Monday Morning Answers: #123

Welcome to Monday!

If you’re reading this, your WiFi didn’t melt!  Small victories are still victories!

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

Honor Roll

Answers

Question 1

The phrase “in the same or a substantially related matter” is most often used in connection with a rule on:

  • A.  conflicts.  See, Rule 1.9(a).
  • B.  advertising
  • C.  trust accounting
  • D.  sharing fees with a lawyer in another firm

Question 2

Which doesn’t belong with the others?

  • A.  Don’t state or imply that you’re disinterested
  • B.  Don’t contact her unless the clerk has certified that her term is complete
  • C.  If she misunderstands your role, correct the misunderstanding.
  • D.  If her interests are likely to conflict with your client’s, don’t give her any legal advice other than the advice to secure counsel.

B is part of Rule 3.5 and refers to contacting jurors.  A, B, & D are part of Rule 4.3, the rule that applies when a lawyer deals with an unrepresented person.  

Question 3

Client sued Lawyer for malpractice.  Lawyer offered to settle the claim.  The offer included (1) a monetary payment to Client; and (2) an agreement not to handle any cases of the type Lawyer handled for Client.

True or False.

The settlement offer violates the Rules of Professional Conduct.

True: see, Rule 5.6(b).

Question 4

Yesterday, Lawyer received a letter indicating that Disciplinary Counsel had selected Lawyer for a “compliance exam.”   Compliance with what?

  • A.   the CLE requirements
  • B.   the trust accounting rules.  See, Rule 1.15A(b)
  • C.  the rule on malpractice insurance
  • D.  the rule that requires reasonable precautions against unauthorized access to electronically stored information

Question 5

Speaking of lawyers and soccer, who doesn’t belong with the others?

  • A. Vincent Gambini
  • B.  Jerry Callo
  • C.  Jerry Gallo
  • D.  Cristiano Ronaldo

Ronaldo is one of the best soccer players in the world.  He’s the star of the Portuguese national team.  On Saturday, Portugal lost to Uruguay in the round of 16 in the World Cup.  The other 3 – Gambini, Callo, and Gallo – are characters or people mentioned in My Cousin Vinny.    

You know, Jerry Gallo, the big attorney.

“Jerry Gallo’s dead!”

Kudos to Penny Benelli for getting the “most” correct answer!

See the source image

 

 

 

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Five for Friday #123: The World Cup

Welcome to #123!

Late post today.  Sorry about that! Did you think I retired? I didn’t.  That was the other Kennedy.  As Shaggy say, it wasn’t me.

Anyhow, as for 1-2-3, I didn’t feel like writing about the Jackson 5 song.  So, instead of focusing on the number, I’m tying this week’s intro to the World Cup.  And, to do that, I don’t think there’s anyone more suited to discuss the A-B-C’s of legal ethics and soccer than Vermont’s own Scott Mapes.  Scott is a lawyer and long-time high school soccer coach.  He was kind enough to respond to my pathetic attempts to frame soccer in terms of legal ethics.

And, as an aside, if there’s a lawyer who is more competent at gardening than Scott, I’d be shocked.  If his house isn’t on the home tour for flower gardens, it should be!

MK:  Scott – I often blog & speak about Rule 1.1 and a lawyer’s duty of competence.  Lately, some in the profession have expressed concern about declining competence.  In soccer, two of the world’s most competent national teams – Italy & Germany – didn’t make it to the knock out stage at the World Cup.  Italy didn’t even qualify for the tournament!  Does that reflect a decline in those nation’s competence or, perhaps, is the rest of the world that much better now?  In other words, in the soccer world, is it akin to there being more good lawyers than there used to be?

Scott:  You are spot on……the rest of the world (but perhaps USA) are getting much better.   Look at Saudi Arabia, Egypt, Morocco, Iran, Tunisia, Nigeria, Senegal, Korea and ICELAND – some of those countries do not even have professional leagues let alone stadiums!   Germany is out because they could not score.

Mike: Not scoring is not competent!  Ok, conflicts of interest are always a hot topic in legal ethics.  Speaking of conflicts, I drive by your house on my way home from work.  I’ve lost track of the number of nation’s flags I’ve seen flying on your porch. Who exactly are you rooting for??

Scott:  Well it was Germany – but now I am rooting for great games!

Mike:  For the most part, the games have been great.  But, an author just released a book that details corruption at the highest levels of FIFA, soccer’s governing body.  The scandal, coupled with reports that FIFA and Russia colluded to bring the World Cup to Russia and, again, to cover-up doping by Russian soccer players, leaves me wondering: as great as the product is on the turf, are you bothered by the perception that it’s run by a bunch of unethical folks who should face the equivalent of disbarment? Or, is it like anything else: show me billions of dollars in play and I’ll show you unethical conduct?

Scott: Money, unfortunately, talks. FIFA is the largest sports organization in the world. It is, and has been, above any country’s ability to fully govern.  That said, FIFA is the only entity to carry out two World Cups every 4 years (men’s and women’s).  No other entity could do it.  I think great attention is being paid to the ethical concerns we all hear about.  But for a few players running afoul with potential doping, few at this high a level do.  Mainly due to the risk of being banned.

Mike: Sanctions are a deterrent to misconduct! Ok.  The Rules of Professional Conduct include a rule that prohibits conduct that is discourteous, undignified, and degrading to a tribunal.  Some soccer players seem ready to win Academy Awards for their antics in response to the slightest touch from an opponent. I think Neymar barrel-rolled 8 or 9 times yesterday after being tripped.  Thoughts on such conduct?

Scott:  First and foremost, the “antics” you point out are about toughest aspect of the game to regulate or officiate.  I can tell you it hurts getting stepped on by cleats, kicked in the shins or ankle (ouch) where there is NO protection, or getting bounced when you least expect it – so many of these situations are true displays of great discomfort – yes short-lived – but nonetheless painful.  That said, there are also an equal number of situations where players seek to bait a call with their “antics”.  If in the referee’s opinion that is what is happening, the player risks verbal admonishment, a yellow card for unsporting behavior, or potential a red if deemed an attempt to truly mislead the outcome the game.  Aside from maybe a shin guard, these athletes are hurling themselves at ball and opposing players (it is a contact sport) at full speed while having to run 10-15 kilometers over 90 minutes.  You can appreciate these are feats few athletes in most other teams sports endure, perhaps aside from basketball.

Mike: Speaking of yellow cards, Japan & Senegal tied for 2nd in their group.  Japan advanced, because it had fewer yellow cards than Senegal. Is that like winning a trial because the court granted a higher percentage of your objections than were granted for the other side?

Scott: I would look at it like this: in the soccer tie breaker world,what aside from wins, goals for, and goals against should be rewarded? Fewer “cards” is always a compliment.  Therefore, if a tie-break is needed, it seems appropriate.  The analogy I would make in the legal arena is, say, a jury that tends to side with the arguments, demeanor and presence of one attorney over the other. It’s that kind of intangible where we reward good, positive, and redeeming behavior.

Mike: Good point.  So, on positive & redeeming behavior, like me, you played & coached.  When I coached high school basketball, we fought like hell to beat each other’s teams, but rival coaches were (and are) among my closest friends.  Once the final horn sounded, we’d be breaking bread together, hanging out together.  A few weeks ago, I blogged that I couldn’t imagine my life without the people in it, most of whom I know through coaching. I’m not positive, but I’m fairly certain that you were the same way with the guys you coached against.  Lawyers don’t seem to treat each other the same way.  Could we, as lawyers, learn something from high school coaches?

Scott: OMG ABSOLUTELY!  In my 18 years at BHS (12 as assistant and the last 6 as head coach) I had the most awesome pleasure of coaching against some of my life long and dearest friends, who I i had only been introduced to through soccer.  To this day, while all are mostly out of the game, we still hold “Coaches Meetings”.  Dan Shepardson was at CVU (teammate from Norwich); Dave Bahrenburg was at Colchester (best friend I was his assistant at BHS); David “Moon” Martin at SBHS (he was my assistant for my last 6 years at BHS varsity); Chris Conte (a teammate in high school) was at Enosuburg; Jim Hubbard (a teammate in high school) at MVU. We all played together for years on the same men’s league team.  And for the most part I have not found or experienced any of that kind of camaraderie in the legal profession.

Mike: Harder to deal with: the client who non-stop calls/complains, or, the parent who non-stop emails/complains?

Scott: As you probably know, the answer lies in 1) your ability to communicate and 2) your ability to communicate.  If you are good at it, you will likely received fewer of those calls/emails/complaints. I returned to coaching at BHS the last two years at the JV level.  Last year,  I carried 29 kids, fashioned a JV A team and a JV B team, and I had every parent and kid remarking how positive the experience was for them mostly as a result of my communications being frequent, and repeating what everyone needed to know as far as team philosophy, team rules, and expectations.

Mike:  Exactly! Set and manage clear expectations!  Ok, last question: understanding that I just linked to a blog that suggests that lawyers should not predict specific outcomes for clients, but should manage expectations, who do you predict will win the World Cup?

Scott: Belgium, Spain, Croatia or France.

Mike: Good job! I’ll expect the winner to come from that group!  Thank you Scott!

Onto the quiz!

RULES

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

Question 1

The phrase “in the same or a substantially related matter” is most often used in connection with a rule on:

  • A.  conflicts
  • B.  advertising
  • C.  trust accounting
  • D.  sharing fees with a lawyer in another firm

Question 2

Which doesn’t belong with the others?

  • A.  Don’t state or imply that you’re disinterested
  • B.  Don’t contact her unless the clerk has certified that her term is complete
  • C.  If she misunderstands your role, correct the misunderstanding.
  • D.  If her interests are likely to conflict with your client’s, don’t give her any legal advice other than the advice to secure counsel.

Question 3

Client sued Lawyer for malpractice.  Lawyer offered to settle the claim.  The offer included (1) a monetary payment to Client; and (2) an agreement not to handle any cases of the type Lawyer handled for Client.

True or False.

The settlement offer violates the Rules of Professional Conduct.

Question 4

Yesterday, Lawyer received a letter indicating that Disciplinary Counsel had selected Lawyer for a “compliance exam.”   Compliance with what?

  • A.   the CLE requirements
  • B.   the trust accounting rules
  • C.  the rule on malpractice insurance
  • D.  the rule that requires reasonable precautions against unauthorized access to electronically stored information

Question 5

Speaking of lawyers and soccer, who doesn’t belong with the others?

  • A. Vincent Gambini
  • B.  Jerry Callo
  • C.  Jerry Gallo
  • D.  Cristiano Ronaldo

 

Image result for world cup logo

 

 

 

Five for Friday #122

Welcome to #122!

I’ve got nothing clever to tie to the number 122.  However, breaking it into 12 & 2, I’ve got something to say.

Counting this weekend, 12 weekends gets us to September 7.  That’s 4 days after Labor Day.

2 months from today is August 22nd.  School will be about to start.  Area high schools’ fall sports team will have started practice.  The Champlain Valley Fair, the traditional end of summer in Chittenden County, will be 2 days from starting.

My message: don’t let 12 and 2 go by without doing something non-lawyerly.  Make time for yourself.  Make time for your family.  Make time for what matters.  You never know, the time you make for what matters might just earn you a mention in this blog.

How so? Here’s how.

Daron Raleigh is a deputy state’s attorney in Rutland County.  A few weekends ago, Daron Raleigh got out and did something non-lawyerly.  She ran the Crowley Brothers Half-Marathon.  Not only did she run it, she won it!  Now that’s what I’d call making time for what matters AND satisfying the duty of competence! Great job Daron!

#WellLawyer

Onto the quiz!

RULES

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

Question 1

Per a particular rule, Lawyer takes direction from Lawyer’s client, acting through client’s duly authorized constituents.

Thus, which is most accurate? Lawyer represents:

  • A.   The defendant in a criminal case
  • B.   A juvenile defendant in a criminal case
  • C.   An estate
  • D.   An organization

Question 2

When it comes to lawyer advertising, which is most accurate in Vermont?

  • A.   a lawyer may not advertise prior results.
  • B.   a truthful report of prior results is not a violation of the rules.
  • C.   a truthful report of prior results might violate the rules if it presented so as to lead a reasonable person to form an unjustified expectation that the similar results could be obtained in a different matter.
  • D.   citing the First Amendment, the PRB has recommended that the Court repeal the advertising rules

Question 3

This morning, Lawyer and Client agreed to a nonrefundable flat fee.  Client advanced the fee to Lawyer.  Lawyer has yet to do any work for Client.

What additional information do you need in order to determine which account – trust or operating – Lawyer must deposit the fee?

  • A.   the amount of the fee.
  • B.   the type of case.
  • C.   whether the agreement was (or soon will be) confirmed in a writing that describes the scope of the services that Client will receive.
  • D.  All of the above.

Question 4

Attorney called me with an inquiry. I listened, then I asked, “will the harm be to the actor or to someone else?”  What specific issue did Attorney call to discuss?

  • A.  Disclosing confidential information related to the representation of a client.
  • B.  Reporting another lawyer’s misconduct.
  • C.  Reporting a judge’s misconduct.
  • D.  Whether to allow a client to testify in a criminal case.

Question 5

The Lawyer and Uncle Jack are characters in a television show.  It is the longest running  live-action sitcom in American television history.

Both The Lawyer and Uncle Jack have ethical issues. Uncle Jack is flat out incompetent.  So, his nephew, Charlie, often pretends to be lawyer, assuming he can do better than his uncle.  When pretending to be a Lawyer, Charlie specializes in bird law. He and The Gang spend much of their time at Paddy’s Pub.

In one episode, Charlie & The Gang went to The Lawyer for help getting patents for things they’d invented. The Lawyer tricked them into signing a contract that gave him all of their profits and included a restraining order against them.  To try to get out of the contract, Mac ate it.   The Lawyer, however, had made 100s of extra copies.

That same season, Charlie challenged The Lawyer to a duel.  The Lawyer accepted.

Lawyer spends much of his time representing the estate of Dennis & Sweet Dee’s grandmother.  However, and speaking of bird-law, The Lawyer’s eye was gouged out at a recent trial.  Gouged out by a bird that excaped from under his client’s father’s hat.

Name the tv show.

the-quiz

 

 

 

Monday Morning Answers #121

Welcome to Monday! Looks like summer turned on the heat!

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

Image may contain: 2 people, including Norman Lemieux, people smiling, outdoor

Honor Roll

  • Karen Allen, Esq.
  • Matthew AndersonPratt Vreeland Kennelly & White
  • Leslie Black, Black & Govoni
  • Rich Cassidy, Esq.
  • Robert Grundstein, Esq.
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Mark Kennedy, Dad
  • Scott Mapes, Esq.
  • Johsua Martin, Green Mountain Legal
  • Lon McClintockMcClintock Law Offices
  • Jeff MessinaBergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Jody Racht, Assistant Attorney General, VT. Department of Children & Families
  • Allison Wannop, Law Clerk, Vermont Superior Court
  • Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

It’s likely a violation of the rules for a lawyer to:

  • A.  use an electronic trust accounting system
  • B.  self-represent in a divorce
  • C. condition settlement of a malpractice claim on a former client’s agreement not to file a disciplinary complaint against the lawyer.
  • D.  while representing a client who is adverse to a represented organization, communicate with former employees of the organization without the consent of the organization’s lawyer.

For more, see my post Disciplinary Complaints: File & Let File

Question 2

True or False.

The rule on trial publicity only applies in criminal cases.

FALSE.  Rule 3.6 applies to any lawyer who “is participating or has participated in the investigation or litigation of a matter.”

Question 3

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

“The rule authorizes deposits that are for the sole purpose of paying service charges or fees, but only in an amount necessary to pay those charges and fees.”

What specific issue did Lawyer call to discuss?

The trust account rules. Specifically, Rule 1.15(b) and depositing the lawyer’s own funds into trust.

Question 4

Which is most accurate?

A frivolous discovery request is a violation of the Rules of Professional Conduct.

  • A.  True.  See, Rule 3.4(d)
  • B.  False. The trial courts have exclusive jurisdiction over discovery issues.
  • C.  Only if the lawyer is given a reasonable opportunity to withdraw the request and chooses not to.
  • D.  Generally true, but it’s not a violation if the client, upon being advised by the lawyer that the request is frivolous, insists that the lawyer make the request.

Question 5

There’s a lawyer who has been in the news an awful lot lately.  Recently, the intense media coverage of the lawyer and his famous client resulted in reports about the lawyer’s firm’s bankruptcy proceeding.  Per a headline in the Los Angeles Times, the lawyer “tested legal boundaries as his firm maneuvered into bankruptcy.”

  • Name the lawyer
  • Name the famous client who has made the lawyer the subject of intense media coverage over the past several months

Michael Avenatti.   Stephanie A. Clifford (aka “Stormy Daniels”)

The Los Angeles Time piece on Avenatti’s bankruptcy is here.

Image result for avenatti daniels

Five for Friday #121

Welcome to #121!

So, 121 is a palindromic number.  You know what else is a palindrome?  The word “dad.”  So, on Father’s Day weekend, I thought I’d share a few thoughts about my dad, Mark Kennedy.

Many of my readers know my mom.  Because she’s awesome. And, lawyers being lawyers, they like to get to know awesome people.

Not as many readers know my dad.  He’s awesome too.  In 1992, he re-married and moved south.  Had he stayed, readers would’ve tried to get to know him as well.

My dad grew up in Burlington’s Old North End under the watchful eye of Aunt Kate.  His parents bounced around the neighborhood from apartment to apartment.  Every apartment that my dad lived in as a kid is within .25 miles of my office.

My dad went to Cathedral High School.  For those of you who don’t know, Cathedral is what Rice used to be called.  It was on the corner of Pearl & St. Paul, a site that is now the state garage where I park for work.

After graduating, my dad enrolled at St. Michael’s.  He walked to and from class.  My grandparents didn’t have much.  Money ran dry after my dad’s sophomore year. So, he joined the Army, served for a few years in Germany, then returned to Burlington to finish up at St. Mike’s.

My dad’s first job was as a teacher in Essex.  Eventually, he became the vice-principal at Shelburne Middle School, then the principal at Camel’s Hump Middle School.  When I was a 6th grader at South Burlington Middle School, the principal left.  So, the district hired a new guy: my dad.

Some might say that it’d stink to have your dad be your principal.  Au contraire.  It works out quite nicely when the principal understands all-too-well the perils of reporting alleged misconduct to a particular student’s mom.

Anyhow, long story short, in 1992, my dad married Jane Ramsey.  At the time, Jane lived in Yorktown, Virginia.  My dad moved down there, spent 10 years as the vice-principal at Yorktown’s Bruton High School, then retired. Now, he and Jane live in Flat Rock, North Carolina, a small town about 25 miles southwest of Asheville.

Thinking about my dad for this post, I was struck by a few things.

First, it’s hard to describe the essence of a person.  Not so much with my dad.  He might disagree, but to me, he lives his life by two rules: (1) he’s kind to everyone; and (2) he thinks before he speaks.  The world, and our profession, could use more people with the same approach.

Next, I was struck by how much of myself I can trace back to my dad & his influence.  This blog & my CLE presentations are a perfect example.  Besides legal ethics, what do I mention most?   Sports, running, and coaching basketball.

My dad introduced my brother & I to sports.  He played sports with us. He watched sports with us.  He taught us about sports.  He took us to Expos and Red Sox games.  He went to every single one of our games and was always supportive.

As for running, I was the last in my family to the sport.  I didn’t start running until I was 40.  My brother was a star runner at SBHS and helped lead his team to the state championship as a senior.  The original Kennedy to run? My dad.  He ran track at Cathedral (100, 200, and relay) and helped lead his team to the state championship as a senior.  My first coach when I finally started to run?  My dad.

By the way, my dad still runs.  Just a few years ago he dominated his age group at the Asheville Turkey Trot:

IMG_0445

Finally, coaching basketball. Not much has influenced my life more than my career as a high school basketball coach.  I honestly cannot imagine my life without my core group of friends, every single one of whom I met thru coaching.

Way back when, my dad was a basketball coach. He coached 8th grade CYO teams for Cathedral, helping to develop many players who went on to win state championships at Rice.

More importantly to me, the only reason I got into coaching was because my high school coach asked me to work as an assistant after I graduated.  It’s an opportunity that, really, was only available to me because of my dad.

You see, when I was a junior in high school, my basketball team had a scrimmage.  The same coach who would later give me my start in coaching barely played me during the scrimmage.  That night, I told my dad I was going to quit.  He didn’t get mad, or tell me that I couldn’t quit.  Rather, he paused, and then told me that another option would be to go back and try to get better.  So, I did.  I played for the remainder of my high school career.

Had I quit, there is a 0% chance that my high school coach would’ve asked me to be an assistant.  A career that ended up meaning so much to me never would have started.  Thanks to kind, gentle, subtle nudging from my dad, it did.

Oh, and one more thing, but for my dad, I might not have gone to law school.

After I graduated from UVM, I had a job at a gas station on Shelburne Road. I loved it. I pumped gas, sold cigarettes & beer, made some money, and worked with some good high school friends.  After a few months, the boss made me “day manager,” paid me $325 per week, and let me work hours that would allow me to coach high school football & basketball.  Life was perfect.

One day, my dad stopped by.  Very calmly, he asked “you gonna change oil your whole life?”  At first, I was thrilled.  You see, the owners had let me change tires, but they knew better than to let me change oil.  So, I was ecstatic that my dad was so confident in me to see that, soon enough, I’d be entrusted to handle the “oil, lubes & filters.”

Then his point sank in.  So, I applied to law school.  And here I am.  And where I am is not only a great spot, but it’s a spot upon which I’d never have landed without my dad’s support.  So much that matters to me, so much that IS me, I owe to my dad.

Dad – on behalf of Patrick, we love you.  Happy Father’s Day!  We can’t wait to see you in D.C. in a few weeks for the Sox-Nationals games.  Until then, don’t waste your time looking in the mail for a gift or card.  The fact remains, you raised 2 Irish sons for whom planning ahead isn’t a strong suit.

That being said, on Father’s Day, Patrick & I are heading to Lebanon, NH. I’m going to run a race. It’s sponsored by an Irish bar, and Patrick & I fully intend to stop at the bar after the race.  When we do, we’ll order 3 pints: 1 for Patrick, 1 for me, and 1 for you.

We’ll each drink our own, then half of yours.

As I said, you raised two Irish sons!

Onto the quiz!

RULES

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

Question 1

It’s likely a violation of the rules for a lawyer to:

  • A.  use an electronic trust accounting system
  • B.  self-represent in a divorce
  • C. condition settlement of a malpractice claim on a former client’s agreement not to file a disciplinary complaint against the lawyer.
  • D.  while representing a client who is adverse to a represented organization, communicate with former employees of the organization without the consent of the organization’s lawyer.

Question 2

True or False.

The rule on trial publicity only applies in criminal cases.

Question 3

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

“The rule authorizes deposits that are for the sole purpose of paying service charges or fees, but only in an amount necessary to pay those charges and fees.”

What specific issue did Lawyer call to discuss?

Question 4

Which is most accurate?

A frivolous discovery request is a violation of the Rules of Professional Conduct.

  • A.  True
  • B.  False. The trial courts have exclusive jurisdiction over discovery issues.
  • C.  Only if the lawyer is given a reasonable opportunity to withdraw the request and chooses not to.
  • D.  Generally true, but it’s not a violation if the client, upon being advised by the lawyer that the request is frivolous, insists that the lawyer make the request.

Question 5

There’s a lawyer who has been in the news an awful lot lately.  Recently, the intense media coverage of the lawyer and his famous client resulted in reports about the lawyer’s firm’s bankruptcy proceeding.  Per a headline in the Los Angeles Times, the lawyer “tested legal boundaries as his firm maneuvered into bankruptcy.”

  • Name the lawyer
  • Name the famous client who has made the lawyer the subject of intense media coverage over the past several months

 

 

 

 

 

 

 

Monday Morning Answers #120

Good morning! Welcome to Monday!

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

Honor Roll

Answers

Questions 1

Two things are missing from this list.  What are they?

  • free speech
  • free exercise of religion
  • right to petition the government for the redress of grievances
  • no establishment of religion

The language is from the First Amendment.  The missing items are:  freedom of the press, and right to peaceably assemble.

Question 2

Which came first?

  • A.  Voting age lowered to 18 (1971)
  • B.  Prohibition repealed (1933)
  • C.  Women given the right to vote – 1920

Question 3

In October, the VBA’s Pro Bono Conference will include a “TED-Talk” on due process & municipal boards.  The phrase “due process” appears in two amendments.  Which two?

  • A.   1st and 5th
  • B.   5th and  8th
  • C.   5th and 14th
  • D.   8th and 14th

Question 4

Delaware was the 1st state to ratify the Constitution.  Very recently, and in response to a U.S. Supreme Court decision that involves states’ rights, Delaware became the 2nd state to allow what?

Commerical Sports Betting.  The decision was Murphy v. NCAA.  The New York Times covered it here.  The over/under “correct answers” for this question was “67% of respondents.”  It went over.

Question 5 & Bonus

Thaddeus Stevens was born in Vermont.  He practiced law in Pennsylvania and, eventually, was elected to the U.S. House of Representatives.  In Congress, Stevens played a critical role in the drafting & passage of what has been called both a “mini-Constitution” and the Constitution’s most important amendment.

Which amendment? And, who played Stevens in the movie Lincoln?

The 14th Amendment.  Last year, the ABA Journal posted: The 14th. A Civil War era amendment has become a mini-constitution for modern times For a bit on Stevens’ involvement, see this morning’s postthis morning’s post from Lancaster Online.

Tommy Lee Jones

Image result for images of thaddeus stevens

Five for Friday #120

Welcome to #120!

Very simply – I’ve got nothing for you on 120.  Couldn’t find a way to connect this intro to the number.  I tried.  I failed.  But, in the process, I learned a few things.

First, today is Kanye’s birthday!  As some of you might know, I’ve often used Kanye in my pub quizzes.  Not to mention, thinking of Kanye, I was reminded of one of my favorite albums:  Late Registration.  

And, Late Registration reminded me that some of you have yet to renew your law licenses.  For information on how to renew, click here.  Questions? E-mail Andy Strauss.  Andy is the Licensing Attorney.

Don’t be late!

Happy Birthday Kanye!

Second, on this date in 1789, James Madison introduced the Bill of Rights.  Lately, I’ve included the Constitution in several of my seminars.  Over the past few years, the Vermont Supreme Court and the VBA have done a great job promoting civics, and I think it’s important for lawyers to have, at least, a basic understanding of the Constitution.

Anyhow, that’s all I’ve got for you today. No tie, clever or otherwise, to 120.  Just Happy Birthday shoutouts to Kanye & the introduction of the Bill of Rights.

Onto the quiz!

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

Questions 1

Two things are missing from this list.  What are they?

  • free speech
  • free exercise of religion
  • right to petition the government for the redress of grievances
  • no establishment of religion

Question 2

Which came first?

  • A.  Voting age lowered to 18
  • B.  Prohibition repealed
  • C.  Women given the right to vote

Question 3

In October, the VBA’s Pro Bono Conference will include a “TED-Talk” on due process & municipal boards.  The phrase “due process” appears in two amendments.  Which two?

  • A.   1st and 5th
  • B.   5th and  8th
  • C.   5th and 14th
  • D.   8th and 14th

Question 4

Delaware was the 1st state to ratify the Constitution.  Very recently, and in response to a U.S. Supreme Court decision that involves states’ rights, Delaware became the 2nd state to allow what?

Question 5 & Bonus

Thaddeus Stevens was born in Vermont.  He practiced law in Pennsylvania and, eventually, was elected to the U.S. House of Representatives.  In Congress, Stevens played a critical role in the drafting & passage of what has been called both a “mini-Constitution” and the Constitution’s most important amendment.

Which amendment? And, who played Stevens in the movie Lincoln?

Image result for images of thaddeus stevens

 

Monday Morning Answers: #119

Welcome to Monday!

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

Honor Roll

Answers

Question 1

Lawyer used to represent Client.   Per the Rules of Professional Conduct, which situation is different from the others?

  • A.  Client files disciplinary complaint against Lawyer.
  • B.  Client sues Lawyer for malpractice.
  • C.  Client posts negative online review about Lawyer.
  • D.  Client files petition for post-conviction relief alleging that Lawyer failed to provide effective assistance of counsel.

Rule 1.6(c)(3) permits but does not require lawyers to disclose otherwise confidential information “to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client . . . [or] to respond to allegations in any proceeding concerning the lawyer’s representation of the client.” Per Comment [12], the rule can “arise in a civil, criminal, disciplinary, or other proceeding.”

A, B, and D are “controversies” or “proceedings” that trigger the rule. At the end of this post you’ll see a digest of cases & opinions that make clear that a negative online review is not a “controversy” or “proceeding” for the purposes of the rule.  

Caveat: any disclosure made pursuant to the rule should be limited to respond only to the specific controversy or allegation, and, if made in court, should include reasonable efforts to limit access to the information to people who need to know. Comment [14].

Finally, as noted by ABA Formal Opinion 10-456, a criminal defense lawyer should raise, or give the former client an opportunity to raise, all non-frivolous arguments against waiving the attorney-client privilege.

Question 2

Lawyer called me with an inquiry. I listened, then replied:  “I disagree. I wouldn’t call without permission. The rule applies to ‘matters’  Litigation doesn’t have to be pending for there to be a ‘matter.’ ”

What rule? (the topic of the rule is fine)

Communicating with a represented person.  See, Rule 4.2.

Question 3

Per the rule, 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)Comment [7] suggests that a non-relative cannot waive the protection of this rule.
  • B.     The client gives informed consent
  • C.     The client gives informed consent, confirmed in writing
  • D.    The client is given a reasonable opportunity to seek independent legal advice

Question 4

If you go to one of my seminars and hear me babbling about stuff that’s “onsite, online, and air-gap,” it’s most likely that I’m talking about:

  • A.  Trust accounting software
  • B.  The duty to safeguard electronically stored client information.  See: Ransomware & Cybersecurity Insurance
  • C.  Software that assists with conflict checks
  • D.  The duty of competence insofar as it relates to online legal research

Question 5

Speaking of frivolous claims . . .

Lionel Hutz is a fictional lawyer.  On behalf of a client, he sued The Frying Dutchman restaurant over its “All You Can Eat” offer.  Hutz referred to the offer as “the most blatant case of fraudulent advertising since my suit against the film The Never Ending Story.”

In another episode, the same client retains Hutz as a result of Hutz’s slogan “Cases won in 30 minutes or your pizza is free.”  Thinking he lost the case, Hutz gave the client and the client’s family a box of pizza.  The client’s wife pointed out that they won the case. Hutz responded that the pizza box was empty anyway.

How’d Hutz get a law license? I don’t know. But I do know that he claimed “I’ve attended Harvard, Yale, MIT, Oxford, the Sorbonne, and the Louvre.”

You might know the actor who voiced Hutz better for his roles on Saturday Night Liveand NewsRadio.

Name the client.

Homer Simpson

See the source image

 

Five for Friday #119

Welcome to #119!

What’s a nice pair of slacks cost?  You know, a pair you’d wear to court or to a bar association event.  Maybe $119?

Now, you’re probably asking yourself, “self, why is Mike asking such a question?”  Here’s why.

Last night, I couldn’t think of anything to tie to #119.  Then, I spotted this headline in the ABA Journal:

  • “DC ethics board seeks suspension for ex-judge’s ‘manifestly absurd’ claims                                                                in $67M lost-pants suit”

That’s right.  As reported by the ABA Journal and the Legal Profession Blog, a lawyer is facing a 90-day suspension for pursuing frivolous claims against a dry cleaner over a pair of pants.  I’d say he’s a candidate for a future edition of Was That Wrong?

The Report & Recommendation of the D.C. Board of Professional Responsibility is here. It is absolutely fascinating. So fascinating that I have serious reservations as to whether I can do it justice.  Alas, you might have to read it yourself.

Suffice to say, against the backdrop of a single pair of pants, the report provides an insightful analysis into Rule 3.1, the rule that prohibits lawyers from pursuing meritless claims.  In addition, it is the rare, if not only, disciplinary case to cite such monumental Supreme Court decisions as Brown v. Board of Education and Obergefell v. Hodges.  (p. 15).

Briefly, the former judge dropped off a pair of pants at a dry cleaner for alterations. Later that day, he returned and was given a pair of pants that, per the judge, weren’t his. So, he sued.  The suit morphed into a claim for $67 million in compensatory damages.

$67 million!!!  I spit out my coffee and I wasn’t even drinking any!!

At trial, the lawyer failed to establish that his pants had been lost or damaged.

The Board’s report details the various theories upon which the ex-jurist premised his claim.  Here’s my favorite:

  • “Respondent argued that a ‘Satisfaction Guaranteed’ sign required the
    cleaner to satisfy any customer’s wish, without limit. Thus, if the
    cleaner rejected a customer’s demand for anything – even a trillion
    dollars – as ‘satisfaction,’ the cleaner would be liable for damages.”

Give the report a read. Not only is it entertaining, it provides an excellent discussion of the difference between pushing for changes in the law and unethical conduct.  Indeed, per the report:

  • “Lawyers who seek to change or redefine the law act pursuant to one of the most noble traditions of our profession. We applaud that practice.  But that is not what Respondent did.”

All over a pair of pants.  That may or may not have been worth $119.

Onto the quiz!

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

Question 1

Lawyer used to represent Client.   Per the Rules of Professional Conduct, which situation is different from the others?

  • A.  Client files disciplinary complaint against Lawyer.
  • B.  Client sues Lawyer for malpractice.
  • C.  Client posts negative online review about Lawyer.
  • D.  Client files petition for post-conviction relief alleging that Lawyer failed to provide effective assistance of counsel.

Question 2

Lawyer called me with an inquiry. I listened, then replied:  “I disagree. I wouldn’t call without permission. The rule applies to ‘matters’  Litigation doesn’t have to be pending for there to be a ‘matter.’ ”

What rule? (the topic of the rule is fine)

Question 3

Per the rule, 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
  • D.    The client is given a reasonable opportunity to seek independent legal advice

Question 4

If you go to one of my seminars and hear me babbling about stuff that’s “onsite, online, and air-gap,” it’s most likely that I’m talking about:

  • A.  Trust accounting software
  • B.  The duty to safeguard electronically stored client information
  • C.  Software that assists with conflict checks
  • D.  The duty of competence insofar as it relates to online legal research

Question 5

Speaking of frivolous claims . . .

Lionel Hutz is a fictional lawyer.  On behalf of a client, he sued The Frying Dutchman restaurant over its “All You Can Eat” offer.  Hutz referred to the offer as “the most blatant case of fraudulent advertising since my suit against the film The Never Ending Story.”

In another episode, the same client retains Hutz as a result of Hutz’s slogan “Cases won in 30 minutes or your pizza is free.”  Thinking he lost the case, Hutz gave the client and the client’s family a box of pizza.  The client’s wife pointed out that they won the case. Hutz responded that the pizza box was empty anyway.

How’d Hutz get a law license? I don’t know. But I do know that he claimed “I’ve attended Harvard, Yale, MIT, Oxford, the Sorbonne, and the Louvre.”

You might know the actor who voiced Hutz better for his roles on Saturday Night Live and NewsRadio.

Name the client.

the-quiz