Monday Morning Honors #230

Welcome to Monday.

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

Honor Roll

• Karen Allen, Karen Allen Law
• Evan Barquist, Montroll, Backus & Oettinger
• Penny Benelli, Dakin & Benelli
• Andrew Delaney, Martin, Delaney & Ricci Law Group
• Glenn Jarrett, Jarrett & Luitjens
• John Leddy, McNeil Leddy & Sheahan
• Pam Loginsky, Washington Association of Prosecuting Attorneys
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Jeff Messina, Bergeron, Paradis, Fitzpatrick
• Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
• Herb Ogden, Esq.
• Keith Roberts, Darby Kolter & Nordle
• Jim Runcie, Ouimette & Runcie
• The Honorable John Valente, Vermont Superior Judge
• Zachary York, Legal Assistant, Sheehey Furlong & Behm

 Answers

Questions 1 & 2

Everyone knows I often mention the 7 Cs of Legal Ethics.  Earlier this week, I spoke with student-clinicians at Vermont Law School’s South Royalton Legal Clinic.  Their quiz on the 7 Cs included this question:

• “Let’s imagine that upon passing the bar you accept a job with a state agency. Your first assignment is familiar: it involves a matter you worked on while in the clinic.  Which 2 Cs of legal ethics jump to mind?”

The scenario is a variation of a scenario that can, and often does, confront any lawyer.  So, Friday readers have the same task: identify the 2 Cs of Legal Ethics implicated by the scenario.

Conflicts of Interest and Confidentiality

Question 3

 Your office employs Non-Lawyer.  In a new matter, Non-Lawyer has a conflict that, if Non-Lawyer were a lawyer, would prohibit Non-Lawyer from accepting the representation.  Which is most accurate?

• A. Non-Lawyer’s conflict is imputed to all lawyers in the office and the office must decline the representation.
• B. Non-Lawyer’s conflict is imputed, but only to any lawyer in the office who regularly supervises Non-Lawyer.
• C. A comment to one of the rules indicates that while Non-Lawyer’s conflict is not imputed to any lawyer in the office, Non-Lawyer should be screened from involvement in the new matter.  See, V.R.Pr.C. 1.10, Cmt. [4]
• D. Imputation depends on whether the matter is transactional or involves potential litigation.

Question 4

Last week, I presented to members of the Vermont Association for Justice.  My topic was professional responsibility and “The Golden Rule.”   What was the focus of the discussion?

• The rule that prohibits unreasonable fees.
• Trust Account Management/Bookkeeping
• The advertising rules.
• Closing arguments and the general prohibition on asking jurors to put themselves in the shoes of the victim or a witness.

Question 5

I often urge lawyers not to share any details of client matters, even if doing so doesn’t violate the prohibition on disclosing information relating to the representation of a client.

Reginald Haupt is a lawyer in Georgia.  In 1982, he was suspended from practice for 6 months for commingling.  In 2006, he was convicted of securities fraud and sentenced to 4 years in prison.

In the 1970’s, Haupt represented a client who owned a golf course that was frequented by members of the Chicago mafia.  Last month, Haupt made headlines by divulging to the media that, long ago, his former client told him that members of the Chicago mafia “delivered a package” to the golf course.  According to Haupt, the “package” was the dead body of a famous missing person who, to this day, remains buried on the course.

Whose body?

James Hoffa.    You can read the story at Golf Digest.

The 230th #fiveforfriday legal ethics quiz.

Welcome to the 230^th #fiveforfriday legal ethics quiz!

Today I’m going to relate both the date and the quiz number to a video of a friend’s performance at a dance recital last weekend.

Oh, wait.   That’s not what I’m going to do.  To my friend the dancer: you can now relax.  Unless you need defibrillation.

No, today I’m going to share a story of my foggy brain, bad math, and dashed hopes.

As most know, I spend much of the winter using this to bemoan the temperature.  I like it hot.  Which is exactly why I’ve loved most the past 10 days or so.

Yes, “most.”

I’ve gotta confess: yesterday morning felt cold.  I fully understand that it was 61.  Still, debating whether to wear a long sleeve shirt on my run, I texted Jenn, a friend who shares my thoughts on winter: “is it bad that I think it feels too chilly today?”  Jenn, who is not the dancer mentioned above, replied that it was not, that she felt the same way.

Flash forward to this morning.

Again, it was 61 as I prepared to run.  As breezy as yesterday, but much cloudier and bit damp, today’s debate wasn’t over sleeve length.  It was whether I should wear my gloves!  Don’t worry, I didn’t, and within a mile I had a nice sweat going and started to do what I do on most Friday morning runs: contemplate this column, and how to tie it to the date or quiz number.

Soon, it hit me: 84 is my perfect and preferred temperature. And what’s 84? It 23 + 61.  On this blog, that’s close enough to 230 and 6/11.

Then something else hit me: wouldn’t it be awesome if 61 Fahrenheit were 23 Celsius?!?!

Apparently, my brain was broken.

In fact, my brain can get foggy during long runs.  I used to think it took until approximately the 23-mile mark of a marathon. It’s at that point where, if I haven’t fueled correctly, my brain starts playing tricks on me.

Sometimes the tricks are minor: I struggle with basic math, having to work too hard to figure out if my current pace over the remaining miles will allow me to finish at or near my goad.

Other times, the tricks are a bit more serious. True story: around mile 23 of the 2011 Philadelphia Marathon, I wondered if I was lost.  Yes, despite running with hundreds of others who were also wearing race bibs, on a road lined with spectators, mile markers, and water stations, I thought I might be off the course.

Anyhow, given that today’s run was only 5.07 miles, the part of my brain that does math apparently fogs up much sooner than I thought.

Why do I say that?

Because the thought that 61 Fahrenheit might equal 23 Celsius struck me about 3 miles into a 5-mile run.  Yet it wasn’t until I got home, changed, made coffee, and used an online converter that I learned that, in fact, 61 F converts to 16 C.  Not even close!

I can hear you now:  don’t be so hard on yourself Mike! How were you supposed to know?

Because I grew up in Vermont!! And, when I grew up, they had these things called “basic competencies” that they started teaching us early and tracked throughout our academic careers.  Things like “giving directions” and “making change.”  Now that I think about it, pretty much all the things that we don’t need to do on our own these days.  Anyhow, “temperature conversion” might not have been one of the basic competencies.  Still, for a long, long time, I’ve known that when it comes to the temperature:

F ~ (9/5C + 32)

Being lazy, I’ve modified it to:

F ~ (2C + 32)

Still, this morning, I could not figure out on my own that (2*23 + 32) is nowhere close to 61.

Foggy brain. Bad math. Hopes dashed.

Onto the quiz!

Rules

• Open book, open search engine, text-a-friend.
• Exception:  Question 5.  We try to play that one honest.
• Unless stated otherwise, the Vermont Rules of Professional Conduct apply
• Team entries welcome, creative team names even more welcome.
• E-mail answers to michael.kennedy@vermont.gov
• I’ll post the answers & Honor Roll on Monday
• Please don’t use the “comment” feature to post your answers
• Please consider sharing the quiz with friends & colleagues
• Share on social media.  Hashtag it – #fiveforfriday

Questions 1 & 2

Everyone knows I often mention the 7 Cs of Legal Ethics.  Earlier this week, I spoke with student-clinicians at Vermont Law School’s South Royalton Legal Clinic.  Their quiz on the 7 Cs included this question:

• “Let’s imagine that upon passing the bar you accept a job with a state agency. Your first assignment is familiar: it involves a matter you worked on while in the clinic.  Which 2 Cs of legal ethics jump to mind?”

The scenario is a variation of a scenario that can, and often does, confront any lawyer.  So, Friday readers have the same task: identify the 2 Cs of Legal Ethics implicated by the scenario.

Question 3

 Your office employs Non-Lawyer.  In a new matter, Non-Lawyer has a conflict that, if Non-Lawyer were a lawyer, would prohibit Non-Lawyer from accepting the representation.  Which is most accurate?

• A.  Non-Lawyer’s conflict is imputed to all lawyers in the office and the office must decline the representation.
• B.  Non-Lawyer’s conflict is imputed, but only to any lawyer in the office who regularly supervises Non-Lawyer.
• C.  A comment to one of the rules indicates that while Non-Lawyer’s conflict is not imputed to any lawyer in the office, Non-Lawyer should be screened from involvement in the new matter.
• D.  Imputation depends on whether the matter is transactional or involves potential litigation.

Question 4

Last week, I presented to members of the Vermont Association for Justice.  My topic was professional responsibility and “The Golden Rule.”   What was the focus of the discussion?

• A.  The rule that prohibits unreasonable fees.
• B.  Trust Account Management/Bookkeeping
• C.  The advertising rules.
• D.  Closing arguments and the general prohibition on asking jurors to put themselves in the shoes of the victim or a witness.

Question 5

I often urge lawyers not to share any details of client matters, even if doing so doesn’t violate the prohibition on disclosing information relating to the representation of a client.

Reginald Haupt is a lawyer in Georgia.  In 1982, he was suspended from practice for 6 months for commingling.  In 2006, he was convicted of securities fraud and sentenced to 4 years in prison.

In the 1970’s, Haupt represented a client who owned a golf course that was frequented by members of the Chicago mafia.  Last month, Haupt made headlines by divulging to the media that, long ago, his former client told him that members of the Chicago mafia “delivered a package” to the golf course.  According to Haupt, the “package” was the dead body of a famous missing person who, to this day, remains buried on the course.  By the way, the golf course is in Georgia, not New Jersey.

Whose body?

Monday Morning Honors #229

Happy Memorial Day.

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

Honor Roll

• Karen Allen, Karen Allen Law
• Janis Barquist
• Penny Benelli, Dakin & Benelli
• Geoffrey Bok, Esq.
• Teri Corsones, Executive Director, Vermont Bar Association
• Andrew Delaney, Martin, Delaney & Ricci Law Group
• Heather Devine, Costello Valente & Gentry
• Jennifer Emens-Butler, Director of Communication & Education, Vermont Bar Association
• Benjamin Gould, Paul Frank + Collins
• Anthony Iarrapino, Wilschek & Iarappino
• Glenn Jarrett, Jarrett & Luitjens
• Deborah Kirchwey, Law Office of Deborah Kirchwey
• Jeanne Kennedy, JB Kennedy Associates, Blogger’s Mom
• Elizabeth Kruska, President, Vermont Bar Association
• John Leddy, McNeil Leddy & Sheahan
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
• Keith Roberts, Darby Kolter & Nordle
• Jim Runcie, Ouimette & Runcie
• Brice Simon, Breton & Simon
• Jay Spitzen, Esq.
• Jonathan Teller-Elsberg, Sheehey Furlong & Behm
• The Honorable John Valente, Vermont Superior Judge
• Jack Welch, Esq.
• Jason Warfield, Candidate for Admission to the Vermont Bar

 Answers

Question 1

There’s a rule that prohibits a lawyer from communicating about the subject of the representation with a person that the lawyer knows is represented by another lawyer in the matter.

Which is NOT an exception to the prohibition?

•   A.  The other lawyer consents to the communication.
•   B.  The communication is authorized by law.
•    C. The represented person initiates the communication. V.R.Pr.C. 4.2, Cmt. [3].
•   D. Trick Question.  A, B, and C are the 3 exceptions to the rule.

Question 2

Attorney called me with an inquiry. I listened, then replied, “yes, but only in an amount reasonably necessary for the purpose.” You may assume that my response accurately (and exactly) quoted the rule.

Given my response, Attorney asked whether the rules permit Attorney to:

•  A.  review an adverse party’s social media platforms.
•   B. deposit Attorney’s own money into a client trust account.  V.R.Pr.C. 1.15(b).
•  C.  engage in ex parte communications with jurors post-trial.
•  D.  take time off to relax.

Question 3

Communication is one of the 7 Cs of legal ethics.

Several rules require a lawyer to secure a client or former client’s ___________  __________ before acting.   The rules define ___________ __________  as:

• “An agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”

The quoted language is the definition of what phrase?

INFORMED CONSENT.

Question 4 

This is a tough one.  While self-reporting might be advisable in response to each, which is the only event that, by rule, a Vermont lawyer is required  to self-report?

• A.  trust account overdrafts.
• B.  adverse malpractice judgements.
• C. discipline imposed in another jurisdiction.
• D.  criminal convictions.

V.R.Pr.C. 8.3 imposes a duty to report “another lawyer.”  So, generally, there’s no duty to self-report violatios of the Rules of Professional Conduct.  However, per Rule 20(A) of Supreme Court Administrative Order 9, a lawyer who is admitted in Vermont and who is disciplined in another jurisdiction must promptly inform disciplinary counsel.

 Question 5

Looking through the list of notable events to have occurred on May 28 in history, two are related to the law, share a connection, and reminded of my mother.

On or about May 28, 1431, this person was captured while wearing men’s clothing.  Having been convicted of wearing men’s clothing earlier in the same year, the person was charged with heresy and with being a witch.  The person was convicted, sentenced to death, and executed on May 30.

Nearly 500 years later, on May 28, 1923, the United States Attorney General announced that it was legal for women to wear trousers in public.  Yes, the United States Attorney General actually had to make such an announcement.

Sidebar: today is my mother’s youngest sister’s birthday.  Startlingly, Aunt Helen Anne’s birthday is not on today’s list of historical events! Happy birthday AHAB!!!

Anyhow, who was executed as a heretic and witch on this weekend in 1431?

Your hint (and reason I was reminded of my mother): my mom’s maiden name is Jeanne Bonneau.

JOAN OF ARC

Five for Friday #229

Welcome to Friday and the 229^th #fiveforfriday legal ethics quiz!

Today is National Road Trip Day, National Don’t Fry Day, and National Cooler Day.  I plan to honor each this weekend.

Tomorrow, I’m making a road trip to Schenectady to run Sunday’s Miles on the Mohawk Marathon.  The race day forecast calls for clouds, a chance of light rain, and temperatures in the high 40’s and low 50’s. Not only perfect marathoning weather, but perfect weather for my skin and bald head not to burn, which is the exact issue – overexposure to the sun – about which National Don’t Fry Day intends to raise awareness.

Upon finishing, I’ll hop back in the car and drive to Lake Dunmore where the First Brother is camping this weekend.  Now, today is also National Brisket Day and National Burger Day.  Nobody makes better brisket than my brother, but he’s not bringing his smoker to the campground. Perhaps we’ll have burgers instead.  Regardless, our cooler will remain within easy reach as we sit by the fire Sunday night.

Like mine, I hope your long weekend includes activities that, while legal, have nothing to do with the law or practice thereof.  Enjoy!

Onto the quiz.

Rules

• Open book, open search engine, text-a-friend.
• Exception:  Question 5.  We try to play that one honest.
• Unless stated otherwise, the Vermont Rules of Professional Conduct apply
• Team entries welcome, creative team names even more welcome.
• E-mail answers to michael.kennedy@vermont.gov
• I’ll post the answers & Honor Roll on Monday
• Please don’t use the “comment” feature to post your answers
• Please consider sharing the quiz with friends & colleagues
• Share on social media.  Hashtag it – #fiveforfriday

Question 1

There’s a rule that prohibits a lawyer from communicating about the subject of the representation with a person that the lawyer knows is represented by another lawyer in the matter.

Which is NOT an exception to the prohibition?

•   A.  The other lawyer consents to the communication.
•   B.  The communication is authorized by law.
•   C.  The represented person initiates the communication.
•   D.  Trick Question.  A, B, and C are the 3 exceptions to the rule.

Question 2

Attorney called me with an inquiry. I listened, then replied, “yes, but only in an amount reasonably necessary for the purpose” allowed by the rule.  You may assume that my response accurately (and exactly) quoted the rule.

Given my response, Attorney asked whether the rules permit Attorney to:

•  A.  review an adverse party’s social media platforms.
•  B.  deposit Attorney’s own money into a client trust account.
•  C.  engage in ex parte communications with jurors post-trial.
•  D.  take time off to relax.

Question 3

Communication is one of the 7 Cs of legal ethics.

Several rules require a lawyer to secure a client or former client’s ___________  __________ before acting.   The rules define ___________ __________  as:

• “An agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”

The quoted language is the definition of what phrase?

Question 4

This is a tough one.  While self-reporting might be advisable in response to each, which is the only event that a lawyer is specifically rto self-report?

• A.  trust account overdrafts.
• B.  adverse malpractice judgements.
• C.  discipline imposed in another jurisdiction.
• D.  criminal convictions.

 Question 5

Looking through the list of notable events to have occurred on May 28 in history, two are related to the law, share a connection, and remind of my mother.

On or about May 28, 1431, this person was captured while wearing men’s clothing.  Having been convicted of wearing men’s clothing earlier in the same year, the person was charged with heresy and with being a witch.  The person was convicted, sentenced to death, and executed on May 30.

Nearly 500 years later, on May 28, 1923, the United States Attorney General announced that it was legal for women to wear trousers in public.  Yes, the United States Attorney General actually had to make such an announcement.

Sidebar: today is my mother’s youngest sister’s birthday.  Shockingly, Aunt Helen Anne’s birthday is not on today’s list of historical events! Happy birthday AHAB!!!

Anyhow, who was executed as a heretic and witch on this weekend in 1431?

Your hint (and reason I was reminded of my mother): my mom’s maiden name is Jeanne Bonneau.

Monday Morning Honors #228

Happy Monday!

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

Honor Roll

• Karen Allen, Karen Allen Law
• Alberto Bernabe, Professor of Law, University of Illinois at Chicago, John Marshall School of Law
• Andrew Delaney, Martin, Delaney & Ricci Law Group
• Heather Devine, Costello Valente & Gentry
• Jennifer Emens-Butler, Vermont Bar Association, Director of Communication & Education
• Glenn Jarrett, Jarrett & Luitjens
• Deborah Kirchwey, Law Office of Deborah Kirchwey
• Jeanne Kennedy, JB Kennedy Associates, Blogger’s Mom
• John Leddy, McNeil Leddy & Sheahan
• Kevin Lumpkin, Sheehey, Furlong & Behm
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Jeff Messina, Bergeron, Paradis, Fitzpatrick
• Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
• Herb Ogden, Esq.
• Keith Roberts, Darby Kolter & Nordle
• Noah Rosenthal, Fenwick
• Jay Spitzen, Esq.
• Jonathan Teller-Elsberg, Sheehey Furlong & Behm
• The Honorable John Valente, Vermont Superior Judge
• Eva Vekos, Marsh & Wagner
• Jason Warfield, Candidate for Admission to the Vermont Bar
• Zachary York, Sheehey Furlong & Behm

 Answers

Question 1

Identify the duty imposed by a rule that includes these phrases. It’s one of the 7 Cs of Legal Ethics.

• Explain the matter to the extent reasonably necessary to permit the client to make informed decisions about the representation.
• Keep the client reasonably informed about the status of the matter.
• Promptly reply with a client’s reasonable requests for information.

COMMUNICATION.  Each phrase appears in V.R.Pr.C. 1.4.

Question 2

Lawyer contacted me with an inquiry. I listened, then replied “I recommend that you limit your motion to citing to the rule’s specific provision that either requires or permits it.  Then, if the court orders you to disclose more, do so carefully, without disclosing more than necessary to make your point.”

Given my response, it’s most likely that Lawyer called to discuss a motion to:

• A.  recuse the judge.
• B.  disqualify opposing counsel.
• C.  withdraw from representing a client.
• D.  order a competency evaluation.

This question refers to the dangers of “noisy withdrawal.”  See my blog post Stop Making Noise.

Question 3

Lawyer is an associate at Firm. Tomorrow, Lawyer intends to provide short-term limited legal services to clients at a walk-in clinic sponsored by a nonprofit organization.  Neither Lawyer nor the walk-in clients will expect Lawyer or Firm to provide continuing representation to the clients.  By rule, which set of rules will be (somewhat) relaxed, insofar as they relate to Lawyer’s work at the walk-in clinic?   The rules on:

•  A.  Malpractice Insurance
•  B.  Conflicts of Interest. V.R.Pr.C. 6.5
•  C.  Competence & Diligence
•  D.  Client Confidences

Question 4

 Many types of “threats” could violate the Vermont Rules of Professional Conduct.  However, there’s only one rule that specifically prohibits lawyers from threatening to do something.

Do what?

V.R.Pr.C. 4.5 makes it professional misconduct to present, participate in presenting, or THREATEN to present criminal charges in order to obtain an advantage in a civil matter.

 Question 5

Bobby Franks was brutally murdered on May 21, 1924.  He was 14 years old.

Two men were charged with the murder.  They were 19 and 18.  Their lawyer concluded that a jury trial would likely result in convictions and death sentences. So, the lawyer convinced the clients to plead guilty and allow him to argue that the judge should spare their lives and sentence them to life in prison.

Then, in a Chicago courthouse in what the media labeled “The Trial of the Century,” the lawyer delivered an argument famously criticizing the death penalty, its use on the young, and the place of vengeance in the justice system.

In the end, the judge sentenced the lawyer’s clients to life in prison.

Interestingly, over a decade earlier, the lawyer was banned from practicing law in California after having been charged with jury tampering and bribery while representing a client charged with bombing the Los Angeles Times building.  The lawyer was acquitted on one count and the jury (a different one) hung on the other.

Name the lawyer.

Bonus: name the lawyer’s clients.

CLARENCE DARROW in the trial of Leopold and Loeb.

The 228th #fiveforfriday legal ethics quiz.

Welcome to Friday and the 228^th #fiveforfriday legal ethics quiz!

My recurring condition of Blogger’s Block has flared again, leaving me without a topic for today’s intro. Over coffee, I put in a half-hearted effort to find a hook related to today’s date or quiz number.  Alas, as those who know me best know full well, “half-hearted” is damned near Herculean for me.  Thus, to characterize this morning’s quest as involving effort of any measurable quantity would likely violate Rule 7.1 and its ban on false or misleading communications concerning Bar Counsel’s services.

Still, I learned two things: today is both National Memo Day and National Pizza Party Day.  That each is honored with a day flummoxed me.

I’ll begin with National Pizza Party Day.

Umm…. why is it limited to a single day?

During Well-Being Week in Law, I mentioned my hope that the profession will attend to its well-being year-round, not just for a week in May. Similarly, I often tell my mother that every day should be Mother’s Day.

Wait a minute . . .

I’m not certain that I tell her that.  Indeed, she might read this blog and announce that it violates the ban on Bar Counsel making false or misleading communications about his service as a son.

Anyhow, to me, pizza parties are in the same category as moms and well-being.  While perfectly acceptable to highlight them at a specific moment in time, they are to be celebrated as often as possible.

As for National Memo Day, my initial reaction was one of shock and dismay. I despise memos.  I can conceive of no good reason to set aside a day to honor or send them.

Fortunately, I found this entry on the National Day Calendar.  As it turns out, “the observance aims to reduce the number of memos issued in the workplace. It also hopes that memo writers keep their messages brief and to the point.”

Here here!  And, yet another example of a celebration that shouldn’t be limited to a single day!

Now, stop reading this and send your co-workers a short memo suggesting that the office knock off early for a pizza party.

Onto the quiz!

Rules

• Open book, open search engine, text-a-friend.
• Exception:  Question 5.  We try to play that one honest.
• Unless stated otherwise, the Vermont Rules of Professional Conduct apply
• Team entries welcome, creative team names even more welcome.
• E-mail answers to michael.kennedy@vermont.gov
• I’ll post the answers & Honor Roll on Monday
• Please don’t use the “comment” feature to post your answers
• Please consider sharing the quiz with friends & colleagues
• Share on social media.  Hashtag it – #fiveforfriday

Question 1

Identify the duty imposed by a rule that includes these phrases. It’s one of the 7 Cs of Legal Ethics.

• Explain the matter to the extent reasonably necessary to permit the client to make informed decisions about the representation.
• Keep the client reasonably informed about the status of the matter.
• Promptly reply with a client’s reasonable requests for information.

Question 2

Lawyer contacted me with an inquiry. I listened, then replied “I recommend that you limit your motion to citing to the rule’s specific provision that either requires or permits it.  Then, if the court orders you to disclose more, do so carefully, without disclosing more than necessary to make your point.”

Given my response, it’s most likely that Lawyer called to discuss a motion to:

• A.  recuse the judge.
• B.  disqualify opposing counsel.
• C.  withdraw from representing a client.
• D.  order a competency evaluation.

Question 3

Lawyer is an associate at Firm. Tomorrow, Lawyer intends to provide short-term limited legal services to clients at a walk-in clinic sponsored by a nonprofit organization.  Neither Lawyer nor the walk-in clients will expect Lawyer or Firm to provide continuing representation to the clients.  By rule, which set of rules will be (somewhat) relaxed, insofar as they relate to Lawyer’s work at the walk-in clinic?   The rules on:

•  A.  Malpractice Insurance
•  B.  Conflicts of Interest
•  C.   Competence & Diligence
•  D.  Client Confidences

Question 4

 Many types of “threats” could violate the Vermont Rules of Professional Conduct.  However, there’s only one rule that specifically prohibits lawyers from threatening to do something.

Do what?

 Question 5

Bobby Franks was brutally murdered on May 21, 1924.  He was 14 years old.

Two men were charged with the murder.  They were 19 and 18.  Their lawyer concluded that a jury trial would likely result in convictions and death sentences. So, the lawyer convinced the clients to plead guilty and allow the lawyer to argue that the judge should spare their lives and sentence them to life in prison.

Later, in a Chicago courthouse in what the media labeled “The Trial of the Century,” the lawyer delivered an argument famously criticizing the death penalty, its use on the young, and the place of vengeance in the justice system.

In the end, the judge sentenced the lawyer’s clients to life in prison.

Interestingly, over a decade earlier, the lawyer was banned from practicing law in California after having been charged with jury tampering and bribery while representing a client charged with bombing the Los Angeles Times building.  The lawyer was acquitted on one count and the jury (a different one) hung on the other.

Name the lawyer.

Bonus: name the lawyer’s Chicago clients who murder Bobby Franks 97 years ago today.

Monday Morning Answers #227

Happy Monday!

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

Honor Roll

• Evan Barquist, Montroll, Backus & Oettinger
• Alberto Bernabe, Professor of Law, University of Illinois at Chicago, John Marshall School of Law

• Benjamin Gould, Paul Frank + Collins
• Lon McClintock, Esq.
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Jeff Messina, Bergeron, Paradis, Fitzpatrick
• Herb Ogden, Esq.
• Keith Roberts, Darby Kolter & Nordle
• Jay Spitzen, Esq.
• Jonathan Teller-Elsberg, Hershenson, Carter, Scott & McGee
• Jason Warfield, Esq.
• Thomas Wilkinson, Cozen O’Connor
• Zachary York, Sheehey Furlong & Behm

Answers

Question 1

Fill in the blank. (choices below)

By rule, a concurrent conflict of interest exists if there is ___________________ that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

•  A.  an appearance
•  B.  the potential
•  C.  a likelihood
•   D.  a significant risk.  See, V.R.Pr.C. 1.7(a)(2).

 Question 2

Paralegal works at Firm.  Prospective Client meets with Firm to discuss potential representation.  Paralegal has conflict of interest that would preclude Paralegal from representing Prospective Client if Paralegal were a lawyer.  Which is most accurate?

• A.  The conflict is imputed to all lawyers who work at Firm.
• B.  The conflict is imputed, but only to lawyers with whom Paralegal works closely.
• C.  The conflict is not imputed.
• D.  The conflict is not imputed, but paralegal should be screened from any involvement in Prospective Client’s matter. See, V.R.Pr.C. 1.10, Cmt. [4].

Question 3

At a CLE, I’m talking about “lateral transfers and whether they were involved personally and substantially.”  What specific area of the rules was I addressing?

• A.  Trust accounting.  A lateral transfer is a type of ACH transfer.
• B.  Trust accounting. A lateral transfer is wire fraud. Personal & substantial involvement in effectuating one will expose a lawyer to criminal and disciplinary charges.
• C.  Conflicts of interest that arise when a lawyer changes firm.
• D.  Conflicts of interest that arise when a lawyer becomes a judge.

Question 4

Lawyer called me with an inquiry. I responded, “one of the comments to the rule indicates that the rule encompasses anyone who supervises, directs, or regularly consults with you on the matter; who has the authority to obligate your client with respect to the matter; and whose act or omission in connection with the matter may be imputed to your client for the purposes of civil or criminal liability.”

Given my response, Lawyer’s inquiry most likely related to:

• A.  Lawyer’s duty to report a supervisor’s misconduct.
• B.  Lawyer’s duty to report a client’s criminal conduct.
• C.  The scope of Lawyer’s duties to maintain a client’s confidences.
• D. The constituents of Lawyer’s organizational client with whom opposing counsel cannot communicate absent Lawyer’s consent.  See, V.R.Pr.C. 4.2, Cmt. [7].

Question 5

Constitutional Law.

29 years ago today, Michigan ratified an amendment to the U.S. Constitution. At the time, many believed that Michigan was the 38^th state to ratify the amendment, thus making the amendment law.  As it turns out, the amendment officially became part of the Constitution two days earlier, when Alabama ratified it on May 5.

Why the confusion?

Because the amendment was proposed in 1789.  Kentucky ratified it in 1792, but that fact was somehow lost to history until 1996.

Anyhow, it was the most recent amendment to be adopted.

What number is it?  In other words, how many amendments are there to the United States Constitution?

27. The 27^th amendment provides that changes to congressional salaries will not take effect until after the next election of members of the House of Representatives.

Hint: think about a long time focus of the Five for Friday posts.

 

The 227th #fiveforfriday legal ethics quiz.

Welcome to the 227^th #fiveforfriday legal ethics quiz!

This week is Well-Being Week in Law.  Each day focused on a different component of well-being. Each day, I recorded a video addressing the day’s theme.  Except for Monday, I hosted a discussion of the day’s theme at lunch, then posted a video debrief of the discussion.

The posts and videos are this week’s intro.  Check ‘em out.

• Physical Well-Being: Stay Strong
• Spiritual Well-Being: Aligning Work with Personal Values
  • The debrief video
• Intellectual Well-Being: Venue, The Electric Slide & Impostor Syndrome
  • The debrief video
• Social Well-Being: Communities & Connections
  • The debrief video
• Emotional Well-Being: W.I.N. your three feet of influence

Onto the quiz!

Rules

• 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 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
• Share on social media.  Hashtag it – #fiveforfriday

Question 1

Fill in the blank. (choices below)

By rule, a concurrent conflict of interest exists if there is ___________________ that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

• A.   an appearance
• B.   the potential
• C.  a likelihood
•  D.  a significant risk

 Question 2

Paralegal works at Firm.  Prospective Client meets with Firm to discuss potential representation.  Paralegal has conflict of interest that would preclude Paralegal from representing Prospective Client if Paralegal were a lawyer.  Which is most accurate?

• A.  The conflict is imputed to all lawyers who work at Firm.
• B.  The conflict is imputed, but only to lawyers with whom Paralegal works closely.
• C.  The conflict is not imputed.
• D.  The conflict is not imputed, but paralegal should be screened from any involvement in Prospective Client’s matter.

Question 3

At a CLE, I’m talking about “lateral transfers and whether they were involved personally and substantially.”  What specific area of the rules was I addressing?

• A  Trust accounting.  A lateral transfer is a type of ACH transfer.
• B.  Trust accounting. A lateral transfer is wire fraud. Personal & substantial involvement in effectuating one will expose a lawyer to criminal and disciplinary charges.
• C.  Conflicts of interest that arise when a lawyer changes firm.
• D.  Conflicts of interest that arise when a lawyer becomes a judge.

Question 4

Lawyer called me with an inquiry. I responded, “one of the comments to the rule indicates that the rule encompasses anyone who supervises, directs, or regularly consults with you on the matter; who has the authority to obligate your client with respect to the matter; and whose act or omission in connection with the matter may be imputed to your client for the purposes of civil or criminal liability.”

Given my response, Lawyer’s inquiry most likely related to:

• A.  Lawyer’s duty to report a supervisor’s misconduct.
• B.  Lawyer’s duty to report a client’s criminal conduct.
• C.  The scope of Lawyer’s duties to maintain a client’s confidences.
• D.  The constituents of Lawyer’s organizational client with whom opposing counsel cannot communicate absent Lawyer’s consent.

Question 5

Constitutional Law.

29 years ago today, Michigan ratified an amendment to the U.S. Constitution. At the time, many believed that Michigan was the 38^th state to ratify the amendment, thus making the amendment law.  As it turns out, the amendment officially became part of the Constitution two days earlier, when Alabama ratified it on May 5.

Why the confusion?

Because the amendment was proposed in 1789.  Kentucky ratified it in 1792, but that fact was somehow lost to history until 1996.

Anyhow, it was the most recent amendment to be adopted.

What number is it?  In other words, how many amendments are there to the United States Constitution?

Hint: think about a long time focus of the Five for Friday posts.

Monday Morning Honors #226

Happy Monday!

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

And, as it turns out, the key to picking the Kentucky Derby winner may have been the quiz number.  It was quiz 226.  The winning horse, Medina Spirt, went off at 12-1, which means a $1 bet to win paid $26.20.

Alas.

Honor Roll

• Penny Benelli, Dakin & Benelli
• Andrew Delaney, Martin, Delaney & Ricci Law Group
• Anthony Iarrapino, Wilschek & Iarrapino
• Glenn Jarrett, Jarrett & Luitjens
• Jeanne Kennedy, JB Kennedy Associates, Mother of the Blogger
• Elizabeth Kruska, President, Vermont Bar Association
• John Leddy, McNeil Leddy & Sheahan
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Joseph McNeil, McNeil Leddy & Sheahan
• Jeff Messina, Bergeron, Paradis, Fitzpatrick
• Noah Rosenthal, Fenwick
• Jay Spitzen
• Jonathan Teller-Elsberg, Hershenson, Carter, Scott & McGee
• Honorable John Valente, Vermont Superior Judge
• Thomas Wilkinson, Cozen O’Connor
• Zachary York, Future Legal Assistant, Sheehey Furlong & Behm

 Answers

Question 1

Lawyer called me with an inquiry related to Matter 2, a matter in which Lawyer was considering whether to represent Spring.  Our discussion focused on whether Matter 1 was “the same as or substantially related” to Matter 1.

It’s most likely that Matter 1:

• A.  also involved Lawyer representing Spring.
• B.  involved another attorney in Lawyer’s firm representing Spring.
• C  resulted in a disciplinary complaint being filed against Lawyer.
• D  involved Winter, a former client of Lawyer’s whose interests are materially adverse to Spring’s in Matter 2.

This is Rule 1.9(a), the rule that applies when assessing conflicts involving former clients. A conflict exists when a current or prospective client’s interests are materially adverse to a former client’s in a matter that is the same as or substantially related to the matter in which the lawyer represented the former client.

Question 2

What is the main difference between how the rules treat hourly and contingent fees?

• A.  a contingent fee agreement must be in a writing that is signed by the client.  Meanwhile, the rule states that it is “preferable” that an hourly fee agreement be in writing.  NOTE: while not required by V.R.Pr.C. 1.5, it’s best practice to confirm even an hourly fee agreement in writing.
• B.  an hourly fee agreement must be in a writing that is signed by the client.  Meanwhile, the rules states that it is “preferable” that a contingent fee agreement be confirmed in writing.
• C.  hourly fees are presumed reasonable, contingent fees are not.
• D.  Trick question.  Both fees must be reasonable. Other than that, the rules draw no distinction between them.

Question 3

At a CLE, I said:

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

Which more general topic(s) is it most likely that the CLE focused on?

• A.  The relationship between a lawyer and law firm when the lawyer is “of counsel.”
• B.  Conflicts & Confidences.  The question quotes Rule 1.0(k)’s definition of “screened.”
• C.  Issues associated with accessing electronically stored information while working remotely.
• D.  A firm’s response when a lawyer is sanctioned and put on disciplinary probation.

Question 4

Attorney called me with an inquiry.  I listened and responded, “your ethical obligation is to notify the sender that you received it.  Depending on the circumstances, the rules of civil procedure might impose additional duties.”

What did Attorney receive?

• A. information that Attorney knows or should know was inadvertently sent.  See, V.R.Pr.C. 4.4(a).
• B.  a last-minute change to previously arranged wiring instructions.
• C.  a subpoena to produce confidential information related to the representation of a current or former client.
• D.  a request to meet with a prospective client with whom Attorney knows there exists a conflict of interest.

Question 5

48 years ago today, Lawyer was fired from his job by Person.  Person fired Lawyer after learning that Person had been secretly cooperating with an investigation of Person and Others.

Lawyer had been cooperating with the investigation as part of deal related to his own conduct, conduct that eventually resulted in a criminal conviction and disbarment.

In fact, Person was also an attorney, but was not actively practicing when he fired Lawyer.  Still, Person was eventually disbarred too.

The firing was part of a larger incident that is widely deemed to have resulted in legal ethics and professional responsibility becoming required courses in law school.

Name Lawyer, Person, and the job from which Lawyer was fired 48 years ago today.

Lawyer:                John Dean

Person:                Richard Nixon

Job:                      White House Counsel

Five for Friday #226

Welcome to the 226^th #fiveforfriday legal ethics quiz!

I’ve been on hiatus from crafting introductions related to the quiz number or date.  Today, the hiatus ends. Barely.

The Kentucky Derby is tomorrow.  Since nobody likes a quitter, I’m not going to let my horrible track record keep me from yet again using the pre-Derby quiz to share my picks.

I like an exacta box with the 8, 10, 14 and 15.

Alas, people like wafflers even less than quitters. So, I’ll take a stand:

• Hot Rod Charlie
• Essential Quality
• Rock Your World
• Midnight Bourbon.

I can hear you now: “mike, that’s it? How does this end the hiatus?

Here’s how.

I’m easing back into things.  Today, I spent about 22.6 seconds researching my Derby picks.

Onto the quiz!

ps: how can your Kentucky Derby picks NOT include a horse with “bourbon” in its name?!?!

pps: Elizabeth Kruska is not only a regular member of the #fiveforfriday Honor Roll, she’s also the current President of the Vermont Bar Association.  And I can make the following statement with no worry of violating any of the honesty or advertising rules: President Kruska and her husband, Wesley Lawrence, are the Vermont bar’s leading horse-racing aficionados. In 2018, Elizabeth was kind enough to answer a series of questions in which I attempted to tie horse racing, the practice of law, and legal ethics.  Her answers and insight are fascinating.  You can check them out here.

Rules

• 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 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
• Share on social media.  Hashtag it – #fiveforfriday

Question 1

Lawyer called me with an inquiry related to Matter 2, a matter in which Lawyer was considering whether to represent Spring.  Our discussion focused on whether Matter 1 was “the same as or substantially related” to Matter 1.

It’s most likely that Matter 1:

• A.  also involved Lawyer representing Spring.
• B.  involved another attorney in Lawyer’s firm representing Spring.
• C.  resulted in a disciplinary complaint being filed against Lawyer.
• D.  involved Winter, a former client of Lawyer’s whose interests are materially adverse to Spring’s in Matter 2.

Question 2

What is the main difference between how the rules treat hourly and contingent fees?

• A.  a contingent fee agreement must be in a writing that is signed by the client.  Meanwhile, the rule states that it is “preferable” that an hourly fee agreement be in writing.
• B.  an hourly fee agreement must be in a writing that is signed by the client.  Meanwhile, the rules states that it is “preferable” that a contingent fee agreement be confirmed in writing.
• C.  hourly fees are presumed reasonable, contingent fees are not.
• D.  Trick question.  Both fees must be reasonable. Other than that, the rules draw no distinction between them.

Question 3

At a CLE, I said:

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

Which more general topic(s) is it most likely that the CLE focused on?

• A.  The relationship between a lawyer and law firm when the lawyer is “of counsel.”
• B.  Conflicts & Confidences.
• C.  Issues associated with accessing electronically stored information while working remotely.
• D.  A firm’s response when a lawyer is sanctioned and put on disciplinary probation.

Question 4

Attorney called me with an inquiry.  I listened and responded, “your ethical obligation is to notify the sender that you received it.  Depending on the circumstances, the rules of civil procedure might impose additional duties.”

What did Attorney receive?

• A.  information that Attorney knows or should know was inadvertently sent.
• B   a last-minute change to previously arranged wiring instructions.
• C.  a subpoena to produce confidential information related to the representation of a current or former client.
• D.  a request to meet with a prospective client with whom Attorney knows there exists a conflict of interest.

Question 5

48 years ago today, Lawyer was fired from his job by Person.  Person fired Lawyer after learning that Lawyer had been secretly cooperating with an investigation of Person and Others.

Lawyer had been cooperating with the investigation as part of deal related to his own conduct, conduct that eventually resulted in a criminal conviction and disbarment.

In fact, Person was also an attorney, but was not actively practicing when he fired Lawyer.  Still, Person was eventually disbarred too.

The firing was part of a larger incident that is widely deemed to have resulted in legal ethics and professional responsibility becoming required courses in law school.

Name Lawyer, Person, and the job from which Lawyer was fired 48 years ago today.