Monday Morning Honors #254

Happy Monday!

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

ps: heeding superstition Friday’s intro worked.  I ran a marathon in Maine yesterday and qualified for the 2023 Boston Marathon.

IMG_6868

Honor Roll

Answers

Question 1

 I often mention the 7 Cs of Legal Ethics. In my opinion, conceptualizing the 7 Cs is easier than trying to memorize the specific rules and as likely to lead to the most important C, compliance.

Which of the 7 Cs includes the following?

  • Situations in which an act that is otherwise prohibited is mandatory.
  • Situations in which an act this is otherwise prohibited is permissive.
  • Among the situations in which an act is permissive, the so-called “self-defense” exception.

Confidentiality.  Paragraph (a) sets out the prohibition against disclosing information relating to the representation of a client.  Paragraphs (b) and (c) outline the exceptions.   Rule 1.6 – Confidentiality of Information

Question 2

 There’s a rule that includes the following language:

  • “A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client . . .”

True or false?   The only exception to the rule is when entering into a fee agreement with the client.

FALSE.  V.R.Pr.C. 1.8(a) sets out the requirements that must be met for a lawyer to enter into a business transaction with a client. It is not limited to fee agreements.  See, Rule 1.8 – Conflict of Interest – Current Clients – Specific Rules

Question 3

 At a CLE, I said “the rule states that a ‘lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.’ ”  I was discussing the rule that applies when:

  • A.  a client files a motion to discharge their lawyer.
  • B.  a client’s capacity to make adequately considered decisions in connection with the representation is diminished.  Rule 1.14 – Client with Diminished Capacity
  • C.  a client fails to substantially comply with the terms of a fee agreement.
  • D.  a lawyer learns that the client has used the lawyer’s services to commit a crime or fraud that is not likely to cause significant bodily or financial injury to another.

Question 4

 In honor of Pam L:

Most of the Rules of Professional Conduct apply to all lawyers.  There’s one, however, that applies only to a lawyer in a specific practice area. The rule includes a requirement that is similar to the constitutional mandate announced by the United States Supreme Court in Brady v. Maryland.  The rule applies to:

  • A.  a lawyer who represents a criminal defendant who has not attained the age of majority.
  • B.  a prosecutor in a criminal case.  Rule 3.8 – Special Responsibilities of a Prosecutor
  • C.  a lawyer who is admitted to practice in a U.S. state and a foreign country.
  • D.  a lawyer who represents a publicly held corporation whose primary purpose is to engage in interstate commerce.

Question 5

 Larry Zerner is an entertainment lawyer in Los Angeles.  He uses Twitter to update movie fans on a long-running copyright dispute.  The dispute is between the producer and screenwriter of a movie that was released in 1980.  Since then, Paramount has released 11 more films in the franchise.

Zerner’s interest in the dispute stems from more than working as a lawyer.  In 1982, Zerner appeared in one of the sequels.  In cabins at Crystal Lake, Zerner’s character and the character’s friends were attacked by the franchise’s main character. Zerner’s character’s death allowed the main character to acquire an item that Zerner’s character had used to scare his friends in a prank.  The item has since become iconic in movie lore and pop culture.

Last fall, an appeals court upheld a trial court’s decision to award the screenwriter a copyright for the original script and the characters associated with the original film.  That hasn’t ended the dispute.  The producer contends that the copyright does not include content from the sequels, including the adult version of the franchise’s main character and the iconic item that the main character acquired after dispatching the character played by Attorney Zerner.

Name the movie franchise.                         FRIDAY THE 13th

Bonus: name the iconic item.                     Jason’s hockey mask

CNN has the story of the legal battle here.

 

Five for Friday #254

Welcome to Friday and the 254th legal ethics quiz!

On Friday the 13th, I’d be remiss not to open with Michael Scott:

Unlike Michael, and as has been well-chronicled in this space over the years, I’m infinitely more than a just a little stitious.  Therefore, I’m not going to share my weekend plans or endeavor to tie this intro to the number “254.”  Doing either would be bad luck, with sharing my plans certain to ruin them. Indeed, it’s likely a bad omen that I’ve written even this much.

As such, onto the quiz!

Rules

  •  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

 I often mention the 7 Cs of Legal Ethics. In my opinion, conceptualizing the 7 Cs is easier than trying to memorize the specific rules and as likely to lead to the most important C, compliance.

Which of the 7 Cs includes the following?

  • Situations in which an act that is otherwise prohibited is mandatory.
  • Situations in which an act this is otherwise prohibited is permissive.
  • Among the situations in which an act is permissive, the so-called “self-defense” exception.

Question 2

There’s a rule that includes the following language:

  • “A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client . . .”

True or false?   The only exception to the rule is when entering into a fee agreement with the client.

Question 3

At a CLE, I said “the rule states that a ‘lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.’ ”  I was discussing the rule that applies when:

  • A.  a client files a motion to discharge their lawyer.
  • B.  a client’s capacity to make adequately considered decisions in connection with the representation is diminished.
  • C.  a client fails to substantially comply with the terms of a fee agreement.
  • D.  a lawyer learns that the client has used the lawyer’s services to commit a crime or fraud that is not likely to cause significant bodily or financial injury to another.

Question 4

In honor of Pam L:

Most of the Rules of Professional Conduct apply to all lawyers.  There’s one, however, that applies only to a lawyer in a specific practice area. The rule includes a requirement that is similar to the constitutional mandate announced by the United States Supreme Court in Brady v. Maryland.  The rule applies to:

  • A.  a lawyer who represents a criminal defendant who has not attained the age of majority.
  • B.  a prosecutor in a criminal case.
  • C. a lawyer who is admitted to practice in a U.S. state and a foreign country.
  • D. a lawyer who represents a publicly held corporation whose primary purpose is to engage in interstate commerce.

Question 5

Larry Zerner is an entertainment lawyer in Los Angeles.  Zerner uses Twitter to update movie fans on a long-running copyright dispute.  The dispute is between the producer and screenwriter of a movie that was released in 1980.  Since then, Paramount has released 11 more films in the franchise.

Zerner’s interest in the dispute stems from more than working as a lawyer.  In 1982, Zerner appeared in one of the sequels.  In cabins at Crystal Lake, Zerner’s character and the character’s friends were attacked by the franchise’s main character. Zerner’s character’s death allowed the main character to acquire an item that Zerner’s character had used to scare the friends in a prank.  The item has since become iconic in movie lore and pop culture.

Last fall, an appeals court upheld a trial court’s decision to award the screenwriter a copyright for the original script and the characters associated with the original film.  That hasn’t ended the dispute.  The producer contends that the copyright does not include content from the sequels, including the adult version of the franchise’s main character and the iconic item that the main character acquired after dispatching the character played by Attorney Zerner.

Name the movie franchise.

Bonus: name the iconic item.

Monday Morning Honors #253

Happy Monday!  And happy it is (for me) with the week’s forecast!

Many thanks to all who participated in last week’s Well-Being Week in Law. On Wednesday I’ll post a recap that includes a list of those who got involved.  Remember:  there’s no need to limit well-being to a single week in May!  Let’s make it a habit in Vermont’s legal community!

Friday’s questions are here.  The answers follow today’s Honor Roll.  Suffice to say that my Kentucky Derby picks turned out to be undeserving of honor.

First Nine Week Highest Honors and Honor Roll for NCES | Elementary

ANSWERS

Question 1

 At CLEs and in response to ethics inquiries, I often state “it’s broader than the privilege.”  When I do, which of the 7 Cs of Legal Ethics am I referring to?  The duty of _____________.

CONFIDENTIALITY.  Rule 1.6 – Confidentiality of Information, Cmt. [3]

Question 2

Which appears in a different rule than the others?

  • A.  explain a matter to the extent reasonably necessary for the client to make informed decisions about the representation.
  • B.  is likely to be a necessary witness.
  • C,  unless the testimony relates to an uncontested issue or to the nature and value of legal services rendered in the case.
  • D.  unless disqualification of the lawyer would work substantial hardship on the client.

Option A is language from Rule 1.4 and is an aspect of a lawyer’s obligation to communicate with clients. Tip: in my opinion, clients can’t make reasonably informed decisions about the representation absent reasonable expectations about the representation and unless their lawyer provides them with candid legal advice.

 Options B, C, D appear in Rule 3.7 – Lawyer as Witness

 Question 3

 When using the following phrases at a CLE, what am I discussing?

  • prohibited when representing the defendant in a criminal case.
  • prohibited in exchange for securing a divorce;
  • prohibited if based on the amount of spousal maintenance, spousal support, or property settlement in lieu thereof.
  • allowed in post-judgment divorce actions that involve collecting past due spousal maintenance.

A contingent fee. See, Rule 1.5 – Fees

Question 4

In which of the situations below are the rules governing conflicts of interest stricter than the others?  When a lawyer:

  • A.  in private practice represents clients at a pro bono clinic sponsored by a court or non-profit.
  • B.  moves from private practice to government work.
  • C.  moves from government work to private practice.
  • D. transfers from one private firm to another private firm.

In A, B, and C, Vermont’s rules allow for screening even if the affected lawyer participated personally and substantially in a matter at a prior job.  That is NOT the case when a lawyer moves from one private firm to another.  If the lawyer’s new firm represents a client whose interests are materially adverse to those of a client represented by the lawyer’s old firm in the same matter, the new firm is disqualified if the lawyer participated personally and substantially in the matter while at the old firm.  See, Rule 1.10 – Imputation of Conflicts of Interest – General Rule and this blog post.

 Question 5

 I’m not positive how widespread the news is, but some of you might have learned that a draft Supreme Court opinion was leaked this week.  Discussing it during our bread debrief, the First Brother and I agreed that we were less surprised by the leak than we were that it hadn’t happened before.  Well, as it turns out, there has been at least one other instance in which a well-known Supreme Court opinion was leaked to the press prior to being released. Indeed, it involved not one, but two leaks.

First, shortly after the arguments, the Washington Post ran a story about the Court’s internal deliberations on the case. The story included a leaked memo that one justice had written to the others.  Seven months later, and a few hours before the Court announced its opinion, Time Magazine published the opinion and the details of the vote. The incident resulted in the then Chief Justice imposing a so-called “20 second rule,” a rule that a law clerk caught communicating with the media would be fired within 20 seconds.

What was the name of the case in which the opinion was leaked?

Bonus: who was the Chief Justice who imposed the 20-second rule?

The case is Roe v. Wade.  At the time, Warren Burger was the Chief Justice.  Among others, NPR and the Washington Post have coverage.

 

Five for Friday #253: Emotional Well-Being & The Kentucky Derby

Welcome to Friday and the 253rd #fiveforfriday legal ethics quiz!

It’s Well-Being Week in Law and today’s theme is “Emotional Well-Being: Feel Well.”  The organizers challenge us to learn to identify and manage our emotions to use them in a positive manner. In this video, and using a construct I used when coaching, I discuss emotional intelligence and:

  • accepting that we’ll experience negative emotions;
  • remembering W.I.N. when responding to those negative emotions;
  • winning our 3-feet of influence;
  • striving to be one of the 4 positives that others might need for their own well-being; and,
  • my Kentucky Derby picks.

The video references my blog post W.I.N. your 3-feet of influence. Finally, there’s still time to participate in Well-Being Week in Law.  For ideas, check out the participation guide. And, if interested, email me about your participation and I’ll include you in tomorrow’s blog post summarizing Vermont’s participation in the week’s well-being activities.

Have a great weekend!

Onto the quiz!

Kentucky Derby - Home | Facebook

Rules

  •  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

 

Question 1

 At CLEs and in response to ethics inquiries, I often state “it’s broader than the privilege.”  When I do, which of the 7 Cs of Legal Ethics am I referring to?  The duty of _____________.

 Question 2

 Which appears in a different rule than the others?

  • A.  explain a matter to the extent reasonably necessary for the client to make informed decisions about the representation.
  • B.  is likely to be a necessary witness.
  • C. unless the testimony relates to an uncontested issue or to the nature and value of legal services rendered in the case.
  • D.  unless disqualification of the lawyer would work substantial hardship on the client.

Question 3

 When using the following phrases at a CLE, what am I discussing?

  • prohibited when representing the defendant in a criminal case.
  • prohibited in exchange for securing a divorce;
  • prohibited if based on the amount of spousal maintenance, spousal support, or property settlement in lieu thereof.
  • allowed in post-judgment divorce actions that involve collecting past due spousal maintenance.

Question 4

 In which of the situations below are the rules governing conflicts of interest stricter than the others?  When a lawyer:

  • A.  in private practice represents clients at a pro bono clinic sponsored by a court or non-profit.
  • B.  moves from private practice to government work.
  • C.  moves from government work to private practice.
  • D. transfers from one private firm to another private firm.

 Question 5

 I’m not positive how widespread the news is, but some of you might have learned that a draft Supreme Court opinion was leaked this week.  Discussing it during our bread debrief, the First Brother and I agreed that we were less surprised by the leak than we were that it hadn’t happened before.  Well, as it turns out, there has been at least one other instance in which a well-known Supreme Court opinion was leaked to the press prior to being released. Indeed, it involved not one, but two leaks.

First, shortly after the arguments, the Washington Post ran a story about the Court’s internal deliberations on the case. The story included a leaked memo that one justice had written to the others.  Seven months later, and a few hours before the Court announced its opinion, Time Magazine published the opinion and the details of the vote. The incident resulted in the then Chief Justice imposing a so-called “20 second rule,” a rule that a law clerk caught communicating with the media would be fired within 20 seconds.

What was the name of the case in which the opinion was leaked?

Bonus: who was the Chief Justice who imposed the 20-second rule?

Monday Morning Honors #252

Happy Monday!

Many thanks to the Young Lawyers Division of the Vermont Bar Association for putting on another fantastic event in Montreal this weekend. It was great to see so many people in-person. And how about that weather?!?!  Count me as a fan of an April/May Thaw!

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

Honor Roll

  • Karen Allen, Karen Allen Law
  • Evan Barquist, Montroll Oettinger Barquist
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, University of Illinois at Chicago Law
  • Corinne Deering, Paul Frank + Collins
  • Benjamin Gould, Paul Frank + Collins
  • Robert Grundstein
  • Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
  • Jeanne Kennedy, JB Kennedy Associates, Mother of the Blogger
  • John T. Leddy, McNeil Leddy & Sheahan
  • Tom Little, Little & Cicchetti
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
  • Herb Ogden, Esq.
  • Margaret Olnek, Divorce Coach, Assistant Professor, Vermont Law School
  • Jonathan Teller-Elsberg, Sheehey Furlong & Behm
  • Jason Warfield, J.D.
  • Thomas Wilkson, Jr., Cozen & O’Connor

ANSWERS

Question 1

Lawyer works at Firm. If Lawyer has a conflict of interest that prohibits Lawyer from representing Client, which type of conflict is least likely to be imputed to the other attorneys in Lawyer’s firm? A conflict that arises from:

  • A.  Lawyer’s representation of a former client.
  • B.  Lawyer’s current representation of another client.
  • C.  a personal interest of Lawyer’s. V.R.Pr.C. 1.10(a)
  • D.  trick question. In VT, all conflicts are imputed to others in the same firm.

Question 2

Can a lawyer accept compensation from someone other than the client?

  • A. Yes, but only if the payor is related to the client.
  • B. Yes, but only if the payor is the client’s insurance company or employer.
  • C.  Yes, if the client gives informed consent, the payor doesn’t interfere with the lawyer-client relationship, and information relating to the representation of the client is not disclosed to the payor except as authorized by the rule on client confidences. V.R.Pr.C. 1.8(f).
  • D.  A & B.

Question 3

Under Vermont’s rules, if a lawyer reasonably believes that a client intends to commit an act that will result in the death of or substantial bodily harm to the client, the lawyer ____:

  • A.  must disclose client’s intention.
  • B.  must not disclose the client’s intention.
  • C.  may disclose the client’s intention. V.R.Pr.C. 1.6(c); See, Cmt. [10].
  • D.  It depends on how old the client is.

Question 4

Lawyer called me with an inquiry related to a potential conflict between a prospective client and a former client. We discussed the distinction between the lawyer’s general knowledge of the former client’s policies and practices, versus the lawyer’s knowledge of specific facts gained during the prior representation that are relevant to the new matter.

As such, it’s most likely that Lawyer’s former client is _________:

  • A.  a minor.
  • B.  an organization. V.R.Pr.C. 1.9, Cmt. [3].
  • C.  deceased.
  • D.  represented by a law firm that once employed Lawyer.

Question 5

The Thaw is on my mind.

With “most” defined as “all,” most of my knowledge of the British Commonwealth’s legal system comes from tv and movies. Last week, I binged Anatomy of a Scandal. Set in England, here are the lawyers who appeared in a criminal trial:

Englih Lawyer

A few years ago, I loved the Australian show Rake. Here’s the star:

Rake

So, if I bump into a Canadian lawyer in Montreal, I might ask the lawyer if they have a peruke. It’s altogether possible that the lawyer will have no idea what “peruke” means. If so, what’s the word I’ll use instead? The more common term for a “peruke?”

Negative infinity points for any smart aleck comments that I should get my own a peruke.

A wig that English barristers wear in court.  Perukes are no longer worn in court in Canada.

Five for Friday #252

Welcome to Friday and the 252nd legal ethics quiz!

Later today, Andrew Manitsky and I are presenting a CLE at the YLD Thaw in Montreal. Our seminar will focus on the duty of candor. With that in mind, would you believe me if I told you that you could both win a prize and secure internet fame merely by writing a single “thank you” note next week?

Maybe you wouldn’t.  And maybe my statement includes a scoop of puffery and a dash of paltering. But,  the statement includes kernels of truth!

Next week is Well-Being Week in Law. This participation guide includes 187 suggestions, with the suggestions divided among the different themes assigned to each day.  Don’t worry. I’m not asking people to do 187 things or even to do something every day. Indeed, as the guide indicates, Well-Being Week in Law

  • is designed so that people and organizations can participate in any way that fits their goals and capacities. If you want to participate in multiple things every day, that’s great. But also feel free to select only a few things over the entire week that match your priorities.”

So, I’m asking folks to consider finding ONE thing to do during the week. And that one thing doesn’t even have to be from the list of 187 suggestions – choose whatever works for you!

Now, back to the “thank you” note.

Many of the guide’s suggestions can be completed in 20 minutes or less. No amount of participation is too “small” or “inconsequential.” Indeed, as we know too well, when it comes to improving the profession’s well-being, there is no step too small to take. For example, sending a “thank you” note qualifies!

In fact, here’s how easy it is.

Yesterday, I sent notice of Well-Being Week in Law to many who are part of Vermont’s legal community. A friend texted. The friend had recently learned that “expressing gratitude” can improve wellness. So, the friend asked whether thanking me for looking out for their wellness qualifies as participation. I replied that it does. Then I thanked the friend for asking. Boom! We’d both done our one thing!

Oh, yeah. Prizes and internet fame.

The Institute for Well-Being in the Law is offering a chance to win prizes by completing the 2022 Well-Being Week in Law Participation Survey.  Or, you can show your commitment to well-being by participating in the Social Media Challenge.  Finally, I will use my blog and Twitter account to mention any member of Vermont’s legal community who lets me know that they, their co-workers, or their office/firm participated, even if just barely, in Well-Being Week.

With all this in mind, hardly seems that my opening statement was misleading or deceptive!

Finally, and to tie this message to the week’s quiz number, yes, my goal is for as many folks as possible to consider doing 1 thing during Well-Being Week in Law. However, here’s my dream. It’s rooted in the palindromic nature of “252.”

What if you chose 2 things over the week’s 5 days? Then, what if you turned around and did the same the following week?

Here’s to the Vermont legal community making well-being a habit!

For more on Well-Being Week in Law and how to participate, see this blog post.

Onto the quiz!

Rules

  • Open book, open search engine, text-a-friend.
  • Exception:  Question 5. We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media. Hashtag it – #fiveforfriday

Question 1

Lawyer works at Firm. If Lawyer has a conflict of interest that prohibits Lawyer from representing Client, which type of conflict is least likely to be imputed to the other attorneys in Lawyer’s firm? A conflict that arises from:

  • A.  Lawyer’s representation of a former client.
  • B.  Lawyer’s current representation of another client.
  • C.  a personal interest of Lawyer’s.
  • D.  trick question. In VT, all conflicts are imputed to others in the same firm.

Question 2

Can a lawyer accept compensation from someone other than the client?

  • A. Yes, but only if the payor is related to the client.
  • B.  Yes, but only if the payor is the client’s insurance company or employer.
  • C.  Yes, if the client gives informed consent, the payor doesn’t interfere with the lawyer-client relationship, and information relating to the representation of the client is not disclosed to the payor except as authorized by the rule on client confidences.
  • D.  A & B.

Question 3

Under Vermont’s rules, if a lawyer reasonably believes that a client intends to commit an act that will result in the death of or substantial bodily harm to the client, the lawyer ____:

  • A.  must disclose the client’s intention.
  • B.  must not disclose the client’s intention.
  • C.  may disclose the client’s intention.
  • D.  It depends on how old the client is.

Question 4

Lawyer called me with an inquiry related to a potential conflict between a prospective client and a former client. We discussed the distinction between the lawyer’s general knowledge of the former client’s policies and practices, versus the lawyer’s knowledge of specific facts gained during the prior representation that are relevant to the new matter.

As such, it’s most likely that Lawyer’s former client is _________:

  • A. a minor.
  • B.  an organization.
  • C.  deceased.
  • D.  represented by a law firm that once employed Lawyer.

Question 5

The Thaw is on my mind.

With “most” defined as “all,” most of my knowledge of the British Commonwealth’s legal system comes from tv and movies. Last week, I binged Anatomy of a Scandal. Set in England, here are the lawyers who appeared in a criminal trial:

Englih Lawyer

A few years ago, I loved the Australian show Rake. Here’s the main character:

Rake

So, if I bump into a Canadian lawyer this weekend, I might ask the lawyer if they have a peruke. It’s altogether possible that the lawyer will have no idea what “peruke” means. If so, what’s the word I’ll use instead? The more common term for a “peruke?”

Negative infinity points for any smart aleck comments that I should get my own a peruke.

 

Monday Morning Honors #251

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

Honor Roll

  • Evan Barquist, Montroll Oettinger Barquist
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, University of Illinois at Chicago Law
  • Andrew Delaney, Martin Delaney & Ricci
  • Robert Grundstein
  • Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
  • Nicole Killoran, Professor, Vermont Law School
  • John T. Leddy, McNeil Leddy & Sheahan
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
  • Honorable John Valente, Vermont Superior Judge
  • Jason Warfield, J.D.

 ANSWERS

Question 1

Lawyer called me with an inquiry.  I listened, then responded: “Maybe.  Does it arise from your relationship with a current or former client? Or does it arise from a personal interest of yours?

In my response, what is “it?”

It is a conflict of interest.  My response to the inquiry refers to imputed conflicts.  See, Rule 1.10 – Imputation of Conflicts of Interest – General Rule.

Question 2

 By rule, a lawyer who has direct supervisory authority over a nonlawyer ___________:

  • A.  will be sanctioned if the nonlawyer does something that would violate the rules if done by the lawyer.
  • B.  is not professionally liable for the conduct of the nonlawyer.
  • C.  shall make reasonable efforts to ensure that the person’s conduct is compatible with the lawyer’s professional obligations.  Rule 5.3 – Responsibilites Regarding Nonlawyer Assistants.
  • D.  None of the above.  While there is a rule that applies to a lawyer’s supervision of other lawyers, there is no rule that applies to a lawyer’s supervision of nonlawyers.

Question 3

There’s a rule that prohibits a lawyer from making false or misleading communications about the lawyer or the lawyer’s services.

Does the rule prohibit truthful statements that are misleading?

Yes.  It’s rule Rule 7.1 – Communications Concerning a Lawyer’s Services It states that a “communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.”  Per Comment [2], “truthful statements that are misleading are also prohibited by this rule.”  The comment goes on to describe truthful statements that violate the rule.

Question 4

What do the Rules of Professional Conduct define as “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”

Informed Consent. Rule 1.0 – Terminology

Question 5

Season 6 of Better Call Saul debuts on Monday. I can’t wait. It’s one of my favorite shows of all-time and I am so looking forward to the final season.

For those who don’t know, the lead character, “Saul Goodman,” is an attorney who often finds himself on the wrong side of the Rules of Professional Conduct. In addition, in both Better Call Saul and Breaking Bad, Saul often mentions (complains of) his bad knees.

According to the show’s writers, Saul’s needs are so bad because of antics he engaged in well before changing his name to Saul Goodman.  Indeed, those antics resulted in a nickname associated with his real name.

What’s Saul Goodman’s real name?

And, bonus, what’s the antic-driven nickname that explains his bad knees?

James M. McGill.  Slippin’ Jimmy.

8u2S

Five for Friday #251

Welcome to a glorious Friday morning and the 251st legal ethics quiz!

I botched it this week.  This would’ve been the perfect intro to write about the iconic 251 Club of Vermont.  Alas, it wasn’t until about 8:30 this morning that I realized I should’ve made this post about a member of Vermont’s legal community who’d visited all 251 cities and towns.  In other words, I completely failed to comply with my duty of diligence.  So, for now, if you or someone you know is a verified 251er, let me know and I’ll interview you for a Wellness Wednesday post.

Instead, today, I’ll leave you with this.

A few days ago, I bumped into two of Papa’s daughters, Mary and Helen-Anne.  We attended an event at which my mom won an award. (Yay Mom!)  Helen-Anne is my mom’s youngest sister and an avid fan of this blog.  What can I say? Good taste runs in the family.

Anyhow, when we saw each other, I was wearing this tie:

IMG_6783

Aunt Mary commented on it first.  Then, AHAB (their maiden name is “Bonneau’ so my brother and I call Aunt Helen-Anne “AHAB”) grabbed my tie and asked how many diamonds are on it.  At first, I was baffled and thought it was yet another example of behavior by his children that my brother and I believe must’ve left Papa perpetually shaking his head in exasperation.  AHAB continued with something like “maybe the total is a number that you could TIE to the quiz number! Get it??? Tie to the quiz number??”

I confess. I must give credit where credit is due.

But first, and backing up a bit, when I was 6 and my brother 4, our parents took us to Virginia Beach for vacation.  I don’t remember whether AHAB was a high school senior or in her first year at UVM, but she tagged along.  One day, while tasked with babysitting us in the hotel, AHAB lost my brother. Yes, lost him.  She let him get on an elevator and then literally stood watching as the doors shut and it went wherever it went.  For all I know, the kid we found and brought back to Vermont isn’t really Patrick.

Many years later, AHAB lived just outside Boston during the 3 semesters that I attended Boston College.  I often stopped by to visit, serving as a much more responsible babysitter for my cousins than their mother had been for Patrick.  My thanks?  One night, AHAB tried to poison me with Bailey’s Irish Cream!

Now, returning to the tie: I’ve not counted the diamonds. Maybe there are about 251, or maybe there are 51 or 551.  Who knows? And, indeed, the total might be the perfect tie” to a future quiz number.  In fact, I’ve used far looser “ties.”

Therefore, AHAB, thank you!  Your clever and witty remark has earned you full and final forgiveness for the aforementioned (and all your other) transgressions!

Onto the quiz!

Rules

  •  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

Hint:  The 7 Cs of Legal Ethics.

Lawyer called me with an inquiry.  I listened, then responded: “Maybe.  Does it arise from your relationship with a current or former client? Or does it arise from a personal interest of yours?

In my response, what is “it?”

 Question 2

 By rule, a lawyer who has direct supervisory authority over a nonlawyer ___________:

  • A.  will be sanctioned if the nonlawyer does something that would violate the rules if done by the lawyer.
  • B.  cannot be held professionally liable for the nonlawyer’s misconduct.
  • C.  shall make reasonable efforts to ensure that the person’s conduct is compatible with the lawyer’s professional obligations.
  • D.  None of the above.  While there is a rule that applies to a lawyer’s supervision of other lawyers, there is no rule that applies to a lawyer’s supervision of nonlawyers.

Question 3

There’s a rule that prohibits a lawyer from making false or misleading communications about the lawyer or the lawyer’s services.

Does the rule prohibit truthful statements that are misleading?

Question 4

What do the Rules of Professional Conduct define as “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”

Question 5

Season 6 of Better Call Saul debuts on Monday. I can’t wait. It’s one of my favorite shows of all-time and I am so looking forward to the final season.

For those who don’t know, the lead character, “Saul Goodman,” is an attorney who often finds himself on the wrong side of the Rules of Professional Conduct. In addition, in both Better Call Saul and Breaking Bad, Saul often mentions (complains of) his bad knees.

According to the show’s writers, Saul’s needs are so bad because of antics he engaged in well before changing his name to Saul Goodman.  Indeed, those antics resulted in a nickname associated with his real name.  (He didn’t become “Saul Goodman” until the last episode of Season 4).

What’s Saul Goodman’s real name?

And, bonus, what’s the antic-driven nickname that explains his bad knees?

the-quiz

Five for Friday #250

Welcome to Friday, April, and the 250th #fiveforfriday legal ethics quiz!

the-quiz

For those of you thinking that today’s introduction will mark the first mention of the quiz’s 250th anniversary, not so fast my friends!  I’m exceedingly grateful to Chief Justice Reiber, Teri Corsones, and the esteemed Bob Fletcher for their thoughtful recognition of the milestone at last week’s VBA Mid-Year meeting.  Here’s a picture of the Yeti that the Chief Justice and President Fletcher presented to me after a brief interlude scripted by Teri that included an actual on-the-spot #fiveforfriday quiz:

Yeti

Their thoughtfulness stands in contrast to my own and is relevant to today’s introduction.

As most know, the quiz is usually preceded by a musing that I try to connect to the date or to the quiz number.  Check out the picture.  Long ago, the Chief Justice and the VBA leadership figured out that quiz 250 might fall on the 25th.   How fortuitous!! What better way to tie the intro to the date AND the quiz number?!?!

If only the blogger was as thoughtful and aware as others.

Instead, and for reasons that I can no longer remember, but that I assume can be summed up as “too lazy,” I didn’t post a quiz on March 11.  As such, 250 was pushed beyond the 25th.

Alas, all is not lost!

This is not a rhetorical question: who would miss such a golden opportunity to align a milestone quiz number with the date?  I mean, it was there for the taking!  It’s not like I would’ve had to sneakily skip/repeat a number or manipulate the calendar by taking multiple weeks off.

So, back to the question, who would be so oblivious???

A fool, that’s who.  Which makes it altogether appropriate that instead of delivering the 250th on the 25th,  I’m posting it on April 1.

Happy April Fool’s Day!

Seriously, blogs don’t work unless people read them.  So, to anyone who has read even a single quiz, thank you!

Moreover, as I’ve noted before, the Friday posts have allowed me to forge connections with many who I wouldn’t have otherwise. I appreciate each of you and value our connections more than you know.

Thank you for your support as I’ve pursued what I initially worried was but foolish idea that a weekly legal ethics quiz might stand a chance.

Onto the quiz!

Rules

  •  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

Attorney called me with an inquiry.  My response included this statement: “Unless the deposit was an instrument that is listed among the exceptions, the general rule is that you can’t unless you have collected funds.”

Can’t what?

Question 2

I often refer to the 7 Cs of Legal Ethics: competence, communication, confidentiality, conflicts, candor, commingling, and civility. I use them to urge lawyers to consider concepts instead of trying to memorize the rules.

Similarly, Professor Bernabe, a regular member of the #fiveforfriday Honor Roll, suggests to the students in his professional responsibility class that they associate the principles encapsulated by the Rules of Professional Conduct with the grades that they don’t want to receive for the class.

As we highlighted at last week’s VBA meeting, a comment to one of the rules states that “perhaps no professional shortcoming is more widely resented than procrastination.”  The comment does not appear in one of the “C” rules.  Rather, it’s in a rule that is one of Professor Bernabe’s “bad grades.”

Which rule/duty/principle is associated with procrastination and can be remembered by thinking of “bad grades?”

Question 3

I’m not a fan of threats to file disciplinary complaints against opposing counsel.  In fact, several jurisdictions take the position that it’s a rules violation to threaten another lawyer with a disciplinary complaint.

In most of those jurisdictions, which rule does the conduct violate? The rule that:

  • A.  Requires fairness to opposing counsel and parties.
  • B.  Requires respect for the rights of third persons.
  • C.  Prohibits conflicts of interest.
  • D.  Prohibits presenting, participating in presenting, or threatening to present criminal charges to obtain an advantage in a civil case.

Question 4

There’s a rule that prohibits a lawyer from counseling or assisting a client to engage in conduct that the lawyer knows is criminal or fraudulent.  Several years ago, Vermont added a comment to clarify that a lawyer may assist and advise clients on issues related to the validity, scope, and meaning of the statutes, rules, and regulations that apply to a specific product/industry.  The comment was added for several reasons, including the fact that the ethics rule draws no distinction between state and federal law.

What product/industry?

Question 5

 Consistent with a sentiment expressed in the introduction.

In My Cousin Vinny, Vinny’s opening statement was brief.  In fact, at 10 words, it might be the shortest opening statement in the history of opening statements. Here’s what followed:

  • Prosecution: Objection, your Honor. Counsel’s entire opening statement is argument.
  • Judge Haller: Objection sustained. The entire opening statement, with the exception of “ ________ ________” will be stricken from the record. The jury will please disregard Counselor’s entire opening statement. And you, Mr. Gambini, you will not use that kind of language in my court. Do you understand me?
  • Vinny: Yeah, yeah, yeah.

Of the already brief opening statement, what are the only two words that were not stricken from the record?

Bonus:  what had Vinny done during the prosecution’s opening statement that isn’t exactly consistent with the duties that lawyers owe to their clients?

Monday Morning Honors & Answers: #249

When I woke up, I wasn’t certain whether it was Monday or January.  I’m still not.  Oh well.

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

Honor Roll

  • Karen Allen, Karen Allen Law
  • Matthew Anderson, Pratt Vreeland Kennelly Martin & White
  • Evan Barquist, Montroll Oettinger Barquist
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, University of Illinois at Chicago Law
  • Andrew Delaney, Martin Delaney & Ricci
  • Heather Devine, Tarrant Gillies Shems
  • Rick Fadden, Barry Callebaut, Blogger’s Stoolmate
  • Robert Grundstein
  • Anthony Iarrapino, Wilscheck & Iarrapino
  • Glenn Jarrett, Jarrett & Luitjens
  • Elizabeth Kruska, Immediate Past President, Vermont Bar Association Board of Managers
  • Deb Kirchwey, Law Office of Deborah Kirchwey
  • Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
  • Pam Loginsky, Deputy Prosecuting Attorney, Pierce County, Washington
  • Kevin Lumpkin, Sheehey Furlong & Behm
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeffrey Messina, Messina Law
  • Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
  • Herb Ogden, Esq.
  • Margaret Olnek, Divorce Coach; Assistant Professor, Vermont Law School
  • Lisa Penpraze, Assistant United States Trustee, Department of Justice
  • Jim Remsen, Lord Microstrain, Blogger’s Stoolmate
  • Keith Roberts, Darby Kolter & Roberts
  • Stephanie Romeo, Ryan Smith & Carbine
  • Jonathan Teller-Elsberg, Sheehey Furlong & Behm
  • Honorable John Valente, Vermont Superior Judge
  • Jason Warfield, J.D.
  • Thomas Wilkinson, Jr., Cozen O’Connor

 ANSWERS

Question 1

At a CLE later today, I’ll urge lawyers to set reasonable expectations with clients at the outset of the representation. I’ll also remind them that a lawyer’s duty is to provide candid legal advice, even if it’s advice that the client doesn’t want to receive.

During that portion of the seminar, which 2 of the 7 Cs of legal ethics will I mention?

I confess, the two I had in mind were Communication and Competence.  However, several readers mentioned “candor,” so I’ll accept that as well.  As I blogged here, I’m of the opinion that a lawyer’s duty to communicate sufficient information to allow the client to make informed decisions includes setting reasonable expectations at the outset of the representation.  And, as I blogged here, I’m also of the opinion that the duties of competence and communication include providing candid legal advice.  See, Rule 2.1 – Advisor.

Question 2

 With respect to legal ethics, the phrase “going up the ladder” is most often used in connection with the duties of an attorney who:

  • A.  is duty bound to report another attorney to disciplinary authorities.
  • B.  represents an organization. Rule 1.13 – Organization as Client
  • C.  is being paid by someone other than the client.
  • D.  has a side business painting houses.

Question 3

Prospective Client wants to retain Lawyer for representation in a divorce from Spouse.  Spouse’s business deals will be a significant issue in the divorce.  Lawyer’s paralegal used to work at the law office that is representing Spouse.  While there, Paralegal participated personally & substantially on legal matters related to Spouse’s business deals.

Under Vermont’s rules, what’s most accurate?

  • A.  Lawyer may not represent Prospective Client. Paralegal has a conflict and it’s imputed to Lawyer.
  • B.  Lawyer may represent Prospective Client.  Prospective Client knows all about Spouse’s business deals.  Therefore, there’s no risk that Paralegal will share confidential information.
  •  C.  Lawyer may represent Prospective Client, but only if  Spouse gives informed consent, confirmed in writing.
  • D. Lawyer may represent Prospective Client.   Paralegal’s conflict is not imputed to Lawyer.  So that Paralegal does not share any confidential information about Spouse, Lawyer should screen Paralegal from any involvement in the divorce.  Rule 1.10 – Imputation of Conflicts of Interest – General Rule.

Question 4

 Attorney called me with an inquiry. I listened, then replied:

  • “Notice should come from you and the firm. A few years ago, the ABA issued an advisory ethics opinion that stated that it’s preferable to issue a joint notice.  The notice should go to all clients who deal (or who have dealt) directly with you.  What the clients do after that is up to them.”

Given my response, what will Attorney be doing soon?

Leaving the firm.  See my blog posts Leaving a Law Firm – Breaking up is hard to do & Leaving a Law Firm – Update.

Question 5

 I rarely take requests for Question 5.  However, I was recently sitting at McGillicudy’s when Rick, a non-lawyer friend and fellow stool sitter, mentioned that he’d tried a recent quiz and hadn’t gotten any right.  I replied that he shouldn’t because he’s not a lawyer!  Then, my brother told him to try another quiz, but only to worry about Question 5.

Still, I was surprised.  We were sitting in our regular bar talking, however briefly, about legal ethics and professional responsibility?!?!  The word is spreading!  So, I asked Rick his favorite fictional lawyer and promised to dedicate Question 5 to that lawyer.  Rick replied something to the effect “it’s ironic that on an ethics quiz you’ll basically be telling me the answer ahead of time!”

Aha! I did no such thing! I asked his favorite fictional lawyer. I never said that lawyer would be the answer to Question 5!

How lawyerly of me to ruin the moment.

Anyhow, Rick’s favorite fictional lawyer is Seinfeld’s Jackie Chiles.  So, without further ado, here’s to Rick!

In an episode of Seinfeld, Kramer retains Jackie Chiles to sue a woman who Kramer alleges caused him to crash his car.  Here’s a snippet of one of their conversations:

Kramer: And she’s the heir to the ________ candy bar fortune.
Jackie Chiles: Could you repeat that?
Kramer: I said she’s the heir to the ________ candy bar fortune.
Jackie Chiles: _________? That’s one of our top-selling candy bars. It’s got chocolate, peanuts, nougat. It’s delicious, scrumptious, outstanding!

Later, at trial, things go awry after Kramer, on the advice of Stam (a golf caddy) and over Jackie’s objections, asks the judge to order the woman to try something on.

Fill-in-the-blank:  what candy bar?

Bonus:  what did the judge order the woman to try on?

Of course, this was Sue Ellen Mischke, heiress to the Oh Henry! candy fortune.  The judge ordered her to try on a bra, which didn’t fit.  Leading to this exchange and today’s bonus quote from Jackie Chiles:

Judge: This court will come to order. Go ahead, Miss Mischke, try it on.
Sue Ellen: It doesn’t fit. I can’t put it on.
Jackie Chiles: [to Kramer and Stan] Damn fools! Look at that! We got nothing now! Nothing! I’ve been practicing law for 25 years, you’re listening to a caddy! This is a public humiliation! You can’t let the defendant have control of the key piece of evidence. Plus, she’s trying it on over a leotard. Of course a bra’s not gonna fit on over a leotard. A bra gotta fit right up a person’s skin. Like a glove!

Jackie_Chiles_in_The_Maestro_Seinfeld