Monday Morning Answers #170

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

Honor Roll

• Karen Allen
• Evan Barquist, Montroll, Backus & Oettinger
• Penny Benelli, Dakin & Benelli
• Alberto Bernabe, Professor, John Marshall Law School
• Honorable John M. Conroy, United States Magistrate Judge, District of Vermont
• Erin Gilmore, Ryan Smith & Carbine
• Laura Gorsky
• Bob Grundstein
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Jeanne Kennedy, JB Kennedy Associates, Mother of the Blogger
• Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
• Aileen Lachs, Mickenburg, Dunn, Lachs & Smith
• Pam Loginsky, Washington Association of Prosecuting Attorneys
• Lon McClintock, McClintock Law Offices
• Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
• Hal Miller, First American
• Herb Ogden, Ogden Law Offices
• Thomas Wilkinson, Jr., Cozen O’Connor
• Peter Young, General Counsel, Vermont Rail System

Answers

Question 1

How long must a lawyer keep records of funds that belonged to clients or third persons and that the lawyer held in connection with a representation?

• A.   6 years from the termination of the representation.  V.R.Pr.C. 1.15(a)(1)
• B.   The rules are silent on this issue.

Question 2

The following are exceptions to a particular rule.

• to establish a claim or defense in a controversy between the lawyer and client;
• to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved; or,
• to respond to allegations in any proceeding concerning the lawyer’s representation of the client.

Generally, what does the rule prohibit?

Disclosing information relating to the representation of a client.  The exceptions listed appear in Rule 1.6(c)(3) and, collectively, are often referre to as “the self-defense exception.” 

Question 3

Lawyer represents Client.   Lawyer calls Witness to testify.   Witness completed his testimony and the court recessed for the day.  Preparing for the next day of trial, Lawyer comes to realize that Witness offered material evidence that was false.

Which is most accurate?

• A.   Lawyer must take reasonable remedial measures.  V.R.Pr.C. 3.3(a)(3)
• B.   Lawyer need not correct the record since it was Witness and not Client.
• C.   Lawyer’s duties are different depending on whether the case is criminal or civil.
• D.  Lawyer must withdraw.

Comments 10 and 11 are instructive.

Question 4

Lawyer called me with an inquiry.  I listened, then said, “it’s okay as long as it does not imply a connection with a government agency or public or charitable legal services organization and is not otherwise false or misleading.”

What did Lawyer call to discuss?

• A.    Using a trade name as a firm name.  V.R.Pr.C. 7.5(a)
• B.    Organizing a pro bono clinic staffed by volunteer lawyers.
• C.    Using an undercover investigator.
• D.   Conflicts of interest that arise when moving to & from government practice.

Question 5

As readers know, I’m a huge proponent of attorney well-being and finding interests outside the law.  For me, I love running.

Earlier this week, an assistant public defender had to undergo emergency surgery after suffering a serious injury while taking a selfie as he participated in a famous “running” event.  Here’s what one of his co-workers said to the press:

• “As an office we encourage our employees to pursue outside interests and explore their passions.  For many it’s traveling, and we think such pursuits are critical to the general wellness of our entire . We are relieved the incident was not more serious and we are looking forward to [the lawyer’s] return.”

Name the “running” event that the lawyer was participating in when he was injured.

The Running of the Bulls, which occurs on the final day of Pamplona’s San Fermin Festival. I blogged about the incident here.  The clip from The Breakfast Club summarizes my feelings on running in the event.

Professor Alberto Bernabe, a regular member of the Honor Roll, has actually attended the event. He sent me this picture of the ring.

 

Five for Friday #170

Welcome to Friday!

I’m in a bit of a blogging hiatus, so I’m ditching the normal intro.  However, two matters deserve mention.

First, today is an important anniversary.  57 years ago tonight, a band played its first concert.  As noted by udiscovermusic, here’s how London’s Jazz News previewed the event:

• “Mick Jagger, R&B vocalist, is taking an R&B group into the Marquee tomorrow night, while Blues Incorporated do their Jazz Club gig. Called The Rollin’ Stones. The line-up is: Mick Jagger (vocals), Keith Richards & Elmo Lewis (guitars), Dick Taylor (bass), Ian Stewart (piano), & Mick Avory (drums).”

I mention this because no blog I’ve posted generated more controversy than this one in which I expressed my preference for the Stones over The Beatles.

Second, an even more important anniversary took place two days ago: the anniversary of my mom’s birth!  She’s a regular member of the Five for Friday Honor Roll.  My blog about her life is here.  Happy birthday Mom!

PS:  my mom’s sons will officially mark her birthday at brunch this Sunday morning.  Some might call us too lazy to have gotten our act together in time for her birthday.  However, others might long for friends & family who, like Patrick and I, stretch others’ birthdays into week-long celebrations.

Onto the quiz!

• 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

How long must a lawyer keep records of funds that belonged to clients or third persons and that the lawyer held in connection with a representation?

• A.   6 years from the termination of the representation.
• B.   The rules are silent on this issue.

Question 2

The following are exceptions to a particular rule.

• to establish a claim or defense in a controversy between the lawyer and client;
• to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved; or,
• to respond to allegations in any proceeding concerning the lawyer’s representation of the client.

Generally, what does the rule prohibit?

Question 3

Lawyer represents Client.   Lawyer calls Witness to testify.   Witness completed his testimony and the court recessed for the day.  Preparing for the next day of trial, Lawyer comes to realize that Witness offered material evidence that was false.

Which is most accurate?

• A.   Lawyer must take reasonable remedial measures.
• B.   Lawyer need not correct the record since it was Witness and not Client.
• C.   Lawyer’s duties are different depending on whether the case is criminal or civil.
• D.  Lawyer must withdraw.

Question 4

Lawyer called me with an inquiry.  I listened, then said, “it’s okay as long as it does not imply a connection with a government agency or public or charitable legal services organization and is not otherwise false or misleading.”

What did Lawyer call to discuss?

• A.    Using a trade name as a firm name.
• B.    Organizing a pro bono clinic staffed by volunteer lawyers.
• C.    Using an undercover investigator.
• D.   Conflicts of interest that arise when moving to & from government practice.

Question 5

As readers know, I’m a huge proponent of attorney well-being and finding interests outside the law.  For me, I love running.

Earlier this week, an assistant public defender had to undergo emergency surgery after suffering a serious injury while taking a selfie as he participated in a famous “running” event.  Here’s what one of his co-workers said to the press:

• “As an office we encourage our employees to pursue outside interests and explore their passions.  For many it’s traveling, and we think such pursuits are critical to the general wellness of our entire . We are relieved the incident was not more serious and we are looking forward to [the lawyer’s] return.”

Name the “running” event that the lawyer was participating in when he was injured.

 

 

Monday Morning Answers

Happy fiscal new year!

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

Honor Roll

• Karen Allen, Karen Allen Law
• Matt Anderson, Pratt Vreeland Kennelly Martin & White
• Penny Benelli, Dakin & Benelli
• Merrill Bent, Woolmington, Campbell, Bent & Stasny
• Honorable John M. Conroy, United States Magistrate Judge, District of Vermont
• Andrew Delaney, Martin & Delaney Law Group
• Bob Grundstein, Esq.
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Pam Loginsky, Washington Association of Prosecuting Attorneys
• Deb Kirchwey, Esq.
• Aileen Lachs, Mickenburg, Dunn, Lachs & Smith
• Thomas Kester, Assistant General Counsel. Blue Cross & Blue Shield of Vermont
• Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
• Jeff Messina, Bergeron Paradis Fitzpatrick
• Hal Miller, First American
• Caryn Waxman, Barber & Waxman
• Thomas Wilkinson, Jr., Cozen O’Connor
• Zachary York, Vermont Superior Court, Chittenden Civil 

Answers

Question 1

The rule prohibits communicating with a represented __________:

• A.   Party
• B.   Person

This is Rule 4.2.  It applies to “persons and matters,” which is broader than “parties and cases.”

Question 2

True or false?

A lawyer may not accept representation in a matter that involves an area of law in which the lawyer does not possess the requisite level of competence to provide competent representation to the client.

False.  Comments [2] & [4] to Rule 1.1

Question 3

The rules rarely reference specific practice areas.   However, there’s one rule that specifically references both criminal cases & divorces.  It’s the rule on:

• A.   Contingent fees.  Rule 1.5(d)
• B.   Flat fees
• C.   Conflicts with former clients
• D.   Prospective clients

Question 4

Lawyer represents Client in an appeal.   Opposing Counsel filed a brief.  The brief fails to cite to a case in the controlling jurisdiction that Lawyer knows to be directly adverse to Client’s position.  By rule, Lawyer’s reply brief:

• A.   must not disclose the case
• B.   may disclose the case
• C.   may disclose the case if Client consents
• D.   must disclose the case. 

This is Rule 3.3(a)(2).  Failure to disclose violates the duty of candor to the tribunal.

Question 5

The Supreme Court released several newsorthy decisions this week.

48 years ago today, the Court issued an opinion that garnered headlines nationwide.  The opinion overturned the conviction of a famous athlete. The athlete had refused to report for induction to the military after his application for conscientious objector status had been denied.

A unanimous Court (8-0, with Justice Marshall recusing himself) concluded that the athlete’s beliefs were “surely no less religiously based” than those that had been approved in granting other applications for conscientious objector status.

Name the athlete.

Cassius Clay (Muhammad Ali).  The case was Clay v. United States.  The National Constiutiion Center has the story here.

Five for Friday #169

What a beautiful Friday!

It’s days like this that I live for.  And days like this that make me shudder to think of November, December, January, February, March and each of the past two Aprils.  But thinking is overrated.  So, instead, I’m going to enjoy today for what it is.  And given a fantastic confluence of events, today is shaping up to be a good day indeed.

Last summer, my brother and I took full advantage of the fact that the Men’s World Cup was held in Russia.  The time difference made for ideal start times in the eastern U.S.

This summer, the gift continues to give, with the Women’s World Cup taking place in France. An added bonus?  Unlike the men, the US Women not only qualfied for the tournament, they have a chance to win!  Today’s quarterfinal against France is on our agenda.

Also, our cousins Sean and Richie are in town. Their mom is my dad’s sister.  Sean is a fighter pilot based in California.  Richie lives in Plattsburgh.  As is common in Irish families like ours, I’m not exactly sure what Richie does. Which makes us even, because I’m pretty sure he thinks I’m a teacher.  Aunt Kate would be so proud of the interest her grandnephews take in each other’s lives!

Anyhow, another of our traits is a conviction in the superstitious powers of sayings. Thus, fully aware that familiarity breeds contempt, Sean, Richie and I limit our in-person interactions to the Friday afternoon in late June that falls during Sean’s annual trek home.  Today, we’ll meet at the same bar we always do and pretend to catch up.  Then, we’ll tell the same stories we always re-tell, only this year we’ll laugh even harder than  in previous years, as if it’s the first time any of us has heard the story.

In a sense, each telling will be “new.”  You see, it’s not uncommon for our old stories to acquire new details with each passing year.  Details that the others know full well never happened, but that we leave unchallenged given how much better their inclusion makes the story.  We’ve long lost track of the line that demarcates our actual childhood activities from the heroic & glamourous adventures our adult minds are certain we lived.

But you know what?  That’s ok.

It’s only a few hours a year, but I love seeing my cousins.  Not just Sean and Richie, but all my cousins on both sides of the family.

There’s an old Irish blessing:

To cousins.  May even one of yours be as good as each of mine.

Onto the quiz!

Rules

• None.  Open book, open search engine, text/phone/email-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
• Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

The rule prohibits communicating with a represented __________:

• A.   Party
• B.   Person

Question 2

True or false?

A lawyer may not accept representation in a matter that involves an area of law in which the lawyer does not possess the requisite level of competence to provide competent representation to the client.

Question 3

The rules rarely reference specific practice areas.   However, there’s one rule that specifically references both criminal cases & divorces.  It’s the rule on:

• A.   Contingent fees
• B.   Flat fees
• C.   Conflicts with former clients
• D.   Prospective clients

Question 4

Lawyer represents Client in an appeal.   Opposing Counsel filed a brief.  The brief fails to cite to a case in the controlling jurisdiction that Lawyer knows to be directly adverse to Client’s position.  By rule, Lawyer’s reply brief:

• A.   must not disclose the case
• B.   may disclose the case
• C.   may disclose the case if Client consents
• D.   must disclose the case

Question 5

The Supreme Court released several newsorthy decisions this week.

48 years ago today, the Court issued an opinion that garnered headlines nationwide.  The opinion overturned the conviction of a famous athlete. The athlete had refused to report for induction to the military after his application for conscientious objector status had been denied.

A unanimous Court (8-0, with Justice Marshall recusing himself) concluded that the athlete’s beliefs were “surely no less religiously based” than those that had been approved in granting other applications for conscientious objector status.

Name the athlete.

Monday Morning Answers #168

Happy Monday!

Friday’s questions are here. The answers follow today’s Honor Roll. The race went well, and I recommend a day or two in Portland.

Honor Roll

• Karen Allen
• Matthew Anderson, Pratt Vreeland Kennelly & White
• Evan Barquist, Montroll, Backus & Oettinger
• Penny Benelli, Dakin & Benelli
• Alberto Bernabe, Professor, John Marshall Law School
• Jennifer Duxbury, Pratt Vreeland Kennelly Martin & White
• Erin Gilmore, Ryan Smith & Carbine
• Bob Grundstein
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Thomas Kester, Assistant General Counsel. Blue Cross & Blue Shield of Vermont
• Elizabeth Kruska, President-Elect (soon), Vermont Bar Association
• Tom Little, Little & Cicchetti
• Pam Marsh, Marsh & Wagner
• Hal Miller, First American
• Lon McClintock, McClintock Law Offices
• Thomas Wilkinson, Jr., Cozen O’Connor
• Zachary York, Vermont Superior Court, Chittenden Civil 

Answers

Question 1

What is the quoted language more commonly known as?

• “a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibility to another client, a former client or a third person . . .”

A concurrenct conflict of interest . See, Rule 1.7(a)(2).

Question 2

Someone Other Than Client (“SOTC”) is paying Lawyer to represent Client. Which is most accurate?

With respect to information related to the representation of Client, Lawyer

• A.  may disclose to SOTC without Client’s consent;
• B.  must disclose to SOTC even over Client’s objection;
• C.  may not disclose to SOTC without Client’s consent or unless disclosure is otherwise authorized by the rules.  Rule 1.8(f)
• D.  None of the above.

Question 3

Confidences. Competence.  Conflicts.  Candor.  Communication. Civility.

There’s another word that begins with “C” that is a serious violation of the rules. However, the word doesn’t appear in any of the rules, notable in its absence from the trust accounting rules and the rule on safekeeping client property.

What’s the word?

I was looking for “Commingling.”  Several readers ubmitted another answer that I accepted: “Conversion.”

Question 4

Former Client sued Lawyer for malpractice.  Lawyer had represented Former Client in a divorce.  Attorney represented Former Client in the malpractice action.

Attorney proposed a settlement.  Lawyer accepted. The settlement included a provision that Lawyer will not represent clients in divorces for 5 years.

Did either Attorney or Lawyer violate the rules?

• A.  Yes, Lawyer’s malpractice in the divorce is a per se violation.
• B.   Yes, Attorney violated the rules by making the offer.
• C.   Yes, Attorney and Lawyer violated the rules by making and accepting the offer.  Rule 5.6.  This isn’t a common issue, but it came up in an inquiry I received last week.
• D.  A and B.

Question 5

Increase Mather was born on this day in 1639. Apropos of my intro, many of Mather’s beliefs wouldn’t be acceptable in today’s society.

Yet, one likely stands the test of time.  In his work “Cases of Conscience,” Mather referred to the so-called “Blackstone Ratio,” the idea that it’s better that 10 guilty persons go free than 1 innocent person be punished.

What notorious legal event prompted Mather to write Cases of Conscience?

The Salem Witch Trials

 

Five for Friday #168

Welcome to #168!

Before we get started, here’s something regular readers will understand: I got the bins right this week! And I didn’t even have to check my new calendar.

So . . .

. . . on New Year’s Day I boldly announced on Facebook and Instagram that, in 2019, I’d run at least 10 half marathons in 10 different states or provinces.  New Year’s Eve has long tended to leave me confusing “bad idea” with “bold plan.”  A few things I forgot to factor into the equation? Travel and lodging.

Fortunately, my dad is vacationing in Boothbay Harbor this week.  It’s fortunate because  tomorrow is the Old Port Half in Portland.  So, as soon as I post today’s quiz, I’m heading to Maine.  Not so much to visit my dad – no offense dad – but to take advantage of the free (to me) room, run tomorrow’s half marathon, and tick off another state on my quest for 10.

Son of the Year!

Anyhow, in addition to being ready to hit the road, I’m fresh out of ideas.  So, I almost posted today’s quiz sans this intro. But, in a burst of effort meant to give the people what they likely scroll right past, I googled “168 legal ethics.”  What I found nearly made my spit out my coffee in laughter.

I found this.  It’s an advisory ethics opinion that was issued in Texas in 1958.  The summary:

“It is improper for an attorney to send Christmas cards to his clients which indicate that he is an attorney at law either on the cards or their envelopes.”

And, the opinion itself:

• “The sending of Christmas cards with the language ‘Attorney at Law’ and ‘Attorney at Law, 1137 Big Building, City, Texas’ or of a card without such language in an envelope which shows a return address reading. ‘John Doe, Attorney at Law, 1137 Big Building, City, Texas’ violates Canon 24 of the Canons of Ethics of the State Bar. If the Christmas cards and the envelope merely stated the name of the sender without any reference to his being an attorney, the sending thereof would not violate the Canons of Ethics of the State Bar. (9-0).'”

Not a single dissent!  I’ll give them this: at least their opinions were brief.

The brevity, however, leaves me unclear as to the reasoning.  I assume it wasn’t necessarily “Christmas cards,” but any card, whether birthday, graduation, or get well.  Also, I’m  aware that, back then, advertising was frowned upon.  We’re a noble profession!  But cards to your own clients????  Come on!  And, it’d be okay if you remove any reference to being an attorney???  Huh?

It makes me laugh.  Yet, at the same time, it makes me wonder.

In legal ethics, what are we requiring, prohibiting, or allowing that, years from now, will make the profession scratch its collective head?  Something.  Because that’s how life works: we look back and wonder “what the hell were they thinking?”  Often, we’re right to wonder.

I used to tell my players that once we stop looking for ways to get better, we stop getting better.  Both as players and as a team.

It’s the same with legal ethics.  Actually, it’s the same with life.

It’s likely that every single one of us is doing something today that, years from now, we’ll wonder why we ever did it this way.  Whether as lawyers, judges, bar associations or courts.  Whether as friends or family members. Whether in athletics, law, or interpersonal relationships.

Self-reflection and introspection are personal and professional responsibilities.  Let’s resolve always to work to improve.

Oh – you lawyers & firms who send me holiday cards? Keep it up! They brighten up an otherwise drab office.

Onto the quiz!

Rules

• None.  Open book, open search engine, text/phone/email-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
• Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

What is the quoted language more commonly known as?

• “a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibility to another client, a former client or a third person . . .”

Question 2

Someone Other Than Client (“SOTC”) is paying Lawyer to represent Client. Which is most accurate?

With respect to information related to the representation of Client, Lawyer

• A.  may disclose to SOTC without Client’s consent;
• B.  must disclose to SOTC even over Client’s objection;
• C.  may not disclose to SOTC without Client’s consent or unless disclosure is otherwise authorized by the rules.
• D.  None of the above.

Question 3

Confidences. Competence.  Conflicts.  Candor.  Communication. Civility.

There’s another word that begins with “C” that is a serious violation of the rules. However, the word doesn’t appear in any of the rules, notable in its absence from the trust accounting rules and the rule on safekeeping client property.

What’s the word?

Question 4

Former Client sued Lawyer for malpractice.  Lawyer had represented Former Client in a divorce.  Attorney represented Former Client in the malpractice action.

Attorney proposed a settlement.  Lawyer accepted. The settlement included a provision that Lawyer will not represent clients in divorces for 5 years.

Did either Attorney or Lawyer violate the rules?

• A.  Yes, Lawyer’s malpractice in the divorce is a per se violation.
• B.   Yes, Attorney violated the rules by making the offer.
• C.   Yes, Attorney and Lawyer violated the rules by making and accepting the offer.
• D.  A and B.

Question 5

Increase Mather was born on this day in 1639. Apropos of my intro, many of Mather’s beliefs wouldn’t be acceptable in today’s society.

Yet, one likely stands the test of time.  In his work “Cases of Conscience,” Mather referred to the so-called “Blackstone Ratio,” the idea that it’s better that 10 guilty persons go free than 1 innocent person be punished.

What notorious legal event prompted Mather to write Cases of Conscience?

 

Monday Morning Answers #167

Hope you enjoyed the weekend!

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

Honor Roll

• Matt Anderson, Pratt Vreeland Kennelly Martin & White
• Evan Barquist, Montroll Backus & Oettinger
• Penny Benelli, Dakin & Benelli
• Alberto Bernabe, Professor, John Marshall Law School
• Bob Grundstein, Esq.
• Thomas Kester, Assistant General Counsel. Blue Cross & Blue Shield of Vermont
• Jim Runcie, Ouimette & Runcie
• Ian Sullivan, Chief Deputy State’s Attorney, Rutland County
• Zachary York, Vermont Superior Court, Chittenden Civil 

Answers

Question 1

There’s only one rule that specifically mentions both judges and jurors.

What does the rule prohibit?

Rule 3.5 prohibits ex parte communications with those judges & jurors.

Question 2

There’s a rule that prohibits a lawyer from charging an unreasonable fee.

True or false?

By rule, if the client agrees to and pays a fee, the fee is presumed reasonable.

False. There is no such presumption in Rule 1.5. Also,   See, In re Sinnott, (“Respondent seeks to justify this fee on the theory that it was based on a valid contract that [the client] freely and knowingly signed.   This argument demonstrates respondent’s failure to comprehend the effect of Vermont Rules of Professional Conduct 1.5(a);  lawyers, unlike some other service professionals, cannot charge unreasonable fees even if they are able to find clients who will pay whatever a lawyer’s contract demands,”)

Question 3

Lawyer represented Client.  Once the representation ended, Client gave Lawyer a gift.  Which is most accurate?

• A.  Lawyer must not accept the gift.
• B.  Lawyer may accept the gift, but only if Lawyer handled the matter pro bono.
• C.  Lawyer may accept the gift, especially if it’s a simple gift such as a holiday present or token of the client’s appreciation.  Rule 1.8, Comment [6].
• D.  Mike, objection.  The premise of this question is pure fantasy.

Question 4

Attorney called me with an inquiry. I listened, then said, “it means:

• ‘isolation of a lawyer from any participation in a matter through timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these rules or other law.’ “

Given my response, what general issue/topic did Attorney likely call to discuss?

Screening a lawyer from participation in a matter.  See, Rule 1.0(k).

Question 5

Speaking of my presentation to the prosecutors, one of the hottest new streaming shows culminates in the criminal trial of Anatoly Dyatlov, Viktor Bryukhanov, and Nikolai Fomin. In real life, the trial took place in 1987.

Where did the defendants work?

The Vladimir I. Lenin Nuclear Power Station – aka “Chernobyl.”  

I recommend the HBO miniseries.

Five for Friday #167

Happy Flag Day!

Today’s post relates to Wednesday’s, when I blogged on how this Twitter thread made me realize that I don’t want my obituary to read “he died doing legal ethics.”  So, I grabbed a beer, walked over to my mom’s, and we visited on her deck.

I’m not a planner.  Never have been, never will be.  On the Myers-Briggs, “P” is my strongest score.  Also, my attention to detail isn’t always the best.  I’m not saying these traits are good or bad.  They just are. They’re also traits that, I think, drive people nuts, mainly my mother and my brother.

Flashback to Tuesday:  around 3:00 PM, I was ready to head to Woodstock to speak at the State’s Attorneys Training.  Knowing that my seminar wouldn’t end until 7:30, I intended to, and did, spend the night.  Which meant that I had a chore to do before I left.

I live in the same sub-division as my mom.  Wednesday is trash & recycling day.  Trash bins to the curb every Wednesday, joined by the recycling bins every other.

Most people put their bin(s) out on Tuesday night.  Not me.  A natural procrastinator, I wait until Wednesday morning.  A benefit of my procrastination? Given my lack of attention to detail, I never remember whether it’s “Trash Bin Only” week, or, if both bins should be out.  I’ve freed my mind of such clutter by waiting until the last minute and copying whatever my neighbors have done.

As you might have guessed, this left me in a pickle when I left for Woodstock on Tuesday afternoon.  Knowing I wouldn’t be home until late Wednesday, I had to get my bins out without any cues from my neighbors.  My natural instinct was to leave them inside and figure it out next week.  Then I remembered how old I am.  So, I confidently rolled out both, dutifully sandwiching between them the crushed cardboard box that once contained the vacuum cleaner I ordered last week.  Off I drove, congratulating myself on the burst of industriousness that marks an adult.

Returning home Wednesday afternoon, the first thing I noticed was that the vacuum cleaner box was still next to the recycle bin.  Further investigation revealed that while the trash bin had been emptied, the recycling bin had not.  Scanning the neighborhood, I noticed that all the other recycle bins remained curbside, as full as they had been when put there. I concluded that the recycling workers had either changed the schedule or gone on strike.  Then, I rolled the bins – one empty, one full – back to the garage, posted Wednesday’s blog, and walked to my mom’s.

There’s a spot in my mom’s kitchen that’s reserved for stuff she thinks I might need.  Could be a book, or a Runners World article, or who knows what.  Whatever the item, “Michael” is always written on the item, or on a post-it note stuck to the item.  This isn’t as much for me as it is to put Patrick on notice that the item is NOT for him.

Important note: my mom is both a planner and someone who pays attention to detail.  Trust me.

Wednesday night, I walked into her kitchen to find this:

I don’t need a calendar and told her so.  Her reaction surprised me.  You see, I thought it was an extra she was trying to get rid of.  I was wrong.

She looked at me and said “yes you do! Today was trash only!”

I resorted to one of my other natural instincts: lying to my mother.  I said something like “oh, I knew that, but everyone else had both out, so I put both out too.”  That didn’t make it much better.  Clearly, she was as disappointed as she was befuddled that her own issue couldn’t remember which Wednesday was which.

Then she opened the calendar.

The circles indicate the Wednesdays when both bins go out.  Now I know.

But then it struck me: but for my mom, everyone else had put both bins out too!  Surely not everyone got it wrong.  I think it’s my fault.  I think someone saw that I’d put both out and decided to do the same. Groupthink took hold, with nobody but my mom willing not to follow the crowd.  I’d even guess that many who followed my lead did so after muttering “i’m pretty sure this isn’t recycling week.”

And that reminded me of the tweet that inspired Wednesday’s post.  Maybe that lawyer who was working from his literal death bed didn’t know any better.  Maybe he was only doing what he’d seen others do.  Maybe he thought it was what lawyers do.

Don’t be like that lawyer.  Just because the profession has always done something one way doesn’t mean it’s right. Indeed, the staggering rates at which behavioral health issues afflict lawyers show that we are doing it wrong.  We need to pay attention to what we know isn’t the right way to do things.

Instead, be like my mom.  When you know what’s right, trust yourself and do it.  Put one bin out.  Even if it means being different from everyone else. After all, for all you know, others might only be mindlessly copying someone who, because he doesn’t pay attention, had no idea what he was doing.

Pay attention.  Remember the bins.

Onto the quiz!

Rules

• None.  Open book, open search engine, text/phone/email-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
• Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

There’s only one rule that specifically mentions both judges and jurors.

What does the rule prohibit?

Question 2

There’s a rule that prohibits a lawyer from charging an unreasonable fee.

True or false?

By rule, if the client agrees to and pays a fee, the fee is presumed reasonable.

Question 3

Lawyer represented Client.  Once the representation ended, Client gave Lawyer a gift.  Which is most accurate?

• A.  Lawyer must not accept the gift.
• B.  Lawyer may accept the gift, but only if Lawyer handled the matter pro bono.
• C.  Lawyer may accept the gift, especially if it’s a simple gift such as a holiday present or token of the client’s appreciation.
• D.  Mike, objection.  The premise of this question is pure fantasy.

Question 4

Attorney called me with an inquiry. I listened, then said, “it means:

• ‘isolation of a lawyer from any participation in a matter through timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these rules or other law.’ “

Given my response, what general issue/topic did Attorney likely call to discuss?

Question 5

Speaking of my presentation to the prosecutors, one of the hottest new streaming shows culminates in the criminal trial of Anatoly Dyatlov, Viktor Bryukhanov, and Nikolai Fomin. In real life, the trial took place in 1987.

Where did the defendants work?

 

 

 

 

 

 

 

 

 

 

Monday Morning Answers #166

Happy Monday!

Friday’s questions and the story of the life lesson that Mr. Selby taught me in 6th grade are here.  The answers follow today’s Honor Roll.

Honor Roll

• Matt Anderson, Pratt Vreeland Kennelly Martin & White
• Penny Benelli, Dakin & Benelli
• Andrew Delaney, Martin & Delaney Law Group
• Erin Gilmore, Ryan Smith & Carbine
• Bob Grundstein, Esq.
• Mark Heyman, General Counsel, Logic Supply
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Jeanne Kennedy, JB Kennedy Associates, Blogger’s Mom
• Thomas Kester, Assistant General Counsel. Blue Cross & Blue Shield of Vermont
• Lon McClintock, McClintock Law Offices
• Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
• Hal Miller, First American
• Allison Bates Wannop, Special Counsel, Vermont Department of Public Service
• WILO
  • Joslyn Wilschek
  • Anthony Iarrapino
• Thomas Wilkinson, Jr., Cozen O’Connor
• Zachary York, Vermont Superior Court, Chittenden Civil 

Answers

Question 1

True of false.

For the purposes of the rule that prohibits conduct that is degrading or disruptive to a tribunal, a deposition is not a tribunal.

FALSE.  V.R.Pr.C. 3.5, Comment [5} (“The duty to refrain from degrading or disruptive conduct applies to any proceeding of a tribunal,  including a deposition.”)  See also, Rule 1.0(m).

Question 2

The following are exceptions to the general prohibition against what?

• to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and client;
• to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved;
• to respond to allegations in any proceeding concerning the lawyer’s representation of the client.

Disclosing information relating to the representation of a client. V.R.Pr.C. 1.6(c)(3).

Question 3

Only 1 is correct.  Which?

By rule, a lawyer shall:

• A.   maintain copies of advertisements for 2 years;
• B.   maintain a copy of the client’s file for 7 years following delivery thereof;
• C.   maintain trust account records for 6 years following the termination of the representation.  V.R.Pr.C. 1.15(a)(1).
• D.    Trick question.  Each statement is correct.

Question 4

There’s a rule that prohibits a lawyer from assisting a client in conduct that the lawyer knows is criminal or fraudulent. A few years ago, the Supreme Court promulgated a Comment to the rule to make it clear that a lawyer does not violate the rule by advising clients on matters that are legal under a set of Vermont’s state laws that apply to a specific product/industry.

What is the product/industry?

Cannabis.  See, V.R.Pr.C. 1.2, Comment [14].

Question 5

Robert H. Jackson was an associate justice on the United States Supreme Court from 1941 to 1954.  Prior to his appoint, he served both as United States Solicitor General and United States Attorney General.  He is the only person ever to have held all 3 offices.

In 1945, Jackson took a leave from the US Supreme Court.  He did so after accepting an appointment from President Truman to serve as a special prosecutor.

Identify the proceeding at which Jackson served as a special prosecutor while on leave from the United States Supreme Court.

The  Nuremberg Trials.

Note: Jackson earned wide praise for his opening statement and closing argument.

Opening Statement – Text

Opening Statement – Video

Closing argument – Text

Closing argument – Video

 

Five for Friday #166

Last weekend, I briefly thought that the 166th #fiveforfriday column would fall on 6/6.  It didn’t, but close enough.

D-Day always reminds me of Cleland Selby.  Mr. Selby was my 6th grade Language Arts teacher.  That year, I wrote a paper about the Allied invasion of Normandy.

Until this morning – more on that later – I didn’t remember much about the paper other than the topic. However, I’ve always remembered how much Mr. Selby helped me.

I struggled with the assignment.  I did so much research that I was overloaded with information. Overwhelmed and unable to narrow my focus, I went to Mr. Selby for help.  His response made a difference in my life.

Mr. Selby gave me a pile of 3 x 5 index cards.  He told me to write one – and only one – fact or thought about D-Day on each card.  I did.

Next, he told me to arrange the cards in an order that made sense.  I did.

Then, Mr. Selby told me that was my paper.  All I had to do was write the thoughts in the order I’d arranged them.  He was right. More importantly, his advice turned into a life lesson.

I teach a lot of CLEs during June.  I’ve already done two this week, have two more later today, and four more next week.  Different presentations at each, 12 hours total.  Last week and early this week, I felt overwhelmed trying to prepare.  Then, I remembered Mr. Selby.

I opened a power point and, on the first slide, I typed one thing I wanted to say at the first seminar.  Next slide, another thing.  One slide, one thought at a time.  My focus shifted from anxiety about the amount of work – “I’ll never get this done!” “too many presentations!” They’re gonna be terrible!” – to the work itself.  Abiding by Mr. Selby’s advice to move one thought at a time, stress melted, focus restored, and the work got done.

And isn’t that all we can do whenever overwhelmed or facing a challenge?  Deep breath, first things first, one thing at a time.

Whatever is overwhelming or challenging you today, don’t get lost in how daunting the effort will be.  Rather, whatever your version of an index card, note one thing that you can do.  Then, do it.  Even one step will help. Keep taking steps.

I have no idea where Mr. Selby is today, or if he’s even alive.  No matter, thank you Mr. Selby! The paper you helped me to organize doesn’t matter much.  But, the larger lesson you instilled in the process made a big difference in my life.

Now, before I get to the quiz, this morning, I dug through one of the many boxes of stuff that my mom saved from when we were young.  I kid you not, I found a folder of 6th grade schoolwork, including the D-Day paper!

I had it my head that I wrote about Eisenhower and his brilliant strategy.  Nope. I wrote it from the perspective of the German high command’s belief that the invasion would come at Calais.

Here’s the cover:

Look at the all the mark-ups, Mr. Selby worked hard!

And look what I gave him in return when he asked me to expand upon my conclusion:

Also, not sure why I went to law school with such mad skills in math & science:

My social studies project on the Maritime Provinces reveals less skill at map-making.

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

True of false.

For the purposes of the rule that prohibits conduct that is degrading or disruptive to a tribunal, a deposition is not a tribunal.

Question 2

The following are exceptions to the general prohibition against what?

• to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and client;
• to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved;
• to respond to allegations in any proceeding concerning the lawyer’s representation of the client.

Question 3

Only 1 is correct.  Which?

By rule, a lawyer shall:

• A.   maintain copies of advertisements for 2 years;
• B.   maintain a copy of the client’s file for 7 years following delivery thereof;
• C.   maintain trust account records for 6 years following the termination of the representation.
• D.    Trick question.  Each statement is correct.

Question 4

There’s a rule that prohibits a lawyer from assisting a client in conduct that the lawyer knows is criminal or fraudulent. A few years ago, the Supreme Court promulgated a Comment to the rule to make it clear that a lawyer does not violate the rule by advising clients on matters that are legal under a set of Vermont’s state laws that apply to a specific product/industry.

What is the product/industry?

Question 5

Robert H. Jackson was an associate justice on the United States Supreme Court from 1941 to 1954.  Prior to his appoint, he served both as United States Solicitor General and United States Attorney General.  He is the only person ever to have held all 3 offices.

In 1945, Jackson took a leave from the US Supreme Court.  He did so after accepting an appointment from President Truman to serve as a special prosecutor.

Identify the proceeding at which Jackson served as a special prosecutor while on leave from the United States Supreme Court.