Monday Morning Answers #213

Welcome to another week! Friday’s questions are here. Today’s answers follow the Honor Roll.

No, the Clemson Tigers did not win Saturday night.  To my Notre Dame friends, enjoy Round 1. I look forward December 19!

Honor Roll

• Penny Benelli, Dakin & Benelli
• Andrew Delaney, Martin Delaney & Ricci Law Group
• Erin Gilmore, Ryan Smith & Carbine
• Robert Grundstein, Esq.
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Jeanne Kennedy, JB Kennedy Associates, Blogger’s Mom
• John Leddy, McNeil Leddy & Sheahan
• Pam Loginsky, Washington Association of Prosecuting Attorneys
• Jack McCullough, Project Director, Mental Health Law Project
• Jeffrey Messina, Bergeron Paradis Fitzpatrick
• Herb Ogden, Esq.
• Jonathan Teller-Elsberg, Hershenson, Scott, Carter & McGee
• Lucia White, CP, Nanci Smith Law
• Thomas Wilkinson, Cozen O’Connor

Answers

Question 1

There’s only one thing that the Rules of Professional Conduct require a lawyer to keep for a definite period following the termination of a representation.  What is it?

•  A.  a client’s confidences: 6 years.
•  B.  a copy of the client’s file: 7 years.
•  C.  a copy of the advertisement that led the client to the lawyer: 2 years.
• D.  Records of any funds held in trust for the client: 6 years.  V.R.Pr.C. 1.15(a)(1).

Question 2

Which word or phrase is associated with a different rule than the others?

• A.  knows or reasonably should know that the person misunderstands the lawyer’s role.
• B.  shall correct the misunderstanding.
• C.  without the consent of the person’s lawyer.
• D.  not give any advice, other than the advice to seek counsel.

A, B, and D are associated with V.R.Pr.C. 4.3, the rule that sets out a lawyer’s duties when dealing with an unrepresented person.  Thus, C is correct. The phrase appears in V.R.Pr.C. 4.2, the rule that prohibits communication on the subect of the matter with a person that the lawyer knows to be represented in the matter, with the consent of the person’s lawyer or otherwise authorized by law or court order.

Question 3

This is true: there is a rule that prohibits a lawyer from disbursing against a deposit to the trust account until the deposit has cleared and become “collected funds.”

True or false? In Vermont, there are no exceptions to the rule.

False.  The exceptions appear in V.R.Pr.C. 1.15(h).

Question 4

Which is most accurate?  The Rules of Professional Conduct impose a duty to  _______:

• A.  Encrypt email.
• B.  Encrypt a client’s electronically stored information in transit.
• C.  Encrypt a client’s electronically stored information at rest.
• D.  Act competently to safeguard client information, including by taking reasonable precautions to prevent against the inadvertent disclosure of or unauthorized access to client information.  See, V.R.P.C. 1.1, Comments 16 & 17.  Also, this blog post: Is there a duty to encrypt email?

 Question 5

I botched it by not asking this last Friday.  Anyhow, on October 30, a famous actor turned 75.  For five seasons, the actor played one of my favorite ethically challenged lawyers: Arrested Development’s Barry Zuckerkorn.  Of course, Zuckerkorn is not to be confused with the acting coach that the same actor plays in Barry and for which he won the 2018 Emmy for Outstanding Supporting Actor.

Readers of an earlier vintage might know the actor better for his Emmy-winning performances on a 1970’s sitcom. Per his Wiki page, on that show, he played “a greaser who became the breakout character.”

Whose 75^th birthday did I miss last Friday?

Henry Winkler

Five for Friday #201

Welcome to Friday!

As usual, much of my Thursday night involved pondering Friday’s post.  I settled on converting “201” into “two of one.”  It eventually led to the recommendation I’m going to make for your weekend.  But first, let me explain the “two of one” construct.

Ozark is a good example.  Of the shows I’ve binged, re-binged, and re-re-binged over the past 7 weeks, Ozark is my favorite. When Season 3 dropped, I re-watched Season 2 to remind myself what had happened.  There it is: 2 seasons of 1 show.  Two of one.

I don’t know how y’all stream, but I’m monogamous. Whatever show I’m into, until I’ve made it through the entire show, it’s the only show I watch.

Confession: I stepped out on Ozark, Season 3. 

Bored, I thought it’d be fun to alternate episodes of Ozark with episodes of another of my all-time favorite shows, Arrested Development.  For those of you who don’t know, Jason Bateman stars in each.  Apparently more addled with the fog & malaise of the times than I’d realized, it’s disturbing how easily entertained I was as I interspersed the shows. No joke: I laughed out loud picturing Michael and the Bluth family laundering money for the cartel while Marty Byrde makes Charlotte run The Banana Stand for the summer.

Anyhow, two shows starring Jason Bateman.  Two of one.

My “two of one” also includes music.

I could put the concert version of “The Weight” by The Band on repeat, stream it to the speakers in the Garage Bar, and listen all night.  During the pandemic, however, I’ve been mesmerized by the cover of “The Weight” that Robbie Robertson, Ringo Starr, and many others did for Playing For Change.  They released the video last September, long before we’d ever heard of the coronavirus.  I didn’t discover it until late March.  I’m fascinated by the extent to which the video feels like social distancing, and how it reflects our current use of technology to generate a sense of togetherness during a global crisis.

Anyhow, two versions of “The Weight.”  Two of one.

I’ve blathered long enough. Here’s my recommendation for the weekend.

Literally and figuratively, every single one of us could use a sunny day.  Well, if a “sunny day” can be reduced to a single thing, we’re about to get two of that thing. Two of one.  Whatever it is that you do to find peace, love and happiness on a sunny day, I hope you do it (safely) this weekend.

Keep rowing folks.  Happy Days are ahead.

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

How many hours of pro bono legal services do the Rules suggest a lawyer should provide each year?

• A.   50, and the rule applies to all lawyers.
• B.   50, but the rule exempts government lawyers.

Question 2

I often mention “7 Cs of Legal Ethics.”  Each is a single word that begins with the letter “C.”  The construct is a helpful tool to remember the basics.

Anyhow, there is a rule that includes an exception that allows a lawyer to do something otherwise prohibited in order “to establish a claim or defense . . . .in a controversy between the lawyer and client.”

What is the “C” associated with the rule?

Question 3

In Vermont, a lawyer has a duty to take reasonable remedial measures upon learning that a client or witness called by the lawyer has offered material evidence that is false.  Per the applicable rule, this includes, if necessary, disclosure to the tribunal.  By rule, how long does the duty continue?

• A.  until the lawyer is allowed to withdraw.
• B.  until the conclusion of the proceeding.
• C.  forever.
• D.  Trick question.  There is no circumstance in which a lawyer is authorized to inform a tribunal that a client submitted false evidence, even if the evidence was material.

Question 4

Former Client contends that Attorney committed malpractice.  They meet.  Former Client is not represented.  Former Client and Attorney discuss a settlement.

By rule, what must Attorney do before settling?

• A.  advise Former Client in writing of the desirability of seeking independent legal advice related to the matter.
• B.  give Former Client a reasonable amount of time to seek independent legal advice related to the matter.
• C.  stop settlement discussions because lawyers are prohibited from settling malpractice claims with former clients who are not represented by counsel.
• D.  A and B.

Question 5

Speaking of Arrested Development, the show includes 3 of my favorite fictional attorneys. Julia Louis-Dreyfuss appeared in a handful of episodes as Maggie Lizer, an ethically challenged prosecutor.

The other two attorneys are Barry Zuckerkorn and Bob Loblaw.  The former struggles with the duty of competence, while the latter runs the greatest blog in the history of blogs: The Bob Loblaw Law Blog.  Here’s Zuckerkorn’s business card.   For the question that follows, it’s literally the second biggest hint in the history of hints, behind only the hint in the introduction to the quiz.

Arrested Development debuted in 2004.  However, the actors who play Zuckerkorn and Loblaw also appeared together in a popular comedy that debuted in 1974.  Name that show that debuted in 1974.

 

 

 

 

Monday Morning Answers

I’m not messing around this morning.  Last week’s quiz is HERE. The answers follow the Honor Roll.

HONOR ROLL

Perfect scores in Steeler Black & Gold

• Matthew Anderson, Pratt Vreeland Kennelly Martin & White
• Beth DeBernardi (Permanent Honor Roll Status as of Week 48)
• Andrew Delaney, Martin Associates
• Robert Grundstein
• Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
• Patrick Kennedy, First Brother (Permanent Honor Roll Status as of Week 48)
• Aileen Lachs, Mickenburg Dunn Lachs & Smith
• Hal Miller, First American
• Kane Smart, Down Rachlin Martin
• Emily Tredeau, Office of the Defender General
• Allison Wannop, Vermont Superior Court

Question 1

With respect to contingent fee agreements, which is most accurate?

• A.  If in a writing signed by the client, there is a rebuttable presumption that the agreement is reasonable.
• B.  Contingent fee agreements are prohibited in post-judgment divorce actions for past due spousal maintenance.
• C.  A lawyer’s portion of a contingent fee shall not be calculated until after expenses have been deducted.
• D.  Contingent fee agreements shall specify whether the client’s expenses will be deducted before or after the fee is calculated.  See, Rule 1.5(c).

Question 2

Law Firm has a Facebook page.  Firm posts ” ‘LIKE’ this page and receive a gift certificate to Hubba Hubba Smokehouse!”  (my dad clicked it 74 times).    Some commentators and disciplinary types have argued that the post might violate:

• A.   the advertising rule. Arguably, a “like” is the equivalent of recommending a lawyer’s services.  Thus, a “like” might violate Rule 7.2(b).  
• B.   the rule on direct contact with prospective clients
• C.   the rule that prohibits a lawyer from inducing another to violate the rules.
• D.   the rule on client confidences

Question 3

Fill in the blank.

Attorney called me with inquiry.  Attorney wants to speak with Patrick. Attorney explained to me who Patrick is and why Attorney wants to contact Patrick.  I replied “I need more info. Has the clerk certified that Patrick’s term of service complete?”

By my response, it is most likely Attorney encountered Patrick in Patrick’s role as a JUROR.

Key to know before contacting jurors: whether the court has certified that the term of service is complete.  Compare Rule 3.5(b)(2) to Rule 3.5(c).

Question 4

With respect to Advanced Conflict Waivers, which is most accurate?

• A.  They do not violate the rules if the client was independently represented in entering into the agreement.
• B.   The rules specifically prohibit them in criminal cases.
• C.   They are allowed, but only when a lawyer who represents a married couple during the marriage asks one to sign a waiver that will apply should the couple decide to divorce.
• D.   They are more likely to be enforced if the client is a sophisticated client. See, Rule 1.7, Comment 22.   I have reservations about advance conflict waivers. Conflict waivers require “informed consent.” I don’t know how a client can consent to waive a conflict that arises after a client agrees to waive it. Doesn’t seem “informed” to me.

Question 5

Barry Zuckerkorn is a lawyer.  He’s best known for representing various members of a family. Fortunately, he’s a fictional lawyer.  Otherwise, California’s disciplinary prosecutors would have a caseload full of Barry.  Among other things, Zuckerkorn:

• paid someone to take the bar exam for him
• advised a husband & wife that the government can’t charge them both with the same crime, especially if they hold all conversations on a boat in international waters
• used “Ask Jeeves” to do his online legal research
• advised a criminal defense client to have a family member steal evidence from the prosecutor’s house
• was arrested for prostitution
• once told clients who were facing significant legal trouble that there was good news & bad new . . .  “the good news is that your legal costs are going to make me a fortune.”
• was fired and replaced as the family’s lawyer by Bob LobLaw

Name the TV show.  ARRESTED DEVELOPMENT.  If you haven’t seen it, check it out on Netflix. In a brief 3-year run, it won six Prime Time Emmys and was named by TIME Magazine as one of the 100 best TV shows ever.

 

Bonus: the actor who played Zuckerkorn first gained fame on a much older TV show.  Name that show.

Henry Winkler played Zuckerkorn. So, heyyyyyyy, the answer is HAPPY DAYS.

Five for Friday # 51

Welcome to December!  I hope everyone had a wonderful Thanksgiving.  Remember: if you’re ever in Flat Rock, NC for Thanksgiving, there’s no need for turkey: instead, visit Hubba Hubba Smokehouse .  Hubba Hubba’s is the official BBQ joint of Five for Friday and is the reason why my Dad made his first ever comment to an online article.

To the business of the day. . .

• Rules. None.  Any resource available to you is fair game.
• Exception: question 5. We play that one honest.
• Team entries welcome & encouraged
• Creative team names even more welcome & strongly encouraged
• Email answers to michael.kennedy@vermont.gov
• I will post the answers on Monday morning
• Archived quizzes are HERE.  Good  MPRE prep.
• Unless stated otherwise, all questions assume that the Vermont Rules of Professional Conduct apply

Question 1

With respect to contingent fee agreements, which is most accurate?

• A.  If in a writing signed by the client, there is a rebuttable presumption that the agreement is reasonable.
• B.  Contingent fee agreements are prohibited in post-judgment divorce actions for past due spousal maintenance.
• C.  A lawyer’s portion of a contingent fee shall not be calculated until after expenses have been deducted.
• D.  Contingent fee agreements shall specify whether the client’s expenses will be deducted before or after the fee is calculated.

Question 2

Law Firm has a Facebook page.  Firm posts ” ‘LIKE’ this page and receive a gift certificate to Hubba Hubba Smokehouse!”  (my dad clicked it 74 times).    Some commentators and disciplinary types have argued that the post might violate:

• A.   the advertising rule
• B.   the rule on direct contact with prospective clients
• C.   the rule that prohibits a lawyer from inducing another to violate the rules.
• D.   the rule on client confidences

Question 3

Fill in the blank.

Attorney called me with inquiry.  Attorney wants to speak with Patrick. Attorney explained to me who Patrick is and why Attorney wants to contact Patrick.  I replied “I need more info. Has the clerk certified that Patrick’s term of service complete?”

By my response, it is most likely Attorney encountered Patrick in Patrick’s role as a _________.

Question 4

With respect to Advanced Conflict Waivers, which is most accurate?

• A.  They do not violate the rules if the client was independently represented in entering into the agreement.
• B.   The rules specifically prohibit them in criminal cases.
• C.   They are allowed, but only when a lawyer who represents a married couple during the marriage asks one to sign a waiver that will apply should the couple decide to divorce.
• D.   They are more likely to be enforced if the client is a sophisticated client.

Question 5

Barry Zuckerkorn is a lawyer.  He’s best known for representing various members of a family. Fortunately, he’s a fictional lawyer.  Otherwise, California’s disciplinary prosecutors would have a caseload full of Barry.  Among other things, Zuckerkorn:

• paid someone to take the bar exam for him
• advised a husband & wife that the government can’t charge them both with the same crime, especially if they hold all conversations on a boat in international waters
• used “Ask Jeeves” to do his online legal research
• advised a criminal defense client to have a family member steal evidence from the prosecutor’s house
• was arrested for prostitution
• once told clients who were facing significant legal trouble that there was good news & bad new . . .  “the good news is that your legal costs are going to make me a fortune.”
• was fired and replaced as the family’s lawyer by Bob LobLaw

Name the TV show.

Bonus: the actor who played Zuckerkorn first gained fame on a much older TV show.  Name that show.

 

 

 

Monday Morning Answers

Eagle eyed readers will realize that this post gives new meaning to the weekly title.  .

Last Friday’s questions are HERE.  Spoiler alert – answers follow the honor roll.

No perfect scores this week.  However, several entries with lots of right answers.

Highest Honors – 4 for 4 on the first 4

• Hal Miller, First American
• Kane Smart, Downs Rachlin Martin
• Allison Wannop, Esq.

High Honors

• Amber Barber, Barber & Waxman
• Elizabeth Kruska, Marsicovetere Law
• Ian Sullivan, Rutland County State’s Attorney’s Office

ANSWERS

Question 1

Several rules require a lawyer to obtain a client’s “informed consent, confirmed in writing.”  Which is most accurate?

• A.  In situations that require a client’s informed consent, a lawyer may not act until the client’s informed consent is confirmed in writing.
• B.  If a lawyer has obtained a client’s informed consent, the lawyer may act in reliance on that consent so long as it is confirmed in writing within a reasonable time thereafter.  Rule 1.0, Comment[1].
• C.  The rules are silent on this issue.

Question 2

Lawyer called me with an inquiry. I listened. Then, I asked “will any activities of the partnership include the practice of law?”

Most likely, Lawyer called to discuss:

• A.  Selling her firm, but remaining “of counsel.”
• B.  Bringing on a new attorney to work “of counsel.”
• C.  Forming a partnership with a nonlawyer.  See, Rule 5.4(b) and the hint in the opening paragraph of the post.
• D.  Opening an office in another jurisdiction.

Question 3

Attorney called me with an ethics inquiry.  I listed, then said “a comment to the rule makes it clear that the rule doesn’t apply to an organization’s former constituents.”

Given my statement, it is most likely that Attorney called me to discuss the rule that deals with what topic?  Contacting a former constituent of a represented organization on the subject of the representation.  See, Rule 4.2, Comment [7] (“Consent of the organization’s lawyer is not required for communication with a former constituent.”)

Question 4

Lawyer called with an inquiry. I responded “the rule only applies if a ‘significant motive’ for doing so is your ‘pecuniary gain.’”

What did Lawyer call to discuss?  The lawyer called to discuss direct contact with a prospective client or clients.  AKA – “solicitation.”  See, Rule 7.3(a).

Question 5

A long, long time ago, Henry Winkler and Scott Baio gained fame playing Fonzie and Chachi on Happy Days.  More recently, the actors played lawyers – one ethical, one not so ethical – on an Emmy award winning television show. Name the show.

With a special acknowledgement to Emily Tredeau of the Prisoners’ Rights Office,  Fonzie and Chachi later played attorneys Barry Zuckerkorn and Bob Loblaw on Arrested Development.  Thankfully, I no longer have to compete for readers with the Bob Loblaw Law Blog.