On Constitution Day, Consider Civics & Giving

Today is Constitution Day.  It marks the day in 1787 that the delegates to the Constitutional Convention signed the document.

Last night, the Vermont Bar Association and the Vermont Judiciary held their 4th annual celebration of Constitution Day.  This year’s event took place at Vermont Law School and featured presentations from Justice Eaton, Justice Robinson, Judge Tomasi, Judge Pearson and Professor Teachout.  The theme was “Free Speech, Free Press, Free Society.” You can read more about the night on the VBA Blawg.

I have no doubt that the presentations were fantastic.  But we need to do more.

More than once, I’ve blogged on disturbing statistics related to civic education.  Last May, I posted this blog in which I linked to an ABA Journal piece that reported on “gaps in Americans’ civic knowledge.”  The numbers are concerning.

Not as concerning as numbers I blogged about two years ago.  Marking Constitution Day 2017, I wrote about a study that revealed that nearly 40% of Americans cannot name even one of the protections afforded by the First Amendment.

There are 6.

We must do more to promote civic education.

Bob Carlson is the immediate past president of the American Bar Association.  He’s quoted in the ABA piece that I referenced above:

  • “Democracy is not a spectator sport, but to participate, you need to know the rules. That’s too important to leave to chance. The ABA conducted the survey to determine how well the American public understands the law, the Constitution and their rights and responsibilities. The results clearly show that we have more work to do.”

Carlson added:

  • “American democracy does not function without a fully informed citizenry. As Justice Sandra Day O’Connor said: ‘The practice of democracy is not passed down through the gene pool. It must be taught and learned anew by each generation of citizens.’”

You can help.  Many Vermont lawyers volunteer in schools and before community groups speaking about the Constitution, the separation of powers, and civics.  If you’re interested in doing the same, contact Jennifer Emens-Butler.  Jennifer is the VBA’s Director of Education & Communication.

Finally, keep an eye out for the Vermont Bar Foundation’s Access to Justice Campaign. Two years ago this month, I laid down a challenge.  In my post The Constitution & Karaoke, I wrote:

“As I’ve mentioned at a few seminars, my initial exposure to the U.S. Constitution was during the Saturday morning cartoons I watched as a kid.  Courtesy of the folks at Schoolhouse Rock!, that’s when, where, and how I first learned about the origins of the Constitution and the words to The Preamble.

Of course, if people are not able to access the legal services that they need to protect their rights, the Constitution might mean little to them.  So, in honor of Constitution Day, if an attorney or firm donates $1,000 to the Vermont Bar Foundation’s Access to Justice Campaign by Friday, September 29, I’ll karaoke the Schoolhouse Rock! version of The Preamble at the VBA’s upcoming annual meeting.”

It worked.  I held up my end of the bargain and, with my parents sitting front & center, sang like it’d be my last time ever on stage.

And it will be.  As my friend and fellow attorney James Valente has suggested, I’d have raised more money for the A2J Campaign by soliciting donations not to sing.

He’s right.  And I’ll be the first to say that any argument to the contrary would be frivolous and wholly without support in fact or law.

Still, my commitment to remaining a one-time wonder doesn’t change the fact that the Constitution will mean little if the people who need its protections most cannot access legal services.  If it hasn’t already, the VBF A2J campaign will start soon.  Be ready.

On Constitution Day, consider civics and giving.

Thank you.

Schoolhouse Rock Preamble

NC Advisory Opinion on Reviewing & Accessing Social Media Platforms

Yesterday, I came across the North Carolina State Bar’s 2018 Formal Ethics Opinion 5.  It “reviews a lawyer’s professional responsibilities when seeking access to a person’s profile, pages, and posts on a social network to investigate a client’s legal matter.”  As such, it’s blogworthy.

Social Media

The opinion opens with an important point: technology is ever evolving. Social networks and social media platforms are no different: their features “are constantly changing.”  The duty of competence includes keeping abreast of the benefits and risks of relevant technology.  This echoes Comment 8 to Vermont’s Rule 1.1 and is the exact point I’ve tried to make when addressing the duty to safeguard client information.

Next, the opinion addresses five questions.   My synopsis:

  1. Yes, it’s okay to look at information that is public.  Note, however, that repetitive viewing for no other reason than to cause the person to receive notice that you looked can rise to the level of impermissible harassment.  In other words, competence likely includes knowing which platforms notify a person that someone has viewed their profile.  I blogged on that very point here.
  2. No, you may not use deception to access a restricted (or private) portion of a person’s social network presence.
  3. Yes, it’s okay to request access to restricted (or private) portions of an unrepresented person’s social networks.  As long as the request does not include deception or dishonesty, and as long as you correct any misunderstanding that the unrepresented person has of your role.**
  4. No, you may not send a request for access to restricted (or private) portions of a represented person’s social networks.  To do so would violate the rule that prohibits communicating with a represented person on the subject of the representation.  Nor may you direct a third person to do the same.
  5. Yes, you may request and accept information from a third party who has access to the restricted (or private) portions of a person’s social networks.  You may not, however, direct or encourage a third person to use deception or misrepresentation to gain access.**

For more, check out the entire opinion.

** Note: the opinion makes quite clear that it does not “obviate” the Comment to Rule 8.4 that authorizes a lawyer to advise “a client or, in the case of a government lawyer, investigatory personnel, of action the client, or such investigatory personnel, is lawfully entitled to take.”

Other resources

Monday Morning Answers #175

Welcome back to another work week. Wherever you are, I hope your Monday weather is as fantastic as it is here at headquarters.

Friday’s questions are here.   The answers follow today’s Honor Roll.

Most importantly: you have spoken.  On the issue of expirations dates, here are the results from Friday’s poll:

When it comes to expiration dates on food:

  • 63.3% – I’m like J&J. Expiration dates arrive well before the food goes bad. No mold or odor? It’s fine! 
  • 20% – I’m like Mike & Taylor.  Never, ever after the expiration date.
  • 16.7% – One or two days past is ok, but that’s the max.”

As always, thanks to all who reached out with more specific responses.  I loved every one of them!

Have a great day!

Honor Roll

  • Karen Allen, Esq.
  • Matt AndersonPratt Vreeland Kennelly Martin & White
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, John Marshall Law School
  • Jennifer Emens-Butler, Director of Education & Communication, VBA
  • Erin GilmoreRyan Smith & Carbine
  • Laura Gorsky, Esq.
  • Bob Grundstein, Esq.
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy, JB Kennedy Associates, Blogger’s Mom
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Kevin LumpkinSheehey Furlong & Behm
  • Lon McClintock, Esq.
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Hal Miller, First American
  • Herb Ogden, Esq.
  • Robyn SweetCORE Registered Paralegal, Cleary Shahi  & Aicher
  • Jonathan Teller-Elsberg, Vermont Law School, Class of 2020
  • Jason Warfield, Vermont Law School, Class of 2020

Answers

 

Question 1

Which is most accurate?  By rule, a lawyer shall ___________:

  • A.  reasonably consult with the client about the means by which the client’s objectives are to be accomplished.  
  • B.  abide by the client’s direction as to the means by which the client’s objectives are to be accomplished.
  • C.  B, unless to do so would violate the Rules of Professional Conduct.
  • D.  None of the above.  The rules require a lawyer to abide by the client’s objectives but are silent as to the means by which those objectives are accomplished.

This is the exact language from Rule 1.4(a)(2), the rule that outlines the scope of a lawyer’s duty to communicate with a client.  Per Rule 1.2(a), a client owns the objectives.

Question 2

By rule, when representing a client, a lawyer shall not communicate with a person who is represented by another lawyer absent the consent of the other lawyer.

True or False: the rule only applies if the represented person’s interests are adverse to the interests of the lawyer’s client.

FALSE.  Rule 4.2 applies whenever a person is represented.

Question 3

Lawyer called me with an inquiry.  I listened then said “there are 3 exceptions to the rule.  The first is if the testimony relates to an uncontested issue.  The second is if the testimony relates to the nature and value of legal services rendered in the case.”

Given my response, the testimony of who?

  • A.   an expert witness
  • B.   Lawyer’s former client, and former client is adverse to Lawyer’s current client
  • C.   a lawyer
  • D.  Lawyer’s client, and Lawyer’s client suffers from a diminished capacity.

This is Rule 3.7, Lawyer as Witness.

Question 4

By rule, Disciplinary Counsel and the Supreme Court are authorized to conduct & order, respectively, compliance reviews & audits of a lawyer or law firm’s:

  • A.  financial records
  • B.  financial records, including trust accounts
  • C.  financial records, including trust & fiduciary accounts
  • D.  C, but only upon receipt of information sufficient to establish that there is probable cause for the compliance review or audit.

The authority to conduct & order compliance reviews & audits of a lawyer or law firm’s financial records, including trust and fiduciary accounts appears in Rules 1.15A(b) and 1.15A(c).

Question 5

Privileges, confidences, conflicts.

In real-life, Paul Giamatti’s father, Bart, served as Commissioner of Major League Baseball.  There, Bart effectively disbarred Pete Rose by banning him from the sport.

On television, Paul Giamatti plays Chuck Rhoades, United States Attorney for the Southern District of New York.  Initially, the show focuses on Rhoades’ fixation with building a criminal case against Bobby Axelrod, an incredibly wealthy hedge fund trader who owes much of his fortune to gains made as a result of the 9/11 terrorist attacks.  A complicating factor?  Rhoades’ wife, Wendy, is a psychiatrist who works as a “performance coach” at Axe Capital, the hedge fund owned by Axelrod.

Central to the show’s plot are Wendy’s relationships with Rhoades and Axelrod, and the issues related to privileges, confidences, and conflicts that arise as a result.

Name the show.

BILLIONS

Image result for billions

Five for Friday #175: Superstitions & Expiration Dates

Happy Friday!

On the superstition spectrum, I’m much closer to Steve Wonder

Image result for stevie wonder very superstitious

than I am to Michael Scott.

Image result for michael scott superstitious

That being said, Friday the 13th doesn’t bother me.  No, when it comes to superstitions, most of mine relate to sports or food.  In fact, I’m using today’s intro to ask my readers to weigh in on a particular of my food superstitions, one that is not shared by two of my most loyal readers.  More on that in a moment.

First, my food-related superstitions include:

  • it’s bad luck to set a microwave for a time that ends in 0.  (e.g.: 1: 59 is far safer than 2:00.)
  • it’s bad luck to pour the cream or milk after you’ve poured the coffee. put the cream or milk in first, then the coffee. Always.
  • in a restaurant, it’s bad luck to disclose your order to someone you’re eating with before you announce the order to the server;
  • in a restaurant, it’s bad luck to order the same thing as someone eating with you.
  • thus, it’s obvious that, in a restaurant, it’s bad luck not to order last.

(Don’t worry, over dinner, my wit, charm, and conversational skills will cleanse your palate of how insufferable I was prior to ordering.)

Fact:  I live my life by the superstitions listed above.  However, I write today for your input on the food-related superstition that is most critical to my belief system: expiration dates.

I treat consuming food after the expiration date like Taylor Swift treats getting back together: never ever.   Literally.  If the expiration date is the 15th, I might not even consume it on the 13th.  There is zero chance that I will use it on the 16th.  To me, this isn’t even a superstition.  It’s science.

Now, as I mentioned,  at least two of my most loyal readers disagree with me on this issue.  I’m not sure that I should I identify them.  Thus, to protect their anonymity:

  • each has a first name that begins with J;
  • one has known me for every single second of my life; and,
  • the other works for the Vermont Bar Association.

Their cavalier attitudes towards expiration dates leaves me worried for their health.  Seriously.   I’m not talking about using something a day or two after the deadline.  I’m talking weeks!  That’s not wellness!

So, here’s what we’re going to do.   I’ve set up a poll.  It’s here.  Please weigh in on this important issue. You don’t have to take the legal ethics quiz to do so. .

Onto the quiz!

Rules

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception – but one that is loosely enforced – #5 (“loosely” = “aspirational”)
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

Which is most accurate?  By rule, a lawyer shall ___________:

  • A.  reasonably consult with the client about the means by which the client’s objectives are to be accomplished.
  • B.  abide by the client’s direction as to the means by which the client’s objectives are to be accomplished.
  • C.  B, unless to do so would violate the Rules of Professional Conduct.
  • D.  None of the above.  The rules require a lawyer to abide by the client’s objectives but are silent as to the means by which those objectives are accomplished.

Question 2

By rule, when representing a client, a lawyer shall not communicate with a person who is represented by another lawyer absent the consent of the other lawyer.

True or False: the rule only applies if the represented person’s interests are adverse to the interests of the lawyer’s client.

Question 3

Lawyer called me with an inquiry.  I listened then said “there are 3 exceptions to the rule.  The first is if the testimony relates to an uncontested issue.  The second is if the testimony relates to the nature and value of legal services rendered in the case.”

Given my response, the testimony of who?

  • A.   an expert witness
  • B.   Lawyer’s former client, and former client is adverse to Lawyer’s current client
  • C.   a lawyer
  • D.  Lawyer’s client, and Lawyer’s client suffers from a diminished capacity.

Question 4

By rule, Disciplinary Counsel and the Supreme Court are authorized to conduct & order, respectively, compliance reviews & audits of a lawyer or law firm’s:

  • A.  financial records
  • B.  financial records, including trust accounts
  • C.  financial records, including trust & fiduciary accounts
  • D.  C, but only upon receipt of information sufficient to establish that there is probable cause for the compliance review or audit.

Question 5

Privileges, confidences, conflicts.

In real-life, Paul Giamatti’s father, Bart, served as Commissioner of Major League Baseball.  There, Bart effectively disbarred Pete Rose by banning him from the sport.

On television, Paul Giamatti plays Chuck Rhoades, United States Attorney for the Southern District of New York.  Initially, the show focuses on Rhoades’ fixation with building a criminal case against Bobby Axelrod, an incredibly wealthy hedge fund trader who owes much of his fortune to gains made as a result of the 9/11 terrorist attacks.  A complicating factor?  Rhoades’ wife, Wendy, is a psychiatrist who works as a “performance coach” at Axe Capital, the hedge fund owned by Axelrod.

Central to the show’s plot are Wendy’s relationships with Rhoades and Axelrod, and the issues related to privileges, confidences, and conflicts that arise as a result.

Name the show.

Image result for bobby wendy chuck one picture

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Judicial Recusal: Guidance from Mag & the ABA

In my first year as a high school varsity basketball coach, I started a sophomore guard named Chris Magistrale.  “Mag” (pronounced “madge”) was a terrific player, teammate, and person.   By the time his high school basketball career ended, he’d been named captain, earned numerous all-league & all-state honors, and scored more than 1,000 points.  He and I remained close over the years.

A few years after graduating, Mag got into reffing.  He eventually worked his way up to the varsity level, reffing in the same league in which he used to play and in which I continued to coach.  Somewhat surprisingly, one year, Mag was assigned to ref our season-opener.  He worked a great game, neither helping nor hurting his alma mater & old coach.

Still, a few opposing coaches expressed concern to the referee in charge of assigning officials.  From then until my retirement, Chris never again worked one of my games.

And rightfully so.  In basketball, when it comes to the fairness of the game, appearances matter.

Last week, the ABA’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 488.  The opinion provides guidance as to judges’ obligations to recuse themselves due to a social or personal relationship with a party or lawyer.  The ABA Journal and Lawyer Ethics Alert Blog reported on the opinion.

The opinion begins by citing to Rule 2.11 of ABA Model Code of Judicial Conduct. The rule governs disqualification.  Vermont’s equivalent is Rule 3(E) of the Vermont Code of Judicial Conduct.  For the most part, it mirrors the Model Rule by requiring recusal whenever a “judge’s impartiality might reasonably be questioned.”  Then, the VT rule lists various relationship in which it is presumed reasonable to question the judge’s impartiality.

Vermont’s rule includes another critical component.  As I read Rule 3(G), even if a judge’s initial (and perhaps internal) decision is that recusal is not required, the judge must nevertheless “disclose any fact or matter relevant to the question of impartiality that, in the judge’s view, may require disqualification under Rule 3(E)(1).”

In any event, back to the ABA Opinion.

The opinion divides judges’ social and personal relationships into three categories:

  1. Acquaintances
  2. Friendships
  3. Close Personal Relationships

The conclusion:

  • ” In summary, judges need not disqualify themselves if a lawyer or party is an acquaintance, nor must they disclose acquaintanceships to the other lawyers or parties. Whether judges must disqualify themselves when a party or lawyer is a friend or shares a close personal relationship with the judge or should instead take the lesser step of disclosing the friendship or close personal relationship to
    the other lawyers and parties, depends on the circumstances.”

Judicial ethics are not my bailiwick. Nevertheless, I find the final sentence in the block-quote a bit surprising.  It strikes me that “close and personal” should require recusal.  Indeed, my sense is that the Vermont bench errs on the side of caution and that our judges disclose and recuse themselves more often than the opinion suggests is required.

To me, that’s a good thing.  Like basketball, when it comes to the fairness of the judicial process, appearances matter.

By the way, Chris is still pretty terrific.  He is making a difference in this world.  Here’s Mag now:

 

Monday Morning Answers – The Fair

Happy Monday!  Friday’s questions are here.  The answers follow today’s Honor Roll.

Honor Roll

  • Laura Gorsky, Esq.
  • Bob Grundstein, Esq.
  • Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
  • Jonathan Teller-Elsberg, Vermont Law School, Class of 2020,
  • Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

Which belongs somewhere else than with the others?

A lawyer shall:

  • A.   keep the client reasonably informed about the status of the matter.
  • B.   explain the matter to the extent reasonably necessary to permit the client to make informed decisions.
  • C.  in an ex parte proceeding, inform the court of all material facts known to the lawyer which will enable the court to make an informed decision
  • D.   Trick question. All 3 are in separate rules.

C is in Rule 3.3(d), and is an aspect of the larger duty of candor to a court.  A & B are parts of Rule 1.4 and the duty to communicate with a client.

Question 2

True or false.

There’s a rule that specifically requires a lawyer to make reasonable efforts to expedite litigation, consistent with the interests of the client.

TRUE – Rule 3.2

Question 3

By rule, a lawyer shall not act as an advocate in a trial in which:

  • A.  the lawyer is likely to be a “necessary witness”
  • B.  another lawyer in the lawyer’s firm is a party
  • C.  another lawyer in the lawyer’s firm is a witness
  • D.  All of the above.

This is the language from Rule 3.7 and disqualifies the lawyer who is likely to be a necessary witness from acting as an advocate at trial.  The situations in B & C are not absolute bans, but only DQ the lawyer if the relationships otherwise create a conflict.

Question 4

A client’s failure to abide by the terms of a fee agreement:

  • A.   is not grounds for a lawyer to move to withdraw
  • B.   mandates that the lawyer move to withdraw
  • C.   permits the lawyer to move to withdraw.  Rule 1.16(b)(5); See also Comment [8]
  • D.  is not covered by the rules of professional conduct

Question 5

Inspired by a recent text from one of the first people ever to follow this blog.

Bob Loblaw is the Bluth family lawyer on Arrested Development.  His advertising slogan is “You don’t need double talk, you need Bob Loblaw!”  Also, as do all great lawyers, he blogs.  His blog is the “Bob Loblaw Law Blog.”  The Bluth family hired Bob to replace the incompetent Barry Zuckerkorn.

In real life, the actors who play Loblaw and Zuckerkorn also played characters in a sitcom that debuted 30 years before Arrested Development.

Name the sitcom.

First, if you didn’t pick up on the joke, Bob Loblaw is named as such in order to sound like “blah blah blah.”  His blog is “blah, blah, blah, blah, blah.” 

Scott Baio plays Loblaw and Henry Winkler plays Zuckerkorn.   An eternity ago, the two played Chachi & Arthur Fonzarelli (Fonzie) in Happy Days.

See the source image

The Fair

Blogger’s Note: I’m on a blogging hiatus this week.  Today marks the opening day of the Champlain Valley Fair.  So, I’m re-posting a post from last year’s first day of The Fair. It ran on August 24, 2018.

*********************

She kept the hotel key.

Welcome to #128!  Vermont Route 128 is, of course, how I get to the Steeple Market, which is the official market of this blog.  And, of course, Route 128 ends in Essex, home of the Champlain Valley Fair.  Where, tonight, the gang and I are going to the Old Dominion concert.

I love the fair.  ALways have.  I’m not positive, but I think my parents used it as a baby-sitting tool when I was a kid.

Michael, take your brother to the fair.”

“Mom, it’s like 7AM.”

“Now!  And stay all day.”

“That’s what we did yesterday.”

“Michael!!!”

Latchkey kids are the best.  But, I digress.

Oddly, for liking the fair so much, I do not like rides.  Not one single bit. Mainly because I’m a big ole chicken.  I have vivid memories of paralyzing fear gripping me – – as I stood in line for a ride!  The ride itself?  Awful. Like, on a scale of 1-10, it was infinity level of awful.  I’d close my eyes and pray for the entire ride.  I think my stomach might clutch tonight if I even happen to glance at the Pirate Ship.

No, for me, it’s the food.  And the people watching.  But mostly the food.  Fried dough.  Al’s French Frys.  The magical building where every single food item is maple. I mean, seriously, how awesome is that?  EVERY SINGLE THING HAS MAPLE!  Maple!  Nature’s best condiment!  (well, after peanut butter).

But the best of them all?  Mr. Sausage.

Image result for mr. sausage champlain valley fair

Back in the day, I worked at a gas station on Shelburne Road.  My buddy Skip’s dad owned it.  Skip knew Stan Gumieny, aka Mr. Sausage, and we both knew Stan’s daughters, Julie & Jill. For 2 summers, I took a week off from working at the gas station so I could work for Stan, grilling sausages at the Fair.

Sweet Italian sausage.  Hot and spicy sausage.  Grilled peppers & onions, the greasier the better.  So much mustard that the health department might arrest you on the spot.

I don’t remember many details.  I remember it was hard work.  Hot, and busy.  And I was kind of lazy – Stan often had to yell at me not to serve sausages that were only half-cooked.  Health regulations or something silly like that.  But I had a crush on Jill, so I was more than willing to work double shifts.

And the smell.  I always loved the smell of the food at the Fair.   I know you all know what I mean.  Drop me in blindfolded and tell me to guess where I am, it’d take a millisecond. And, to this very day, even though I rarely eat it, I love the smell of sausage being grilled.

Mostly, I recall it as being fun.  Hanging out with my friends, acting like we were real restraunteurs, cranking the tunes & drinking beers as we cleaned the grills each night after closing.  Endless, in our minds. Looking back, it’s one of those things that you do, having no idea how good you have it at the time.

It was the best summer job I ever had.

Alas, as it does, life intervened.  Summers end.

I haven’t seen Skip, Jill, or Julie in forever. I don’t even know where they are.  But, I know this: tonight, whether or not he still works the grill, Stan’s Mr. Sausage stand will be at the fair, serving up fully cooked, fantastically tasty sausages.

And I’m going to have one.

Onto the quiz!

Rules

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception: if you must, open book for Question 5 . But, we try to play that one straight.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

Which belongs somewhere else than with the others?

A lawyer shall:

  • A.   keep the client reasonably informed about the status of the matter.
  • B.   explain the matter to the extent reasonably necessary to permit the client to make informed decisions.
  • C.  in an ex parte proceeding, inform the court of all material facts known to the lawyer which will enable the court to make an informed decision
  • D.   Trick question. All 3 are in separate rules.

Question 2

True or false.

There’s a rule that specifically requires a lawyer to make reasonable efforts to expedite litigation, consistent with the interests of the client.

Question 3

By rule, a lawyer shall not act as an advocate in a trial in which:

  • A.  the lawyer is likely to be a “necessary witness”
  • B.  another lawyer in the lawyer’s firm is a party
  • C.  another lawyer in the lawyer’s firm is a witness
  • D.  All of the above.

Question 4

A client’s failure to abide by the terms of a fee agreement:

  • A.   is not grounds for a lawyer to move to withdraw
  • B.   mandates that the lawyer move to withdraw
  • C.   permits the lawyer to move to withdraw
  • D.  is not covered by the rules of professional conduct

Question 5

Inspired by a recent text from one of the first people ever to follow this blog.

Bob Loblaw is the Bluth family lawyer on Arrested Development.  His advertising slogan is “You don’t need double talk, you need Bob Loblaw!”  Also, as do all great lawyers, he blogs.  His blog is the “Bob Loblaw Law Blog.”  The Bluth family hired Bob to replace the incompetent Barry Zuckerkorn.

In real life, the actors who play Loblaw and Zuckerkorn also played characters in a sitcom that debuted 30 years before Arrested Development.

Name the sitcom.

Monday Morning Answers #174

Welcome to Monday! Friday’s questions are here.  The answers follow today’s Honor Roll.

This week, I’m giving extra credit to Jack McCullough.  Jack sent me an email in which he expertly tied Question 5 to one of my favorite topics: basketball.

As you’ll see, the answer to Question 5 is John Adams and the Boston Massacre.  Jack pointed out that Crispus Attucks, one of the victims of the massacre, was the first American killed during the Revolution.  Jack added that Oscar Robertson, arguably the greatest basketball player in history, graduated from Crispus Attucks High School in Indianapolis.  Hollywood hasn’t made a move about The Big O and his high school teammates, but the story of their championship season is as compelling as any in the history of the Hoosier state.

Image result for oscar robertson

Honor Roll

  • Karen Allen
  • Matt AndersonPratt Vreeland Kennelly Martin & White
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, John Marshall Law School
  • Honorable John M. Conroy, United States Magistrate Judge, District of Vermont
  • Bob Grundstein, Esq.
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • John LeddyMcNeil, Leddy, & Sheahan
  • Deb Kirchwey, Esq.
  • Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
  • Aileen LachsMickenberg, Dunn, Lachs & Smith
  • Kevin LumpkinSheehey Furlong & Behm
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Jeff MessinaBergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Jim Runcie, Runcie & Ouimette
  • Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

A comment to one of the rules says:

“Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statement of material fact.”

The quoted language appears in a comment to the rule that requires:

  • A.  Competent representation.
  • B.  Diligent representation.
  • C.  Fairness to opposing counsel & parties.
  • DTruthfulness in statements to others.  V.R.Pr.C. 4.1.  I’ve written on “puffery” and the ethics of settlement negotiations here and here.

Question 2

Which set of rules are relaxed for (1) lawyers who move between private practice and government practice; and (2) lawyers who provide short-term legal services under the auspices of a program sponsored by a court or non-profit, and without expectation by the lawyer or client of continuing representation?

The rules on conflicts of interests.  With respect to lawyers who move between government and private practice, Vermont doesn’t impute all conflicts and allows screening.  With respect to relaxed conflicts rules & pro bono work, see Rule 6.5.

Question 3

Lawyer is holding funds in trust.  There is a legitimate dispute between Lawyer’s client and a third person as to who is entitled to a portion of the funds.  Entitlement to the remainder is not in dispute.

True or false:  Lawyer must promptly distribute all portions that are not in dispute, even before the dispute as to a particular portion is resolved.

True.  V.R.Pr.C. 1.15(e).

Question 4

I’ve asked this question before, but I’m asking it again because I’ve received multiple inquiries about the rule over the past few weeks.

The rule on trial publicity applies:

  • A.  to any lawyer who is participating in or has participated in the investigation or litigation of a matter.  V.R.Pr.C. 3.6(a).
  • B.  only to a lawyer who is participating in or has participated in the investigation of a criminal matter.
  • C.  only to prosecutors in a criminal case.
  • D.  None of the above.  There is no rule on trial publicity.

Question 5

Speaking of the Revolutionary War and the duty of competent representation, here’s a two-part question.

In an argument made during a jury trial that took place in 1770, a criminal defense attorney said:

  • “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence . . . It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished. But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, ‘whether I do good or whether I do evil is immaterial, for innocence itself is no protection,’ and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.”

Name the lawyer and the event that resulted in the lawyer’s clients being charged.

John Adams defended the British soldiers charged in connection with the Boston Massacre.

 

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