Medal Monday #205

It’s Memorial Day.  If you have a moment and are so inclined, the National Moment of Remembrance is at 3:00 PM.

Friday’s questions are here.  The answers follow today’s Medalists.

Medalists

• Matthew Anderson, Pratt Vreeland Kennelly Martin & White
• Alberto Bernabe, Professor, John Marshall Law School
• Erin Gilmore, Ryan Smith & Carbine
• Benjamin Gould, Paul Frank & Collins
• Laura Gorsky, Esq.
• Bob Grundstein, Esq.
• Mark Heyman, Esq.
• Glenn Jarrett, Jarrett & Luitjens
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Jeanne Kennedy, JB Kennedy Associates, Blogger’s Mom
• Tom Little, Little & Cicchetti
• Pam Loginsky, Washington Association of Prosecuting Attorneys
• Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
• Hal Miller, First American
• Herb Ogden, Esq.
• Jay Spitzen, Esq.
• Thomas Wilkinson, Jr., Cozen O’Connor
• Peter Young, General Counsel, Vermont Railway System

Answers

Question 1

Fill in the blank. (choices are below)

“In the course of representing a client a lawyer ___________ make a false statement of material fact or law to a third person.”

• A.   should not
• B.   should take reasonable steps not to
• C.   may
• D.   shall not   V.R.Pr.C. 4.1

Question 2

I’ve often mentioned the 7 Cs of Legal Ethics.  This week, preparing a CLE for government attorneys, I realized that there might be an 8th.

While a government attorney likely won’t have to worry about “commingling,” a government attorney often must ask a question that lawyers in private practice do not:

• Who is the _________?

The answer begins with the letter C.

CLIENT

Question 3

Speaking of the Cs, a rule involving one of them includes a comment that says:

• “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 lawyer’s violation of this rule.”

What C?

Conflicts of Interest.  The language is from V.R.Pr.C. 1.7 Comment [3].  

Question 4

Lawyer called me with an inquiry.  My response included the words “scrubbing” and “spoliation,” as well references to several advisory ethics opinions that also speak of “scrubbing and spoliation.”

It’s most likely that Lawyer called because a client asked Lawyer:

• A.   To withdraw.
• B.   Whether the client could “take down” social media posts.
• C.   Whether Lawyer would accept payment via PayPal or Venmo.
• D.  To refund a retainer paid by a personal check that had been deposited to trust, but that did not yet constitute “collected funds.”

This post from September 2019 includes links to several social medial advisory ethics opinions, as well as to the Social Media Ethics Guidelines published by the New York State Bar Association’s Commercial & Federal Litigation Section.

Question 5

With Memorial Day in mind, believe it or not, there are lawyers who earned the distinction of being buried in at Arlington National Cemetery!  Yes Dad, posthumously!

Among them, William Howard Taft.  Having served as U.S. President and Chief Justice of the United States Supreme Court, Taft is the only person ever to lead two branches of government and was the first president buried at Arlington.

I don’t know whether Major League Baseball will return this summer.  If it does, I don’t know whether fans will be allowed to attend.  Someday, however, baseball stadiums will again include fans.

As he is with leading branches of government,  Taft is associated with not one, but two of baseball’s enduring game-day traditions.  The first is something that Taft did on the field, but that fans can only watch.  The second is something in which fans enthusiastically participate and one that, according to lore, became popular because of something Taft did in the stands.

Name either tradition.

Taft was the first president to throw out the “first pitch” on Opening Day and, according to lore, made the 7th inning stretch a thing.

Medal Monday #203

Good morning!

I’ve renamed the Monday column in honor of a running tradition: “Medal Monday.”  The list formerly known as the “Honor Roll” will now fall under the caption “Medalists.”

Friday’s questions are here.  The answers follow the Medalists. For video answers with bonus commentary not available on the blog, go here.  It’s only 3:43.  By the way, my mom’s presence on the Honor Roll is not a courtesy mention for Mother’s Day.  She made it on her own doing!  Happy Mother’s Day mom!

And, yes! Actual medals are in the works! Might take a while, but I’ve got a plan.

Medalists

• Matthew Anderson, Pratt Vreeland Kennelly & White
• Penny Benelli, Dakin & Benelli
• Alberto Bernabe, Professor, UIC John Marshall Law School
• Andrew Delaney, Martin Delaney & Ricci Law Group
• Erin Gilmore, Ryan Smith & Carbine
• Robert Grundstein, Esq.
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Jeanne Kennedy, JB Kennedy Associates, Blogger’s Mom
• Deborah Kirchwey, Esq.
• Elizabeth Kruska, President-Elect, VBA Board of Managers
• John Lamson, Have Justice Will Travel
• John Leddy, McNeil Leddy & Sheahan
• Mick Leddy, McNeil Leddy & Sheahan
• Tom Little, Little & Cicchetti
• Pam Marsh, Marsh & Wagner
• Jack McCullough, Project Director, Mental Health Law Project
• Herb Ogden, Esq.
• Jim Runcie, Ouimette & Runcie
• Kristen Shamis, Monaghan, Safar, Ducham
• Jay Spitzen, Esq.
• Jonathan Teller-Elsberg, Vermont Law School, JD Candidate
• Jack Welch, Esq.

Question 1

X = the number of annual pro bono hours suggested by the rules.

Y = the number of years the rules require lawyers to maintain trust account records following the termination of the representation.

What is X * Y?

• A.  420
• B.  360
• C.  350
• D.  300

X = 50. V.R.Pr.C. 6.1(a)  

Y = 6. V.R.Pr.C. 1.6(a)

Question 2

What is the subject of the rule described here?

• must be in a writing, signed by the client.
• must be reasonable.
• prohibited in criminal cases.
• prohibited for securing a divorce.

A Contingent Fee.  V.R.Pr.C. 1.5(c)

Question 3

Below is my response to an inquiry.  It refers to one of the 7 C’s of legal ethics.  Which one?

• Your duty is to remonstrate with the client, take reasonable remedial measures including, if necessary, disclosure to the tribunal.

CANDOR.  V.R.Pr.C. 3.3

Question 4

When used properly, the phrases “lateral transfers” and “ACH transfers” are used when discussing the rules on:

• A.  conflicts of interest
• B.  trust accounting
• C.  respectively: conflicts of interest & trust accounting
• D.  normal people don’t use phrases like these

Question 5

On May 8, 1978, David Berkowitz, against the advice of counsel, pled guilty to a series of charges relating to 8 separate shootings that left 6 dead and 7 wounded.

In 1999, Spike Lee made a movie that focused on an Italian-American neighborhood in the Bronx.  The movie was set in 1977 and against the backdrop of Berkowitz’s crime spree, a sweltering heat wave, and the Yankees’ championship season.

What was the nickname that the press used to refer to Berkowitz?

Bonus: what was the name of the movie?

Nickname: SON OF SAM

Movie: SUMMER OF SAM (A SPIKE LEE Joint)

 

Monday Morning Honors

Happy Star Wars Day!

Don’t forget: on Thursday, and as part of National Lawyer Well-Being Week, I’m live-streaming legal ethics trivia.  I’ll start at 7PM on my YouTube channel.

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

Honor Roll

• Matt Anderson, Pratt Vreeland Kennelly Martin & White
• Penny Benelli, Dakin & Benelli
• Mimi Brill, Windham County Public Defender
• Honorable John M. Conroy, United States Magistrate Judge, District of Vermont
• Beth DeBernardi, Administrative Law Judge, VT Dept. of Labor
• Andrew Delaney, Martin Delaney & Ricci Law Group
• Erin Gilmore, Ryan Smith & Carbine
• Robert Grundstein, Esq.
• Tammy Heffernan, Esq.
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Elizabeth Kruska, President-Elect, VBA Board of Managers
• John Leddy, McNeil Leddy & Sheahan
• Jeffrey Messina, Bergeron Paradis Fitzpatrick
• Hal Miller, First American
• Herb Ogden, Esq.
• Kevin Shortell, Law Offices of Fred Peet
• Norman Smith, Esq.
• Jay Spitzen, Esq.
• Jonathan Teller-Elsberg, Vermont Law School, JD Candidate
• Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

A friend of mine dropped off some syrup last night. And I hadn’t done anything to deserve it!  But it made me think of this question:

True or false?  The rules specifically prohibit lawyers from bartering for legal services.

FALSE.  The terms are subject, however, to the reasonableness standard V.R.Pr.C. 1.5 (lawyer shall not charge an unreasonable fee).

Question 2

Most of the Rules of Professional Conduct apply generally, regardless of practice area. However, there’s a one rule that specifically addresses the “special responsibilities” of  ________:

• A.  Bar Counsel.
• B.  Insurance Defense Lawyers
• C.  Probate Lawyers
• D.  Prosecutors  V.R.Pr.C. 3.8, Special Duties of a Prosecutor

Question 3

Attorney represents Client.  Having good cause to do so, Attorney moves to withdraw from the representation.  The motion is denied, and the trial court orders Attorney to continue to represent Client.  By rule,  ______:

• A.  the trial court must certify an interlocutory appeal.
• B.  Attorney must request reconsideration and, if denied, immediately appeal.
• C.  Attorney shall continue to represent Client.   V.R.Pr.C. 1.16(c).
• D.  disobeying the trial court’s order is not an ethics violation.

Question 4

Sole Practitioner called me with an inquiry. I listened, then shared my thoughts.  I added “by the way, I have no idea why, but there’s actually a rule that says if you do, you have to cease the private practice of law in the geographic area in which you’ve practiced.”

If you do . . .what?

• A.   Get elected to the Legislature.
• B.   Plead guilty to a crime.
• C.   Get licensed in another profession.
• D.   Sell your law practice.  V.R.Pr.C. 1.17(a).

Question 5

Speaking of the Devil . . .

Jabez Stone was a New England farmer who fell upon hard times.  In exchange for 7 years of prosperity, Stone sold his soul to Mr. Scratch.  When Mr. Scratch sought to enforce the contract, Stone retained a lawyer.  A famous trial ensued.

Name the lawyer who represented Stone.

Daniel Webster in The Devil & Daniel Webster, by Stephen Vincent Benet.

Monday Morning Honors

Good morning.

Last night, I filmed another in the Garage Bar series of CLEs: Pro Bono & Professional Responsibility. It includes some of my thoughts on the need and the key rules to remember.  It’s 30 minutes, which brings the Garage Series to 6 hours since we started isolating.  Keep rowing!

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

Honor Roll

• Penny Benelli, Dakin & Benelli
• Andrew Delaney, Martin Delaney & Ricci Law Group
• Jennifer Emens-Butler, Education & Communication, Vermont Bar Association; VBA Past-President
• Erin Gilmore, Ryan Smith & Carbine
• Laura Gorsky, Esq.
• Robert Grundstein, Esq.
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
• Jeffrey Messina, Bergeron Paradis Fitzpatrick
• Hal Miller, First American Title Insurance
• Dan Richardson, Tarrant Gillies & Richardson; VBA Past-President
• Kristen Shamis, Monaghan, Safar, Ducham
• Jay Spitzen, Esq.
• Robyn Sweet, CORE Registered Paralegal, Cleary Shahi  & Aicher
• Jonathan Teller-Elsberg, Vermont Law School, JD Candidate
• Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

How many hours of pro bono legal services do the Rules suggest a lawyer should provide each year?

• A.   50, and the rule applies to all lawyers. 
• B.   50, but the rule exempts government lawyers.

Rule 6.1 is clear: “Every lawyer has a professional responsibility to provide legal services to those unable to pay.”

If you’re interested in opportunities to provide pro bono legal services, please contact Mary Ashcroft.  Mary is the Vermont Bar Association’s Legal Access Coordinator. Here is a list of several low bono & pro bono programs. Or, check out the Vermont Volunteer Lawyers Project.

Question 2

I often mention “7 Cs of Legal Ethics.”  Each is a single word that begins with the letter “C.”  The construct is a helpful tool to remember the basics.

Anyhow, there is a rule that includes an exception that allows a lawyer to do something otherwise prohibited in order “to establish a claim or defense . . . .in a controversy between the lawyer and client.”

What is the “C” associated with the rule?

CONFIDENTIALITY.  Rule 1.6(a) prohibits a lawyer from disclosing information relating to the representation of a client.  Rule 1.6(c)(3) includes the exception stated in the question.

Question 3

In Vermont, a lawyer has a duty to take reasonable remedial measures upon learning that a client or witness called by the lawyer has offered material evidence that is false.  Per the applicable rule, this includes, if necessary, disclosure to the tribunal.  By rule, how long does the duty continue?

• A.  until the lawyer is allowed to withdraw.
• B.  until the conclusion of the proceeding.  
• C.  forever.
• D.  Trick question.  There is no circumstance in which a lawyer is authorized to inform a tribunal that a client submitted false evidence, even if the evidence was material.

V.R.Pr.C. 3.3(c).  Per Comment [13], “[a] proceeding has concluded within the meaning of this rule when a final judgment in the proceeding has been affirmed on appeal or the time for review has passed.”

Question 4

Former Client contends that Attorney committed malpractice.  They meet.  Former Client is not represented.  Former Client and Attorney discuss a settlement.

By rule, what must Attorney do before settling?

• A.  advise Former Client in writing of the desirability of seeking independent legal advice related to the matter.
• B.  give Former Client a reasonable amount of time to seek independent legal advice related to the matter.
• C.  stop settlement discussions because lawyers are prohibited from settling malpractice claims with former clients who are not represented by counsel.
• D.  A and B. V.R.Pr.C. 1.8(h)(2).

Question 5

Speaking of Arrested Development, the show includes 3 of my favorite fictional attorneys. Julia Louis-Dreyfuss appeared in a handful of episodes as Maggie Lizer, an ethically challenged prosecutor.

The other two attorneys are Barry Zuckerkorn and Bob Loblaw.  The former struggles with the duty of competence, while the latter runs the greatest blog in the history of blogs: The Bob Loblaw Law Blog.  Here’s Zuckerkorn’s business card.   For the question that follows, it’s literally the second biggest hint in the history of hints, behind only the hint in the introduction to the quiz.

Arrested Development debuted in 2004.  However, the actors who play Zuckerkorn and Loblaw also appeared together in a popular comedy that debuted in 1974.  Name that show that debuted in 1974.

Henry Winkler (Zuckerkorn) and Scott Baio (Loblaw) also appeared together in Happy Days.  Kudos to Dan Richardson for noting it was originally entitled both Love and the Television Set and Love and the Happy Days when it premiered as an episode on the anthology series Love, American Style.

 

Monday Morning Honors

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

HONOR ROLL

• Penny Benelli, Dakin & Benelli
• Andrew Delaney, Martin Delaney & Ricci Law Group
• Jennifer Emens-Butler, Education & Communication, Vermont Bar Association
• Erin Gilmore, Ryan Smith & Carbine
• Laura Gorsky, Esq.
• Benjamin Gould, Paul Frank & Collins
• Robert Grundstein, Esq.
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Elizabeth Kruska, President-Elect, VBA Board of Managers
• Cassandra LaRae-Perez, Special Counsel, Gravel and Shea
• 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.
• Norman Smith, Esq.
• Jay Spitzen, Esq.
• Jonathan Teller-Elsberg, Vermont Law School, JD Candidate
• Thomas Wilkinson, Jr., Cozen O’Connor

ANSWERS

Question 1

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

True or False?

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

FALSE.  Per Rule 4.2, while representing a client in a matter, a lawyer shall not communicate on the subject of representation with another person who the lawyer knows is represented in the matter.  A sentence in Comment [4] states that “this rule [does not] preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter.”  The Reporter’s Note to the 2009 Amendment to Comment [4] “clarifies that Rule 4.2 does not preclude communication from a represented person who is seeking a second opinion from a lawyer who is not representing a person in the matter.”

Question 2

Absent a written agreement between Lawyer & Client saying it will be treated otherwise, a flat fee paid in advance of any services being performed by Lawyer ____________:

• A. must be deposited into trust.
• B.  must not be deposited into trust.
• C.  violates the rules.
• D.  None of the above.

Rule 1.15(c) requires fees paid in advance to be deposited in trust until earned.  The only exception is a fee that the lawyer & client have agreed to treat as earned upon receipt and that has been memorialized as required by Rule 1.5(f). I discuss the distinction in this CLE video: Flat Fees, Misappropriation & Trust Account Scams (35 minutes).

Question 3

Last month, Person met with Lawyer to discuss the possibility of forming a lawyer-client relationship.  It was their only meeting or conversation.  Last week, Person informed Lawyer that Person has decided not to retain Lawyer and will retain another attorney. You may assume that Person met with Lawyer in good faith.

Which is most accurate?

• A.  Lawyer is not bound to keep Person’s confidences.
• B.  Lawyer owes the same duty of confidentiality as would be owed to any current or former client.
• C.  The rules do not address this situation.  The rules refer only to duties owed to clients who form professional relationships with lawyers.
• D.  That consultation better have been virtual!

Per Rule 1.18(b), “even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation” except as otherwise permitted or requied by the confidentiality rules that apply to current and former clients.

Question 4

For conflicts purposes, which do the rules treat differently than the others?

• A.  a former client conflict that arises when Lawyer moves from private practice to government practice.
• B.  a former client conflict that arises when Lawyer moves from government practice to practice.
• C.  a conflict that arises from a Lawyer’s personal interest that would not create a significant risk of materially limiting the representation if handled by another attorney in Lawyer’s firm
• D.  The rules treat each the same. None is imputed to the other lawyers in Lawyer’s firm/office.

For A & B, Rule 1.11 permits screening when lawyers move to and from government practice.  Option C is direct from Rule 1.10(a), the rule that otherwise imputes conflicts to all members of the affected lawyer’s firm.

Question 5

This is my personal all-time favorite and is my only concession to 200 being anything other than something.  There’s a hint into the intro.

It’s a good thing Michael Scott isn’t a lawyer.  In an episode of The Office, Michael ran over a co-worker in the company parking lot. He was driving a company car. When asked by an HR rep if the accident happened on company property, Michael replied:

• “On company property, with company property.”

Then, citing to the Bill of Rights, Michael said “So . . .  we’re fine.”

What legal theory found in the Bill of Rights did Michael mistakenly think rendered him and the company “fine?”

DOUBLE JEOPARDY.  Then after Toby remarks that he doesn’t think Michael understands how this works, Michael adds “I’m sorry.  What is Double Jeopardy?”

Monday Morning Honors

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

Honor Roll

• Matthew Anderson, Pratt Vreeland Kennelly & White
• Penny Benelli, Dakin & Benelli
• Alberto Bernabe, Professor, University of Illinois-Chicago John Marshall Law School
• Andrew Delaney, Martin Delaney & Ricci Law Group
• Erin Gilmore, Ryan Smith & Carbine
• Robert Grundstein, Esq.
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• John Leddy, McNeil Leddy & Sheahan
• Kevin Lumpkin, Sheehey Furlong & Behm
• Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
• Margaret R. Moreland, Lawyer & Law Librarian
• Jacob Oblak, Bergeron Fitzpatrick Paradis
• Herb Ogden, Esq.
• Jim Runcie, Ouimette & Runcie
• Kristen Shamis, Monaghan, Safar, Ducham
• Jay Spitzen, Esq.
• Ashley Taylor, Horsley Lajoie Goldfine
• Jonathan Teller-Elsberg, Vermont Law School, JD Candidate
• Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

If continued representation of a client will result in a violation of the Rules of Professional Conduct or other law, a lawyer ________________:

• A.   may withdraw.
• B.   must withdraw.

This is Rule 1.16(a)(1).  It is one of three instances in which Rule 1.16(a) requires withdrawal.  The other two are:

• (a)(2): “the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client;” and,
• (a)(3) “the lawyer is discharged.”

Question 2

Which is discussed in a different rule than the others?

• A.   whether to settle a civil claim.
• B    whether to accept a plea offer in a criminal case.
• C.   whether to testify in a criminal case.
• D.   whether two matters are the same or substantially related.

A, B, and C are decisions that, per Rule 1.2(a), are the client’s.  D is a phrase that appears in Rule 1.9(a), the rule that addresses a lawyer’s duties to a former client.  The rule prohibits a lawyer from representing a new client whose interests are materially adverse to a former client’s in the same or a substantially related matter.  Unless, of course, the former client provides informed consent, confirmed in writing.

Question 3

Scenario:   Third Person is paying Lawyer to represent Client.  Client has given Lawyer informed consent to accept payment from Third Person.  Third Person is not interfering with Lawyer’s professional judgment.

True or false?

Lawyer does not need Client’s consent to share with Third Person otherwise confidential information relating to Lawyer’s representation of client.

This is FALSE. 

Rule 1.8(f) permits a lawyer to accept compentatsion from someone other than the client only if “(1) the client gives informed consent; (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and (3) information relating to the representation is protected as required by Rule 1.6.”  Rule 1.6 is the rule on client confidences.   

In short, the fact that someone else is paying does not operate as a waiver of the client’s confidentiality.

Question 4

There’s a rule that prohibits a lawyer from communicating ex parte with two groups of people.  Each group begins with the same letter.  Name one of the groups

Rule 3.5 prohibits ex parte communication with JUDGES and JURORS. 

If this quiz were graded, I’d also accept “persons” and “parties.”  Rule 4.2 prohibits communication with represented persons, which includes represented parties, without the consent of the represented’s lawyer.

Question 5

I owe an opera question to one of my most loyal readers!

I often preach the duty of competence.

Derrick Wang is an uber-talented composer and writer who teaches interdisciplinary courses in music and law at Johns Hopkins.  Wang’s works include an opera that has received rave reviews.  With the tag line “we are different: we are one,” the opera was inspired by the friendship and writings of two U.S. Supreme Court justices.  Last month, a review in OperaWire opined that “this is the kind of opera that should be everywhere.”  When it comes to operas, Wang clearly has satisfied the duty of competence.

Name the two Supreme Court justices who inspired Wang’s opera.

The name of the opera is Scalia/Ginsburg.  The characters:

The inspirations therefor:

Monday Morning Honors

Good morning.

You rowed through another weekend! Great job!  Not to sound like this person . . .

. . . but keep rowing! It’s all we can do.

If you missed them, Friday’s questions are here.  The answers follow today’s announcements and Honor Roll.

Announcements

• Video CLE

I recorded another video the Garage Series this weekend.  In it, I share thoughts & tips on complying with the Rules of Professional Conduct during the COVID-19 public health crisis.  Each video is approved for ethics CLE:

• Professional Responsibility & COVID-19 
• Trust Accounting 1 – Don’t fear, simplify.
• Trust Accounting 2 – Basics (and don’t commingle)
• Sailing the 7 C’s of Legal Ethics

These add up to 2 hours of ethics CLE.   Later today, I’m recording Part 3 in the Trust Accounting Series.

• The Championship Match

After two weeks of voting, we are down to the championship match of the inaugural Professional Responsibility & Legal Ethics tournament.  Thank you to all who have voted!  Most of you have informed me that you’ve based your votes on “which rule/concept is more important?”  The finalists:

• • Candor to the Tribunal: Rule 3.3
  • Who decides? Lawyer or Client?  Rule 1.2(a)

To vote, go to THE CHAMPIONSHIP.

For a list of results from prior rounds, go here

I’m not sure whether it’s good or bad, but the winner of the My Cousin Vinny bracket did not advance to the championship.  Speaking of that bracket, I shed but a brief tear that the collective you preferred “Did you say yutes?” over “Were these MAGIC grits?” 

Honor Roll

• Penny Benelli, Dakin & Benelli
• Alberto Bernabe, Professor, John Marshall Law School
• Honorable John M. Conroy, United States Magistrate Judge, District of Vermont
• Beth DeBernardi, Administrative Law Judge, VT Dept. of Labor
• Erin Gilmore, Ryan Smith & Carbine
• Laura Gorsky, Esq.
• Robert Grundstein, Esq.
• Tammy Heffernan, Esq.
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• John Leddy, McNeil Leddy & Sheahan
• Tom Little, Little & Cicchetti
• Kevin Lumpkin, Sheehey Furlong & Behm
• Jeffrey Messina, Bergeron Paradis Fitzpatrick
• Hal Miller, First American
• Herb Ogden, Esq.
• Jim Runcie, Ouimette & Runcie
• Norman Smith, Esq.
• Jay Spitzen, Esq.
• Robyn Sweet, CORE Registered Paralegal, Cleary Shahi  & Aicher
• Ashley Taylor, Horsley Lajoie Goldfine
• Jonathan Teller-Elsberg, Vermont Law School, JD Candidate

Answers

Question 1

Lawyer represented Client. The representation ended yesterday.   By rule, what must Lawyer retain for 6 years?

• A.   Client’s file.
• B.   a copy of Client’s file.
• C.   a copy of the advertisement that led Client to Lawyer.
• D.   complete records of property & funds held in trust for Client.  Rule 1.15(a)(1).

Question 2

By rule, attorneys are subject to compliance audits by disciplinary counsel.  Compliance with what?  The rule(s) on _____________________:

• A.  trust accounting.  Rule 1.15A(b)
• B.  keeping clients reasonably updated as to the status of their matters.
• C.  adequately protecting client information that is stored electronically.
• D.  file delivery.

Question 3

True or false?

Under Vermont’s rules, all conflicts of interest can be waived.

FALSE.  See, Rule 1.7(b) for a list of criteria that, if present, indicate that a conflict cannot be waived.

Question 4

Attorney called me with an inquiry.  I listened, then replied:

“For it to be okay, 3 things have to happen.  (1) It has to be in proportion to services you render, or, if not, you have to agree to assume joint responsibility for the representation; (2) the client has agree and confirm the agreement in writing; and, (3) the total has to be reasonable.”

What did Attorney call to discuss?

• A.   a contingent fee agreement.
• B.   entering into a limited representation agreement.
• C.   sharing a fee with a lawyer in another firm.  Rule 1.5(e).
• D.   settling a malpractice claim with a former client who is not represented by counsel.

Question 5

As most of you know, live sporting events are on hold.

One of the last large-scale sporting events to take place before the pandemic tightened its devastating grip was The Mint 400.  Held annually in Nevada, it’s one of the oldest & most prestigious off-road races in the country.

Raoul Duke is a fictional character.  In a famous novel, he was hired by a magazine to cover The Mint 400.  He brought his lawyer with him.  Per the novel’s, wiki entry, client and lawyer’s:

• “job is repeatedly obstructed by their constant use of a variety of recreational drugs, including LSD, ether, cocaine, alcohol, mescaline, and cannabis. This leads to a series of bizarre hallucinogenic experiences, during which they destroy hotel rooms, wreck cars, and have visions of anthropomorphic desert animals, all the while ruminating on the decline of both the ‘American Dream’ and the ’60s counterculture in a city of greed”

Whoa.  Talk about attorney wellness!

Name the novel and the lawyer.

Novel:  Fear & Loathing in Las Vegas: A Savage Journey to the Heart of the American Dream

Lawyer: Dr. Gonzo.

 

Monday Morning Honors: #196

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

Special honors to Deb Bucknam.  Deb follows the blog and, after reading Friday’s post, sent me an email encouraging to me stay positive. Deb is leading by example.  She’ll probably be upset that I’m blogging this, but, oh well.

My blog mentioned my aunt and grandmother and how, even when down, they stayed positive and put others first.  It also mentioned the stories I’d heard last week of so many others doing the same in a trying time: staying kind, supporting others.  Deb’s email added to the list of stories and reminded me of Nanny and Aunt Kate.

First, she gave me a chuckle by remarking that it’s not too difficult to social distance on her 100-acre farm, Then, she mentioned that she’s buying gift cards from local restaurants & donating them to staff at Northeastern Vermont Regional Hospital.

Great idea Deb! Kudos!

Honor Roll

• Evan Barquist, Montroll Backus & Oettinger
• Penny Benelli, Dakin & Benelli
• Andrew Delaney, Martin Delaney & Ricci Law Group
• Erin Gilmore, Ryan Smith & Carbine
• Laura Gorsky, Esq.
• Robert Grundstein, Esq.
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Deborah Kirchwey, Esq.
• Elizabeth Kruska, President-Elect, VBA Board of Managers
• John Leddy, McNeil, Leddy, & Sheahan
• Pam Loginsky, Washington Association of Prosecuting Attorneys
• 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
• Kristen Shamis, Monaghan, Safar, Ducham
• Jay Spitzen, Esq.
• Jonathan Teller-Elsberg, Vermont Law School, JD Candidate

Answers

Question 1

The phrase “in the same or a substantially related matter” appears in the rule on:

• A.  former client conflicts.  V.R.Pr.C. 1.9(a).
• B.  disclosing client confidences.
• C.  dealing with an unrepresented person.
• D.  ex parte communication with a tribunal.

If the matter is the same as or substantially related to a matter in which a lawyer represented Former Client, a lawyer cannot represent a person whose interests are materially adverse to Former Client’s unless Former Client gives informed consent, confirmed in writing.

Question 2

Which is associated with a different rule than the other 3?

• A.  Records documenting receipts & disbursements.
• B.  Records documenting timely reconciliation
• C.  Lateral transfers.
• D.  Wire transfers.

A, B, and D relate to trust accounting.  “Lateral transfers” are lawyers who move from one private firm to another.  Rule 1.10(a) applies.  For more, see this blog post.

Question 3

Attorney called me with an inquiry.  I listened, then replied “well, it’s been that way for about 20 years now.  It was that long ago that 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.”

Given my response, what rule did Attorney call to discuss?

Rule 4.2.  It’s the rule that prohibits communication with a represented person on the subject of the representation.  In January, I posted The No-Contact Rule.

Question 4

Lawyer called me with an inquiry. I listened, then said: “I suggest that, unless the client agrees, the lawyer decline and require a subpoena.  Then, generally, the duty is to raise all non-frivolous defenses in a motion to quash.”

It’s most likely that Lawyer called to discuss _________________:

• A.  receiving a request to testify against a former client about the representation of the former client.
• B.  receiving notice that Disciplinary Counsel intends to audit Lawyer’s trust account.
• C.  A or B.
• D.  Neither A nor B. Another issue altogether.

By rule, lawyers “shall submit” to Disciplinary Counsel’s confidential compliance exams. V.R.Pr.C. 1.15A(b). Thus, I have not advised lawyers to decline and require subpoenas.

Question 5

Earlier this week, I made this 35-minute video in which I discussed the 7 C’s of legal ethics.  The Cs include “candor” and “communicating reasonable expectations to clients.”  It’s a concept that reminds me of one of my favorite quotes from a fictional lawyer.

While operating “I Can’t Believe It’s a Law Firm!” in a shopping mall, the fictional lawyer often skirted, if not flagrantly violated, the ethics rules.  As far as heeding my advice to set reasonable expectations, the lawyer once said to a client:

• ““Mr. Simpson, the state bar forbids me from promising you a big cash settlement.  But just between you and me, I promise you a big cash settlement.”

Looping in candor, and as Kruska, President-Elect of the Vermont Bar Association, reminds me, the lawyer’s business card was an exercise in vocab gymnastics:

Seems pretty clear to me.

Name the fictional lawyer.

Lionel Hutz.

Monday Morning Answers #195

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

Also, here’s an update on Vermont State Court operations that I posted Friday afternoon.  I’ll continue to update as decisions are made.

Honor Roll

• Karen Allen, Esq.
• Matthew Anderson, Pratt Vreeland Kennelly & White
• Alberto Bernabe, Professor, John Marshall Law School
• Andrew Delaney, Martin Delaney & Ricci Law Group
• Erin Gilmore, Ryan Smith & Carbine
• Laura Gorsky, Esq.
• Robert Grundstein, Esq.
• Glenn Jarrett, Jarrett & Luitjens
• Deborah Kirchwey, Esq.
• John Leddy, McNeil, Leddy, & Sheahan
• Tom Little, Little & Cicchetti
• Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
• Hal Miller, First American
• Herb Ogden, Esq.
• Eric Parker, Bauer Gravel & Farnham
• Jim Runice, Ouimette & Runcie
• Jay Spitzen, Esq.
• Jonathan Teller-Elsberg, Vermont Law School, JD Candidate

Answers

Question 1

Lawyer & Client are engaged in a sexual relationship.  Which is most accurate?

• A.   It’s a violation.
• B.   Unless the Client waived the conflict, it’s a violation.
• C.   If Lawyer & Client have the same employer, it’s not a violation.
• D.  It’s a violation unless the sexual relationship pre-dates the representation.

This is Rule 1.8(j).  The Court adopted it in January 2018. I blogged often this issue, including this post upon the Court’s adoption of the rule.

Question 2

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 to contact an attorney for advice.
• D.  So long as Lawyer explains that she represents Client and that Client is adverse to Opposing Party, Lawyer may explain her own view of the meaning of the document.

Be careful here.  Yes, “D” is the answer.  Rule 4.3 covers a lawyer’s duties when dealing on behalf of a client with an unrepresented person. The final sentence to Comment [2] reads:

• “So long as the lawyer has explained that the lawyer represents an adverse party and is not representing the person, the lawyer may inform the person of the terms on which the lawyer’s client will enter 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 obligation.”

Question 3

Red and Blue are involved in a legal dispute.  Yesterday, each retained counsel.  Red hired Attorney, while Blue hired Lawyer.

Attorney & Lawyer do not work in the same firm.  However, they’re married to each other.

Which is most accurate?

• A.  Attorney or Lawyer must withdraw.
• B.  Attorney and Lawyer must withdraw.
• C.  Ordinarily, both Attorney & Lawyer must disclose their marriage to their respective clients, and each must receive informed consent to continue the representation.
• D.  Nothing in the rules covers this.

Rule 1.7 governs situations in which a lawyer’s duties to a current client are limited by duties owed to someone other than the client.  Per Comment [11], when opposing lawyers are “related by blood, marriage or civil union” there’s a risk that client confidences will be revealed or that the relationship will limit a lawyer’s exercise of independent judgment on behalf of the client. As such, “a lawyer ordinarily may not represent a client in a matter where [the lawyer’s spouse] is representing another party, unless each client gives informed consent.”

This is an area in which informed consent is allowed, but one in which, to me, it’s best to decline a client whose adversary is represented by your spouse.

Question 4

There’s a rule that permits a lawyer to disclose otherwise confidential information relating to the representation of a client in order to respond to “establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and client.”

Of the following, which is most likely NOT to constitute “a controversy” between the lawyer and client that would permit the lawyer to disclose confidential information?

• A.   Client sues Lawyer for malpractice.
• B.   Client files a complaint against Lawyer with the Fee Arbitration Committee
• C.   Client files a disciplinary complaint against Lawyer with the PRB.
• D.   Client posts a negative online review about Lawyer.

I intend to blog about this later this week. For now, remember: courts & bar associations have been clear in decisions & advisory opinions: a negative online review is NOT a controversy between lawyer & client that allows a lawyer to disclose otherwise confidential information.

Question 5

Ts & Ps to all affected by COVID-19, including Tom Hanks.

Hanks’ first Academy Award for Best Actor was for his role as Attorney Andrew Beckett.  In the movie, Beckett sued his law firm for wrongful termination.  He claimed that the firm (1) fired him because he had AIDS; and (2) that the firm’s alleged justification for firing him for missing an important deadline was one that the firm concocted.

Attorney Joe Miller represented Hanks at trial and won.  Competence!

A few years earlier, the actor who played Miller won the Academy Award for Best Supporting Actor for his role as Private Silas Trip in a movie set during the U.S. Civil War.   Several years later, the same actor won the Academy Award for Best Actor for his work as Detective Alonzo Harris, an unethical LA police officer.

Name the actor.

Denzel Washington.

Monday Morning Answers #194

You can’t get to Friday without going through Monday!

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

Honor Roll

• Karen Allen, Esq.
• Matthew Anderson, Pratt Vreeland Kennelly & White
• Evan Barquist, Montroll Backus & Oettinger
• Erin Gilmore, Ryan Smith & Carbine
• Laura Gorsky, Esq.
• Robert Grundstein, Esq.
• Anthony Iarrapino, Wilschek & Iarrapino
• Glenn Jarrett, Jarrett & Luitjens
• Deborah Kirchwey, Esq.
• John Leddy, McNeil, Leddy, & Sheahan
• Tom Little, Little & Cicchetti
• Pam Loginsky, Washington Association of Prosecuting Attorneys
• Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
• Jeffrey Messina, Bergeron Paradis Fitzpatrick
• Hal Miller, First American
• Herb Ogden, Esq.
• Eric Parker, Bauer Gravel & Farnham
• Jim Runice, Ouimette & Runcie
• Kristen Shamis, Monaghan, Safar, Ducham
• Jay Spitzen, Esq.
• Jonathan Teller-Elsberg, Vermont Law School, JD Candidate
• Thomas Wilkinson, Jr., Cozen O’Connor
• Zachary York, Vermont Superior Court, Civil Division

Answers

Question 1

Which is most accurate in Vermont?

• A.  By statute, lawyers to carry malpractice insurance.
• B.  The Rules of Professional Conduct require lawyers to carry malpractice insurance.
• C.  The Rules of Professional Conduct affirmatively require a lawyer who does not carry malpractice insurance to disclose that fact to prospective clients.
• D.  There is no requirement that lawyers carry malpractice insurance.

Rule 1.4 requires a lawyer to provide a client with sufficient information to make informed decisions about the representation.  Arguably, an informed decision to retain a lawyer includes knowing whether the lawyer carries liability insurance. For now, however, there is no affirmative requirement that Vermont lawyers carry liability insurance or disclose to prospective clients the fact that they do not.  On March 27, the Professional Responsibility Board will begin to study whether to require one or other.

Question 2

New Client wants to retain Lawyer in a matter in which New Client’s interests are materially adverse to the interests of Lawyer’s Former Client.  The new matter is substantially related to the matter in which Lawyer represented Former Client.  However, Lawyer does not remember any details about Former Client’s matter and doesn’t recall receiving any confidential information from Former Client.

Which is most accurate?

• A.  It depends whether the Lawyer’s representation of Former Client ended more than 7 years ago.
• B.  It depends whether Lawyer has access to a copy of the file kept in Former Client’s original matter.
• C.   If the circumstances are such that it is reasonable to believe that Lawyer did not receive (or does not recall receiving) confidential information from Former Client, Lawyer may represent New Client even over Former Client’s objection.
• D.  Because the new matter is substantially related to the former, Lawyer is presumed to have received confidential information from Former Client.  Absent Former Client’s informed consent confirmed in writing, Lawyer cannot represent New Client.

It’s Rule 1.9(a).  For more, see this blog post.

Question 3

Attorney called me with an inquiry.  I listened, then said “quarterly? No.  It has to be ‘timely,” with ‘timely’ defined as ‘no less frequently than monthly.’”

Given my response, Attorney called to discuss?

• A.   Backing up client data that is stored in the cloud.
• B.   The rule that makes it unethical to fail to file a tax return.
• C.  The rule that requires a lawyer to keep a client reasonably updated as to the status of a matter.
• D.   Trust account reconciliation.  V.R.Pr.C. 1.15A(a)(4).

Question 4

True story:  yesterday, I heard from several different lawyers on the same issue.  While none works in the same firm, each had received an email offering to sell them the same domain name.  Each lawyer contacted me to ask whether the domain name complied with the rules.  More specifically, whether the domain name constituted a prohibited “unsubstantiated comparison.”

The lawyers who contacted me did so out of concern about what rule(s)?  The rule(s) on _________:

• A.  Confidentiality of Client Data
• B.   Safeguarding Client Property (Trust Account Scams)
• C.   Communications Regarding a Lawyer’s Services & Advertising
• D.   Referral Fees

Rule 7.1 prohibits misleading communications about a lawyer’s services.  Per Comment [3], “an unsubstantiated comparison of the lawyer’s services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated.”  See, In re PRB Dkt. 2002-093, 2005 VT 2 (Firm’s advertisement that “WE ARE THE EXPERTS IN” a specific practice area violates is an unsubstantiated comparison that violates the former rule.)

Question 5

It’s been quite a past few months for this Illinois lawyer.

Last August, the Illinois Attorney Registration and Discipline Commission filed a disciplinary complaint charging the lawyer with misconduct.  Citing federal criminal charges & convictions related to corruption, extortion, and conspiracy to do both, the complaint alleged that the lawyer had violated the rule that prohibits lawyers from engaging in conduct that involves a serious crime.

As of February 1, it wasn’t yet clear that the lawyer would be free to attend last week’s disciplinary hearing.  Turns out, on February 19, after help from well-known politicians on each side of the aisle, the lawyer got some good news and, as a result, could’ve gone to the hearing if he had wanted to.  He didn’t attend.

Tuesday, a disciplinary panel recommended that the Illinois Supreme Court disbar the lawyer.

As a result of holding a few high-profile non-legal jobs, the lawyer hasn’t engaged in the active practice of law since 1995.  Referring to the fact that the lawyer did not contest the disciplinary case and might not appeal the disbarment recommendation, the lawyer said through a spokesperson:

• “Imagine yourself sitting on a plane and then the pilot announces before takeoff that he hasn’t flown in 25 years. Wouldn’t you want to get off that plane? I don’t want to hurt anybody.”

How noble.

Name the lawyer.

Former Illinois Governor Rod Blagojevich.  The ABA Journal has the story here.