Monday Morning Answers #175

Welcome back to another work week. Wherever you are, I hope your Monday weather is as fantastic as it is here at headquarters.

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

Most importantly: you have spoken.  On the issue of expirations dates, here are the results from Friday’s poll:

When it comes to expiration dates on food:

  • 63.3% – I’m like J&J. Expiration dates arrive well before the food goes bad. No mold or odor? It’s fine! 
  • 20% – I’m like Mike & Taylor.  Never, ever after the expiration date.
  • 16.7% – One or two days past is ok, but that’s the max.”

As always, thanks to all who reached out with more specific responses.  I loved every one of them!

Have a great day!

Honor Roll

  • Karen Allen, Esq.
  • Matt AndersonPratt Vreeland Kennelly Martin & White
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, John Marshall Law School
  • Jennifer Emens-Butler, Director of Education & Communication, VBA
  • Erin GilmoreRyan Smith & Carbine
  • Laura Gorsky, Esq.
  • Bob Grundstein, Esq.
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy, JB Kennedy Associates, Blogger’s Mom
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Kevin LumpkinSheehey Furlong & Behm
  • Lon McClintock, Esq.
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Hal Miller, First American
  • Herb Ogden, Esq.
  • Robyn SweetCORE Registered Paralegal, Cleary Shahi  & Aicher
  • Jonathan Teller-Elsberg, Vermont Law School, Class of 2020
  • Jason Warfield, Vermont Law School, Class of 2020

Answers

 

Question 1

Which is most accurate?  By rule, a lawyer shall ___________:

  • A.  reasonably consult with the client about the means by which the client’s objectives are to be accomplished.  
  • B.  abide by the client’s direction as to the means by which the client’s objectives are to be accomplished.
  • C.  B, unless to do so would violate the Rules of Professional Conduct.
  • D.  None of the above.  The rules require a lawyer to abide by the client’s objectives but are silent as to the means by which those objectives are accomplished.

This is the exact language from Rule 1.4(a)(2), the rule that outlines the scope of a lawyer’s duty to communicate with a client.  Per Rule 1.2(a), a client owns the objectives.

Question 2

By rule, when representing a client, a lawyer shall not communicate with a person who is represented by another lawyer absent the consent of the other lawyer.

True or False: the rule only applies if the represented person’s interests are adverse to the interests of the lawyer’s client.

FALSE.  Rule 4.2 applies whenever a person is represented.

Question 3

Lawyer called me with an inquiry.  I listened then said “there are 3 exceptions to the rule.  The first is if the testimony relates to an uncontested issue.  The second is if the testimony relates to the nature and value of legal services rendered in the case.”

Given my response, the testimony of who?

  • A.   an expert witness
  • B.   Lawyer’s former client, and former client is adverse to Lawyer’s current client
  • C.   a lawyer
  • D.  Lawyer’s client, and Lawyer’s client suffers from a diminished capacity.

This is Rule 3.7, Lawyer as Witness.

Question 4

By rule, Disciplinary Counsel and the Supreme Court are authorized to conduct & order, respectively, compliance reviews & audits of a lawyer or law firm’s:

  • A.  financial records
  • B.  financial records, including trust accounts
  • C.  financial records, including trust & fiduciary accounts
  • D.  C, but only upon receipt of information sufficient to establish that there is probable cause for the compliance review or audit.

The authority to conduct & order compliance reviews & audits of a lawyer or law firm’s financial records, including trust and fiduciary accounts appears in Rules 1.15A(b) and 1.15A(c).

Question 5

Privileges, confidences, conflicts.

In real-life, Paul Giamatti’s father, Bart, served as Commissioner of Major League Baseball.  There, Bart effectively disbarred Pete Rose by banning him from the sport.

On television, Paul Giamatti plays Chuck Rhoades, United States Attorney for the Southern District of New York.  Initially, the show focuses on Rhoades’ fixation with building a criminal case against Bobby Axelrod, an incredibly wealthy hedge fund trader who owes much of his fortune to gains made as a result of the 9/11 terrorist attacks.  A complicating factor?  Rhoades’ wife, Wendy, is a psychiatrist who works as a “performance coach” at Axe Capital, the hedge fund owned by Axelrod.

Central to the show’s plot are Wendy’s relationships with Rhoades and Axelrod, and the issues related to privileges, confidences, and conflicts that arise as a result.

Name the show.

BILLIONS

Image result for billions

Five for Friday #175: Superstitions & Expiration Dates

Happy Friday!

On the superstition spectrum, I’m much closer to Steve Wonder

Image result for stevie wonder very superstitious

than I am to Michael Scott.

Image result for michael scott superstitious

That being said, Friday the 13th doesn’t bother me.  No, when it comes to superstitions, most of mine relate to sports or food.  In fact, I’m using today’s intro to ask my readers to weigh in on a particular of my food superstitions, one that is not shared by two of my most loyal readers.  More on that in a moment.

First, my food-related superstitions include:

  • it’s bad luck to set a microwave for a time that ends in 0.  (e.g.: 1: 59 is far safer than 2:00.)
  • it’s bad luck to pour the cream or milk after you’ve poured the coffee. put the cream or milk in first, then the coffee. Always.
  • in a restaurant, it’s bad luck to disclose your order to someone you’re eating with before you announce the order to the server;
  • in a restaurant, it’s bad luck to order the same thing as someone eating with you.
  • thus, it’s obvious that, in a restaurant, it’s bad luck not to order last.

(Don’t worry, over dinner, my wit, charm, and conversational skills will cleanse your palate of how insufferable I was prior to ordering.)

Fact:  I live my life by the superstitions listed above.  However, I write today for your input on the food-related superstition that is most critical to my belief system: expiration dates.

I treat consuming food after the expiration date like Taylor Swift treats getting back together: never ever.   Literally.  If the expiration date is the 15th, I might not even consume it on the 13th.  There is zero chance that I will use it on the 16th.  To me, this isn’t even a superstition.  It’s science.

Now, as I mentioned,  at least two of my most loyal readers disagree with me on this issue.  I’m not sure that I should I identify them.  Thus, to protect their anonymity:

  • each has a first name that begins with J;
  • one has known me for every single second of my life; and,
  • the other works for the Vermont Bar Association.

Their cavalier attitudes towards expiration dates leaves me worried for their health.  Seriously.   I’m not talking about using something a day or two after the deadline.  I’m talking weeks!  That’s not wellness!

So, here’s what we’re going to do.   I’ve set up a poll.  It’s here.  Please weigh in on this important issue. You don’t have to take the legal ethics quiz to do so. .

Onto the quiz!

Rules

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception – but one that is loosely enforced – #5 (“loosely” = “aspirational”)
  • 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

Which is most accurate?  By rule, a lawyer shall ___________:

  • A.  reasonably consult with the client about the means by which the client’s objectives are to be accomplished.
  • B.  abide by the client’s direction as to the means by which the client’s objectives are to be accomplished.
  • C.  B, unless to do so would violate the Rules of Professional Conduct.
  • D.  None of the above.  The rules require a lawyer to abide by the client’s objectives but are silent as to the means by which those objectives are accomplished.

Question 2

By rule, when representing a client, a lawyer shall not communicate with a person who is represented by another lawyer absent the consent of the other lawyer.

True or False: the rule only applies if the represented person’s interests are adverse to the interests of the lawyer’s client.

Question 3

Lawyer called me with an inquiry.  I listened then said “there are 3 exceptions to the rule.  The first is if the testimony relates to an uncontested issue.  The second is if the testimony relates to the nature and value of legal services rendered in the case.”

Given my response, the testimony of who?

  • A.   an expert witness
  • B.   Lawyer’s former client, and former client is adverse to Lawyer’s current client
  • C.   a lawyer
  • D.  Lawyer’s client, and Lawyer’s client suffers from a diminished capacity.

Question 4

By rule, Disciplinary Counsel and the Supreme Court are authorized to conduct & order, respectively, compliance reviews & audits of a lawyer or law firm’s:

  • A.  financial records
  • B.  financial records, including trust accounts
  • C.  financial records, including trust & fiduciary accounts
  • D.  C, but only upon receipt of information sufficient to establish that there is probable cause for the compliance review or audit.

Question 5

Privileges, confidences, conflicts.

In real-life, Paul Giamatti’s father, Bart, served as Commissioner of Major League Baseball.  There, Bart effectively disbarred Pete Rose by banning him from the sport.

On television, Paul Giamatti plays Chuck Rhoades, United States Attorney for the Southern District of New York.  Initially, the show focuses on Rhoades’ fixation with building a criminal case against Bobby Axelrod, an incredibly wealthy hedge fund trader who owes much of his fortune to gains made as a result of the 9/11 terrorist attacks.  A complicating factor?  Rhoades’ wife, Wendy, is a psychiatrist who works as a “performance coach” at Axe Capital, the hedge fund owned by Axelrod.

Central to the show’s plot are Wendy’s relationships with Rhoades and Axelrod, and the issues related to privileges, confidences, and conflicts that arise as a result.

Name the show.

Image result for bobby wendy chuck one picture

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Judicial Recusal: Guidance from Mag & the ABA

In my first year as a high school varsity basketball coach, I started a sophomore guard named Chris Magistrale.  “Mag” (pronounced “madge”) was a terrific player, teammate, and person.   By the time his high school basketball career ended, he’d been named captain, earned numerous all-league & all-state honors, and scored more than 1,000 points.  He and I remained close over the years.

A few years after graduating, Mag got into reffing.  He eventually worked his way up to the varsity level, reffing in the same league in which he used to play and in which I continued to coach.  Somewhat surprisingly, one year, Mag was assigned to ref our season-opener.  He worked a great game, neither helping nor hurting his alma mater & old coach.

Still, a few opposing coaches expressed concern to the referee in charge of assigning officials.  From then until my retirement, Chris never again worked one of my games.

And rightfully so.  In basketball, when it comes to the fairness of the game, appearances matter.

Last week, the ABA’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 488.  The opinion provides guidance as to judges’ obligations to recuse themselves due to a social or personal relationship with a party or lawyer.  The ABA Journal and Lawyer Ethics Alert Blog reported on the opinion.

The opinion begins by citing to Rule 2.11 of ABA Model Code of Judicial Conduct. The rule governs disqualification.  Vermont’s equivalent is Rule 3(E) of the Vermont Code of Judicial Conduct.  For the most part, it mirrors the Model Rule by requiring recusal whenever a “judge’s impartiality might reasonably be questioned.”  Then, the VT rule lists various relationship in which it is presumed reasonable to question the judge’s impartiality.

Vermont’s rule includes another critical component.  As I read Rule 3(G), even if a judge’s initial (and perhaps internal) decision is that recusal is not required, the judge must nevertheless “disclose any fact or matter relevant to the question of impartiality that, in the judge’s view, may require disqualification under Rule 3(E)(1).”

In any event, back to the ABA Opinion.

The opinion divides judges’ social and personal relationships into three categories:

  1. Acquaintances
  2. Friendships
  3. Close Personal Relationships

The conclusion:

  • ” In summary, judges need not disqualify themselves if a lawyer or party is an acquaintance, nor must they disclose acquaintanceships to the other lawyers or parties. Whether judges must disqualify themselves when a party or lawyer is a friend or shares a close personal relationship with the judge or should instead take the lesser step of disclosing the friendship or close personal relationship to
    the other lawyers and parties, depends on the circumstances.”

Judicial ethics are not my bailiwick. Nevertheless, I find the final sentence in the block-quote a bit surprising.  It strikes me that “close and personal” should require recusal.  Indeed, my sense is that the Vermont bench errs on the side of caution and that our judges disclose and recuse themselves more often than the opinion suggests is required.

To me, that’s a good thing.  Like basketball, when it comes to the fairness of the judicial process, appearances matter.

By the way, Chris is still pretty terrific.  He is making a difference in this world.  Here’s Mag now:

 

Monday Morning Answers – The Fair

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

Honor Roll

  • Laura Gorsky, Esq.
  • Bob Grundstein, Esq.
  • Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
  • Jonathan Teller-Elsberg, Vermont Law School, Class of 2020,
  • Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

Which belongs somewhere else than with the others?

A lawyer shall:

  • A.   keep the client reasonably informed about the status of the matter.
  • B.   explain the matter to the extent reasonably necessary to permit the client to make informed decisions.
  • C.  in an ex parte proceeding, inform the court of all material facts known to the lawyer which will enable the court to make an informed decision
  • D.   Trick question. All 3 are in separate rules.

C is in Rule 3.3(d), and is an aspect of the larger duty of candor to a court.  A & B are parts of Rule 1.4 and the duty to communicate with a client.

Question 2

True or false.

There’s a rule that specifically requires a lawyer to make reasonable efforts to expedite litigation, consistent with the interests of the client.

TRUE – Rule 3.2

Question 3

By rule, a lawyer shall not act as an advocate in a trial in which:

  • A.  the lawyer is likely to be a “necessary witness”
  • B.  another lawyer in the lawyer’s firm is a party
  • C.  another lawyer in the lawyer’s firm is a witness
  • D.  All of the above.

This is the language from Rule 3.7 and disqualifies the lawyer who is likely to be a necessary witness from acting as an advocate at trial.  The situations in B & C are not absolute bans, but only DQ the lawyer if the relationships otherwise create a conflict.

Question 4

A client’s failure to abide by the terms of a fee agreement:

  • A.   is not grounds for a lawyer to move to withdraw
  • B.   mandates that the lawyer move to withdraw
  • C.   permits the lawyer to move to withdraw.  Rule 1.16(b)(5); See also Comment [8]
  • D.  is not covered by the rules of professional conduct

Question 5

Inspired by a recent text from one of the first people ever to follow this blog.

Bob Loblaw is the Bluth family lawyer on Arrested Development.  His advertising slogan is “You don’t need double talk, you need Bob Loblaw!”  Also, as do all great lawyers, he blogs.  His blog is the “Bob Loblaw Law Blog.”  The Bluth family hired Bob to replace the incompetent Barry Zuckerkorn.

In real life, the actors who play Loblaw and Zuckerkorn also played characters in a sitcom that debuted 30 years before Arrested Development.

Name the sitcom.

First, if you didn’t pick up on the joke, Bob Loblaw is named as such in order to sound like “blah blah blah.”  His blog is “blah, blah, blah, blah, blah.” 

Scott Baio plays Loblaw and Henry Winkler plays Zuckerkorn.   An eternity ago, the two played Chachi & Arthur Fonzarelli (Fonzie) in Happy Days.

See the source image

The Fair

Blogger’s Note: I’m on a blogging hiatus this week.  Today marks the opening day of the Champlain Valley Fair.  So, I’m re-posting a post from last year’s first day of The Fair. It ran on August 24, 2018.

*********************

She kept the hotel key.

Welcome to #128!  Vermont Route 128 is, of course, how I get to the Steeple Market, which is the official market of this blog.  And, of course, Route 128 ends in Essex, home of the Champlain Valley Fair.  Where, tonight, the gang and I are going to the Old Dominion concert.

I love the fair.  ALways have.  I’m not positive, but I think my parents used it as a baby-sitting tool when I was a kid.

Michael, take your brother to the fair.”

“Mom, it’s like 7AM.”

“Now!  And stay all day.”

“That’s what we did yesterday.”

“Michael!!!”

Latchkey kids are the best.  But, I digress.

Oddly, for liking the fair so much, I do not like rides.  Not one single bit. Mainly because I’m a big ole chicken.  I have vivid memories of paralyzing fear gripping me – – as I stood in line for a ride!  The ride itself?  Awful. Like, on a scale of 1-10, it was infinity level of awful.  I’d close my eyes and pray for the entire ride.  I think my stomach might clutch tonight if I even happen to glance at the Pirate Ship.

No, for me, it’s the food.  And the people watching.  But mostly the food.  Fried dough.  Al’s French Frys.  The magical building where every single food item is maple. I mean, seriously, how awesome is that?  EVERY SINGLE THING HAS MAPLE!  Maple!  Nature’s best condiment!  (well, after peanut butter).

But the best of them all?  Mr. Sausage.

Image result for mr. sausage champlain valley fair

Back in the day, I worked at a gas station on Shelburne Road.  My buddy Skip’s dad owned it.  Skip knew Stan Gumieny, aka Mr. Sausage, and we both knew Stan’s daughters, Julie & Jill. For 2 summers, I took a week off from working at the gas station so I could work for Stan, grilling sausages at the Fair.

Sweet Italian sausage.  Hot and spicy sausage.  Grilled peppers & onions, the greasier the better.  So much mustard that the health department might arrest you on the spot.

I don’t remember many details.  I remember it was hard work.  Hot, and busy.  And I was kind of lazy – Stan often had to yell at me not to serve sausages that were only half-cooked.  Health regulations or something silly like that.  But I had a crush on Jill, so I was more than willing to work double shifts.

And the smell.  I always loved the smell of the food at the Fair.   I know you all know what I mean.  Drop me in blindfolded and tell me to guess where I am, it’d take a millisecond. And, to this very day, even though I rarely eat it, I love the smell of sausage being grilled.

Mostly, I recall it as being fun.  Hanging out with my friends, acting like we were real restraunteurs, cranking the tunes & drinking beers as we cleaned the grills each night after closing.  Endless, in our minds. Looking back, it’s one of those things that you do, having no idea how good you have it at the time.

It was the best summer job I ever had.

Alas, as it does, life intervened.  Summers end.

I haven’t seen Skip, Jill, or Julie in forever. I don’t even know where they are.  But, I know this: tonight, whether or not he still works the grill, Stan’s Mr. Sausage stand will be at the fair, serving up fully cooked, fantastically tasty sausages.

And I’m going to have one.

Onto the quiz!

Rules

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception: if you must, open book for Question 5 . But, we try to play that one straight.
  • 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

Which belongs somewhere else than with the others?

A lawyer shall:

  • A.   keep the client reasonably informed about the status of the matter.
  • B.   explain the matter to the extent reasonably necessary to permit the client to make informed decisions.
  • C.  in an ex parte proceeding, inform the court of all material facts known to the lawyer which will enable the court to make an informed decision
  • D.   Trick question. All 3 are in separate rules.

Question 2

True or false.

There’s a rule that specifically requires a lawyer to make reasonable efforts to expedite litigation, consistent with the interests of the client.

Question 3

By rule, a lawyer shall not act as an advocate in a trial in which:

  • A.  the lawyer is likely to be a “necessary witness”
  • B.  another lawyer in the lawyer’s firm is a party
  • C.  another lawyer in the lawyer’s firm is a witness
  • D.  All of the above.

Question 4

A client’s failure to abide by the terms of a fee agreement:

  • A.   is not grounds for a lawyer to move to withdraw
  • B.   mandates that the lawyer move to withdraw
  • C.   permits the lawyer to move to withdraw
  • D.  is not covered by the rules of professional conduct

Question 5

Inspired by a recent text from one of the first people ever to follow this blog.

Bob Loblaw is the Bluth family lawyer on Arrested Development.  His advertising slogan is “You don’t need double talk, you need Bob Loblaw!”  Also, as do all great lawyers, he blogs.  His blog is the “Bob Loblaw Law Blog.”  The Bluth family hired Bob to replace the incompetent Barry Zuckerkorn.

In real life, the actors who play Loblaw and Zuckerkorn also played characters in a sitcom that debuted 30 years before Arrested Development.

Name the sitcom.

Monday Morning Answers #174

Welcome to Monday! Friday’s questions are here.  The answers follow today’s Honor Roll.

This week, I’m giving extra credit to Jack McCullough.  Jack sent me an email in which he expertly tied Question 5 to one of my favorite topics: basketball.

As you’ll see, the answer to Question 5 is John Adams and the Boston Massacre.  Jack pointed out that Crispus Attucks, one of the victims of the massacre, was the first American killed during the Revolution.  Jack added that Oscar Robertson, arguably the greatest basketball player in history, graduated from Crispus Attucks High School in Indianapolis.  Hollywood hasn’t made a move about The Big O and his high school teammates, but the story of their championship season is as compelling as any in the history of the Hoosier state.

Image result for oscar robertson

Honor Roll

  • Karen Allen
  • Matt AndersonPratt Vreeland Kennelly Martin & White
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, John Marshall Law School
  • Honorable John M. Conroy, United States Magistrate Judge, District of Vermont
  • Bob Grundstein, Esq.
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • John LeddyMcNeil, Leddy, & Sheahan
  • Deb Kirchwey, Esq.
  • Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
  • Aileen LachsMickenberg, Dunn, Lachs & Smith
  • Kevin LumpkinSheehey Furlong & Behm
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Jeff MessinaBergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Jim Runcie, Runcie & Ouimette
  • Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

A comment to one of the rules says:

“Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statement of material fact.”

The quoted language appears in a comment to the rule that requires:

  • A.  Competent representation.
  • B.  Diligent representation.
  • C.  Fairness to opposing counsel & parties.
  • DTruthfulness in statements to others.  V.R.Pr.C. 4.1.  I’ve written on “puffery” and the ethics of settlement negotiations here and here.

Question 2

Which set of rules are relaxed for (1) lawyers who move between private practice and government practice; and (2) lawyers who provide short-term legal services under the auspices of a program sponsored by a court or non-profit, and without expectation by the lawyer or client of continuing representation?

The rules on conflicts of interests.  With respect to lawyers who move between government and private practice, Vermont doesn’t impute all conflicts and allows screening.  With respect to relaxed conflicts rules & pro bono work, see Rule 6.5.

Question 3

Lawyer is holding funds in trust.  There is a legitimate dispute between Lawyer’s client and a third person as to who is entitled to a portion of the funds.  Entitlement to the remainder is not in dispute.

True or false:  Lawyer must promptly distribute all portions that are not in dispute, even before the dispute as to a particular portion is resolved.

True.  V.R.Pr.C. 1.15(e).

Question 4

I’ve asked this question before, but I’m asking it again because I’ve received multiple inquiries about the rule over the past few weeks.

The rule on trial publicity applies:

  • A.  to any lawyer who is participating in or has participated in the investigation or litigation of a matter.  V.R.Pr.C. 3.6(a).
  • B.  only to a lawyer who is participating in or has participated in the investigation of a criminal matter.
  • C.  only to prosecutors in a criminal case.
  • D.  None of the above.  There is no rule on trial publicity.

Question 5

Speaking of the Revolutionary War and the duty of competent representation, here’s a two-part question.

In an argument made during a jury trial that took place in 1770, a criminal defense attorney said:

  • “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence . . . It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished. But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, ‘whether I do good or whether I do evil is immaterial, for innocence itself is no protection,’ and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.”

Name the lawyer and the event that resulted in the lawyer’s clients being charged.

John Adams defended the British soldiers charged in connection with the Boston Massacre.

 

Image result for john adams boston massacre

 

 

Five for Friday #174

Happy Bennington Battle Day!

For those of you not in Vermont, today is an official Vermont state holiday.  We commemorate 1777’s Battle of Bennington.  The Bennington Battle Monument is one of Vermont’s tallest structures.

Bennington Battle Monument

Today, you likely can’t go too long without running into someone who will mockingly tell you that “the battle wasn’t even fought in Vermont!” To them, I say “spare me.”  We’re all aware that the battle was fought in New York.  As I’ll discuss in a moment, the reason it wasn’t fought in Vermont is because General Stark complied with the duty of competence.

Aside: one thing I learned this summer is how little I know about the Revolutionary War. A few weeks ago, I spent a Saturday afternoon in Lexington & Concord.  I stopped at several of the sites along Minute Man National Park’s so called “Battle Road Trail.” Not only did I learn a lot – for instance, I had no idea that Paul Revere’s ride ended with him being captured – I found it somewhat awe inspiring to stand on the North Bridge and try to envision what was going through the minds of those who were there in April 1775.

Anyhow, back to Stark and the Battle of Bennington.

Yes, the battle took place in New York.  However, the British goal was a Patriot supply depot in Bennington, Vermont. Upon learning that the British were in the area, Stark ordered his forces out of Bennington into a defensive perimeter that happened to be in New York.  In other words, Stark took reasonable precautions against British access to Bennington and its supply stores.

Good plan!

Tying this to professional responsibility, if your plan to protect electronically stored client data is to move it upon being notified that it’s been accessed, you might consider a better plan.  Acting after the fact isn’t a reasonable precaution against the unauthorized access to client data.

With that out of the way, something struck me as I read about the Battle of Bennington over coffee this morning:

I’d have been a terrible soldier.

Not only in battle – no doubt I’d be too scared to function under fire – but well before we even engaged the enemy.  Why?

The walking!

From what I learned this morning, many of the Patriots who fought at Bennington were from New Hampshire.  Stark rallied them in Charlestown, NH and then marched them all the way to Bennington.

Umm, no thank you.

My dad’s brother is a Revolutionary War buff.  For many years, he’s been part of a group that reenacts battles: Herrick’s Rangers, the original version of which was a Vermont-based regiment that fought at Bennington.  Some of you might know him – his name is Edmund Kennedy and he used to be a GAL in the Caledonia County courts.

My uncle and his fellow reenactors are really into detail.  Whether uniform material, muskets, cooking methods – you name it – they use & do whatever the original Herrick’s Rangers would’ve used & done.

But you know what they don’t do?  Walk from their homes to the reenactment sites!

Is it unfair that British tea is exempt from the tax on my preferred Dutch tea?  Yes it is! But if fighting you over it means I have to walk all over northern New England to get shot at it, let me think about that for a minute.

Thankfully for this nation, I wasn’t around back then.

Onto the quiz!

Rules

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception – but one that is loosely enforced – #5 (“loosely” = “aspirational”)
  • 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

A comment to one of the rules says:

“Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statement of material fact.”

The quoted language appears in a comment to the rule that requires:

  • A.  Competent representation.
  • B.  Diligent representation.
  • C.  Fairness to opposing counsel & parties.
  • D.  Truthfulness in statements to others.

Question 2

Which set of rules are relaxed for (1) lawyers who move between private practice and government practice; and (2) lawyers who provide short-term legal services under the auspices of a program sponsored by a court or non-profit, and without expectation by the lawyer or client of continuing representation?

Question 3

Lawyer is holding funds in trust.  There is a legitimate dispute between Lawyer’s client and a third person as to who is entitled to a portion of the funds.  Entitlement to the remainder is not in dispute.

True or false:  Lawyer must promptly distribute all portions that are not in dispute, even before the dispute as to a particular portion is resolved.

Question 4

I’ve asked this question before, but I’m asking it again because I’ve received multiple inquiries about the rule over the past few weeks.

The rule on trial publicity applies:

  • A.  to any lawyer who is participating in or has participated in the investigation or litigation of a matter.
  • B.  only to a lawyer who is participating in or has participated in the investigation of a criminal matter.
  • C.  only to prosecutors in a criminal case.
  • D.  None of the above.  There is no rule on trial publicity.

Question 5

Speaking of the Revolutionary War and the duty of competent representation, here’s a two-part question.

In an argument made during a jury trial that took place in 1770, a criminal defense attorney said:

  • “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence. It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished. But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, ‘whether I do good or whether I do evil is immaterial, for innocence itself is no protection,’ and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.”

Name the lawyer and the event that resulted in the lawyer’s clients being charged.

The Future of Attorney Regulation is Proactive.

Within the world of attorney regulation, there is a trend towards Proactive Management Based Regulation (“PMBR”).  In this post, the Legal Ethics Forum provided one of the more concise descriptions of PMBR that I’ve seen:

  • “With PMBR, the regulator works with lawyers to address risks to avoid problems, rather than reacting to attorney misconduct after it has occurred.”

In other words, focusing as much on preventing fires as putting them out.

To date, PMBR has been implemented in Australia and Canada.  Two states, Colorado and Illinois, have formally adopted it.  Many other states are moving towards it.

The PMBR movement received a welcome boost last week.  The ABA’s House of Delegates approved Resolution 107.   The text:

“RESOLVED: That the American Bar Association urges each state’s highest court, and those of each territory and tribe, to study and adopt proactive management-based regulatory programs appropriate for their jurisdiction, as a way to enhance compliance 4 with applicable rules of professional conduct and supplement existing disciplinary enforcement mechanisms, and to:

a. assist lawyers, law firms, and other entities in which lawyers practice law in the development and maintenance of ethical infrastructures that help to prevent violations of applicable rules of professional conduct;

b. reduce complaints to lawyer disciplinary authorities;

c. enhance lawyers’ provision of competent and cost-effective legal services; and

d. encourage professionalism and civility in the profession.”

The sponsors’ Executive Summary (page 83) urges adoption of “proactive
management-based regulatory (PMBR) programs to enhance compliance with
applicable rules of professional conduct and supplement existing disciplinary
enforcement mechanisms.”

I culled some additional statements from the Executive Summary and will present them as bullet points:

  • “PMBR programs operate separately from the disciplinary process.”
  • “PMBR programs offer a systemic preventive approach to help lawyers, and the entities where they practice law, develop ethical infrastructures to improve the delivery of competent and cost-effective legal services.”
  • “PMBR programs encourage professionalism and civility, and change for the better the relationship between the regulator and regulated.”
  • “PMBR programs provide lawyers with an array tools, including self-assessment
    checklists and online programming, to help them and the entities where they
    practice law develop ethical infrastructures and identify where they may need
    additional skills, training, and education.”
  • “PMBR programs are not one-size-fits-all, may be crafted to meet the needs of each
    jurisdiction, and are reasonable in cost.”

Here in Vermont, we’ve not formally adopted PMBR.  However, we’ve made several of its principles central to the Professional Responsibility Program’s mission.

For example, many of you know that I was disciplinary counsel from 2000-2012.  That entire time, I had a full-time deputy and we reviewed, on average, 246 new disciplinary complaints per year.  During the same period, bar counsel was half-time and responded to, on average, 234 ethics inquiries per year.

Our default, indeed our very set-up, was to react.

In 2012, under the leadership of then-chair Jan Eastman, the Professional Responsibility Board recommended that the Court reallocate resources with the PRP.  The crux: make bar counsel a full-time position, reduce deputy disciplinary counsel to a half-time position.

It worked.

FY                         Disciplinary Complaints                               Inquiries of Bar Counsel 2013                                    285                                                                                   627            2014                                    243                                                                                   750               2015                                    208                                                                                   827               2016                                    181                                                                                   1,100               2017                                    140                                                                                   1,109               2018                                    149                                                                                   1,263

(I’ve previously blogged on the inquiry process and the changes that we made in 2012.)

This is without getting into the sizeable increase in the number of continuing legal education seminars that we present, our focus on issues like civility, wellness, and tech competence, and the fact that, now, we resolve most complaints at screening without referring them to disciplinary counsel, thereby freeing up disciplinary counsel to focus on serious misconduct.

But there’s more we can do for you.

I’ve followed the programs implemented in Colorado and Illinois.  Further, I’m a member of the National Organization of Bar Counsel, one of the strongest leaders in the PMBR movement.  I’ve got some ideas.  Stay tuned.

For now, remember: the future of regulation is proactive.

Image result for images of proactive

 

Monday Morning Answers #173

Welcome to Monday!  Friday’s questions are here.  The answers follow today’s Honor Roll.

PS: as a blogger & son, when you have plans to go to Sunday brunch with your mother, it’s best not to post a Friday blog in which you announce that you don’t have anything special planned for the weekend.  Brunch was extraordinary!  Thanks mom!

Honor Roll

Answers

Question 1

Does the rule on client confidences permit a lawyer to disclose otherwise confidential information related to the representation of a client in order to secure legal advice about the lawyer’s compliance with the Rules of Professional Conduct?

Question 2

There’s a rule that requires lawyers to act with reasonable diligence and promptness while representing a client.  A comment to the rule states that the duty of diligence may require sole practitioners to:

  • A.   use a cloud-based practice management system
  • B.   employ a bookkeeper, at least part-time
  • C.   prepare a succession plan.  V.R.Pr.C. 1.3, Comment [5]
  • D.  all the above

Question 3

There’s a rule that prohibits a lawyer from disbursing funds from trust unless the funds are “collected funds.”

Is the following statement true or false?

“The rule includes an exception that allows a lawyer to disburse funds from trust in reliance upon the deposit of specified instruments, as long as the lawyer reasonably believes that the deposits will clear and constitute collected funds within a reasonable period of time.”

True.  It’s Rule 1.15(g).

Question 4

Attorney called me with an inquiry.  I listened, then replied “by rule, any communication made pursuant to the rule must include the name and office address of at least one lawyer or law firm responsible for its content.”

I was referring to the rule on:

  • A.   Communicating with a represented person
  • B.   Communicating with an unrepresented person
  • C.   Communicating with a prospective juror
  • D.   Advertising.  V.R.Pr.C. 7.2(c)

Question 5

Richard Roberts is a real-life lawyer.  Earlier this week, he was disbarred on consent in New Jersey after being convicted of several crimes, including theft of client funds.

Roberts is a former narcotics detective & prosecutor who gained renowned for his role in the investigation and prosecution of Frank Lucas, an alleged “drug kingpin” in New York City.  Roberts eventually moved into private practice as a criminal defense attorney. Upon switching sides, one of his first clients was Lucas.

The history between Roberts and Lucas was the subject of a 2007 movie in which Russell Crowe played the now-disbarred Roberts and Denzel Washington played Lucas.  Ridley Scott directed.

Name the movie.

AMERICAN GANGSTER

Image result for american gangster images