Monday Morning Answers

Monday Morning Honors #230

Michael Leave a comment

Welcome to Monday.

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

Honor Roll

  • Karen Allen, Karen Allen Law
  • Evan Barquist, Montroll, Backus & Oettinger
  • Penny Benelli, Dakin & Benelli
  • Andrew Delaney, Martin, Delaney & Ricci Law Group
  • Glenn Jarrett, Jarrett & Luitjens
  • John Leddy, McNeil Leddy & Sheahan
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeff Messina, Bergeron, Paradis, Fitzpatrick
  • Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
  • Herb Ogden, Esq.
  • Keith Roberts, Darby Kolter & Nordle
  • Jim Runcie, Ouimette & Runcie
  • The Honorable John Valente, Vermont Superior Judge
  • Zachary York, Legal Assistant, Sheehey Furlong & Behm

 Answers

Questions 1 & 2

Everyone knows I often mention the 7 Cs of Legal Ethics.  Earlier this week, I spoke with student-clinicians at Vermont Law School’s South Royalton Legal Clinic.  Their quiz on the 7 Cs included this question:

  • “Let’s imagine that upon passing the bar you accept a job with a state agency. Your first assignment is familiar: it involves a matter you worked on while in the clinic.  Which 2 Cs of legal ethics jump to mind?”

The scenario is a variation of a scenario that can, and often does, confront any lawyer.  So, Friday readers have the same task: identify the 2 Cs of Legal Ethics implicated by the scenario.

Conflicts of Interest and Confidentiality

Question 3

 Your office employs Non-Lawyer.  In a new matter, Non-Lawyer has a conflict that, if Non-Lawyer were a lawyer, would prohibit Non-Lawyer from accepting the representation.  Which is most accurate?

  • A. Non-Lawyer’s conflict is imputed to all lawyers in the office and the office must decline the representation.
  • B. Non-Lawyer’s conflict is imputed, but only to any lawyer in the office who regularly supervises Non-Lawyer.
  • C. A comment to one of the rules indicates that while Non-Lawyer’s conflict is not imputed to any lawyer in the office, Non-Lawyer should be screened from involvement in the new matter.  See, V.R.Pr.C. 1.10, Cmt. [4]
  • D. Imputation depends on whether the matter is transactional or involves potential litigation.

Question 4

Last week, I presented to members of the Vermont Association for Justice.  My topic was professional responsibility and “The Golden Rule.”   What was the focus of the discussion?

  • The rule that prohibits unreasonable fees.
  • Trust Account Management/Bookkeeping
  • The advertising rules.
  • Closing arguments and the general prohibition on asking jurors to put themselves in the shoes of the victim or a witness.

Question 5

I often urge lawyers not to share any details of client matters, even if doing so doesn’t violate the prohibition on disclosing information relating to the representation of a client.

Reginald Haupt is a lawyer in Georgia.  In 1982, he was suspended from practice for 6 months for commingling.  In 2006, he was convicted of securities fraud and sentenced to 4 years in prison.

In the 1970’s, Haupt represented a client who owned a golf course that was frequented by members of the Chicago mafia.  Last month, Haupt made headlines by divulging to the media that, long ago, his former client told him that members of the Chicago mafia “delivered a package” to the golf course.  According to Haupt, the “package” was the dead body of a famous missing person who, to this day, remains buried on the course.

Whose body?

James Hoffa.    You can read the story at Golf Digest.

hoffa

Monday Morning Honors #229

Michael Leave a comment

Happy Memorial Day.

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

Honor Roll

  • Karen Allen, Karen Allen Law
  • Janis Barquist
  • Penny Benelli, Dakin & Benelli
  • Geoffrey Bok, Esq.
  • Teri Corsones, Executive Director, Vermont Bar Association
  • Andrew Delaney, Martin, Delaney & Ricci Law Group
  • Heather Devine, Costello Valente & Gentry
  • Jennifer Emens-Butler, Director of Communication & Education, Vermont Bar Association
  • Benjamin Gould, Paul Frank + Collins
  • Anthony Iarrapino, Wilschek & Iarappino
  • Glenn Jarrett, Jarrett & Luitjens
  • Deborah Kirchwey, Law Office of Deborah Kirchwey
  • Jeanne Kennedy, JB Kennedy Associates, Blogger’s Mom
  • Elizabeth Kruska, President, Vermont Bar Association
  • John 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
  • Keith Roberts, Darby Kolter & Nordle
  • Jim Runcie, Ouimette & Runcie
  • Brice Simon, Breton & Simon
  • Jay Spitzen, Esq.
  • Jonathan Teller-Elsberg, Sheehey Furlong & Behm
  • The Honorable John Valente, Vermont Superior Judge
  • Jack Welch, Esq.
  • Jason Warfield, Candidate for Admission to the Vermont Bar

 Answers

Question 1

There’s a rule that prohibits a lawyer from communicating about the subject of the representation with a person that the lawyer knows is represented by another lawyer in the matter.

Which is NOT an exception to the prohibition?

  •   A.  The other lawyer consents to the communication.
  •   B.  The communication is authorized by law.
  •    C. The represented person initiates the communication. V.R.Pr.C. 4.2, Cmt. [3].
  •   D. Trick Question.  A, B, and C are the 3 exceptions to the rule.

Question 2

Attorney called me with an inquiry. I listened, then replied, “yes, but only in an amount reasonably necessary for the purpose.” You may assume that my response accurately (and exactly) quoted the rule.

Given my response, Attorney asked whether the rules permit Attorney to:

  •  A.  review an adverse party’s social media platforms.
  •   B. deposit Attorney’s own money into a client trust account.  V.R.Pr.C. 1.15(b).
  •  C.  engage in ex parte communications with jurors post-trial.
  •  D.  take time off to relax.

Question 3

Communication is one of the 7 Cs of legal ethics.

Several rules require a lawyer to secure a client or former client’s ___________  __________ before acting.   The rules define ___________ __________  as:

  • “An 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.”

The quoted language is the definition of what phrase?

INFORMED CONSENT.

Question 4 

This is a tough one.  While self-reporting might be advisable in response to each, which is the only event that, by rule, a Vermont lawyer is required  to self-report?

  • A.  trust account overdrafts.
  • B.  adverse malpractice judgements.
  • C. discipline imposed in another jurisdiction.
  • D.  criminal convictions.

V.R.Pr.C. 8.3 imposes a duty to report “another lawyer.”  So, generally, there’s no duty to self-report violatios of the Rules of Professional Conduct.  However, per Rule 20(A) of Supreme Court Administrative Order 9, a lawyer who is admitted in Vermont and who is disciplined in another jurisdiction must promptly inform disciplinary counsel.

 Question 5

Looking through the list of notable events to have occurred on May 28 in history, two are related to the law, share a connection, and reminded of my mother.

On or about May 28, 1431, this person was captured while wearing men’s clothing.  Having been convicted of wearing men’s clothing earlier in the same year, the person was charged with heresy and with being a witch.  The person was convicted, sentenced to death, and executed on May 30.

Nearly 500 years later, on May 28, 1923, the United States Attorney General announced that it was legal for women to wear trousers in public.  Yes, the United States Attorney General actually had to make such an announcement.

Sidebar: today is my mother’s youngest sister’s birthday.  Startlingly, Aunt Helen Anne’s birthday is not on today’s list of historical events! Happy birthday AHAB!!!

Anyhow, who was executed as a heretic and witch on this weekend in 1431?

Your hint (and reason I was reminded of my mother): my mom’s maiden name is Jeanne Bonneau.

JOAN OF ARC

Joan of Arc

Monday Morning Honors #228

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
  • Alberto Bernabe, Professor of Law, University of Illinois at Chicago, John Marshall School of Law
  • Andrew Delaney, Martin, Delaney & Ricci Law Group
  • Heather Devine, Costello Valente & Gentry
  • Jennifer Emens-Butler, Vermont Bar Association, Director of Communication & Education
  • Glenn Jarrett, Jarrett & Luitjens
  • Deborah Kirchwey, Law Office of Deborah Kirchwey
  • Jeanne Kennedy, JB Kennedy Associates, Blogger’s Mom
  • John Leddy, McNeil Leddy & Sheahan
  • Kevin Lumpkin, Sheehey, Furlong & Behm
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeff Messina, Bergeron, Paradis, Fitzpatrick
  • Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
  • Herb Ogden, Esq.
  • Keith Roberts, Darby Kolter & Nordle
  • Noah Rosenthal, Fenwick
  • Jay Spitzen, Esq.
  • Jonathan Teller-Elsberg, Sheehey Furlong & Behm
  • The Honorable John Valente, Vermont Superior Judge
  • Eva Vekos, Marsh & Wagner
  • Jason Warfield, Candidate for Admission to the Vermont Bar
  • Zachary York, Sheehey Furlong & Behm

 Answers

Question 1

Identify the duty imposed by a rule that includes these phrases. It’s one of the 7 Cs of Legal Ethics.

  • Explain the matter to the extent reasonably necessary to permit the client to make informed decisions about the representation.
  • Keep the client reasonably informed about the status of the matter.
  • Promptly reply with a client’s reasonable requests for information.

COMMUNICATION.  Each phrase appears in V.R.Pr.C. 1.4.

Question 2

Lawyer contacted me with an inquiry. I listened, then replied “I recommend that you limit your motion to citing to the rule’s specific provision that either requires or permits it.  Then, if the court orders you to disclose more, do so carefully, without disclosing more than necessary to make your point.”

Given my response, it’s most likely that Lawyer called to discuss a motion to:

  • A.  recuse the judge.
  • B.  disqualify opposing counsel.
  • C.  withdraw from representing a client.
  • D.  order a competency evaluation.

This question refers to the dangers of “noisy withdrawal.”  See my blog post Stop Making Noise.

Question 3

Lawyer is an associate at Firm. Tomorrow, Lawyer intends to provide short-term limited legal services to clients at a walk-in clinic sponsored by a nonprofit organization.  Neither Lawyer nor the walk-in clients will expect Lawyer or Firm to provide continuing representation to the clients.  By rule, which set of rules will be (somewhat) relaxed, insofar as they relate to Lawyer’s work at the walk-in clinic?   The rules on:

  •  A.  Malpractice Insurance
  •  B.  Conflicts of Interest. V.R.Pr.C. 6.5
  •  C.  Competence & Diligence
  •  D.  Client Confidences

Question 4

 Many types of “threats” could violate the Vermont Rules of Professional Conduct.  However, there’s only one rule that specifically prohibits lawyers from threatening to do something.

Do what?

V.R.Pr.C. 4.5 makes it professional misconduct to present, participate in presenting, or THREATEN to present criminal charges in order to obtain an advantage in a civil matter.

 Question 5

Bobby Franks was brutally murdered on May 21, 1924.  He was 14 years old.

Two men were charged with the murder.  They were 19 and 18.  Their lawyer concluded that a jury trial would likely result in convictions and death sentences. So, the lawyer convinced the clients to plead guilty and allow him to argue that the judge should spare their lives and sentence them to life in prison.

Then, in a Chicago courthouse in what the media labeled “The Trial of the Century,” the lawyer delivered an argument famously criticizing the death penalty, its use on the young, and the place of vengeance in the justice system.

In the end, the judge sentenced the lawyer’s clients to life in prison.

Interestingly, over a decade earlier, the lawyer was banned from practicing law in California after having been charged with jury tampering and bribery while representing a client charged with bombing the Los Angeles Times building.  The lawyer was acquitted on one count and the jury (a different one) hung on the other.

Name the lawyer.

Bonus: name the lawyer’s clients.

CLARENCE DARROW in the trial of Leopold and Loeb.

darrow

Monday Morning Answers #227

Michael Leave a comment

Happy Monday!

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

Honor Roll

  • Evan Barquist, Montroll, Backus & Oettinger
  • Alberto Bernabe, Professor of Law, University of Illinois at Chicago, John Marshall School of Law
  • Benjamin Gould, Paul Frank + Collins
  • Lon McClintock, Esq.
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeff Messina, Bergeron, Paradis, Fitzpatrick
  • Herb Ogden, Esq.
  • Keith Roberts, Darby Kolter & Nordle
  • Jay Spitzen, Esq.
  • Jonathan Teller-Elsberg, Hershenson, Carter, Scott & McGee
  • Jason Warfield, Esq.
  • Thomas Wilkinson, Cozen O’Connor
  • Zachary York, Sheehey Furlong & Behm

Answers

Question 1

Fill in the blank. (choices below)

By rule, a concurrent conflict of interest exists if there is ___________________ that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

  •  A.  an appearance
  •  B.  the potential
  •  C.  a likelihood
  •   D.  a significant risk.  See, V.R.Pr.C. 1.7(a)(2).

 Question 2

Paralegal works at Firm.  Prospective Client meets with Firm to discuss potential representation.  Paralegal has conflict of interest that would preclude Paralegal from representing Prospective Client if Paralegal were a lawyer.  Which is most accurate?

  • A.  The conflict is imputed to all lawyers who work at Firm.
  • B.  The conflict is imputed, but only to lawyers with whom Paralegal works closely.
  • C.  The conflict is not imputed.
  • D.  The conflict is not imputed, but paralegal should be screened from any involvement in Prospective Client’s matter. See, V.R.Pr.C. 1.10, Cmt. [4].

Question 3

At a CLE, I’m talking about “lateral transfers and whether they were involved personally and substantially.”  What specific area of the rules was I addressing?

  • A.  Trust accounting.  A lateral transfer is a type of ACH transfer.
  • B.  Trust accounting. A lateral transfer is wire fraud. Personal & substantial involvement in effectuating one will expose a lawyer to criminal and disciplinary charges.
  • C.  Conflicts of interest that arise when a lawyer changes firm.
  • D.  Conflicts of interest that arise when a lawyer becomes a judge.

Question 4

Lawyer called me with an inquiry. I responded, “one of the comments to the rule indicates that the rule encompasses anyone who supervises, directs, or regularly consults with you on the matter; who has the authority to obligate your client with respect to the matter; and whose act or omission in connection with the matter may be imputed to your client for the purposes of civil or criminal liability.”

Given my response, Lawyer’s inquiry most likely related to:

  • A.  Lawyer’s duty to report a supervisor’s misconduct.
  • B.  Lawyer’s duty to report a client’s criminal conduct.
  • C.  The scope of Lawyer’s duties to maintain a client’s confidences.
  • D. The constituents of Lawyer’s organizational client with whom opposing counsel cannot communicate absent Lawyer’s consent.  See, V.R.Pr.C. 4.2, Cmt. [7].

Question 5

Constitutional Law.

29 years ago today, Michigan ratified an amendment to the U.S. Constitution. At the time, many believed that Michigan was the 38th state to ratify the amendment, thus making the amendment law.  As it turns out, the amendment officially became part of the Constitution two days earlier, when Alabama ratified it on May 5.

Why the confusion?

Because the amendment was proposed in 1789.  Kentucky ratified it in 1792, but that fact was somehow lost to history until 1996.

Anyhow, it was the most recent amendment to be adopted.

What number is it?  In other words, how many amendments are there to the United States Constitution?

  1. The 27th amendment provides that changes to congressional salaries will not take effect until after the next election of members of the House of Representatives.

Hint: think about a long time focus of the Five for Friday posts.

27th Amendment

 

Monday Morning Honors #226

Michael Leave a comment

Happy Monday!

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

And, as it turns out, the key to picking the Kentucky Derby winner may have been the quiz number.  It was quiz 226.  The winning horse, Medina Spirt, went off at 12-1, which means a $1 bet to win paid $26.20.

Alas.

funky_spirit_of_medina

Honor Roll

 Answers

Question 1

Lawyer called me with an inquiry related to Matter 2, a matter in which Lawyer was considering whether to represent Spring.  Our discussion focused on whether Matter 1 was “the same as or substantially related” to Matter 1.

It’s most likely that Matter 1:

  • A.  also involved Lawyer representing Spring.
  • B.  involved another attorney in Lawyer’s firm representing Spring.
  • C  resulted in a disciplinary complaint being filed against Lawyer.
  • D  involved Winter, a former client of Lawyer’s whose interests are materially adverse to Spring’s in Matter 2.

This is Rule 1.9(a), the rule that applies when assessing conflicts involving former clients. A conflict exists when a current or prospective client’s interests are materially adverse to a former client’s in a matter that is the same as or substantially related to the matter in which the lawyer represented the former client.

Question 2

What is the main difference between how the rules treat hourly and contingent fees?

  • A.  a contingent fee agreement must be in a writing that is signed by the client.  Meanwhile, the rule states that it is “preferable” that an hourly fee agreement be in writing.  NOTE: while not required by V.R.Pr.C. 1.5, it’s best practice to confirm even an hourly fee agreement in writing.
  • B.  an hourly fee agreement must be in a writing that is signed by the client.  Meanwhile, the rules states that it is “preferable” that a contingent fee agreement be confirmed in writing.
  • C.  hourly fees are presumed reasonable, contingent fees are not.
  • D.  Trick question.  Both fees must be reasonable. Other than that, the rules draw no distinction between them.

Question 3

At a CLE, I said:

“the specific definition is ‘the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these rules or other law.’”

Which more general topic(s) is it most likely that the CLE focused on?

  • A.  The relationship between a lawyer and law firm when the lawyer is “of counsel.”
  • B.  Conflicts & Confidences.  The question quotes Rule 1.0(k)’s definition of “screened.”
  • C.  Issues associated with accessing electronically stored information while working remotely.
  • D.  A firm’s response when a lawyer is sanctioned and put on disciplinary probation.

Question 4

Attorney called me with an inquiry.  I listened and responded, “your ethical obligation is to notify the sender that you received it.  Depending on the circumstances, the rules of civil procedure might impose additional duties.”

What did Attorney receive?

  • A. information that Attorney knows or should know was inadvertently sent.  See, V.R.Pr.C. 4.4(a).
  • B.  a last-minute change to previously arranged wiring instructions.
  • C.  a subpoena to produce confidential information related to the representation of a current or former client.
  • D.  a request to meet with a prospective client with whom Attorney knows there exists a conflict of interest.

Question 5

48 years ago today, Lawyer was fired from his job by Person.  Person fired Lawyer after learning that Person had been secretly cooperating with an investigation of Person and Others.

Lawyer had been cooperating with the investigation as part of deal related to his own conduct, conduct that eventually resulted in a criminal conviction and disbarment.

In fact, Person was also an attorney, but was not actively practicing when he fired Lawyer.  Still, Person was eventually disbarred too.

The firing was part of a larger incident that is widely deemed to have resulted in legal ethics and professional responsibility becoming required courses in law school.

Name Lawyer, Person, and the job from which Lawyer was fired 48 years ago today.

Lawyer:                John Dean

Person:                Richard Nixon

Job:                      White House Counsel

Monday Morning Answers #225

Michael Leave a comment

Happy Monday!

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

Honor Roll

Answers

Question 1

Which phrase is in a different rule than the others?

  • A.  “the time and labor required.”
  • B.  “reasonably consult with the client about the means by which the client’s objectives are to be accomplished.”
  • C.  “keep the client reasonably informed about the status of the matter.”
  • D  “promptly comply with reasonable requests for information.”

A is one of the factors to determine whether a fee is reasonable. See, V.R.Pr.C. 1.5.  The others are required by V.R.Pr.C. 1.4, the rule that requires lawyers to communicate with their clients.

Question 2

 By rule, what must be paid over to the Vermont Bar Foundation?

Interest & dividends, net of transactions costs, accruing on pooled interest-bearing trust accounts (IOLTAs).  See, V.R.Pr.C. 1.15B(a)(1).

Question 3

A comment to a rule states:

  • “Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact.”

It’s the rule on:

  • A.  Advertising.
  • B.  Truthfulness In Statements To Others.
  • C.  Trial Publicity.
  • D.  Meritorious Claims & Contentions

This is Rule 4.1.  For more, see my post Puffery & The Ethics of Settlement of Negotiations.

Question 4

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 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.

See, V.R.Pr.C. 1.7, Cmt. 31.

Question 5

Who says the United States Supreme Court is always divided?!?!

That certainly wasn’t the situation last week in a case involving a well-known athletic organization. Oral argument suggested that 7 or 8 justices were skeptical (at best) of the organization’s arguments.

The case relates to labor & anti-trust law. That the argument took place in March was timely: it occurred just as the organization’s most-profitable competition, one that generates nearly $1 billion in revenue for the organization each year, was nearing its conclusion.  Oh the madness!

Name the organization.

The NCAA.

Howe On The Court has a great summary of the oral argument here, and the best headline.

NCAA

Monday Morning Answers #224

Michael Leave a comment

Happy Monday!

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

Honor Roll

Answers

Question 1

Person calls Lawyer.  Person tells Lawyer “I have an attorney, but I’d like a second opinion.”  Lawyer is not otherwise involved in the matter in which Person has an attorney.

True or False?

  • Lawyer must not discuss the matter with Person unless Person’s attorney consents.

FALSE.  See, V.R.Pr.C. 4.2, Comment [4], Reporter’s Note – 2009 Amendment.

Question 2

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 3

Attorney represents Client in matter vs. Litigant.  Litigant is self-represented.

The matter is close to resolving.  Attorney has reduced a proposed settlement to writing.  Attorney shows it to Litigant.  Litigant asks Attorney what paragraph 2 means.

True or False:

Vermont’s rules authorize Attorney to explain Attorney’s view of the proposed settlement and Attorney’s view of the underlying legal obligations created by paragraph 2.

TRUE.   See, V.R.Pr.C. 4.3, Comment [2].  The final sentence says that “So long as the lawyer has explained that the lawyer represents an adverse party and is not representing the person, the lawyer may inform the person of the terms on which the lawyer’s client will enter an agreement or settle a matter, prepare documents that require the person’s signature and explain the lawyer’s own view of the meaning of the document or the lawyer’s view of the underlying legal obligations.”

Question 4

Green contacts Law Firm for potential representation.   Lawyer A has a conflict.  Is Lawyer A’s conflict imputed to all other lawyers in Law Firm?

  • A.  No.
  • B.  Yes, but only if the conflict arises from duties Lawyer A owes to a current client.
  • C.  Yes, but only if the conflict arises from duties Lawyer A owes to a former client.
  • D.  Yes, unless the Lawyer A’s conflict is a personal conflict that does not present a significant risk of materially limiting the representation of Green by the remaining lawyers in the firm.  See, V.R.Pr.C. 1.10(a).

Question 5

In mid-March, the 5th Circuit Court of Appeals issued an opinion in which a concurring opinion cited to the movie Talladega Nights: The Ballad of Ricky Bobby to express its umbrage at the dissent’s critique of the majority opinion as “sound and fury signifying nothing.”

Name the literary character who said “It is a tale. Told by an idiot, full of sound and fury, signifying nothing.”

Bonus: what is the Ricky Bobby quote that the concurring opinion used to express its umbrage to the dissent’s “sound and fury” comment?

The character is MacBeth.

Bonus: “What? I said, ‘with all due respect.’”

The ABA Journal has the story of the opinion here.

Ricky Bobby 2

 

 

Monday Morning Answers #223

Michael Leave a comment

Beware the Ides of March.

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

Honor Roll

  • Karen Allen, Karen Allen Law
  • Evan Barquist, Montroll, Backus & Oettinger
  • Janis Levart Barquist
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor of Law, University of Illinois at Chicago, John Marshall School of Law
  • Leslie Black, Govoni & Black; President, Lamoille County Bar Association
  • Andrew Delaney, Martin, Delaney & Ricci Law Group
  • Erin Gilmore, Ryan Smith & Carbine
  • Robert Grundstein
  • Jeanne Kennedy, JB Kennedy Associates; Mother of the Blogger
  • Nicole Killoran, Professor, Vermont Law School
  • Elizabeth Kruska, President, Vermont Bar Association Board of Managers
  • John Leddy, McNeil Leddy & Sheahan
  • Pam Marsh, Marsh and Wagner
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeffrey Messina, Bergeron, Paradis & Fitzpatrick
  • Hal Miller, Hawaii Agency State Counsel, First American Title Insurance
  • Herb Ogden, Esq.
  • Keith Roberts, Darby Kolter & Nordle
  • Jim Runcie, Ouimette & Runcie
  • Jay Spitzen, Esq.
  • Jonathan Teller-Elsberg, Hershenson, Carter, Scott & McGee
  • Jay Spitzen, Esq.
  • The Honorable John Valente, Vermont Superior Judge
  • Jason Warfield, Applicant for Admission to the Vermont Bar
  • Thomas Wilkinson, Cozen O’Connor

 Answers

Question 1

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. See, V.R.Pr.C. 1.6(b)(5) and Comment [8].  The rule requires the lawyer to give the client reasonable warning that the lawyer will move withdraw if the bill is not satisfied.
  • D. automatically excuses the lawyer from delivering the file.

 Question 2

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

It’s most likely that Lawyer called to discuss whether to _________

  • A. inform the court that a client had testified falsely in a civil matter.
  • B. inform the court that a criminal defense client had testified falsely.
  • C. withdraw from representing a client.
  • D. report another lawyer’s misconduct.  The words and phrases are in V.R.Pr.C. 8.3(a).

 Question 3

Lawyer called me with an inquiry. I replied “here’s the rule: don’t state or imply that you’re disinterested.  If the person misunderstands your role, correct the misunderstanding.  If the person’s interests are likely to conflict with your client’s, don’t give the person any legal advice other than the advice to secure counsel.”  Given my response, the person is most likely:

  • A. Suffering from a diminished capacity.
  • B.  Lawyer’s client’s spouse.
  • C. Paying for Lawyer to represent Lawyer’s client.
  • D. Unrepresented.  My reply tracks V.R.Pr.C. 4.3.

Question 4

Fill in the blank.  Hint: it’s 2 words.

Several rules require a lawyer to receive ___________   _________.   The rules define ________ _______ as “an 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.  V.R.Pr.C. 1.0(e).

Question 5

March 12, 1894, marked the first day that a specific product was ever sold in a bottle.  The product remains well-known to this very day.   In 1888, Asa Candler developed the recipe for the product and owned its rights.  Candler lived in Atlanta.

In 1899, Candler sold the bottling rights to the product to Benjamin Thomas and Joseph Whitehead.  Whitehead was a lawyer.  Apparently, he was also a good businessman. The contract he negotiated required he and Thomas to pay only $1 and left them with the bottling rights forever.  Supposedly, he and Thomas never paid Candler the $1.

I have no idea if Candler was represented in the transaction or if Whitehead took unfair advantage of an unrepresented person.

Name the product.

Coca-Cola.

coke bottle

 

Monday Morning Answers #222

Michael Leave a comment

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

Honor Roll

Answers

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.  Making a material misrepresentation of fact to a third person.
  • B.  Representing a “close relative” in a criminal matter.
  • C.  The unauthorized disclosure of confidential information.
  • D.  Unauthorized disbursements from trust.

The “self-defense” exception is in Rule 1.6(c)(3).  Remember – it likely does not authorize the disclosure of confidential information to respond to a negative online review.  This post includes a list of opinions and cases on that point.

 Question 2

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

Given my response, the communication was most likely from:

  • A.  a prospective client who conferred with, but did not retain, Lawyer. V.R.Pr.C. 1.18.
  • B.  a person who is represented in the matter and who mistakenly emailed Lawyer.
  • C.  a person who is not represented in the matter and who mistakenly emailed Lawyer.
  • D.  a witness who is scheduled to testify against Lawyer’s client.

Question 3

Which is different than the others?

  • A.  Reviewing an adverse witness’s Twitter feed.
  • B.  Advising a client to make their Instagram account private.
  • C.  Setting up a GoFundMe page to fund the representation of a client.
  • D.  Trick question.  Absent more, none is a per se violation of the Rules.

For those wondering about crowd sourcing legal fees, see Wisdom on Crowdfunding Legal Fees.

 Question 4

Several rules require a lawyer to obtain a client’s “informed consent, confirmed in writing.”  Which is most accurate?

  • A.  In situations that require a client’s informed consent, a lawyer may not act until the client’s informed consent is confirmed in writing.
  • B.  If a lawyer has obtained a client’s informed consent, the lawyer may act in reliance on that consent so long as it is confirmed in writing within a reasonable time thereafter.
  • C.  An email does not satisfy the “confirmed in writing” requirement.
  • D.  I object to the premise of the question!  While prudent, not a single rule requires informed consent to be confirmed in writing.

It’s always best to have it in writing. Alas, see V.R.Pr.C. 1.0, Comment [7] and V.R.Pr.C. 1.7, Comment [20].

 Question 5

A well-known lawyer passed away this week.  Very early in the lawyer’s career, the lawyer represented college students in the case that resulted in the desegregation of the University of Georgia.  Years later, the lawyer survived an assassination attempt.  The sitting United States President visited the recovering lawyer in the hospital. The President’s visit with the lawyer was the very first story ever reported on CNN cable news.

Name the lawyer.

VERNON JORDAN. 

Vernon_Jordan

The President was Jimmy Carter,  The first ever CNN broadcast is here.  The Associated Press reported Jordan’s passing here.

Monday Morning Answers #221

Michael

It’s grey in Williston today.  Tomorrow at this time, there will be bright sunshine and blue skies!  All the better to see the wind chill of 13 below.

Let’s hope that March lives up to the adage and, eventually, reverts to a lamb.

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

the-quiz

Honor Roll

Answers

Question 1

There’s a rule that prohibits lawyers from engaging “in undignified or discourteous conduct which is degrading or disrupting to a tribunal.”   Does it apply at a deposition?

  • A.  No.
  • B.  Yes. V.R.Pr.C. 3.5, Comment [5].
  • C.  Yes, but a comment suggests that it does not apply to remote/virtual depositions.
  • D.  Yes, but the United States District Court for the District of Vermont has adopted a local rule that says it does not.

Question 2

Attorney called to discuss a potential conflict between two current clients.  Attorney informed me that each client had given informed consent, confirmed in writing, to waive the conflict, and that Attorney’s representation of each would not involve one making a claim against the other in the same matter.  Attorney asked, “I’m good to go, right?”

What was my most likely response?

  • A.  No, there are two other things that the rule requires you to consider, including whether it’s reasonable for you to believe that you can provide competent and diligent representation to each.  See, V.R.Pr.C. 1.7(b).  It lists the requirements to waive a conflict.
  • B.  Yes, that’s exactly what the rule requires of you.
  • C.  Yes, and you went above & beyond: the rule doesn’t require the waiver to be in writing.
  • D.  Probably. Do you think the Celtics will ever win again?

Question 3

Generally, the client owns the objectives of a representation, while the lawyer, in consultation with the client, controls the means.

Attorney called me and asked: “hypothetically, can a lawyer accept or reject a settlement offer without checking with the client?”  It’s most likely that I responded:

  • A  Yes, no matter what.
  • B.  No, never.
  • C.  From a risk-management perspective, I think it’s always best to confirm with the client. That said, a comment to one of the rules suggests it’s okay if the client has previously authorized you to accept or reject certain offers.  See, V.R.Pr.C. 1.4, Comment [2] and V.R.Pr.C. 1.2(a).
  • D.  Good question.  Do you think the Celtics will ever win again?

Question 4

Which is true?

  • A.  by rule, a sole practitioner must adopt a succession plan.
  • B.  The conflicts rules include an exception that allows an attorney to represent both sides to a real estate transaction if the people are “close relatives.”
  • C.  While the rules suggest that all fee agreements should be in writing, there is no type of fee agreement that must be in writing.
  • D.  There is a limited exception to the rule that prohibits a lawyer from depositing the lawyer’s own funds in the trust account.   V.R.Pr.C. 1.15(c).

Question 5

Speaking of Michael Keaton, he stars in Worth, a movie that Netflix is scheduled to release in September 2021.  It’s the real-life story of Attorney Kenneth Feinberg.  Keaton will play Feinberg.

As a lawyer, Feinberg has administered several large and well-known victim compensation funds, including the funds created in response to the Boston Marathon bombings, the Volkswagen emissions scandal, and the BP Deepwater Horizons disaster.

Worth will focus on Feinberg’s administration of another victim compensation fund.  Sara Colangelo directed the film and, at the Sundance Festival, said:

  • “There’s something really interesting about the math of it all, the kind of computing of numbers and putting dollars and cents to a person’s life, colliding with heartbreak, and the human drama of [the event]. That tension was really interesting to me.”

Name the event that led to the creation of the victim compensation fund that will be central to Worth, a movie that will be released in September.

The September 11 Victim Compensation Fund.  

IndieWire reviewed the movie here.