Monday Morning Answers: #53

Friday’s quiz is here.  The answers follow the honor roll.


Compare the picture in Friday’s quiz to this picture.  I took it earlier this year on a pier in Huntington Beach, CA, not terribly far from Hal’s house.


Question 1

Which is different than the others?

  • A.   Contingent fee agreement
  • B.   Client’s agreement to allow Attorney to share a fee with a lawyer in another firm
  • C.   Former client’s agreement to consent to a conflict
  • D.   An agreement to limit a representation

The agreements in choices A, B, and C must be in writing.  An agreement to limit a representation does not.  See, Rule 1.2(c).  Although a writing isn’t required, it cannot hurt to have one. Also, this answer is based on the Rules of Professional Conduct.  The civil rules and family rules might require writings in certain situations.

Question 2

Which is different than the otheres?

  • A.   Continued representation will result in a violation of the rules.
  • B.   A lawyer’s phyical or mental condition materially impairs the lawyer’s ability to represent the client.
  • C.   Lawyer is discharged
  • D.   Client fails to comply with the terms of a fee agreement

Scenarios A, B, and C require withdrawal.  In scenario D, withdrawal is permitted, but not required.  See, Rule 1.16.

Question 3

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

  • “think of it this way:  does your client knows what she’s agreeing to?  If you want a more lawyerly answer, it means that your client agrees to a proposed course of conduct after you communicate to her adequate information & explanation about the material risks of, and reasonably available alternatives to, the proposed course of conduct.”

Given my response, Attorney called to ask about the meaning of . .  . what?

Informed Consent.  See, Rule 1.0(e)

Question 4

Lawyer called with an inquiry.  Lawyer asked “Mike, does the duty to remonstrate & take remedial action apply at a deposition? Or just in court?”

I only ask this question because the word “remonstrate” makes me laugh.  Still, a two-part question:

  • Most likely, what general issue spurred Lawyer to call me?
    • Lawyer learned that client gave false testimony during the deposition.
  • What was my response?

Question 5

In Vermont, we used to have a professionalism component as part of the CLE requirement. Not anymore.  Fortunately, we still have Rule 3.5(d).  It’s a rule that prohibits undignified or discourteous conduct that is degrading or degrading to a tribunal.

Earlier this week, a Pennsylvania court held a hearing on a pre-trial motion that had been filed in a highly-publicized sexual assault case.  Two issues arose: (1) whether the prosecution will be allowed to introduce testimony from more than a dozen accusers other than the victim who the defendant is alleged to have sexually assaulted; and (2) if so, whether the defense will be permitted to identify them by name.

During the hearing, the prosecutor and defense counsel became enraged and started screaming at each other.  The judge warned each that the sheriff would soon arrive if the lawyers didn’t start to act a bit more civilly.

I don’t know if the screaming match rose to the level of a violation of Pennsylvania’s version of Rule 3.5(d). But I do know who the defendant is.  And I know you’ve heard of the defendant too.

Who is the defendant?

Bill Cosby.  The ABA Journal has the story here.