Monday Morning Honors #269

Happy Monday!

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

Honor Roll

  • Karen Allen, Karen Allen Law
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, UIC School of Law
  • Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labor
  • Andrew Delaney, Martin Delaney & Ricci
  • Benjamin Gould, Paul Frank + Collins
  • Robert Grundstein
  • Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
  • Deb Kirchwey, Law Office of Deborah Kirchwey
  • Elizabeth Kruska, Past-President, Vermont Bar Association
  • Pam Loginsky, Deputy Prosecuting Attorney, Pierce County (WA)
  • Kevin Lumpkin, Sheehey Furlong & Behm
  • Bob Lydon, Law Clerk for Vermont Supreme Court Justice Nancy Waples
  • Pam Marsh, Marsh & Wagner
  • Susan McManus, Office of the Bennington County Public Defender
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeff Messina, Messina Law
  • Hal Miller, First American Title, Hawaii State Counsel
  • Keith Roberts, Darby Kolter & Roberts
  • Honorable John Valente, Vermont Superior Judge
  • Jason Warfield, J.D.
  • Thomas G. Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

Regular reader Professor Alberto Bernabe urges law students to remember the core principles of legal ethics by associating those principles with the letter grades that they don’t want to receive in his class. So, Professor Bernabe refers to 4 Cs, 1 D, and 1F.

There’s a rule that requires lawyers to act with “reasonable _______ and promptness” when representing a client. A comment to the rule states that a “lawyer’s duty to act with reasonable ________ does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.”

Which core duty that is one of Professor Bernabe’s “bad grades” properly fills in the blank?

DILIGENCE.   The language is from Comment 1 to V.R.Pr.C. 1.3.

Question 2

A recent amendment to the Vermont Rules of Professional Conduct prohibits lawyers from issuing a check that is drawn on a pooled interest-bearing trust account (IOLTA) to ________:

Question 3

Fill in the blank.

A comment to one of the conflicts rules states that “continued common representation will almost always be inadequate if one client _________________.”

  • A.  pays a higher percentage of the lawyer’s fee than the other client.
  • B.  is also a client of the lawyer’s in an unrelated matter.
  • C.  is the lawyer’s main contact on matters related to the representation.
  • D.  asks the lawyer not to disclose to the other client information relevant to the common representation.V.R.Pr.C. 1.7, Cmt. [31].

Question 4

Fill-in-the-blank.

True story.  Earlier this week I received an email from a lawyer who was trying to avoid “noisy _______.”  Indeed, “noisy _______” is a phrase intended to remind lawyers not to disclose confidential information when filing and arguing a certain type of motion. 

What word properly fills in the blank?

Withdrawal.  See, Stop Making Noise

Question 5

Today’s introduction includes a link to the press release that DOJ issued after Attorney Michael Avenatti was sentenced to 14 years in prison for stealing millions from clients.

Last month, Netflix released a documentary in which Avenatti appeared. The documentary re-tells the true story of Avenatti’s former client, John Leonard.  In the mid-90s, Leonard, then 20, found a loophole in a promotion run by a major corporation that, according to Leonard, entitled him to a $30 million fighter jet. The corporation, which ran the promotion as part of the so-called “Cola Wars,” claimed that the offer of a jet was an obvious joke and that nobody could have reasonably believed that they could actually win a fighter jet. 

Netflix teased the documentary by describing the man’s attempts to claim the fighter jet as setting “the stage for a David & Goliath court battle for the ages.”   In the end, the corporation prevailed.

Name the corporation.

Pepsi. The documentary is Pepsi, Where’s My Jet?  According to Salon, Avenatti’s work uncovering prior Pepsi promotion scandals was one of most bizarre revelations in the documentary.  Pepsi may have won the legal action but, depending on how you view things, arguably lost the Cola Wars.  Indeed, the Garage Bar menu includes Jack & Coke, no substitutions.

Five for Friday #269

Welcome to Friday and the 269th legal ethics quiz!

I haven’t blogged much lately and can’t remember the last time I posted a quiz. However, to borrow from an evidentiary phrase, the absence of posts on legal ethics news does not mean that legal ethics has been absent from the news.

To wit, since the last quiz:

That’s quite a month. And it doesn’t even include the crazy stories that I actually found time to blog about over the past few weeks!

Perhaps the lesson is this.

Sadly, legal ethics blogs will never run out of material.  When they appear to have done just that, rest assured, they haven’t.  That is, the absence of evidence of legal ethics news is not evidence of an absence of legal ethics news.  Rather, I confess: it’s evidence of the blogger’s lack of diligence.

Stay safe in the storm.  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 consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

Regular reader Professor Alberto Bernabe urges law students to remember the core principles of legal ethics by associating those principles with the letter grades that they don’t want to receive in his class. So, Professor Bernabe refers to 4 Cs, 1 D, and 1F.

There’s a rule that requires lawyers to act with “reasonable _______ and promptness” when representing a client. A comment to the rule states that a “lawyer’s duty to act with reasonable ________ does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.”

Which core duty that is one of Professor Bernabe’s “bad grades” properly fills in the blank?

Question 2

A recent amendment to the Vermont Rules of Professional Conduct prohibits lawyers from issuing a check that is drawn on a pooled interest-bearing trust account (IOLTA) to ________:

  • A.   A relative.
  • B.   An employee.
  • C.   Themselves.
  • D.   Cash.

Question 3

Fill in the blank.

A comment to one of the conflicts rules states that “continued common representation will almost always be inadequate if one client _________________.”

  • A.  pays a higher percentage of the lawyer’s fee than the other client.
  • B.  is also a client of the lawyer’s in an unrelated matter.
  • C.  is the lawyer’s main contact on matters related to the representation.
  • D.  asks the lawyer not to disclose to the other client information relevant to the common representation.

Question 4

Fill-in-the-blank.

True story.  Earlier this week I received an email from a lawyer who was trying to avoid “noisy _______.”  Indeed, “noisy _______” is a phrase intended to remind lawyers not to disclose confidential information when filing and arguing a certain type of motion. 

What word properly fills in the blank?

Question 5

Today’s introduction includes a link to the press release that DOJ issued after Attorney Michael Avenatti was sentenced to 14 years in prison for stealing millions from clients.

Last month, Netflix released a documentary in which Avenatti appeared. The documentary re-tells the true story of Avenatti’s former client, John Leonard.  In the mid-90s, Leonard, then 20, found a loophole in a promotion run by a major corporation that, according to Leonard, entitled him to a $30 million fighter jet. The corporation, which ran the promotion as part of the so-called “Cola Wars,” claimed that the offer of a jet was an obvious joke and that nobody could have reasonably believed that they could actually win a fighter jet. 

Netflix teased the documentary by describing the man’s attempts to claim the fighter jet as setting “the stage for a David & Goliath court battle for the ages.”   In the end, the corporation prevailed.

Name the corporation.

Five for Friday #268

Welcome to Friday and the 268th legal ethics quiz!

Throughout the week, various ideas for today’s introduction percolated in my mind. A few even led to drafts that I’ve not yet deleted.  Then, this morning, I happened upon a French proverb:

Silence makes no mistakes.”

With 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 consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

Below, I’ve listed 3 carve outs in which a rule permits a lawyer to do something that the same rule otherwise prohibits.  Which of the 7 Cs of legal ethics does the rule govern?

  • To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the 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 2

There is a rule that sets out a lawyer’s duties when, in connection with a representation, the lawyer is in possession of funds in which both the “client and a third person claim interests.”  The rule requires the lawyer to promptly distribute all portions that are not in dispute and to keep the remainder “separate” until the dispute is resolved.

Does the rule apply when the lawyer is the “third person” who claims an interest in the funds?

  • A.  Yes.
  • B.  No.  In this situation, the rule requires the lawyer to disburse the entire portion to the client and then seek to recover the lawyer’s share through “appropriate judicial process.”

Question 3

Here’s an excerpt from a comment to one of the rules.  Fill in the blank.

“The tribunal has proper objection when the trier of fact may be confused or misled by a lawyer servicing as both advocate and ____________.  The opposing party has proper objection where the combination of roles may prejudice the party’s rights in the litigation.”

Question 4

Lawyer called me with an inquiry. I listened, then responded “we just adopted a new rule that applies to your situation. It allows you to disclose otherwise confidential information in order to detect and resolve conflicts of interest, as long as the information you reveal won’t compromise the attorney-client privilege or otherwise prejudice your clients”

Given my response, what is Lawyer’s situation

  • A.  Lawyer is changing jobs.
  • B.  Lawyer is changing malpractice carriers.
  • C.  Lawyer received a jury summons.
  • D.  Lawyer was selected for a trust account audit by a CPA firm that does business in Vermont.

Question 5

One of the jobs in a U.S. President’s administration is that of Pardon Attorney. I’m not positive, but I think that the lawyer who serves as Pardon Attorney must be very busy this time of year. 

According to legend, President Lincoln granted clemency one November, as did President Kennedy 100 years later.  However, it wasn’t until 1989 that President Bush began an official tradition that continues to this day. Several years ago, President Obama spoke eloquently:

“And it is my great privilege — well, it’s my privilege — actually, let’s just say it’s my job — to grant them clemency this afternoon. As I do, I want to take a moment to recognize the brave [others] who weren’t so lucky, who didn’t get to ride the gravy train to freedom — who met their fate with courage and sacrifice — and proved that they weren’t chicken.”

According to media reports from earlier this week, President Biden is likely to issue pardons next week to two North Carolinians. Assuming that President Biden asks the Pardon Attorney for advice, competent advice will include understanding who is being considered for pardons.

Who is up for presidential pardons this time of year?

Monday Morning Honors #267

Happy Monday! Last full week before the holidays.  Make the most of it!

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

Honor Roll

Answers

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 consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

Consider the following:

  • Thoroughness, preparation, legal knowledge, and skill.
  • Well-being.
  • Staying abreast of developments in the law, including the risks and benefits of technology.

Each is an aspect of the duty of ________.

COMPETENCE.   V.R.Pr.C. 1.1 sets out the duty of competence and defines it to include the thoroughness, preparation, legal knowledge, and skill required for the representation.  Comment 8 addresses the duty to stay abreast of the risk and benefits of relevant technology, while Comment 9 discusses well-being as an aspect of competence.

Question 2

Here’s a comment to one of the rules:

  • “A lawyer entitled to a fee is permitted by paragraph (c)(3) to prove the services rendered in an action to collect it.  This aspect of the rule expresses the principle that the beneficiary of a fiduciary relationship may not exploit it to the detriment of the fiduciary.”

Which of the 7 Cs of Legal Ethics is the subject of the rule that this comment accompanies?

CONFIDENTIALITY.  The quoted language is from Comment 13.

Question 3

Fill in the blank.

There’s a rule that prohibits ex parte communication with two groups of people. One group includes judges and any “other person acting in a judicial or quasi-judicial capacity in a pending or impending adversary proceeding.”   The other group includes current and prospective _____________.

JURORS.  V.R.Pr.C. 3.5(b)(2).

Question 4

I rarely receive inquiries about this rule, but the topic it addresses is one that many lawyers find frustrating in opposing counsel.  A comment to the rule suggests that a violation likely turns on “whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay.”

What’s the name of the rule?

  • A.  Expediting Litigation.  V.R.Pr.C. 3.2
  • B.  Conflicts of Interest: Current Clients: Specific Rules.
  • C.  Declining or Terminating Representation.
  • D.  Meritorious Claims and Contentions.

Question 5

Today’s question is about a movie that is 30 years old.  However, the lead role was played by an actor who is going to finish as Hollywood’s top paid star of 2022, reportedly earning more than $100 million for a movie that was released this spring.

The 1992 movie included several memorable courtroom scenes.  In one, a member of the 3-lawyer defense team objected to testimony and asked that it be stricken from the record.  The following exchange ensued:

  • Judge:  The objection is overruled counsel.
  • Lawyer:  Sir, the defense strenuously objects and requests a meeting in chambers so that his honor might have an opportunity to hear discussion before ruling on the objection.
  • Judge: The objection is overruled counsel.

A few moments later, the court went into recess.  Annoyed with the lawyer, co-counsel asked:

  • “I strenuously object? Is that how it works?” 

Then, to drive home the point, co-counsel pretended to be both lawyer and judge in this scenario:

  • Lawyer:  Objection.
  • Judge:  Overruled.
  • Lawyer:  No, no, no, no I strenuously object.
  • Judge: Oh, well if you strenuously object, let me take a moment to reconsider.

Later, in the movie’s famous climactic scene, the leading character – and leader of the defense team — asked a key witness “did you order the ____   ____?” The judge told the witness that the witness did not have to answer. The witness answered anyway. 


If they were real-life lawyers, the defense team would probably be doing something today to observe Veterans Day.

What had the witness ordered?  A CODE RED (The movie is A Few Good Men)

Bonus: name the 2022 movie that starred the 1992’s movie’s lead, albeit not as a lawyer. It’s another movie whose characters likely observe Veterans Day.

TOP GUN – MAVERICK.  Tom Cruise starred in both.

Five for Friday #267

Welcome to Friday and the 267th legal ethics quiz!

Sometimes you’re the first person to the office because you’re the first person to the office. 

Other times you’re the first person to the office because you’re the only one who didn’t realize today is a state and federal holiday. 

Somewhere my mother nods with a knowing grimace, confounded yet again by my persistent inability to pay attention to so many things.

On the bright side, having realized that it’s Veterans Day, I’m able to discard the intro I’d originally planned, conscripting it to the heap of intros that seem so clever late Thursday night, only to send me into a panic on Friday morning when I wake frantically hoping that I didn’t click “publish.” Instead, I have good news to share in honor of the holiday.

Vermont Law School’s South Royalton Legal Clinic houses the Veterans Legal Assistance Project of Vermont.  From the website:

  • “VLAP was established in 2014 to provide pro bono legal assistance to Vermont’s military veteran population. The project represents veterans with state civil law issues in Windsor and Orange counties, as well as on a statewide basis in matters concerning veterans law-specific issues, such as appeals from the denial of VA benefits and discharge upgrades. VLAP also assists veterans with debtor issues such as bankruptcy relief, foreclosure defense, and consumer protection. Through ongoing outreach to community partners, VLAP continues to develop awareness of veterans’ needs and advocate for adequate services.”

For now, VLAP is only for student clinicians who work under the supervision of Vermont lawyers Don Hayes and Amanda Murphy.  Next year, however, things will change.

Thomas M. French is a Vermont lawyer.  In 2020, Tom and Samantha Lednicky received the Vermont Bar Association’s Pro Bono Service Award. I blogged about their pro bono work here.  The VBA press release included this about Tom:

  •  is a pro bono emeritus attorney in Brattleboro who was nominated by attorneys James Valente and Thomas Costello for his work with military veterans.  Following military service himself as a JAG attorney, French worked as a general practitioner in Windham County for 50 years, often serving clients pro bono.  After retirement, Attorney French set up a pro bono program at his local American Legion post where he can be found every Tuesday and Thursday helping veterans obtain benefits they have been wrongfully denied.  In 4 years, Attorney French has won 14 out of the 15 actions he brought for his veteran clients, securing nearly $500,000 in benefits for them.”

Tom’ son, also named Tom, is a VLS alum. Tom the younger recently made a generous gift to VLAP to fund a program named after his father: the Thomas M. French Advocacy Fund.  VLAP will use the fund to train the next wave of lawyers willing to assist Vermont’s veterans on a pro bono basis.  A half-day CLE program is scheduled for April 21, 2023.  Attendees will receive the credit required for accreditation to practice before the Veterans Administration. The training is free for any attorney who agrees to take on some pro bono work for the veteran community.  Thereafter, the fund will enable VLAP to provide support and resources to participating attorneys.

For more info, contact Don or Amanda.

Thank you Tom & Tom!

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 consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

Consider the following:

  • Thoroughness, preparation, legal knowledge, and skill.
  • Well-being.
  • Staying abreast of developments in the law, including the risks and benefits of technology.

Each is an aspect of the duty of _______________.

Question 2

Here’s a comment to one of the rules:

  • “A lawyer entitled to a fee is permitted by paragraph (c)(3) to prove the services rendered in an action to collect it.  This aspect of the rule expresses the principle that the beneficiary of a fiduciary relationship may not exploit it to the detriment of the fiduciary.”

Which of the 7 Cs of Legal Ethics is the subject of the rule that this comment accompanies?

Question 3

Fill in the blank.

There’s a rule that prohibits ex parte communication with two groups of people. One group includes judges and any “other person acting in a judicial or quasi-judicial capacity in a pending or impending adversary proceeding.”   The other group includes current and prospective _____________.

Question 4

I rarely receive inquiries about this rule, but the topic it addresses is one that many lawyers find frustrating in opposing counsel.  A comment to the rule suggests that a violation likely turns on “whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay.”

What’s the name of the rule?

  • A.  Expediting Litigation.
  • B.  Conflicts of Interest: Current Clients: Specific Rules.
  • C.  Declining or Terminating Representation.
  • D.  Meritorious Claims and Contentions.

Question 5

Today’s question is about a movie that is 30 years old.  However, the lead role was played by an actor who is going to finish as Hollywood’s top paid star of 2022, reportedly earning more than $100 million for a movie that was released this spring.

The 1992 movie included several memorable courtroom scenes.  In one, a member of the 3-lawyer defense team objected to testimony and asked that it be stricken from the record.  The following exchange ensued:

  • Judge:  The objection is overruled counsel.
  • Lawyer:  Sir, the defense strenuously objects and requests a meeting in chambers so that his honor might have an opportunity to hear discussion before ruling on the objection.
  • Judge: The objection is overruled counsel.

A few moments later, the court went into recess.  Annoyed with the lawyer, co-counsel asked:

  • “I strenuously object? Is that how it works?” 

Then, to drive home the point, co-counsel pretended to be both lawyer and judge in this scenario:

  • Lawyer:  Objection.
  • Judge:  Overruled.
  • Lawyer:  No, no, no, no I strenuously object.
  • Judge: Oh, well if you strenuously object, let me take a moment to reconsider.

Later, in the movie’s famous climactic scene, the leading character – and leader of the defense team — asked a key witness “did you order the ____   ____?” The judge told the witness that the witness did not have to answer. The witness answered anyway. 

What had the witness ordered?

If they were real-life lawyers, the defense team would probably be doing something today to observe Veterans Day.

Bonus: name the 2022 movie that starred the 1992’s movie’s lead, albeit not as a lawyer. It’s another movie whose characters likely observe Veterans Day.

Monday Morning Honors #266

Happy sunny Monday!

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

Honor Roll

Answers

Question 1

This week, the ABA Standing Committee on Ethics and Professional Responsibility issued an advisory opinion in which it concluded that a lawyer who includes a client on an electronic communication to opposing counsel has:

  • A.  not impliedly consented to a “reply all.”
  • B.  impliedly consented to “reply all.”  See, this blog post.

Question 2

Which does the Vermont rule treat different from the others. 

  • A.  a certified check issued by a federally insured bank.
  • B.  a check drawn on an IOLTA account of a Vermont licensed attorney that exceeds $25,000.
  • C.  a check issued by an insurance company that is licensed to do business in Vermont that exceeds $250,000.
  • D.  a personal check that exceeds $1,000.

V.R.Pr.C. 1.15(f) prohibits a lawyer from disbursing from trust without “collected funds.”  The rule defines “collected funds” as “funds that a lawyer reasonably believes have been deposited, finally settled, and credited to the lawyer’s trust account.”

Paragraph (g) lists several instruments that a lawyer may presume constitute “collected funds” upon deposit.  Answers A, B, and C are among those listed. 

“D” is the correct answer because Rule 1.15(g)(5) only provides a safe harbor “when the deposit is a person check or checks in an aggregate amount that does not exceed $1,000 per transaction.”

Question 3

Lawyer received a letter from a former client who is not represented by counsel. In the letter, Former Client alleges that Lawyer committed malpractice.  Later, Lawyer agreed to pay, and Former Client agrees to accept, $X to resolve the claim.  By rule, before resolving the dispute, Lawyer must _______:

  • A.  Notify Disciplinary Counsel.
  • B.  Confirm the agreement in a writing that signed by the client.
  • C.  A & B.
  • D.  Advise Former Client in writing of the desirability of seeking independent legal counsel, and give Former Client a reasonable opportunity to do so.  V.R.Pr.C. 1.8(h)(2).

Question 4

When representing a client, can a lawyer ask a person other than the client to refrain from voluntarily giving relevant information to another party?

  • A.  no.
  • B.  yes, if the person is a relative of the client, and the lawyer reasonably believes that the person’s interests will not be adversely affected by giving such information.
  • C.  yes, if the person is an employee or other agent of the client, and the lawyer reasonably believes that the person’s interests will not be adversely affected by giving such information.
  • D.  B and CV.R.Pr.C. 3.4(f).

Question 5

In July, the State Bar of California disbarred Tom Girardi.  Earlier this week, the State Bar released a letter in which it revealed that, over the past 40 years, it had opened 205 investigations into Girardi and that “approximately 120 involved allegations related to trust account violations.” According to a news report:

  • “The State Bar noted that the handling of Tom’s disbarment ‘brought to light serious failures in the State Bar’s attorney discipline system’ which ‘have contributed to a lack of confidence in the State Bar’s ability to carry out our core responsibility of protecting the public.’

‘There is no excuse being offered here,’ the letter continued. ‘Girardi caused irreparable harm to hundreds of his clients, and the State Bar could have done more to protect the public.’

The agency also vowed to ‘never allow something like this to happen again.’”

In 1990s, Girardi helped a law clerk and residents of a California town who had complained about contaminated drinking water settle a case in which Pacific Gas & Electric agreed to pay $333 million.  

Name the movie that the case inspired:  ERIN BROKAVICH

Bonus: in 2000, Girardi, then 60, married his third wife, then 28. Name the tv show in which both she starred, and he made several appearances.  REAL HOUSEWIVES OF BEVERLY HILL.

Five for (Saturday) #266

Happy Saturday!

This will be long. If you want to skip to the quiz, I won’t be offended.  Given the medium, nor will I know.

This post replaces yesterday’s, which was posted in haste and, upon further review, wasn’t adequate.

As some of you know, I recently received the American Inns of Court (AIC) Professionalism Award for the Second Circuit. The award was presented at a ceremony in New York City last week. Then, the various circuit recipients were part of the AIC’s Celebration of Excellence that took place last Saturday at the United States Supreme Court. Finally, the Vermont Supreme Court recognized the award at an event in Montpelier on Thursday.

I spoke in both New York and Montpelier. I wish I’d done better. This morning, my thoughts of the past few weeks finally coalesced. Given access to a flux capacitor, I’d have said something like this instead.

.              .              .

I struggled to make sense of being selected to receive the award. This led to an inability to come up with any remarks. So, perhaps reminded by the news of the lawyer who was sanctioned for plagiarizing opposing counsel’s brief, I fired up my trusty Google machine and searched for “acceptance speeches.”

I found one that sparked a thought.

The Time100 Impact Awards honor “global leaders who have gone above and beyond to move their industries – and the world – forward.” Pardis Sabeti was one of this year’s recipients.  Dr. Sabeti opened her acceptance speech by stating:

  • “An impact can only exist if someone has the opportunity to make one.”

The statement made me realize that the award I received doesn’t reflect me.  It reflects the opportunities that others have created for me.    

Most of the opportunities I’ve received have come by virtue of my parents. This post would take a day to read if it detailed even a fraction what my mom and dad have done for me. From circumstances that might have deterred others, my parents succeeded far beyond what their worlds expected of them, overcoming odds to put me in a position where the odds were in my favor. Without their sacrifices and love, I’d never have ended up a lawyer, not to mention a lawyer accepting an award at the United States Court of Appeals.

Another of the 2022 Time100 Impact Awards went to Alia Bhatt.  Accepting the award, Bhatt said:

  • “I have no idea how I got here or what I’ve done to deserve this. But, what I do know is: If it falls to me in any way to lead by example, be a role model or make any kind of impact, I want to do it in as human and as flawed a way as possible.”

The words resonated with me. I have no idea what I’ve done to deserve the recognition that I received. But I do know that whatever I’ve done, Vermont’s legal profession has afforded me tremendous opportunities. 

  • You gave a lawyer with little experience the opportunity to serve as disciplinary counsel.
  • You gave a disciplinary prosecutor who was more interested in his side gig as a high school basketball coach become a member of the Vermont Bar Association’s Board of Managers.
  • You’ve afforded me the opportunity to relate legal ethics & professional responsibility to my personal interests: pop culture, sports, running, and trivia.
  • You let me record CLEs from my garage.

In short, you let me be me.

I am forever grateful for the opportunities provided by my parents and Vermont’s legal profession.

Still, I realized that I hadn’t exactly run with the opportunities. So, I went back to the Google machine.  Again, it provided clarity.

Albert Schweitzer said many things, including:

  • “A good example has twice the value of good advice.” 

And,

  • “Do something good.  Someone might imitate it.”

Each helped me to realize that the most important opportunities I’ve received are the opportunities to imitate the examples of others.

Of course, my parents.

As a lawyer, countless mentors, including Peter Hall and Joan Wing

I had the opportunity to work with Judge Hall in my first few years as disciplinary counsel, back when he often represented lawyers under disciplinary investigation.  An exceedingly effective advocate for his clients, Judge Hall’s approach to practice will always remind me of Aesop’s Fable of The North Wind and The Sun.  His example showed me that, even in the law, “Gentleness and kind persuasion win where force and bluster fail.”

To describe Joan is a “mentor” is an understatement that borders on misrepresentation by omission. Joan meant everything to my career in professional responsibility. She helped to start me here, propped me up in tough times that arose early, and then propelled me into my work with the Vermont Bar Association.  She also showed me what it means to be a “lawyer’s lawyer.”

Finally, members of Vermont’s legal profession. As bar counsel there are times when I feel like I’m not a “real” lawyer.  I don’t have to deal with clients or opposing counsel. I don’t have to sweat motion deadlines or responding to discovery requests.  I don’t have to manage a trust account or worry about making payroll. I don’t have to do a lot of the things that lawyers have to do just to keep their heads above water.

You do. And I often find myself in awe of how you do it. The commitment, passion, and grace that you demonstrate in exceedingly difficult circumstances serve as examples much more valuable than advice and that I hope to imitate.

At the event in D.C., AIC presented one of its most prestigious awards to Martin Jenkins. Justice Jenkins sits on the California Supreme Court. At the ceremony, Justice Jenkins spoke of the importance of professionalism and civility. He noted the opportunity for lawyers to manifest to be beacons of professionalism and opportunity, with the collective result being the American legal profession shining from a hill for all to see.  His remarks inspired me to use the occasion of the award to recommit myself to espousing professionalism and civility here in Vermont.

As we do, let us never give breath to the notion that professionalism is inconsistent with our professional obligations. It is not.  It is entirely consistent with our duties, and always has been. A few examples:

  • In 1836, Douglas Hoffman wrote his 50 Resolutions of Professional Deportment. Widely recognized as the first code of conduct to apply to the practice of law in America, Hoffman’s first resolution was “I will never permit professional zeal to carry me beyond the limits of sobriety and decorum, but bear in mind, with Sir Edward Coke, that ‘if a river swell beyond its banks, it loseth its own channel.’” 
  • In the Preamble to the Rules of Professional Conduct, Section 1 states that “A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” Section 9 indicates that the rules “include the lawyer’s obligation zealously to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.” 
  • Comment [1] to Rule 1.3 states that “[t]he lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved with courtesy and respect.”
  • Comment [4] to Rule 3.5(d) states that “The advocate’s function is to present evidence and argument so that the cause may be decided according to law.  Refraining from abusive or obstreperous conduct is a corollary of the advocate’s right to speak on behalf of litigants”
  • Rule 4.4(a) prohibits conduct that has no substantial purpose other than to embarrass, harass, or burden a third person.

Civility and professionalism aren’t inconsistent with our obligations.  They’re long baked into our professional responsibilities.

In addition, let’s remember that a lack of professionalism causes harm. Last year, I blogged about a California case in which a lawyer’s incivility factored into a decision to reduce a fee award. Here are some of the court’s statements:

  • “Attorney skill is a traditional touchstone for deciding whether to adjust a [fee]. Civility is an aspect of skill. Excellent lawyers deserve higher fees, and excellent lawyers are civil.”
  • “Civility is desirable in litigation, not only because it is ethically required for its own sake, but also because it is socially advantageous: it lowers the costs of dispute resolution. The American legal profession exists to help people resolve disputes cheaply, swiftly, fairly, and justly. Incivility between counsel is sand in the gears.”
  • “Seasoning a disagreement with avoidable irritants can turn a minor conflict into a costly and protracted war. All sides lose, as does the justice system, which must supervise the hostilities.
  • “By contrast, civility in litigation tends to be efficient by allowing disputants to focus on core disagreements and to minimize tangential distractions.

Most importantly, I am convinced a lack of professionalism harms our lawyers and their well-being. As we destigmatize help-seeking behavior, more and more lawyers are disclosing to me that they’re struggling with levels of stress and anxiety that verge on burnout. Many report that “other lawyers” are a major cause.

The lack of professionalism is not a victimless offense.

Further, as I recommit to promoting professionalism and civility, I want to respond to those who’ve suggested that my efforts squelch advocacy. They do no such thing, and I disagree with the premise of the suggestion.

In his final address to the nation, and referring to partisanship, President Washington said “[a] fire not  to be quenched, it demands a uniform vigilance to prevent its bursting into a flame, lest, instead of warming, it should consume.”  The same can be said for advocacy.

With clients and causes, work hard, with passion and vigor. Fight for rights and what is right. But don’t let the zeal rage out of control. Rather, keep in mind the last, but perhaps most important, of the VBA’s Guidelines of Professional Courtesy:

  • “Effective advocacy does not require antagonistic or obnoxious behavior. Lawyers should adhere to the higher standard of conduct which judges, fellow attorneys, clients, and the public may rightfully expect.”

Finally, I’ve been told “well, Mike, I have to be combative.  Otherwise, my client and the other side will think I’m weak.”

In his inaugural address, and referring to stakes far higher than are at play in most legal disputes, President Kennedy said:

  • Civility is not a sign of weakness, and sincerity is always subject to proof. Let us never negotiate out of fear, but let us never fear to negotiate. Let both sides explore what problems unite us instead of belaboring those problems which divide us.”

Professionalism is not weakness. Moreover, advocacy is made more effective by exploring common ground instead of belaboring division.

Having thought of the opportunities I’ve received, including the opportunity to follow the example set by others, I wonder if the occasion of this award might inspire those reading to recommit to professionalism and civility. The example we set might be more valuable than any advice we give, and there’s a chance that others might imitate us. 

Indeed, the possibility that they do reminds me Linda Klein’s statement at the beginning of her tenure as the president of the American Bar Association.  Quoting Mary Wortley Montagu, President Klein reminded us that “civility costs nothing, but buys everything.” 

In closing, remember that no act of professionalism or civility is too small or without impact. One of my favorite stories is the Starfish story.  It goes something like this:

Late in the day, a young child was on the beach.  Countless starfish had washed ashore and the tide was out.  One by one, the child returned starfish to the water. An older person noticed, and asked the child “what are you doing? It’s getting dark, a storm is coming, you need to get home, and there are so many starfish that you’re never going to make a difference.”  The child picked up a starfish, put it in the water, turned to the older person and said:

“I made a difference to that one.”

Professionalism is a choice.  Choosing it will be far more helpful in our quest to make a difference.

My thanks and gratitude to Judge Colleen Brown for nominating me, all who wrote in support of the nomination, those who spoke on my behalf at the ceremonies – Judge Beth Robinson, Chief Justice Paul Reiber, Judge Brown, Judge Geoff Crawford, Teri Corsones – and my family, friends, and colleagues who attended the events in New York and Montpelier.

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 consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

This week, the ABA Standing Committee on Ethics and Professional Responsibility issued an advisory opinion in which it concluded that a lawyer who includes a client on an electronic communication to opposing counsel has:

  • A.  not impliedly consented to a “reply all.”
  • B.  impliedly consented to “reply all.”

Question 2

Which does the Vermont rule treat different from the others. 

  • A.  a certified check issued by a federally insured bank.
  • B.  a check drawn on an IOLTA account of a Vermont licensed attorney that exceeds $25,000.
  • C.  a check issued by an insurance company that is licensed to do business in Vermont that exceeds $250,000.
  • D.  a personal check that exceeds $1,000.

Question 3

Lawyer received a letter from a former client who is not represented by counsel. In the letter, Former Client alleges that Lawyer committed malpractice.  Later, Lawyer agreed to pay, and Former Client agrees to accept, $X to resolve the claim.  By rule, before resolving the dispute, Lawyer must _______:

  • A.  Notify Disciplinary Counsel.
  • B.  Confirm the agreement in a writing that signed by the client.
  • C.  A & B.
  • D.  Advise Former Client in writing of the desirability of seeking independent legal counsel, and give Former Client a reasonable opportunity to do so.

Question 4

When representing a client, can a lawyer ask a person other than the client to refrain from voluntarily giving relevant information to another party?

  • A.  no.
  • B.  yes, if the person is a relative of the client, and the lawyer reasonably believes that the person’s interests will not be adversely affected by giving such information.
  • C.  yes, if the person is an employee or other agent of the client, and the lawyer reasonably believes that the person’s interests will not be adversely affected by giving such information.
  • D.  B and C.

Question 5

In July, the State Bar of California disbarred Tom Girardi.  Earlier this week, the State Bar released a letter in which it revealed that, over the past 40 years, it had opened 205 investigations into Girardi and that “approximately 120 involved allegations related to trust account violations.” According to a news report:

  • “The State Bar noted that the handling of Tom’s disbarment ‘brought to light serious failures in the State Bar’s attorney discipline system’ which ‘have contributed to a lack of confidence in the State Bar’s ability to carry out our core responsibility of protecting the public.’

In 1990s, Girardi helped a law clerk and residents of a California town who had complained about contaminated drinking water settle a case in which Pacific Gas & Electric agreed to pay $333 million.  

Name the movie that the case inspired.

Bonus: in 2000, Girardi, then 60, married his third wife, then 28. Name the tv show in which both she starred and that he made several appearances.

Monday Morning Honors #265

Happy Halloween!

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

How about one last look at The First Brother pulling off history’s greatest performance as spinach (with kudos to my mom for the concept):

And, special kudos to Cary Dube.  Cary and her mom, Priscilla, are practicing members of the Vermont bar.  Cary was the only brave soul to share a pic from a Halloween past!  Here are the Dubes:

Honor Roll

  • Karen Allen, Karen Allen Law
  • Matthew Anderson, Pratt Vreelend Kennelly White
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, UIC School of Law
  • Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labor
  • Heather Devine, Tarrant Gillies Shems
  • Cary Dube, Bergeron Fitzpatrick & Paradis
  • Benjamin Gould, Paul Frank + Collins
  • Robert Grundstein
  • Glenn Jarrett, Jarrett/Hoyt
  • Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
  • Jeanne Kennedy, Mother (of the) Blogger, JB Kennedy Associates
  • John T. Leddy, McNeil, Leddy, Sheehan
  • Pam Loginsky, Deputy Prosecuting Attorney, Pierce County, Tacoma, WA
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeffrey Messina, Messina Law
  • Hal Miller, Hawaii Agency Underwriting Counsel, First American Title Insurance
  • Herb Ogden
  • James Remsen, Master Planner, Parker & Hannafin
  • Keith Roberts, Darby Kolter & Roberts
  • Robyn Sweet, Risk Management Specialist, Rutland Regional Medical Center
  • Jason Warfield, J.D.

Answers

Question 1

This week is National Celebrate Pro Bono Week.  Citing one of the 7Cs of Legal Ethics, lawyers often express reluctance to do pro bono work. There’s no need to fear! Indeed, here’s one of the comments to the rule that sets out the duty that lawyers worry that they might violate if they take a pro bono case in a practice area with which they’re not too familiar.  Which C?

  • “A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar.  Some important legal skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study.”

COMPETENCE.  V.R.P.C. 1.1, Cmt. [2].  The VBA offers LOADS of practice area training that is aimed at lawyers looking to do pro bono work.  Much of the training is available via archived video.  For more information, contact Kim Velk or Mary Ashcroft.

Question 2

Which is in a different rule than the others?

  •  A.  Same or substantially related matter.
  •  B.  Materially adverse interests.
  •  C.  Informed consent, confirmed in writing.
  • D.  Remonstrate with the client and, if necessary, take reasonable remedial measures.

Options A, B, C are part of V.R.Pr.C. 1.9(a)’s standard for former client conflicts.  D, the correct answer, is what V.R.Pr.C. requires of a lawyer when the lawyer comes to know the falsity of material evidence offered by the lawyer, the lawyer’s client, or a witness called by the lawyer.

Question 3

There’s a rule that includes an exception for when a person is seeking a second opinion.  The rule addresses _______:

  • A.  conflicts of interest.
  • B.  the situations in which a fee agreement must be reduced to writing.
  • C.  communicating with a represented person.
  • D.  advertising & client solicitation.

V.R.Pr.C. 4.2 prohibits a lawyer from communicating with a represented person on the subject of the representation.  There is an exception when the represented person contacts a lawyer who is not otherwise involved in the matter for a second opinion.

Question 4

Attorney referred Client to Lawyer.  Lawyer completed the representation and billed Client.  Lawyer and Attorney have agreed that, given the referral, Lawyer will share the fee with Attorney.  What else must happen?

  • A.   The overall fee must be reasonable, and client must agree in writing to the division.
  • B.   Lawyer and Attorney must divide the fee in proportion to services rendered, or each must have agreed to accept joint responsibility for the representation.”
  • C.   A & B.  V.R.Pr.C. 1.5(e) and last week’s post Thinking about a referral fee? Think “fee division” instead.
  • D.  Neither A nor B.

Question 5

In 1993, Tom Hanks won the Academy Award for Best Actor for his performance in Philadelphia.  In the movies, Hanks’ character had a lawyer named Joe Miller.  The lawyer attended a Halloween party in which his “costume” was printouts of statutes taped to his work outfit.

The character who played the lawyer had previously won the Academy Award for Best Supporting Actor in a movie set during the Civil War and would later win the Academy Award for Best Actor for his portrayal of an unethical police officer.  In 2018, he was nominated for the Best Actor Oscar for a movie in which he played a lawyer who impermissibly disclosed confidential information related to the representation of a client in order to collect the award for providing information that would lead to the arrest of someone wanted by law enforcement.

Name the actor. Bonus: what was his Halloween costume in Philadelphia?

Denzel Washington played Attorney Joe Miller in Philadelphia.  For Halloween, he was a “law suit.”

Five for Friday #265 (and 5 Halloween Costumes)

Happy Friday!

Many thanks to all who reached out, especially those who made the trip to NYC.  Much appreciated!

So, it’s Halloween weekend. A lazy blogger might use the occasion to publish his third annual ranking of the Halloween candies.[1]

Not me!

Especially since my top 4 remain unchanged – $100 Grand, Peanut Butter Cup, Baby Ruth, Peanut M&M’s – and I don’t want my inbox flooded with messages of abject astonishment that (insert an inferior candy bar here) wasn’t included.

No, instead, I’m marking the holiday with a different type of list: some of my mom’s favorite Halloween pictures of The First Brother and me when we were kids.  Feel free to join the fun by sending pictures Halloween of younger you.  Word to the (un)wise: submissions will be published.

My mom sent me many pics. Those that follow reflect conversations we had about this project, my desire not to have certain images in the public domain, and the fact that I’m the Chief Justice of a one-person court that has ultimate editorial control over these pages.  Without further ado, let’s hop in a time machine and travel to the early 1970s and, for one, the late 60s!

#5

This clown is The First Brother when he was in 1st grade. I include it only to compare to later pictures that will make clear The First Brother’s capacity to pull off a variety of roles.

#4

This is me as a pirate. I was in 3rd grade.  Apparently third graders of the day believed that pirates looked more intimidating when biting their lips.  Also, in that I wore it over my sweater, I assume the vest conveyed some sort of rank among my fellow buccaneers. The sweater must’ve been one of my favorites. I also wore it for that year’s school picture.

#3

This is The First Brother when he was 6.  Are you telling me that detective wasn’t going to solve the case??? Come on! He’s a perfect combination of Hercule Poirot, Inspecter Clouseau, and James Bond.  No wonder he went on to read every book in The Hardy Boys series in a single summer.

#2

This is me when I was 15 months old.  My mom sewed orange crepe paper to my snowsuit and passed me off as a pumpkin. Judging from my expression, I can only surmise I’d just looked in the mirror and noticed the hat.

#1

This is the one that The First Brother and I will always remember. I’m 5, he’s 3.  I’m in a sailor suit that a neighbor had outgrown.  Apparently an oft forgotten aspect of the 70s is the decade’s active secondary market for children’s sailor suits. Anyhow, it’s not me that has this Halloween seared in our memories. 

My brother is wearing his green snowsuit.  It was actually green, no crepe paper required. My mother wrote “spinach” on his forehead. 

We trick-or-treated as Popeye and his trusty can of spinach.

Happy Halloween! 

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 consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

This week is National Celebrate Pro Bono Week.  Citing one of the 7Cs of Legal Ethics, lawyers often express reluctance to do pro bono work. There’s no need to fear! Indeed, here’s one of the comments to the rule that sets out the duty that lawyers worry that they might violate if they take a pro bono case in a practice area with which they’re not too familiar.  Which C?

  • “A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar.  Some important legal skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study.”

Question 2

Which is in a different rule than the others?

  •  A.  Same or substantially related matter.
  •  B.  Materially adverse interests.
  •  C.  Informed consent, confirmed in writing.
  • D.  Remonstrate with the client and, if necessary, take reasonable remedial measures.

Question 3

There’s a rule that includes an exception for when a person is seeking a second opinion.  The rule addresses _______:

  • A.  conflicts of interest.
  • B.  the situations in which a fee agreement must be reduced to writing.
  • C.  communicating with a represented person.
  • D.  advertising & client solicitation.

Question 4

Attorney referred Client to Lawyer.  Lawyer completed the representation and billed Client.  Lawyer and Attorney have agreed that, given the referral, Lawyer will share the fee with Attorney.  What else must happen?

  • A.   The overall fee must be reasonable, and client must agree in writing to the division.
  • B.   Lawyer and Attorney must divide the fee in proportion to services rendered, or each must have agreed to accept joint responsibility for the representation.”
  • C.   A & B.
  • D.  Neither A nor B.

Question 5

My first year in a law school, one of my friends showed up for a Halloween party. As best as I could figure, he was dressed as a Victoria’s Secret model. Then, he explained it to me. He’d written “Id,” “Ego,” and “Superego” on his garment. He was a Freudian Slip.

In 1993, Tom Hanks won the Academy Award for Best Actor for his performance in Philadelphia.  In the movies, Hanks’ character had a lawyer named Joe Miller.  The lawyer attended a Halloween party in which his “costume” was printouts of statutes taped to his work outfit.

The character who played the lawyer had previously won the Academy Award for Best Supporting Actor in a movie set during the Civil War and would later win the Academy Award for Best Actor for his portrayal of an unethical police officer.  In 2018, he was nominated for the Best Actor Oscar for a movie in which he played a lawyer who impermissibly disclosed confidential information related to the representation of a client in order to collect the award for providing information that would lead to the arrest of someone wanted by law enforcement.

Name the actor. BONUS – what was his Halloween costume in Philadelphia? The one where he taped printouts of statutes to clothes.


[1] 2020’s flawed rankings are here.  2021’s atonement is here.