Monday Answers: #244

Happy February Eve!

From the responses to Friday’s post, I’m comfortable concluding that not many  readers will miss January.  Shout out to the firm that celebrated with Tropical Friday!

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

Honor Roll

  • Karen Allen, Karen Allen Law
  • Evan Barquist, Montroll Oettinger & Barquist
  • Penny Benelli, Dakin & Benelli
  • Amy Butler, Law Office of Amy Butler
  • Andrew Delaney, Martin Delaney & Ricci
  • Bob Grundstein
  • Glenn Jarrett, Jarrett & Luitjens
  • Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
  • John LeddyMcNeil, 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
  • Herb Ogden
  • Keith Roberts, Darby Kolter & Roberts
  • Jonathan Teller-Elsberg, Sheehey Furlong & Behm
  • The Honorable John Valente, Vermont Superior Judge
  • Thomas Wilkinson, Jr., Cozen & O’Connor
  • Jason Warfield, J.D.
  • Jack Welch, Esq.

answers

Question 1

Michael contacts Attorney for representation.  Michael’s matter is substantially related to a matter in which Attorney formerly represented Patrick.

By rule, which is most relevant to Attorney’s consideration of whether to represent Michael?

  • A.  whether Michael’s interests are materially adverse to Patrick’s.  See, V.R.Pr.C. 1.9(a).
  • B..whether Attorney remembers anything about Patrick’s matter.
  • C..whether Patrick’s matter concluded more than 7 years ago.
  • D..the nature of Michael’s matter: litigation or transactional.

 Question 2

 Here’s the first clause of V.R.Pr.C. 4.4(a):

“In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person . . .”

I’ve long argued that as the presence of one of the 7C of Legal Ethics wanes, the well-being of the profession deteriorates.  Which one?  That is, which of the 7Cs, when taken to the opposite extreme, crosses a line and violates the first clause in Rule 4.4(a)?

CIVILITY   (If scores mattered, I’d accept compassion, caring, courtesy . . . etc.)

A reader asked for a reminder.  The 7 Cs are:

  • 5 that are rules:  Competence, Communication, Confidentiality, Conflicts, Candor.
  • 2 others:  Commingling, Civility

Question 3

Math!

X = the number of annual pro bono hours suggested by the rule.

Y = the number of years that a rule requires lawyers to maintain trust account records following the termination of the representation.

What is X * Y?

  • A.  420
  • B.  360
  • C.  350
  • D.  300

 X = 50.  V.R.Pr.C. 6.1

Y = 6.  V.R.Pr.C. 1.15(a)(1).

Question 4

Lawyer called me with an inquiry.  My response included “It seems like there are grounds to do so.  But if you do, make sure to avoid noisy ______________.”

Given my answer, it’s most likely that Lawyer called to discuss:

  • A.  withdrawing from representing a client.  See; Stop Making Noise
  • B.  reporting opposing counsel to disciplinary counsel.
  • C.  a trust account scam
  • D.  throwing a Super Bowl party.

Question 5

Earlier this week I posted Espionage, Bribery, and Reinstatement to the Practice of Law. It refers to the story of a lawyer who, last month, sought reinstatement to the D.C. Bar.  The lawyer was disbarred in the 90s after being convicted of espionage.

In 1950, and in a criminal trial that captured the nation’s attention, a lawyer was charged with perjury. The charge was based on an allegation that the lawyer had lied to the House Committee on Un-American Activities by stating that he had not been a communist spy in the 1930s.  Because the statute of limitations had run, the lawyer was not charged with espionage

On one side of the trial, the government’s evidence included the so-called “Pumpkin Papers,” papers that an admitted former spy, who’d hidden them in a pumpkin for years, testified proved that he and the lawyer had committed espionage for the Soviets.

On the other, two sitting justices of the United States Supreme Court testified as character witnesses for the lawyer.

The lawyer was convicted.  As a result, the lawyer was disbarred in Massachusetts.  Then, in 1975, the Supreme Judicial Court of Massachusetts reinstated the lawyer, making him the first Massachusetts lawyer ever to be reinstated after having been disbarred.

Name the lawyer.  ALGER HISS

Bonus: name the member of the House Committee on Un-American Activities who, years later, was disbarred himself.   RICHARD NIXON

 The Alger Hiss trial fascinates me.  History has a good primer here.

Alger_Hiss_1950-1-e1579553354483

Five for Friday #244

Welcome to the 244th #fiveforfriday legal ethics quiz.

My friends, today is a day to celebrate.  We made it to the end of January!

Trust me, I’m well-aware that January is not the only month that has 31 days.  I also understand that each day of each month is 24 hours long and, therefore, that no 31-day month is longer than any other.

But, to me, January is the longest month.

It’d be long any year.  The cold, the dark, the dissipation of holiday good will.

Even longer this year, right? And I’m not just talking about Omicron.

I’m talking about FIVE Mondays.  We’d be better off extending December to 35 days than allowing January 5 Mondays.

Aha, I can hear some of you now: “Mike, it makes more sense to extend February. It only has 28.”

Wrong!  I love February!  And I love it exactly as it is.

What’s not to love about February?

The sun is warmer, out more often, and still up after 5.  Running conditions are great: far better than January’s ice and March’s puddles.  There’s Groundhog Day, Valentine’s Day, the Super Bowl, and the First Brother’s birthday.  Plus, the whole “I only have 28 days, except when I have 29” thing is awesome.  Like the friend who is happier, quirkier, and funnier than the others in your friend group., February is a breath of fresh air who, after 31 days of the sad sack January friend, is gone before you know it.

Not to mention, do you know how out of whack people would be if we had an actual February 30th?  Talk about a disturbance in the force.  I assume it would cause the exact chaos that Y2K didn’t.

So, no, we will not extend February.

Instead, we’ll celebrate having made it through January.  And, befitting of any celebration, a toast:

Here’s to February! May it include days that the temperature gets “2” 44.

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.  Hashtags #LegalEthics and #fiveforfriday

Question 1

Michael contacts Attorney for representation.  Michael’s matter is substantially related to a matter in which Attorney formerly represented Patrick.

By rule, which is most relevant to Attorney’s consideration of whether to represent Michael?

  • A.  whether Michael’s interests are materially adverse to Patrick’s.
  • B.  whether Attorney remembers anything about Patrick’s matter.
  • C.  whether Patrick’s matter concluded more than 7 years ago.
  • D.  the nature of Michael’s matter: litigation or transactional.

 Question 2

Here’s the first clause of V.R.Pr.C. 4.4(a):

“In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person . . .”

I’ve long argued that as the presence of one of the 7C of Legal Ethics wanes, the well-being of the profession deteriorates.  Which one?  That is, which of the 7Cs, when taken to the opposite extreme, crosses a line and violates the first clause in Rule 4.4(a)?

Question 3

Math!

X = the number of annual pro bono hours suggested by the rule.

Y = the number of years that a rule requires lawyers to maintain trust account records following the termination of the representation.

What is X * Y?

  • A.  420
  • B.  360
  • C.  350
  • D.  300

Question 4

Lawyer called me with an inquiry.  My response included “It seems like there are grounds to do so.  But if you do, make sure to avoid noisy ______________.”

Given my answer, it’s most likely that Lawyer called to discuss:

  • A.  withdrawing from representing a client.
  • B.  reporting opposing counsel to disciplinary counsel.
  • C.  a trust account scam
  • D. throwing a Super Bowl party.

Question 5

Earlier this week I posted Espionage, Bribery, and Reinstatement to the Practice of Law. It refers to the story of a lawyer who, last month, sought reinstatement to the D.C. Bar.  The lawyer was disbarred in the 90s after being convicted of espionage.

In 1950, and in a criminal trial that captured the nation’s attention, a lawyer was charged with perjury. The charge was based on an allegation that the lawyer had lied to the House Committee on Un-American Activities by stating that he had not been a communist spy in the 1930s.  Because the statute of limitations had run, the lawyer was not charged with espionage

On one side of the trial, the government’s evidence included the so-called “Pumpkin Papers,” papers that an admitted former spy, who’d hidden them in a pumpkin for years, testified proved that he and the lawyer had committed espionage for the Soviets.

On the other, two sitting justices of the United States Supreme Court testified as character witnesses for the lawyer.

The lawyer was convicted.  As a result, the lawyer was disbarred in Massachusetts.  Then, in 1975, the Supreme Judicial Court of Massachusetts reinstated the lawyer, making him the first Massachusetts lawyer ever to be reinstated after having been disbarred.

Name the lawyer.

Bonus: name the member of the House Committee on Un-American Activities who, years later, was disbarred himself.

 

Illinois board recommends 3-year suspension for lawyer who sent abusive and harassing emails.

Last week, a reader sent me this Report and Recommendation in which a hearing board of the Illinois Attorney Registration Disciplinary Commission recommended that a lawyer be suspended from practicing for 3 years.  The lawyer had been charged with directing “numerous insulting and threatening communications towards other attorneys.”

legal ethics

I’m blogging about the report for two reasons.

  1. To reiterate my message that there is a line that, once crossed, incivility morphs to a violation of the Rules of Professional Conduct.
  2. To set up a future blog in which I will comment on aspects of the board’s legal analysis that interest me and that lend the Report and Recommendation far more than just shock value.

Yes, to me, the facts of the Illinois case are shocking.  I won’t do them justice and urge you to read them for yourselves. Among other things, the lawyer sent emails in which the lawyer:

  • threatened other lawyers with baseless civil, criminal, and disciplinary charges, including, with one, a threat to “flay you on a public pillory for all to see so as to discourage scum like yourself” if the other lawyer did not “resign and plea to the FBI.”
  • referred to other lawyers as “scum”, members of “scum bag firms,” “scammers”, “crooks,” “active criminal,” “counsel/perp,” and “co-perp.”
  • addressed other lawyers by altered versions of their names. For instance, referring to an Attorney Schmeltz as “Schmaltz” and “Schmuchz” and referring to an Attorney Sanfelippo as “Sanscamfelippo” and “Sanliarippo.”

Believe it or not, I could go on and on.

Most readers know my feelings on what I perceive to be a rise in incivility among lawyers. I don’t like it and I believe that it negatively affects attorney well-being. But I’ve struggled to define whether and when it’s appropriate for the Professional Responsibility Program to get involved.  More specifically, while I hope that lawyers will take heed of the resolution Don’t be a Jerk, what rule does extreme incivility violate?

The Illinois case has the answer: Rule 4.4(a).

Vermont’s version of the rule is entitled “RESPECT FOR RIGHTS OF THIRD PERSONS.”  Paragraph (a) states:

  • “In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.”

The Illinois hearing board concluded that the lawyer violated the rule by using numerous opportunities to communicate professionally with others “as an excuse to bombard [other lawyers] with insults and threats.”  The board also concluded that the mere fact that the emails were sent in connection with a pending matter “does not mean that they had a valid purpose.”  In short, the Report and Recommendation is clear: there is a line where, once crossed, incivility becomes unethical.

In Vermont, it’s the conduct that falls just short of the line that flummoxes me. I’ve wondered whether the Bar Assistance Program’s non-disciplinary dispute process is an appropriate forum to address a lawyer who repeatedly approaches the line – perhaps keeping the lawyer from continuing down the path that the Illinois lawyer followed.

I know that some of you think that I’m espousing a sort of speech code.  I’m not.  I’ve not once argued that the Rules of Professional Conduct should be applied to prohibit legitimate advocacy.  Nor have I ever argued that the practice of law is nothing but rainbows and unicorns with nary a moment in which even a raised voice is appropriate.

What I’ve argued is this.

  1. The Rules of Professional Conduct are the floor. There’s no reason that we can’t aspire for better. That’s the point I tried to make in Don’t be a Jerk.
  2. Rule 4.4(a) has been on the books since 1999 and it has always prohibited conduct that has no substantial purpose other than to embarrass, delay or burden a third person. Vitriolic threats, harassing conduct, and abusive name-calling violate the rule.

Vermont lawyers continue to share that abusive conduct from opposing counsel affects their health to the extent that they are considering whether to leave the profession.

As such, I will continue to share posts like this one.

Espionage, Bribery, and Reinstatement to the Practice of Law – Part 1

Every now and then I try to blog about aspects of the disciplinary process that aren’t as commonly understood as others. Today, a pair of recent stories spur me to highlight on one such aspect: the process by which a lawyer seeks reinstatement following suspension or disbarment.

The first involves a lawyer who was disbarred after being convicted of espionage. Last month, a committee of the D.C. Bar’s Professional Responsibility Board held a hearing on the lawyer’s petition for reinstatement.  Among others, the ABA Journal, Reuters, and the Legal Profession Blog, covered the hearing.

Then, two days ago, the Oklahoma Supreme Court reinstated a lawyer who had resigned his law license following a criminal conviction for bribery.  In a post that included a reference to my current binge – Ozark – the Legal Profession Blog reported the decision here.  The Stillwater News Press and KOSU also have coverage.

Surprised to learn that disbarment isn’t permanent?  Don’t worry, you’re not alone.  Yet, in most states, Vermont included, it isn’t.

And that gets us to the reinstatement process.

In Vermont, reinstatement is governed by Rule 26 of Supreme Court Administrative Order 9.  Per the rule, a lawyer who is disbarred may apply for reinstatement five years after the effective date of the disbarment.  Similarly, a lawyer who is suspended for 6 months or longer may apply for reinstatement when within 3 months of the suspension’s termination.[i]

Once a lawyer petitions for reinstatement, the matter is referred to a hearing panel for what is, essentially, the reverse of a disciplinary prosecution.  By rule,

  • “the respondent-attorney shall have the burden of demonstrating by clear and convincing evidence that he or she has the moral qualifications, competency, and learning required for admission to practice law in the state, and the resumption of the practice of law will be neither detrimental to the integrity and standing of the bar or the administration of justice nor subversive of the public interest and that the respondent-attorney has been rehabilitated.”

So, how does a lawyer meet their burden?  Well, I participated in a handful of reinstatement hearings when I was the disciplinary prosecutor. In my experience, Vermont’s reinstatement hearings have been similar to those described in the stories above.

Most start with the lawyer apologizing and expressing remorse.  For instance, according to the ABA Journal, the lawyer who was disbarred after having been convicted of espionage gave the following testimony during the reinstatement hearing:

  • “My contrition is real. My shame is real. I hurt my country. I hurt my profession. I hurt the bar I was a member of and I would like once again to apologize.”

Next, lawyers seeking reinstatement typically provide evidence of having taken sufficient CLE to demonstrate that they’re current on the law.  Indeed, in its opinion reinstating the lawyer who was convicted of bribery, the Oklahoma court noted that, since 2016, the lawyer had completed 150 hours of CLE, including 13.5 in ethics.[ii]

Finally, reinstatement hearings often include character witnesses testifying in support of the lawyer who is seeking to return. Their testimony usually focuses on the lawyer’s community involvement and potential to contribute to the legal profession if allowed to resume practicing.  The stories linked above include examples of each.

In theory, reinstatement hearings are adversarial.  Vermont’s reinstatement rule states that “in all proceedings upon a motion for reinstatement, disciplinary counsel shall conduct discovery, cross-examination, and the submission of evidence, if any, in response to the motion.” That said, it was not uncommon for me not to take a position on reinstatement and to leave the lawyer to their proof.

Once the evidence is presented, it’s up to the hearing panel to decide whether the lawyer has met their burden.  Then, Vermont’s rule allows either disciplinary counsel or the lawyer to appeal the panel’s decision to the Supreme Court. Like any disciplinary case, even if no appeal is taken, the Court can order review on its own motion.  Absent an appeal or court-ordered review, the panel’s decision becomes final after 30 days.

So, that’s how the process works.

I have additional thoughts on reinstatement. Specifically, thoughts on the tension between “believing in second chances” and “protecting clients, courts, and the integrity of the profession.” Alas, this post is too long already, so I’ll share those thoughts in a soon-to-come Part II.

Stay tuned.

legal ethics

[i] A lawyer who is suspended for fewer than 6 months may resume practicing immediately upon the expiration of the suspension without having to petition for reinstatement.

[ii] I’ll circle back to this in Part II.

Wellness Wednesday: Aiming for Well-Being

Whether blogging or presenting on wellness, I’ve frequently mentioned Jeena Cho.  I’m a big fan of Jeena’s thoughts and work on the well-being of the legal profession.

In 2017, the ABA Journal ran Jeena’s post Talking about the elephant in the room – social anxietyThe closing sentence has always resonated with me.  It strikes me as perfectly capturing the idea that well-being is an aspect of competence.  Jeena wrote:

 “Finally, remember: ‘Secure your own oxygen mask before assisting others.’”

 Of course, therein lies the challenge, right? How do we help ourselves?  More specifically, how do we align and balance our personal lives & values with our work lives & values?  It’s a question I addressed in this video during 2020’s Well-Being Week in Law, and again here during the same week last year.  Jeena has addressed the question too.

Last summer, the ABA Journal posted Jeena’s piece Are you living your values?  Use the ‘Bull’s Eye” exercise to check these 4 areas of your life.  Check it out.  The exercise Jeena shares a great tool to help to clarify values and to enhance well-being. And, as you read it, take note of the final paragraph.

When discussing wellness and well-being with legal professionals, it’s common for someone to tell me something like “I stink at this.”

Not true.

As Jeena writes:

  • “My advice is to practice being gentle with yourself. Most of us are overtaxed, juggling more than what can possibly be accomplished in a day, and working under intense pressure. It’s also possible that you may consciously choose to focus more of your time and energy in one domain. This exercise is a tool to increase your awareness so that you can actively pay attention to the areas of your life that are in balance as well as areas that have been neglected. If there are areas that you would like to prioritize, start by setting some achievable goals. This isn’t a test to see how successful you are at life but rather a tool you can use on a regular basis to pause, to reassess and make course adjustments as you go. Ultimately, it’s a tool for increasing self-awareness and learning to be a better person.”

Great advice!  Thank you, Jeena.

Wellness

Previous Wellness Wednesday Posts

Monday Morning Answers #243

Welcome to Monday! Friday’s questions are here.  The answers follow today’s Honor Roll.  Before I get to the answers, a few comments.

First, many thinks to all who weighed-in on the date beyond which it’s no longer appropriate to wish “Happy New Year” to someone you’ve yet to encounter in the calendar year.  Your responses are fodder for a stand-alone column that I hope to post tomorrow!

Also, on Friday, I suggested that today’s answers would be posted via video or podcast, with The First Brother appearing as a guest to offer the non-lawyer perspective.  Well, I failed to check with him prior to making that suggestion and as it turns out, he had other plans this weekend.

With that, I’m off to shovel.  Again.

Honor Roll

  • Evan Barquist, Montroll Oettinger & Barquist
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor of Law, University of Illinois Chicago
  • Andrew Delaney, Martin Delaney & Ricci
  • Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Bonneau Kennedy, Mother of the Blogger
  • Nicole KilloranProfessor, Vermont Law School
  • Elizabeth Kruska, Immediate Past-President, Vermont Bar Association Board of Managers
  • Cassandra Larae-Perez, Gravel & Shea 
  • John LeddyMcNeil, Leddy & Sheahan 
  • Pam Loginsky, Washington State Association of Prosecutors 
  • 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
  • Keith Roberts, Darby Kolter & Roberts 
  • Jonathan Teller-Elsberg, Sheehey Furlong & Behm 
  • Rachel Trow, Legal Assistant, Shoup Evers & Green
  • The Honorable John Valente, Vermont Superior Judge 
  • Jason Warfield, J.D. 

Answers

Question 1

Imagine a CLE at which I address the distinction between “public record” and “generally known.”

Which 2 of the 7 Cs of Legal Ethics am I most likely to mention?

  • A.  Conflicts & Communication.
  • B.  Conflicts & Confidentiality.
  • C.  Confidentiality & Communication.
  • D.  Confidentiality & Candor.

V.R.Pr.C. 1.9 sets out a lawyer’s duties to former clients.  Rule 1.9(c)(1) prohibits a lawyer from using confidential information relating to the representation of a former client “to the disadvantage of the former client.”  One exception is unless “the information has become generally known.”  The law is clear that information that is “public record” is not necessarily “generally known.” 

 Meanwhile, Rule 1.7(a)(2) prohibits a lawyer from representing a client if there is a significant risk that the representation will be materially limited by the lawyer’s duties to, among others, a former client.  Thus, a lawyer has a conflict whenever there is a significant risk that the duty imposed by Rule 1.9(c)(1) will materially limit the representation of another client.   

 As such, when discussing the distinction between “public record” and “generally known,” I’m most likely to refer to conflicts and confidentiality.

Question 2

Office employs Paralegal.  In a new matter, Paralegal has a conflict that would prohibit Paralegal from accepting the representation if Paralegal were a lawyer.  Which is most accurate?

  • A.  Paralegal’s conflict is imputed to all lawyers in Office and Office must decline the representation.
  • B.  Paralegal’s conflict is imputed, but only to any lawyer at Office who regularly supervises Paralegal.
  • C.  A comment to one of the rules indicates that while Paralegal’s conflict is not imputed to any lawyer at Office, Paralegal should be screened from involvement in the new matter.  See, V.R.Pr.C. 1.10, Comment [4].
  • D.  Fake question. In Vermont, conflicts are not imputed from one lawyer to others in the same office, and they certainly aren’t imputed from non-lawyers to lawyers.

 Question 3

 Lawyer referred Client to Attorney.  Lawyer and Attorney do not work in the same firm.  Can Attorney share part of the fee with Lawyer?

  • A. No.
  • B. Yes, if the fee division is in proportion to the work done by each, or, each assumes joint responsibility for the representation.
  • C. Yes, if Client agrees, the fee sharing agreement is confirmed in writing, and the total fee is reasonable.
  • D.  B & C.  See, V.R.Pr.C. 1.5(e).  See also, Referral Fee? Think Thrice.

Question 4

 Client contacts Lawyer. Client explains that they are represented by Attorney in a matter.  Client wants a second opinion.   Lawyer is not otherwise involved in the matter.

True or False?

Vermont’s rule prohibits Lawyer from communicating with Client about the matter without Attorney’s consent.

False.  See, V.R.Pr.C. 4.2, Comment [4], and Reporter’s Notes – 2009 Amendment.

Question 5

A famous jurist was in the news this week.  The jurist made headlines for donating $5 million to her law school to fund scholarships – full tuition and books – for 10 women.  In addition, upon completing their first year of law school, each scholarship recipient will receive an offer of a summer fellowship with the jurist.

The jurist’s granddaughter, Sarah Rose, is currently a 3L at the same law school.  Sarah also works as a law clerk for her grandmother on their latest streaming venture.

Name the jurist.   Bonus: name the law school.

Judith Sheindlin, aka, “Judge Judy.”  New York Law School.   Among other, ABC News reported the story.

judge judy

Five for Friday #243

Welcome to Friday and the 243rd #fiveforfriday legal ethics quiz!

Wait . . . the Friday post is the only connection I have with many of you, and this is the first of 2022.  

So, should I have opened with “Happy New Year?” 

If so, I apologize.  I never know where the line is between a good-natured greeting and “hey weirdo, it’s not a new year anymore.”  Where’s the cutoff?  When is past time to open each conversation with New Year’s wishes?  Readers should feel free to weigh-in.  

Next, come Monday, I hope to present the answers in a new format. It’s either going to be by video or podcast.  I think this will provide an opportunity to drill deeper into the issues that the questions are intended to highlight.  Further, I’m going to include the First Brother as my guest.  He’s not a lawyer, but he’s a potential consumer of legal services.  And that’s the point.  There’s value in the non-lawyer perspective on rules that are intended to protect clients.

Finally, I should make a half-hearted effort to honor tradition and attempt to tie this introduction to the quiz number.

With 243 in mind, I’m struck by the fact that, but for Omicron, many of us would about now be departing for Montreal and the YLD Thaw. There’s a lot about the event that I will miss, including the epic CLE that Andrew Manitsky and I were scheduled to present, the camaraderie that’s always part of the weekend, and the VBA’s annual Friday-night takeover of Hurley’s.

I will not miss high temperatures of 2 with wind chills plummeting towards 43 below.

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

 Imagine a CLE at which I address the distinction between “public record” and “generally known.”

Which 2 of the 7 Cs of Legal Ethics am I most likely to mention?

  • A.  Conflicts & Communication.
  • B   Conflicts & Confidentiality.
  • C.  Confidentiality & Commingling.
  • D.  Confidentiality & Candor.

Question 2

 Office employs Paralegal.  In a new matter, Paralegal has a conflict that would prohibit Paralegal from accepting the representation if Paralegal were a lawyer.  Which is most accurate?

  • A.  Paralegal’s conflict is imputed to all lawyers in Office and Office must decline the representation.
  • B.  Paralegal’s conflict is imputed, but only to any lawyer at Office who regularly supervises Paralegal.
  • C.  A comment to one of the rules indicates that while Paralegal’s conflict is not imputed to any lawyer at Office, Paralegal should be screened from involvement in the new matter.
  • D.  Fake question. In Vermont, conflicts are not imputed from one lawyer to others in the same office, and they certainly aren’t imputed from non-lawyers to lawyers.

 Question 3

 Lawyer referred Client to Attorney.  Lawyer and Attorney do not work in the same firm.  Can Attorney share part of the fee with Lawyer?

  • A. No.
  • B.  Yes, if the fee division is in proportion to the work done by each, or, each assumes joint responsibility for the representation.
  • C.  Yes, if Client agrees, the fee sharing agreement is confirmed in writing, and the total fee is reasonable.
  • D.  B & C.

Question 4

 Client contacts Lawyer. Client explains that they are represented by Attorney in a matter.  Client wants a second opinion.   Lawyer is not otherwise involved in the matter.

True or False?

Vermont’s rule prohibits Lawyer from communicating with Client about the matter without Attorney’s consent.

Question 5

A famous jurist made headlines this week for donating $5 million to her law school to fund scholarships – full tuition and books – for 10 women.  In addition, upon completing their first year of law school, each scholarship recipient will receive an offer of a summer fellowship with the jurist.

The jurist’s granddaughter, Sarah Rose, is currently a 3L at the same law school.  Sarah also works as a law clerk for her grandmother on their latest streaming venture.

Name the jurist.

Bonus – name the law school.