Five for Friday – Thanksgiving

Hi all!  Here’s a #fiveforfriday that has no basis in reality, but is my attempt to provide some sort of connection between law, the rules of professional conduct, and Thanksgiving.

Rules – for this week

  • None.
  • 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
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

Neal Page is a character in a movie that takes place over Thanksgiving.  Indeed, the movie is about Page’s attempt to get home for Thanksgiving.  Del Griffith is another character from the same movie.  Griffith is a shower curtain salesman.  They met in New York City and, eventually, arrived in Chicago via milk truck.

Here’s my imaginary scenario:

In connection with all civil & criminal claims that resulted from their travel adventures, Attorney represents Page and Lawyer represents Griffith.  Talk about complex litigation: depending on the matter, Page & Griffith find themselves as adversaries, co-plaintiffs, co-defendants, and co-victims.  We’re talking arson, credit card fraud, wrong-way driving, a hotel burglary, and an alleged assault on a taxi driver.

Both Attorney & Lawyer are competent, so they understand the value of visual evidence.  Here’s a picture that each used in one of the many trials that dealt with the fallout from their clients’ misadventures – your task, name the movie.

PTA MAP.gif

Question 2

Lawyer represents Client.  The issue: a dispute related to Opposing Party’s contractual right to slap Client, including whether a slap that took place on Thanksgiving should or should not count towards Opposing Party’s number of contractually allotted slaps.  The most critical witness – Lily, in her role as Slap Bet Commissioner.

Name the TV show.

Question 3

As friends, Monica and Rachel had some interesting Thanksgiving adventures.

One Thanksgiving, Monica invited Will Colbert to dinner.  I always wondered if Rachel ever talked to a competent lawyer about suing Monica for emotional distress. I mean, when they were kids, Will had founded the “I Hate Rachel” club!

Name the actor who played Will in the Thanksgiving episode.

Question 4

One Thanksgiving, Arlo and his friend Rick agreed to take some trash to the dump as a favor to some friends who had converted a church into a restaurant.  The dump was closed for the holiday, so they dumped the trash off a cliff.  The next day, they were arrested for littering.  Attorney was assigned to represent them.

Presumably, competent representation will require Attorney to interview the restaurant owner.

What’s her name?

Question 5

In a speech about Tater and Tot, a famous (and real) lawyer said:

“And it is my great privilege — well, it’s my privilege — actually, let’s just say it’s my job — to grant them clemency this afternoon. As I do, I want to take a moment to recognize the brave turkeys who weren’t so lucky, who didn’t get to ride the gravy train to freedom — who met their fate with courage and sacrifice — and proved that they weren’t chicken.”

Name the speaker.

Turkey lawyer

 

 

 

Advertisements

Was That Wrong?

Don’t forget to send me your votes for Top 3 novels involving the law, a lawyer, or lawyers!

Now, I know it has only been a week since I posted a Was That Wrong?, but as they say, you’ve got to go where the evidence leads you.  Plus, for those of you for whom the next few days will include a daunting amount of time with family, today’s topic will likely serve as better conversation fodder than a more scholarly post – to the extent any of my posts can be described as “scholarly.”

As a blogger, this year I’m thankful for the lawyer who managed the impossible: multiple Was That Wrong? moments in a single disciplinary case.

Was That Wrong? is a semi-regular column on Ethical Grounds. The column features stories of the absurd & outrageous from the world of legal ethics and attorney discipline. My aim is to highlight misconduct that I hope you’ll instinctively avoid without needing me to convene a continuing legal education seminar that cautions you to do so.

The column is inspired by the “Red Dot” episode of Seinfeld. In the episode, George Costanza has sex in his office with a character known only as “the cleaning woman.”  His boss finds out.  Here’s their ensuing exchange :

(Scene) In the boss’ office.

  • Boss: I’m going to get right to the point. It has come to my attention that you and the cleaning woman have engaged in sexual intercourse on the desk in your office. Is that correct?
  • George: Who said that?
  • Boss: She did.
  • George: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, you know, cause I’ve worked in a lot of offices and I tell you people do that all the time.
  • Boss: You’re fired.
  • George: Well you didn’t have to say it like that.

The full script is HERE.  The scene is HERE.

Today’s column involves a lawyer suspended for 4 months by the Wisconsin Supreme Court.  The order was reported by the ABA Journal, the Legal Profession Blog, and the Milwaukee Journal Sentinel.

Someday I hope to launch a YouTube channel tied to this blog.  When I do, I’ll adapt Was That Wrong entries to the screen.  Here’s how I envision scripting today’s:

  • Supreme Court:  We’re going to get right to the point.  It’s come to our attention that you smuggled two toothbrushes and some red pepper to a client who was in jail.
  • Lawyer:  Who said that?
  • Supreme Court:  The guards found the toothbrushes and red pepper inside a legal file that was in a bag your brought to the client.  In jail, toothbrushes can be converted in shanks & red pepper made into pepper spray.
  • Supreme Court: It has also come to our attention that you utterly failed to communicate with a different client.
  • Lawyer:  Who said that?
  • Supreme Court: The client did.
  • Supreme Court: And, finally, it has come to our attention that at the hearing on your failure to communicate with the client, you argued that the client called your office phone instead of your cell phone and, in any event, that you had regularly e-mailed him.
  • Lawyer:  Yes.
  • Supreme Court: He didn’t have an e-mail account.
  • Lawyer: Was all of this wrong? Should I have not done any of it? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started practicing that that sort of thing was frowned upon, you know, cause I’ve worked in a lot of offices and I tell you people do this stuff all the time.
  • Supreme Court:  4 month suspension.
  • Lawyer:  Well you didn’t have to say it like that.

costanza

 

Malcolm & Monday’s Answers

Good morning!

Friday’s questions are HERE.  I can confirm that Dave Carpenter finished the Philadelphia Half Marathon – and ran it while wearing his firefighting gear.  Great job Dave!

Before I get to the answers, I’d be remiss not to mention the passing of Malcolm Young. I often include musical references in my blog posts, in particular in the #fiveforfriday legal ethics quizzes.

It’d be a violation of Rule 4.1 for me to tell you that I am a huge fan of AC/DC. However, it’s not a violation to state that I’m a huge fan of the Back in Black album.  Personally, I think the B-side is the best B-side of any rock album.  Also, the album played an important role in my music fandom.

Last night, I confirmed with the First Brother that Back in Black was the first album that either of us bought on our own.  Before snagging it at a flea market at our elementary school, we’d been confined to our parents’ albums (and 8-tracks).  I don’t think either of us will ever forget (or regret) learning every word to each of The Mamas & The Papas greatest hits.  Nevertheless, Back in Black marked the beginning of our passage to musical adulthood.

Malcolm – if there’s a bar wherever you are, have a drink on me.

acdc-back-in-black

Oh yeah, don’t forget to send me your votes for the top 3 novels that focus on the law, a lawyer, or lawyers!

Onto the answers!

Honor Roll

Answers

Question 1

Attorney called me with an inquiry. I listened, then said “your only duty under the Rules of Professional Conduct is to notify the sender that you received it.”

Most likely, then, Attorney called me to discuss the receipt of:

  • A.   A wire transfer.
  • B.   Information that Attorney knows was inadvertently sent or produced.  See, Rule. 4.4(b)
  • C.   A subpoena to testify about a former client.
  • D.  A request to deliver a former client’s file to a new attorney.

Question 2

By rule, two words have to be on a certain type of communication from lawyers.  What are the 2 words?

  • A.  “Advertising Material.”  See, Rule 7.3(c).
  • B.  “Of Counsel.”
  • C.   “Confidential Information.”
  • D.   “Privileged Information.”

Question 3

True or false: the rules prohibit a lawyer from serving as a director, officer or member of a legal services organization (other than the lawyer’s firm) that serves persons having interests adverse to a client of the lawyer.

False.  Rule 6.3.

Question 4

Lawyer represents Client.  Opposing Party is not represented by counsel.

Lawyer and Opposing Party negotiate a resolution that must be reduced to writing.  Lawyer prepares the document and presents it to Opposing Party for signature.  Opposing Party asks “what do you think it means if I sign this?”

Which is most accurate?

  • A.   Lawyer may not respond other than to say “I can’t give you any advice.”
  • B.   Lawyer must advise Opposing Party to contact an attorney for advice.
  • C.   Lawyer may not go through with the resolution until Opposing Party has been given a reasonable period of time to contact an attorney for advice.
  • D.  Lawyer may explain her own view of the meaning of the document, as well as her view of its underlying legal obligations.

Maybe this was poorly phrased.  But, “D’ is correct under the rule.  It’s Rule 4.3. The key langauge is in the final sentence of Comment [2]: “So long as the lawyer has explained that the lawyer represents and adverse party and is not representing the person, the lawyer may inform the person of the terms on which enter into an agreement or settle a matter, prepare documents that require the person’s signature and explain the lawyer’s own view of the meaning of the document or the lawyer’s view of the underlying legal obligations.” (emphasis added).

B is not correct.  The rule does not mandate Lawyer to advise Opposing Party to contact an attorney for legal advice. Rather, IF Lawyer gives any advice, the only advice she may give is to seek legal advice.

Question 5

Who am I?

In 2011 and 2014, I won the Emmy for Outstanding Actress in a Drama.  I won for a role in which I played a lawyer who, among other things, graduated at the top of her law school class despite a penchant for falling asleep in class.  In the very first episode, viewers learned the my husband, a state prosecutor, had been jailed for his part in a sex & corruption scandal.

But what would this question be without a connection to 1995?

Back then, I didn’t play a lawyer.  Rather, I played a nurse.  But even back then, I did it well.  In 1995, I won the Emmy for Outstanding Supporting Actress in a Drama.

Interestingly, in TV world, I didn’t have to move.  As both a nurse & lawyer, I worked in the same city.

Again, who am I?

Julianna Margulies.   In 2011 & 2014, I won for my role as Alicia Florrick on The Good Wife.  In 1995, I won for my role as Carol Hathaway on ER.

 

 

 

Five for Friday #95

Welcome to #95!

95 doesn’t remind me of the year.  Nor does it remind me of a movie, a band, a singer, or an athlete who wore the number.

For whatever reason, the first thing that jumps to mind when I think of 95 is how miserable I am whenever I’m driving down Interstate 95.  Whether driving to and from law school when I was at GW, or driving from D.C. to my dad’s & other points south, I’ve never liked it.  And one of my least favorite sections of I-95 is the part around Philly.  So,  naturally, as I contemplated the number 95 for this column, my thoughts soured.

But they picked up yesterday when I heard from a fellow lawyer — more on him later – who is heading to Philadelphia this weekend to run the Philadelphia Half Marathon. Folks, in my opinion, besides the Vermont City Marathon, which will always remain #1 in my heart, there’s no better marathon or half marathon than Philly.

For one, it’s usually perfect running weather – not too hot, not too cold.  For another, there’s an 8K on Saturday, with the half & full on Sunday. Most marathoners go for a short run the day before a race – might as well get a medal for doing so!  Also, besides being nice & flat, the course is a virtual run through history.  Check out some of the sites that runners pass along the way.  Finally, the marathon starts & finishes at the Philadelphia Museum of Art.

What’s this? Mike is writing about art museums?

Come on people, of course I am! I’m way more than pop culture & sports.

Ok, maybe I”m not.

Check out the picture on the marathon’s home page.  Recognize the museum now?

The Rocky Steps!

Rocky Steps

Anyhow, I’ve run Philly twice: the full in 2011, the half last year.  Here’s a close-up of my medal from 2011.  Check out the race motto:

Medal.jpg

Best:Time Of Your Life.

Very clever Philly! Even the italics & colon to make it look like a race result. For example, 3:28.25.  I remember chuckling at the slogan when I picked up my bib & shirt the day before the race. I wasn’t chuckling on race day itself.  T

Things went haywire somewhere around Mile 20.  I was overheated, dehydrated, exhausted and, for a few minutes, so confused that I wondered if I was lost.  That’s correct: surrounded by thousands of other runners all headed in the same direction as me – which entailed shuffling along a street lined by thousands of fans on each side — I momentarily thought I was lost!

When I came to my senses, I said to myself “Best of Time of Your Life my ass!!!”

Still, I continue to love to run.  It’s an important outlet.

Now, back to the lawyer who is running Philly this weekend.

A few weeks ago, I posted a blog in which I encouraged lawyers to take time to do non-lawyerly things.  Here’s what I wrote:

Winter is long.  Darkness can be tough.  And, as the numbers show, we’re a profession that struggles to cope with stress, anxiety, substance abuse and mental health issues.  We must promote wellness and work-life balance, and we must encourage lawyers to make time for what matters.  In other words, let’s focus on ensuring that light shines in our personal & professional lives.

I even asked for pictures of you doing non-lawyerly things, as proof that it’s possible to let the light shine in.

Dave Carpenter is a lawyer at Facey Goss McPhee and a member of the VBA Board of Managers.  He is also a firefighter and the chair of Orwell’s Volunteer Fire Department.  On Sunday, Dave is going to run the Philadelphia Half Marathon . . . in his firefighter gear!

He’s done it before:

Dave Carpenter 1

Dave Carpenter 2

Dave – congrats, good luck, and great example of #lawyerlight!

If any of you find yourself in the Philly area, make sure to check out Lucky’s Last Chance. I’m a fan of the one in Manayunk.  It’s right about mile 20 of the marathon.  Fantastic burgers.

Onto the quiz!

Rules

  • None.  Open book, open search engine, text-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
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

Attorney called me with an inquiry. I listened, then said “your only duty under the Rules of Professional Conduct is to notify the sender that you received it.”

Most likely, then, Attorney called me to discuss the receipt of:

  • A.   A wire transfer.
  • B.   Information that Attorney knows was inadvertently sent or produced.
  • C.   A subpoena to testify about a former client.
  • D.  A request to deliver a former client’s file to a new attorney.

Question 2

By rule, two words have to be on a certain type of communication from lawyers.  What are the 2 words?

  • A.  “Advertising Material.”
  • B.  “Of Counsel.”
  • C.   “Confidential Information.”
  • D.   “Privileged Information.”

Question 3

True or false: the rules prohibit a lawyer from serving as a director, officer or member of a legal services organization (other than the lawyer’s firm) that serves persons having interests adverse to a client of the lawyer.

Question 4

Lawyer represents Client.  Opposing Party is not represented by counsel.

Lawyer and Opposing Party negotiate a resolution that must be reduced to writing.  Lawyer prepares the document and presents it to Opposing Party for signature.  Opposing Party asks “what do you think it means if I sign this?”

Which is most accurate?

  • A.   Lawyer may not respond other than to say “I can’t give you any advice.”
  • B.   Lawyer must advise Opposing Party to contact an attorney for advice.
  • C.   Lawyer may not go through with the resolution until Opposing Party has been given a reasonable period of time to contact an attorney for advice.
  • D.  Lawyer may explain her own view of the meaning of the document, as well as her view of its underlying legal obligations.

Question 5

Who am I?

In 2011 and 2014, I won the Emmy for Outstanding Actress in a Drama.  I won for a role in which I played a lawyer who, among other things, graduated at the top of her law school class despite a penchant for falling asleep in class.  In the very first episode, viewers learned the my husband, a state prosecutor, had been jailed for his part in a sex & corruption scandal.

But what would this question be without a connection to 1995?

Back then, I didn’t play a lawyer.  Rather, I played a nurse.  But even back then, I did it well.  In 1995, I won the Emmy for Outstanding Supporting Actress in a Drama.

Interestling, in TV world, I didn’t have to move.  As both a nurse & lawyer, I worked in the same city.

Again, who am I?

 

 

 

 

 

 

 

Confidences, Conflicts & Electronically Stored Information

To answer ATCQ, this is the scenario:

  • Lawyer works at Firm and represents Kennedy.
  • No other attorney at Firm works on Kennedy’s matter.
  • Lawyer leaves Firm.
  • Kennedy decides to go with Lawyer.
  • Firm sends hard copy of Kennedy’s file to Lawyer.

Ok.  That’s the easy part and isn’t very complicated.  Since easy & uncomplicated make for boring blogs, let’s add this:

  • Lawyer represents Kennedy in matter against Brady.
  • Brady seeks to retain Firm.
  • Kennedy v. Brady is the same or substantially related to a matter in which Lawyer represented Kennedy while working at Firm.

Can Firm represent Brady?

The fact that the matter is the same or substantially related to a matter in which Lawyer represented Kennedy while working at Firm does not end the analysis.  Nor does the fact that Firm delivered the paper file to Lawyer.

Rule 1.10 applies.  Subsection (b) says:

  • “When a lawyer has terminated association with a firm, the firm is not thereafter prohibited from representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless:
    • (1) the matter is the same or substantially related to that in which the formally associated represented the client; and,
    • (2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter.”

In the hypo, Firm will argue that none of its lawyers has information protected by Rules 1.6 and 1.9(c) because (1) none of them worked on Kennedy matters; and, (2) Firm delivered the file when Lawyer left.

But do they?

What if an electronic version of Kennedy’s file (or a portion of thereof) remains on Firm’s servers?  If the information is “material” to the matter, does Firm “have” that information as contemplated by Rule 1.10(b)?

Here’s an opinion from New Jersey.  The answer is “maybe.”  Essentially,  the court said that Firm “has” the information if a remaining lawyer has actual knowledge of the information and has accessed substantive portions of the electronic file.  The court, however, indicated that limited access made to investigate a potential conflict is not necessarily disqualifying.

If you’re interested, give the opinion a read.  Also, to avoid this dilemma, it might be worth a self-assessment as to how your firm handles electronically stored information when clients follow a departing lawyer.

By the way, if you missed it yesterday, here are the results of the poll question: Who is on your Mt. Rushmore of U.S. Supreme Court justices?  The post includes this week’s question: your top 3 fiction novels focused on the law or a lawyer/lawyers.

Laptop-and-computer-file-folders

 

 

WSYW: SCOTUS Mt. Rushmore

Last week’s edition of What Say You Wednesday asked for your Mt. Rushmore  of U.S. Supreme Court justices.  The results are in.  Alphabetically:

Braindeis

Marshall

imarsth001p1

Warren

 

Others who received votes:  William Brennan, Benjamin Cardozo, William O. Douglas, Oliver Wendell Holmes, Jr., Anthony Kennedy, Sandra Day O’Connor, Clarence Thomas

This week’s #WSYW: your top 3 novels (fiction) focused on the law or a lawyer/lawyers.

Was That Wrong?

It’s been a while.

Was That Wrong? is a semi-regular column in which I focus on stories of the absurd & outrageous from the world of legal ethics and attorney discipline. My aim is to highlight misconduct that I hope you’ll instinctively avoid without needing me to convene a continuing legal education seminar that cautions you to do so.

For example, our most recent discussion of the the perils of representing BOTH plaintiff and defendant while sleeping with defendant.

Today, and as reported by the ABA Journal, The Indiana Lawyer, and NMI.com, we have the story of an Indiana prosecutor who has been suspended for 4 years for listening in on conversations between murder suspects and their lawyers.  The Indiana Supreme Court’s order is here.

Hint: it’s never a good sign for a lawyer when the Supreme Court’s very first statement in discussing the appropriate sanction is:

“There is, quite thankfully, scant precedent in our disciplinary annals for misconduct such as this.”

This column is inspired by the “Red Dot” episode of Seinfeld. In the episode, George Costanza has sex in his office with a character known only as “the cleaning woman.”  His boss finds out.  Here’s their ensuing exchange :

(Scene) In the boss’ office.

  • Boss: I’m going to get right to the point. It has come to my attention that you and the cleaning woman have engaged in sexual intercourse on the desk in your office. Is that correct?
  • George: Who said that?
  • Boss: She did.
  • George: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, you know, cause I’ve worked in a lot of offices and I tell you people do that all the time.
  • Boss: You’re fired.
  • George: Well you didn’t have to say it like that.

The full script is HERE.  The scene is HERE.

Someday I hope to launch a YouTube channel tied to this blog.  When I do, I’ll adapt Was That Wrong entries to the screen.  Here’s how I envision scripting today’s:

  • Supreme Court: We’re going to get right to the point. It has come to our attention that, as a criminal prosecutor, you used technology to listen in on privileged conversations between suspects and their lawyers.  Is that correct?
  • Lawyer:  Who said that?
  • Supreme Court:  You did.  So did police chief who tried to tell you it was wrong.
  • Lawyer: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started practicing that that sort of thing was frowned upon, you know, cause I’ve worked in a lot of offices and I tell you people do that all the time.
  • Supreme Court:  4 year suspension.
  • Lawyer:  Well you didn’t have to say it like that.

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

Here are the previous entries in Was That Wrong?

costanza

Five for Friday 94: Basketball & O.J.

Welcome to #94.

Before I get to 94, don’t forget 4.  As in, who are the 4 on your Mt. Rushmore of US Supreme Court justices?  Some great responses so far!

Back to 94.

I’m a basketball guy and, to me, 94 is a basketball number.  For one thing, a regulation court is 94 feet long.  For another, in my eternal quest to score 100 points in a single game, I usually ended up somewhere around 94.  With “somewhere around 94” meaning “points still to score to get to 100.”   Semantics.

Furthermore, most of you know that this blog focuses on the law, with doses of sports & pop culture. This is particularly true of the #fiveforfriday column.

I’m not sure there’s a year in which the intersection of the law, sports, and pop culture had a more profound impact on American society than 1994.

To the extent they’re remembered at all, the 1994 NBA Finals aren’t remembered for much to do with basketball.  No, I’d be willing to bet that they’re best remembered for one thing:

The OJ chase.

Game 5 of the 1994 NBA championship tipped off on June 17, 1994.  The New York Knicks hosted the Houston Rockets at Madison Square Garden. I’ll never forget it.  Earlier that day, my brother and I had driven to Bradford for our grandfather’s funeral.  We got back to South Burlington just in time to watch the game at the same place we watched every other big (and not so big) game back then: the bar at the Ground Round on Williston Road, just around the corner from where we’d grown up.

We didn’t watch the game.  Or maybe we watched a little bit of it, I don’t really recall.  I just remember that, at some point, the bar switched to coverage of the “chase.”  We stayed.  Enthralled.

I won’t even begin to try to describe the night. I can’t do it justice. To jog your memory, a simple Google search returns plenty of retrospectives of the event.  Suffice to say, I’ve watched a ton of basketball.  There are only 2 NBA games I remember exactly where I watched.  One is the OJ game.

For those of you too young to remember, I’m hard-pressed to imagine today’s equivalent of the chase. Here’s the best I can do.

In 1994, OJ was a celebrity.  He’d starred in commercials for years, and had made memorable appearances in movies. He was in the NFL Hall of Fame.  He was 25 years removed from being the #1 pick in the NFL draft after a decorated college career that included being named an All-American and winning the Heisman Trophy as the nation’s most outstanding player.

Today, Shaquille O’Neal is a celebrity. He’s starred in commercials for years, and has made memorable appearances in movies.  He’s in the NBA Hall of Fame.  He is 25 years removed from being the #1 pick in the NBA draft after a decorated college career that included being named an All-American and winning the Rupp Trophy as the nation’s most outstanding player.

So, imagine:

  • It’d be like watching last season’s New England-Atlanta Super Bowl, only to have the game interrupted by coverage of the police “chasing” Shaq to arrest him for a double-murder,
  • as a former teammate drove him around for hours,
  • while Shaq streamed the entire incident via Facebook Live,
  • as the rest of us stopped everything we were doing & caused the nation’s wireless networks to melt.

The chase eventually gave way to a trial, the impact of which continues to reverberate today.  Even ignoring the social impact – or maybe because of the social impact – I don’t know of a trial so fixed in our collective memory.

More than 20 years later, I’m guessing that a huge number of Americans over the age of 35 can still name most of the key players – the judge, the prosecutors, the defense team, and multiple witnesses – without even having to think very hard.  That never happens.  I mean, I don’t remember a single witness I called in my very first jury trial and it usually takes me a few minutes to remember whether Judge Meaker or Judge Jenkins presided!!  Also, is there a more widely known quote from any closing argument in history?

Finally, of the many pop culture aspects of the chase, one fascinates me: the events of the day introduced the world to the Kardashians.

Hours before the chase, and long before we’d meet his wife, kids, and his kids’ half-sisters, Attorney Robert Kardashian held a press conference.  It started shortly after his client, OJ, failed to surrender by an established deadline. Kardashian read aloud a letter from OJ.  Many interpreted it as OJ’s suicide note.  Talk about reality tv.

Actually, maybe the chase and subsequent trial qualify as the original reality tv.  Lives were taken, lost, ruined, destroyed, and forever altered.  And we watched it happen.

94.  A bizarre, surreal, and historic collision of law, sports, and pop culture.

If you’re interested, American Crime Story: The People v OJ Simpson dramatizes the entire case, including the chase. It won multiple Emmys and Golden Globes.

Dream Team

Onto the quiz.

Rules

  • None.  Open book, open search engine, text-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
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

There is a rule that links an attorney’s duty of diligence to:

  • A.  Promptness
  • B.  Thoroughness
  • C.  Preparation
  • D.  Skill

Question 2

For the purposes of Vermont’s rules, which is different from the others:

  • A.  A check drawn on the IORTA of a realtor licensed in Vermont
  • B.  A check drawn on the IOLTA of a lawyer licensed in Vermont
  • C.  A check in the amount of $2,500 drawn on a client’s personal checking account
  • D.  A check in the amount of $500,001 issued by an insurance company that is licensed to do business in Vermont

Question 3

Attorney called me with an inquiry.  I listened, then replied:

“For it to be okay, 3 things have to happen.  (1) It has to be in proportion to services you render, or, if not, you have to agree to assume joint responsiblity for the representation; (2) the client has agree and confirm the agreement in writing; and, (3) the total has to be reasonable.”

What did Attorney call to discuss?

Question 4

There is a rule that prohibits a lawyer from stating a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused.  It applies:

  • A.   In trial
  • B.   Only during closing arguments
  • C.   Only during opening statements
  • D.   During closing arguments AND to statements made to the press

Question 5 – Two parts:

In real life, O.J.’s attorney, Johnny Cochran, argued “if it doesn’t fit, you must acquit.”  He was referring to the so-called “bloody gloves.”

Part 1:

Jackie Chiles is a fictional attorney who regularly appeared on Seinfeld.  The character is a parody of Johnnie Cochran.  In the episode “The Caddy,” Chiles represented Kramer in a suit against Sue Ellen Mischke.  Kramer alleged that Mischke’s attire, while walking down the street, so distracted him as to cause him to get into an accident.  Chiles’ skillful and eminently competent cross-examination of Jerry Seinfeld delivered Kramer to the brink of a courtroom victory, only to have Kramer ruin it.  Against Chiles’ advice, Kramer took his golf caddy’s advice and asked Mischke to try on the piece of clothing that, allegedly, had distracted Kramer and caused the accident.  She tried it on, and it didn’t fit.  So, Kramer lost.

What was the piece of clothing?

Part 2:

In an episode of South Park, Chef sued a record company for harassment.  The record company hired a cartoon version of Johnnie Cochran.  During his closing argument, cartoon Cochran inexplicably asked the jury to consider why a character from a famous series of movies would live on the planet Endor.  He argued: “ladies and gentlemen, it does not make sense! If _____________ lives on Endor, you must acquit!! The defense rests.”

The movie character is 8 feet tall and has a one-word name.  His co-pilot and other friends associated with the rebellion often use a shortened-version of the name. Fill in the blank with the movie character’s name.

 

 

TBT: Alternative Litigation Financing

In this week’s version of Throwback Thursday, I’m re-running this post on Alternative Litigation Financing.  From a rules perspective, I don’t have any particular interest in the topic. I’m reprinting it for 2 reasons.

First, the not-so-important reason.  Oddly, the post is this blog’s most-visited. Here’s a picture of my 2017 stats.  The most visited page is the home page – something you get to just by going to the blog, and a page that changes with each new post.  The post on Alternative Litigation Financing is the most-visited page that you actually have to seek out.

ALF 2017

Not surprisingly, the post wasn’t exactly an instant classic.  I posted it in December 2016. By and large, it went unread before it’s popularity inexplicably spiked in April.  It has remained popular ever since.  Here’s a picture of the post’s monthly visits:

ALF Monthly

The post isn’t tagged.  Yet, “ALF” must be a relatively common search term that drives visitors to this site.  I have a feeling they aren’t looking for legal ethics or a post about the tv show.

By the way, don’t worry – I can’t tell which posts you read.  I pay for the free version of WordPress, which means I can only determine whether some unidentified person or bot (dare we say ALF?) visited a post.

Here’s the other reason that the original post interests me.  An impetus behind the original post was to convey that we do not (and should not) have to evaluate every new thing for compliance with the rules.  What do I mean by that? Let me tell you.

It happens most often with technology.  As a profession, we went through the exercise EVERY SINGLE TIME technology provided a new means of transmitting and storing client information. Is it ok to communicate by fax machine? What about a car phone? Are cell phones ethical? Email must be a violation, right? Can I text clients? Is it okay to use cloud storage?

Fortunately, over the past few years, bar associations and regulators have recognized the folly in such an approach. A better approach is to establish the principle, then apply the principle to whatever’s next.  For example: lawyers have a duty to take reasonable precautions to prevent unauthorized access to, or inadvertent disclosure of, information related to the representation of a client.  Boom!  There it is.  Now, when whatever is next arrives, you’ll know.

Same thing with alternative litigation financing.  Yes, it’s new and different. However, for almost as long as lawyers have existed, they’ve taken cases in which payment is made by someone other than the client. We have a principle that applies in that situation: the payor cannot interfere with the lawyer’s independent judgment and is not entitled to information about the matter unless the client consents.  That principle applies when a parent is paying for kid’s DUI, as well as it applies when plaintiff’s attorney is using crowd-funding or another source of ALF to finance litigation.

The end.

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

Again, the post is here.  For the click averse, here’s the original post:

Yes, my columns often include references to sports, music, movies, and TV.

No, this column is not about this Alien Life Form and his tv show:

alf

Rather, this post is about Alternative Litigation Financing.

Earlier this year, I praised an advisory ethics opinion in which the Philadelphia Bar Association concluded that crowd funding litigation is not necessarily unethical.  Crowd funding is an alternative method of financing many things, including litigation.

Last week, the ABA’s Law Practice Today blog ran a piece on Why Alternative Litigation Financing is Poised to Disrupt Litigation.  It’s an interesting post that raises issues related to legal ethics, access to legal services, access to justice and, in a way, tech competence. It also gives me an excuse to use the word “champetry” for, perhaps, the first time since law school.

As I wrote in my post on the Philadelphia advisory opinion, the fact that something is new or different does not render it unethical.  As ALF platforms continue to grow in popularity, remember that it is not a platform or technology that poses an ethics risk – – it’s the lawyer who uses the platform or technology.  Indeed, the post in Law Practice Today quotes from a white paper that the ABA’s Commission on Ethics 20/20 issued in 2012:

  • “[this]Report should not be interpreted as suggesting alternative litigation finance raises novel professional responsibilities, since many of the same issues…arise whenever a third party has a financial interest in the outcome of the client’s litigation. A lawyer must always exercise independent professional judgment on behalf of a client… “

In other words, ALF is permissible as long a lawyer doesn’t violate any other rules while representing a client who uses ALF to pay for the lawyer’s services.

A few rules more likely to arise than others:

  • Rule 5.4(c) states that a “lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.”
  • Rule 1.8(f) prohibits a lawyer from accepting “compensation from one other than the client unless:
    • (1) the client gives informed consent;
    • (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and
    • (3) information relating to representation of a client is protected as required by Rule 1.6.

Also, I’d suggest that having read this post, Rule 1.1 might come into play.  The rule requires lawyers to provide competent representation to their clients.  Arguably, the duty of competence includes advising a client who lacks resources on alternative sources of litigation financing.  Is it a stretch to say that the failure to do so is unethical?  Yes.  But what would it hurt to keep a few of the ALF providers in mind?  The post on Law Practice Today lists and links to 4 of them.

In any event, I urge you not brand crowd funding and other forms of ALF as unethical for no other reason than “that’s not how we’ve done it in the past.” Is it new?  Yes. Is it different? Yes.

But, it’s not lost on me that one of the cases cited in the post on Law Practice Today involved a group of college students who turned to crowd funding to finance litigation that they otherwise could not have afforded.  You too, some of my loyal readers, were once on the cutting edge, doing things that left more senior lawyers fretting for their licenses: like using fax machines.

Attorney Stephen Embry authored the post that appears on Law Practice Today.  In it, he lays out some of the concerns with ALF, but then provides strong counter-arguments to those concerns.  Above all, his final paragraph bears keeping in mind:

  • “Balanced against the risks is the upside. In a world where over 60% of small businesses who experienced a legal event in the past two years report not hiring a lawyer (LegalShield Survey Report ), where 80% of the legal needs of the poor and middle class go unmet (See Legal Service Report)and where some 40% of law school graduates can’t find full time jobs (ABA 2015 Report) anything that tears down barriers to justice and allows an underserved population to be served may be worth the risk.”