Fantasy SCOTUS

I’m in a fantasy football league.  I didn’t even make the playoffs this year, mainly because I never started the right players my quarterbacks stunk.  I’m sure some of you are in fantasy sports leagues, whether football, basketball, or baseball.

But who knew there’s a fantasy league for Supreme Court cases?  I certainly didn’t.  Until today, when I read Robert Ambrogi’s LawSites blog on the impact that Justice Scalia’s death is having on Fantasy SCOTUS.  You can check it out HERE.

This provides a nice segue to introduce The Shamrock.  The Shamrock is my NCAA tournament pool. It’s far different from the typical “brackets.”  This year, a portion of each entry fee will go to the Vermont Bar Foundation’s Poverty Law Fellowship.  For more on The Shamrock, go HERE, then click on the “Rules” tab.

Monday Morning Answers

Happy Presidents’ Day!  Interesting tidbit (or maybe not):  the first President to have a law degree?  Rutherford B. Hayes.  Several of his presidential predecessors were lawyers, but none went to law school.

Ok, if you want to take Friday’s quiz, go HERE.  Spoiler alert: the answers immediately follow the list of those who received honors this week.

Oh, and if you missed my post on the perils of using “cc” and “bcc” in emails, it’s HERE.

PERFECT SCORES

• Andrew Delaney, Martin & Associates
• Matthew Little, Law Offices of Matthew Little
• Hal Miller, First American
• Josh Stern, Law Office Study Candidate, Massucco Law

HONORS

• Lauri Fisher, Kenney & Fisher
• Mary Parent, Downs Rachlin Martin
• Brendan Scherer, Vermont Law School

ANSWERS

Question 1

You represent co-plaintiffs in a civil suit.  The defense proposes an aggregate settlement of your clients’ claims. By rule, you shall not participate in the settlement unless each client:

• a. Gives informed consent
• b. Gives informed consent, confirmed in writing.  Rule 1.8(g).
• c. Is given a reasonable opportunity to seek independent legal advice
• d.  A&C

Question 2

True or False? The rule on aggregate settlements applies only in civil cases.  In criminal cases, a lawyer may not participate in an aggregate agreement as to guilty or nolo pleas.

FALSE – Rule 1.8(g)

Question 3

By rule, what is it that a lawyer may not do with an unrepresented former client, unless the former client is given written notice of the desirability of seeking independent legal advice, and a reasonable opportunity to do so?

Settle a claim or potential claim for malpractice.  Rule 1.8(h)

Question 4

Lawyer called me to ask if I thought he had a conflict of interest that prohibited Lawyer from representing Wife in a post-judgment child support dispute with Husband. Lawyer explained why he was asking.  I responded by telling Lawyer that it turned on whether his prior particapation in the matter was “personal and substantial.”  If so, I added, he’d need both Wife AND Husband’s informed consent, confirmed in writing.

Under these facts, Lawyer’s prior participation in the matter was most likely as:

• A.  a fact witness in the couple’s contested divorce hearing
• B.  the mediator when the couple attempted to mediate the divorce.  Rule 1.12(a)
• C.  Husband’s attorney in a criminal case that Wife argues warrants a modification of the child support order
•  D.  a GAL for the couple’s son in the divorce

Question 5

 

Five for Friday: #12

So, 12 hours ago, this was my view:

I was standing on the pier in Hermosa Beach.  I’d just biked to Santa Monica and back, and was about to take a final swim before heading to LAX.

In lawyer ethics terms, one might argue that my subsequent decision to board the flight adversely reflects on my fitness. Evidence supporting that argument? A simple compare and contrast:

At least Tuesday looks good.  Hal Miller, I bet you’re jealous!

1. This is an open book quiz.
2. You should try it!
3. Email answers to michael.kennedy@vermont.gov
4. Encourage colleagues to do the same.

Question 1

You represent co-plaintiffs in a civil suit.  The defense proposes an aggregate settlement of your clients’ claims. By rule, you shall not participate in the settlement unless each client:

• a. Gives informed consent
• b. Gives informed consent, confirmed in writing
• c. Is given a reasonable opportunity to seek independent legal advice
• d.  A&C

Question 2

True or False? The rule on aggregate settlements applies only in civil cases.  In criminal cases, a lawyer may not participate in an aggregate agreement as to guilty or nolo pleas.

Question 3

By rule, what is it that a lawyer may not do with an unrepresented former client, unless the former client is given written notice of the desirability of seeking independent legal advice, and a reasonable opportunity to do so?

Question 4

Lawyer called me to ask if I thought he had a conflict of interest that prohibited Lawyer from representing Wife in a post-judgment child support dispute with Husband. Lawyer explained why he was asking.  I responded by telling Lawyer that it turned on whether his prior particapation in the matter was “personal and substantial.”  If so, I added, he’d need both Wife AND Husband’s informed consent, confirmed in writing.

Under these facts, Lawyer’s prior participation in the matter was most likely as:

• A.  a fact witness in the couple’s contested divorce hearing
• B.  the mediator when the couple attempted to mediate the divorce
• C.  Husband’s attorney in a criminal case that Wife argues warrants a modification of the child support order
•  D.  a GAL for the couple’s son in the divorce

 

 

 

 

Copy Cats

Lawyers often tell me that they do not like this scenario:

• Lawyer represents Plaintiff
• Attorney represents Defendant
• Lawyer emails Attorney, and cc’s Plaintiff.

I also hear this:

• Attorney blind copies Defendant on emails to Lawyer

Here is the latest on the topic.

In December, the New York State Bar Association issued an advisory ethics opinion giving the green light to blind copying a client on an email sent to opposing counsel, even over opposing counsel’s objection.  However, the committee cautioned that “blind copying” the client is not the best option, suggesting instead that lawyers forward the client an email that has already been sent to opposing counsel.  The opinion is HERE.

For more, check out this post in which Sam Glover at Lawyerist cautions against copying clients on emails.

Finally, here’s Rule 4.2   Some concerns I have about the initial hypo:

• Arguably, Lawyer has put Plaintiff at risk of mistakenly “replying-all” in an email meant only for Lawyer.
• Similarly, some have argued that Lawyer has consented to Attorney replying directly to Plaintiff.  To date, there is no authority supporting that position in Vermont.
• Finally, what if Plaintiff intentionally replies to Attorney? That is, skips her own lawyer and goes directly to opposing counsel?  Attorney would need to heed Comment 3 of Rule 4.2.

Benign Neglect

I’ll say this: if you’re only going to run one marathon in your life, you could do a lot worse than picking the Surf City Marathon in Huntington Beach, CA.  Flat, fast, amazing views. And, if in San Diego, get over to Ocean Beach and check out Hodad’s.

I’ll also say this: the beach life/surf vibe isn’t conducive to blogging on legal ethics.  That’s why I’m just now getting around to posting the answers to last week’s #FiveforFriday quiz.  Hence the title of this post.

Want to take the quiz before seeing the answers? Go HERE.

EPIC (Perfect score)

• Matt Little, Law Office of Matthew Little
• Lauri Fisher, Kenney & Fisher

TUBULAR

• Matt Anderson, Pratt Vreeland Kennelly Martin & White
• Robert Grundstein
• Brendan Scherer, Vermont Law School
• Allison Wannop, Dinse Knapp McAndrew

ANSWERS

Question 1

Tomorrow, the National Organization Bar Counsel’s mid-winter meeting will include a seminar on succession planning.  Vermont’s Rules of Professional Conduct do not require succession plans. However, the Comment and Reporter’s Notes to one of the rules suggest that the duty imposed by the rule includes a duty to have a succession plan.  It’s the rule that imposes a duty of:

• A.   Reasonable communication with a client
• B.   Competent representation of a client
• C.   Diligent and prompt representation on behalf of a client.  See, Rule 1.3, Comment [5].
• D.   Withdrawal when continued representation is unfeasible

Question 2

Today’s seminars include one on “Online Reputation Management.” To date, disciplinary sanctions in cases involving online reputation management have most often followed violations of the rule on:

• A.    Client confidences, • In re the Matter of David J. Steele, Ind. Supreme Court No. 49S00-1509-DI-527 (Ind. 2015) (among other violations, Indiana lawyer disbarred for, by his own description, “actively manipulate[ing his] Avvo reviews by monetarily incentivizing positive reviews, and punishing clients who wr[o]te negative reviews by publicly exposing confidential information about them.” Responses to the negative reviews included numerous false statements)
• • People v. James C. Underhill Jr., 2015 WL 4944102 (Colo. 2015) (Colorado lawyer suspended for 18 months for, among other violations, disclosing confidential information in response to internet complaints about his fees and services)
• • In the Matter of Tsamis, Ill. Att’y Registration and Disciplinary Comm’n, Comm’n No. 2013PR00095 (Ill. 2014) (Chicago lawyer reprimanded for revealing confidential information when responding to a negative review on the legal information website Avvo)
• • In the Matter of Margrett A. Skinner, 295 Ga. 217, 758 S.E.2d 788 (Ga. 2014) (Georgia lawyer publicly reprimanded for improper disclosures in response to negative online review)
•  • In re Quillian, 20 DB Rptr 288 (Or. 2006) (Oregon lawyer suspended for 90 days for publishing confidential information about former client in listserv post)
• B.    Attorney Advertising
• C.     Honesty & Candor
• D.    Ex parte contacts with courts and jurors

Question 3

You settle a case on behalf of a client.  Proceeds are wired to your trust account, you disburse them, and everyone goes their merry way.  Your client is so pleased that she uses the “comment” feature on your firm’s website to extol your virtues.  You post a response “thanks! it was great working with you.”  What do Vermont’s ethics rules require you to keep for six years from the termination of your representation of this client?

• A.  Records of funds you held for the client while representing her; Rule 1.15(a)(1)
• B.  The client’s file
• C.  A “copy” of your website because it’s an advertisement
• D.  A & B.  Copies of ads only need to be kept for 2 years.

Question 4

The rules suggest that government attorneys may have “authority that ordinarily reposes with a client in a private client-lawyer relationship.”  Then, there is language citing two specific decisions that a government lawyer may have the authority to make, but that an attorney in a private client-lawyer relationship does not.”  For 1 point each, identify the two decisions.

• Whether to accept settlement and
• Whether to appeal.   See, Scope {18}

Question 5:

Cam Newton went to Auburn.  Peyton Manning went to Tennessee.  Neither went to law school.

Only one person has won the Super Bowl as the starting quarterback and graduated from law school.  Who is he?

Steve Young of the San Franscisco 49’ers.  He was the MVP of Super Bowl XXIX and graduated from BYU Law School in 1994.  Yes, he attended law school while playing in the NFL.  He worked out a special academic schedule with BYU.

Five for Friday #11

Here we go, #fiveforfriday is live from San Diego – seminars end tomorrow and then I’m on to Huntington Beach for Sunday’s Surf City Marathon.  But this quiz is only 5 questions, not 26.2.  So, enter!  And please forward to colleagues and ask them to do the same!

Rules:  none.   Open book, open search engine.  Exception – question 5.

Email responses to michael.kennedy@vermont.gov

Question 1

Tomorrow, the National Organization Bar Counsel’s mid-winter meeting will include a seminar on succession planning.  Vermont’s Rules of Professional Conduct do not require succession plans. However, the Comment and Reporter’s Notes to one of the rules suggest that the duty imposed by the rule includes a duty to have a succession plan.  It’s the rule that imposes a duty of:

• A.   Reasonable communication with a client
• B.   Competent representation of a client
• C.   Diligent and prompt representation on behalf of a client
• D.   Withdrawal when continued representation is unfeasible

Question 2

Today’s seminars include one on “Online Reputation Management.” To date, disciplinary sanctions in cases involving online reputation management have most often followed violations of the rule on:

• A.    Client confidences
• B.    Attorney Advertising
• C.     Honesty & Candor
• D.    Ex parte contacts with courts and jurors

Question 3

You settle a case on behalf of a client.  Proceeds are wired to your trust account, you disburse them, and everyone goes their merry way.  Your client is so pleased that she uses the “comment” feature on your firm’s website to extol your virtues.  You post a response “thanks! it was great working with you.”  What do Vermont’s ethics rules require you to keep for six years from the termination of your representation of this client?

• A.  Records of funds you held for the client while representing her
• B.  The client’s file
• C.  A “copy” of your website because it’s an advertisement
• D.  A & B.  Copies of ads only need to be kept for 2 years.

Question 4

The rules suggest that government attorneys may have “authority that ordinarily reposes with a client in a private client-lawyer relationship.”  Then, there is language citing two specific decisions that a government lawyer may have the authority to make, but that an attorney in a private client-lawyer relationship does not.”  For 1 point each, identify the two decisions.

• Whether to : _________________, and
• Whether to : _________________.

Question 5:

Cam Newton went to Auburn.  Peyton Manning went to Tennessee.  Neither went to law school.

Only one person has won the Super Bowl as the starting quarterback and graduated from law school.  Who is he?

 

 

Hot T(r)opics in Ethics

I’m in San Diego for the mid-year meeting of the National Organization of Bar Counsel.  No Ron Burgandy sightings yet, but lots of great info to share with you.

The conference opened yesterday and included the traditional “roll call.” One representative from each jurisdiction gets 2 or 3 minutes to update the group on trends/hot topics in that jurisdiction.  A nugget:

• In Vermont, FY 2015 saw both a record number of inquiries of bar counsel and a 10 year low in the number of complaints filed & referred to disciplinary counsel. FY 16 is shaping us as a continuation: as of January 31, inquiries are up 35%, while complaints are down 18.5%.  These numbers are consistent with what other jurisdictions reported.  A theory why? More and more states are focusing resources on preventing misconduct thru education & ethics hotlines.  I’m looking forward to today’s seminar on “A New Model of Regulation:  Proactive Management Based Regulation.”  Sounds complex, but it’s not.  It’s the old adage “an ounce of prevention is worth a  pound of cure.”  Vermont’s Professional Responsibility Board endorses this approach and I hope to learn more about it while I’m here.
• A great seminar yesterday on the changes that are coming to the legal profession.  Who is part of it & how it’s regulated.  In 2014, NOBC president Tracy Kepler started from this premise: “Globalization, new technologies, concerns over access to justice, and other disruptions to traditional regulatory and professional systems have changed the ways legal services are accessed and delivered in the United States and abroad.”  She tasked an ad hoc committee to gather data that “will enable member jurisdictions to evaluate the regulatory impacts and challenges posed by recent developments and to develop responses and local initiatives that will ensure the continued protection of the public and integrity of the profession.”  Here are the results:  (note – the NOBC has not taken a position on the issues.)
• Alternative Business Structures: should nonlawyers be allowed to have ownership interests in law firms?  what about lawyers and nonlawyers working together in a business entity that provides legal and non-legal services?  For more, go HERE.
• Alternative Licensure: should courts authorize nonlawyers to provide legal services that, for now, only lawyers are authorized to provide?  For more, go HERE.
• Entity Regulation: in Vermont’s current model, the Court and the PRB have jurisdiction over lawyers. There is no present ability to regulate (or sanction) a firm, and certainly no jurisdiction over nonlawyers within a firm.  Should that change?  For more, go HERE.
• International Cooperation (Reciprocity): as borders blur and lawyers practice in multiple states and nations, how should courts, bar associations, and regulators react?  For more, go HERE.

That’s all for now.  Join me tomorrow for another #FiveforFriday ethics quiz, perhaps with a West Coast or Super Bowl theme.  In the meantime, not a bad view from the hotel:

Monday Morning QB’ing: #FiveforFriday Answers

Thanks to everyone who entered week 10 of the #FiveforFriday bonzana! For those of you who didn’t, here’s another reason to enter in the future:  one entrant reported coming across the answer to an issue he’d been dealing with at work while researching the answers to the quiz.  That’s part of my goal!

Lots of really good scores this week. I guess I owed you that after hearing that the preceding weeks were a bit difficult.

If you want to read the questions before I post the answers, go HERE

HONOR ROLL

Perfect Score

• Amy Butler                              Law Office of Amy Butler
• Robert Grundstein
• Andrew Delaney                      Martin & Associates
• Lon McClintock                       McClintock Law Office
• Susan McManus                      Office of the Bennington County Public Defender
• Michael Tarrant                       Tarrant, Gillies, & Richardson
• Caryn Waxman                        Barber & Waxman

At least 8 points (* = perfect on the ethics questions)

• Dan Barrett                               ACLU of Connecticut
• Samantha Lednicky                 Downs Rachlin Martin
• Matthew Little                         Law Office of Matthew Little
• Hal Miller *                              First American
• Mary Parent*                           Downs Rachlin Martin
• Allison Wannop*                     Dinse Knapp McAndrew

 

THE ANSWERS

QUESTION 1

Last week, in a ruling that the Wall Street Journal reported is believed to be the first of its kind involving a defendant who is located within the United States, a federal judge approved service by FACEBOOK.   (I understand service by Facebook may have happened before, but the article referred to in the question is HERE)

QUESTION 2

Lawyer called me with an inquiry. I listened, then asked: “do you think it’s going to cause death or substantial bodily harm?”   What did the lawyer call to talk about?

Whether Lawyer was required to disclose client’s intent to commit a crime.  See, Rule 1.6(b)(1).

QUESTION 3

Attorney called me with an inquiry. I listened, then said: “the rule says it’s preferable that it be in writing, but doesn’t require a writing.”   What did Attorney ask whether needs to be reduced to writing?

Scope of representation and basis & rate of fee.  Rule 1.5(b).

QUESTION 4:

By rule, in trial, there are four (4) things about which a lawyer may not state a personal opinion.   1 point for each that you name.

Justness of a cause, credibility of a witness, culpability of a civil litigant, guilt or innocence of an accuse.  Rule 3.4(e).

QUESTION 5:

Alan and Denny were fictional lawyers who practiced together for years.  Each had a questionable sense of attorney ethics.  Last we saw them, they married.  Among the reasons that they decided to marry: to invoke the spousal privilege if Denny was arrested and Alan asked to testify against him.

• Alan Shore & Denny Crane were on Boston Legal and were married by (an actor portraying) Justice Scalia