Monday Morning Answers: #72

Wow! Huge honor roll this week.  Great job readers!

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

Honor Roll

  • Matthew Anderson, Pratt Vreeland Kennelly & White
  • Penny Benelli, Dakin & Benelli
  • Beth DeBernardi, ALJ, Dept. of Labor
  • Anne Day, Esq.
  • Andrew Delaney, Martin & Associates
  • Laura Gorsky, Law Office of David Sunshine
  • Robert Grundstein, Esq.
  • Glenn Jarrett, Jarrett & Luitjens
  • Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
  • Patrick Kennedy, First Brother, Dealer.Com
  • Nicole Killoran, Vermont Law School
  • Aileen Lachs, Mickenberg, Dunn, Lachs & Smith
  • Jordana Levine, Marsicovetere & Levine
  • Pam Marsh, Marsh & Wagner
  • Lon McClintock, Esq.
  • Jeffrey Messina, Bergeraon, Paradis & Fitzpatrick
  • Hal Miller, First American, Oceanside Division
  • Herb Ogden, Esq.
  • David Sunshine, Esq.
  • Emily Tredeau, Office of the Defender General

Stats

  • Easiest – Question 1
  • Hardest – Question 2

Answers

Question 1

Attorney called me with an inquiry. I listened. Then, I asked:

  • “Is the new case the same as or substantially related to the old one?”

What general area of legal ethics did Attorney call to discuss?

  • A.   Solicitation
  • B.   File Retention
  • C.   Conflicts of Interest, Rule 1.9(a)
  • D.   Fee Agreements

Question 2

Which does not belong?

  • A.  The client agreed.  
  • B.   The result obtained
  • C.   The lawyer’s experience, reputation, and ability
  • D.   The skill requisite to perform the service properly

Rule 1.5 requires fees to be reasonable.  Rule 1.5(a) lists the factors that go into the analysis of whether a fee is reasonable.  Choices B, C, D are listed. Choice A is not.  It is widely accepted that the fact that a client agreed to a fee does not, standing alone, render the fee reasonable.

Question 3

A law firm deposited its own money into its trust account.  Which is most accurate?

  • A.  Each lawyer in the firm violated the Rules of Professional Conduct
  • B.  The firm’s partners (or equivalent thereof) violated the Rules of Professional Conduct
  • C.  It depends whether the deposit exceeded $1000
  • D.  It depends whether the deposit was in an amount reasonably necessary to pay bank charges to the account.  See, Rule 1.15(b).  The rule allows lawyers to deposit their own funds into trust in an amount reasonably necessary to pay bank charges on the account.  The fact that the question asked about a firm does not change the analysis.

Question 4 (Fill in the blank)

Lawyer called me with an inquiry.   I listened.  Then, I said

“As of now, there’s no duty to ENCRYPT routine electronic client communications. But, it won’t be long until the failure to do so is deemed ‘unreasonable’.”  See, Last Thursday’s Post: Encryption & The Evolving Duty to Safeguard Client Information

Question 5

This week’s question 5 is dedicated to a long-time reader.

John Luther Long was born on New Year’s Day in 1861.   He was admitted to the Philadelphia Bar in 1881.

I have no idea if Attorney Long was a competent or ethical lawyer.  However, it seems that he was a competent writer.

In 1898, Attorney Long published a short story about a journey of U.S. Naval Officer Benjamin Franklin Pinkerton.  The story caught the attention of Giacomo Puccini. In turn, Puccini wrote an opera based on Attorney Long’s story.

Puccini’s opera is one of the most famous operas of the 20th century.

Your mission, should you choose to accept it, is to identify the short story/opera.

Madame Butterfly.   Attorney Long’s wiki entry is here.  Puccini’s is here.

Madame Butterfly

Monday Morning Answers: #71

Monday, Monday . . .

Hard to believe that was their only number one song.  But, Wikipedia never lies.

Friday’s questions are here.  The answers are below today’s Honor Roll. And what an honor roll it is! Great job this week folks.

Honor Roll

Answers

Question 1

There’s a rule that requires lawyers to provide clients with diligent representation.  A comment to the rule suggests that solos and lawyers in small firms should have:

  • A.   Succession plans; Rule 1.3, Comment 5
  • B.   Cybersecurity Insurance
  • C.   A bookkeeper who “optimally, works at least part-time”
  • D.   Cloud Based Practice Management Systems

Question 2

The rules establish duties that lawyers owe to four specific types of clients. Rules 1.7 and 1.8 refer to the “current client.”  Rule 1.13 sets out the duties that apply when an “organization” is the client.

What are the two other types of clients to whom lawyers owe ethical duties?

(hint: the answers are not, for example, “divorce clients” or “real estate clients”, or any specific area of practice)

Question 3

Attorney represents Green.  Green intends to enter into a contract with Orange.  Orange is not represented.

The parties and Attorney meet to sign the contract.  Just before signing, Orange asks Attorney “what do you think this contract means if I sign it?”

Which is most accurate?

  • A.    Attorney must decline to answer & must advise Orange to seek legal advice from another lawyer
  • B.   Attorney must decline to answer & may advise Orange to seek legal advice from another lawyer
  • C.   Attorney must ask Green whether Green consents to Attorney answering the question
  • D.   If Attorney explains that she represents an adverse party & is not representing Orange, she may explain to Orange her own view of the meaning of the contract & its underlying legal obligations.  See, Rule 4.3, Comment 2

Green and Orange was a reference to Friday’s reference to The Troubles.

Question 4

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

  • “Sounds to me like you don’t have a duty to do anything.  You fall under the exception to the rule, because it’s information relating to the representation of your client and is protected from disclosure.  However, a comment to the rule says that you should encourage your client to, especially if it won’t negatively impact client’s case to do so.”

Question: What did I mean when I said “encourage your client to?”  To do what?

To report another attorney’s professional misconduct. Rule 8.3, Comment 2

Question 5

Jeff Kerr dropped out of law school after two years. So, it appears to me that disciplinary authorities in Fictional World don’t have jurisdiction over Kerr.  If they did, I wonder whether they’d prosecute him.

Using the alias “Nick Easter,” Kerr connived his way onto a civil jury and manipulated the jury throughout a trial.  On several occasions, “Easter” and his girlfriend secretly met with each side to the litigation and offered to sway the jury for the right price.

For some reason, the subject of the trial is different in the movie than it was in the book, which was a runaway best-seller.  But, the plot is the same.  In each, Easter and his girlfriend are motivated by a desire to get revenge against Big Industry.

Your mission, should you choose to accept it, has two parts

  • Identify the industry at issue in the book.
  • Identify the industry at issue in the movie.

Hint:  As a former high school basketball coach, I’m compelled to mention that, in the movie, the defense team’s consultant who deals with Easter and his girlfriend is also one of Fictional World’s most famous high school basketball coaches

This is John Grisham’s The Runaway Jury.  In the book, it’s the tobacco industry.  In the movie, the firearms industry.  In the movie, Hickory High’s Coach Norman Dale has apparently transitioned into a new career as a jury consultant.

Nick Easter           Rankin Fitch

The Runaway Jury

Monday Morning Answers: Kentucky Derby Edition

Friday’s questions are HERE.  As usual, when it comes to cashing on the Derby, I’m left Always Dreaming.

But congrats Jeanne Kennedy! My mom had Always Dreaming to win AND to place, which was good enough for a tidy little payoff and, more importantly, honorable mention Honor Roll status.  Given her success and Saturday’s sloppy track, I guess my mother is a mudder.

Spoiler alert – the answers to Friday’s questions appear immediately after the Honor Roll.

HONOR ROLL

Answers

Question 1

Pletcher is a former client of Lawyer’s.  Lawyer took Pletcher’s case on a contingent fee. By rule, what must Lawyer maintain for 6 years following the termination of the representation of Pletcher?

  • A.    A copy of Pletcher’s file
  • B.    A copy of Pletcher’s fee agreement
  • C.    Records of any property or funds held in connection with the representation of Pletcher.  V.R.Pr.C. 1.15(a)(1)
  • D.   Nothing.

Note: the rules do not require lawyers to maintain copies of closed files.  Rather, Rule 1.16(d) requires a lawyer to surrender the file upon the termination of a representation.  If a lawyer chooses to keep a copy (which the lawyer’s liability policy might require) the lawyer is keeping a copy for the lawyer’s own purposes, not because the rules require it.

Question 2

Baffert is a long time client of Attorney. Last night, Baffert met with Attorney for legal advice.  During the meeting, Baffert told Attorney some bad things that he intends to do tomorrow.  As a result, Attorney reasonably believes that Baffert will commit a crime that is certain to result in substantial injury to the financial interests of Lukas.  Attorney has no reason to believe that Lukas or anyone else will suffer bodily injury.

Which is most accurate?

  • A.   Attorney must disclose Baffert’s intent
  • B.   Attorney must not disclose Baffert’s intent
  • C.   If Baffert is using or has used Attorney’s services to further the crime, Attorney must disclose Baffert’s intent.  V.R.Pr.C. 1.6(b)(2)
  • D.  If Baffert is using or has used Attorney’s services to further the crime, Attorney may disclose Baffert’s intent.

The key here is whether Baffert is using or has used Attorney’s services to further the crime.  If so, disclosure is mandatory.

Question 3

It’s Monday afternoon.

Late Saturday evening, Client was arrested and charged with DUI.  Fortunately (I guess) for Client, he had just won $2500 as a result of McCracken’s stunning victory in the 2017 Kentucky Derby. So, on Monday morning, Client retained Lawyer who agreed to handle the DUI for a $2500 flat fee.  Client and Lawyer decided not to confirm the fee agreement in writing.

Now, on Monday afternoon, which is most accurate?

  • A.   Lawyer violated the rules.
  • B.   Lawyer may not deposit the $2500 into her IOLTA account
  • C.    Lawyer must deposit the $2500 into her IOLTA
  • D.   A & B

The rules do not require the fee agreement to be reduced to writing.  However, since it was not reduced to writing, it does not qualify as a type of advanced fee that Lawyer may treat as “earned upon receipt.”  See, V.R.Pr.C. 1.5(e)(2).  We are left, then, with a fee that is paid advanced.  Per Rule 1.15(c), the $2500 must go into trust until earned.

Question 4

Attorney represents Irish War Cry.  Opposing Counsel represents Classic Empire.

Reviewing discovery that has been provided by Opposing Counsel, Attorney finds information that Attorney concludes was inadvertently produced.

Which is most accurate?

  • A.   Attorney must notify Opposing Counsel.  V.R.Pr.C., 4.4(b)
  • B.   Attorney may notify Opposing Counsel
  • C.   Attorney must first consult with Irish War Cry
  • D.   Attorney’s duties under the Rules of Professional Conduct necessarily depend upon whether the information falls under the evidentiary privilege that Classic Empire shares with Opposing Counsel.

Question 5

Mick is a criminal defense attorney.  His ex-wife is a prosecutor who bears a striking resemblance to one of the players in last week’s Question 5: Mona Lisa Vito.

Mick represents Louis Roulet, an ultra-rich playboy who is accused of a brutal crime. At first, Mick is convinced that Roulet is innocent. However, as the case progresses, Mick’s doubts grow.  Eventually, Roulet tells Mick that he (Roulet) previously committed a different crime . . . a murder for which one of Mick’s former clients, Jesus Martinez, is serving life in prison!

Identify the movie in which Mick confronts the many ethical dilemmas associated with his knowledge that a current client committed a crime for which a former client has been convicted.

(Of lesser importance is whether Mick’s driver, another former client, might have grounds to complain that Mick has charged him an unreasonable fee.)

The Lincoln Lawyer.

Lincoln Lawyer.jpg

Monday Morning Answers: #69

Welcome to May!  Before I get to the answers, Friday’s questions are HERE.  Click before you scroll, because the answers follow the honor roll.

Honor Roll

Answers

Question 1

A comment to one of the rules includes the following language.

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

What’s the topic of the rule?

Conflicts.  Rule 1.7, Comment [3].  In other words, ignorance caused by a failure to adopt reasonable procedures to check for conflicts will not excuse a violation of the rule.

Question 2

Solo just opened a new practice.  Solo used to work for the Alliance Firm.

At new practice, Solo represents Vader in matter against Luke.

Luke asks Alliance for representation.   Prior to asking, Luke has never been represented by Alliance.

Which is most accurate?

  • A.    Alliance may not represent Luke.
  • B.    If Vader is a former client of Alliance, Alliance may not represent Luke
  • C.    If Vader is a former client of Alliance, Alliance may not represent Luke absent Vader’s informed consent.
  • D.    If Vader is a former client of Alliance, Alliance may represent Luke unless (1) the matter is the same as or substantially related to a matter in which it represented Vader; and (2) any lawyer working at Alliance has information about Vader that the rules prohibit from being disclosed.  See, Rule 1.10(b).

Not a single reader commented on the Star Wars reference.

Question 3

Vermont’s rules prohibit lawyers from asking a person other than to client to voluntarily refrain from giving information to another party.  The rule does not apply if (a) the person is a relative, employee, or agent of the client; AND (b) the lawyer reasonably believes that the person’s interests will not be adversely affected by choosing to refrain from giving the information.

The rule applies to all types of cases. However, the Reporter’s Notes caution lawyers that conduct permitted by the rule:

  • A.  Is discouraged.
  • B.  Adversely reflects on a lawyers’ fitness to practice law if done regularly
  • C.  Might constitute obstruction of justice in a criminal case. See, Rule 3.4(f), Reporter’s Notes to 2009 Amendments.
  • D.  Likely violates the rule on dealing with the unrepresented person

Question 4

Attorney called me with an inquiry.  I listened, then responded by saying “generally, it’s prohibited if one of your significant motives for doing so is pecuniary gain. Though, if motivated by pecuniary gain, it’s okay if the person is a lawyer or has a close family/personal/professional relationship with you.”

What general topic did Attorney call to discuss?

Solicitation/Direct Contact with Prospective Clients.  Rule 7.3(a).

Question 5

Vincent Gambino meandered back & forth across the line between “ethical” and “not ethical.”  But, talk about tech competence! (positraction is technology!) Plus, in the end, Gambino’s trial skills demonstrated an ability to provide competent & diligent representation.   Question 5 invokes Gambino.

Gambino

The question:  What color am I?

  • I am a color.  Attorney Gambino asked witness Mona Lisa Vito about a similarity between the 1963 Pontiac Tempest and the 1964 Buick Skylark. Specifically, he asked if both GM models were available in me.  Ms. Vito answered “They were!”

 

Mona Lisa Vito

What color am I?

I am Metallic Mint Green.

Metallic Mint Green

Monday Morning Answers: #68

Friday’s questions are HERE. Answers follow the Honor Roll.

Congrats to Allison Wannop & Nicole Killoran.  Their responses suggest familiarity with Goldbach’s Conjecture!

Oh, and on this topic, I’m pleased to announce that my good friend Jeff Davis (@jdavismmus) has been named the Official Mathematician of Ethical Grounds.  Think I won’t be able to figure out 33.3% of  a contingent fee?  With JD on the case, think again!

Finally, congrats to Liz Kruska & Wesley Lawrence for recognizing Galen & Meb in Question 4!

Honor Roll

  • Penny Benelli, Esq., Dakin & Benelli
  • Beth DeBernardi, ALJ, VT Dept. of Labor
  • Laura Gorsky, Law Offices of David Sunshine, Newly Minted Passer of the Bar
  • Keith Kasper, Esq., McCormick, Fitzpatrick, Kasper & Burchard
  • Patrick Kennedy, First Brother, Dealer.Com,
  • Nicole Killoran, Esq., Vermont Law School, J.D. Externship Program
  • Elizabeth Kruska, Esq., Law Offices of Elizabeth Kruska
  • Wesley Lawrence, Esq., Theriault & Joslin
  • Jordana Levine, Esq., Marsicovetere & Levine
  • Jeffrey Messina, Esq., Bergeron, Paradis, Fitzpatrick
  • Hal Miller, Esq., First American, Oceanside Branch
  • Kane Smart, Esq., Agency of Natural Resources
  • Allison Wannop, Esq., Vermont Superior Court

ANSWERS

Questions 1 & 2

There is a rule that prohibits an act, but only if the act is done to gain an advantage in a certain type of case.

Your mission: identify the act & the type of case.

  • 1.  Rule 4.5 prohibits presenting, participating in presenting, or threatening to present criminal charges; 
  • 2.  To gain an advantage in a civil case.

Question 3

There is a rule that requires a lawyer to “take steps to the extent reasonably practicable to protect a client’s interests . . ..”

You’ll find the specific language that I quoted in the rule that applies:

  • A.  upon the termination of a representation.  Rule 1.16(d).
  • B.  when the client suffers from a diminished capacity
  • C.   when the client has submitted false testimony or evidence to a tribunal
  • D.   when the client fails to communicate with the lawyer

Question 4

Galen & Meb are contemplating a lawsuit.  They asked Attorney to represent them both in the matter.  Attorney had inkling that a conflict would arise down the road.

Attorney shared his concerns with both Galen & Meb.  Then, sitting with both, Attorney asked Galen & Meb to agree in advance to waive any conflict that might arise.  Both Galen & Meb agreed to waive any future conflict.

Which is most accurate?

  • A.   Attorney violated the rules – VT doesn’t allow advanced waivers
  • B.   Attorney violated the rule on client confidences
  • C.   Attorney violated the rules by failing to provide Galen & Meb an opportunity to seek independent legal advice.
  • D.   If a conflict arises, the rules might require Attorney to withdraw despite the waiver.  Rule 1.7, Comment 22

Question 5

Several years ago, a PRB case resulted in a debate about Rule 4.1.  In particular, the extent to which it applied to undercover investigations supervised by government attorneys.

Which gives me a hook to this question.

Earlier this week, the New York Attorney General announced that an undercover operation had resulted in the arrest of man named “Newman.”  Newman is alleged to have spent many years defrauding businesses by pretending to be an architect.

In a tweet announcing the arrest of the fake architect, New York’s Attorney General acknowledged the obvious Seinfeld connections.  In fact, the NY AG tweeted that the undercover operation had been given a code name that reflected its Seinfeld ties.

What’s the code name?

“Operation Vandelay Industries.”  The New York Times had the story HERE.  As you’ll see, as funny as the reference is, the NY AG didn’t exactly comply with the duties of competence  & diligence when it comes to Seinfeld references. It’s almost like he has no Seinfeld experience whatsoever.  That’s what makes this so difficult.

Thank you Debbie Emerson, my fake doctor, for the tip!!

Vandelay Industries

Monday Morning Answers: #67

This week’s answers come to you live from Boston, MA.  I’m preparing to run the Boston Marathon.  Unlike most marathons, Boston seeds its start.  Faster runners up front, with runners organized, more or less, in numerical order.

It appears that I’m not one of the favorites:

IMG_2118

Friday’s questions are HERE.  The answers follow the honor roll.

HONOR ROLL

  • Evan Barquist
  • Penny Benelli
  • Beth DeBernardi
  • Laura Gorsky
  • Robert Grundstein
  • Anthony Iarrapino
  • Keith Kasper
  • Patrick Kennedy
  • Nicole Killoran
  • Deborah Kirchwey
  • Elizabeth Kruska
  • Cristina Mansfield
  • Hal Miller
  • Jim Runcie

Answers

Question 1

Which is most accurate?  A contingent fee:

  • A.   Must be fair
  • B.   Must be in a writing
  • C.   Must be in a writing signed by the client; See, Rule 1.5(c) and my blog on the basics of contingent fees.
  • D.  Must not be calculated until after the client’s expenses are deducted

Question 2

Attorney called with an inquiry.  I listened. I replied “It doesn’t matter that your client ‘initiated’ it, the rule still applies.  And the fact that you cc’d your client on the e-mail is not the same as consent.”

What topic did Attorney call to discuss?

Communicating with a represented party.  Specifically, Attorney called to discuss whether by cc’ing her client on an email to opposing counsel she had given opposing counsel permission to contact client directly.  I blogged on the issue HERE.

Question 3

Fill in the blank.

In an advisory ethics opinion okaying the use of a particular type of technology, the Philadelphia Bar Association concluded that:

  • CROWDFUNDING sites can be a beneficial source of funds allowing the public to assist in the assertion of valid legal claims that might otherwise go without recourse. Thus, great care should be taken to make sure that the initial development of such sites not affect the ability of subsequent persons to use such a source.”

My blog on crowdfunding is HERE.

Question 4

North Carolina gained national attention for an amendment to its rules that went into effect last month.  If Vermont were to follow the Tar Heel state’s lead, nearly all lawyers would have a duty that, today, only applies to a subset of the bar.  It’s the rule that, right now, relates to:

  • A.  “Admiralty” lawyers being allowed to advertise their area of specialization
  • B.  Conflicts for defense attorneys who move from a public defender’s office to a state’s attorney’s office
  • C.   Television ads by lawyers who represent large classes of plaintiffs
  • D.  A prosecutor’s duty to disclose evidence that tends to negate the guilt of an accused.  

My blog on the issue is HERE.

Question 5

Earlier this week, three news media organizations were named co-winners of the 2017 Pulitzer Prize for Explanatory Journalism.  The organizations were The Miami Herald, The McClatchy Group DC, and The International Consortium of Investigative Journalists.  

The Pulitzer reflected their efforts on reporting a story that involved, among other things, Vladimir Putin, David Cameron, and offshore shell companies. The story came to light after a whistleblower “leaked” 11.5 million documents that a law firm had stored electronically. Review of the documents resulted in the law firm’s name partners being arrested and jailed on suspicion of money laundering.

By what name is the scandal better known?

THE PANAMA PAPERS

Monday Morning Answers: #66

The questions for the 66th #fiveforfriday are HERE.   The answers & Honor Roll follow today’s bonus Honor Roll.

Today’s bonus edition of Honor Roll recognizes the lawyers who finished Saturday’s RunVermont Half Marathon Unplugged.  It was great to see so many lawyers on the course.  I apologize in advance for missing anyone, but as best as I could tell, the following Vermont lawyers finished the race:

#fiveforfriday Honor Roll

Answers

Question 1

True of false.

For the purposes of the rule that prohibits conduct that is degrading or disruptive to a tribunal, a deposition is not a tribunal.

FALSE.  V.R.Pr.C. 3.5, Comment 5 (“the duty to refrain from degrading or disruptive conduct applies to any proceeding of a tribunal, including a deposition.”) See, Rule 1.0(m).

Question 2

Attorney called me with an inquiry.  I listened.  I responded “well, i understand why you’re concerned, but I’m not sure that Opposing Counsel committed a violation.  The general consensus is that the rule is less stringent during negotiations.”

What rule?  The rule on:

  • A.  Communicating with a Represented Person
  • B.  Conflicts of Interest when Representing Co-Defendants
  • C.  Truthfulness in Statements to Others.  I’ve blogged about “puffery” and the Ethics of Negotiations.
  • D.  Notifying Counsel of an Inadvertent Production

Question 3

Later today I’m doing a CLE for the Vermont Association for Justice.  Let’s see if they’re paying attention this morning.

By rule, in matters where a lawyer charges a contingent fee:

  • A.    The fee must be calculated before expenses are deducted
  • B.    The fee must be calculated after expenses are deducted
  • C.    The rule is silent as to whether the fee is to be calculated before or after           expenses are deducted
  • D.    The fee agreement must specify whether the fee will be calculated before or after expenses are deducted.  V.R.Pr.C. 1.5(c) (Contingent fee shall be in writing & shall state whether expenses will be deducted before or after the contingent fee is calculated.)

Question 4

Fill in the blanks.  The same word goes in each blank. Since we’re all lawyers here, credit only for filling in the correct word, not just any old word 3 times.

GHOSTWRITING.  I’ve blogged on the arguments for & against.

I appeared at a CLE. I made an argument in favor of interpreting the rules so as to permit ghostwriting.   Some people disagreed with me. They responded that ghostwriting should be considered a violation for two reasons:

  1.   It’s misrepresentation by omission; and,
  2.  It gives “unrepresented” litigants an unfair advantage in the form of a liberal interpretation of their pleadings.

I countered with arguments from an ABA formal advisory opinion, as well as with an argument that permitting ghostwriting will increase access to legal services.

Question 5

I’ll start with the question.  Then, after the question, there’s a discussion and a hint.

Milton A. Rudin was a lawyer in Beverly Hills.  “Mickey,” as he was known, represented Famous Client from the mid-50’s thru the late 80’s.

In 1991, author Kitty Kelley released “Nancy Reagan: The Unauthorized Biography.” In it, she suggested that Mrs. Regan had many private luncheons and long afternoons alone with Famous Client at the White House.  Also, in the book, she thanked several “sources,” including Rudin.

Rudin sued for Kelley and her publisher for libel.  He denied that he had disclosed any information relating to his representation of Famous Client.  (there’s the hook to get this into an ethics blog!) Interestingly, years earlier, and on behalf of Famous Client, Rudin had sued Kelley to prevent her releasing a book about none other than Famous Client.

Who was Mickey Rudin’s most Famous Client?

Frank Sinatra.

Sinatra

Discussion & Hint

Whether at one of my CLEs or in response to a #fiveforfriday quiz, nothing generates discussion like the pop culture questions.  Often, people urge me to use pop culture questions that don’t involve tv, movies, music, or fictional attorneys   In other words, pop culture questions that don’t involve pop culture.  I’ve heard “Mike, I don’t ________:”

The blank is often filled in with:

  • go to the movies
  • watch tv
  • watch sports
  • listen to music
  • listen to _____ (insert musical genre)
  • know anything about history
  • know anything about pop culture after the year 2000
  • know anything about pop culture before the year 2000
  • know anything about pop culture

I get it.  I promise, I try to do my best to vary the questions.  Some hint’s for today’s:

  • For those of you who’ve heard me warn about 3 types of clients, each named after a pop star, Famous Client is one of the 3.  And Famous Client is not Blondie or Taylor Swift.
  • For you old-timers, Famous Client was world famous before World War II ended
  • His daughter had a #1 hit in 1968
  • For you millennials, Famous Client was the original Timberlake, right down to the fact that he rose to fame as part of band before embarking on a mega-successful solo career.
  • Jessica Simpson covered his daughter’s #1 hit in the 2005 movie version of The Dukes of Hazzard.
  • If you are reading this quiz, I’d be shocked if you haven’t heard of Famous Client

Opening Day & Monday Morning Answers

Yes, it’s Monday.

But, the sun is shining, most of the snow has melted, and it’s Opening Day at Fenway.  I’m curious: are any of you Sox fans mildly surprised that Porcello gets the start over Sale?

Two more housekeeping matters before I get to the Honor Roll & Answers.  First, in case you missed it Saturday morning, here’s my post on the new rule in North Carolina that extends the duty to disclose exculpatory information to all lawyers.  Second, if you want to read Friday’s questions before you see the answers, they’re here.

Oh – a third thing.  In the bracket-style pool that I entered, I have Gonzaga defeating North Carolina in the title game. Unfortunately, the other two teams I had in the Final Four were Lousiville & Wisconsin.

HONOR ROLL

Question 1

The Vermont Supreme Court has described a particular rule as “prophylactic.”  The Court used the word, in part, due to what it termed as the “Hobson’s Choice” that would arise if:

  • A. A client had to disclose a confidence in order to protect it
  • B. A criminal defendant had to take a plea to avoid going to trial with ineffective& incompetent counsel
  • C. A client had to pay an unreasonable fee in order for disciplinary counsel to have grounds to prosecute the lawyer for charging  an unreasonable fee

In the context of former-client conflicts that arise under Rule 1.9, lawyers often say “but I don’t remember anything about the case.” It doesn’t matter. If the old case is the same as or substantially related to the new case, the Court will presume that confidences were shared. Otherwise, former clients will face of Hobson’s Choice of having to disclose confidences in order to protect them.

Question 2

Lawyer represents Client. Lawyer reasonably believes that Client will offer false testimony. However, the rules prohibits Lawyer from refusing to offer the evidence.

Question 3

What do these rules have in common?

  • A. The rule requiring zealous representation
  • B. The rule requiring lawyers to maintain copies of ads for 2 years
  • C. The rule prohibiting the appearance of impropriety
  • D. The rule prohibiting conduct that adversely reflects on a lawyer’s fitness to practice law

They no longer exist.  Each has been repealed or replaced.

Question 4

The “self-defense” exception to Rule 1.6 is often discussed with respect to:

  • A.    Disclosing a client’s intent to commit a crime
  • B.    Disclosing a misrepresentation that a client made to the court
  • C.    Responding to a client’s negative online review
  • D.    Withdrawing upon discovery of a conflict that was not apparent at the outset of the representation

The so-called “self-defense” exception is Rule 1.6(c)(3). It allows a lawyer to disclose otherwise protected information:

  • to establish a claim or defense in a controversy between the lawyer & client; or
  • to establish a defense to a criminal charge or civil claim regarding the lawyer’s conduct in which the client was involved; or
  • to respond to allegations in any proceeding involving the lawyer’s representation of the client.

Numerous authorities have held that the exception DOES NOT apply to negative online reviews.  

  • B. Ass’n of San Francisco, Ethics Op. 2014-1 (2014) (stating that while lawyers may respond to an online review, the duty of confidentiality still prevents any disclosure of confidential information without the client’s consent)
  • Pa. B. Ass’n, Formal Op. 2014-200 (2014) (lawyer’s response to negative online must be proportional & constrained, and  must not reveal confidential information absent client consent. Negative review doesn’t trigger self-defense exception in Rule 1.6)
  • N.Y. St. B. Ass’n, Op. 1032 (2014) (lawyer may not disclose confidential client information solely to respond to former client’s criticism of the lawyer posted on a lawyer-rating website)
  • New Hampshire Bar Association Ethics Committee, NH Bar News, February 2014 (Lawyer may make limited response, but not so detailed as to divulge confidential information).
  • Los Angeles County B. Ass’n, Ethics Op. No. 525 (2012) (lawyer may publicly respond to comments published by a former client if (1) no confidential information is disclosed, (2) the response does not injure the former client in any matter involving the prior representation, and (3) the response is proportionate and restrained)

Question 5

Name the iconic musician/songwriter whose lyrics are cited more often in U.S. judicial opinions than any other musician.  Chief Justice Roberts and former Justice Scalia are among the scores of judges who have cited to the songwriter.

I never got into him, but found it to be an interesting bit of trivia. The answer is Bob Dylan.  The ABA Journal has it in this post.

Red Sox

Monday Morning Answers: #64

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

Honor Roll

Answers

Question 1

Attorney called with an inquiry.  I listened, then said:

“Good question.  Here’s what it comes down to: your duty is to take reasonable precautions to protect the information from unauthorized disclosure. I’ll send you a few blog posts I’ve written on what ‘reasonable precautions’ are.”

Most likely, Attorney called to discuss:

  • A.  Cloud Storage/Cloud-Based Practice Management Systems.  See, this blog post.
  • B.  A disciplinary complaint that is under investigation
  • C.  A disciplinary complaint that has resulted in formal charges
  • D.. Electronically Stored Information that was inadvertently produced in discovery and that opposing counsel is trying to “claw back”

Question 2

Lawyer works for X.  Lawyer recently accepted a new job with a new employer. Next week, Lawyer will leave X to work for Y.

Y represents a client whose interests are materially adverse to a client who Lawyer represented while working at X.   The two matters are substantially related to each other. Lawyer has a conflict.

The rules will not impute Lawyer’s conflict to other attorneys at Y.  Rather, the rules will allow Y to screen Lawyer.

Which is most likely?

  • A.  X or Y is a government agency.    See, Rule 1.11(d), Comment [2].  The rules allow for screening when a lawyer moves to or from government practice.
  • B.  X and Y are private law firms.
      • B is not correct.  Nothing in the question suggests that both X and Y must be private firms.
  • C.  X represents a former employee of a corporation
      • C is not correct.  Lateral transfers and screens are not relaxed merely because a former client is also a former employee of a corporation.
  • D.  X and Y are in different jurisdictions
      • D is not correct. Lateral transfers and screens are not impacted by the fact that firms are in different jurisdcitions.

Question 3

Attorney called back with another inquiry. I listened, then asked “was it more than $1,000?”

Most likely, Attorney called to discuss:

  • A.   A client who brought a personal check to a real estate closing.  See, Rule 1.15(f) and (g).  Rule 1.15(f) requires a lawyer to have collected funds prior to disbursing from trust.  Rule 1.15(g) sets out instruments against which a lawyer may disburse upon deposit; in other words, instruments that we will presume to constitute collected funds upon deposit. Per Rule 1.15(g)(4) personal checks that do not exceed $1000 are among those instruments.  In this answer, “real estate closing” was a clue.  Buyers often bring personal checks to closings to cover any unforeseen costs. The rule, however, applies beyond closings, to any trust account transaction involving a personal check.
  • B.   Attorney’s deposit of Attorney’s own funds into a  trust account
    • This is not correct. Rule 1.15(d) allows an attorney to deposit an attorney’s own funds into trust, but only in amount necessary to cover bank charges and fees.  There is no $1,00o limit. In fact, for many of you, $1000 would far exceed charges and fees and, therefore, would serve as an impermissible “float.”
  • C.   Funds in Attorney’s trust account that belong to a client Attorney can’t locate
  • D.   Funds in Attorney’s trust account for whom Attorney cannot determine the      owner
    • C & D are incorrect. An attorney’s obligations with respect to unexplained trust funds are not impacted by the amount.

Question 4

Over the past few weeks, attorney regulators and legal ethics types throughout the country have turned their attention Congress.  The reason? Earlier this month, the Chair of the House Judiciary Committee wrote to the ABA and attorney regulators in all 50 states urging them to take action on:

  • A.   Vacancies on the Federal Bench
  • B.    Attorney Advertising Related to Lawsuits involving Pharmaceuticals.  See, Bloomberg BNA has the story HERE.
  • C.    Licensing Paralegals
  • D.   Bar Admission Rules that Impede Trade

Question 5

This week’s Question 5 is inspired by a conversation I had a few days ago with a loyal reader .  The reader followed-up by emailing me a YouTube clip.

Hint: if a question includes “the reader follow-up by emailing me YouTube clip,” well, that’s a hint.

Fictional lawyer spent a week at a fictional trial advocacy school.  The group of lawyers on staff at the school constantly preached “no matter the case, strike first, strike hard, no mercy!”

What name have the lawyers on staff at the trial advocacy school likely given to their group?

My readers know 80’s movies!

The staff likely named itself “Cobra Kai” in honor of John Kreese’s Cobra Kai dojo in The Karate Kid.

Monday Morning Answers: St. Patrick’s Day 2017

shamrock

I should be disbarred from NCAA tournament pools.  That’s all I’m saying on that topic.

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

HONOR ROLL

  • Matt Anderson, Esq.
  • Penny Bennelli, Esq.
  • Beth DeBernardi, Esq.
  • Laura Gorsky
  • Anthony Iarrapino, Esq.
  • Glenn Jarrett, Esq.
  • Patrick Kennedy, First Brother
  • John Leddy, Esq.
  • Pam Marsh, Esq.
  • Joe McNeil, Esq.
  • Hal Miller, Esq.
  • Kane Smart, Esq.
  • Emily Tredeau, Esq.
  • Rusty Valsangiacomo, Esq.

ANSWERS

Question 1

There’s a rule that includes the following sentence: “A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.”

It’s in the set of rules that deals with:

  • A.   Candor to the Court
  • B.   Conduct involving dishonesty, deceit, misrepresentation, and fraud
  • C.   Fairness to Opposing Party and Counsel
  • D.   Advertising/Communications Concerning a Lawyer’s Services.  See, V.R.Pr.C. 7.1

Question 2

Client asks Lawyer to draft a will.   Client intends the will to bequeath a substantial sum to Lawyer’s daughter.

Which is most accurate?

  • A.  Lawyer may not draft the will.
  • B.  Lawyer may not draft the will unless Client gives informed consent
  • C.   Lawyer may not draft the will unless Client gives informed consent, confirmed in writing.
  • D.  Lawyer may not draft the will unless Client is related to Lawyer’s daughter.  See, V.R.Pr.C. 1.8(c).

Question 3

“Astroturfing” is word that is slowly becoming more common in the world of legal ethics. The word is most often used to describe:

  • A.   A lawyer’s practice of posting fake positive reviews & testimonials online.  Check out this blog from North Carolina.
  • B.   A lawyer’s purchase of e-mail distribution lists for mass marketing purposes
  • C.   A lawyer’s surreptitious uses of social media to investigate an adversary
  • D.   A prospective client who consults with as many different firms as possible, attempting to create conflicts that will prohibit the firms from representing the client’s adversary.

Question 4

In legal ethics, “lateral transfers” often give rise to concerns related to:

  • A.   The trust accounting rules
  • B.   Fraudulent conveyances
  • C.   Conflicts of Interest.  Last Thursday, I posted a blog on this topic.  So far, I’ve only received 2 comments on the topic. I’ll share the (without identifying the commenters) in tomorrow’s post. If you’d like to chime in before then, please do.
  • D.   The failure to take reasonable precautions in the electronic storage or transmission of client information.

Question 5

Agnes McDermott was from County Roscommon in Ireland.  She left the Emerald Isle for the U.S., where she met and married a man named William.  Believe it or not, William was also from County Roscommon.  They settled in Newark, New Jersey.

In 1906, the couple had a son.  In 1956, President Eisenhower appointed their son to the U.S. Supreme Court.

Name the U.S. Supreme Court justice whose parents were from County Roscommon in Ireland.

The couple named their son after his father.  The answer is Justice William Brennan, Jr.

Brennan