Monday Morning Answers #194

Michael

You can’t get to Friday without going through Monday!

Friday’s questions are here.  Today’s answers follow the Honor Roll.

Honor Roll

Answers

Question 1

Which is most accurate in Vermont?

  • A.  By statute, lawyers to carry malpractice insurance.
  • B.  The Rules of Professional Conduct require lawyers to carry malpractice insurance.
  • C.  The Rules of Professional Conduct affirmatively require a lawyer who does not carry malpractice insurance to disclose that fact to prospective clients.
  • D.  There is no requirement that lawyers carry malpractice insurance.

Rule 1.4 requires a lawyer to provide a client with sufficient information to make informed decisions about the representation.  Arguably, an informed decision to retain a lawyer includes knowing whether the lawyer carries liability insurance. For now, however, there is no affirmative requirement that Vermont lawyers carry liability insurance or disclose to prospective clients the fact that they do not.  On March 27, the Professional Responsibility Board will begin to study whether to require one or other.

Question 2

New Client wants to retain Lawyer in a matter in which New Client’s interests are materially adverse to the interests of Lawyer’s Former Client.  The new matter is substantially related to the matter in which Lawyer represented Former Client.  However, Lawyer does not remember any details about Former Client’s matter and doesn’t recall receiving any confidential information from Former Client.

Which is most accurate?

  • A.  It depends whether the Lawyer’s representation of Former Client ended more than 7 years ago.
  • B.  It depends whether Lawyer has access to a copy of the file kept in Former Client’s original matter.
  • C.   If the circumstances are such that it is reasonable to believe that Lawyer did not receive (or does not recall receiving) confidential information from Former Client, Lawyer may represent New Client even over Former Client’s objection.
  • D.  Because the new matter is substantially related to the former, Lawyer is presumed to have received confidential information from Former Client.  Absent Former Client’s informed consent confirmed in writing, Lawyer cannot represent New Client.

It’s Rule 1.9(a).  For more, see this blog post.

Question 3

Attorney called me with an inquiry.  I listened, then said “quarterly? No.  It has to be ‘timely,” with ‘timely’ defined as ‘no less frequently than monthly.’”

Given my response, Attorney called to discuss?

  • A.   Backing up client data that is stored in the cloud.
  • B.   The rule that makes it unethical to fail to file a tax return.
  • C.  The rule that requires a lawyer to keep a client reasonably updated as to the status of a matter.
  • D.   Trust account reconciliation.  V.R.Pr.C. 1.15A(a)(4).

Question 4

True story:  yesterday, I heard from several different lawyers on the same issue.  While none works in the same firm, each had received an email offering to sell them the same domain name.  Each lawyer contacted me to ask whether the domain name complied with the rules.  More specifically, whether the domain name constituted a prohibited “unsubstantiated comparison.”

The lawyers who contacted me did so out of concern about what rule(s)?  The rule(s) on _________:

  • A.  Confidentiality of Client Data
  • B.   Safeguarding Client Property (Trust Account Scams)
  • C.   Communications Regarding a Lawyer’s Services & Advertising
  • D.   Referral Fees

Rule 7.1 prohibits misleading communications about a lawyer’s services.  Per Comment [3], “an unsubstantiated comparison of the lawyer’s services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated.”  See, In re PRB Dkt. 2002-093, 2005 VT 2 (Firm’s advertisement that “WE ARE THE EXPERTS IN” a specific practice area violates is an unsubstantiated comparison that violates the former rule.)

Question 5

It’s been quite a past few months for this Illinois lawyer.

Last August, the Illinois Attorney Registration and Discipline Commission filed a disciplinary complaint charging the lawyer with misconduct.  Citing federal criminal charges & convictions related to corruption, extortion, and conspiracy to do both, the complaint alleged that the lawyer had violated the rule that prohibits lawyers from engaging in conduct that involves a serious crime.

As of February 1, it wasn’t yet clear that the lawyer would be free to attend last week’s disciplinary hearing.  Turns out, on February 19, after help from well-known politicians on each side of the aisle, the lawyer got some good news and, as a result, could’ve gone to the hearing if he had wanted to.  He didn’t attend.

Tuesday, a disciplinary panel recommended that the Illinois Supreme Court disbar the lawyer.

As a result of holding a few high-profile non-legal jobs, the lawyer hasn’t engaged in the active practice of law since 1995.  Referring to the fact that the lawyer did not contest the disciplinary case and might not appeal the disbarment recommendation, the lawyer said through a spokesperson:

  • “Imagine yourself sitting on a plane and then the pilot announces before takeoff that he hasn’t flown in 25 years. Wouldn’t you want to get off that plane? I don’t want to hurt anybody.”

How noble.

Name the lawyer.

Former Illinois Governor Rod Blagojevich.  The ABA Journal has the story here.

Image result for blago disbarred