Five for Friday: Week 42

UPDATED. Earlier version was a draft posted by mistake.  Nice tech competence by bar counsel.

Before we get to the quiz, an alert: scams continue to target lawyers.  This month alone, Vermont lawyers have been targeted as follows:

  • #1. Out-of-state client retained lawyer to “buy a crane” from a Vermonter.  Client was only available by e-mail and did not need lawyer to contact the party selling the crane.  Client only needed a contract, and to have lawyer run the purchase money through lawyer’s trust account.  A check arrived by Fed Ex. It was drawn on a Canadian bank and exceeded the sum of purchase price + lawyer’s fee.  Client sent an e-mail instructing lawyer to wire funds to the seller and to “keep the extra.”
  • #2. Closing attorney received an e-mail from Seller’s attorney instructing Closing attorney to wire purchase proceeds to Seller’s attorney. The e-mail had all of the details of the transaction correct. Closing attorney wired funds, pursuant to the instructions.  Days later, Seller’s attorney contacted Closing attorney to ask where the money was. All involved determined that Seller’s attorney’s email had been hacked and monitored.  Scam detected, money, however, gone.
  • #3.  Not sure this one is a scam, but I think so.  Attorney received a phone call from someone Attorney had never heard from before.  Caller informed Attorney that Caller is calling about a matter that Attorney is working on with another lawyer.  Caller used the name of an actual Vermont lawyer. Fortunately, in this scenario, Attorney recognized Lawyer’s name, knew she did not have any pending matters with him, and hung up. She called Lawyer who confirmed that he had never heard of Caller and did not represent Caller.  We suspect it was the beginning of a scam.

Scenario 1 is increasingly common.  It often involves a caller purporting to be from Texas.  It usually involves a crane, but perhaps being modified to apply to Vermont, often involves large farm vehicles.

An element common to most scams is the out-of-state client, who you never meet, who either buys something from a Vermonter or seeks to enforce a debt against a Vermonter.  Within days of your involvement, a bank check arrives by Fed Ex or UPS, followed by an e-mail with instructions to wire the funds somewhere outside of Vermont.  It is not uncommon for the amount of the check to exceed the sum of the purchase price/debt & your fee, with the out-of-state caller instucting you to keep the rest for doing such prompt work.

As for receiving an e-mail from a lawyer whose account has been hacked, I do not know what to tell you other than, perhaps, confirm instructions by phone.

I also heard this week from a lawyer whose bank had assured him that it had placed an “ACH block” on his trust account.  Meaning, no ACH debits to the account.  In fact, it had not and someone was able to access the account and withdraw funds.  Even after the lawyer contacted the bank, sorted out what had happened, and was informed that, now, the ACH block was in place……it happened again.

Finally, there is a scam in which an e-mail purporting to be from the client will instruct funds to be wired.  Using me as your client in this example, the e-mail will come from micheal.kennedy@vermont.gov …. hold that thought, it’s relevant to today’s quiz.

  • The rules:
    • No rules.  Open search engine. Exception – Question 5.
    • You may enter as a team.
    • Please forward this to as many colleagues and friends as possible.
    • Important: please email answers to michael.kennedy@vermont.gov

Question 1

In the paragraph above that begins with Finally, what is the scam?

Question 2

The following quote is me talking, either at a CLE or in response to an inquiry.  There will be two blanks, each filled by the issue I’m discussing (same answer for each). Identify the issue.

  • “Your duty is to act competently to safeguard client information, including taking reasonable precautions to safeguard client communications from unauthorized access or receipt by third parties.  Historically, ‘reasonable precautions’ have not included __________. Recently, however, several people associated with attorney regulation have indicated that it may no longer be reasonable not to ____________.”

Question 3

Client retains you for a flat fee of $2000.  One month later, the fee agreement has not been reduced to writing and you have done some, but not much, work for Client.  Which is most accurate under Vermont’s Rules of Professional Conduct?

  • A.  Unless it’s a criminal case, you’ve violated the ethics rules.
  • B.  The bulk of the funds should be in your trust account.
  • C.   Fees paid in advance are earned upon receipt, so the funds should be in your operating account.
  • D.  You violated the ethics rules by failing to reduce the agreement to writing within a reasonable time of commencing the representation.

Question 4

Lawyer called me with an inquiry. I listened, then I responded “whether you can represent Mr. Orange will turn on whether you received from Mr. Blonde information that could be significantly harmful to Mr. Blonde.”

Given my statement, what do we know for sure?

  • A.  Mr. Blonde is Lawyer’s former client.
  • B.  Mr. Orange is suing Mr. Blonde.
  • C.  Mr. Blonde is deceased.
  • D.  Mr. Blonde met with, but did not retain, Lawyer.

Question 5

A few weeks ago, Sarah Paulson won the Emmy for Best Lead Actress in a Limited Series or Movie for a role in which she played a well-known prosecutor.  The show also starred John Travlota, Cuba Gooding Jr., and David Schwimmer and re-told the story of a  trial that took place over 20 years ago.

Part 1:  Name the prosecutor who Paulson portrayed.

Part 2:  Name the defendant.

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