Monday Morning Answers – Endless Summer Edition

The Labor Day/Endless Summer edition of Five for Friday is HERE. Answers follow the honor roll. For you college football fans, endless summer quickly turned into a disappointing fall for  OU LSU Notre Dame .


* = perfect score

  • Matt Anderson*, Pratt Vreeland Kennelly Martin & White
  • Gary Franklin, Primmer Piper Eggleston & Cramer
  • Laura Gorsky, Law Offices of David Sunshine
  • Robert Grundstein
  • Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
  • Jack Kennelly*, Pratt Vreeland Kennelly Martin & White
  • Deborah Kirchwey
  • Hal Miller*, First American
  • Kane Smart*, Downs Rachlin Martin
  • Emily Tredeau, Office of the Defender General


Question 1

Lawyer called and outlined an ongoing matter in which she represents Client.  She told me that she wants to continue to represent Client, but only if she and Client can reach an agreement prospectively limiting her liability to Client for malpractice.

Most likely, my response was:

  • A.  Don’t do it unless Client is independently represented in making the agreement. Rule 1.8(h)(1) Now, I’d also suggest informed consent, confirmed in writing, just to protect yourself.  The rule, however, does not require it.
  • B.  Don’t do it unless Client gives informed consent, confirmed in writing.
  • C.  Don’t do it.  The rules prohibit lawyers from entering into agreements that prospectively limit their liability for malpractice.
  • D.   You have a conflict of interest that requires you to withdraw.

Question 2

Attorney called with an inquiry related to a civil action in which he represents Client.  I listened, then responded: “be careful.  i think it’s a stretch to consider that as a litigation expense or a cost of obtaining evidence.”

What did Attorney call to discuss?

Attorney called to discuss providing financial assistance (advancing litigation costs) to a client.  Rule 1.8(e).

Question 3

Lawyer focuses primarily on family and criminal law.  Lawyer represented Client in a divorce, then also represented Client (a) when Client sold the marital home to spouse; and (b) when Client purchased a new condo. Lawyer botched aspects of both the sale and purchase.

Client sued Lawyer for malpractice in the real estate matters.  Client was independently represented in the malpractice case.  Lawyer settled the claim.  The settlement included money and an agreement that Lawyer would never again represent clients in real estate transactions.

Which is most accurate in Vermont?

  • A.  Lawyer violated the conflict rules.
  • B.  Client’s malpractice attorney is required to report Lawyer’s conduct in the real estate matters to disciplinary counsel.
  • C.  Lawyer is required to self-report his conduct in the real estate matters to disciplinary counsel.
  • D.  The settlement agreement violates the Rules of Professional Conduct. Rule 5.6(b) prohibits settlements that impose restrictions on a lawyer’s right to practice.

Question 4

Potential Client met with Attorney.  Potential Client did not retain Attorney or pay Attorney for her time.  Now, Attorney has a chance to represent Person in a matter in which Person’s interests are materially adverse to Potential Client’s.

Which is most accurate in Vermont?

  • A.   Attorney may represent Person.
  • B.   Attorney shall not represent Person.
  • C.   Attorney shall not represent Person if she received information from Potential Client that could be significantly harmful to Potential Client.  See, Rule 1.18(c).

Question 5

ILTA is the International Legal Technology Association.  ILTACON 2016 was held this week. ILTACON is an annual educational conference at which participants discuss ways to encourage lawyers to embrace technology as a tool to help the profession face its challenges.

At the conference, ILTA warned attendees that the seminars were ” ________ free zones.”

The blank is a tech related item that swept the nation this summer.

What type of technology was banned at this week’s conference of the International Legal Technology Association?

The seminars at ILTACON 2016 were Pokemon Free Zones.  (thank you @lbrodinsky and Above The Law for the tip)

Pokémon GO