Monday Morning Answers #210

I hope everyone made the most of the long weekend.  Friday’s questions are here.  The answers follow today’s Honor Roll.

Authentic wins the Kentucky Derby - CNN
I picked wrong again.

Honor Roll

  • Matthew AndersonPratt Vreeland Kennelly & White
  • Evan BarquistMontroll Backus & Oettinger
  • Alberto Bernabe, Professor, John Marshall Law School
  • Beth DeBernardi, Administrative Law Judge, VT Dept. of Labor
  • Erin GilmoreRyan Smith & Carbine
  • Robert Grundstein, Esq.
  • Jeanne Kennedy,  JB Kennedy Associates, Blogger’s Mom
  • John LeddyMcNeil Leddy & Sheahan
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Hal Miller, First American
  • Jim Runcie, Ouimette & Runcie
  • Jay Spitzen, Esq.
  • Jonathan Teller-Elsberg, Hershenson. Carter, Scott & McGee
  • Thomas Wilkinson, Jr., Cozen O’Connor
  • Zachary York, Child Support Specialist II, Office of Child Support 

Answers

Question 1

Can a lawyer accept compensation from someone other than the client?

  • A.  Yes, but only in insurance defense matters.
  • B.   Yes, but only if the client is indigent.
  • C.   Yes, but the rule permitting it also discourages it.
  • D.   Yes, if the client gives informed consent, the payor doesn’t interfere with the lawyer-client relationship, and information relating to the representation of the client is not disclosed to the payor except as authorized by the rule on client confidences.  V.R.Pr.C. 1.8(f).

Question 2

Consider the following:

  • must be in a writing that is signed by the client.
  • cannot be used for representing a defendant in a criminal case.
  • cannot be based on securing a divorce.
  •  

Here, we’re talking about:

  • A.   Contingent Fees.  V.R.Pr.C. 1.5(c).
  • B.   Flat Fees
  • C.   An agreement to limit the scope of a representation
  • D.   All the Above

Question 3

A lawyer called me with an inquiry. I listened, then responded “the first question is whether the new matter is the same as or substantially related to the old matter.”

Given my response, the lawyer called to discuss the rule on:

  • A.  file retention
  • B.  fees/trust account management
  • C.  communication with a represented person.
  • D.  a potential conflict of interestV.R.Pr.C. 1.9(a).

Question 4

Here’s a sentence that is in the comment to one of the rules on candor.  Your task is to fill in the blank.

“_________________   partially true but misleading statements or omissions that are the equivalent of affirmative false statements.”

  • A.    A lawyer does not violate this rule by making . . .
  • B.    Misrepresentations can also occur byV.R.Pr.C. 4.1, Comment [1].
  • C.    Negotiations necessarily include . . .
  • D.    According to my dad, Lawyers excel at making . . .

Question 5

The things we do for our clients!!

Sydney Carton was a brilliant lawyer who struggled with alcohol & depression.  His most famous client was Darnay.

While not explicitly clear from the historical record, I’m pretty sure that Darnay filed a disciplinary complaint against Carton.   In it, he alleged that Carton failed to provide him with competent & diligent representation in a criminal trial that resulted in a death sentence for Darnay.

The complaint became moot when Carton, who bore an uncanny resemblance to his client, switched places with Darnay just before the execution.  Carton’s final words before the guillotine fell:

  • “It is a far, far better thing that I do, than I have ever done; it is a far, far better rest that I go to than I have ever known.”

Name the book.

A TALE OF TWO CITIES.

Five for Friday #210

The Friday before Labor Day always affects me.

In the rhythm of my life, there’s no other weekend that I want to last longer than this one.  Today still feels like summer, Tuesday morning won’t.  By then, we’ll have arrived at the crescendo to which we’ve been inexorably marching since the first August night we noticed that it was darker a bit earlier than it had been the night before.

Today, the feeling isn’t the same. Over coffee, I pondered “why?” Initially, I settled on “because COVID Summer sucked and there’s no reason to feel bad about it ending.”

Then I realized something: I bear my fair share of the blame.

Did COVID impact the summer?  Yes.  But I let the pandemic take more of my summer than it otherwise would’ve. Basically, I failed at the one thing I can always control: my reaction to things that I can’t.

My brother didn’t fail.   Instead, he bought a pop-up camper.  Since mid-July, he’s spent most weekends socially distanced at campgrounds around New England – fishing, grilling, having drinks by fires.  You know, living.

I’m going to get back to doing the same.  Being thankful for what’s available instead of ruing what isn’t.  I’m starting this weekend by joining him at a campground at Lake Dunmore.  For me, this year, Labor Day weekend marks a new start, not a depressing ending.  I’ve heard that many of you have had summers like mine.  Maybe we can all re-start together.

Oh! And here’s a segue: what wasn’t available in May because of the pandemic is available tomorrow, The Kentucky Derby! Elizabeth Kruska is the incoming president of the Vermont Bar Association.  Liz is also a horse racing aficionado and, in 2018, was kind enough to let me interview her for the Friday post on the day before the Derby.  The interview is here.  Note: Liz picked the winner!  This year, she likes Tiz The Law.

If you’re into wagering, take Liz’s advice over mine.  The horse that I picked to win in that 2018 post came in 20th

Out of 20. 

Still, undeterred, here are my picks for tomorrow.  I like an upset:

  • Ny Traffic
  • Tiz The Law
  • Honor A.P.

Which, of course, means you should go with:

  • Tiz The Law
  • Max Player
  • Authentic

Enjoy the weekend!

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

Can a lawyer accept compensation from someone other than the client?

  • A.  Yes, but only in insurance defense matters.
  • B.   Yes, but only if the client is indigent.
  • C.   Yes, but the rule permitting it also discourages it.
  • D.   Yes, if the client gives informed consent, the payor doesn’t interfere with the lawyer-client relationship, and information relating to the representation of the client is not disclosed to the payor except as authorized by the rule on client confidences.

Question 2

Consider the following:

  • must be in a writing that is signed by the client.
  • cannot be used for representing a defendant in a criminal case.
  • cannot be based on securing a divorce.

Here, we’re talking about:

  • A.   Contingent Fees
  • B.   Flat Fees
  • C.   An agreement to limit the scope of a representation
  • D.   All the Above

Question 3

A lawyer called me with an inquiry. I listened, then responded “the first question is whether the new matter is the same as or substantially related to the old matter.”

Given my response, the lawyer called to discuss the rule on:

  • A.  file retention
  • B.  fees/trust account management
  • C.  communication with a represented person.
  • D.  a potential conflict of interest.

Question 4

Here’s a sentence that is in the comment to one of the rules on candor.  Your task is to fill in the blank.

“_________________   partially true but misleading statements or omissions that are the equivalent of affirmative false statements.”

  • A.    A lawyer does not violate this rule by making . . .
  • B.    Misrepresentations can also occur by . . ..
  • C.    Negotiations necessarily include . . .
  • D.    According to my dad, Lawyers excel at making . . .

Question 5

The things we do for our clients!!

Sydney Carton was a brilliant lawyer who struggled with alcohol & depression.  His most famous client was Darnay.

While not explicitly clear from the historical record, I’m pretty sure that Darnay filed a disciplinary complaint against Carton.   In it, he alleged that Carton failed to provide him with competent & diligent representation in a criminal trial that resulted in a death sentence for Darnay.

The complaint became moot when Carton, who bore an uncanny resemblance to his client, switched places with Darnay just before the execution.  Carton’s final words before the guillotine fell:

  • “It is a far, far better thing that I do, than I have ever done; it is a far, far better rest that I go to than I have ever known.”

Name the book.

Legal Ethics

Updates on Leaving a Firm, Tech Competence, and Regulatory Reform.

Today’s post updates/revisits topics I’ve previously discussed:

  • duties to clients when a lawyer leaves a firm.
  • Tech competence: it’s been 16 years (!) since Zubulake.
  • Arizona adopts significant regulatory reform.

Duties to Clients when a Lawyer Leaves a Firm

In September, I posted Leaving A Law Firm: Breaking Up Is Hard To Do.  The post highlights the duties that a departing lawyer and firm owe to clients. It’s based (mostly) on a formal advisory opinion that the ABA issued in 1999.

Then, in December, I posted this update after the ABA Standing Committee On Ethics And Professional Responsibility issued Formal Opinion 489: Obligations Related to Notice When Lawyers Change Firms. 

Update: Last month, the Ohio Board of Professional Conduct issued Formal Opinion 2020-06: Lawyer Departing a Law Firm.  The opinion tracks the most recent ABA opinion.  Summary:

  1. When a lawyer with “principal responsibility” for a client matter departs a firm, the lawyer is required to communicate the impending departure.
  2. Preferably, notice should come from both the firm and the departing lawyer.
  3. The departing lawyer should not notify clients of the impending departure before notifying the firm.
  4. Neither the departing lawyer nor the firm should state or imply that the client is the firm’s or the lawyer’s or take any action that interferes with the client’s right to choose counsel (including a new firm altogether).  Client choice remains paramount!
  5. Given the prior professional relationship, both the departing lawyer and firm may indicate a willingness to continue to represent the client.
  6. If no remaining lawyers can provide competent representation to the client, or if a conflict at the new firm prohibits the client from following the departing lawyer, the firm and lawyer must work to assist the client to find new counsel.

Thank you Professor Bernabe for the tip.

Tech Competence: it’s been 16 years (!) since Zubulake

The blog was founded on the slogan “Competence Includes Tech Competence.”  In January, and following a CLE in which I was fortunate to present with a group of highly competent litigators, I posted Competence & E-Discovery. I think it’s an okay refresher.

Last week, I fell down a rabbit hole of old articles on legal ethics and found an ABA Journal post from 2014: Looking back on Zubulake, 10 years later.  To me, it’s an interesting and informative review of the landmark decision, a decision that, really, thrust “tech competence” into the parlance.

Arizona Adopts Regulatory Reform

Last week, I blogged about the Utah Supreme Court’s decision to adopt significant changes to the Rules of Professional Conduct and the manner in which the provision of legal services is regulated. In short, acknowledging that the rules can serve as a barrier to accessing affordable legal services, the Utah Court issued Standing Order 15 which:

  • allows lawyers to share fees with non-lawyers;
  • allows lawyers to practice in entities that are owned or managed by non-lawyers; and,
  • repeals the rule that prohibits sharing fees with lawyers in other firms.

Update: The day after my post, the Arizona Supreme Court adopted similar reform  Per this press release, the “goal is to improve access to justice and to encourage innovation in the delivery of legal services. The work of the task force adopted by the Court will make it possible for more people to access affordable legal services and for more individuals and families to get legal advice and help. These new rules will promote business innovation in providing legal services at affordable prices.”  The changes:

  • create a process to license paraprofessionals who will be authorized to provide limited legal services in certain types of cases, including going to court with clients;
  • repeal the rule that prohibits fee sharing with a lawyer in another firm; and,
  • repeal the rule that prohibits non-lawyers from having ownership interests in law firms.

Legal Ethics

Wellness Wednesday: A Stunning Opinion.

Over the past few years, I’ve argued that we must do whatever it takes to destigmatize behavioral health issues. We must encourage people to seek needed help. We must ensure that doing so will not cost them their law licenses.

Last Friday, a federal judge issued a decision in a case involving a challenge to questions that the Kentucky Bar asks of applicants about their behavioral health.  The opinion is here.  The ABA Journal and Volokh Conspiracy reported it.

I don’t know that I’ve ever read a more scathing opinion.  It makes my point, albeit in a manner more forcefully than I have ever argued.  I imagine many will criticize the tone and analysis, but there’s no denying the message: no lawyer or law student should have to choose between help and licensure.

I suggest reading it.  For an appetizer, the final paragraphs:

“Law school is hard. The stress, rigor, and competition can lead to depression, anxiety, and substance abuse. Many students who start school healthy are far from it by the time they graduate. Some kill themselves.

Aspiring lawyers should seek the health care they need. But if Kentucky continues to punish people who get help, many won’t. And one day, a law student will die after choosing self-help over medical care because he worried a Character and Fitness Committee would use that medical treatment against him—as Kentucky’s did against Jane Doe.

It is not a matter of if, but when.”

wellness

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