Monday Morning Answers #170

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

Honor Roll

• Karen Allen
• Evan Barquist, Montroll, Backus & Oettinger
• Penny Benelli, Dakin & Benelli
• Alberto Bernabe, Professor, John Marshall Law School
• Honorable John M. Conroy, United States Magistrate Judge, District of Vermont
• Erin Gilmore, Ryan Smith & Carbine
• Laura Gorsky
• Bob Grundstein
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Jeanne Kennedy, JB Kennedy Associates, Mother of the Blogger
• Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
• Aileen Lachs, Mickenburg, Dunn, Lachs & Smith
• Pam Loginsky, Washington Association of Prosecuting Attorneys
• Lon McClintock, McClintock Law Offices
• Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
• Hal Miller, First American
• Herb Ogden, Ogden Law Offices
• Thomas Wilkinson, Jr., Cozen O’Connor
• Peter Young, General Counsel, Vermont Rail System

Answers

Question 1

How long must a lawyer keep records of funds that belonged to clients or third persons and that the lawyer held in connection with a representation?

• A.   6 years from the termination of the representation.  V.R.Pr.C. 1.15(a)(1)
• B.   The rules are silent on this issue.

Question 2

The following are exceptions to a particular rule.

• to establish a claim or defense in a controversy between the lawyer and client;
• to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved; or,
• to respond to allegations in any proceeding concerning the lawyer’s representation of the client.

Generally, what does the rule prohibit?

Disclosing information relating to the representation of a client.  The exceptions listed appear in Rule 1.6(c)(3) and, collectively, are often referre to as “the self-defense exception.” 

Question 3

Lawyer represents Client.   Lawyer calls Witness to testify.   Witness completed his testimony and the court recessed for the day.  Preparing for the next day of trial, Lawyer comes to realize that Witness offered material evidence that was false.

Which is most accurate?

• A.   Lawyer must take reasonable remedial measures.  V.R.Pr.C. 3.3(a)(3)
• B.   Lawyer need not correct the record since it was Witness and not Client.
• C.   Lawyer’s duties are different depending on whether the case is criminal or civil.
• D.  Lawyer must withdraw.

Comments 10 and 11 are instructive.

Question 4

Lawyer called me with an inquiry.  I listened, then said, “it’s okay as long as it does not imply a connection with a government agency or public or charitable legal services organization and is not otherwise false or misleading.”

What did Lawyer call to discuss?

• A.    Using a trade name as a firm name.  V.R.Pr.C. 7.5(a)
• B.    Organizing a pro bono clinic staffed by volunteer lawyers.
• C.    Using an undercover investigator.
• D.   Conflicts of interest that arise when moving to & from government practice.

Question 5

As readers know, I’m a huge proponent of attorney well-being and finding interests outside the law.  For me, I love running.

Earlier this week, an assistant public defender had to undergo emergency surgery after suffering a serious injury while taking a selfie as he participated in a famous “running” event.  Here’s what one of his co-workers said to the press:

• “As an office we encourage our employees to pursue outside interests and explore their passions.  For many it’s traveling, and we think such pursuits are critical to the general wellness of our entire . We are relieved the incident was not more serious and we are looking forward to [the lawyer’s] return.”

Name the “running” event that the lawyer was participating in when he was injured.

The Running of the Bulls, which occurs on the final day of Pamplona’s San Fermin Festival. I blogged about the incident here.  The clip from The Breakfast Club summarizes my feelings on running in the event.

Professor Alberto Bernabe, a regular member of the Honor Roll, has actually attended the event. He sent me this picture of the ring.

 

Monday Morning Answers

Happy fiscal new year!

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

Honor Roll

• Karen Allen, Karen Allen Law
• Matt Anderson, Pratt Vreeland Kennelly Martin & White
• Penny Benelli, Dakin & Benelli
• Merrill Bent, Woolmington, Campbell, Bent & Stasny
• Honorable John M. Conroy, United States Magistrate Judge, District of Vermont
• Andrew Delaney, Martin & Delaney Law Group
• Bob Grundstein, Esq.
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Pam Loginsky, Washington Association of Prosecuting Attorneys
• Deb Kirchwey, Esq.
• Aileen Lachs, Mickenburg, Dunn, Lachs & Smith
• Thomas Kester, Assistant General Counsel. Blue Cross & Blue Shield of Vermont
• Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
• Jeff Messina, Bergeron Paradis Fitzpatrick
• Hal Miller, First American
• Caryn Waxman, Barber & Waxman
• Thomas Wilkinson, Jr., Cozen O’Connor
• Zachary York, Vermont Superior Court, Chittenden Civil 

Answers

Question 1

The rule prohibits communicating with a represented __________:

• A.   Party
• B.   Person

This is Rule 4.2.  It applies to “persons and matters,” which is broader than “parties and cases.”

Question 2

True or false?

A lawyer may not accept representation in a matter that involves an area of law in which the lawyer does not possess the requisite level of competence to provide competent representation to the client.

False.  Comments [2] & [4] to Rule 1.1

Question 3

The rules rarely reference specific practice areas.   However, there’s one rule that specifically references both criminal cases & divorces.  It’s the rule on:

• A.   Contingent fees.  Rule 1.5(d)
• B.   Flat fees
• C.   Conflicts with former clients
• D.   Prospective clients

Question 4

Lawyer represents Client in an appeal.   Opposing Counsel filed a brief.  The brief fails to cite to a case in the controlling jurisdiction that Lawyer knows to be directly adverse to Client’s position.  By rule, Lawyer’s reply brief:

• A.   must not disclose the case
• B.   may disclose the case
• C.   may disclose the case if Client consents
• D.   must disclose the case. 

This is Rule 3.3(a)(2).  Failure to disclose violates the duty of candor to the tribunal.

Question 5

The Supreme Court released several newsorthy decisions this week.

48 years ago today, the Court issued an opinion that garnered headlines nationwide.  The opinion overturned the conviction of a famous athlete. The athlete had refused to report for induction to the military after his application for conscientious objector status had been denied.

A unanimous Court (8-0, with Justice Marshall recusing himself) concluded that the athlete’s beliefs were “surely no less religiously based” than those that had been approved in granting other applications for conscientious objector status.

Name the athlete.

Cassius Clay (Muhammad Ali).  The case was Clay v. United States.  The National Constiutiion Center has the story here.

Monday Morning Answers #168

Happy Monday!

Friday’s questions are here. The answers follow today’s Honor Roll. The race went well, and I recommend a day or two in Portland.

Honor Roll

• Karen Allen
• Matthew Anderson, Pratt Vreeland Kennelly & White
• Evan Barquist, Montroll, Backus & Oettinger
• Penny Benelli, Dakin & Benelli
• Alberto Bernabe, Professor, John Marshall Law School
• Jennifer Duxbury, Pratt Vreeland Kennelly Martin & White
• Erin Gilmore, Ryan Smith & Carbine
• Bob Grundstein
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Thomas Kester, Assistant General Counsel. Blue Cross & Blue Shield of Vermont
• Elizabeth Kruska, President-Elect (soon), Vermont Bar Association
• Tom Little, Little & Cicchetti
• Pam Marsh, Marsh & Wagner
• Hal Miller, First American
• Lon McClintock, McClintock Law Offices
• Thomas Wilkinson, Jr., Cozen O’Connor
• Zachary York, Vermont Superior Court, Chittenden Civil 

Answers

Question 1

What is the quoted language more commonly known as?

• “a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibility to another client, a former client or a third person . . .”

A concurrenct conflict of interest . See, Rule 1.7(a)(2).

Question 2

Someone Other Than Client (“SOTC”) is paying Lawyer to represent Client. Which is most accurate?

With respect to information related to the representation of Client, Lawyer

• A.  may disclose to SOTC without Client’s consent;
• B.  must disclose to SOTC even over Client’s objection;
• C.  may not disclose to SOTC without Client’s consent or unless disclosure is otherwise authorized by the rules.  Rule 1.8(f)
• D.  None of the above.

Question 3

Confidences. Competence.  Conflicts.  Candor.  Communication. Civility.

There’s another word that begins with “C” that is a serious violation of the rules. However, the word doesn’t appear in any of the rules, notable in its absence from the trust accounting rules and the rule on safekeeping client property.

What’s the word?

I was looking for “Commingling.”  Several readers ubmitted another answer that I accepted: “Conversion.”

Question 4

Former Client sued Lawyer for malpractice.  Lawyer had represented Former Client in a divorce.  Attorney represented Former Client in the malpractice action.

Attorney proposed a settlement.  Lawyer accepted. The settlement included a provision that Lawyer will not represent clients in divorces for 5 years.

Did either Attorney or Lawyer violate the rules?

• A.  Yes, Lawyer’s malpractice in the divorce is a per se violation.
• B.   Yes, Attorney violated the rules by making the offer.
• C.   Yes, Attorney and Lawyer violated the rules by making and accepting the offer.  Rule 5.6.  This isn’t a common issue, but it came up in an inquiry I received last week.
• D.  A and B.

Question 5

Increase Mather was born on this day in 1639. Apropos of my intro, many of Mather’s beliefs wouldn’t be acceptable in today’s society.

Yet, one likely stands the test of time.  In his work “Cases of Conscience,” Mather referred to the so-called “Blackstone Ratio,” the idea that it’s better that 10 guilty persons go free than 1 innocent person be punished.

What notorious legal event prompted Mather to write Cases of Conscience?

The Salem Witch Trials

 

Monday Morning Answers #167

Hope you enjoyed the weekend!

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

Honor Roll

• Matt Anderson, Pratt Vreeland Kennelly Martin & White
• Evan Barquist, Montroll Backus & Oettinger
• Penny Benelli, Dakin & Benelli
• Alberto Bernabe, Professor, John Marshall Law School
• Bob Grundstein, Esq.
• Thomas Kester, Assistant General Counsel. Blue Cross & Blue Shield of Vermont
• Jim Runcie, Ouimette & Runcie
• Ian Sullivan, Chief Deputy State’s Attorney, Rutland County
• Zachary York, Vermont Superior Court, Chittenden Civil 

Answers

Question 1

There’s only one rule that specifically mentions both judges and jurors.

What does the rule prohibit?

Rule 3.5 prohibits ex parte communications with those judges & jurors.

Question 2

There’s a rule that prohibits a lawyer from charging an unreasonable fee.

True or false?

By rule, if the client agrees to and pays a fee, the fee is presumed reasonable.

False. There is no such presumption in Rule 1.5. Also,   See, In re Sinnott, (“Respondent seeks to justify this fee on the theory that it was based on a valid contract that [the client] freely and knowingly signed.   This argument demonstrates respondent’s failure to comprehend the effect of Vermont Rules of Professional Conduct 1.5(a);  lawyers, unlike some other service professionals, cannot charge unreasonable fees even if they are able to find clients who will pay whatever a lawyer’s contract demands,”)

Question 3

Lawyer represented Client.  Once the representation ended, Client gave Lawyer a gift.  Which is most accurate?

• A.  Lawyer must not accept the gift.
• B.  Lawyer may accept the gift, but only if Lawyer handled the matter pro bono.
• C.  Lawyer may accept the gift, especially if it’s a simple gift such as a holiday present or token of the client’s appreciation.  Rule 1.8, Comment [6].
• D.  Mike, objection.  The premise of this question is pure fantasy.

Question 4

Attorney called me with an inquiry. I listened, then said, “it means:

• ‘isolation of a lawyer from any participation in a matter through timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these rules or other law.’ “

Given my response, what general issue/topic did Attorney likely call to discuss?

Screening a lawyer from participation in a matter.  See, Rule 1.0(k).

Question 5

Speaking of my presentation to the prosecutors, one of the hottest new streaming shows culminates in the criminal trial of Anatoly Dyatlov, Viktor Bryukhanov, and Nikolai Fomin. In real life, the trial took place in 1987.

Where did the defendants work?

The Vladimir I. Lenin Nuclear Power Station – aka “Chernobyl.”  

I recommend the HBO miniseries.

Monday Morning Answers #166

Happy Monday!

Friday’s questions and the story of the life lesson that Mr. Selby taught me in 6th grade are here.  The answers follow today’s Honor Roll.

Honor Roll

• Matt Anderson, Pratt Vreeland Kennelly Martin & White
• Penny Benelli, Dakin & Benelli
• Andrew Delaney, Martin & Delaney Law Group
• Erin Gilmore, Ryan Smith & Carbine
• Bob Grundstein, Esq.
• Mark Heyman, General Counsel, Logic Supply
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Jeanne Kennedy, JB Kennedy Associates, Blogger’s Mom
• Thomas Kester, Assistant General Counsel. Blue Cross & Blue Shield of Vermont
• Lon McClintock, McClintock Law Offices
• Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
• Hal Miller, First American
• Allison Bates Wannop, Special Counsel, Vermont Department of Public Service
• WILO
  • Joslyn Wilschek
  • Anthony Iarrapino
• Thomas Wilkinson, Jr., Cozen O’Connor
• Zachary York, Vermont Superior Court, Chittenden Civil 

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 also, Rule 1.0(m).

Question 2

The following are exceptions to the general prohibition against what?

• to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and client;
• to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved;
• to respond to allegations in any proceeding concerning the lawyer’s representation of the client.

Disclosing information relating to the representation of a client. V.R.Pr.C. 1.6(c)(3).

Question 3

Only 1 is correct.  Which?

By rule, a lawyer shall:

• A.   maintain copies of advertisements for 2 years;
• B.   maintain a copy of the client’s file for 7 years following delivery thereof;
• C.   maintain trust account records for 6 years following the termination of the representation.  V.R.Pr.C. 1.15(a)(1).
• D.    Trick question.  Each statement is correct.

Question 4

There’s a rule that prohibits a lawyer from assisting a client in conduct that the lawyer knows is criminal or fraudulent. A few years ago, the Supreme Court promulgated a Comment to the rule to make it clear that a lawyer does not violate the rule by advising clients on matters that are legal under a set of Vermont’s state laws that apply to a specific product/industry.

What is the product/industry?

Cannabis.  See, V.R.Pr.C. 1.2, Comment [14].

Question 5

Robert H. Jackson was an associate justice on the United States Supreme Court from 1941 to 1954.  Prior to his appoint, he served both as United States Solicitor General and United States Attorney General.  He is the only person ever to have held all 3 offices.

In 1945, Jackson took a leave from the US Supreme Court.  He did so after accepting an appointment from President Truman to serve as a special prosecutor.

Identify the proceeding at which Jackson served as a special prosecutor while on leave from the United States Supreme Court.

The  Nuremberg Trials.

Note: Jackson earned wide praise for his opening statement and closing argument.

Opening Statement – Text

Opening Statement – Video

Closing argument – Text

Closing argument – Video

 

Monday Morning Answers #165

Welcome to June’s first Monday!

Similarly, a special welcome to Tom Kester.  Friday marked Tom’s first quiz entry, with today his first Honor Roll appearance!

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

Honor Roll

• Karen Allen, Esq.
• Matt Anderson, Pratt Vreeland Kennelly Martin & White
• Evan Barquist, Montroll Backus & Oettinger
• Penny Benelli, Dakin & Benelli
• Alberto Bernabe, Professor, John Marshall Law School
• Erin Gilmore, Ryan Smith & Carbine
• Bob Grundstein, Esq.
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Thomas Kester, Assistant General Counsel. Blue Cross & Blue Shield of Vermont
• Lon McClintock, McClintock Law Offices
• Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
• Hal Miller, First American
• Kristen Shamis, Monaghan, Safar, Ducham
• Thomas Wilkinson, Jr., Cozen O’Connor
• Zachary York, Vermont Superior Court, Chittenden Civil 

Answers

Question 1

 Except as permitted or required by other rules, a lawyer shall not use information relating to the representation of a client to the disadvantage of the client:

• A.  True and that’s end of it, there are no exceptions.
• B.   Unless the client gives informed consent.

The language comes directly from Rule 1.8(b). It’s not clear to me what would lead a client to provide such informed consent. Also, special kudos to Penny Benelli.  Penny correctly pointed out that, with former clients, a lawyer shall not use information relating to the representation except as required or permitted by other rules, or, when the information has become generally known.  See, Rule 1.9(c)(1).

Question 2

 True or False.

If one of the Rules of Professional Conduct requires a “writing,” an email complies with the rule.

True.  Rule 1.0(n)

Question 3

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

• “the first thing that the rule requires is that you not state or imply that you’re disinterested.”

Given my response, it’s most likely that Attorney called to discuss the rule on:

• A.  Candor to a tribunal
• B.   Trial publicity
• C.   Dealing with an Unrepresented Person.  
• D.   Pro Bono work

The prohibition against stating or implying disinterest is in Rule 4.3 – “Dealing with the Unrepresented Person.”  The rule goes on to state that if the lawyer knows or reasonably should know:

• (a) that the unrepresented person misunderstands the lawyer’s role, the lawyer shall make reasonable efforts to correct the misunderstanding; and,
• that there is a reasonable possibility that the unrepresented person’s interests conflict with the client’s, the lawyer shall not give legal advice to the unrepresented person, other than the advice to seek counsel.

Question 4

Lawyer represents Plaintiff in a civil case.  Trial is scheduled to being Monday.

Lawyer called me this morning.  Lawyer told me that, yesterday, Lawyer learned that Witness intends to lie for Plaintiff.

Which is most accurate Vermont’s rule?

• A.  Lawyer must explain to Plaintiff the risks of providing false evidence, then abide by Plaintiff’s informed decision whether to call Witness.
• B.   Lawyer may refuse to call Witness if Lawyer reasonably believes that the evidence Witness will offer is false.
• C.   Lawyer may call Witness, but not ask any questions. Witness must testify in the narrative.
• D.   Lawyer must withdraw.

It’s Rule 3.3(c).  “A” is not correct because a lawyer is not required to abide by a client’s instruction to present false evidence.

Question 5

Lawyer called.  Lawyer told me that Lawyer had been asked to get involved in a matter involving Person.   Lawyer explained that Lawyer had previously belonged to a country club owned by Person’s business.  Lawyer said that Lawyer’s family resigned their membership and asked for a refund of the membership deposit.  The club did not refund the deposit, but placed Lawyer’s family on a wait list to be refunded on a “first resigned/first refunded” basis.  As tends to happen no matter who owns these clubs, no refund has yet to be made.  Lawyer asked my thoughts on whether the refund issue posed a conflict that precluded Lawyer’s involvement in the matter.

Then I woke up!

Your task: Identify Lawyer who made an ethics inquiry in my dream.

I need better dreams.

Robert Mueller.  And, in the dream, “Person” is President Donald Trump.  Among others, CNN, Vanity Fair, Golf Digest, and the Washington Examiner reported the story.

Monday Morning Answers

Happy Memorial Day.

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

I stunk up the joint in yesterday’s Vermont City Marathon. As has become all too common for me, the first 18 or 19 miles weren’t an issue.  Then, the body stopped cooperating and I shuffled to the finish.

I spent those final miles and much of the post-race party telling myself, anyone, and everyone that it was my final marathon.  Never again am I putting myself through this!  Yet, I woke up this morning determined to find “a fast one” to run in early September before the deadline to qualify for the 2020 Boston Marathon.

So, depending on how you look at it:  either hope springs eternal, or, insanity is doing the same thing over & over and hoping for a different result.

Honor Roll

• Matt Anderson, Pratt Vreeland Kennelly Martin & White
• Penny Benelli, Dakin & Benelli
• Geoffrey Bok, Esq.
• Beth DeBernardi, Administrative Law Judge, VT Dept. of Labor
• Erin Gilmore, Ryan Smith & Carbine
• Bob Grundstein, Esq.
• Mark Heyman, General Counsel, Logic Supply
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Jeanne Kennedy, JB Kennedy Associates, Blogger’s Mom
• Deb Kirchwey, Esq.
• Elizabeth Kruska, President-Elect (soon), Vermont Bar Association
• John Leddy, McNeil, Leddy, & Sheahan
• Pam Loginsky, Washington Association of Prosecuting Attorneys
• Kevin Lumpkin, Sheehey Furlong & Behm
• Lon McClintock, Esq.
• Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
• Hal Miller, First American
• Herb Ogden, Esq.
• Jay Spitzen, Esq.
• Zachary York, Vermont Superior Court, Chittenden Civil & Criminal

Answers

Question 1

You’re at a CLE.  You are re-reading Jake’s marathon diary because it’s so awesome. Still, your brain is vaguely aware of me saying things like:

• it must be not be unreasonable;
• it must be reduced to a writing that is signed by the client;
• it must state whether expenses will be deducted before or after it’s calculated; and,
• it must be based on the outcome of the matter.  If it’s based on an offer that the client rejects, at least one state’s Supreme Court has held that it’s unethical.

What was I discussing?

A contingent fee agreement.  See, this blog post and  V.R.Pr.C. 1.5(a) & 1.5(c)

Question 2

By rule, a “prospective client” is one who, in good faith, discussed with a lawyer the possibility of retaining the lawyer.  Which is most accurate?

Per the rule, the lawyer shall not represent a client:

• A.   with interests materially adverse to the prospective client.
• B.   with interests materially adverse to the prospective client in the same or a substantially related matter.
• C.  with interests materially adverse to the prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to the prospective client.
• D.  None of the above.  We’ve yet to adopt any version of the ABA Model Rule on prospective clients.

This is Rule 1.18.  We adopted it in 2009 to address the fact that, under our old rules, prospective clients were neither fish nor fowl for purpoes of conflicts of interest.

Question 3

By rule, a lawyer may not settle a claim or potential claim for malpractice with an unrepresented client or former client.

• A.  True.
• B.  True, unless the client gives informed consent.
• C.  True, unless the client gives informed consent, confirmed in writing.
• D.  True, unless the client or former client is advised in writing of the desirability of seeking and is given a reasonably opportunity to seek the advice of independent legal counsel in connection with the matter.  See, Rule 1.8(h)(2)

Question 4

Having made this confession, it pains Me to say that I’m not a big fan of Taylor Swift’s new single.  Still, in her honor, one of these things is not like the other.   Which one?

The rule that requires a lawyer to:

• A.  keep copies of advertisements for 2 years
• B.  keep confidential information relating to the representation of client
• C.  keep trust account records for 6 years
• D.  keep the lawyer’s own funds separate from client funds

We repealed this requirement in 2009.  The others remain in the rules.

Question 5

He’s back!

There’s a lawyer who used to represent a woman whose real name is Stephanie Clifford.  This week, federal prosecutors alleged that the lawyer sent a “fraudulent and unauthorized letter” to Clifford’s literary agent in order to divert approximately $300,000 intended for Ms. Clifford.  Per Manhattan U.S. Attorney Geoffrey Berman:

• “Far from zealously representing his client, [the lawyer] as alleged, instead engaged in outright deception and theft, victimizing rather than advocating for his client.”

You likely know the client by a name other than Stephanie Clifford.

Name the lawyer.  MICHAEL AVENATTI

Bonus: tell me the client’s more well-known name.  STORMY DANIELS

Among many other outlets, CNN has the latest here.

Monday Morning Answers

Welcome to Monday!

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

Honor Roll

• Karen Allen
• Evan Barquist, Montroll Backus & Oettinger
• Penny Benelli, Dakin & Benelli
• Andrew Delaney, Martin & Delaney Law Group
• Jennifer Duxbury, Pratt Vreeland Kennelly Martin & White
• Erin Gilmore, Ryan Smith & Carbine
• Bob Grundstein, Esq.
• Anthony Iarrapino, Wilschek & Iarrapino
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Jeanne Kennedy, JB Kennedy Associates, Blogger’s Mom
• Deb Kirchwey
• Elizabeth Kruska
• Pam Loginsky, Washington Association of Prosecuting Attorneys
• Lon McClintock
• Hal Miller, First American
• Herb Ogden, Esq.
• Thomas Wilkinson, Jr., Cozen O’Connor
• Richard Zitrin, Lecturer in Law, UC Hastings College Of The Law

Answers

Question 1

When a lawyer holds funds in which two or more persons claim interests, a rule specifically requires the lawyer:

• A.   to resolve the dispute;
• B.   to keep the funds separate until the dispute is resolved;
• C.   to promptly distribute all portions that are not in dispute;
• D.   B & C.  V.R.Pr.C. 1.15(e)

Question 2

Speaking of Watergate, if you’re at a CLE and hear me talking about a lawyer’s duty “to go up the ladder,” I’m most likely talking about a lawyer who represents:

• A.  an organization. See, Rule 1.13(b)
• B.  both the insured and an insurance company in a civil case.
• C.  a child.
• D.  a client whose deadline to appeal is about to run, but who has not instructed the lawyer whether to file the appeal.

Question 3

Consider the following:

• a reasonable belief that the lawyer will be able to provide competent & diligent representation to each affected client;
• no assertion of a claim by one client against another represented by the same lawyer;
• informed consent, confirmed in writing.

By rule, each of the 3 is relevant to what general question?

Each of 3 appears in Rule 1.7(b) and are relevant to whether a lawyer may represent a client notwithstanding a concurrent conflict of interest. 

Question 4

Is there a rule that specifcially addresses a lawyer’s ethical duties when serving as an arbitrator, mediator, or in any other such capacity to assist two or more persons who are not clients to resolve a dispute?

• A.   No.
• B.   No.  The Code of Judicial Conduct applies.
• C.   Yes.  There’s a rule that applies to so-called “third-party neutrals.”
• D.   Yes.  There’s a rule that applies to so-called “third-party neutrals” and a comment to the rule indicates that lawyers serving as such may also be subject to other codes of ethics.

It’s Rule 2.4.  Comment [2] mentions other codes of ethics. 

Question 5

I’ve often spoken on lawyer’s duty to provide competent advice related to a client’s preservation of electronically stored information that might have potential evidentiary value.

Recently, one of the world’s most famous athletes was named as a defendant in a wrongful death suit.  The athlete owns a restaurant that is also a defendant.  Central to the case is an allegation that the restaurant over-served an employee who drank at the bar after his shift, drove, and died in a car accident after leaving.

This week, the plaintiff’s lawyers accused the restaurant of destroying video of the decedent drinking at the bar in the hours prior to the fatal crash.

Who is the athlete?

Tiger Woods.    Yahoo! Sports has the story here.

Monday Morning Answers #163

Welcome to Monday!

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

Honor Roll

• Karen Allen, Esq.
• Alberto Bernabe, Professor, John Marshall Law School
• CeCe Conrad, Costello, Valente & Gentry
• Erin Gilmore, Ryan Smith & Carbine
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• John Leddy, McNeil, Leddy, & Sheahan
• Pam Loginsky, Washington Association of Prosecuting Attorneys
• Kevin Lumpkin, Sheehey Furlong & Behm
• Lon McClintock, McClintock Law Offices
• Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
• Hal Miller, First American
• Herb Ogden, Esq.
• Eric Parker, Bauer Gravel & Farnham
• Jim Runcie, Ouimette & Runcie
• Carie Tarte, Senior Paralegal, Maley & Maley

Answers

Question 1

By rule, a lawyer shall not make a false or misleading communication about the lawyer or the lawyer services.   Which of the following violate(s) the rule?

• A.  Material misrepresentations of fact or law.
• B.  Communications that omit a fact necessary to make the statement, considered as a whole, not materially misleading.
• C.  Both A & B.   V.R.Pr.C. 7.1
• D.  Trick question.  There is no such rule.

Question 2

You’re at a CLE.  You hear me say:

• “The privilege is different from the rule.  The rule talks about ‘information relating to the representation.’ A comment to the rule makes it clear that this encompasses more information than is covered by the privilege.”

What was I talking about?  The rule on:

• A. Client confidences.  V.R.Pr.C. 1.6 Comment 3
• B.  A lawyer’s duties upon the receipt of inadvertently produced information.
• C.  Former Clients.
• D.  Prospective Clients.

Question 3

Consider the following:

1. instruments drawn on banks;
2. checks drawn on an IOLTA of a licensed Vermont lawyer or on the IORTA of a licensed Vermont real estate broker;
3. checks issued by the United States or the State of Vermont;
4. personal checks, not to exceed $1,000 in the aggregate per transaction; and,
5. checks drawn on or issued by insurance companies, title insurance companies, or title insurance agencies that are listed in Vermont.

They are:

• A. signs of a potential trust account scam.
• B.  instruments that MUST NOT be deposited into an IOLTA
• C.  instruments that MUST NOT be deposited into an operating account.
• D.  instruments that a lawyer may presume to constitute “collected funds” upon deposit.  V.R.Pr.C. 1.15(g) and this blog post from last week

Question 4

There’s a rule that prohibits extrajudicial statements that will have a substantial likelihood of materially prejudicing an adjudicative proceeding.   Which is most accurate?

• A.  It applies only to the prosecutor in a criminal case.
• B.  It applies to “any lawyer participating in a criminal case.”
• C.  There are no exceptions to the general prohibition.
• D.  It applies to any “lawyer who is participating or has participated in the investigation or litigation of a matter,” whether criminal or not.  V.R.Pr.C. 3.6

Question 5

I’m the chair of the VBA’s Pro Bono Committee.  Also, this evening, I’m speaking at the Vermont Bar Foundation’s Justice Fest.

Cheslie Kryst is an attorney at a firm in North Carolina.  Over the past few years, she provided a significant amount of pro bono work to inmates seeking shorter sentences.  Yes!

Last week, Attorney Kryst made national news.   Why?

• A. She was crowned Miss USA.  Stories from the ABA Journal and CNN
• B. She appeared in an episode of Game of  Thrones.
• C. She became engaged to one of her pro bono clients whose sentence was commuted as a result of her work.
• D.  She defeated James Holzhauer on Jeopardy, ending his stunning reign as champion.

Monday Morning Answers #161

Welcome to Monday!

Friday’s questions are here.  Yes, I completed the Indy Mega Mini Challenge and I “kissed the bricks.”  Today’s answers follow the Honor Roll.

Honor Roll

• Karen Allen, Esq.
• Evan Barquist, Montroll Backus & Oettinger
• Penny Benelli, Dakin & Benelli
• CeCe Conrad, Costello, Valente & Gentry
• Andrew Delaney, Martin & Delaney Law Group
• Cary Dube, Bergeron, Paradis, Fitzpatrick
• Jake Durell, Esq.
• Timothy Fair, Vermont Cannabis Solutions
• Erin Gilmore, Ryan Smith & Carbine
• Bob Grundstein, Esq.
• Katherine Hope, Law Clerk, Vermont Superior Court
• Aileen Lachs, Mickenberg Dunn Lachs & Smith
• John Leddy, McNeil, Leddy, & Sheahan
• Kevin Lumpkin, Sheehey Furlong & Behm
• Lon McClintock, McClintock Law Offices
• Jeff Messina, Bergeron Paradis Fitzpatrick
• Hal Miller, First American
• Jim Runcie, Ouimette & Runcie
• Kristen Shamis, Monaghan, Safar, Ducham
• Zachary York, Vermont Superior Court, Chittenden Civil & Criminal

Answers

Question 1

True or false.

Whenever a subordinate lawyer acts at the direction of a supervisor, the subordinate is relieved of responsibility for a violation of the rules.

FALSE.  Rule 5.2 sets out the duties of a subordinate lawyer.  A subordinate lawyer is relieved of responsibility only if the associate acts in accordance with a supervisor’s reasonable resolution of an arguable professional duty.

Question 2

If revealed in a compliance or trust account audit, which is most likely to concern disciplinary counsel?

• A.  records showing that the lawyer has regularly deposited the lawyer’s own funds into the account to cover service charges and fees, albeit only in amounts necessary to pay those charges and fees.
• B.  records documenting that the lawyer has reconciled the account on a quarterly basis.
• C.  They’ll be dealt with the same, both are violations.
• D.  They’ll be dealt with the same, neither is a violation.

Option A will not concern disciplinary counsel.  Rule 1.15(b) authorizes the conduct.  However, Rule 1.15A(a)(4) requires reconciliation to be no less than monthly.  So, quarterly reconciliation will draw disciplinary counsel’s attention.

Question 3

Which type of conflict is not imputed to other lawyers in the same firm?

• A.  a conflict that arises under Rule 1.7.
• B.  a conflict that arises under Rule 1.9.
• C.  a conflict that arises under 1.7 or 1.9, as long as the conflict is based on a personal interest of the lawyer and does not present a significant risk of materially limiting the representation of the client by the other lawyers in the firm.  V.R.Pr.C. 1.10
• D.  Trick question.  Vermont imputes all conflicts.

Question 4

Which is found in a different rule than the others?  A lawyer shall:

• A.   as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
• B.   keep the client reasonably informed about the status of a matter.
• C.   promptly comply with reasonable requests for information.
• D.   consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct.

The language in A is the duty owed to a client who suffers from a diminished capacity. It is in Rule 1.14.  The other options all appear in Rule 1.4, the rule that describes the duty to communicate with a client.

Question 5

I’m going to Indiana this weekend.  I’m also a former high school basketball coach.

Jury tampering is unethical.  In every state.

Name the actor or actress who starred:

• as a high school basketball coach in a movie set in Indiana; and,
• as a consultant who specialized in tampering with juries in a movie that put the firearms industry on trial.

Gene Hackman was Coach Norman Dale in Hoosiers and jury consultant Rankin Fitch in Runaway Jury.