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!


  • 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

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.

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