Five for Friday #102: It’s Friday I’m In Love

Welcome to #102!

You might recall that I used last week’s Mix Tape Edition to share a story about listening to DC101, an FM rock station in Washington D.C.  My post drew a surprising response.

You see, DC101 wasn’t the only station in town. It shared the airwaves with WHFS, an iconic progressive rock station.  And, my blog apparently attracts an inordinate number of readers who not only listened to D.C. FM rock in the 1990’s, but who preferred WHFS to DC101.

I heard from them.

Here’s an example: a Linkedin post in which a reader (who shall remain anonymous) shared last Friday’s quiz:

IMG_0859.jpg

I LOVE the share and certainly can’t quibble with the first half of the post.  (Worst case, it’s mere puffery.)  But “WHFS 102.3 was much better” is a clear violation of the attorney advertising rules!! It’s a qualitative comparison that can’t be substantiated.  See, Rule 7.2, Comment [3].

Alas, let’s not get into which station was better. In fact, I liked WHFS.  Not only that, it’s original spot on your FM dial is perfect fodder for the this week’s (#102) column.  Check it out:

 

Image result for whfs logo

Disclaimer: by the time I got to D.C., it had changed to 99.1.

In any event, as I said, I liked WHFS.  Really, it was my first exposure to alt/progressive rock.

By the way, in last Monday’s post, I mentioned HFStival. Check out the festival lineup over the years. Is there a more sneaky-underrated festival in history?  Some of those lineups are legit!

I’m curious – of the HFStivals, if you could only attend one, which would you choose? Personally, I’m having trouble picking between the shows that took place from 1998-2002.

See the source image

Anyhow, thinking about HFS made me realize one of the most glaring omissions in the history of this blog.

I’ve never referenced The Cure.

It’s an omission that, quite frankly, raises a substantial question as to my fitness as a blogger, not to mention one who uses a “fiveforfriday” to connect legal ethics to pop culture.

I’m not positive, but if I could borrow Bill & Ted’s phone booth (or Doc Brown’s flux capacitor) and travel back to the first time that I heard Friday, I’m in Love, I’d wager that young me would be listening to HFS.  It is somewhat embarrassing that the song has never been referenced in this column.

So, in honor of my HFS fans, I’ll end with this:

I don’t care if Monday’s blue
Tuesday’s gray and Wednesday too
Thursday I don’t care about you
It’s Friday I’m in love

Onto the quiz!

Rules

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • 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 doesn’t belong with the others?

  • A.   Substantially related matter
  • B.   Materially adverse interests
  • C.    Informed consent, confirmed in writing
  • D.  Whether to waive a jury trial, enter a plea, or testify

Question 2

Lawyer represented Client.  Once the representation ended, Client gave Lawyer a gift.  Which is most accurate?

  • A.  Lawyer must not accept the gift
  • B.  Lawyer may accept the gift, but only if Lawyer handled the matter pro bono
  • C.  Lawyer may accept the gift, especially if it’s a simple gift such as a holiday present or token of the client’s appreciation.
  • D.  Mike, objection.  The premise of this question is pure fantasy.

Question 3

Lawyer also works as a mediator.   Lawyer mediated a dispute between Brady & Bortles.  The mediation did not resolve the dispute. Now, Bortles wants to hire Lawyer in the matter.

True or False: even with Brady’s informed consent, the rules prohibit Lawyer from representing Bortles.

Question 4

It is not uncommon for me to receive an inquiry in which a lawyer asks what can be included in a particular type of motion.  For example:  “Mike, I’m thinking of filing a motion __  _______________, but don’t want to disclose any confidences.”

Typically, I reply with something like: “I think it’s best to cite one of the reasons that appears in the rule, then, if asked for more by the court, answer, but only by providing the information necessary to respond to the court’s specific question. And, even then, the motion doesn’t give you license to start blabbing about the case.”

What type of motion?

Question 5

For purposes of this column, #102 is sufficiently close to ’02, as in 2002.

This week, the United States Supreme Court heard an appeal of a criminal case in which defense counsel conceded a client’s guilt over the client’s objection.  Now, the client is on death row.  Although styled as a 6th Amendment, effective assistance case, it also involves ethics.  Rule 1.2(a) makes it very clear that the decision whether to plead guilty belongs to the client.  I intend to blog on the case, either tomorrow or next week.

In any event, in 2002, Halle Berry won the Academy Award for Best Actress for her role as the widow of a man who had been executed for his crime.  The movie also starred Billy Bob Thornton, Heath Ledger, Peter Boyle, Sean Combs, and Mos Def.

Yes, I realize that I just broke last week’s promise never again to reference Puffy.

Anyhow, name the movie.

 

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Conflicts: In some cases, appearances matter.

Last week, the Vermont Supreme Court issued an opinion in which it addressed this question:

  • “whether a court may terminate parents’ parental rights following a hearing in which, over an objection, the State was represented by the same lawyer who had previously represented the children in the same matter.”

Short answer: no.  The opinion is here.

The Court’s opinion relies on an analysis of Rule 1.9 of the Vermont Rules of Professional Conduct.  As such, I think it’s a natural for this blog. That being said, as was the Court, I want to be crystal clear: I am not suggesting that the State’s lawyer should face a disciplinary sanction.

By way of background, of the inquiries I receive, no topic comes up more often than conflicts of interest.  I rarely, if ever, say “yes, you have a conflict” or “no, you don’t.” Rather, I cite lawyers to the relevant rules, comments, and opinions, then leave the decision to the lawyer.

Similarly, if a lawyer asks whether opposing counsel has a conflict, I never provide a definitive answer.  It’s impossible to do so without hearing from opposing counsel. Again, I cite the lawyer to the relevant rules, comments, and opinions. I also offer to discuss the matter with opposing counsel.

That being said, when talking about conflicts, it’s not uncommon for me to say two things:

  1. the rules prohibit actual conflicts, not the appearance of a conflict; and,
  2. even if you decide you don’t have a conflict, do you want to deal with the appearance? The other side will almost certainly file a motion to disqualify or a disciplinary complaint.  Either can be costly and aggravating.

Which gets me to the Court’s recent opinion: at least in TPR cases, appearances matter.

I don’t want to bore you or make this blog too long.  Plus, the Court writes better than I do anyway.  So, I suggest reading the opinion.

Still, here’s a synopsis:

  • throughout a CHINS proceeding, Lawyer represented 4 children;
  • then, Lawyer represented the State in the subsequent TPR;
  • a guardian ad litem consented to Lawyer representing the State;
  • citing Rule 1.9, Mother’s attorney notified the trial court of concerns about Lawyer’s appearance for the State;
  • Lawyer argued that there was no conflict due to the State & children both taking the position that termination was warranted and, further, that the guardian had waived any conflict;
  • the trial court had “no concern” given that the State and children had the same interest (termination) and that the guardian had consented to Lawyer appearing for the State;
  • parents’ rights were terminated with respect to 3 of the children; and,
  • parents appealed.

When a lawyer has formerly represented a client in a matter, Rule 1.9 prohibts the lawyer from representing anyone in the same or a substantially related matter whose interests are materially adverse to the former client’s.  Exception: the former client gives informed consent that is confirmed in writing.

On appeal, the Court “decline[d] to parse the State’s and children’s specific positions in this case to evaluate whether they are actually materially adverse.”  Rather, the Court noted that:

  • “given the myriad issues in play in juvenile proceedings, the potentially dynamic nature of the parties’ positions, and the difficulty in discerning the children’s interests, determining whether the parties’ interests are truly aligned is a potentially complex undertaking.”

Thus, the Court concluded:

  • “as a matter of law that the potential conflict inherent in representing different clients in the same matter should be treated as an actual conflict for the purposes of determining whether counsel in an abuse-and-neglect case should be disqualified from subsequent representation of a different party in that same matter.”

In essence, then, the Court established a bright-line rule regarding disqualification in abuse & neglect cases, but recognized that the bright-line rule “is broader than the strict requirements of the ethical rule as applied in disciplinary proceedings.”

Finally, the Court noted that a lawyer’s prosecution of a TPR after having represented the children in the same matter “undermines the integrity of the judicial process . . . creates an appearance of impropriety and may be inconsistent with the lawyer’s role as a representative of the State – factors that are particularly significant in the context of abuse-and-neglect proceedings.”

In short, for disqualification purposes in abuse & neglect cases, appearances matter.

Image result for appearances matter

 

 

Remember that time you didn’t know your wife had been disbarred?

Vermont is a great place to live & practice law.  But, with practicing in a small state comes lots of knowledge.

I mean, seriously.  There are places in the country where it’s tough to remember that your wife had been disbarred.

The ABA Journal has the story of an Illinois lawyer who was “censured for failing to keep disbarred wife out of his law office.”  I don’t want to get into the nitty gritty.  Suffice to say, it was a run of the mill case involving a lawyer whose lawyer/wife pled guilty to stealing $2.3 million from clients.

Apparently, the lawyer did not stop his wife from continuing to practice law after she was disbarred. So, the Illinois Attorney Regulation & Disciplinary Commission charged him with enabling her to do so, as well as with failing to supervise a non-lawyer assistant who enabled her to do so.

I guess the old “i tried, but my assistant let my wife in” defense didn’t work.

But I digress.

What makes me thankful to practice law in Vermont is the lawyer’s answer to the disciplinary charges.

Per the Legal Profession Blog, when initially charged by disciplinary authorities with letting his disbarred wife continue to work, the lawyer’s formal answer was:

  • “Admitted, subject to the qualification that [lawyer] lacks sufficient information to admit or deny when he learned that his wife . . . had been disbarred.”

Business must be good in the big cities when your wife can get disbarred and it doesn’t even register.

Archer

Conflicts of Interest: keep it simple, trust your gut.

Conflicts are tough.

But not so tough that you shouldn’t trust your gut.

As most of you know, I provide lawyers with guidance on the Rules of Professional Conduct.   Over the past few years, I’ve averaged 1100 inquiries per year.  About 40% of those have been on conflicts of interest.

Inquiries on conflicts share one thing in common: lawyers almost always know the answer before they contact me.  Why?  Because if you feel the need to call me, text me, or e-mail me about a conflict, you probably have one.

Although my job is to know the rules inside & out, I don’t like getting lost in them. After all, they were written by lawyers.  I’ve been at this job for about 20 years.  To me, the rules are a perfect example of lawyers being lawyers and making the simple complicated.

It’s very simple.  As a lawyer, you owe duties to your client.  If any other duty or allegiance tugs you in a direction other than that which your client is headed, you might have a conflict. The “any other duty or allegiance” could be to another client, a former client, the court, a third person, or yourself.  The one that seems to arise most often: the duty to keep confidential any & all information relating to the representation of a former client.

I try to simply things.  Some of you think I’m overly simplistic.

Guilty as charged.

But, sometimes, simplification leads to realization.

Look back a few paragraphs. I used the word “tugs” for a reason.  The reason is because I think we’re all familiar with the game that, at least when I was a kid, was called “tug-o-war.”  As I blogged here, if you ever feel like the piece of red tape, you likely have a conflict.

Or, as those of you who were in Montreal know, if this picture reminds you of a tension you feel between duties to your client and duties to someone/something else, you probably have a conflict:

IMG_2644

For those of you upset that this blog didn’t contain a link to, or quote from, a single rule or case, fine.  My next few posts on conflicts will be more lawyerly.

Or not.

For now, let’s keep it non-lawyerly simple: if ANYTHING ever tugs you, however slightly, in a different direction than that in which your client is headed, stop and consider whether you have a conflict. Then, if you think you do, trust your gut.

And, after that, call me.  I can count on less than one hand the number of times that I’ve said “no you don’t” when someone has called me to say “mike, I think I have a conflict.”

 

 

 

 

Monday Morning Answers: Mix Tape Edition

Friday’s questions are here.

Before I get to the Honor Roll & answers, kudos to the VBA’s Young Lawyers Division for putting together (yet another) fantastic Thaw in Montreal.  A special thanks to VPR’s Mitch Wertlieb for sharing his thoughts on (and obvious love for) radio with us Saturday morning.  From the “Vermont is a small but awesome world” department, I had an opportunity to meet Mitch’s wife Erin.  As we chatted, I learned that they live in the neighborhood where I grew up, in the house in which my elementary school principal lived.

Oh yeah, my readers make this world pretty awesome too.  I received not 1, but FOUR offers to borrow a tape player.  Also, I love the fact that a few of you reacted to my DC 101 post with declarations of undivided loyalty to WHFS.  HFStival rocked! But not quite as much as did DC101.

Finally, Hal Miller earns special mention this week.  In between surf breaks outside The Point, he was the only reader to remark upon the not-so-hidden Wagon Wheel  (Darius Rucker version here) references  in Friday’s column. Per tradition, Friday night at The Thaw included many Vermont lawyers enthusiastically, if not competently, singing along to the Solstice version at Hurley’s.

Without further adieu . . .

The Honor Roll

  • #ABFJ
    • Jordan Levine, Audrey Smith, Nikki South, Rachel Thompson
  • Karen Allen, Esq.
  • Andrew DelaneyMartin Associates
  • Deb Emerson, Country Walkers (that’s what makes this so difficult)
  • Bob Grundstein, Esq.
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Glenn JarrettJarrett & Luitjens
  • Melanie Kehne, Assistant Attorney General
  • Kevin LumpkinSheehey Furlong & Behm
  • Shannon LambPratt Vreeland Kennelly Martin & White
  • Hal Miller, First American
  • Jack McCullough, Project Director, Vermont Mental Health Law Project
  • Herb Ogden, Esq.
  • Nancy Hunter Rogers, Chamberlin Elementary School

Answers

Question 1

Which is different from the others and, arguably, does not belong:

  • A.  The amount of the fee and the results obtained.
  • B.  Whether the fee is fixed or contingent.
  • C.  The fact that the client paid the fee.
  • D.  The reputation & ability of the lawyer who performed the services that generated the fee.

See, Rule 1.5.  The fact that a client agrees to pays (or has paid) a fee is NOT one of the listed criteria to determine whether a fee was reasonable.  It is the Court that has the final say on whether a fee was reasonable.  Whether the client agreed or paid is not, in and of itself, dispositive.

Question 2

Fill in the blank.  (two words)

Even if it does not give rise to a conflict under Rule 1.7 or 1.9, I often caution lawyers against taking a case in which it’s likely they’ll have to depose or cross-examine a      ______            _______       .

FORMER CLIENT

Question 3

The Vermont Rules of Professional Conduct require:

  • A.   Three-way reconciliation of trust accounts.
  • B.   An actual signature (as opposed to a signature stamp) on trust account checks.
  • C.   Collected funds prior to disbursement. See, Rule 1.15A(f).  For the exceptions, see Rule 1.15A(g). It lists the instruments that are deemed so reliable that lawyers may disburse against them on deposit, before they become “collected funds.”
  • D.   All of the above

Question 4

It’s most likely that “Web Bugs” pose ethical dilemmas for attorneys who:

  • A.  Include them in emails to opposing counsel.  I’ve posted 3 blogs on Web Bugs –
  • B.  Review an adverse party’s social media presence
  • C.  Review a juror’s social media presence
  • D.  Use cloud vendors that do not encrypt data that is at rest

Question 5

I’ve blogged often on licensing paralegals to practice law.

A non-lawyer gained fame for her legal work on behalf of a class of plaintiffs whose drinking water had been polluted with hexavalent chromium.  The defendant was the Pacific Gas & Electric Company.

Part 1:  Name the non-lawyer:  Erin Brokovich

Part 2:  Name the actress who, in ’01, won the Academy Award for Best Actress for her portrayal of the non-lawyer.   Julia Roberts

Image result for images of erin brockovichImage result for Erin Brockovich Movie

 

 

 

 

Five for Friday #101: The Mix Tape Edition

Welcome to Friday!

Headed down south, to the land of the pines, and I’m thumbin’ my way into North Caroline.

Oh wait, that’s for later today.

Soooooo . . . 101!

101 makes me think of DC101.  It’s an alt rock station in Washington, D.C.  I first encountered the station in August 1990.  Back then, it played mainstream rock.  And when this kid arrived in town for his 1L year at GW Law, well, I was hooked.

As I spent this week pondering what I’d write about in this intro, I sensed that it’d be DC101  The more my thoughts percolated, a nagging feeling grew that, somewhere, I had a DC101 mix tape.

(Aside – if you’re too young to know what a “mix tape” is, don’t let anybody tell you that you’re missing out.  You’re not.  I made & listened to mix tapes.  Anyone who tells you that they prefer pause/rewind/fast-forward/eject/flip-over to streaming whatever song they want, whenever they want, spent too much time outside in the cold over New Year’s.)

Without a hat on.

Now, back to my nagging feeling of having saved a mix tape.

In addtion to a notion that I’d saved a mix tape, I had an inkling that it would have The Black Crowes on it.  Why? Because I have an enduring memory of listening to DC101 for hours in my 1L apartment, waiting & waiting  & waiting to hit “record” as soon as Jealous Again came on.

So, I searched for the tape.

I found it.

 

 

Ummm….can we talk about what a dork I must have been?

Here’s the DC101 logo:

Image result for dc 101 logo

Look again at the pictures of my mix tape.

I DREW IN THE LIGHTNING SYMBOL!!

At the time, I wasn’t 7 years old.  I was in my FIRST YEAR IN LAW SCHOOL!  Oh my word.

Alas, I no longer have a cassette player, and I can’t find the little plastic thing into which I’d have dutifully tucked my hand-written song list.  So, I don’t know what songs are on the tape. Unless a reader finds me a cassette player – perhaps yours is stored next to your Betamax? – we’ll never know.

Still, it’s clear that I made the tape in November 1990.  I did a little research and, as it turns out, Hard to Handle peaked at #1 on the rock charts on November 10, 1990.  Since they were on the same album, maybe Jealous Again was getting air time as well.  Or, maybe, I’m confusing the two.

One thing I’m not confused about is this:  I remember exactly where I was the first time that I ever heard November Rain.  I was on the Memorial Bridge, riding shotgun with Todd Sinkins.  Todd was my good friend, and 2L/3L roommate, and teammate on O.P.P., the greatest IM football team in the history of law schools.  As we were driving back to our apartment in Arlington, a song came on the radio.  Todd was super excited & said something like “wow. I can’t believe they’re playing this song. It’s so long!”

Yes it is.  But for many years now, whenever I venture down the YouTube or Vevo rabbit hole, the journey usually includes a stop at November Rain.

What’s the November Rain story got to do with the mix tape?

The station Todd & I were listening to that day:

Image result for dc 101 logo

Mama rock me.

Onto the quiz!

Rules

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • 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 different from the others and, arguably, does not belong:

  • A.  The amount of the fee and the results obtained.
  • B.  Whether the fee is fixed or contingent.
  • C.  The fact that the client paid the fee.
  • D.  The reputation & ability of the lawyer who performed the services that generated the fee.

Question 2

Fill in the blank.  (two words)

Even if it does not give rise to a conflict under Rule 1.7 or 1.9, I often caution lawyers against taking a case in which it’s likely they’ll have to depose or cross-examine a      ______            _______       .

Question 3

The Vermont Rules of Professional Conduct require:

  • A.   Three-way reconciliation of trust accounts.
  • B.   An actual signature (as opposed to a signature stamp) on trust account checks.
  • C.   Collected funds prior to disbursement.
  • D.   All of the above

Question 4

It’s most likely that “Web Bugs” pose ethical dilemmas for attorneys who:

  • A.  Include them in emails to opposing counsel
  • B.  Review an adverse party’s social media presence
  • C.  Review a juror’s social media presence
  • D.  Use cloud vendors that do not encrypt data that is at rest

Question 5

I’ve blogged often on licensing paralegals to practice law.

A non-lawyer gained fame for her legal work on behalf of a class of plaintiffs whose drinking water had been polluted with hexavalent chromium.  The defendant was the Pacific Gas & Electric Company.

Part 1:  Name the non-lawyer

Part 2:  Name the actress who, in ’01, won the Academy Award for Best Actress for her portrayal of the non-lawyer.

 

Lawyers Robbing Banks: where the duty of competence meets Was That Wrong

Regular readers know that two of my favorite topics are:

  1. (1) the duty of competence; and,
  2. (2) my Was That Wrong column.

My posts on tech competence are here.  The fiascos that have earned lawyers an appearance in Was That Wrong are here.

Well, like peanut butter & chocolate in a Reese’s cup, it seems that competence & Was That Wrong have finally joined forces to bring me even greater enjoyment in unison than each does on its own.

The ABA Journal and HeraldNet report that a lawyer tried to rob a bank. Some interesting tidbits:

  • In 2014, the lawyer’s license was suspended as a result of trust account mismanagement.  He still owes about $50,000 as a result of that event
  • The lawyer demanded $50,000 from the bank
  • The demand note instructed the teller to ““Count to 500, 1 Mississippi, 2 Mississippi, 3 Mississippi etc. etc. etc. before you call police.”

The final tidbit is where competence comes in.  Is that competent bank robbing?

Now, you might argue, “but Mike, Rule 1.1’s duty of competence doesn’t apply to a lawyer who is robbing a bank!”  In the words of the inimitable Lee Corso . . .

corso

Take a look at Rule 5.7. Basically, the rule makes lawyers subject to all the other rules when they are providing “law-related services.”

Shrute Question

Channeling my inner Dwight Schrute: “question: is robbing a bank to pay back trust funds a law-related service?”  For entertainment purposes, let’s say “answer: yes!” Thus, Rule 1.1 applies.

With that having been established, the question becomes whether “count to Mississippi 500 before you hit the alarm” satisfies the duty of competence.  I don’t think so.  Here’s why.

First, 500 is way too high.  If I know anything from movies, it’s that tellers hit the alarm right befote the robber is out the door…….but only if they haven’t already sneaky hit it while pretending not to know how to open the drawer!

The robber had 5 Mississippi max.

Next, the critical fact here is how the lawyer phrased the note: he instructed the teller to say the number, then “Mississippi.” Wrong construct.

You see, everyone knows that when rushing the quarterback in touch football, it takes far longer to count “Mississippi, number” than it does “number, Mississippi.”  That’s how I always sacked my brother . . . “1 miss, 2 mis, 3 mi”  and the rush was on.

Meanwhile, when I had the ball, I made him count “Mississippi 1, Mississippi 2, Mississippi 3.”  For whatever reason, in that construct, would-be tacklers tend to enunciate “Mississippi” longer than in the reverse construct, thereby giving the QB more time to pick them apart.

In conclusion, the lawyer failed to ensure maximum getaway time by failing to instruct the clerk to use the slowest Mississippi construct possible.  Ergo, violation of the duty of competence.

And, yes.  I suspect this lawyer will find his way into Was That Wrong.

P.S.  stories about bank robberies always remind me of the Fun Lovin’ Criminals.

 

 

Thaw Bound? Protect client data at the border.

The VBA’s Young Lawyers Division Thaw is this weekend.  It’s shaping up to be as terrific as usual, and there’s still time to register.

Undoubtedly, many of you rely on mobile devices to practice law.  Reminder: as a lawyer, you have a duty to take reasonable precautions to protect against the disclosure of client information during a border crossing.

I’ve posted three blogs on this topic.  The most recent was Crossing the Border? Consider Bringing Only What You Need.  The post includes a link to (and summary of) the NYC Bar Association’s advisory opinion 2017-5.  The opinion, which is here, addresses an attorney’s duties with respect to protecting client information before, during, and after a border search.  The ABA Journal also reported the advisory opinion.

The post and links might be worth reviewing.

For more, and thanks to a tip from Attorney Caryn Waxman, check out Jeff Richardson’s latest post on his iPhoneJD blog: New Customs and Border Protection policy on searching attorney iPhones.  The post focuses on the “new procedures that a border patrol agent must use when confronted with data protected by the attorney-client privilege or work product.”  Note: the duty to protect client data at the border is NOT limited to data on Apple devices.

If you’re going to Montreal, have a great time!  But, before leaving, consider how important it really is to have client data with you for the weekend.

Border.jpg

 

 

 

 

Supreme Court Adopts Sex Rule

Yesterday, the Vermont Supreme Court issued an order amending Rule 1.8 of the Vermont Rules of Professional Conduct.  The amendment reads:

  • “A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.”

The Court’s order is HERE.

The Professional Responsibility Board proposed the amendment last fall.  As I noted at the time,

“the Board’s position is that the imbalance of power inherent in the professional relationship between lawyer and client necessitates an absolute ban on a sexual relationship between the two.” 

The amendment goes into effect on March 12, 2018.

Related posts:

Legal Ethics

Monday Morning Answers

Go Dawgs!

Georgia

Friday’s questions are here.  Today’s answers follow the honor roll.

HONOR ROLL

ANSWERS

Question 1

How long are lawyers required to keep records of funds held in trust?

  • A.   The rules are silent.  A Supreme Court opinion holds that records must be kept for at least 3 years from the termination of the representation.
  • B.   2 years from the termination of the representation.
  • C.   6 years from the termination of the representation.  Rule 1.15(a)(1).
  • D.   The rules set out different retention periods based on the nature of the case that gave rise to the representation.

Question 2

Obviously, a lawyer should always take steps to protect a client’s interests.

However, there is one rule that specifically states that “_______________________, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests . . ..”

(This is not a “fill in the blank,” but if I were to fill in the blank, it would give away the answer to the question.)

It’s the rule on:

  • A.  Competence
  • B.  Diligence
  • C.  Client Under a Disability
  • D.  Declining or Terminating Representation (Withdrawal).  Rule 1.16(d).

Question 3

Lawyer called me with an inquiry.  I listened, then responded:

“Only if it’s reasonable to believe that you can provide competent & diligent representation to each, it’s not prohibited by law (whatever that means), they aren’t adversaries in the same case, and each provides informed consent, confirmed in writing.”

What general issue did Lawyer call to discuss?

Whether a concurrent conflict of interest can be waivedRule 1.7(b).

Question 4

This week, the Department of Justice made an announcement that, arguably, has ethical implications for Vermont attorneys.  The announcement concerned:

  • A.   Immigration
  • B.   Privacy
  • C.  Marijuana.  Vermont lawyers do not violate V.R.Pr.C. 1.2(b) by providing advice on marijuana-related matters that are legal under Vermont state law.  For more, see this post. Whether providing such advice violates federal law is a question beyond the scope of the Rules of Professional Conduct.
  • D.  Electronically Stored Information

Question 5

Even if you’ve never heard of Ted Buckland, Dr. Kelso, The Gooch, or New Sacred Heart Hospital, if you know a of clothing that’s common in a hospital, you can make an educated guess at this question.

Ted Buckland is in-house counsel at New Sacred Heart Hospital. He’s also one of the most pathetic and least competent lawyers in TV history.  Among other things,

  • Ted lived at home with his mother well into his adult life;
  • Although a lawyer, Ted’s mother thinks that he is a doctor;
  • He failed the bar exam 5 times, before passing it in Alaska;
  • Ted’s low self-esteem & chronic anxiety often leave him unable to provide Dr. Kelso, the hospital’s Chief of Medicine, with any legal advice, not to mention competent legal advice;
  • Once, a patient slipped & fell at the hospital.  Ted is so incompetent that his immediate response was to blame the fall on the patient’s slippers . . . not realizing that the patient was wearing hospital-supplied booties.
  • Ted is in a band.  It’s name is The Worthless Peons.
  • The Gooch broke Ted’s heart.
  • In one episode, Ted warned the hospital’s staff:

Finally, doctors, if there is a mistake, don’t admit it to the patient. Of course, if the patient is deceased – and you’re sure – you can feel free to tell him or her… anything.

The reason Ted’s mother thinks that he is doctor is because, once, he came home from work wearing a type of clothing that’s common in a hospital.  He told her he’d saved someone’s life that day.

Name the show on which Ted Buckland is in-house counsel at New Sacred Heart Hospital.

Scrubs.

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