On Friday, I posted 20 questions for 2020. Far more than the usual 5, I didn’t expect anyone to take time to submit answers. Rather, the post was meant to serve as a resource addressing some of the basics on professional responsiblity and ethics in Vermont.
But submissions I received! Thank you! The answers follow today’s unexpectedly large Honor Roll.
- Karen Allen, Esq.
- Penny Benelli, Dakin & Benelli
- Andrew Delaney, Martin & Delaney Law Group
- Laura Gorsky, Esq.
- Bob Grundstein, Esq.
- Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
- Elizabeth Kruska, President-Elect, VBA Board of Managers
- Jordana Levine, Marsicovetere & Levine
- Hal Miller, First American
- Kristen Shamis, Monaghan, Safar, Ducham
- Jay Spitzen, Esq.
- Jason Warfied, Vermont Law School, JD Candidate
- Caryn Waxman, Barber & Waxman
- Allison Bates Wannop, Special Counsel, Vermont Department of Public Service
- Thomas Wilkinson, Jr., Cozen O’Connor
The rules with which Vermont attorneys must comply went into effect on September 1, 1999. They are called:
- A. The Vermont Rules of Professional Conduct.
- B. The Vermont Code of Professional Responsibility.
- C. The rules.
- D. Those damn rules.
Vermont’s attorney regulation program is called the “Professional Responsibility Program.” The PRP is part of the:
- A. The Secretary of State’s Office of Professional Regulation
- B. The Vermont Bar Association
- C. The Vermont Judiciary. Chapter II, Section 30 of the Vermont Constitution vests the Supreme Court with the authority to structure an attorney discipline and disability system. To that end, the Court has promulgated Administrative Order 9, the order creating the Professional Responsibility Program.
- D. The Office of the Attorney General
Vermont lawyers must carry professional liability insurance.
- A. True. It is required by statute.
- B. True. It is required by the rules.
- C. True, but there is an exception for government employees & in-house counsel.
- D. False. (I intend to blog on this in the coming weeks & months, maybe more than once.)
Rule 1.1 requires lawyers to provide clients with competent representation. In 2018, Vermont became the 33rd state to adopt a Comment to Rule 1.1 that makes it clear that the duty of competence includes a duty to understand the risks and benefits of _______________.
Speaking of the comments to Rule 1.1, in 2019, Vermont added another comment to the rule. Following the recommendation of the ABA and several commissions that looked at this important issue, the new comment makes it clear that _____________ is an aspect of competence.
Rule 1.2(d) prohibits a lawyer from assisting or advising a client to engage in conduct that violates the law. In Vermont, as with a few other states, that poses issues for lawyers whose clients are involved with a particular industry.
▪What’s the industry?
Cannabis/Marijuana. The concerns led to the Court adopting Comment 14 to Rule 1.2(d). The Comment clarifies that a lawyer does not violate the rule by assisting and advising clients on matters that are legal under state law.
Rule 1.3 requires lawyers to act with reasonable diligence while representing clients. A comment to the rule suggests that the duty requires sole practitioners to:
- A. have a succession plan
- B. use a cloud-based trust accounting system
- C. hire a bookkeeper (if only part-time) to reconcile the trust account
- D. Either B or C.
Under Vermont’s rules, a lawyer _______ disclose a client’s intent to commit suicide.
- A. Must
- B. Must not
- C. May. V.R.Pr.C. 1.6(c) Comment
In Vermont, if a prospective client meets with a lawyer in good faith, but does not retain the lawyer, the lawyer’s duty of loyalty is relaxed vis-à-vis the client. That is, if the lawyer did not receive information that could be significantly harmful to the prospective client, the lawyer may appear adverse to the prospective client.
However, another duty is not relaxed.
Which duty remains as stringent as if an actual attorney-client relationship had been formed?
The duty to maintain the prospective client’s confidences. See, V.R.Pr.C. 1.18
In Vermont, how much of a lawyer’s own money may the lawyer keep in a client trust account?
- A. $0
- B. No more than $100.
- C. No more than $500.
- D. An amount necessary to cover bank fees & service charges. V.R.Pr.C. 1.15(b)
In Vermont, a lawyer may not disburse funds from trust unless the deposit that is the source of the disbursement constitutes “collected funds.”
Is the following statement true or false?
- There are no exceptions to the rule.
That is false. There are several instruments that lawyers my presume to constitute “collected funds” upon deposit. These exceptions appear in Rule 1.15(g).
Fill in the blank (it’s way more than one word):
- Unlike many other states, Vermont has a rule that specifically prohibits a lawyer from ________________ in order to gain an advantage in a civil matter.
Present, Threaten to Present, or Participate in Presenting Criminal Charges
Fill in the blank:
“In representing a client, a lawyer shall not communicate on the subject of the representation with a ____________ the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.”
- A. Person. V.R.Pr.C. 4.2
- B. Party
In Vermont, which set of rules is relaxed for lawyers who provide pro bono services under the auspices of a non-profit or court approved program?
The rules on _________:
- A. Trust Account Management
- B. Communicating with a Represented Person/Party
- C. Confidences
- D. Conflicts of Interest. V.R.Pr.C. 6.5.
Under Vermont’s legal ethics rules, when a lawyer receives a document relating to the representation of a client that the lawyer knows or should know was inadvertently sent, the lawyer ________________.
- A. must notify the sender. V.R.Pr.C. 4.4(b).
- B. must notify the client and abide by the client’s instructions on whether to notify the sender.
- C. must notify the client and abide by the client’s instructions on whether to use or return the document.
- D. B and C.
By rule, a pooled-interest bearing trust account must be reconciled:
- A. Quarterly.
- B. Periodically, but no less than quarterly.
- C. Timely, with “timely” meaning “no less than monthly.” V.R.Pr.C. 1.15A(a)
- D. Regularly.
By rule, what must a Vermont lawyer maintain for 6 years following the termination of a representation?
- A. The client’s file.
- B. A copy of the client’s file.
- C. Records of funds or property held for the client during the representation. V.R.Pr.C. 1.15(a).
- D. Copies of any advertisement that caused the client to inquire about representation.
The matter is Swift v Braun.
- Associate works at Small Firm. Small Firm represents Swift.
- Large Firm represents Braun.
- Associate accepts a job at Large Firm.
Unver Vermont’s rules, can Large Firm continue to represent Braun?
- A. Yes.
- B. Yes, if Associate is screened from working on Swift v. Braun.
- C. No.
- D. It depends whether Associate was personally & substantially involved in working on Swift v Braun while at Small Firm. V.R.Pr.C. 1.10(a).
Questions 19, 20 and bonus
In 2019, the ABA updated its list of the Top 25 legal movies of all-time. 2 of the top 3 are set in the same state.
- 19. Name one of the movies. To Kill a Mockingbird
- 20. Name the other. My Cousin Vinny
- Bonus: name the state. Alabama