Monday Morning Answers

Congrats to my mom! I had a feeling that Question 5 would draw her into the fray . . . and it did.  As a result, her first ever appearance on the Honor Roll.

You see, when I was a kid, my mom was huge fan of the Cincinnati Reds.  So much so that we’d go see Reds when they played in Montreal and would kind of stalk look for the players in the restaurant at the team hotel.  One time, my mom plopped herself down in a booth with Joe Morgan, Sparky Anderson, and Johnny Bench and asked for autographs.  It was either Anderson or Bench who replied “no.”  When my mom asked why – “I don’t give autographs to people who are sitting on my jacket.”

I’ve never seen my mom move so quickly as she did to get off that jacket.

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

Honor Roll


Question 1

Good to know for all lawyers, but perhaps particularly relevant to Vermont lawyers who visit Canada .  .  .  what’s at the heart of the legal ethics issue related to border crossings that recently has drawn attention from bar counsel types?

Question 2

Which is most accurate?

The duty to maintain the confidentiality of information relating to the representation of a client:

  • A.   Applies only to information acquired from the client
  • B.   Applies only to a client’s “confidences and secrets” that would prove embarrassing or detrimental if disclosed
  • C.   Does not apply to information that is in a public record
  • D.  Applies to information acquired before the representation began and after it ended.  See, Rule 1.6, Reporter’s Notes, (The rule “imposes a duty of confidentiality concerning information relating to the representation regardless of whether it is acquired before or after the relationship existed.”)

I’ve blogged often on Rule 1.6 and how it applies to “information relating to the representation,”  whatever the source.  In that sense, the is much broader than the privilege. See, Comment [3].

Further, Rule 1.6 refers to “information relating to the representation.” It does not mention “confidences and secrets.”  We dropped that language when we switched from the Code to the Rules in 1999.

Finally, as I’ve often blogged, Rule 1.6 includes several exceptions to the prohibition against the unauthorized disclosure of information relating to the representation.  “It’s public record” is NOT one of them. Indeed, when analyzing whether a lawyer violated Rule 1.9(c) by disclosing information related to the representation of a former client without the former client’s consent,  courts around the country have almost uniformly held that the fact that information is public record does not mean that it’s “generally known.”

Question 3

Which is most accurate?  In Vermont,

  • A.   All conflicts are waivable
  • B    All conflicts are waivable, but must be waived in writing
  • C.   If Lawyer currently represents A, Lawyer may not represent B in a matter adverse to A, even if the two matters are unrelated and both A & B give informed consent.
  • D.   If Lawyer currently represents A, Lawyer is not necessarily precluded from representing B in a matter where B is adverse to A.  See, Rule 1.7Rule 1.7.

Here, A&B are clearly wrong.  As Rule 1.7(b) makes clear, not all conflicts are waivable.

C is wrong because Lawyer may continue if Lawyer complies with Rule 1.7(b).

D is most accurate. It’s actually mentioned in the last sentence to Comment 6, the first sentence to Comment 24, and addressed throughout each.

That being said – THINK TWICE. While A & B might be happy up front, if things go bad later on, they’re going to look for someone to blame and Lawyer makes a convenient target. Also, Rule 1.7(b)(3) is quite clear, as is Rule 1.7(b)(1).  With respect to the latter, what seemed “reasonable” at the time, might not seem so reasonable when examined in the harsh light of a disciplinary investigation.

Question 4

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

  • “here’s the deal: you can’t unilaterally resolve the dispute.  if the dispute involves a client & you, you’re supposed to suggest means for prompt resolution.  if it’s a dispute between your client and a third person, a comment to the rule indicates that you may consider filing an action asking a court to resolve the dispute.”

In that my response referred to the Rules of Professional Conduct, what is the most likely subject of the “dispute” that Attorney called to discuss?

Disputed property, likely funds.  The dispute could be between client & third person, or client and lawyer.  See, Rule 1.15(e), Comment [4].

Question 5

Attorney John Dowd is part of President Trump’s legal team.  Nearly 30 years ago, he authored the famed “Dowd Report;” a report that led to a star pro athlete effectively being “disbarred” from the athlete’s sport.  Ever since, the athlete has sought reinstatement.

Two years ago, Dowd appeared on a radio station and said that, in the 70’s, the athlete had sex with minors.   Last year, the athlete sued Dowd for defamation.  Neither Dowd’s comments nor the lawsuit generated much media coverage until this week . . . when Dowd’s defense team introduced a sworn statement from a woman stating that she had sex with the athlete when she was 14 years old, and he was 34.

Identify the athlete who, now, appears unlikely ever to be reinstated from the “disbarment” that followed the Dowd Report.

Pete Rose.

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