Monday Morning Answers: #137

Welcome to Monday.  Friday’s questions are here.  (Yes, Clemson won!) The answers follow today’s honor roll.


Honor Roll

  • Karen Allen
  • Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labor
  • Cary DubeBergeron, Paradis, Fitzpatrick
  • Bob Grundstein
  • Tammy Heffernan
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy, Mom of the Blogger
  • Jordana LevineMarsicovetere & Levine
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Kevin LumpkinSheehey Furlong & Behm
  • Lon McClintock
  • Jeff MessinaBergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Jim Runcie, Ouimette & Runcie
  • Jay Spitzen, Esq.



Question 1

Lawyer called me with an inquiry. I listened, then said: “the rule says that your first duty is to try to maintain as normal an attorney-client relationship as possible.”

Given my statement, it’s most likely that Lawyer called out of concern that:

  • A.  Lawyer’s client suffered from a diminished capacity.  See, Rule 1.14(a).
  • B.  Lawyer’s client had presented false evidence to a tribunal
  • C.  Lawyer’s client had used Lawyer’s services to perpetuate a fraud
  • D.  Lawyer’s client had given false testimony in a deposition.

Question 2

Which is associated with a different rule or set of rules than the others?

  • A.  Commingling
  • B.   Qualitative Comparisons.
  • C.   Disbursements
  • D.  Held in connection with a representation

Generally, the advertising rules prohibit “qualitative comparisons” to other lawyers or firms.  Choices A, C & D are phrases associated with the trust accounting rules.

Question 3

As in all cases, the rules prohibit unreasonable fees in divorces & criminal cases.

With respect to fees, the rules also prohibit something else in divorces and criminal cases.

What is it?

Contingent fees.  Rule 1.5(d).

Question 4

Prospective Client meets with you.  Prospective Client indicates that Lawyer represents her, but that she wants a second opinion from you.

True or False:  the rules prohibit you from discussing the matter with Prospective Client absent Lawyer’s consent.

FalseRule 4.2, Comment[4].  Per the Reporter’s Note to the 2009 Amendments, “a new sentence clarifies that Rule 4.2 does not preclude communication with a represented person who is seeking a second opinion from a lawyer who is not representing a party in the matter.”

Question 5

Speaking of the Heisman Trophy . . .

. . .in 1962, President Kennedy nominated Byron White to the United States Supreme Court.  Justice White served until 1993, with Justice Ruth Bader Ginsburg replacing White upon his retirement.

25 years before being appointed to the Supreme Court, Justice White finished 2nd in the Heisman Trophy voting. He was an outstanding running back for the University of Colorado.  He’s the only US Supreme Court justice who also received votes in the Heisman race.

Justice White’s football skills resulted in a famous nickname.

What’s the nickname?

Byron “Whizzer” White was an All-American halfback and Heisman Trophy runner-up for the Colorado Buffalos.


Monday Morning Answers – #136

Welcome to Monday!

By the way, in my opinion, the foliage is sneaky good late in the season.

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

Honor Roll


Question 1

There’s a type of representation that most lawyers believe is mandated by the Rules of Professional Conduct.  It isn’t.

What “Z” word is no longer part of the rules?

Zealous.  In 1999, it was replaced with “competent.”  See, Rule 1.1.

Question 2

There’s a rule that prohibits lawyers from advising or assisting a client to violate the law.  In Vermont, the rule causes concern among lawyers who provide advice related to a particular product.  What’s the product?

Marijuana.  However, see Comment 14 to Rule 1.2.

Question 3

Fill in the blank.  It’s 2 words.

Lawyer called me with an inquiry. I listed, then responded “you can’t state a _________________  __________ as to the justness of the cause, credibility of a witness, culpability of a civil litigant, or guilt or innocence of an accused.”

Personal Opinion.  Rule 3.4(e)

Question 4

Which is associated with a different rule than the others?

  • A.   Single source
  • B.   Overdraft notification
  • C.   ACH transfers
  • D.   Lateral transfers

Lateral transfers are associated with the conflict rules.  The others are associated with trust accounting.

Question 5

The rules prohibit affirmative misstatements of material fact.

70 years ago tomorrow, at least one US newspaper (in)famously ran a headline that, in gigantic type, contained the same affirmative misstatement of a material fact.  The misstatement referred to a lawyer who’d first made a name for himself by prosecuting mafia figures, including Charles “Lucky” Luciano.

Believe it or not, this ties to the Red Sox.  The lawyer died in 1971. One of the very last things he did before dying was play a round of golf with Red Sox legend Carl Yastrzemski.

Name the lawyer.

Thomas Dewey.  And the famous headline is here:

See the source image

Monday Morning Answers #135

Welcome to Monday!

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

Honor Roll



Question 1

Fill in the blanks.  The same phrase goes in each blank.

When providing pro bono legal services, a substantial majority of the 50 hours should be provided to persons of limited means or certain organizations designed to serve persons of limited means.

That’s the phrase in Rule 6.1  For a definition, see Comment [3].

Question 2

This is a “what am I” question:

  • In Bar Counsel Universe, I’m often referred to as “unbundled legal services;”
  • I am a way to help provide access to legal services for those who might not be able to afford a lawyer.
  • I am specifically authorized by Rules for Family Proceedings and the Rules of Civil Procedure
  • I am specifically authorized by the Vermont Rules of Professional Conduct
  • Under the Rules of Professional Conduct, I am allowed only if (a) I am reasonable under the circumstances, and (b) the client gives informed consent.

What am I?

I ama limited representation.  See, Rule 1.2(c).

Question 3

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

“it’s ok as long as:

  1. Client gives informed consent;
  2. there’s no interference with your professional judgment or your relationship with Client; and,
  3. you don’t share any information about the representation with Other absent Client’s consent.”

What is Other’s involvement with this situation?

Other is paying Lawyer.  See, Rule 1.8(f).

Question 4

Later today, I’m speaking to the New Hampshire Association of Criminal Defense Lawyers.

For a criminal defense lawyer, which rule should spring to mind if a plea deal is conditioned upon the lawyer’s client waiving claims of ineffective assistance of counsel?  The rule on:

  • A.   Candor to the Tribunal
  • B.    Meritorious Claims & Contentions
  • C.    Client Confidences
  • D.   Conflicts of Interest

Several advisory opinions have reached the same conclusion: the criminal defense lawyer’s personal interests conflict with the client’s and, in addition, implicate the rule that prohibits a lawyer from asking a client to agree to limit the lawyer’s liability unless the client is represented by counsel.  See, Rules 1.7(a)and 1.8(h). For more, see Pennsylvania Bar Association Formal Opinion 2014-100, provided by Thomas Wilkinson, a regular member of the honor roll.

Question 5

Speaking of Vermont & New Hampshire . . .

In 2012, Tommy Lee Jones was nominated for the Academy Award for Best Supporting Actor. The nomination was for his role in Lincoln.  He played a Pennsylvania lawyer who was elected to Congress as a “Radical Republican,” chaired the Ways & Means Committee during the Civil War, and whose fierce opposition to slavery was instrumental in the passage of the 13th and 14th Amendments.

My favorite quote attributed to him? As a trial lawyer, and in response to a judge who warned that he was manifesting contempt: “Sir, I am doing my best to conceal it.”

Oh, by the way, the Pennsylvania lawyer was born and raised in Vermont, then attended college in New Hampshire.

Thaddeus Stevens.

Monday Morning Answers: #133

Good morning!

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

Honor Roll


Question 1

There’s a rule that includes a “self-defense” exception for lawyers.  But for the exception, what does the rule generally prohibit?

  • A.  Punching clients.  .
  • B.  Representing a family member.
  • C.  Unauthorized disclosure of confidential information.
  • D.  Unauthorized disbursements from trust.

The exception is in Rule 1.6(c)(3).  It permits an attorney to disclose otherwise confidential information:

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

N.B. – a negative online review is NOT a controversy, civil claim, or proceeding as contemplated by the rule.  For more, see this post.

Question 2

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.
  • B.  a prospective juror
  • C.  an opposing party who mistakenly emailed Lawyer
  • D.  a current client

Rule 1.18 is the rule on prospective clients.  Per Rule 1.15(c), a lawyer if the lawyer obtained information that could be significantly harmful to the person who met with but did not hire the lawyer, the lawyer shall not represent a person whose interests are materially adverse to those of the prospective client in the same or substantially related matter.

Question 3

Lawyer refers Client to Attorney. Lawyer does no work on the matter and does not assume joint responsibility for it.  Under Vermont’s rules, Attorney:

  • A.   Must not share any portion of the fee with Lawyer.  Rule 1.5(e).
  • B.    May share the fee with Lawyer
  • C.    May share the fee with Lawyer, but only if Client consents
  • D.   Must report Lawyer to disciplinary counsel

Question 4

The phrase “reasonable remedial measures” is associated with the rules on:

  • A.  Competence & diligence
  • B.  Trust accounting
  • C.   Client confidences
  • D.  Candor to a Tribunal.   Rule 3.3(c) requires a lawyer to “take reasonable remedial measures, including, if necessary, disclosure to the tribunal” whenever the lawyer who represents a client in an adjudicative proceeding knows that a person intends to engage, is engaging, or has engaged in criminal or fraudulent conduct related to the proceeding.

Question 5

Lately, I’ve spoken often on lawyer wellness and the staggering rates at which substance abuse and other behavioral health issues affect lawyers.  Which reminds me of a lawyer named Dr. Gonzo . . .

Oscar Zeta Acosta was a real life American attorney, author, and activist. He disappeared in 1974 and hasn’t been seen since.

Acosta was good friends with a famous author.  2 trips that they took together inspired the author to write one of the most well-known novels on 1960’s counter-culture.  In it, the character Dr. Gonzo is based on Acosta.

Name the novel.

“You took too much man.  You took too much.”  Dr. Gonzo.

See the source image


Monday Morning Answers #132

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

Maybe it’s a good omen that, after Friday’s reference, Safety Dance played on the radio as I drove to work this morning.

Please see Question 4: I hope nobody guessed I’d make an untrue statement at a CLE!

Honor Roll


Question 1

Lawyer represented Kennedy.   During the representation, Lawyer held funds in trust for Kennedy.  The representation ended last week.  How long must Lawyer keep records of funds that were held in trust for Kennedy?

  • A.   1 year from the termination of the representation.
  • B.   6 years from the termination of the representation.  Rule 1.15(a)(1)
  • C.   The rules do not specify a retention period for trust account records.
  • D.   The rules do not specify a retention period for trust account records, but by case law it’s 7 years from the termination of the representation.

Question 2

Attorney represents Client.  Attorney received information relating to the representation of Client that Attorney knows was not intended to be sent to Attorney.  Under the Vermont Rules of Professional Conduct,

  • A.  Attorney must notify sender.  Rule 4.4(b)
  • B.  Attorney must ask Client for consent to notify the sender.
  • C.  Attorney must not read, review, or inspect the information.
  • D.  It depends. Who sent the information?

Question 3

Attorney called me with an inquiry. I listened, then said, “the rule says you can’t do it unless:

  1. the terms are fair & reasonable to the client, and fully disclosed in a writing that the client can understand;
  2. you advise the client, in writing, of the desirability of seeking independent legal advice, and give the client a reasonable opportunity to do so; and,
  3. the client gives informed consent, in a signed writing, to the terms, including whether you are representing the client in that matter.”

What did Attorney call to discuss?

  • A.  Settling a malpractice claim with a former client.
  • B.  Settling a malpractice claim with a current client.
  • C.  Entering into a business transaction with the client. Rule 1.18(a)
  • D.  The client’s application for an advance from a third-party litigation funding company.

Question 4

You are at a CLE.  Your hear me say “there is a rule of professional conduct that specifically prohibits (a) frivolous discovery requests; and, (b) the failure to make reasonably diligent efforts to respond to an adversary’s proper discovery requests.”

That statement is:

  • A.   True. Rule 3.4(d)
  • B.   Not exactly true, but there’s a rule that requires lawyers “to make reasonable efforts to expedite litigation” and, arguably, this conduct falls under that rule.
  • C.   False – but a violation of the civil, criminal, or family rules of procedure can rise to the level of a violation of the rules of professional conduct.
  • D.  Mike, wait . . lawyers make frivolous discovery requests and drag their feet responding to an opponent’s legitimate requests?

Question 5

Speaking of the advertising rules, Harvey is a television lawyer who often refers to himself as “the best closer in New York.”  Maybe he is, maybe he isn’t.

Perhaps his bigger ethical concern should be that he hired an associate, Mike, who he knew hadn’t graduated from college, gone to law school, or passed the bar exam. Well, never passed the bar exam while taking it as himself.  Mike had passed many times while being paid to take the bar exam for others.

In real life, both actors attended this summer’s biggest wedding.

Name the show.


See the source image

This summer, the actors that play Harvey Specter and Mike Ross attended co-star Meghan Markle’s wedding to Prince Harry.

See the source image



Monday Morning Answers #131

Happy Monday!

For those of you who venture to the NEK to bike or run, I highly recommend the Beebe Spur Rail Trail. I found it this weekend.  From the hospital, it’s just over 5 miles to the border.  Flat, packed gravel, beautiful views of Lake Memphramagog.  Or, add a few miles by parking downtown and using the Newport Rec Path to get to Beebe Spur. More great views.


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

Honor Roll


Question 1

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 makes clear that the rule encompasses more than the privilege.”

What was I talking about?

  • A. File delivery & work product
  • B.  Client confidences.  Rule 1.6(a), Comment [3].
  • C.  Storing client information in the cloud
  • D.  Inadvertent production of privileged information

Question 2

In Vermont, most conflicts are imputed from the conflicted lawyer to other lawyers in the same firm.

True or false: unlike other conflicts, imputed conflicts cannot be waived by the affected client.

FALSE.  Rule 1.10(c).

Question 3

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

  • “It depends. Did you receive information that could be significantly harmful to the person?”

Most likely, “the person” refers to:

  • A.  a former client of Lawyer’s
  • B.  a current client of Lawyer’s
  • C.  a prospective  client who met with, but did not retain, Lawyer.  Rule 1.18(c).
  • D.  opposing counsel

Question 4

How long must Vermont lawyers keep copies of advertisements?

  • A.   2 years
  • B.   6 years
  • C.   It depends. Print ads or electronic ads?
  • D.   They don’t.  The rule requiring retention of ads was repealed in 2009.

Question 5

As I mentioned above, 131 includes 3.1.   Rule 3.1 makes it a disciplinary violation to file a frivolous lawsuit.

One of the most misunderstood lawsuits of all time involved hot coffee and McDonald’s.  It’s not as frivolous as the legend that has grown around it would have you believe.

Anyhow, the suit served as the inspiration for an episode of a famous tv show in which one of the main characters sued Java World for burns that resulted from hot coffee.  Java World was prepared to make an opening offer of free coffee for life and $50,000.

The character & his lawyer showed up to meet with representatives from Java World and their attorney.  The Java World attorney said “we are prepared to offer you all the free coffee you want at any of our stores throughout North America and Europe, plus . . .”

Before he could finish, the character jumped from his seat, shook the Java World’s attorney’s hand and, without consulting with counsel, exclaimed “I’ll take it!!!!”

Name the character.

Cosmo Kramer, Seinfeld.  The scene is here.

Monday Morning Answers #130

Welcome to the week!  Friday’s questions are here.  Before I get to the Honor Roll & answers, it was great to see so many lawyers both participating in and volunteering at yesterday’s Pine Street Mile. Wellness is a thing.

Honor Roll


Question 1

There’s a rule that prohibits lawyers from making “a false or misleading communication about _____________.”   Per the rule, “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.”  It’s the rule on:

  • A.  Communicating with an Unrepresented Person
  • B.  Candor to a Tribunal
  • C.  Communications Concerning a Lawyer’s Services.  Rule 7.1.
  • D.  Puffery (Statements made in negotiations)

Question 2

Lawyer settled a PI claim on behalf of client.  The insurance company sent Lawyer a check.  Lawyer deposited the check into trust yesterday.  Client wants her money now, before the weekend.

Under Vermont’s rules, which is most accurate?

  • A.  Lawyer cannot disburse funds to client until the check clears.
  • B.  Lawyer violated the rules. The check should not have been deposited into trust.
  • C.  It depends on the terms of the fee agreement.
  • D.  If the insurance company is licensed to do business in Vermont, Lawyer can disburse in reliance upon the deposit, without waiting for the check to become “collected funds.”  Rule 1.15(g)(5).

Question 3

Lawyer called me with an inquiry.  My response included this statement:  “Even if you are ‘necessary,” the rule applies ‘at trial.’ And there’s an argument that it means ‘at a jury trial.’ ”

Given my response, Lawyer called to talk about the rule on:

  • A.  Representing an Organization
  • B.  Candor to a Tribunal
  • C.  Fairness to Opposing Party & Counsel
  • D.  Lawyer as a Witness.  Rule 3.7

Question 4

Fill in the blank.

There’s a rule on prospective clients.  Per the rule, if a prospective client consults with a lawyer in good faith, but no attorney-client relationship ensues, the lawyer’s duty of loyalty to the prospective client is relaxed.  However, the rule makes clear that the lawyer’s duty of confidentiality to the prospective client is not relaxed.

Confidentiality.  Rule 1.18(b).

Question 5

The rules require lawyers to reduce contingent fee agreements to writing.

Hollywood talent lawyers take a cut of their clients’ earnings.  Apparently, they don’t always reduce their fee agreements to writing.

Indeed, in late August, a California court voided a “handshake deal” between a movie star and the star’s lawyer.  The deal was made in 1999.  With it having been voided for not being in writing, the movie star is now seeking the return of approximately $30 million paid to the lawyer over the past 20 years.

Name the movie star.

Johnny Depp.  The ABA Journal has the story here.

See the source image

Monday Morning Answers – #129

Happy Labor Day!

Is it hot & humid?  Yes!  But, you have a choice how you respond to the weather.  One choice is to bemoan it & sit on the couch all day.  Another is to smile at the thought of one more day to wear shorts, flip-flops, and to be outdoors!  Maybe even by the grill with a cold beverage . . . on a Monday!

I choose the latter.

Friday’s questions are here.  The answers follow the honor roll.  Also, you’ll recall that I asked readers to share the events seared into their memories.  I did so in the context of Friday being the anniversary of Princess Diana’s passing.  As always with my readers, the response was fantastic and significantly outnumbered entries into the quiz.

The most-cited events were to be expected:

  • 9/11
  • the space shuttle Challenger tragedy

A few others mentioned by at least 3 people:

  • JFK assassination
  • Sandy Hook
  • MLK assassination
  • the moon landing
  • Princess Diana
  • Boston Marathon bombings
  • Barack Obama elected

Interestingly, but perhaps not surprisingly given the frequent musical references on this blog, many of you will never forget where you were & what you were doing when you learned that a musician died.  Among the musicians whose deaths were mentioned more than once:

  • Kurt Cobain
  • Jerry Garcia
  • John Lennon
  • Jim Morrison
  • Elvis Presley
  • Prince
  • Tupac Shakur

Anyhow, thank you again for sharing. I love your stories.  Alas, to make the honor roll, you’ve got to answer the questions!

Honor Roll

(responses had to include quiz answers to make the honor roll)


Question 1

Lawyer called me with an inquiry.  My response included the following words and phrases:  “knowledge,” “violation,”  “substantial question,”  and “honesty, trustworthiness, fitness.”

What did Lawyer call to discuss?

  • A.  Informing a court that a client had testified falsely in a civil matter.
  • B.  Informing a court that a criminal defense client had testified falsely.
  • C.  Reporting another lawyer’s misconduct.  See, Rule 8.3(a).
  • D.  Whether reciprocal discipline would be imposed in Vermont as a result of Lawyer being sanctioned in another state.

Question 2

The conflicts rules are NOT relaxed for:

  • A.  Lawyers who transfer from one private firm to another.
  • B.  Lawyers who move from government practice to private practice.
  • C.  Lawyers who provide short-term pro bono services under the auspices of a program sponsored by a nonprofit or court.
  • D.  All of the above.

Vermont’s rules do not allow for the automatic screening of lateral transfers.  I’ve blogged on that issue here & here.  Later this month, the PRB will consider a rule change that I’ve recommended that would allow a new firm to screen a lateral transfer from another firm.

Our rules allow for screening when a lawyer moves from government practice to private practice.  In addition, Rule 6.5 relaxes the conflicts rules for lawyers who provide short-term pro bono services under the auspices of a program sponsored by a nonprofit or court.

Question 3

You’re at a CLE.   You hear me say:  “yes, it’s okay as long as  (1) your client gives informed consent; (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and (3) information relating to the representation of your client is protected as required by Rule 1.6.”

What did someone ask if it was okay to do?

  • A.  Accept compensation for representing a client from someone other than the client.  See, Rule 1.8(f).
  • B.  Request that guardian be appointed for the client.
  • C.  Represent co-defendants in a criminal matter.
  • D.  Talk to the media in a client’s case.

Question 4

Client provides Lawyer with an advance payment of $2,000.  Lawyer has yet to do any work for Client.

Which is most accurate?

  • A.  The fee agreement must be confirmed in writing.
  • B.  The fee agreement must be confirmed in a writing that is signed by Client.
  • C.  The $2,000 must go into Lawyer’s pooled interest-bearing trust account (“IOLTA”).
  • D.  Lawyer may treat the money as Lawyer’s own if Lawyer confirms in writing (i) that the fee is not refundable; and (ii) the scope of availability or services that Client will receive.    See, Rule 1.5(f) & (g).

Here, A & B are not correct.  The rules do not require standard fee agreements to be reduced to writing.  That being said, I think it’s a bad idea not to.

C is not correct. There’s not enough information in the question to know.  For instance, if the lawyer has complied with Rule 1.5(f) and (g), then the money cannot go into trust.

Many lawyers charge “flat fees” that are “earned upon receipt” and treat the funds as their own upon receipt.  This is ok ONLY IF THE LAWYER COMPLIES WITH RULE 1.5(f) and RULE 1.5(g).  Otherwise, the money must go in trust until earned.

Question 5

Speaking of the JFK assassination . .  .

. . . Jules Mayer was a lawyer in Dallas.  In 1950, Mayer drew up a will for a client.  The will named Mayer as the executor the client’s estate.

The client died in 1967.  A dispute quickly arose, as the client’s family contended that the client had changed his will on his deathbed to remove Mayer as executor.  Mayer refused to make the change and kept the original will.

In 1991, after a lengthy legal battle, a probate court granted the family’s petition to remove Mayer as executor after concluding that he had mismanaged the estate.

Central to the dispute was gun associated with the JFK assassination.  Mayer’s client bought the gun for $62.50.   After winning their legal battle with Mayer, the client’s family sold the gun for $220,000.  Fortunately for the family, Mayer had safeguarded the gun, holding it in trust for 24 years.

Two-part question:

  1. Who was Mayer’s famous client?
  2. Who was the famous victim of the client’s gun?

Mayer’s client was Jack Ruby.  The gun was used on Lee Harvey Oswald.  A story of the gun is in this article in the Las Vegas Sun.

See the source image

Monday Morning Answers #128

It makes her think of me.

Friday’s reflection on fairs gone by is here.  The answers follow today’s honor roll.

But first, I spent some time in the NEK this weekend, running both around Island Pond and along Lake Willoughby. I’ve been up there often, but have never come over Bald Mountain from Island Pond to Willoughby.  The views from Sentinel Rock State Park are phenomenal!  I imagine the area is prime leaf peeping territory.

Sentinel Rock

Sadly, don’t wait too long!  The northern side of the mountain already has several patches of red . . .in AUGUST! I assume the early color is due to the dry summer. Alas, Willoughby itself was warm and as crystal clear as ever.  If you get a chance, it’d be a great spot to beat the heat the week!

Honor Roll


Question 1

Which belongs somewhere else than with the others?

A lawyer shall:

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

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

Question 2

True or false.

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

TRUE – Rule 3.2

Question 3

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

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

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

Question 4

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

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

Question 5

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

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

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

Name the sitcom.

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

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

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Monday Morning Answers: #127

Welcome to Monday.  It’s August 13th.

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

Honor Roll

  • Evan BarquistMontroll, Backus & Oettinger
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, John Marshall Law School
  • William V. Cristman, Jr.
  • Andrew Delaney, Martin & Associates
  • Bob Grundstein, Esq.
  • Anthony IarrapinoWilschek & Iarrapino
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy, JB Kennedy Associates, My Mom
  • Tom LittleLittle & Cicchetti
  • Kevin LumpkinSheehey Furlong & Behm
  • Hal Miller, First American
  • Lon McClintockMcClintock Law Offices
  • Jeff MessinaBergeron Paradis Fitzpatrick
  • Herb Ogden
  • Jody Racht, Assistant Attorney General
  • Jay Spitzen, Esq.


Question 1

Rule 1.2 makes it clear that the client controls the objectives of a representation, with the means by which those objectives are pursued left to the lawyer in consultation with the client. In addition, I often remind lawyers to set & manage client expectations, especially with clients who have unreasonably High Hopes.

With these thoughts in mind, I’ve used Sinatra to caution lawyers against taking the client who:

  • A.   Instructs the lawyer “thanks, but we’ll do it my way.”
  • B.   Calls, emails, or texts every day saying “call me!”
  • C.   Has a long list of ex-lawyers
  • D.  Can’t get no satisfaction

I warn about each of the 4.  But the key word in the question was “Sinatra.” As he sang, “I did it my way.”  B is the Blondie client, C is the Taylor Swift client (Blank Space), and D is the Rolling Stones client.

Question 2

Love and Marriage.

True or false.

The rules specifically prohibit an attorney from representing a client in a matter in which a person whose interests are adverse to the client’s is represented by the attorney’s spouse.

False.  But, see Comment 11 to Rule 1.7“When lawyers representing different clients in the same matter or in substantially related matters are closely related by blood, marriage, or civil union, there may be a significant risk that client confidences will be revealed and that the lawyer’s family relationship will interfere with boy loyalty and independent judgment. As a result each client is entitled to know of the existence and implications of the relationship between the lawyers before the lawyer agrees to undertake the representation.  Thus, a lawyer related to another lawyer, e.g. as a parent, child, sibling, spouse or civil union partner, ordinarily may not represent a client in a matter where that lawyer is representing another party unless each client gives informed consent.”

Question 3

Lawyer represents Organization.   Organization is governed by a board.

Do the rules allow Lawyer to represent Chairman of the Board individually in a matter in which Lawyer also represents Organization?

  • A.  No.
  • B.   Yes.
  • C.   Yes, subject to the normal conflicts rules.  See, Rule 1.13(g).
  • D.   Trick question.  By representing Organization, Lawyer automatically has an attorney-client relationship with the Chairman of the Board in his individual capacity.

Question 4

Lawyer meets with Client.  Client isn’t focused on the subject matter of the representation and, instead, repeatedly tells Lawyer things like “Come Fly With Me,” and “Fly Me to the Moon!”  Lawyer suspects that Client might suffer from a diminished capacity.

Under the rules, Lawyer’s initial duty is to:

  • A.   Withdraw
  • B.   Withdraw, unless Client agrees to a voluntary guardianship
  • C.   File for an involuntary guardianship
  • D.   As far as reasonably possible, maintain a normal client-lawyer relationship with client.  See, Rule 1.14(a).

Question 5

Sinatra won an Academy Award for Best Supporting Actor for a movie that was released in 1953.  He played a soldier who befriended a former boxer.  The former boxer resisted a superior’s efforts to get him to join the regiment’s boxing team.

According to Hollywood legend, the manner in which Sinatra obtained the role wouldn’t exactly comply with Rules 3.4 (fairness to opposing party & counsel) and 4.4 (respect for the rights of third persons). Indeed, legend has it that the famed “horse head in the bed” scene in The Godfatherrefers to the methods by which Sinatra obtained the role.

Name the movie, released in 1953, for which Sinatra won the Oscar for Best Supporting Actor.


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