Monday Morning Answers: #90

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

Honor Roll

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

Answers

Question 1

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

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

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

Question 2

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

  • A.   The advertising rules
  • B.   Interest earned on lawyer trust accounts
  • C.  Conflicts of Interest.   Vermont’s rule on imputed conflicts is V.R.Pr.C. 1.10.
  • D.  Technology & The Duty of Competence

Question 3

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

“If it’s yours, get it out.”

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

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

Question 4

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

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

Question 5

And speaking of lawyers who represent organizations . . .

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

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

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

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

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

MICHAEL CLAYTON

Michael_clayton

 

 

 

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Monday Morning Answers – T. Swift & T. Petty

Now I know what drives traffic – Taylor Swift!

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

Honor Roll

Answers

Question 1 – American Girl

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

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

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

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

Question 2 – Refugee

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

Yesterday, Client said to Lawyer:

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

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

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

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

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

This is a different case than in Question 2.

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

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

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

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

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

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

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

Question 4 – Runnin’ Down A Dream

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

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

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

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

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

Question 5 – Free Fallin’

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

Attorney intends to respond with:

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

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

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

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

swift and petty

Monday Morning Answers: #88

I apologize for not posting this earlier.

Friday’s questions are HERE.  Spoiler alert, the answers follow this week’s Honor Roll.

Apparently, not many of my readers are NASCAR fans.  Kudos to Penny Benelli, Beth DeBernardi, and Erin Gilmore for recognizing that Friday’s picture was of Dale Earnhardt, Jr. and me.  Junior drives the 88.

Junior 88

Honor Roll

  • Laura Anderson, Nursing Supervisor, Mt. Ascutney Hospital & Health Center
  • Matt AndersonPratt Vreeland Kennelly Martin & White
  • Penny Benelli, Dakin & Benelli
  • Alberto BernabeLaw Professor, John Marshall Law School
  • Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labor
  • Erin GilmoreRyan Smith & Carbine
  • Robert Grundstein
  • Aileen LachsMickenberg, Dunn, Lachs & Smith
  • Samantha LednickyDowns Rachlin & Martin
  • Kevin LumpkinSheehey Furlong & Behm
  • Lon McClintockMcClintock Law Office
  • Hal Miller, First American
  • Robyn SweetCore Registered Paralegal, Cleary Shahi & Archer

Answers

Question 1

Prospective Client consults in good faith with Lawyer, with an eye towards retaining Lawyer.  However, Client chooses not to retain Lawyer.  Client notifies Lawyer of the decision.

Per the rules, Lawyer continues to owe Prospective Client a _____________, but in a somewhat relaxed fashion as compared to a former client.

  • A.   Duty of Loyalty
  • B.   Duty to Maintain Client’s Confidences
  • C.   Neither A nor B
  • D.  Both A & B

I don’t think I phrased the question well.  Here’s what I was trying to help people to think about.

Rule 1.18 sets out the duties that a lawyer owes to a “prospective client.”  A prospective client is one who consults with a lawyer in good faith and with an eye towards retaining the lawyer, but who, for whatever reason, does not retain the lawyer.

The duty to maintain the prospective client’s confidences continues to apply and IS NOT relaxed.  Rule 1.18(b) says:

  • “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 Rule 1.6 would require or permit or as Rule 1.9 would permit with respect to information of a former client.”

In other words, I read the duty to maintain the prospective client’s confidences to apply to the same extent & degree as it would apply if the client was a former client.

Further, I read the rule as relaxing, however little, the duty of loyalty as compared to the duty of loyalty owed to a former client.

With respect to a former client, Rule 1.9(a) makes it clear that a lawyer cannot represent someone whose interests are materially adverse to those of a former client in the same or a substantially related matter unless the former client gives informed consent, confirmed in writing.

Rule 1.18 is different.  Specifically, Rule 1.18(c) states that “a lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a 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 that person in the matter, except as provided in paragraph (d).”  (emphasis added).  There’s no such proviso in Rule 1.9, the rule that applies to former clients.

In other words, as I read the rule, it’s not as strict as Rule 1.9 and applies only if the lawyer received information that could be significantly harmful to the prospective client. And, even then, paragraph(d) permits a firm to screen the lawyer who consulted with the prospective client.  Normally, a former-client conflict under Rule 1.9 is imputed to all other lawyers in the firm by Rule 1.10 and, therefore, screening is not allowed. That’s another reason why I consider Rule 1.18 to relax the duty of loyalty.

Question 2

Which must a lawyer keep for 6 years following the termination of a representation?

  • A.   The file
  • B.   Client confidences
  • C.   Complete records of funds held in trust and other property
  • D.  Electronic communications with the client

The rules require the file to be delivered upon the termination of the representation.  Rule 1.16(d).  There is no duty to keep a copy. Of course, it’s a good idea to do so and, odd are, your liabilit insurance requires you to.

 Confidences must be kept forever, unless a client consents to disclosure or the information has become “generally known.”  See, Rule 1.9(c). 

Electronic communications are part of the file and there is no independent rule requiring them to be kept.

Rule 1.15(a)(1) requires lawyers to follow the trust account rules and prohibits commingling.  It states that “[c]omplete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of six years after termination of representation.”

Question 3

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

  • “Client hasn’t paid in 8 months? Assuming nothing crucial is imminent, my position is that you’re permitted to file the motion.  Whether the court grants it is another question.  The question will be whether there will be a material adverse effect on your client.”

What type of motion?

Motion to Withdraw, See V.R.Pr.C 1.16(b)

Question 4

Attorney represents Irving in the civil matter Irving v. James.   Lawyer represents James and has retained Expert Witness.

Whether Attorney can contact Expert Witness without Lawyer’s permission is likely governed by:

  • A.  Rule 4.2 (the no-contact rule)
  • B.  Rule 1.6 (information relating to the representation)
  • C.  The Rules of Civil Procedure
  • D.  The Rules of Evidence

An expert witness is not represented by the lawyer who represents the party or person for whom the witness will be testifying. So, Rule 4.2 does not apply.

However, Rule 26 of the Rules of Civil Procedure limits the ways in which discovery may be obtained from an expert witness.  Contacting that witness informally might not be one of them.  Thus, in the hypo, Rule 26 answers the question. And, remember, a violation of the Rules of Civil Procedure might rise to the level of a violation of Rule 3.4(c) of the Rules of Professional Conduct.

Question 5

When we first met Mike Ross, he hadn’t gone to college or law school, but was earning money by taking (and passing) the LSAT for others.  Then, to earn money to pay for his grandmother’s medical care, Mike agreed to deliver marijuana for a friend.  Somehow he managed not to be arrested in the ensuing sting and, almost impossibly, ended up with a job interview at a law firm.

He was hired.  As a lawyer. Even though Harvey, the partner who interviewed him, knew that Mike had not taken the bar exam or been admitted to practice.

After several years in practice, Mike was charged criminally with fraud & the unauthorized practice of law.  While the jury deliberated, Mike agreed to a plea offered by Anita, the U.S Attorney who was prosecuting him.

After serving a prison stint, Mike passed the bar, with only review by the Character & Fitness Committee standing between him and admission.  Yikes! Guess who bribed her way onto the committee charged with reviewing his application??? Anita!!  She did so not only to keep Mike out, but to try to prove her theory that Harvey (and others) had known all along that Mike wasn’t a lawyer!

Amazingly, Mike was admitted and spent the show’s most recent season as a duly licensed member of the New York State Bar.

Name the tv show.

Mike Ross is a lawyer in Suits.  

Ross Suits

 

 

 

Monday Morning Answers: Constitution Day

Welcome to Monday! Hope you enjoyed the fantastic weekend weather.  As fantastic as the weather? The fact that a quiz on the Constitution results in one of the largest Honor Rolls in recent memory!

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

Honor Roll

  • Matthew Anderson, Pratt Vreeland Kennelly Martin & White
  • Penny Benelli, Dakin & Benelli
  • Andrew Costello, Leeds Brown Law
  • Nicholas Daigle, Community Correctional Officer, Agency of Human Services
  • Andrew Delaney, Martin & Associates
  • Robert Grundstein
  • Gregg Harris, Assistant Attorney General, Buildings & General Services
  • Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
  • Glenn Jarrett, Jarrett & Luitjens
  • John Leddy, McNeil Leddy & Sheehan
  • Jeffrey Messina, Bergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Herb Ogden
  • Robyn Sweet, Paralegal, Cleary, Shahi, Aicher
  • Tech Competence Rules!
  • Emily Tredeau, Prisoners’ Rights Office

Answers

Question 1

The 1st Amendment to the United States Constitution lists 6 things about which “Congress shall make no law.”   1 point for each you can name.

  • establishing religion
  • prohibiting the free exercise of religion
  • abridging the freedom of speech
  • abridging the freedom of the press
  • abridging the right of the people peaceably to assemble
  • abridging the right of the people to petition the government for redress of grievances

Question 2

On May 1, 2017, the ABA marked “Law Day” by celebrating an amendment that it called “a mini-constitution for modern times.”   The amendment is the longest, and per the ABA, “arguably the most important.”  Name the amendment.

The 14th Amendment.

Question 3

Which is different from the others?

  • A.  right to be secure from unreasonable searches & seizures
  • B.  right not to be compelled to self-incriminate in a criminal matter
  • C.  right not to be deprived of life, liberty, or property without due process of law
  • D.  right not to have private property taken for public use without just compensation

Answer “A” is the answer I had in mind when I crafted the question.  The right to be secure from unreasonable searches and seizures is in the 4th Amendment, while the others are in the 5th.  However, some readers pointed out that “C” is also different from the others in that it appears in two amendments: the 5th and the 14th. So, credit for “C” as well.

Question 4

The “Great Compromise” reached at the Constitutional Convention likely saved the Constitution and, by extension, the fledging Union.

What are the two things that the “Great Compromise” called for?

  • proportional representation in the House
  • equal representation in the Senate

Question 5

In 1792, a boy was born in Danville, Vermont.  Later, he attended Burlington College at UVM, but transferred to Dartmouth after the federal government took over UVM during The War of 1812.  After graduating from Dartmouth, he became a lawyer and was admitted to the Pennsylvania Bar.  For many years, he had very successful practice in Gettysburg.

This Vermont-born lawyer eventually was elected to the United States Congress as a “radical republican” from Pennsylvania.  During the Civil War, he served as the chair of the House Ways & Means Committee.  His work as chair was key to the Union’s efforts to fund the war.

A staunch abolitionist, this Vermont-born lawyer played a critical role in the passage of the 13th and 14th Amendments to the United States Constitution.  In response to the House vote to authorize the 13th Amendment, he said:

  • “I will be satisfied if my epitaph shall be written thus, ‘Here lies one who never rose to any eminence, and who only courted the low ambition to have it said that he had striven to ameliorate the condition of the poor, the lowly, the downtrodden of every race and language and color.’ ”

In 2013, Tommy Lee Jones received an Oscar nomination for Best Supporting Actor for his portrayal of this Vermont-born lawyer in the movie Lincoln.

Name the lawyer.

Thaddeus Stevens

Thaddeus Stevens

Monday Morning Answers #85

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

I’d be remiss, though, if I went straight to the answers without recognizing the day.

When I was a kid, I remember my mom telling my brother and me that she’d always remember where she was when she learend the JFK had been assasinated.  Similarly, so many of us will never forget where we were on September 11.

It’d be a disservice to get into my personal memories of the day.  Especially with so many in Texas, Florida, and the Gulf states having a new reason never to forget to the date.

That being said, one thing I’ll always remember about September 11 is that so many so selflessly ran towards danger to help.  And, lately, we’ve seen stories of people doing the same in the wake of Harvey and Irma.

So, maybe one way to remember the day is to help, however we can.  Whether by winning your 3 feet of influence or answering a legal question.   An act of helping is never too small.  Even the smallest act makes a difference.

Honor Roll

Answers

Question 1

By rule, and at a minimum, an attorney’s trust accounting system must have 4 features.  Three of the required features are:

  • a system showing all receipts & disbursements from the account;
  • records showing all receipts & disbursements for each client;
  • records documenting timely notice to clients of all receipts & disbursements.

What’s the 4th?

  • A.  A list of authorized signatories on the account
  • B.  Records documenting timely reconciliation of the account.   V.R.Pr.C. 1.15A(a)(4).  The rule defines “timely” as no less than monthly.
  • C.  Records documenting three-way reconciliation of the account
  • D. An approved credit card processing system

Question 2

Complete this analogy

By rule, Lawyer is to a representation’s means, as Client is to a representation’s ___________.

I guess it would’ve looked like this on the SAT:

Lawyer: Means ::  Client: objectives.  V.R.Pr.C. 1.2(a).  Answers like “ends” or “goals” counted as well.  

Question 3

Lawyer is an associate at Firm. Tomorrow, Lawyer intends to provide short-term limited legal services to clients at a walk-in clinic sponsored by a nonprofit organization.  Neither Lawyer nor her walk-in clients will expect Lawyer or Firm to provide continuing representation to the clients.  By rule, which set of rules will be (somewhat) relaxed, insofar as they relate to Lawyer’s work at the walk-in clinic?   The rules on:

  • A.  Conflicts of Interest.  V.R.Pr.C 6.5.  Conflict-checks aren’t required at the clinic.  But, a lawyer remains prohibited from providing advice to a walk-in with whom the lawyer KNOWS there’s a conflict.
  • B.  Malpractice Insurance
  • C.  Diligence & Competence
  • D.  Client Confidences

Question 4

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

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

  • A. Plaintiff’s counsel did not violate the rules.  I get this phone call about once a month and it seems to be a misunderstood rule  See Comment 7 to Rule 4.2 (“Consent of the organization’s lawyer is not required for communication with a former constitutent.”)
  • B. Plaintiff’s counsel violated the rules.
  • C. Whether Plaintiff’s counsel violated the rules turns on whether the former employee was in “the control group.”
  • D. Whether Plaintiff’s counsel violated the rules depends on whether Plaintiff has filed and served a lawsuit in which Attorney has entered an appearance.

Question 5

Hint: even if you didn’t see this in the news, you can figure this one out by paying close attention to the question.

Earlier this week, a federal appellate court rejected a proposed settlement in a class action lawsuit.  In so doing, the court noted that a “class action that seeks only worthless benefits for the class and yields only fees for class counsel is no better than a racket and should be dismissed out of hand.”

I have no idea whether the class’s attorneys violated Rule 1.5.  However, I do know that the proposed settlement called for:

  • each of the 10 lead class members to receive $500 and a promise that, going forward, the defendant’s restaurants’ buns would be at least 12 inches long; and,
  • the attorney representing the class to receive $525,000.

Name the defendant.  The ABA Journal has the story here.

Subway

Monday Morning Answers – #84

Happy Labor Day!

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

Thanks to all who offered encouragement in Saturday’s race.  It went well and the Clemson game was fantastic.  Watching the Tigers “touch the rock” and run down the hill for the first time since last year’s national championship was electric.   And we didn’t have bad seats:

IMG_2512

Honor Roll

Answers

Question 1

The rules do not require lawyers to have succession plans. However, a comment to a particular rule suggests that it’s a violation for a sole practitioner not to have a plan that designates another lawyer to review the solo’s files and contact the solo’s clients in the event of the solo’s death, disability, or unavailability.  It’s the rule on:

I used this question as a reminder following Hurricane Harvey.  Remember – there are many ways in which a solo might become unavailable.  Seminars often focus on the doom & gloom of death or disability.  Yes, those things happen.  But, if you’re traveling and a weather emergency keeps you from getting home for a few extra days, can your clients make it without you?

Question 2

Valerie and Eddie divorced many years ago.  Eddie is over a year in arrears on court-ordered spousal maintenance payments.

Valerie asks Lawyer to represent her in a motion to enforce the order.   She cannot afford Lawyer’s fee and asks Lawyer to take the case on a contingent fee basis.  Lawyer agrees.  You may assume that Lawyer does not have any conflicts that prohibit Lawyer from representing Valerie.

Which is most accurate?

  • A.   If the contingent fee agreement is reasonable & reduced to writing, it does not violate the rules.  V.R.Pr.C. 1.5(d)(1)(i)
  • B.   Lawyer has violated the rules.  Contingent fees are banned in domestic cases.
  • C.   There will not be a violation unless or until Lawyer attempts to collect a contingent fee from Valerie.
  • D.   There is no violation because it was Valerie, the client, who proposed the contingent fee.

Here’s a very simple way to help provide access to legal services: the rules clearly allow contingent fees in certain post-judgment family cases.  Rule 1.5(d)(1)(i) allows them in cases involving past due maintenance & property division, while subsection d(1)(ii) allows contingent fees, with court approval, when child support is past due.

DO NOT say to me “but Mike, I’ll never make a difference with access by taking a post-judgment spousal maintenance case on a contingent fee.”   You will make a difference to that client.  And, while this is likely best addressed in a blog of its own, my opinion is that, as a profession, we too often let perfect be the enemy of the good.  Instead of forming commission after study commission after blue-ribbon commission, we should strive make a  difference whenever and wherever we can, no matter how small “whenever and wherever” seems.  Like to the one client who you represent on a contingent fee basis in a post-judgment matter where court-ordered spousal maintenance is past due.

Question 3

Lawyer represents Organization.  Lawyer leaves Organization for private practice.

True or false:   Lawyer’s general knowledge of Organization’s practices and procedures ordinarily will preclude Lawyer from representing a party adverse to Organization.

False.  See, V.R.Pr.C. 1.9, Comment [3].  As Professor Alberto Bernabe puts it, “being familiar with the organization’s ‘playbook’ does not typically disqualify the lawyer.”

Question 4

Rule 8.4 prohibits some types of conduct that do not involve the practice of law.  Although it no longer appears in the text of the rule, what’s the 2-word term used to draw the distinction between non law-related conduct that violates the rules and non law-related conduct that does not? Conduct involving ” ________  ___________.”

“Moral Turpitude.”  V.R.Pr.C. 8.4, Comment [2].  A phrase that drove me nuts in the old days!  Professor Bernabe has some great posts on the continued use of the phrase in the rules.

Question 5

This is a fictional scenario.  A prop device, if you will.  Play along.

I received an ethics complaint from a woman complaining how her brother was treated in a criminal case.  The thrust of her complaint was that her brother was framed for the murder of his best friend, Andy, who had just confessed to an affair with her brother’s “cheatin’ wife.”

Referring to her brother’s defense attorney, she wrote that her brother never should’ve “trusted his soul to no backwoods southern lawyer.”  She alleged that the proceeding was “a make believe trial” and that the “judge in this town has got blood stains on his hands.”

Interestingly, her brother WAS framed! In fact, the sister is the one who did it! Not only did she admit to killing Andy, she wrote that her brother’s “cheatin’ wife had never left town and that’s one body that’ll never be found.” It’s the first complaint I’ve ever received in which the complainant confessed to a crime.

Anyhow, Vermont’s Professional Responsibility Program and Judicial Conduct Board don’t have jurisdiction over the defense attorney and judge.

Name the state to which I referred the complainant.

Georgia.  The question refers to the AM smash The Night Light The Lights Went Out in Georgia.  After Liza Minelli and Cher turned it down, one-hit wonder Vicki Lawrence took it to #1.  As a few readers mentioned, once the title-line gets in your head, good luck getting it out.

Finally, Friday’s questions included a reference to Johnny I Hardly Knew Ye by The Irish Rovers.  My apologies to the (several) readers who prefer The Dropkick Murphys’ version.

 

Monday Morning Answers #83

Friday’s questions are HERE.

Spoiler alert: the answers follow today’s Honor Roll in 5, 4, 3, 2, 1……if you don’t know, now you know.

Honor Roll

Answers

Question 1

There’s only ONE thing that the rules require Vermont lawyers to keep for a period of years.  What is it?

  • A.   Copies of advertisements for 2 years after they first run.
  • B.   Client’s file for 7 years following the termination of the representation of Client.
  • C.   Trust account records of funds held for Client for 6 years following the termination of the representation of Client.  Rule 1.15(a)(1).
  • D.   Client’s confidences & secrets for 7 years following the termination of the representation of client.

Notes:  A is incorrect because the rule was repealed years ago.  B is NOT CORRECT.  The file must be delivered upon the termination of the representation.  See, Rule 1.16(d).  It’s a good idea to make a copy for yourself, but the rules do not require you to do so.  Your carrier probably does though.  Finally, D is not correct.  We stopped using the word “secrets” in 1999.  Also, information relating to the representation of a former client is governed by Rule 1.9(c) and is not subject to a 7-lear limit.

Question 2

Attorney called.  Among other questions on a single topic, she asked me whether the rules define “person of limited means.”  What general topic did Attorney call to discuss?

The pro bono rules.  Per rule 6.1, a majority of the 50 hours should go to providing representation to persons of limited means, or, to organizations that primarily address the needs of persons of limited means.  For more, including the definition of “persons of limited means” see this blog post.

Question 3

Speaking of encrypting email, if there is a duty to encrypt, it flows from two duties set out in the rules. One is the duty to maintain the confidentiality of information related to the representation.  What’s the other?  The duty to:

  • A.  Safeguard client property & funds
  • B.  Provide a client with diligent representation
  • C.  Provide a client with competent representation.  See, Rule 1.1.  Also, the link to my blog on encrypting email was included with the questions.  It outlines how the duty of competence dovetails with the duty to maintain confidences to include a duty to act competently to safeguard information relating to the representation of a client.
  • D.  Communicate with a client

 

Question 4

Lawyer represents Client.   Shortly before trial, opposing party discloses Witness. Lawyer determines that he has a conflict that prohibits him from representing Client in a matter in which Witness will testify for Opposing Party.

Lawyer moves to withdraw and discloses the conflict in both his motion and the argument on the motion.  The court denies the motion and Lawyer represents Client at trial.  Witness testifies, Lawyer cross-examines Witness.

True or False: Lawyer violated the Vermont Rules of Professional Conduct by representing Client at trial and cross-examining Witness.

False.  Rule 1.16(c).  (“When ordered to do so by a tribunal, a lawyer shall continue representation nothwithstanding good cause for terminating the representation.)

Question 5

I’m not making this up.

In Vermont, V.R.Pr.C. 3.1 is the equivalent of civil rule 11.  It prohibits lawyers from asserting a position unless there is a non-frivolous basis for doing so.

I’m not making this part up either.

In 2014, a New York lawyer was sued for allegedly helping a client to fraudulently transfer assets.  Let’s call the lawyer “Defendant.”

In 2015,  Defendant filed a motion in which he requested the he and plaintiff either have a duel or “trial by combat.”  When questioned by the media, he responded that “”I have a good-faith belief that this is still part of our state constitution. I want the law to be clear on this issue, and I have every right to ask for this.”

What’s Defendant’s favorite television show?

Game of Thrones.

The lawyer’s request was denied.  In an article on the denial, Staten Island Live has a fascinating quote from Attorney Richard Luthmann:

  • “I believe that the court’s ruling is based upon my adversaries’ unequivocal statement that they would not fight me,” said Luthmann, who’s based in Castleton Corners.  “Under my reading of the law, the other side has forfeited because they have not met the call of battle. They have declared themselves as cowards in the face of my honorable challenge, and I should go to inquest on my claims.”

Trial by Combat

 

 

 

Monday Morning Answers – #82

I loved the responses that I received to Friday’s intro.  Seems like we not only have a few lawyers who used to deliver the Free Press, but a few Steeler fans as well.  Great stuff readers!

Friday’s questions are here.  The answers follow today’s honor roll.

HONOR ROLL

Question 1

Attorney represents Steeler.   Lawyer represents Cowboy.   Attorney receives from Lawyer a document that Attorney knows was inadvertently sent.

With respect to Vermont’s Rules of Professional Conduct (not the rules of civil procedure), Attorney’s obligation is to:

  • A.  Notify Lawyer.   At CLE’s, people seem not to believe me on this one.  The key to the question is what is Attorney’s obligation with respect to the Vermont Rules of Professional Conduct.  Rule 4.4(b) answers this question unambiguously, as does Comment [2]: “Whether the lawyer is required to take additional steps, such as returning the original document, is a matter beyond the scope of these rules, as is the question of whether the privileged status of the document has been waived.”
  • B.  Notify Lawyer and return the document
  • C.  Notify Steeler
  • D.  Notify Steeler and consult with Steeler as to the pros & cons of notifying Lawyer

 

Question 2

We often use the term “IOLTA” to described what the rules call a “pooled interest-bearing trust account.”  That’s right – “IOLTA” does not appear in the rules.  Nevertheless, what does “IOLTA” stand for?

Interest on Lawyer Trust Accounts.  Rule 1.15B governs pooled interest-bearing trust accounts.

Question 3

Former Client isn’t happy with Attorney.   FC insists to Attorney that Attorney committed malpractice. FC is not represented in connection with the potential malpractice claim.

Attorney makes an offer to settle the potential malpractice claim.  FC accepts.

In Vermont,

  • A.   If FC files a disciplinary complaint, Attorney’s offer is an admission that Attorney violated Rule 1.1 by failing to provide competent representation to FC in the original matter;
  • B.   Attorney has a duty to self-report a potential violation of Rule 1.1;
  • C.   A & B
  • D.  The settlement violates the rules unless Attorney advised FC in writing of the desirability of seeking independent legal counsel in connection with the potential malpractice claim and gave FC a reasonable opportunity to do so before agreeing to the settlement.  See, Rule 1.8(h)(2).

Question 4

Fill in the blank.

Lawyer called me with an inquiry.  She told me that her firm is considering whether to hire two attorneys: one who currently works as a government attorney, and one who is an associate at another firm.  Lawyer had several questions related to potential conflicts of interests that her firm would have to deal with if it hired the 2 attorneys.

We talked for a while.  At one point, I said “well, not to get too technical on you, but ____________ means “the isolation of a lawyer from any participation in a matter through timely imposition of procedures within your firm that are reasonably adequate to protect information that the isolated lawyer is obligated to protect.”

What word fills in the blank?  Screening.  Rule 1.0(k).

Question 5

A former super hero took a job at a law firm.  Alas, while not exactly the most super of heros, he’s even less competent as a lawyer.  But he got some great cases, including:

  • defending Scooby Doo & Shaggy on drug charges;
  • representing The Jetsons when they travelled back in time to sue us all for ruining the planet;
  • defending Ricochet Rabbit against charges of wilfull & wanton destruction of property;
  • representing Dr. Quest in the doctor’s legal battle with Race Bannon over custody of Johnny Quest;
  • representing the plastic surgeon sued for botching Droopy’s Botox injections; and,
  • representing Fred Flinstone and Peebles in the federal investigation into their potential mob ties.

Who is our erstwhile, yet often incompetent, super hero turned lawyer?

Harvey Birdman

Birdman.jpg

Monday Morning Answers #81

Nothing like a little Jay-Z to get people to enter the quiz!

Friday’s questions are HERE.  Today, the answers are below the Honor Roll.

Honor Roll

Answers

Question 1

Not all rules were created equal.  If an attorney’s duties under the rules conflict, which duty is usually viewed as trumping all others?

  • A.   Duty of zealous advocacy to clients
  • B.   Duty of fairness to opposing counsel & opposing parties
  • C.   Duty to provide competent, conflict-free representation
  • D.   Duty of candor to the courts; See generally, V.R.Pr.C. 3.4 Per the Reporter’s Notes, “if the interests of client and tribunal conflict with regard to candor, the interest of the tribunal prevail.”  Also, Comment 11 makes it clear that the duty of candor to the court prevails even in the face of causing “grave consequences” to a client by disclosing the client’s false testimony.

Question 2

Competence.  Conflicts.  Candor.  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?

Commingling

Question 3

This comes up in approximately 30% of the inquiries I receive. So, about 330 times per year.

Imagine I’m speaking at CLE.  You hear me say “the idea is that we’re not going to put a client to the ‘Hobson’s Choice’ of having to disclose a confidence in order to protect it.”

What general topic am I discussing?

Conflicts/Withdrawal

It is not uncommon for lawyers who encounter former client conflicts to tell me “but Mike, I don’t remember anything about the prior case.”  That may be true, but it’s not the standard under Rule 1.9(a).  As the Vermont Supreme Court has explained, if the new client’s matter is the same as or substantially related to the former client’s matter, the Court will presume that the former client shared confidential information with the attorney.  Why? 

  • “[t]he purpose of the presumption is to avoid “ ‘putting theformer client to the Hobson’s choice of either having to disclose his privileged information in order to disqualify his former attorney or having to refrain from the disqualification motion altogether.’ ” In re Crepault, 167 Vt. 209, 216-17 (citations omitted).

Question 4

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

  • “Okay.  Since you and Attorney don’t work in the same firm, it is only allowed if  you  do one of two things.  And, since it sounds like Attorney doesn’t want to do any work on Client’s matter, that means that the first option is out. So, your only option is that you each assume joint responsibility for the representation of Client. Otherwise, the rule prohibits it.“

What is “it” that Lawyer called to discuss, and that Lawyer and Attorney propose to do.

Fee Sharing.   See, this post.

Question 5

As another school year approaches, imagine an aspiring 1L heading to law school.  Law student is cruising down the highway with the tunes blaring.  All of sudden, there are blue lights in the rear view. In the ensuing encounter with police, the law student says to the officer:

  • “Well my glove compartment is locked, so is the trunk in the back
    And I know my rights, so you gon’ need a warrant for that.”

Problem 1:  The situation at hand for our erstwhile law student.

Problem 2:  Future issues with the Character & Fitness committee upon applying for admission?

Problem 3: If law student’s statement is based on advice from a lawyer, the lawyer didn’t exactly provide competent & ethical advice.

Your problem: Name the artist & song that was blaring just before law student was pulled over.

Jay-Z, 99 Problems.

Jay Z