Monday Morning Answers #184

Welcome to Monday!  Friday’s questions are here.  Today’s answers follow this week’s honor roll.

Honor Roll

• Karen Allen, Esq.
• Matthew Anderson, Pratt Vreeland Kennelly Martin & White
• Evan Barquist, Montroll Backus & Oettinger
• Alberto Bernabe, Professor, John Marshall Law School
• Anna Black, Stackpole & French
• Andrew Delaney, Martin & Delaney
• Laura Gorsky, Esq.
• Bob Grundstein, Esq.
• Tammy Heffernan, Esq.
• Glenn Jarrett, Jarrett & Luitjens
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
• John Leddy, McNeil, Leddy, & Sheahan
• Tom Little, Little & Cicchetti
• Pam Loginsky, Washington Association of Prosecuting Attorneys
• Lon McClintock, McClintock Law Offices
• Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
• Hal Miller, First American
• Jim Runcie, Ouimette & Runcie
• Kristen Shamis, Monaghan, Safar, Ducham
• Jonathan Teller-Elsberg, Vermont Law School, JD Candidate
• Jack Welch, Esq.

Question 1

If Lawyer’s continued representation of a client will result in a violation of the Rules of Professional Conduct, Lawyer _____________.

• A.    may withdraw.
• B.    shall withdraw.  V.R.Pr.C. 1.16(a)(1)
• C.    oddly, this situation is not mentioned in the Vermont Rules of Professional Conduct.

Question 2

Lawyer called me with an inquiry involving Client and Other.  I listened.  Then, I said:

“it’s ok as long as:

1. Client gives informed consent;
2. Other doesn’t interfere with your professional judgment or your relationship with Client; and,
3. you don’t share any information about the representation with Other absent Client’s consent.”

What is Other’s involvement with this situation?

Other is paying for Lawyer’s representation of Client.  V.R.Pr.C. 1.8(f).

Question 3

Later today at the Bankruptcy CLE, I’m going to mention “the 6 Cs of Legal Ethics.”  Competence, Communication, Confidentiality, Conflicts, Candor, and Civility.

There’s actually a 7^th “C”, but the word does not appear anywhere in the rules.  Rather, it’s the word we use to refer to a violation of the duty to hold property of clients and third persons separate from the lawyer’s own property.

What’s this 7th “C”?

Commingling

Question 4

Lawyer represents Kennedy.   This morning, Kennedy gave Lawyer a bank check for $6,000 to pay for various expenses related to the representation, including legal fees owed to Lawyer.  Lawyer did not have time to make it to the bank today but intends to deposit Kennedy’s check on Monday.

Honestly, Kennedy is a pain.  He hasn’t paid in a long time and has a hefty outstanding bill.

Lawyer’s trust account holds funds that belong to clients other than Kennedy. This afternoon, Lawyer wants (finally) to pay herself for legal services provided to Kennedy by transferring funds from the trust account to her operating account.  Then, on Monday, Lawyer intends to replace those funds by depositing Kennedy’s bank check into trust.

Which is most accurate?

• A.   Good plan, but only because it’s a bank check, not a personal check.
• B.   Good plan, if Lawyer charges Kennedy a reasonable fee.
• C.   Bad plan, because the bank check is for more than $5,000.
• D.   Bad plan, because the disbursement would take place before Lawyer deposits Kennedy’s bank check into her trust account.  V.R.Pr.C. 1.15(f).

Question 5

Today is the 154th anniversary of the ratification of the 13th Amendment to the United States Constitution, the amendment that abolished slavery.

One of the members of Congress who was instrumental in drafting and passing the 13th Amendment was a “radical republican” who was born & raised in Vermont.  After leaving Vermont, he practiced law in Pennsylvania.  As a trial lawyer, legend has it that he responded to a judge’s warning that he was “manifesting contempt” by saying “Sir, I’m doing my best to conceal it.”

In 2012, Tommy Lee Jones played him in a movie about Abraham Lincoln and won the Academy Award for Best Supporting Actor .

Name the lawyer who was born & raised in Vermont and who played a critical role in drafting, passing, and ratifying the 13th Amendment.

Danville’s own Thaddeus Stevens

Five for Friday #184

Happy Friday!

I’m about to hit the road to speak at two CLEs: the VBA Bankruptcy Section’s Holiday CLE in Killington, followed this afternoon by the Defender General’s training in Montpelier. Last night, I had visions of rising early and using today’s introduction to weave for you a magical story tying this week’s number (184), to today’s date, and, eventually, to The Irishman.  

I said “visions.”  I did not say – or do anything to indicate – that I had managed to transform my visions to a draft, not to mention a final product.

But you know what that makes me?

A visionary.

Onto the quiz!

Rules

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

Question 1

If Lawyer’s continued representation of a client will result in a violation of the Rules of Professional Conduct, Lawyer _____________.

• A.    may withdraw.
• B.    shall withdraw.
• C.    oddly, this situation is not mentioned in the Vermont Rules of Professional Conduct.

Question 2

Lawyer called me with an inquiry involving Client and Other.  I listened.  Then, I said:

“it’s ok as long as:

1. Client gives informed consent;
2. Other doesn’t interfere with your professional judgment or your relationship with Client; and,
3. you don’t share any information about the representation with Other absent Client’s consent.”

What is Other’s involvement with this situation?

Question 3

Later today at the Bankruptcy CLE, I’m going to mention “the 6 Cs of Legal Ethics.”  Competence, Communication, Confidentiality, Conflicts, Candor, and Civility.

There’s actually a 7^th “C”, but the word does not appear anywhere in the rules.  Rather, it’s the word we use to refer to a violation of the duty to hold property of clients and third persons separate from the lawyer’s own property.

What’s this 7th “C”?

Question 4

Lawyer represents Kennedy.   This morning, Kennedy gave Lawyer a bank check for $6,000 to pay for various expenses related to the representation, including legal fees owed to Lawyer.  Lawyer did not have time to make it to the bank today but intends to deposit Kennedy’s check on Monday.

Honestly, Kennedy is a pain.  He hasn’t paid in a long time and has a hefty outstanding bill.

Lawyer’s trust account holds funds that belong to clients other than Kennedy. This afternoon, Lawyer wants (finally) to pay herself for legal services provided to Kennedy by transferring funds from the trust account to her operating account.  Then, on Monday, Lawyer intends to replace those funds by depositing Kennedy’s bank check into trust.

Which is most accurate?

• A.   Good plan, but only because it’s a bank check, not a personal check.
• B.   Good plan, if Lawyer charges Kennedy a reasonable fee.
• C.   Bad plan, because the bank check is for more than $5,000.
• D.   Bad plan, because the disbursement would take place before Lawyer deposits Kennedy’s bank check into her trust account.

Question 5

Today is the 154th anniversary of the ratification of the 13th Amendment to the United States Constitution, the amendment that abolished slavery.

One of the members of Congress who was instrumental in drafting and passing the 13th Amendment was a “radical republican” who was born & raised in Vermont.  After leaving Vermont, he practiced law in Pennsylvania.  As a trial lawyer, legend has it that he responded to a judge’s warning that he was “manifesting contempt” by saying “Sir, I’m doing my best to conceal it.”

In 2012, Tommy Lee Jones played him in a movie about Abraham Lincoln and won the Academy Award for Best Supporting Actor .

Name the lawyer who was born & raised in Vermont and who played a critical role in drafting, passing, and ratifying the 13th Amendment.

Monday Morning Answers #183

Welcome to Monday!  Friday’s questions are here.  So many readers miss Bove’s!  The answers follow today’s Honor Roll.

Honor Roll

• Karen Allen, Esq.; Karen Allen Law
• Evan Barquist, Montroll Backus & Oettinger
• Penny Benelli, Dakin & Benelli
• CeCe Conrad, Costello, Valente & Gentry
• Honorable John M. Conroy, United States Magistrate Judge, District of Vermont
• Corinne Deering, PACE Registered Paralegal®.  Paul Frank & Collins
• Erin Gilmore, Ryan Smith & Carbine
• Robert Grundstein, Esq.
• Glenn Jarrett, Jarrett & Luitjens
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
• Elizabeth Kruska, President-Elect, VBA Board of Managers
• John Leddy, McNeil Leddy & Sheahan
• Tom Little, Little & Cicchetti
• Pam Loginsky, Washington Association of Prosecuting Attorneys
• Hal Miller, First American
• Herb Ogden, Esq.
• Kristen Shamis, Monaghan, Safar, Ducham
• Jonathan Teller-Elsberg, Vermont Law School, JD Candidate
• Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

Consider the following: (1) the time & labor required; (2) the results obtained; (3) the lawyer’s experience, reputation and ability.

Each is mentioned in the rule that governs:

• A.   Competence
• B.   Diligence
• C.   Conflicts
• D.   Fees  V.R.Pr.C. 1.5

Question 2

At a CLE, I give the following short answer to a question: “(1) the client gives informed consent; or (2) it’s impliedly authorized to carry out the representation.”  Most likely, it was a question on the rule that governs:

• A.  Conflicts of Interest – Concurrent Clients
• B.  Conflicts of Interest – Former Clients
• C.  Confidentiality of Information V.R.Pr.C. 1.6(a) (my comments are two of the exceptions to the rule against disclosing information relating to the representation.)
• D.  Disbursed funds from trust in reliance upon a deposit that does not yet constitute “collected funds.”

Question 3

Attorney called me with an inquiry. I listened, then said “the rule says that you can’t approach her in person, by phone, or by real-time electronic communication unless she’s (1) a lawyer; or (2) someone with whom you have family, close personal, or prior professional relationship.”

Who is the “she” I referred to in my response?

• A.  a prospective client from whom Attorney wants to solicit employment.  V.R.Pr.C. 7.3
• B.  a juror.
• C.  a represented witness in a matter in which Attorney represents a party.
• D.  an employee of an organization that is represented in a matter in which Attorney’s client is adverse to the organization.

Question 4

Last month, Lawyer served as a mediator in Oswald v. Ruby.  The matter did not resolve at mediation. Now, Ruby wants to retain Lawyer in the same matter.

Which is most accurately states the rule? Lawyer:

• A.  may not represent Ruby.
• B.  may represent Ruby if both Oswald & Ruby give informed consent, confirmed in writing.  V.R.Pr.C. 1.12(a)
• C.   may represent Ruby if Oswald did not disclose in the mediation any information that could be “significantly harmful” if used against Oswald.
• D.  B & C.

Question 5

Yesterday, I blogged about lawyers convicted of crimes. Today, speaking of lawyers convicted of crimes, conspiracy theories and JFK . . .

. . . Jim Garrison gained fame as the District Attorney for New Orleans.  In 1962, he accused several judges of racketeering and conspiring against him.  The judges charged him with criminal defamation. He was convicted. However, on appeal, the United States Supreme Court overturned the conviction, concluding that the statute Garrison was charged with violating was unconstitutional.

Years later, Garrison began his own investigation into the JFK assassination.  The investigation culminated with the arrest and trial of Clay Shaw for his alleged participation in a conspiracy to assassinate President Kennedy.  After a trial that took over a month, a jury needed less than an hour to acquit Shaw.

Garrison and the trial were featured in the Oliver Stone movie JFK.  Kevin Costner starred as Garrison. Garrison himself appeared in the movie, playing a famous judge.  The judge was involved in both the criminal defamation case against Garrison and an investigation of the JFK assassination.

Name the judge.

Chief Justice Earl Warren.  He was Chief Justice when the Court issued Garrison v. Louisiana and, later, chaired the Warren Commission.

Five for Friday #183

Today always makes me think of Bove’s.

For those of you who don’t know, Bove’s was a Burlington institution; an Italian restaurant in the Old North End that opened on December 7, 1941, and closed in 2015.  While the restaurant is no longer, Mark’s sauces, meatballs, and recipes remain among my favorites.  Although the kid in me (and I’m guessing in my brother) longs for that bread that came with every meal at the restaurant itself.  Oh, that bread.

Alas, I digress.

The fact that I think of the restaurant on November 22 has nothing to do with this week’s number, 183, or legal ethics.  Today is the anniversary of the JFK assassination.  I have no idea why I remember this, but Bove’s is where my mom and some of her friends went to watch news coverage of the event.

Generally, I don’t believe in conspiracy theories.  I have 2 exceptions:

1. The NFL’s obvious conspiracy to prop up the Patriots over the past 18 years; and,
2. JFK.

When it comes to the JFK assassination, I cannot get enough conspiracy theory.  At times, I think I’ve believed in every single one of them.  I’m obsessed with the smallest of details.

I’m also struck by the lack of emotion I attach to such a tragic event.  Time is funny.  Almost frivolous.

Back then, my mom was still a few years away from even meeting my dad.  For her and her friends, as college-aged kids, the event must have been one of the most significant of their lives, at least up until that point.  In the moment, I’m guessing they never could’ve conceived that it ever would be perceived as anything but crushing.

Then there’s me.

Yes, I know all about the day.  Nevertheless, it takes about two seconds for my thoughts to progress from wondering how terrified Jackie must have been & what really happened in Mexico City, to the magic loogie of Seinfeld fame & a mental note that I really should watch 11.22.63.  It’s why I subscribed to Hulu in the first place.

Isn’t that bizarre? An event that left my mom at an abject loss in Bove’s, she and her friends questioning their faith in the world that any children they might have would grow up in, leads one of those children to thinking of streaming options.

I’ve no idea what to make of that.  Perhaps it’s a reminder that no matter what it is that gets you in a crazy world  — JFK dying too young, Bove’s closing, the Patriots winning —  this too shall pass.

Onto the quiz!

Rules

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

Question 1

Consider the following: (1) the time & labor required; (2) the results obtained; (3) the lawyer’s experience, reputation and ability.

Each is mentioned in the rule that governs:

• A.   Competence
• B.   Diligence
• C.   Conflicts
• D.   Fees

Question 2

At a CLE, I give the following short answer to a question: “(1) the client gives informed consent; or (2) it’s impliedly authorized to carry out the representation.”  Most likely, it was a question on the rule that governs:

• A.  Conflicts of Interest – Concurrent Clients
• B.  Conflicts of Interest – Former Clients
• C.  Confidentiality of Information
• D.  Disbursed funds from trust in reliance upon a deposit that does not yet constitute “collected funds.”

Question 3

Attorney called me with an inquiry. I listened, then said “the rule says that you can’t approach her in person, by phone, or by real-time electronic communication unless she’s (1) a lawyer; or (2) someone with whom you have family, close personal, or prior professional relationship.”

Who is the “she” I referred to in my response?

• A.  a prospective client from whom Attorney wants to solicit employment.
• B.  a juror.
• C.  a represented witness in a matter in which Attorney represents a party.
• D.  an employee of an organization that is represented in a matter in which Attorney’s client is adverse to the organization.

Question 4

Last month, Lawyer served as a mediator in Oswald v. Ruby.  The matter did not resolve at mediation. Now, Ruby wants to retain Lawyer in the same matter.

Which is most accurately states the rule? Lawyer:

• A.  may not represent Ruby.
• B.  may represent Ruby if both Oswald & Ruby give informed consent, confirmed in writing.
• C.   may represent Ruby if Oswald did not disclose in the mediation any information that could be “significantly harmful” if used against Oswald.
• D.  B & C.

Question 5

Yesterday, I blogged about lawyers convicted of crimes. Today, speaking of lawyers convicted of crimes, conspiracy theories and JFK . . .

. . . Jim Garrison gained fame as the District Attorney for New Orleans.  In 1962, he accused several judges of racketeering and conspiring against him.  The judges charged him with criminal defamation. He was convicted. However, on appeal, the United States Supreme Court overturned the conviction, concluding that the statute Garrison was charged with violating was unconstitutional.

Years later, Garrison began his own investigation into the JFK assassination.  The investigation culminated with the arrest and trial of Clay Shaw for his alleged participation in a conspiracy to assassinate President Kennedy.  After a trial that took over a month, a jury needed less than an hour to acquit Shaw.

Garrison and the trial were featured in the Oliver Stone movie JFK.  Kevin Costner starred as Garrison. Garrison himself appeared in the movie, playing a famous judge.  The judge was involved in both the criminal defamation case against Garrison and an investigation of the JFK assassination.

Name the judge.

Monday Morning Answers #182

May your Monday not have begun in an airport!  In the spirit of Question 5, all I can do now is shake it off, shake it off.

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

Honor Roll

• Carolyn Anderson, General Counsel, Green Mountain Power; Vice-Chair, Professional Responsibility Board
• Evan Barquist, Montroll Backus & Oettinger
• Honorable John M. Conroy, United States Magistrate Judge, District of Vermont
• Erin Gilmore, Ryan Smith & Carbine
• Laura Gorsky, Esq.
• Robert Grundstein, Esq.
• Glenn Jarrett, Jarrett & Luitjens
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
• John Leddy, McNeil Leddy & Sheahan
• Pam Loginsky, Washington Association of Prosecuting Attorneys
• Jeffrey Messina, Bergeron Paradis Fitzpatrick
• Hal Miller, First American
• Herb Ogden, Esq.
• Nancy Hunter Rogers, Chamberlin School 
• Jim Runcie, Ouimette & Runcie
• Kristen Shamis, Monaghan, Safar, Ducham
• Jonathan Teller-Elsberg, Vermont Law School, JD Candidate

Answers

Question 1

A lawyer has a duty to reasonably consult with the client about the means by which the client’s objectives are to be accomplished.

• A.   False.  The lawyer controls the means.
• B.   False.   The lawyer shall abide by a client’s decisions with respect to the means by which the client’s objectives are pursued.
• C.   True.  V.R.Pr.C. 1.4(a).

A and B are not correct.  Per Rule 1.2(a), the client controls the objectives and the lawyer “as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued.”  This does not give the lawyer control over the means.  For instance, a client might not want to pay for something the lawyer suggests be done.  Nor does it give the client the absolute right to direct the lawyer to do certain things . . .  for instance, violate the rules.

Question 2

In representing a client, a lawyer _______ not use means that have no substantial purpose other than to embarrass, delay, or burden a third person.

Which is most accurate?

• A.   This is a rule.  And the blank is “shall.”   V.R.Pr.C. 4.4(a).
• B.   This is not a rule. It’s an aspirational comment to one of the rules. And the blank is “should.”

Question 3

A lawyer is holding funds to which both a client and third person claim interests. Their interests are in dispute.  By rule, the lawyer must:

• A.  disburse the funds as directed by the client
• B.   hold the funds until the dispute is resolved.  V.R.Pr.C. 1.15(e)
• C.   withdraw from representing the client
• D.   A or C

Question 4

If an attorney calls me with an inquiry and my response includes use of the word “imputed,” what did the attorney most likely call to discuss?

•  A.  Reviewing an adverse party’s social media posts
•  B.  Trust account management
•  C.  A potential conflict of interest.   V.R.Pr.C. 1.10
• D.  Advising a client to change the privacy settings on her social media platforms

Question 5

 Earlier this year, I blogged about Andrew Manitsky.  Not only is Andrew in a band, he’s my go-to guy when I have questions related to intellectual property and trademarks.

The 2019 American Music Awards are scheduled for November 24.  The artist who will be honored as the AMA Performer of the Decade planned to perform the songs that helped the artist earn the honor.  Songs that the artist wrote, sang, and made famous.

However, this week, the artist took to social media to allege that the label that owns the rights to the artist’s catalogue is refusing to let the artist perform the artists own songs during the ceremony and, further, has also banned the artist from using the music in an upcoming Netflix documentary about the artist’s career.  The label responded by accusing the artist of disseminating “false information.”

Regular readers will certainly know whose side I’m on!

Name the artist.

Taylor Swift in her on-going battle with Scooter Braun.  The New York Times has the latest.

Five for Friday #182

Welcome to #182!

It’s rare that the blog comes live from the scene of the week’s number.  Of course, it’s appropriate for today to be marked by a rare occasion.  After all, “rare occasion” seems to be a theme in the legal ethics news this week: (1) two lawyers were reprimanded for almost fighting in court; and, (2) three judges were suspended as a result of a late-night fight that led to one of them being shot.

Let’s hope “rare occasion” remains the most accurate descriptor for such conduct.

Anyhow, this morning, I’m live and local from the kitchen table in my dad’s house in Flat Rock, North Carolina.  I’m here for two reasons.

• Tomorrow I’m running the Tryon Half Marathon.
• 82 years ago today, my dad burst onto the scene live & local at Colchester’s Fanny Allen Hospital.

Happy Birthday Dad!

(For you naysayers, 82 is close enough to 182.)

Earlier this morning, I drafted this blog.  Before I hit “post,” I went for a run. I had a nagging thought that I shouldn’t post the draft.  As I ran, I realized I was right.  It was a bit too preachy and self-indulgent. Thankfully, I took time to reflect before posting.  Here’s what I wanted to say.

In 2014, my dad and I ran a 5K in Asheville on Thanksgiving.  My dad won his age group.

Just over two months ago, my dad had open heart surgery.  He’s doing great and rehab is going well.  But, as well as it’s going, it frustrates him a bit.  So far, he’s been limited to walking.  Some of the walks are on the treadmill under the supervision of his rehab providers, others are around his neighborhood.  Yesterday, he told me that, next week, he’s going to ask his doctor if he can start to incorporate jogging into the rehab routine.  This morning, I asked him what his goal is:

• 200 yards.

It might not sound like much, and certainly isn’t a 5K, but my dad’s goal is an important lesson.

Lots of us set goals that we never meet.  If you’re anything like me, the failure to meet a goal often results less from an inability or unwillingness than from a failure to break the goal into manageable steps.  If my dad tried to run a 5K next week, he’d end up on the operating table.  Or worse.  But, by starting with a few hundred yards at a time, he might someday again run the Turkey Trot.

When I speak on attorney wellness, the goals I most often hear lawyers profess are (1) catch up on my work; and (2) improve my work-life balance.  Each is a fantastic goal.  Remember, though, you likely aren’t going to accomplish either by the end of the weekend.  But you can take the first steps.

Somewhere in that pile on your desk, there’s a letter to write or call return.  Write it, make the call.

Saturday morning will be here before you know it . When you wake up, don’t check your work email while you’re having coffee.

The letter, phone call, and 3 minutes away from your email might not sound like much.  But each is a manageable step.  In other words, each is your 200 yards.  Repeated consistently, you’ll reach your goals.  And when you do, thank my dad.

Onto the quiz!

Rules

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

Question 1

A lawyer has a duty to reasonably consult with the client about the means by which the client’s objectives are to be accomplished.

• A.   False.  The lawyer controls the means.
• B.   False.   The lawyer shall abide by a client’s decisions with respect to the means by which the client’s objectives are pursued.
• C.   True.

Question 2

In representing a client, a lawyer _______ not use means that have no substantial purpose other than to embarrass, delay, or burden a third person.

Which is most accurate?

• A.   This is a rule.  And the blank is “shall.”
• B.   This is not a rule. It’s an aspirational comment to one of the rules. And the blank is “should.”

Question 3

A lawyer is holding funds to which both a client and third person claim interests. Their interests are in dispute.  By rule, the lawyer must:

• A.  disburse the funds as directed by the client
• B.   hold the funds until the dispute is resolved
• C.   withdraw from representing the client
• D.   A or C

Question 4

If an attorney calls me with an inquiry and my response includes use of the word “imputed,” what did the attorney most likely call to discuss?

•  A.  Reviewing an adverse party’s social media posts
•  B.  Trust account management
•  C.  A potential conflict of interest
• D.  Advising a client to change the privacy settings on her social media platforms

Question 5

 Earlier this year, I blogged about Andrew Manitsky.  Not only is Andrew in a band, he’s my go-to guy when I have questions related to intellectual property and trademarks.

The 2019 American Music Awards are scheduled for November 24.  The artist who will be honored as the AMA Performer of the Decade planned to perform the songs that helped the artist earn the honor.  Songs that the artist wrote, sang, and made famous.

However, this week, the artist took to social media to allege that the label that owns the rights to the artist’s catalogue is refusing to let the artist perform the artists own songs during the ceremony and, further, has also banned the artist from using the music in an upcoming Netflix documentary about the artist’s career.  The label responded by accusing the artist of disseminating “false information.”

Regular readers will certainly know whose side I’m on!

Name the artist.

 

 

 

Monday Morning Answers #181

Friday’s “Glass Half Full” post is here.  Today is where the rubber hits the road: it’s Monday morning with a winter storm in the forecast.

Friday’s quiz questions are in the post linked above. The answers follow today’s Honor Roll.

Honor Roll

• Karen Allen, Karen Allen Law
• Matthew Anderson, Pratt Vreeland Kennelly & White
• Penny Benelli, Dakin & Benelli
• Mimi Brill, Windham County Public Defender
• Honorable John M. Conroy, United States Magistrate Judge, District of Vermont
• Erin Gilmore, Ryan Smith & Carbine
• Robert Grundstein
• Anthony Iarrapino, Wilschek & Iarrapino
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
• John Leddy, McNeil Leddy & Sheahan
• Mick Leddy, McNeil Leddy & Sheahan
• Tom Little, Little & Cicchetti
• Pam Loginsky, Washington Association of Prosecuting Attorneys
• Jack McCullough, Project Director, Mental Health Law Project
• Jeffrey Messina, Bergeron Paradis Fitzpatrick
• Herb Ogden, Esq.
• Jim Runcie, Ouimette & Runcie
• Jonathan Teller-Elsberg, Vermont Law School, JD Candidate
• Benjamin Traverse, Down Rachlin Martin
• Zachary York, Vermont Superior Court, Chittenden Civil 

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.   even an iota of a chance
• D.   a significant risk.   V.R.Pr.C. 1.7(a)(2).

Question 2

The Vermont Supreme Court declared November as “Access to Justice” month.  By rule, a substantial majority of a lawyer’s pro bono hours should be provided to:

• A.   persons of limited means.
• B.   charitable, religious, civic, community, governmental and educational organizations in matters which are designed primarily to address the needs of persons of limited means.
• C.  A or B.  V.R.Pr.C. 6.1
• D. None of the above.  The rule is quite vague.

Question 3

The rule that prohibits undignified or discourteous conduct that is degrading or disrupting to a tribunal _____________

• A.   applies only in proceedings before a judge or judicial officer.
• B.   applies to any proceeding of a tribunal, including a deposition.  V.R.Pr.C. 3.5, Comment [5]; See this post for how the rule applies when your client disrupts a deposition.
• C.   was recently abolished by the Vermont Supreme Court in a disciplinary decision that concluded that the rule violated the First Amendment to the U.S. Constitution.
• D.  Objection to the premise.  There is no such rule.

Question 4

Which is most accurate?

A client’s failure to abide by the terms of a fee agreement:

• A.   is not grounds for a lawyer to move to withdraw.
• B.   mandates that the lawyer move to withdraw.
• C.   permits the lawyer to move to withdraw.  V.R.Pr.C. 1.16(b)(5)
• D.  is not addressed in the rules of professional conduct.

Question 5

Not sure if you’ve heard, but whistleblowers have been in the news.

The Laundromat is a movie that dropped on Netflix a few weeks ago.  Directed by Steven Soderbergh, it stars Meryl Streep, Antonio Banderas and Gary Oldman.  Reviews are mixed. (glass half-full vs. glass half-empty!)

Anyhow, the movie is based on real-life law firm Mossack Fonseca and a whistleblower’s 2016 leak of 11.5 million confidential documents that detailed the financial information & activity of many of the firm’s wealthiest clients.  The documents tended to show that the firm specialized in creating shell corporations to help its clients hide their vast sums of money.

In April 2016, the New York Times wrote that Mossack Fonseca “was built on assurances of bulletproof privacy for its clients.”  Umm, I guess not so much.

What’s the name that’s been given to collective client documents that were breached and disclosed by the whistleblower?

The Panama Papers

Five for Friday #181

I made a choice this morning.

By way of background, let’s pretend we’re playing Family Feud.  The question is this:

• “Top 3 answers on the board.  Name something that Mike doesn’t like.”

I hadn’t even typed the “e” in “like” before I heard you pound the buzzer!

“Winter.”

It’s numbers 1, 2, and 3.

Nevertheless, when I woke up this morning, I chose to view the glass as half-full.  Granted, had I left a glass on my deck last night, it’d have been half-full of snow at 6AM.  But the fact that the glass would’ve remained half-empty is reason enough to approach the day with a glass-half-full attitude.

Which is why I choose to mention Norman Rockwell in today’s opening.

I’m no art connoisseur.  Besides The Last Supper and album covers, my art knowledge is pretty much limited to Warhol’s soup cans and Norman Rockwell’s Tough Call.

A print hung in our basement for years when I was a kid. It fascinated me.  Not so much as an art fan, but as a sports fan.

It depicts a game between the Pittsburgh Pirates and Brooklyn Dodgers.  With Pittsburgh leading 1-0 as the Dodgers bat in the bottom of the 6th, rain is falling.  As the umpires contemplate whether to call the game, Brooklyn’s manager happily points to the sky as his Pittsburgh counterpart glowers.

The scene always confused me.  Why would the Brooklyn manager be happy that it’s raining? If the game is called, the score would revert to the last completed inning and Pittsburgh would win.

It bothered me for years.  Until I learned that there’s a different interpretation.

The Brooklyn manager isn’t happy that it’s raining . . . he’s happy that the rain is about to stop.  When it does, the game will continue, and his team will have a chance to win.  You can read more about the theory here.

Anyhow, why I am writing about this?

Well, like I said, when I woke up to the weather, I chose to take a “glass half-full” approach. Then, as I researched potential topics for today’s intro, I learned that Norman Rockwell died 41 years ago today.  Which was very ironic.  Because, whenever I think of Rockwell, I immediately think of Tough Call.  And, to me, the work perfectly captures the moment in which you have either a “glass half-full” or “glass half-empty” response to the weather.

I’m not just a little stitious, I’m superstitious.   I interpret stumbling across a Rockwell reference mere moments after choosing to take glass-half full approach to the weather to confirm that I made the right choice.

There are different ways to choose to interpret most everything in life.  To that end, may your glass never be less than half-full.

Onto the quiz!

Rules

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

Question 1

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.   even an iota of a chance
• D.   a significant risk

Question 2

The Vermont Supreme Court declared November as “Access to Justice” month.  By rule, a substantial majority of a lawyer’s pro bono hours should be provided to:

• A.   persons of limited means.
• B.   charitable, religious, civic, community, governmental and educational organizations in matters which are designed primarily to address the needs of persons of limited means.
• C.  A or B.
• D. None of the above.  The rule is quite vague.

Question 3

The rule that prohibits undignified or discourteous conduct that is degrading or disrupting to a tribunal _____________

• A.   applies only in proceedings before a judge or judicial officer.
• B.   applies to any proceeding of a tribunal, including a deposition.
• C.   was recently abolished by the Vermont Supreme Court in a disciplinary decision that concluded that the rule violated the First Amendment to the U.S. Constitution.
• D.  Objection to the premise.  There is no such rule.

Question 4

Which is most accurate?

A client’s failure to abide by the terms of a fee agreement:

• A.   is not grounds for a lawyer to move to withdraw.
• B.   mandates that the lawyer move to withdraw.
• C.   permits the lawyer to move to withdraw.
• D.  is not addressed in the rules of professional conduct.

Question 5

Not sure if you’ve heard, but whistleblowers have been in the news.

The Laundromat is a movie that dropped on Netflix a few weeks ago.  Directed by Steven Soderbergh, it stars Meryl Streep, Antonio Banderas and Gary Oldman.  Reviews are mixed. (glass half-full vs. glass half-empty!)

Anyhow, the movie is based on real-life law firm Mossack Fonseca and a whistleblower’s 2016 leak of 11.5 million confidential documents that detailed the financial information & activity of many of the firm’s wealthiest clients.  The documents tended to show that the firm specialized in creating shell corporations to help its clients hide their vast sums of money.

In April 2016, the New York Times wrote that Mossack Fonseca “was built on assurances of bulletproof privacy for its clients.”  Umm, I guess not so much.

What’s the name that’s been given to collective client documents that were breached and disclosed by the whistleblower?

Monday Morning Answers #180

Welcome to another week.  Friday’s questions are here.  The answers follow today’s Honor Roll.

Honor Roll

• Karen Allen, Esq.; Karen Allen Law
• Evan Barquist, Montroll Backus & Oettinger
• Penny Benelli, Dakin & Benelli
• Mimi Brill, Windham County Public Defender
• CeCe Conrad, Costello, Valente & Gentry
• Erin Gilmore, Ryan Smith & Carbine
• Laura Gorsky, Esq.
• Robert Grundstein, Esq.
• Glenn Jarrett, Jarrett & Luitjens
• Aileen Lachs, Mickenberg, Dunn, Lachs & Smith
• John Leddy, McNeil Leddy & Sheahan
• Jordana Levine, Marsicovetere & Levine
• Tom Little, Little & Cicchetti
• Lon McClintock, McClintock Law Offices
• Jack McCullough, Vermont Legal Aid, Project Director – Mental Health Law Project
• Karen Merino, Vermont Law School, JD Candidate
• Jeff Messina, Bergeron Paradis Fitzpatrick
• Hal Miller, First American
• Herb Ogden, Esq.
• Jim Runcie, Ouimette & Runcie
• Audrey Sander, Mariscovetere & Levine
• Jonathan Teller-Elsberg, Vermont Law School, JD Candidate
• Jack Welch, Esq.
• Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

Which lawyer will disciplinary counsel likely treat differently than the others?  A lawyer who:

• A.   works for a contingent fee in a criminal case.
• B.   fails to keep copies of his advertisements for at least two years.
• C.   engages in “puffery” during negotiations with opposing counsel.
• D.  deposits her own money in trust, but only in an amount necessary to cover bank charges that she knows will occur.

A is prohibited by rule.  B is not a rule.  C and D are not prohibited.

Question 2

Lawyer represents Brady in Brady v. Mayfield.  Lawyer knows that Mayfield is represented by counsel.

Lawyer answers a phone call.  It’s Mayfield.  Before Lawyer can react, Mayfield asks if Lawyer has a few minutes to discuss settlement.  Mayfield adds “i’m calling you directly because I’m trying to keep my legal bills down.  Once we resolve this, I’ll get with my attorney and have her write it up”

You may assume that Mayfield’s lawyer has not consented to Lawyer communicating directly with Mayfield.  Which is most accurate?

• A.   Lawyer may negotiate with Mayfield.  The rule doesn’t apply when a represented party voluntarily initiates communication.
• B.   Lawyer must immediately terminate the call.  Rule 4.2, Comment 2

Question 3

Rule 1.2(d) prohibits a lawyer from assisting a client to violate the law.  The rule draws no distinction between state and federal law.  As such, two years ago, Vermont adopted a comment to the rule.

The new comment makes it clear that Vermont lawyers can provide advice and assistance to clients as long as the lawyer (1) reasonably believes that the conduct in permitted under state law, and (2) advises the client of the potential consequences of the conduct under federal law.

The new comment is aimed at lawyers who assist clients on matters related to Vermont’s statutes, rules, and regulations on ______________.

Marijuana/Cannabis

Question 4

Firm has long represented two clients:  A and B.   For years, Client A has worked with Lawyer, while Client B has worked with Attorney.

A intends to sue B.  Both A and B want their long-time counsel to represent them and, as such, are willing to waive the conflict.

Under Vermont’s rule, if A and B consent, can Lawyer and Attorney represent their long-time clients in A vs. B.?

• A.  No.   Rule 1.7(b).
• B.  Yes, if each gives informed consent, confirmed in writing.
• C.   Yes, if each gives informed consent, confirmed in writing and each is advised of the desirability of checking with outside counsel before giving consent.
• D.  Yes, if each gives informed consent, confirmed in writing and Firm employs reasonable measures to screen A and B from access to each other’s files/client information.

Question 5

Today’s question is inspired by the lyrics posted in the window at Hen of the Wood.

This lawyer was 20 when he graduated from Columbia Law School. He had to wait until he was 21 to be admitted to the bar. Three years later, he gained national prominence for his role as an Assistant United State Attorney in the federal government’s prosecution of Ethel and Julius Rosenberg.

He parlayed that into a job as chief counsel to United States Senator Joseph McCarthy, where he joined Robert Kennedy as counsel on Senator McCarthy’s most well-known committee.

Later, after leaving McCarthy’s office, he had a long career in private practice. Among others, he represented Donald Trump’s business interests and the New York Yankees in litigation that followed the famous George Brett “Pine Tar” incident.

In 1986, the State of New York disbarred him for misappropriation of client funds, lying on his bar application, and pressuring a dying a client to change a will to leave the client’s fortune to himself (the lawyer).

People my age might have learned about him by listening to Billy Joel’s We Didn’t Start the Fire.

Name the lawyer.

Roy Cohn

Five for Friday #180

Happy Friday!

So, 180.

As I pondered today’s post last night, my thoughts turned to “180 degrees” and how life would be completely different but for a single choice made somewhere along the way.  I considered a post in which I shared a decision I made that I wish I hadn’t.  One that kept me from travelling a different path that, looking back, I wish I was on.

I think we all have moments where we wonder if things would’ve turned out differently “if only I’d done THAT instead.”  Or, moments in which we chastise ourselves and lament “if only I could do it all over again.”  My sense is that many within the legal profession are nodding knowingly.

The point of today’s blog is to take the opposite approach.  To remember all the good in my life and to be thankful for the critical decisions (and people who helped me to make them) that led me down a path I’m fortunate to be on.  I’m no expert, but, to me, gratefulness is more likely to increase wellness than is regret.  So, I vow to do my best adopt an outlook that is 180 degrees different from “if only.”  That is, no matter what happens, to control what I can control: my approach to what happens next, with a positive approach far healthier than a negative.

And then I remembered something that I saw yesterday.

My office is across the street from Hen of the Wood.  The restaurant has been closed since August 6 due to a fire. I’m sure the owners wish the fire never happened.  But, it did and now all that they can control is their reaction.  I love their outlook.

First, check out the notice on their website.  The first two things that they want you to know? Zero damage and everyone was evacuated safely.  In other words, things to be grateful for.

More importantly (at least to a blogger whose posts regularly reference Seinfeld, The Office, and lyrics) check out the pictures that recently appeared in the large windows at Hen of the Wood.

First, we have an image The Fire episode of Seinfeld. It’s George Costanza shoving an elderly woman with a walker out of the way as he flees the small kitchen fire that started at his girlfriend’s son’s birthday party.  Alas, even before the embers had stopped smoking, George was Robin’s ex-boyfriend.

Second, Dwight Schrute in The Fire episode of The Office.  The Assistant (to the) Regional Manager is proudly displaying the cause of the fire that required Dunder Mifflin employees to evacuate office: a pita that Ryan accidentally cooked on the toaster oven’s “oven” setting instead of “toast.”

Finally, although not as easy to see, in a third window, Hen of the Wood hung a giant poster of the lyrics to Billy Joel’s We Didn’t Start the Fire:

The folks who manage Hen of the Wood had a few different ways to react to the fire that has left them closed for nearly three months. I applaud them for reacting in a way that, quite likely, is 180 degrees different than what I would’ve done.  Their gratefulness and humor are terrific reminders that while we can’t always control what happens to us, we can always control our reaction.

Onto the quiz!

Rules

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

Question 1

Which lawyer will disciplinary counsel likely treat differently than the others?  A lawyer who:

• A.   works for a contingent fee in a criminal case.
• B.   fails to keep copies of his advertisements for at least two years.
• C.   engages in “puffery” during negotiations with opposing counsel.
• D.  deposits her own money in trust, but only in an amount necessary to cover bank charges that she knows will occur.

Question 2

Lawyer represents Brady in Brady v. Mayfield.  Lawyer knows that Mayfield is represented by counsel.

Lawyer answers a phone call.  It’s Mayfield.  Before Lawyer can react, Mayfield asks if Lawyer has a few minutes to discuss settlement.  Mayfield adds “i’m calling you directly because I’m trying to keep my legal bills down.  Once we resolve this, I’ll get with my attorney and have her write it up”

You may assume that Mayfield’s lawyer has not consented to Lawyer communicating directly with Mayfield.  Which is most accurate?

• A.   Lawyer may negotiate with Mayfield.  The rule doesn’t apply when a represented party voluntarily initiates communication.
• B.   Lawyer must immediately terminate the call.

Question 3

Rule 1.2(d) prohibits a lawyer from assisting a client to violate the law.  The rule draws no distinction between state and federal law.  As such, two years ago, Vermont adopted a comment to the rule.

The new comment makes it clear that Vermont lawyers can provide advice and assistance to clients as long as the lawyer (1) reasonably believes that the conduct in permitted under state law, and (2) advises the client of the potential consequences of the conduct under federal law.

The new comment is aimed at lawyers who assist clients on matters related to Vermont’s statutes, rules, and regulations on ____________________.

Question 4

Firm has long represented two clients:  A and B.   For years, Client A has worked with Lawyer, while Client B has worked with Attorney.

A intends to sue B.  Both A and B want their long-time counsel to represent them and, as such, are willing to waive the conflict.

Under Vermont’s rule, if A and B consent, can Lawyer and Attorney represent their long-time clients in A vs. B.?

• A.  No.
• B.  Yes, if each gives informed consent, confirmed in writing.
• C.   Yes, if each gives informed consent, confirmed in writing and each is advised of the desirability of checking with outside counsel before giving consent.
• D.  Yes, if each gives informed consent, confirmed in writing and Firm employs reasonable measures to screen A and B from access to each other’s files/client information.

Question 5

Today’s question is inspired by the lyrics posted in the window at Hen of the Wood.

This lawyer was 20 when he graduated from Columbia Law School. He had to wait until he was 21 to be admitted to the bar. Three years later, he gained national prominence for his role as an Assistant United State Attorney in the federal government’s prosecution of Ethel and Julius Rosenberg.

He parlayed that into a job as chief counsel to United States Senator Joseph McCarthy, where he joined Robert Kennedy as counsel on Senator McCarthy’s most well-known committee.

Later, after leaving McCarthy’s office, he had a long career in private practice. Among others, he represented Donald Trump’s business interests and the New York Yankees in litigation that followed the famous George Brett “Pine Tar” incident.

In 1986, the State of New York disbarred him for misappropriation of client funds, lying on his bar application, and pressuring a dying a client to change a will to leave the client’s fortune to himself (the lawyer).

People my age might have learned about him by listening to Billy Joel’s We Didn’t Start the Fire.

Name the lawyer.