FIve for Friday

Five for Friday #155

Michael 1 Comment

From the shores of Lake Morey, welcome to the first #fiveforfriday of spring!

It’s definitely in the air:

IMG_2493

Somewhere.

The Vermont Bar Association’s 62nd Mid-Year Meeting opened last night.  The evening’s seminar focused on wellness and the State Action Plan.  A fantastic dialogue ensued.

Many members of an engaged audience shared personal experiences with the various aspects of the profession that trigger anxiety and stress.  One was raised more often than I expected:  civility.

Several folks mentioned that dealing with antagonistic and rude opposing attorneys is a significant source of stress.  Simply, we don’t always treat each other very well.

What can we do about it?

I get it: in an adversarial  system that includes duties of loyalty and diligence to clients who are shouldering serious problems, it can be difficult.  But it’s not impossible.  And sometimes the little things can make the all difference.

Last night, a lawyer shared a story. He recently went to a mediation with a client.  The opposing lawyer was one he’d known for decades, but hadn’t caught up with in a long time.  The mediation was stressful, and the lawyer continued to feel the effects of the stress that evening.

Then an email popped in.  It was from the opposing lawyer and said (and I paraphrase) “Hey, it was good to see you today. Hope you’ve been well.”

The lawyer who shared the story talked about how much it meant to receive the e-mail and how it relieved a good deal of the stress of the day.  He concluded by saying “it mattered to me.”

Which reminds me:

“One day, an old man was walking along a beach that was littered with thousands of starfish that had been washed ashore by the high tide. As he walked he came upon a young boy who was eagerly throwing the starfish back into the ocean, one by one.

Puzzled, the man looked at the boy and asked what he was doing. Without looking up from his task, the boy simply replied, “I’m saving these starfish, Sir”.

The old man chuckled aloud, “Son, there are thousands of starfish and only one of you. What difference can you make?”

The boy picked up a starfish, gently tossed it into the water and turning to the man, said,

“I made a difference to that one!”

A while back, I posted Don’t Be a Jerk.  As should be obvious, it’s a post in which I argue that we can do our jobs without being jerks to each other.  Indeed, nothing in the rules is incompatible with civility.  As a comment to Rule 1.3 says:

  •  “[t]he lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved with courtesy and respect.”

Courtesy and respect.  We need more of each in the air.

Make a difference to someone today.  It matters.

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

If the client gives informed consent, or, if doing so is impliedly necessary to carry out the representation, a lawyer does not violate the rules by:

  • A. disclosing information related to the representation
  • B.  charging an unreasonable fee
  • C.  A & B
  • D.  None of the above

Question 2

When a lawyer opens a pooled interest-bearing trust account, the rules requires the lawyer to notify the bank that:

  • A.  Interest must be paid to the Vermont Bar Foundation.
  • B.  ACH transactions are prohibited on such accounts.
  • C.  the lawyer cannot deposit her own funds in the account, even to cover bank charges
  • D.  All of the above

Question 3

Attorney represents an organization in a matter.

Opposing Counsel knows that Attorney represent the organization in the matter.

Without Attorney’s permission, Opposing Counsel discusses the matter with a former employee of the organization.

Which is most accurate with respect to the Rules of Professional Conduct?

  • A.  Opposing Counsel violated the rules.
  • B.  Opposing Counsel did not violate the rules.
  • C.  Attorney violated the rules.

Question 4

Lawyer called me with an inquiry.  My response included telling Lawyer that the rule suggests that she must take “reasonable remedial measures.”  Most likely, Lawyer called to discuss the rule on:

  • A.  Competence
  • B.  Trust accounting
  • C.   Unauthorized Practice of Law
  • D.  Candor to a Tribunal

Question 5

There’s a lawyer who has been in the news an awful lot the past few years.  Last month, he was forced to give up control over his own law firm after being accused of bankruptcy fraud.

Specifically, he is alleged to have used various & nefarious accounting maneuvers to hide over $10 million in legal fees to keep from having to pay them to his firm’s creditors.

Name the lawyer.

 

Monday Morning Answers #155

Michael Leave a comment

I’m about to sanction myself for failing to detect a conflict.

Long ago, I agreed to speak at Thursday’s VBA Mid-Year Meeting.  The seminar falls on the same day that UVM plays an NCAA tournament game within driving distance.

Nice schedule-checking Mike.

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

Honor Roll

Answers

Question 1

True or False.

A lawyer cannot be disciplined for trying, but failing, to violate the Rules of Professional Conduct.  That is, discipline can only be imposed for an actual violation.

Aside: imagine being too incompetent to be incompetent?

FALSE.  Rule 8.4(a).

Question 2

Which does not belong with the others?

  • A.  the time & labor required, as well as the skills requisite to perform the legal services properly
  • B.   continued representation will result in a violation of the rules.
  • C.   the lawyer is discharged.
  • D.   the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.

Answer “A” is one of the factors to be considered when analyzing the reasonableness of a fee.  See, Rule 1.5.  The other 3 require withdrawal pursuant to Rule 1.16(a).

Question 3

Lawyer called me with an inquiry.  I listened, then said: “it depends, did you receive information that could be significantly harmful to that person?”

My words “that person” refers to:

A.  a prospective client who met with, but did not retain, Lawyer.  See, Rule 1.18
B.  a prospective juror.  
C.  an opposing party who mistakenly emailed Lawyer
D.  a current client who intends to commit a crime

Question 4

Generally, a lawyer “shall not acquire a proprietary interest” in the client’s cause of action or in the subject matter of the litigation that the lawyer is conducting for the client.  There are two exceptions.

Name 1.

This is Rule 1.8(i)

  1. A lien authorized by law to secure expenses or a fee; or,
  2. A contingent fee in a civil case.

Question 5

Rule 1.1 requies an attorney to provide clients with competent representation.

Although he did not prevail on his argument, one of the more competent self-represented litigants in movie history was an Irish kid from South Boston.   He represented himself at an arraignment on a charge that he had assaulted a police officer, even arguing his own motion to dismiss:

  • Character:  There is lengthy legal precedent, your honor, going back to 1789, whereby a defendant can claim self-defense against an agent of the government, if that act is deemed a defense against tyranny, a defense of liberty.
  • Prosecutor:  Your honor. . .
  • Character:  Henry Lloyd Beecher in Proverbs from the Plymouth Pulpit, 1887 says, and I quote . . .
  • Prosecutor:  1887? This is the 20th century, your honor.
  • Character:  Excuse me, excuse me.
  • Prosecutor:  You’re making a mockery of the Court!
  • Character:  I’m afforded the right to speak in my own defense, sir, by the Constitution of the United States.  This is the same document that guarantees my liberty.
  • Prosecutor:  Hey, don’t tell me about the Constitution of the United States.
  • Character:  Now, liberty, in case you’ve forgotten, is the soul’s rights to breath.  And when it cannot take a long breath, laws are girded too tight.  Without liberty, man is a syncope.
  • Prosecutor:  Man is a what?
  • Character:  Ibid,  your honor.
  • Judge:  Son, my turn. I’ve been sitting here 10 minutes now looking over this rap sheet of yours.   I just can’t believe it.  June ’93, Assault.  September ’93, Assault. Grand Theft Auto in February ’94, where you apparently defended yourself by citing Free Property Rights of Horse and Carriage from 1798.  January ’95, Impersonating an Officer, Mayhem, Resisting. All overturned.  I’m also aware that you’ve been through several foster homes.  The State removed you from three due to physical abuse.  You know, another judge might care, but you hit a cop.  You’re going in. Motion to dismiss is denied.  $50,000 bail.
  • Character:  Thank you your honor.

Soon after the arraignment, Character was released to the supervision of a co-worker, an MIT professor.  Character’s conditions of release required him to attend therapy sessions with the professor’s college roommate, a psychology teacher at a local community college.

Name the movie.

GOOD WILL HUNTING

See the source image

 

 

Five for Friday #154

Michael 1 Comment

Less is often more.  That’s one of the reasons that I’m a fan of Irish understatement.

If you’re not familiar with Irish understatement, here’s how we refer to 30 years of devastating violence that, depending on one’s point of view, was either a freedom fight or terrorism: “The Troubles.”  Enough said.

Anyhow, I don’t know the names of many of my favorite Irish thinkers.  Most are people with whom I shared space in dimly lit pubs, doing our best to keep conversation to a minimum before heading our separate ways.

One of my favorites, however, is someone who I never met: Oscar Wilde. To me, Wilde’s  insight, intelligence and wit make him the master of Irish understatement.  I won’t bore you with Wilde quotes.  But one strikes me as particularly relevant to topics oft discussed in this space:

  • “There are only two tragedies in life: one is not getting what one wants, and the other is getting it.”

I suppose we could debate Wilde’s meaning.  Some might interpret it as a “tragedy” to achieve everything, only to realize that’s there’s nothing left to do.  You know, reaching a metaphorical mountaintop only to ask “is this it?”  Fair interpretation, but not mine.

To me, the message is a question that we must ask on the way to getting everything we want: “at what cost?” And the message applies to (at least) two different aspects of professional responsibility.

First, civility is a professional responsibility.  As I’ve blogged, Don’t Be a Jerk.  

I’m not the only lawyer who spreads that message. Twice a year, the Vermont Bar Association puts on its Basic Skills seminar. It’s an opportunity for new lawyers to satisfy the CLE requirement associated with admission to the bar.  I join many other dedicated lawyers to present on different topics and practice areas.

Almost to a person, we include the same message: Vermont is a small state.  The lawyer who is on the other side is one with whom you will likely deal often throughout your career.  Be civil, or it could come back to haunt you.  Stated differently, sure, you got what you wanted in THAT case, but at what cost?  The reputational hit might not be “tragic,” but it ain’t great either.

The second area to which Wilde’s quote applies is attorney wellness. I will not spend paragraphs rehashing the dozens of posts in which I’ve addressed the staggering toll that the profession takes on us.  Suffice to ask, at what cost to your emotional, physical, and mental health are you willing to achieve career goals?  Look no further than here and here for numbers that reflect the tragedy.

Oops.

I can hear the pins dropping.

Leave it to an Irish basketball coach who pines for summer to go all melancholy on a weekend that includes (1) the first sunny, warm Friday in ages; (2) UVM basketball playing for a spot in the NCAA tournament; and (3) St. Patrick’s Day!

I want to end this post on a more uplifting note.  Thankfully, there’s plenty of Irish-related material to do just that.

For instance, Wilde also said “true friends stab you in the front.”  I think it’s funny to use that quote in a post that appears on the Ides of March.  Et tu, Brute?!?!

Even more uplifting, especially during Lent, let me leave you with a story that reminds me of my brother and our Irish-Catholic relatives & friends:

shamrock

Michael moved into a tiny hamlet in County Kerry, walked into the pub and promptly ordered 2 beers. The bartender raised his eyebrows, but served Michael two beers, which he drank quietly at a table, alone. The next evening Michael again ordered and drank two beers at a time. Soon the entire town was whispering about the Man Who Orders Two Beers.

Eventually, the bartender asked what the town wanted to know. “I don’t mean to be prying but folks around here are wondering why your always order 2 beers at a time?”

“Ah, it’s odd, I know,” Michael replied. “You see, I have a brother, Patrick, back in the US. We promised each other that we would always order an extra beer, whenever we would partake, as a way of keeping up the family bond.” The bartender and the whole town were pleased with Michael’s reverence for family. 

One day Michael came in and ordered only 1 beer. The bartender served it with a heavy heart. Word flew around the hamlet quickly. Prayers were offered for Patrick’s soul. The next day, after Michal again ordered only 1 beer, the bartender said “folks around here, me first of all, want to offer our condolences to you for the death of your brother”

Michael pondered for a moment then replied, “I appreciate it, but I’m happy to report that Patrick is alive and well. It’s just that I, myself, gave up drinking for Lent.”

Onto the quiz and GO CATS GO!

Rules

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception – but one that is loosely enforced – #5 isn’t open book.  (“loosely enforced” = “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

True or False.

A lawyer cannot be disciplined for trying, but failing, to violate the Rules of Professional Conduct.  That is, discipline can only be imposed for an actual violation.

Aside: imagine being too incompetent to be incompetent?

Question 2

Which does not belong with the others?

  • A.  the time & labor required, as well as the skills requisite to perform the legal services properly
  • B.   continued representation will result in a violation of the rules.
  • C.   the lawyer is discharged.
  • D.   the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.

Question 3

Lawyer called me with an inquiry.  I listened, then said: “it depends, did you receive information that could be significantly harmful to that person?”

My words “that person” refers to:

A.  a prospective client who met with, but did not retain, Lawyer.
B.  a prospective juror
C.  an opposing party who mistakenly emailed Lawyer
D.  a current client who intends to commit a crime

Question 4

Generally, a lawyer “shall not acquire a proprietary interest” in the client’s cause of action or in the subject matter of the litigation that the lawyer is conducting for the client.  There are two exceptions.

Name 1.

Question 5

Rule 1.1 requies an attorney to provide clients with competent representation.

Although he did not prevail on his argument, one of the more competent self-represented litigants in movie history was an Irish kid from South Boston.   He represented himself at an arraignment on a charge that he had assaulted a police officer, even arguing his own motion to dismiss:

  • Character:  There is lengthy legal precedent, your honor, going back to 1789, whereby a defendant can claim self-defense against an agent of the government, if that act is deemed a defense against tyranny, a defense of liberty.
  • Prosecutor:  Your honor. . .
  • Character:  Henry Lloyd Beecher in Proverbs from the Plymouth Pulpit, 1887 says, and I quote . . .
  • Prosecutor:  1887? This is the 20th century, your honor.
  • Character:  Excuse me, excuse me.
  • Prosecutor:  You’re making a mockery of the Court!
  • Character:  I’m afforded the right to speak in my own defense, sir, by the Constitution of the United States.  This is the same document that guarantees my liberty.
  • Prosecutor:  Hey, don’t tell me about the Constitution of the United States.
  • Character:  Now, liberty, in case you’ve forgotten, is the soul’s rights to breath.  And when it cannot take a long breath, laws are girded too tight.  Without liberty, man is a syncope.
  • Prosecutor:  Man is a what?
  • Character:  Ibid,  your honor.
  • Judge:  Son, my turn. I’ve been sitting here 10 minutes now looking over this rap sheet of yours.   I just can’t believe it.  June ’93, Assault.  September ’93, Assault. Grand Theft Auto in February ’94, where you apparently defended yourself by citing Free Property Rights of Horse and Carriage from 1798.  January ’95, Impersonating an Officer, Mayhem, Resisting. All overturned.  I’m also aware that you’ve been through several foster homes.  The State removed you from three due to physical abuse.  You know, another judge might care, but you hit a cop.  You’re going in. Motion to dismiss is denied.  $50,000 bail.
  • Character:  Thank you your honor.

Soon after the arraignment, Character was released to the supervision of a co-worker, an MIT professor.  Character’s conditions of release required him to attend therapy sessions with the professor’s college roommate, a psychology teacher at a local community college.

Name the movie.

 

 

 

Monday Morning Answers #153

Michael Leave a comment

Welcome to Monday!

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

Honor Roll

Answers

Question 1

This morning, Client shared information with Lawyer that caused Lawyer reasonably to believe that Client intends to commit suicide tonight.  Lawyer wants to disclose Client’s intent to someone who can intervene.  Under Vermont’s rules, Lawyer

  • A.   must not disclose client’s intent
  • B.   must disclose client’s intent
  • C.   must disclose client’s intent, unless client affirmatively told Lawyer not to
  • D.   may disclose client’s intent

In Vermont, disclosure is permissive.  See, Rule 1.6(c)(1), Comment [10]

Question 2

If a lawyer is holding funds to which both a client and third person claim interests, the lawyer must:

  • A.  disburse the funds as directed by the client
  • B.   hold the funds until the dispute is resolved.  Rule 1.15(e)
  • C.   pay the funds into court
  • D.  withdraw from representing the client

For more on how to handle competing interests to funds held in trust, see my blog post Client Funds: when do third parties have valid interests?

Question 3

Which is correct? A or B?

In an ex parte proceeding, a lawyer ____________ a duty to inform the tribunal of all material facts that will assist the tribunal to make an informed decision, even if the facts are adverse to the lawyer’s client.

  • A.   has.  
  • B.   does not have.

I blogged on this last week:  Candor in an ex part proceeding

Question 4

Lawyer called me with an inquiry. I listened, then said “it’s okay as long as

  • the client gives informed consent,
  • the person doesn’t interfere with your professional judgment or relationship with your client, and,
  • you do not share information with the person that is otherwise confidential and protected from disclosure by Rule 1.6.”

Given my response, what did Lawyer want to know if the person could do?

  • A.   retain Lawyer
  • B.   meet with Lawyer to share information helpful to the client’s matter
  • C.   pay Lawyer to represent the client.  See, Rule 1.8(f)
  • D.   None of the above

Question 5

Judge Merrick Garland made headlines this week, and it had nothing to do with his nomination to the United States Supreme Court.  Rather, it had to do with two topics near and dear to this blog, one of which is the duty of competence.

Judge Garland authored an appellate decision in which he noted that the trial lawyers for one of the parties had conducted an incredibly competent cross-examination.  Throughout the opinion, Judge Garland compared the trial lawyers’ cross-examination to one conducted by a fictional lawyer who is also near & dear to this blog.

Name that fictional lawyer.

Vincent Gambini.  My blog on Judge Garland’s opinion is here.

Image result for my cousin vinny

Five for Friday #153

Michael 2 Comments

“Days will be long but the years will fly right by
We’ll never be as young as we are tonight
Baby, ain’t that right?”

~  Make It Sweet, Old Dominion

******************************************

Welcome to #153.

Luke Perry died Monday.  He was 1 birthday shy of 53.

If you don’t know Luke Perry, he was an actor.  Countless outlets, including the New York Times, covered his death.  For purposes of this column, and with no offense to younger legal professionals & law students who are Riverdale fans, Perry played Dylan McKay on Beverly Hills, 90210.

Until I heard that he’d died, I hadn’t thought of him in a long, long time.  Still, the news struck me.  Because Dylan McKay reminds me of Younger Me.

No matter how old you are, there was, is, or will be someone who reminds you of Younger You.  Someone who makes Today You laugh at Younger You, while also making Today You realize that there’s no better time than now to create Future You.

That’s wellness.  Let me explain.

I did my undergrad at UVM, then entered GW Law in 1990.  Back then, FOX wasn’t available in Vermont.  It was available in the DMV.  One of Younger Me’s thrills in moving to D.C. was the ability to watch The Simpsons.  

Correct.  Younger Me arrived at law school eagerly awaiting access to a cartoon. What can Today Me say?  That cartoon is still running.

Anyhow, 90210 debuted on FOX that fall.  Thinking back, I’m not sure I liked it. But, I’m positive Younger Me was addicted to it.

Here’s where laughing at Younger Us comes in.

First, don’t we always laugh at our former selves?

Little me

Seriously mom! A comb over, disco collar, and sweater with bicyles on it?

Second, for those of you who watched 90210, what were we thinking?  Seriously! Would you want your high school daughter hanging around with a guy who looked as old as Dylan?  At least he was only 24 when the show opened. Andrea was 29! Steve was 26 and has WAY more hair in his current Wiki pic than he did on the show. It’s comical that we bought into the notion that they were high school students.

But maybe laughing at Younger Us isn’t a bad thing.  Because laughing is good, and journeys down memory lane can be fantastic.

Prepping this post last night, Perry’s passing started me down a Google/YouTube/Prime-playlist rabbit hole of all things 90210 and the 90s.  I loved the trip.  I put some ribs on the grill, poured a Jack & Coke, and got lost in what used to be.  It made me happy to revisit things that made Younger Me happy.

And that’s okay.  No matter who your Luke Perry/Dylan McKay was, is, or will be, it will always be okay, every now and then, to go down the rabbit hole to Younger You.  Try it.  I guarantee that you’ll smile, if not laugh.

Smiling and laughing are wellness.

Which gets me to Future Us.

I’m not yet old enough to have had my Luke Perry die.

Because he could’ve been me.

And I’ve not yet taken a week off in March to go to spring training.  

I’ve not yet learned to play piano or any of the guitar parts to Paradise City.  Or visited Alaska.

I LOVE college football.  Many years ago, my dad moved to a town in North Carolina that is within easy driving distance of several major college football schools.  

I’ve not yet worked from his house in October, spending the autumn weekends driving to college football games. 

Younger Me would be shocked at all I haven’t done.  And Luke Perry is dead.  There is zero chance that Younger Me would’ve bet on Dylan McKay dying before I did the things Younger Me resolved to do.

You are the same. There are many things that Younger You expected you to have done by now.  And it’s not an age thing.  Whether 26 or 86, Yesterday You might’ve resolved to do something that Today You is already putting off.

Those things are wellness.

As Old Dominion sings, “we’ll never be as young as we are tonight.” In other words, no matter how old you are today, you are tomorrow’s Younger You.

Do the things that Younger You wanted to do.

Do them today.

That’s wellness.

PS: for you OD fans, and from your emails I know many of you are, I love their music and I’m all about their No Shoes Nation vibe.  So much so that Today Me resolves that Future Me will soon let the windshield frame the ocean while the radio is coast-to-coastin’.  Alas, what Today Me wouldn’t give to let that surf side Santa Anna wind mess up the hair that Younger Me had as a 3L.

img_1862

As one of my former players asked “where’d the flow go bro?”

Dude, that s(tuff) don’t just Snapback.

Onto the quiz!

Rules

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception – but one that is loosely enforced – #5 isn’t open book.  (“loosely enforced” = “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

This morning, Client shared information with Lawyer that caused Lawyer reasonably to believe that Client intends to commit suicide tonight.  Lawyer wants to disclose Client’s intent to someone who can intervene.  Under Vermont’s rules, Lawyer

  • A.   must not disclose client’s intent
  • B.   must disclose client’s intent
  • C.   must disclose client’s intent, unless client affirmatively told Lawyer not to
  • D.   may disclose client’s intent

Question 2

If a lawyer is holding funds to which both a client and third person claim interests, the lawyer must:

  • A.  disburse the funds as directed by the client
  • B.   hold the funds until the dispute is resolved
  • C.   pay the funds into court
  • D.  withdraw from representing the client

Question 3

Which is correct? A or B?

In an ex parte proceeding, a lawyer ____________ a duty to inform the tribunal of all material facts that will assist the tribunal to make an informed decision, even if the facts are adverse to the lawyer’s client.

  • A.   has.
  • B.   does not have.

Question 4

Lawyer called me with an inquiry. I listened, then said “it’s okay as long as

  • the client gives informed consent,
  • the person doesn’t interfere with your professional judgment or relationship with your client, and,
  • you do not share information with the person that is otherwise confidential and protected from disclosure by Rule 1.6.”

Given my response, what did Lawyer want to know if the person could do?

  • A.   retain Lawyer
  • B.   meet with Lawyer to share information helpful to the client’s matter
  • C.   pay Lawyer to represent the client
  • D.   None of the above

Question 5

Judge Merrick Garland made headlines this week, and it had nothing to do with his nomination to the United States Supreme Court.  Rather, it had to do with two topics near and dear to this blog, one of which is the duty of competence.

Judge Garland authored an appellate decision in which he noted that the trial lawyers for one of the parties had conducted an incredibly competent cross-examination.  Throughout the opinion, Judge Garland compared the trial lawyers’ cross-examination to one conducted by a fictional lawyer who is also near & dear to this blog.

Name that fictional lawyer.

 

 

 

 

 

 

 

 

 

 

 

Monday Morning Answers #152

Michael 1 Comment

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

Honor Roll

Answers

Question 1

Each of the following words is in the name of its own rule. Three of the rules involve the same type of ethics issue.   Which is associated with a different ethics issue than the other three?

  • A.  Prospective
  • B.  Meritorious
  • C.  Current
  • D.  Former

A, C, and D are types of clients in the conflicts rules (Rules 1.18, 1.7, 1.9).  B is different.  Rule 3.1 is entitled “Meritorious Claims & Contentions” and is the ethics equivalent of civil rule 11.

Question 2

Attorney called me with an inquiry. I listened, then replied, “yes, but only in an amount reasonably necessary for the purpose.”

You may assume that my response accurately (and exactly) quoted the rule.  Thus, Attorney asked whether the rules permit a lawyer to:

  • A.   charge for copying
  • B.   bill for travel time
  • C.   take time off to relax
  • D.   deposit the lawyer’s own money in a trust account.   Rule 1.15(b)

Question 3

There are two rules that impose a duty to take “reasonable remedial” action or measures.  One is the rule that addresses a lawyer’s duties when a nonlawyer assistant does something that would violate the rules if the lawyer did it.  The other is the rule that addresses a lawyer’s duties when the lawyer learns that:

  • A.   the lawyer deposited the lawyer’s own funds into a trust account
  • B.   opposing counsel violated the Rules of Professional Conduct
  • C.   the lawyer inadvertently communicated with a represented party
  • D.   a client engaged in criminal or fraudulent conduct related to a proceeding in which the lawyer represents the client.  Rule 3.3(b).

Question 4

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

  • “I understand the first part: you have reason to believe that your client is going to commit a criminal act.  What I didn’t understand is this: is the criminal act going to result in substantial bodily harm to your client? Or to someone other than your client?”

Lawyer’s inquiry related to the rule on:

  • A.   Client confidences.  
  • B.   Withdrawal
  • C.   Concurrent conflicts of interests
  • D.   Duties of a Prosecutor

This is Rule 1.6.  If the harm will result to the client, disclosure is permissive under Rule 1.6(c)(1).  If it will result to someone other than the client, disclosure is mandated by Rule 1.6(b)(1).  

Question 5

Speaking of Shakespeare, what did Dick the Butcher suggest to Jack Cade that they do first?

“The first thing we do, let’s kill all the lawyers.” Henry VI, Part II, act IV.

As the Wall Street Journal points out here, many have argued that the line is “pro-lawyer.”  Cade aspired to power.  Dick the Butcher was one of his henchmen.  The path to power included sowing disorder and depriving citizens of their rights, a plan that, first, required ridding society of the stewards of order and protectors of those rights: lawyers.

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Five for Friday #152

Michael 3 Comments

Welcome to February’s final Friday.  You know what that means?

Spring is near!

Indeed, as @CounselorAdrian has hashtagged of late, #TheLightIsWinning.

That’s wellness!

On the other hand, I’m not certain that the light was winning in Shakespeare’s Sonnet 152.

I know next to nothing about Shakespeare.  With “next to” being defined as “immediately adjacent to, if not leaning upon.”  It’s my worst category in Jeopardy.  Even worse than “Opera.”

Sometimes I watch Jeopardy with my mom.  When “Opera” is a category, I drive her crazy by yelling “Puccini!!” as soon as each clue is revealed.

You know what?  Every now and then “Who is Puccini” is right!

Alas, I have no such luck in “Shakespeare.”  That’s because the easiest clues are worth $200.  Not 2 cents.

Anyhow, looking for something to tie to this week’s number, I stumbled across Sonnet 152.  It’s the last of the so-called Dark Lady sonnets.   Literally, here’s the CliffsNotes version.  In short, in Sonnet 152, the writer acknowledges that love has rendered him blind. It left him unable (or unwilling) to see what was obvious.

Thinking on it, I was reminded of an article that I read in yesterday’s ABA Journal: Jeffrey Bunn’s Is there anybody in there? Lawyers can learn something about mindfulness from Pink Floyd.  It’s worth a read.  Bunn observes:

  • “We have, regrettably, become comfortably numb to something we need to prioritize and invest in—lawyer well-being, including mindfulness and meditation.”

As most readers know, I’ve banged the drum on attorney wellness, both on this blog and at presentations around Vermont.  Overall, and over time, the reception has been positive.  The profession now realizes that it has to do something for lawyers who are coping with significant behavioral health issues.

Mindfulness?  Folks seem a little more fuzzy on that, less willing to agree that it’s a critical component of competence. That’s where Sonnet 152 and Comfortably Numb collide.

Please read the ABA Journal’s full post.  Otherwise, in short, Bunn argues that being mindful of mindfulness is a good thing for the profession.  His argument reminds me that attorney wellness is much more than helping lawyers whose practices are at risk due to crippling and unaddressed substance abuse & mental health problems.  Wellness includes mindfulness, or, as Bunn writes:

  • “Don’t get me wrong—I don’t believe that the legal profession is broken. But it certainly is sick. Sick, as in: Not sustainable as currently constituted. That’s because our profession comprises women and men who can all use a little TLC, once in a while.”

He continues:

  • “Mindfulness and meditation are important pieces of the well-being pie, and our institutions would do us all a great service—they’d do themselves a great service—if they could find a way to normalize those practices and bring them into the everyday realm of our profession. Neither is a panacea for everything that ails our profession, but they can provide us with precious time—time to sharpen our awareness, time to contemplate and reflect—time for ourselves, which, in turn, can benefit our institutions.”

In Sonnet 152, the speaker realized he’d long turned a blind eye to the obvious.  In a way, we’ve done the same.  Every single one of us needs a little TLC every now and then.  It’s time to open our eyes to mindfulness.

We cannot afford to remain Comfortably Numb.

Onto the quiz!

Rules

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception – but one that is loosely enforced – #5 isn’t open book.  (“loosely enforced” = “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

Each of the following words is in the name of its own rule. Three of the rules involve the same type of ethics issue.   Which is associated with a different ethics issue than the other three?

  • A.  Prospective
  • B.  Meritorious
  • C.  Current
  • D.  Former

Question 2

Attorney called me with an inquiry. I listened, then replied, “yes, but only in an amount reasonably necessary for the purpose.”

You may assume that my response accurately (and exactly) quoted the rule.  Thus, Attorney asked whether the rules permit a lawyer to:

  • A.   charge for copying
  • B.   bill for travel time
  • C.   take time off to relax
  • D.   deposit the lawyer’s own money in a trust account

Question 3

There are two rules that impose a duty to take “reasonable remedial” action or measures.  One is the rule that addresses a lawyer’s duties when a nonlawyer assistant does something that would violate the rules if the lawyer did it.  The other is the rule that addresses a lawyer’s duties when the lawyer learns that:

  • A.   the lawyer deposited the lawyer’s own funds into a trust account
  • B.   opposing counsel violated the Rules of Professional Conduct
  • C.   the lawyer inadvertently communicated with a represented party
  • D.   a client engaged in criminal or fraudulent conduct related to a proceeding in which the lawyer represents the client

Question 4

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

  • “I understand the first part: you have reason to believe that your client is going to commit a criminal act.  What I didn’t understand is this: is the criminal act going to result in substantial bodily harm to your client? Or to someone other than your client?”

Lawyer’s inquiry related to the rule on:

  • A.   Client confidences
  • B.   Withdrawal
  • C.   Concurrent conflicts of interests
  • D.   Duties of a Prosecutor

Question 5

Speaking of Shakespeare, what did Dick the Butcher suggest to Jack Cade that they do first?

See the source image

 

 

 

Monday Morning Answers #151

Michael Leave a comment

Welcome to another week!

Friday’s questions are here.  The answers follow today’s Honor Roll.  Special thanks to all who sent birthday wishes for my bro!

Honor Roll

Answers

Question 1

Which doesn’t belong with the others?

  • A.   Keep the client reasonably informed about the status of a matter.
  • B.   Promptly comply with reasonable requests for information.
  • C.   As far as reasonably possible, maintain a normal client-attorney relationship with the client.
  • D.   Explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

C is in Rule 1.14 and is the critical duty when representing a client who suffers from a diminished capacity.  A, B and D are part of Rule 1.4’s duty to communicate with a client.

Question 2

Yesterday at a CLE, my answer to a question included the following words & phrases:

  • same as or substantially related to;
  • materially adverse
  • informed consent, confirmed in writing

You should assume that I accurately quoted the applicable rule.  Given that assumption, the question related to the rule on:

  • A.   Concurrent conflicts of interest.
  • B.   Conflicts of interest & former clients.  Rule 1.9
  • C.    Commingling
  • D.   Prospective clients.

Question 3

“A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.”

  • A.   True.  That’s a rule.  Rule 3.2
  • B.   True.  That’s in one of the comments to the rule on diligence.
  • C.   True.   That’s in one of the comments to the rule on fees.
  • D.   It’d be nice, but it doesn’t say that anywhere in the rules or their comments.

Question 4

The phrase “without fee or expectation of fee” is in the rule on:

  • A.   Withdrawing from a representation.
  • B.    Reasonable fees.
  • C.    Referral fees.
  • D.   Pro Bono.  Rule 6.1

Question 5

Yesterday reminded me of this question.

Lawrence Mattingly practiced law in Illinois.  Once, he arranged a meeting between a client and federal agents/prosecutors who were trying to build a tax evasion case against the client.  During the meeting, the client claimed “I’ve never had much of an income.”

Later, Attorney Mattingly provided Treasury agents with a letter in which he conceded that his client had, in fact, earned a substantial income over the previous 4 years. The “Mattingly Letter” was admitted at trial and used as evidence against the client.  The client was convicted and sent to prison.

Who was the client?

AL CAPONE.  In 2018, I blogged on the Mattingly Letter:

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Five for Friday #151

Michael 2 Comments

Welcome to #151!

Bacardi isn’t today’s topic.  I can’t stand rum.

Today’s topic is my brother.

My brother is Patrick Francis Kennedy.  Some of you may know him as “The First Brother.” That’s how I list him when he earns a spot on the #fiveforfriday Honor Roll.  No, he’s not a lawyer.  He’s simply incredibly smart and can do legal research.  When he feels like it, he submits a perfect 5 for 5.   Give him a few days and he’d argue your motion to dismiss.

Then he’d argue opposing counsel’s position and leave the judge with a difficult decision.

I’m not sure how best to describe Patrick.  He is a lot of things.

Patrick makes his living as some sort of coder.  Or maybe he’s a programmer or a network engineer.  Honestly, his professional world is so Greek to me that I’m not exactly sure what he does.  But he’s damn good at it.

Patrick used to be in the Army.  He drove tanks.  Then, he did something, I can’t remember where or what, that exposed his tech competence to a superior officer.  That was the end of driving tanks. They whisked him off to West Point to run systems and such.  Now, he works for MyWebGrocer.

Patrick is also a top-notch chef.  He’s won multiple chili contests, an accomplishment that actually works to mask how adept he is at cooking anything & everything.  Not only does he know the precise temperature at which the various meats are best served, he’s knows how to order the right wine for each.  And how to make the right cheese for each wine.  Don’t like wine?  He brews beer.

My brother can fish & hunt.  He can explain how a piano works, how to attack a zone defense, and how the Union Army prevailed at Gettysburg.  He is conversant in Spanish and Italian.  He’s traveled extensively in Europe, been stationed on the DMZ, and coached a middle school basketball team to a tournament championship.

While wearing a tuxedo.

He can capably discuss Cornwallis at Yorktown, the aerodynamics at Daytona, and the paradoxes of time travel.  He could do your kid’s calculus homework then show her little sister how to build a leprechaun trap.  Afterwards, he’d let you choose whether to have him teach you how to make candles, brisket, or reservations for a Papal mass.

Patrick has constructed compelling arguments that Ignatius J. Reilly is literature’s greatest character, Rock of Ages is Broadway’s greatest musical, and Rick Burleson is Boston’s greatest shortstop.  He was the only Vermonter among the 25 finalists for the President of Red Sox Nation.

He doesn’t cheat at board games or throw tantrums when he loses.  (Hello bar counsel!) He’d crush you in Trivial Pursuit or Jeopardy, but then lie to you that he was lucky to do so.

I could go on & on about my brother.  Nothing I’ve listed should be construed to indicate that something I omitted is not in his wheelhouse.  Further, if my description of him seems random, well, it is.  Because that’s him: the rare person who knows so much about so much that it makes those of us who aren’t so smart (or interesting) wonder “how does he know so much about so many random things?”

But the things that he knows and can do are not why he’s important to me.  Without diving into detail, I’ll leave you with this.

Patrick is my younger brother.  By 18 months.  For his entire life, he’s had my back, unconditionally.  24/7/365. If you have a brother, you know what that means.

I wish I was more like him.  As a person, and as a brother.

My brother is a remarkable person with a fascinating variety of talents, interests, and areas of knowledge.  Everything I’ve shared about him is true.  Yet, there’s no more accurate way to describe him than as the best brother in the world.

Oh, one other thing, Patrick Francis Kennedy was born on February 15.

Happy birthday bro!

Bro

Onto the quiz!

Rules

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception – but one that is loosely enforced – #5 isn’t open book.  (“loosely enforced” = “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

Which doesn’t belong with the others?

  • A.   Keep the client reasonably informed about the status of a matter.
  • B.   Promptly comply with reasonable requests for information.
  • C.   As far as reasonably possible, maintain a normal client-attorney relationship with the client.
  • D.   Explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation,

Question 2

Yesterday at a CLE, my answer to a question included the following words & phrases:

  • same as or substantially related to;
  • materially adverse
  • informed consent, confirmed in writing

You should assume that I accurately quoted the applicable rule.  Given that assumption, the question related to the rule on:

  • A.   Concurrent conflicts of interest.
  • B.   Conflicts of interest & former clients.
  • C.    Commingling
  • D.   Prospective clients.

Question 3

“A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.”

  • A.   True.  That’s a rule.
  • B.   True.  That’s in one of the comments to the rule on diligence.
  • C.   True.   That’s in one of the comments to the rule on fees.
  • D.   It’d be nice, but it doesn’t say that anywhere in the rules or their comments.

Question 4

The phrase “without fee or expectation of fee” is in the rule on:

  • A.   Withdrawing from a representation.
  • B.    Reasonable fees.
  • C.    Referral fees.
  • D.   Pro Bono.

Question 5

Yesterday reminded me of this question.

Lawrence Mattingly practiced law in Illinois.  Once, he arranged a meeting between a client and federal agents/prosecutors who were trying to build a tax evasion case against the client.  During the meeting, the client claimed “I’ve never had much of an income.”

Later, Attorney Mattingly provided Treasury agents with a letter in which he conceded that his client had, in fact, earned a substantial income over the previous 4 years. The “Mattingly Letter” was admitted at trial and used as evidence against the client.  The client was convicted and sent to prison.

Who was the client?

.

 

Monday Morning Answers #150

Michael 1 Comment

Happy Monday!  I hope your ♥ week is off to a good start.

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

Honor Roll

Answers

Question 1

There’s only one rule that specifically references both criminal cases & divorces.  It’s the rule on:

  • A.   Pro Bono.
  • B.   Conflicts with former clients.
  • C.   Conflicts with current clients.
  • D.   Contingent fees.  (Rule 1.15(d) prohibits contingent fees in most domestic relations matters and all criminal cases)

Question 2

There’s a rule that prohibits ex parte communications with two groups of people.    Each group begins with the same letter.

Name each group.

Judges & Jurors.  Rule 3.5

Question 3

True or False.

Under our current rules, a nonlawyer paralegal can have an ownership stake in a law firm.

False.  Rule 5.4

Question 4

Per one of the conflict rules, a lawyer shall not prepare for a client an instrument (ie: a Will) that gives the lawyer a substantial gift unless ____________:

  • A.  the lawyer is related to the client.  Rule 1.8(c)
  • B.  the client gives informed consent, confirmed in writing.
  • C.  the lawyer advises the client to seek independent counsel before executing the instrument.
  • D.  B & C.

Question 5

Last year, the ABA updated its list of the top 25 legal movies of all-time.  Two of the top three on the original list are set in the same state.

Name the movies and the state.

To Kill A Mockingbird & My Cousin Vinny are both set in Alabama

See the source image