Monday Morning Honors #230

Welcome to Monday.

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

Honor Roll

  • Karen Allen, Karen Allen Law
  • Evan BarquistMontroll, Backus & Oettinger
  • Penny Benelli, Dakin & Benelli
  • Andrew DelaneyMartin, Delaney & Ricci Law Group
  • Glenn Jarrett, Jarrett & Luitjens
  • John Leddy, McNeil Leddy & Sheahan
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeff MessinaBergeron, Paradis, Fitzpatrick
  • Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
  • Herb Ogden, Esq.
  • Keith RobertsDarby Kolter & Nordle
  • Jim Runcie, Ouimette & Runcie
  • The Honorable John Valente, Vermont Superior Judge
  • Zachary York, Legal Assistant, Sheehey Furlong & Behm

 Answers

Questions 1 & 2

Everyone knows I often mention the 7 Cs of Legal Ethics.  Earlier this week, I spoke with student-clinicians at Vermont Law School’s South Royalton Legal Clinic.  Their quiz on the 7 Cs included this question:

  • “Let’s imagine that upon passing the bar you accept a job with a state agency. Your first assignment is familiar: it involves a matter you worked on while in the clinic.  Which 2 Cs of legal ethics jump to mind?”

The scenario is a variation of a scenario that can, and often does, confront any lawyer.  So, Friday readers have the same task: identify the 2 Cs of Legal Ethics implicated by the scenario.

Conflicts of Interest and Confidentiality

Question 3

 Your office employs Non-Lawyer.  In a new matter, Non-Lawyer has a conflict that, if Non-Lawyer were a lawyer, would prohibit Non-Lawyer from accepting the representation.  Which is most accurate?

  • A. Non-Lawyer’s conflict is imputed to all lawyers in the office and the office must decline the representation.
  • B. Non-Lawyer’s conflict is imputed, but only to any lawyer in the office who regularly supervises Non-Lawyer.
  • C. A comment to one of the rules indicates that while Non-Lawyer’s conflict is not imputed to any lawyer in the office, Non-Lawyer should be screened from involvement in the new matter.  See, V.R.Pr.C. 1.10, Cmt. [4]
  • D. Imputation depends on whether the matter is transactional or involves potential litigation.

Question 4

Last week, I presented to members of the Vermont Association for Justice.  My topic was professional responsibility and “The Golden Rule.”   What was the focus of the discussion?

  • The rule that prohibits unreasonable fees.
  • Trust Account Management/Bookkeeping
  • The advertising rules.
  • Closing arguments and the general prohibition on asking jurors to put themselves in the shoes of the victim or a witness.

Question 5

I often urge lawyers not to share any details of client matters, even if doing so doesn’t violate the prohibition on disclosing information relating to the representation of a client.

Reginald Haupt is a lawyer in Georgia.  In 1982, he was suspended from practice for 6 months for commingling.  In 2006, he was convicted of securities fraud and sentenced to 4 years in prison.

In the 1970’s, Haupt represented a client who owned a golf course that was frequented by members of the Chicago mafia.  Last month, Haupt made headlines by divulging to the media that, long ago, his former client told him that members of the Chicago mafia “delivered a package” to the golf course.  According to Haupt, the “package” was the dead body of a famous missing person who, to this day, remains buried on the course.

Whose body?

James Hoffa.    You can read the story at Golf Digest.

hoffa

The 230th #fiveforfriday legal ethics quiz.

Welcome to the 230th #fiveforfriday legal ethics quiz!

Today I’m going to relate both the date and the quiz number to a video of a friend’s performance at a dance recital last weekend.

Oh, wait.   That’s not what I’m going to do.  To my friend the dancer: you can now relax.  Unless you need defibrillation.

No, today I’m going to share a story of my foggy brain, bad math, and dashed hopes.

As most know, I spend much of the winter using this to bemoan the temperature.  I like it hot.  Which is exactly why I’ve loved most the past 10 days or so.

Yes, “most.”

I’ve gotta confess: yesterday morning felt cold.  I fully understand that it was 61.  Still, debating whether to wear a long sleeve shirt on my run, I texted Jenn, a friend who shares my thoughts on winter: “is it bad that I think it feels too chilly today?”  Jenn, who is not the dancer mentioned above, replied that it was not, that she felt the same way.

Flash forward to this morning.

Again, it was 61 as I prepared to run.  As breezy as yesterday, but much cloudier and bit damp, today’s debate wasn’t over sleeve length.  It was whether I should wear my gloves!  Don’t worry, I didn’t, and within a mile I had a nice sweat going and started to do what I do on most Friday morning runs: contemplate this column, and how to tie it to the date or quiz number.

Soon, it hit me: 84 is my perfect and preferred temperature. And what’s 84? It 23 + 61.  On this blog, that’s close enough to 230 and 6/11.

Then something else hit me: wouldn’t it be awesome if 61 Fahrenheit were 23 Celsius?!?!

Apparently, my brain was broken.

In fact, my brain can get foggy during long runs.  I used to think it took until approximately the 23-mile mark of a marathon. It’s at that point where, if I haven’t fueled correctly, my brain starts playing tricks on me.

Sometimes the tricks are minor: I struggle with basic math, having to work too hard to figure out if my current pace over the remaining miles will allow me to finish at or near my goad.

Other times, the tricks are a bit more serious. True story: around mile 23 of the 2011 Philadelphia Marathon, I wondered if I was lost.  Yes, despite running with hundreds of others who were also wearing race bibs, on a road lined with spectators, mile markers, and water stations, I thought I might be off the course.

Anyhow, given that today’s run was only 5.07 miles, the part of my brain that does math apparently fogs up much sooner than I thought.

Why do I say that?

Because the thought that 61 Fahrenheit might equal 23 Celsius struck me about 3 miles into a 5-mile run.  Yet it wasn’t until I got home, changed, made coffee, and used an online converter that I learned that, in fact, 61 F converts to 16 C.  Not even close!

I can hear you now:  don’t be so hard on yourself Mike! How were you supposed to know?

Because I grew up in Vermont!! And, when I grew up, they had these things called “basic competencies” that they started teaching us early and tracked throughout our academic careers.  Things like “giving directions” and “making change.”  Now that I think about it, pretty much all the things that we don’t need to do on our own these days.  Anyhow, “temperature conversion” might not have been one of the basic competencies.  Still, for a long, long time, I’ve known that when it comes to the temperature:

F ~ (9/5C + 32)

Being lazy, I’ve modified it to:

F ~ (2C + 32)

Still, this morning, I could not figure out on my own that (2*23 + 32) is nowhere close to 61.

Foggy brain. Bad math. Hopes dashed.

Onto the quiz!

the-quiz

Rules

  • Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Questions 1 & 2

Everyone knows I often mention the 7 Cs of Legal Ethics.  Earlier this week, I spoke with student-clinicians at Vermont Law School’s South Royalton Legal Clinic.  Their quiz on the 7 Cs included this question:

  • “Let’s imagine that upon passing the bar you accept a job with a state agency. Your first assignment is familiar: it involves a matter you worked on while in the clinic.  Which 2 Cs of legal ethics jump to mind?”

The scenario is a variation of a scenario that can, and often does, confront any lawyer.  So, Friday readers have the same task: identify the 2 Cs of Legal Ethics implicated by the scenario.

Question 3

 Your office employs Non-Lawyer.  In a new matter, Non-Lawyer has a conflict that, if Non-Lawyer were a lawyer, would prohibit Non-Lawyer from accepting the representation.  Which is most accurate?

  • A.  Non-Lawyer’s conflict is imputed to all lawyers in the office and the office must decline the representation.
  • B.  Non-Lawyer’s conflict is imputed, but only to any lawyer in the office who regularly supervises Non-Lawyer.
  • C.  A comment to one of the rules indicates that while Non-Lawyer’s conflict is not imputed to any lawyer in the office, Non-Lawyer should be screened from involvement in the new matter.
  • D.  Imputation depends on whether the matter is transactional or involves potential litigation.

Question 4

Last week, I presented to members of the Vermont Association for Justice.  My topic was professional responsibility and “The Golden Rule.”   What was the focus of the discussion?

  • A.  The rule that prohibits unreasonable fees.
  • B.  Trust Account Management/Bookkeeping
  • C.  The advertising rules.
  • D.  Closing arguments and the general prohibition on asking jurors to put themselves in the shoes of the victim or a witness.

Question 5

I often urge lawyers not to share any details of client matters, even if doing so doesn’t violate the prohibition on disclosing information relating to the representation of a client.

Reginald Haupt is a lawyer in Georgia.  In 1982, he was suspended from practice for 6 months for commingling.  In 2006, he was convicted of securities fraud and sentenced to 4 years in prison.

In the 1970’s, Haupt represented a client who owned a golf course that was frequented by members of the Chicago mafia.  Last month, Haupt made headlines by divulging to the media that, long ago, his former client told him that members of the Chicago mafia “delivered a package” to the golf course.  According to Haupt, the “package” was the dead body of a famous missing person who, to this day, remains buried on the course.  By the way, the golf course is in Georgia, not New Jersey.

Whose body?

Unauthorized practice or work-from-anywhere? An encouraging update from New York.

The pandemic changed the way we do things.  Some changes are bound to become permanent. One that piques my interest is the pandemic’s impact on the profession’s view of virtual practice.

Last month, the New York State Senate approved a bill to repeal a law requiring NY lawyers who reside out-of-state to maintain a physical office within New York.  As Reuters noted here, the NY bill “has big implications for attorneys looking to stay remote after the coronavirus pandemic.”

Karen Rubin writes The Law for Lawyers Today, one of my favorite legal ethics blogs.  Last week, Karen posted For Lawyers, work-from-anywhere might be the new model: NY & Florida developments. In addition to the New York bill, Karen refers to the Florida Supreme Court’s decision to approve an advisory opinion issued by the Florida State Bar’s Standing Committee on the Unauthorized Practice of Law.  The opinion concludes that a lawyer who is licensed in another state, but not in Florida, does not violate Florida’s rules on unauthorized practice by providing legal services to out-of-state clients on matters not involving Florida law while working remotely from Florida.  I blogged about the Florida opinion here.

In the post, Karen notes:

  • “The work-from-anywhere concept was already percolating in the form of “virtual law offices” when the COVID-19 pandemic arrived and accelerated the acceptance of new practice models using remote technology to reach clients, courts and each other.”

Indeed, in 2019, the Utah State Bar issued this advisory opinion.  Referring to a similar opinion from Ohio, the Utah opinion includes my favorite quote on issues associated with working remotely and unauthorized practice:

  • “what interest does the Utah State Bar have in regulating an out-of-state lawyer’s practice for out-of-state clients simply because he has a private home in Utah? And the answer is the same—none.”

 

Again, as Karen writes, the pandemic seems to have “accelerated” the bar’s acceptance of remote work.  Last December, I posted ABA issues common sense guidance on working remotely.  The post discusses the ABA Formal Advisory Opinion 495 and it conclusion that remote practice, subject to certain caveats, does not constitute unauthorized practice.  Karen’s post references similar caveats in the Florida opinion, stating that “[t]he now-official opinion raises these guardrails:

  • you can’t establish a ‘place of business or office’ in Florida (your porch, den, etc. doesn’t count);
  • your work must be solely for your regular (non-Florida) clients, on matters that don’t pertain to ‘Florida law; and
  • you can’t ‘hav[e] or [creat[e] a public presence or profile in Florida as an attorney.’”

I liked Karen’s statement that the Florida opinion “gives official sanction to non-Florida-licensed snowbirds and others who want to sojourn in the Sunshine State and continue to service their non-Florida clients.”

Lessons from the pandemic suggest that “work-from-anywhere” can, well, “work.” I’m encouraged that the profession is trending towards what I think is a commonsense approach to remote practice.  

IMG_5155

 

Monday Morning Honors #229

Happy Memorial Day.

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

Honor Roll

  • Karen Allen, Karen Allen Law
  • Janis Barquist
  • Penny Benelli, Dakin & Benelli
  • Geoffrey Bok, Esq.
  • Teri Corsones, Executive Director, Vermont Bar Association
  • Andrew DelaneyMartin, Delaney & Ricci Law Group
  • Heather Devine, Costello Valente & Gentry
  • Jennifer Emens-Butler, Director of Communication & Education, Vermont Bar Association
  • Benjamin Gould, Paul Frank + Collins
  • Anthony Iarrapino, Wilschek & Iarappino
  • Glenn Jarrett, Jarrett & Luitjens
  • Deborah Kirchwey, Law Office of Deborah Kirchwey
  • Jeanne Kennedy, JB Kennedy Associates, Blogger’s Mom
  • Elizabeth Kruska, President, Vermont Bar Association
  • John Leddy, McNeil Leddy & Sheahan
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
  • Keith RobertsDarby Kolter & Nordle
  • Jim Runcie, Ouimette & Runcie
  • Brice Simon, Breton & Simon
  • Jay Spitzen, Esq.
  • Jonathan Teller-Elsberg, Sheehey Furlong & Behm
  • The Honorable John Valente, Vermont Superior Judge
  • Jack Welch, Esq.
  • Jason Warfield, Candidate for Admission to the Vermont Bar

 Answers

Question 1

There’s a rule that prohibits a lawyer from communicating about the subject of the representation with a person that the lawyer knows is represented by another lawyer in the matter.

Which is NOT an exception to the prohibition?

  •   A.  The other lawyer consents to the communication.
  •   B.  The communication is authorized by law.
  •    C. The represented person initiates the communication. V.R.Pr.C. 4.2, Cmt. [3].
  •   D. Trick Question.  A, B, and C are the 3 exceptions to the rule.

Question 2

Attorney called me with an inquiry. I listened, then replied, “yes, but only in an amount reasonably necessary for the purpose.” You may assume that my response accurately (and exactly) quoted the rule.

Given my response, Attorney asked whether the rules permit Attorney to:

  •  A.  review an adverse party’s social media platforms.
  •   B. deposit Attorney’s own money into a client trust account.  V.R.Pr.C. 1.15(b).
  •  C.  engage in ex parte communications with jurors post-trial.
  •  D.  take time off to relax.

Question 3

Communication is one of the 7 Cs of legal ethics.

Several rules require a lawyer to secure a client or former client’s ___________  __________ before acting.   The rules define ___________ __________  as:

  • “An agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”

The quoted language is the definition of what phrase?

INFORMED CONSENT.

Question 4 

This is a tough one.  While self-reporting might be advisable in response to each, which is the only event that, by rule, a Vermont lawyer is required  to self-report?

  • A.  trust account overdrafts.
  • B.  adverse malpractice judgements.
  • C. discipline imposed in another jurisdiction.
  • D.  criminal convictions.

V.R.Pr.C. 8.3 imposes a duty to report “another lawyer.”  So, generally, there’s no duty to self-report violatios of the Rules of Professional Conduct.  However, per Rule 20(A) of Supreme Court Administrative Order 9, a lawyer who is admitted in Vermont and who is disciplined in another jurisdiction must promptly inform disciplinary counsel.

 Question 5

Looking through the list of notable events to have occurred on May 28 in history, two are related to the law, share a connection, and reminded of my mother.

On or about May 28, 1431, this person was captured while wearing men’s clothing.  Having been convicted of wearing men’s clothing earlier in the same year, the person was charged with heresy and with being a witch.  The person was convicted, sentenced to death, and executed on May 30.

Nearly 500 years later, on May 28, 1923, the United States Attorney General announced that it was legal for women to wear trousers in public.  Yes, the United States Attorney General actually had to make such an announcement.

Sidebar: today is my mother’s youngest sister’s birthday.  Startlingly, Aunt Helen Anne’s birthday is not on today’s list of historical events! Happy birthday AHAB!!!

Anyhow, who was executed as a heretic and witch on this weekend in 1431?

Your hint (and reason I was reminded of my mother): my mom’s maiden name is Jeanne Bonneau.

JOAN OF ARC

Joan of Arc

Five for Friday #229

Welcome to Friday and the 229th #fiveforfriday legal ethics quiz!

Today is National Road Trip Day, National Don’t Fry Day, and National Cooler Day.  I plan to honor each this weekend.

Tomorrow, I’m making a road trip to Schenectady to run Sunday’s Miles on the Mohawk Marathon.  The race day forecast calls for clouds, a chance of light rain, and temperatures in the high 40’s and low 50’s. Not only perfect marathoning weather, but perfect weather for my skin and bald head not to burn, which is the exact issue – overexposure to the sun – about which National Don’t Fry Day intends to raise awareness.

Upon finishing, I’ll hop back in the car and drive to Lake Dunmore where the First Brother is camping this weekend.  Now, today is also National Brisket Day and National Burger Day.  Nobody makes better brisket than my brother, but he’s not bringing his smoker to the campground. Perhaps we’ll have burgers instead.  Regardless, our cooler will remain within easy reach as we sit by the fire Sunday night.

Like mine, I hope your long weekend includes activities that, while legal, have nothing to do with the law or practice thereof.  Enjoy!

Onto the quiz.

Rules

  • Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

There’s a rule that prohibits a lawyer from communicating about the subject of the representation with a person that the lawyer knows is represented by another lawyer in the matter.

Which is NOT an exception to the prohibition?

  •   A.  The other lawyer consents to the communication.
  •   B.  The communication is authorized by law.
  •   C.  The represented person initiates the communication.
  •   D.  Trick Question.  A, B, and C are the 3 exceptions to the rule.

Question 2

Attorney called me with an inquiry. I listened, then replied, “yes, but only in an amount reasonably necessary for the purpose” allowed by the rule.  You may assume that my response accurately (and exactly) quoted the rule.

Given my response, Attorney asked whether the rules permit Attorney to:

  •  A.  review an adverse party’s social media platforms.
  •  B.  deposit Attorney’s own money into a client trust account.
  •  C.  engage in ex parte communications with jurors post-trial.
  •  D.  take time off to relax.

Question 3

Communication is one of the 7 Cs of legal ethics.

Several rules require a lawyer to secure a client or former client’s ___________  __________ before acting.   The rules define ___________ __________  as:

  • “An agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”

The quoted language is the definition of what phrase?

Question 4

This is a tough one.  While self-reporting might be advisable in response to each, which is the only event that a lawyer is specifically rto self-report?

  • A.  trust account overdrafts.
  • B.  adverse malpractice judgements.
  • C.  discipline imposed in another jurisdiction.
  • D.  criminal convictions.

 Question 5

Looking through the list of notable events to have occurred on May 28 in history, two are related to the law, share a connection, and remind of my mother.

On or about May 28, 1431, this person was captured while wearing men’s clothing.  Having been convicted of wearing men’s clothing earlier in the same year, the person was charged with heresy and with being a witch.  The person was convicted, sentenced to death, and executed on May 30.

Nearly 500 years later, on May 28, 1923, the United States Attorney General announced that it was legal for women to wear trousers in public.  Yes, the United States Attorney General actually had to make such an announcement.

Sidebar: today is my mother’s youngest sister’s birthday.  Shockingly, Aunt Helen Anne’s birthday is not on today’s list of historical events! Happy birthday AHAB!!!

Anyhow, who was executed as a heretic and witch on this weekend in 1431?

Your hint (and reason I was reminded of my mother): my mom’s maiden name is Jeanne Bonneau.

the-quiz

Monday Morning Honors #228

Happy Monday!

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

Honor Roll

  • Karen Allen, Karen Allen Law
  • Alberto BernabeProfessor of Law, University of Illinois at Chicago, John Marshall School of Law
  • Andrew DelaneyMartin, Delaney & Ricci Law Group
  • Heather Devine, Costello Valente & Gentry
  • Jennifer Emens-Butler, Vermont Bar Association, Director of Communication & Education
  • Glenn Jarrett, Jarrett & Luitjens
  • Deborah Kirchwey, Law Office of Deborah Kirchwey
  • Jeanne Kennedy, JB Kennedy Associates, Blogger’s Mom
  • John Leddy, McNeil Leddy & Sheahan
  • Kevin Lumpkin, Sheehey, Furlong & Behm
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeff Messina, Bergeron, Paradis, Fitzpatrick
  • Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
  • Herb Ogden, Esq.
  • Keith RobertsDarby Kolter & Nordle
  • Noah Rosenthal, Fenwick
  • Jay Spitzen, Esq.
  • Jonathan Teller-Elsberg, Sheehey Furlong & Behm
  • The Honorable John Valente, Vermont Superior Judge
  • Eva Vekos, Marsh & Wagner
  • Jason Warfield, Candidate for Admission to the Vermont Bar
  • Zachary York, Sheehey Furlong & Behm

 Answers

Question 1

Identify the duty imposed by a rule that includes these phrases. It’s one of the 7 Cs of Legal Ethics.

  • Explain the matter to the extent reasonably necessary to permit the client to make informed decisions about the representation.
  • Keep the client reasonably informed about the status of the matter.
  • Promptly reply with a client’s reasonable requests for information.

COMMUNICATION.  Each phrase appears in V.R.Pr.C. 1.4.

Question 2

Lawyer contacted me with an inquiry. I listened, then replied “I recommend that you limit your motion to citing to the rule’s specific provision that either requires or permits it.  Then, if the court orders you to disclose more, do so carefully, without disclosing more than necessary to make your point.”

Given my response, it’s most likely that Lawyer called to discuss a motion to:

  • A.  recuse the judge.
  • B.  disqualify opposing counsel.
  • C.  withdraw from representing a client.
  • D.  order a competency evaluation.

This question refers to the dangers of “noisy withdrawal.”  See my blog post Stop Making Noise.

Question 3

Lawyer is an associate at Firm. Tomorrow, Lawyer intends to provide short-term limited legal services to clients at a walk-in clinic sponsored by a nonprofit organization.  Neither Lawyer nor the walk-in clients will expect Lawyer or Firm to provide continuing representation to the clients.  By rule, which set of rules will be (somewhat) relaxed, insofar as they relate to Lawyer’s work at the walk-in clinic?   The rules on:

  •  A.  Malpractice Insurance
  •  B.  Conflicts of Interest. V.R.Pr.C. 6.5
  •  C.  Competence & Diligence
  •  D.  Client Confidences

Question 4

 Many types of “threats” could violate the Vermont Rules of Professional Conduct.  However, there’s only one rule that specifically prohibits lawyers from threatening to do something.

Do what?

V.R.Pr.C. 4.5 makes it professional misconduct to present, participate in presenting, or THREATEN to present criminal charges in order to obtain an advantage in a civil matter.

 Question 5

Bobby Franks was brutally murdered on May 21, 1924.  He was 14 years old.

Two men were charged with the murder.  They were 19 and 18.  Their lawyer concluded that a jury trial would likely result in convictions and death sentences. So, the lawyer convinced the clients to plead guilty and allow him to argue that the judge should spare their lives and sentence them to life in prison.

Then, in a Chicago courthouse in what the media labeled “The Trial of the Century,” the lawyer delivered an argument famously criticizing the death penalty, its use on the young, and the place of vengeance in the justice system.

In the end, the judge sentenced the lawyer’s clients to life in prison.

Interestingly, over a decade earlier, the lawyer was banned from practicing law in California after having been charged with jury tampering and bribery while representing a client charged with bombing the Los Angeles Times building.  The lawyer was acquitted on one count and the jury (a different one) hung on the other.

Name the lawyer.

Bonus: name the lawyer’s clients.

CLARENCE DARROW in the trial of Leopold and Loeb.

darrow

The 228th #fiveforfriday legal ethics quiz.

Welcome to Friday and the 228th #fiveforfriday legal ethics quiz!

My recurring condition of Blogger’s Block has flared again, leaving me without a topic for today’s intro. Over coffee, I put in a half-hearted effort to find a hook related to today’s date or quiz number.  Alas, as those who know me best know full well, “half-hearted” is damned near Herculean for me.  Thus, to characterize this morning’s quest as involving effort of any measurable quantity would likely violate Rule 7.1 and its ban on false or misleading communications concerning Bar Counsel’s services.

Still, I learned two things: today is both National Memo Day and National Pizza Party Day.  That each is honored with a day flummoxed me.

I’ll begin with National Pizza Party Day.

Pizza Party Day

Umm…. why is it limited to a single day?

During Well-Being Week in Law, I mentioned my hope that the profession will attend to its well-being year-round, not just for a week in May. Similarly, I often tell my mother that every day should be Mother’s Day.

Wait a minute . . .

I’m not certain that I tell her that.  Indeed, she might read this blog and announce that it violates the ban on Bar Counsel making false or misleading communications about his service as a son.

Anyhow, to me, pizza parties are in the same category as moms and well-being.  While perfectly acceptable to highlight them at a specific moment in time, they are to be celebrated as often as possible.

As for National Memo Day, my initial reaction was one of shock and dismay. I despise memos.  I can conceive of no good reason to set aside a day to honor or send them.

Fortunately, I found this entry on the National Day Calendar.  As it turns out, “the observance aims to reduce the number of memos issued in the workplace. It also hopes that memo writers keep their messages brief and to the point.”

Here here!  And, yet another example of a celebration that shouldn’t be limited to a single day!

Now, stop reading this and send your co-workers a short memo suggesting that the office knock off early for a pizza party.

Onto the quiz!

Rules

  • Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

Identify the duty imposed by a rule that includes these phrases. It’s one of the 7 Cs of Legal Ethics.

  • Explain the matter to the extent reasonably necessary to permit the client to make informed decisions about the representation.
  • Keep the client reasonably informed about the status of the matter.
  • Promptly reply with a client’s reasonable requests for information.

Question 2

Lawyer contacted me with an inquiry. I listened, then replied “I recommend that you limit your motion to citing to the rule’s specific provision that either requires or permits it.  Then, if the court orders you to disclose more, do so carefully, without disclosing more than necessary to make your point.”

Given my response, it’s most likely that Lawyer called to discuss a motion to:

  • A.  recuse the judge.
  • B.  disqualify opposing counsel.
  • C.  withdraw from representing a client.
  • D.  order a competency evaluation.

Question 3

Lawyer is an associate at Firm. Tomorrow, Lawyer intends to provide short-term limited legal services to clients at a walk-in clinic sponsored by a nonprofit organization.  Neither Lawyer nor the walk-in clients will expect Lawyer or Firm to provide continuing representation to the clients.  By rule, which set of rules will be (somewhat) relaxed, insofar as they relate to Lawyer’s work at the walk-in clinic?   The rules on:

  •  A.  Malpractice Insurance
  •  B.  Conflicts of Interest
  •  C.   Competence & Diligence
  •  D.  Client Confidences

Question 4

 Many types of “threats” could violate the Vermont Rules of Professional Conduct.  However, there’s only one rule that specifically prohibits lawyers from threatening to do something.

Do what?

 Question 5

Bobby Franks was brutally murdered on May 21, 1924.  He was 14 years old.

Two men were charged with the murder.  They were 19 and 18.  Their lawyer concluded that a jury trial would likely result in convictions and death sentences. So, the lawyer convinced the clients to plead guilty and allow the lawyer to argue that the judge should spare their lives and sentence them to life in prison.

Later, in a Chicago courthouse in what the media labeled “The Trial of the Century,” the lawyer delivered an argument famously criticizing the death penalty, its use on the young, and the place of vengeance in the justice system.

In the end, the judge sentenced the lawyer’s clients to life in prison.

Interestingly, over a decade earlier, the lawyer was banned from practicing law in California after having been charged with jury tampering and bribery while representing a client charged with bombing the Los Angeles Times building.  The lawyer was acquitted on one count and the jury (a different one) hung on the other.

Name the lawyer.

Bonus: name the lawyer’s Chicago clients who murder Bobby Franks 97 years ago today.

Surreptitious recordings.

A few months ago, a lawyer called to discuss the ethics issues associated with surreptitiously recording a conversation with a client.  More recently, another lawyer contacted me to ask about recording conversations with opposing counsel.

spidey sense

In my time here – 23 years – we’ve not received a single complaint in which a current or former client alleged that their lawyer secretly recorded them.  Nor have we received such a complaint from one lawyer against another. Of course, it’s difficult to complain about something you don’t know.  As such, I don’t necessarily consider the absence of evidence to be evidence of absence. For all I know, it happens, but the lawyer never uses the recording or alerts the client or other lawyer to its existence.

In the mid-2000s, two Vermont lawyers represented a client charged with murder.  Mid-trial, the lawyers learned that an incarcerated person claimed to have knowledge that someone other than their client had committed the crime.  The court granted a short recess for the lawyers to follow-up on the tip. The lawyers interviewed the incarcerated person.  The person asked if the lawyers were recording the conversation.  They were.  Yet, one answered “no” and the other remained silent.

I don’t recall how, but the incarcerated person found out that the conversation had been recorded. A disciplinary complaint followed.  Eventually, my office charged the lawyers with violating Rules 4.1 and 8.4(c) of the Vermont Rules of Professional Conduct.  The former prohibits a lawyer from knowingly making a false statement of material fact to a third person while acting on a client’s behalf.  The latter makes it professional misconduct to engage in conduct involving dishonesty, deceit, misrepresentation, or fraud.

To be clear, the charges were not based on the surreptitious recording itself.  Vermont is a one-party consent state.  The charges focused on the lawyers’ deceptive answer and affirmation-by-silence when asked if the conversation was being recorded.

A hearing panel determined that the lawyers had violated Rule 4.1, but not Rule 8.4(c).  Upon review, the Supreme Court affirmed, concluding that not every dishonest act violates Rule 8.4(c), only those acts that adversely reflect on the lawyer’s fitness to practice.  The Court held that while the lawyers had violated Rule 4.1 by falsely stating they were not recording the conversation, the circumstances were such — the mid-trial reception of a tip that might have exonerated their client — that the misrepresentation did not adversely reflect on the lawyers’ fitness to practice.  Neither the hearing panel nor the Court opined as to whether the lawyers violated the rules merely by recording the conversation without informing the incarcerated person.

Many state and local bar associations have issued advisory opinions on this issue.  Some have concluded that surreptitious recordings are inherently deceptive and unethical per se.  More have concluded that undisclosed recordings, standing alone, do not violate the rules.

The most prominent opinion might be ABA Formal Opinion 01-402. It’s an opinion in which the ABA’s Standing Committee on Ethics and Professional Responsibility advised that, in one-party consent jurisdictions, a lawyer does not violate the ethics rules merely by recording a conversation without informing the other participants.  Rather, it’s only unethical if the lawyer does something else to violate the law or rules. The ABA Committee was “divided as to whether a lawyer may record a client-lawyer conversation without the knowledge of the client, but agree[d] that it is inadvisable to do so.”

In January 2021, the Supreme Court of Arizona’s Attorney Ethics Advisory Committee recommended that the court approve Ethics Opinion EO-20-0002.  It’s an opinion in which the Arizona Committee concluded:

  • “that it is not per se unethical or ‘inherently deceptive’ for an attorney in Arizona to record a telephone communication between the attorney and another individual without disclosing that the attorney is recording the communication, so long as the recording does not violate applicable federal or state law. The lawyer must still act consistent with all applicable Arizona Rules of Professional Conduct in making and using the recording, and an attorney’s undisclosed recording may still violate various Ethical Rules, depending on the facts of each case.”

Some members of the Arizona Committee dissented.  Here’s the crux of the dissent:

  • “Over the past 40 years, Arizona has imposed a general blanket prohibition against an attorney recording a conversation without disclosure based on the view that any such recording is inherently deceptive and in violation of ER 8.4(c). This blanket prohibition is subject to a number of exceptions that have been articulated in several ethics opinions. The bedrock for the blanket prohibition is the simple proposition that, although such recordings may be legal under Arizona law at the end of the day, lawyers need to hold themselves to a higher standard. Over those 40 years, this rule, along with its exceptions, has worked well. There has been no hue and cry for a change.” (citation omitted).

In the end, and as reported by Professor Bernabe and Ethics at Law, the Arizona Supreme Court did not approve or adopt the opinion.  Still, aspects of the opinion provide educational value.  In particular, four of the majority’s caveats to its broader conclusion.

First, echoing the Vermont case that I mentioned above, the majority noted that it would continue to be a violation for a lawyer who was recording a conversation to state they were not.

Second, with respect to recording clients, the opinion stated that it is:

  • “rare that a client’s interest would ever be served by lawyers making undisclosed recordings of conversations between lawyer and client, and therefore unlikely that undisclosed recording of a lawyer-client conversation would ever be appropriate.”

And that,

  • “Lawyers should also avoid undisclosed recordings of conversations with their own clients, due to the likelihood that such recordings, if later discovered, would undermine the trust and candor that are essential to the lawyer-client relationship.”

Third, with respect to opposing lawyers, the Arizona Committee cautioned that “[u]ndisclosed recordings may also have serious negative effects on what would otherwise be collegial working relationships with opposing counsel.”

Finally, while noting that Arizona is a one-party consent state, the Committee stated:

  • “Before choosing to make an undisclosed recording, the Committee strongly recommends that lawyers consider whether a disclosed recording would serve the same purpose, in order to avoid unnecessarily risking the potential pitfalls of undisclosed recording.”

I understand that technology has made it incredibly easy to record every encounter.  I also understand that we are more and more tempted to record conversations with people who we perceive to be difficult.   Still, I view my role as a risk manager of sorts.  And, in that role, my spidey sense tingles when the conversation includes “clients,” “opposing counsel,” “secret,” and “surreptitious.”

As always, be careful out there.

Monday Morning Answers #227

Happy Monday!

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

Honor Roll

  • Evan BarquistMontroll, Backus & Oettinger
  • Alberto BernabeProfessor of Law, University of Illinois at Chicago, John Marshall School of Law
  • Benjamin Gould, Paul Frank + Collins
  • Lon McClintock, Esq.
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeff Messina, Bergeron, Paradis, Fitzpatrick
  • Herb Ogden, Esq.
  • Keith RobertsDarby Kolter & Nordle
  • Jay Spitzen, Esq.
  • Jonathan Teller-Elsberg, Hershenson, Carter, Scott & McGee
  • Jason Warfield, Esq.
  • Thomas WilkinsonCozen O’Connor
  • Zachary York, Sheehey Furlong & Behm

Answers

Question 1

Fill in the blank. (choices below)

By rule, a concurrent conflict of interest exists if there is ___________________ that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

  •  A.  an appearance
  •  B.  the potential
  •  C.  a likelihood
  •   D.  a significant risk.  See, V.R.Pr.C. 1.7(a)(2).

 Question 2

Paralegal works at Firm.  Prospective Client meets with Firm to discuss potential representation.  Paralegal has conflict of interest that would preclude Paralegal from representing Prospective Client if Paralegal were a lawyer.  Which is most accurate?

  • A.  The conflict is imputed to all lawyers who work at Firm.
  • B.  The conflict is imputed, but only to lawyers with whom Paralegal works closely.
  • C.  The conflict is not imputed.
  • D.  The conflict is not imputed, but paralegal should be screened from any involvement in Prospective Client’s matter. See, V.R.Pr.C. 1.10, Cmt. [4].

Question 3

At a CLE, I’m talking about “lateral transfers and whether they were involved personally and substantially.”  What specific area of the rules was I addressing?

  • A.  Trust accounting.  A lateral transfer is a type of ACH transfer.
  • B.  Trust accounting. A lateral transfer is wire fraud. Personal & substantial involvement in effectuating one will expose a lawyer to criminal and disciplinary charges.
  • C.  Conflicts of interest that arise when a lawyer changes firm.
  • D.  Conflicts of interest that arise when a lawyer becomes a judge.

Question 4

Lawyer called me with an inquiry. I responded, “one of the comments to the rule indicates that the rule encompasses anyone who supervises, directs, or regularly consults with you on the matter; who has the authority to obligate your client with respect to the matter; and whose act or omission in connection with the matter may be imputed to your client for the purposes of civil or criminal liability.”

Given my response, Lawyer’s inquiry most likely related to:

  • A.  Lawyer’s duty to report a supervisor’s misconduct.
  • B.  Lawyer’s duty to report a client’s criminal conduct.
  • C.  The scope of Lawyer’s duties to maintain a client’s confidences.
  • D. The constituents of Lawyer’s organizational client with whom opposing counsel cannot communicate absent Lawyer’s consent.  See, V.R.Pr.C. 4.2, Cmt. [7].

Question 5

Constitutional Law.

29 years ago today, Michigan ratified an amendment to the U.S. Constitution. At the time, many believed that Michigan was the 38th state to ratify the amendment, thus making the amendment law.  As it turns out, the amendment officially became part of the Constitution two days earlier, when Alabama ratified it on May 5.

Why the confusion?

Because the amendment was proposed in 1789.  Kentucky ratified it in 1792, but that fact was somehow lost to history until 1996.

Anyhow, it was the most recent amendment to be adopted.

What number is it?  In other words, how many amendments are there to the United States Constitution?

  1. The 27th amendment provides that changes to congressional salaries will not take effect until after the next election of members of the House of Representatives.

Hint: think about a long time focus of the Five for Friday posts.

27th Amendment

 

The 227th #fiveforfriday legal ethics quiz.

Welcome to the 227th #fiveforfriday legal ethics quiz!

This week is Well-Being Week in Law.  Each day focused on a different component of well-being. Each day, I recorded a video addressing the day’s theme.  Except for Monday, I hosted a discussion of the day’s theme at lunch, then posted a video debrief of the discussion.

The posts and videos are this week’s intro.  Check ‘em out.

Onto the quiz!

Rules

  • Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

the-quiz

Question 1

Fill in the blank. (choices below)

By rule, a concurrent conflict of interest exists if there is ___________________ that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

  • A.   an appearance
  • B.   the potential
  • C.  a likelihood
  •  D.  a significant risk

 Question 2

Paralegal works at Firm.  Prospective Client meets with Firm to discuss potential representation.  Paralegal has conflict of interest that would preclude Paralegal from representing Prospective Client if Paralegal were a lawyer.  Which is most accurate?

  • A.  The conflict is imputed to all lawyers who work at Firm.
  • B.  The conflict is imputed, but only to lawyers with whom Paralegal works closely.
  • C.  The conflict is not imputed.
  • D.  The conflict is not imputed, but paralegal should be screened from any involvement in Prospective Client’s matter.

Question 3

At a CLE, I’m talking about “lateral transfers and whether they were involved personally and substantially.”  What specific area of the rules was I addressing?

  • A  Trust accounting.  A lateral transfer is a type of ACH transfer.
  • B.  Trust accounting. A lateral transfer is wire fraud. Personal & substantial involvement in effectuating one will expose a lawyer to criminal and disciplinary charges.
  • C.  Conflicts of interest that arise when a lawyer changes firm.
  • D.  Conflicts of interest that arise when a lawyer becomes a judge.

Question 4

Lawyer called me with an inquiry. I responded, “one of the comments to the rule indicates that the rule encompasses anyone who supervises, directs, or regularly consults with you on the matter; who has the authority to obligate your client with respect to the matter; and whose act or omission in connection with the matter may be imputed to your client for the purposes of civil or criminal liability.”

Given my response, Lawyer’s inquiry most likely related to:

  • A.  Lawyer’s duty to report a supervisor’s misconduct.
  • B.  Lawyer’s duty to report a client’s criminal conduct.
  • C.  The scope of Lawyer’s duties to maintain a client’s confidences.
  • D.  The constituents of Lawyer’s organizational client with whom opposing counsel cannot communicate absent Lawyer’s consent.

Question 5

Constitutional Law.

29 years ago today, Michigan ratified an amendment to the U.S. Constitution. At the time, many believed that Michigan was the 38th state to ratify the amendment, thus making the amendment law.  As it turns out, the amendment officially became part of the Constitution two days earlier, when Alabama ratified it on May 5.

Why the confusion?

Because the amendment was proposed in 1789.  Kentucky ratified it in 1792, but that fact was somehow lost to history until 1996.

Anyhow, it was the most recent amendment to be adopted.

What number is it?  In other words, how many amendments are there to the United States Constitution?

Hint: think about a long time focus of the Five for Friday posts.