Five For Friday #22

If you have the time, before or after the quiz, please take a look at this post in the ABA Journal. I’m going to blog about it in greater detail this weekend or early next week.  Specifically, I’m going to ask: should the PRB recommend that the Court amend the Rules of Professional Conduct so as to allow nonlawyers to have ownership interests in law firms?

Also, PLEASE, take the time to email Kevin Ryan.  Today is Kevin’s final day as the VBA’s Director of Education and Communications. He recently accepted the position as Executive Director of the Monroe (NY) County Bar Association.  Kevin is my friend and, besides, has been a HUGE supporter of the Professional Responsibility Program.  He has done a fantastic job educating lawyers on issues related to legal ethics and professional responsibility.  Kevin – thank you, I’ll miss you, I wish you the best.

Now, for the quiz.

• there’s no such thing as “cheating” on this quiz. use any resource available to you.  exception: question 5.
• email answers to michael.kennedy@vermont.gov
• encourage friends, colleagues, co-workers to enter

Question 1

Several rules require a lawyer to obtain a client’s “informed consent, confirmed in writing.”  Which is most accurate?

• A.  In situations that require a client’s informed consent, a lawyer may not act until the client’s informed consent is confirmed in writing.
• B.  If a lawyer has obtained a client’s informed consent, the lawyer may act in reliance on that consent so long as it is confirmed in writing within a reasonable time thereafter.
• C.  The rules are silent on this issue.

Question 2

Lawyer called me with an inquiry. I listened. Then, I asked “will any activities of the partnership include the practice of law?”

Most likely, Lawyer called to discuss:

• A.  Selling her firm, but remaining “of counsel.”
• B.  Bringing on a new attorney to work “of counsel.”
• C.  Forming a partnership with a nonlawyer.
• D.  Opening an office in another jurisdiction.

Question 3

Attorney called me with an ethics inquiry.  I listed, then said “a comment to the rule makes it clear that the rule doesn’t apply to an organization’s former constituents.”

Given my statement, it is most likely that Attorney called me to discuss the rule that deals with what topic?

Question 4

Lawyer called with an inquiry. I responded “the rule only applies if a ‘significant motive’ for doing so is your ‘pecuniary gain.'”

What did Lawyer call to discuss?

Question 5

A long, long time ago, Henry Winkler and Scott Baio gained fame playing Fonzie and Chachi on Happy Days.  More recently, the actors played lawyers – one ethical, one not so ethical – on an Emmy award winning television show. Name the show.

 

(Manic) Monday Answers

Yes, Prince wrote Manic Monday.

Before I get to the answers to Five for Friday, the questions are  HERE.

HONOR ROLL

PERFECT SCORE

• Andrew Delaney, Martin & Associates
• Robert Grundstein
• Ian Sullivan, Office of the Rutland County State’s Attorney
• Alli Wannop

PERFECT ETHICS

• Matthew Little, Law Office of Matthew Little
• Lon McClintock, Law Office of Lon McClintock
• Kane Smart, Downs Rachlin Martin

Honorable Mention

• Hal Miller, some beach in Hawaii

THE ANSWERS

Question 1

Lawyer represents Nikki.  Nikki stands charged with lewd & lascivious conduct in a hotel lobby.  The State’s key witness is Apollonia.  Several years ago, Lawyer prosecuted Apollonia while working as a deputy state’s attorney.

Which is most accurate under Vermont’s Rules of Professional Conduct:

• A.  Whether Lawyer conflicts off Nikki’s case will most likely turn on whether Lawyer has confidential government information about Apollonia that could be used to Apollonia’s material disadvantage.  See, Rule 1.11(c).
• B.  Lawyer needs Apollonia’s consent, confirmed in writing, to represent Nikki
• C.  Lawyer needs the State’s consent, confirmed in writing, to represent Nikki
• D.  B & C

Question 2

Attorney represents Plaintiff in a civil suit.   The case is not going to settle and will definitely go to trial.

Attorney took the case on a contingent fee basis. Attorney and Expert can’t agree on a fee.  Attorney thinks Expert’s  fee to testify at trial is unreasonably high.

Attorney & Plaintiff learn that Expert is an avid collector of rare hats.  Plaintiff happens to own a raspberry beret that is extraordinarily rare and quite valuable. Plaintiff tells Attorney that she’ll give the beret to Expert, but only if the jury returns a plaintiff’s verdict.

According to a comment in the Vermont Rules of Professional Conduct, is it generally proper or improper to to pay an expert witness a contingent fee?

Improper.  See, Rule 3.4, Comment [3]  (“The common law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying and that it is improper to pay an expert witness a contingent fee.”)

Question 3

Lawyer called with an inquiry.  She told me that Client is concerned that Client and Lawyer were born under different astrological signs.  Lawyer told me that there “ain’t no particular sign I’m more compatible with“ and that Client should act his age not his shoe size.  Then she said, “but that’s not why I’m calling. I’m calling because I have an additional concern.”

Lawyer described her additional concern.  I replied “generally, the duty is to take reasonable remedial measures, whatever that means.  The comment to the rule suggests that the duty lasts until the conclusion of the proceeding.”

Given my reply, what was Lawyer’s additional concern?

• A.   That she had overcharged Client.
• B.   That Client had offered false testimony.  See, Rule 3.3(a)(3), (b) and (c), and Comment 13.
• C.   That Client is incompetent
• D.   That she had discovered a conflict that she should have discovered much earlier.

Question 4

Lawyer represents Client in a civil case pending in Washington County.  Opposing Counsel filed a motion for summary judgment and supporting memorandum of law.  The memo does not citeLittle v. Red Corvette, a decision from the Vermont Supreme Court that Lawyer not only knows about, but knows is directly adverse to Client’s position.

Which is most accurate under the Vermont Rules of Professional Conduct?

• A.   Lawyer must disclose Little v. Red Corvette in her reply.  See, Rule 3.3(a)(2).
• B.   Lawyer must not disclose Little v. Red Corvette in her reply.
• C.   If Client consents, Lawyer may disclose Little v. Red Corvette in her reply.
• D.   Lawyer must report Opposing Counsel to disciplinary counsel.

Question 5

Prince had 5 songs reach #1 on the Billboard charts.  The last to do so was in 1991, shortly before the artist’s legal dispute with Warner Brothers led him to change his name to an unpronounceable glyph.  Name Prince’s last song to reach #1.

Cream.  Extra credit to Ian Sullivan for correctly stating that it was Prince & The New Power Generation.

Five For Friday: #21

Dearly beloved, we are gathered here today to get through this thing called Five for Friday. That being said, I was dreaming when I wrote this, [so] forgive me if it goes astray.

• email answers to michael.kennedy@vermont.gov
• forward to friends & colleagues encouraging them to enter
• Open book, open search engine, phone-a-friend allowed.  Except for #5

Question 1

Lawyer represents Nikki.  Nikki stands charged with lewd & lascivious conduct in a hotel lobby.  The State’s key witness is Apollonia.  Several years ago, Lawyer prosecuted Apollonia while working as a deputy state’s attorney.  

Which is most accurate under Vermont’s Rules of Professional Conduct:

• A.  Whether Lawyer conflicts off Nikki’s case will most likely turn on whether Lawyer has confidential government information about Apollonia that could be used to Apollonia’s material disadvantage.
• B.  Lawyer needs Apollonia’s consent, confirmed in writing, to represent Nikki
• C.  Lawyer needs the State’s consent, confirmed in writing, to represent Nikki
• D.  B & C

Question 2

Attorney represents Plaintiff in a civil suit.   The case is not going to settle and will definitely go to trial.

Attorney took the case on a contingent fee basis. Attorney and Expert can’t agree on a fee.  Attorney thinks Expert’s  fee to testify at trial is unreasonably high.

Attorney & Plaintiff learn that Expert is an avid collector of rare hats.  Plaintiff happens to own a raspberry beret that is extraordinarily rare and quite valuable. Plaintiff tells Attorney that she’ll give the beret to Expert, but only if the jury returns a plaintiff’s verdict.

According to a comment in the Vermont Rules of Professional Conduct, is it generally proper or improper to to pay an expert witness a contingent fee?

Question 3

Lawyer called with an inquiry.  She told me that Client is concerned that Client and Lawyer were born under different astrological signs.  Lawyer told me that there “ain’t no particular sign I’m more compatible with“ and that Client should act his age not his shoe size.  Then she said, “but that’s not why I’m calling. I’m calling because I have an additional concern.”

Lawyer described her additional concern.  I replied “generally, the duty is to take reasonable remedial measures, whatever that means.  The comment to the rule suggests that the duty lasts until the conclusion of the proceeding.”

Given my reply, what was Lawyer’s additional concern?

• A.   That she had overcharged Client.
• B.   That Client had offered false testimony
• C.   That Client is incompetent
• D.   That she had discovered a conflict that she should have discovered much earlier.

Question 4

Lawyer represents Client in a civil case pending in Washington County.  Opposing Counsel filed a motion for summary judgment and supporting memorandum of law.  The memo does not cite Little v. Red Corvette, a decision from the Vermont Supreme Court that Lawyer not only knows about, but knows is directly adverse to Client’s position.

Which is most accurate under the Vermont Rules of Professional Conduct?

• A.   Lawyer must disclose Little v. Red Corvette in her reply.
• B.   Lawyer must not disclose Little v. Red Corvette in her reply.
• C.   If Client consents, Lawyer may disclose Little v. Red Corvette in her reply.
• D.   Lawyer must report Opposing Counsel to disciplinary counsel.

Question 5

Prince had 5 songs reach #1 on the Billboard charts.  The last to do so was in 1991, shortly before the artist’s legal dispute with Warner Brothers led him to change his name to an unpronounceable glyph.  Name Prince’s last song to reach #1.

 

 

 

 

Professional Responsibility

I’m in DC for #ABADay.  My focus: funding for the Legal Services Corporation and #sentencingreform.  I’m using the hashtags so that readers can tweet on these issues over the next two days.

No, these issues don’t necessarily involve ethics.  I submit, however, that each issue is one to which lawyers owe a professional responsibility.

First, funding for #LSC.  This morning, Representatives Joe Kennedy III and David Jolly presented a united, bipartisan front on the critical need to fund #LSC. Consider this: Representative Kennedy noted that two years ago Americans spent more money on Halloween costumes for their pets than the federal government spent on funding for #LSC.

That’s shameful.

We talk about “the rule of law” and “access to justice” and “equal justice for all.”  Those phrases mean nothing absent funding.  Yesterday, a Senate sub-committee approved $385 million in funding for #LSC   Good start, but not enough.  The administration and the #ABA ask for $475 million.   Readers: contact the members of your congressional delegation and urge them to support the administration’s FY 2017 reuest of $475 million for #LSC and to join the Access to Civil Legal Services Caucus.

Second, #sentencingreform.  It’s time to embrace bipartisan reform that is smart-on-crime, achieves cost savings, and reduces crime.  No matter your political persuasion, I assume you support cost savings and reduction in crime.  If so, let’s support S.2123 and H.R. 3713.

Thanks to folks like T.J. Donovan, Vermont is ahead of the game on this issue.  The federal system lags behind.  The federal prison population has increased by 800% since 1980, with spending up 1700% over that same time period.  The sentencing reform bills aim to:

• reduce mandatory minimums for nonviolent, low-level drug offenses;
• expand judges’ authority to sentence below mandatory minimums in qualified cases; and,
• address an unsustainable over-reliance on incarceration.

I’ve got to run.  So that’s it for now.  But, if you have the time, tweet today in support of #ABADay, funding for #LSC, and #sentencingreform.

Vermont is fortunate: thank you Senator Leahy and Congressman Welch for leading on these issues.

By the way, today’s speaker on #sentencingreform was GW Law Professor Stephen Saltzburg.  He was my criminal procedure teacher.  I introduced myself after his remarks.  He was kind enough not to utter “wait, YOU passed the bar?!?!”

Monday Morning Answers

Good luck to everyone running in today’s Boston Marathon, especially my club mates from the GMAA. I ran in 2013 & 2014 and have already qualified for next year.  In 2013, my hotel was at the finish line. I will never forget the day.

Before I get to this week’s answers, the questions are HERE.

This week’s honor roll includes two first-times with perfect scores!

HONOR ROLL

Perfect Scores

• Kane Smart, Downs Rachlin Martin
• Ian Sullivan, Rutland County State’s Attorney’s Office

Honors

• Matt Anderson, Pratt Vreeland
• Robert Grundstein
• Matthew Little, Law Offices of Matthew Little
• Hal Miller, First American

ANSWERS

Question 1

As of March 31, I am on pace to field 1000 ethics inquiries in FY 2016.  What topic do lawyers most frequently call to discuss?

CONFLICTS OF INTEREST

Question 2

Lawyer called me with an inquiry. I listened and responded “generally, comparisons to others aren’t allowed.”   What did Lawyer call to discuss?

An advertisement or any communication concerning the lawyer’s services.  See, Rule 7.1

Question 3

Under Vermont’s ethics rule on client confidences, lawyers generally are prohibited from revealing “information relating to the representation.”  which is most accurate?

• A.  The ethics rule is co-extensive with the attorney-client privilege.
• B.  The ethics rule covers less information than the attorney-client privilege.
• C.  The ethics rule is more broad than the attorney-client privilege. See, Rule 1.6, Comment 3.

Question 4

In a major copyright trial pending in federal court, lawyers for Oracle and Google recently agreed:

• A.  Not to research jurors’ social media presence. See this blog entry from the Wall Street Journal.
• B.  To waive a conflict of interest, thereby allowing the Los Angeles and New York City offices of the same global firm to represent the tech companies.
• C.  That 50% of any award of attorney’s fees will be donated to activities that fund access to justice programs
• D.  That up to 50% of any award of attorney’s fees will be donated to the California state courts in the form of a state-of-the-art online case management system.

Question 5

Name the lawyer who:

• gained national renown as a criminal lawyer, labor lawyer, and ACLU attorney
• called Calvin Coolidge “the greatest man to come out of Plymouth Corner, Vermont.”
• was charged with attempting to bribe two jurors while representing 2 men on trial for blowing up a building in Los Angeles.  He was acquitted, but was banned from ever again practicing law in California.

 

Clarence Darrow and the events related to the bombing of the LA Times building.

 

 

Five for Friday #20

Hard easy to believe it’s been 20 weeks.  One more and we’re legal.

I’m in DC for a conference.  Seminars don’t start until this morning, so I was able to check out the Nationals-Braves game yesterday.  Most readers who are baseball fans are probably used to Sox games at Fenway, where the ticket, parking, and concessions prices make me think of Rule 1.5.

I’ve found the antidote: Nationals Park.  I showed up 5 minutes before game time, went to the ticket window, and paid a grand total of $11 for a front row seats in the 2nd deck along the right field foul line.  Concessions prices are right there with Fenway’s, but those $9 beverages are more palatable having paid only $11 for the privilege. And I saw Bryce Harper’s 100th career home run, which happened to be a grand slam.

And…safe travels to our most devoted non-attorney reader, my brother, Patrick Kennedy, as he embarks for a vacation in France.

Onward:

• Email answers to michael.kennedy@vermont.gov
• Use whatever resource you want for questions 1-4
• Encourage friends & colleagues to enter

Question 1

As of March 31, I am on pace to field 1000 ethics inquiries in FY 2016.  What topic do lawyers most frequently call to discuss?

Question 2

Lawyer called me with an inquiry. I listened and responded “generally, comparisons to others aren’t allowed.”   What did Lawyer call to discuss?

Question 3

Under Vermont’s ethics rule on client confidences, lawyers generally are prohibited from revealing “information relating to the representation.”  which is most accurate?

• A.  The ethics rule is co-extensive with the attorney-client privilege.
• B.  The ethics rule covers less information than the attorney-client privilege.
• C.  The ethics rule is more broad than the attorney-client privilege.

Question 4

In a major copyright trial pending in federal court, lawyers for Oracle and Google recently agreed:

• A.  Not to research jurors’ social media presence.
• B.  To waive a conflict of interest, thereby allowing the Los Angeles and New York City offices of the same global firm to represent the tech companies.
• C.  That 50% of any award of attorney’s fees will be donated to activities that fund access to justice programs
• D.  That up to 50% of any award of attorney’s fees will be donated to the California state courts in the form of a state-of-the-art online case management system.

Question 5

Name the lawyer who:

• gained national renown as a criminal lawyer, labor lawyer, and ACLU attorney
• called Calvin Coolidge “the greatest man to come out of Plymouth Corner, Vermont.”
• was charged with attempting to bribe two jurors while representing 2 men on trial for blowing up a building in Los Angeles.  He was acquitted, but was banned from ever again practicing law in California.

 

 

Monday Morning Answers

An uptick in participation this week.  Thank you!  I like it.

The answers appear below the honor roll.  If you want to try the questions before you read the answers, they’re HERE.

Looks like I jinxed the Sox with Friday’s comment that, until then, their starting pitchers had combined for only 1 bad outing.  Out of 2.   Since then, 2 wins in 3 games, but only 1 quality outing by a starting pitcher and that came in yesterday’s loss.

HONOR ROLL

PERFECT SCORES

• Andrew Delaney, Martin Associates
• Hal Miller, First American

PERFECT ETHICS

• Gavin Boyles, Office of the Attorney General
• Deb Kirchwey, Law Office of Deb Kirchwey

Honorable Mention

• Matt Anderson, Pratt Vreeland Kennelly Martin & White
• Robert Grundstein
• Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
• David Kennedy, Office of the Court Administrator
• Brendan Scherer, Vermont Law School

ANSWERS

Question 1

Next week, the Senate Government Operations Committee will review legislation that, if adopted as currently written, will subject lawyers to regulatory oversight by the Secretary of State and Assistant Judges for conduct committed while serving as:

• A.  lobbyists
• B.  escrow agents
• C.  title insurers
• D.  notaries, H.206

Question 2

This is a “what am I” question:

• I am a way to help provide access to legal services for those who might not be able to afford a lawyer.
• I am specifically authorized by Rules for Family Proceedings and the Rules of Civil Procedure
• I am specifically authorized by the Vermont Rules of Professional Conduct
• Under the Rules of Professional Conduct, I am allowed only if (a) I am reasonable in the circumstances, and (b) the client gives informed consent.

I am a limited representation (unbundled legal services).  See, Rule 1.2(c).

What am I?

Question 3

There are two rules the prohibit certain attorneys from negotiating for employment with a person who is involved as a party or lawyer in a matter in which the attorneys are participating personally and substantially.  By their terms, the rules only apply to which two types of attorneys?

• A.prosecutors & public defenders
• B. prosecutors & any criminal defense attorney, public or private
• C.  lawyers who are judges & lawyers who are public employees/officers; See Rules 1.11(d)(2)(ii) and 1.12(b).
• D.  lawyers who are judges & lawyers who are law clerks

Question 4

Spouse A and Spouse B ask Lawyer to mediate their divorce. Like the marriage, mediation fails miserably.   Which is most accurate under Vermont’s ethics rules?

• A. Lawyer may represent Spouse A, but only if Lawyer did not receive information from Spouse B that could be “significant harmful” to Spouse B in the divorce
• B. Lawyer may not represent Spouse A or Spouse B and his conflict necessarily disqualifies other lawyers in his firm
• C. If mediation failed before an actual mediation session, Lawyer does not have a conflict
• D. Whether Lawyer has a conflict turns on whether Lawyer’s participation as a mediator was “personal and substantial.”    See, Rule 1.12(a).

Question 5

With baseball back in season….

…..Benedict Short as an attorney in Illinois. I have no reason to believe that he was unethical.  However, in a famous trial, he represented several baseball players who were eventually banned from the sport, baseball’s equivalent of disbarment.  The players were banned for conspiring to fix some of the season’s most important games.

For 1 point each, name the movie that recounted the scandal, and name the most famous of Attorney Scott’s  baseball-playing clients.

8 MEN OUT and Shoeless Joe Jackson

Five for Friday #19

Cheer up!

Yes, it’s rainy and cold.  But, two things should brighten your day.

First, we’re five days into the baseball season and only once has a Red Sox starting pitcher had a terrible outing!  (those of you know that the Sox have only played two games, stop bringing me down & confusing things with numbers).

Second, it’s time for another version of Five for Friday!

• email answers to michael.kennedy@vermont.gov
• use any resource you want for questions 1-4; question 5 is supposed to be closed book, closed notes, disabled browser.
• share the quiz with colleagues and friends
• if you’re reluctant to enter, read THIS

Question 1

Next week, the Senate Government Operations Committee will review legislation that, if adopted as currently written, will subject lawyers to regulatory oversight by the Secretary of State and Assistant Judges for conduct committed while serving as:

• A.  lobbyists
• B.  escrow agents
• C.  title insurers
• D.  notaries

Question 2

This is a “what am I” question:

• I am a way to help provide access to legal services for those who might not be able to afford a lawyer.
• I am specifically authorized by Rules for Family Proceedings and the Rules of Civil Procedure
• I am specifically authorized by the Vermont Rules of Professional Conduct
• Under the Rules of Professional Conduct, I am allowed only if (a) I am reasonable in the circumstances, and (b) the client gives informed consent.

What am I?

Question 3

There are two rules the prohibit certain attorneys from negotiating for employment with a person who is involved as a party or lawyer in a matter in which the attorneys are participating personally and substantially.  By their terms, the rules only apply to which two types of attorneys?

• A.prosecutors & public defenders
• B. prosecutors & any criminal defense attorney, public or private
• C.  lawyers who are judges & lawyers who are public employees/officers
• D.  lawyers who are judges & lawyers who are law clerks

Question 4

Spouse A and Spouse B ask Lawyer to mediate their divorce. Like the marriage, mediation fails miserably.   Which is most accurate under Vermont’s ethics rules?

• A. Lawyer may represent Spouse A, but only if Lawyer did not receive information from Spouse B that could be “significant harmful” to Spouse B in the divorce
• B. Lawyer may not represent Spouse A or Spouse B and his conflict necessarily disqualifies other lawyers in his firm
• C. If mediation failed before an actual mediation session, Lawyer does not have a conflict
• D. Whether Lawyer has a conflict turns on whether Lawyer’s participation as a mediator was “personal and substantial.”

Question 5

With baseball back in season….

…..Benedict Short as an attorney in Illinois. I have no reason to believe that he was unethical.  However, in a famous trial, he represented several baseball players who were eventually banned from the sport, baseball’s equivalent of disbarment.  The players were banned for conspiring to fix some of the season’s most important games.

For 1 point each, name the movie that recounted the scandal, and name the most famous of Attorney Scott’s  baseball-playing clients.

Me, Standby?

“Your honor? Who do you want to Stand By? Me?”

Nothing like using ethics to finagle a gratuitous reference to Corey Feldman.

So, as reported by Samson Habte of Bloomberg’s ABA/BNA Lawyer’s Manual on Professional Conduct, the New Hampshire Bar Association recently released an ethics advisory opinion on the duties of stand-by counsel in a criminal case.  The opinion is here.

Full disclosure: I’ve always been troubled by the notion of stand-by counsel.  I guess you might say that it give me the Goonies.

For those of you not familiar with the concept of stand-by counsel, criminal defendants sometimes choose represent themselves.  It is not unheard of for a court to assign a lawyer to serve as “stand-by counsel” for an otherwise self-represented defendant.

What’s “stand-by” mean? Who knows.

Is stand-by counsel supposed to suggest an obvious objection or question that the self-represented litigant missed?  Even before that, is stand-by counsel expected to remind a self-represented defendant to depose a particular witness or to point out flaws in the theory of defense? What if the self-represented defendant starts making statements that no competent defense counsel would ever let be made in front of a jury?  Does stand-by counsel jump up and sit down the pseudo-client?

Nobody really knows.  That’s why I’ve always been concerned for lawyers assigned to “stand by.”  I don’t know what “stand by” means and I don’t know how the Rules of Professional Conduct apply in a “stand by” situation.  As a result, I don’t know what guidance to provide to an attorney who finds herself position of being the client’s lawyer, but only kind of.

To that end, the NH opinion is helpful in that it offers suggestions as to how a stand-by lawyer can clarify his role.  Still, I don’t think any of you real estate attorneys would feel comfortable “standing by” for a home buyer who chooses to search her own title.   Nor do I think any of you civil trial attorneys would feel comfortable sitting in the front row of the gallery wondering whether you’re supposed to point out to the self-represented litigant that opposing counsel just introduced hearsay.

I get it: we want to make sure that criminal defendants receive fair trials.  But, I do not think it’s fair that the knowing decision to waive counsel results in the lawyer who was declined being thrust into the murky world of “stand-by” counsel.  For those of you who find yourselves in such a position, I hope the NH opinion provides helpful guidance.

Monday Morning Answers

Last week’s quiz is HERE.

Before we get to the answers, the honor roll:

HONOR ROLL

PERFECT SCORE

• Matthew Anderson, Pratt Vreeland Kennelly Martin & White
• William Gardella
• Robert Grundstein
• Melanie Kehne, Office of the Attorney General, GCAL Division

PERFECT ETHICS

• Hal Miller, First American

HONORS

• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Brendan Scherer, Vermont Law School

ANSWERS

Question 1

An attorney called me with an inquiry. I listened.  To clarify, I asked the following question:

• “Ok.  I’m not clear.  Will someone other than the person committing the act be harmed?”

Based upon my question, what general ethics topic did the attorney call me to discuss?

WHETHER TO DISCLOSE INFORMATION RELATING TO A REPRESENTATION.  See, V.R.Pr.C. 1.6(b).  

Question 2

True or False?

• According to a comment to the rules, simultaneous representation in unrelated matters of clients whose interests are only economically adverse, such as representation of competing economic enterprises in unrelated litigation, does not ordinarily constitute a conflict of interest, and thus may not require consent of the respective clients.

TRUE.  See, Rule 1.7, Comment 6.

Question 3

Vermont’s rules on conflicts of interest do not impute a lawyer’s “personal conflicts” to other lawyers in the firm.  The rules are largely silent on what constitutes a “personal” conflict as opposed to a conflict that is imputed (eg: a former client conflict).

Hypo:

• Lawyer represents Blue.  In the same matter, Attorney represents Red.  Lawyer and Attorney are closely related by blood.  Lawyer and Attorney do not work in the same firm. Which is most accurate under Vermont’s Rules of Professional Conduct?

• A.  Lawyer and Attorney are disqualified from representing Blue and Red.
• B.   If the interests of Blue and Red align, neither Lawyer nor Attorney has a conflict.
• C.  If Lawyer or Attorney has a conflict, the conflict is personal and is not imputed to others in the same firm.  See, Rule 1.7, Comment 11.
• D.  If Lawyer or Attorney has a conflict, the conflict is not “personal” and is imputed to others in the same firm.

Question 4

For purposes of the Vermont Rules of Professional Conduct, which is not like the others:

• A.   A money ordered issued by a federally insured bank
• B.  A cashier’s check issued by a credit union
• C.  A check in the amount of $101,000 drawn on an IORTA account of a real estate broker licensed in Vermont
• D.  A personal check in the amount of $1,001.  Each of the other 3 may be considered “collected funds” upon deposit.  See, Rule 1.15(g).

Question 5

In Season 2 of Fargo, attorney Karl Weathers is a ““flowery drunk blessed with the gift of gab and the eloquence of a true con artist.”  Indeed, the very first time viewers see Weathers with a client, Weathers is drunk, having driven straight from the local bar to meet his client in jail.

The actor who plays Weathers is much more widely known for his work on a tremendously popular sit-com that aired from 2009-2015.  On the sit-com, the actor played a deadpan, mustachioed municipal employee who was a staunch libertarian, a strong advocate for privatizing government, and who despised dealing with the public.

For one point each, name the actor and the sit-com on which he starred before portraying a flowery drunk-con-artist-attorney on Fargo.

NICK OFFERMAN, playing Ron Swanson, on Parks & Recreation