Monday Morning Answers #240

Attention!  New blog feature!  I recorded this video in which I go over the answers to Friday’s quiz in more detail than I do in the post.

Anyhow, good morning and welcome to the week!  While I’m a fan of a long December, musically too, I worry that the remainder will blow by before I know it. Or, worse, January will feel even longer.

Friday’s questions are here.  The answers follow today’s Honor Roll. 

Honor Roll

  • Karen Allen, Karen Allen Law
  • Barquist, Montroll Oettinger & Barquist
  • Alberto Bernabe, Professor of Law, University of Illinois Chicago
  • Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labor
  • Andrew Delaney, Martin Delaney & Ricci
  • Benjamin Gould, Paul Frank + Collins
  • Robert Grundstein
  • Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
  • Deb Kirchwey, Law Office of Deborah Kirchwey
  • Aileen Lachs, Esq.
  • Kevin Lumpkin, Sheehey, Furlong & Behm
  • Pam Loginsky, Pierce County (WA) State’s Attorney’s Office
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeffrey Messina, Messina Law
  • Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
  • Herb Ogden, Esq.
  • Dan Richardson, Burlington City Attorney
  • Jonathan Teller-Elsberg, Sheehey Furlong & Behm
  • The Honorable John Valente, Vermont Superior Judge
  • Jason Warfield, J.D.
  • Thomas Wilkinson, Cozen O’Connor
  • Zachary York, Paralegal, Sheehey Furlong & Behm


Question 1

I often blog and talk about the 7 Cs of Legal Ethics

This “C” does not appear by word in the Rules of Professional Conduct. That said, and as the Vermont Supreme Court has indicated, it’s a serious violation of the trust accounting rules.

COMMINGLING.  One reader responded “conversion.”  100% correct.  So, let it know be known that “commingling” and “conversion” share a seat on the ship that sails the 7Cs of legal ethics.

Question 2

 Fill in the blank.

 Every now and then I’ll receive an inquiry in which a lawyer asks whether there are any pitfalls in allowing someone other than the client to _____________.  Referring to the three-prongs of the applicable rule, I respond:

  • Make sure you get your client’s informed consent.
  • Don’t let the person interfere with your independent professional judgment or your attorney-client relationship.
  • Don’t disclose confidential information to the person without your client’s consent.

Given my response, it’s most likely that lawyer asked whether there are any pitfalls in allowing someone other than the client to _______________:

  • A.  Serve as a go-between between the lawyer and the client.
  • B.  Make decisions that ordinarily are reserved for the client.
  • C.  Sit in for the client at a mediation that is likely to cause the client undue stress.
  • D.  Pay the lawyer to represent the client.

 V.R.Pr.C. 1.8(f).

Question 3

 Fill in the blank.  Again.  This time without a menu of choices.

 A comment to one of the rules includes the following statements.  The same word correctly fills in each blank.

  • “[An] action is not ____________ even though the lawyer believes that the client’s position ultimately will not prevail. The action is ___________, however, if the lawyer is unable to make a good faith argument on the merits of the action.”

What’s the word?

FRIVOLOUS.  See, V.R.Pr.C. 3.1, Comment [2].

Question 4

 A version of “fill in the blank.”

During a CLE, I say something like this:

  • “Comment [3] to the rule addresses whether matters are ‘substantially related.’ It includes a sentence that makes clear that we will not require the _____________ to disclose confidential information to keep the lawyer from using it in the subsequent matter.”

I was discussing the rule that governs:

  • A.  Conflicts between current clients.
  • B.  A lawyer’s duties to former clients.
  • C.  Candor to a Tribunal.
  • D.  A rule that is not listed in choices A, B, or C.

V.R.Pr.C. 1.9(a).  The rule applies even if the lawyer does not remember anything from the prior representation.  That is, if the new matter is substantially related to the old, the former client will not be put to the Hobson’s Choice of disclosing confidences to protect them.

Question 5

 In the introduction, I alluded to stress that can come with the holiday season. 

Last month, a judge in Georgia made national news after tweeting a mock order banning a popular holiday item from the judge’s county. I don’t know whether the attention caused the judge any stress.

Anyhow, the mock order referred to the stress and anxiety that can come to parents who forget to move the item, as well as to children who touch the item and thereby deprive it of its holiday magic.

Name the item.


 Among others, the ABA Journal, the Atlanta Journal Constitution, and Above The Law reported the story.  The mock order is here