Monday Morning Answers

Monday Morning Answers #146

Michael Leave a comment

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

Special kudos to (1) Under Pressure for a team name cleverly linked to Question 5; and (2) Kevin Lumpkin for using “Fauxstralian” to describe Friday’s example of paltering.

Honor Roll

Answers

Question 1

Last week, the quiz’s first question asked readers to name 1 of the 5 C’s of ethics.  They are Competence, Communication, Confidences, Conflicts and Candor.  This week, I blogged about the importance of a professional duty that begins with a letter that abuts C.  It’s a duty that applies no matter how “big” or “small” a lawyer views a client’s matter.

It’s the duty in the rule entitled:

  • A.   Bookkeeping
  • B.   Barratry
  • C.   Diligence;  See this blog post.
  • D.  Dual Representation

Question 2

One of the conflicts rules states that “a concurrent conflict of interest exists if the representation of one client will be directly adverse to another.”

True or False:

The rule speaks to matters that are the same or substantially related to each other. For example, a lawyer who represents Kennedy in Kennedy v James, can also represent Brady in Kennedy v. Brady, as long as the two matters are wholly unrelated.

FALSE.  See, Rule 1.7, Comment [6]: “absent consent, a lawyer may not act as an advocate in one matter against a person a lawyer represents in some other matter, even when the matters are wholly unrelated.”

Question 3

Lawyer is holding funds in connection with the representation of Client.  Both Client and Third Party Service Provider have claimed an interest in the funds.  Client and Third Party Service Provider dispute the amount to which each is entitled.  In fact, Lawyer is aware that Third Party Service Provider’s claim is valid.  By rule, Lawyer must:

  • A.   Pay the funds into court and ask a court to resolve the dispute
  • B.   Hold the funds in a trust account until the dispute is resolved.  Rule 1.15(e)
  • C.   Disburse the funds as directed by Client
  • D.   Disburse in accordance with Lawyer’s good-faith determination of the amount due to each

Question 4

Somewhat unbelievably, this one just happened again last week. So, I’m going to keep asking.

Attorney called me with an inquiry.  Attorney said “Mike, I represent a witness.  The defendant’s attorney keeps contacting my client directly. I asked him to stop.  He said he doesn’t need my permission because my client is only a witness, not a party.  Is he right?”

What was my response?

  • A.   Yes, he’s right.
  • B.   The rule is unclear.
  • C.   The rule is unclear, but, by case law, no, he’s wrong.
  • D.  He’s wrong. The rule applies to any person who is represented in a matter.  See, Rule 4.2

Question 5

I don’t watch reality tv, but I like regular tv. In addition, I often blog about competence. I also like to blog about lawyers who are quite competent at non-lawyerly pursuits.

A few years ago, I got into a show called Mr. Robot.  One of the reasons I liked it was the fantastically competent work by lead actor Rami Malek.

Earlier this week, Malek won the Golden Globe for outstanding lead actor in a movie. In the movie, he played Freddy Mercury.  This is a hint, as is the fact that I purposefully did not name the movie.

The Windham County Bar Association held its annual dinner on Wednesday night.  Thanks to former secretary Ray Massucco, the WCBA has a wonderful tradition of presenting the minutes of the previous year’s meeting in a very entertaining way.

This year was James Valente’s first meeting as Secretary of the WCBA. He marked the occasion by channeling his inner Freddy Mercury and singing the minutes of the 2017 meeting to the tune of a famous Queen song.  By all accounts, he was fantastically competent.

Name the song.

Bohemian Rhapsody.  The official version is here.  True story: footage of Valente’s version exists.  I’ve watched it, and it’s even more fantastically competent than you can imagine.

Image result for bohemian rhapsody images

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Monday Morning Answers #145

Michael 1 Comment

Good Monday morning!

2019 is off to a great start! A record number of folks made the Honor Roll!

Friday’s questions are here.  Thank you for the many kind words about my mom.  The answers follow today’s Honor Roll.

p.s.: based on the responses I received, it’d be fascinating to host a debate where my readers make their various cases as to whether Pete Rose should or should not be in the Hall of Fame!

Honor Roll

  • Matthew Anderson, Pratt Vreeland Kennelly Martin & White
  • Evan Barquist, Montroll Backus & Oettinger
  • Alberto Bernabe, Professor, John Marshall Law School
  • Honorable John M. Conroy, United States Magistrate Judge, District of Vermont
  • Andrew Delaney, Martin & Delaney Law Group
  • Jake Durell, Esq.
  • Jennifer Duxbury, Pratt Vreeland Kennelly Martin & White
  • Jennifer Emens-Butler, Vermont Bar Association, Communiation & Education
  • Erin Gilmore, Ryan Smith & Carbine
  • Bob Grundstein, Esq.
  • Mark Heyman, General Counsel, Logic Supply
  • Glenn Jarrett, Jarrett & Luitjens
  • Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy, My mom
  • John Leddy, McNeil, Leddy, & Sheahan
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Kevin Lumpkin, Sheehey Furlong & Behm
  • Lon McClintock, McClintock Law Offices
  • Jeff Messina, Bergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Josh O’Hara, Appellate Public Defender
  • Nancy Rogers, South Burlington School District
  • Jim Runcie, Ouimette & Runcie
  • Chris Souliere, Burlington School District
  • Jay Spitzen, Esq.
  • Caryn Waxman, Barber & Waxman
  • Zachary York, Vermont Superior Court, Chittenden Civil & Criminal

Answers

Question 1

Earlier this week, I blogged that lawyers likely won’t go wrong if they remember the “5 Cs” of ethics.  Name at least one of the 5 Cs.

Competence, Confidentiality, Communication, Candor, Conflicts

For more, see C in Ethics? You’re on the right track

Question 2

Fill in the blank.

Generally, incivility isn’t a violation of the Rules of Professional Conduct. However, there’s a rule that makes it professional misconduct to “engage in undignified or discourteous conduct which is degrading or disrupting to ____________”

Question 3

The term “IOLTA” does not appear in the rules.  What’s the term that the rules use when referring to what we all more commonly refer to as an “IOLTA?”

Question 4

True or false.

The rule on trial publicity only applies to criminal cases.

FALSE.  Rule 3.6

Question 5

Speaking of baseball, autographs and my mom . . .

. . . in the 1970’s, she was a huge fan of the Cincinnati Reds, the so-called “Big Red Machine.”  Such a fan that not only would we go see them play in Montreal, but my mom would figure out what hotel they were in and try to get autographs from them.

True story: once in Montreal, I think it was at the Bonaventure, she spotted Joe Morgan and another player in a booth eating dinner.  She sat down with them and asked for their autographs.  The other player replied: “I don’t give autographs to people who are sitting on my sport coat.”

Joe Morgan is in the Hall of Fame.  The player in the booth with him is not.  In fact, besides suffering the indignity of having my mom sit on his sport coat, the player who was with Morgan has been banned from baseball. Disbarred, if you will.

Name him.

Pete Rose.

See the source image

Monday Morning Answers #144

Michael Leave a comment

Monday, Monday.   Can’t trust that day.

Friday’s questions are here.  The answers follow today’s Honor Roll.  A safe & peaceful New Year to all.

Honor Roll

  • Beth DeBernardi, Administrative Law Judge, VT Dept. of Labor
  • Jake Durrell, Esq.
  • Erin Gilmore, Ryan Smith Carbine
  • Bob Grundstein, Esq.
  • Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy, JB Kennedy Associates, My mom
  • Lawyers in Cars Eating Chick Fil-A
  • Lon McClintock, McClintock Law Offices
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Jeff Messina, Bergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Herb Ogden, Esq.
  • Eric Parker, Bauer Gravel & Farnham
  • Bob Pratt, Pratt Vreeland Kennelly Martin & White
  • Jonathan Teller-Elsberg, Vermont Law School, Class of 2020, Staff Editor, Law Review

Answers

Question 1

I often blog about tech competence.

19 years ago today, there was great fear that we were only days away from a massive tech problem.  The Deputy Secretary of Defense warned that the problem was the “electronic equivalent of the El Niño and there will be nasty surprises around the globe.”

What is the name associated with the problem that, in fact, didn’t turn into much of a problem at all?

Y2K Bug

Question 2

Somewhat related . . .

. . . Rule 1.6 prohibits lawyers from disclosing information related to the representation of a client.  Rule 1.16(d) requires lawyers to deliver the file upon the termination of a representation.  I’ve also blogged on what to do when subpoenaed to produce a client file.

In 2016, a Minnesota court considered a dispute between a deceased person’s estate lawyers and divorce lawyers.

Client’s estate lawyers wanted the divorce file, asserting that it might contain “potentially relevant” information as to Client’s potential heirs.  Client’s divorce lawyers (who work at a different firm than the estate lawyers) refused, arguing that it had a professional obligation not to disclose “information protected by the attorney-client privilege and work product doctrine which was generated and acquired during the decedent’s lifetime.”

The Court agreed with the estate lawyers and ordered the divorce lawyers to produce the file.

The Client was a famous musician. Name the musician’s song that somewhat relates to the previous question and today’s New Year theme.

1999, 

See the source image

Question 3

Imagine that someone files a disciplinary complaint against a lawyer.  I screen the complaint.  The complainant alleges that she met the lawyer at a New Year’s Eve party and was offended when she overheard him refer to her as “a verbally incontinent spinster who smokes like a chimney, drinks like a fish and dresses like her mother.”  Yet, the complainant concedes that the insult caused her to resolve to make changes in her life.

Specifically, the complainant credits the lawyer’s rudeness with causing her to write as follows:

New Year’s Resolutions

These are the things I decided I would do this year.
1. Stop smoking.
2. Develop a mature
relationship with an adult man.
3. Go to the gym.
4. Be kinder and help others more.

I ended up dismissing the complaint.  Why? Because by the end of the year, the complainant withdrew it, having learned that the lawyer wasn’t as bad as she initially thought.  He hadn’t broken up her friend Daniel’s marriage, it was the other way around.  The lawyer even bought her a new journal.  Plus, the PRB doesn’t have jurisdiction over barristers.

Who filed the complaint?

Bridget Jones 

See the source image

Question 4

Regular readers know that I’m a fan of Taylor Swift and The Rolling Stones.  I’ve seen each in concert.  However, the first concert that I ever attended was U2. I saw the band in Montreal during The Joshua Tree tour.

While I’m pro Taylor Swift, and pro Rolling Stones, perhaps I’d be well-served to refer to U2 when addressing a particular section of the Rules of Professional Conduct.  New Year’s Day this time of year, or, better yet, a member of the band.

The section is critically important, but often forgotten when thinking of “legal ethics.”  Which section?

Midway thru the day on Friday, I rephrased the question to try to make it easier. I failed. Guess it’s a poor question. 

Anyway, I’m also pro Bono.

And pro pro bono.  Don’t forget!  The public service rules (6.1 – 6.5) are very important!  Here are som FAQs.

Question 5

You represent a client who has been charged with ordering a relative’s death.  You’re well aware that Rule 1.2(a) requires you to abide by your client’s wishes whether to plea, whether to waive a jury trial, and whether to testify.

Your client has opted not to plea. Now, he wants to testify in his own defense.  Specifically, he wants to testify as to what he meant when, during a New Year’s Eve party in Havana, he said to the now deceased relative:

“I know it was you Fredo. You broke my heart.  You broke my heart.”

What is your client’s name?

Bonus: Name the movie.

Michael Corleone, in The Godfather: Part II   The scene is here.

See the source image

 

Monday Morning Answers #143

Michael Leave a comment

Welcome to Monday!

Friday’s holiday-themed questions are here.  The answers follow today’s honor roll.

Honor Roll

Answers

Question 1

You represent George.  He is concerned that his elderly father has been acting irrational and has come to you for advice on a potential involuntary guardianship.  George informs you that he’s been worried for months, but that the last straw was when his father challenged him to a fight during the “feats of strength” aspect of the family’s recent holiday celebration.

For now, the information relating to your representation of George is protected by Rule 1.6.  Including the holiday.  But in order to protect it, you have to know what it is.  What holiday were George and his father celebrating?

FESTIVUS

See the source image

Question 2

Lawyer represents Client.  Client is charged with kidnapping Clarice and assaulting a gallant suitor who attempted to free her.  Client is also charged with the felony murder of one Yukon Cornelius.  Yukon is presumed dead.  He disappeared off a cliff during the daring rescue mission of Clarice and her suitor that Yukon carried out with an heretofore incompetent dentist.

But lo’ and behold, the prosecutor learns that Yukon is alive and well!  As required by Rule 3.8(d), prosecutor notifies Lawyer and, then, as required by Rule 3.1, dismisses the felony murder charge.

Lawyer works diligently to convince prosecutor to drop the remaining charges.  After all, despite a monstrous reputation, Client is winning in the court of public opinion.  If only because Client’s physical stature comes in handy during the holidays.

Who is Lawyer’s client?

Bumble The Abominable Snow Monster

See the source image

Question 3

Attorney is a public defender.  She’s been assigned to represent Willie T. Stokes.  Willie is a con man. He and a co-defendant, Marcus “Elf” Skidmore, have been charged with staging elaborate robberies of department stores the past several Christmas Eves.

Marcus asks Attorney to represent him too.  Attorney is mindful of Comments 29-33 to Rule 1.7: the comments that discuss the ethics of “common representation.”

Yet, just as she starts to re-read the comments, Attorney wakes up. It was all a dream!  She doesn’t really represent Willie T. Stokes, he’s a fictional character!

What movie must Attorney have watched before she fell asleep?

BAD SANTA

See the source image

Question 4

One of my favorite unethical fictional lawyers is Barry Zuckerkorn.  He’s the Bluth family’s incompetent lawyer in Arrested Development. Zuckerkorn is played by Henry Winkler who, of course, also played Arthur Fonzarelli in Happy Days.

Speaking of Fonzie, there’s a well-known holiday song that includes the follow lyrics:

“Guess who eats together at the Carnegie Deli

Bowzer fro Sha Na Na and Arthur Fonzarelli”

Name the song.

The Chanukah Song, Adam Sandler

See the source image

Question 5

Michael consults Attorney for advice. Michael wants to know whether he has any recourse against employees who, in Michael’s opinion, did not buy sufficiently nice gifts for the office’s “Secret Santa” party, a party that Michael turned into a “Yankee Swap” after receiving an oven mitt from his secret santa.  Michael complains that the gift he received was cheap compared to the one he bought.  The one he bought cost $400 and was intended to Ryan.

Mindful of my advice that a good way to avoid disciplinary complaints is to manage client expectations, Attorney candidly tells Michael that he has no claim. The rules of the Yankee Swap were clear: spend no more $20.  Michael assumed the risk by spending more.

 

Part 1:  What did Michael buy?

Part 2:  Who ended up with the $400 item that Michael intended for Ryan?

In Christmas Party (The Office), Michael Scott bought a video iPod that he intended for Ryan Howard. Pam Beesley ended up with it, but then traded it to Dwight Schrute for the teapot that Jim Halpert meant for Pam.

See the source image

 

Monday Morning Answers #142

Michael Leave a comment

Welcome to Monday!

Friday’s questions are here.  The answers follow today’s honor roll.

The verdict is in & it was unanimous: at least among my readers, Die Hard is a Christmas movie.  Those responses are at the end of this post.

Honor Roll

  • Matthew Anderson, Pratt Vreeland Kennelly & White
  • Karen Allen, Karen Allen Law
  • Penny Benelli, Dakin & Benelli
  • Beth DeBernardi, Administrative Law Judge, VT Dept. of Labor
  • Andrew Delaney, Martin & Delaney
  • Jennifer Emens-Butler, Director of  Education & Communication, Vermont Bar Assoc.
  • Erin Gilmore, Ryan Smith Carbine
  • Bob Grundstein, Esq.
  • Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
  • Patrick Kennedy, MyWebGrocer, First Brother
  • Shannon Lamb, Pratt Vreeland Kennelly Martin & White
  • Jeff Messina, Bergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Lon McClintock, McClintock Law Offices
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Herb Ogden, Esq.
  • Jim Runcie, Ouimette & Runcie
  • Jonathan Teller-Elsberg, Vermont Law School, Class of 2020, Staff Editor, Law Review
  • Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

With respect to the Rules of Professional Conduct, the word “collected” is used in connection with:

Question 2

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

  • “by its express language, the rule applies to any lawyer who is participating in or has participated in the investigation or litigation of a matter.”

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

  • A.  Client confidences
  • B.  Trust accounting
  • C.  Diligence
  • D.  Trial Publicity.  Rule 3.6

Question 3

You’re at a CLE.  You’re vaguely aware that I’m talking about a rule that authorizes a lawyer “to take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client . . .”

That portion of my CLE deals with:

  • A.  Ethics in Bankruptcy Law
  • B.  A client who lied while testifying
  • C.  A client who suffers from a diminished capacity.  Rule 1.14(b)
  • D.  A client who died.

Question 4

A comment to one of the rules states that “a lawyer may accept a gift from a client, if the transaction meets general standards of fairness.  For example, a simple gift such as a present given at a holiday or as a token of appreciation is permitted.”

  • A.   False.  It’s unethical to accept any form of gift from a client.
  • B.   True.  It’s a comment to the rule on fees.
  • C.   True.  It’s a comment to one of the conflicts rules. Rule 1.8, Comment [6]
  • D.   There are lawyers who have clients who give them gifts?

Question 5

Bruce Willis starred in Die Hard.

Earlier today I blogged about a real-life prosecutor who was disbarred after becoming a bit too involved in media coverage of cases that his office was handling.

Many years ago, Bruce Willis played journalist Peter Fallow in a movie that focused on the criminal prosecution of Sherman McCoy, a Wall Street-type played by Tom Hanks.  McCoy stood accused of a hit & run with death resulting.

Morgan Freeman starred as presiding Judge Leonard White.  The judge was convinced that the prosecutor was using the case to bring media attention to the prosecutor’s re-election bid.

The trial ended in favor of the defense, after Willis’s character supplied the defense with a secret tape recording. On the recording, the defendant’s mistress, Maria Ruskin as played by Melanie Griffith, admitted to having been the driver on the night in question.

The movie was adopted from a famous novel of the same name.

What’s the movie/novel?

See the source image

Reader Responses to Is Die Hard a Christmas Movie?

  • Of course Die Hard is a Christmas movie.  It has RUN DMC’s song “Christmas in Hollis” in it, which is one of my favorite Christmas songs ever!  Normally I prefer west coast rap, but that song is a classic!! C’mon, get with the program.  😊
  • [my spouse] and I watch Die Hard every Christmas.  Definitely Christmas movie.

    And our old office assistant said Joyeux Noel was her favorite movie. I’d never heard of it at the time. She loaned it to me…did I ever give it back? No.  Whoops!! And I never watched it.

  • Die Hard is definitely a Christmas movie! The only reason he is there is because of Christmas! Side note: one of the students in a class I’m teaching thanked me for explaining an important plot line: that the notes they were stealing were Bearer paper thus not traceable to the thieves. The Bitcoin of that era.
  • Of course it’s a Christmas movie! I can’t believe this is even a debate!

  • I have always maintained that Die Hard is a Christmas movie.  I’ve had many raging debates on it.  Bruce Willis, and Steven  de Souza (screenwriter) disagree on it.

    Willis says no.  deSouza says yes, and presents evidence.  Lastly, de Souza wrote it.  Jim Carrey can say that The Grinch is not a christmas story, however, as long as Dr Seuss maintains that it is,  it in fact is.  (not that this was ever an argument just pointing out that an actor’s thoughts can in no way belie a creator or author’s intent).  Here’s my proof:

     

 

 

Monday Morning Answers #141

Michael 1 Comment

Who knew Larry Bird would resonate so with my readers?!?!

Friday’s column is here.  The answers follow today’s honor roll.  But, first, I’m compelled to share some of the reactions to my post.

Within minutes of posting Friday’s blog, I received a text from a lawyer.  She said “OMG! I love Larry Bird! How did I not know this about you??? I’ve read Drive like a 1000 times.”  She also told me that she puts a special Larry Bird ornament on her Christmas tree every year.

So do I.

She wasn’t the only reader to reply to my post on Larry and the site lines in the old Garden.

Apparently obstructed view seats aren’t that bad.  Especially compared to the reader who bought a ticket to a Grateful Dead concert at the Garden, only to arrive and find that the seat had been removed to make room for the stage.

One reader’s use of obstructed view seats to see the Bird-era Celtics was so much more skilled than mine that she, indeed, is Vermont’s leader on the topic.

Another reader’s wife has converted to her to both basketball and the Celtics. She assures me that the new Garden seats aren’t obstructed and that the pizza is fantastic.

One reader brought me a smile with his memory of using coupons to buy tickets to afternoon games. I remember both the coupons and those glorious things of yesteryear known as “day games.”

Another remembered watching the 1979 NCAA title game (Bird v. Magic) while a law student at Michigan State. Oh the days when tvs were 12 inches  . . . and we thought that was just fine!

Still another mentioned rooting for the Celtics, in no small part due to growing up a fan of the University of Minnesota, the school that produced Kevin McHale.  McHale was Bird’s running mate for years. The reader noted that he will never forget the McHale- Rambis play.

I’m not sure how to relay the story of the reader who spotted Bird in the waiting area at Logan Aiport.  Larry was reading a newspaper.  The headline visible for anyone looking at him was about “The Big Dig.”  As this reader watched, Larry read about the Big Dig, she snapped a photo of him . . . just as he started picking his nose.

And, finally, the reader whose college friend was a bouncer who got into a fight that involved Bird . . . and that some have suggested may have cost the Celtics the NBA title in 1985. I can’t believe I didn’t remember that story!

Oh! And a first in #fiveforfriday history: a lawyer entered by answering “in person” while representing me at a closing.

My readers! I love your stories!  It’s the best part of writing this blog.

Honor Roll

Answers

Question 1

(this one happened again this week, so I’m going to keep asking)

Attorney called me with an inquiry.  Attorney said “Mike, I represent a witness.  The defendant’s attorney keeps contacting my client directly. I asked him to stop.  He said he doesn’t need my permission because my client is only a witness, not a party.  Is he right?”

What was my response?

  • A.   Yes, he’s right.
  • B.   The rule is unclear.
  • C.   The rule is unclear, but, by case law, no, he’s wrong.
  • D.  He’s wrong. The rule applies to any person represented in a matter.

Rule 4.2, the so-called “no contact” rule, applies to represented “persons.”  Per the Reporter’s Note to its 1999 adoption, the rule reflects that the fact that the ABA redrafted the rule 1995 to clarify that it “applied to all represented persons, not merely to parties in existing litigation.”

Question 2

Attorney called with an inquiry. I listened, then replied “the rule applies to statements of fact.  The Comment suggests it doesn’t apply in negotiations or to mere ‘puffery’ to opposing counsel.”

What rule?

  • A.    Trial Publicity
  • B.    Client Confidences
  • C.    Advertising
  • D.   Truthfulness in Statements to Others.   

There was a big hint in the intro.  It’s Rule 4.1

Question 3

True or false.

If a lawyer sells her practice, the rules require her to cease the private practice of law in the geographic area in which she practiced.

True.

I spoke at the Bankruptcy Holiday CLE on Friday. I highlighted this rule.  It’s in Rule 1.17(a).  A lawyer who sells her practice or an area of her practice must cease the private practice of law, or cease the private practice of law in the practice area that was sold. The rule doesn’t define “geographic area,” but Comment 4 could be read to suggest that it’s the entire state.  North Carolina has amended its version of Rule 1.17 to specify that a lawyer who sells her practice must cease the private practice of law in the geographic area that is within a 100 mile radius of where the practice was located. 

Per Comment 3, the rule doesn’t prohibit a lawyer who sells her practice from working as a staff attorney in a public agency, or for a legal services entity that provides legal services to the poor, or as in-house counsel.

Question 4

Lawyer called me with an inquiry. I listened, then said “yes, for the sole purpose of paying service charges or fees on the account, and only in an amount necessary for that purpose.”

What did Lawyer call to ask?

Lawyer called to ask whether Lawyer may deposit Lawyer’s own funds into trust . See, Rule 1.15(b).

Question 5

Speaking of Larry Bird and ethics, as I mentioned, Bird went to Indiana State. However, he started his career at a different university.  Recruited to play basketball there, he dropped out of school after a few weeks, overwhelmed by the size.

Had Bird stayed, he’d have played for a very famous coach.  The coach often found himself under scrutiny by the NCAA’s equivalent of “disciplinary counsel.” The coach once skipped an NCAA-mandated ethics seminar, stating:

“I would have rather listened to Saddam Hussein speak on civil rights than to have listened to some of the [NCAA officials} who have spoken on ethics to this point.”

Who is the coach?

Bobby Knight.

Image result for images of bobby knight

Bird dropped out of Indiana University.  He spent the next 9 months working as a garbage collector in his hometown of French Lick, before enrolling at Indiana State.  The rest, as they say, is history.

Had he stayed at IU, he’d have played for Knight.

 

Monday Morning Answers

Michael Leave a comment

Welcome to Monday!  Friday’s questions are here.  The answers follow today’s honor roll.

Honor Roll

Answers

Question 1

At a CLE, you wake from a brief nap to hear me using the terms “concurrent,” “former,” and “prospective.”  I’m talking about the:

  • A.  rules on conflicts of interest (concurrent, former client, prospective client)
  • B.  trust accounting rules
  • C.  advertising rules
  • D.  rule on client confidences insofar as it relates to encrypting e-mail

Question 2

By rule, the interest on your pooled interest-bearing trust account goes to:

  • A.  Clients
  • B.  The Vermont Bar Foundation
  • C.  A or B
  • D.  B, but only with client consent

It’s Rule 1.15(B)(a)(1).

Question 3

“Impliedly authorized to carry out the representation” is an exception to the rule that prohibits:

  • A.   Conflicts of interest
  • B.   Commingling of funds
  • C.    Contacting a represented person without the permission of the person’s lawyer
  • D.   Disclosing information relating to the representation of the client.

It’s Rule 1.6(a).

Question 4

True or false.

An associate does not violate the rules if the associate acts in accordance with a partner’s reasonable resolution of an arguable question of a professional duty, even if the partner’s resolution turns out to be wrong.

True or false.  Rule 5.2

Question 5

Sydney Carton was a brilliant lawyer who struggled with alcohol & depression.  His most famous client was Darnay.

While not explicitly clear from the historical record, I’m pretty sure that Darnay filed a disciplinary complaint against Carton.   In it, he alleged that Carton failed to provide him with competent & diligent representation in a criminal trial that resulted in a death sentence for Darnay.

The complaint became moot when Carton, who bore an uncanny resemblance to his client, switched places with Darnay just before the execution.  Carton’s final words before the guillotine fell:

  • “It is a far, far better thing that I do, than I have ever done; it is a far, far better rest that I go to than I have ever known.”

Name the book.

Bonus: name the lawyer who “mentored” Carton.

A Tale of Two Cities, by Charles Dickens.   

Bonus: name the lawyer who “mentored” Carton.  Stryver.

On a serious note, if you know a lawyer who, like Carton, is dealing with substance abuse or mental health issues, please read this.

Tale of Two Cities

Monday Morning Answers

Michael Leave a comment

Monday, Monday.  Can’t trust that day.

I hope everyone enjoyed the long weekend.  Friday’s questions are here  The answers follow today’s Honor Roll.

Honor Roll

Answers

Question 1

Topic: Leftovers.

Generally, the rules require an attorney to know how much money is in trust and to whom it belongs.  There are times, however, when there’s money leftover in trust and it’s not clear whose it is.

In Vermont, there’s an advisory ethics opinion that suggests that when the true owner of funds held in trust cannot be identified, a lawyer should:

  • A.    self-report to disciplinary counsel
  • B.    comply with the Unclaimed Property Act
  • C.    keep the funds in trust until the lawyer determines who owns them
  • D.    A, B, or C

Question 2

I often blog about a lawyer’s duty of competence.   Alan Page was more than just “competent” in two different professions, one of which was the law.

In the first, after graduating from Notre Dame, Page gained renown for his work as a “Purple People Eater.”  Several years before leaving that profession, Page earned a J.D. from the University of Minnesota Law School.  Then, upon leaving the first profession, Page entered the law, eventually serving as an associate justice on the Minnesota Supreme Court from 1993-2015.

Before excelling in the law, what was the other profession in which Page excelled?

Alan Page 2009.jpg

 

Prior to joining the Minnesota Supreme Court, Justice Page had an outstanding career as a defensive lineman for the Minnesota Vikings. He’s in the pro football Hall of Fame.  The Vikings defensive line was known as the “purple people eaters.”

See the source image

 

Question 3

Topic: Attorney advertising.  Attorney advertising as “specialist”.  Disclosing Client Identities.

Imagine that Lawyer has a website.  The website states that Lawyer specializes in a particular area of law.  The site includes a list of clients for whom Lawyer achieved “the ultimate success.”  The list includes the following:

  • 2018: Peas & Carrots
  • 2017:  Drumstick & Wishbone
  • 2016: Tater & Tot
  • 2015:  Abe & Honest
  • 2014:  Cheese & Mac
  • 2013: Popcorn & Caramel
  • 2012: Cobbler & Gobbler
  • 2011: Liberty & Peace

In fact, the list goes all the way back to:

  • 1987:  Charlie

While Lawyer and website are imaginary, the “clients” I’ve listed are real.  And the dates correspond to the years in which those clients achieved what might arguably & truthfully be called the “ultimate Thanksgiving success.”  What does Imaginary Lawyer specialize in?

Our imaginary lawyer specializes in presidential pardons for turkeys.  The names are of those turkeys who’ve been pardoned over the years.

Question 4

Topic: a song from real-life inspires an imaginary lawyer-client relationship

One Thanksgiving, Arlo and his friend Rick agreed to take some trash to the dump as a favor to some friends who had converted a church into a restaurant.  The landfill was closed for the holiday, so they tossed the trash off a cliff.  The next day, they were arrested for littering.  Attorney was assigned to represent them.

Presumably, competent representation will require Attorney to interview the restaurant owner.

What’s her first name?

Alice, from Arlo Guthrie’s Alice’s Restaurant.

Question 5

Topic: Famous Events

Edmund Gwenn won the Academy Award for Best Supporting Actor for his portrayal of  Kris Kringle in Miracle on 34th Street.  In the movie, Kringle was involved in a legal proceeding that implicated many of the Rules of Professional Conduct, as well as several of the canons of judicial ethics.

The movie began with Kringle becoming upset that Santa is intoxicated at a particular event.

What’s the event?

The Macy’s Thanksgiving Day Parade.

See the source image

Monday Morning Answers #138

Michael Leave a comment

Welcome to a short week!

Friday’s questions are here.  The answers follow today’s honor roll.

Honor Roll

  • Penny Benelli, Dakin & Benelli
  • Andrew Delaney, Martin & Delaney Law Group
  • Erin Gilmore, Ryan Smith & Carbine
  • Bob Grundstein
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
  • Shannon Lamb, Pratt Vreeland Kennelly Martin & White
  • Kevin Lumpkin, Sheehey Furlong & Behm
  • Lon McClintock, McClintock Law Offices
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

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

  • “the rule refers to court costs and expenses of litigation, and says that repayment may be contingent upon the outcome.”

What did Lawyer call to discuss?

Providing financial assistance to a client  See, Rule 1.8(e).

Question 2

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

  • A.  prosecutes criminal cases
  • B.  knows or should know that the attorney made a mistake
  • C.  is being paid by someone other than the client
  • D.  represents an organization.  See, Rule 1.13(b).  

Question 3

Former Client thinks Attorney committed malpractice.  They meet.  Former Client is not represented, but is willing to accept Attorney’s settlement offer.

By rule, what must Attorney do before settling ?

Advise Former Client in writing of the desirability of seeking independent legal advice related to the settlement, and give Former Client a reasonable opportunity to do so.  See, Rule 1.8(h)(2).

Question 4

What’s the topic of the rule associated with these words & phrases:

  • extrajudicial
  • a lawyer involved in the investigation or litigation of a matter
  • disseminated by means of public communication
  • will have a substantial likelihood of materially prejudicing the proceeding

Trial publicity.  Rule 3.6.

Question 5

In honor of Stan Lee, who passed away this week . . .

Jennifer Walters graduated from the UCLA School of Law and eventually practiced law at the firm of Goodman, Lieber, Kurtzman, and Book.  There, she represented Arthur Moore, a client who had been charged with robbery.   The charge was dismissed after Walters successfully argued that all of the evidence against Moore had been seized during a traffic stop & search that violated the 4th Amendment.

Shortly thereafter, Moore disclosed information to Walters that caused her to go green with anger.  She was so angry that she punched him in the face, knocked him through the wall into the street, and disclosed his confidences to the crowd that gathered after he went crashing through the wall.  As a result, she was disbarred.

No matter, for Jennifer Walters, law was just a side job. Her true calling is as a super hero.

Who is Jennifer Walters when she transforms into her super hero alter ego?

Jennifer Walters is Marvel Super Hero She-Hulk.

See the source image

 

 

Monday Morning Answers: #137

Michael Leave a comment

Welcome to Monday.  Friday’s questions are here.  (Yes, Clemson won!) The answers follow today’s honor roll.

clemson

Honor Roll

  • Karen Allen
  • Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labor
  • Cary Dube, Bergeron, Paradis, Fitzpatrick
  • Bob Grundstein
  • Tammy Heffernan
  • Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy, Mom of the Blogger
  • Jordana Levine, Marsicovetere & Levine
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Kevin Lumpkin, Sheehey Furlong & Behm
  • Lon McClintock
  • Jeff Messina, Bergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Jim Runcie, Ouimette & Runcie
  • Jay Spitzen, Esq.

Answers

 

Question 1

Lawyer called me with an inquiry. I listened, then said: “the rule says that your first duty is to try to maintain as normal an attorney-client relationship as possible.”

Given my statement, it’s most likely that Lawyer called out of concern that:

  • A.  Lawyer’s client suffered from a diminished capacity.  See, Rule 1.14(a).
  • B.  Lawyer’s client had presented false evidence to a tribunal
  • C.  Lawyer’s client had used Lawyer’s services to perpetuate a fraud
  • D.  Lawyer’s client had given false testimony in a deposition.

Question 2

Which is associated with a different rule or set of rules than the others?

  • A.  Commingling
  • B.   Qualitative Comparisons.
  • C.   Disbursements
  • D.  Held in connection with a representation

Generally, the advertising rules prohibit “qualitative comparisons” to other lawyers or firms.  Choices A, C & D are phrases associated with the trust accounting rules.

Question 3

As in all cases, the rules prohibit unreasonable fees in divorces & criminal cases.

With respect to fees, the rules also prohibit something else in divorces and criminal cases.

What is it?

Contingent fees.  Rule 1.5(d).

Question 4

Prospective Client meets with you.  Prospective Client indicates that Lawyer represents her, but that she wants a second opinion from you.

True or False:  the rules prohibit you from discussing the matter with Prospective Client absent Lawyer’s consent.

False.  Rule 4.2, Comment[4].  Per the Reporter’s Note to the 2009 Amendments, “a new sentence clarifies that Rule 4.2 does not preclude communication with a represented person who is seeking a second opinion from a lawyer who is not representing a party in the matter.”

Question 5

Speaking of the Heisman Trophy . . .

. . .in 1962, President Kennedy nominated Byron White to the United States Supreme Court.  Justice White served until 1993, with Justice Ruth Bader Ginsburg replacing White upon his retirement.

25 years before being appointed to the Supreme Court, Justice White finished 2nd in the Heisman Trophy voting. He was an outstanding running back for the University of Colorado.  He’s the only US Supreme Court justice who also received votes in the Heisman race.

Justice White’s football skills resulted in a famous nickname.

What’s the nickname?

Byron “Whizzer” White was an All-American halfback and Heisman Trophy runner-up for the Colorado Buffalos.