Monday Morning Answers

Monday Morning Answers: #123

Michael Leave a comment

Welcome to Monday!

If you’re reading this, your WiFi didn’t melt!  Small victories are still victories!

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

Honor Roll

Answers

Question 1

The phrase “in the same or a substantially related matter” is most often used in connection with a rule on:

  • A.  conflicts.  See, Rule 1.9(a).
  • B.  advertising
  • C.  trust accounting
  • D.  sharing fees with a lawyer in another firm

Question 2

Which doesn’t belong with the others?

  • A.  Don’t state or imply that you’re disinterested
  • B.  Don’t contact her unless the clerk has certified that her term is complete
  • C.  If she misunderstands your role, correct the misunderstanding.
  • D.  If her interests are likely to conflict with your client’s, don’t give her any legal advice other than the advice to secure counsel.

B is part of Rule 3.5 and refers to contacting jurors.  A, B, & D are part of Rule 4.3, the rule that applies when a lawyer deals with an unrepresented person.  

Question 3

Client sued Lawyer for malpractice.  Lawyer offered to settle the claim.  The offer included (1) a monetary payment to Client; and (2) an agreement not to handle any cases of the type Lawyer handled for Client.

True or False.

The settlement offer violates the Rules of Professional Conduct.

True: see, Rule 5.6(b).

Question 4

Yesterday, Lawyer received a letter indicating that Disciplinary Counsel had selected Lawyer for a “compliance exam.”   Compliance with what?

  • A.   the CLE requirements
  • B.   the trust accounting rules.  See, Rule 1.15A(b)
  • C.  the rule on malpractice insurance
  • D.  the rule that requires reasonable precautions against unauthorized access to electronically stored information

Question 5

Speaking of lawyers and soccer, who doesn’t belong with the others?

  • A. Vincent Gambini
  • B.  Jerry Callo
  • C.  Jerry Gallo
  • D.  Cristiano Ronaldo

Ronaldo is one of the best soccer players in the world.  He’s the star of the Portuguese national team.  On Saturday, Portugal lost to Uruguay in the round of 16 in the World Cup.  The other 3 – Gambini, Callo, and Gallo – are characters or people mentioned in My Cousin Vinny.    

You know, Jerry Gallo, the big attorney.

“Jerry Gallo’s dead!”

Kudos to Penny Benelli for getting the “most” correct answer!

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Monday Morning Answers #121

Michael Leave a comment

Welcome to Monday! Looks like summer turned on the heat!

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

Image may contain: 2 people, including Norman Lemieux, people smiling, outdoor

Honor Roll

  • Karen Allen, Esq.
  • Matthew Anderson, Pratt Vreeland Kennelly & White
  • Leslie Black, Black & Govoni
  • Rich Cassidy, Esq.
  • Robert Grundstein, Esq.
  • Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
  • Mark Kennedy, Dad
  • Scott Mapes, Esq.
  • Johsua Martin, Green Mountain Legal
  • Lon McClintock, McClintock Law Offices
  • Jeff Messina, Bergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Jody Racht, Assistant Attorney General, VT. Department of Children & Families
  • Allison Wannop, Law Clerk, Vermont Superior Court
  • Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

It’s likely a violation of the rules for a lawyer to:

  • A.  use an electronic trust accounting system
  • B.  self-represent in a divorce
  • C. condition settlement of a malpractice claim on a former client’s agreement not to file a disciplinary complaint against the lawyer.
  • D.  while representing a client who is adverse to a represented organization, communicate with former employees of the organization without the consent of the organization’s lawyer.

For more, see my post Disciplinary Complaints: File & Let File

Question 2

True or False.

The rule on trial publicity only applies in criminal cases.

FALSE.  Rule 3.6 applies to any lawyer who “is participating or has participated in the investigation or litigation of a matter.”

Question 3

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

“The rule authorizes deposits that are for the sole purpose of paying service charges or fees, but only in an amount necessary to pay those charges and fees.”

What specific issue did Lawyer call to discuss?

The trust account rules. Specifically, Rule 1.15(b) and depositing the lawyer’s own funds into trust.

Question 4

Which is most accurate?

A frivolous discovery request is a violation of the Rules of Professional Conduct.

  • A.  True.  See, Rule 3.4(d)
  • B.  False. The trial courts have exclusive jurisdiction over discovery issues.
  • C.  Only if the lawyer is given a reasonable opportunity to withdraw the request and chooses not to.
  • D.  Generally true, but it’s not a violation if the client, upon being advised by the lawyer that the request is frivolous, insists that the lawyer make the request.

Question 5

There’s a lawyer who has been in the news an awful lot lately.  Recently, the intense media coverage of the lawyer and his famous client resulted in reports about the lawyer’s firm’s bankruptcy proceeding.  Per a headline in the Los Angeles Times, the lawyer “tested legal boundaries as his firm maneuvered into bankruptcy.”

  • Name the lawyer
  • Name the famous client who has made the lawyer the subject of intense media coverage over the past several months

Michael Avenatti.   Stephanie A. Clifford (aka “Stormy Daniels”)

The Los Angeles Time piece on Avenatti’s bankruptcy is here.

Image result for avenatti daniels

Monday Morning Answers #120

Michael 1 Comment

Good morning! Welcome to Monday!

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

Honor Roll

Answers

Questions 1

Two things are missing from this list.  What are they?

  • free speech
  • free exercise of religion
  • right to petition the government for the redress of grievances
  • no establishment of religion

The language is from the First Amendment.  The missing items are:  freedom of the press, and right to peaceably assemble.

Question 2

Which came first?

  • A.  Voting age lowered to 18 (1971)
  • B.  Prohibition repealed (1933)
  • C.  Women given the right to vote – 1920

Question 3

In October, the VBA’s Pro Bono Conference will include a “TED-Talk” on due process & municipal boards.  The phrase “due process” appears in two amendments.  Which two?

  • A.   1st and 5th
  • B.   5th and  8th
  • C.   5th and 14th
  • D.   8th and 14th

Question 4

Delaware was the 1st state to ratify the Constitution.  Very recently, and in response to a U.S. Supreme Court decision that involves states’ rights, Delaware became the 2nd state to allow what?

Commerical Sports Betting.  The decision was Murphy v. NCAA.  The New York Times covered it here.  The over/under “correct answers” for this question was “67% of respondents.”  It went over.

Question 5 & Bonus

Thaddeus Stevens was born in Vermont.  He practiced law in Pennsylvania and, eventually, was elected to the U.S. House of Representatives.  In Congress, Stevens played a critical role in the drafting & passage of what has been called both a “mini-Constitution” and the Constitution’s most important amendment.

Which amendment? And, who played Stevens in the movie Lincoln?

The 14th Amendment.  Last year, the ABA Journal posted: The 14th. A Civil War era amendment has become a mini-constitution for modern times.  For a bit on Stevens’ involvement, see this morning’s postthis morning’s post from Lancaster Online.

Tommy Lee Jones

Image result for images of thaddeus stevens

Monday Morning Answers: #119

Michael Leave a comment

Welcome to Monday!

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

Honor Roll

Answers

Question 1

Lawyer used to represent Client.   Per the Rules of Professional Conduct, which situation is different from the others?

  • A.  Client files disciplinary complaint against Lawyer.
  • B.  Client sues Lawyer for malpractice.
  • C.  Client posts negative online review about Lawyer.
  • D.  Client files petition for post-conviction relief alleging that Lawyer failed to provide effective assistance of counsel.

Rule 1.6(c)(3) permits but does not require lawyers to disclose otherwise confidential information “to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client . . . [or] to respond to allegations in any proceeding concerning the lawyer’s representation of the client.” Per Comment [12], the rule can “arise in a civil, criminal, disciplinary, or other proceeding.”

A, B, and D are “controversies” or “proceedings” that trigger the rule. At the end of this post you’ll see a digest of cases & opinions that make clear that a negative online review is not a “controversy” or “proceeding” for the purposes of the rule.  

Caveat: any disclosure made pursuant to the rule should be limited to respond only to the specific controversy or allegation, and, if made in court, should include reasonable efforts to limit access to the information to people who need to know. Comment [14].

Finally, as noted by ABA Formal Opinion 10-456, a criminal defense lawyer should raise, or give the former client an opportunity to raise, all non-frivolous arguments against waiving the attorney-client privilege.

Question 2

Lawyer called me with an inquiry. I listened, then replied:  “I disagree. I wouldn’t call without permission. The rule applies to ‘matters’  Litigation doesn’t have to be pending for there to be a ‘matter.’ ”

What rule? (the topic of the rule is fine)

Communicating with a represented person.  See, Rule 4.2.

Question 3

Per the rule, 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).  Comment [7] suggests that a non-relative cannot waive the protection of this rule.
  • B.     The client gives informed consent
  • C.     The client gives informed consent, confirmed in writing
  • D.    The client is given a reasonable opportunity to seek independent legal advice

Question 4

If you go to one of my seminars and hear me babbling about stuff that’s “onsite, online, and air-gap,” it’s most likely that I’m talking about:

  • A.  Trust accounting software
  • B.  The duty to safeguard electronically stored client information.  See: Ransomware & Cybersecurity Insurance
  • C.  Software that assists with conflict checks
  • D.  The duty of competence insofar as it relates to online legal research

Question 5

Speaking of frivolous claims . . .

Lionel Hutz is a fictional lawyer.  On behalf of a client, he sued The Frying Dutchman restaurant over its “All You Can Eat” offer.  Hutz referred to the offer as “the most blatant case of fraudulent advertising since my suit against the film The Never Ending Story.”

In another episode, the same client retains Hutz as a result of Hutz’s slogan “Cases won in 30 minutes or your pizza is free.”  Thinking he lost the case, Hutz gave the client and the client’s family a box of pizza.  The client’s wife pointed out that they won the case. Hutz responded that the pizza box was empty anyway.

How’d Hutz get a law license? I don’t know. But I do know that he claimed “I’ve attended Harvard, Yale, MIT, Oxford, the Sorbonne, and the Louvre.”

You might know the actor who voiced Hutz better for his roles on Saturday Night Liveand NewsRadio.

Name the client.

Homer Simpson

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Monday Morning Answers #116

Michael Leave a comment

Welcome to Monday!  Friday’s questions and my Derby picks are here.

My pick to win, Mendelssohn, finished last.  That’s not ideal.  In real life, I boxed Audible and Good Magic. So, the final few furlongs were exciting. Alas, horse racing isn’t horse shoes or hand grenades.

In better bettor news, Liz Kruska correctly predicted Justify would win!

The answers follow today’s Honor Roll.

Honor Roll

(hyperlinks to bios where available)

Answers

Question 1

Lawyer called me with an inquiry. I listened, then replied: “the rule applies if you’re holding them in connection with a representation.”

Holding what?

  • A.   Client Confidences
  • B.   Funds or other property.  See Rules 1.15 and 1.15A.
  • C.   Evidence of a client’s crime
  • D.  Potentially exculpatory evidence

Question 2

Which involves a different set of the Rules of Professional Conduct than the others?

  • A.  ACH transfers
  • B.  Lateral transfers
  • C.  Transfers from private practice to work as a government attorney
  • D. Transfers from being a law clerk to working in a private practice

An ACH Transfer is a financial transaction. The other types of transfers involve the conflict issues that arise when lawyers change jobs.

Question 3

“A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.”

  • A.  Is a rule.  It’s Rule 3.2.
  • B.  Is not a rule, but, per case law, is an aspect of the duty of competence
  • C.  Is not a rule, but, per case law, is an aspect of the duty of diligence
  • D.  B & C

Question 4

Attorney called me with an inquiry.  I listened, then replied, “before you disclose, the first step is to refer it up the ladder to a higher authority and, if warranted by the circumstances, to the highest authority that can act.”

Given my response, it’s most likely that Attorney represents:

  • A.  an organization.  Rule 1.13
  • B. a lawyer who discovered that a client used th lawyer’s service to commit a fraud on the court
  • C.  a firm’s partner whose associate has a health condition that adversely impacts the associate’s fitness to practice law
  • D.  the defendant in a criminal case

Question 5

John Tweedy was a lawyer. He graduated from Columbia Law School.  While there, he met a woman named Penny Chenery.  Penny was a student at Columbia Business School. The two eventually married.

To call Penny “competent” would be a gross understatement.  Penny is one of the most succesful horse breeders in U.S. history.  She bred and raced the horse that many consider the greatest of all-time.  The horse holds the record for the fastest time in The Kentucky Derby.

The horse was born in 1970.  Penny’s father had “won” the horse by losing a coin toss.  That is, in 1969, Penny’s father and another breeder agreed to flip a coin to determine who would receive the first choice of the next two foals to be sired by Bold Ruler, the 1957 Horse of the Year.

Penny’s father lost the coin toss.  The winner chose a horse named The Bride, who you likely have never heard of.  Penny’s father was left with a horse who I’m quite certain you’ve heard of.

Name the horse that Penny’s father won by losing a coin toss.

Secretariat

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Monday Morning Answers #115

Michael Leave a comment

Friday’s column about a kid from Barre is here.  The answers to the #fiveforfriday legal ethics quiz follow today’s honor roll.

Honor Roll

(hyperlinks when available.  lack of a link doesn’t reflect a lesser score or lower honors)

Answers

Question 1

Paralegal works for Firm.  Client asks Firm to represent Client in the matter Client v. Other.  

Paralegal has a relationship with Other that would preclude Paralegal from representing Client if Paralegal was a lawyer.

True or False? Under Vermont’s rules, Paralegal’s conflict is imputed to Firm and Firm cannot represent Client.

FALSE.  See, V.R.Pr.C. 1.10, Comment [4].  Although, Paralegal “ordinarily must be screened from any personal participation in the matter” of Client v. Other.

Question 2

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

  • don’t state or imply that you’re disinterested;
  • do correct any misunderstanding about your role; and,
  • if the person’s interests conflict with your client’s, don’t give any legal advice other than the advice to seek counsel.

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

  • A.  Candor to a Tribunal
  • B.  Communicating ex parte with a judge.
  • C.  Trial Publicity
  • D.  Dealing with an unrepresented person.  V.R.Pr.C. 4.3

Question 3

Attorney called with an inquiry. I listened, then said: “well, it’ll likely depend on whether you received information from Person that could be significantly harmful to Person.”

In this context, it’s most likely that Person is:

  • A.  A former client of Attorney’s
  • B.  A current client of Attorney’s
  • C.  A juror
  • D.  Someone who met with Attorney to discuss forming an attorney-client relationship, but who never formed such a relationship with Attorney.  See, V.R.Pr.C. 1.18. My comment comes straight from Rule 1.18(c).

Question 4

A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients.

  • A.   True.
  • B.   True, unless each client gives informed consent in a writing signed by the client.  V.R.Pr.C. 1.8(g).
  • C.   True, but only in civil cases.  The rules prohibit joint representation of criminal defendants.
  • D.   The rules are silent on this issue.

Question 5

The unauthorized practice of law is contempt of court and, if done by a lawyer, is a violation of Rule 5.5.  And, as long time readers know, I’m a big fan of Rule 1.1 and the duty to provide clients with competent representation.

So, speaking of Italy, UPL, and competent representation . . .

. . . Portia was not a lawyer.  However, dressed as a man, she pretended to be one and successfully kept Antonio from having to give a pound of flesh to Shylock.

Name the literary work.

The Merchant of Venice, William Shakespeare