Monday Morning Answers

Monday Morning Honors #236

Michael

Happy Monday.

Friday’s questions are here.  Later today I’ll post the top 3 arguments submitted in response to my challenge to argue whether George is or is not entitled to the reward posted by Newman.  For now, the answers to Friday’s quiz follow today’s Honor Roll.

Honor Roll

  • Karen Allen, Karen Allen Law
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor of Law, University of Illinois Chicago
  • Beth DeBernardi, Administrative Law Judge, Vermont Department of Labor
  • Andrew Delaney, Martin Delaney & Ricci
  • Robert Grundstein
  • Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
  • Deb Kirchwey, Law Office of Deborah Kirchwey
  • John Leddy, McNeil, Leddy & Sheahan
  • Pam Loginsky, Washington State Association of Prosecutors
  • Kevin Lumpkin, Sheehey Furlong & Behm
  • Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
  • Nancy Hunter Rogers, Chamberlin Elementary School
  • Keith Roberts, Darby Kolter & Roberts
  • Jonathan Teller-Elsberg, Sheehey Furlong & Behm
  • Rachel Trow, Legal Assistant, Shoup Evers & Green
  • Jason Warfield, Esq.
  • The Honorable John Valente, Vermont Superior Judge
  • Zachary York, Legal Assistant, Sheehey Furlong & Behm

Answers

Question 1

A few days ago, I presented at the VBA’s Basic Skills seminar.  I shared with the new lawyers my 7Cs of Legal Ethics.  Here’s one of the questions:

Each of the following is related to which “C”?

  • The so called “self-defense” exception that is available to lawyers in certain situations.
  • The distinction between information that is “generally known” and information that is “public record.”
  • Safeguarding client information that is transmitted or stored electronically.
  • So-called “noisy” withdrawal from representing a client.

CONFIDENTIALITY.  See, V.R.Pr.C. 1.6.

Question 2

Attorney called me with an inquiry.  Attorney said “Mike, I represent Green in Green v. Yellow.   Lawyer represents Witness.  Witness is a fact witness, has nothing at stake in the dispute, and, obviously, isn’t a party.  So, I can contact Witness directly without Lawyer’s consent, right?

What was my response?

  • A.  Right.
  • B.  The rule is unclear.
  • C.  It depends. Is Witness testifying for your client or for Yellow?
  • D.  Wrong. The rule applies to any person who is represented in a matter.

 See, V.R.Pr.C. 4.2, Cmt. [2].

 Question 3

 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 the lawyer’s main contact on matters related to the representation.
  • C.  is a minor.
  • 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 4

 Attorney called me with an inquiry.  I listened and responded, “your ethical obligation is to notify the sender that you received it.  Depending on the circumstances, the rules of civil procedure might impose additional duties.”

What did Attorney receive?

  • A.  information that Attorney knows or should know was inadvertently sent.
  • B.  a last-minute change to previously arranged wiring instructions.
  • C.  a subpoena to produce confidential information related to the representation of a current or former client.
  • D.  a request to meet with a prospective client with whom Attorney knows there exists a conflict of interest.

V.R.Pr.C. 4.4(b).

Question 5

Keith Kasper frequently appears on the #fiveforfriday honor roll.  Keith is retiring at the end of the year.  A week ago today, I had the pleasure of stopping by Keith’s retirement party.  This week’s Question 5 honors Keith.

On January 31, 1970, a (still) well-known band played a concert in New Orleans.  Upon returning to their hotel, band members found police executing search warrants in their rooms.  Along with many others, the entire band was arrested on drug charges.

Low on money after posting bail, the band played a bonus show a few nights later to raise money to hire lawyers.  I can only assume that the lawyers performed competently, as all charges eventually were dismissed.

The experience inspired the band to write one of its most iconic songs.

Name the band.

Bonus: name the song.

“Sittin’ and starin’ out of the hotel window
Got a tip they’re gonna kick the door in again
I’d like to get some sleep before I travel
But if you got a warrant, I guess you’re gonna come in

Busted, down on Bourbon Street
Set up, like a bowlin’ pin
Knocked down, it gets to wearin’ thin
They just won’t let you be.”

The Grateful Dead, Truckin’.

truckin

Monday Morning Answers #235

Michael

Happy Labor Day!

Well, so much for Friday’s statement that I was in a college football mood. Nothing ruins a mood as quickly as your favorite team managing 3 paltry points in its opener.  And the game was so boring that I can’t even say that the season was fun while it lasted!

Anyhow, while the calendar continues to indicate that it’s “summer,” I’ve also felt like Labor Day moves us from a summer vibe to one that isn’t so summery.  With that in mind, may today include something other than work to refresh & reinvigorate you as we transition to a new season.

Honor Roll

  • Evan Barquist, Montroll Oettinger & Barquist
  • Beth DeBernardi, Administrative Law Judge, Vermont Department of Labor
  • Jennifer Emens-Butler, Director of Education & Communication, Vermont Bar Association
  • Benjamin Gould, Paul Frank + Collins
  • Robert Grundstein
  • Anthony Iarrapino, Wilschek & Iarrapino
  • Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
  • Deb Kirchwey, Law Office of Deborah Kirchwey
  • John Leddy, McNeil, Leddy & Sheahan
  • Jack McCullough, Vermont Legal Aid, Project Director, Mental Health Law Project
  • 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
  • Thomas Wilkinson, Cozen O’Connor

Answers

Question 1

By rule, how often must a pooled interest-bearing trust account be reconciled?

  • A.  Timely, with “timely” meaning no less than monthly.
  • B.  Regularly.
  • C.  Quarterly.
  • D.  Trick question.  A pooled interest-bearing account is the operating account, not the trust account.

I ask this question often.  My harping is intentional.  Last week’s post Back to (trust account) School highlights the risks of failing to reconcile.

Question 2

I speak and blog often on civility. In fact, I did so this week.  Arguably, a lawyer who manifests extreme incivility while representing a client violates the rule that specifically prohibits using means that:

  • A.  “embarrass or harass a third person.”
  • B.  “have no substantial purpose other than to embarrass, delay, or burden a third person.”
  • C.  “constitute overzealous representation.”
  • D.  “are repugnant to contemporary standards of the profession.”

It’s V.R.Pr.C. 4.4(a).  For one of the more outrageous examples of how not to comply with the rule, check out last week’s post Well now, this answer isn’t boring.

Question 3

Vermont’s rule on withdrawal from representation _____________:

  • A.  includes situations in which withdrawal is permitted, but none in which withdrawal is required.
  • B.  only includes situations in which withdrawal is required.
  • C.  includes some situations in which withdrawal is required, and others in which withdrawal, while not required, is permitted.
  • D.  mandates withdrawal when “the differences between lawyer and client are irreconcilable.”

V.R.Pr.C. 1.16 governs withdrawal. Paragraph (a) sets out the situations in which withdrawal is required.  Paragraph (b) lists those in which withdrawal, while not required, is permitted.

Question 4

Vermont’s rule on the confidentiality of information relating to the representation of the client _______:

  • A.  includes situations in which disclosure is permitted, but none in which disclosure is required.
  • B.  only includes situations in which disclosure is required.
  • C.  includes some situations in which disclosure is required, and others in which disclosure, while not required, is permitted.
  • D.  doesn’t apply when a lawyer is moving to withdraw from the representation.

V.R.Pr.C. 1.6 prohibits disclosure of information relating to the representation of a client.  Paragraph (b) sets out the situations in which disclosure is required.  Paragraph (c) lists those in which disclosure, while not required, is permitted.

Question 5

A lot to choose from this week!  Lately, the law has leaked into several pop culture stories.  Today, I’ll go with music, saving a question about blood-testing for another week. Mainly because the question reminds me of law school and an album that caused great debates between me and my friends.

On August 25, the New York Times ran an article that began with the following sentence:

  • “Spencer Elden was 4 months old when he was photographed by a family friend in 1991 drifting naked in a pool.”

The NYT article goes on to report on how Elden recently sued 15 defendants, including a record label, the estate of a band’s deceased lead singer, the lead singer’s widow, and the still-living members of the band.  According to the NYT, the complaint, which seeks $150,000 from each defendant, alleges:

  • “Defendants knowingly produced, possessed, and advertised commercial child pornography depicting Spencer, and they knowingly received value in exchange for doing so.”

Name the album and the band.

Nevermind.  Nirvana.   The New York Times article is here.   And here’s a picture of my copy.   To me, it’s crazy to think how Dave Grohl has gone on to become such a megastar that some people might not even remember or realize that he was in Nirvana.

IMG_6169

Monday Morning Honors #234

Michael 1 Comment

Welcome to Monday! Happy Bennington Battle Day.

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

Honor Roll

Answers

Question 1

 Whether in response to inquiries, in blog posts, or at CLEs, I often say “the rule is broader than the privilege.”

What’s the topic of the rule?

 I might have phrased this one poorly.  Here, the topic of the rule that is broader than the privilege is “confidentiality.”  Lawyers often indicate to me a belief that only “privileged” information is subject to the confidentiality rule.  That’s incorrect.  Comment [3] to V.R.Pr.C. 1.6 makes clear that the rule’s prohibition is broader than the privilege.  The comment notes that the privilege applies “in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client.”  It goes on to state:

  • “The rule of confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule, for example, applies not only to matters communicated in confidence by the client, but also to all information relating to the representation, whatever its source.  A lawyer may not disclose information except as authorized or required by the Rules of Professional Conduct or other law.”

Question 2

 Client files a disciplinary complaint against Lawyer.  Lawyer calls bar counsel and asks whether it would be okay to refund Client’s fee in exchange for Client’s agreement to withdraw the complaint. Most likely, bar counsel will reply:

  • A.  That’s okay, if Client is given a chance to seek legal advice about the proposal.
  • B.  That’s okay, if Client is given a chance to discuss the proposal with disciplinary counsel.
  • C.  Bad idea, and likely a violation of the Rules of Professional Conduct, even if the complaint is wholly without merit.  For more, see my post What Not To Do When A Disciplinary Complaint Is Filed Against You.
  • D.  It depends on the nature of the allegations in the complaint.

Question 3

 Fill in the blank.

According to a comment to one of the rules, an “action is _________ if the lawyer is unable either to make a good faith argument on the merits of the action or to support the action taken by a good faith argument for an extension of, modification, or reversal of existing law.”

Frivolous.  See, V.R.Pr.C. 3.1, Cmt. [2].

Question 4

 Lawyer calls with an inquiry. In my response, I urge the Lawyer to consider “3-way reconciliation.”  It’s most likely that Lawyer called to discuss:

  • A.  A conflict between an insurance company and the insured.
  • B.  Representing clients in collaborative divorces.
  • C.  E-mail security.
  • D.  Trust account management.

 By rule, trust accounts must be reconciled no less than monthly.  There are 3 critical components to the reconciliation process: the ledger, the bank statement, and the individual client balances.  The ledger and bank statement should reconcile, and then reconcile to the sum of the individual client balances.  For more, review the Professional Responsibility Program’s Trust Accounting Manual.  My post Trust Account Tips includes 10 tips and links to all other trust accounting posts and videos.

 Question 5

 A two-part question, in honor of my Uncle Ed and his service in Herrick’s Rangers.

In an argument made during a jury trial that took place in 1770, a criminal defense attorney said:

  • “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence . . . It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished. But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, ‘whether I do good or whether I do evil is immaterial, for innocence itself is no protection,’ and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.”

Name the lawyer and the event that resulted in the lawyer’s clients being charged.

John Adams defending the British soldiers charged in connection with the Boston Massacre.

adams

 

Monday Morning Honors #233

Michael

Welcome to August!

Friday’s questions are here. The answers follow today’s Honor Roll. But first, a view from Saturday morning’s run: the Thatcher Island Twin Lighthouses off Rockport.

IMG_6074

Honor Roll

Answers

Question 1

Which requires a lawyer to withdraw from representing a client?

  • A.  Continued representation will result in a violation of the Rules of Professional Conduct.
  • B.  The lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.
  • C.  The lawyer is discharged.
  • D.  All the above.

 A, B, C are the 3 situations in which V.R.Pr.C. 1.16(a) mandates withdrawal.

Question 2

 Assuming a conflict can be waived under the applicable rule, each affected client must:

  • A.  give informed consent.
  • B.  give informed consent, confirmed in writing.  V.R.Pr.C. 1.7(b)(4).
  • C.  give informed consent, confirmed in writing within a reasonable time after the lawyer commences the otherwise prohibited representation.
  • D. Don’t assume.  In Vermont, no conflicts can be waived.

Question 3

True or False?

By its plain language, the rule on safekeeping a client’s property only applies to a client’s funds.

FALSE.  V.R.Pr.C. 1.15(a) requires a lawyer to safeguard all property that the lawyer holds in connection with a representation, including funds.

Question 4

 Absent consent, the “no contact” rule prohibits communication on the subject of the representation with a represented _______

  • person. V.R.Pr.C. 4.2(a).
  • party.

 Question 5

 If you skipped the intro, you missed a hint.

 Since 2016, two movie stars have been locked in a custody dispute over their 5 children. As a result of a procedure that is confusing to me, they hired a “private judge” who, in May, granted custody to Movie Star #1.  Movie Star #2 objected and moved to disqualify the “private judge” for failing to disclose a prior business relationship with the lawyers who represent Movie Star #1.

Last week, a California court granted the motion, concluding that the private judge had committed an “ethical breach” that may “cast doubt on the judge’s ability to be impartial.”

Name the movie stars.

 Brad Pitt & Angelina Jolie  Among others, The Hollywood Reporter has the story.

Monday Morning Honors #232

Michael

Welcome to Monday!  What a comeback by the Sox!

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

Honor Roll

  • Penny Benelli, Dakin & Benelli
  • Beth DeBernardi, Administrative Law Judge, Vermont Department of Labor
  • Andrew Delaney, Martin, Delaney & Ricci Law Group
  • Benjamin Gould, Paul Frank + Collins
  • Robert Grundstein
  • Glenn Jarrett, Jarrett & Luitjens
  • Jeanne Kennedy, JB Kennedy Associates, Mother of the Blogger
  • Deb Kirchwey, Law Office of Deborah Kirchwey
  • Elizabeth Kruska, President, Vermont Bar Association
  • John Leddy, McNeil, Leddy & Sheahan
  • Stark Ligon, Ethics Counsel, Arkansas
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Jeffrey Messina, Bergeron, Paradis, Fitzpatrick
  • Jack McCullough, Vermont Legal Aid, Project Director, Mental Health Law Project
  • Jonathan Teller-Elsberg, Sheehey, Furlong & Behm
  • Rachel Trow, Shoup Evers & Green; Four-Year Law Office Study Program
  • The Honorable John Valente, Vermont Superior Judge
  • Zachary York, Legal Administrative Assistant, Sheehey Furlong & Behm

 Answers

 Question 1

“Confidentiality” wouldn’t be a bad answer. However, which of the 7 Cs of Legal Ethics is most specifically governed by rules that include the following words in their titles?

  • Current
  • Former
  • Prospective

CONFLICTS OF INTEREST.  See, V.R.Pr.C. 1.7, V.R.P.C. 1.9, V.R.Pr.C. 1.18

Question 2

Lawyer represents Client.  Lawyer knows that Client expects assistance that is not permitted by the Rules of Professional Conduct or other law.  Thus, by rule, Lawyer’s first step is:

  • A.  to withdraw.
  • B   to inform the tribunal.
  • C.  to consult with the client on any relevant limitation on Lawyer’s conduct.  V.R.Pr.C. 1.4(a)(5).
  • D.  Trick question.  It’s A & B.

Question 3

Lawyer represents Client. Client is distraught about information that will be made public during a trial scheduled to begin next week.  This morning, Client made statements to Lawyer that caused Lawyer reasonably to believe that Client intends to take their own life tonight.  Lawyer wants to disclose Client’s intent to someone who can intervene.  Under Vermont’s rules, Lawyer

  •  A.  must not disclose client’s intent.
  •  B.  must disclose client’s intent.
  •  C.  may disclose client’s intent.  See, V.R.P.C. 1.6(c)(1), Cmt. [10].

Question 4

 Which does the rule treat differently than the others?

  • a client’s personal check in the amount of $2000
  • a certified check
  • a trust account check from a lawyer licensed to practice law in Vermont in the amount of $100,001.00
  • a check issued by an insurance company licensed to do business in Vermont in the amount of $500,001.00.

V.R.Pr.C. 1.15(f) prohibits lawyers from disbursing from trust without collected funds.  Paragraph (g) lists exceptions – instruments against which a lawyer may disburse upon deposit.  B, C, and D are among the exceptions. The exception for personal checks is limited to $1,000 per transaction.

 Question 5 (and bonuses)

In honor of the bar exam being upon us . . .

. . . in 2002, one of Hollywood’s megastars was nominated for the Golden Globe for Best Actor for his work playing a character named Frank Abergnale, Jr.  The movie also starred another megastar as an FBI agent named Carl.

Here’s an exchange from the movie:

  • Carl: “How’d you do it Frank? How did you cheat on the bar exam in Louisiana?
  • Frank: “I didn’t cheat. I studied for two weeks, and I passed.”     

Name the movie and the Hollywood stars who played Frank and Carl.

Catch Me If You Can

Leonardo Dicaprio played Frank Abergnale.

Tom Hanks played Carl Ross.

catch me if you can

Monday Morning Honors #231

Michael

Welcome to last Monday of the first half of the year.

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

Honor Roll

  • Karen Allen, Karen Allen Law
  • Evan Barquist, Montroll, Backus & Oettinger
  • Penny Benelli, Dakin & Benelli
  • Andrew Delaney, Martin, Delaney & Ricci Law Group
  • Glenn Jarrett, Jarrett & Luitjens
  • John Leddy, McNeil, Leddy & Sheahan
  • Mick Leddy, McNeil, Leddy & Sheahan; President, Chittenden County Bar Association
  • Herb Ogden, Esq.
  • Keith Roberts, Darby Kolter & Nordle
  • Jonathan Teller-Elsberg, Sheehey, Furlong & Behm
  • Rachel Trow, Shoup Evers & Green; Four-Year Law Office Study Program
  • The Honorable John Valente, Vermont Superior Judge
  • Jason Warfield, Candidate for Admission to the Vermont Bar
  • Thomas Wilkinson, Cozen O’Connor

Answers

Question 1

By rule, a lawyer shall not use information relating to the representation of a former client to the former client’s disadvantage.  One exception is when the information ______:

  • A.  has become generally known.  V.R.Pr.C. 1.9(c)(1).2
  • B.  is public record.
  • C.  Trick question.  There are 2 exceptions, and they are A & B.
  • D.  Trick question.  There are no exceptions.

Question 2

Consider the following:

  • must be in a writing that is signed by the client.
  • cannot be used for representing a defendant in a criminal case.
  • cannot be based on securing a divorce.

Here, we’re talking about:

  •   A.  Contingent Fees.  V.R.Pr.C. 1.5(c)
  •   B.  Flat Fees
  •  C.  An agreement to limit the scope of a representation
  •  D.  All the Above

 Question 3

There’s a rule that applies to “prospective clients.”   To qualify for the protections the rule affords, the prospective client must:

  1. Consult with the lawyer in good faith.
  2. Pay for the consultation.
  3. A & B.

This is V.R.Pr.C. 1.18.  Comment 2 explains the “good faith” requirement.

Question 4

Which is prohibited by the Rules of Professional Conduct?

  • A.  Accepting cryptocurrency as payment for legal fees.
  • B.  Accepting stock in the client’s company as payment for legal fees.
  • C.  Accepting payment of legal fees via mobile app like PayPal or Venmo.
  • D.  None of the above is a per se violation of the rules.

Question 5

Speaking of Giuliani . . .

. . . 1993, Giuliani had a cameo as himself in Seinfeld.  The episode included a fictionalized version of Giuliani’s campaign for mayor of NYC.  The plot focused on whether a restaurant had falsely marketed a particular food product as “non-fat.”  Due to a mishap caused by Kramer, a sample of Giuliani’s blood revealed high levels of cholesterol.  Giuliani, who had regularly frequented the restaurant, immediately promised voters an investigation into the potential fraud.  The controversy surrounding the falsely labeled food product swept him to victory.

Name the food product:  NON-FAT YOGURT.  Who can forget Elaine suggesting to Lloyd Braun that Mayor Dinkins run on a platform that everyone in NYC should wear nametags??  Yes, LLOYD BRAUN.

Bonus:  in 2021, Giuliani won Razzies for “Worst Supporting Actor” and “Worst Screen Combo” for his appearance in a movie.

Name the movie.  Borat Subsequent Moviefilm (aka “Borat 2”).

Giuliani

Monday Morning Honors #230

Michael

Welcome to Monday.

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

Honor Roll

  • Karen Allen, Karen Allen Law
  • Evan Barquist, Montroll, Backus & Oettinger
  • Penny Benelli, Dakin & Benelli
  • Andrew Delaney, Martin, Delaney & Ricci Law Group
  • Glenn Jarrett, Jarrett & Luitjens
  • John Leddy, McNeil Leddy & Sheahan
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeff Messina, Bergeron, Paradis, Fitzpatrick
  • Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
  • Herb Ogden, Esq.
  • Keith Roberts, Darby Kolter & Nordle
  • Jim Runcie, Ouimette & Runcie
  • The Honorable John Valente, Vermont Superior Judge
  • Zachary York, Legal Assistant, Sheehey Furlong & Behm

 Answers

Questions 1 & 2

Everyone knows I often mention the 7 Cs of Legal Ethics.  Earlier this week, I spoke with student-clinicians at Vermont Law School’s South Royalton Legal Clinic.  Their quiz on the 7 Cs included this question:

  • “Let’s imagine that upon passing the bar you accept a job with a state agency. Your first assignment is familiar: it involves a matter you worked on while in the clinic.  Which 2 Cs of legal ethics jump to mind?”

The scenario is a variation of a scenario that can, and often does, confront any lawyer.  So, Friday readers have the same task: identify the 2 Cs of Legal Ethics implicated by the scenario.

Conflicts of Interest and Confidentiality

Question 3

 Your office employs Non-Lawyer.  In a new matter, Non-Lawyer has a conflict that, if Non-Lawyer were a lawyer, would prohibit Non-Lawyer from accepting the representation.  Which is most accurate?

  • A. Non-Lawyer’s conflict is imputed to all lawyers in the office and the office must decline the representation.
  • B. Non-Lawyer’s conflict is imputed, but only to any lawyer in the office who regularly supervises Non-Lawyer.
  • C. A comment to one of the rules indicates that while Non-Lawyer’s conflict is not imputed to any lawyer in the office, Non-Lawyer should be screened from involvement in the new matter.  See, V.R.Pr.C. 1.10, Cmt. [4]
  • D. Imputation depends on whether the matter is transactional or involves potential litigation.

Question 4

Last week, I presented to members of the Vermont Association for Justice.  My topic was professional responsibility and “The Golden Rule.”   What was the focus of the discussion?

  • The rule that prohibits unreasonable fees.
  • Trust Account Management/Bookkeeping
  • The advertising rules.
  • Closing arguments and the general prohibition on asking jurors to put themselves in the shoes of the victim or a witness.

Question 5

I often urge lawyers not to share any details of client matters, even if doing so doesn’t violate the prohibition on disclosing information relating to the representation of a client.

Reginald Haupt is a lawyer in Georgia.  In 1982, he was suspended from practice for 6 months for commingling.  In 2006, he was convicted of securities fraud and sentenced to 4 years in prison.

In the 1970’s, Haupt represented a client who owned a golf course that was frequented by members of the Chicago mafia.  Last month, Haupt made headlines by divulging to the media that, long ago, his former client told him that members of the Chicago mafia “delivered a package” to the golf course.  According to Haupt, the “package” was the dead body of a famous missing person who, to this day, remains buried on the course.

Whose body?

James Hoffa.    You can read the story at Golf Digest.

hoffa

Monday Morning Honors #229

Michael

Happy Memorial Day.

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

Honor Roll

  • Karen Allen, Karen Allen Law
  • Janis Barquist
  • Penny Benelli, Dakin & Benelli
  • Geoffrey Bok, Esq.
  • Teri Corsones, Executive Director, Vermont Bar Association
  • Andrew Delaney, Martin, Delaney & Ricci Law Group
  • Heather Devine, Costello Valente & Gentry
  • Jennifer Emens-Butler, Director of Communication & Education, Vermont Bar Association
  • Benjamin Gould, Paul Frank + Collins
  • Anthony Iarrapino, Wilschek & Iarappino
  • Glenn Jarrett, Jarrett & Luitjens
  • Deborah Kirchwey, Law Office of Deborah Kirchwey
  • Jeanne Kennedy, JB Kennedy Associates, Blogger’s Mom
  • Elizabeth Kruska, President, Vermont Bar Association
  • John Leddy, McNeil Leddy & Sheahan
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
  • Keith Roberts, Darby Kolter & Nordle
  • Jim Runcie, Ouimette & Runcie
  • Brice Simon, Breton & Simon
  • Jay Spitzen, Esq.
  • Jonathan Teller-Elsberg, Sheehey Furlong & Behm
  • The Honorable John Valente, Vermont Superior Judge
  • Jack Welch, Esq.
  • Jason Warfield, Candidate for Admission to the Vermont Bar

 Answers

Question 1

There’s a rule that prohibits a lawyer from communicating about the subject of the representation with a person that the lawyer knows is represented by another lawyer in the matter.

Which is NOT an exception to the prohibition?

  •   A.  The other lawyer consents to the communication.
  •   B.  The communication is authorized by law.
  •    C. The represented person initiates the communication. V.R.Pr.C. 4.2, Cmt. [3].
  •   D. Trick Question.  A, B, and C are the 3 exceptions to the rule.

Question 2

Attorney called me with an inquiry. I listened, then replied, “yes, but only in an amount reasonably necessary for the purpose.” You may assume that my response accurately (and exactly) quoted the rule.

Given my response, Attorney asked whether the rules permit Attorney to:

  •  A.  review an adverse party’s social media platforms.
  •   B. deposit Attorney’s own money into a client trust account.  V.R.Pr.C. 1.15(b).
  •  C.  engage in ex parte communications with jurors post-trial.
  •  D.  take time off to relax.

Question 3

Communication is one of the 7 Cs of legal ethics.

Several rules require a lawyer to secure a client or former client’s ___________  __________ before acting.   The rules define ___________ __________  as:

  • “An agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”

The quoted language is the definition of what phrase?

INFORMED CONSENT.

Question 4 

This is a tough one.  While self-reporting might be advisable in response to each, which is the only event that, by rule, a Vermont lawyer is required  to self-report?

  • A.  trust account overdrafts.
  • B.  adverse malpractice judgements.
  • C. discipline imposed in another jurisdiction.
  • D.  criminal convictions.

V.R.Pr.C. 8.3 imposes a duty to report “another lawyer.”  So, generally, there’s no duty to self-report violatios of the Rules of Professional Conduct.  However, per Rule 20(A) of Supreme Court Administrative Order 9, a lawyer who is admitted in Vermont and who is disciplined in another jurisdiction must promptly inform disciplinary counsel.

 Question 5

Looking through the list of notable events to have occurred on May 28 in history, two are related to the law, share a connection, and reminded of my mother.

On or about May 28, 1431, this person was captured while wearing men’s clothing.  Having been convicted of wearing men’s clothing earlier in the same year, the person was charged with heresy and with being a witch.  The person was convicted, sentenced to death, and executed on May 30.

Nearly 500 years later, on May 28, 1923, the United States Attorney General announced that it was legal for women to wear trousers in public.  Yes, the United States Attorney General actually had to make such an announcement.

Sidebar: today is my mother’s youngest sister’s birthday.  Startlingly, Aunt Helen Anne’s birthday is not on today’s list of historical events! Happy birthday AHAB!!!

Anyhow, who was executed as a heretic and witch on this weekend in 1431?

Your hint (and reason I was reminded of my mother): my mom’s maiden name is Jeanne Bonneau.

JOAN OF ARC

Joan of Arc

Monday Morning Honors #228

Michael

Happy Monday!

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

Honor Roll

  • Karen Allen, Karen Allen Law
  • Alberto Bernabe, Professor of Law, University of Illinois at Chicago, John Marshall School of Law
  • Andrew Delaney, Martin, Delaney & Ricci Law Group
  • Heather Devine, Costello Valente & Gentry
  • Jennifer Emens-Butler, Vermont Bar Association, Director of Communication & Education
  • Glenn Jarrett, Jarrett & Luitjens
  • Deborah Kirchwey, Law Office of Deborah Kirchwey
  • Jeanne Kennedy, JB Kennedy Associates, Blogger’s Mom
  • John Leddy, McNeil Leddy & Sheahan
  • Kevin Lumpkin, Sheehey, Furlong & Behm
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeff Messina, Bergeron, Paradis, Fitzpatrick
  • Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
  • Herb Ogden, Esq.
  • Keith Roberts, Darby Kolter & Nordle
  • Noah Rosenthal, Fenwick
  • Jay Spitzen, Esq.
  • Jonathan Teller-Elsberg, Sheehey Furlong & Behm
  • The Honorable John Valente, Vermont Superior Judge
  • Eva Vekos, Marsh & Wagner
  • Jason Warfield, Candidate for Admission to the Vermont Bar
  • Zachary York, Sheehey Furlong & Behm

 Answers

Question 1

Identify the duty imposed by a rule that includes these phrases. It’s one of the 7 Cs of Legal Ethics.

  • Explain the matter to the extent reasonably necessary to permit the client to make informed decisions about the representation.
  • Keep the client reasonably informed about the status of the matter.
  • Promptly reply with a client’s reasonable requests for information.

COMMUNICATION.  Each phrase appears in V.R.Pr.C. 1.4.

Question 2

Lawyer contacted me with an inquiry. I listened, then replied “I recommend that you limit your motion to citing to the rule’s specific provision that either requires or permits it.  Then, if the court orders you to disclose more, do so carefully, without disclosing more than necessary to make your point.”

Given my response, it’s most likely that Lawyer called to discuss a motion to:

  • A.  recuse the judge.
  • B.  disqualify opposing counsel.
  • C.  withdraw from representing a client.
  • D.  order a competency evaluation.

This question refers to the dangers of “noisy withdrawal.”  See my blog post Stop Making Noise.

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 the 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.  Malpractice Insurance
  •  B.  Conflicts of Interest. V.R.Pr.C. 6.5
  •  C.  Competence & Diligence
  •  D.  Client Confidences

Question 4

 Many types of “threats” could violate the Vermont Rules of Professional Conduct.  However, there’s only one rule that specifically prohibits lawyers from threatening to do something.

Do what?

V.R.Pr.C. 4.5 makes it professional misconduct to present, participate in presenting, or THREATEN to present criminal charges in order to obtain an advantage in a civil matter.

 Question 5

Bobby Franks was brutally murdered on May 21, 1924.  He was 14 years old.

Two men were charged with the murder.  They were 19 and 18.  Their lawyer concluded that a jury trial would likely result in convictions and death sentences. So, the lawyer convinced the clients to plead guilty and allow him to argue that the judge should spare their lives and sentence them to life in prison.

Then, in a Chicago courthouse in what the media labeled “The Trial of the Century,” the lawyer delivered an argument famously criticizing the death penalty, its use on the young, and the place of vengeance in the justice system.

In the end, the judge sentenced the lawyer’s clients to life in prison.

Interestingly, over a decade earlier, the lawyer was banned from practicing law in California after having been charged with jury tampering and bribery while representing a client charged with bombing the Los Angeles Times building.  The lawyer was acquitted on one count and the jury (a different one) hung on the other.

Name the lawyer.

Bonus: name the lawyer’s clients.

CLARENCE DARROW in the trial of Leopold and Loeb.

darrow

Monday Morning Answers #227

Michael

Happy Monday!

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

Honor Roll

  • Evan Barquist, Montroll, Backus & Oettinger
  • Alberto Bernabe, Professor of Law, University of Illinois at Chicago, John Marshall School of Law
  • Benjamin Gould, Paul Frank + Collins
  • Lon McClintock, Esq.
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeff Messina, Bergeron, Paradis, Fitzpatrick
  • Herb Ogden, Esq.
  • Keith Roberts, Darby Kolter & Nordle
  • Jay Spitzen, Esq.
  • Jonathan Teller-Elsberg, Hershenson, Carter, Scott & McGee
  • Jason Warfield, Esq.
  • Thomas Wilkinson, Cozen O’Connor
  • Zachary York, Sheehey Furlong & Behm

Answers

Question 1

Fill in the blank. (choices below)

By rule, a concurrent conflict of interest exists if there is ___________________ that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

  •  A.  an appearance
  •  B.  the potential
  •  C.  a likelihood
  •   D.  a significant risk.  See, V.R.Pr.C. 1.7(a)(2).

 Question 2

Paralegal works at Firm.  Prospective Client meets with Firm to discuss potential representation.  Paralegal has conflict of interest that would preclude Paralegal from representing Prospective Client if Paralegal were a lawyer.  Which is most accurate?

  • A.  The conflict is imputed to all lawyers who work at Firm.
  • B.  The conflict is imputed, but only to lawyers with whom Paralegal works closely.
  • C.  The conflict is not imputed.
  • D.  The conflict is not imputed, but paralegal should be screened from any involvement in Prospective Client’s matter. See, V.R.Pr.C. 1.10, Cmt. [4].

Question 3

At a CLE, I’m talking about “lateral transfers and whether they were involved personally and substantially.”  What specific area of the rules was I addressing?

  • A.  Trust accounting.  A lateral transfer is a type of ACH transfer.
  • B.  Trust accounting. A lateral transfer is wire fraud. Personal & substantial involvement in effectuating one will expose a lawyer to criminal and disciplinary charges.
  • C.  Conflicts of interest that arise when a lawyer changes firm.
  • D.  Conflicts of interest that arise when a lawyer becomes a judge.

Question 4

Lawyer called me with an inquiry. I responded, “one of the comments to the rule indicates that the rule encompasses anyone who supervises, directs, or regularly consults with you on the matter; who has the authority to obligate your client with respect to the matter; and whose act or omission in connection with the matter may be imputed to your client for the purposes of civil or criminal liability.”

Given my response, Lawyer’s inquiry most likely related to:

  • A.  Lawyer’s duty to report a supervisor’s misconduct.
  • B.  Lawyer’s duty to report a client’s criminal conduct.
  • C.  The scope of Lawyer’s duties to maintain a client’s confidences.
  • D. The constituents of Lawyer’s organizational client with whom opposing counsel cannot communicate absent Lawyer’s consent.  See, V.R.Pr.C. 4.2, Cmt. [7].

Question 5

Constitutional Law.

29 years ago today, Michigan ratified an amendment to the U.S. Constitution. At the time, many believed that Michigan was the 38th state to ratify the amendment, thus making the amendment law.  As it turns out, the amendment officially became part of the Constitution two days earlier, when Alabama ratified it on May 5.

Why the confusion?

Because the amendment was proposed in 1789.  Kentucky ratified it in 1792, but that fact was somehow lost to history until 1996.

Anyhow, it was the most recent amendment to be adopted.

What number is it?  In other words, how many amendments are there to the United States Constitution?

  1. The 27th amendment provides that changes to congressional salaries will not take effect until after the next election of members of the House of Representatives.

Hint: think about a long time focus of the Five for Friday posts.

27th Amendment