Monday Morning Answers #246

Happy Monday morning!

Friday’s questions are here, along with my ranking of the Girl Scout cookies.  Suffice to say, readers are not impressed with my placement of Thin Mints.  Answers to the questions follow today’s Honor Roll.

Honor Roll

  • Karen Allen, Karen Allen Law
  • Brian Amones, Law Offices of Brian Amones
  • Matt Anderson, Pratt Vreeland Kennelly Martin & White
  • Evan Barquist, Montroll Oettinger & Barquist
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, University of Illinois Chicago School of Law
  • Amy Butler, Law Office of Amy Butler
  • Rich Cassidy, Rich Cassidy Law, Vermont Bar Association Board of Managers
  • Matt Daly, Daly and Daly
  • Benjamin Gould, Paul Frank + Collins
  • Bob Grundstein
  • Merle Haskins, Assistant Judge, Caledonia County
  • Glenn Jarrett, Jarrett & Luitjens
  • Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Bonneau Kennedy, Mother (of the) Blogger
  • Elizabeth Kruska, Immediate Past-President, Vermont Bar Association Board of Mangers
  • A. J. Larosa, MSK Attorneys
  • John LeddyMcNeil Leddy Sheehan
  • Jordana Levine,Marsicovetere & Levine, Vermont Bar Association Board of Managers
  • 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 RobertsDarby, Kolter, Roberts
  • Jim Runcie, Ouimette & Runcie
  • Jonathan Teller-Elsberg, Sheehey Furlong & Behm
  • Honorable John Valente, Vermont Superior Judge
  • Thomas Wilkinson, Jr.,Cozen & O’Connor

 ANSWERS

Question 1

 Vermont’s rule on client confidences includes several exceptions to the general duty not to disclose information relating to the representation of a client.  One exception lists the situations in which disclosure of otherwise confidential information is mandatory.  Another lists the situations in which disclosure is permitted, but not required.

There’s another rule that does something similar.  The first paragraph lists the situations in which a lawyer’s act is mandatory.  The second paragraph lists the situations in which the same act is permitted, but not required.  What’s the topic of the rule?

  • A. Communicating with a person represented by counsel.
  • B. Dealing with an unrepresented person.
  • C. Trust Accounting.
  • D.  Withdrawing from the representation of a client.  V.R.Pr.C. 1.16.  Paragraph (a) lists the situations in which an attorney must withdraw, paragraph (b) the situations in which withdrawal is permitted.

Question 2

Lawyer called me with an inquiry.  Responding, I noted “but there’s a comment to the rule that states that in negotiations, certain statements are not to be taken as statements of material fact. For instance, what your client’s bottom line might be with respect to settlement.”

What’s the title of the rule I was discussing?

  • A. Communication With Person Represented By Counsel.
  • B.  Truthfulness In Statements To Others.  V.R.Pr.C. 4.1, see also, Puffery & the Ethics of Settlement Negotiations.
  • C.  Respect For Rights Of Third Persons.
  • D.  Duties to Prospective Clients.

Question 3

When a lawyer holds funds in trust in which two or more persons claim interests, a rule specifically requires the lawyer:

  • A.  to disburse (or not) as directed by the client.
  • B.  to keep the disputed funds in trust until the dispute is resolved.
  • C.  to promptly distribute all portions that are not in dispute.
  • D.  B & C.   V.R.Pr.C. 1.15(e).

 Question 4.

Fill in the blank.

Attorney called me with an inquiry.  I listened, then said “nothing in the rules requires a lawyer or law firm to enroll in a ‘positive pay’  service.  Still, you’d be smart to consider it.  It might be used to show that you took reasonable steps  ____________.”

It’s most likely that the remainder of my response was:

  • A.  to avoid a conflict of interest.
  • B.  to safeguard client funds. See, this post with a tip to protect against check fraud.
  • C.  to charge a reasonable fee.
  • D.  to remonstrate with a client who provided false information to a court.

Question 5

Ron Torbert graduated from Harvard Law School.  Attorney Torbert spent many years in corporate and construction law before retiring from the practice of law in 2019.

Now, Ron works in a different field.  With the 7 Cs of legal ethics in mind, it’s an understatement to say that Ron is competent in his current line of work, one in which he works as a judge of sorts. In fact, more than 100 million people recently watched Ron perform his official duties.

What does Ron do for work now that he is no longer practicing law?

Ron is now an NFL referee.  Last week, Ron was the head official in Super Bowl LVI.

torbert reffing

The 246th legal ethics quiz & the definitive power ranking of the Girl Scout Cookies®.

Welcome to Friday and the 246th legal ethics quiz.

Social media informs me that Girl Scout Cookie season is upon us.  To me, ordering direct from the GS website isn’t the same as ordering for a friend or relative’s kid.  Thus, it’s with a pang of sadness that I report that nobody asked me to buy any this year.  I wonder if that means that my cousin Colleen has disowned me.

Anyhow, recalling that the Friday post in which I rated the Halloween candies caused my mother to buy me my favorites, I’m here today to share my ranking of the Girl Scout cookies.

Caveat: I confess, until this morning, I was completely unaware of the proliferation in flavors.  They’re up to TWELVE! I’d never heard of (and obviously haven’t tried) Adventurefuls, Carmel Chocolate Chip, Lemon-Ups, Toast-Yays or Toffee-tastic.  As a result, these five aren’t eligible to appear in my rankings.  Honestly, I’m not interested in trying them.  The expanded menu reminds me of when a restaurant that makes stellar burgers or wings decides to offer mediocre wings or burgers. That’s not what made me like to eat here in the first place.

Ground rule:  I’m not ranking the entire catalogue of the seven I’ve tried.  Rather, and in anticipation of March Madness, I’m listing my Final Four.

Without further ado, and in reverse order, here is the definitive power ranking of Girl Scout Cookies®.

  • 4.Thin Mints®This might be controversial. It’s not that I don’t like Thin Mints, it’s that I like Thin Mints.  Whereas I love the next 3. Of my top 4, Thin Mints are the most likely to last for more than one day after opening.  Side note: like many of the top Halloween candies, Thin Mints taste best if kept frozen.
  • 3. Shortbread/Trefoils®.  Classic never goes out of style.  Like Thin Mints, one of the three original flavors.  This unrivaled combination of cake & cookie is tasty enough on its own, but also the perfect tool to dip into milk or hot chocolate.  Ranking them at 3 instead of 4 is likely influenced by my childhood love of the Lorna Doone.
  • 2. Do-si-dos® | Peanut Butter Sandwich.  Peanut butter is my favorite condiment.  I don’t know what the secret ingredient is, but this peanut butter is better than any other.  However, it’s the cookie – with its sublime hint of oatmeal (and resulting hint of crunch) –  that drives this ranking. Upon opening, it’s difficult, but doable, for me to leave any for the next day. Bonus points because “do-si-do” makes me laugh as it reminds me that someone inexplicably concluded that square dancing should be part of our middle school phys-ed curriculum.
  • 1. Caramel deLites® | Samoas® Given my love of all things peanut butter, the fact that these are above Do-si-dos says it all. While there’s a chance that some of the Do-si-dos will remain the next day, opening a box of Samoas means I’ve agreed to eat its entire contents. They taste so good that I lose all control, inhaling eating the next one knowing full well how mad I’ll be at myself when they’re gone. If forced to eat only one food for the rest of my life, I’d be hard-pressed not to choose Samoas.  In sum, Carmel deLites/Samoas are an all-time great that is worthy of wearing the championship crown.  Warning: freeze at your own peril.  They’re best fully thawed, which, if you’re anything like me, can be problematic if you lack the will power to wait until they’re fully thawed.

And, yes.  I will order from the first reader to ask me to do so.

 Onto the quiz!

samoas

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

Vermont’s rule on client confidences includes several exceptions to the general duty not to disclose information relating to the representation of a client.  One exception lists the situations in which disclosure of otherwise confidential information is mandatory.  Another lists the situations in which disclosure is permitted, but not required.

There’s another rule that does something similar.  The other rule’s first paragraph lists the situations in which a lawyer’s act is mandatory.  The second paragraph lists the situations in which the same act is permitted, but not required.  What’s the topic of the rule?

  • A.  Communicating with a person represented by counsel.
  • B.  Dealing with an unrepresented person.
  • C.  Trust Accounting.
  • D.  Withdrawing from the representation of a client.

Question 2

Lawyer called me with an inquiry.  Responding, I noted “but there’s a comment to the rule that states that in negotiations, certain statements are not to be taken as statements of material fact. For instance, what your client’s bottom line might be with respect to settlement.”

What’s the title of the rule I was discussing?

  • A. Communication With Person Represented By Counsel.
  • B. Truthfulness In Statements To Others.
  • C. Respect For Rights Of Third Persons.
  • D. Duties to Prospective Clients.

Question 3

When a lawyer holds funds in trust in which two or more persons claim interests, a rule specifically requires the lawyer:

  • A. to disburse (or not) as directed by the client.
  • B. to keep the disputed funds in trust until the dispute is resolved.
  • C. to promptly distribute all portions that are not in dispute.
  • D. B & C.

 Question 4.

Fill in the blank.

Attorney called me with an inquiry.  I listened, then said “nothing in the rules requires a lawyer or law firm to enroll in a ‘positive pay’  service.  Still, you’d be smart to consider it.  It might be used to show that you took reasonable steps  ____________.”

It’s most likely that the remainder of my response was:

  • A.  to avoid a conflict of interest.
  • B.  to safeguard client funds.
  • C.  to charge a reasonable fee.
  • D.  to remonstrate with a client who provided false information to a court.

Question 5

This is Ron Torbert.

Ron Torbert

Ron graduated from Harvard Law School.  Attorney Torbert spent many years in corporate and construction law before retiring from the practice of law in 2019.

Now, Ron works in a different field.  With the 7 Cs of legal ethics in mind, it’s an understatement to say that Ron is competent in his current line of work, one in which he works as a judge of sorts. In fact, more than 100 million people recently watched Ron perform his official duties.

What does Ron do for work now that he is no longer practicing law?

Surreptitious recordings (still) make my Spidey-sense tingle.

I’ve struggled to find inspiration to blog. So, today, I’m going to re-post a blog that originally appeared last May.  I’ve edited it slightly, moving several paragraphs to an end note.

The topic: whether a lawyer may ethically record conversations without disclosing the fact of the recording to the other person or people in the conversation.  Since the original post, I’ve received two inquiries on the topic. One involved a lawyer who was convinced that a client would soon make a frivolous disciplinary complaint, the other a lawyer who was dealing with an unrepresented opposing litigant who the lawyer felt had been less than honest with a court.

Last week, I was part of a panel that presented at the mid-year meeting of the National Organization of Bar Counsel.  Our panel used hypotheticals to frame discussion of issues on which jurisdictions take varying approaches.  Given that some states are “one-party consent” states and others “two,” this is one of those issues.  Nevertheless, in preparing for the seminar, my fellow panelists agreed that, even in one-party consent states, lawyers should think long and hard about surreptitiously recording conversations.  Which was the exact point I hoped to make in the original post, a post in which I stated that inquiries involving the word “surreptitious” make my Spidey-sense tingle.

spidey sense

I hope to return to original programming soon.  For now, here’s the reformatted version of the post that ran on May 20, 2021.

*****

A few months ago, a lawyer called to discuss the ethics issues associated with surreptitiously recording a conversation with a client.  More recently, another lawyer contacted me to ask about recording conversations with opposing counsel.

In my time here – 23 years – we’ve not received a single complaint in which a current or former client alleged that their lawyer secretly recorded them.  Nor have we received such a complaint from one lawyer against another. Of course, it’s difficult to complain about something you don’t know.  As such, I don’t necessarily consider the absence of evidence to be evidence of absence. For all I know, it happens, but the lawyer never uses the recording or alerts the client or other lawyer to its existence.[i]

Many state and local bar associations have issued advisory opinions on this issue.  Some have concluded that surreptitious recordings are inherently deceptive and unethical per se.  More have concluded that undisclosed recordings, standing alone, do not violate the rules.

The most prominent opinion might be ABA Formal Opinion 01-402. It’s an opinion in which the ABA’s Standing Committee on Ethics and Professional Responsibility advised that, in one-party consent jurisdictions, a lawyer does not violate the ethics rules merely by recording a conversation without informing the other participants.  Rather, it’s only unethical if the lawyer does something else to violate the law or rules. The ABA Committee was “divided as to whether a lawyer may record a client-lawyer conversation without the knowledge of the client, but agree[d] that it is inadvisable to do so.”

In January 2021, the Supreme Court of Arizona’s Attorney Ethics Advisory Committee recommended that the court approve Ethics Opinion EO-20-0002.  It’s an opinion in which the Arizona Committee concluded:

  • “that it is not per se unethical or ‘inherently deceptive’ for an attorney in Arizona to record a telephone communication between the attorney and another individual without disclosing that the attorney is recording the communication, so long as the recording does not violate applicable federal or state law. The lawyer must still act consistent with all applicable Arizona Rules of Professional Conduct in making and using the recording, and an attorney’s undisclosed recording may still violate various Ethical Rules, depending on the facts of each case.”

Some members of the Arizona Committee dissented.  Here’s the crux of the dissent:

  • “Over the past 40 years, Arizona has imposed a general blanket prohibition against an attorney recording a conversation without disclosure based on the view that any such recording is inherently deceptive and in violation of ER 8.4(c). This blanket prohibition is subject to a number of exceptions that have been articulated in several ethics opinions. The bedrock for the blanket prohibition is the simple proposition that, although such recordings may be legal under Arizona law at the end of the day, lawyers need to hold themselves to a higher standard. Over those 40 years, this rule, along with its exceptions, has worked well. There has been no hue and cry for a change.” (citation omitted).

In the end, and as reported by Professor Bernabe and Ethics at Law, the Arizona Supreme Court did not approve or adopt the opinion.  Still, aspects of the opinion provide educational value.  In particular, four of the majority’s caveats to its broader conclusion.

First, echoing the Vermont case that I mentioned above (and that is now in Endnote 1), the majority noted that it would continue to be a violation for a lawyer who was recording a conversation to state they were not.

Second, with respect to recording clients, the opinion stated that it is:

  • “rare that a client’s interest would ever be served by lawyers making undisclosed recordings of conversations between lawyer and client, and therefore unlikely that undisclosed recording of a lawyer-client conversation would ever be appropriate.”

And that,

  • “Lawyers should also avoid undisclosed recordings of conversations with their own clients, due to the likelihood that such recordings, if later discovered, would undermine the trust and candor that are essential to the lawyer-client relationship.”

Third, with respect to opposing lawyers, the Arizona Committee cautioned that “[u]ndisclosed recordings may also have serious negative effects on what would otherwise be collegial working relationships with opposing counsel.”

Finally, while noting that Arizona is a one-party consent state, the Committee stated:

  • “Before choosing to make an undisclosed recording, the Committee strongly recommends that lawyers consider whether a disclosed recording would serve the same purpose, in order to avoid unnecessarily risking the potential pitfalls of undisclosed recording.”

I understand that technology has made it incredibly easy to record every encounter.  I also understand that we are more and more tempted to record conversations with people who we perceive to be difficult.   Still, I view my role as a risk manager of sorts.  And, in that role, my Spidey sense tingles when the conversation includes “clients,” “opposing counsel,” “secret,” and “surreptitious.”

As always, be careful out there.

[i] In the mid-2000s, two Vermont lawyers represented a client charged with murder.  Mid-trial, the lawyers learned that an incarcerated person claimed to have knowledge that someone other than their client had committed the crime.  The court granted a short recess for the lawyers to follow-up on the tip. The lawyers interviewed the incarcerated person.  The person asked if the lawyers were recording the conversation.  They were.  Yet, one answered “no” and the other remained silent.

I don’t recall how, but the incarcerated person found out that the conversation had been recorded. A disciplinary complaint followed.  Eventually, my office charged the lawyers with violating Rules 4.1 and 8.4(c) of the Vermont Rules of Professional Conduct.  The former prohibits a lawyer from knowingly making a false statement of material fact to a third person while acting on a client’s behalf.  The latter makes it professional misconduct to engage in conduct involving dishonesty, deceit, misrepresentation, or fraud.

To be clear, the charges were not based on the surreptitious recording itself.  Vermont is a one-party consent state.  The charges focused on the lawyers’ deceptive answer and affirmation-by-silence when asked if the conversation was being recorded.

A hearing panel determined that the lawyers had violated Rule 4.1, but not Rule 8.4(c).  Upon review, the Supreme Court affirmed, concluding that not every dishonest act violates Rule 8.4(c), only those acts that adversely reflect on the lawyer’s fitness to practice.  The Court held that while the lawyers had violated Rule 4.1 by falsely stating they were not recording the conversation, the circumstances were such — the mid-trial reception of a tip that might have exonerated their client — that the misrepresentation did not adversely reflect on the lawyers’ fitness to practice.  Neither the hearing panel nor the Court opined as to whether the lawyers violated the rules merely by recording the conversation without informing the incarcerated person.

Monday Answers #245: the Sac-O-Suds!

Happy Monday morning!

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

Honor Roll

  • Matt Anderson, Pratt Vreeland Kennelly Martin & White
  • Evan Barquist, Montroll Oettinger & Barquist
  • Penny Benelli, Dakin & Benelli
  • Andrew Delaney, Martin Delaney & Ricci
  • Heather Devine, Tarrant Gillies Shems
  • Bob Fletcher, Stitzel Page & Fletcher; President, Vermont Bar Association,
  • Bob Grundstein
  • Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
  • Deb Kirchwey, Law Office of Deborah Kirchwey
  • 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.
  • Keith RobertsDarby Kolter & Roberts
  • Brice Simon, Breton & Simon
  • Jonathan Teller-Elsberg, Sheehey Furlong & Behm
  • Jason Warfield, J.D.

answers

Question 1

 The following are exceptions to a particular rule.

  • to establish a claim or defense in a controversy between the lawyer and client;
  • to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved; or,
  • to respond to allegations in any proceeding concerning the lawyer’s representation of the client.

The rule addresses one of the 7 Cs of Legal Ethics.  Which one?

CONFIDENTIALITY.  See, V.R.Pr.C. 1.6.  The listed exceptions are in paragraph (c)(3), the so called “self-defense” exception.

 Question 2

Fill in the blank.

A comment to one of the conflicts rules states that “continued common representation will almost always be inadequate if one client _________________.”

  • A.  pays a higher percentage of the lawyer’s fee than the other client.
  • B.  is also a former client, but in an unrelated matter.
  • C.  is the lawyer’s main contact on matters related to the representation.
  • D.  asks the lawyer not to disclose to the other client information relevant to the common representation.  See, V.R.Pr.C. 1.7, Cmt. [31].

 Question 3.

Notwithstanding a conflict of interest, a lawyer may represent a client if

  • A. The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client and the representation is not prohibited by law.
  • B.  The representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal.
  • C.  Each affected client gives informed consent, confirmed in writing.
  • D.  A, B, and C.  These are the elements set out in Rule 1.7(b).

Question 4

Lawyer called with an inquiry. I listened, then responded:

  • “There’s no rule that specifically prohibits it. But the fee must be reasonable, you must comply with the rule on business transactions with a client, and you should consider whether it would create a personal interest that would materially limit your ability to provide the client with competent and candid legal advice.”

Given my response, it’s most like that Lawyer called to ask about:

  • A.  a contingent fee.
  • B.  accepting an ownership interest in a client’s business as payment for legal fees.
  • C.  representing a family member.
  • D.  marrying a client.

Karen Rubin is a lawyer (and friend of this blog) who writes for The Law for Lawyers Today. Last year, Karen posted Take stock instead of legal fees? Take a hard look and mind the ethics rules.

Question 5

In the introduction, I mentioned something that I saw on Twitter the other day.  Another thing that I saw on Twitter this week was this:

I agree!

Here’s today’s question:

Vinny’s clients were charged with robbing and shooting a store clerk.  However, when they were arrested, they thought it was for accidentally shoplifting.  While at the store, Vinny’s cousin didn’t pay for an item he had put in his pocket because his hands were full.

What was the item?   A can of tuna.

Bonus: what’s the name of the store?  Sac-O-Suds

Sac O Suds

Five for Friday #245: Snow Days

Welcome to Friday and the 245th legal ethics quiz.

Around Vermont, today is the day that school-aged me loved more than any other.  A day within the academic calendar that enjoys romanticized status.

The snow day.

I’m too old to remember what we did on snow days.  I tell myself that the First Brother and our friends grabbed our red plastic sleds (mine had yellow handles) and bravely trudged through the storm to our favorite sliding spots.  Yes, we call it “sliding.”

One such spot was Blueberry Hill.  At least that’s what the kids who lived in the neighborhoods off Williston Road called it.  I doubt that name appears on any official map or record.  In my memory, it was a treacherous hill that demanded great bravery.  There was a sharp right turn about halfway down.  Take it too wide and you’d slam into a tree, cut it too tight and you’d fall off a cliff into a ravine.  Even among those who properly navigated the corner, only the most courageous steered towards the jump that older kids built had into the run – a jump that, if taken, resulted in “legend” status the following day in the cafeteria.

If we could visit Blueberry Hill today, we’d probably laugh at how small – and not steep – it seems in comparison to the mountain of our memories.  Alas, there’s no longer any sliding there.  Like Joni Mitchell sang, they paved our wintry paradise and put up a condominium complex.  And while I’m suspect that the kids who live in our old neighborhoods have found a hill to conquer, I’m convinced that they’ll never know the best part of our experience: the way that we learned it was a snow day.

Scrolling through Twitter last night, I saw this:

Snow Day

It’s time-stamped 6:33 PM.  I’m by no means criticizing the announcement or the many like it posted by other school districts. Advance notice is a good thing, especially for parents who need to plan.  Alas, I feel for the kids who will never know the experience of waking up early, turning on the radio, and waiting to learn whether your school was on the list of closings.

For us, the anticipation was intense.  Schools were called alphabetically, and we lived in South Burlington.  Sure, there were signs.  If Burlington schools were closed, our hopes would rise as there’s no way we’d be open if they’re closed!  Or, conversely, if Essex or Jericho schools weren’t announced, our spirits would sink, knowing that if they’re open, we will be too.  Still, we never knew until we knew.

While I don’t remember the exact list, I remember it feeling like the radio announcer was listing the Rs in slow motion . . .

  • “Randolph High School . . . Richford High School . . . Richmond Elementary . . . “

Oh, to be so young and carefree that our whole lives turned on what came next!

Would it be the soul-crushing “Stowe Middle and High School?”  Or the four greatest words in the history of snow days? “

“All South Burlington Schools.”

Maybe the anticipation I remember can be replicated by constantly refreshing the school district’s Twitter feed.  Or maybe hopes rise & fall with the results spit out by the Snow Day Calculator.  Still, I’ll always smile when I reminisce about those winter mornings huddled around the radio.

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

Here are some exceptions to one of the rules:

  • to establish a claim or defense in a controversy between the lawyer and client;
  • to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved; or,
  • to respond to allegations in any proceeding concerning the lawyer’s representation of the client.

The rule addresses one of the 7 Cs of Legal Ethics.  Which one?

 Question 2

Fill in the blank.

A comment to one of the conflicts rules states that “continued common representation will almost always be inadequate if one client _________________.”

  • A.  pays a higher percentage of the lawyer’s fee than the other client.
  • B.  is also a former client, but in an unrelated matter.
  • C.  is the lawyer’s main contact on matters related to the representation.
  • D.  asks the lawyer not to disclose to the other client information relevant to the common representation.

Question 3.

Notwithstanding a conflict of interest, a lawyer may represent a client if

  • A. The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client and the representation is not prohibited by law.
  • B.  The representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal.
  • C.  Each affected client gives informed consent, confirmed in writing.
  • D.  A, B, and C.

Question 4

Lawyer called with an inquiry. I listened, then responded:

  • “There’s no rule that specifically prohibits it. But the fee must be reasonable, you must comply with the rule on business transactions with a client, and you should consider whether it would create a personal interest that would materially limit your ability to provide the client with competent and candid legal advice.”

Given my response, it’s most like that Lawyer called to ask about:

  • A.  a contingent fee.
  • B.  accepting an ownership interest in a client’s business as payment for legal fees.
  • C.  representing a family member.
  • D.  marrying a client.

Question 5

In the introduction, I mentioned something that I saw on Twitter the other day.  Another thing that I saw on Twitter this week was this:

I agree!

Vinny’s clients were charged with robbing and shooting a store clerk.  However, when they were arrested, they thought it was for accidentally shoplifting.  While at the store, Vinny’s cousin didn’t pay for an item he had put in his pocket because his hands were full.

What was the item?

Bonus: what’s the name of the store?

Happy (belated) Birthday Papa!

Yesterday would’ve been my grandfather’s 106th birthday.  In 2018, his birthday fell on a Friday and I wrote about him in the introduction to that week’s legal ethics quiz. I try to remember to re-post the blog every February 1.  This year I forgot.  So, I’m posting it a day late.  It’s no big deal.  I guarantee that Papa knows me well enough to know that that if he was still with us, I’d be calling right about now to wish him a belated happy birthday.

Happy Birthday Papa!

Here’s the original post.

***************

Welcome to # 105!

Today I’m going to write about Eddie Bonneau.   Eddie was my grandfather, my mom’s dad.  I called him “Papa.”

67FCDEE4-4A0B-4B58-9AB7-151422E4069A

How am I tying this to #105?  Good question.

My grandfather isn’t 105.  His birthday was February 1 and, if still alive today, he’d have just turned 102. It only feels like 105 years since I’ve seen him.  So, there’s that.

Plus, using a prop to which I frequently resort in this column, the final digit in 105 is, well, 5.  And VT Route 5 runs through Bradford, which is where my grandfather lived for the final 50 (or so) years of his life.

Good enough for me.

I’m going to share two stories about Papa.  But first, some background.

Eddie Bonneau was born in Chicago.  Somehow, his family ended up in Lebanon, New Hampshire.  Papa dropped out of Lebanon High School after his sophomore year.  Like many of French-Canadian descent, he went to work in a woolen mill.

When he was 21, he married my grandmother.  She was 17 and had recently graduated from high school.  She was the breadwinner: Nanny made $7 per week, Papa $5.

Within 10 years, they’d had 4 kids and moved across the river & up the valley to Bradford, Vermont.  My grandfather opened a grocery store.

The grocery store lasted only until the early 1950’s.  My grandfather was deep in debt. His creditors took over.  Papa decided against bankruptcy, concluding that it was morally and ethically wrong.

Over the next few years, he and my grandmother had 2 more kids.  For the rest of his life, my grandfather worked here and there: some jobs as a door-to-door salesman, one as a butcher, another as a clerk at the 5 & Dime.

I remember him as being the smartest guy I knew. He didn’t talk much, but when he did, you listened. What he didn’t have in school smarts, he had 100 times over in common sense.  He was a voracious reader & keen follower of current events.

Papa loved cribbage.  And cards.  He dutifully played endless rounds of pinochle with my grandmother and various family & friends, even though my grandmother usually whupped him, no matter their respective partners.

Papa wasn’t active.  I don’t think I ever saw him in anything but dark pants and a button-up white shirt.  That’s how he dressed even when he & my grandmother took us to Lake Winnipesaukee, where he’d sit on a bench reading a newspaper while we swam.  Another time, he wore his clothes into a boat.  We were staying at a camp on the beach at Niquette Bay on Lake Champlain.  He helped me catch my first fish.  A little pumpkinseed.

Besides not being active, Papa smoked.  He was an equal opportunity smoker.  He smoked for breakfast, he smoked for lunch, and he smoked for dinner.  He smoked on the bench at the beach.  I vividly recall mornings at his breakfast table, where we’d pretend not to hear his daily coughing fits that he thought the wafer-thin bathroom walls muffled.

Emphysema eventually killed him in 1994.

Before it did, my brother and I have an enduring memory of visiting our grandparents for a family event, only to have Papa disappear. We went to find him.  He had wheeled his oxygen tank to the barn to sneak a cigarette.  By then we were in our late teens, maybe 20’s.  We didn’t feel compelled to make a mandatory report to our grandmother, mom, or aunts.

You see, one thing Papa loved, but lacked, was quiet.  My mom has 4 sisters and a brother. Unlike my grandfather, one might accurately describe my grandmother and her 6 children as the sharing type.  As in, they’ve always shared pretty much every thought that ever entered their heads.  So, if Papa wanted a smoke in the quiet of the barn, who were my brother and I to stop him?

Now, the stories.

First, like I said, my grandfather was super smart.  And he was proud.  Not vain, but proud. I visited my grandparents during the holiday break of my first year in law school. Once we sat down, he said, after a long drag, “so Mister, tell me a law.”

I had no ready answer. He wasn’t impressed.

Next, for special occasions, my grandmother would send me, my brother, and our cousins checks.  Sometimes $3, sometimes $5.  She’d include a card with a note to “buy yourself an ice cream!”  Once, in law school, I lost one of my $3 checks. I was too afraid to tell her, so I let the Irish side of me take over.  Meaning, I just ignored it, figuring that ignoring it would make the issue go away.

Epic fail.  Eventually, my mother called to ask why I hadn’t cashed Nanny’s check. I had to fess up.  Again, Papa wasn’t impressed with someone who cared so little about $3 as to lose a check.

A few months later, Nanny & Papa gave me $300 as gift for my graduation from law school.  For people like them, it was an astonishingly staggering amount.  Think about it: it’s 25 times as much as their combined weekly income as newlyweds. I cashed the check immediately.

About a month later, I was back in Vermont and went to visit my grandparents. First words out of Papa’s mouth: “guess you didn’t lose that one.”

I don’t how to end this post.  I’m not sure how it ties to 105, other than it doesn’t.  I just felt like writing about my grandfather.  I miss him.  He was a good man. He had nothing, but made sure that his kids had something, which, besides my parents, is one of the main reasons that I have anything.

Thanks for indulging me.

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Blogger’s Note:  This story was originally posted on February 1, 2018.

R.I.P. Cheslie Kryst – may your tragic story spur us to continue to help others.

This post deals with suicide.  It is devastatingly sad.

Here is a picture of Attorney Cheslie Kryst:

Cheslie

Attorney Kryst first made national news in May 2019 when she was crowned Miss USA.  At the time, she was in private practice in North Carolina.  I referenced the achievement in Question 5 of this #fiveforfriday legal ethics quiz, also noting Attorney Kryst’s pro bono work.

A few months later, Attorney Kryst’s firm announced her role in securing a sentence reduction for a pro bono client who had been sentenced to life in prison. Later that year, Insider noted that Attorney Kryst was far more than the stereotypical pageant winner, using her podium as Miss USA to advocate for social justice and changes to laws that resulted in long prison sentences for relatively low-level drug possession.

Upon leaving private practice, Cheslie started White Collar Glam, a site dedicated to assisting others to find “appropriate, affordable, professional clothing.”  The project was inspired by Cheslie’s experience during a mock trial competition. Then, in 2020 and 2021, Cheslie received Emmy nominations for her work as reporter for Extra.

Cheslie died on Sunday.

As reported by many outlets, including the Charlotte Observer, the Washington Post, and CNN, Cheslie jumped from the Manhattan building in which she lived.

Cheslie was 30 years old.

This is the third post in which I’ve referenced suicide and the legal profession.  That’s three too many.

In the first, 108, I shared statistics that suggest that 108 Vermont lawyers with active licenses had serious thoughts of suicide in the previous year.  In the next, Enough, I linked to the heartbreaking story of Gabe MacConnail and Joanna Litt, and urged us all to check in with others who we know are struggling.

We must continue the effort.  We must work to ensure that everyone knows:

  • It’s okay not to be okay.
  • It’s okay to ask for help.
  • Help is available.

May our efforts help to prevent a fourth blog post.

May Cheslie rest in peace.

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If you need help:

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If you want to help others but don’t know how, start with my post Ask the Question.

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Previous Wellness Wednesday Posts

 Aiming for Well-Being

Was That Wrong? Evading service of a disciplinary complaint by pretending to be your identical twin (who is also a lawyer).

Was That Wrong? is a semi-regular column on Ethical Grounds. The column features stories of the absurd & outrageous from the world of legal ethics and attorney discipline. My aim is to highlight misconduct that I hope you’ll instinctively avoid without needing me to convene a continuing legal education seminar that cautions you to do so.

The column is inspired by the “Red Dot” episode of Seinfeld. In the episode, George Costanza has sex in his office with a character known only as “the cleaning woman.”  His boss finds out.  Here’s their ensuing exchange:

(Scene) In the boss’ office.

  • Boss: I’m going to get right to the point. It has come to my attention that you and the cleaning woman have engaged in sexual intercourse on the desk in your office. Is that correct?
  • George: Who said that?
  • Boss: She did.
  • George: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, you know, because I’ve worked in a lot of offices and I tell you people do that all the time.
  • Boss: You’re fired.
  • George: Well, you didn’t have to say it like that.

The full script is HERE.  The scene is HERE.

Now, on to today’s entry in the Was That Wrong? catalogue.

It came to my attention via this tweet in which a lawyer shared a news report that the Louisiana Supreme Court had disbarred an attorney:

The court’s opinion is here.

The misconduct is significant.  Indeed, the court concluded that the lawyer “neglected his client’s legal matter, charged and collected an unreasonable fee, converted client funds held in his trust account, failed to return his client’s file upon request . . .”

I agree that it sounds bad.  Alas, as regular readers know, so far, the misconduct doesn’t warrant a Was That Wrong? post.  Let me complete the quote from the court’s opinion:

“. . . and engaged in deceptive and dishonest behavior in the course of his disciplinary proceeding.”

What type of deceptive and dishonest behavior? 

First, when the client filed a disciplinary complaint, the lawyer asked for and received two extensions of the deadline to submit a response to disciplinary authorities. Then, the lawyer requested a third extension, stating that his response was on his laptop and that the laptop had been stolen when his truck was burglarized.  He included what purported to be a copy of a “Voluntary Statement” that he claimed he’d given to the police. When disciplinary authorities followed-up, the police had no record of a vehicle burglary being reported on the date that the lawyer claimed to have reported it. In addition, an officer noted “several irregularities in the ‘Voluntary Statement’ submitted by [the lawyer], including the absence of a complaint number or a description of the vehicle in question.”

Next, the lawyer had represented the client in an insurance claim. A broken water line damaged the client’s home.  The insurer sent payouts to the lawyer.  In response to allegations that he’d misused the funds, the lawyer informed disciplinary authorities that the client had instructed him to hold the funds in trust and to pay contractors who repaired the house.  The lawyer even submitted copies of what purported to be invoices and receipts.  The contractors later testified that the invoices and receipts were fabricated.

Eventually, disciplinary authorities filed formal charges against the lawyer.  Which, finally, brings us to the aspect of the story that convinced me to add it to the Was That Wrong? collection.  Here’s how I envision the screen adaptation:

  • Court: We’re going to get right to the point. It has come to our attention that you tried to avoid service of a disciplinary complaint by pretending to be your identical twin brother.
  • Lawyer: Who said that?
  • Court: The evidence.[i]
  • Lawyer: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, you know, because I’ve worked in a lot of offices and I tell you people do that all the time.
  • Court: Disbarred.
  • Lawyer: Well, you didn’t have to say it like that.

As always, be careful out there.

legal ethics

[i] Here’s the relevant portion of the court’s opinion:

“On March 20, 2018, the ODC’s investigator, Robert Harrison, traveled to respondent’s law office in Lafayette to serve him with the subpoena. Respondent’s office is located in a building that he shares with his identical twin brother, Jade Andrus, who is also an attorney. Upon his arrival, Investigator Harrison encountered respondent in the parking lot. After introducing himself to respondent and giving him a business card, Investigator Harrison informed respondent he was there to serve him with a subpoena. In response, respondent stated that he was not Brad Andrus, but was Jade Andrus, Brad’s twin brother. Following his conversation with “Jade,” Investigator Harrison went inside the building and asked to see respondent. The receptionist informed Investigator Harrison that respondent had just left the office moments before.”

Prior Was That Wrong? Posts