Monday Morning Answers: Week 60

What a difference a week makes.

Friday’s quiz is HERE.  The answers follow the Honor Roll.

HONOR ROLL

  • Matt Anderson, Esq.
  • Beth DeBernardi, Esq.
  • Robert Grundstein, Esq.
  • Keith Kasper, Esq.
  • Patrick Kennedy, First Brother
  • Brian Martin, Esq.
  • Hal Miller, Esq.
  • Rachel Thompson, VLS Class of 2017
  • Peter Zuk, Hearing Panel Member, Professaional Responsibility Board

ANSWERS

Question 1

Lawyer called me with an inquiry.  She is closing her practice and has $1500 in trust.  She asked what to do with the $1500.  What was my likely response?

  • A.  It depends.  Do you know whose money it is?
  • B.  The rules require you to keep the funds in trust, even after your office is closed, until they’re disbursed to a client.
  • C.  You should remit the funds to the Vermont Bar Foundation.
  • D.  You should remit the funds to the State Treasurer’s Unclaimed Property Division

This is a problem.  It is not uncommon for lawyers to have unexplained funds in their trust accounts.  The reasons vary:  wire fees that weren’t accounted for, regular failure to withdraw their own fees (aka “commingling”), or simple accounting mistakes.

This is not an exaggeration: the inability to identify the owner of funds held in trust is a violation of the Rules of Professional Conduct.  Why?  Think about it.  What goes into trust?  That’s right – funds held in connection with a representation. A lawyer has a duty to safeguard those funds.  My position is that “safeguarding” includes knowing how much money is in trust and to whom it belongs.

D was a popular answer.  Yes, there’s an advisory ethics opinion that indicates that unclaimed funds remit to the state.  However, unclaimed funds are funds for which the owner is known, but cannot be found.  

Think of it this way: many of you remember the long list of names that the State Treasurer used to publish in newspapers.  If your name was on the list, you had unclaimed property.  Lawyers cannot simply send the Treasurer money along with a note that says “not sure whose this is, but I had it in trust.”

Question 2

Attorney called me with an inquiry. Attorney asked about entering into “a nonrefundable, flat fee agreement.”  What was my likely response?

  • A.  Don’t.  The fee agreement violates the Rules of Professional Conduct
  • B.  To comply with the rules, you must confirm the agreement in writing.  See, Rule 1.5(f).
  • C.  To comply with the rules, you must confirm the agreement in a writing that is signed by Client
  • D.  To comply with the rules, the agreement must be in writing and you must deposit the fee into a pooled interest-bearing trust account.

Question 3

When do the rules require banks to provide notification to Disciplinary Counsel?

  • A.  Whenever a trust account check is presented against insufficient funds. See, Rule 1.15B(d)
  • B.  Whenever a trust account check is presented against insufficient funds, but only if the bank honors the check.
  • C.   A . . . and whenever a lawyer authorizes an ACH transaction to or from a trust account.
  • D.  B . . . and whenever a lawyer is issued a debit card that is tied to a trust account.

Question 4

I presented at a CLE.  I said that there are 4 situations in which something is allowed:

“Generally, THIS is allowed when THAT results from

  • A.  a personal interest of the lawyer; or
  • B.  work in which the lawyer participated personally and substantially while at a different firm; or
  • C.  work in which the lawyer participated personally and substantially while working as a law clerk or judge; or
  • D.  work the lawyer did prior to transitioning between government work & private practice

For 1 point each, identify THIS and THAT.

SCREENING is allowed when A CONFLICT OF INTEREST results from any of the listed situations.  I gave credit for “continued representation” in that the firm can continue, even though the conflicted lawyer cannot.

Question 5

I often say that my job isn’t like professional responsibility class in law school: most complaints are mundane.  I’ve yet to receive a complaint that alleges that a lawyer knows where a dead body is, but won’t tell anyone.

Speaking of which, last week I screened a complaint. It included allegations against two attorneys: Roy Foltrigg and Regina Love.

  • The complaint described “Reverend Roy” Foltrigg as an “ambitious, sleazy, and vain US Attorney who will not hesitate to engage in unethical or illegal conduct to advance his ambitions.”
  • The complaint described “Reggie” Love as “recovering addict who is nice & does a lot of pro bono work, but who doesn’t always follow the ethics rules, and who has more street smarts than law smarts.”

Wait..was I screening a complaint? No, I think I must have been either reading a book or watching a movie.  Yes, I was.

What book/movie?

The Client.

the-client

 

 

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