Monday Morning Honors #265

Happy Halloween!

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

How about one last look at The First Brother pulling off history’s greatest performance as spinach (with kudos to my mom for the concept):

And, special kudos to Cary Dube.  Cary and her mom, Priscilla, are practicing members of the Vermont bar.  Cary was the only brave soul to share a pic from a Halloween past!  Here are the Dubes:

Honor Roll

  • Karen Allen, Karen Allen Law
  • Matthew Anderson, Pratt Vreelend Kennelly White
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, UIC School of Law
  • Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labor
  • Heather Devine, Tarrant Gillies Shems
  • Cary Dube, Bergeron Fitzpatrick & Paradis
  • Benjamin Gould, Paul Frank + Collins
  • Robert Grundstein
  • Glenn Jarrett, Jarrett/Hoyt
  • Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
  • Jeanne Kennedy, Mother (of the) Blogger, JB Kennedy Associates
  • John T. Leddy, McNeil, Leddy, Sheehan
  • Pam Loginsky, Deputy Prosecuting Attorney, Pierce County, Tacoma, WA
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeffrey Messina, Messina Law
  • Hal Miller, Hawaii Agency Underwriting Counsel, First American Title Insurance
  • Herb Ogden
  • James Remsen, Master Planner, Parker & Hannafin
  • Keith Roberts, Darby Kolter & Roberts
  • Robyn Sweet, Risk Management Specialist, Rutland Regional Medical Center
  • Jason Warfield, J.D.

Answers

Question 1

This week is National Celebrate Pro Bono Week.  Citing one of the 7Cs of Legal Ethics, lawyers often express reluctance to do pro bono work. There’s no need to fear! Indeed, here’s one of the comments to the rule that sets out the duty that lawyers worry that they might violate if they take a pro bono case in a practice area with which they’re not too familiar.  Which C?

  • “A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar.  Some important legal skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study.”

COMPETENCE.  V.R.P.C. 1.1, Cmt. [2].  The VBA offers LOADS of practice area training that is aimed at lawyers looking to do pro bono work.  Much of the training is available via archived video.  For more information, contact Kim Velk or Mary Ashcroft.

Question 2

Which is in a different rule than the others?

  •  A.  Same or substantially related matter.
  •  B.  Materially adverse interests.
  •  C.  Informed consent, confirmed in writing.
  • D.  Remonstrate with the client and, if necessary, take reasonable remedial measures.

Options A, B, C are part of V.R.Pr.C. 1.9(a)’s standard for former client conflicts.  D, the correct answer, is what V.R.Pr.C. requires of a lawyer when the lawyer comes to know the falsity of material evidence offered by the lawyer, the lawyer’s client, or a witness called by the lawyer.

Question 3

There’s a rule that includes an exception for when a person is seeking a second opinion.  The rule addresses _______:

  • A.  conflicts of interest.
  • B.  the situations in which a fee agreement must be reduced to writing.
  • C.  communicating with a represented person.
  • D.  advertising & client solicitation.

V.R.Pr.C. 4.2 prohibits a lawyer from communicating with a represented person on the subject of the representation.  There is an exception when the represented person contacts a lawyer who is not otherwise involved in the matter for a second opinion.

Question 4

Attorney referred Client to Lawyer.  Lawyer completed the representation and billed Client.  Lawyer and Attorney have agreed that, given the referral, Lawyer will share the fee with Attorney.  What else must happen?

  • A.   The overall fee must be reasonable, and client must agree in writing to the division.
  • B.   Lawyer and Attorney must divide the fee in proportion to services rendered, or each must have agreed to accept joint responsibility for the representation.”
  • C.   A & B.  V.R.Pr.C. 1.5(e) and last week’s post Thinking about a referral fee? Think “fee division” instead.
  • D.  Neither A nor B.

Question 5

In 1993, Tom Hanks won the Academy Award for Best Actor for his performance in Philadelphia.  In the movies, Hanks’ character had a lawyer named Joe Miller.  The lawyer attended a Halloween party in which his “costume” was printouts of statutes taped to his work outfit.

The character who played the lawyer had previously won the Academy Award for Best Supporting Actor in a movie set during the Civil War and would later win the Academy Award for Best Actor for his portrayal of an unethical police officer.  In 2018, he was nominated for the Best Actor Oscar for a movie in which he played a lawyer who impermissibly disclosed confidential information related to the representation of a client in order to collect the award for providing information that would lead to the arrest of someone wanted by law enforcement.

Name the actor. Bonus: what was his Halloween costume in Philadelphia?

Denzel Washington played Attorney Joe Miller in Philadelphia.  For Halloween, he was a “law suit.”

Five for Friday #265 (and 5 Halloween Costumes)

Happy Friday!

Many thanks to all who reached out, especially those who made the trip to NYC.  Much appreciated!

So, it’s Halloween weekend. A lazy blogger might use the occasion to publish his third annual ranking of the Halloween candies.[1]

Not me!

Especially since my top 4 remain unchanged – $100 Grand, Peanut Butter Cup, Baby Ruth, Peanut M&M’s – and I don’t want my inbox flooded with messages of abject astonishment that (insert an inferior candy bar here) wasn’t included.

No, instead, I’m marking the holiday with a different type of list: some of my mom’s favorite Halloween pictures of The First Brother and me when we were kids.  Feel free to join the fun by sending pictures Halloween of younger you.  Word to the (un)wise: submissions will be published.

My mom sent me many pics. Those that follow reflect conversations we had about this project, my desire not to have certain images in the public domain, and the fact that I’m the Chief Justice of a one-person court that has ultimate editorial control over these pages.  Without further ado, let’s hop in a time machine and travel to the early 1970s and, for one, the late 60s!

#5

This clown is The First Brother when he was in 1st grade. I include it only to compare to later pictures that will make clear The First Brother’s capacity to pull off a variety of roles.

#4

This is me as a pirate. I was in 3rd grade.  Apparently third graders of the day believed that pirates looked more intimidating when biting their lips.  Also, in that I wore it over my sweater, I assume the vest conveyed some sort of rank among my fellow buccaneers. The sweater must’ve been one of my favorites. I also wore it for that year’s school picture.

#3

This is The First Brother when he was 6.  Are you telling me that detective wasn’t going to solve the case??? Come on! He’s a perfect combination of Hercule Poirot, Inspecter Clouseau, and James Bond.  No wonder he went on to read every book in The Hardy Boys series in a single summer.

#2

This is me when I was 15 months old.  My mom sewed orange crepe paper to my snowsuit and passed me off as a pumpkin. Judging from my expression, I can only surmise I’d just looked in the mirror and noticed the hat.

#1

This is the one that The First Brother and I will always remember. I’m 5, he’s 3.  I’m in a sailor suit that a neighbor had outgrown.  Apparently an oft forgotten aspect of the 70s is the decade’s active secondary market for children’s sailor suits. Anyhow, it’s not me that has this Halloween seared in our memories. 

My brother is wearing his green snowsuit.  It was actually green, no crepe paper required. My mother wrote “spinach” on his forehead. 

We trick-or-treated as Popeye and his trusty can of spinach.

Happy Halloween! 

Onto the quiz!

Rules

  • None.  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

This week is National Celebrate Pro Bono Week.  Citing one of the 7Cs of Legal Ethics, lawyers often express reluctance to do pro bono work. There’s no need to fear! Indeed, here’s one of the comments to the rule that sets out the duty that lawyers worry that they might violate if they take a pro bono case in a practice area with which they’re not too familiar.  Which C?

  • “A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar.  Some important legal skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study.”

Question 2

Which is in a different rule than the others?

  •  A.  Same or substantially related matter.
  •  B.  Materially adverse interests.
  •  C.  Informed consent, confirmed in writing.
  • D.  Remonstrate with the client and, if necessary, take reasonable remedial measures.

Question 3

There’s a rule that includes an exception for when a person is seeking a second opinion.  The rule addresses _______:

  • A.  conflicts of interest.
  • B.  the situations in which a fee agreement must be reduced to writing.
  • C.  communicating with a represented person.
  • D.  advertising & client solicitation.

Question 4

Attorney referred Client to Lawyer.  Lawyer completed the representation and billed Client.  Lawyer and Attorney have agreed that, given the referral, Lawyer will share the fee with Attorney.  What else must happen?

  • A.   The overall fee must be reasonable, and client must agree in writing to the division.
  • B.   Lawyer and Attorney must divide the fee in proportion to services rendered, or each must have agreed to accept joint responsibility for the representation.”
  • C.   A & B.
  • D.  Neither A nor B.

Question 5

My first year in a law school, one of my friends showed up for a Halloween party. As best as I could figure, he was dressed as a Victoria’s Secret model. Then, he explained it to me. He’d written “Id,” “Ego,” and “Superego” on his garment. He was a Freudian Slip.

In 1993, Tom Hanks won the Academy Award for Best Actor for his performance in Philadelphia.  In the movies, Hanks’ character had a lawyer named Joe Miller.  The lawyer attended a Halloween party in which his “costume” was printouts of statutes taped to his work outfit.

The character who played the lawyer had previously won the Academy Award for Best Supporting Actor in a movie set during the Civil War and would later win the Academy Award for Best Actor for his portrayal of an unethical police officer.  In 2018, he was nominated for the Best Actor Oscar for a movie in which he played a lawyer who impermissibly disclosed confidential information related to the representation of a client in order to collect the award for providing information that would lead to the arrest of someone wanted by law enforcement.

Name the actor. BONUS – what was his Halloween costume in Philadelphia? The one where he taped printouts of statutes to clothes.


[1] 2020’s flawed rankings are here.  2021’s atonement is here.

Thinking about a referral fee? Think “fee sharing” instead.

Every now and then lawyers make comments that remind me that there are common misconceptions about some of the Vermont Rules of Professional Conduct.  In turn, the reminders remind me to send out reminders. 

Here’s a reminder on referral fees: as I read Vermont’s rules, straight referral fees are prohibited.

First, V.R.Pr.C. 7.2(b) prohibits a lawyer from “giving anything of value to a person for recommending the lawyer’s services.”  While paragraph (b)(4) authorizes lawyers to make referrals and enter into reciprocal referral arrangements, Comment [8] states that:

  • “[e]xcept as provided in Rule 1.5(e), a lawyer who receives referrals from a lawyer or nonlawyer must not pay anything solely for the referral . . .” (emphasis added).

That’s not necessarily the end.

V.R.Pr.C. 1.5(e) authorizes lawyers who are not in the same firm to share fees if certain requirements are met.  Two requirements are simple:

  • The overall fee must be reasonable; and,
  • The client must agree in writing to the division of the fee.

The final requirement is a bit trickier, but not too difficult.  Fee sharing is only allowed:

  • in proportion to the services that each lawyer performs, OR,
  • each lawyer assumes joint responsibility for the representation.

With respect to the latter, here’s Comment [7] is instructive and includes this statement:

  • “Joint responsibility for the representation entails financial and ethical responsibility for the representation as if the lawyers were associated in a partnership.”

In April 2016, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 474.  The opinion reaches the same conclusion about the Model Rule as I have about Vermont’s and also endeavors to shed some light on “joint responsibility for the representation.”  The ABA Journal summarized Formal Opinion 474 here.

Finally, Comment [8] clarifies that the rule “does not prohibit or regulate division of fees to be received in the future for work done when lawyers were previously associated in a law firm.”

As always, let’s be careful out there.

Related Posts:

Wellness Wednesday: Pro Bono

Today is not simply “Wellness Wednesday.” It’s WW of National Celebrate Pro Bono Week! What’s wellness got to do with pro bono?  I’m glad you asked!

Eileen Blackwood is a former president of the Vermont Bar Association and former chair of the VBA’s Pro Bono Committee. Twice a year, Eileen and I present a seminar for new lawyers.  I open by discussing professional responsibility, then Eileen Blackwood homes in on the pro bono opportunities.  Over the past few presentations, we’ve used “wellness” as segue from my presentation to Eileen’s.  Specifically, Eileen has made it a point to mention that one of the most rewarding cases of her career was one that she took pro bono.  While Eileen says it better than I can, the reward is the positive feeling that comes from having helped someone who desperately needed it.

Wellness indeed!

With that said, here are answers to common questions about pro bono & professional responsibility.

Where is/are the rule(s)?

The Vermont Rules of Professional Conduct include a section titled “PUBLIC SERVICE” that spans Rules 6.1 thru 6.5. 

What is the rule?

It’s V.R.Pr.C. 6.1.

How many hours?

Here are the first two lines of V.R.Pr.C. 6.1:

  • “Every lawyer has a professional responsibility to provide legal services to those unable to pay.  A lawyer should render at least 50 hours of pro bono publico legal services per year.  

Do all 50 of my hours have to be pro bono, or does low bono count too?

V.R.Pr.C. 6.1 states that in fulfilling the 50 hours, lawyer should

  • “(a) provide a substantial majority of the 50 hours without fee or expectation of fee to (1) persons of limited means; or (2) charitable, religious, civic, community, governmental, and educational organizations in matters which are designed primarily to address the needs of people with limited means.”

Once at a “substantial majority” of 50 hours, the rule goes on to indicate that a lawyer may provide any additional services by:

  • Delivery of legal services at no fee or a substantially reduced fee to certain types of individuals, groups and organizations.
  • Delivery of legal services to persons of limited means.
  • Participating in activities that are meant to improve the law, the legal system, or the legal provision.

Who qualifies as a “person of limited means?”

  • See, Rule 6.1, Comment [3] (“Persons eligible for legal services under paragraphs (a)(1) and (2) are those who qualify for participation in programs funded by the Legal Services Corporation and those whose incomes and financial resources are slightly above the guidelines used by such organizations but nevertheless cannot afford counsel.”

My client didn’t pay, that’s pro bono, right?

  • Wrong.  Rule 6.1(a) is clear:  a “lawyer should provide substantial majority of the 50 hours of legal services without fee or expectation of fee . . ..”
  • Comment [4] drives home the point: “Because services must be provided without fee or expectation of fee, the intent of the lawyer to render free legal services is essential for the work performed to fall within the meaning of paragraphs (a)(1) and (2).  Accordingly, services rendered cannot be considered pro bono if an anticipated fee is uncollected . . ..”

I’m a government attorney, so I don’t have to do pro bono, right?

  • Wrong.  Rule 6.1 applies to all lawyers.  Comment [5], however, recognizes that government lawyers may not be able to satisfy the requirements of Rule 6.1(a) and, therefore, should be allowed to satisfy the pro bono requirement via provision of services set out in Rule 6.1(b).

Ok Mike, I’m doing pro bono work, what other rules apply?

  • ALL OF THEM!  You must be competent & diligent.  You can’t communicate with a represented party on the subject of the representation without counsel’s consent.  You can’t lie.  In short, pro bono work is not a license to act unethically.

Mike, you mentioned competence.  Given my practice area, I don’t know much about the areas of law in which there’s a need for pro bono work. Is that a problem?

Not necessarily.  V.R.Pr.C. 1.1 mandates competence. However, here is Comment [2]:

  • “A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar.  Some important legal skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer of established competence in the field in question.”

The VBA often puts on trainings in areas more likely to involve pro bono work.  Many of those trainings are available in the VBA’s video library. For more information, contact Kim Velk.

Specifically referencing the Public Service rules, Comment [4] adds:

  • “A lawyer may accept representation where the requisite level of competence can be achieved by reasonable preparation.  This applies as well to a lawyer who is appointed as counsel for an unrepresented person.  See also Rule 6.2.”

What about the conflict rules?

If certain conditions are met, the conflict rules are relaxed.  See, V.R.Pr.C. 6.5.  Those conditions are:

  • The lawyer provides short-term limited legal services,
  • under the auspices of a program sponsored by a nonprofit organization or court, and
  • without expectation by the lawyer or the client that the lawyer will provide continuing representation in the matter.

If each condition is present, the conflicts rules apply only if the lawyer KNOWS of a conflict.  In other words, if the 3 conditions are met, a lawyer does not have to do a conflict check before providing the legal services.  See, V.R.Pr.C. 6.5, Comment [1] (“Such programs are normally operated under circumstances in which it is not feasible for a lawyer to systematically screen for conflicts of interest as is generally required before undertaking a representation.”

Paragraph (b) makes clear that if a lawyer who provides legal services under the specified conditions, any conflict that might result as a result of the short-term representation will not be imputed to other lawyers in the pro bono lawyer’s firm.

How can I learn about pro bono opportunities?

Mary Ashcroft is the Vermont Bar Association’s Legal Access Coordinator and is an excellent resource.  Also, here’s a list of pro & low bono programs.  Pressed for time?  Vermont Free Legal Answers is a way to provide pro bono assistance without leaving your home or office.  Finally, Sam Abel-Palmer is the Executive Director of Legal Services of Vermont.   LSV collaborates with the VBA to run the Vermont Volunteer Lawyers Project.

Thank you for considering pro bono.  And remember, it can be a source of wellness, for both you and the client.

Previous Wellness Wednesday Posts

Monday Morning Honors #264

Happy Monday.

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

Honor Roll

Answers

Question 1

Next week is National Celebrate Pro Bono Week.  The Rules of Professional Conduct include a series of rules that address pro bono work.  One of those rules makes clear that other rules are somewhat relaxed for lawyers who, with no expectation of continued representation, offer short-term legal services at programs sponsored by a court or non-profit.

What’s the topic of the rules that are somewhat relaxed?

CONFLICTS.  V.R.Pr.C. 6.5:

(a) A lawyer who, under the auspices of a program sponsored by a nonprofit organization or court, provides short-term limited legal services to a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter:

  • is subject to Rules 1.7 and 1.9(a) only if the lawyer knows that the representation of the client involves a conflict of interest; and

(2) is subject to Rule 1.10 only if the lawyer knows that another lawyer associated with the lawyer in a law firm is disqualified by Rule 1.7 or 1.9(a) with respect to the matter.

(b) Except as provided in paragraph (a)(2), Rule 1.10 is inapplicable to a representation governed by this rule.”

PS: for information on how to participate in pro & low bono programs, go here or email Mary Ashcroft, the VBA’s wonderful Legal Access Coordinator.  Mary has announced her retirement.  Mary – thank you for you all that you’ve done for Vermonters and to increase access to both justice and legal services!

Question 2

Here’s language from the comment to a rule.  Fill in the blank. Hint: it’s 4 words, one of which is one of the 7Cs of Legal Ethics.

“In such situations, the advocate’s proper course is to remonstrate with the client confidentially, advise the client of the lawyer’s duty of CANDOR TO A TRIBUNAL and seek the client’s cooperation with respect to the withdrawal or correction of the false statements or evidence.”

See, V.R.Pr.C. 3.3, Cmt. [10].

Question 3

By rule, what is required to be “communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation?”

  • A.   Whether the lawyer has malpractice insurance and, if so, the policy limits.
  • B.   Whether the lawyer has designated a successor to review and triage files if the lawyer becomes incapacitated during the representation.
  • C.   The basis or rate of the lawyer’s fee, and expenses for which the client will be responsible, except when the lawyer will charge a regularly represented client on the same basis or rate. V.R.Pr.C. 1.5(b).
  • D.  All the above.

Question 4

A dispute involving New York’s version of a rule made national headlines this week, even bringing legal ethics to the sports pages.  Here’s a comment to Vermont’s version of the rule.  The SAME word correctly fills in each blank.  What word?

“In the case of a represented__________, this rule prohibits communications with a constituent of the _________  who supervises, directs or regularly consults with the __________’s lawyer concerning the matter or has authority to obligate the __________ with respect to the matter or whose act or omission in connection with the matter may be imputed to the ________ for purposes of civil or criminal liability.”

“ORGANIZATION.” See, V.R.Pr.C. 4.2, Cmt. [7]. And this blog post.

Question 5

In 2015, the Wisconsin Supreme Court suspended a lawyer for 60 days for misconduct that occurred while the lawyer was representing a client who hired the lawyer to assist in recovering money spent on John Lennon memorabilia that turned out to be fake.

Four years earlier, in an article about a different client, the Milwaukee Journal Sentinel quoted the lawyer as referring to a deceased former client as “an aberration of a human being that comes around about once every 50 years and does a hell of a lot of damage.” According to the paper, the lawyer added that the deceased former client was “the wimpiest guy I ever met.”

In 1992, and before the client died in prison, a jury rejected the lawyer’s evidence and argument that the client was insane at the time of the client’s depraved and horrific crime spree that spanned more than a decade.

The deceased client is the subject of two relatively new Netflix productions. One, a documentary, is the 4th most watched show on Netflix this month. The other, a dramatized version of the client’s crimes and trial, is the 2nd most watched. Variety reported that in the week that followed the dramatized version’s September release, the show “was the 10th most-streamed program ever recorded in a single week in Nielsen history.”

Honestly, watching the dramatized version, I was so repulsed/disturbed/scared that I had trouble making it through the opening scene.

Name the deceased former client.

Jeffrey Dahmer.   

Five for Friday #264

Welcome to Friday and the 264th legal ethics quiz.

Earlier this week I pondered whether today’s intro might reference the NCAA basketball tournament. As any fan of or participant in March Madness likely knows, there are always 64 teams in the “bracket.” Indeed, who can forget 2020, when 48 concepts involving legal ethics and professional responsibility joined 16 quotes from My Cousin Vinny in this blog’s “Professional Responsibility Madness” bracket. Vermont’s legal profession voted out a Final Four that looked like this:

Anyhow, in the tournament, 64 teams are divided into four “regions.”  Each region has 16 teams, with the teams seeded 1 thru 16 according to perceived strength. Much of the discussion in the weeks leading up to the tournament focuses on predicting which teams will receive the coveted top seed in each bracket.

With that as a backdrop, as this week went on, I noticed an uptick in news of the bizarre coming from the world of legal ethics and professional responsibility. Here are four stories from the past week alone:

  • The Ohio judge who was indefinitely suspended for, among (many) other things, conducting “business in a manner befitting of a game show host.”  Above The Law has the story here. Having read the opinion, I wonder whether game show hosts will object to the comparison. 
  • The lawyer who, as reported by the Portland Press Herald, was sanctioned for having a sexual relationship with a client AND for certifying that that he had done CLE when, in fact, his employee had done it for him.
  • As reported by The Volokh Conspiracy, the lawyer who was sanctioned for plagiarizing opposing counsel’s (!!) motion! Yes, you read that correctly.  Here is the court’s opinion in response to a motion for sanctions. The first two lines cut straight to the chase.
  • The Legal Profession Blog has the story of a Kansas lawyer who accepted title to a client’s motorcycle as security for payment of legal fees.  The client, S.R., didn’t pay and didn’t deliver the motorcycle when asked to do so by the lawyer. As for what happened next, here’s an excerpt from the Kansas Supreme Court order suspending the lawyer’s license: “Respondent wrongfully reported to law enforcement that S.R. had stolen Respondent’s motorcycle. Respondent knew, or should have known, this misleading report could have provided the district court grounds to revoke S.R.’s probation (which Respondent previously negotiated on behalf of S.R.) and to sentence S.R. to a term of imprisonment.”

If we were having a Was That Wrong? tournament, each of these stories would be a contender for a regional top seed and the championship itself.

Sadly, if I had put some effort into this, I probably could’ve created a bracket that made it to sixty-four.

And since this is a quiz introduction, I prefer the phonetic version of the previous sentence:

“Sadly, if I had put some effort into this, I probably could’ve created a bracket that made it 2 64.”

As always, let’s be careful out there.

Onto the quiz!

Rules

  • None.  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

Next week is National Celebrate Pro Bono Week.  The Rules of Professional Conduct include a series of rules that address pro bono work.  One of those rules makes clear that other rules are somewhat relaxed for lawyers who, with no expectation of continued representation, offer short-term legal services at programs sponsored by a court or non-profit.

What’s the topic of the rules that are somewhat relaxed?

PS: for information on how to participate in pro & low bono programs, go here or email Mary Ashcroft, the VBA’s wonderful Legal Access Coordinator.  Mary has announced her retirement.  Mary – thank you for you all that you’ve done for Vermonters and to increase access to both justice and legal services!

Question 2

Here’s language from the comment to a rule.  Fill in the blank. Hint: it’s 4 words, one of which is one of the 7Cs of Legal Ethics.

“In such situations, the advocate’s proper course is to remonstrate with the client confidentially, advise the client of the lawyer’s duty of ____________ and seek the client’s cooperation with respect to the withdrawal or correction of the false statements or evidence.”

Question 3

By rule, what is required to be “communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation?”

  • A.   Whether the lawyer has malpractice insurance and, if so, the policy limits.
  • B.   Whether the lawyer has designated a successor to review and triage files if the lawyer becomes incapacitated during the representation.
  • C.   The basis or rate of the lawyer’s fee, and expenses for which the client will be responsible, except when the lawyer will charge a regularly represented client on the same basis or rate.
  • D.  All the above.

Question 4

A dispute involving New York’s version of a rule made national headlines this week, even bringing legal ethics to the sports pages.  Here’s a comment to Vermont’s version of the rule.  The SAME word correctly fills in each blank.  What word?

“In the case of a represented__________, this rule prohibits communications with a constituent of the _________  who supervises, directs or regularly consults with the __________’s lawyer concerning the matter or has authority to obligate the __________ with respect to the matter or whose act or omission in connection with the matter may be imputed to the ________ for purposes of civil or criminal liability.”

Question 5

In 2015, the Wisconsin Supreme Court suspended a lawyer for 60 days for misconduct that occurred while the lawyer was representing a client who hired the lawyer to assist in recovering money spent on John Lennon memorabilia that turned out to be fake.

Four years earlier, in an article about a different client, the Milwaukee Journal Sentinel quoted the lawyer as referring to a deceased former client as “an aberration of a human being that comes around about once every 50 years and does a hell of a lot of damage.” According to the paper, the lawyer added that the deceased former client was “the wimpiest guy I ever met.”

In 1992, and before the client died in prison, a jury rejected the lawyer’s evidence and argument that the client was insane at the time of the client’s depraved and horrific crime spree that spanned more than a decade.

The deceased client is the subject of two relatively new Netflix productions. One, a documentary, is the 4th most watched show on Netflix this month. The other, a dramatized version of the client’s crimes and trial, is the 2nd most watched. Variety reported that in the week that followed the dramatized version’s September release, the show “was the 10th most-streamed program ever recorded in a single week in Nielsen history.”

Honestly, watching the dramatized version, the opening scene so disturbed/scared me, that I had trouble making it through.

Name the deceased former client.

The no-contact rule, represented organizations, and . . . basketball?

The extent to which the no-contact rule applies to a represented organization comes up often in inquires and at CLEs.[1] As you might guess, it rarely comes up when I’m thinking about basketball. 

Until now.

Larry Hutcher is a lawyer at Davidoff Hutcher & Citron, a firm that has an office in Manhattan. Hutcher is lead counsel for 24 ticket resellers who, last month, sued Madison Square Garden Entertainment Corporation (MSG). Once the suit was filed, MSG sent the firm a letter banning its lawyers from attending events at properties owned by MSG. Those properties include Madison Square Garden.

Since 1976, Hutcher has had New York Knicks season tickets. The Knicks play their home games at, you guessed it, Madison Square Garden. In addition to banning Hutcher and his co-workers from MSG properties, MSG allegedly revoked his season tickets.

Last week, Hutcher sued MSG on behalf of himself and his firm. Among other things, Hutcher seeks reinstatement of his season tickets and restoration of access to MSG properties.  Outlets that reported the story include Forbes, the New York Times, the New York Post, ESPN, and the ABA Journal.

It was the ABA Journal headline that caught my eye:

“Madison Square Garden misinterpreted ethics rules when it banned firm’s lawyers, suit says”

On occasion, I’ve heard of lawyers who represent Vermont organizations instructing opposing counsel not to communicate with any of the organization’s employees. Here’s Comment [7] to V.R.Pr.C. 4.2:

  • “In the case of a represented organization, this rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. Consent of the organization’s lawyer is not required for communication with a former constituent. If a constituent of the organization is represented in the matter by his or her own counsel, the consent by that counsel to a communication will be sufficient for purposes of this rule. Compare Rule 3.4(f). In communicating with a current or former constituent of an organization, a lawyer must not use methods of obtaining evidence that violate the legal rights of the organization. See Rule 4.4.”

I’ll leave it to readers to decide what the first sentence means.

In the meantime, as both a lawyer, bar counsel, and an avid sports fan who understands the complicated relationship between a fan and their favorite team, I enjoyed many aspects Hutcher’s complaint.  The first paragraph of the “preliminary statement” describes the stakes:

PRELIMINARY STATEMENT

“Power tends to corrupt, and absolute power corrupts absolutely.” – Lord Acton 1.

  1. The ability to single-handedly control two hallowed sports franchises and numerous iconic venues including Madison Square Garden and Radio City Music Hall affords great power. However, when that power is used in a vindictive, arbitrary and capricious manner to settle petty grievances, perceived slights, and to exact revenge then the Court, through the exercise of its equitable intercession, must intercede

A few paragraphs later, Hutcher appealed to Younger Me, a long-suffering Red Sox fan:[2]

“7. Hutcher, a lifelong Knick fan, has remained a loyal season ticket holder since 1976 – almost 50 years. Even though he faithfully renewed this subscription to his great expense through zero championships, long playoff droughts, postseason failures, and coaching musical chairs he was still summarily discarded by MSG without warning solely because he fulfilled his ethical duties to his clients.”

Finally, Hutcher spoke to me as bar counsel.

“Rule 4.2 is meant to ensure that there is no contact between represented parties by counsel relating only to the ‘subject of the litigation. Certainly, there are only very few employees of MSG in a position to discuss the ‘subject of the litigation ‘with any of the individual plaintiffs. In essence, MSG feigns concern over the unlikely scenario that any individual plaintiff will discuss ‘the substance of the litigation’ with such an MSG employee while watching a Knicks game or attending a concert. This is absurd and is nothing more than a flimsy unsupportable pretext to justify the infantile behavior of MSG’s principals.”

He went on:

“Furthermore, Rule 4.2, when applied to corporate organizations, only affects limited categories of corporate employees and not all employees as MSG disingenuously implies in its notice. As described in more detail below, the affected MSG employee must be someone with the authority to bind MSG to a decision that will impact the subject litigation. How many MSG employees fall into this limited category? The odds of an individual plaintiff discussing the subject of the litigation with that MSG employee are astronomical. There are better odds of being struck by lightning or the Knicks winning the NBA championship this year.”

I don’t know how the court will rule, nor would it be appropriate for me to state my opinion as to whether or how New York’s version of Rule 4.2 applies. However, I’m quite comfortable announcing that I agree with Hutcher that the Knicks aren’t going to win the title this season.

The Knicks’ home opener is tomorrow night.  Will the court rule in time for Hutcher to attend?  Stay tuned!

Related Posts

Disciplinary opinion from Indiana provides helpful reminder on the scope of the no-contact rule


[1] V.R.Pr.C. 4.2 states “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.”

[2] Current Me has enjoyed the 4 World Series Champions that Boston has won since 2004. And, sorry Knicks fans, but as a Celtics fan, 17 NBA Titles leave me unable to know how you feel.

News report reminds me of my lone experience with a lawyer trying to remove a disciplinary case to federal court.

Yesterday, Reuters reported on the story of a former Justice Department lawyer who is the subject of a disciplinary prosecution in the District of Columbia.  Regulators charged the lawyer with violations related to President Trump’s efforts to overturn the 2020 election.  According to the report, the lawyer asked a federal court to block the disciplinary proceeding, arguing that “‘no state possesses the power to supervise the internal operations and deliberations of any branch of the federal government’” and that the disciplinary case is a “‘direct attack on the fundamental principle of separation of powers.’”

This morning, a Vermont lawyer asked whether anyone I prosecuted when I was disciplinary counsel ever made a similar request of the United States District Court for the District of Vermont.  I don’t remember ever investigating a complaint against a lawyer for the federal government. Even if I did, I am 100% certain that I never filed formal disciplinary charges against a lawyer for the federal government. So, my answer was “no.”

Still, the news item reminded me of my lone foray federal court as disciplinary counsel.[1] The main reason I’m sharing the story of the foray is to satisfy my inner ethics nerd with a post on the law that governs the removal of disciplinary matters to federal court. I’m also sharing on the remote chance that a few of the nuggets have broader value and might help any practitioner who considers or confronts removal.

For those of you still interested, I’ll begin with this hypo:

  • Disciplinary prosecutors charge a lawyer with violating the Vermont Rules of Professional Conduct.
  • The lawyer removes the disciplinary case to federal court.[2]
  • What happens?

Here’s what happened in my case.

In what now feels like a lifetime ago, I filed disciplinary charges against a lawyer.  The lawyer removed the case to federal court. Because I’m not going to identify the lawyer, I won’t go into much detail about the lawyer’s argument.  Suffice to say, the lawyer’s position was that the disciplinary charges violated the lawyer’s rights under the United States Constitution and other federal law and, therefore, vested the federal court with jurisdiction.  I disagreed and filed a motion to remand.[3]

That’s where the first wrinkle arose.

In Vermont, disciplinary cases are tried before “hearing panels.”  By rule, each panel includes three people.  Two must be lawyers, one must not be a lawyer.  In my case, the panel was ready to go.  Apparently undeterred by the “removal,” the panel scheduled a hearing. 

Alas, 28 U.S. Code § 1446(d) states:

  • “Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.”

So, proceedings before the panel stopped pending the District Court’s decision on my motion to remand.

I made three arguments in support of my motion:

  1. A disciplinary case is not subject to the federal removal statute.
  2. The lawyer waited too long to remove the case.
  3. There were no grounds for federal jurisdiction.[4]

The District Court agreed with the first argument.[5]  It also agreed with the second. [6]  Neither of these arguments is particularly interesting, although the second is worth reviewing for any practitioner who thinks that the failure to meet the removal deadline is a curable defect. Even though it agreed with the first two arguments, the District Court addressed the third. The law associated with the argument interests me. 

Generally, a civil action brought in state court may be removed if the federal court would have had original jurisdiction.[7] I argued that the disciplinary case was based on the Vermont Supreme Court’s rules and had nothing to do with federal law. The lawyer countered that the matter presented a federal question over which the court had jurisdiction. That is, that the charges themselves violated the lawyer’s rights under the U.S. Constitution and federal law.[8]

The District Court found that the disciplinary matter was filed pursuant to the Vermont Supreme Court’s rules establishing the Professional Responsibility Program and “did not make any reference to federal law.” The Court further noted that:

  • “Questions of federal law first entered into this case through [the lawyer’s] counterclaims to the Petition.  The [United States] Supreme Court has made clear, however, that ‘a counterclaim – which appears as part of the defendant’s answer, not as part of the plaintiff’s complaint– cannot serve as the basis for ‘arising under’ jurisdiction.”

Thus, the District Court concluded that jurisdiction was not proper. Therefore, it remanded the matter to the hearing panel.  In so doing, the court added that:

  • “As the Second Circuit has observed, ‘the integrity of the bar is of public concern and the state which licenses those who practice in its courts, and which is the only body that can impose sanctions upon those admitted to practice in its courts, should not be deterred or diverted from the venture by the interloping of a federal court.’”  (citation omitted).

Trust me, I never once suggested that the United States District Court was “interloping.”

Anyhow, that was my only foray into federal court as disciplinary or bar counsel.  Thanks for indulging me.


[1] It also reminded me of story from my days as an AAG that I’ll share in a separate post.

[2] See, 28 U.S. Code § 1441 et seq. In some situations, the law allows a person who is sued in state court to “remove” the case to federal court. In other words, to have the case adjudicated by a federal court instead of by the state court in which the person who sued originally filed the action. 

[3] The “removal” statute allows the person who filed suit in state court to ask the federal court to “remand” the matter back to state court.

[4] Federal district courts are courts of “limited jurisdiction.”  This means that the courts are only authorized to resolve specific types of claims.  For more, see this primer from the Department of Justice.

[5]28 U.S. Code § 1441(a) authorizes removal of “civil” actions.  In Vermont, “disciplinary proceedings are neither civil nor criminal but are sui generis.”  Vermont Supreme Court Administrative Order 9, Rule 20.B. Rule Citing to this rule, the District Court concluded that removal was not available.

[6] 28 U.S. Code § 1446(b) (1) requires a defendant to remove an action within 30 days of receipt of the initial pleading. In my case, the lawyer waited 34 days.  Nevertheless, the District Court concluded that the lawyer waited too long. Here’s the relevant excerpt, with citations omitted: “The thirty-day deadline for removal is ‘rigorously’ enforced. If there is a defect in the removal procedure, courts are authorized to remand a case to the state court in which the action originated.  While a procedural defect in removal does not deprive a federal court of jurisdiction, all doubts as to the procedural validity of removal will be resolved in favor of remand.  There is nothing in the removal statute that suggests that a district court has ‘discretion’ to overlook or excuse prescribed procedures.”

[7] 28 U.S. Code § 1441(a).

[8] The lawyer invoked 28 U.S. Code § 1331: “The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.

Five for Friday #263

Welcome to Friday and the 263rd #fiveforfriday legal ethics quiz!

According to the National Day Calendar, October 14 is national Be Bald & Be Free Day. It has me conflicted. 

On the one hand, lately, I’ve been leaning towards growing my hair out.  

(Actually, cognizant of a lawyer’s duty of candor, let me rephrase that. I meant to say that “lately, I’ve been leaning towards not shaving my head as often as usual.  Whether the result can fairly & honestly be described as ‘growing my hair out,’ who knows?”)

Anyhow, I usually shave the noggin every 8 or 9 days. It’s been 3 weeks. Long enough for my eyes to try to convince my brain that “our curls are coming back!” Also, I’m somewhat curious as to how much of what returns will be grey.

On the other hand, I’m incredibly superstitious. Just yesterday I’d resolved to keep the clippers in the drawer for the foreseeable future.  What, then, are the odds that on the very next morning I’d learn that it’s National Be Bald & Be Free Day???

For now, I shall use “Be Bald” day to mull how bald to be.  As for the “Be Free” part of the celebration, I imagine little could be more freeing to readers than the end of this introduction.

Onto the quiz!

Rules

  • None.  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

If the Rules of Professional Conduct require a lawyer to receive a client’s agreement (or informed consent) to do something in writing, does an email from the client satisfy the rule?

  • A. Yes.
  • B. No.

Question 2

Here’s an excerpt from a comment to one of the rules.  The same word goes in each blank.  What word? 

Action by a lawyer:

“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 either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law.”

Question 3

At a CLE, what topic am I most likely addressing when I discuss “3-way reconciliation.”

  • A. Conflicts that arise when representing both buyer & seller in the same transaction.
  • B. Conflicts that arise for lawyers who serves as “third party neutrals.”
  • C. Trust Account Management.
  • D. Ethics issues that arise when the prosecution, the lawyer for the defendant, and an advocate for the victim negotiate resolution of a criminal matter.

Question 4

I often caution lawyers against “noisy withdrawal.”  Which of the 7Cs of Legal Ethics is most closely associated with “noisy” withdrawal?

Question 5

In 1984, Vanity Fair asked a mega-famous artist to create an image of a mega-famous musician. The magazine gave the artist a photograph to use as a reference.  The artist used the photograph to create images of the musician in the same style as images the artist had previously created of Marilyn Monroe, Jacqueline Kennedy, and Mao Zedong. 

In 2016, Vanity Fair ran one of the mega-famous artist’s images on the cover of an issue commemorating the mega-famous musician’s death. This resulted in a copyright dispute involving the artist’s foundation and the photographer who took the original photograph that had served as a reference for the artist’s images.

This week, the United States Supreme Court heard argument in the matter. According to multiple news outlets, the argument included a light moment that prompted much laughter. Justice Thomas began a question by indicating that he was fan of the mega-famous musician in the 80s.  Justice Kagan asked, “but no longer?”  Justice Thomas replied, “Only on Thursdays.”

Name the artist and the musician.