Guidance to Avoid Assisting Clients to Commit Crimes.

Rule 1.2(d) of the Vermont Rules of Professional Conduct states:

• “A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.”

Vermont’s 1.2(d) mirrors ABA Model Rule 1.2(d).  Yesterday, and as reported by the ABA Journal, the ABA’s Standing Committee on Ethics and Professional Responsibility (the Committee) issued Formal Opinion 491 (the Opinion). The opinion provides guidance on complying with Rule 1.2(d).

At first glance, one might conclude that the opinion is of little value here. After all, the introduction’s opening sentence refers to “international counter-terrorism enforcement and efforts to combat money-laundering,” phrases more likely to evoke the plotlines of the pandemic’s most-streamed shows than images of a Vermont practitioner.  Still, over the years, I’ve had a decent number of inquiries on the rule. Further, to the extent it interprets the rule, the opinion provides valuable guidance to any lawyer whose client might break bad. So, I thought I’d call your attention to the opinion. After all, Vermont has chemistry teachers too.

Here’s a very brief outline.  Essentially, the nutshell’s nutshell.  This post is not a substitute for reading the full opinion.  But likely more fun.

First, it’s okay to believe that your client’s goals, objectives, and transactions are legit. Still, the law is clear: there will be situations in which Rule 1.2(d) requires a lawyer to inquire further.  That is, while the rule prohibits a lawyer from assisting a client in conduct that the lawyer “knows is criminal or fraudulent,” don’t hang your hat on “but I didn’t know for sure!”

(we should allow pictures in legal briefs.  maybe we do. if not, we should.)

Anyhow, as the opinion indicates, facts known to the lawyer might be “so strong” as to require the lawyer to stop, consult with the client about the lawyer’s professional duties, and inquire further.

For one, Rule 1.4(a)(5) requires a lawyer “to consult with a client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct.”  For another, Rule 1.16(a)(1) requires withdrawal when continued representation will result in a violation of the rules.

Further, the opinion reminds us that “if facts before the lawyer indicate a high probability that the client seeks to use the lawyer’s services for criminal or fraudulent activity, a lawyer’s conscious, deliberate failure to inquire amounts to knowing assistance of criminal or fraudulent conduct.”

For more, check out the opinion or get in touch. Those of you who represent organizational clients, there are good tips on Page 8 as to your duties when you know that an officer, employee or someone associated with the organization acts, intends to act, or refuses to act in such a way as to violate the law.

Oh, and I’d be remiss not to ask a question that I’ve used at several pub quizzes:

• Rule 1.2(d) prohibits a lawyer from assisting a client to engage in conduct that the lawyer knows is criminal.  The rule is particularly relevant to Vermont lawyers who advise clients on issues related to a particular industry/product.  What industry/product?

Hint: Rule 1.2(d) draws no distinction between state and federal crimes, and no distinction between crimes that are enforced more vigorously than others.

Answer: the cannabis/marijuana industry.

Schedule I of the Controlled Substances Act continues to make marijuana illegal under federal law.  However, in 2016, the Vermont Supreme Court approved a proposal to add Comment [14] to Rule 1.2(d).  The “new” comment authorizes a lawyer to advise and assist a client on matters that the lawyer reasonably believes are permitted under Vermont’s marijuana statutes, rules, and regulations.  Of course, the lawyer must also advise the client of the potential consequences of the client’s actions under federal law.

In the end, the ABA Opinion includes an important reminder.

• “A lawyer’s reasonable judgment under the circumstances presented, especially the information known and reasonably available to the lawyer at the time, does not violate the rules. Nor should a lawyer be subject to discipline because a course of action, objectively reasonable at the time chosen, turned out to wrong with hindsight.”

Finally, I don’t know what the rules are in New Mexico. So, I’m not sure whether this qualifies as reasonable judgment under the circumstances:

 

 

NYC Bar Proposes “Humanitarian Exception” To Rule of Professional Conduct.

I’m not sure what it says about the profession’s conduct rules when the discussion is whether to add a “humanitarian exception.”

Before I get to the meat of this post, here’s a quick refresher on the rule at issue.  Like Vermont’s, New York’s Rules of Professional Conduct prohibit financial assistance to clients.  Two exceptions are common to each state:

1. advancing court costs and litigation expenses, with repayment contingent upon recovery; and,
2. paying court costs and litigation expenses for indigent clients.

Generally, however, and as made clear by Comment [10] to V.R.Pr.C. 1.8:

• “Lawyers may not subsidize lawsuits or administrative proceedings brought on behalf of their clients, including making or guaranteeing loans to their clients for living expenses, because to do so would encourage clients to pursue to lawsuits that might not otherwise be brought and because such assistance gives lawyers too great a financial stake in the litigation.”

In 2018, the New York City Bar Association proposed to amend New York’s version of Rule 1.8.  The proposal, which has worked its way through the review process and is pending final approval by the Administrative Board of the Courts, would add another exception:

“A lawyer providing legal services without fee, a not-for-profit legal services or
public interest organization, a law school clinical program, a law school pro bono program, or a lawyer employed by or volunteering for such an organization or program may provide financial assistance indigent clients, provided that

(i) the lawyer, organization, or program does not promise or assure financial assistance . . . to a prospective client before retention, or as an inducement to continue the lawyer-client relationship, and

(ii) the lawyer, organization, or program does not publicize or advertise a willingness to provide such financial assistance to clients.”

The recommendation is premised upon the argument

• “that the humanitarian exception would serve a valuable purpose and that the proposed limitations in the rule – namely that the lawyer would not be permitted to offer financial assistance as an inducement to continue the representation and would not be permitted to advertise the availability of financial assistance – would mitigate any risk of abuse. In addition, because the humanitarian exception would be limited to pro bono representation of indigent clients, the risk that the rule could be exploited for pecuniary gain would be even further limited.”

As reported by Law.Com, last week, the NYCBA asked that the so-called “humanitarian exception” be adopted immediately.  The NYCBA’s request, which came in response to the COVID-19 crisis, is here.

A few years ago, I spent time at CLEs and meetings floating ideas about amending our rules, including and amendment to Rule 1.8(e) that is similar to the language proposed in New York.  It would have included this limitation:

• “Financial assistance under this rule may provide but shall not exceed that minimum sum necessary to meet the client’s, the client’s spouse’s, and/or dependents’ documented obligations for food, shelter, utilities, insurance, non-litigation related medical care and treatment, transportation expenses, education, or other documented expenses necessary for subsistence.”

To label the response “lukewarm” would be accurate only two places on earth: the Arctic and Antarctic.  So, I never made the proposal, choosing instead to live to fight another day.

It might be time to renew the fight.

 

Monday Morning Honors

Good morning.

Last night, I filmed another in the Garage Bar series of CLEs: Pro Bono & Professional Responsibility. It includes some of my thoughts on the need and the key rules to remember.  It’s 30 minutes, which brings the Garage Series to 6 hours since we started isolating.  Keep rowing!

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

Honor Roll

• Penny Benelli, Dakin & Benelli
• Andrew Delaney, Martin Delaney & Ricci Law Group
• Jennifer Emens-Butler, Education & Communication, Vermont Bar Association; VBA Past-President
• Erin Gilmore, Ryan Smith & Carbine
• Laura Gorsky, Esq.
• Robert Grundstein, Esq.
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
• Jeffrey Messina, Bergeron Paradis Fitzpatrick
• Hal Miller, First American Title Insurance
• Dan Richardson, Tarrant Gillies & Richardson; VBA Past-President
• Kristen Shamis, Monaghan, Safar, Ducham
• Jay Spitzen, Esq.
• Robyn Sweet, CORE Registered Paralegal, Cleary Shahi  & Aicher
• Jonathan Teller-Elsberg, Vermont Law School, JD Candidate
• Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

How many hours of pro bono legal services do the Rules suggest a lawyer should provide each year?

• A.   50, and the rule applies to all lawyers. 
• B.   50, but the rule exempts government lawyers.

Rule 6.1 is clear: “Every lawyer has a professional responsibility to provide legal services to those unable to pay.”

If you’re interested in opportunities to provide pro bono legal services, please contact Mary Ashcroft.  Mary is the Vermont Bar Association’s Legal Access Coordinator. Here is a list of several low bono & pro bono programs. Or, check out the Vermont Volunteer Lawyers Project.

Question 2

I often mention “7 Cs of Legal Ethics.”  Each is a single word that begins with the letter “C.”  The construct is a helpful tool to remember the basics.

Anyhow, there is a rule that includes an exception that allows a lawyer to do something otherwise prohibited in order “to establish a claim or defense . . . .in a controversy between the lawyer and client.”

What is the “C” associated with the rule?

CONFIDENTIALITY.  Rule 1.6(a) prohibits a lawyer from disclosing information relating to the representation of a client.  Rule 1.6(c)(3) includes the exception stated in the question.

Question 3

In Vermont, a lawyer has a duty to take reasonable remedial measures upon learning that a client or witness called by the lawyer has offered material evidence that is false.  Per the applicable rule, this includes, if necessary, disclosure to the tribunal.  By rule, how long does the duty continue?

• A.  until the lawyer is allowed to withdraw.
• B.  until the conclusion of the proceeding.  
• C.  forever.
• D.  Trick question.  There is no circumstance in which a lawyer is authorized to inform a tribunal that a client submitted false evidence, even if the evidence was material.

V.R.Pr.C. 3.3(c).  Per Comment [13], “[a] proceeding has concluded within the meaning of this rule when a final judgment in the proceeding has been affirmed on appeal or the time for review has passed.”

Question 4

Former Client contends that Attorney committed malpractice.  They meet.  Former Client is not represented.  Former Client and Attorney discuss a settlement.

By rule, what must Attorney do before settling?

• A.  advise Former Client in writing of the desirability of seeking independent legal advice related to the matter.
• B.  give Former Client a reasonable amount of time to seek independent legal advice related to the matter.
• C.  stop settlement discussions because lawyers are prohibited from settling malpractice claims with former clients who are not represented by counsel.
• D.  A and B. V.R.Pr.C. 1.8(h)(2).

Question 5

Speaking of Arrested Development, the show includes 3 of my favorite fictional attorneys. Julia Louis-Dreyfuss appeared in a handful of episodes as Maggie Lizer, an ethically challenged prosecutor.

The other two attorneys are Barry Zuckerkorn and Bob Loblaw.  The former struggles with the duty of competence, while the latter runs the greatest blog in the history of blogs: The Bob Loblaw Law Blog.  Here’s Zuckerkorn’s business card.   For the question that follows, it’s literally the second biggest hint in the history of hints, behind only the hint in the introduction to the quiz.

Arrested Development debuted in 2004.  However, the actors who play Zuckerkorn and Loblaw also appeared together in a popular comedy that debuted in 1974.  Name that show that debuted in 1974.

Henry Winkler (Zuckerkorn) and Scott Baio (Loblaw) also appeared together in Happy Days.  Kudos to Dan Richardson for noting it was originally entitled both Love and the Television Set and Love and the Happy Days when it premiered as an episode on the anthology series Love, American Style.

 

Five for Friday #201

Welcome to Friday!

As usual, much of my Thursday night involved pondering Friday’s post.  I settled on converting “201” into “two of one.”  It eventually led to the recommendation I’m going to make for your weekend.  But first, let me explain the “two of one” construct.

Ozark is a good example.  Of the shows I’ve binged, re-binged, and re-re-binged over the past 7 weeks, Ozark is my favorite. When Season 3 dropped, I re-watched Season 2 to remind myself what had happened.  There it is: 2 seasons of 1 show.  Two of one.

I don’t know how y’all stream, but I’m monogamous. Whatever show I’m into, until I’ve made it through the entire show, it’s the only show I watch.

Confession: I stepped out on Ozark, Season 3. 

Bored, I thought it’d be fun to alternate episodes of Ozark with episodes of another of my all-time favorite shows, Arrested Development.  For those of you who don’t know, Jason Bateman stars in each.  Apparently more addled with the fog & malaise of the times than I’d realized, it’s disturbing how easily entertained I was as I interspersed the shows. No joke: I laughed out loud picturing Michael and the Bluth family laundering money for the cartel while Marty Byrde makes Charlotte run The Banana Stand for the summer.

Anyhow, two shows starring Jason Bateman.  Two of one.

My “two of one” also includes music.

I could put the concert version of “The Weight” by The Band on repeat, stream it to the speakers in the Garage Bar, and listen all night.  During the pandemic, however, I’ve been mesmerized by the cover of “The Weight” that Robbie Robertson, Ringo Starr, and many others did for Playing For Change.  They released the video last September, long before we’d ever heard of the coronavirus.  I didn’t discover it until late March.  I’m fascinated by the extent to which the video feels like social distancing, and how it reflects our current use of technology to generate a sense of togetherness during a global crisis.

Anyhow, two versions of “The Weight.”  Two of one.

I’ve blathered long enough. Here’s my recommendation for the weekend.

Literally and figuratively, every single one of us could use a sunny day.  Well, if a “sunny day” can be reduced to a single thing, we’re about to get two of that thing. Two of one.  Whatever it is that you do to find peace, love and happiness on a sunny day, I hope you do it (safely) this weekend.

Keep rowing folks.  Happy Days are ahead.

Onto the quiz!

Rules

• None! Open book, open search engine, text-a-friend.
• Exception:  Question 5.  We try to play that one honest.
• 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.
• Share on social media.  Hashtag it – #fiveforfriday

Question 1

How many hours of pro bono legal services do the Rules suggest a lawyer should provide each year?

• A.   50, and the rule applies to all lawyers.
• B.   50, but the rule exempts government lawyers.

Question 2

I often mention “7 Cs of Legal Ethics.”  Each is a single word that begins with the letter “C.”  The construct is a helpful tool to remember the basics.

Anyhow, there is a rule that includes an exception that allows a lawyer to do something otherwise prohibited in order “to establish a claim or defense . . . .in a controversy between the lawyer and client.”

What is the “C” associated with the rule?

Question 3

In Vermont, a lawyer has a duty to take reasonable remedial measures upon learning that a client or witness called by the lawyer has offered material evidence that is false.  Per the applicable rule, this includes, if necessary, disclosure to the tribunal.  By rule, how long does the duty continue?

• A.  until the lawyer is allowed to withdraw.
• B.  until the conclusion of the proceeding.
• C.  forever.
• D.  Trick question.  There is no circumstance in which a lawyer is authorized to inform a tribunal that a client submitted false evidence, even if the evidence was material.

Question 4

Former Client contends that Attorney committed malpractice.  They meet.  Former Client is not represented.  Former Client and Attorney discuss a settlement.

By rule, what must Attorney do before settling?

• A.  advise Former Client in writing of the desirability of seeking independent legal advice related to the matter.
• B.  give Former Client a reasonable amount of time to seek independent legal advice related to the matter.
• C.  stop settlement discussions because lawyers are prohibited from settling malpractice claims with former clients who are not represented by counsel.
• D.  A and B.

Question 5

Speaking of Arrested Development, the show includes 3 of my favorite fictional attorneys. Julia Louis-Dreyfuss appeared in a handful of episodes as Maggie Lizer, an ethically challenged prosecutor.

The other two attorneys are Barry Zuckerkorn and Bob Loblaw.  The former struggles with the duty of competence, while the latter runs the greatest blog in the history of blogs: The Bob Loblaw Law Blog.  Here’s Zuckerkorn’s business card.   For the question that follows, it’s literally the second biggest hint in the history of hints, behind only the hint in the introduction to the quiz.

Arrested Development debuted in 2004.  However, the actors who play Zuckerkorn and Loblaw also appeared together in a popular comedy that debuted in 1974.  Name that show that debuted in 1974.

 

 

 

 

Supervise Your Trust Account. And Don’t Say I Didn’t Warn Ya!

Not every blog post is an easy ride.  So, buckle up, cuz this one is meant to make you feel the bumps. And despite the high mileage, it’s still got the original shocks & struts.

Yesterday I did a virtual CLE for the Lamoille County Bar Association.  Near the end, someone asked what legal ethics issue keeps me up at night worrying for lawyers. I was quick to respond.  Before I share my response:

• • You can say you don’t like it.
  • You can say I’m too cynical.
  • You cannot say I didn’t warn ya.

I worry for the lawyers working remotely who are trusting that a trusted employee isn’t taking money from trust.  

I’ve worked in legal ethics almost as long as a first-year law student has been on this earth. Embezzlement is a thing even in the best of times. In my experience, trust account embezzlement is as much an offense of opportunity as it is malice.  That is, when they realize you aren’t paying attention, they realize an opportunity.  It often starts simple: “I’ll pay this orthodontist bill, put it back once we get the tax refund, and nobody will know the difference.” 

That’s like me saying I’ll stop after one Oreo.

Times aren’t good now.  They will get better.  And, when they do, make sure you still have a law license to enjoy them.  Supervise your trust account. Doing so will never go out of Style.

“But Mike, first of all, my staff would never steal. Second of all, if another lawyer’s did, how could that possibly impact the lawyer’s license?”

The duty to safeguard client funds is non-delegable. And, sometimes, the most trusted employee is a nightmare dressed like a daydream.

If you think I’m exaggerating, I urge you to read this post in the ABA Journal.  When you do, make sure to click on “the board said.”  Then, as you are reading the disciplinary decision, keep the ending in mind: the lawyer’s license to practice law was suspended for 6 months.  Sure, on appeal, the New Jersey Supreme Court reduced the suspension to 3 months. I guess there’s that.  Still, a nasty scar.

When it comes to your trust account, even with your most trusted employees, trust, but verify.  Otherwise, there’s a Blank Space on our complaint form, and that’s where clients will write your name.

Don’t say I didn’t warn ya.

Get ready! National Lawyer Well-Being Week is only 12 days away!

National Lawyer Well-Being Week begins May 4.  Now is the time to plan your involvement.

Here’s the key message from the organizers:

• “Well-being is an institution-wide responsibility. When our professional and organizational cultures support our well-being, we are better able to make good choices that allow us to thrive and be our best for our clients, colleagues, and organizations. It is up to all of us to cultivate new professional norms and cultures that enable and encourage well-being.”

Each day has its own theme:

I can hear you now!!  “Great Mike, what am I supposed to do with an infographic??”

Not so fast my contrarian friends!

The organizers have made available a veritable plethora of resources on each day’s theme, resources that I’m here to share. Thus, much of the rest of this post will be a long list.  Intentionally so!  Like ordering soup on Planet Seinfeld, there will be no excuses for you!

But first, don’t limit wellness to a week.  Don’t limit a component of wellness to a single day.  Make wellness a habit.

For instance, imagine that today is “National Running Day!”  I’d easily find the motivation to get out to run with the enthusiasm and vigor of the event, eager to post my apres-run selfie with the obligatory hashtag.  But a Wednesday run won’t prepare me for October’s Vermont City Marathon.  Instead, I must make running a habit.

That’s wellness. Make it a habit.  Because life is a marathon.

Finally, like a marathon, wellness begins with a single step.  And there’s no reason to wait until National Lawyer Well-Being Week to take the first step.

Thanks for listening.  Get involved!

Here’s the promised list of resources. I am brazenly taking them from National Task Force’s Lawyer Well-Being Week site.

The Entire Week

• 46 Activity Ideas
• Remote Participation Guide

Monday – Stay Strong 

• Tips to Optimize Your Brain
• Sleep Hygiene Checklist
• Physical Health Worksheet
• Defeat Digital Distractions
• Desk Yoga
• Walk or Run

Tuesday – Align

• Well-Being & Meaningful Work
• 5 Ways to Foster Meaningful Work

Wednesday – Engage & Grow

• Psychological Capital: Build Mental Strength & Flexibility
• Take Charge of Your Well-Being with Confidence
• Use Your Strengths
• Tips for the Introverted Lawyer
• Book Recommendations

Thursday – Connect

• Do Acts of Kindness
• Enable Well-Being Through Inclusion
• Mind Your Marriage & Similar Relationships

Friday – Feel Well

• Fuel Health & Happiness with Positive Emotions
• Create Your Formula to Well-Being
• An Emotionally Intelligent Path to Well-Being
• Grow Your Gratitude
• How to be Happy? Make it a Priority
• There’s Data on how Lawyers can be Happy
• Mindfulness to Boost Performance
• Overcoming Public Speaking Anxiety
• Reframe Stress & Adversity
• Tame Negative Emotions
• Well-Being for Managers & Supervisors

Finally, the Task Force has also compiled a list of  wellness & well-being resources related to COVID-19

 

 

 

 

Keep Your Pants On.

In 22 years of reviewing disciplinary complaints and fielding ethics inquiries, there have been many times I’ve concluded: “surely, I’ve now seen & heard it all.”

So far, I’ve always concluded wrong.

Yesterday, I read the ABA Journal’s post Lawyer who took off pants at security checkpoint fights bid to be ousted from representing clients.  The story was also covered by Law360.

The story involves an attorney who represents a law firm that is being sued for allegedly advising its clients to default on payments owed to a timeshare operator. The attorney is lead counsel for the defense and is appearing pro hac vice.  From here, I will refer to the attorney as “Lead Counsel.”

In January, courthouse security asked Lead Counsel to remove his belt before going through a metal detector.  Lead Counsel removed his belt, and his pants too.  As a result, the court ordered Lead Counsel to show cause as to why his pro hac vice status should not be revoked.

Before that issue could be resolved, local defense counsel moved to withdraw for health reasons.  Plaintiffs’ lawyers filed an opposition.  Plaintiffs’ lawyers don’t object to local counsel withdrawing, as long as Lead Counsel’s pro hac vice status is revoked.

The opposition, which recites discovery sanctions the court has already imposed against Lead Counsel and his clients, strikes me as noteworthy.  My guess is that it’s not often that opposing counsel’s discovery sanctions & violations are the second argument made in support of a request to revoke opposing counsel’s pro hac vice appearance.  But I suppose that’s what happens when the first argument is “you’re already considering revoking him for taking his pants off at security.”

Lead Counsel filed a reply to the opposition.  Like the opposition, it strikes me as noteworthy.  My guess is that it’s not often that an attorney has to include in a pleading the phrase that appears in the first sentence of the first full paragraph on page 2:

“Lead Counsel has duly explained the facts and circumstances that lead to the unfortunate
necessity of removing his belt, together with his trousers . . .“

But I suppose that’s what happens when you remove your trousers at courthouse security.

I’d like to say “surely, I’ve now seen and heard it all.”  Alas, experience tells me I’d be wrong.  I’m serious.

And don’t call me Shirley.

.

Supreme Court Updates Judicial Emergency Order

On April 21, the Vermont Supreme Court amended Administrative Order 49, the order declaring a Judicial Emergency.  Today’s amendments are here.

Reading this blog is not a substitute for reading the Court’s Order and amendments.  That being clear, today’s amendments:

1. authorize hearings on motions to modify or enforce parent-child contact orders in juvenile cases when the Superior Court, in its discretion, determines that an emergency exists;
2. authorize hearings on motions to modify or enforce parent-child contact orders in domestic cases when the Supeior Court, in its discretion, determines that an emergency exists;
3. make changes to the rules that govern audio & visual hearings (V.R.C.P. 43.1; V.R.F.P. 17, V.R.Cr.P. 43); and,
4. require all who enter Judiciary buildings to wear masks made of cloth over the nose and mouth.

The Order and prior amendments:

• Administrative Order 49 (the initial order declaring a Judicial Emergency)
•  March 18 amendments
• March 20 amendments 
• March 24 amendments
• March 25 amendments & Explanatory Note
• April 6 amendments & Explanatory Note
• April 9 amendments & Explanatory Note
• April 13 amendments & Explanatory Note

A consolidated Order is available on the Judiciary’s COVID-19 information page.

 

Monday Morning Honors

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

HONOR ROLL

• Penny Benelli, Dakin & Benelli
• Andrew Delaney, Martin Delaney & Ricci Law Group
• Jennifer Emens-Butler, Education & Communication, Vermont Bar Association
• Erin Gilmore, Ryan Smith & Carbine
• Laura Gorsky, Esq.
• Benjamin Gould, Paul Frank & Collins
• Robert Grundstein, Esq.
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Elizabeth Kruska, President-Elect, VBA Board of Managers
• Cassandra LaRae-Perez, Special Counsel, Gravel and Shea
• Lon McClintock, McClintock Law Offices
• Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
• Jeffrey Messina, Bergeron Paradis Fitzpatrick
• Hal Miller, First American
• Herb Ogden, Esq.
• Norman Smith, Esq.
• Jay Spitzen, Esq.
• Jonathan Teller-Elsberg, Vermont Law School, JD Candidate
• Thomas Wilkinson, Jr., Cozen O’Connor

ANSWERS

Question 1

Person calls Lawyer.  Person tells Lawyer “I have an attorney, but I’d like a second opinion.”  Lawyer is not otherwise involved in the matter in which Person has an attorney.

True or False?

Lawyer must not discuss the matter with Person unless Person’s attorney consents.

FALSE.  Per Rule 4.2, while representing a client in a matter, a lawyer shall not communicate on the subject of representation with another person who the lawyer knows is represented in the matter.  A sentence in Comment [4] states that “this rule [does not] preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter.”  The Reporter’s Note to the 2009 Amendment to Comment [4] “clarifies that Rule 4.2 does not preclude communication from a represented person who is seeking a second opinion from a lawyer who is not representing a person in the matter.”

Question 2

Absent a written agreement between Lawyer & Client saying it will be treated otherwise, a flat fee paid in advance of any services being performed by Lawyer ____________:

• A. must be deposited into trust.
• B.  must not be deposited into trust.
• C.  violates the rules.
• D.  None of the above.

Rule 1.15(c) requires fees paid in advance to be deposited in trust until earned.  The only exception is a fee that the lawyer & client have agreed to treat as earned upon receipt and that has been memorialized as required by Rule 1.5(f). I discuss the distinction in this CLE video: Flat Fees, Misappropriation & Trust Account Scams (35 minutes).

Question 3

Last month, Person met with Lawyer to discuss the possibility of forming a lawyer-client relationship.  It was their only meeting or conversation.  Last week, Person informed Lawyer that Person has decided not to retain Lawyer and will retain another attorney. You may assume that Person met with Lawyer in good faith.

Which is most accurate?

• A.  Lawyer is not bound to keep Person’s confidences.
• B.  Lawyer owes the same duty of confidentiality as would be owed to any current or former client.
• C.  The rules do not address this situation.  The rules refer only to duties owed to clients who form professional relationships with lawyers.
• D.  That consultation better have been virtual!

Per Rule 1.18(b), “even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation” except as otherwise permitted or requied by the confidentiality rules that apply to current and former clients.

Question 4

For conflicts purposes, which do the rules treat differently than the others?

• A.  a former client conflict that arises when Lawyer moves from private practice to government practice.
• B.  a former client conflict that arises when Lawyer moves from government practice to practice.
• C.  a conflict that arises from a Lawyer’s personal interest that would not create a significant risk of materially limiting the representation if handled by another attorney in Lawyer’s firm
• D.  The rules treat each the same. None is imputed to the other lawyers in Lawyer’s firm/office.

For A & B, Rule 1.11 permits screening when lawyers move to and from government practice.  Option C is direct from Rule 1.10(a), the rule that otherwise imputes conflicts to all members of the affected lawyer’s firm.

Question 5

This is my personal all-time favorite and is my only concession to 200 being anything other than something.  There’s a hint into the intro.

It’s a good thing Michael Scott isn’t a lawyer.  In an episode of The Office, Michael ran over a co-worker in the company parking lot. He was driving a company car. When asked by an HR rep if the accident happened on company property, Michael replied:

• “On company property, with company property.”

Then, citing to the Bill of Rights, Michael said “So . . .  we’re fine.”

What legal theory found in the Bill of Rights did Michael mistakenly think rendered him and the company “fine?”

DOUBLE JEOPARDY.  Then after Toby remarks that he doesn’t think Michael understands how this works, Michael adds “I’m sorry.  What is Double Jeopardy?”

Five for Friday #200

Good morning!

200 is something.

I meant that literally.  200 is, well, something.  What it is is beyond me.  But it’s definitely something.

One of the things I learned from my mom is that society values numbers that end “0.” We’ve conferred upon them a status we’ve not afforded to the other numbers.

For instance, why’s a 10th anniversary more special than a 9th or 11th?  Why aren’t the clues in Double Jeopardy worth $442, $842, $1242, $1642, and $2042?  Virtual cocktail tonight?  Perfect! Let’s say 6:03.

She’s right!

(Which is why I never set the microwave to a time that ends in 0. Bad luck!)

Anyhow, that’s what I mean by “200 is, well, something.”

But 200 is also this.  When it comes to the things that we track and celebrate, nobody gets to 200 on their own.  The only reason I’m typing this column today is because people read it.  So, today’s message is simple: thank you.

Thank you to everyone who’s ever read this blog, forwarded it to another, submitted answers to one of the quizzes, or shared with me a with a personal story prompted by one of mine.  The Friday column is, by far, the most enjoyable thing I’ve done in the all the years I’ve worked in the Professional Responsibility Program.

And that is something for which I’ll always be grateful.

Thank you!

Onto the quiz!

Rules

• None.  Open book, open search engine, text-a-friend.
• Exception:  Question 5.  We try to play that one honest.
• 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
• Share on social media.  Hashtag it – #fiveforfriday

Question 1

Person calls Lawyer.  Person tells Lawyer “I have an attorney, but I’d like a second opinion.”  Lawyer is not otherwise involved in the matter in which Person has an attorney.

True or False?

Lawyer must not discuss the matter with Person unless Person’s attorney consents.

Question 2

Absent a written agreement between Lawyer & Client saying it will be treated otherwise, a flat fee paid in advance of any services being performed by Lawyer ____________:

• A. must be deposited into trust.
• B.  must not be deposited into trust.
• C.  violates the rules.
• D.  None of the above.

Question 3

Last month, Person met with Lawyer to discuss the possibility of forming a lawyer-client relationship.  It was their only meeting or conversation.  Last week, Person informed Lawyer that Person has decided not to retain Lawyer and will retain another attorney. You may assume that Person met with Lawyer in good faith.

Which is most accurate?

• A.  Lawyer is not bound to keep Person’s confidences.
• B.  Lawyer owes the same duty of confidentiality as would be owed to any current or former client.
• C.  The rules do not address this situation.  The rules refer only to duties owed to clients who form professional relationships with lawyers.
• D.  That consultation better have been virtual!

Question 4

For conflicts purposes, which do the rules treat differently than the others?

• A.  a former client conflict that arises when Lawyer moves from private practice to government practice.
• B.  a former client conflict that arises when Lawyer moves from government practice to practice.
• C.  a conflict that arises from a Lawyer’s personal interest that would not create a significant risk of materially limiting the representation if handled by another attorney in Lawyer’s firm.
• D.  The rules treat each the same. None is imputed to the other lawyers in Lawyer’s firm/office.

Question 5

This is my personal all-time favorite and is my only concession to 200 being anything other than something.  There’s a hint into the intro.

It’s a good thing Michael Scott isn’t a lawyer.  In an episode of The Office, Michael ran over a co-worker in the company parking lot. He was driving a company car. When asked by an HR rep if the accident happened on company property, Michael replied:

• “On company property, with company property.”

Then, citing to the Bill of Rights, Michael said “So . . .  we’re fine.”

What legal theory found in the Bill of Rights did Michael mistakenly think rendered him and the company “fine?”