Five for Friday #132

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Welcome to Friday!

By the way – thank goodness that brew festivals aren’t subject to the same advertising rules as lawyers & law firms.  If they were, tonight’s Oktoberfest would be shut down for having a misleading name!

So, #132.  Regular readers know I usually try to tie a story to the number.

Not today.

Why not? Because it’s September 21.

What’s that got to do with anything?  Well, let me ask you this:

“Do you remember the 21st night of September?
Love was changing the minds of pretenders
While chasing the clouds away.”

~ Earth, Wind & Fire – “September”

I’ve got a good friend.  (shocker, right?)  Anyhow, her name is Jenn and she LOVES that song.  So much so that September 21 will always remind me of Jenn, my close friends, and lining up by height in my basement.

Let me explain.

March 12, 2005, was a Saturday.  That day, the UVM men’s basketball team hosted Northeastern in the America East conference championship game.  On the line? A trip to the NCAA Tournament.

I’d bought my condo the prior summer and, over the winter, had finished the basement.  By early March, the basement had a carpet, a tv, a couch, and a stereo with fantastic speakers.

As usual, and for television purposes, the AE title game tipped off at 11:00 AM.  Some of my friends came over for the game:  Jenn, Ryan, Kate, Deb, Seth, Tammy, and JD.  Yesterday, I texted each and asked them to share one memory of the day.  I messaged each individually so that nobody’s response would influence anyone else.  This blog is a compilation of their responses and my memories.

Jenn and Ryan arrived first, shortly after 10 AM with the others close on their heels.  Because why not start a party an hour before a game? Gotta make sure we can find the right channel!! Anyway, Jenn brought egg sandwiches. While the sandwiches warmed in my oven, the first mimosas were poured and we were off & running.

Which is probably why I don’t remember much about the game other than we watched it in the basement and UVM demolished Northeastern.  I didn’t even remember JJ Barea’s antics.  As Ryan recalled, less than a minute into the game, Northeastern’s star guard punched a UVM player in the face!

What I do remember is this: my friends didn’t leave my condo, or really my basement, until midnight.  That’s right. We spent 14 hours hanging out in the basement.

What’d we do? What any normal group of people would do: we lined up by height! Nearly every text I received yesterday mentioned it:

  • “my memory is us all lining up by height. Totally random.”
  • “my memory is so dumb. It was us lining up by height.For what reason, I can’t recall.”
  • “I remember a few . . . like lining up to see who was tallest. Seriously??”
  • “Lining up by height?”
  • “Didn’t we line up by height for some reason?”

Yes, yes we did.

We also listened to music, sang loudly, and danced awesomely.  Playing DJ, even though we had a real DJ there, I took requests. It was long before downloaded or streaming music, but I had a lot of CDs. Like, a lot. Still, for whatever reason, we listened to 2 songs about 500 times each.

The first: Far Behind by Candlebox.  (JD is really good – like REALLY good – at the fast part at the end.  So good that, each time the song played, I’d take a drink during that part so he wouldn’t know that I didn’t really know the words.)

The other? Jenn’s request:  September, by Earth, Wind & Fire.  Which is why today will always remind me of that day in my basement.

It’ll also remind me of something else: how great my friends are.

Yesterday, I had the opportunity to speak at Vermont Law School.  The topic was lawyer wellness and the crushing toll that the profession exacts from its members.  I was fortunate enough to share the podium with Professor Mark Latham and VLS student Phoenix Mikilas Meyers.  Each shared terrific strategies to maintain work-life balance, including the incredibly important point of making sure to take time away from work & away from the law.  This is a topic upon which I’ve often blogged:

Anyhow, and knock on wood, my work-life balance is pretty damned good.  One of the reasons: my friends.

No, we haven’t spent 14 hours in a basement since that day.  Life is life and, as it never fails to do, it has intervened.  Days like that are, well, like Candlebox sang, far behind us.  But we still see each other and stay in touch.  And for that I’m very grateful, because my friends make my life a better place.

My condo is under contract now.  Earlier this month, I got rid of a ton of clutter in anticipation of putting it on the market.  Sadly, I realized that I no longer have the one tangible item that is evidence of that long ago Saturday.

Back then, I was coaching.  There was a small dry erase clipboard in my basement.  One that I used to diagram plays during time-outs.  Kate & Deb drew on it.  All day.  An unbelievable kaleidoscope-like design that I never erased.  For years, I saved it as a memory of that day.  It made me a bit melancholy to realize I no longer had it, almost like a metaphor for life as, this weekend, summer turns to fall.

But I’ve got the memories.

And, 5, 10, 25 years from now, I’m still going to have the memories that my friends and I made. Those memories will last much longer than memories of a Saturday that I went to work to get less far behind.

Was it a foolish way to spend a day? Maybe.  But if you think so, your friends don’t dance and if they don’t dance, well, they’re no friends of mine.

Make time for what matters.  Friends who dance matter.

To Jenn, Ryan, Kate, Deb, Seth, Tammy, and JD: here’s to egg sandwiches, lining up by height, and making time for what matters.  Each of you is awesome! Thank you for being my friends.

By the way, I have way more than 7 friends.  Like, at least 9.  So you other friends, thank you too! Now do something blog worthy!

Onto the quiz!


  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception – but one that is loosely enforced – #5 (“loosely” = “aspirational”)
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

Lawyer represented Kennedy.   During the representation, Lawyer held funds in trust for Kennedy.  The representation ended last week.  How long must Lawyer keep records of funds that were held in trust for Kennedy?

  • A.   1 year from the termination of the representation.
  • B.   6 years from the termination of the representation.
  • C.   The rules do not specify a retention period for trust account records.
  • D.   The rules do not specify a retention period for trust account records, but by case law it’s 7 years from the termination of the representation.

Question 2

Attorney represents Client.  Attorney received information relating to the representation of Client that Attorney knows was not intended to be sent to Attorney.  Under the Vermont Rules of Professional Conduct,

  • A.  Attorney must notify sender.
  • B.  Attorney must ask Client for consent to notify the sender.
  • C.  Attorney must not read, review, or inspect the information.
  • D.  It depends. Who sent the information?

Question 3

Attorney called me with an inquiry. I listened, then said, “the rule says you can’t do it unless:

  1. the terms are fair & reasonable to the client, and fully disclosed in a writing that the client can understand;
  2. you advise the client, in writing, of the desirability of seeking independent legal advice, and give the client a reasonable opportunity to do so; and,
  3. the client gives informed consent, in a signed writing, to the terms, including whether you are representing the client in that matter.”

What did Attorney call to discuss?

  • A.  Settling a malpractice claim with a former client.
  • B.  Settling a malpractice claim with a current client.
  • C.  Entering into a business transaction with the client.
  • D.  The client’s application for an advance from a third-party litigation funding company.

Question 4

You are at a CLE.  Your hear me say “there is a rule of professional conduct that specifically prohibits (a) frivolous discovery requests; and, (b) the failure to make reasonably diligent efforts to respond to an adversary’s proper discovery requests.”

That statement is:

  • A.   True.
  • B.   Not exactly true, but there’s a rule that requires lawyers “to make reasonable efforts to expedite litigation” and, arguably, this conduct falls under that rule.
  • C.   False – but a violation of the civil, criminal, or family rules of procedure can rise to the level of a violation of the rules of professional conduct.
  • D.  Mike, wait . . lawyers make frivolous discovery requests and drag their feet responding to an opponent’s legitimate requests?

Question 5

Speaking of the advertising rules, Harvey is a television lawyer who often refers to himself as “the best closer in New York.”  Maybe he is, maybe he isn’t.

Perhaps his bigger ethical concern should be that he hired an associate, Mike, who he knew hadn’t graduated from college, gone to law school, or passed the bar exam. Well, neaver passed the bar exam while taking it as himself.  Mike had passed many times while being paid to take the bar exam for others.

In real life, both actors attended this summer’s biggest wedding.

Name the show.