Monday Morning Honors #298

Happy Monday!

Friday’s questions are here.  Many thanks to all who sent stories of things we no longer collect!  I’ll share a list later this week. The answers follow today’s Honor Roll.

Honor Roll

• Karen Allen, Karen Allen Law
• Matt Anderson, Pratt Vreeland Kennelly Martin & White
• Penny Benelli, Dakin & Benelli
• Alberto Bernabe, Law Professor, UIC Law
• Kristen Connors, Montroll Oettinger & Blanquist
• Andrew Delaney, Martin Delaney & Ricci Law Group
• Robert Grundstein
• Glenn Jarrett, Jarrett/Hoyt
• The Honorable Pam Marsh, Probate Judge, Addison County
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Jeffrey Messina, Flynn Messina Law
• Keith Roberts, Darby Kolter & Roberts
• Jim Runcie, Olivette & Runcie
• Joe Strain, Marsicovetere & Levine Law Group
• Jonathan Teller-Elsberg, Staff Attorney, New Hampshire Legal Assistance
• Jason Warfield, Jason Warfield Family Law & Mediation
• Peter Young, General Counsel, Vermont Rail System
• Brendan Walsh, Quantum Leap Capital
• Thomas Wilkinson, Jr., Cozen O’Connor

ANSWERS

Question 1

A comment to a rule states that “information acquired in a prior representation may have been rendered obsolete by the passage of time, a circumstance that may be relevant in determining whether two matters are substantially related.”

Which two of the 7 Cs of Legal Ethics does the rule address?

Conflicts & Confidentiality, See, V.R.Pr.C. 1.7, Cmt. [3]

Question 2

The word “client” is not one of my 7 Cs of Legal Ethics.  I suppose it should be!

Anyhow, there are several rules whose titles reference specific types of clients.  Which is NOT a type of client specifically mentioned in the title to a rule?

• A.           Current.
• B.           Deceased.
• C.           Former.
• D.           Prospective.

The others are mentioned in, respectively, Rules 1.7, 1.9, and 1.18.

Question 3

Attorney contacted me with an inquiry.  I listened, then responded:

“There are 3 exceptions.  One is if the testimony relates to an uncontested issue. Another is if the testimony relates to the nature and value of legal services rendered in the case.  The last is if disqualification will result in substantial hardship to the client.”

Given my response, Attorney contacted me because Attorney __________:

• A.  reasonably believed that they had become a necessary witness.  See, V.R.Pr.C. 3.7
• B.  mid-trial, learned that a former client would be the next witness to testify for the opposing party.
• C.  had been subpoenaed to give evidence against a former client.
• D.  All the above.  The rule mentions each scenario.

Question 4

Vermont has a rule that is not in the ABA Model Rules of Professional Conduct. Following the ABA’s lead, most jurisdictions have either decided not to adopt the rule or repealed it.  Jurisdictions that do not have the rule typically prosecute the conduct that the Vermont rule prohibits – basically, extortion – under a rule that prohibits a lawyer from engaging in conduct that is related to a crime.

Here is a comment to the Vermont rule.  Fill in the blanks. A different word goes in each.

It’s Rule 4.5 – Threatening Criminal Prosecution.  The question refers to Comment [1].

“The civil adjudicative process is primarily designed for the settlement of disputes between parties, while the criminal process is designed for the protection of society as a whole.”

Question 5

Like most jurisdictions, Vermont has a rule that prohibits a lawyer from having a sexual relationship with a client.  There is an exception for sexual relationships that pre-date the attorney-client relationship.

Last summer, in the second season of a popular show, a lawyer named Mickey danced around the rule.  After having a brief sexual relationship with Lisa – a chef & restaurant owner – Mickey represented Lisa when she was charged with murder.  After a jury found Lisa “not guilty,” Lisa “fired” Mickey so that they could resume their personal relationship.

From the Netflix show and the series of books on which it is based, we know that Mickey has no problem taking on tough cases but has one hard & fast rule related to client selection: he will never represent someone who has hurt a child.

Name the Netflix show in which Mickey is an attorney who has an unconventional “office.”

The Lincoln Lawyer

Monday Morning Honors #296

Happy Monday!

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

• Karen Allen, Karen Allen Law
• Penny Benelli, Dakin & Benelli
• Alberto Bernabe, Law Professor, UIC Law
• The Currency Counselors, Office of the State Treasurer, General Counsel’s Office
• Robert Grundstein
• Margo Howland, Esq.
• Glenn Jarrett, Jarrett/Hoyt
• Douglas Keehn, Assistant Attorney General, Medicaid Fraud & Residential Abuse Unit
• Mark Kolter, Darby Kolter & Roberts
• Elizabeth Kruska, Former President, Vermont Bar Association
• Jordana Levine, Marsicovetere & Levine
• Jeffrey Messina, Flynn Messina
• Patrick Olmstead, Patrick Olmstead Law
• Keith Roberts, Darby Kolter & Roberts
• Jim Runcie, Ouimette & Runcie
• Jonathan Teller-Elsberg, Staff Attorney, New Hampshire Legal Assistance
• Brendan Walsh, Quantum Leap Capital
• Jason Warfield, Jason Warfield Family Law & Mediation
• Thomas Wilkinson, Jr., Cozen O’Connor

ANSWERS

Question 1

Here’s language from a rule that relates to one of the 7 Cs of Legal Ethics:

“The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client.”

The language is the first of four requirements that must be met before a lawyer can __________:

• A.  Represent a client despite a concurrent conflict of interest.  See, V.R.Pr.C. 1.7(b)(1).
• B.  Disclose otherwise confidential information.
• C.  Undertake representation in a subject matter area that is new to the lawyer.
• D.  Choose not to communicate to the client information that would otherwise assist the client to make an informed decision about to the representation.

Questions 2

Fill in the blank. Choices are below and the same word correctly fills each blank.

There’s a rule that sets out a lawyer’s duties when dealing on behalf of a client with a person who is ___________.  Per the rule, a lawyer “shall not state or imply that the lawyer is disinterested.”  A comment to the rule states that “An ___________ person, particularly one not experienced in dealing with legal matters, might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even though the lawyer represents a client.”

What’s the word?

• A.  Incapacitated.
• B.  Represented.
• C.  Unrepresented.  V.R.Pr.C. 4.3, Comment [1].
• D.  Adverse.

Question 3

This came up in an inquiry I received this week.

A supervisory lawyer will be responsible for another lawyer’s misconduct __________:

• A.  Never.
• B.  If the supervisory lawyer orders or ratifies the misconduct.
• C.  If the supervisory lawyer knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
• D.  B & C.  See, V.R.Pr.C. 5.1.

Question 4

Speaking of remedial action and the & 7 Cs of legal ethics . . .

. . . each situation below likely requires action by the lawyer. However, of the “C” rules, only one includes language that specifically requires a lawyer to take “reasonable remedial measures” in response to specified conduct by a client or witness.  Which C, and what is the conduct, stated in the rule, that requires “reasonable remedial measures?”

• A.  Confidentiality.  The client or witness informed the lawyer that they used impermissible or illegal methods to obtain evidence from an opposing party.
• B.  Candor.  The client or witness offered material evidence that the lawyer comes to learn is false.  V.R.Pr.C. 3.3(a) (3).
• C.  Commingling.  The lawyer comes to learn that the client or witness used the lawyer’s trust account to hide funds from creditors. 
• D.  Conflicts.  The lawyer comes to learn that the client or witness met with another lawyer for no reason other than to disqualify the lawyer from representing the opposing party.

Question 5

Background: a category in Jeopardy a few nights ago was “the original language.” For example, a clue was “The Aeneid.”  The correct response was “What is Latin?”  Also, in Vermont, the unauthorized practice of law violates Rule 5.5 of the Vermont Rules of Professional Conduct.

In the intro, I referred to a motion for sanctions filed against an attorney representing Elon Musk in a civil case that is pending in Texas. I mentioned that the motion alleges the lawyer engaged in uncivil conduct during a deposition.  What I didn’t mention is that the motion also argues that Musk’s lawyer engaged in the unauthorized practice of law by appearing at the deposition (and filing pleadings) before being admitted to practice in Texas.  Specifically, the motion argues that the lawyer failed to secure a type of admission that, as far as I know, every U.S. jurisdiction uses a Latin term to describe. 

What’s the Latin term for the type of admission to practice that Musk’s lawyer allegedly failed to secure?

PRO HAC VICE

Bonus: what’s the literal English translation?

A variety of answers are generally correct.  According to my research, the literal translation is “for this turn.”

Monday Morning Honors #295

Happy Boston Marathon Day!  Good luck to all runners, including Vermont lawyer Tim Noonan!

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

A HUGE thank you to all the readers who sent tips on making the perfect grilled cheese sandwich. I received so many that I think Wednesday might require a wellness post that features the suggestions. 

Honor Roll

• Penny Benelli, Dakin & Benelli
• Andy Delaney, Martin Delaney & Ricci
• Robert Grundstein
• Margo Howland, Esq.
• Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
• Jeanne Kennedy, Mother of the Blogger
• Patrick Kennedy, The First Brother
• Elizabeth Kruska, Former President, Vermont Bar Association
• John T. Leddy, McNeil Leddy & Sheahan
• Jordana Levine, Marsicovetere & Levine
• Jeffrey Messina, Flynn Messina
• Herb Ogden, Esq.
• Patrick Olmstead, Patrick Olmstead Law
• Lisa Penpraze, Assistant United States Trustee
• Keith Roberts, Darby Kolter & Roberts
• Jonathan Teller-Elsberg, Staff Attorney, New Hampshire Legal Assistance
• Jason Warfield, Jason Warfield Family Law & Mediation
• Thomas Wilkinson, Jr., Cozen O’Connor

ANSWERS

Question 1

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 2

Which is NOT an exception to the duty not to disclose information relating to the representation of a client.

• A.  To respond to a negative online review left by a former client.  See this blog post.
• B.  To secure legal advice about compliance with the ethics rules.
• C.  To make an inquiry of bar counsel about the representation.
• D.  To detect conflicts of interest when considering new employment.

Question 3

Vermont has a rule that imputes certain types of a lawyer’s conflicts to all other lawyers in the same firm.  Does the rule impute a paralegal’s conflict to other lawyers in the same firm?

• A.  Yes, and the firm must decline the representation.
• B.  No, but the paralegal should be screened from involvement in the new matter.  See, V.R.Pr.C. 1.10, Cmt. [4].
• C.  Yes, but only to any lawyer who supervises the paralegal.

Question 4

Do Vermont’s rules on conflicts of interest allow a client to consent to waive a conflict that might arise in the future?

• A.   No.
• B.   Yes.  The advance waiver is subject to the same test as any other conflict waiver.  See, V.R.Pr.C. 1.7, Cmt. [21].
• C.   Yes, but only if the client is a “sophisticated client.”
• D.   Yes, but only if the client is a “sophisticated client” who has previously retained the lawyer in other matters.

Question 5

The people in these pictures are Sarah Paulson and Courtney Vance.  The pictures are stills from a documentary in which each portrayed a lawyer who was involved in the OJ Simpson criminal trial. 

Talk about competence!

In 2018, each won an Emmy Award for their work in the documentary.   Name the lawyers that each played.

Marcia Clark & Johnnie Cochran.

Monday Morning Honors #294

Happy Eclipse Day! 

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

Honor Roll

• Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labor
• Andy Delaney, Martin Delaney & Ricci
• Robert Grundstein
• Ryan Kane, Vermont Deputy Solicitor General, Office of the Attorney General
• Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
• Douglas Keehn, Assistant Attorney General, Medicaid Fraud & Residential Abuse Unit
• Patrick Kennedy, The First Brother
• Jordana Levine, Marsicovetere & Levine
• Jeffrey Messina, Flynn Messina
• Patrick Olmstead, Patrick Olmstead Law
• Keith Roberts, Darby Kolter & Roberts
• Stephanie Romeo, Ryan Smith & Carbine
• Jonathan Teller-Elsberg, Staff Attorney, New Hampshire Legal Assistance
• Jason Warfield, Jason Warfield Family Law & Mediation

ANSWERS

Question 1

Here’s a few sentences from one of the comments to a rule.  What of the 7 Cs of Legal Ethics does the rule address?

• “To determine whether a _______ exists, a lawyer should adopt reasonable procedures, appropriate for the size and type of firm and practice, to determine in both litigation and nonlitigation matters the persons and issues involved. Ignorance caused by a failure to institute such procedures will not excuse a lawyer’s violation of this rule.”

CONFLICT OF INTEREST.   V.R.Pr.C. 1.7, Cmt. [3]

Question 2

Some might consider it a distinction without a difference, but which is correct?  Vermont’s rule on fees:

• A.  prohibits a lawyer from charging an unreasonable fee.  See, V.R.Pr.C. 1.5.
• B.  requires a lawyer to charge a reasonable fee.

Question 3

Another C.   A comment to the rule that addresses this “C” acknowledge that compliance with the duty “can result in grave consequences to the client, including not only a sense of betrayal but also loss of the case and perhaps a prosecution for perjury.”  Still, compliance is required.

Which C?

CANDOR.   V.R.Pr.C. 3.3, Cmt. [11]

Question 4

Imagine this situation: Person meets with Lawyer to discuss forming a client-lawyer relationship. Person took the meeting in good faith. That is, Person did not take the meeting for no other purpose than to disqualify Lawyer from representing anyone else in the matter.  Nevertheless, following the consultation, Person decides not to retain Lawyer. Now, someone else wants to retain Lawyer in the same matter.

Which is most accurate?

• A.  Vermont has a rule that addresses this exact situation.  The rule sets out the duties a lawyer owes to a prospective client.
• B.  Vermont does not have a rule that addresses this exact situation.  Rather, Person will be deemed a “Current Client” and the situation analyzed under the rule that addresses “concurrent conflicts of interest.”
• C. Vermont does not have a rule that addresses this exact situation.  Rather, Person will be deemed a “Former Client” and the situation analyzed under the rule that addresses the duties owed to former clients.
• D.  Mike, I object to the premise of your question.  There is no world in which a client could possibly decide against retaining me after having met me.

I blogged about the rule 3 times last week. The posts are:

• Fish, fowl, and Vermont’s rule on a lawyer’s duties to prospective clients
• The nature & type of information received from a prospective client that might later disqualify a lawyer
• Get Smart: ABA provides guidance on reasonable measures to avoid acquiring disqualifying information from a prospective client

Question 5

It has been far too long since Question 5 involved My Cousin Vinny. So, with the intro having involved gambling, here we go!

My Cousin Vinny includes a famous scene in which Vinny explains offers, counteroffers, and negotiations.  The explanation is part of his attempt to collect bet that Mona Lisa Vito had won, but that the loser had not paid.

What had Mona Lisa Vito (successfully) bet on herself to win?

And because I set the rules here and am allowed blogger’s license, no credit for anyone who suggests that it was more of a hustle than a bet.

A game of pool.  The “collection” scene is here.

Monday Morning Honors #292

The sun is shining, it’s light past 5:30, and today is the last day of its name in February.  Happy Monday indeed!

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

Honor Roll

• Alberto Bernabe, Professor, UIC School of Law
• Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labor
• Andy Delaney, Martin Delaney & Ricci
• Heather Devine, Tarrant Gillies Shems
• Bob Grundstein
• Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
• Douglas Keehn, Assistant Attorney General, Medicaid Fraud & Residential Abuse Unit
• Jeanne Kennedy, JB Kennedy Associates, Mother of the Blogger
• Patrick Kennedy, Amazon Web Services, The First Brother
• John T. Leddy, McNeil Leddy & Sheahan
• Jordana Levine, Marsicovetere & Levine
• Pam Loginsky, Pierce County (WA) Prosecutor’s Office
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Team MOB-kingbird (Evan Barquist & Kristen Connors)
• Noah Rosenthal, Fenwick
• Kevin Shortell, Peet Law Group
• Joe Strain, Marsicovetere & Levine
• Jonathan Teller-Elsberg, Staff Attorney, New Hampshire Legal Assistance
• Jason Warfield, Jason Warfield Family Law & Mediation
• Thomas Wilkinson, Jr., Cozen O’Connor

ANSWERS

Question 1

Here are some words & phrases that I used when responding to an ethics inquiry:

• Concurrent
• Significant risk
• Materially limited by the lawyer’s responsibilities

Which of the 7 Cs of Legal Ethics was the subject of the inquiry?

Conflicts.   This words & phrases appear in Rule 1.7(a)(2), which states that a lawyer has a concurrent conflict of interest whenever there is a significant risk that the representation of a client will be materially limited by the lawyer’s responsibilities to another, a former client, a third party, or a personal interest of the lawyer.

Question 2

By rule, how long after the termination of a representation must a lawyer maintain complete records of funds & property held in connection with the representation?

• A.  3 years.
• B.  6 years.  V.R.Pr.C. 1.15(a)(1)
• C.  7 years.
• D.  Trick question. The rule is silent on this issue.

Question 3

A lawyer has a duty to consult with the client about the means by which the client’s objectives are to be accomplished.

• A.   False.  The lawyer controls the means and is under no duty to consult with the client about the means by which the client’s objectives will be pursued.
• B.   False.   The lawyer must abide by a client’s decisions with respect to the means by which the client’s objectives are pursued.
• C.   True.  V.R.Pr.C. 1.2(a)

Question 4

Over the years, I’ve used each of these phrases when responding to inquiries. Which is in a different rule than the others?

• A.  don’t state or imply that you’re disinterested.
• B.  if the person is seeking a second opinion from you, you don’t need the consent of the person’s current lawyer to communicate with the person.
• C.  if the person misunderstands your role, correct the misunderstanding.
• D.  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.

A, C, and D are part of Rule 4.3, which sets out a lawyer’s duties to an unrepresented person.  B is part of Rule 4.2, which governs communications with a person who is represented by counsel.

Question 5

Speaking of uncles and nephews.

William “WW” Watkins Vaughan was a lawyer in Pawhuska, Oklahoma.  In June of 1923, Vaughan met with a prospective client named George Bigheart.  At the time, Bigheart was in a hospital in Oklahoma City.  Doctors suspected he had been poisoned.  Bigheart told Vaughan that he had information that could prove that two men had committed/arranged numerous brutal murders in another part of the state. 

That night, Vaughan boarded a train back to Oklahoma City. He never arrived. The next morning, a porter who went to wake him, found his berth empty and unused.  Later, Vaughan was found dead on the tracks just a few miles outside Pawhuska.  Bigheart died in the hospital on the same day.

The two men who Bigheart suspected of murder likely poisoned him.  One was later convicted of murder after the other, his nephew, pleaded guilty to murder and agreed to testify against his uncle.  A lawyer who worked for the uncle was sent to prison for 1 year for bribing a witness to change her testimony.

A movie about the brutal crimes committed by the uncle and nephew is currently streaming on Apple TV and is available to buy or rent on Amazon Prime.

Name the movie, which is based on a book.

Killers of the Flower Moon

Monday Morning Answers #291

Happy Monday! 

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

Honor Roll

• Evan Barquist, Montroll Oettinger & Barquist
• Alberto Bernabe, Professor of Law, University of Illinois Chicago Law School
• Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labor my
• Amy Davis, Davis Legal Solutions
• Andrew Delaney, Martin Delaney & Ricci Law Group
• Benjamin Gould, Paul Frank + Collins
• Bob Grundstein
• Margo Howland, Esq.
• Glenn Jarrett, Jarrett/Hoyt
• Douglas Keehn, Assistant Attorney General, Medicaid Fraud & Residential Abuse Unit
• John Leddy, McNeil Leddy Sheahan
• Patrick Kennedy, Amazon Web Services, The First Brother
• Deborah Kirchwey, Law Offices of Deborah KIrchwey
• Kevin Lumpkin, Sheehey Furlong & Behm
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Hal Miller, First American Title, Hawaii State Counsel
• Herb Ogden, Esq.
• Patrick Olmstead, Patrick Olmstead Law
• Christopher Perkett, OP Law
• Keith Roberts, Darby Kolter & Roberts
• Jonathan Teller-Elsberg, Staff Attorney, New Hampshire Legal Assistance
• Jason Warfield, Jason Warfield Family Law & Mediation
• Thomas Wilkinson, Jr., Cozen O’Connor

ANSWERS

Question 1

Exceptions to this duty include:

• to respond to allegations in any proceeding concerning the lawyer’s representation of the client;
• to establish a claim or defense in a controversy between the lawyer and the client; and,
• to resolve and detect conflicts of interests arising from a lawyer’s change or potential change of employment.

What duty?  CONFIDENTIALITY – V.R.Pr.C. 1.6

Question 2

Attorney contacted me with an inquiry. I listened, then replied: “the rule requires you to keep it in trust until the dispute is resolved.”  Given my response, it’s most likely that:

• A.  A client whose advance payment Attorney had yet to earn filed a disciplinary complaint against Attorney.
• B.   Attorney was duped by a trust account scam.
• C.   Attorney was selected for a trust account audit.
• D.   Someone other than Attorney’s client had asserted an interest in funds Attorney is holding for client.  See, V.R.Pr.C. 1.15(e).  For more, see my blog post: A lawyer’s duties when a third party asserts an interest in funds being held on behalf of a client

Question 3

There’s a rule that sets out the conditions under which a conflict of interest can be waived. One condition is when “each affected client gives informed consent, confirmed in writing.”

Fill-in-the-blanks.  Each correct answer is a form of the same word.

A comment to the same rule states:

“Whether REVOKING consent to the client’s own representation precludes the lawyer from continuing to represent other clients depends on the circumstances, including the nature of the conflict, whether the client REVOKED consent because of a material change in circumstances, the reasonable expectations of the other client and whether material detriment to the other clients or lawyer would result.”

V.R.P.C. 1.7, Cmt. [20]

Question 4

Lawyer works at Firm.  Lawyer and Firm have entered into a written employment agreement that requires Lawyer to pay Firm $1000 for every client that follows Lawyer if Lawyer leaves to work somewhere else.  Which is most accurate? 

• A.  There is no Vermont Rule of Professional Conduct that addresses this issue.
• B.  The Vermont Rules of Professional Conduct specifically allow this type of agreement, as long as Lawyer’s payment to Firm does not increase the fee charged to a client who follows Lawyer.
• C.   Whether the agreement is enforceable will likely turn on an analysis of the Vermont Rule of Professional Conduct that prohibits lawyers from making agreements that restrict their right to practice law.  See, this blog post.
• D.  Whether the agreement is enforceable will likely turn on an analysis of the rules that govern conflicts of interest.

Question 5

Competence? Threatening criminal prosecution?

In a fictional work published in 1600, Portia was not a lawyer.  However, during a trial central to the plot, she pretended to be both a man and a lawyer.  She “represented” Antonio in a contractual dispute with Shylock.  Shylock had loaned money to Antonio.  When Antonio did not repay the money, Shylock sought the remedy specified in the contract.

Portia asked Shylock to accept recompense other than as stated in the contract – first suggesting that he show mercy to Antonio, next offering to pay Shylock 3 times what Antonio owed.  Still, Shylock refused, insisting that he receive the contractual remedy.

In the end, Portia prevailed, pointing out that the while the contract provided a specific remedy, it did not give Shylock the right to take even a drop of Antonio’s blood. Indeed, the evidence suggests that Portia threatened Shylock with criminal prosecution in order to gain an advantage in the civil matter.

What’s the well-known phrase that, per the contract, was Shylock’s remedy for Antonio’s failure to repay the loan?  POUND OF FLESH

Bonus: what’s the title of the fictional work?  THE MERCHANT OF VENICE

Monday Morning Honors #290

Happy Monday! 

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

Honor Roll

• Penny Benelli, Dakin & Benelli
• Amy Butler, Amy Butler Law
• Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labor
• Heather Devine, Tarrant Gillies Shems
• Benjamin Gould, Paul Frank + Collins
• Bob Grundstein
• Margo Howland, Esq.
• Glenn Jarrett, Jarrett/Hoyt
• Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
• Douglas Keehn, Assistant Attorney General, Medicaid Fraud & Residential Abuse Unit
• Jeanne Kennedy, JB Kennedy Associates, Mother of the Blogger
• Patrick Kennedy, Amazon Web Services, The First Brother
• Cassandra Larae-Perez, Gravel & Shea
• Andrew Manitsky, Lynn, Lynn, Blackman & Manitsky, Immediate Past-President, VBA
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Hal Miller, First American Title, Hawaii State Counsel
• Herb Ogden, Esq.
• Patrick Olmstead, Patrick Olmstead Law
• Christopher Perkett, OP Law
• Keith Roberts, Darby Kolter & Roberts
• Joseph Strain, Marsicovetere & Levine
• Jonathan Teller-Elsberg, Staff Attorney, New Hampshire Legal Assistance
• Jason Warfield, Jason Warfield Family Law & Mediation
• Thomas Wilkinson, Jr., Cozen O’Connor

ANSWERS

Question 1

Lawyer called me with an inquiry. In my response, I urged the Lawyer to consider “3-way reconciliation.”  It’s most likely that Lawyer called to discuss:

• A.  A conflict that arose between an insurance company and the insured.
• B.  A conflict that arose when representing both spouses in a collaborative divorce.
• C.  A conflict that arose when representing both buyer & seller in the same transaction.
• D.  Trust account management.  Three-way reconciliation is a process by which the trust account is balanced by comparing the trust ledger, individual client ledgers, and the bank statement. There are many online sources that describe how to perform a three-way reconciliation. I suggest researching them.

Question 2

Client files a disciplinary complaint against Lawyer. The complaint is screened and referred to Disciplinary Counsel for an investigation. Lawyer calls me and asks whether it would be okay to refund Client’s fee in exchange for Client’s agreement to withdraw the complaint. Most likely, my reply will be:

• A. Good idea, as long as you advise Client to seek independent legal advice about the proposal.
• B. Good idea, as long as you give Client a chance to discuss the proposal with disciplinary counsel.
• C. Bad idea.  In most jurisdictions, asking a client to withdraw a disciplinary complaint is considered to be an ethics violation, even if the complaint is without merit.  Specifically, many states have concluded that it violates Rule 8.4(d)’s prohibition against conduct that is prejudicial to the administration of justice.  Indeed, in 1992, a Vermont lawyer was admonished for attempting to condition settlement of a malpractice claim on the former client’s agreement not to file a disciplinary complaint.  The decision is here.  Two years later, another Vermont attorney was sanctioned for similar conduct.  The attorney represented a lawyer in a malpractice case.  The attorney attempted to condition settlement on the lawyer’s former client’s agreement not to file a disciplinary complaint. The sanction was issued even though it was clear that any disciplinary complaint would have been frivolous.  The decision is here.  Finally, Rule 20(H) of Supreme Court Administrative Order 9 states “Neither unwillingness nor neglect of the complainant to sign a complaint nor to prosecute a charge, nor settlement, nor compromise between the complainant and the lawyer, nor restitution by the lawyer shall, in itself, justify abatement of the processing of any complaint.”
• D.  It depends. What does Client’s complaint allege that you did?

Question 3

Do the Vermont Rules of Professional Conduct specifically prohibit a lawyer from asking a client to waive a conflict that might arise in the future?

• A.  Yes. And a comment to the rule indicates that “it is not possible for a client to give informed consent to waive a conflict that has not yet arisen.”
• B.  No.  And a comment to the rule indicates that “the effectiveness of such waivers is generally determined by the extent to which the client reasonably understands the material risks that the waiver entails.”  See, V.R.Pr.C. 1.7, Cmt. [21].

Question 4

Attorney represents Client.  Attorney knows that Opposing Party is represented by counsel. Client informs Attorney that Client intends to discuss resolution of the matter directly with Opposing Party.  Client asks for advice on framing the discussion.

May Attorney provide the advice?

• A.  Yes, without limitation.
• B.  Yes, but only after informing Opposing Party’s lawyer that Client intends to communicate directly with Opposing Party.
• C.  Yes, but most bar counsel types believe that Attorney should not “script” the conversation or advise Client “to parrot” Attorney’s words.  See, this blog post.
• D.  No.

Question 5

In September, I presented a CLE for a group of Intellectual Property lawyers. The practice area is probably the one in which I feel most incompetent to present.  

That said, IP law often intrigues & entertains me.  For example, here’s my post on Taco Bell’s petition to cancel  another restaurant’s “Taco Tuesday” mark.  More recently, the ABA Journal has this article about the law firm that filed a motion to dismiss on behalf of a client, copyrighted the motion, and then sued the firm that represents a co-defendant for copyright infringement.  The first firm alleges that the second filed a motion to dismiss that has a “striking resemblance” to and repeats “nearly verbatim” the copyrighted motion. 

Yes – you read that correctly. A law firm copyrighted a motion that it filed.

Anyhow, over the years, I’ve managed to pick up some of IP Law’s basic terms. One is “public domain.”  Basically, material that isn’t protected by copyright, mark, or patent is in the “public domain” and free for anyone to use.

This week, a gigantic corporation’s copyright expired.  The copyright was to a famous character who was introduced in a short film that debuted in 1928. As a result, the character (at least as depicted in the short film) is now in the “public domain.”  According to one report, since the copyright expired, a trailer for a horror movie featuring the character has been released and “digital creators” have edited the short film to make it appear as if the character is swearing.

Name the character and the short film in which the character was introduced.

Mickey Mouse & Steamboat Willie

Among others, The Verge, Financial Times, and Yahoo! Entertainment have coverage.

Monday Morning Honors #289

Happy Monday! 

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

Honor Roll

• Karen Allen, Karen Allen Law
• Matthew Anderson, Pratt Vreelend Kennelly Martin & White
• Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labor
• Bob Grundstein
• Margo Howland, Esq.
• Glenn Jarrett, Jarrett/Hoyt
• Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
• Elizabeth Kruska, Former President, Vermont Bar Association
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Team MLS (Mick Leddy & Alex Esposito)
• Pam Loginsky, Pierce County (WA) Prosecutor’s Office
• Jeff Messina, Flynn Messina Law Group
• Hal Miller, First American
• Team Tequila MOB-cking Bird (Kristen Connors, Evan Barquist, Kylie Cordner, Moz. St. Pierre)
• Herb Ogden, Esq.
• Patrick Olmstead, Patrick Olmstead Law
• Keith Roberts, Darby Kolter & Roberts
• Jonathan Teller-Elsberg, Staff Attorney, New Hampshire Legal Assistance
• Caryn Waxman, Barber & Waxman

ANSWERS

Question 1

It’s rare for the Rules of Professional Conduct to refer to specific practice areas or types of cases.  However, there’s one rule that both to criminal defense and divorces.  What’s the subject of the rule?

• A. Conflicts of Interest.
• B. Communication.
• C. Candor to the Tribunal.
• D. Contingent Fees.  See, V.R.Pr.C. 1.5(d).

Question 2

Sadly, this question is one that I receive between 5-8 times per year.

This morning, Client shared information with Lawyer that caused Lawyer reasonably to believe that Client intends to take their own life.  Lawyer wants to disclose Client’s intent to someone who can intervene.  Under Vermont’s rules, Lawyer:

• A.  must not disclose Client’s intent.
• B.  must disclose Client’s intent.
• C.  may disclose Client’s intent.  See, V.R.Pr.C. 1.6, Cmt. [10].
• D.  this situation is not covered by the Vermont Rules of Professional Conduct.

Question 3

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

My words “that person” refer to:

• An unrepresented person who is adverse to Lawyer’s client and who inadvertently communicated with Lawyer.
• B.  a represented person who is adverse to Lawyer’s client and who directly communicated with Lawyer without going through counsel.
• C.  A juror who approached Lawyer as the two were leaving the courthouse at the lunch break during a trial.
• D.  A person who discussed potential representation with Lawyer but who did not retain Lawyer.   See, V.R.Pr.C. 1.18 – Duties to Prospective Client.

Question 4

Later today, I’m doing a CLE for the VBA’s Bankruptcy Section. Depending on how the seminar goes, I might get to a section where I urge caution when it comes to (1) last minute changes to wire instructions; and (2) an out of state client who only communicates via email and who is seeking representation to assist in collecting a debt allegedly owed by someone in Vermont.

Each is an example of common ____________.   (It’ not just one word).

TRUST ACCOUNT SCAM.  For more, see these blog posts:

• Law offices should learn to identify trust account scams & discuss them with clients
• A lawyer’s professional responsibility to learn to identify trust account scams

Question 5

Again, I’m doing a presentation for the VBA’s Bankruptcy Section later today. So, bankruptcy is the topic for Queston 5.  

I’m feeling generous. One question involves an old-time holiday classic, while the other relates to a much modern pop culture reference to bankruptcy.  Choose your own adventure!

Question 5A – The Classic

Name the holiday movie in which George is so mad that Uncle Billy misplaced $8,000 that he yelled:

• “Where’s that money, you stupid, silly old fool? Where’s the money?! Do you realize what this means? It means bankruptcy and scandal and prison! That’s what it means. One of us is going to jail! Well, it’s not gonna be me!”

According to a current day bankruptcy expert:

• “It’s unclear whether George meant bankruptcy for himself or for the Building & Loan.  Even less clear is whether the B&L would have been eligible for bankruptcy protection under the Bankruptcy Act of 1898 (“banking corporations” were ineligible).  It definitely would not be eligible under Section 109 of the Bankruptcy Code (specifically excluding “building and loan associations”) from bankruptcy eligibility.”

IT’S A WONDERFUL LIFE

Question 5B – More Modern

My favorite pop culture bankruptcy.  It’s from a TV show that aired from 2005-2013.  The following lines are from Season 4’s episode Money. I’ve changed the speakers’ names to their first initials. Your task: name the show.

C:           Listen, I’ve got the answer. You declare bankruptcy, all your problems go away.

M:          How would that help Creed? In Monopoly when you go bankrupt, you lose.

C:           You don’t go by Monopoly man, that game is nuts. Nobody just picks up “get out of jail free” cards, those things cost thousands.

M:          That is a good point.

C:           Bankruptcy, M, is nature’s do-over. It’s a fresh start, it’s a clean slate.

M:          Like the witness protection program.

C:           Exactly.

O:           Not at all.

M:          I’ve always wanted to be in the witness protection program. Fresh start, no debts, no baggage. I’ve already got my name picked out, Lord Rupert Everton. I’m a shipping merchant who raises fancy dogs. That’s the life.

M.          (standing on a chair) I DECLARE BANKRUPTCY!

O:           Hey, I just wanted you to know that you can’t just say the word bankruptcy and expect anything to happen.

M.          I didn’t say it. I declared it.

THE OFFICE.  The scene is here.

Monday Morning Honors #288

Happy Monday! 

Friday’s questions are here.  The answers follow today’s Honor Roll. Special welcome to first-time honor roll member John Serafino!

So, I made a Thanksgiving-style dinner yesterday.  My mom came over to watch the UVM basketball game.  I surprised her with chicken (in my secret marinade) and all the fixins (I didn’t have the time or energy for a turkey). Notably, I strayed from the list that appeared in Friday’s intro.  I went with mashed potatoes, stuffing, cornbread, and green bean salad.  Although not pictured here, I (of courses) made gravy. Sadly, in an omission worthy of a sanction for violating the duty of competence, while I bought cranberry sauce, I forgot to serve it. Here’s the result:

Honor Roll

• Alberto Bernabe, Professor, UIC School of Law
• Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labor
• Benjamin Gould, Paul Frank & Collins
• Bob Grundstein
• Anthony Iarrapino, WiLo Law
• Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
• Doug Keehn, Assistance Attorney General, Medicaid Fraud & Residential Abuse Unit
• Melanie Kehne, Assistant Attorney General
• John T. Leddy, McNeil Leddy Sheahan
• Jeff Messina, Flynn Messina Law Group
• Herb Ogden
• Patrick Olmstead, Patrick Olmstead Law
• John Serafino, Ryan Smith & Carbine
• Joe Strain, Marsicovertere & Levine
• Jonathan Teller-Elsberg, Staff Attorney, New Hampshire Legal Assistance
• Keith Roberts, Darby Kolter & Roberts

ANSWERS

 Question 1

At a CLE, I mentioned “information relating to the representation of a client.”  I added that “the rule applies not only to privileged information, but to all information relating to the representation, no matter the source.” 

Which of the 7 Cs of Legal Ethics was I discussing?

CONFIDENTIALITY.  It’s not uncommon for lawyers to suggest to me that only privileged information is subject to the confidentiality rule.  That is not accurate.  See V.R.Pr.C. 1.6, Comment [3].

Question 2

The Vermont Rules of Professional Conduct include a rule that requires a lawyer to “submit to a confidential compliance review of ______________.”

• A.           Financial records, including trust account records.  See, V.R.Pr.C. 1.15A(c) and this blog post.
• B.           The lawyer’s CLE attendance.
• C.           A & B.
• D.           Neither A nor B.

Question 3

Which phrase is not in the same rule as the others?

• A. the time & labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal services properly.
• B.  keep the client reasonably informed about the status of the matter.
• C.  promptly comply with reasonable requests for information.
• D.  reasonably consult with the client about the means by which the client’s objectives are to be accomplished.

Option is Rule 1.5 and is part of the analysis used to assess the reasonableness of a fee.  Options B, C, D are aspects of Rule 1.4 and the duty of communication.

Question 4

What word do the rules define as meaning:

“the isolation of a lawyer from any participation in a matter through 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.”

“SCREENED.”  See, V.R.Pr.C. 1.0(k).

Question 5

Imagine that Lawyer has a website.  The website states that Lawyer specializes in a particular area of law.  The site includes a list of clients for whom Lawyer achieved “the ultimate success.”  The list includes the following “clients.”

• 2022:  Chocolate
• 2021:  Peanut Butter
• 2020:  Corn
• 2019:  Peas
• 2018:  Butter
• 2017:  Drumstick
• 2016:  Tater, Tot
• 2015:  Abe
• 2014:  Cheese, Mac
• 2013:  Popcorn
• 2012:  Cobbler, Gobbler

While Lawyer and website are imaginary, the “clients” I’ve listed are real.  And the dates correspond to the years in which those clients achieved what might arguably & truthfully be called the “ultimate Thanksgiving success.” 

This year, our imaginary lawyer’s very real future clients are traveling from a farm in Minnesota to Washington D.C., where they will spend a night at a luxury hotel before a very important meeting the next day.

What type of law does our imaginary Lawyer specialize in?

Securing Presidential Pardons for turkeys. 

Among others, the Clinton Herald and CNN have the story of this year’s turkeys, Liberty & Bell.

Monday Morning Honors #287

Happy Monday! 

Friday’s questions are here. The answers follow today’s Honor Roll.  Special welcome to first-time Honor Roll member Patrick Olmstead!

Honor Roll

• Evan Barquist, Montroll Oettinger & Barquist
• Alberto Bernabe, Professor, UIC School of Law
• Christopher Daudelin, Esq.
• Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labor
• Andrew Delaney, Martin Delaney & Ricci Law Group
• Benjamin Gould, Paul Frank & Collins
• Bob Grundstein
• Glenn Jarrett, Jarret/Hoyt
• Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
• Deb Kirchwey, Law Office of Deborah W. Kirchwey
• Elizabeth Kruska, Former President, Vermont Bar Association
• John T. Leddy, McNeil Leddy Sheahan
• Tom Little, Esq.
• Jeff Messina, Flynn Messina Law Group
• Herb Ogden, Esq.
• Patrick Olmstead, Patrick Olmstead Law
• Honorable John T. Valente, Vermont Superior Judge
• Keith Roberts, Darby Kolter & Roberts
• Jack Welch, Esq.
• Thomas Wilkinson, Cozen O’Connor

Answers

Question 1

Which of my 7 Cs of Legal Ethics relates to trust accounting?

Hint: the word does not appear in the Rules of Professional Conduct. However, the offense is so significant that the Vermont Supreme Court has suggested that a public reprimand, as opposed to a private admonition, will be the presumptive response.

COMMINGLING.  The Supreme Court opinion I referenced is here.

Question 2

I’ve long urged lawyers to plan for their own unavailability. In a similar vein, I’ve asked law firms to craft disaster plans.  Arguably, the duty to prepare for unavailability & disaster is part of the duty:

• A.  to keep a client reasonably updated on the status of a matter.
• B.  to provide a client with conflict-free representation.
• C.  to charge a reasonable fee.
• D.  to act with reasonable diligence and promptness while representing a client.  See, V.R.Pr.C. 1.3, Cmt. 5, and the blog post A lawyer’s duty to plan for their own unavailability.

Question 3

Lawyer called me with an inquiry. I listened, then responded: “I don’t know. Are you saying that you’ve concluded that your continued representation of Client will result in a violation of the rules? If so, yes.”

Give my response, it’s most likely that Lawyer called to discuss:

• A.   the crime-fraud exception to the attorney-client privilege.
• B.   whether Lawyer must withdraw from representing Client.  See, V.R.Pr.C. 1.16(a)(1). Withdrawal is required “if the representation will result in violation of the rules of professional conduct or other law.”
• C.   whether Lawyer must self-report to Disciplinary Counsel
• D.   Lawyer’s duty of candor to the tribunal.

Question 4

There’s a rule that that prohibits a certain type of communication with judges and jurors.  What’s the two-word phrase used to describe the type of communication that’s off-limits?

Ex parte.  See, V.R.Pr.C. 3.5(b).

Question 5

There’s a pending lawsuit in the Southern District of Florida in which lawyers for a proposed class of plaintiffs allege that a famed restaurant chain duped customers about the size of its burgers and sandwiches. A few weeks ago, lawyers for the chain filed a motion for sanctions, arguing that the plaintiffs’ lawyers made a “baseless and unprecedented complaint that it is somehow unlawful for a restaurant to display a beautiful photograph of menu items.”

So far, the civil action has included:

• Allegations that the chain uses pictures in advertisements and on its menu that show burgers that “overflow the bun” and deceptively make the burgers appear to be 35% bigger than they actually are;
• the defendant arguing that its menu boards are “painstakingly constructed by professionals” who take well-lit pictures of menu items and that, “of course, the same sandwiches assembled speedily in a quick-service restaurant, wrapped, and transported, will not look the same;” and,
• the judge already dismissing some of the plaintiffs’ claims, concluding that the defendant’s television and web ads did not promise a “size” that it failed to deliver.

Having grown up in the 80’s, I’m a huge fan of commercial jingles. Indeed, I still know the tune and every word that follows “hold the pickles, hold the lettuce” and it brought me great joy to belt out the jingle at the top of my lungs as I took a walk this morning.

Name the restaurant chain.

Burger King. 

Outlets that covered the story include Reuters and Above the Law.