Five for Friday #132

See the source image

Welcome to Friday!

By the way – thank goodness that brew festivals aren’t subject to the same advertising rules as lawyers & law firms.  If they were, tonight’s Oktoberfest would be shut down for having a misleading name!

So, #132.  Regular readers know I usually try to tie a story to the number.

Not today.

Why not? Because it’s September 21.

What’s that got to do with anything?  Well, let me ask you this:

“Do you remember the 21st night of September?
Love was changing the minds of pretenders
While chasing the clouds away.”

~ Earth, Wind & Fire – “September”

I’ve got a good friend.  (shocker, right?)  Anyhow, her name is Jenn and she LOVES that song.  So much so that September 21 will always remind me of Jenn, my close friends, and lining up by height in my basement.

Let me explain.

March 12, 2005, was a Saturday.  That day, the UVM men’s basketball team hosted Northeastern in the America East conference championship game.  On the line? A trip to the NCAA Tournament.

I’d bought my condo the prior summer and, over the winter, had finished the basement.  By early March, the basement had a carpet, a tv, a couch, and a stereo with fantastic speakers.

As usual, and for television purposes, the AE title game tipped off at 11:00 AM.  Some of my friends came over for the game:  Jenn, Ryan, Kate, Deb, Seth, Tammy, and JD.  Yesterday, I texted each and asked them to share one memory of the day.  I messaged each individually so that nobody’s response would influence anyone else.  This blog is a compilation of their responses and my memories.

Jenn and Ryan arrived first, shortly after 10 AM with the others close on their heels.  Because why not start a party an hour before a game? Gotta make sure we can find the right channel!! Anyway, Jenn brought egg sandwiches. While the sandwiches warmed in my oven, the first mimosas were poured and we were off & running.

Which is probably why I don’t remember much about the game other than we watched it in the basement and UVM demolished Northeastern.  I didn’t even remember JJ Barea’s antics.  As Ryan recalled, less than a minute into the game, Northeastern’s star guard punched a UVM player in the face!

What I do remember is this: my friends didn’t leave my condo, or really my basement, until midnight.  That’s right. We spent 14 hours hanging out in the basement.

What’d we do? What any normal group of people would do: we lined up by height! Nearly every text I received yesterday mentioned it:

  • “my memory is us all lining up by height. Totally random.”
  • “my memory is so dumb. It was us lining up by height.For what reason, I can’t recall.”
  • “I remember a few . . . like lining up to see who was tallest. Seriously??”
  • “Lining up by height?”
  • “Didn’t we line up by height for some reason?”

Yes, yes we did.

We also listened to music, sang loudly, and danced awesomely.  Playing DJ, even though we had a real DJ there, I took requests. It was long before downloaded or streaming music, but I had a lot of CDs. Like, a lot. Still, for whatever reason, we listened to 2 songs about 500 times each.

The first: Far Behind by Candlebox.  (JD is really good – like REALLY good – at the fast part at the end.  So good that, each time the song played, I’d take a drink during that part so he wouldn’t know that I didn’t really know the words.)

The other? Jenn’s request:  September, by Earth, Wind & Fire.  Which is why today will always remind me of that day in my basement.

It’ll also remind me of something else: how great my friends are.

Yesterday, I had the opportunity to speak at Vermont Law School.  The topic was lawyer wellness and the crushing toll that the profession exacts from its members.  I was fortunate enough to share the podium with Professor Mark Latham and VLS student Phoenix Mikilas Meyers.  Each shared terrific strategies to maintain work-life balance, including the incredibly important point of making sure to take time away from work & away from the law.  This is a topic upon which I’ve often blogged:

Anyhow, and knock on wood, my work-life balance is pretty damned good.  One of the reasons: my friends.

No, we haven’t spent 14 hours in a basement since that day.  Life is life and, as it never fails to do, it has intervened.  Days like that are, well, like Candlebox sang, far behind us.  But we still see each other and stay in touch.  And for that I’m very grateful, because my friends make my life a better place.

My condo is under contract now.  Earlier this month, I got rid of a ton of clutter in anticipation of putting it on the market.  Sadly, I realized that I no longer have the one tangible item that is evidence of that long ago Saturday.

Back then, I was coaching.  There was a small dry erase clipboard in my basement.  One that I used to diagram plays during time-outs.  Kate & Deb drew on it.  All day.  An unbelievable kaleidoscope-like design that I never erased.  For years, I saved it as a memory of that day.  It made me a bit melancholy to realize I no longer had it, almost like a metaphor for life as, this weekend, summer turns to fall.

But I’ve got the memories.

And, 5, 10, 25 years from now, I’m still going to have the memories that my friends and I made. Those memories will last much longer than memories of a Saturday that I went to work to get less far behind.

Was it a foolish way to spend a day? Maybe.  But if you think so, your friends don’t dance and if they don’t dance, well, they’re no friends of mine.

Make time for what matters.  Friends who dance matter.

To Jenn, Ryan, Kate, Deb, Seth, Tammy, and JD: here’s to egg sandwiches, lining up by height, and making time for what matters.  Each of you is awesome! Thank you for being my friends.

By the way, I have way more than 7 friends.  Like, at least 9.  So you other friends, thank you too! Now do something blog worthy!

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

Lawyer represented Kennedy.   During the representation, Lawyer held funds in trust for Kennedy.  The representation ended last week.  How long must Lawyer keep records of funds that were held in trust for Kennedy?

  • A.   1 year from the termination of the representation.
  • B.   6 years from the termination of the representation.
  • C.   The rules do not specify a retention period for trust account records.
  • D.   The rules do not specify a retention period for trust account records, but by case law it’s 7 years from the termination of the representation.

Question 2

Attorney represents Client.  Attorney received information relating to the representation of Client that Attorney knows was not intended to be sent to Attorney.  Under the Vermont Rules of Professional Conduct,

  • A.  Attorney must notify sender.
  • B.  Attorney must ask Client for consent to notify the sender.
  • C.  Attorney must not read, review, or inspect the information.
  • D.  It depends. Who sent the information?

Question 3

Attorney called me with an inquiry. I listened, then said, “the rule says you can’t do it unless:

  1. the terms are fair & reasonable to the client, and fully disclosed in a writing that the client can understand;
  2. you advise the client, in writing, of the desirability of seeking independent legal advice, and give the client a reasonable opportunity to do so; and,
  3. the client gives informed consent, in a signed writing, to the terms, including whether you are representing the client in that matter.”

What did Attorney call to discuss?

  • A.  Settling a malpractice claim with a former client.
  • B.  Settling a malpractice claim with a current client.
  • C.  Entering into a business transaction with the client.
  • D.  The client’s application for an advance from a third-party litigation funding company.

Question 4

You are at a CLE.  Your hear me say “there is a rule of professional conduct that specifically prohibits (a) frivolous discovery requests; and, (b) the failure to make reasonably diligent efforts to respond to an adversary’s proper discovery requests.”

That statement is:

  • A.   True.
  • B.   Not exactly true, but there’s a rule that requires lawyers “to make reasonable efforts to expedite litigation” and, arguably, this conduct falls under that rule.
  • C.   False – but a violation of the civil, criminal, or family rules of procedure can rise to the level of a violation of the rules of professional conduct.
  • D.  Mike, wait . . lawyers make frivolous discovery requests and drag their feet responding to an opponent’s legitimate requests?

Question 5

Speaking of the advertising rules, Harvey is a television lawyer who often refers to himself as “the best closer in New York.”  Maybe he is, maybe he isn’t.

Perhaps his bigger ethical concern should be that he hired an associate, Mike, who he knew hadn’t graduated from college, gone to law school, or passed the bar exam. Well, neaver passed the bar exam while taking it as himself.  Mike had passed many times while being paid to take the bar exam for others.

In real life, both actors attended this summer’s biggest wedding.

Name the show.

 

 

 

 

 

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Monday Morning Answers #131

Happy Monday!

For those of you who venture to the NEK to bike or run, I highly recommend the Beebe Spur Rail Trail. I found it this weekend.  From the hospital, it’s just over 5 miles to the border.  Flat, packed gravel, beautiful views of Lake Memphramagog.  Or, add a few miles by parking downtown and using the Newport Rec Path to get to Beebe Spur. More great views.

Beebe

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

Honor Roll

Answers

Question 1

You’re at a CLE.  You hear me say:

  • “The privilege is different from the rule.  The rule talks about ‘information relating to the representation.’ A comment makes clear that the rule encompasses more than the privilege.”

What was I talking about?

  • A. File delivery & work product
  • B.  Client confidences.  Rule 1.6(a), Comment [3].
  • C.  Storing client information in the cloud
  • D.  Inadvertent production of privileged information

Question 2

In Vermont, most conflicts are imputed from the conflicted lawyer to other lawyers in the same firm.

True or false: unlike other conflicts, imputed conflicts cannot be waived by the affected client.

FALSE.  Rule 1.10(c).

Question 3

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

  • “It depends. Did you receive information that could be significantly harmful to the person?”

Most likely, “the person” refers to:

  • A.  a former client of Lawyer’s
  • B.  a current client of Lawyer’s
  • C.  a prospective  client who met with, but did not retain, Lawyer.  Rule 1.18(c).
  • D.  opposing counsel

Question 4

How long must Vermont lawyers keep copies of advertisements?

  • A.   2 years
  • B.   6 years
  • C.   It depends. Print ads or electronic ads?
  • D.   They don’t.  The rule requiring retention of ads was repealed in 2009.

Question 5

As I mentioned above, 131 includes 3.1.   Rule 3.1 makes it a disciplinary violation to file a frivolous lawsuit.

One of the most misunderstood lawsuits of all time involved hot coffee and McDonald’s.  It’s not as frivolous as the legend that has grown around it would have you believe.

Anyhow, the suit served as the inspiration for an episode of a famous tv show in which one of the main characters sued Java World for burns that resulted from hot coffee.  Java World was prepared to make an opening offer of free coffee for life and $50,000.

The character & his lawyer showed up to meet with representatives from Java World and their attorney.  The Java World attorney said “we are prepared to offer you all the free coffee you want at any of our stores throughout North America and Europe, plus . . .”

Before he could finish, the character jumped from his seat, shook the Java World’s attorney’s hand and, without consulting with counsel, exclaimed “I’ll take it!!!!”

Name the character.

Cosmo Kramer, Seinfeld.  The scene is here.

Five for Friday #131

So, #131!

131 will always remind me what an idiot I am.  In particular, my utter incompetence at the 2013 New Bedford Half Marathon.  And it has nothing to do with the fact that a half marathon is 13.1 miles.

I started running in 2006.  Friends asked me to run on a relay team they’d entered in the Vermont City Marathon.  I agreed and was fortunate enough to run the final leg.

When you run the last leg, you get to cross the finish line.  The adrenaline rush from the crowd at the finish on Burlington’s Waterfront was unreal.  I was hooked on races. And, in 2008, ran my first full marathon.

I spent the next several years trying and failing to qualify for the Boston Marathon.  Back then, I had to finish a marathon in under 3:20 to qualify for Boston. I never ran better than 3:28.

So, in 2012, I hired a coach.  It is the most meritorious claim in history to state that RunVermont’s Jess Cover is the best running coach ever. (see how I worked Rule 3.1 into this 131 column?)  Under her tutelage, I finished the 2012 VCM in 3:19:07, thereby qualifying for the 2013 Boston Marathon. Out of respect for the race, I wanted to run it well. So, I continued to work with Jess.

Every March, there’s a half marathon in New Bedford, MA.  It sets up perfectly as a training run for Boston, a race that’s held on the third Monday in April.  We had 2 goals for the 2013 New Bedford half: (1) treat it as a sort of dress rehearsal for Boston; and (2) finish in less than 1 hour 30 minutes.

For you lawyers, dress rehearsal runs are quite similar to a mock trial or a moot court prior to an appellate argument.  You use them to prepare for the real event.

Up until then, I’d often battled cramps late in marathons.  Usually in my calves, but sometimes in my hamstrings.  Here’s a picture that my high school football teammate  Bobby Hill snapped at the precise moment that my left hamstring cramped as I passed his house in the 2010 Vermont City Marathon:

VCM Cramp

 

Anyhow, part of the plan for 2013 Boston was for me to take salt tabs during the race.    Having never used them before, Jess wanted me to practice using them during the New Bedford Half.  I remember thinking “who needs to practice taking a pill?”

Famous last words.

March 17, 2013, was a perfect day for a half marathon.  It was about 40 degrees, no wind, overcast.  The first several miles were great.  I was on pace to run under 1:30 and things were looking & feeling good.

Then I took my salt tab.

I didn’t carry water with me that day.  I had planned to, but decided against it at the last minute, concluding that there were plenty of water stations on the course.  Foolishly, when I took my salt tab, I was nowhere near a water station.

Turns out, salt tabs aren’t exactly small.  Definitely bigger than vitamins.  And they don’t dissolve quickly.  In fact, absent water or gatorade to wash them down, they get stuck in your throat.  At least mine did.  No exaggeration, I thought I was choking to death.

I stopped running and walked off the course.  I headed towards a group of people that included a police officer.  I couldn’t talk. So, I made the universal sign for “please help, I’m choking.” Meaning, I grabbed my throat and made sure the officer could see that my eyes had quadrupled in size from sheer panic.

Apparently the officer didn’t know the universal sign. Either that or he had mastered the skill of remaining standing while catatonic.  He offered no help whatsoever.

I was scared out of my wits.  And not only because I thought I’d soon pass out.  Also because I was thinking “mom is going to be so mad at me for dying from a salt tab.”

Then, it dislodged.  The whole episode probably took no more than 10 seconds.  But it felt like 10 hours. And it messed up my mind for another mile or so.

I finished in 1:30:24.  At the time, it was my fastest half marathon.  But I was bitter. (salty?)  Beyond angry at myself for being too incompetent to properly take a salt pill and, as a result, blowing my chance at running a sub-1:30.

If you ask a runner their time for any particular race, most do not include the seconds in their response.  For example, a 1:30:24 is “I ran a 1:30.”  And, we always round down.

For that race, I will never round down.  To me, it’ll always be a 1:31.

Onto the quiz!

RULES

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

Question 1

You’re at a CLE.  You hear me say:

  • “The privilege is different from the rule.  The rule talks about ‘information relating to the representation.’ A comment makes clear that the rule encompasses more than the privilege.”

What was I talking about?

  • A. File delivery & work product
  • B.  Client confidences
  • C.  Storing client information in the cloud
  • D.  Inadvertent production of privileged information

Question 2

In Vermont, most conflicts are imputed from the conflicted lawyer to other lawyers in the same firm.

True or false: unlike other conflicts, imputed conflicts cannot be waived by the affected 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 the person?”

Most likely, “the person” refers to:

  • A.  a former client of Lawyer’s
  • B.  a current client of Lawyer’s
  • C.  a prospective  client who met with, but did not retain, Lawyer
  • D.  opposing counsel

Question 4

How long must Vermont lawyers keep copies of advertisements?

  • A.   2 years
  • B.   6 years
  • C.   It depends. Print ads or electronic ads?
  • D.   They don’t.  The rule requiring retention of ads was repealed in 2009.

Question 5

As I mentioned above, 131 includes 3.1.   Rule 3.1 makes it a disciplinary violation to file a frivolous lawsuit.

One of the most misunderstood lawsuits of all time involved hot coffee and McDonald’s.  It’s not as frivolous as the legend that has grown around it would have you believe.

Anyhow, the suit served as the inspiration for an episode of a famous tv show in which one of the main characters sued Java World for burns that resulted from hot coffee.  Java World was prepared to make an opening offer of free coffee for life and $50,000.

The character & his lawyer showed up to meet with representatives from Java World and their attorney.  The Java World attorney said “we are prepared to offer you all the free coffee you want at any of our stores throughout North America and Europe, plus . . .”

Before he could finish, the character jumped from his seat, shook the Java World’s attorney’s hand and, without consulting with counsel, exclaimed “I’ll take it!!!!”

Name the character.

 

 

 

Monday Morning Answers #130

Welcome to the week!  Friday’s questions are here.  Before I get to the Honor Roll & answers, it was great to see so many lawyers both participating in and volunteering at yesterday’s Pine Street Mile. Wellness is a thing.

Honor Roll

Answers

Question 1

There’s a rule that prohibits lawyers from making “a false or misleading communication about _____________.”   Per the rule, “a communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.”  It’s the rule on:

  • A.  Communicating with an Unrepresented Person
  • B.  Candor to a Tribunal
  • C.  Communications Concerning a Lawyer’s Services.  Rule 7.1.
  • D.  Puffery (Statements made in negotiations)

Question 2

Lawyer settled a PI claim on behalf of client.  The insurance company sent Lawyer a check.  Lawyer deposited the check into trust yesterday.  Client wants her money now, before the weekend.

Under Vermont’s rules, which is most accurate?

  • A.  Lawyer cannot disburse funds to client until the check clears.
  • B.  Lawyer violated the rules. The check should not have been deposited into trust.
  • C.  It depends on the terms of the fee agreement.
  • D.  If the insurance company is licensed to do business in Vermont, Lawyer can disburse in reliance upon the deposit, without waiting for the check to become “collected funds.”  Rule 1.15(g)(5).

Question 3

Lawyer called me with an inquiry.  My response included this statement:  “Even if you are ‘necessary,” the rule applies ‘at trial.’ And there’s an argument that it means ‘at a jury trial.’ ”

Given my response, Lawyer called to talk about the rule on:

  • A.  Representing an Organization
  • B.  Candor to a Tribunal
  • C.  Fairness to Opposing Party & Counsel
  • D.  Lawyer as a Witness.  Rule 3.7

Question 4

Fill in the blank.

There’s a rule on prospective clients.  Per the rule, if a prospective client consults with a lawyer in good faith, but no attorney-client relationship ensues, the lawyer’s duty of loyalty to the prospective client is relaxed.  However, the rule makes clear that the lawyer’s duty of confidentiality to the prospective client is not relaxed.

Confidentiality.  Rule 1.18(b).

Question 5

The rules require lawyers to reduce contingent fee agreements to writing.

Hollywood talent lawyers take a cut of their clients’ earnings.  Apparently, they don’t always reduce their fee agreements to writing.

Indeed, in late August, a California court voided a “handshake deal” between a movie star and the star’s lawyer.  The deal was made in 1999.  With it having been voided for not being in writing, the movie star is now seeking the return of approximately $30 million paid to the lawyer over the past 20 years.

Name the movie star.

Johnny Depp.  The ABA Journal has the story here.

See the source image

Five for Friday #130

Welcome to Friday!

I don’t associate 130 with anything.  I seem to recall that The Young & The Restless came on at 1:30, but I was never a fan, so I’m not sure.  I was, of course, a fan of Guiding Light.  It came on at 3.  I used to record it then watch the entire week on Saturday morning.  Everyone knows that the Monday thru Thursday episodes were useless…fast-forward to Friday baby!

Anyhow, a few years ago, I did a CLE for the State’s Attorneys at Jay Peak.  After the CLE, I spotted the actor who played Phillip Spaulding on GL in the hotel bar.  That near brush with D-list fame remains one of the highlights of my legal career.

Obviously, it’s been a career filled with remarkable highlights.

So, with nothing about 130 jumping to mind, I’d be remiss not to mention Burt Reynolds.

Aside – I can’t believe he was 82!  Seems impossible.

Here’s my personal ranking of Burt Reynolds movies:

  1. Smokey & The Bandit
  2. Boogie Nights
  3. Sharky’s Machine (mainly because I really liked the book)

Notably absent: The Deliverance.  Never liked that movie. Never will.

Now, I get it if you rank The Deliverance or Boogie Nights ahead of Smokey & The Bandit.  While Smokey & The Bandit might not have been the best movie ever, it was significant to my brother and our friends. So that’s what makes it my #1.

First of all, I think we saw it at the drive-in.  The drive-in!  My brother and I loved the drive-in.  I know for a fact that’s where we saw the epic double feature Escape from Witch Mountain and The Apple Dumpling Gang.  I think it’s also where we watched every single Herbie The Lovebug  movie.

Even if we saw Smokey & The Bandit in a theatre, it’s still significant to me.  My brother and our friends spent the 2 or 3 (or 8) years following the movie talking in nothing but CB lingo.  And I have happy memories of doing so.

The joys of remembering the kooky things that, as a kid, were so very, very important.

So, I’ll end with this:

Breaker 1-9, Breaker 1-9 . . . for all of you with your ears on, turn on the bird dog or keep it in the granny lane.  There’s bears in the bushes taking pictures all along the boulevard. And Snowman laid eyes on kojaks with kodaks on either side of Tom Brady.  Otherwise, keep the hammer down and do what they say can’t be done.  Out.

RIP Bandit.   Eastbound and down . . . .

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

There’s a rule that prohibits lawyers from making “a false or misleading communication about _____________.”   Per the rule, “a communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.”  It’s the rule on:

  • A.  Communicating with an Unrepresented Person
  • B.  Candor to a Tribunal
  • C.  Communications Concerning a Lawyer’s Services
  • D.  Puffery (Statements made in negotiations)

Question 2

Lawyer settled a PI claim on behalf of client.  The insurance company sent Lawyer a check.  Lawyer deposited the check into trust yesterday.  Client wants her money now, before the weekend.

Under Vermont’s rules, which is most accurate?

  • A.  Lawyer cannot disburse funds to client until the check clears.
  • B.  Lawyer violated the rules. The check should not have been deposited into trust.
  • C.  It depends on the terms of the fee agreement.
  • D.  If the insurance company is licensed to do business in Vermont, Lawyer can disburse in reliance upon the deposit, without waiting for the check to become “collected funds.”

Question 3

Lawyer called me with an inquiry.  My response included this statement:  “Even if you are ‘necessary,” the rule applies ‘at trial.’ And there’s an argument that it means ‘at a jury trial.’ ”

Given my response, Lawyer called to talk about the rule on:

  • A.  Representing an Organization
  • B.  Candor to a Tribunal
  • C.  Fairness to Opposing Party & Counsel
  • D.  Lawyer as a Witness

Question 4

Fill in the blank.

There’s a rule on prospective clients.  Per the rule, if a prospective client consults with a lawyer in good faith, but no attorney-client relationship ensues, the lawyer’s duty of loyalty to the prospective client is relaxed.  However, the rule makes clear that the lawyer’s duty of _____________ to the prospective client is not relaxed.

Question 5

The rules require lawyers to reduce contingent fee agreements to writing.

Hollywood talent lawyers take a cut of their clients’ earnings.  Apparently, they don’t always reduce their fee agreements to writing.

Indeed, in late August, a California court voided a “handshake deal” between a movie star and the star’s lawyer.  The deal was made in 1999.  With it having been voided for not being in writing, the movie star is now seeking the return of approximately $30 million paid to the lawyer over the past 20 years.

Name the movie star.

 

 

 

Monday Morning Answers – #129

Happy Labor Day!

Is it hot & humid?  Yes!  But, you have a choice how you respond to the weather.  One choice is to bemoan it & sit on the couch all day.  Another is to smile at the thought of one more day to wear shorts, flip-flops, and to be outdoors!  Maybe even by the grill with a cold beverage . . . on a Monday!

I choose the latter.

Friday’s questions are here.  The answers follow the honor roll.  Also, you’ll recall that I asked readers to share the events seared into their memories.  I did so in the context of Friday being the anniversary of Princess Diana’s passing.  As always with my readers, the response was fantastic and significantly outnumbered entries into the quiz.

The most-cited events were to be expected:

  • 9/11
  • the space shuttle Challenger tragedy

A few others mentioned by at least 3 people:

  • JFK assassination
  • Sandy Hook
  • MLK assassination
  • the moon landing
  • Princess Diana
  • Boston Marathon bombings
  • Barack Obama elected

Interestingly, but perhaps not surprisingly given the frequent musical references on this blog, many of you will never forget where you were & what you were doing when you learned that a musician died.  Among the musicians whose deaths were mentioned more than once:

  • Kurt Cobain
  • Jerry Garcia
  • John Lennon
  • Jim Morrison
  • Elvis Presley
  • Prince
  • Tupac Shakur

Anyhow, thank you again for sharing. I love your stories.  Alas, to make the honor roll, you’ve got to answer the questions!

Honor Roll

(responses had to include quiz answers to make the honor roll)

Answers

Question 1

Lawyer called me with an inquiry.  My response included the following words and phrases:  “knowledge,” “violation,”  “substantial question,”  and “honesty, trustworthiness, fitness.”

What did Lawyer call to discuss?

  • A.  Informing a court that a client had testified falsely in a civil matter.
  • B.  Informing a court that a criminal defense client had testified falsely.
  • C.  Reporting another lawyer’s misconduct.  See, Rule 8.3(a).
  • D.  Whether reciprocal discipline would be imposed in Vermont as a result of Lawyer being sanctioned in another state.

Question 2

The conflicts rules are NOT relaxed for:

  • A.  Lawyers who transfer from one private firm to another.
  • B.  Lawyers who move from government practice to private practice.
  • C.  Lawyers who provide short-term pro bono services under the auspices of a program sponsored by a nonprofit or court.
  • D.  All of the above.

Vermont’s rules do not allow for the automatic screening of lateral transfers.  I’ve blogged on that issue here & here.  Later this month, the PRB will consider a rule change that I’ve recommended that would allow a new firm to screen a lateral transfer from another firm.

Our rules allow for screening when a lawyer moves from government practice to private practice.  In addition, Rule 6.5 relaxes the conflicts rules for lawyers who provide short-term pro bono services under the auspices of a program sponsored by a nonprofit or court.

Question 3

You’re at a CLE.   You hear me say:  “yes, it’s okay as long as  (1) your client gives informed consent; (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and (3) information relating to the representation of your client is protected as required by Rule 1.6.”

What did someone ask if it was okay to do?

  • A.  Accept compensation for representing a client from someone other than the client.  See, Rule 1.8(f).
  • B.  Request that guardian be appointed for the client.
  • C.  Represent co-defendants in a criminal matter.
  • D.  Talk to the media in a client’s case.

Question 4

Client provides Lawyer with an advance payment of $2,000.  Lawyer has yet to do any work for Client.

Which is most accurate?

  • A.  The fee agreement must be confirmed in writing.
  • B.  The fee agreement must be confirmed in a writing that is signed by Client.
  • C.  The $2,000 must go into Lawyer’s pooled interest-bearing trust account (“IOLTA”).
  • D.  Lawyer may treat the money as Lawyer’s own if Lawyer confirms in writing (i) that the fee is not refundable; and (ii) the scope of availability or services that Client will receive.    See, Rule 1.5(f) & (g).

Here, A & B are not correct.  The rules do not require standard fee agreements to be reduced to writing.  That being said, I think it’s a bad idea not to.

C is not correct. There’s not enough information in the question to know.  For instance, if the lawyer has complied with Rule 1.5(f) and (g), then the money cannot go into trust.

Many lawyers charge “flat fees” that are “earned upon receipt” and treat the funds as their own upon receipt.  This is ok ONLY IF THE LAWYER COMPLIES WITH RULE 1.5(f) and RULE 1.5(g).  Otherwise, the money must go in trust until earned.

Question 5

Speaking of the JFK assassination . .  .

. . . Jules Mayer was a lawyer in Dallas.  In 1950, Mayer drew up a will for a client.  The will named Mayer as the executor the client’s estate.

The client died in 1967.  A dispute quickly arose, as the client’s family contended that the client had changed his will on his deathbed to remove Mayer as executor.  Mayer refused to make the change and kept the original will.

In 1991, after a lengthy legal battle, a probate court granted the family’s petition to remove Mayer as executor after concluding that he had mismanaged the estate.

Central to the dispute was gun associated with the JFK assassination.  Mayer’s client bought the gun for $62.50.   After winning their legal battle with Mayer, the client’s family sold the gun for $220,000.  Fortunately for the family, Mayer had safeguarded the gun, holding it in trust for 24 years.

Two-part question:

  1. Who was Mayer’s famous client?
  2. Who was the famous victim of the client’s gun?

Mayer’s client was Jack Ruby.  The gun was used on Lee Harvey Oswald.  A story of the gun is in this article in the Las Vegas Sun.

See the source image

Five for Friday #129

21 years ago today I went to Albany (NY) to visit Todd Sinkins, one of my law school roommates.  I remember that I went with Erin, a woman I was dating at the time, but I don’t recall why we went.

So, why do I recall it at all?

Because I remember having just exited interstate 87 onto Western Avenue when we heard that Princess Diana had died.

For some odd reason, I’m fascinated by events that are seared into the memories of an entire generation.  For example, both of my parents know exactly where they were when they learned that JFK had been assassinated.  And each has a clear memory of being at my grandparents’ house in Bradford on the day of the first moon landing.

Actually, it’s not necessarily the events that fascinate me.  It’s whatever “it” is that causes an entire generation to remember an event forever.  Sadly, tragedy & grief appear to be the tie that binds us all.  For example, I’m guessing that most in my grandparents’ generation have vivid memories of where they were & what they were doing when they learned that Pearl Harbor had been attacked.  And, for people my age, I’m fairly certain that 9/11 is “that” event.

Last night, I wondered whether Diana’s death qualifies as well.  So, I thought I’d throw the question to my readers – what are the events seared into the memories of your generation or, as I suppose is the case with 9/11, multiple generations?

Feel free to share.  The aspect of this Friday column that I like the most – in fact that I love – are the stories you send in response.  Last week’s stories of memories of fairs, endless summers, and young crushes were amazing.  Indeed, the column sparked more stories from my readers than any other, moving ahead of your superstitions and your respective stances in the Beatles v. Stones debate.

Now, a ground rule.  I’m not referring to something that just you will always remember.  For instance, I’ve shared my indelible memory of costing the Red Sox the 1986 World Series. Or, I have a reader who will never forget where he was when he learned that Frank Sinatra had died.  (I see you Uncle Drew!) For this exercise, neither would count.  I’m looking for collective memories.

I look forward to hearing from you.  In the meantime, I hope you have a fantastic long weekend, one that includes lots of things that have nothing to do with work.

Oh, and for you persnickety readers who prefer every Friday column to be tied to the week’s number, fear not!  Diana was born and married in July.  Respectively, on the 1st and 29th.  So, there you have it: 129.

Onto the quiz!

Image result for diana

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

Lawyer called me with an inquiry.  My response included the following words and phrases:  “knowledge,” “violation,”  “substantial question,”  and “honesty, trustworthiness, fitness.”

What did Lawyer call to discuss?

  • A.  Informing a court that a client had testified falsely in a civil matter.
  • B.  Informing a court that a criminal defense client had testified falsely.
  • C.  Reporting another lawyer’s misconduct.
  • D.  Whether reciprocal discipline would be imposed in Vermont as a result of Lawyer being sanctioned in another state.

Question 2

The conflicts rules are NOT relaxed for:

  • A.  Lawyers who transfer from one private firm to another.
  • B.  Lawyers who move from government practice to private practice.
  • C.  Lawyers who provide short-term pro bono services under the auspices of a program sponsored by a nonprofit or court.
  • D.  All of the above.

Question 3

You’re at a CLE.   You hear me say:  “yes, it’s okay as long as  (1) your client gives informed consent; (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and (3) information relating to the representation of your client is protected as required by Rule 1.6.”

What did someone ask if it was okay to do?

  • A.  Accept compensation for representing a client from someone other than the client.
  • B.  Request that guardian be appointed for the client.
  • C.  Represent co-defendants in a criminal matter.
  • D.  Talk to the media in a client’s case.

Question 4

Client provides Lawyer with an advance payment of $2,000.  Lawyer has yet to do any work for Client.

Which is most accurate?

  • A.  The fee agreement must be confirmed in writing.
  • B.  The fee agreement must be confirmed in a writing that is signed by Client.
  • C.  The $2,000 must go into Lawyer’s pooled interest-bearing trust account (“IOLTA”).
  • D.  Lawyer may treat the money as Lawyer’s own if Lawyer confirms in writing (i) that the fee is not refundable; and (ii) the scope of availability or services that Client will receive.

Question 5

Speaking of the JFK assassination . .  .

. . . Jules Mayer was a lawyer in Dallas.  In 1950, Mayer drew up a will for a client.  The will named Mayer as the executor the client’s estate.

The client died in 1967.  A dispute quickly arose, as the client’s family contended that the client had changed his will on his deathbed to remove Mayer as executor.  Mayer refused to make the change and kept the original will.

In 1991, after a lengthy legal battle, a probate court granted the family’s petition to remove Mayer as executor after concluding that he had mismanaged the estate.

Central to the dispute was gun associated with the JFK assassination.  Mayer’s client bought the gun for $62.50.   After winning their legal battle with Mayer, the client’s family sold the gun for $220,000.  Fortunately for the family, Mayer had safeguarded the gun, holding it in trust for 24 years.

Two-part question:

  1. Who was Mayer’s famous client?
  2. Who was the most famous victim of the client’s gun?

 

 

 

Monday Morning Answers #128

It makes her think of me.

Friday’s reflection on fairs gone by is here.  The answers follow today’s honor roll.

But first, I spent some time in the NEK this weekend, running both around Island Pond and along Lake Willoughby. I’ve been up there often, but have never come over Bald Mountain from Island Pond to Willoughby.  The views from Sentinel Rock State Park are phenomenal!  I imagine the area is prime leaf peeping territory.

Sentinel Rock

Sadly, don’t wait too long!  The northern side of the mountain already has several patches of red . . .in AUGUST! I assume the early color is due to the dry summer. Alas, Willoughby itself was warm and as crystal clear as ever.  If you get a chance, it’d be a great spot to beat the heat the week!

Honor Roll

Answers

Question 1

Which belongs somewhere else than with the others?

A lawyer shall:

  • A.   keep the client reasonably informed about the status of the matter.
  • B.   explain the matter to the extent reasonably necessary to permit the client to make informed decisions.
  • C.  in an ex parte proceeding, inform the court of all material facts known to the lawyer which will enable the court to make an informed decision
  • D.   Trick question. All 3 are in separate rules.

C is in Rule 3.3(d), and is an aspect of the larger duty of candor to a court.  A & B are parts of Rule 1.4 and the duty to communicate with a client.

Question 2

True or false.

There’s a rule that specifically requires a lawyer to make reasonable efforts to expedite litigation, consistent with the interests of the client.

TRUE – Rule 3.2

Question 3

By rule, a lawyer shall not act as an advocate in a trial in which:

  • A.  the lawyer is likely to be a “necessary witness”
  • B.  another lawyer in the lawyer’s firm is a party
  • C.  another lawyer in the lawyer’s firm is a witness
  • D.  All of the above.

This is the language from Rule 3.7 and disqualifies the lawyer who is likely to be a necessary witness from acting as an advocate at trial.  The situations in B & C are not absolute bans, but only DQ the lawyer if the relationships otherwise create a conflict.

Question 4

A client’s failure to abide by the terms of a fee agreement:

  • A.   is not grounds for a lawyer to move to withdraw
  • B.   mandates that the lawyer move to withdraw
  • C.   permits the lawyer to move to withdraw.  Rule 1.16(b)(5); See also Comment [8]
  • D.  is not covered by the rules of professional conduct

Question 5

Inspired by a recent text from one of the first people ever to follow this blog.

Bob Loblaw is the Bluth family lawyer on Arrested Development.  His advertising slogan is “You don’t need double talk, you need Bob Loblaw!”  Also, as do all great lawyers, he blogs.  His blog is the “Bob Loblaw Law Blog.”  The Bluth family hired Bob to replace the incompetent Barry Zuckerkorn.

In real life, the actors who play Loblaw and Zuckerkorn also played characters in a sitcom that debuted 30 years before Arrested Development.

Name the sitcom.

First, if you didn’t pick up on the joke, Bob Loblaw is named as such in order to sound like “blah blah blah.”  His blog is “blah, blah, blah, blah, blah.” 

Scott Baio plays Loblaw and Henry Winkler plays Zuckerkorn.   An eternity ago, the two played Chachi & Arthur Fonzarelli (Fonzie) in Happy Days.

See the source image

Five for Friday #128

She kept the hotel key.

Welcome to #128!  Vermont Route 128 is, of course, how I get to the Steeple Market, which is the official market of this blog.  And, of course, Route 128 ends in Essex, home of the Champlain Valley Fair.  Where, tonight, the gang and I are going to the Old Dominion concert.

I love the fair.  ALways have.  I’m not positive, but I think my parents used it as a baby-sitting tool when I was a kid.

Michael, take your brother to the fair.”

“Mom, it’s like 7AM.”

“Now!  And stay all day.”

“That’s what we did yesterday.”

“Michael!!!”

Latchkey kids are the best.  But, I digress.

Oddly, for liking the fair so much, I do not like rides.  Not one single bit. Mainly because I’m a big ole chicken.  I have vivid memories of paralyzing fear gripping me – – as I stood in line for a ride!  The ride itself?  Awful. Like, on a scale of 1-10, it was infinity level of awful.  I’d close my eyes and pray for the entire ride.  I think my stomach might clutch tonight if I even happen to glance at the Pirate Ship.

No, for me, it’s the food.  And the people watching.  But mostly the food.  Fried dough.  Al’s French Frys.  The magical building where every single food item is maple. I mean, seriously, how awesome is that?  EVERY SINGLE THING HAS MAPLE!  Maple!  Nature’s best condiment!  (well, after peanut butter).

But the best of them all?  Mr. Sausage.

Back in the day, I worked at a gas station on Shelburne Road.  My buddy Skip’s dad owned it.  Skip knew Stan Gumieny, aka Mr. Sausage, and we both knew Stan’s daughters, Julie & Jill. For 2 summers, I took a week off from working at the gas station so I could work for Stan, grilling sausages at the Fair.

Sweet Italian sausage.  Hot and spicy sausage.  Grilled peppers & onions, the greasier the better.  So much mustard that the health department might arrest you on the spot.

I don’t remember many details.  I remember it was hard work.  Hot, and busy.  And I was kind of lazy – Stan often had to yell at me not to serve sausages that were only half-cooked.  Health regulations or something silly like that.  But I had a crush on Jill, so I was more than willing to work double shifts.

And the smell.  I always loved the smell of the food at the Fair.   I know you all know what I mean.  Drop me in blindfolded and tell me to guess where I am, it’d take a millisecond. And, to this very day, even though I rarely eat it, I love the smell of sausage being grilled.

Mostly, I recall it as being fun.  Hanging out with my friends, acting like we were real restraunteurs, cranking the tunes & drinking beers as we cleaned the grills each night after closing.  Endless, in our minds. Looking back, it’s one of those things that you do, having no idea how good you have it at the time.

It was the best summer job I ever had.

Alas, as it does, life intervened.  Summers end.

I haven’t seen Skip, Jill, or Julie in forever. I don’t even know where they are.  But, I know this: tonight, whether or not he still works the grill, Stan’s Mr. Sausage stand will be at the fair, serving up fully cooked, fantastically tasty sausages.

And I’m going to have one.

Onto the quiz!

Rules

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception: if you must, open book for Question 5 . But, we try to play that one straight.
  • 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 belongs somewhere else than with the others?

A lawyer shall:

  • A.   keep the client reasonably informed about the status of the matter.
  • B.   explain the matter to the extent reasonably necessary to permit the client to make informed decisions.
  • C.  in an ex parte proceeding, inform the court of all material facts known to the lawyer which will enable the court to make an informed decision
  • D.   Trick question. All 3 are in separate rules.

Question 2

True or false.

There’s a rule that specifically requires a lawyer to make reasonable efforts to expedite litigation, consistent with the interests of the client.

Question 3

By rule, a lawyer shall not act as an advocate in a trial in which:

  • A.  the lawyer is likely to be a “necessary witness”
  • B.  another lawyer in the lawyer’s firm is a party
  • C.  another lawyer in the lawyer’s firm is a witness
  • D.  All of the above.

Question 4

A client’s failure to abide by the terms of a fee agreement:

  • A.   is not grounds for a lawyer to move to withdraw
  • B.   mandates that the lawyer move to withdraw
  • C.   permits the lawyer to move to withdraw
  • D.  is not covered by the rules of professional conduct

Question 5

Inspired by a recent text from one of the first people ever to follow this blog.

Bob Loblaw is the Bluth family lawyer on Arrested Development.  His advertising slogan is “You don’t need double talk, you need Bob Loblaw!”  Also, as do all great lawyers, he blogs.  His blog is the “Bob Loblaw Law Blog.”  The Bluth family hired Bob to replace the incompetent Barry Zuckerkorn.

In real life, the actors who play Loblaw and Zuckerkorn also played characters in a sitcom that debuted 30 years before Arrested Development.

Name the sitcom.

Monday Morning Answers: #127

Welcome to Monday.  It’s August 13th.

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

Honor Roll

  • Evan BarquistMontroll, Backus & Oettinger
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, John Marshall Law School
  • William V. Cristman, Jr.
  • Andrew Delaney, Martin & Associates
  • Bob Grundstein, Esq.
  • Anthony IarrapinoWilschek & Iarrapino
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy, JB Kennedy Associates, My Mom
  • Tom LittleLittle & Cicchetti
  • Kevin LumpkinSheehey Furlong & Behm
  • Hal Miller, First American
  • Lon McClintockMcClintock Law Offices
  • Jeff MessinaBergeron Paradis Fitzpatrick
  • Herb Ogden
  • Jody Racht, Assistant Attorney General
  • Jay Spitzen, Esq.

Answers

Question 1

Rule 1.2 makes it clear that the client controls the objectives of a representation, with the means by which those objectives are pursued left to the lawyer in consultation with the client. In addition, I often remind lawyers to set & manage client expectations, especially with clients who have unreasonably High Hopes.

With these thoughts in mind, I’ve used Sinatra to caution lawyers against taking the client who:

  • A.   Instructs the lawyer “thanks, but we’ll do it my way.”
  • B.   Calls, emails, or texts every day saying “call me!”
  • C.   Has a long list of ex-lawyers
  • D.  Can’t get no satisfaction

I warn about each of the 4.  But the key word in the question was “Sinatra.” As he sang, “I did it my way.”  B is the Blondie client, C is the Taylor Swift client (Blank Space), and D is the Rolling Stones client.

Question 2

Love and Marriage.

True or false.

The rules specifically prohibit an attorney from representing a client in a matter in which a person whose interests are adverse to the client’s is represented by the attorney’s spouse.

False.  But, see Comment 11 to Rule 1.7“When lawyers representing different clients in the same matter or in substantially related matters are closely related by blood, marriage, or civil union, there may be a significant risk that client confidences will be revealed and that the lawyer’s family relationship will interfere with boy loyalty and independent judgment. As a result each client is entitled to know of the existence and implications of the relationship between the lawyers before the lawyer agrees to undertake the representation.  Thus, a lawyer related to another lawyer, e.g. as a parent, child, sibling, spouse or civil union partner, ordinarily may not represent a client in a matter where that lawyer is representing another party unless each client gives informed consent.”

Question 3

Lawyer represents Organization.   Organization is governed by a board.

Do the rules allow Lawyer to represent Chairman of the Board individually in a matter in which Lawyer also represents Organization?

  • A.  No.
  • B.   Yes.
  • C.   Yes, subject to the normal conflicts rules.  See, Rule 1.13(g).
  • D.   Trick question.  By representing Organization, Lawyer automatically has an attorney-client relationship with the Chairman of the Board in his individual capacity.

Question 4

Lawyer meets with Client.  Client isn’t focused on the subject matter of the representation and, instead, repeatedly tells Lawyer things like “Come Fly With Me,” and “Fly Me to the Moon!”  Lawyer suspects that Client might suffer from a diminished capacity.

Under the rules, Lawyer’s initial duty is to:

  • A.   Withdraw
  • B.   Withdraw, unless Client agrees to a voluntary guardianship
  • C.   File for an involuntary guardianship
  • D.   As far as reasonably possible, maintain a normal client-lawyer relationship with client.  See, Rule 1.14(a).

Question 5

Sinatra won an Academy Award for Best Supporting Actor for a movie that was released in 1953.  He played a soldier who befriended a former boxer.  The former boxer resisted a superior’s efforts to get him to join the regiment’s boxing team.

According to Hollywood legend, the manner in which Sinatra obtained the role wouldn’t exactly comply with Rules 3.4 (fairness to opposing party & counsel) and 4.4 (respect for the rights of third persons). Indeed, legend has it that the famed “horse head in the bed” scene in The Godfatherrefers to the methods by which Sinatra obtained the role.

Name the movie, released in 1953, for which Sinatra won the Oscar for Best Supporting Actor.

FROM HERE TO ETERNITY

See the source image