Monday Morning Answers – #77

As June’s final week dawns, we welcome two first-timers to the #fiveforfriday Honor Roll.  Congrats (and welcome) to Lindsay Cabreros and Mike Donofrio.  Bonus points to Mike for slipping in a Here Come The Warm Jets reference in his response to Question 2. And special recognition to Nicole Killoran for being the only entrant to comment on the lyrical reference to “Psycho Killer” by the Talking Heads.  

Friday’s questions are here.  Spoiler alert: the answers follow today’s Honor Roll.

Honor Roll

  • Karen Allen, Karen Allen Law
  • Matt Anderson, Pratt Vreeland Kennelly Martin & White
  • Penny Benelli, Dakin & Benelli
  • Lindsay Cabreros, Graduate Intern, First American
  • Beth DeBernardi, ALJ, Vermont Department of Labor
  • Andrew DelaneyMartin & Associates
  • Mike Donofrio, Stris & Maher
  • Robert Grundstein
  • Anthony Iarrapino
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Patrick Kennedy, First Brother, Dealer.Com
  • Nicole Killoran, Vermont Law School, Professor, JD Externship Program
  • Ray MassuccoMassucco Law Offices
  • Hal Miller, First American, Oceanside Division
  • Herb Ogden, Law Office of Herb Ogden


Question 1

Two weeks ago, Andrew Manitsky, Tad Powers, and I presented a CLE that included a discussion of the ethics of puffing.  What was the topic of the CLE?

  • A.   Candor in Negotiations.  See, Puffing: The Ethics of Negotiations
  • B.   Candor in Opening & Closing Statements
  • C.   Lawyer Advertising & Social Media Marketing
  • D.   Advising Clients on Vermont’s (then proposed) Marijuana Laws

Question 2

In the matter of Byrne v. Eno, Attorney represents Byrne.  Lawyer represents Eno.

Eno e-mails a settlement offer directly to Attorney and does not copy Lawyer.

If Attorney calls me with an inquiry, it’s most likely that I’ll respond:

  • A.   You may reply directly to Eno on the substance of the offer.
  • B.   You may reply directly to Eno, but should limit the response to asking whether Eno is still represented by Lawyer
  • C.   Go through Lawyer.  The so-call “no-contact” rule still applies even though Eno initiated the communication.  See, Rule 4.2, Comment [3]
  • D.   “A,” but the comment suggests “B” is a better approach

Question 3

The phrase “single source” appears in the rules.  Last week, I spent several minutes discussing “single source” and its meaning at a CLE.

What was the topic of the CLE?

Trust Account Management.  See, Rule 1.15A(a)(4).  See also, PRB Decision 175, (Attorney Admonished for failing to have single source identifying all trust accounts)

Question 4

I get a lot of calls & e-mails on this topic.

Lawyer called me with an inquiry.  I listened, then told the Lawyer that the 50 states fall into two camps:  “end-product” states, and “work-product” states.  I added that, in my view, we’re an “end-product” state.

What did Lawyer call to discuss? Hint – the general topic is something that is required by the Rules of Professional Conduct and that 98% of you have had to deal with, no matter your practice area.

File Delivery Upon the Termination of a Representation.  For general guidance, see ABA Formal Opinion 471

Question 5

Rule 1.6(b) sets out the situations in which a lawyer must disclose a client’s intent to commit a crime.

More specifically, Rule 1.6(b)(1) requires a lawyer to reveal information related to the representation to the extent necessary to prevent the client or another person from committing a criminal act that the lawyer believes is reasonably likely to result in the death of a person other than the person committing the act.

If the rule had existed back then, it seems clear that Attorney Tom Hagen violated it as he watched Tessio driven away.

Name the movie.

Robert Duvall played Attorney Tom Hagen.  Abe Vigoda played Tessio.   Hagen failed to act to prevent Fish from sleeping with the fishes in The Godfather.

The Godfather




Monday Morning Answers: #76

Delayed post this morning.  As a Celtics fan, I got caught up reading blogs trying to figure out if this weekend’s trade makes any sense.  I’m on board with Tatum at #3.  I’m luke warm on anything involving Jimmy Butler, and not at all interested in renting Paul George for a year.

Anyhow, I digress.  Friday’s questions are here.  Spoiler alert: the answers follow the honor roll.

Honor Roll



Question 1

Attorney represents an organization in a matter.  Opposing Counsel knows that Attorney represent the organization in the matter.  Without Attorney’s permission, Opposing Counsel discusses the matter with a former employee of the organization.  Which is most accurate?

  • A.  Opposing Counsel violated the rules.
  • B.  Opposing Counsel did not violate the rules.  Rule 4.2, Comment [7], (“Consent of the organization’s lawyer is not required for communication with a former constituent.”)
  • C.  Attorney violated the rules.

Question 2

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

“has the clerk certified that the term of service is complete?”

What did Lawyer ask me if it would be okay to do?

Lawyer asked if it would be permissible to communicate with a juror.  See, Rule 3.5(b) & (c).

Question 3

Lawyer has actual knowledge that Client is going to commit a fraud.  The fraud is reasonably certain to result in substantial injury to the financial interests or property of another.  Which most accurate states Lawyer’s duty:

A.  Lawyer must disclose Client’s intent.

B.   Lawyer may disclose Clientt’s intent.

C.  Lawyer must disclose Cient’s intent if Client used Lawyer’s services in furtherance of the fraud.  Rule 1.6(b)(3).

D.  Lawyer must not disclose Client’s intent – disclosure is required only if a client’s crime or fraud will result in the  death of, or substantial physical harm to, someone other than the client.

Question 4

By rule, in contingent fee cases:

  • A.    The fee must be calculated before expenses are deducted
  • B.    The fee must be calculated after expenses are deducted
  • C.    The rule is silent as to whether the fee is to be calculated before or after expenses are deducted
  • D    The fee agreement must specify whether the fee will be calculated before or after expenses are deducted.  Rule 1.5(c).

Question 5

Barry Zuckerkorn is the Bluth family’s inept & incompetent lawyer on the Emmy Award winning show Arrested Development. Whatever his fee, it was probably unreasonable.

In one episode, Zuckerkorn literally jumped over a shark that was lying dead on a pier.  The scene was scripted in homage to a popular 1970’s-80’s TV show that starred the actor who plays Zuckerkorn.

  • Name the actor and the 1970’s show in which he starred.

Henry Winkler.  Happy Days.  The hint: the origin of the phrase “jumped the shark” is the episode in which Fonzie jumped a shark on water skis .


Monday Morning Answers & Honor Roll

I guess it’s summer.

Friday’s questions are HERE.  The answers follow today’s Honor Roll. And, speaking of the Honor Roll, there’s a first-time entrant this week: Professor Alberto Bernabe from John Marshall Law School. Professor Bernabe has a great blog on legal ethics.  It’s HERE.


  • Matthew Anderson, Pratt Vreeland Kennelly Martin & White
  • Alberto Bernabe, Professor of Law, John Marshall Law School in Chicago
  • Beth DeBernardi, ALJ, Department of Labor
  • Robert Grundstein
  • Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
  • Patrick Kennedy, First Brother, Dealer.Com
  • Deb Kirchwey, The Law Offices of Deborah Kirchwey,
  • Tom Little, VSAC
  • Hal Miller, First American, Oceanside Division
  • James Runcie, Runcie & Ouimette
  • Allison Wannop, Law Clerk, Vermont Superior Court


  • Easiest:   Question 2
  • Hardest:  Question 1

Question 1

The rules prohibit lawyers from asking clients to consent to conflicts that might arise in the future.

  • A.    True
  • B.     False.  See, Rule 1.7, Comment [22]Conflict waivers require informed consent. It can be difficult to provide informed consent to waive a conflict that has yet to arise. Thus, per the Comment, “[t]he effectiveness of such waivers is generally determined by the extent to which the client understands the material risks that the waiver entails.”
  • C.     True, but the rule only applies in criminal cases

Question 2

What do these have in common?

  • Expenses of investigation;
  • Expenses of medial examinations; and
  • Costs of obtaining and presenting evidence

Costs and expenses of litigation that can be advanced.  See, Rule 1.8(e)(1).  I’ve previously blogged that amending this rule might help to increase access to legal services.

Question 3

Which is the most accurate answer?

An attorney shall not “prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless __________”

  • A.    The attorney or recipient is related to the client.  Rule 1.8(c).
  • B.     The client gives informed consent
  • C.     The client gives informed consent, confirmed in writing

Question 4

Rule 1.18 relaxes a lawyer’s duty of loyalty to prospective clients who meet with, but do not retain, the lawyer.  There is another duty that Rule 1.18 does not relax.  That is, a duty that the lawyer owes to the prospective client even though the prospective client chose not retain the lawyer.

What is the duty?

The duty to maintain confidences.  See, Rule 1.18(b). More specifically, the duty not to use or reveal information shared in the consultation except as required or permitted by rules 1.6 and 1.9.

Question 5

Following up on last week’s controversial column, I know that a few of my readers prefer a particular band to both the Beatles and the Stones.

Imagine a lawyer who is on the road, and maybe on the run.  The lawyer says:

“Sitting and staring out the hotel window

Got a tip they’re gonna kick the door in again

I’d like to get some sleep before I travel

But if you gotta warrant I guess you’re gonna come in”

I’m not sure a lawyer satisfies the duty of competence by basing his or her understanding of criminal law/criminal procedure/constitutional law on the teachings of  …….. who?

The Grateful Dead.   Lyrics from the song Truckin’

As I mentioned Friday, I included this question for the several readers who responded to my Beatles v. Stones column by mentioning that they’re fans of the Dead.  I’m not against the Dead, but I never got into them. In fact, my favorite “version” of Truckin’ is the snippet of the song that Tesla mixed into Comin’ Atcha Live during the sneaky good Live at the Trocadero performance that was recorded & released as Five Man Accoustical Jam.


Monday Morning Answers: Beatles v. Stones

Mystery solved.

  • Mystery:  what can I blog about that will cause lawyers to respond?
  • Solution:  Assert that the Stones are better than the Beatles.

The responses were fantastic!  My non-scientific analysis:

  • 1/3 flat out disagreed with me
  • 1/3 disagreed, but argued that there’s room to like both bands
  • 1/3 agreed

Even within the final group, the responses revealed an affinity for Their Satanic Majesties Request that took me by surprise. Also, within my readership, there’s a healthy undercurrent of support for the The Kinks as being as important to the British Invasion as both the Beatles and Stones.

In any event, I love when lawyers argue passionately about an issue that has nothing to dow with the law. Indeed, one of the goals behind this blog is to demonstrate that we’re much more than the stereotype of our profession.  Readers:  you responses to Friday’s blog proved beyond a reasonable doubt that we are.  Thank you!

Stay tuned – I’m toying with the idea of a turning Friday’s debate into a moot court argument that I’ll use as a fundraiser.  And I already have an excellent idea of who will represent each side!

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

Honor Roll


  • Easiest:  Question 1
  • Most difficult: Question 5
  • Most difficult in ethics:  Question 2

There’s a rule that imposes “special responsibilities” upon:

  • A.  Prosecutors; Rule 3.8
  • B.  Judges
  • C.  Juvenile defenders
  • D.  Real estate lawyers who also sell title insurance

Question 2

The “self-defense” exception to Rule 1.6 is often discussed with respect to:

  • A.  Disclosing a client’s intent to commit a crime
  • B.  Disclosing a client’s past commission of a crime
  • C.  Responding to a client’s negative online review; See this blog post.
  • D.  Withdrawing from a matter to keep from violating the ethics rules

Question 3

Which is most accurate?

  • A.  A fee violates the prohibition on unreasonable fees only if it is collected
  • B.  Vermont’s rules require lawyers to self-report violations of the rules
  • C.  A comment to the rule on conflicts of interest with a former client suggests that the rule does not apply if 10 years have passed since the prior representation.
  • D.  A lawyer must deliver the file upon the termination of the representation.  Rule 1.16(d).

Question 4

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

“If you reasonably believe Client is telling you the truth, you can disclose it to the police or his family or someone who can help.  You don’t have to disclose, but you aren’t prohibited from disclosing.”

What did Attorney learn from or about Client that prompted Attorney to call me?

Attorney learned that Client intended to commit an act that is likely to result in death or substantial bodily harm to Client.  See, Rule 1.6(c)(1); Comment [10].

Question 5

With a hidden shout out to regular reader, here’s this week’s question 5:

This week, I’ve had the opportunity to speak with two fantastic groups of lawyers: the state’s prosecutors and the state’s public defenders.  You can’t swing a dead cat in Vermont’s criminal courts without hitting a dedicated, competent public service attorney.  To each group, thank you for all that you do.

Prosecutors and defense attorneys often ask me about Rule 3.8 and a prosecutor’s Brady obligations.  As most of you know, Brady v. Maryland involved a prosecutor’s decision to withhold potentially exculpatory information.

What specific item of evidentiary value to the defense did the Brady prosecutor fail to disclose?

A co-defendant’s written statement that the co-defendant acted alone.



Monday Morning Answers: Memorial Day

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

Honor Roll

  • Matthew Anderson, Pratt Vreeland Kennelly Martin & White
  • Penny Benelli, Dakin & Benelli
  • Jennifer Blomback, VATC
  • Beth DeBernardi, ALJ, Department of Labor
  • Robert Grundstein, Esq.
  • Anthony Iarrapino, Esq.
  • Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
  • Patrick Kennedy, First Brother, Dealer.Com
  • Aileen Lachs, Mickenberg, Dunn, Lachs, Smith
  • Kevin Lumpkin, Sheehey Furlong & Behm
  • Hal Miller, Esq.
  • Lon McClintock, Esq.
  • Herb Ogden, Esq.
  • Jim Runcie, Esq.


  • Hardest:  Question 5. Of the ethics, Question 1.
  • Easiest:  Question 4
  • Hidden Pop Culture Reference: Question 3.  Emmit & Ray Stussy are the twin brothers played by Ewan McGregor in this season of Fargo.  I highly recommend it. V.M. Varga has quickly become one of my favorite characters in TV history.


Question 1

Firm represents Client.  The matter settles and Firm receives an insurance check for $50,000.  Firm notifies Cient and deposits the check into trust.

Firm presents client with an accounting that indicates that Client owes Firm $15,000. Firm is prepared to disburse the remaining $35,000 to Client.

Client contends that she only owes Firm $10,000.

Assume that nobody other than Firm & Client have interests in the settlement.  Which is most accurate?

  • A.   Firm must keep the entire $50,000 in trust until the dispute is resolved.
  • B.   Firm must disburse $40,000 to Client and keep $10,000 separate until the dispute is resolved.
  • C.   Firm must disburse $35,000 to Client and keep $15,000 separate until the dispute is resolved.
  • D.  Firm must disburse $35,000 to Client, disburse $10,000 to Firm, and keep $5,000 separate until the dispute is resolved.  See, Rule 1.15.  

Section (e) requires a lawyer to disburse funds that are not in dispute.  Section (a) prohibits commingling.  So, there is $45,000 that isn’t in dispute: Client’s $35,000 and the $10,000 Client agrees is owed to Firm.  Those portions must be disbursed, with the disputed $5000 remaining separate until the dispute is resolved.

Question 2

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

  • “The first thing the rule requires is that you not state or imply that you’re disinterested.”

Given my statement, it’s most likely that Attorney called to discuss:

  • A.  A subpoena to testify about a former client’s matter
  • B.  A prospective client who met with, but did not retain Attorney
  • C.  A request from an unrepresented person to meet with Attorney to provide information related to a client’s matter.   See, Rule 4.3.
  • D.  Serving on a jury

Question 3

Lawyer represents Emmit in a dispute with a government agency.  Lawyer learns that the agency interprets a regulation in a particular way.

Lawyer also represents Ray.  Ray is involved in a dispute with the same government agency, one that involves the same regulation.

Which is most accurate?

  • A.   Absent Emmit’s consent, Lawyer may not use the agency’s interpretation to help Ray and, therefore, must withdraw from Ray’s matter.
  • B.   Unless the agency’s interpretation is a matter of public record, Lawyer may not use the interpretation to assist Ray and, therefore, must withdraw from Ray’s matter.
  • C.  If the two matters are the same or substantially related, Lawyer may use anything that he learns while representing Emmit to help Ray.
  • D.  If it would not disadvantage Emmit to do so, Lawyer may use the agency’s interpretation of the regulation to help Ray.  See, Rule 1.8, Comment [5].

Question 4

Of the following, one has not traditionally been treated as a rules violation, viewed instead as a mistake that does not rise to the level of an ethics violation.  In my opinion, that should soon change, and the conduct should be considered a violation of the rules.

  • A.   Withdrawing because a client calls or e-mails too often
  • B.    An associate acting at the express direction of a supervising partner
  • C.   Falling for a common trust account scam.  See, this post.
  • D.   Representing a client who is adverse to a former client on the theory that “I don’t remember anything about the former client’s case.”

Question 5

Somewhat of a dichotomy given the weekend . . .

This lawyer collapsed and died of a heart attack near his Washington, D.C. home in 1988.  He was buried with full military honors in Arlington National Cemetery – in part because of his service in the U.S. Navy World War II, and in part because he once held a cabinet position.  The cabinet position: Attorney General of the United States.

In 1976, the lawyer was disbarred by the State of New York as a result of having been convicted of crimes that took place while he served as U.S. Attorney General.

Name the lawyer.

John Mitchell. Mitchell was Attorney General during Watergate.

Monday Morning Answers: #72

Wow! Huge honor roll this week.  Great job readers!

Last Friday’s questions are here.  Today’s answers follow the Honor Roll.

Honor Roll

  • Matthew Anderson, Pratt Vreeland Kennelly & White
  • Penny Benelli, Dakin & Benelli
  • Beth DeBernardi, ALJ, Dept. of Labor
  • Anne Day, Esq.
  • Andrew Delaney, Martin & Associates
  • Laura Gorsky, Law Office of David Sunshine
  • Robert Grundstein, Esq.
  • Glenn Jarrett, Jarrett & Luitjens
  • Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
  • Patrick Kennedy, First Brother, Dealer.Com
  • Nicole Killoran, Vermont Law School
  • Aileen Lachs, Mickenberg, Dunn, Lachs & Smith
  • Jordana Levine, Marsicovetere & Levine
  • Pam Marsh, Marsh & Wagner
  • Lon McClintock, Esq.
  • Jeffrey Messina, Bergeraon, Paradis & Fitzpatrick
  • Hal Miller, First American, Oceanside Division
  • Herb Ogden, Esq.
  • David Sunshine, Esq.
  • Emily Tredeau, Office of the Defender General


  • Easiest – Question 1
  • Hardest – Question 2


Question 1

Attorney called me with an inquiry. I listened. Then, I asked:

  • “Is the new case the same as or substantially related to the old one?”

What general area of legal ethics did Attorney call to discuss?

  • A.   Solicitation
  • B.   File Retention
  • C.   Conflicts of Interest, Rule 1.9(a)
  • D.   Fee Agreements

Question 2

Which does not belong?

  • A.  The client agreed.  
  • B.   The result obtained
  • C.   The lawyer’s experience, reputation, and ability
  • D.   The skill requisite to perform the service properly

Rule 1.5 requires fees to be reasonable.  Rule 1.5(a) lists the factors that go into the analysis of whether a fee is reasonable.  Choices B, C, D are listed. Choice A is not.  It is widely accepted that the fact that a client agreed to a fee does not, standing alone, render the fee reasonable.

Question 3

A law firm deposited its own money into its trust account.  Which is most accurate?

  • A.  Each lawyer in the firm violated the Rules of Professional Conduct
  • B.  The firm’s partners (or equivalent thereof) violated the Rules of Professional Conduct
  • C.  It depends whether the deposit exceeded $1000
  • D.  It depends whether the deposit was in an amount reasonably necessary to pay bank charges to the account.  See, Rule 1.15(b).  The rule allows lawyers to deposit their own funds into trust in an amount reasonably necessary to pay bank charges on the account.  The fact that the question asked about a firm does not change the analysis.

Question 4 (Fill in the blank)

Lawyer called me with an inquiry.   I listened.  Then, I said

“As of now, there’s no duty to ENCRYPT routine electronic client communications. But, it won’t be long until the failure to do so is deemed ‘unreasonable’.”  See, Last Thursday’s Post: Encryption & The Evolving Duty to Safeguard Client Information

Question 5

This week’s question 5 is dedicated to a long-time reader.

John Luther Long was born on New Year’s Day in 1861.   He was admitted to the Philadelphia Bar in 1881.

I have no idea if Attorney Long was a competent or ethical lawyer.  However, it seems that he was a competent writer.

In 1898, Attorney Long published a short story about a journey of U.S. Naval Officer Benjamin Franklin Pinkerton.  The story caught the attention of Giacomo Puccini. In turn, Puccini wrote an opera based on Attorney Long’s story.

Puccini’s opera is one of the most famous operas of the 20th century.

Your mission, should you choose to accept it, is to identify the short story/opera.

Madame Butterfly.   Attorney Long’s wiki entry is here.  Puccini’s is here.

Madame Butterfly

Monday Morning Answers: #71

Monday, Monday . . .

Hard to believe that was their only number one song.  But, Wikipedia never lies.

Friday’s questions are here.  The answers are below today’s Honor Roll. And what an honor roll it is! Great job this week folks.

Honor Roll


Question 1

There’s a rule that requires lawyers to provide clients with diligent representation.  A comment to the rule suggests that solos and lawyers in small firms should have:

  • A.   Succession plans; Rule 1.3, Comment 5
  • B.   Cybersecurity Insurance
  • C.   A bookkeeper who “optimally, works at least part-time”
  • D.   Cloud Based Practice Management Systems

Question 2

The rules establish duties that lawyers owe to four specific types of clients. Rules 1.7 and 1.8 refer to the “current client.”  Rule 1.13 sets out the duties that apply when an “organization” is the client.

What are the two other types of clients to whom lawyers owe ethical duties?

(hint: the answers are not, for example, “divorce clients” or “real estate clients”, or any specific area of practice)

Question 3

Attorney represents Green.  Green intends to enter into a contract with Orange.  Orange is not represented.

The parties and Attorney meet to sign the contract.  Just before signing, Orange asks Attorney “what do you think this contract means if I sign it?”

Which is most accurate?

  • A.    Attorney must decline to answer & must advise Orange to seek legal advice from another lawyer
  • B.   Attorney must decline to answer & may advise Orange to seek legal advice from another lawyer
  • C.   Attorney must ask Green whether Green consents to Attorney answering the question
  • D.   If Attorney explains that she represents an adverse party & is not representing Orange, she may explain to Orange her own view of the meaning of the contract & its underlying legal obligations.  See, Rule 4.3, Comment 2

Green and Orange was a reference to Friday’s reference to The Troubles.

Question 4

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

  • “Sounds to me like you don’t have a duty to do anything.  You fall under the exception to the rule, because it’s information relating to the representation of your client and is protected from disclosure.  However, a comment to the rule says that you should encourage your client to, especially if it won’t negatively impact client’s case to do so.”

Question: What did I mean when I said “encourage your client to?”  To do what?

To report another attorney’s professional misconduct. Rule 8.3, Comment 2

Question 5

Jeff Kerr dropped out of law school after two years. So, it appears to me that disciplinary authorities in Fictional World don’t have jurisdiction over Kerr.  If they did, I wonder whether they’d prosecute him.

Using the alias “Nick Easter,” Kerr connived his way onto a civil jury and manipulated the jury throughout a trial.  On several occasions, “Easter” and his girlfriend secretly met with each side to the litigation and offered to sway the jury for the right price.

For some reason, the subject of the trial is different in the movie than it was in the book, which was a runaway best-seller.  But, the plot is the same.  In each, Easter and his girlfriend are motivated by a desire to get revenge against Big Industry.

Your mission, should you choose to accept it, has two parts

  • Identify the industry at issue in the book.
  • Identify the industry at issue in the movie.

Hint:  As a former high school basketball coach, I’m compelled to mention that, in the movie, the defense team’s consultant who deals with Easter and his girlfriend is also one of Fictional World’s most famous high school basketball coaches

This is John Grisham’s The Runaway Jury.  In the book, it’s the tobacco industry.  In the movie, the firearms industry.  In the movie, Hickory High’s Coach Norman Dale has apparently transitioned into a new career as a jury consultant.

Nick Easter           Rankin Fitch

The Runaway Jury

Monday Morning Answers: Kentucky Derby Edition

Friday’s questions are HERE.  As usual, when it comes to cashing on the Derby, I’m left Always Dreaming.

But congrats Jeanne Kennedy! My mom had Always Dreaming to win AND to place, which was good enough for a tidy little payoff and, more importantly, honorable mention Honor Roll status.  Given her success and Saturday’s sloppy track, I guess my mother is a mudder.

Spoiler alert – the answers to Friday’s questions appear immediately after the Honor Roll.



Question 1

Pletcher is a former client of Lawyer’s.  Lawyer took Pletcher’s case on a contingent fee. By rule, what must Lawyer maintain for 6 years following the termination of the representation of Pletcher?

  • A.    A copy of Pletcher’s file
  • B.    A copy of Pletcher’s fee agreement
  • C.    Records of any property or funds held in connection with the representation of Pletcher.  V.R.Pr.C. 1.15(a)(1)
  • D.   Nothing.

Note: the rules do not require lawyers to maintain copies of closed files.  Rather, Rule 1.16(d) requires a lawyer to surrender the file upon the termination of a representation.  If a lawyer chooses to keep a copy (which the lawyer’s liability policy might require) the lawyer is keeping a copy for the lawyer’s own purposes, not because the rules require it.

Question 2

Baffert is a long time client of Attorney. Last night, Baffert met with Attorney for legal advice.  During the meeting, Baffert told Attorney some bad things that he intends to do tomorrow.  As a result, Attorney reasonably believes that Baffert will commit a crime that is certain to result in substantial injury to the financial interests of Lukas.  Attorney has no reason to believe that Lukas or anyone else will suffer bodily injury.

Which is most accurate?

  • A.   Attorney must disclose Baffert’s intent
  • B.   Attorney must not disclose Baffert’s intent
  • C.   If Baffert is using or has used Attorney’s services to further the crime, Attorney must disclose Baffert’s intent.  V.R.Pr.C. 1.6(b)(2)
  • D.  If Baffert is using or has used Attorney’s services to further the crime, Attorney may disclose Baffert’s intent.

The key here is whether Baffert is using or has used Attorney’s services to further the crime.  If so, disclosure is mandatory.

Question 3

It’s Monday afternoon.

Late Saturday evening, Client was arrested and charged with DUI.  Fortunately (I guess) for Client, he had just won $2500 as a result of McCracken’s stunning victory in the 2017 Kentucky Derby. So, on Monday morning, Client retained Lawyer who agreed to handle the DUI for a $2500 flat fee.  Client and Lawyer decided not to confirm the fee agreement in writing.

Now, on Monday afternoon, which is most accurate?

  • A.   Lawyer violated the rules.
  • B.   Lawyer may not deposit the $2500 into her IOLTA account
  • C.    Lawyer must deposit the $2500 into her IOLTA
  • D.   A & B

The rules do not require the fee agreement to be reduced to writing.  However, since it was not reduced to writing, it does not qualify as a type of advanced fee that Lawyer may treat as “earned upon receipt.”  See, V.R.Pr.C. 1.5(e)(2).  We are left, then, with a fee that is paid advanced.  Per Rule 1.15(c), the $2500 must go into trust until earned.

Question 4

Attorney represents Irish War Cry.  Opposing Counsel represents Classic Empire.

Reviewing discovery that has been provided by Opposing Counsel, Attorney finds information that Attorney concludes was inadvertently produced.

Which is most accurate?

  • A.   Attorney must notify Opposing Counsel.  V.R.Pr.C., 4.4(b)
  • B.   Attorney may notify Opposing Counsel
  • C.   Attorney must first consult with Irish War Cry
  • D.   Attorney’s duties under the Rules of Professional Conduct necessarily depend upon whether the information falls under the evidentiary privilege that Classic Empire shares with Opposing Counsel.

Question 5

Mick is a criminal defense attorney.  His ex-wife is a prosecutor who bears a striking resemblance to one of the players in last week’s Question 5: Mona Lisa Vito.

Mick represents Louis Roulet, an ultra-rich playboy who is accused of a brutal crime. At first, Mick is convinced that Roulet is innocent. However, as the case progresses, Mick’s doubts grow.  Eventually, Roulet tells Mick that he (Roulet) previously committed a different crime . . . a murder for which one of Mick’s former clients, Jesus Martinez, is serving life in prison!

Identify the movie in which Mick confronts the many ethical dilemmas associated with his knowledge that a current client committed a crime for which a former client has been convicted.

(Of lesser importance is whether Mick’s driver, another former client, might have grounds to complain that Mick has charged him an unreasonable fee.)

The Lincoln Lawyer.

Lincoln Lawyer.jpg

Monday Morning Answers: #69

Welcome to May!  Before I get to the answers, Friday’s questions are HERE.  Click before you scroll, because the answers follow the honor roll.

Honor Roll


Question 1

A comment to one of the rules includes the following language.

  • “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 violation of this rule.”

What’s the topic of the rule?

Conflicts.  Rule 1.7, Comment [3].  In other words, ignorance caused by a failure to adopt reasonable procedures to check for conflicts will not excuse a violation of the rule.

Question 2

Solo just opened a new practice.  Solo used to work for the Alliance Firm.

At new practice, Solo represents Vader in matter against Luke.

Luke asks Alliance for representation.   Prior to asking, Luke has never been represented by Alliance.

Which is most accurate?

  • A.    Alliance may not represent Luke.
  • B.    If Vader is a former client of Alliance, Alliance may not represent Luke
  • C.    If Vader is a former client of Alliance, Alliance may not represent Luke absent Vader’s informed consent.
  • D.    If Vader is a former client of Alliance, Alliance may represent Luke unless (1) the matter is the same as or substantially related to a matter in which it represented Vader; and (2) any lawyer working at Alliance has information about Vader that the rules prohibit from being disclosed.  See, Rule 1.10(b).

Not a single reader commented on the Star Wars reference.

Question 3

Vermont’s rules prohibit lawyers from asking a person other than to client to voluntarily refrain from giving information to another party.  The rule does not apply if (a) the person is a relative, employee, or agent of the client; AND (b) the lawyer reasonably believes that the person’s interests will not be adversely affected by choosing to refrain from giving the information.

The rule applies to all types of cases. However, the Reporter’s Notes caution lawyers that conduct permitted by the rule:

  • A.  Is discouraged.
  • B.  Adversely reflects on a lawyers’ fitness to practice law if done regularly
  • C.  Might constitute obstruction of justice in a criminal case. See, Rule 3.4(f), Reporter’s Notes to 2009 Amendments.
  • D.  Likely violates the rule on dealing with the unrepresented person

Question 4

Attorney called me with an inquiry.  I listened, then responded by saying “generally, it’s prohibited if one of your significant motives for doing so is pecuniary gain. Though, if motivated by pecuniary gain, it’s okay if the person is a lawyer or has a close family/personal/professional relationship with you.”

What general topic did Attorney call to discuss?

Solicitation/Direct Contact with Prospective Clients.  Rule 7.3(a).

Question 5

Vincent Gambino meandered back & forth across the line between “ethical” and “not ethical.”  But, talk about tech competence! (positraction is technology!) Plus, in the end, Gambino’s trial skills demonstrated an ability to provide competent & diligent representation.   Question 5 invokes Gambino.


The question:  What color am I?

  • I am a color.  Attorney Gambino asked witness Mona Lisa Vito about a similarity between the 1963 Pontiac Tempest and the 1964 Buick Skylark. Specifically, he asked if both GM models were available in me.  Ms. Vito answered “They were!”


Mona Lisa Vito

What color am I?

I am Metallic Mint Green.

Metallic Mint Green

Monday Morning Answers: #68

Friday’s questions are HERE. Answers follow the Honor Roll.

Congrats to Allison Wannop & Nicole Killoran.  Their responses suggest familiarity with Goldbach’s Conjecture!

Oh, and on this topic, I’m pleased to announce that my good friend Jeff Davis (@jdavismmus) has been named the Official Mathematician of Ethical Grounds.  Think I won’t be able to figure out 33.3% of  a contingent fee?  With JD on the case, think again!

Finally, congrats to Liz Kruska & Wesley Lawrence for recognizing Galen & Meb in Question 4!

Honor Roll

  • Penny Benelli, Esq., Dakin & Benelli
  • Beth DeBernardi, ALJ, VT Dept. of Labor
  • Laura Gorsky, Law Offices of David Sunshine, Newly Minted Passer of the Bar
  • Keith Kasper, Esq., McCormick, Fitzpatrick, Kasper & Burchard
  • Patrick Kennedy, First Brother, Dealer.Com,
  • Nicole Killoran, Esq., Vermont Law School, J.D. Externship Program
  • Elizabeth Kruska, Esq., Law Offices of Elizabeth Kruska
  • Wesley Lawrence, Esq., Theriault & Joslin
  • Jordana Levine, Esq., Marsicovetere & Levine
  • Jeffrey Messina, Esq., Bergeron, Paradis, Fitzpatrick
  • Hal Miller, Esq., First American, Oceanside Branch
  • Kane Smart, Esq., Agency of Natural Resources
  • Allison Wannop, Esq., Vermont Superior Court


Questions 1 & 2

There is a rule that prohibits an act, but only if the act is done to gain an advantage in a certain type of case.

Your mission: identify the act & the type of case.

  • 1.  Rule 4.5 prohibits presenting, participating in presenting, or threatening to present criminal charges; 
  • 2.  To gain an advantage in a civil case.

Question 3

There is a rule that requires a lawyer to “take steps to the extent reasonably practicable to protect a client’s interests . . ..”

You’ll find the specific language that I quoted in the rule that applies:

  • A.  upon the termination of a representation.  Rule 1.16(d).
  • B.  when the client suffers from a diminished capacity
  • C.   when the client has submitted false testimony or evidence to a tribunal
  • D.   when the client fails to communicate with the lawyer

Question 4

Galen & Meb are contemplating a lawsuit.  They asked Attorney to represent them both in the matter.  Attorney had inkling that a conflict would arise down the road.

Attorney shared his concerns with both Galen & Meb.  Then, sitting with both, Attorney asked Galen & Meb to agree in advance to waive any conflict that might arise.  Both Galen & Meb agreed to waive any future conflict.

Which is most accurate?

  • A.   Attorney violated the rules – VT doesn’t allow advanced waivers
  • B.   Attorney violated the rule on client confidences
  • C.   Attorney violated the rules by failing to provide Galen & Meb an opportunity to seek independent legal advice.
  • D.   If a conflict arises, the rules might require Attorney to withdraw despite the waiver.  Rule 1.7, Comment 22

Question 5

Several years ago, a PRB case resulted in a debate about Rule 4.1.  In particular, the extent to which it applied to undercover investigations supervised by government attorneys.

Which gives me a hook to this question.

Earlier this week, the New York Attorney General announced that an undercover operation had resulted in the arrest of man named “Newman.”  Newman is alleged to have spent many years defrauding businesses by pretending to be an architect.

In a tweet announcing the arrest of the fake architect, New York’s Attorney General acknowledged the obvious Seinfeld connections.  In fact, the NY AG tweeted that the undercover operation had been given a code name that reflected its Seinfeld ties.

What’s the code name?

“Operation Vandelay Industries.”  The New York Times had the story HERE.  As you’ll see, as funny as the reference is, the NY AG didn’t exactly comply with the duties of competence  & diligence when it comes to Seinfeld references. It’s almost like he has no Seinfeld experience whatsoever.  That’s what makes this so difficult.

Thank you Debbie Emerson, my fake doctor, for the tip!!

Vandelay Industries