Five for Friday #99

Welcome to #99!

Before I get down to business, let’s talk about the weather.   Yes, it’s cold.  But, don’t worry: at least it’s a dry cold.

Now, let’s talk about 99.

Regular readers might expect me to use this space to wax poetic about Prince.

Wrong.

Surely, by now you know that I’m incapable of waxing poetic about anything.  And stop calling me Shirley.  Further, I did a Prince-themed quiz upon his untimely passing.

Instead, I’m going to take the easy way out, similar to what I did this week with my regular blog posts.  I’m going to use the fact that this column coincides with the year’s end to recap 2017’s most-read #fiveforfriday quizzes.

In reverse order:

Stones

#3:  Beatles v. Stones.  Last spring marked the 50th anniversary of the U.S. release of Sgt. Pepper’s Lonely Hearts Club Band.  In the days leading up to the anniversary, several readers asked if I planned to use the #fiveforfriday column to honor The Beatles and the album.   Ummm, no.  Instead, I used the occasion to honor The World’s Greatest Rock & Roll Band:  The Rolling Stones.  Pandemonium ensued, with chronic cases of Beatle-mania causing otherwise competent members of this bar to cite the column as proof that I should be disbarred.  The quiz is here, the answers here.

Swift

#2: Bar Counsel is a Swiftie The 2nd most-read #fiveforfriday quiz in 2017 was my confession to being a Taylor Swift fan. (it also included an ode to Tom Petty).  If being a Swiftie is a crime, I have three words for you:  guilty as charged!  The post generated a significant number of responses.  Some were Mean, leading me to conclude that some of my readers . . . well, let’s just say that We Will Never Ever Get Back Together.  But, I didn’t let the Bad Blood bother me, telling myself “Self, just Shake It Off.”  Not to mention, most responses were positive, with readers recognizing that the confession demonstrated my Style.  Or maybe they were just trying to curry favor in case their names ever end up in the Blank Space on a disciplinary complaint that lands on my desk.  The quiz is here, the answers here.

MY COUSIN VINNY, Mitchell Whitfield (far left), Ralph Macchio (second from left), Joe Pesci (third f

#1: My Cousin Vinny.   If there’s one thing that Vermont lawyers know about cross-examining witnesses, it’s that a jury simply cannot trust someone who claims to have cooked grits in 5 minutes when it takes the entire grit-eating world 20!  What, were those magic grits?? Oh, and Jerry Gallo? He’s dead!   The My Cousin Vinny-themed quiz got over 400 clicks on the weekend it was posted.  Making it, by far, the most read of the 2017 #fiveforfriday quizzes. Here’s to Positraction, Metallic Mint Green, and Utes! The quiz is here, the answers here.

Thanks for reading and participating!

Onto the 99th quiz!

Rules:

  • None. You’re not even required to answer every question. And you don’t need to go 5 for 5 to make the honor roll!
  • Team entries welcome.  (think: “wisdom of crowds”)
  • Creative team names encouraged & appreciated.
  • Please consider sharing the quiz with friends & colleagues, even non-lawyers!
  • social media hashtag is #fiveforfriday
  • E-mail entries to michael.kennedy@vermont.gov
  • I’ll post the answers sometime early next week
  • REMEMBER:  Folks – in the spirit of celebrating a new year, these questions are FOR FUN!

Question 1

Regular readers know that I’m obsessed with fond of “tech competence.”  Today, one of the final days of 2017, a search on “tech competence” produces theses posts.

Harken, for a moment, back to the final days of 1999.  At the time, “tech competence” was, in a way, very much in the news.  What was the name given to the tech issue that many expected to cause widespread calamity as soon as ’99 ended?

Question 2

In ’99, a TV show that focused on the law firm Cage & Fish won the Primetime Emmy for Outstanding Comedy.  The main character joined the firm after leaving her previous job as a result of being the victim of sexual harassment.  On her first day at the new job, she was stunned to learn that her ex worked at the firm too.

In a poll conducted by the ABA in 2010, the main character was named one of the top 25 “greatest fictional lawyers not named Atticus Finch,” and was the highest-ranked female lawyer on the list.

Name her.

Question 3

In a previous quiz, I included a question on Jay-Z’s 99 Problems.  Believe it or not, and having mentioned The Beatles, in 2004, Danger Mouse released The Grey Album.  It was a mashup of  songs from The Beatles White Album with songs from Jay-Z’s Black Album. Danger Mouse mashed 99 Problems with Helter Skelter.

Helter Skelter reminds me of a real-life attorney who some might say was “ethically challenged.”

Irving Kanarek represented a notorious client in a criminal trial that began in 1971.  The client was charged with conspiracy to commit multiple murders.  During the trial, Kanarek:

  • objected 9 times during the prosecutor’s opening statement;
  • was found in contempt 4 times;
  • spent 2 nights in jail for contempt;
  • gave a 7 day closing argument; and
  • had the judge tell him he was “totally without scruples, ethics, and professional responsibility.”

Who was Kanarek’s notorious client?

Question 4

On behalf of Client, Attorney sent a letter to Potential Defendant.   Attorney received a response that included the following statements:

I was dreamin’ when I wrote this
So sue me if I go too fast
But life is just a party
And parties weren’t meant to last

Who is Potential Defendant, and what does Potential Defendant intend to do this weekend?

Question 5

One of 1999’s most notable events was a 5-week trial in which a lawyer was charged with perjury and obstruction of justice.  The lawyer was acquitted of both charges.  The vote on the perjury charge was 55-45.  The vote on the obstruction charge was 50-50.

Name the lawyer.

Bonus: name the judge who presided over the trial.

Finally, as a blogger who often writes about the duty of competence, it’d be incompetent of me to post a 99-themed blog without mentioning one of the most gloriously incompetent tv characters of all time, Maxwell Smart, and his partner, Agent 99.

Smart & 99.jpg

 

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#1: W.I.N. Your 3 Feet of Influence

This week, I’m counting down the blog posts that were the most-read in 2017.  So far,

Which leaves only 1 more.

Civility

I posted the year’s most-read blog in July.  Ever since, it has remained popular, and about the only post that people mention to me in person. Without further adieu, the post that readers read more than any other in 2017 was a post on civility: W.I.N. Your 3 Feet of Influence.  

Remember: you have a chance to “WIN” every interaction you have.  At work, at home, everywhere you go.  The more interactions you “WIN,” the better we’ll all be.

Thank you for reading this year.   I wish you a peaceful 2018!

And don’t forget that tomorrow is Friday.   Which means there’s one final #fiveforfriday quiz in 2017.  Get in the game!

 

 

#2 in 2017: Hey Lawyers! STFU!

Maybe 2017 will go down as the year that we resolved (for once and for all) that “public record” does not equal “generally known.”

STFU

I’m counting down this blog’s most-read posts of 2017.  So far:

Now, coming in at #2 is my post on client confidences: Hey Lawyers! STFU!  It’s a post in which I gently reminded lawyers that things like “but it wasn’t privileged” or “but it’s public record” are not exceptions to:

  • Rule 1.6’s prohibition against disclosing information related to a representation;
  • Rule 1.9(c)(1)’s prohibition against using information related to the representation of a former client to the former client’s disadvantage; or,
  • Rule 1.9(c)(2)’s prohibition against revealing information related to the representation of a former client.

After I posted the STFU blog, I followed up with this post on the “generally known” exception in Rule 1.9(c)(1). Read together, the two posts are best summarized by Thomas Edison:

“You will have many opportunities
to keep your mouth shut.
You should take advantage
of everyone of them.”
Thomas Edison

 

#3 in 2017: We can’t let perfect be the enemy of good.

This week I’m counting down the 5 most-read posts of the year.  So far,

 

Starfish

The third most-read post of the year was this post on authorizing (and licensing) paralegals to perform tasks that, for now, only lawyers are authorized to perform. It’s a post in which I urge the profession not to let perfect be the enemy of the good and, more specifically, to consider whether licensing paralegals is much simpler than we’ve made it.

The post includes one of my favorite anecdotes. It’s an anecdote that reminds me of how the profession attempts to tackle the issues it confronts. I often wonder if the profession is the “man on the beach” when, what we really ought to be, is a child smiling with hope. I’ll leave you with that anecdote.

*********

“One of my priest’s favorite sermons centers on Loren Eisley’s The Starfish Story.  Here’s the story:

One day a man was walking along the beach when he noticed
a boy picking something up and gently throwing it into the ocean.

Approaching the boy, he asked, “What are you doing?”

The youth replied, “Throwing starfish back into the ocean.
The surf is up and the tide is going out.  If I don’t throw them back, they’ll die.”

“Son, the man said, “don’t you realize there are miles and miles of beach and hundreds of starfish?
You can’t make a difference!”

After listening politely, the boy bent down, picked up another starfish,
and threw it back into the surf.  Then, smiling at the man, he said
“I made a difference for that one.”

2017’s Most Read: Conflicts & Lawyer Wellness

Like any self-respecting publication, Ethical Grounds will spend the final days of 2017 recapping the year’s most popular posts.  And, by “popular”, I mean “most read.”

Oddly, a single post was the most read every month from April thru November, and, by far, the most read of the year.  It was my post on Alternative Litigation Financing.  Now, I pay for the free version of WordPress, so I don’t have advanced analytics.  So, I’m only guessing when I say that it’s odd that the post was the most read for the year.  Still, here’s my guess.

I posted it in December 2016.  It went virtually unread until April, when its popularity skyrocketed.  Nothing about the topic of Alternative Litigation Financing changed appreciably between December and April.  However, in April 2017, the analytics reflect that hits on the post from searches for “ALF” went through the roof.   Something tells me that most who landed on the post did so not intending to reada about the legal ethics of Alternative Litigation Financing.

At the end of the November, I removed the “ALF” tag.  The result: almost nobody has read the post this month.  This tends to confirm my suspicion that the thousands of readers who ended up landing on the post didn’t really want to be there.

The upshot: while it was read 5 times more often than any other post this year, I’m not counting it in the Top 5.

Now, without further adieu, let’s get to the Top 5.

IMG_2644.JPG

Coming in at #5, my post Lateral Transfers: Is VT’s Rule too strict? Part 2.  The post addresses the fact that Rule 1.10 operates to disqualify an entire firm in certain situations in which a conflict follows a new hire from the new hire’s old firm.  Give it a read.  Earlier this month, the Professional Responsibility Board voted to recommend that the Vermont Supreme Court amend Rule 1.10  to allow nonconsensual screening even if a new hire participated personally & substantially in a matter in which the new firm represents a client who is adverse to a client represented by the new hire’s old firm.

Wellness

Next, the 4th most read post of the year was Lawyers Helping Lawyers – Keep it on the front burner.   The profession’s struggle with substance abuse & mental health issues is one that we must keep talking about.  As I’ve often written, it’s an access issues.  To ensure access to legal services, we must do our best to ensure access to a full complement of healthy & competent lawyers.

Since I posted the blog, the National Task Force On Lawyer Being issued a report entitled The Path To Lawyer Well-Being: Practical Recommendations for Positive Change. In response, the Vermont Supreme Court has approved the Chief Justice’s idea to create a commission to address lawyer well-being in Vermont.  You should expect to hear more about the commission in the near future. In short, it will consist of representatives from each of the stakeholder groups identified in the report from the National Task Force.  The stakeholders will analyze the recommendations aimed at them and report back to the full commission.

I’ll post #3 and #2 tomorrow.

Thanks for reading this year!

Tuesday Morning Answers – Holiday Quiz

You know this blog has established itself when, on Christmas Day, my mom somewhat ruefully notes that she wishes she hadn’t given me a Runner’s World calendar, but a Taylor Swift one instead.

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

Swift Christmas

Honor Roll

Answers

Question 1

Attorney represents Egg and Nog.   They’ve been charged with criminal conspiracy to face unafraid the plans that they’d made.

Undeterred by Comment 23 to Rule 1.7 (conflicts), but motivated by a desire to comply with Rules 1.1 (competence) and 1.3 (diligence), Attorney tracks down a key witness: Parson Brown.  Parson Brown agrees to an interview, but only if it’s outside.

What’s Parson Brown made of?

Snow.  Parson Brown is a character in Walking in a Winter Wonderland.

Question 2

My posts on legal ethics & marijuana are here.

Having secured an acquittal for Egg & Nog by successfully employing the “but it was just a dream by the fire!” defense, Attorney is back at it: representing new co-defendants.   Tommy and Marin have been charged with possession of extraordinarily large quantities.

Upon concluding an initial interview with Tommy and Marin, Attorney called me with an inquiry about Attorney’s duties under Rule 1.14 (client with diminished capacity.) Here’s our exchange:

  • Attorney – Mike, i don’t want my license to go up in smoke.  I’ve got co-defendants, Tommy & Marin.  Tommy thinks that Santa is a band! When I told him Santa isn’t a band, he thought maybe Santa was a Motown singer.  When I asked him how he didn’t know who Santa is, he replied ‘yeah, well, I’m not from here, man. Like, I’m from Pittsburgh, man. I don’t know too many local dudes.’
  • Me – Interesting.
  • Attorney:  And Marin isn’t much better.  He kinda knows who Santa is.
  • Me – Kinda?
  • Attorney.  Yeah.  He thinks that Santa and Mrs. Claus used to live in his neighborhood before getting evicted and  moving up north to start a commune with some of their friends.  Marin told me that Mrs. Claus used to make the best brownies in the neighborhood. He also thinks that Santa shut down the commune so as not to risk getting stopped at the border and found with the ‘magic dust’ that he feeds to his reindeer.

Who are Attorney’s clients better known as?

Cheech & Chong.  See, Santa Claus and his Old Lady

Question 3

Lawyer represents Client.  Client is charged with kidnapping Clarice and assaulting a gallant suitor who attempted to free her.  Client is also charged with the felony murder of one Yukon Cornelius.  Yukon is presumed dead.  He disappeared off a cliff during the daring rescue mission of Clarice and her suitor that Yukon carried out with an heretofore incompetent dentist.

But lo’ and behold, the prosecutor learns that Yukon is alive and well!  As required by Rule 3.8(d), prosecutor notifies Lawyer and, then, as required by Rule 3.1, dismisses the felony murder charge.

Lawyer works diligently to convince prosecutor to drop the remaining charges.  After all, despite a monstrous reputation, Client is winning in the court of public opinion.  If only because Client’s physical stature comes in handy during the holidays.

Who is Lawyer’s client?

Bumbles bounce! Bumble the Abominable Snow Monster

Bumble

Question 4

Attorney represents Michael Scott’s co-workers.  They have filed a civil suit against him & Dunder Mifflin.  The suit makes various tort claims related to the undisputed fact that, in the middle of the The Office’s holiday party, Michael unilaterally changed its format.

Attorney is mindful of the duties imposed by Rule 1.8(g). (aggregate settlement in a matter involving 2 or more clients.)

In any event, the party format was advertised as, and actually began as, “Secret Santa.” Upset with how things were going, Michael switched it to a different format.

Name the format.

Yankee Swap

Gifts

Question 5

Lawyer called me with an inquiry.  Lawyer’s questions related to Rule 1.18 (prospective clients) and Rule 3.1 (meritorious claims).  Per Lawyer:

  • Lawyer:  Mike, last week, I met with Cady Heron.  She wants to sue to expand the holiday season so that it officially begins on October 3.
  • Mike:  Wait.  What?
  • Lawyer:  Umm, exactly.  She said that’s the day that her crush, Aaron, first talked to her.
  • Mike:  Wow. I don’t know what to say.
  • Lawyer:  Well, maybe I’ll just ignore her.  I mean, she’s not very nice.  Plus, I refused to take a retainer.
  • Mike:  Because her claim is frivolous?
  • Lawyer: No.  Because she wanted to pay by credit card and I told her that I don’t take The Plastic.

Sadly, this scene didn’t make it past the cutting room floor.  Had it, I wouldn’t be here today.

Name the movie.

Mean Girls

October 3rd.jpg

Five for Friday: Holiday Version #3

Happy Holidays to all!

Whether at extended family gatherings over the next week, or throughout 2018, you could do much worse than resolving to W.I.N. your 3 feet of influence.

For prior versions of the holiday quiz, here are quizzes from 2015 and 2016.

Onto the quiz!

Holiday Season.jpg

Rules

  • None. You’re not even required to answer every question. And you don’t need to go 5 for 5 to make the honor roll!
  • Team entries welcome.  (think: “wisdom of crowds”)
  • Creative team names encouraged & appreciated.
  • Please consider sharing the quiz with friends & colleagues, even non-lawyers!
  • social media hashtag is #fiveforfriday
  • E-mail entries to michael.kennedy@vermont.gov
  • I’ll post the answers sometime early next week
  • REMEMBER:  Folks – in the spirit of holiday cheer, these questions are FOR FUN!

Question 1

Attorney represents Egg and Nog.   They’ve been charged with criminal conspiracy to face unafraid the plans that they’d made.

Undeterred by Comment 23 to Rule 1.7 (conflicts), but motivated by a desire to comply with Rules 1.1 (competence) and 1.3 (diligence), Attorney tracks down a key witness: Parson Brown.  Parson Brown agrees to an interview, but only if it’s outside.

What’s Parson Brown made of?

Question 2

My posts on legal ethics & marijuana are here.

Having secured an acquittal for Egg & Nog by successfully employing the “but it was just a dream by the fire!” defense, Attorney is back at it: representing new co-defendants.   Tommy and Marin have been charged with possession of extraordinarily large quantities.

Upon concluding an initial interview with Tommy and Marin, Attorney called me with an inquiry about Attorney’s duties under Rule 1.14 (client with diminished capacity.) Here’s our exchange:

  • Attorney – Mike, i don’t want my license to go up in smoke.  I’ve got co-defendants, Tommy & Marin.  Tommy thinks that Santa is a band! When I told him Santa isn’t a band, he thought maybe Santa was a Motown singer.  When I asked him how he didn’t know who Santa is, he replied ‘yeah, well, I’m not from here, man. Like, I’m from Pittsburgh, man. I don’t know too many local dudes.’
  • Me – Interesting.
  • Attorney:  And Marin isn’t much better.  He kinda knows who Santa is.
  • Me – Kinda?
  • Attorney.  Yeah.  He thinks that Santa and Mrs. Claus used to live in his neighborhood before getting evicted and  moving up north to start a commune with some of their friends.  Marin told me that Mrs. Claus used to make the best brownies in the neighborhood. He also thinks that Santa shut down the commune so as not to risk getting stopped at the border and found with the ‘magic dust’ that he feeds to his reindeer.

Who are Attorney’s clients better known as?

Question 3

Lawyer represents Client.  Client is charged with kidnapping Clarice and assaulting a gallant suitor who attempted to free her.  Client is also charged with the felony murder of one Yukon Cornelius.  Yukon is presumed dead.  He disappeared off a cliff during the daring rescue mission of Clarice and her suitor that Yukon carried out with an heretofore incompetent dentist.

But lo’ and behold, the prosecutor learns that Yukon is alive and well!  As required by Rule 3.8(d), prosecutor notifies Lawyer and, then, as required by Rule 3.1, dismisses the felony murder charge.

Lawyer works diligently to convince prosecutor to drop the remaining charges.  After all, despite a monstrous reputation, Client is winning in the court of public opinion.  If only because Client’s physical stature comes in handy during the holidays.

Who is Lawyer’s client?

Question 4

Attorney represents Michael Scott’s co-workers.  They have filed a civil suit against him & Dunder Mifflin.  The suit makes various tort claims related to the undisputed fact that, in the middle of the The Office’s holiday party, Michael unilaterally changed its format.

Attorney is mindful of the duties imposed by Rule 1.8(g). (aggregate settlement in a matter involving 2 or more clients.)

In any event, the party format was advertised as, and actually began as, “Secret Santa.” Upset with how things were going, Michael switched it to a different format.

Name the format.

Question 5

Lawyer called me with an inquiry.  Lawyer’s questions related to Rule 1.18 (prospective clients) and Rule 3.1 (meritorious claims).  Per Lawyer:

  • Lawyer:  Mike, last week, I met with Cady Heron.  She wants to sue to expand the holiday season so that it officially begins on October 3.
  • Mike:  Wait.  What?
  • Lawyer:  Umm, exactly.  She said that’s the day that her crush, Aaron, first talked to her.
  • Mike:  Wow. I don’t know what to say.
  • Lawyer:  Well, maybe I’ll just ignore her.  I mean, she’s not very nice.  Plus, I refused to take a retainer.
  • Mike:  Because her claim is frivolous?
  • Lawyer: No.  Because she wanted to pay by credit card and I told her that I don’t take The Plastic.

Sadly, this scene didn’t make it past the cutting room floor.  Had it, I wouldn’t be here today.

Name the movie.

 

 

 

 

 

Flashback: is a self-represented lawyer subject to the “no-contact” rule?

Rule 4.2 prohibits a lawyer from communicating with a represented person on the subject of the representation without the consent of the person’s lawyer.  Generally, the rule does not prohibit represented persons from direct communication.

So, imagine this scenario:

  • Attorney self-represents in a divorce;
  • Lawyer represents Spouse.

Can Attorney communicate about the divorce with Spouse absent Lawyer’s consent?

For an analysis, flashback to this blog post from December 2016.

SRL

If these allegations prove true, that was definitely wrong.

Many lawyers have appeared in the famed Question 5 to the #fiveforfriday legal ethics quiz.  Most of them have been fictional.

Other lawyers have appeared in the equally as famous Was That Wrong? column.  Not one of them has been fictional.

Richard Luthmann is well on his way to becoming the first lawyer to appear in both.

In August, Luthmann’s Game of Thrones inspired demand for “trial by combat” earned him a spot in this #fiveforfriday quiz.  This week, he’s back in the news.

Suffice to say, when you’re a lawyer, it’s never a good sign when the  U.S. Attorney issues a press release announcing that you’ve been charged as a conspirator in a scheme to commit fraud, kidnapping, and extortion. The story has been covered by The ABA Journal, Spectrum News, and SILive.

Here’s a quick outline:

  • Luthmann and others are alleged to have conspired to defraud purchasers of scrap metal.
  • The allegation is that the conspirators intended to sell scrap metal in containers that contained very little scrap metal.
  • It is also alleged that the conspirators planned to “use organized crime connections to settle any disputes that arose with disgruntled customers.”

I’ve never been a federal prosecutor, a scrap metal purveyor, or a mobster.  But I’m pretty sure those “settlements” aren’t the type that most lawyers are used to.

In any event, from #fiveforfriday to federal indictment in the span of 4 months is unprecedented.   Was that wrong? Only time will tell.

Archer

 

Can’t keep quiet? Try harder.

“You will have many opportunities
to keep your mouth shut.
You should take advantage
of everyone of them.”
Thomas Edison

I’ve blogged often on client confidences.  Today’s title is the kinder & gentler version of October’s Hey Lawyers! STFU!!!  

Last week, the ABA’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 479: The “Generally Known Exception to Former-Client Confidentiality.”   The ABA Journal’s story on the opinion is here.

Before I share (precious few) thoughts from the new advisory opinion, here’s a quick refresher:

  • Rule 1.6 prohibits a lawyer from disclosing information relating to the representation of a client;
  • Rule 1.9(c) extends the prohibition to “former clients;” and,
  • Rule 1.9(c)(1) states that a lawyer “shall not . . . use information relating to the representation to the disadvantage of a former client except as these rules would permit, or when the information has become generally known.” (emphasis added).

As I mentioned in Hey Lawyers! STFU!!!:

  1. The rules do not permit a lawyer to use information to the disadvantage of a former client merely because the information is “public record.”
  2. Information that is “public record” is not necessarily “generally known.”

So, what is “generally known?”  That’s where the ABA Opinion comes in.

First, however, let’s pause for quick public service announcement:

  • if you’re looking for guidance on when it’s ok to use a former client’s information to the former’s client disadvantage, well, think about that for a moment.

Now, back to our regularly scheduled blog.

The formal opinion analyzes the issues far better than I could.  (plus, I’m late for a lunch meeting) So, I’ll leave you with its conclusion.

  • “A lawyer may use information that is generally known to a former client’s disadvantage without the former client’s informed consent. Information is generally known within the meaning of Model Rule 1.9(c)(1) if it is widely recognized by members of the public in the relevant geographic area or it is widely recognized in the former client’s industry, profession, or trade. For information to be generally known it must previously have been revealed by some source other than the lawyer or the lawyer’s agents. Information that is publicly available is not necessarily generally known. “

As always, let’s be careful out there.

Be Quiet