Monday Morning Answers: #127

Welcome to Monday.  It’s August 13th.

Friday’s Sinatra-themed questions are here.  The answers follow today’s honor roll.

Honor Roll

  • Evan BarquistMontroll, Backus & Oettinger
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, John Marshall Law School
  • William V. Cristman, Jr.
  • Andrew Delaney, Martin & Associates
  • Bob Grundstein, Esq.
  • Anthony IarrapinoWilschek & Iarrapino
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy, JB Kennedy Associates, My Mom
  • Tom LittleLittle & Cicchetti
  • Kevin LumpkinSheehey Furlong & Behm
  • Hal Miller, First American
  • Lon McClintockMcClintock Law Offices
  • Jeff MessinaBergeron Paradis Fitzpatrick
  • Herb Ogden
  • Jody Racht, Assistant Attorney General
  • Jay Spitzen, Esq.

Answers

Question 1

Rule 1.2 makes it clear that the client controls the objectives of a representation, with the means by which those objectives are pursued left to the lawyer in consultation with the client. In addition, I often remind lawyers to set & manage client expectations, especially with clients who have unreasonably High Hopes.

With these thoughts in mind, I’ve used Sinatra to caution lawyers against taking the client who:

  • A.   Instructs the lawyer “thanks, but we’ll do it my way.”
  • B.   Calls, emails, or texts every day saying “call me!”
  • C.   Has a long list of ex-lawyers
  • D.  Can’t get no satisfaction

I warn about each of the 4.  But the key word in the question was “Sinatra.” As he sang, “I did it my way.”  B is the Blondie client, C is the Taylor Swift client (Blank Space), and D is the Rolling Stones client.

Question 2

Love and Marriage.

True or false.

The rules specifically prohibit an attorney from representing a client in a matter in which a person whose interests are adverse to the client’s is represented by the attorney’s spouse.

False.  But, see Comment 11 to Rule 1.7“When lawyers representing different clients in the same matter or in substantially related matters are closely related by blood, marriage, or civil union, there may be a significant risk that client confidences will be revealed and that the lawyer’s family relationship will interfere with boy loyalty and independent judgment. As a result each client is entitled to know of the existence and implications of the relationship between the lawyers before the lawyer agrees to undertake the representation.  Thus, 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 client gives informed consent.”

Question 3

Lawyer represents Organization.   Organization is governed by a board.

Do the rules allow Lawyer to represent Chairman of the Board individually in a matter in which Lawyer also represents Organization?

  • A.  No.
  • B.   Yes.
  • C.   Yes, subject to the normal conflicts rules.  See, Rule 1.13(g).
  • D.   Trick question.  By representing Organization, Lawyer automatically has an attorney-client relationship with the Chairman of the Board in his individual capacity.

Question 4

Lawyer meets with Client.  Client isn’t focused on the subject matter of the representation and, instead, repeatedly tells Lawyer things like “Come Fly With Me,” and “Fly Me to the Moon!”  Lawyer suspects that Client might suffer from a diminished capacity.

Under the rules, Lawyer’s initial duty is to:

  • A.   Withdraw
  • B.   Withdraw, unless Client agrees to a voluntary guardianship
  • C.   File for an involuntary guardianship
  • D.   As far as reasonably possible, maintain a normal client-lawyer relationship with client.  See, Rule 1.14(a).

Question 5

Sinatra won an Academy Award for Best Supporting Actor for a movie that was released in 1953.  He played a soldier who befriended a former boxer.  The former boxer resisted a superior’s efforts to get him to join the regiment’s boxing team.

According to Hollywood legend, the manner in which Sinatra obtained the role wouldn’t exactly comply with Rules 3.4 (fairness to opposing party & counsel) and 4.4 (respect for the rights of third persons). Indeed, legend has it that the famed “horse head in the bed” scene in The Godfatherrefers to the methods by which Sinatra obtained the role.

Name the movie, released in 1953, for which Sinatra won the Oscar for Best Supporting Actor.

FROM HERE TO ETERNITY

See the source image

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Five for Friday #127

Welcome to #127!

So, every Thursday during the summer, Maple Tree Place has a concert on the green.  Last night’s band was I’ll Be Frank.  It’s a Frank Sinatra cover band.  I took my mom.

As an aside, shouldn’t they stop giving me the Son of the Year Award? It’s like a lot in row now.  Maybe just name it after me and let other people win?  Jus’ sayin’.

Anyhow, the concert was much more entertaining than I expected.  The setting is great.  The green is big enough for everyone to be comfortable, but small enough to see and hear the band.  Not only that, McGillicudy’s is but a stone’s throw from the stage, which enabled me to enjoy a frosty one as I waited at the bar for the Maple Barbecue wings that I ordered and brought back to my mom at our lawn chairs.  Finally, despite Sinatra being older than my mother’s mother, I actually recognized a bunch of the songs.

The show was great.  And…speaking of my mother’s mother, so were some of the folks dancing in the audience.  I spotted more than one bobby soxer who likely went to a few Tommy Dorsey shows back in the day, but who could still cut a rug!

All in all, a great summer evening.

What’s this got to do with 127?   Sinatra had 127 Top 20 singles on the Billboard charts.

127!!

Ethical Grounds favorite Taylor Swift has only had 129 songs . . . total!

(If you’re interested, Rolling Stone ranked them here.  Funny, I was just thinking the other day that Delicate might be her best.  Per RS, it’s #3.)

127 top 20 singles.  I’d say Ol’ Blue Eyes complied with the musical equivalent of the duty of competence!

Onto the quiz!

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

Question 1

Rule 1.2 makes it clear that the client controls the objectives of a representation, with the means by which those objectives are pursued left to the lawyer in consultation with the client. In addition, I often remind lawyers to set & manage client expectations, especially with clients who have unreasonably High Hopes.

With these thoughts in mind, I’ve used Sinatra to caution lawyers against taking the client who:

  • A.   Instructs the lawyer “thanks, but we’ll do it my way.”
  • B.   Calls, emails, or texts every day saying “call me!”
  • C.   Has a long list of ex-lawyers
  • D.  Can’t get no satisfaction

Question 2

Love and Marriage.

True or false.

The rules specifically prohibit an attorney from representing a client in a matter in which a person whose interests are adverse to the client’s is represented by the attorney’s spouse.

Question 3

Lawyer represents Organization.   Organization is governed by a board.

Do the rules allow Lawyer to represent Chairman of the Board individually in a matter in which Lawyer also represents Organization?

  • A.  No.
  • B.   Yes.
  • C.   Yes, subject to the normal conflicts rules
  • D.   Trick question.  By representing Organization, Lawyer automatically has an attorney-client relationship with the Chairman of the Board in his individual capacity.

Question 4

Lawyer meets with Client.  Client isn’t focused on the subject matter of the representation and, instead, repeatedly tells Lawyer things like “Come Fly With Me,” and “Fly Me to the Moon!”  Lawyer suspects that Client might suffer from a diminished capacity.

Under the rules, Lawyer’s initial duty is to:

  • A.   Withdraw
  • B.   Withdraw, unless Client agrees to a voluntary guardianship
  • C.   File for an involuntary guardianship
  • D.   As far as reasonably possible, maintain a normal client-lawyer relationship with client.

Question 5

Sinatra won an Academy Award for Best Supporting Actor for a movie that was released in 1953.  He played a soldier who befriended a former boxer.  The former boxer resisted a superior’s efforts to get him to join the regiment’s boxing team.

According to Hollywood legend, the manner in which Sinatra obtained the role wouldn’t exactly comply with Rules 3.4 (fairness to opposing party & counsel) and 4.4 (respect for the rights of third persons). Indeed, legend has it that the famed “horse head in the bed” scene in The Godfather refers to the methods by which Sinatra obtained the role.

Name the movie, released in 1953, for which Sinatra won the Oscar for Best Supporting Actor.

See the source image

 

Of Counsel – an intro

I’m going to give you a choice.  Your mission, should you choose to accept it, is to answer ONE of the following two questions.

  1. Name the book whose opening line is: “A few miles south of Soledad, the Salinas River drops in close to the hill-side bank and runs deep and green.”
  2. Tell me the definition of “of counsel.”

My guess is that more of you might know “Of Mice and Men” than the answer to number 2.  Don’t worry.  You’re not alone.

In my experience, “of counsel” is one of those odd things that we know, but might struggle to explain to someone else.  And not only do we “know” it, the inquiries that I receive suggest that, at some level, lawyers understand that the “of counsel” relationship might pose its own peculiar set of ethical issues.  Indeed it does.

So, what rules apply to “of counsel?”  Regular readers know the answer to this:

ALL OF THEM!!!!

A lawyer working “of counsel” must be competent, diligent, and honest.  The lawyer must safeguard client property.  You get the point.

Now, what rules might be particularly thorny?  In my mind, there are 3 areas in which to be particularly careful:

  1.  Communications Concerning a Lawyer’s Services
  2. Fee Sharing
  3. Conflicts

I don’t want this discussion to ge too long or too technical.  So, I’m going to an employ a blogger’s trick and break this up into 3 posts.  Today’s will focus on the nature of the relationship and the rule on communications concerning a lawyer’s services.

So, what is “of counsel.”  I like the definitions provided by:

Each makes clear that the “of counsel” relationship is something different from what many of us might recall as a status provided to a lawyer who semi-retires after many years with a firm.  As the Illinois State Bar notes in Opinion 16-04:

  • “The ‘of counsel’ relationship has as its core characteristic a close, regular, and personal relationship that is more than a mere forwarder or receiver of legal business, more than an occassional consultant relationship, and more than a relationship for the purposes of one case.”

This is important.  Rule 7.1 prohibits a lawyer from making false or misleading communication’s about the lawyer’s services . Rule 7.5 prohibits a lawyer from using letterhead or other designation that violates Rule 7.1.  So, to list a lawyer as “of counsel” to a firm, the lawyer and firm must have:

  • “a close, regular and personal relationship that is more than a mere forwarder or receive of legal business, more than an occasional consultant relationship, and more than a relationship for the purposes of one case.”

In other words, absent that close, regular and personal relationship, it’s likely misleading to designate an attorney as “of counsel.”

ABA Opinion 90-357 identifies four situations in which “of counsel” is appropriate:

  1. A part-time practitioner who practices on a different basis than the firm’s partners, shareholders, and associates.
  2. A retired partner who no longer actively practices, but who remains available for consultation on firm matters.
  3. A lateral transfer who is hired with the expectation of becoming a partner in a short period of time.  That is, a lawyer who is usually too experienced to start anew as an associate.
  4. A lawyer who is neither associate nor partner, but who has some sort of “tenure,” although one who likely will never become a partner.

The same opinion identifies situations in which “of counsel” is not appropriate:

  • a relationship for one case;
  • a relationship where the lawyer is merely forwards clients to the firm, or receives clients forwarded by the firm;
  • a relationship that involves only occasional collaborative efforts between a lawyer and firm that otherwise do not have any interaction or involvement; and,
  • when the lawyer is an “oustide consultant.”

In closing, to comply with Rules 7.1 and 7.5, the “of counsel” relationship should be one in which lawyer and firm have a close, regular, and personal relationship.  As I’ll get into in the posts to follow, yes, a lawyer who is “of counsel” may ethically maintain his or her own practice independent of the firm.  However, that’s where issues such as fee sharing and conflicts can get thorny.

Maybe every lawyer in the whole damned world is now scared of the “of counsel” designation.  Don’t worry.  In the next few posts, you got me to look after you.

Stay tuned.

Of Mice and Men

 

 

 

 

 

Monday Morning Answers

How Sweep it is!

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

Honor Roll

 

Answers

Question 1

Per the rules, the duty of diligence likely requires a practitioner in small firms to have which of the following?

  • A.    malpractice insurance
  • B.    a succession plan.   See, Rule 1.3, Comment [5]
  • C.    a cloud-based file management system
  • D.    an electronic trust accounting system

Question 2

True or false.

A Vermont lawyer violates the Rules of Professional Conduct by providing a client with advice on the scope & meaning of Vermont’s marijuana laws – for example, by advising a client in connection with the client’s operation of a medical marijuana dispensary.

FALSE – See, Rule 1.2(d), Comment 14

Question 3

Which doesn’t belong with the others?

  • A.   the client intends to provide false testimony
  • B.    the testimony relates to an uncontested issue
  • C.    the testimony relates to the nature and value of legal services rendered in a case
  • D.   Trick question.  Each is in the same rule.

A is in Rule 3.3, the rule that governs candor to a tribunal.   B&C are exceptions to Rule 3.7, the rule that prohibits a lawyer from serving as an advocate at a trial in which the lawyer is likely to be a necessary witness.

Question 4

Lawyer called me with an inquiry. I listened, then said “the duty to deliver it kicked in as soon as the representation ended.  Otherwise, there’s no set time period to keep it.” The lawyer likely called me to discuss:

  • A.   Conflicts of Interest
  • B.   Trust accounting
  • C.   File Retention.  See, Rule 1.16(d).  Upon termination of a representation, a lawyer shall surrender papers and property to which the client is entitled.
  • D.  Noisy Withdrawal

Question 5

Dragons remind me of Game of Thrones.

Last year, a New York lawyer was sued for allegedly helping a client to commit a fraudulent transfer of assets.  The lawyer responded by filing a motion in which he sought a particular type of trial.  What type?

TRIAL BY COMBAT.  The story is here.

Five for Friday #126

Welcome to #126!

So, 126 . . . no, that’s not how many runs the Red Sox scored against the Yankees last night, it only seems that way! Go Sox!

Back to the business at hand.  Here’s my pick for this weekend:  the Lake Champlain Dragon Boat Festival. Not only is it a fantastic event, but it gives me an opportunity to talk about two of my favorite topics: the duty of competence, and, lawyers pursuing wellness by doing fascinating non-lawyerly things.

Andy Strauss is Vermont’s Licensing Attorney.  He’s also a member of Dragonheart Vermont, the organization that puts on the Dragon Boat Festival. Last month, Andy and many of his teammates competed in the International Dragon Boat Federation’s Club Crew World Championships in Hungary.

The World Championships!!! I’d say that’s competent! And an example of a well lawyer!  Congrats Andy!

Onto the quiz!

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

Question 1

Per the rules, the duty of diligence likely requires a practitioner in small firms to have which of the following?

  • A.    malpractice insurance
  • B.    a succession plan
  • C.    a cloud-based file management system
  • D.    an electronic trust accounting system

Question 2

True or false.

A Vermont lawyer violates the Rules of Professional Conduct by providing a client with advice on the scope & meaning of Vermont’s marijuana laws – for example, by advising a client in connection with the client’s operation of a medical marijuana dispensary.

Question 3

Which doesn’t belong with the others?

  • A.   the client intends to provide false testimony
  • B.    the testimony relates to an uncontested issue
  • C.    the testimony relates to the nature and value of legal services rendered in a case
  • D.   Trick question.  Each is in the same rule.

Question 4

Lawyer called me with an inquiry. I listened, then said “the duty to deliver it kicked in as soon as the representation ended.  Otherwise, there’s no set time period to keep it.” The lawyer likely called me to discuss:

  • A.   Conflicts of Interest
  • B.   Trust accounting
  • C.   File Retention
  • D.  Noisy Withdrawal

Question 5

Dragons remind me of Game of Thrones.

Last year, a New York lawyer was sued for allegedly helping a client to commit a fraudulent transfer of assets.  The lawyer responded by filing a motion in which he sought a particular type of tria.  What type?

 

 

 

 

Pro Bono? There’s an App for that!

Well, not really an app.

So, in 2016, the ABA released a Report on the Future of Legal Services in the United StatesI don’t think the report received enough attention, but that’s a blog for another day.

Today’s point is limited to a theme expressed in the report.  It’s a theme that the ABA’s Ellyn Rosen stressed in a seminar that I attended two days ago: technology can help to close the access gap.

Ellyn cited to an eye-opening finding in the report. It’s on page 14, and quotes this 2014 article by Gillian Hadfield.

  • “Even with the profession’s deep commitment to pro bono and further innovations, pro bono work alone will not resolve the tremendous need for civil legal representation. Data shows that annually ‘U.S. lawyers would have to increase their pro bono efforts … to over nine hundred hours each to provide some measure of assistance to all households with legal needs.’ ”

Here’s one way to help: Vermont Free Legal Answers.  Think of it as pro bono without ever having to leave your desk.  All you have to do is sign up, then pick & choose the questions you want to answer.  It’s that simple.  If you’re reading this and are licensed in a jurisdiction other than Vermont, odds are that your state has it too. Over 40 states have adopted the ABA’s free legal answers model.

Am I asking you to increase your hours to 900? I am not.  I’m simply reminding you that every little bit helps. Think of the starfish story:

One day a man was walking along the beach when he noticed
a boy picking something up and gently throwing it into the ocean.

Approaching the boy, he asked, “What are you doing?”

The youth replied, “Throwing starfish back into the ocean.
The surf is up and the tide is going out.  If I don’t throw them back, they’ll die.”

“Son, the man said, “don’t you realize there are miles and miles of beach and hundreds of starfish?
You can’t make a difference!”

After listening politely, the boy bent down, picked up another starfish,
and threw it back into the surf.  Then, smiling at the man, he said
“I made a difference for that one.”

When it comes to unmet legal needs and pro bono, you too can make a difference for that one.

See the source image

Hot Topics in Legal Ethics

I’m in Chicago at the Annual Meeting of the National Organization of Bar Counsel.

First things first: no, Cook County is not one of Vermont’s 14 counties.  However, very early this morning, I knocked out 11.5 miles in Cook County.  I ran a beautiful route from my hotel to Wrigley Field and back.  Most of the route was on the Lakeshore Trail along Lake Michigan. One lap around Wrigley made me feel very, very guilty . . . the setting is much nicer than Fenway.

Anyhow, back to business. One of tomorrow’s seminars is “Hot Cases in Ethics Opinions.” The material is posted online (NOBC membership required, so I’m not linking to it.)  Anyhow, from the material, it looks like the seminar will address 6 advisory opinions. The first 4 are:

  • Nebraska Ethics Advisory Opinion for Lawyers 17-03 (Cryptocurrency)
  • ABA Formal Opinion 477 (Securing Communication of Protected Client Information)
  • Illinois State Bar Professional Conduct Advisory Opinion 18-01 (Web Bugs)
  • ABA Formal Opinion 479 (The “generally known” exception to Rule 1.6)

Guess what? If you’re a regular reader of this blog, it’s like you’ve already attended tomorrow’s seminar!  That’s right, I’ve written about each of the first 4 advisory opinions!

So, what about the two others?

#5 in the material is a recent report from the Attorney Registration and Discipline Commission of the Supreme Court of Illinois. In the report, the ARDC seeks comment on its recommendation that Illinois relax its rules against attorney participation in for-profit referral services.  Robert Ambrogi blogged about the report for Above the Law.

I’ve not yet followed suit.  Why? Well, the report is 124 pages long.  Further, about a month after the ARDC issued the report, the company that recently acquired Avvo announced that it would discontinue Avvo Legal Services.  The ABA Journal reported on the announcement here.

I’ve yet to fully flesh out a blog that will cover both the ARDC report and the news that Avvo’s fixed-fee legal services plan has been discontinued. That being said: I’ve blogged a topic related to each: Fixed-Fee Legal Services: A Conversation Starter

Finally, #6 in the material is ABA Formal Opinion 472: Communication with Person Receiving Limited-Scope Legal Services. I’ve not yet blogged on the opinion. But I’ve discussed it at many seminars!  Also, the material suggests that discussion of the opinion will include a discussion the ethics of ghostwriting. As you know, I ain’t afraid of no ghost! I’ve tackled the topic a few times, most recently in Ghostwriting as Access.

Want to know what’s hot in legal ethics? Follow this blog!!

Ethics

 

 

Monday Morning Answers

Welcome to Monday!

Friday’s questions are here.  Windsor Count was great!  Ran 11.2 miles, mainly on the old River Road between Woodstock and Taftsville.   Assistant Attorney General Rob McDougall tipped me off to the route.   I had the pleasure of bumping into two Vermont attorneys on the trek:  Attorney Bonnie Badgewick was also out running on the River Road, and later I saw Deputy State’s Attorney Daron Raleigh at the Harpoon BBQ fest.

IMG_1654

Honor Roll

  • Matthew AndersonPratt Vreeland Kennelly & White
  • Erin GilmoreRyan Smith Carbine
  • Robert Grundstein
  • Tammy Heffernan
  • Anthony IarrapinoWilscheck & Iarrapino
  • Glenn Jarrett, Jarrett & Luitjens
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Kevin LumpkinSheehey Furlong & Behm
  • Lon McClintockMcClintock Law Offices
  • Jack McCullough, Project Director, Vermont Mental Health Law Project
  • Jeff MessinaBergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Herb Ogden
  • Jim Runcie, Ouimette & Runcie
  • Kane Smart, ANR, Office of General Counsel, Enforcement & Litigation

Answers

Question 1

Lawyer called me with an inquiry.  I listened, then said “per the definition, it means that the person agrees to a proposed course of conduct after you communicate adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”

The definition of what?  (hint: 2 words)

INFORMED CONSENT – See, Rule 1.0(e)

Question 2

No matter the type of case, a rule requires a lawyer to abide by a client’s decision whether:

  • A.  to settle a case; See, Rule 1.2(a)
  • B.  to testify
  • C.  to hold funds in an account that will generate interest for the client
  • D.  All of the above

Rule 3.3(a)(3) provides guidance as to when a lawyer may refuse to present certain testimony in a civil case.

As for whether to deposit funds into an IOLTA or into an account that will generate interest for the client, the choice is not the client’s.  See, Rule 1.15B(a)(1).

Question 3

In the context of a particular rule, which is different from the others?

Lawyer’s disclosure of:

  • A.  Client’s intent to commit suicide.
  • B.  information relating to the representation of Client in order to secure legal advice about Lawyer’s compliance with the rules of professional conduct.
  • C.  information relating to the representation of Client to establish a defense to a criminal charge or civil claim made against Lawyer and based upon conduct in which Client was involved.
  • D.  Client’s intent to commit a criminal act that Lawyer reasonably believes will result in the death of, or substantial bodily harm to, someone other than Client.

This is straight from Vermont’s version of Rule 1.6.  In Vermont, scenario D is a mandatory disclosure.  A, B, C are permissive.   D’s key distinction from A is that the harm will inure to someone other than the actor.

Question 4

Lawyer called me with an inquiry. I listened, then said “well, a comment to the rule says that you should advise them that if they end up suing each other, ordinarily, the privilege doesn’t attach.”

Most likely, Lawyer called me to discuss:

  • A.   preparing a will
  • B.   defending an insured
  • C.   serving as a mediator
  • D.   representing common clients in the same matter.  See, Rule 1.7, Comment 30.  Comments 29-33 discuss “Special Considerations in Common Representation.”

Question 5

Two-part question.

I often blog about both competence and music.

Earlier this week, the ABA updated its 2007 list of the 25 Greatest Legal Movies.  Among the movies new to the list is a 2017 documentary about a lawyer who is among the most competent in the field.  Some refer to the lawyer by a nickname that derives from an iconic musician’s stage name.

In an interview following the release of the documentary, the lawyer was asked if she was uncomfortable with the nickname.  She responded “why would I feel uncomfortable? We have a lot in common.”  Indeed, both the lawyer and the musician

  • were born & raised in Brooklyn,
  • were subjected to discrimination, and
  • achieved widespread success & notoriety in their fields.
  1.  Name the lawyer:  RUTH BADER GINSBURG – aka Notorious RBG 
  2. Name the musician:  CHRISTOPHER WALLACE – aka Notorious B.I.G. (Biggie Smalls)

The documentary  by the way, is RBG

 

Five for Friday #125

Welcome to Friday!

I often blog on issues related to lawyer wellness.  Among other issues I’ve discussed, work-life balance.  For me,  summer tends to be a time of year that helps restore my balance.

Jennifer Emens-Butler is the Vermont Bar Association’s Director of Education & Communication.  Jennifer has often written & blogged on Pursuits of Happiness.  It’s a fantastic column in which she explores the wildly varied & interesting things that lawyers do outside of the law.  Check it out.

Back to summer . . . this summer, I’m happily pursuing something new.  My goal is to complete at least one 10 mile run in each of Vermont’s 14 counties.  As of today, I’m halfway to my goal, having knocked out 10 mile runs in:

  • Chittenden
  • Lamoille
  • Franklin
  • Grand Isle
  • Washington
  • Addison
  • Caledonia

This weekend I hope to tackle Windsor County.  (Aside: maybe #ABFJ will map out a route for me.)

Anyhow, why Windsor? I’m glad you asked!

You see, in each county, I’ve made a point of post-run stops at food & beverage spots that are associated with that county.   And, this weekend, Windsor’s Harpoon Brewery is hosting its annual barbecue festival.  If you like BBQ – and I like BBQ – it’s about the best place to find BBQ between here and Flat Rock, North Carolina.  Flat Rock is, of course, home to both my dad and Hubba Hubba Smokehouse, the official BBQ joing of this blog.

Running, Harpoon, BBQ.  That’s my kind of balance!

What’s this got to do with 125? Nothing, really,

But, if summer is when you recalibrate, log off and get to it.  Because, in just over 1 week, we’ll be about 25 days from the end of August.

Onto the quiz!

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

Question 1

Lawyer called me with an inquiry.  I listened, then said “per the definition, it means that the person agrees to a proposed course of conduct after you communicate adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”

The definition of what?  (hint: 2 words)

Question 2

No matter the type of case, a rule requires a lawyer to abide by a client’s decision whether:

  • A.  to settle a case
  • B.  to testify
  • C.  to hold funds in an account that will generate interest for the client
  • D.  All of the above

Question 3

In the context of a particular rule, which is different from the others?

Lawyer’s disclosure of:

  • A.  Client’s intent to commit suicide.
  • B.  information relating to the representation of Client in order to secure legal advice about Lawyer’s compliance with the rules of professional conduct.
  • C.  information relating to the representation of Client to establish a defense to a criminal charge or civil claim made against Lawyer and based upon conduct in which Client was involved.
  • D.  Client’s intent to commit a criminal act that Lawyer reasonably believes will result in the death of, or substantial bodily harm to, someone other than Client.

Question 4

Lawyer called me with an inquiry. I listened, then said “well, a comment to the rule says that you should advise them that if they end up suing each other, ordinarily, the privilege doesn’t attach.”

Most likely, Lawyer called me to discuss:

  • A.   preparing a will
  • B.   defending an insured
  • C.   serving as a mediator
  • D.   representing common clients in the same matter

Question 5

Two-part question.

I often blog about both competence and music.

Earlier this week, the ABA updated its 2007 list of the 25 Greatest Legal Movies.  Among the movies new to the list is a 2017 documentary about a lawyer who is among the most competent in the field.  Some refer to the lawyer by a nickname that derives from an iconic musician’s stage name.

In an interview following the release of the documentary, the lawyer was asked if she was uncomfortable with the nickname.  She responded “why would I feel uncomfortable? We have a lot in common.”  Indeed, both the lawyer and the musician

  • were born & raised in Brooklyn,
  • were subjected to discrimination, and
  • achieved widespread success & notoriety in their fields.
  1.  Name the lawyer
  2. Name the musician

the-quiz

 

 

 

 

 

 

 

 

Monday Morning Answers

Monday, Monday . . . can’t trust that day.

Friday’s questions are here.  The answers follow today’s honor roll.

Honor Roll

 

Answers

QUESTION 1

True or false.

By rule, expenses must be deducted from a recovery before a lawyer’s share of a contingent fee is calculated.

FALSE – per Rule 1.5(c), “a contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including . . . litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated.”

QUESTION 2

Attorney ran an advertisement that said Attorney “specializes in family law.”  Which is most accurate?

  • A.   the ad violates the rules.  Variants of “specialist” are not allowed.
  • B.   the ad violates the rules.  The only area of practice in which a lawyer can advertise as a specialist is Admiralty law.
  • C.   a Comment to a rule suggests that if Attorney specializes in family law, the ad does not violate the rules.
  • D.   Vermont’s rules do not ban ads that use words like “specialist” or “specializes in,” but hearing panels of the Professional Responsibility Board have consistently found such ads to be “inherently misleading.”

Perhaps this question is a matter of interpretation.  Last week, I shared my interpretation in this post:  Specializing in Anonymity.

And here’s a post from frequent Honor Roll member Professor Alberto Bernabe.

D is not correct.  No hearing panel of the Professional Responsibility Board has even ever considered the issue.  Rather, panels have held that a firm violates the rules by advertising as “the experts in . . .” enumerated areas of law, and, that it is a violation for a firm to advertise as a county’spremier criminal defense firm.”

QUESTION 3

Which does not belong with the others?

  • A.   The two matters are not the same or substantially related to each other.
  • B.   The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client.
  • C.   The representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal;
  • D.   Each affected client gives informed consent, confirmed in writing.

A is part of Rule 1.9’s analysis as to whether an attorney has a former client conflict.  The others are found in Rule 1.7(b)’s standard as to when a concurrent conflict of interest can be waived.

QUESTION 4

Lawyer opened a new pooled-interest-bearing trust account.  How much of Lawyer’s own money is Lawyer allowed to deposit into the account?

  • A.  $0
  • B.   No more than $100
  • C.   No more than $500
  • D.   An amount reasonably necessary to pay service charges or fees on the account, and only for the sole purpose of paying those charges or fees.

See, Rule 1.15(b).

Question 5

The bar exam is next week.  Best wishes to all who are taking it!  Trust me – I’m living proof that passing is not an impossible mission.

Anyhow, speaking of the bar exam and impossible missions, Mitch McDeere graduated from Harvard Law.  He took a job as an associate at Bendini, Lambert & Locke in Memphis and started working before he took the bar exam.  Others with whom he worked made it very clear to Mitch that no associate at Bendini, Lambert & Locke had ever failed the bar exam.

Later in the movie, we learned that some of Mitch’s co-workers had little regard for the ethics rules.

Name the movie.

The Firm, which, of course, was adapted from John Grisham’s novel of the same name.

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