Five for Friday: #69

69 is about how many games the Sox will win this season if their offense continues at its current anemic pace.  Let the chant begin: Bring back Papi!

Papi

I didn’t post many columns this week, with “many” defined as “any.”  I was in D.C. for ABA Day and let it get the best of my time.  The topics this year: LSC funding and changing the laws to allow the VA to do more to provide homeless veterans with access to legal services.  For more info, e-mail me.  However, I wouldn’t miss the Friday column, so here we go:

Rules

Rules

  • There are none. It’s open book, open search engine, use whatever resource you have.
  • Exception: Question 5.  We try to play that one honest.
  • Team entries welcome.  Creative team names encouraged.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Please e-mail answers to michael.kennedy@vermont.gov
  • Please do not use the “comment” feature to submit your answers
  • I will post the answers Monday, along with the week’s Honor Roll
  • Please consider sharing the quiz with friends
  • Hashtag & share: #fiveforfriday

Question 1

A comment to one of the rules includes the following language.

  • “a lawyer should adopt reasonable procedures, appropriate for the size and type of  firm and practice, to determine in both litigation and non-litigation matters the persons and issues involved. Ignorance caused by a failure to institute such procedures will not excuse a violation of this rule.”

What’s the topic of the rule?

Question 2

Solo just opened a new practice.  Solo used to work for the Alliance Firm.

At new practice, Solo represents Vader in matter against Luke.

Luke asks Alliance for representation.   Prior to asking, Luke has never been represented by Alliance.

Which is most accurate?

  • A.    Alliance may not represent Luke.
  • B.    If Vader is a former client of Alliance, Alliance may not represent Luke
  • C.    If Vader is a former client of Alliance, Alliance may not represent Luke absent Vader’s informed consent.
  • D.    If Vader is a former client of Alliance, Alliance may represent Luke unless (1) the matter is the same as or substantially related to a matter in which it represented Vader; and (2) any lawyer working at Alliance has information about Vader that the rules prohibit from being disclosed.

Question 3

Vermont’s rules prohibit lawyers from asking a person other than to client to voluntarily refrain from giving information to another party.  The rule does not apply if (a) the person is a relative, employee, or agent of the client; AND (b) the lawyer reasonably believes that the person’s interests will not be adversely affected by choosing to refrain from giving the information.

The rule applies to all types of cases. However, the Reporter’s Notes caution lawyers that conduct permitted by the rule:

  • A.  Is discouraged.
  • B.  Adversely reflects on a lawyers’ fitness to practice law if done regularly
  • C.  Might constitute obstruction of justice in a criminal case
  • D.  Likely violates the rule on dealing with the unrepresented person

Question 4

Attorney called me with an inquiry.  I listened, then responded by saying “generally, it’s prohibited if one of your significant motives for doing so is pecuniary gain. Though, if motivated by pecuniary gain, it’s okay if the person is a lawyer or has a close family/personal/professional relationship with you.”

What general topic did Attorney call to discuss?

Question 5

Vincent Gambino meandered back & forth across the line between “ethical” and “not ethical.”  But, talk about tech competence! (positraction is technology!) Plus, in the end, Gambino’s trial skills demonstrated an ability to provide competent & diligent representation.   Question 5 invokes Gambino.

The question:  What color am I?

  • I am a color.  Attorney Gambino asked witness Mona Lisa Vito about a similarity between the 1963 Pontiac Tempest and the 1964 Buick Skylark. Specifically, he asked if both GM models were available in me.  Ms. Vito answered “They were!”

What color am I?

 

 

 

 

 

 

Think Before You Strike

This post is about a federal court order in response to a Motion to Strike a summary judgment motion.  The motion to strike argued that the SJ motion was filed 4 minutes too late.

The order issued in June 2003, but I only learned about this weekend on Twitter.

The order speaks for itself, and is here.

Think before you (move to) strike.

Thank you Keith Lee (@associatesmind) for the tip.  I’m especially grateful in that the tip helped me find Keith’s fantastic website.

Wait What

Monday Morning Answers: #68

Friday’s questions are HERE. Answers follow the Honor Roll.

Congrats to Allison Wannop & Nicole Killoran.  Their responses suggest familiarity with Goldbach’s Conjecture!

Oh, and on this topic, I’m pleased to announce that my good friend Jeff Davis (@jdavismmus) has been named the Official Mathematician of Ethical Grounds.  Think I won’t be able to figure out 33.3% of  a contingent fee?  With JD on the case, think again!

Finally, congrats to Liz Kruska & Wesley Lawrence for recognizing Galen & Meb in Question 4!

Honor Roll

  • Penny Benelli, Esq., Dakin & Benelli
  • Beth DeBernardi, ALJ, VT Dept. of Labor
  • Laura Gorsky, Law Offices of David Sunshine, Newly Minted Passer of the Bar
  • Keith Kasper, Esq., McCormick, Fitzpatrick, Kasper & Burchard
  • Patrick Kennedy, First Brother, Dealer.Com,
  • Nicole Killoran, Esq., Vermont Law School, J.D. Externship Program
  • Elizabeth Kruska, Esq., Law Offices of Elizabeth Kruska
  • Wesley Lawrence, Esq., Theriault & Joslin
  • Jordana Levine, Esq., Marsicovetere & Levine
  • Jeffrey Messina, Esq., Bergeron, Paradis, Fitzpatrick
  • Hal Miller, Esq., First American, Oceanside Branch
  • Kane Smart, Esq., Agency of Natural Resources
  • Allison Wannop, Esq., Vermont Superior Court

ANSWERS

Questions 1 & 2

There is a rule that prohibits an act, but only if the act is done to gain an advantage in a certain type of case.

Your mission: identify the act & the type of case.

  • 1.  Rule 4.5 prohibits presenting, participating in presenting, or threatening to present criminal charges; 
  • 2.  To gain an advantage in a civil case.

Question 3

There is a rule that requires a lawyer to “take steps to the extent reasonably practicable to protect a client’s interests . . ..”

You’ll find the specific language that I quoted in the rule that applies:

  • A.  upon the termination of a representation.  Rule 1.16(d).
  • B.  when the client suffers from a diminished capacity
  • C.   when the client has submitted false testimony or evidence to a tribunal
  • D.   when the client fails to communicate with the lawyer

Question 4

Galen & Meb are contemplating a lawsuit.  They asked Attorney to represent them both in the matter.  Attorney had inkling that a conflict would arise down the road.

Attorney shared his concerns with both Galen & Meb.  Then, sitting with both, Attorney asked Galen & Meb to agree in advance to waive any conflict that might arise.  Both Galen & Meb agreed to waive any future conflict.

Which is most accurate?

  • A.   Attorney violated the rules – VT doesn’t allow advanced waivers
  • B.   Attorney violated the rule on client confidences
  • C.   Attorney violated the rules by failing to provide Galen & Meb an opportunity to seek independent legal advice.
  • D.   If a conflict arises, the rules might require Attorney to withdraw despite the waiver.  Rule 1.7, Comment 22

Question 5

Several years ago, a PRB case resulted in a debate about Rule 4.1.  In particular, the extent to which it applied to undercover investigations supervised by government attorneys.

Which gives me a hook to this question.

Earlier this week, the New York Attorney General announced that an undercover operation had resulted in the arrest of man named “Newman.”  Newman is alleged to have spent many years defrauding businesses by pretending to be an architect.

In a tweet announcing the arrest of the fake architect, New York’s Attorney General acknowledged the obvious Seinfeld connections.  In fact, the NY AG tweeted that the undercover operation had been given a code name that reflected its Seinfeld ties.

What’s the code name?

“Operation Vandelay Industries.”  The New York Times had the story HERE.  As you’ll see, as funny as the reference is, the NY AG didn’t exactly comply with the duties of competence  & diligence when it comes to Seinfeld references. It’s almost like he has no Seinfeld experience whatsoever.  That’s what makes this so difficult.

Thank you Debbie Emerson, my fake doctor, for the tip!!

Vandelay Industries

Five For Friday: #68

Welcome to Friday. #68.

Did you know that 68 is the highest known number that is the sum of EXACTLY TWO different sets of prime numbers?  7+61, and, 31 + 37.  All higher even numbers are sums of THREE different sets of prime numbers. This is exactly why I went to law school.

Rules

  • None. It’s open book, open search engine, open-the-office-door-and-ask-a-colleague
  • For fun, try to play Question 5 honest, but it’s not a requirement this week.
  • Team entries welcome.  Creative team names encouraged.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Please e-mail answers to michael.kennedy@vermont.gov
  • Please do not use the “comment” feature to submit your answers
  • I will post the answers Monday, along with the week’s Honor Roll
  • Please consider sharing the quiz with friends
  • Hashtag & share: #fiveforfriday

Questions 1 & 2

There is a rule that prohibits an act, but only if the act is done to gain an advantage in a certain type of case.

Your mission: identify the act & the type of case.

Question 3

There is a rule that requires a lawyer to “take steps to the extent reasonably practicable to protect a client’s interests . . ..”

You’ll find the specific language that I quoted in the rule that applies:

  • A.  upon the termination of a representation
  • B.  when the client suffers from a diminished capacity
  • C.   when the client has submitted false testimony or evidence to a tribunal
  • D.   when the client fails to communicate with the lawyer

Question 4

Galen & Meb are contemplating a lawsuit.  They asked Attorney to represent them both in the matter.  Attorney had inkling that a conflict would arise down the road.

Attorney shared his concerns with both Galen & Meb.  Then, sitting with both, Attorney asked Galen & Meb to agree in advance to waive any conflict that might arise.  Both Galen & Meb agreed to waive any future conflict.

Which is most accurate?

  • A.   Attorney violated the rules – VT doesn’t allow advanced waivers
  • B.   Attorney violated the rule on client confidences
  • C.   Attorney violated the rules by failing to provide Galen & Meb an opportunity to seek independent legal advice.
  • D.   If a conflict arises, the rules might require Attorney to withdraw despite the waiver.

Question 5

Several years ago, a PRB case resulted in a debate about Rule 4.1.  In particular, the extent to which it applied to undercover investigations supervised by government attorneys.

Which gives me a hook to this question.

Earlier this week, the New York Attorney General announced that an undercover operation had resulted in the arrest of man named “Newman.”  Newman is alleged to have spent many years defrauding businesses by pretending to be an architect.

In a tweet announcing the arrest of the fake architect, New York’s Attorney General acknowledged the obvious Seinfeld connections.  In fact, the NY AG tweeted that the undercover operation had been given a code name that reflected its Seinfeld ties.

What’s the code name?

Thank you Debbie Emerson, my fake doctor, for the tip!!

the-quiz

 

 

 

Guest Pass: Peter Zuk on Data Security

I’m rolling out a new column: Guest Pass.  Like Captain Kirk and the bridge, it’s a column in which I hand over control to a guest.

The first recipient of a Guest Pass is old friend Peter Zuk.  Many of you remember Peter from his title insurance days.  In my early years as disciplinary counsel, Peter was instrumental in helping me to learn the importance of a swift and serious response to a violation of the trust accounting rules.  He also served as an invaluable resource and sounding board when I found myself confronted with trust accounting issues that, having come from the AG’s office, I’d never encountered.

These days, Peter works for Kyocera Document Solutions and serves as a member of one of the Professional Responsibility Program’s hearing panels. Peter’s Guest Pass serves up an important reminder on tech competence & maintaining the security and confidentiality of client data.

Mr. Zuk, you’ve got the bridge.

**********

Data Security: Don’t Forget the Copier

by Peter Zuk

Michael:

I’m selling copiers and secure networks to lawyers many of whom were former title insurance customers.  It’s great to be able to serve my old clientele again.

In working through the purchase of a new copier or multi-function printer (MFP, as we like to say), the question frequently arises as to how to dispose of the old machine.  Big and heavy, they’re impossible to lift and few have a car big enough to haul it to a recycling facility.

Fortunately for most business customers the answer is an easy one:  The new company takes the old copier as a condition of the sale.

But what about law offices?  Is there anything else that they should consider?

The answer is “maybe”.

To understand this answer you have to know how the modern MFP works.

While they don’t look like much, copiers come packed with technology these days.  Part of that technology is a large capacity hard drive.  To provide you with a crisp, clear copy or scanned image, the MFP takes a picture of your document, digitizes it and saves it to an internal hard disk located within the machine.  From there, the internal computer then copies that image from the drive to a photo-statically charged drum which transfers the charged image to paper.

What happens to the image on the hard disk you may be asking?  Fortunately most machines now overwrite the image at the completion of each job obscuring its discovery.

Lawyers may be ok with that level of security.  To be sure though, the prudent attorney may wish to request that the copier company remove the hard disk from the old machine on premises and surrender it to a member of the firm for proper and documentable destruction.  On premises removal of hard disks is becoming requested more and more and should be considered as part of an overall data security plan for the firm.

Firms wishing to do this should notify their leasing company prior to removal as they may ask to be reimbursed for the cost of the hard drive.

******************

Thank you Peter!  For those of you saying to your selves “self, this isn’t a very big deal,” check out this 2010 story from CBS News: Digital Photocopiers Loaded With Secrets

Guest Pass

 

 

Do Nothing – It Might Help

The New York Times recently ran an op-ed by David Leonhardt: You’re Too Busy. You Need A Shultz Hour.

I agree.

In my posts on lawyers helping lawyers, as well as in a column I wrote for the VBA Journal, I alluded to the idea that lawyers can’t best help clients if they’re in need of help themselves.  In other words, access to legal services necessarily includes access to healthy & productive lawyers.

A Shutlz hour might provide all the help you need.  Over at InsideHook, here’s how Rueben Brody put it in his blog post Why Doing Nothing Will Be Your Most Productive Hour Of The Week:

  • “Stepping away as much as possible will make you happier and more productive. I recently gave up Facebook, and it’s given me at least an hour a day back. I’m not necessarily advocating you do that, but I do suggest you adopt the ‘Schultz Hour.'” {sic}.

And there’s the hook to legal ethics: happier, healthier, more productive. It strikes me that happier, healthier and more productive lawyers are better suited to provide competent and diligent representation to clients.

Sometimes the best thing to do is nothing.

Thank you to Ray Massucco for tipping me off to the New York Times piece.  Ray’s a loyal reader and frequent member of the #fiveforfriday Honor Roll.

Shultz

No, that’s not Ray.  That’s George Shultz.

February Bar Exam Results

The Board of Bar Examiners administered the Uniform Bar Exam (“UBE”) on February 21 & 22. It was Vermont’s 2nd administration of the exam since the Supreme Court adopted the UBE in April 2016.  For an explanation of how the UBE works, please see my post on The Vermont Bar Exam.

Forty (40) applicants sat for the February exam.  I am pleased to announce the names of the 21 applicants who passed the February administration of the exam.

I am also pleased to announce that Vermont’s scores on the Multistate Bar Examination (“MBE”) exceeded the national average.  The MBE is what most of you know as “the multiple choice.” Nationally, the average MBE score for the February 2017 bar exam was 134.  As Above The Law reports, it was the lowest average score on the MBE since aggregate results were first collected in 1976.  In Vermont, the average MBE score on the February exam was 139.1.

Bar Exam

 

Monday Morning Answers: #67

This week’s answers come to you live from Boston, MA.  I’m preparing to run the Boston Marathon.  Unlike most marathons, Boston seeds its start.  Faster runners up front, with runners organized, more or less, in numerical order.

It appears that I’m not one of the favorites:

IMG_2118

Friday’s questions are HERE.  The answers follow the honor roll.

HONOR ROLL

  • Evan Barquist
  • Penny Benelli
  • Beth DeBernardi
  • Laura Gorsky
  • Robert Grundstein
  • Anthony Iarrapino
  • Keith Kasper
  • Patrick Kennedy
  • Nicole Killoran
  • Deborah Kirchwey
  • Elizabeth Kruska
  • Cristina Mansfield
  • Hal Miller
  • Jim Runcie

Answers

Question 1

Which is most accurate?  A contingent fee:

  • A.   Must be fair
  • B.   Must be in a writing
  • C.   Must be in a writing signed by the client; See, Rule 1.5(c) and my blog on the basics of contingent fees.
  • D.  Must not be calculated until after the client’s expenses are deducted

Question 2

Attorney called with an inquiry.  I listened. I replied “It doesn’t matter that your client ‘initiated’ it, the rule still applies.  And the fact that you cc’d your client on the e-mail is not the same as consent.”

What topic did Attorney call to discuss?

Communicating with a represented party.  Specifically, Attorney called to discuss whether by cc’ing her client on an email to opposing counsel she had given opposing counsel permission to contact client directly.  I blogged on the issue HERE.

Question 3

Fill in the blank.

In an advisory ethics opinion okaying the use of a particular type of technology, the Philadelphia Bar Association concluded that:

  • CROWDFUNDING sites can be a beneficial source of funds allowing the public to assist in the assertion of valid legal claims that might otherwise go without recourse. Thus, great care should be taken to make sure that the initial development of such sites not affect the ability of subsequent persons to use such a source.”

My blog on crowdfunding is HERE.

Question 4

North Carolina gained national attention for an amendment to its rules that went into effect last month.  If Vermont were to follow the Tar Heel state’s lead, nearly all lawyers would have a duty that, today, only applies to a subset of the bar.  It’s the rule that, right now, relates to:

  • A.  “Admiralty” lawyers being allowed to advertise their area of specialization
  • B.  Conflicts for defense attorneys who move from a public defender’s office to a state’s attorney’s office
  • C.   Television ads by lawyers who represent large classes of plaintiffs
  • D.  A prosecutor’s duty to disclose evidence that tends to negate the guilt of an accused.  

My blog on the issue is HERE.

Question 5

Earlier this week, three news media organizations were named co-winners of the 2017 Pulitzer Prize for Explanatory Journalism.  The organizations were The Miami Herald, The McClatchy Group DC, and The International Consortium of Investigative Journalists.  

The Pulitzer reflected their efforts on reporting a story that involved, among other things, Vladimir Putin, David Cameron, and offshore shell companies. The story came to light after a whistleblower “leaked” 11.5 million documents that a law firm had stored electronically. Review of the documents resulted in the law firm’s name partners being arrested and jailed on suspicion of money laundering.

By what name is the scandal better known?

THE PANAMA PAPERS

Five for Friday: #67

Week 67.  A perfect week to honor the 50th anniversary of 1967’s The Impossible Dream.

Yaz

To the quiz we go!

But first, I interrupt my regularly scheduled blog for an important announcement:

  • Congratulations LAURA GORSKY!!!  Laura is a long-time reader and frequent member of the #fiveforfriday Honor Roll.  She’s been working as a paralegal for David Sunshine for many years.  This week, it was my honor and pleasure to send Laura a letter notifying that she had passed the Vermont Bar Exam. Congrats Laura!

Now, back to my regular programming.

Rules

  • There are none. It’s open book, open search engine, open-the-office-door-and-ask-a-colleague
  • For fun, try to play Question 5 honest, but it’s not a requirement this week.
  • Team entries welcome.  Creative team names encouraged.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Please e-mail answers to michael.kennedy@vermont.gov
  • Please do not use the “comment” feature to submit your answers
  • I will post the answers Monday, along with the week’s Honor Roll
  • Please consider sharing the quiz with friends
  • Hashtag & share: #fiveforfriday

Question 1

Which is most accurate?  A contingent fee:

  • A.   Must be fair
  • B.   Must be in a writing
  • C.   Must be in a writing signed by the client
  • D.  Must not be calculated until after the client’s expenses are deducted

Question 2

Attorney called with an inquiry.  I listened. I replied “It doesn’t matter that your client ‘initiated’ it, the rule still applies.  And the fact that you cc’d your client on the e-mail is not the same as consent.”

What topic did Attorney call to discuss?

Question 3

Fill in the blank.

In an advisory ethics opinion okaying the use of a particular type of technology, the Philadelphia Bar Association concluded that:

  • “_________________ sites can be a beneficial source of funds allowing the public to assist in the assertion of valid legal claims that might otherwise go without recourse. Thus, great care should be taken to make sure that the initial development of such sites not affect the ability of subsequent persons to use such a source.”

Question 4

North Carolina gained national attention for an amendment to its rule that went into effect last month.  If Vermont were to follow the Tar Heel state’s lead, nearly all lawyers would have a duty that, today, only applies to a subset of the bar.  It’s the rule that, right now, relates to:

  • A.  “Admiralty” lawyers being allowed to advertise their area of specialization
  • B.  Conflicts for defense attorneys who move from a public defender’s office to a state’s attorney’s office
  • C.   Television ads by lawyers who represent large classes of plaintiffs
  • D.  A prosecutor’s duty to disclose evidence that tends to negate the guilt of an accused.

 

Question 5

Earlier this week, three news media organizations were named co-winners of the 2017 Pulitzer Prize for Explanatory Journalism.  The organizations were The Miami Herald, The McClatchy Group DC, and The International Consortium of Investigative Journalists.  

The Pulitzer reflected their efforts on reporting a story that involved, among other things, Vladimir Putin, David Cameron, and offshore shell companies. The story came to light after a whistleblower “leaked” 11.5 million documents that a law firm had stored electronically. Review of the documents resulted in the law firm’s name partners being arrested and jailed on suspicion of money laundering.

By what name is the scandal better known?

the-quiz

 

Throwback Thursday: Crowdfunding

Earlier this week, I received my first inquiry on the ethics of crowdfunding litigation.  It reminded me of a blog I posted in January 2016.

The post is HERE and it’s on, you guessed it, the ethics of crowdfunding litigation.  Given the inquiry, I thought I’d revisit the post.

 

Crowdfunding

I’m aware that January 2016 isn’t much of a “throwback.”  But that’s okay.  At GW Law, I was the quarterback on O.P.P., the first law school team to win the “grad school” division of GW’s IM flag football league.  We advanced to the Final Four where we were utterly smoked in the semis by the team that won the “staff” division. In any event, back then I wasn’t known for throwing deep; pinpoint accuracy was my thing.   So, a throwback of a mere 14 months might not be much of a throw, but the topic is relevant. So, I consider it the equivalent of an 11-yard out that keeps the chains moving.