Monday Morning Answers #146

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

Special kudos to (1) Under Pressure for a team name cleverly linked to Question 5; and (2) Kevin Lumpkin for using “Fauxstralian” to describe Friday’s example of paltering.

Honor Roll

Answers

Question 1

Last week, the quiz’s first question asked readers to name 1 of the 5 C’s of ethics.  They are Competence, Communication, Confidences, Conflicts and Candor.  This week, I blogged about the importance of a professional duty that begins with a letter that abuts C.  It’s a duty that applies no matter how “big” or “small” a lawyer views a client’s matter.

It’s the duty in the rule entitled:

  • A.   Bookkeeping
  • B.   Barratry
  • C.   Diligence;  See this blog post.
  • D.  Dual Representation

Question 2

One of the conflicts rules states that “a concurrent conflict of interest exists if the representation of one client will be directly adverse to another.”

True or False:

The rule speaks to matters that are the same or substantially related to each other. For example, a lawyer who represents Kennedy in Kennedy v James, can also represent Brady in Kennedy v. Brady, as long as the two matters are wholly unrelated.

FALSE.  See, Rule 1.7, Comment [6]: “absent consent, a lawyer may not act as an advocate in one matter against a person a lawyer represents in some other matter, even when the matters are wholly unrelated.”

Question 3

Lawyer is holding funds in connection with the representation of Client.  Both Client and Third Party Service Provider have claimed an interest in the funds.  Client and Third Party Service Provider dispute the amount to which each is entitled.  In fact, Lawyer is aware that Third Party Service Provider’s claim is valid.  By rule, Lawyer must:

  • A.   Pay the funds into court and ask a court to resolve the dispute
  • B.   Hold the funds in a trust account until the dispute is resolved.  Rule 1.15(e)
  • C.   Disburse the funds as directed by Client
  • D.   Disburse in accordance with Lawyer’s good-faith determination of the amount due to each

Question 4

Somewhat unbelievably, this one just happened again last week. So, I’m going to keep asking.

Attorney called me with an inquiry.  Attorney said “Mike, I represent a witness.  The defendant’s attorney keeps contacting my client directly. I asked him to stop.  He said he doesn’t need my permission because my client is only a witness, not a party.  Is he right?”

What was my response?

  • A.   Yes, he’s right.
  • B.   The rule is unclear.
  • C.   The rule is unclear, but, by case law, no, he’s wrong.
  • D.  He’s wrong. The rule applies to any person who is represented in a matter.  See, Rule 4.2

Question 5

I don’t watch reality tv, but I like regular tv. In addition, I often blog about competence. I also like to blog about lawyers who are quite competent at non-lawyerly pursuits.

A few years ago, I got into a show called Mr. Robot.  One of the reasons I liked it was the fantastically competent work by lead actor Rami Malek.

Earlier this week, Malek won the Golden Globe for outstanding lead actor in a movie. In the movie, he played Freddy Mercury.  This is a hint, as is the fact that I purposefully did not name the movie.

The Windham County Bar Association held its annual dinner on Wednesday night.  Thanks to former secretary Ray Massucco, the WCBA has a wonderful tradition of presenting the minutes of the previous year’s meeting in a very entertaining way.

This year was James Valente’s first meeting as Secretary of the WCBA. He marked the occasion by channeling his inner Freddy Mercury and singing the minutes of the 2017 meeting to the tune of a famous Queen song.  By all accounts, he was fantastically competent.

Name the song.

Bohemian Rhapsody.  The official version is here.  True story: footage of Valente’s version exists.  I’ve watched it, and it’s even more fantastically competent than you can imagine.

Image result for bohemian rhapsody images

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Five for Friday #146

Welcome to Friday!

I’m battling writer’s block today.  As I struggled, I re-read last week’s post about my mom.   Then it hit me: especially this week, “146” makes me think of two things: paltering and reality TV.

Whether speaking or writing on professional responsibility, “puffery” and “paltering” are two of my favorite words.  Last October, I posted On Ponds, Puffery & PalteringIn it, I shared a story of my own paltering.  As a refresher, here’s a short excerpt:

“A person palters by actively using the truth to deceive.  As this piece in the Washington Post points out, many consider ‘the behavior of someone who paltered in a negotiation as being just as unethical or untrustworthy as the person who outright lied with a known falsehood.’

Remember: when representing a client, Rule 4.1 prohibits misrepresentations of fact or law to a third person.  Per Comment [1], ‘[m]isrepresentations can also occur by partially true or misleading statements or omissions that are the equivalent of affirmative false statements.'”

Last Friday, my set-up for “145” was to ask readers to pronounce it “1 for 5.”  I wrote:

“If you say it ‘1 for 5,’ well, you’ve summed up my baseball career.  As in, I was a terrible hitter:  ‘1 for 5’ was an above average game at bat for me.”

Well, now that I think about it, does 1 for 5 sum up my baseball career?  Yes, but that’s only partially true.  It’s far more accurate to say “yes, I went 1 for 5, then I made another out in my 6th at-bat.”

1 for 6.

Now, here’s where reality TV comes in.

I  don’t like reality TV.  I don’t watch any of it.  The only exception: in law school, I was into MTV’s Real World.  I watched the first 3 seasons.  Since then, I’ve actively worked to know as little as possible about reality TV.

Alas, worlds collide.

Monday night was a huge night for me.  Not only did my beloved Clemson Tigers win the college football national championship, but Season 23 of The Bachelor premiered.  No, I didn’t watch.  I never have.  It’s reality TV and it’s not puffery when I tell you that I despise reality TV.

But, in the hype leading up to the premiere, The Bachelor made headlines for, guess what?

Paltering!

The pre-premiere promos include this tweet.  Check it out.  That is the clinical definition of paltering!

And that is why, in the unlikely event that I ever again have to pause to reflect on the number 146, my introspection will cause me to think of baseball, paltering, and reality TV.

Image result for images of an aussie flag

On to the quiz!

Rules

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

Question 1

Last week, the quiz’s first question asked readers to name 1 of the 5 C’s of ethics.  They are Competence, Communication, Confidences, Conflicts and Candor.  This week, I blogged about the importance of a professional duty that begins with a letter that abuts C.  It’s a duty that applies no matter how “big” or “small” a lawyer views a client’s matter.

It’s the duty in the rule entitled:

  • A.   Bookkeeping
  • B.   Barratry
  • C.   Diligence
  • D.  Dual Representation

Question 2

One of the conflicts rules states that “a concurrent conflict of interest exists if the representation of one client will be directly adverse to another.”

True or False:

The rule speaks to matters that are the same or substantially related to each other. For example, a lawyer who represents Kennedy in Kennedy v James, can also represent Brady in Kennedy v. Brady, as long as the two matters are wholly unrelated.

Question 3

Lawyer is holding funds in connection with the representation of Client.  Both Client and Third Party Service Provider have claimed an interest in the funds.  Client and Third Party Service Provider dispute the amount to which each is entitled.  In fact, Lawyer is aware that Third Party Service Provider’s claim is valid.  By rule, Lawyer must:

  • A.   Pay the funds into court and ask a court to resolve the dispute
  • B.   Hold the funds in a trust account until the dispute is resolved
  • C.   Disburse the funds as directed by Client
  • D.   Disburse in accordance with Lawyer’s good-faith determination of the amount due to each

Question 4

Somewhat unbelievably, this one just happened again last week. So, I’m going to keep asking.

Attorney called me with an inquiry.  Attorney said “Mike, I represent a witness.  The defendant’s attorney keeps contacting my client directly. I asked him to stop.  He said he doesn’t need my permission because my client is only a witness, not a party.  Is he right?”

What was my response?

  • A.   Yes, he’s right.
  • B.   The rule is unclear.
  • C.   The rule is unclear, but, by case law, no, he’s wrong.
  • D.  He’s wrong. The rule applies to any person who is represented in a matter.

Question 5

I don’t watch reality tv, but I like regular tv. In addition, I often blog about competence. I also like to blog about lawyers who are quite competent at non-lawyerly pursuits.

A few years ago, I got into a show called Mr. Robot.  One of the reasons I liked it was the fantastically competent work by lead actor Rami Malek.

Earlier this week, Malek won the Golden Globe for outstanding lead actor in a movie. In the movie, he played Freddy Mercury.  This is a hint, as is the fact that I purposefully did not name the movie.

The Windham County Bar Association held its annual dinner on Wednesday night.  Thanks to former secretary Ray Massucco, the WCBA has a wonderful tradition of presenting the minutes of the previous year’s meeting in a very entertaining way.

This year was James Valente’s first meeting as Secretary of the WCBA. He marked the occasion by channeling his inner Freddy Mercury and singing the minutes of the 2017 meeting to the tune of a famous Queen song.  By all accounts, he was fantastically competent.

Name the song.

 

 

 

 

 

 

 

 

 

 

Monday Morning Answers #145

Good Monday morning!

2019 is off to a great start! A record number of folks made the Honor Roll!

Friday’s questions are here.  Thank you for the many kind words about my mom.  The answers follow today’s Honor Roll.

p.s.: based on the responses I received, it’d be fascinating to host a debate where my readers make their various cases as to whether Pete Rose should or should not be in the Hall of Fame!

Honor Roll

  • Matthew AndersonPratt Vreeland Kennelly Martin & White
  • Evan BarquistMontroll Backus & Oettinger
  • Alberto Bernabe, Professor, John Marshall Law School
  • Honorable John M. Conroy, United States Magistrate Judge, District of Vermont
  • Andrew Delaney, Martin & Delaney Law Group
  • Jake Durell, Esq.
  • Jennifer DuxburyPratt Vreeland Kennelly Martin & White
  • Jennifer Emens-Butler, Vermont Bar Association, Communiation & Education
  • Erin GilmoreRyan Smith & Carbine
  • Bob Grundstein, Esq.
  • Mark HeymanGeneral Counsel, Logic Supply
  • Glenn Jarrett, Jarrett & Luitjens
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy, My mom
  • John LeddyMcNeil, Leddy, & Sheahan
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Kevin LumpkinSheehey Furlong & Behm
  • Lon McClintockMcClintock Law Offices
  • Jeff MessinaBergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Josh O’Hara, Appellate Public Defender
  • Nancy Rogers, South Burlington School District
  • Jim Runcie, Ouimette & Runcie
  • Chris Souliere, Burlington School District
  • Jay Spitzen, Esq.
  • Caryn WaxmanBarber & Waxman
  • Zachary York, Vermont Superior Court, Chittenden Civil & Criminal

Answers

Question 1

Earlier this week, I blogged that lawyers likely won’t go wrong if they remember the “5 Cs” of ethics.  Name at least one of the 5 Cs.

Competence, Confidentiality, Communication, Candor, Conflicts

For more, see C in Ethics? You’re on the right track

Question 2

Fill in the blank.

Generally, incivility isn’t a violation of the Rules of Professional Conduct. However, there’s a rule that makes it professional misconduct to “engage in undignified or discourteous conduct which is degrading or disrupting to ____________”

Question 3

The term “IOLTA” does not appear in the rules.  What’s the term that the rules use when referring to what we all more commonly refer to as an “IOLTA?”

Question 4

True or false.

The rule on trial publicity only applies to criminal cases.

FALSE.  Rule 3.6

Question 5

Speaking of baseball, autographs and my mom . . .

. . . in the 1970’s, she was a huge fan of the Cincinnati Reds, the so-called “Big Red Machine.”  Such a fan that not only would we go see them play in Montreal, but my mom would figure out what hotel they were in and try to get autographs from them.

True story: once in Montreal, I think it was at the Bonaventure, she spotted Joe Morgan and another player in a booth eating dinner.  She sat down with them and asked for their autographs.  The other player replied: “I don’t give autographs to people who are sitting on my sport coat.”

Joe Morgan is in the Hall of Fame.  The player in the booth with him is not.  In fact, besides suffering the indignity of having my mom sit on his sport coat, the player who was with Morgan has been banned from baseball. Disbarred, if you will.

Name him.

Pete Rose.

See the source image

Five for Friday #145

Welcome to Friday!

Not much about “145” stirs memories worthy of the intro to this column.  However, as I ruminated on the number, a thought crystallized: my mom.

Right about now, she’s swearing.  Out loud.  You see, she’s a regular reader of the Friday column and, at this moment, is both certain and pissed that I’m going to say she’s 145 years old.

Mom, as I often say, don’t think so much.

145.

If you say it “1 4  5,” well, you’ve summed up my baseball career.  As in, I was a terrible hitter:  “1 for 5” was an above average game at bat for me.

What’s this got to do with my mom?

My basement is a typical “man cave.”  Sports memorabilia dominates.  Last night, I paced back and forth across the basement trying to think of a topic for today’s blog.  As I did, I tossed a baseball from hand to hand.  It was a ball that I’d grabbed from a shelf.  Not just any old baseball, this baseball:

img_2274

1977 was my first year in Little League.  I played left field for the A’s.  That year, we beat the Dodgers in the championship game.  My mom saved the game ball, noted the date & score, and had everyone sign it.  You can see where I signed, and where Shawn Lacey signed.  The rest of my teammates & coaches signed too.

Last night, I considered whether to use the ball as a metaphor for life.  Something along the lines of how, in that moment, my teammates and I were, quite literally, the most important thing in the world to each other.  Yet, now, I can’t put faces to two of the names, and can’t remember the last time that I saw any of them.

Although somewhat melancholy, it was a great memory.  So great that I was struck by how fortunate I was to have kept the ball.

Then I realized something very important:

I only have the ball because my mom took the time to save it and have it signed.

My mom’s life is a huge story.  One so huge that I’m beyond proud of her and unable to tell the story completely here.

In short, my mom grew up in Bradford.  She moved to the big city of Burlington and, after two years, had a degree in dental hygiene. Back then, it wasn’t yet popular to help or encourage women to do anything other than what the times expected of them.  For my mom, nobody expected that she’d do anything but go back to Bradford, work for Dr. Barton, live out her life as a hygienist in the town she grew up in, and, every now and then, spend a weekend at Weirs Beach with her family.

My mom has never let others’ expectations deter her.

Yes, she spent several years working as a hygienist and was damn good at it.  She also did other things.  For instance, get elected to the School Board, get elected to two terms in the Vermont Legislature, serve as Executive Director of the Vermont Democratic party, and spend the past 25 or so years running a successful lobbying business that she started from scratch.

She also runs costume races with me:

img_0469

All of those big accomplishments?  She did them herself.  There was no movement helping her.  And I seriously doubt that her parents thought any of it made sense.

But she also made me that baseball.

The baseball that, last night, made me smile thinking about something that happened 41 years ago.  Something that I can’t really remember, but that I know, then, was my entire world.  The memory of a forgotten memory is now as valuable as the memory once was.  All thanks to my mom.

There are at least 145 million other little things that my mom has done for my brother and me, and infinitely as many that she’s done for others.  As proud as we are of her for accomplishing the big things, it’s those little things that make us so thankful that she’s our mom.

Throughout 2019, you’re going to have many chances to do a little thing for someone.

Do it.

The kid who went for 1 for 5 and who rolled his eyes as his mom ran around asking his teammates to autograph a baseball will thank you for it someday.

Thank you mom! For all the little things.

Onto the quiz!

Rules

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

Question 1

Earlier this week, I blogged that lawyers likely won’t go wrong if they remember the “5 Cs” of ethics.  Name at least one of the 5 Cs.

Question 2

Fill in the blank.

Generally, incivility isn’t a violation of the Rules of Professional Conduct. However, there’s a rule that makes it professional misconduct to “engage in undignified or discourteous conduct which is degrading or disrupting to ____________”

  • A.    opposing parties and counsel
  • B.    a tribunal
  • C.    the profession
  • D.   Trick question.  There is no such rule.

Question 3

The term “IOLTA” does not appear in the rules.  What’s the term that the rules use when referring to what we all more commonly refer to as an “IOLTA?”

  • A.  Pooled interest-bearing trust account
  • B.  Client trust account
  • C.   Operating account
  • D.   Vermont Bar Foundation account

Question 4

True or false.

The rule on trial publicity only applies to criminal cases.

Question 5

Speaking of baseball, autographs and my mom . . .

. . . in the 1970’s, she was a huge fan of the Cincinnati Reds, the so-called “Big Red Machine.”  Such a fan that not only would we go see them play in Montreal, but my mom would figure out what hotel they were in and try to get autographs from them.

True story: once in Montreal, I think it was at the Bonaventure, she spotted Joe Morgan and another player in a booth eating dinner.  She sat down with them and asked for their autographs.  The other player replied: “I don’t give autographs to people who are sitting on my sport coat.”

Joe Morgan is in the Hall of Fame.  The player in the booth with him is not.  In fact, besides suffering the indignity of having my mom sit on his sport coat, the player who was with Morgan has been banned from baseball. Disbarred, if you will.

Name him.

 

 

 

 

Monday Morning Answers #144

Monday, Monday.   Can’t trust that day.

Friday’s questions are here.  The answers follow today’s Honor Roll.  A safe & peaceful New Year to all.

Honor Roll

  • Beth DeBernardi, Administrative Law Judge, VT Dept. of Labor
  • Jake Durrell, Esq.
  • Erin GilmoreRyan Smith Carbine
  • Bob Grundstein, Esq.
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy, JB Kennedy Associates, My mom
  • Lawyers in Cars Eating Chick Fil-A
  • Lon McClintockMcClintock Law Offices
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Jeff MessinaBergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Herb Ogden, Esq.
  • Eric ParkerBauer Gravel & Farnham
  • Bob PrattPratt Vreeland Kennelly Martin & White
  • Jonathan Teller-Elsberg, Vermont Law School, Class of 2020, Staff Editor, Law Review

Answers

Question 1

I often blog about tech competence.

19 years ago today, there was great fear that we were only days away from a massive tech problem.  The Deputy Secretary of Defense warned that the problem was the “electronic equivalent of the El Niño and there will be nasty surprises around the globe.”

What is the name associated with the problem that, in fact, didn’t turn into much of a problem at all?

Y2K Bug

Question 2

Somewhat related . . .

. . . Rule 1.6 prohibits lawyers from disclosing information related to the representation of a client.  Rule 1.16(d) requires lawyers to deliver the file upon the termination of a representation.  I’ve also blogged on what to do when subpoenaed to produce a client file.

In 2016, a Minnesota court considered a dispute between a deceased person’s estate lawyers and divorce lawyers.

Client’s estate lawyers wanted the divorce file, asserting that it might contain “potentially relevant” information as to Client’s potential heirs.  Client’s divorce lawyers (who work at a different firm than the estate lawyers) refused, arguing that it had a professional obligation not to disclose “information protected by the attorney-client privilege and work product doctrine which was generated and acquired during the decedent’s lifetime.”

The Court agreed with the estate lawyers and ordered the divorce lawyers to produce the file.

The Client was a famous musician. Name the musician’s song that somewhat relates to the previous question and today’s New Year theme.

1999

See the source image

Question 3

Imagine that someone files a disciplinary complaint against a lawyer.  I screen the complaint.  The complainant alleges that she met the lawyer at a New Year’s Eve party and was offended when she overheard him refer to her as “a verbally incontinent spinster who smokes like a chimney, drinks like a fish and dresses like her mother.”  Yet, the complainant concedes that the insult caused her to resolve to make changes in her life.

Specifically, the complainant credits the lawyer’s rudeness with causing her to write as follows:

New Year’s Resolutions

These are the things I decided I would do this year.
1. Stop smoking.
2. Develop a mature
relationship with an adult man.
3. Go to the gym.
4. Be kinder and help others more.

I ended up dismissing the complaint.  Why? Because by the end of the year, the complainant withdrew it, having learned that the lawyer wasn’t as bad as she initially thought.  He hadn’t broken up her friend Daniel’s marriage, it was the other way around.  The lawyer even bought her a new journal.  Plus, the PRB doesn’t have jurisdiction over barristers.

Who filed the complaint?

Bridget Jones 

See the source image

Question 4

Regular readers know that I’m a fan of Taylor Swift and The Rolling Stones.  I’ve seen each in concert.  However, the first concert that I ever attended was U2. I saw the band in Montreal during The Joshua Tree tour.

While I’m pro Taylor Swift, and pro Rolling Stones, perhaps I’d be well-served to refer to U2 when addressing a particular section of the Rules of Professional Conduct.  New Year’s Day this time of year, or, better yet, a member of the band.

The section is critically important, but often forgotten when thinking of “legal ethics.”  Which section?

Midway thru the day on Friday, I rephrased the question to try to make it easier. I failed. Guess it’s a poor question. 

Anyway, I’m also pro Bono.

And pro pro bono.  Don’t forget!  The public service rules (6.1 – 6.5) are very important!  Here are som FAQs.

Question 5

You represent a client who has been charged with ordering a relative’s death.  You’re well aware that Rule 1.2(a) requires you to abide by your client’s wishes whether to plea, whether to waive a jury trial, and whether to testify.

Your client has opted not to plea. Now, he wants to testify in his own defense.  Specifically, he wants to testify as to what he meant when, during a New Year’s Eve party in Havana, he said to the now deceased relative:

“I know it was you Fredo. You broke my heart.  You broke my heart.”

What is your client’s name?

Bonus: Name the movie.

Michael Corleone, in The Godfather: Part II   The scene is here.

See the source image

 

Five for Friday #144

Welcome to the final Friday of 2018!

The intro will be short today.  I only have one thing to say:

Image result for images of thank you

2018 was the best year yet for this blog.  I’m grateful for each of you who takes the time to read it and to share my posts with others.

In particular, thank you for your responses to these Friday columns.  I often use the intro to share a personal story.  Your responses to those stories have proven to be my favorite part about writing this blog.  We are much more interesting and varied than the stereotypes often applied to lawyers.

Earlier this year, I bumped into a reader at a CLE.  She said something like “your Friday columns are great! It’s almost like you’re not even a lawyer!”  She meant it in a good way, and I took it as such.

But, the fact that she said it reminded me of how often we expect other lawyers to act, well, lawyerly.  How often we’re surprised that a lawyer has “regular” interests.  I think the lawyer was as surprised that I’m willing to share my nonlawyerly interests and memories.  As if there’s some taboo about breaking out of character.

If this blog accomplishes anything, I hope it’s this: don’t let the profession sap you of being a person.  I choose not to let it.  And I choose to use this space to share nonlawyerly interests that I associate with the week’s number: whether memories of a relative, pop culture, sports, or historical event.  To my readers: I hope you continue to share your memories with me.

Sharing creates ties.  The ties might not bind, but, however loosely, they connect.  Often in ways far stronger than “hey, I guess we both know what ‘summary judgment’ means.”

I’ll always be thankful for the connections forged via this blog.

Thank you! I wish you all the best in 2019.

ps: and while I share my memories, I sneaky get you to read about legal ethics!!!

Onto the New Year’s themed quiz!

Rules

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

Question 1

I often blog about tech competence.

19 years ago today, there was great fear that we were only days away from a massive tech problem.  The Deputy Secretary of Defense warned that the problem was the “electronic equivalent of the El Niño and there will be nasty surprises around the globe.”

What is the name associated with the problem that, in fact, didn’t turn into much of a problem at all?

Question 2

Somewhat related . . .

. . . Rule 1.6 prohibits lawyers from disclosing information related to the representation of a client.  Rule 1.16(d) requires lawyers to deliver the file upon the termination of a representation.  I’ve also blogged on what to do when subpoenaed to produce a client file.

In 2016, a Minnesota court considered a dispute between a deceased person’s estate lawyers and divorce lawyers.

Client’s estate lawyers wanted the divorce file, asserting that it might contain “potentially relevant” information as to Client’s potential heirs.  Client’s divorce lawyers (who work at a different firm than the estate lawyers) refused, arguing that it had a professional obligation not to disclose “information protected by the attorney-client privilege and work product doctrine which was generated and acquired during the decedent’s lifetime.”

The Court agreed with the estate lawyers and ordered the divorce lawyers to produce the file.

The Client was a famous musician. Name the musician’s song that somewhat relates to the previous question and today’s New Year theme.

Question 3

Imagine that someone files a disciplinary complaint against a lawyer.  I screen the complaint.  The complainant alleges that she met the lawyer at a New Year’s Eve party and was offended when she overheard him refer to her as “a verbally incontinent spinster who smokes like a chimney, drinks like a fish and dresses like her mother.”  Yet, the complainant concedes that the insult caused her to resolve to make changes in her life.

Specifically, the complainant credits the lawyer’s rudeness with causing her to write as follows:

New Year’s Resolutions

These are the things I decided I would do this year.
1. Stop smoking.
2. Develop a mature
relationship with an adult man.
3. Go to the gym.
4. Be kinder and help others more.

I ended up dismissing the complaint.  Why? Because by the end of the year, the complainant withdrew it, having learned that the lawyer wasn’t as bad as she initially thought.  He hadn’t broken up her friend Daniel’s marriage, it was the other way around.  The lawyer even bought her a new journal.

Who filed the complaint?

Question 4

Regular readers know that I’m a fan of Taylor Swift and The Rolling Stones.  I’ve seen each in concert.  However, the first concert that I ever attended was U2. I saw the band in Montreal during The Joshua Tree tour.

While I’m pro Taylor Swift, and pro Rolling Stones, perhaps I’d be well-served to refer to U2 when addressing a particular section of the Rules of Professional Conduct.  New Year’s Day this time of year, or, better yet, a member of the band.

The section is critically important, but often forgotten when thinking of “legal ethics.”  Which section?

Question 5

You represent a client who has been charged with ordering a relative’s death.  You’re well aware that Rule 1.2(a) requires you to abide by your client’s wishes whether to plea, whether to waive a jury trial, and whether to testify.

Your client has opted not to plea. Now, he wants to testify in his own defense.  Specifically, he wants to testify as to what he meant when, during a New Year’s Eve party, he said to the now deceased relative:

“I know it was you Fredo. You broke my heart.”

What is your client’s name?

Bonus: name the movie.

 

Monday Morning Answers #143

Welcome to Monday!

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

Honor Roll

Answers

Question 1

You represent George.  He is concerned that his elderly father has been acting irrational and has come to you for advice on a potential involuntary guardianship.  George informs you that he’s been worried for months, but that the last straw was when his father challenged him to a fight during the “feats of strength” aspect of the family’s recent holiday celebration.

For now, the information relating to your representation of George is protected by Rule 1.6.  Including the holiday.  But in order to protect it, you have to know what it is.  What holiday were George and his father celebrating?

FESTIVUS

See the source image

Question 2

Lawyer represents Client.  Client is charged with kidnapping Clarice and assaulting a gallant suitor who attempted to free her.  Client is also charged with the felony murder of one Yukon Cornelius.  Yukon is presumed dead.  He disappeared off a cliff during the daring rescue mission of Clarice and her suitor that Yukon carried out with an heretofore incompetent dentist.

But lo’ and behold, the prosecutor learns that Yukon is alive and well!  As required by Rule 3.8(d), prosecutor notifies Lawyer and, then, as required by Rule 3.1, dismisses the felony murder charge.

Lawyer works diligently to convince prosecutor to drop the remaining charges.  After all, despite a monstrous reputation, Client is winning in the court of public opinion.  If only because Client’s physical stature comes in handy during the holidays.

Who is Lawyer’s client?

Bumble The Abominable Snow Monster

See the source image

Question 3

Attorney is a public defender.  She’s been assigned to represent Willie T. Stokes.  Willie is a con man. He and a co-defendant, Marcus “Elf” Skidmore, have been charged with staging elaborate robberies of department stores the past several Christmas Eves.

Marcus asks Attorney to represent him too.  Attorney is mindful of Comments 29-33 to Rule 1.7: the comments that discuss the ethics of “common representation.”

Yet, just as she starts to re-read the comments, Attorney wakes up. It was all a dream!  She doesn’t really represent Willie T. Stokes, he’s a fictional character!

What movie must Attorney have watched before she fell asleep?

BAD SANTA

See the source image

Question 4

One of my favorite unethical fictional lawyers is Barry Zuckerkorn.  He’s the Bluth family’s incompetent lawyer in Arrested Development. Zuckerkorn is played by Henry Winkler who, of course, also played Arthur Fonzarelli in Happy Days.

Speaking of Fonzie, there’s a well-known holiday song that includes the follow lyrics:

Guess who eats together at the Carnegie Deli

Bowzer fro Sha Na Na and Arthur Fonzarelli”

Name the song.

The Chanukah Song, Adam Sandler

See the source image

Question 5

Michael consults Attorney for advice. Michael wants to know whether he has any recourse against employees who, in Michael’s opinion, did not buy sufficiently nice gifts for the office’s “Secret Santa” party, a party that Michael turned into a “Yankee Swap” after receiving an oven mitt from his secret santa.  Michael complains that the gift he received was cheap compared to the one he bought.  The one he bought cost $400 and was intended to Ryan.

Mindful of my advice that a good way to avoid disciplinary complaints is to manage client expectations, Attorney candidly tells Michael that he has no claim. The rules of the Yankee Swap were clear: spend no more $20.  Michael assumed the risk by spending more.

 

Part 1:  What did Michael buy?

Part 2:  Who ended up with the $400 item that Michael intended for Ryan?

In Christmas Party (The Office)Michael Scott bought a video iPod that he intended for Ryan Howard. Pam Beesley ended up with it, but then traded it to Dwight Schrute for the teapot that Jim Halpert meant for Pam.

See the source image

 

Five for Friday #143

Welcome to Friday!

Now, before I get to the quiz, I’m compelled to share the story of a trial that raises concerns as to the ethics of the lawyers & judges involved.

Doris hired Kris to work at a store that she, Doris, managed.  Kris proved popular with the customers and helped to increase sales.  Yet, Kris was not popular with some of the store’s executives.  They were especially irked that he’d referred a customer to a competing store.  They also doubted that he was who he claimed to be.

Management ordered Kris to meet with the company psychologist, Dr. Sawyer. The meeting did not go well for Kris.  He hit the psychologist with a cane.  Claiming assault and feigning an injury more severe than it was, Dr. Sawyer arranged to have Kris detained in a psychiatric unit.

Involuntary commitment proceedings ensued.  The prosecutor’s case focused on the allegation that Kris’s claim as to his identity was so irrational as to warrant commitment.  The case relied almost entirely on two things: (1) Kris’s claim that he was who he claimed to be; and (2) testimony from Doris’s 6-year old daughter Susan that included a critical hearsay statement made by none other than the prosecutor.

Fred represented Kris. Fred liked Kris, and believed in him, but also had a crush on Doris.  Fred took the case, in part, to spend more time with Doris.

For a while, it appeared as if Kris would be committed.  Then, two things turned the case.

First, Fred helped to organize a scheme by which officials from the U.S. Postal Service agreed to help to influence the judge, the Honorable Henry X. Harper. Postal officials delivered an incredible number of letters from those who believed in Kris to chambers, along with a message that the post office considered Kris to be who he claimed to be.

Second, a local politician met ex parte with Judge Harper and informed him his career would be over if he ordered Kris to be committed.

Judge Harper got the message loud & clear.  He ruled that a state court had no business challenging the federal government (the post office’s) conclusion that Kris was who he claimed to be.  Thus, Kris was not committed.

Sounds good, right? Well, yes, if you’re willing to ignore potential violations of, among other rules:

  • Rule 3.1 – meritorious claims
  • Rule 3.7 – lawyer as witness
  • Rule 3.8 – special responsibilities of a prosecutor
  • Rule 1.7 – conflict of interest
  • Rule 3.5(a) – influencing the judge by means prohibited by law
  • many of the section of Rule 8.4
  • a host of the canons of judicial conduct

Some of you have probably figured out who Kris claimed to be.

For those of you haven’t, Kris claimed to be Santa Claus.  And this isn’t a real-life case: it’s the plot from Miracle on 34th Street.

Thank you Bridget Asay!

See the source image

Onto the quiz!

Rules

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

Question 1

You represent George.  He is concerned that his elderly father has been acting irrational and has come to you for advice on a potential involuntary guardianship.  George informs you that he’s been worried for months, but that the last straw was when his father challenged him to a fight during the “feats of strength” aspect of the family’s recent holiday celebration.

For now, the information relating to your representation of George is protected by Rule 1.6.  Including the holiday.  But in order to protect it, you have to know what it is.  What holiday were George and his father celebrating?

Question 2

Lawyer represents Client.  Client is charged with kidnapping Clarice and assaulting a gallant suitor who attempted to free her.  Client is also charged with the felony murder of one Yukon Cornelius.  Yukon is presumed dead.  He disappeared off a cliff during the daring rescue mission of Clarice and her suitor that Yukon carried out with an heretofore incompetent dentist.

But lo’ and behold, the prosecutor learns that Yukon is alive and well!  As required by Rule 3.8(d), prosecutor notifies Lawyer and, then, as required by Rule 3.1, dismisses the felony murder charge.

Lawyer works diligently to convince prosecutor to drop the remaining charges.  After all, despite a monstrous reputation, Client is winning in the court of public opinion.  If only because Client’s physical stature comes in handy during the holidays.

Who is Lawyer’s client?

Question 3

Attorney is a public defender.  She’s been assigned to represent Willie T. Stokes.  Willie is a con man. He and a co-defendant, Marcus “Elf” Skidmore, have been charged with staging elaborate robberies of department stores the past several Christmas Eves.

Marcus asks Attorney to represent him too.  Attorney is mindful of Comments 29-33 to Rule 1.7: the comments that discuss the ethics of “common representation.”

Yet, just as she starts to re-read the comments, Attorney wakes up. It was all a dream!  She doesn’t really represent Willie T. Stokes, he’s a fictional character!

What movie must Attorney have watched before she fell asleep?

Question 4

One of my favorite unethical fictional lawyers is Barry Zuckerkorn.  He’s the Bluth family’s incompetent lawyer in Arrested Development. Zuckerkorn is played by Henry Winkler who, of course, also played Arthur Fonzarelli in Happy Days.

Speaking of Fonzie, there’s a well-known holiday song that includes the follow lyrics:

Guess who eats together at the Carnegie Deli

Bowzer fro Sha Na Na and Arthur Fonzarelli”

Name the song.

Question 5

Michael consults Attorney for advice. Michael wants to know whether he has any recourse against employees who, in Michael’s opinion, did not buy sufficiently nice gifts for the office’s “Secret Santa” party, a party that Michael turned into a “Yankee Swap” after receiving an oven mitt from his secret santa.  Michael complains that the gift he received was cheap compared to the one he bought.  The one he bought cost $400 and was intended to Ryan.

Mindful of my advice that a good way to avoid disciplinary complaints is to manage client expectations, Attorney candidly tells Michael that he has no claim. The rules of the Yankee Swap were clear: spend no more $20.  Michael assumed the risk by spending more.

 

Part 1:  What did Michael buy?

Part 2:  Who ended up with the $400 item that Michael intended for Ryan?

 

 

:

 

 

 

Monday Morning Answers #142

Welcome to Monday!

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

The verdict is in & it was unanimous: at least among my readers, Die Hard is a Christmas movie.  Those responses are at the end of this post.

Honor Roll

  • Matthew AndersonPratt Vreeland Kennelly & White
  • Karen AllenKaren Allen Law
  • Penny Benelli, Dakin & Benelli
  • Beth DeBernardi, Administrative Law Judge, VT Dept. of Labor
  • Andrew Delaney, Martin & Delaney
  • Jennifer Emens-Butler, Director of  Education & Communication, Vermont Bar Assoc.
  • Erin GilmoreRyan Smith Carbine
  • Bob Grundstein, Esq.
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Patrick Kennedy, MyWebGrocer, First Brother
  • Shannon LambPratt Vreeland Kennelly Martin & White
  • Jeff MessinaBergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Lon McClintockMcClintock Law Offices
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Herb Ogden, Esq.
  • Jim Runcie, Ouimette & Runcie
  • Jonathan Teller-Elsberg, Vermont Law School, Class of 2020, Staff Editor, Law Review
  • Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

With respect to the Rules of Professional Conduct, the word “collected” is used in connection with:

Question 2

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

  • “by its express language, the rule applies to any lawyer who is participating in or has participated in the investigation or litigation of a matter.”

Given my statement, Lawyer called to discuss the rule on:

  • A.  Client confidences
  • B.  Trust accounting
  • C.  Diligence
  • D.  Trial Publicity.  Rule 3.6

Question 3

You’re at a CLE.  You’re vaguely aware that I’m talking about a rule that authorizes a lawyer “to take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client . . .”

That portion of my CLE deals with:

  • A.  Ethics in Bankruptcy Law
  • B.  A client who lied while testifying
  • C.  A client who suffers from a diminished capacity.  Rule 1.14(b)
  • D.  A client who died.

Question 4

A comment to one of the rules states that “a lawyer may accept a gift from a client, if the transaction meets general standards of fairness.  For example, a simple gift such as a present given at a holiday or as a token of appreciation is permitted.”

  • A.   False.  It’s unethical to accept any form of gift from a client.
  • B.   True.  It’s a comment to the rule on fees.
  • C.   True.  It’s a comment to one of the conflicts rules. Rule 1.8, Comment [6]
  • D.   There are lawyers who have clients who give them gifts?

Question 5

Bruce Willis starred in Die Hard.

Earlier today I blogged about a real-life prosecutor who was disbarred after becoming a bit too involved in media coverage of cases that his office was handling.

Many years ago, Bruce Willis played journalist Peter Fallow in a movie that focused on the criminal prosecution of Sherman McCoy, a Wall Street-type played by Tom Hanks.  McCoy stood accused of a hit & run with death resulting.

Morgan Freeman starred as presiding Judge Leonard White.  The judge was convinced that the prosecutor was using the case to bring media attention to the prosecutor’s re-election bid.

The trial ended in favor of the defense, after Willis’s character supplied the defense with a secret tape recording. On the recording, the defendant’s mistress, Maria Ruskin as played by Melanie Griffith, admitted to having been the driver on the night in question.

The movie was adopted from a famous novel of the same name.

What’s the movie/novel?

See the source image

Reader Responses to Is Die Hard a Christmas Movie?

  • Of course Die Hard is a Christmas movie.  It has RUN DMC’s song “Christmas in Hollis” in it, which is one of my favorite Christmas songs ever!  Normally I prefer west coast rap, but that song is a classic!! C’mon, get with the program.  😊
  • [my spouse] and I watch Die Hard every Christmas.  Definitely Christmas movie.

    And our old office assistant said Joyeux Noel was her favorite movie. I’d never heard of it at the time. She loaned it to me…did I ever give it back? No.  Whoops!! And I never watched it.

  • Die Hard is definitely a Christmas movie! The only reason he is there is because of Christmas! Side note: one of the students in a class I’m teaching thanked me for explaining an important plot line: that the notes they were stealing were Bearer paper thus not traceable to the thieves. The Bitcoin of that era.
  • Of course it’s a Christmas movie! I can’t believe this is even a debate!
  • I have always maintained that Die Hard is a Christmas movie.  I’ve had many raging debates on it.  Bruce Willis, and Steven  de Souza (screenwriter) disagree on it.

    Willis says no.  deSouza says yes, and presents evidence.  Lastly, de Souza wrote it.  Jim Carrey can say that The Grinch is not a christmas story, however, as long as Dr Seuss maintains that it is,  it in fact is.  (not that this was ever an argument just pointing out that an actor’s thoughts can in no way belie a creator or author’s intent).  Here’s my proof:

     

 

 

Five for Friday #142

Welcome to Friday!

If you’ve been following the news, you know there’s a great debate consuming our nation.  Even CNN’s Jake Tapper has weighed in.

Is Die Hard a Christmas movie?

Image result for die hard images

I have no opinion. So, today, I’m providing an additional opportunity to make the weekly honor roll: send me a short email making the case one way or another.  For background information, check out this post that the Hollywood Reporter ran earlier this week.

Now, as someone who often speaks & blogs on the duty of competence, lost in the post about the Die Hard debate is a nugget that raises troubling questions about Vermonters’ competence.

Not as lawyers.  As movie fans!

The post mentions a study to determine the most popular holiday movie in each state.  The results are here.  47 states chose movies I’ve heard of.  3 did not.

  • Alaska – The Apartment
  • Michigan – The Holiday Inn
  • Vermont – Joyeux Noel

Ummm, what?

I did a little research on the google.  Turns out, Alaska & Michigan aren’t too far off base.  The Apartment won several Academy Awards and The Holiday Inn soundtrack includes White Christmas.  Each movie has multiple famous people associated with it. In other words, reasonable choices.

Joyeux Noel?  Not so much.  Seriously Vermont, what gives?

Without looking, can any of you give me one detail about the plot or cast?  Even the Wikipedia entry didn’t jog my memory.

  • Aside: the cast included Diane Kruger.  She also starred in my favorite movie of all-time: Inglorious Basterds.  Prior to its release, The Sound of Music was my favorite.  My mom introduced me to the Trapp family at a young age, and I watched the movie every holiday season.  I’m quite adept at karaoking The Lonely Goatherd.
  • Aside to the aside: I just realized that my two favorite movies are set in World War II.  Weird.

Anyhow, where was I?  Seems I’ve lost whatever point I was trying to make with this blog.

Presumably because I’m consumed with despair after realizing that when it comes to holiday movies, Vermonters seem to have violated the duty of competence.

Or, more likely, maybe I’m the incompetent one. Maybe I don’t know as much about movies as I thought I did.

Nah!

Onto the quiz!

Rules

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

Question 1

With respect to the Rules of Professional Conduct, the word “collected” is used in connection with:

  • A.  Funds
  • B.  Information relating to the representation
  • C.  Documents & Papers
  • D.  Evidence

Question 2

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

  • “by its express language, the rule applies to any lawyer who is participating in or has participated in the investigation or litigation of a matter.”

Given my statement, Lawyer called to discuss the rule on:

  • A.  Client confidences
  • B.  Trust accounting
  • C.  Diligence
  • D.  Trial Publicity

Question 3

You’re at a CLE.  You’re vaguely aware that I’m talking about a rule that authorizes a lawyer “to take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client . . .”

That portion of my CLE deals with:

  • A.  Ethics in Bankruptcy Law
  • B.  A client who lied while testifying
  • C.  A client who suffers from a diminished capacity
  • D.  A client who died.

Question 4

A comment to one of the rules states that “a lawyer may accept a gift from a client, if the transaction meets general standards of fairness.  For example, a simple gift such as a present given at a holiday or as a token of appreciation is permitted.”

  • A.   False.  It’s unethical to accept any form of gift from a client.
  • B.   True.  It’s a comment to the rule on fees.
  • C.   True.  It’s a comment to one of the conflicts rules.
  • D.   There are lawyers who have clients who give them gifts?

Question 5

Bruce Willis starred in Die Hard.

Earlier today I blogged about a real-life prosecutor who was disbarred after becoming a bit too involved in media coverage of cases that his office was handling.

Many years ago, Bruce Willis played journalist Peter Fallow in a movie that focused on the criminal prosecution of Sherman McCoy, a Wall Street-type played by Tom Hanks.  McCoy stood accused of a hit & run with death resulting.

Morgan Freeman starred as presiding Judge Leonard White.  The judge was convinced that the prosecutor was using the case to bring media attention to the prosecutor’s re-election bid.

The trial ended in favor of the defense, after Willis’s character supplied the defense with a secret tape recording. On the recording, the defendant’s mistress, Maria Ruskin as played by Melanie Griffith, admitted to having been the driver on the night in question.

The movie was adopted from a famous novel of the same name.

What’s the movie/novel?