Monday Morning Answers

Welcome to Monday!

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

Honor Roll


Question 1

When a lawyer holds funds in which two or more persons claim interests, a rule specifically requires the lawyer:

  • A.   to resolve the dispute;
  • B.   to keep the funds separate until the dispute is resolved;
  • C.   to promptly distribute all portions that are not in dispute;
  • D.   B & C.  V.R.Pr.C. 1.15(e)

Question 2

Speaking of Watergate, if you’re at a CLE and hear me talking about a lawyer’s duty “to go up the ladder,” I’m most likely talking about a lawyer who represents:

  • A.  an organizationSee, Rule 1.13(b)
  • B.  both the insured and an insurance company in a civil case.
  • C.  a child.
  • D.  a client whose deadline to appeal is about to run, but who has not instructed the lawyer whether to file the appeal.

Question 3

Consider the following:

  • a reasonable belief that the lawyer will be able to provide competent & diligent representation to each affected client;
  • no assertion of a claim by one client against another represented by the same lawyer;
  • informed consent, confirmed in writing.

By rule, each of the 3 is relevant to what general question?

Each of 3 appears in Rule 1.7(b) and are relevant to whether a lawyer may represent a client notwithstanding a concurrent conflict of interest. 

Question 4

Is there a rule that specifcially addresses a lawyer’s ethical duties when serving as an arbitrator, mediator, or in any other such capacity to assist two or more persons who are not clients to resolve a dispute?

  • A.   No.
  • B.   No.  The Code of Judicial Conduct applies.
  • C.   Yes.  There’s a rule that applies to so-called “third-party neutrals.”
  • D.   Yes.  There’s a rule that applies to so-called “third-party neutrals” and a comment to the rule indicates that lawyers serving as such may also be subject to other codes of ethics.

It’s Rule 2.4.  Comment [2] mentions other codes of ethics. 

Question 5

I’ve often spoken on lawyer’s duty to provide competent advice related to a client’s preservation of electronically stored information that might have potential evidentiary value.

Recently, one of the world’s most famous athletes was named as a defendant in a wrongful death suit.  The athlete owns a restaurant that is also a defendant.  Central to the case is an allegation that the restaurant over-served an employee who drank at the bar after his shift, drove, and died in a car accident after leaving.

This week, the plaintiff’s lawyers accused the restaurant of destroying video of the decedent drinking at the bar in the hours prior to the fatal crash.

Who is the athlete?

Tiger Woods.    Yahoo! Sports has the story here.

Image result for images of tiger woods

Monday Morning Answers #163

Welcome to Monday!

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

Honor Roll

  • Karen Allen, Esq.
  • Alberto Bernabe, Professor, John Marshall Law School
  • CeCe ConradCostello, Valente & Gentry
  • Erin GilmoreRyan Smith & Carbine
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • John LeddyMcNeil, Leddy, & Sheahan
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Kevin LumpkinSheehey Furlong & Behm
  • Lon McClintockMcClintock Law Offices
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Hal Miller, First American
  • Herb Ogden, Esq.
  • Eric ParkerBauer Gravel & Farnham
  • Jim Runcie, Ouimette & Runcie
  • Carie TarteSenior Paralegal, Maley & Maley


Question 1

By rule, a lawyer shall not make a false or misleading communication about the lawyer or the lawyer services.   Which of the following violate(s) the rule?

  • A.  Material misrepresentations of fact or law.
  • B.  Communications that omit a fact necessary to make the statement, considered as a whole, not materially misleading.
  • C.  Both A & B.   V.R.Pr.C. 7.1
  • D.  Trick question.  There is no such rule.

Question 2

You’re at a CLE.  You hear me say:

  • “The privilege is different from the rule.  The rule talks about ‘information relating to the representation.’ A comment to the rule makes it clear that this encompasses more information than is covered by the privilege.”

What was I talking about?  The rule on:

  • A. Client confidences.  V.R.Pr.C. 1.6 Comment 3
  • B.  A lawyer’s duties upon the receipt of inadvertently produced information.
  • C.  Former Clients.
  • D.  Prospective Clients.

Question 3

Consider the following:

  1. instruments drawn on banks;
  2. checks drawn on an IOLTA of a licensed Vermont lawyer or on the IORTA of a licensed Vermont real estate broker;
  3. checks issued by the United States or the State of Vermont;
  4. personal checks, not to exceed $1,000 in the aggregate per transaction; and,
  5. checks drawn on or issued by insurance companies, title insurance companies, or title insurance agencies that are listed in Vermont.

They are:

  • A. signs of a potential trust account scam.
  • B.  instruments that MUST NOT be deposited into an IOLTA
  • C.  instruments that MUST NOT be deposited into an operating account.
  • D.  instruments that a lawyer may presume to constitute “collected funds” upon deposit.  V.R.Pr.C. 1.15(g) and this blog post from last week

Question 4

There’s a rule that prohibits extrajudicial statements that will have a substantial likelihood of materially prejudicing an adjudicative proceeding.   Which is most accurate?

  • A.  It applies only to the prosecutor in a criminal case.
  • B.  It applies to “any lawyer participating in a criminal case.”
  • C.  There are no exceptions to the general prohibition.
  • D.  It applies to any “lawyer who is participating or has participated in the investigation or litigation of a matter,” whether criminal or not.  V.R.Pr.C. 3.6

Question 5

I’m the chair of the VBA’s Pro Bono Committee.  Also, this evening, I’m speaking at the Vermont Bar Foundation’s Justice Fest.

Cheslie Kryst is an attorney at a firm in North Carolina.  Over the past few years, she provided a significant amount of pro bono work to inmates seeking shorter sentences.  Yes!

Last week, Attorney Kryst made national news.   Why?

  • A. She was crowned Miss USA.  Stories from the ABA Journal and CNN
  • B. She appeared in an episode of Game of  Thrones.
  • C. She became engaged to one of her pro bono clients whose sentence was commuted as a result of her work.
  • D.  She defeated James Holzhauer on Jeopardy, ending his stunning reign as champion.

Image result for cheslie kryst

Monday Morning Answers #161

Welcome to Monday!

Friday’s questions are here.  Yes, I completed the Indy Mega Mini Challenge and I “kissed the bricks.”  Today’s answers follow the Honor Roll.


Honor Roll


Question 1

True or false.

Whenever a subordinate lawyer acts at the direction of a supervisor, the subordinate is relieved of responsibility for a violation of the rules.

FALSE.  Rule 5.2 sets out the duties of a subordinate lawyer.  A subordinate lawyer is relieved of responsibility only if the associate acts in accordance with a supervisor’s reasonable resolution of an arguable professional duty.

Question 2

If revealed in a compliance or trust account audit, which is most likely to concern disciplinary counsel?

  • A.  records showing that the lawyer has regularly deposited the lawyer’s own funds into the account to cover service charges and fees, albeit only in amounts necessary to pay those charges and fees.
  • B.  records documenting that the lawyer has reconciled the account on a quarterly basis.
  • C.  They’ll be dealt with the same, both are violations.
  • D.  They’ll be dealt with the same, neither is a violation.

Option A will not concern disciplinary counsel.  Rule 1.15(b) authorizes the conduct.  However, Rule 1.15A(a)(4) requires reconciliation to be no less than monthly.  So, quarterly reconciliation will draw disciplinary counsel’s attention.

Question 3

Which type of conflict is not imputed to other lawyers in the same firm?

  • A.  a conflict that arises under Rule 1.7.
  • B.  a conflict that arises under Rule 1.9.
  • C.  a conflict that arises under 1.7 or 1.9, as long as the conflict is based on a personal interest of the lawyer and does not present a significant risk of materially limiting the representation of the client by the other lawyers in the firm.  V.R.Pr.C. 1.10
  • D.  Trick question.  Vermont imputes all conflicts.

Question 4

Which is found in a different rule than the others?  A lawyer shall:

  • A.   as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
  • B.   keep the client reasonably informed about the status of a matter.
  • C.   promptly comply with reasonable requests for information.
  • D.   consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct.

The language in A is the duty owed to a client who suffers from a diminished capacity. It is in Rule 1.14.  The other options all appear in Rule 1.4, the rule that describes the duty to communicate with a client.

Question 5

I’m going to Indiana this weekend.  I’m also a former high school basketball coach.

Jury tampering is unethical.  In every state.

Name the actor or actress who starred:

  • as a high school basketball coach in a movie set in Indiana; and,
  • as a consultant who specialized in tampering with juries in a movie that put the firearms industry on trial.

Gene Hackman was Coach Norman Dale in Hoosiers and jury consultant Rankin Fitch in Runaway Jury.

Image result for images of gene hackman hoosiers


Monday Morning Answers #160

Welcome to Monday!

Friday’s questions are here.  The answers follow today’s Honor Roll.  More importantly, readers have spoken.  The most popular choice to rule Westeros when Game of Thrones ends?

Sansa Stark.

Honor Roll


Question 1

Limited representations can be a tool to increase access to legal services.  Per the Vermont Rules of Professional Conduct, a lawyer may:

  • A.   not limit the scope of the representation.
  • B.   limit the scope of the representation but may not bill for the limited services.
  • C.   limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.  V.R.Pr.C. 1.2(c)
  • D.  B & C

Question 2

Rule 4.2 prohibits communication with a represented person on the subject of the representation unless the other lawyer consents or the communication is authorized by law.  When it comes to a represented organization, the rule applies to a constituent of the organization:

  • A.  who supervises, directs, or regularly consults with the organization’s lawyer concerning the matter.
  • B.  who has the authority to obligate the organization with respect to the matter.
  • C.  whose act or omission with respect to the matter may be imputed to the organization for the purposes of civil or criminal liability.
  • D.  All of the above.  V.R.Pr.C. 4.2, Comment [7]

Question 3

True or false.

There is an absolute prohibition on advertisements that truthfully report a lawyer’s achievements on behalf of clients.

FALSE. Per V.R.Pr.C. 7.1communications about a lawyer’s services cannot be misleading.  According to Comment [2], truthful statements about prior results “may be misleading if presented so as to lead to a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without references to specific factual and legal circumstances of each client’s case.”

Question 4

Which do the rules treat differently than the others?

  • A.  a client’s personal check in the amount of $1,499
  • B.  a check drawn on another lawyer’s IOLTA account.
  • C.  a check drawn on an IORTA account of a Vermont licensed real estate broker
  • D.  a check issued by an insurance company licensed to do business in Vermont

As a rule, a lawyer may not disburse funds from trust unless the funds are “collected funds.”  V.R.Pr.C. 1.15(f)There are exceptions to the general rule.  And choices, B, C, and D are among the exceptions listed in Rule 1.15(g), the rule that allows lawyers to disburse in reliance upon certain types of deposits.  To disburse in reliance upon the deposit of a client’s personal check, the check cannot exceed $1,000.  Thus, “A” is treated differently than the others.

Question 5

Not ABBA, but a few years earlier . . .

Immigration and cannabis seem to be in the news a lot.

Many years ago, a couple had come to the US to search for the woman’s child.  The child had been abducted by the woman’s former husband.  The man who came with her was a musician and had previously been convicted in the United Kingdom of possession of cannabis resin.

For various reasons, President Nixon ordered the Justice Department to deport the couple. Thanks in large part to their lawyer, the couple prevailed in court and eventually secured green cards and permanent status.

At the time, the couple was, arguably, the most famous couple in the world.  Yet the lawyer they hired had never heard of them.  In addition, per the ABA Journal, the lawyer “didn’t know when accepting the case . . . that he and his clients were facing a five-year legal battle that would eventually expose corruption at the highest levels of the Nixon administration and change the U.S. immigration process forever.”

Who were the lawyer’s famous clients?

Yoko Ono & John Lennon

Image result for images of john lennon and yoko ono

Monday Morning Answers – #159

Happy Monday!  Friday’s questions are here.  The answers follow today’s Honor Roll.  Congrats to all on it, with a special s/o to first-timer Melinda Siel!

Honor Roll


Question 1

By rule, a lawyer shall not make an agreement for, charge, or collect an unreasonable fee.

True or False: if a client confirms a fee agreement in writing, it is presumed reasonable.

FALSE – Rule 1.5 speaks for itself.  Also see this blog post.  Finally, as the Vermont Supreme Court said here: attempting to justify a fee by arguing that the client agreed to it

  • “. . . demonstrates [the lawyer’s] failure to comprehend the effect of Vermont Rules of Professional Conduct 1.5(a);  lawyers, unlike some other service professionals, cannot charge unreasonable fees even if they are able to find clients who will pay whatever a lawyer’s contract demands.”

Question 2

By rule, which other rule or rules are relaxed:

“When a lawyer, under the auspices of a program sponsored by a non-profit or court, provides short-term legal services to a client without expectation by the lawyer or client that the lawyer will provide continuing representation  in the matter.”

  • A.  The rules on conflicts of interest.  Rule 6.5
  • B.  The rule that requires competent representation
  • C.  The rule that requires candor to the court
  • D.  The rules on safekeeping client property

Question 3

By rule, there are two exceptions to a general prohibition on contacting certain people.  The exceptions are:

  • 1.  if the person is a lawyer; or,
  • 2.  if the person has a family, close personal, or prior professional relationship with the lawyer.

These are the exceptions to the rule that prohibits a lawyer from contacting a:

  • A.  represented person
  • B.  juror
  • C.  former constituent of a represented organization
  • D.  prospective client, by in-person, live telephone or real-time electronic contact, when a significant motive for doing so is the lawyer’s pecuniary gain.  Rule 7.3(a)

Question 4

Lawyer has a conflict.  Therefore, Lawyer moves to withdraw.  Trial court denies the motion and orders Lawyer to continue the representation, notwithstanding that good cause exists to terminate the representation.  By rule, Lawyer must:

  • A.  Appeal
  • B.  Continue the representation.  Rule 1.16(c).
  • C.  Self-report to disciplinary counsel
  • D.  The rule is silent

Question 5

Speaking of how things were different way back when, there was a time when law schools were not required to teach professional responsibility/legal ethics.  Identify the event that resulted in the American Bar Association deciding that legal ethics/professional responsibility should be a required course in law school.


Image result for images of watergate

Monday Morning Answers #158

A Monday morning welcome to the two newest members of the #fiveforfriday Honor Roll: CeCe Conrad & Kristen Shamis!

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

Honor Roll


Question 1

By rule, a lawyer shall not “engage in undignified or discourteous conduct which is degrading or disrupting to a tribunal.”  Which is most accurate?

  • A.  The rule does not cover conduct at a deposition.
  • B.  The rule covers conduct at a deposition. Rule 3.5(d), Comment [5]

Question 2

  • 1.   A former client’s conflict waiver.
  • 2.  An agreement with a new client to limit the scope of the representation.

Each requires the client’s informed consent.

Question 3

Attorney called me with an inquiry.  I listened, then said “having received it, the rule requires 3 things:

  • 1. Prompt notification to the client or third person.
  • 2. Prompt delivery of whatever the client or third person is entitled to receive.
  • 3. Upon request of the client or third person, a full accounting.”

In this scenario, it’s most likely that Attorney received:

  • A.   Privileged information that was inadvertently produced.
  • B.   Funds or property in which a client or third person has an interest.  Rule 1.15 (d)
  • C.   A & B.  The analysis is exactly the same for each.

Question 4

Lawyer called me with an inquiry.  I responded by asking “do you know whether it ‘will be disseminated by means of public communication?’”  Most likely, Lawyer called to discuss the rule on:

  • A.  Client confidences
  • B.  Direct contact with prospective clients
  • C.  Electronic banking
  • D.  Trial Publicity  Rule 3.6

Question 5

As I mentioned above, in L.E. Chittenden’s day, one could become a lawyer without going to law school.  A few jurisdictions, Vermont & California among them, still allow people to “read for the law.”

Indeed, earlier this week, a celebrity made headlines when it was revealed that the celebrity is participating in just such an “apprentice” program.  The celebrity intends to take the bar exam in 2022.

If successful, it’s possible that the celebrity will follow in the family tradition and, one day, serve on a client’s “Dream Team” of lawyers.

Name the celebrity.

Kim Kardashian West.   Elle, Above The Law,  the National Review, and Slate had the story.

Image result for kim kardashian west

Monday Morning Answers #157

The results are in!

Image result for images of a hot dog

While fewer than I expected, the majority of my readers do NOT put ketchup on hot dogs.  Fifty-one of you voted. And, proving that you can’t make this stuff up, 57% of you opt against Heniz 57.  The results:

Hot Dogs


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

Honor Roll

  • Karen Allen, Esq.
  • Evan BarquistMontroll Backus & Oettinger
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, John Marshall Law School
  • Andrew DelaneyMartin & Delaney
  • Jennifer DuxburyPratt Vreeland Kennelly Martin & White
  • Jennifer Emens-Butler, Vermont Bar Association
  • Erin GilmoreRyan Smith & Carbine
  • Bob Grundstein, Esq.
  • Anthony IarrapinoWilschek & Iarrapino
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy, JB Kennedy Associates, Blogger’s Mom
  • Shannon LambPratt Vreeland Kennelly Martin & White
  • John LeddyMcNeil, Leddy, & Sheahan
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • 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.
  • Nancy Rogers, Chamberlin School, South Burlington
  • Jim Runcie, Ouimette & Runcie
  • Jay Spitzen, Esq.
  • Carie TarteSenior Paralegal, Maley & Maley
  • Jonathan Teller-Elsberg, Vermont Law School, Class of 2020,
  • Rachel Thomspon, New Mexico Office of the Public Defender
  • Thomas Wilkinson, Jr., Cozen O’Connor
  • Zachary York, Vermont Superior Court, Chittenden Civil & Criminal


Question 1

An attorney called with an inquiry.  I listened, then said, “I don’t know.  Would it be for either (1) a person of limited means; or (2) a charitable, religious, civic, community or other type of organization that is designed to help people of limited means?”

Given my response, it’s most likely that the attorney called to ask about:

  • A.  the pro bono rule; V.R.Pr.C. 6.1
  • B.  the rule on limited appearances
  • C.  the rule on mandatory withdrawal
  • D.  a succession plan

Question 2

A comment to one of the rules states that “a lawyer’s work load must be controlled so that each matter can be handled competently.”  It’s a comment to the rule that:

  • A.   requires a lawyer to act with reasonable diligence & promptness. V.R.Pr.C. 1.3, Comment [2]
  • B.   prohibits concurrent conflicts of interest
  • C.   refers to prospective clients
  • D.   False.  This is nowhere in the rules or comments.  Tt’s just something Mike says at CLEs.

Question 3

Speaking of ketchup on hot dogs, a lawyer violates the rules by engaging in a “serious crime.”  What’s a “serious crime?”

  • A.   Only crimes of moral turpitude.
  • B.   Only felonies.
  • C.   Any felony and some lesser crimes.  V.R.Pr.C. 8.4(b)
  • D.   The rule is silent.

Question 4

Lawyer called me with an inquiry. I listened, then replied

“in my view,  you can always advise a client as to the consequences of any contemplated course of action. In fact, the rule says that you ‘may discuss the legal consequences of any propose course of conduct with a client and may counsel or assist the client to make a good faith effort to determine the validity, scope, meaning or application of the law.’ “

I was referring to the rule that:

  • A.   governs trust account management
  • B.   sets out the duty of candor to a tribunal
  • C.   deals with conflicts of interest
  • D.  prohibits lawyers from counseling or assisting a client to engage in criminal or fraudulent conduct.  V.R.Pr.C. 1.2(d)

Question 5

I signed up for HBO Now last weekend so I could catsup on Game of Thrones before next week’s opener.  An added bonus? Ketching-up on one of my other favorite shows, one that spurs this question:

This actress holds the record for most Emmy’s for Outstanding Actress in a Comedy Series.  Alas, in what can only be labeled a serious crime, she did not win for her stint in Arrested Development, when she played a prosecutor who, among other things:

  • Spent most of her career pretending to be blind to draw sympathy from jurors & judges;
  • Slept with a defendant’s son mid-trial to try to gain access to incriminating evidence.
  • During one trial, pretended to be pregnant to draw sympathy from jurors

Name the actress.

Julia Louis-Dreyfus in her role as Maggie Lizer

1x17 Justice is Blind (36)


Monday Morning Answers #156

Welcome to April!

Friday’s questions are here.  The answers follow today’s Honor Roll.  Clearly, the members ain’t no fools!

Honor Roll

  • Karen Allen, Esq.
  • Matthew AndersonPratt Vreeland Kennelly & White
  • Penny Benelli, Dakin & Benelli
  • Erin GilmoreRyan Smith & Carbine
  • Robert Grundstein, Esq.
  • Mark HeymanGeneral Counsel, Logic Supply
  • Anthony IarrapinoWilscheck & Iarrapino
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne KennedyJB Kennedy Associates, Blogger’s Mom
  • John LeddyMcNeil, Leddy, & Sheahan
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Kevin LumpkinSheehey Furlong & Behm
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Jeff MessinaBergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Nancy Rogers, Chamberlin Elementary School
  • Charles Romeo & Stephanie Romeo Ryan Smith Carbine
  • Emily Tredeau, Prisoners’ Rights Office
  • Thomas Wilkinson, Jr., Esq, Cozen O’Connor
  • Zachary York, Vermont Superior Court, Chittenden Civil & Criminal


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)(2) (“a lawyer shall reasonably consult with the client about the means by which the client’s objectives are to be accomplished.”)
  • D.   It’s not clear from the rules.

Question 2

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

  • A.   That’s a rule.  V.R.Pr.C. 4.4(a)
  • B.    Aspirational, and one would hope, but not a rule.
  • C.    Umm, the rule doesn’t say “third person,” it says “another party.”
  • D.   Incivility is not unethical.

Question 3

Can a lawyer ethically ask someone other than a client not to volunteer relevant information to another party?

  • A.   No.
  • B.   Yes, if the person is a relative, employee, or agent of the client.
  • C.    Yes, if the lawyer reasonably believes that the person’s interests will not be adversely affected by not giving such information.
  • D.    B & C.  V.R.Pr.C. 3.4(f)

Question 4

Lawyer called me with an inquiry. I listened, then replied “the rule is very specific about when you can use or reveal information relating to the representation of a former client.”

I was referring to the rule on:

  • A.    Duties to Former Clients.   V.R.Pr.C. 1.9(c)
  • B.    Competence
  • C.    Diligence
  • D.    Confidentiality of Information

Question 5

I’m no poet, but given that I’m in the area . . .

Talk about bad PR for the profession! Perhaps we need to be better at Question 2 (above)

Who wrote this poem?

The lawyers, Bob, know too much.
They are chums of the books of the old John Marshall.
They know it all, what a dead hand wrote,
A stiff dead hand and its knuckles crumbling,
The bones of the fingers a thin white ash.
       The lawyers know
       a dead man’s thoughts too well.

In the heels of the higgling lawyers, Bob,
Too many slippery ifs and buts and howevers,
Too much hereinbefore provided whereas,
Too many doors to go in and out of.

       When the lawyers are through
       What is there left, Bob?
       Can a mouse nibble at it
       And find enough to fasten a tooth in?

Why is there always a secret singing
       When a lawyer cashes in?
       Why does a hearse horse snicker
       Hauling a lawyer away?

The work of a bricklayer goes to the blue.
The knack of a mason outlasts a moon.
The hands of a plasterer hold a room together.
The land of a farmer wishes him back again.
       Singers of songs and dreamers of plays
       Build a house no wind blows over.
The lawyers—tell me why a hearse horse snickers
       hauling a lawyer’s bones.

CARL SANDBURG – The Lawyers Know Too Much

Image result for images of carl sandburg

Monday Morning Answers #155

Welcome to the last March Monday!

Spring is near, Friday’s questions are here.   The answers follow today’s Honor Roll.

Honor Roll


Question 1

If the client gives informed consent, or, if doing so is impliedly necessary to carry out the representation, a lawyer does not violate the rules by:

  • A. disclosing information related to the representation.  V.R.Pr.C. 1.6(a)
  • B.  charging an unreasonable fee
  • C.  A & B
  • D.  None of the above

Note: the fact that a client agrees to a fee does not necessarily make it reasonable.

Question 2

When a lawyer opens a pooled interest-bearing trust account, the rules requires the lawyer to notify the bank that:

  • A.  Interest must be paid to the Vermont Bar Foundation.  V.R.Pr.C. 1.15(B)(b)(1)
  • B.  ACH transactions are prohibited on such accounts.
  • C.  the lawyer cannot deposit her own funds in the account, even to cover bank charges
  • D.  All of the above

Question 3

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 with respect to the Rules of Professional Conduct?

  • A.  Opposing Counsel violated the rules.
  • B.  Opposing Counsel did not violate the rulesSee, V.R.Pr.C. 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 4

Lawyer called me with an inquiry.  My response included telling Lawyer that the rule suggests that she must take “reasonable remedial measures.”  Most likely, Lawyer called to discuss the rule on:

Question 5

There’s a lawyer who has been in the news an awful lot the past few years.  Last month, he was forced to give up control over his own law firm after being accused of bankruptcy fraud.

Specifically, he is alleged to have used various & nefarious accounting maneuvers to hide over $10 million in legal fees to keep from having to pay them to his firm’s creditors.

Name the lawyer.

Michael Avenatti.  The ABA Journal has the story here.

Image result for avenatti



Monday Morning Answers #155

I’m about to sanction myself for failing to detect a conflict.

Long ago, I agreed to speak at Thursday’s VBA Mid-Year Meeting.  The seminar falls on the same day that UVM plays an NCAA tournament game within driving distance.

Nice schedule-checking Mike.

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

Honor Roll


Question 1

True or False.

A lawyer cannot be disciplined for trying, but failing, to violate the Rules of Professional Conduct.  That is, discipline can only be imposed for an actual violation.

Aside: imagine being too incompetent to be incompetent?

FALSE.  Rule 8.4(a).

Question 2

Which does not belong with the others?

  • A.  the time & labor required, as well as the skills requisite to perform the legal services properly
  • B.   continued representation will result in a violation of the rules.
  • C.   the lawyer is discharged.
  • D.   the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.

Answer “A” is one of the factors to be considered when analyzing the reasonableness of a fee.  See, Rule 1.5.  The other 3 require withdrawal pursuant to Rule 1.16(a).

Question 3

Lawyer called me with an inquiry.  I listened, then said: “it depends, did you receive information that could be significantly harmful to that person?”

My words “that person” refers to:

A.  a prospective client who met with, but did not retain, Lawyer.  See, Rule 1.18
B.  a prospective juror.  
C.  an opposing party who mistakenly emailed Lawyer
D.  a current client who intends to commit a crime

Question 4

Generally, a lawyer “shall not acquire a proprietary interest” in the client’s cause of action or in the subject matter of the litigation that the lawyer is conducting for the client.  There are two exceptions.

Name 1.

This is Rule 1.8(i)

  1. A lien authorized by law to secure expenses or a fee; or,
  2. A contingent fee in a civil case.

Question 5

Rule 1.1 requies an attorney to provide clients with competent representation.

Although he did not prevail on his argument, one of the more competent self-represented litigants in movie history was an Irish kid from South Boston.   He represented himself at an arraignment on a charge that he had assaulted a police officer, even arguing his own motion to dismiss:

  • Character:  There is lengthy legal precedent, your honor, going back to 1789, whereby a defendant can claim self-defense against an agent of the government, if that act is deemed a defense against tyranny, a defense of liberty.
  • Prosecutor:  Your honor. . .
  • Character:  Henry Lloyd Beecher in Proverbs from the Plymouth Pulpit, 1887 says, and I quote . . .
  • Prosecutor:  1887? This is the 20th century, your honor.
  • Character:  Excuse me, excuse me.
  • Prosecutor:  You’re making a mockery of the Court!
  • Character:  I’m afforded the right to speak in my own defense, sir, by the Constitution of the United States.  This is the same document that guarantees my liberty.
  • Prosecutor:  Hey, don’t tell me about the Constitution of the United States.
  • Character:  Now, liberty, in case you’ve forgotten, is the soul’s rights to breath.  And when it cannot take a long breath, laws are girded too tight.  Without liberty, man is a syncope.
  • Prosecutor:  Man is a what?
  • Character:  Ibid,  your honor.
  • Judge:  Son, my turn. I’ve been sitting here 10 minutes now looking over this rap sheet of yours.   I just can’t believe it.  June ’93, Assault.  September ’93, Assault. Grand Theft Auto in February ’94, where you apparently defended yourself by citing Free Property Rights of Horse and Carriage from 1798.  January ’95, Impersonating an Officer, Mayhem, Resisting. All overturned.  I’m also aware that you’ve been through several foster homes.  The State removed you from three due to physical abuse.  You know, another judge might care, but you hit a cop.  You’re going in. Motion to dismiss is denied.  $50,000 bail.
  • Character:  Thank you your honor.

Soon after the arraignment, Character was released to the supervision of a co-worker, an MIT professor.  Character’s conditions of release required him to attend therapy sessions with the professor’s college roommate, a psychology teacher at a local community college.

Name the movie.


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