Monday Morning Answers #210

I hope everyone made the most of the long weekend.  Friday’s questions are here.  The answers follow today’s Honor Roll.

I picked wrong again.

Honor Roll

• Matthew Anderson, Pratt Vreeland Kennelly & White
• Evan Barquist, Montroll Backus & Oettinger
• Alberto Bernabe, Professor, John Marshall Law School
• Beth DeBernardi, Administrative Law Judge, VT Dept. of Labor
• Erin Gilmore, Ryan Smith & Carbine
• Robert Grundstein, Esq.
• Jeanne Kennedy,  JB Kennedy Associates, Blogger’s Mom
• John Leddy, McNeil Leddy & Sheahan
• Pam Loginsky, Washington Association of Prosecuting Attorneys
• Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
• Hal Miller, First American
• Jim Runcie, Ouimette & Runcie
• Jay Spitzen, Esq.
• Jonathan Teller-Elsberg, Hershenson. Carter, Scott & McGee
• Thomas Wilkinson, Jr., Cozen O’Connor
• Zachary York, Child Support Specialist II, Office of Child Support 

Answers

Question 1

Can a lawyer accept compensation from someone other than the client?

• A.  Yes, but only in insurance defense matters.
• B.   Yes, but only if the client is indigent.
• C.   Yes, but the rule permitting it also discourages it.
• D.   Yes, if the client gives informed consent, the payor doesn’t interfere with the lawyer-client relationship, and information relating to the representation of the client is not disclosed to the payor except as authorized by the rule on client confidences.  V.R.Pr.C. 1.8(f).

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

A lawyer called me with an inquiry. I listened, then responded “the first question is whether the new matter is the same as or substantially related to the old matter.”

Given my response, the lawyer called to discuss the rule on:

• A.  file retention
• B.  fees/trust account management
• C.  communication with a represented person.
• D.  a potential conflict of interest.  V.R.Pr.C. 1.9(a).

Question 4

Here’s a sentence that is in the comment to one of the rules on candor.  Your task is to fill in the blank.

“_________________   partially true but misleading statements or omissions that are the equivalent of affirmative false statements.”

• A.    A lawyer does not violate this rule by making . . .
• B.    Misrepresentations can also occur by.  V.R.Pr.C. 4.1, Comment [1].
• C.    Negotiations necessarily include . . .
• D.    According to my dad, Lawyers excel at making . . .

Question 5

The things we do for our clients!!

Sydney Carton was a brilliant lawyer who struggled with alcohol & depression.  His most famous client was Darnay.

While not explicitly clear from the historical record, I’m pretty sure that Darnay filed a disciplinary complaint against Carton.   In it, he alleged that Carton failed to provide him with competent & diligent representation in a criminal trial that resulted in a death sentence for Darnay.

The complaint became moot when Carton, who bore an uncanny resemblance to his client, switched places with Darnay just before the execution.  Carton’s final words before the guillotine fell:

• “It is a far, far better thing that I do, than I have ever done; it is a far, far better rest that I go to than I have ever known.”

Name the book.

A TALE OF TWO CITIES.

Five for Friday #210

The Friday before Labor Day always affects me.

In the rhythm of my life, there’s no other weekend that I want to last longer than this one.  Today still feels like summer, Tuesday morning won’t.  By then, we’ll have arrived at the crescendo to which we’ve been inexorably marching since the first August night we noticed that it was darker a bit earlier than it had been the night before.

Today, the feeling isn’t the same. Over coffee, I pondered “why?” Initially, I settled on “because COVID Summer sucked and there’s no reason to feel bad about it ending.”

Then I realized something: I bear my fair share of the blame.

Did COVID impact the summer?  Yes.  But I let the pandemic take more of my summer than it otherwise would’ve. Basically, I failed at the one thing I can always control: my reaction to things that I can’t.

My brother didn’t fail.   Instead, he bought a pop-up camper.  Since mid-July, he’s spent most weekends socially distanced at campgrounds around New England – fishing, grilling, having drinks by fires.  You know, living.

I’m going to get back to doing the same.  Being thankful for what’s available instead of ruing what isn’t.  I’m starting this weekend by joining him at a campground at Lake Dunmore.  For me, this year, Labor Day weekend marks a new start, not a depressing ending.  I’ve heard that many of you have had summers like mine.  Maybe we can all re-start together.

Oh! And here’s a segue: what wasn’t available in May because of the pandemic is available tomorrow, The Kentucky Derby! Elizabeth Kruska is the incoming president of the Vermont Bar Association.  Liz is also a horse racing aficionado and, in 2018, was kind enough to let me interview her for the Friday post on the day before the Derby.  The interview is here.  Note: Liz picked the winner!  This year, she likes Tiz The Law.

If you’re into wagering, take Liz’s advice over mine.  The horse that I picked to win in that 2018 post came in 20^th. 

Out of 20. 

Still, undeterred, here are my picks for tomorrow.  I like an upset:

• Ny Traffic
• Tiz The Law
• Honor A.P.

Which, of course, means you should go with:

• Tiz The Law
• Max Player
• Authentic

Enjoy the weekend!

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
• Share on social media.  Hashtag it – #fiveforfriday

Question 1

Can a lawyer accept compensation from someone other than the client?

• A.  Yes, but only in insurance defense matters.
• B.   Yes, but only if the client is indigent.
• C.   Yes, but the rule permitting it also discourages it.
• D.   Yes, if the client gives informed consent, the payor doesn’t interfere with the lawyer-client relationship, and information relating to the representation of the client is not disclosed to the payor except as authorized by the rule on client confidences.

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
• B.   Flat Fees
• C.   An agreement to limit the scope of a representation
• D.   All the Above

Question 3

A lawyer called me with an inquiry. I listened, then responded “the first question is whether the new matter is the same as or substantially related to the old matter.”

Given my response, the lawyer called to discuss the rule on:

• A.  file retention
• B.  fees/trust account management
• C.  communication with a represented person.
• D.  a potential conflict of interest.

Question 4

Here’s a sentence that is in the comment to one of the rules on candor.  Your task is to fill in the blank.

“_________________   partially true but misleading statements or omissions that are the equivalent of affirmative false statements.”

• A.    A lawyer does not violate this rule by making . . .
• B.    Misrepresentations can also occur by . . ..
• C.    Negotiations necessarily include . . .
• D.    According to my dad, Lawyers excel at making . . .

Question 5

The things we do for our clients!!

Sydney Carton was a brilliant lawyer who struggled with alcohol & depression.  His most famous client was Darnay.

While not explicitly clear from the historical record, I’m pretty sure that Darnay filed a disciplinary complaint against Carton.   In it, he alleged that Carton failed to provide him with competent & diligent representation in a criminal trial that resulted in a death sentence for Darnay.

The complaint became moot when Carton, who bore an uncanny resemblance to his client, switched places with Darnay just before the execution.  Carton’s final words before the guillotine fell:

• “It is a far, far better thing that I do, than I have ever done; it is a far, far better rest that I go to than I have ever known.”

Name the book.

Monday Morning Answers #209

Welcome to a new week. What a difference 72 hours makes!

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

Honor Roll

• Karen Allen, Esq.
• Evan Barquist, Montroll Backus & Oettinger
• Alberto Bernabe, Professor, John Marshall Law School
• Mimi Brill, Windham County Public Defender
• Andrew Delaney, Martin Delaney & Ricci Law Group
• Erin Gilmore, Ryan Smith & Carbine
• Bob Grundstein, Esq.
• Anthony Iarrapino, Wilschek & Iarrapino
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Elizabeth Kruska, President-Elect, VBA Board of Managers
• John Leddy, McNeil, Leddy, & Sheahan
• Pam Loginsky, Washington Association of Prosecuting Attorneys
• Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
• Jeffrey Messina, Bergeron Paradis Fitzpatrick
• Hal Miller, First American
• Jacob Oblak, Bergeron Fitzpatrick Paradis
• Kristen Shamis, Monaghan, Safar, Ducham
• Norman Smith, Esq.
• Jay Spitzen, Esq.
• Jonathan Teller-Elsberg, Hershenson. Carter, Soctt & McGee
• Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

Which of the 7 C’s of Legal Ethics includes both wellness and understanding the risks & benefits of relevant technology?

Perhaps a poorly phrased question as I was hurrying to get to the beach. Here, I was thinking “competence.”  V.R.Pr.C. 1.1 sets out the duty.  Comment [8] advises lawyers that the duty includes keeping up-to-date on the risks and benefits of relevant technology, while Comment [9] makes it clear that well-being is an aspect of competence.

Question 2

Lobster and Scallop are neighbors.  Last month, Lobster met with Lawyer to discuss representation in a dispute with Scallop.  Lobster chose not to retain Lawyer.  Now, Scallop wants to retain Lawyer in the same dispute.  Which is most accurate?

• A.   If Lobster paid Lawyer for the consultation, Lawyer may not represent Scallop.
• B.   Lawyer may not represent Scallop.
• C.   Lawyer may represent Scallop.
• D.   It will depend whether Lobster provided Lawyer with information that could be significantly harmful to Lobster in the dispute.

This is Rule 1.18.  For more on the duties owed to prospective clients, including guidance from a recent ABA Advisory Opinion, see https://vtbarcounsel.wordpress.com/2020/06/11/conflicts-confidences-prospective-clients/this blog post.

Question 3

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

“For it to be okay, 3 things have to happen.  (1) It has to be in proportion to services you render, or, if not, you have to agree to assume joint responsibility for the representation; (2) the client has agree and confirm the agreement in writing; and, (3) the total has to be reasonable.”

What did Attorney call to discuss?

• A.   a contingent fee agreement.
• B.   entering into a limited representation agreement.
• C.   sharing a fee with a lawyer in another firm.  V.R.Pr.C. 1.5(e).
• D.   settling a malpractice claim with a former client who is not represented by counsel.

Question 4

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.  See, V.R.Pr.C. 4.2, Comment [3].
• D.    Trick Question.  These are the 3 exceptions to the rule.

Question 5

When in Maine . . .

This well-known lawyer’s former clients include Sam Sheppard, Patty Hearst, O.J. Simpson, and the Boston Strangler.  Florida disbarred the lawyer in 2001, with Massachusetts doing the same in 2003.

In 2014, the Maine Supreme Court issued an order denying the lawyer’s application to be admitted in Maine.  Central to the decision was the $2 million in back taxes that the lawyer owed to the federal government.

Name the lawyer.

F. Lee Bailey.  If you’re interested, here’s a fascinating profile that Town & Country Magazine did of Bailey.

 

Upcoming Court Closures in Addison, Bennington, Chittenden, Rutland & Environmental Division.

On Friday, Tari Scott, the Judiciary’s Chief of Trial Court Operations, issued this important scheduling notice about court operations in the Addision, Bennington, Chittenden and Rutland trial courts, as well as in the Enviormental Division.  For those of you who are click averse, I’m pasting in the full text:

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Important Notice about Court Operations During Phase III Odyssey Roll Out
in the Addison, Bennington, Chittenden, and Rutland Trial Courts and Environmental Division

In preparation for the Phase III Odyssey roll out, the Addison, Bennington, Chittenden, and Rutland trial courts and the Environmental Division will be closed to the public on several dates during the months of August and September. Below is a schedule of court closures and information about court operationsduring these dates.

The courts will be closed according to the following schedule:

• All courts in these units will be closed from Monday August 31st through Monday September 7th. Operations will resume on Tuesday September 8th.
• Addison Criminal, Probate, and Family will be closed Friday August 7th, Friday August 14th, Thursday August 20th, and Friday August 28th.
• Addison Civil will be closed Friday August 7th, Friday August 14th and Thursday August 20th.
• Bennington Civil and Probate will be closed Friday August 7th, Friday August 14th, Friday August 21st, and Friday August 28th.
• Bennington Criminal and Family will be closed Tuesday August 11th, Thursday August 20th, and Tuesday August 25th.
• Chittenden Unit will be closed Friday August 14th, Friday August 21st, and Friday August 28th.
• Rutland Civil and Probate will be closed Friday August 14th, Thursday August 20th, and Thursday August 27th.
• Rutland Criminal will be closed Thursday August 13th, Friday August 21st, and Friday August 28th.
• Rutland Family will be closed Wednesday August 12th, Tuesday August 18th, and Tuesday August 25th.
• Environmental Division will be closed Friday August 21st and Thursday August 27th.

Court users should know that on these dates:

• Units will only hold emergency hearings. This includes criminal lodgings, relief from abuse cases, stalking cases, juvenile emergency custodial orders and mental health emergencies.
• Judges from other units or retired judges may sit on these emergency hearings remotely.
• Any non-emergency hearings currently scheduled for this period will be rescheduled.
• Individuals can still call or email the courts, though some calls will be directed to the Information Center first.
• Individuals can still deposit paperwork at the courts’ drop boxes and pick up court forms at court entrances.

The Phase III roll out encompasses staff and courts from seven buildings across four counties. Court staff, finance staff, and RIS staff will be managing data conversion, performing manual data entry, and scanning paper files into Odyssey. This dedicated time is essential to ensure a successful transition onto the new case management system. We appreciate your patience and consideration during this time.

Tari Scott
Chief of Trial Court Operations
Theresa.scott@vermont.gov

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Vermont Bar Exam To Be Administered Remotely In October

The Vermont Bar Exam was originally scheduled for July 28 and 29.  Given the pandemic, the Supreme Court previously rescheduled the exam for September 9 & 10.  The goal was to hold the exam in-person.  Today, amid continuing concerns related to the pandemic, the Court announced that the Vermont bar exam will be administered remotely on October 5 & 6.  For more on the remote exam, see the update at the end of this post.

The Court’s order is part of today’s update to the Administrative Order 49, the order declaring a Judicial Emergency.  Per the order:

• the remote exam will be created by the National Conference of Bar Examiners (NCBE).  This is not new, as the NCBE already creates the Uniform Bar Exam (UBE).
• the exam will be shorter than usual.
• applicants may opt out of the remote administration and either (1) receive a full refund; or (2) be registered for the February 21 administration of the Uniform Bar Exam.
• the Board of Bar Examiners may enter into agreements regarding score portability with other jurisdictions.  This is analogous to the current practice in which scores on the Uniform Bar Exam are portable.  For example, Vermont’s “cut score” on the UBE is 270.  An applicant is eligible for admission to the Vermont bar no matter the UBE jurisdiction in which the applicant scores a 270 or better.

The pandemic has forced state Supreme Courts and bar administrators to make difficult decisions with respect to exam.  As this chart shows, the response varies by jurisdiction.  Similarly, after causing a premature end to their final semester, the pandemic continues to exact an emotional and financial toll from recent graduates whose job offers are conditioned upon passing the bar exam.

For questions specific to the bar exam, please contact Andy Strauss. Andy is Vermont’s Licensing Counsel.

Meanwhile, if you or someone you know needs assistance coping with delays associated with pandemic, please do not hesitate to reach out to me. In the meantime, here is a list of resources available to anyone who needs help with behavioral health issues.

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UPDATE: 4:06 PM – I should’ve included this in the original post.  Here is what the NCBE’s website has about the remote exam:

NCBE to Provide Additional Support for Jurisdictions During COVID-19 Crisis

NCBE will provide a limited set of questions (MBE, MEE, MPT) to jurisdictions for an emergency remote testing option for local admission during the COVID-19 crisis. The materials will be offered for a remote administration on October 5–6, after all three administrations of the bar exam/Uniform Bar Exam (UBE) have occurred, and will provide jurisdictions an emergency option should administering the in-person bar exam not be possible.

This remote testing option will not constitute the full bar exam or the UBE. Scores earned on the remotely administered test will be used for local admission decisions only, and will not qualify as UBE scores. The scores will not be eligible to be transferred as UBE or MBE scores to other jurisdictions or released to candidates via NCBE Score Services.

The emergency remote option follows steps we have previously taken to support our stakeholders in light of the COVID-19 crisis. In early April, we announced we would provide materials for two additional fall administrations of the bar exam/UBE (September 9–10 and September 30–October 1) in addition to the July 28–29 exam.

Nearly all jurisdictions are planning to hold the in-person bar exam this year on one of these scheduled administrations, while making provisions for social distancing and other safety measures. (For information about jurisdiction announcements, visit our July 2020 Bar Exam: Jurisdiction Information page.)

In providing the remote testing option, NCBE is responding proactively to the continuing uncertainty the upcoming months will bring, and the possibility that local or state health and safety restrictions will prohibit in-person testing.

“NCBE understands the enormous challenges facing recent law graduates during the COVID-19 pandemic, including the uncertainty over whether they will be able to sit for the bar exam, which is why we have taken additional steps to facilitate licensure in 2020,” said NCBE president and CEO Judith Gundersen.

“NCBE continues to strongly advocate that a full-length, standard, in-person administration of the bar exam/UBE is best for a number of reasons, including psychometric issues, exam security, and the testing environment of candidates, who may not have access to comparable testing conditions or equipment. We recognize, however, that these are extraordinary times. It is worth noting that many other high-stakes professional licensing exams, such as those for the medical, health care, engineering, and public accounting professions, are to the best of our  knowledge still being held in person or are being postponed until they can be held in person,” Gundersen concluded.

Each jurisdiction will have flexibility in deciding which of the abbreviated test materials to use. While the materials’ subject matter coverage will follow NCBE’s subject matter outlines for the three tests, less content will be covered in shorter testing sessions.

Jurisdictions that must use the remote testing option will have candidates using their own computers in their own testing environments and may choose from among the three technology vendors that already assist jurisdictions with in-person bar exam administration. Each jurisdiction (and its candidates) will deal directly with the jurisdiction’s chosen vendor regarding registration and administration, just as they do currently when laptops are used during the bar exam. NCBE’s role will be to make the test materials available to the vendor designated by each jurisdiction and establish the testing dates and start times for each set of materials.

Jurisdictions will be responsible for scoring the tests and interpreting candidate performance. NCBE will not equate the MBE portion or scale scores from the written portion of the test to the standardized MBE portion as we would do for the standard, full-length bar exam. Without further research, scores from an abbreviated version of the MBE administered by remote testing cannot be considered comparable to the standard, paper-based, full-length MBE administration, such comparability being an essential requirement for equating and scaling.

ABA Issues Guidance on Rule Prohibiting Harassment & Discrimination

In 2016, the ABA adopted Model Rule of Professional Conduct 8.4(g).  The rule has proven controversial, with only 7 states having followed suit. That being said, at the time, about half the states already had in place an analogous rule.

Vermont was the first to adopt the amended Model Rule. Here are links to our rule and the Reporter’s Note.  Maine and New Hampshire have also adopted versions of the Model Rule.  Last month, Pennsylvania became the most recent jurisdiction to do so.

This post is not intended to delve into the controversy surrounding the Model Rule.  If you’re interested in learning more, here are representative samples of each side of the debate:

• a short video in which UCLA’s Professor Eugene Volokh argues against the rule;
• the Louisiana Attorney General’s opinion that a court would likely find the rule unconstitutional;
• a post on The Federalist Society blog that reports on the Montana Legislature’s resolution declaring the rule unconstitutional;
• an ABA Journal post that lays out various opinions on the constitutional issues involved;
• a post in which the Dennis Rendleman of the ABA’s Center for Professional Responsibility responds to criticism of the rule;
• a resolution from the Philadelphia Bar Association supporting the Pennsylvania rule; and,
• an article in which NYU Professor Stephen Gillers argues in favor of the rule.

A simple internent search will lead to scores of other resources.  This chart summarizes where each jurisdiction is vis-a-vis Rule 8.4(g).

Rather, today’s post is intended to call attention to ABA Formal Opinion 493.  Issued yesterday by the ABA’s Standing Committee on Ethics & Professional Responsibility, it provides guidance on the “purpose, scope, and application” of Model Rule 8.4(g).  The ABA Journal reported the opinion.

The opinion offers a defense of the rule.  Then, it answers five hypotheticals.  My sense is that practicing lawyers will be most interested in the hypotheticals.  They’re below.  The answers?  You’ll have to go to the opinion for those!

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Hypotheticals verbatim from ABA Formal Opinion 493

(1) A religious organization challenges on First Amendment grounds a local ordinance that requires all schools to provide gender-neutral restroom and locker room facilities. Would a lawyer who accepted representation of the organization violate Rule 8.4(g)?

(2) A lawyer participating as a speaker at a CLE program on affirmative action in higher education expresses the view that rather than using a race-conscious process in admitting African-American students to highly-ranked colleges and universities, those students would be better off attending lower-ranked schools where they would be more likely to excel. Would the lawyer’s remarks violate Rule 8.4(g)?

(3) A lawyer is a member of a religious legal organization, which advocates, on religious grounds, for the ability of private employers to terminate or refuse to employ individuals based on their sexual orientation or gender identity.63 Will the lawyer’s membership in this legal organization constitute a violation of Rule 8.4(g)?

(4) A lawyer serving as an adjunct professor supervising a law student in a law school clinic made repeated comments about the student’s appearance and also made unwelcome, nonconsensual physical contact of a sexual nature with the student. Would this conduct violate Rule 8.4(g)?

(5) A partner and a senior associate in a law firm have been tasked with organizing an orientation program for newly-hired associates to familiarize them with firm policies and procedures. During a planning session, the partner remarked that: “Rule #1 should be never trust a Muslim lawyer. Rule #2 should be never represent a Muslim client. But, of course, we are not allowed to speak the truth around here.” Do the partner’s remarks violate Rule 8.4(g)?

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Again, the answers are towards the end of the new ABA Formal Opinion.

 

 

 

 

 

 

 

The $67 million pair of pants that resulted in a 90-day license suspension.

These days, if a day ends in “y,” it feels like I’m giving another CLE.  At each, I’ve been reminding lawyers of the importance of communicating reasonable expectations to the client at the outset of the client-lawyer relationship.  Alas, I’d never stopped to consider how that might apply to a lawyer who self-represents.  Which brings me to today’s post.

I’ve never forgotten a piece of advice that the Dean of GW Law School gave to my incoming 1L class.  It went something like this:  “as you read the cases, yes, pay attention to the legal analysis.  But never lose sight of the crazy disputes that people find themselves in.  Your job will include advising them to drop or resolve those disputes.”

Indeed! The duty to competently communicate candid legal advice.

Anyhow, today I post to update you on a matter that I’ve been following a few years.  I’ve long wondered if it would result in a Was That Wrong? post.  It didn’t, but only because I reserve that column for disbarments. Nevertheless, the conduct at issue is definitely wrong.

As reported by the ABA Journal, the Legal Profession Blog, and others, a lawyer in D.C.  has been suspended for 90 days because of conduct associated with his relentless pursuit of his dispute with a dry-cleaning business.  The D.C. Court of Appeals order imposing the suspension is here.  I’m not sure I can do it justice, but I’ll do my best.

Many years ago, the lawyer dropped off a pair of pants at the dry cleaner.  He alleges that when he returned, the dry cleaner had lost the pants and tried to give him pants that were not his.  The lawyer demanded $1,150.

Now, I’ve never paid that much for pants, but nor have I ever worked in D.C.  So, who knows?

Alas, by the time the lawyer sued the dry cleaner, he sought $15,000 in compensatory damages for emotional distress and $45,000 in punitive damages.  Some of his legal theories were premised upon the fact that the dry cleaners had hung a sign that said, “Satisfaction Guaranteed” and that he’d been left far from satisfied.

As the case proceeded, the lawyer’s monetary demands skyrocketed.  Here’s an excerpt from the Court’s opinion:

• “His claims for emotional damages increased to $3,000,000 by trial.  He asserted that he was entitled to $90,000 to obtain a rental car so he could travel to a different dry cleaner in the city.  He claimed that he had expended 1,200 hours of work on the matter, worth $500,000 in attorney’s fees.  He sought prospective relief requiring [the defendants] to pay him $10,000 within twenty-four business hours if he notified them that they were not providing him with acceptable service.”

Then, after a summary of the lawyer’s various claims as to why the damages should be multiplied, the kicker:

• By the time the Joint Pre-Trial Statement was filed, [the lawyer] claimed that he was owed more than $67,000,000 in compensatory and punitive damages.”

Remember: he’d dropped off ONE pair of pants.

After rejecting a $12,000 offer of judgment, the lawyer lost at trial.  His appeal was not successful.

An interesting aside: the record suggests that, in fact, the dry cleaners did not lose the pants! Indeed, from one of the many opinions issued along the way:

• “The Court found [the dry cleaner] to be very credible, and her explanation that she recognized the disputed pants as belonging to [the lawyer] because of the unusual belt inserts was much more credible than his speculation that she took a pair of unclaimed pants from the back of the store and altered them to match his measurements.”

Anyhow, in the end, the DC Court of Appeals suspended the lawyer’s law license for 90 days after concluding that he violated the rules that prohibit the pursuit of frivolous claims and conduct that is prejudicial to the administration of justice.

All over a pair of pants.  I can’t help but think that this story is exactly what Dean Friedenthal meant when he gave the advice that he did to my incoming class.  And it might also both illustrate and reinforce the long-held notion about lawyers who represent themselves.

Negative Online Review? How not to respond.

Whether here or at CLEs, I’ve often mentioned the perils of responding to a former client’s negative online review. As reported by the ABA Journal and Legal Profession Blog, here’s another example of what not to do.

Last week, the New Jersey Supreme Court suspended a lawyer for 1-year for violating several rules, including the Garden State’s rule that prohibits a lawyer from using information relating to the representation to a former client’s disadvantage unless the information has become “generally known.”  The underlying decision of the Disciplinary Review Board is here.

Now, the sanction resulted from multiple violations committed while representing multiple clients. In other words, the lawyer’s response to the negative online review wasn’t the sole basis for the 1-year suspension.  Still, the opinion serves as important reminder that, whether you agree with the rule or the interpretation thereof, it is well-established that information that is “public record” is not necessarily “generally known.”

Before I share the facts of the NJ case, let’s look at Vermont’s rule. It’s V.R.Pr.C. 1.9(c)(1):

“(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

(1) use information relating to the representation to the disadvantage of the former client except as these rules would permit or require with respect to a client, or when the information has become generally known.”  (emphasis added).

As reported by the ABA Journal, the New Jersey lawyer “had won unsupervised visitation for the client after she took her children to another state without authorization, ‘seemingly, a good result,’ according to the review board.”  Nevertheless, the client posted a negative online review regarding the lawyer’s services.

The client owns a massage therapy business.  Miffed at the review the client had left for him, the lawyer posted the following Yelp review of the client’s business:

• “Well, [client] is a convicted felon for fleeing the state with children. A wonderful parent. Additionally, she has been convicted of shoplifting from a supermarket. Hide your wallets well during a massage. Oops, almost forgot about the DWI conviction. Well, maybe a couple of beers during the massage would be nice.”

In response to the subsequent ethics complaint, the lawyer wrote:

• “As to the Yelp rating about [client’s] massage therapy business, I admit to same. I was very upset by [her] Yelp rating of my practice. This rating was made more
  than a year and a half after the conclusion of my representation. My disclosures, i.e. her arrests, were public information and I did not violate attorney client
  privilege. My position was that what was good for the goose was good for the gander. I do concede that I do not believe that the rating was my finest moment.
  However, it was not unethical. That posting has subsequently been taken down.”

Long story short, the Disciplinary Review Board disagreed that it wasn’t a violation.  Citing to ABA Formal Opinion 479 and a few court decisions, the Board concluded that the lawyer’s review of the former client’s business violated the rules because the information, “although publicly available, was not generally known.”

As I’ve said before, and as my dad told me as a kid, when it comes to client confidences, lawyers would be well-served to remember this quote:

“You will have many opportunities
to keep your mouth shut.
You should take advantage
of every one of them.”
—Thomas Edison—

Related Posts

• Negative Online Review? Restrain Yourself
• Hey Lawyers: STFU!!
• ABA & Client Confidences: It’s Deja Vu All Over Again
• Can’t Keep Quiet? Try Harder

 

 

 

 

 

 

 

Five for Friday #203

Happy Friday.

I wasn’t going to post a quiz this week but changed my mind about 2:00 PM.  Long story short, I love this column, but wonder about its on-going viability.  For now, however, it will continue.  Maybe by video!

In fact, today’s intro is available ONLY by video.  It’s here.  In it, I share why I thought of retiring the quiz, why I’m not going to, and how the week’s number – 203 – factored into my thought process. If you want to sit in the stool, let me know! Oh, and at the end, I go through the questions.

In a fantastic coincidence – in the video, I mention that my favorite part of the Friday blog is the connection that it has allowed me to forge with readers. I LOVE when a story of mine causes you to share one of yours.  On that note, I finished recording the intro about 20 minutes ago, but hadn’t posted the blog yet.  Regular readers know that I’m a Taylor Swift fan.  Unknown to me, she just announced a live performance.  That is, unknown to me until a few minutes ago when a regular reader emailed me to alert me to the show!

Proof that the connections forged via the Friday posts are too valuable to let go.

If you’d prefer to skip the video and go straight to the questions, I’ll enable you and paste them in below.

Have a great weekend!

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
• Share on social media.  Hashtag it – #fiveforfriday

Question 1

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

Y = the number of years the rules require lawyers to maintain trust account records following the termination of the representation.

What is X * Y?

• A.  420
• B.  360
• C.  350
• D.  300

Question 2

What is the subject of the rule described here?

• must be in a writing, signed by the client.
• must be reasonable.
• prohibited in criminal cases.
• prohibited for securing a divorce.

Question 3

Below is my response to an inquiry.  It refers to one of the 7 C’s of legal ethics.  Which one?

• Your duty is to remonstrate with the client, take reasonable remedial measures including, if necessary, disclosure to the tribunal.

Question 4

When used properly, the phrases “lateral transfers” and “ACH transfers” are used when discussing the rules on:

• • A.  conflicts of interest
  • B.  trust accounting
  • C.  respectively: conflicts of interest & trust accounting
  • D.  normal people don’t use phrases like these

Question 5

On May 8, 1978, David Berkowitz, against the advice of counsel, pled guilty to a series of charges relating to 8 separate shootings that left 6 dead and 7 wounded.

In 1999, Spike Lee made a movie that focused on an Italian-American neighborhood in the Bronx.  The movie was set in 1977 and against the backdrop of Berkowitz’s crime spree, a sweltering heat wave, and the Yankees’ championship season.

What was the name that the press used to refer to Berkowitz?

Bonus: what was the name of the movie?

 

 

Emotional IQ: W.I.N.

It’s National Lawyer Well-Being Week.  Spurred by the joint efforts of the National Task Force on Lawyer Well-Being, the ABA’s Commission on Lawyer Assistance Programs, and the Well-Being Committee of the ABA’s Law Practice Division, the week’s aim “is to raise awareness and encourage action across the profession to improve well-being for lawyers and their support teams.”

Each day has a different theme.  Today’s theme is “Feel Well.”  The goal is to remind lawyers that our emotions impact wellness.  The specific topic is way outside my lane and one best reserved for the experts.  Still, I shared some thoughts in this video.  In particular, I believe that if we remember “what’s important now,” we’ll do well to increase our emotional health.

For resources from the experts, go here.