Monday Morning Answers

Welcome to Monday!

Friday’s questions are here.  Windsor Count was great!  Ran 11.2 miles, mainly on the old River Road between Woodstock and Taftsville.   Assistant Attorney General Rob McDougall tipped me off to the route.   I had the pleasure of bumping into two Vermont attorneys on the trek:  Attorney Bonnie Badgewick was also out running on the River Road, and later I saw Deputy State’s Attorney Daron Raleigh at the Harpoon BBQ fest.


Honor Roll

  • Matthew AndersonPratt Vreeland Kennelly & White
  • Erin GilmoreRyan Smith Carbine
  • Robert Grundstein
  • Tammy Heffernan
  • Anthony IarrapinoWilscheck & Iarrapino
  • Glenn Jarrett, Jarrett & Luitjens
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Kevin LumpkinSheehey Furlong & Behm
  • Lon McClintockMcClintock Law Offices
  • Jack McCullough, Project Director, Vermont Mental Health Law Project
  • Jeff MessinaBergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Herb Ogden
  • Jim Runcie, Ouimette & Runcie
  • Kane Smart, ANR, Office of General Counsel, Enforcement & Litigation


Question 1

Lawyer called me with an inquiry.  I listened, then said “per the definition, it means that the person agrees to a proposed course of conduct after you communicate adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”

The definition of what?  (hint: 2 words)

INFORMED CONSENT – See, Rule 1.0(e)

Question 2

No matter the type of case, a rule requires a lawyer to abide by a client’s decision whether:

  • A.  to settle a case; See, Rule 1.2(a)
  • B.  to testify
  • C.  to hold funds in an account that will generate interest for the client
  • D.  All of the above

Rule 3.3(a)(3) provides guidance as to when a lawyer may refuse to present certain testimony in a civil case.

As for whether to deposit funds into an IOLTA or into an account that will generate interest for the client, the choice is not the client’s.  See, Rule 1.15B(a)(1).

Question 3

In the context of a particular rule, which is different from the others?

Lawyer’s disclosure of:

  • A.  Client’s intent to commit suicide.
  • B.  information relating to the representation of Client in order to secure legal advice about Lawyer’s compliance with the rules of professional conduct.
  • C.  information relating to the representation of Client to establish a defense to a criminal charge or civil claim made against Lawyer and based upon conduct in which Client was involved.
  • D.  Client’s intent to commit a criminal act that Lawyer reasonably believes will result in the death of, or substantial bodily harm to, someone other than Client.

This is straight from Vermont’s version of Rule 1.6.  In Vermont, scenario D is a mandatory disclosure.  A, B, C are permissive.   D’s key distinction from A is that the harm will inure to someone other than the actor.

Question 4

Lawyer called me with an inquiry. I listened, then said “well, a comment to the rule says that you should advise them that if they end up suing each other, ordinarily, the privilege doesn’t attach.”

Most likely, Lawyer called me to discuss:

  • A.   preparing a will
  • B.   defending an insured
  • C.   serving as a mediator
  • D.   representing common clients in the same matter.  See, Rule 1.7, Comment 30.  Comments 29-33 discuss “Special Considerations in Common Representation.”

Question 5

Two-part question.

I often blog about both competence and music.

Earlier this week, the ABA updated its 2007 list of the 25 Greatest Legal Movies.  Among the movies new to the list is a 2017 documentary about a lawyer who is among the most competent in the field.  Some refer to the lawyer by a nickname that derives from an iconic musician’s stage name.

In an interview following the release of the documentary, the lawyer was asked if she was uncomfortable with the nickname.  She responded “why would I feel uncomfortable? We have a lot in common.”  Indeed, both the lawyer and the musician

  • were born & raised in Brooklyn,
  • were subjected to discrimination, and
  • achieved widespread success & notoriety in their fields.
  1.  Name the lawyer:  RUTH BADER GINSBURG – aka Notorious RBG 
  2. Name the musician:  CHRISTOPHER WALLACE – aka Notorious B.I.G. (Biggie Smalls)

The documentary  by the way, is RBG