Bar Counsel’s Annual Report for FY25.

The Vermont Supreme Court has long been committed to proactive attorney regulation. In 1999, the Court created the Professional Responsibility Program (PRP) by promulgating Administrative Order 9 (AO 9).  A.O. 9’s purpose read:

• “The Professional Responsibility Program is established to provide a comprehensive system of regulation of the legal profession. Its objectives are: (1) to resolve complaints against attorneys through fair and prompt dispute resolution procedures; (2) to investigate and discipline attorney misconduct; and (3) to assist attorneys and the public by providing education, advice, referrals, and other information designed to maintain and enhance the standards of professional responsibility.”

The Court’s proactive approach emphasizing dispute resolution and preventive guidance as much as discipline can be traced to the ABA’s 1992 adoption of the McKay Commission’s report Lawyer Regulation for a New Century.[1]  Among other things, the report identified the “good” and “bad” of lawyer regulation systems.  On the “bad” side:

• ““The disciplinary process also does nothing to improve the inadequate legal or office management skills that cause many of these [disciplinary] complaints.”

Thus, the report’s recommendations included “lawyer practice assistance” designed to help lawyers to provide competent representation to clients.

The Vermont Supreme Court agreed. When it promulgated A.O. 9, the Court created the position of “bar counsel” and charged the incumbent with providing “preventive advice and information to assist attorneys to maintain high standards of professional responsibility.”

For more than a decade, bar counsel was a 0.5 FTE. Conversely, as the full-time disciplinary prosecutor, I had a full-time deputy. Then, in 2012, the Court reallocated resources. The position of bar counsel was bumped up to 1.0 FTE, with the deputy disciplinary counsel slot reduced by half.  In other words, the Court chose to devote a higher percentage of resources to prevention than had previously been allocated.  I became Bar Counsel, Beth DeBernardi moved from deputy to Disciplinary Counsel, and the rest is history.

The Vermont Professional Responsibility Program was among the earliest to devote such a focus to proactive regulation and preventive guidance. Others followed.

In 2016, the ABA House of Delegates adopted Resolution 106.  The resolution urged states to adopt model regulatory objectives, including:

• public protection,
• the “advancement of appropriate preventive and wellness programs.”
• the “efficient, competent, and ethical delivery of legal services,” and,
• “disciplinary sanctions for misconduct.”

In other words, Resolution 106 recognized that prevention is as integral aspect of public protection.

In 2019, the ABA House of Delegates adopted Resolution 107 which urged states to design regulatory systems rooted in Proactive Management-Based Regulation(PMBR).  Per the resolution, “with PMBR, the regulator works with lawyers to address risks to avoid problems, rather than reacting to attorney misconduct after it has occurred.”

That’s right. In 2019, the ABA adopted a resolution urging jurisdictions to do what we’ve been doing, at least in part, since 1999. Today, there are at least 44 other states that, like Vermont, make someone available to respond to inquiries from attorneys.

The PRP’s objectives remain relatively unchanged from those first articulated in 1999.  A.O. 9 continues to state that one of the PRP’s purposes is:

• “to assist attorneys and the public by providing education, guidance, referrals, and other information designed to achieve, maintain, and enhance professional competence and professional responsibility.”

To that end, bar counsel is charged with responding

• “to inquiries from judges, lawyers, legal professionals, law students, and the public regarding the Rules of Professional Conduct, professionalism and professional responsibility, legal ethics, law practice management, and behavioral health issues that impact a lawyer or judge’s professional competence,” and providing
• “referrals, educational materials, guidance, and preventive advice and information to assist lawyers to achieve, maintain, and enhance professional competence and professional responsibility.”[2]

The Vermont Judiciary’s fiscal year closed yesterday.  Here is information related to the inquiries I received in FY 2025.

• I received 928 inquiries.  839 were from lawyers.
• The most common result of an inquiry was “guidance” from bar counsel.  That happened 744 times.
• The vast majority of inquires were resolved quickly: 710 on the same day as received, another 135 within one-to-two business days.

I do not track the practice areas from which inquiries arise. However, I track practice settings:

Most inquiries involve more than one issue or rule.  For example, an inquiry about a potential conflict of interest often includes discussion of the confidentiality rule and the rule on withdrawal. I track each month’s five most frequently raised rules/issues.  Here are the rules/issues that made the “top 5” in at least one month and the number of months in which that rule/issue appeared in the “top  5.”

Conflicts and confidentiality come up far more often than any other category.  In fact, after those two, all other categories are in close competition for each month’s top 5.

Seminars and my blog are other tools that I use to provide preventive guidance and to assist lawyers to maintain high standards of professional responsibility.

In FY 2025, I presented at 27 seminars for a total of 31 CLE hours.

I pay for the “free” version of WordPress.  Which means that I don’t track IP addresses.  I only know general stats.  The 2025 blog stats:

The most-visited page was, by miles, Was That Wrong?  During FY 2025, the page received more than double the visits of any other page. The five most read of FY 2025’s posts:

• Lying about undergoing chemo: was that wrong? With the added bonus of a SECOND Seinfeld  episode (10/23/24)
• Wellness Wednesday: thoughts on recognizing the signs & symptoms and getting involved (3/19/25)
• Wellness Wednesday: Summer Stuff (6/25/25)
• November is Pancreatic Cancer Awareness Month – Learn the Signs & Symptoms (11/13/24)
• Become extraordinary at the ordinary (9/11/24)

It’s interesting to me that the most read posts are wellness-related posts. Maybe I’m not so much a legal ethicist as a I am a lawyer who writes about the well-being of the legal profession! Of course, as we know, wellness is an aspect of competence.  We can’t best advocate for the others without also looking out for our own well-being.

Given that the most popular posts were related to wellness, I’ll share an update on my own.

Most importantly, attorney regulation isn’t the only thing in which it’s important to be proactive. As I blogged last November, know the signs and symptoms of pancreatic cancer! I likely saved my own life by calling my primary care physician in September of 2023 to complain about unexplained weight loss and changes to my stool.

Whipple surgery is the only realistic hope for long-term survival after being diagnosed with pancreatic cancer.  I was incredibly fortunate to be diagnosed at a point that surgery was possible.  80% of patients are not so fortunate – they’re diagnosed too late to undergo surgery.

After chemo and radiation shrank my tumor enough to make surgery possible, I was “Whipped” in June of 2024.  Incredible fortune struck again: my surgeon got negative margins and there was no evidence that the cancer had spread to my lungs, liver, or lymph nodes.

Even with successful Whipple surgery, there’s a 77% chance of recurrence within five years, with recurrence is most likely to occur within the first two years.  So, while my surgery didn’t take place this fiscal year, I remain in care.  For now, “care” is scans and blood draws.

So far, I’ve had two scans in FY25.  Each was good. So good that, after a January scan, my oncologist moved my scans from an “every 3 months” schedule to “every 6 months, with a blood test every 3 months.” Honestly, I should’ve been happier that I was doing well enough to warrant less frequent scans.  I confess, however, that there’s a morbid comfort in more frequent scans – if it comes back, at least I’ll know sooner and be able to restart chemo quicker.

Anyhow, the first blood test under the new schedule was on April 16. It caused a scare.

The blood test showed elevated levels of both Cancer Antigen 19-9 and alkaline phosphatase.  CA 19-9 is a protein that is a common marker of pancreatic cancer.  Alkaline phosphatase is a liver enzyme that is a marker for various conditions, including pancreatic cancer that has metastasized to the liver.  Given the results, my July scan was moved up to May 22, then again to May 6.

The waiting was tough. As I waited, I only told two people. A friend who is a lawyer and a friend who is a doctor. There was no way I was telling my family and other close friends. I mean, there’s nothing that can be done, so why cause worry.

Before May 6, because every other scan I’d had was early in the morning, the results popped into MyChart later the same day.

The May 6 scan was at 430PM.  The results didn’t pop into MyChart until noon the next day while I was at an appointment with my oncologist.  Those 20 hours felt like 20,000 and I must have refreshed MyChart 200,000 times. 

Fortunately, the scan did not show any sign that the cancer had returned or metastasized.  CA 19-9 levels can fluctuate for other reasons.  ALP levels can be elevated for non-cancer reasons, including when, like mine, the liver has to work hard to make up for no longer having a pancreas or small intestine around to help out.

So, my final pancreatic cancer report for FY25 is that all is good! Thank you for your continued support. I can’t adequately describe how much it means to me.

Oh – one more number. I ran 1,495.95 miles during FY25. The goal for FY26 is to get back up to 2000!

There you have it: FY25 in a nutshell.

As always, let’s be careful out there.

[1] The more formal title is Lawyer Regulation for a New Century: Report of the Commission on the Evaluation of Disciplinary Enforcement.

[2] See, Administrative Order 9, Rules 5.B and 5.C