Medal Monday #207

Welcome to Monday!  Friday’s questions are here. The answers follow today’s Medalists.

Medalists

  • Matthew AndersonPratt Vreeland Kennelly & White
  • Evan BarquistMontroll Backus & Oettinger
  • Mimi Brill, Windham County Public Defender
  • Erin GilmoreRyan Smith & Carbine
  • Robert Grundstein, Esq.
  • Glenn Jarrett, Jarrett & Luitjens
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Elizabeth KruskaPresident-Elect, VBA Board of Managers
  • John LeddyMcNeil Leddy & Sheahan
  • Kevin LumpkinSheehey Furlong & Behm
  • Jack McCullough, Vermont Legal Aid, Project Director – Mental Health Law Project
  • Jake Perkinson, Esq.
  • Jim Runcie, Esq.
  • Jay Spitzen, Esq.
  • Jonathan Teller-Elsberg, Hershenson, Carter, Scott & McGee
  • Jack Welch, Esq.

Answers

Question 1

The following statement refers to 2 of the 7 Cs of Legal Ethics.  One is “competence.” What’s the other?

Lawyers should be aware of the risks related to the inadvertent disclosure of client information & data that are associated with working remotely.

CONFIDENTIALITY.   For more, see my CLE video Protecting Client Data While Working Remotely. It’s 23 minutes.

Question 2

By rule, how often must a lawyer or firm reconcile a trust account?

  • A.  “Timely” with timely defined as no less than monthly.  V.R.Pr.C. 1.15A(a)(1)
  • B.  Quarterly.
  • C.  As recommended by general accounting standards and best practices.
  • D.  Trick question.  The rules are silent.  However, in a disciplinary case, the Vermont Supreme Court held that “more than 2 months without reconciliation is a violation of the general duty to safeguard client funds.”

Question 3

Client retains Lawyer and agrees to pay Lawyer an hourly fee.  The fee agreement is reduced to a writing that is signed by Client.

The representation ends.  Client has paid less than half of the outstanding bill and owes Lawyer for 20 hours of work.

May Lawyer claim the 20 hours as pro bono?

  • A. Yes.
  • B.  Yes, but only if Lawyer stops trying to collect the bill.
  • C.  Yes, but only if Client is “a person of limited means.”
  • D.  No.

To qualify as pro bono, legal services must be provided without a fee or expecation of a fee.  V.R.Pr.C. 6.1(a).

Question 4

There is a rule that has 3 exceptions.  They are:

  • unless the testimony relates to an uncontested issue;
  • unless the testimony relates to the nature and value of legal services rendered; or,
  • if disqualification of the lawyer would work substantial hardship on the client.

What does the rule prohibit?

It’s Rule 3.7 and it prohibits a lawyer from serving as an advocate at trial in a matter in which the lawyer is a necessary witness.  “Conflict of interest” counts as a correct answer.

Question 5

Juneteenth dates to an event that took place on June 19, 1865.  What event?

  • A.  The ratification of the 13th Amendment to the U.S. Constitution.
  • B.  President Lincoln’s signing of the Emancipation Proclamation.
  • C.  Union soldiers arriving in Texas and announcing that enslaved people were freeFor more, visit Juneteenth.com
  • D.  Lee’s surrender at Appomattox.

Juneteenth Flag : vexillology

 

Five for Friday #207

Welcome to Friday.

Lawyers owe a duty of competence to their clients.  It’s the very first rule and, to me, encompasses every other rule.  That is, competent representation includes maintaining client confidences, providing conflict-free representation, safeguarding client funds . . . yada, yada, yada.

I also believe that the duty of competence includes knowing, for lack of a better term, what’s going on.  For example, in a pandemic, a lawyer should be aware of the impact that the Judicial and Executive Orders have on clients’ matters.  Or, when a lawyer shows up at a deposition or hearing, the lawyer should have a basic idea about, you know, what’s going on.

More often than not, I use the intro to the #fiveforfriday quiz to share a story related to the week’s number. However, I’ve also used it to blog about events associated with the publication date.  Last night, pondering how to compose a post connected to “207” or June 19, I realized that I know next to nothing about the origin, history or meaning of Juneteenth.

I was surprised that my lack of knowledge surprised me.  Indeed, I’m often struck by how little I know about many of the holidays and observances.  For instance, I often struggle to remember the answers to these questions: **

  • is March 17 the anniversary of St. Patrick’s birth, death, or return to Ireland?
  • is Cinco de Mayo Mexico’s Independence Day?
  • who were the other commanders with Ethan Allen at the Battle of Bennington?

Again, in my view, as lawyers, we violate the duty of competence when we don’t know what’s going on.  As people, we’ve long done so with holidays: we participate without bothering to learn a day’s true meaning or importance to those who celebrate, honor, and observe. As an Irish-Catholic, I assure you that multiple green beers by 2PM on a workday in March isn’t the point.

I want to understand Juneteenth’s history, origin and meaning.  So, I will mark the day by learning. You can do the same here, here, here, or a whole lot of other places.

It’s good to know what’s going on.

Onto the quiz!

Rules

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

Question 1

The following statement refers to 2 of the 7 Cs of Legal Ethics.  One is “competence.” What’s the other?

Lawyers should be aware of the risks related to the inadvertent disclosure of client information & data that are associated with working remotely.

Question 2

By rule, how often must a lawyer or firm reconcile a trust account?

  • A.  “Timely” with timely defined as no less than monthly.
  • B.  Quarterly.
  • C.  As recommended by general accounting standards and best practices.
  • D.  Trick question.  The rules are silent.  However, in a disciplinary case, the Vermont Supreme Court held that “more than 2 months without reconciliation is a violation of the general duty to safeguard client funds.”

Question 3

Client retains Lawyer and agrees to pay Lawyer an hourly fee.  The fee agreement is reduced to a writing that is signed by Client.

The representation ends.  Client has paid less than half of the outstanding bill and owes Lawyer for 20 hours of work.

May Lawyer claim the 20 hours as pro bono?

  • A. Yes.
  • B.  Yes, but only if Lawyer stops trying to collect the bill.
  • C.  Yes, but only if Client is “a person of limited means.”
  • D.  No.

Question 4

There is a rule that has 3 exceptions.  They are:

  • unless the testimony relates to an uncontested issue;
  • unless the testimony relates to the nature and value of legal services rendered; or,
  • if disqualification of the lawyer would work substantial hardship on the client.

What does the rule prohibit?

Question 5

Juneteenth dates to an event that took place on June 19, 1865.  What event?

  • A.  The ratification of the 13th Amendment to the U.S. Constitution.
  • B.  President Lincoln’s signing of the Emancipation Proclamation.
  • C.  Union soldiers arriving in Texas and announcing that enslaved people were free.
  • D.  Lee’s surrender at Appomattox.

 

Juneteenth Flag : vexillology

 

**

  1. March 17 is the traditional date of St. Patrick’s death.
  2. No, Cinco de Mayo is not Mexico’s Independence Day. The holiday commemorates the Mexican Army’s victory over France in the Battle of Puebla on May 5, 1862.
  3. Umm, Ethan Allen wasn’t at the Battle of Bennington.  At the time, he was in NY, a prisoner of the British.

 

 

 

Medal Monday #206

Monday, Monday.   Can’t trust that day.

Friday’s questions are here.  The answers follow today’s Medalists.

Medalists

Answers

Question 1

If a section of the Rules of Professional Conduct requires a “writing,” does an email comply with the rule?

  • A.   Yes.  V.R.Pr.C. 1.0(n) 
  • B.   No.

Question 2

Imagine you hear me say this during a seminar:

  • “Depositing your own funds to cover reasonably expected bank charges falls within a safe harbor from the general prohibition on _______________.”

Which of the 7 C’s of Legal Ethics correctly fills in the blank?

COMMINGLING

Question 3

Attorney serves as a mediator.  The matter does not settle or resolve at mediation.  Going forward, can Attorney represent one of the parties?

  • A.  No.
  • B.  Yes.
  • C.  Yes, if all parties to the matter give informed consent, confirmed in writing.  V.R.Pr.C. 1.12(a).
  • The Rules of Professional Conduct do not address this type of conflict issue.

Question 4

In response to an inquiry, I tell a lawyer “the rule says that you can’t counsel or assist your client to unlawfully alter, conceal, or destroy material that has potential evidentiary value. Most advisory ethics opinions add that you can’t counsel your client to do so if it would constitute spoliation.”

In context, “do so” most likely means that Lawyer asked me if Lawyer could advise a client to:

  • A.   Take down material that the client had posted to social media.  See, my blog post Advising Clients On Their Social Media Use
  • B.    Speak directly to a represented opposing party.
  • C.    Surreptitiously record a conversation with the opposing party.
  • D.    Intentionally post false information to social media to deceive the opposing party.

Question 5

Thank you Elizabeth Kruska for the tip!

Tech competence is a thing.

Earlier this year, a relatively famous lawyer was temporarily released from prison due to the COVID-19 crisis.  The lawyer, often mentioned on this blog, was back in the news this week: prosecutors allege that metadata associated with the lawyer’s court filings shows that the lawyer violated his conditions of release.

Name the lawyer.

Michael Avenatti.   Among others, CNN and The Hill covered the story.

Who Is Stormy Daniels Lawyer Michael Avenatti — And Who Is Helping ...

Five for Friday #206

Welcome to Friday.

As of 7:05 AM, I had a nearly complete essay on how “206” reminds me of a common marathon strategy. It began by reminding readers that a marathon is 26.2 miles.

  • (Tip:  EVERY marathon is 26.2 miles.  There’s no need to ask a runner “how far is your next marathon?”)

From there, I shared that, in their heads, runners often divide a marathon into two segments: the first 20 miles, and the final 6.2  It’s a mental trick.  Then, I tried to use the so-called “20 & 6” strategy to connect “206” to a lawyer’s professional responsibility to provide clients with competent representation.  Alas, the draft stunk, so it now lives wherever trashed WordPress posts go to spend their days.

Before I deleted it, I considered revising it.  Then, as a new pot of coffee brewed, I made the mistake of browsing the news and stumbled upon this headline:

Study Suggests Bald Men Could Be More At Risk For Severe Coronavirus

As a result of the quarantine, you might not remember what I look like:

Race

The news led me down a rabbit hole of articles from which I returned mere moments before an 8:30 meeting that kicked off a morning of meetings.  Now, I’ve no time to revise my essay on 206, the 20 & 6 strategy, and the duty of competence.  So, today, this is what you get.

Please remember me fondly when you buy shampoo and comb or brush your hair.

Onto the quiz.

Rules

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

Question 1

If a section of the Rules of Professional Conduct requires a “writing,” does an email comply with the rule?

  • A.   Yes.
  • B.   No.

Question 2

Imagine you hear me say this during a seminar:

  • “Depositing your own funds to cover reasonably expected bank charges falls within a safe harbor from the general prohibition on _______________.”

Which of the 7 C’s of Legal Ethics correctly fills in the blank?

Question 3

Attorney serves as a mediator.  The matter does not settle or resolve at mediation.  Going forward, can Attorney represent one of the parties?

  • A.  No.
  • B.  Yes.
  • C.  Yes, if all parties to the matter give informed consent, confirmed in writing.
  • D.  The Rules of Professional Conduct do not address this type of conflict issue.

Question 4

In response to an inquiry, I tell a lawyer “the rule says that you can’t counsel or assist your client to unlawfully alter, conceal, or destroy material that has potential evidentiary value. Most advisory ethics opinions add that you can’t counsel your client to do so if it would constitute spoliation.”

In context, “do so” most likely means that Lawyer asked me if Lawyer could advise a client to:

  • A.   Take down material that the client had posted to social media.
  • B.    Speak directly to a represented opposing party.
  • C.    Surreptitiously record a conversation with the opposing party.
  • D.    Intentionally post false information to social media to deceive the opposing party.

Question 5

Thank you Elizabeth Kruska for the tip!

Tech competence is a thing.

Earlier this year, a relatively famous lawyer was temporarily released from prison due to the COVID-19 crisis.  The lawyer, often mentioned on this blog, was back in the news this week: prosecutors allege that metadata associated with the lawyer’s court filings shows that the lawyer violated his conditions of release.

Name the lawyer.

 

Medal Monday #205

It’s Memorial Day.  If you have a moment and are so inclined, the National Moment of Remembrance is at 3:00 PM.

Friday’s questions are here.  The answers follow today’s Medalists.

Medalists

  • Matthew AndersonPratt Vreeland Kennelly Martin & White
  • Alberto Bernabe, Professor, John Marshall Law School
  • Erin GilmoreRyan Smith & Carbine
  • Benjamin GouldPaul Frank & Collins
  • Laura Gorsky, Esq.
  • Bob Grundstein, Esq.
  • Mark Heyman, Esq.
  • Glenn Jarrett, Jarrett & Luitjens
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy, JB Kennedy Associates, Blogger’s Mom
  • Tom LittleLittle & Cicchetti
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Hal Miller, First American
  • Herb Ogden, Esq.
  • Jay Spitzen, Esq.
  • Thomas Wilkinson, Jr., Cozen O’Connor
  • Peter Young, General Counsel, Vermont Railway System

Answers

Question 1

Fill in the blank. (choices are below)

“In the course of representing a client a lawyer ___________ make a false statement of material fact or law to a third person.”

  • A.   should not
  • B.   should take reasonable steps not to
  • C.   may
  • D.   shall not   V.R.Pr.C. 4.1

Question 2

I’ve often mentioned the 7 Cs of Legal Ethics.  This week, preparing a CLE for government attorneys, I realized that there might be an 8th.

While a government attorney likely won’t have to worry about “commingling,” a government attorney often must ask a question that lawyers in private practice do not:

  • Who is the _________?

The answer begins with the letter C.

CLIENT

Question 3

Speaking of the Cs, a rule involving one of them includes a comment that says:

  • “A lawyer should adopt reasonable procedures, appropriate for the size and type of firm and practice, to determine in both litigation and non-litigation matters the persons and issues involved.  Ignorance caused by a failure to institute such procedures will not excuse a lawyer’s violation of this rule.”

What C?

Conflicts of Interest.  The language is from V.R.Pr.C. 1.7 Comment [3].  

Question 4

Lawyer called me with an inquiry.  My response included the words “scrubbing” and “spoliation,” as well references to several advisory ethics opinions that also speak of “scrubbing and spoliation.”

It’s most likely that Lawyer called because a client asked Lawyer:

  • A.   To withdraw.
  • B.   Whether the client could “take down” social media posts.
  • C.   Whether Lawyer would accept payment via PayPal or Venmo.
  • D.  To refund a retainer paid by a personal check that had been deposited to trust, but that did not yet constitute “collected funds.”

This post from September 2019 includes links to several social medial advisory ethics opinions, as well as to the Social Media Ethics Guidelines published by the New York State Bar Association’s Commercial & Federal Litigation Section.

Question 5

With Memorial Day in mind, believe it or not, there are lawyers who earned the distinction of being buried in at Arlington National Cemetery!  Yes Dad, posthumously!

Among them, William Howard Taft.  Having served as U.S. President and Chief Justice of the United States Supreme Court, Taft is the only person ever to lead two branches of government and was the first president buried at Arlington.

I don’t know whether Major League Baseball will return this summer.  If it does, I don’t know whether fans will be allowed to attend.  Someday, however, baseball stadiums will again include fans.

As he is with leading branches of government,  Taft is associated with not one, but two of baseball’s enduring game-day traditions.  The first is something that Taft did on the field, but that fans can only watch.  The second is something in which fans enthusiastically participate and one that, according to lore, became popular because of something Taft did in the stands.

Name either tradition.

Taft was the first president to throw out the “first pitch” on Opening Day and, according to lore, made the 7th inning stretch a thing.

Who was the first president to throw a first pitch on Opening Day ...

Five for Friday #205

Welcome to Friday!

I took up fishing this week. Last night, JD and the First Brother took me on my initial outing.  Each is an experienced angler.

All week, I imagined great success that would provide me with a fish story connected to “205” to share this morning.  Whether 2.05 pounds, 20.5 inches long, or the depth from which I landed the first of the countless glorious catches undoubtedly to follow this summer.

Alas, any fish story I might share this morning would be exactly that: a fish story.

On the way back to the access, JD said “boys, that’s why they call it fishin’ not catchin’.”

Fair enough.

Still, this was the view at the time:

IMG_0510

(photo credit to JD)

The moment reminded of last week’s post on the journey and the destination: fishin’ is to the journey, as catchin’ is to the destination.  Something that, as the sun set, it dawned on me that JD and my brother have long understood.

I don’t have a fish story to share, but I’ll share this: a setting bettered only by the company allows me to assure you that last night’s journey was time well spent.

Wherever the weekend leads, may Monday evening’s destination find you assured that your journey was time well spent.

Onto the quiz!

Rules

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

Question 1

Fill in the blank. (choices are below)

“In the course of representing a client a lawyer ___________ make a false statement of material fact or law to a third person.”

  • A.   should not
  • B.   should take reasonable steps not to
  • C.   may
  • D.   shall not

Question 2

I’ve often mentioned the 7 Cs of Legal Ethics.  This week, preparing a CLE for government attorneys, I realized that there might be an 8th.

While a government attorney likely won’t have to worry about “commingling,” a government attorney often must ask a question that lawyers in private practice do not:

  • Who is the _________?

The answer begins with the letter C.

Question 3

Speaking of the Cs, a rule involving one of them includes a comment that says:

  • “A lawyer should adopt reasonable procedures, appropriate for the size and type of firm and practice, to determine in both litigation and non-litigation matters the persons and issues involved.  Ignorance caused by a failure to institute such procedures will not excuse a lawyer’s violation of this rule.”

What C?

Question 4

Lawyer called me with an inquiry.  My response included the words “scrubbing” and “spoliation,” as well references to several advisory ethics opinions that also speak of “scrubbing and spoliation.”

It’s most likely that Lawyer called because a client asked Lawyer:

  • A.   To withdraw.
  • B.   Whether the client could “take down” social media posts.
  • C.   Whether Lawyer would accept payment via PayPal or Venmo.
  • D.  To refund a retainer paid by a personal check that had been deposited to trust, but that did not yet constitute “collected funds.”

Question 5

With Memorial Day in mind, believe it or not, there are lawyers who earned the distinction of being buried in at Arlington National Cemetery!  Yes Dad, posthumously!

Among them, William Howard Taft.  Having served as U.S. President and Chief Justice of the United States Supreme Court, Taft is the only person ever to lead two branches of government and was the first president buried at Arlington.

I don’t know whether Major League Baseball will return this summer.  If it does, I don’t know whether fans will be allowed to attend.  Someday, however, baseball stadiums will again include fans.

As he is with leading branches of government,  Taft is associated with not one, but two of baseball’s enduring game-day traditions.  The first is something that Taft did on the field, but that fans can only watch.  The second is something in which fans enthusiastically participate and one that, according to lore, became popular because of something Taft did in the stands.

Name either tradition.

 

 

Medal Monday #204

Welcome to another week.

Friday’s questions are here.  The answers follow today’s medalists.

Medalists

Answers

Question 1

The following statement is from a comment to a rule.  Your task: fill in the blank.

“The lawyer’s duty to act with reasonable diligence _______________ the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.”

  • A.  may require.
  • B.  does not require.  V.R.Pr.C. 1.3, Comment [1].
  • C.  usually does not require.
  • D.  is perfectly, but sadly, consistent with

Question 2

By rule, a lawyer shall not use information relating to the representation of a former client to the former client’s disadvantage.  One exception is when the information ______:

  • A.  has become generally known.  V.R.Pr.C. 1.9(c)(1)
  • B.  is public record.
  • C.  Trick question. There are no exceptions.
  • D.  A or B.

Question 3

Lawyer and Client agree that Lawyer will represent Client for $200 per hour.  The agreement is not reduced to writing.  Lawyer sends invoices at the end of every month, always billing at $200 per hour.  Client pays each bill.

Then, one month, Lawyer sends an invoice billing Lawyer’s time at $250 per hour.  Prior to doing the work, Lawyer did not inform Client of the change to the hourly fee.

Which is most accurate?

  • A.  There is a rule that requires any changes in the basis or rate of the fee to be communicated to the client.  Lawyer appears to have violated that rule.  
  • B.  Hourly fee agreements do not have to be in writing. Therefore, while not very professional, Lawyer appears not to have violated the Rules of Professional Conduct.

This is Rule 1.5(a).  The final sentence says “Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.”

Question 4

Consider the following:

  1. Information received by Bar Counsel while responding to an ethics inquiry.
  2. Information received by a lawyer while serving in the Lawyer Assistance Program
  3. Information received by a lawyer while serving as a member of the VBA’s Professional Responsibility Committee.I
  4. Information otherwise protected by Rule 1.6 (the rule on client confidences).

In each, the recipient of the information is exempt from a duty that otherwise applies to all lawyers.  What duty?

The duty to report another lawyer’s violation of the Rules.  V.R.Pr.C. 8.3(c).

Question 5

You should be able to narrow this down to a 50-50.

On May 15, 1869, two women founded the National Women’s Suffrage Association.  Three years later, one of them met & befriend California Republican Senator Aaron Sargent on a train ride.  Their friendship eventually resulted in Senator Sargent introducing the first proposal to amend the Constitution to provide women the right to vote.  Years later, and after many failures, the amendment became the 19th to be ratified.

Who did Senator Sargent meet on the train?

Susan B. Anthony

Susan B. Anthony - Quotes, Facts & Women's Rights - Biography

 

Five for Friday #204

Welcome to Friday!

The video version of this post is here.  In this time of social distancing, I find recording the videos to be somewhat soothing, or reassuring.  They make feel like I’m connected to others.

Anyhow, last week, I spoke of how #203 reminded me of ticket stubs.  Conversely, #204 reminds me of not having a ticket at all.

My brother and I have had our fair share of adventures.  One of our best took place in 2004.

It started many years before.

We grew up Red Sox fans in a time when that meant rooting for a loser.  Not just any loser, but one prone to snatch defeat from the jaws of victory, often in heart-breaking fashion. 1978, 1986, 2003.

October 16 was a bleak Saturday.  The night before, the New York Yankees – evil personified to New England kids like us – had demolished our beloved Sox 19-8 to take a 3 games to 0 lead in the best-of-7 American League Championship Series.  No team in history had ever won a 7-game series in which it trailed 3-0.  Nothing in Boston’s history suggested they’d be the first.

A better fan than I, my brother planned to attend Saturday night’s Game 4.  I did not. I had no interest in bearing witness to New York eliminating Boston from the playoffs.  Not to mention, we didn’t have tickets and my brother’s plan was to sneak into Fenway Park.

Ummm, no thanks bro.  I couldn’t imagine anything less interesting that driving all that way without at ticket.  Not only would we not to get in, we’d have to spend the entire ride home listening to the Sox lose on the radio.

My brother wasn’t mad, but I’m sure he was baffled.  Unlike me, he’s always been more into the journey than the destination.  Who cares if he didn’t have a ticket?  Who cares if Boston loses? Worst case, he’d find a bar and watch the game on tv with a lot of other Red Sox fans. In other words, he’d have fun.

It rained in Boston that day.  So hard that the game was postponed.  To say it was the rain would be an excess in poetic license, but by Sunday morning, my spirits had been cleansed: I decided to go to Boston with my brother.  Indeed, claiming that my spirits had been cleansed is beyond the pale — basically, I didn’t want my brother to have to drive home alone in the middle of the night.

To say I was skeptical we’d set foot in Fenway would be an understatement.  My brother’s plan involved some girl he knew from Southie. She had a part-time job at The Crown Royal Club, a bar attached to Fenway.  She’d convinced my brother that if we met her in the bar, she’d get us into the game.

Somewhere in New Hampshire, my brother casually mentioned that The Crown Royal Club was for season ticket holders only. Southie Girl, however, had given him a password to use at the door.  All we had to do was tell the bouncer “Harvick 29.”

That’s right: our plan was to use a code word with the bouncer working the door at a bar attached to Fenway.

It worked.

Once inside the Crown Royal Club, I considered the trip a success: the food was free, the TVs flat, and, technically, we were in Fenway.  So, it didn’t bother me that the back door – the one that season ticket holders used to get to their seats – was staffed by two menacing dudes who conditioned exiting to the field on proof of possessing a game ticket.

Of course, Southie girl had a plan for that too.  Upon seeing my brother, she came over, said “hi,” and told us to be ready to go as soon as some guy from the kitchen gave us “the sign.”  I chuckled, happily resigned to the free buffet.

Then some guy popped out of the kitchen and gave us what we intuitively knew was “the sign.”  I was conflicted, never feeling more like Homer Simpson in my life: why would we leave all this free food? Especially to follow some guy through a kitchen to a door that was more likely to lead back to the street than into Fenway? Alas, when on adventures, rules are rules. Having seen the sign, I followed.

The trip through the kitchen was surreal.  I was equal parts excited and scared.  Thrilled about the chance to see the game, nervous that “disciplinary counsel arrested in Boston!” wouldn’t play well back home.

Long story short, within moments, we were inside Fenway Park and nobody was chasing us.   Eventually we staked out spots in the SRO section and held them throughout the game.

The rest is history.  I won’t bore you with the details.  Suffice to say, without tickets, we witnessed two of the defining moments in Red Sox lore. Boston won that night, and again the next three.  Four victories over St Louis followed and, for the first time since 1918, the Red Sox were World Series Champions.

And we were there when it started.

I can’t quite articulate it, but I’ve always taken a lesson from our 2004 adventure.  Essentially, if there’s something in your life that you’re not doing because of the equivalent of not having a ticket, have faith in the person who is telling you that the point isn’t the ticket.  That person is right.  The point is the adventure of trying to get in anyway.

Onto the quiz!

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Rules

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

Question 1

The following statement is from a comment to a rule.  Your task: fill in the blank.

“The lawyer’s duty to act with reasonable diligence _______________ the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.”

  • A.  may require.
  • B.  does not require.
  • C.  usually does not require.
  • D.  is perfectly, but sadly, consistent with

Question 2

By rule, a lawyer shall not use information relating to the representation of a former client to the former client’s disadvantage.  One exception is when the information ______:

  • A.  has become generally known.
  • B.  is public record.
  • C.  Trick question. There are no exceptions.
  • D.  A or B.

Question 3

Lawyer and Client agree that Lawyer will represent Client for $200 per hour.  The agreement is not reduced to writing.  Lawyer sends invoices at the end of every month, always billing at $200 per hour.  Client pays each bill.

Then, one month, Lawyer sends an invoice billing Lawyer’s time at $250 per hour.  Prior to doing the work, Lawyer did not inform Client of the change to the hourly fee.

Which is most accurate?

  • A.  There is a rule that requires any changes in the basis or rate of the fee to be communicated to the client.  Lawyer appears to have violated that rule.
  • B.  Hourly fee agreements do not have to be in writing. Therefore, while not very professional, Lawyer appears not to have violated the Rules of Professional Conduct.

Question 4

Consider the following:

  1. Information received by Bar Counsel while responding to an ethics inquiry.
  2. Information received by a lawyer while serving in the Lawyer Assistance Program
  3. Information received by a lawyer while serving as a member of the VBA’s Professional Responsibility Committee.
  4. Information otherwise protected by Rule 1.6 (the rule on client confidences).

In each, the recipient of the information is exempt from a duty that otherwise applies to all lawyers.  What duty?

Question 5

You should be able to narrow this down to a 50-50.

On May 15, 1869, two women founded the National Women’s Suffrage Association.  Three years later, one of them met & befriend California Republican Senator Aaron Sargent on a train ride.  Their friendship eventually resulted in Senator Sargent introducing the first proposal to amend the Constitution to provide women the right to vote.  Years later, and after many failures, the amendment became the 19th to be ratified.

Who did Senator Sargent meet on the train?

 

 

 

 

Medal Monday #203

Good morning!

I’ve renamed the Monday column in honor of a running tradition: “Medal Monday.”  The list formerly known as the “Honor Roll” will now fall under the caption “Medalists.”

Friday’s questions are here.  The answers follow the Medalists. For video answers with bonus commentary not available on the blog, go here.  It’s only 3:43.  By the way, my mom’s presence on the Honor Roll is not a courtesy mention for Mother’s Day.  She made it on her own doing!  Happy Mother’s Day mom!

And, yes! Actual medals are in the works! Might take a while, but I’ve got a plan.

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Medalists

  • Matthew AndersonPratt Vreeland Kennelly & White
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, UIC John Marshall Law School
  • Andrew DelaneyMartin Delaney & Ricci Law Group
  • Erin GilmoreRyan Smith & Carbine
  • Robert Grundstein, Esq.
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy, JB Kennedy Associates, Blogger’s Mom
  • Deborah Kirchwey, Esq.
  • Elizabeth KruskaPresident-Elect, VBA Board of Managers
  • John LamsonHave Justice Will Travel
  • John LeddyMcNeil Leddy & Sheahan
  • Mick LeddyMcNeil Leddy & Sheahan
  • Tom LittleLittle & Cicchetti
  • Pam MarshMarsh & Wagner
  • Jack McCullough, Project Director, Mental Health Law Project
  • Herb Ogden, Esq.
  • Jim Runcie, Ouimette & Runcie
  • Kristen ShamisMonaghan, Safar, Ducham
  • Jay Spitzen, Esq.
  • Jonathan Teller-Elsberg, Vermont Law School, JD Candidate
  • Jack Welch, Esq.

Question 1

X = the number of annual pro bono hours suggested by the rules.

Y = the number of years the rules require lawyers to maintain trust account records following the termination of the representation.

What is X * Y?

  • A.  420
  • B.  360
  • C.  350
  • D.  300

X = 50. V.R.Pr.C. 6.1(a)  

Y = 6. V.R.Pr.C. 1.6(a)

Question 2

What is the subject of the rule described here?

  • must be in a writing, signed by the client.
  • must be reasonable.
  • prohibited in criminal cases.
  • prohibited for securing a divorce.

A Contingent Fee.  V.R.Pr.C. 1.5(c)

Question 3

Below is my response to an inquiry.  It refers to one of the 7 C’s of legal ethics.  Which one?

  • Your duty is to remonstrate with the client, take reasonable remedial measures including, if necessary, disclosure to the tribunal.

CANDOR.  V.R.Pr.C. 3.3

Question 4

When used properly, the phrases “lateral transfers” and “ACH transfers” are used when discussing the rules on:

  • A.  conflicts of interest
  • B.  trust accounting
  • C.  respectively: conflicts of interest & trust accounting
  • D.  normal people don’t use phrases like these

Question 5

On May 8, 1978, David Berkowitz, against the advice of counsel, pled guilty to a series of charges relating to 8 separate shootings that left 6 dead and 7 wounded.

In 1999, Spike Lee made a movie that focused on an Italian-American neighborhood in the Bronx.  The movie was set in 1977 and against the backdrop of Berkowitz’s crime spree, a sweltering heat wave, and the Yankees’ championship season.

What was the nickname that the press used to refer to Berkowitz?

Bonus: what was the name of the movie?

Nickname: SON OF SAM

Movie: SUMMER OF SAM (A SPIKE LEE Joint)

Summer of Sam (1999) - IMDb

 

Monday Morning Honors

Happy Star Wars Day!

Don’t forget: on Thursday, and as part of National Lawyer Well-Being Week, I’m live-streaming legal ethics trivia.  I’ll start at 7PM on my YouTube channel.

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

Honor Roll

  • Matt AndersonPratt Vreeland Kennelly Martin & White
  • Penny Benelli, Dakin & Benelli
  • Mimi Brill, Windham County Public Defender
  • Honorable John M. Conroy, United States Magistrate Judge, District of Vermont
  • Beth DeBernardi, Administrative Law Judge, VT Dept. of Labor
  • Andrew DelaneyMartin Delaney & Ricci Law Group
  • Erin GilmoreRyan Smith & Carbine
  • Robert Grundstein, Esq.
  • Tammy Heffernan, Esq.
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Elizabeth KruskaPresident-Elect, VBA Board of Managers
  • John LeddyMcNeil Leddy & Sheahan
  • Jeffrey MessinaBergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Herb Ogden, Esq.
  • Kevin ShortellLaw Offices of Fred Peet
  • Norman Smith, Esq.
  • Jay Spitzen, Esq.
  • Jonathan Teller-Elsberg, Vermont Law School, JD Candidate
  • Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

A friend of mine dropped off some syrup last night. And I hadn’t done anything to deserve it!  But it made me think of this question:

True or false?  The rules specifically prohibit lawyers from bartering for legal services.

FALSE.  The terms are subject, however, to the reasonableness standard V.R.Pr.C. 1.5 (lawyer shall not charge an unreasonable fee).

Question 2

Most of the Rules of Professional Conduct apply generally, regardless of practice area. However, there’s a one rule that specifically addresses the “special responsibilities” of  ________:

  • A.  Bar Counsel.
  • B.  Insurance Defense Lawyers
  • C.  Probate Lawyers
  • D.  Prosecutors  V.R.Pr.C. 3.8, Special Duties of a Prosecutor

Question 3

Attorney represents Client.  Having good cause to do so, Attorney moves to withdraw from the representation.  The motion is denied, and the trial court orders Attorney to continue to represent Client.  By rule,  ______:

  • A.  the trial court must certify an interlocutory appeal.
  • B.  Attorney must request reconsideration and, if denied, immediately appeal.
  • C.  Attorney shall continue to represent Client.   V.R.Pr.C. 1.16(c).
  • D.  disobeying the trial court’s order is not an ethics violation.

Question 4

Sole Practitioner called me with an inquiry. I listened, then shared my thoughts.  I added “by the way, I have no idea why, but there’s actually a rule that says if you do, you have to cease the private practice of law in the geographic area in which you’ve practiced.”

If you do . . .what?

  • A.   Get elected to the Legislature.
  • B.   Plead guilty to a crime.
  • C.   Get licensed in another profession.
  • D.   Sell your law practice.  V.R.Pr.C. 1.17(a).

Question 5

Speaking of the Devil . . .

Jabez Stone was a New England farmer who fell upon hard times.  In exchange for 7 years of prosperity, Stone sold his soul to Mr. Scratch.  When Mr. Scratch sought to enforce the contract, Stone retained a lawyer.  A famous trial ensued.

Name the lawyer who represented Stone.

Daniel Webster in The Devil & Daniel Webster, by Stephen Vincent Benet.

The Devil And Daniel Webster (Creative Short Stories) (Paperback ...