Monday Morning Answers: Week 42

If you want to check out the questions before reading the answers, go HERE. In the meantime, in case you missed it Friday, Florida recently became the first State to mandate tech CLE for lawyers.

HONOR ROLL

(perfect scores in RED.)

  • Matthew Anderson, Pratt Vreeland
  • Laura Gorsky, Law Offices of David Sunshine
  • Robert Grundstein
  • Anthony Iarrpino
  • Aileen Lachs, Mickenburg Dunn Lachs & Smith
  • Brian Martin, Consumer Financial Protection Bureau
  • Hal Miller, First American
  • Kane Smart, Downs Rachlin Martin
  • Allison Wannop, Law Clerk, Vermont Superior Court

ANSWERS

QUESTION 1

I set up question one by referring readers back to this paragraph in the introduction:

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

 

Then I asked: 

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

ANSWER:  My e-mail address was spelled wrong.  I was describing a scam in which I asked you to envision that I was your client & that you received an e-mail from micheal.kennedy@vermont.gov.  A few lines later, I instructed anyone entering the quiz to e-mail answers to michael.kennedy@vermont.gov      The second e-mail address is correct. In the first, “michael” is spelled “micheal.”  This is a very common scam that is very difficult to notice.  Scammers change 1 letter in a e-mail address, send fake wiring instructions, and then are nearly impossible to find once the disbursing attorney finally realizes what happened.

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 encrypting e-mail. Recently, however, several people associated with attorney regulation have indicated that it may no longer be reasonable not to encrypting e-mail.”

If you’d like my power point on e-mail encryption, please e-email me and I’ll send it to you.  Note: I gave credit for “encryption” or “protection” of any type of electronically stored or transmitted information.

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.

Fees paid in advance remain in trust until earned.  See, Rule 1.15(c).  Here, nothing has been done, so the fees have not yet been earned.  Thus, the most accurate answer is B.

There is an exception to the general rule: flat fee agreements.  Flat fee agreements are permitted by Rule 1.15(f), but they MUST be reduced to writing. If so, such fees are earned upon receipt and must not be deposited in trust.  Here, since there was no writing, then fee is not eligible to be treated as yours pursuant to the new flat fee rule. Thus, it must remain in trust until earned.

D is not correct.  The fact that Rule 1.15(f) authorizes flat fees (provided that they are reduced to writing) does not require flat fees.  Further, if your fee is neither a flat fee nor a contingent fee, the Rules do not require you to reduce the fee agreement to writing. So, if you accept $2000 as a flat fee, but do no reduce it in writing, it goes in trust until earned.  That being said, I don’t know why you wouldn’t.

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.

This ode to Reservoir Dogs is an important lesson in conflict.  Many readers answered “A.”  The standard to assess whether a new client presents a conflict with a former client is NOT whether you received information while representing former client that could be harmful to former client in the new matter.  Rather, under Rule 1.9, the standard is whether new client’s interests are materially adverse to former client’s in a matter that is the same or substantially related to the matter in which you represented former client.

Here, D is correct.  In the scenario, Mr. Blonde is a “prospective client.”  He met with, but did not hire, Lawyer.  Then, Mr. Orange came to see him and Lawyer called me.  I referred Lawyer to Rule 1.18(c).  The rule prohibits Lawyer from resulting Mr. Orange in a matter that is the same or substantially related to the matter that Mr. Blonde discussed with Lawyer, but only if Lawyer received from Mr. Blonde information that could be significantly harmful to Mr. Blonde.

Remember: when deciding whether to accept a new client whose interests are adverse to those of a former client, “I don’t remember anything important” and “I didn’t learn anything important” are NOT excuses to a conflict.  The test, again, is whether new client’s interests are material adverse to former client’s in a matter that is the same or substantially related to the former matter. That standard is relaxed in this situation where the prospective client meets with but does not retain you.

 

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.

Name the prosecutor and the defendant.

 

Sarah Paulson played Marcia Clark who, of course, prosecuted O. J. Simpson.

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