Monday Morning Answers

Welcome to the week!  Every great work week starts on Monday!

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

Honor Roll

• Karen Allen, Esq.
• Evan Barquist, Montroll Backus & Oettinger
• Penny Benelli, Dakin & Benelli
• Alberto Bernabe, Professor, John Marshall Law School
• Beth DeBernardi, Administrative Law Judge, VT. Dept of Labor
• Andrew Delaney, Martin Delaney & Ricci Law Group
• Cary Dube, Bergeron, Paradis, Fitzpatrick
• Erin Gilmore, Ryan Smith & Carbine
• Laura Gorsky, Esq.
• Benjamin Gould, Paul Frank & Collins
• Bob Grundstein, Esq.
• Anthony Iarrapino, Wilschek & Iarrapino
• Glenn Jarrett, Jarrett & Luitjens
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Jeanne Kennedy, JB Kennedy Associates, Blogger’s Mom
• Elizabeth Kruska, President-Elect, VBA Board of Managers
• John Leddy, McNeil, Leddy, & Sheahan
• Lon McClintock, McClintock Law Offices
• Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
• Jeffrey Messina, Bergeron Paradis Fitzpatrick
• Hal Miller, First American
• Kristen Shamis, Monaghan, Safar, Ducham
• Jay Spitzen, Esq.
• Zachary York, Vermont Superior Court, Civil Division

Answers

Question 1

In Vermont, if a lawyer is precluded from representing a client due to a conflict with another client or a former client, the general rule is that the conflict ___________ imputed to other lawyers in the same firm.

• A.  is  See, V.R.Pr.C. 1.10
• B.  is not

Question 2

There’s a rule that requires lawyers to provide clients with diligent and prompt representation.  A comment to the rule suggests that a sole practitioner’s duty of diligence may include _____________:

• A.   paying a bookkeeper to reconcile the trust account
• B.   transitioning to a cloud-based practice management system
• C.  adopting a succession plan.  V.R.Pr.C. 1.3, Comment [5]
• D.  all the above

Question 3

Attorney & Lawyer both represent Client in the same matter, but do not work in the same firm.  Client agrees that they may share in the fee.  Client’s agreement is in writing and the total fee is reasonable.

True or False:  for the fee division to comply with the rule, it must be in proportion to the services that each performed.

False.  Either (a) the fee must be in proportion to the services that each perform; or (b) each lawyer must assume joint responsibility for the representation.  V.R.Pr.C. 1.5(e)(1).  Per Comment [7] “joint responsibility for the representation entails financial and ethical responsibility for the representation as if the lawyers were associated in a partnership.”

Question 4

This question is probably not fair. But I’m out of ideas, running out of time, and, further, it’s an issue I think we’ll soon be discussing.

Client asks whether you use “cold storage” or a “hot wallet.”  Client assumes you accept payment via:

• A.  Venmo
• B.  ACH Transfer
• C.  Blockchain
• D.  Cryptocurrency

In 2018, I blogged about a Nebraska advisory opinion that addresses issues related to accepting payment via cryptocurrency.  Bitcoin, for instance, is cryptocurrency.  One of the questions: may a lawyer hold cryptocurrency in trust?  I noted:

“Yes, but remember: bitcoins are property, not actual currency.  Rule 1.15 requires lawyers to safeguard client property.  To comply with the duty to safeguard cryptocurrency, a lawyer would need a secure digital wallet.  Of course, if the lawyer accepts cryptocurrency and converts it to U.S. dollars, the funds, if not yet earned, must go into trust.”

Question 5

Legal ethics in the news again!

There’s a rule on trial publicity.  Generally, it prohibits extrajudicial statements that a lawyer knows or should know will have a substantial likelihood of materially predjucing a proceeding.  There’s also a rule that prohibits ex parte communications with jurors.

Donna Rotunno is an attorney who is currently representing a client in a high-profile criminal trial.  The case went to the jury on Tuesday, two days after Newsweek published an opinion piece authored by Rotunno. In it, she wrote:

“I implore the members of this jury to do what they know is right and was expected of them from the moment they were called upon to serve their civic duty in a court of law.”

The prosecutor called the opinion piece “completely, 100% inappropriate behavior. It borders on tampering with the jury.”  Imposing a gag order, the presiding judge said:

“Defense team you are ordered to refrain from communicating with the press until there is a verdict in the case.  I would caution you about the tentacles of your public relations juggernaut.”

Who is Attorney Rotunno’s client in the case?

Harvey Weinstein

Five for Friday #192

Happy Friday!

Today I choose to look on the bright side:  it might be cold, but the sun is out and, well, at least it’s a dry cold!

Looking for topics for today’s intro, I found an intriguing connection involving today’s date.

On February 21, 1975, John Mitchell, John Erhlichman and H.R. Haldeman were sentenced to prison after having been convicted of crimes committed during the Watergate scandal.

I was 7 years old at the time.  This morning, it struck me at how little I know.

Of course, having mentioned it at several seminars, I’m aware of the impact that Watergate had on legal ethics & professional responsibility.  As the ABA Journal notes here, the scandal resulted in both the profession’s move to the Model Rules of Professional Conduct and the requirement that lawyers pass the MPRE to be admitted.  Still, if you’d have told me this morning that two of Mitchell, Erhlichman and Haldeman were lawyers, I’d have gotten Mitchell, but it would’ve been a coin flip as to the other. *

Also, today is Barbara Jordan’s birthday.

I didn’t know that until Google informed me this morning.  Frankly, while generally aware that Jordan served in Congress, I had no idea of her place in history. Among other notable accomplishments, Jordan was the first African-American woman elected to the Texas Senate and the first African-American from a southern state elected to the United States House of Representatives.

In addition, Jordan was a lawyer.  Not just any old lawyer, but a skilled orator.  According to American Rhetoric, Jordan gave two of the top 100 speeches of the 20th century.  Talk about satisfying the duty of competence!

Per American Rhetoric, Jordan’s Keynote Address to the 1976 Democratic National Convention was #5. The other?  Well, to me, it’s a speech that makes for the intriguing connection between February 21, Jordan, and Watergate.

The speech is called Statement on the Articles of Impeachment.  It was the opening statement to the House Judiciary Committee as it considered whether to impeach President Nixon.  It came in as American Rhetoric’s 13th most important speech of the last century.

I find it incredibly intriguing that an event that had such a profound impact on legal ethics & professional responsibility has not one, but two ties to February 21. As for a larger point, I don’t think I have one.  Still, I opened this post by referring to the weather and choosing to focus on the brighter side, so I’ll close by doing the same.

Yes, I will continue to reference Watergate when I speak on the history of legal ethics and professional responsibility.  I will reiterate that at least 13 lawyers were disbarred or suspended and that 11 were convicted of crimes.  However, going forward, I will now be sure to mention the brighter side: Barbara Jordan and her contributions not only to the legal profession, but to society.

Choose the bright side.

*It was Erhlichman.

Onto the quiz!

Question 1

In Vermont, if a lawyer is precluded from representing a client due to a conflict with another client or a former client, the general rule is that the conflict ___________ imputed to other lawyers in the same firm.

• A.  is
• B.  is not

Question 2

There’s a rule that requires lawyers to provide clients with diligent and prompt representation.  A comment to the rule suggests that a sole practitioner’s duty of diligence may include _____________:

• A.   paying a bookkeeper to reconcile the trust account
• B.   transitioning to a cloud-based practice management system
• C.  adopting a succession plan
• D.  all the above

Question 3

Attorney & Lawyer both represent Client in the same matter, but do not work in the same firm.  Client agrees that they may share in the fee.  Client’s agreement is in writing and the total fee is reasonable.

True or False:  for the fee division to comply with the rule, it must be in proportion to the services that each performed.

Question 4

This question is probably not fair. But I’m out of ideas, running out of time, and, further, it’s an issue I think we’ll soon be discussing.

Client asks whether you use “cold storage” or a “hot wallet.”  Client assumes you accept payment via:

• A.  Venmo
• B.  ACH Transfer
• C.  Blockchain
• D.  Cryptocurrency

Question 5

Legal ethics in the news again!

There’s a rule on trial publicity.  Generally, it prohibits extrajudicial statements that a lawyer knows or should know will have a substantial likelihood of materially predjucing a proceeding.  There’s also a rule that prohibits ex parte communications with jurors.

Donna Rotunno is an attorney who is currently representing a client in a high-profile criminal trial.  The case went to the jury on Tuesday, two days after Newsweek published an opinion piece authored by Rotunno. In it, she wrote:

“I implore the members of this jury to do what they know is right and was expected of them from the moment they were called upon to serve their civic duty in a court of law.”

The prosecutor called the opinion piece “completely, 100% inappropriate behavior. It borders on tampering with the jury.”  Imposing a gag order, the presiding judge said:

“Defense team you are ordered to refrain from communicating with the press until there is a verdict in the case.  I would caution you about the tentacles of your public relations juggernaut.”

Who is Attorney Rotunno’s client in the case?

Monday Morning Answers

Welcome to Monday.  Friday’s questions are here.  Today’s answers follow the Honor Roll.

Honor Roll

• Karen Allen, Esq.; Karen Allen Law
• Matthew Anderson, Pratt Vreeland Kennelly & White
• Evan Barquist, Montroll Backus & Oettinger
• Erin Gilmore, Ryan Smith & Carbine
• Laura Gorsky, Esq.
• Robert Grundstein, Esq.
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
• Jeanne Kennedy,  JB Kennedy Associates, Blogger’s Mom
• Mark Kennedy, Father of the Blogger
• 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
• Jeffrey Messina, Bergeron Paradis Fitzpatrick
• Hal Miller, First American
• Herb Ogden, Esq.
• Dan Richardson, Tarrant Gillies & Richardson
• Jim Runcie, Ouimette & Runcie
• Jay Spitzen, Esq.
• Robyn Sweet, CORE Registered Paralegal, Cleary Shahi  & Aicher
• Jason Warfield, Vermont Law School, Class of 2020
• Thomas Wilkinson, Jr., Cozen O’Connor
• Zachary York, Vermont Superior Court, Chittenden Civil 

Answers

Question 1

The Vermont Bar Association’s Pro Bono Committee meets next week to review nominations for the 2020 Pro Bono Award. I chair the committee, so if you want to nominate a lawyer, email me the nomination.

By rule, lawyers are expected to provide _________________:

• A.   pro bono services to those in need.
• B.   50 hours of pro bono legal services.  V.R.Pr.C. 6.1
• C.   60 hours of pro bono legal services.
• D.   a reasonable amount of pro bono legal services.

Question 2

A lawyer called me with an inquiry. I listened, then responded “the first question is whether the new matter is the same as or substantially related to the old matter.”

Given my response, the lawyer called to discuss the rule on:

• A.  candor to a tribunal.
• B.  communication with a juror.
• C.  communication with a represented person.
• D.  conflicts of interest.  V.R.Pr.C. 1.9(a)

Question 3

Which is expressed in a different rule than the others?

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

B is in Rule 3.5, the rule that addresses communicating with jurors.  A, C, and D are expressed in Rule 4.3, the rule that sets out a lawyers duties when dealing with an unrepresented person.

Question 4

At a CLE, I said “the rule includes 3 exceptions:

1. the testimony relates to an uncontested issue;
2. the testimony relates to legal services provided in the case; or
3. disqualifying the lawyer would cause substantial hardship to the client.”

I was discussing the rule that applies when a necessary witness in a trial is _______:

• A.   a lawyer who is representing a party to the same trial.  V.R.Pr.C. 3.7
• B.   a former client of a lawyer who is representing a party to the same trial.
• C.   a current client of a lawyer who is representing a party to the same trial.
• D.   a lawyer who used to be the presiding judge’s law partner.

Question 5

With Captain Kennedy in mind this week, a two-part question:

In an argument made during a jury trial that took place in 1770, a criminal defense attorney said:

• “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence . . . It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished. But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, ‘whether I do good or whether I do evil is immaterial, for innocence itself is no protection,’ and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.”

Name the lawyer and the event that resulted in the lawyer’s clients being charged.

John Adams.  The Boston Massacre.

 

 

Five for Friday #191

Welcome to the 191st #fiveforfriday legal ethics quiz!

191 makes me think of I-91.  And, today, I-91 makes me think of last week’s drive to Brattleboro, a trip that I made down I-91 with my dad & my brother.  We went to visit Uncle Edmund.

Uncle Edmund is my dad’s older brother.  They grew up in Burlington’s Old North End, sons of Irish parents enthusiastically committed to the Irish stereotype.  As a result, by the time my Aunt Mary Ellen came along, she was whisked away to live with her Aunt Kate.

He’s also Ed Kennedy.  Several Vermont lawyers and judges know him as the long-time biology teacher at St. Johnsbury Academy who, in his later years, volunteered as a Guardian Ad Litem in the Caledonia County courts.

My uncle fascinates me.  Endlessly curious and interested, he knows something about everything. Endlessly Irish, he’s willing to share everything that he knows about something.  Fortunately, his knowledge is topped only by a captivating manner that, on the very rare occasion when he has no idea what’s he’s talking about, allows those twinkling eyes to let him slip some Irish b******t by you.  Uncle Edmund is the perfect person to find two stools down, even on those nights that you stop by the bar fully intending to drink alone.

After graduating from Cathedral High School, Uncle Edmund went to St. Mike’s, joined the Army, was stationed in Korea, and married Aunt Nancy.  They lived as newlyweds on North Avenue, raised my 3 cousins in St. Johnsbury, and eventually moved to East Barnet. All the while, Uncle Edmund marked the seasons not by the calendar, but by whether he needed a blanket to sleep at night.

He’s both a hunter and a naturalist, as adept at identifying, catching, and shooting all types of fish, fowl, and mammals as he is at protecting and conserving their natural environs.  Related, Uncle Edmund is a noted creator & connoisseur of dishes that would make most stomachs turn.  I’ve never figured out whether his tales of having rushed road-kill home to cook it while still fresh are true, or part of the pure joy he took in causing a reaction.

Uncle Edmund is also a soldier.  He’s a Captain in Samuel Herrick’s 1st Company of the Green Mountain Rangers.  For as long as I can remember, Captain Kennedy & Herrick’s Rangers have reenacted Revolutionary War campaigns, skirmishes and battles down to the most minute of details.  If transported today back to 1775, Uncle Edmund would not only survive but thrive.  Until very recently, he remained capable of both feeding a regiment with only Revolutionary-era utensils & food sources, and ably fighting the Crown with his trusted musket and other weapons of the times.

Finally, I’d be remiss to omit that while he left the Old North End, Uncle Edmund never forgot his roots. An Irish-Catholic Democrat not far removed from relatives who were new Americans, he’s long-championed even newer Americans.  Lately, his advocacy has been from behind the walker he needs to navigate the halls of the various facilities in which he’s lived; a walker he grudgingly accepted, and to which he proudly plastered his “Bernie” sticker.

Oh, and his 80th birthday was a keg party.

I will never forget the gusto with which Uncle Edmund lives every aspect of his life.  A hail fellow well met with a quick wit and devilish jokes; strangers were but friends he’d yet to make.

Today, he’s not well.  At 84, he’s in a home in Brattleboro, where the only good thing about the Alzheimer’s that’s attacking his beautiful mind is that it appears to have left him unaware of the cancer that’s ravaging his body.  Neither has taken the twinkle from his eye.

Again, when we visited, it was my dad, my brother, and me.  I’m not sure that Uncle Edmund knew us.  In fact, as we chatted, he confided to us that he was expecting three visitors that day but had no idea who they were.  Then, undeterred by his situation, he burst into that wonderfully robust laugh that causes his eyes not only to crinkle, but to water so much that it looks like he’s crying.

Yet, while not entirely sure who we were, his spirit was on full display. Struggling to understand my dad’s question as to whether he wanted to eat in his room or in the facility’s dining area, my brother simplified it: “do you want to eat on your bed or in the mess hall?”  He yelled “the mess hall!”

So that’s where we took him, to the mess hall.  And that’s where we left him, at a table in the cafeteria, waiting for lunch.

Even by Ed’s standards, the menu wasn’t appetizing. So, I hope that in his mind, it was an all-you-can-eat wild game dinner, and bottomless pints of Ballantine Ale.

To Uncle Edmund!

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

The Vermont Bar Association’s Pro Bono Committee meets next week to review nominations for the 2020 Pro Bono Award. I chair the committee, so if you want to nominate a lawyer, email me the nomination.

By rule, lawyers are expected to provide _________________:

• A.   pro bono services to those in need.
• B.   50 hours of pro bono legal services
• C.   60 hours of pro bono legal services.
• D.   a reasonable amount of pro bono legal services.

Question 2

A lawyer called me with an inquiry. I listened, then responded “the first question is whether the new matter is the same as or substantially related to the old matter.”

Given my response, the lawyer called to discuss the rule on:

• A.  candor to a tribunal.
• B.  communication with a juror.
• C.  communication with a represented person.
• D.  conflicts of interest.

Question 3

Which is expressed in a different rule than the others?

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

Question 4

At a CLE, I said “the rule includes 3 exceptions:

1. the testimony relates to an uncontested issue;
2. the testimony relates to legal services provided in the case; or
3. disqualifying the lawyer would cause substantial hardship to the client.”

I was discussing the rule that applies when a necessary witness in a trial is _______:

• A.   a lawyer who is representing a party to the same trial.
• B.   a former client of a lawyer who is representing a party to the same trial.
• C.   a current client of a lawyer who is representing a party to the same trial.
• D.   a lawyer who used to be the presiding judge’s law partner.

Question 5

With Captain Kennedy in mind this week, a two-part question:

In an argument made during a jury trial that took place in 1770, a criminal defense attorney said:

• “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence . . . It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished. But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, ‘whether I do good or whether I do evil is immaterial, for innocence itself is no protection,’ and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.”

Name the lawyer and the event that resulted in the lawyer’s clients being charged.

 

 

Monday Morning Answers #190

Welcome to Monday!

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

Thanks for all the stories about school closings!  From a few of Burlington’s oldest AM stations, to the scroll on the tv screen.  Loved them all!

Honor Roll

• Evan Barquist, Montroll Backus & Oettinger
• Geoffrey Bok, Esq.
• Benjamin Gould, Paul Frank & Collins
• Laura Gorsky, Esq.
• Bob Grundstein, Esq.
• Mark Heyman, General Counsel, Logic Supply
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
• Jeanne Kennedy, JB Kennedy Associates, Mother of the Blogger
• 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 Title
• Jim Runcie, Ouimette & Runcie
• Jay Spitzen, Esq.
• Robyn Sweet, CORE Registered Paralegal, Cleary Shahi  & Aicher
• Jonathan Teller-Elsberg, Vermont Law School, JD Candidate
• Zachary York, Vermont Superior Court, Chittenden Civil 

Answers

Question 1

In legal ethics, the word “imputed” is most often associated with:

• A.   The advertising rules
• B.   Interest earned on lawyer trust accounts
• C.  Conflicts of Interest.  See, V.R.Pr.C. 1.10
• D.  Technology & The Duty of Competence

Question 2

At a CLE, I answered a question by saying “the rule is this: if it’s yours, get it out.”

What general topic was the question about?

Trust Account Management/Commingling funds.  See, V.R.Pr.C. 1.15(a), and my blog post Don’t Commingle

Question 3

Under the Rules of Professional Conduct, which is treated differently than the others?

• A.  whether to settle.  See, Rule 1.2(a). This is one of the decisions left to the client.  B & C are left to the lawyer’s discretion in consultation with the client.
• B.  whether to depose a particular witness.
• C.  whether to file a motion to dismiss.
• D.  Trick question. The rules treat each the same.

Question 4

In a dispute between Plaintiff and Organization, Plaintiff’s counsel has actual knowledge that Attorney represents Organization.  Without providing notice to Attorney or asking permission, Plaintiff’s counsel interviews a former employee of Organziation about the matter that is the subject of the dispute.

Which is most accurate under Vermont’s Rules of Professional Conduct:

• A. Plaintiff’s counsel did not violate the rules.  V.R.Pr.C. 4.2, Comment [7] (“Consent of the organization’s lawyer is not required for communication with a former constituent.”)
• B. Plaintiff’s counsel violated the rules.
• C.  Whether it’s a violation depends on whether former employee was in “the control group.”
• D. Whether it’s a violation depends on whether the interview was before or after a complaint had been filed and served.

Question 5

Real life professional responsibility & ethics!

Later today in San Francisco, opening statements will begin in a $1 billion trade secrets case.  Last Friday, the judge denied the plaintiff’s attorneys’ motion to withdraw, a motion in which they argued that they were “unable to further represent plaintiff and cannot try the case.”  The attorneys added that their obligations to maintain client confidences prevented them from providing the court with additional details.

Once the trial begins, it’s expected that a lawyer who used to represent the plaintiff will testify.  Plaintiff alleges that the lawyer lost or destroyed e-mails that are critical to the case.

The case revolves around the plaintiff’s claim that the defendants stole his idea for a “limo timeshare service” and developed it into their incredibly successful business.

What business did the defendants develop?

UBER TECHNOLOGIES (The “Uber App”).  Note: per The Verge, the case settled this weekend.

Five for Friday #190: Snow Days, AM Radio, and Box Scores

We didn’t know about a world-wide-web,

was a whole different game being played back when I was a kid.

~ Everclear, AM Radio

************************************

Last night, a friend texted that her 9-year old’s school had already canceled for today.  It made me nostalgic.  I remained so when i woke up, reminiscing about some of the things I miss from when I was a kid.  Among them, snow days.  More on that in a moment.

First, as I wistfully made coffee, I thought of how I miss reading box scores. Back in the days of trudging uphill through blizzards on the way to & from school, neither the internet nor ESPN was a thing.  Kids often had no idea how their favorite players & teams had fared until they woke up and checked the daily box scores.  In my house, that meant a race for the sports section.  Losing stunk, the result a maddening wait at the breakfast table while my dad, my mom,* or my brother read every last word 36 times just to keep from having to pass the paper to me.

(* – yes, she likes sports, but as many Burlington Free Press readers remember, the sports section often appeared at the back of the “Local & State” section.  When it did, my mom almost always won.)

Anyhow, if I lost, I had one rule: DO NOT TELL ME ANYTHING.  I’m not kidding.  I would break into sob-filled temper tantrums if one of my family members said something as benign as “make sure to check out the Red Sox box score.”

I miss those days.  Which brings me back to my friend and her kid’s school being canceled.

In her district, as I assume is the case in most, the school notifies parents of a snow day via robocall.  Think about that – robocall!!  Like box scores in newspapers, I miss how we’d learn it was a snow day: by radio, the morning of.

Some of you must remember those mornings. With the benefit of hindsight, it seems that the thrill was the adrenaline rush that came with the anticipation that school MIGHT be canceled.  We’d wake up, jump to the window to check if last night’s forecast had come true, and, if even a flake had fallen, run for the radio.

Then we’d wait.  And wait & wait & wait until the DJ finally got back to the day’s closings.

Given that the list was read alphabetically, we South Burlington kids had to wait even longer. Still, as a kid in winter, not much was more exciting than finally hearing “all South Burlington schools are closed today.”

Similarly, not much was as stomach-sinking as “Shelburne Elementary School, Shoreham Elementary School and . . .  Swanton Elementary School, all closed today.”  Not even my Dad blurting “the Sox game ended too late to get the box score in.”

I understand that the robocall-the-night-before helps parents to plan.  It’s 100% the way to go.  Still, there’s something about memories of those early-morning announcements of school closings that takes me back.  The days of AM radio weren’t so bad.

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

In legal ethics, the word “imputed” is most often associated with:

• A.   The advertising rules
• B.   Interest earned on lawyer trust accounts
• C.  Conflicts of Interest
• D.  Technology & The Duty of Competence

Question 2

At a CLE, I answered a question by saying “the rule is this: if it’s yours, get it out.”

What general topic was the question about?

Question 3

Under the Rules of Professional Conduct, which is treated differently than the others?

• A.  whether to settle.
• B.  whether to depose a particular witness.
• C.  whether to file a motion to dismiss.
• D.  Trick question. The rules treat each the same.

Question 4

In a dispute between Plaintiff and Organization, Plaintiff’s counsel has actual knowledge that Attorney represents Organization.  Without providing notice to Attorney or asking permission, Plaintiff’s counsel interviews a former employee of Organziation about the matter that is the subject of the dispute.

Which is most accurate under Vermont’s Rules of Professional Conduct:

• A. Plaintiff’s counsel did not violate the rules.
• B. Plaintiff’s counsel violated the rules.
• C.  Whether it’s a violation depends on whether former employee was in “the control group.”
• D. Whether it’s a violation depends on whether the interview was before or after a complaint had been filed and served.

Question 5

Real life professional responsibility & ethics!

Later today in San Francisco, opening statements will begin in a $1 billion trade secrets case.  Last Friday, the judge denied the plaintiff’s attorneys’ motion to withdraw, a motion in which they argued that they were “unable to further represent plaintiff and cannot try the case.”  The attorneys added that their obligations to maintain client confidences prevented them from providing the court with additional details.

Once the trial begins, it’s expected that a lawyer who used to represent the plaintiff will testify.  Plaintiff alleges that the lawyer lost or destroyed e-mails that are critical to the case.

The case revolves around the plaintiff’s claim that the defendants stole his idea for a “limo timeshare service” and developed it into their incredibly successful business.

What business did the defendants develop?

Five For Friday #189

Welcome to Friday!

It’s Super Bowl weekend.  One of my favorite aspects of the Super Bowl? The long odds that you can get on crazy (and entertaining) prop bets. For instance, you can bet on who will tackle a fan who runs onto the field.  The longest odds are on “another fan.”  A $100 bet pays $750.

Ok, so, regular readers know a few things about me.

• I try to tie the Friday column to the quiz number, the date, or an upcoming event.
• I like to include references to pop culture & sports.
• I’m a Taylor Swift fan.
• I’m superstitious.

Today is Justin Timberlake’s birthday.  He’s been part of two memorable half-time performances at the Super Bowl.  Sunday is the Super Bowl and, this quiz number – 189 –  is (sort of) associated with Taylor Swift.

When I started this blog, the odds were astronimical that quiz 189 would fall on Justin Timberlake’s birthday two days before the Super Bowl. A $100 bet probably would’ve paid $75,000.  I cannot believe my luck!

Here’s where my superstitious side kicks in.

Been there, done that.

Five For Friday #92 posted on October 27, 2017.  Central characters?

• Justin Timberlake;
• Taylor Swift; and,
• the Super Bowl.

What are the odds?

Alas, I will you leave this.  Regular readers also know that I like stories that involve clever filings by lawyers.

Denise Kirby is a lawyer in Kansas City.  She’s a Chiefs fan and is in Miami for the Super Bowl, but only after receiving a continuance for a trial that had been scheduled for Monday.  As it did me, I hope that Attorney Kirby’s Request For Continuance makes you smile.  Above The Law has the story & filing here.

Onto the quiz!

• 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

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.

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 exceptions to the rule.

Question 2

Here are 2 things I mentioned at CLE:

1. last minute changes to wire instructions; and,
2. a prospective out-of-state client who claims to be owed money by a person or business that is in Vermont, and who only communicates with you by e-mail.

I was warning lawyers about  ________.

• A.   accidentally communicating with a represented person.
• B.   the risks of not understanding how to conduct e-discovery competently.
• C.   the Unauthorized Practice of Law.
• D.   common trust account scams.

Question 3

Consider the following:

• must be in a writing that is signed by the client.
• cannot be used for representing a defendant in a criminal case.
• cannot be based on securing a divorce.

Here, we’re talking about:

• A.   Contingent Fees
• B.   Flat Fees
• C.   An agreement to limit the scope of a representation
• D.   All the Above

Question 4

Attorney called me with an inquiry.  She said “Mike, I represented Client.  The case is over.  She’s coming to my office later this week.  I have some questions about mental impressions, as well as internal notes and memoranda.”

Most likely, what did Attorney call to discuss?

• A.  The duty to report a client’s fraud.
• B.  The duty to act competently to safeguard client data stored in the cloud.
• C.  The duties to a client who suffers from a diminished capacity.
• D   The duty to deliver the file.

Question 5

Background: after consecutive quizzes that included questions related to the British royal family, the ghost of Aunt Kate admonished me through a local lawyer who spent many an election night at Aunt Kate’s house.   As such . . .

. . . in 1966, Alan Page led the Notre Dame Fighting Irish to the college football national championship.  He went on to star in the NFL, and played in 4 Super Bowls for the Minnesota Vikings.  On the Vikings, he was part of a defensive unit that had a colorful nickname.  After retiring from football, Page embarked on a legal career that included serving for 30 years on the Minnesota Supreme Court.

That’s right: he played & served in Prince’s home state.

Back to Super Bowl bets & long odds: another available bet is “what color Gatorade will the winning team pour over its coach?”

When betting opened, a particular color was the longest shot, with a $100 bet paying $1,800.  As of this morning, that color is now the odds-on-favorite, with winners only getting even money.

If you know anything about Prince, the Vikings, and the nickname of Page’s defensive unit, you’ll know the color.

What color?

Monday Morning Answers #188

Happy Monday!

Friday’s questions are here. Today’s answers follow the honor roll.

But first, today we pause to honor Martin Luther King, Jr.

In the introduction to Friday’s quiz, I reiterated an argument I’ve made before: when it comes to addressing the problems that most affect the legal system & profession, I believe that the collective we are too often too quick to eschew small things that will result in incremental improvement. We prefer great solutions that fix everything at once. Our response to the justice gap is an example.  On the other hand, when it comes to wellness, we’re fortunate that some offices & firms realize that small things matter.  Still, in my view, the profession tends to make perfect the enemy of good.

Here’s a quote from Reverend King:

The quote inspires me.

In 2020, I know that I won’t be able to create or accomplish great solutions to the profession’s problems.  But, every single day, my job will give me a chance to be great at something small that helps someone through the day.  I accept the challenge. If you join me, the small things will add up.

Honor Roll

• Karen Allen, Esq.; Karen Allen Law
• Matthew Anderson, Pratt Vreeland Kennelly & White
• Evan Barquist, Montroll Backus & Oettinger
• Penny Benelli, Dakin & Benelli
• Beth DeBernardi, Administrative Law Judge, VT Dept. of Labor
• Erin Gilmore, Ryan Smith & Carbine
• Robert Grundstein, Esq.
• Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
• Aileen Lachs, Office of United States Senator Patrick Leahy
• John Leddy, McNeil Leddy & Sheahan
• Kevin Lumpkin, Sheehey Furlong & Behm
• Jack McCullough, Vermont Legal Aid, Project Director – Mental Health Law Project
• Hal Miller, First American
• Herb Ogden, Esq.
• Nancy Hunter Rogers, Chamberlin School 
• Jim Runcie, Ouimette & Runcie
• Ashley Taylor, Horsley Lajoie Goldfine
• Jonathan Teller-Elsberg, Vermont Law School, JD Candidate
• Allison Bates Wannop, Special Counsel, Vermont Department of Public Service
• Zachary York, Vermont Superior Court, Chittenden Civil 

 

ANSWERS

Question 1

Lawyer represents Client in Client v. Adversary.   Lawyer knows that Attorney represents Adversary.     Adversary calls Lawyer directly to discuss settlement.   Attorney has not consented to direct communication between Lawyer and Adversary.  Which is most accurate?  The no-contact rule:

• A.  Does not apply because Adversary initiated the communication.
• B.   Prohibits Lawyer from communicating with Adversary.  Rule 4.2 applies even if the represented person initiates the communication.  See, Comment [1].
• C.   Prohibits Lawyer from communicating with Adversary, unless Adversary is also a lawyer.
• D.   None of the above is even close to accurate.

Question 2

Me: “Do not state or imply that you’re disinterested.  And, if you know that the person misunderstands your role, correct their misunderstanding.”

Given my statement, the “person” must be ______.

• A.  adverse to lawyer’s client
• B.  unrepresented.   See, Rule 4.3.  It applies whenever dealing with anyone who is unrepresented, no matter their role or alignment.
• C.  a witness
• D.  a juror

Question 3

Lawyer represents Client in Client v. Organization.   Lawyer knows that Attorney represents Organization.  Under the Rules of Professional Conduct, does Lawyer need Attorney’s consent to discuss the case with former employees of Organization?

• A.   No.  See, Rule 4.2, Comment [7].
• B.    Yes.
• C.  Yes, but only if they were part of the “control group.”
• D.   Yes, unless their departure from Organization was involuntary.

Question 4

Lawyer drafted a will for Client.  Lawyer’s child benefits under the will.   For Lawyer to avoid a disciplinary prosecution:

• A.   Client must be related to Lawyer’s child. V.R.Pr.C. 1.8(c).
• B.   Lawyer must be married to Client.
• C.   Client must be an attorney.
• D.  None of the above.  This is a violation no matter what.

Question 5

Two weeks in a row!

Yes, I’m on my way to Canada.  But I’ll be back.  Mom – don’t worry. When I finally decide to move, I’ll tell you before I announce it on the blog.

Anyhow, Her Royal Highness the Duchess of Sussex was born in Canada. Later, she played a paralegal-turned-lawyer on a long-running tv show.  As I alluded to last week, she and Prince Harry recently caused a commotion in the Commonwealth by announcing their plans to leave England for Canada (and the U.S.)

Originally coined by a British tabloid, what is the one-word name that encompasses anything & everything related to the uproar over the Prince & Princess’s decision to depart Great Britain?

MEGXIT

 

 

Five for Friday #188

Welcome to Friday!

Those of you familiar with my disdain for winter — put your coffee down before reading further.

Today, I’m heading north.

That’s right, in a few short hours I’ll be on the road to Montreal for the VBA/YLD Thaw.  Later today, before Thaw Bowl VII, I’m moderating a panel on attorney wellness.

One of the points/questions that I intend to make/ask is that, as with many issues facing this profession, there are lots of little things that we can do each day to improve wellness.  Things that would never be the key recommendation of a study group, but things, nonetheless, that would make incremental improvement. And, after all, incremental improvement is improvement. Maybe that’s what study groups should recommend: small things, like making a difference one day and one starfish at a time.

Speaking of which, I think I found a small thing that would improve my own wellness and perhaps the state of mind of those who share my feelings toward winter.  It’s the damn weather app on my phone. Check this out:

Now, true care truth brings, I’ve never been confused with a tech guru or science guy.  But, I’ve heard of math. And I’m pretty sure that THERE IS NO SUCH THING AS NEGATIVE ZERO!  And my phone is still on Fahrenheit!

Would 0 or +0 make me happier about the runs I have planned in the city this weekend?

NO!

But that minus sign is an unnecessary twisting of the knife.  Fixing it would go a long way towards wellness for all.  Coders: sun lovers like me are your starfish. Save us one small step at a time.

By the way, given that the week’s number includes “88,” my mind drifts back to 2017 and a happier January trip. One that included hanging with Junior in Key West.

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

Lawyer represents Client in Client v. Adversary.   Lawyer knows that Attorney represents Adversary.     Adversary calls Lawyer directly to discuss settlement.   Attorney has not consented to direct communication between Lawyer and Adversary.  Which is most accurate?  The no-contact rule:

• A.  Does not apply because Adversary initiated the communication.
• B.   Prohibits Lawyer from communicating with Adversary.
• C.   Prohibits Lawyer from communicating with Adversary, unless Adversary is also a lawyer.
• D.   None of the above is even close to accurate.

Question 2

Me: “Do not state or imply that you’re disinterested.  And, if you know that the person misunderstands your role, correct their misunderstanding.”

Given my statement, the “person” must be ______.

• A.  adverse to lawyer’s client
• B.  unrepresented
• C.  a witness
• D.  a juror

Question 3

Lawyer represents Client in Client v. Organization.   Lawyer knows that Attorney represents Organization.  Under the Rules of Professional Conduct, does Lawyer need Attorney’s consent to discuss the case with former employees of Organization?

• A.   No.
• B.    Yes.
• C.  Yes, but only if they were part of the “control group.”
• D.   Yes, unless their departure from Organization was involuntary.

Question 4

Lawyer drafted a will for Client.  Lawyer’s child benefits under the will.   For Lawyer to avoid a disciplinary prosecution:

• A.   Client must be related to Lawyer’s child.
• B.   Lawyer must be married to Client.
• C.   Client must be an attorney.
• D.  None of the above.  This is a violation no matter what

Question 5

Two weeks in a row!

Yes, I’m on my way to Canada.  But I’ll be back.  Mom – don’t worry. When I finally decide to move, I’ll tell you before I announce it on the blog.

Anyhow, Her Royal Highness the Duchess of Sussex was born in Canada. Later, she played a paralegal-turned-lawyer on a long-running tv show.  As I alluded to last week, she and Prince Harry recently caused a commotion in the Commonwealth by announcing their plans to leave England for Canada (and the U.S.)

Originally coined by a British tabloid, what is the one-word name that encompasses anything & everything related to the uproar over the Prince & Princess’s decision to depart Great Britain?

Monday Morning Answers #187

When it comes to this blog, the royal watchers are alive & well!

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

Honor Roll

• Karen Allen, Esq.; Karen Allen Law
• Matthew Anderson, Pratt Vreeland Kennelly & White
• Evan Barquist, Montroll Backus & Oettinger
• Penny Benelli, Dakin & Benelli
• Alberto Bernabe, Professor, John Marshall Law School
• Corinne Deering, PACE Registered Paralegal®.  Paul Frank & Collins
• Erin Gilmore, Ryan Smith & Carbine
• Laura Gorsky, Esq.
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Jeanne Kennedy,  JB Kennedy Associates, Blogger’s Mom
• John Leddy, McNeil Leddy & Sheahan
• Pam Loginsky, Washington Association of Prosecuting Attorneys
• Lon McClintock, McClintock Law Offices
• Jeffrey Messina, Bergeron Paradis Fitzpatrick
• Hal Miller, First American
• Nancy Hunter Rogers, Chamberlin School 
• Jim Runcie, Ouimette & Runcie
• Jay Spitzen, Esq.
• Jonathan Teller-Elsberg, Vermont Law School, JD Candidate
• Jason Warfield, Vermont Law School, Class of 2020
• Lucia White, Practice Manager/Paralegal, Dunkiel Saunders 
• Thomas Wilkinson, Jr., Cozen O’Connor
• Zachary York, Vermont Superior Court, Chittenden Civil 

Answers

Question 1

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 mentioned in the rules of professional conduct

Question 2

Lawyer called me with an inquiry.  My response included the following words and phrases:  “knowledge,” “violation,”  “substantial question,”  and “honesty, trustworthiness, fitness.”

What did Lawyer call to discuss?

• A.  Informing a court that a client had testified falsely in a civil matter.
• B.  Informing a court that a criminal defense client had testified falsely.
• C.  Reporting another lawyer’s misconduct.  V.R.Pr.C. 8.3
• D.  Whether reciprocal discipline would be imposed in Vermont as a result of Lawyer being sanctioned in another state.

Question 3

Law Firm has a Facebook page.  Partner posts “the first 25 to ‘like’ this page win a free iPod!”  Which rule might the post violate?

• A.   The rule that prohibits a lawyer from paying another to recommend a lawyer’s services. See my blog post: Like to win a Prize!
• B.   The rule that prohibits the unauthorized practice of law.
• C.   The rule on communicating with a represented person.
• D.   Last month, the Vermont Supreme Court ruled that such a statement does not violate the Vermont Rules of Professional Conduct.

Question 4

By rule, a lawyer shall not disburse from the trust account:

• A.   True.
• B.   Without “collected funds” and there are no exceptions.
• C.   Without “collected funds” but there are some exceptions.  See my blog post: Disbursing without Collected Funds
• D.   Without the client’s consent, confirmed in writing.

Question 5

Following Caesar’s assassination, Brutus was forced to leave Rome.

One of my favorite fictional legal professionals is Rachel Zane.  In the television show Suits, she worked for many years as a paralegal before finally passing the LSAT, getting into law school, and becoming a lawyer.

In real life, the actress who plays Zane made headlines this week, not for leaving Rome, but for leaving her husband’s home country.

Who is the actress who played Rachel Zane in Suits?

Her Royal Highness The Duchess of Sussex, Meghan Markle