Five for Friday #237

Welcome to Friday and the 237th legal ethics quiz.

In the intro to the last quiz, I invited readers to participate in this blog’s first ever moot court-style competition. I posted my favorite responses here.

Last night, as I researched today’s introduction, I thought I’d found the subject matter for this blog’s second ever moot court-style competition, one that would require participants to act as lawyers in an intellectual property/trademark infringement case.  That’s because I learned that tomorrow is Sweetest Day 2021.

Personally, it was a literal discovery.  I’d never heard of the holiday.  The Cincinnati Enquirer reports that the holiday “is celebrated on the third Saturday in October [and is] touted as a way to share romantic deeds, expressions, acts of charity and kindness.” According to Wikipedia, the first took place in 1921 after a group of candy makers “concocted” a holiday in which people gave candy to others.

Initially, my spidey sense tingled.

“Hmm, I think I’ve heard of something like this before.  Mike, wait! This is nothing but Valentine’s Day repackaged for October!”

From there sprouted the idea of another moot court competition.  One in which readers could choose to represent either Valentine’s Day or Sweetest Day in the inevitable trademark infringement suit.  Surely some readers would’ve opted to champion Valentine’s Day and crafted sterling arguments in favor of an immediate injunction banning any observation of Sweetest Day.

Then I did some more research.

Per the National Day Calendar (and other sources not linked here), yes, the day includes “candy and treat for our sweethearts.”  Nevertheless, the holiday is more than that.  It “encourages everyone to be generous even in the smallest of ways” and “reminds us that even small tokens improve the lives of those around us.”  That is, even the smallest of gestures can help those in the greatest need.  Which is exactly what I was getting in “Ask the question” when I urged us to remember that, sometimes, “are you alright?” is all that it takes to improve another’s wellness.

So, with a better understanding of the meaning of Sweetest Day, I decided to cancel the moot court competition and to dismiss the trademark suit filed by Valentine’s Day.  Because high on the profession’s list of things to avoid should be “arguing against small acts of kindness.”

In my posts and CLEs on client confidences, I often steal a line from Thomas Edison and remind lawyers that we should take advantage of every opportunity to keep quiet.  The lesson struck me as I thought about Sweetest Day.

These days, the profession could use a little Sweetest Day. Whether today, tomorrow, or whenever, each of us will have opportunities for small, kind gestures, even towards people who haven’t been too kind to us.

We should take advantage of them all.

Onto the quiz!

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.

With respect to one of the Cs, a comment indicates that the applicable rule “sets forth the special duties of lawyers as officers of the court to avoid conduct that undermines the integrity of the adjudicative process.”

Which C?

Question 2

 Which is part of a different rule than the others?

  • A.  don’t state or imply that you’re disinterested.
  • B.  the new matter is the same as or substantially related to the matter in which you represented the person.
  • C.  if the person misunderstands your role, correct the misunderstanding.
  • D.  if the person’s interests are likely to conflict with your client’s, don’t give the person any legal advice other than the advice to secure counsel.

 Question 3

 There’s a rule that prohibits lawyers from making false or misleading statements about their services.

Can truthful statements that are misleading violate the rule?

  • A.  No.  Truth is an absolute defense, no matter how misleading it might be.
  • B.  Yes, if they omit a fact that is necessary to make the statement considered as a whole not materially misleading.

Question 4

 There’s a rule that includes an exception for an “insurance company . . . licensed to do business in the Vermont.”  This week, a lawyer emailed to ask me if I thought a particular company qualified as an “insurance company” and, therefore, that the exception applied.

The rule in question deals with:

  • A.  Safekeeping Property/Trust Accounting
  • B.  Conflicts of Interest
  • C.  Communicating with a represented person
  • D.  The Unauthorized Practice of Law

Question 5

 In the intro I mentioned candy, intellectual property, and trademark infringement suits.

In late August, a California cookie company filed a trademark suit against a candy maker.  The lawsuit focuses on the shape of one the candy maker’s most famous products.  While most of us know the product as a tiny treat, the largest ever made weighed in at 30,540 pounds. Created in 2007, it was displayed in Pennsylvania to celebrate the candy maker’s 100th anniversary.

Name the candy maker and the product that is the subject of the trademark suit.

 

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