Monday Morning Honors #261

Happy Monday! 

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

Honor Roll

• Evan Barquist, Montroll Oettinger & Barquist
• Alberto Bernabe, Professor, UIC School of Law
• Beth DeBernardi, Administrative Law Judge, Vermont Department of Labor
• Benjamin Gould, Paul Frank + Collins
• Robert Grundstein
• Keith Kasper, McCormick, Fitzpatrick, Kasper and Burchard
• John T. Leddy, McNeil, Leddy, Sheehan
• Pam Loginsky, Deputy Prosecuting Attorney, Pierce County, Tacoma, WA
• Kevin Lumpkin, Sheehey Furlong & Behm
• Brad Martin, Baystate Financial
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Jeffrey Messina, Messina Law
• Hal Miller, Hawaii Agency Underwriting Counsel, First American Title Insurance
• James Remsen, Master Planner, Parker Hannafin
• Keith Roberts, Darby Kolter & Roberts
• Jason Warfield, J.D.
• The Honorable John Valente, Vermont Superior Judge
• Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

Which of the 7 Cs of Legal Ethics refers specifically to funds & property?

COMMINGLING.

Tip:  V.R.Pr.C. 1.15(a) requires a lawyer to keep funds & property of clients and third persons separate from the lawyer’s own.  There is an exception for funds deposited in trust “for the sole purpose of paying service charges or fees on [the] account, but only in an amount necessary for that purpose.”  The most common cause of “commingling” a lawyer’s failure to remove an earned fee from trust.  Remember: as I pointed out in Trust Accounting in a Nutshell, commingling can also result from improper handling of a fee that is paid in advance and that complies with Rule 1.5(f).

Question 2

Lawyer called me with an inquiry.  I listened, then responded “one of the situations that requires it is when continued representation will result in a violation of the Rules of Professional Conduct.”

Given my response, what does “it” refer to?  Whether Lawyer must _______:

• A.   self-report to Disciplinary Counsel.
• B.   disclose confidential information over a client’s objection.
• C.   withdraw from representing a client.  V.R.Pr.C. 1.16(a)(1).
• D.   put Lawyer’s malpractice insurance carrier on notice of a potential claim.

Question 3

Attorney represents Client.  At the outset of the relationship, Client advanced a fee that Attorney billed against.  When the matter resolved, Client was so pleased that Client lauded Attorney’s virtues in a public comment posted to Attorney’s firm’s social media page.

What do the rules require Attorney to keep for 6 years?

• A.  Client’s confidences and secrets.
• B.  Records of funds held on behalf of Client.  V.R.Pr.C. 1.15(a)(1).
• C.  A “copy’ of the social media page because it’s an “advertisement.”
• D.  A copy of Client’s file.

Answer (A) is not correct.  Unless disclosure is permitted or required by the rules, a former client’s confidences must be kept forever.

Answer (C) is not correct. The rule requiring lawyers to keep copies of advertisements was repealed long ago. And, when it was in place, it required ads to be kept for 2 years.

Answer (D) is not correct.  There is no requirement for a lawyer to keep a “copy” of a client’s file.  Rather, Rule 1.169d) requires a lawyer to deliver “papers and property” to which the client is entitled upon the termination of the representation. 

Question 4

There are two types of cases in which a contingent fee is prohibited.  Name them.

• V.R.Pr.C. 1.5(d)(2) prohibits a contingent fee for representing a defendant in a criminal case.
• V.R.Pr.C. 1.15(d)(1) prohibits a fee “which is contingent upon the securing of a divorce or upon or upon the amount of spousal maintenance or support, or property settlement in lieu thereof.”

NOTE: the rule ALLOWS contingent fees “in domestic relations matters which involve the collection of (i) spousal maintenance after a final judgment is entered, or (ii) child support and maintenance supplement arrearages due after final judgment, provided that the court approves the reasonableness of the fee agreement.  This can be an excellent tool to provide access to legal services.

Question 5

Earlier this week, the Academy of Arts & Television continued its embarrassing tradition of snubbing Better Call Saul.  Yet again, the show did not receive a single Primetime Emmy.  In protest, and because Jimmy McGill/Saul Goodman is my favorite ethically challenged fictional lawyer, I’m devoting Question 5 to the show for the second time in three quizzes. 

Doing so is quite timely.  Tomorrow is ___________ Day.  The word that properly fills in the blank is quite relevant to the legal profession.  It’s also the answer to this question:

In both Better Call Saul and Breaking Bad, what’s on the wallpaper in Saul’s office? 

Here’s a hint that might help people who have never seen the show.

Today is September 16. On this day in 1830, Oliver Wendell Holmes, Sr. (father of Supreme Court Justice Oliver Wendell Holmes, Jr.) wrote a poem. The poem is widely considered to have saved a US Naval vessel from being decommissioned. The vessel, which is now the oldest commissioned ship in the navy, is named after the answer to Question 5.

Saul’s wallpaper shows The Constitution of the United States.   Saturday was Constitution Day.  And Oliver Wendell Holmes’s Old Ironsides is a poem about the USS Constitution.

Five for Friday #261

Welcome to Friday and the 261^st legal ethics quiz!

Rules

•  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

Which of the 7 Cs of Legal Ethics refers specifically to funds & property?

Question 2

Lawyer called me with an inquiry.  I listened, then responded “one of the situations that requires it is when continued representation will result in a violation of the Rules of Professional Conduct.”

Given my response, what does “it” refer to?  Whether Lawyer must _______:

• A.   self-report to Disciplinary Counsel.
• B.   disclose confidential information over a client’s objection.
• C.   withdraw from representing a client.
• D.   put Lawyer’s malpractice insurance carrier on notice of a potential claim.

Question 3

Attorney represented Client.  At the outset of the relationship, Client advanced a fee that Attorney deposited into trust and billed against.  When the matter resolved, Client was so pleased that Client lauded Attorney’s virtues in a public comment posted to Attorney’s firm’s social media platforms.

What do the rules require Attorney to keep for 6 years?

• A.  Client’s confidences and secrets.
• B.  Records of funds held on behalf of Client.
• C.  A “copy” of the comment on the social media platforms because it is an “advertisement.”
• D.  A copy of Client’s file.

Question 4

There are two types of cases in which a contingent fee is prohibited.  Name them.

Question 5

Shout out to my friend Brad Martin!

Earlier this week, the Academy of Television Arts & Sciences continued its embarrassing tradition of snubbing Better Call Saul.  Yet again, the show did not receive a single Primetime Emmy.  In protest, and because Jimmy McGill/Saul Goodman and Kim Wexler are my favorite ethically challenged fictional lawyers, I’m devoting Question 5 to the show for the second time in three quizzes. 

Doing so is quite timely.  Tomorrow is ___________ Day.  The word that properly fills in the blank is very much a part of the legal profession.  It’s also the answer to this question:

In both Better Call Saul and Breaking Bad, what’s on the wallpaper in Saul’s office? 

Here’s a hint that might help people who have never seen the show.

Today is September 16. On this day in 1830, Oliver Wendell Holmes, Sr. (father of Supreme Court Justice Oliver Wendell Holmes, Jr.) wrote a poem. The poem is widely considered to have saved a US Naval vessel from being decommissioned. The vessel, which is now the oldest commissioned ship in the navy, is named after the answer to Question 5.

Monday Morning Honors #260

Happy Monday! 

Thanks to all who wished the First Brother well!  He made it from Dunmore to Gettysburg, where he’ll spend this week camping near the battleground before continuing the trek to Savannah on Friday. 

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

Honor Roll

• Evan Barquist, Montroll Oettinger & Barquist
• Alberto Bernabe, Professor, UIC School of Law
• Amy Butler, Amy Butler Law
• Robert Grundstein
• Keith Kasper, McCormick, Fitzpatrick, Kasper and Burchard
• Jeanne Kennedy, JB Kennedy Associates, Mother (of the) Blogger
• Patrick Kennedy, Amazon Web Services, First Brother
• John T. Leddy, McNeil, Leddy, Sheehan
• Pam Loginsky, Deputy Prosecuting Attorney, Pierce County, Tacoma, WA
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Susan McManus, Office of the Public Defender, Bennington County
• Jeffrey Messina, Messina Law
• James Remsen, Master Planner, Parker Hannafin
• Keith Roberts, Darby Kolter & Roberts
• James Runcie, Ouimette & Runcie
• Nikki Stevens, Firm Administrator, Langrock Sperry & Wool
• Jonathan Teller-Elsberg, Sheehey Furlong & Behm
• Jason Warfield, J.D.
• Jack Welch, Esq.
• Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

Of the 7Cs of Legal Ethics, which specifically mentions “information related to the representation” in the rule that governs that C?

CONFIDENTIALITY.  V.R.Pr.C. 1.6(a) states that “a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation, or the disclosure is required by paragraph (b) or permitted by paragraph (c).

The phrase “information related to the representation” is important.  Remember, as Comment [3] makes clear, Rule 1.6 “applies not only to matters communicated in confidence by the client, but to all information relating to the representation, whatever the source.”

Question 2

Yesterday I blogged about an order in which a New York trial judge sanctioned lawyers for uncivil and obstructive conduct during a deposition. 

Let’s imagine a similar incident involving a deposition that’s taken in a Vermont matter.  One of Vermont’s Rules of Professional Conduct makes it a violation for a lawyer to “engage in undignified or discourteous conduct which is degrading or disruptive to a tribunal.” 

Does the rule apply at a deposition?

• A.           No.  A comment to the rule specifically leaves control of depositions to the trial courts.
• B.           No, but a comment to the rule cautions lawyers against conduct that would be prohibited in court.
• C.           Yes.  This is Rule 3.5(d).  As Comment [5] points out, the rule applies to “any proceeding of a tribunal.”  Rule 1.0(m) includes defines “tribunal” to include a deposition.

Question 3

Fill in the blank.  The same word goes in each blank.  What is it?

There’s a rule that sets out a lawyer’s duties when dealing with an __________ person.  The duties include not stating or implying that the lawyer is “disinterested,” and correcting any misunderstanding that the lawyer knows or reasonably should know that the __________ person has about the lawyer’s role.  A comment to the rule states that the “rule does not prohibit a lawyer from negotiating terms of a transaction or settling a dispute with the __________ person.”

Unrepresented.  This is V.R.Pr.C. 4.3.

Question 4

Lawyer called me with an inquiry.  I listened, then responded that “a comment to the rule, states that ‘matters are substantially related if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the new matter.’”

Lawyer didn’t contact me to discuss confidentiality.  Rather, given my response, Lawyer contacted me because Lawyer was concerned about, what?

A CONFLICT OF INTEREST between a client (or prospective client) and a former client.  V.R.Pr.C. 1.9 prohibits a lawyer from representing a client whose interests are materially adverse to the interests of a former client in a matter that is the same as or substantially related to the matter in which the lawyer represented the former client.

Question 5

When the First Brother arrives in Savannah, he’ll be just over 200 miles southeast of Monticello, GA.  A movie that the American Bar Association has ranked as one of the Top 3 of all-time was filmed in Monticello. 

While most fans associate the movie with a neighboring state and its mud, in fact, the convenience store and courthouse that feature so prominently in the film are in Georgia.  In 2019, then federal judge Merrick Garland wrote an opinion in which he made numerous references to the movie, including a statement that the lead character “taught a master class in cross-examination.”

Name the movie.

MY COUSIN VINNY.

The Sac-O-Suds and Jasper County Historic Courthouse are in Monticello, Georgia.

Five for Friday #260

Welcome to Friday and the 260^th #fiveforfriday legal ethics quiz!

I suppose I could concoct an intro that involves 260 or 8/26.  Alas, that would require effort, an ingredient not exactly coursing through my veins this morning.  I’m posting from the shores of Lake Dunmore, enjoying coffee and the late stages of the sunrise.  Putting too much effort into an intro seems inconsistent with the vibe, especially a mere 48 hours removed from my post Don’t Stresslax.

So, instead, I’ll use this space to wish fare winds and a following sea to The First Brother. Tonight is his last in Vermont, as tomorrow he officially sets out for Savannah, where adventure and temperate winters await. He closed on his Vermont place Monday and has spent the week here at Dunmore, resting before pulling his camper south.  While I will miss him, I’m happy for him and look forward to posting January and February quizzes from the new abode.

As I blogged the prior paragraph, a bit of effort entered by body. 

According to my research, it’s 1084.6 miles from Burlington to Savannah.  The First Brother’s condo was slightly south of downtown, so let’s call his upcoming trek 1084 miles.

260 + 826 = 1084.

To the First Brother!

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 consider sharing the quiz with friends & colleagues
• Share on social media.  Hashtag it – #fiveforfriday

Question 1

Of the 7Cs of Legal Ethics, which specifically mentions “information related to the representation” in the rule that governs that C?

Question 2

Yesterday I blogged about an order in which a New York trial judge sanctioned lawyers for uncivil and obstructive conduct during a deposition. 

Let’s imagine a similar incident involving a deposition that’s taken in a Vermont matter.  One of Vermont’s Rules of Professional Conduct makes it a violation for a lawyer to “engage in undignified or discourteous conduct which is degrading or disruptive to a tribunal.” 

Does the rule apply at a deposition?

• A.           No.  A comment to the rule specifically leaves control of depositions to the trial courts.
• B.           No, but a comment to the rule cautions lawyers against conduct that would be prohibited in court.
• C.           Yes.

Question 3

Fill in the blank.  The same word goes in each blank.  What is it?

There’s a rule that sets out a lawyer’s duties when dealing with an __________ person.  The duties include not stating or implying that the lawyer is “disinterested,” and correcting any misunderstanding that the lawyer knows or reasonably should know that the __________ person has about the lawyer’s role.  A comment to the rule states that the “rule does not prohibit a lawyer from negotiating terms of a transaction or settling a dispute with the __________ person.”

Question 4

Lawyer called me with an inquiry.  I listened, then responded that “a comment to the rule, states that ‘matters are substantially related if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the new matter.’”

Lawyer didn’t contact me to discuss confidentiality.  Rather, given my response, Lawyer contacted me because Lawyer was concerned about, what?

Question 5

When the First Brother arrives in Savannah, he’ll be just over 200 miles southeast of Monticello, GA.  A movie that the American Bar Association has ranked as one of the Top 3 of all-time was filmed in Monticello. 

While most fans associate the movie with a neighboring state and its mud, in fact, the convenience store and courthouse that feature so prominently in the film are in Georgia.  In 2019, then federal judge Merrick Garland wrote an opinion in which he made numerous references to the movie, including a statement that the lead character “taught a master class in cross-examination.”

Name the movie.

Monday Morning Honors #259

Happy Monday!  Only one more before Labor Day.  Make sure to enjoy the last few weeks of the unofficial end of summer!

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

Many thanks to all who informed me that it’s perfectly okay, and perhaps desirable, to clip the flowers growing on my basil. 

Honor Roll

• Alberto Bernabe, Professor, UIC School of Law
• Martha Bonneau, Blogger’s Aunt
• Beth DeBernardi, Administrative Law Judge, Vermont Department of Labor
• Robert Grundstein
• Glenn Jarrett, Jarrett/Hoyt
• Keith Kasper, McCormick, Fitzpatrick, Kasper and Burchard
• Jeanne Kennedy, JB Kennedy Associates, Mother (of the) Blogger
• Mark Kennedy, Retired, Father of the Blogger
• Patrick Kennedy, Amazon Web Services, First Brother
• John T. Leddy, McNeil, Leddy, Sheehan
• Jonathan Teller-Elsberg, Sheehey Furlong & Behm
• Jason Warfield, J.D.

Answers

Question 1

I often discuss the 7 Cs of Legal Ethics. At a recent seminar, I used a quote from George Bernard Shaw to discuss one of the 7 Cs.  In my view, Shaw’s quote accurately captures a dynamic that, in my experience, leads clients to file disciplinary complaints.  Fill in the blank with the correct C.

“The greatest problem in communication is the illusion that it has been accomplished.”

I agree.  Many disciplinary complaints aren’t caused so much by a lack of communication as they are by miscommunication: the lawyer thinking the matter was explained to the client when it wasn’t.

Question 2

While I haven’t blogged much lately, one of my recent posts highlighted a real-life example of how reconciliation helped a Vermont firm to stop trust account fraud.  It was the third such example I’d blogged about this year. 

What’s the rule on reconciling pooled interest-bearing trust accounts?  It must occur:

• A.           “regularly.”
• B.           “quarterly.”
• C.           “in a manner consistent with generally accepted accounting principles.”
• D.           “timely.”  The rule goes on to state that “timely reconciliation means, at a minimum, monthly reconciliation of such accounts.” 

My posts on reconciliation as a tool to prevent trust account fraud are here, here, and here.

Question 3

Saul represents Client.  Kim represents Opposing Party.  Unbeknownst to Lawyer, Client contacts Attorney to discuss the subject of the representation.  Does the rule allow Kim to discuss the matter with Client?

• A.           No.  See, V.R.Pr.C. 4.2, Comment [3] (“The rule applies even though the represented person initiates or consents to the communication.)
• B.           Yes, because a party is always free to contact opposing counsel.
• C.           Yes.  The comments make clear that, in this situation, Client has consented to the communication. 
• D.           Wait.  Kim & Saul are still licensed to practice.

Question 4

Lawyer called me with an inquiry.  I listened, then replied.  “You’re definitely out.  Whether your conflict is imputed to all depends on whether it presents a significant risk of materially limiting the representation of the client by the other lawyers in your firm.”

Given my response, Lawyer’s conflict involved:

• A.           A personal interest.   The question refers to Vermont’s rule on imputed conflicts of interest.  My response, and answer A, reflect the standard set out in V.R.Pr.C. 1.10(a).  By contrast, situations B and C are always imputed.
• B.           A former client.
• C.           A current client.
• D.           Lawyer’s paralegal.

Question 5

Questions 3 and 4 don’t do it justice.  So, while this one might only interest me, I’d be disappointed in myself if I didn’t use this week’s Question 5 to reference Monday’s series finale of my favorite “law” show of all-time.

Here is a license plate that hangs in my garage.

I’d love to add signs from “Palm Coast Sprinklers,” “Ice Station Zebra Associates,” or this one:

In real-life, audiences first saw the license plate on a different show.  However, on the two shows’ fictional timeline, the plate first appeared in the show that ended this week — on a car driven by the eponymous lawyer of questionable ethics.  While easy to like the lawyer — and the show’s other lawyers — it’s tough to believe that many of them still have their law licenses.

Name the show whose final episode aired earlier this week.

BETTER CALL SAUL

Bonus: in the same show, another license plate featured prominently in several episodes. It was on a Jaguar owned by a lawyer mentioned in Question 4. What was the license plate?

Howard Hamlin’s Jaguar bore the plate NAMAST3

Five for Friday #259

Welcome to Friday and the 259th legal ethics quiz.

I’ve struggled to find the motivation to blog over the past few months.  Today hasn’t been much different.  However, this morning, I managed to create this video, which will serve as this week’s official intro.  I’m finally getting around to posting the blog that goes with it.  In the video, I discuss why I’m not in the garage, my new hobby, and lucky numbers.

Yes, lucky numbers.

When it comes to numbers, I consider many to be lucky and even more to be unlucky.  As I mention in the video, I don’t know why I’m so much more than just a little stitious about numbers.  Well, it turns out, science itself agrees that some numbers are, in fact, lucky!

The best part?

One of the numbers officially recognized as “lucky” by science & mathematicians?

259!!!

Onto the quiz!

Rules

•  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 consider sharing the quiz with friends & colleagues
• Share on social media.  Hashtag it – #fiveforfriday

Question 1

 I often discuss the 7 Cs of Legal Ethics. At a recent seminar, I used a quote from George Bernard Shaw to discuss one of the 7 Cs.  In my view, Shaw’s quote accurately captures a dynamic that, in my experience, leads clients to file disciplinary complaints.  Fill in the blank with the correct C.

“The greatest problem in ____________ is the illusion that it has been accomplished.”

Question 2

While I haven’t blogged much lately, one of my recent posts highlighted a real-life example of how reconciliation helped a Vermont firm to stop trust account fraud.  It was the third such example I’d blogged about this year.

What’s the rule on reconciling pooled interest-bearing trust accounts?  It must occur:

• A.  “regularly.”
• B.  “quarterly.”
• C.  “in a manner consistent with generally accepted accounting principles.”
• D.  “timely.”  The rule goes on to state that “timely reconciliation means, at a minimum, monthly reconciliation of such accounts.”

Question 3

 Saul represents Client.  Kim represents Opposing Party.  Unbeknownst to Saul, Client contacts Kim to discuss the subject of the representation.  Does the rule allow Kim to discuss the matter with Client?

• A. No.
• B.  Yes, because a party is always free to contact opposing counsel.
• C.  Yes.  The comments make clear that, in this situation, Client has consented to the communication.
• D. Wait.  Kim & Saul are still licensed to practice?

Question 4

Lawyer works at the firm Hamlin, Hamlin, McGill.  Lawyer called me with an inquiry.  I listened, then replied.  “You’re definitely out.  Whether your conflict is imputed to rest of HHM depends on whether it presents a significant risk of materially limiting the representation of the client by the other lawyers at the firm.”

Given my response, Lawyer’s conflict involved:

• A.  A personal interest of Lawyer.
• B.  A former client.
• C. A current client.
• D. Lawyer’s paralegal.

Question 5

Questions 3 and 4 don’t do it justice.  So, while this one might only interest me, I’d be disappointed in myself if I didn’t use this week’s Question 5 to reference Monday’s series finale of my favorite “law” show of all-time.

Here is a license plate that hangs in my garage.

I’d love to add signs from “Palm Coast Sprinklers,” “Ice Station Zebra Associates,” or this one:

In real-life, audiences first saw the license plate on a different show.  However, on the two shows’ fictional timeline, the plate first appeared in the show that ended this week — on a car driven by the eponymous lawyer of questionable ethics.  While easy to like the lawyer — and the show’s other lawyers — it’s tough to believe that many of them still have their law licenses.

Name the show whose final episode aired earlier this week.

Bonus: in the same show, another license plate featured prominently in several episodes. It was on a Jaguar owned by a lawyer mentioned in Question 4. What was the license plate?

 

 

 

 

 

Monday Morning Honors #258

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

Honor Roll

• Karen Allen, Karen Allen Law
• Penny Benelli, Dakin & Benelli
• Alberto Bernabe, Professor, UIC School of Law
• Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labo
• Andy Delaney, Martin Delaney & Ricci
• Cary Dube, Bergeron Paradis & Fitzpatrick
• Erin Gilmore, Ryan Smith & Carbine
• Benjamin Gould, Paul Frank + Collins
• Harrison Gregoire, JD Candidate, Syracuse Law; Summer Intern, Gale & McCallister
• Robert Grundstein
• Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
• John T. Leddy, McNeil Sheehan & Leddy
• Kevin Lumpkin, Sheehey Furlong & Behm
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Jeff Messina, Messina Law
• Hal Miller, Hawaii Agency Underwriting Counsel, First American Title
• Team MOB
  • Evan Barquist & Lescha Carpenter, Montroll Oettinger & Barquist
• Nikki Stevens, Firm Administrator, Langrock Sperry & Wool
• Jonathan Teller-Elsberg, Sheehey Furlong & Behm
• The Honorable John Valente, Vermont Superior Judge
• Jason Warfield, J.D.

 Answers

Question 1

According to the Rules of Professional Conduct, which of the 7 Cs of Legal Ethics is implicated when a lawyer provides “financial assistance to a client in connection with pending or contemplated litigation?”

Conflicts.  The quote is from paragraph (e) of Rule 1.8 – Conflict of Interest – Current Clients – Specific Rules

Question 2

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

“Be wary of disclosing too much. I think it’s best to cite to the specific provision of the rule that either requires it or allows it. Then, if the court asks for additional detail, provide it. I’ll send you a case from Tennessee in which a lawyer was publicly reprimanded for disclosing too much information in a motion, even though the trial court granted the motion.”

What did Attorney call to discuss?  Filing ______

• A.  a motion to withdraw.  For more, see Stop Making Noise.
• B.  an ex parte motion.
• C.  a motion to disqualify the judge.
• D.  a motion to disqualify opposing counsel.

Question 3

 There’s a rule that governs “pooled interest-bearing trust accounts.”  Nobody I know calls such accounts by their formal name.  Anyhow, what is a pooled interest-bearing trust account?

• A. unethical and prohibited by the rule.
• B. an account that’s better known as an “operating account.”
• C. an account that generates interest that a lawyer must remit to the client.
• D. an account that generates interest that a lawyer must remit to the Vermont Bar Foundation. Rule 1.15B – Pooled Interest-Bearing Trust Accounts

Question 4

 Later today, I’m presenting at the Defender General’s Annual Training.  While I don’t plan to address this rule, there’s a rule that states that a criminal defense lawyer “may nevertheless so defend the proceeding as to require that every element of the case be established.”  Generally, what does the rule prohibit?

• A.  Representing a client at a trial in which the lawyer will be a necessary witness.
• B.  Frivolous claims and contentions.  Rule 3.1 – Meritorious Claims and Contentions
• C.  Conflicts of Interest.
• D.  False statements of material fact to a tribunal.

 Question 5

 William Saxbe was born on June 24, 1916. He was a lawyer who served as Ohio’s Attorney General, a United States Senator, and United States Attorney General.

In 1966, while serving as Ohio Attorney General, Saxbe argued before the United States Supreme Court.  The case involved Sam Sheppard, a doctor who had been convicted of murdering his wife.  The US Supreme Court reversed the conviction, citing, among other things, a “carnival atmosphere” that had permeated the trial and the trial judge’s bias against the defendant.  In a retrial, Dr. Sheppard was acquitted.

In the U.S. Supreme Court and at the retrial, Dr. Sheppard was represented by a well-known lawyer who has since been disbarred.  During the retrial, the lawyer argued that the prosecution’s case was “ten pounds of hogwash in a 5-pound bag.”

The case inspired a novel and a hit movie starring Harrison Ford and Tommy Lee Jones.

Name the movie and the now disbarred lawyer who represented Dr. Sheppard.

The Fugitive & F. Lee Bailey

Five for Friday #258

Welcome to Friday and the 258^th legal ethics quiz.

A few years ago, I used the intro to a June quiz to urge readers to take advantage of summer sooner rather than later. Too often, it seems that I don’t get my summer started until waking up on Bennington Battle Day only to realize that Labor Day is just around the corner. This week, a few thoughts combined to remind me of that post.  As the thoughts have marinated, they’ve caused me to wonder if summer, or at least a northern summer, is but a metaphor for life.  Hopefully, I can explain.

Earlier this week, my mom shared a story of having recently called a childhood friend.  The friend lives in a care home now, her memory not what it once was.  She’s happy, and remembered my mom, but she also thought that it was August.  Watching and listening, I sensed that my mom was torn — glad to have talked with her friend, but sad that the person she spoke with was no longer the same person as the person my mom had been friends with all these years.

Oddly, the next day, I read an essay by a person whose college friend recently passed while in his mid-30s. The author described how the two didn’t see each other much after graduation, but always vowed to “stay in touch.”  They did, if only getting together once a year.  The author expressed joy and gratitude at having stayed in touch, because even though the logistics were difficult at times, the memories made by finding and making time to get together are now the only thing he has to remember his friend.  Unstated, but stated well, was the point that while we frequently tell old friends “Let’s stay in touch,” we don’t.

Which brings me to Dave Laberge.

I met Dave in 2^nd grade.  We’ve been best friends ever since. Dave’s that friend with whom I experienced so many “firsts.”  Communion, bike ride to the quarry, varsity game, night in a bar with (and without) a legal ID.  I’m sure there are many others.  I could go on & on about Dave and our adventures, like I did for too long during my best man speech a few years ago, but I won’t.  Those adventures aren’t the point.

The point is that this week, I realized that I haven’t seen or heard from Dave in a few years.  He lives in the Kingdom, where he and his brother own & operate Will-O-Wood Campground. I used to go up at least once a year, and Dave would always text or call when he was in town to visit family.  I’m not sure how we let that stop.  Thinking about it, I resolved that this summer will include a trek to the campground.

And that gets me back to my idea that, perhaps, summer is a metaphor for life.

Like the summers at Will-O-Wood, life is short.  Soon enough, our longest friends won’t be in our lives anymore — whether a bit too far away to visit, in a home not really knowing who we are, or gone.  Our relationships with those friends will become memories, like summer does once Labor Day passes.

So, maybe in addition to making sure to get out and do “things” this summer, another idea might be to seek out that old friend with whom you assumed you’d always be in touch but aren’t.  Because no matter your season in life, there’s still time to make summer memories.

Oh, and by the way, it’s June 24^th.  Which means happy birthday to my old friend Dave Laberge!

Onto the quiz!

Rules

•  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 consider sharing the quiz with friends & colleagues
• Share on social media.  Hashtag it – #fiveforfriday

Question 1

According to the Rules of Professional, which of the 7 Cs of Legal Ethics is implicated when a lawyer provides “financial assistance to a client in connection with pending or contemplated litigation?”

Question 2

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

“Be wary of disclosing too much. I think it’s best to cite to the specific provision of the rule that either requires it or allows it. Then, if the court asks for additional detail, provide it. I’ll send you a case from Tennessee in which a lawyer was publicly reprimanded for disclosing too much information in a motion, even though the trial court granted the motion.”

What did Attorney call to discuss?  Filing ______

• A.  a motion to withdraw.
• B.  an ex parte motion.
• C.  a motion to disqualify the judge.
• D. motion to disqualify opposing counsel.

Question 3

There’s a rule that governs “pooled interest-bearing trust accounts.”  Nobody I know calls such accounts by their formal name.  Anyhow, what is a pooled interest-bearing trust account?

• A.  unethical and prohibited by the rule.
• B.  an account that’s better known as an “operating account.”
• C.  an account that generates interest that a lawyer must remit to the client.
• D.  an account that generates interest that a lawyer must remit to the Vermont Bar Foundation.

Question 4

 In honor of the presentation I’m giving later today at the Defender General’s Annual Training.

While I don’t plan to address this rule, there’s a rule that states that a criminal defense lawyer “may nevertheless so defend the proceeding as to require that every element of the case be established.”  Generally, what does the rule prohibit?

• A.  Representing a client at a trial in which the lawyer will be a necessary witness.
• B.  Frivolous claims and contentions.
• C.  Conflicts of Interest.
• D.  False statements of material fact to a tribunal.

 Question 5

 William Saxbe was born on June 24, 1916. He was a lawyer who served as Ohio’s Attorney General, a United States Senator, and United States Attorney General.

In 1966, while serving as Ohio Attorney General, Saxbe argued before the United States Supreme Court.  The case involved Sam Sheppard, a doctor who had been convicted of murdering his wife.  The US Supreme Court remanded for a new trial, citing, among other things, a “carnival atmosphere” that had permeated the first trial and the trial judge’s bias against the defendant.

In the U.S. Supreme Court and at the retrial, Dr. Sheppard was represented by a well-known lawyer.  During the retrial, the lawyer argued that the prosecution’s case was “ten pounds of hogwash in a 5-pound bag.”  The jury apparently agreed: Dr. Sheppard was acquitted.  Later, in 2001, the lawyer was disbarred in Florida and, in 2014, denied admission to Maine’s bar.

The case inspired a novel and a hit movie starring Harrison Ford and Tommy Lee Jones.

Name the movie and the now disbarred lawyer who represented Dr. Sheppard.

Monday Morning Honors #257

Ignore the timestamp!  It’s morning o’clock somewhere!

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

Honor Roll

• Alberto Bernabe, Professor, UIC School of Law
• Andy Delaney, Martin Delaney & Ricci
• Benjamin Gould, Paul Frank + Collins
• Robert Grundstein
• Tammy Heffernan, Esq.
• Glenn Jarrett, Jarrett & Luitjens
• Deb Kirchwey, Law Office of Deborah Kirchwey
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Hal Miller, Hawaii Agency Underwriting Counsel, First American Title
• Lisa Penpraze, Assistant United States Trustee, Department of Justice
• Nikki Stevens, Firm Administrator, Langrock Sperry & Wool
• Jonathan Teller-Elsberg, Sheehey Furlong & Behm
• The Honorable John Valente, Vermont Superior Judge
• Jason Warfield, J.D.
• Thomas Wilkinson, Jr., Cozen O’Connor

 Answers

Question 1

When I’m presenting on the 7 Cs of Legal Ethics, which C am I discussing when I make this statement?

• “Generally, the duty is more relaxed when negotiating with opposing counsel than it is when making statements of material fact or law to a tribunal.”

CANDOR.  Compare Rule 4.1 – Truthfulness in Statements to Others and  Rule 3.3 – Candor Toward the Tribunal

Question 2

Fill in the blank. I understand that, arguably, each is correct.  However, I’m looking for the exact word used in the rule.

Lawyer called me with an inquiry. I listened, then replied “the rule only prohibits you from representing the client at trial if you are a(n) __________ witness.”

• A.  Fact.
• B.  Expert
• C.  Necessary. Rule 3.7 – Lawyer as Witness
• D.  Adverse. 

Question 3

 Each of these four phrases in the same rule.  However, the rule treats one differently than the other three.  Which phrase does the rule treat differently?

• A.  The representation will result in violation of the rules of professional conduct.
• B. The lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.
• C. The lawyer is discharged.
• D.  The representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client.

 In situations A-C, withdrawal is mandatory. In situation D, withdrawal is permissive.  See, Rule 1.16 – Declining or Terminating Representation

Question 4

At several seminars this month, I’ve resolved to review Vermont’s rule on “lateral transfers.”  In my opinion, the rule unnecessarily inhibits mobility and disproportionately impacts our newer lawyers.  What’s the rule on lateral transfers relate to?

• A.  Trust account management.
• B.  Trust account scams.
• C.  Conflicts that arise when a lawyer moves from one private firm to another.  See, Rule 1.10 – Imputation of Conflicts of Interest – General Rule
• D. Conflicts that arise when someone other than the client pays for a lawyer to represent the client.

Question 5

On June 17, 1994, a lawyer who would eventually go on to become one of the founders of Legal Zoom held a press conference.  The lawyer opened the press conference with a statement intended for the lawyer’s client, saying to the client:

• “Wherever you are, for the sake of your family, for the sake of your children, please surrender immediately.”

Then, the lawyer recounted the events of a day that had begun with the lawyer intending to facilitate the client’s surrender to law enforcement, only to have the client and a friend disappear while the lawyer, the client, and others were waiting for police to arrive.

Finally, the lawyer asked another lawyer, who was also a close friend of the client, to read a letter from the client.  Many perceived it to be a suicide letter. In the end, it was not.  While you might not remember the lawyer who read the letter, you’re most certainly aware of many of the members of the lawyer’s family.  In the 21^st century, you can’t help but not to be aware of them. 

In 2016’s Emmy Award winning series about the client’s case and eventual trial, the lawyer who began the press conference, the lawyer who read the note, and the client were played by John Travolta, David Schwimmer, and Cuba Gooding, Jr.

Name the lawyers and the client.

Robert Shapiro opened the press conference.

Robert Kardashian read the letter.

O.J. Simpson was the client.

A video of the press conference is here.

Breaking News Alert!! In fact there IS a legal ethics quiz this week!

Welcome (very belatedly) to Friday and the 257^th legal ethics quiz!

With CLE season in full-swing, I’ve not blogged much lately and wasn’t going to post a quiz today.  Further, I don’t believe I’ve ever published a quiz that, like today’s, is the week’s only post. Rather, the Friday quizzes have served as a sort of dessert that follows the week’s meal of substantive posts on legal ethics and professional responsibility.

Then, a few minutes ago, I was struck by this thought: “Mike, what would we have written about in this week’s intro had we posted a quiz?”  I replied: “Self, great minds truly think alike! I was just asking us the same thing!”  So, we fired up the Google Machine to research “257” and “June 17.”

Aside: candidly, I was hoping that my high school graduation had fallen on June 17.  If it had, I would’ve posted this picture from my senior year:

Alas, no such luck. Either with the date or with maintaining that flow as I aged!

However, and much more seriously, June 17 is an important day in legal ethics.  50 years ago today, “The Plumbers” broke into the Democratic National Committee’s headquarters at the Watergate complex.  The rest is history.

What’s that got to do with legal ethics?   Excellent question!  Here’s the answer.

In 2014, the ABA Journal published “Watergate’s lasting legacy is to legal ethics reform, says John Dean.”  As the post notes, the role that lawyers played in the scandal resulted in:

• the ABA directing law schools seeking accreditation to require that students take a class in legal ethics before graduating;
• states requiring applicants for admission to the bar to pass the MPRE; and,
• states mandating continuing legal education in ethics and professional responsibility.

The impact went further.

In 2012, the ABA Journal posted The Lawyers of Watergate: How a “3^rd-Rate” Burglary Provoked New Standards for Lawyer Ethics.  The article outlines how Watergate eventually resulted in the ABA’s 1983 vote to replace the Model Code of Professional Responsibility with the Model Rules of Professional Conduct.  The Vermont Rules of Professional Conduct are based on the ABA Model Rules.

The 2012 post also briefly delves into the history of Rule 1.13.  The rule governs the conduct of lawyers who represent or are employed by organizations, including government organizations.  Post-Watergate, the famed Kutak Commission recommended “that lawyers representing an organization be allowed to disclose confidential information concerning officers or employees who are violating the law.”

I could go on and on about Watergate and the resulting impact on legal ethics and professional responsibility.  But who wants that on a Friday afternoon?  Nobody, that’s who.

So, I’ll leave you with two things.

First, to learn more about the legal ethics fallout from Watergate, fire up your own Google Machine.

Second, given Watergate’s direct impact on the narrow area of law that I practice, I’d violate my duties of competence and diligence by NOT posting today.

Onto the quiz!

Rules

•  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 consider sharing the quiz with friends & colleagues
• Share on social media.  Hashtag it – #fiveforfriday

Question 1

 When I’m presenting on the 7 Cs of Legal Ethics, which C am I discussing when I make this statement?

• “Generally, the duty is more relaxed when negotiating with opposing counsel than it is when making statements of material fact or law to a tribunal.”

 Question 2

Fill in the blank. I understand that, arguably, each is correct.  However, I’m looking for the exact word used in the rule.

Lawyer called me with an inquiry. I listened, then replied “the rule only prohibits you from representing the client at trial if you are a(n) __________ witness.”

• A.  Fact.
• B.  Expert.
• C.  Necessary.
• D.  Adverse

Question 3

Each of these four phrases in the same rule.  However, the rule treats one differently than the other tree.  Which phrase does the rule treat differently?

• A.  The representation will result in violation of the rules of professional conduct.
• B.  The lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.
• C.  The lawyer is discharged.
• D.  The representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client.

Question 4

 At several seminars this month, I’ve resolved to review Vermont’s rule on “lateral transfers.”  In my opinion, the rule unnecessarily inhibits mobility and disproportionately impacts our newer lawyers.  What’s the rule on lateral transfers relate to?

• A.  Trust account management.
• B.  Conflicts that arise from someone a lawyer knew/worked with before becoming a lawyer.
• C.  Conflicts that arise when a lawyer moves from one private firm to another.
• D.  Conflicts that arise when someone other than the client pays for a lawyer to represent the client.

Question 5

On June 17, 1994, a lawyer who would later become one of the founders of Legal Zoom held a press conference.  The lawyer opened the press conference with a statement intended for the lawyer’s client, saying to the client:

• “Wherever you are, for the sake of your family, for the sake of your children, please surrender immediately.”

Then, the lawyer recounted the events of a day that had begun with the lawyer intending to facilitate the client’s surrender to law enforcement, only to have the client and a friend disappear while the lawyer, the client, and others were waiting for police to arrive.

Finally, the lawyer asked another lawyer, who was also a close friend of the client, to read a letter from the client.  Many perceived it to be a suicide letter. In the end, it was not.  While you might not remember the lawyer who read the letter, you’re most certainly aware of many of the members of the lawyer’s family.  In the 21^st century, you can’t help but not to be aware of them.

In 2016’s Emmy Award winning series about the client’s case and eventual trial, the lawyer who began the press conference, the lawyer who read the note, and the client were played by John Travolta, David Schwimmer, and Cuba Gooding, Jr.

Name the lawyers and the client.