Five for Friday #91: Nirvana v. Pearl Jam

91.

As most of you know, I like to use the intro to the #fiveforfriday quiz to connect the quiz number to pop culture.  Intros related to music have proven the most popular.

Earlier this summer, I used this space to argue Stones vs. Beatles.  My readers, as it turns out, are Beatles fans. One reader, however, persuasively argued that the choice isn’t binary – that one can be a fan of each band. It’s with that thought in mind that I approach this week’s intro.

In ’91, Pearl Jam released Ten and Nirvana released Nevermind.  Ten was released first, but went relatively unnoticed until the music world eagerly sought out anything related to the Seattle-sound in the wake of the enormous popularity of Nevermind.

For whatever reason, I’ve always considered Nirvana v. Pearl Jam to require a choice. In other words, it’s binary.  This summer I was hanging out with one of my cousins and a very good friend.  A Pearl Jam song came on.  My friend mentioned that he liked Pearl Jam better than Nirvana. I asked why.  He said he wasn’t really sure, other than “I felt like you had to choose one.”

But, I’m wondering, is the choice binary?

I used to subscribe to Rolling Stone.  Believe it or not, I still have 5 old issues.  Here’s a picture of 2 that I saved:

Grunge

I read them last night.  Looking back, to the extent the choice became binary, Kurt Cobain made it so.  It’s as if he demanded that fans choose.

Who’d you choose?

Full disclosure, and All Apologies, I chose Pearl Jam.  I don’t dislike Nirvana, and the older I get the more I appreciate them.  But I prefer Pearl Jam.  Very simply, I like their music better. Also, two of my closest friends in law school had gone to undergrad at UW and, in 90 & 91, got me interested in Mother Love Bone, the band from which Pearl Jam directly descended.

(Not to mention, one might argue that Pearl Jam is a basketball band.  Before it became PJ, the band was briefly known as Mookie Blaylockin honor of the great Oklahoma point guard.  “Ten” is a reference to Mookie’s jersey number.  Jeff Ament was a damned good basketball player and huge hoops fan. Made the choice easy for me!)

That being said, as I read last night, I played Nevermind.   It’s stunningly good.  Lithium is one of my favorite songs.  As great as it is, Rolling Stone ranks it only Nirvana’s 7th best, and 4th best on its album! I’d say Nirvana satisfied the duty of competence with Nevermind.

Finally, something struck me as I read this Rolling Stone piece on Cobain.  Heroin led to his death.  Further, per the article, a few years before he died, Cobain and wife Courtney Love’s drug use factored into California’s child protection authorities temporarily taking custody of their daughter.

Here’s what struck me: I had just returned home from a Vermont Bar Foundation event at which the Poverty Law Fellow, Mairead O’Reilly, talked about the fantastic work she’s doing on the impact that opioids are having on Vermonters and the Vermont judiciary.  I realized that nearly 25 years after one of the world’s biggest rock stars lost custody of his daughter and committed suicide due to problems stemming from heroin use, we are still struggling to cope with the epidemic.

We need to do better.

Ironically, Pearl Jam might not exist but for heroin.  The band was formed only after Mother Love Bone lead singer Andrew Wood died of an overdose.  His death also led to the formation of Temple of the Dog, the band that made one of my favorite songs of the so-called Grunge era: Hunger Strike.  Sadly, the driving force beyond Temple of the Dog, Soundgarden’s Chris Cornell, took his own life earlier this year.  It wasn’t a heroin overdose.  Still, he’d apparently struggled with substance abuse for years.

We need to do better getting help to those in need, no matter the reason that they need help.

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 don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

Jeremy approaches Lawyer for representation in a matter in which Lawyer has no real experience.  True or false:  the rule that imposes a duty of competence prohibits Lawyer from representing Jeremy.

Question 2

Attorney represents Dissident.  The State has charged Dissident with assaulting an Elderly Woman Behind A Counter In Small Town.  Attorney and Dissident remain Oceans apart on how to handle the defense, with Dissident upset that Attorney repeatedly says “you’re lucky she’s still Alive.”  For purposes of the Rules of Professional Conduct, which is different from the others?

  • A.   The plea that Dissident will enter.
  • B.   Whether to cross-examine Elderly Woman (if she testifies)
  • C.   Whether Dissident will waive a jury trial.
  • D.   Whether Dissident will testify.

Question 3

Daughter retains Lawyer.  Daughter agrees to pay an hourly fee for work performed.  Which is most accurate?

  • A.  The fee agreement must be reduced to writing.
  • B.  The fee agreement must be reduced to writing within a reasonable time.
  • C.  The fee agreement must be reduced to a writing that is signed by the client.
  • D.  The rules do not require the fee agreement to be reduced to writing.

Question 4

Attorney works at Big Firm.  Partners & Associates are departing like Rats fleeing a sinking ship.  So, Attorney decides to leave life at Big Firm in the RearviewMirror and opens a solo shop. There is a rule that imposes a duty of diligence.  A comment to the rule suggests that, as a solo, Attorney might have a duty:

  • A.  To prepare a succession plan.
  • B.  To remain abreast of developments in technology.
  • C.  To utilize a cloud-based practice management system.
  • D.  To retain or associate with a non-lawyer assistant trained in bookkeeping & trust accounting

Question 5

In 1994, Pearl Jam filed a complaint with the Department of Justice.  In a cover story, Time magazine referred to the complaint as “Rock’n Roll’s Legal Battle of the Century.” The battle eventually led to band members Stone Gossard and Jeff Ament testifying before Congress.

What was the subject of Pearl Jam’s complaint?

  • A.  An alleged monopoly resulting from Ticketmaster’s purchase of Ticketron
  • B.  An alleged monopoly resulting from Clear Channel buying up local radio stations
  • C.  Royalties & Columbia House’s 8 for the Price of 1 deal on CDs
  • D.  The method by which Billboard counted album sales for purposes of the Billboard Top 100,

 

Ten

 

 

 

 

 

 

 

 

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Proposed Rule on Lawyer-Client Sex Published for Comment

The Vermont Supreme Court has published for comment a proposed rule that would ban lawyer-client sexual relationships that do not pre-date the professional relationship.

  • The proposed rule is HERE.
  • For background information, here are my blog posts on the topic.

Finally, here’s the language from the cover memo that accompanied the proposed rule:

  • The proposed amendment deletes Comment 12 to Rule 1.7 due to the simultaneous proposalto add Rule 1.8(j), which explicitly precludes a lawyer from having a sexual relationship with a client unless a consensual sexual relationship existed when the client-lawyer relationship began.
  • The proposed amendment to Rule 1.8(j) adds a prohibition on sexual relations between alawyer and client unless a consensual sexual relationship existed when the client-lawyer relationship commenced.                                                                       
  • The proposed amendment to Comment 17 clarifies that the rule applies
    to all sexual relationships formed after the commencement of the professional client-lawyer relationship, including consensual sexual relationships and sexual relationships in which there is no prejudice to the client’s interests in the matter that is the subject of the professional relationship. In such instances, a lawyer must withdraw from continued representation. See V.R.Pr.C. 1.16(a)(1).                                  
  • The proposed addition of Comment [18] provides guidance on sexual
    relationships that pre-date the commencement of the client-lawyer relationship.
  • The proposed amendment renumbers former Comment [18] as Comment [19] and clarifies that the conflict created by Rule 1.8(j) is personal for purposes of imputation. See V.R.Pr.C. 1.10.
  • The proposed new rule 1.8(j) tracks Rule 1.8(j) of the ABA Model Rules of Professional Conduct. Vermont joins 31 other states in adopting a specific prohibition on client-lawyer sexual relationships.
  • The proposed amendment is a “bright-line” rule that recognizes the serious risk to a client’s interest in receiving candid, competent, and conflict-free legal advice that is presented when the professional relationship turns sexual. Further, the proposed amendment is consistent with the fact that at least 18 of Vermont’s other licensed professions have adopted rules that specifically ban sexual relationships between a licensee and a client, patient, or person with whom the licensee has a professional relationship.
  • Comments on this proposed amendment should be sent by December 18, 2017, to Michael Kennedy, Bar Counsel, at the following address:

Michael Kennedy, Bar Counsel
Office of Bar Counsel
32 Cherry Street, Suite 213
Burlington, VT 05401
Michael.kennedy@vermont.gov

Legal Ethics

RIP – Ruth Stokes

Ruth Stokes passed away Monday.  Ruth was not a lawyer and most readers likely have no idea who she was.  I wanted to take a moment to call Ruth to your attention.

Ruth’s obituary reminds me how difficult it is to capture a life.  Simply, we aren’t paragraphs.  Ruth certainly wasn’t.

Her obituary is as understated as she was.  Not mentioned, Ruth served for many years as vice-chair of the State Board of Education.  In addition, she wasn’t just a member of the UVM Board of Trustees; she served stints as both Secretary and Chair.  In her role as Board Secretary, she signed an untold number of diplomas, including mine.

The main reason I write, however, is that Ruth served for a number of years as a member of the old Professional Conduct Board, and then for 6 years as a hearing panel member once we switched to the Professional Responsibility Board.  Through her work for the PCB and her work on the House Judiciary Committee, Ruth impacted the legal profession in a way few non-lawyers have.

She’s also the source of one of my favorite stories from my time as a disciplinary prosecutor.

Before I became a lawyer, Ruth met my mom through politics and shared circles.  So, by the time I was hired as deputy disciplinary counsel and made my first appearances before the PCB, Ruth and I knew of each other, and she certainly knew my family.

I don’t remember the year – i’m guessing 2000 or 2001 –  but I remember a disciplinary case I prosecuted before a panel upon which Ruth sat.  A few days before the hearing, I broke my nose playing basketball.  On the day of the hearing, my nose & eyes were still quite bruised.  As the panel entered and sat down, Ruth quipped “looks like the Kennedy boys fought their way out of a bar again this weekend.”

I broke out laughing.  Trust me, I took no offense and it was funny.

Anyway, that’s how I’ll always remember her.  Serious, and seriously dedicated to serving Vermont, but not so serious as to lose sight of the fact that we don’t need to be so serious all the time.  We can serve, but still enjoy the light moments.

Ruth Stokes – RIP.

Ruth Stokes

Have you heard the one about the $1 million fee award that walked into a spam filter?

It’s no joke.

UPDATE:  After reading my original post, a lawyer shared a story with me and authorized me to share it with you.  I’ve appended the story to this column. Because I think the story might serve as a valuable tip, I’m re-posting this blog to help draw attention to it. 

I’ve often blogged on the ethical duty of tech competence.  My posts on the topic are here.

Now, a cautionary tale from the real world.

Alberto Bernabe is a law professor at The John Marshall Law School. He’s also a regular presence on this blog’s #fiveforfriday Honor Roll.  Yesterday, on his own blog, Professor Bernabe posted ‘My computer ate my homework’ is not a good excuse.  His post links to a case that involves tech competence and a missed deadline to appeal an order awarding $1,000,000.00 in attorney’s fees.

The full story comes from Law For Lawyers Today.  The headline says it all: Deleted spam leads to missed appeal; not excusable, FL court of appeals holds.  Here’s the quick version:

  • Ben sued Tom.
  • Lawyer represented Ben.  Attorney, who works at Firm, represented Tom.
  • Ben won.
  • Lawyer moved for attorney’s fees.
  • The court granted the motion.
  • The court e-mailed the order to Attorney.
  • Attorney’s Firm’s e-mail system “filtered out” the order as spam.
  • Firm’s e-mail system was configured to delete spam after 30 days, without notice to a person.
  • Firm’s e-mail system deleted the order.
  • Tom moved for relief from judgment.
  • Attorney argued that Firm did not receive the order in time to file an appeal.
  • The trial court denied the motion.
  • An appellate court affirmed the trial court’s decision.

At the hearing on Tom’s motion for relief from judgment, Firm’s former IT person testified that he had advised Firm against configuring its e-mail system to delete spam after 30 days and without notice to a person.  He also testified that he advised Firm to buy an e-mail backup system and to retain a tech vendor to deal with e-mail spam.  Firm did not take the advice, in part to save money.

The appellate court noted that Firm’s failure to learn about the order was not the result from “mistake, inadvertence, surprise or excusable neglect.”  Rather, Firm intentionally chose to use “a defective e-mail system without any safeguards or oversight to save money. Such a decision cannot constitute excusable neglect.”

Competence includes tech competence.  For now, I’ll leave you with the final paragraph from the blog post that’s on The Law for Lawyers Today:

  • “The harsh result here may yet be ameliorated if the court of appeals grants rehearing.  In the meantime, however, the scary scenario points to the need to pay attention to your firm’s  technology and processes for handling spam.  And old-fashioned procedures like checking the court’s docket can also help avoid an unpalatable spam situation.”

UPDATE – here’s the abridged version of the story that a lawyer shared with me after reading my original post.

  • Lawyer represented Client.
  • Throughout matter, Lawyer & Client communicated via e-mail.
  • Matter went to a bench trial.
  • In a written decision, Trial Court found against Client.
  • Lawyer scanned the decision and attached it to an e-mail to Client.  In the body of the e-mail, Lawyer asked “Do you want to appeal?”
  • 31 days after decision was issued, Client called Lawyer and asked “have we heard anything from the trial court?”
  • Lawyer investigated and determined that the e-mail to Client was stuck in outgoing mail and had never left Firm’s server.
  • Over Opposing Party’s objection, Trial Court granted Lawyer & Client leave to file an untimely appeal.
  • On appeal, the Vermont Supreme Court granted Opposing Party’s motion to dismiss the appeal as untimely.

Lawyer’s firm took two lessons from the experience: (1) Lawyer regularly checks Lawyer’s spam folder & outgoing mailbox; and, (2) rather than relying on e-mail silence, Firm adopted a protocol to call clients on important issues, such as the decision whether to appeal.

 

Tech Incompetence

Have you heard the one about the $1 million fee award that walked into a spam filter?

It’s no joke.

I’ve often blogged on the ethical duty of tech competence.  My posts on the topic are here.

Now, a cautionary tale from the real world.

Alberto Bernabe is a law professor at The John Marshall Law School. He’s also a regular presence on this blog’s #fiveforfriday Honor Roll.  Yesterday, on his own blog, Professor Bernabe posted ‘My computer ate my homework’ is not a good excuse.  His post links to a case that involves tech competence and a missed deadline to appeal an order awarding $1,000,000.00 in attorney’s fees.

The full story comes from Law For Lawyers Today.  The headline says it all: Deleted spam leads to missed appeal; not excusable, FL court of appeals holds.  Here’s the quick version:

  • Ben sued Tom.
  • Lawyer represented Ben.  Attorney, who works at Firm, represented Tom.
  • Ben won.
  • Lawyer moved for attorney’s fees.
  • The court granted the motion.
  • The court e-mailed the order to Attorney.
  • Attorney’s Firm’s e-mail system “filtered out” the order as spam.
  • Firm’s e-mail system was configured to delete spam after 30 days, without notice to a person.
  • Firm’s e-mail system deleted the order.
  • Tom moved for relief from judgment.
  • Attorney argued that Firm did not receive the order in time to file an appeal.
  • The trial court denied the motion.
  • An appellate court affirmed the trial court’s decision.

At the hearing on Tom’s motion for relief from judgment, Firm’s former IT person testified that he had advised Firm against configuring its e-mail system to delete spam after 30 days and without notice to a person.  He also testified that he advised Firm to buy an e-mail backup system and to retain a tech vendor to deal with e-mail spam.  Firm did not take the advice, in part to save money.

The appellate court noted that Firm’s failure to learn about the order was not the result from “mistake, inadvertence, surprise or excusable neglect.”  Rather, Firm intentionally chose to use “a defective e-mail system without any safeguards or oversight to save money. Such a decision cannot constitute excusable neglect.”

Competence includes tech competence.  For now, I’ll leave you with the final paragraph from the blog post that’s on The Law for Lawyers Today:

  • “The harsh result here may yet be ameliorated if the court of appeals grants rehearing.  In the meantime, however, the scary scenario points to the need to pay attention to your firm’s  technology and processes for handling spam.  And old-fashioned procedures like checking the court’s docket can also help avoid an unpalatable spam situation.”

Tech Incompetence

 

 

 

Monday Morning Answers: #90

Friday’s questions are here.  Spoiler alert – today’s answers immediately follow the honor roll.

Honor Roll

  • A1A – Beachfront Avenue!
    • Kane Smart, Office of General Counsel, Agency of Natural Resources
  • Ed AdrianMonaghan Safar Ducham
  • Karen AllenKaren Allen Law
  • Matt AndersonPratt Vreeland Kennelly Martin & White
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor of Law, John Marshall Law School
  • Robert Grundstein, Esq.
  • Glenn JarrettJarrett & Luitjens
  • Jim Johnson, Chittenden South Supervisory Union
  • Kevin LumpkinSheehey Furlong & Behm
  • Hal Miller, First American
  • Herb Ogden, Esq.
  • Daron Raleigh, Deputy State’s Attorney, Windsor County
  • Nancy Hunter Rogers, Chamberlin School, South Burlington
  • Jack Welch, Esq.

Answers

Question 1

If you attend a CLE and I discuss “puffery,” what ethics issue am I most likely addressing?

  • A.   Whether a  lawyer violates federal law by using marijuana
  • B.   The extent to which the rules on candor & honesty apply during negotiations.
  • C.   Dishonest trust accounting practices
  • D.   Viewing an adverse party’s social media posts

Here’s my post on whether “puffery” constitutes dishonesty or a false statement of material fact to a third person.

Question 2

In legal ethics, the word “imputed” is most often associated with:

  • A.   The advertising rules
  • B.   Interest earned on lawyer trust accounts
  • C.  Conflicts of Interest.   Vermont’s rule on imputed conflicts is V.R.Pr.C. 1.10.
  • D.  Technology & The Duty of Competence

Question 3

I spoke at CLE yesterday.  One point I emphasized was:

“If it’s yours, get it out.”

When I made the statement, what general topic was I discussing?

Trust accounting.  Leaving your own money in trust is “commingling.”  If it’s yours, get it out of trust.

Question 4

By rule, “a lawyer employed or retained by an organization represents the organization acting through its duty authorized constituents.”  Do the rules allow the lawyer who represents an organization to represent its individual directors, officers, employees, members, or other constituents?

  • A.   No
  • B.   Yes
  • C.   Yes, subject to Rule 1.7 (the rule on conflicts of interest).  See, V.R.Pr.C. 1.13(g).
  • D.   The rules are silent on this issue

Question 5

And speaking of lawyers who represent organizations . . .

. . . in 2008, Tilda Swinton won the Academy Award for Best Supporting Actress for her portrayal of corporate lawyer Karen Crowder.  Crowder was in-house counsel for U-North, a giant manufacturer of agro-chemical products.  U-North was the defendant in a class action lawsuit involving allegations that U-North manufactured, marketed, and distributed a carcinogenic weed killer.

Crowder retained an outside law firm to handle the defense.  The firm’s leading litigator, Arthur Edens (Tom Wilkinson), discovered an internal memo that Crowder and U-North had intentionally withheld from the plaintiffs.  The move proved that, in fact, U-North continued to sell its product despite knowing that it would kill people in addition to killing weeds.

On the horns of the ethical dilemma of whether to blow the whistle on Crowder and U-North, Edens cracked.  During a deposition, he stripped naked and ran outside into a snowstorm.  Fearful that Edens would disclose the memo, Crowder did what any self-respecting in-house counsel would do – brought the matter to the attention of U-North’s CEO, then had Edens killed.

Shocked, Edens’ firm brought in George Clooney to figure out what happened.  It didn’t take Clooney long to determine that the firm’s client and its general counsel had been up to no good.  And it didn’t take Crowder & U-North long to attempt to send Clooney to the same fate as his law partner, Arthur Edens.

Your task: identify this movie, a film replete with legal ethics issues, including the duty to disclose a client’s fraud and crimes.  Oh yeah, and the duty not to have outside counsel murdered.

MICHAEL CLAYTON

Michael_clayton

 

 

 

A Sex Rule

Earlier this week, the Professional Responsibility Board forwarded to the Vermont Supreme Court its recommendation that the Court amend Rule 1.8 of the Vermont Rules of Professional Conduct as follows:

  • (j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.

31 states have a specific ban on client-lawyer sexual relationships.  As of now, Vermont does not.

Rather, in Vermont, for a sexual relationship with a client to be an ethics violation, the lawyer must do something else wrong. That is, disciplinary counsel would have to prove, for example, that the relationship created an impermissible conflict of interest under Rule 1.7(a)(2). The conflict being the risk that the relationship would materially limit the lawyer’s duties to the client.

The notion that a sexual relationship crosses the line only if leads to another violation is codified in Comment [17] to the current version of Rule 1.8:

  • “The relationship between the lawyer and client is a fiduciary one in which the lawyer occupies the highest position of trust and confidence.  The relationship is almost always unequal; thus, a sexual relationship between and client can involve unfair exploitation of the lawyer’s fiduciary role, in violation of the lawyer’s basic ethical obligation not to use the trust of the client to the client’s disadvantage.  In addition, such a relationship presents a significant danger that, because of the lawyer’s emotional involvement, the lawyer will be unable to represent the client without impairment of the exercise of independent professional judgment.  Moreover, a blurred line between the professional and personal relationships may make it difficult to predict to what extent client confidences will be protected by the attorney-client evidentiary privilege, since client confidences are protected by privilege only when they are imparted in the context of the client-lawyer relationship.  For all of these reasons, lawyers are cautioned that sexual relations with a current client could give rise to claims of incompetence under Rule 1.1, of lack of diligence under Rule 1.3, of a conflict with the lawyer’s personal interests under Rule 1.7(a)(2), of using client information to the client’s disadvantage under Rule 1.8(b), of conduct involving dishonesty or the like under Rule 8.4(c), or of conduct prejudicial to the administration of justice.”

The PRB disagrees.  The Board’s position is that the imbalance of power inherent in the professional relationship between lawyer and client necessitates an absolute ban on a sexual relationship between the two.  At least 19 other of Vermont’s licensed professions have just such a ban.

The Court will consider the Board’s proposal at its next administrative meeting.  After that, the proposal might be published for notice & comment.  If you are interested in the topic, please keep an eye on the memos to the bar that the State Court Administrator sends via e-mail. Proposed rules are published in those memos.

For further reading, here are my previous blogs on the issue:

salt-n-pepa

Referral Fees: Think Thrice

I continue to encounter confusion about referral fees.  This week, the topic arose during an inquiry I received, and again at a CLE seminar I presented.

My position remains that Vermont’s rules do not authorize straight referral fees.

Here’s my quick analysis:

  1. Rule 7.2(b) prohibits a lawyer from “giving anything of value to a person for recommending the lawyer’s services;”
  2. Rule 7.2(b)(4) authorizes lawyers to make referrals and enter into reciprocal referral arrangements; but,
  3. 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 . . .”
  4. Rule 1.5(e) authorizes lawyers who are not in the same firm to share fees if:
    • the division is in proportion to the services each performs, OR, each lawyer assumes joint responsibility for the representation;
    • the client confirms in writing the client’s agreement to the division of the fee; and,
    • the overall fee is reasonable.

Here’s a primer on referral fees.  And, here’s a post that discusses what it means”to assume joint responsibility for a representation,” and thereby trigger Rule 1.5’s authorization of a division of fees.

dollar sign

Five for Friday #90

Alright, stop.  Collaborate and listen.

Actually, I should stop there.

As many of you know, I use the introduction to the #fiveforfriday legal ethics quiz to talk about something related to the week’s number.  I’ve found that intros related to music generate the most interest.  Indeed, there’s a county bar president who continues to take great umbrage over my preference for The Rolling Stones over The Beatles.

Unlike 89 in last week’s ode to Taylor Swift, 90 evokes little for me.  So, I’ll foreshadow two upcoming intros with these teasers:

  • 1990 was the year that Chris Cornell formed Temple of the Dog in response to the death of Andrew Wood, lead singer for Mother Love Bone; and,
  • 1990 was the last full calendar year before Dr. Dre left NWA.

I want to keep this week’s intro quick and to the point.  That’s an intentional reflection of the unfortunate fact that 1990 was the year that Robert Van Winkle scored a number 1 hit with a song whose lyrics included:

“Quick to the point, to the point no fakin’
I’m cookin’ MC’s like a pound of bacon.”

Finally, compounding the misfortune, it was 1990 when, as a 1L at GW Law, a friend nicknamed me “Strawberry Ice.”  For years, another friend never called me anything but “Ice.”

And the story behind the nickname is exactly why I started this post by saying  “actually, i should stop there.”  Heeding my own advice . . .

. . . onto the quiz.  Word to your mother!

 

vanilla_ice

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 don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Please consider sharing the quiz on social media with the hashtag #fiveforfriday

Question 1

If you attend a CLE and I discuss “puffery,” what ethics issue am I most likely addressing?

  • A.   Whether a  lawyer violates federal law by using marijuana
  • B.   The extent to which the rules on candor & honesty apply during negotiations
  • C.   Dishonest trust accounting practices
  • D.   Viewing an adverse party’s social media posts

Question 2

In legal ethics, the word “imputed” is most often associated with:

  • A.   The advertising rules
  • B.   Interest earned on lawyer trust accounts
  • C.  Conflicts of Interest
  • D.  Technology & The Duty of Competence

Question 3

I spoke at CLE yesterday.  One point I emphasized was:

“If it’s yours, get it out.”

When I made the statement, what general topic was I discussing?

Question 4

By rule, “a lawyer employed or retained by an organization represents the organization acting through its duty authorized constituents.”  Do the rules allow the lawyer who represents an organization to represent its individual directors, officers, employees, members, or other constituents?

  • A.   No
  • B.   Yes
  • C.   Yes, subject to Rule 1.7 (the rule on conflicts of interest)
  • D.   The rules are silent on this issue

Question 5

And speaking of lawyers who represent organizations . . .

. . . in 2008, Tilda Swinton won the Academy Award for Best Supporting Actress for her portrayal of corporate lawyer Karen Crowder.  Crowder was in-house counsel for U-North, a giant manufacturer of agro-chemical products.  U-North was the defendant in a class action lawsuit involving allegations that U-North manufactured, marketed, and distributed a carcinogenic weed killer.

Crowder retained an outside law firm to handle the defense.  The firm’s leading litigator, Arthur Edens (Tom Wilkinson), discovered an internal memo that Crowder and U-North had intentionally withheld from the plaintiffs.  The move proved that, in fact, U-North continued to sell its product despite knowing that it would kill people in addition to killing weeds.

On the horns of the ethical dilemma of whether to blow the whistle on Crowder and U-North, Edens cracked.  During a deposition, he stripped naked and ran outside into a snowstorm.  Fearful that Edens would disclose the memo, Crowder did what any self-respecting in-house counsel would do – brought the matter to the attention of U-North’s CEO, then had Edens killed.

Shocked, Edens’ firm brought in George Clooney to figure out what happened.  It didn’t take Clooney long to determine that the firm’s client and its general counsel had been up to no good.  And it didn’t take Crowder & U-North long to attempt to send Clooney to the same fate as his law partner, Arthur Edens.

Your task: identify this movie, a film replete with legal ethics issues, including the duty to disclose a client’s fraud and crimes.  Oh yeah, and the duty not to have outside counsel murdered.

 

 

the-quiz

 

Monday Morning Answers – T. Swift & T. Petty

Now I know what drives traffic – Taylor Swift!

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

Honor Roll

Answers

Question 1 – American Girl

“Well she was an American girl
Raised on promises . . .”

Later, the American girl became a lawyer and is admitted to practice in Vermont.  By rule, she has essentially promised:

  • A.  Not to disclose information related to the representation of her clients.
  • B.  Not to disclose information related to the representation of her clients, unless the information is a matter of public record.
  • C.  Not to disclose information related to the representation of her clients, unless the information falls outside the attorney-client privilege.
  • D.  Not to disclose her clients confidences and secrets.

For more on this, please see this blog post in which I discuss Rule 1.6 and its interplay with matters of privilege & matters in the public record.

Question 2 – Refugee

Lawyer represents Client in a civil matter.  Trial is scheduled for next week.  Most of Lawyer’s strategy sessions with Client have focused on Witness.  Lawyer plans to have Witness testify and offer evidence in support of Client’s claim.

Yesterday, Client said to Lawyer:

  • “We got somethin’, we both know it, we don’t talk too much about it
    Ain’t no real big secret, all the same, somehow we get around it
    Oh listen, it don’t really matter to me, baby
    You believe what you wanna believe.”

Lawyer was somewhat confused, but, having thought about it, thinks that Client might have convinced Witness to offer false evidence.  Which is most accurate?

  • A. If Lawyer reasonably believes that Witness will offer false evidence, Lawyer may refuse to offer Witness’s testimony. See, V.R.Pr.C. 3.3(a)(3).  
  • B.  Lawyer must offer Witness’s testimony.
  • C.  Lawyer must not offer Witness’s testimony.
  • D.  Lawyer must withdraw.

The key here is that Lawyer suspected, but did not know, that Client might have convinced Witness to offer false evidence.  A prudent course here would be to remonstrate with client & to make clear to Client (1) that “C” would be correct if Lawyer “knows” Witness will offer false testimony; and, (2) that if Lawyer discovers after-the-fact that Witness provided false evidence, Lawyer has a duty to take reasonable remedial measures, up to and including disclosure to the court.

Question 3 – Don’t Do Me Like ThatJammin’ Me

This is a different case than in Question 2.

Attorney informs Client that Attorney intends to file a motion to withdraw.  Client responds:

  • “Don’t do me like that
    Don’t do me like that
    Someday I might need you baby
    Don’t do me like that!”

Attorney replies “the ethics rules require me to withdraw.” Client retorts:

  • “You’re jammin’ me, you’re jammin’ me
    Quit jammin’ me
    Baby you can keep me painted in a corner
    You can walk away but it’s not over.”

Assuming that Attorney is correct and that withdrawal is mandatory, which of the following will Attorney be most likely to cite in the motion?

  • A.  Client has failed substantially to comply with the terms of the fee agreement.
  • B.  Attorney has discovered a non-waivable conflict of interest with a former client.
  • C.  The representation has been rendered unreasonably difficult by Client.
  • D.  Client insists on taking a course of action that Attorney considers repugnant.

Rule 1.16(a)(1) mandates withdrawal when continued representation will result in a violation of the rules of professional conduct.  Continuing despite a non-waivable conflict would cause Attorney to violate the rules.   Thus, B is correct.  Choices A, C, and D are instances in which withdrawal is permitted, but is not mandatory.  

Question 4 – Runnin’ Down A Dream

Continuing the scenario from the previous question, Attorney filed the motion to withdraw.  As it remained pending, stress & anxiety bedeviled Client.  Then, the court granted the motion.  Shortly thereafter, Client contacted the VBA’s Lawyer Referral Service and received a list of potential new lawyers.  Uplifted, Client called Attorney to schedule an appointment to pick up the file. Client said:

  • “I rolled on as the sky grew dark
    I put the pedal down to make some time
    There’s something good waitin’ down this road
    I’m pickin’ up whatever’s mine.”

When Client arrives, Vermont’s rule specifically requires Attorney to:

  • A.   Keep a copy of Client’s file.
  • B.   Surrender Papers & Property to which Client is entitled.
  • C.   A, B, and refund any unearned fee.
  • D.   B and refund any unearned fee.

This is Rule 1.16(d).  After complying with the rule by delivering the file, there is nothing in the rules of professional conduct that requires Attorney to keep a copy of the file.  Most carriers, however, have language in their policies that require lawyers to keep copies of a closed files for X number of years.

Question 5 – Free Fallin’

Continuing the scenario . . . Client followed through on her statement that Attorney could walk away, but it’s not over.  Before runnin’ down her dream elsewhere, Client posted a negative online review about Attorney, sued Attorney for malpractice, and filed a disciplinary complaint against Attorney.

Attorney intends to respond with:

  • “She’s a good girl, loves her mama
    Loves Jesus and America too
    She’s a good girl, crazy ’bout Elvis
    Loves horses and her boyfriend too
  • It’s a long day livin’ in Reseda
    There’s a freeway runnin’ through the yard
    And I’m a bad boy, ’cause I don’t even miss her
    I’m a bad boy for breakin’ her heart”

Assume the information in the response is true, but is not generally known.  Attorney would likely violate the rules by:

  • A.  Posting the information online, in response to the negative review.
  • B.  Incorporating the response into the defense of the malpractice complaint.
  • C.  Incorporating the response into his answer to the disciplinary complaint.
  • D.  None of the above.  No matter the forum, Client put the representation in issue.

Client is a “former client.”   Rule 1.9(c)(2) prohibits disclosure of information relating to the representation of a former client unless the rules otherwise permit disclosure.  Here, Rule 1.6(c)(3) permits B & C.  The rule is often referred to as the “self-defense exception” to the general prohibition against disclosure.  It is well-settled that the “self-defense exception” does not apply to negative online reviews.  For more, see my post Negative Online Review? What NOT to do.

swift and petty