Monday Morning Answers

Welcome to the week!  Every great work week starts on Monday!

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

Honor Roll

• Karen Allen, Esq.
• Evan Barquist, Montroll Backus & Oettinger
• Penny Benelli, Dakin & Benelli
• Alberto Bernabe, Professor, John Marshall Law School
• Beth DeBernardi, Administrative Law Judge, VT. Dept of Labor
• Andrew Delaney, Martin Delaney & Ricci Law Group
• Cary Dube, Bergeron, Paradis, Fitzpatrick
• Erin Gilmore, Ryan Smith & Carbine
• Laura Gorsky, Esq.
• Benjamin Gould, Paul Frank & Collins
• Bob Grundstein, Esq.
• Anthony Iarrapino, Wilschek & Iarrapino
• Glenn Jarrett, Jarrett & Luitjens
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Jeanne Kennedy, JB Kennedy Associates, Blogger’s Mom
• Elizabeth Kruska, President-Elect, VBA Board of Managers
• John Leddy, McNeil, Leddy, & Sheahan
• Lon McClintock, McClintock Law Offices
• Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
• Jeffrey Messina, Bergeron Paradis Fitzpatrick
• Hal Miller, First American
• Kristen Shamis, Monaghan, Safar, Ducham
• Jay Spitzen, Esq.
• Zachary York, Vermont Superior Court, Civil Division

Answers

Question 1

In Vermont, if a lawyer is precluded from representing a client due to a conflict with another client or a former client, the general rule is that the conflict ___________ imputed to other lawyers in the same firm.

• A.  is  See, V.R.Pr.C. 1.10
• B.  is not

Question 2

There’s a rule that requires lawyers to provide clients with diligent and prompt representation.  A comment to the rule suggests that a sole practitioner’s duty of diligence may include _____________:

• A.   paying a bookkeeper to reconcile the trust account
• B.   transitioning to a cloud-based practice management system
• C.  adopting a succession plan.  V.R.Pr.C. 1.3, Comment [5]
• D.  all the above

Question 3

Attorney & Lawyer both represent Client in the same matter, but do not work in the same firm.  Client agrees that they may share in the fee.  Client’s agreement is in writing and the total fee is reasonable.

True or False:  for the fee division to comply with the rule, it must be in proportion to the services that each performed.

False.  Either (a) the fee must be in proportion to the services that each perform; or (b) each lawyer must assume joint responsibility for the representation.  V.R.Pr.C. 1.5(e)(1).  Per Comment [7] “joint responsibility for the representation entails financial and ethical responsibility for the representation as if the lawyers were associated in a partnership.”

Question 4

This question is probably not fair. But I’m out of ideas, running out of time, and, further, it’s an issue I think we’ll soon be discussing.

Client asks whether you use “cold storage” or a “hot wallet.”  Client assumes you accept payment via:

• A.  Venmo
• B.  ACH Transfer
• C.  Blockchain
• D.  Cryptocurrency

In 2018, I blogged about a Nebraska advisory opinion that addresses issues related to accepting payment via cryptocurrency.  Bitcoin, for instance, is cryptocurrency.  One of the questions: may a lawyer hold cryptocurrency in trust?  I noted:

“Yes, but remember: bitcoins are property, not actual currency.  Rule 1.15 requires lawyers to safeguard client property.  To comply with the duty to safeguard cryptocurrency, a lawyer would need a secure digital wallet.  Of course, if the lawyer accepts cryptocurrency and converts it to U.S. dollars, the funds, if not yet earned, must go into trust.”

Question 5

Legal ethics in the news again!

There’s a rule on trial publicity.  Generally, it prohibits extrajudicial statements that a lawyer knows or should know will have a substantial likelihood of materially predjucing a proceeding.  There’s also a rule that prohibits ex parte communications with jurors.

Donna Rotunno is an attorney who is currently representing a client in a high-profile criminal trial.  The case went to the jury on Tuesday, two days after Newsweek published an opinion piece authored by Rotunno. In it, she wrote:

“I implore the members of this jury to do what they know is right and was expected of them from the moment they were called upon to serve their civic duty in a court of law.”

The prosecutor called the opinion piece “completely, 100% inappropriate behavior. It borders on tampering with the jury.”  Imposing a gag order, the presiding judge said:

“Defense team you are ordered to refrain from communicating with the press until there is a verdict in the case.  I would caution you about the tentacles of your public relations juggernaut.”

Who is Attorney Rotunno’s client in the case?

Harvey Weinstein

Monday Morning Answers

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

Honor Roll

• Karen Allen, Esq.; Karen Allen Law
• Matthew Anderson, Pratt Vreeland Kennelly & White
• Evan Barquist, Montroll Backus & Oettinger
• Erin Gilmore, Ryan Smith & Carbine
• Laura Gorsky, Esq.
• Robert Grundstein, Esq.
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
• Jeanne Kennedy,  JB Kennedy Associates, Blogger’s Mom
• Mark Kennedy, Father of the Blogger
• John Leddy, McNeil Leddy & Sheahan
• Tom Little, Little & Cicchetti
• Pam Loginsky, Washington Association of Prosecuting Attorneys
• Lon McClintock, McClintock Law Offices
• Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
• Jeffrey Messina, Bergeron Paradis Fitzpatrick
• Hal Miller, First American
• Herb Ogden, Esq.
• Dan Richardson, Tarrant Gillies & Richardson
• Jim Runcie, Ouimette & Runcie
• Jay Spitzen, Esq.
• Robyn Sweet, CORE Registered Paralegal, Cleary Shahi  & Aicher
• Jason Warfield, Vermont Law School, Class of 2020
• Thomas Wilkinson, Jr., Cozen O’Connor
• Zachary York, Vermont Superior Court, Chittenden Civil 

Answers

Question 1

The Vermont Bar Association’s Pro Bono Committee meets next week to review nominations for the 2020 Pro Bono Award. I chair the committee, so if you want to nominate a lawyer, email me the nomination.

By rule, lawyers are expected to provide _________________:

• A.   pro bono services to those in need.
• B.   50 hours of pro bono legal services.  V.R.Pr.C. 6.1
• C.   60 hours of pro bono legal services.
• D.   a reasonable amount of pro bono legal services.

Question 2

A lawyer called me with an inquiry. I listened, then responded “the first question is whether the new matter is the same as or substantially related to the old matter.”

Given my response, the lawyer called to discuss the rule on:

• A.  candor to a tribunal.
• B.  communication with a juror.
• C.  communication with a represented person.
• D.  conflicts of interest.  V.R.Pr.C. 1.9(a)

Question 3

Which is expressed in a different rule than the others?

• A.  don’t state or imply that you’re disinterested.
• B.  don’t contact her unless the clerk has certified that her term is complete.
• C.  if she misunderstands your role, correct the misunderstanding.
• D.  if her interests are likely to conflict with your client’s, don’t give her any legal advice other than the advice to secure counsel.

B is in Rule 3.5, the rule that addresses communicating with jurors.  A, C, and D are expressed in Rule 4.3, the rule that sets out a lawyers duties when dealing with an unrepresented person.

Question 4

At a CLE, I said “the rule includes 3 exceptions:

1. the testimony relates to an uncontested issue;
2. the testimony relates to legal services provided in the case; or
3. disqualifying the lawyer would cause substantial hardship to the client.”

I was discussing the rule that applies when a necessary witness in a trial is _______:

• A.   a lawyer who is representing a party to the same trial.  V.R.Pr.C. 3.7
• B.   a former client of a lawyer who is representing a party to the same trial.
• C.   a current client of a lawyer who is representing a party to the same trial.
• D.   a lawyer who used to be the presiding judge’s law partner.

Question 5

With Captain Kennedy in mind this week, a two-part question:

In an argument made during a jury trial that took place in 1770, a criminal defense attorney said:

• “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence . . . It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished. But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, ‘whether I do good or whether I do evil is immaterial, for innocence itself is no protection,’ and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.”

Name the lawyer and the event that resulted in the lawyer’s clients being charged.

John Adams.  The Boston Massacre.

 

 

Monday Morning Answers #190

Welcome to Monday!

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

Thanks for all the stories about school closings!  From a few of Burlington’s oldest AM stations, to the scroll on the tv screen.  Loved them all!

Honor Roll

• Evan Barquist, Montroll Backus & Oettinger
• Geoffrey Bok, Esq.
• Benjamin Gould, Paul Frank & Collins
• Laura Gorsky, Esq.
• Bob Grundstein, Esq.
• Mark Heyman, General Counsel, Logic Supply
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
• Jeanne Kennedy, JB Kennedy Associates, Mother of the Blogger
• John Leddy, McNeil Leddy & Sheahan
• Tom Little, Little & Cicchetti
• Pam Loginsky, Washington Association of Prosecuting Attorneys
• Lon McClintock, McClintock Law Offices
• Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
• Hal Miller, First American Title
• Jim Runcie, Ouimette & Runcie
• Jay Spitzen, Esq.
• Robyn Sweet, CORE Registered Paralegal, Cleary Shahi  & Aicher
• Jonathan Teller-Elsberg, Vermont Law School, JD Candidate
• Zachary York, Vermont Superior Court, Chittenden Civil 

Answers

Question 1

In legal ethics, the word “imputed” is most often associated with:

• A.   The advertising rules
• B.   Interest earned on lawyer trust accounts
• C.  Conflicts of Interest.  See, V.R.Pr.C. 1.10
• D.  Technology & The Duty of Competence

Question 2

At a CLE, I answered a question by saying “the rule is this: if it’s yours, get it out.”

What general topic was the question about?

Trust Account Management/Commingling funds.  See, V.R.Pr.C. 1.15(a), and my blog post Don’t Commingle

Question 3

Under the Rules of Professional Conduct, which is treated differently than the others?

• A.  whether to settle.  See, Rule 1.2(a). This is one of the decisions left to the client.  B & C are left to the lawyer’s discretion in consultation with the client.
• B.  whether to depose a particular witness.
• C.  whether to file a motion to dismiss.
• D.  Trick question. The rules treat each the same.

Question 4

In a dispute between Plaintiff and Organization, Plaintiff’s counsel has actual knowledge that Attorney represents Organization.  Without providing notice to Attorney or asking permission, Plaintiff’s counsel interviews a former employee of Organziation about the matter that is the subject of the dispute.

Which is most accurate under Vermont’s Rules of Professional Conduct:

• A. Plaintiff’s counsel did not violate the rules.  V.R.Pr.C. 4.2, Comment [7] (“Consent of the organization’s lawyer is not required for communication with a former constituent.”)
• B. Plaintiff’s counsel violated the rules.
• C.  Whether it’s a violation depends on whether former employee was in “the control group.”
• D. Whether it’s a violation depends on whether the interview was before or after a complaint had been filed and served.

Question 5

Real life professional responsibility & ethics!

Later today in San Francisco, opening statements will begin in a $1 billion trade secrets case.  Last Friday, the judge denied the plaintiff’s attorneys’ motion to withdraw, a motion in which they argued that they were “unable to further represent plaintiff and cannot try the case.”  The attorneys added that their obligations to maintain client confidences prevented them from providing the court with additional details.

Once the trial begins, it’s expected that a lawyer who used to represent the plaintiff will testify.  Plaintiff alleges that the lawyer lost or destroyed e-mails that are critical to the case.

The case revolves around the plaintiff’s claim that the defendants stole his idea for a “limo timeshare service” and developed it into their incredibly successful business.

What business did the defendants develop?

UBER TECHNOLOGIES (The “Uber App”).  Note: per The Verge, the case settled this weekend.

Monday Morning Answers #188

Happy Monday!

Friday’s questions are here. Today’s answers follow the honor roll.

But first, today we pause to honor Martin Luther King, Jr.

In the introduction to Friday’s quiz, I reiterated an argument I’ve made before: when it comes to addressing the problems that most affect the legal system & profession, I believe that the collective we are too often too quick to eschew small things that will result in incremental improvement. We prefer great solutions that fix everything at once. Our response to the justice gap is an example.  On the other hand, when it comes to wellness, we’re fortunate that some offices & firms realize that small things matter.  Still, in my view, the profession tends to make perfect the enemy of good.

Here’s a quote from Reverend King:

The quote inspires me.

In 2020, I know that I won’t be able to create or accomplish great solutions to the profession’s problems.  But, every single day, my job will give me a chance to be great at something small that helps someone through the day.  I accept the challenge. If you join me, the small things will add up.

Honor Roll

• Karen Allen, Esq.; Karen Allen Law
• Matthew Anderson, Pratt Vreeland Kennelly & White
• Evan Barquist, Montroll Backus & Oettinger
• Penny Benelli, Dakin & Benelli
• Beth DeBernardi, Administrative Law Judge, VT Dept. of Labor
• Erin Gilmore, Ryan Smith & Carbine
• Robert Grundstein, Esq.
• Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
• Aileen Lachs, Office of United States Senator Patrick Leahy
• John Leddy, McNeil Leddy & Sheahan
• Kevin Lumpkin, Sheehey Furlong & Behm
• Jack McCullough, Vermont Legal Aid, Project Director – Mental Health Law Project
• Hal Miller, First American
• Herb Ogden, Esq.
• Nancy Hunter Rogers, Chamberlin School 
• Jim Runcie, Ouimette & Runcie
• Ashley Taylor, Horsley Lajoie Goldfine
• Jonathan Teller-Elsberg, Vermont Law School, JD Candidate
• Allison Bates Wannop, Special Counsel, Vermont Department of Public Service
• Zachary York, Vermont Superior Court, Chittenden Civil 

 

ANSWERS

Question 1

Lawyer represents Client in Client v. Adversary.   Lawyer knows that Attorney represents Adversary.     Adversary calls Lawyer directly to discuss settlement.   Attorney has not consented to direct communication between Lawyer and Adversary.  Which is most accurate?  The no-contact rule:

• A.  Does not apply because Adversary initiated the communication.
• B.   Prohibits Lawyer from communicating with Adversary.  Rule 4.2 applies even if the represented person initiates the communication.  See, Comment [1].
• C.   Prohibits Lawyer from communicating with Adversary, unless Adversary is also a lawyer.
• D.   None of the above is even close to accurate.

Question 2

Me: “Do not state or imply that you’re disinterested.  And, if you know that the person misunderstands your role, correct their misunderstanding.”

Given my statement, the “person” must be ______.

• A.  adverse to lawyer’s client
• B.  unrepresented.   See, Rule 4.3.  It applies whenever dealing with anyone who is unrepresented, no matter their role or alignment.
• C.  a witness
• D.  a juror

Question 3

Lawyer represents Client in Client v. Organization.   Lawyer knows that Attorney represents Organization.  Under the Rules of Professional Conduct, does Lawyer need Attorney’s consent to discuss the case with former employees of Organization?

• A.   No.  See, Rule 4.2, Comment [7].
• B.    Yes.
• C.  Yes, but only if they were part of the “control group.”
• D.   Yes, unless their departure from Organization was involuntary.

Question 4

Lawyer drafted a will for Client.  Lawyer’s child benefits under the will.   For Lawyer to avoid a disciplinary prosecution:

• A.   Client must be related to Lawyer’s child. V.R.Pr.C. 1.8(c).
• B.   Lawyer must be married to Client.
• C.   Client must be an attorney.
• D.  None of the above.  This is a violation no matter what.

Question 5

Two weeks in a row!

Yes, I’m on my way to Canada.  But I’ll be back.  Mom – don’t worry. When I finally decide to move, I’ll tell you before I announce it on the blog.

Anyhow, Her Royal Highness the Duchess of Sussex was born in Canada. Later, she played a paralegal-turned-lawyer on a long-running tv show.  As I alluded to last week, she and Prince Harry recently caused a commotion in the Commonwealth by announcing their plans to leave England for Canada (and the U.S.)

Originally coined by a British tabloid, what is the one-word name that encompasses anything & everything related to the uproar over the Prince & Princess’s decision to depart Great Britain?

MEGXIT

 

 

Monday Morning Answers #187

When it comes to this blog, the royal watchers are alive & well!

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

Honor Roll

• Karen Allen, Esq.; Karen Allen Law
• Matthew Anderson, Pratt Vreeland Kennelly & White
• Evan Barquist, Montroll Backus & Oettinger
• Penny Benelli, Dakin & Benelli
• Alberto Bernabe, Professor, John Marshall Law School
• Corinne Deering, PACE Registered Paralegal®.  Paul Frank & Collins
• Erin Gilmore, Ryan Smith & Carbine
• Laura Gorsky, Esq.
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Jeanne Kennedy,  JB Kennedy Associates, Blogger’s Mom
• John Leddy, McNeil Leddy & Sheahan
• Pam Loginsky, Washington Association of Prosecuting Attorneys
• Lon McClintock, McClintock Law Offices
• Jeffrey Messina, Bergeron Paradis Fitzpatrick
• Hal Miller, First American
• Nancy Hunter Rogers, Chamberlin School 
• Jim Runcie, Ouimette & Runcie
• Jay Spitzen, Esq.
• Jonathan Teller-Elsberg, Vermont Law School, JD Candidate
• Jason Warfield, Vermont Law School, Class of 2020
• Lucia White, Practice Manager/Paralegal, Dunkiel Saunders 
• Thomas Wilkinson, Jr., Cozen O’Connor
• Zachary York, Vermont Superior Court, Chittenden Civil 

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.  V.R.Pr.C. 1.16(b)(5)
• D.  is not mentioned in the rules of professional conduct

Question 2

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.  V.R.Pr.C. 8.3
• D.  Whether reciprocal discipline would be imposed in Vermont as a result of Lawyer being sanctioned in another state.

Question 3

Law Firm has a Facebook page.  Partner posts “the first 25 to ‘like’ this page win a free iPod!”  Which rule might the post violate?

• A.   The rule that prohibits a lawyer from paying another to recommend a lawyer’s services. See my blog post: Like to win a Prize!
• B.   The rule that prohibits the unauthorized practice of law.
• C.   The rule on communicating with a represented person.
• D.   Last month, the Vermont Supreme Court ruled that such a statement does not violate the Vermont Rules of Professional Conduct.

Question 4

By rule, a lawyer shall not disburse from the trust account:

• A.   True.
• B.   Without “collected funds” and there are no exceptions.
• C.   Without “collected funds” but there are some exceptions.  See my blog post: Disbursing without Collected Funds
• D.   Without the client’s consent, confirmed in writing.

Question 5

Following Caesar’s assassination, Brutus was forced to leave Rome.

One of my favorite fictional legal professionals is Rachel Zane.  In the television show Suits, she worked for many years as a paralegal before finally passing the LSAT, getting into law school, and becoming a lawyer.

In real life, the actress who plays Zane made headlines this week, not for leaving Rome, but for leaving her husband’s home country.

Who is the actress who played Rachel Zane in Suits?

Her Royal Highness The Duchess of Sussex, Meghan Markle

20 Answers for 2020

Wow!

On Friday, I posted 20 questions for 2020.  Far more than the usual 5, I didn’t expect anyone to take time to submit answers.  Rather, the post was meant to serve as a resource addressing some of the basics on professional responsiblity and ethics in Vermont.

But submissions I received!  Thank you!  The answers follow today’s unexpectedly large Honor Roll.

Honor Roll

• Karen Allen, Esq.
• Penny Benelli, Dakin & Benelli
• Andrew Delaney, Martin & Delaney Law Group
• Laura Gorsky, Esq.
• Bob Grundstein, Esq.
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Elizabeth Kruska, President-Elect, VBA Board of Managers
• Jordana Levine, Marsicovetere & Levine
• Hal Miller, First American
• Kristen Shamis, Monaghan, Safar, Ducham
• Jay Spitzen, Esq.
• Jason Warfied, Vermont Law School, JD Candidate
• Caryn Waxman, Barber & Waxman
• Allison Bates Wannop, Special Counsel, Vermont Department of Public Service
• Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

The rules with which Vermont attorneys must comply went into effect on September 1, 1999.  They are called:

• A.   The Vermont Rules of Professional Conduct.
• B.   The Vermont Code of Professional Responsibility.
• C.   The rules.
• D.   Those damn rules.

Question 2

Vermont’s attorney regulation program is called the “Professional Responsibility Program.”  The PRP is part of the:

• A.  The Secretary of State’s Office of Professional Regulation
• B.   The Vermont Bar Association
• C.   The Vermont Judiciary.  Chapter II, Section 30 of the Vermont Constitution vests the Supreme Court with the authority to structure an attorney discipline and disability system.  To that end, the Court has promulgated Administrative Order 9, the order creating the Professional Responsibility Program.
• D.   The Office of the Attorney General

Question 3

Vermont lawyers must carry professional liability insurance.

• A.    True. It is required by statute.
• B.    True. It is required by the rules.
• C.     True, but there is an exception for government employees & in-house counsel.
• D.    False.  (I intend to blog on this in the coming weeks & months, maybe more than once.)

Question 4

Rule 1.1 requires lawyers to provide clients with competent representation.  In 2018, Vermont became the 33rd state to adopt a Comment to Rule 1.1 that makes it clear that the duty of competence includes a duty to understand the risks and benefits of _______________.

RELEVANT TECHNOLOGY

Question 5

Speaking of the comments to Rule 1.1, in 2019, Vermont added another comment to the rule.  Following the recommendation of the ABA and several commissions that looked at this important issue, the new comment makes it clear that _____________ is an aspect of competence.

• A.  Well-being.   (My post: Well-Being is an Aspect of Competence)
• B.   Coding
• C.   Experience in a variety of practice areas
• D.   All of the above.

Question 6

Rule 1.2(d) prohibits a lawyer from assisting or advising a client to engage in conduct that violates the law.  In Vermont, as with a few other states, that poses issues for lawyers whose clients are involved with a particular industry.

▪What’s the industry?

Cannabis/Marijuana.  The concerns led to the Court adopting Comment 14 to Rule 1.2(d). The Comment clarifies that a lawyer does not violate the rule by assisting and advising clients on matters that are legal under state law.

Question 7

Rule 1.3 requires lawyers to act with reasonable diligence while representing clients.  A comment to the rule suggests that the duty requires sole practitioners to:

• A.  have a succession plan
• B.  use a cloud-based trust accounting system
• C.  hire a bookkeeper (if only part-time) to reconcile the trust account
• D.  Either B or C.

Question 8

Under Vermont’s rules, a lawyer _______ disclose a client’s intent to commit suicide.

• A.    Must
• B.    Must not
• C.    May.   V.R.Pr.C. 1.6(c) Comment[10]

Question 9

In Vermont, if a prospective client meets with a lawyer in good faith, but does not retain the lawyer, the lawyer’s duty of loyalty is relaxed vis-à-vis the client. That is, if the lawyer did not receive information that could be significantly harmful to the prospective client, the lawyer may appear adverse to the prospective client.

However, another duty is not relaxed.

Which duty remains as stringent as if an actual attorney-client relationship had been formed?

The duty to maintain the prospective client’s confidences.  See, V.R.Pr.C. 1.18

Question 10

In Vermont, how much of a lawyer’s own money may the lawyer keep in a client trust account?

• A.   $0
• B.   No more than $100.
• C.   No more than $500.
• D.   An amount necessary to cover bank fees & service charges.  V.R.Pr.C. 1.15(b)

Question 11

In Vermont, a lawyer may not disburse funds from trust unless the deposit that is the source of the disbursement constitutes “collected funds.”

Is the following statement true or false?

• There are no exceptions to the rule.

That is false.  There are several instruments that lawyers my presume to constitute “collected funds” upon deposit.  These exceptions appear in Rule 1.15(g).

Question 12

Fill in the blank (it’s way more than one word):

• Unlike many other states, Vermont has a rule that specifically prohibits a lawyer from ________________ in order to gain an advantage in a civil matter.

Present, Threaten to  Present, or Participate in Presenting Criminal Charges

Question 13

Fill in the blank:

“In representing a client, a lawyer shall not communicate on the subject of the representation with a ____________ the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.”

• A.  Person.   V.R.Pr.C. 4.2
• B.  Party

Question 14

In Vermont, which set of rules is relaxed for lawyers who provide pro bono services under the auspices of a non-profit or court approved program?

The rules on _________:

• A.   Trust Account Management
• B.   Communicating with a Represented Person/Party
• C.   Confidences
• D.  Conflicts of Interest.   V.R.Pr.C. 6.5.

Question 15

Under Vermont’s legal ethics rules, when a lawyer receives a document relating to the representation of a client that the lawyer knows or should know was inadvertently sent, the lawyer ________________.

• A.   must notify the sender.  V.R.Pr.C. 4.4(b).
• B.   must notify the client and abide by the client’s instructions on whether to notify the sender.
• C.  must notify the client and abide by the client’s instructions on whether to use or return the document.
• D.   B and C.

Question 16

By rule, a pooled-interest bearing trust account must be reconciled:

• A.   Quarterly.
• B.   Periodically, but no less than quarterly.
• C.   Timely, with “timely” meaning “no less than monthly.”  V.R.Pr.C. 1.15A(a)
• D.  Regularly.

Question 17

By rule, what must a Vermont lawyer maintain for 6 years following the termination of a representation?

• A.  The client’s file.
• B.   A copy of the client’s file.
• C.   Records of funds or property held for the client during the representation.  V.R.Pr.C. 1.15(a).
• D.   Copies of any advertisement that caused the client to inquire about representation.

Question 18

The matter is Swift v Braun. 

• Associate works at Small Firm.  Small Firm represents Swift.
• Large Firm represents Braun.
• Associate accepts a job at Large Firm.

Unver Vermont’s rules, can Large Firm continue to represent Braun?

• A.    Yes.
• B.    Yes, if Associate is screened from working on Swift v. Braun.
• C.   No.
• D.   It depends whether Associate was personally & substantially involved in working on Swift v Braun while at Small Firm.  V.R.Pr.C. 1.10(a).

Questions 19, 20 and bonus

In 2019, the ABA updated its list of the Top 25 legal movies of all-time.  2 of the top 3 are set in the same state.

• 19.  Name one of the movies.   To Kill a Mockingbird
• 20.  Name the other.  My Cousin Vinny
• Bonus: name the state.  Alabama

Happy 2020!

Monday Morning Answers #185

What a fantastic morning!   Friday’s questions are here.  The answers follow today’s honor roll.

Honor Roll

• Karen Allen, Esq.
• Matthew Anderson, Pratt Vreeland Kennelly Martin & White
• Evan Barquist, Montroll Backus & Oettinger
• Penny Benelli, Dakin & Benelli
• Erin Gilmore, Ryan Smith & Carbine
• Bob Grundstein, Esq.
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
• Elizabeth Kruska  & Wesley Lawrence
• John Leddy, McNeil, Leddy, & Sheahan
• Pam Loginsky, Washington Association of Prosecuting Attorneys
• Lon McClintock, McClintock Law Offices
• Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
• Rob McDougall, Assistant Attorney General; Chief -Environmental Protection Division
• Hal Miller, First American
• Kristen Shamis, Monaghan, Safar, Ducham
• Robyn Sweet, CORE Registered Paralegal, Cleary Shahi  & Aicher
• Jonathan Teller-Elsberg, Vermont Law School, JD Candidate
• Jason Warfied, Vermont Law School, JD Candidate
• Jack Welch, Esq.
• Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

At a CLE, visions of sugarplums distract you.  Yet, you vaguely hear me say something to the effect of “the rule relaxes the duty of loyalty owed to that person, but not the duty to maintain that person’s confidences.”

When I said, “that person,” I was referring to:

• A.   a client who sues a lawyer for malpractice.
• B.   a client who files a disciplinary complaint against a lawyer.
• C.   a prospective client who met with but did not retain a lawyer.  See, V.R.Pr.C. 1.18
• D.   all of the above.

Question 2

Attorney called me with an inquiry.  I listened, then replied, “the rule requires you to take reasonable remedial measures. A comment to the rule says that the first step is to remonstrate with your client.”

Given my response, it’s most likely that Attorney called because Attorney:

• A.  Learned that Client had presented false evidence to a tribunal.  See, Rule 3.3 and my blog post “Lawyer’s duty upon learning that a client or witness lied.”
• B.   Received information from opposing counsel that she reasonably believes opposing counsel inadvertently produced.
• C.   Discovered that her law firm previously represented the other party in a substantially related matter.
• D.  Communicated with a represented person without the consent of that person’s lawyer.

Question 3

Lawyer called me with an inquiry. I listened, then said “yes, for the sole purpose of paying service charges or fees on the account, and only in an amount necessary for that purpose.”

What did Lawyer call to ask?

Whether Lawyer could deposit Lawyer’s own money into Lawyer’s client trust account.  See, V.R.Pr.C. 1.15(b).

Question 4

Rule 3.4(a) prohibits a lawyer from unlawfully obstructing another party’s access to evidence or unlawfully altering, destroying or concealing material that has potential evidentiary value.

Earlier this week, some other lawyers and I met with the lawyers participating in the VBA’s Incubator Program.  Among other things, we discussed the legal ethics of social media. We mentioned that, generally, a lawyer does not violate Rule 3.4 by advising a client to delete or “take down” information from social media, so long as ____________________.

• A.   the conduct does not constitute spoliation of evidence.
• B.   the conduct is not otherwise illegal.
• C.    the lawyer takes appropriate action to advise the client to preserve the information should it become discoverable or relevant.
• D.   All of the above.  Many advisory ethics opinions have reached this conclusion. Among them, the Pennsylvania Bar Association’s Formal Opinion 2014-300.

Question 5

There’s a holiday movie that involves questionable conduct by the prosecutor, defense attorney, and judge.

The movie focuses on Kris, a seasonal employee at a department store in New York City. Kris got into hot water after whacking a fellow employee over the head with an umbrella. Soon thereafter, the state initiated involuntary commitment proceedings.  The prosecutor’s entire case rested on Kris’s claims to be someone who, according to the state, did not exist.

Fred represented Kris.  He did so as much for his romantic interest in Doris, Kris’s boss, as for his interest in providing Kris with competent and diligent representation.

In the end, Judge Henry X. Harper refused to commit Kris.  His decision was based on several factors, including:

1. a politician’s ex parte communication to the judge that the judge would certainly lose his re-election bid if he ruled that the person Kris claimed to be did not exist; and,
2. 21 bags of “dead letters” addressed to the person who Kris claimed to be.  The United States Post Office delivered them to Kris at the courthouse during the hearing.

Judge Harper concluded that if the federal government (the Post Office) agrees that Kris is who he claims to be, then the state has no business saying otherwise.

Following the hearing, Fred asked Doris to marry him.

In the movie, who does Kris claim to be?

Santa Claus (the movie is Miracle on 34th Street)

Monday Morning Answers #184

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

Honor Roll

• Karen Allen, Esq.
• Matthew Anderson, Pratt Vreeland Kennelly Martin & White
• Evan Barquist, Montroll Backus & Oettinger
• Alberto Bernabe, Professor, John Marshall Law School
• Anna Black, Stackpole & French
• Andrew Delaney, Martin & Delaney
• Laura Gorsky, Esq.
• Bob Grundstein, Esq.
• Tammy Heffernan, Esq.
• Glenn Jarrett, Jarrett & Luitjens
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
• John Leddy, McNeil, Leddy, & Sheahan
• Tom Little, Little & Cicchetti
• Pam Loginsky, Washington Association of Prosecuting Attorneys
• Lon McClintock, McClintock Law Offices
• Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
• Hal Miller, First American
• Jim Runcie, Ouimette & Runcie
• Kristen Shamis, Monaghan, Safar, Ducham
• Jonathan Teller-Elsberg, Vermont Law School, JD Candidate
• Jack Welch, Esq.

Question 1

If Lawyer’s continued representation of a client will result in a violation of the Rules of Professional Conduct, Lawyer _____________.

• A.    may withdraw.
• B.    shall withdraw.  V.R.Pr.C. 1.16(a)(1)
• C.    oddly, this situation is not mentioned in the Vermont Rules of Professional Conduct.

Question 2

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. Other doesn’t interfere 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 for Lawyer’s representation of Client.  V.R.Pr.C. 1.8(f).

Question 3

Later today at the Bankruptcy CLE, I’m going to mention “the 6 Cs of Legal Ethics.”  Competence, Communication, Confidentiality, Conflicts, Candor, and Civility.

There’s actually a 7^th “C”, but the word does not appear anywhere in the rules.  Rather, it’s the word we use to refer to a violation of the duty to hold property of clients and third persons separate from the lawyer’s own property.

What’s this 7th “C”?

Commingling

Question 4

Lawyer represents Kennedy.   This morning, Kennedy gave Lawyer a bank check for $6,000 to pay for various expenses related to the representation, including legal fees owed to Lawyer.  Lawyer did not have time to make it to the bank today but intends to deposit Kennedy’s check on Monday.

Honestly, Kennedy is a pain.  He hasn’t paid in a long time and has a hefty outstanding bill.

Lawyer’s trust account holds funds that belong to clients other than Kennedy. This afternoon, Lawyer wants (finally) to pay herself for legal services provided to Kennedy by transferring funds from the trust account to her operating account.  Then, on Monday, Lawyer intends to replace those funds by depositing Kennedy’s bank check into trust.

Which is most accurate?

• A.   Good plan, but only because it’s a bank check, not a personal check.
• B.   Good plan, if Lawyer charges Kennedy a reasonable fee.
• C.   Bad plan, because the bank check is for more than $5,000.
• D.   Bad plan, because the disbursement would take place before Lawyer deposits Kennedy’s bank check into her trust account.  V.R.Pr.C. 1.15(f).

Question 5

Today is the 154th anniversary of the ratification of the 13th Amendment to the United States Constitution, the amendment that abolished slavery.

One of the members of Congress who was instrumental in drafting and passing the 13th Amendment was a “radical republican” who was born & raised in Vermont.  After leaving Vermont, he practiced law in Pennsylvania.  As a trial lawyer, legend has it that he responded to a judge’s warning that he was “manifesting contempt” by saying “Sir, I’m doing my best to conceal it.”

In 2012, Tommy Lee Jones played him in a movie about Abraham Lincoln and won the Academy Award for Best Supporting Actor .

Name the lawyer who was born & raised in Vermont and who played a critical role in drafting, passing, and ratifying the 13th Amendment.

Danville’s own Thaddeus Stevens

Monday Morning Answers #183

Welcome to Monday!  Friday’s questions are here.  So many readers miss Bove’s!  The answers follow today’s Honor Roll.

Honor Roll

• Karen Allen, Esq.; Karen Allen Law
• Evan Barquist, Montroll Backus & Oettinger
• Penny Benelli, Dakin & Benelli
• CeCe Conrad, Costello, Valente & Gentry
• Honorable John M. Conroy, United States Magistrate Judge, District of Vermont
• Corinne Deering, PACE Registered Paralegal®.  Paul Frank & Collins
• Erin Gilmore, Ryan Smith & Carbine
• Robert Grundstein, Esq.
• Glenn Jarrett, Jarrett & Luitjens
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
• Elizabeth Kruska, President-Elect, VBA Board of Managers
• John Leddy, McNeil Leddy & Sheahan
• Tom Little, Little & Cicchetti
• Pam Loginsky, Washington Association of Prosecuting Attorneys
• Hal Miller, First American
• Herb Ogden, Esq.
• Kristen Shamis, Monaghan, Safar, Ducham
• Jonathan Teller-Elsberg, Vermont Law School, JD Candidate
• Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

Consider the following: (1) the time & labor required; (2) the results obtained; (3) the lawyer’s experience, reputation and ability.

Each is mentioned in the rule that governs:

• A.   Competence
• B.   Diligence
• C.   Conflicts
• D.   Fees  V.R.Pr.C. 1.5

Question 2

At a CLE, I give the following short answer to a question: “(1) the client gives informed consent; or (2) it’s impliedly authorized to carry out the representation.”  Most likely, it was a question on the rule that governs:

• A.  Conflicts of Interest – Concurrent Clients
• B.  Conflicts of Interest – Former Clients
• C.  Confidentiality of Information V.R.Pr.C. 1.6(a) (my comments are two of the exceptions to the rule against disclosing information relating to the representation.)
• D.  Disbursed funds from trust in reliance upon a deposit that does not yet constitute “collected funds.”

Question 3

Attorney called me with an inquiry. I listened, then said “the rule says that you can’t approach her in person, by phone, or by real-time electronic communication unless she’s (1) a lawyer; or (2) someone with whom you have family, close personal, or prior professional relationship.”

Who is the “she” I referred to in my response?

• A.  a prospective client from whom Attorney wants to solicit employment.  V.R.Pr.C. 7.3
• B.  a juror.
• C.  a represented witness in a matter in which Attorney represents a party.
• D.  an employee of an organization that is represented in a matter in which Attorney’s client is adverse to the organization.

Question 4

Last month, Lawyer served as a mediator in Oswald v. Ruby.  The matter did not resolve at mediation. Now, Ruby wants to retain Lawyer in the same matter.

Which is most accurately states the rule? Lawyer:

• A.  may not represent Ruby.
• B.  may represent Ruby if both Oswald & Ruby give informed consent, confirmed in writing.  V.R.Pr.C. 1.12(a)
• C.   may represent Ruby if Oswald did not disclose in the mediation any information that could be “significantly harmful” if used against Oswald.
• D.  B & C.

Question 5

Yesterday, I blogged about lawyers convicted of crimes. Today, speaking of lawyers convicted of crimes, conspiracy theories and JFK . . .

. . . Jim Garrison gained fame as the District Attorney for New Orleans.  In 1962, he accused several judges of racketeering and conspiring against him.  The judges charged him with criminal defamation. He was convicted. However, on appeal, the United States Supreme Court overturned the conviction, concluding that the statute Garrison was charged with violating was unconstitutional.

Years later, Garrison began his own investigation into the JFK assassination.  The investigation culminated with the arrest and trial of Clay Shaw for his alleged participation in a conspiracy to assassinate President Kennedy.  After a trial that took over a month, a jury needed less than an hour to acquit Shaw.

Garrison and the trial were featured in the Oliver Stone movie JFK.  Kevin Costner starred as Garrison. Garrison himself appeared in the movie, playing a famous judge.  The judge was involved in both the criminal defamation case against Garrison and an investigation of the JFK assassination.

Name the judge.

Chief Justice Earl Warren.  He was Chief Justice when the Court issued Garrison v. Louisiana and, later, chaired the Warren Commission.

Monday Morning Answers #182

May your Monday not have begun in an airport!  In the spirit of Question 5, all I can do now is shake it off, shake it off.

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

Honor Roll

• Carolyn Anderson, General Counsel, Green Mountain Power; Vice-Chair, Professional Responsibility Board
• Evan Barquist, Montroll Backus & Oettinger
• Honorable John M. Conroy, United States Magistrate Judge, District of Vermont
• Erin Gilmore, Ryan Smith & Carbine
• Laura Gorsky, Esq.
• Robert Grundstein, Esq.
• Glenn Jarrett, Jarrett & Luitjens
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
• John Leddy, McNeil Leddy & Sheahan
• Pam Loginsky, Washington Association of Prosecuting Attorneys
• Jeffrey Messina, Bergeron Paradis Fitzpatrick
• Hal Miller, First American
• Herb Ogden, Esq.
• Nancy Hunter Rogers, Chamberlin School 
• Jim Runcie, Ouimette & Runcie
• Kristen Shamis, Monaghan, Safar, Ducham
• Jonathan Teller-Elsberg, Vermont Law School, JD Candidate

Answers

Question 1

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

• A.   False.  The lawyer controls the means.
• B.   False.   The lawyer shall 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. 1.4(a).

A and B are not correct.  Per Rule 1.2(a), the client controls the objectives and the lawyer “as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued.”  This does not give the lawyer control over the means.  For instance, a client might not want to pay for something the lawyer suggests be done.  Nor does it give the client the absolute right to direct the lawyer to do certain things . . .  for instance, violate the rules.

Question 2

In representing a client, a lawyer _______ not use means that have no substantial purpose other than to embarrass, delay, or burden a third person.

Which is most accurate?

• A.   This is a rule.  And the blank is “shall.”   V.R.Pr.C. 4.4(a).
• B.   This is not a rule. It’s an aspirational comment to one of the rules. And the blank is “should.”

Question 3

A lawyer is holding funds to which both a client and third person claim interests. Their interests are in dispute.  By rule, the lawyer must:

• A.  disburse the funds as directed by the client
• B.   hold the funds until the dispute is resolved.  V.R.Pr.C. 1.15(e)
• C.   withdraw from representing the client
• D.   A or C

Question 4

If an attorney calls me with an inquiry and my response includes use of the word “imputed,” what did the attorney most likely call to discuss?

•  A.  Reviewing an adverse party’s social media posts
•  B.  Trust account management
•  C.  A potential conflict of interest.   V.R.Pr.C. 1.10
• D.  Advising a client to change the privacy settings on her social media platforms

Question 5

 Earlier this year, I blogged about Andrew Manitsky.  Not only is Andrew in a band, he’s my go-to guy when I have questions related to intellectual property and trademarks.

The 2019 American Music Awards are scheduled for November 24.  The artist who will be honored as the AMA Performer of the Decade planned to perform the songs that helped the artist earn the honor.  Songs that the artist wrote, sang, and made famous.

However, this week, the artist took to social media to allege that the label that owns the rights to the artist’s catalogue is refusing to let the artist perform the artists own songs during the ceremony and, further, has also banned the artist from using the music in an upcoming Netflix documentary about the artist’s career.  The label responded by accusing the artist of disseminating “false information.”

Regular readers will certainly know whose side I’m on!

Name the artist.

Taylor Swift in her on-going battle with Scooter Braun.  The New York Times has the latest.