Five for Friday #146

Welcome to Friday!

I’m battling writer’s block today.  As I struggled, I re-read last week’s post about my mom.   Then it hit me: especially this week, “146” makes me think of two things: paltering and reality TV.

Whether speaking or writing on professional responsibility, “puffery” and “paltering” are two of my favorite words.  Last October, I posted On Ponds, Puffery & PalteringIn it, I shared a story of my own paltering.  As a refresher, here’s a short excerpt:

“A person palters by actively using the truth to deceive.  As this piece in the Washington Post points out, many consider ‘the behavior of someone who paltered in a negotiation as being just as unethical or untrustworthy as the person who outright lied with a known falsehood.’

Remember: when representing a client, Rule 4.1 prohibits misrepresentations of fact or law to a third person.  Per Comment [1], ‘[m]isrepresentations can also occur by partially true or misleading statements or omissions that are the equivalent of affirmative false statements.'”

Last Friday, my set-up for “145” was to ask readers to pronounce it “1 for 5.”  I wrote:

“If you say it ‘1 for 5,’ well, you’ve summed up my baseball career.  As in, I was a terrible hitter:  ‘1 for 5’ was an above average game at bat for me.”

Well, now that I think about it, does 1 for 5 sum up my baseball career?  Yes, but that’s only partially true.  It’s far more accurate to say “yes, I went 1 for 5, then I made another out in my 6th at-bat.”

1 for 6.

Now, here’s where reality TV comes in.

I  don’t like reality TV.  I don’t watch any of it.  The only exception: in law school, I was into MTV’s Real World.  I watched the first 3 seasons.  Since then, I’ve actively worked to know as little as possible about reality TV.

Alas, worlds collide.

Monday night was a huge night for me.  Not only did my beloved Clemson Tigers win the college football national championship, but Season 23 of The Bachelor premiered.  No, I didn’t watch.  I never have.  It’s reality TV and it’s not puffery when I tell you that I despise reality TV.

But, in the hype leading up to the premiere, The Bachelor made headlines for, guess what?

Paltering!

The pre-premiere promos include this tweet.  Check it out.  That is the clinical definition of paltering!

And that is why, in the unlikely event that I ever again have to pause to reflect on the number 146, my introspection will cause me to think of baseball, paltering, and reality TV.

Image result for images of an aussie flag

On to the quiz!

Rules

  • 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 michael.kennedy@vermont.gov
  • 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

Last week, the quiz’s first question asked readers to name 1 of the 5 C’s of ethics.  They are Competence, Communication, Confidences, Conflicts and Candor.  This week, I blogged about the importance of a professional duty that begins with a letter that abuts C.  It’s a duty that applies no matter how “big” or “small” a lawyer views a client’s matter.

It’s the duty in the rule entitled:

  • A.   Bookkeeping
  • B.   Barratry
  • C.   Diligence
  • D.  Dual Representation

Question 2

One of the conflicts rules states that “a concurrent conflict of interest exists if the representation of one client will be directly adverse to another.”

True or False:

The rule speaks to matters that are the same or substantially related to each other. For example, a lawyer who represents Kennedy in Kennedy v James, can also represent Brady in Kennedy v. Brady, as long as the two matters are wholly unrelated.

Question 3

Lawyer is holding funds in connection with the representation of Client.  Both Client and Third Party Service Provider have claimed an interest in the funds.  Client and Third Party Service Provider dispute the amount to which each is entitled.  In fact, Lawyer is aware that Third Party Service Provider’s claim is valid.  By rule, Lawyer must:

  • A.   Pay the funds into court and ask a court to resolve the dispute
  • B.   Hold the funds in a trust account until the dispute is resolved
  • C.   Disburse the funds as directed by Client
  • D.   Disburse in accordance with Lawyer’s good-faith determination of the amount due to each

Question 4

Somewhat unbelievably, this one just happened again last week. So, I’m going to keep asking.

Attorney called me with an inquiry.  Attorney said “Mike, I represent a witness.  The defendant’s attorney keeps contacting my client directly. I asked him to stop.  He said he doesn’t need my permission because my client is only a witness, not a party.  Is he right?”

What was my response?

  • A.   Yes, he’s right.
  • B.   The rule is unclear.
  • C.   The rule is unclear, but, by case law, no, he’s wrong.
  • D.  He’s wrong. The rule applies to any person who is represented in a matter.

Question 5

I don’t watch reality tv, but I like regular tv. In addition, I often blog about competence. I also like to blog about lawyers who are quite competent at non-lawyerly pursuits.

A few years ago, I got into a show called Mr. Robot.  One of the reasons I liked it was the fantastically competent work by lead actor Rami Malek.

Earlier this week, Malek won the Golden Globe for outstanding lead actor in a movie. In the movie, he played Freddy Mercury.  This is a hint, as is the fact that I purposefully did not name the movie.

The Windham County Bar Association held its annual dinner on Wednesday night.  Thanks to former secretary Ray Massucco, the WCBA has a wonderful tradition of presenting the minutes of the previous year’s meeting in a very entertaining way.

This year was James Valente’s first meeting as Secretary of the WCBA. He marked the occasion by channeling his inner Freddy Mercury and singing the minutes of the 2017 meeting to the tune of a famous Queen song.  By all accounts, he was fantastically competent.

Name the song.

 

 

 

 

 

 

 

 

 

 

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