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

CCBA Champs Choose COTS

Earlier today, Halvorson’s was the site of the 4th (or 5th, or something like that) Annual Chittenden County Bar Association Legal Ethics Pub Quiz.  CCBA members gathered under sunny skies on the back porch, with Church Street’s sounds of cool jazz giving way to a hotly contested quiz.

Why so hotly contested?  For the first time ever, participants were encouraged to donate to a prize pool, with the pool donated to the charity of the winning team’s choice.  Teams battled thru 6 rounds of 10 questions each.

Without further adieu, congratulations to the team of Kampmann, Sussman, Nolan &  Griffin!

KSNG claimed the crown with an impressive total of 56 points.  Then, Maryanne Kampmann, Rob Sussman, Craig Nolan, and Aimee Griffin selected COTS as the recipient of the $256 prize pool.

Thank you Aimee, Maryanne, Rob, and Craig….thank you CCBA…thank you Halvsorson’s……and thank you to the folks at the Committee on Temporary Shelter for all that you do for Vermont’s homeless and marginally housed.

Halvorson's

Was That Wrong? The Ethics Monster

Was That Wrong is a semi-regular column on Ethical Grounds. The column features stories of the absurd & outrageous from the world of legal ethics and attorney discipline. My aim is to highlight misconduct that I hope you’ll instinctively avoid without needing me to convene a CLE that cautions you to do so.

The column is inspired by the “Red Dot” episode of Seinfeld. In the episode, George Costanza has sex in his office with a character known only as “the cleaning woman.”  His boss finds out.  Here’s their ensuing exchange :

(Scene) In the boss’ office.

  • Boss: I’m going to get right to the point. It has come to my attention that you and the cleaning woman have engaged in sexual intercourse on the desk in your office. Is that correct?
  • George: Who said that?
  • Boss: She did.
  • George: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, you know, cause I’ve worked in a lot of offices and I tell you people do that all the time.
  • Boss: You’re fired.
  • George: Well you didn’t have to say it like that.

The full script is HERE.  The scene is HERE.

The latest installment comes from the Ohio Supreme Court’s decision in Cleveland Metroplitan Bar Association v. Donchatz.  I don’t know how to categorize the misconduct as anything other than “you can’t make this stuff up.”

Here’s how I imagine I might script it if I ever write my own legal ethics knockoff of Seinfeld’s “Red Dot” episode.  By way of background, and since it’s not in the Ohio Supreme Court’s decision, the recommendation from a panel of the Ohio Board of Professional Conduct noted that the respondent used to be a disciplinary prosecutor and, when in private practice, billed himself as “The Ethics Monster.”  Recommendation, paras. 8 & 71.

  • Court:  We’ll get right to the point.  It has come to our attention that a tree company sued you for an unpaid bill.  A default judgment issued against you.  Even though you did not pay the judgment, you filed a notice of satisfaction of judgment.  Then, you did not withdraw the notice when asked to do so.
  • Lawyer:  Who said that?
  • Court:  Sorry, there’s more.  It’s also come to our attention that you sued a former client for unpaid legal fees.  A mediation session did not resolve the dispute. Nonetheless, you filed a “stipulated entry & consent judgment.”  The court approved it and entered judgment in your favor. Counsel for your former client reminded you that no agreement had been reached and asked you to withdraw the stipulated entry of judgment. You did not, and informed counsel that it would constitute (1) defamation for counsel to file an ethics complaint against you, and (2) a fraud upon the court for counsel to ask the court to vacate the judgment.
  • Lawyer:  Again, who said that?
  • Court:   The person who holds a job just like one that you used to have.
  • Lawyer:  Was that wrong?  I tell you, I gotta plead ignorance on this thing because if anyone had said anything to me at all when I was first licensed . . .
  • Court:  Suspended indefinitely.
  • Lawyer:  Well, you didn’t have to say it like that.

costanza

I think this gives new meaning to the term “Ethics Monster.”

 

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

 

Five for Friday: Beatles v. Stones

Welcome to Five for Friday!

Before the quiz, I am compelled to address my readers who have The Beatles on their brains.

Several contacted me this week to ask if the pop culture slant to #fiveforfriday would honor today’s 50th Anniversary of The Beatles U.S. release of Sgt. Pepper’s Lonely Hearts Club Band.

It will, but for reasons you’d never guess.

As should be obvious to long-time readers, I grew up a Stones fan. In my mind, the bands are Red Sox & Yankees, Sharks & Jets, Edward & Jacob.  I’ve adhered to the code of rivalries, rarely, if ever, playing a Beatles 45, 33, cassette, or CD.  I certainly have never downloaded a single of their songs, a boycott that dates to my days as what felt like the only Gen X kid without the obligatory poster of the Abbey Road album cover hanging in his dorm room.

I often blog about Rule 1.1’s duty of competence.  Six months after The Beatles released Pepper, the Stones released Their Satanic Majesties Request.  Terrible album!  Mick and company probably violated the rock equivalent of Rule 1.1 by trying to sound like the Beatles on Pepper.  Fortunately, the Stones quickly returned to their roots.

In order, their albums that followed Satanic Majesties:

Are you f’ing kidding me?!?! Hammer don’t hurt ’em!

So, 70 years after Sgt. Pepper taught the band to play, thank you Beatles for setting the Stones on the path to the most competent run of album releases in recorded history! With “competent” meaning “spectaculary fantastic.”

On to the quiz!

Rules

  • There are none. Open book, open search engine, text a friend. Use whatever resource you want. Reading the rules is a good thing!
  • Exception: Question 5.  We try to play that one honest.
  • Team entries welcome! Creative team names even more welcome!
  • Please share the quiz, even on social media  #fiveforfriday
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Please e-mail answers to michael.kennedy@vermont.gov Please do not use the “comment” feature to send your answers.
  • I will post the answers and Honor Roll on Monday
  • Might not be valid at all locations. All terms & conditions apply.  Void in AK and HI.

Question 1

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

  • A.  Prosecutors
  • 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
  • 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.

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?

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?

Stones

 

 

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!

PRP Discusses Bias & Discrimination

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 first seminar used the proposed amendment to Rule 8.4(g) as a launching point into a discussion of bias, discrimination, and legal ethics.  The audience heard from a fantastic panel of Vermont lawyers:

  • Karen Richards, Executive Director of the Vermont Human Rights Commission,
  • Jay Diaz, Staff Attorney at the ACLU of Vermont, and,
  • Dan Maguire, President-Elect of the Vermont Bar Association’s Board of Managers

Using real-life experiences and studies on racial & implicit bias, the panel challenged the audience to consider:

  • the biases that can influence hearing & assistance panel members as they sit on cases;
  • the biases that can influences lawyers, witnesses, judges, and jurors; and,
  • whether Rules 1.1 and 1.3 impose a duty to advise a client on the biases that can influence lawyers, witnesses, judges, and jurors involved in the client’s matter.

After hearing from the panel, many in the audience urged the Board to support the proposed amendment to Rule 8.4 and to commit the PRP to continue as part of the larger effort to educate on the topic of implicit bias.

Karen, Jay, and Dan – thank you so much for sharing your time, thoughts, and expertise with members of the PRP!