Monday Morning Honors #254

Happy Monday!

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

ps: heeding superstition Friday’s intro worked.  I ran a marathon in Maine yesterday and qualified for the 2023 Boston Marathon.

Honor Roll

• Karen Allen
• Alberto Bernabe, Professor, UIC School of Law
• Andrew Delaney, Martin Delaney & Ricci Law Group
• Benjamin Gould, Paul Frank + Collins
• Robert Grundstein
• Glenn Jarrett, Jarrett & Luitjens
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Kevin Lumpkin, Sheehey Furlong & Behm
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Hal Miller, Hawaii Agency Underwriting Counsel, First American Title
• Herb Ogden
• Keith Roberts, Darby Kolter Roberts
• Jonathan Teller-Elsberg, Sheehey Furlong & Behm
• The Honorable John Valente, Vermont Superior Judge
• Jason Warfield, J.D.
• Thomas Wilkinson, Jr., Cozen & O’Connor

Answers

Question 1

 I often mention the 7 Cs of Legal Ethics. In my opinion, conceptualizing the 7 Cs is easier than trying to memorize the specific rules and as likely to lead to the most important C, compliance.

Which of the 7 Cs includes the following?

• Situations in which an act that is otherwise prohibited is mandatory.
• Situations in which an act this is otherwise prohibited is permissive.
• Among the situations in which an act is permissive, the so-called “self-defense” exception.

Confidentiality.  Paragraph (a) sets out the prohibition against disclosing information relating to the representation of a client.  Paragraphs (b) and (c) outline the exceptions.   Rule 1.6 – Confidentiality of Information

Question 2

 There’s a rule that includes the following language:

• “A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client . . .”

True or false?   The only exception to the rule is when entering into a fee agreement with the client.

FALSE.  V.R.Pr.C. 1.8(a) sets out the requirements that must be met for a lawyer to enter into a business transaction with a client. It is not limited to fee agreements.  See, Rule 1.8 – Conflict of Interest – Current Clients – Specific Rules

Question 3

 At a CLE, I said “the rule states that a ‘lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.’ ”  I was discussing the rule that applies when:

• A.  a client files a motion to discharge their lawyer.
• B.  a client’s capacity to make adequately considered decisions in connection with the representation is diminished.  Rule 1.14 – Client with Diminished Capacity
• C.  a client fails to substantially comply with the terms of a fee agreement.
• D.  a lawyer learns that the client has used the lawyer’s services to commit a crime or fraud that is not likely to cause significant bodily or financial injury to another.

Question 4

 In honor of Pam L:

Most of the Rules of Professional Conduct apply to all lawyers.  There’s one, however, that applies only to a lawyer in a specific practice area. The rule includes a requirement that is similar to the constitutional mandate announced by the United States Supreme Court in Brady v. Maryland.  The rule applies to:

• A.  a lawyer who represents a criminal defendant who has not attained the age of majority.
• B.  a prosecutor in a criminal case.  Rule 3.8 – Special Responsibilities of a Prosecutor
• C.  a lawyer who is admitted to practice in a U.S. state and a foreign country.
• D.  a lawyer who represents a publicly held corporation whose primary purpose is to engage in interstate commerce.

Question 5

 Larry Zerner is an entertainment lawyer in Los Angeles.  He uses Twitter to update movie fans on a long-running copyright dispute.  The dispute is between the producer and screenwriter of a movie that was released in 1980.  Since then, Paramount has released 11 more films in the franchise.

Zerner’s interest in the dispute stems from more than working as a lawyer.  In 1982, Zerner appeared in one of the sequels.  In cabins at Crystal Lake, Zerner’s character and the character’s friends were attacked by the franchise’s main character. Zerner’s character’s death allowed the main character to acquire an item that Zerner’s character had used to scare his friends in a prank.  The item has since become iconic in movie lore and pop culture.

Last fall, an appeals court upheld a trial court’s decision to award the screenwriter a copyright for the original script and the characters associated with the original film.  That hasn’t ended the dispute.  The producer contends that the copyright does not include content from the sequels, including the adult version of the franchise’s main character and the iconic item that the main character acquired after dispatching the character played by Attorney Zerner.

Name the movie franchise.                         FRIDAY THE 13th

Bonus: name the iconic item.                     Jason’s hockey mask

CNN has the story of the legal battle here.

 

Monday Morning Honors #253

Happy Monday!  And happy it is (for me) with the week’s forecast!

Many thanks to all who participated in last week’s Well-Being Week in Law. On Wednesday I’ll post a recap that includes a list of those who got involved.  Remember:  there’s no need to limit well-being to a single week in May!  Let’s make it a habit in Vermont’s legal community!

Friday’s questions are here.  The answers follow today’s Honor Roll.  Suffice to say that my Kentucky Derby picks turned out to be undeserving of honor.

• Matthew Anderson, Pratt Vreeland Kennelly Martin & White
• Evan Barquist, Montroll Oettinger Barquist
• Andrew Delaney, Martin Delaney & Ricci Law Group
• Robert Grundstein
• Deborah Kirchwey, Law Office of Deborah Kirchwey
• John T. Leddy, McNeil Leddy & Sheahan
• Jeff Messina, Messina Law
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Keith Roberts,
• Jonathan Teller-Elsberg, Sheehey Furlong & Behm
• The Honorable John Valente, Vermont Superior Judge
• Jason Warfield, J.D.
• Thomas Wilkson, Jr., Cozen & O’Connor

ANSWERS

Question 1

 At CLEs and in response to ethics inquiries, I often state “it’s broader than the privilege.”  When I do, which of the 7 Cs of Legal Ethics am I referring to?  The duty of _____________.

CONFIDENTIALITY.  Rule 1.6 – Confidentiality of Information, Cmt. [3]

Question 2

Which appears in a different rule than the others?

• A.  explain a matter to the extent reasonably necessary for the client to make informed decisions about the representation.
• B.  is likely to be a necessary witness.
• C,  unless the testimony relates to an uncontested issue or to the nature and value of legal services rendered in the case.
• D.  unless disqualification of the lawyer would work substantial hardship on the client.

Option A is language from Rule 1.4 and is an aspect of a lawyer’s obligation to communicate with clients. Tip: in my opinion, clients can’t make reasonably informed decisions about the representation absent reasonable expectations about the representation and unless their lawyer provides them with candid legal advice.

 Options B, C, D appear in Rule 3.7 – Lawyer as Witness

 Question 3

 When using the following phrases at a CLE, what am I discussing?

• prohibited when representing the defendant in a criminal case.
• prohibited in exchange for securing a divorce;
• prohibited if based on the amount of spousal maintenance, spousal support, or property settlement in lieu thereof.
• allowed in post-judgment divorce actions that involve collecting past due spousal maintenance.

A contingent fee. See, Rule 1.5 – Fees

Question 4

In which of the situations below are the rules governing conflicts of interest stricter than the others?  When a lawyer:

• A.  in private practice represents clients at a pro bono clinic sponsored by a court or non-profit.
• B.  moves from private practice to government work.
• C.  moves from government work to private practice.
• D. transfers from one private firm to another private firm.

In A, B, and C, Vermont’s rules allow for screening even if the affected lawyer participated personally and substantially in a matter at a prior job.  That is NOT the case when a lawyer moves from one private firm to another.  If the lawyer’s new firm represents a client whose interests are materially adverse to those of a client represented by the lawyer’s old firm in the same matter, the new firm is disqualified if the lawyer participated personally and substantially in the matter while at the old firm.  See, Rule 1.10 – Imputation of Conflicts of Interest – General Rule and this blog post.

 Question 5

 I’m not positive how widespread the news is, but some of you might have learned that a draft Supreme Court opinion was leaked this week.  Discussing it during our bread debrief, the First Brother and I agreed that we were less surprised by the leak than we were that it hadn’t happened before.  Well, as it turns out, there has been at least one other instance in which a well-known Supreme Court opinion was leaked to the press prior to being released. Indeed, it involved not one, but two leaks.

First, shortly after the arguments, the Washington Post ran a story about the Court’s internal deliberations on the case. The story included a leaked memo that one justice had written to the others.  Seven months later, and a few hours before the Court announced its opinion, Time Magazine published the opinion and the details of the vote. The incident resulted in the then Chief Justice imposing a so-called “20 second rule,” a rule that a law clerk caught communicating with the media would be fired within 20 seconds.

What was the name of the case in which the opinion was leaked?

Bonus: who was the Chief Justice who imposed the 20-second rule?

The case is Roe v. Wade.  At the time, Warren Burger was the Chief Justice.  Among others, NPR and the Washington Post have coverage.

 

Monday Morning Honors #252

Happy Monday!

Many thanks to the Young Lawyers Division of the Vermont Bar Association for putting on another fantastic event in Montreal this weekend. It was great to see so many people in-person. And how about that weather?!?!  Count me as a fan of an April/May Thaw!

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

Honor Roll

• Karen Allen, Karen Allen Law
• Evan Barquist, Montroll Oettinger Barquist
• Penny Benelli, Dakin & Benelli
• Alberto Bernabe, Professor, University of Illinois at Chicago Law
• Corinne Deering, Paul Frank + Collins
• Benjamin Gould, Paul Frank + Collins
• Robert Grundstein
• Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
• Jeanne Kennedy, JB Kennedy Associates, Mother of the Blogger
• John T. Leddy, McNeil Leddy & Sheahan
• Tom Little, Little & Cicchetti
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
• Herb Ogden, Esq.
• Margaret Olnek, Divorce Coach, Assistant Professor, Vermont Law School
• Jonathan Teller-Elsberg, Sheehey Furlong & Behm
• Jason Warfield, J.D.
• Thomas Wilkson, Jr., Cozen & O’Connor

ANSWERS

Question 1

Lawyer works at Firm. If Lawyer has a conflict of interest that prohibits Lawyer from representing Client, which type of conflict is least likely to be imputed to the other attorneys in Lawyer’s firm? A conflict that arises from:

• A.  Lawyer’s representation of a former client.
• B.  Lawyer’s current representation of another client.
• C.  a personal interest of Lawyer’s. V.R.Pr.C. 1.10(a)
• D.  trick question. In VT, all conflicts are imputed to others in the same firm.

Question 2

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

• A. Yes, but only if the payor is related to the client.
• B. Yes, but only if the payor is the client’s insurance company or employer.
• C.  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).
• D.  A & B.

Question 3

Under Vermont’s rules, if a lawyer reasonably believes that a client intends to commit an act that will result in the death of or substantial bodily harm to the client, the lawyer ____:

• A.  must disclose client’s intention.
• B.  must not disclose the client’s intention.
• C.  may disclose the client’s intention. V.R.Pr.C. 1.6(c); See, Cmt. [10].
• D.  It depends on how old the client is.

Question 4

Lawyer called me with an inquiry related to a potential conflict between a prospective client and a former client. We discussed the distinction between the lawyer’s general knowledge of the former client’s policies and practices, versus the lawyer’s knowledge of specific facts gained during the prior representation that are relevant to the new matter.

As such, it’s most likely that Lawyer’s former client is _________:

• A.  a minor.
• B.  an organization. V.R.Pr.C. 1.9, Cmt. [3].
• C.  deceased.
• D.  represented by a law firm that once employed Lawyer.

Question 5

The Thaw is on my mind.

With “most” defined as “all,” most of my knowledge of the British Commonwealth’s legal system comes from tv and movies. Last week, I binged Anatomy of a Scandal. Set in England, here are the lawyers who appeared in a criminal trial:

A few years ago, I loved the Australian show Rake. Here’s the star:

So, if I bump into a Canadian lawyer in Montreal, I might ask the lawyer if they have a peruke. It’s altogether possible that the lawyer will have no idea what “peruke” means. If so, what’s the word I’ll use instead? The more common term for a “peruke?”

Negative infinity points for any smart aleck comments that I should get my own a peruke.

A wig that English barristers wear in court.  Perukes are no longer worn in court in Canada.

Monday Morning Honors #251

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

Honor Roll

• Evan Barquist, Montroll Oettinger Barquist
• Penny Benelli, Dakin & Benelli
• Alberto Bernabe, Professor, University of Illinois at Chicago Law
• Andrew Delaney, Martin Delaney & Ricci
• Robert Grundstein
• Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
• Nicole Killoran, Professor, Vermont Law School
• John T. Leddy, McNeil Leddy & Sheahan
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
• Honorable John Valente, Vermont Superior Judge
• Jason Warfield, J.D.

 ANSWERS

Question 1

Lawyer called me with an inquiry.  I listened, then responded: “Maybe.  Does it arise from your relationship with a current or former client? Or does it arise from a personal interest of yours?

In my response, what is “it?”

It is a conflict of interest.  My response to the inquiry refers to imputed conflicts.  See, Rule 1.10 – Imputation of Conflicts of Interest – General Rule.

Question 2

 By rule, a lawyer who has direct supervisory authority over a nonlawyer ___________:

• A.  will be sanctioned if the nonlawyer does something that would violate the rules if done by the lawyer.
• B.  is not professionally liable for the conduct of the nonlawyer.
• C.  shall make reasonable efforts to ensure that the person’s conduct is compatible with the lawyer’s professional obligations.  Rule 5.3 – Responsibilites Regarding Nonlawyer Assistants.
• D.  None of the above.  While there is a rule that applies to a lawyer’s supervision of other lawyers, there is no rule that applies to a lawyer’s supervision of nonlawyers.

Question 3

There’s a rule that prohibits a lawyer from making false or misleading communications about the lawyer or the lawyer’s services.

Does the rule prohibit truthful statements that are misleading?

Yes.  It’s rule Rule 7.1 – Communications Concerning a Lawyer’s Services It states that a “communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.”  Per Comment [2], “truthful statements that are misleading are also prohibited by this rule.”  The comment goes on to describe truthful statements that violate the rule.

Question 4

What do the Rules of Professional Conduct define as “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”

Informed Consent. Rule 1.0 – Terminology

Question 5

Season 6 of Better Call Saul debuts on Monday. I can’t wait. It’s one of my favorite shows of all-time and I am so looking forward to the final season.

For those who don’t know, the lead character, “Saul Goodman,” is an attorney who often finds himself on the wrong side of the Rules of Professional Conduct. In addition, in both Better Call Saul and Breaking Bad, Saul often mentions (complains of) his bad knees.

According to the show’s writers, Saul’s needs are so bad because of antics he engaged in well before changing his name to Saul Goodman.  Indeed, those antics resulted in a nickname associated with his real name.

What’s Saul Goodman’s real name?

And, bonus, what’s the antic-driven nickname that explains his bad knees?

James M. McGill.  Slippin’ Jimmy.

Monday Morning Honors & Answers: #249

When I woke up, I wasn’t certain whether it was Monday or January.  I’m still not.  Oh well.

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

Honor Roll

• Karen Allen, Karen Allen Law
• Matthew Anderson, Pratt Vreeland Kennelly Martin & White
• Evan Barquist, Montroll Oettinger Barquist
• Penny Benelli, Dakin & Benelli
• Alberto Bernabe, Professor, University of Illinois at Chicago Law
• Andrew Delaney, Martin Delaney & Ricci
• Heather Devine, Tarrant Gillies Shems
• Rick Fadden, Barry Callebaut, Blogger’s Stoolmate
• Robert Grundstein
• Anthony Iarrapino, Wilscheck & Iarrapino
• Glenn Jarrett, Jarrett & Luitjens
• Elizabeth Kruska, Immediate Past President, Vermont Bar Association Board of Managers
• Deb Kirchwey, Law Office of Deborah Kirchwey
• Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
• Pam Loginsky, Deputy Prosecuting Attorney, Pierce County, Washington
• Kevin Lumpkin, Sheehey Furlong & Behm
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Jeffrey Messina, Messina Law
• Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
• Herb Ogden, Esq.
• Margaret Olnek, Divorce Coach; Assistant Professor, Vermont Law School
• Lisa Penpraze, Assistant United States Trustee, Department of Justice
• Jim Remsen, Lord Microstrain, Blogger’s Stoolmate
• Keith Roberts, Darby Kolter & Roberts
• Stephanie Romeo, Ryan Smith & Carbine
• Jonathan Teller-Elsberg, Sheehey Furlong & Behm
• Honorable John Valente, Vermont Superior Judge
• Jason Warfield, J.D.
• Thomas Wilkinson, Jr., Cozen O’Connor

 ANSWERS

Question 1

At a CLE later today, I’ll urge lawyers to set reasonable expectations with clients at the outset of the representation. I’ll also remind them that a lawyer’s duty is to provide candid legal advice, even if it’s advice that the client doesn’t want to receive.

During that portion of the seminar, which 2 of the 7 Cs of legal ethics will I mention?

I confess, the two I had in mind were Communication and Competence.  However, several readers mentioned “candor,” so I’ll accept that as well.  As I blogged here, I’m of the opinion that a lawyer’s duty to communicate sufficient information to allow the client to make informed decisions includes setting reasonable expectations at the outset of the representation.  And, as I blogged here, I’m also of the opinion that the duties of competence and communication include providing candid legal advice.  See, Rule 2.1 – Advisor.

Question 2

 With respect to legal ethics, the phrase “going up the ladder” is most often used in connection with the duties of an attorney who:

• A.  is duty bound to report another attorney to disciplinary authorities.
• B.  represents an organization. Rule 1.13 – Organization as Client
• C.  is being paid by someone other than the client.
• D.  has a side business painting houses.

Question 3

Prospective Client wants to retain Lawyer for representation in a divorce from Spouse.  Spouse’s business deals will be a significant issue in the divorce.  Lawyer’s paralegal used to work at the law office that is representing Spouse.  While there, Paralegal participated personally & substantially on legal matters related to Spouse’s business deals.

Under Vermont’s rules, what’s most accurate?

• A.  Lawyer may not represent Prospective Client. Paralegal has a conflict and it’s imputed to Lawyer.
• B.  Lawyer may represent Prospective Client.  Prospective Client knows all about Spouse’s business deals.  Therefore, there’s no risk that Paralegal will share confidential information.
•  C.  Lawyer may represent Prospective Client, but only if  Spouse gives informed consent, confirmed in writing.
• D. Lawyer may represent Prospective Client.   Paralegal’s conflict is not imputed to Lawyer.  So that Paralegal does not share any confidential information about Spouse, Lawyer should screen Paralegal from any involvement in the divorce.  Rule 1.10 – Imputation of Conflicts of Interest – General Rule.

Question 4

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

• “Notice should come from you and the firm. A few years ago, the ABA issued an advisory ethics opinion that stated that it’s preferable to issue a joint notice.  The notice should go to all clients who deal (or who have dealt) directly with you.  What the clients do after that is up to them.”

Given my response, what will Attorney be doing soon?

Leaving the firm.  See my blog posts Leaving a Law Firm – Breaking up is hard to do & Leaving a Law Firm – Update.

Question 5

 I rarely take requests for Question 5.  However, I was recently sitting at McGillicudy’s when Rick, a non-lawyer friend and fellow stool sitter, mentioned that he’d tried a recent quiz and hadn’t gotten any right.  I replied that he shouldn’t because he’s not a lawyer!  Then, my brother told him to try another quiz, but only to worry about Question 5.

Still, I was surprised.  We were sitting in our regular bar talking, however briefly, about legal ethics and professional responsibility?!?!  The word is spreading!  So, I asked Rick his favorite fictional lawyer and promised to dedicate Question 5 to that lawyer.  Rick replied something to the effect “it’s ironic that on an ethics quiz you’ll basically be telling me the answer ahead of time!”

Aha! I did no such thing! I asked his favorite fictional lawyer. I never said that lawyer would be the answer to Question 5!

How lawyerly of me to ruin the moment.

Anyhow, Rick’s favorite fictional lawyer is Seinfeld’s Jackie Chiles.  So, without further ado, here’s to Rick!

In an episode of Seinfeld, Kramer retains Jackie Chiles to sue a woman who Kramer alleges caused him to crash his car.  Here’s a snippet of one of their conversations:

Kramer: And she’s the heir to the ________ candy bar fortune.
Jackie Chiles: Could you repeat that?
Kramer: I said she’s the heir to the ________ candy bar fortune.
Jackie Chiles: _________? That’s one of our top-selling candy bars. It’s got chocolate, peanuts, nougat. It’s delicious, scrumptious, outstanding!

Later, at trial, things go awry after Kramer, on the advice of Stam (a golf caddy) and over Jackie’s objections, asks the judge to order the woman to try something on.

Fill-in-the-blank:  what candy bar?

Bonus:  what did the judge order the woman to try on?

Of course, this was Sue Ellen Mischke, heiress to the Oh Henry! candy fortune.  The judge ordered her to try on a bra, which didn’t fit.  Leading to this exchange and today’s bonus quote from Jackie Chiles:

Judge: This court will come to order. Go ahead, Miss Mischke, try it on.
Sue Ellen: It doesn’t fit. I can’t put it on.
Jackie Chiles: [to Kramer and Stan] Damn fools! Look at that! We got nothing now! Nothing! I’ve been practicing law for 25 years, you’re listening to a caddy! This is a public humiliation! You can’t let the defendant have control of the key piece of evidence. Plus, she’s trying it on over a leotard. Of course a bra’s not gonna fit on over a leotard. A bra gotta fit right up a person’s skin. Like a glove!

Monday Morning Honors & Answers: #248

Welcome to Monday!

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

Honor Roll

• Karen Allen, Karen Allen Law
• Matthew Anderson, Pratt Vreeland Kennelly Martin & White
• Penny Benelli, Dakin & Benelli
• Alberto Bernabe, Professor, University of Illinois at Chicago Law
• Geoffrey Bok, Esq.
• Rich Cassidy, Rich Cassidy Law
• Andrew Delaney, Martin Delaney & Ricci
• Cary Dube, Bergeron, Paradis, Fitzpatrick
• Benjamin Gould, Paul Frank + Collins
• Robert Grundstein
• Merle Haskins, Assistant Judge, Vermont Superior Court
• Glenn Jarrett, Jarrett & Luitjens
• Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
• Jeanne Kennedy, JB Kennedy Associates, Mother of the Blogger
• John T. Leddy, McNeil Leddy Sheahan
• Jordana Levine, Marsicovetere & Levine
• Kevin Lumpkin, Sheehey Furlong & Behm
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Jeffrey Messina, Messina Law
• Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
• Herb Ogden, Ogden Law
• Lisa Penpraze, Assistant United States Trustee, Department of Justice
• Keith Roberts, Darby Kolter & Roberts
• Jonathan Teller-Elsberg, Sheehey Furlong & Behm
• Jason Warfield, J.D.
• Jack Welch, Esq.

 ANSWERS

Question 1

 

Attorney called me with an inquiry.  Attorney said “Mike, I represent Witness.  Lawyer represents Party.  Lawyer keeps contacting my client directly.  I asked Lawyer to stop.   Lawyer insists that the no-contact rule doesn’t apply because Witness isn’t a party. Is Lawyer right?”

What was my response?

•   A. Yes.
•   B. The rule is unclear.
•   C. The rule is unclear, but, by case law, no, Lawyer is wrong.
•   D. No. The rule is clear. It applies to any “person” who is represented in a matter.  Lawyer is wrong.  V.R.Pr.C. 4.2; See Comment [2] (“This rule applies to communication with any person who is represented by counsel concerning the matter to which the communication relates.)

 Question 2

 Attorney called me with an inquiry about funds. I listened, then replied, “You may.  But only in an amount reasonably necessary to cover reasonably expected bank fees.”

My response accurately  stated the rule.  Therefore, it’s most likely that the funds Attorney asked about belonged to ________:

•  A. A client.
• B. Attorney.  V.R.Pr.C. 1.15(b).
• C.  A person who is not a client but who is paying Attorney to represent a client.
• D. A  third person who has a lien on funds that Attorney recovers for a client.

 Question 3

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

• “is the criminal act going to result in substantial bodily harm to your client? Or to someone other than your client?”

Given my response, Lawyer’s inquiry related to the rule on:

•   A. Client confidences.  V.R.Pr.C. 1.6.  When the harm will result to someone other than the actor, disclosure is mandatory.  V.R.Pr.C. 1.6(b).  When the harm will result to the actor, disclosure is permissive.  V.R.Pr.C. 1.6(c).
•  B. Withdrawal
•  C. Conflicts of Interest
•  D. The Special Responsibilities of a Criminal Prosecutor

Question 4

 There are two rules that impose a duty to take “reasonable remedial” action or measures.  One is the rule on “Candor to a Tribunal.”  It requires a lawyer to take reasonable remedial measures whenever the lawyer learns that a client or witness for a client has offered false evidence, and whenever the lawyer learns that a person has engaged, is engaging, or intends to engage in criminal or fraudulent conduct related to a proceeding.

What’s the other rule address?

•  A. Advertising.
•  B. Conflicts involving a current client and a former client.
•  C. Conflicts involving a current client and a prospective client.
•   D. A lawyer’s duties when a nonlawyer assistant does something that would violate the rules if the lawyer had done it.  See, V.R.Pr.C. 5.1 and V.R.Pr.C. 5.3.

Question 5

  As history tells it, Cicero was one of the great Roman orators.  He was also a capable & competent lawyer.

Long ago, and at exactly this time of year, Cicero used all his skills to mediate a resolution between two groups: people who conspired to commit (and committed) a brutal act, and people who were supporters of the famous victim.

Shakespeare forever memorialized several lines that are associated with the brutal act.  One of those lines refers to a Roman holiday that took place this week.  The same line includes a word that is associated with the current NCAA basketball tournament.

Who was the victim?  Julius Caesar

Bonus:  what’s the line?  “Beware the Ides of March.” Julius Caesar, Act 1, Scene II

Kudos to Kevin Lumpkin for noting that I could’ve transformed the bonus into a “before and after:”  

Beware the Ides of March Madness

 

Monday Morning Honors in Legal Ethics: #247

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

Many readers reported an interest in Theranos content.  Alas, not one mentioned Killing Eve!  Still, congratulations to the Honor Rollees!

Honor Roll

• Karen Allen, Karen Allen Law
• Evan Barquist, Montroll Oettinger & Barquist
• Penny Benelli, Dakin & Benelli
• Alberto Bernabe, Professor, University of Illinois at Chicago Law
• Beth DeBernardi, Administrative Law Judge, Vermont Department of Labor
• Corinne Deering, PACE Registered Paralegal®, Paul Frank + Collins
• Andrew Delaney, Martin Delaney & Ricci
• Cary Dube, Bergeron, Paradis, Fitzpatrick
• Benjamin Gould, Paul Frank + Collins
• Robert Grundstein
• Glenn Jarrett, Jarrett & Luitjens
• Deb Kirchwey, Law Office of Deborah Kirchwey
• Jim Knapp, Esq.
• Elizabeth Kruska,Immediate Past-President, VBA Board of Bar Managers
• John T. Leddy, McNeil Leddy Sheahan
• Pam Loginsky, Deputy Prosecuting Attorney, Tacoma (WA)
• Kevin Lumpkin,Sheehey Furlong & Behm
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
• Herb Ogden, Esq.
• Keith Roberts, Darby Kolter & Roberts
• Jonathan Teller-Elsberg, Sheehey Furlong & Behm
• Honorable John Valente, Vermont Superior Judge
• Jason Warfield, J.D.
• Thomas Wilkinson, Jr., Cozen O’Connor
• Zachary York, Paralegal, Sheehey Furlong & Behm

 

ANSWERS

Question 1

 Does an e-mail qualify as a “writing” for the purposes of any of the Vermont Rules of Professional Conduct that require something to be in writing?

YES.  See, V.R.Pr.C. 1.0(n).

 Question 2

 Attorney represents Eve in Eve v. Villanelle.  Attorney called me with an inquiry about the matter.  After listening, I asked a question to which Attorney responded “yes.”  So, I replied “parties are always free to communicate with each other.  But there’s a rule that prohibits you from violating the rules through the act of another. So, take care not to script something for Eve to parrot to Villanelle.”

When Attorney responded “yes,” what question had I asked?

• A.  Whether Eve is related to Villanelle.
• B.  Whether Eve is Villanelle’s supervisor at work.
• C.  Whether Villanelle is a former client of Attorney’s.
• D.  Whether Villanelle is represented in the matter.

Question 3

 At a CLE, imagine I answer a question by saying:

• “Whenever someone asks you to disclose information that’s in a current or former client’s file, absent the client’s informed consent to disclose the information, the most prudent course is to inform the person that you require a subpoena. Then, your duty is to raise all non-frivolous arguments against disclosure in a motion to quash. If the court enforces the subpoena and compels disclosure, the rule permits you to comply with the order, even over your client’s objection.”

Arguably, at least 3 of the 7 Cs of Legal Ethics are implicated in this scenario.  However, which of the “C” duties were we most likely discussing when the question was asked?

CONFIDENTIALITY.  See, my blog post Subpoena to Disclose Client Information?

 Question 4

 Lawyer and Client agree that Lawyer will represent Client for a “nonrefundable fee” of $X.  The agreement is confirmed in a writing that defines the scope of the services that Client will receive in exchange for the nonrefundable fee.  The agreement does not prospectively limit the Client’s ability to challenge the reasonableness of the non-fundable fee.  Both Lawyer and Client sign the agreement.

Client advances $X to Lawyer.  By rule, Lawyer

• A.  must deposit the fee into an IOLTA and withdraw the fee as earned.
• B.  must not deposit the fee into an IOLTA.  That would be commingling. See, V.R.Pr.C. 1.5(f) and 1.5(g). 
• C.  must prepare a new fee agreement that does not use the phrase “nonrefundable fee.”
• D.  C & self-report to disciplinary counsel.

See also, Trust Account Tuesday: Nonrefundable fees.

Question 5

 Yesterday, Hulu released the first three episodes of The Dropout. It’s based on the real-life story of a person whose sensational criminal trial concluded in January.  A jury found the person guilty of multiple charges related to defrauding investors of millions.  According to NPR, the verdict “capped the downfall of one of Silicon Valley’s most dynamic and scandal-plagued young executives who promised to revolutionize blood testing with an innovative technology that required just a small sample of blood pricked from a patient’s finger.”

The saga first garnered significant publicity following investigative journalist John Carreyrou’s 2015 release of Bad Blood: Secrets and Lies in a Silicon Valley Startup.  The attention included discussions of legal ethics and professional responsibility.  Indeed, according to a law review article that was published last year, the “story touches on multiple areas of professional responsibility, including competence, diligence, candor, conflicts, and liability . . . [and] serves as a helpful tool to explore the limits of ethical lawyering.”

Name the company at the center of the saga.  THERANOS

Bonus: name “the dropout” who was recently convicted of the criminal charges.  ELIZABETH HOLMES

 

Monday Morning Answers #246

Happy Monday morning!

Friday’s questions are here, along with my ranking of the Girl Scout cookies.  Suffice to say, readers are not impressed with my placement of Thin Mints.  Answers to the questions follow today’s Honor Roll.

Honor Roll

• Karen Allen, Karen Allen Law
• Brian Amones, Law Offices of Brian Amones
• Matt Anderson, Pratt Vreeland Kennelly Martin & White
• Evan Barquist, Montroll Oettinger & Barquist
• Penny Benelli, Dakin & Benelli
• Alberto Bernabe, Professor, University of Illinois Chicago School of Law
• Amy Butler, Law Office of Amy Butler
• Rich Cassidy, Rich Cassidy Law, Vermont Bar Association Board of Managers
• Matt Daly, Daly and Daly
• Benjamin Gould, Paul Frank + Collins
• Bob Grundstein
• Merle Haskins, Assistant Judge, Caledonia County
• Glenn Jarrett, Jarrett & Luitjens
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Jeanne Bonneau Kennedy, Mother (of the) Blogger
• Elizabeth Kruska, Immediate Past-President, Vermont Bar Association Board of Mangers
• A. J. Larosa, MSK Attorneys
• John Leddy, McNeil Leddy Sheehan
• Jordana Levine,Marsicovetere & Levine, Vermont Bar Association Board of Managers
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Jeffrey Messina, Messina Law
• Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
• Herb Ogden
•  Keith Roberts, Darby, Kolter, Roberts
• Jim Runcie, Ouimette & Runcie
• Jonathan Teller-Elsberg, Sheehey Furlong & Behm
• Honorable John Valente, Vermont Superior Judge
• Thomas Wilkinson, Jr.,Cozen & O’Connor

 ANSWERS

Question 1

 Vermont’s rule on client confidences includes several exceptions to the general duty not to disclose information relating to the representation of a client.  One exception lists the situations in which disclosure of otherwise confidential information is mandatory.  Another lists the situations in which disclosure is permitted, but not required.

There’s another rule that does something similar.  The first paragraph lists the situations in which a lawyer’s act is mandatory.  The second paragraph lists the situations in which the same act is permitted, but not required.  What’s the topic of the rule?

• A. Communicating with a person represented by counsel.
• B. Dealing with an unrepresented person.
• C. Trust Accounting.
• D.  Withdrawing from the representation of a client.  V.R.Pr.C. 1.16.  Paragraph (a) lists the situations in which an attorney must withdraw, paragraph (b) the situations in which withdrawal is permitted.

Question 2

Lawyer called me with an inquiry.  Responding, I noted “but there’s a comment to the rule that states that in negotiations, certain statements are not to be taken as statements of material fact. For instance, what your client’s bottom line might be with respect to settlement.”

What’s the title of the rule I was discussing?

• A. Communication With Person Represented By Counsel.
• B.  Truthfulness In Statements To Others.  V.R.Pr.C. 4.1, see also, Puffery & the Ethics of Settlement Negotiations.
• C.  Respect For Rights Of Third Persons.
• D.  Duties to Prospective Clients.

Question 3

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

• A.  to disburse (or not) as directed by the client.
• B.  to keep the disputed funds in trust 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 4.

Fill in the blank.

Attorney called me with an inquiry.  I listened, then said “nothing in the rules requires a lawyer or law firm to enroll in a ‘positive pay’  service.  Still, you’d be smart to consider it.  It might be used to show that you took reasonable steps  ____________.”

It’s most likely that the remainder of my response was:

• A.  to avoid a conflict of interest.
• B.  to safeguard client funds. See, this post with a tip to protect against check fraud.
• C.  to charge a reasonable fee.
• D.  to remonstrate with a client who provided false information to a court.

Question 5

Ron Torbert graduated from Harvard Law School.  Attorney Torbert spent many years in corporate and construction law before retiring from the practice of law in 2019.

Now, Ron works in a different field.  With the 7 Cs of legal ethics in mind, it’s an understatement to say that Ron is competent in his current line of work, one in which he works as a judge of sorts. In fact, more than 100 million people recently watched Ron perform his official duties.

What does Ron do for work now that he is no longer practicing law?

Ron is now an NFL referee.  Last week, Ron was the head official in Super Bowl LVI.

Monday Answers #245: the Sac-O-Suds!

Happy Monday morning!

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

Honor Roll

• Matt Anderson, Pratt Vreeland Kennelly Martin & White
• Evan Barquist, Montroll Oettinger & Barquist
• Penny Benelli, Dakin & Benelli
• Andrew Delaney, Martin Delaney & Ricci
• Heather Devine, Tarrant Gillies Shems
• Bob Fletcher, Stitzel Page & Fletcher; President, Vermont Bar Association,
• Bob Grundstein
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Deb Kirchwey, Law Office of Deborah Kirchwey
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Jeffrey Messina, Messina Law
• Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
• Herb Ogden, Esq.
• Keith Roberts, Darby Kolter & Roberts
• Brice Simon, Breton & Simon
• Jonathan Teller-Elsberg, Sheehey Furlong & Behm
• Jason Warfield, J.D.

Question 1

 The following are exceptions to a particular rule.

• to establish a claim or defense in a controversy between the lawyer and client;
• to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved; or,
• to respond to allegations in any proceeding concerning the lawyer’s representation of the client.

The rule addresses one of the 7 Cs of Legal Ethics.  Which one?

CONFIDENTIALITY.  See, V.R.Pr.C. 1.6.  The listed exceptions are in paragraph (c)(3), the so called “self-defense” exception.

 Question 2

Fill in the blank.

A comment to one of the conflicts rules states that “continued common representation will almost always be inadequate if one client _________________.”

• A.  pays a higher percentage of the lawyer’s fee than the other client.
• B.  is also a former client, but in an unrelated matter.
• C.  is the lawyer’s main contact on matters related to the representation.
• D.  asks the lawyer not to disclose to the other client information relevant to the common representation.  See, V.R.Pr.C. 1.7, Cmt. [31].

 Question 3.

Notwithstanding a conflict of interest, a lawyer may represent a client if

• A. The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client and the representation is not prohibited by law.
• B.  The representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal.
• C.  Each affected client gives informed consent, confirmed in writing.
• D.  A, B, and C.  These are the elements set out in Rule 1.7(b).

Question 4

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

• “There’s no rule that specifically prohibits it. But the fee must be reasonable, you must comply with the rule on business transactions with a client, and you should consider whether it would create a personal interest that would materially limit your ability to provide the client with competent and candid legal advice.”

Given my response, it’s most like that Lawyer called to ask about:

• A.  a contingent fee.
• B.  accepting an ownership interest in a client’s business as payment for legal fees.
• C.  representing a family member.
• D.  marrying a client.

Karen Rubin is a lawyer (and friend of this blog) who writes for The Law for Lawyers Today. Last year, Karen posted Take stock instead of legal fees? Take a hard look and mind the ethics rules.

Question 5

In the introduction, I mentioned something that I saw on Twitter the other day.  Another thing that I saw on Twitter this week was this:

I agree!

Here’s today’s question:

Vinny’s clients were charged with robbing and shooting a store clerk.  However, when they were arrested, they thought it was for accidentally shoplifting.  While at the store, Vinny’s cousin didn’t pay for an item he had put in his pocket because his hands were full.

What was the item?   A can of tuna.

Bonus: what’s the name of the store?  Sac-O-Suds

Monday Answers: #244

Happy February Eve!

From the responses to Friday’s post, I’m comfortable concluding that not many  readers will miss January.  Shout out to the firm that celebrated with Tropical Friday!

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

Honor Roll

• Karen Allen, Karen Allen Law
• Evan Barquist, Montroll Oettinger & Barquist
• Penny Benelli, Dakin & Benelli
• Amy Butler, Law Office of Amy Butler
• Andrew Delaney, Martin Delaney & Ricci
• Bob Grundstein
• Glenn Jarrett, Jarrett & Luitjens
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• John Leddy, McNeil, Leddy & Sheahan
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Jeffrey Messina, Messina Law
• Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
• Herb Ogden
• Keith Roberts, Darby Kolter & Roberts
• Jonathan Teller-Elsberg, Sheehey Furlong & Behm
• The Honorable John Valente, Vermont Superior Judge
• Thomas Wilkinson, Jr., Cozen & O’Connor
• Jason Warfield, J.D.
• Jack Welch, Esq.

Question 1

Michael contacts Attorney for representation.  Michael’s matter is substantially related to a matter in which Attorney formerly represented Patrick.

By rule, which is most relevant to Attorney’s consideration of whether to represent Michael?

• A.  whether Michael’s interests are materially adverse to Patrick’s.  See, V.R.Pr.C. 1.9(a).
• B..whether Attorney remembers anything about Patrick’s matter.
• C..whether Patrick’s matter concluded more than 7 years ago.
• D..the nature of Michael’s matter: litigation or transactional.

 Question 2

 Here’s the first clause of V.R.Pr.C. 4.4(a):

“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 . . .”

I’ve long argued that as the presence of one of the 7C of Legal Ethics wanes, the well-being of the profession deteriorates.  Which one?  That is, which of the 7Cs, when taken to the opposite extreme, crosses a line and violates the first clause in Rule 4.4(a)?

CIVILITY   (If scores mattered, I’d accept compassion, caring, courtesy . . . etc.)

A reader asked for a reminder.  The 7 Cs are:

• 5 that are rules:  Competence, Communication, Confidentiality, Conflicts, Candor.
• 2 others:  Commingling, Civility

Question 3

Math!

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

Y = the number of years that a rule requires lawyers to maintain trust account records following the termination of the representation.

What is X * Y?

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

 X = 50.  V.R.Pr.C. 6.1

Y = 6.  V.R.Pr.C. 1.15(a)(1).

Question 4

Lawyer called me with an inquiry.  My response included “It seems like there are grounds to do so.  But if you do, make sure to avoid noisy ______________.”

Given my answer, it’s most likely that Lawyer called to discuss:

• A.  withdrawing from representing a client.  See; Stop Making Noise
• B.  reporting opposing counsel to disciplinary counsel.
• C.  a trust account scam
• D.  throwing a Super Bowl party.

Question 5

Earlier this week I posted Espionage, Bribery, and Reinstatement to the Practice of Law. It refers to the story of a lawyer who, last month, sought reinstatement to the D.C. Bar.  The lawyer was disbarred in the 90s after being convicted of espionage.

In 1950, and in a criminal trial that captured the nation’s attention, a lawyer was charged with perjury. The charge was based on an allegation that the lawyer had lied to the House Committee on Un-American Activities by stating that he had not been a communist spy in the 1930s.  Because the statute of limitations had run, the lawyer was not charged with espionage

On one side of the trial, the government’s evidence included the so-called “Pumpkin Papers,” papers that an admitted former spy, who’d hidden them in a pumpkin for years, testified proved that he and the lawyer had committed espionage for the Soviets.

On the other, two sitting justices of the United States Supreme Court testified as character witnesses for the lawyer.

The lawyer was convicted.  As a result, the lawyer was disbarred in Massachusetts.  Then, in 1975, the Supreme Judicial Court of Massachusetts reinstated the lawyer, making him the first Massachusetts lawyer ever to be reinstated after having been disbarred.

Name the lawyer.  ALGER HISS

Bonus: name the member of the House Committee on Un-American Activities who, years later, was disbarred himself.   RICHARD NIXON

 The Alger Hiss trial fascinates me.  History has a good primer here.