Monday Morning Answers: Week 43

Before I get to the answers, please take a look at this blog post. I posted it Friday evening, so you might have missed it.  It’s an important issue.  As for the quiz, if you want to review the questions before you read the answers, go HERE.



Question 1

Which is different than the others?

  • A.   Self-reporting misconduct
  • B.   Avoiding the appearance of impropriety.
  • C.  Providing zealous representation to your client
  • D.  Protecting info shared by a prospective client who meets with you, but does not hire you.

Optional Bonus – explain your answer to Question 1.  

Answer:  D.  I gave lots of credit for this question, mainly because many people who answered something other than “D” provided excellent explanations of their thinking.  Here’s what I was looking for:  A, B, and C are not required by the Vermont Rules of Professional Misconduct. 

A – the reporting rule applies when a lawyer has a knowledge that “another attorney” has committed a violation.  

B – The conflicts rules do not prohibit the “appearance of impropriety.”

C – Since 1999, the rules  no longer require “zealous representation.”  The phrase has been moved to the Comment.  The old rule was replaced by Rule 1.3, with requires a lawyer to act with “reasonable diligence and promptness.”

D is required by Rule 1.18.

Question 2

Sterling is 28 years old and has a legal issue.  Sterling wants to retain Lawyer, but does not have any money.  Malory is Sterling’s mother.  Malory pays Lawyer to represent Sterling.  She does so by hand-delivering to Lawyer a check that is drawn on her personal checking account. Lawyer deposits the check in trust.

Lawyer assists Sterling to resolve the issue. Lawyer does so without using or billing against the entire amount advanced by Malory.  The unearned portion remains Lawyer’s trust account.

Sterling instructs Lawyer to send him the unused portion of the retainer.  Not so surprisingly, Malory demands the funds, telling Lawyer that the funds are hers.

In this situation, most jurisdictions have determined that Lawyer must:

  • A.  Deliver the funds to Sterling, per his instructions.
  • B.  Deliver the funds to Malory.
  • C.  Keep the funds in trust until the dispute is resolved.
  • D.  Transfer the funds to the operating account until the dispute is resolved.

The key here is that Lawyer took the money from Malory.  Had Lawyer received the funds from Sterling, Lawyer would’ve been required to refund the unused portion to Sterling and leave Malory and Sterling to resolve any issue between them. However, here, the money was Malory’s. The fact that she paid does not convert it to a “gift” or “loan” to Sterling. 

See: Rhode Island Supreme Court Advisory Opinion 2016-08 (When an attorney receives funds for fees from a third-party payor, the third-party payor, and not the client, is entitled to the refund of excess fees at the conclusion of the representation, unless there are agreements specifying otherwise); Cal. State Bar, Formal Opinion 2013-187; North Carolina State Bar, Formal Ethics Opinion 2005-12.

Nobody earned secret bonus points for pointing out that Malory and Sterling are mother & son on the wickedly awesome tv show Archer.


Question 3

How often must a Vermont lawyer reconcile a trust account?

  • A.  Weekly
  • B.  Monthly. This is new Rule 1.15A(a)(4), which went into effect in May 2016.
  • C.  Quarterly
  • D.  The rules are silent, but case law holds that it is a violation to go more than 2 months without reconciling a trust account.

Question 4

Attorney called me with an inquiry.  I listened, then said:

  • “The rule only applies if you are ‘necessary’ and, even then, only at trial.  So even if it’s a conflict, you’re not out until trial.  Not only that, if it’s a conflict, it’s not imputed to other lawyers in your firm.”

Why did Attorney call me?

Because Attorney wanted guidance on the rule that applies to a lawyer who is also a witness.  It’s Rule 3.7.

Question 5

Last weekend, somebody was robbed.  To say that the robbery “made the news” would be an understatement.

On Monday, the U.S. Supreme Court heard argument in a criminal case. The defendant had been convicted of bank fraud after electronically transferring funds to his own account from his roommate’s father’s account.  Before the Court, defendant argued that while he had intended to defraud his roommate’s father, he had not intended to defraud the bank.

Justice Breyer was skeptical of the argument. As such, he asked a question in which he (Breyer) referred to last weekend’s news-making robbery. The fact that Justice Breyer referred to the robbery  caused Above the Law to post a blog with the headline “Weep for the Republic.”

Name the alleged victim of last weekend’s news-making robbery to whom Justice Breyer referred during Monday’s argument before the U.S. Supreme Court.

Kim Kardashian.  The Above The Law blog post is HERE.