CC, BCC, and a lawyer’s duty of competence.

I can hear you now.

  • “Mike, what the heck do CC & BCC have to do with my duty of competence?”

Thank you!! The fact that you know you have a duty of competence is music to my ears!

Now, back to your question.

In my view, the duty of competence includes a duty to have a basic understanding of the benefits and risks of using technology while representing a client.  For example, understanding the risks of “CC-ing” or “BCC-ing” a client on an e-mail to opposing counsel.

So, to bcc or not to bcc?  That is the question.  It’s a question worth considering, if only not to suffer the slings and arrows of angry clients & frustrated opposing counsel.

I’ve blogged on this issue before:

The posts reference advisory opinions from North Carolina and New York.  The opinions list the reasons not to “cc” clients, “bcc” clients, or “reply-all” to an email in which opposing counsel “cc’d” a client.   Any or all can lead a lawyer right into the danger zone.

Seriously Lana, call Kenny Loggins.

Last month, the Alaska Bar Association issued Ethics Opinion 2018-01: E-Mail Correspondence with Opposing Counsel While Sending a Copy to the Client.  The opinion is consistent with those issued by the North Carolina and New York bars.

Here’s a summary of the Alaska Bar’s opinion:

  • A lawyer has a duty to act competently to protect a client’s confidences.
  • A lawyer has a duty not to communicate with a represented party on the subject of the representation.
  • Lawyers are encouraged not to “cc” or “bcc” their clients on electronic communications to opposing counsel.
  • A more prudent practice is to forward the client a copy of a sent e-mail.
  • At the outset of any matter, lawyers should agree on a “cc” and “reply-all” protocol.
  • Absent a protocol, s lawyer has a duty to inquire whether opposing counsel’s “cc” to opposing counsel’s client is permission to “reply-all.”

Good recommendations.

Stay safe out there.  And, remember: competence includes tech competence.

Image result for hamlet to be or not to be

 

 

 

 

 

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Service via Instagram

It has been over two years since I first blogged on tech competence.  As regular readers know, my opinion is that competence includes tech competence.

Here’s the latest:  Above The Law and Canadian Lawyer have the story of a Toronto lawyer who received permission to serve an adversary via direct message on Instagram. The lawyer made the request after unsuccessful attempts to serve the defendant in person and by e-mail.

Remember: as I’ve often said, the rules don’t require lawyers to have or to use social media platforms.  However, my position is that Rule 1.1’s duty of competence includes providing clients with competent advice as to the impact (or not) that their social media platforms will have on any particular matter.  This includes the impact of information that clients make available on social media, and, as today’s story illustrates, the impact of merely having a social media account through which messages can be delivered.  For instance, imagine a client’s claim never being brought for no other reason than you didn’t think to check whether the defendant could be “found” on social media.

@vtbarcounsel

See the source image

Was That Wrong? Cannabis (In)competence

As I’ve blogged, in 2016, the Court adopted a comment to Rule 1.2 authorizing lawyers to advise clients on cannabis & marijuana issues that are legal under state law.  If you’re a Vermont lawyer who intends to do so, make sure you know what you’re talking about.

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, cause 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.

costanza

Today’s lesson comes courtesy of an order from the Florida Supreme Court disbarring a lawyer who advised clients that it was legal under state law to cultivate, possess, and use marijuana for medical purposes.  It wasn’t. The Chicago Tribune and the Cannabist were among the outlets to cover the story.

Hint:  it’s never a good sign when a state supreme court’s disciplinary order includes: “The most prominent features of Respondent’s misconduct are incompetence and extremely serious harm to clients.”  Opinion, p. 5.

Someday I hope to launch a YouTube channel tied to this blog.  When I do, I’ll adapt Was That Wrong entries to the screen.  Here’s how I envision scripting today’s:

  • Court:  We will get right to the point. It has come to our attention that you;
    • advised clients that it was legal to grow, possess, and use marijuana for medical purposes;
    • referred these clients to doctors who weren’t licensed to practice medicine in Florida and who provided your clients with meaningless “legal certifications” and “grow cards;”
    • told clients “not to worry” when they called to tell you that the police had stopped by to instruct them to dismantle grow operations; and,
    • did not refund fees to clients who, having relied upon your advice, were arrested, charged, convicted, fined, and lost almost everything including, in at least one case, a professional license; and,
    • continued to insist that your advice was correct even as your clients were prosecuted criminally.
  • Lawyer: Who said that?
  • Court: Your clients did.
  • 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, cause I’d only been admitted for 3 months when I started doing that.
  • Court: Disbarred.
  • Lawyer: Well you didn’t have to say it like that.

Again, Comment 14 to Rule 1.2(d) of the Vermont Rules of Professional Conduct authorizes lawyers to provide clients with advice on cannabis & marijuana issues that are legal under state law.  Nothing in the rules, however, relieves lawyers from doing so in a competent manner.

Can a lawyer concede a client’s guilt over the client’s objection?

Updated on January 26, 2018

Question: in a criminal case, can a lawyer concede a client’s guilt over the client’s objection?

As reported by the ABA Journal, the question lies at the heart of an argument that the United States Supreme Court heard last week.  Outlets to report on the argument include The New York Times, Reuters, and USA Today.

The case is State of Louisiana v. Robert Lee McCoy.  In 2008, Mr. McCoy was charged with 3 counts of first degree murder.  In 2010, he hired a lawyer to replace the public defenders initially assigned.  Upon entering an appearance, the lawyer admitted that he was not certified to try death penalty cases, but that he expected to assemble a team of lawyers who were.  No such team was ever assembled.

In July 2011, two days before jury selection, the lawyer informed the court that Mr. McCoy wanted to fire him.  At a hearing, Mr. McCoy stated that he and his lawyer disagreed on trial strategy, with his lawyer insisting that he take a plea and not go to trial.  The court denied the motion as untimely.

Trial opened a month later.  During his opening statement, Mr. McCoy’s lawyer informed the jury “I’m telling you Mr. McCoy committed these crimes.”  He argued, however, that the evidence would show that his client suffered from such severe emotional issues that the jury ought to consider second degree murder.

Against the advice of counsel, Mr. McCoy testified.  Essentially, he testified that he had been framed.

The jury convicted Mr. McCoy of 3 counts of first degree murder.  Mr. McCoy was sentenced to death on each count.

Mr. McCoy appealed.  Among other things, he argued that he had been denied effective assistance of counsel and that his lawyer improperly conceded guilt over his objection. The Louisiana Supreme Court affirmed the convictions and death sentences.

In Vermont, Rule 1.2(a) of the Rules of Professional Conduct requires lawyers to “abide by a client’s decisions concerning the objectives of [the] representation.”  The rule goes on to state that “[i]n a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, and whether the client will testify.” Louisiana’s rule tracks Vermont’s.

To me, Mr. McCoy’s objective was to be found not guilty. His lawyer did not pursue that objective.  Indeed, the lawyer doesn’t dispute that. Here’s an excerpt from an affidavit that lawyer filed in one of the post-trial proceedings:

  • “I became convinced that the evidence against Robert McCoy was overwhelming ․ I know that Robert was completely opposed to me telling the jury that he was guilty of killing the three victims and telling the jury that he was crazy but I believed that this was the only way to save his life. I needed to maintain my credibility with the jury in the penalty phase and could not do that if I argued in the guilt phase that he was not in Louisiana at the time of the killings, as he insisted. I consulted with other counsel and was aware of the Haynes case and so I believed that I was entitled to concede Robert’s guilt of second degree murder even though he had expressly told me not to do so. I felt that as long as I was his attorney of record it was my ethical duty to do what I thought was best to save his life even though what he wanted me to do was to get him acquitted in the guilt phase. I believed the evidence to be overwhelming and that it was my job to act in what I believed to be my client’s best interests .”

Alberto Bernabe is a professor at John Marshall Law School.  Professor Bernabe teaches torts & professional responsibility. He’s also a regular on this blog’s #fiveforfriday Honor Roll.  Here’s a portion of a blog that Professor Bernabe posted last fall after SCOTUS granted cert in the McCoy case:

  • “In this case, the defendant, Robert Leroy McCoy, refused his lawyer’s suggestion to accept a plea deal, and objected when the lawyer informed him he planned to concede guilt.  He also protested at trial, after the lawyer conceded guilt during the opening statement.  According to an article in the ABA Journal, ‘the lawyer maintained the concession was necessary because he had an ethical duty to save McCoy’s life.’There is only one problem.  There is no such ethical duty.

    “The duty of the lawyer is to represent the client and this includes following the client’s instructions as to the goals of the representation.”

I tend to agree.

Per the ABA Journal, before the Supreme Court, the State of Louisiana “argued that lawyers should be able to ignore their client’s wishes in ‘a narrow class of death penalty cases’—when the client wants to pursue a strategy that is ‘a futile charade’ that defeats the objective of avoiding the death penalty.

Perhaps echoing Mr. McCoy’s argument, and as reported by The New York Times, Justice Kagan remarked “[t]here’s nothing wrong with what this lawyer did, if the goal is avoiding the death penalty.  The problem that this case presents is something different. It’s the lawyer’s substitution of his goal of avoiding the death penalty for the client’s goal.”

On the one hand, as a lawyer, it’s a dilemma I’d never want to face.  Indeed, “dilemma” is far too weak to describe the position in which the lawyer found himself.

On the other hand, should I ever be charged with a crime, I can’t imagine exercising my right to hold the government to its proof, only to have my own lawyer, against my express instruction, concede my guilt his opening statement.  It strikes me as the functional equivalent of my lawyer waiving my right to trial, waiving my right to testify, and pleading me out without my consent.  That’d be Kafka-esque.

Most media outlets that covered the argument reported that the Supreme Court appeared inclined to grant Mr. McCoy a new trial. However, as reported by Reuters,           “[t]he ruling could be a narrow one, with justices concerned about a broad decision that would limit the ability of lawyers to make strategic decisions during trials.”

I’m intrigued by one potential outcome: what if the Court holds that the lawyer reasonably, albeit erroneously, believed that the Constitution required him to concede his client’s guilt over the client’s objection? Is that an absolute defense to a 1.2(a) violation? Stated differently, wouldn’t we find it absurd for a lawyer to say something like “yeah, I know the Constitution required it, but it violates the ethics rules, so I didn’t do it.”

Or how about this – what if the lawyer’s gambit had worked?  Obviously doesn’t change the Rule 1.2(a) issue, but likely mitigates the sanction.  And, would the Court still be inclined to find ineffective assistance if Mr. McCoy had been convicted of 2nd degree murder and spared the death penalty?

I’ll revisit this matter when the Supreme Court issues an opinion.

 

Image result for images of us supreme court

 

Lawyers Robbing Banks: where the duty of competence meets Was That Wrong

Regular readers know that two of my favorite topics are:

  1. (1) the duty of competence; and,
  2. (2) my Was That Wrong column.

My posts on tech competence are here.  The fiascos that have earned lawyers an appearance in Was That Wrong are here.

Well, like peanut butter & chocolate in a Reese’s cup, it seems that competence & Was That Wrong have finally joined forces to bring me even greater enjoyment in unison than each does on its own.

The ABA Journal and HeraldNet report that a lawyer tried to rob a bank. Some interesting tidbits:

  • In 2014, the lawyer’s license was suspended as a result of trust account mismanagement.  He still owes about $50,000 as a result of that event
  • The lawyer demanded $50,000 from the bank
  • The demand note instructed the teller to ““Count to 500, 1 Mississippi, 2 Mississippi, 3 Mississippi etc. etc. etc. before you call police.”

The final tidbit is where competence comes in.  Is that competent bank robbing?

Now, you might argue, “but Mike, Rule 1.1’s duty of competence doesn’t apply to a lawyer who is robbing a bank!”  In the words of the inimitable Lee Corso . . .

corso

Take a look at Rule 5.7. Basically, the rule makes lawyers subject to all the other rules when they are providing “law-related services.”

Shrute Question

Channeling my inner Dwight Schrute: “question: is robbing a bank to pay back trust funds a law-related service?”  For entertainment purposes, let’s say “answer: yes!” Thus, Rule 1.1 applies.

With that having been established, the question becomes whether “count to Mississippi 500 before you hit the alarm” satisfies the duty of competence.  I don’t think so.  Here’s why.

First, 500 is way too high.  If I know anything from movies, it’s that tellers hit the alarm right befote the robber is out the door…….but only if they haven’t already sneaky hit it while pretending not to know how to open the drawer!

The robber had 5 Mississippi max.

Next, the critical fact here is how the lawyer phrased the note: he instructed the teller to say the number, then “Mississippi.” Wrong construct.

You see, everyone knows that when rushing the quarterback in touch football, it takes far longer to count “Mississippi, number” than it does “number, Mississippi.”  That’s how I always sacked my brother . . . “1 miss, 2 mis, 3 mi”  and the rush was on.

Meanwhile, when I had the ball, I made him count “Mississippi 1, Mississippi 2, Mississippi 3.”  For whatever reason, in that construct, would-be tacklers tend to enunciate “Mississippi” longer than in the reverse construct, thereby giving the QB more time to pick them apart.

In conclusion, the lawyer failed to ensure maximum getaway time by failing to instruct the clerk to use the slowest Mississippi construct possible.  Ergo, violation of the duty of competence.

And, yes.  I suspect this lawyer will find his way into Was That Wrong.

P.S.  stories about bank robberies always remind me of the Fun Lovin’ Criminals.

 

 

Supreme Court Adopts Sex Rule

Yesterday, the Vermont Supreme Court issued an order amending Rule 1.8 of the Vermont Rules of Professional Conduct.  The amendment reads:

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

The Court’s order is HERE.

The Professional Responsibility Board proposed the amendment last fall.  As I noted at the time,

“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.” 

The amendment goes into effect on March 12, 2018.

Related posts:

Legal Ethics

Tuesday Morning Answers – Holiday Quiz

You know this blog has established itself when, on Christmas Day, my mom somewhat ruefully notes that she wishes she hadn’t given me a Runner’s World calendar, but a Taylor Swift one instead.

Friday’s quiz is here.  The answers follow today’s Honor Roll.

Swift Christmas

Honor Roll

Answers

Question 1

Attorney represents Egg and Nog.   They’ve been charged with criminal conspiracy to face unafraid the plans that they’d made.

Undeterred by Comment 23 to Rule 1.7 (conflicts), but motivated by a desire to comply with Rules 1.1 (competence) and 1.3 (diligence), Attorney tracks down a key witness: Parson Brown.  Parson Brown agrees to an interview, but only if it’s outside.

What’s Parson Brown made of?

Snow.  Parson Brown is a character in Walking in a Winter Wonderland.

Question 2

My posts on legal ethics & marijuana are here.

Having secured an acquittal for Egg & Nog by successfully employing the “but it was just a dream by the fire!” defense, Attorney is back at it: representing new co-defendants.   Tommy and Marin have been charged with possession of extraordinarily large quantities.

Upon concluding an initial interview with Tommy and Marin, Attorney called me with an inquiry about Attorney’s duties under Rule 1.14 (client with diminished capacity.) Here’s our exchange:

  • Attorney – Mike, i don’t want my license to go up in smoke.  I’ve got co-defendants, Tommy & Marin.  Tommy thinks that Santa is a band! When I told him Santa isn’t a band, he thought maybe Santa was a Motown singer.  When I asked him how he didn’t know who Santa is, he replied ‘yeah, well, I’m not from here, man. Like, I’m from Pittsburgh, man. I don’t know too many local dudes.’
  • Me – Interesting.
  • Attorney:  And Marin isn’t much better.  He kinda knows who Santa is.
  • Me – Kinda?
  • Attorney.  Yeah.  He thinks that Santa and Mrs. Claus used to live in his neighborhood before getting evicted and  moving up north to start a commune with some of their friends.  Marin told me that Mrs. Claus used to make the best brownies in the neighborhood. He also thinks that Santa shut down the commune so as not to risk getting stopped at the border and found with the ‘magic dust’ that he feeds to his reindeer.

Who are Attorney’s clients better known as?

Cheech & Chong.  See, Santa Claus and his Old Lady

Question 3

Lawyer represents Client.  Client is charged with kidnapping Clarice and assaulting a gallant suitor who attempted to free her.  Client is also charged with the felony murder of one Yukon Cornelius.  Yukon is presumed dead.  He disappeared off a cliff during the daring rescue mission of Clarice and her suitor that Yukon carried out with an heretofore incompetent dentist.

But lo’ and behold, the prosecutor learns that Yukon is alive and well!  As required by Rule 3.8(d), prosecutor notifies Lawyer and, then, as required by Rule 3.1, dismisses the felony murder charge.

Lawyer works diligently to convince prosecutor to drop the remaining charges.  After all, despite a monstrous reputation, Client is winning in the court of public opinion.  If only because Client’s physical stature comes in handy during the holidays.

Who is Lawyer’s client?

Bumbles bounce! Bumble the Abominable Snow Monster

Bumble

Question 4

Attorney represents Michael Scott’s co-workers.  They have filed a civil suit against him & Dunder Mifflin.  The suit makes various tort claims related to the undisputed fact that, in the middle of the The Office’s holiday party, Michael unilaterally changed its format.

Attorney is mindful of the duties imposed by Rule 1.8(g). (aggregate settlement in a matter involving 2 or more clients.)

In any event, the party format was advertised as, and actually began as, “Secret Santa.” Upset with how things were going, Michael switched it to a different format.

Name the format.

Yankee Swap

Gifts

Question 5

Lawyer called me with an inquiry.  Lawyer’s questions related to Rule 1.18 (prospective clients) and Rule 3.1 (meritorious claims).  Per Lawyer:

  • Lawyer:  Mike, last week, I met with Cady Heron.  She wants to sue to expand the holiday season so that it officially begins on October 3.
  • Mike:  Wait.  What?
  • Lawyer:  Umm, exactly.  She said that’s the day that her crush, Aaron, first talked to her.
  • Mike:  Wow. I don’t know what to say.
  • Lawyer:  Well, maybe I’ll just ignore her.  I mean, she’s not very nice.  Plus, I refused to take a retainer.
  • Mike:  Because her claim is frivolous?
  • Lawyer: No.  Because she wanted to pay by credit card and I told her that I don’t take The Plastic.

Sadly, this scene didn’t make it past the cutting room floor.  Had it, I wouldn’t be here today.

Name the movie.

Mean Girls

October 3rd.jpg

Tech Competence: Tips and a Conference

As Olivia might sing, let’s get techical, techical.

Last week, the Professional Responsibility Board voted to recommend a series of amendments to the Vermont Rules of Professional Conduct.  The package will be forwarded to the Supreme Court for publication for comment.

Rule 1.1 requires lawyers to provide clients with competent representation.  Among other things, the Board will recommend that the Court amend Comment [6] to Rule 1.1 so as to add language that is highlighted & underlined:

  • “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”

As of September 2017, 28 states have adopted the amendment.

If you’re concerned about tech competence, fear not!

  • On May 16, 2018, the Vermont Bar Association will present its inaugural Tech Day. Save the date! It’s scheduled to take place at the Sheraton-Burlington and will include several practical seminars.
  • Yesterday, Robert Ambrogi’s LawSites blog posted tips related to tech security, including a suggestion to consider client portals.

Finally, I’ve blogged often on this topic.  Related posts include:

 

 

Comment Period on Proposed Sex Rule Closes on December 18

In October, the Supreme Court published for comment proposed amendments to Rules 1.7 and 1.8 of the Vermont Rules of Professional Conduct.  The comment period closes on December 18.

The Court published the proposed rule upon the recommendation of the Professional Responsibility Board.  31 states specifically prohibit client-lawyer sexual relationships. Vermont does not.  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.

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. The Board supports 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.

A quick summary:

  • Proposed Rule 1.8(j) adds a specific prohibition on sexual relations between a lawyer and client unless a consensual sexual relationship existed when the client-lawyer relationship commenced.
  • Proposed Comment [17] to Rule 1.8 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 would have to withdraw from continued representation.  See, Rule 1.16(a)(1).
  • Proposed Comment [18] provides guidance on sexual relationships that pre-date the commencement of the client-lawyer relationship.
  • If adopted, the conflict created by Rule 1.8(j) is personal and not imputed to other lawyers in the firm.  See, Rule 1.8(k); Rule 1.10(a).

Comments can be emailed to me at michael.kennedy@vermont.gov

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

Ethics

Monday Morning Answers – My Cousin Vinny

You’ve spoken.  My Cousin Vinny is not only your favorite movie, it’s the most popular topic upon which I’ve ever blogged.

And if there’s one thing my readers know, it’s magic grits.

Friday’s questions are here.  Spoiler alert: the answers appear below today’s Honor Roll. However, before I get to the Honor Roll & answers, I’m trying something new that I hope turns into its own column.

For those of you who follow me on Twitter, you know that last night I posted this link to all my posts on the topic of Lawyers Helping Lawyers.  I posted at 5:30 PM in reaction to my realization that “whoa! it’s pitch dark and it’s only 5:30.”

Winter is long.  Darkness can be tough.  And, as the numbers show, we’re a profession that struggles to cope with stress, anxiety, substance abuse and mental health issues.  We must promote wellness and work-life balance, and we must encourage lawyers to make time for what matters.  In other words, let’s focus on ensuring that light shines in our personal & professional lives.

One way to let the light in is to do things that have nothing to do with the law. For example, yesterday, I ran a race with my mom.  She ran the 5K, I did the half marathon. One of us won her age division, I did not.  Here’s us post-race, pre-brunch.

IMG_2933

As we enter the months where the days arehort, it’s as important as ever to keep light in our lives.  To encourage that, send me your pictures of you doing something non-lawyerly.  It doesn’t have to be running a race.  It could skiing, playing with your kids or grandkids, reading, posing outside a show you’re about to attend.  If this catches on, each week, I’ll post the pictures, highlighting lawyers who, every now & then, go lawyerly-lite to keep the light on.

Honor Roll

Answers

Question 1

The rules include a special rule on conflicts for a certain type of lawyers.  What type?

Former & Current Government Officers & Employees.  Rule 1.11

Question 2

Pick the exact word or phrase that most accurately fills in the blank.

For the purposes of the confidentiality provisions of Rules 1.6 and 1.9(c), information that is a matter of public record is not necessarily __________:

  • A.   “Waived”
  • B.   “Privileged”
  • C.    “Confidential”
  • D.    “Generally known.”

Demonstrating my lack of competence, the original version of the quiz had two correct answers:  A – disclosable, and D – generally known.  Once I caught it, I edited the blog, but not before some people had answered and, anyway, it doesn’t edit the email that goes to people who have signed-up to follow the blog.

In the revised version, the answer is “generally known.”  See generally, Rule 1.9(c)(1).  I will blog on this issue later this week.

Question 3

Attorney called with an inquiry.  I listened, then responded “the rule doesn’t say ‘solely to obtain an advantage.’ It says ‘to obtain an advantage.’  We dropped ‘solely‘ back in 1999.”

What did Attorney call to discuss?

  • A.  Contacting an opposing party’s expert witness
  • B.  Contacting a prospective juror
  • C.  Threatening criminal charges in a civil matter.  See, Rule 4.5
  • D.  Interviewing an employee of a represented organization, without the permission of the organization’s lawyer

Question 4

Lawyer called me with an inquiry. I listened, then responded “Well, given the traditional limitation on permitting a non-lawyer to direct a lawyer’s judgment, if any the activities  will include the practice of law, you can’t do it.”

What did Lawyer call to discuss?

  • A.  Forming a partnership with a non-lawyer. See, Rule 5.4(b)
  • B.  Someone other than a client paying for Lawyer to represent that client
  • C.  Sharing a referral fee with an attorney in a different firm
  • D.  Implementing a cloud-based practice management system

Question 5

In the trial in My Cousin Vinny, one of the key moments is Vinny’s cross-examination of an eye-witness.  The witness testified that Vinny’s clients must have been in the Sac-O-Suds (the convenience store where the murder took place) for 5 minutes. On cross, Vinny asked:

“Well, I guess the laws of physics cease to exist on top of your stove. Were these ___________________? Did you buy them from the same guy who sold Jack his beanstalk beans?”

Fill in the blank. Hint: it’s 2 words

Magic Grits.   The scene is here and is worth re-watching.  It’s a fantastically competent cross-examination of an eye-witness. And it’s funny.  #lawyerlight 

Vinny