Five for Friday #164

Welcome to #164!

Trigger warning: this post is long.  Before you hit “send” on the email to me complaining about how long, remember that nothing is stopping you from reading any further than here.

The Vermont City Marathon is Sunday.  I’m entered.  If I finish, it’ll be my 12th VCM and 21st overall.  To rest up, I’m about to turn this column over to a guest blogger.

Before I do . . .

. . . I haven’t always been a runner.

In 2006, a few of the friends I introduced to you in a blog about a long day in my basement asked me to run on their relay team in the marathon.  I agreed.  I had the good fortune of drawing the relay’s last leg: the adrenaline rush from running through a jam-packed Waterfront Park to the finish is addicting.  I’ve been hooked ever since.

Over the next two years, I built up to the full 26.2, completing my first full marathon in 2008.  The year in between? I ran on another relay team.  This time, with a team that included my good friend Jake Perkinson.

Jake is an attorney.  That’s not how I know him or why I like him.  Two of those same basement friends – Debbie & Little Sethie – used to have a post-marathon party every year.  In our younger days, we used the BBQ to pass the time between the marathon and nights at Esox that often devolved into disputes over whether dwindling dollars were better spent on another beer or another song from the bar’s fabled digital jukebox.  I met Jake at one of those post-marathon soirees.

Jake kept a diary of his training for our 2007 relay team. He sent it to us a few days after the race.  It is, beyond doubt both reasonable & unreasonable, my favorite work authored by a lawyer-runner.

With Jake’s consent – informed & confirmed in writing – I’m sharing it here today.  Jake’s self-effacing humor while recounting a foray into wellness is, itself, wellness.

Have a fantastic weekend!

Now, after too much ado, take it away Jake!

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

(1/8) MARATHON MAN

The True and Complete Diary of Pappy Perkinson’s Preparation for the 2007 Vermont City Marathon Relay Team

PRELIMINARIES

January 4, 2007:  Received an e-mail from Michael Moore (a/k/a Chooch) notifying friends of the impending registration deadline for the Vermont City Marathon, an event that has become a tradition among a certain circle of friends.  Feeling mildly (yet somehow pleasantly) disconnected from that circle, I reply immediately agreeing to participate.  Then, even more immediately, I put the matter out of mind for the next three months believing that the end of May will never come and, if it does, I will likely be dead anyway.  My confidence in this plan of action is so high that I dedicate no time at all to concocting the inevitably necessary excuses to use when I am forced to ultimately renege on this ill-conceived and precipitous commitment.

March 31, 2007:  A message from Chooch is left on the home answering machine requesting information to permit registration.  I studiously ignore this communication.

April 3, 2007:  While drinking a long-neck MGD and using the bottle cap to scrape the last bits of ice cream from a discarded (I believe prematurely) carton, I am informed by my wife, Cate, that I am not to make a joke out of running in the marathon.  I force myself to respond with a look of surprise mingled with hurt which causes me to choke on the bottle cap.  After performing the Heimlich maneuver on myself (Cate refusing all assistance), I tell Cate not to worry which she rightfully interprets as proof that I have no intention of making any serious effort.  Of course, she is right.

April 5, 2007:  I receive a call from Chooch regarding the particulars of registration.  After providing him with the description of a distant cousin for identification purposes, I inquire who will be on our team.  Chooch lists the runners which confirms that I am, indeed, the weakest link.  I know that even the exceedingly low expectations held for me will be impossible to meet and that no matter how low the bar is set it is a standard which I cannot achieve and which I am unwilling to attempt.  This preys on me for small parts of several days.

TRAINING DAY(S)

 April 9, 2007: 8:00 p.m.  My fear of dying on the course has gotten the better of my pride in slothfulness and I decide to go to bed at 8:30 so that I am able to get up refreshed at 5:00 a.m. to run before the children wake up and the household descends into mayhem.  To that end I carefully select my running gear and place it in an orderly pile at the top of the stairs so I can alight in the morning without disturbing my beautiful wife and children.

April 9, 2007 11:30 p.m.  I am awoken by the cries of an infant.  I pretend to still be asleep until Cate can no longer bear the noise and gets up to comfort the child at which point I act as though her movements have awakened me and roll fitfully over into the warmed-up spot on her side of the bed.

April 9, 2007 11:45 p.m.  I decide that if I am not asleep now, I will be too tired at 5:00 a.m. to do anything and turn off the alarm clock.  I fall asleep immediately.

April 11, 2007: 5:15 a.m.  I am awoken by the sounds of a high-pitched train whistle as interpreted by the deceptively powerful lungs of a three-year-old named Cyrus.  I know this means he will soon trundle his footy pajamas down to our bedroom, intentionally waking the infant on his way either by hooting loudly into her room or vigorously shaking the crib if evidence of her wakefulness is not immediately apparent.  When I hear his door open at 5:30 I leap out of bed and tell Cate that I am going for a run.

I quickly dress, feeling self-satisfied (whether about actually getting out to run or avoiding the task of dealing with two crying children at dawn I will leave to the reader’s own informed speculation).  As I step outside bracing for a cold blast of late winter wind, I am pleasantly surprised by the stillness of the air and a light humidity taking the edge off 20 degrees Fahrenheit.  Without stretching (not because I am foolish or lazy, but simply because I cannot) I begin my run.

Stepping out into the street I decide to meet this challenge head on and, rejecting the easy way, direct my feet UP hill.  As I begin, I feel I am magnificent, I am indomitable, I am supreme!  I glory in the early morning air and the feeling of the ground moving freely away beneath my feet.  A crescent moon is brightly lit in the pale gray southeastern sky, shouldering silent service as a witness to the graceful beauty of my ambulation.

And then it begins.  Twenty yards away from my house my throat dries out and after several more strides it begins to seethe as though something is trying to saw its way out of my neck using a cheese grater lubricated with battery acid.  Every breath is like swallowing a box of needles and every step is torture.  The pain induces a combination of nausea and dizziness that I have not experienced for over fifteen years absent alcoholic supplements.  In an attempt to psychologically urge myself onward I think back to my days as a youth when I reveled in the exhilaration of pushing my body to the breaking point and beyond.  And I thought to myself how stupid I was back then.

Despite the pain, I power through and, in a twist of unfathomable divine design, while my throat is a desert, my nose begins to fill with mucus.  I grimace and try to swallow to relieve the parched expanse of my throat but only choke on a bilious mixture of snot and thick saliva.  Now I am tired.  And uncomfortable.  But not defeated.  I give a stallion’s snort and hock a huge lugee with as much force as I can muster.  Unfortunately, given my physical condition, the missile barely clears my lips and plummets down the front of my sweatshirt, leaving a gray-green paisley stain.

After 200 yards I reach the top of the hill, expecting relief, only to look out from its summit at what always seemed to be a gently rising straightaway, now looming forbiddingly as a hideous and gross trick of nature.  “A hill on top of a hill!  This is bullshit,” I think to myself.  But I persevere and eventually reach the crest of this cunning confirmation of nature’s devilish duplicity.

As I approach the intersection capping this second rise I realize I have a choice to make.  I can turn now or push on for another 200 yards.  I make my decision quickly, resolving that if I go too far today, I might eliminate a goal that could otherwise motivate me tomorrow.  With a dramatic show of feigned regret, I turn my feet to the downward slope towards home.

Now my breathing is coming easier, and I concentrate on my form, keeping a four-count beat and raising my arms high.  I increase my speed and feel the wind blowing through my billowy locks.  Then, from behind, I hear the squeaking noise of rubber on asphalt and I am overtaken by a woman with graying hair outfitted in spandex pants and a knitted sweater who does not raise her hands above her hips when she runs.  As she trots past me I am given over to a surreal feeling of swimming through concrete.  I contemplate an attempt at increasing my speed, at least to keep her in sight for a minute or two, but then decide the wiser and more dignified course is to pretend I am engaged in a cool down exercise.  I consciously reduce my speed and pretend to stretch my upper body causing me to stumble and almost fall.  Realizing that any fall will crush me both mentally and physically and lead to an emotional death spiral I know I do not have the strength to recover from, I dispense with the cool-down ruse and return my full attention to running.  As I approach my house, my septuagenarian companion on this early morning run turns to climb the hill I started out on and breaks into a sprint, disappearing over the top before I reach the corner.

As I climb the steps to my house, I bend down with a monumental effort to pick up the morning paper and walk into a mudroom that on any other day sends shivers through my body with its ice-box coolness but which today feels like walking into a sauna.  I strip off my clothes, tearing at them like a madman and run a cold shower, nearly collapsing with a coughing fit before I am able to wedge myself into the stall for support.

I spend the rest of the day sweating, coughing and feeling a foreboding soreness in my lungs.  This is going to be great.  I can’t wait for tomorrow.

April 12, 2007:  1:30 a.m.  I am lying in bed, awoken once again by my own little piece of heaven fallen to earth.  As I attempt to turn over to pull the pillow over my head and drown out her nocturnal siren song I am suddenly seized with simultaneous shooting pains in my forearms, thighs, back and chest.  This fills me with a mix of emotion:  pain (obviously), but also, and to a much greater degree, relief, because here is my excuse not to go running in the morning.  My guilt wrestles momentarily with the more aggressive of my venal spirits and quickly gives up as Cate comforts the baby and I am able to fall gently back to sleep, safe in the knowledge that rest and recuperation is an important part of any training program.  I send thanks to Heaven for allowing me to formulate this rationale without the slightest strain at a moment’s notice and I am at peace with the World.

April 12, 2007:   6:30 a.m. (just after I should be finishing up my morning run) it begins to snow and the knowledge that I may likely lose another opportunity to run tomorrow briefly provides a toehold for my guilty conscience.  But, like a fantasy Battle of the Bands between Kiss and New Kids on the Block my darker angels push guilt off its precarious ledge and continue to pummel it on its woeful descent, making sure it does not ever think about getting up again.

May 2, 2007: 5:15 a.m.  The baby is visiting the bed so I am awake.  I feel strangely invigorated and lean over to whisper to my wife: “I’m going to go running.”  She responds: “I thought you were going to say you were going to get a beer.”  The baby smiles, drools and then starts crying so I shuffle down the stairs and launch another assault against Ledge Road.

This time I wisely cut off the ascent of the Ledge by detouring down Iranistan Road, still uphill, but a much gentler rise.  My lungs begin to seize and my throat provides a reprise of its past agitations by simultaneously constricting and drying out.  But not as bad as last time.  I make it about 2 miles on fairly flat streets.  When I get to the bottom of my street I break into a sprint and use my last remaining strength to reach my driveway.  As I attempt this last parry, the paper boy gives me a dirty look for holding him up.

The sprint nearly kills me and it takes a while to catch my breath.  Inside again I begin to feel ill and now have a pounding headache.  I hate Chooch.

May 22, 2007:  I realize that I am beginning to panic because I have not determined whether a five-kilometer run will kill me or not.  I start off again, gasping for air as usual, but find that after two miles I am still alive.  This is proof enough and I walk the rest of the way home.

EPILOGUE

Team I Hate Running did not finish last.  I believe I averaged 11 minutes per mile – not bad for three days of training over five months (especially considering how much I drank the day before).  Four days after the race my legs still hurt.  I can’t wait until next year.

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

Onto the quiz!

Rules

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

Question 1

You’re at a CLE.  You are re-reading Jake’s marathon diary because it’s so awesome. Still, your brain is vaguely aware of me saying things like:

  • it must be not be unreasonable;
  • it must be reduced to a writing that is signed by the client;
  • it must state whether expenses will be deducted before or after it’s calculated; and,
  • it must be based on the outcome of the matter.  If it’s based on an offer that the client rejects, at least one state’s Supreme Court has held that it’s unethical.

What was I discussing?

Question 2

By rule, a “prospective client” is one who, in good faith, discussed with a lawyer the possibility of retaining the lawyer.  Which is most accurate?

Per the rule, the lawyer shall not represent a client:

  • A.   with interests materially adverse to the prospective client.
  • B.   with interests materially adverse to the prospective client in the same or a substantially related matter.
  • C.  with interests materially adverse to the prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to the prospective client.
  • D.  None of the above.  We’ve yet to adopt any version of the ABA Model Rule on prospective clients.

Question 3

By rule, a lawyer may not settle a claim or potential claim for malpractice with an unrepresented client or former client.

  • A.  True.
  • B.  True, unless the client gives informed consent.
  • C.  True, unless the client gives informed consent, confirmed in writing.
  • D.  True, unless the client or former client is advised in writing of the desirability of seeking and is given a reasonably opportunity to seek the advice of independent legal counsel in connection with the matter.

Question 4

Having made this confession, it pains Me to say that I’m not a big fan of Taylor Swift’s new single.  Still, in her honor, one of these things is not like the other.   Which one?

The rule that requires a lawyer to:

  • A.  keep copies of advertisements for 2 years
  • B.  keep confidential information relating to the representation of client
  • C.  keep trust account records for 6 years
  • D.  keep the lawyer’s own funds separate from client funds

Question 5

He’s back!

There’s a lawyer who used to represent a woman whose real name is Stephanie Clifford.  This week, federal prosecutors alleged that the lawyer sent a “fraudulent and unauthorized letter” to Clifford’s literary agent in order to divert approximately $300,000 intended for Ms. Clifford.  Per Manhattan U.S. Attorney Geoffrey Berman:

  • “Far from zealously representing his client, [the lawyer] as alleged, instead engaged in outright deception and theft, victimizing rather than advocating for his client.”

You likely know the client by a name other than Stephanie Clifford.

Name the lawyer.

Bonus: tell me the client’s more well-known name.

Image result for vermont city marathon

Monday Morning Answers

Welcome to Monday!

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

Honor Roll

Answers

Question 1

When a lawyer holds funds in which two or more persons claim interests, a rule specifically requires the lawyer:

  • A.   to resolve the dispute;
  • B.   to keep the funds separate until the dispute is resolved;
  • C.   to promptly distribute all portions that are not in dispute;
  • D.   B & C.  V.R.Pr.C. 1.15(e)

Question 2

Speaking of Watergate, if you’re at a CLE and hear me talking about a lawyer’s duty “to go up the ladder,” I’m most likely talking about a lawyer who represents:

  • A.  an organizationSee, Rule 1.13(b)
  • B.  both the insured and an insurance company in a civil case.
  • C.  a child.
  • D.  a client whose deadline to appeal is about to run, but who has not instructed the lawyer whether to file the appeal.

Question 3

Consider the following:

  • a reasonable belief that the lawyer will be able to provide competent & diligent representation to each affected client;
  • no assertion of a claim by one client against another represented by the same lawyer;
  • informed consent, confirmed in writing.

By rule, each of the 3 is relevant to what general question?

Each of 3 appears in Rule 1.7(b) and are relevant to whether a lawyer may represent a client notwithstanding a concurrent conflict of interest. 

Question 4

Is there a rule that specifcially addresses a lawyer’s ethical duties when serving as an arbitrator, mediator, or in any other such capacity to assist two or more persons who are not clients to resolve a dispute?

  • A.   No.
  • B.   No.  The Code of Judicial Conduct applies.
  • C.   Yes.  There’s a rule that applies to so-called “third-party neutrals.”
  • D.   Yes.  There’s a rule that applies to so-called “third-party neutrals” and a comment to the rule indicates that lawyers serving as such may also be subject to other codes of ethics.

It’s Rule 2.4.  Comment [2] mentions other codes of ethics. 

Question 5

I’ve often spoken on lawyer’s duty to provide competent advice related to a client’s preservation of electronically stored information that might have potential evidentiary value.

Recently, one of the world’s most famous athletes was named as a defendant in a wrongful death suit.  The athlete owns a restaurant that is also a defendant.  Central to the case is an allegation that the restaurant over-served an employee who drank at the bar after his shift, drove, and died in a car accident after leaving.

This week, the plaintiff’s lawyers accused the restaurant of destroying video of the decedent drinking at the bar in the hours prior to the fatal crash.

Who is the athlete?

Tiger Woods.    Yahoo! Sports has the story here.

Image result for images of tiger woods

Five for Friday #163

Welcome to Five for Friday!

Impeachment.  Treason.  A flawed Electoral College.  Special prosecutors investigating lawyers. Lawyers not treating others with respect and courtesy.

I’ve got a little bit of each for you in this week’s column.  And the most recent event I’m going to reference took place 46 years ago!  The more things change . . . yada, yada, yada.

Digging for topics this morning, a few tidbits interested me. On this day in history:

  • John Jay died (1829)
  • Archibald Cox was born (1912)
  • The Watergate hearings began (1973)

Thinking about each, I was struck by how we tend to think that our moment in time is of greater import or weightier than any prior moment.

Nope.  We’ve always had our moments.  Lawyers included.

I’ve referenced Watergate, both in this blog and at CLEs. It was a seminal event in legal ethics.  That’s NOT a political statement. In my book, no party or philosophy lacks members or adherents unable to conform themselves to the Rules of Professional Conduct.  Indeed, when it comes to presidents who’ve lost their law licenses, the major parties stand tied 1-1.

Let’s hope that’s a tie that’s never broken.

Rather, Watergate’s relation to and impact on legal ethics is fact.  At least 14 lawyers tied to the Nixon administration or reelection campaign eventually had disciplinary sanctions imposed against their law licenses: 8 disbarred, 6 suspended.  As the ABA Journal wrote here, the fallout included significant changes to the law of legal ethics and the rules governing lawyers.

In short, Watergate was a Moment.

Now, speaking of ties . . .

John Jay, most of you know, was the first Chief Justice of the United States Supreme Court.  Prior to this morning, I didn’t know much about him.  After learning that today is the anniversary of his death, I started researching him.  One link led to another and, next thing I knew, I found myself reading about a lawyer who had more than his fair share of moments: Aaron Burr.

In Jay’s day, the Electoral College was kind of a mess.  To wit: the presidential election of 1800.  Two lawyers tied.  Thomas Jefferson and Aaron Burr each received 73 electoral votes. As if a presidential tie wasn’t a “moment” in and of itself, Jefferson & Burr were running mates!  To tell the story would swallow this post.  You can read about it here.

(Aside: anyone who watches VEEP will know how we break ties for the presidency. Amazing that I learned about the 12th Amendment to the U.S. Constitution from an HBO sitcom.)

Image result for selina meyers veep

Anyhow, Aaron Burr fascinates me.

  • 1800: Burr ran as Jefferson’s vice-president, and apparently refused to concede when the two tied in the Electoral College.
  • 1801:  the tie was broken in Jefferson’s favor, with Burr’s long-time political foe, Alexander Hamilton, playing a key role in breaking it.
  • 1804: Burr shot & killed Hamilton in a duel.
  • 1805: as vice-president, Burr presided over the impeachment trial of Supreme Court Justice Samuel Chase.  Chase was acquitted.
  • 1807: Burr was arrested & charged with Treason.  He was acquitted.

Those are Moments!!

Alas, this post doesn’t really have a point.  I do, however, have a thought.

There are a lot of lawyers out there winning their 3-feet of influence, saving star fish, and being nice.  Are such things little moments?  Yes.  But keep up the good work.

Because, at the moment, we need more little moments.

Onto the quiz!

the-quiz

Rules

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

Question 1

When a lawyer holds funds in which two or more persons claim interests, a rule specifically requires the lawyer:

  • A.   to resolve the dispute;
  • B.   to keep the funds separate until the dispute is resolved;
  • C.   to promptly distribute all portions that are not in dispute;
  • D.   B & C.

Question 2

Speaking of Watergate, if you’re at a CLE and hear me talking about a lawyer’s duty “to go up the ladder,” I’m most likely talking about a lawyer who represents:

  • A.  an organization.
  • B.  both the insured and an insurance company in a civil case.
  • C.  a child.
  • D.  a client whose deadline to appeal is about to run, but who has not instructed the lawyer whether to file the appeal.

Question 3

Consider the following:

  • a reasonable belief that the lawyer will be able to provide competent & diligent representation to each affected client;
  • no assertion of a claim by one client against another represented by the same lawyer;
  • informed consent, confirmed in writing.

By rule, each of the 3 is relevant to what general question?

Question 4

Is there a rule that specifcially addresses a lawyer’s ethical duties when serving as an arbitrator, mediator, or in any other such capacity to assist two or more persons who are not clients to resolve a dispute?

  • A.   No.
  • B.   No.  The Code of Judicial Conduct applies.
  • C.   Yes.  There’s a rule that applies to so-called “third-party neutrals.”
  • D.   Yes.  There’s a rule that applies to so-called “third-party neutrals” and a comment to the rule indicates that lawyers serving as such may also be subject to other codes of ethics.

Question 5

I’ve often spoken on lawyer’s duty to provide competent advice related to a client’s preservation of electronically stored information that might have potential evidentiary value.

Recently, one of the world’s most famous athletes was named as a defendant in a wrongful death suit.  The athlete owns a restaurant that is also a defendant.  Central to the case is an allegation that the restaurant over-served an employee who drank at the bar after his shift, drove, and died in a car accident after leaving.

This week, the plaintiff’s lawyers accused the restaurant of destroying video of the decedent drinking at the bar in the hours prior to the fatal crash.

Who is the athlete?

 

Monday Morning Answers #163

Welcome to Monday!

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

Honor Roll

  • Karen Allen, Esq.
  • Alberto Bernabe, Professor, John Marshall Law School
  • CeCe ConradCostello, Valente & Gentry
  • Erin GilmoreRyan Smith & Carbine
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • John LeddyMcNeil, Leddy, & Sheahan
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Kevin LumpkinSheehey Furlong & Behm
  • Lon McClintockMcClintock Law Offices
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Hal Miller, First American
  • Herb Ogden, Esq.
  • Eric ParkerBauer Gravel & Farnham
  • Jim Runcie, Ouimette & Runcie
  • Carie TarteSenior Paralegal, Maley & Maley

Answers

Question 1

By rule, a lawyer shall not make a false or misleading communication about the lawyer or the lawyer services.   Which of the following violate(s) the rule?

  • A.  Material misrepresentations of fact or law.
  • B.  Communications that omit a fact necessary to make the statement, considered as a whole, not materially misleading.
  • C.  Both A & B.   V.R.Pr.C. 7.1
  • D.  Trick question.  There is no such rule.

Question 2

You’re at a CLE.  You hear me say:

  • “The privilege is different from the rule.  The rule talks about ‘information relating to the representation.’ A comment to the rule makes it clear that this encompasses more information than is covered by the privilege.”

What was I talking about?  The rule on:

  • A. Client confidences.  V.R.Pr.C. 1.6 Comment 3
  • B.  A lawyer’s duties upon the receipt of inadvertently produced information.
  • C.  Former Clients.
  • D.  Prospective Clients.

Question 3

Consider the following:

  1. instruments drawn on banks;
  2. checks drawn on an IOLTA of a licensed Vermont lawyer or on the IORTA of a licensed Vermont real estate broker;
  3. checks issued by the United States or the State of Vermont;
  4. personal checks, not to exceed $1,000 in the aggregate per transaction; and,
  5. checks drawn on or issued by insurance companies, title insurance companies, or title insurance agencies that are listed in Vermont.

They are:

  • A. signs of a potential trust account scam.
  • B.  instruments that MUST NOT be deposited into an IOLTA
  • C.  instruments that MUST NOT be deposited into an operating account.
  • D.  instruments that a lawyer may presume to constitute “collected funds” upon deposit.  V.R.Pr.C. 1.15(g) and this blog post from last week

Question 4

There’s a rule that prohibits extrajudicial statements that will have a substantial likelihood of materially prejudicing an adjudicative proceeding.   Which is most accurate?

  • A.  It applies only to the prosecutor in a criminal case.
  • B.  It applies to “any lawyer participating in a criminal case.”
  • C.  There are no exceptions to the general prohibition.
  • D.  It applies to any “lawyer who is participating or has participated in the investigation or litigation of a matter,” whether criminal or not.  V.R.Pr.C. 3.6

Question 5

I’m the chair of the VBA’s Pro Bono Committee.  Also, this evening, I’m speaking at the Vermont Bar Foundation’s Justice Fest.

Cheslie Kryst is an attorney at a firm in North Carolina.  Over the past few years, she provided a significant amount of pro bono work to inmates seeking shorter sentences.  Yes!

Last week, Attorney Kryst made national news.   Why?

  • A. She was crowned Miss USA.  Stories from the ABA Journal and CNN
  • B. She appeared in an episode of Game of  Thrones.
  • C. She became engaged to one of her pro bono clients whose sentence was commuted as a result of her work.
  • D.  She defeated James Holzhauer on Jeopardy, ending his stunning reign as champion.

Image result for cheslie kryst

Five for Friday #162

Welcome to Friday!

I’m stuck.  Can’t figure out what to write about in this intro.

Normally, “162” would lead me to write about baseball.  Been there, done that about 162 times.

I’ve often used the date as inspiration.  5/10 reminds me of my grandfather.  For years, he worked at Hill’s 5 & 10 in Bradford.  But, I already blogged about Papa .

It’s Mother’s Day weekend. Alas, my mom took center stage earlier this year.

However, as kind as I was in that blog, I just realized something.  As I plan my weekend, I have serious questions about my mom and her sisters.

My mom is on the board at Lund. This weekend, Lund is hosting the 2nd Annual Pitchin’ for a Purpose cornhole tournament.  A bunch of teams are entered, including one named “So-Fa-Bu-Es.”  The team includes 3 of my mom’s sisters and a close family friend.  They played last year and decided to enter again.

One of the sisters, Martha, is injured.  Shoulder problems. She asked me to sub for her.  I agreed.  Because I’m as good a nephew as I am a son.

But what the heck?

Papa had a horseshoe pit.  I’ve been to a lot of picnics and BBQs over the years and seen scant evidence that his daughters ever used it.  How am I a “sub?” I should’ve been the first person named to this team!

More importantly, let’s talk about So-Fa-Bu-Es.  What kind of name is that?

Witty team names are awesome.  They’re one of my favorite aspects of pub trivia nights.  In 2006, I played on a team in the Vermont Pub Trivia Championship.  Team members:

  • Deb Emerson
  • Seth Emerson
  • Scott Bliss
  • Richard “Dickie Mac” McAvenia
  • Patrick Kennedy
  • Michael Kennedy

1 gal and 5 guys in a pop-culturish event?  Mulva & The Low Talkers.

THAT is a team name!

(Aside: umm, we won.  State champs baby!  We edged out another cleverly named team: Shadoe Stevens for the Win.)

A few months ago, the intro to the quiz was about Shakespeare. Elizabeth KruskaWesley Lawrence submitted answers under the team name As You Like It.  Stephanie Romeo & Charles Romeo have entered under the name Mr. & Mrs. Hadley v. Baxendale.

Anyhow, So-Fa-Bu-Es. 

The theory behind the team name is:

  • it sounds like “so fabulous!”
  • the sisters live in South Burlington, Fairfield, and Essex.

Umm, ok.

I know which of Papa’s daughters picked it.  I’ll leave it at this: it wasn’t either of the 4 aunts he gave me.

On that note, I suppose I should stop writing and prepare for the fallout.  Failing to prepare is preparing to fail.  As part of my preparation, I’ll end with this.

On Mother’s Day weekend, I’ll be with my mom, my godmother, and the moms who raised my fantastic cousins.  I love each of them very much and I’m looking forward to doing something together for a good cause.  Even if we don’t score a single point, it’s going to be sooooooo fabulous.

But we better score some damn points.

PS: my mom and her sisters can sing! Combine their vocal talent with my pinpoint accuracy – and my (secret) affinity for a particular movie – our team name next year:

Pitch Perfect.

Onto the quiz!

Rules

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

Question 1

By rule, a lawyer shall not make a false or misleading communication about the lawyer or the lawyer services.   Which of the following violate(s) the rule?

  • A.  Material misrepresentations of fact or law.
  • B.  Communications that omit a fact necessary to make the statement, considered as a whole, not materially misleading.
  • C.  Both A & B.
  • D.  Trick question.  There is no such rule.

Question 2

You’re at a CLE.  You hear me say:

  • “The privilege is different from the rule.  The rule talks about ‘information relating to the representation.’ A comment to the rule makes it clear that this encompasses more information than is covered by the privilege.”

What was I talking about?  The rule on:

  • A. Client confidences.
  • B.  A lawyer’s duties upon the receipt of inadvertently produced information.
  • C.  Former Clients.
  • D.  Prospective Clients.

Question 3

Consider the following:

  1. instruments drawn on banks;
  2. checks drawn on an IOLTA of a licensed Vermont lawyer or on the IORTA of a licensed Vermont real estate broker;
  3. checks issued by the United States or the State of Vermont;
  4. personal checks, not to exceed $1,000 in the aggregate per transaction; and,
  5. checks drawn on or issued by insurance companies, title insurance companies, or title insurance agencies that are listed in Vermont.

They are:

  • A. signs of a potential trust account scam.
  • B.  instruments that MUST NOT be deposited into an IOLTA
  • C.  instruments that MUST NOT be deposited into an operating account.
  • D.  instruments that a lawyer may presume to constitute “collected funds” upon deposit.

Question 4

There’s a rule that prohibits extrajudicial statements that will have a substantial likelihood of materially prejudicing an adjudicative proceeding.   Which is most accurate?

  • A.  It applies only to the prosecutor in a criminal case.
  • B.  It applies to “any lawyer participating in a criminal case.”
  • C.  There are no exceptions to the general prohibition.
  • D.  It applies to any “lawyer who is participating or has participated in the investigation or litigation of a matter,” whether criminal or not.

Question 5

I’m the chair of the VBA’s Pro Bono Committee.  Also, this evening, I’m speaking at the Vermont Bar Foundation’s Justice Fest.

Cheslie Kryst is an attorney at a firm in North Carolina.  Over the past few years, she provided a significant amount of pro bono work to inmates seeking shorter sentences.  Yes!

Last week, Attorney Kryst made national news.   Why?

  • A. She was crowned Miss USA.
  • B. She appeared in an episode of Game of  Thrones.
  • C. She became engaged to one of her pro bono clients whose sentence was commuted as a result of her work.
  • D.  She defeated James Holzhauer on Jeopardy, ending his stunning reign as champion.

 

the-quiz

 

 

 

 

 

 

Monday Morning Answers #161

Welcome to Monday!

Friday’s questions are here.  Yes, I completed the Indy Mega Mini Challenge and I “kissed the bricks.”  Today’s answers follow the Honor Roll.

IMG_2613

Honor Roll

Answers

Question 1

True or false.

Whenever a subordinate lawyer acts at the direction of a supervisor, the subordinate is relieved of responsibility for a violation of the rules.

FALSE.  Rule 5.2 sets out the duties of a subordinate lawyer.  A subordinate lawyer is relieved of responsibility only if the associate acts in accordance with a supervisor’s reasonable resolution of an arguable professional duty.

Question 2

If revealed in a compliance or trust account audit, which is most likely to concern disciplinary counsel?

  • A.  records showing that the lawyer has regularly deposited the lawyer’s own funds into the account to cover service charges and fees, albeit only in amounts necessary to pay those charges and fees.
  • B.  records documenting that the lawyer has reconciled the account on a quarterly basis.
  • C.  They’ll be dealt with the same, both are violations.
  • D.  They’ll be dealt with the same, neither is a violation.

Option A will not concern disciplinary counsel.  Rule 1.15(b) authorizes the conduct.  However, Rule 1.15A(a)(4) requires reconciliation to be no less than monthly.  So, quarterly reconciliation will draw disciplinary counsel’s attention.

Question 3

Which type of conflict is not imputed to other lawyers in the same firm?

  • A.  a conflict that arises under Rule 1.7.
  • B.  a conflict that arises under Rule 1.9.
  • C.  a conflict that arises under 1.7 or 1.9, as long as the conflict is based on a personal interest of the lawyer and does not present a significant risk of materially limiting the representation of the client by the other lawyers in the firm.  V.R.Pr.C. 1.10
  • D.  Trick question.  Vermont imputes all conflicts.

Question 4

Which is found in a different rule than the others?  A lawyer shall:

  • A.   as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
  • B.   keep the client reasonably informed about the status of a matter.
  • C.   promptly comply with reasonable requests for information.
  • D.   consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct.

The language in A is the duty owed to a client who suffers from a diminished capacity. It is in Rule 1.14.  The other options all appear in Rule 1.4, the rule that describes the duty to communicate with a client.

Question 5

I’m going to Indiana this weekend.  I’m also a former high school basketball coach.

Jury tampering is unethical.  In every state.

Name the actor or actress who starred:

  • as a high school basketball coach in a movie set in Indiana; and,
  • as a consultant who specialized in tampering with juries in a movie that put the firearms industry on trial.

Gene Hackman was Coach Norman Dale in Hoosiers and jury consultant Rankin Fitch in Runaway Jury.

Image result for images of gene hackman hoosiers

 

Five for Friday #161

Alright stop, collaborate and listen.

Today, the fall of 1990 is on my mind.  Here’s why.

October 3, 1990.  That night, the Boston Red Sox won an important game.  I confess, I don’t have the date memorized. I had to look it up for this post.  However, I’ve always known exactly where I watched and with who.

At the time, I was about one month into my first semester at George Washington Law School.  A classmate and friend, Dave Moody, did his undergrad at the University of Washington.  There, Dave was good friends with Tom Lewis.  Tom came to D.C. with Dave.  Not for law school, but to check out the east while he worked for Senator Dole.  Dave introduced me to Tom, and we’ve been friends ever since.

The aforementioned Red Sox game is my earliest memory of doing something with Tom.  We watched at Lindys Red Lion in Foggy Bottom.  My 3 years in the DMV included great adventures with Tom, most of which involved sports.  We watched a Redskins game from the RFK press box, failed miserably at multiple attempts to talk our way (sneak) into an NCAA tournament game at Cole Field House, and, on a crazy day in North Carolina, set the Durham Athletic Park record for the fastest run from the third base dugout to the center field fence.

I think there were others, but Tom’s kids (see below) are old enough to read and ask questions now.

We also played sports.  One team of ours was a coed flag football team sponsored by a bar.  Led by Suzanne Dickey, a fleet-footed & sure-handed receiver, our team won the league championship.

Today, Suzanne & Tom are married and, with their sons Zach & Sam, live outside of Indianapolis.  I’m visiting them this weekend.  The boys have baseball games that I’m excited to watch and I’m running the Indy Mega Mini Challenge.  The challenge consists of two races: a 5K followed immediately by a half marathon.

Image result for indy mini logo

I don’t know how I’ll do in the challenge.  However, three things about his weekend’s trip are for certain:

Which brings me back to the fall of 1990.

At the time, one of the country’s hottest songs was Vanilla Ice’s Ice Ice BabySo hot that exactly one month after Tom and I watched that Sox game together, the song reached #1 on the Billboard Hot 100.

Ummm, yes.  #1.

Image result for images of vanilla ice

I was part of the problem.  I could sing every word.  A few months later, our friend Dirk put up fliers around the law school advertising his Super Bowl party.  Back then, I had red hair.  Dirk’s fliers promised halftime entertainment “featuring Mike ‘Strawberry Ice’ Kennedy.”

Long story short, my alter ego never performed.  I don’t remember why not.  I probably chickened out.  But, let’s go with this:  I was smart enough not to try anything musical a scant hour or so after Whitney Houston had delivered the greatest performance of a national anthem in the history of performances, nations, and anthems.

Yet, the nickname stuck.  Tom shortened it and, ever since, has called me “Ice.” This weekend will be no different.

I know what you’re thinking.  You’re wrong.  Nobody is ever too old to have a friend who calls them by a nickname.

Here’s to those friends.  They’re the best.

Word to your mother.

Onto the quiz!

P.S.  If you’re a fan of Game of Thrones AND Ice Ice Baby, this mashup is a must.

Rules

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

Question 1

True or false.

Whenever a subordinate lawyer acts at the direction of a supervisor, the subordinate is relieved of responsibility for a violation of the rules.

Question 2

If revealed in a compliance or trust account audit, which is most likely to be dealt with differently than the other findings?

  • A.  records showing that the lawyer has regularly deposited the lawyer’s own funds into the account to cover service charges and fees, albeit only in amounts necessary to pay those charges and fees.
  • B.  records documenting that the lawyer has reconciled the account on a quarterly basis.
  • C.  They’ll be dealt with the same, both are violations.
  • D.  They’ll be dealt with the same, neither is a violation.

Question 3

Which type of conflict is not imputed to other lawyers in the same firm?

  • A.  a conflict that arises under Rule 1.7.
  • B.  a conflict that arises under Rule 1.9.
  • C.  a conflict that arises under 1.7 or 1.9, as long as the conflict is based on a personal interest of the lawyer and does not present a significant risk of materially limiting the representation of the client by the other lawyers in the firm.
  • D.  Trick question.  Vermont imputes all conflicts.

Question 4

Which is found in a different rule than the others?  A lawyer shall:

  • A.   as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
  • B.   keep the client reasonably informed about the status of a matter.
  • C.   promptly comply with reasonable requests for information.
  • D.   consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct.

Question 5

I’m going to Indiana this weekend.  I’m also a former high school basketball coach.

Jury tampering is unethical.  In every state.

Name the actor or actress who starred:

  • as a high school basketball coach in a movie set in Indiana; and,
  • as a consultant who specialized in tampering with juries in a movie that put the firearms industry on trial.

 

 

Monday Morning Answers #160

Welcome to Monday!

Friday’s questions are here.  The answers follow today’s Honor Roll.  More importantly, readers have spoken.  The most popular choice to rule Westeros when Game of Thrones ends?

Sansa Stark.

Honor Roll

Answers

Question 1

Limited representations can be a tool to increase access to legal services.  Per the Vermont Rules of Professional Conduct, a lawyer may:

  • A.   not limit the scope of the representation.
  • B.   limit the scope of the representation but may not bill for the limited services.
  • C.   limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.  V.R.Pr.C. 1.2(c)
  • D.  B & C

Question 2

Rule 4.2 prohibits communication with a represented person on the subject of the representation unless the other lawyer consents or the communication is authorized by law.  When it comes to a represented organization, the rule applies to a constituent of the organization:

  • A.  who supervises, directs, or regularly consults with the organization’s lawyer concerning the matter.
  • B.  who has the authority to obligate the organization with respect to the matter.
  • C.  whose act or omission with respect to the matter may be imputed to the organization for the purposes of civil or criminal liability.
  • D.  All of the above.  V.R.Pr.C. 4.2, Comment [7]

Question 3

True or false.

There is an absolute prohibition on advertisements that truthfully report a lawyer’s achievements on behalf of clients.

FALSE. Per V.R.Pr.C. 7.1communications about a lawyer’s services cannot be misleading.  According to Comment [2], truthful statements about prior results “may be misleading if presented so as to lead to a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without references to specific factual and legal circumstances of each client’s case.”

Question 4

Which do the rules treat differently than the others?

  • A.  a client’s personal check in the amount of $1,499
  • B.  a check drawn on another lawyer’s IOLTA account.
  • C.  a check drawn on an IORTA account of a Vermont licensed real estate broker
  • D.  a check issued by an insurance company licensed to do business in Vermont

As a rule, a lawyer may not disburse funds from trust unless the funds are “collected funds.”  V.R.Pr.C. 1.15(f)There are exceptions to the general rule.  And choices, B, C, and D are among the exceptions listed in Rule 1.15(g), the rule that allows lawyers to disburse in reliance upon certain types of deposits.  To disburse in reliance upon the deposit of a client’s personal check, the check cannot exceed $1,000.  Thus, “A” is treated differently than the others.

Question 5

Not ABBA, but a few years earlier . . .

Immigration and cannabis seem to be in the news a lot.

Many years ago, a couple had come to the US to search for the woman’s child.  The child had been abducted by the woman’s former husband.  The man who came with her was a musician and had previously been convicted in the United Kingdom of possession of cannabis resin.

For various reasons, President Nixon ordered the Justice Department to deport the couple. Thanks in large part to their lawyer, the couple prevailed in court and eventually secured green cards and permanent status.

At the time, the couple was, arguably, the most famous couple in the world.  Yet the lawyer they hired had never heard of them.  In addition, per the ABA Journal, the lawyer “didn’t know when accepting the case . . . that he and his clients were facing a five-year legal battle that would eventually expose corruption at the highest levels of the Nixon administration and change the U.S. immigration process forever.”

Who were the lawyer’s famous clients?

Yoko Ono & John Lennon

Image result for images of john lennon and yoko ono

Five for Friday #160

Welcome to Friday!

Today you will have at least 160 chances to say something nice about someone or to someone.

Take a chance.  At least one.

John Havlicek died yesterday.  I woke up to the news this morning.  I was too young to remember watching him play.  However, for many years in the early days of email and chat rooms, “Hondo” was in my address and handles.  Also, Celtic fans of my vintage were raised on Johnny Most, Boston’s legendary radio announcer.  While we took particular joy in how he taunted the Pistons, Most’s most famous call came before we born, when “Havlicek stole the ball.”

But this column isn’t about Havlicek, the Celtics, or basketball.  It’s about a thought expressed by one of Havlicek’s former teammates and how that thought relates to a thought I had upon learning last night that a Vermont lawyer had passed away.

ESPN ran this tribute to Havlicek.  It quotes his teammate, Dave Cowens:

“Everybody says nice things about you when you die. I wish they said them to John when he was alive. John was always overlooked. They never talked enough about him,” former teammate Dave Cowens said.

Isn’t that true well beyond sports stars?

Laurie LeClair died this week.  As many of you know, Laurie was a lawyer. She was only 57.

I first met her when she worked for the VBA.  She coordinated CLE & communications.  As Bob Paolini told me this morning, she was Kevin Ryan & Jennifer Emens-Butler before Kevin & Jennifer.

I knew Laurie, but not well.  Many have told me that she was one of the smartest, brightest lawyers they know.

Laurie fell on some hard times.  For many years, life was not easy for her.  Again, I did not know her well and we were not close other than in that 21st century way: we were  Facebook friends.  I’ve probably talked to her only about 10 times in the past 10 years.

Yet,  even though I did not know her well, last night, when I heard the news, I resolved to say nice things about her at today’s meeting of VBA Board of Bar Managers.  When I woke up and read Cowens’ quote about Havlicek, it hit home:

The things I resolved to say about Laurie later today are things I didn’t say to her once over the past 10 years. Even when I had the chance.

The things I resolved to say about Laurie later today are things I didn’t say about her once over the past 10 years. Even when I had the chance.

Don’t be like me.  Don’t wait.  Take a chance and say something nice to someone or about someone.  If you’re anything like me, yeah, it can be awkward.  I can hear you now: “what if I can’t find the words? or they don’t take it the right way?”  To that I suggest, reverse the roles.

Haven’t we all experienced that moment when, during a tough time, someone takes the chance to say something nice and botches it?  We don’t get mad! We laugh through tears and say, “you dummy!” Then we give the person a big hug, thankful for the thought and effort, caring not a whit about the delivery.

Take a chance.  You’ll have at least 160 today.

And if it helps you build up the courage to do so, picture me under the disco ball that hangs in my basement (fact) karaoking ABBA.  If I receive enough reports of people taking a chance today, maybe I’ll take the chance to karaoke the song in public.

Oh, and by the way, as I type this blog, I’m in the State House cafeteria.  My mom, who lobbies, is a few tables away having coffee with some colleagues.  For now, she’s in the dark. But, as regular reader of this blog, she’ll soon learn that I have a disco ball and that I often stand under it singing along to a song she introduced us as kids.

Then, if you ask, I’ll have to answer yes, my mother does know.

Take a chance.

Onto the quiz.

Rules

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

Question 1

Limited representations can be a tool to increase access to legal services.  Per the Vermont Rules of Professional Conduct, a lawyer may:

  • A.   not limit the scope of the representation.
  • B.   limit the scope of the representation but may not bill for the limited services.
  • C.   limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.
  • D.  B & C

Question 2

Rule 4.2 prohibits communication with a represented person on the subject of the representation unless the other lawyer consents or the communication is authorized by law.  When it comes to a represented organization, the rule applies to a constituent of the organization:

  • A.  who supervises, directs, or regularly consults with the organization’s lawyer concerning the matter.
  • B.  who has the authority to obligate the organization with respect to the matter.
  • C.  whose act or omission with respect to the matter may be imputed to the organization for the purposes of civil or criminal liability.
  • D.  All of the above.

Question 3

True or false.

There is an absolute prohibition on advertisements that truthfully report a lawyer’s achievements on behalf of clients.

Question 4

Which do the rules treat differently than the others?

  • A.  a client’s personal check in the amount of $1,499
  • B.  a check drawn on another lawyer’s IOLTA account.
  • C.  a check drawn on an IORTA account of a Vermont licensed real estate broker
  • D.  a check issued by an insurance company licensed to do business in Vermont

Question 5

Not ABBA, but a few years earlier . . .

Immigration and cannabis seem to be in the news a lot.

Many years ago, a couple had come to the US to search for the woman’s child.  The child had been abducted by the woman’s former husband.  The man who came with her was a musician and had previously been convicted in the United Kingdom of possession of cannabis resin.

For various reasons, President Nixon ordered the Justice Department to deport the couple. Thanks in large part to their lawyer, the couple prevailed in court and eventually secured green cards and permanent status.

At the time, the couple was, arguably, the most famous couple in the world.  Yet the lawyer they hired had never heard of them.  In addition, per the ABA Journal, the lawyer “didn’t know when accepting the case . . . that he and his clients were facing a five-year legal battle that would eventually expose corruption at the highest levels of the Nixon administration and change the U.S. immigration process forever.”

Who were the lawyer’s famous clients?

Image result for images of abba take a chance

 

Monday Morning Answers – #159

Happy Monday!  Friday’s questions are here.  The answers follow today’s Honor Roll.  Congrats to all on it, with a special s/o to first-timer Melinda Siel!

Honor Roll

Answers

Question 1

By rule, a lawyer shall not make an agreement for, charge, or collect an unreasonable fee.

True or False: if a client confirms a fee agreement in writing, it is presumed reasonable.

FALSE – Rule 1.5 speaks for itself.  Also see this blog post.  Finally, as the Vermont Supreme Court said here: attempting to justify a fee by arguing that the client agreed to it

  • “. . . demonstrates [the lawyer’s] failure to comprehend the effect of Vermont Rules of Professional Conduct 1.5(a);  lawyers, unlike some other service professionals, cannot charge unreasonable fees even if they are able to find clients who will pay whatever a lawyer’s contract demands.”

Question 2

By rule, which other rule or rules are relaxed:

“When a lawyer, under the auspices of a program sponsored by a non-profit or court, provides short-term legal services to a client without expectation by the lawyer or client that the lawyer will provide continuing representation  in the matter.”

  • A.  The rules on conflicts of interest.  Rule 6.5
  • B.  The rule that requires competent representation
  • C.  The rule that requires candor to the court
  • D.  The rules on safekeeping client property

Question 3

By rule, there are two exceptions to a general prohibition on contacting certain people.  The exceptions are:

  • 1.  if the person is a lawyer; or,
  • 2.  if the person has a family, close personal, or prior professional relationship with the lawyer.

These are the exceptions to the rule that prohibits a lawyer from contacting a:

  • A.  represented person
  • B.  juror
  • C.  former constituent of a represented organization
  • D.  prospective client, by in-person, live telephone or real-time electronic contact, when a significant motive for doing so is the lawyer’s pecuniary gain.  Rule 7.3(a)

Question 4

Lawyer has a conflict.  Therefore, Lawyer moves to withdraw.  Trial court denies the motion and orders Lawyer to continue the representation, notwithstanding that good cause exists to terminate the representation.  By rule, Lawyer must:

  • A.  Appeal
  • B.  Continue the representation.  Rule 1.16(c).
  • C.  Self-report to disciplinary counsel
  • D.  The rule is silent

Question 5

Speaking of how things were different way back when, there was a time when law schools were not required to teach professional responsibility/legal ethics.  Identify the event that resulted in the American Bar Association deciding that legal ethics/professional responsibility should be a required course in law school.

Watergate.

Image result for images of watergate