Monday Morning Answers #214

Welcome to Monday.  Anyone around my age, I hope you caught Bel Biv Devoe during the AMAs last night.

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

Honor Roll

 Answers

Question 1

Which rule or rules are relaxed when a lawyer, under the auspices of a program sponsored by a nonprofit or court, provides short-term legal services without expectation of continued representation by either the lawyer or client?

  • A. The rule that requires competent representation.
  • B. The trust accounting rules.
  • C. The rules on conflicts of interest.  V.R.Pr.C. 6.5.
  • D. The confidentiality rule.

Question 2

Which is most accurate?

A lawyer who makes a frivolous discovery request or who fails to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party:

  • A.  violates the Rules of Professional Conduct.  V.R.Pr.C. 3.4(d).
  • violates the rules of procedure but not the Rules of Professional Conduct.
  • does not violate the Rules of Professional Conduct unless it happens more than once in the same matter.
  • does not violate the Rules of Professional Conduct unless it happens in more than one matter.

Question 3

Which is most accurate?

A lawyer or law firm’s website:

  • A.  is not subject to the Rules of Professional Conduct.
  • B.  likely is a communication concerning the lawyer’s services and, therefore, must not include any false or misleading statements about the services offered by the lawyer or firm.  See, V.R.Pr.C. 7.1.
  • C.  must not include a link or button for a prospective client to email the office or firm, unless the email goes to a non-lawyer’s email account to review for conflicts.
  • D.  must not be accessible in a jurisdiction in which no lawyer in the office or firm is licensed to practice law.

Question 4

Lawyer called me with an inquiry. I listened, then replied “It doesn’t matter. Since the two cases are substantially related, the Supreme Court has made clear that we aren’t going to make the former client disclose confidences to protect them.”

What “doesn’t matter.”  In other words, given my response, it’s most likely that the last thing Lawyer said before my reply was:

  • A.  Mike, I already delivered the file once.
  • B.  Mike, I don’t remember anything about the first case.
  • C.  Mike, the client never paid me.
  • D.  Mike, are you drunk?

This is key.  If a client’s interests are materially adverse to those of a former client in the same or a substantially related matter, the lawyer has a conflict even if the lawyer doesn’t remember anything about the former matter.

Question 5 (and bonus)

On November 19, the President made some remarks.  The Harrisburg Patriot & Union (a Pennsylvania newspaper) published a review that included the following paragraph:

  • “We pass over the silly remarks of the President. For the credit of the nation we are willing that the veil of oblivion shall be dropped over them and that they shall be no more repeated or thought of.”

I said the President made the remarks on November 19.  I did not say the President made them yesterday. Indeed, the President who made the remarks was a lawyer.

  • Name the lawyer.
  • Bonus: Name the title by which the “silly remarks” are better known.

 

Abraham Lincoln - Wikipedia

ABRAHAM LINCOLN and The Gettysburg Address

In 2013, the paper published a retraction.

Monday Morning Answers: #208

Welcme to Monday.

Friday’s questions are here.  Today’s answers follow the Honor Roll.  A special congratulations to the member of the Honor Roll who got a sign to read 9 MPH this week.  That’s moving!

Honor Roll

  • Karen Allen, Esq.
  • Matthew AndersonPratt Vreeland Kennelly & White
  • Evan BarquistMontroll Backus & Oettinger
  • Leslie Black, Govoni & Black
  • Beth DeBernardi, Administrative Law Judge, Vermont Department of Labor
  • Benjamin GouldPaul Frank & Collins
  • Mark Heyman, Esq.
  • Robert Grundstein, Esq.
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy, JB Kennedy Associates
  • Cassandra LaRae-PerezSpecial Counsel, Gravel and Shea
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Jesse Moorman, Assistant Attorney General, General Counsel & Administrative Law Unit
  • Hal Miller, First American
  • Jay Spitzen, Esq.
  • Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

Which is most accurate?  Upon the termination of a representation, a lawyer:

  • A.  must keep the original client file for 6 years.
  • B.  must keep a copy of the client file for 6 years.
  • C.  shall take steps reasonably practicable to protect the client’s interests, including surrendering any papers or property to which the client is entitled.
  • D.  All the above.

For more on file delivery and the myth of the 6-year file retention period, see last week’s Twofer: Scams & File Delivery.

Question 2

Fill in the blank.

A change to wiring instructions should put a lawyer on alert to a potential _________:

  • A.  conflict of interest.
  • B   situation in which the client is not competent to make informed decisions about the representation.
  • C.  violation of the rule that prohibits unreasonable fees.
  • D.  trust account scam.

Again, see last week’s post Twofer: Scams & File Delivery.

Question 3

I’ve often stated that there’s one rule that trumps all the others.  Here’s language from a comment to that rule.  Your mission, should you choose to accept it, is to identify the “C” of legal ethics that properly fills in the blank.

  • “This rule sets forth the special duties of lawyers as officers of the court to avoid conduct that undermines the integrity of the adjudicative process.  A lawyer acting as an advocate has an obligation to present the client’s case with persuasive force.  Performance of that duty while maintaining client confidences, however, is qualified by the advocate’s duty of ___________.”

Candor to a Tribunal.  The langague is from Comment [2] to Rule 3.3.

Question 4

Attorney contacted me with an inquiry. I replied:

  • “a comment to the rule states Other Lawyer is prohibited from communicating with any of your client’s constituents (1) who supervise, direct, or regularly consult with you on the matter; or (2) who have the authority to obligate your client with respect to the matter; or, (3) whose act or omission in connection with the matter may be imputed to your client for the purposes of civil or criminal liability.”

Given my response, Attorney most likely represents:

  • A.  someone under the age of 16.
  • B.  someone charged with a crime.
  • C.  multiple clients in the same matter.
  • D.  an organization.

That is the langague from Comment 7 to Rule 4.2.

Question 5

It’s rare that discovery disputes result in discipline. As we’ve seen recently, however, when they involve Executive Privilege, they make the news.

On July 24, 1974, the United States Supreme Court issued an order compelling the production of material that had been subpoenaed but not produced.  The underlying matter eventually resulted in 14 lawyers either being suspended or disbarred.

What is the most famous of the items that, 46 years ago today, the Court ordered to be produced in response to the subpoena?

The Nixon White House Tapes

The Watergate tapes' infamous 18.5-minute gap and Nixon's ...

Medal Monday #207

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

Medalists

  • Matthew AndersonPratt Vreeland Kennelly & White
  • Evan BarquistMontroll Backus & Oettinger
  • Mimi Brill, Windham County Public Defender
  • Erin GilmoreRyan Smith & Carbine
  • Robert Grundstein, Esq.
  • Glenn Jarrett, Jarrett & Luitjens
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Elizabeth KruskaPresident-Elect, VBA Board of Managers
  • John LeddyMcNeil Leddy & Sheahan
  • Kevin LumpkinSheehey Furlong & Behm
  • Jack McCullough, Vermont Legal Aid, Project Director – Mental Health Law Project
  • Jake Perkinson, Esq.
  • Jim Runcie, Esq.
  • Jay Spitzen, Esq.
  • Jonathan Teller-Elsberg, Hershenson, Carter, Scott & McGee
  • Jack Welch, Esq.

Answers

Question 1

The following statement refers to 2 of the 7 Cs of Legal Ethics.  One is “competence.” What’s the other?

Lawyers should be aware of the risks related to the inadvertent disclosure of client information & data that are associated with working remotely.

CONFIDENTIALITY.   For more, see my CLE video Protecting Client Data While Working Remotely. It’s 23 minutes.

Question 2

By rule, how often must a lawyer or firm reconcile a trust account?

  • A.  “Timely” with timely defined as no less than monthly.  V.R.Pr.C. 1.15A(a)(1)
  • B.  Quarterly.
  • C.  As recommended by general accounting standards and best practices.
  • D.  Trick question.  The rules are silent.  However, in a disciplinary case, the Vermont Supreme Court held that “more than 2 months without reconciliation is a violation of the general duty to safeguard client funds.”

Question 3

Client retains Lawyer and agrees to pay Lawyer an hourly fee.  The fee agreement is reduced to a writing that is signed by Client.

The representation ends.  Client has paid less than half of the outstanding bill and owes Lawyer for 20 hours of work.

May Lawyer claim the 20 hours as pro bono?

  • A. Yes.
  • B.  Yes, but only if Lawyer stops trying to collect the bill.
  • C.  Yes, but only if Client is “a person of limited means.”
  • D.  No.

To qualify as pro bono, legal services must be provided without a fee or expecation of a fee.  V.R.Pr.C. 6.1(a).

Question 4

There is a rule that has 3 exceptions.  They are:

  • unless the testimony relates to an uncontested issue;
  • unless the testimony relates to the nature and value of legal services rendered; or,
  • if disqualification of the lawyer would work substantial hardship on the client.

What does the rule prohibit?

It’s Rule 3.7 and it prohibits a lawyer from serving as an advocate at trial in a matter in which the lawyer is a necessary witness.  “Conflict of interest” counts as a correct answer.

Question 5

Juneteenth dates to an event that took place on June 19, 1865.  What event?

  • A.  The ratification of the 13th Amendment to the U.S. Constitution.
  • B.  President Lincoln’s signing of the Emancipation Proclamation.
  • C.  Union soldiers arriving in Texas and announcing that enslaved people were freeFor more, visit Juneteenth.com
  • D.  Lee’s surrender at Appomattox.

Juneteenth Flag : vexillology

 

Medal Monday #206

Monday, Monday.   Can’t trust that day.

Friday’s questions are here.  The answers follow today’s Medalists.

Medalists

Answers

Question 1

If a section of the Rules of Professional Conduct requires a “writing,” does an email comply with the rule?

  • A.   Yes.  V.R.Pr.C. 1.0(n) 
  • B.   No.

Question 2

Imagine you hear me say this during a seminar:

  • “Depositing your own funds to cover reasonably expected bank charges falls within a safe harbor from the general prohibition on _______________.”

Which of the 7 C’s of Legal Ethics correctly fills in the blank?

COMMINGLING

Question 3

Attorney serves as a mediator.  The matter does not settle or resolve at mediation.  Going forward, can Attorney represent one of the parties?

  • A.  No.
  • B.  Yes.
  • C.  Yes, if all parties to the matter give informed consent, confirmed in writing.  V.R.Pr.C. 1.12(a).
  • The Rules of Professional Conduct do not address this type of conflict issue.

Question 4

In response to an inquiry, I tell a lawyer “the rule says that you can’t counsel or assist your client to unlawfully alter, conceal, or destroy material that has potential evidentiary value. Most advisory ethics opinions add that you can’t counsel your client to do so if it would constitute spoliation.”

In context, “do so” most likely means that Lawyer asked me if Lawyer could advise a client to:

  • A.   Take down material that the client had posted to social media.  See, my blog post Advising Clients On Their Social Media Use
  • B.    Speak directly to a represented opposing party.
  • C.    Surreptitiously record a conversation with the opposing party.
  • D.    Intentionally post false information to social media to deceive the opposing party.

Question 5

Thank you Elizabeth Kruska for the tip!

Tech competence is a thing.

Earlier this year, a relatively famous lawyer was temporarily released from prison due to the COVID-19 crisis.  The lawyer, often mentioned on this blog, was back in the news this week: prosecutors allege that metadata associated with the lawyer’s court filings shows that the lawyer violated his conditions of release.

Name the lawyer.

Michael Avenatti.   Among others, CNN and The Hill covered the story.

Who Is Stormy Daniels Lawyer Michael Avenatti — And Who Is Helping ...

Medal Monday #205

It’s Memorial Day.  If you have a moment and are so inclined, the National Moment of Remembrance is at 3:00 PM.

Friday’s questions are here.  The answers follow today’s Medalists.

Medalists

  • Matthew AndersonPratt Vreeland Kennelly Martin & White
  • Alberto Bernabe, Professor, John Marshall Law School
  • Erin GilmoreRyan Smith & Carbine
  • Benjamin GouldPaul Frank & Collins
  • Laura Gorsky, Esq.
  • Bob Grundstein, Esq.
  • Mark Heyman, Esq.
  • Glenn Jarrett, Jarrett & Luitjens
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy, JB Kennedy Associates, Blogger’s Mom
  • Tom LittleLittle & Cicchetti
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Hal Miller, First American
  • Herb Ogden, Esq.
  • Jay Spitzen, Esq.
  • Thomas Wilkinson, Jr., Cozen O’Connor
  • Peter Young, General Counsel, Vermont Railway System

Answers

Question 1

Fill in the blank. (choices are below)

“In the course of representing a client a lawyer ___________ make a false statement of material fact or law to a third person.”

  • A.   should not
  • B.   should take reasonable steps not to
  • C.   may
  • D.   shall not   V.R.Pr.C. 4.1

Question 2

I’ve often mentioned the 7 Cs of Legal Ethics.  This week, preparing a CLE for government attorneys, I realized that there might be an 8th.

While a government attorney likely won’t have to worry about “commingling,” a government attorney often must ask a question that lawyers in private practice do not:

  • Who is the _________?

The answer begins with the letter C.

CLIENT

Question 3

Speaking of the Cs, a rule involving one of them includes a comment that says:

  • “A lawyer should adopt reasonable procedures, appropriate for the size and type of firm and practice, to determine in both litigation and non-litigation matters the persons and issues involved.  Ignorance caused by a failure to institute such procedures will not excuse a lawyer’s violation of this rule.”

What C?

Conflicts of Interest.  The language is from V.R.Pr.C. 1.7 Comment [3].  

Question 4

Lawyer called me with an inquiry.  My response included the words “scrubbing” and “spoliation,” as well references to several advisory ethics opinions that also speak of “scrubbing and spoliation.”

It’s most likely that Lawyer called because a client asked Lawyer:

  • A.   To withdraw.
  • B.   Whether the client could “take down” social media posts.
  • C.   Whether Lawyer would accept payment via PayPal or Venmo.
  • D.  To refund a retainer paid by a personal check that had been deposited to trust, but that did not yet constitute “collected funds.”

This post from September 2019 includes links to several social medial advisory ethics opinions, as well as to the Social Media Ethics Guidelines published by the New York State Bar Association’s Commercial & Federal Litigation Section.

Question 5

With Memorial Day in mind, believe it or not, there are lawyers who earned the distinction of being buried in at Arlington National Cemetery!  Yes Dad, posthumously!

Among them, William Howard Taft.  Having served as U.S. President and Chief Justice of the United States Supreme Court, Taft is the only person ever to lead two branches of government and was the first president buried at Arlington.

I don’t know whether Major League Baseball will return this summer.  If it does, I don’t know whether fans will be allowed to attend.  Someday, however, baseball stadiums will again include fans.

As he is with leading branches of government,  Taft is associated with not one, but two of baseball’s enduring game-day traditions.  The first is something that Taft did on the field, but that fans can only watch.  The second is something in which fans enthusiastically participate and one that, according to lore, became popular because of something Taft did in the stands.

Name either tradition.

Taft was the first president to throw out the “first pitch” on Opening Day and, according to lore, made the 7th inning stretch a thing.

Who was the first president to throw a first pitch on Opening Day ...

Medal Monday #203

Good morning!

I’ve renamed the Monday column in honor of a running tradition: “Medal Monday.”  The list formerly known as the “Honor Roll” will now fall under the caption “Medalists.”

Friday’s questions are here.  The answers follow the Medalists. For video answers with bonus commentary not available on the blog, go here.  It’s only 3:43.  By the way, my mom’s presence on the Honor Roll is not a courtesy mention for Mother’s Day.  She made it on her own doing!  Happy Mother’s Day mom!

And, yes! Actual medals are in the works! Might take a while, but I’ve got a plan.

IMG_4775

Medalists

  • Matthew AndersonPratt Vreeland Kennelly & White
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, UIC John Marshall Law School
  • Andrew DelaneyMartin Delaney & Ricci Law Group
  • Erin GilmoreRyan Smith & Carbine
  • Robert Grundstein, Esq.
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy, JB Kennedy Associates, Blogger’s Mom
  • Deborah Kirchwey, Esq.
  • Elizabeth KruskaPresident-Elect, VBA Board of Managers
  • John LamsonHave Justice Will Travel
  • John LeddyMcNeil Leddy & Sheahan
  • Mick LeddyMcNeil Leddy & Sheahan
  • Tom LittleLittle & Cicchetti
  • Pam MarshMarsh & Wagner
  • Jack McCullough, Project Director, Mental Health Law Project
  • Herb Ogden, Esq.
  • Jim Runcie, Ouimette & Runcie
  • Kristen ShamisMonaghan, Safar, Ducham
  • Jay Spitzen, Esq.
  • Jonathan Teller-Elsberg, Vermont Law School, JD Candidate
  • Jack Welch, Esq.

Question 1

X = the number of annual pro bono hours suggested by the rules.

Y = the number of years the rules require lawyers to maintain trust account records following the termination of the representation.

What is X * Y?

  • A.  420
  • B.  360
  • C.  350
  • D.  300

X = 50. V.R.Pr.C. 6.1(a)  

Y = 6. V.R.Pr.C. 1.6(a)

Question 2

What is the subject of the rule described here?

  • must be in a writing, signed by the client.
  • must be reasonable.
  • prohibited in criminal cases.
  • prohibited for securing a divorce.

A Contingent Fee.  V.R.Pr.C. 1.5(c)

Question 3

Below is my response to an inquiry.  It refers to one of the 7 C’s of legal ethics.  Which one?

  • Your duty is to remonstrate with the client, take reasonable remedial measures including, if necessary, disclosure to the tribunal.

CANDOR.  V.R.Pr.C. 3.3

Question 4

When used properly, the phrases “lateral transfers” and “ACH transfers” are used when discussing the rules on:

  • A.  conflicts of interest
  • B.  trust accounting
  • C.  respectively: conflicts of interest & trust accounting
  • D.  normal people don’t use phrases like these

Question 5

On May 8, 1978, David Berkowitz, against the advice of counsel, pled guilty to a series of charges relating to 8 separate shootings that left 6 dead and 7 wounded.

In 1999, Spike Lee made a movie that focused on an Italian-American neighborhood in the Bronx.  The movie was set in 1977 and against the backdrop of Berkowitz’s crime spree, a sweltering heat wave, and the Yankees’ championship season.

What was the nickname that the press used to refer to Berkowitz?

Bonus: what was the name of the movie?

Nickname: SON OF SAM

Movie: SUMMER OF SAM (A SPIKE LEE Joint)

Summer of Sam (1999) - IMDb

 

Monday Morning Honors

Happy Star Wars Day!

Don’t forget: on Thursday, and as part of National Lawyer Well-Being Week, I’m live-streaming legal ethics trivia.  I’ll start at 7PM on my YouTube channel.

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

Honor Roll

  • Matt AndersonPratt Vreeland Kennelly Martin & White
  • Penny Benelli, Dakin & Benelli
  • Mimi Brill, Windham County Public Defender
  • Honorable John M. Conroy, United States Magistrate Judge, District of Vermont
  • Beth DeBernardi, Administrative Law Judge, VT Dept. of Labor
  • Andrew DelaneyMartin Delaney & Ricci Law Group
  • Erin GilmoreRyan Smith & Carbine
  • Robert Grundstein, Esq.
  • Tammy Heffernan, Esq.
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Elizabeth KruskaPresident-Elect, VBA Board of Managers
  • John LeddyMcNeil Leddy & Sheahan
  • Jeffrey MessinaBergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Herb Ogden, Esq.
  • Kevin ShortellLaw Offices of Fred Peet
  • Norman Smith, Esq.
  • Jay Spitzen, Esq.
  • Jonathan Teller-Elsberg, Vermont Law School, JD Candidate
  • Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

A friend of mine dropped off some syrup last night. And I hadn’t done anything to deserve it!  But it made me think of this question:

True or false?  The rules specifically prohibit lawyers from bartering for legal services.

FALSE.  The terms are subject, however, to the reasonableness standard V.R.Pr.C. 1.5 (lawyer shall not charge an unreasonable fee).

Question 2

Most of the Rules of Professional Conduct apply generally, regardless of practice area. However, there’s a one rule that specifically addresses the “special responsibilities” of  ________:

  • A.  Bar Counsel.
  • B.  Insurance Defense Lawyers
  • C.  Probate Lawyers
  • D.  Prosecutors  V.R.Pr.C. 3.8, Special Duties of a Prosecutor

Question 3

Attorney represents Client.  Having good cause to do so, Attorney moves to withdraw from the representation.  The motion is denied, and the trial court orders Attorney to continue to represent Client.  By rule,  ______:

  • A.  the trial court must certify an interlocutory appeal.
  • B.  Attorney must request reconsideration and, if denied, immediately appeal.
  • C.  Attorney shall continue to represent Client.   V.R.Pr.C. 1.16(c).
  • D.  disobeying the trial court’s order is not an ethics violation.

Question 4

Sole Practitioner called me with an inquiry. I listened, then shared my thoughts.  I added “by the way, I have no idea why, but there’s actually a rule that says if you do, you have to cease the private practice of law in the geographic area in which you’ve practiced.”

If you do . . .what?

  • A.   Get elected to the Legislature.
  • B.   Plead guilty to a crime.
  • C.   Get licensed in another profession.
  • D.   Sell your law practice.  V.R.Pr.C. 1.17(a).

Question 5

Speaking of the Devil . . .

Jabez Stone was a New England farmer who fell upon hard times.  In exchange for 7 years of prosperity, Stone sold his soul to Mr. Scratch.  When Mr. Scratch sought to enforce the contract, Stone retained a lawyer.  A famous trial ensued.

Name the lawyer who represented Stone.

Daniel Webster in The Devil & Daniel Webster, by Stephen Vincent Benet.

The Devil And Daniel Webster (Creative Short Stories) (Paperback ...

Monday Morning Honors

Good morning.

Last night, I filmed another in the Garage Bar series of CLEs: Pro Bono & Professional Responsibility. It includes some of my thoughts on the need and the key rules to remember.  It’s 30 minutes, which brings the Garage Series to 6 hours since we started isolating.  Keep rowing!

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

Honor Roll

Answers

Question 1

How many hours of pro bono legal services do the Rules suggest a lawyer should provide each year?

  • A.   50, and the rule applies to all lawyers. 
  • B.   50, but the rule exempts government lawyers.

Rule 6.1 is clear: “Every lawyer has a professional responsibility to provide legal services to those unable to pay.”

If you’re interested in opportunities to provide pro bono legal services, please contact Mary Ashcroft.  Mary is the Vermont Bar Association’s Legal Access Coordinator. Here is a list of several low bono & pro bono programs. Or, check out the Vermont Volunteer Lawyers Project.

Question 2

I often mention “7 Cs of Legal Ethics.”  Each is a single word that begins with the letter “C.”  The construct is a helpful tool to remember the basics.

Anyhow, there is a rule that includes an exception that allows a lawyer to do something otherwise prohibited in order “to establish a claim or defense . . . .in a controversy between the lawyer and client.”

What is the “C” associated with the rule?

CONFIDENTIALITY.  Rule 1.6(a) prohibits a lawyer from disclosing information relating to the representation of a client.  Rule 1.6(c)(3) includes the exception stated in the question.

Question 3

In Vermont, a lawyer has a duty to take reasonable remedial measures upon learning that a client or witness called by the lawyer has offered material evidence that is false.  Per the applicable rule, this includes, if necessary, disclosure to the tribunal.  By rule, how long does the duty continue?

  • A.  until the lawyer is allowed to withdraw.
  • B.  until the conclusion of the proceeding.  
  • C.  forever.
  • D.  Trick question.  There is no circumstance in which a lawyer is authorized to inform a tribunal that a client submitted false evidence, even if the evidence was material.

V.R.Pr.C. 3.3(c).  Per Comment [13], “[a] proceeding has concluded within the meaning of this rule when a final judgment in the proceeding has been affirmed on appeal or the time for review has passed.”

Question 4

Former Client contends that Attorney committed malpractice.  They meet.  Former Client is not represented.  Former Client and Attorney discuss a settlement.

By rule, what must Attorney do before settling?

  • A.  advise Former Client in writing of the desirability of seeking independent legal advice related to the matter.
  • B.  give Former Client a reasonable amount of time to seek independent legal advice related to the matter.
  • C.  stop settlement discussions because lawyers are prohibited from settling malpractice claims with former clients who are not represented by counsel.
  • D.  A and B. V.R.Pr.C. 1.8(h)(2).

Question 5

Speaking of Arrested Development, the show includes 3 of my favorite fictional attorneys. Julia Louis-Dreyfuss appeared in a handful of episodes as Maggie Lizer, an ethically challenged prosecutor.

The other two attorneys are Barry Zuckerkorn and Bob Loblaw.  The former struggles with the duty of competence, while the latter runs the greatest blog in the history of blogs: The Bob Loblaw Law Blog.  Here’s Zuckerkorn’s business card.   For the question that follows, it’s literally the second biggest hint in the history of hints, behind only the hint in the introduction to the quiz.

5 Life Lessons from Barry Zuckerkorn

Arrested Development debuted in 2004.  However, the actors who play Zuckerkorn and Loblaw also appeared together in a popular comedy that debuted in 1974.  Name that show that debuted in 1974.

Henry Winkler (Zuckerkorn) and Scott Baio (Loblaw) also appeared together in Happy Days.  Kudos to Dan Richardson for noting it was originally entitled both Love and the Television Set and Love and the Happy Days when it premiered as an episode on the anthology series Love, American Style.

Amazon.com: Watch Happy Days Season 2 | Prime Video

 

Monday Morning Honors

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

HONOR ROLL

ANSWERS

Question 1

Person calls Lawyer.  Person tells Lawyer “I have an attorney, but I’d like a second opinion.”  Lawyer is not otherwise involved in the matter in which Person has an attorney.

True or False?

Lawyer must not discuss the matter with Person unless Person’s attorney consents.

FALSE.  Per Rule 4.2, while representing a client in a matter, a lawyer shall not communicate on the subject of representation with another person who the lawyer knows is represented in the matter.  A sentence in Comment [4] states that “this rule [does not] preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter.”  The Reporter’s Note to the 2009 Amendment to Comment [4] “clarifies that Rule 4.2 does not preclude communication from a represented person who is seeking a second opinion from a lawyer who is not representing a person in the matter.”

Question 2

Absent a written agreement between Lawyer & Client saying it will be treated otherwise, a flat fee paid in advance of any services being performed by Lawyer ____________:

  • A. must be deposited into trust.
  • B.  must not be deposited into trust.
  • C.  violates the rules.
  • D.  None of the above.

Rule 1.15(c) requires fees paid in advance to be deposited in trust until earned.  The only exception is a fee that the lawyer & client have agreed to treat as earned upon receipt and that has been memorialized as required by Rule 1.5(f). I discuss the distinction in this CLE videoFlat Fees, Misappropriation & Trust Account Scams (35 minutes).

Question 3

Last month, Person met with Lawyer to discuss the possibility of forming a lawyer-client relationship.  It was their only meeting or conversation.  Last week, Person informed Lawyer that Person has decided not to retain Lawyer and will retain another attorney. You may assume that Person met with Lawyer in good faith.

Which is most accurate?

  • A.  Lawyer is not bound to keep Person’s confidences.
  • B.  Lawyer owes the same duty of confidentiality as would be owed to any current or former client.
  • C.  The rules do not address this situation.  The rules refer only to duties owed to clients who form professional relationships with lawyers.
  • D.  That consultation better have been virtual!

Per Rule 1.18(b), “even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation” except as otherwise permitted or requied by the confidentiality rules that apply to current and former clients.

Question 4

For conflicts purposes, which do the rules treat differently than the others?

  • A.  a former client conflict that arises when Lawyer moves from private practice to government practice.
  • B.  a former client conflict that arises when Lawyer moves from government practice to practice.
  • C.  a conflict that arises from a Lawyer’s personal interest that would not create a significant risk of materially limiting the representation if handled by another attorney in Lawyer’s firm
  • D.  The rules treat each the same. None is imputed to the other lawyers in Lawyer’s firm/office.

For A & B, Rule 1.11 permits screening when lawyers move to and from government practice.  Option C is direct from Rule 1.10(a), the rule that otherwise imputes conflicts to all members of the affected lawyer’s firm.

Question 5

This is my personal all-time favorite and is my only concession to 200 being anything other than something.  There’s a hint into the intro.

It’s a good thing Michael Scott isn’t a lawyer.  In an episode of The Office, Michael ran over a co-worker in the company parking lot. He was driving a company car. When asked by an HR rep if the accident happened on company property, Michael replied:

  • On company property, with company property.”

Then, citing to the Bill of Rights, Michael said So . . .  we’re fine.”

What legal theory found in the Bill of Rights did Michael mistakenly think rendered him and the company “fine?”

DOUBLE JEOPARDY.  Then after Toby remarks that he doesn’t think Michael understands how this works, Michael adds “I’m sorry.  What is Double Jeopardy?”

No don't sue me that's exactly the point I'm trying not to make ...

Monday Morning Honors

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

Honor Roll

  • Matthew AndersonPratt Vreeland Kennelly & White
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, University of Illinois-Chicago John Marshall Law School
  • Andrew DelaneyMartin Delaney & Ricci Law Group
  • Erin GilmoreRyan Smith & Carbine
  • Robert Grundstein, Esq.
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • John LeddyMcNeil Leddy & Sheahan
  • Kevin LumpkinSheehey Furlong & Behm
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Margaret R. Moreland, Lawyer & Law Librarian
  • Jacob OblakBergeron Fitzpatrick Paradis
  • Herb Ogden, Esq.
  • Jim Runcie, Ouimette & Runcie
  • Kristen ShamisMonaghan, Safar, Ducham
  • Jay Spitzen, Esq.
  • Ashley TaylorHorsley Lajoie Goldfine
  • Jonathan Teller-Elsberg, Vermont Law School, JD Candidate
  • Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

If continued representation of a client will result in a violation of the Rules of Professional Conduct or other law, a lawyer ________________:

  • A.   may withdraw.
  • B.   must withdraw.

This is Rule 1.16(a)(1).  It is one of three instances in which Rule 1.16(a) requires withdrawal.  The other two are:

  • (a)(2): “the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client;” and,
  • (a)(3) “the lawyer is discharged.”

Question 2

Which is discussed in a different rule than the others?

  • A.   whether to settle a civil claim.
  • B    whether to accept a plea offer in a criminal case.
  • C.   whether to testify in a criminal case.
  • D.   whether two matters are the same or substantially related.

A, B, and C are decisions that, per Rule 1.2(a), are the client’s.  D is a phrase that appears in Rule 1.9(a), the rule that addresses a lawyer’s duties to a former client.  The rule prohibits a lawyer from representing a new client whose interests are materially adverse to a former client’s in the same or a substantially related matter.  Unless, of course, the former client provides informed consent, confirmed in writing.

Question 3

Scenario:   Third Person is paying Lawyer to represent Client.  Client has given Lawyer informed consent to accept payment from Third Person.  Third Person is not interfering with Lawyer’s professional judgment.

True or false?

Lawyer does not need Client’s consent to share with Third Person otherwise confidential information relating to Lawyer’s representation of client.

This is FALSE

Rule 1.8(f) permits a lawyer to accept compentatsion from someone other than the client only if “(1) the client gives informed consent; (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and (3) information relating to the representation is protected as required by Rule 1.6.”  Rule 1.6 is the rule on client confidences.   

In short, the fact that someone else is paying does not operate as a waiver of the client’s confidentiality.

Question 4

There’s a rule that prohibits a lawyer from communicating ex parte with two groups of people.  Each group begins with the same letter.  Name one of the groups

Rule 3.5 prohibits ex parte communication with JUDGES and JURORS. 

If this quiz were graded, I’d also accept “persons” and “parties.”  Rule 4.2 prohibits communication with represented persons, which includes represented parties, without the consent of the represented’s lawyer.

Question 5

I owe an opera question to one of my most loyal readers!

I often preach the duty of competence.

Derrick Wang is an uber-talented composer and writer who teaches interdisciplinary courses in music and law at Johns Hopkins.  Wang’s works include an opera that has received rave reviews.  With the tag line “we are different: we are one,” the opera was inspired by the friendship and writings of two U.S. Supreme Court justices.  Last month, a review in OperaWire opined that “this is the kind of opera that should be everywhere.”  When it comes to operas, Wang clearly has satisfied the duty of competence.

Name the two Supreme Court justices who inspired Wang’s opera.

The name of the opera is Scalia/Ginsburg.  The characters:

Column: Scalia and Ginsburg: The end of a beautiful friendship ...

The inspirations therefor:

scalia and ginsburg - RIP justice Scalia (With images) | Odd ...