Monday Morning Honors #261

Happy Monday! 

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

Honor Roll

  • Evan Barquist, Montroll Oettinger & Barquist
  • Alberto Bernabe, Professor, UIC School of Law
  • Beth DeBernardi, Administrative Law Judge, Vermont Department of Labor
  • Benjamin Gould, Paul Frank + Collins
  • Robert Grundstein
  • Keith Kasper, McCormick, Fitzpatrick, Kasper and Burchard
  • John T. Leddy, McNeil, Leddy, Sheehan
  • Pam Loginsky, Deputy Prosecuting Attorney, Pierce County, Tacoma, WA
  • Kevin Lumpkin, Sheehey Furlong & Behm
  • Brad Martin, Baystate Financial
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeffrey Messina, Messina Law
  • Hal Miller, Hawaii Agency Underwriting Counsel, First American Title Insurance
  • James Remsen, Master Planner, Parker Hannafin
  • Keith Roberts, Darby Kolter & Roberts
  • Jason Warfield, J.D.
  • The Honorable John Valente, Vermont Superior Judge
  • Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

Which of the 7 Cs of Legal Ethics refers specifically to funds & property?

COMMINGLING.

Tip:  V.R.Pr.C. 1.15(a) requires a lawyer to keep funds & property of clients and third persons separate from the lawyer’s own.  There is an exception for funds deposited in trust “for the sole purpose of paying service charges or fees on [the] account, but only in an amount necessary for that purpose.”  The most common cause of “commingling” a lawyer’s failure to remove an earned fee from trust.  Remember: as I pointed out in Trust Accounting in a Nutshell, commingling can also result from improper handling of a fee that is paid in advance and that complies with Rule 1.5(f).

Question 2

Lawyer called me with an inquiry.  I listened, then responded “one of the situations that requires it is when continued representation will result in a violation of the Rules of Professional Conduct.”

Given my response, what does “it” refer to?  Whether Lawyer must _______:

  • A.   self-report to Disciplinary Counsel.
  • B.   disclose confidential information over a client’s objection.
  • C.   withdraw from representing a client.  V.R.Pr.C. 1.16(a)(1).
  • D.   put Lawyer’s malpractice insurance carrier on notice of a potential claim.

Question 3

Attorney represents Client.  At the outset of the relationship, Client advanced a fee that Attorney billed against.  When the matter resolved, Client was so pleased that Client lauded Attorney’s virtues in a public comment posted to Attorney’s firm’s social media page.

What do the rules require Attorney to keep for 6 years?

  • A.  Client’s confidences and secrets.
  • B.  Records of funds held on behalf of Client.  V.R.Pr.C. 1.15(a)(1).
  • C.  A “copy’ of the social media page because it’s an “advertisement.”
  • D.  A copy of Client’s file.

Answer (A) is not correct.  Unless disclosure is permitted or required by the rules, a former client’s confidences must be kept forever.

Answer (C) is not correct. The rule requiring lawyers to keep copies of advertisements was repealed long ago. And, when it was in place, it required ads to be kept for 2 years.

Answer (D) is not correct.  There is no requirement for a lawyer to keep a “copy” of a client’s file.  Rather, Rule 1.169d) requires a lawyer to deliver “papers and property” to which the client is entitled upon the termination of the representation. 

Question 4

There are two types of cases in which a contingent fee is prohibited.  Name them.

  • V.R.Pr.C. 1.5(d)(2) prohibits a contingent fee for representing a defendant in a criminal case.
  • V.R.Pr.C. 1.15(d)(1) prohibits a fee “which is contingent upon the securing of a divorce or upon or upon the amount of spousal maintenance or support, or property settlement in lieu thereof.”

NOTE: the rule ALLOWS contingent fees “in domestic relations matters which involve the collection of (i) spousal maintenance after a final judgment is entered, or (ii) child support and maintenance supplement arrearages due after final judgment, provided that the court approves the reasonableness of the fee agreement.  This can be an excellent tool to provide access to legal services.

Question 5

Earlier this week, the Academy of Arts & Television continued its embarrassing tradition of snubbing Better Call Saul.  Yet again, the show did not receive a single Primetime Emmy.  In protest, and because Jimmy McGill/Saul Goodman is my favorite ethically challenged fictional lawyer, I’m devoting Question 5 to the show for the second time in three quizzes. 

Doing so is quite timely.  Tomorrow is ___________ Day.  The word that properly fills in the blank is quite relevant to the legal profession.  It’s also the answer to this question:

In both Better Call Saul and Breaking Bad, what’s on the wallpaper in Saul’s office? 

Here’s a hint that might help people who have never seen the show.

Today is September 16. On this day in 1830, Oliver Wendell Holmes, Sr. (father of Supreme Court Justice Oliver Wendell Holmes, Jr.) wrote a poem. The poem is widely considered to have saved a US Naval vessel from being decommissioned. The vessel, which is now the oldest commissioned ship in the navy, is named after the answer to Question 5.

Saul’s wallpaper shows The Constitution of the United States.   Saturday was Constitution Day.  And Oliver Wendell Holmes’s Old Ironsides is a poem about the USS Constitution.

Five for Friday #261

Welcome to Friday and the 261st legal ethics 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

Which of the 7 Cs of Legal Ethics refers specifically to funds & property?

Question 2

Lawyer called me with an inquiry.  I listened, then responded “one of the situations that requires it is when continued representation will result in a violation of the Rules of Professional Conduct.”

Given my response, what does “it” refer to?  Whether Lawyer must _______:

  • A.   self-report to Disciplinary Counsel.
  • B.   disclose confidential information over a client’s objection.
  • C.   withdraw from representing a client.
  • D.   put Lawyer’s malpractice insurance carrier on notice of a potential claim.

Question 3

Attorney represented Client.  At the outset of the relationship, Client advanced a fee that Attorney deposited into trust and billed against.  When the matter resolved, Client was so pleased that Client lauded Attorney’s virtues in a public comment posted to Attorney’s firm’s social media platforms.

What do the rules require Attorney to keep for 6 years?

  • A.  Client’s confidences and secrets.
  • B.  Records of funds held on behalf of Client.
  • C.  A “copy” of the comment on the social media platforms because it is an “advertisement.”
  • D.  A copy of Client’s file.

Question 4

There are two types of cases in which a contingent fee is prohibited.  Name them.

Question 5

Shout out to my friend Brad Martin!

Earlier this week, the Academy of Television Arts & Sciences continued its embarrassing tradition of snubbing Better Call Saul.  Yet again, the show did not receive a single Primetime Emmy.  In protest, and because Jimmy McGill/Saul Goodman and Kim Wexler are my favorite ethically challenged fictional lawyers, I’m devoting Question 5 to the show for the second time in three quizzes. 

Doing so is quite timely.  Tomorrow is ___________ Day.  The word that properly fills in the blank is very much a part of the legal profession.  It’s also the answer to this question:

In both Better Call Saul and Breaking Bad, what’s on the wallpaper in Saul’s office? 

Here’s a hint that might help people who have never seen the show.

Today is September 16. On this day in 1830, Oliver Wendell Holmes, Sr. (father of Supreme Court Justice Oliver Wendell Holmes, Jr.) wrote a poem. The poem is widely considered to have saved a US Naval vessel from being decommissioned. The vessel, which is now the oldest commissioned ship in the navy, is named after the answer to Question 5.

Supreme Court approves amendments to the Vermont Rules of Professional Conduct

Earlier this week, the Vermont Supreme Court approved several amendments to the Vermont Rules of Professional Conduct.  The Court’s order is here.  Last spring, I recorded this video in which I summarized the proposed amendments.  The new rules go into effect on November 14.  Here’s a recap:

Rule 1.2 – Scope of Representation and Allocation of Authority Between Client & Lawyer

Paragraph (c) has been amended to require a lawyer who assists a person to prepare documents that the lawyer knows the person will file in court to comply with any court rules that might require a seemingly self-represented litigant to disclose having received legal assistance.  For example, Second Circuit Local Rule 32.2.

Comment [5] was added. Among other things, it makes clear that civility to others is not inconsistent with a lawyer’s duty to their client.

Comment [14] was amended to reflect changes to Vermont’s cannabis laws.

Rule 1.6 – Confidentiality

The rule prohibits the disclosure of information relating to the representation of a client.

New paragraph (c)(3) creates an exception to secure guidance from bar counsel.

New paragraph (c)(5) creates a limited exception to detect conflicts of interest when changing jobs.

New paragraph (d) creates an affirmative duty to make reasonable efforts to prevent the inadvertent disclosure of or unauthorized access to client information.

Rule 1.15A – Trust Accounting System

Only lawyers who are admitted to practice law in Vermont and people who work under their direct supervision can sign trust account checks or initiate transfers or disbursements from the trust account.

Trust account checks must be made to a named payee and cannot be made to “cash.”

Rule 4.4 – Respect for Rights of Third Persons

The duty to notify the sender upon receiving information that the lawyer knows or should know was inadvertently sent has been expanded to “information” from “document.”

Rule 5.3 – Responsibilities Regarding Nonlawyers Assistants

Comments were added to clarify the scope of a lawyer’s duties to ensure that nonlawyer assistants act in a way that is compatible with the lawyer’s professional obligations.

Rule 5.5 – Unauthorized Practice of Law

Comment [22] was added to clarify that lawyers who are not admitted to practice law in Vermont do not necessarily engage in the unauthorized practice of law by working remotely from Vermont. 

Rule 8.3 – Reporting Professional Misconduct

Comment [4] was amended to clarify that an inquiry of bar counsel does not satisfy the duty to report to another lawyer’s misconduct.

Rule 8.4 – Misconduct

Paragraph (b) prohibits lawyers from engaging in conduct that involves a “serious crime.”  The amendment broadens the definition of “serious crime.”

Monday Morning Honors #260

Happy Monday! 

Thanks to all who wished the First Brother well!  He made it from Dunmore to Gettysburg, where he’ll spend this week camping near the battleground before continuing the trek to Savannah on Friday. 

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

Honor Roll

  • Evan Barquist, Montroll Oettinger & Barquist
  • Alberto Bernabe, Professor, UIC School of Law
  • Amy Butler, Amy Butler Law
  • Robert Grundstein
  • Keith Kasper, McCormick, Fitzpatrick, Kasper and Burchard
  • Jeanne Kennedy, JB Kennedy Associates, Mother (of the) Blogger
  • Patrick Kennedy, Amazon Web Services, First Brother
  • John T. Leddy, McNeil, Leddy, Sheehan
  • Pam Loginsky, Deputy Prosecuting Attorney, Pierce County, Tacoma, WA
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Susan McManus, Office of the Public Defender, Bennington County
  • Jeffrey Messina, Messina Law
  • James Remsen, Master Planner, Parker Hannafin
  • Keith Roberts, Darby Kolter & Roberts
  • James Runcie, Ouimette & Runcie
  • Nikki Stevens, Firm Administrator, Langrock Sperry & Wool
  • Jonathan Teller-Elsberg, Sheehey Furlong & Behm
  • Jason Warfield, J.D.
  • Jack Welch, Esq.
  • Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

Of the 7Cs of Legal Ethics, which specifically mentions “information related to the representation” in the rule that governs that C?

CONFIDENTIALITY.  V.R.Pr.C. 1.6(a) states that “a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation, or the disclosure is required by paragraph (b) or permitted by paragraph (c).

The phrase “information related to the representation” is important.  Remember, as Comment [3] makes clear, Rule 1.6 “applies not only to matters communicated in confidence by the client, but to all information relating to the representation, whatever the source.”

Question 2

Yesterday I blogged about an order in which a New York trial judge sanctioned lawyers for uncivil and obstructive conduct during a deposition. 

Let’s imagine a similar incident involving a deposition that’s taken in a Vermont matter.  One of Vermont’s Rules of Professional Conduct makes it a violation for a lawyer to “engage in undignified or discourteous conduct which is degrading or disruptive to a tribunal.” 

Does the rule apply at a deposition?

  • A.           No.  A comment to the rule specifically leaves control of depositions to the trial courts.
  • B.           No, but a comment to the rule cautions lawyers against conduct that would be prohibited in court.
  • C.           Yes.  This is Rule 3.5(d).  As Comment [5] points out, the rule applies to “any proceeding of a tribunal.”  Rule 1.0(m) includes defines “tribunal” to include a deposition.

Question 3

Fill in the blank.  The same word goes in each blank.  What is it?

There’s a rule that sets out a lawyer’s duties when dealing with an __________ person.  The duties include not stating or implying that the lawyer is “disinterested,” and correcting any misunderstanding that the lawyer knows or reasonably should know that the __________ person has about the lawyer’s role.  A comment to the rule states that the “rule does not prohibit a lawyer from negotiating terms of a transaction or settling a dispute with the __________ person.”

Unrepresented.  This is V.R.Pr.C. 4.3.

Question 4

Lawyer called me with an inquiry.  I listened, then responded that “a comment to the rule, states that ‘matters are substantially related if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the new matter.’”

Lawyer didn’t contact me to discuss confidentiality.  Rather, given my response, Lawyer contacted me because Lawyer was concerned about, what?

A CONFLICT OF INTEREST between a client (or prospective client) and a former clientV.R.Pr.C. 1.9 prohibits a lawyer from representing a client whose interests are materially adverse to the interests of a former client in a matter that is the same as or substantially related to the matter in which the lawyer represented the former client.

Question 5

When the First Brother arrives in Savannah, he’ll be just over 200 miles southeast of Monticello, GA.  A movie that the American Bar Association has ranked as one of the Top 3 of all-time was filmed in Monticello. 

While most fans associate the movie with a neighboring state and its mud, in fact, the convenience store and courthouse that feature so prominently in the film are in Georgia.  In 2019, then federal judge Merrick Garland wrote an opinion in which he made numerous references to the movie, including a statement that the lead character “taught a master class in cross-examination.”

Name the movie.

MY COUSIN VINNY.

The Sac-O-Suds and Jasper County Historic Courthouse are in Monticello, Georgia.

Five for Friday #260

Welcome to Friday and the 260th #fiveforfriday legal ethics quiz!

I suppose I could concoct an intro that involves 260 or 8/26.  Alas, that would require effort, an ingredient not exactly coursing through my veins this morning.  I’m posting from the shores of Lake Dunmore, enjoying coffee and the late stages of the sunrise.  Putting too much effort into an intro seems inconsistent with the vibe, especially a mere 48 hours removed from my post Don’t Stresslax.

So, instead, I’ll use this space to wish fare winds and a following sea to The First Brother. Tonight is his last in Vermont, as tomorrow he officially sets out for Savannah, where adventure and temperate winters await. He closed on his Vermont place Monday and has spent the week here at Dunmore, resting before pulling his camper south.  While I will miss him, I’m happy for him and look forward to posting January and February quizzes from the new abode.

As I blogged the prior paragraph, a bit of effort entered by body. 

According to my research, it’s 1084.6 miles from Burlington to Savannah.  The First Brother’s condo was slightly south of downtown, so let’s call his upcoming trek 1084 miles.

260 + 826 = 1084.

To the First Brother!

Onto the quiz!

Rules

  • None.  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 consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

Of the 7Cs of Legal Ethics, which specifically mentions “information related to the representation” in the rule that governs that C?

Question 2

Yesterday I blogged about an order in which a New York trial judge sanctioned lawyers for uncivil and obstructive conduct during a deposition. 

Let’s imagine a similar incident involving a deposition that’s taken in a Vermont matter.  One of Vermont’s Rules of Professional Conduct makes it a violation for a lawyer to “engage in undignified or discourteous conduct which is degrading or disruptive to a tribunal.” 

Does the rule apply at a deposition?

  • A.           No.  A comment to the rule specifically leaves control of depositions to the trial courts.
  • B.           No, but a comment to the rule cautions lawyers against conduct that would be prohibited in court.
  • C.           Yes.

Question 3

Fill in the blank.  The same word goes in each blank.  What is it?

There’s a rule that sets out a lawyer’s duties when dealing with an __________ person.  The duties include not stating or implying that the lawyer is “disinterested,” and correcting any misunderstanding that the lawyer knows or reasonably should know that the __________ person has about the lawyer’s role.  A comment to the rule states that the “rule does not prohibit a lawyer from negotiating terms of a transaction or settling a dispute with the __________ person.”

Question 4

Lawyer called me with an inquiry.  I listened, then responded that “a comment to the rule, states that ‘matters are substantially related if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the new matter.’”

Lawyer didn’t contact me to discuss confidentiality.  Rather, given my response, Lawyer contacted me because Lawyer was concerned about, what?

Question 5

When the First Brother arrives in Savannah, he’ll be just over 200 miles southeast of Monticello, GA.  A movie that the American Bar Association has ranked as one of the Top 3 of all-time was filmed in Monticello. 

While most fans associate the movie with a neighboring state and its mud, in fact, the convenience store and courthouse that feature so prominently in the film are in Georgia.  In 2019, then federal judge Merrick Garland wrote an opinion in which he made numerous references to the movie, including a statement that the lead character “taught a master class in cross-examination.”

Name the movie.

High School Basketball and an Order Imposing Sanctions for Incivility

My high school basketball coach expressed displeasure in various ways.  There was one method that we feared the most. He didn’t use it often, but when he did, it was often the last time he had to use it with the offending player.  Here’s how it worked.

Imagine that I did something egregious at practice.  “Egregious” in the behavioral sense, not because I missed yet another shot or made a typically errant pass.  Coach would make me sit on the stage while my teammates ran sprints because of my egregious behavior.  As they ran, Coach would bring me water and go overboard to make sure I was comfortable. 

Most players in my predicament desperately pled to be allowed to run in their teammates’ stead.  Or, at the very least, begged to join them in serving the punishment.  Nope.  Coach insisted on me resting while my teammates paid the price of my conduct.

Being made an example of worked. I don’t remember a single player having it happen more than once.

Yesterday I read an order issued by a New York trial court in response to a motion for sanctions.  It reminded me of Coach’s tactic. The order is here.[i] Here’s my summary.

Following a deposition in a civil suit, counsel for the defense moved for sanctions against plaintiff’s counsel and an attorney who represented the witness.  According to the court,

  • “The deposition transcript of 175 pages speaks for itself and need not be repeated. Suffice it to say that [Attorney 1], counsel to the witness, interjected 187 times with improper speaking objections and/or colloquy, while [Attorney 2], counsel for plaintiff, interjected 114 times with improper speaking objections and/or colloquy. Counsel instructed the witness not to answer 30 questions without any lawful basis.” (internal citation omitted).

The court noted:

  • “Improper deposition behavior not only thwarts the deposition but tarnishes the profession. Offensive and abusive language by attorneys in the guise of zealous advocacy is plainly improper, unprofessional, and unacceptable.”

In the end, the court sanctioned the lawyers. It ordered them to conduct themselves in a civil manner going forward, pay attorney’s fees associated with the deposition and the motion for sanctions, and make monetary payments to New York’s Client Security Fund. 

In addition, and most pertinent to this post, the court ordered the attorneys to attend a CLE on civility within 30 days and to attest to the court that they’d attended and read the “standards of civility.”  The court included this footnote:

  • “Counsel are referred to the NYS Bar Association which sponsors a regular CLE on civility taught by Vince Syracuse, Esq. The transcript in this matter, with appropriate redactions, will be shared with Mr. Syracuse for use in his seminar as an example of uncivil sanctionable behavior.”

Given the court’s language, it’s possible that the CLE at which the transcript of their deposition will be used “as an example of uncivil sanctionable behavior” is not the same CLE that they are required to attend. Still, on the chance that it might be the same CLE, it reminded me of Coach. 

In basketball, nobody wanted to be that player that Coach sent to the stage while the others ran.

Similarly, in law, nobody wants to be that lawyer who I’m using as an example at my next CLE. But who am I to disregard a court order?

As always, let’s be careful out there.

Related Posts


[i] I can’t remember how or where I came across it. 

Monday Morning Honors #259

Happy Monday!  Only one more before Labor Day.  Make sure to enjoy the last few weeks of the unofficial end of summer!

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

Many thanks to all who informed me that it’s perfectly okay, and perhaps desirable, to clip the flowers growing on my basil. 

Honor Roll

  • Alberto Bernabe, Professor, UIC School of Law
  • Martha Bonneau, Blogger’s Aunt
  • Beth DeBernardi, Administrative Law Judge, Vermont Department of Labor
  • Robert Grundstein
  • Glenn Jarrett, Jarrett/Hoyt
  • Keith Kasper, McCormick, Fitzpatrick, Kasper and Burchard
  • Jeanne Kennedy, JB Kennedy Associates, Mother (of the) Blogger
  • Mark Kennedy, Retired, Father of the Blogger
  • Patrick Kennedy, Amazon Web Services, First Brother
  • John T. Leddy, McNeil, Leddy, Sheehan
  • Jonathan Teller-Elsberg, Sheehey Furlong & Behm
  • Jason Warfield, J.D.

Answers

Question 1

I often discuss the 7 Cs of Legal Ethics. At a recent seminar, I used a quote from George Bernard Shaw to discuss one of the 7 Cs.  In my view, Shaw’s quote accurately captures a dynamic that, in my experience, leads clients to file disciplinary complaints.  Fill in the blank with the correct C.

“The greatest problem in communication is the illusion that it has been accomplished.”

I agree.  Many disciplinary complaints aren’t caused so much by a lack of communication as they are by miscommunication: the lawyer thinking the matter was explained to the client when it wasn’t.

Question 2

While I haven’t blogged much lately, one of my recent posts highlighted a real-life example of how reconciliation helped a Vermont firm to stop trust account fraud.  It was the third such example I’d blogged about this year. 

What’s the rule on reconciling pooled interest-bearing trust accounts?  It must occur:

  • A.           “regularly.”
  • B.           “quarterly.”
  • C.           “in a manner consistent with generally accepted accounting principles.”
  • D.           “timely.”  The rule goes on to state that “timely reconciliation means, at a minimum, monthly reconciliation of such accounts.” 

My posts on reconciliation as a tool to prevent trust account fraud are here, here, and here.

Question 3

Saul represents Client.  Kim represents Opposing Party.  Unbeknownst to Lawyer, Client contacts Attorney to discuss the subject of the representation.  Does the rule allow Kim to discuss the matter with Client?

  • A.           No.  See, V.R.Pr.C. 4.2, Comment [3] (“The rule applies even though the represented person initiates or consents to the communication.)
  • B.           Yes, because a party is always free to contact opposing counsel.
  • C.           Yes.  The comments make clear that, in this situation, Client has consented to the communication. 
  • D.           Wait.  Kim & Saul are still licensed to practice.

Question 4

Lawyer called me with an inquiry.  I listened, then replied.  “You’re definitely out.  Whether your conflict is imputed to all depends on whether it presents a significant risk of materially limiting the representation of the client by the other lawyers in your firm.”

Given my response, Lawyer’s conflict involved:

  • A.           A personal interest.   The question refers to Vermont’s rule on imputed conflicts of interest.  My response, and answer A, reflect the standard set out in V.R.Pr.C. 1.10(a).  By contrast, situations B and C are always imputed.
  • B.           A former client.
  • C.           A current client.
  • D.           Lawyer’s paralegal.

Question 5

Questions 3 and 4 don’t do it justice.  So, while this one might only interest me, I’d be disappointed in myself if I didn’t use this week’s Question 5 to reference Monday’s series finale of my favorite “law” show of all-time.

Here is a license plate that hangs in my garage.

I’d love to add signs from “Palm Coast Sprinklers,” “Ice Station Zebra Associates,” or this one:

In real-life, audiences first saw the license plate on a different show.  However, on the two shows’ fictional timeline, the plate first appeared in the show that ended this week — on a car driven by the eponymous lawyer of questionable ethics.  While easy to like the lawyer — and the show’s other lawyers — it’s tough to believe that many of them still have their law licenses.

Name the show whose final episode aired earlier this week.

BETTER CALL SAUL

Bonus: in the same show, another license plate featured prominently in several episodes. It was on a Jaguar owned by a lawyer mentioned in Question 4. What was the license plate?

Howard Hamlin’s Jaguar bore the plate NAMAST3

Five for Friday #259

Welcome to Friday and the 259th legal ethics quiz.

I’ve struggled to find the motivation to blog over the past few months.  Today hasn’t been much different.  However, this morning, I managed to create this video, which will serve as this week’s official intro.  I’m finally getting around to posting the blog that goes with it.  In the video, I discuss why I’m not in the garage, my new hobby, and lucky numbers.

Yes, lucky numbers.

When it comes to numbers, I consider many to be lucky and even more to be unlucky.  As I mention in the video, I don’t know why I’m so much more than just a little stitious about numbers.  Well, it turns out, science itself agrees that some numbers are, in fact, lucky!

The best part?

One of the numbers officially recognized as “lucky” by science & mathematicians?

259!!!

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 consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

 I often discuss the 7 Cs of Legal Ethics. At a recent seminar, I used a quote from George Bernard Shaw to discuss one of the 7 Cs.  In my view, Shaw’s quote accurately captures a dynamic that, in my experience, leads clients to file disciplinary complaints.  Fill in the blank with the correct C.

“The greatest problem in ____________ is the illusion that it has been accomplished.”

Question 2

While I haven’t blogged much lately, one of my recent posts highlighted a real-life example of how reconciliation helped a Vermont firm to stop trust account fraud.  It was the third such example I’d blogged about this year.

What’s the rule on reconciling pooled interest-bearing trust accounts?  It must occur:

  • A.  “regularly.”
  • B.  “quarterly.”
  • C.  “in a manner consistent with generally accepted accounting principles.”
  • D.  “timely.”  The rule goes on to state that “timely reconciliation means, at a minimum, monthly reconciliation of such accounts.”

Question 3

 Saul represents Client.  Kim represents Opposing Party.  Unbeknownst to Saul, Client contacts Kim to discuss the subject of the representation.  Does the rule allow Kim to discuss the matter with Client?

  • A. No.
  • B.  Yes, because a party is always free to contact opposing counsel.
  • C.  Yes.  The comments make clear that, in this situation, Client has consented to the communication.
  • D. Wait.  Kim & Saul are still licensed to practice?

Question 4

Lawyer works at the firm Hamlin, Hamlin, McGill.  Lawyer called me with an inquiry.  I listened, then replied.  “You’re definitely out.  Whether your conflict is imputed to rest of HHM depends on whether it presents a significant risk of materially limiting the representation of the client by the other lawyers at the firm.”

Given my response, Lawyer’s conflict involved:

  • A.  A personal interest of Lawyer.
  • B.  A former client.
  • C. A current client.
  • D. Lawyer’s paralegal.

Question 5

Questions 3 and 4 don’t do it justice.  So, while this one might only interest me, I’d be disappointed in myself if I didn’t use this week’s Question 5 to reference Monday’s series finale of my favorite “law” show of all-time.

Here is a license plate that hangs in my garage.

IMG_7399

I’d love to add signs from “Palm Coast Sprinklers,” “Ice Station Zebra Associates,” or this one:

Los Pollos Hermanos - Wikipedia

In real-life, audiences first saw the license plate on a different show.  However, on the two shows’ fictional timeline, the plate first appeared in the show that ended this week — on a car driven by the eponymous lawyer of questionable ethics.  While easy to like the lawyer — and the show’s other lawyers — it’s tough to believe that many of them still have their law licenses.

Name the show whose final episode aired earlier this week.

Bonus: in the same show, another license plate featured prominently in several episodes. It was on a Jaguar owned by a lawyer mentioned in Question 4. What was the license plate?

 

 

 

 

 

Monday Morning Honors #258

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

Honor Roll

  • Karen Allen, Karen Allen Law
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, UIC School of Law
  • Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labo
  • Andy Delaney, Martin Delaney & Ricci
  • Cary Dube, Bergeron Paradis & Fitzpatrick
  • Erin Gilmore, Ryan Smith & Carbine
  • Benjamin Gould, Paul Frank + Collins
  • Harrison GregoireJD Candidate, Syracuse LawSummer Intern, Gale & McCallister
  • Robert Grundstein
  • Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
  • John T. Leddy, McNeil Sheehan & Leddy
  • Kevin Lumpkin, Sheehey Furlong & Behm
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeff Messina, Messina Law
  • Hal Miller, Hawaii Agency Underwriting Counsel, First American Title
  • Team MOB
  • Nikki Stevens, Firm Administrator, Langrock Sperry & Wool
  • Jonathan Teller-Elsberg, Sheehey Furlong & Behm
  • The Honorable John Valente, Vermont Superior Judge
  • Jason Warfield, J.D.

 Answers

Question 1

According to the Rules of Professional Conduct, which of the 7 Cs of Legal Ethics is implicated when a lawyer provides “financial assistance to a client in connection with pending or contemplated litigation?”

Conflicts.  The quote is from paragraph (e) of Rule 1.8 – Conflict of Interest – Current Clients – Specific Rules

Question 2

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

“Be wary of disclosing too much. I think it’s best to cite to the specific provision of the rule that either requires it or allows it. Then, if the court asks for additional detail, provide it. I’ll send you a case from Tennessee in which a lawyer was publicly reprimanded for disclosing too much information in a motion, even though the trial court granted the motion.”

What did Attorney call to discuss?  Filing ______

  • A.  a motion to withdrawFor more, see Stop Making Noise.
  • B.  an ex parte motion.
  • C.  a motion to disqualify the judge.
  • D.  a motion to disqualify opposing counsel.

Question 3

 There’s a rule that governs “pooled interest-bearing trust accounts.”  Nobody I know calls such accounts by their formal name.  Anyhow, what is a pooled interest-bearing trust account?

  • A. unethical and prohibited by the rule.
  • B. an account that’s better known as an “operating account.”
  • C. an account that generates interest that a lawyer must remit to the client.
  • D. an account that generates interest that a lawyer must remit to the Vermont Bar Foundation. Rule 1.15B – Pooled Interest-Bearing Trust Accounts

Question 4

 Later today, I’m presenting at the Defender General’s Annual Training.  While I don’t plan to address this rule, there’s a rule that states that a criminal defense lawyer “may nevertheless so defend the proceeding as to require that every element of the case be established.”  Generally, what does the rule prohibit?

  • A.  Representing a client at a trial in which the lawyer will be a necessary witness.
  • B.  Frivolous claims and contentions.  Rule 3.1 – Meritorious Claims and Contentions
  • C.  Conflicts of Interest.
  • D.  False statements of material fact to a tribunal.

 Question 5

 William Saxbe was born on June 24, 1916. He was a lawyer who served as Ohio’s Attorney General, a United States Senator, and United States Attorney General.

In 1966, while serving as Ohio Attorney General, Saxbe argued before the United States Supreme Court.  The case involved Sam Sheppard, a doctor who had been convicted of murdering his wife.  The US Supreme Court reversed the conviction, citing, among other things, a “carnival atmosphere” that had permeated the trial and the trial judge’s bias against the defendant.  In a retrial, Dr. Sheppard was acquitted.

In the U.S. Supreme Court and at the retrial, Dr. Sheppard was represented by a well-known lawyer who has since been disbarred.  During the retrial, the lawyer argued that the prosecution’s case was “ten pounds of hogwash in a 5-pound bag.”

The case inspired a novel and a hit movie starring Harrison Ford and Tommy Lee Jones.

Name the movie and the now disbarred lawyer who represented Dr. Sheppard.

The Fugitive & F. Lee Bailey

Five for Friday #258

Welcome to Friday and the 258th legal ethics quiz.

A few years ago, I used the intro to a June quiz to urge readers to take advantage of summer sooner rather than later. Too often, it seems that I don’t get my summer started until waking up on Bennington Battle Day only to realize that Labor Day is just around the corner. This week, a few thoughts combined to remind me of that post.  As the thoughts have marinated, they’ve caused me to wonder if summer, or at least a northern summer, is but a metaphor for life.  Hopefully, I can explain.

Earlier this week, my mom shared a story of having recently called a childhood friend.  The friend lives in a care home now, her memory not what it once was.  She’s happy, and remembered my mom, but she also thought that it was August.  Watching and listening, I sensed that my mom was torn — glad to have talked with her friend, but sad that the person she spoke with was no longer the same person as the person my mom had been friends with all these years.

Oddly, the next day, I read an essay by a person whose college friend recently passed while in his mid-30s. The author described how the two didn’t see each other much after graduation, but always vowed to “stay in touch.”  They did, if only getting together once a year.  The author expressed joy and gratitude at having stayed in touch, because even though the logistics were difficult at times, the memories made by finding and making time to get together are now the only thing he has to remember his friend.  Unstated, but stated well, was the point that while we frequently tell old friends “Let’s stay in touch,” we don’t.

Which brings me to Dave Laberge.

I met Dave in 2nd grade.  We’ve been best friends ever since. Dave’s that friend with whom I experienced so many “firsts.”  Communion, bike ride to the quarry, varsity game, night in a bar with (and without) a legal ID.  I’m sure there are many others.  I could go on & on about Dave and our adventures, like I did for too long during my best man speech a few years ago, but I won’t.  Those adventures aren’t the point.

The point is that this week, I realized that I haven’t seen or heard from Dave in a few years.  He lives in the Kingdom, where he and his brother own & operate Will-O-Wood Campground. I used to go up at least once a year, and Dave would always text or call when he was in town to visit family.  I’m not sure how we let that stop.  Thinking about it, I resolved that this summer will include a trek to the campground.

And that gets me back to my idea that, perhaps, summer is a metaphor for life.

Like the summers at Will-O-Wood, life is short.  Soon enough, our longest friends won’t be in our lives anymore — whether a bit too far away to visit, in a home not really knowing who we are, or gone.  Our relationships with those friends will become memories, like summer does once Labor Day passes.

So, maybe in addition to making sure to get out and do “things” this summer, another idea might be to seek out that old friend with whom you assumed you’d always be in touch but aren’t.  Because no matter your season in life, there’s still time to make summer memories.

Oh, and by the way, it’s June 24th.  Which means happy birthday to my old friend Dave Laberge!

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 consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

According to the Rules of Professional, which of the 7 Cs of Legal Ethics is implicated when a lawyer provides “financial assistance to a client in connection with pending or contemplated litigation?”

Question 2

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

“Be wary of disclosing too much. I think it’s best to cite to the specific provision of the rule that either requires it or allows it. Then, if the court asks for additional detail, provide it. I’ll send you a case from Tennessee in which a lawyer was publicly reprimanded for disclosing too much information in a motion, even though the trial court granted the motion.”

What did Attorney call to discuss?  Filing ______

  • A.  a motion to withdraw.
  • B.  an ex parte motion.
  • C.  a motion to disqualify the judge.
  • D. motion to disqualify opposing counsel.

Question 3

There’s a rule that governs “pooled interest-bearing trust accounts.”  Nobody I know calls such accounts by their formal name.  Anyhow, what is a pooled interest-bearing trust account?

  • A.  unethical and prohibited by the rule.
  • B.  an account that’s better known as an “operating account.”
  • C.  an account that generates interest that a lawyer must remit to the client.
  • D.  an account that generates interest that a lawyer must remit to the Vermont Bar Foundation.

Question 4

 In honor of the presentation I’m giving later today at the Defender General’s Annual Training.

While I don’t plan to address this rule, there’s a rule that states that a criminal defense lawyer “may nevertheless so defend the proceeding as to require that every element of the case be established.”  Generally, what does the rule prohibit?

  • A.  Representing a client at a trial in which the lawyer will be a necessary witness.
  • B.  Frivolous claims and contentions.
  • C.  Conflicts of Interest.
  • D.  False statements of material fact to a tribunal.

 Question 5

 William Saxbe was born on June 24, 1916. He was a lawyer who served as Ohio’s Attorney General, a United States Senator, and United States Attorney General.

In 1966, while serving as Ohio Attorney General, Saxbe argued before the United States Supreme Court.  The case involved Sam Sheppard, a doctor who had been convicted of murdering his wife.  The US Supreme Court remanded for a new trial, citing, among other things, a “carnival atmosphere” that had permeated the first trial and the trial judge’s bias against the defendant.

In the U.S. Supreme Court and at the retrial, Dr. Sheppard was represented by a well-known lawyer.  During the retrial, the lawyer argued that the prosecution’s case was “ten pounds of hogwash in a 5-pound bag.”  The jury apparently agreed: Dr. Sheppard was acquitted.  Later, in 2001, the lawyer was disbarred in Florida and, in 2014, denied admission to Maine’s bar.

The case inspired a novel and a hit movie starring Harrison Ford and Tommy Lee Jones.

Name the movie and the now disbarred lawyer who represented Dr. Sheppard.