rule, the Senate Bill relating family law bills were introduced. Most no- The Elder Law Section co-sponsored the to the provision of water quality services (S. tably, we were asked to weigh in on the new 9th Annual Elder Law Summit with the Ver- 96) and the wetlands and agricultural qual- alimony guidelines, which were made nec- mont Chapter of the National Academy of ity bill (H. 525). We included ANR compre- essary by the recent changes in the tax law. Elder Law Attorneys in October 2018. Bob hensive PSFA testing plan; Act 21 (S. 49) The upcoming term is expected to be very Pratt presented an update of the new law relating to the regulation of polyfluoroalkyl busy for us. Several bills proposing signifi- that made many changes to Title 14. A substances in drinking and surface waters, cant changes in our parental rights and cus- panel of lawyers from New York, Massachu- S. 55 an act relating to the regulation of tody standards were introduced last year, setts, New Hampshire and Vermont spoke toxic substances and hazardous materials, but not acted upon. They are expected to about the differences between laws in the and S. 40 an act relating to testing and re- be taken up again this year, and they will various states and issues arising when cli- mediation of lead in the drinking water of rile the parental rights waters. The section ents move from one state to another. schools and child care facilities. is also undertaking a comprehensive review On May 19, 2020, the Section is spon- The most recent Act 250 Committee proof relocation law in other jurisdictions with soring an Elder Law Day with speakers dis- posal (Draft 9.2, 4/4/2019): https://legisla- the goal of proposing legislation to fill this cussing capacity planning and end of life ture.vermont.gov/Documents/2020/Work- void in the Vermont family law statutes. It issues, long-term care and Medicaid plan- Groups/House%20Natural/Bills/19-0040/ should be another busy year. ning, asset preservation, post-eligibility is- Drafts,%20Amendments%20and%20 sues for Medicaid recipients, special needs Summaries/W~Ellen%20Czajkows- GOVERNMENT AND trusts and ethics. Mark your calendars! ki~19-0040,%20Draft%209.2,%204-4-4- NON-PROFIT SECTION 2019~4-24-2019.pdf Chair: James Porter, Esq. ENVIRONMENTAL LAW The Administration’s proposal (H. 197) SECTION which should be the same as S.104 (be- At the VBA Annual Meeting, Elizabeth Chair: Gerald Tarrant, Esq. low): https://legislature.vermont.gov/Doc- Miller and Michael Kennedy will be present- uments/2020/Docs/BILLS/H-0197/H-0197 ing the CLE “The Attorney as Board Mem- At the past June 2019 CLE we contin- As Introduced.pdf ber.” Though sponsored by the Health Law ued our discussion on proposed changes S. 104: https://legislature.vermont.gov/ Section, the session will be very relevant to Act 250, including a discussion on the Documents/2020/WorkGroups/Senate to non-profits. The CLE addresses com- Report on Act 250: The Next 50 Years; the Natural Resources/Bills/S.104/S.104~Corey mon questions faced by attorneys: Should latest draft of proposed Act 250 changes Parent~As Introduced~2-20-2019.pdf you serve on the board of a client organi- from the House Natural Resources, Fish & Since this is the 50th Anniversary of Act zation? How do you protect yourself from Wildlife Committee and the Administra- 250 - and its likely neither the Legislature creating an attorney-client relationship?

32 THE VERMONT BAR JOURNAL • FALL 2019 www.vtbar.org

How many boards should you serve on and gration Courts are experiencing significant ing of the Canadian Society of International how do you handle conflicts among organi- changes. There are many other changes Law (CSIL), and at the April 11, 2019 annual zations when you serve on more than one too numerous to mention here but it is cer- meeting the ABA Section of International board? The top dos and don’ts to being a tainly an interesting – and busy - time to Law. Section members continue to active- What’s New What’s great board member while protecting your practice immigration law. ly engage with the Vermont International license will also be discussed. Members of As always, the ILS welcomes members Trade Alliance, and the Vermont Council on the government and non-profit section are to post questions and comments on VBA World Affairs. Members are encouraged to encouraged to please submit requests or Connect and provide suggestions on CLE post comments, questions or international recommendations for new CLEs, to Jim or seminars and how to increase engagement legal developments of note through VBA to the VBA for consideration at a future bar with this group and other members of the Connect. meeting. bar. JUVENILE LAW SECTION HEALTH LAW SECTION INTELLECTUAL PROPERTY Chairs: Linda Aylesworth Reis Chairs: Drew Kervick LAW SECTION and Sarah Star, Esqs. and Elizabeth Wohl, Esqs. Chair: Andrew Manitsky, Esq. In the past year the Vermont Supreme For the VSA’s 2019 annual meeting, the The IP Section was active this year, pre- Court has issued several full court opin- health law section organized a cross-disci- senting at the March Midyear Meeting in ions on juvenile law topics including educa- plinary presentation on considerations for Lake Morey and at the June Procrastina- tional neglect, the Interstate Compact on lawyers serving on non-profits boards of di- tor’s Day in South Burlington. Presenters the Placement of Children, special immi- rectors. In particular, how lawyers can navi- included Nancy Livak, Walter Judge, Pa- grant status for undocumented youth and gate the thorny issues that inevitably arise tricia Nelson, and Section Chair Andrew appeals from denials of termination of pain connection with board service? And Manitsky. They covered copyright and so- rental rights petitions. Also of note is that what ethical issues face attorneys who par- cial media, new developments in trade two Federal lawsuits against the Vermont ticipate on non-profit boards? Please con- secrets and non-competes, copyright for Department of Children and Families for tinue to reach out to dkervick@dunkiel- the transactional lawyer, and principles of treatment of children and parents have also saunders.com or ewohl@brattleborore- trademark protection and infringement been allowed to move forward in U.S. Dis- treat.org if you have ideas for future health analysis in connection with recent Vermont trict Court. This year the juvenile law sec- law events or are interested in becoming beer trademark disputes. In addition, An- tion offered a CLE on helping clients and more active with the health law section! drew presented on a broad array of copy- their extended families access resources in right issues in visual arts at this summer’s the family and probate courts while avoid- IMMIGRATION LAW SECTION Governor’s Institute of Vermont, an 8-day ing pitfalls of the child welfare system. In Chair: Sidney Collier, Esq. residential program for highly motivated Vermont, despite the lowest rates of child- teens studying digital media and creative hood poverty in the nation, we lead in ter- Immigration law practitioners are cer- technology and design. minations of parental rights, and have had tainly aware of the many recent and con- more children in state custody per popu- tinued changes to U.S. immigration law INTERNATIONAL LAW & lation than New York or any other New and policy. Absent an injunction, the new PRACTICE SECTION England state. The juvenile law section is public charge rule will take effect October Chair: Mark Oettinger, Esq. committed to providing support to law- 15, 2019 and is expected to have sweep- yers looking to enter this field and we in- ing impacts on legal immigration. USCIS is The VBA’s International Law & Prac- vite any interested VBA member to get in also expected to implement an H-1B regis- tice Section has approximately 50 mem- touch with us to try to solve Vermont’s child tration program for the upcoming FY 2021 bers. We engage in informal member-to- welfare crisis. H-1B cap filing season that will dramatical- member resource sharing and cross-refer- ly change the H-1B cap season from prior ral. During the current year, the Section is LABOR AND EMPLOYMENT years. co-hosting a presentation entitled Lawyers SECTION Recent policy guidance provides USCIS Without Borders. We are collaborating with Chair: Stephen Ellis, Esq. adjudicators increased discretion to deny the VBA’s Labor & Employment Section applications and petitions without first pro- and its Immigration Section to produce this The Labor and Employment Law Sec- viding applicants an opportunity to fix cer- event. The presentation is focused on the tion is presenting a two-part CLE program tain deficiencies, making it critically impor- representation of clients in need of guid- at the Annual Meeting on September 27, tant to ensure cases are properly filed. In ance on inbound and outbound immigra- 2019. Entitled “Lawyers Without Borders,” addition, USCIS has begun implement- tion and foreign direct investment. We ex- the program will focus on emerging issues ing a policy that expands the circumstanc- plore transnational contracts and the prac- and challenges for labor and employment es when the agency will issue Notices to ticalities of cross-border enforcement. lawyers dealing with the growing “remote” Appear for individuals with certain denied Section members continue to collabo- workforce and the increasingly global work- benefit applications, which will result in rate on the design, dissemination and im- place. Our outstanding panel will provide more individuals being placed in removal plementation of a proposed World Court important insights and guidance based on (deportation) proceedings. The travel ban of Human Rights (WCHR), a supra-national real-world practical experience. continues to prevent thousands of visa ap- court that would, if implemented, unify the Section members (including your Chair) plicants from the affected countries from jurisprudence and procedure of the grow- provided important testimony from the entering the United States. ing body of public international human employer’s perspective in connection with We are also seeing a surge in process- rights law. For further details on this proj- new the elimination of the statute of lim- ing times for adjudicating petitions and ap- ect, please see www.worldcourtofhuman- itations for claims of childhood sexual plications pending before USCIS; there has rights.net. In the past year, Section Chair abuse. 12 VSA §522. Our input contribut- been increased scrutiny of social media his- Mark Oettinger gave keynote addresses on ed to the inclusion of subsection (d), which tory usage by visa applicants; and, Immi- the WCHR at the October 31, 2018 meet- requires a finding of gross negligence to

34 THE VERMONT BAR JOURNAL • FALL 2019 www.vtbar.org support an award of damages against an PROBATE AND TRUST SECTION What’s New entity that employed the abuser if the Chairs: Bob Pratt and Mark Langan, Esqs. claim against that entity would have been barred by any statute of limitations in effect Statutes: The Probate and Trust Section on June 30, 2019. was active in the passage of two statutes: Section members also weighed in on The Probate and Trust Section promot- proposed legislation (H-1) which would ed H. 287 – “Small Probate Estates” bill have added a provision to FEPA (21 VSA (an act relating to small probate estates); §495o) prohibiting “any agreement not to signed by Governor Scott on May 28, 2019; compete or any other agreement that re- effective on July 1, 2019. The bill increased strains an individual from engaging in a law- the limit on small estates from $10,000 to ful profession, trade, or business.” While $45,000. The estate must consist entirely some members supported the bill, others of personal property. Timeshare units can (including your Chair) argued that it failed be considered personal property. Interest- to adequately account for the distinction ed parties have 15 days to object. Letters between agreements whose sole purpose of Administration are effective for one year. is to restrict competition (i.e., “non-com- The statute spells out what happens if the pete agreements”), and agreements that small estate is insolvent. seek primarily to protect confidential and The Probate and Trust Section promot- valuable business information and relation- ed and participated in the passage of H. ships (i.e., “nondisclosure” and “non-solic- 436 – Act 11 which is essentially the Uni- itation” agreements). We also argued that form International Wills Act. If an Interna- the Bill failed to account for situations in tional Will is in compliance with the statute which an affected individual may be in a it will be valid as to form, irrespective of position to secure fair compensation for the place where made, location of assets, broader restrictions through arms-length or nationality, domicile or residence of the bargaining. In light of these complexities, testator. The statute sets forth the require- the Committee (Commerce and Economic ments for validating an International Will. Development) decided to table the bill un- A Certificate by an authorized person re- til the next session. garding requirements must be attached to the will. The template for the Certificate MUNICIPAL LAW SECTION is in the statute. A person with an active Chair: Brian Monaghan, Esq. Vermont law license and in good standing is an authorized person under the statute The Section remains quite active in their who can sign the Certificate. This statute is discussions on VBA Connect sharing in- helpful for U.S. Citizens who are domiciled formation about municipal land-use vio- abroad and do not have a domicile with- lations, self-governance, mutual aid and in the United States. Vermont can probate more. The Section will have an annual case these estates. law update at the VBA Annual Meeting on Probate Rules: The Probate and Trust September 27th. Section was active in passage of various Rules of Probate: PARALEGAL SECTION New Rule 39 allows expedited proceed- Chair: Carie Tarte, RP®, AIC ings in cases that potentially may be ap- pealed de novo to the civil division. Under The Paralegal Section is working on a the amendment, if both parties have ap- roundtable presentation for the VBA Tech peared, the judge may make a determina- Conference in May covering various e-dis- tion on the merits without swearing-in the covery tools used by paralegals and the parties if the facts as represented by them pros and cons of each. In addition, we are on the record are undisputed and no party hoping to put together a submission for objects. the Winter edition of the Vermont Bar Jour- The Probate and Trust Section participat- nal on whether or not paralegal licensure in ed in the special committee composed of Vermont could work. judges, court administrators, members of the media and various members of other PRACTICE AND PROCEDURE rules committees (i.e, Civil Procedure Rules SECTION Committee, Criminal Procedure Rules Chair: Gregory A. Weimer, Esq. Committee, Family Law Rules Committee) relating to the use of electronic devices in The past year has been a quiet one for the court room. Rule 79 of the Probate the Committee. In the coming year the Rules sets forth the rules relating to the use Chair will contact members to discuss top- of electronic devices in the probate court. ics of interest for development into semi- Amendment to V.R.P.P. 43(b) reflect the nar topics and/or possible articles for the addition of new V.R.P.P. 43.1 promulgated Bar Journal. simultaneously, which permits testimony to be presented by video or audio conference in appropriate circumstances. New V.R.P.P. www.vtbar.org THE VERMONT BAR JOURNAL • FALL 2019 35 43/1 basically adopts the procedures of visions which now impose a transfer tax on The gender discrimination survey has been V.R.C.P. 43.1 with minor changes in termi- the transfer of a majority of the interest in distributed and exciting events and collab- nology and timing to better reflect probate an entity, even if there is no deed record- orations in the works for 2020, the 100th an- practices. Administrative Order No. 47 im- ed; and (d) in support of the Vermont Bank- niversary of the 19th Amendment! What’s New What’s plements these new rules. er’s Association, a significant change in the Rule 3 (e) was added to provide a “pris- Current Use program, resulting in the re- WORKERS’ COMP oner’s mailbox” procedure for the fil- classification of Land Use Change Tax liens Chair: Keith Kasper, Esq. ing of a petition in a probate proceeding as contingent liens, until such time as de- by an inmate confined in an institution. velopment occurs. Members Jim Knapp A quiet year for the VBA Workers’ Com- The amended rule is virtually identical to and Andy Mikell provided extensive testi- pensation Section this year. We had ex- V.R.A.P. 4 (f). Rule 5 (f) was redesignated as mony on the bills in numerous committee pected a significant debate in the Legisla- Rule 5 (f) (1) and Rule 5 (f) (2) was added meetings. ture as to Vocational Rehabilitation issues, to provide a “prisoner’s mailbox” proce- As the new provisions for notaries took but nothing ever really came of it. A num- dure for the filing of documents after the effect on July 1, 2019, Co-chair Jim Knapp ber of long time Vermont Department of petition in a probate proceeding by an in- was a co-presenter for a well-attended we- Labor Staff have retired over the past year mate confined in an institution. The provi- binar discussing the technical aspects of and the VBA WC section has shown their sion is virtually identical to the simultane- the new provisions. appreciation of these staff members many ously added V.R. P.P 3 (e) and substantially The Title Standards subcommittee of the years of dedicated service to the public. identical to V.R.C.P. 5 (e) (4) and V.R.A.P. 25 Real Estate Section is presently working on Beginning work on a potential series of (a) (2) (C). new title standards for easements, mobile joint seminars with our neighboring states’ V.R.P.P. 79.1 relating to the appearance homes, partnerships and other topics of in- Bar Associations of NH, MA and NY for and withdrawals of attorneys not admitted terest. New standards will be released in choice of law issues and the differing WC to practice in Vermont. The rule deals with September of 2020. benefits available in each of these states. appearance through a motion pro hoc vice and the court’s discretion to grant, deny WOMEN’S DIVISION YOUNG LAWYERS DIVISION and revoke out-of-state counsel in the pro- Chair: Samantha v. Lednicky, Esq. Chair: Ben Traverse, Esq bate courts. Legislative Initiatives: After our annual meeting at the Equi- This year, the Young Lawyers Division A joint committee between the Pro- nox last September, the Women’s division (“YLD”) has dedicated its efforts to re- bate and Trust Section of the Bar and the appointed a new set of officers who have cruitment and retention challenges within Trust Section of the Vermont Bankers As- come together to plan a number of suc- our new lawyer community. Members of sociation was formed to review the Uni- cessful events both within the bar and the the YLD board have been participating in form Trust Decanting Act (“UTDA”). Some broader community. In December 2018, a statewide working group on these chal- states have passed the Uniform Trust De- we hosted a panel discussion on Women in lenges. The board is also working on a canting Act and committee is exploring the Judiciary. Judge Christina Reiss, Jus- comprehensive survey for its members, fo- whether Vermont should pass the uniform tice Marilyn Skoglund, Justice Beth Rob- cused on the opportunities presented by act as well. inson, and Judge Helen Toor were asked practicing law in Vermont. about their respective paths to their cur- The YLD has continued to host region- REAL ESTATE SECTION rent positions in the judiciary, obstacles al mixers throughout the state. he YLD has Chairs: Jim Knapp they faced, any challenges or perceptions also continued its “Dinner with a Judge” and Benjamin Deppman, Esqs. they continue face, and the importance series, which is designed to provide newer of having women in these positions of au- lawyers an opportunity to have small, infor- The peak achievement for the section thority. This lively discussion was followed mal discussions with members of the judi- was the well-attended and very informative by a social mixer. On March 8, 2019, we ciary on general topics related to the pro- day of CLE programs at Real Estate Law collaborated with the Vermont Council on fession. Day in November. Nearly 200 members at- World Affairs to put together a panel dis- Additionally, the YLD membership has tended the program. Co-Chair Jim Knapp cussion and celebration for Internation- been giving back to the legal community. also presented the real estate segment at al Women’s Day. We heard from four re- Members were eager to volunteer as wit- each of the Basic Skills programs in Sep- markable Vermont women, including re- nesses for the VBA Trial Academy. The YLD tember and March for attorneys pursuing tired Vermont Supreme Court Justice De- also organized a long-awaited update to admission to the Bar. nise Johnson, who shared her stories and the “On Your Own” booklet, a free legal The section is very active on the VBA perspectives from her career in law. We guide for Vermonters entering adulthood. Connect Online community, with numerous hosted a wellness CLE at the VBA meet- Moreover, this past January, the YLD distinct discussion threads posted over the ing titled “Us Too” to address the #metoo held another successful annual Mid-Winter last year, almost on a daily basis. movement, we heard compelling personal Thaw in Montreal, keynoted by Governor The 2019 Legislature took up bills re- stories and discussed topic such as “how Madeleine Kunin. The YLD is looking for- lating to several topics of interest to Sec- the #metoo era changed you” and “how ward to hosting the Thaw again at the Om- tion members: (a) a complete revision of do we integrate our personal experienc- ni-Mont Royal, on January 17 and 18, 2020. the Land Gains Tax statute that will signif- es in the #metoo era into our professional icantly reduce the number of transactions lives, especially as attorneys working here for which returns have to be filed when the in Vermont.” This fall we are kicking off changes take effect on January 1, 2020; a Women’s Division mentorship program (b) a significant increase in recording fees, with Vermont Law School students with a coupled with updates and revisions to the round table discussion down at VLS Sep- recording statutes addressing processing tember 19, 2019. If you are interested in of instruments delivered for recording; (c) participating as a mentor, please reach out revisions to the Property Transfer Tax pro- to me via email: [email protected].

36 THE VERMONT BAR JOURNAL • FALL 2019 www.vtbar.org by Micaela Tucker, Esq. BE WELL Lower Your Stress, Increase Your Resiliency

I have always been interested in resil- interaction with a trusted adult. That on changing roles and perspectives when ience--the ability to face adversity pro- healthy interaction–called a responsive re- needed. Self-control enables us to main- ductively. From a wellness perspective, I lationship--is undergirded by a type of car- tain calm in highly emotional and conten- do not buy in to the concept that we are ing and thoughtful communication called tious situations. It also keeps us focused. each responsible and capable of handling “serve and return.” It turns out that both All of these intertwining functions are criti- all the world throws at us. I, for instance, childhood and tennis are no fun without a cal for self-regulation and further learning would not have survived the crisis of raising responsive partner. In the infant’s or tod- including how to be able to make healthy a son with disabilities, had my community dler’s case, well-being requires a trusted and reasonable choices. With a safe and not carried us through his childhood. Im- adult partner who is sensitive and respon- secure environment and healthy social in- possible. Recent work at Harvard in child- sive to a young child’s sounds, gestures teraction, executive function develops hood resilience has reinforced my belief in and needs. and enables all the learning children need. the importance of connection to resilience The five parts of “serve and return” com- However, without the presence of a protec- and how this connection might have some munication are: tive responsive adult, children face unre- use for our legal community. 1. Notice the serve and share the focus lieved activation of the body’s stress man- At the spring benefit lunch for our lo- of attention agement system and they are set up for the cal Vermont Parent Child Center, I learned 2. Return the serve by supporting and worst of long-term consequences for learn- about Harvard’s Center on the Develop- encouraging ing, behavior and both physical and mental ing Child and their work with Vermont ba- 3. Give it a name! Identify words and health. bies and toddlers to boost resilience in our concepts kids. Studies of resilience show that stress 4. Take turns…and wait So what does this have kills learning and development. This re- 5. Practice endings and beginnings. to do with lawyers? search, at a high level, has a two-pronged approach: first, prevent toxic stress by en- The research shows, “responsive rela- In listening to the speaker from Harvard couraging healthy interactions and sec- tionships are both expected and essential, describe toxic stress, I scanned my life and ond, build resilience by focusing on execu- their absence is a serious threat to a child’s legal experience, recalling clients and fam- tive function development. Toxic stress in development and well-being.” What’s so ilies dealing with exactly the types of ad- children comes from extreme, frequent, or interesting about this finding is that not verse experiences she described. But then I prolonged adversity without the protection only is the interaction needed but the ab- found myself also thinking somehow about of a strong adult buffering relationship and sence of the interaction causes additional my own experience, not as a child, but as is linked to lifelong health effects includ- stress and harm. The stress hormones are a young attorney. I was a young, single ing high rates of diabetes, heart disease, activated and flood the brain, harming its mom trying to manage adulthood and le- suicide and obesity. The presence of toxic ability to develop new skills, reducing its gal practice (and attorney colleagues) at stress is also shown to interrupt executive current capabilities as well as potentially the same time. Yet much of my time was function development, which is needed for setting up future health effects. spent in a solo office figuring out things on successful progression of natural human On the other hand, a strong responsive my own. It felt insane. Each day I would try development as well as economic and so- relationship puts children on the road to to stuff new concepts into my head and it cial success. Thus, the first step in ensuring developing executive function, which in- seemed they had all fallen back out. resilience is to reduce toxic stress. cludes the development of working mem- What was going wrong? I had graduated ory, mental flexibility and self-control, all at the top of my class, but why was I be- Preventing toxic stress on the brain in coordination with each other. Working having like a stupid lawyer? I was stressed, through responsive interaction with memory permits us to be efficient, draw not from adverse experiences, but perhaps children on experience and access our mental store from a lack of “serve and return.” It wasn’t of learned facts and concepts. Mental flex- until I happened into a mentor that I could The most reliable factor in reducing toxic ibility goes beyond directing how we shift learn again. Then I made huge strides, had stress among children is consistent healthy or maintain attention, allowing us to take my first trial and appeal, and began to suc-

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www.vtbar.org THE VERMONT BAR JOURNAL • FALL 2019 3 7 ceed. When I heard about this research, and the neuronal growth never stops. riosity. When you return a serve, you telling me that the inability to build exec- Furthermore, there is nothing more criti- acknowledge their thoughts and con-

Be Well utive function through responsive relation- cal for success as a lawyer than razor sharp tributions are heard and understood. ships creates toxic stress in children, I be- executive function. We must have devel- Never getting a return is stressful and gan to wonder, could it have the same ef- oped at a pretty high level to have achieved causes efforts to communicate to be fect on the developing lawyer’s stress in admission to law school, but entering prac- associated with stress. the early career years. tice requires more development of these 3. Give it a name! This helps identify im- skills, and expansion of working memory portant concepts. It allows them to What could responsive relationships do and mental flexibility. It is a potentially vul- know that you see what they are fo- to promote well-being in the VBA? nerable (as well as exhilarating) time requir- cused on, and by providing the name ing more resilience and resistance to stress. or phrase, you help them understand This brilliant research is all in the context I propose that as a profession where the world around them and know of early childhood development–or early learning is required for success, we adopt what words to use. brain development. A completely separate the growing evidence in science that care 4. Take turns…and wait. Keep the inter- area of human neuropsychology, to be sure, of the mind requires active and intentional action going back and forth. Notice than adult neurology. And, the first years work, not merely of our own but in connec- who’s turn it is and understand that of practice in even the most stressful and tion to others. I further suggest that we who waiting is crucial. People learning new isolating law offices do not really approxi- serve as mentors and supervisors of new things need time to think. Turn-tak- mate the horror of many adverse childhood attorneys must surely bear some respon- ing gives them practice with develop- experiences that stunt child development. sibility for enabling or at least not threat- ing self-control in new situations and However, there are undoubtedly lessons ening the potential for the necessary de- helps them learn how to get along we can take away from the discoveries at velopment in our colleagues. To that end, with others in difficult ones. Practice Harvard. It is probable that if the human I hope you will join me in an experiment, with a trusted partner builds confi- brain needs continued outside stimulation trying out some brain tennis with your ear- dence and independence. with other humans to develop neurological ly career colleagues (and perhaps later ca- 5. Practice endings and beginnings - connections and sense of well-being in the reer ones, too). I’d love to hear whether it Notice when the they are “done” early years, that need continues into adult- makes a difference. and help, either with keeping them hood. Indeed, this need for interaction is Let’s take a second look at the five parts on task, wrapping up, moving on or being studied at the other end of life as a of serve and return communication--with mooting. This builds self-control and way to help stave off dementia–that is the new lawyers in mind: mental flexibility under duress. It also gradual loss of executive function–so why 1. Notice the serve and share the fo- builds trust that they can seek your not the entire lifespan? cus of attention. By noticing serves, help when they run into a challenge or We also know that the mind is most vul- you’ll learn a lot about their abilities, make a mistake. nerable during times of great develop- interests, and needs. You’ll encourage ment. Only recently have we begun to un- them to explore and you’ll strength- Feel free to contact me with any ques- derstand these periods of development en the bond between you. You can’t tions! Good luck! continue into the 30’s and possibly 40’s. spend all your time doing this, so look ______Studies show that growth of executive for small opportunities throughout Micaela Tucker, Esq. is Co-Chair of the function capacity continues at least to age the day to show you notice and share VBA Lawyer Well-Being Committee along 30 when most lawyers have entered or are in the experience. with Samara D. Anderson, Esq. entering practice. And now, scientists are 2. Return the serve by supporting and proposing that the elasticity of the brain encouraging their interests and cu-

38 THE VERMONT BAR JOURNAL • FALL 2019 www.vtbar.org by Teri Corsones, Esq. Vermont Bar Foundation Grantee Spotlight New Story Center

Continuing the tradition of highlighting a different Vermont Bar Foundation grantee in each Vermont Bar Journal edition, this edition will feature the NewStory Center in Rutland, Vermont. NewStory “is a non-profit human services agency that works to end the cycle of violence through support, education, prevention, and collaboration with all the people and communities of Rutland County.” Celebrating its 40th anniversary this Oc- tober, NewStory began its story in Rutland in 1979, when a small group of local women were determined to provide a safe haven for women fleeing domestic violence. NewStory Executive Director Avaloy Lan- ning and Development Director Jennifer Yakunovich explained that the 70’s were an era when domestic violence issues first emerged from the shadows. Before then, society tended to look the other way, or to consider domestic abuse as a private matter. The dedicated group of women in Rut- land opened the “Rutland County Battered Women’s Shelter” on Center Street, just down the street from the Rutland County Several of the Rutland area attorneys who have provided legal Courthouse, in a small space that originally assistance to NewStory Center survivors include (L to R) served as the municipal jail. Kevin Volz, Pamela Gatos, Michelle Kenny and Matthew Getty. From those humble beginnings, the organization grew significantly when the Sis- ters of St. Joseph, a Roman Catholic order for us, for our community, for survivors, to of nuns who educated thousands of Rut- take control of their narrative and write a land schoolchildren over the years, gifted a new story.” Another significance of the new large house on Grove Street to the group. name was to show that services are avail- Large enough to include 24 beds, the new able to all members of the community, and home for the organization later became that domestic abuse survivors include not known as “HerStory House.” As societal just women but all members of society. attitudes changed and new laws were en- A goal of the strategic planning process acted to address domestic violence, the re- was to learn from survivors what specific named “Rutland County Women’s Network services would be most helpful. That inquiry & Shelter” services grew to include a 24- led to an initial application to the Vermont hour crisis hotline, support groups, medical Bar Foundation for funding for direct legal advocacy, referrals to area resources, train- services for survivors. In its application, Jen- ings and technical assistance in addition to nifer Yakunovich wrote: “NewStory Center emergency housing. strives to meet the ever-evolving needs of Another major change in the organiza- our client population. In 2016, after many tion’s evolution took place in 2017, when years of noting qualitative feedback from times lack the financial resources to consult extensive strategic planning resulted in the clients who informed us that their legal ser- an attorney, the application also spelled out drafting of a new mission, vision and goals, vice needs were not being met, NewStory a process to maximize the legal services: including a decision to re-name the organi- Center took the proactive step to address NewStory staff will first evaluate a victim’s zation to better reflect its purpose. Avaloy this significant service gap.” The grant ap- need and decide if a referral to an attorney Lanning introduced the new name by ex- plication sought to secure funding to hire is an appropriate action. plaining its significance: “So as we move local lawyers on a reduced fee basis, so Referrals are decided based on the indi- forward, to our next chapter as an orga- they could counsel victims of domestic and vidual needs of the victim. The biggest fac- nization, we recognize that for too many sexual violence as they attempted to navi- tor in deciding whether to make a referral people and for too long a time, someone gate legal issues such as child custody, di- is the type of case. Divorce and child custo- else has been writing their story, control- vorce or parentage. Explaining that the vic- dy are the cases most likely to be referred ling their narrative. Not any longer. It’s time tims whom NewStory Center serves often- for an attorney consultation. If a referral is www.vtbar.org THE VERMONT BAR JOURNAL • FALL 2019 3 9 appropriate, an attorney will be identified, her attorney feeling confidently prepared ney by their side or simply say, ‘my attorney and the NewStory Center Systems Advo- against the defendant’s witnesses and evi- says’ takes the power away from the abuser cate will inquire about availability. NewSto- dence. She also left the courtroom smiling, and begins to place it back into the hands ry Center keeps an up-to-date list of attor- knowing that even if the outcome did not of the victim.” neys who have agreed to accept clients at go as she may have hoped, the scales were One of the attorneys who has provided the low bono fee of $60 per hour. NewS- more balanced in her favor, and she was in legal assistance to survivors through the tory assists with setting up an appointment control as best she could be in this stressful NewStory Center grant is Michelle Kenny, VBF Grantee Spotlight with the selected attorney. If it is found that situation,” according to NewStory. from the firm Kenny & Gatos, LLP in Rut- a victim is in need of more than one hour To date, 40 survivors have been able land. Attorney Kenny considers it a privi- of consultation, she/he will need to submit to receive legal assistance from local law- lege to offer her legal skills and expertise a request in writing and NewStory Center yers thanks to the Vermont Bar Foundation to assist those in need: “As attorneys we will reach out to the attorney to confirm grant. Avaloy notes: “All of the clients have have a special privilege of providing a sup- that this is the most appropriate action, found the consultations to be helpful and portive ear and a knowledgeable ally in a while respecting privilege and confidenti- felt that they received the knowledge they client’s determination to break the cycle of ality. Whereas the usual limit for hours per needed to make informed decisions. Most domestic abuse. The legal process itself case has been 2 – 3 hours, the limit can be importantly, these clients have taken back can be daunting and complex, and without increased to 6 hours in certain cases. some of the power that they lost while in proper assistance, many of those who de- Victims who were able to utilize the le- their abusive relationships.” sire change are less likely to reach a pos- gal services were so grateful and found the Avaloy and the NewStory staff are deep- itive outcome. Partnering with NewStory legal services to be so beneficial that ap- ly grateful to the Vermont Bar Foundation, to provide legal assistance to clients who plications were made for additional funding and to the Rutland lawyers who time and may not otherwise have reasonable access in 2017, 2018 and 2019. Assisted victims time again have provided legal assistance to to justice, is truly the least we can do. It include a male victim who was one of the the victims in need. They also suggest that is our obligation as attorneys, as commu- first people to take advantage of the VBF- the lawyers may not fully realize the incred- nity members and quite frankly, as humans. funded assistance. After an initial meeting ible impact that the representation has on Thank you NewStory for the work you do with the participating attorney, the attorney the survivors. “One of the most important and continue to do.” agreed to handle the victim’s divorce and goals of this project is to provide a sense of Many thanks also to all of the Vermont child custody case on a pro bono basis and confidence and empowerment to victims of lawyers whose interest earned in their IOL- a successful resolution was reached. Anoth- domestic and sexual violence. Victims have TA accounts help fund the Vermont Bar er recent success story was that of a female been told by their abusers over and over Foundation grants, including the grant survivor who was referred to a participating again that they do not matter, that no one awarded to NewStory Center of Rutland, attorney who offered the full six hours of will believe their story of abuse, and that Vermont. consultation. The attorney then offered to they will never succeed outside of the rela- ______further represent her at a reduced rate, and tionship. The ability to have someone who Teri Corsones, Esq. is executive director with the help of a family member’s financial truly listens and is working exclusively for of the VBA and serves on the promotions contribution, the client “was able to walk them can have profound impact on a survi- committee of the VBF. in to the court room for her hearing with vor. To walk into a courtroom with an attor-

Congratulations to the VBA Service Award winners Bob Paolini and Mike Kennedy.

Also Congratulations to Justice Marilyn Skoglund on her retirement and as recipient of the VBA President’s Award.

40 THE VERMONT BAR JOURNAL • FALL 2019 www.vtbar.org by Mark Bassingthwaighte, Esq. The Decision to Hire Contract Attorneys Should Never Be Just About the Money

Firms hire contract attorneys for a vari- torney may need to purchase his or her own the situation but consented to it in writing. ety of reasons, not the least of which is an coverage if they feel coverage is necessary. I say partially effective because there will attempt to control expenses. While reduc- I would suggest that coverage should be always be the possibility of a negligent hire ing expenses is a good thing, the financial mandatory if the contract attorney will be claim should any of the independent con- savings shouldn’t be the only issue in play doing things like appearing in court or tak- tract attorneys commit malpractice. Given as unintended consequences could follow ing depositions. It may not be necessary if this, appropriate risk management practic- if no thought is ever given to a few oth- there will never be any client contact and es are called for whenever utilizing the ser- er concerns. The issues that come to mind the hiring firm will be reviewing and ac- vices of contract attorneys. Adequate su- most readily for me are conflicts of interest, cepting accountability for the contract at- pervision and work product review are a accountability for work product, disclosure, torney’s entire work product. Regardless, given. Have the contract attorneys sign a and insurance coverage were an allegation always confer with your insurance carrier confidentiality agreement and instruct staff of negligence ever to arise. when thinking about hiring a contract at- to never discuss unrelated firm matters in Addressing these issues is problematic torney (or attorneys) so that the situation front of them. You would also be well ad- however, because the term “contract at- can be fully understood, documented, and vised to inquire into the background, edu- torney” means different things to differ- appropriately underwritten by the carrier if cation, and experience of every potential ent people. IRS definitions and regulations they are willing. contract attorney hire as well as ask about aside, contract attorneys can run the gam- The decision as to whether to use con- past claims or disciplinary matters prior to ut from fulltime “employees” who are held tract attorneys is not something that should making any hiring decision. out as members or associates of a firm to lie exclusively with the firm. Clients may or Perhaps the most significant issue with temporary part-time attorneys who never may not be comfortable with contract at- contract attorneys is the imputed conflict step foot within the walls of the firm. For torneys and thus clients should be includ- problem. Here the specifics of the work- the purposes of this article, I am going to ed in the decision-making process. Certain- ing relationship will matter. There is going focus on contract attorneys who will nev- ly our ethical rules require disclosure; but to be a real difference in how the conflict er be held out publicly as being associated ethical rules aside, whose matter is it? It’s problem plays between contract attorneys with the firm at which they are working. the clients. I would argue that clients fun- who will never step foot inside your firm’s Let’s look at the insurance coverage con- damentally deserve to know who will be physical space, have no access to firm files, cern first. Don’t assume that coverage for working on their matters due to confidenti- and will only work on one project for your contract attorneys under your existing poli- ality, competency, and financial concerns at firm verses contract attorneys who will work cy is a given. While some insurance compa- a minimum. Explain to your clients why the internally, will be employed there for an ex- nies make no distinction between “contract use of contract attorneys is necessary. Let tended period of time, will be working on attorneys” and “employed” attorneys, oth- them know who they are and what skill set multiple projects, and have access to the ers do. This means that some insurance they bring to the table. Then detail what firm’s client files. The issue can be further carriers will automatically add contract at- the savings will be and share the steps that compounded if any of the contract attor- torneys to your policy, once notice has will be taken to ensure that confidences will neys will also be working at one or two oth- been given and the appropriate amount be maintained. In the end, it’s all about reer firms at the same time. To minimize the of premium paid, and others will not. Why specting the attorney/client relationship. risk of unintended conflict problems aris- won’t they? One reason is that contract at- The accountability piece is an interesting ing, limit the contract attorneys’ access to torneys are often temporary and/or part- issue. Under agency principles, the firm is client files to the greatest degree possible. time and some firms hire quite a few. Do going to be liable for what the contract at- An isolated or off site work space coupled these part-timers have their own clients, to torneys do within the scope of their employ- with no access to the firm’s computer net- include other firms that they work for under ment. Sometimes firms will try to do an end work or the area where client files are main- contract? Is there frequent turnover of con- run around this concern and treat the contained can be an effective way to manage tract attorneys at the firm? In short, contract attorneys as independent contractors. the problem. In contrast, the greater the tract attorneys represent an unknown risk This may be partially effective if the con- degree to which any contract attorney be- to a malpractice insurance carrier. If your tract attorneys are fully independent (think comes integrated within a firm the greater insurance carrier will not extend coverage in accordance with the IRS definition) and the likelihood that all the conflicts this at- under your existing policy, the contract at- the client has not only been made aware of torney carries will be imputed to the firm.

WANTED: LEGAL FICTION Fancy yourself a fiction writer? The next Grisham? The Vermont Bar Journal is not just for scholarly legal dissertations! Call it a fiction contest or an active solicitation for your works of fiction, either way, if we love it, we may print it! Submit your brief works of legal fiction (6,000 words or less) to [email protected]. Our next deadline is December 1, 2019. www.vtbar.org THE VERMONT BAR JOURNAL • FALL 2019 4 1 Understand that this isn’t about how con- seminars throughout the United States, and legal or other professional advice or servic- tract attorneys are paid. It’s about length written extensively on risk management and es and this publication or document should of time in your employ, scope of the rela- technology. Check out Mark’s recent semi- not be relied upon as a substitute for such tionship with the firm, degree of client con- nars to assist you with your solo practice by legal or other professional advice or servic- tact, access to client files, the clients’ un- visiting our on-demand CLE library at alps. es. ALPS warns that this publication or docu- derstanding of the relationship, and the list inreachce.com. Mark can be contacted at: ment should not be used or relied upon as a goes on. [email protected]. basis for any decision or action that may af- The decision to use contract attorneys Disclaimer: ALPS presents this publication fect your professional practice, business or can be an appropriate decision that brings or document as general information only. personal affairs. Instead, ALPS highly recom- real value to your firm and the clients you While ALPS strives to provide accurate infor- mends that you consult an attorney or oth- serve. Just don’t rush into this for the ex- mation, ALPS expressly disclaims any guar- er professional before making any decisions pense savings alone because there can be antee or assurance that this publication or regarding the subject matter of this publi- unintended consequences that in the end document is complete or accurate. There- cation or document. ALPS Corporation and The Decision to Hire Contract Attorneys could prove more costly than if you had fore, in providing this publication or docu- its subsidiaries, affiliates and related entities never hired the contract attorneys in the ment, ALPS expressly disclaims any warranty shall not be responsible for any loss or dam- first place. of any kind, whether express or implied, in- age sustained by any person who uses or re- ______cluding, but not limited to, the implied war- lies upon the publication or document pre- ALPS Risk Manager Mark Bassingth- ranties of merchantability, fitness for a par- sented herein. waighte, Esq. has conducted over 1,000 law ticular purpose, or non-infringement. firm risk management assessment visits, pre- Further, by making this publication or sented numerous continuing legal education document available, ALPS is not rendering

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42 THE VERMONT BAR JOURNAL • FALL 2019 www.vtbar.org by Jill Rudge, Esq. Vermont Poverty Law Fellowship Update: Mental Health and Housing

“I appreciate you saying sorry modations of their disabilities, which would [about my situation]. I just wish make their tenancies more viable, often do ‘sorry’ could make a difference.” not invoke those rights until they are already facing adverse action. Clients with An aging client who was newly expe- subsidized housing often forgo colorable riencing homelessness said this during a counterclaims to stop their program ter- routine phone call one rainy Friday eve- mination or eviction and instead move out ning. She and I have been working togeth- with hopes of preserving their rental histo- er for several months on eviction, rental ry and rental assistance. For all clients, ev- assistance, emergency housing, disabili- ery move lowers the chances that they can ty benefits, and discrimination cases. She secure their next apartment. is separately litigating family and criminal If clients experience homelessness, their court matters. This is a client who does not resulting compromised health makes their want or appear to be eligible for transi- housing search all the more difficult to man- tional, residential, or hospital setting treat- age. This tracks national Housing First evi- ment. However, for her, living and access- dence that stable housing is the gateway to ing health care in the community setting physical and mental health (in contrast to means navigating a complex web of social our previous approach that required physi- chance,” or more time to increase com- services, a nearly impossible rental market, cal and mental health before a chronical- munity mental health and housing sup- and their intersections with her psychiatric ly homeless person was deemed ‘ready’ to ports that are reasonably likely to remedi- disabilities—often with legal conflict and be housed). Homelessness and health de- ate tenancy issues. If the client has access now from a position of homelessness. I as- compensation increase clients’ risk of hos- to case management, my strategy focuses sured her that I was here for her and that pitalization or incarceration. These institu- on close collaboration with the client and we could keep fighting. She wished me a tional settings are overburdened and are the designated mental health agency staff good weekend, which she would spend our most financially and socially expensive to augment the client’s care plan. If the cli- outside in the rain. (and harmful) shelter/care settings—costs ent does not have access to case manage- Hers are just some examples of the reali- borne by individuals and communities as ment, my strategy involves investigating ties faced by low-income Vermonters with well as the state. The ADA requires states the client’s private health information for intersecting mental health and housing to provide mental health services to people evidence and arguments that they meet el- challenges. As I complete my first year as with disabilities in the most integrated set- igibility criteria. the sixth Poverty Law Fellow, the reasons tings appropriate to their needs. However, In either scenario, the available avenues why mental health and related housing is- clients’ lack of housing is often a barrier to do not do enough to help clients with seri- sues were identified as the access to jus- exiting Vermont’s institutional settings, as ous psychiatric disabilities reach their iden- tice issue for 2018-2020 are more apparent are the limited resources constraining Ver- tified goals of being healthy and housed. than ever. mont’s delivery of community-based men- When a client presents with a goal of get- Building on the experience of the pre- tal health services. ting a ‘second chance’ to stay housed, the vious fellows, I began my fellowship by Clients who have access to community bulk of the work to make that accommoda- speaking with a wide range of organiza- mental health care and associated housing tion “reasonable” rests with the client and tions and individuals involved at the inter- supports are working with case managers the case manager. Service enrollment, re- section of mental health and housing, hear- who juggle heavy caseloads, tight sched- lationship building, motivational interview- ing their concerns and recommendations ules, low wages, and high turnover. One- ing, case planning, and treatment imple- for change, and seeking suggestions for to-one case management in the communi- mentation is nuanced and time-consuming others I should contact. I also began repre- ty setting is often only available to those work, and it takes longer to meaningfully senting individuals statewide with diverse who have already experienced significant remediate problematic disability-related legal problems, narrowing in on a few prac- periods of institutional care. This means behaviors than landlord/tenant, fair hous- tice areas which might become the focus that many low-income Vermonters experi- ing, and anti-discrimination laws provide. of my second year. With every new client I encing mental illness have not yet been in- Thanks to your support, the fellowship is represent, and every stakeholder I consult, stitutionalized ‘enough,’ are not yet home- allowing me to grapple with these urgent I observe wide gaps between the available less ‘enough,’ or have not decompensated and difficult-to-resolve issues faced by so legal solutions and my clients’ urgent hous- ‘enough’ to become eligible for the com- many low income Vermonters, and to col- ing and mental healthcare needs. munity mental health care and housing laborate on creative solutions to individual My housed clients often experience diffi- supports that they need to become and re- cases and on a systemic level in my second cult relationships with landlords and neigh- main stably housed. year. So far, my fellowship has helped pre- bors, as they struggle to keep up with un- By the time a mental health-housing vent evictions, preserve subsidies, unlock affordable rent, maintain their apartments, case comes to me (or my awe-inspiring col- access to services and benefits, and secure and monitor and tolerate disability-related leagues at Vermont Legal Aid and Legal criminal records expungements for clients behaviors in old, dense, and sometimes Services Vermont), I am often advocating in at least seven counties statewide. I have segregated settings. Clients with fair hous- for a reasonable accommodation of the cli- established working relationships with and/ ing and ADA rights to reasonable accom- ent’s disabilities in the form of a “second or delivered trainings to at least six desig- www.vtbar.org THE VERMONT BAR JOURNAL • FALL 2019 43 nated mental health agencies, as well as munities. For my second year, my goal is I am so grateful for this opportunity to be hospitals, statewide. I have also partici- to identify an impact project that will help part of improving access to justice for low pated in trainings, conferences, and stake- close these gaps between Vermont’s men- income Vermonters with mental health and holder meetings with partners dedicated to tal health care system, our affordable hous- housing challenges. I hope for your con- making our housing and mental health sys- ing system, and landlord/tenant, fair hous- tinued support as I begin my second year. tems work better for individuals and coming, and anti-discrimination laws. Thank you! Access to Justice Campaign

VT Poverty Law Fellowship Update The Vermont Bar Foundation’s Access to Windham County Bar Associations for their CALEDONIA Justice Campaign has completed its 2018- continuing support. Vermont Attorneys Ti- Anonymous 2019 fundraising. Since 2008 the VBF has tle Corporation continued their match for Maria Byford, Esq. funded a Poverty Law Fellow, each for a first-time donor’s contributions and our James C. Gallagher, Esq. and Susan two-year term. Thanks to all of you who Judges met their own challenge of raising Maryellen Griffin, Esq. support this important work by contribut- $10,000. Zuccaro & Willis, P.C. ing during this campaign. You can find a We would also like to thank Halvorson’s list of the five prior Poverty Law Fellows, in Burlington for hosting the Chittenden CHITTENDEN and the current Fellow, and a description County Justice Fest event. Anonymous of each of their projects on the VBF’s web- Fritz Langrock and Bonnie Badgewick Sam Abel-Palmer, Esq. site.1 will be co-chairing the 2019-2020 Cam- Ernest Marvin Allen, III, Esq. The VBF is proud that Jill Rudge is the paign. If you are interested in volunteering Eric Avildsen, Esq. and Faith Ingulsrud current Poverty Law Fellow. Jill, who is be- please contact Deborah, Fritz or Bonnie. Gretchen S. Bailey, Esq. ginning the second year of her fellowship, Amber Barber, Esq. has spent the past year working on hous- LEADERSHIP DONORS Barber & Waxman ing-related problems for low-income cli- ($7,500 - $10,000) Jessa and Justin Barnard, Esqs. ents with mental health concerns. Jill has Dinse Bauer Gravel Farnham LLP worked on cases that involve (a) the need Downs Rachlin Martin PLLC Ben & Jerry’s Foundation, Inc. for more housing-focused mental health Langrock Sperry & Wool, LLP Leo Bisson, Esq. support, (b) disability discrimination in Primmer Piper Eggleston & Cramer PC Rich Cassidy Law, P.C. long-term care facilities, and (c) access rea- Vermont Attorneys Title Corporation Clark, Werner & Flynn, P.C. sonable modifications of rules and proce- Daly & Daly, P.C. dure in the mental health/housing social 2018/2019 Campaign Beth Danon, Esq. services and legal systems. She has co-de- Contributions Jeff Dickson, Esq. livered training at the Howard Center on Judith F. Dickson, Esq. these issues and is planning trainings for ADDISON Dinse Northwest Counseling and Support Servic- Addison County Bar Association Timothy Doherty, Esq. es in Franklin County. In the coming year Elijah Bergman, Esq. Downs Rachlin Martin PLLC she is working to schedule trainings with Kathleen M. Boe, Esq. Stephen D Ellis, Esq. the UVM Medical Center and Washington James F. Carroll, Esq. and Nancy Tim Eustace, Esq. County Mental Health Services. Deppman Law PLC John Evers, Esq. Jill, like the Poverty Law Fellows before James A. Dumont, Law Ofc. of Tom Getz, Esq. her, has made the most of her opportuni- Richard P. Foote, P.C. Michael Green, Esq. ty and has been doing important work for Judson Hescock, Esq. Mark G. Hall, Esq. people who need access to justice. Katherine Burghardt Kramer, Esq. Richard Hecht, Esq. The access to justice for those who need Langrock Sperry & Wool, LLP Glenn A. Jarrett, Esq. it provided by the Fellows is important Fritz Langrock, Esq. Christopher Jernigan, Esq. both on a case by case level, but also in Pamela A. Marsh, Esq. and Larry Maier Jeffrey P. Johnson, Esq. and bringing needed attention to these under- Amy Menard, Esq. Mary P. Kehoe, Esq. served communities and the difficult legal Karl W. Neuse, Esq. Douglas G. Kallen, Esq. issues that confront them. Michael Palmer, Esq. Gary Karnedy, Esq. The Fellowship has also benefited the Benjamin Putnam, Esq. Keith Kasper, Esq. Vermont legal community by successfully James Runcie, Esq. John Kassel, Esq. attracting excellent young lawyers to Ver- Y. Dave Silberman, Esq. Michael Kennedy, Esq. mont who make it their home and continue Sarah Star, Esq. Eric M. Knudsen, Esq. to work in public service. All five prior fel- F. L. Kochman, Inc. lows have made lives here in Vermont and BENNINGTON W. David Koeninger, Esq. all are continuing to make valuable contri- Anonymous Kohn Rath Danon Lynch & Scharf, LLP butions to their communities. Raymond Bolton, Esq. Pamela Kraynak, Esq. We thank Deborah Bailey for her dedi- Peter M. Lawrence, Esq. Michele Kupersmith, Esq. cation and all her hard work on the Cam- McClintock Law Office, PC K. Michael Kurt, Esq. paign. We thank Campaign Co-Chairs Fritz Kirsten Morgan, Esq. Martin Lalonde, Esq. Langrock and Erin Gilmore and all of the Bradley D. Myerson, Law Offices Langrock Sperry & Wool, LLP attorneys on the Campaign committee for Whalen, Hand & Gilmour, PLC Marjorie Lipson their tireless work on the Campaign. John H. Williams, II, Law Ofc. of Kevin Lumpkin, Esq. We also thank the Addison, Rutland, and Jacqueline Majoros, Esq.

44 THE VERMONT BAR JOURNAL • FALL 2019 www.vtbar.org Maley and Maley PLLC Gregory Howe, Law Ofc. of Patricia A. Killigrew, Esq. Access to Justice Campaign Zachary Manganello, Esq. Massucco Law Offices, P.C. Andrew Manitaky, Esq. RUTLAND Kerry McDonald-Cady, Esq. David McColgin, Esq. Carolyn B Anderson, Esq. Phillips, Dunn, Shriver & Carroll, PC McCormick, Fitzpatrick, Kasper & Mary C. Ashcroft, Esq. Jennifer Rowe, Esq. Burchard, P.C. Katelyn B. Atwood, Esq. Laurie A. Rowell, Esq. Devin McKnight, Esq. Matthew Getty, Esq. Salmon & Nostrand Law Offices McNeil, Leddy & Sheahan, PC Jay Kenlan, Esq. Diane Shamas, Esq. Christopher McVeigh, Esq. Kenny & Gatos, LLP Windham County Bar Association Meyer Family Fund Glenn Morgan, Esq. and Betsy Mickenberg, Dunn, Lachs & Smith, PLC Ogden Law Offices, P.C. WINDSOR Andy Mikell, Esq. Kimberly Pritchard, Esq. Anonymous Eric Miller, Esq. Readnour Associates, P.C. Irina Anta, Esq. Renee Mobbs, Esq. Rutland County Bar Association Patricia G. Benelli, Esq. NorthEast Estates and Trusts, PLLC S. Mark Sciarrotta, Esq. Liz Ryan Cole, Esq. Elizabeth Novotny, Esq. Morris Silver, Esq. and Tobi Anne Day, Esq. Thomas C. Nuovo, Esq. M. Kate Thomas, Esq. Joanne Ertel, Esq. Paul Frank + Collins PC John Welch, Esq. Erin Jacobsen, Esq. Fred Peet, Esq. Elizabeth Kruska, Esq. Peter Potts, Esq. WASHINGTON C. Robert Manby, Jr., PC Primmer Piper Eggleston & Cramer PC Brian M. Amones, PC Marsicovetere & Levine Law Group, P.C. Barbara Prine, Esq. Bridget C. Asay, Esq. Brian Porto, Esq. Todd Schlossberg, Esq. Kristina L. Bielenberg, Esq. Ronan Law Group, PLLC Lila Shapero, Esq. Patrick L. Biggam, Esq. Jan Sensenich, Esq. Sheehey Furlong & Behm P.C. Paul R. Bowles, Esq. Carol Stamatakis, Esq. Tom Sherrer, Esq. Gavin Boyles, Esq. Vitt & Associates, PLC Meghan Siket, Esq. Danforth Cardozo, Esq. Kinvin and Deborah Wroth Shapleigh Smith, Esq. Charity Clark, Esq. Jan Spitzen, Esq. Therese Corsones, Esq. OUT OF STATE Stetler, Allen, Kampmann & Sussman Darby Kolter & Nordle, LLP Attorneys’ Liability Assurance Society Strouse & Bond PLLC (Waterbury Ofc.) Thomas Bell, Esq. Paulette Thabault, Esq. Mary L. Desautels, Esq. Christopher M. Bennett, Esq. Jason R. Tiballi, Esq. Mark DiStefano, Esq. Alan P. Biederman, Esq. Gordon ER Troy, PC Mike Donofrio, Esq. Connecticut Attorneys Title Vermont Attorneys Title Corporation Michael Durkin, Esq. Insurance Company von Stange Law PLC Geoffrey M. FitzGerald, Esq. Justin Drechsler, Esq. Barbara Waters, Esq. Devon J. Green, Esq. Mary B. Granger, Esq. Marcus Webb, Esq. Petra Halsema, Esq. Will Irwin, Esq. and Fran Jeffrey Wick, Esq. Jacqueline A. Hughes, Esq. Elise Keys, Esq. Marc E. Wiener Law Offices, PLLC Bernard D. Lambek, Esq. Pamela P. Little, PLLC, Law Ofc. of Mike Wool, Esq. Annemarie Manhardt, Esq. Anne Locke, Esq. Peter F. Young, Esq. Martin & Delaney Law Group Martin, Harding and Mazzotti, LLP Wendy Morgan, Esq. D. Michael Mathes, Esq. and Marcia FRANKLIN/GRAND ISLE Laura Murphy, Esq. Alexander Meiklejohn, Esq. Helene Brizinsky, Esq. Jennifer Myka, Esq. Polivy & Taschner, LLC Edward Carroll, Esq. Susan M. Palmer and Christopher Jeffrey Richard Polivy, Esq. Nicholas Hadden, Esq. Karen Richards, Esq. Raphael J. Roman, Esq. Kissane Associates Daniel P. Richardson, Esq. Christine and Jacob Speidel, Esqs. George E. Spear, II, Esq. Lila M. Richardson, Esq. and Allen Gilbert Andrew V. Urbanowicz, Esq. Edward J. Tyler, III, Esq. Alan Rome, Esq. Thomas Valente, Esq. Phyllis Rubenstein, Esq. Hon. Peter Welch and Margaret Cheney LAMOILLE Theriault & Joslin P.C. Kevin Wickless Law, LLC Timothy Sargent, Esq. and Bethany Patricia Turley, Esq. Elizabeth Woodcock, Esq. Stevens Law Office Emily Wetherell, Esq. Ashley W. Taylor, Esq. Wilschek Iarrapino Law Office, PLLC JUDICIARY Sophie Zdatny, Esq. Hon. Colleen A. Brown ORANGE Hon. Lawrence H. Bruce M. Robin Barone, Esq. and Sydney Lea WINDHAM Hon. Brian Burgess Genevieve W. Faherty, Esq. David B. Brown, Esq. Hon. Tom Carlson and Nancy Gay & Lesbian Fund of Vermont, Inc. Cady & Dugan, P.C. Hon. Karen R. Carroll and Rich Victoria Lloyd, Esq. Joseph Cook, Esq. Hon. John M. Conroy Henry Vogt, Esq. Costello Valente & Gentry, P.C. Hon. Cortland T. Corsones and Therese Wynona I. Ward, Esq. Crispe & Crispe Hon. Thomas J. Devine Jeremy Dworkin, Esq. and Bidi Hon. Theresa DiMauro ORLEANS Fitts, Olson & Giddings, P.L.C. Hon. John Dooley and Sandra Robert B. Chimileski, Esq. Thomas French, Esq. Hon. Thomas S. Durkin Vincent J. Dotoli, Esq. David Gartenstein, Esq. Hon. Harold E. Eaton, Jr. www.vtbar.org THE VERMONT BAR JOURNAL • FALL 2019 45 Hon. David Fenster TRIBUTE GIFTS In Memory of Judge McCaffrey Hon. Susan L. Fowler Hon. Cortland Corsones and Therese Hon. Brian J. Grearson In Honor of Mary Ashcroft, Esq. Hon. David Howard Hon. Kevin W. Griffin M. Kate Thomas, Esq. Hon. Michael Kupersmith Hon. Michael Harris Hon. Katherine A. Hayes In Honor of Pat Barr and Rolf Sternberg In Memory of Robert Reis, Esq. Hon. Sam Hoar and Eve Peter M. Lawrence, Esq. C. Robert Manby, Jr., PC Hon. David Howard Hon. Christine Hoyt Directed by Eileen Blackwood & In Memory of Paul R. Rexford Access to Justice Campaign Hon. Alicia Humbert Lynn Goyette Robert B. Chimileski, Esq. Hon. Michael Kainen Gay & Lesbian Fund of Vermont, Inc. Hon. Howard Kalfus In Memory of Zander Rubin, Esq. Hon. Michael Kupersmith In Honor of Linda Bryan Hon. Walter Morris Hon. Joseph M. Lorman M. Robin Barone, Esq. and Sydney Lea Hon. Ellen H. Maloney In Memory of Barbara and Hon. Elizabeth Mann In Honor of Captain Christopher S. Dugan Jerry Schlossberg Hon. Robert A. Mello Cady & Dugan, P.C. Todd Schlossberg, Esq. Hon. Walter Morris Hon. John Pacht In Memory of Ralph A. Foote In Memory of Scott Skinner, Esq. Chief Justice Reiber and Sandi D. Michael Mathes, Esq. and Marcia Bernard D. Lambek, Esq. Hon. Christina Reiss Phyllis Rubenstein, Esq. Hon. Beth Robinson and Kym Boyman In Memory of Robert Gaston, Esq. Hon. D. Justine Scanlon Alan Rome, Esq. Dedicated to Hon. Silvio T. Valente Hon. Kirstin Schoonover and Thomas Valente, Esq. Hon. Brian Valentine Dedicated to Judy & Mike Glass Hon. Mary Miles Teachout George E. Spear, II, Esq. In Honor of Wynona Ward and HJWT Hon. Timothy B. Tomasi Patricia A. Killigrew, Esq. Hon. Helen M. Toor In Memory of Professor Gil Kujovich ______Hon. John Treadwell Zachary Manganello, Esq. 1 https://vtbarfoundation.org/programs/pover- Hon. Nancy Waples ty-law-fellowship/ Hon. John P. Wesley

46 THE VERMONT BAR JOURNAL • FALL 2019 www.vtbar.org by Michael LeVangie, Esq. Mediation - Evolving Methods Exploring the Three Basic Types of Mediation

There are “types of” mediation? I hear tion and how do they differ? Facilitative Mediation this all the time when first discussing a pro- The active participation of parties in posed mediation with counsel or the par- crafting an optimal solution to conflict is In facilitative mediation, the mediator ties in an unrepresented session. When dis- the primary distinguishing characteristic will often not make recommendations or cussing the potential mediation of an exist- of mediation versus formal litigation in the give advice. Instead, the mediator typically ing conflict we must first learn the underly- courts or private arbitration. In litigation, holds sessions with the parties asking ques- ing relationships and goals of the parties. the parties direct all communications to a tions and engaging in a conversation to un- Only then can an appropriate method of judge, jury, or arbitrator who then unilater- derstand their point of view and interests. assistance be employed by the mediator. ally decide how a case will resolve. In medi- The mediator’s goal is to help direct the Most people seeking mediation services ation, the parties assume a far more active parties to a resolution based on informa- for the first time are doing so in search of role in crafting the solution to their conflict. tion and understanding. less contentious, more cost-effective solu- Though all types of mediation share this At a basic level, interpersonal conflict tions to conflict. The threshold factors in fundamental distinction from adversarial arises when people or entities have dif- assessing whether a particular situation is litigation, three main types of mediation ferent interpretations of a factual scenar- ripe for mediation are the readiness, will- have emerged as dominant (1) Facilitative io and the responsibilities which flow from ingness, and ability of all parties directly in- Mediation, (2) Evaluative Mediation, and that event or events. Some conflicts (e.g., volved in the conflict to be open and listen (3) Transformative Mediation. Each of these an auto accident) involve a single event, to divergent points of view, and to actively mediation types differ as to the needs of while others (e.g., a marital relationship) participate in arriving at a negotiated reso- the parties, the role of the mediator, and have unfolded over a significant period of lution to conflict. the overriding goal of mediation. time. These situations become a conflict to So what are these three types of media- the parties when they are interpreted in a way that violates notions of how the other Three Types of Mediation party or parties “should have” conducted themselves during the past event or series Type of Mediation Party Goals Mediator Role Desired Outcome of events. FACILITATIVE Parties need an in- Direct constructive Mutual understanding In many cases, these ideas of what termediary to fos- reasoned exchange and agreement “should have” happened in the past vio- ter constructive between the par- late deeply held notions that have become communication ties with focus an integral part of one’s perceived “self”. and exchange. on disputed and To the extent this is the case, a party will agreed issues and manifest a strong interest in protecting that likely outcomes. sense of self and will react defensively, and often aggressively, when other parties in- EVALUATIVE Evaluation of rela- Extract detailed Increased understand- volved in the conflict attempt to justify, or tive positions on basis for positions ing of complex issues merely explain, their past actions. disputed issues of and provide neutral by the parties leading These dynamics involving self-protection a complex nature, evaluation of likely to resolution or frame- manifesting in defensive reactions may de- legal, scientific,outcome and basis work for further action mand a neutral intermediary who can ef- etc. while providing al- toward resolution. fectively diffuse this tension to a point at ternative strategies which direct, constructive exchange be- for resolution or tween the parties becomes possible. In this further evaluation case, the mediator assumes a facilitative TRANSFORMATIVE Resolution of con- Neutral evaluation Positive long term rela- role in fostering constructive communica- flict while main- of conflict between tionship between par- tion between the parties. This role is at the taining on-going the parties with ties presently in con- heart of facilitative mediation. relationships be- understanding of flict, resolution of cur- tween the parties. their ongoing and rent conflict, and cre- Evaluative Mediation future relationship ation of agreed plan for needs and desires. future issues in relation- Evaluative Mediation is similar to dis- Explore the parties’ ship. cussions during a settlement conferenc- relationship and es before the parties go to trial. The me- needs/wants of all diator will generally take a more directed to assist in craft- approach, advising the parties about the ing plan to resolve strengths and weaknesses of their case and current conflict and making recommendations. The mediator means for address- will meet with the parties separately and ing future interac- may also meet with their attorneys sepa- tion. rately while directing discussions toward resolution based upon likely outcomes. www.vtbar.org THE VERMONT BAR JOURNAL • FALL 2019 4 7 In this category of mediation, the chal- which so often occurs in problem-solving Real Life Examples – When Do We lenges standing in the way of a negotiated mediation. Transformative mediation in- Use A Particular Mediation Type? resolution have less to do with interperson- stead puts responsibility for all outcomes al dynamics between the parties, and are squarely on the parties in the dispute by Facilitative - The Parts Supplier and The more related to a lack of clarity in likely fu- directing them to take ownership of the is- Manufacturer ture outcomes of the relative positions held sues and work to create a mutual resolution When entering into mediation where we by each party. In evaluative mediation, the or plan for addressing conflict. anticipate a Facilitative approach it is often role of the mediator draws on their profes- Transformative Mediation is best suited helpful for counsel to address certain areas sional expertise in being able to provide to parties who are interested in seizing the with their client prior to mediation and for

Mediation - Evolving Methods parties with a more clear understanding of potential inherent in a current conflict, and the mediator to delve into these issues fur- the merits of their respective positions and using that potential as a springboard for ther as part of assisting the parties toward why a litigated outcome is likely to result in relationship growth. Parties explore these an agreed resolution of their dispute. a particular end result. higher ideals in transformative mediation in • How did the dispute start? Evaluative mediation is more common- addition to resolving the practical and legal • Why did it accelerate or fester? ly invoked in situations involving complex aspects of their underlying dispute so they • Was it through neglect or is there factual scenarios. In such cases, the parties more effective continue an ongoing or an- some antagonist? lack a clear, mutual, understanding of what ticipated relationship. • Who do you view as the victim and arguments are likely to succeed under cur- As alluded to earlier, factual scenarios why? rently prevailing case and statutory law in a tend to rise to the level of “conflict” when • What might have been done to avoid particular venue. With clarity provided by they are interpreted in a way that violates the initial dispute and its deepening? the evaluative mediator, the parties are as- one or more party’s notion of “right and • What are the benefits and downsides sisted in reaching a level of clarity as to like- wrong,” or “good and bad” and other du- of settling? ly outcomes that will position them to ne- alistic notions that may contribute to one’s • Whose interests are served by continu- gotiate a resolution of their dispute while core sense of self, commonly referred to as ing the fight and why? avoiding more costly and contentious liti- “ego.” The transformative potential inher- • What is needed in a settlement to sat- gation. ent in conflict begins with an understand- isfy your interests? ing that these dualistic notions are the re- Transformative Mediation sult of learned conditioning that in most These types of questions may not have cases long precedes the present factual much use or relevance to how issues may Transformative mediation goes beyond scenario giving rise to the current conflict be presented at trial, but they are central facilitative. The goal is to empower the par- between the parties. to the Facilitative mediation process. By ties to come to their own resolution. The In this way, conflict manifests a unique asking your client to answer these ques- mediator helps them recognize each oth- opportunity for parties to challenge and tions thoughtfully from both their, and the er’s needs, interests, values and points of transcend many core beliefs they may opponent’s, perspective, empathy is ac- view. The parties control both the process come to view as having significantly limited tively cultivated and common ground often and the outcome and the mediator follows their past experiences, as well as adverse- comes to the surface. These areas are the their lead. ly tainted past interpersonal relationships. building blocks for a productive Facilitative The transformative approach to media- The transformative mediator works to mediation. tion does not seek resolution of the imme- create a mediation environment in which all One of my favorite examples of a suc- diate problem, but rather, seeks the em- parties feel safe and comfortable enough cessful Facilitative mediation involved a powerment and mutual recognition of the to feel, articulate, and explore the anteced- small family-owned supplier of automotive parties involved. In this context, Empow- ents of, and reactions to conflict on a deep- components to a multinational auto man- erment means enabling the parties to de- er level. In so doing, parties will often come ufacturer (Small Co) and a multinational fine their own issues and to seek solutions to realize the way, and/or degree to which, manufacturer of consumer goods (Big Co), on their own and Recognition means en- they reacted to the other parties may be who was interested in attempting to lever- abling the parties to see and come to un- the result of habitual reactions acquired in age its product expertise in the U.S. auto derstand the other party’s point of view -- response to situations that occurred much market. Small Co. and Big Co. entered into to understand how “the other side” define earlier with little or no temporal relation- an agreement where Small Co would as- the problem and why they seek the solu- ship to the current parties or conflict. sist Big Co with entry into the auto industry tion they do. (Seeing and understanding, A transformative mediator works with market through marketing and consulta- it should be noted, do not necessarily con- parties to heighten their understanding tion. In the second year of the relationship, stitute agreement with those views.) Often, and awareness of learned conditioning and Big Co terminated the contract and Small empowerment and recognition pave the habitual reactions. In so doing, the goal is Co immediately sued for breach. The divi- way for a mutually agreeable resolution of for parties walk away with a heightened re- sive forces of litigation took hold, positions the parties’ current conflict, but that is of- alization that their current decisions and fu- hardened, and the chances for constructive ten only a secondary effect. ture actions need not be dictated by long- dialogue between the parties diminished. The primary goal of transformative me- held learned conditioning. In these ways, Within the first hour of mediation, Small diation is to foster the parties’ empower- parties leave mediation with significantly Co’s young, second generation CEO voiced ment and recognition, enabling them to heightened self-understanding, as well as his belief that Big Co, who approached approach their current problem, as well as an experienced sense of freedom resulting Small Co in the first place must have done later problems, with a stronger, more open from the loosened grip of formerly long- so with ill intent and a ‘plan from the start’ view. It should be noted that achieving em- held, entrenched beliefs, and a plan for to use them as a shill to find a better op- powerment and recognition is assessed in- addressing their current and future “con- portunity rather than as a trusted partner. dependently of any particular outcome of flicts.” This was the first anyone in the room, in- the mediation. This approach avoids the cluding Big Co’s CFO and its counsel, had problem of mediator directed resolution heard about these suspicions. (often seen as coercion by the parties), Big Co’s CEO sincerely apologized for

48 THE VERMONT BAR JOURNAL • FALL 2019 www.vtbar.org any misunderstanding and explained that sis, the protest was withdrawn. In fact, shortly after mediation a small dam Mediation - Evolving Methods after the first year, its project team knew broke on a pond on the farm and flood- the automotive market was outside of their Transformative – The Cows and The City ed part pf the neighbor’s yard. This time core competency and it was a mistake for Folk they not only talked about it – they worked them to maintain efforts attempting to de- Transformative mediation is best suited together to fix the dam and the flooded velop. Big Co simply wanted to sever the to a dispute where the parties will continue area near the neighbor’s home. Their rela- relationship with whole industry – not Small in a relationship of some sort after and de- tionship was transformed from distrusting Co, in particular – and thought they did so spite of the dispute presently before them. strangers to neighbors and they both an- in a manner designed to avoid too much This is true most marital cases and disputes ticipate a long congenial relationship. disruption to Small Co’s supply chain. Small between businesses over a specific issue Co’s CEO requested a one-on-one meeting but where their relationship will continue in Conclusion with Big Co’s CEO (without lawyers) and the future. It also has a place in an increas- the case settled before lunch. ing area of conflict here in Vermont – fam- A good mediation is not about ‘splitting As the mediator, I learned from this ex- ily farms and “city folk” moving to the area. the baby’ – King Solomon has no place at ample the value of facilitative sessions A dairy farmer and her new neighbor the mediation table. A meaningful media- where the parties, rather than their coun- were in a dispute over manure storage and tion is the use of a neutral third party who sel, are actively engaged. The example also spreading. The neighbor said when she employs an appropriate approach to aid illustrates the value of alternative settings bought her house in January everything parties in a dispute to reach a reasonable for negotiation in addition to the plenary was fine but come summer she was upset conclusion. The next time you are faced and caucus sessions. The clients in this case about the odor emanating from the farm with a dispute, yes – consider mediation, were well prepared by their counsel to un- next door. The farmer was beyond angry but do so only after evaluating your client, derstand how separate discussions beat “the city folk” for complaining to oth- your dispute, and goal for resolution. Rare- tween the clients, with or without counsel er neighbors, the police, and several town ly is a dispute truly one sided. The story be- or the mediator, can break through barriers and state officials instead of just walking hind the dispute is always greater than we and facilitate progress. over and talking to her. see at first blush. By engaging in a mean- They came to mediation without coun- ingful preparation and mediation we can Evaluative – The Government Bid and sel after a referral from their town clerk. actively assist in resolving conflicts faster, The Contractors We first spent time finding areas where more fairly, and more economically. Evaluative mediation is the most com- we all agreed. The farm was beautiful and ______mon form of mediation for civil and busi- well maintained and was, in fact, one of Michael J. LeVangie, Esq. is with Resolu- ness litigation practitioners. During media- the reasons the new neighbor purchased tion Arts in St. Johnsbury and remains Of tion the mediator gives at least one of the their property. They both admitted neither Counsel with the national boutique litiga- parties opinions on the merits of a legal had ever gone next door to meet the oth- tion firm LeVangie Law Group, LLP with of- claim or defense, possible settlement, the er. The farmer admitted that she saw the fices in CA, NV, OR, and VT and is licensed likely outcome or value of a case if it adju- new neighbors and decided they weren’t in VT and CA. dicated, or some other area where the me- ‘her type’ of people the day the drove in – diator makes a conscious step from facilita- based on their car alone. tion to evaluation. We were then able to find areas of agree- An example of Evaluative mediation we ment and understanding unrelated to their recently concluded involved the protest of position as neighbors before moving on a multi-million dollar contract award on a to their mutual love of the area and desire security equipment contract for a govern- to maintain its rural character. After a four mental entity. The protest, among other hour mediation, the farmer agreed to give things, challenged the product team’s cost/ all her neighbors, not just the new one, technical tradeoff. Acting as the mediator notice and change the timing of her ma- at the parties’ mutual request, I conducted nure spreading and some other farm prac- a series of discussions with the parties and tices. The neighbor gained an understand- their counsel, both jointly and individually. ing of farm work and necessary practices, During those sessions I provided neutral financial pressures, and the farmer’s con- evaluation regarding the likelihood of suc- tributions to their community. As a result cess of the protest on the merits as well as of mediation, both were able to come to of the potential remedies that might be or- an agreement that ended their battle over dered in an adjudication. During extended manure. They also made a plan for han- discussions with the protester and interve- dling any future complaints, which started nor we identified risks that might result in with talking (face to face). the event of an ordered re-bidding or re- A few months after the mediation, I was evaluation, and suggested they consider driving by the farm and stopped in to see settling the protest by means of a negotiat- how things were going. The farmer was on ed subcontract between the two firms. This her porch and came down to meet me. I suggestion was adopted, and under the asked how things were on the farm and negotiated subcontract, the protester was how things were with the ‘city folk’? She to perform those portions of the work for looked at me and laughed – she said since which its proposal was rated highest tech- the mediation they now share dinner with nically. The Government thus realized the each other, alternating Saturday nights dual benefit of having its work performed each week and those ‘city folk’ now help by the best team technically and paying a her out with fence mending and a few oth- reasonable, competitive price. On this ba- er chores while she plows their driveway. www.vtbar.org THE VERMONT BAR JOURNAL • FALL 2019 4 9 by Michael LeVangie, Esq. The NBAification of Biglaw and Can Lawyers Learn Anything from Warren Buffet and Leonardo da Vinci?

While the doings at elite law firms (“Bi- announcing record profits per equity part- the “continuum” of genius, one a rumpled glaw”) in New York, Chicago and elsewhere ner. Others drop out; even those who can seemingly “regular guy” (Buffett) and the may be a bit distant to Vermont lawyers, a ride out the long process to equity partner other a visionary of perhaps unprecedented recent article in the Wall Street Journal con- sometimes have that sinking feeling of hav- depth and breadth (da Vinci). tains some rather unsurprising news that ing been admitted to the really prestigious Warren Buffett’s career is fascinating, for may be relevant to lawyer life in the Green club only to find that you can no longer hack reasons not least of which include his net Mountain State. (“Being a Law Firm Partner the pain and suffering of being a member. worth (roughly $86 billion) and that his com- Was Once a Job for Life. That Culture IS All This may not mean all that much to Ver- pany’s (Berkshire Hathaway) annual return But Dead.” August 9, 2019.) To summarize mont lawyers. After all, few of us toil in Bi- since he took over in 1965 is 20.5% com- briefly: glaw, and I’m assuming no Vermont lawyer pared to the S&P’s 9.7% annual return for • Back in the day, if a good lawyer made makes $25 million per year. (If I’m wrong the same period. Based on that success, partner in Biglaw, compensation among as to the latter, apologies for the error and one might expect Buffett to present as a su- partners tended to be lockstep, job se- congrats!) But the ennui inspired by the per genius rocket scientist, spouting differ- curity was high and marketing was al- WSJ article might lead us to search for more ential equations and living large to match most a second thought. creative ways to think about what we do his unparalleled success. As you probably • A once emerging trend is becoming and how to have a more satisfying career as know, nothing could be further from the the norm: two-tier partnerships reserve practicing lawyers. As our good friend Aris- Warren Buffett reality. He famously lives in the big bucks for top performers, who totle put it a few millennia ago, “Excellence the same old house he’s always lived in back share in the firm’s outsized profits, and is never an accident. It is always the result of in Omaha, eats at McDonalds’s, downplays other partners are salarymen (“partners high intention, sincere effort, and intelligent his genius and has what might charitably be in name only” or PINOs). PINOs work execution; it represents the wise choice of described as pedestrian offices. He is said hard and have job insecurity issues. many alternatives - choice, not chance, de- to drive a 2014 Cadillac XTS, after auction- • Law firm governance, once operated termines your destiny.” ing off for charity his 2001 Ford Town Car. on something like a partnership basis, A recent edition of the Financial Times He has pledged most of his assets to char- now is operated on a corporate basis: a (April 27, 2019) contains two excellent ar- ity at his death. small group of head honchos control. ticles, an extended profile of Warren Buffett What does this have to do with me, you • At the top of the equity partner pyra- (“I Have More Fun Than Any 88 Year Old in might be asking. Perhaps consistent with mid, the view is good and the pay is the World”) and an extensive discussion of his “aw, shucks” persona, Buffett’s profile in better ($10 million +, some ranging to Leonardo da Vinci’s genius and how it might the Financial Times provides some solid ad- $25 million annually). Competition rag- be relevant to the current “age of disrup- vice: es for top performers (i.e., skilled law- tion” (“The Da Vinci Code”).1 In their own • Be Humble/Don’t Take Yourself So Seri- yers with a major book of business). PI- ways, Buffett and da Vinci are two of the ously: As Warren puts it about his looks, NOs work really hard trying to make most exceptional people to have lived: Buf- “I buy expensive suits--- they just look equity partner, and they get paid well, fett is one of the richest men living, with un- cheap on me.” (Your reporter feels ya, but orders of magnitude less than equi- paralleled long-term success as an investor, man.) More seriously, Berkshire Hath- ty partners. In some firms, PINOs aren’t and da Vinci was a polymath with marvelous away has performed about in line (or even invited to annual partner meet- talent and amazing creativity. even underperformed) the S&P 500 in ings (reserved for equity partners). What lessons, if any, can the careers of recent years and the “Oracle of Oma- • This reflects a movement in Biglaw to these two geniuses impart to lunch-bucket ha’s” response seems to be that that what might be called an investment (ok, briefcase) toting lawyers trying to gen- sort of performance may be about bank model: big players make big mon- erate billables in a law firm or get ahead what one can expect from a fund the ey, everyone else does reasonably well in in-house or other legal gigs? Most like- size of Berkshire Hathaway, and even and tends to be unhappy. One might ly, the immediate reaction is: not much; if recommends S&P 500 index funds to call this the NBA model: LeBron James I were a genius like those guys, I wouldn’t most people. So, even if you are the makes something like an annual salary be here working on the Smith divorce or the mighty managing partner of the Biglaw of $38.2 million and the last guy on the Bigco merger, worrying about paying my Behemoth, over $2 billion in revenue, bench (which, for the Lakers, seems to mortgage or student loans. And I certain- and praised as a visionary genius of the be a guy named Talen Horton-Tucker) ly wouldn’t be listening to my odious col- highest order, remember, person, that makes about $898,000. (He’s no doubt league, Johnson, go on about how he got thou art dust and into dust thou shalt an amazing athlete and that isn’t bad out of the sand trap on hole 17, or about his return, sooner perhaps than you think. money, but LeBron makes about 42.6 favorite IPA. But that answer would be (And by the way, don’t try to bribe your times as much). Thus, the NBAification wrong, or at least would make for an unac- kid’s way into Stanford.) of Biglaw. ceptably short article. I propose that even • Have Fun: Why in the world would a ordinary lawyers can learn from geniuses, guy whose net worth in billions of dol- Some number of Biglaw players are con- and learn useful items that can be applied lars (86) is virtually equal to his age in cerned about this. Head honchos decry in our mundane, day to day lives. Buffett years (88) go to work every day, or work the monetization of the profession, while and da Vinci are perhaps two extremes on at all? Because he has “fun”-- more

50 THE VERMONT BAR JOURNAL • FALL 2019 www.vtbar.org fun, he claims, than any 88 year-old in ruin his life. We should take him at his scene in Florence at the time was tol- The NBAification of Biglaw the world. What? How can my job as word on this and try to apply this advice erant of diversity and immigrants, and drone lawyer (in either sense) be “fun”? to our professional lives. its leaders were willing to invest in proj- There’s our challenge! To put it in more ects that were not likely to generate im- high-toned terms, this is our “search If Buffett is perhaps the Tony Gwynn or mediate economic returns. How willing for meaning”: finding something to maybe even Ted Williams of investing (yes, are we to invest in the future through do with our lives that pays the bills my wife criticizes me for over use of sports arts and ideas? We seem focused on and also gives us a real reason to get analogies, especially involving old school closing liberal arts programs and trying dressed in the morning (if that’s when baseball players), da Vinci is a different kind to force students to get “good jobs.” you get dressed). of fellow altogether, being sometimes com- There’s nothing wrong with good jobs • Love Your Colleagues: Buffett cites pared to Newton or Shakespeare in terms but how do we foster creativity when his love for his co-workers as one of of scope. The Financial Times article on da we are focused so highly on financial the principal reasons he keeps going: Vinci vividly describes him as having a “poly- goals and indicia? Who would support “It’s because I love what I do and I love mathic intellect” and a genius for painting, a da Vinci today? the people I do it with.” The Financial and further describes him as “the embodi- • Creativity Transcends Disciplinary Times profile makes this sound like a ment of the ideals of the Renaissance.” As Boundaries: da Vinci worked in any Norman Rockwell scene: each desk is an artist, he is compared to Raphael or Mi- number of intellectual areas, including covered with family photos, greeting chelangelo, which is surely rarified compa- visual arts, engineering, architecture, cards and tchotchkes. As Buffett puts ny, but the distinguishing characteristic is his futurism, design of aircraft, weapon- it, “We go to baseball games together. work as an engineer, architect and specula- ry, musical instruments, reading glass- They try to make my life good, and I try tive thinker. es and much, much more. But we are to make their lives good.” There’s even There, the comparison to great artists not in the era of “natural philosophy” a charming picture of him in a Royals’ such as Raphael or Michelangelo begins to where thinkers could profitably work jacket. Does this mean you must love become less useful. According to experts, in multiple areas; instead, we are in an the odious Johnson of the sand trap there are less than a dozen extant paint- age of specialization where we have and humble brag IPA? No, of course ings unequivocally attributed to him, includ- not just business lawyers, not just tax not, but if you really don’t care for or ing of course the “Mona Lisa” in the Lou- lawyers, not just corporate tax lawyers, admire any of your colleagues, that vre. The art world seemed shocked when but lawyers who focus on specific types should tell you something. the painting “Salvator Mundi” was auc- of corporate tax (such as forward trian- • Keep It Simple: Buffett is remarkably tioned by Christie’s in 2017 for $450 million gular mergers). How can we imagine direct about what it takes to be suc- even though it is viewed as only “general- that we can do anything useful in broad cessful in business, or at least in his ly accepted” as da Vinci’s work and subject areas, when the world is now so com- business: He describes his business as to scholarly dissent as being the work of an plex and people spend their whole lives “interesting” but “simple enough.” His assistant. In contrast, there are over 7,000 in their relatively small (but deep) quad- advice: “I always tell people: if they’ve pages of notebooks, as the Financial Times rant? This is a challenge to our imagi- got more than 130 points of IQ, sell the puts it, “showing a mind unfettered by disci- nation and requires a generous spirit to rest because you’re not going to need plinary boundaries.” The scope of da Vinci’s fund more speculative enterprises. it in this business.” He goes a step fur- creativity was recently explored, somewhat • When Things Change More Quickly, ther: “It may hurt you.” This is consis- breathlessly, by Walter Isaacson in his book People Get Left Behind More Quickly: tent with reports from legal consultants Leonardo da Vinci. For example, da Vinci The Financial Times article concludes that B students rule the Biglaw world; A seems to have anticipated two of Newton’s on a somewhat startling note by stating students may be too impractical, or tied laws of motion two hundred years before that the Renaissance ended when the up in their metaphorical shorts, to suc- Newton, and appears to have discovered forces of global commerce and infor- ceed in the world of billable hours and how the aortic valve works 450 years before mation revolution collided with popu- accounts receivable. (See, for example, official medical practitioners did. lists who objected to the uneven distri- the work of Professor William Hender- Again, I suspect you are wondering what bution of the economic gains of those son at Indiana Law School.) Buffett is this has to do with you, regular person law- economic and cultural developments. also well known for staying away from yer trying to make a living in a tough world. Thus, we cannot take progress for deals that are too complex or challeng- And, as with the discussion of Warren Buf- granted, and need to focus on the risk ing to be worth the investment of time fett above, on first glance the similarities of people being left behind and take and money required to get the deal between today’s corporate lawyer advis- steps to end the offending process. done. This is his famous “too hard” ing startup companies and da Vinci seem tray on his desk--- perhaps interesting so attenuated as to be unhelpful. But let’s What can you do? Get out of your bun- opportunities that just aren’t worth the give it a chance by considering the follow- ker and do something that expands your risk and effort. ing, gleaned from the Financial Times. Per- universe a bit. It’s ok to keep doing what • Don’t Overpromise: Buffett is ada- haps it will facilitate discussion to substitute you’re doing, but perhaps expand the mant about this point. He tells people the term “creativity” (something we all think scope of your enterprise to think more now that he expects that Berkshire Ha- is within our reach to some extent) for the broadly and interact with different kinds of thaway can “modestly” outperform the term “genius” used in the Financial Times people. Take an asylum case or, if that’s not S&P 500 over the next decade. In com- piece (which may seem well beyond our consistent with your views, defend the Sec- ments relevant to all of us in the ser- reach): ond Amendment against incursions. Serve vices business, Buffett emphasized that • Creativity Does Not Simply Arise, It on your town school board. Teach a high “the one thing that would ruin my life is Needs to be Nurtured: The article em- school class on the Constitution. Take on a people expecting more than I deliver.” phasizes that da Vinci was supported pro bono case in an area that comes with Read that again---- the world famous and encouraged by the Medicis, who training, such as adult involuntary guardian- possessor of an $86 billion net worth were broadly interested in the arts and ships or guardians ad litem. says that sort of over promising would philosophy. The cultural and economic A more radical proposal could be ad- www.vtbar.org THE VERMONT BAR JOURNAL • FALL 2019 5 1 dressed to the masters of the Biglaw universe. There seems to be an amazing lack of legal focus on the upcoming conse- BOOK REVIEWS quences of climate change. This lack of focus may ultimately not be surprising: many is to find and believe evidence that supports of us find the climate change disasters too our views and avoid and discredit that which disturbing to think about (a bit like thinking does not. We also tend to believe that the about one’s own death only magnified mil- good things that happen are to our credit, but the bad things that happen aren’t our The NBAification of Biglaw lions of times over), and the science behind it seems hard to understand and evaluate. fault. But let’s do a thought experiment: suppose Duke explains an idea she calls, “result- the UN report is more or less correct, just ing.” She describes it as the tendency to for sake of argument, what are the principal judge a decision by its outcome, instead of legal issues that will follow from its effects? by the quality of the decision itself. As a no- The issues are staggering in their breadth table example, Duke points to Pete Carrol’s and complexity: property law, insurance decision to call a pass play in the last 26 seconds of 2014 Seahawks/Patriots Superbowl law, asylum and immigration, torts and con- An Adventure in Lawyer’s Poker: tracts, property tax, admiralty, and on and game. It was an objectively good decision Thinking in Bets: on. You could think of this as expansive that led to a bad result. The Seahawks were Making Smarter Decisions business development for your firm’s prac- four points behind and on the one-yard line. tice in a hotter, wetter, even crazier world. When You Don’t Have All the Facts Everyone expected them to hand off the ball Why don’t we do this: let’s have a number By Annie Duke to Marshawn “Beast Mode” Lynch to bull his of law firms send one lawyer to a nationwide (Portfolio/Penguin: New York 2018) way into the endzone. The Seahawks had task force on climate change to work exclu- Reviewed by Richard T. Cassidy, Esq. only one time out left, so a running play sively on that issue for 1 year under the su- would likely give them only two chances to pervision of a governing board of partners For lawyers who strive to give clients ob- score. But a pass play had real advantages. from leading firms and academics working jective advice, Thinking in Bets is a refresh- An end-zone completion would have won in the area. Then have the group determine ing challenge. the game. An incompletion would likely the likely outcomes from the UN report and I am fortunate that my own practice ex- take very little time, leaving the Seahawks map those into an assessment of the prin- perience has been diverse. Although my fo- two more shots at the end zone. Only an cipal legal issues raised and how the legal cus is on representing plaintiffs, I carry with interception would cost the Seahawks the system will be stressed by the presumed me some of the thought processes I learned game. That’s, of course, exactly what hap- events. There would be no need to assess when I represented insureds, insurance com- pened. Carrol looked like a goat and Patri- how likely the climate change events are to panies, and employers. But that experience ot’s coach Bill Belichick looked like wizard. occur; we can let the UN report set those as- is dated, and the lessons of those days have But the results don’t make Carrol’s decision sumptions. Then turn loose the group’s cre- receded. a bad one, only an unsuccessful one. Duke ativity to think about what we can do to ad- So, Annie Duke’s book, Thinking in Bets, points out that the statistics showed the dress those issues, and the timeline for do- gave me an important opportunity to reeval- probability of an interception was only 2.5%. ing so. uate my decision-making processes. And there was a risk, nearly 1%, of a posses- This sort of project might be something Annie Duke left a promising career in ac- sion-changing fumble on a running play. that combines the skillsets of Warren Buf- ademia as an experimental psychologist So, Duke argues that Carrol’s choice was a fett and Leonardo da Vinci. Maybe the work and became a successful professional poker good one. It had the advantage of surprise product won’t be “genius” but it could be player for 18 years. She won the 2004 World and was likely to give the Seahawks an extra useful, solid stuff that could perhaps be the Series of Poker. opportunity to win the game. basis of progress. And that would be pret- Her book is not about practicing law, but In fact, the correlation between our de- ty good.2 it is very relevant to the work of lawyers. cision-making processes and the results of ______Duke points out that being a trial lawyer is those process is very loose. We may very Joseph Ronan, Esq. is a solo practitioner more like playing poker than it is like play- well make some poor decisions that lead in Norwich, Vermont, and works primarily in ing chess. Chess players see all the relevant on to success and vice-versa. I think this is the areas of taxation, executive compensa- information right on the board. Luck plays particularly true of strong lawyers who may tion and business law. He was previously a little if any role in the outcome. But in pok- sometimes make things work, that – viewed partner at Morgan Lewis and held positions er, and in the law, critical information may objectively – simply should not. It’s great to with Bell Atlantic and Blank Rome. He is an be hidden and luck often plays an important pull off a long shot, unless it gives you a false adjunct professor of law at Villanova Law role in determining outcomes. sense of invincibility that leads on to multi- School and is a member of the Selectboard In law practice, as in most businesses, you ple failures. I know it happens. I can recall an in Sharon, Vermont. can’t control the outcome of the ventures early trial success that led me to take several ______you undertake. But you can learn to make contingency cases I lived to regret. 1 www.ft.com. Paid subscription required. Duke has great suggestions about how we 2 better decisions, which, over time, will give Like the D-League player who makes it big in can improve our decisions. A leading idea the NBA (e.g., Hassan Whiteside, who, after toil- you better results. ing in the D League, is making $25 million a year Duke points out the pervasive, persis- she explains looks back to the name of the now, just like the Biglaw big hitter but Whiteside tent influence of confirmation bias in all our book, Thinking in Bets. She suggests that we can dunk). lives. We tend to seek out and accredit evi- try to explicitly lay out the ways that things dence that confirms our existing views and can work out and then take a stab at esti- to avoid and discredit evidence that is incon- mating the probabilities of each one before sistent with those views. And this bias is not deciding. Having laid out the factors that reduced by intelligence. In fact, it’s often just may affect the results and assigned even the reverse. The smarter we are, the easier it rough probabilities helps us to compare re-

52 THE VERMONT BAR JOURNAL • FALL 2019 www.vtbar.org Book Reviews sults with expectations. If done seriously, loving the high;” the father who commit- GAL – the network of support that wraps it- it makes us information hungry. Even par- ted violence but is doing everything right self around a child who has been neglected tial success in gathering and looking at rel- to get his kid back; the toddler attached to or abused. The other mothers may be a fix- evant information informs our decisions and an abusive parent; the 12-year old girl who ture in a child’s life or play a short-term role, improves our process. And acknowledging bravely testifies to sexual abuse by a male but they are critical to supporting a child that there is some uncertainty as to the out- relative. in this village-less society. I challenge the come tends to soften the psychological at- Author Sharon Lamb is a psychologist reader to get through those sections with- tachment to our decisions and increase our specializing in early and adolescent devel- out remembering their own other mothers. ability to learn the right lessons. opment. She counsels children, adolescents Another important theme in the book is Duke also suggests the benefits of includ- and adults, and conducts forensic evalua- the devastation in our communities that is ing diverse views in our decision making. She tions in DCF cases. Her publications include the addiction crisis. Lamb notes that since points out that many group decision-making Cambridge Handbook of Sexual Develop- 2014, most of the 33% increase in children processes are “confirmatory” rather than ment: Childhood and Adolescence (co-au- placed in custody had to do with parents “exploratory. Confirmatory groups are com- thored with Jen Gilbert) and Sex Therapy who were addicted to opiates. She points mitted to being right, that is, to affirming for Kids. She lives and sees patients in Shel- out how the current waitlist system for legal that the group’s view is the right one. Be- burne, Vermont, and teaches in Boston. Suboxone sends addicts searching for ille- ing surrounded by people who tell you what Through the characters she presents, gal ways to get clean. The high point for me you want to hear hurts rather than helps. But Lamb offers a glimpse into the world of fo- was the hysterical national-wide search for an exploratory group values and rewards rensic evaluation, where the stakes are high. a private drug rehabilitation center in the serious dissent. It carries a commitment to Her recommendation will impact whether chapter entitled “Rehab Shopping.” Evelyn being “accurate” rather than “right.” An a child is taken away from a biological par- Waugh would be proud. exploratory process helps a group decide ent or from a foster parent, who may have Readers in the legal community may take based on a clearer view of the relevant facts. cared for the child since birth. In all but one offense at Lamb’s portrayal of attorneys and There is much more to be had from Duke’s case, Lamb asserts, the judge has followed judges as seeing a nuanced world in black book. As lawyers, we sell good advice and her recommendation. What does Lamb look and white. Indeed, the ultimate decision in good decision making. Reading this re- for in her observations? For almost a hun- a DCF court custody case is placement of view is a step in the right direction. Read- dred years, psychologists have viewed the the child and the role of the attorney is to ing Duke’s book is bigger step. And taking development of the child through Heinz Ko- protect the interest of their client. However, Duke’s thinking seriously and implementing hut’s lens of “mirroring and idealization,” juvenile defense attorneys represent chil- at least some of her suggestions, is bigger i.e., whether a parent can mirror back what dren as often as they do parents and they still. the child is feeling in order to develop the have experience dealing with every side of Of course, it is better to be intuitive and child’s sense of self, and later a “grandiose a case. The Office of the Defender Gen- right than it is to be objective and wrong. self in the best sense of the world.” As eval- eral, which provides juvenile defenders to But unless you believe in magical thinking, uator, Lamb is looking for whether a parent parents in nearly all cases, has a network of the path to good intuition is well-informed can understand what is in the child’s mind family support workers to help when no one decision-making followed by careful evalua- (‘mind-mindedness’) and respond appropri- appears on the side of the recovering par- tion. ately. Yet according to the theory of pedia- ent. An attorney may accompany a parent ______trician and psychoanalyst D.W. Winnicott, a through the ups and downs of a case bound Richard Cassidy is a co-founder of Rich mother need only be “good enough,” get- for termination of parental rights (TPR) for Cassidy Law in South Burlington, Vermont. ting it right most of the time. “She needn’t as long as three years. Juvenile and DCF He focuses on plaintiff’s personal injury cas- be perfect.” case workers work hard to develop trust es, employee side employment law, and That is where the challenge comes in for between the bio parent and the foster par- professional licensing matters. the forensic evaluator. When a mother’s ent so that contact may continue after TPR right to remain a parent is questioned, what regardless of whether there is a post adop- is ‘good enough’? How does one weigh tion contact agreement. All of that work is the imperfections of the parent against the anything but black and white and, although best interests of the child? While the stan- heart-wrenching, seems completely worth- dard for evaluating parent-child relations while when, as happened to me last month, is attachment, Lamb makes the argument a bio mother whose rights were terminat- that the impact of the loss of the parent to ed rushed up to tell me, “I took my daugh- the child should also be taken into consid- ter out for her birthday.” The child is safe eration. Loss of a parent is worse to a child with a foster mother but has not lost her than negligence and that loss should never not good enough mother forever. In that re- be minimized. spect, Lamb is spot on: there is a communi- Who is Lamb to decide that a parent is ty in Vermont trying to get it right. not good enough? “Most of all, I sit in judg- The Not Good Enough Mother is an es- ment. [….] But sometimes I sit in judgment sential read for juvenile law practitioners The Not Good Enough Mother of myself.” Without giving anything away, and will stay with you long after you have By Sharon Lamb the reader is gripped with the realization turned the last page. (Beacon Press Boston, 2019) that the entire premise of the book is over- ______Reviewed by Cristina Mansfield, Esq. laid with Lamb’s doubts as to whether she Cristina Mansfield is a solo practitioner has been a good enough mother herself. in Manchester, Vermont, and has a juvenile Attorneys and judges practicing in the A number of themes are woven though conflict contract in Bennington County. juvenile docket have met the characters in the book. Lamb introduces us to the role Sharon Lamb’s latest publication, The Not played by ‘other mothers,’ the team of Good Enough Mother: the addicted mom women (and men) made up of therapist, at- wistfully loving her children but “mightily torney, DCF worker, school counselor and www.vtbar.org THE VERMONT BAR JOURNAL • FALL 2019 53 IN MEMORIAM

John M. Lorentz community activities. John and family en- eral and the Rutland County state’s attor- joyed cross-country skiing and tennis. He is ney before becoming a founding member John M. Lorentz, 73, died on July 12, survived by his wife of over 50 years and of Keyser Crowley, PC. Art was very active 2019 with family at his side, after a year- three sons. in the local community, serving on the local long battle with cancer. Born in NJ, John school board, board of aldermen and help- was a high school valedictorian and grad- ing form the Castleton University Nursing uated summa cum laude from Dickinson Arthur E. Crowley, Jr. Program and the Rutland City Police Com- College. He received his JD from Rutgers mission. He was active in the republican Law School and a PhD from Rutgers Uni- Arthur E. Crowley, Jr. passed away on party, serving as the chairman of the Exec- versity. John taught political science and August 18, 2019 at the age of 90. Born in utive Committee of the Vermont Republi- law as an adjunct and practiced law for Vermont, Art attended Norwich Universi- can Party. Art loved to travel and fish and 44 years, most of them in Killington. In his ty and Boston University before serving in enjoyed large family gatherings. He is sur- youth, John played saxophone and sang in the US Army as an Airborne Ranger as 1st vived by his wife of 32 years, five children a band performing in clubs and bars in NJ. Lieutenant during the Korean War. He was and many grandchildren. John served on the Title Standards Com- a member of the VBA for nearly 60 years, mittee of the VBA and many boards and having served as a deputy attorney gen-

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