Good morning. Friday’s questions are here. The answers follow today’s 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
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  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  “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.”
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).
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.
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.
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?”