Monday Morning Answers

Happy Monday!

A goal this week: W.I.N. you 3 feet of influence.

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

Honor Roll

  • Karen Allen, Esq.; Karen Allen Law
  • Matthew AndersonPratt Vreeland Kennelly & White
  • Linda Baccki, Law Office Study Program, Law Office of Cristina Mansfield
  • Penny Benelli, Dakin & Benelli
  • Andrew DelaneyMartin & Associates
  • Bob Grundstein, Esq.
  • Tammy Heffernan, Esq.
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy, Queen Mum, JB Kennedy Associates
  • Kevin LumpkinSheehey Furlong & Behm
  • Lon McClintockMcClintock Law Offices
  • Jack McCullough, Vermont Legal Aid, Project Director – Mental Health Law Project
  • Hal Miller, First American
  • Nancy Hunter Rogers, Chamberlin Elementary School
  • Kane Smart, ANR, Office of General Counsel, Enforcement & Litigation Section
  • Robyn SweetCORE Registered Paralegal, Cleary Shahi  & Aicher
  • Thomas Wilkinson, Jr.; Cozen O’Connor

Answers

Question 1

Fill in the blank.

Lawyer wonders whether a client’s agreement to waive a conflict complies with the rules.  Researching it, Lawyer learns that ___________________ “denotes a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostating, photography, audio or video-recording, and e-mail.”

  • A.   Informed consent
  • B.   Writing or Written; Rule 1.0(n)
  • C.   Waiver
  • D.  Acceptance

Question 2

The word “remonstrate” appears in comments to ONE rule.  Which rule?

  • A.   Diligence
  • B.   Competence
  • C.   Advertising
  • D.  Candor Toward The Tribunal; Rule 3.3, Comment [10]

Question 3

True or False:

If Attorney sues Client for a fee, Attorney cannot represent herself at trial if her testimony will be reasonably necessary to establishing the nature and value of the legal services that she rendered to Client.

False.  Rule 3.7(a)(2)

Question 4

Attorney called me with an inquiry.  I listened, then replied “over 20 years ago, the rule was changed to make it clear that it not only applies to ‘parties,’ but to any person who is represented in the matter.”

Which rule?

Rule 4.2 Communication with a Person Represented by Counsel.  See, Comment [2]

Question 5

I am an actress.

On TV, my name is Rachel and I am a summer associate at a law firm.  For many years, I worked as a paralegal at the firm.  I wanted to go to Harvard Law, but never scored high enough on the LSAT.  Thanks to help & encouragement from one of the firm’s lawyers, I kept trying and, eventually, scored high enough to get into Columbia Law, which I’m currently attending.

The lawyer who helped me?  His name is Mike.  Some would say he’s no prince. When the firm hired him as an associate, he neglected to disclose that he had never gone to law school and wasn’t even really a lawyer.  But, what a guy! We fell in love and, now, on the show, we’re engaged.

In real life, I also just got engaged.  And not to some lawyer with a sketchy background.

Who am I?

Meghan Markle.  The show is Suits.  If you haven’t heard of her, in real life, she and Prince Harry recently engaged.  

Markle

 

Monday Morning Answers – Thanksgiving

Welcome to Monday! I hope everyone had a peaceful and relaxing holiday weekend.

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

Honor Roll

Answers

Question 1

Neal Page is a character in a movie that takes place over Thanksgiving.  Indeed, the movie is about Page’s attempt to get home for Thanksgiving.  Del Griffith is another character from the same movie.  Griffith is a shower curtain salesman.  They met in New York City and, eventually, arrived in Chicago via milk truck.

Here’s my imaginary scenario:

In connection with all civil & criminal claims that resulted from their travel adventures, Attorney represents Page and Lawyer represents Griffith.  Talk about complex litigation: depending on the matter, Page & Griffith find themselves as adversaries, co-plaintiffs, co-defendants, and co-victims.  We’re talking arson, credit card fraud, wrong-way driving, a hotel burglary, and an alleged assault on a taxi driver.

Both Attorney & Lawyer are competent, so they understand the value of visual evidence.  Here’s a picture that each used in one of the many trials that dealt with the fallout from their clients’ misadventures – your task, name the movie.

PTA MAP.gif

PLANES, TRAINS & AUTOMOBILES

Planes Trains & Automobiles

Question 2

Lawyer represents Client.  The issue: a dispute related to Opposing Party’s contractual right to slap Client, including whether a slap that took place on Thanksgiving should or should not count towards Opposing Party’s number of contractually allotted slaps.  The most critical witness – Lily, in her role as Slap Bet Commissioner.

Name the TV show.

How I Met Your Mother

Slapsgiving

Question 3

As friends, Monica and Rachel had some interesting Thanksgiving adventures.

One Thanksgiving, Monica invited Will Colbert to dinner.  I always wondered if Rachel ever talked to a competent lawyer about suing Monica for emotional distress. I mean, when they were kids, Will had founded the “I Hate Rachel” club!

Name the actor who played Will in the Thanksgiving episode.

Brad Pitt

Pitt Thanksgiving

Question 4

One Thanksgiving, Arlo and his friend Rick agreed to take some trash to the dump as a favor to some friends who had converted a church into a restaurant.  The dump was closed for the holiday, so they dumped the trash off a cliff.  The next day, they were arrested for littering.  Attorney was assigned to represent them.

Presumably, competent representation will require Attorney to interview the restaurant owner.

What’s her first name?

ALICE, from Alice’s Restaurant by Arlo Guthrie

Question 5

In a speech about Tater and Tot, a famous (and real) lawyer said:

“And it is my great privilege — well, it’s my privilege — actually, let’s just say it’s my job — to grant them clemency this afternoon. As I do, I want to take a moment to recognize the brave turkeys who weren’t so lucky, who didn’t get to ride the gravy train to freedom — who met their fate with courage and sacrifice — and proved that they weren’t chicken.”

Name the speaker.

President Barack Obama

Obama Turkey.jpg

Malcolm & Monday’s Answers

Good morning!

Friday’s questions are HERE.  I can confirm that Dave Carpenter finished the Philadelphia Half Marathon – and ran it while wearing his firefighting gear.  Great job Dave!

Before I get to the answers, I’d be remiss not to mention the passing of Malcolm Young. I often include musical references in my blog posts, in particular in the #fiveforfriday legal ethics quizzes.

It’d be a violation of Rule 4.1 for me to tell you that I am a huge fan of AC/DC. However, it’s not a violation to state that I’m a huge fan of the Back in Black album.  Personally, I think the B-side is the best B-side of any rock album.  Also, the album played an important role in my music fandom.

Last night, I confirmed with the First Brother that Back in Black was the first album that either of us bought on our own.  Before snagging it at a flea market at our elementary school, we’d been confined to our parents’ albums (and 8-tracks).  I don’t think either of us will ever forget (or regret) learning every word to each of The Mamas & The Papas greatest hits.  Nevertheless, Back in Black marked the beginning of our passage to musical adulthood.

Malcolm – if there’s a bar wherever you are, have a drink on me.

acdc-back-in-black

Oh yeah, don’t forget to send me your votes for the top 3 novels that focus on the law, a lawyer, or lawyers!

Onto the answers!

Honor Roll

Answers

Question 1

Attorney called me with an inquiry. I listened, then said “your only duty under the Rules of Professional Conduct is to notify the sender that you received it.”

Most likely, then, Attorney called me to discuss the receipt of:

  • A.   A wire transfer.
  • B.   Information that Attorney knows was inadvertently sent or produced.  See, Rule. 4.4(b)
  • C.   A subpoena to testify about a former client.
  • D.  A request to deliver a former client’s file to a new attorney.

Question 2

By rule, two words have to be on a certain type of communication from lawyers.  What are the 2 words?

  • A.  “Advertising Material.”  See, Rule 7.3(c).
  • B.  “Of Counsel.”
  • C.   “Confidential Information.”
  • D.   “Privileged Information.”

Question 3

True or false: the rules prohibit a lawyer from serving as a director, officer or member of a legal services organization (other than the lawyer’s firm) that serves persons having interests adverse to a client of the lawyer.

False.  Rule 6.3.

Question 4

Lawyer represents Client.  Opposing Party is not represented by counsel.

Lawyer and Opposing Party negotiate a resolution that must be reduced to writing.  Lawyer prepares the document and presents it to Opposing Party for signature.  Opposing Party asks “what do you think it means if I sign this?”

Which is most accurate?

  • A.   Lawyer may not respond other than to say “I can’t give you any advice.”
  • B.   Lawyer must advise Opposing Party to contact an attorney for advice.
  • C.   Lawyer may not go through with the resolution until Opposing Party has been given a reasonable period of time to contact an attorney for advice.
  • D.  Lawyer may explain her own view of the meaning of the document, as well as her view of its underlying legal obligations.

Maybe this was poorly phrased.  But, “D’ is correct under the rule.  It’s Rule 4.3. The key langauge is in the final sentence of Comment [2]: “So long as the lawyer has explained that the lawyer represents and adverse party and is not representing the person, the lawyer may inform the person of the terms on which enter into an agreement or settle a matter, prepare documents that require the person’s signature and explain the lawyer’s own view of the meaning of the document or the lawyer’s view of the underlying legal obligations.” (emphasis added).

B is not correct.  The rule does not mandate Lawyer to advise Opposing Party to contact an attorney for legal advice. Rather, IF Lawyer gives any advice, the only advice she may give is to seek legal advice.

Question 5

Who am I?

In 2011 and 2014, I won the Emmy for Outstanding Actress in a Drama.  I won for a role in which I played a lawyer who, among other things, graduated at the top of her law school class despite a penchant for falling asleep in class.  In the very first episode, viewers learned the my husband, a state prosecutor, had been jailed for his part in a sex & corruption scandal.

But what would this question be without a connection to 1995?

Back then, I didn’t play a lawyer.  Rather, I played a nurse.  But even back then, I did it well.  In 1995, I won the Emmy for Outstanding Supporting Actress in a Drama.

Interestingly, in TV world, I didn’t have to move.  As both a nurse & lawyer, I worked in the same city.

Again, who am I?

Julianna Margulies.   In 2011 & 2014, I won for my role as Alicia Florrick on The Good Wife.  In 1995, I won for my role as Carol Hathaway on ER.

 

 

 

Monday Morning Answers – My Cousin Vinny

You’ve spoken.  My Cousin Vinny is not only your favorite movie, it’s the most popular topic upon which I’ve ever blogged.

And if there’s one thing my readers know, it’s magic grits.

Friday’s questions are here.  Spoiler alert: the answers appear below today’s Honor Roll. However, before I get to the Honor Roll & answers, I’m trying something new that I hope turns into its own column.

For those of you who follow me on Twitter, you know that last night I posted this link to all my posts on the topic of Lawyers Helping Lawyers.  I posted at 5:30 PM in reaction to my realization that “whoa! it’s pitch dark and it’s only 5:30.”

Winter is long.  Darkness can be tough.  And, as the numbers show, we’re a profession that struggles to cope with stress, anxiety, substance abuse and mental health issues.  We must promote wellness and work-life balance, and we must encourage lawyers to make time for what matters.  In other words, let’s focus on ensuring that light shines in our personal & professional lives.

One way to let the light in is to do things that have nothing to do with the law. For example, yesterday, I ran a race with my mom.  She ran the 5K, I did the half marathon. One of us won her age division, I did not.  Here’s us post-race, pre-brunch.

IMG_2933

As we enter the months where the days arehort, it’s as important as ever to keep light in our lives.  To encourage that, send me your pictures of you doing something non-lawyerly.  It doesn’t have to be running a race.  It could skiing, playing with your kids or grandkids, reading, posing outside a show you’re about to attend.  If this catches on, each week, I’ll post the pictures, highlighting lawyers who, every now & then, go lawyerly-lite to keep the light on.

Honor Roll

Answers

Question 1

The rules include a special rule on conflicts for a certain type of lawyers.  What type?

Former & Current Government Officers & Employees.  Rule 1.11

Question 2

Pick the exact word or phrase that most accurately fills in the blank.

For the purposes of the confidentiality provisions of Rules 1.6 and 1.9(c), information that is a matter of public record is not necessarily __________:

  • A.   “Waived”
  • B.   “Privileged”
  • C.    “Confidential”
  • D.    “Generally known.”

Demonstrating my lack of competence, the original version of the quiz had two correct answers:  A – disclosable, and D – generally known.  Once I caught it, I edited the blog, but not before some people had answered and, anyway, it doesn’t edit the email that goes to people who have signed-up to follow the blog.

In the revised version, the answer is “generally known.”  See generally, Rule 1.9(c)(1).  I will blog on this issue later this week.

Question 3

Attorney called with an inquiry.  I listened, then responded “the rule doesn’t say ‘solely to obtain an advantage.’ It says ‘to obtain an advantage.’  We dropped ‘solely‘ back in 1999.”

What did Attorney call to discuss?

  • A.  Contacting an opposing party’s expert witness
  • B.  Contacting a prospective juror
  • C.  Threatening criminal charges in a civil matter.  See, Rule 4.5
  • D.  Interviewing an employee of a represented organization, without the permission of the organization’s lawyer

Question 4

Lawyer called me with an inquiry. I listened, then responded “Well, given the traditional limitation on permitting a non-lawyer to direct a lawyer’s judgment, if any the activities  will include the practice of law, you can’t do it.”

What did Lawyer call to discuss?

  • A.  Forming a partnership with a non-lawyer. See, Rule 5.4(b)
  • B.  Someone other than a client paying for Lawyer to represent that client
  • C.  Sharing a referral fee with an attorney in a different firm
  • D.  Implementing a cloud-based practice management system

Question 5

In the trial in My Cousin Vinny, one of the key moments is Vinny’s cross-examination of an eye-witness.  The witness testified that Vinny’s clients must have been in the Sac-O-Suds (the convenience store where the murder took place) for 5 minutes. On cross, Vinny asked:

“Well, I guess the laws of physics cease to exist on top of your stove. Were these ___________________? Did you buy them from the same guy who sold Jack his beanstalk beans?”

Fill in the blank. Hint: it’s 2 words

Magic Grits.   The scene is here and is worth re-watching.  It’s a fantastically competent cross-examination of an eye-witness. And it’s funny.  #lawyerlight 

Vinny

 

Monday Morning Answers: Timberlake & Pro Bono Bring Sexy Back!

Welcome to Monday!

You might be saying to your self – “self, why is he using an exclamation point?? It’s dark, windy, rainy, and the final week of Daylight Savings Time. WHAT IS HIS PROBLEM??”

Here’s why I used the exclamation point:

I found a backup singer! See below.

Actually, that wasn’t the only (or real) reason for the exclamation point.  This was:

The largest Honor Roll ever!  It’s official: Justin Timberlake and pro bono are bringing sexy back!

Sexy Back

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

Honor Roll

ANSWERS

Question 1

How much pro bono work do the rules encourage Vermont attorneys to provide per year?

  • A.    A reasonable amount
  • B.    50 hours; Rule 6.1
  • C.    60 hours
  • D.    A meaningful amount

Question 2

True or false: the rules exempt government & non-profit attorneys from the pro bono expectation.

False.  Rule 6.1 applies to every lawyer.  Comment[5], however, recognizes that government lawyers may not be able to satisfy the requirements of Rule 6.1(a) and, therefore, should be allowed to satisfy the pro bono requirement via provision of services set out in Rule 6.1(b).  Specifically, the Comment states

  • “Constitutional, statutory, or regulatory restrictions may prohibit or impede government or public sector lawyers and judges from performing the pro bono services outlined in paragraphs (a)(1) and (2).  According, where those restrictions apply, government and public sector lawyers and judges may fulfill their pro bono responsibility by performing services outlined in paragraph (b).”

Question 3

Client retains Lawyer in a divorce.  Client agrees to pay Lawyer an hourly fee.  The fee agreement is reduced to a writing that is signed by Client.

The matter ends with a final order.  By then, Client has paid less than 10% of the total fee and owes Lawyer for approximately 60 hours of work.  Lawyer writes off the bill.

May Lawyer claim the 60 hours as pro bono?

  • A.    Yes, because Lawyer did not get paid.
  • B.    Yes, as long as Lawyer does not continue to try to collect the bill.
  • C.    Yes, but cannot claim the hours if Client decides voluntarily to pay.
  • D.    No.

Rule 6.1(a) is clear:  a “lawyer should provide substantial majority of the 50 hours of legal services without fee or expectation of fee . . ..” Comment [4] drives home the point:  “Because services must be provided without fee or expectation of fee, the intent of the lawyer to render free legal services is essential for the work performed to fall within the meaning of paragraphs (a)(1) and (2).  Accordingly, services rendered cannot be considered pro bono if an anticipated fee is uncollected . . . .” 

Question 4

Which section of the rules is relaxed for lawyers who do pro bono work at short-term legal services programs sponsored by non-profits or government agencies?

  • A.   The trust accounting rules
  • B.   Rule 1.1 and the duty of competence
  • C.   Rule 1.6 and the duty of confidentiality
  • D.   The conflicts rules. Rule 6.5

Question 5

At various live quizzes, I’ve used questions related to the ethics of P2P filing sharing and the legal battle between Napster & Metallica.

Your task: name the movie in which Justin Timberlake played Sean Parker, the co-founder of Napster.

There’s a hint in the tags.  And, here’s a bit of the dialogue:

Sean Parker: Well, I founded an internet company that let folks download and share music for free.
Amy: Kind of like Napster?
Sean Parker: Exactly like Napster.
Amy: What do you mean?
Sean Parker: I founded Napster.

The Social Network

 Social Network

 

Monday Morning Answers

Friday’s Nirvana v. Pearl Jam column is here.  It drew some great comments from readers. I’ve pasted them in below the Honor Roll and the answers.  Special thanks to the commenter who clued me in to a fantastic (and topical) t-shirt.

Eddie Vedder T

HONOR ROLL

ANSWERS

Question 1

Jeremy approaches Lawyer for representation in a matter in which Lawyer has no real experience.  True or false:  the rule that imposes a duty of competence prohibits Lawyer from representing Jeremy.

FALSE.  V.R.Pr.C. 1.1, Comment [4] (“A lawyer may accept representation when the requisite level of competence may be achieved by reasonable preparation.”)

Question 2

Attorney represents Dissident.  The State has charged Dissident with assaulting an Elderly Woman Behind A Counter In Small Town.  Attorney and Dissident remain Oceans apart on how to handle the defense, with Dissident upset that Attorney repeatedly says “you’re lucky she’s still Alive.”  For purposes of the Rules of Professional Conduct, which is different from the others?

  • A.   The plea that Dissident will enter.
  • B.   Whether to cross-examine Elderly Woman (if she testifies)
  • C.   Whether Dissident will waive a jury trial.
  • D.   Whether Dissident will testify.

Per Rule 1.2(a), choices A, C, and D belong to Dissident. Choice B is trial strategy that, generally, belongs to Attorney.

Question 3

Daughter retains Lawyer.  Daughter agrees to pay an hourly fee for work performed.  Which is most accurate?

  • A.  The fee agreement must be reduced to writing.
  • B.  The fee agreement must be reduced to writing within a reasonable time.
  • C.  The fee agreement must be reduced to a writing that is signed by the client.
  • D.  The rules do not require the fee agreement to be reduced to writing.

Per Rule 1.5(b), the basis and rate of a fee should be communicated to the client, preferably in writing, before or a within a reasonable time of the commencement of the representationKey to this question was that the fee was not contingent.  Contingent fees MUST be reduced to a writing signed by the client.  See, Rule 1.5(c).  Finally, while the rules do not require the fee to be reduced to writing, I don’t know why a lawyer wouldn’t do so.

Question 4

Attorney works at Big Firm.  Partners & Associates are departing like Rats fleeing a sinking ship.  So, Attorney decides to leave life at Big Firm in the RearviewMirror and opens a solo shop. There is a rule that imposes a duty of diligence.  A comment to the rule suggests that, as a solo, Attorney might have a duty:

  • A.  To prepare a succession plan.
  • B.  To remain abreast of developments in technology.
  • C.  To utilize a cloud-based practice management system.
  • D.  To retain or associate with a non-lawyer assistant trained in bookkeeping & trust accounting.

Rule 1.3, Comment [5].  

Question 5

In 1994, Pearl Jam filed a complaint with the Department of Justice.  In a cover story, Time magazine referred to the complaint as “Rock’n Roll’s Legal Battle of the Century.” The battle eventually led to band members Stone Gossard and Jeff Ament testifying before Congress.

What was the subject of Pearl Jam’s complaint?

  • A.  An alleged monopoly resulting from Ticketmaster’s purchase of Ticketron
  • B.  An alleged monopoly resulting from Clear Channel buying up local radio stations
  • C.  Royalties & Columbia House’s 8 for the Price of 1 deal on CDs
  • D.  The method by which Billboard counted album sales for purposes of the Billboard Top 100.

Rolling Stone has the result here.

Some Reader Comments on Nirvana v. Pearl Jam

  • “Can I vote for Alice in Chains?  No?? Then PEARL JAM.  Even though every live show has Eddie’s annoyingly self-righteous and endless blather between songs.  I saw an elderly woman at Shaw’s a few weeks ago, wearing a t-shirt with his picture that said, ‘It doesn’t get eddie vedder than this!’ In the early 90s, I loved Nirvana, but I never play them anymore.  But I still listen to Soundgarden, Alice in Chains and  Pearl Jam all the time.  And I just played Mother Love Bone last week!  (I just HAD to hear Star Dog Champion…) It’s a Beatles/Stones thing. Nirvana had that pop-tinged Beatles influence that you get sick of.  Soundgarden and Pearl Jam do guitar-oriented blues rock like the Stones that never gets old!
  • “I like Pearl Jam better as well, although its a tough call. Nevermind is a fantastic album.
  • “Both Pearl Jam and Nirvana are epic bands, but at the time I was definitely all about Pearl Jam. Ten resonated so much for me as a fifteen year old boy. Only in hindsight did I come to appreciate Nirvana. I think MTV’s Unplugged really did it for me well after Cobain was dead. From there, I went back and embraced Nevermind, but I actually prefer In Utero. The fact that Eddie’s singing was a bit easier to understand than Kurt’s probably had a lot to do with my early predilection.I finally got to see Pearl Jam last year (at a Quebec City show). I have attended many Rock and Roll concerts featuring the legends of our time. More than 25 years into their run, I defy any band to put on a show as compelling and wide-ranging as Pearl Jam’s (30+ songs that could have fit into roughly 4 subgenres of rock and packed into 3hrs and 15 minutes).”
  • “Ah, you sucked me in with Pearl Jam and Nirvana. The teenage version of me that lived through the release of those albums would have said Pearl Jam, hands-down. The 40-year-old version of me looking back says Nirvana all day long. Pearl Jam was much more derivative of prior bands and also did not develop as a band over the course of their career – they set it on autopilot and kept cranking out albums that all sounded the same. Nirvana was something that really altered the trajectory of popular rock music. I hate to say it, but Cobain’s death is part of that. Interestingly, I always found that Smashing Pumpkins vs. Nirvana was another binary choice of the era. Maybe even more than Pearl Jam, as Courtney Love had dated SP frontman Billy Corgan before Cobain, which added fuel to the fire. Just like with Pearl Jam, the teenaged version of me took Smashing Pumpkins over Nirvana, but the present-day version of me is almost embarrassed to admit that.”

 

Monday Morning Answers: #90

Friday’s questions are here.  Spoiler alert – today’s answers immediately follow the honor roll.

Honor Roll

  • A1A – Beachfront Avenue!
    • Kane Smart, Office of General Counsel, Agency of Natural Resources
  • Ed AdrianMonaghan Safar Ducham
  • Karen AllenKaren Allen Law
  • Matt AndersonPratt Vreeland Kennelly Martin & White
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor of Law, John Marshall Law School
  • Robert Grundstein, Esq.
  • Glenn JarrettJarrett & Luitjens
  • Jim Johnson, Chittenden South Supervisory Union
  • Kevin LumpkinSheehey Furlong & Behm
  • Hal Miller, First American
  • Herb Ogden, Esq.
  • Daron Raleigh, Deputy State’s Attorney, Windsor County
  • Nancy Hunter Rogers, Chamberlin School, South Burlington
  • Jack Welch, Esq.

Answers

Question 1

If you attend a CLE and I discuss “puffery,” what ethics issue am I most likely addressing?

  • A.   Whether a  lawyer violates federal law by using marijuana
  • B.   The extent to which the rules on candor & honesty apply during negotiations.
  • C.   Dishonest trust accounting practices
  • D.   Viewing an adverse party’s social media posts

Here’s my post on whether “puffery” constitutes dishonesty or a false statement of material fact to a third person.

Question 2

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.   Vermont’s rule on imputed conflicts is V.R.Pr.C. 1.10.
  • D.  Technology & The Duty of Competence

Question 3

I spoke at CLE yesterday.  One point I emphasized was:

“If it’s yours, get it out.”

When I made the statement, what general topic was I discussing?

Trust accounting.  Leaving your own money in trust is “commingling.”  If it’s yours, get it out of trust.

Question 4

By rule, “a lawyer employed or retained by an organization represents the organization acting through its duty authorized constituents.”  Do the rules allow the lawyer who represents an organization to represent its individual directors, officers, employees, members, or other constituents?

  • A.   No
  • B.   Yes
  • C.   Yes, subject to Rule 1.7 (the rule on conflicts of interest).  See, V.R.Pr.C. 1.13(g).
  • D.   The rules are silent on this issue

Question 5

And speaking of lawyers who represent organizations . . .

. . . in 2008, Tilda Swinton won the Academy Award for Best Supporting Actress for her portrayal of corporate lawyer Karen Crowder.  Crowder was in-house counsel for U-North, a giant manufacturer of agro-chemical products.  U-North was the defendant in a class action lawsuit involving allegations that U-North manufactured, marketed, and distributed a carcinogenic weed killer.

Crowder retained an outside law firm to handle the defense.  The firm’s leading litigator, Arthur Edens (Tom Wilkinson), discovered an internal memo that Crowder and U-North had intentionally withheld from the plaintiffs.  The move proved that, in fact, U-North continued to sell its product despite knowing that it would kill people in addition to killing weeds.

On the horns of the ethical dilemma of whether to blow the whistle on Crowder and U-North, Edens cracked.  During a deposition, he stripped naked and ran outside into a snowstorm.  Fearful that Edens would disclose the memo, Crowder did what any self-respecting in-house counsel would do – brought the matter to the attention of U-North’s CEO, then had Edens killed.

Shocked, Edens’ firm brought in George Clooney to figure out what happened.  It didn’t take Clooney long to determine that the firm’s client and its general counsel had been up to no good.  And it didn’t take Crowder & U-North long to attempt to send Clooney to the same fate as his law partner, Arthur Edens.

Your task: identify this movie, a film replete with legal ethics issues, including the duty to disclose a client’s fraud and crimes.  Oh yeah, and the duty not to have outside counsel murdered.

MICHAEL CLAYTON

Michael_clayton

 

 

 

Monday Morning Answers – T. Swift & T. Petty

Now I know what drives traffic – Taylor Swift!

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

Honor Roll

Answers

Question 1 – American Girl

“Well she was an American girl
Raised on promises . . .”

Later, the American girl became a lawyer and is admitted to practice in Vermont.  By rule, she has essentially promised:

  • A.  Not to disclose information related to the representation of her clients.
  • B.  Not to disclose information related to the representation of her clients, unless the information is a matter of public record.
  • C.  Not to disclose information related to the representation of her clients, unless the information falls outside the attorney-client privilege.
  • D.  Not to disclose her clients confidences and secrets.

For more on this, please see this blog post in which I discuss Rule 1.6 and its interplay with matters of privilege & matters in the public record.

Question 2 – Refugee

Lawyer represents Client in a civil matter.  Trial is scheduled for next week.  Most of Lawyer’s strategy sessions with Client have focused on Witness.  Lawyer plans to have Witness testify and offer evidence in support of Client’s claim.

Yesterday, Client said to Lawyer:

  • “We got somethin’, we both know it, we don’t talk too much about it
    Ain’t no real big secret, all the same, somehow we get around it
    Oh listen, it don’t really matter to me, baby
    You believe what you wanna believe.”

Lawyer was somewhat confused, but, having thought about it, thinks that Client might have convinced Witness to offer false evidence.  Which is most accurate?

  • A. If Lawyer reasonably believes that Witness will offer false evidence, Lawyer may refuse to offer Witness’s testimony. See, V.R.Pr.C. 3.3(a)(3).  
  • B.  Lawyer must offer Witness’s testimony.
  • C.  Lawyer must not offer Witness’s testimony.
  • D.  Lawyer must withdraw.

The key here is that Lawyer suspected, but did not know, that Client might have convinced Witness to offer false evidence.  A prudent course here would be to remonstrate with client & to make clear to Client (1) that “C” would be correct if Lawyer “knows” Witness will offer false testimony; and, (2) that if Lawyer discovers after-the-fact that Witness provided false evidence, Lawyer has a duty to take reasonable remedial measures, up to and including disclosure to the court.

Question 3 – Don’t Do Me Like ThatJammin’ Me

This is a different case than in Question 2.

Attorney informs Client that Attorney intends to file a motion to withdraw.  Client responds:

  • “Don’t do me like that
    Don’t do me like that
    Someday I might need you baby
    Don’t do me like that!”

Attorney replies “the ethics rules require me to withdraw.” Client retorts:

  • “You’re jammin’ me, you’re jammin’ me
    Quit jammin’ me
    Baby you can keep me painted in a corner
    You can walk away but it’s not over.”

Assuming that Attorney is correct and that withdrawal is mandatory, which of the following will Attorney be most likely to cite in the motion?

  • A.  Client has failed substantially to comply with the terms of the fee agreement.
  • B.  Attorney has discovered a non-waivable conflict of interest with a former client.
  • C.  The representation has been rendered unreasonably difficult by Client.
  • D.  Client insists on taking a course of action that Attorney considers repugnant.

Rule 1.16(a)(1) mandates withdrawal when continued representation will result in a violation of the rules of professional conduct.  Continuing despite a non-waivable conflict would cause Attorney to violate the rules.   Thus, B is correct.  Choices A, C, and D are instances in which withdrawal is permitted, but is not mandatory.  

Question 4 – Runnin’ Down A Dream

Continuing the scenario from the previous question, Attorney filed the motion to withdraw.  As it remained pending, stress & anxiety bedeviled Client.  Then, the court granted the motion.  Shortly thereafter, Client contacted the VBA’s Lawyer Referral Service and received a list of potential new lawyers.  Uplifted, Client called Attorney to schedule an appointment to pick up the file. Client said:

  • “I rolled on as the sky grew dark
    I put the pedal down to make some time
    There’s something good waitin’ down this road
    I’m pickin’ up whatever’s mine.”

When Client arrives, Vermont’s rule specifically requires Attorney to:

  • A.   Keep a copy of Client’s file.
  • B.   Surrender Papers & Property to which Client is entitled.
  • C.   A, B, and refund any unearned fee.
  • D.   B and refund any unearned fee.

This is Rule 1.16(d).  After complying with the rule by delivering the file, there is nothing in the rules of professional conduct that requires Attorney to keep a copy of the file.  Most carriers, however, have language in their policies that require lawyers to keep copies of a closed files for X number of years.

Question 5 – Free Fallin’

Continuing the scenario . . . Client followed through on her statement that Attorney could walk away, but it’s not over.  Before runnin’ down her dream elsewhere, Client posted a negative online review about Attorney, sued Attorney for malpractice, and filed a disciplinary complaint against Attorney.

Attorney intends to respond with:

  • “She’s a good girl, loves her mama
    Loves Jesus and America too
    She’s a good girl, crazy ’bout Elvis
    Loves horses and her boyfriend too
  • It’s a long day livin’ in Reseda
    There’s a freeway runnin’ through the yard
    And I’m a bad boy, ’cause I don’t even miss her
    I’m a bad boy for breakin’ her heart”

Assume the information in the response is true, but is not generally known.  Attorney would likely violate the rules by:

  • A.  Posting the information online, in response to the negative review.
  • B.  Incorporating the response into the defense of the malpractice complaint.
  • C.  Incorporating the response into his answer to the disciplinary complaint.
  • D.  None of the above.  No matter the forum, Client put the representation in issue.

Client is a “former client.”   Rule 1.9(c)(2) prohibits disclosure of information relating to the representation of a former client unless the rules otherwise permit disclosure.  Here, Rule 1.6(c)(3) permits B & C.  The rule is often referred to as the “self-defense exception” to the general prohibition against disclosure.  It is well-settled that the “self-defense exception” does not apply to negative online reviews.  For more, see my post Negative Online Review? What NOT to do.

swift and petty