Monday Morning Answers #184

Welcome to Monday!  Friday’s questions are here.  Today’s answers follow this week’s honor roll.

Honor Roll

  • Karen Allen, Esq.
  • Matthew AndersonPratt Vreeland Kennelly Martin & White
  • Evan BarquistMontroll Backus & Oettinger
  • Alberto Bernabe, Professor, John Marshall Law School
  • Anna BlackStackpole & French
  • Andrew DelaneyMartin & Delaney
  • Laura Gorsky, Esq.
  • Bob Grundstein, Esq.
  • Tammy Heffernan, Esq.
  • Glenn Jarrett, Jarrett & Luitjens
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
  • John LeddyMcNeil, Leddy, & Sheahan
  • Tom LittleLittle & Cicchetti
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Lon McClintockMcClintock Law Offices
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Hal Miller, First American
  • Jim Runcie, Ouimette & Runcie
  • Kristen ShamisMonaghan, Safar, Ducham
  • Jonathan Teller-Elsberg, Vermont Law School, JD Candidate
  • Jack Welch, Esq.

Question 1

If Lawyer’s continued representation of a client will result in a violation of the Rules of Professional Conduct, Lawyer _____________.

  • A.    may withdraw.
  • B.    shall withdraw.  V.R.Pr.C. 1.16(a)(1)
  • C.    oddly, this situation is not mentioned in the Vermont Rules of Professional Conduct.

Question 2

Lawyer called me with an inquiry involving Client and Other.  I listened.  Then, I said:

“it’s ok as long as:

  1. Client gives informed consent;
  2. Other doesn’t interfere with your professional judgment or your relationship with Client; and,
  3. you don’t share any information about the representation with Other absent Client’s consent.”

What is Other’s involvement with this situation?

Other is paying for Lawyer’s representation of Client.  V.R.Pr.C. 1.8(f).

Question 3

Later today at the Bankruptcy CLE, I’m going to mention “the 6 Cs of Legal Ethics.”  Competence, Communication, Confidentiality, Conflicts, Candor, and Civility.

There’s actually a 7th “C”, but the word does not appear anywhere in the rules.  Rather, it’s the word we use to refer to a violation of the duty to hold property of clients and third persons separate from the lawyer’s own property.

What’s this 7th “C”?

Commingling

Question 4

Lawyer represents Kennedy.   This morning, Kennedy gave Lawyer a bank check for $6,000 to pay for various expenses related to the representation, including legal fees owed to Lawyer.  Lawyer did not have time to make it to the bank today but intends to deposit Kennedy’s check on Monday.

Honestly, Kennedy is a pain.  He hasn’t paid in a long time and has a hefty outstanding bill.

Lawyer’s trust account holds funds that belong to clients other than Kennedy. This afternoon, Lawyer wants (finally) to pay herself for legal services provided to Kennedy by transferring funds from the trust account to her operating account.  Then, on Monday, Lawyer intends to replace those funds by depositing Kennedy’s bank check into trust.

Which is most accurate?

  • A.   Good plan, but only because it’s a bank check, not a personal check.
  • B.   Good plan, if Lawyer charges Kennedy a reasonable fee.
  • C.   Bad plan, because the bank check is for more than $5,000.
  • D.   Bad plan, because the disbursement would take place before Lawyer deposits Kennedy’s bank check into her trust account.  V.R.Pr.C. 1.15(f).

Question 5

Today is the 154th anniversary of the ratification of the 13th Amendment to the United States Constitution, the amendment that abolished slavery.

One of the members of Congress who was instrumental in drafting and passing the 13th Amendment was a “radical republican” who was born & raised in Vermont.  After leaving Vermont, he practiced law in Pennsylvania.  As a trial lawyer, legend has it that he responded to a judge’s warning that he was “manifesting contempt” by saying “Sir, I’m doing my best to conceal it.”

In 2012, Tommy Lee Jones played him in a movie about Abraham Lincoln and won the Academy Award for Best Supporting Actor .

Name the lawyer who was born & raised in Vermont and who played a critical role in drafting, passing, and ratifying the 13th Amendment.

Danville’s own Thaddeus Stevens

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Monday Morning Answers #183

Welcome to Monday!  Friday’s questions are here.  So many readers miss Bove’s!  The answers follow today’s Honor Roll.

Image result for bove's logo

Honor Roll

  • Karen Allen, Esq.; Karen Allen Law
  • Evan BarquistMontroll Backus & Oettinger
  • Penny Benelli, Dakin & Benelli
  • CeCe ConradCostello, Valente & Gentry
  • Honorable John M. Conroy, United States Magistrate Judge, District of Vermont
  • Corinne DeeringPACE Registered Paralegal®.  Paul Frank & Collins
  • Erin GilmoreRyan Smith & Carbine
  • Robert Grundstein, Esq.
  • Glenn Jarrett, Jarrett & Luitjens
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
  • Elizabeth KruskaPresident-Elect, VBA Board of Managers
  • John LeddyMcNeil Leddy & Sheahan
  • Tom LittleLittle & Cicchetti
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Hal Miller, First American
  • Herb Ogden, Esq.
  • Kristen ShamisMonaghan, Safar, Ducham
  • Jonathan Teller-Elsberg, Vermont Law School, JD Candidate
  • Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

Consider the following: (1) the time & labor required; (2) the results obtained; (3) the lawyer’s experience, reputation and ability.

Each is mentioned in the rule that governs:

  • A.   Competence
  • B.   Diligence
  • C.   Conflicts
  • D.   Fees  V.R.Pr.C. 1.5

Question 2

At a CLE, I give the following short answer to a question: “(1) the client gives informed consent; or (2) it’s impliedly authorized to carry out the representation.”  Most likely, it was a question on the rule that governs:

  • A.  Conflicts of Interest – Concurrent Clients
  • B.  Conflicts of Interest – Former Clients
  • C.  Confidentiality of Information V.R.Pr.C. 1.6(a) (my comments are two of the exceptions to the rule against disclosing information relating to the representation.)
  • D.  Disbursed funds from trust in reliance upon a deposit that does not yet constitute “collected funds.”

Question 3

Attorney called me with an inquiry. I listened, then said “the rule says that you can’t approach her in person, by phone, or by real-time electronic communication unless she’s (1) a lawyer; or (2) someone with whom you have family, close personal, or prior professional relationship.”

Who is the “she” I referred to in my response?

  • A.  a prospective client from whom Attorney wants to solicit employment.  V.R.Pr.C. 7.3
  • B.  a juror.
  • C.  a represented witness in a matter in which Attorney represents a party.
  • D.  an employee of an organization that is represented in a matter in which Attorney’s client is adverse to the organization.

Question 4

Last month, Lawyer served as a mediator in Oswald v. Ruby.  The matter did not resolve at mediation. Now, Ruby wants to retain Lawyer in the same matter.

Which is most accurately states the rule? Lawyer:

  • A.  may not represent Ruby.
  • B.  may represent Ruby if both Oswald & Ruby give informed consent, confirmed in writing.  V.R.Pr.C. 1.12(a)
  • C.   may represent Ruby if Oswald did not disclose in the mediation any information that could be “significantly harmful” if used against Oswald.
  • D.  B & C.

Question 5

Yesterday, I blogged about lawyers convicted of crimes. Today, speaking of lawyers convicted of crimes, conspiracy theories and JFK . . .

. . . Jim Garrison gained fame as the District Attorney for New Orleans.  In 1962, he accused several judges of racketeering and conspiring against him.  The judges charged him with criminal defamation. He was convicted. However, on appeal, the United States Supreme Court overturned the conviction, concluding that the statute Garrison was charged with violating was unconstitutional.

Years later, Garrison began his own investigation into the JFK assassination.  The investigation culminated with the arrest and trial of Clay Shaw for his alleged participation in a conspiracy to assassinate President Kennedy.  After a trial that took over a month, a jury needed less than an hour to acquit Shaw.

Garrison and the trial were featured in the Oliver Stone movie JFK.  Kevin Costner starred as Garrison. Garrison himself appeared in the movie, playing a famous judge.  The judge was involved in both the criminal defamation case against Garrison and an investigation of the JFK assassination.

Name the judge.

Chief Justice Earl Warren.  He was Chief Justice when the Court issued Garrison v. Louisiana and, later, chaired the Warren Commission.

Image result for earl warren images

Monday Morning Answers #182

May your Monday not have begun in an airport!  In the spirit of Question 5, all I can do now is shake it off, shake it off.

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

Honor Roll

  • Carolyn Anderson, General Counsel, Green Mountain Power; Vice-Chair, Professional Responsibility Board
  • Evan BarquistMontroll Backus & Oettinger
  • Honorable John M. Conroy, United States Magistrate Judge, District of Vermont
  • Erin GilmoreRyan Smith & Carbine
  • Laura Gorsky, Esq.
  • Robert Grundstein, Esq.
  • Glenn Jarrett, Jarrett & Luitjens
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
  • John LeddyMcNeil Leddy & Sheahan
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Jeffrey MessinaBergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Herb Ogden, Esq.
  • Nancy Hunter Rogers, Chamberlin School 
  • Jim Runcie, Ouimette & Runcie
  • Kristen ShamisMonaghan, Safar, Ducham
  • Jonathan Teller-Elsberg, Vermont Law School, JD Candidate

Answers

Question 1

A lawyer has a duty to reasonably consult with the client about the means by which the client’s objectives are to be accomplished.

  • A.   False.  The lawyer controls the means.
  • B.   False.   The lawyer shall abide by a client’s decisions with respect to the means by which the client’s objectives are pursued.
  • C.   True.  V.R.Pr.C. 1.4(a).

A and B are not correct.  Per Rule 1.2(a), the client controls the objectives and the lawyer “as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued.”  This does not give the lawyer control over the means.  For instance, a client might not want to pay for something the lawyer suggests be done.  Nor does it give the client the absolute right to direct the lawyer to do certain things . . .  for instance, violate the rules.

Question 2

In representing a client, a lawyer _______ not use means that have no substantial purpose other than to embarrass, delay, or burden a third person.

Which is most accurate?

  • A.   This is a rule.  And the blank is “shall.”   V.R.Pr.C. 4.4(a).
  • B.   This is not a rule. It’s an aspirational comment to one of the rules. And the blank is “should.”

Question 3

A lawyer is holding funds to which both a client and third person claim interests. Their interests are in dispute.  By rule, the lawyer must:

  • A.  disburse the funds as directed by the client
  • B.   hold the funds until the dispute is resolved.  V.R.Pr.C. 1.15(e)
  • C.   withdraw from representing the client
  • D.   A or C

Question 4

If an attorney calls me with an inquiry and my response includes use of the word “imputed,” what did the attorney most likely call to discuss?

  •  A.  Reviewing an adverse party’s social media posts
  •  B.  Trust account management
  •  C.  A potential conflict of interest.   V.R.Pr.C. 1.10
  • D.  Advising a client to change the privacy settings on her social media platforms

Question 5

 Earlier this year, I blogged about Andrew Manitsky.  Not only is Andrew in a band, he’s my go-to guy when I have questions related to intellectual property and trademarks.

The 2019 American Music Awards are scheduled for November 24.  The artist who will be honored as the AMA Performer of the Decade planned to perform the songs that helped the artist earn the honor.  Songs that the artist wrote, sang, and made famous.

However, this week, the artist took to social media to allege that the label that owns the rights to the artist’s catalogue is refusing to let the artist perform the artists own songs during the ceremony and, further, has also banned the artist from using the music in an upcoming Netflix documentary about the artist’s career.  The label responded by accusing the artist of disseminating “false information.”

Regular readers will certainly know whose side I’m on!

Name the artist.

Taylor Swift in her on-going battle with Scooter Braun.  The New York Times has the latest.

Taylor Swift said that she was being blocked from performing her old songs at an awards show, as well as from using them in a Netflix documentary. In a statement, Big Machine Label Group said it was honoring her requests.

Monday Morning Answers #181

Friday’s “Glass Half Full” post is here.  Today is where the rubber hits the road: it’s Monday morning with a winter storm in the forecast.

Image result for serenity now images

Friday’s quiz questions are in the post linked above. The answers follow today’s Honor Roll.

Honor Roll

  • Karen AllenKaren Allen Law
  • Matthew AndersonPratt Vreeland Kennelly & White
  • Penny Benelli, Dakin & Benelli
  • Mimi Brill, Windham County Public Defender
  • Honorable John M. Conroy, United States Magistrate Judge, District of Vermont
  • Erin GilmoreRyan Smith & Carbine
  • Robert Grundstein
  • Anthony IarrapinoWilschek & Iarrapino
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
  • John LeddyMcNeil Leddy & Sheahan
  • Mick LeddyMcNeil Leddy & Sheahan
  • Tom LittleLittle & Cicchetti
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Jack McCullough, Project Director, Mental Health Law Project
  • Jeffrey MessinaBergeron Paradis Fitzpatrick
  • Herb Ogden, Esq.
  • Jim Runcie, Ouimette & Runcie
  • Jonathan Teller-Elsberg, Vermont Law School, JD Candidate
  • Benjamin TraverseDown Rachlin Martin
  • Zachary York, Vermont Superior Court, Chittenden Civil 

Answers

Question 1

Fill in the blank. (choices below)

By rule, a concurrent conflict of interest exists if there is ___________________ that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

  • A.   an appearance
  • B.   the potential
  • C.   even an iota of a chance
  • D.   a significant risk.   V.R.Pr.C. 1.7(a)(2).

Question 2

The Vermont Supreme Court declared November as “Access to Justice” month.  By rule, a substantial majority of a lawyer’s pro bono hours should be provided to:

  • A.   persons of limited means.
  • B.   charitable, religious, civic, community, governmental and educational organizations in matters which are designed primarily to address the needs of persons of limited means.
  • C.  A or B.  V.R.Pr.C. 6.1
  • D. None of the above.  The rule is quite vague.

Question 3

The rule that prohibits undignified or discourteous conduct that is degrading or disrupting to a tribunal _____________

  • A.   applies only in proceedings before a judge or judicial officer.
  • B.   applies to any proceeding of a tribunal, including a deposition.  V.R.Pr.C. 3.5, Comment [5]; See this post for how the rule applies when your client disrupts a deposition.
  • C.   was recently abolished by the Vermont Supreme Court in a disciplinary decision that concluded that the rule violated the First Amendment to the U.S. Constitution.
  • D.  Objection to the premise.  There is no such rule.

Question 4

Which is most accurate?

A client’s failure to abide by the terms of a fee agreement:

  • A.   is not grounds for a lawyer to move to withdraw.
  • B.   mandates that the lawyer move to withdraw.
  • C.   permits the lawyer to move to withdraw.  V.R.Pr.C. 1.16(b)(5)
  • D.  is not addressed in the rules of professional conduct.

Question 5

Not sure if you’ve heard, but whistleblowers have been in the news.

The Laundromat is a movie that dropped on Netflix a few weeks ago.  Directed by Steven Soderbergh, it stars Meryl Streep, Antonio Banderas and Gary Oldman.  Reviews are mixed. (glass half-full vs. glass half-empty!)

Anyhow, the movie is based on real-life law firm Mossack Fonseca and a whistleblower’s 2016 leak of 11.5 million confidential documents that detailed the financial information & activity of many of the firm’s wealthiest clients.  The documents tended to show that the firm specialized in creating shell corporations to help its clients hide their vast sums of money.

In April 2016, the New York Times wrote that Mossack Fonseca “was built on assurances of bulletproof privacy for its clients.”  Umm, I guess not so much.

What’s the name that’s been given to collective client documents that were breached and disclosed by the whistleblower?

The Panama Papers

Image result for the laundromat movie images

Monday Morning Answers #180

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

Honor Roll

  • Karen Allen, Esq.; Karen Allen Law
  • Evan BarquistMontroll Backus & Oettinger
  • Penny Benelli, Dakin & Benelli
  • Mimi Brill, Windham County Public Defender
  • CeCe ConradCostello, Valente & Gentry
  • Erin GilmoreRyan Smith & Carbine
  • Laura Gorsky, Esq.
  • Robert Grundstein, Esq.
  • Glenn Jarrett, Jarrett & Luitjens
  • Aileen LachsMickenberg, Dunn, Lachs & Smith
  • John LeddyMcNeil Leddy & Sheahan
  • Jordana LevineMarsicovetere & Levine
  • Tom LittleLittle & Cicchetti
  • Lon McClintockMcClintock Law Offices
  • Jack McCullough, Vermont Legal Aid, Project Director – Mental Health Law Project
  • Karen Merino, Vermont Law School, JD Candidate
  • Jeff MessinaBergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Herb Ogden, Esq.
  • Jim Runcie, Ouimette & Runcie
  • Audrey Sander, Mariscovetere & Levine
  • Jonathan Teller-Elsberg, Vermont Law School, JD Candidate
  • Jack Welch, Esq.
  • Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

Which lawyer will disciplinary counsel likely treat differently than the others?  A lawyer who:

  • A.   works for a contingent fee in a criminal case.
  • B.   fails to keep copies of his advertisements for at least two years.
  • C.   engages in “puffery” during negotiations with opposing counsel.
  • D.  deposits her own money in trust, but only in an amount necessary to cover bank charges that she knows will occur.

A is prohibited by rule.  B is not a rule.  C and D are not prohibited.

Question 2

Lawyer represents Brady in Brady v. Mayfield.  Lawyer knows that Mayfield is represented by counsel.

Lawyer answers a phone call.  It’s Mayfield.  Before Lawyer can react, Mayfield asks if Lawyer has a few minutes to discuss settlement.  Mayfield adds “i’m calling you directly because I’m trying to keep my legal bills down.  Once we resolve this, I’ll get with my attorney and have her write it up”

You may assume that Mayfield’s lawyer has not consented to Lawyer communicating directly with Mayfield.  Which is most accurate?

  • A.   Lawyer may negotiate with Mayfield.  The rule doesn’t apply when a represented party voluntarily initiates communication.
  • B.   Lawyer must immediately terminate the call.  Rule 4.2, Comment 2

Question 3

Rule 1.2(d) prohibits a lawyer from assisting a client to violate the law.  The rule draws no distinction between state and federal law.  As such, two years ago, Vermont adopted a comment to the rule.

The new comment makes it clear that Vermont lawyers can provide advice and assistance to clients as long as the lawyer (1) reasonably believes that the conduct in permitted under state law, and (2) advises the client of the potential consequences of the conduct under federal law.

The new comment is aimed at lawyers who assist clients on matters related to Vermont’s statutes, rules, and regulations on ______________.

Marijuana/Cannabis

Question 4

Firm has long represented two clients:  A and B.   For years, Client A has worked with Lawyer, while Client B has worked with Attorney.

A intends to sue B.  Both A and B want their long-time counsel to represent them and, as such, are willing to waive the conflict.

Under Vermont’s rule, if A and B consent, can Lawyer and Attorney represent their long-time clients in A vs. B.?

  • A.  No.   Rule 1.7(b).
  • B.  Yes, if each gives informed consent, confirmed in writing.
  • C.   Yes, if each gives informed consent, confirmed in writing and each is advised of the desirability of checking with outside counsel before giving consent.
  • D.  Yes, if each gives informed consent, confirmed in writing and Firm employs reasonable measures to screen A and B from access to each other’s files/client information.

Question 5

Today’s question is inspired by the lyrics posted in the window at Hen of the Wood.

This lawyer was 20 when he graduated from Columbia Law School. He had to wait until he was 21 to be admitted to the bar. Three years later, he gained national prominence for his role as an Assistant United State Attorney in the federal government’s prosecution of Ethel and Julius Rosenberg.

He parlayed that into a job as chief counsel to United States Senator Joseph McCarthy, where he joined Robert Kennedy as counsel on Senator McCarthy’s most well-known committee.

Later, after leaving McCarthy’s office, he had a long career in private practice. Among others, he represented Donald Trump’s business interests and the New York Yankees in litigation that followed the famous George Brett “Pine Tar” incident.

In 1986, the State of New York disbarred him for misappropriation of client funds, lying on his bar application, and pressuring a dying a client to change a will to leave the client’s fortune to himself (the lawyer).

People my age might have learned about him by listening to Billy Joel’s We Didn’t Start the Fire.

Name the lawyer.

Roy Cohn

Image result for roy cohn images

Monday Morning Answers #179

Welcome to Monday!

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

And, an added bonus: I ran into Honor Rollee Karen Allen at yesterday’s Heady Trotter 4 Miler in Stowe!

IMG_3178

Honor Roll

  • Karen Allen, Esq.; Karen Allen Law
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, John Marshall Law School
  • Honorable John M. Conroy, United States Magistrate Judge, District of Vermont
  • Andrew DelaneyMartin & Delaney Law Group
  • Erin GilmoreRyan Smith & Carbine
  • Laura Gorsky, Esq.
  • Robert Grundstein, Esq.
  • John LeddyMcNeil Leddy & Sheahan
  • Kevin LumpkinSheehey Furlong & Behm
  • Pam MarshMarsh & Wagner
  • Lon McClintockMcClintock Law Offices
  • Jack McCullough, Vermont Legal Aid, Project Director – Mental Health Law Project
  • Jeff MessinaBergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Herb Ogden, Esq.
  • Nancy Rogers, Chamberlin School, South Burlington 
  • Jim Runcie, Ouimette & Runcie
  • Kristen ShamisMonaghan, Safar, Ducham
  • Jonathan Teller-Elsberg, Vermont Law School, Class of 2020
  • Thomas Wilkinson, Jr., Cozen O’Connor
  • Zachary York, Vermont Superior Court, Chittenden Civil 

Answers

Question 1

In Vermont, a lawyer _____________  the representation has been rendered unreasonably difficult by the client.

  • A.   may withdraw if   V.R.Pr.C. 1.16(b)(6)
  • B.   must withdraw if
  • C.   must not withdraw unless
  • D.  I object to the premise. This never happens.

Question 2

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

  • A.  No.
  • B.   Yes, but only if the client is indigent.
  • C.   Yes, but the rule permitting it also discourages it.
  • D.   Yes, if the client gives informed consent, the payor doesn’t interfere with the lawyer-client relationship, and information relating to the representation of the client is not disclosed to the payor except as authorized by the rule on client confidences.  V.R.Pr.C 1.8(f)

Question 3

Rule 1.15(a)(1) requires a lawyer to hold property of clients or third persons separate from the lawyer’s own property.

While the word doesn’t appear in the rule, what is the word most commonly used to describe conduct that violates the rule?

Commingling

Question 4

A repeat, but in honor of Celebrate Pro Bono Week:

Lawyer is an associate at Firm. Tomorrow, Lawyer intends to provide short-term limited legal services to clients at a walk-in clinic sponsored by a nonprofit organization.  Neither Lawyer nor her walk-in clients will expect Lawyer or Firm to provide continuing representation to the clients.  By rule, which set of rules will be (somewhat) relaxed, insofar as they relate to Lawyer’s work at the walk-in clinic?   The rules on:

  • A.  Conflicts of Interest.  V.R.Pr.C. 6.5
  • B.  Malpractice Insurance
  • C.  Diligence & Competence
  • D.  Client Confidences

Question 5

Michael Brock was an anti-trust lawyer at Drake & Sweeney, a large D.C. firm.  One day, a homeless man named “Mister” entered the firm and took hostages.  A police sniper shot and killed Mister.

Bothered, Brock set out to determine what drove Mister.  His quest led him to the 14th Street Legal Clinic where he met Attorney Mordecai Green.  Eventually, Brock learned that his firm had been involved in evicting homeless people from a condemned building in the middle of winter, with a young family dying as a result.   Disturbed, Brock left the firm, taking a client file with him.

On behalf of the clinic, Mordecai Green sued the firm for its role in the evictions.  The firm countered that Brock had committed malpractice and stolen files.

The matter settled with Brock agreeing to having his license suspended, while the firm fired the partner responsible for the evictions and made its entire staff available to do pro bono work assisting the clinic to fight for the rights of the homeless.

Name the book.

THE STREET LAWYER

Image result for images of the street lawyer

Monday Morning Answers

As a Steelers fan, it didn’t surprise me to wake to the darkest, rainiest Monday in months.

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

Honor Roll

  • Karen Allen, Esq.
  • Alberto Bernabe, Professor, John Marshall Law School
  • Honorable John M. Conroy, United States Magistrate Judge, District of Vermont
  • Erin GilmoreRyan Smith & Carbine
  • Laura Gorsky, Esq.
  • Bob Grundstein, Esq.
  • John LeddyMcNeil, Leddy, & Sheahan
  • Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
  • Lon McClintock, Esq.
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Jeff MessinaBergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Herb Ogden, Esq.
  • Eric ParkerBauer Gravel & Farnham
  • Jim Runcie, Runcie & Ouimette
  • Thomas Wilkinson, Jr., Cozen O’Connor
  • Zachary York, Vermont Superior Court, Chittenden Civil 

Answers

Question 1

Lawyer called me with an inquiry. I listened, then said “per the rule, the duty kicks in when you have knowledge of a violation that raises a substantial question as to honesty, trustworthiness, or fitness.”

What duty? The duty:

  • A.  to withdraw from representing a client provided false evidence to a court.
  • B.  to self-report to disciplinary counsel.
  • C.  to report another lawyer to the appropriate professional authority.  V.R.Pr.C. 8.3
  • D.  to “go up the ladder” and report a constituent’s misconduct to a higher authority within the organization that the lawyer represents.

Question 2

Lawyer and Client agree to a fee that, on its face, is unreasonable.  Which is most accurate?

  • A. The client agreed to the fee, ergo no violation.
  • B. It’s only a violation if Lawyer actually charges the fee.
  • C. The agreement violates the applicable rule.  V.R.Pr.C. 1.5(a)
  • D. Vermont is one of two states whose rules do not address legal fees.

Question 3

If a lawyer, the lawyer’s client, or a witness has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall ____________________________.

  • A.  withdraw.
  • B.  advise the client to disclose to the tribunal, but abide by the client’s decision whether to do so.
  • C.  A and B.
  • D.  take reasonable remedial measures, including, if necessary, disclosure to the tribunal. V.R.Pr.C. 3.3(a)(3)

Question 4

When it comes to imputed conflicts of interest, which group is treated differently than the other two?

  • A. Current or former government lawyers.
  • B. Lawyers who, under the auspices of programs sponsored by a nonprofit or court, provides short-term legal services without expectation by lawyer or client of continuing representation.
  • C.  Lawyers who change firms and who, while at their old firm, participated personally and substantially in a matter in which their new firm represents a client whose interests are materially adverse to the interests of the client represented by the old firm.
  • D.  They’re all treated the same.

Poorly phrased question and choices.  The lawyers described in C cannot be screened.  Rather, per Rule 1.10(a)(2) , the new firm is disqualified. The key is the “personal and substantial participation” in the matter at the old firm.  As for “A,”  we do not impute all conflicts when lawyers move to and from government practice.  Also, per Rule 6.5, we do not impute all conflicts following participation in legal clinics of the type described in “B.”

Question 5

  1. If you noticed today’s opening lyrics, the verse is about high school football
  2. Rule 8.4(b) prohibits lawyers from engaging in conduct that involves a serious crime

Question: yesterday, a real-life lawyer was sentenced to 1 month in prison for his role in a college admissions scandal (one that also ensared Aunt Becky of Full House fame).  The code name for the FBI’s investigation into the scandal is also the name of a movie about high school football.

Name the movie/code name of the scandal.

Varsity Blues.  The ABA Journal reported the lawyer’s prison sentence here.

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Monday Morning Answers #175

Welcome back to another work week. Wherever you are, I hope your Monday weather is as fantastic as it is here at headquarters.

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

Most importantly: you have spoken.  On the issue of expirations dates, here are the results from Friday’s poll:

When it comes to expiration dates on food:

  • 63.3% – I’m like J&J. Expiration dates arrive well before the food goes bad. No mold or odor? It’s fine! 
  • 20% – I’m like Mike & Taylor.  Never, ever after the expiration date.
  • 16.7% – One or two days past is ok, but that’s the max.”

As always, thanks to all who reached out with more specific responses.  I loved every one of them!

Have a great day!

Honor Roll

  • Karen Allen, Esq.
  • Matt AndersonPratt Vreeland Kennelly Martin & White
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, John Marshall Law School
  • Jennifer Emens-Butler, Director of Education & Communication, VBA
  • Erin GilmoreRyan Smith & Carbine
  • Laura Gorsky, Esq.
  • Bob Grundstein, Esq.
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy, JB Kennedy Associates, Blogger’s Mom
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Kevin LumpkinSheehey Furlong & Behm
  • Lon McClintock, Esq.
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Hal Miller, First American
  • Herb Ogden, Esq.
  • Robyn SweetCORE Registered Paralegal, Cleary Shahi  & Aicher
  • Jonathan Teller-Elsberg, Vermont Law School, Class of 2020
  • Jason Warfield, Vermont Law School, Class of 2020

Answers

 

Question 1

Which is most accurate?  By rule, a lawyer shall ___________:

  • A.  reasonably consult with the client about the means by which the client’s objectives are to be accomplished.  
  • B.  abide by the client’s direction as to the means by which the client’s objectives are to be accomplished.
  • C.  B, unless to do so would violate the Rules of Professional Conduct.
  • D.  None of the above.  The rules require a lawyer to abide by the client’s objectives but are silent as to the means by which those objectives are accomplished.

This is the exact language from Rule 1.4(a)(2), the rule that outlines the scope of a lawyer’s duty to communicate with a client.  Per Rule 1.2(a), a client owns the objectives.

Question 2

By rule, when representing a client, a lawyer shall not communicate with a person who is represented by another lawyer absent the consent of the other lawyer.

True or False: the rule only applies if the represented person’s interests are adverse to the interests of the lawyer’s client.

FALSE.  Rule 4.2 applies whenever a person is represented.

Question 3

Lawyer called me with an inquiry.  I listened then said “there are 3 exceptions to the rule.  The first is if the testimony relates to an uncontested issue.  The second is if the testimony relates to the nature and value of legal services rendered in the case.”

Given my response, the testimony of who?

  • A.   an expert witness
  • B.   Lawyer’s former client, and former client is adverse to Lawyer’s current client
  • C.   a lawyer
  • D.  Lawyer’s client, and Lawyer’s client suffers from a diminished capacity.

This is Rule 3.7, Lawyer as Witness.

Question 4

By rule, Disciplinary Counsel and the Supreme Court are authorized to conduct & order, respectively, compliance reviews & audits of a lawyer or law firm’s:

  • A.  financial records
  • B.  financial records, including trust accounts
  • C.  financial records, including trust & fiduciary accounts
  • D.  C, but only upon receipt of information sufficient to establish that there is probable cause for the compliance review or audit.

The authority to conduct & order compliance reviews & audits of a lawyer or law firm’s financial records, including trust and fiduciary accounts appears in Rules 1.15A(b) and 1.15A(c).

Question 5

Privileges, confidences, conflicts.

In real-life, Paul Giamatti’s father, Bart, served as Commissioner of Major League Baseball.  There, Bart effectively disbarred Pete Rose by banning him from the sport.

On television, Paul Giamatti plays Chuck Rhoades, United States Attorney for the Southern District of New York.  Initially, the show focuses on Rhoades’ fixation with building a criminal case against Bobby Axelrod, an incredibly wealthy hedge fund trader who owes much of his fortune to gains made as a result of the 9/11 terrorist attacks.  A complicating factor?  Rhoades’ wife, Wendy, is a psychiatrist who works as a “performance coach” at Axe Capital, the hedge fund owned by Axelrod.

Central to the show’s plot are Wendy’s relationships with Rhoades and Axelrod, and the issues related to privileges, confidences, and conflicts that arise as a result.

Name the show.

BILLIONS

Image result for billions

Monday Morning Answers – The Fair

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

Honor Roll

  • Laura Gorsky, Esq.
  • Bob Grundstein, Esq.
  • Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
  • Jonathan Teller-Elsberg, Vermont Law School, Class of 2020,
  • Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

Which belongs somewhere else than with the others?

A lawyer shall:

  • A.   keep the client reasonably informed about the status of the matter.
  • B.   explain the matter to the extent reasonably necessary to permit the client to make informed decisions.
  • C.  in an ex parte proceeding, inform the court of all material facts known to the lawyer which will enable the court to make an informed decision
  • D.   Trick question. All 3 are in separate rules.

C is in Rule 3.3(d), and is an aspect of the larger duty of candor to a court.  A & B are parts of Rule 1.4 and the duty to communicate with a client.

Question 2

True or false.

There’s a rule that specifically requires a lawyer to make reasonable efforts to expedite litigation, consistent with the interests of the client.

TRUE – Rule 3.2

Question 3

By rule, a lawyer shall not act as an advocate in a trial in which:

  • A.  the lawyer is likely to be a “necessary witness”
  • B.  another lawyer in the lawyer’s firm is a party
  • C.  another lawyer in the lawyer’s firm is a witness
  • D.  All of the above.

This is the language from Rule 3.7 and disqualifies the lawyer who is likely to be a necessary witness from acting as an advocate at trial.  The situations in B & C are not absolute bans, but only DQ the lawyer if the relationships otherwise create a conflict.

Question 4

A client’s failure to abide by the terms of a fee agreement:

  • A.   is not grounds for a lawyer to move to withdraw
  • B.   mandates that the lawyer move to withdraw
  • C.   permits the lawyer to move to withdraw.  Rule 1.16(b)(5); See also Comment [8]
  • D.  is not covered by the rules of professional conduct

Question 5

Inspired by a recent text from one of the first people ever to follow this blog.

Bob Loblaw is the Bluth family lawyer on Arrested Development.  His advertising slogan is “You don’t need double talk, you need Bob Loblaw!”  Also, as do all great lawyers, he blogs.  His blog is the “Bob Loblaw Law Blog.”  The Bluth family hired Bob to replace the incompetent Barry Zuckerkorn.

In real life, the actors who play Loblaw and Zuckerkorn also played characters in a sitcom that debuted 30 years before Arrested Development.

Name the sitcom.

First, if you didn’t pick up on the joke, Bob Loblaw is named as such in order to sound like “blah blah blah.”  His blog is “blah, blah, blah, blah, blah.” 

Scott Baio plays Loblaw and Henry Winkler plays Zuckerkorn.   An eternity ago, the two played Chachi & Arthur Fonzarelli (Fonzie) in Happy Days.

See the source image

Monday Morning Answers #174

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

This week, I’m giving extra credit to Jack McCullough.  Jack sent me an email in which he expertly tied Question 5 to one of my favorite topics: basketball.

As you’ll see, the answer to Question 5 is John Adams and the Boston Massacre.  Jack pointed out that Crispus Attucks, one of the victims of the massacre, was the first American killed during the Revolution.  Jack added that Oscar Robertson, arguably the greatest basketball player in history, graduated from Crispus Attucks High School in Indianapolis.  Hollywood hasn’t made a move about The Big O and his high school teammates, but the story of their championship season is as compelling as any in the history of the Hoosier state.

Image result for oscar robertson

Honor Roll

  • Karen Allen
  • Matt AndersonPratt Vreeland Kennelly Martin & White
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, John Marshall Law School
  • Honorable John M. Conroy, United States Magistrate Judge, District of Vermont
  • Bob Grundstein, Esq.
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • John LeddyMcNeil, Leddy, & Sheahan
  • Deb Kirchwey, Esq.
  • Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
  • Aileen LachsMickenberg, Dunn, Lachs & Smith
  • Kevin LumpkinSheehey Furlong & Behm
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Jeff MessinaBergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Jim Runcie, Runcie & Ouimette
  • Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

A comment to one of the rules says:

“Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statement of material fact.”

The quoted language appears in a comment to the rule that requires:

  • A.  Competent representation.
  • B.  Diligent representation.
  • C.  Fairness to opposing counsel & parties.
  • DTruthfulness in statements to others.  V.R.Pr.C. 4.1.  I’ve written on “puffery” and the ethics of settlement negotiations here and here.

Question 2

Which set of rules are relaxed for (1) lawyers who move between private practice and government practice; and (2) lawyers who provide short-term legal services under the auspices of a program sponsored by a court or non-profit, and without expectation by the lawyer or client of continuing representation?

The rules on conflicts of interests.  With respect to lawyers who move between government and private practice, Vermont doesn’t impute all conflicts and allows screening.  With respect to relaxed conflicts rules & pro bono work, see Rule 6.5.

Question 3

Lawyer is holding funds in trust.  There is a legitimate dispute between Lawyer’s client and a third person as to who is entitled to a portion of the funds.  Entitlement to the remainder is not in dispute.

True or false:  Lawyer must promptly distribute all portions that are not in dispute, even before the dispute as to a particular portion is resolved.

True.  V.R.Pr.C. 1.15(e).

Question 4

I’ve asked this question before, but I’m asking it again because I’ve received multiple inquiries about the rule over the past few weeks.

The rule on trial publicity applies:

  • A.  to any lawyer who is participating in or has participated in the investigation or litigation of a matter.  V.R.Pr.C. 3.6(a).
  • B.  only to a lawyer who is participating in or has participated in the investigation of a criminal matter.
  • C.  only to prosecutors in a criminal case.
  • D.  None of the above.  There is no rule on trial publicity.

Question 5

Speaking of the Revolutionary War and the duty of competent representation, here’s a two-part question.

In an argument made during a jury trial that took place in 1770, a criminal defense attorney said:

  • “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence . . . It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished. But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, ‘whether I do good or whether I do evil is immaterial, for innocence itself is no protection,’ and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.”

Name the lawyer and the event that resulted in the lawyer’s clients being charged.

John Adams defended the British soldiers charged in connection with the Boston Massacre.

 

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