Monday Morning Answers #130

Welcome to the week!  Friday’s questions are here.  Before I get to the Honor Roll & answers, it was great to see so many lawyers both participating in and volunteering at yesterday’s Pine Street Mile. Wellness is a thing.

Honor Roll

Answers

Question 1

There’s a rule that prohibits lawyers from making “a false or misleading communication about _____________.”   Per the rule, “a communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.”  It’s the rule on:

  • A.  Communicating with an Unrepresented Person
  • B.  Candor to a Tribunal
  • C.  Communications Concerning a Lawyer’s Services.  Rule 7.1.
  • D.  Puffery (Statements made in negotiations)

Question 2

Lawyer settled a PI claim on behalf of client.  The insurance company sent Lawyer a check.  Lawyer deposited the check into trust yesterday.  Client wants her money now, before the weekend.

Under Vermont’s rules, which is most accurate?

  • A.  Lawyer cannot disburse funds to client until the check clears.
  • B.  Lawyer violated the rules. The check should not have been deposited into trust.
  • C.  It depends on the terms of the fee agreement.
  • D.  If the insurance company is licensed to do business in Vermont, Lawyer can disburse in reliance upon the deposit, without waiting for the check to become “collected funds.”  Rule 1.15(g)(5).

Question 3

Lawyer called me with an inquiry.  My response included this statement:  “Even if you are ‘necessary,” the rule applies ‘at trial.’ And there’s an argument that it means ‘at a jury trial.’ ”

Given my response, Lawyer called to talk about the rule on:

  • A.  Representing an Organization
  • B.  Candor to a Tribunal
  • C.  Fairness to Opposing Party & Counsel
  • D.  Lawyer as a Witness.  Rule 3.7

Question 4

Fill in the blank.

There’s a rule on prospective clients.  Per the rule, if a prospective client consults with a lawyer in good faith, but no attorney-client relationship ensues, the lawyer’s duty of loyalty to the prospective client is relaxed.  However, the rule makes clear that the lawyer’s duty of confidentiality to the prospective client is not relaxed.

Confidentiality.  Rule 1.18(b).

Question 5

The rules require lawyers to reduce contingent fee agreements to writing.

Hollywood talent lawyers take a cut of their clients’ earnings.  Apparently, they don’t always reduce their fee agreements to writing.

Indeed, in late August, a California court voided a “handshake deal” between a movie star and the star’s lawyer.  The deal was made in 1999.  With it having been voided for not being in writing, the movie star is now seeking the return of approximately $30 million paid to the lawyer over the past 20 years.

Name the movie star.

Johnny Depp.  The ABA Journal has the story here.

See the source image

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Client funds: when do third parties have valid claims or interests?

Revised on 9/6 for typos.

Scenarios like this one arise every now & then:

  • Lawyer represents Client.
  • Client was injured in a motor vehicle accident.
  • Lawyer recovers funds for Client from the other driver’s insurer.
  • Lawyer is aware that 3rd party creditors have claims against Client’s funds.
  • Can (or must) Lawyer disburse the funds to Client?

Rules 1.15(a), (d) & (e) apply.

Rule 1.15(a) is the easy one.  Funds held in connection with a representation that are not the lawyer’s must be deposited into a trust account.

Here’s (d):

  • “(d) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person.  Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.”

And here’s (e):

  • “(e) When in the course of representation a lawyer is in possession of property in which two or more persons (one of whom may be the lawyer) claim interests, the property shall be held separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute.”

As suggested by the title, this blog post is limited to one specific issue: when does a third party have “an interest” in funds that a lawyer recovered for client? In other words, this blog post is the 101 equivalent to a topic that has several 500 level courses.

Yet, even as a 101 class, it can get murky.

For example, what if Lawyer knows that Client has unpaid medical bills for treatment of injuries sustained in the auto accident, but has never heard from the treatment provider?  Does the provider have “an interest” sufficient to trigger Rules 1.15(d) and (e)?  Or, must Lawyer disburse the funds to Client?

Or, what if Client happens to mention “no, I didn’t see the Sox amazing comeback yesterday.  Cable prices are outrageous, so I stopped paying four months ago.  They cut-off my service.”  Does Client’s cable provider have an interest in the funds that Lawyer is holding?

Often, the comments to the rules are helpful.  Here, I’m not so sure.  Comment [4] to Rule 1.15 says:

  • “Paragraph (e) recognizes that third parties may have lawful claims against specific funds or other property in a lawyer’s custody, such as a client’s creditor who has a lien on funds collected in a personal injury action.  A lawyer may have a duty under applicable law to protect such third-party claims against wrongful interference by the client. In such cases, when the third-party claim is not frivolous under applicable law, the lawyer must refuse to surrender the property to the client until the claims are resolvedA lawyer should not unilaterally assume to arbitrate a dispute between the client and the third party, but, when there are substantial grounds for dispute as to the person entitled to the funds, the lawyer may file an action to have a court resolve the dispute.”

Umm . . .  ok.  But, again: what are the “interests” and “claims” that trigger the rule?  When is a third party “entitled” to funds that a lawyer is holding for client?

Today, I found this advisory opinion from the Virginia State Bar.  I find pages 1-4 particularly helpful.

Let me be clear: here in Vermont, I do not know how disciplinary counsel, a hearing panel, or the Supreme Court would approach the issue.  However, I think the opinion from the Virginia State Bar is useful in formulating the appropriate thought process.

Some key quotes from the opinion:

  • “In the absence of a valid third party interest in the funds, the lawyer owes no duty to a creditor of the client and must act in the best interests of the client.”

This is important. In other words, when it comes to funds, a lawyer’s primary loyalty remains to the client and the conflict rules continue apply.

  • The mere assertion of an unsecured claim by a creditor does not create an ‘interest’ in the funds held by the lawyer.  Therefore, claims unrelated to the subject matter of the representation, though just, are not sufficient to trigger duties to the creditor without a valid assignment or perfected lien.”

This is consistent with how I’ve approached the issue.  Standing alone, “Hey, your client owes me money” isn’t enough.  Even if it’s true.  This is my cable bill example.

Next, the opinion lists things that certainly trigger a lawyer’s duties to a third-party creditor:

  • statutory liens
  • judgment liens
  • court order or judgments that affect the funds.

Then, the opinion says:

  • Likewise, agreements, assignments, lien protection letters, or other similar documents in which the client has given a third party an interest in specific funds trigger a duty under [the rules] even though the lawyer is not a party to such agreement or has not signed any document, if the lawyer is aware that the client has signed a document.” (emphasis in the original).

And, to me, here’s the key statement:

  • In other words, a third party’s interests in specific funds held by the lawyer is created by some source of obligation other than Rule 1.15 itself.”

This makes perfect sense to me.  The mere fact that Lawyer is holding the money is not sufficient to give a third party “an interest” in or “claim” to the funds.

With all of this said, the Virginia opinion makes a critical point that cannot be ignored.  While the general rule is that a lawyer have “actual knowledge” of a third party’s interest or claim to trigger the duties under the rule:

  • “In some situations under federal and state law, the lawyer need only be aware that the client received medical treatment from a particular provider or pursuant to a health care plan. In those instances, notice of lien or lien letter may not be required in order for that third party to claim entitlement to funds held by [the] lawyer.

In other words, the duty of competence includes knowing whether, by law, a treatment provider has a valid interest, claim, or entitlement that may not need to be formally asserted.

Finally, remember, your duty as a lawyer is to recognize the existence of valid claims and interests to funds you are holding for a client. The rule does not require you to resolve the claims and, in fact, prohibits you from doing so unilaterally.

Again, I can’t predict what disciplinary counsel, a hearing panel, or the Supreme Court will do.  I will say this though:

Many years ago, when I was still disciplinary counsel, a chiropractor filed a disciplinary complaint against a lawyer.  The lawyer had represented a client in a personal injury case.  The chiropractor had treated the client and, in addition, had the client sign an agreement that the bill would be paid out of any recovery secured by the lawyer.  Chiropractor sent a copy of the agreement to the lawyer.

Eventually, lawyer settled the case.  Lawyer paid himself and other treatment providers, but, at his client’s direction, did not pay the chiropractor before disbursing the remaining funds to the client.  As you might have guessed, by the time the chiropractor found out, the client had blown through the recovery.

I decided to prosecute the lawyer for violating Rules 1.15(d) and (e).  As required by the rules that govern the Professional Responsibility Program, I asked a hearing panel to review my decision for probable cause.  The panel concluded that there was no probable cause to conclude that the lawyer should face formal disciplinary charges.  As such, the complaint was dismissed.

Over time, I’ll continue to explore related issues.  Future blogs will address (1) a lawyer’s duties upon concluding that a third-party has an interest in funds that the lawyer is holding for a client; (2) a lawyer’s duties when asked to guarantee payment to a client’s creditors.

Legal Ethics

 

Five for Friday #129

21 years ago today I went to Albany (NY) to visit Todd Sinkins, one of my law school roommates.  I remember that I went with Erin, a woman I was dating at the time, but I don’t recall why we went.

So, why do I recall it at all?

Because I remember having just exited interstate 87 onto Western Avenue when we heard that Princess Diana had died.

For some odd reason, I’m fascinated by events that are seared into the memories of an entire generation.  For example, both of my parents know exactly where they were when they learned that JFK had been assassinated.  And each has a clear memory of being at my grandparents’ house in Bradford on the day of the first moon landing.

Actually, it’s not necessarily the events that fascinate me.  It’s whatever “it” is that causes an entire generation to remember an event forever.  Sadly, tragedy & grief appear to be the tie that binds us all.  For example, I’m guessing that most in my grandparents’ generation have vivid memories of where they were & what they were doing when they learned that Pearl Harbor had been attacked.  And, for people my age, I’m fairly certain that 9/11 is “that” event.

Last night, I wondered whether Diana’s death qualifies as well.  So, I thought I’d throw the question to my readers – what are the events seared into the memories of your generation or, as I suppose is the case with 9/11, multiple generations?

Feel free to share.  The aspect of this Friday column that I like the most – in fact that I love – are the stories you send in response.  Last week’s stories of memories of fairs, endless summers, and young crushes were amazing.  Indeed, the column sparked more stories from my readers than any other, moving ahead of your superstitions and your respective stances in the Beatles v. Stones debate.

Now, a ground rule.  I’m not referring to something that just you will always remember.  For instance, I’ve shared my indelible memory of costing the Red Sox the 1986 World Series. Or, I have a reader who will never forget where he was when he learned that Frank Sinatra had died.  (I see you Uncle Drew!) For this exercise, neither would count.  I’m looking for collective memories.

I look forward to hearing from you.  In the meantime, I hope you have a fantastic long weekend, one that includes lots of things that have nothing to do with work.

Oh, and for you persnickety readers who prefer every Friday column to be tied to the week’s number, fear not!  Diana was born and married in July.  Respectively, on the 1st and 29th.  So, there you have it: 129.

Onto the quiz!

Image result for diana

RULES

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception – but one that is loosely enforced – #5 (“loosely” = “aspirational”)
  • 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
  • Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

Lawyer called me with an inquiry.  My response included the following words and phrases:  “knowledge,” “violation,”  “substantial question,”  and “honesty, trustworthiness, fitness.”

What did Lawyer call to discuss?

  • A.  Informing a court that a client had testified falsely in a civil matter.
  • B.  Informing a court that a criminal defense client had testified falsely.
  • C.  Reporting another lawyer’s misconduct.
  • D.  Whether reciprocal discipline would be imposed in Vermont as a result of Lawyer being sanctioned in another state.

Question 2

The conflicts rules are NOT relaxed for:

  • A.  Lawyers who transfer from one private firm to another.
  • B.  Lawyers who move from government practice to private practice.
  • C.  Lawyers who provide short-term pro bono services under the auspices of a program sponsored by a nonprofit or court.
  • D.  All of the above.

Question 3

You’re at a CLE.   You hear me say:  “yes, it’s okay as long as  (1) your client gives informed consent; (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and (3) information relating to the representation of your client is protected as required by Rule 1.6.”

What did someone ask if it was okay to do?

  • A.  Accept compensation for representing a client from someone other than the client.
  • B.  Request that guardian be appointed for the client.
  • C.  Represent co-defendants in a criminal matter.
  • D.  Talk to the media in a client’s case.

Question 4

Client provides Lawyer with an advance payment of $2,000.  Lawyer has yet to do any work for Client.

Which is most accurate?

  • A.  The fee agreement must be confirmed in writing.
  • B.  The fee agreement must be confirmed in a writing that is signed by Client.
  • C.  The $2,000 must go into Lawyer’s pooled interest-bearing trust account (“IOLTA”).
  • D.  Lawyer may treat the money as Lawyer’s own if Lawyer confirms in writing (i) that the fee is not refundable; and (ii) the scope of availability or services that Client will receive.

Question 5

Speaking of the JFK assassination . .  .

. . . Jules Mayer was a lawyer in Dallas.  In 1950, Mayer drew up a will for a client.  The will named Mayer as the executor the client’s estate.

The client died in 1967.  A dispute quickly arose, as the client’s family contended that the client had changed his will on his deathbed to remove Mayer as executor.  Mayer refused to make the change and kept the original will.

In 1991, after a lengthy legal battle, a probate court granted the family’s petition to remove Mayer as executor after concluding that he had mismanaged the estate.

Central to the dispute was gun associated with the JFK assassination.  Mayer’s client bought the gun for $62.50.   After winning their legal battle with Mayer, the client’s family sold the gun for $220,000.  Fortunately for the family, Mayer had safeguarded the gun, holding it in trust for 24 years.

Two-part question:

  1. Who was Mayer’s famous client?
  2. Who was the most famous victim of the client’s gun?

 

 

 

Pro Bono: FAQs & Opportunities

Disclaimer: I serve as the chair of the Vermont Bar Association’s Pro Bono Committee. Still, there’s an entire section of the Rules of Professional Conduct dedicated to pro bono. So, it’s a topic that’s eminently appropriate for this blog.

Here are my answers to some frequently asked questions.

What’s the rule?

It’s Rule 6.1:

  • “Every lawyer has a professional responsibility to provide legal services to those unable to pay.  A lawyer should render at least 50 hours of pro bono publico legal services per year .  In fulfilling this responsibility, a lawyer should
    • (a) provide a substantial majority of the 50 hours without fee or expectation of fee to:
      • (1) persons of limited means; or
      • (2) charitable, religious, civic, community, governmental, and educational organizations in matters which are designed primarily to address the needs of people with limited means.”

The remainder of the 50 hours can be satisfied in any of the ways outlined in Rule 6.1(b).

Who qualifies as a “person of limited means?”

  • See, Rule 6.1, Comment [3] (“Persons eligible for legal services under paragraphs (a)(1) and (2) are those who qualify for participation in programs funded by the Legal Services Corporation and those whose incomes and financial resources are slightly above the guidelines used by such organizations but nevertheless cannot afford counsel.”

My client stiffed me, that’s pro bono, right?

  • Wrong.  Rule 6.1(a) is clear:  a “lawyer should provide substantial majority of the 50 hours of legal services without fee or expectation of fee . . ..”
  • Comment [4] drives home the point:  “Because services must be provided without fee or expectation of fee, the intent of the lawyer to render free legal services is essential for the work performed to fall within the meaning of paragraphs (a)(1) and (2).  Accordingly, services rendered cannot be considered pro bono if an anticipated fee is uncollected . . . .”
  • Note, however that the Comment goes on to indicate that “. . . the award of statutory attorney’s fees in a case originally accepted as pro bono would not disqualify such services from inclusion under this section.  Lawyers who do receive fees in such cases are encouraged to contribute an appropriate portion of such fees to organizations or projects that benefit persons of limited means.

I’m a government attorney, so I don’t have to do pro bono.

  • False.  Rule 6.1 applies to all lawyers.  Comment[5], however, recognizes that government lawyers may not be able to satisfy the requirements of Rule 6.1(a) and, therefore, should be allowed to satisfy the pro bono requirement via provision of services set out in Rule 6.1(b).  Specifically, the Comment states
    • “Constitutional, statutory, or regulatory restrictions may prohibit or impede government or public sector lawyers and judges from performing the pro bono services outlined in paragraphs (a)(1) and (2).  According, where those restrictions apply, government and public sector lawyers and judges may fulfill their pro bono responsibility by performing services outlined in paragraph (b).

Ok Mike, I’m doing pro bono work, what other rules apply?

  • All of them!  You must be competent & diligent.  You can’t communicate with a represented party on the subject of the representation without counsel’s consent.  You can’t lie.  In short, pro bono work is not a license to act unethically.

What about the conflicts rules?

  • Rule 6.5 relaxes the conflicts rules IF a lawyer provides:
    • short-term limited legal services
    • under the auspices of a program sponsored by a nonprofit organization or court
    • without expectation by the lawyer or the client that the lawyer will provide continuing representation in the matter.
  • If each of these is present, the conflicts rules apply only if the lawyer KNOWS of a conflict.  In other words, if the 3 conditions are met, a lawyer does not have to do a conflict check prior to commencing the representation.  See, Rule 6.5, Comment [1] (“Such programs are normally operated under circumstances in which it is not feasible for a lawyer to systematically screen for conflicts of interest as is generally required before undertaking a representation.”
  • Remember: a lawyer may provide pro bono services outside the auspices of program sponsored by a nonprofit or court.  However, if so, the lawyer must check for conflicts.

How can I learn about pro bono opportunities?

Some opportunities are here.  There’s also the Vermont Volunteer Lawyers Project.  To learn more, please contact Mary Ashcroft or Angele Court.

Also, here’s a message that Navah Spero, President of the Chittenden County Bar Association, sent today:  “in addition to the many wonderful opportunities available at non-profits in the area, the courts are always looking for volunteers to serve as guardians ad litem (Family Division), attorneys for proposed wards in guardianships (Probate Division), attorneys for the rent escrow clinic (Civil Division), and more.  Be in touch with the court clerks directly for more information.”

 

There should be a conference on this.

There is.  October 18, 2018, at the Statehouse.   Save the date. The conference will include seminars on:

  • legal ethics
  • working with victims of trauma
  • starting & sustaining legal clinics
  • working with clients with disabilities
  • meeting the legal needs of the homeless
  • the basics of landlord/tenant law
  • the basics of domestic violence & harassment law
  • “TED”-type talks on pro bono &:
    • post-adoption contract agreements
    • adult involuntary guardianships
    • bankruptcy
    • child support contempt defense
    • the Vermont Volunteer Lawyers Project
    • muncipal boards & basic due process

Thank you.

Related image

 

Reruns

Remember reruns?  In the age of streaming content, I don’t know if reruns are even a thing anymore.  If not, good riddance!!

Seriously, was there anything as disappointing as waiting all week for the next episode of your favorite show only to have it be a rerun?

Aside: yes, we used to have wait all week for the next episode of our favorite shows.

As much as I despised reruns as a viewer, I love them as a blogger.  They’re the perfect antidote to writer’s block. So, here goes.

The VBA’s Tech Day is next month.  The agenda is fantastic.  It includes seminars on several topics upon which I’ve blogged in my nauseating ongoing effort to remind lawyers that the duty of competence includes tech competence.

Missed my posts?  Thank goodness for reruns.

Last October, I posted Competence, ESI, and E-DiscoveryIt referenced several topics, including:

  • admitting social media posts into evidence;
  • an attorney’s duties related to a client “taking down” or “scrubbing” social media posts;
  • practical tips on preservation letters regarding ESI.

VBA Tech Day includes seminars on each.

Last September, I posted Protecting Data: Cybersecurity TipsI followed up in February with  ABA Journal Provides Cybersecurity TipsEach post refers back to my post on the electronic transmission & storage of client information: The Cloud: What are Reasonable Precautions? Indeed, I’ve often blogged on Encryption & The Evolving Duty to Safeguard Client Information.

VBA Tech day includes seminars on encryption, cybersecurity, & data security.

Finally, I’ve blogged on using technology to become more efficient.  My post Fees. Is there an App for that? refers to an ABA Journal post that discusses how technology can help lawyers bill more than 2.24 hours per day that, on average, they currently bill.  And, in Tech Competence: It includes more than you might think, I cautioned that a lawyer who isn’t competent in basic tech runs the risk of violating Rule 1.5 by over-billing clients.

VBA Tech Day includes seminars on using technology to become more efficient at billing.

I think the networks might have used reruns to build anticipation for the final few episodes of a show’s season.  Most of those episodes ran in May.

Well, I’ve posted some reruns here today. Hopefully they build anticipation for VBA Tech Day.  A terrific conference on tech-related issues that will take place in, you guessed it, May.

See the source image

 

Five for Friday #111

Welcome to #111!

111 is probably how much my Dad’s blood pressure rose during the Sox game yesterday.  As they say, hope springs eternal, or at least until your bullpen blows its first game.

But it’s nothing that ice cream can’t cure! And that’s what 111 reminds me of – ice cream.

Wait, when I said it’s nothing that ice cream can’t cure, I meant the Red Sox part, not the high blood pressure part.  Dad! Stick to your pills! I repeat: do not treat high blood pressure with ice cream!

When my brother and I were kids, we basically had 4 channels.  Channel 3, Channel 5, and Channel 22 were the local network affiliates. And then there was our favorite: WPIX.  Channel 11 out of New York City.

I don’t really remember exactly what we watched on Channel 11.  Definitely Batman and Magic Garden (yes, THAT Magic Garden).  And cartoons.  I specifically remember Mighty Mouse, Felix the Cat, and Tom & Jerry.   Also, both of us are positive that Channel 11 was our source for half-hour upon half-hour upon countless half-hours of syndicated sit-coms.  Indeed, last night, as we tried to remember which shows we watched there, we mentioned several:  Brady Bunch, Gilligan’s Island, I Dream of Jeannie, Hogan’s Heroes, and The Odd Couple.  Was each on WPIX? Probably not.  But in our minds, if it’s a good show, it was once in syndication on Channel 11.

I do remember this: we watched Channel 11 all the time. Thank god for parents who went to work and didn’t get sitters in the summer.  Those were the days.

So what’s this got to do with ice cream?

The commercials.  Does anyone remember Carvel Ice Cream?

I’m pretty sure that 11 out of every 10 commercials on WPIX were for Carvel. And let me tell you, they worked.  I spent years craving, craving, and craving an ice cream sheet cake or, even better, a Lollapalooza.  But NYC was so far away.  And the Yankees played there.

Then it happened.

A Carvel’s franchise opened out on North Avenue.  Alas, we lived by the airport, so we rarely went. I mean, it had to be at least 5.5 miles from home.  Meanwhile, Al’s was a half-mile away, Hojo’s not much further. Damn gas prices in the 70’s.

But we went a few times! I definitely got my Lollapalooza. And I’m pretty sure that an ice cream cake loaded with sprinkles appeared at a birthday party or two.

Yet, it’s not a sheet cake or Lollapalooza that remains etched in my brain.  It’s the memory of the taste of a Carvel’s orange creamsicle.  You might say I haven’t lived, but, to young me, no better food had ever been invented. And WPIX 11 was the only reason I ever ended up tasting it.

WPIX.  Commercials.  The memory of an orange creamsicle.   That’s why 111 makes me think of ice cream.

P.S: speaking of Magic Garden, my brother reminded me that Carole graduated from UVM.

Onto the quiz!

Rules

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Even question 5!
  • 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
  • Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

What’s Vermont’s rule?  A lawyer shall:

  • A.  Charge a reasonable fee.
  • B.   Not charge an unreasonable fee.
  • C.   Not charge or collect an unreasonable fee.
  • D.   Not make an agreement for, charge, or collect an unreasonable fee.

Question 2

Fill in the blank.

The third comment to a particular rule defines __________ ___________ as involving “the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representationw would materially advance the client’s position in the subsequent matter.”

It’s the definition of:

  • A.  when matters are “substantially related”
  • B.   what type of information qualifies as a “client confidence”
  • C.   a concurrent conflict of interest
  • D.  a non-waivable conflict of interest

Question 3

Which is different from the others?

  • A.  Friending an adverse & represented party.
  • B.  Reviewing a potential juror’s Twitter account.
  • C.  Advising a client to “take down” social media posts.
  • D.  Crowdfunding litigation.

Question 4

Isaiah meets with Lawyer to discuss a potential claim against Lonzo.  Isaiah mentions that Attorney represents Lonzo   Attorney and Lawyer are married to each other.

Which is most accurate in Vermont?

  • A.   Lawyer is prohibited from representing Isaiah.
  • B.   Lawyer is prohibited from representing Isaiah unless Isaiah provides informed consent that is confirmed in writing.
  • C.  Lawyer is prohibited from representing Isaiah and the conflict is imputed throughout Lawyer’s firm.
  • D.  Both Isaiah & Lonzo are entitled to know of the Attorney/Lawyer marriage and, ordinarily, Attorney & Lawyer may not continue unless each client gives informed consent.

Question 5

A woman named Linda passed away earlier this week.  She was 76 and grew up in Topeka, Kansas.  I don’t know whether anyone who reads this blog ever met her.  But, I’m positive that nearly every single person who reads this blog & who went to law school read about her in class.

What was Linda’s last name?

See the source image

 

 

Monday Morning Answers #110

Welcome to Monday!  Especially all of you who picked Loyola to go to the Final Four!

By the way, the Kansas v. Duke game was the best of the tournament.  As my buddy Gary texted with about 3 minute remaining in regulation, “I feel like I’m watching the title game.”  I agree.  We’ll see.

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

Honor Roll

Answers

Question 1

Rule 1.9(c) permits a lawyer to use information to a former client’s disadvantage if the information is “generally known.”

True or False: information that is “public record” is considered to be “generally known.”

False.  See, this post, and, this post.  However, the tide is turning (and has been for several years.) I’ll blog more on this issue later this week.  The post will focus on a decision from the Virginia Supreme Court: Hunter v. Virginia State Bar.

Here’s a preview.  This weekend, Josh King, Avvo’ chief legal officer, posted this comment to my most recent blog post on the “generally known” v. “public record” debate:

“Having hired lots of lawyers over the last 20+ years, of course I wouldn’t want them blabbing about my matters without my consent. But there’s a difference between a best practice and what the law can prohibit. I’m quite sure that Rule 1.6 can’t constitutionally be applied to discipline a lawyer for stating something that is in the public record.”

Question 2

For the purposes of the Rules of Professional Conduct, which is different from the others?

  • A.  Client files disciplinary complaint against lawyer
  • B.  Client leaves negative online review for lawyer
  • C.  Client sues lawyer for malpractice
  • D.  Client files petition for post-conviction relief that makes allegations about the lawyer’s representation of client.

Question 3

Referring back to question 2, provide a short-explanation.  That is, what makes your choice different?

A, B, and D fall under Rule 1.6(c)‘s “self-defense” exception to the general rule against disclosing information related to the representation of the client absent the client’s consent.  Rule 1.6(c) permits a lawyer to disclose otherwise protected info “to establish a claim or defense . . . in a controversy between the lawyer and the client, to establish a defense to a criminal or civil claim against the lawyer based upon conduct in which the client was involved, or to respond allegations in any proceeding concerning the lawyer’ representation of the client.”  A negative online review does not invoke the exception.  I’ve blogged on this issue here. (scroll to the bottom for a list of decisions and opinions).

Question 4

A client asks whether you use “cold storage” or a “hot wallet.”

What is it that the client is asking how you hold?

Most likely, cryptocurrency.  For example, bitcoin. Here’s an advisory opinion from Nebraska on cryptocurrency.  Coindesk ran this story on the advisory opinion.

Question 5

Fill in the blank.  It’s the same word for each blank.

THE DEFENSE IS WRONG!!

Witness: “The car that made these two, equal-length tire marks had POSITRACTION.  You can’t make those marks without POSITRACTION, which was not available on the ‘64 Buick Skylark!”

Lawyer:    “And why not?  What is POSITRACTION?”

The scene is here.

And, courtesy of Hal Miller, here’s the pic for today’s post:

IMG_2449

The Vermont Bar Exam

The bar exam is today and tomorrow.  Approximately 60 applicants for admission by examination will sit at the Capitol PLaza.  The following post originally ran on February 21, 2017.  

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The bar exam is today and tomorrow. As I type this entry, 40 aspiring members of the Vermont bar are 1 hour and 14 minutes into the exam.  I’m one of several proctors.

It’s not exactly legal ethics, but I thought I’d post a primer on the exam.  My sense is that not many Vermont attorneys know that the examination process changed significantly in 2016.

In February 2016, the Vermont Supreme Court adopted new Rules of Admission.  The rules went into effect on April 18, 2016.  Among the most significant changes:

  • adopting the Uniform Bar Exam
  • eliminating the so-called “clerkship”
  • requiring successful examinees to complete Vermont-specific CLE and a “mentorship”

The Uniform Bar Exam

Vermont administers the Uniform Bar Exam (“UBE”).  What’s that mean? Most notably, it means that there are no Vermont-specific essays.

For many of you, the bar exam included 6 essay questions drafted by the Board of Bar Examiners that tested Vermont law.  No more. Now, the Vermont exam is, well, uniform. That is, an examinee who sits in Vermont takes the exact same exam as an examinee who sits in one of the 25 other UBE jurisdictions.

Essays have not disappeared altogether.  It’s just that the essay questions are the same in each UBE jurisdiction.

On the morning of Day 1, examinees take the Multistate Performance Test.  The MPT is best described HERE.

On the afternoon of Day 1, examinees take the Multistate Essay Examination.  The MEE is best described HERE.

MPT and MEE questions are drafted by the National Conference of Bar Examiners.  Answers, however, are graded by members of Vermont’s Board of Bar Examiners.

Day 2 of the exam should be familiar to all: the Multistate Bar Examination.  You probably know it better as “the multiple choice.”

Scoring has changed a bit as well.  Over the past several years, examinees received an MBE score and an essay score.  To pass, an examinee had to score at least 135 on both the MBE and the essay.  The overall total did not matter.  Thus, an examinee who scored 135 on the MBE and a 135 on the essay passed, but an examinee who scored 170 on the MBE and 134 on the essay did not.

Now, examinees receive a UBE score that is a single number.  Each UBE jurisdiction is authorized to set its own passing score. Not all are the same. A passing score in Vermont is 270.

UBE scores are portable.  In other words, a score is good in every UBE jurisdiction.  Like all UBE jurisdictions, Vermont allows examinees to apply for “admission by transferred  UBE score.”  For example, New Hampshire is a UBE jurisdiction. Odds are that someone who is taking today’s exam in New Hampshire will apply for admission in Vermont.  As long as the person scores at least a 270, the person is eligible for admission in Vermont, even having taken the exam in New Hampshire.

Important!  Achieving a 270 in another jurisdiction is NOT an automatic ticket into the Vermont bar. Applicants who score at least 270 in another UBE jurisdiction must still go through Vermont’s Character & Fitness review.

Elimination of the Clerkship

Many of you remember the “3-month clerkship.”  Some of you might remember the “6-month” clerkship.  Each was a pre-admission requirement.  Each has been eliminated.

CLE & Mentorship

The clerkship has been replaced by post-admission CLE and mentorship requirements.

An applicant is admitted to the Vermont bar upon passing the Uniform Bar Examination, passing the Multistate Professional Responsibility Examination, and being approved by the Character & Fitness Committee.  Then, the applicant has 1 year to:

  • complete 15 hours (at least 6 of which must be “live”) of continuing legal education in Vermont practice & procedure that has been approved by the Continuing Legal Education Board and certified by the Board of Bar Examiners; and,
  • complete a mentorship.

Failure to complete the CLE or mentorship results in an administrative suspension that can only be cured by completion.

For more information on the CLE and mentorship requirements, please visit this page.

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Fed Judge to Taylor Swift: “However banal, play on playa!”

(Note:  this post originally ran on February 25.  Today, March 1, I’m updating it to reflect a reader’s report that “player” and “hater” aren’t the first words to code. The update appears at the end of the post.)

Two of the most read posts in the history of Ethical Grounds are my #fiveforfriday posts on Taylor Swift and My Cousin Vinny.

The nation’s federal judges are slowly but surely starting to speak this blog’s language!

Last year, an appeals court issued an opinion in which it cited to Judge Chamberlain HallerThen, last week, a federal judge dismissed a copyright claim that had been filed against Taylor Swift.  The story has been covered by the ABA Journal, Washington Post, and Hollywood Reporter.

Plaintiffs Sean Hall and Nathan Butler alleged that Swift lifted the chorus to her hit Shake It Off from their 2001 song Playas Gon’ Play.  The hook to this blog: stealing lyrics (copyright infringement) is the music industry’s equivalent of a disbarrable offense.

Anyhow, in the Swift case, the plaintiffs’ 2001 work included the following lyrics: Playas, they gonna play/ And haters, they gonna hate / Ballers, they gonna ball / Shot callers, they gonna call / That ain’t got nothin’ to do / With me and you / That’s the way it is /That’s the way it is.”

For you non-Swifties, Taylor’s Shake It Off  debuted at #1 in September 2014.  Its chorus begins: “Cause players gonna play, play, play, play, play.  Haters gonna hate, hate, hate, hate, hate.” But Taylor’s just gonna shake it off, shake it off.

And shake it off she did per this opinion from U.S. District Judge Michael Fitzgerald.

As noted by the Washington Post, Judge Fitzerald’s order is “peppered with judicial shade.”  In other words, with the opinion, Judge Fitzgerald staked a claim as the federal judiciary’s leading baller, shot caller.  (I have no idea if he’s got 20 inch blades on the Impala.)

Fitzgerald opened by taking judicial notice of a series of songs whose lyrics refer to “players” and “haters.” The list includes Fleetwood Mac’s Dreams (“players only love you when they’re playing”), Outkast’s debut single Player’s Ball, and Notorious B.I.G.’s Playa Hater.

Then, after reciting law and stuff, Fitzgerald got to the crux of the matter:

  • “Plaintiffs argue that their short phrase – ‘Playas, they gonna play/And haters,they gonna hate’ – is sufficiently creative to warrant protection. The Court disagrees.”

He went on:

  • “The concept of actors acting in accordance with their essential nature is not at all creative; it is banal. In the early 2000s, popular culture was adequately suffused withthe concepts of players and haters to render the phrases ‘playas … gonna play’ or ‘haters … gonna hate,’ standing on their own, no more creative than ‘runners gonna run,’ ‘drummers gonna drum,’ or ‘swimmers gonna swim.’ Plaintiffs therefore hinge their creativity argument, and their entire case, on the notion that the combination of  ‘playas, they gonna play’ and ‘haters, they gonna hate’ is sufficiently creative towarrant copyright protection.”

Almost there:

  • “It is hardly surprising that Plaintiffs, hoping to convey the notion that one should persist regardless of others’ thoughts or actions, focused on both players playing and haters hating when numerous recent popular songs had each addressed the subjects of players,haters, and player haters, albeit to convey different messages than Plaintiffs were trying to convey. In short, combining two truisms about playas and haters, both well-worn notions as of 2001, is simply not enough.”

And the coup de grace:

  • “To explicitly state the [plaintiffs’] argument is to see how banal the asserted creativity is. In sum, the lyrics at issue – the only thing that Plaintiffs allege Defendants copied – are too brief, unoriginal, and uncreative to warrant protection under the Copyright Act.”

Hammer don’t hurt ’em!

There you have it folks.  A federal court has announced that players and haters are so over.  Banal.  Unoriginal.  Lacking in creativity. Lit? Not.

An era has ended.

By the way, how about the plaintiffs’ onions?  Check out the lyrics that they sought to protect from “infringement”:

  • “Playas, they gonna play/ And haters, they gonna hate / Ballers, they gonna ball / Shot callers, they gonna call / That ain’t got nothin’ to do / With me and you / That’s the way it is /That’s the way it is.”

Blatantly ripped off from both Lil’ Troy and Bruce Hornsby!

Here’s the update: a Linkedin follower points out that, long before player and hater suffered their demises, noted record producer Rick Rubin held a funeral for the word “def.”  World of Pop Culture has the story here.

 

Swift