Monday Morning Honors

Good Monday Morning!

A few reminders:

1. My tips on practicing reasonably during the public health crisis;
2. We’re down to 16 in the bracket! To vote, go to THE SWEET 16; and,
3. Friday’s questions.  Spoiler alert, the answers follow today’s Honor Roll.

Honor Roll

• Karen Allen, Esq.
• Penny Benelli, Dakin & Benelli
• Alberto Bernabe, Professor, John Marshall Law School
• Anna Black, Stackpole & French
• Honorable John M. Conroy, United States Magistrate Judge, District of Vermont
• Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labor
• Andrew Delaney, Martin Delaney & Ricci Law Group
• Erin Gilmore, Ryan Smith & Carbine
• Robert Grundstein, Esq.
• Glenn Jarrett, Jarrett & Luitjens
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• John Leddy, McNeil, Leddy, & Sheahan
• Pam Loginsky, Washington Association of Prosecuting Attorneys
• Lon McClintock, McClintock Law Offices
• Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
• Hal Miller, First American
• Herb Ogden, Esq.
• Jim Runice, Ouimette & Runcie
• Jay Spitzen, Esq.
• Jonathan Teller-Elsberg, Vermont Law School, JD Candidate
• Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

Attorney called me with an inquiry.  Attorney said “Mike, I represent a witness.  The defendant’s lawyer keeps contacting my client directly. I asked the lawyer to stop.  Lawyer aid Lawyer doesn’t need my permission because my client is only a witness, not a party.  Is Lawyer right?”

What was my response?

• A.   Yes.
• B.   The rule is unclear.
• C.   It depends.  Is your client a material witness?
• D.  Lawyer is wrong. The rule applies to any person represented in a matter.

Rule 4.2 prohibits a lawyer from communicating with “a person the lawyer knows to be represented by another lawyer in the matter.”  The rule is quite clear. Just in case, however, Comment [2] says “This rule applies to communication with any person who is represented by counsel concerning the matter to which the communication relates.”

For more on Rule 4.2 (and Rick Springfield!) see my January post The No-Contact Rule.

Question 2

True or false.

The rule on trial publicity only applies to criminal cases.

False.  Rule 3.6 applies to any “lawyer who is participating in or has participated in the investigation of a matter.”  The rule prohibits:

• extrajudicial statements,
• that the lawyer knows or reasonably should know,
• will be disseminated publicly, and,
• will have a substantial likelihood of prejudicing an adjudicative proceeding.

Question 3

With respect to legal ethics, the phrase “going up the ladder” is most often used in connection with the duties of an attorney who:

• A.  is bound to report another attorney to disciplinary authorities.
• B.  represents an organization.
• C.  is being paid by someone other than the client.
• D. paints houses on the side.

Rule 1.13 governs lawyers with organizational clients.  Respectively, Paragraphs (b) and (c) set out the situations in which a lawyer must refer conduct to the highest authority in the organization or outside the organization.

Question 4

At one of the Zoom seminars I intend to present, you wake from a brief nap to me discussing conflicts of interest.  If I’m doing my job, it’s unlikely that I will use the word/phrase _____-:

• A.  material limitation.
• B.  former.
• C.  held in connection with a representation.
• D.  prospective.

And, if I’m doing my job, it’s your resolve that breaks.

The phrase “held in connection with a representation” is one you’ll hear me use in a presentation on trust accounts and client property.   Of course, with trust accounts, it’s tough to find a hook that brings you back.

Question 5

I’ve been running the Professional Responsibility & Legal Ethics Bracket. It’s based on the NCAA March Madness brackets.  In 3 of the 4 quadrants, the contestants are terms and phrases associated with legal ethics.   To vote in the 2nd round, go here.

The contestants in the 4th quadrant are quotes from My Cousin Vinny.  That’s a hint for question 5!  It’s a “fill-in-the-blank” question.

I’ll give Bill Belichick his due: when it comes to coaching football, the long-time Patriots coach clearly has satisfied the duty of competence.  Of course, as a Steelers fan stuck behind enemy lines in New England, I’ve always suspected Belichik’s team of skirting the ethics rules.  For example, 2015’s notorious Deflategate Scandal that involved Tom Brady and underinflated footballs.

At a press conference, Belichick defended his team’s ethics by blaming the deflated footballs on the weather:

• “”So the atmospheric conditions, as well as the true equilibrium of the ball, is critical to the measurement.”

Asked further about the air pressure measurements in the footballs, Belichick, normally not one to say anything to suggest he’s aware of pop-culture, replied:

• “”I’m not a scientist. I’m not an expert in footballs. I’m not an expert in football measurements. I’m just telling you what I know. I would not say I’m _______________ of the football world, as she was in the car-expertise area.”

MONA LISA VITO

And speaking of Ms. Vito! One of her lines remains alive in the Sweet 16 bracket.  Go vote!

Peace.