Five for Friday #97

Welcome to #97!

97 is the number of blogs I didn’t write this week.  You see, I’m back into coaching.  In 2014, I retired after having coached varsity basketball for 15 years.  This year, I agreed to help a friend with South Burlington’s middle school teams.  He’s got the “A” team, I’ve got the “B.”  Is it different than varsity? Yes! Is it awesome? Hell yes!!

The “B” squad opened the season yesterday with a 35-15 victory over Essex Middle School.  With the first game out of the way, the jitters are gone and I’ll again use my free time to blog.  And, since I know you’ll be wondering, I’ll be sure to include updates on the squad.  Go Wolves!  #hearthehowl

Ok.  A housekeeping item.  I made a few Netflix recommendations last week.  I’d like to amend one:  Harley Coben’s The Five didn’t turn out as strong as the first few episodes suggested it might.  And, now, I’d like to add one.

As I tried to think of a way to tie 97 to the quiz, I looked at the results from the 1997 Academy Awards.  Fargo received a ton of nominations.   A few years ago, the Coen brothers produced a tv version.  3 seasons have aired.  Out of 5 stars, I give it 8.

The cast changes each season.  My favorite – Season 1, which won the 2014 Emmy and Golden Globe for Outstanding Mini Series.  Billy Bob Thornton starred, with fantastic support from many others, including Martin Freeman.  Freeman has rocked many different roles, but if you try to tell me that his best is anything other than as Tim in the UK version of The Office, well, we can’t be friends anymore.

Tim British Office

Onto the quiz!

Rules

  • None.  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

The trust account rules require lawyers to reconcile trust accounts:

  • A.   Timely, with “timely” being no less than monthly
  • B.   Every other month
  • C.   Quarterly
  • D.   The rules are silent as to how often trust accounts must be reconciled

Question 2

Soon, the Professional Responsibility Board will formally recommend that the Court review several proposed changes to the Rules of Professional Conduct.  One recommendation will be to amend the rule that applies to “lateral transfers.”

Generally, a “lateral transfer” raises issues related to:

  • A.  Trust accounting
  • B.  Conflicts that arise when a lawyer changes firms
  • C.  The papers & information that must be in the file when it’s delivered to the client
  • D.  A terminated lawyer’s duty of confidentiality when updating a former client’s new lawyer on the status of the matter

Question 3

Attorney called with an inquiry. I listened, then replied “the rule applies to statements of fact.  The Comment suggests it doesn’t apply in negotiations or to mere ‘puffery’ to opposing counsel.”

What rule?

  • A.    Trial Publicity
  • B.    Client Confidences
  • C.    Advertising
  • D.   Truthfulness in Statements to Others

Question 4

Lawyer called me with an inquiry. I listened, then replied by reading the rule aloud.   Then, I said “here are the exceptions. Among other things, you can state information that’s in the public record, including the claims, defenses, and names of people involved.  You could also request assistance obtaining information or evidence.  Just don’t do anything that will have a substantial likelihood of materially prejudicing the outcome.”

What rule?

  • A.    Trial Publicity
  • B.    Client Confidences
  • C.    Advertising
  • D.   Truthfulness in Statements to Others

Question 5

Speaking of the 1997 Academy Awards, Fargo won two of the major awards:  Frances McDormand won Best Actress and Joel Coen won Best Screenplay.

The same year, another movie received nominations for several of the major awards.  It’s a movie that was based on Leigh Steinberg.  In real life, Steinberg is a lawyer and agent who has represented many top athletes.  In ’97, the actor who played Steinberg was nominated for Best Actor, but didn’t win.  However, Cuba Gooding Jr. won for Best Supporting Actor for his role as one of the clients.

Name the movie.

Fargo

 

 

Monday Morning Answers

Happy Monday!

A goal this week: W.I.N. you 3 feet of influence.

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

Honor Roll

  • Karen Allen, Esq.; Karen Allen Law
  • Matthew AndersonPratt Vreeland Kennelly & White
  • Linda Baccki, Law Office Study Program, Law Office of Cristina Mansfield
  • Penny Benelli, Dakin & Benelli
  • Andrew DelaneyMartin & Associates
  • Bob Grundstein, Esq.
  • Tammy Heffernan, Esq.
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy, Queen Mum, JB Kennedy Associates
  • Kevin LumpkinSheehey Furlong & Behm
  • Lon McClintockMcClintock Law Offices
  • Jack McCullough, Vermont Legal Aid, Project Director – Mental Health Law Project
  • Hal Miller, First American
  • Nancy Hunter Rogers, Chamberlin Elementary School
  • Kane Smart, ANR, Office of General Counsel, Enforcement & Litigation Section
  • Robyn SweetCORE Registered Paralegal, Cleary Shahi  & Aicher
  • Thomas Wilkinson, Jr.; Cozen O’Connor

Answers

Question 1

Fill in the blank.

Lawyer wonders whether a client’s agreement to waive a conflict complies with the rules.  Researching it, Lawyer learns that ___________________ “denotes a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostating, photography, audio or video-recording, and e-mail.”

  • A.   Informed consent
  • B.   Writing or Written; Rule 1.0(n)
  • C.   Waiver
  • D.  Acceptance

Question 2

The word “remonstrate” appears in comments to ONE rule.  Which rule?

  • A.   Diligence
  • B.   Competence
  • C.   Advertising
  • D.  Candor Toward The Tribunal; Rule 3.3, Comment [10]

Question 3

True or False:

If Attorney sues Client for a fee, Attorney cannot represent herself at trial if her testimony will be reasonably necessary to establishing the nature and value of the legal services that she rendered to Client.

False.  Rule 3.7(a)(2)

Question 4

Attorney called me with an inquiry.  I listened, then replied “over 20 years ago, the rule was changed to make it clear that it not only applies to ‘parties,’ but to any person who is represented in the matter.”

Which rule?

Rule 4.2 Communication with a Person Represented by Counsel.  See, Comment [2]

Question 5

I am an actress.

On TV, my name is Rachel and I am a summer associate at a law firm.  For many years, I worked as a paralegal at the firm.  I wanted to go to Harvard Law, but never scored high enough on the LSAT.  Thanks to help & encouragement from one of the firm’s lawyers, I kept trying and, eventually, scored high enough to get into Columbia Law, which I’m currently attending.

The lawyer who helped me?  His name is Mike.  Some would say he’s no prince. When the firm hired him as an associate, he neglected to disclose that he had never gone to law school and wasn’t even really a lawyer.  But, what a guy! We fell in love and, now, on the show, we’re engaged.

In real life, I also just got engaged.  And not to some lawyer with a sketchy background.

Who am I?

Meghan Markle.  The show is Suits.  If you haven’t heard of her, in real life, she and Prince Harry recently engaged.  

Markle

 

Five for Friday #96

Welcome to #96!

If you missed last week’s Thanksgiving-themed quiz, it’s here.

Over Thanksgiving, I binged on Manhunt: UNABOMBERThe title says it all: the show recounts the desperate search for The Unabomber.  It’s link to this column is that the FBI located & arrested Ted Kaczynski in 1996.

Now, let’s spend on second on “binged.”  In the preceding paragraph, I used it to mean that “over Thanksgiving, I ‘watchedManhunt: Unabomber.”   And I watched it like a normal person.  Meaning, I did other things in between episodes.  Like, get off the couch, eat, go outside, and reply to texts & calls.  Unlike seasons 1 and 2 of  The Fallboth seasons of Last Chance U, or my current experience with Harlen Coben’s The Five, Manhunt: Unabomber didn’t present the situation in which I’d watch an episode, check the time, convince myself “just one more tonight will be ok,” then wake up swearing at myself for watching one more one more until well after midnight. Still, it’s pretty good.

And it has several aspects that, I think, will appeal to lawyers.

I’d either forgotten or never known how the FBI tracked down Kaczynski.  The show’s main character is real-life FBI agent Jim Fitzgerald.  “Fitz” was a pioneer in the field of forensic linguistics.  Long story short, painstakingly poring over the Manifesto for years, and apparently without the help of a computer or algorithms, he used words to profile the Unabomber. There’s an interesting scene in which a federal judge has to decide whether a person’s language pattern – “idiolect” – can provide probable cause for a search.

Two other law-related aspects of the show interested me.  First, in one episode there’s a suggestion that the iconic sketch isn’t of Kaczynski at all, but a recalled memory of the sketch artist to whom the witness gave her original description.  If true, it’s (another) interesting comment on the reliability of eye-witness testimony.

The second actually ties into legal ethics.  Rule 1.2(d) makes it very clear that, in a criminal case, the client controls whether to plead, waive a jury trial, and testify.  The show recounts the tension between Kaczynski and his legal team regarding an insanity plea – his lawyer telling him that her duty was to save his life, Kaczynski responding that he’d rather die than plead insanity.  It reminded me of an issue that is pending before the U.S. Supreme Court – whether a criminal defense attorney can concede guilt over a client’s objection.

Ummm, I just got back to my laptop after re-filling my coffee and, now, don’t really remember where I going with this post.  Suffice to say, Manhunt: UNABOMBER is worth checking out.

Plus, I still haven’t fully thought out my inevitable post on East Coast v. West Coast.  When I do, it’ll be the final installment in my trilogy that, to date, includes Beatles v. Stones and Nirvana v. Pearl Jam.  So, even though Tupac was shot in ’96, I’ll have to work my whodunnit into the next episode.

Speaking of forensic linguistics, the preceding paragraph includes exceedingly valuable clues into my position in the East Coast/West Coast debate.

Onto the quiz!

Rules

  • None.  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

Fill in the blank.

Lawyer wonders whether a client’s agreement to waive a conflict complies with the rules.  Researching it, Lawyer learns that ___________________ “denotes a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostating, photography, audio or video-recording, and e-mail.”

  • A.   Informed consent
  • B.   Writing or Written
  • C.   Waiver
  • D.  Acceptance

Question 2

The word “remonstrate” appears in comments to ONE rule.  Which rule?

  • A.   Diligence
  • B.   Competence
  • C.   Advertising
  • D.  Candor Toward The Tribunal

Question 3

True or False:

If Attorney sues Client for a fee, Attorney cannot represent herself at trial if her testimony will be reasonably necessary to establishing the nature and value of the legal services that she rendered to Client.

Question 4

Attorney called me with an inquiry.  I listened, then replied “over 20 years ago, the rule was changed to make it clear that it not only applies to ‘parties,’ but to any person who is represented in the matter.”

Which rule?

Question 5

I am an actress.

On TV, my name is Rachel and I am a summer associate at a law firm.  For many years, I worked as a paralegal at the firm.  I wanted to go to Harvard Law, but never scored high enough on the LSAT.  Thanks to help & encouragement from one of the firm’s lawyers, I kept trying and, eventually, scored high enough to get into Columbia Law, which I’m currently attending.

The lawyer who helped me?  His name is Mike.  Some would say he’s no prince. When the firm hired him as an associate, he neglected to disclose that he had never gone to law school and wasn’t even really a lawyer.  But, what a guy! We fell in love and, now, on the show, we’re engaged.

In real life, I also just got engaged.  And not to some lawyer with a sketchy background.

Who am I?

the-quiz

Monday Morning Answers – Thanksgiving

Welcome to Monday! I hope everyone had a peaceful and relaxing holiday weekend.

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

Honor Roll

Answers

Question 1

Neal Page is a character in a movie that takes place over Thanksgiving.  Indeed, the movie is about Page’s attempt to get home for Thanksgiving.  Del Griffith is another character from the same movie.  Griffith is a shower curtain salesman.  They met in New York City and, eventually, arrived in Chicago via milk truck.

Here’s my imaginary scenario:

In connection with all civil & criminal claims that resulted from their travel adventures, Attorney represents Page and Lawyer represents Griffith.  Talk about complex litigation: depending on the matter, Page & Griffith find themselves as adversaries, co-plaintiffs, co-defendants, and co-victims.  We’re talking arson, credit card fraud, wrong-way driving, a hotel burglary, and an alleged assault on a taxi driver.

Both Attorney & Lawyer are competent, so they understand the value of visual evidence.  Here’s a picture that each used in one of the many trials that dealt with the fallout from their clients’ misadventures – your task, name the movie.

PTA MAP.gif

PLANES, TRAINS & AUTOMOBILES

Planes Trains & Automobiles

Question 2

Lawyer represents Client.  The issue: a dispute related to Opposing Party’s contractual right to slap Client, including whether a slap that took place on Thanksgiving should or should not count towards Opposing Party’s number of contractually allotted slaps.  The most critical witness – Lily, in her role as Slap Bet Commissioner.

Name the TV show.

How I Met Your Mother

Slapsgiving

Question 3

As friends, Monica and Rachel had some interesting Thanksgiving adventures.

One Thanksgiving, Monica invited Will Colbert to dinner.  I always wondered if Rachel ever talked to a competent lawyer about suing Monica for emotional distress. I mean, when they were kids, Will had founded the “I Hate Rachel” club!

Name the actor who played Will in the Thanksgiving episode.

Brad Pitt

Pitt Thanksgiving

Question 4

One Thanksgiving, Arlo and his friend Rick agreed to take some trash to the dump as a favor to some friends who had converted a church into a restaurant.  The dump was closed for the holiday, so they dumped the trash off a cliff.  The next day, they were arrested for littering.  Attorney was assigned to represent them.

Presumably, competent representation will require Attorney to interview the restaurant owner.

What’s her first name?

ALICE, from Alice’s Restaurant by Arlo Guthrie

Question 5

In a speech about Tater and Tot, a famous (and real) lawyer said:

“And it is my great privilege — well, it’s my privilege — actually, let’s just say it’s my job — to grant them clemency this afternoon. As I do, I want to take a moment to recognize the brave turkeys who weren’t so lucky, who didn’t get to ride the gravy train to freedom — who met their fate with courage and sacrifice — and proved that they weren’t chicken.”

Name the speaker.

President Barack Obama

Obama Turkey.jpg

Malcolm & Monday’s Answers

Good morning!

Friday’s questions are HERE.  I can confirm that Dave Carpenter finished the Philadelphia Half Marathon – and ran it while wearing his firefighting gear.  Great job Dave!

Before I get to the answers, I’d be remiss not to mention the passing of Malcolm Young. I often include musical references in my blog posts, in particular in the #fiveforfriday legal ethics quizzes.

It’d be a violation of Rule 4.1 for me to tell you that I am a huge fan of AC/DC. However, it’s not a violation to state that I’m a huge fan of the Back in Black album.  Personally, I think the B-side is the best B-side of any rock album.  Also, the album played an important role in my music fandom.

Last night, I confirmed with the First Brother that Back in Black was the first album that either of us bought on our own.  Before snagging it at a flea market at our elementary school, we’d been confined to our parents’ albums (and 8-tracks).  I don’t think either of us will ever forget (or regret) learning every word to each of The Mamas & The Papas greatest hits.  Nevertheless, Back in Black marked the beginning of our passage to musical adulthood.

Malcolm – if there’s a bar wherever you are, have a drink on me.

acdc-back-in-black

Oh yeah, don’t forget to send me your votes for the top 3 novels that focus on the law, a lawyer, or lawyers!

Onto the answers!

Honor Roll

Answers

Question 1

Attorney called me with an inquiry. I listened, then said “your only duty under the Rules of Professional Conduct is to notify the sender that you received it.”

Most likely, then, Attorney called me to discuss the receipt of:

  • A.   A wire transfer.
  • B.   Information that Attorney knows was inadvertently sent or produced.  See, Rule. 4.4(b)
  • C.   A subpoena to testify about a former client.
  • D.  A request to deliver a former client’s file to a new attorney.

Question 2

By rule, two words have to be on a certain type of communication from lawyers.  What are the 2 words?

  • A.  “Advertising Material.”  See, Rule 7.3(c).
  • B.  “Of Counsel.”
  • C.   “Confidential Information.”
  • D.   “Privileged Information.”

Question 3

True or false: the rules prohibit a lawyer from serving as a director, officer or member of a legal services organization (other than the lawyer’s firm) that serves persons having interests adverse to a client of the lawyer.

False.  Rule 6.3.

Question 4

Lawyer represents Client.  Opposing Party is not represented by counsel.

Lawyer and Opposing Party negotiate a resolution that must be reduced to writing.  Lawyer prepares the document and presents it to Opposing Party for signature.  Opposing Party asks “what do you think it means if I sign this?”

Which is most accurate?

  • A.   Lawyer may not respond other than to say “I can’t give you any advice.”
  • B.   Lawyer must advise Opposing Party to contact an attorney for advice.
  • C.   Lawyer may not go through with the resolution until Opposing Party has been given a reasonable period of time to contact an attorney for advice.
  • D.  Lawyer may explain her own view of the meaning of the document, as well as her view of its underlying legal obligations.

Maybe this was poorly phrased.  But, “D’ is correct under the rule.  It’s Rule 4.3. The key langauge is in the final sentence of Comment [2]: “So long as the lawyer has explained that the lawyer represents and adverse party and is not representing the person, the lawyer may inform the person of the terms on which enter into an agreement or settle a matter, prepare documents that require the person’s signature and explain the lawyer’s own view of the meaning of the document or the lawyer’s view of the underlying legal obligations.” (emphasis added).

B is not correct.  The rule does not mandate Lawyer to advise Opposing Party to contact an attorney for legal advice. Rather, IF Lawyer gives any advice, the only advice she may give is to seek legal advice.

Question 5

Who am I?

In 2011 and 2014, I won the Emmy for Outstanding Actress in a Drama.  I won for a role in which I played a lawyer who, among other things, graduated at the top of her law school class despite a penchant for falling asleep in class.  In the very first episode, viewers learned the my husband, a state prosecutor, had been jailed for his part in a sex & corruption scandal.

But what would this question be without a connection to 1995?

Back then, I didn’t play a lawyer.  Rather, I played a nurse.  But even back then, I did it well.  In 1995, I won the Emmy for Outstanding Supporting Actress in a Drama.

Interestingly, in TV world, I didn’t have to move.  As both a nurse & lawyer, I worked in the same city.

Again, who am I?

Julianna Margulies.   In 2011 & 2014, I won for my role as Alicia Florrick on The Good Wife.  In 1995, I won for my role as Carol Hathaway on ER.

 

 

 

Five for Friday #95

Welcome to #95!

95 doesn’t remind me of the year.  Nor does it remind me of a movie, a band, a singer, or an athlete who wore the number.

For whatever reason, the first thing that jumps to mind when I think of 95 is how miserable I am whenever I’m driving down Interstate 95.  Whether driving to and from law school when I was at GW, or driving from D.C. to my dad’s & other points south, I’ve never liked it.  And one of my least favorite sections of I-95 is the part around Philly.  So,  naturally, as I contemplated the number 95 for this column, my thoughts soured.

But they picked up yesterday when I heard from a fellow lawyer — more on him later – who is heading to Philadelphia this weekend to run the Philadelphia Half Marathon. Folks, in my opinion, besides the Vermont City Marathon, which will always remain #1 in my heart, there’s no better marathon or half marathon than Philly.

For one, it’s usually perfect running weather – not too hot, not too cold.  For another, there’s an 8K on Saturday, with the half & full on Sunday. Most marathoners go for a short run the day before a race – might as well get a medal for doing so!  Also, besides being nice & flat, the course is a virtual run through history.  Check out some of the sites that runners pass along the way.  Finally, the marathon starts & finishes at the Philadelphia Museum of Art.

What’s this? Mike is writing about art museums?

Come on people, of course I am! I’m way more than pop culture & sports.

Ok, maybe I”m not.

Check out the picture on the marathon’s home page.  Recognize the museum now?

The Rocky Steps!

Rocky Steps

Anyhow, I’ve run Philly twice: the full in 2011, the half last year.  Here’s a close-up of my medal from 2011.  Check out the race motto:

Medal.jpg

Best:Time Of Your Life.

Very clever Philly! Even the italics & colon to make it look like a race result. For example, 3:28.25.  I remember chuckling at the slogan when I picked up my bib & shirt the day before the race. I wasn’t chuckling on race day itself.  T

Things went haywire somewhere around Mile 20.  I was overheated, dehydrated, exhausted and, for a few minutes, so confused that I wondered if I was lost.  That’s correct: surrounded by thousands of other runners all headed in the same direction as me – which entailed shuffling along a street lined by thousands of fans on each side — I momentarily thought I was lost!

When I came to my senses, I said to myself “Best of Time of Your Life my ass!!!”

Still, I continue to love to run.  It’s an important outlet.

Now, back to the lawyer who is running Philly this weekend.

A few weeks ago, I posted a blog in which I encouraged lawyers to take time to do non-lawyerly things.  Here’s what I wrote:

Winter is long.  Darkness can be tough.  And, as the numbers show, we’re a profession that struggles to cope with stress, anxiety, substance abuse and mental health issues.  We must promote wellness and work-life balance, and we must encourage lawyers to make time for what matters.  In other words, let’s focus on ensuring that light shines in our personal & professional lives.

I even asked for pictures of you doing non-lawyerly things, as proof that it’s possible to let the light shine in.

Dave Carpenter is a lawyer at Facey Goss McPhee and a member of the VBA Board of Managers.  He is also a firefighter and the chair of Orwell’s Volunteer Fire Department.  On Sunday, Dave is going to run the Philadelphia Half Marathon . . . in his firefighter gear!

He’s done it before:

Dave Carpenter 1

Dave Carpenter 2

Dave – congrats, good luck, and great example of #lawyerlight!

If any of you find yourself in the Philly area, make sure to check out Lucky’s Last Chance. I’m a fan of the one in Manayunk.  It’s right about mile 20 of the marathon.  Fantastic burgers.

Onto the quiz!

Rules

  • None.  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

Attorney called me with an inquiry. I listened, then said “your only duty under the Rules of Professional Conduct is to notify the sender that you received it.”

Most likely, then, Attorney called me to discuss the receipt of:

  • A.   A wire transfer.
  • B.   Information that Attorney knows was inadvertently sent or produced.
  • C.   A subpoena to testify about a former client.
  • D.  A request to deliver a former client’s file to a new attorney.

Question 2

By rule, two words have to be on a certain type of communication from lawyers.  What are the 2 words?

  • A.  “Advertising Material.”
  • B.  “Of Counsel.”
  • C.   “Confidential Information.”
  • D.   “Privileged Information.”

Question 3

True or false: the rules prohibit a lawyer from serving as a director, officer or member of a legal services organization (other than the lawyer’s firm) that serves persons having interests adverse to a client of the lawyer.

Question 4

Lawyer represents Client.  Opposing Party is not represented by counsel.

Lawyer and Opposing Party negotiate a resolution that must be reduced to writing.  Lawyer prepares the document and presents it to Opposing Party for signature.  Opposing Party asks “what do you think it means if I sign this?”

Which is most accurate?

  • A.   Lawyer may not respond other than to say “I can’t give you any advice.”
  • B.   Lawyer must advise Opposing Party to contact an attorney for advice.
  • C.   Lawyer may not go through with the resolution until Opposing Party has been given a reasonable period of time to contact an attorney for advice.
  • D.  Lawyer may explain her own view of the meaning of the document, as well as her view of its underlying legal obligations.

Question 5

Who am I?

In 2011 and 2014, I won the Emmy for Outstanding Actress in a Drama.  I won for a role in which I played a lawyer who, among other things, graduated at the top of her law school class despite a penchant for falling asleep in class.  In the very first episode, viewers learned the my husband, a state prosecutor, had been jailed for his part in a sex & corruption scandal.

But what would this question be without a connection to 1995?

Back then, I didn’t play a lawyer.  Rather, I played a nurse.  But even back then, I did it well.  In 1995, I won the Emmy for Outstanding Supporting Actress in a Drama.

Interestling, in TV world, I didn’t have to move.  As both a nurse & lawyer, I worked in the same city.

Again, who am I?

 

 

 

 

 

 

 

Five for Friday 94: Basketball & O.J.

Welcome to #94.

Before I get to 94, don’t forget 4.  As in, who are the 4 on your Mt. Rushmore of US Supreme Court justices?  Some great responses so far!

Back to 94.

I’m a basketball guy and, to me, 94 is a basketball number.  For one thing, a regulation court is 94 feet long.  For another, in my eternal quest to score 100 points in a single game, I usually ended up somewhere around 94.  With “somewhere around 94” meaning “points still to score to get to 100.”   Semantics.

Furthermore, most of you know that this blog focuses on the law, with doses of sports & pop culture. This is particularly true of the #fiveforfriday column.

I’m not sure there’s a year in which the intersection of the law, sports, and pop culture had a more profound impact on American society than 1994.

To the extent they’re remembered at all, the 1994 NBA Finals aren’t remembered for much to do with basketball.  No, I’d be willing to bet that they’re best remembered for one thing:

The OJ chase.

Game 5 of the 1994 NBA championship tipped off on June 17, 1994.  The New York Knicks hosted the Houston Rockets at Madison Square Garden. I’ll never forget it.  Earlier that day, my brother and I had driven to Bradford for our grandfather’s funeral.  We got back to South Burlington just in time to watch the game at the same place we watched every other big (and not so big) game back then: the bar at the Ground Round on Williston Road, just around the corner from where we’d grown up.

We didn’t watch the game.  Or maybe we watched a little bit of it, I don’t really recall.  I just remember that, at some point, the bar switched to coverage of the “chase.”  We stayed.  Enthralled.

I won’t even begin to try to describe the night. I can’t do it justice. To jog your memory, a simple Google search returns plenty of retrospectives of the event.  Suffice to say, I’ve watched a ton of basketball.  There are only 2 NBA games I remember exactly where I watched.  One is the OJ game.

For those of you too young to remember, I’m hard-pressed to imagine today’s equivalent of the chase. Here’s the best I can do.

In 1994, OJ was a celebrity.  He’d starred in commercials for years, and had made memorable appearances in movies. He was in the NFL Hall of Fame.  He was 25 years removed from being the #1 pick in the NFL draft after a decorated college career that included being named an All-American and winning the Heisman Trophy as the nation’s most outstanding player.

Today, Shaquille O’Neal is a celebrity. He’s starred in commercials for years, and has made memorable appearances in movies.  He’s in the NBA Hall of Fame.  He is 25 years removed from being the #1 pick in the NBA draft after a decorated college career that included being named an All-American and winning the Rupp Trophy as the nation’s most outstanding player.

So, imagine:

  • It’d be like watching last season’s New England-Atlanta Super Bowl, only to have the game interrupted by coverage of the police “chasing” Shaq to arrest him for a double-murder,
  • as a former teammate drove him around for hours,
  • while Shaq streamed the entire incident via Facebook Live,
  • as the rest of us stopped everything we were doing & caused the nation’s wireless networks to melt.

The chase eventually gave way to a trial, the impact of which continues to reverberate today.  Even ignoring the social impact – or maybe because of the social impact – I don’t know of a trial so fixed in our collective memory.

More than 20 years later, I’m guessing that a huge number of Americans over the age of 35 can still name most of the key players – the judge, the prosecutors, the defense team, and multiple witnesses – without even having to think very hard.  That never happens.  I mean, I don’t remember a single witness I called in my very first jury trial and it usually takes me a few minutes to remember whether Judge Meaker or Judge Jenkins presided!!  Also, is there a more widely known quote from any closing argument in history?

Finally, of the many pop culture aspects of the chase, one fascinates me: the events of the day introduced the world to the Kardashians.

Hours before the chase, and long before we’d meet his wife, kids, and his kids’ half-sisters, Attorney Robert Kardashian held a press conference.  It started shortly after his client, OJ, failed to surrender by an established deadline. Kardashian read aloud a letter from OJ.  Many interpreted it as OJ’s suicide note.  Talk about reality tv.

Actually, maybe the chase and subsequent trial qualify as the original reality tv.  Lives were taken, lost, ruined, destroyed, and forever altered.  And we watched it happen.

94.  A bizarre, surreal, and historic collision of law, sports, and pop culture.

If you’re interested, American Crime Story: The People v OJ Simpson dramatizes the entire case, including the chase. It won multiple Emmys and Golden Globes.

Dream Team

Onto the quiz.

Rules

  • None.  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

There is a rule that links an attorney’s duty of diligence to:

  • A.  Promptness
  • B.  Thoroughness
  • C.  Preparation
  • D.  Skill

Question 2

For the purposes of Vermont’s rules, which is different from the others:

  • A.  A check drawn on the IORTA of a realtor licensed in Vermont
  • B.  A check drawn on the IOLTA of a lawyer licensed in Vermont
  • C.  A check in the amount of $2,500 drawn on a client’s personal checking account
  • D.  A check in the amount of $500,001 issued by an insurance company that is licensed to do business in Vermont

Question 3

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

“For it to be okay, 3 things have to happen.  (1) It has to be in proportion to services you render, or, if not, you have to agree to assume joint responsiblity for the representation; (2) the client has agree and confirm the agreement in writing; and, (3) the total has to be reasonable.”

What did Attorney call to discuss?

Question 4

There is a rule that prohibits a lawyer from stating a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused.  It applies:

  • A.   In trial
  • B.   Only during closing arguments
  • C.   Only during opening statements
  • D.   During closing arguments AND to statements made to the press

Question 5 – Two parts:

In real life, O.J.’s attorney, Johnny Cochran, argued “if it doesn’t fit, you must acquit.”  He was referring to the so-called “bloody gloves.”

Part 1:

Jackie Chiles is a fictional attorney who regularly appeared on Seinfeld.  The character is a parody of Johnnie Cochran.  In the episode “The Caddy,” Chiles represented Kramer in a suit against Sue Ellen Mischke.  Kramer alleged that Mischke’s attire, while walking down the street, so distracted him as to cause him to get into an accident.  Chiles’ skillful and eminently competent cross-examination of Jerry Seinfeld delivered Kramer to the brink of a courtroom victory, only to have Kramer ruin it.  Against Chiles’ advice, Kramer took his golf caddy’s advice and asked Mischke to try on the piece of clothing that, allegedly, had distracted Kramer and caused the accident.  She tried it on, and it didn’t fit.  So, Kramer lost.

What was the piece of clothing?

Part 2:

In an episode of South Park, Chef sued a record company for harassment.  The record company hired a cartoon version of Johnnie Cochran.  During his closing argument, cartoon Cochran inexplicably asked the jury to consider why a character from a famous series of movies would live on the planet Endor.  He argued: “ladies and gentlemen, it does not make sense! If _____________ lives on Endor, you must acquit!! The defense rests.”

The movie character is 8 feet tall and has a one-word name.  His co-pilot and other friends associated with the rebellion often use a shortened-version of the name. Fill in the blank with the movie character’s name.

 

 

50 Resolutions: Don’t be a jerk.

Lawyers can provide competent & diligent representation without being jerks.

Don't Be a Jerk

Last week, I posted The 50 Original Rules.  It’s a post that briefly recaps the history of the conduct rules that apply to lawyers.  Best I can tell, the earliest record of guidelines for attorney conduct in the United States is David Hoffman’s 1836 publication of his Fifty Resolutions in Regard to Professional Deportment.  My post includes each of Hoffman’s 50 resolutions.

181 years later, it’s somewhat fascinating to me how many of Hoffman’s resolutions continue to resonate.  Many are embedded in the rules and our collective professional conscience.  Given my fascination, I’ve resolved to blog about the continued relevance of Hoffman’s resolutions, taking them one at a time.

I don’t know how long it’ll take me to get through all 50.  No matter, if even one of the resolutions resonates with but one of you, this endeavor will have been a success.

Here are my thoughts on Resolution #1.

Summary:  don’t be a jerk.

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Fifty Resolutions in Regard to Professional Deportment

DAVID C. HOFFMAN (1836)

1.    I will never permit professional zeal to carry me beyond the limits of sobriety and decorum, but bear in mind, with Sir Edward Coke, that “if a river swell beyond its banks, it loseth its own channel.”

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Hoffman’s initial resolution not to “permit professional zeal to carry me beyond the limits of sobriety and decorum” remains a crucial concept.  Indeed, the notion that a lawyer’s duties to adversaries, the courts, and the profession limit the exercise of the lawyer’s duties to the client runs throughout the rules.  

Zeal does not trump decorum. 

Here is Section 1 Preamble to the Rules of Professional Conduct:

 

“[1] A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.”

Section 2 states that “[a]s advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.”

Section 9 of the Preamble recognizes that the basic principles of the rules “include the lawyer’s obligation zealously to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.”

As did Hoffman, the Preamble to the rules contemplates that lawyers as more than mere zealots for their clients.  Rather, there is a higher duty to the system, the manner in which it operates, and the manner in which lawyers operate within it.

This idea is reflected in the rules as well.  For example, Rule 1.3 requires lawyers to act with reasonable diligence. The final sentence to Comment [1] states that “[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.”

Rule 3.5(d) mandates decorum before a tribunal.  I cited to Comment [4] in a disciplinary case in which I prosecuted a lawyer whose zeal exceeded the bounds of decorum:

“Comment [4] The advocate’s function is to present evidence and argument so that the cause may be decided according to law.  Refraining from abusive or obstreperous conduct is a corollary of the advocate’s right to speak on behalf of litigants. A lawyer may stand firm against abuse by a judge, but should avoid reciprocation; the judge’s default is no justification for similar dereliction by an advocate. An advocate can present the cause, protect the record for subsequent review and preserve integrity by patient firmness no less effectively than by belligerence or theatrics.”

Let me say it again:  a lawyer can advocate for the client “by patient firmness no less effectively than by belligerence of theatrics.”

Finally, maintaining decorum at the expense of zealotry is not a concept limited to the rules.  It’s a decision we’ve made as a profession.

In 1989, the Vermont Bar Association adopted Guidelines for Professional Courtesy.   I encourage you to read them.  Most, if not all, are rooted in today’s topic.  The last is my favorite:

  • “Effective advocacy does not require antagonistic or obnoxious behavior. Lawyers should adhere to the higher standard of conduct which judges, fellow attorneys, clients, and the public may rightfully expect.”

In other words, effective advocacy doesn’t require being a jerk.

181 years later, it remains abundantly clear that zeal does not trump civility. As did Hoffman, perhaps we can resolve never to permit zeal to carry us beyond the limits of sobriety and decorum.

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Related post:  W.I.N. Your 3 Feet of Influence