Monday Morning Answers – The Fair

Happy Monday!  Friday’s questions are here.  The answers follow today’s Honor Roll.

Honor Roll

  • Laura Gorsky, Esq.
  • Bob Grundstein, Esq.
  • Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
  • Jonathan Teller-Elsberg, Vermont Law School, Class of 2020,
  • Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

Which belongs somewhere else than with the others?

A lawyer shall:

  • A.   keep the client reasonably informed about the status of the matter.
  • B.   explain the matter to the extent reasonably necessary to permit the client to make informed decisions.
  • C.  in an ex parte proceeding, inform the court of all material facts known to the lawyer which will enable the court to make an informed decision
  • D.   Trick question. All 3 are in separate rules.

C is in Rule 3.3(d), and is an aspect of the larger duty of candor to a court.  A & B are parts of Rule 1.4 and the duty to communicate with a client.

Question 2

True or false.

There’s a rule that specifically requires a lawyer to make reasonable efforts to expedite litigation, consistent with the interests of the client.

TRUE – Rule 3.2

Question 3

By rule, a lawyer shall not act as an advocate in a trial in which:

  • A.  the lawyer is likely to be a “necessary witness”
  • B.  another lawyer in the lawyer’s firm is a party
  • C.  another lawyer in the lawyer’s firm is a witness
  • D.  All of the above.

This is the language from Rule 3.7 and disqualifies the lawyer who is likely to be a necessary witness from acting as an advocate at trial.  The situations in B & C are not absolute bans, but only DQ the lawyer if the relationships otherwise create a conflict.

Question 4

A client’s failure to abide by the terms of a fee agreement:

  • A.   is not grounds for a lawyer to move to withdraw
  • B.   mandates that the lawyer move to withdraw
  • C.   permits the lawyer to move to withdraw.  Rule 1.16(b)(5); See also Comment [8]
  • D.  is not covered by the rules of professional conduct

Question 5

Inspired by a recent text from one of the first people ever to follow this blog.

Bob Loblaw is the Bluth family lawyer on Arrested Development.  His advertising slogan is “You don’t need double talk, you need Bob Loblaw!”  Also, as do all great lawyers, he blogs.  His blog is the “Bob Loblaw Law Blog.”  The Bluth family hired Bob to replace the incompetent Barry Zuckerkorn.

In real life, the actors who play Loblaw and Zuckerkorn also played characters in a sitcom that debuted 30 years before Arrested Development.

Name the sitcom.

First, if you didn’t pick up on the joke, Bob Loblaw is named as such in order to sound like “blah blah blah.”  His blog is “blah, blah, blah, blah, blah.” 

Scott Baio plays Loblaw and Henry Winkler plays Zuckerkorn.   An eternity ago, the two played Chachi & Arthur Fonzarelli (Fonzie) in Happy Days.

See the source image

Ghost Posts. Or are yours real?

To borrow a phrase from Larry David and Teri Hatcher, my blog posts are real and they’re spectacular!  Apparently not all law blogs can truthfully say the former.

Last month, the ABA Journal posted Ghostwriting for law blogs? Ethics are murkyIt’s a topic that’s new to me, one not raised in any of the ethics inquiries or formal disciplinary complaints that I’ve responded to and reviewed over the years.  The ABA Journal post includes insight from some of the more well-known voices on both professional responsibility and tech ethics.

But let’s back up for a moment.  You might be asking your self: “self, what is Mike even talking about?”  Good question.

The ABA’s post references this article that Kailee Goold posted to Ohio + Legal Ethics in June 2014. In it, Attorney Goold wrote:

  • “What are We Talking About?

    The ghost-blogging I’m talking about is when an attorney pays someone else (a non-attorney) to write articles published under the attorney’s name on the attorney or law firm’s website. As a result, the world thinks the attorney wrote it when the attorney had little to no part in its creation.”

Again, not an issue I’ve encountered.  But, an issue that raises ethics concerns.

Many law blogs are part of a lawyer’s website.  Websites communicate information about the services that the lawyer provides. Per V.R.Pr.C. 7.1,

  • “A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.  A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement as a whole not materially misleading.”

The final sentence of Comment [1] is “whatever means are used to make known a lawyer’s services, statements about them must be truthful.”

Also, V.R.Pr.C. 8.4(c) prohibits a lawyer from engaging in conduct that involves “dishonesty, fraud, deceit or misrepresentation.”

So, let’s say that a firm focuses on Practice Area.  And let’s say that the firm’s website includes a blog dedicated to Practice Area.  Does the firm violate the rules by paying a content developer to ghostwrite the posts and then posting them under the “byline” of one of the firm’s lawyers?

My gut reaction was “is it really THAT misleading?” But then I paused.  Because whenever we start asking whether something “is really THAT misleading,” we’ve established that it is, in fact, misleading.

In that it never arises, I don’t want to belabor the issue.  Suffice to say, if your website or blog includes posts that you paid someone else to ghostwrite, check out the articles referenced above.

Finally, I proof read by reading aloud.  Reading this blog about law blogs aloud reminded me of two things.

First, it reminded me of Elizabeth Kruska & Wesley Lawrence, perennial members of the #fiveforfriday Honor Roll in Legal Ethics.

Why them?

Because, like me, I know they’re fans of the second thing that reading today’s post aloud reminded me of: the world’s greatest law blog – The Bob Loblaw Law Blog.

See the source image

 

Monday Morning Answers #128

It makes her think of me.

Friday’s reflection on fairs gone by is here.  The answers follow today’s honor roll.

But first, I spent some time in the NEK this weekend, running both around Island Pond and along Lake Willoughby. I’ve been up there often, but have never come over Bald Mountain from Island Pond to Willoughby.  The views from Sentinel Rock State Park are phenomenal!  I imagine the area is prime leaf peeping territory.

Sentinel Rock

Sadly, don’t wait too long!  The northern side of the mountain already has several patches of red . . .in AUGUST! I assume the early color is due to the dry summer. Alas, Willoughby itself was warm and as crystal clear as ever.  If you get a chance, it’d be a great spot to beat the heat the week!

Honor Roll

Answers

Question 1

Which belongs somewhere else than with the others?

A lawyer shall:

  • A.   keep the client reasonably informed about the status of the matter.
  • B.   explain the matter to the extent reasonably necessary to permit the client to make informed decisions.
  • C.  in an ex parte proceeding, inform the court of all material facts known to the lawyer which will enable the court to make an informed decision
  • D.   Trick question. All 3 are in separate rules.

C is in Rule 3.3(d), and is an aspect of the larger duty of candor to a court.  A & B are parts of Rule 1.4 and the duty to communicate with a client.

Question 2

True or false.

There’s a rule that specifically requires a lawyer to make reasonable efforts to expedite litigation, consistent with the interests of the client.

TRUE – Rule 3.2

Question 3

By rule, a lawyer shall not act as an advocate in a trial in which:

  • A.  the lawyer is likely to be a “necessary witness”
  • B.  another lawyer in the lawyer’s firm is a party
  • C.  another lawyer in the lawyer’s firm is a witness
  • D.  All of the above.

This is the language from Rule 3.7 and disqualifies the lawyer who is likely to be a necessary witness from acting as an advocate at trial.  The situations in B & C are not absolute bans, but only DQ the lawyer if the relationships otherwise create a conflict.

Question 4

A client’s failure to abide by the terms of a fee agreement:

  • A.   is not grounds for a lawyer to move to withdraw
  • B.   mandates that the lawyer move to withdraw
  • C.   permits the lawyer to move to withdraw.  Rule 1.16(b)(5); See also Comment [8]
  • D.  is not covered by the rules of professional conduct

Question 5

Inspired by a recent text from one of the first people ever to follow this blog.

Bob Loblaw is the Bluth family lawyer on Arrested Development.  His advertising slogan is “You don’t need double talk, you need Bob Loblaw!”  Also, as do all great lawyers, he blogs.  His blog is the “Bob Loblaw Law Blog.”  The Bluth family hired Bob to replace the incompetent Barry Zuckerkorn.

In real life, the actors who play Loblaw and Zuckerkorn also played characters in a sitcom that debuted 30 years before Arrested Development.

Name the sitcom.

First, if you didn’t pick up on the joke, Bob Loblaw is named as such in order to sound like “blah blah blah.”  His blog is “blah, blah, blah, blah, blah.” 

Scott Baio plays Loblaw and Henry Winkler plays Zuckerkorn.   An eternity ago, the two played Chachi & Arthur Fonzarelli (Fonzie) in Happy Days.

See the source image

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

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.