Five for Friday #118: Marathons

Welcome to #118!

The number 118 will always remind me of marathons.  Here’s why.

I ran my first marathon in 2008.  My goal was to be able to say I’d run a marathon.  A few months after I finished, I decided anybody could run 1 marathon, so it’d be better to be able to say “I’ve run 2 marathons.” So, I ran another in 2009.

My goals evolved.  Next was to qualify for the Boston Marathon.  After mulitple failures, I finally did. My current goal is to finish 20 marathons. If I finish, Sunday’s Vermont City Marathon (“VCM”) will be my 20th marathon and 11th VCM.

Don’t worry – I’m about to connect this to 118.

Of the 19 marathons I’ve run, most were positive experiences.  Two exceptions: the 2013 and 2014 Boston Marathons.

2013 was my first Boston.  It was the year of the bombs. Fortunately, I’d finished well and was in my hotel when they exploded.  It was one of the saddest, most surreal days of my life.

I ran Boston again in 2014. I still don’t know whether it was food poisoning or a stomach bug, but the night before the race I came down with the runs – no pun intended.  I couldn’t go 15 minutes without needing to use the bathroom or a port-o-let on the course.  As a result, I struggled throughout, almost quit, and ended with a crappy time.

Pun intended.

My finish devastated me. I had been desperate to do well, if only to honor the 2013 victims.  Once I finished, I walked to Boston Common, sat down, and cried.  It’s the only time I’ve cried after a race and, I think, the last time I cried in my life.

That race was the 118th Boston Marathon. So, 118 (and 117 for that matter) are numbers that I’ll always associate with marathons.

Which is ironic given that the 118th quiz falls on the same weekend as VCM.

Late yesterday, I decided to send an e-mail to some Vermont lawyers who are marathoners.  I posed a few questions that, as you’ll see, are loosely connected to legal ethics.  The lawyers were incredibly kind to reply.  The questions and responses are below.  If this isn’t your thing, feel free to scroll to the quiz.

(note: not every lawyer responded to every question)

The lawyers:

  • Karen Allen, perennial member of the #fiveforfriday Honor Roll
  • Heather Brochu, Deputy State’s Attorney, Franklin County
  • Danielle Fogarty, former champ, PRB Legal Ethics Trivia Contest
  • Howard Kalfus, Hearing Officer, Vermont Judicial Bureau
  • Jordana Levine, perennial member of the #fiveforfriday Honor Roll
  • Josh Lobe, esteemed member of the Board of Bar Examiners
  • Sarah London, Assistant Attorney General
  • Rob McDougall, Assistant Attorney General
  • Walter Morris, Vermont Superior Judge

Kennedy:  In legal ethics & professional responsibility, conflicts of interest can be tricky for lawyers to navigate. With marathons, I’ve noticed several types of conflicts.  Mainly, training can conflict with life.  But, talk to me about this: how do you handle the conflict that often  arrives late in the race: the conflict between the desire to stop and the desire to fight on to the finish?

  • Judge Morris (19 marathons, including 10 or 11 VCMs): As my pace generally slows, training time becomes more and more difficult.  I have learned to be very flexible with the schedule; so, if it is going to be pouring rain on a long mid-week, or weekend run, I just go a day earlier, or a couple of days later.  This Spring has been very challenging, so there’s been lots of that.  As you know, I’m on a two-week taper, having done my 20+ about a week late. On the Grinding out the Finish, I just go into a zone and stay there.  Lots of mantras, drifty and inspiring thoughts, music in my head from the old days, etc.  For Burlington, once I hit the stretch on the bike path, there is no stopping.
  • Heather Brochu (10 marathons, 4 VCMs):  There are a few things that always help me w/my inner struggles during a race.  I try to always remember to run the mile I am in; do not think about how many miles I have to go or if the one before was a tough one.  Also, just the simple competitor in me.  I am sure this is true for all us, I do not like to give up or lose.  I know any pain I feel will subside (physical & mental). Last thing I do often, might be a little sappy, I run for those who cannot.
  • Jordana Levine (4 marathons, 1 VCM):  My challenge in the race usually comes just far enough along but not close enough to the finish, and I just tell myself that if I stop it will take longer, and to just focus on each mile, just get to that next mile marker.
  • Karen Allen (8 marathons, 3 VCMs) I ran a race where I felt incredible sharp pain in my foot, and was about to quit.  I walked a bit and the pain seemed to subside. Not sure how I finished it, all I know is that I was keeping with my pace group and my head said keep going. Not sure I felt my foot again. Anyway, injury was mile 16. Couldn’t quit. Thinking how fortunate I was that I could run.  As it turns out, I ruptured a tendon in my foot.
  • Josh Lobe (13 marathons, 6 VCMs): Not to go all choir boy, but pretty similar for me.  In practice, I always erred on the side of good ethics in any conflict situation.  Close call, don’t take the case, do the right thing, ignore the facts or whatever else arose.  Same thing in a race.  Never had a DNF or even thought about it.  (Walking, now that’s a different story).  No brainer in both cases.
  • Danielle Fogarty (5 marathons): The desire to finish without question outweighs any desire to stop.  I don’t want to stop unless I’ve finished.  So, if I’d like to stop, but am not yet finished, it all becomes mental – tuning in, man this is hard, calm down, relax, focus.  I think of form, steadiness, and all I have to do is keep going.  I tune in that this is the time to do this now … when this is over, it’s over, and I can’t go back.  This is the time to do this now, until I finish.  I hear some are anxious about whether they’ll finish.  I don’t feel anxious about whether I’ll finish … I might get anxious about the pain until I finish… but that ends, too.  I think marathon training trains our mental processes – and that definitely carries over to practicing law.  A time may come when I don’t like what I’m doing – but I tune in to hold form and finish because I can’t go back.
  • Rob McDougall (16 marathons, 3 VCMs): I just try to focus on the mile I’m running. I don’t think about how many I have to go or how many I’ve run so far.
  • Sarah London (11 marathons, 3 VCMs): If I have that thought, it is usually early in the race.  Boston is actually a good course for this – one year I thought I should quit at mile 5 and then realized that, with the roads closed to traffic, running was probably the simplest way to get back.
  • Judge Kalfus (24 marathons, 11 VCMs): I’ve run enough marathons to know three things for sure: 1) this is gonna hurt; 2) I know I can drop but I also know that the pain is for a finite time; and 3) I know that feeling of crossing the finish line after months of training and preparation.  This knowledge is what helps to resolve that conflict that I still feel every time.

Kennedy:  I often urge lawyers that the best way to avoid an ethics complaint is to set reasonable expectations at the outset of a representation.  In marathons, I’m too often not honest with myself and talk myself into unreasonable expectations.  Is that an issue for you?

  • Judge Kalfus: I have historically suffered from the opposite problem.  Growing up, I was quite literally the fat kid in the band.  When I started training for and running marathons, I thought that I was incapable of being the slightest bit competitive.  Then I met someone with my same build who was running these blistering times.  I got a coach, hit the track and started exceeding my own expectations with the coaching and support of my fellow runners.
  • Danielle Fogarty: I’m pretty steady – pretty reasonable – maybe under expecting … I feel like I’m probably safer than I need to be … I think in general my comfort zone like a high safety net.  In practice, I feel clients trust me easily and I need to be careful (not carefree) about that.
  • Josh Lobe: In about half of my marathons, I’ve set unreasonable expectations for myself with pretty much universally disastrous results.  Shockingly somehow in the other half, I set a reasonable goal was to both satisfy the goal and more or less enjoy the experience.
  • Rob McDougall: I always have a pretty good feel for what I can do from training, but so much of the race ultimately depends on “day of” stuff (how I feel, weather/temperature, food/fueling, etc.) that I don’t get too attached to any particular expectation
  • Sarah London: (Note: Sarah has actually won a marathon)  Same coin, different side?  I very rarely break the tape in any race.  Once I remember following a bike towards flashing blue lights and what i thought was police-line-do-not-cross tape and thought, why am I being directed to run right at what must be a car accident.  
  • Heather Brochu: Yes, I often set unreasonable expectations and always think I could’ve/should’ve of done better.
  • Judge Morris:  Expectations?  Just to finish, and enjoy the company.
  • Jordana Levine:  I’m too conservative, I think.  I should probably push myself more.  My goal for this year is to have a half marathon under 2 hours – I’ve been close for the past two or three years.

Kennedy: I preach that the ethical duty of competence includes tech competence.  I used to run by feel and, for years, didn’t use any sort of GPS. Now, I feel naked if I run without my Garmin.  In marathons, I have trouble not looking at my Garmin every 10 steps to make sure I’m not going too fast or slow.  I often wonder if my reliance on technology prevents me from truly enjoying the experience of running and, in a way, making me less competent as a runner.  How about you? Are you into runners’ tech or do you run more by feel?

  • Josh Lobe: I think technology enhances performance, but takes some of the fun out of it.  When I was doing a decent amount of triathlons, when I first got serious on the bike I had my cyclometer, my first generation HRM and something that gave me cadence.  I’d be riding through the beautiful Vermont Countryside and not noticing anything but a bunch of  data flashing in front of me.  I chucked all the electronics and decided to look around.  Much more scenic and safer too.
  • Rob McDougall: Tech! A Garmin watch to tell me the pace I’m running.
  • Jordana Levine:  I run with a gps watch, I think it makes me a better runner – it motivates me, keeps me focused, but also helps me run my feel – because on my mid-week runs I wear it but don’t usually look at it much.
  • Sarah London: Not sure.  One very hot marathon I came to a tall red timing clock that read 4 hours and 25 minutes and I wasn’t even halfway done.  I thought, wow I must be having a really bad day and this Garmin is way off.  Turns out that was a sign for the price of gas.  
  • Judge Morris:  Tech–that’s a no go for me, totally.  I really don’t want live feed as to how I’m doing, I try to stay in touch with my body and mind. Besides, at my stage, carrying even a few ounces of a device is a concern!
  • Judge Kalfus: I’m a tech guy.  I think that without my Garmin, I’d be standing in the middle of the race course wondering what I’m supposed to be doing.  That said, I do dream of someday becoming less compulsive about my running.
  • Heather Brochu: I love my GPS, I feel lost without it.  Not sure that is good.  Before Boston this year I read how Summer Sanders a few years ago went to start her GPS at the start of Boston and then came to the realization that her whole obsession with time was getting to Boston, not running it.  She did not start hee GPS and instead ran race for pure enjoyment.  I tried not to use GPS this Boston.  I looked it at very little and tried to run on feel and pure enjoyment, just loving the moment!
  • Karen Allen: I also feel naked when I don’t wear my GPS, but my best time was when I ran with a pace group and didn’t look at my watch. So, will I run with GPS? Yup. I will try not to look at it, but I like looking at the splits and seeing if I ran long. (editor’s note: “running long” means running further than the measured distance. usually this happens from weaving in & out of other runners, or taking turns too wide. there are LOTS of turns at VCM)

Kennedy: In Vermont, we lawyers like to say that the bar is different here – kinder, gentler if you will.  I’ve run marathons in 8 states. To me, VCM is different from other marathons: it’s way better, for many different reasons.  Most notable to me – the crowd support. Thoughts?

  • Karen Allen: VCM – although there is an excitement about running a big city marathon with 50k other runners, hometown is great. No need for arranging transportation to the start and waiting there for hours. Living 1.5 miles from the start is ideal. Running in familiar neighborhoods and seeing friends and family throughout is amazing. Oh hey- what about the lake views? Nuff said.
  • Judge Morris:  VCM is definitely kinder, gentler, than anywhere. Lots of friends and familiar faces help. But I have to say, Boston cannot be beat for the experience and the crowds.
  • Josh Lobe: Never practiced anywhere else but have read enough Grisham to get a sense of what lawyering is like in some other jurisdictions. I have run in some big law cities though.  Fully agree with your premise.  People are pretty damned nice around here whether its contested hearing or a water stop.
  • Danielle Fogarty: I haven’t run VCM… I ran the Shires in Bennington County 3 times and Boston twice.  I know I love the training camaraderie in Vermont, and the integration of running with all else in the day of life … without being intense or all important or all about ‘running.’  There’s a lot more going on.
  • Jordana Levine: I love VCM – the energy, support along the course, the course itself – it’s definitely one of my favorites; I always see people I don’t expect to see.
  • Rob McDougall: I agree.  The community and spectators really make the race fun with how they embrace and support it – especially in some of those neighborhoods along the 2nd half.
  • Heather Brochu: I absolutely love VCM definitely one of my favorites, the other favorite is of course Boston.   I am bummed not to be running VCM this year.
  • Judge Kalfus:  I agree whole-heartedly.  I’ve run marathons in six different states and in Canada.  I keep coming back to VCM not just because of the convenience, but also because of the great spectators, great scenery and the wonderful community support.

Onto the quiz!

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

Question 1

With respect to legal ethics, which involves a different set of rules than the others?

  • A.  Net dividends
  • B.  Screening
  • C.  Overdraft Notification
  • D.  Three-Way Reconciliation

Question 2

Which doesn’t belong with the others?

  • A. a system showing all receipts & disbursements from the account
  • B. records showing all receipts & disbursements for each client
  • C. records documenting timely notice to clients of all receipts & disbursements
  • D. an approved credit card processing system

Question 3

Attorney represents Tatum in the civil matter Tatum v. James.   Lawyer represents James and has retained Expert Witness.

Whether Attorney can contact Expert Witness without Lawyer’s permission is likely governed by:

  • A.  Rule 4.2 (the no-contact rule)
  • B.  Rule 1.6 (information relating to the representation)
  • C.  The Rules of Civil Procedure
  • D.  The Rules of Evidence

Question 4

Pops & Olive divorced many years ago.  Pops is over a year in arrears on court-ordered spousal maintenance payments.

Olive asks Lawyer to represent her in a post-judgment motion to enforce the order.   She cannot afford Lawyer’s fee and asks Lawyer to take the case on a contingent fee basis.  Lawyer agrees.  You may assume that Lawyer does not have any conflicts that prohibit Lawyer from representing Olive.

Which is most accurate?

  • A.   If the contingent fee agreement is reasonable & reduced to writing, it does not violate the rules.
  • B.   Lawyer has violated the rules.  Contingent fees are banned in domestic cases.
  • C.   There will not be a violation unless or until Lawyer attempts to collect a contingent fee from Olive.
  • D.   There is no violation because it was Olive, the client, who proposed the contingent fee.

Question 5

Talk about unethical!!

In 1980, the first woman to cross the finish line at the Boston Marathon did so in what would have been the fastest time in Boston history, and third-fastest marathon in recorded history.  Alas, she was disqualified after it was determined that she’d not run the full course.  By some reports, she jumped into the race about half a mile before the finish.

Name her.

the-quiz

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Five for Friday #117

Welcome to #117!

So, 117 was supposed to be last week.  Instead, there was no quiz because I finally took my own advice and took a few days off.  I headed to Jacksonville, where I had it going up down just south of the Florida-Georgia Line.  This week, I’m back.  Holding it down here in BFE.

Ironic that my break coincided with 117.  First, Rule 1.17 governs the sale of a law practice.  I don’t own a law practice, but my time in Florida left me dreaming about cashing things in and heading south.

More importantly, I was in Florida to visit my cousin Michelle.  Michelle grew up in Milton. Her mom and my mom are sisters.  Michelle is married to Paul Tesori.  Paul is a caddy on the PGA Tour.  They live in Ponte Vedra with their unbelievably fun & fantastic son, Isaiah.  My man Zaiah is 4.

IMG_1232

Isaiah was born with an extra chromosome.  So, to paraphrase a bumper sticker on Michelle & Paul’s car, I’m proud to say that “my cousin’s kid has more chromosomes than your cousin’s kid!”

When Isaiah was born, Michelle & Paul had been running the Tesori Family Foundation for years.  Isaiah’s extra special extra chromosome led them to expand TFF’s work to include programming for children with special needs. One of those programs is the All-Star Kids Clinic.

Last week’s PGA Tournament was The Players Championship.  The tournament, one of the crown jewels in the sport, takes place at TPC-Sawgrass, a course just a few miles from Michelle & Paul’s house.  Every year, through their foundation, Michelle & Paul host an All-Star Kids Clinic in connection with The Players.  This year, they invited me to help out at the clinic.  I jumped at the opportunity.  You can read about this year’s clinic here.

I could go on & on about Michelle and Paul.  I’ve blogged on the importance of winning your 3 feet of influence.  That’s what Michelle & Paul do.  Every.  Single. Day.  Through their faith, their love, and their relentlessly positive approach to life, they are making a difference – one person, one day at a time.  I cannot overstate how much I valued the all-too-brief amount of time I got to spend with them, Isaiah, and the wonderful group of friends they introduced me to.  They inspired me, recharged me, and reminded me how important it is to make time for what matters.

Oh, and Paul’s week on the course? I forgot to mention: he caddies for Webb Simpson.  Webb won the tournament.  Paul more than satisfies the golf equivalent of Rule 1.1’s duty of competence!!! If you’re interested, you can read about how much the win meant to Paul and Michelle here.

What’s this got to do with 117?  Not much. It’s more “17.”  You see, TPC-Sawgrass is home to one of the most famous holes in golf: the iconic 17th and its island green.  Here’s a photo from the course’s website.  The tee is top-middle.

Here’s a picture I took from the tee.  Imagine that with all the marbles on the line.

IMG_1160.jpg

ps: those of you who follow me on social media know I’m a big fan of #raisedVT (KP rocks!)  Michelle might be doing great things in Florida now, but she’s #raisedVT.  Interestingly, I learned this week that Keely Levins works for Golf Digest. Keely is also #raisedVT.  She grew up in Rutland where her dad, Jim Levins, practices law.

Onto the quiz!

Rules

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

Question 1

What type of conflict is less likely to be imputed to other lawyers in the same firm as the conflicted lawyer?

  • A.  a conflict between a former client & current client
  • B.  a conflict between current clients
  • C.  a conflict arising from a personal interest of the disqualified lawyer
  • D.  Trick question.  In VT, all conflicts are imputed to others in the same firm.

Question 2

How long are Vermont lawyers required to keep trust account records?

  • A.   6 years from the termination of a representation.
  • B.   7 years from the termination of a representation.
  • C.   a reasonable period of time following the termination of a representation.
  • D.  the rules are silent,

Question 3

Lawyer called me with an inquiry. I listened, then said:  “generally, your duty is to raise all non-frivolous defenses in a motion to quash.  If the court enforces the subpoena, the rule permits you to comply.”

It’s most likely that Lawyer and I discussed:

  • A.  Rule 1.6 (confidential information relating to the representation of a client)
  • B.  Rule 1.9 (former client conflicts)
  • C.  Rule 4.4 (respect for the rights of a third person)
  • D.  Rule 7.1 (communications concerning a lawyer’s services)

Question 4

Tech competence.  My position is that, for many lawyers, Rule 1.1’s duty of competence includes a duty to understand when and how to advise/request that clients/opposing parties preserve ______.

  • A.   ESI
  • B.   CBD
  • C.   DUI
  • D.  ACH

Question 5

Elihu Smails was a lawyer who became a judge.  After the way Judge Smails treated Danny Noonan, no way anybody would ever want to carry the Judge’s clubs for 18 holes!

Name the movie in which Judge Smails didn’t exactly cloak himself in behavior that tends to cast the legal profession in a positive light.

 

 

 

Monday Morning Answers #116

Welcome to Monday!  Friday’s questions and my Derby picks are here.

My pick to win, Mendelssohn, finished last.  That’s not ideal.  In real life, I boxed Audible and Good Magic. So, the final few furlongs were exciting. Alas, horse racing isn’t horse shoes or hand grenades.

In better bettor news, Liz Kruska correctly predicted Justify would win!

The answers follow today’s Honor Roll.

Honor Roll

(hyperlinks to bios where available)

Answers

Question 1

Lawyer called me with an inquiry. I listened, then replied: “the rule applies if you’re holding them in connection with a representation.”

Holding what?

  • A.   Client Confidences
  • B.   Funds or other property.  See Rules 1.15 and 1.15A.
  • C.   Evidence of a client’s crime
  • D.  Potentially exculpatory evidence

Question 2

Which involves a different set of the Rules of Professional Conduct than the others?

  • A.  ACH transfers
  • B.  Lateral transfers
  • C.  Transfers from private practice to work as a government attorney
  • D. Transfers from being a law clerk to working in a private practice

An ACH Transfer is a financial transaction. The other types of transfers involve the conflict issues that arise when lawyers change jobs.

Question 3

“A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.”

  • A.  Is a rule.  It’s Rule 3.2.
  • B.  Is not a rule, but, per case law, is an aspect of the duty of competence
  • C.  Is not a rule, but, per case law, is an aspect of the duty of diligence
  • D.  B & C

Question 4

Attorney called me with an inquiry.  I listened, then replied, “before you disclose, the first step is to refer it up the ladder to a higher authority and, if warranted by the circumstances, to the highest authority that can act.”

Given my response, it’s most likely that Attorney represents:

  • A.  an organization.  Rule 1.13
  • B. a lawyer who discovered that a client used th lawyer’s service to commit a fraud on the court
  • C.  a firm’s partner whose associate has a health condition that adversely impacts the associate’s fitness to practice law
  • D.  the defendant in a criminal case

Question 5

John Tweedy was a lawyer. He graduated from Columbia Law School.  While there, he met a woman named Penny Chenery.  Penny was a student at Columbia Business School. The two eventually married.

To call Penny “competent” would be a gross understatement.  Penny is one of the most succesful horse breeders in U.S. history.  She bred and raced the horse that many consider the greatest of all-time.  The horse holds the record for the fastest time in The Kentucky Derby.

The horse was born in 1970.  Penny’s father had “won” the horse by losing a coin toss.  That is, in 1969, Penny’s father and another breeder agreed to flip a coin to determine who would receive the first choice of the next two foals to be sired by Bold Ruler, the 1957 Horse of the Year.

Penny’s father lost the coin toss.  The winner chose a horse named The Bride, who you likely have never heard of.  Penny’s father was left with a horse who I’m quite certain you’ve heard of.

Name the horse that Penny’s father won by losing a coin toss.

Secretariat

See the source image

Five for Friday #116: The Kentucky Derby

Welcome to #116!

I couldn’t imagine a better tie-in to the 116th #fiveforfriday legal ethics quiz than the 144th Kentucky Derby!

You see, one of the earliest supporters of the #fiveforfriday quiz was Elizabeth Kruska. Liz has her own practice in Woodstock.  She and I have served together on the Vermont Bar Association’s Board of Managers for several years.  Liz and her husband, Vermont attorney Wesley Lawrence, are frequent members of the #fiveforfriday Honor Roll.

Not only that – they’re major horse racing fans and will be at Churchill Downs for tomorrow’s run for the roses.  Liz and Wesley were kind enough to indulge me in an e-chat for today’s column.

Ethical Grounds:  So Liz –  tomorrow, you and Wesley will be at the 144th Kentucky Derby.  144!  We’re only up to 116 #fiveforfriday quizzes!  What number Derby will this be for the two of you and, more importantly, how’d 2 attorneys from Vermont get so into horse racing?

Liz  This is Wesley’s 11th Derby and my 10th. I missed 2011 because of a 2 week trial. Here’s how we started going. Wesley’s father went to college at the University of Louisville and loves the Derby, so it was always a thing in Wesley’s life when he was growing up. In 2008 we all decided to go together. That was the year Big Brown won, and also went on to win the Preakness. We were so excited at the idea of a Triple Crown winner that we went to the Belmont that year too. We were hooked.

EG: Interesting you mention 2008.  That Derby sticks in my memory for two reasons. First, I watched at a bar.  The bartender was running a Derby pool.  It was a blind draw – names straight out of a hat.  The place was so busy that the pool filled up, so she did another, then another, then another.  Eventually there were 6 pools.   The bartender had Big Brown in 5 of the 6!!  Umm, yeah, this isn’t rigged!!  Now, second, a sad memory.  I got into the pool.  Guess who I had? That’s right – Eight Belles.  So sad.

Anyhow, for the uninitiated, what are some of the best aspects of horse racing and what’s Derby day like?

Liz:  We were in the infield and could not see that Eight Belles broke down. This was before everyone had smart phones. I cashed my ticket on her before I knew what happened. 😢 Horse racing is really different from any other sport. For bettors it’s a game of skill and study and probability. (how many sports involve homework?!). For sports fans it’s a contest where sometimes the best wins but sometimes gets upset by a serious underdog. For adrenaline junkies (and people with short attention spans) it’s fast and thrilling. For people who love horses its horses. It’s surprisingly accessible; if you go to a race and talk to enough people eventually you’ll meet someone connected to a horse in some way.

Derby Day is different from nearly every other race day. It’s grand and overblown and feels like a day-long party. Hunter S. Thompson’s piece about the Derby still feels applicable almost 50 years later. (http://brianb.freeshell.org/a/kddd.pdf)

EG:  In legal ethics, conflicts of interest are always a hot topic.  Do you think trainers have conflicts? Specifically, it’s not uncommon for some of the trainers to enter multiple horses in a single Derby.  Todd Pletcher has FOUR horses in this year’s race!  Do a trainer’s duties to Owner 1 conflict with the trainer’s duties to Owner 2?  Do owners provide informed consent to allow the trainer also to train a competitor?  

Liz:  It feels like a conflict but owners go in knowing this happens. Unlike in legal cases, generally, everybody in the race has the same goal, which is to win. And since jockeys get paid a percentage they have an incentive to do what they can to win. A trainer’s job is to train the individual horse to his or her potential; if a trainer is known to three races, that trainer won’t have clients very long.

Also, different horses have different running styles. Some like to get out front and keep the lead. Some like to let another horse set the pace and make up ground later. Some are deep closers – the ones who zoom from last to first at the very end. The Derby doesn’t usually favor deep closers. Trainers know their horses’ styles and can advise the rider. But once the gate opens, it’s all up to the rider to help the horse run his or her best race.

EG: I often blog about Rule 1.1 and the duty of competence.  I’ve also posted more than one blog that references my Irish heritage.  So, why do the Irish horses seem to be incompetent when they run at Churchill Downs?  Mendellsohn won the UAE Derby and is 5-1 (as of right now). Could this be the year that the roses presented to the winner are replaced with 🍀🍀🍀🍀?

Liz: Mendelssohn didn’t just win the UAE Derby, he smoked the field by 18 lengths. (The place finisher was a filly named Rayya, who will run in the Kentucky Oaks on Friday.) It’s often a little bit of a wildcard when you have a horse that ships in for a big race like this. But Mendelssohn has travelled all over and that doesn’t seem to bother him. Maybe he’s sitting on another win!

EG:  Last year, I saw the pics that you and Wesley posted from Churchill Downs.  Without a doubt, each of you satisfied the duty of competence insofar as it relates to horse racing tradition & etiquette.  Namely, you each nailed the Derby Day outfit.

How about this year?  First, let’s talk hats.  Do you bring only one?  Do you bring several and choose on Saturday morning?  What do you with them the rest of the year?  Will Wesley be wearing a hat? Pastel suit? Seersucker suit?  Pastel seersucker suit?

Liz: I have a hat for Oaks Day and a hat for Derby Day. I had them decorated by the Valley Flower Company in White River Junction. There are 3 horses in the Derby this year with high-energy names: Firenze Fire, Bolt D’Oro and Flameaway, so I had my Derby hat designed to look like flames. Wesley will probably wear a jacket and tie (no seersucker this year), and a hat from the stable in NY that we participate in – Zilla Racing Stables.

EG:  I’m sure every lawyer has had at least one hearing, trial, or appellate argument that went so poorly that, upon leaving, the lawyer felt like he or she had violated Rule 1.1’s duty of competence.  Do the horses who finish last, next-to-last, or way off the lead know that they didn’t do well?

Liz: I think horses who are used to winning know when something’s different if they don’t go to the winners circle. Race horses generally try really hard, and they definitely know when they’ve done something good. And they’re very smart.

EG: Rule 3.5 prohibits lawyers from engaging in undignified or discourteous conduct that is degrading or disruptive to a tribunal. A few years ago, my brother and I brought our mom to Saratoga.  After the first race, she started picking thru the tickets that bettors had tossed onto the ground.  WTF Mom!!!  I don’t know that the track counts as a tribunal, but her conduct struck us as undignified and degrading to her sons!! Nobody throws away a winner, and we aren’t peasants who need to scrounge thru the trash!!!   Guess what??? She found a ticket worth $2!! 

Query: merely by scrounging, did she commit a violation of the horse racing rules of conduct???  

Liz: Everybody does this, and your mom was spot-on! There are people who go to the track with mini flashlights specifically for leafing through trash bins to find uncashed tickets.

EG: You and Wesley are multi-jurisdictional fans. Besides the Triple Crown tracks, what are some of your favorites and why?

Liz:  Saratoga! Because it’s summer and it feels like vacation. Also, it’s close. We also like Aqueduct. That place feels like a racetrack. It’s a little gritty, and it’s full of interesting people. Gulfstream Park in Florida is nice. So are Del Mar and Santa Anita in California.

EG: Do you know all the words to My Old Kentucky Home? Will you get misty eyed as it plays?

Liz: I do, and it depends on how many mint juleps I’ve had.

EG:   Wouldn’t #fiveforfriday be a good name for a race horse??  Wait, hashtags might not be allowed. If not, I’ll settle for fiveforfriday.

Liz:  It would be a great name for a horse! We checked the Jockey Club registry, and the name isn’t taken yet. Perfect!

EG: Finally, I often caution lawyers to manage client expectations. So, knowing that you can’t guarantee a result, give us your best prediction for the race.

Liz:  Justify seems hard to beat, but he’s lightly raced and has never been challenged in a big field of horses. Wesley likes Bolt D’Oro and Vino Rosso. I also like Bolt D’Oro, and I also think Enticed could be sitting on a really big race.

Thank you Liz and Wesley!!!

Ethical Grounds Official Derby Picks

  1. Mendelssohn  to win!
  2. Bolt D’Oro
  3. Audible edges out Good Magic to show

Onto the quiz!

Rules

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

Question 1

Lawyer called me with an inquiry. I listened, then replied: “the rule applies if you’re holding them in connection with a representation.”

Holding what?

  • A.   Client Confidences
  • B.   Funds or other property
  • C.   Evidence of a client’s crime
  • D.  Potentially exculpatory evidence

Question 2

Which involves a different set of the Rules of Professional Conduct than the others?

  • A.  ACH transfers
  • B.  Lateral transfers
  • C.  Transfers from private practice to work as a government attorney
  • D. Transfers from being a law clerk to working in a private practice

Question 3

“A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.”

  • A.  Is a rule.
  • B.  Is not a rule, but, per case law, is an aspect of the duty of competence
  • C.  Is not a rule, but, per case law, is an aspect of the duty of diligence
  • D.  B & C

Question 4

Attorney called me with an inquiry.  I listened, then replied, “before you disclose, the first step is to refer it up the ladder to a higher authority and, if warranted by the circumstances, to the highest authority that can act.”

Given my response, it’s most likely that Attorney represents:

  • A.  an organization
  • B. a lawyer who discovered that a client used th lawyer’s service to commit a fraud on the court
  • C.  a firm’s partner whose associate has a health condition that adversely impacts the associate’s fitness to practice law
  • D.  the defendant in a criminal case

Question 5

John Tweedy was a lawyer. He graduated from Columbia Law School.  While there, he met a woman named Penny Chenery.  Penny was a student at Columbia Business School. The two eventually married.

To call Penny “competent” would be a gross understatement.  Penny is one of the most succesful horse breeders in U.S. history.  She bred and raced the horse that many consider the greatest of all-time.  The horse holds the record for the fastest time in The Kentucky Derby.

The horse was born in 1970.  Penny’s father had “won” the horse by losing a coin toss.  That is, in 1969, Penny’s father and another breeder agreed to flip a coin to determine who would receive the first choice of the next two foals to be sired by Bold Ruler, the 1957 Horse of the Year.

Penny’s father lost the coin toss.  The winner chose a horse named The Bride, who you likely have never heard of.  Penny’s father was left with a horse who I’m quite certain you’ve heard of.

Name the horse that Penny’s father won by losing a coin toss.

 

 

Monday Morning Answers #115

Friday’s column about a kid from Barre is here.  The answers to the #fiveforfriday legal ethics quiz follow today’s honor roll.

Honor Roll

(hyperlinks when available.  lack of a link doesn’t reflect a lesser score or lower honors)

Answers

Question 1

Paralegal works for Firm.  Client asks Firm to represent Client in the matter Client v. Other.  

Paralegal has a relationship with Other that would preclude Paralegal from representing Client if Paralegal was a lawyer.

True or False? Under Vermont’s rules, Paralegal’s conflict is imputed to Firm and Firm cannot represent Client.

FALSE.  See, V.R.Pr.C. 1.10, Comment [4]Although, Paralegal “ordinarily must be screened from any personal participation in the matter” of Client v. Other.

Question 2

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

  • don’t state or imply that you’re disinterested;
  • do correct any misunderstanding about your role; and,
  • if the person’s interests conflict with your client’s, don’t give any legal advice other than the advice to seek counsel.

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

  • A.  Candor to a Tribunal
  • B.  Communicating ex parte with a judge.
  • C.  Trial Publicity
  • D.  Dealing with an unrepresented person.  V.R.Pr.C. 4.3

Question 3

Attorney called with an inquiry. I listened, then said: “well, it’ll likely depend on whether you received information from Person that could be significantly harmful to Person.”

In this context, it’s most likely that Person is:

  • A.  A former client of Attorney’s
  • B.  A current client of Attorney’s
  • C.  A juror
  • D.  Someone who met with Attorney to discuss forming an attorney-client relationship, but who never formed such a relationship with Attorney See, V.R.Pr.C. 1.18. My comment comes straight from Rule 1.18(c).

Question 4

A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients.

  • A.   True.
  • B.   True, unless each client gives informed consent in a writing signed by the client.  V.R.Pr.C. 1.8(g).
  • C.   True, but only in civil cases.  The rules prohibit joint representation of criminal defendants.
  • D.   The rules are silent on this issue.

Question 5

The unauthorized practice of law is contempt of court and, if done by a lawyer, is a violation of Rule 5.5.  And, as long time readers know, I’m a big fan of Rule 1.1 and the duty to provide clients with competent representation.

So, speaking of Italy, UPL, and competent representation . . .

. . . Portia was not a lawyer.  However, dressed as a man, she pretended to be one and successfully kept Antonio from having to give a pound of flesh to Shylock.

Name the literary work.

The Merchant of Venice, William Shakespeare

Five for Friday #115: A kid from Barre

Welcome to Friday!

Long-time readers will appreciate this.  My mom just emailed a link to the Burlington Free Press sweepstakes to win tickets to see Taylor Swift.

Anyhow, that’s neither here nor there.  What is both here and there is that “115” posed a problem for me.  The number doesn’t remind me of anything and triggers no associations.  Well, I should say “triggers no interesting associations.”

As I struggled to come up with something for this intro, I thought “well, 115 is kind of like 1.15, and the trust accounting rules are rules 1.15, 1.15A, and 1.15B, so I’ll use the intro to write about trust accounts.”

Not.

Thankfully, I remembered that this is the #fiveforfriday column!  So, I bagged the idea of a sleep-inducing post on trust accounts.

But, what to post???

Desperate, I searched “what happened 115 years ago.”  I ended up on the Wikipedia page for 1903.  Nothing jumped out at me.

Then, scrolling through the year’s births, I noticed this:

Charles Poletti – American lawyer and politician.

I clicked.  I’m glad that I did.

I’m fascinated by the history of Vermont lawyers.  From now on, 115 will remind me of a boy from Barre who became a lawyer and made a difference in the world.

Charles Poletti was born in Barre on July 2, 1903.  Upon graduating from Spaulding High School, he intended to work as the manager of a bakery. Instead, Spaulding’s principal convinced him to go to college. So, off he went.

And not to just any old college.

Poletti went to Harvard, where he graduated Phi Beta Kappa.  A few years later, he graduated from Harvard Law and took a job at a firm in Manhattan.

In 1938, Poletti was elected Lieutenant Governor of New York.  In 1942, he lost his bid for re-election, but was appointed governor when the sitting-governor resigned.  His stint was short – only 29 days – but Poletti was the first Italian-American to serve as the governor of a state.

Poletti eventually joined the war effort. He played a key role in the Army’s work in Italy. He was honorably discharged in 1945 as a full colonel.

Poletti died in 2002.  When he did, the New York Times wrote an article about him.

You should read about him.  He served on the Board of the NAACP, advocated for the integration of both Major League Baseball and the U.S. Army, had a successful career as an arbitrator, promoted the 1964 World’s Fair, received an award from the Pope, and had a power plant in New York City named after him.

Not bad for a kid from Vermont.

Onto the quiz!

Rules

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

Question 1

Paralegal works for Firm.  Client asks Firm to represent Client in the matter Client v. Other.  

Paralegal has a relationship with Other that would preclude Paralegal from representing Client if Paralegal was a lawyer.

True or False? Under Vermont’s rules, Paralegal’s conflict is imputed to Firm and Firm cannot represent Client.

 

Question 2

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

  • don’t state or imply that you’re disinterested;
  • do correct any misunderstanding about your role; and,
  • if the person’s interests conflict with your client’s, don’t give any legal advice other than the advice to seek counsel.

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

  • A.  Candor to a Tribunal
  • B.  Communicating ex parte with a judge.
  • C.  Trial Publicity
  • D.  Dealing with an unrepresented person.

Question 3

Attorney called with an inquiry. I listened, then said: “well, it’ll likely depend on whether you received information from Person that could be significantly harmful to Person.”

In this context, it’s most likely that Person is:

  • A.  A former client of Attorney’s
  • B.  A current client of Attorney’s
  • C.  A juror
  • D.  Someone who met with Attorney to discuss forming an attorney-client relationship, but who never formed such a relationship with Attorney.

 

Question 4

A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients.

  • A.   True.
  • B.   True, unless each client gives informed consent in a writing signed by the client.
  • C.   True, but only in civil cases.  The rules prohibit joint representation of criminal defendants.
  • D.   The rules are silent on this issue.

Question 5

The unauthorized practice of law is contempt of court and, if done by a lawyer, is a violation of Rule 5.5.  And, as long time readers know, I’m a big fan of Rule 1.1 and the duty to provide clients with competent representation.

So, speaking of Italy, UPL, and competent representation . . .

. . . Portia was not a lawyer.  However, dressed as a man, she pretended to be one and successfully kept Antonio from having to give a pound of flesh to Shylock.

Name the literary work.

the-quiz

Monday Morning Answers #114

Welcome to a beautiful Monday morning!  No need for California Dreamin’ on a day like this.

Image result for mama's and papa's monday monday

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

Honor Roll

  • Karen Allen
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, John Marshall Law School
  • Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labor
  • Cary DubeBergeron, Pardis, Fitzpatrick
  • Robert Grundstein
  • Anthony IarrapinoWilschek & Iarrapino
  • Aileen Lachs, Mickenberg Dunn Lachs &Smith
  • Kevin LumpkinSheehey, Furlong & Behm
  • Pam MarshMarsh & Wagner
  • Lon McClintockMcClintock Law Offices
  • Jack McCullough, Vermont Legal Aid, Mental Health Law Project
  • Hal Miller, First American
  • Herb Ogden
  • Jim Runcie, Ouimette & Runcie

Answers

Question 1

Attorney called with an inquiry.  I listened, then said:

  • “the first thing the rule says is that you’re supposed to try to maintain as a normal a client-relationship as possible.”

Given my response, it’s most like that Attorney called to discuss a client:

  • A.  who had filed a disciplinary complaint against Attorney.
  • B.  who informed Attorney that client will lie at trial.
  • C.  who informed Attorney that client is seeking a 2nd opinion.
  • D.  whose capacity to make adequately considered decisions in connection with the representation is diminished. See, Rule 1.14

Kind of a trick question given that the intro included a paragraph on Rule 1.14

Question 2

Which phrase doesn’t belong with the others?

  • A.  Former client.
  • B.  Same or Substantially Related.
  • C.  Materially Adverse.
  • D.  Information Related to the Representation.

A, B,  and C are phrases that appear in Rule 1.9, the rule on former client conflicts.  D is a phrase that appears in Rule 1.6, the rule on confidentiality.

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.

See, Rule 1.2(a).  A lawyer shall abide by a client’s decision whether to settle.  The means by which the objectives of a representation are pursued (B & C) are generally left to the lawyer, in consultation with the client.

Question 4

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

  • “Generally, it’s okay to advise a client to do it, as long as (1) it doesn’t rise to the level of spoliation, or otherwise impermissibly alter, conceal, or destroy evidence; and (2) you and client don’t deny it exists if asked to produce it in discovery.”

Given my response, it’s most likely that Lawyer called to inquire about advising a client:

  • A.  to “take down” or “scrub” social media posts.
  • B.  to surreptitiously record a conversation with a represented adversary.
  • C.  to move money from a bank account to an online service like PayPal or Venmo.
  • D.  to use a shared iCloud account to review a spouse’s text messages in a divorce.

Question 5

William Creighton Howard was both a doctor and lawyer.  From 1922-1939, he was legislative counsel to the American Medical Association.

In 1937, Howard and the AMA were staunchly opposed to proposed tax legislation. Among other things, the legislation required physicians and pharmacists to collect a tax on a product that they prescribed and sold.

Despite the efforts of Howard and the AMA, the legislation passed and President Roosevelt signed the ensuing Act into law.

After the bill passed, Howard complained that it had been drafted in secret and put to vote before opponents had time to read it & prepare their opposition.  (I guess some things never change.)  More importantly, he complained that Act used a deceiving title to disguise its true purpose. He also claimed that proponents of the Act had garnered support by misleading people into thinking that a particular product was prone to overuse and, when overused, caused users to become violent.

In 1965, counter-culture icon Timothy Leary was arrested and charged with violating the Tax Act.  In 1969, a unanimous U.S. Supreme Court declared the Act unconstitutional and overturned Leary’s conviction.

What product did the Act tax?   Marihuana (that’s how it was spelled)

Bonus: in Leary’s case, what part of the Constitution did the Supreme Court conclude that the Tax Act violated?   The Fifth Amendment’s privilege against self-incrimination.  The opinion is here, its wiki entry is here.

 

Five for Friday #114

Dude!  Welcome to the 4/20 Five for Friday!

So, whenever #113 falls on Friday the 13th, odds are pretty good that #114 will fall on Friday the 20th.  That it happens to have happened in April is an added bonus.

4/20. 114.  1.14.  14.

A theme connects them.

(If you don’t know what 420 refers to, for the purposes of this post, it’s marijuna. For the backstory, check out either of these pieces from the Huffington Post and Time. )

Now, the theme as it connects to 114, 1.14, and 14.

Well, 114 doesn’t remind of me anything. However, if you add a decimal, you get 1.14.  As in, Rule 1.14.

Rule 1.14  sets out a lawyer’s duties with respect to the client whose “capacity to make adequately considered decisions in connection with a representation is diminished.” Per the rule, it matters not what causes the diminished capacity.

What’s this got to do with anything?  Well, depending on your clientele, some of you might bump into the rule later today.  If you do, remember: you duty is to maintain, as far as reasonably possible, a normal client-lawyer relationship with the client.

Of course, there’s much more to cannabis and marijuana than dealing with the client who may have used to the point of impairment prior to showing up for court or a meeting with a lawyer.  That’s where 14 comes in.

As in, Comment [14] to Rule 1.2.

Rule 1.2 is the rule that prohibits lawyers from counseling or assisting a client to engage in conduct that is criminal.  The rule draws no distinction between conduct that is criminal under state law as opposed to federal law. Nor does it draw any distinction between federal crimes that are enforced more vigorously than others.

Cannabis is a Schedule I drug under the Controlled Substances Act.  As such, federal law prohibits its manufacture, possession, use, and sale. Vermont law is (and will be) much different.

So, what’s a lawyer to do? That is, if a Vermont client wants legal advice or assistance on a marijuana-related issue that is legal under Vermont law, would a lawyer who provides that advice & assistance violate Rule 1.2 by assisting the client to violate federal law?

Comment 14 states that a lawyer may:

  • advise a client on “the validity, scope, and meaning” of Vermont’s marijuana laws; and,
  • “may assist a client in conduct that the lawyer reasonably believes is permitted” by Vermont law, so long as the lawyer also
  • “advise[s] the client regarding the potential consequences of the client’s conduct under federal law.”  

Last January, the final prong took on added importance when Attorney General Sessions issued this memorandum.

Remember –  it’s not just Comment 14 to Rule 1.2: ALL of the other rules apply as well, including Rule 1.1 and the duty of competence.  For instance, a Vermont lawyer has a duty to provide competent advice to:

  • a business client who asks whether the law allows her to open an edibles bakery or a CBD extraction facility;
  • an employer who asks whether the law requires the employer to accommodate an employee who needs to use medical marijuana during work breaks;
  • an injured worker who wants to know whether the comp carrier has to pay for medical marijuana prescribed to treat the injury; and,
  • a landlord who asks whether a standard lease term prohibiting a tenant from doing anything illegal in the unit allows the landlord to evict a tenant who has 3 plants.

Finally,and less CLE-ish, I leave you with this.  As a lawyer, it’s a bad idea to try to frame an enemy by planting marijuana and other drugs in her car and then calling 9-1-1 to report her for erratic driving.

Onto the quiz!

Rules

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

Question 1

Attorney called with an inquiry.  I listened, then said:

  • “the first thing the rule says is that you’re supposed to try to maintain as a normal a client-relationship as possible.”

Given my response, it’s most like that Attorney called to discuss a client:

  • A.  who had filed a disciplinary complaint against Attorney.
  • B.  who informed Attorney that client will lie at trial.
  • C.  who informed Attorney that client is seeking a 2nd opinion.
  • D.  whose capacity to make adequately considered decisions in connection with the representation is diminished.

Question 2

Which phrase doesn’t belong with the others?

  • A.  Former client.
  • B.  Same or Substantially Related.
  • C.  Materially Adverse.
  • D.  Information Related to the Representation.

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

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

  • “Generally, it’s okay to advise a client to do it, as long as (1) it doesn’t rise to the level of spoliation, or otherwise impermissibly alter, conceal, or destroy evidence; and (2) you and client don’t deny it exists if asked to produce it in discovery.”

Given my response, it’s most likely that Lawyer called to inquire about advising a client:

  • A.  to “take down” or “scrub” social media posts.
  • B.  to surreptitiously record a conversation with a represented adversary.
  • C.  to move money from a bank account to an online service like PayPal or Venmo.
  • D.  to use a shared iCloud account to review a spouse’s text messages in a divorce.

Question 5

William Creighton Howard was both a doctor and lawyer.  From 1922-1939, he was legislative counsel to the American Medical Association.

In 1937, Howard and the AMA were staunchly opposed to proposed tax legislation. Among other things, the legislation required physicians and pharmacists to collect a tax on a product that they prescribed and sold.

Despite the efforts of Howard and the AMA, the legislation passed and President Roosevelt signed the ensuing Act into law.

After the bill passed, Howard complained that it had been drafted in secret and put to vote before opponents had time to read it & prepare their opposition.  (I guess some things never change.)  More importantly, he complained that Act used a deceiving title to disguise its true purpose. He also claimed that proponents of the Act had garnered support by misleading people into thinking that a particular product was prone to overuse and, when overused, caused users to become violent.

In 1965, counter-culture icon Timothy Leary was arrested and charged with violating the Tax Act.  In 1969, a unanimous U.S. Supreme Court declared the Act unconstitutional and overturned Leary’s conviction.

What product did the Act tax?

Bonus: in Leary’s case, what part of the Constitution did the Supreme Court conclude that the Tax Act violated?

the-quiz