Five for Friday #76

No time to waste this week.  Buckle up, because here we go.  Huge, massive, incredibly kind hint in #5 this week.

Rules

  • None.  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Hashtag it – #fiveforfriday

Question 1

Attorney represents an organization in a matter.  Opposing Counsel knows that Attorney represent the organization in the matter.  Without Attorney’s permission, Opposing Counsel discusses the matter with a former employee of the organization.  Which is most accurate?

  • A.  Opposing Counsel violated the rules.
  • B.  Opposing Counsel did not violate the rules.
  • C.  Attorney violated the rules.

Question 2

Lawyer called me with an inquiry.  I listened, then asked:▪

“has the clerk certified that the term of service is complete?”

What did Lawyer ask me if it would be okay to do?

Question 3

Lawyer has actual knowledge that Client is going to commit a fraud.  The fraud is reasonably certain to result in substantial injury to the financial interests or property of another.  Which most accurate states Lawyer’s duty:

A.  Lawyer must disclose Client’s intent.

B.   Lawyer may disclose Clientt’s intent.

C.  Lawyer must disclose Cient’s intent if Client used Lawyer’s services in furtherance of the fraud.

D.  Lawyer must not disclose Client’s intent – disclosure is required only if a client’s crime or fraud will result in the  death of, or substantial physical harm to, someone other than the client.

Question 4

By rule, in contingent fee cases:

  • A.    The fee must be calculated before expenses are deducted
  • B.    The fee must be calculated after expenses are deducted
  • C.    The rule is silent as to whether the fee is to be calculated before or after expenses are deducted
  • D    The fee agreement must specify whether the fee will be calculated before or after expenses are deducted.

Question 5

Barry Zuckerkorn is the Bluth family’s inept & incompetent lawyer on the Emmy Award winning show Arrested Development. Whatever his fee, it was probably unreasonable.

In one episode, Zuckerkorn literally jumped over a shark that was lying dead on a pier.  The scene was scripted in homage to a popular 1970’s-80’s TV show that starred the actor who plays Zuckerkorn.

  • Name the actor and the 1970’s show in which he starred.

the-quiz

 

 

 

Monday Morning Answers & Honor Roll

I guess it’s summer.

Friday’s questions are HERE.  The answers follow today’s Honor Roll. And, speaking of the Honor Roll, there’s a first-time entrant this week: Professor Alberto Bernabe from John Marshall Law School. Professor Bernabe has a great blog on legal ethics.  It’s HERE.

HONOR ROLL

  • Matthew Anderson, Pratt Vreeland Kennelly Martin & White
  • Alberto Bernabe, Professor of Law, John Marshall Law School in Chicago
  • Beth DeBernardi, ALJ, Department of Labor
  • Robert Grundstein
  • Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
  • Patrick Kennedy, First Brother, Dealer.Com
  • Deb Kirchwey, The Law Offices of Deborah Kirchwey,
  • Tom Little, VSAC
  • Hal Miller, First American, Oceanside Division
  • James Runcie, Runcie & Ouimette
  • Allison Wannop, Law Clerk, Vermont Superior Court

Stats:

  • Easiest:   Question 2
  • Hardest:  Question 1

Question 1

The rules prohibit lawyers from asking clients to consent to conflicts that might arise in the future.

  • A.    True
  • B.     False.  See, Rule 1.7, Comment [22]Conflict waivers require informed consent. It can be difficult to provide informed consent to waive a conflict that has yet to arise. Thus, per the Comment, “[t]he effectiveness of such waivers is generally determined by the extent to which the client understands the material risks that the waiver entails.”
  • C.     True, but the rule only applies in criminal cases

Question 2

What do these have in common?

  • Expenses of investigation;
  • Expenses of medial examinations; and
  • Costs of obtaining and presenting evidence

Costs and expenses of litigation that can be advanced.  See, Rule 1.8(e)(1).  I’ve previously blogged that amending this rule might help to increase access to legal services.

Question 3

Which is the most accurate answer?

An attorney shall not “prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless __________”

  • A.    The attorney or recipient is related to the client.  Rule 1.8(c).
  • B.     The client gives informed consent
  • C.     The client gives informed consent, confirmed in writing

Question 4

Rule 1.18 relaxes a lawyer’s duty of loyalty to prospective clients who meet with, but do not retain, the lawyer.  There is another duty that Rule 1.18 does not relax.  That is, a duty that the lawyer owes to the prospective client even though the prospective client chose not retain the lawyer.

What is the duty?

The duty to maintain confidences.  See, Rule 1.18(b). More specifically, the duty not to use or reveal information shared in the consultation except as required or permitted by rules 1.6 and 1.9.

Question 5

Following up on last week’s controversial column, I know that a few of my readers prefer a particular band to both the Beatles and the Stones.

Imagine a lawyer who is on the road, and maybe on the run.  The lawyer says:

“Sitting and staring out 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 gotta warrant I guess you’re gonna come in”

I’m not sure a lawyer satisfies the duty of competence by basing his or her understanding of criminal law/criminal procedure/constitutional law on the teachings of  …….. who?

The Grateful Dead.   Lyrics from the song Truckin’

As I mentioned Friday, I included this question for the several readers who responded to my Beatles v. Stones column by mentioning that they’re fans of the Dead.  I’m not against the Dead, but I never got into them. In fact, my favorite “version” of Truckin’ is the snippet of the song that Tesla mixed into Comin’ Atcha Live during the sneaky good Live at the Trocadero performance that was recorded & released as Five Man Accoustical Jam.

Tesla

Five for Friday #75: Pudge Waves it Fair

Welcome to the 75th #fiveforfriday!

No matter how long I live, I’ll always associate the #75 with one thing.

Fisk

My earliest sports memories are of the 1975 Red Sox.  My earliest specific recollection of a sporting event is of Game 3 of the ’75 ALCS vs Oakland.  My parents made me go to bed way before the game ended, but my Dad woke me up to watch the final out: a grounder to 2nd that Denny Doyle snared & threw to Cecil Cooper to send the Sox to the World Series.

The rest is history, with the elation of Game 6 (above) soon giving way to the first soul-crushing (and tear-inducing) sporting defeat of my life: Yaz lofting a harmless fly ball to center, and Cincinnati winning the Series in 7 games.

Now, for my math-fan readers, “75” has a cool attribute.  If you sum the digits, then add numbers Fibonacci-style, you eventually get back to . . . 75!

  • 7+5 = 12
  • 5+12 =17
  • 12+17=29
  • 17+29=46
  • 29+46=75

I’m pretty sure that Da Vinci was the first to prove this, then hid the solution in his drawing of the Vitruvian Man.  And that’s why the Sox were cursed in 75.  Or something like that.

Onto the quiz.

Rules

  • None.  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Hashtag it – #fiveforfriday

Question 1

The rules prohibit lawyers from asking clients to consent to conflicts that might arise in the future.

  • A.    True
  • B.     False
  • C.     True, but the rule only applies in criminal cases

Question 2

What do these have in common?

  • Expenses of investigation;
  • Expenses of medial examinations; and
  • Costs of obtaining and presenting evidence

Question 3

Which is the most accurate answer?

An attorney shall not “prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless __________”

  • A.    The attorney or recipient is related to the client.
  • B.     The client gives informed consent
  • C.     The client gives informed consent, confirmed in writing

Question 4

Rule 1.18 relaxes a lawyer’s duty of loyalty to prospective clients who meet with, but do not retain, the lawyer.  There is another duty that Rule 1.18 does not relax.  That is, a duty that the lawyer owes to the prospective client even though the prospective client chose not retain the lawyer.

What is the duty?

Question 5

Following up on last week’s controversial column, I know that a few of my readers prefer a particular band to both the Beatles and the Stones.

Imagine a lawyer who is on the road, and maybe on the run.  The lawyer says:

“Sitting and staring out 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 gotta warrant I guess you’re gonna come in”

I’m not sure a lawyer satisfies the duty of competence by basing his or her understanding of criminal law/criminal procedure/constitutional law on the teachings of  …….. who?

 

the-quiz

Smalls & Solos: Tech Competence Can Help Keep the Train on the Tracks

Do any of these sound familiar?

  • your office’s e-mail server is AOL
  • you use folders within Microsoft Word as your case/document management system
  • you print out hard copies of “important” e-mails & documents
  • your “tech consultant” is someone a friend recommended
  • you haven’t learned much about tech because it’s not “lawyering” and keeps you from focusing on helping clients to solve their problems

If your answer is “yes, Mike, at least one of those sounds familiar,” I’m not here to say that you’ve violated the rules.  I am, however, here to say that I have a story for you to read.

The story is a cautionary tale entitled How Technology Illiteracy Can Cost Solos Big Money.  It’s by Carolyn Elefant and appears on the Above The Law blog.

Don’t have a lot of time?  Ok.  At least check out the part where Carolyn writes “I want to commend every solo and small firm lawyer to read this train wreck of a decision closely to learn how not to run a law office.”  The decision was issued last month by the United States District Court for the Eastern District of New York. If you don’t have time to read the decision, Carolyn’s blog summarizes it nicely.

Take the time to read the blog and the decision.  The money (and law license) that you save might be yours.

Train Tracks

 

Monday Morning Answers: Beatles v. Stones

Mystery solved.

  • Mystery:  what can I blog about that will cause lawyers to respond?
  • Solution:  Assert that the Stones are better than the Beatles.

The responses were fantastic!  My non-scientific analysis:

  • 1/3 flat out disagreed with me
  • 1/3 disagreed, but argued that there’s room to like both bands
  • 1/3 agreed

Even within the final group, the responses revealed an affinity for Their Satanic Majesties Request that took me by surprise. Also, within my readership, there’s a healthy undercurrent of support for the The Kinks as being as important to the British Invasion as both the Beatles and Stones.

In any event, I love when lawyers argue passionately about an issue that has nothing to dow with the law. Indeed, one of the goals behind this blog is to demonstrate that we’re much more than the stereotype of our profession.  Readers:  you responses to Friday’s blog proved beyond a reasonable doubt that we are.  Thank you!

Stay tuned – I’m toying with the idea of a turning Friday’s debate into a moot court argument that I’ll use as a fundraiser.  And I already have an excellent idea of who will represent each side!

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

Honor Roll

Answers

  • Easiest:  Question 1
  • Most difficult: Question 5
  • Most difficult in ethics:  Question 2

There’s a rule that imposes “special responsibilities” upon:

  • A.  Prosecutors; Rule 3.8
  • B.  Judges
  • C.  Juvenile defenders
  • D.  Real estate lawyers who also sell title insurance

Question 2

The “self-defense” exception to Rule 1.6 is often discussed with respect to:

  • A.  Disclosing a client’s intent to commit a crime
  • B.  Disclosing a client’s past commission of a crime
  • C.  Responding to a client’s negative online review; See this blog post.
  • D.  Withdrawing from a matter to keep from violating the ethics rules

Question 3

Which is most accurate?

  • A.  A fee violates the prohibition on unreasonable fees only if it is collected
  • B.  Vermont’s rules require lawyers to self-report violations of the rules
  • C.  A comment to the rule on conflicts of interest with a former client suggests that the rule does not apply if 10 years have passed since the prior representation.
  • D.  A lawyer must deliver the file upon the termination of the representation.  Rule 1.16(d).

Question 4

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

“If you reasonably believe Client is telling you the truth, you can disclose it to the police or his family or someone who can help.  You don’t have to disclose, but you aren’t prohibited from disclosing.”

What did Attorney learn from or about Client that prompted Attorney to call me?

Attorney learned that Client intended to commit an act that is likely to result in death or substantial bodily harm to Client.  See, Rule 1.6(c)(1); Comment [10].

Question 5

With a hidden shout out to regular reader, here’s this week’s question 5:

This week, I’ve had the opportunity to speak with two fantastic groups of lawyers: the state’s prosecutors and the state’s public defenders.  You can’t swing a dead cat in Vermont’s criminal courts without hitting a dedicated, competent public service attorney.  To each group, thank you for all that you do.

Prosecutors and defense attorneys often ask me about Rule 3.8 and a prosecutor’s Brady obligations.  As most of you know, Brady v. Maryland involved a prosecutor’s decision to withhold potentially exculpatory information.

What specific item of evidentiary value to the defense did the Brady prosecutor fail to disclose?

A co-defendant’s written statement that the co-defendant acted alone.

Pepper

 

Shared Ethics: Secretary of State Condos Visits PRP

The Professional Responsibility Program (PRP) held its Annual Meeting on May 31, 2017. The meeting took place at Burlington’s Hotel Vermont.  Chief Justice Paul Reiber joined the Board, members of the PRP’s hearing & assistance panels, PRP staff, and several invited guests for a day of seminars and discussion.

The afternoon kicked off with a visit from Secretary of State Jim Condos and Deputy Secretary of State Chris Winters.  Secretary Condos outlined his vision of a Statewide Ethics Commission.

For those of you who aren’t familiar with the idea of an ethics commission, VTDigger has done some great reporting on the issue.  Digger has:

Secretary Condos and Deputy Secretary Winters took several questions from PRP members, many of which focused on the similarities between the PRP and the SoS’s Office of Professional Regulation.  All in all, a great way to share thoughts on shared missions.

Secretary Condos and Deputy Secretary Winters – thank you for taking the time to visit the PRP!

PRP Looks at Nonlawyer Ownership

The Professional Responsibility Program (PRP) held its Annual Meeting on May 31, 2017.  The meeting took place at Burlington’s Hotel Vermont.  Chief Justice Paul Reiber joined the Board, members of the PRP’s hearing & assistance panels, PRP staff, and several invited guests for a day of seminars and discussion.

The morning’s second seminar focused on whether to amend Rule 5.4 to allow lawyers   to practice in firms in which nonlawyers hold ownership interests or managerial roles.

Vermont Law School’s Oliver Goodenough provided a fascinating talk on law & technology.  Among other things, Professor Goodenough expanded on ideas he originally shared in blogs he authored for the Huffington Post: Innovation in Legal Practice: Beyond the Current Model of Professionalism, and, Legal Technology 3.0.

Changing Rule 5.4 to allow Alternative Business Structures has long intrigued me. My first post on the topic is here: Is it Time for Nonlawyer Ownership? An Introduction to ABS.

Professor Goodenough’s engaging & instructive talk opened many more eyes to the potential benefits of ABS.  I anticipate that the Board will study nonlawyer ownership.  I will continue to raise the issue, as well as the idea of entity regulation.

Professor Goodenough – thank you so much for sharing your time, thoughts, and expertise with the members of the PRP!

Monday Morning Answers: Memorial Day

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
  • Jennifer Blomback, VATC
  • Beth DeBernardi, ALJ, Department of Labor
  • Robert Grundstein, Esq.
  • Anthony Iarrapino, Esq.
  • Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
  • Patrick Kennedy, First Brother, Dealer.Com
  • Aileen Lachs, Mickenberg, Dunn, Lachs, Smith
  • Kevin Lumpkin, Sheehey Furlong & Behm
  • Hal Miller, Esq.
  • Lon McClintock, Esq.
  • Herb Ogden, Esq.
  • Jim Runcie, Esq.

Stats

  • Hardest:  Question 5. Of the ethics, Question 1.
  • Easiest:  Question 4
  • Hidden Pop Culture Reference: Question 3.  Emmit & Ray Stussy are the twin brothers played by Ewan McGregor in this season of Fargo.  I highly recommend it. V.M. Varga has quickly become one of my favorite characters in TV history.

Answers

Question 1

Firm represents Client.  The matter settles and Firm receives an insurance check for $50,000.  Firm notifies Cient and deposits the check into trust.

Firm presents client with an accounting that indicates that Client owes Firm $15,000. Firm is prepared to disburse the remaining $35,000 to Client.

Client contends that she only owes Firm $10,000.

Assume that nobody other than Firm & Client have interests in the settlement.  Which is most accurate?

  • A.   Firm must keep the entire $50,000 in trust until the dispute is resolved.
  • B.   Firm must disburse $40,000 to Client and keep $10,000 separate until the dispute is resolved.
  • C.   Firm must disburse $35,000 to Client and keep $15,000 separate until the dispute is resolved.
  • D.  Firm must disburse $35,000 to Client, disburse $10,000 to Firm, and keep $5,000 separate until the dispute is resolved.  See, Rule 1.15.  

Section (e) requires a lawyer to disburse funds that are not in dispute.  Section (a) prohibits commingling.  So, there is $45,000 that isn’t in dispute: Client’s $35,000 and the $10,000 Client agrees is owed to Firm.  Those portions must be disbursed, with the disputed $5000 remaining separate until the dispute is resolved.

Question 2

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

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

Given my statement, it’s most likely that Attorney called to discuss:

  • A.  A subpoena to testify about a former client’s matter
  • B.  A prospective client who met with, but did not retain Attorney
  • C.  A request from an unrepresented person to meet with Attorney to provide information related to a client’s matter.   See, Rule 4.3.
  • D.  Serving on a jury

Question 3

Lawyer represents Emmit in a dispute with a government agency.  Lawyer learns that the agency interprets a regulation in a particular way.

Lawyer also represents Ray.  Ray is involved in a dispute with the same government agency, one that involves the same regulation.

Which is most accurate?

  • A.   Absent Emmit’s consent, Lawyer may not use the agency’s interpretation to help Ray and, therefore, must withdraw from Ray’s matter.
  • B.   Unless the agency’s interpretation is a matter of public record, Lawyer may not use the interpretation to assist Ray and, therefore, must withdraw from Ray’s matter.
  • C.  If the two matters are the same or substantially related, Lawyer may use anything that he learns while representing Emmit to help Ray.
  • D.  If it would not disadvantage Emmit to do so, Lawyer may use the agency’s interpretation of the regulation to help Ray.  See, Rule 1.8, Comment [5].

Question 4

Of the following, one has not traditionally been treated as a rules violation, viewed instead as a mistake that does not rise to the level of an ethics violation.  In my opinion, that should soon change, and the conduct should be considered a violation of the rules.

  • A.   Withdrawing because a client calls or e-mails too often
  • B.    An associate acting at the express direction of a supervising partner
  • C.   Falling for a common trust account scam.  See, this post.
  • D.   Representing a client who is adverse to a former client on the theory that “I don’t remember anything about the former client’s case.”

Question 5

Somewhat of a dichotomy given the weekend . . .

This lawyer collapsed and died of a heart attack near his Washington, D.C. home in 1988.  He was buried with full military honors in Arlington National Cemetery – in part because of his service in the U.S. Navy World War II, and in part because he once held a cabinet position.  The cabinet position: Attorney General of the United States.

In 1976, the lawyer was disbarred by the State of New York as a result of having been convicted of crimes that took place while he served as U.S. Attorney General.

Name the lawyer.

John Mitchell. Mitchell was Attorney General during Watergate.

Langrock up for ABA seat

I don’t often post about individual Vermont lawyers – especially Vermont lawyers who are Canadiens fans. But, I think this is worth mentioning.

Vermont’s own Fritz Langrock is a candidate for a seat on the ABA Board of Governors.  Fritz is running unopposed to represent District 1.  Because who would challenge a Vermonter!?!?!

The ABA Journal has this piece on the upcoming ABA elections. Scroll down a tad and you’ll see Fritz.

In an interesting (to me) sidenote, if you scroll down a bit further, you’ll see that Professor Myles Lynk is running unopposed for the seat as the Board’s Minority Member-at-Large.  Many years ago, Professor Lynk spent a semester as a visiting professor at George Washington Law School. Among other courses, Professor Lynk taught Civ Pro 2 to a class that included Mike Kennedy.

Congrats to both Fritz & Professor Lynk!

Fritz, in your honor, and for the first & last time on this blog, I’ll post this image:

Habs

Protect Client Info When Traveling Abroad

Given the proximity of the Canadian border, and with the YLD Thaw in mind, this article strikes home.

As reported by the ABA Journal in this post, ABA President Linda Klein recently authored a letter to DHS in which she expressed “serious concern about standards that permit searches of lawyer laptops and other electronic devices at the border in the absence of reasonable suspicion.”  President Klein’s letter is here.

Let me be clear: I am NOT suggesting that Vermont lawyers have an affirmative duty to refrain from bringing devices that contain client data to Montreal when traveling for the weekend. However, understand what might happen upon your return.  And, as I often say in response to inquiries, avoiding problems is a great way not to have any.  So, if you don’t need your device that contains work & client data while you’re wandering the Old Port, consider not bringing it.

Somewhat related, I’ve previously posted a blog Subpoena to Disclose Client Info?

Border