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. 


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