Monday Morning Answers #106

Welcome to Monday!

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

My team had a busy weekend.  We won our quarterfinal game Friday night.  Then, Saturday afternoon, the guys held off Edmunds, 25-23, in a semi-final thriller. That proved to be the end of the line, however, as Albert D. Lawton steam-rolled us in Saturday night’s championship.  Despite the loss, I’m super proud of the players.  They’ve grown so much since November and, even though defeat was apparent by halftime, they competed their tails off until the final buzzer.

And, yes, I already miss them and their questions.

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Honor Roll

  • Karen AllenKaren Allen Law
  • Matthew AndersonPratt Vreeland Kennelly & White
  • Alberto Bernabe, Professor, John Marshall Law School
  • Andrew Delaney, Martin & Associates
  • Robert Grundstein
  • Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
  • Jeanne Kennedy, My MomJB Kennedy Associates
  • Deb KirchweyLaw Office of Deborah Kirchwey
  • Shannon LambPratt Vreeland Kennelly Martin & White
  • Kevin LumpkinSheehey Furlong & Behm
  • Lon McClintockMcClintock Law Offices
  • Jack McCullough, Project Director, Mental Health Law Project
  • Jeffrey MessinaBergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Herb Ogden
  • Jim Runcie, Runice & Ouimette
  • Robert Tyler, Associate General Counsel, University of Virginia
  • Thomas Wilkinson, Jr., Cozen O’Connor

 

Answers

Question 1

There’s a rule that applies only to a specific type of lawyer.  Per a comment to the rule, it’s a type of lawyer who “has the responsibility of a minister of justice and not simply that of an advocate.”

What type of lawyer?

Prosecutor in a criminal case.  Rule 3.8.

Question 2

(this one keeps happening, so I’m going to keep asking)

Attorney called me with an inquiry.  Attorney said “Mike, I represent a witness.  The defendant’s attorney keeps contacting my client directly. I asked him to stop.  He said he doesn’t need my permission because my client is only a witness, not a party.  Is he right?”

What was my response?

  • A.   Yes, he’s right.
  • B.   The rule is unclear.
  • C.   The rule is unclear, but, by case law, no, he’s wrong.
  • D.  He’s wrong. The rule applies to any person represented in a matter.  

Rule 4.2 applies whenever a lawyer knows that a person, party or not, is represented in a matter.

Question 3

How long do the rules require lawyers to keep copies of advertisements?

  • A.   2 years
  • B.   6 years.
  • C.   Wait, what? We have to keep copies of advertisements?
  • D.  They don’t.  The 2-year retention requirement was repealed in 2009.

Question 4

True or false.

If a lawyer sells her practice, the rules require her to cease the private practice of law in the geographic area in which she practiced.

True.  I don’t know that I understand the rationale, but it’s in the rule.  It’s Rule 1.17(a).

Question 5

Monday is Presidents’ Day.

25 U.S. Presidents have been lawyers.

Name the most recent U.S. President to have argued a case before the United States Supreme Court prior to becoming president.

Richard Nixon.  In 1966, Nixon argued on behalf of the Hill family in Time, Inc. v. Hill.

See the source image

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Five for Friday #106

Welcome to 106!

So, some of you know that I used to coach high school basketball.  I retired after the 2013-14 season, having spent 15 seasons coaching the varsity at my alma mater, South Burlington High School.

This year, I got back into it.  I took the job as the coach of the “B” team at Frederick H. Tuttle Middle School.

By the way, you know a sure sign of age?  When you coach at a school that is named after someone who worked in the system when you attended it.  Back when I was a student at South Burlington Middle School, Mr. Tuttle was the district’s superintendent.

Anyhow, back to 106.

I’ve noticed lots of differences between coaching varsity and middle school.  Lots.  One that stands out: the questions.  I love the guys, but, wow!  Can they ask questions!! Sometimes I feel like it’s 106 questions per day.

Often, the questions have nothing to do with what we’re doing. For instance, during yesterday’s practice, I reviewed a drill before we started it.  When I was done, I asked “any questions?”  A few hands went up.

(Middle schoolers still raise their hands.  It’s awesome.  High schoolers weren’t exactly into raising their hands.)

I called on a player.  He said “coach, do we have to wear a tie to our game on Saturday?”

Nothing to do with the drill.  You get the idea.

We had a lot of fun this year.  We worked hard, improved, and, using basketball as vehicle, focused on 3 keys to life: be on time, be prepared, be respectful. We even won a few games in the process, finishing 10-4 in advance of this weekend’s season ending tournament.

Last night was our final practice.  Over the course of the season, I realized that I didn’t miss coaching too much.  I likely won’t coach again next year. But, last night, I also realized that, once the season ends, I’ll miss the players.  Over a season, a routine develops.  Relationships develop.  I’ll miss those.

And, as I thought about it, I’ll miss the 106 daily questions.  The questions represent an innocence, almost a naivete, that won’t last as the players transition from tweens to teens.  As proud as I am of how they’ve grown as individuals and a team, there’s a certain melancholy that comes from knowing that, soon, they’ll no longer raise their hands, no longer ask the beautifully simple questions.  And for whatever reason, I find that somewhat sad.

I’ll end with my favorite question.

In middle school, the “A” and “B” teams play back-to-back.  At our first home game, I gathered the “B” players in the locker room as the final few minutes of the “A” game ticked off the clock.  I went over the 3 goals we had for the game.  When I finished, I said “any questions?”

Now, when a varsity coach asks “any questions,” the response, if any, tends to be something to do with the game plan.  For example, “coach, did you say we’re trapping ball screens or not?” So, when a hand went up, I assumed it’d be a question along those lines.

Wrong.

I called on the player.  He said “coach, when we go out to the court, should we turn the lights off in the locker room?” I paused, thinking he must be joking. Given my varsity experience, I expected another player to tell him to be quiet, albeit not in those terms.

But then I realized that 12 sets of eyes were intently focused on me, waiting for the answer.

I responded “why would we turn the lights off?”

“Coach, it would save energy.”   Several nods of agreement around the locker room.

Again, I paused.  Finally, I said “good question, but we don’t have to turn the lights off.  As soon as we go out to the court, the ‘A’ team guys are coming back into the locker room, so let’s leave the lights on for them.”

The player who had asked looked me straight in the eyes, pointed at me, and said “Coach, that’s why you’re the coach!”  Then, the team bounded out of the locker room eager to take on that day’s opponent.

Never discourage questions. Especially from kids.  Someday you’ll miss the 106 that drove you crazy yesterday.

Onto the quiz!

Rules

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

There’s a rule that applies only to a specific type of lawyer.  Per a comment to the rule, it’s a type of lawyer who “has the responsibility of a minister of justice and not simply that of an advocate.”

What type of lawyer?

Question 2

(this one keeps happening, so I’m going to keep asking)

Attorney called me with an inquiry.  Attorney said “Mike, I represent a witness.  The defendant’s attorney keeps contacting my client directly. I asked him to stop.  He said he doesn’t need my permission because my client is only a witness, not a party.  Is he right?”

What was my response?

  • A.   Yes, he’s right.
  • B.   The rule is unclear.
  • C.   The rule is unclear, but, by case law, no, he’s wrong.
  • D.  He’s wrong. The rule applies to any person represented in a matter.

Question 3

How long do the rules require lawyers to keep copies of advertisements?

  • A.   2 years
  • B.   6 years.
  • C.   Wait, what? We have to keep copies of advertisements?
  • D.  They don’t.  The 2-year retention requirement was repealed in 2009.

Question 4

True or false.

If a lawyer sells her practice, the rules require her to cease the private practice of law in the geographic area in which she practiced.

Question 5

Monday is Presidents’ Day.

25 U.S. Presidents have been lawyers.

Name the most recent U.S. President to have argued a case before the United States Supreme Court prior to becoming president.

the-quiz

 

 

 

 

Competent Advice & Privacy Settings

Rule 1.1 requires lawyers to provide clients with competent representation.  As nearly everyone who has read my blog twice knows, my position is that competence includes tech competence.

It’s also my position that a lawyer has a duty to provide a client with competent advice as to the impact, if any, that the client’s social media will have on a matter.

Let me be clear.

I often hear “but, Mike, I don’t want to have a Facebook account.”  I am not saying that you are required to.  Rather, I’m saying that you should know that your clients most likely do and, further, that information posted to a client’s Facebook account might impact the matter in which you are representing the client.

Here’s the latest.

Per the ABA Journal, a New York court ruled that the defense may discover photos that a personal injury plaintiff posted to Facebook and set as “private.”  The opinion is here.

The upshot:  it’s likely not competent to advise clients “don’t worry, as long as you keep it private, the other side won’t be able to access it.”

The case is one in which the plaintiff fell from a horse.  She sued, alleging that the defendant’s defective mounting of the stirrups caused the fall.  Among other things, plaintiff contends that her injuries prohibit her from many activities that she used to enjoy.

During her deposition, plaintiff testified that, prior to her fall, she had regularly posted photos to Facebook.  The defense requested access to the photos, which plaintiff had set to “private.”  Plaintiff declined to provide access.

The defense moved to compel production of the photos.  The defense argued that the photos bore on the credibility of plaintiff’s assertion that she had previously engaged in the activities that, now, she claimed she could not.

Plaintiff’s attorney countered that the single public photo on plaintiff’s Facebook account did not contradict her deposition testimony.  As such, the argument went, the defense had not established that access to the private portion of the account was likely to lead to the discovery of relevant information.

The trial court compelled production.  An appellate court modified the order to compel, limiting it only to photos that plaintiff intended to introduce at trial.  In the end, the New York Court of Appeals reinstated the trial court’s order. In so doing, the Court set out the various factors that a trial court should consider in response to a motion to compel production of information stored electronically on a social media platform.

I won’t go into the court’s decision in length.  Here are two key takeaways:

  1. As I’ve often said, electronically stored information is no different from any other information.  Or, in this case, photographs posted to Facebook are no different than photos that grandma slid behind plastic in that old, musty, album.
  2. A quote from the NY Court’s opinion (citations deleted):
    • “Plaintiff suggests that disclosure of social media materials necessarily constitutes an unjustified invasion of privacy. We assume for purposes of resolving the narrow issue before us that some materials on a Facebook account may fairly be characterized as private.But even private materials may be subject to discovery if they are relevant. For example, medical records enjoy protection in many contexts under the physician-patient
      privilege  But when a party commences an action, affirmatively placing
      a mental or physical condition in issue, certain privacy interests relating to relevant medical records – including the physician-patient privilege – are waived. For purposes of disclosure, the threshold inquiry is not whether the materials sought are private but whether they are reasonably calculated to contain relevant information.”

Remember: competence includes tech competence.

Social Media

Monday Morning Answers #105

I’m not positive, but methinks this week’s is the largest Honor Roll ever!

Friday’s questions are HERE.  Thanks to all who sent in responses.   I especially enjoyed hearing & reading so many wonderful stories of grandmothers & grandfathers who sound so similar to mine.  Today’s answers follow the honor roll.

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Honor Roll

Answers

Question 1

Each of the following words is in the name of its own rule. Three of the rules involve the same type of ethics issue.   Which is associated with a different ethics issue than the other three?

  • A.  Prospective
  • B.  Meritorious
  • C.  Current
  • D.  Former

Rule 3.1 governs meritorious claims.  Prospective, Current, and Former are types of clients for the purposes of the conflicts rules.

Question 2

Attorney called me with an inquiry.  She said “Mike, I have some questions about mental impressions, as well as internal notes and memoranda.”  Most likely, what issue did Attorney call to discuss?

  • A.  The duty to report a client’s fraud
  • B.  The duty to act competently to safeguard client data stored in the cloud
  • C.   Duties to a client who suffers from a diminished capacity
  • D   File delivery & the question of “what is the file?”

I might have phrased this one poorly.  Option “A” certainly could happen, as a lawyer’s mental impressions and notes might include information that must be revealed pursuant to Rule 1.6(b).   However, here, I was getting at whether an attorney’s notes and mental impressions are part of “the file.”  For more on this topic, including a link to an ABA Formal Advisory Opinion, see this post.

Question 3

Fill in the blank. (two words)

Lawyer called with an inquiry.  Lawyer said “client said she’s fine with it, so do you think that I have ________  ___________?”

I replied “Well, ‘she’s fine with it’ isn’t exactly the definition of _________   _________.  Per the rules, it’s an agreement to a proposed course of conduct after you’ve adequately communicated & explained the material risks, and reasonably available alternatives to, the proposed course of conduct.”

Informed Consent, Rule 1.0(e).

Question 4

Attorney called me with an inquiry.  Attorney was concerned that her she and her firm had been “pwned.”  What did we discuss?

Whether Attorney & Firm had:

  • A.   suffered a breach of electronically stored client data.
  • B.   fallen for a trust account scam.
  • C.   violated the rules while responding to a negative online review.
  • D.  been duped by an adversary who intentionally posted “fake evidence” on a social media platform.

Hello gamers! I wasn’t familiar with the term “pwned” until I read the ABA Journal’s cybersecurity tips.

Question 5

Hint: in honor of my grandfather’s Chicago roots, and in anticipation of a blog I intend to post next week . . .

Lawrence Mattingly practiced law in Illinois.  Once, he arranged a meeting between a client and federal agents/prosecutors who were trying to build a tax evasion case against the client.  During the meeting, the client claimed “I’ve never had much of an income.”

Later, Attorney Mattingly provided Treasury agents with a letter in which he conceded that his client had, in fact, earned a substantial income over the previous 4 years. The “Mattingly Letter” was admitted at trial and used as evidence against the client.  The client was convicted and sent to prison.

Who was the client?

Al Capone

Five for Friday #105

Welcome to # 105!

Today I’m going to write Eddie Bonneau.   Eddie was my grandfather, my mom’s dad.  I called him “Papa.”

How am I tying this to #105?  Good question.

My grandfather isn’t 105.  His birthday was February 1 and, if still alive today, he’d have just turned 102. It only feels like 105 years since I’ve seen him.  So there’s that.

Plus, using a prop to which I frequently resort in this column, the final digit in 105 is, well, 5.  And VT Route 5 runs through Bradford, which is where my grandfather lived for the final 50 (or so) years of his life.

Good enough for me.

I’m going to share two stories about Papa.  But, first, some background.

Eddie Bonneau was born in Chicago.  Somehow, his family ended up in Lebanon, New Hampshire.  Papa dropped out of Lebanon High School after his sophomore year.  Like many of French-Canadian descent, he went to work in a woolen mill.

When he was 21, he married my grandmother.  She was 17 and had recently graduated from high school.  She was the bread-winner: Nanny made $7 per week, Papa $5.

Within 10 years, they’d had 4 kids and moved across the river & up the valley to Bradford, Vermont.  My grandfather opened a grocery store.

The grocery store lasted only until the early 1950’s.  My grandfather was deep in debt. His creditors took over.  Papa decided against bankruptcy, concluding that it was morally and ethically wrong.

Over the next few years, he and my grandmother had 2 more kids.  For the rest of his life, my grandfather worked here and there: some jobs as a door-to-door salesman, one as a butcher, another as a clerk at the 5 & Dime.

I remember him as being the smartest guy I knew. He didn’t talk much, but when he did, you listened. What he didn’t have in school smarts, he had 100 times over in common sense.  He was a voracious reader & keen follower of current events.

Papa loved cribbage.  And cards.  He dutifully played endless rounds of pinochle with my grandmother and various family & friends, even though my grandmother usually whupped him, no matter their respective partners.

Papa wasn’t active.  I don’t think I ever saw him in anything but dark pants and a button-up white shirt.  That’s how he dressed even when he & my grandmother took us to Lake Winnipesaukee, where he’d sit on a bench reading a newspaper while we swam.  Actually, once he wore his clothes off the bench & into a boat.  We were at Niquette Bay on Lake Champlain.  He helped me catch my first fish.  A little pumpkinseed.

Besides not being active, Papa smoked.  He was an equal opportunity smoker.  He smoked for breakfast, he smoked for lunch, and he smoked for dinner.  He smoked on the bench at the beach.  I vividly recall mornings at his breakfast table, where we’d pretend not to hear his daily coughing fits that he thought the wafer-thin bathroom walls muffled.

Emphysema eventually killed him in 1994.

Before it did, my brother and I have an enduring memory of visiting our grandparents for a family event, only to have Papa disappear. We went to find him.  He had wheeled his oxygen tank to the barn to sneak a cigarette.  By then we were in our late teens, maybe 20’s.  We didn’t feel compelled to make a mandatory report to our grandmother, mom, or aunts.

You see, one thing Papa loved, but lacked, was quiet.  My mom has 4 sisters and a brother. Unlike my grandfather, one might accurately describe my grandmother and her 6 children as the sharing type.  As in, they’ve always shared pretty much every thought that ever entered their heads.  So if Papa wanted a smoke in the quiet of the barn, who were my brother and I to stop him?

Now, the stories.

First, like I said, my grandfather was super smart.  And he was proud.  Not vain, but proud. I visited my grandparents during the holiday break of my first year in law school. Once we sat down, he said, after a long drag, “so Mister, tell me a law.”

I had no ready answer. He wasn’t impressed.

Next, for special occasions, my grandmother would send me, my brother, and our cousins checks.  Sometimes $3, sometimes $5.  She’d include a card with a note to “buy yourself an ice cream!”  Once, in law school, I lost one of my $3 checks. I was too afraid to tell her, so I let the Irish side of me take over.  Meaning, I just ignored it, figuring that ignoring it would make the issue go away.

Epic fail.  Eventually, my mother called to ask why I hadn’t cashed Nanny’s check. I had to fess up.  Again, Papa wasn’t impressed with someone who cared so little about $3 as to lose a check.

A few months later, Nanny & Papa gave me $300 as gift for my graduation from law school.  For people like them, it was an astonishingly staggering amount.  Think about it: it’s 25 times as much as their combined weekly income as newlyweds. I cashed the check immediately.

About a month later, I was back in Vermont and went to visit my grandparents. First words out of Papa’s mouth: “guess you didn’t lose that one.”

I don’t how to end this post.  I’m not sure how it ties to 105, other than it doesn’t.  I just felt like writing about my grandfather.  I miss him.  He was a good man. He had nothing, but made sure that his kids had something, which, besides my parents, is one of the main reasons that I have anything.

Thanks for indulging me.

67FCDEE4-4A0B-4B58-9AB7-151422E4069A

Onto the quiz!

Rules

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

Each of the following words is in the name of its own rule. Three of the rules involve the same type of ethics issue.   Which is associated with a different ethics issue than the other three?

  • A.  Prospective
  • B.  Meritorious
  • C.  Current
  • D.  Former

Question 2

Attorney called me with an inquiry.  She said “Mike, I have some questions about mental impressions, as well as internal notes and memoranda.”  Most likely, what issue did Attorney call to discuss?

  • A.  The duty to report a client’s fraud
  • B.  The duty to act competently to safeguard client data stored in the cloud
  • C.   Duties to a client who suffers from a diminished capacity
  • D   File delivery & the question of “what is the file?”

Question 3

Fill in the blank. (two words)

Lawyer called with an inquiry.  Lawyer said “client said she’s fine with it, so do you think that I have ________  ___________?”

I replied “Well, ‘she’s fine with it’ isn’t exactly the definition of _________   _________.  Per the rules, it’s an agreement to a proposed course of conduct after you’ve adequately communicated & explained the material risks, and reasonably available alternatives to, the proposed course of condcut.”

Question 4

Attorney called me with an inquiry.  Attorney was concerned that her she and her firm had been “pwned.”  What did we discuss?

Whether Attorney & Firm had:

  • A.   suffered a breach of electronically stored client data.
  • B.   fallen for a trust account scam.
  • C.   violated the rules while responding to a negative online review.
  • D.  been duped by an adversary who intentionally posted “fake evidence” on a social media platform.

Question 5

Hint: in honor of my grandfather’s Chicago roots, and in anticipation of a blog I intend to post next week . . .

Lawrence Mattingly practiced law in Illinois.  Once, he arranged a meeting between a client and federal agents/prosecutors who were trying to build a tax evasion case against the client.  During the meeting, the client claimed “I’ve never had much of an income.”

Later, Attorney Mattingly provided Treasury agents with a letter in which he conceded that his client had, in fact, earned a substantial income over the previous 4 years. The “Mattingly Letter” was admitted at trial and used as evidence against the client.  The client was convicted and sent to prison.

Who was the client?

the-quiz

 

Five for Friday #104: Finally.

Welcome to #104!

No, I’m not going to write about Phineas & Ferb’s summer vacation.  Even if it’d be hilarious to inexplicably devote a second column to Bowling for Soup. Also, no Super Bowl comments, except “Go Eagles.”  Any other sentiment is like rooting for the Galactic Empire and its Death Star to squash Luke, Leia, and the Rebel Alliance.

You see, today, the 1 doesn’t matter.  It’s the 04.

This post will be the final on my life as a Red Sox fan.

Like 75, 78, and 86,  I associate 04 with the Sox.  And, oddly, I associate what should have been the happiest moment of my Sox fandom with the end of any real joy in rooting for them.

The setting: October 2004, Boston Red Sox v. New York Yankees in a best-of-7 American League Championship Series. New York won the first 3 games, with the third a shellacking that prompted The Boston Globe’s venerable Bob Ryan to write of the Sox:  “They are down, 3–0, after last night’s 19–8 rout, and, in this sport, that is an official death sentence. Soon it will be over, and we will spend another dreary winter lamenting this and lamenting that.”

I felt the same.  I mean, we were only a year removed from Grady Little’s disastrous decision to let Pedro Martinez pitch the 8th inning of Game 7 of the 2003 ALCS – a game (and series) that the Sox lost in typically gut-wrenching fashion. In fact, in ’04, I so strongly agreed with Ryan’s post-Game 3 assessment that, initially, I opted against accompanying my brother to Boston for Game 4.  I wanted no part of an inevitable series-clinching win by the Yankees.

But I also suffer from Irish-Catholic guilt.  And, the only thing worse than witnessing a New York win would be the wrath of my mother for leaving my little brother to make the drive to & from Boston all by himself.  Even though he was 35.   So, I went.

Believe it or not, we didn’t have tickets.  Back then, there was a bar at Fenway called the Crown Royal Club. The main entrance was on the street, and you could enter without having a game ticket, but the bar was part of Fenway.  My brother knew a woman who worked there.  She told him she’d get us into the game.

Yeah, right.  I fully expected we’d end up watching on tv from the bar.

Wrong.

After milling about the Crown Royal Club for a bit, some guy appeared and signaled us to follow him.  He escorted us thru the kitchen to a nondescript door.   As we entered, I hoped it opened back to Landsdowne Street and not to a jail cell.  Shockingly, it opened into Fenway Park.  We were in! Not having tickets, Patrick and I watched from spots we staked out in the Standing Room Only section.

The rest is history.  I won’t bore you with the details.  Suffice to say, Boston tied the game in the bottom of the 9th in what is my favorite sequence in sports history. I simply cannot describe the noise or the unbridled joy that rocked the stadium as Dave Roberts slid safely home.

At that moment, I don’t know if we expected the Sox to win.  My guess is that most of Red Sox Nation thought it nothing more than a cruel prelude to another heart-break.  But, for a fleeting moment, we’d landed a punch square to the mighty Yankees’ collective nose.  And we were going to let it soak in before they recovered to knock us out.

But they didn’t.  Boston won.  Not only the game, but, miraculously, the next 3 games, and the World Series that followed.  The curse had officially ended.  They’d win the World Series again in 2007 and 2013.  (Notably, my brother went on to be one of the final 25 candidates for President of Red Sox Nation.)

Am I happy about the 3 titles?  Of course.  But, for whatever reason, I miss the fan that I was that day in ’04 when the First Brother and I drove to Fenway without tickets.

Back then, as Sox fans, all we had was hope.  Of course, it was a hope tempered by a dread born of experience.  Not unlike Charlie Brown steadfastly trusting Lucy not to yank the ball away, we annually invested nearly all of our emotional energy in a baseball team that, as it had since 1918, regularly found new & innovative ways to devastate its fans.

Occasionaly there were  moments of pure joy on the road to devastation.  That was the Dave Roberts moment.  The utter glee at landing a punch that staggered the bully before he knocked you into oblivion.

I miss those moments.

My good friend JJ is Hand Of Bar Counsel, this blog’s official King in the East, and Lord Protector of House Badger.  He’s also a huge Sox fan.  As he told me yesterday, now, it’s house money, not our hearts & souls.  Not only that, in a way, we’ve become the Yankees.

He’s right.  Sure 3 championships in 10 years is great.  But, this year, I didn’t even take the afternoon off to watch the Red Sox playoff games on TV.  Try to explain that to the me who cried in 75, 78, and 86, and who drove to Boston in ’04, without tickets, to watch a game we’d surely lose.

For me, as a Sox fan, it’ll never be better than that day in ’04 when we didn’t have titles or a massive payroll, but we had the pure joy of momentarily staggering the Yankees before they knocked us out yet again.

Only they didn’t.  And, in a bizarre way, I wonder if I’d be happier if they had.

Onto the quiz!

Rules

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

Under the rules, which is treated differently from the others?

  • A.   Client intends to commit a criminal act that Lawyer reasonably believes is likely to result in the death of someone other than Client;
  • B.   Client intends to use Lawyer’s services to commit a criminal act that is reasonably certain to result in substantial injury to the financial interests of another;
  • C.   Client intends to commit a criminal act that Lawyer reasonably believes is likely to result in substantial bodily harm to Client.
  • D.  Trick question.  The rule treats them all the same.

Question 2

Fill in the blank.  (2 words)

”                             are not prohibited in domestic relations matters which involve the collection of (i) spousal maintenance or property division due after a final judgment is entered; or (ii) child support and maintenance supplement arrearages due after final judgment, provided that court approves . . .”

Question 3

Lawyer called me with an inquiry. I listened, then said “yes, for the sole purpose of paying service charges or fees on the account, and only in an amount necessary for that purpose.”

What did Lawyer call to ask?

Question 4

Lawyer represents Client and, in order to act, needs Client’s “informed consent, confirmed in writing.”

Lawyer calls Client.  Client gives informed consent over the phone, but does not provide it in writing.  Lawyer promptly transmits to Client a writing that confirms Client’s spoken informed consent.

For the purposes of the rules, has Client provided “informed consent, confirmed in writing?”

Question 5

A timely question.

Okay campers, rise & shine, and don’t forget your booties cuz it’s coolllllddd out there today!

You’re an attorney who has been assigned to represent Phil Connors.  Phil is a weatherman who has been charged with simple assault.  He allegedly punched Ned Ryerson in the face.

Phil tells you that he doesn’t remember much about Ryerson, but that the two went to high school together.  The State’s discovery reflects that Ryerson, or “Needlenose Ned,” did the whistling-belly-button trick at the senior talent show, and even dated Phil’s sister until Phil told him not to.  Bing!

Phil tells you that he hasn’t seen Ryerson in years.  However, lately, they’ve run into each other often on the street.

As a competent and diligent lawyer, you argue to the prosecutor that your client isn’t a criminal, but a Renaissance man!  After all, he’s very recently learned how to speak French, play piano, and carve ice sculptures.

What movie are you in?

Bonus: what song does your client wake to every morning?

the-quiz

 

 

 

 

 

 

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.

Monday Morning Answers: #103

Friday’s questions are here.  The answers follow today’s honor roll.

But first, one of my favorite things about this blog is using the intro to the #fiveforfriday quizzes to forge connections with readers  Here are a few reader responses to my post on Route 103, country stores, and corner markets:

  • 103 was Papa & Nanny’s P.O. Box their entire time in Bradford! (guess who sent that one)
  • I know the Vermont Country Store in Rockingham very well – in fact, my lovely and talented wife was employed there until giving birth to our first son.
  •  I know that 5 and 10 in Bradford (I think if just closed a year or 2 ago) – One of our favorite farms is just up the road called 4 Corners.

  • Yes, the Vermont country stores are awesome.  We visit the Warren store with some regularity on our way to or from Rochester, VT.  
  •  On 103 in Chester, in addition to a bunch of small stores, there is Lisai’s–a grocery store which somewhat fits your description of the Fruit Store, but without such a slope to its uneven wooden floor: low ceilings, narrow (but not constricted) aisles, one door in and one door out that seem reversed, a little bit of a lot of things, and great meat.  

Honor Roll

Answers

Question 1

At a seminar, you’re checking your phone when you hear me say “knowledge of the violation raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness.”

What rule am I discussing?

The rule on mandatory reporting.  Rule 8.3

Question 2

Which is associated with a different rule than the other 3?

  • A.  A single source for identification
  • B.  Records showing running account balances
  • C.  Timely reconciliation
  • D.  Lateral transfers

Per Rule 1.15(A)(a), each of A, B, C, must be part of your trust accounting system.  “Lateral transfers” involve conflicts of interest.

Question 3

The civil matter James v. Irving is pending in the Vermont Superior Court.  Attorney represents James.  Lawyer represents Irving.

Attorney filed a motion for summary judgment.  Lawyer reviewed the motion and realized that Attorney failed to cite to an opinion of the Vermont Supreme Court that supports Attorney’s argument.  Lawyer knows that the opinion is directly adverse to Irving’s position.

Lawyer explained Attorney’s oversight to Irving.  Irving instructed Lawyer not to cite to the Supreme Court opinion in their cross-motion for summary judgment.

Which is most accurate?

  • A.  Lawyer must report Attorney to disciplinary authorities
  • B.  Lawyer must abide by Irving’s instruction not to cite to the opinion
  • C.  It’s up to Lawyer whether to cite to the opinion
  • D. Lawyer must disclose the opinion to the trial court.  Rule 3.3(a)(1)

Question 4

A lawyer called me with an inquiry. I listened, then said “it seems that you qualify as ‘necessary.’  Therefore, you can’t do it unless (1) it’s about an uncontested issue; (2) it relates to the value of legal services you provided; or (3) disqualifying you would cause substantial hardship to your client.”

What is “it“?

Testifying during a trial in which the lawyer is also acting as an advocate.  Rule 3.7

Question 5

Velma Kelly is a celebrity showgirl who was charged with murdering her husband & sister.

Roxie Hart is a would-be celebrity who was charged with murdering a lover who falsely promised to have connections that would make her as big a star as Velma.

Billy Flynn is the media-loving lawyer who represented them both.  He did so despite the fact that, in exchange for leniency, Velma testified against Roxie.  Specifically, Velma read to the jury incriminating excerpts from Roxie’s diary.

That’s right: Billy represented a murder client in a case in which one of the witnesses against her was another of his murder clients.

Both Velma and Roxie were acquitted.  Mainly because Billy Flynn knowingly introduced false evidence that the prosecution had authored the incriminating diary entries.

In 2003, Catherine Zeta-Jones won the Academy Award for Best Actress for playing Velma.  Renee Zellweger and Queen Latifah also received Oscar nominations for their roles in the same movie.

I don’t know whether Billy Flynn was charged with an ethics violation.  If he had been, his defense might have been to ask the disciplinary prosecutors why they were bothering with “all that jazz.”

Name the movie.

See the source image

Five for Friday #103

Welcome to #103!

As I spent the week thinking of how I’d work “103” into this column, I kept coming back to one thing: for whatever reason, I associate “103” with VT Route 103.

I don’t know that I’ve driven VT 103 more than 1.03 times in my entire life.  But, as I did a few years ago, I stumbled upon The Vermont Country Store in Rockingham.  I’d never even heard of the place.  Turns out, it’s one of the more successful and well-known country stores in the state.

The memory of my lone visit to the Vermont Country Store made me think of general stores. I love them.  Not just general stores, but country stores and corner markets.  I love ’em all.

When I was really young, my grandfather worked at Hill’s 5 & 10 in Bradford.

  • Aside: read the previous sentence again.  When you do, the voice in your head should NOT be saying “Hill’s 5 and 10.”  It’s “Hill’s five and dime.”  That’s how we talked back then.

Hill’s wasn’t exactly a country store/market.  It was more like a 70’s version of a Dollar General. But it was next to a little market called The Fruit Store.

I LOVED The Fruit Store.  I don’t know why it was called The Fruit Store.  It was a meat market that sold whatever other staples they felt like stocking on any given day.  Most of you can picture exactly how it felt:  newspapers on the porch, uneven wooden floors, no rhyme or reason to the merchandise or layout,  and aisles so tiny that some were, quite literally, one way.  With “one way” being “whichever way the first person into the aisle wants to go.”  If you’re second, move.  Even if it means walking backwards out of the aisle.

Have you ever been in one of those old markets where you lose about 7 feet of elevation walking from the front door to the meat counter in the back? That’s what I remember about The Fruit Store.

I’m nostalgic for the vibe I felt in old country stores & corner markets.  You know:

  • that pot is regular, we’ll brew one of decaf if you’d like
  • half & half is in the cooler, next to the night crawlers. if you use the last of the carton, we’ll open a new one.
  • faded pictures of teams from the local high school that won states 10, 20, 65 years ago.

There are some wonderful general stores and country markets all over Vermont.  My summer treks to the NEK usually include stops at Scampy’s in West Charleston.  The 100 on 100 isn’t complete without a stop at The Warren Store for, you know, carb loading. When you go to the ocean and forget to buy your mom some saltwater taffy,  the Route 4 Country Store in Quechee is a great place to pick some up on the way home.  The Steeple Market in Fairfax has some of best cuts of meat around and is one of two Official Markets of Ethical Grounds.  The other – Beaudry’s Market in Huntington, a gem operated by the Pecors for about the last 40 years.

Even Burlington used to be full of great little neighborhood markets.  I know a few readers of this blog whose families shopped religiously at Merola’s.

By the way, if you’re ever in Hendersonville, North Carolina, say hi to my dad and stop by Mast General Store.  I can’t stand shopping, but I easily spend an hour in Mast’s each time I visit. It’s got a huge section devoted to old school penny candy that makes you feel like you’ve travelled back in time.

Anyhow, musing on the number 103 resulted in a cascade of thoughts of general stores and corner markets.

Jiffy Marts, Jolly’s, and Maplefields are fine.  TV screens on the gas pumps, walk-in coolers with the latest craft beers, a dizzying choice of coffee flavors, and stainless steel canisters serving as endless reservoirs of half & half.  But, I will always have a special place in my heart for the good ol’ country store.

Onto the quiz!

Rules

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

At a seminar, you’re checking your phone when you hear me say “knowledge of the violation raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness.”

What rule am I discussing?

Question 2

Which is associated with a different rule than the other 3?

  • A.  A single source for identification
  • B.  Records showing running account balances
  • C.  Timely reconciliation
  • D.  Lateral transfers

Question 3

The civil matter James v. Irving is pending in the Vermont Superior Court.  Attorney represents James.  Lawyer represents Irving.

Attorney filed a motion for summary judgment.  Lawyer reviewed the motion and realized that Attorney failed to cite to an opinion of the Vermont Supreme Court that supports Attorney’s argument.  Lawyer knows that the opinion is directly adverse to Irving’s position.

Lawyer explained Attorney’s oversight to Irving.  Irving instructed Lawyer not to cite to the Supreme Court opinion in their cross-motion for summary judgment.

Which is most accurate?

  • A.  Lawyer must report Attorney to disciplinary authorities
  • B.  Lawyer must abide by Irving’s instruction not to cite to the opinion
  • C.  It’s up to Lawyer whether to cite to the opinion
  • D. Lawyer must disclose the opinion to the trial court

Question 4

A lawyer called me with an inquiry. I listened, then said “it seems that you qualify as ‘necessary.’  Therefore, you can’t do it unless (1) it’s about an uncontested issue; (2) it relates to the value of legal services you provided; or (3) disqualifying you would cause substantial hardship to your client.”

What is “it“?

Question 5

Velma Kelly is a celebrity showgirl who was charged with murdering her husband & sister.

Roxie Hart is a would-be celebrity who was charged with murdering a lover who falsely promised to have connections that would make her as big a star as Velma.

Billy Flynn is the media-loving lawyer who represented them both.  He did so despite the fact that, in exchange for leniency, Velma testified against Roxie.  Specifically, Velma read to the jury incriminating excerpts from Roxie’s diary.

That’s right: Billy represented a murder client in a case in which one of the witnesses against her was another of his murder clients.

Both Velma and Roxie were acquitted.  Mainly because Billy Flynn knowingly introduced false evidence that the prosecution had authored the incriminating diary entries.

In 2003, Catherine Zeta-Jones won the Academy Award for Best Actress for playing Velma.  Renee Zellweger and Queen Latifah also received Oscar nominations for their roles in the same movie.

I don’t know whether Billy Flynn was charged with an ethics violation.  If he had been, his defense might have been to ask the disciplinary prosecutors why they were bothering with “all that jazz.”

Name the movie.

the-quiz