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.

Monday Morning Honors #257

Ignore the timestamp!  It’s morning o’clock somewhere!

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

legal ethics

Honor Roll

 Answers

Question 1

When I’m presenting on the 7 Cs of Legal Ethics, which C am I discussing when I make this statement?

  • “Generally, the duty is more relaxed when negotiating with opposing counsel than it is when making statements of material fact or law to a tribunal.”

CANDOR.  Compare Rule 4.1 – Truthfulness in Statements to Others and  Rule 3.3 – Candor Toward the Tribunal

Question 2

Fill in the blank. I understand that, arguably, each is correct.  However, I’m looking for the exact word used in the rule.

Lawyer called me with an inquiry. I listened, then replied “the rule only prohibits you from representing the client at trial if you are a(n) __________ witness.

Question 3

 Each of these four phrases in the same rule.  However, the rule treats one differently than the other three.  Which phrase does the rule treat differently?

  • A.  The representation will result in violation of the rules of professional conduct.
  • B. The lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.
  • C. The lawyer is discharged.
  • D.  The representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client.

 In situations A-C, withdrawal is mandatory. In situation D, withdrawal is permissive.  See, Rule 1.16 – Declining or Terminating Representation

Question 4

At several seminars this month, I’ve resolved to review Vermont’s rule on “lateral transfers.”  In my opinion, the rule unnecessarily inhibits mobility and disproportionately impacts our newer lawyers.  What’s the rule on lateral transfers relate to?

Question 5

On June 17, 1994, a lawyer who would eventually go on to become one of the founders of Legal Zoom held a press conference.  The lawyer opened the press conference with a statement intended for the lawyer’s client, saying to the client:

  • “Wherever you are, for the sake of your family, for the sake of your children, please surrender immediately.”

Then, the lawyer recounted the events of a day that had begun with the lawyer intending to facilitate the client’s surrender to law enforcement, only to have the client and a friend disappear while the lawyer, the client, and others were waiting for police to arrive.

Finally, the lawyer asked another lawyer, who was also a close friend of the client, to read a letter from the client.  Many perceived it to be a suicide letter. In the end, it was not.  While you might not remember the lawyer who read the letter, you’re most certainly aware of many of the members of the lawyer’s family.  In the 21st century, you can’t help but not to be aware of them. 

In 2016’s Emmy Award winning series about the client’s case and eventual trial, the lawyer who began the press conference, the lawyer who read the note, and the client were played by John Travolta, David Schwimmer, and Cuba Gooding, Jr.

Name the lawyers and the client.

Robert Shapiro opened the press conference.

Robert Kardashian read the letter.

O.J. Simpson was the client.

A video of the press conference is here.

Breaking News Alert!! In fact there IS a legal ethics quiz this week!

Welcome (very belatedly) to Friday and the 257th legal ethics quiz!

With CLE season in full-swing, I’ve not blogged much lately and wasn’t going to post a quiz today.  Further, I don’t believe I’ve ever published a quiz that, like today’s, is the week’s only post. Rather, the Friday quizzes have served as a sort of dessert that follows the week’s meal of substantive posts on legal ethics and professional responsibility.

Then, a few minutes ago, I was struck by this thought: “Mike, what would we have written about in this week’s intro had we posted a quiz?”  I replied: “Self, great minds truly think alike! I was just asking us the same thing!”  So, we fired up the Google Machine to research “257” and “June 17.”

Aside: candidly, I was hoping that my high school graduation had fallen on June 17.  If it had, I would’ve posted this picture from my senior year:

IMG_2557

Alas, no such luck. Either with the date or with maintaining that flow as I aged!

However, and much more seriously, June 17 is an important day in legal ethics.  50 years ago today, “The Plumbers” broke into the Democratic National Committee’s headquarters at the Watergate complex.  The rest is history.

What’s that got to do with legal ethics?   Excellent question!  Here’s the answer.

In 2014, the ABA Journal published Watergate’s lasting legacy is to legal ethics reform, says John Dean.”  As the post notes, the role that lawyers played in the scandal resulted in:

  • the ABA directing law schools seeking accreditation to require that students take a class in legal ethics before graduating;
  • states requiring applicants for admission to the bar to pass the MPRE; and,
  • states mandating continuing legal education in ethics and professional responsibility.

The impact went further.

In 2012, the ABA Journal posted The Lawyers of Watergate: How a “3rd-Rate” Burglary Provoked New Standards for Lawyer EthicsThe article outlines how Watergate eventually resulted in the ABA’s 1983 vote to replace the Model Code of Professional Responsibility with the Model Rules of Professional Conduct.  The Vermont Rules of Professional Conduct are based on the ABA Model Rules.

The 2012 post also briefly delves into the history of Rule 1.13.  The rule governs the conduct of lawyers who represent or are employed by organizations, including government organizations.  Post-Watergate, the famed Kutak Commission recommended “that lawyers representing an organization be allowed to disclose confidential information concerning officers or employees who are violating the law.”

I could go on and on about Watergate and the resulting impact on legal ethics and professional responsibility.  But who wants that on a Friday afternoon?  Nobody, that’s who.

So, I’ll leave you with two things.

First, to learn more about the legal ethics fallout from Watergate, fire up your own Google Machine.

Second, given Watergate’s direct impact on the narrow area of law that I practice, I’d violate my duties of competence and diligence by NOT posting today.

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

Question 1

 When I’m presenting on the 7 Cs of Legal Ethics, which C am I discussing when I make this statement?

  • “Generally, the duty is more relaxed when negotiating with opposing counsel than it is when making statements of material fact or law to a tribunal.”

 Question 2

Fill in the blank. I understand that, arguably, each is correct.  However, I’m looking for the exact word used in the rule.

Lawyer called me with an inquiry. I listened, then replied “the rule only prohibits you from representing the client at trial if you are a(n) __________ witness.

  • A.  Fact.
  • B.  Expert.
  • C.  Necessary.
  • D.  Adverse

Question 3

Each of these four phrases in the same rule.  However, the rule treats one differently than the other tree.  Which phrase does the rule treat differently?

  • A.  The representation will result in violation of the rules of professional conduct.
  • B.  The lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.
  • C.  The lawyer is discharged.
  • D.  The representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client.

Question 4

 At several seminars this month, I’ve resolved to review Vermont’s rule on “lateral transfers.”  In my opinion, the rule unnecessarily inhibits mobility and disproportionately impacts our newer lawyers.  What’s the rule on lateral transfers relate to?

  • A.  Trust account management.
  • B.  Conflicts that arise from someone a lawyer knew/worked with before becoming a lawyer.
  • C.  Conflicts that arise when a lawyer moves from one private firm to another.
  • D.  Conflicts that arise when someone other than the client pays for a lawyer to represent the client.

Question 5

On June 17, 1994, a lawyer who would later become one of the founders of Legal Zoom held a press conference.  The lawyer opened the press conference with a statement intended for the lawyer’s client, saying to the client:

  • “Wherever you are, for the sake of your family, for the sake of your children, please surrender immediately.”

Then, the lawyer recounted the events of a day that had begun with the lawyer intending to facilitate the client’s surrender to law enforcement, only to have the client and a friend disappear while the lawyer, the client, and others were waiting for police to arrive.

Finally, the lawyer asked another lawyer, who was also a close friend of the client, to read a letter from the client.  Many perceived it to be a suicide letter. In the end, it was not.  While you might not remember the lawyer who read the letter, you’re most certainly aware of many of the members of the lawyer’s family.  In the 21st century, you can’t help but not to be aware of them.

In 2016’s Emmy Award winning series about the client’s case and eventual trial, the lawyer who began the press conference, the lawyer who read the note, and the client were played by John Travolta, David Schwimmer, and Cuba Gooding, Jr.

Name the lawyers and the client.

Monday Morning Honors #256

Happy Monday!

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

Honor Roll

Answers

Question 1

One of my 7 Cs of Legal Ethics, identify the duty that is defined as requiring “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

Rule 1.1 – Competence

Question 2

Fill in the blanks.  The same word goes in each. The answer is not “legal.”

There’s a rule that requires a lawyer to “render _________ advice.”  A comment to the rule states that “a client is entitled to straightforward advice expressing the lawyer’s honest assessment” and that “a lawyer should not be deterred from giving ______ advice by the prospect that the advice will be unpalatable to the client.”

CANDID – Rule 2.1 – Advisor and my post A Lawyer’s Professional Obligation to Provide Candid Legal Advice.

Question 3

There’s a rule that prohibits a lawyer from knowingly making a false statement of material fact or law to a third person while representing a client.  Does a lawyer violate the rule by knowingly misstating a client’s “bottom line” in settlement negotiations with opposing counsel?

  • A.  Yes.
  • B.  Yes, but there’s an exception for lawyers who represent criminal defendants in plea negotiations.
  • C.  No, because a comment to the rule states that, under conventional negotiation standards, certain statements are not to be taken as statements of material fact. Statements as to a client’s willingness to settle fall in this category. Rule 4.2 – Communication with Person Represented by Counsel, Cmt. [2]
  • D.  I sure as hell hope not.

Question 4

Lawyer called me with an inquiry. I listened*, then replied “the critical question seems to be whether it’s reasonable for you to believe that you will be able to provide competent representation to each affected client.”  At that exact moment, what were Lawyer and I discussing?

  • A.  Whether Lawyer has a conflict.
  • B.  Whether the conflict is waivable under Vermont’s rules.

Rule 1.7 – Conflict of Interest – Current Clients  applies.  My comment reflects the language in Rule 1.7(b)(1), which is part of the analysis whether a conflict can be waived.  Rule 1.7(a) addresses whether a conflict exists and does not mention a lawyer’s reasonable belief that the lawyer can provide competent representation to each affected client.

*The First Brother eagerly awaits the quiz in which “Lawyer called me with an inquiry and I didn’t listen.” Sorry Bro. Not this week.

Question 5

 6 years ago today, a person widely regarded as one of the greatest athletes and most influential people of the 20th century died of complications from Parkinson’s disease.

Arguably the most competent ever to compete in his sport, the athlete missed a chunk of the prime of his career due to a legal battle. After claiming conscientious objector status during the Vietnam War due to his religious beliefs, the athlete was charged and convicted of refusing to submit to induction to the Armed Forces.  The athlete appealed the conviction all the way to the United Supreme Court, a fight in which he eventually won one of his greatest’s victories when the Court overturned the conviction.

Years later, Bob Woodward and Scott Armstrong published The Brethren: Inside the Supreme Court. The book provides a behind-the-scenes look at the Court between 1969 and 1975. It includes a claim that the Court originally voted to uphold the athlete’s conviction, only to have the vote shift once the justice assigned to write the opinion changed his mind after further research into the tenets of the athlete’s religion.

If a lawyer were to use the athlete’s nickname to describe themselves in an ad, they’d probably violate the lawyer advertising rules. That would sting.

Who is the athlete?  Muhammad Ali

Bonus: by what name does the caption of the Supreme Court opinion refer to the athlete.  Cassius Clay.

The opinion is here.  Opinions sure used to be a lot shorter back in the day.

Trump Might Pardon Muhammad Ali. What Did Ali Do? | Time

Five for Friday #256

Welcome to Friday and the 256th legal ethics quiz!

Zenzizenzizenzic.

That is not a typo or misspelling.  It’s an actual word that, thanks to this intro, might someday propel you to trivia glory.

But first, the inaugural Vermont Film & Music Festival begins tonight in Stowe.  If you go, don’t forget to say hi to David Rocchio. As I blogged Wednesday, Rocchio made the move from the law to the movies and is one of the creative minds behind the festival.

Now, let’s get back to zenzizenzizenzic.

As most know, on Fridays, I try to tie the intro to the quiz number.  Often this results in me researching the number.  In so doing, it never ceases to amaze me how many complicated words & definitions are used to describe numbers and things associated therewith.  For all the grief directed at the law for our vocabulary being tough to comprehend, mathematicians seem to have gotten a free pass.

For example, my birthday is on July 18th, and, after last night’s win, the Celtics are one game closer to their 18th NBA championship.  18 is a composite number, a semi-perfect number, an inverted square-prime, an abundant number, a solitary number, a Fine number, the number of one-sided pentominoes, and, in base 10, a Harshad number.

I have no idea what any of that means, but it’s a lot of words.  Still, compared to other numbers I’ve researched, 18 has relatively few confusing descriptors associated with it.

Which brings me, finally, to zenzizenzizenzic.

By far the most eye-catching word ever to leap off Wikipedia during my numerical research, zenzizenzizenzic is used to describe any number that is the 8th power of another number.  That is, x8 is always a zenzizenzizenzic number.  You can learn more about the word origin here.

When I read the origin, my initial reaction was that that they’d yet to invent superscript. I believe that’s incorrect.  Rather, when describing xx, they only had words for x2 and x3, “squared” and “cubed.”  They didn’t have words for x to any other power. So, for x4, someone decided to use “squared squared.”  This led to using “squared squared squared” to refer to a number to its 8th power.  At the time, the Latin word for “squared” was “censo.” In English, it was “zenzic.”  Hence, zenzizenzizenzic.

Brief aside: nor does it cease to amaze me what math scholars were able to figure out thousands of years ago.  Sheer brilliance.  But to think that it took so long to invent words for powers beyond x3?  Kind of takes a bit of the shine off their other accomplishments.  Also, it’s now clear to me that we banned mathematicians from helping to draft the Constitution. Otherwise it’d include a “jeopardy jeopardy” clause.

Anyhow, two final points.

First, of all the words in the Oxford English Dictionary, none has more z’s than zenzizenzizenzic.  I expect a toast in my honor should you ever parlay this tidbit to trivia glory.

Second, there is only one 3-digit zenzizenzizenzic number.  I’m sure many of you have probably guessed it by now.   28?

256.

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

 One of my 7 Cs of Legal Ethics, identify the duty that is defined as requiring “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

Question 2

Fill in the blanks.  The same word goes in each. The answer is not “legal.”

There’s a rule that requires a lawyer to “render _________ advice.”  A comment to the rule states that “a client is entitled to straightforward advice expressing the lawyer’s honest assessment” and that “a lawyer should not be deterred from giving ______ advice by the prospect that the advice will be unpalatable to the client.”

Question 3

There’s a rule that prohibits a lawyer from knowingly making a false statement of material fact or law to a third person while representing a client.  Does a lawyer violate the rule by knowingly misstating a client’s “bottom line” in settlement negotiations with opposing counsel?

  • A.  Yes.
  • B.  Yes, but there’s an exception for lawyers who represent criminal defendants in plea negotiations.
  • C.  No.  A comment to the rule states that, under conventional negotiation standards, certain statements are not to be taken as statements of material fact and that statements as to a client’s willingness to settle fall in this category.
  • D.  I sure as hell hope not.

Question 4

Lawyer called me with an inquiry. I listened*, then replied “the critical question seems to be whether it’s reasonable for you to believe that you will be able to provide competent representation to each affected client.”  At that exact moment, what were Lawyer and I discussing?

  • A.  Whether Lawyer has a conflict.
  • B.  Whether Lawyer’s conflict is waivable under Vermont’s rules.

*The First Brother eagerly awaits the quiz in which “Lawyer called me with an inquiry and I didn’t listen.”

Sorry Bro. Not this week.

Question 5

 6 years ago today, a person widely regarded as one of the greatest athletes and most influential people of the 20th century died of complications from Parkinson’s disease.

Arguably the most competent ever to compete in his sport, the athlete missed a chunk of the prime of his career due to a legal battle. After claiming conscientious objector status during the Vietnam War due to his religious beliefs, the athlete was charged and convicted of refusing to submit to induction to the Armed Forces.  The athlete appealed the conviction all the way to the United Supreme Court, a fight in which he eventually won one of his greatest’s victories when the Court overturned the conviction.

Years later, Bob Woodward and Scott Armstrong published The Brethren: Inside the Supreme Court. The book provides a behind-the-scenes look at the Court between 1969 and 1975. It includes a claim that the Court originally voted to uphold the athlete’s conviction, only to have the vote shift once the justice assigned to write the opinion changed his mind after further research into the tenets of the athlete’s religion.

If a lawyer were to use the athlete’s nickname to describe themselves in an ad, they’d probably be found in violation of the lawyer advertising rules. That would sting.

Who is the athlete?

Bonus: by what name does the caption of the Supreme Court opinion refer to the athlete?

Monday Morning Honors #255

Happy Memorial Day!

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

Honor Roll

Answers

Question 1

A comment to a rule states that “information acquired in a prior representation may have been rendered obsolete by the passage of time, a circumstance that may be relevant in determining whether two matters are substantially related.”

Which two of the 7 Cs of Legal Ethics does the rule address?

This Rule 1.9 – Duties to Former Clients.  It addresses both Conflicts and Confidences.

 Question 2

 There is a rule that prohibits lawyers from charging or collecting an unreasonable fee.  Which is most accurate? The rule ___________________:

  • A.  also prohibits a lawyer from agreeing to an unreasonable fee. Rule 1.5 – Fees
  • B. includes an exception that allows a lawyer to charge a fee that is otherwise unreasonable if the client agrees.
  • C. includes an exception that allows a lawyer to charge a fee that is otherwise unreasonable if the client agrees, if the client was afforded a reasonable amount of time to seek independent legal advice about the fee before agreeing to it.
  • D. includes an exception that allows a lawyer to charge a fee that is otherwise unreasonable if the client agrees, if the fee agreement is confirmed in a writing that is signed by the client.

 

Question 3

By rule, a “prospective client” is one who, in good faith, discussed with a lawyer the possibility of retaining the lawyer but, for whatever reason, did not retain the lawyer.  Which is most accurate?

Per the rule, the lawyer shall not represent a client:

  •  A.  with interests materially adverse to the prospective client.
  •  B.  with interests materially adverse to the prospective client in the same or a substantially related matter.
  • C.  with interests materially adverse to the prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to the prospective client. Rule 1.18 – Duties to Prospective Client
  • D  None of the above.  This is a trick question.  Vermont has not adopted the ABA Model Rule that applies to “prospective clients.”

 Question 4

 Lawyer called me with an inquiry. I listened, then replied “one of the exceptions to the general prohibition against disclosure applies.  However, you should limit your response to disclosing only the information that is reasonably necessary to establish a defense or to respond to the allegations.”

Given my response, it’s most likely that the allegations have been made against __________:

  • A.  A current client of Lawyer.
  • B.  A former client of Lawyer.
  • C.  A or B.
  • D.  Lawyer. Here, I was referring to Rule 1.6 – Confidentiality of Information.  Paragraph(c)(3) includes the so-called “self-defense” exception.  Last week, I referenced the rule & exception in this post about the Illinois judge who ordered Drew Peterson’s former lawyer not to disclose information relating to the disappearance of Peterson’s missing wife.

Question 5

Yesterday, testimony finally ended in a defamation trial that has lasted 6 weeks and garnered significant media attention. The trial included disturbing and troubling evidence of physical and emotional abuse. It also included something that is quite rare in trials: while examining a witness, a lawyer objected to his own question.

Name either of the parties to the defamation case.

The parties are Johnny Depp and Amber Heard.  Here’s the moment when the lawyer objected to his own question.  To be fair, media ran with this.  As LegalEagle explains here, the lawyer was more trying to strike the answer more than to object to his own question.

Heard and Depp

Five for Friday #255

Welcome to Friday and the 255th legal ethics quiz.

Readers are in luck.  I’m at a loss for words and behind schedule.  Therefore, no intro today.

Instead, I’ll leave you with this post from Memorial Day weekend in 2018.  In it, I marked the occasion of the Vermont City Marathon by using concepts and phrases associated with legal ethics & professional responsibility to interview several lawyers and judges who run marathons.

Enjoy the long weekend and good luck to readers who are running in the Vermont City Marathon!

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

A comment to a rule states that “information acquired in a prior representation may have been rendered obsolete by the passage of time, a circumstance that may be relevant in determining whether two matters are substantially related.”

Which two of the 7 Cs of Legal Ethics does the rule address?

 Question 2

 There is a rule that prohibits lawyers from charging or collecting an unreasonable fee.  Which is most accurate? The rule ___________________:

  • A.  also prohibits a lawyer from agreeing to an unreasonable fee.
  • B.  includes an exception that allows a lawyer to charge a fee that is otherwise unreasonable if the client agrees to the fee.
  • C.  includes an exception that allows a lawyer to charge a fee that is otherwise unreasonable if the client agrees, but only if the client was afforded a reasonable amount of time to seek independent legal advice about the fee before agreeing to it.
  • D.  includes an exception that allows a lawyer to charge a fee that is otherwise unreasonable if the client agrees, but only if the client was afforded a reasonable amount of time to seek independent legal advice about the fee before agreeing to it and the fee agreement is confirmed in a writing that is signed by the client.

 Question 3

By rule, a “prospective client” is one who, in good faith, discussed with a lawyer the possibility of retaining the lawyer but, for whatever reason, did not retain the lawyer.  Which is most accurate?

Per the rule, the lawyer shall not represent a client:

  •  A.  with interests materially adverse to the prospective client.
  •  B.  with interests materially adverse to the prospective client in the same or a substantially related matter.
  • C.  with interests materially adverse to the prospective client, in the same or a substantially related matter, if the lawyer received information from the prospective client that could be significantly harmful to the prospective client.
  • D.  None of the above.  This is a trick question.  Vermont has not adopted the ABA Model Rule that applies to “prospective clients.”

 Question 4

Lawyer called me with an inquiry. I listened, then replied “one of the exceptions to the general prohibition against disclosure applies.  However, you should limit your response to disclosing only the information that is reasonably necessary to establish a defense or to respond to the allegations.”

Given my response, it’s most likely that the allegations have been made against __________:

  • A.  a current client of Lawyer.
  • B.  a former client of Lawyer.
  • C.  A or B, the rule doesn’t distinguish between them.
  • D. Lawyer.

 Question 5

Yesterday, testimony finally ended in a defamation trial that has lasted 6 weeks and garnered significant media attention. The trial included disturbing and troubling evidence of physical and emotional abuse. It also included something that is quite rare in trials: while examining a witness, a lawyer objected to his own question.

Name either of the parties to the defamation case.

A quick recap of the 7 Cs of Legal Ethics

Welcome to Friday!

I’m taking a week off from the quiz. Still, I don’t want to leave anyone without their weekly refresher in legal ethics & professional responsibility!  So, motivated by last night’s huge win by the Cs, I’m sharing a video in which I provide a brief (9:39) overview of the 7 Cs of Legal Ethics.

  • Competence
  • Communication
  • Confidentiality
  • Conflicts
  • Candor
  • Commingling
  • Civility

Enjoy the weekend!