Monday Morning Answers: #208

Welcme to Monday.

Friday’s questions are here.  Today’s answers follow the Honor Roll.  A special congratulations to the member of the Honor Roll who got a sign to read 9 MPH this week.  That’s moving!

Honor Roll

  • Karen Allen, Esq.
  • Matthew AndersonPratt Vreeland Kennelly & White
  • Evan BarquistMontroll Backus & Oettinger
  • Leslie Black, Govoni & Black
  • Beth DeBernardi, Administrative Law Judge, Vermont Department of Labor
  • Benjamin GouldPaul Frank & Collins
  • Mark Heyman, Esq.
  • Robert Grundstein, Esq.
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy, JB Kennedy Associates
  • Cassandra LaRae-PerezSpecial Counsel, Gravel and Shea
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Jesse Moorman, Assistant Attorney General, General Counsel & Administrative Law Unit
  • Hal Miller, First American
  • Jay Spitzen, Esq.
  • Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

Which is most accurate?  Upon the termination of a representation, a lawyer:

  • A.  must keep the original client file for 6 years.
  • B.  must keep a copy of the client file for 6 years.
  • C.  shall take steps reasonably practicable to protect the client’s interests, including surrendering any papers or property to which the client is entitled.
  • D.  All the above.

For more on file delivery and the myth of the 6-year file retention period, see last week’s Twofer: Scams & File Delivery.

Question 2

Fill in the blank.

A change to wiring instructions should put a lawyer on alert to a potential _________:

  • A.  conflict of interest.
  • B   situation in which the client is not competent to make informed decisions about the representation.
  • C.  violation of the rule that prohibits unreasonable fees.
  • D.  trust account scam.

Again, see last week’s post Twofer: Scams & File Delivery.

Question 3

I’ve often stated that there’s one rule that trumps all the others.  Here’s language from a comment to that rule.  Your mission, should you choose to accept it, is to identify the “C” of legal ethics that properly fills in the blank.

  • “This rule sets forth the special duties of lawyers as officers of the court to avoid conduct that undermines the integrity of the adjudicative process.  A lawyer acting as an advocate has an obligation to present the client’s case with persuasive force.  Performance of that duty while maintaining client confidences, however, is qualified by the advocate’s duty of ___________.”

Candor to a Tribunal.  The langague is from Comment [2] to Rule 3.3.

Question 4

Attorney contacted me with an inquiry. I replied:

  • “a comment to the rule states Other Lawyer is prohibited from communicating with any of your client’s constituents (1) who supervise, direct, or regularly consult with you on the matter; or (2) who have the authority to obligate your client with respect to the matter; or, (3) whose act or omission in connection with the matter may be imputed to your client for the purposes of civil or criminal liability.”

Given my response, Attorney most likely represents:

  • A.  someone under the age of 16.
  • B.  someone charged with a crime.
  • C.  multiple clients in the same matter.
  • D.  an organization.

That is the langague from Comment 7 to Rule 4.2.

Question 5

It’s rare that discovery disputes result in discipline. As we’ve seen recently, however, when they involve Executive Privilege, they make the news.

On July 24, 1974, the United States Supreme Court issued an order compelling the production of material that had been subpoenaed but not produced.  The underlying matter eventually resulted in 14 lawyers either being suspended or disbarred.

What is the most famous of the items that, 46 years ago today, the Court ordered to be produced in response to the subpoena?

The Nixon White House Tapes

The Watergate tapes' infamous 18.5-minute gap and Nixon's ...

Five for Friday #208

The quiz is back.

Back without an exclamation point in announcing its return, but back nonetheless.

Lately, I’ve struggled to find the motivation to blog.  I’ve not, however, lacked the motivation to run.  Since May 1, whether measured by total miles or enjoyment-per-mile, my running has gone to a new level. Minutes-per-mile? Umm, well, 2 out of 3 ain’t bad.

Anyhow, I had a running story that involves 2.08 miles. But it’s technical and boring, so I’m skipping it in favor of one that has nothing to do with the week’s number.

I often run on Old Stage Road in Williston.  About halfway between Adams Farm Stand and the shortcut back to my condo, there’s a spot where a sign flashes a car’s speed as it zips by.  You know, not a speed trap that’s staffed by a traffic cop, just the sign.

I love the sign.

Indeed, road signs often make me smile as I run. I remember a Vermont City Marathon in which I was struggling.  I came to a house that had a sign on the curb that said “Slow Down! Our kids live here!”  I looked at the sign, looked at the person standing in the front yard, and raised my eyebrows higher than I was able to lift my feet as I shuffled along.  The person got it.  She knew exactly what I meant, and we shared a wordless chuckle.  Little moments like that make a big difference when you’re struggling to make it to the finish line.

Now, back to the faux speed trap.  They’re all over Vermont.  And, with 8-year old me alive and well somewhere inside my brain, I treat them as any kid would: as I approach, I run as fast as I can, hoping to register on the sign.

It never works.

A few days ago, I found myself running on Old Stage Road, approaching the sign.  I sped up. Like Yukon Cornelius and Wily E. Coyote, I seemed again on the verge of failure.  The sign bordering on rude in its blankness.

Then, the unthinkable happened: it started blinking “38.”

Of course, I knew it wasn’t me.  It just so happened that as I passed the sign, a car triggered the attached radar gun.  Still, as the theme song to Chariots of Fire entered my head, I raised my arms like I’d won Olympic Gold. And, just like the person who “got it” when I ran past the “slow down” sign in the marathon, so too did the driver – – honking the horn, waving, and smiling with me (and for me) as they drove past.

I think that was the best part: an unknown person helping me to enjoy a moment.

You too can be that driver.  Or the person whose yard had the “slow down!” sign. Whether today, this weekend, or down the road, you will have a chance to help someone enjoy a moment.  Don’t waste the opportunity.  These days, each of us could use as many happy moments as possible.

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

Which is most accurate?  Upon the termination of a representation, a lawyer:

  • A.  must keep the original client file for 6 years.
  • B.  must keep a copy of the client file for 6 years.
  • C.  shall take steps reasonably practicable to protect the client’s interests, including surrendering any papers or property to which the client is entitled.
  • D.  All the above.

Question 2

Fill in the blank.

A change to wiring instructions should put a lawyer on alert to a potential _________:

  • A.  conflict of interest.
  • B   situation in which the client is not competent to make informed decisions about the representation.
  • C.  violation of the rule that prohibits unreasonable fees.
  • D.  trust account scam.

Question 3

I’ve often stated that there’s one rule that trumps all the others.  Here’s language from a comment to that rule.  Your mission, should you choose to accept it, is to identify the “C” of legal ethics that properly fills in the blank.

  • “This rule sets forth the special duties of lawyers as officers of the court to avoid conduct that undermines the integrity of the adjudicative process.  A lawyer acting as an advocate has an obligation to present the client’s case with persuasive force.  Performance of that duty while maintaining client confidences, however, is qualified by the advocate’s duty of ___________.”

Question 4

Attorney contacted me with an inquiry. I replied:

  • “a comment to the rule states Other Lawyer is prohibited from communicating with any of your client’s constituents (1) who supervise, direct, or regularly consult with you on the matter; or (2) who have the authority to obligate your client with respect to the matter; or, (3) whose act or omission in connection with the matter may be imputed to your client for the purposes of civil or criminal liability.”

Given my response, Attorney most likely represents:

  • A.  someone under the age of 16.
  • B.  someone charged with a crime.
  • C.  multiple clients in the same matter.
  • D.  an organization.

Question 5

It’s rare that discovery disputes result in discipline. As we’ve seen recently, however, when they involve Executive Privilege, they make the news.

On July 24, 1974, the United States Supreme Court issued an order compelling the production of material that had been subpoenaed but not produced.  The underlying matter eventually resulted in 14 lawyers either being suspended or disbarred.

What is the most famous of the items that, 46 years ago today, the Court ordered to be produced in response to the subpoena?

 

Radar speed sign - Wikipedia

 

 

Forging signatures? Bad idea.

I’m in a blogging slump.  Only two posts since June 22nd.  Perhaps writing about a lawyer who may someday end up in a Was That Wrong? column will help to break me out of my slump.

The story comes via the ABA Journal.  Click later.  For now, imagine this:

  • You’re a criminal defense lawyer.
  • In January, the court issues a Bond Order that requires your client to wear an Electric Home Monitoring (EHM) device.
  • On March 9, a modified Bond Order issues.  Your client no longer has to wear the EHM! The modified Bond Order includes signatures that purport to be yours, the prosecutor’s, and the judge’s.
  • On March 10, the court, sue sponte, holds a conference call to discuss concerns that the prosecutor has raised about the modified Bond Order.  Specifically, the prosecutor informed the court that she never agreed to modify the Bond Order and that the signature isn’t hers.
  • You reply by conceding that you signed the prosecutor’s name.

At this point, readers likely realize that things aren’t going too well for you.

Alas, you realize that things are about to get a whole lot worse.  Well, now, it’s time to share what you and I know with the readers.

Here’s language from the order that the court issued after the conference call:

  • “This Court also has concerns about what is purported to be its signature. The signature does not resemble this Court’s signature. The Court does not recall signing the Order. The date the Order was purportedly signed, March 4, 2020, the undersigned was not in the circuit and was unavailable to sign the Order.”

I think readers are starting to understand how bad things are getting for you.

  • “Defense Counsel . . . stated in the conference call that he presented the Order to the Court on Monday. The Court understood that [Defense Counsel] was referring to Monday March 2, 2020.  Out of an abundance of caution, this Court had the security tapes reviewed for Monday, March 2 and Monday, March 9, 2020.  [Defense Counsel] was not seen in court on either of those days.”

Drawing on my basketball experiences, coaches sometimes respond to a player’s mistake by saying “good idea, poor execution.” Yet, as with today’s story, there were also times when a player’s mistake was not only in the execution, but in the idea itself.  In that situation, a coach begins by asking “what were you thinking?”

Indeed.

The transcript of the conference call the final document available at this link.

Denver criminal defendants no longer must pay for ankle monitors

 

Vermont Bar Exam To Be Administered Remotely In October

The Vermont Bar Exam was originally scheduled for July 28 and 29.  Given the pandemic, the Supreme Court previously rescheduled the exam for September 9 & 10.  The goal was to hold the exam in-person.  Today, amid continuing concerns related to the pandemic, the Court announced that the Vermont bar exam will be administered remotely on October 5 & 6.  For more on the remote exam, see the update at the end of this post.

The Court’s order is part of today’s update to the Administrative Order 49, the order declaring a Judicial Emergency.  Per the order:

  • the remote exam will be created by the National Conference of Bar Examiners (NCBE).  This is not new, as the NCBE already creates the Uniform Bar Exam (UBE).
  • the exam will be shorter than usual.
  • applicants may opt out of the remote administration and either (1) receive a full refund; or (2) be registered for the February 21 administration of the Uniform Bar Exam.
  • the Board of Bar Examiners may enter into agreements regarding score portability with other jurisdictions.  This is analogous to the current practice in which scores on the Uniform Bar Exam are portable.  For example, Vermont’s “cut score” on the UBE is 270.  An applicant is eligible for admission to the Vermont bar no matter the UBE jurisdiction in which the applicant scores a 270 or better.

The pandemic has forced state Supreme Courts and bar administrators to make difficult decisions with respect to exam.  As this chart shows, the response varies by jurisdiction.  Similarly, after causing a premature end to their final semester, the pandemic continues to exact an emotional and financial toll from recent graduates whose job offers are conditioned upon passing the bar exam.

For questions specific to the bar exam, please contact Andy Strauss. Andy is Vermont’s Licensing Counsel.

Meanwhile, if you or someone you know needs assistance coping with delays associated with pandemic, please do not hesitate to reach out to me. In the meantime, here is a list of resources available to anyone who needs help with behavioral health issues.

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UPDATE: 4:06 PM – I should’ve included this in the original post.  Here is what the NCBE’s website has about the remote exam:

NCBE to Provide Additional Support for Jurisdictions During COVID-19 Crisis

NCBE will provide a limited set of questions (MBE, MEE, MPT) to jurisdictions for an emergency remote testing option for local admission during the COVID-19 crisis. The materials will be offered for a remote administration on October 5–6, after all three administrations of the bar exam/Uniform Bar Exam (UBE) have occurred, and will provide jurisdictions an emergency option should administering the in-person bar exam not be possible.

This remote testing option will not constitute the full bar exam or the UBE. Scores earned on the remotely administered test will be used for local admission decisions only, and will not qualify as UBE scores. The scores will not be eligible to be transferred as UBE or MBE scores to other jurisdictions or released to candidates via NCBE Score Services.

The emergency remote option follows steps we have previously taken to support our stakeholders in light of the COVID-19 crisis. In early April, we announced we would provide materials for two additional fall administrations of the bar exam/UBE (September 9–10 and September 30–October 1) in addition to the July 28–29 exam.

Nearly all jurisdictions are planning to hold the in-person bar exam this year on one of these scheduled administrations, while making provisions for social distancing and other safety measures. (For information about jurisdiction announcements, visit our July 2020 Bar Exam: Jurisdiction Information page.)

In providing the remote testing option, NCBE is responding proactively to the continuing uncertainty the upcoming months will bring, and the possibility that local or state health and safety restrictions will prohibit in-person testing.

“NCBE understands the enormous challenges facing recent law graduates during the COVID-19 pandemic, including the uncertainty over whether they will be able to sit for the bar exam, which is why we have taken additional steps to facilitate licensure in 2020,” said NCBE president and CEO Judith Gundersen.

“NCBE continues to strongly advocate that a full-length, standard, in-person administration of the bar exam/UBE is best for a number of reasons, including psychometric issues, exam security, and the testing environment of candidates, who may not have access to comparable testing conditions or equipment. We recognize, however, that these are extraordinary times. It is worth noting that many other high-stakes professional licensing exams, such as those for the medical, health care, engineering, and public accounting professions, are to the best of our  knowledge still being held in person or are being postponed until they can be held in person,” Gundersen concluded.

Each jurisdiction will have flexibility in deciding which of the abbreviated test materials to use. While the materials’ subject matter coverage will follow NCBE’s subject matter outlines for the three tests, less content will be covered in shorter testing sessions.

Jurisdictions that must use the remote testing option will have candidates using their own computers in their own testing environments and may choose from among the three technology vendors that already assist jurisdictions with in-person bar exam administration. Each jurisdiction (and its candidates) will deal directly with the jurisdiction’s chosen vendor regarding registration and administration, just as they do currently when laptops are used during the bar exam. NCBE’s role will be to make the test materials available to the vendor designated by each jurisdiction and establish the testing dates and start times for each set of materials.

Jurisdictions will be responsible for scoring the tests and interpreting candidate performance. NCBE will not equate the MBE portion or scale scores from the written portion of the test to the standardized MBE portion as we would do for the standard, full-length bar exam. Without further research, scores from an abbreviated version of the MBE administered by remote testing cannot be considered comparable to the standard, paper-based, full-length MBE administration, such comparability being an essential requirement for equating and scaling.

Important Updates to Business Hangouts Live Streaming Features

ABA Issues Guidance on Rule Prohibiting Harassment & Discrimination

In 2016, the ABA adopted Model Rule of Professional Conduct 8.4(g).  The rule has proven controversial, with only 7 states having followed suit. That being said, at the time, about half the states already had in place an analogous rule.

Vermont was the first to adopt the amended Model Rule. Here are links to our rule and the Reporter’s NoteMaine and New Hampshire have also adopted versions of the Model Rule.  Last month, Pennsylvania became the most recent jurisdiction to do so.

This post is not intended to delve into the controversy surrounding the Model Rule.  If you’re interested in learning more, here are representative samples of each side of the debate:

  • a short video in which UCLA’s Professor Eugene Volokh argues against the rule;
  • the Louisiana Attorney General’s opinion that a court would likely find the rule unconstitutional;
  • a post on The Federalist Society blog that reports on the Montana Legislature’s resolution declaring the rule unconstitutional;
  • an ABA Journal post that lays out various opinions on the constitutional issues involved;
  • a post in which the Dennis Rendleman of the ABA’s Center for Professional Responsibility responds to criticism of the rule;
  • a resolution from the Philadelphia Bar Association supporting the Pennsylvania rule; and,
  • an article in which NYU Professor Stephen Gillers argues in favor of the rule.

A simple internent search will lead to scores of other resources.  This chart summarizes where each jurisdiction is vis-a-vis Rule 8.4(g).

Rather, today’s post is intended to call attention to ABA Formal Opinion 493.  Issued yesterday by the ABA’s Standing Committee on Ethics & Professional Responsibility, it provides guidance on the “purpose, scope, and application” of Model Rule 8.4(g).  The ABA Journal reported the opinion.

The opinion offers a defense of the rule.  Then, it answers five hypotheticals.  My sense is that practicing lawyers will be most interested in the hypotheticals.  They’re below.  The answers?  You’ll have to go to the opinion for those!

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Hypotheticals verbatim from ABA Formal Opinion 493

(1) A religious organization challenges on First Amendment grounds a local ordinance that requires all schools to provide gender-neutral restroom and locker room facilities. Would a lawyer who accepted representation of the organization violate Rule 8.4(g)?

(2) A lawyer participating as a speaker at a CLE program on affirmative action in higher education expresses the view that rather than using a race-conscious process in admitting African-American students to highly-ranked colleges and universities, those students would be better off attending lower-ranked schools where they would be more likely to excel. Would the lawyer’s remarks violate Rule 8.4(g)?

(3) A lawyer is a member of a religious legal organization, which advocates, on religious grounds, for the ability of private employers to terminate or refuse to employ individuals based on their sexual orientation or gender identity.63 Will the lawyer’s membership in this legal organization constitute a violation of Rule 8.4(g)?

(4) A lawyer serving as an adjunct professor supervising a law student in a law school clinic made repeated comments about the student’s appearance and also made unwelcome, nonconsensual physical contact of a sexual nature with the student. Would this conduct violate Rule 8.4(g)?

(5) A partner and a senior associate in a law firm have been tasked with organizing an orientation program for newly-hired associates to familiarize them with firm policies and procedures. During a planning session, the partner remarked that: “Rule #1 should be never trust a Muslim lawyer. Rule #2 should be never represent a Muslim client. But, of course, we are not allowed to speak the truth around here.” Do the partner’s remarks violate Rule 8.4(g)?

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Again, the answers are towards the end of the new ABA Formal Opinion.

Legal Ethics