Monday Morning Answers – #77

As June’s final week dawns, we welcome two first-timers to the #fiveforfriday Honor Roll.  Congrats (and welcome) to Lindsay Cabreros and Mike Donofrio.  Bonus points to Mike for slipping in a Here Come The Warm Jets reference in his response to Question 2. And special recognition to Nicole Killoran for being the only entrant to comment on the lyrical reference to “Psycho Killer” by the Talking Heads.  

Friday’s questions are here.  Spoiler alert: 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
• Lindsay Cabreros, Graduate Intern, First American
• Beth DeBernardi, ALJ, Vermont Department of Labor
• Andrew Delaney, Martin & Associates
• Mike Donofrio, Stris & Maher
• Robert Grundstein
• Anthony Iarrapino
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Patrick Kennedy, First Brother, Dealer.Com
• Nicole Killoran, Vermont Law School, Professor, JD Externship Program
• Ray Massucco, Massucco Law Offices
• Hal Miller, First American, Oceanside Division
• Herb Ogden, Law Office of Herb Ogden

Answers

Question 1

Two weeks ago, Andrew Manitsky, Tad Powers, and I presented a CLE that included a discussion of the ethics of puffing.  What was the topic of the CLE?

• A.   Candor in Negotiations.  See, Puffing: The Ethics of Negotiations
• B.   Candor in Opening & Closing Statements
• C.   Lawyer Advertising & Social Media Marketing
• D.   Advising Clients on Vermont’s (then proposed) Marijuana Laws

Question 2

In the matter of Byrne v. Eno, Attorney represents Byrne.  Lawyer represents Eno.

Eno e-mails a settlement offer directly to Attorney and does not copy Lawyer.

If Attorney calls me with an inquiry, it’s most likely that I’ll respond:

• A.   You may reply directly to Eno on the substance of the offer.
• B.   You may reply directly to Eno, but should limit the response to asking whether Eno is still represented by Lawyer
• C.   Go through Lawyer.  The so-call “no-contact” rule still applies even though Eno initiated the communication.  See, Rule 4.2, Comment [3]
• D.   “A,” but the comment suggests “B” is a better approach

Question 3

The phrase “single source” appears in the rules.  Last week, I spent several minutes discussing “single source” and its meaning at a CLE.

What was the topic of the CLE?

Trust Account Management.  See, Rule 1.15A(a)(4).  See also, PRB Decision 175, (Attorney Admonished for failing to have single source identifying all trust accounts)

Question 4

I get a lot of calls & e-mails on this topic.

Lawyer called me with an inquiry.  I listened, then told the Lawyer that the 50 states fall into two camps:  “end-product” states, and “work-product” states.  I added that, in my view, we’re an “end-product” state.

What did Lawyer call to discuss? Hint – the general topic is something that is required by the Rules of Professional Conduct and that 98% of you have had to deal with, no matter your practice area.

File Delivery Upon the Termination of a Representation.  For general guidance, see ABA Formal Opinion 471

Question 5

Rule 1.6(b) sets out the situations in which a lawyer must disclose a client’s intent to commit a crime.

More specifically, Rule 1.6(b)(1) requires a lawyer to reveal information related to the representation to the extent necessary to prevent the client or another person from committing a criminal act that the lawyer believes is reasonably likely to result in the death of a person other than the person committing the act.

If the rule had existed back then, it seems clear that Attorney Tom Hagen violated it as he watched Tessio driven away.

Name the movie.

Robert Duvall played Attorney Tom Hagen.  Abe Vigoda played Tessio.   Hagen failed to act to prevent Fish from sleeping with the fishes in The Godfather.

 

 

 

Five for Friday #77

Welcome to #fiveforfriday #77!

Speaking of 77, I’m a fair quiz master, not some sort of psycho killer.  Thus, this quiz isn’t one from which it’s fa fa fa far better to run run run run run away.  Give it a shot!

Rules

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

Question 1

Two weeks ago, Andrew Manitsky, Tad Powers, and I presented a CLE that included a discussion of the ethics of puffing.  What was the topic of the CLE?

• A.   Candor in Negotiations
• B.   Candor in Opening & Closing Statements
• C.   Lawyer Advertising & Social Media Marketing
• D.   Advising Clients on Vermont’s (then proposed) Marijuana Laws

Question 2

In the matter of Byrne v. Eno, Attorney represents Byrne.  Lawyer represents Eno.

Eno e-mails a settlement offer directly to Attorney and does not copy Lawyer.

If Attorney calls me with an inquiry, it’s most likely that I’ll respond:

• A.   You may reply directly to Eno on the substance of the offer.
• B.   You may reply directly to Eno, but should limit the response to asking whether Eno is still represented by Lawyer
• C.   Go through Lawyer.  The so-call “no-contact” rule still applies even though Eno initiated the communication.
• D.   “A,” but the comment suggests “B” is a better approach

Question 3

The phrase “single source” appears in the rules.  Last week, I spent several minutes discussing “single source” and its meaning at a CLE.

What was the topic of the CLE?

Question 4

I get a lot of calls & e-mails on this topic.

Lawyer called me with an inquiry.  I listened, then told the Lawyer that the 50 states fall into two camps:  “end-product” states, and “work-product” states.  I added that, in my view, we’re an “end-product” state.

What did Lawyer call to discuss? Hint – the general topic is something that is required by the Rules of Professional Conduct and that 98% of you have had to deal with, no matter your practice area.

Question 5

Rule 1.6(b) sets out the situations in which a lawyer must disclose a client’s intent to commit a crime.

More specifically, Rule 1.6(b)(1) requires a lawyer to reveal information related to the representation to the extent necessary to prevent the client or another person from committing a criminal act that the lawyer believes is reaonably likely to result in the death of a person other than the person committing the act.

If the rule had existed back then, it seems clear that Attorney Tom Hagen violated it as he watched Tessio driven away.

Name the movie.

 

 

Monday Morning Answers: #76

Delayed post this morning.  As a Celtics fan, I got caught up reading blogs trying to figure out if this weekend’s trade makes any sense.  I’m on board with Tatum at #3.  I’m luke warm on anything involving Jimmy Butler, and not at all interested in renting Paul George for a year.

Anyhow, I digress.  Friday’s questions are here.  Spoiler alert: the answers follow the honor roll.

Honor Roll

• Karen Allen, Esq.
• Matthew Anderson, Pratt Vreeland
• Penny Benelli, Dakin & Benelli
• Alberto Bernabe, Professor of Law, John Marshall Law School
• Beth DeBernardi, ALJ, Department of Labor
• Robert Grundstein
• Anthony Iarrapino, Esq.
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Patrick Kennedy
• Deb Kirchwey, Esq.
• Elizabeth Kruska, Esq.
• Jack McCullough, Director, Vermont Legal Aid Mental Health Law Project
• Hal Miller, First American

 

Answers

Question 1

Attorney represents an organization in a matter.  Opposing Counsel knows that Attorney represent the organization in the matter.  Without Attorney’s permission, Opposing Counsel discusses the matter with a former employee of the organization.  Which is most accurate?

• A.  Opposing Counsel violated the rules.
• B.  Opposing Counsel did not violate the rules.  Rule 4.2, Comment [7], (“Consent of the organization’s lawyer is not required for communication with a former constituent.”)
• C.  Attorney violated the rules.

Question 2

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

“has the clerk certified that the term of service is complete?”

What did Lawyer ask me if it would be okay to do?

Lawyer asked if it would be permissible to communicate with a juror.  See, Rule 3.5(b) & (c).

Question 3

Lawyer has actual knowledge that Client is going to commit a fraud.  The fraud is reasonably certain to result in substantial injury to the financial interests or property of another.  Which most accurate states Lawyer’s duty:

A.  Lawyer must disclose Client’s intent.

B.   Lawyer may disclose Clientt’s intent.

C.  Lawyer must disclose Cient’s intent if Client used Lawyer’s services in furtherance of the fraud.  Rule 1.6(b)(3).

D.  Lawyer must not disclose Client’s intent – disclosure is required only if a client’s crime or fraud will result in the  death of, or substantial physical harm to, someone other than the client.

Question 4

By rule, in contingent fee cases:

• A.    The fee must be calculated before expenses are deducted
• B.    The fee must be calculated after expenses are deducted
• C.    The rule is silent as to whether the fee is to be calculated before or after expenses are deducted
• D    The fee agreement must specify whether the fee will be calculated before or after expenses are deducted.  Rule 1.5(c).

Question 5

Barry Zuckerkorn is the Bluth family’s inept & incompetent lawyer on the Emmy Award winning show Arrested Development. Whatever his fee, it was probably unreasonable.

In one episode, Zuckerkorn literally jumped over a shark that was lying dead on a pier.  The scene was scripted in homage to a popular 1970’s-80’s TV show that starred the actor who plays Zuckerkorn.

• Name the actor and the 1970’s show in which he starred.

Henry Winkler.  Happy Days.  The hint: the origin of the phrase “jumped the shark” is the episode in which Fonzie jumped a shark on water skis .

 

Monday Morning Answers & Honor Roll

I guess it’s summer.

Friday’s questions are HERE.  The answers follow today’s Honor Roll. And, speaking of the Honor Roll, there’s a first-time entrant this week: Professor Alberto Bernabe from John Marshall Law School. Professor Bernabe has a great blog on legal ethics.  It’s HERE.

HONOR ROLL

• Matthew Anderson, Pratt Vreeland Kennelly Martin & White
• Alberto Bernabe, Professor of Law, John Marshall Law School in Chicago
• Beth DeBernardi, ALJ, Department of Labor
• Robert Grundstein
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Patrick Kennedy, First Brother, Dealer.Com
• Deb Kirchwey, The Law Offices of Deborah Kirchwey,
• Tom Little, VSAC
• Hal Miller, First American, Oceanside Division
• James Runcie, Runcie & Ouimette
• Allison Wannop, Law Clerk, Vermont Superior Court

Stats:

• Easiest:   Question 2
• Hardest:  Question 1

Question 1

The rules prohibit lawyers from asking clients to consent to conflicts that might arise in the future.

• A.    True
• B.     False.  See, Rule 1.7, Comment [22]. Conflict waivers require informed consent. It can be difficult to provide informed consent to waive a conflict that has yet to arise. Thus, per the Comment, “[t]he effectiveness of such waivers is generally determined by the extent to which the client understands the material risks that the waiver entails.”
• C.     True, but the rule only applies in criminal cases

Question 2

What do these have in common?

• Expenses of investigation;
• Expenses of medial examinations; and
• Costs of obtaining and presenting evidence

Costs and expenses of litigation that can be advanced.  See, Rule 1.8(e)(1).  I’ve previously blogged that amending this rule might help to increase access to legal services.

Question 3

Which is the most accurate answer?

An attorney shall not “prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless __________”

• A.    The attorney or recipient is related to the client.  Rule 1.8(c).
• B.     The client gives informed consent
• C.     The client gives informed consent, confirmed in writing

Question 4

Rule 1.18 relaxes a lawyer’s duty of loyalty to prospective clients who meet with, but do not retain, the lawyer.  There is another duty that Rule 1.18 does not relax.  That is, a duty that the lawyer owes to the prospective client even though the prospective client chose not retain the lawyer.

What is the duty?

The duty to maintain confidences.  See, Rule 1.18(b). More specifically, the duty not to use or reveal information shared in the consultation except as required or permitted by rules 1.6 and 1.9.

Question 5

Following up on last week’s controversial column, I know that a few of my readers prefer a particular band to both the Beatles and the Stones.

Imagine a lawyer who is on the road, and maybe on the run.  The lawyer says:

“Sitting and staring out the hotel window

Got a tip they’re gonna kick the door in again

I’d like to get some sleep before I travel

But if you gotta warrant I guess you’re gonna come in”

I’m not sure a lawyer satisfies the duty of competence by basing his or her understanding of criminal law/criminal procedure/constitutional law on the teachings of  …….. who?

The Grateful Dead.   Lyrics from the song Truckin’

As I mentioned Friday, I included this question for the several readers who responded to my Beatles v. Stones column by mentioning that they’re fans of the Dead.  I’m not against the Dead, but I never got into them. In fact, my favorite “version” of Truckin’ is the snippet of the song that Tesla mixed into Comin’ Atcha Live during the sneaky good Live at the Trocadero performance that was recorded & released as Five Man Accoustical Jam.

Five for Friday #75: Pudge Waves it Fair

Welcome to the 75th #fiveforfriday!

No matter how long I live, I’ll always associate the #75 with one thing.

My earliest sports memories are of the 1975 Red Sox.  My earliest specific recollection of a sporting event is of Game 3 of the ’75 ALCS vs Oakland.  My parents made me go to bed way before the game ended, but my Dad woke me up to watch the final out: a grounder to 2nd that Denny Doyle snared & threw to Cecil Cooper to send the Sox to the World Series.

The rest is history, with the elation of Game 6 (above) soon giving way to the first soul-crushing (and tear-inducing) sporting defeat of my life: Yaz lofting a harmless fly ball to center, and Cincinnati winning the Series in 7 games.

Now, for my math-fan readers, “75” has a cool attribute.  If you sum the digits, then add numbers Fibonacci-style, you eventually get back to . . . 75!

• 7+5 = 12
• 5+12 =17
• 12+17=29
• 17+29=46
• 29+46=75

I’m pretty sure that Da Vinci was the first to prove this, then hid the solution in his drawing of the Vitruvian Man.  And that’s why the Sox were cursed in 75.  Or something like that.

Onto the quiz.

Rules

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

Question 1

The rules prohibit lawyers from asking clients to consent to conflicts that might arise in the future.

• A.    True
• B.     False
• C.     True, but the rule only applies in criminal cases

Question 2

What do these have in common?

• Expenses of investigation;
• Expenses of medial examinations; and
• Costs of obtaining and presenting evidence

Question 3

Which is the most accurate answer?

An attorney shall not “prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless __________”

• A.    The attorney or recipient is related to the client.
• B.     The client gives informed consent
• C.     The client gives informed consent, confirmed in writing

Question 4

Rule 1.18 relaxes a lawyer’s duty of loyalty to prospective clients who meet with, but do not retain, the lawyer.  There is another duty that Rule 1.18 does not relax.  That is, a duty that the lawyer owes to the prospective client even though the prospective client chose not retain the lawyer.

What is the duty?

Question 5

Following up on last week’s controversial column, I know that a few of my readers prefer a particular band to both the Beatles and the Stones.

Imagine a lawyer who is on the road, and maybe on the run.  The lawyer says:

“Sitting and staring out the hotel window

Got a tip they’re gonna kick the door in again

I’d like to get some sleep before I travel

But if you gotta warrant I guess you’re gonna come in”

I’m not sure a lawyer satisfies the duty of competence by basing his or her understanding of criminal law/criminal procedure/constitutional law on the teachings of  …….. who?

 

CCBA Champs Choose COTS

Earlier today, Halvorson’s was the site of the 4th (or 5th, or something like that) Annual Chittenden County Bar Association Legal Ethics Pub Quiz.  CCBA members gathered under sunny skies on the back porch, with Church Street’s sounds of cool jazz giving way to a hotly contested quiz.

Why so hotly contested?  For the first time ever, participants were encouraged to donate to a prize pool, with the pool donated to the charity of the winning team’s choice.  Teams battled thru 6 rounds of 10 questions each.

Without further adieu, congratulations to the team of Kampmann, Sussman, Nolan &  Griffin!

KSNG claimed the crown with an impressive total of 56 points.  Then, Maryanne Kampmann, Rob Sussman, Craig Nolan, and Aimee Griffin selected COTS as the recipient of the $256 prize pool.

Thank you Aimee, Maryanne, Rob, and Craig….thank you CCBA…thank you Halvsorson’s……and thank you to the folks at the Committee on Temporary Shelter for all that you do for Vermont’s homeless and marginally housed.

Monday Morning Answers: Beatles v. Stones

Mystery solved.

• Mystery:  what can I blog about that will cause lawyers to respond?
• Solution:  Assert that the Stones are better than the Beatles.

The responses were fantastic!  My non-scientific analysis:

• 1/3 flat out disagreed with me
• 1/3 disagreed, but argued that there’s room to like both bands
• 1/3 agreed

Even within the final group, the responses revealed an affinity for Their Satanic Majesties Request that took me by surprise. Also, within my readership, there’s a healthy undercurrent of support for the The Kinks as being as important to the British Invasion as both the Beatles and Stones.

In any event, I love when lawyers argue passionately about an issue that has nothing to dow with the law. Indeed, one of the goals behind this blog is to demonstrate that we’re much more than the stereotype of our profession.  Readers:  you responses to Friday’s blog proved beyond a reasonable doubt that we are.  Thank you!

Stay tuned – I’m toying with the idea of a turning Friday’s debate into a moot court argument that I’ll use as a fundraiser.  And I already have an excellent idea of who will represent each side!

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

Honor Roll

• Karen Allen, Esq.
• Matthew Anderson, Pratt Vreeland Kennelly Martin & White
• Jim Carroll, Carroll, Boe, & Pell
• Beth DeBernardi, ALJ, Dept. of Labor
• Robert Grundstein, Esq.
• Anthony Iarrapino, Esq.
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Patrick Kennedy, First Brother, Dealer.Com
• Deborah Kirchwey, Esq.
• Eric Knudsen, Lanrock Sperry & Wool
• Aileen Lachs, Mickenberg, Dunn, Lachs & Smith
• Kevin Lumpkin, Sheehey Furlong & Behm
• Michael Lipson, Esq.
• Marmalade Skies
  • Elizabeth Kruska & Wesley Lawrence
  • given the backdrop, best name in history of #fiveforfriday
• Marsicovetere & Levine
  • Jordana Levine, Michael Shane, Rachel Thomspon
• Lon McClintock, Esq.
• Jeffrey Messina, Bergeron, Paradis, Fitzpatrick
• Andy Mikell, VATC
• Hal Miller, First American, Oceanside Division
• Herb Ogden, Esq.
• Dan Richardson, Tarrant, Gillies, & Richardson
• Brice Simon, Breton & Simon
• Matthew Valerio, Defender General

Answers

• Easiest:  Question 1
• Most difficult: Question 5
• Most difficult in ethics:  Question 2

There’s a rule that imposes “special responsibilities” upon:

• A.  Prosecutors; Rule 3.8
• B.  Judges
• C.  Juvenile defenders
• D.  Real estate lawyers who also sell title insurance

Question 2

The “self-defense” exception to Rule 1.6 is often discussed with respect to:

• A.  Disclosing a client’s intent to commit a crime
• B.  Disclosing a client’s past commission of a crime
• C.  Responding to a client’s negative online review; See this blog post.
• D.  Withdrawing from a matter to keep from violating the ethics rules

Question 3

Which is most accurate?

• A.  A fee violates the prohibition on unreasonable fees only if it is collected
• B.  Vermont’s rules require lawyers to self-report violations of the rules
• C.  A comment to the rule on conflicts of interest with a former client suggests that the rule does not apply if 10 years have passed since the prior representation.
• D.  A lawyer must deliver the file upon the termination of the representation.  Rule 1.16(d).

Question 4

Attorney called with an inquiry. I listened, then replied:

“If you reasonably believe Client is telling you the truth, you can disclose it to the police or his family or someone who can help.  You don’t have to disclose, but you aren’t prohibited from disclosing.”

What did Attorney learn from or about Client that prompted Attorney to call me?

Attorney learned that Client intended to commit an act that is likely to result in death or substantial bodily harm to Client.  See, Rule 1.6(c)(1); Comment [10].

Question 5

With a hidden shout out to regular reader, here’s this week’s question 5:

This week, I’ve had the opportunity to speak with two fantastic groups of lawyers: the state’s prosecutors and the state’s public defenders.  You can’t swing a dead cat in Vermont’s criminal courts without hitting a dedicated, competent public service attorney.  To each group, thank you for all that you do.

Prosecutors and defense attorneys often ask me about Rule 3.8 and a prosecutor’s Brady obligations.  As most of you know, Brady v. Maryland involved a prosecutor’s decision to withhold potentially exculpatory information.

What specific item of evidentiary value to the defense did the Brady prosecutor fail to disclose?

A co-defendant’s written statement that the co-defendant acted alone.

 

Five for Friday: Beatles v. Stones

Welcome to Five for Friday!

Before the quiz, I am compelled to address my readers who have The Beatles on their brains.

Several contacted me this week to ask if the pop culture slant to #fiveforfriday would honor today’s 50th Anniversary of The Beatles U.S. release of Sgt. Pepper’s Lonely Hearts Club Band.

It will, but for reasons you’d never guess.

As should be obvious to long-time readers, I grew up a Stones fan. In my mind, the bands are Red Sox & Yankees, Sharks & Jets, Edward & Jacob.  I’ve adhered to the code of rivalries, rarely, if ever, playing a Beatles 45, 33, cassette, or CD.  I certainly have never downloaded a single of their songs, a boycott that dates to my days as what felt like the only Gen X kid without the obligatory poster of the Abbey Road album cover hanging in his dorm room.

I often blog about Rule 1.1’s duty of competence.  Six months after The Beatles released Pepper, the Stones released Their Satanic Majesties Request.  Terrible album!  Mick and company probably violated the rock equivalent of Rule 1.1 by trying to sound like the Beatles on Pepper.  Fortunately, the Stones quickly returned to their roots.

In order, their albums that followed Satanic Majesties:

• Beggars Banquet
• Let It Bleed
• Sticky Fingers
• Exile on Main Street

Are you f’ing kidding me?!?! Hammer don’t hurt ’em!

So, 70 years after Sgt. Pepper taught the band to play, thank you Beatles for setting the Stones on the path to the most competent run of album releases in recorded history! With “competent” meaning “spectaculary fantastic.”

On to the quiz!

Rules

• There are none. Open book, open search engine, text a friend. Use whatever resource you want. Reading the rules is a good thing!
• Exception: Question 5.  We try to play that one honest.
• Team entries welcome! Creative team names even more welcome!
• Please share the quiz, even on social media  #fiveforfriday
• Unless stated otherwise, the Vermont Rules of Professional Conduct apply
• Please e-mail answers to michael.kennedy@vermont.gov Please do not use the “comment” feature to send your answers.
• I will post the answers and Honor Roll on Monday
• Might not be valid at all locations. All terms & conditions apply.  Void in AK and HI.

Question 1

There’s a rule that imposes “special responsibilities” upon:

• A.  Prosecutors
• B.  Judges
• C.  Juvenile defenders
• D.  Real estate lawyers who also sell title insurance

Question 2

The “self-defense” exception to Rule 1.6 is often discussed with respect to:

• A.  Disclosing a client’s intent to commit a crime
• B.  Disclosing a client’s past commission of a crime
• C.  Responding to a client’s negative online review
• D.  Withdrawing from a matter to keep from violating the ethics rules

Question 3

Which is most accurate?

• A.  A fee violates the prohibition on unreasonable fees only if it is collected
• B.  Vermont’s rules require lawyers to self-report violations of the rules
• C.  A comment to the rule on conflicts of interest with a former client suggests that the rule does not apply if 10 years have passed since the prior representation.
• D.  A lawyer must deliver the file upon the termination of the representation.

Question 4

Attorney called with an inquiry. I listened, then replied:

“If you reasonably believe Client is telling you the truth, you can disclose it to the police or his family or someone who can help.  You don’t have to disclose, but you aren’t prohibited from disclosing.”

What did Attorney learn from or about Client that prompted Attorney to call me?

Question 5

With a hidden shout out to regular reader, here’s this week’s question 5:

This week, I’ve had the opportunity to speak with two fantastic groups of lawyers: the state’s prosecutors and the state’s public defenders.  You can’t swing a dead cat in Vermont’s criminal courts without hitting a dedicated, competent public service attorney.  To each group, thank you for all that you do.

Prosecutors and defense attorneys often ask me about Rule 3.8 and a prosecutor’s Brady obligations.  As most of you know, Brady v. Maryland involved a prosecutor’s decision to withhold potentially exculpatory information.

What specific item of evidentiary value to the defense did the Brady prosecutor fail to disclose?

 

 

Monday Morning Answers: Memorial Day

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

Honor Roll

• Matthew Anderson, Pratt Vreeland Kennelly Martin & White
• Penny Benelli, Dakin & Benelli
• Jennifer Blomback, VATC
• Beth DeBernardi, ALJ, Department of Labor
• Robert Grundstein, Esq.
• Anthony Iarrapino, Esq.
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Patrick Kennedy, First Brother, Dealer.Com
• Aileen Lachs, Mickenberg, Dunn, Lachs, Smith
• Kevin Lumpkin, Sheehey Furlong & Behm
• Hal Miller, Esq.
• Lon McClintock, Esq.
• Herb Ogden, Esq.
• Jim Runcie, Esq.

Stats

• Hardest:  Question 5. Of the ethics, Question 1.
• Easiest:  Question 4
• Hidden Pop Culture Reference: Question 3.  Emmit & Ray Stussy are the twin brothers played by Ewan McGregor in this season of Fargo.  I highly recommend it. V.M. Varga has quickly become one of my favorite characters in TV history.

Answers

Question 1

Firm represents Client.  The matter settles and Firm receives an insurance check for $50,000.  Firm notifies Cient and deposits the check into trust.

Firm presents client with an accounting that indicates that Client owes Firm $15,000. Firm is prepared to disburse the remaining $35,000 to Client.

Client contends that she only owes Firm $10,000.

Assume that nobody other than Firm & Client have interests in the settlement.  Which is most accurate?

• A.   Firm must keep the entire $50,000 in trust until the dispute is resolved.
• B.   Firm must disburse $40,000 to Client and keep $10,000 separate until the dispute is resolved.
• C.   Firm must disburse $35,000 to Client and keep $15,000 separate until the dispute is resolved.
• D.  Firm must disburse $35,000 to Client, disburse $10,000 to Firm, and keep $5,000 separate until the dispute is resolved.  See, Rule 1.15.  

Section (e) requires a lawyer to disburse funds that are not in dispute.  Section (a) prohibits commingling.  So, there is $45,000 that isn’t in dispute: Client’s $35,000 and the $10,000 Client agrees is owed to Firm.  Those portions must be disbursed, with the disputed $5000 remaining separate until the dispute is resolved.

Question 2

Attorney called with an inquiry.  I listened, then said:

• “The first thing the rule requires is that you not state or imply that you’re disinterested.”

Given my statement, it’s most likely that Attorney called to discuss:

• A.  A subpoena to testify about a former client’s matter
• B.  A prospective client who met with, but did not retain Attorney
• C.  A request from an unrepresented person to meet with Attorney to provide information related to a client’s matter.   See, Rule 4.3.
• D.  Serving on a jury

Question 3

Lawyer represents Emmit in a dispute with a government agency.  Lawyer learns that the agency interprets a regulation in a particular way.

Lawyer also represents Ray.  Ray is involved in a dispute with the same government agency, one that involves the same regulation.

Which is most accurate?

• A.   Absent Emmit’s consent, Lawyer may not use the agency’s interpretation to help Ray and, therefore, must withdraw from Ray’s matter.
• B.   Unless the agency’s interpretation is a matter of public record, Lawyer may not use the interpretation to assist Ray and, therefore, must withdraw from Ray’s matter.
• C.  If the two matters are the same or substantially related, Lawyer may use anything that he learns while representing Emmit to help Ray.
• D.  If it would not disadvantage Emmit to do so, Lawyer may use the agency’s interpretation of the regulation to help Ray.  See, Rule 1.8, Comment [5].

Question 4

Of the following, one has not traditionally been treated as a rules violation, viewed instead as a mistake that does not rise to the level of an ethics violation.  In my opinion, that should soon change, and the conduct should be considered a violation of the rules.

• A.   Withdrawing because a client calls or e-mails too often
• B.    An associate acting at the express direction of a supervising partner
• C.   Falling for a common trust account scam.  See, this post.
• D.   Representing a client who is adverse to a former client on the theory that “I don’t remember anything about the former client’s case.”

Question 5

Somewhat of a dichotomy given the weekend . . .

This lawyer collapsed and died of a heart attack near his Washington, D.C. home in 1988.  He was buried with full military honors in Arlington National Cemetery – in part because of his service in the U.S. Navy World War II, and in part because he once held a cabinet position.  The cabinet position: Attorney General of the United States.

In 1976, the lawyer was disbarred by the State of New York as a result of having been convicted of crimes that took place while he served as U.S. Attorney General.

Name the lawyer.

John Mitchell. Mitchell was Attorney General during Watergate.

Five for Friday: Memorial Day

Welcome to the Friday that marks the unofficial beginning of summer!

There’s a lot to do this weekend.

• Run (or cheer) in the Vermont City Marathon (I found at least 17 VT attorneys in the entry list, and that doesn’t even count the relay teams!),
• take in a different type of racing action at Bear Ridge, Thunder Road, or the Devil’s Bowl,
• travel on a special Vermont passport,
• sample the fare at Chowderpalooza,
• use Will-O-Wood, the official campground of Ethical Grounds, as your base to experience all that the NEK has to offer.
• send in your answers to the #fiveforfriday quiz

Whatever you do, enjoy it! But, if even for just a moment, remember those who gave their lives in the service of this country.

On to the quiz!

The rules

• There are none. It’s open book, open search engine, use whatever resource you have.  Reading the rules is a good thing!
• Exception: Question 5.  We try to play that one honest.
• Team entries welcome.  Creative team names encouraged.
• Unless stated otherwise, the Vermont Rules of Professional Conduct apply
• Please e-mail answers to michael.kennedy@vermont.gov
• Please do not use the “comment” feature to submit your answers (competence includes tech competence)
• I will post the answers Monday, along with the week’s Honor Roll
• Please consider sharing the quiz with friends
• Hashtag & share: #fiveforfriday

Question 1

Did you think I forgot to include math in this week’s column? Ha!

Firm represents Client.  The matter settles and Firm receives an insurance check for $50,000.  Firm notifies Cient and deposits the check into trust.

Firm presents client with an accounting that indicates that Client owes Firm $15,000. Firm is prepared to disburse the remaining $35,000 to Client.

Client contends that she only owes Firm $10,000.

Assume that nobody other than Firm & Client have interests in the settlement.  Which is most accurate?

• A.   Firm must keep the entire $50,000 in trust until the dispute is resolved.
• B.   Firm must disburse $40,000 to Client and keep $10,000 in trust until the dispute is resolved.
• C.   Firm must disburse $35,000 to Client and keep $15,000 in trust until the dispute is resolved.
• D.  Firm must disburse $35,000 to Client, disburse $10,000 to Firm, and keep $5,000 in trust until the dispute is resolved.

Question 2

Attorney called with an inquiry.  I listened, then said:

• “The first thing the rule requires is that you not state or imply that you’re disinterested.”

Given my statement, it’s most likely that Attorney called to discuss:

• A.  A supboena to testify about a former client’s matter
• B.  A prospective client who met with, but did not retain Attorney
• C.  A request from an unrepresented person to meet with Attorney to provide information related to a client’s matter
• D.  Serving on a jury

Question 3

Lawyer represents Emmit in a dispute with a government agency.  Lawyer learns that the agency interprets a regulation in a particular way.

Lawyer also represents Ray.  Ray is involved in a dispute with the same government agency, one that involves the same regulation.

Which is most accurate?

• A.   Absent Emmit’s consent, Lawyer may not use the agency’s interpretation to help Ray and, therefore, must withdraw from Ray’s matter.
• B.   Unless the agency’s interpretation is a matter of public record, Lawyer may not use the interpretation to assist Ray and, therefore, must withdraw from Ray’s matter.
• C.  If the two matters are the same or substantially related, Lawyer may use anything that he learns while representing Emmit to help Ray.
• D.  If it would not disadvantage Emmit to do so, Lawyer may use the agency’s interpretation of the regulation to help Ray.

Question 4

Of the following, one has not traditionally been treated as a rules violation, viewed instead as a mistake that does not rise to the level of an ethics violation.  In my opinion, that should soon change, and the conduct should be considered a violation of the rules.

• A.   Withdrawing because a client calls or e-mails too often
• B.    An associate acting at the express direction of a supervising partner
• C.   Falling for a common trust account scam
• D.   Representing a client who is adverse to a former client on the theory that “I don’t remember anything about the former client’s case.”

Question 5

Somewhat of a dichotomy given the weekend . . .

This lawyer collapsed and died of a heart attack near his Washington, D.C. home in 1988.  He was buried with full military honors in Arlington National Cemetery – in part because of his service in the U.S. Navy World War II, and in part because he once held a cabinet position.  The cabinet position: Attorney General of the United States.

In 1976, the lawyer was disbarred by the State of New York as a result of having been convicted of crimes that took place while he served as U.S. Attorney General.

Name the lawyer.