Monday Morning Answers: #241

Merry Monday!

Friday’s questions are here. The video version of today’s answers is here.  It’s about 12 minutes long and includes a bit more explanation than follows below.  Otherwise, the answers follow today’s Honor Roll.  Congrats (and thank you) to all who entered!

Honor Roll

• Karen Allen, Karen Allen Law
• Matthew Anderson, Pratt Vreeland Kennelly Martin & White
• Alberto Bernabe, Professor of Law, University of Illinois Chicago
• Penny Benelli, Dakin & Benelli
• Andrew Delaney, Martin Delaney & Ricci
• Heather Devine, Tarrant, Gillies, Shems
• Robert Grundstein
• Glenn Jarrett, Jarrett & Luitjens
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Elizabeth Kruska, Immediate Past-President, Vermont Bar Association Board of Managers
• John Leddy, McNeil, Leddy & Sheahan
• 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
• Keith Roberts, Darby Kolter & Roberts
• Jonathan Teller-Elsberg, Sheehey Furlong & Behm
• The Honorable John Valente, Vermont Superior Judge
• Jason Warfield, J.D.
• Thomas Wilkinson, Cozen O’Connor

Answers

Question 1

 I often refer to the 7 Cs of Legal Ethics.  Professor Alberto Bernabe, a regular member of the Honor Roll, uses a similar construct.  He suggests that students in his Professional Responsibility class remember the “bad grades.”  That is, the Cs, a D, and an F.

Professor Bernabe’s Cs are the same as mine.  The “F” is for “fiduciary.” 

What duty does the “D” stand for?

DILIGENCE.  V.R.Pr.C. 1.3

Question 2

 Prospective Client contacted Lawyer seeking representation in a matter in which Prospective Client’s interests are materially adverse to the interests of one of Lawyer’s former clients.  The new matter is substantially related to the matter in which Lawyer represented Former Client.  However, Lawyer does not remember anything about the representation of Former Client and no longer has access to the file.

Which is most accurate?

• A.  Because the matters are substantially related to each other, Lawyer is presumed to have received confidential information from Former Client.
• B.  Because the matters are substantially related to each other, Former Client will not be required to disclose confidences in order to protect them.
• C.  A & B.  Here’s a video in which I discuss this concept.
• D.  Whether Lawyer can represent Prospective Client necessarily turns on how long ago the representation of Former Client ended.

Question 3

 Lawyer called me with an inquiry. I listened, then replied: “I wouldn’t call without permission. I understand your point about the matter not yet being in litigation. But the rule isn’t limited to matters that are in litigation. It applies to any matter.”

What’s the topic of the rule I referenced?

COMMUNICATION WITH A REPRESENTED PERSON.  V.R.Pr.C. 4.2

Question 4

 What type of conflict is less likely to be imputed to other lawyers in the same firm as the conflicted lawyer?

• A.  a conflict between a former client & current client
• B.  a conflict between current clients
• C.  a conflict arising from a personal interest of the disqualified lawyer.  See, V.R.Pr.C. 1.10(a).
• D.  Trick question.  In VT, all conflicts are imputed to others in the same firm.

Question 5

Some people like question 5 to be about pop culture. Others don’t.  Today it’s a bit of both.

Rule 1.2(d) prohibits a lawyer from assisting or advising a client to commit a crime.  The rule draws no distinction between state & federal crimes or between crimes that the government enforces more or less vigorously than others.  As such, the rule used to cause concern for Vermont lawyers representing clients involved in a particular industry.  So much concern that, several years ago, we amended the rule. 

As amended, a new comment clarifies that a lawyer may assist and advise a client on the scope, validity, and meaning of Vermont law that governs a particular product, as long as the lawyer also advises the client as to the potential consequences of the conduct under federal law and policy.

Question:   What industry or product?

Bonus:  Name the celebrity whose famous holiday song uses the product in a rhyme with the holiday.

Double Bonus:   Name the other product that the celebrity uses to rhyme with both the first product and the holiday in a version of the song.  The second product doesn’t raise concerns about Rule 1.2(d) or assisting/advising a client to commit a crime, but it might have during prohibition.

Cannabis/Marijuana is the product.

 Adam Sandler:  The Hanukkah Song

 Gin & Tonic. (marijuanukkak, gin & tonikkah)