Monday Morning Answers

Last week’s questions are HERE.

Yes, I’m getting right to it today.  My direct approach is a result of writer’s block, a euphemism for “I have nothing interesting to say.”

Before I go over the answers, the


  • Matt Anderson, Pratt Vreeland Kennelly Martin & White
  • Robert Grundstein
  • Hal Miller, First American
  • Ian Sullivan – Office of the Rutland County State’s Attorney


Question 1

Generally, the objective of a representation is left to the client, with the means by which the objective is pursued left to the lawyer, in consultation with the client.  I’ve told lawyers (and complainants) that means that the rules don’t require a lawyer to call each and every witness that the client wants put on the stand.

There’s an exception.  There’s a rule that requires a lawyer to abide by the client’s decision to have a particular witness testify.  What type of case are you handling if you are in a situation in which the rule applies to you?

Criminal.  See, Rule 1.2(a) (“in a criminal case, the lawyer shall abide by a client’s decision, after consultation with the lawyer, as to . . .whether to testify.”)

Question 2

Attorney called with an inquiry. The attorney described a situation and then asked “Mike, what does ‘joint responsibility’ mean?” I replied.  “It’s buried in one of the comments.  Let me look… it is, I’ll read it to you:  ‘joint responsibility for the representation entails financial and ethical responsibility for the representation as if the lawyers were associated in a partnership.”

What was the subject of Attorney’s inquiry?

Fee Sharing (also credit for “referrals”)  See, Rule 1.5(e) The rule is this: a division of fee between two lawyers not in the same firm is allowed IF:

  • the division is in proportion to services performed by each OR each lawyer assumes joint responsibility for the representation; and
  • the client agrees, including to the division, and confirms the agreement in writing; and,
  • the total fee is reasonable

Per Comment [7] “joint responsibility for the representation entails financial and ethical responsibility for the representation as if the lawyers were associated in a partnership.”

Question 3

Lawyer called.  We discussed an ethical issue.  In the end, I said something like “the point of the rule is this: it’s not fair to the other side if the jury might not be clear as to whether your statements are proof or an analysis of proof.”

Why did Lawyer call?

I was going for this: lawyer called to discuss the “lawyer as witness” rule, which is rule 3.7see, Comment [2] (“It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.”)

However, I’m giving credit to answers that referred to Rule 3.4(e) and opening/closing statements.

Question 4

Counselor called me.  “Mike, I took a family law case and it bit me. I messed up, got sued.  My carrier extended an offer. I think they want a little more, but my carrier doesn’t want to go any higher.  My former client said that she’ll take the offer, but only if I agree never again to take a divorce case.  Sounds like a deal to me, but I wanted to run it by you first.”

It is most likely that I responded:

  • A.   You have a duty to self-report.
  • B.   If you agree to that term, you have to change your letterhead, website, and ads to make it clear that you don’t handle divorces.
  • C.   The rules prohibit you from agreeing to that term.  Rule 5.6(b) prohibits any settlement that includes a restriction on the lawyer’s right to practice. Here “a” is not correct, because Counselor hasn’t done anything, yet, but call me.

Question 5

This lawyer was 20 when he graduated from Columbia Law School. He had to wait until he was 21 to be admitted to the bar. Three years later, he gained national prominence for his role as an Assistant United State Attorney in the federal government’s prosecution of Ethel and Julius Rosenberg.

He parlayed that into a job as chief counsel to United States Senator Joseph McCarthy, where he joined Robert Kennedy as counsel on Senator McCarthy’s most well-known committee.

Later, after leaving McCarthy’s office, he had a long career in private practice. Among others, he represented Donald Trump’s business interests and the New York Yankees in litigation that followed the famous George Brett “Pine Tar” incident.

In 1986, the State of New York disbarred him for misappropriation of client funds, lying on his bar application, and pressuring a dying a client to change a will to leave the client’s fortune to himself (the lawyer).

People my age might have learned about him by listening to Billy Joel’s We Didn’t Start the Fire.

Name the lawyer.

Roy Cohn…..with the Billy Joel lyrics including this verse:

“Roy Cohn, Juan Peron, Toscanini, Dacron
Dien Bien Phu falls, ‘Rock Around the Clock’