SPRING 2021 • VOL. 47, NO. 1 VERMONT BAR JOURNAL

DEPARTMENTS

5 PRESIDENT’S COLUMN

PURSUITS OF HAPPINESS 10 — What’s Your NEW Line?

RUMINATIONS 12 — Kent’s Comment

24 WHAT’S NEW

BE WELL 25 — Happiness Hacks In Memory of the 38 BOOK REVIEWS Honorable Peter W. Hall 11/9/1948 – 3/11/2021 40 IN MEMORIAM

41 CLASSIFIEDS

FEATURES

8 Tribute to Judge Hall Chief Justice Paul L. Reiber

26 Access to Justice Campaign 20/21

30 A View of Pro Bono Work in Vermont Ellie Gebarowski-Shafer, D.Phil.

32 College Behind Bars: Putting the Second Chance Act to Work in Vermont David F. Kelley, Esq.

36 Why Failing to Provide Mandatory Security Awareness Training is a Huge Misstep Mark Bassingthwaighte, Esq.

37 A Tool in Your Trust-Drafting Toolbox: The Trust Company of Vermont Hon. George K. Belcher

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4 THE VERMONT BAR JOURNAL • SPRING 2021 www.vtbar.org PRESIDENT’S COLUMN Writer’s Block and Rewards

I have writer’s block. For the first time in ed file out of the drawer>pet the cat (non- my life, I actually don’t know what to say negotiable in this sequence)>write some- (or write). I could write about some major thing else on the to-do list>forget where I issue of the day. But the issues on the na- put that file>pet the other cat>check email tional level are too huge and divisive, while again>play a round of Two Dots on my the issues on local level are… huge and di- phone>mince about the fact I’m not get- visive. Also, my office-mate is a 14-year-old ting my column done>make tea. cat named Lucille, and when I ask her ad- I’m no behavior specialist, but even I can vice about what to write she doesn’t under- tell this isn’t an especially rewarding way stand the question and she won’t respond to get things done. There’s no joy in that to it. (This is not the cat who I wrote about sequence. For those of us who read the in my last column and who brought me a languishing article and thought it seemed live squirrel; that cat’s only advice is, “focus descriptive of parts of our own lives, how on the squirrel.” He is the happiest crea- do we figure out how to surrender to the ture I know.) flow, so to speak, so that we can get things I don’t want to turn this into another col- done? umn about the pandemic. But because it’s The languishing article was published in taken over our lives for the last year, it’s April 2021, which is the same month the both hard to avoid and very tiring all at the Vermont Judiciary launched its new Bar same time. It reminds me of the Sunday af- Assistance Program. Michael Kennedy, ter Thanksgiving every year where I’m tired who leads the program, blogged2 recently ward. of eating leftover turkey but that’s all I have that the program will work on a spectrum. This is likely why fitness apps are able to in the house. COVID-19: The Turkey Burrito While there will be assistance available for keep certain users engaged with their vari- You Made But Don’t Want. attorneys with very serious addiction, men- ous programs. It’s a little bit of a thrill to I recently read an article in the New York tal health, or other issues, there will also be get the 10,000 steps buzz on a Fitbit, and Times about the concept of languishing, assistance for attorneys who need some it’s fun to get an electronic badge for work- and it occurred to me that the concept other help. And maybe, if people are able ing out however many days in a row. Pelo- probably describes a lot of us right now, to get some other assistance early, it can ton unexpectedly sent me a t-shirt for com- at least to some degree. “It’s the void be- help before any minor issues become ma- pleting 100 yoga classes through its app. tween depression and flourishing – the ab- jor issues. Intellectually I know it’s a relatively cheap sence of well-being. You don’t have symp- So, I’ll turn back to languishing, because way for the company to get me to keep us- toms of mental illness, but you’re not the it seems like languishing might be one of ing (and paying for) their app. Emotionally I picture of mental health, either. You’re not those minor things that could become a was over the moon for my new shirt. functioning at full capacity.”1 It seems as if major thing if left unattended. Translating this into work: sometimes languishing was a color it would be beige. I contacted Ariel Cahn-Flores, a friend it’s hard to feel like there’s a reward when If it was food it would be oatmeal (or the of mine who is a licensed clinical social there’s always more work. Practicing law aforementioned turkey burrito you don’t worker3 in Wilder, Vermont, to ask about can feel like a bit of a slog sometimes. Od- really want). If it was a word it would be the concept of languishing and what to do yssey doesn’t send a “Congratulations! “meh.” Not bad. Not the best. It just is. about it. She responded that she was glad You e-filed ten documents!” badge. On This Times article suggests that one way there’s a word and a concept for what so the other hand, it does feel good to go to combat the feeling of languishing is to many people are feeling these days be- to court and win something for a client. It figure out what gets us into a flow that yond saying someone is a high-function- feels good to see a case work out in a way doesn’t get interrupted. Divided atten- ing person with depression. That doesn’t that’s beneficial. It’s fabulous when a client tion is the enemy of flow. It suggests focus- exactly seem to fit the bill. I also asked sends an email or a note of thanks. ing on a small goal, where there will be a about how to handle this particular feeling. But those aren’t things we can predict. sense of joy from the reward for attaining She thought the article in the Times had a While it feels great to have a successful the goal. “good blueprint to start to get out of the outcome and a happy client, it isn’t a given Arguably, sitting down to work on a proj- funk: focused and intentional time chunks those things will happen. And between the ect, getting into the groove of the proj- spent on smaller goals to create a sense happy outcomes, there’s a lot more work ect, and achieving part of that project, of accomplishment, and being authentic in that gets done. feels good to us. Distractions (I’m looking social interactions.” There’s been a larger conversation in the at you, email) disrupt the flow and make it People like rewards. Remember the epi- bar over the last several years about the hard to focus. My prior attempts at writing sode of Seinfeld where Elaine accidental- concept of lawyers’ well-being. It’s been a this column went like this: ly wrote and gave away her (fake) phone long time in coming for the profession to Write six words>check email that just number on the back of her Atomic Subs re- acknowledge mental health and substance popped up>jot down something on my wards card, and she was bummed out that abuse issues. While those issues are incred- to-do list>call that client who I needed to she was two sandwiches away from a free ibly important, we also should focus on speak to about whatever>start response sub?4 In the grand scheme of things, a free how to structure our work so it feels more to earlier email>halfway through a word in sub is no big deal, but it does feel like a authentic and rewarding. Nobody goes that email get up and go get some unrelat- sense of accomplishment to get the re- into a profession hoping it will feel like an www.vtbar.org THE VERMONT BAR JOURNAL • SPRING 2021 5 endless treadmill of work. But if we’re not able goals and work toward those goals. It dent of the Vermont Bar Association. She careful about how we manage, it can turn might mean setting rules for myself, like I maintains a solo practice in Woodstock, into exactly that, which can lead to more get to make more tea if I finish three tasks concentrating in the areas of criminal de- serious issues. This last year has gotten on the list. Or if I have a hearing at a partic- fense, family and juvenile law and is an ad- to be a grind. Many people felt like every ular time, I set a goal to do a certain num- junct professor at Vermont Law School. day was exactly the same as the one be- ber of tasks before the hearing. The built- ______President’s Column President’s fore. And there have been days when it felt in reward is the sense of accomplishment, 1 Grant, Adam. “There’s a Name for the Blah like a long day of work and the only reward even in the short term. You’re Feeling: It’s Called Languishing.” New York Times, April 19, 2021. at the end was the equivalent of my meta- I’m also going to try to focus more on 2 Kennedy, Michael. “Wellness…umm, Thurs- phoric turkey burrito, which was really no creating intentional blocks of time where day?” Ethical Grounds, April 22, 2021. reward at all.5 I focus and limit distractions. This might 3 She is also an incredibly talented classically The other problem, of course, is that mean closing my email for an hour or so at trained flutist. I took flute lessons from her sev- eral years ago, which is how we met. with our inability to travel much, many of us a time so my attention doesn’t get divert- 4 “The Strike.” Seinfeld, Season 9, Episode 10, 6 cancelled vacations and trips, which are re- ed to incoming messages. It might mean originally aired December 18, 1997. Also known ally necessary to help refresh our minds. It’s starting my work day a little bit earlier and as the Festivus episode. also helpful to look forward to something: using that time for a specific purpose. 5 I do want to remain open-minded. If you have without that the days all sort of bleed into I’d be interested to hear what others a leftover turkey burrito recipe or technique that you think will change my mind from “meh” to one another with no real long-term goal or have done to manage time and workflow in “I might eat that again,” feel free to send it my reward in sight. I’ve heard more than one order to keep your practice efficient and re- way. lawyer make comments that long as they’re warding. What works? What doesn’t work? 6 I am not making this up: while I was editing stuck at home they might as well work. What tricks can you share? Let’s put our this piece an email popped up. I read the sub- ject line and said, “oh [subject]. That’s important. That’s fine, but for most of us, it’s too much collective minds together and share what I better read that.” But it isn’t so important that of the same to go for over a year without a works so we – and our clients – all benefit I couldn’t read it in ten minutes when I got done break. There most definitely isn’t a badge in the long run. It might also mean we prop doing something else. I am already not doing for “You’ve done lawyer work for 400 days each other up and help combat this lan- very well focusing on the flow. I need to be more in a row!” guishing feeling so many of us might have. like the cat who focuses on the squirrel. It seems like one way to combat the ______potential for languishing is to set achiev- Elizabeth Kruska, Esq. is current Presi-

6 THE VERMONT BAR JOURNAL • SPRING 2021 www.vtbar.org

by Chief Justice Paul L. Reiber Tribute to Judge Hall

We mourn the loss and celebrate the life in the positive side of life. pulling him away as Kyle yelled, “the man, of the Honorable Peter W. Hall. Almost ev- Pete and I served together in town gov- the man!” Everyone at the Inns dinner got eryone knew him through his distinguished ernment. When I was first elected modera- a big kick out of that, and it was quintes- career as a trial attorney in private practice, tor of our small town, unsolicited he turned sential Pete: a self-effacing, good humored a U.S. Attorney for the District of Vermont, a gavel for me on the lathe in his basement. federal judge. and a judge on the U.S. Court of Appeals I still have it at the Court. I think he was When he was appointed to the Second for the Second Circuit. But many were serving on the Selectboard at the time, and Circuit, there was no better person for the lucky enough to know him as a beloved fa- when he gave it to me, I joked that he was job. As a judge, Pete’s dedication to the ther and husband, a caring and generous probably looking for a “good ruling” at rule of law was matched only by his integ- friend, and a public servant deeply devot- Town Meeting. rity and humility. Although the court is in ed to Vermont. We also served together on the Board New York City, he loved Rutland, which he I first met Pete in my kitchen at a neigh- of our Chapter of Inns of Court. Pete was affectionately called the “center of the uni- borhood party. We immediately connect- a founder of the Chapter and I recall him verse,” and kept his chambers there. When ed, talking about our personal histories inviting me to participate. I never did as a the job took him to New York, he made and vision for the future—for our children practicing lawyer but after I went on the sure to bring his Vermont values with him and families and the profession. even if he left his flannels at home. And what struck me more than He had an impressive ability to tran- anything was Pete’s profound de- sition between chopping wood and cency, good humor, and gentle as- tending horses on the weekend to pect. He was not a take-no-prison- sitting on the bench in New York, as ers kind of a guy, but the type who his law clerks can attest. relished thinking about the other Pete left a lasting impression on side of life, the gentler side, and his colleagues. His fellow judges on about others who were not on top the Second Circuit lauded him as a but struggling. I loved that about “thoughtful and humane jurist [who] him and still do. was generous with his colleagues Later we worked together, af- and ever considerate in matters ter we sort of figured out how to both big and small.” His law clerks do that, but it was a plan we had admired him deeply, praising his in the mix since that first meeting. example as an even-handed jurist And through the years, as we were who sought to find the just and le- neighbors and law partners with gally correct approach in every case families growing up together, he he heard. Their words highlight his instilled values and taught lessons dedication to mentorship – through to his children and to mine that his clerks, some of whom we shared resonate today. He taught them in succession, he cultivated a gen- that “us-versus-them” is a nega- eration of lawyers committed to tive life perspective, a burdened, honesty, humility, and justice. hackneyed approach to how we As his law partner and friend, see and treat people. And there I coveted his input on matters I was this one: on a day when good struggled with. He was always luck comes to you, it means: I must skilled in his approach, with a will- be doing something right. He set ing ear, ready quip, and sound di- the example that the best way to Judge Peter Hall and Justice Paul Reiber, January, 2021. rection. And from that day we met Photo courtesy of Hazel Brewster. do well for yourself was to do good in my kitchen through his time on for others. the bench, his stalwart decency and Pete’s interest in construction Court, I saw the strength of that organiza- positive outlook never wavered. and woodwork was perhaps not as herald- tion: lawyers gathered for dinner togeth- In his years as an attorney and as a judge, ed. But I knew his skill well. Working with er who curry high principles in the prac- Pete enriched the Vermont legal commu- him on his barn, I learned Parson’s Rule, tice of law. Involvement in the Joan Wing nity. He embodied the principles and val- I think it was called, that says when two Chapter had been a mainstay for us both ues that instill faith in the justice system. ropes or lengths of hose are lying on the over the years, and we derived great re- He served as a mentor and a role model ground they will tangle in a knot. I didn’t ward from working with good friends in to many, and he cared deeply about giv- know that rule, but I quickly found it to be the bar and VLS students. In one skit we ing back to his community. The legacy he true. Then there was the “soft sole shoes” did, Pete agreed to join in as a demonstra- leaves behind is truly great. rule. When we were working on the met- tor in a depiction to have taken place out- My heart goes out to his children, his al, sloped roof of his barn, Pete said if you side the Supreme Court on the front steps, spouse, his surviving brother and sisters, have enough faith in Providence, you will and I was the counter-demonstrator. In the and all who knew and loved him. Our loss not slip and fall 20 feet to the ground—and last scene, my law clerk at the time, Kyle is great but the memories pure joy. by golly I witnessed it and he was right! Landis-Marinello, feigned to hit me over Kidding aside, he was a guy with great faith the head with his cardboard sign with Pete

8 THE VERMONT BAR JOURNAL • SPRING 2021 www.vtbar.org

PURSUITS OF HAPPINESS What’s your NEW Line?

Calling all renaissance folks! Loyal read- intellectual focus and our bottom line, so ing the great outdoors in Vermont, drop ers (there are some, right?) are undoubt- many of us have found ways to balance me a line. Even if you do not wish to be in- edly wondering whose pursuit of happi- these efforts with more creative or physi- terviewed, maybe we can at least publish a ness will be highlighted this quarter. This cal pursuits. list of all the fun, crazy, athletic, creative or Spring, there is no interview to be found Whether the pandemic has left you with unique things we’ve been doing this past because this quarter’s honoree is…every- more time on your hands or finding your- year. We’d love to hear from you! one! During Bar Counsel Mike Kennedy’s self busier than ever (we see you, real es- In speaking with potential interviewees, Lawyer Well-Being Week series, specifically tate practitioners!), this shift in priori- one common theme is that the potential in- the Engage and Grow day, we found that ties has caused so many of our members terviewee, having not run a marathon up a this pandemic has caused an uptick in said to either try new things or take the time mountain or having not been on stage, felt happiness pursuers, so we know you are for more cultural pursuits. During Mike’s unworthy of being highlighted in the jour- out there. Well-Being Week zoom and elsewhere, we nal. But the column is neither called ‘su- Sure, a renaissance person is anyone learned of just a few: learning how to play per lawyers’ nor ‘in pursuit of those with who acquires proficiency or knowledge in the guitar from scratch, excelling, and buy- extraordinary talents.’ On this, the five- more than one field, but the term stems ing a few more guitars; learning how to do year anniversary of the Pursuits of Happi- from the Renaissance Period, a period of the electric slide or shuffle running man & ness column, the title remains true to its cultural rebirth or growth after the Middle Charleston; perfecting difficult recipes or mission, double-entendre intended: find- Ages. It’s not that classical philosophy, sci- learning how to make that perfect sour- ing members with ‘pursuits’ (activities, of a ence, art and culture did not exist before, dough bread; re-learning French or other recreational, creative or athletic kind) that it’s just that the period marked a returned languages using language apps; remodel- bring them personal happiness, which pur- focus on such things. And if this pandem- ing an office building or home; teaching suit, as we all know, is also a certain, un- ic has taught us anything, it’s how to shift oneself how to decoupage, and then deco- alienable right. priorities. Followers of Mike’s blog, Ethical rating a kitchen with joyful images; doing ______Grounds, will notice a more pointed shift volunteer work in a new area of law and un- Do you want to nominate yourself or a of focus during the pandemic toward well- doubtedly so many others. fellow VBA member to be interviewed for ness, civility, balance and pursuits of happi- So if you are finding yourself learning a Pursuits of Happiness? Email me at jeb@vt- ness. While we are, of course, still focused new skill, enjoying a new project, setting bar.org. on our clients, outstanding work-product, new goals for yourself or just re-discover-

10 THE VERMONT BAR JOURNAL • SPRING 2021 www.vtbar.org

by Paul S. Gillies, Esq. RUMINATIONS Kent’s Comment

James Kent Samuel Prentiss Joseph Story

“Judge Story, the only man to be tending it to be repeated, particularly in wards discovered, when the reports thought of in the comparison, is certainly Vermont, and to get back to Prentiss. He of the year, on both sides of the wa- a very learned and able man; but I cannot likely didn’t intend that Story would learn ter, were published, that Judge Pren- help regarding Judge Prentiss as the best about it, and there is no evidence that it tiss had, not only in the same year, but jurist in New England.”1 got back to Story. in the same week or fortnight, made, Superlatives are risky. The intent of the in one of our important suits, precise- This compliment, given by the highly bestower of a compliment may vary. It ly the same decision, which was also regarded Chancellor James Kent of New might be obsequious, attempting to curry then new law here, arriving at his con- York, author of Commentaries on Ameri- favor. It might be used to exalt the stand- clusion by a process strikingly similar can Law (1826-1830), is probably the nicest ing of the complimentor. Who can judge to that of the English Justice. This re- thing ever said about a Vermont judge or another but a peer? Kent carefully limit- markable coincidence, involving the justice. It was also something that stuck to ed the jurisdiction of his judgment to New origin of then new, but now well es- the memory of Samuel Prentiss, Vermont England, while he remained in New York, tablished points of law, and involving, Supreme Court Judge and Chief Judge, outside of the contest. at the same time, an inference so flat- U.S. Senator, and U.S. District Judge for Rev. W.H. Lord’s 1857 eulogy of Prentiss tering to our Chief Justice, at once at- Vermont, and was repeated in obsequies alluded to the comment. “It is said of him,” tracted the notice of the celebrated and memorials of the man each time Pren- said Lord, “by the most distinguished law- Chancellor Kent of New York, who tiss was mentioned. Looking at it closer, it’s yer and statesman of his age, that his opin- soon after, falling into company with clear the statement is more than just an ac- ion on a legal question was more reliable several of our most noted Vermont- knowledgement of greatness in a judge. It than that of any other jurist in the coun- ers, cited this singular instance in com- is also a judgment on the comparative mer- try.”2 Rev. Lord’s version had extended the pliment to the Vermont Chief Justice, its of Justice Joseph Story, U.S. Supreme range of Prentiss’s authority beyond New and after remarking that there was no Court Justice (1812-1845) and author of England to the entire United States. possibility that either the American or Commentaries on the Constitution of the Kent’s use of the honorific “finest jurist” English Justice could be apprised of United States (1833), among other treatis- was first reported by Daniel Pierce Thomp- the other’s views on the point in ques- es. son in his History of the Town of Montpelier tion, would up by the voluntary trib- There was and is no formal process of (1860), prefaced by what appears to be the ute:-- ….3 determining who is the best jurist in New reason for the judgment. Thompson writes, England or anywhere else for that matter. Samuel Prentiss was Chief Judge of the But Kent’s word carried great weight, as Sometime during Judge Prentiss’ Vermont Supreme Court from November he had become an acknowledged Solon as Chief Justiceship of this State, Sir 1829 to November 1830. Thompson gives Chancellor, the American Blackstone, even Charles Bell, of the Common Bench us hints but fails to name the decisions so before he published his Commentaries. No of England, made, in an important lauded by Kent. Because Kent’s comment one baptized Kent with the power to de- case, a decision which was wholly new was delivered orally, there is no contempo- clare firsts (and seconds). He just said it, in- law in that country; and it was after- raneous record of his words.

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Thompson published his History in 1860, on a “recent work of great excellence and his compliment of Prentiss. Implied in the almost thirty years after the comment was value, the production of an accomplished judgment is the idea that when an Ameri- made. Thompson knew Prentiss as both and experience jurist, justly distinguished can judge agrees with an English judge on

Ruminations were residents of Montpelier, and Prentiss for sound discriminating judgement, and similar facts and comes to the same con- himself is likely the best source of the com- surpassed by none in extensive and accu- clusion on the law, that this constitutes a ment. We have to ask… rate erudition,” Chancellor James Kent. notable accomplishment for the American Kent’s Commentaries, recently published, judge. Following English common law as a What case? settled that a minor’s rights to void a con- precedent is acceptable; finding the same tract were “laid down, after he had been of basis for a legal question at the same ex- Despite a valiant search, no “Sir Charles age a reasonable time, either from his posi- act moment, when as Thompson explained Bell” appears as a judge of the Common tive acts in favor of the contract, or from his came without any communication between Bench in the research for 1829-1830. The tacit assent under circumstances not to ex- the two judges, is somehow self-justifying. Sir Charles Bell who gets most of the atten- cuse his silence.”6 But is it sufficient to justify the compliment? tion in these years is the Scottish surgeon Johns v. Stevens (1830) settled the ob- who first saw the difference between the ligation of a dam owner to compensate Was Prentiss That Good? posterior and anterior nerve roots in the neighboring owners of land flooded to op- spinal cord, in 1807. “Bell’s palsy” is named erate a mill. Prentiss wrote, “If public pol- It’s fair to ask what kind of a judge Sam- for him.4 Suppose Thompson had that part icy require that encouragement should be uel Prentiss was. It’s beyond our powers to wrong. What cases, decided during Pren- given to the building of mills and manufac- reach the same conclusion as Kent as we tiss’s chief judge year might qualify? With tories, and the liability to frequent actions cannot know with whom, other than Sto- that perhaps a coincident decision from at common law will discourage the propri- ry, Kent compared Prentiss. Prentiss wrote the Court of Common Pleas for that year etors of mill seats in this state from build- about 130 decisions while on the Vermont would satisfy the hunt. ing in places where they must overflow the Supreme Court. In those decisions we Looking at the 23 cases decided by Chief land of others, it belongs to the legislature should know the character of Judge Pren- Judge Prentiss in his final year on the court, to interpose, and make such provision as tiss. there are several that fit the description of policy, consistently with justice, may re- Samuel Prentiss was born at Stonington, “new law.” One is State v. Wheeler (1830). quire.”7 Neither Johns nor Bigelow have Connecticut in 1782, and moved with his There the defendant had been charged counterparts in the English reports for that family north to Northfield, Massachusetts, in the information with a felony, while the year. where he was taught classics by the Rev. crime itself, if there was one, was actually The best candidate is Pomeroy v. Mills Samuel C. Allen, read law with lawyer Sam- a misdemeanor. It seemed to the court to (1830), which settled the question of wheth- uel Vose, and later with John W. Blake in be a private matter, not really a criminal of- er a town can convey a part of a public park Brattleboro. Prentiss was admitted to the fense. Chief Judge Prentiss wrote, “Wheth- on which a public easement has been es- bar at the age of 21, in 1803, and practiced er or not the fact alleged in the informa- tablished. The park, still making news to- law in Montpelier for the next 23 years. He tion is a misdemeanor, and can be the sub- day, is the Burlington City Park. Burling- ran for Congress in 1816, but lost. He was ject of a criminal proceeding, is a question ton had not condemned the property for elected to the Vermont Supreme Court in upon which we have entertained doubts, use as a park and courthouse, but dedica- 1822, but declined. He served as Montpe- but upon which we have at length formed tion and acceptance was conceded given lier’s town representative to the Vermont an opinion. The distinction between those the forty years the land had been used for House in 1824 and 1825. While in the legis- trespasses for which there is a private rem- those purposes. Prentiss called it the cre- lature, Prentiss was responsible for legisla- edy only, and those for which there may be ation of a “common highway.” He conclud- tion making the Supreme Court largely ap- a public prosecution, is not laid down in the ed the town had no authority to convey a pellate, eliminating its trial duties. There- books with much accuracy or precision. It part of the property for the use of a private after, while Supreme Court judges served seems, however, to be clear, that though business because it owned only an ease- as presiding officers in the county courts, every trespass, which is a disturbance of ment, not the underlying fee.8 the full court only sat to hear arguments on the peace, is indictable, a mere trespass, There is a case decided by the Court of challenges to the trial court.10 which is the subject of a civil action, can- Common Pleas that turned on the princi- The next year Prentiss was elected an not be converted into an indictable of- ples enunciated in Pomeroy v. Wells. This Associate Judge of the Vermont Supreme fence.”5 If the court adopted the reason- was The King v. Jeremiah Glover, decided Court. In his fifth year on the court, the leg- ing of the appellant, “the doctrine would in November of 1830. Mr. Milner, a lawyer islature elected him Chief Judge. make almost every trespass or injury to pri- representing the purchaser of a footway, Daniel Pierce Thompson described Pren- vate property the subject of an indictment, argued that English statutes authorized the tiss in his History of the Town of Montpe- and would give to the courts a fearful and sale. “But it is not of course the land to be lier: “In person nearly six feet high, well alarming jurisdiction, which could be exer- sold,” he wrote, “because the public have formed, with an unusually expansive fore- cised in general to little other purpose than not the land, but only an easement over head, shapely features, and a clear and vexation and oppression.” Wheeler fits the it.”9 The Court, in the opinion of Lord Ten- pleasant countenance, all made the more description of the Prentiss decision enunci- terden, held that an order for stopping up imposing and agreeable by the affable and ating a new doctrine of law. A review of the a footway cannot direct that the “footway courtly bearing of the old-school gentle- English cases, however, failed to find a co- so stopped should be sold.” That may be man. In his domestic system he was a strict incident case. the best answer. A review of the decisions economist, but ever gave liberally for reli- In Bigelow v. Kinney (1830) Prentiss ruled in the Law Journals for 1829-1830 reveals gious and benevolent objects.”11 Prentiss that an infant’s contract was voidable, not no better example, although reading the was the first President of the Vermont Tem- void, and that once reaching majority age two cases in tandem does not amaze or ex- perance Society, organized in 1828.12 the former infant had to disavow the con- cite, on grounds of coincidence or reason- E.J. Phelps, who memorialized Pren- tract within a reasonable time. Nine years ing, as it had for Kent. tiss in an 1882 talk to the Vermont His- was too long. Silence is acquiescence. It’s a little concerning that Kent used the torical Society, said of him, “Judge Pren- Prentiss relied in part on English law, and coincidence of decisions as the basis for tiss belonged to his own time. He was the

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product of the early days of Vermont.”13 in the report.20 Phelps, perhaps the most respected Ver- In 1830, the legislature elected Prentiss mont attorney of the late nineteenth cen- U.S. Senator. He served one full term, was

Ruminations tury, described Prentiss’s decisions as “dis- reelected in 1836 to another, but then re- tinguished, in the first place, by the most signed just short of the end of his second complete knowledge of the science of the term in 1842 to accept appointment as U.S. law…. [t]heir conclusions arrived at by log- District Judge for Vermont. Prentiss served ical deductions from fundamental prin- in that office until his death in 1857.21 When ciples, in a manner that to every capacity Prentiss went to the U.S. Senate, he went becomes perfectly luminous and decisive.” as “Judge Prentiss.” In that chamber he They were, he thought, “the subject of the earned a second reputation, bringing his most careful, thoughtful consideration, un- skills on the bench to the legislative pro- til nothing that bore upon the conclusions cess. was overlooked, forgotten, or misunder- stood.”14 Phelps did not hold back in his Senator Prentiss appreciation. The judge “deserves to go down to posterity as one of the most high- Samuel Prentiss found the world of poli- ly honored among our New England wor- tics harsher than his exalted place on the thies.”15 Where Kent’s comment was retro- high court. He had been nominated by the spective, Phelps’s praise wanted Prentiss’s Jackson Party, but following his election name to be telegraphed into the future, so had written a letter stating “I do not belong we would never forget him. to the Jackson party, and that in executing Prentiss’s decisions were never over- the trust reposed in me, I shall be guided ruled, wrote Phelps. True in 1882, although by and act in conformity with the opinions at least one was later reversed. Even our and views, known to be entertained by a “finest jurist” could be wrong. His ruling in large majority of the Legislature and peo- State v. Wilkinson (1828), relying in part on ple of this state. On no consideration could the theory that the jury is the judge of the I have accepted the appointment con- facts and the law, was overruled in State ferred, upon me, if my principles required v. Burbee (1892).16 That a perfect record me to act in opposition to the opinions and somehow justifies the commendation of wishes of the state I was chosen to repre- “finest,” is a foolish idea in any case. The sent; and if any one gave me his support, best judges are overruled, often long after under an impression that I should be guid- they have passed away. ed by the views of a minority of the Legisla- One way of knowing a judge’s mind is ture and of the people in opposition to the by reviewing dissents, where the judge dis- sentiments of the majority, it is a matter of agrees with the majority. While on the Su- regret to me that an such misapprehension preme Court, Prentiss dissented only four should have existed.” For this Prentiss was times. In Strong v. Strong (1827), he con- accused of “double dealing, and of a de- cluded that the question at issue (wheth- liberate plan of gaining confidence by false er foreclosure of the equity of redemption pretenses.” “[A]fter mounted to the high- discharges a debt secured by the mort- est round of the ladder of ambition by arts gage) had long been settled in England of dissimilation, [that he] should kick off the for more than half a century, in Massachu- friends who trusted in him, and who lifted setts, New York, and the Circuit Court. The him to the eminence which he could nev- majority was disagreeing with that princi- er have obtained without their aid—is not ple and so mistaken. As “uniformity of de- unexampled—but it is to be hoped that cisions in the several courts is much to be the example will be rare in a government desired,” he refused to “sanction the doc- based on the manly and noble virtues of trine established by the present case.”17 In the people.”22 Town of Stamford v. Town of Whittingham Senator Prentiss rarely spoke, but when (1827), he began his dissent, “I am so un- he did Senators listened. Phelps wrote that fortunate as not to agree with my breth- Prentiss “came to be regarded by many ren in this case.” It was a pauper case, and as the best jurist in the Senate, yet no ju- Prentiss thought the court had diverged rist said so little upon the subject.”23 In the from the strict construction the court usu- Senate history, Prentiss was remembered ally applied to settlement cases. He object- largely for two speeches. ed to the majority’s reliance on a case cit- One encouraged enactment of a law ed in support of the decision, as it was “a prohibiting dueling, including the giving loose note, and not entitled to much cred- or receiving a challenge, within the District it.”18 He thought sustaining the petition in of Columbia. He introduced the legislation Munroe v. Walbridge (1827) was “indulging in March of 1838, a month after William the mortgagees in a very useless proceed- Graves, a Kentucky Congressman, killed ing,” causing him to “inch away” from the Maine Representative Jonathan Cilley in a majority. The report lists him as dissentien- duel. Cilley had accused Graves of bribery te.19 In one other case Prentiss is listed as on the House floor. dissenting, but the opinion is not included In his Remarks on introducing the bill,

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Prentiss said, public opinion prevailing any where to After Prentiss’s death, D.A. Smalley was their obligation, or out of any necessi- appointed to replace him. The Middle- Sir, I might here, with no impro- ty supposed to exist in any quarter of bury Register wrote, “The office is worth

Ruminations priety, speak of the spirit of insubor- the country for unwarrantably interfer- $2,000 per year and nothing to do, except dination and lawless violence that is ing with them.27 to keep clean and respectable.”33 Counting abroad in the land; infecting and per- the reported decisions, Prentiss wrote fif- vading, it would seem, entire com- Thompson recalled that when Prentiss teen decisions as District Judge and eight munities; threatening the subversion ended his remarks, Senator John C. Cal- as a member of the Circuit Court, in his of the established institutions of the houn called the speech the “clearest and fourteen years on the federal court. Judge country; and which, if not checked most unanswerable of any, on a debatable Prentiss’s name appears only once in the and subdued, will, it is to be feared, question, which he had heard for years.”28 U.S. Supreme Court canon. In Gassett v. sooner or later, overthrow all law and Calhoun, Webster, Clay—these were Pren- Morse (1843), Justice John McLean cited all government, and open the way to tiss’s peers. Calhoun once described him as Prentiss’s decision in support of the court’s brutal anarchy and misrule, to scenes the “best lawyer in the Senate.”29 decision on the Bankrupt Act.34 of civil strife and disorder, as sangui- Prentiss spoke about fame in anoth- nary, as terrible, as any which marked er Senate speech. “I would not be under- Kent in Prentiss the ferocious and bloody annals of stood as undervaluing popularity, because revolutionary France.24 I disclaim it as a rule of conduct. I am quite In his decisions over the five years he too humble and unpretending an individ- served on the Vermont Supreme Court His speech on the Bankruptcy act in 1840 ual to count greatly upon it, or to seek for and the fourteen years he was U.S. District was classic Prentiss. He was a Whig at this or desire any which does not arise from the Judge, Prentiss regularly relied on Kent for time (having previously been a Federalist) pursuit of right ends by right means. What- authority. Prentiss cited and quoted Kent and the Whigs supported the bill. Pren- ever popularity that may bring, will be as in Weeks v. Wead (1826), where the fun- tiss opposed it, and his speech was regard- grateful to me as to any one. But I neither damental issue of when ownership of per- ed as prescient, as after the bill passed it cover nor am ambitious of any other.”30 sonal property vests is settled by requiring proved he was right; the law proved to be exclusive and entire possession. “The prin- a disaster. In his remarks, the Senator cited As District Judge ciple,” wrote Prentiss, “has received the Chancellor Kent, “a distinguished jurist in sanction of some of the ablest lawyers, and this country,” for the difference “between Elijah Paine had served as U.S. Dis- been recognized and adopted as a rule bankrupt laws and insolvent laws, and that trict Judge for Vermont for 42 years. He of decision by some of the most enlight- the constitutional power of Congress does was the third District Judge, after Samuel ened courts, in this country.” He described not extend beyond the appropriate objects Hitchcock (1793-1801) and before him Na- how Kent, when he was Chief Justice of the of a bankrupt law as ascertained from es- thaniel Chipman (1791-1793). When Paine New York Supreme Court, had ruled in a tablished usage and practice.” Bankrupt- retired, President John Tyler appointed similar case, quoting Kent with approval.35 cy, Kent had written, is “applicable only to Samuel Prentiss to the office in 1842. Pren- “’The law,’ says Chief Justice Kent, ‘in ev- unfortunate traders, who do certain acts tiss resigned his Senate seat, and Calhoun ery period of its history, has spoken a uni- which afford evidence of an intention to moved, “that instead of committing the form language, and has always looked with avoid payment of their debts.”25 subject, as was usual in similar cases to the great jealousy upon a sale or appropriation Prentiss revealed himself in that speech. Committee on the Judiciary, that the Sen- of goods, without parting with the posses- He said, “it appears to me that there is ate should immediately act upon it on the sion, because it forms so easy and so fruit- much more of humanity than justice in this ground of the perfect fitness of the nomi- ful a source of deception.’”36 Kent was also measure; humanity, however, which, if it is nation, and expressed a strong hope that cited as authority by Prentiss in Hathaway kindness to a few, is cruelty to the many…. the vote would be unanimous. It was so.”31 v. Holmes (1828) in deciding that the dis- that its tendency will be to weaken, greatly As District Judge, Prentiss joined U.S. charge of a party upon a writ of habeas cor- to weaken, if not to destroy, the moral ob- Supreme Court Associate Justice Samu- pus doesn’t preclude the court from juris- ligation hitherto considered as attached to el Nelson as the Circuit Court. E.J. Phelps diction over the cause of confinement.37 In contracts, leaving nothing but the mere na- described how the two worked togeth- Lapham v. Barnes (1828), Prentiss again re- ked legal obligation remaining, and that in er. “Prentiss carried the scales and Nelson lied on Kent as authority, ruling that a sure- truth little or nothing.”26 the sword; Prentiss carried the scales hung ty is equally responsible for a debt with upon the diamond pivot, fit to weigh the other guarantors, but must be sued alone, . . . [B]ut I am an old-fashioned tenth part of a hair, so conscientious, so and not on the underlying debt.38 That all man, fond of old-fashioned princi- thoughtful, so considerate, so complete in three referees must agree in their reports ples and old-fashioned ways, espe- his knowledge of every principle and every of causes referred to them was the con- cially when they are right and just, detail of the law of the land. When he held clusion of Prentiss’s decision in Howard v. and am not at all predisposed to in- up the scales, he not only weighed accu- Conro (1829), in which he sought support dulge in new and untried theories at rately, but everybody felt that he weighed from a Kent decision on essentially the their expense, or to look upon every accurately. His very modesty, the distrust same question.39 The doctrine that more change as a reform, or every reform of himself and fear less he should go too than an answer, under oath, is required to as an improvement. I am entirely and far or too fast, deprived him to some ex- supply proof of a fact, that there must be altogether conservative in my prin- tent of what might be called the courage two witnesses before there can be a decree ciples, my habits of thought, and my of his judicial convictions. Nelson, when against the answer was what Kent ruled; feelings. I have been educated. I have they sat together, always took care to as- Prentiss, in Pierson v. Catlin (1830), relied been taught by my professional read- sure himself from Judge Prentiss that he on Kent to come to the same conclusion.40 ing, by my experiences in judicial life, was right in his conclusions; they never dif- Writing on behalf of the Circuit Court, to respect the obligation of contracts; fered. It would have been very difficult to District Judge Prentiss found succor in and I cannot readily yield to any new have brought Judge Nelson to a different Kent and Story. “The doctrine is so laid doctrine growing out of any laxity of conclusion ….”32 down in all the adjudged cases, with few

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exceptions,” he wrote, “and is recognized his work led to the abandonment of “folk a surprise and a “legal historical mystery.” as the true doctrine by Chancellor Kent in law.” Kent prided himself on one essential Story had never held judicial office. Madi- his Commentaries, and by Judge Story in quality as a judge: “the ability, or willing- son had no personal acquaintance with Sto- 41 46

Ruminations his treatise on Agency.” ness, to put one’s personal preferences, ry. Story proved a good choice. He served Judge Prentiss never disagreed with the and one’s vanity, aside.”43 nearly 34 years on the Supreme Court. He decisions of Kent. The respect is clearly ev- Kent started writing and publishing his is remembered for his opinion in Trustees ident. But Prentiss was diligent in his re- opinions on the New York Supreme Court, of Dartmouth College v. Woodward (1819), search, looking for answers in the English and is celebrated as the originator of the in which he wrote, “It is not for judges to common law. He could not rely on Vermont case reporting system. Justice Story is listen to the voice of persuasive eloquence decisions. There were only a few volumes credited with publishing the first U.S. Su- or popular appeal. We have nothing to do of Vermont case law printed and many of preme Court reports through his work with but pronounce the law as we find it, and the questions the court faced in his time Henry Wheaton. 44 having done this, our justification must be were new to Vermont. In Gassett v. Morse James Kent wrote an autobiographical left to the imperial judgment of country.”47 (1843), District Judge Prentiss began his sketch in 1828 that was first printed years His decision in Martin v. Hunter’s Lessee decision with a personal statement: after his death. There he revealed the cast (1816) established the authority of fed- of his mind. “I have had nothing more to eral court over state courts when feder- At the hearing of this case I had a aid me in all my life than plain method, pru- al constitutional issues were construed by very strong opinion upon it, and ordi- dence, temperance, and steady, persever- the states.48 In Prigg v. Commonwealth of narily should have pronounced an im- ing diligence.” Pennsylvania (1842), Story upheld the fugi- mediate decision; but as the case was tive slave law.49 one of a good deal of magnitude, and My practice was first to make myself of great interest, especially to one of perfectly and accurately (mathemati- Story on Kent the individuals concerned in the trans- cally accurately) acquainted with the action, I thought it my duty on that ac- facts. It was done by abridging the bill Joseph Story dedicated his Commentar- count, more than on account of any and the answers, and then the deposi- ies on the Conflict of Law (1834) to James real difficulty in the case, to examine it tions; and, by the time I had done this Kent, as a “tribute of respect to a distin- fully. I have taken pains to go through slow and tedious process, I was mas- guished Master from his grateful pupil.” He all the cases having any bearing upon ter of the case, and ready to decide it. praised Kent for “a maturity of judgment, the subject, have read them attentive- I saw where justice lay, and the moral a depth of learning, a fidelity of purpose, ly and thoroughly, and the result has sense decided the case half the time. and an enthusiasm for justice, which have been a full confirmation of the opinion And then I sat down to search the laid the solid foundations of an imperish- I at first entertained.42 authorities until I had exhausted my able fame.”50 In Story’s Commentaries on books; and I might, once in a while, be Equity Jurisdiction (1933), he explained Samuel Prentiss was a fine jurist, an ex- embarrassed by a technical rule, but I that equity “did not attain its full maturi- cellent jurist. Who then was this Kent who almost always found principles suited ty and masculine vigor until Mr. Chancellor thought him “finest”? to my views of the case, and my object Kent brought to it the fullness of his own was so to discuss the point as never to extraordinary learning, unconquerable dili- Kent be teased with it again, and to antic- gence, and brilliant talents.”51 ipate an angry and vexatious appeal When he was 25 and a state legislator James Kent was born in Doanesburgh, to a popular tribunal by disappointed from Massachusetts, Joseph Story visited New York in 1763. He graduated from Yale counsel.45 the courtroom of the New York Supreme in 1781 and began practicing law in Pough- Court in 1807 for the particular purpose of keepsie in 1787. He served in the New York And finally, who then was Joseph Story, watching Chancellor Kent in action. Story State Assembly in 1793, and then moved who Kent thought wasn’t the finest judge wrote of that day, “His celerity and acute- to New York City where his career in public in New England? ness stuck me immediately.” Perhaps Kent life began, first as Master of Chancery for “had a little too much haste.” He “has a the city. He was the first Professor of Law Story careless manner of sitting, which, though at Columbia College, beginning in 1793, rather ungraceful, was pleasant to see. On and elected a Justice of the New York Su- Joseph Story was born in Marblehead the whole, if he be not a very grate [sic] preme Court in 1804, serving until his ap- Massachusetts in 1779, and was a gradu- man, I am satisfied he is not humble in his pointment as Chancellor in 1814. In 1823, ate of Harvard College (1795). He read acquirements.”52 Kent would not have seen Kent was retired, having reached the man- the law and opened a practice in Salem. this comment, as Story’s words were never datory age of 60 years. His four volumes of In 1805 he represented Salem in the Mas- published until after both had died. Commentaries on American Law were pub- sachusetts legislature; in 1808 he served Story wrote an article in the North Amer- lished, beginning in 1826, based on his lec- part of a term in the U.S. House, and he re- ican Review in 1820, describing the ori- tures at Columbia. Kent retired in 1837. turned to the legislature in 1810, serving as gins of equity jurisdiction in America and It was said of Kent that he hated practic- Speaker of the House in 1811. That year he reviewing Johnson’s Reports, where Kent’s ing law and was a boring lecturer. No one was 32 years of age, and chosen by Presi- decisions were published. “[P]erhaps,” showed up for some of his lectures. He said dent James Madison to serve as an Associ- he wrote, “it is not too much to say, that he was proud to be “free from all dissipa- ate Justice on the Supreme Court. Madi- [equity] did not attain its full maturity and tion, and chaste as pure, virgin snow. I had son had nominated John Quincy Adams masculine vigor, until Mr. Chancellor Kent never danced, or played cards, or sport- and the Senate had unanimously confirmed bought it to the fulness of his own brilliant ed with a gun, or drank anything but wa- him, but Adams declined the office, claim- talents.” ter.” Kent’s decisions were the first to be ing he was “conscious of too little law.” Story stated, “It required such a man, published in New York, beginning in 1798. Story became the youngest justice ever to with a mind, at once liberal, comprehen- Robert S. Smith has written Kent turned serve on the U.S. Supreme Court. sive, exact, and methodical; always rever- the law into a learned profession, and that Charles Warren described the choice as ing authorities, and bound by decision;

20 THE VERMONT BAR JOURNAL • SPRING 2021 www.vtbar.org Ruminations true to the spirit, yet more true to the let- ate forfeiture of vessels found in violation ter of the law; pursuing principles with a of the privilege, without hearing or trial. severe and scrupulous equity;--it required Aaron Ogden had purchased the franchise. such a man, with such a mind, to unfold the Thomas Gibbons, licensed under federal doctrines of chancery in our country, and law to carry on the coastal trade, put two to settle them upon immoveable founda- steamboats into service between Eliza- tions.”53 bethtown and New Jersey. Ogden sought The article led Kent to write to Story: “I an injunction from the New York Court of have pretty good reason to believe I am in- Chancery, which granted it in 1818. Chan- debted to you for the very flattering notice cellor James Kent’s opinion concluded the of my judicial labor, contained in the last federal constitution was not offended by number of the North American Review, and the New York act. On appeal, the New York I cannot refrain from taking the liberty to as- Supreme Court affirmed Kent’s decision, sure you that nothing could be more grate- explaining, somewhat poetically, “We do ful to my feelings, than to be thus honored not call to our aid Neptune with his trident; by your pen. I am deeply grateful for the we invoke only the goddess Minerva.”56 frank, liberal, and manly sentiments con- On appeal to the U.S. Supreme Court, tained in the Review, and it will always con- Daniel Webster argued the appellant’s tinue to be one of the highest objects of case. He urged reversal on several grounds, my ambition, to cultivate and deserve your in spite of the fact that New York’s judicial esteem and friendship. Nor am I insensible tribunals, by Chancellor Kent, “than which (permit me to say), to the easy and elegant there were few, if any, more justly enti- manner in which you display your various tled to respect and deference,” had sanc- learning and cultivated taste, and exhibit tioned the law. The power to regulate com- the rich treasures of your intellect on ev- merce was “complete and entire,” he said. ery topic connected with jurisprudence.”54 Thomas J. Oakley, for Ogden, pointed to Raising the delicate issue of competition, the “principle, that the States do not de- Kent added, “I certainly do not pretend to rive their independence and sovereignty rival you in the rapid and wonderful career from the grant or concession of the British of your judicial acquisition.” crown, but from their own act in the dec- Story wrote Kent in return, saying, “In laration of independence.” New York state paying you my public tribute of respect was sovereign and independent. The fed- and reverence, I have done no more than eral constitution was “one of limited and perform a duty which every professional expressly delegated powers,” and “not a man owes to the science of jurisprudence, restriction of power previously possessed,” and which I more particularly owe to you, embracing the Tenth Amendment’s ex- from the abundant instruction I have de- press reservation of state power. The pow- rived from your labors.”55 er is plenary. According to Thompson, Kent called Chief Justice John Marshall wrote the Prentiss the finest jurist in New England in decision, ruling the injunction void. The 1830 or 1831. The nice words Kent said of Contract Clause preempts state legislation and to Story and Story of and to Kent had regulating commerce that extends beyond come ten years earlier. Of course, what we the borders of the state. The “power of say in “private,” as opposed to what is writ- Congress does not stop at the jurisdiction- ten down (and saved), are often two differ- al lines of the several States.” ent things. Was Kent dissing Story by put- Associate Justice Joseph Story joined ting him second to a Vermont jurist? Or the majority in overturning Chancellor perhaps Story, being such an important ju- Kent’s order.57 rist, was used by Kent in the same way we This reversal came while Kent was still might praise a child’s drawing by saying Pi- Chancellor. In Volume 1 of his Commentar- casso couldn’t have done better himself. ies, he wrote several pages about the case. Picasso loses nothing by the comparison, His comment sounds defensive. “The only and the child stands taller hearing the com- great point on which the Supreme Court of ment, and carries that memory with them the United States and the courts of New all the days of their life. York have differed, is in the construction and effect given to the coasting license.”58 Gibbons v. Ogden Kent on Story As Chancellor, Kent was reversed only once. In Gibbons v. Ogden (1824), the year After Story died, Kent called him “one of following Kent’s retirement, the high court the rarest and best friends I had the hon- struck down his ruling. The New York leg- or and happiness to possess. He has done islature granted Robert R. Livingston and more by his writing and speeches to diffuse Robert Fulton the “exclusive navigation of my official and professional character (far all waters” within that state, “with boats indeed beyond my deserts) than any living moved by fire or steam,” for a term of man.”59 twenty years. The law authorized immedi- Compare these warm and mutually sup- www.vtbar.org THE VERMONT BAR JOURNAL • SPRING 2021 2 1 porting words with how Kent treated Aaron 2017). Watchman and State Journal Press, 1882), 449. 5 29 Burr when they met on a New York street State v. Wheeler, 3 Vt. 344, 347 (1830). The National Cyclopædia of American Biogra- 6 Bigelow v. Kinney, 3 Vt. 353, 360 (1830). phy VIII (New York: James T. White & Company, after Burr had been tried and acquitted of 7 Johns v. Stevens, 3 Vt. 308, 315 (1830). Lat- 1898), 402. 30 Ruminations treason. “You are a scoundrel, sir—a scoun- er the legislature passed a law authorizing mill Phelps, “Samuel Prentiss,” 18. drel!” said Kent. Burr raised his hat, made owners to sue to condemn land for flowage pur- 31 “The Late Judge Prentiss of Vt.,” Orleans In- a sweeping brown, and said, “The opinions poses in county court, an act that was struck dependent Standard, 3 April 1857, 3. down as violating Article 2 of the Vermont Con- 32 Binney, The History and Genealogy of the of the learned Chancellor are always enti- Prentice, Or Prentiss Family 60 stitution, as mills were not “public purposes.” , 391. tled to the highest consideration.” Tyler v. Beacher, 44 Vt. 648 (1871). 33 Orleans Independent Standard, 20 February 8 Pomeroy v. Mills, 3 Vt. 279 (1830). 1857, 3. Nice Words 9 The King v. Jeremiah Glover, The Law Journal 34 Buckingham v. McLean, 54 U.S. 150, 157 for the Year 1831 Comprising Reports of Cases (1851); Gassett v. Morse, 21 Vt. 625 (1843). 35 61 in The Courts of Chancery, King’s Bench, Com- Weeks v. Wead, 2 Aik. 54, 68 (1826). You’re the top. You’re the Colosseum. mon Pleas, Exchequer of Please, and Exchequer 36 Ibid., 71. You’re the greatest. Pile up the compli- Chamber from Michaelmas Term 1830, to Trin- 37 Hathaway v. Holmes, 1 Vt. 405, 418 (1828). ments, the plaques, awards, diplomas, li- ity Term 1831, Both Inclusive, IX (London: James 38 Lapham v. Barnes, 2 Vt. 213, 219 (1828). censes, honorary degrees, and memori- Holmes, 1831), 38-39. 39 Howard v. Conro, 2 Vt. 492 (1829). 10 40 Pierson v. Catlin als, and maybe history remembers you that Russell S. Taft, “The Judicial History of Ver- , 3 Vt. 272 (1830). mont,” in The New England States: Their Con- 41 Bradley v. Richardson, 23 Vt. 720, 2 Blatchf. way. That’s also the way history uses you. stitutional, Judicial, Educational, Commercial, 343 (1851). Vermont, as every state and nation, cele- Professional and Industrial History III, ed. William 42 Gassett v. Morse, 21 Vt. 627 (1843). brates its heroes as a way of justifying its T. Davis (Boston: D. Hurd, 1897), 1421; “An act 43 Robert S. Smith, “Chancellor James Kent: Fa- integrity. Kent thought Prentiss the “finest constituting the Supreme Court of judicature, ther of American Jurisprudence,” 13 Jud. Notice and County Courts, defining their powers, and 4, 2018. jurist in New England.” We use the com- regulating judicial proceedings,” March 2, 1797, 44 Judith S. Kaye, “Commentaries on Chancellor ment to prove that one small rural state Laws of the State of Vermont of a Publick and Kent,” 74 Chicago-Kent Law Review (December can produce people who can compete Permanent Nature (1825), Sec. 56, 74-75. 1998) 12, 17, fn. 20. with the best of those from other states in 11 Thompson, “Montpelier,” 454. 45 James Kent, “Autobiographical Sketch,” The 12 Walton’s Vermont Register and Farmer’s Al- Southern Law Review manifesting brilliance. The comment be- I:3, July 1872. manak (Montpelier, Vt.: E.P. Walton, 1829), 142. 46 Charles Warren, The Supreme Court in United comes something to boast about. It gives 13 E.J. Phelps, “Samuel Prentiss: An Address States History I (Boston: Little, Brown, and Com- us a warm feeling that once there were before the Vermont Historical Society,” Octo- pany, 1922), 415-416. Vermonters who were appreciated, not just ber 26, 1882 (Montpelier, Vt.: State of Vermont, 47 Trustees of Dartmouth College v. Woodward, here, but nationally. 1882), 4. 17 U.S. 518, 713 (1819). 14 Ibid., 9. 48 Martin v. Hunter’s Lessee, 14 U.S. 304 (1816). Lawyers and judges seldom get com- 15 Phelps described the last time he met Pren- 4 Prigg v. Commonwealth of Pennsylvania, 41 pliments. Oh, a judge might comment, at tiss. “He was as charming to look at as a beau- U.S. 539, 16 Pet. 529 (1842). the end of a trial, that both attorneys per- tiful woman, old as he was. His hair was snow 50 Joseph Story, Commentaries on the Conflict formed well. This is usually said before the white, his eyes had a gentleness of expression of Law, Foreign and Domestic, In Regard to Con- tracts, Rights, and Remedies verdict. Lawyers seldom congratulate each that no painter could do justice to; his face car- (Boston: Billiard, ried on every line of it the impress of thought, of Gray, and Company, 1834), v-vii. other, and judges must find their applause study, of culture, of complete and consummate 51 Joseph Story, Commentaries on Equity Juris- in their imaginations. Some lawyers display attainment. His cheek had the color of youth. prudence I (Boston: Hillard, Gray & Company, plaques on office walls, proving their com- His figure was as erect and almost as slender as 1836), 63. 52 petence. They are Super Lawyers or the that of a young man. His old fashioned attire, the William W. Story, ed., The Life and Letters of Joseph Story “Best Lawyer of 2020” or a “Lawyer of Dis- snowy ruffle, and white cravat, the black velvet (Boston: Charles Little & James waistcoat, and the blue coat with brass buttons, Brown, 1851), 244-245. tinction.” These present proof by plaque was complete in its neatness and elegance.” 53 Ibid., 232. that your lawyer is one of the finest. Rep- Ibid., 21. 54 Ibid., 377-378. utations are fragile vessels. We all want to 16 State v. Wilkinson, 2 Vt. 480 (1828); State v. 55 Ibid. Burpee 56 Gibbons v. Ogden be defined as the best at something, and , 65 Vt. 1 (1892). , 17 Johns. 488, 508 (1820). 17 Strong v. Strong, 2 Aik. 373, 380 (1827). 57 Gibbons v. Ogden, 22 U.S. 1, 9 Wheat. 1 few would mind a little praise now and 18 Town of Stamford v. Town of Whitingham, 2 (1824). again, if only to keep us going through the Aik. 188, 193 (1827). 58 O.W. Holmes, Jr., ed., James Kent, Commen- long and fearful nights. 19 Munroe v. Walbridge, 2 Aik. 410 (1827). taries I Twelfth Edition (Boston: Little, Brown, 20 ______Batchelder v. Carter, 2 Vt. 168 (1829). 1873), 432-438. 21 The History and 59 Paul S. Gillies, Esq., is a partner in the Charles James Fox Binney, John B. Cassoday, “James Kent and Joseph Genealogy of the Prentice, Or Prentiss Family, Story,” Yale Law Journal XII (Jan. 1903), 146-153. Montpelier firm of Tarrant, Gillies & Rich- in New England, Etc. from 1631 to 1863 (Bos- 60 Judith S. Kaye, “Commentaries on Chancellor ardson and is a regular contributor to the ton: Charles James Fox Binney, 1883), 385 “The Kent,” 14. Vermont Bar Journal. A collection of his col- Late Judge Prentiss of Vt.,” Orleans Indepen- 61 Cole Porter wrote “You’re the top” for Any- umns has been published under the title of dent Standard, 3 April 1857, 3. thing Goes in 1934. 22 Vermont Gazette Uncommon Law, Ancient Roads, and Other “The Mask Off,” , 30 No- vember 1830, 3. Ruminations on Vermont Legal History by 23 Phelps, “Samuel Prentiss,” 17. the Vermont Historical Society. Paul is also 24 Samuel Prentiss, Speeches of the Hon. Sam- the author of The Law of the Hills: A Judi- uel Prentiss of Vermont upon the Bill to Prohibit (© 2019, Vermont the Giving or Accepting Challenges to Duels in cial History of Vermont the District of Columbia and for the Punishment Historical Society). thereof (Washington: Gales and Seaton, 1838), ______4. 1 Daniel Pierce Thompson, History of the Town 25 Sen. Samuel Prentiss, Speech of Mr. Prentiss, of Montpelier (Montpelier, Vt.: E.P. Walton, of Vermont on the Bankrupt Bill, Delivered in 1860), 282. the Senate of the United State, June 23, 1840 2 W.H. Lord, “Obituary,” Vermont Chronicle, (Washington: Gales and Seaton, 1840), 6-7. June 8, 1857, 4. 26 Ibid., 11, 13. 3 Thompson, “Montpelier,” 281-282. 27 Ibid., 17. 4 See Michael J. Aminoff, Sir Charles Bell His 28 Daniel Pierce Thompson, “Montpelier,” in Life, Art, Neurological Concepts, and Controver- Abby Maria Hemenway, ed., The History of sial Legacy (New York: Oxford University Press, Washington County (Montpelier, Vt.: Vermont

22 THE VERMONT BAR JOURNAL • SPRING 2021 www.vtbar.org

WHAT’S NEW

What’s new? Well, everything! At long last, the VBA has completed its migration to a new website and database provider! Our new website is now visible at the same web address, www.vtbar.org. We encourage you to explore the relaunched site which has been rede- signed to be more simplified and user-friendly (and mobile-friendly). The VBA team has been working for several months with IntelLinx, our new membership AMS (Association Management System), to roll out our website and database. Please know we are working diligently to make this experience as easy and smooth as possible for you. You should have received an auto-generated email in the pre-dawn hours of May 3rd with your new login from IntelLinx at your currently registered email address with a temporary password. Please use this to log into your account on IntelLinx and verify that your personal information is correct. This email communication and emails going forward for events and membership updates will come from commu- [email protected], so please whitelist this domain. We recommend you change your temporary password to one of your own. The system will allow you to reset it to your old password if you wish, and will give you the ability to reset your own passwords going forward. If you have any issues or did not receive the email, please call the VBA office at 802-223-2020.

TIPS: • How do I log into my account? You received an autogenerated email from IntelLinx AMS on May 3 with your UserID and temporary password. Please look for an email from communications@intouchon- demand.com and make sure you mark this email address as Safe Sender or Not Spam. Use this to log in and verify your information. You can change your password once you are logged in here:

• Can I still register online for CLE courses? Yes. Registration will be much smoother, including the ability to see your own registrations in your portal, track your registrations and have immediate access to zoom webinar links and Certificates of Attendance. You can use the CLE tracker to keep track of your CLE’s going forward and also manually add any CLE’s.

• Will this login work for CaseMaker? Yes. The single sign-on feature for CaseMaker will be the same and the CaseMaker link will still be at the top of our website.

• Will this login work for VBA Connect? Not at this time, but we are working diligently on the SSO (single sign- on) for Higher Logic. Your email ad- dress and hence your membership will be recognized by Higher Log- ic and you will merely need to use the “Forgot Password” link to set up your VBA Connect password di- rectly. You may use the same pass- word. You can access VBA Connect the same way you did before, from the top of our website:

• What are some of the new features? • The new website, all services, and your membership portal can be accessed via any web enabled device (desktop, laptop, tablet, and smartphones) • You may review and edit your bio, and upload a photo if you desire • The Lawyer Referral Service portal will enable you to track your referrals directly, pay online and electronically file your reports • You will be able to update your membership profile, renew your membership, register for events, track your CLE, access Case- Maker, etc., all from your portal • The streamlined website is mobile-friendly and has more simplified navigation • Our webinar service will be converting to Zoom webinars, from Webex events, so that our registrations will integrate with Zoom, providing you with immediate access information at the time of registration.

Please reach out to us at [email protected] with any questions, concerns or feedback you may have about this new launch. We are very excited about our new website and Membership AMS and we know you will find it to be a great improvement!

24 THE VERMONT BAR JOURNAL • SPRING 2021 www.vtbar.org by Samara D. Anderson, Esq. BE WELL If you have 5 minutes, you can activate your own internal happiness!1

As a busy professional, I know that it can 2. Take 10 Deep Breaths. be overwhelming to hear a new habit or rou- tine that I should incorporate into my day Researchers have broken down 4 pillars when it already feels too full. But, increas- essential to cultivate mental well-being: ing your happiness does not take hours out of awareness, connection, insight and pur- your day and can be completed in just a few pose. Cultivate awareness through fo- minutes. And even though the time invested cused breathing. All forms of mindful- may be small, these “happiness hacks” pay ness meditations cultivate these aspects dividends all day long. of mental well-being, and only take a So, take less than 5 minutes and just try few minutes each day! one of these 5 happiness hacks, determining for yourself if the reward outweighs the mini- 3. Listen to a Happy Song (bonus points mal time invested: if you dance too).

1. Tackle Your Hardest Task First Thing in Hearing happy music is on par with mind- the Day. fulness meditation. Studies have shown it improves overall well-being and mood, Humans can rewire their brains. We have lowering feelings of stress. Bonus points certain “happy chemicals” and we can for dancing or moving your body along develop conscious habits that turn those with the music, which can help increase chemicals on. Dopamine, which creates energy levels even further! a sense of accomplishment, is stimulat- ed when you start your most difficult task 4. For a few minutes, focus on the peo- of the day first thing in the morning! If ple who you trust to always be there the task is not something you can com- for you. plete in 5 minutes, break it into smaller chunks. The overall goal is to focus on a Oxytocin is not only a cuddle chemical, specific target, accomplish it and receive it is also associated with feelings of trust. the benefits of feeling proud of yourself To stimulate it, think of people you trust. all day long. For me, it is making sure Ask yourself “If I need support, who will I exercise or am active first thing in the be there?” You can connect with them morning. by sending a quick text or giving them a call. If in person, give them a hug. These simple moments of social connec- tion with someone you love and admire are a big-time happiness booster. Just thinking about who is in your “herd” can be enough. It stimulates the brain’s oxy- tocin and helps you feel safe and secure.

5. Do something kind for someone (or just think kind thoughts).

Daily acts of kindness are a simple way to boost happiness. They can be small, but they must be deliberate. Intentionally set a goal to be kinder to others. You can also spend some time cultivating a sense of kindness toward something in your head. ______1 Reformatted from article, “5 Happiness Hacks that Take 5 Minutes Or Less, by Cathe- rine Pearson (5/12/21), https://www.huffpost. com/entry/happiness-hacks-five-minutes-or- less_l_609bf35fe4b0909247fe3f9f

www.vtbar.org THE VERMONT BAR JOURNAL • SPRING 2021 2 5 Access to Justice Campaign 20/21

The Vermont Bar Foundation’s Access to Justice Campaign ended in a grand fashion thanks to almost 400 donors who made this our best campaign ever. Your generosity helped us raise over $163,000. This money will be used to fund the first year of Emily Kenyon’s Pov- erty Law Fellowship, as well as add to VBF’s competitive grants program. Big donors really stepped up this year as our Partners in Justice contest spurred on some friendly competition between law firms. Ironi- cally, our largest donor wasn’t a firm, but Vermont Attorneys Title Corporation. Their $17,500 gift was the largest donation and garnered VATC the distinction of being the campaign’s top donor. There were two prizes awarded to firms who had 100% staff participation in the campaign. Martin, Harding & Mazzotti, LLP and Massucco & Stern P.C. took the honors in this category. We look forward to expanded participation in next year’s Partners in Justice. Bonnie Badgewick and Fritz Langrock co-chaired the campaign. Fritz set a wonderful tone by creating what he referred to as the 10% challenge to get law firms to give a little bit more. Langrock Sperry & Wool, LLP boosted their annual donation from $10,000 to $11,000. We were happy to see that two firms, Primmer Piper Eggleston & Cramer PC and Sheehey Furlong & Behm P.C. also rose to the 10% challenge. Bonnie was masterful in getting firm and individual donations in central Vermont. Big thanks to the rest of the committee: Judge Carlson, James Valente, Will Vasiliou, David Scherr and Renee Mobbs. Everyone worked very hard and reached out to their respective counties, friends and family. The VBF Board also did a stellar job reaching out to members of the bar. The success of any campaign depends on many people all working for a greater goal. This year’s campaign is evidence of that. Below is the comprehensive list of donors. We thank all of you for your generosity. If you’d like to be part of the Access to Justice Com- mittee, please reach out to Josie Leavitt, [email protected].

Leadership Donors Associate Donors • Gavin Boyles, Esq. $15,000 - $20,000 Up to $999 • Brady / Donahue • Vermont Attorneys Title Corporation • Anonymous (14) • Cynthia L. Broadfoot, Esq. • Sam Abel-Palmer, Esq. • Hon. Colleen A. Brown • Brian M. Amones, PC • Victory Brown, Esq. Of Counsel Donors • James Anderson, Esq. • Vanessa Brown, Esq. $10,000 - $14,999 • Robert Appel, Esq. • David B. Brown, Esq. • Dinse P.C. • Bridget C. Asay, Esq. • Hon. Lawrence H. Bruce • Downs Rachlin Martin PLLC • Mary C. Ashcroft, Esq. • Susan M. Buckholz, P.C. • Langrock Sperry & Wool, LLP • David Austin, Esq. • Buehler & Annis, PLC • Primmer Piper Eggleston & Cramer PC • Deb Austin • Robert Butterfield, Esq. • Eric Avildsen, Esq. and Faith Ingulsrud • Maria Byford, Esq. • Deborah Bailey • David Cain, Esq. • Renee Staudinger Calabro, Esq. Director Donors • Gretchen S. Bailey, Esq. • Barber & Waxman • Scott Cameron, Esq. $5,000 - $9,999 • Danforth Cardozo, Esq. • Paul Frank + Collins P.C. • Amber Barber, Esq. • Hon. Tom Carlson and Nancy • Hon. Beth Robinson and Kym Boyman • Jessa and Justin Barnard, Esqs. • Edward Carroll, Esq. • Sheehey Furlong & Behm P.C. • M. Robin Barone, Esq. • Hon. Karen R. Carroll • Vermont Community Foundation • Barr Sternberg Moss Silver & Munson, P.C. • Matthew Carter, Esq. • Hon. David A. Barra and Barbara • Linda Cassella • Sylvia Bartell • Jayne Cawthern Partner Donors • Rachel Batterson, Esq. • Mark F. Chadurjian, Esq. $1,000 - $4,999 • Bauer Gravel Farnham LLP • Robert B. Chimileski, Esq. • Anonymous • Patricia G. Benelli, Esq. • Clark, Werner & Flynn, P.C. • Tiffany Bluemle and Elizabeth Shayne • Christopher M. Bennett, Esq. • Cleary Shahi & Aicher P.C. • James F. Carroll, Esq. and Nancy • Eugene Bergman, Esq. • Julia J. Compagna, Esq. • Hon. John Dooley and Sandra • Elijah Bergman, Esq. • Colleen Conti, Esq. • Fitts, Olson & Giddings, PLC • Jeffrey Bernstein, Esq. • Hon. Cortland Corsones and • Hershenson, Carter, Scott, & McGee, • Laura Bierley, Esq. Teri Corsones, Esq. P.C. • Patrick L. Biggam, Esq. • Anne E. Cramer, Esq. • Ruth Lippincott, Esq. • Leo Bisson, Esq. • Crispe & Crispe • Marjorie and Michael Lipson • Jennifer Blomback • William E. Dakin, Jr. • J. Stephen Monahan, Esq. • Elizabeth Bluemle • Daly & Daly, P.C. • Jerome O’Neill, Esq. • Kathleen M. Boe, Esq. • Beth Danon, Esq. • Rutland County Bar Association • Geoffrey Bok • Hon. Amy Davenport • VBA Young Lawyers Division • Raymond Bolton, Esq. • Dan M. Davis, Law Ofc. • William Vigdor, Esq. • Hillary Borcherding • Tanya Davis • Hon. John P. Wesley • David Borsykowsky, Esq. • Amy E. Davis, Esq. • Windham County Bar Association • Mary Bouchard, Esq. • Anne Day, Esq. • Woolmington, Campbell, Bent & Stasny, • Francesca Bove, Esq. • David Deal, Law Ofc of, PLC PC • Richard K. Bowen, Law Ofc of • Angelina Debeaupuis, Esq.

26 THE VERMONT BAR JOURNAL • SPRING 2021 www.vtbar.org Access to Justice Campaign 20/21 • Christopher D’Elia • Dan and Shelley Jerman • Hon. Thomas J. Devine • Jaye Johnson, Esq. • Jay Diaz, Esq. • Hon. Ben Joseph • Judith F. Dickson, Esq. • Walter Judge, Jr., Esq. • Judith L. Dillon, Esq. • Hon. Michael Kainen • Mark DiStefano, Esq. • Hon. Howard Kalfus • Timothy Doherty, Esq. • Carey Kaplan • Anthony Donn • Keith Kasper, Esq. • Mike Donofrio, Esq. • Kevin Kelly, Esq. • Vincent J. Dotoli, Esq. • Kenny & Gatos, LLP • Bryden Dow, Esq. • Stephen Kiernan • Priscilla B. Dube, Esq. • Jean Kiewel, Esq. • James A. Dumont, Law Ofc. Of • Michael Kiey, Esq. • Anthony Duprey • Patricia A. Killigrew, Esq. • Kelsey Eberly, Esq. • John Kind, Esq. • Stephen D Ellis, Esq. • Kevin Kite, Esq. • Rebecca Ellis, Esq. • Hon. Scot Kline and Victoria Brown • David Englander, Esq. • F. L. Kochman, Inc. • Tim Eustace, Esq. • Cindy Koenemann-Warren, Esq. • John Evers, Esq. • W. David Koeninger, Esq. • Jennifer Faillace • Roger Kohn, Esq. • Hon. David Fenster • Jon Kopecky • Geoffrey M. FitzGerald, Esq. • Pamela Kraynak, Esq. • Robert Fletcher • Elizabeth Kruska, Esq. • Peg Flory, Esq. • Sophia Kruszewski, Esq. • Danielle Fogarty, Esq. • Bernard D. Lambek, Esq. • Patricia M. Fontaine • John B. Lamson, Esq. • Richard P. Foote, P.C. • Kyle Landis-Marinello, Esq. • Kim Fountain • Francis Landrey, Esq. • Ronald Fox, Esq. • Louise Landry • Thomas French, Esq. • Fritz Langrock, Esq. • James C. Gallagher, Esq. and Susan • Peter M. Lawrence, Esq. • Erin Gallivan, Esq. • Wesley Lawrence, Esq. • Gay & Lesbian Fund of Vermont, Inc. • Josephine Leavitt • James Gelber, Esq. • Samantha Lednicky • Alan George, Esq. • Sandra Levine, Esq. • Hon. Robert Gerety • Hon. Joseph M. Lorman • Matthew Getty, Esq. • Kevin Lumpkin, Esq. • Rita Gilbride • Ashley Mahoney • Arnold N. Gottlieb, Esq. • Jacqueline Majoros, Esq. • Benjamin Gould, Esq. • John P. and Lynn P. Maley • Emily J. Gould, Esqs. • Zachary Manganello, Esq. • Bryan Granger • Andrew Manitaky, Esq. • Hon. Brian J. Grearson • Marsh & Wagner, P.C. • Michael Green, Esq. • Marsicovetere & Levine Law Group, P.C. • Hon. Kevin W. Griffin • William (Trey) Martin, Esq. • William Griffin, Esq. • Hon. Stephen B. Martin and Nancy • David and Patricia Hallam • Kelly Massicotte, Esq. • Heather Hammond, Esq. • Massucco Law Offices, P.C. • George Harwood, Esq. • Raymond Massucco, Esq. • Nate Hausman, Esq. • Gregory V. Mauriello, Esq. • Hon. Katherine A. Hayes • James C. and Natalia E. May • Hayes Windish & Badgewick • John McCamley, Esq. • Richard Hecht, Esq. • Diane McCarthy, Esq. • Erin and Jaimesen Heins, Esqs • McClallen & Associates, P.C. • Robert Hemley, Esq. • McClintock Law Office, PC • Judson E. Hescock, Esq. • John J. McCullough, III, Esq. • Hon. David Howard • Hon. Kerry McDonald-Cady and • Gregory P Howe, Esq. Christopher Cady • Hon. Christine Hoyt • Scott McGee, Esq. and Cathy • Hans Hussey • Thomas JP McHenry • Joel P. Iannuzzi, Esq. • Devin McKnight, Esq. • Will and Fran Irwin • McNeil, Leddy & Sheahan, PC • Erin Jacobsen, Esq. • Christopher McVeigh, Esq. • Raymond James, Esq. • Hon. Robert A. Mello • Duffy Jamieson • Amy Menard, Esq. • Christopher Janeway • Meub Associates, PLC www.vtbar.org THE VERMONT BAR JOURNAL • SPRING 2021 2 7 • Stuart Meyer, Esq. and Laura • Amelia W. Silver, Esq. • Eric and Liz Miller, Esqs. • Morris Silver, Esq. and Torrin • Suzanna Miller, Esq. • Hon. Eleanor W. Smith • Edward A. Miller, Esq. • George E. Spear, II, Esq. • Renee Mobbs, Esq. • Navah Spero, Esq. • Glenn Morgan, Esq. and Betsy • James Spink, Esq. • Jason P. Morrissey, Atty at Law • Joshua Stern, Esq. • Laura Murphy, Esq. • Harold B. Stevens, Esq., P.C. • Hon. J. Garvan Murtha and Nicole • David Stewart, Esq. • Bradley D. Myerson, Law Offices • Stitzel, Page & Fletcher, PC • Mark and Marilyn Neagley • Sarah Swank, Esq. Access to Justice Campaign 20/21 • Karl W. Neuse, Esq. • Hon. Mary Miles Teachout • William P. Neylon, Esq. • Chris Tebbetts • Sarah North, Esq. • Sumru Tekin • Elizabeth Novotny, Esq. • Jonathan Teller-Elsberg • Zarina O’Hagin, Esq. • Charles R. Tetzlaff, Esq. • Hon. John Pacht • Joel Thompson, Esq. • Sandra Paritz, Esq. • Erick Titrud, Esq. • Harry Parker, Esq. • Hon. Timothy B. Tomasi • Fred Peet, Law Office of • Hon. Helen M. Toor • Constance Pell, Esq. • Benjamin Traverse, Esq. • Phillips, Dunn, Shriver & Carroll, PC • Gordon ER Troy, PC • Andrew C. Pickett, Esq. • Micaela Tucker, Esq. • Hon. Dean Pineles • Patricia Turley, Esq. • Jessica Pollack • Oliver L. Twombly, Esq. • David Pollock, Esq. • Edward J. Tyler, III, Esq. • Jeffrey Polubinski, Esq. • Andrew V. Urbanowicz, Esq. • Brian Porto, Esq. • Julia Uris • Charles Powell • James A. Valente, Esq. • Powers & Powers P.C. • Thomas Valente, Esq. • Kimberly Pritchard, Esq. • Martha Van Oot, Esq. • Putnam & Menard, PLC • Geoffrey Vitt,Esq. • David Rath, Esq. • Henry Vogt, Esq. • Jon Readnour, Esq. • Kevin Volz, Law Ofc. of • Chief Justice Paul Reiber and Sandi • von Stange Law PLC • Frederick Reich, Esq. • Lenora von Stange, Esq. • David G. Reid, Esq. • F. J. von Turkovich, P.C., Law Ofc of • Hon. Christina Reiss • Hon. Nancy Waples • Rice & Riley, PLLC • Wynona I Ward, Esq. • Lila M. Richardson, Esq. and • Caryn Waxman, Esq. Allen Gilbert • Welford & Sawyer, P.C. • Barbara Rodgers, Esq. • Mark Werle, Esq. • Alan Rome, Esq. • Whalen, Hand & Gilmour, PLC • Ronan Law Group, PLLC • Elise Whittemore • Jennifer Rowe, Esq. • James H. Wick, Esq. • Laurie A. Rowell, Esq. • Marc E. Wiener Law Offices, PLLC • Phyllis Rubenstein, Esq. • John H. Williams, II, Law Ofc. of • Jillian Rudge, Esq. • Wilschek Iarrapino Law Office, PLLC • Christopher Ruml • Sarah E. Wilson, Esq. • Patricia Sabalis • J. Zaw Win, Esq. • Salmon & Nostrand Law Offices • Winburn Law Office • Samuelson Law Offices • Anna Windemuth • Shelley Sayward, Esq. • Peter Wolfson • Hon. D. Justine Scanlon • Matthew Woodbury • Todd Schlossberg, Esq. • BetsyAnn Wrask, Esq. • Hon. Kirstin Schoonover and • Kristin Wright Hon. Brian Valentine • Tom Wright, Esq. • William Schubart • Peter F. Young, Esq. • S. Mark Sciarrotta, Esq. • Sophie Zdatny, Esq. • Sonja B. Selami, Law Ofc of, P.C. • Lila Shapero, Esq. • Thomas Sherrer, Esq. • Shillen Mackall & Seldon Law Office, P.C. • Margaret Shugart, Esq. • Y. Dave Silberman, Esq. and Eilat Glikman

28 THE VERMONT BAR JOURNAL • SPRING 2021 www.vtbar.org Access to Justice Campaign 20/21 TRIBUTE GIFTS In Memory of Professor Gil Kujovich Zachary Manganello, Esq. In Memory of Pat Barr and Rolf Sternberg Peter M. Lawrence, Esq. Dedicated to Josie Leavitt Elise Whittemore Dedicated to BIPOC Rita Gilbride In Memory of Laurie LeClair, Esq. Judith L. Dillon, Esq. Dedicated to Rachella (Ruthie) Bolton McClintock Law Office, PC In Memory of Hon. Theodore S. Jason P. Morrissey, Esq. Mandeville Jr. Bradley D. Myerson, Law Office In Memory of Harvey D. Carter, Jr. Hon. D. Justine Scanlon In Memory of Larry Mandell Alan Rome, Esq. In Memory of S. Stacy Chapman, Esq. John McCamley, Esq. Dedicated to Alexis Michelle Martin William (Trey) Martin, Esq. In Memory of Richard I. Damalouji Cynthia L. Broadfoot, Esq. Hon. Francis B. McCaffrey Bradley D. Myerson, Law Offices Dedicated to Elizabeth Jon Kopecky, Esq. Dedicated to Michael Mello Micaela Tucker, Esq. In Memory of Hon. Annette S. Elstein Patricia A. Killigrew, Esq. Dedicated to Renee Mobbs, Esq. Carey Kaplan Dedicated to Tom French, Esq. Raymond Massucco, Esq. In Memory of John S. Murtha, Esq. Hon. J. Garvan Murtha and Nicole Gay & Lesbian Fund of Vermont, Inc. Directed by Eileen Blackwood & Lynn In Memory of Anthony Otis, Esq. Goyette Robert Butterfield, Esq. Edward A. Miller, Esq. In Memory of Bob Gensburg F. L. Kochman, Inc. In Honor of PFL, Esq. Anonymous In Memory of Hon. Ruth Bader Ginsburg David Englander, Esq. Dedicated to all Poverty Law Fellows and Richard Hecht, Esq. their works Phyllis Rubenstein, Esq. Robert Appel, Esq. M. Robin Barone, Esq. In Memory of Hon. Peter Hall Zachary Manganello, Esq. In Memory of Phil Saxer Hon. Beth Robinson and Kym Boyman Matthew Carter, Esq. Shelley Sayward, Esq. Thomas Valente, Esq. In Memory of Scott Skinner, Esq. Lenora von Stange, Esq. Kelly Massicotte, Esq.

Dedicated to Hedy Harris Vermont Community Foundation Jean Kiewel, Esq. Supporters: William L and Debra Lopez Gottesman; David P. and Laura J. Stiller In Memory of Joe Hasazi Todd Schlossberg, Esq. In Honor of VBA Chief Justice Paul Reiber and Sandi In Memory of Thomas Jacobs Jason P. Morrissey, Esq. In Memory of Joan Loring Wing, Esq. Hon Cortland Corsones and Teri Corsones, Dedicated to Hon. Denise R. Johnson Esq. Wilschek Iarrapino Law Office, PLLC

In Memory of Judith Joseph Hon. Ben Joseph Dedicated to Elizabeth Kruska, Esq., VBA Pres. 20/21 Wesley Lawrence, Esq. www.vtbar.org THE VERMONT BAR JOURNAL • SPRING 2021 2 9 by Ellie Gebarowski-Shafer, D.Phil. A View of Pro Bono Work in Vermont

Many of Vermont’s residents depend and guidance: “When parents are litigat- she files something on Odyssey. “They get on the legal community to provide free or ing custody of their children, they have a lot an email, read it, and call me with a sum- low cost services. This year’s VBA Pro Bono at stake, and people often come into the mary of the entry order; my clients read the Award winners, Cristina Mansfield, Esq., legal process with no understanding and order before my staff!” For the past year, Kathleen Rivers Esq., and Janet Van Der- afraid.” Sometimes ready to sign anything Cristina has led a study of Vermont’s Rules poel-Andrea, Esq. work tirelessly to provide out of fear, clients benefit significantly from of Civil Procedure via Zoom among regis- such legal help whenever possible. These the guidance that Cristina provides. “The trants in Vermont’s LOS Program where three dedicated Vermont attorneys have public needs help, especially where there is graduates of a bachelor degree program been recognized for giving low-income cli- lack of knowledge in the court system and can read for the Vermont administration of ents legal representation at a time when an imbalance of power,” and Cristina strives the bar exam without attending an accred- they need it most, prioritizing the rights to educate clients so they can be informed ited law school. With the group tuning in and concerns of their clients regardless of and self-directed in working on their cases. via web cameras, Cristina leads in careful their ability to pay. I had a chance to speak “It’s critical in my meetings with clients— examination of the Rules and inspires at- with each of them recently about their ad- they are going to walk out with the statute, tendees to go deeper in their legal learning mirable legal work and personal interests. the list of factors in their case.” She teach- so that they in turn can help their own cli- es clients how to observe and record facts ents in the future. Cristina Mansfield, Esq. and how to determine what is in the best In the years ahead, Cristina and her legal interests of children in the case. “The re- team aim to become more efficient in order At her general law practice in Manchester ality is that the client knows the case bet- to serve clients better and do as much pro Center, Cristina handles a variety of cases ter than me.” She has found that most cli- bono work as possible. In her spare time, with a focus on family and juvenile law. She ents are very appreciative of her pro bono she volunteers in the community, spends came to a law career after decades working and low bono work, and they are “willing time with family and her partner, Ed, and in international development, carrying over to do anything they can to help. Once I had trains for competing next year in Scotland’s interests in advocacy and community edu- a pro bono client come in and organize all Kindrochit Quadrathlon. cation that she explored while completing their paperwork before I would look at it. a Master’s Degree in Public Administration It took them five hours sitting in my office. Kathleen M. Rivers, Esq. from the Kennedy School of Government They left with a new appreciation for how and a Master’s Degree in Agribusiness from hard attorneys work.” Vermont native Kathleen Rivers is glad to Kansas State. Cristina felt at home travel- Taking pro bono cases in a wide variety of be back to her home town of Brattleboro, ing the world and connecting with people, legal areas, mentored by senior attorneys, serving the needs of clients in her commu- as she grew up in a multicultural, U.S. Air has also helped Cristina learn and broad- nity. Kathleen returned to Brattleboro af- Force family, moving frequently and learn- ened her general practice within and be- ter living in other parts of the northeast for ing new languages easily. A career in law yond family law. With senior attorney as- the better part of a decade. She majored suddenly came on Cristina’s horizon when a sistance, she has taken on asylum and im- in Government and International Relations student of hers gave a talk at the Vermont migration cases as well as a Social Security while at Clark University. Kathleen went Law School. Cristina attended and by the benefits case. “I had some knowledge from on to graduate from Albany Law School. A time she walked out of the talk, she knew my background but could not have helped year after graduating, she returned to Ver- she had to attend VLS. Graduating in her clients in these cases without a mentor.” mont and has been with Furlan & Associ- 50s, she stayed in Vermont to practice law, Overall she reports that pro bono work has ates, PLLC, since 2018. Kathleen primarily participating in the VBA’s Incubator Pro- been “a tremendous experience…a chance practices criminal and juvenile law in Wind- gram where she received funding to set up to learn new substantive areas of the law, ham County. a website and liability insurance as well as and it helps with networking.” In a large portion of her time, Kath- receiving mentoring and internship oppor- Technology is playing an increasingly im- leen handles Child in Need of Supervision tunities. Cristina’s practice mainly serves portant role in how Cristina connects with (CHINS) cases. With the understanding struggling families in Bennington County’s people, from clients to registrants in Ver- that “there are no bad kids and no bad par- Family Division, and this is where many of mont’s Law Office Study (LOS) Program. ents, just families who need more help,” her pro bono cases have arisen. Cristina uses email and text messages to Kathleen gives of her time to meet clients Cristina explains that clients in family keep clients informed on the progress of where they are and ensure they have a voice law matters greatly need representation their cases, and she serves them whenever when facing overwhelming obstacles. In

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30 THE VERMONT BAR JOURNAL • SPRING 2021 www.vtbar.org A View of Pro Bono Work in Vermont addition, she represents clients in probate court and helps parents with divorces and custody matters after there has been DCF involvement. Kathleen doesn’t necessarily seek pro bono work, but plenty of it comes her way: “How can I not help? There isn’t much choice about it.” Kathleen has also found an advantage in doing pro bono and low bono work in that mentorship is avail- able in new areas of practice. Kathleen is particularly appreciative of her supervising attorney, Mark Furlan, Esq., and public de- fender Joanne Baltz, Esq. For troubled clients involved in complex life situations, Kathleen offers compassion- ate guidance through a court system that is notoriously difficult to navigate. “Law is re- ally hard. For a long time it was designed court system as well as educational, den- plicated by a widespread illiteracy problem. to be hard.” Especially for today’s low-in- tal, psychological, medical, veterinary and Practicing law with people lacking resourc- come clients facing challenges of addiction, childcare services. Her goal is to put clients es has been hard. Government buildings mental health issues, and poverty, Kath- who cannot afford private counsel on an have had to close. Some clients used to de- leen’s dedication and skilled legal services equal footing with those who can. In addi- pend on public library email access, but not come as a welcome relief to the confusion tion to the demands of people dealing with now. The heart of lawyer-client communi- of the court process. She often finds her- a complicated legal environment which cation – in person meetings – have rarely self going above and beyond meeting with may be new to them, lawyers can often re- happened during the winter of 2020-2021. clients, filing motions, and attending hear- duce the immense stress that accompanies This has been especially hard on clients ings, even at times attending therapy ses- court involvement. While some people al- with cognitive impairment, educational dis- sions when a client requests that she come ready qualify for free or partially State-fund- abilities, no homes and no transportation. along. Any help that clients need navigat- ed representation, others do not because Now that it is spring, Janet has resumed ing the legal system, or the housing system, their cases are of a different type. With- meeting with clients outside. or when facing a variety of other challeng- out pro bono lawyers to assist them, they As the pandemic continues, Janet en- es, Kathleen is there to assist and make a struggle needlessly to understand the na- courages Vermont attorneys to develop difference for parents and children in the ture of their cases and prepare and present ways to “support more people having eas- communities she serves. themselves in the courtroom effectively, es- ier access to the court system more of the Kathleen finds ways to communicate ef- pecially if they are illiterate. time. When people are gathered in food fectively with clients in the changing tech- Janet graduated from the University of pantries, senior centers, free clinics, and nological landscape and in light of pan- Rochester (Class of ‘74) with a Bachelor’s farmer’s markets anyway, that’s an oppor- demic realities, including a Google Voice degree in both Sociology and Political Sci- tunity for lawyers to offer one or two pieces account which allows her to text clients. ence. After college, she worked at various of information about the court system that A new brick and mortar office space in jobs. Her favorite was working for a large people don’t know. Short community pre- Brattleboro has helped Kathleen facilitate real estate company in the Capital Region sentations could help all age groups across meetings during the pandemic, as she pre- of New York as a broker, sales trainer and all divisions in the court system.” Janet has viously met clients at the courthouse or in technical writer. Realtors ready for a “next heard many myths about Vermont law over a client’s home. Since “it’s not always pos- step” usually have choices such as the the years. “The first step in representation sible to meet clients over the phone, and law, banking, accounting, surveying, title is to dismantle those. A presentation in a certain conversation topics, such as relin- searching, property management, etc. Ja- safe, community setting is an excellent site quishing Parental Rights and Responsibili- net received her degree from Vermont Law for doing for that type of work. The ‘limited ties, can’t be discussed remotely,” finding School (Class of ‘91) along with a certificate appearance’ is a wonderful tool, too.” ways to meet clients in person safely con- from the General Practice Program. Asked about the post-pandemic legal tinues to be very important in Kathleen’s le- Janet encourages lawyers of all levels of scene in Vermont, Janet believes that elec- gal work. Finally, she strives to learn new experience to do pro bono work. In their tronic appearances will continue in some ways to communicate effectively and ethi- early years in practice, clients devastated circumstances. She hopes that grant mon- cally with clients, many of whom struggle by the weight of poverty in addition to legal ey and private donations can provide pro with mental illness or the effects of abuse problems offer newer lawyers the chance bono clients with laptops and printers, even or addiction. to learn a tremendous amount about the if they are loaners that must be reset be- In her spare time, Kathleen runs and mechanics of legal practice. Senior law- tween clients. spends time at the local dog park with her yers already have a lifetime of skills to offer. Janet reads books of all kinds, declining golden retriever, a rescue dog named Bran- “They can start working knowledgeably modern alternatives to paper. “The plea- dy. right away with people struggling with their sure of holding a book is the whole experi- case in the context of a country wracked ence – content, no device between the eye Janet Van Derpoel-Andrea, Esq. by COVID-19, massive upheaval, shortages and the written word, the feel of the paper, of resources, violence of all kinds, overbur- the end papers – and some books are sim- Janet started her practice in Bennington dened bureaucracies, etc.” ply very beautiful.” She also rides horses at in 1995 with an emphasis on Family Division While technology use has soared during a local dressage/eventing barn as often as cases of all types. She believes that many the pandemic, Janet works daily with peo- possible. people in southern Vermont have a desper- ple who cannot afford their phones and do ate need for legal services in all parts of the not have laptops or printers. This is com- www.vtbar.org THE VERMONT BAR JOURNAL • SPRING 2021 3 1 by David F. Kelley, Esq. College Behind Bars: Putting the Second Chance Act to Work in Vermont

How the most democratic society in his- tween UVM and the Chittenden Regional Those BPI graduates have gone on to be- tory came to have the highest incarcera- Correctional Center by doing her own pri- come lawyers, ministers, professors and tion rate in the world is a question that will vate fund raising. With the pandemic and business owners. And that data begs the trouble us for years to come. But today the no internet access, the program stopped in question—if indeed the students in these authors of the 1994 Crime Bill are among the spring of 2020. Professor Fox describes programs are representative of the broad- those wringing their hands.1 The 1994 her students at the Chittenden Regional er prison population, how much talent, en- Crime Bill (the Violent Crime Control and Correctional Center as the hardest working ergy and contribution is thrown away and Law Enforcement Act of 1994) allocated students she ever had. Admission required gone to waste for want of opportunity and $12.5 billion to states to build new prisons a GED or high school diploma and an inter- availability of more programs like BPI? if they passed ‘truth-in-sentencing’ (TIS) view process. Professor Fox remarks about The case for expanding these programs laws. Those laws required inmates to serve how students in the program read ahead, meets the “beyond a reasonable doubt” at least 85 percent of their sentences. Be- did multiple drafts of papers, and never standard. tween 1995 and 1999, nine states adopt- took the program for granted. She says the ed TIS laws, and another 21 states changed future depends on Pell Grants and internet Incarceration by the Numbers their TIS laws to comply with the crime bill’s access. requirements and then applied for funding. Funded with private donations, primar- There are approximately 328 million By 1999, a total of 42 states had adopted ily from the J. Warren and Lois McClure people in the United States and 2.3 mil- TIS laws.2 In addition to the billions spent Foundation, Community College of Ver- lion of those people are now in prison.10 building new prisons, one of the most ill- mont (CCV) has begun a similar effort at We have another 4.5 million people on pro- conceived aspects of the 1994 Crime Bill Newport’s Northern State Correctional Fa- bation or parole.11 To put those numbers was the termination of Pell Grant eligibility cility (NSCF). In the fall of 2018, CCV of- in perspective, for every 100,000 people, for those in prison. fered three college classes to inmates, as overall, in the United States, there are now As a result of the termination of Pell well as its Introduction to College and Ca- 698 people in prison. In the United King- Grant eligibility, by 2005 the number of reers class to Community High School of dom there are 139. In France there are 104. “college in prison” programs had shrunk to Vermont students housed at NSCF. Since In Denmark there are 59.12 In Russia, there less than a few dozen, with four of them inception, they have offered 12 classes are 386 people in prison per 100,000 pop- being in New York State. The programs in at NSCF, resulting in 100 students taking ulation.13 Today’s imprisonment rate in the New York were largely the work of one stu- over 150 course placements. According to United States is nearly seven times what it dent, Max Kenner. Kenner graduated from Heather Weinstein, Dean of Strategic Initia- was in 1972.14 Bard College in 2001, and he and a few tives and Student Affairs at CCV: “A team Vermont’s average daily sentenced pop- others gave proof to Margaret Mead’s aph- of CCV and DOC staff are working closely ulation is about two thirds of what it was orism about how “a small group of peo- to plan the expansion of CCV classes to ad- ten years ago.15 As of March 19, 2021 Ver- ple can change the world”.3 Today there ditional Vermont facilities.” She says plan- mont’s sentenced population was 1,239.16 are approximately 300 programs across ning is still in its early stages. As of Janu- The Covid pandemic likely played a sub- the country offering post-secondary edu- ary 2020, there were 32 active participants. stantial role in that reduced number. On cation in prisons.4 Most of these programs This small, embryonic initiative shows signs the other hand, in 2010 Vermont budgeted were born after the passage of the Second of being as important as other similar proj- $137 million for our Department of Correc- Chance Act in 2015. ects around the country.6 tions.17 Despite almost a one third decrease To his credit, Vermont’s senior Senator In the age of mass incarceration, it is in the key incarceration rate, the 2021 bud- was one of the leaders in seeking course an important ray of hope. The recidivism get is $167 million, a 22% increase over correction. Along with Senator Rob Port- rate for inmates receiving an associates or 2010.18 The annual daily average detained, man of Ohio, Senator Patrick Leahy became bachelor’s degree through the Bard Pris- but not sentenced, population in Vermont a co-sponsor of the Second Chance Act, on Initiative in upstate New York is a low prisons has actually increased over the last restoring Pell Grant eligibility to prisoners. 4%.7 A review of other “college in prison” ten years—from 357 to 443, however on The Second Chance Act was expanded fur- programs done by the Rand Corporation March 19, 2021 that population was down ther in 2020. Today incarcerated students showed that those programs produced to 282.19 Again, the pandemic may be play- can use Federal Pell Grants at 130 colleges similarly dramatic reductions in recidivism ing a role in shaping these numbers. in 42 states and the District of Columbia. rates.8 Nevertheless, Vermont’s recidivism rate Technically, Vermont is one of those states. The most often repeated argument is currently increasing. According to the Bennington College and Community Col- against college in prison programs is that most recent data, set out in DOC’s 2021 lege of Vermont have both been selected they skim off the “top” of the prison sys- budget presentation, the percentage of as part of the Second Chance Act “Experi- tem’s inmates. That turns out to be false. prisoners who were sentenced to at least mental Sites Initiative.”5 But to date, in Ver- Comparing official state data with student one year and who were returned to pris- mont, it has been a steep hill to climb. databases from the Bard initiative (BPI), the on within three years has risen from 43% One of the heroes in this effort has been general characteristics of all 700 students in 2005 to 53% in 2015.20 Though bleak, Kathy Fox, a sociology professor at the Uni- admitted to the BPI program is very much Vermont’s recidivism rates are somewhat versity of Vermont. representative of the characteristics of better than much of the rest of the coun- Professor Fox developed a program be- the general New York prison population.9 try. According to a study of 30 state correc-

32 THE VERMONT BAR JOURNAL • SPRING 2021 www.vtbar.org College Behind Bars tional facilities done by the U.S. Bureau of Justice Statistics, 30% of inmates released from those facilities were rearrested with- in six months after being released. Within three years 68% were rearrested, and with- in six years 79% were rearrested.21

Shifting Spending Priorities

These numbers become especially dis- concerting when we juxtapose prison costs with spending for public education. In 1977 the United States was allocating 26 per- cent of general expenditures to elementa- ry and secondary education. By 2017 that allocation was reduced to 21 percent.22 In born in the late 1970s, about one-third are lier. Two-thirds of these children’s parents real, inflation adjusted dollars state fund- estimated to have served time in prison were incarcerated for non-violent offens- ing for public two and four-year colleges by their mid-30s. Among black male high es.37 One in 9 African American children in 2018 was more than $6.6 billion below school dropouts, about two-thirds have a (11.4 percent), 1 in 28 Hispanic children what it was in 2008.23 Between 1980 and prison record by that same age.30 And, of (3.5 percent) and 1 in 57 white children (1.8 2011 California spent 13% less on its col- course, poverty always plays a role. Incar- percent) have an incarcerated parent. More lege and university system, but spent 436% cerated people have a median annual in- than half of imprisoned parents (52 percent more on its corrections system.24 Califor- come that is 41% less than non-incarcer- of mothers and 54 percent of fathers) were nia now spends more on correctional insti- ated people of similar ages.31 In Vermont the primary earners for their children.38 tutions than it does on its university, state 75% of those that are incarcerated read at colleges and community colleges systems below the 9th grade level.32 On the other The Morality and the combined. hand, according to the U.S. Census, 93% Politics of College Behind Bars Vermont’s commitment to higher educa- of Vermonters have at least a high school tion has been equally alarming in many re- degree.33 Our prison population is heavily While the economic case for providing spects. Facing a crisis in our State college weighted in a single demographic. greater access to higher education in pris- system, with the serious possibility of clos- on is compelling, David Karpowitz, who has ing some campuses, the Vermont Legisla- The Economics of College Behind Bars spent over a decade teaching in the Bard ture has been trying to remedy the prob- Prison Initiative (BPI) makes a compelling lem of underfunding. But historically we do A simple cost benefit analysis is so com- moral and political case for these programs not compare well to other states. Slightly pelling that, if this were the private sector, as well. In his book College in Prison: Read- more than 2% of our State’s tax revenues investors would be begging to buy stock. ing in the Age of Mass Incarceration Kar- have been allocated to higher education. The obvious returns on providing college powitz writes: “Our best justifications for That is the second lowest in New England courses in prisons make the returns on an much criminal and civil law rest on the be- and one half of the national average.25 Our early investment in Google or Amazon look lief that free people can and must be held public tuition charged to in state students paltry. There are more than 650,000 men morally accountable for their actions. If this is the highest in the country, and twice the and women released from U.S. Prisons ev- is so then our systems of accountability... national average.26 It is hard to find data ery year. Many of those former inmates should strengthen both agency and digni- that correlates that commitment to incar- wind up unemployed. One estimate puts ty.” ceration rates. However there certainly ap- this cost alone at as much as $65 billion a Karpowitz claims that conservatives gen- pears to be a link between substandard year.34 But the cost to our criminal justice erally turn to notions of personal respon- schools and incarceration rates. system of current recidivism rates is almost sibility for solutions, while liberals look to A close look at the poorest communities immeasurable. According to the Vera Insti- institutions and social responsibility for so- in cities like Philadelphia and Los Angeles tute, the annual cost of housing an inmate lutions. He says college in prison provides with the most substandard K-12 schools re- in Vermont in 2015 was $57,615.35 To- a systemic opportunity for individual em- veals that those are the same communities day that cost is closer to $63,000 per in- powerment, bridging both theories. He ar- with the highest incarceration rates.27 While mate per year—more than enough to cov- gues that: “In no sense can college in pris- we don’t have similar data for Vermont, it is er room, board, tuition and fees for an out on resolve this tension, but it does live on clear that our communities with the most of state student at UVM. When the cost of the fault line of these contradictions, and disadvantaged economies also confront an administration, probation and parole are is thus the sort of action that helps make education funding formula that leaves their all taken into account, the savings for every our public institutions, like prisons, ethical- students even more disadvantaged.28 More prisoner who doesn’t return to jail is closer ly worthy of the republic they sustain.”39 research needs to be done on how this cor- to $100,000 per inmate. A recent study by Karpowitz quotes Winston Churchill, relates to incarceration rates in Vermont, the Rand Corporation indicated that with whose eloquent logic frequently bridged but every indication from other places is only a 13% reduction in recidivism rates, the gap between liberals and conserva- that there is a direct relationship. one dollar invested in prison education tives: These educational disparities are like programs saves between four and five dol- The mood and temper of the public in a fire that feeds itself. Incarceration rates lars in three-year reincarceration costs.36 regard to the treatment of crime and crim- have barely increased among those who The economics of mass incarceration inals is one of the most unfailing tests of have attended college; nearly all the overlap with issues of humanity. In 2010 the civilization of any country. A calm and growth in incarceration is concentrated there were 2.7 million children with a par- dispassionate recognition of the rights of among those with no college education. 29 ent behind bars—1 in every 28 children. the accused against the state, and even of Among white male high school dropouts That was up from 1 in 125 just 25 years ear- convicted criminals against the state...tire- www.vtbar.org THE VERMONT BAR JOURNAL • SPRING 2021 33 less efforts toward the discovery of curative tial building blocks of a successful program ternet access is essential to a meaning- and regenerating processes and an unfal- which Vermont can benefit from.43 ful State-wide program. She points to the tering faith that there is a treasure, if only The time and opportunity to provide ex- Women’s Re-entry Center in Maine where you can find it, in the heart of every person- panded post-secondary education in Ver- women take classes online from the Univer- --these are the symbols which in the treat- mont would seem to be now. Incarcerated sity of Maine and says there are effective ment of crime and criminals mark and mea- students now have access to Pell Grants ways to put guard rails on internet access. College Behind Bars sure the stored up strength of a nation and at CCV via the Second Chance Act and Professor Fox would also urge Vermont to are the sign and proof of the living virtue through FAFSA. The Department of Cor- consider use of a State College campus for in it.40 rections can also access approximately a an expanded Second Chance Experimental There is an irrefutable cost benefit analy- half million dollars to support a meaningful Site Initiative. sis favoring our financial investment in ex- post-secondary education program. First it Few would argue with the fact that edu- panded college in prison programs. But can access funds through the Carl Perkins cation is one of the main roads to a mean- more important than the economics of this Career and Technical Training Act.44 Sec- ingful and productive life in a free society. issue is whether or not we have the collec- ond, it can access funds through the Work- For those who were denied access to that tive strength and character to build a crimi- force Innovation and Opportunity Act to road, or who got lost along the way, it is nal justice system that offers prison inmates support post-secondary programs in Pris- not only fair that we give them a chance to a genuine opportunity to finally become on.45 The Department of Corrections bud- find that road. It is plain, simple common full members of a free society. gets $3,503,773 to pay 35 teachers. Sala- sense. The State of Vermont can point to ries are listed as $2,284,128 plus “fringe countless initiatives in environmental pro- New Opportunities for benefits” of $1,044,910—substantially tection, education and human rights where College Behind Bars more than the average high school teacher we have been leaders. College in prison in Vermont is making today.46 Nonetheless, programs is an area where we should start The Second Chance Act is now supple- the Department’s 2021 budget request trying to catch up. mented by the FAFSA Simplification Act speaks only to secondary education allo- ______(Free Application for Federal Student Aid). cating only $103,949 to supplies, equip- David Kelley grew up in Vermont and FAFSA is “sentence-blind”—meaning all ment, space, IT and operating expenses.47 went to UVM and Georgetown Law School. incarcerated people, regardless of sen- He was General Counsel to the Vermont tence length or conviction, can qualify— The Future of College Ski Areas Association for 25 years and co- and includes people with certain drug-re- Behind Bars in Vermont founder of PH International. He currently lated convictions who could not previous- works with the Vermont College in Prison ly apply for Pell Grants. It covers people in While DOC and CCV are “actively and Project and the Vermont Wildlife Coalition. jails, prisons, and juvenile and civil commit- collaboratively planning to expand the ac- ______ment settings. When the Act takes effect— cess to college behind bars,” the nuts and 1 https://www.delawareonline.com/sto- no later than July 1, 2023—up to 463,000 bolts of a meaningful program have yet to ry/news/2019/01/21/biden-says-he-regrets- 1990-s-crime-bill-calls-big-mistake-mlk-day- people who are currently incarcerated will be put in place. There still isn’t any method event/2639190002/ be eligible for this financial aid.41 to identify who might benefit from the pro- 2 https://www.brennancenter.org/our-work/ Undoubtedly there will be various enti- gram, much less who might be interested analysis-opinion/complex-history-controversial- ties seeking to profit from this opportuni- in the program. When asked what needs 1994-crime-bill 3 https://www.nytimes.com/2005/02/20/maga- ty, and it will be incumbent upon Depart- to be put in place before Vermont prison- zine/uncaptive-minds.html ments of Correction to ensure the quality ers can have greater access to college pro- 4 https://assets-global.website-files.com/5e3 of programs being offered. The Prison Uni- grams through CCV, a Department of Cor- dd3cf0b4b54470c8b1be1/5fc42533d043ab47 versity Project and the Alliance for Higher rections officials stated: “...until we com- fb826391_TheLandscapeofHigherEducationin- Education in Prison among others have de- plete implementation of the wireless ac- Prison-2018-2019.pdf 5 https://experimentalsites.ed.gov/exp/pdf/ES- veloped a template to help guide Depart- cess network, it is difficult to identify what IParticipants.pdf ments of Corrections and educational insti- else would really enhance the access or ad- 6 https://vtdigger.org/2019/02/01/community- tutions in assuring high levels of quality in dress systemic barriers.” college-vermont-awarded-funding-inmate-edu- the programs that are being used.42 Like- Professor Fox at UVM agrees. While she cation-program/ 7 https://bpi.bard.edu/topics/college-behind- wise, the Justice Center of the Council of says “something magic happens with in bars/#:~:text=One%20of%20the%20most%20 State Governments has laid out the essen- person instruction” she also says that in-

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34 THE VERMONT BAR JOURNAL • SPRING 2021 www.vtbar.org College Behind Bars incredible,rates%20reported%20across%20 tive/state-and-local-backgrounders/elementary- 36 https://www.rand.org/pubs/perspectives/ the%20country. and-secondary-education-expenditures PE342.html 8 https://www.rand.org/pubs/perspectives/ 23 https://www.cbpp.org/research/state-bud- 37 https://www.americansforthearts.org/by-pro- PE342.html get-and-tax/state-higher-education-funding- gram/reports-and-data/legislation-policy/naap- 9 Karpowitz, supra, p. 31. cuts-have-pushed-costs-to-students pd/collateral-costs-incarcerations-effect-on-eco- 10 https://www.prisonpolicy.org/reports/ 24 http://www.allgov.com/usa/ca/news/top-sto- nomic-mobility pie2020.html#:~:text=The%20American%20 ries/prisons-capturing-more-state-dollars-than- 38 https://www.americansforthearts.org/by-pro- criminal%20justice%20system,civil%20commit- colleges-120910?news=845259 gram/reports-and-data/legislation-policy/naap- ment%20centers%2C%20state%20psychiatric 25 https://ljfo.vermont.gov/assets/Uploads/ pd/collateral-costs-incarcerations-effect-on-eco- 11 https://www.pewtrusts.org/-/media/as- c47db06469/VSCS-FY21-Budget-Testimony- nomic-mobility sets/2018/09/probation_and_parole_systems_ 02-10-20-FINAL.pdf 39 Karpowitz, College in Prison, Rutgers Univer- marked_by_high_stakes_missed_opportunities_ 26 https://ljfo.vermont.gov/assets/Uploads/ sity Press, 2017, p. 162. pew.pdf c47db06469/VSCS-FY21-Budget-Testimony- 40 Ibid, 163. 12 https://www.prisonpolicy.org/global/2018. 02-10-20-FINAL.pdf 41 https://www.ed.gov/news/press-releases/sec- html 27 https://prospect.org/special-report/educa- retary-devos-expands-second-chance-pell-ex- 13 https://www.statista.com/statistics/1022927/ tion-vs.-incarceration/ periment-more-doubling-opportunities-incar- russia-annual-incarceration-rate/ 28 https://vtdigger.org/2021/03/15/29- cerated-students-gain-job-skills-and-earn-post- 14 https://www.nap.edu/read/18613/chap- school-board-members-fairness-in-school- secondary-credentials ter/4#34 funding-cant-wait/?u=*%7CUNIQID%7C* 42 https://www.mttamcollege.org/wp-content/ 15 https://ljfo.vermont.gov/assets/ 29 https://www.nap.edu/read/18613/chap- uploads/2020/08/Equity_Excellence_in_Prac- Uploads/0b6923e633/DOC-FY21-Budget-Pre- ter/4#66 tice.pdf sentation-v3.pdf 30 https://www.nap.edu/read/18613/chap- 43 https://csgjusticecenter.org/wp-content/ 16 https://doc.vermont.gov/sites/correct/ ter/2#5 uploads/2020/02/Laying-the-Groundwork_ files/documents/Daily-Population/Pop_ 31 https://www.prisonpolicy.org/reports/ Feb2020.pdf Count_03-19-2021.pdf pie2020.html 44 https://s3.amazonaws.com/PCRN/uploads/ 17 https://doc.vermont.gov/sites/correct/files/ 32 https://legislature.vermont.gov/Docu- How_States_Made_Available_Perkins_Funds_ documents/reports/doc-fy19-budget-presenta- ments/2020/WorkGroups/Senate%20Appro- for_Correctional_Ed.pdf tion.pdf p.28 priations/FY%202021%20BUDGET/03%20%20 45 https://www.dol.gov/agencies/eta/wioa/ 18 https://ljfo.vermont.gov/assets/ Human%20Services/W~Department%20of%20 about#:~:text=The%20Workforce%20Inno- Uploads/0b6923e633/DOC-FY21-Budget-Pre- Corrections~FY%202021%20Budget%20Re- vation%20and%20Opportunity,compete%20 sentation-v3.pdf quest%20-%20Presentation%20~3-10-2020.pdf in%20the%20global%20economy. 19 https://doc.vermont.gov/sites/correct/ 33 https://censusreporter.org/ 46 https://finance.vermont.gov/sites/finance/ files/documents/Daily-Population/Pop_ profiles/04000US50-vermont/ files/documents/Budget/Budget_Recomm/ Count_03-19-2021.pdf 34 Michelle Fine et al., Changing Minds, Sept. FY_2022/FY2022_Executive_Budget_Book.pdf 20 https://ljfo.vermont.gov/assets/ 2001, 29, https://www.prisonpolicy.org/scans/ 47 https://legislature.vermont.gov/Docu- Uploads/0b6923e633/DOC-FY21-Budget-Pre- changing_minds.pdf ments/2020/WorkGroups/Senate%20Appro- sentation-v3.pdf 35 https://www.vera.org/publications/price-of- priations/FY%202021%20BUDGET/03%20%20 21 https://www.bjs.gov/index. prisons-2015-state-spending-trends/price-of- Human%20Services/W~Department%20of%20 cfm?ty=pbdetail&iid=6266 prisons-2015-state-spending-trends/price-of- Corrections~FY%202021%20Budget%20Re- 22 https://www.urban.org/policy-centers/cross- prisons-2015-state-spending-trends-prison- quest%20-%20Presentation%20~3-10-2020.pdf center-initiatives/state-and-local-finance-initia- spending

SAVE THE DATE! We are back LIVE and IN-PERSON on October 8, 2021 for our VBA Annual Meeting at the Doubletree in S. Burlington.

We cannot wait to see you all at our Annual Meeting on Friday October 8, 2021.

Join us for a day of CLE’s, membership business meeting, live networking and food on October 8th. Watch our website for more information. See you there!

www.vtbar.org THE VERMONT BAR JOURNAL • SPRING 2021 35 by Mark C.S. Bassingthwaighte, Esq. Why Failing to Provide Mandatory Security Awareness Training is a Huge Misstep

I will admit that, at times and with topics can do is educate them. Unfortunately, such these programs are highly destructive. such as cyber security, I can come across as efforts are often perfunctory, short lived or overbearing to some and as a fearmonger to never even make it off the “to do” list. Keylogger - a program that records ev- others. Speaking honestly, however, I nev- Here’s the problem with not following ery keystroke made by a computer user er try to come across that way. Cybersecu- through on training. If it hasn’t already hap- and then sends that information to the rity is simply a topic I am passionate about. pened, at some point, someone, maybe attacker. Its purpose is to allow the at- Whenever I speak or write on this topic, my even you, will be tricked into doing some- tacker to obtain as much confidential in- purpose is to try and do all that I can to help thing that will allow malware to be installed formation as possible, to include pass- others avoid becoming yet another victim of on your firm’s network. It might be clicking words. a cybercrime. on a malicious link, opening an infected at- I share this because I really do get it. tachment, or logging on to a spoofed web- Remote Access Trojan (RAT) - a pro- Thinking about my own efforts to keep site, just for starters. Very sophisticated so- gram attackers use to take complete our home network secure and our person- cial engineering attacks have been and will control of a victim’s computer for the al information private, well, all I can say is it remain for the foreseeable future the pre- purpose of performing any number of seems like an effort in futility. There really ferred attack vector because they are so malicious activities, to include poten- are days where I just want to say the heck darn effective at getting people to lower tially activating a webcam without turn- with it and stop even trying. I don’t know their shields when it comes to the actions ing on the active camera light. RATs can if it’s a blessing or a curse; but when those they take while online. reside on systems for extended periods days hit, and for whatever reason, I get an- The interesting question for me is this. of time before being detected and can gry. You see, I take it personally. The fact What risks do we all face if our own online be extremely difficult to successfully re- that all sorts of bad actors out there want to actions come up short? Allow me to share move. They operate in a stealth mode steal my identity, my money, my passwords, a few, and I truly mean a few, examples of and are quite difficult for antivirus soft- and the list goes on really ticks me off. The common types of malware attackers are try- ware programs to identify. reality is I’m not good with that and this is ing to trick you into installing on your net- where my motivation to fight back in what- work and/or any device that touches your Banking Trojan - Disguised as a legit- ever way I can comes from. It’s what keeps network. imate application so that victim’s will me going. Hopefully keeping all this in mind willingly download and install it to their will allow you to hear my message. Malicious Bots – A bot is a software ap- computers or mobile devices, a bank- In recent years, I have come to realize plication that is typically used to per- ing trojan is actually a malicious pro- the true value of mandatory ongoing secu- form simple repetitive tasks much fast- gram that seeks to capture information rity awareness training in every business re- er than any human ever could. Mali- that will allow the attacker to gain ac- gardless of size, even solo practices. Truth cious bots give an attacker control of cess a victim’s banking and investment be told, my wife and I often talk about cy- your computer, often for the purpose accounts. ber security. I will share breach stories, ex- of incorporating your computer into a plain how specific types of malware work, botnet, which is a much larger network Perhaps now you have a sense of why I get and show her various real-world examples of computers infected with bots. Bot- angry and want to do all I can to fight back. of phishing emails and smishing texts. And nets are often used to launch massive More importantly, however, I hope you can while it’s one of the ways she is able to enter attacks on other computers networks begin to understand why I believe that fail- my work world, as a victim of a cybercrime or to send out vast amounts of spam ing to provide mandatory ongoing security herself, she’s also well aware of the true pur- email. Malicious bots can also be up- awareness training to everyone who works pose behind and value of these conversa- dated remotely, giving the attacker the at a firm, regardless of firm size, is a huge tions. So, you see, even in my personal life, I ability to change the bot’s functionality misstep. It’s because being hit with any of walk the talk because this is one of the ways at any time. the above malware examples will prove to I learn as well. be more than a minor inconvenience. For Now, to the topic of this post, the pur- Ransomware - a type of malware that some, such an attack may sound the death pose of which is to explain one of the many uses encryption to permanently block knell for the firm. With so much at stake, why reasons why I believe that a failure to pro- access to the victim’s data and/or en- risk it? If security awareness training isn’t cur- vide mandatory ongoing security awareness ables the hacker to steal and then rently in play, it’s time to make it a high pri- training to every lawyer and staff who works threaten to publish the victim’s data un- ority item; because the pros are out to hack at a firm is a huge misstep. I’m going to ask less a ransom is paid. your human assets and, like it or not, educa- you to trust me when I say that we humans tion is the only way to counter that. are the weak link when it comes to cyber se- Wiperware - a malicious program ______curity and it’s all about the art of social engi- whose sole purpose is to destroy all ALPS Risk Manager Mark Bassingth- neering. One of my favorite cyber security computer files by wiping (think digital waighte, Esq. has conducted over 1,000 law lines is “Amateurs hack systems, profession- erase) the hard drive of every comput- firm risk management assessment visits, pre- als hack humans” because it speaks to the er it infects. Wipers typically have three sented numerous continuing legal education truth. And since humans can’t be patched targets: files, the boot section of the op- seminars throughout the United States, and and upgraded the way computers can, all we erating system, and backups. In short, written extensively on risk management and

36 THE VERMONT BAR JOURNAL • SPRING 2021 www.vtbar.org Security Awareness technology. Check out Mark’s recent semi- of any kind, whether express or implied, in- fect your professional practice, business or nars to assist you with your solo practice by cluding, but not limited to, the implied war- personal affairs. Instead, ALPS highly recom- visiting our on-demand CLE library at alps. ranties of merchantability, fitness for a par- mends that you consult an attorney or oth- inreachce.com. Mark can be contacted at: ticular purpose, or non-infringement. er professional before making any decisions [email protected]. Further, by making this publication or regarding the subject matter of this publi- Disclaimer: ALPS presents this publication document available, ALPS is not rendering cation or document. ALPS Corporation and or document as general information only. legal or other professional advice or servic- its subsidiaries, affiliates and related entities While ALPS strives to provide accurate infor- es and this publication or document should shall not be responsible for any loss or dam- mation, ALPS expressly disclaims any guar- not be relied upon as a substitute for such age sustained by any person who uses or re- antee or assurance that this publication or legal or other professional advice or servic- lies upon the publication or document pre- document is complete or accurate. There- es. ALPS warns that this publication or docu- sented herein. fore, in providing this publication or docu- ment should not be used or relied upon as a ment, ALPS expressly disclaims any warranty basis for any decision or action that may af-

by Hon. George K. Belcher A Tool in your Trust-Drafting Toolbox: The Trust Company of Vermont

You may have seen a glossy photo of a mont (TCV) after VNB was purchased by the ecutive Officer and Chairman of the compa- stately building in this journal or heard a ra- Chittenden Bank. Mr. Davidson and the sev- ny’s board of directors for twenty-two years. dio advertisement about the Trust Company en other founders wanted to establish a sta- Recently, Jack Davidson has retired as Presi- of Vermont. What is it and how might this ble, local trust company to serve Vermont- dent to become a part-time trust officer with company serve you and your clients? ers without the risk of consolidation and with the company. Succeeding Mr. Davidson as For many years, local lawyers advised cli- consistent employee services. The company President is Christopher Cassidy, MBA. In ents to use local bankers to act as trustees was formed as an employee-owned entity, Chris’ words, “We have developed strong for testamentary and inter vivos trusts. Most with stock eventually owned by an employ- working relationships with many of the es- of the local banks had “trust departments” ee stock ownership plan (ESOP), serving to tate planning attorneys around the state or one or more bank officials who managed assure that the company would continue as over the years, and we always welcome new trust duties when the bank was named as a Vermont service company with emphasis relationships with attorneys and the clients the trustee. The system often worked well upon stable ownership, continuity of trust they are serving. We offer consultations because the smaller, local banks usually had and investment services, and low staff turn- without charge for attorneys and/or their cli- “local knowledge” about the creator of the over. When the company began, its initial ents to explore the services we offer to help trust, the beneficiaries, and the extended staff consisted of its eight founders. On day in determining whether Trust Company of family. If the trust was created to avoid a dif- one, there was approximately zero in assets Vermont might be a good fit for a particu- ficult family situation, the local bank/trustee under management. Today, the company lar family.” was likely familiar with the situation. The lo- has fully staffed offices in Brattleboro, Rut- In what way might you use the services of cal bank often had a personal or business re- land, Burlington, and Manchester, $2 billion TCV in your practice? Of course, the first lationship with the family and provided one- in assets under management, and 41 sea- question is whether your client needs ex- stop shopping for trust and other banking soned trust administrators, portfolio manag- pertise in administration of a trust or invest- services. ers, and support staff. The roster now in- ment management. Often when drafting a As we know, in the 1980’s and 1990’s the cludes former Probate Judge Susan Fowler trust, questions arise as to whether the pro- banking industry underwent many consoli- and an estate-planning attorney, Jennifer posed trustee (if a family member) has the dations. Often the local bank was bought or Rowe, who joined the company in 2020. The expertise, time, or objectivity to manage consolidated with a larger institution, with organization is overseen by Vermont’s De- a trust effectively. Likewise, there may be management located outside of the commu- partment of Financial Regulation, and TCV questions whether a family member would nity or outside of the State of Vermont. It was has its own internal auditor. have the experience and skill to invest the not unusual for beneficiaries to learn that the Over the years, the Trust Company has trust assets in a manner consistent with the trust administrator who managed their trust been active with Vermont Bar Association needs of the beneficiaries and the overall for years was no longer the acting trustee, projects. The company was represented in goals of the trust. The fiduciary obligations but rather the administrator was now an un- the joint effort of the Vermont Bar Associa- imposed on trustees are sometimes foreign familiar bank employee from another com- tion and the Vermont Bankers Associations and confusing to an inexperienced lay per- munity or another state. Sometimes, if the in drafting Vermont’s new trust code1 as well son.4 Some trust assets require special ex- beneficiary petitioned to change the trustee as provisions of the Uniform Principal and In- pertise in management and administration, to a more local person or institution, the ex- come Act2 and the ability to convert trusts such as tax-deferred accounts, real estate, isting trustee would oppose the petition and to “unitrusts”3. and unique partnership investments. Like- threaten to charge its costs to the trust for Although the company has expanded in wise, there may be the need for in-house co- defense of its trusteeship. scope and size, its commitment to local ser- ordination between a trust’s administration It was within that time frame that the Trust vice and Vermont-based focus remains the and its investments so that changes in in- Company of Vermont was born. In 1999, At- same as when it was first formed. This is in vestments can be coordinated with required torney Jack Davidson, who had been the large part to the wisdom and vision of the distributions or managed with respect to es- head trust officer of the Vermont Nation- founders of the company and Jack David- tate tax planning. Sometimes the trust con- al Bank, formed the Trust Company of Ver- son. Mr. Davidson was President, Chief Ex- templates special issues to be addressed in www.vtbar.org THE VERMONT BAR JOURNAL • SPRING 2021 3 7 the future, such as special-needs beneficia- tate plan, any peculiar tax problems or an- be the right choice for you and your client. ries or spendthrift concerns. ticipated estate tax filings, and the expenses More information about the company, the If you, as the drafter of the trust docu- of fiduciary fees. fee structure, and the staff can be found at ment, or the settlor have concerns about The fee structure for investment manage- TCVermont.com. the selection of a trustee, it might be worth- ment depends upon the size of the trust as- ______while to consider a professional trustee like sets. The annual fee is usually based upon George Belcher succeeded retired Ver- mont Supreme Court Justice Ernest Gib- Trust-Drafting Toolbox Trust-Drafting the Trust Company of Vermont. An infor- all assets under management, ranging from mational meeting with a local representa- 1.00% to .40%, depending upon the size of son as a non-employee director of the Trust tive of the company can answer any ques- the account relationship. Perhaps unique in Company of Vermont in 2014. He joined tions you or your client may have with no the business of corporate fiduciary work, the board after retiring as Probate Judge in obligation. The Trust Company of Vermont the Trust Company groups family accounts Washington County, where he served for 21 has relationships with many local attorneys, as one in determining its charges, thus pro- years. and you might seek references from lawyers viding an economy of scale in a relationship ______who have worked with the Trust Company of with multiple accounts. If the company is 1 Christopher Chapman, CTFA, was the TCV rep- Vermont in the past. Speaking to such a col- needed as a fiduciary for estate administra- resentative to the joint committee’s work on the Trust Code Advisory Committee when Title 14 A league is another way to find out how the re- tion, the fee ranges from 1% to 5%, once was drafted and passed in 2009, and its work on lationship works. again, depending upon the size of the pro- modernizing the Uniform Principal and Income When giving advice to a settlor about who bate estate and time required in the probate Act, which was enacted in 2013. 2 should serve as trustee, there are many fac- process. 14 VSA Ch. 118 3 14A VSA Ch. 9 tors to consider, including the scope of the Avoiding the pitfalls and meeting the 4 See 14A VSA Chapter 7 (Office of Trustee) and work to be done, the expertise required, the challenges in understanding the details and Chapter 8 (Duties and Powers of Trustee) particular problems anticipated in managing rules surrounding trust and estate adminis- the assets, the manner in which the trust in- tration can be daunting. Choosing a profes- terfaces with other components of the es- sional fiduciary with experience and skill may

BOOK REVIEWS

exaggerate his considerable personal and a daughter up for adoption had a tremen- professional accomplishments. To the con- dous impact on his work reforming Vermont trary, he tells his story in a straight-forward laws on the subject. and compelling manner, providing the read- Kim enrolled in Connecticut law school er a window into the thoughts and motiva- in 1961. After completing his first year at tions that drove him to do what he did over the top of his class, he transferred to Yale. his remarkable life. He graduated from Yale in 1964 and there- Before I go any further, I need to disclose after entered private practice. Cheney was that Kim and I are good friends. I rented involved in two conflicts of consequence in space from his law firm when I opened my Connecticut before coming to Vermont. In solo practice on February 2, 2000 and dur- one, Kim headed up a publicity campaign ing this time we frequently sought each oth- against a proposed taking of public park er’s counsel regarding our pending cases. land for highway purposes. In the other, We are both passionate about the Adiron- his firm brought a lawsuit it was later forced dack high peaks and the game of golf, so to withdraw that raised the question as to our friendship extends beyond the realm of whether people of all races had a right of “A Lawyer’s Life to Live” our shared profession. Risking criticism from access to Connecticut beaches. These two by KimCheney those who might rightly question my objec- experiences taught Kim several lessons, per- Reviewed by Geoffrey Fitzgerald, Esq. tivity, I will nonetheless wholeheartedly rec- haps the most important being that he liked ommend this book. fights that had public import and conse- Some memoirs present an honest account Kim came from a place of privilege in Con- quence. of the writer’s life, foibles and all….others necticut and he acknowledges this fact, and Kim was not happy in Connecticut so not so much. The “honesty” test, if I can call all the ramifications that go with it, right up when he was offered a job with the Vermont it that, is not simply a matter of assessing front. He took full advantage of his early Department of Education in 1967, he took it. the truth of the narrative “facts” because, in education at St. Paul’s and Yale and, after a School consolidation and funding were the most cases, the reader cannot possibly know four-year stint in the Navy, including some prevailing issues of the time, as they are still what “facts” were omitted. The “honesty” rather gripping stories of his life at sea, Kim today. Kim had a direct role in drafting leg- test, therefore, becomes something akin to decided his path forward required him to islation that was subsequently enacted reor- a gut feeling. Do you, the reader, feel like get a law degree. dering the duties and responsibilities of the you are being told the whole story? While Kim’s memoir is laid out chrono- commissioner, superintendents and school Kim Cheney’s memoir, “A Lawyer’s Life to logically, and for the most part focuses on districts. He drove all over his newly adopt- Live,” is as honest as the day is long. The his professional career as a lawyer, he deft- ed state with longtime Washington County book revolves around two themes every law- ly weaves in details from his personal fam- Senator Bill Doyle and got to know many of yer must deal with during their profession- ily life that informed his life as a lawyer. By the movers and shakers in the field of edu- al career: conflict and truth. The conflicts way of example only, his mother’s battle with cation during his time with the Department. Cheney confronts during his life provide the alcoholism was pivotal in defining Kim’s ap- But Kim was not an educator at heart and momentum for the story but, in the telling, proach to the “war on drugs.” Moreover, he quickly set his sights on the newly creat- Cheney does not gloss over his missteps or his painful early personal experience giving ed Washington County State’s attorney po-

38 THE VERMONT BAR JOURNAL • SPRING 2021 www.vtbar.org Book Reviews sition. able for its role in polluting Lake Champlain. ful memoir. Being a Nutmegger myself, I found Kim’s The decision was criticized by many at the ______run for public office, less than two years af- time but Kim lays out the pros and cons and, Geoffrey Fitzgerald is an attorney practic- ter moving to Vermont, a rather remarkable in some sense, allows the reader to form ing in Montpelier, Vermont in the fields of feat in and of its own right. When one does their own opinion. personal injury, contracts, real estate, fam- not have established friends and family con- Kim spent a considerable amount of his ily and general civil litigation. He formerly nections in one’s adopted home, it can be time as Attorney General rewriting Ver- clerked for Justice Hill, was a part of sev- difficult to get clients, let alone votes. Un- mont’s criminal code which, in the parlance, eral law firms practicing personal injury and daunted by this challenge, Kim set out on was a “strike all”, meaning a complete re- premises liability defense and has been a this journey and got himself elected as the peal and replacement of the existing laws. solo practitioner for the past 21 years. first full time State’s Attorney for Washing- The new code drafted under Kim’s super- ton County. vision was eventually adopted by the legis- Kim relates many courtroom anecdotes lature, but Kim asked that the bill be with- throughout his book, but he ties them into drawn during his tenure after an amendment the compelling social and pollical issues of reinstating capital punishment was inserted the day, to wit, the “war on drugs”, the “hip- into the legislation. pie/back to the land movement”, Nixon and In 1974, Kim lost his bid for reelection by Watergate and the 1968 Democratic Na- 500 votes. Kim examines at length a num- tional Convention. In this way, Kim takes the ber of the factors that led to his defeat at reader back in time and artfully places his the polls, but, all reasoning aside, Kim was personal story in a wider historical context. rocked by this setback. His personal life As State’s Attorney, Kim dealt with a num- was in turmoil and his professional life as a ber of rather grisly murder cases. Quite politician was over. Kim needed a change frankly, having lived in Central Vermont for and he needed time to figure out his fu- over 35 years, I was somewhat shocked by ture. So, with his family’s blessing, he set the violence that punctuated his years as a out on a months long journey across Can- prosecutor. That issue aside, however, Kim ada, down the west coast visiting brothers takes the reader on a rather wild ride de- and back along the south where he stopped tailing his relations with police, judges, his to learn more about his great grandfather on “The Power of Legal Project fellow attorneys, not to mention the defen- his mother’s side…a rather remarkable inter- Management: A Practical Handbook” dants who found themselves charged with lude in his life and an entertaining chapter by Susan Raridon Lambreth & crimes in his court, and he uses these anec- of his book. David A. Rueff, Jr. dotal tales to illustrate how the concepts of When he got back to Vermont, Kim hung Reviewed by Carolyn L. Connolly, Esq. honesty and truth necessarily play founda- out his shingle and, for the ensuing 35 plus tional roles in the life of every lawyer. years, he lived the life of a private practitio- You probably think that Project Man- Kim was not a seasoned litigator when he ner in Montpelier Vermont. Focusing on civ- agement (PM) is a dry subject and not took the position of State’s Attorney and il, criminal and family court litigation, Kim something you need to deal with as a law- he candidly admits to some of his early mis- proved to be a forceful and effective advo- yer. You might not understand the impor- takes. Drug offences predominated on his cate for his clients. Kim’s life work, however, tance—to your bottom line—of taking the court docket and Kim details how he had to extended far beyond the actual courtroom time at the outset of a new matter to plan, walk the high wire between the public’s in- as he was at the center of the effort to bring budget, and communicate with your client sistence on being tough on crime and his uniformity to child custody decisions and beyond the bare minimum required by the personal belief that addiction was a public he worked for several years on a complete Rules of Professional Conduct. You might health problem. rewriting of Vermont’s adoption law, both think that you already know what you are After serving two terms as State’s Attor- points of obvious pride and well-deserved doing after practicing for several decades ney for Washington County, Kim decided to praise. and don’t need to waste time with tasks run for Attorney General. My first question: But beyond the narrative story as to how that contribute to overhead instead of bill- who does that? Less than six years living in Kim managed the major conflicts in his life, able hours. If this is you, I urge you to take Vermont, with little or no prior associations the thing that sticks out to me when read- the time to read—or at least skim—this with or connections to the state, who in their ing his book is his ever-present curiosity and handbook. right mind would decide to run for statewide sense of humor. Kim dives in deep when he Discussion on how Legal Project Man- office? Of course, the time was right, given does not know his subject matter or he has agement (LPM) can be implemented by the office vacancy, but if one thing comes a difficult problem to solve, but he always the solo practitioner, law firms, and general through clearly in this memoir, Cheney does brings some levity to the task. At one point, counsel, make this book useful to anyone not shy from challenge or lack in self-confi- Kim explains at length how he defended the practicing law in any capacity. In my opin- dence. right of his dog to be with him at work while ion, it should be part of the required curric- As Attorney General, Kim’s time in office he was in public office. At another, he re- ulum at every law school. Being a fairly new was fraught with the deception and intrigue counts how he and Justice Skoglund tipped attorney myself, having knowledge of proj- surrounding the Paul Lawrence saga. For their hats to each other scooping dog waste ect management coming out of the gate those that are unfamiliar with this infamous on the statehouse lawn while Justice Sk- would have made the transition to practice situation, I am sure you will find the sordid oglund had one of his cases under advise- easier. details surrounding three “dirty cops” dis- ment. But perhaps the most telling mo- The first section of the book explains the turbing. For those who are familiar with ment of Kim’s life occurred when his two ex- necessity of LPM for those who might not the story, you will be amazed at the depths wives danced together at his long-lost ad- fully understand its relevance. The second of the corruption that took two governors opted daughter’s wedding. There are con- section provides an overview of the vari- eight years to fully expose. During his time flicts aplenty in “A Lawyer’s Life to Live”, ous parts of a matter with an entire chapter as Attorney General, Kim settled a signifi- but to the best of his considerable abili- devoted to each: engaging clients, plan- cant case against the International Paper ties, Kim Cheney managed them all with an ning out the details of the matter, budget- Company brought by the preceding Attor- open heart and a smile on his face and that ing, using the budget to assist with pricing ney General to hold the company account- fact comes shining through in this wonder- the matter, execution of the work, man- www.vtbar.org THE VERMONT BAR JOURNAL • SPRING 2021 3 9 aging communication on the matter with cost overruns directly contributing to firm client’s decision when working on a matter. all stakeholders including team members, write-offs. Traits that were studied include This chapter alone can help you do an audit evaluating the success of the matter and skepticism, urgency, sociability, resilience, of your current practices to make sure you how to use that information to improve fu- abstract reasoning, autonomy, and manag- are not putting yourself at unnecessary risk.

Book Reviews ture matters, and finally closing the matter. ing a team. Because lawyers tend to have LPM is form and checklist driven. The Section Three discusses ethical and busi- a high sense of urgency, there is resistance handbook includes a DVD. I had to break ness considerations of implementing LPM. to planning which is in direct opposition to out my eight-year-old Dell laptop with a Finally, Section Four discusses the consid- them being willing to implement or partici- built-in DVD-RW drive to find out what was erations for organizations. pate in LPM. Luckily, this can be overcome included. There are PDFs of the Appendi- What I didn’t know before reading this by training and integration of the proper ces and image files of the figures from each book and found quite fascinating was the LPM tools for the chosen method. chapter. With the information in the Ap- research on personality traits of lawyers An entire chapter is devoted to eth- pendices, you can easily set up LPM forms outlined in Chapter 12. It explains so much ics (Ch. 11) and how to use LPM to keep and a system that suits your individual because people who choose to be lawyers you on track with your legal obligations to needs. Happy planning! are definitively not the same as people who prevent issues from arising. It’s a proac- ______do not choose to be lawyers. The skills tive approach erring on the side of creat- Caryn L. Connolly, Esq. is a Legal Consul- and personality traits that make the aver- ing a comprehensive communications plan, tant who lives in Burlington, VT. age lawyer good at their job are precisely scope of work, budget, and not overstep- what lead to inefficiencies in matters and ping the bounds of what is ultimately the IN MEMORIAM

Hon. George T. Costes old. Judge Hall was born in Hartford, CT on pig roasts. Hall was, in every respect, a good Hon. George T. Costes, 97, passed away November 9, 1948 and moved to Vermont man. He was an exemplary public servant, a March 13, 2020, at the Franklin County Re- at age 11, growing up in Shaftsbury, VT. Pe- gentleman, a beloved family member, a kind hab Center with his family at his side. He ter considered and prided himself on being and dear friend to many, and a quintessen- was a District Court Judge, State Senator, a Vermonter. His great-great grandfather, tial Vermonter. He is survived by his beloved City Representative, City Prosecutor, Public Peter Washburn, was governor of Vermont wife, Maria Dunton; three children; three Defender, Justice of the Peace, City Coun- in the 1850s. Judge Hall attended the Uni- grand-children; two step-children and two cilman and acting Mayor during Mayor Jo- versity of North Carolina Chapel Hill, where step-grandchildren. seph Sullivan’s illness. He was born on Feb- he was a Morehead scholar. He then earned ruary 24, 1923, in Pittsfield, MA and gradu- a master’s degree in English, also at UNC, Karen Oelschlaeger ated from Bellows Free Academy, where he before graduating cum laude from Cornell Karen Oelschlaeger, died on April 19, enjoyed playing the violin and tennis and Law School. Judge Hall served as law clerk 2021, in her home in Montpelier. She was di- skiing at Jay Peak. He also graduated from to Judge Albert Coffrin of the District of Ver- agnosed with stomach cancer in 2018, two Vermont College in Montpelier and Bos- mont before becoming an Assistant U.S. At- days before her 34th birthday. She was very ton University School of Law. George en- torney. In 1986, he left government service clear that no one should say she “lost” any listed in the U.S. Navy where he served for to form Reiber, Kenlan, Schwiebert, Hall and “battle” or “war” with cancer, as she was nearly four years and following World War Facey P.C. in Rutland. He served as presi- no loser. Karen died grateful for Vermont’s II, he served 3 years in the Vermont Nation- dent of the Rutland County Bar Association Death with Dignity law. If any of the legis- al Guard as Command Officer of Headquar- and the Vermont Bar Association. In 2001, lators or lobbyists who worked to pass that ters Company, 3rd Battalion, 172nd Infan- he returned to public service as the U.S. At- law are reading this obituary, she’d like to try Regiment at Enosburg Falls, 3 years with torney for the District of Vermont. Following thank them from the bottom of her no lon- the 4638th Transportation Truck Company three successful years, he was nominated to ger beating heart. Karen was born in Char- in Saint Albans and 3 years in the Vermont the Court of Appeals by President George lotte, North Carolina on June 1, 1984. She State Guard, where he served as the Staff W. Bush. He became Vermont’s only federal worked at Ben & Jerry’s as a teenager, leav- Judge Advocate. He was Past President and appellate Judge in July 2004. Continuing his ing to pursue her passion for social justice a 50-year member of the St. Albans Rotary service to his profession, Judge Hall served organizing with the Fund for the Public Inter- Club, and awarded the Paul Harris Fellow- as a delegate of the Federal Judges Associa- est followed by Wesleyan University in Mid- ship. He was a 60-year member of Frank- tion to the International Association of Judg- dletown, Connecticut. She later became the lin Lodge, #4, F&AM, Mt Sinai Shrine and es. As a delegate, he traveled the world, youngest President of the League of Wom- its Motor Corps, Green Mountain Post # 1, working with foreign judiciaries on matters en Voters of Asheville-Buncombe County. American Legion for 50 years and Robert of administration, independence, continu- Karen obtained her Master of Social Work E. Glidden Post # 758, Veterans of Foreign ing education and governmental relations. from UNC at Chapel Hill and moved imme- Wars. He was a member of the Greek Or- He also served on the Board of Directors of diately to Vermont to enroll in VLS’s Accel- thodox Church and Saint Luke’s Episcopal the Vermont Law School and the Rutland Re- erated J.D. program and graduated cum Church and a former member of the Green gional Medical Center. He was a guest lec- laude in 2016. Karen then worked as a Dep- Mountain Chorus and AHEPA. George also turer at the Law School and dedicated him- uty State’s Attorney in Windsor County, Ver- enjoyed his many big game hunting trips. self to developing Vermont’s next genera- mont where she was a sex crimes prosecu- Survivors include his wife, his sons and seven tion of lawyers. Judge Hall mentored many tor. She was passionate about juvenile jus- grandchildren. talented young attorneys who worked as his tice and criminal justice reform and loved law clerks during his time on the bench. His her nieces and her pets. Hon. Peter W. Hall former clerks now work in prominent and Hon. Peter W. Hall a judge on the U.S. varied roles in private practice and public J. Robert “Bob” Maguire Court of Appeals for the 2nd Circuit, died on service. Peter enjoyed farm work, fishing, J. Robert “Bob” Maguire, 96, passed March 11, 2021 in Rutland. He was 72 years throwing horseshoes, gardening and annual away on April 18, 2021. Born on July 5,

40 THE VERMONT BAR JOURNAL • SPRING 2021 www.vtbar.org In Memoriam 1924, and attending high school in N.J., dence historic site, where each summer the where he received a law degree and then Bob enrolled at Princeton University in 1942 J. Robert Maguire lecture is presented in his received a specialized degree in Corporate but at the end of his first year, he joined the honor. Bob became one of the nation’s fore- Tax law at Boston University. Bob practiced Army. He was hospitalized in Japan for more most historians. He was an acknowledged law for many years with Kissane, Yarnell and than six months with malaria until he could expert in the study and interpretation of the Cronin (now Kissane Associates) before be- return home in February of 1946. He attend- American Revolution. He also was consid- ing elected Franklin County Probate Judge ed Cambridge University before graduating ered one of the world’s foremost authorities in 1993. He served on the Franklin-Lamoille from Princeton with honors. Bob returned on the “Dreyfus Affair” and on the complex Bank Board, CVAA Board (now Age Well), to Europe in October 1948, after being ap- life of Oscar Wilde. Bob was a remarkable was an AARP volunteer tax preparer and pointed to the Displaced Persons Commis- scholar who produced his last book on the volunteered for many years at the St. Albans sion before transferring to the ECA (the Eco- eve of his 90th birthday. Bob is survived by his Free Library. Bob also served in the Vermont nomic Cooperation Administration) in Frank- wife, their three children and grandchildren. Army National Guard. He was an incredi- furt, where he worked until the autumn of ble athlete, who coached little league base- 1950. He then returned to the US to enroll Hon. Robert P. Cronin ball and was assistant coach of the BFA high in Yale Law School. He joined the firm of Hon. Robert P. Cronin, 76, former Frank- school girl’s tennis team. In addition to his White & Case in New York City and began a lin County Probate Judge, passed away May love of baseball, he played tennis, including successful career as a corporate attorney. In 12th, 2021, at home with his loving family USTA league tennis traveling all over New 1949, while in Paris, Bob met Pauline “Polly” and friends at his side. Born in Burlington on England to play. He also enjoyed golf and Thayer, they married in 1954 and they spent October 22nd, 1944, Bob graduated from music, playing many different instruments. the last 67 years together. In 1963 Bob, Polly Richmond High School in 1962 where he Bob was funny, witty, and kind with an in- and their young family chose to leave New played soccer, basketball and baseball. He credible sense of fairness. Bob is survived by York City and move to Shoreham. Bob led attended the UVM where he played baseball his wife, Ruth Cronin of St. Albans, his broth- the successful effort to oppose the construc- for four more years, was a member of Kappa ers, sister and nephews. tion of a nuclear power-plant in East Bay. In Sigma fraternity and received the Seman’s so doing, he preserved the Mount Indepen- Trophy. Bob then went onto Boston College,

CLASSIFIEDS

needs and we seek a new team member to about/careers/current-openings/ HELP WANTED collaborate with our tax, corporate and es- Or via email to: tate planning lawyers. Rebecca Guenther, PHR, SHRM-CP ASSOCIATE ATTORNEY WANTED. Associate Attorney – Insurance Firm Manager Hayes, Windish & Badgewick is seeking an Coverage & Litigation. Paul Frank + Collins P.C. associate attorney to join our team. Prefer- PF+C also seeks an enthusiastic entry to P.O. Box 1307 ence is given to those with 3-5 years’ expe- mid-level associate for our growing Insur- Burlington, Vermont 05402-1307 USA rience in civil litigation, but those just start- ance Services pra¬¬ctice group. The work [email protected] ing with strong work ethic and motivation involves litigating insurance coverage and will be considered too. We are a small gen- bad faith claims, defending insurers in multi- eral practice firm with an emphasis on civ- district complex litigation, and counseling il litigation, insurance defense, and workers’ SERVICES insurers in various regulatory and claims han- compensation matters. We seek a candi- dling matters. The ideal candidate has excel- BRIEFS & MEMORANDA. date who is interested has high ethical stan- lent academic credentials and three to four Experienced attorney writes appellate dards, strong skills in research and writing, years of insurance coverage experience. Ex- briefs, trial memoranda. Legal writing/ap- along with the patience and desire to learn emplary candidates without such experience pellate advocacy professor; author of five the profession. Competitive pay and ben- will be considered. Law review and clerkship books. VT attorney since 1992. $60 per hour. efits offered. Position to remain open until credentials are preferred, but not required. Brian Porto, 674-9505. filled. Please send your resume and cover Candidates must have strong oral advoca- letter electronically to: cy and written communication skills, as well QDROs (qualified domestic Penny Webster, Office Manager as excellent legal research, writing and ana- relations orders). HAYES, WINDISH & BADGEWICK lytical skills. Candidates must have a serious I prepare QDROs and other retirement [email protected] interest and commitment to living and work- pay and pension benefit domestic relations ing in the wonderful state of Vermont. The orders for federal, state, municipal, military Attorney – Trusts + Estates / Com- candidate must be admitted or eligible for and private retirement plans as may be re- mercial Law. admission to the Vermont Bar. quired by the terms of the settlement agree- Paul Frank + Collins seeks a mid to se- PF+C serves its clients throughout North ment or the court’s final order. nior level attorney to join the firm’s Trusts America and the London and Bermuda in- I handle all initial contacts with the plan or and Estates team and Business team. Expe- surance markets from its Burlington, Ver- third party administrator and provide all nec- rience helping clients with estate planning mont office. The firm offers all the resourc- essary processing directions when the order (for both tax and non-tax planning purpos- es and opportunities of a large, internation- is ready for filing. es), wills, trusts, and estate and trust admin- al law firm while fostering a local, collegial, Vermont family law attorney since 1986. istration is essential. The ideal candidate will and collaborative work culture. We provide Contact me for additional information and also have relevant skills and experience to a competitive salary commensurate with ex- preparation rates. assist clients with business law, including for- perience, and excellent benefits in a truly so- Tom Peairs, 1-802-498-4751. mations, business succession, financing, and phisticated and exciting legal environment. [email protected] multi-faceted corporate work. We have an Applications may be submitted confi- www.vtqdro.com established clientele with varying complex dentially through: https://www.pfclaw.com/ www.vtbar.org THE VERMONT BAR JOURNAL • SPRING 2021 4 1