Welcome to Friday and the 238th legal ethics quiz!
I make mistakes. And today I’m here to self-report a mistake that I made a year ago.
It was October 30, 2020. The intro to that fateful Friday’s quiz included my Halloween Candy Rankings. The list is flawed. Or, in parlance associated with this blog, the list is evidence of my failure to satisfy the duty of competence.
No competent candy ranker would’ve omitted the 100 Grand Bar.
Sadly, I realized my error that very day. It has eaten at me ever since. Do not worry about candy shaming me. I deserve it.
It gets worse.
In my professional world, disciplinary sanctions are imposed against lawyers who violate the Rules of Professional Conduct. I blogged about the sanctions process here. In short, depending on the nature of the violation, hearing panels and courts arrive at a “presumptive sanction.” The ABA Standards for Imposing Lawyer Sanctions make clear that intentional misconduct warrants a more severe presumptive sanction than conduct that is merely negligent.
An argument that the 100 Grand Bar slipped my mind would be unavailing. Indeed, I specifically mentioned it as one of the “toughest omissions.”
It gets even worse.
Per the ABA Standards, depending on the aggravating and mitigating factors, the presumptive sanction can be ratcheted up or made less severe. The relevant aggravating factors are set out in Section 9.22 and include:
- substantial experience in the practice of law; and,
- multiple offenses.
I’ve been eating candy for half a century. And not only did my rankings omit the 100 Grand Bar, but they also failed to include the Baby Ruth.
I am at your mercy. I only ask that you keep in mind some mitigating factors.
Per section 9.33 of the ABA Standards, factors that may be considered in mitigation include:
- full & free disclosure of the misconduct; and,
- a timely good faith effort to rectify the consequences of the misconduct.
Today, I’m here of my own free will to disclose my incompetence and to make amends. I submit that my effort is timely. Indeed, a closer look at last year’s post reveals that I shared my “2020 Halloween Candy Rankings.” (emphasis added). What competent blogger would’ve posted updated Halloween Candy rankings between now and then? Today’s my first chance!
Therefore, my 2021 Halloween Candy Rankings:
- 5. Krackel
- 4. Peanut Butter Cup
- 3. Baby Ruth
- 2. Peanut M&M’s
- 1. 100 Grand Bar
And now it’s time to end this intro before I’m tempted to argue that my 2020 omissions weren’t violations at all. After all, another of the aggravating factors is the failure to acknowledge the wrongful nature of one’s conduct.
Happy Halloween and onto the quiz!
Rules
- 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 consider sharing the quiz with friends & colleagues
- Share on social media. Hashtag it – #fiveforfriday
Question 1
I often blog and talk about the 7 Cs of Legal Ethics.
During a CLE, I began by mentioning the phrases “informed consent” and “impliedly authorized to carry out the representation.” Next, I contrasted the section of the rule that requires action with the section that permits, but does not require, a lawyer to act. Finally, just as I began to address the situations in which the rule’s so-called “self-defense” exception applies, your Wi-Fi cut out, the Zoom feed died, and you missed my explanation of the exception.
What C was the topic of the CLE?
Question 2
Speaking of exceptions, there’s a rule that includes an exception for when a person is seeking a second opinion. The rule addresses _______:
- A. conflicts of interest.
- B. the situations in which a fee agreement must be reduced to writing.
- C. communicating with a represented person.
- D. communicating with prospective clients who a lawyer knows or reasonably should know need legal services.
Question 3
It’s National Celebrate Pro Bono Week. The pro bono rules include one that creates an exception to the rule(s) that ________:
- A. prohibits unreasonable fees.
- B. requires a lawyer to safeguard client property.
- C. govern conflicts of interest.
- D. requires a lawyer to keep a client reasonably updated as to the matter’s status.
Question 4
There’s a rule that includes an exception for “testimony that relates to the nature and value of legal services rendered in the case.” The rule’s title is ______”
- A. Duties to Former Clients.
- B. Lawyer as Witness.
- C. Fees.
- D. Candor to a Tribunal.
Question 5
Candy was the theme of Question 5 only two weeks ago! Not today. Still, I’ll keep it somewhat related to Halloween.
In 1991, a New York court issued the so-called Ghostbusters opinion. In it, the court allowed a prospective buyer to rescind a contract to buy a house due to the seller’s failure to disclose a material condition. Rejecting the seller’s “buyer beware” argument, the court stated:
- “Where, as here, the seller not only takes unfair advantage of the buyer’s ignorance but has created and perpetuated a condition about which he is unlikely to even inquire, enforcement of the contract (in whole or in part) is offensive to the court’s sense of equity. Application of the remedy of rescission, within the bounds of the narrow exception to the doctrine of caveat emptor set forth herein, is entirely appropriate to relieve the unwitting purchaser from the consequences of a most unnatural bargain.”
What did the court fault the seller for failing to disclose to the buyer?
Ethical Grounds 