Monday Morning Answers #114

Welcome to a beautiful Monday morning!  No need for California Dreamin’ on a day like this.

Image result for mama's and papa's monday monday

Friday’s questions are here.  Today’s answers follow the honor roll.

Honor Roll

  • Karen Allen
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, John Marshall Law School
  • Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labor
  • Cary DubeBergeron, Pardis, Fitzpatrick
  • Robert Grundstein
  • Anthony IarrapinoWilschek & Iarrapino
  • Aileen Lachs, Mickenberg Dunn Lachs &Smith
  • Kevin LumpkinSheehey, Furlong & Behm
  • Pam MarshMarsh & Wagner
  • Lon McClintockMcClintock Law Offices
  • Jack McCullough, Vermont Legal Aid, Mental Health Law Project
  • Hal Miller, First American
  • Herb Ogden
  • Jim Runcie, Ouimette & Runcie


Question 1

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

  • “the first thing the rule says is that you’re supposed to try to maintain as a normal a client-relationship as possible.”

Given my response, it’s most like that Attorney called to discuss a client:

  • A.  who had filed a disciplinary complaint against Attorney.
  • B.  who informed Attorney that client will lie at trial.
  • C.  who informed Attorney that client is seeking a 2nd opinion.
  • D.  whose capacity to make adequately considered decisions in connection with the representation is diminished. See, Rule 1.14

Kind of a trick question given that the intro included a paragraph on Rule 1.14

Question 2

Which phrase doesn’t belong with the others?

  • A.  Former client.
  • B.  Same or Substantially Related.
  • C.  Materially Adverse.
  • D.  Information Related to the Representation.

A, B,  and C are phrases that appear in Rule 1.9, the rule on former client conflicts.  D is a phrase that appears in Rule 1.6, the rule on confidentiality.

Question 3

Under the Rules of Professional Conduct, which is treated differently than the others?

  • A.  whether to settle.
  • B.  whether to depose a particular witness.
  • C.  whether to file a motion to dismiss.
  • D.  Trick question. The rules treat each the same.

See, Rule 1.2(a).  A lawyer shall abide by a client’s decision whether to settle.  The means by which the objectives of a representation are pursued (B & C) are generally left to the lawyer, in consultation with the client.

Question 4

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

  • “Generally, it’s okay to advise a client to do it, as long as (1) it doesn’t rise to the level of spoliation, or otherwise impermissibly alter, conceal, or destroy evidence; and (2) you and client don’t deny it exists if asked to produce it in discovery.”

Given my response, it’s most likely that Lawyer called to inquire about advising a client:

  • A.  to “take down” or “scrub” social media posts.
  • B.  to surreptitiously record a conversation with a represented adversary.
  • C.  to move money from a bank account to an online service like PayPal or Venmo.
  • D.  to use a shared iCloud account to review a spouse’s text messages in a divorce.

Question 5

William Creighton Howard was both a doctor and lawyer.  From 1922-1939, he was legislative counsel to the American Medical Association.

In 1937, Howard and the AMA were staunchly opposed to proposed tax legislation. Among other things, the legislation required physicians and pharmacists to collect a tax on a product that they prescribed and sold.

Despite the efforts of Howard and the AMA, the legislation passed and President Roosevelt signed the ensuing Act into law.

After the bill passed, Howard complained that it had been drafted in secret and put to vote before opponents had time to read it & prepare their opposition.  (I guess some things never change.)  More importantly, he complained that Act used a deceiving title to disguise its true purpose. He also claimed that proponents of the Act had garnered support by misleading people into thinking that a particular product was prone to overuse and, when overused, caused users to become violent.

In 1965, counter-culture icon Timothy Leary was arrested and charged with violating the Tax Act.  In 1969, a unanimous U.S. Supreme Court declared the Act unconstitutional and overturned Leary’s conviction.

What product did the Act tax?   Marihuana (that’s how it was spelled)

Bonus: in Leary’s case, what part of the Constitution did the Supreme Court conclude that the Tax Act violated?   The Fifth Amendment’s privilege against self-incrimination.  The opinion is here, its wiki entry is here.