Monday Morning Answers #195

Hello.  Friday’s questions are here.  The answers follow today’s Honor Roll.

Also, here’s an update on Vermont State Court operations that I posted Friday afternoon.  I’ll continue to update as decisions are made.

Honor Roll


Question 1

Lawyer & Client are engaged in a sexual relationship.  Which is most accurate?

  • A.   It’s a violation.
  • B.   Unless the Client waived the conflict, it’s a violation.
  • C.   If Lawyer & Client have the same employer, it’s not a violation.
  • D.  It’s a violation unless the sexual relationship pre-dates the representation.

This is Rule 1.8(j).  The Court adopted it in January 2018. I blogged often this issue, including this post upon the Court’s adoption of the rule.

Question 2

Lawyer represents Client.  Opposing Party is not represented by counsel.

Lawyer and Opposing Party negotiate a resolution that must be reduced to writing.  Lawyer prepares the document and presents it to Opposing Party for signature.  Opposing Party asks, “what do you think it means if I sign this?”

Which is most accurate?

  • A.   Lawyer may not respond other than to say, “I can’t give you any advice.”
  • B.   Lawyer must advise Opposing Party to contact an attorney for advice.
  • C.   Lawyer may not go through with the resolution until Opposing Party has been given a reasonable period to contact an attorney for advice.
  • D.  So long as Lawyer explains that she represents Client and that Client is adverse to Opposing Party, Lawyer may explain her own view of the meaning of the document.

Be careful here.  Yes, “D” is the answer.  Rule 4.3 covers a lawyer’s duties when dealing on behalf of a client with an unrepresented person. The final sentence to Comment [2] reads:

  • “So long as the lawyer has explained that the lawyer represents an adverse party and is not representing the person, the lawyer may inform the person of the terms on which the lawyer’s client will enter into an agreement or settle a matter, prepare documents that require the person’s signature and explain the lawyer’s own view of the meaning of the document or the lawyer’s view of the underlying legal obligation.”

Question 3

Red and Blue are involved in a legal dispute.  Yesterday, each retained counsel.  Red hired Attorney, while Blue hired Lawyer.

Attorney & Lawyer do not work in the same firm.  However, they’re married to each other.

Which is most accurate?

  • A.  Attorney or Lawyer must withdraw.
  • B.  Attorney and Lawyer must withdraw.
  • C.  Ordinarily, both Attorney & Lawyer must disclose their marriage to their respective clients, and each must receive informed consent to continue the representation.
  • D.  Nothing in the rules covers this.

Rule 1.7 governs situations in which a lawyer’s duties to a current client are limited by duties owed to someone other than the client.  Per Comment [11], when opposing lawyers are “related by blood, marriage or civil union” there’s a risk that client confidences will be revealed or that the relationship will limit a lawyer’s exercise of independent judgment on behalf of the client. As such, “a lawyer ordinarily may not represent a client in a matter where [the lawyer’s spouse] is representing another party, unless each client gives informed consent.”

This is an area in which informed consent is allowed, but one in which, to me, it’s best to decline a client whose adversary is represented by your spouse.

Question 4

There’s a rule that permits a lawyer to disclose otherwise confidential information relating to the representation of a client in order to respond to “establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and client.”

Of the following, which is most likely NOT to constitute “a controversy” between the lawyer and client that would permit the lawyer to disclose confidential information?

  • A.   Client sues Lawyer for malpractice.
  • B.   Client files a complaint against Lawyer with the Fee Arbitration Committee
  • C.   Client files a disciplinary complaint against Lawyer with the PRB.
  • D.   Client posts a negative online review about Lawyer.

I intend to blog about this later this week. For now, remember: courts & bar associations have been clear in decisions & advisory opinions: a negative online review is NOT a controversy between lawyer & client that allows a lawyer to disclose otherwise confidential information.

Question 5

Ts & Ps to all affected by COVID-19, including Tom Hanks.

Hanks’ first Academy Award for Best Actor was for his role as Attorney Andrew Beckett.  In the movie, Beckett sued his law firm for wrongful termination.  He claimed that the firm (1) fired him because he had AIDS; and (2) that the firm’s alleged justification for firing him for missing an important deadline was one that the firm concocted.

Attorney Joe Miller represented Hanks at trial and won.  Competence!

A few years earlier, the actor who played Miller won the Academy Award for Best Supporting Actor for his role as Private Silas Trip in a movie set during the U.S. Civil War.   Several years later, the same actor won the Academy Award for Best Actor for his work as Detective Alonzo Harris, an unethical LA police officer.

Name the actor.

Denzel Washington.

Image result for denzel washington philadelphia