Five for Friday #82

Welcome to #82 – the John Stallworth edition!

Loyal readers know I’m a  Steeler fan.  What many people don’t know is that my favorite Steeler of all time is #82, John Stallworth.

I used to save Sports Illustrateds.  Not only my own, but issues published before I was even a subscriber.  You see, as a kid, I was a J.I.M.  That stands for “Junior Independent Merchant.”  Odds are some former J.I.M’s are reading this blog.  What did J.I.M’s do? They delivered The Burlington Free Press.   That’s right – I was a paper boy.

I stunk at it.  Actually, I did fine delivering the papers.  Mainly because my dad got up every day at 4:40 AM and made sure I was out doing my thing.  It was the “collecting” that I stunk at.  Yes, back then, J.I.M.’s had to walk their routes in the evening, knock on doors, and collect payment.  Child cruelty!  Anyway, I didn’t collect all that often.  My customers probably didn’t mind, but, essentially, I failed the “merchant” part of J.I.M.  No wonder I’m not in private practice.

Anyway, one of my customers was a guy named Mr. Bittner. I don’t remember much about him except that he lived on Davis Parkway and, one day, let me have all his old Sports Illustrateds.  For years thereafter, my trunk and milk crates full of SI’s made every move I made, including to the condo in which I live today. Alas, I got rid of the magazines a few years ago, but not without keeping a few of my favorite covers.

One of the covers that I kept is this one:

FullSizeRender

That’s John Stallworth making the winning catch in Super Bowl XIV.  Eagle-eyed readers will note that the mailing label bears the name & address of Mr. Bittner.

For those of you who need to see the 82 better, I agree! So, here’s a picture of Stallworth scoring a TD vs. Dallas in Super Bowl XIII:

Stallworth v Cowboys

82!

On to 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.
    • After that intro, I hope someone enters as Stairway to Seven this week
  • 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 represents Steeler.   Lawyer represents Cowboy.   Attorney receives from Lawyer a document that Attorney knows was inadvertently sent.

With respect to Vermont’s Rules of Professional Conduct (not the rules of civil procedure), Attorney’s obligation is to:

  • A.  Notify Lawyer
  • B.  Notify Lawyer and return the document
  • C.  Notify Steeler
  • D.  Notify Steeler and consult with Steeler as to the pros & cons of notifying Lawyer

 

Question 2

We often use the term “IOLTA” to described what the rules call a “pooled interest-bearing trust account.”  That’s right – “IOLTA” does not appear in the rules.  Nevertheless, what does “IOLTA” stand for?

Question 3

Former Client isn’t happy with Attorney.   FC insists to Attorney that Attorney committed malpractice. FC is not represented in connection with the potential malpractice claim.

Attorney makes an offer to settle the potential malpractice claim.  FC accepts.

In Vermont,

  • A.   If FC files a disciplinary complaint, Attorney’s offer is an admission that Attorney violated Rule 1.1 by failing to provide competent representation to FC in the original matter;
  • B.   Attorney has a duty to self-report a potential violation of Rule 1.1;
  • C.   A & B
  • D.  The settlement violates the rules unless Attorney advised FC in writing of the desirablity of seeking independent legal counsel in connection with the potential malpractice claim and gave FC a reasonable opportunity to do so before agreeing to the settlement.

Question 4

Fill in the blank.

Lawyer called me with an inquiry.  She told me that her firm is considering whether to hire two attorneys: one who currently works as a government attorney, and one who is an associate at another firm.  Lawyer had several questions related to potential conflicts of interests that her firm would have to deal with if it hired the 2 attorneys.

We talked for a while.  At one point, I said “well, not to get too technical on you, but ____________ means “the isolation of a lawyer from any participation in a matter through timely imposition of procedures within your firm that are reasonably adequate to protect information that the isolated lawyer is obligated to protect.”

What word fills in the blank?

Question 5

A former super hero took a job at a law firm.  Alas, while not exactly the most super of heros, he’s even less competent as a lawyer.  But he got some great cases, including:

  • defending Scooby Doo & Shaggy on drug charges;
  • representing The Jetsons when they travelled back in time to sue us all for ruining the planet;
  • defending Ricochet Rabbit against charges of wilfull & wanton destruction of property;
  • representing Dr. Quest in the doctor’s legal battle with Race Bannon over custody of Johnny Quest;
  • representing the plastic surgeon sued for botching Droopy’s Botox injections; and,
  • representing Fred Flinstone and Peebles in the federal investigation into their potential mob ties.

Who is our erstwhile, yet often incompetent, super hero turned lawyer?

the-quiz

 

Vermont’s Professional Responsiblity Program

Back to basics today.

The Professional Responsibility Program remains somewhat mysterious to many Vermont lawyers. In a sense, the fact that most attorneys lack first-hand experience with the Program is a good thing.  Nevertheless, since the PRP is funded by attorney licensing fees, it’s good for lawyers to know what the PRP does and the resources that it makes available.

Here’s an overview.

The Vermont Constitution vests the Supreme Court with exclusive “disciplinary authority concerning all judicial officers and attorneys at law in th State.”  Vt. Const., Ch. II, §30.  In its exercise of that authority, the Court has promulgated and adopted (1) Permanent Rules Governing Establishment and Operation of the Professional Responsibility Program; and, (2) Vermont Rules of Professional Conduct.  The former is more commonly known as “A.O. 9,” while the latter are the ethics rules.

A.O. 9 delegates responsibility for, and supervision of, the PRP to the Professional Responsibility Board.  The Board consists of 7 members.  By rule, 3 must be lawyers, 3 must be non-lawyers, and 1 must be a judge. The current members:

The Board meets between 4 and 5 times per year.  The Board does not direct investigations or prosecutions. It plays no role in the adjudication of disciplinary cases.  Each year, the Board issues an Annual Report.  The most recent is HERE.

A.O. 9 creates two positions to administer the PRP’s daily operations: Bar Counsel and Disciplinary Counsel.  I have been bar counsel since 2012.  I was disciplinary counsel from 2000 thru June of 2012.   Now, Sarah Katz is disciplinary counsel.  She started in April 2017. Our offices are in the Costello Courthouse in Burlington.  We have separate and independent roles within the Program.  Rules 3 and 9 of A.O. 9 defines those roles.

Bar Counsel

My responsibilities include:

  1. responding to ethics inquiries;
  2. providing education & outreach on legal ethics;
  3. administering the non-disciplinary dispute resolution program; and
  4. screening ethics complaints filed against attorneys

An ethics inquiry is when someone contacts me for guidance related to the Rules of Professional Conduct.  The key word is “guidance.”  I do not provide legal advice or formal advisory ethics opinions.  Rather, I share my views on the issue, and try to direct the person to the proper rule, decision, or opinion in order to frame the analysis so that the person can make his or her own decision.  Inquiries are confidential and I do not share the fact of the inquiry or its content with anyone, including disciplinary counsel.

Last fiscal year, I received 1106 inquiries.  999 came from attorneys, judges, law students, or law professors. The rest came from non-attorneys.  The topic most often raised in the inquiry process is conflicts of interest.  Additional detail on the inquiries I received will be available in the annual report that the Board will publish this fall.

Education & outreach are self-evident.  Among other things,  I frequently appear at continuing legal education seminars and I use this blog as a form of outreach.

I will discuss the non-disciplinary dispute resolution program later in this post.

Screening complaints.  By rule, bar counsel screens ethics complaint.  A.O. 9, Rule 10. The screening process involves a limited investigation in which I determine whether a complaint (1) should be dismissed; (2) can be resolved without referral to disciplinary counsel; or (3) should be referred to disciplinary counsel for an investigation.

If I dismiss a complaint at screening, the complainant has 30 days to file an appeal with the Chair of the Board.  The Chair either upholds my decision or refers the complaint for an investigation by disciplinary counsel.

Once a complaint is referred for an investigation, my involvement ends.  The respondent has 21 days to file a written response.  Exception: trust account overdrafts. Years ago, the Board decided trust account overdrafts go straight to disciplinary counsel and that a lawyer will have 5 days to respond.

Disciplinary Counsel

As disciplinary counsel, Sarah Katz investigates and litigates all disciplinary and disability matters. Sarah does not have a full-time investigator, but, in certain cases, the Board authorizes her to contract with an investigator.

Once Sarah receives an attorney’s response to a complaint, she investigates.  Upon concluding an investigation, Sarah has 3 options:

  1. dismiss the complaint;
  2. recommend formal disciplinary or disability charges; or,
  3. refer the complaint to the non-disciplinary dispute resolution program.

If Sarah dismisses a complaint, there is no appeal.  By contrast, she cannot unilaterally file formal disciplinary charges against a lawyer.  Rather, if Sarah decides to file formal charges, the rules require her to requesting a hearing panel to review her decision for probable cause.  The request is in the form of an affidavit outlining her investigation and a memorandum arguing why the respondent violated the rules  It is an ex parte process. If probable cause is found, Sarah must file formal charges against the lawyer.

There are 9 standing hearing panels.  By rule, each consists of 2 lawyers and 1 non-lawyer.  Member of the Board are not allowed to sit on hearing panels.

Once charges are filed, the respondent has 20 days to answer, followed by 60 days in which disciplinary counsel and the respondent can conduct discovery. At a hearing, disciplinary counsel must prove a violation of the Rules of Professional Conduct by clear and convincing evidence.

Not every case begins with formal charges filed by disciplinary counsel.  The rules authorize disciplinary counsel and a respondent to file stipulated facts with a hearing panel.  If a case is presented by stipulated facts, the parties can join to recommend a particular sanction, or, can present argument as to sanction.

Hearing panels are not required to accept stipulated facts.  The rules authorize a panel to reject stipulated facts and return a case to disciplinary counsel.  Similarly, if a panel accepts stipulated facts, the rules do not require the panel to accept a joint recommendation as to sanction.  Rather, a panel is free to impose its own sanction.

No matter how a case is presented, a hearing panel must issue a written decision.  If a panel concludes that the evidence or the stipulated facts clearly and convincingly establish a violation of the rules, the panel must impose a sanction.  The potential sanctions:

  • Admonition (does not identify the lawyer or impact the lawyer’s privilege to practice)
  • Reprimand (identifies the lawyer, but doesn’t impact the lawyer’s privilege to practice)
  • Suspension (identifies the lawyer and suspends the lawyer’s privilege to practice)
  • Disbarment (identifies the lawyer and suspends the lawyer’s privilege to practice)

Once a panel issues a decision, disciplinary counsel and the respondent have 30 days to appeal to the Vermont Supreme Court.  Even if neither appeals, the Court may order review on its own motion.  If no appeal is taken and the Court does not order review, a hearing panel decision becomes final and has the full force & effect of a decision of the Supreme Court.  Disciplinary decisions can be found here.

Vermont does not have permanent disbarment.  In Vermont, disbarment is for 5 years.  A disciplinary suspension must be for at least 1 day, but cannot be longer than 3 years.  If a lawyer is suspended for less than 6 months, the lawyer may return to practice when the suspension expires. A lawyer who is disbarred or suspended for 6 months or longer, must petition for reinstatement.

A reinstatement case is one in which the lawyer bears the burden of proving that the lawyer should be allowed to return to practice. Reinstatement cases are heard by hearing panels, with the decision subject to the same appellate process as in a disciplinary prosecution.

Finally, disciplinary counsel has options other than a disciplinary prosecution.  Among them, petitions for interim suspensions and petitions for transfers to disability inactive status.  Those are bit too far into the weeds for this post.

Non-Disciplinary Dispute Resolution

The rules authorize bar & disciplinary counsel to refer complaints to an “assistance panel” or any other dispute resolution program.  The PRP has both informal and formal dispute resolution.

Informal dispute resolution is bar counsel resolving the dispute.  Typically this involves me asking a lawyer to do something simple like call a client or return a client’s file.

Formal dispute resolution is resolution by an “assistance panel.”  By rule, an assistance panel must include 3 people.  Each panel must include at least 1 lawyer, at least 1 non-lawyer, and at least 1 member of the Professional Responsiblity Board.  The program has approximately 30 volunteers who have agreed to serve as assistance panel members.

The AP process is set out in Rule 4 of A.O. 9.  In short, assistance panels work to provide a forum for the non-disciplinary resolution of ethics complaints.  The process is confidential and the resolution cannot and does not result in a sanction being imposed against the lawyer’s license.

While we do not receive many fee complaints, the rules authorize us to refer fee complaints to the VBA’s Committee for the Abitration of Fee Disputes.   In my view, the Vermont Lawyers Assistance Program is a “dispute resolution program” and I have referred matters to the LAPVT. Complaints against judges are referred to the Judicial Conduct Board.

Other

That’s the program in a nutshell.

As I mentioned, I became bar counsel in June 2012.  Prior to June 2012, I was full-time disciplinary counsel and I had a full-time deputy.  The bar counsel position was half-time.

In 2012, recognizing the value in allocating resources to the prevention of misconduct, as opposed to the response to misconduct, the Board and the Court made bar counsel a full-time position and reduced the deputy disciplinary counsel position to part-time.  The position of deputy disciplinary counsel has since been eliminated.

From May 2014 to May 2017, and due to a staff vacancy, I was responsible for administering the daily operations of the Board of Bar Examiners, the Character & Fitness Committee, and the Continuing Legal Education Board.  That included administering the bar exam and the constant flow of applications for admission without examination.  In May 2017, the Court hired Andy Strauss as full-time Licensing Attorney.

With Andy on board, I’ve returned to focusing solely on my duties as defined in Rules 3 and 9 of A.O. 9 .  My goal is to move the program further towards a proactive system of regulation.  Soon, I will post on proactive attorney regulation.  For now, please visit this FAQ issued by the National Organization of Bar Counsel for more on the topic.

Legal Ethics

 

 

Monday Morning Answers #81

Nothing like a little Jay-Z to get people to enter the quiz!

Friday’s questions are HERE.  Today, the answers are below the Honor Roll.

Honor Roll

Answers

Question 1

Not all rules were created equal.  If an attorney’s duties under the rules conflict, which duty is usually viewed as trumping all others?

  • A.   Duty of zealous advocacy to clients
  • B.   Duty of fairness to opposing counsel & opposing parties
  • C.   Duty to provide competent, conflict-free representation
  • D.   Duty of candor to the courts; See generally, V.R.Pr.C. 3.4 Per the Reporter’s Notes, “if the interests of client and tribunal conflict with regard to candor, the interest of the tribunal prevail.”  Also, Comment 11 makes it clear that the duty of candor to the court prevails even in the face of causing “grave consequences” to a client by disclosing the client’s false testimony.

Question 2

Competence.  Conflicts.  Candor.  There’s another word that begins with “C” that is a serious violation of the rules.  However, the word doesn’t appear in any of the rules, notable in its absence from the trust accounting rules and the rule on safekeeping client property.

What’s the word?

Commingling

Question 3

This comes up in approximately 30% of the inquiries I receive. So, about 330 times per year.

Imagine I’m speaking at CLE.  You hear me say “the idea is that we’re not going to put a client to the ‘Hobson’s Choice’ of having to disclose a confidence in order to protect it.”

What general topic am I discussing?

Conflicts/Withdrawal

It is not uncommon for lawyers who encounter former client conflicts to tell me “but Mike, I don’t remember anything about the prior case.”  That may be true, but it’s not the standard under Rule 1.9(a).  As the Vermont Supreme Court has explained, if the new client’s matter is the same as or substantially related to the former client’s matter, the Court will presume that the former client shared confidential information with the attorney.  Why? 

  • “[t]he purpose of the presumption is to avoid “ ‘putting theformer client to the Hobson’s choice of either having to disclose his privileged information in order to disqualify his former attorney or having to refrain from the disqualification motion altogether.’ ” In re Crepault, 167 Vt. 209, 216-17 (citations omitted).

Question 4

Lawyer called me with an inquiry. I listened, then said,

  • “Okay.  Since you and Attorney don’t work in the same firm, it is only allowed if  you  do one of two things.  And, since it sounds like Attorney doesn’t want to do any work on Client’s matter, that means that the first option is out. So, your only option is that you each assume joint responsibility for the representation of Client. Otherwise, the rule prohibits it.“

What is “it” that Lawyer called to discuss, and that Lawyer and Attorney propose to do.

Fee Sharing.   See, this post.

Question 5

As another school year approaches, imagine an aspiring 1L heading to law school.  Law student is cruising down the highway with the tunes blaring.  All of sudden, there are blue lights in the rear view. In the ensuing encounter with police, the law student says to the officer:

  • “Well my glove compartment is locked, so is the trunk in the back
    And I know my rights, so you gon’ need a warrant for that.”

Problem 1:  The situation at hand for our erstwhile law student.

Problem 2:  Future issues with the Character & Fitness committee upon applying for admission?

Problem 3: If law student’s statement is based on advice from a lawyer, the lawyer didn’t exactly provide competent & ethical advice.

Your problem: Name the artist & song that was blaring just before law student was pulled over.

Jay-Z, 99 Problems.

Jay Z

 

Five for Friday #81

Welcome to Five for Friday #81!

Sadly for 81, it’s a deficient number.   A number is deficient if the sum of its divisors is less than the number.  Here, 1+3+9+27 = 40.   40 < 81.   Hence, 81 is a deficient number.But, don’t blame 81.  With few exception, not only are most odd numbers odd, they’re deficient.

Hopefully today’s quiz will remedy any deficiencies you might have in legal ethics!

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

Not all rules were created equal.  If an attorney’s duties under the rules conflict, which duty is usually viewed as trumping all others?

  • A.   Duty of zealous advocacy to clients
  • B.   Duty of fairness to opposing counsel & opposing parties
  • C.   Duty to provide competent, conflict-free representation
  • D.   Duty of candor to the courts

Question 2

Competence.  Conflicts.  Candor.  There’s another word that begins with “C” that is a serious violation of the rules.  However, the word doesn’t appear in any of the rules, notable in its absence from the trust accounting rules and the rule on safekeeping client property.

What’s the word?

Question 3

This comes up in approximately 30% of the inquiries I receive. So, about 330 times per year.

Imagine I’m speaking at CLE.  You hear me say “the idea is that we’re not going to put a client to the ‘Hobson’s Choice’ of having to disclose a confidence in order to protect it.”

What general topic am I discussing?

Question 4

Lawyer called me with an inquiry. I listened, then said,

  • Okay.  Since you and Attorney don’t work in the same firm, it is only allowed if  you  do one of two things.  And, since it sounds like Attorney doesn’t want to do any work on Client’s matter, that means that the first option is out. So, your only option is that you each assume joint responsibility for the representation of Client. Otherwise, the rule prohibits it.

What is “it” that Lawyer called to discuss, and that Lawyer and Attorney propose to do.

Question 5

As another school year approaches, imagine an aspiring 1L heading to law school.  Law student is cruising down the highway with the tunes blaring.  All of sudden, there are blue lights in the rear view. In the ensuing encounter with police, the law student says to the officer:

  • “Well my glove compartment is locked, so is the trunk in the back
    And I know my rights, so you gon’ need a warrant for that.”

Problem 1:  The situation at hand for our erstwhile law student.

Problem 2:  Future issues with the Character & Fitness committee upon applying for admission?

Problem 3: If law student’s statement is based on advice from a lawyer, the lawyer didn’t exactly provide competent & ethical advice.

Your problem: Name the artist & song that was blaring just before law student was pulled over.

the-quiz

 

 

 

Monday Morning Answers

Congrats to my mom! I had a feeling that Question 5 would draw her into the fray . . . and it did.  As a result, her first ever appearance on the Honor Roll.

You see, when I was a kid, my mom was huge fan of the Cincinnati Reds.  So much so that we’d go see Reds when they played in Montreal and would kind of stalk look for the players in the restaurant at the team hotel.  One time, my mom plopped herself down in a booth with Joe Morgan, Sparky Anderson, and Johnny Bench and asked for autographs.  It was either Anderson or Bench who replied “no.”  When my mom asked why – “I don’t give autographs to people who are sitting on my jacket.”

I’ve never seen my mom move so quickly as she did to get off that jacket.

Friday’s quiz is HERE.  The answers follow today’s Honor Roll.

Honor Roll

Answers

Question 1

Good to know for all lawyers, but perhaps particularly relevant to Vermont lawyers who visit Canada .  .  .  what’s at the heart of the legal ethics issue related to border crossings that recently has drawn attention from bar counsel types?

Question 2

Which is most accurate?

The duty to maintain the confidentiality of information relating to the representation of a client:

  • A.   Applies only to information acquired from the client
  • B.   Applies only to a client’s “confidences and secrets” that would prove embarrassing or detrimental if disclosed
  • C.   Does not apply to information that is in a public record
  • D.  Applies to information acquired before the representation began and after it ended.  See, Rule 1.6, Reporter’s Notes, (The rule “imposes a duty of confidentiality concerning information relating to the representation regardless of whether it is acquired before or after the relationship existed.”)

I’ve blogged often on Rule 1.6 and how it applies to “information relating to the representation,”  whatever the source.  In that sense, the is much broader than the privilege. See, Comment [3].

Further, Rule 1.6 refers to “information relating to the representation.” It does not mention “confidences and secrets.”  We dropped that language when we switched from the Code to the Rules in 1999.

Finally, as I’ve often blogged, Rule 1.6 includes several exceptions to the prohibition against the unauthorized disclosure of information relating to the representation.  “It’s public record” is NOT one of them. Indeed, when analyzing whether a lawyer violated Rule 1.9(c) by disclosing information related to the representation of a former client without the former client’s consent,  courts around the country have almost uniformly held that the fact that information is public record does not mean that it’s “generally known.”

Question 3

Which is most accurate?  In Vermont,

  • A.   All conflicts are waivable
  • B    All conflicts are waivable, but must be waived in writing
  • C.   If Lawyer currently represents A, Lawyer may not represent B in a matter adverse to A, even if the two matters are unrelated and both A & B give informed consent.
  • D.   If Lawyer currently represents A, Lawyer is not necessarily precluded from representing B in a matter where B is adverse to A.  See, Rule 1.7Rule 1.7.

Here, A&B are clearly wrong.  As Rule 1.7(b) makes clear, not all conflicts are waivable.

C is wrong because Lawyer may continue if Lawyer complies with Rule 1.7(b).

D is most accurate. It’s actually mentioned in the last sentence to Comment 6, the first sentence to Comment 24, and addressed throughout each.

That being said – THINK TWICE. While A & B might be happy up front, if things go bad later on, they’re going to look for someone to blame and Lawyer makes a convenient target. Also, Rule 1.7(b)(3) is quite clear, as is Rule 1.7(b)(1).  With respect to the latter, what seemed “reasonable” at the time, might not seem so reasonable when examined in the harsh light of a disciplinary investigation.

Question 4

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

  • “here’s the deal: you can’t unilaterally resolve the dispute.  if the dispute involves a client & you, you’re supposed to suggest means for prompt resolution.  if it’s a dispute between your client and a third person, a comment to the rule indicates that you may consider filing an action asking a court to resolve the dispute.”

In that my response referred to the Rules of Professional Conduct, what is the most likely subject of the “dispute” that Attorney called to discuss?

Disputed property, likely funds.  The dispute could be between client & third person, or client and lawyer.  See, Rule 1.15(e), Comment [4].

Question 5

Attorney John Dowd is part of President Trump’s legal team.  Nearly 30 years ago, he authored the famed “Dowd Report;” a report that led to a star pro athlete effectively being “disbarred” from the athlete’s sport.  Ever since, the athlete has sought reinstatement.

Two years ago, Dowd appeared on a radio station and said that, in the 70’s, the athlete had sex with minors.   Last year, the athlete sued Dowd for defamation.  Neither Dowd’s comments nor the lawsuit generated much media coverage until this week . . . when Dowd’s defense team introduced a sworn statement from a woman stating that she had sex with the athlete when she was 14 years old, and he was 34.

Identify the athlete who, now, appears unlikely ever to be reinstated from the “disbarment” that followed the Dowd Report.

Pete Rose.

big red machine

Five for Friday: #80

80!

Miracle

It is indeed a miracle that the quiz has made it this far.

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

Good to know for all lawyers, but perhaps particularly relevant to Vermont lawyers who visit Canada .  .  .  what’s at the heart of the legal ethics issue related to border crossings that recently has drawn attention from bar counsel types?

  • A.    The Disclosure of Confidential Client Information
  • B.    The Unauthorized Practice of Law
  • C.    The Ethics of Advising Clients to Comply w State Laws that Violate Federal Law
  • D.    Candor to Government Officials

Question 2

Which is most accurate?

The duty to maintain the confidentiality of information relating to the representation of a client:

  • A.   Applies only to information acquired from the client
  • B.   Applies only to a client’s “confidences and secrets” that would prove embarrassing or detrimental if disclosed
  • C.   Does not apply to information that is in a public record
  • D.  Applies to information acquired before the representation began and after it ended

Question 3

Which is most accurate?  In Vermont,

  • A.   All conflicts are waivable
  • B    All conflicts are waivable, but must be waived in writing
  • C.   If Lawyer currently represents A, Lawyer may not represent B in a matter adverse to A, even if the two matters are unrelated and both A & B give informed consent.
  • D.   If Lawyer currently represents A, Lawyer is not necessarily precluded from representing B in a matter where B is adverse to A.

Question 4

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

  • “here’s the deal: you can’t unilaterally resolve the dispute.  if the dispute involves a client & you, you’re supposed to suggest means for prompt resolution.  if it’s a dispute between your client and a third person, a comment to the rule indicates that you may consider filing an action asking a court to resolve the dispute.”

In that my response referred to the Rules of Professional Conduct, what is the most likely subject of the “dispute” that Attorney called to discuss?

Question 5

Attorney John Dowd is part of President Trump’s legal team.  Nearly 30 years ago, he authored the famed “Dowd Report;” a report that led to a star pro athlete effectively being “disbarred” from the athlete’s sport.  Ever since, the athlete has sought reinstatement.

Two years ago, Dowd appeared on a radio station and said that, in the 70’s, the athlete had sex with minors.   Last year, the athlete sued Dowd for defamation.  Neither Dowd’s comments nor the lawsuit generated much media coverage until this week . . . when Dowd’s defense team introduced a sworn statement from a woman stating that she had sex with the athlete when she was 14 years old, and he was 34.

Identify the athlete who, now, appears unlikely ever to be reinstated from the “disbarment” that followed the Dowd Report.

the-quiz

 

 

 

 

 

Monday Morning Answers

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

Honor Roll

  • Matt Anderson, Pratt Vreeland Kennelly Martin & White
  • Robert Grundstein
  • Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
  • Michael Kiey
  • Hal Miller, First American
  • Herb Ogden
  • Ian Sullivan, Deputy State’s Attorney, Rutland County

Answers

Question 1

How many hours of pro bono publico legal services per year do Vermont lawyers have a responsibility to provide?

Per Rule 6.1, a lawyer should render at least 50 hours of pro bono publico legal servicers per year.

Question 2

Last Saturday, Attorney volunteered at a free legal clinic that was offered under the auspices of a program sponsored by a non-profit.  While there, Attorney answered questions from Tenant on issues related to Tenant’s eviction.

Attorney works at Firm.  On Monday, Attorney learned that her Law Partner represents Landlord in the eviction of Tenant.

Which is most accurate under Vermont’s rules?

  • A.   Attorney violated the rules, but Law Partner may continue to represent Landlord.
  • B.   Attorney violated the rules and Law Partner must withdraw from representing Landlord.
  • C.  Attorney did not violate the rules and Law Partner may continue to represent Landlord.  See, Rule 6.5(a).  
  • D.  Attorney did not violate the rules, but Law Partner must withdraw from representing Landlord.

The key here is that the conflicts rules are relaxed at clinics/programs sponsored under the auspices of a court or nonprofit.  Essentially, no conflict checks required.  Here, Attorney would’ve been on the hook only if she knew that Tenant was adverse to Law Partner’s client.  Finally, despite Attorney providing pro bono services to Tenant, Law Partner may continue to represent Landlord.  See, Comment 4.

Question 3

Shakedown 1979, cool kids never have the time.

Justine and Billy are in the process of divorcing.   Attorney has represented Justine since the divorce was filed 1 year ago.  Billy has represented himself.

Yesterday, Billy met with Lawyer to discuss potential representation in the divorce.  Lawyer is married to Attorney.  The two do not work in the same firm.

Which is most accurate under Vermont’s Rules of Professional Conduct?

  • A.   Lawyer may represent Billy.
  • B.   Lawyer may represent Billy if Justine agrees to Lawyer’s involvement. .
  • C.   Lawyer may not represent Billy.
  • D.   Ordinarily, to continue with their respective representations, Lawyer needs informed consent from Billy, and Attorney needs informed consent from Justine.  See, Rule 1.7, Comment [11] (“a lawyer related to another lawyer, e.g., as a parent, child, sibling, spouse or civil union partner, ordinarily may not represent a client in a matter where that lawyer is representing another party, unless each gives informed consent.”)

Question 4

Firm advertises as “the premier family law firm in the county.”  New Lawyer joins Firm. New Lawyer has limited experience in family law matters, but is assigned to handle Client’s contentious divorce.

Before New Lawyer joined Firm, Client and Firm had agreed, in writing, to a $10,000 flat fee.  Client paid the entire sum in advance and Firm deposited the funds into the Firm’s operating account.

Two months into the matter, Client learned that Firm’s managing partner plays in a weekly pick-up basketball game with Client’s Spouse.  Firm has screened Managing Partner from any involvement in Client’s matter.

If Client files a complaint against any lawyer in Firm, which issue would disciplinary counsel most likely consider to be a violation?

  • A.  The so-called “screen.”  Vermont’s rules do not allow screening and impute Managing Partner’s conflict to New Lawyer.
  • B.   The fee agreement & deposit of Client’s payment into the operating account
  • C.  Firm’s advertisement.
  • D.  New Lawyer’s inexperience.

A is incorrect. If anything, Managing Partner’s basketball game creates a personal conflict that is not imputed to other lawyers in Firm. See, Rule 1.10(a).

B is incorrect. The agreement complies with Rules1.5(f) & (g) and must not go into trust.

 D is incorrect (at least on the facts).  See Rule 1.1, Comment [2] (“a newly admitted lawyer can be as competent as a practitioner with long experience]; Rule 1.1, Comment [4] (“A lawyer may accept representation where the requisite level of competence can be achieved through reasonable preparation.”)

That leaves C.  Generally, a lawyer may not advertise in such a way as to make unsubstantiated comparisons to other lawyers.  The phrase “the premier family law firm in the county” violates Rule 7.1.  See, PRB Decision 85 (lawyer admonished for advertising as county’s “premier criminal defense firm.”)

Question 5

Sydney Carton was a brilliant lawyer who struggled with alcohol & depression.  His most famous client was Darnay.

While not explicitly clear from the historical record, I’m pretty sure that Darnay filed a disciplinary complaint against Carton.   In it, he alleged that Carton failed to provide him with competent & diligent representation in a criminal trial that resulted in a death sentence for Darnay.

The complaint became moot when Carton, who bore an uncanny resemblance to his client, switched places with Darnay just before the execution.  Carton’s final words before the guillotine fell:

  • “It is a far, far better thing that I do, than I have ever done; it is a far, far better rest that I go to than I have ever known.”

Name the book.

A Tale of Two Cities, by Charles Dickens.   

Bonus: name the lawyer who “mentored” Carton.  Barrister Stryver.

On a serious note, if you know a lawyer who, like Carton, is dealing with substance abuse or mental health issues, please read this.

Tale of Two Cities

Five for Friday #79

Welcome to Five for Friday #79!

So, 79’s got a lot going on.  I’ll always associate 79 with the iconic clash between Magic Johnson & Larry Bird.  Before taking their star turns in the Lakers-Celtics rivalry, the two first squared off in the championship game of the 1979 NCAA Basketball Tournament. Whether you love or hate March Madness pools, as Michael Wilbon explains, you probably have the 79 title game to thank or to blame..

The game was played on March 26, 1979.  I was just a kid, but I remember exactly where I was when I watched it:  Washington, D.C.  What was I doing there? My parents drove my brother & I to witness history!

No, not the game.  The game was played in Salt Lake City.

However, earlier that day in D.C., Menachem Begin & Anwar Sadat signed the Israel-Egypt Peace Treaty at a White House ceremony hosted by President Carter. Along with our parents, my brother and I watched from Lafayette Square.

I’m fairly certain that the worst seat for the Bird-Magic game was infinitely better than our vantage point for the signing ceremony.  But we were there!  For those of you who know my mom, ask her about the hotel she booked us for that trip.  Don’t stand too close when you ask.

Finally,79 is a Sexy Prime.

Get your heads out of the gutter! This is a family blog!

Sexy Primes are prime numbers that differ from each other by 6.  And 79 ain’t just any ol’ sexy prime.  Along with 67 & 73, 79 is a Sexy Prime Triplet.

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
  • Please use e-mail, not the “comment” feature
  • I’ll post the answers & Honor Roll on Monday
  • Please consider sharing the quiz with friends & colleagues
  • Hashtag it on social media as #fiveforfriday

Question 1

How many hours of pro bono publico legal services per year do Vermont lawyers have a responsibility to provide?

Question 2

Last Saturday, Attorney volunteered at a free legal clinic that was offered under the auspices of a program sponsored by a non-profit.  While there, Attorney answered questions from Tenant on issues related to Tenant’s eviction.

Attorney works at Firm.  On Monday, Attorney learned that her Law Partner represents Landlord in the eviction of Tenant.

Which is most accurate under Vermont’s rules?

  • A.   Attorney violated the rules, but Law Partner may continue to represent Landlord.
  • B.   Attorney violated the rules and Law Partner must withdraw from representing Landlord.
  • C.  Attorney did not violate the rules and Law Partner may continue to represent Landlord.
  • D.  Attorney did not violate the rules, but Law Partner must withdraw from representing Landlord.

Question 3

Shakedown 1979, cool kids never have the time.

Justine and Billy are in the process of divorcing.   Attorney has represented Justine since the divorce was filed 1 year ago.  Billy has represented himself.

Yesterday, Billy met with Lawyer to discuss potential representation in the divorce.  Lawyer is married to Attorney.  The two do not work in the same firm.

Which is most accurate under Vermont’s Rules of Professional Conduct?

  • A.   Lawyer may represent Billy.
  • B.   Lawyer may represent Billy if Justine agrees to Lawyer’s involvement. .
  • C.   Lawyer may not represent Billy.
  • D.   Ordinarily, to continue with their respective representations, Lawyer needs informed consent from Billy, and Attorney needs informed consent from Justine.

Question 4

Firm advertises as “the premier family law firm in the county.”  New Lawyer joins Firm. New Lawyer has limited experience in family law matters, but is assigned to handle Client’s contentious divorce.

Before New Lawyer joined Firm, Client and Firm had agreed, in writing, to a $10,000 flat fee.  Client paid the entire sum in advance and Firm deposited the funds into the Firm’s operating account.

Two months into the matter, Client learned that Firm’s managing partner plays in a weekly pick-up basketball game with Client’s Spouse.  Firm has screened Managing Partner from any involvement in Client’s matter.

If Client files a complaint against any lawyer in Firm, which issue would disciplinary counsel most likely consider to be a violation?

  • A.  The so-called “screen.”  Vermont’s rules do not allow screening and impute Managing Partner’s conflict to New Lawyer.
  • B.   The fee agreement & deposit of Client’s payment into the operating account
  • C.  Firm’s advertisement.
  • D.  New Lawyer’s inexperience.

Question 5

Sydney Carton was a brilliant lawyer who struggled with alcohol & depression.  His most famous client was Darnay.

While not explicitly clear from the historical record, I’m pretty sure that Darnay filed a disciplinary complaint against Carton.   In it, he alleged that Carton failed to provide him with competent & diligent representation in a criminal trial that resulted in a death sentence for Darnay.

The complaint became moot when Carton, who bore an uncanny resemblance to his client, switched places with Darnay just before the execution.  Carton’s final words before the guillotine fell:

  • “It is a far, far better thing that I do, than I have ever done; it is a far, far better rest that I go to than I have ever known.”

Name the book.

Bonus: name the lawyer who “mentored” Carton.

On a serious note, if you know a lawyer who, like Carton, is dealing with substance abuse or mental health issues, please read this.

the-quiz

 

Monday Morning Answers – #78

Friday’s quiz is here.  Today, the answers follow the Honor Roll.

And today’s Honor Roll includes something special.  For quite some time, Laura Gorsky regularly appeared on the Honor Roll while studying & working in the 4-year Law Office Study program.  She was recently admitted to the bar and, today, makes her first Honor Roll appearance as a full-fledged attorney.  Congratulations Laura!

Honor Roll

  • Carolyn Browne Anderson, Green Mountain Power; Vermont PRB
  • Matt Anderson, Pratt Vreeland Kennelly Martin & White
  • Alberto Bernabe, Professor, John Marshall School of Law
  • Lindsay Cabreros, First American
  • Beth DeBernardi, ALJ, Department of Labor
  • Laura Gorsky, Esq., Law Office of David Sunshine
  • Robert Grundstein
  • Anthony Iarrapino, Esq
  • Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
  • Patrick Kennedy, Dealer.Com
  • Tom Little, Esq.
  • Jeffrey Messina, Bergeron Paradis & Fitzpatrick
  • Hal Miller, First American
  • Jim Runcie, Runcie & Ouimette

Answers

Question 1

By rule, a lawyer has a conflict if there is a significant risk that the representation of a client will be limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.  Rule 1.7

Your mission, should you choose to accept it, fill in at least ONE of the blanks. (hint: each blank is more than 1 word)

Question 2

Remaining on conflicts for a moment, a Comment indicates that ” ________  ___________ requires that each affected client be aware of the relevant circumstances of the material and reasonably forseeable ways that the conflict could have adverse effects on the interests of that client.”

Which fills in the blank verbatim?

  • A.    Dual Representation
  • B.     Informed Consent; Rule 1.7, Comment [18]
  • C.    Continued Representation
  • D.   Conflict Waiver

Question 3

Which type of fee agreement is different from the others?

  • A.   Contingent fee agreement
  • B.   An agreement to a non-refundable fee, paid in advance, that a lawyer may treat as the lawyer’s property before any legal services are rendered
  • C.   An agreement by lawyers in different firms to share the fee charged to a single client
  • D.   A standard hourly fee agreement

By rule, each of the others must be in writing.  The terms of a basic fee agreement must be communicated to a client, “preferably in writing,” but there is no requirement that the agreement be reduced to writing.  To avoid misunderstandings down the road, reducing a fee agreement to writing is best practice, even absent a rule requiring you to do so.

Question 4

Attorney called me with an inquiry.  She represents Defendant in a civil case and had a question related to some of the potential witnesses for Defendant.  I listened, then responded:  “by rule, you can make the request only if (1) the witness is a relative, employee, or agent of Defendant; or (2) if you reasonably believe that the potential witness’s interests won’t be adversely affected by agreeing to your request.”

What proposed course of conduct by Attorney do “make the request” and “your request” refer to?

Requesting a person other than a client to refrain from voluntarily giving relevant information to another party.  Rule 3.4(f); See, PRB Decision 78

Question 5

Oscar “Zeta” Acosta was a real-life attorney who practiced law in California.  In 1971, he and a famous writer took two trips to Las Vegas. On the first, the two attended the Mint 400, an off-road race that Sports Illustrated had dispatched the writer to cover.  A month later, they returned to Vegas, with the writer having been assigned by Rolling Stone to cover the National District Attorneys Association’s Conference on Narcotics and Dangerous Drugs.

The writer’s trips to Vegas with Attorney Acosta inspired a book.  In the book, a lawyer whose character is based on Acosta engages in behavior that, at the very least, would result in a referral to the Lawyers Assistance Program, if not a disciplinary prosecution.

For 1 point each, who was the writer with whom Attorney Acosta travelled to Las Vegas? And, what was the name of the character who was based on Acosta?

The writer:  Hunter S. Thompson.  The trips inspired Fear & Loathing In Las Vegas.  Acosta served as the basis for the character Dr. Gonzo.

Fear and Loathing

Monday Morning Answers: Declaration(s) of Independence Edition

So, I trekked to Lake Placid yesterday.  There’s a great running loop around Mirror Lake.  If you’re in LP, I recommend the Lake Placid Pub & Brewery.  It’s a few steps off the main drag, so it’s a tad less crowded.  Great views of Mirror Lake and, in other direction, both Olympic rinks (1932 & 1980).

Happy 4th!

Friday’s questions are HERE. Spoiler alert – the answers follow today’s Honor Roll.

HONOR ROLL

 

ANSWERS

Question 1

Name the lawyer who is the only U.S. President to have been born on July 4.

I understand that you have 45 choices.  Most readers of this blog, however, should be able to narrow it down to a 50/50.

Vermont’s Own Calvin “Silent Cal” Coolidge.

Question 2

Did I say “ethics free?”  Oops.  It was mere puffery.

Rule 8.4(d) prohibits lawyers from engaging in “conduct that is prejudicial to the administration of justice.”

In July 1776, a relatively well-known document was approved.  It included a section that is often referred to as “the indictment.”  In the document, who was indicted for, among other things, “obstruct[ing] the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers?”

The Declaration of Independence Indicted King George III

Question 3

In January 1777, a group of people declared independence from the various jurisdictions laying claim to their land, forever declaring “a free and independent jurisdiction . . . hereafter to be called, known and distinguished by the name of New-Connecticut.”

What’s it called now?

VERMONT

Question 4

The first public reading of the Declaration of Independence was on July 8, 1776.  The reading took place at what, at the time, was the Pennsylvania State House.

What was used to summon the public to the reading?

Bells, including the Liberty Bell

Question 5

Seinfeld is never far from this blog.  As Independence Day approaches, let us never forget that dark moment in time when Independent George was under threat.

In the dialogue below, what’s the word that fills in the blanks? Hint: the same word goes in each blank.

The answer is RELATIONSHIP George, and the scene is HERE.

  • George:  “You have no idea of the magnitude of this thing.  If she is allowed to infiltrate this world then George Costanza as you know him ceases to exist  You see, right now I have RELATIONSHIP George.  But there is also Independent George.  That’s the George you know, the George you grew up with…..Movie George, Coffee Shop George, Liar George, Bawdy George.”
  • Jerry: “I love that George.”
  • George: “Me too! And he’s dying.  If RELATIONSHIP George walks thru this door, he will kill Independent George.  A George divided against itself cannot stand!”

 

Declaration