Monday Morning Answers

Must be I was in a bad mood Friday morning.  Not many entries this week, and many of those who entered mentioned that the questions were difficult.  Given the time of year, we’ll say that it was the mid-term.  Things will might ease up a bit in the next few weeks.

Per usual, the Honor Roll, followed by the answers.


Perfect Score



Question 1

Yesterday, a lawyer and I discussed whether funds that are in the lawyer’s possession are being held “in connection with a representation.”  It is most likely, then, that the lawyer called me to ask whether:

  • A.   the trust accounting rules apply; Per Rule 1.15, funds held “in connection with a representation” must be held in accordance with Rulea 1.15A and 1.15B.
  • B.   she may disburse the funds in reliance upon a deposit that has not cleared & does not yet constitute “collected funds”
  • C.   the funds are subject to trustee process
  • D.   “referral fees” are allowed in Vermont

Question 2

By rule, a lawyer currently serving as a public employee may not negotiate for private employment with any person who is involved as a party or an attorney for a party in a matter in which the lawyer is participating personally & substantially.

There is an exception.  It is for a lawyer who is serving as a law clerk to a judge or adjudicative officer.  Rule 1.12(b).

Fill in the blank. Hint: it’s not just one word.

Question 3

Lawyer is representing Business Owner in a civil suit filed by Smith.

You’re bar counsel for a day.  Lawyer calls and asks “is it okay if I tell Employee of Business Owner to refrain from voluntarily giving information to Smith’s attorney?”

What say ye?

  • A.   that’s not a violation of Vermont’s rules;  The key here is that it’s an employee.  See, Rule 3.4(f), Comment [4].
  • B.   it’s okay since it’s civil case. It wouldn’t be okay if you were representing Business Owner in a criminal case.
  • C.   it’d be okay if you were defending Business Owner against criminal charges, but it’s not okay in a civil case.
  • D.  the only advice you can give to Employee is the advice to seek counsel

Question 4

This happened on Wednesday.

Attorney called me with an inquiry. I listened. Then, I responded by saying:

  • “The rule draws a distinction between things like phone calls & real-time communications, and things like letters & emails.  The former are subject to more restrictions than the latter.”

Given that my responses to inquiries are based on the Vermont Rules of Professional Conduct, what was the most likely topic of this inquiry?

Direct Contact with Prospective Clients.  Rule 7.3

Question 5

Irving Kanarek represented a notorious client in a criminal trial that began in 1971.  The client was charged with conspiracy to commit multiple murders.  During the trial, Kanarek:

  • objected 9 times during the prosecutor’s opening statement;
  • was found in contempt 4 times;
  • spent 2 nights in jail for contempt;
  • gave a 7 day closing argument; and
  • had the judge tell him he was “totally without scruples, ethics, and professional responsibility.”

Who was Kanarek’s notorious client?



As my brother correctly noted, in a different case, Kanarek objected when a witness was asked his name.  The reason?  Hearsay, in that the witness only knew his name because his mother had told him.