Monday Morning Answers: #72

Wow! Huge honor roll this week.  Great job readers!

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

Honor Roll

  • Matthew Anderson, Pratt Vreeland Kennelly & White
  • Penny Benelli, Dakin & Benelli
  • Beth DeBernardi, ALJ, Dept. of Labor
  • Anne Day, Esq.
  • Andrew Delaney, Martin & Associates
  • Laura Gorsky, Law Office of David Sunshine
  • Robert Grundstein, Esq.
  • Glenn Jarrett, Jarrett & Luitjens
  • Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
  • Patrick Kennedy, First Brother, Dealer.Com
  • Nicole Killoran, Vermont Law School
  • Aileen Lachs, Mickenberg, Dunn, Lachs & Smith
  • Jordana Levine, Marsicovetere & Levine
  • Pam Marsh, Marsh & Wagner
  • Lon McClintock, Esq.
  • Jeffrey Messina, Bergeraon, Paradis & Fitzpatrick
  • Hal Miller, First American, Oceanside Division
  • Herb Ogden, Esq.
  • David Sunshine, Esq.
  • Emily Tredeau, Office of the Defender General

Stats

  • Easiest – Question 1
  • Hardest – Question 2

Answers

Question 1

Attorney called me with an inquiry. I listened. Then, I asked:

  • “Is the new case the same as or substantially related to the old one?”

What general area of legal ethics did Attorney call to discuss?

  • A.   Solicitation
  • B.   File Retention
  • C.   Conflicts of Interest, Rule 1.9(a)
  • D.   Fee Agreements

Question 2

Which does not belong?

  • A.  The client agreed.  
  • B.   The result obtained
  • C.   The lawyer’s experience, reputation, and ability
  • D.   The skill requisite to perform the service properly

Rule 1.5 requires fees to be reasonable.  Rule 1.5(a) lists the factors that go into the analysis of whether a fee is reasonable.  Choices B, C, D are listed. Choice A is not.  It is widely accepted that the fact that a client agreed to a fee does not, standing alone, render the fee reasonable.

Question 3

A law firm deposited its own money into its trust account.  Which is most accurate?

  • A.  Each lawyer in the firm violated the Rules of Professional Conduct
  • B.  The firm’s partners (or equivalent thereof) violated the Rules of Professional Conduct
  • C.  It depends whether the deposit exceeded $1000
  • D.  It depends whether the deposit was in an amount reasonably necessary to pay bank charges to the account.  See, Rule 1.15(b).  The rule allows lawyers to deposit their own funds into trust in an amount reasonably necessary to pay bank charges on the account.  The fact that the question asked about a firm does not change the analysis.

Question 4 (Fill in the blank)

Lawyer called me with an inquiry.   I listened.  Then, I said

“As of now, there’s no duty to ENCRYPT routine electronic client communications. But, it won’t be long until the failure to do so is deemed ‘unreasonable’.”  See, Last Thursday’s Post: Encryption & The Evolving Duty to Safeguard Client Information

Question 5

This week’s question 5 is dedicated to a long-time reader.

John Luther Long was born on New Year’s Day in 1861.   He was admitted to the Philadelphia Bar in 1881.

I have no idea if Attorney Long was a competent or ethical lawyer.  However, it seems that he was a competent writer.

In 1898, Attorney Long published a short story about a journey of U.S. Naval Officer Benjamin Franklin Pinkerton.  The story caught the attention of Giacomo Puccini. In turn, Puccini wrote an opera based on Attorney Long’s story.

Puccini’s opera is one of the most famous operas of the 20th century.

Your mission, should you choose to accept it, is to identify the short story/opera.

Madame Butterfly.   Attorney Long’s wiki entry is here.  Puccini’s is here.

Madame Butterfly

Five for Friday: #72

Welcome to #72!

I like to ease into the #fiveforfriday columns with blurbs related to the week’s number.

Math fascinates me.  More specifically, I’m fascinated by my utter lack of understanding of math. Like some (many?) of you, that’s why I went to law school.  But here’s one that even a lawyer can understand.

It gives me great joy to tell you that 72 is a Harshad Number!

A Harshad Number is a number that is divisible by the sum of its digits. So, in this case, 72 is a Harshad Number because it is divisble by (7+2).

For you lawyer/poli sci majors, that means that 72 is divisible by 9, with 9 being the sum of 7 & 2.

For you lawyer/history majors, that means “the answer is 8.”

Onto the quiz!

The rules:

  • There are none. It’s open book, open search engine, use whatever resource you have.  Reading the rules is a good thing!
  • Exception: Question 5.  We try to play that one honest.
  • Team entries welcome.  Creative team names encouraged.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Please e-mail answers to michael.kennedy@vermont.gov
  • Please do not use the “comment” feature to submit your answers (competence includes tech competence)
  • I will post the answers Monday, along with the week’s Honor Roll
  • Please consider sharing the quiz with friends
  • Hashtag & share: #fiveforfriday

Question 1

Attorney called me with an inquiry. I listened. Then, I asked:

  • “Is the new case the same as or substantially related to the old one?”

What general area of legal ethics did Attorney call to discuss?

  • A.   Solicitation
  • B.   File Retention
  • C.   Conflicts of Interest
  • D.   Fee Agreements

Question 2

Which does not belong?

  • A.  The client agreed
  • B.   The result obtained
  • C.   The lawyer’s experience, reputation, and ability
  • D.   The skill requiste to peform the service properly

Question 3

A law firm deposited its own own money into its trust account.  Which is most accurate?

  • A.  Each lawyer in the firm violated the Rules of Professional Conduct
  • B.  The firm’s partners (or equivalent thereof) violated the Rules of Professional Conduct
  • C.  It depends whether the deposit exceeded $1000
  • D.  It depends whether the deposit was in an amount reasonably necessary to pay bank charges to the account

Question 4 (Fill in the blank)

Lawyer called me with an inquiry.   I listened.  Then, I said

“As of now, there’s no duty to ____________ routine electronic client communications. But, it won’t be long until the failure to do so is deemed ‘unreasonable’.”

Question 5

This week’s question 5 is dedicated to a long-time reader.

John Luther Long was born on New Year’s Day in 1861.   He was admitted to the Philadelphia Bar in 1881.

I have no idea if Attorney Long was a competent or ethical lawyer.  However, it seems that he was a competent writer.

In 1898, Attorney Long published a short story about a journey of U.S. Naval Officer Benjamin Franklin Pinkerton.  The story caught the attention of Giacomo Puccini. In turn, Puccini wrote an opera based on Attorney Long’s story.

Puccini’s opera is one of the most famous operas of the 20th century.

Your mission, should you choose to accept it, is to identify the short story/opera.

the-quiz

 

Five for Friday #71

Welcome to the 71st Five for Friday legal ethics quiz!

No math this week.  With all apologies to Jeff Davis, the Official Mathematician of Ethical Grounds, the math facts associated with the number 71 are far too complex for me to wrap my head around.  I’m pretty much limited to “71 is an odd number.”

However, if, like me, you’re into British TV and movies, check out ’71.  It’s about a British soldier who gets separated from his unit while on patrol in Belfast in 1971.  As most of you know, 1971 wasn’t exactly prime-time to vacation in Northern Ireland. So, this isn’t a “date night” movie. Still, I recommend it.

Onto the quiz!

The rules:

  • There are none. It’s open book, open search engine, use whatever resource you have.  Reading the rules is a good thing!
  • Exception: Question 5.  We try to play that one honest.
  • Team entries welcome.  Creative team names encouraged.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Please e-mail answers to michael.kennedy@vermont.gov
  • Please do not use the “comment” feature to submit your answers (competence includes tech competence)
  • I will post the answers Monday, along with the week’s Honor Roll
  • Please consider sharing the quiz with friends
  • Hashtag & share: #fiveforfriday

Question 1

There’s a rule that requires lawyers to provide clients with diligent representation.  A comment to the rule suggests that solos and lawyers in small firms should have:

  • A.   Succession plans
  • B.   Cybersecurity Insurance
  • C.   A bookkeeper who “optimally, works at least part-time”
  • D.   Cloud Based Practice Management Systems

Question 2

The rules establish duties that lawyers owe to four specific types of clients. Rules 1.7 and 1.8 refer to the “current client.”  Rule 1.13 sets out the duties that apply when an “organization” is the client.

What are the two other types of clients to whom lawyers owe ethical duties?

(hint: the answers are not, for example, “divorce clients” or “real estate clients”, or any specific area of practice)

Question 3

Attorney represents Green.  Green intends to enter into a contract with Orange.  Orange is not represented.

The parties and Attorney meet to sign the contract.  Just before signing, Orange asks Attorney “what do you think this contract means if I sign it?”

Which is most accurate?

  • A.    Attorney must decline to answer & must advise Orange to seek legal advice from another lawyer
  • B.   Attorney must decline to answer & may advise Orange to seek legal advice from another lawyer
  • C.   Attorney must ask Green whether Green consents to Attorney answering the question
  • D.   If Attorney explains that she represents an adverse party & is not representing Orange, she may explain to Orange her own view of the meaning of the contract & its underlying legal obligations.

Question 4

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

  • “Sounds to me like you don’t have a duty to do anything.  You fall under the exception to the rule, because it’s information relating to the representation of your client and is protected from disclosure.  However, a comment to the rule says that you should encourage your client to, especially if it won’t negatively impact client’s case to do so.”

Question: What did I mean when I said “encourage your client to?”  To do what?

Question 5

Jeff Kerr dropped out of law school after two years. So, it appears to me that disciplinary authorities in Fictional World don’t have jurisdiction over Kerr.  If they did, I wonder whether they’d prosecute him.

Using the alias “Nick Easter,” Kerr connived his way onto a civil jury and manipulated the jury throughout a trial.  On several occasions, “Easter” and his girlfriend secretly met with each side to the litigation and offered to sway the jury for the right price.

For some reason, the subject of the trial is different in the movie than it was in the book, which was a runaway best-seller.  But, the plot is the same.  In each, Easter and his girlfriend are motivated by a desire to get revenge against Big Industry.

Your mission, should you choose to accept it, has two parts

  • Identify the industry at issue in the book.
  • Identify the industry at issue in the movie.

Hint:  As a former high school basketball coach, I’m compelled to mention that, in the movie, the defense team’s consultant who deals with Easter and his girlfriend is also one of Fictional World’s most famous high school basketball coaches.

the-quiz

Monday Morning Answers: Kentucky Derby Edition

Friday’s questions are HERE.  As usual, when it comes to cashing on the Derby, I’m left Always Dreaming.

But congrats Jeanne Kennedy! My mom had Always Dreaming to win AND to place, which was good enough for a tidy little payoff and, more importantly, honorable mention Honor Roll status.  Given her success and Saturday’s sloppy track, I guess my mother is a mudder.

Spoiler alert – the answers to Friday’s questions appear immediately after the Honor Roll.

HONOR ROLL

Answers

Question 1

Pletcher is a former client of Lawyer’s.  Lawyer took Pletcher’s case on a contingent fee. By rule, what must Lawyer maintain for 6 years following the termination of the representation of Pletcher?

  • A.    A copy of Pletcher’s file
  • B.    A copy of Pletcher’s fee agreement
  • C.    Records of any property or funds held in connection with the representation of Pletcher.  V.R.Pr.C. 1.15(a)(1)
  • D.   Nothing.

Note: the rules do not require lawyers to maintain copies of closed files.  Rather, Rule 1.16(d) requires a lawyer to surrender the file upon the termination of a representation.  If a lawyer chooses to keep a copy (which the lawyer’s liability policy might require) the lawyer is keeping a copy for the lawyer’s own purposes, not because the rules require it.

Question 2

Baffert is a long time client of Attorney. Last night, Baffert met with Attorney for legal advice.  During the meeting, Baffert told Attorney some bad things that he intends to do tomorrow.  As a result, Attorney reasonably believes that Baffert will commit a crime that is certain to result in substantial injury to the financial interests of Lukas.  Attorney has no reason to believe that Lukas or anyone else will suffer bodily injury.

Which is most accurate?

  • A.   Attorney must disclose Baffert’s intent
  • B.   Attorney must not disclose Baffert’s intent
  • C.   If Baffert is using or has used Attorney’s services to further the crime, Attorney must disclose Baffert’s intent.  V.R.Pr.C. 1.6(b)(2)
  • D.  If Baffert is using or has used Attorney’s services to further the crime, Attorney may disclose Baffert’s intent.

The key here is whether Baffert is using or has used Attorney’s services to further the crime.  If so, disclosure is mandatory.

Question 3

It’s Monday afternoon.

Late Saturday evening, Client was arrested and charged with DUI.  Fortunately (I guess) for Client, he had just won $2500 as a result of McCracken’s stunning victory in the 2017 Kentucky Derby. So, on Monday morning, Client retained Lawyer who agreed to handle the DUI for a $2500 flat fee.  Client and Lawyer decided not to confirm the fee agreement in writing.

Now, on Monday afternoon, which is most accurate?

  • A.   Lawyer violated the rules.
  • B.   Lawyer may not deposit the $2500 into her IOLTA account
  • C.    Lawyer must deposit the $2500 into her IOLTA
  • D.   A & B

The rules do not require the fee agreement to be reduced to writing.  However, since it was not reduced to writing, it does not qualify as a type of advanced fee that Lawyer may treat as “earned upon receipt.”  See, V.R.Pr.C. 1.5(e)(2).  We are left, then, with a fee that is paid advanced.  Per Rule 1.15(c), the $2500 must go into trust until earned.

Question 4

Attorney represents Irish War Cry.  Opposing Counsel represents Classic Empire.

Reviewing discovery that has been provided by Opposing Counsel, Attorney finds information that Attorney concludes was inadvertently produced.

Which is most accurate?

  • A.   Attorney must notify Opposing Counsel.  V.R.Pr.C., 4.4(b)
  • B.   Attorney may notify Opposing Counsel
  • C.   Attorney must first consult with Irish War Cry
  • D.   Attorney’s duties under the Rules of Professional Conduct necessarily depend upon whether the information falls under the evidentiary privilege that Classic Empire shares with Opposing Counsel.

Question 5

Mick is a criminal defense attorney.  His ex-wife is a prosecutor who bears a striking resemblance to one of the players in last week’s Question 5: Mona Lisa Vito.

Mick represents Louis Roulet, an ultra-rich playboy who is accused of a brutal crime. At first, Mick is convinced that Roulet is innocent. However, as the case progresses, Mick’s doubts grow.  Eventually, Roulet tells Mick that he (Roulet) previously committed a different crime . . . a murder for which one of Mick’s former clients, Jesus Martinez, is serving life in prison!

Identify the movie in which Mick confronts the many ethical dilemmas associated with his knowledge that a current client committed a crime for which a former client has been convicted.

(Of lesser importance is whether Mick’s driver, another former client, might have grounds to complain that Mick has charged him an unreasonable fee.)

The Lincoln Lawyer.

Lincoln Lawyer.jpg

Five for Friday: #70 & The Kentucky Derby

Welcome to 70th Five for Friday!

This blog might help me find a new career in math. Turns out, 70 is a sphenic number. As I suspect regular readers Nicole Killoran and Allison Wannop might be able to tell you, a sphenic number factors as 3 distinct primes. In this case (2 x 5 x 7).

Also, did you know that 70 is the smallest weird number?  I didn’t, mainly because I didn’t know that weird numbers were an official thing.  As best as I can tell, a number (X) is “weird” if its non-X divisors add up to more than X, but no subset of the divisors adds up to exactly X.  I wonder if the so-called “weird” numbers are lobbying for a new name.

Nothing like a little Friday morning math to make a legal ethics quiz seem easy!  So, let’s get to it!

Rules

  • There are none. It’s open book, open search engine, use whatever resource you have.  Reading the rules is a good thing!
  • Exception: Question 5.  We try to play that one honest.
  • Team entries welcome.  Creative team names encouraged.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Please e-mail answers to michael.kennedy@vermont.gov
  • Please do not use the “comment” feature to submit your answers
  • I will post the answers Monday, along with the week’s Honor Roll
  • Please consider sharing the quiz with friends
  • Hashtag & share: #fiveforfriday

Question 1

Pletcher is a former client of Lawyer’s.  Lawyer took Pletcher’s case on a contingent fee. By rule, what must Lawyer maintain for 6 years following the termination of the representation of Pletcher?

  • A.    A copy of Pletcher’s file
  • B.    A copy of Pletcher’s fee agreement
  • C.    Records of any property or funds held in connection with the representation of Pletcher
  • D.   Nothing.

Question 2

Baffert is a long time client of Attorney. Last night, Baffert met with Attorney for legal advice.  During the meeting, Baffert told Attorney some bad things that he intends to do tomorrow.  As a result, Attorney reasonably believes that Baffert will commit a crime that is certain to result in substantial injury to the financial interests of Lukas.  Attorney has no reason to believe that Lukas or anyone else will suffer bodily injury.

Which is most accurate?

  • A.   Attorney must disclose Baffert’s intent
  • B.   Attorney must not disclose Baffert’s intent
  • C.   If Baffert is using or has used Attorney’s services to further the crime, Attorney must disclose Baffert’s intent.
  • D.  If Baffert is using or has used Attorney’s services to further the crime, Attorney may disclose Baffert’s intent.

Question 3

It’s Monday afternoon.

Late Saturday evening, Client was arrested and charged with DUI.  Fortunately (I guess) for Client, he had just won $2500 as a result of McCracken’s stunning victory in the 2017 Kentucky Derby. So, on Monday morning, Client retained Lawyer who agreed to handle the DUI for a $2500 flat fee.  Client and Lawyer decided not to confirm the fee agreement in writing.

Now, on Monday afternoon, which is most accurate?

  • A.   Lawyer violated the rules.
  • B.   Lawyer may not deposit the $2500 into her IOLTA account
  • C.    Lawyer must deposit the $2500 into her IOLTA
  • D.   A & B

Question 4

Attorney represents Irish War Cry.  Opposing Counsel represents Classic Empire.

Reviewing discovery that has been provided by Opposing Counsel, Attorney finds information that Attorney concludes was inadvertently produced.

Which is most accurate?

  • A.   Attorney must notify Opposing Counsel
  • B.   Attorney may notify Opposing Counsel
  • C.   Attorney must first consult with Irish War Cry
  • D.   Attorney’s duties under the Rules of Professional Conduct necessarily depend upon whether the information falls under the evidentiary privilege that Classic Empire shares with Opposing Counsel.

Question 5

Mick is a criminal defense attorney.  His ex-wife is a prosecutor who bears a striking resemblance to one of the players in last week’s Question 5: Mona Lisa Vito.

Mick represents Louis Roulet, an ultra-rich playboy who is accused of a brutal crime. At first, Mick is convinced that Roulet is innocent. However, as the case progresses, Mick’s doubts grow.  Eventually, Roulet tells Mick that he (Roulet) previously committed a different crime . . . a murder for which one of Mick’s former clients, Jesus Martinez, is serving life in prison!

Identify the movie in which Mick confronts the many ethical dilemmas associated with his knowledge that a current client committed a crime for which a former client has been convicted.

(Of lesser importance is whether Mick’s driver, another former client, might have grounds to complain that Mick has charged him an unreasonable fee.)

Footnote:   I predict that the horses referenced in this quiz will finish in the same order of appearance in the quiz.

the-quiz

Five for Friday: #69

69 is about how many games the Sox will win this season if their offense continues at its current anemic pace.  Let the chant begin: Bring back Papi!

Papi

I didn’t post many columns this week, with “many” defined as “any.”  I was in D.C. for ABA Day and let it get the best of my time.  The topics this year: LSC funding and changing the laws to allow the VA to do more to provide homeless veterans with access to legal services.  For more info, e-mail me.  However, I wouldn’t miss the Friday column, so here we go:

Rules

Rules

  • There are none. It’s open book, open search engine, use whatever resource you have.
  • Exception: Question 5.  We try to play that one honest.
  • Team entries welcome.  Creative team names encouraged.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Please e-mail answers to michael.kennedy@vermont.gov
  • Please do not use the “comment” feature to submit your answers
  • I will post the answers Monday, along with the week’s Honor Roll
  • Please consider sharing the quiz with friends
  • Hashtag & share: #fiveforfriday

Question 1

A comment to one of the rules includes the following language.

  • “a lawyer should adopt reasonable procedures, appropriate for the size and type of  firm and practice, to determine in both litigation and non-litigation matters the persons and issues involved. Ignorance caused by a failure to institute such procedures will not excuse a violation of this rule.”

What’s the topic of the rule?

Question 2

Solo just opened a new practice.  Solo used to work for the Alliance Firm.

At new practice, Solo represents Vader in matter against Luke.

Luke asks Alliance for representation.   Prior to asking, Luke has never been represented by Alliance.

Which is most accurate?

  • A.    Alliance may not represent Luke.
  • B.    If Vader is a former client of Alliance, Alliance may not represent Luke
  • C.    If Vader is a former client of Alliance, Alliance may not represent Luke absent Vader’s informed consent.
  • D.    If Vader is a former client of Alliance, Alliance may represent Luke unless (1) the matter is the same as or substantially related to a matter in which it represented Vader; and (2) any lawyer working at Alliance has information about Vader that the rules prohibit from being disclosed.

Question 3

Vermont’s rules prohibit lawyers from asking a person other than to client to voluntarily refrain from giving information to another party.  The rule does not apply if (a) the person is a relative, employee, or agent of the client; AND (b) the lawyer reasonably believes that the person’s interests will not be adversely affected by choosing to refrain from giving the information.

The rule applies to all types of cases. However, the Reporter’s Notes caution lawyers that conduct permitted by the rule:

  • A.  Is discouraged.
  • B.  Adversely reflects on a lawyers’ fitness to practice law if done regularly
  • C.  Might constitute obstruction of justice in a criminal case
  • D.  Likely violates the rule on dealing with the unrepresented person

Question 4

Attorney called me with an inquiry.  I listened, then responded by saying “generally, it’s prohibited if one of your significant motives for doing so is pecuniary gain. Though, if motivated by pecuniary gain, it’s okay if the person is a lawyer or has a close family/personal/professional relationship with you.”

What general topic did Attorney call to discuss?

Question 5

Vincent Gambino meandered back & forth across the line between “ethical” and “not ethical.”  But, talk about tech competence! (positraction is technology!) Plus, in the end, Gambino’s trial skills demonstrated an ability to provide competent & diligent representation.   Question 5 invokes Gambino.

The question:  What color am I?

  • I am a color.  Attorney Gambino asked witness Mona Lisa Vito about a similarity between the 1963 Pontiac Tempest and the 1964 Buick Skylark. Specifically, he asked if both GM models were available in me.  Ms. Vito answered “They were!”

What color am I?

 

 

 

 

 

 

Five For Friday: #68

Welcome to Friday. #68.

Did you know that 68 is the highest known number that is the sum of EXACTLY TWO different sets of prime numbers?  7+61, and, 31 + 37.  All higher even numbers are sums of THREE different sets of prime numbers. This is exactly why I went to law school.

Rules

  • None. It’s open book, open search engine, open-the-office-door-and-ask-a-colleague
  • For fun, try to play Question 5 honest, but it’s not a requirement this week.
  • Team entries welcome.  Creative team names encouraged.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Please e-mail answers to michael.kennedy@vermont.gov
  • Please do not use the “comment” feature to submit your answers
  • I will post the answers Monday, along with the week’s Honor Roll
  • Please consider sharing the quiz with friends
  • Hashtag & share: #fiveforfriday

Questions 1 & 2

There is a rule that prohibits an act, but only if the act is done to gain an advantage in a certain type of case.

Your mission: identify the act & the type of case.

Question 3

There is a rule that requires a lawyer to “take steps to the extent reasonably practicable to protect a client’s interests . . ..”

You’ll find the specific language that I quoted in the rule that applies:

  • A.  upon the termination of a representation
  • B.  when the client suffers from a diminished capacity
  • C.   when the client has submitted false testimony or evidence to a tribunal
  • D.   when the client fails to communicate with the lawyer

Question 4

Galen & Meb are contemplating a lawsuit.  They asked Attorney to represent them both in the matter.  Attorney had inkling that a conflict would arise down the road.

Attorney shared his concerns with both Galen & Meb.  Then, sitting with both, Attorney asked Galen & Meb to agree in advance to waive any conflict that might arise.  Both Galen & Meb agreed to waive any future conflict.

Which is most accurate?

  • A.   Attorney violated the rules – VT doesn’t allow advanced waivers
  • B.   Attorney violated the rule on client confidences
  • C.   Attorney violated the rules by failing to provide Galen & Meb an opportunity to seek independent legal advice.
  • D.   If a conflict arises, the rules might require Attorney to withdraw despite the waiver.

Question 5

Several years ago, a PRB case resulted in a debate about Rule 4.1.  In particular, the extent to which it applied to undercover investigations supervised by government attorneys.

Which gives me a hook to this question.

Earlier this week, the New York Attorney General announced that an undercover operation had resulted in the arrest of man named “Newman.”  Newman is alleged to have spent many years defrauding businesses by pretending to be an architect.

In a tweet announcing the arrest of the fake architect, New York’s Attorney General acknowledged the obvious Seinfeld connections.  In fact, the NY AG tweeted that the undercover operation had been given a code name that reflected its Seinfeld ties.

What’s the code name?

Thank you Debbie Emerson, my fake doctor, for the tip!!

the-quiz

 

 

 

Five for Friday: #67

Week 67.  A perfect week to honor the 50th anniversary of 1967’s The Impossible Dream.

Yaz

To the quiz we go!

But first, I interrupt my regularly scheduled blog for an important announcement:

  • Congratulations LAURA GORSKY!!!  Laura is a long-time reader and frequent member of the #fiveforfriday Honor Roll.  She’s been working as a paralegal for David Sunshine for many years.  This week, it was my honor and pleasure to send Laura a letter notifying that she had passed the Vermont Bar Exam. Congrats Laura!

Now, back to my regular programming.

Rules

  • There are none. It’s open book, open search engine, open-the-office-door-and-ask-a-colleague
  • For fun, try to play Question 5 honest, but it’s not a requirement this week.
  • Team entries welcome.  Creative team names encouraged.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Please e-mail answers to michael.kennedy@vermont.gov
  • Please do not use the “comment” feature to submit your answers
  • I will post the answers Monday, along with the week’s Honor Roll
  • Please consider sharing the quiz with friends
  • Hashtag & share: #fiveforfriday

Question 1

Which is most accurate?  A contingent fee:

  • A.   Must be fair
  • B.   Must be in a writing
  • C.   Must be in a writing signed by the client
  • D.  Must not be calculated until after the client’s expenses are deducted

Question 2

Attorney called with an inquiry.  I listened. I replied “It doesn’t matter that your client ‘initiated’ it, the rule still applies.  And the fact that you cc’d your client on the e-mail is not the same as consent.”

What topic did Attorney call to discuss?

Question 3

Fill in the blank.

In an advisory ethics opinion okaying the use of a particular type of technology, the Philadelphia Bar Association concluded that:

  • “_________________ sites can be a beneficial source of funds allowing the public to assist in the assertion of valid legal claims that might otherwise go without recourse. Thus, great care should be taken to make sure that the initial development of such sites not affect the ability of subsequent persons to use such a source.”

Question 4

North Carolina gained national attention for an amendment to its rule that went into effect last month.  If Vermont were to follow the Tar Heel state’s lead, nearly all lawyers would have a duty that, today, only applies to a subset of the bar.  It’s the rule that, right now, relates to:

  • A.  “Admiralty” lawyers being allowed to advertise their area of specialization
  • B.  Conflicts for defense attorneys who move from a public defender’s office to a state’s attorney’s office
  • C.   Television ads by lawyers who represent large classes of plaintiffs
  • D.  A prosecutor’s duty to disclose evidence that tends to negate the guilt of an accused.

 

Question 5

Earlier this week, three news media organizations were named co-winners of the 2017 Pulitzer Prize for Explanatory Journalism.  The organizations were The Miami Herald, The McClatchy Group DC, and The International Consortium of Investigative Journalists.  

The Pulitzer reflected their efforts on reporting a story that involved, among other things, Vladimir Putin, David Cameron, and offshore shell companies. The story came to light after a whistleblower “leaked” 11.5 million documents that a law firm had stored electronically. Review of the documents resulted in the law firm’s name partners being arrested and jailed on suspicion of money laundering.

By what name is the scandal better known?

the-quiz

 

Monday Morning Answers: #66

The questions for the 66th #fiveforfriday are HERE.   The answers & Honor Roll follow today’s bonus Honor Roll.

Today’s bonus edition of Honor Roll recognizes the lawyers who finished Saturday’s RunVermont Half Marathon Unplugged.  It was great to see so many lawyers on the course.  I apologize in advance for missing anyone, but as best as I could tell, the following Vermont lawyers finished the race:

#fiveforfriday Honor Roll

Answers

Question 1

True of false.

For the purposes of the rule that prohibits conduct that is degrading or disruptive to a tribunal, a deposition is not a tribunal.

FALSE.  V.R.Pr.C. 3.5, Comment 5 (“the duty to refrain from degrading or disruptive conduct applies to any proceeding of a tribunal, including a deposition.”) See, Rule 1.0(m).

Question 2

Attorney called me with an inquiry.  I listened.  I responded “well, i understand why you’re concerned, but I’m not sure that Opposing Counsel committed a violation.  The general consensus is that the rule is less stringent during negotiations.”

What rule?  The rule on:

  • A.  Communicating with a Represented Person
  • B.  Conflicts of Interest when Representing Co-Defendants
  • C.  Truthfulness in Statements to Others.  I’ve blogged about “puffery” and the Ethics of Negotiations.
  • D.  Notifying Counsel of an Inadvertent Production

Question 3

Later today I’m doing a CLE for the Vermont Association for Justice.  Let’s see if they’re paying attention this morning.

By rule, in matters where a lawyer charges a contingent fee:

  • A.    The fee must be calculated before expenses are deducted
  • B.    The fee must be calculated after expenses are deducted
  • C.    The rule is silent as to whether the fee is to be calculated before or after           expenses are deducted
  • D.    The fee agreement must specify whether the fee will be calculated before or after expenses are deducted.  V.R.Pr.C. 1.5(c) (Contingent fee shall be in writing & shall state whether expenses will be deducted before or after the contingent fee is calculated.)

Question 4

Fill in the blanks.  The same word goes in each blank. Since we’re all lawyers here, credit only for filling in the correct word, not just any old word 3 times.

GHOSTWRITING.  I’ve blogged on the arguments for & against.

I appeared at a CLE. I made an argument in favor of interpreting the rules so as to permit ghostwriting.   Some people disagreed with me. They responded that ghostwriting should be considered a violation for two reasons:

  1.   It’s misrepresentation by omission; and,
  2.  It gives “unrepresented” litigants an unfair advantage in the form of a liberal interpretation of their pleadings.

I countered with arguments from an ABA formal advisory opinion, as well as with an argument that permitting ghostwriting will increase access to legal services.

Question 5

I’ll start with the question.  Then, after the question, there’s a discussion and a hint.

Milton A. Rudin was a lawyer in Beverly Hills.  “Mickey,” as he was known, represented Famous Client from the mid-50’s thru the late 80’s.

In 1991, author Kitty Kelley released “Nancy Reagan: The Unauthorized Biography.” In it, she suggested that Mrs. Regan had many private luncheons and long afternoons alone with Famous Client at the White House.  Also, in the book, she thanked several “sources,” including Rudin.

Rudin sued for Kelley and her publisher for libel.  He denied that he had disclosed any information relating to his representation of Famous Client.  (there’s the hook to get this into an ethics blog!) Interestingly, years earlier, and on behalf of Famous Client, Rudin had sued Kelley to prevent her releasing a book about none other than Famous Client.

Who was Mickey Rudin’s most Famous Client?

Frank Sinatra.

Sinatra

Discussion & Hint

Whether at one of my CLEs or in response to a #fiveforfriday quiz, nothing generates discussion like the pop culture questions.  Often, people urge me to use pop culture questions that don’t involve tv, movies, music, or fictional attorneys   In other words, pop culture questions that don’t involve pop culture.  I’ve heard “Mike, I don’t ________:”

The blank is often filled in with:

  • go to the movies
  • watch tv
  • watch sports
  • listen to music
  • listen to _____ (insert musical genre)
  • know anything about history
  • know anything about pop culture after the year 2000
  • know anything about pop culture before the year 2000
  • know anything about pop culture

I get it.  I promise, I try to do my best to vary the questions.  Some hint’s for today’s:

  • For those of you who’ve heard me warn about 3 types of clients, each named after a pop star, Famous Client is one of the 3.  And Famous Client is not Blondie or Taylor Swift.
  • For you old-timers, Famous Client was world famous before World War II ended
  • His daughter had a #1 hit in 1968
  • For you millennials, Famous Client was the original Timberlake, right down to the fact that he rose to fame as part of band before embarking on a mega-successful solo career.
  • Jessica Simpson covered his daughter’s #1 hit in the 2005 movie version of The Dukes of Hazzard.
  • If you are reading this quiz, I’d be shocked if you haven’t heard of Famous Client

Five for Friday: #66

Week 66.

Today’s cold & rain conspire to leave me wishing that my view of #66 was this one:

IMG_1093

Rules

  • There are none. It’s open book, open search engine, open-the-office-door-and-ask-a-colleague
  • For fun, try to play Question 5 honest, but it’s not a requirement this week.
  • Team entries welcome.  Creative team names encouraged.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Please e-mail answers to michael.kennedy@vermont.gov
  • Please do not use the “comment” feature to submit your answers
  • I will post the answers Monday, along with the week’s Honor Roll
  • Please consider sharing the quiz with friends
  • Hashtag & share: #fiveforfriday

Question 1

True of false.

For the purposes of the rule that prohibits conduct that is degrading or disruptive to a tribunal, a deposition is not a tribunal.

Question 2

Attorney called me with an inquiry.  I listened.  I responded “well, i understand why you’re concerned, but I’m not sure that Opposing Counsel committed a violation.  The general consensus is that the rule is less stringent during negotiations.”

What rule?  The rule on:

  • A.  Communicating with a Represented Person
  • B.  Conflicts of Interest when Representing Co-Defendants
  • C.  Truthfulness in Statements to Others
  • D.  Notifying Counsel of an Inadvertent Production

Question 3

Later today I’m doing a CLE for the Vermont Association for Justice.  Let’s see if they’re paying attention this morning.

By rule, in matters where a lawyer charges a contingent fee:

  • A.    The fee must be calculated before expenses are deducted
  • B.    The fee must be calculated after expenses are deducted
  • C.    The rule is silent as to whether the fee is to be calculated before or after           expenses are deducted
  • D.    The fee agreement must specify whether the fee will be calculated before or after expenses are deducted

Question 4

Fill in the blanks.  The same word goes in each blank. Since we’re all lawyers here, credit only for filling in the correct word, not just any old word 3 times.

I appeared at a CLE. I made an argument in favor of interpreting the rules so as to permit ____________________.   Some people disagreed with me. They responded that __________________ should be considered a violation for two reasons:

  1.   It’s misrepresentation by omission; and,
  2.  It gives “unrepresented” litigants an unfair advantage in the form of a liberal interpretation of their pleadings.

I countered with arguments from an ABA formal advisory opinion, as well as with an argument that permitting _________________ will increase access to legal services.

Question 5

I’ll start with the question.  Then, after the question, there’s a discussion and a hint.

Milton A. Rudin was a lawyer in Beverly Hills.  “Mickey,” as he was known, represented Famous Client from the mid-50’s thru the late 80’s.

In 1991, author Kitty Kelley released “Nancy Reagan: The Unauthorized Biography.” In it, she suggested that Mrs. Regan had many private luncheons and long afternoons alone with Famous Client at the White House.  Also, in the book, she thanked several “sources,” including Rudin.

Rudin sued for Kelley and her publisher for libel.  He denied that he had disclosed any information relating to his representation of Famous Client.  (there’s the hook to get this into an ethics blog!) Interestingly, years earlier, and on behalf of Famous Client, Rudin had sued Kelley to prevent her releasing a book about none other than Famous Client.

Who was Mickey Rudin’s most Famous Client?

Discussion & Hint

Whether at one of my CLEs or in response to a #fiveforfriday quiz, nothing generates discussion like the pop culture questions.  Often, people urge me to use pop culture questions that don’t involve tv, movies, music, or fictional attorneys   In other words, pop culture questions that don’t involve pop culture.  I’ve heard “Mike, I don’t ________:”

The blank is often filled in with:

  • go to the movies
  • watch tv
  • watch sports
  • listen to music
  • listen to _____ (insert musical genre)
  • know anything about history
  • know anything about pop culture after the year 2000
  • know anything about pop culture before the year 2000
  • know anything about pop culture

I get it.  I promise, I try to do my best to vary the questions.  Some hint’s for today’s:

  • For those of you who’ve heard me warn about 3 types of clients, each named after a pop star, Famous Client is one of the 3.  And Famous Client is not Blondie or Taylor Swift.
  • For you old-timers, Famous Client was world famous before World War II ended
  • His daughter had a #1 hit in 1968
  • For you millennials, Famous Client was the original Timberlake, right down to the fact that he rose to fame as part of band before embarking on a mega-successful solo career.
  • Jessica Simpson covered his daughter’s #1 hit in the 2005 movie version of The Dukes of Hazzard.
  • If you are reading this quiz, I’d be shocked if you haven’t heard of Famous Client

the-quiz