Five for Friday #168

Welcome to #168!

Before we get started, here’s something regular readers will understand: I got the bins right this week! And I didn’t even have to check my new calendar.

So . . .

. . . on New Year’s Day I boldly announced on Facebook and Instagram that, in 2019, I’d run at least 10 half marathons in 10 different states or provinces.  New Year’s Eve has long tended to leave me confusing “bad idea” with “bold plan.”  A few things I forgot to factor into the equation? Travel and lodging.

Fortunately, my dad is vacationing in Boothbay Harbor this week.  It’s fortunate because  tomorrow is the Old Port Half in Portland.  So, as soon as I post today’s quiz, I’m heading to Maine.  Not so much to visit my dad – no offense dad – but to take advantage of the free (to me) room, run tomorrow’s half marathon, and tick off another state on my quest for 10.

Son of the Year!

Anyhow, in addition to being ready to hit the road, I’m fresh out of ideas.  So, I almost posted today’s quiz sans this intro. But, in a burst of effort meant to give the people what they likely scroll right past, I googled “168 legal ethics.”  What I found nearly made my spit out my coffee in laughter.

I found this.  It’s an advisory ethics opinion that was issued in Texas in 1958.  The summary:

“It is improper for an attorney to send Christmas cards to his clients which indicate that he is an attorney at law either on the cards or their envelopes.”

And, the opinion itself:

  • The sending of Christmas cards with the language ‘Attorney at Law’ and ‘Attorney at Law, 1137 Big Building, City, Texas’ or of a card without such language in an envelope which shows a return address reading. ‘John Doe, Attorney at Law, 1137 Big Building, City, Texas’ violates Canon 24 of the Canons of Ethics of the State Bar. If the Christmas cards and the envelope merely stated the name of the sender without any reference to his being an attorney, the sending thereof would not violate the Canons of Ethics of the State Bar. (9-0).'”

Not a single dissent!  I’ll give them this: at least their opinions were brief.

The brevity, however, leaves me unclear as to the reasoning.  I assume it wasn’t necessarily “Christmas cards,” but any card, whether birthday, graduation, or get well.  Also, I’m  aware that, back then, advertising was frowned upon.  We’re a noble profession!  But cards to your own clients????  Come on!  And, it’d be okay if you remove any reference to being an attorney???  Huh?

It makes me laugh.  Yet, at the same time, it makes me wonder.

In legal ethics, what are we requiring, prohibiting, or allowing that, years from now, will make the profession scratch its collective head?  Something.  Because that’s how life works: we look back and wonder “what the hell were they thinking?”  Often, we’re right to wonder.

I used to tell my players that once we stop looking for ways to get better, we stop getting better.  Both as players and as a team.

It’s the same with legal ethics.  Actually, it’s the same with life.

It’s likely that every single one of us is doing something today that, years from now, we’ll wonder why we ever did it this way.  Whether as lawyers, judges, bar associations or courts.  Whether as friends or family members. Whether in athletics, law, or interpersonal relationships.

Self-reflection and introspection are personal and professional responsibilities.  Let’s resolve always to work to improve.

Oh – you lawyers & firms who send me holiday cards? Keep it up! They brighten up an otherwise drab office.

Onto the quiz!


  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • 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
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Question 1

What is the quoted language more commonly known as?

  • “a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibility to another client, a former client or a third person . . .”

Question 2

Someone Other Than Client (“SOTC”) is paying Lawyer to represent Client. Which is most accurate?

With respect to information related to the representation of Client, Lawyer

  • A.  may disclose to SOTC without Client’s consent;
  • B.  must disclose to SOTC even over Client’s objection;
  • C.  may not disclose to SOTC without Client’s consent or unless disclosure is otherwise authorized by the rules.
  • D.  None of the above.

Question 3

Confidences. Competence.  Conflicts.  Candor.  Communication. Civility.

There’s another word that begins with “C” that is a serious violation of the rules. However, the word doesn’t appear in any of the rules, notable in its absence from the trust accounting rules and the rule on safekeeping client property.

What’s the word?

Question 4

Former Client sued Lawyer for malpractice.  Lawyer had represented Former Client in a divorce.  Attorney represented Former Client in the malpractice action.

Attorney proposed a settlement.  Lawyer accepted. The settlement included a provision that Lawyer will not represent clients in divorces for 5 years.

Did either Attorney or Lawyer violate the rules?

  • A.  Yes, Lawyer’s malpractice in the divorce is a per se violation.
  • B.   Yes, Attorney violated the rules by making the offer.
  • C.   Yes, Attorney and Lawyer violated the rules by making and accepting the offer.
  • D.  A and B.

Question 5

Increase Mather was born on this day in 1639. Apropos of my intro, many of Mather’s beliefs wouldn’t be acceptable in today’s society.

Yet, one likely stands the test of time.  In his work “Cases of Conscience,” Mather referred to the so-called “Blackstone Ratio,” the idea that it’s better that 10 guilty persons go free than 1 innocent person be punished.

What notorious legal event prompted Mather to write Cases of Conscience?


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