Conflicts

Low Places: Conflicts arising from personal relationships with opposing counsel.

Michael

Blame it all on my roots,

I showed up in boots,

and ruined your black-tie affair.

 ~ Garth Brooks, Friends In Low Places

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 The most common inquiry that I receive is one in which a lawyer calls to discuss a potential conflict of interest.  Most often, the potential conflict involves a former client whose interests may be adverse to those of a new client.   Despite our small bar, it’s rare that I receive an inquiry involving a potential conflict arising from a lawyer’s personal relationship with opposing counsel.

So called “personal relationship” conflicts are important to understand.  And, thanks to ABA Formal Opinion 494, there’s now guidance to assist us.  Among others, the ABA Journal, the Professional Responsibility Blog, and Faughnan on Ethics reported the opinion’s release.

Before I get to the opinion, I’ll start with the rule.

In Vermont. Rule 1.7(a)(2) states that a conflict of interest exists whenever:

  • “there is a significant risk that the representation of one or more clients will be limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.” (emphasis added).

Don’t forget! Unlike conflicts involving current and/or former clients, personal interest conflicts are not automatically imputed to others in the conflicted lawyer’s firm.  They are imputed only if the prohibited lawyer’s personal interest presents “a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.”  V.R.Pr.C. 1.10(a).

So, what’s a personal interest conflict?  For years, I used an example that might be too simplistic:

  • Client wants to retain Lawyer.
  • Lawyer doesn’t know Opposing Party well, but Opposing Party is the coach of Lawyer’s child’s sports team.
  • Lawyer doesn’t want Child’s relationship with the coach to suffer.
  • So, Lawyer sits out the case, but another attorney in the same firm represents Client.

Another type of personal interest that might materially limit a lawyer’s representation of a client is the lawyer’s personal relationship with opposing counsel.  This is the type of conflict addressed by the recent advisory opinion.  It breaks such personal relationships into three categories: intimate relationships, friendships, and acquaintances.

Intimate Relationships.

Per the opinion, lawyers who are married, engaged to be married, or in an exclusive intimate relationship:

  • “must disclose the relationship to their respective clients and ordinarily must not represent the clients in the matter unless each client gives informed consent, confirmed in writing [and] the lawyers reasonably believe that they will be able to provide competent and diligent representation to each.”

This is consistent with the language in Comment 11 to V.R.Pr.C. 1.7.

Frankly, as those of you who know my status may have surmised, relationships are difficult enough for me. I can’t imagine navigating one in which my significant other represents a client’s adversary.  Alas, knowing me, I’d probably use it as an excuse to end the relationship.  And I’m not talking the attorney-client relationship.

Friendships

 This category is a bit trickier to analyze, especially in such a small state.  Here’s the quick answer:

  • “In sum, opposing lawyers who are friends are not for that reason alone prohibited from representing adverse clients.  The analysis turns on the closeness of the relationship.”  (emphasis in the original).

The opinion lists several types of friendships and indicates whether they are of a nature that would require disclosure and a client’s consent.

Among those for which disclosure and consent is advised are close friendships and friendships between lawyers who:

  • “exchange gifts at holidays and special occasions; regularly socialize together; regularly communicate and coordinate activities because their children are close friends and routinely spend time in each other’s homes; vacation together with their families; share a mentor-protégé relationship developed while colleagues . . . [or] share confidences and intimate details of their lives.”

Friendships that should be disclosed but likely do not require client consent for continued representation include those between lawyers who were classmates or who used to practice together and who stay in touch or occasionally get together.

Acquaintances

The opinion states that “[a]cquaintances are relationships that do not carry the familiarity, affinity or attachment of friendships.”  As such, while disclosing an acquaintanceship “may be advisable to maintain good client relations,” it is not required.  Examples include:

  • serving on boards or committees together;
  • going to the same gym or place of worship; and,
  • bumping into each other around town.

Conclusion

Again, the opinion is here.  Give it a read.  Otherwise, use good judgment.  Remember, even if a personal relationship with opposing counsel might not have a snowball’s chance in heck of materially limiting your representation of the client, it might make sense to disclose the relationship anyway.   I’ve seen situations in which a client who learns of the personal relationship after the fact considers the failure to disclose as evidence of the conflict.

Does that make it a conflict?

No.

But as friendly an acquaintance as I am, nobody likes learning from me that a complaint has been filed against them.

Finally, yes.  I’m a fan of the third verse.

Garth Brooks - Friends in Low Places [Remix] by $WAMP BEAT$ on SoundCloud - Hear the world's sounds

 

Conflicts, Confidences & Prospective Clients

Michael 2 Comments

Long ago, I investigated this disciplinary complaint:

  • Person met with Lawyer to discuss representation in a matter;
  • Person shared information about the matter with Lawyer;
  • Person opted not to retain Lawyer;
  • Litigation ensued;
  • Opposing Party retained Lawyer; and,
  • Lawyer represented Opposing Party in the same matter about which Person had consulted with Lawyer.

Back then, Vermont had yet to adopt V.R.Pr.C. 1.18, the rule that sets out a lawyer’s duties to a prospective client.  Thus, as disciplinary counsel, I was left to analyze whether Lawyer had violated the rule that prohibits concurrent representation of clients with conflicting interests or the rule that prohibits representing a client whose interests are materially adverse to those of a in the same or a substantially related matter.

At the time, the general legal principle was that prospective clients were “neither fish nor fowl” for the purposes of the ethics rules.  Thus, conceding that Person was not a current or former client, I argued that the spirit and intent of the conflicts rules rendered Lawyer’s representation of Opposing Party a violation.

Alas, a hearing panel of the Professional Responsibility Board disagreed. The panel concluded that my decision to charge Lawyer with a violation was not supported by probable cause.  Thus, complaint dismissed.

Not long thereafter we got to work on proposing & promulgating V.R.Pr.C 1.18.  It took effect on September 1, 2009.

Under the rule, a “prospective client” is a person who, in good faith, discusses with a lawyer the possibility of forming client-lawyer relationship.  If no relationship ensues, the lawyer’s duty of loyalty is relaxed, but the duty of confidentiality is not.

That is, the lawyer must maintain the prospective client’s confidences as if the person had retained the lawyer.  However, the lawyer may represent someone whose interests are materially adverse to the prospective client, even in a matter that is the same as or substantially related to the matter that was the subject of the consultation, as long as the lawyer did not receive information that “could be significantly harmful” to the prospective client. Depending on the steps that the lawyer took to avoid or minimize the receipt of disqualification, lawyer’s conflict might not be imputed to lawyer’s firm.

Earlier this week, the ABA’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 492. The opinion addresses a lawyer’s obligations to prospective clients. The ABA Journal reported the opinion here.

In my view, the opinion provides clear and helpful guidance on (1) what constitutes a “consultation;” (2) the type of information that would be considered “significantly harmful” and thereby potentially disqualifying in a subsequent matter; and (3) the steps lawyers and firms can take to avoid receiving disqualifying information in an initial consultation.

I suggest reading it. Which is my way of saying that, as I ease back into blogging after the annual mini-hiatus that comes with the CLEs and training that take place this time of year, I’m not going to regurgitate an advisory opinion that is written far better than I could.

Aside: with the adoption of Rule 1.18, I assume that the prospective client has achieved fish or fowl status.  I’m not sure which.

Neither Fish Nor Fowl - Liz Sumner | Life Coach

Don’t remember? Doesn’t matter.

Michael 3 Comments

I’m on pace to receive approximately 1200 inquiries this fiscal year.  That number has remained steady over the past few years.

The most common inquiry topic?

As has remained steady since I switched to bar counsel in 2012, conflicts of interest.

I post today to (hopefully) disabuse lawyers of a notion often expressed in inquiries:  “but Mike, I don’t remember anything about the prior representation, so it can’t be a conflict.”

Caution

That is NOT the standard.

Rule 1.9 sets out a lawyer’s duties to former clients.  Here’s paragraph (a):

  • “A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.”

The test, then, isn’t whether the lawyer remembers anything about the prior representation.  Rather, it’s whether the new person’s matter is the same as or substantially to the matter in which the lawyer formerly represented a client.

Whether matters are “substantially related” is a blog for another day. Or, you can call me.  Or, you can read Comment [3] to Rule 1.9.  For now, I want to focus on a single point:

  • if the new person’s matter is the same as or substantially related to the former client’s matter, hard stop.

Says who?

The Vermont Supreme Court.

In 1997, the Court issued an opinion in State v. Crepault.  Among other things, the Court considered the defendant’s argument that her conviction should be reversed for two reasons, one of which was the State’s alleged failure to disclose that the prosecutor had formerly represented the defendant in a substantially related matter.

In short, the Court concluded that the criminal prosecution was substantially related to a matter in which the prosecutor had formerly represented the defendant.  Then, the Court stated:

  • “Once a substantial relationship between the matters is found, ‘the court need not inquire whether the attorney in fact received confidential information, because the receipt of such information is presumed.'” (citation omitted).

In other words, don’t remember? Doesn’t matter.

Why?

Well, the Court answered that too.

  • “The purpose of the presumption is to avoid ‘put[ting] the former client to the Hobson’s choice of either having to disclose his privileged information in order to disqualify his former attorney or having to refrain from the disqualification motion altogether.’ ”  (citation omitted).

So, when someone asks you to represent them in a matter in which their interests are materially adverse to those of a former client, if the two matters are substantially related, Rule 1.9(a) applies and you need the former client’s informed consent, confirmed in writing, to proceed with the representation of the new client.  It matters not whether you remember anything about the prior representation.

I can hear you now.  “Ok, Mike.  But what if the two matters aren’t substantially related?”

My friends, please.

As a blogger, answering that question poses a conflict of interest! I can’t put all my content into a single post!  So, ’tis a blog for another day.

For now, if two matters are substantially related, don’t forget:

Don’t remember? Doesn’t matter.

 

 

Conflicts & nonlawyer staff

Michael 1 Comment

This situation arose this week via inquiry:

  • Mike – we’ve been approached by a prospective client who is getting divorced.  The spouse’s business deals are a significant issue in the divorce.  Our paralegal used to work at the firm that is representing the prospective client’s spouse. The paralegal may have worked on some business deals for prospective client’s spouse.  Can we represent the prospective client in the divorce?

What say ye?

  • A.  No. Paralegal has a conflict and it’s imputed to every lawyer in the caller’s firm
  • B.  Yes.
  • C.  Yes, because even if paralegal has a conflict, it is not imputed to the lawyers in the caller’s firm. Of course, paralegal must not have any involvement with the divorce or share information about spouse’s business deals.
  • D.  Mike, the answer is “C,” but you probably shared some practical reasons for the caller to think twice about representing the prospective client.

Rule 1.10 is our rule on imputed conflicts.  Per Rule 1.10(a), most of a lawyer’s conflicts are imputed to all other lawyers in the same firm.  Essentially, if Mike can’t represent potential client, neither can any of the lawyers in Mike’s firm.

There are exceptions.  And one covers Mike’s paralegal.

Here’s the first line of Comment [4] to Rule 1.10:

  • “The rule in paragraph (a) also does not prohibit representation by others in the law firm where the person prohibited from involvement in a matter is a nonlawyer, such as a paralegal or legal secretary.”

The Comment continues:

  • “Such persons, however, ordinarily must be screened from any personal participation in the matter to avoid communication to others in the firm of confidential information that both the nonlawyers and the firm have a legal duty to protect.”

This is not a new development in the law of lawyering.  Indeed, the oldest available advisory opinion from the VBA’s Professional Responsibility Committee is Opinion 78-02. In it, the Committee opined:

  • “A firm is not disqualified from handling a case because a paralegal employed in the firm formerly was enrolled in a paralegal training clinic which provided representation to an opposing party in litigation handled by the firm even though the paralegal had some involvement in that representation as long as the paralegal has no present involvement in the case and conveys no confidential information to firm attorneys.”

So, here again is the question I asked above:

What say ye?

  • A.  No. Paralegal has a conflict and it’s imputed to every lawyer in the caller’s firm
  • B.  Yes.
  • C.  Yes, because even if paralegal has a conflict, it is not imputed to the lawyers in the caller’s firm. Of course, paralegal must not have any involvement with the divorce or share information about spouse’s business deals.
  • D.  Mike, the answer is “C,” but you probably shared some practical reasons for the caller to think twice about representing the prospective client.

Under the rule, “C” is correct.  However, there are practical reasons that the caller should think twice about handling the prospective client’s divorce. So, “D” is the best answer.

Using the hypo as a construct, here are two practical considerations that I often share with lawyers who call to discuss potential conflicts.  There might be others.

  1. Even if it isn’t a conflict, do you want to deal with spouse filing a disciplinary complaint against you?
  2. Even if it isn’t a conflict, if the other side moves to disqualify you and your firm, it will cost the prospective client time and money.

Conflicts can be tough.  Don’t hesitate to call if you want to talk one through.

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Ethics: it’s all about the bad grades

Michael

A few weeks ago I posted C in ethics? You’re on the right track.  In it, I offered two cheat codes to stay on the right side of the rules.

The first was my own: don’t lie, cheat or steal.  Nearly every violation falls under one.

The second was Brian Faughnan’s recipe for ethical lawyering.  The recipe?  The 5 C’s:

  • Competence
  • Confidentiality
  • Communication
  • Candor
  • Conflicts

Today I present a third: it’s all about the bad grades.

Alberto Bernabe is a professor at John Marshall Law School in Chicago.  Professor Bernabe teaches torts and professional responsibility.  He maintains a blog for each topic.  His torts blog is here, and his professional responsibility blog is here.  Professor Bernabe is also a frequent member of this blog’s #fiveforfriday Honor Roll in legal ethics.

In response to my post on the 5 C’s, Professor Bernabe shared a story with me.  He urges his students to remember the general principles behind the rules.  He does so by suggesting that they associate those principles with the grades that they do not want to earn in a semester:  4 C’s, 1 D, and 1 F.  That is:

  • Competence
  • Confidentiality
  • Communication
  • Conflicts
  • Diligence
  • Fiduciary

Professor Bernabe’s full blog post on bad grades is here.

I love the semi-mnemonic.  Diligence and the fiduciary duty to clients are as important as the 5 C’s.

Thank you Professor Bernabe for another arrow in the quiver.

  • Don’t lie, cheat or steal
  • Remember the 5 C’s
  • Ethics: it’s all about the bad grades

See the source image         Image result for images of d and f grades      Image result for images of f grade

 

 

 

Monday Morning Answers – #129

Michael

Happy Labor Day!

Is it hot & humid?  Yes!  But, you have a choice how you respond to the weather.  One choice is to bemoan it & sit on the couch all day.  Another is to smile at the thought of one more day to wear shorts, flip-flops, and to be outdoors!  Maybe even by the grill with a cold beverage . . . on a Monday!

I choose the latter.

Friday’s questions are here.  The answers follow the honor roll.  Also, you’ll recall that I asked readers to share the events seared into their memories.  I did so in the context of Friday being the anniversary of Princess Diana’s passing.  As always with my readers, the response was fantastic and significantly outnumbered entries into the quiz.

The most-cited events were to be expected:

  • 9/11
  • the space shuttle Challenger tragedy

A few others mentioned by at least 3 people:

  • JFK assassination
  • Sandy Hook
  • MLK assassination
  • the moon landing
  • Princess Diana
  • Boston Marathon bombings
  • Barack Obama elected

Interestingly, but perhaps not surprisingly given the frequent musical references on this blog, many of you will never forget where you were & what you were doing when you learned that a musician died.  Among the musicians whose deaths were mentioned more than once:

  • Kurt Cobain
  • Jerry Garcia
  • John Lennon
  • Jim Morrison
  • Elvis Presley
  • Prince
  • Tupac Shakur

Anyhow, thank you again for sharing. I love your stories.  Alas, to make the honor roll, you’ve got to answer the questions!

Honor Roll

(responses had to include quiz answers to make the honor roll)

Answers

Question 1

Lawyer called me with an inquiry.  My response included the following words and phrases:  “knowledge,” “violation,”  “substantial question,”  and “honesty, trustworthiness, fitness.”

What did Lawyer call to discuss?

  • A.  Informing a court that a client had testified falsely in a civil matter.
  • B.  Informing a court that a criminal defense client had testified falsely.
  • C.  Reporting another lawyer’s misconduct.  See, Rule 8.3(a).
  • D.  Whether reciprocal discipline would be imposed in Vermont as a result of Lawyer being sanctioned in another state.

Question 2

The conflicts rules are NOT relaxed for:

  • A.  Lawyers who transfer from one private firm to another.
  • B.  Lawyers who move from government practice to private practice.
  • C.  Lawyers who provide short-term pro bono services under the auspices of a program sponsored by a nonprofit or court.
  • D.  All of the above.

Vermont’s rules do not allow for the automatic screening of lateral transfers.  I’ve blogged on that issue here & here.  Later this month, the PRB will consider a rule change that I’ve recommended that would allow a new firm to screen a lateral transfer from another firm.

Our rules allow for screening when a lawyer moves from government practice to private practice.  In addition, Rule 6.5 relaxes the conflicts rules for lawyers who provide short-term pro bono services under the auspices of a program sponsored by a nonprofit or court.

Question 3

You’re at a CLE.   You hear me say:  “yes, it’s okay as long as  (1) your client gives informed consent; (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and (3) information relating to the representation of your client is protected as required by Rule 1.6.”

What did someone ask if it was okay to do?

  • A.  Accept compensation for representing a client from someone other than the client.  See, Rule 1.8(f).
  • B.  Request that guardian be appointed for the client.
  • C.  Represent co-defendants in a criminal matter.
  • D.  Talk to the media in a client’s case.

Question 4

Client provides Lawyer with an advance payment of $2,000.  Lawyer has yet to do any work for Client.

Which is most accurate?

  • A.  The fee agreement must be confirmed in writing.
  • B.  The fee agreement must be confirmed in a writing that is signed by Client.
  • C.  The $2,000 must go into Lawyer’s pooled interest-bearing trust account (“IOLTA”).
  • D.  Lawyer may treat the money as Lawyer’s own if Lawyer confirms in writing (i) that the fee is not refundable; and (ii) the scope of availability or services that Client will receive.    See, Rule 1.5(f) & (g).

Here, A & B are not correct.  The rules do not require standard fee agreements to be reduced to writing.  That being said, I think it’s a bad idea not to.

C is not correct. There’s not enough information in the question to know.  For instance, if the lawyer has complied with Rule 1.5(f) and (g), then the money cannot go into trust.

Many lawyers charge “flat fees” that are “earned upon receipt” and treat the funds as their own upon receipt.  This is ok ONLY IF THE LAWYER COMPLIES WITH RULE 1.5(f) and RULE 1.5(g).  Otherwise, the money must go in trust until earned.

Question 5

Speaking of the JFK assassination . .  .

. . . Jules Mayer was a lawyer in Dallas.  In 1950, Mayer drew up a will for a client.  The will named Mayer as the executor the client’s estate.

The client died in 1967.  A dispute quickly arose, as the client’s family contended that the client had changed his will on his deathbed to remove Mayer as executor.  Mayer refused to make the change and kept the original will.

In 1991, after a lengthy legal battle, a probate court granted the family’s petition to remove Mayer as executor after concluding that he had mismanaged the estate.

Central to the dispute was gun associated with the JFK assassination.  Mayer’s client bought the gun for $62.50.   After winning their legal battle with Mayer, the client’s family sold the gun for $220,000.  Fortunately for the family, Mayer had safeguarded the gun, holding it in trust for 24 years.

Two-part question:

  1. Who was Mayer’s famous client?
  2. Who was the famous victim of the client’s gun?

Mayer’s client was Jack Ruby.  The gun was used on Lee Harvey Oswald.  A story of the gun is in this article in the Las Vegas Sun.

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Of Counsel: Conflicts

Michael

I’ll cut to the chase: as I see it, when an attorney is “of counsel” to a firm, conflicts are imputed between the attorney and lawyers in the firm.  Here’s why I see it that way.

As we know from my intro to “of counsel,” a lawyer so designated must have a “close, regular, and personal relationship” with the firm.  Mutual referrals do not an “of counsel” relationship make. Nor does being brought in for a single case or the occasional consultation.

Next, from this post, we know that given the “close, regular and personal” nature of the “of counsel” relationship, the “of counsel” lawyer will be considered part of the firm for compensation purposes.  In other words, the fee sharing rule doesn’t apply.

A final reason that I see it as I see is that others smarter than I have stated that that’s how they see it.  That is, the ABA’s Standing Committee on Ethics and Professional Responsibility and the Illinois State Bar Association have opined that if lawyers are considered to be in the same firm for fee sharing purposes, then the same goes for conflicts.  The ABA opinion is here, while the Illinois opinion is here.  As the ISBA stated:

  • ” If the lawyers are considered to be in the same law firm for purposes of
    the division of legal fees, it follows that the lawyers should be viewed as being in the same law firm for the purposes of any conflicts of interest, particularly given the close, personal nature of the ‘of counsel’ relationship. Accordingly, the disqualification of one from representation due to a conflict of interest must be imputed to the other.” (emphasis added).

The last sentence makes a critically important point.

Vermont imputes most conflicts to all other lawyers in the firm.  That is, but for a few exceptions, we do not recognize “the wall.”   It’s Rule 1.10, and here’s what it says:

  • “While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rule 1.7 or 1.9, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.”

Or, in language I use when I want to be understood:

  • “The rule is this: if one lawyer can’t take the case because of a conflict with a current or former client, none of the other lawyers in the firm can take it either.”

An aside:, don’t get hung up on the “while lawyers are associated in a firm” bit.  The ABA & Illinois opinions says that “of counsel” counts.

So, the upshot:  Lawyer is “of counsel” to Firm.  Firm wants to represent Client.  However, the conflicts rules would prohibit Lawyer from representing Client, and the conflict isn’t a “personal” conflict.  Lawyer’s conflict is imputed to all lawyers in Firm.

I hear you now: “but Mike, that isn’t fair. She’s only ‘of counsel’, we never even really hear from her or see her.  We’ll wall her off.”

Be careful what you let me hear.

First of all, if you never even really hear from her or see her, then it’s likely misleading to call her “of counsel.”  Second, fair or not, Vermont doesn’t recognize the wall in this scenario. The conflict is imputed to all other lawyers in the firm.

To sum up my posts on the “of counsel” relationship:

  1. All the rules apply.
  2. If the relationship isn’t “close, personal, and regular” it’s likely misleading to call the lawyer “of counsel.”
  3. For the purposes of fee division and conflicts, “of counsel” will be considered part of the firm.

I’m not sure this is a burning issue in Vermont.  Still, a lesson to be drawn might be this:  carefully consider these issues before doling out the “of counsel” designation. It’s not a title to be bestowed willy nilly.

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Monday Morning Answers: #112

Michael

Good morning! Friday’s questions are here.  Aunt Kate would’ve needed her sunglasses as she walked east on Pearl to Abernathy’s this morning.  Alas, and sadly, even though it’s April 9, she also would’ve need her hat, scarf, and mittens.

Spoiler alert: the answers follow today’s Honor Roll.

Honor Roll

(hyperlinks when available.  lack of a link doesn’t reflect a lesser score or lower honors)

Answers

Question 1

Which is a rule?

When lawyers are associated in a firm:

  • A.  only one may have signature authority on a trust account.
  • B.  each is professionally liable for the misconduct of any other.
  • C.  none of them has a duty to report the misconduct of any other.
  • D.  none of them shall knowingly represent a client when any one of them would be prohibited from doing so by the conflict rules, unless the conflict is a personal one and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.  

That is Rule 1.10(a).

Question 2

Many lawyers advertise.   Indeed, an exception to a rule allows a lawyer to “pay the reasonable costs of advertisements.”   It’s one of the exceptions to the rule that prohibits a lawyer from:

  • A.  Giving anything of value to a person for recommending the lawyer’s services.
  • B . Direct contact with prospective clients.
  • C.   Using a misleading firm name.
  • D.  All of the above

Option A is an exception to Rule 7.2(b)’s prohibition on giving anything of value to a person for recommending the lawyer’s service.  Choices B & C are in different rules.

This is a good time to post this reminder: Referral Fee? Think Thrice.

Question 3

Fill in the blank. (verbatim)

There’s a rule that prohibits a lawyer involved in the investigation or litigation of a matter from making “____________________ that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”

  • A.   Any statement
  • B.   An extrajudicial statement
  • C.   A statement during jury selection
  • D.  A social media post.

Rule 3.6(a).  The key word is “extrajudicial.”   

.Question 4

Attorney represents Client in matter vs. Litigant.  Litigant is self-represented and does not have a lawyer.

The matter is close to resolving.  Attorney has reduced a proposed settlement to writing.  Attorney shows it to Litigant.  Litigant asks Attorney what paragraph 2 means.

True or False:  Vermont’s rules authorize Attorney to explain Attorney’s view of the proposed settlement and Attorney’s view of the underlying legal obligations created by paragraph 2.

TRUE.  See, Rule 4.2, Comment [2] (“So long as the lawyer has explained that the lawyer represents an adverse party and is not representing the person, the lawyer may inform the person of the terms on which the lawyer’s client will enter into an agreement or settle a matter, prepare documents that require the person’s signature, and explain the lawyer’s own view of the meaning of the document or the lawyer’s view of the underlying legal obligations.”)

Question 5:

Alan Page was elected to the Minnesota Supreme Court in 1992 and served until reaching mandatory retirement age in 2015.  When first elected, Page had been working for several years as an Assistant Attorney General in Minnesota.

I often blog on the duty of competence.  Prior to becoming a lawyer, Page excelled in a different profession.  Indeed, as a member of the famed “Purple People Eaters,” Page was among the most competent ever to do that particular job.

What was Page’s job prior to becoming a lawyer.

Alan Page was a professional football player. He was the NFL MVP in 1971 and is in the Pro Football Hall of Fame.  Page was a defensive lineman for the Minnesota Vikings (and, at the end of his career, for the Chicago Bears.)  The “Purple People Eaters” were the defensive line for the Vikings teams that went to 4 Super Bowls in the 70’s.

See the source image

 

See the source image

Monday Morning Answers: Carvel & WPIX

Michael 1 Comment

Wow!  I had no idea that a post about Carvel & WPIX would resonate with so many.   Thank you readers for sharing your thoughts! I’ve pasted some of them in below the answers.

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

Honor Roll

  • Karen Allen, Esq.
  • Matthew Anderson, Pratt Vreeland Kennelly & White
  • Evan Barquist, Montroll, Backus, & Oettinger
  • Penny Benelli, Dakin & Benelli
  • Leslie Black, Black & Govoni
  • Robert Grundstein, Esq.
  • Gregg Harris, Assistant Attorney General, Buildings & General Services
  • Glenn Jarrett, Jarrett & Luitjens
  • Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy, JB Kennedy Associates
  • Shannon Lamb, Pratt Vreeland Kennelly & White
  • John Leddy, McNeil, Leddy, & Sheahan
  • Michael Lipson, Esq.
  • Lon McClintock, McClintock Law Offices
  • Jeffrey Messina, Bergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Herb Ogden, Esq.
  • Nancy Rogers, Chamberlin Elementary School
  • James Runcie, Ouimette & Runcie
  • Jay Spitzen, Esq.
  • Allison Wannop, Esq.
  • Thomas Wilkinson, Jr., Esq, Cozen O’Connor
  • Carole Zangla, Grafton County (N.H.) Senior Citizens Council
  • Peter Zuk, Kyocera Copiers, PRB hearing panel member

 

Answers

Question 1

What’s Vermont’s rule?  A lawyer shall:

  • A.  Charge a reasonable fee.
  • B.   Not charge an unreasonable fee.
  • C.   Not charge or collect an unreasonable fee.
  • D.   Not make an agreement for, charge, or collect an unreasonable fee.  V.R.Pr.C. 1.5(a).

Question 2

Fill in the blank.

The third comment to a particular rule defines __________ ___________ as involving “the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representationw would materially advance the client’s position in the subsequent matter.”

It’s the definition of:

  • A.  when matters are “substantially related”.  V.R.Pr.C. 1.9(a), Comment [3].
  • B.   what type of information qualifies as a “client confidence”
  • C.   a concurrent conflict of interest
  • D.  a non-waivable conflict of interest

Question 3

Which is different from the others?

  • A.  Friending an adverse & represented party.
  • B.  Reviewing a potential juror’s Twitter account.
  • C.  Advising a client to “take down” social media posts.
  • D.  Crowdfunding litigation.

“A” is most likely to be a rules violation.  Violations including contacting a represented party and engaging in dishonest conduct.  For more, see these advisory opinions from the District of Columbia, New Hampshire & Massachusetts.

Reviewing a juror’s public Twitter feed is not a violation. Arguably, the duty of competence requires it.  

Crowdfunding is not a violation. I’ve blogged about it here.

Advising a client to “take down” social media posts is not, in and of itself, a violation.  For example, see these advisory opinions from Florida and Pennsylvania

Question 4

Isaiah meets with Lawyer to discuss a potential claim against Lonzo.  Isaiah mentions that Attorney represents Lonzo   Attorney and Lawyer are married to each other.

Which is most accurate in Vermont?

  • A.   Lawyer is prohibited from representing Isaiah.
  • B.   Lawyer is prohibited from representing Isaiah unless Isaiah provides informed consent that is confirmed in writing.
  • C.  Lawyer is prohibited from representing Isaiah and the conflict is imputed throughout Lawyer’s firm.
  • D.  Both Isaiah & Lonzo are entitled to know of the Attorney/Lawyer marriage and, ordinarily, Attorney & Lawyer may not continue unless each client gives informed consent.  V.R.Pr.C. 1.7, Comment [11]

Question 5

A woman named Linda passed away earlier this week.  She was 76 and grew up in Topeka, Kansas.  I don’t know whether anyone who reads this blog ever met her.  But, I’m positive that nearly every single person who reads this blog & who went to law school read about her in class.

What was Linda’s last name?

Linda Brown was 8 years old when she was turned away from Sumner  Elementary School in Topeka.  4 years later, the U.S. Supreme Court issued its decision in Brown v. Board of Education.  Linda’s passing was covered by many outlets, including NPR, the Huffington Post, the Chicago Tribune, and the New York Times.

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*************************************************************************************Comments on WPIX & Carvel’s Ice Cream

  • Your post today brought back some fond memories for me as well, I grew up in Northern NJ and used to watch channel 11 regularly.  As for the Carvel commercials and can still hear “Cookie Puss” and “Fudgie the Whale” in my mind if I close my eyes…
  • Get Smart was a silly favorite of mine.
  • How could you forget the classic (and now most politically incorrect!) F Troop?!  Sgt. O’Rourke, Cpl. Agarn, the Hekawi’s.  Only 65 episodes
  • Carvel’s was almost closest to my house; not as high quality as Marcus Dairy, out on Rt. 7, but closer…and we always had a craving for their “Flying Saucers”, wonderful ice cream sandwiches with crispy chocolate wafers! Bought them by the dozen to put in the freezer. I even remember “Mr. Carvel” who did the tv ads…can’t remember the pitch, but he was an “old guy” with a mellifluous voice.
  • What about The Mod Squad!?!?  Linc was the best! Peggy Lipton won an Emmy!
  • WPIX – Home of the Yankees.  My sister’s roommate in college was Cindy Rizzuto, The Scooter’s daughter.  “Holy Cow, can you believe that?”  AND …..There was nothing I wanted more on my birthday than a Carvel Ice Cream Cake.
  • Did you actually watch Yankee games on WPIX?  How did your Dad allow that?
  • Wow, that Magic Garden song made me laugh out loud. 
  • I did live near a Carvel – and yes – that was a treat – BUT, what I recall was going to a place called Jahn’s  Ice Cream Parlor.  They had “everything but the kitchen sink”  and it served at least 8.  It was served in a mini kitchen sink – with all flavors.  Kind of disgusting, actually.  They also had a .02 cent plain.  This was a glass of seltzer.  I love how your intros each week bring back memories.
  • Your blog on Carvel and WPIX brought back so many memories.  Hours spent watching Abbott and Costello reruns, Superman, Batman and not to mention Chiller Theater.  It was the only station on TV that regularly got me into trouble.  My mom thought Batman was way too violent and Chiller was beyond the pale.  That being said, she had no objections to watching The Bells of St. Mary’s or John Wayne in the Quiet Man, movies that ran almost monthly on WPIX.  Between WPIX in the afternoon and MAD magazine, I expressed my grade school rebellion. Oh those days. 
  • Love your blog this am,Especially since I grew up in Queens and Carvel was the height of taste bud heaven. To this day, I love ice cream! And who says ice cream doesn’t help one’s bp? Here’s to Carvel and WPIX!