Monday Morning Answers #246

Happy Monday morning!

Friday’s questions are here, along with my ranking of the Girl Scout cookies.  Suffice to say, readers are not impressed with my placement of Thin Mints.  Answers to the questions follow today’s Honor Roll.

Honor Roll

• Karen Allen, Karen Allen Law
• Brian Amones, Law Offices of Brian Amones
• Matt Anderson, Pratt Vreeland Kennelly Martin & White
• Evan Barquist, Montroll Oettinger & Barquist
• Penny Benelli, Dakin & Benelli
• Alberto Bernabe, Professor, University of Illinois Chicago School of Law
• Amy Butler, Law Office of Amy Butler
• Rich Cassidy, Rich Cassidy Law, Vermont Bar Association Board of Managers
• Matt Daly, Daly and Daly
• Benjamin Gould, Paul Frank + Collins
• Bob Grundstein
• Merle Haskins, Assistant Judge, Caledonia County
• Glenn Jarrett, Jarrett & Luitjens
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Jeanne Bonneau Kennedy, Mother (of the) Blogger
• Elizabeth Kruska, Immediate Past-President, Vermont Bar Association Board of Mangers
• A. J. Larosa, MSK Attorneys
• John Leddy, McNeil Leddy Sheehan
• Jordana Levine,Marsicovetere & Levine, Vermont Bar Association Board of Managers
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Jeffrey Messina, Messina Law
• Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
• Herb Ogden
•  Keith Roberts, Darby, Kolter, Roberts
• Jim Runcie, Ouimette & Runcie
• Jonathan Teller-Elsberg, Sheehey Furlong & Behm
• Honorable John Valente, Vermont Superior Judge
• Thomas Wilkinson, Jr.,Cozen & O’Connor

 ANSWERS

Question 1

 Vermont’s rule on client confidences includes several exceptions to the general duty not to disclose information relating to the representation of a client.  One exception lists the situations in which disclosure of otherwise confidential information is mandatory.  Another lists the situations in which disclosure is permitted, but not required.

There’s another rule that does something similar.  The first paragraph lists the situations in which a lawyer’s act is mandatory.  The second paragraph lists the situations in which the same act is permitted, but not required.  What’s the topic of the rule?

• A. Communicating with a person represented by counsel.
• B. Dealing with an unrepresented person.
• C. Trust Accounting.
• D.  Withdrawing from the representation of a client.  V.R.Pr.C. 1.16.  Paragraph (a) lists the situations in which an attorney must withdraw, paragraph (b) the situations in which withdrawal is permitted.

Question 2

Lawyer called me with an inquiry.  Responding, I noted “but there’s a comment to the rule that states that in negotiations, certain statements are not to be taken as statements of material fact. For instance, what your client’s bottom line might be with respect to settlement.”

What’s the title of the rule I was discussing?

• A. Communication With Person Represented By Counsel.
• B.  Truthfulness In Statements To Others.  V.R.Pr.C. 4.1, see also, Puffery & the Ethics of Settlement Negotiations.
• C.  Respect For Rights Of Third Persons.
• D.  Duties to Prospective Clients.

Question 3

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

• A.  to disburse (or not) as directed by the client.
• B.  to keep the disputed funds in trust 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 4.

Fill in the blank.

Attorney called me with an inquiry.  I listened, then said “nothing in the rules requires a lawyer or law firm to enroll in a ‘positive pay’  service.  Still, you’d be smart to consider it.  It might be used to show that you took reasonable steps  ____________.”

It’s most likely that the remainder of my response was:

• A.  to avoid a conflict of interest.
• B.  to safeguard client funds. See, this post with a tip to protect against check fraud.
• C.  to charge a reasonable fee.
• D.  to remonstrate with a client who provided false information to a court.

Question 5

Ron Torbert graduated from Harvard Law School.  Attorney Torbert spent many years in corporate and construction law before retiring from the practice of law in 2019.

Now, Ron works in a different field.  With the 7 Cs of legal ethics in mind, it’s an understatement to say that Ron is competent in his current line of work, one in which he works as a judge of sorts. In fact, more than 100 million people recently watched Ron perform his official duties.

What does Ron do for work now that he is no longer practicing law?

Ron is now an NFL referee.  Last week, Ron was the head official in Super Bowl LVI.

Monday Answers #245: the Sac-O-Suds!

Happy Monday morning!

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

Honor Roll

• Matt Anderson, Pratt Vreeland Kennelly Martin & White
• Evan Barquist, Montroll Oettinger & Barquist
• Penny Benelli, Dakin & Benelli
• Andrew Delaney, Martin Delaney & Ricci
• Heather Devine, Tarrant Gillies Shems
• Bob Fletcher, Stitzel Page & Fletcher; President, Vermont Bar Association,
• Bob Grundstein
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Deb Kirchwey, Law Office of Deborah Kirchwey
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Jeffrey Messina, Messina Law
• Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
• Herb Ogden, Esq.
• Keith Roberts, Darby Kolter & Roberts
• Brice Simon, Breton & Simon
• Jonathan Teller-Elsberg, Sheehey Furlong & Behm
• Jason Warfield, J.D.

Question 1

 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.

The rule addresses one of the 7 Cs of Legal Ethics.  Which one?

CONFIDENTIALITY.  See, V.R.Pr.C. 1.6.  The listed exceptions are in paragraph (c)(3), the so called “self-defense” exception.

 Question 2

Fill in the blank.

A comment to one of the conflicts rules states that “continued common representation will almost always be inadequate if one client _________________.”

• A.  pays a higher percentage of the lawyer’s fee than the other client.
• B.  is also a former client, but in an unrelated matter.
• C.  is the lawyer’s main contact on matters related to the representation.
• D.  asks the lawyer not to disclose to the other client information relevant to the common representation.  See, V.R.Pr.C. 1.7, Cmt. [31].

 Question 3.

Notwithstanding a conflict of interest, a lawyer may represent a client if

• A. The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client and the representation is not prohibited by law.
• B.  The representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal.
• C.  Each affected client gives informed consent, confirmed in writing.
• D.  A, B, and C.  These are the elements set out in Rule 1.7(b).

Question 4

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

• “There’s no rule that specifically prohibits it. But the fee must be reasonable, you must comply with the rule on business transactions with a client, and you should consider whether it would create a personal interest that would materially limit your ability to provide the client with competent and candid legal advice.”

Given my response, it’s most like that Lawyer called to ask about:

• A.  a contingent fee.
• B.  accepting an ownership interest in a client’s business as payment for legal fees.
• C.  representing a family member.
• D.  marrying a client.

Karen Rubin is a lawyer (and friend of this blog) who writes for The Law for Lawyers Today. Last year, Karen posted Take stock instead of legal fees? Take a hard look and mind the ethics rules.

Question 5

In the introduction, I mentioned something that I saw on Twitter the other day.  Another thing that I saw on Twitter this week was this:

I agree!

Here’s today’s question:

Vinny’s clients were charged with robbing and shooting a store clerk.  However, when they were arrested, they thought it was for accidentally shoplifting.  While at the store, Vinny’s cousin didn’t pay for an item he had put in his pocket because his hands were full.

What was the item?   A can of tuna.

Bonus: what’s the name of the store?  Sac-O-Suds

Monday Answers: #244

Happy February Eve!

From the responses to Friday’s post, I’m comfortable concluding that not many  readers will miss January.  Shout out to the firm that celebrated with Tropical Friday!

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

Honor Roll

• Karen Allen, Karen Allen Law
• Evan Barquist, Montroll Oettinger & Barquist
• Penny Benelli, Dakin & Benelli
• Amy Butler, Law Office of Amy Butler
• Andrew Delaney, Martin Delaney & Ricci
• Bob Grundstein
• Glenn Jarrett, Jarrett & Luitjens
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• John Leddy, McNeil, Leddy & Sheahan
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Jeffrey Messina, Messina Law
• Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
• Herb Ogden
• Keith Roberts, Darby Kolter & Roberts
• Jonathan Teller-Elsberg, Sheehey Furlong & Behm
• The Honorable John Valente, Vermont Superior Judge
• Thomas Wilkinson, Jr., Cozen & O’Connor
• Jason Warfield, J.D.
• Jack Welch, Esq.

Question 1

Michael contacts Attorney for representation.  Michael’s matter is substantially related to a matter in which Attorney formerly represented Patrick.

By rule, which is most relevant to Attorney’s consideration of whether to represent Michael?

• A.  whether Michael’s interests are materially adverse to Patrick’s.  See, V.R.Pr.C. 1.9(a).
• B..whether Attorney remembers anything about Patrick’s matter.
• C..whether Patrick’s matter concluded more than 7 years ago.
• D..the nature of Michael’s matter: litigation or transactional.

 Question 2

 Here’s the first clause of V.R.Pr.C. 4.4(a):

“In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person . . .”

I’ve long argued that as the presence of one of the 7C of Legal Ethics wanes, the well-being of the profession deteriorates.  Which one?  That is, which of the 7Cs, when taken to the opposite extreme, crosses a line and violates the first clause in Rule 4.4(a)?

CIVILITY   (If scores mattered, I’d accept compassion, caring, courtesy . . . etc.)

A reader asked for a reminder.  The 7 Cs are:

• 5 that are rules:  Competence, Communication, Confidentiality, Conflicts, Candor.
• 2 others:  Commingling, Civility

Question 3

Math!

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

Y = the number of years that a rule requires 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

Y = 6.  V.R.Pr.C. 1.15(a)(1).

Question 4

Lawyer called me with an inquiry.  My response included “It seems like there are grounds to do so.  But if you do, make sure to avoid noisy ______________.”

Given my answer, it’s most likely that Lawyer called to discuss:

• A.  withdrawing from representing a client.  See; Stop Making Noise
• B.  reporting opposing counsel to disciplinary counsel.
• C.  a trust account scam
• D.  throwing a Super Bowl party.

Question 5

Earlier this week I posted Espionage, Bribery, and Reinstatement to the Practice of Law. It refers to the story of a lawyer who, last month, sought reinstatement to the D.C. Bar.  The lawyer was disbarred in the 90s after being convicted of espionage.

In 1950, and in a criminal trial that captured the nation’s attention, a lawyer was charged with perjury. The charge was based on an allegation that the lawyer had lied to the House Committee on Un-American Activities by stating that he had not been a communist spy in the 1930s.  Because the statute of limitations had run, the lawyer was not charged with espionage

On one side of the trial, the government’s evidence included the so-called “Pumpkin Papers,” papers that an admitted former spy, who’d hidden them in a pumpkin for years, testified proved that he and the lawyer had committed espionage for the Soviets.

On the other, two sitting justices of the United States Supreme Court testified as character witnesses for the lawyer.

The lawyer was convicted.  As a result, the lawyer was disbarred in Massachusetts.  Then, in 1975, the Supreme Judicial Court of Massachusetts reinstated the lawyer, making him the first Massachusetts lawyer ever to be reinstated after having been disbarred.

Name the lawyer.  ALGER HISS

Bonus: name the member of the House Committee on Un-American Activities who, years later, was disbarred himself.   RICHARD NIXON

 The Alger Hiss trial fascinates me.  History has a good primer here.

Monday Morning Answers #243

Welcome to Monday! Friday’s questions are here.  The answers follow today’s Honor Roll.  Before I get to the answers, a few comments.

First, many thinks to all who weighed-in on the date beyond which it’s no longer appropriate to wish “Happy New Year” to someone you’ve yet to encounter in the calendar year.  Your responses are fodder for a stand-alone column that I hope to post tomorrow!

Also, on Friday, I suggested that today’s answers would be posted via video or podcast, with The First Brother appearing as a guest to offer the non-lawyer perspective.  Well, I failed to check with him prior to making that suggestion and as it turns out, he had other plans this weekend.

With that, I’m off to shovel.  Again.

Honor Roll

• Evan Barquist, Montroll Oettinger & Barquist
• Penny Benelli, Dakin & Benelli
• Alberto Bernabe, Professor of Law, University of Illinois Chicago
• Andrew Delaney, Martin Delaney & Ricci
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Jeanne Bonneau Kennedy, Mother of the Blogger
• Nicole Killoran, Professor, Vermont Law School
• Elizabeth Kruska, Immediate Past-President, Vermont Bar Association Board of Managers
• Cassandra Larae-Perez, Gravel & Shea 
• John Leddy, McNeil, Leddy & Sheahan 
• Pam Loginsky, Washington State Association of Prosecutors 
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid 
• Jeffrey Messina, Messina Law 
• Hal Miller, First American Title Insurance, Hawaii Agency State Counsel 
• Herb Ogden
• Keith Roberts, Darby Kolter & Roberts 
• Jonathan Teller-Elsberg, Sheehey Furlong & Behm 
• Rachel Trow, Legal Assistant, Shoup Evers & Green
• The Honorable John Valente, Vermont Superior Judge 
• Jason Warfield, J.D. 

Answers

Question 1

Imagine a CLE at which I address the distinction between “public record” and “generally known.”

Which 2 of the 7 Cs of Legal Ethics am I most likely to mention?

• A.  Conflicts & Communication.
• B.  Conflicts & Confidentiality.
• C.  Confidentiality & Communication.
• D.  Confidentiality & Candor.

V.R.Pr.C. 1.9 sets out a lawyer’s duties to former clients.  Rule 1.9(c)(1) prohibits a lawyer from using confidential information relating to the representation of a former client “to the disadvantage of the former client.”  One exception is unless “the information has become generally known.”  The law is clear that information that is “public record” is not necessarily “generally known.” 

 Meanwhile, Rule 1.7(a)(2) prohibits a lawyer from representing a client if there is a significant risk that the representation will be materially limited by the lawyer’s duties to, among others, a former client.  Thus, a lawyer has a conflict whenever there is a significant risk that the duty imposed by Rule 1.9(c)(1) will materially limit the representation of another client.   

 As such, when discussing the distinction between “public record” and “generally known,” I’m most likely to refer to conflicts and confidentiality.

Question 2

Office employs Paralegal.  In a new matter, Paralegal has a conflict that would prohibit Paralegal from accepting the representation if Paralegal were a lawyer.  Which is most accurate?

• A.  Paralegal’s conflict is imputed to all lawyers in Office and Office must decline the representation.
• B.  Paralegal’s conflict is imputed, but only to any lawyer at Office who regularly supervises Paralegal.
• C.  A comment to one of the rules indicates that while Paralegal’s conflict is not imputed to any lawyer at Office, Paralegal should be screened from involvement in the new matter.  See, V.R.Pr.C. 1.10, Comment [4].
• D.  Fake question. In Vermont, conflicts are not imputed from one lawyer to others in the same office, and they certainly aren’t imputed from non-lawyers to lawyers.

 Question 3

 Lawyer referred Client to Attorney.  Lawyer and Attorney do not work in the same firm.  Can Attorney share part of the fee with Lawyer?

• A. No.
• B. Yes, if the fee division is in proportion to the work done by each, or, each assumes joint responsibility for the representation.
• C. Yes, if Client agrees, the fee sharing agreement is confirmed in writing, and the total fee is reasonable.
• D.  B & C.  See, V.R.Pr.C. 1.5(e).  See also, Referral Fee? Think Thrice.

Question 4

 Client contacts Lawyer. Client explains that they are represented by Attorney in a matter.  Client wants a second opinion.   Lawyer is not otherwise involved in the matter.

True or False?

Vermont’s rule prohibits Lawyer from communicating with Client about the matter without Attorney’s consent.

False.  See, V.R.Pr.C. 4.2, Comment [4], and Reporter’s Notes – 2009 Amendment.

Question 5

A famous jurist was in the news this week.  The jurist made headlines for donating $5 million to her law school to fund scholarships – full tuition and books – for 10 women.  In addition, upon completing their first year of law school, each scholarship recipient will receive an offer of a summer fellowship with the jurist.

The jurist’s granddaughter, Sarah Rose, is currently a 3L at the same law school.  Sarah also works as a law clerk for her grandmother on their latest streaming venture.

Name the jurist.   Bonus: name the law school.

Judith Sheindlin, aka, “Judge Judy.”  New York Law School.   Among other, ABC News reported the story.

Monday Morning Honors #242

Merry Monday!

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

And speaking of honors, congrats to those who read this post and who knew that a Gestetner is a type of copying machine.  Ah, the sweet smell of the old days!

Honor Roll

• Peter Anderson, Anderson & Associates
• Evan Barquist, Montroll Oettinger & Barquist
• Alberto Bernabe, Professor of Law, University of Illinois Chicago
• Liz Ryan Cole, Professor of Law Emerita, Vermont Law School
• Andrew Delaney, Martin Delaney & Ricci
• Robert Grundstein
• Glenn Jarrett, Jarrett & Luitjens
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Deb Kirchwey, Law Offices of Deborah Kirchwey
• Elizabeth Kruska, Immediate Past-President, Vermont Bar Association Board of Managers
• Cassandra Larae-Perez,Gravel & Shea
• Timothy Martin, Pratt Vreeland Kennelly Martin & Smith
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Jeffrey Messina, Messina Law
• Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
• Dan Richardson, City Attorney, Burlington
• Keith Roberts, Darby Kolter & Roberts
• Robyn Sweet, CORE & PACE Registered Paralegal, Cleary Shahi Aicher
• Jonathan Teller-Elsberg, Sheehey Furlong & Behm
• The Honorable John Valente, Vermont Superior Judge
• Jason Warfield, J.D.

 

Answers

Question 1

 A comment to one of the Rules of Professional Conduct addresses “gifts to lawyers.”  Per the comment, can a lawyer ethically accept a gift from a client?

• A.  No.
• B.  Yes, but only if the client’s matter has ended and the client is a “former client.”
• C.  Yes, if the transaction meets general standards of fairness.  V.R.Pr.C. 1.8, Comment 6.
• D.  It doesn’t matter what the comment says. No client would ever give a gift to a lawyer.

Question 2

 True story: my microphone wasn’t working too well during a CLE I presented via Zoom this morning.  I didn’t discuss this issue during the CLE, but let’s pretend that I did.

Due to a bad mic, attendees would’ve heard the following clipped phrase: “significant risk . . . responsibilities to another client or former client . . . materially limits the representation.”

What concept was I discussing?

Conflicts of Interest.  Specifically, a concurrent conflict of interest as defined by V.R.Pr.C. 1.7(a)(2).

Question 3

Fill in the blank.

“A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly __________.”

• A.  destroy the document.
• B.  segregate the document.
• C.  return the document to the sender.
• D.  notify the sender.   

 The question uses the exact language of V.R.Pr.C. 4.4(b).  Comments 2 and 3 are important.  Also, please review my post Duties Associated with Inadvertent Receipt & Production.

 Question 4

 This one might be too difficult.  But, as a reward to the lawyers who sat through the trust accounting seminar that I did for the VBA’s Bankruptcy Section this morning, here it is:

Lawyer called me with an inquiry.  I replied “they escheat to the state. Check out the State Treasurer’s website for more information.”

Using context clues, what does “they” refer to?

Abandoned trust funds.  Meaning, the lawyer knows who the funds belong to, but cannot locate the person.

Question 5

Family gatherings can make for the best holiday stories!

I’ve referenced many television shows on this blog. Perhaps none more than a 90s sitcom.

There’s an episode in which much of the action takes place at the home of one of the main character’s parents, where everyone has gathered to celebrate a holiday.  In real life, the holiday falls on December 23.

A particular item is integral to celebrating the holiday.  One of the main character’s relatives is a big fan of the item. He likes it because it doesn’t require any decorations, isn’t as distracting as tinsel, and the aluminum has an amazing strength-to-weight ratio.

Question:            Name the holiday and the item.

Bonus:                 I mentioned Christmas cards in the introduction.  Well, in the same episode, the haracter whose family hosted the celebration gave out holiday cards in which he invited recipients to donate to a charity.  Name the charity.

The show is Seinfeld, the holiday is Festivus, and the itme is George’s father’s Festivus Pole.

 George’s fake charity:  The Human Fund (Money for people)

 Congrats to the Honor Roll member who is a verified donor and who sent me this picture:

 

 We are everywhere!

Monday Morning Answers: #241

Merry Monday!

Friday’s questions are here. The video version of today’s answers is here.  It’s about 12 minutes long and includes a bit more explanation than follows below.  Otherwise, the answers follow today’s Honor Roll.  Congrats (and thank you) to all who entered!

Honor Roll

• Karen Allen, Karen Allen Law
• Matthew Anderson, Pratt Vreeland Kennelly Martin & White
• Alberto Bernabe, Professor of Law, University of Illinois Chicago
• Penny Benelli, Dakin & Benelli
• Andrew Delaney, Martin Delaney & Ricci
• Heather Devine, Tarrant, Gillies, Shems
• Robert Grundstein
• Glenn Jarrett, Jarrett & Luitjens
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Elizabeth Kruska, Immediate Past-President, Vermont Bar Association Board of Managers
• John Leddy, McNeil, Leddy & Sheahan
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Jeffrey Messina, Messina Law
• Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
• Keith Roberts, Darby Kolter & Roberts
• Jonathan Teller-Elsberg, Sheehey Furlong & Behm
• The Honorable John Valente, Vermont Superior Judge
• Jason Warfield, J.D.
• Thomas Wilkinson, Cozen O’Connor

Answers

Question 1

 I often refer to the 7 Cs of Legal Ethics.  Professor Alberto Bernabe, a regular member of the Honor Roll, uses a similar construct.  He suggests that students in his Professional Responsibility class remember the “bad grades.”  That is, the Cs, a D, and an F.

Professor Bernabe’s Cs are the same as mine.  The “F” is for “fiduciary.” 

What duty does the “D” stand for?

DILIGENCE.  V.R.Pr.C. 1.3

Question 2

 Prospective Client contacted Lawyer seeking representation in a matter in which Prospective Client’s interests are materially adverse to the interests of one of Lawyer’s former clients.  The new matter is substantially related to the matter in which Lawyer represented Former Client.  However, Lawyer does not remember anything about the representation of Former Client and no longer has access to the file.

Which is most accurate?

• A.  Because the matters are substantially related to each other, Lawyer is presumed to have received confidential information from Former Client.
• B.  Because the matters are substantially related to each other, Former Client will not be required to disclose confidences in order to protect them.
• C.  A & B.  Here’s a video in which I discuss this concept.
• D.  Whether Lawyer can represent Prospective Client necessarily turns on how long ago the representation of Former Client ended.

Question 3

 Lawyer called me with an inquiry. I listened, then replied: “I wouldn’t call without permission. I understand your point about the matter not yet being in litigation. But the rule isn’t limited to matters that are in litigation. It applies to any matter.”

What’s the topic of the rule I referenced?

COMMUNICATION WITH A REPRESENTED PERSON.  V.R.Pr.C. 4.2

Question 4

 What type of conflict is less likely to be imputed to other lawyers in the same firm as the conflicted lawyer?

• A.  a conflict between a former client & current client
• B.  a conflict between current clients
• C.  a conflict arising from a personal interest of the disqualified lawyer.  See, V.R.Pr.C. 1.10(a).
• D.  Trick question.  In VT, all conflicts are imputed to others in the same firm.

Question 5

Some people like question 5 to be about pop culture. Others don’t.  Today it’s a bit of both.

Rule 1.2(d) prohibits a lawyer from assisting or advising a client to commit a crime.  The rule draws no distinction between state & federal crimes or between crimes that the government enforces more or less vigorously than others.  As such, the rule used to cause concern for Vermont lawyers representing clients involved in a particular industry.  So much concern that, several years ago, we amended the rule. 

As amended, a new comment clarifies that a lawyer may assist and advise a client on the scope, validity, and meaning of Vermont law that governs a particular product, as long as the lawyer also advises the client as to the potential consequences of the conduct under federal law and policy.

Question:   What industry or product?

Bonus:  Name the celebrity whose famous holiday song uses the product in a rhyme with the holiday.

Double Bonus:   Name the other product that the celebrity uses to rhyme with both the first product and the holiday in a version of the song.  The second product doesn’t raise concerns about Rule 1.2(d) or assisting/advising a client to commit a crime, but it might have during prohibition.

Cannabis/Marijuana is the product.

 Adam Sandler:  The Hanukkah Song

 Gin & Tonic. (marijuanukkak, gin & tonikkah)

Monday Morning Answers #240

Attention!  New blog feature!  I recorded this video in which I go over the answers to Friday’s quiz in more detail than I do in the post.

Anyhow, good morning and welcome to the week!  While I’m a fan of a long December, musically too, I worry that the remainder will blow by before I know it. Or, worse, January will feel even longer.

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

Honor Roll

• Karen Allen, Karen Allen Law
• Barquist, Montroll Oettinger & Barquist
• Alberto Bernabe, Professor of Law, University of Illinois Chicago
• Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labor
• Andrew Delaney, Martin Delaney & Ricci
• Benjamin Gould, Paul Frank + Collins
• Robert Grundstein
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Deb Kirchwey, Law Office of Deborah Kirchwey
• Aileen Lachs, Esq.
• Kevin Lumpkin, Sheehey, Furlong & Behm
• Pam Loginsky, Pierce County (WA) State’s Attorney’s Office
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Jeffrey Messina, Messina Law
• Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
• Herb Ogden, Esq.
• Dan Richardson, Burlington City Attorney
• Jonathan Teller-Elsberg, Sheehey Furlong & Behm
• The Honorable John Valente, Vermont Superior Judge
• Jason Warfield, J.D.
• Thomas Wilkinson, Cozen O’Connor
• Zachary York, Paralegal, Sheehey Furlong & Behm

Answers

Question 1

I often blog and talk about the 7 Cs of Legal Ethics. 

This “C” does not appear by word in the Rules of Professional Conduct. That said, and as the Vermont Supreme Court has indicated, it’s a serious violation of the trust accounting rules.

COMMINGLING.  One reader responded “conversion.”  100% correct.  So, let it know be known that “commingling” and “conversion” share a seat on the ship that sails the 7Cs of legal ethics.

Question 2

 Fill in the blank.

 Every now and then I’ll receive an inquiry in which a lawyer asks whether there are any pitfalls in allowing someone other than the client to _____________.  Referring to the three-prongs of the applicable rule, I respond:

• Make sure you get your client’s informed consent.
• Don’t let the person interfere with your independent professional judgment or your attorney-client relationship.
• Don’t disclose confidential information to the person without your client’s consent.

Given my response, it’s most likely that lawyer asked whether there are any pitfalls in allowing someone other than the client to _______________:

• A.  Serve as a go-between between the lawyer and the client.
• B.  Make decisions that ordinarily are reserved for the client.
• C.  Sit in for the client at a mediation that is likely to cause the client undue stress.
• D.  Pay the lawyer to represent the client.

 V.R.Pr.C. 1.8(f).

Question 3

 Fill in the blank.  Again.  This time without a menu of choices.

 A comment to one of the rules includes the following statements.  The same word correctly fills in each blank.

• “[An] action is not ____________ even though the lawyer believes that the client’s position ultimately will not prevail. The action is ___________, however, if the lawyer is unable to make a good faith argument on the merits of the action.”

What’s the word?

FRIVOLOUS.  See, V.R.Pr.C. 3.1, Comment [2].

Question 4

 A version of “fill in the blank.”

During a CLE, I say something like this:

• “Comment [3] to the rule addresses whether matters are ‘substantially related.’ It includes a sentence that makes clear that we will not require the _____________ to disclose confidential information to keep the lawyer from using it in the subsequent matter.”

I was discussing the rule that governs:

• A.  Conflicts between current clients.
• B.  A lawyer’s duties to former clients.
• C.  Candor to a Tribunal.
• D.  A rule that is not listed in choices A, B, or C.

V.R.Pr.C. 1.9(a).  The rule applies even if the lawyer does not remember anything from the prior representation.  That is, if the new matter is substantially related to the old, the former client will not be put to the Hobson’s Choice of disclosing confidences to protect them.

Question 5

 In the introduction, I alluded to stress that can come with the holiday season. 

Last month, a judge in Georgia made national news after tweeting a mock order banning a popular holiday item from the judge’s county. I don’t know whether the attention caused the judge any stress.

Anyhow, the mock order referred to the stress and anxiety that can come to parents who forget to move the item, as well as to children who touch the item and thereby deprive it of its holiday magic.

Name the item.

ELF ON THE SHELF.

 Among others, the ABA Journal, the Atlanta Journal Constitution, and Above The Law reported the story.  The mock order is here. 

 

 

Monday Morning Honors #239

Happy Thanksgiving Week!

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

Honor Roll

• Matthew Anderson, Pratt Vreeland Kennelly Martin & White
• Penny Benelli, Dakin & Benelli
• Amy Butler, Amy Butler Law
• Alberto Bernabe, Professor of Law, University of Illinois Chicago
• Andrew Delaney, Martin Delaney & Ricci
• Heather Devine, Tarrant Gillies & Shems
• Benjamin Gould, Paul Frank + Collins
• Robert Grundstein
• Merle Haskins, Assistant Judge
• Deb Kirchwey, Law Office of Deborah Kirchwey
• John Leddy, McNeil, Leddy & Sheahan
• Pam Loginsky, Pierce County (WA) State’s Attorney’s Office
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Jeffrey Messina, Messina Law
• Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
• Herb Ogden, Esq.
• Keith Roberts, Darby Kolter & Roberts
• Brice Simon, Breton & Simon
• Jonathan Teller-Elsberg, Sheehey Furlong & Behm
• Jason Warfield, Esq.
• Zachary York, Paralegal, Sheehey Furlong & Behm

Answers

Question 1

 I often blog and talk about the 7 Cs of Legal Ethics.

Earlier this week, I mentioned that the duty associated with this “C” can create a conflict between a lawyer’s obligations to the court and the client’s interests.   Which C?

To be clear: the answer is not “conflicts.”

CANDOR TO A TRIBUNAL.  See, V.R.Pr.C. 3.3

Question 2

Which phrase appears in a different rule than the others?

• A.  the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client.
• B.  the representation will result in a violation of the rules of professional conduct or other law.
• C.  the lawyer’s physical or mental condition materially impairs lawyer’s ability to represent the client.
• D.  the lawyer is discharged.

A is one of the factors to determine whether a conflict is waivable.  V.R.Pr.C. 1.7(b)(1).  B, C, and D are situations in which a lawyer is required to withdraw.  V.R.Pr.C. 1.16(a).

Question 3

My microphone wasn’t working well during a virtual CLE.  You’re not positive, but you think I used the phrases:

• “contacted you in good faith;”
• “the duty of confidentiality applies nonetheless;” and,
• “the duty of loyalty is relaxed if you didn’t receive information that could be significantly harmful to that person”

As I cut in and out, I was discussing the rule that:

• A. requires a lawyer to report another’s misconduct.
• B applies to prospective clients, clients who meet with but do not retain a lawyer. R.Pr.C. 1.18.
• C. applies when a lawyer provides short-term, limited legal services at a pro bono clinic.
• D.  requires a lawyer to notify the sender that the lawyer received information that appears to have been inadvertently sent or produced.

Question 4

Fill in the blank.

By rule, “a lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses.”  V.R.Pr.C. 1.5(a).

Question 5

Lawyers should be competent speakers.

Until this morning, I’d never heard of Edward Everett.  According to the interwebs, he was considered one of the great orators of his time. Everett was not a lawyer.

Today marks the anniversary of an event at which Everett was the keynote speaker.  His marathon of a speech lasted two hours. After he finished, a lawyer gave a speech that, by comparison to Everett’s, was a relative sprint: it was 272 words and lasted only two minutes.

I don’t know how Everett was reviewed, but a Pennsylvania newspaper wasn’t impressed with the lawyer. In an editorial that described the lawyer’s speech as “silly remarks,” the paper expressed hope “that the veil of oblivion shall be dropped over them and they shall be no more repeated or thought of.”

In 2013, the paper issued a retraction, stating that the critical editorial was written “perhaps under the influence of partisanship, or of strong drink, as was common in the profession at the time.”

Name the lawyer and the speech.

Abraham Lincoln.  The Gettysburg Address.

 

Monday Morning Honors #238

Happy November!

Friday’s questions are here.  The answers follow today’s Honor Roll.  But first, readers chimed in on my Halloween Candy rankings.  Some of the responses:

• Milky Way my friend. And Twix and Butterfinger….
• I am simply flabbergasted that you never even mention Snickers.  I wouldn’t hold it against you too much (some, but not too much) for it failing to make the final 5, but to not even be acknowledged as existing?  That is salt in the wound. Also, Twix.  Frozen Halloween mini size Twix.  A gift from the heavens.
• Candy Corn & Pumpkins 4. Peanut M&M’s. 3. Kit Kat  2. Fifth Avenue Bar 1. Reese’s Peanut Butter Pumpkins
• I can understand missing the 100 Grand Bar, but the Baby Ruth?  Caddyshack fans could never forgive……
• BUT WHAT ABOUT BUTTERFINGER?
• PS: ‘5^th Avenue’ was my go-to candy bar, 4th – 8th grades.
• As for the candy rankings, the only one of yours that would be on my list is Peanut M&M’s, although I will eat a Krackel if necessary. My wife is fond of the $100,000 bar, but they’re not easy to find. Kind of like the Fresca (her favorite soda) of the candy bar world.
• Ah, for a minute I was going to challenge your rankings and go all “Trader Joe’s dark chocolate peanut butter cups!” on you, but then I realized it has to be stuff that you can get in bulk for Halloween.  But really, Mounds didn’t even make the list?!
• How are Twix and Kit-Kat omitted here?
• Hey! I think it was me who brought up 100 Grand [last year] wasn’t it?
• Here’s hoping you are now taking stock of your trick-or-treating haul–and that it contains at least a few 100 Grand bars. 

Honor Roll

• Karen Allen, Karen Allen Law
• Matthew Anderson, Pratt Vreeland Kennelly Martin & White
• Penny Benelli, Dakin & Benelli
• Amy Butler, Amy Butler law
• Alberto Bernabe, Professor of Law, University of Illinois Chicago
• Andrew Delaney, Martin Delaney & Ricci
• Benjamin Gould, Paul Frank + Collins
• Robert Grundstein
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Jeanne Kennedy, JB Kennedy Associates, Blogger’s Mom
• Deb Kirchwey, Law Office of Deborah Kirchwey
• Cassandra Larae-Perez, Gravel & Shea
• John Leddy, McNeil, Leddy & Sheahan
• Pam Loginsky, Pierce County (WA) State’s Attorney’s Office
• Kevin Lumpkin, Sheehey Furlong & Behm
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Jeffrey Messina, Messina Law
• Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
• Keith Roberts, Darby Kolter & Roberts
• Jonathan Teller-Elsberg, Sheehey Furlong & Behm
• The Honorable John Valente, Vermont Superior Judge
• Zachary York, Legal Assistant, Sheehey Furlong & Behm
• Thomas Wilkinson, Cozen O’Connor

ANSWERS

Question 1

 I often blog and talk about the 7 Cs of Legal Ethics. 

During a CLE, I began by mentioning the phrases “informed consent” and “impliedly authorized to carry out the representation.”  Next, I contrasted the section of the rule that requires action with the section that permits, but does not require, a lawyer to act.  Finally, just as I began to address the situations in which the rule’s so-called “self-defense” exception applies, your Wi-Fi cut out, the Zoom feed died, and you missed my explanation of the exception.

What C was the topic of the CLE?

Client Confidences.  V.R.Pr.C. 1.6(a) prohibits a lawyer from disclosing information relating to the representation without a client’s informed consent or unless disclosure is impliedly necessary to carry out the representation.  Rule 1.6(b) requires disclosure in certain situations, whereas Rule 1.6(c) permits it in others.  Finally, Rule 1.6(c)(3) sets out the “self-defense” exceptions.

 

Question 2

Speaking of exceptions, there’s a rule that includes an exception for when a person is seeking a second opinion.  The rule addresses _______:

• A.  conflicts of interest.
• B.  the situations in which a fee agreement must be reduced to writing.
• C.  communicating with a represented person.
• D.  contacting and soliciting prospective clients who a lawyer knows or reasonably should     know need legal services.

V.R.Pr.C. 4.2 prohibits communicating with a represented person on the subject of the representation.  The rule only applies, however, when “representing a client.”  As such, and as made clear by Comment [4], the 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.”

Question 3

 It’s National Celebrate Pro Bono Week.  The pro bono rules include one that creates an exception to the rule(s) that ________:

• A.  prohibits unreasonable fees.
• B.  requires a lawyer to safeguard client property.
• C.  govern conflicts of interest.  V.R.Pr.C. 6.5.
• D.  requires a lawyer to keep a client reasonably updated as to the matter’s status.

Question 4

 There’s a rule that includes an exception for “testimony that relates to the nature and value of legal services rendered in the case.”  The rule’s title is ______”

• A.  Duties to Former Clients.
• B. Lawyer as Witness.  V.R.Pr.C. 3.7.
• C.  Fees.
• D.  Candor to a Tribunal.

Question 5

 Candy was the theme of Question 5 only two weeks ago!  Not today. Still, I’ll keep it somewhat related to Halloween. 

In 1991, a New York court issued the so-called Ghostbusters opinion.  In it, the court allowed a prospective buyer to rescind a contract to buy a house due to the seller’s failure to disclose a material condition.  Rejecting the seller’s “buyer beware” argument, the court stated:

• “Where, as here, the seller not only takes unfair advantage of the buyer’s ignorance but has created and perpetuated a condition about which he is unlikely to even inquire, enforcement of the contract (in whole or in part) is offensive to the court’s sense of equity. Application of the remedy of rescission, within the bounds of the narrow exception to the doctrine of caveat emptor set forth herein, is entirely appropriate to relieve the unwitting purchaser from the consequences of a most unnatural bargain.”

What did the court fault the seller for failing to disclose to the buyer?

That the house was haunted.  In Stambovsky v. Ackley, the court concluded “having reported [the ghosts’] presence in both a national publication… and the local press… defendant is estopped to deny their existence and, as a matter of law, the house is haunted.”

Here’s the house.  

Monday Morning Honors #237

Happy Monday.

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

Honor Roll

• Karen Allen, Karen Allen Law
• Matthew Anderson, Pratt Vreeland Kennelly Martin & White
• Evan Barquist, Montroll Oettinger & Barquist
• Penny Benelli, Dakin & Benelli
• Alberto Bernabe, Professor of Law, University of Illinois Chicago
• Andrew Delaney, Martin Delaney & Ricci
• Benjamin Gould, Paul Frank + Collins
• Robert Grundstein
• Glenn Jarrett, Jarrett & Luitjens
• Deb Kirchwey, Law Office of Deborah Kirchwey
• Jeanne Kennedy, JB Kennedy Associates, Mother of the Blogger
• John Leddy, McNeil, Leddy & Sheahan
• Pam Loginsky, Deputy Prosecutor, Pierce County (WA) Prosecutor’s Office
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Jeffrey Messina, Messina Law
• Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
• Keith Roberts, Darby Kolter & Roberts
• Jonathan Teller-Elsberg, Sheehey Furlong & Behm
• The Honorable John Valente, Vermont Superior Judge
• Jason Warfield, Esq.
• Jack Welch, Esq.
• Thomas Wilkinson, Cozen O’Connor
• Zachary York, Legal Assistant, Sheehey Furlong & Behm

 Answers

Question 1

 I often blog and talk about the 7 Cs of Legal Ethics.

With respect to one of the Cs, a comment indicates that the applicable rule “sets forth the special duties of lawyers as officers of the court to avoid conduct that undermines the integrity of the adjudicative process.”

Which C?

CANDOR TO A TRIBUNAL.  V.R.Pr.C. 3.3, Cmt. [2]

Question 2

Which involves a different rule than the others?

• A.  don’t state or imply that you’re disinterested.
• B.  the new matter is the same as or substantially related to the matter in which you represented the person.
• C.  if the person misunderstands your role, correct the misunderstanding.
• D.  if the person’s interests are likely to conflict with your client’s, don’t give the person any legal advice other than the advice to secure counsel.

 B is the correct answer because it is part of Rule 1.9(a)’s analysis of former client conflicts.  A, C, and D are part of Rule 4.3’s duties when dealing when an unrepresented person.

 Question 3

 There’s a rule that prohibits lawyers from making false or misleading statements about their services.

Can truthful statements that are misleading violate the rule?

• A.  No.  Truth is an absolute defense, no matter how misleading it might be.
• B.  Yes, if they omit a fact that is necessary to make the statement considered as a whole not materially misleading.

 V.R.Pr.C. 4.1.

Question 4

There’s a rule that includes an exception for an “insurance company . . . licensed to do business in the Vermont.”  This week, a lawyer emailed to ask me if I thought a particular company qualified as an “insurance company” and, therefore, that the exception applied.

The rule in question deals with:

• A.  Safekeeping Property/Trust Accounting
• B.  Conflicts of Interest
• C.  Communicating with a represented person
• D.  The Unauthorized Practice of Law

V.R.Pr.C. 1.15(f) prohibits lawyers from disbursing from trust without “collected funds.”  The exception in V.R.Pr.C. 1.15(g)(5) allows lawyers to disburse in reliance upon the deposit of a check issued by an insurance company that is licensed to do business in Vermont.

 Question 5

 In the intro I mentioned candy, intellectual property, and trademark infringement suits.

In late August, a California cookie company filed a trademark suit against a candy maker.  The lawsuit focuses on the shape of one the candy maker’s most famous products.  While most of us know the product as a tiny treat, the largest ever made weighed in at 30,540 pounds. Created in 2007, it was displayed in Pennsylvania to celebrate the candy maker’s 100^th anniversary.

Name the candy maker and the product that is the subject of the trademark suit.

Hershey’s Kisses.   Lancaster Online and Lexology are among the outlets reporting the story.