Monday Morning Answers – The Fair

Happy Monday!  Friday’s questions are here.  The answers follow today’s Honor Roll.

Honor Roll

  • Laura Gorsky, Esq.
  • Bob Grundstein, Esq.
  • Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
  • Jonathan Teller-Elsberg, Vermont Law School, Class of 2020,
  • Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

Which belongs somewhere else than with the others?

A lawyer shall:

  • A.   keep the client reasonably informed about the status of the matter.
  • B.   explain the matter to the extent reasonably necessary to permit the client to make informed decisions.
  • C.  in an ex parte proceeding, inform the court of all material facts known to the lawyer which will enable the court to make an informed decision
  • D.   Trick question. All 3 are in separate rules.

C is in Rule 3.3(d), and is an aspect of the larger duty of candor to a court.  A & B are parts of Rule 1.4 and the duty to communicate with a client.

Question 2

True or false.

There’s a rule that specifically requires a lawyer to make reasonable efforts to expedite litigation, consistent with the interests of the client.

TRUE – Rule 3.2

Question 3

By rule, a lawyer shall not act as an advocate in a trial in which:

  • A.  the lawyer is likely to be a “necessary witness”
  • B.  another lawyer in the lawyer’s firm is a party
  • C.  another lawyer in the lawyer’s firm is a witness
  • D.  All of the above.

This is the language from Rule 3.7 and disqualifies the lawyer who is likely to be a necessary witness from acting as an advocate at trial.  The situations in B & C are not absolute bans, but only DQ the lawyer if the relationships otherwise create a conflict.

Question 4

A client’s failure to abide by the terms of a fee agreement:

  • A.   is not grounds for a lawyer to move to withdraw
  • B.   mandates that the lawyer move to withdraw
  • C.   permits the lawyer to move to withdraw.  Rule 1.16(b)(5); See also Comment [8]
  • D.  is not covered by the rules of professional conduct

Question 5

Inspired by a recent text from one of the first people ever to follow this blog.

Bob Loblaw is the Bluth family lawyer on Arrested Development.  His advertising slogan is “You don’t need double talk, you need Bob Loblaw!”  Also, as do all great lawyers, he blogs.  His blog is the “Bob Loblaw Law Blog.”  The Bluth family hired Bob to replace the incompetent Barry Zuckerkorn.

In real life, the actors who play Loblaw and Zuckerkorn also played characters in a sitcom that debuted 30 years before Arrested Development.

Name the sitcom.

First, if you didn’t pick up on the joke, Bob Loblaw is named as such in order to sound like “blah blah blah.”  His blog is “blah, blah, blah, blah, blah.” 

Scott Baio plays Loblaw and Henry Winkler plays Zuckerkorn.   An eternity ago, the two played Chachi & Arthur Fonzarelli (Fonzie) in Happy Days.

See the source image

The Fair

Blogger’s Note: I’m on a blogging hiatus this week.  Today marks the opening day of the Champlain Valley Fair.  So, I’m re-posting a post from last year’s first day of The Fair. It ran on August 24, 2018.

*********************

She kept the hotel key.

Welcome to #128!  Vermont Route 128 is, of course, how I get to the Steeple Market, which is the official market of this blog.  And, of course, Route 128 ends in Essex, home of the Champlain Valley Fair.  Where, tonight, the gang and I are going to the Old Dominion concert.

I love the fair.  ALways have.  I’m not positive, but I think my parents used it as a baby-sitting tool when I was a kid.

Michael, take your brother to the fair.”

“Mom, it’s like 7AM.”

“Now!  And stay all day.”

“That’s what we did yesterday.”

“Michael!!!”

Latchkey kids are the best.  But, I digress.

Oddly, for liking the fair so much, I do not like rides.  Not one single bit. Mainly because I’m a big ole chicken.  I have vivid memories of paralyzing fear gripping me – – as I stood in line for a ride!  The ride itself?  Awful. Like, on a scale of 1-10, it was infinity level of awful.  I’d close my eyes and pray for the entire ride.  I think my stomach might clutch tonight if I even happen to glance at the Pirate Ship.

No, for me, it’s the food.  And the people watching.  But mostly the food.  Fried dough.  Al’s French Frys.  The magical building where every single food item is maple. I mean, seriously, how awesome is that?  EVERY SINGLE THING HAS MAPLE!  Maple!  Nature’s best condiment!  (well, after peanut butter).

But the best of them all?  Mr. Sausage.

Image result for mr. sausage champlain valley fair

Back in the day, I worked at a gas station on Shelburne Road.  My buddy Skip’s dad owned it.  Skip knew Stan Gumieny, aka Mr. Sausage, and we both knew Stan’s daughters, Julie & Jill. For 2 summers, I took a week off from working at the gas station so I could work for Stan, grilling sausages at the Fair.

Sweet Italian sausage.  Hot and spicy sausage.  Grilled peppers & onions, the greasier the better.  So much mustard that the health department might arrest you on the spot.

I don’t remember many details.  I remember it was hard work.  Hot, and busy.  And I was kind of lazy – Stan often had to yell at me not to serve sausages that were only half-cooked.  Health regulations or something silly like that.  But I had a crush on Jill, so I was more than willing to work double shifts.

And the smell.  I always loved the smell of the food at the Fair.   I know you all know what I mean.  Drop me in blindfolded and tell me to guess where I am, it’d take a millisecond. And, to this very day, even though I rarely eat it, I love the smell of sausage being grilled.

Mostly, I recall it as being fun.  Hanging out with my friends, acting like we were real restraunteurs, cranking the tunes & drinking beers as we cleaned the grills each night after closing.  Endless, in our minds. Looking back, it’s one of those things that you do, having no idea how good you have it at the time.

It was the best summer job I ever had.

Alas, as it does, life intervened.  Summers end.

I haven’t seen Skip, Jill, or Julie in forever. I don’t even know where they are.  But, I know this: tonight, whether or not he still works the grill, Stan’s Mr. Sausage stand will be at the fair, serving up fully cooked, fantastically tasty sausages.

And I’m going to have one.

Onto the quiz!

Rules

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception: if you must, open book for Question 5 . But, we try to play that one straight.
  • 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

Which belongs somewhere else than with the others?

A lawyer shall:

  • A.   keep the client reasonably informed about the status of the matter.
  • B.   explain the matter to the extent reasonably necessary to permit the client to make informed decisions.
  • C.  in an ex parte proceeding, inform the court of all material facts known to the lawyer which will enable the court to make an informed decision
  • D.   Trick question. All 3 are in separate rules.

Question 2

True or false.

There’s a rule that specifically requires a lawyer to make reasonable efforts to expedite litigation, consistent with the interests of the client.

Question 3

By rule, a lawyer shall not act as an advocate in a trial in which:

  • A.  the lawyer is likely to be a “necessary witness”
  • B.  another lawyer in the lawyer’s firm is a party
  • C.  another lawyer in the lawyer’s firm is a witness
  • D.  All of the above.

Question 4

A client’s failure to abide by the terms of a fee agreement:

  • A.   is not grounds for a lawyer to move to withdraw
  • B.   mandates that the lawyer move to withdraw
  • C.   permits the lawyer to move to withdraw
  • D.  is not covered by the rules of professional conduct

Question 5

Inspired by a recent text from one of the first people ever to follow this blog.

Bob Loblaw is the Bluth family lawyer on Arrested Development.  His advertising slogan is “You don’t need double talk, you need Bob Loblaw!”  Also, as do all great lawyers, he blogs.  His blog is the “Bob Loblaw Law Blog.”  The Bluth family hired Bob to replace the incompetent Barry Zuckerkorn.

In real life, the actors who play Loblaw and Zuckerkorn also played characters in a sitcom that debuted 30 years before Arrested Development.

Name the sitcom.

Monday Morning Answers #174

Welcome to Monday! Friday’s questions are here.  The answers follow today’s Honor Roll.

This week, I’m giving extra credit to Jack McCullough.  Jack sent me an email in which he expertly tied Question 5 to one of my favorite topics: basketball.

As you’ll see, the answer to Question 5 is John Adams and the Boston Massacre.  Jack pointed out that Crispus Attucks, one of the victims of the massacre, was the first American killed during the Revolution.  Jack added that Oscar Robertson, arguably the greatest basketball player in history, graduated from Crispus Attucks High School in Indianapolis.  Hollywood hasn’t made a move about The Big O and his high school teammates, but the story of their championship season is as compelling as any in the history of the Hoosier state.

Image result for oscar robertson

Honor Roll

  • Karen Allen
  • Matt AndersonPratt Vreeland Kennelly Martin & White
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, John Marshall Law School
  • Honorable John M. Conroy, United States Magistrate Judge, District of Vermont
  • Bob Grundstein, Esq.
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • John LeddyMcNeil, Leddy, & Sheahan
  • Deb Kirchwey, Esq.
  • Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
  • Aileen LachsMickenberg, Dunn, Lachs & Smith
  • Kevin LumpkinSheehey Furlong & Behm
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Jeff MessinaBergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Jim Runcie, Runcie & Ouimette
  • Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

A comment to one of the rules says:

“Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statement of material fact.”

The quoted language appears in a comment to the rule that requires:

  • A.  Competent representation.
  • B.  Diligent representation.
  • C.  Fairness to opposing counsel & parties.
  • DTruthfulness in statements to others.  V.R.Pr.C. 4.1.  I’ve written on “puffery” and the ethics of settlement negotiations here and here.

Question 2

Which set of rules are relaxed for (1) lawyers who move between private practice and government practice; and (2) lawyers who provide short-term legal services under the auspices of a program sponsored by a court or non-profit, and without expectation by the lawyer or client of continuing representation?

The rules on conflicts of interests.  With respect to lawyers who move between government and private practice, Vermont doesn’t impute all conflicts and allows screening.  With respect to relaxed conflicts rules & pro bono work, see Rule 6.5.

Question 3

Lawyer is holding funds in trust.  There is a legitimate dispute between Lawyer’s client and a third person as to who is entitled to a portion of the funds.  Entitlement to the remainder is not in dispute.

True or false:  Lawyer must promptly distribute all portions that are not in dispute, even before the dispute as to a particular portion is resolved.

True.  V.R.Pr.C. 1.15(e).

Question 4

I’ve asked this question before, but I’m asking it again because I’ve received multiple inquiries about the rule over the past few weeks.

The rule on trial publicity applies:

  • A.  to any lawyer who is participating in or has participated in the investigation or litigation of a matter.  V.R.Pr.C. 3.6(a).
  • B.  only to a lawyer who is participating in or has participated in the investigation of a criminal matter.
  • C.  only to prosecutors in a criminal case.
  • D.  None of the above.  There is no rule on trial publicity.

Question 5

Speaking of the Revolutionary War and the duty of competent representation, here’s a two-part question.

In an argument made during a jury trial that took place in 1770, a criminal defense attorney said:

  • “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence . . . It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished. But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, ‘whether I do good or whether I do evil is immaterial, for innocence itself is no protection,’ and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.”

Name the lawyer and the event that resulted in the lawyer’s clients being charged.

John Adams defended the British soldiers charged in connection with the Boston Massacre.

 

Image result for john adams boston massacre

 

 

Five for Friday #174

Happy Bennington Battle Day!

For those of you not in Vermont, today is an official Vermont state holiday.  We commemorate 1777’s Battle of Bennington.  The Bennington Battle Monument is one of Vermont’s tallest structures.

Bennington Battle Monument

Today, you likely can’t go too long without running into someone who will mockingly tell you that “the battle wasn’t even fought in Vermont!” To them, I say “spare me.”  We’re all aware that the battle was fought in New York.  As I’ll discuss in a moment, the reason it wasn’t fought in Vermont is because General Stark complied with the duty of competence.

Aside: one thing I learned this summer is how little I know about the Revolutionary War. A few weeks ago, I spent a Saturday afternoon in Lexington & Concord.  I stopped at several of the sites along Minute Man National Park’s so called “Battle Road Trail.” Not only did I learn a lot – for instance, I had no idea that Paul Revere’s ride ended with him being captured – I found it somewhat awe inspiring to stand on the North Bridge and try to envision what was going through the minds of those who were there in April 1775.

Anyhow, back to Stark and the Battle of Bennington.

Yes, the battle took place in New York.  However, the British goal was a Patriot supply depot in Bennington, Vermont. Upon learning that the British were in the area, Stark ordered his forces out of Bennington into a defensive perimeter that happened to be in New York.  In other words, Stark took reasonable precautions against British access to Bennington and its supply stores.

Good plan!

Tying this to professional responsibility, if your plan to protect electronically stored client data is to move it upon being notified that it’s been accessed, you might consider a better plan.  Acting after the fact isn’t a reasonable precaution against the unauthorized access to client data.

With that out of the way, something struck me as I read about the Battle of Bennington over coffee this morning:

I’d have been a terrible soldier.

Not only in battle – no doubt I’d be too scared to function under fire – but well before we even engaged the enemy.  Why?

The walking!

From what I learned this morning, many of the Patriots who fought at Bennington were from New Hampshire.  Stark rallied them in Charlestown, NH and then marched them all the way to Bennington.

Umm, no thank you.

My dad’s brother is a Revolutionary War buff.  For many years, he’s been part of a group that reenacts battles: Herrick’s Rangers, the original version of which was a Vermont-based regiment that fought at Bennington.  Some of you might know him – his name is Edmund Kennedy and he used to be a GAL in the Caledonia County courts.

My uncle and his fellow reenactors are really into detail.  Whether uniform material, muskets, cooking methods – you name it – they use & do whatever the original Herrick’s Rangers would’ve used & done.

But you know what they don’t do?  Walk from their homes to the reenactment sites!

Is it unfair that British tea is exempt from the tax on my preferred Dutch tea?  Yes it is! But if fighting you over it means I have to walk all over northern New England to get shot at it, let me think about that for a minute.

Thankfully for this nation, I wasn’t around back then.

Onto 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

A comment to one of the rules says:

“Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statement of material fact.”

The quoted language appears in a comment to the rule that requires:

  • A.  Competent representation.
  • B.  Diligent representation.
  • C.  Fairness to opposing counsel & parties.
  • D.  Truthfulness in statements to others.

Question 2

Which set of rules are relaxed for (1) lawyers who move between private practice and government practice; and (2) lawyers who provide short-term legal services under the auspices of a program sponsored by a court or non-profit, and without expectation by the lawyer or client of continuing representation?

Question 3

Lawyer is holding funds in trust.  There is a legitimate dispute between Lawyer’s client and a third person as to who is entitled to a portion of the funds.  Entitlement to the remainder is not in dispute.

True or false:  Lawyer must promptly distribute all portions that are not in dispute, even before the dispute as to a particular portion is resolved.

Question 4

I’ve asked this question before, but I’m asking it again because I’ve received multiple inquiries about the rule over the past few weeks.

The rule on trial publicity applies:

  • A.  to any lawyer who is participating in or has participated in the investigation or litigation of a matter.
  • B.  only to a lawyer who is participating in or has participated in the investigation of a criminal matter.
  • C.  only to prosecutors in a criminal case.
  • D.  None of the above.  There is no rule on trial publicity.

Question 5

Speaking of the Revolutionary War and the duty of competent representation, here’s a two-part question.

In an argument made during a jury trial that took place in 1770, a criminal defense attorney said:

  • “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence. It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished. But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, ‘whether I do good or whether I do evil is immaterial, for innocence itself is no protection,’ and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.”

Name the lawyer and the event that resulted in the lawyer’s clients being charged.

The Future of Attorney Regulation is Proactive.

Within the world of attorney regulation, there is a trend towards Proactive Management Based Regulation (“PMBR”).  In this post, the Legal Ethics Forum provided one of the more concise descriptions of PMBR that I’ve seen:

  • “With PMBR, the regulator works with lawyers to address risks to avoid problems, rather than reacting to attorney misconduct after it has occurred.”

In other words, focusing as much on preventing fires as putting them out.

To date, PMBR has been implemented in Australia and Canada.  Two states, Colorado and Illinois, have formally adopted it.  Many other states are moving towards it.

The PMBR movement received a welcome boost last week.  The ABA’s House of Delegates approved Resolution 107.   The text:

“RESOLVED: That the American Bar Association urges each state’s highest court, and those of each territory and tribe, to study and adopt proactive management-based regulatory programs appropriate for their jurisdiction, as a way to enhance compliance 4 with applicable rules of professional conduct and supplement existing disciplinary enforcement mechanisms, and to:

a. assist lawyers, law firms, and other entities in which lawyers practice law in the development and maintenance of ethical infrastructures that help to prevent violations of applicable rules of professional conduct;

b. reduce complaints to lawyer disciplinary authorities;

c. enhance lawyers’ provision of competent and cost-effective legal services; and

d. encourage professionalism and civility in the profession.”

The sponsors’ Executive Summary (page 83) urges adoption of “proactive
management-based regulatory (PMBR) programs to enhance compliance with
applicable rules of professional conduct and supplement existing disciplinary
enforcement mechanisms.”

I culled some additional statements from the Executive Summary and will present them as bullet points:

  • “PMBR programs operate separately from the disciplinary process.”
  • “PMBR programs offer a systemic preventive approach to help lawyers, and the entities where they practice law, develop ethical infrastructures to improve the delivery of competent and cost-effective legal services.”
  • “PMBR programs encourage professionalism and civility, and change for the better the relationship between the regulator and regulated.”
  • “PMBR programs provide lawyers with an array tools, including self-assessment
    checklists and online programming, to help them and the entities where they
    practice law develop ethical infrastructures and identify where they may need
    additional skills, training, and education.”
  • “PMBR programs are not one-size-fits-all, may be crafted to meet the needs of each
    jurisdiction, and are reasonable in cost.”

Here in Vermont, we’ve not formally adopted PMBR.  However, we’ve made several of its principles central to the Professional Responsibility Program’s mission.

For example, many of you know that I was disciplinary counsel from 2000-2012.  That entire time, I had a full-time deputy and we reviewed, on average, 246 new disciplinary complaints per year.  During the same period, bar counsel was half-time and responded to, on average, 234 ethics inquiries per year.

Our default, indeed our very set-up, was to react.

In 2012, under the leadership of then-chair Jan Eastman, the Professional Responsibility Board recommended that the Court reallocate resources with the PRP.  The crux: make bar counsel a full-time position, reduce deputy disciplinary counsel to a half-time position.

It worked.

FY                         Disciplinary Complaints                               Inquiries of Bar Counsel 2013                                    285                                                                                   627            2014                                    243                                                                                   750               2015                                    208                                                                                   827               2016                                    181                                                                                   1,100               2017                                    140                                                                                   1,109               2018                                    149                                                                                   1,263

(I’ve previously blogged on the inquiry process and the changes that we made in 2012.)

This is without getting into the sizeable increase in the number of continuing legal education seminars that we present, our focus on issues like civility, wellness, and tech competence, and the fact that, now, we resolve most complaints at screening without referring them to disciplinary counsel, thereby freeing up disciplinary counsel to focus on serious misconduct.

But there’s more we can do for you.

I’ve followed the programs implemented in Colorado and Illinois.  Further, I’m a member of the National Organization of Bar Counsel, one of the strongest leaders in the PMBR movement.  I’ve got some ideas.  Stay tuned.

For now, remember: the future of regulation is proactive.

Image result for images of proactive

 

Wellness Wednesday: It’s okay to be you.

At the end of May, I posted this blog.  In it, I suggested that, this summer, you do what works for you, not what you think others expect you to do.  In other words, be yourself.

A few weeks later, I posted Wellness Wednesday: Survival Skills.  It’s a post in which I referred to Link Christin, a lawyer who contributes to Attorney at Work.  In February, Attorney Christin started a series on survival skills for lawyers.  As of my blog, he’d posted five:

A few weeks ago, Attorney Christin posted Survival Skill No. 6 for Lawyers: Bring Your Authentic Self to Work.  In it, he writes:

  • “Lawyers must create an environment where they can deal with personal and professional behavioral issues in a timely way rather than internalizing them only to have them surface later in more dangerous and destructive ways. We shouldn’t expect everybody to embrace or even like our authentic selves. But, at the end of the day, our success as lawyers and our happiness and stability in life are premised on honoring who we truly are.”

Attorney Christin’s argument that well-being includes being your authentic self reminded me of my suggestion that you spend the summer being you.  And, the more I thought about it, the more I was reminded of my friend David Marlow.

Dave is the Activities Director at Mt. Mansfield Union High School.  In 2018, Dave was Vermont’s Division 1 Athletic Director of the Year.

Last year, Dave did a lot of work getting MMU’s student-athletes involved with mental health awareness.   An aspect of the students’ focus was de-stigmatizing mental health issues and encouraging peers who want help to seek it.  They came up with a phrase that Dave uses often on social media: “It’s okay not to be okay.”  Dave often follows it with #EndTheStigma.

Attorney Christin and Dave make great points that, really, are part of a singular message.

Again, Attorney Christin writes that “[l]awyers must create an environment where they can deal with personal and professional behavioral issues in a timely way rather than internalizing them only to have them surface later in more dangerous and destructive ways.” In other words, not only must we help lawyers deal with behavioral health issues, we must create an environment conducive to seeking help.  Which is exactly what Dave and his student-athletes mean when they say, “it’s okay not to be okay.”

It’s okay to be you.  And, if you need help being you, that’s okay too.  There’s a list of resources here.

wellness

 

 

 

 

Monday Morning Answers #173

Welcome to Monday!  Friday’s questions are here.  The answers follow today’s Honor Roll.

PS: as a blogger & son, when you have plans to go to Sunday brunch with your mother, it’s best not to post a Friday blog in which you announce that you don’t have anything special planned for the weekend.  Brunch was extraordinary!  Thanks mom!

Honor Roll

Answers

Question 1

Does the rule on client confidences permit a lawyer to disclose otherwise confidential information related to the representation of a client in order to secure legal advice about the lawyer’s compliance with the Rules of Professional Conduct?

Question 2

There’s a rule that requires lawyers to act with reasonable diligence and promptness while representing a client.  A comment to the rule states that the duty of diligence may require sole practitioners to:

  • A.   use a cloud-based practice management system
  • B.   employ a bookkeeper, at least part-time
  • C.   prepare a succession plan.  V.R.Pr.C. 1.3, Comment [5]
  • D.  all the above

Question 3

There’s a rule that prohibits a lawyer from disbursing funds from trust unless the funds are “collected funds.”

Is the following statement true or false?

“The rule includes an exception that allows a lawyer to disburse funds from trust in reliance upon the deposit of specified instruments, as long as the lawyer reasonably believes that the deposits will clear and constitute collected funds within a reasonable period of time.”

True.  It’s Rule 1.15(g).

Question 4

Attorney called me with an inquiry.  I listened, then replied “by rule, any communication made pursuant to the rule must include the name and office address of at least one lawyer or law firm responsible for its content.”

I was referring to the rule on:

  • A.   Communicating with a represented person
  • B.   Communicating with an unrepresented person
  • C.   Communicating with a prospective juror
  • D.   Advertising.  V.R.Pr.C. 7.2(c)

Question 5

Richard Roberts is a real-life lawyer.  Earlier this week, he was disbarred on consent in New Jersey after being convicted of several crimes, including theft of client funds.

Roberts is a former narcotics detective & prosecutor who gained renowned for his role in the investigation and prosecution of Frank Lucas, an alleged “drug kingpin” in New York City.  Roberts eventually moved into private practice as a criminal defense attorney. Upon switching sides, one of his first clients was Lucas.

The history between Roberts and Lucas was the subject of a 2007 movie in which Russell Crowe played the now-disbarred Roberts and Denzel Washington played Lucas.  Ridley Scott directed.

Name the movie.

AMERICAN GANGSTER

Image result for american gangster images

Five for Friday #173

Happy Friday and welcome to #173!

I began coaching high school basketball while I was a student at UVM.  I was an assistant with South Burlington High School varsity team, and head coach of the freshmen team.  My second season, the frosh squad finished 17-3.  The following season one of my players made 73 three-pointers, an extraordinary total for a true freshman.

Each number was in my head as I pondered the intro to this week’s quiz.  In my mind, I outlined an essay that would’ve tied together 173, legal ethics, and the story of a fantastic shooter who, as the clock ticked down in game we trailed by 1, eschewed a potential game-winning lay-up to attempt a 3-pointer while alone on a breakaway.  It was going to be an extraordinary post.

It never happened.  I couldn’t turn my thoughts into words.  No matter how I tried, it felt forced.  Which drove me nuts because, like I said, it’s an extraordinary post!

Then, things began to snowball.  Not only had I failed to craft an extraordinary post, the weekend wasn’t looking much better. It’s utterly devoid of extraordinary plans.  No race, no trip to the ocean, no nothing.  Failure as a blogger made worse by failure as a summerer.  Woe is me!

But then I remembered a message that my assistants and I used with a team we coached far more recently: we don’t need to make extraordinary plays; we need to be extraordinary at making ordinary plays.  They add up.

I don’t know that “ordinary” is maligned, but it’s often met with yawns.  Which is too bad. Sometimes – in life, law, and basketball – the ordinary is exactly what’s called for. It adds up.

For example, your clients don’t need you to do something that tomorrow’s scholars will recall as one of history’s extraordinary legal maneuvers.  Rather, they need you to be extraordinary at the ordinary tasks ordinarily expected of you.  Not only does it add up,  it’s competence: knowing your job, doing your job.

As many of my readers know, I’m allergic to winter and try to make the most of summer.  So, sure, I could wallow in the fact that nothing extraordinary is on this weekend’s schedule.

But that’d be foolish.

Because on an August weekend that feels perilously close to September, the better plan is to enjoy summer’s simple & ordinary activities while I still can.  I hope you have a chance to do the same.

After all, a summer of the ordinary adds up to an extraordinary summer.

Onto the quiz!

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

Does the rule on client confidences permit a lawyer to disclose otherwise confidential information related to the representation of a client in order to secure legal advice about the lawyer’s compliance with the Rules of Professional Conduct?

  • A.  No.
  • B.  Yes.
  • C.  Yes, but only if the client consents.

Question 2

There’s a rule that requires lawyers to act with reasonable diligence and promptness while representing a client.  A comment to the rule states that the duty of diligence may require sole practitioners to:

  • A.   use a cloud-based practice management system
  • B.   employ a bookkeeper, at least part-time
  • C.   prepare a succession plan
  • D.  all the above

Question 3

There’s a rule that prohibits a lawyer from disbursing funds from trust unless the funds are “collected funds.”

Is the following statement true or false?

“The rule includes an exception that allows a lawyer to disburse funds from trust in reliance upon the deposit of specified instruments, as long as the lawyer reasonably believes that the deposits will clear and constitute collected funds within a reasonable period of time.”

Question 4

Attorney called me with an inquiry.  I listened, then replied “by rule, any communication made pursuant to the rule must include the name and office address of at least one lawyer or law firm responsible for its content.”

I was referring to the rule on:

  • A.   Communicating with a represented person
  • B.   Communicating with an unrepresented person
  • C.   Communicating with a prospective juror
  • D.   Advertising

Question 5

Richard Roberts is a real-life lawyer.  Earlier this week, he was disbarred on consent in New Jersey after being convicted of several crimes, including theft of client funds.

Roberts is a former narcotics detective & prosecutor who gained renowned for his role in the investigation and prosecution of Frank Lucas, an alleged “drug kingpin” in New York City.  Roberts eventually moved into private practice as a criminal defense attorney. Upon switching sides, one of his first clients was Lucas.

The history between Roberts and Lucas was the subject of a 2007 movie in which Russell Crowe played the now-disbarred Roberts and Denzel Washington played Lucas.  Ridley Scott directed.

Name the movie.

Image result for american gangster images

In litigation, be wary of the gift horse.

A few weeks ago, the Los Angeles County Bar Association’s Professional Responsibility and Ethics Committee issued Opinion 531.  The opinion addresses this question:

  • “In Litigation, What Are A Lawyer’s Ethical Obligations When Offered Evidence Retained By A Former Employee Of The Opposing Party Who Reveals That Relevant Documents Have Been Concealed From Production?”

The ABA Journal and Bloomberg Law reported on the opinion.

Here’s the scenario:

  • Lawyer represents Company in civil claim against Business.
  • Company contends that Business stole trade secrets from Company.
  • Former Employee of Business contacts Company.
  • Former Employee says that Business has withheld important documents and data from production.
  • Former Employee says that documents & data will establish that Business possesses and has used Company’s trade secrets.
  • Former Employee claims to possess electronic copies of the documents & data.
  • Company asks Lawyer to meet with Former Employee and take possession of the electronic copies.

And here’s an outline of the LA Bar Committee’s analysis:

  1. Lawyer must determine whether Former Employee lawfully possesses the data.  If not, and if Lawyer takes possession of it, Lawyer might be required to turn the data over to the appropriate authorities as evidence of a crime.
  2. Lawyer must determine whether the data constitutes information that Lawyer knows or should know is privileged or work product.  If so, Lawyer may not take possession of the data and must notify Business or its attorney.
  3. If Former Employee is not represented, Lawyer may communicate with Former Employee but must comply with the rule on dealing with unrepresented persons.
  4. Lawyer must consult with Company as to the means by which Lawyer will pursue Company’s objectives, including any limitations that the Rules of Professional Conduct place on Lawyer’s conduct.
  5. Lawyer may not advise or assist Company to violate the law or to gain unauthorized access to information that is privileged or work product, but may advise Company as to the consequences of Company’s proposal that Lawyer (and Company) take possession of the data.

Obviously, the opinion is based upon California legal authority, including various opinions from California courts & the state’s version of the Rules of Professional Conduct.  I’ve never dealt with this in Vermont and have not yet fully thought through my response if it were to happen here.

That being said, in my opinion, critical to the analysis is the fact that the data was not inadvertently produced.  As such, on its face, V.R.Pr.C. 4.4(b) does not apply.  Indeed, Comment [2] to Vermont’s rule states:

  • “Whether the lawyer is required to take additional steps, such as returning the original document, is a matter of law beyond the scope of these rules, as is the question of whether the privileged status of a document has been waived. Similarly, this rule does not address the legal duties of a lawyer who receives a document that the lawyer knows or reasonably should know may have been wrongfully obtained by the sending person.”

Rather, to me, the California opinion addresses what is often referred to as “purloined information.”  It’s not a simple issue.  Indeed, the annotation to ABA Model Rule 4.4(b) includes two pages of cites to decisions, advisory opinions, and law review articles that address a lawyer’s duties upon the “fortuitous receipt” of information that may or may not be privileged and may or may not have been improperly obtained.

Earlier this year, The Colorado Lawyer published Handling Electronic Documents Purloined by a Client. I recommend the article and suspect it might ring familiar to family law practitioners.  It “considers ethical issues raised when a client in pending litigation forwards her lawyer electronic documents that the client obtained without permission from the opposing party’s computer.”

Anyhow, I’m blathering.  I’m not convinced that there’s an absolute prohibition on possessing and attempting to use nonprivileged information fortuitously received.  Nevertheless, there are likely some gift horses worth looking in the mouth.  If the issue arises here, contact me for a confidential discussion of a lawyer’s duties under Vermont law, including both the Rules of Professional Conduct and the Rules of Civil Procedure.

Finally, I’m only in Season 2, but something tells me that Jessica Pearson and Harvey Specter wouldn’t need an advisory opinion to proceed.

Image result for jessica pearson and harvey specter

 

 

I Love You, Now Die: what an HBO documentary can tell us about the duty of tech competence.

A few minutes ago, I finished HBO’s I Love You, Now Die: The Commonwealth v. Michelle Carter.  Directed by Erin Lee Carr, the two-part documentary delves into the relationship between teenagers Michelle Carter and Conrad Roy, and the involuntary manslaughter charge that was filed against Carter following Roy’s suicide.

As a person, I found the documentary disturbing, sad and disturbingly sad.  One life tragically lost, many others tragically altered, if not ruined.  I don’t have kids, but I imagine that anyone who does will be deeply affected by the story.

As bar counsel, I was struck differently.  In my professional capacity, the Carter trial serves as a compelling example of lawyers on both sides demonstrating tech competence.

I’m not going to divulge spoilers.  Suffice to say, at trial, both sides made extensive use of thousands of text messages that the defendant and decedent exchanged or sent to others.  The prosecution effectively putting the accused on the stand even though she did not testify, Carter’s lawyers essentially using the decedent’s own “words” to construct a defense.

Indeed, as you’ll learn if you watch, the verdict turned on a single text message.

From a professional responsibility perspective, the documentary makes me more certain than ever that the failure to understand that ESI exists, as well as the failure to understand how to access, review, and use it, likely violates the duty of competence.

Interested?  The trailer is here.

i love you now die