Five for Friday #155

From the shores of Lake Morey, welcome to the first #fiveforfriday of spring!

It’s definitely in the air:

IMG_2493

Somewhere.

The Vermont Bar Association’s 62nd Mid-Year Meeting opened last night.  The evening’s seminar focused on wellness and the State Action Plan.  A fantastic dialogue ensued.

Many members of an engaged audience shared personal experiences with the various aspects of the profession that trigger anxiety and stress.  One was raised more often than I expected:  civility.

Several folks mentioned that dealing with antagonistic and rude opposing attorneys is a significant source of stress.  Simply, we don’t always treat each other very well.

What can we do about it?

I get it: in an adversarial  system that includes duties of loyalty and diligence to clients who are shouldering serious problems, it can be difficult.  But it’s not impossible.  And sometimes the little things can make the all difference.

Last night, a lawyer shared a story. He recently went to a mediation with a client.  The opposing lawyer was one he’d known for decades, but hadn’t caught up with in a long time.  The mediation was stressful, and the lawyer continued to feel the effects of the stress that evening.

Then an email popped in.  It was from the opposing lawyer and said (and I paraphrase) “Hey, it was good to see you today. Hope you’ve been well.”

The lawyer who shared the story talked about how much it meant to receive the e-mail and how it relieved a good deal of the stress of the day.  He concluded by saying “it mattered to me.”

Which reminds me:

“One day, an old man was walking along a beach that was littered with thousands of starfish that had been washed ashore by the high tide. As he walked he came upon a young boy who was eagerly throwing the starfish back into the ocean, one by one.

Puzzled, the man looked at the boy and asked what he was doing. Without looking up from his task, the boy simply replied, “I’m saving these starfish, Sir”.

The old man chuckled aloud, “Son, there are thousands of starfish and only one of you. What difference can you make?”

The boy picked up a starfish, gently tossed it into the water and turning to the man, said,

“I made a difference to that one!”

A while back, I posted Don’t Be a JerkAs should be obvious, it’s a post in which I argue that we can do our jobs without being jerks to each other.  Indeed, nothing in the rules is incompatible with civility.  As a comment to Rule 1.3 says:

  •  “[t]he lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved with courtesy and respect.”

Courtesy and respect.  We need more of each in the air.

Make a difference to someone today.  It matters.

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

If the client gives informed consent, or, if doing so is impliedly necessary to carry out the representation, a lawyer does not violate the rules by:

  • A. disclosing information related to the representation
  • B.  charging an unreasonable fee
  • C.  A & B
  • D.  None of the above

Question 2

When a lawyer opens a pooled interest-bearing trust account, the rules requires the lawyer to notify the bank that:

  • A.  Interest must be paid to the Vermont Bar Foundation.
  • B.  ACH transactions are prohibited on such accounts.
  • C.  the lawyer cannot deposit her own funds in the account, even to cover bank charges
  • D.  All of the above

Question 3

Attorney represents an organization in a matter.

Opposing Counsel knows that Attorney represent the organization in the matter.

Without Attorney’s permission, Opposing Counsel discusses the matter with a former employee of the organization.

Which is most accurate with respect to the Rules of Professional Conduct?

  • A.  Opposing Counsel violated the rules.
  • B.  Opposing Counsel did not violate the rules.
  • C.  Attorney violated the rules.

Question 4

Lawyer called me with an inquiry.  My response included telling Lawyer that the rule suggests that she must take “reasonable remedial measures.”  Most likely, Lawyer called to discuss the rule on:

  • A.  Competence
  • B.  Trust accounting
  • C.   Unauthorized Practice of Law
  • D.  Candor to a Tribunal

Question 5

There’s a lawyer who has been in the news an awful lot the past few years.  Last month, he was forced to give up control over his own law firm after being accused of bankruptcy fraud.

Specifically, he is alleged to have used various & nefarious accounting maneuvers to hide over $10 million in legal fees to keep from having to pay them to his firm’s creditors.

Name the lawyer.

 

Don’t Threat On Me

I am not a fan of lawyers who threaten other lawyers with disciplinary complaints.

Actually, I take that back.  It’s their threats, not the lawyers who make them, that I don’t like.

Image result for hate the game not the player gif

Last week, an appeals court in Texas upheld a lower court’s order imposing a 4-month probated suspension on a lawyer who threatened another with a disciplinary complaint solely to gain an advantage in a civil matter.  Law360 (sub. req.) reported the story.  The opinion is here.

Background: on behalf of a company he owned, Lawyer sued an insurance company for refusing to pay a claim after a fire. An issue at trial was why Lawyer had waited so long to report the claim.  He argued that he’d delayed reporting on the advice of counsel. So, the insurance company sought testimony and discovery from Lawyer’s counsel, prompting Lawyer to assert the attorney-client privilege. Attorneys for the insurance company made several arguments that Lawyer had waived the privilege, including the crime-fraud exception.

At Lawyer’s request, the court held an evidentiary hearing on the crime-fraud exception.  The court found that it applied.  The trial of the coverage claim resumed.

When it did, Lawyer threatened one of the insurance company’s attorneys with a disciplinary complaint.  Specifically, on a Friday, and referring to the attorney’s allegation that Lawyer had engaged in a crime or fraud, Lawyer sent an e-mail in which he threatened a disciplinary complaint:

  • “unless, by noon on Monday, you announce in open court that you now realize that there was no factual basis for your allegations, and that you are sorry for having made them and that you now withdraw them ENTIRELY.”

Lawyer continued:

  • “If you do make the above statement – the language of which will have to be agreed upon – I will release you and [your firm] from all potential liability in connection with the statement you made and will agree not to file a grievance against you or [your firm] with the state bar or related authorities.”

Lawyer concluded:

  • “Think about it carefully.  Choose wisely.”

Now, Vermont doesn’t have a rule that specifically prohibits threatening a disciplinary complaint to gain an advantage in a civil matter.  Rather, we have Rule 4.5, which prohibits presenting, or threatening to present, criminal charges to gain an advantage in a civil matter.

Texas, however, has a rule that specifically applies.  It’s Texas Disciplinary Rule 4.04(b)(1):

  • (b) A lawyer shall not present, participate in presenting, or threaten to present (1) criminal or disciplinary charges solely to gain an advantage in a civil matter.

Lawyer argued that he made the threat to clear his name and, therefore, it was not made “solely” to gain an advantage in the civil trial.  He also argued that “gain an advantage” means a quid pro quo in which he’d have received something in return for not filing the complaint.

The court rejected each argument. With respect to the latter, the court noted that Lawyer gained the advantage of distracting the opposing attorney from focusing on preparing and presenting his case.

Now, the fact that Vermont’s rules don’t specifically prohibit threatening another with a disciplinary complaint shouldn’t be taken as a sign that it’s a good idea.  As the Texas court concluded:

  • “Threatening to use the criminal or disciplinary process solely to coerce a party in a private matter improperly suggests that a lawyer can manipulate the criminal process for personal gains and manipulate the legal system for personal advantage.”

The court noted that the suggestion of such improper influence is an “abuse” of the system that lessens public confidence in the profession.

File and Let File.

Don’t threat on me.

 

 

 

 

 

 

 

Monday Morning Answers #155

I’m about to sanction myself for failing to detect a conflict.

Long ago, I agreed to speak at Thursday’s VBA Mid-Year Meeting.  The seminar falls on the same day that UVM plays an NCAA tournament game within driving distance.

Nice schedule-checking Mike.

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

Honor Roll

Answers

Question 1

True or False.

A lawyer cannot be disciplined for trying, but failing, to violate the Rules of Professional Conduct.  That is, discipline can only be imposed for an actual violation.

Aside: imagine being too incompetent to be incompetent?

FALSE.  Rule 8.4(a).

Question 2

Which does not belong with the others?

  • A.  the time & labor required, as well as the skills requisite to perform the legal services properly
  • B.   continued representation will result in a violation of the rules.
  • C.   the lawyer is discharged.
  • D.   the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.

Answer “A” is one of the factors to be considered when analyzing the reasonableness of a fee.  See, Rule 1.5.  The other 3 require withdrawal pursuant to Rule 1.16(a).

Question 3

Lawyer called me with an inquiry.  I listened, then said: “it depends, did you receive information that could be significantly harmful to that person?”

My words “that person” refers to:

A.  a prospective client who met with, but did not retain, Lawyer.  See, Rule 1.18
B.  a prospective juror.  
C.  an opposing party who mistakenly emailed Lawyer
D.  a current client who intends to commit a crime

Question 4

Generally, a lawyer “shall not acquire a proprietary interest” in the client’s cause of action or in the subject matter of the litigation that the lawyer is conducting for the client.  There are two exceptions.

Name 1.

This is Rule 1.8(i)

  1. A lien authorized by law to secure expenses or a fee; or,
  2. A contingent fee in a civil case.

Question 5

Rule 1.1 requies an attorney to provide clients with competent representation.

Although he did not prevail on his argument, one of the more competent self-represented litigants in movie history was an Irish kid from South Boston.   He represented himself at an arraignment on a charge that he had assaulted a police officer, even arguing his own motion to dismiss:

  • Character:  There is lengthy legal precedent, your honor, going back to 1789, whereby a defendant can claim self-defense against an agent of the government, if that act is deemed a defense against tyranny, a defense of liberty.
  • Prosecutor:  Your honor. . .
  • Character:  Henry Lloyd Beecher in Proverbs from the Plymouth Pulpit, 1887 says, and I quote . . .
  • Prosecutor:  1887? This is the 20th century, your honor.
  • Character:  Excuse me, excuse me.
  • Prosecutor:  You’re making a mockery of the Court!
  • Character:  I’m afforded the right to speak in my own defense, sir, by the Constitution of the United States.  This is the same document that guarantees my liberty.
  • Prosecutor:  Hey, don’t tell me about the Constitution of the United States.
  • Character:  Now, liberty, in case you’ve forgotten, is the soul’s rights to breath.  And when it cannot take a long breath, laws are girded too tight.  Without liberty, man is a syncope.
  • Prosecutor:  Man is a what?
  • Character:  Ibid,  your honor.
  • Judge:  Son, my turn. I’ve been sitting here 10 minutes now looking over this rap sheet of yours.   I just can’t believe it.  June ’93, Assault.  September ’93, Assault. Grand Theft Auto in February ’94, where you apparently defended yourself by citing Free Property Rights of Horse and Carriage from 1798.  January ’95, Impersonating an Officer, Mayhem, Resisting. All overturned.  I’m also aware that you’ve been through several foster homes.  The State removed you from three due to physical abuse.  You know, another judge might care, but you hit a cop.  You’re going in. Motion to dismiss is denied.  $50,000 bail.
  • Character:  Thank you your honor.

Soon after the arraignment, Character was released to the supervision of a co-worker, an MIT professor.  Character’s conditions of release required him to attend therapy sessions with the professor’s college roommate, a psychology teacher at a local community college.

Name the movie.

GOOD WILL HUNTING

See the source image

 

 

Five for Friday #154

Less is often more.  That’s one of the reasons that I’m a fan of Irish understatement.

If you’re not familiar with Irish understatement, here’s how we refer to 30 years of devastating violence that, depending on one’s point of view, was either a freedom fight or terrorism: “The Troubles.”  Enough said.

Anyhow, I don’t know the names of many of my favorite Irish thinkers.  Most are people with whom I shared space in dimly lit pubs, doing our best to keep conversation to a minimum before heading our separate ways.

One of my favorites, however, is someone who I never met: Oscar Wilde. To me, Wilde’s  insight, intelligence and wit make him the master of Irish understatement.  I won’t bore you with Wilde quotes.  But one strikes me as particularly relevant to topics oft discussed in this space:

  • “There are only two tragedies in life: one is not getting what one wants, and the other is getting it.”

I suppose we could debate Wilde’s meaning.  Some might interpret it as a “tragedy” to achieve everything, only to realize that’s there’s nothing left to do.  You know, reaching a metaphorical mountaintop only to ask “is this it?”  Fair interpretation, but not mine.

To me, the message is a question that we must ask on the way to getting everything we want: “at what cost?” And the message applies to (at least) two different aspects of professional responsibility.

First, civility is a professional responsibility.  As I’ve blogged, Don’t Be a Jerk.  

I’m not the only lawyer who spreads that message. Twice a year, the Vermont Bar Association puts on its Basic Skills seminar. It’s an opportunity for new lawyers to satisfy the CLE requirement associated with admission to the bar.  I join many other dedicated lawyers to present on different topics and practice areas.

Almost to a person, we include the same message: Vermont is a small state.  The lawyer who is on the other side is one with whom you will likely deal often throughout your career.  Be civil, or it could come back to haunt you.  Stated differently, sure, you got what you wanted in THAT case, but at what cost?  The reputational hit might not be “tragic,” but it ain’t great either.

The second area to which Wilde’s quote applies is attorney wellness. I will not spend paragraphs rehashing the dozens of posts in which I’ve addressed the staggering toll that the profession takes on us.  Suffice to ask, at what cost to your emotional, physical, and mental health are you willing to achieve career goals?  Look no further than here and here for numbers that reflect the tragedy.

Oops.

I can hear the pins dropping.

Leave it to an Irish basketball coach who pines for summer to go all melancholy on a weekend that includes (1) the first sunny, warm Friday in ages; (2) UVM basketball playing for a spot in the NCAA tournament; and (3) St. Patrick’s Day!

I want to end this post on a more uplifting note.  Thankfully, there’s plenty of Irish-related material to do just that.

For instance, Wilde also said “true friends stab you in the front.”  I think it’s funny to use that quote in a post that appears on the Ides of March.  Et tu, Brute?!?!

Even more uplifting, especially during Lent, let me leave you with a story that reminds me of my brother and our Irish-Catholic relatives & friends:

shamrock

Michael moved into a tiny hamlet in County Kerry, walked into the pub and promptly ordered 2 beers. The bartender raised his eyebrows, but served Michael two beers, which he drank quietly at a table, alone. The next evening Michael again ordered and drank two beers at a time. Soon the entire town was whispering about the Man Who Orders Two Beers.

Eventually, the bartender asked what the town wanted to know. “I don’t mean to be prying but folks around here are wondering why your always order 2 beers at a time?”

“Ah, it’s odd, I know,” Michael replied. “You see, I have a brother, Patrick, back in the US. We promised each other that we would always order an extra beer, whenever we would partake, as a way of keeping up the family bond.” The bartender and the whole town were pleased with Michael’s reverence for family. 

One day Michael came in and ordered only 1 beer. The bartender served it with a heavy heart. Word flew around the hamlet quickly. Prayers were offered for Patrick’s soul. The next day, after Michal again ordered only 1 beer, the bartender said “folks around here, me first of all, want to offer our condolences to you for the death of your brother”

Michael pondered for a moment then replied, “I appreciate it, but I’m happy to report that Patrick is alive and well. It’s just that I, myself, gave up drinking for Lent.”

Onto the quiz and GO CATS GO!

Rules

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception – but one that is loosely enforced – #5 isn’t open book.  (“loosely enforced” = “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

True or False.

A lawyer cannot be disciplined for trying, but failing, to violate the Rules of Professional Conduct.  That is, discipline can only be imposed for an actual violation.

Aside: imagine being too incompetent to be incompetent?

Question 2

Which does not belong with the others?

  • A.  the time & labor required, as well as the skills requisite to perform the legal services properly
  • B.   continued representation will result in a violation of the rules.
  • C.   the lawyer is discharged.
  • D.   the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.

Question 3

Lawyer called me with an inquiry.  I listened, then said: “it depends, did you receive information that could be significantly harmful to that person?”

My words “that person” refers to:

A.  a prospective client who met with, but did not retain, Lawyer.
B.  a prospective juror
C.  an opposing party who mistakenly emailed Lawyer
D.  a current client who intends to commit a crime

Question 4

Generally, a lawyer “shall not acquire a proprietary interest” in the client’s cause of action or in the subject matter of the litigation that the lawyer is conducting for the client.  There are two exceptions.

Name 1.

Question 5

Rule 1.1 requies an attorney to provide clients with competent representation.

Although he did not prevail on his argument, one of the more competent self-represented litigants in movie history was an Irish kid from South Boston.   He represented himself at an arraignment on a charge that he had assaulted a police officer, even arguing his own motion to dismiss:

  • Character:  There is lengthy legal precedent, your honor, going back to 1789, whereby a defendant can claim self-defense against an agent of the government, if that act is deemed a defense against tyranny, a defense of liberty.
  • Prosecutor:  Your honor. . .
  • Character:  Henry Lloyd Beecher in Proverbs from the Plymouth Pulpit, 1887 says, and I quote . . .
  • Prosecutor:  1887? This is the 20th century, your honor.
  • Character:  Excuse me, excuse me.
  • Prosecutor:  You’re making a mockery of the Court!
  • Character:  I’m afforded the right to speak in my own defense, sir, by the Constitution of the United States.  This is the same document that guarantees my liberty.
  • Prosecutor:  Hey, don’t tell me about the Constitution of the United States.
  • Character:  Now, liberty, in case you’ve forgotten, is the soul’s rights to breath.  And when it cannot take a long breath, laws are girded too tight.  Without liberty, man is a syncope.
  • Prosecutor:  Man is a what?
  • Character:  Ibid,  your honor.
  • Judge:  Son, my turn. I’ve been sitting here 10 minutes now looking over this rap sheet of yours.   I just can’t believe it.  June ’93, Assault.  September ’93, Assault. Grand Theft Auto in February ’94, where you apparently defended yourself by citing Free Property Rights of Horse and Carriage from 1798.  January ’95, Impersonating an Officer, Mayhem, Resisting. All overturned.  I’m also aware that you’ve been through several foster homes.  The State removed you from three due to physical abuse.  You know, another judge might care, but you hit a cop.  You’re going in. Motion to dismiss is denied.  $50,000 bail.
  • Character:  Thank you your honor.

Soon after the arraignment, Character was released to the supervision of a co-worker, an MIT professor.  Character’s conditions of release required him to attend therapy sessions with the professor’s college roommate, a psychology teacher at a local community college.

Name the movie.

 

 

 

That time you flattened a tenant’s tires and put glue in her locks. Wait . . . what?

Stop me if we’ve discussed this one before.

Issue: whether a lawyer acting in his capacity as a landlord commits professional misconduct by letting the air out of a tenant’s car’s tires and putting glue in the locks on the doors to the tenant’s apartment.

Wait What

In Michigan, the answer is “yes.”  Both MLive.com and the ABA Journal reported the story.

In Vermont, it’s rare that we receive complaints about something a lawyer has done outside the practice of law.  When it happens, we typically must review whether the lawyer violated one of two provisions of Rule 8.4:

  • Rule 8.4(b), which makes it professional misconduct to engage in “serious crimes;” or,
  • Rule 8.4(c), which makes it professional misconduct to engage in conduct that involves dishonesty, fraud, deceit or misrepresentation

Back to the Michigan case.

The lawyer was also a landlord.  Per MLive.com, the lawyer conceded to a hearing panel that, embroiled in a dispute with a tenant, he “flattened his tenant’s tires to discourage her from parking in front of his garage.”  The lawyer explained that his  intentions weren’t all bad, that he “did so rather than having her vehicle towed to save her money.” The tenant changes the locks to the apartment and did not give the lawyer/landlord a key.  He conceded, thus, that he filled the locks with glue.

I’ve not yet found the Michigan decision.  However, as reported by MLive.com:

  • “The three-member panel on Feb. 28 ruled Czuprynski engaged ‘in conduct that exposed the legal profession to obloquy, contempt, censure and reproach.’ Furthermore, the panel found Czuprynski’s conduct was ‘contrary to justice, ethics, honesty or good morals.’ ”

The panel is scheduled to reconvene to consider the sanction to be imposed.

To me, the case raises an interesting discussion.  There can be little dispute that it’s absolutely wrong for landlords to handle disputes with tenants like the Michigan lawyer did.  However, harkening back to my days as the disciplinary prosecutor, I wonder how I’d have approached the conduct in the context of an attorney discipline case.

In Vermont, Rule 7 of Administrative Order 9 states that discipline may be imposed for:

  1. violating the rules of professional conduct;
  2. conduct which results in lawyer or judicial discipline in another jurisdiction;
  3. in an attorney discipline proceeding, violating an order issued by a hearing panel, the PRB, or the Supreme Court; or,
  4. failing to provide disciplinary counsel, a hearing panel or the Court with information without a reasonable grounds for doing so.

In my view, only the first applies.  Thus, had a Vermont lawyer done exactly what the Michigan lawyer did while I was Vermont’s prosecutor, what rule would I have charged the lawyer with violating?

It’s not clear to me.

I’ve not researched whether it’s a “serious crime” to let the air out of someone’s tires or put glue in their locks.   So, I don’t know if Rule 8.4(b) would’ve given me a hook.  I doubt it.

My guess?  Rule 8.4(d).  The rule prohibits conduct that is prejudicial to the administration of justice.  I’d have argued that there is a process to resolve landlord-tenant disputes: civil court.  Justice is not administered by harassment and intimidation that impermissibly deprives a tenant of access to a dwelling and appears motivated by an attempt to force the tenant to vacate without having to file for eviction.

I don’t know how strong my argument would’ve been. And that makes me wonder whether a system that focuses on rules more than on the impact of an attorney’s conduct can lose the forest for the trees.

The Michigan disciplinary panel saw the forest.

Absent a specific rule to charge, I wonder if I’d have been able to convince a Vermont hearing panel to do the same.

 

 

 

 

 

 

 

Wellness Wednesday: Meet Molly Gray

It’s Wednesday, so you know what that means!

I like to use the Wellness Wednesday posts to introduce you to members of the legal profession who make sure to make time for non-legal, non-lawyerly things. As the VBA’s Jennifer Emens-Butler says, “pursuits of happiness.”  Links to my prior posts on lawyers and their non-lawyerly interests appear at the end of today’s blog.

Today, I’d like to introduce you to Molly Gray.

Molly Gray's Profile Photo, Image may contain: Molly Gray, smiling, standing

Molly is an assistant attorney general. She’s also a top-notch cross-country skier who grew up on a working farm. Molly was kind enough to agree to answer questions that are loosely related to her background, legal ethics, and attorney wellness.  All mistakes and typos are mine, not Molly’s.

MK:Thank you for doing this!  Like me, you grew up in Vermont. Unlike me, it wasn’t near the Burlington airport. Tell us a little about life as Molly Gray before you went to law school?

 MG: Thanks for reaching out!   Where to begin, I grew up on a farm. A real working vegetable, fruit and dairy farm in Newbury on the Connecticut River. I was born on the farm. Yes, in the farm house in the early 1980s. My parents retired from competitive ski racing and shifted all that competitive energy to farming. They have an indomitable love of labor, Vermont and being outside. The skiing, at least, was contagious. I attended Oxbow High School (that would be the Oxbow “Olympians”) and a ski academy in southern Vermont, the Stratton Mountain School. All the skiing and probably farming in those early years, led to a scholarship to ski for the University of Vermont. I am extremely fortunate. After four years of racing, a budding interest in government, law, and international relations drove me, like my parents, to zero in on something new; an eventual legal career. That being said, I was 22 and had never really left Vermont! Ultimately, I attended Vermont Law School, but there was quite the eye-opening journey in getting there several years later

 (MK Note:  in 2015, VTDigger featured Molly’s parents’ farm)

 

Molly & her parents

(Molly’s parents & her brother)

MK:  Very interesting!  So much information. But first things first.  I have roots in the Upper Valley.  My mom grew up in Bradford and was a Bradford Academy Admiral.  In my job, I often preach a lawyer’s duty of competence.  As a Newbury native, what is the only competent way to pronounce your home town?

MG:  You had mentioned the Upper Valley connection. You are aware then of the friendly rivalry between Bradford folks and the community in Newbury. Frank Bryan once said Newbury is the town that time forgot. That’s probably about right.   It is “New Bury.”  It’s an “ury” instead of an “erry” and the “B” is right there with the “New.” “NewBury”

MK:  Professor Bryan was my favorite professor at UVM!  Speaking of UVM, you skied for the Cats.  What were your events? Also, I don’t think people realize how amazing it is to receive a ski scholarship to UVM. Only 3 schools have won more national championships.  That means that UVM is to college skiing what Duke is to men’s college basketball. Was UVM your dream all along?

MG: What a great time to talk about skiing – the University of Vermont Ski Team just hosted NCAA’s and came in second behind Utah. Go Cats! I will quietly admit that there was a short-lived and naive dream of skiing for CU Boulder but the then Director of Skiing, Chip LaCasse, to his credit, was recruiting locally (rather than internationally) and gave a handful of Vermonters opportunities of a lifetime.

I can’t comment on Duke basketball, but UVM skiing is not for the faint of heart. The nordic ski team trained every day, some days twice per day, with the exception of Monday, from August to March and all summer long. Races ranged from 5kms to 20kms, both classic and skate, with the occasional relay or sprint relay. Although skiing is an individual sport, in college you race as a team. Each Thursday we would load up the vans and drive to races or “carnivals” hosted by colleges across New England. Alpine and nordic team results would be combined after two days of racing with one collegiate team coming out on top. As you might imagine, there were UVM traditions to be upheld and no shortage of rivalries.

I raced all four years (not always fast) and served as a captain. Above all my teammates became some of my closest friends and remain so to this day.

MK:  Colorado tries its best to beat UVM! That would’ve been a conflict of interest! #ThisIsVermont  The Buffs loss was our gain.

All kidding aside, great answer!  A few things.

First, the work required.  Your success as a skier didn’t come by accident.  The dedication to the training.   I can’t imagine the time commitment!  I suspect that growing up on a working farm was like skiing.  Both probably involved lots of hard work, at hours that most people weren’t up, in weather conditions that kept most people inside.  Did lessons you learned on the farm help with being a competitive skier?  Did both (or either) help you to tackle the workload that is the first year of law school?

MG: Thanks! Although I have to say this interview is making me sound super tough and disciplined. I’m not! I still struggle with an early morning workout. To answer your question though, I do think growing up on a farm instilled an inevitable attraction to hard work and being outside. Farming, and having parents who do not shy away from a little healthy competition, probably left me and my siblings constantly self-imposing physical challenges–why carry one flat of strawberries when you can carry 2 or 3 or by end of summer 4. Equal parts training and efficiency. Without question, managing school work while ski racing (or vice versa) at UVM was great preparation for law school. I also came to appreciate, as I am sure many in the legal community do, that the most productive, “clear-headed” work, comes in the hours after a good workout.

 MK: Clearing the head.  That’s wellness!  I’m with you though: as much as I love the idea of sunrise runs that I finish before work, those early wake ups are NOT fun.  But, speaking of wellness, do you still ski?  In legal ethics, I often talk about conflicts.  For some athletes, the conflict that exists between doing something for enjoyment vs. doing it as a competitor is too much to overcome.  So, once they stop competing, they give up the sport. Having competed at the highest levels, do you ever find it difficult to ski for the pure enjoyment of it??  Conversely, I still love to run even though I’m not as fast as I used to be. As much as I love it, there are times where what I wouldn’t give for just one more race as good as I once was.  So, even if you’re out enjoying a beautiful & relaxing day on the trails, does your mind ever wander to that feeling you used to have as you waited at the starting line in Green & Gold?

MG:  This is a great question! I’ll admit I still have the occasional racing dream. It normally starts out with feelings of incredible and surprising speed and “I’ve still got it” followed by profound and mortifying exasperation. When I was racing, I loved sprint races — 1km qualification, followed by the top 30 or so skiers racing in heats of 5 or 6 with 2 or 3 racers progressing from each heat to a final heat. It is a more tactical, high-energy and spectator-friendly race. In my dream, I can “fake it” for the qualification round.

Some athletes learn to ski in order to race. Although my parents were competitive ski racers, to his credit, my father taught us to ski for the love of skiing. Racing came later, and random sprint dreams aside, I crave a good ski far more than the competition.

 MKLove the dreams! Mine are often daydreams as I’m running.  The body & brain re-living the feeling of a PR or great race.  I want to go back to something you said earlier.  You mentioned the life-long friendships with your teammates.  There’s something about the shared experience that forges bonds – not only among teammates, but among competitors. My closest friends are people I met thru basketball.  My “attorney wellness” is nourished by those relationships outside the legal profession.  Do you feel the same?

MG: Absolutely. This is by no means a dig at our profession, I am happy to run or ski with fellow attorneys but sometimes you have to be clear about why you are doing what you are doing. Basketball, skiing, running, should be cathartic. Inviting colleagues does not always make it so. Inevitably, you start talking about work. There have to be some ground rules!

I recall the first winter I did not ski race and did not have teammates. It was 8 months after graduating from UVM, I moved to Washington, D.C. to work for Rep. Peter Welch. I had not figured out the work-life balance and it was the first winter without racing or a true winter. My body was miserable and confused. On the advice of a friend, I joined a running club “Fleet Feet Sports” in Adams Morgan. A couple of the runners became close, non-work, running friends. We trained for the USMC marathon together and built a unique bond that was cathartic, supportive, competitive and limited to our non-work identities. It was terrific. I have lived in a lot of different places and try to forge these bonds.

IMG_1686 

(Molly, some of her UVM teammates, and Rally Cat)

MK: I like those bonds.  As lawyers, we seem to focus on discrete practice areas, tending to bond with others in the same area.  How’d you end up focusing on Nordic vs. Alpine?  Also, once we pick a practice area, we seem not to venture to another.  Do you downhill ski?

MG: I like the comparison to practice areas. I keep both sets of equipment in my car (just in case…). I learned to alpine ski at one of my favorite spots in Vermont, “Northeast Slopes” in East Corinth. It’s one of the oldest rope tows in the United States, and still operating today. One of Vermont’s hidden treasures. Why nordic? My mother was an alpine racer (an adrenaline chasing downhill racer) and my father was a nordic racer. Ultimately, nordic won over, but the practice areas are ever evolving.

MK:The T-Bar! We used to drive by the Slopes on our way to Bradford! Speaking of “ever evolving,” can we talk about training equipment for a moment? I often speak and blog about tech competence. A few years ago, I was running down Spear Street. The UVM ski team was coming other way. It was summer, so they were doing dry land training. They had these contraptions that looked like giant elliptical machines! I was fascinated.  Did you ever train on one of those?

MG: Roller skis! I haven’t put on a pair since 2006. Hundreds, likely thousands, of miles banked on those “contraptions”. I hope the design has improved. In my day they took a lot of balance, and although they were the closest thing to skiing (literally, short skis with wheels on them), they contributed to some pretty epic wipeouts. No breaks! While at UVM, we did an annual 50km or so fall training “ski” through Underhill, Cambridge and up to Fairfax. All told, roller skis do provide a unique way to see some beautiful parts of Vermont.

MK: Yikes!  Concrete ain’t exactly fresh powder!   I do not wear headphones on my runs, even the 20 milers.  Other runners think I’m nuts.  You are out for a long ski by yourself.  Headphones or not?

MG: Headphones? No. You’re out in the woods and its beautiful. Enough said.

 MK:Runners should take heed!  Ok, circling back for a moment. You mentioned an eye-opening journey from your last days at UVM to your first days at VLS.  Can you give us some highlights of the journey?

 MG: I really don’t want to bore your readers to death. In a nutshell, upon graduating from UVM in 2006, I worked as a Congressional campaign scheduler for longtime attorney and state senator Peter Welch. Over a 3-month period, Welch visited all 251 towns (and gores) in Vermont. Ultimately (and I would like to think the 251 “marathon” had something to do with it), Welch won that November and I was offered a job in Washington. A whole crew of Vermonters were hired. It was a tremendous honor to be part of that. Eventually, and because the world was calling, I went on to work for the Geneva-based International Committee of the Red Cross (ICRC). As a Congressional Affairs advisor in the Washington office, I worked with US lawyers and policymakers on international law issues including those arising at the detention facility at Guantanamo Bay, in Iraq and Afghanistan, and with the emerging use of drones. I travelled a lot during that time and led missions to Haiti, Uganda, the Democratic Republic of the Congo, the former Yugoslavia and Georgia. It was eye-opening to say the least! A far cry from Vermont, and as they say, “you can take a girl out of Vermont, but …,” by 2011 I was ready to come home and get cracking on law school.

 MK: Wow! Traveling the world to help people. You did Vermont proud!  And we’re lucky to have you back.  Okay, who are the 2 or 3 other skiers, living or dead, who you’d pick to be on your “dream relay team?”

MG:

  •  Bill KochA Vermonter and the first American ever to win a medal at the Olympics (Innsbruck ’76) in cross-country skiing. For all intents and purposes, he also invented the “freestyle” or “skate” technique.
  • Jessie DigginsNot a native Vermonter (I’m all about inclusivity) but she trains here now, and second American ever to win a medal at the Olympics (PyeongChang ’18) in cross-country skiing. She is an awesome ambassador for the sport and role model for girls.
  • Bob GrayYep, going with my old man. I’ll be honest, there is not a person on the planet who loves the sport as much as he does. All heart.

MKGood job getting Dad in there!  I read in the Valley News that he’s still kicking butt!

IMG_1699

(Molly and her Dad)

MK: Earlier you mentioned classic vs skate skiing.  With the duty of competence in mind, do you have any thoughts on a lawyer who shows up at Trapp Outdoor Center, rents classic skis, then proceeds to try to skate ski all over the property?

MG: Oh, no. Such a brave lawyer. That would be comparable to arriving criminal court and attempting to litigate a civil claim.  I’m always happy to advise on equipment and better yet meet for a ski and especially at Trapp’s.

MK: Molly – that is the perfect closing argument in your case to disbar me from cross-country skiing: “Kennedy is no Bill Koch: it’s like he’s a lawyer who brought a civil claim to criminal court.”

Thank you Molly Gray! Hope some people are inspired to get out and enjoy these last few weeks on the trails!

Related posts:

Monday Morning Answers #153

Welcome to Monday!

Friday’s questions are hereThe answers follow today’s Honor Roll.

Honor Roll

Answers

Question 1

This morning, Client shared information with Lawyer that caused Lawyer reasonably to believe that Client intends to commit suicide tonight.  Lawyer wants to disclose Client’s intent to someone who can intervene.  Under Vermont’s rules, Lawyer

  • A.   must not disclose client’s intent
  • B.   must disclose client’s intent
  • C.   must disclose client’s intent, unless client affirmatively told Lawyer not to
  • D.   may disclose client’s intent

In Vermont, disclosure is permissive.  See, Rule 1.6(c)(1), Comment [10]

Question 2

If a lawyer is holding funds to which both a client and third person claim interests, the lawyer must:

  • A.  disburse the funds as directed by the client
  • B.   hold the funds until the dispute is resolved.  Rule 1.15(e)
  • C.   pay the funds into court
  • D.  withdraw from representing the client

For more on how to handle competing interests to funds held in trust, see my blog posClient Funds: when do third parties have valid interests?

Question 3

Which is correct? A or B?

In an ex parte proceeding, a lawyer ____________ a duty to inform the tribunal of all material facts that will assist the tribunal to make an informed decision, even if the facts are adverse to the lawyer’s client.

  • A.   has.  
  • B.   does not have.

I blogged on this last week:  Candor in an ex part proceeding

Question 4

Lawyer called me with an inquiry. I listened, then said “it’s okay as long as

  • the client gives informed consent,
  • the person doesn’t interfere with your professional judgment or relationship with your client, and,
  • you do not share information with the person that is otherwise confidential and protected from disclosure by Rule 1.6.”

Given my response, what did Lawyer want to know if the person could do?

  • A.   retain Lawyer
  • B.   meet with Lawyer to share information helpful to the client’s matter
  • C.   pay Lawyer to represent the client.  See, Rule 1.8(f)
  • D.   None of the above

Question 5

Judge Merrick Garland made headlines this week, and it had nothing to do with his nomination to the United States Supreme Court.  Rather, it had to do with two topics near and dear to this blog, one of which is the duty of competence.

Judge Garland authored an appellate decision in which he noted that the trial lawyers for one of the parties had conducted an incredibly competent cross-examination.  Throughout the opinion, Judge Garland compared the trial lawyers’ cross-examination to one conducted by a fictional lawyer who is also near & dear to this blog.

Name that fictional lawyer.

Vincent Gambini.  My blog on Judge Garland’s opinion is here.

Image result for my cousin vinny

Five for Friday #153

“Days will be long but the years will fly right by
We’ll never be as young as we are tonight
Baby, ain’t that right?”

~  Make It Sweet, Old Dominion

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

Welcome to #153.

Luke Perry died Monday.  He was 1 birthday shy of 53.

If you don’t know Luke Perry, he was an actor.  Countless outlets, including the New York Times, covered his death.  For purposes of this column, and with no offense to younger legal professionals & law students who are Riverdale fans, Perry played Dylan McKay on Beverly Hills, 90210.

Until I heard that he’d died, I hadn’t thought of him in a long, long time.  Still, the news struck me.  Because Dylan McKay reminds me of Younger Me.

No matter how old you are, there was, is, or will be someone who reminds you of Younger You.  Someone who makes Today You laugh at Younger You, while also making Today You realize that there’s no better time than now to create Future You.

That’s wellness.  Let me explain.

I did my undergrad at UVM, then entered GW Law in 1990.  Back then, FOX wasn’t available in Vermont.  It was available in the DMV.  One of Younger Me’s thrills in moving to D.C. was the ability to watch The Simpsons.  

Correct.  Younger Me arrived at law school eagerly awaiting access to a cartoon. What can Today Me say?  That cartoon is still running.

Anyhow, 90210 debuted on FOX that fall.  Thinking back, I’m not sure I liked it. But, I’m positive Younger Me was addicted to it.

Here’s where laughing at Younger Us comes in.

First, don’t we always laugh at our former selves?

Little me

Seriously mom! A comb over, disco collar, and sweater with bicyles on it?

Second, for those of you who watched 90210, what were we thinking?  Seriously! Would you want your high school daughter hanging around with a guy who looked as old as Dylan?  At least he was only 24 when the show opened. Andrea was 29! Steve was 26 and has WAY more hair in his current Wiki pic than he did on the show. It’s comical that we bought into the notion that they were high school students.

But maybe laughing at Younger Us isn’t a bad thing.  Because laughing is good, and journeys down memory lane can be fantastic.

Prepping this post last night, Perry’s passing started me down a Google/YouTube/Prime-playlist rabbit hole of all things 90210 and the 90s.  I loved the trip.  I put some ribs on the grill, poured a Jack & Coke, and got lost in what used to be.  It made me happy to revisit things that made Younger Me happy.

And that’s okay.  No matter who your Luke Perry/Dylan McKay was, is, or will be, it will always be okay, every now and then, to go down the rabbit hole to Younger You.  Try it.  I guarantee that you’ll smile, if not laugh.

Smiling and laughing are wellness.

Which gets me to Future Us.

I’m not yet old enough to have had my Luke Perry die.

Because he could’ve been me.

And I’ve not yet taken a week off in March to go to spring training.  

I’ve not yet learned to play piano or any of the guitar parts to Paradise City.  Or visited Alaska.

I LOVE college football.  Many years ago, my dad moved to a town in North Carolina that is within easy driving distance of several major college football schools.  

I’ve not yet worked from his house in October, spending the autumn weekends driving to college football games. 

Younger Me would be shocked at all I haven’t done.  And Luke Perry is dead.  There is zero chance that Younger Me would’ve bet on Dylan McKay dying before I did the things Younger Me resolved to do.

You are the same. There are many things that Younger You expected you to have done by now.  And it’s not an age thing.  Whether 26 or 86, Yesterday You might’ve resolved to do something that Today You is already putting off.

Those things are wellness.

As Old Dominion sings, “we’ll never be as young as we are tonight.” In other words, no matter how old you are today, you are tomorrow’s Younger You.

Do the things that Younger You wanted to do.

Do them today.

That’s wellness.

PS: for you OD fans, and from your emails I know many of you are, I love their music and I’m all about their No Shoes Nation vibe.  So much so that Today Me resolves that Future Me will soon let the windshield frame the ocean while the radio is coast-to-coastin’.  Alas, what Today Me wouldn’t give to let that surf side Santa Anna wind mess up the hair that Younger Me had as a 3L.

img_1862

As one of my former players asked “where’d the flow go bro?”

Dude, that s(tuff) don’t just Snapback.

Onto the quiz!

Rules

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception – but one that is loosely enforced – #5 isn’t open book.  (“loosely enforced” = “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

This morning, Client shared information with Lawyer that caused Lawyer reasonably to believe that Client intends to commit suicide tonight.  Lawyer wants to disclose Client’s intent to someone who can intervene.  Under Vermont’s rules, Lawyer

  • A.   must not disclose client’s intent
  • B.   must disclose client’s intent
  • C.   must disclose client’s intent, unless client affirmatively told Lawyer not to
  • D.   may disclose client’s intent

Question 2

If a lawyer is holding funds to which both a client and third person claim interests, the lawyer must:

  • A.  disburse the funds as directed by the client
  • B.   hold the funds until the dispute is resolved
  • C.   pay the funds into court
  • D.  withdraw from representing the client

Question 3

Which is correct? A or B?

In an ex parte proceeding, a lawyer ____________ a duty to inform the tribunal of all material facts that will assist the tribunal to make an informed decision, even if the facts are adverse to the lawyer’s client.

  • A.   has.
  • B.   does not have.

Question 4

Lawyer called me with an inquiry. I listened, then said “it’s okay as long as

  • the client gives informed consent,
  • the person doesn’t interfere with your professional judgment or relationship with your client, and,
  • you do not share information with the person that is otherwise confidential and protected from disclosure by Rule 1.6.”

Given my response, what did Lawyer want to know if the person could do?

  • A.   retain Lawyer
  • B.   meet with Lawyer to share information helpful to the client’s matter
  • C.   pay Lawyer to represent the client
  • D.   None of the above

Question 5

Judge Merrick Garland made headlines this week, and it had nothing to do with his nomination to the United States Supreme Court.  Rather, it had to do with two topics near and dear to this blog, one of which is the duty of competence.

Judge Garland authored an appellate decision in which he noted that the trial lawyers for one of the parties had conducted an incredibly competent cross-examination.  Throughout the opinion, Judge Garland compared the trial lawyers’ cross-examination to one conducted by a fictional lawyer who is also near & dear to this blog.

Name that fictional lawyer.

 

 

 

 

 

 

 

 

 

 

 

Candor in an Ex Parte Proceeding

I’ve not once had this arise in 20 years of reviewing disciplinary complaints.  Maybe, however, it’s because you can’t complain about something you don’t know.

Here’s the issue: a lawyer’s duty of candor in an ex parte proceeding.

Like apps, there’s a rule for that.  It’s Rule 3.3(d).

Generally, it’s not a lawyer’s job to make the other side’s case.  Yes, rule 3.3(a)(2) prohibits a lawyer from knowingly failing “to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.”  However, in most adversary proceedings, the rules do not require a lawyer to disclose or introduce facts that help the adversary more than the client.

Rule 3.3(d) makes clear that an “ex parte proceeding” is a bit different.   Here’s the rule:

  • “In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.”

Comment [14] addresses the rule:

  • “Ordinarily an advocate has the limited responsibility of presenting one side of the matter that a tribunal should consider in reaching an informed decision; the conflicting position is expected to be presented by the opposing party.  However, in any ex parte proceeding, such as an application for a temporary restraining order, there is no balance of presentation by opposing advocates.  The object of an ex parte proceeding is nevertheless to yield a substantially just result. The judge has an affirmative responsibility to afford the absent party just consideration.  The lawyer for the represented party has the correlative duty to make disclosures of material fact known to the lawyer and that the lawyer reasonably believes are necessary to an informed decision.”

In 1999, Vermont replaced the Code of Professional Responsibility with the Rules of Professional Conduct.  At the time, Rule 3.3(d) was brand new. There was no corollary in the old Code.

Now, many of you likely never participate in ex parte proceedings.  If so, that’s fine. I won’t be offended if you stop, or have already stopped, reading. However, this blog tracks exactly how far you read.  And while I won’t be offended, I won’t forget.

Just kidding!  This blog tracks no such thing!!!

Back to my post.

The rules do not define “ex parte proceeding.”  Other than the mention of applications for temporary restraining orders in Comment [14], there’s no guidance as  to when Rule 3.3(d) applies.

Last month, the New York City Bar Association provided guidance in the form of Formal Opinion 2019-01.  New York’s 3.3(d) and Comment [14] track Vermont’s verbatim.  So, while we’re not bound by the NYCBA opinion, it’s helpful.  Here’s the summary.

  • Rule 3.3(d) applies in limited circumstances.
  • It does not apply when a pro se party is absent by choice.
  • It applies to proceedings in which only one side receives an opportunity to present its case.
  • It applies to applications for temporary restraining order when one side has not been provided with notice or an opportunity to appear & be heard on the application.
  • It applies to proceedings in which “interested parties are not permitted to receive notice and participate,” for instance, search warrant applications.

The opinion notes that there are two ways to define an “ex parte proceeding.” Narrowly, only applying to emergency applications for temporary relief.  Or, more broadly, to any matter in which, for whatever reason, one side is absent.  The opinion rejects each extreme and settles on middle ground.  Specifically concluding that:

  • “The rule applies only to proceedings in which, for practical or legal reasons, only one side has an opportunity to present its case.”

Again, I’ve never dealt with this issue in the form of a complaint or an ethics inquiry. However, I’ve practiced under the rule.

I was disciplinary counsel from 2000 – 2012.  In Vermont, upon completing an investigation and concluding that a lawyer violated the rules, disciplinary counsel is not free simply to charge the lawyer with misconduct.  Rather, by rule, before filing a formal petition of misconduct, disciplinary counsel’s charging decision must be reviewed for probable cause by a hearing panel of the Professional Responsibility Board.  Typically, this involves an affidavit summarizing the investigation and a memorandum of law outlining the rule violations.

I filed dozens of probable cause requests. The process is definitely “ex parte.”  That is, the subject lawyer has no right to participate and is not invited to participate.  Thinking back to my days as the prosecutor, I’m not sure I even knew about Rule 3.3(d), even though it clearly applied to me as I filed the pc requests.  Thankfully, my practice was to include a copy of the lawyer’s response to the disciplinary complaint with each pc request that I filed.

Phew!

See the source image

Monday Morning Answers #152

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

Honor Roll

Answers

Question 1

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

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

A, C, and D are types of clients in the conflicts rules (Rules 1.18, 1.7, 1.9).  B is different.  Rule 3.1 is entitled “Meritorious Claims & Contentions” and is the ethics equivalent of civil rule 11.

Question 2

Attorney called me with an inquiry. I listened, then replied, “yes, but only in an amount reasonably necessary for the purpose.”

You may assume that my response accurately (and exactly) quoted the rule.  Thus, Attorney asked whether the rules permit a lawyer to:

  • A.   charge for copying
  • B.   bill for travel time
  • C.   take time off to relax
  • D.   deposit the lawyer’s own money in a trust account.   Rule 1.15(b)

Question 3

There are two rules that impose a duty to take “reasonable remedial” action or measures.  One is the rule that addresses a lawyer’s duties when a nonlawyer assistant does something that would violate the rules if the lawyer did it.  The other is the rule that addresses a lawyer’s duties when the lawyer learns that:

  • A.   the lawyer deposited the lawyer’s own funds into a trust account
  • B.   opposing counsel violated the Rules of Professional Conduct
  • C.   the lawyer inadvertently communicated with a represented party
  • D.   a client engaged in criminal or fraudulent conduct related to a proceeding in which the lawyer represents the client.  Rule 3.3(b).

Question 4

Lawyer called me with an inquiry. I listened, then asked:

  • “I understand the first part: you have reason to believe that your client is going to commit a criminal act.  What I didn’t understand is this: is the criminal act going to result in substantial bodily harm to your client? Or to someone other than your client?”

Lawyer’s inquiry related to the rule on:

  • A.   Client confidences.  
  • B.   Withdrawal
  • C.   Concurrent conflicts of interests
  • D.   Duties of a Prosecutor

This is Rule 1.6If the harm will result to the client, disclosure is permissive under Rule 1.6(c)(1).  If it will result to someone other than the client, disclosure is mandated by Rule 1.6(b)(1).  

Question 5

Speaking of Shakespeare, what did Dick the Butcher suggest to Jack Cade that they do first?

“The first thing we do, let’s kill all the lawyers.” Henry VI, Part II, act IV.

As the Wall Street Journal points out here, many have argued that the line is “pro-lawyer.”  Cade aspired to power.  Dick the Butcher was one of his henchmen.  The path to power included sowing disorder and depriving citizens of their rights, a plan that, first, required ridding society of the stewards of order and protectors of those rights: lawyers.

See the source image