Monday Morning Answers: #56

Excellent participation this week, including a few first-timers. Question 5 proved difficult. Congrats to Rachel Thomspon on submitting the week’s only perfect score! The questions are HERE.  Answers follow the Honor Roll.


Question 1

Under the old Code of Professional Responsibility, lawyers had a duty to maintain a client’s “confidences and secrets.”  In 1999, the Rules of Professional Conduct replaced the  Code.  The phrase “confidence and secrets” was not carried over to the Rules.

Which of the following replaced “confidence and secrets”?

  • A.  ” Information relating to the representation of a client.” See, Rule 1.6.
  • B.   “Communications relating to the representation of a client.”
  • C.  “Information subject to an evidentiary privilege.”
  • D.  “Information subject to the attorney-client privilege.”

Question 2

Attorney called me with an inquiry. I listened, then said “under the rule, what you do next will depend on whether That Person contacted you in ‘good-faith.’ ”

Most likely, That Person,

  • A.  contacted Attorney for legal advice, and has legal interests adverse to the interests of one of Attorney’s current clients.    I blogged on this issue this week.  See this post and Rule 1.18.
  • B.  has received legal advice from another lawyer, but contacted Attorney for a second opinion.
  • C.  is adverse to Attorney’s client and is represented by counsel.
  • D.  is a lawyer, but is not licensed to practice law in Vermont.

Question 3

Client advanced a $2000 “flat fee” to Lawyer to handle a matter.  Lawyer did not reduce the fee agreement to writing and deposited the fee into a pooled interest-bearing trust account.  Three weeks later, Client terminated Lawyer.  The matter had not concluded.

Client & Lawyer agree that Lawyer earned $1,000 of the fee.  They do not agree that Lawyer earned the rest of the fee. The entire $2,000 remains in Lawyer’s pooled interest-bearing trust account.

Which is most accurate?

  • A.  Lawyer must remove $1,000 from the pooled interest-bearing trust account and leave the other $1,000 in trust until the dispute is resolved.
  • B.  Lawyer violated the rules by failing to reduce the fee agreement to writing.
  • C.  Lawyer violated the rules by depositing the “flat fee” into a pooled interest-bearing trust account.
  • D.  Lawyer must leave $2,000 in the pooled interest-bearing trust account until the dispute is resolved.

Neither B nor C is correct.  

B is incorrect because the rules do not require flat fees to be reduced to writing.  C is wrong because if a flat fee is not reduced to writing, it must be deposited in trust.

Note: to treat a flat fee, or any fee paid in advance, as earned upon receipt, the agreement must be reduced to writing and must comply with the terms of Rule 1.5(f).

Question 4

The number of self-represented litigants (“SRL’s”) continues to rise. Ethically, a lawyer may prepare a document that requires the signature of a SRL whose interests are materially adverse to the interests of the lawyer’s client.

Is the following statement true or false?

  • “However, as currently written, the Rules of Professional Conduct prohibit a lawyer from providing an SRL whose interests are adverse to the lawyer’s client with an explanation of the lawyer’s view of the meaning of the document.”

False.  See, Rule 4.3, Comment 2 (the final sentence of the comment).

Question 5

I like spies and all things espionage.  Pat Camp is one of my best friends. We spent many days & nights in the mid-80’s on missions throughout the Lake Champlain islands pretending we were Jason Bourne.  Looking back, we were probably more Maxwell Smart.

I don’t know whether this person was a spy, but he was a lawyer with a Massachusetts law license.  And, in 1952, he was disbarred.  Not for being a Soviet spy, but as a result of having been convicted of two counts of perjury relating to allegations that he was a Soviet spy.

Name the lawyer.

Alger Hiss.  His life story is fascinating and involves Felix Frankfurter, Oliver Wendell Holmes, Whittaker Chambers, Joe McCarthy, and Richard Nixon. Of note, in 1975, the Massachusetts Suprme Court reinstated Hiss to the practice of law.