Five for Friday #96

Welcome to #96!

If you missed last week’s Thanksgiving-themed quiz, it’s here.

Over Thanksgiving, I binged on Manhunt: UNABOMBERThe title says it all: the show recounts the desperate search for The Unabomber.  It’s link to this column is that the FBI located & arrested Ted Kaczynski in 1996.

Now, let’s spend on second on “binged.”  In the preceding paragraph, I used it to mean that “over Thanksgiving, I ‘watchedManhunt: Unabomber.”   And I watched it like a normal person.  Meaning, I did other things in between episodes.  Like, get off the couch, eat, go outside, and reply to texts & calls.  Unlike seasons 1 and 2 of  The Fallboth seasons of Last Chance U, or my current experience with Harlen Coben’s The Five, Manhunt: Unabomber didn’t present the situation in which I’d watch an episode, check the time, convince myself “just one more tonight will be ok,” then wake up swearing at myself for watching one more one more until well after midnight. Still, it’s pretty good.

And it has several aspects that, I think, will appeal to lawyers.

I’d either forgotten or never known how the FBI tracked down Kaczynski.  The show’s main character is real-life FBI agent Jim Fitzgerald.  “Fitz” was a pioneer in the field of forensic linguistics.  Long story short, painstakingly poring over the Manifesto for years, and apparently without the help of a computer or algorithms, he used words to profile the Unabomber. There’s an interesting scene in which a federal judge has to decide whether a person’s language pattern – “idiolect” – can provide probable cause for a search.

Two other law-related aspects of the show interested me.  First, in one episode there’s a suggestion that the iconic sketch isn’t of Kaczynski at all, but a recalled memory of the sketch artist to whom the witness gave her original description.  If true, it’s (another) interesting comment on the reliability of eye-witness testimony.

The second actually ties into legal ethics.  Rule 1.2(d) makes it very clear that, in a criminal case, the client controls whether to plead, waive a jury trial, and testify.  The show recounts the tension between Kaczynski and his legal team regarding an insanity plea – his lawyer telling him that her duty was to save his life, Kaczynski responding that he’d rather die than plead insanity.  It reminded me of an issue that is pending before the U.S. Supreme Court – whether a criminal defense attorney can concede guilt over a client’s objection.

Ummm, I just got back to my laptop after re-filling my coffee and, now, don’t really remember where I going with this post.  Suffice to say, Manhunt: UNABOMBER is worth checking out.

Plus, I still haven’t fully thought out my inevitable post on East Coast v. West Coast.  When I do, it’ll be the final installment in my trilogy that, to date, includes Beatles v. Stones and Nirvana v. Pearl Jam.  So, even though Tupac was shot in ’96, I’ll have to work my whodunnit into the next episode.

Speaking of forensic linguistics, the preceding paragraph includes exceedingly valuable clues into my position in the East Coast/West Coast debate.

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

Fill in the blank.

Lawyer wonders whether a client’s agreement to waive a conflict complies with the rules.  Researching it, Lawyer learns that ___________________ “denotes a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostating, photography, audio or video-recording, and e-mail.”

  • A.   Informed consent
  • B.   Writing or Written
  • C.   Waiver
  • D.  Acceptance

Question 2

The word “remonstrate” appears in comments to ONE rule.  Which rule?

  • A.   Diligence
  • B.   Competence
  • C.   Advertising
  • D.  Candor Toward The Tribunal

Question 3

True or False:

If Attorney sues Client for a fee, Attorney cannot represent herself at trial if her testimony will be reasonably necessary to establishing the nature and value of the legal services that she rendered to Client.

Question 4

Attorney called me with an inquiry.  I listened, then replied “over 20 years ago, the rule was changed to make it clear that it not only applies to ‘parties,’ but to any person who is represented in the matter.”

Which rule?

Question 5

I am an actress.

On TV, my name is Rachel and I am a summer associate at a law firm.  For many years, I worked as a paralegal at the firm.  I wanted to go to Harvard Law, but never scored high enough on the LSAT.  Thanks to help & encouragement from one of the firm’s lawyers, I kept trying and, eventually, scored high enough to get into Columbia Law, which I’m currently attending.

The lawyer who helped me?  His name is Mike.  Some would say he’s no prince. When the firm hired him as an associate, he neglected to disclose that he had never gone to law school and wasn’t even really a lawyer.  But, what a guy! We fell in love and, now, on the show, we’re engaged.

In real life, I also just got engaged.  And not to some lawyer with a sketchy background.

Who am I?

the-quiz

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Client Confidences: Again, it’s the simple things.

Rules 1.1 and 1.6 impose a duty to act competently to safeguard against the inadvertent or unauthorized disclosure of information related to the representation of a client.  I’ve blogged often on encryption, cloud storage, and other tech issues that impact the duty.

But I’ve also blogged that the most recent sanctions involving Rule 1.6 have nothing to do with hackers or technology.  As I wrote:

“To wit: the last three sanctions for violations of Rule 1.6 in Vermont were imposed:

My guess is that far more lawyers have put information related to a representation at risk by leaving files or computers in restaurants or airport waiting areas than by sending unencrypted emails or storing information in the cloud.”

The lesson: don’t forget about the “simple” steps you can take to safeguard against the inadvertent disclosure of client information.

Indeed, over the past few months, simple steps may have allowed various lawyers to stay out of the news. For example, the lawyer for the President who could’ve used his “inside voice” at lunch. Or the Big Law lawyer who could’ve disabled autocomplete . . . and avoided sending confidential information to The Wall Street Journal.

Here’s the latest simple step to take to guard against disclosing confidential information: don’t give job applicants confidential information as part of the interview process.

As reported by the Legal Profession Blog and the ABA Journal, a Massachusetts lawyer was sanctioned for providing job applicants with confidential client information.  It appears as if the lawyer wanted to assess applicants’ writing skills and asked for memos based on actual cases being handled by the firm.

Oops.

Again, yes, issues related to the electronic transmission & storage of client information can be daunting.  But it’s often the failure to use simple common sense that leads to a violation of Rule 1.6

Shhh

Related posts:

 

 

Comment Period on Proposed Sex Rule Closes on December 18

In October, the Supreme Court published for comment proposed amendments to Rules 1.7 and 1.8 of the Vermont Rules of Professional Conduct.  The comment period closes on December 18.

The Court published the proposed rule upon the recommendation of the Professional Responsibility Board.  31 states specifically prohibit client-lawyer sexual relationships. Vermont does not.  At least 18 of Vermont’s other licensed professions have adopted rules that specifically ban sexual relationships between a licensee and a client, patient, or person with whom the licensee has a professional relationship.

The Board’s position is that the imbalance of power inherent in the professional relationship between lawyer and client necessitates an absolute ban on a sexual relationship between the two. The Board supports a “bright-line” rule that recognizes the serious risk to a client’s interest in receiving candid, competent, and conflict-free legal advice that is presented when the professional relationship turns sexual.

A quick summary:

  • Proposed Rule 1.8(j) adds a specific prohibition on sexual relations between a lawyer and client unless a consensual sexual relationship existed when the client-lawyer relationship commenced.
  • Proposed Comment [17] to Rule 1.8 clarifies that the rule applies to all sexual relationships formed after the commencement of the professional client-lawyer relationship, including consensual sexual relationships and sexual relationships in which there is no prejudice to the client’s interests in the matter that is the subject of the professional relationship. In such instances, a lawyer would have to withdraw from continued representation.  See, Rule 1.16(a)(1).
  • Proposed Comment [18] provides guidance on sexual relationships that pre-date the commencement of the client-lawyer relationship.
  • If adopted, the conflict created by Rule 1.8(j) is personal and not imputed to other lawyers in the firm.  See, Rule 1.8(k); Rule 1.10(a).

Comments can be emailed to me at michael.kennedy@vermont.gov

For further reading, here are my previous posts on the issue:

Ethics

Monday Morning Answers – Thanksgiving

Welcome to Monday! I hope everyone had a peaceful and relaxing holiday weekend.

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

Honor Roll

Answers

Question 1

Neal Page is a character in a movie that takes place over Thanksgiving.  Indeed, the movie is about Page’s attempt to get home for Thanksgiving.  Del Griffith is another character from the same movie.  Griffith is a shower curtain salesman.  They met in New York City and, eventually, arrived in Chicago via milk truck.

Here’s my imaginary scenario:

In connection with all civil & criminal claims that resulted from their travel adventures, Attorney represents Page and Lawyer represents Griffith.  Talk about complex litigation: depending on the matter, Page & Griffith find themselves as adversaries, co-plaintiffs, co-defendants, and co-victims.  We’re talking arson, credit card fraud, wrong-way driving, a hotel burglary, and an alleged assault on a taxi driver.

Both Attorney & Lawyer are competent, so they understand the value of visual evidence.  Here’s a picture that each used in one of the many trials that dealt with the fallout from their clients’ misadventures – your task, name the movie.

PTA MAP.gif

PLANES, TRAINS & AUTOMOBILES

Planes Trains & Automobiles

Question 2

Lawyer represents Client.  The issue: a dispute related to Opposing Party’s contractual right to slap Client, including whether a slap that took place on Thanksgiving should or should not count towards Opposing Party’s number of contractually allotted slaps.  The most critical witness – Lily, in her role as Slap Bet Commissioner.

Name the TV show.

How I Met Your Mother

Slapsgiving

Question 3

As friends, Monica and Rachel had some interesting Thanksgiving adventures.

One Thanksgiving, Monica invited Will Colbert to dinner.  I always wondered if Rachel ever talked to a competent lawyer about suing Monica for emotional distress. I mean, when they were kids, Will had founded the “I Hate Rachel” club!

Name the actor who played Will in the Thanksgiving episode.

Brad Pitt

Pitt Thanksgiving

Question 4

One Thanksgiving, Arlo and his friend Rick agreed to take some trash to the dump as a favor to some friends who had converted a church into a restaurant.  The dump was closed for the holiday, so they dumped the trash off a cliff.  The next day, they were arrested for littering.  Attorney was assigned to represent them.

Presumably, competent representation will require Attorney to interview the restaurant owner.

What’s her first name?

ALICE, from Alice’s Restaurant by Arlo Guthrie

Question 5

In a speech about Tater and Tot, a famous (and real) lawyer said:

“And it is my great privilege — well, it’s my privilege — actually, let’s just say it’s my job — to grant them clemency this afternoon. As I do, I want to take a moment to recognize the brave turkeys who weren’t so lucky, who didn’t get to ride the gravy train to freedom — who met their fate with courage and sacrifice — and proved that they weren’t chicken.”

Name the speaker.

President Barack Obama

Obama Turkey.jpg

Five for Friday – Thanksgiving

Hi all!  Here’s a #fiveforfriday that has no basis in reality, but is my attempt to provide some sort of connection between law, the rules of professional conduct, and Thanksgiving.

Rules – for this week

  • None.
  • 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

Neal Page is a character in a movie that takes place over Thanksgiving.  Indeed, the movie is about Page’s attempt to get home for Thanksgiving.  Del Griffith is another character from the same movie.  Griffith is a shower curtain salesman.  They met in New York City and, eventually, arrived in Chicago via milk truck.

Here’s my imaginary scenario:

In connection with all civil & criminal claims that resulted from their travel adventures, Attorney represents Page and Lawyer represents Griffith.  Talk about complex litigation: depending on the matter, Page & Griffith find themselves as adversaries, co-plaintiffs, co-defendants, and co-victims.  We’re talking arson, credit card fraud, wrong-way driving, a hotel burglary, and an alleged assault on a taxi driver.

Both Attorney & Lawyer are competent, so they understand the value of visual evidence.  Here’s a picture that each used in one of the many trials that dealt with the fallout from their clients’ misadventures – your task, name the movie.

PTA MAP.gif

Question 2

Lawyer represents Client.  The issue: a dispute related to Opposing Party’s contractual right to slap Client, including whether a slap that took place on Thanksgiving should or should not count towards Opposing Party’s number of contractually allotted slaps.  The most critical witness – Lily, in her role as Slap Bet Commissioner.

Name the TV show.

Question 3

As friends, Monica and Rachel had some interesting Thanksgiving adventures.

One Thanksgiving, Monica invited Will Colbert to dinner.  I always wondered if Rachel ever talked to a competent lawyer about suing Monica for emotional distress. I mean, when they were kids, Will had founded the “I Hate Rachel” club!

Name the actor who played Will in the Thanksgiving episode.

Question 4

One Thanksgiving, Arlo and his friend Rick agreed to take some trash to the dump as a favor to some friends who had converted a church into a restaurant.  The dump was closed for the holiday, so they dumped the trash off a cliff.  The next day, they were arrested for littering.  Attorney was assigned to represent them.

Presumably, competent representation will require Attorney to interview the restaurant owner.

What’s her name?

Question 5

In a speech about Tater and Tot, a famous (and real) lawyer said:

“And it is my great privilege — well, it’s my privilege — actually, let’s just say it’s my job — to grant them clemency this afternoon. As I do, I want to take a moment to recognize the brave turkeys who weren’t so lucky, who didn’t get to ride the gravy train to freedom — who met their fate with courage and sacrifice — and proved that they weren’t chicken.”

Name the speaker.

Turkey lawyer

 

 

 

Was That Wrong?

Don’t forget to send me your votes for Top 3 novels involving the law, a lawyer, or lawyers!

Now, I know it has only been a week since I posted a Was That Wrong?, but as they say, you’ve got to go where the evidence leads you.  Plus, for those of you for whom the next few days will include a daunting amount of time with family, today’s topic will likely serve as better conversation fodder than a more scholarly post – to the extent any of my posts can be described as “scholarly.”

As a blogger, this year I’m thankful for the lawyer who managed the impossible: multiple Was That Wrong? moments in a single disciplinary case.

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 continuing legal education seminar 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.

Today’s column involves a lawyer suspended for 4 months by the Wisconsin Supreme Court.  The order was reported by the ABA Journal, the Legal Profession Blog, and the Milwaukee Journal Sentinel.

Someday I hope to launch a YouTube channel tied to this blog.  When I do, I’ll adapt Was That Wrong entries to the screen.  Here’s how I envision scripting today’s:

  • Supreme Court:  We’re going to get right to the point.  It’s come to our attention that you smuggled two toothbrushes and some red pepper to a client who was in jail.
  • Lawyer:  Who said that?
  • Supreme Court:  The guards found the toothbrushes and red pepper inside a legal file that was in a bag your brought to the client.  In jail, toothbrushes can be converted in shanks & red pepper made into pepper spray.
  • Supreme Court: It has also come to our attention that you utterly failed to communicate with a different client.
  • Lawyer:  Who said that?
  • Supreme Court: The client did.
  • Supreme Court: And, finally, it has come to our attention that at the hearing on your failure to communicate with the client, you argued that the client called your office phone instead of your cell phone and, in any event, that you had regularly e-mailed him.
  • Lawyer:  Yes.
  • Supreme Court: He didn’t have an e-mail account.
  • Lawyer: Was all of this wrong? Should I have not done any of it? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started practicing 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 this stuff all the time.
  • Supreme Court:  4 month suspension.
  • Lawyer:  Well you didn’t have to say it like that.

costanza

 

Malcolm & Monday’s Answers

Good morning!

Friday’s questions are HERE.  I can confirm that Dave Carpenter finished the Philadelphia Half Marathon – and ran it while wearing his firefighting gear.  Great job Dave!

Before I get to the answers, I’d be remiss not to mention the passing of Malcolm Young. I often include musical references in my blog posts, in particular in the #fiveforfriday legal ethics quizzes.

It’d be a violation of Rule 4.1 for me to tell you that I am a huge fan of AC/DC. However, it’s not a violation to state that I’m a huge fan of the Back in Black album.  Personally, I think the B-side is the best B-side of any rock album.  Also, the album played an important role in my music fandom.

Last night, I confirmed with the First Brother that Back in Black was the first album that either of us bought on our own.  Before snagging it at a flea market at our elementary school, we’d been confined to our parents’ albums (and 8-tracks).  I don’t think either of us will ever forget (or regret) learning every word to each of The Mamas & The Papas greatest hits.  Nevertheless, Back in Black marked the beginning of our passage to musical adulthood.

Malcolm – if there’s a bar wherever you are, have a drink on me.

acdc-back-in-black

Oh yeah, don’t forget to send me your votes for the top 3 novels that focus on the law, a lawyer, or lawyers!

Onto the answers!

Honor Roll

Answers

Question 1

Attorney called me with an inquiry. I listened, then said “your only duty under the Rules of Professional Conduct is to notify the sender that you received it.”

Most likely, then, Attorney called me to discuss the receipt of:

  • A.   A wire transfer.
  • B.   Information that Attorney knows was inadvertently sent or produced.  See, Rule. 4.4(b)
  • C.   A subpoena to testify about a former client.
  • D.  A request to deliver a former client’s file to a new attorney.

Question 2

By rule, two words have to be on a certain type of communication from lawyers.  What are the 2 words?

  • A.  “Advertising Material.”  See, Rule 7.3(c).
  • B.  “Of Counsel.”
  • C.   “Confidential Information.”
  • D.   “Privileged Information.”

Question 3

True or false: the rules prohibit a lawyer from serving as a director, officer or member of a legal services organization (other than the lawyer’s firm) that serves persons having interests adverse to a client of the lawyer.

False.  Rule 6.3.

Question 4

Lawyer represents Client.  Opposing Party is not represented by counsel.

Lawyer and Opposing Party negotiate a resolution that must be reduced to writing.  Lawyer prepares the document and presents it to Opposing Party for signature.  Opposing Party asks “what do you think it means if I sign this?”

Which is most accurate?

  • A.   Lawyer may not respond other than to say “I can’t give you any advice.”
  • B.   Lawyer must advise Opposing Party to contact an attorney for advice.
  • C.   Lawyer may not go through with the resolution until Opposing Party has been given a reasonable period of time to contact an attorney for advice.
  • D.  Lawyer may explain her own view of the meaning of the document, as well as her view of its underlying legal obligations.

Maybe this was poorly phrased.  But, “D’ is correct under the rule.  It’s Rule 4.3. The key langauge is in the final sentence of Comment [2]: “So long as the lawyer has explained that the lawyer represents and adverse party and is not representing the person, the lawyer may inform the person of the terms on which enter into an agreement or settle a matter, prepare documents that require the person’s signature and explain the lawyer’s own view of the meaning of the document or the lawyer’s view of the underlying legal obligations.” (emphasis added).

B is not correct.  The rule does not mandate Lawyer to advise Opposing Party to contact an attorney for legal advice. Rather, IF Lawyer gives any advice, the only advice she may give is to seek legal advice.

Question 5

Who am I?

In 2011 and 2014, I won the Emmy for Outstanding Actress in a Drama.  I won for a role in which I played a lawyer who, among other things, graduated at the top of her law school class despite a penchant for falling asleep in class.  In the very first episode, viewers learned the my husband, a state prosecutor, had been jailed for his part in a sex & corruption scandal.

But what would this question be without a connection to 1995?

Back then, I didn’t play a lawyer.  Rather, I played a nurse.  But even back then, I did it well.  In 1995, I won the Emmy for Outstanding Supporting Actress in a Drama.

Interestingly, in TV world, I didn’t have to move.  As both a nurse & lawyer, I worked in the same city.

Again, who am I?

Julianna Margulies.   In 2011 & 2014, I won for my role as Alicia Florrick on The Good Wife.  In 1995, I won for my role as Carol Hathaway on ER.

 

 

 

Five for Friday #95

Welcome to #95!

95 doesn’t remind me of the year.  Nor does it remind me of a movie, a band, a singer, or an athlete who wore the number.

For whatever reason, the first thing that jumps to mind when I think of 95 is how miserable I am whenever I’m driving down Interstate 95.  Whether driving to and from law school when I was at GW, or driving from D.C. to my dad’s & other points south, I’ve never liked it.  And one of my least favorite sections of I-95 is the part around Philly.  So,  naturally, as I contemplated the number 95 for this column, my thoughts soured.

But they picked up yesterday when I heard from a fellow lawyer — more on him later – who is heading to Philadelphia this weekend to run the Philadelphia Half Marathon. Folks, in my opinion, besides the Vermont City Marathon, which will always remain #1 in my heart, there’s no better marathon or half marathon than Philly.

For one, it’s usually perfect running weather – not too hot, not too cold.  For another, there’s an 8K on Saturday, with the half & full on Sunday. Most marathoners go for a short run the day before a race – might as well get a medal for doing so!  Also, besides being nice & flat, the course is a virtual run through history.  Check out some of the sites that runners pass along the way.  Finally, the marathon starts & finishes at the Philadelphia Museum of Art.

What’s this? Mike is writing about art museums?

Come on people, of course I am! I’m way more than pop culture & sports.

Ok, maybe I”m not.

Check out the picture on the marathon’s home page.  Recognize the museum now?

The Rocky Steps!

Rocky Steps

Anyhow, I’ve run Philly twice: the full in 2011, the half last year.  Here’s a close-up of my medal from 2011.  Check out the race motto:

Medal.jpg

Best:Time Of Your Life.

Very clever Philly! Even the italics & colon to make it look like a race result. For example, 3:28.25.  I remember chuckling at the slogan when I picked up my bib & shirt the day before the race. I wasn’t chuckling on race day itself.  T

Things went haywire somewhere around Mile 20.  I was overheated, dehydrated, exhausted and, for a few minutes, so confused that I wondered if I was lost.  That’s correct: surrounded by thousands of other runners all headed in the same direction as me – which entailed shuffling along a street lined by thousands of fans on each side — I momentarily thought I was lost!

When I came to my senses, I said to myself “Best of Time of Your Life my ass!!!”

Still, I continue to love to run.  It’s an important outlet.

Now, back to the lawyer who is running Philly this weekend.

A few weeks ago, I posted a blog in which I encouraged lawyers to take time to do non-lawyerly things.  Here’s what I wrote:

Winter is long.  Darkness can be tough.  And, as the numbers show, we’re a profession that struggles to cope with stress, anxiety, substance abuse and mental health issues.  We must promote wellness and work-life balance, and we must encourage lawyers to make time for what matters.  In other words, let’s focus on ensuring that light shines in our personal & professional lives.

I even asked for pictures of you doing non-lawyerly things, as proof that it’s possible to let the light shine in.

Dave Carpenter is a lawyer at Facey Goss McPhee and a member of the VBA Board of Managers.  He is also a firefighter and the chair of Orwell’s Volunteer Fire Department.  On Sunday, Dave is going to run the Philadelphia Half Marathon . . . in his firefighter gear!

He’s done it before:

Dave Carpenter 1

Dave Carpenter 2

Dave – congrats, good luck, and great example of #lawyerlight!

If any of you find yourself in the Philly area, make sure to check out Lucky’s Last Chance. I’m a fan of the one in Manayunk.  It’s right about mile 20 of the marathon.  Fantastic burgers.

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

Attorney called me with an inquiry. I listened, then said “your only duty under the Rules of Professional Conduct is to notify the sender that you received it.”

Most likely, then, Attorney called me to discuss the receipt of:

  • A.   A wire transfer.
  • B.   Information that Attorney knows was inadvertently sent or produced.
  • C.   A subpoena to testify about a former client.
  • D.  A request to deliver a former client’s file to a new attorney.

Question 2

By rule, two words have to be on a certain type of communication from lawyers.  What are the 2 words?

  • A.  “Advertising Material.”
  • B.  “Of Counsel.”
  • C.   “Confidential Information.”
  • D.   “Privileged Information.”

Question 3

True or false: the rules prohibit a lawyer from serving as a director, officer or member of a legal services organization (other than the lawyer’s firm) that serves persons having interests adverse to a client of the lawyer.

Question 4

Lawyer represents Client.  Opposing Party is not represented by counsel.

Lawyer and Opposing Party negotiate a resolution that must be reduced to writing.  Lawyer prepares the document and presents it to Opposing Party for signature.  Opposing Party asks “what do you think it means if I sign this?”

Which is most accurate?

  • A.   Lawyer may not respond other than to say “I can’t give you any advice.”
  • B.   Lawyer must advise Opposing Party to contact an attorney for advice.
  • C.   Lawyer may not go through with the resolution until Opposing Party has been given a reasonable period of time to contact an attorney for advice.
  • D.  Lawyer may explain her own view of the meaning of the document, as well as her view of its underlying legal obligations.

Question 5

Who am I?

In 2011 and 2014, I won the Emmy for Outstanding Actress in a Drama.  I won for a role in which I played a lawyer who, among other things, graduated at the top of her law school class despite a penchant for falling asleep in class.  In the very first episode, viewers learned the my husband, a state prosecutor, had been jailed for his part in a sex & corruption scandal.

But what would this question be without a connection to 1995?

Back then, I didn’t play a lawyer.  Rather, I played a nurse.  But even back then, I did it well.  In 1995, I won the Emmy for Outstanding Supporting Actress in a Drama.

Interestling, in TV world, I didn’t have to move.  As both a nurse & lawyer, I worked in the same city.

Again, who am I?

 

 

 

 

 

 

 

Confidences, Conflicts & Electronically Stored Information

To answer ATCQ, this is the scenario:

  • Lawyer works at Firm and represents Kennedy.
  • No other attorney at Firm works on Kennedy’s matter.
  • Lawyer leaves Firm.
  • Kennedy decides to go with Lawyer.
  • Firm sends hard copy of Kennedy’s file to Lawyer.

Ok.  That’s the easy part and isn’t very complicated.  Since easy & uncomplicated make for boring blogs, let’s add this:

  • Lawyer represents Kennedy in matter against Brady.
  • Brady seeks to retain Firm.
  • Kennedy v. Brady is the same or substantially related to a matter in which Lawyer represented Kennedy while working at Firm.

Can Firm represent Brady?

The fact that the matter is the same or substantially related to a matter in which Lawyer represented Kennedy while working at Firm does not end the analysis.  Nor does the fact that Firm delivered the paper file to Lawyer.

Rule 1.10 applies.  Subsection (b) says:

  • “When a lawyer has terminated association with a firm, the firm is not thereafter prohibited from representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless:
    • (1) the matter is the same or substantially related to that in which the formally associated represented the client; and,
    • (2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter.”

In the hypo, Firm will argue that none of its lawyers has information protected by Rules 1.6 and 1.9(c) because (1) none of them worked on Kennedy matters; and, (2) Firm delivered the file when Lawyer left.

But do they?

What if an electronic version of Kennedy’s file (or a portion of thereof) remains on Firm’s servers?  If the information is “material” to the matter, does Firm “have” that information as contemplated by Rule 1.10(b)?

Here’s an opinion from New Jersey.  The answer is “maybe.”  Essentially,  the court said that Firm “has” the information if a remaining lawyer has actual knowledge of the information and has accessed substantive portions of the electronic file.  The court, however, indicated that limited access made to investigate a potential conflict is not necessarily disqualifying.

If you’re interested, give the opinion a read.  Also, to avoid this dilemma, it might be worth a self-assessment as to how your firm handles electronically stored information when clients follow a departing lawyer.

By the way, if you missed it yesterday, here are the results of the poll question: Who is on your Mt. Rushmore of U.S. Supreme Court justices?  The post includes this week’s question: your top 3 fiction novels focused on the law or a lawyer/lawyers.

Laptop-and-computer-file-folders

 

 

WSYW: SCOTUS Mt. Rushmore

Last week’s edition of What Say You Wednesday asked for your Mt. Rushmore  of U.S. Supreme Court justices.  The results are in.  Alphabetically:

Braindeis

Marshall

imarsth001p1

Warren

 

Others who received votes:  William Brennan, Benjamin Cardozo, William O. Douglas, Oliver Wendell Holmes, Jr., Anthony Kennedy, Sandra Day O’Connor, Clarence Thomas

This week’s #WSYW: your top 3 novels (fiction) focused on the law or a lawyer/lawyers.