Five for Friday #91: Nirvana v. Pearl Jam

91.

As most of you know, I like to use the intro to the #fiveforfriday quiz to connect the quiz number to pop culture.  Intros related to music have proven the most popular.

Earlier this summer, I used this space to argue Stones vs. Beatles.  My readers, as it turns out, are Beatles fans. One reader, however, persuasively argued that the choice isn’t binary – that one can be a fan of each band. It’s with that thought in mind that I approach this week’s intro.

In ’91, Pearl Jam released Ten and Nirvana released Nevermind.  Ten was released first, but went relatively unnoticed until the music world eagerly sought out anything related to the Seattle-sound in the wake of the enormous popularity of Nevermind.

For whatever reason, I’ve always considered Nirvana v. Pearl Jam to require a choice. In other words, it’s binary.  This summer I was hanging out with one of my cousins and a very good friend.  A Pearl Jam song came on.  My friend mentioned that he liked Pearl Jam better than Nirvana. I asked why.  He said he wasn’t really sure, other than “I felt like you had to choose one.”

But, I’m wondering, is the choice binary?

I used to subscribe to Rolling Stone.  Believe it or not, I still have 5 old issues.  Here’s a picture of 2 that I saved:

Grunge

I read them last night.  Looking back, to the extent the choice became binary, Kurt Cobain made it so.  It’s as if he demanded that fans choose.

Who’d you choose?

Full disclosure, and All Apologies, I chose Pearl Jam.  I don’t dislike Nirvana, and the older I get the more I appreciate them.  But I prefer Pearl Jam.  Very simply, I like their music better. Also, two of my closest friends in law school had gone to undergrad at UW and, in 90 & 91, got me interested in Mother Love Bone, the band from which Pearl Jam directly descended.

(Not to mention, one might argue that Pearl Jam is a basketball band.  Before it became PJ, the band was briefly known as Mookie Blaylockin honor of the great Oklahoma point guard.  “Ten” is a reference to Mookie’s jersey number.  Jeff Ament was a damned good basketball player and huge hoops fan. Made the choice easy for me!)

That being said, as I read last night, I played Nevermind.   It’s stunningly good.  Lithium is one of my favorite songs.  As great as it is, Rolling Stone ranks it only Nirvana’s 7th best, and 4th best on its album! I’d say Nirvana satisfied the duty of competence with Nevermind.

Finally, something struck me as I read this Rolling Stone piece on Cobain.  Heroin led to his death.  Further, per the article, a few years before he died, Cobain and wife Courtney Love’s drug use factored into California’s child protection authorities temporarily taking custody of their daughter.

Here’s what struck me: I had just returned home from a Vermont Bar Foundation event at which the Poverty Law Fellow, Mairead O’Reilly, talked about the fantastic work she’s doing on the impact that opioids are having on Vermonters and the Vermont judiciary.  I realized that nearly 25 years after one of the world’s biggest rock stars lost custody of his daughter and committed suicide due to problems stemming from heroin use, we are still struggling to cope with the epidemic.

We need to do better.

Ironically, Pearl Jam might not exist but for heroin.  The band was formed only after Mother Love Bone lead singer Andrew Wood died of an overdose.  His death also led to the formation of Temple of the Dog, the band that made one of my favorite songs of the so-called Grunge era: Hunger Strike.  Sadly, the driving force beyond Temple of the Dog, Soundgarden’s Chris Cornell, took his own life earlier this year.  It wasn’t a heroin overdose.  Still, he’d apparently struggled with substance abuse for years.

We need to do better getting help to those in need, no matter the reason that they need help.

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

Jeremy approaches Lawyer for representation in a matter in which Lawyer has no real experience.  True or false:  the rule that imposes a duty of competence prohibits Lawyer from representing Jeremy.

Question 2

Attorney represents Dissident.  The State has charged Dissident with assaulting an Elderly Woman Behind A Counter In Small Town.  Attorney and Dissident remain Oceans apart on how to handle the defense, with Dissident upset that Attorney repeatedly says “you’re lucky she’s still Alive.”  For purposes of the Rules of Professional Conduct, which is different from the others?

  • A.   The plea that Dissident will enter.
  • B.   Whether to cross-examine Elderly Woman (if she testifies)
  • C.   Whether Dissident will waive a jury trial.
  • D.   Whether Dissident will testify.

Question 3

Daughter retains Lawyer.  Daughter agrees to pay an hourly fee for work performed.  Which is most accurate?

  • A.  The fee agreement must be reduced to writing.
  • B.  The fee agreement must be reduced to writing within a reasonable time.
  • C.  The fee agreement must be reduced to a writing that is signed by the client.
  • D.  The rules do not require the fee agreement to be reduced to writing.

Question 4

Attorney works at Big Firm.  Partners & Associates are departing like Rats fleeing a sinking ship.  So, Attorney decides to leave life at Big Firm in the RearviewMirror and opens a solo shop. There is a rule that imposes a duty of diligence.  A comment to the rule suggests that, as a solo, Attorney might have a duty:

  • A.  To prepare a succession plan.
  • B.  To remain abreast of developments in technology.
  • C.  To utilize a cloud-based practice management system.
  • D.  To retain or associate with a non-lawyer assistant trained in bookkeeping & trust accounting

Question 5

In 1994, Pearl Jam filed a complaint with the Department of Justice.  In a cover story, Time magazine referred to the complaint as “Rock’n Roll’s Legal Battle of the Century.” The battle eventually led to band members Stone Gossard and Jeff Ament testifying before Congress.

What was the subject of Pearl Jam’s complaint?

  • A.  An alleged monopoly resulting from Ticketmaster’s purchase of Ticketron
  • B.  An alleged monopoly resulting from Clear Channel buying up local radio stations
  • C.  Royalties & Columbia House’s 8 for the Price of 1 deal on CDs
  • D.  The method by which Billboard counted album sales for purposes of the Billboard Top 100,

 

Ten

 

 

 

 

 

 

 

 

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Monday Morning Answers: #90

Friday’s questions are here.  Spoiler alert – today’s answers immediately follow the honor roll.

Honor Roll

  • A1A – Beachfront Avenue!
    • Kane Smart, Office of General Counsel, Agency of Natural Resources
  • Ed AdrianMonaghan Safar Ducham
  • Karen AllenKaren Allen Law
  • Matt AndersonPratt Vreeland Kennelly Martin & White
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor of Law, John Marshall Law School
  • Robert Grundstein, Esq.
  • Glenn JarrettJarrett & Luitjens
  • Jim Johnson, Chittenden South Supervisory Union
  • Kevin LumpkinSheehey Furlong & Behm
  • Hal Miller, First American
  • Herb Ogden, Esq.
  • Daron Raleigh, Deputy State’s Attorney, Windsor County
  • Nancy Hunter Rogers, Chamberlin School, South Burlington
  • Jack Welch, Esq.

Answers

Question 1

If you attend a CLE and I discuss “puffery,” what ethics issue am I most likely addressing?

  • A.   Whether a  lawyer violates federal law by using marijuana
  • B.   The extent to which the rules on candor & honesty apply during negotiations.
  • C.   Dishonest trust accounting practices
  • D.   Viewing an adverse party’s social media posts

Here’s my post on whether “puffery” constitutes dishonesty or a false statement of material fact to a third person.

Question 2

In legal ethics, the word “imputed” is most often associated with:

  • A.   The advertising rules
  • B.   Interest earned on lawyer trust accounts
  • C.  Conflicts of Interest.   Vermont’s rule on imputed conflicts is V.R.Pr.C. 1.10.
  • D.  Technology & The Duty of Competence

Question 3

I spoke at CLE yesterday.  One point I emphasized was:

“If it’s yours, get it out.”

When I made the statement, what general topic was I discussing?

Trust accounting.  Leaving your own money in trust is “commingling.”  If it’s yours, get it out of trust.

Question 4

By rule, “a lawyer employed or retained by an organization represents the organization acting through its duty authorized constituents.”  Do the rules allow the lawyer who represents an organization to represent its individual directors, officers, employees, members, or other constituents?

  • A.   No
  • B.   Yes
  • C.   Yes, subject to Rule 1.7 (the rule on conflicts of interest).  See, V.R.Pr.C. 1.13(g).
  • D.   The rules are silent on this issue

Question 5

And speaking of lawyers who represent organizations . . .

. . . in 2008, Tilda Swinton won the Academy Award for Best Supporting Actress for her portrayal of corporate lawyer Karen Crowder.  Crowder was in-house counsel for U-North, a giant manufacturer of agro-chemical products.  U-North was the defendant in a class action lawsuit involving allegations that U-North manufactured, marketed, and distributed a carcinogenic weed killer.

Crowder retained an outside law firm to handle the defense.  The firm’s leading litigator, Arthur Edens (Tom Wilkinson), discovered an internal memo that Crowder and U-North had intentionally withheld from the plaintiffs.  The move proved that, in fact, U-North continued to sell its product despite knowing that it would kill people in addition to killing weeds.

On the horns of the ethical dilemma of whether to blow the whistle on Crowder and U-North, Edens cracked.  During a deposition, he stripped naked and ran outside into a snowstorm.  Fearful that Edens would disclose the memo, Crowder did what any self-respecting in-house counsel would do – brought the matter to the attention of U-North’s CEO, then had Edens killed.

Shocked, Edens’ firm brought in George Clooney to figure out what happened.  It didn’t take Clooney long to determine that the firm’s client and its general counsel had been up to no good.  And it didn’t take Crowder & U-North long to attempt to send Clooney to the same fate as his law partner, Arthur Edens.

Your task: identify this movie, a film replete with legal ethics issues, including the duty to disclose a client’s fraud and crimes.  Oh yeah, and the duty not to have outside counsel murdered.

MICHAEL CLAYTON

Michael_clayton

 

 

 

Five for Friday #90

Alright, stop.  Collaborate and listen.

Actually, I should stop there.

As many of you know, I use the introduction to the #fiveforfriday legal ethics quiz to talk about something related to the week’s number.  I’ve found that intros related to music generate the most interest.  Indeed, there’s a county bar president who continues to take great umbrage over my preference for The Rolling Stones over The Beatles.

Unlike 89 in last week’s ode to Taylor Swift, 90 evokes little for me.  So, I’ll foreshadow two upcoming intros with these teasers:

  • 1990 was the year that Chris Cornell formed Temple of the Dog in response to the death of Andrew Wood, lead singer for Mother Love Bone; and,
  • 1990 was the last full calendar year before Dr. Dre left NWA.

I want to keep this week’s intro quick and to the point.  That’s an intentional reflection of the unfortunate fact that 1990 was the year that Robert Van Winkle scored a number 1 hit with a song whose lyrics included:

“Quick to the point, to the point no fakin’
I’m cookin’ MC’s like a pound of bacon.”

Finally, compounding the misfortune, it was 1990 when, as a 1L at GW Law, a friend nicknamed me “Strawberry Ice.”  For years, another friend never called me anything but “Ice.”

And the story behind the nickname is exactly why I started this post by saying  “actually, i should stop there.”  Heeding my own advice . . .

. . . onto the quiz.  Word to your mother!

 

vanilla_ice

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
  • Please consider sharing the quiz on social media with the hashtag #fiveforfriday

Question 1

If you attend a CLE and I discuss “puffery,” what ethics issue am I most likely addressing?

  • A.   Whether a  lawyer violates federal law by using marijuana
  • B.   The extent to which the rules on candor & honesty apply during negotiations
  • C.   Dishonest trust accounting practices
  • D.   Viewing an adverse party’s social media posts

Question 2

In legal ethics, the word “imputed” is most often associated with:

  • A.   The advertising rules
  • B.   Interest earned on lawyer trust accounts
  • C.  Conflicts of Interest
  • D.  Technology & The Duty of Competence

Question 3

I spoke at CLE yesterday.  One point I emphasized was:

“If it’s yours, get it out.”

When I made the statement, what general topic was I discussing?

Question 4

By rule, “a lawyer employed or retained by an organization represents the organization acting through its duty authorized constituents.”  Do the rules allow the lawyer who represents an organization to represent its individual directors, officers, employees, members, or other constituents?

  • A.   No
  • B.   Yes
  • C.   Yes, subject to Rule 1.7 (the rule on conflicts of interest)
  • D.   The rules are silent on this issue

Question 5

And speaking of lawyers who represent organizations . . .

. . . in 2008, Tilda Swinton won the Academy Award for Best Supporting Actress for her portrayal of corporate lawyer Karen Crowder.  Crowder was in-house counsel for U-North, a giant manufacturer of agro-chemical products.  U-North was the defendant in a class action lawsuit involving allegations that U-North manufactured, marketed, and distributed a carcinogenic weed killer.

Crowder retained an outside law firm to handle the defense.  The firm’s leading litigator, Arthur Edens (Tom Wilkinson), discovered an internal memo that Crowder and U-North had intentionally withheld from the plaintiffs.  The move proved that, in fact, U-North continued to sell its product despite knowing that it would kill people in addition to killing weeds.

On the horns of the ethical dilemma of whether to blow the whistle on Crowder and U-North, Edens cracked.  During a deposition, he stripped naked and ran outside into a snowstorm.  Fearful that Edens would disclose the memo, Crowder did what any self-respecting in-house counsel would do – brought the matter to the attention of U-North’s CEO, then had Edens killed.

Shocked, Edens’ firm brought in George Clooney to figure out what happened.  It didn’t take Clooney long to determine that the firm’s client and its general counsel had been up to no good.  And it didn’t take Crowder & U-North long to attempt to send Clooney to the same fate as his law partner, Arthur Edens.

Your task: identify this movie, a film replete with legal ethics issues, including the duty to disclose a client’s fraud and crimes.  Oh yeah, and the duty not to have outside counsel murdered.

 

 

the-quiz

 

Monday Morning Answers – T. Swift & T. Petty

Now I know what drives traffic – Taylor Swift!

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

Honor Roll

Answers

Question 1 – American Girl

“Well she was an American girl
Raised on promises . . .”

Later, the American girl became a lawyer and is admitted to practice in Vermont.  By rule, she has essentially promised:

  • A.  Not to disclose information related to the representation of her clients.
  • B.  Not to disclose information related to the representation of her clients, unless the information is a matter of public record.
  • C.  Not to disclose information related to the representation of her clients, unless the information falls outside the attorney-client privilege.
  • D.  Not to disclose her clients confidences and secrets.

For more on this, please see this blog post in which I discuss Rule 1.6 and its interplay with matters of privilege & matters in the public record.

Question 2 – Refugee

Lawyer represents Client in a civil matter.  Trial is scheduled for next week.  Most of Lawyer’s strategy sessions with Client have focused on Witness.  Lawyer plans to have Witness testify and offer evidence in support of Client’s claim.

Yesterday, Client said to Lawyer:

  • “We got somethin’, we both know it, we don’t talk too much about it
    Ain’t no real big secret, all the same, somehow we get around it
    Oh listen, it don’t really matter to me, baby
    You believe what you wanna believe.”

Lawyer was somewhat confused, but, having thought about it, thinks that Client might have convinced Witness to offer false evidence.  Which is most accurate?

  • A. If Lawyer reasonably believes that Witness will offer false evidence, Lawyer may refuse to offer Witness’s testimony. See, V.R.Pr.C. 3.3(a)(3).  
  • B.  Lawyer must offer Witness’s testimony.
  • C.  Lawyer must not offer Witness’s testimony.
  • D.  Lawyer must withdraw.

The key here is that Lawyer suspected, but did not know, that Client might have convinced Witness to offer false evidence.  A prudent course here would be to remonstrate with client & to make clear to Client (1) that “C” would be correct if Lawyer “knows” Witness will offer false testimony; and, (2) that if Lawyer discovers after-the-fact that Witness provided false evidence, Lawyer has a duty to take reasonable remedial measures, up to and including disclosure to the court.

Question 3 – Don’t Do Me Like ThatJammin’ Me

This is a different case than in Question 2.

Attorney informs Client that Attorney intends to file a motion to withdraw.  Client responds:

  • “Don’t do me like that
    Don’t do me like that
    Someday I might need you baby
    Don’t do me like that!”

Attorney replies “the ethics rules require me to withdraw.” Client retorts:

  • “You’re jammin’ me, you’re jammin’ me
    Quit jammin’ me
    Baby you can keep me painted in a corner
    You can walk away but it’s not over.”

Assuming that Attorney is correct and that withdrawal is mandatory, which of the following will Attorney be most likely to cite in the motion?

  • A.  Client has failed substantially to comply with the terms of the fee agreement.
  • B.  Attorney has discovered a non-waivable conflict of interest with a former client.
  • C.  The representation has been rendered unreasonably difficult by Client.
  • D.  Client insists on taking a course of action that Attorney considers repugnant.

Rule 1.16(a)(1) mandates withdrawal when continued representation will result in a violation of the rules of professional conduct.  Continuing despite a non-waivable conflict would cause Attorney to violate the rules.   Thus, B is correct.  Choices A, C, and D are instances in which withdrawal is permitted, but is not mandatory.  

Question 4 – Runnin’ Down A Dream

Continuing the scenario from the previous question, Attorney filed the motion to withdraw.  As it remained pending, stress & anxiety bedeviled Client.  Then, the court granted the motion.  Shortly thereafter, Client contacted the VBA’s Lawyer Referral Service and received a list of potential new lawyers.  Uplifted, Client called Attorney to schedule an appointment to pick up the file. Client said:

  • “I rolled on as the sky grew dark
    I put the pedal down to make some time
    There’s something good waitin’ down this road
    I’m pickin’ up whatever’s mine.”

When Client arrives, Vermont’s rule specifically requires Attorney to:

  • A.   Keep a copy of Client’s file.
  • B.   Surrender Papers & Property to which Client is entitled.
  • C.   A, B, and refund any unearned fee.
  • D.   B and refund any unearned fee.

This is Rule 1.16(d).  After complying with the rule by delivering the file, there is nothing in the rules of professional conduct that requires Attorney to keep a copy of the file.  Most carriers, however, have language in their policies that require lawyers to keep copies of a closed files for X number of years.

Question 5 – Free Fallin’

Continuing the scenario . . . Client followed through on her statement that Attorney could walk away, but it’s not over.  Before runnin’ down her dream elsewhere, Client posted a negative online review about Attorney, sued Attorney for malpractice, and filed a disciplinary complaint against Attorney.

Attorney intends to respond with:

  • “She’s a good girl, loves her mama
    Loves Jesus and America too
    She’s a good girl, crazy ’bout Elvis
    Loves horses and her boyfriend too
  • It’s a long day livin’ in Reseda
    There’s a freeway runnin’ through the yard
    And I’m a bad boy, ’cause I don’t even miss her
    I’m a bad boy for breakin’ her heart”

Assume the information in the response is true, but is not generally known.  Attorney would likely violate the rules by:

  • A.  Posting the information online, in response to the negative review.
  • B.  Incorporating the response into the defense of the malpractice complaint.
  • C.  Incorporating the response into his answer to the disciplinary complaint.
  • D.  None of the above.  No matter the forum, Client put the representation in issue.

Client is a “former client.”   Rule 1.9(c)(2) prohibits disclosure of information relating to the representation of a former client unless the rules otherwise permit disclosure.  Here, Rule 1.6(c)(3) permits B & C.  The rule is often referred to as the “self-defense exception” to the general prohibition against disclosure.  It is well-settled that the “self-defense exception” does not apply to negative online reviews.  For more, see my post Negative Online Review? What NOT to do.

swift and petty

Five for Friday #89: T. Swift & T. Petty

89!

Regular readers – what did you guess I’d use as my “89” reference?

  • The fact that it’s one of Vermont’s interstates?  Terrible guess. Horribly wrong.
  • The fact that it’s a Fibonacci number?  Good guess.  Still wrong.

No more guesses! For 89, I’m using a musical reference and, in the process, making a confession:

I’m a Swiftie.

For those of you who haven’t fallen out of your chairs and are still reading, that means that I’m a big (and now unabashed) fan of Taylor Swift.  The connection to this post is her album (and birth year) 1989.

Swift

I first learned of Taylor in 2007.  My friend Jenny (from the block) and I went to the Champlain Valley Fair to see Brad Paisley, Kellie Pickler, and someone named Taylor Swift.  Paisley was a superstar, Pickler had a #1 album, and I’d never heard of Swift.  The only thing I knew about her was that she was scheduled to open.

Open she did.  To state the obvious, when the concert closed, Jenny (from the block) and I walked out singing about how much we hated “that stupid ol’ pickup truck that he never let me drive……”  The rest is history.

And the history inclues legal ethics.

I’ve used one of Swift’s songs at several CLE seminars.  I often speak on the importance of choosing clients wisely & managing client expectations.  When I do, I mention that there are 3 clients whose expectations can be difficult to manage:

  1. The Blondie client (“Call Me“)
  2. The Sinatra client (“My Way“)
  3. The Swift client (“Blank Space“)

The first two references speak for themselves.  However, I usually have to explain the reference to “the Swift client.” (Young lawyers! Please! Assert yourselves at the next seminar!)

“Blank Space” is a song off 1989.  It tells the story of a budding romance in which Swift warns a new (& soon-to-be former) suitor that the relationship quickly will devolve, lilely in a manner similar to the devolution of prior relationships. The lyrics include:

  • “I’ve gotta a long list of ex-lovers, they’ll tell you I’m insane,  but I’ve got a blank space baby, and I’ll write your name.”

In my seminars, I tell lawyers that “the Swift client” is the client who comes to them after having burned through 3 or 4 prior attorneys.  As I put it, the “Swift client” has:

  • “a long list of ex-lawyers, they’ll tell you I’m insane, but I’ve got a blank space baby and I’ll write your name.”

And you know what the “blank space” is?  It’s the space on a disciplinary complaint where the Swift client will write the new (& soon-to-be former) lawyer’s name once the relationship quickly devolves in a manner similar to the client’s relationships with prior attorneys.

Don’t believe me? Conjure up the memory of the promising client who turned into one of the most difficult clients you’ve ever had to manage .  . . then watch the video and listen to the lyrics.

Sometimes the prospective client who looks like your next mistake . . . is.

Don’t say I didn’t say I didn’t warn ya.

T: I promise I’ll never blog about Katy Perry!

Next, I’m going to honor Tom Petty.  So, Damn the Torpedoes and onto the quiz!

Petty

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
  • Please consider sharing the quiz on social media with the hashtag #fiveforfriday

Question 1 – American Girl

“Well she was an American girl
Raised on promises . . .”

Later, the American girl became a lawyer and is admitted to practice in Vermont.  By rule, she has essentially promised:

  • A.  Not to disclose information related to the representation of her clients.
  • B.  Not to disclose information related to the representation of her clients, unless the information is a matter of public record.
  • C.  Not to disclose information related to the representation of her clients, unless the information falls outside the attorney-client privilege.
  • D.  Not to disclose her clients confidences and secrets.

Question 2 – Refugee

Lawyer represents Client in a civil matter.  Trial is scheduled for next week.  Most of Lawyer’s strategy sessions with Client have focused on Witness.  Lawyer plans to have Witness testify and offer evidence in support of Client’s claim.

Yesterday, Client said to Lawyer:

  • “We got somethin’, we both know it, we don’t talk too much about it
    Ain’t no real big secret, all the same, somehow we get around it
    Oh listen, it don’t really matter to me, baby
    You believe what you wanna believe.”

Lawyer was somewhat confused, but, having thought about it, thinks that Client might have convinced Witness to offer false evidence.  Which is most accurate?

  • A. If Lawyer reasonably believes that Witness will offer false evidence, Lawyer may refuse to offer Witness’s testimony.
  • B.  Lawyer must offer Witness’s testimony.
  • C.  Lawyer must not offer Witness’s testimony.
  • D.  Lawyer must withdraw.

Question 3 – Don’t Do Me Like ThatJammin’ Me

This is a different case than in Question 2.

Attorney informs Client that Attorney intends to file a motion to withdraw.  Client responds:

  • “Don’t do me like that
    Don’t do me like that
    Someday I might need you baby
    Don’t do me like that!”

Attorney replies “the ethics rules require me to withdraw.” Client retorts:

  • “You’re jammin’ me, you’re jammin’ me
    Quit jammin’ me
    Baby you can keep me painted in a corner
    You can walk away but it’s not over.”

Assuming that Attorney is correct and that withdrawal is mandatory, which of the following will Attorney be most likely to cite in the motion?

  • A.  Client has failed substantially to comply with the terms of the fee agreement.
  • B.  Attorney has discovered a non-waivable conflict of interest with a former client.
  • C.  The representation has been rendered unreasonably difficult by Client.
  • D.  Client insists on taking a course of action that Attorney considers repugnant.

Question 4 – Runnin’ Down A Dream

Continuing the scenario from the previous question, Attorney filed the motion to withdraw.  As it remained pending, stress & anxiety bedeviled Client.  Then, the court granted the motion.  Shortly thereafter, Client contacted the VBA’s Lawyer Referral Service and received a list of potential new lawyers.  Uplifted, Client called Attorney to schedule an appointment to pick up the file. Client said:

  • “I rolled on as the sky grew dark
    I put the pedal down to make some time
    There’s something good waitin’ down this road
    I’m pickin’ up whatever’s mine.”

When Client arrives, Vermont’s rule specifically requires Attorney to:

  • A.   Keep a copy of Client’s file.
  • B.   Surrender Papers & Property to which Client is entitled.
  • C.   A, B, and refund any unearned fee.
  • D.   B and refund any unearned fee.

Question 5 – Free Fallin’

Continuing the scenario . . . Client followed through on her statement that Attorney could walk away, but it’s not over.  Before runnin’ down her dream elsewhere, Client posted a negative online review about Attorney, sued Attorney for malpractice, and filed a disciplinary complaint against Attorney.

Attorney intends to respond with:

  • “She’s a good girl, loves her mama
    Loves Jesus and America too
    She’s a good girl, crazy ’bout Elvis
    Loves horses and her boyfriend too
  • It’s a long day livin’ in Reseda
    There’s a freeway runnin’ through the yard
    And I’m a bad boy, ’cause I don’t even miss her
    I’m a bad boy for breakin’ her heart”

Assume the information in the response is true, but is not generally known.  Attorney would likely violate the rules by:

  • A.  Posting the information online, in response to the negative review.
  • B.  Incorporating the response into the defense of the malpractice complaint.
  • C.  Incorporating the response into his answer to the disciplinary complaint.
  • D.  None of the above.  No matter the forum, Client put the representation in issue.

swift and petty

 

 

Monday Morning Answers: #88

I apologize for not posting this earlier.

Friday’s questions are HERE.  Spoiler alert, the answers follow this week’s Honor Roll.

Apparently, not many of my readers are NASCAR fans.  Kudos to Penny Benelli, Beth DeBernardi, and Erin Gilmore for recognizing that Friday’s picture was of Dale Earnhardt, Jr. and me.  Junior drives the 88.

Junior 88

Honor Roll

  • Laura Anderson, Nursing Supervisor, Mt. Ascutney Hospital & Health Center
  • Matt AndersonPratt Vreeland Kennelly Martin & White
  • Penny Benelli, Dakin & Benelli
  • Alberto BernabeLaw Professor, John Marshall Law School
  • Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labor
  • Erin GilmoreRyan Smith & Carbine
  • Robert Grundstein
  • Aileen LachsMickenberg, Dunn, Lachs & Smith
  • Samantha LednickyDowns Rachlin & Martin
  • Kevin LumpkinSheehey Furlong & Behm
  • Lon McClintockMcClintock Law Office
  • Hal Miller, First American
  • Robyn SweetCore Registered Paralegal, Cleary Shahi & Archer

Answers

Question 1

Prospective Client consults in good faith with Lawyer, with an eye towards retaining Lawyer.  However, Client chooses not to retain Lawyer.  Client notifies Lawyer of the decision.

Per the rules, Lawyer continues to owe Prospective Client a _____________, but in a somewhat relaxed fashion as compared to a former client.

  • A.   Duty of Loyalty
  • B.   Duty to Maintain Client’s Confidences
  • C.   Neither A nor B
  • D.  Both A & B

I don’t think I phrased the question well.  Here’s what I was trying to help people to think about.

Rule 1.18 sets out the duties that a lawyer owes to a “prospective client.”  A prospective client is one who consults with a lawyer in good faith and with an eye towards retaining the lawyer, but who, for whatever reason, does not retain the lawyer.

The duty to maintain the prospective client’s confidences continues to apply and IS NOT relaxed.  Rule 1.18(b) says:

  • “Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.6 would require or permit or as Rule 1.9 would permit with respect to information of a former client.”

In other words, I read the duty to maintain the prospective client’s confidences to apply to the same extent & degree as it would apply if the client was a former client.

Further, I read the rule as relaxing, however little, the duty of loyalty as compared to the duty of loyalty owed to a former client.

With respect to a former client, Rule 1.9(a) makes it clear that a lawyer cannot represent someone whose interests are materially adverse to those of a former client in the same or a substantially related matter unless the former client gives informed consent, confirmed in writing.

Rule 1.18 is different.  Specifically, Rule 1.18(c) states that “a lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d).”  (emphasis added).  There’s no such proviso in Rule 1.9, the rule that applies to former clients.

In other words, as I read the rule, it’s not as strict as Rule 1.9 and applies only if the lawyer received information that could be significantly harmful to the prospective client. And, even then, paragraph(d) permits a firm to screen the lawyer who consulted with the prospective client.  Normally, a former-client conflict under Rule 1.9 is imputed to all other lawyers in the firm by Rule 1.10 and, therefore, screening is not allowed. That’s another reason why I consider Rule 1.18 to relax the duty of loyalty.

Question 2

Which must a lawyer keep for 6 years following the termination of a representation?

  • A.   The file
  • B.   Client confidences
  • C.   Complete records of funds held in trust and other property
  • D.  Electronic communications with the client

The rules require the file to be delivered upon the termination of the representation.  Rule 1.16(d).  There is no duty to keep a copy. Of course, it’s a good idea to do so and, odd are, your liabilit insurance requires you to.

 Confidences must be kept forever, unless a client consents to disclosure or the information has become “generally known.”  See, Rule 1.9(c). 

Electronic communications are part of the file and there is no independent rule requiring them to be kept.

Rule 1.15(a)(1) requires lawyers to follow the trust account rules and prohibits commingling.  It states that “[c]omplete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of six years after termination of representation.”

Question 3

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

  • “Client hasn’t paid in 8 months? Assuming nothing crucial is imminent, my position is that you’re permitted to file the motion.  Whether the court grants it is another question.  The question will be whether there will be a material adverse effect on your client.”

What type of motion?

Motion to Withdraw, See V.R.Pr.C 1.16(b)

Question 4

Attorney represents Irving in the civil matter Irving v. James.   Lawyer represents James and has retained Expert Witness.

Whether Attorney can contact Expert Witness without Lawyer’s permission is likely governed by:

  • A.  Rule 4.2 (the no-contact rule)
  • B.  Rule 1.6 (information relating to the representation)
  • C.  The Rules of Civil Procedure
  • D.  The Rules of Evidence

An expert witness is not represented by the lawyer who represents the party or person for whom the witness will be testifying. So, Rule 4.2 does not apply.

However, Rule 26 of the Rules of Civil Procedure limits the ways in which discovery may be obtained from an expert witness.  Contacting that witness informally might not be one of them.  Thus, in the hypo, Rule 26 answers the question. And, remember, a violation of the Rules of Civil Procedure might rise to the level of a violation of Rule 3.4(c) of the Rules of Professional Conduct.

Question 5

When we first met Mike Ross, he hadn’t gone to college or law school, but was earning money by taking (and passing) the LSAT for others.  Then, to earn money to pay for his grandmother’s medical care, Mike agreed to deliver marijuana for a friend.  Somehow he managed not to be arrested in the ensuing sting and, almost impossibly, ended up with a job interview at a law firm.

He was hired.  As a lawyer. Even though Harvey, the partner who interviewed him, knew that Mike had not taken the bar exam or been admitted to practice.

After several years in practice, Mike was charged criminally with fraud & the unauthorized practice of law.  While the jury deliberated, Mike agreed to a plea offered by Anita, the U.S Attorney who was prosecuting him.

After serving a prison stint, Mike passed the bar, with only review by the Character & Fitness Committee standing between him and admission.  Yikes! Guess who bribed her way onto the committee charged with reviewing his application??? Anita!!  She did so not only to keep Mike out, but to try to prove her theory that Harvey (and others) had known all along that Mike wasn’t a lawyer!

Amazingly, Mike was admitted and spent the show’s most recent season as a duly licensed member of the New York State Bar.

Name the tv show.

Mike Ross is a lawyer in Suits.  

Ross Suits

 

 

 

Five for Friday: #88

Welcome to #88!

Just kidding.  There is no #fiveforfriday this week.

Oh wait, yes there is….it’s that there’s no scam targeting lawyers this week!  Sorry, I get confused.

Anyhow, what to say about 88?  Those who know me best would be very disappointed if I said anything other than what I’m about to.

In February, I was in Miami for the annual meeting of the National Organization of Bar Counsel.  The meeting ended on the day before the Super Bowl. Once it ended, I rented a car and drove to Key West.

The Keys perfectly suit my No Shoes Nation lifestyle.  And, Key West is where my buddy Daren lives.  We met in about 3rd grade.  Now, Daren splits time between South Burlington & Key West.  He and his girlfriend let me crash for the weekend.

Daren owns the Viva Saloon, official southern-most bar of Ethical Grounds.  That’s where I watched the Super Bowl.

The manner in which the Falcons blew game remains unbelievable.  Even more unbelivable? Look who stopped into Viva after the game and sat down next to me.

IMG_2015

That’s my 88 story.  Bonus points in the quiz to anyone who can tell me what, specifically, it’s got to do with 88.

Oh, and since I constantly harangue you about competence, and since I’m a basketball guy, and since we’re in Week 88, and since it’s September 29 . . . happy birthday Kevin Durant!  KD was born on September 29, 1988.  In my opinion, he’s the most competent player in the world today.  Plus, thanks to this sequence, Kyrie is a Celtic!

Finally, to my readers who think I don’t mention Prince enough, it was on September 29 that Let’s Go Crazy reached #1 on the Billboad charts.  Alas, 1984, not 1988.

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

Prospective Client consults in good faith with Lawyer, with an eye towards retaining Lawyer.  However, Client chooses not to retain Lawyer.  Client notifies Lawyer of the decision.

Per the rules, Lawyer continues to owe Prospective Client a _____________, but in somewhat relaxed fashion as compared to a former client.

  • A.   Duty of Loyalty
  • B.   Duty to Maintain Client’s Confidences
  • C.   Neither A nor B
  • D.  Both A & B

Question 2

Which must a lawyer keep for 6 years following the termination of a representation?

  • A.   The file
  • B.   Client confidences
  • C.   Complete records of funds held in trust and other property
  • D.  Electronic communications with the client

Question 3

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

  • “Client hasn’t paid in 8 months? Assuming nothing crucial is imminent, my position is that you’re permitted to file the motion.  Whether the court grants it is another question.  The question will be whether there will be a material adverse effect on your client.”

What type of motion?

Question 4

Attorney represents Irving in the civil matter Irving v. James.   Lawyer represents James and has retained Expert Witness.

Whether Attorney can contact Expert Witness without Lawyer’s permission is likely governed by:

  • A.  Rule 4.2 (the no-contact rule)
  • B.  Rule 1.6 (information relating to the representation)
  • C.  The Rules of Civil Procedure
  • D.  The Rules of Evidence

Question 5

When we first met Mike Ross, he hadn’t gone to college or law school, but was earning money by taking (and passing) the LSAT for others.  Then, to earn money to pay for his grandmother’s medical care, Mike agreed to deliver marijuana for a friend.  Somehow he managed not to be arrested in the ensuing sting and, almost impossibly, ended up with a job interview at a law firm.

He was hired.  As a lawyer. Even though Harvey, the partner who interviewed him, knew that Mike had not taken the bar exam or been admitted to practice.

After several years in practice, Mike was charged criminally with fraud & the unauthorized practice of law.  While the jury deliberated, Mike agreed to a plea offered by Anita, the U.S Attorney who was prosecuting him.

After serving a prison stint, Mike passed the bar, with only review by the Character & Fitness Committee standing between him and admission.  Yikes! Guess who bribed her way onto the committee charged with reviewing his application??? Anita!!  She did so not only to keep Mike out, but to try to prove her theory that Harvey (and others) had known all along that Mike wasn’t a lawyer!

Amazingly, Mike was admitted and spent the show’s most recent season as a duly licensed member of the New York State Bar.

Name the tv show.

the-quiz

 

 

 

 

 

 

 

 

 

 

 

 

Monday Morning Answers: Constitution Day

Welcome to Monday! Hope you enjoyed the fantastic weekend weather.  As fantastic as the weather? The fact that a quiz on the Constitution results in one of the largest Honor Rolls in recent memory!

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

Honor Roll

  • Matthew Anderson, Pratt Vreeland Kennelly Martin & White
  • Penny Benelli, Dakin & Benelli
  • Andrew Costello, Leeds Brown Law
  • Nicholas Daigle, Community Correctional Officer, Agency of Human Services
  • Andrew Delaney, Martin & Associates
  • Robert Grundstein
  • Gregg Harris, Assistant Attorney General, Buildings & General Services
  • Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
  • Glenn Jarrett, Jarrett & Luitjens
  • John Leddy, McNeil Leddy & Sheehan
  • Jeffrey Messina, Bergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Herb Ogden
  • Robyn Sweet, Paralegal, Cleary, Shahi, Aicher
  • Tech Competence Rules!
  • Emily Tredeau, Prisoners’ Rights Office

Answers

Question 1

The 1st Amendment to the United States Constitution lists 6 things about which “Congress shall make no law.”   1 point for each you can name.

  • establishing religion
  • prohibiting the free exercise of religion
  • abridging the freedom of speech
  • abridging the freedom of the press
  • abridging the right of the people peaceably to assemble
  • abridging the right of the people to petition the government for redress of grievances

Question 2

On May 1, 2017, the ABA marked “Law Day” by celebrating an amendment that it called “a mini-constitution for modern times.”   The amendment is the longest, and per the ABA, “arguably the most important.”  Name the amendment.

The 14th Amendment.

Question 3

Which is different from the others?

  • A.  right to be secure from unreasonable searches & seizures
  • B.  right not to be compelled to self-incriminate in a criminal matter
  • C.  right not to be deprived of life, liberty, or property without due process of law
  • D.  right not to have private property taken for public use without just compensation

Answer “A” is the answer I had in mind when I crafted the question.  The right to be secure from unreasonable searches and seizures is in the 4th Amendment, while the others are in the 5th.  However, some readers pointed out that “C” is also different from the others in that it appears in two amendments: the 5th and the 14th. So, credit for “C” as well.

Question 4

The “Great Compromise” reached at the Constitutional Convention likely saved the Constitution and, by extension, the fledging Union.

What are the two things that the “Great Compromise” called for?

  • proportional representation in the House
  • equal representation in the Senate

Question 5

In 1792, a boy was born in Danville, Vermont.  Later, he attended Burlington College at UVM, but transferred to Dartmouth after the federal government took over UVM during The War of 1812.  After graduating from Dartmouth, he became a lawyer and was admitted to the Pennsylvania Bar.  For many years, he had very successful practice in Gettysburg.

This Vermont-born lawyer eventually was elected to the United States Congress as a “radical republican” from Pennsylvania.  During the Civil War, he served as the chair of the House Ways & Means Committee.  His work as chair was key to the Union’s efforts to fund the war.

A staunch abolitionist, this Vermont-born lawyer played a critical role in the passage of the 13th and 14th Amendments to the United States Constitution.  In response to the House vote to authorize the 13th Amendment, he said:

  • “I will be satisfied if my epitaph shall be written thus, ‘Here lies one who never rose to any eminence, and who only courted the low ambition to have it said that he had striven to ameliorate the condition of the poor, the lowly, the downtrodden of every race and language and color.’ ”

In 2013, Tommy Lee Jones received an Oscar nomination for Best Supporting Actor for his portrayal of this Vermont-born lawyer in the movie Lincoln.

Name the lawyer.

Thaddeus Stevens

Thaddeus Stevens

Five for Friday #87: The Constitution

Welcome to the 87th #fiveforfriday legal ethics quiz!

It’s fitting that #fiveforfriday87 falls during Constitution Week.  Why? Funny you should ask!

The Constitution was signed on September 17, 1787.  Indeed, it reminds me of a song that I sang as a kid:

  • “in 1787 I’m told our founding fathers diiiid agree, to write a list of principles FOR keepin’ people freeee. The U.S.A. was just startin’ out a whole brand new countreeee. And so our leaders spelled it out, the things that we should bee-EEE.”

(if you’re interested in hearing me sing more, read THIS)

On a more serious note, here’s a startling statement on the Constitution and civics.  According to a recent poll, nearly 40% of Americans cannot name a single protection listed in the 1st Amendment.

Think about that.

Are you trying to come up with a few?

Hint: there are SIX things about which “Congress shall make no law.” 4 in 10 people cannot name 1.

Worse, per the same poll, only 1 in 4 Americans can name all 3 branches of government!

If 3 out of 4 don’t know the branches, how are we to impress upon the executive & legislative branches the importance of an independent & fully funded judicial branch?

Here’s a simple way to help: contact the Vermont Bar Association at info@vtbar.org  Ask for a pocket constitution.  Give the pocket constitution to a kid, or to a teacher, or to a client who is a school board member.

Or, do what a number of Vermont lawyers have been doing around the state: volunteering their time to visit schools and civic organizations to talk about the Constitution and civics.  It might sound like a small step.  It is.  But small steps often lead in the right direction.

Again contact info@vtbar.org and ask for some pocket Constitutions.

Onto the quiz!

And what better way to mark Constitution Week than with a Constitution-themed quiz.

Rules

  • None.  Open book, open search engine, text-a-friend.
  • 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
  • Amendment 1:  Mike shall make no law abridging a quiz taker’s right to an open book, open search engine, phone-a-friend quiz.  Yet, in the spirit of civics, give this week’s quiz a shot without exercising the rights conferred by this Amendment.
  • Amendment 2: Notwithstanding Amendment 1, Question 5 is closed book, closed search engine, no contacting friends.
  • Amendment 21.  I agree!

Question 1

The 1st Amendment to the United States Constitution lists 6 things about which “Congress shall make no law.”   1 point for each you can name.

Question 2

On May 1, 2017, the ABA marked “Law Day” by celebrating an amendment that it called “a mini-constitution for modern times.”   The amendment is the longest, and per the ABA, “arguably the most important.”  Name the amendment.

Question 3

Which is different from the others?

  • A.  right to be secure from unreasonable searches & seizures
  • B.  right not to be compelled to self-incriminate in a criminal matter
  • C.  right not to be deprived of life, liberty, or property without due process of law
  • D.  right not to have private property taken for public use without just compensation

Question 4

The “Great Compromise” reached at the Constitutional Convention likely saved the Constitution and, by extension, the fledging Union.

What are the two things that the “Great Compromise” called for?

Question 5

In 1792, a boy was born in Danville, Vermont.  Later, he attended Burlington College at UVM, but transferred to Dartmouth after the federal government took over UVM during The War of 1812.  After graduating from Dartmouth, he became a lawyer and was admitted to the Pennsylvania Bar.  For many years, he had very successful practice in Gettysburg.

This Vermont-born lawyer eventually was elected to the United States Congress as a “radical republican” from Pennsylvania.  During the Civil War, he served as the chair of the House Ways & Means Committee.  His work as chair was key to the Union’s efforts to fund the war.

A staunch abolitionist, this Vermont-born lawyer played a critical role in the passage of the 13th and 14th Amendments to the United States Constitution.  In response to the House vote to authorize the 13th Amendment, he said:

  • “I will be satisfied if my epitaph shall be written thus, ‘Here lies one who never rose to any eminence, and who only courted the low ambition to have it said that he had striven to ameliorate the condition of the poor, the lowly, the downtrodden of every race and language and color.’ ”

In 2013, Tommy Lee Jones received an Oscar nomination for Best Supporting Actor for his portrayal of this Vermont-born lawyer in the movie Lincoln.

Name the lawyer.

Constitution