Month: July 2016

Another Scam

Michael 1 Comment

Here’s the latest scam to target real estate practitioners and their clients.

  • Lender forwarded to Law Firm a request for a title search and for representation of Buyer at closing.
  • Two days later, Buyer received a call from someone purporting to be from Law Firm.
  • Caller had  the address of the property, Realtor’s name, and other pertinent information.
  • Caller told Buyer that Law Firm required a prepayment of $500.00 to commence work.
  • Buyer gave Caller a credit card number and authorized a charge of $500.

It was a fraud.  Someone’s email had been hacked – either Law Firm’s, Lender’s,  Buyer’s or Realtor’s.

Law Firm now includes in its engagement letter language indicating that it WILL NOT ask for credit card info over the phone.

Remember Sergeant Phil:

Image result for sergeant phil esterhaus

 

Answers (Late!)

Michael

Very belatedly, here are the answers to last Friday’s quiz.  I apologize for the delay.

Tough crowd this week.  Entrants needed to get at least 4 correct to make the honor roll.

HONOR ROLL

Question 1

Builder is a plaintiff in a suit vs. Developer.  Attorney represents Builder. The case is pending in Chittenden Superior Court.

Builder also owns property in Addison County.  He’s asked a local zoning board to rezone the property.   Neighbor opposes the request.

Builder is represented by zoning lawyer in the zoning case.  Neighbor wants to hire Attorney.

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

  • A.   Attorney may not represent Neighbor.
  • B.  Since the two cases are not substantially related, Attorney may represent Neighbor.
  • C.   Attorney may represent Neighbor if Attorney complies with the waiver provisions in the rule on concurrent conflicts of interest.  See, Rule 1.7.
  • D.   Attorney may represent Neighbor if Attorney complies with the waiver provisions in the rule on communicating with a represented party.

Question 2

Which is the more accurate statement?

  • A.  Vermont’s rules require lawyers to charge reasonable fees.
  • B.   Vermont’s lawyers prohibit lawyers from charging unreasonable fees.  See, Rule 1.5.

Several of you correctly pointed out that Rule 1.5 was amended in 2009 because while requiring reasonable fees, Rule 1.5 did not specifically prohibit unreasonable fees.  In addition, Allison and Kane correctly observed that a lawyer is not required to charge a fee at all.  Yes, lawyers being lawyers, in the old days, lawyers actually wondered if a rule requiring reasonable fees prevented lawyers from charging low (or no) fees.

 

Question 3

Fill in the blank.  Four words.

“In the course of representing a client, a lawyer shall not knowingly make a false statement of material fact or law to a third person.”

Hint: size doesn’t matter.  The length of the blanks is irrelevant.

Question 4

Lawyer called me with an inquiry.  I listened, then answered:

“The rules don’t reference ‘standby counsel.’  I worry for lawyers who agree to do it.  At the very least, I urge them to review an advisory opinion that the NH Bar issued in April. The opinion states that serving as standby counsel isn’t per se unethical.  However, it goes on to suggest that the first thing standby counsel should do is to clarify what’s expected of her. I agree with that suggestion.”

Most likely, what area of law does Lawyer practice?

Criminal law. See my post on Standby Counsel.

Question 5

Another fill in the blank (kind of).

Earlier this week, the Second Circuit issued this order:

“_____________________, filed a petition for panel rehearing, or, in the alternative, for rehearing en banc. The panel that determined the appeal has considered the request for panel rehearing, and the active members of the Court have considered the request for rehearing en banc.

IT IS HEREBY ORDERED that the petition is denied.”

Given the 2nd Circuit’s Order, whose unethical behavior may finally be behind us once and for all?

Tom Brady.

We must live in New England, because everyone who entered got it right.

Technical answer:  the NFL Players Association and Tom Brady.

No credit to my brother for his addendum that, as phrased, the question’s answer should be Roger Goodell.

This question was asked on behalf of Steeler fans everywhere, including Allison Wannop and me.

Five for Friday #32

Michael

Yes, 32.  Last week’s title was a typo.

A few reminders:

  • No rules
  • Exception: #5
  • Please share the quiz with colleagues
  • Email answers to michael.kennedy@vermont.gov

Question 1

Builder is a plaintiff in a suit vs. Developer.  Attorney represents Builder. The case is pending in Chittenden Superior Court.

Builder also owns property in Addison County.  He’s asked a local zoning board to rezone the property.   Neighbor opposes the request.

Builder is represented by zoning lawyer in the zoning case.  Neighbor wants to hire Attorney.

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

  • A.   Attorney may not represent Neighbor.
  • B.  Since the two cases are not substantially related, Attorney may represent Neighbor.
  • C.   Attorney may represent Neighbor if Attorney complies with the waiver provisions in the rule on concurrent conflicts of interest.
  • D.   Attorney may represent Neighbor if Attorney complies with the waiver provisions in the rule on communicating with a represented party.

Question 2

Which is the more accurate statement?

  • A.  Vermont’s rules require lawyers to charge reasonable fees.
  • B.   Vermont’s lawyers prohibit lawyers from charging unreasonable fees.

** – i’ll reprint the “best answer” for anyone who goes the extra step and explains why the answer is what it is.

Question 3

Fill in the blank.  Four words.

“In the course of representing a client, a lawyer shall not knowingly make a false statement of _______  _______ _____ ______ to a third person.”

Hint: size doesn’t matter.  The length of the blanks is irrelevant.

Question 4

Lawyer called me with an inquiry.  I listened, then answered:

“The rules don’t reference ‘standby counsel.’  I worry for lawyers who agree to do it.  At the very least, I urge them to review an advisory opinion that the NH Bar issued in April. The opinion states that serving as standby counsel isn’t per se unethical.  However, it goes on to suggest that the first thing standby counsel should do is to clarify what’s expected of her. I agree with that suggestion.”

Most likely, what area of law does Lawyer practice?

Question 5

Another fill in the blank (kind of).

Earlier this week, the Second Circuit issued this order:

“_____________________, filed a petition for panel rehearing, or, in the alternative, for rehearing en banc. The panel that determined the appeal has considered the request for panel rehearing, and the active members of the Court have considered the request for rehearing en banc.

IT IS HEREBY ORDERED that the petition is denied.”

Given the 2nd Circuit’s Order, whose unethical behavior may finally be behind us once and for all?

 

Monday Morning Answers

Michael

Friday’s quiz is HERE.  The questions weren’t great.  I’ll get back to basics this week.

Anyway, the answers follow this weeks’s HONOR ROLL

  • Andrew Delaney, Martin & Associates
  • Lauri Fisher, Kenney & Fisher
  • Robert Grundstein
  • Keith Kasper, McNamara, Fitzpatrick, Kasper, & Burchard
  • Team Liberty (ACLU OF CT)
  • Hal Miller, First American
  • Kane Smart, Downs Rachlin Martin
  • Ian Sullivan, Office of the Rutland County State’s Attorney

Question 1

Lawyer intends to create a succcesion plan naming Attorney as her successor attorney. One of the first things Lawyer must consider is whether Attorney:

  • A.  Will be paid by Lawyer, or, by Lawyer’s clients.
  • B.   Has any clients whose interests conflicts with the interest Lawyer’s clients.
  • C.  Will step in to represent Lawyer’s clients, or, will inventory the files and notify Lawyer’s clients of lawyer’s death or disability.
  • D.  Is competent to handle the types of cases Lawyer handled.

This one came straight from last Thursday’s blog post on succession plans.

A, B, and D cannot be addressed until C is resolved.

Question 2

Last winter, Lawyer left Office for a new job at Firm.

Last week, Client asked.Firm to represent Client in a dispute with Smith.

Smith is represented by Office.  Smith received legal advice related to the dispute with Client while Lawyer still worked at Office.

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

  • A.  Lawyer cannot represent Client and the conflict is imputed to entire Firm.
  • B.  Lawyer cannot represent Client but the conflict is not imputed to entire Firm.
  • C.  Firm may represent Client if Lawyer did not participate personally and substantially in the matter while employed at Office.
  • D.  C, as long Firm also screens Lawyer from participation in the matter, notifies Office of the screening procedures, and both Lawyer and Firm periodically certify to Office compliance with the screening procedures.  See, Rule 1.10(a).

This answer might be most helpful to ensure you have an updated version of the Rules of Professional Conduct.  Rule 1.10 was amended in 2012, so if you’re using a green book from prior to 2012, make sure to check the pocket part.

Question 3

Lawyer called me with an inquiry.  I listened, then responded “you could ask A to write a check to B. If B is willing to accept it, you’re good to go.”

Now, I suppose this could come up in a variety of contexts.  However, for me as bar counsel, it usually comes up in one.   It’s most likely that Lawyer called to discuss:

  • A.  Settling a personal injury suit
  • B.  Closing a real estate transaction
  • C.  Settling a property dispute in a divorce.
  • D.  A referral fee with another attorney.

This week’s model answer comes from Hal Miller.  Hal wrote: 

  • “B – An attorney can only accept a personal check in a real estate closing that does not exceed $1,000.00 and run it through his/her Trust Account – but the money can be exchanged directly between the Buyer and Seller.”
  • The key here is the rule on collected funds. It’s Rule 1.15(g) and it prohibits lawyers from disbursing from trust absent collected funds.  The rule sets outs types of instruments that lawyers can reasonably expect to become collected funds and, therefore, against which lawyers can disburse upon deposit.  One such type of instrument is a personal check that does not exceed $1,000.

Question 4

Attorney called me with an inquiry. I responded “Great timing! Just last night I saw something on Twitter about a CLE on what a litigator needs to know about native format.”

Most likely, Attorney called me to discuss the duty of competence insofar as it relates to what general area? (the answer is not “litigation”)

Electronically Stored Information.  For litigators, it usually comes up in connection with discovery. See, Rule 34(b) of the Vermont Rules of Civil Procedure.  Here’s a primer from the ABA, and here’s a Lawyer’s Guide to Forms of of Production.

Question 5

Matthew Murdock attended Columbia Law School.  While he was there, his father, Jack, was murdered for refusing to throw a boxing match.  When the legal system failed to bring his father’s killers to justice, Matthew made it his mission to avenge his father’s death and to fight evil that is beyond the law’s reach.  He eventually opened a small firm in New York City with Columbia classmate Foggy Nelson.

Whether from Netflix, the movies, or comic books, who is Matthew Murdock better known as?

Matthew Murdock is Daredevil.

Updated Five for Friday #32

Michael

A reader whose opinion I value pointed out that Question 3 is a bit too amorphous. He was right. So I’ve edited it.

No rules, except for #5.  Email answers to michael.kennedy@vermont.gov

Please consider forwarding to colleagues.  It’s permissible to enter as a team.

Question 1

Lawyer intends to create a succcesion plan naming Attorney as her successor attorney. One of the first things Lawyer must consider is whether Attorney:

  • A.  Will be paid by Lawyer, or, by Lawyer’s clients.
  • B.   Has any clients whose interests conflicts with the interest Lawyer’s clients.
  • C.  Will step in to represent Lawyer’s clients, or, will inventory the files and notify Lawyer’s clients of lawyer’s death or disability.
  • D.  Is competent to handle the types of cases Lawyer handled.

Question 2

Last winter, Lawyer left Office for a new job at Firm.

Last week, Client asked.Firm to represent Client in a dispute with Smith.

Smith is represented by Office.  Smith received legal advice related to the dispute with Client while Lawyer still worked at Office.

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

  • A.  Lawyer cannot represent Client and the conflict is imputed to entire Firm.
  • B.  Lawyer cannot represent Client but the conflict is not imputed to entire Firm.
  • C.  Firm may represent Client if Lawyer did not participate personally and substantially in the matter while employed at Office.
  • D.  C, as long Firm also screens Lawyer from participation in the matter, notifies Office of the screening procedures, and both Lawyer and Firm periodically certify to Office compliance with the screening procedures.

Question 3

 

Lawyer called me with an inquiry.  I listened, then responded “you could ask A to write a check to B. If B is willing to accept it, you’re good to go.”

Now, I suppose this could come up in a variety of contexts.  However, for me as bar counsel, it usually comes up in one.   It’s most likely that Lawyer called to discuss:

  • A.  Settling a personal injury suit
  • B.  Closing a real estate transaction
  • C.  Settling a property dispute in a divorce.
  • D.  A referral fee with another attorney.

Question 4

Attorney called me with an inquiry. I responded “Great timing! Just last night I saw something on Twitter about a CLE on what a litigator needs to know about native format.”

Most likely, Attorney called me to discuss the duty of competence insofar as it relates to what general area? (the answer is not “litigation”)

Question 5

Matthew Murdock attended Columbia Law School.  While he was there, his father, Jack, was murdered for refusing to throw a boxing match.  When the legal system failed to bring his father’s killers to justice, Matthew made it his mission to avenge his father’s death and to fight evil that is beyond the law’s reach.  He eventually opened a small firm in New York City with Columbia classmate Foggy Nelson.

Whether from Netflix, the movies, or comic books, who is Matthew Murdock better known as?

 

Five For Friday – #32

Michael

No rules, except for #5.  Email answers to michael.kennedy@vermont.gov

Please consider forwarding to colleagues.  It’s permissible to enter as a team.

Question 1

Lawyer intends to create a succcesion plan naming Attorney as her successor attorney. One of the first things Lawyer must consider is whether Attorney:

  • A.  Will be paid by Lawyer, or, by Lawyer’s clients.
  • B.   Has any clients whose interests conflicts with the interest Lawyer’s clients.
  • C.  Will step in to represent Lawyer’s clients, or, will inventory the files and notify Lawyer’s clients of lawyer’s death or disability.
  • D.  Is competent to the types of cases Lawyer handled.

Question 2

Last winter, Lawyer left Office for a new job at Firm.

Last week, Client asked.Firm to represent Client in a dispute with Smith.

Smith is represented by Office.  Smith received legal advice related to the dispute with Client while Lawyer still worked at Office.

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

  • A.  Lawyer cannot represent Client and the conflict is imputed to entire Firm.
  • B.  Lawyer cannot represent Client but the conflict is not imputed to entire Firm.
  • C.  Firm may represent Client if Lawyer did not participate personally and substantially in the matter while employed at Office.
  • D.  C, as long Firm also screens Lawyer from participation in the matter, notifies Office of the screening procedures, and both Lawyer and Firm periodically certify to Office compliance with the screening procedures.

Question 3

 

Lawyer called me with an inquiry.  I listened, then responded “you could ask A to write a check to B. If B is willing to accept it, you’re good to go.”

Now, I suppos this could come up in a variety of contexts.  However, for me as bar counsel, it comes up in one.  What context?

Question 4

Attorney called me with an inquiry. I responded “Great timing! Just last night I saw something on Twitter about a CLE on what a litigator needs to know about native format.”

Most likely, Attorney called me to discuss the duty of competence insofar as it relates to what general area? (the answer is not “litigation”)

Question 5

Matthew Murdock attended Columbia Law School.  While he was there, his father, Jack, was murdered for refusing to throw a boxing match.  When the legal system failed to bring his father’s killers to justice, Matthew made it his mission to avenge his father’s death and to fight evil that is beyond the law’s reach.  He eventually opened a small firm in New York City with Columbia classmate Foggy Nelson.

Whether from Netflix, the movies, or comic books, who is Matthew Murdock better known as?

 

 

 

Success

Michael

Did I say success?  Oops. I meant to say “succession.”  Be prepared to yawn & roll your eyes: this post is about Succession Planning.

Some background.

In 2009, the Vermont Supreme Court adopted a series of amendments to the Rules of Professional Conduct.  Among the changes, the addition of Comment 5 to Rule 1.3.  I’m sure each and every one of you just thought to your self “self, rule 1.3…the rule on diligence.”  Good job.

Rule 1.3 requires an attorney to act with reasonable diligence and promptness when representing a client.  Comment [5] states:

  • “To prevent neglect of client matters in the event of a sole practitioner’s death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer’s death or disability, and determine whether there is a need for immediate protective action.”

In 2011, I sent this memo the bar.  Shortly thereafter, Mary Ashcroft, Jim Knapp, Kevin Ryan and I embarked upon a series of CLEs on Succession Planning.  Attendance was great.  However, most who attended were much more interested in how to sell a law practice than in matters related to preparing a succession plan.

Yes, it’s important to put significant thought into selling a practice and transitioning out of practice. However, what Comment 5 and I want you to think about is what I’ve jokingly called a “semi plan.”  What will happen to your practice if you walk out the door tonight and get hit by a semi?  As a profession, we spend a lot of time advising others on how to plan for the future.  We need to do the same.

An email from my friend and colleague Josh Simonds prompted the idea for this post.  I’m going to chat with the VBA’s Jennifer Emens-Butler about reprising the CLEs.  In the meantime, from my perspective, the key to a succession plan is this: in the event of your death, disability, or unavailability,  is your successor agreeing to step in to represent your clients, or, is your successor inventorying your files and practice in order to protect your clients’ interests?

You’re free to set up either type of succession plan.  From what I’ve read and heard, I suggest the latter. But, do some research.

I’ve often referred to the New York State Bar’s Planning Ahead Guide which is HERE. The Cal State Bar has published some guidance.  It’s HERE.  The Washington State Bar Association has published this.

Failing to plan is planning to fail.  I know none of you plans to fail.  So, consider a plan.

That would be success.

 

Updates

Michael

A few updates:

As I mentioned in this post, it’s rarely e-mail, encryption, or the cloud that causes lawyers to violate Rule 1.6.  Rather, it’s simple negligence to the tune of “what were you thinking?”   Somewhat on point, check out this story involving Johnny Football’s lawyer.

In other news, a few weeks ago I referred to the near-mistrial in the Led Zeppelin case.  Last week, a federal court in Philadelphia suspended the lawyer who nearly caused it. The story, which involves music, but not the Led Zeppelin case, is here.