Monday Morning Answers

Monday Morning Honors #269

Michael Leave a comment

Happy Monday!

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

Honor Roll

  • Karen Allen, Karen Allen Law
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, UIC School of Law
  • Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labor
  • Andrew Delaney, Martin Delaney & Ricci
  • Benjamin Gould, Paul Frank + Collins
  • Robert Grundstein
  • Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
  • Deb Kirchwey, Law Office of Deborah Kirchwey
  • Elizabeth Kruska, Past-President, Vermont Bar Association
  • Pam Loginsky, Deputy Prosecuting Attorney, Pierce County (WA)
  • Kevin Lumpkin, Sheehey Furlong & Behm
  • Bob Lydon, Law Clerk for Vermont Supreme Court Justice Nancy Waples
  • Pam Marsh, Marsh & Wagner
  • Susan McManus, Office of the Bennington County Public Defender
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeff Messina, Messina Law
  • Hal Miller, First American Title, Hawaii State Counsel
  • Keith Roberts, Darby Kolter & Roberts
  • Honorable John Valente, Vermont Superior Judge
  • Jason Warfield, J.D.
  • Thomas G. Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

Regular reader Professor Alberto Bernabe urges law students to remember the core principles of legal ethics by associating those principles with the letter grades that they don’t want to receive in his class. So, Professor Bernabe refers to 4 Cs, 1 D, and 1F.

There’s a rule that requires lawyers to act with “reasonable _______ and promptness” when representing a client. A comment to the rule states that a “lawyer’s duty to act with reasonable ________ does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.”

Which core duty that is one of Professor Bernabe’s “bad grades” properly fills in the blank?

DILIGENCE.   The language is from Comment 1 to V.R.Pr.C. 1.3.

Question 2

A recent amendment to the Vermont Rules of Professional Conduct prohibits lawyers from issuing a check that is drawn on a pooled interest-bearing trust account (IOLTA) to ________:

Question 3

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 client of the lawyer’s 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.V.R.Pr.C. 1.7, Cmt. [31].

Question 4

Fill-in-the-blank.

True story.  Earlier this week I received an email from a lawyer who was trying to avoid “noisy _______.”  Indeed, “noisy _______” is a phrase intended to remind lawyers not to disclose confidential information when filing and arguing a certain type of motion. 

What word properly fills in the blank?

Withdrawal.  See, Stop Making Noise

Question 5

Today’s introduction includes a link to the press release that DOJ issued after Attorney Michael Avenatti was sentenced to 14 years in prison for stealing millions from clients.

Last month, Netflix released a documentary in which Avenatti appeared. The documentary re-tells the true story of Avenatti’s former client, John Leonard.  In the mid-90s, Leonard, then 20, found a loophole in a promotion run by a major corporation that, according to Leonard, entitled him to a $30 million fighter jet. The corporation, which ran the promotion as part of the so-called “Cola Wars,” claimed that the offer of a jet was an obvious joke and that nobody could have reasonably believed that they could actually win a fighter jet. 

Netflix teased the documentary by describing the man’s attempts to claim the fighter jet as setting “the stage for a David & Goliath court battle for the ages.”   In the end, the corporation prevailed.

Name the corporation.

Pepsi. The documentary is Pepsi, Where’s My Jet?  According to Salon, Avenatti’s work uncovering prior Pepsi promotion scandals was one of most bizarre revelations in the documentary.  Pepsi may have won the legal action but, depending on how you view things, arguably lost the Cola Wars.  Indeed, the Garage Bar menu includes Jack & Coke, no substitutions.

Monday Morning Honors #267

Michael Leave a comment

Happy Monday! Last full week before the holidays.  Make the most of it!

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

Honor Roll

Answers

Rules

  • None.  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

Consider the following:

  • Thoroughness, preparation, legal knowledge, and skill.
  • Well-being.
  • Staying abreast of developments in the law, including the risks and benefits of technology.

Each is an aspect of the duty of ________.

COMPETENCE.   V.R.Pr.C. 1.1 sets out the duty of competence and defines it to include the thoroughness, preparation, legal knowledge, and skill required for the representation.  Comment 8 addresses the duty to stay abreast of the risk and benefits of relevant technology, while Comment 9 discusses well-being as an aspect of competence.

Question 2

Here’s a comment to one of the rules:

  • “A lawyer entitled to a fee is permitted by paragraph (c)(3) to prove the services rendered in an action to collect it.  This aspect of the rule expresses the principle that the beneficiary of a fiduciary relationship may not exploit it to the detriment of the fiduciary.”

Which of the 7 Cs of Legal Ethics is the subject of the rule that this comment accompanies?

CONFIDENTIALITY.  The quoted language is from Comment 13.

Question 3

Fill in the blank.

There’s a rule that prohibits ex parte communication with two groups of people. One group includes judges and any “other person acting in a judicial or quasi-judicial capacity in a pending or impending adversary proceeding.”   The other group includes current and prospective _____________.

JURORS.  V.R.Pr.C. 3.5(b)(2).

Question 4

I rarely receive inquiries about this rule, but the topic it addresses is one that many lawyers find frustrating in opposing counsel.  A comment to the rule suggests that a violation likely turns on “whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay.”

What’s the name of the rule?

  • A.  Expediting Litigation.  V.R.Pr.C. 3.2
  • B.  Conflicts of Interest: Current Clients: Specific Rules.
  • C.  Declining or Terminating Representation.
  • D.  Meritorious Claims and Contentions.

Question 5

Today’s question is about a movie that is 30 years old.  However, the lead role was played by an actor who is going to finish as Hollywood’s top paid star of 2022, reportedly earning more than $100 million for a movie that was released this spring.

The 1992 movie included several memorable courtroom scenes.  In one, a member of the 3-lawyer defense team objected to testimony and asked that it be stricken from the record.  The following exchange ensued:

  • Judge:  The objection is overruled counsel.
  • Lawyer:  Sir, the defense strenuously objects and requests a meeting in chambers so that his honor might have an opportunity to hear discussion before ruling on the objection.
  • Judge: The objection is overruled counsel.

A few moments later, the court went into recess.  Annoyed with the lawyer, co-counsel asked:

  • “I strenuously object? Is that how it works?” 

Then, to drive home the point, co-counsel pretended to be both lawyer and judge in this scenario:

  • Lawyer:  Objection.
  • Judge:  Overruled.
  • Lawyer:  No, no, no, no I strenuously object.
  • Judge: Oh, well if you strenuously object, let me take a moment to reconsider.

Later, in the movie’s famous climactic scene, the leading character – and leader of the defense team — asked a key witness “did you order the ____   ____?” The judge told the witness that the witness did not have to answer. The witness answered anyway. 


If they were real-life lawyers, the defense team would probably be doing something today to observe Veterans Day.

What had the witness ordered?  A CODE RED (The movie is A Few Good Men)

Bonus: name the 2022 movie that starred the 1992’s movie’s lead, albeit not as a lawyer. It’s another movie whose characters likely observe Veterans Day.

TOP GUN – MAVERICK.  Tom Cruise starred in both.

Monday Morning Honors #266

Michael Leave a comment

Happy sunny Monday!

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

Honor Roll

Answers

Question 1

This week, the ABA Standing Committee on Ethics and Professional Responsibility issued an advisory opinion in which it concluded that a lawyer who includes a client on an electronic communication to opposing counsel has:

  • A.  not impliedly consented to a “reply all.”
  • B.  impliedly consented to “reply all.”  See, this blog post.

Question 2

Which does the Vermont rule treat different from the others. 

  • A.  a certified check issued by a federally insured bank.
  • B.  a check drawn on an IOLTA account of a Vermont licensed attorney that exceeds $25,000.
  • C.  a check issued by an insurance company that is licensed to do business in Vermont that exceeds $250,000.
  • D.  a personal check that exceeds $1,000.

V.R.Pr.C. 1.15(f) prohibits a lawyer from disbursing from trust without “collected funds.”  The rule defines “collected funds” as “funds that a lawyer reasonably believes have been deposited, finally settled, and credited to the lawyer’s trust account.”

Paragraph (g) lists several instruments that a lawyer may presume constitute “collected funds” upon deposit.  Answers A, B, and C are among those listed. 

“D” is the correct answer because Rule 1.15(g)(5) only provides a safe harbor “when the deposit is a person check or checks in an aggregate amount that does not exceed $1,000 per transaction.”

Question 3

Lawyer received a letter from a former client who is not represented by counsel. In the letter, Former Client alleges that Lawyer committed malpractice.  Later, Lawyer agreed to pay, and Former Client agrees to accept, $X to resolve the claim.  By rule, before resolving the dispute, Lawyer must _______:

  • A.  Notify Disciplinary Counsel.
  • B.  Confirm the agreement in a writing that signed by the client.
  • C.  A & B.
  • D.  Advise Former Client in writing of the desirability of seeking independent legal counsel, and give Former Client a reasonable opportunity to do so.  V.R.Pr.C. 1.8(h)(2).

Question 4

When representing a client, can a lawyer ask a person other than the client to refrain from voluntarily giving relevant information to another party?

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

Question 5

In July, the State Bar of California disbarred Tom Girardi.  Earlier this week, the State Bar released a letter in which it revealed that, over the past 40 years, it had opened 205 investigations into Girardi and that “approximately 120 involved allegations related to trust account violations.” According to a news report:

  • “The State Bar noted that the handling of Tom’s disbarment ‘brought to light serious failures in the State Bar’s attorney discipline system’ which ‘have contributed to a lack of confidence in the State Bar’s ability to carry out our core responsibility of protecting the public.’

‘There is no excuse being offered here,’ the letter continued. ‘Girardi caused irreparable harm to hundreds of his clients, and the State Bar could have done more to protect the public.’

The agency also vowed to ‘never allow something like this to happen again.’”

In 1990s, Girardi helped a law clerk and residents of a California town who had complained about contaminated drinking water settle a case in which Pacific Gas & Electric agreed to pay $333 million.  

Name the movie that the case inspired:  ERIN BROKAVICH

Bonus: in 2000, Girardi, then 60, married his third wife, then 28. Name the tv show in which both she starred, and he made several appearances.  REAL HOUSEWIVES OF BEVERLY HILL.

Monday Morning Honors #265

Michael Leave a comment

Happy Halloween!

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

How about one last look at The First Brother pulling off history’s greatest performance as spinach (with kudos to my mom for the concept):

And, special kudos to Cary Dube.  Cary and her mom, Priscilla, are practicing members of the Vermont bar.  Cary was the only brave soul to share a pic from a Halloween past!  Here are the Dubes:

Honor Roll

  • Karen Allen, Karen Allen Law
  • Matthew Anderson, Pratt Vreelend Kennelly White
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, UIC School of Law
  • Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labor
  • Heather Devine, Tarrant Gillies Shems
  • Cary Dube, Bergeron Fitzpatrick & Paradis
  • Benjamin Gould, Paul Frank + Collins
  • Robert Grundstein
  • Glenn Jarrett, Jarrett/Hoyt
  • Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
  • Jeanne Kennedy, Mother (of the) Blogger, JB Kennedy Associates
  • John T. Leddy, McNeil, Leddy, Sheehan
  • Pam Loginsky, Deputy Prosecuting Attorney, Pierce County, Tacoma, WA
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeffrey Messina, Messina Law
  • Hal Miller, Hawaii Agency Underwriting Counsel, First American Title Insurance
  • Herb Ogden
  • James Remsen, Master Planner, Parker & Hannafin
  • Keith Roberts, Darby Kolter & Roberts
  • Robyn Sweet, Risk Management Specialist, Rutland Regional Medical Center
  • Jason Warfield, J.D.

Answers

Question 1

This week is National Celebrate Pro Bono Week.  Citing one of the 7Cs of Legal Ethics, lawyers often express reluctance to do pro bono work. There’s no need to fear! Indeed, here’s one of the comments to the rule that sets out the duty that lawyers worry that they might violate if they take a pro bono case in a practice area with which they’re not too familiar.  Which C?

  • “A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar.  Some important legal skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study.”

COMPETENCE.  V.R.P.C. 1.1, Cmt. [2].  The VBA offers LOADS of practice area training that is aimed at lawyers looking to do pro bono work.  Much of the training is available via archived video.  For more information, contact Kim Velk or Mary Ashcroft.

Question 2

Which is in a different rule than the others?

  •  A.  Same or substantially related matter.
  •  B.  Materially adverse interests.
  •  C.  Informed consent, confirmed in writing.
  • D.  Remonstrate with the client and, if necessary, take reasonable remedial measures.

Options A, B, C are part of V.R.Pr.C. 1.9(a)’s standard for former client conflicts.  D, the correct answer, is what V.R.Pr.C. requires of a lawyer when the lawyer comes to know the falsity of material evidence offered by the lawyer, the lawyer’s client, or a witness called by the lawyer.

Question 3

There’s a rule that includes an exception for when a person is seeking a second opinion.  The rule addresses _______:

  • A.  conflicts of interest.
  • B.  the situations in which a fee agreement must be reduced to writing.
  • C.  communicating with a represented person.
  • D.  advertising & client solicitation.

V.R.Pr.C. 4.2 prohibits a lawyer from communicating with a represented person on the subject of the representation.  There is an exception when the represented person contacts a lawyer who is not otherwise involved in the matter for a second opinion.

Question 4

Attorney referred Client to Lawyer.  Lawyer completed the representation and billed Client.  Lawyer and Attorney have agreed that, given the referral, Lawyer will share the fee with Attorney.  What else must happen?

  • A.   The overall fee must be reasonable, and client must agree in writing to the division.
  • B.   Lawyer and Attorney must divide the fee in proportion to services rendered, or each must have agreed to accept joint responsibility for the representation.”
  • C.   A & B.  V.R.Pr.C. 1.5(e) and last week’s post Thinking about a referral fee? Think “fee division” instead.
  • D.  Neither A nor B.

Question 5

In 1993, Tom Hanks won the Academy Award for Best Actor for his performance in Philadelphia.  In the movies, Hanks’ character had a lawyer named Joe Miller.  The lawyer attended a Halloween party in which his “costume” was printouts of statutes taped to his work outfit.

The character who played the lawyer had previously won the Academy Award for Best Supporting Actor in a movie set during the Civil War and would later win the Academy Award for Best Actor for his portrayal of an unethical police officer.  In 2018, he was nominated for the Best Actor Oscar for a movie in which he played a lawyer who impermissibly disclosed confidential information related to the representation of a client in order to collect the award for providing information that would lead to the arrest of someone wanted by law enforcement.

Name the actor. Bonus: what was his Halloween costume in Philadelphia?

Denzel Washington played Attorney Joe Miller in Philadelphia.  For Halloween, he was a “law suit.”

Monday Morning Honors #264

Michael

Happy Monday.

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

Honor Roll

Answers

Question 1

Next week is National Celebrate Pro Bono Week.  The Rules of Professional Conduct include a series of rules that address pro bono work.  One of those rules makes clear that other rules are somewhat relaxed for lawyers who, with no expectation of continued representation, offer short-term legal services at programs sponsored by a court or non-profit.

What’s the topic of the rules that are somewhat relaxed?

CONFLICTS.  V.R.Pr.C. 6.5:

“(a) A lawyer who, under the auspices of a program sponsored by a nonprofit organization or court, provides short-term limited legal services to a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter:

  • is subject to Rules 1.7 and 1.9(a) only if the lawyer knows that the representation of the client involves a conflict of interest; and

(2) is subject to Rule 1.10 only if the lawyer knows that another lawyer associated with the lawyer in a law firm is disqualified by Rule 1.7 or 1.9(a) with respect to the matter.

(b) Except as provided in paragraph (a)(2), Rule 1.10 is inapplicable to a representation governed by this rule.”

PS: for information on how to participate in pro & low bono programs, go here or email Mary Ashcroft, the VBA’s wonderful Legal Access Coordinator.  Mary has announced her retirement.  Mary – thank you for you all that you’ve done for Vermonters and to increase access to both justice and legal services!

Question 2

Here’s language from the comment to a rule.  Fill in the blank. Hint: it’s 4 words, one of which is one of the 7Cs of Legal Ethics.

“In such situations, the advocate’s proper course is to remonstrate with the client confidentially, advise the client of the lawyer’s duty of CANDOR TO A TRIBUNAL and seek the client’s cooperation with respect to the withdrawal or correction of the false statements or evidence.”

See, V.R.Pr.C. 3.3, Cmt. [10].

Question 3

By rule, what is required to be “communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation?”

  • A.   Whether the lawyer has malpractice insurance and, if so, the policy limits.
  • B.   Whether the lawyer has designated a successor to review and triage files if the lawyer becomes incapacitated during the representation.
  • C.   The basis or rate of the lawyer’s fee, and expenses for which the client will be responsible, except when the lawyer will charge a regularly represented client on the same basis or rate. V.R.Pr.C. 1.5(b).
  • D.  All the above.

Question 4

A dispute involving New York’s version of a rule made national headlines this week, even bringing legal ethics to the sports pages.  Here’s a comment to Vermont’s version of the rule.  The SAME word correctly fills in each blank.  What word?

“In the case of a represented__________, this rule prohibits communications with a constituent of the _________  who supervises, directs or regularly consults with the __________’s lawyer concerning the matter or has authority to obligate the __________ with respect to the matter or whose act or omission in connection with the matter may be imputed to the ________ for purposes of civil or criminal liability.”

“ORGANIZATION.” See, V.R.Pr.C. 4.2, Cmt. [7]. And this blog post.

Question 5

In 2015, the Wisconsin Supreme Court suspended a lawyer for 60 days for misconduct that occurred while the lawyer was representing a client who hired the lawyer to assist in recovering money spent on John Lennon memorabilia that turned out to be fake.

Four years earlier, in an article about a different client, the Milwaukee Journal Sentinel quoted the lawyer as referring to a deceased former client as “an aberration of a human being that comes around about once every 50 years and does a hell of a lot of damage.” According to the paper, the lawyer added that the deceased former client was “the wimpiest guy I ever met.”

In 1992, and before the client died in prison, a jury rejected the lawyer’s evidence and argument that the client was insane at the time of the client’s depraved and horrific crime spree that spanned more than a decade.

The deceased client is the subject of two relatively new Netflix productions. One, a documentary, is the 4th most watched show on Netflix this month. The other, a dramatized version of the client’s crimes and trial, is the 2nd most watched. Variety reported that in the week that followed the dramatized version’s September release, the show “was the 10th most-streamed program ever recorded in a single week in Nielsen history.”

Honestly, watching the dramatized version, I was so repulsed/disturbed/scared that I had trouble making it through the opening scene.

Name the deceased former client.

Jeffrey Dahmer.   

Monday Morning Honors #262

Michael

Happy October! 

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

Honor Roll

Answers

Question 1

Which “C” rule includes exceptions for a lawyer to make an inquiry of bar counsel, as well as to secure legal advice about the lawyer’s compliance with the Rules of Professional Conduct?

CONFIDENTIALITY.  See, V.R.Pr.C. 1.6(c).

Question 2

There’s a rule that imputes a lawyer’s conflicts of interest to all other lawyers in the same firm. The rule does not apply to a particular group of lawyers. Rather, it specifically states that “disqualification of lawyers associated in a firm with former or current _____________ is governed” by a different rule.  The rule that applies to this group creates a relaxed imputation standard.  One reason for the relaxed standard is to ensure that lawyers are attracted to work in this group. 

What group? Former or current __________:

  • A.  law professors.
  • B.  government attorneys.  See, V.R.Pr.C. 1.10(d), referring to V.R.Pr.C. 1.11
  • C.  legislators.
  • D.  All the above.

Question 3

Two days ago, the ABA Standing Committee on Ethics and Professional Responsibility issued an advisory ethics opinion.  The opinion focused on whether a lawyer who self-represents is a “party” or is “representing a client.” After reading the opinion, I wondered if Vermont should amend its rule.  What did the opinion address?

Whether self-represented lawyers:

  • A.  can count the work as “pro bono.”
  • B.  are subject to the rule that prohibits communication with a represented person without the consent of the represented person’s lawyer.  See, this blog post.  The post generated significant feedback.  Then, we had an interesting discussion of this topic during my seminar at the VBA meeting on Friday.  There’s an impetus to explore a rule change.
  • C.  have standing to file a disciplinary complaint against themselves for lack of competence or diligence.
  • D.  before proceeding, must get informed consent from themselves due to the inherent conflict in being both lawyer and client.

Question 4

With respect to tech competence, last week the Virginia Supreme Court approved an advisory opinion that concluded that a lawyer who does this creates a risk “that the lawyer’s client will respond in a way that the lawyer would not advise or desire.”

Does what?

Include a client on an email to opposing counsel.  See, this blog post.

Question 5

95 years ago today, George Herman Ruth, Jr. became the first major league baseball player to hit 60 home runs in a single season.  Four years later, he lost a legal case.  A patent court ruled that, contrary to the slugger’s claim, a popular product had, in fact, been named after President Grover Cleveland’s daughter.

As of right now, I’m leaning towards including the product in a blog that I post at the end of October with my updated product rankings for a certain holiday.

Name the product.

The Baby Ruth candy bar.

Monday Morning Honors #261

Michael

Happy Monday! 

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

Honor Roll

  • Evan Barquist, Montroll Oettinger & Barquist
  • Alberto Bernabe, Professor, UIC School of Law
  • Beth DeBernardi, Administrative Law Judge, Vermont Department of Labor
  • Benjamin Gould, Paul Frank + Collins
  • Robert Grundstein
  • Keith Kasper, McCormick, Fitzpatrick, Kasper and Burchard
  • John T. Leddy, McNeil, Leddy, Sheehan
  • Pam Loginsky, Deputy Prosecuting Attorney, Pierce County, Tacoma, WA
  • Kevin Lumpkin, Sheehey Furlong & Behm
  • Brad Martin, Baystate Financial
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeffrey Messina, Messina Law
  • Hal Miller, Hawaii Agency Underwriting Counsel, First American Title Insurance
  • James Remsen, Master Planner, Parker Hannafin
  • Keith Roberts, Darby Kolter & Roberts
  • Jason Warfield, J.D.
  • The Honorable John Valente, Vermont Superior Judge
  • Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

Which of the 7 Cs of Legal Ethics refers specifically to funds & property?

COMMINGLING.

Tip:  V.R.Pr.C. 1.15(a) requires a lawyer to keep funds & property of clients and third persons separate from the lawyer’s own.  There is an exception for funds deposited in trust “for the sole purpose of paying service charges or fees on [the] account, but only in an amount necessary for that purpose.”  The most common cause of “commingling” a lawyer’s failure to remove an earned fee from trust.  Remember: as I pointed out in Trust Accounting in a Nutshell, commingling can also result from improper handling of a fee that is paid in advance and that complies with Rule 1.5(f).

Question 2

Lawyer called me with an inquiry.  I listened, then responded “one of the situations that requires it is when continued representation will result in a violation of the Rules of Professional Conduct.”

Given my response, what does “it” refer to?  Whether Lawyer must _______:

  • A.   self-report to Disciplinary Counsel.
  • B.   disclose confidential information over a client’s objection.
  • C.   withdraw from representing a client.  V.R.Pr.C. 1.16(a)(1).
  • D.   put Lawyer’s malpractice insurance carrier on notice of a potential claim.

Question 3

Attorney represents Client.  At the outset of the relationship, Client advanced a fee that Attorney billed against.  When the matter resolved, Client was so pleased that Client lauded Attorney’s virtues in a public comment posted to Attorney’s firm’s social media page.

What do the rules require Attorney to keep for 6 years?

  • A.  Client’s confidences and secrets.
  • B.  Records of funds held on behalf of Client.  V.R.Pr.C. 1.15(a)(1).
  • C.  A “copy’ of the social media page because it’s an “advertisement.”
  • D.  A copy of Client’s file.

Answer (A) is not correct.  Unless disclosure is permitted or required by the rules, a former client’s confidences must be kept forever.

Answer (C) is not correct. The rule requiring lawyers to keep copies of advertisements was repealed long ago. And, when it was in place, it required ads to be kept for 2 years.

Answer (D) is not correct.  There is no requirement for a lawyer to keep a “copy” of a client’s file.  Rather, Rule 1.169d) requires a lawyer to deliver “papers and property” to which the client is entitled upon the termination of the representation. 

Question 4

There are two types of cases in which a contingent fee is prohibited.  Name them.

  • V.R.Pr.C. 1.5(d)(2) prohibits a contingent fee for representing a defendant in a criminal case.
  • V.R.Pr.C. 1.15(d)(1) prohibits a fee “which is contingent upon the securing of a divorce or upon or upon the amount of spousal maintenance or support, or property settlement in lieu thereof.”

NOTE: the rule ALLOWS contingent fees “in domestic relations matters which involve the collection of (i) spousal maintenance after a final judgment is entered, or (ii) child support and maintenance supplement arrearages due after final judgment, provided that the court approves the reasonableness of the fee agreement.  This can be an excellent tool to provide access to legal services.

Question 5

Earlier this week, the Academy of Arts & Television continued its embarrassing tradition of snubbing Better Call Saul.  Yet again, the show did not receive a single Primetime Emmy.  In protest, and because Jimmy McGill/Saul Goodman is my favorite ethically challenged fictional lawyer, I’m devoting Question 5 to the show for the second time in three quizzes. 

Doing so is quite timely.  Tomorrow is ___________ Day.  The word that properly fills in the blank is quite relevant to the legal profession.  It’s also the answer to this question:

In both Better Call Saul and Breaking Bad, what’s on the wallpaper in Saul’s office? 

Here’s a hint that might help people who have never seen the show.

Today is September 16. On this day in 1830, Oliver Wendell Holmes, Sr. (father of Supreme Court Justice Oliver Wendell Holmes, Jr.) wrote a poem. The poem is widely considered to have saved a US Naval vessel from being decommissioned. The vessel, which is now the oldest commissioned ship in the navy, is named after the answer to Question 5.

Saul’s wallpaper shows The Constitution of the United States.   Saturday was Constitution Day.  And Oliver Wendell Holmes’s Old Ironsides is a poem about the USS Constitution.

Monday Morning Honors #260

Michael

Happy Monday! 

Thanks to all who wished the First Brother well!  He made it from Dunmore to Gettysburg, where he’ll spend this week camping near the battleground before continuing the trek to Savannah on Friday. 

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

Honor Roll

  • Evan Barquist, Montroll Oettinger & Barquist
  • Alberto Bernabe, Professor, UIC School of Law
  • Amy Butler, Amy Butler Law
  • Robert Grundstein
  • Keith Kasper, McCormick, Fitzpatrick, Kasper and Burchard
  • Jeanne Kennedy, JB Kennedy Associates, Mother (of the) Blogger
  • Patrick Kennedy, Amazon Web Services, First Brother
  • John T. Leddy, McNeil, Leddy, Sheehan
  • Pam Loginsky, Deputy Prosecuting Attorney, Pierce County, Tacoma, WA
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Susan McManus, Office of the Public Defender, Bennington County
  • Jeffrey Messina, Messina Law
  • James Remsen, Master Planner, Parker Hannafin
  • Keith Roberts, Darby Kolter & Roberts
  • James Runcie, Ouimette & Runcie
  • Nikki Stevens, Firm Administrator, Langrock Sperry & Wool
  • Jonathan Teller-Elsberg, Sheehey Furlong & Behm
  • Jason Warfield, J.D.
  • Jack Welch, Esq.
  • Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

Of the 7Cs of Legal Ethics, which specifically mentions “information related to the representation” in the rule that governs that C?

CONFIDENTIALITY.  V.R.Pr.C. 1.6(a) states that “a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation, or the disclosure is required by paragraph (b) or permitted by paragraph (c).

The phrase “information related to the representation” is important.  Remember, as Comment [3] makes clear, Rule 1.6 “applies not only to matters communicated in confidence by the client, but to all information relating to the representation, whatever the source.”

Question 2

Yesterday I blogged about an order in which a New York trial judge sanctioned lawyers for uncivil and obstructive conduct during a deposition. 

Let’s imagine a similar incident involving a deposition that’s taken in a Vermont matter.  One of Vermont’s Rules of Professional Conduct makes it a violation for a lawyer to “engage in undignified or discourteous conduct which is degrading or disruptive to a tribunal.” 

Does the rule apply at a deposition?

  • A.           No.  A comment to the rule specifically leaves control of depositions to the trial courts.
  • B.           No, but a comment to the rule cautions lawyers against conduct that would be prohibited in court.
  • C.           Yes.  This is Rule 3.5(d).  As Comment [5] points out, the rule applies to “any proceeding of a tribunal.”  Rule 1.0(m) includes defines “tribunal” to include a deposition.

Question 3

Fill in the blank.  The same word goes in each blank.  What is it?

There’s a rule that sets out a lawyer’s duties when dealing with an __________ person.  The duties include not stating or implying that the lawyer is “disinterested,” and correcting any misunderstanding that the lawyer knows or reasonably should know that the __________ person has about the lawyer’s role.  A comment to the rule states that the “rule does not prohibit a lawyer from negotiating terms of a transaction or settling a dispute with the __________ person.”

Unrepresented.  This is V.R.Pr.C. 4.3.

Question 4

Lawyer called me with an inquiry.  I listened, then responded that “a comment to the rule, states that ‘matters are substantially related if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the new matter.’”

Lawyer didn’t contact me to discuss confidentiality.  Rather, given my response, Lawyer contacted me because Lawyer was concerned about, what?

A CONFLICT OF INTEREST between a client (or prospective client) and a former client.  V.R.Pr.C. 1.9 prohibits a lawyer from representing a client whose interests are materially adverse to the interests of a former client in a matter that is the same as or substantially related to the matter in which the lawyer represented the former client.

Question 5

When the First Brother arrives in Savannah, he’ll be just over 200 miles southeast of Monticello, GA.  A movie that the American Bar Association has ranked as one of the Top 3 of all-time was filmed in Monticello. 

While most fans associate the movie with a neighboring state and its mud, in fact, the convenience store and courthouse that feature so prominently in the film are in Georgia.  In 2019, then federal judge Merrick Garland wrote an opinion in which he made numerous references to the movie, including a statement that the lead character “taught a master class in cross-examination.”

Name the movie.

MY COUSIN VINNY.

The Sac-O-Suds and Jasper County Historic Courthouse are in Monticello, Georgia.