Five for Friday #136

Welcome to Friday!

I’ve got nothing.  136 doesn’t trigger a single memory to share in today’s opening.  Still, the writing’s on the wall.

Perhaps I’ve got nothing because I’m exhausted. Why am I exhausted?  Thank you very much for asking!

I’m not sure.  I moved last weekend and have been scattered ever since.  But I doubt that’s it.  No, it’s probably because in the midst of the move I stayed up very late for 3 consecutive nights, including one night that I was up until 3:45 AM.

Now, lest you accuse me of actively using the truth to mislead, I best confess: I wasn’t up late to pack, clean, or do other things associated with moving.

I was up late watching the Boston Red Sox win the World Series!

Alas, as happy & excited as it made me, I’m left to wonder if a chapter of my life has ended.  It’s a chapter I’ve referenced often in these pages.

My history with the Red Sox is deep & complicated.  Key threads in the fabric of that history?  My dad & my superstitions.  For example, my earliest sports memory is of my dad waking me for the final out of the Red Sox playoff win in 1975.  Then, of course, he and I combined to jinx Boston in 1986, inadvertently causing Bill Buckner’s outrageously incompetent error.

Anyhow, my dad was in town last week. We watched the first two games of the World Series. As we didn’t live in the same states as each other in 1986, 2004, 2007, or 2013, it was the first time we’d seen the Sox in the Series together since 1975.

This year, Boston won the first 2 games of the World Series.  The next day, my dad drove back to his house in North Carolina.  The day after he got home, Game 3 began.

It began at 8PM our time and ended nigh 3:30 AM, with the Dodgers pulling out a miraculous win in the 18th inning.  By all rights, Boston should have won the game in the 13th inning. I’m not exaggerating.

With 2 outs in the bottom of the 13th and the Sox ahead by 1, an LA player hit a ground ball to Ian Kinsler, Boston’s 2nd baseman.  The only thing standing between the Red Sox and victory was Kinsler doing what any competent 2nd baseman would do: remain standing.  Instead, he fell flat on his face.  As he did, he threw the ball wildly to first, allowing the tying run to score.  The Dodgers went on to win 5 innings later.

The error was so outlandishly incompetent that I was convinced it was a sign that Boston would go on to lose the series.  And, it was so reminiscent of Buckner’s ’86 gaffe, one caused by my dad and me, that I was equally convinced it happened only because my dad had driven back to North Carolina instead of watching the end of the series where he had the beginning: my couch.

Thankfully, Boston recovered and won the next two games to win the title.  We didn’t jinx this one!!

Which made me wonder?  Do jinxes not exist?  Should I finally grow up and stop believing in superstitions?

Of course not!!

In fact, the only reason the Sox recovered from Kinsler’s gaffe is because of the power of the Neil Diamond lock screen!  That’s right, by doubling down on superstition earlier in the playoffs, I’d provided us with an antidote to my father’s jinxous decision to head back south!  Thank you Suz!

The Red Sox reign again.  And, for me, so does Stevie Wonder.

And that, my friends, is my thought on 136. Thanks for bearing with me . . . and go Sox!

Onto the quiz!

Rules

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception – but one that is loosely enforced – #5 (“loosely” = “aspirational”)
  • 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
  • Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

There’s a type of representation that most lawyers believe is mandated by the Rules of Professional Conduct.  It isn’t.

What “Z” word is no longer part of the rules?

Question 2

There’s a rule that prohibits lawyers from advising or assisting a client to violate the law.  In Vermont, the rule causes concern among lawyers who provide advice related to a particular product.  What’s the product?

Question 3

Fill in the blank.  It’s 2 words.

Lawyer called me with an inquiry. I listed, then responded “you can’t state a _________________  __________ as to the justness of the cause, credibility of a witness, culpability of a civil litigant, or guilt or innocence of an accused.”

Question 4

Which is associated with a different rule than the others?

  • A.   Single source
  • B.   Overdraft notification
  • C.   ACH transfers
  • D.   Lateral transfers

Question 5

The rules prohibit affirmative misstatements of material fact.

70 years ago tomorrow, many US newspapers (in)famously ran headlines that, in gigantic type, contained the same affirmative misstatement of a material fact.  The misstatement referred to a lawyer who’d first made a name for himself by prosecuting mafia figures, including Charles “Lucky” Luciano.

Believe it or not, this ties to the Red Sox.  The lawyer died in 1971. One of the very last things he did before dying was play a round of golf with Red Sox legend Carl Yastrzemski.

Name the lawyer.

 

the-quiz

 

 

Wellness Wednesday: The Lock Screen & National Mental Health Day for Law Students

Welcome to Wellness Wednesday!

Two points today.

First, nothing makes me weller than the Red Sox beating the Yankees.

Actually, wait, that’s not correct.  What I meant to write is that nothing makes me weller than the Red Sox beating the Yankees in a playoff series!

(Yes, I know “weller” isn’t a word – blogger’s license makes me well as well.)

My blog on how superstitious I am about the Red Sox is here.  Last week, Suzanne Lewis, a very good friend who I met in law school texted from Fishers, Indiana.  Fishers is the mid-west headquarters of Ethical Grounds.  Friday, the opening night of the Sox-Yanks series, Suz texted “Go Sox!” to me, her husband, and their son (my godson Sammy) along with a picture of a Neil Diamond album cover  (The Sox play Neil’s Sweet Caroline over the loudspeakers in the middle of every 8th inning at Fenway.)

Upon receiving the text, my superstition gene went into overdrive.

I didn’t reply. That would have been bad luck.  But, the next morning,  after the Sox had hung on to win Friday night’s game, I texted Suz that superstition dictated that I make the picture my lock screen.  So I did.  And then Monday night & last night happened.

Go Sox indeed!

Neil Diamond

My second point:

To my readers at VLS, today is National Mental Health Day for Law Students.  Check out the link – it’s full of great resources.  And, as I said when I spoke at the character & fitness forum a last month, take care of yourselves! Make wellness a habit that carries over into your careers.

To paraphrase Neil, habitual wellness would be:

so good, so good, so good!

Five for Friday #126

Welcome to #126!

So, 126 . . . no, that’s not how many runs the Red Sox scored against the Yankees last night, it only seems that way! Go Sox!

Back to the business at hand.  Here’s my pick for this weekend:  the Lake Champlain Dragon Boat Festival. Not only is it a fantastic event, but it gives me an opportunity to talk about two of my favorite topics: the duty of competence, and, lawyers pursuing wellness by doing fascinating non-lawyerly things.

Andy Strauss is Vermont’s Licensing Attorney.  He’s also a member of Dragonheart Vermont, the organization that puts on the Dragon Boat Festival. Last month, Andy and many of his teammates competed in the International Dragon Boat Federation’s Club Crew World Championships in Hungary.

The World Championships!!! I’d say that’s competent! And an example of a well lawyer!  Congrats Andy!

Onto the quiz!

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception: if you must, open book for Question 5 . But, we try to play that one straight.
  • 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
  • Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

Per the rules, the duty of diligence likely requires a practitioner in small firms to have which of the following?

  • A.    malpractice insurance
  • B.    a succession plan
  • C.    a cloud-based file management system
  • D.    an electronic trust accounting system

Question 2

True or false.

A Vermont lawyer violates the Rules of Professional Conduct by providing a client with advice on the scope & meaning of Vermont’s marijuana laws – for example, by advising a client in connection with the client’s operation of a medical marijuana dispensary.

Question 3

Which doesn’t belong with the others?

  • A.   the client intends to provide false testimony
  • B.    the testimony relates to an uncontested issue
  • C.    the testimony relates to the nature and value of legal services rendered in a case
  • D.   Trick question.  Each is in the same rule.

Question 4

Lawyer called me with an inquiry. I listened, then said “the duty to deliver it kicked in as soon as the representation ended.  Otherwise, there’s no set time period to keep it.” The lawyer likely called me to discuss:

  • A.   Conflicts of Interest
  • B.   Trust accounting
  • C.   File Retention
  • D.  Noisy Withdrawal

Question 5

Dragons remind me of Game of Thrones.

Last year, a New York lawyer was sued for allegedly helping a client to commit a fraudulent transfer of assets.  The lawyer responded by filing a motion in which he sought a particular type of tria.  What type?

 

 

 

 

Five for Friday #104: Finally.

Welcome to #104!

No, I’m not going to write about Phineas & Ferb’s summer vacation.  Even if it’d be hilarious to inexplicably devote a second column to Bowling for Soup. Also, no Super Bowl comments, except “Go Eagles.”  Any other sentiment is like rooting for the Galactic Empire and its Death Star to squash Luke, Leia, and the Rebel Alliance.

You see, today, the 1 doesn’t matter.  It’s the 04.

This post will be the final on my life as a Red Sox fan.

Like 75, 78, and 86,  I associate 04 with the Sox.  And, oddly, I associate what should have been the happiest moment of my Sox fandom with the end of any real joy in rooting for them.

The setting: October 2004, Boston Red Sox v. New York Yankees in a best-of-7 American League Championship Series. New York won the first 3 games, with the third a shellacking that prompted The Boston Globe’s venerable Bob Ryan to write of the Sox:  “They are down, 3–0, after last night’s 19–8 rout, and, in this sport, that is an official death sentence. Soon it will be over, and we will spend another dreary winter lamenting this and lamenting that.”

I felt the same.  I mean, we were only a year removed from Grady Little’s disastrous decision to let Pedro Martinez pitch the 8th inning of Game 7 of the 2003 ALCS – a game (and series) that the Sox lost in typically gut-wrenching fashion. In fact, in ’04, I so strongly agreed with Ryan’s post-Game 3 assessment that, initially, I opted against accompanying my brother to Boston for Game 4.  I wanted no part of an inevitable series-clinching win by the Yankees.

But I also suffer from Irish-Catholic guilt.  And, the only thing worse than witnessing a New York win would be the wrath of my mother for leaving my little brother to make the drive to & from Boston all by himself.  Even though he was 35.   So, I went.

Believe it or not, we didn’t have tickets.  Back then, there was a bar at Fenway called the Crown Royal Club. The main entrance was on the street, and you could enter without having a game ticket, but the bar was part of Fenway.  My brother knew a woman who worked there.  She told him she’d get us into the game.

Yeah, right.  I fully expected we’d end up watching on tv from the bar.

Wrong.

After milling about the Crown Royal Club for a bit, some guy appeared and signaled us to follow him.  He escorted us thru the kitchen to a nondescript door.   As we entered, I hoped it opened back to Landsdowne Street and not to a jail cell.  Shockingly, it opened into Fenway Park.  We were in! Not having tickets, Patrick and I watched from spots we staked out in the Standing Room Only section.

The rest is history.  I won’t bore you with the details.  Suffice to say, Boston tied the game in the bottom of the 9th in what is my favorite sequence in sports history. I simply cannot describe the noise or the unbridled joy that rocked the stadium as Dave Roberts slid safely home.

At that moment, I don’t know if we expected the Sox to win.  My guess is that most of Red Sox Nation thought it nothing more than a cruel prelude to another heart-break.  But, for a fleeting moment, we’d landed a punch square to the mighty Yankees’ collective nose.  And we were going to let it soak in before they recovered to knock us out.

But they didn’t.  Boston won.  Not only the game, but, miraculously, the next 3 games, and the World Series that followed.  The curse had officially ended.  They’d win the World Series again in 2007 and 2013.  (Notably, my brother went on to be one of the final 25 candidates for President of Red Sox Nation.)

Am I happy about the 3 titles?  Of course.  But, for whatever reason, I miss the fan that I was that day in ’04 when the First Brother and I drove to Fenway without tickets.

Back then, as Sox fans, all we had was hope.  Of course, it was a hope tempered by a dread born of experience.  Not unlike Charlie Brown steadfastly trusting Lucy not to yank the ball away, we annually invested nearly all of our emotional energy in a baseball team that, as it had since 1918, regularly found new & innovative ways to devastate its fans.

Occasionaly there were  moments of pure joy on the road to devastation.  That was the Dave Roberts moment.  The utter glee at landing a punch that staggered the bully before he knocked you into oblivion.

I miss those moments.

My good friend JJ is Hand Of Bar Counsel, this blog’s official King in the East, and Lord Protector of House Badger.  He’s also a huge Sox fan.  As he told me yesterday, now, it’s house money, not our hearts & souls.  Not only that, in a way, we’ve become the Yankees.

He’s right.  Sure 3 championships in 10 years is great.  But, this year, I didn’t even take the afternoon off to watch the Red Sox playoff games on TV.  Try to explain that to the me who cried in 75, 78, and 86, and who drove to Boston in ’04, without tickets, to watch a game we’d surely lose.

For me, as a Sox fan, it’ll never be better than that day in ’04 when we didn’t have titles or a massive payroll, but we had the pure joy of momentarily staggering the Yankees before they knocked us out yet again.

Only they didn’t.  And, in a bizarre way, I wonder if I’d be happier if they had.

Onto the quiz!

Rules

  • None.  Open book, open search engine, text/phone/email-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
  • Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

Under the rules, which is treated differently from the others?

  • A.   Client intends to commit a criminal act that Lawyer reasonably believes is likely to result in the death of someone other than Client;
  • B.   Client intends to use Lawyer’s services to commit a criminal act that is reasonably certain to result in substantial injury to the financial interests of another;
  • C.   Client intends to commit a criminal act that Lawyer reasonably believes is likely to result in substantial bodily harm to Client.
  • D.  Trick question.  The rule treats them all the same.

Question 2

Fill in the blank.  (2 words)

”                             are not prohibited in domestic relations matters which involve the collection of (i) spousal maintenance or property division due after a final judgment is entered; or (ii) child support and maintenance supplement arrearages due after final judgment, provided that court approves . . .”

Question 3

Lawyer called me with an inquiry. I listened, then said “yes, for the sole purpose of paying service charges or fees on the account, and only in an amount necessary for that purpose.”

What did Lawyer call to ask?

Question 4

Lawyer represents Client and, in order to act, needs Client’s “informed consent, confirmed in writing.”

Lawyer calls Client.  Client gives informed consent over the phone, but does not provide it in writing.  Lawyer promptly transmits to Client a writing that confirms Client’s spoken informed consent.

For the purposes of the rules, has Client provided “informed consent, confirmed in writing?”

Question 5

A timely question.

Okay campers, rise & shine, and don’t forget your booties cuz it’s coolllllddd out there today!

You’re an attorney who has been assigned to represent Phil Connors.  Phil is a weatherman who has been charged with simple assault.  He allegedly punched Ned Ryerson in the face.

Phil tells you that he doesn’t remember much about Ryerson, but that the two went to high school together.  The State’s discovery reflects that Ryerson, or “Needlenose Ned,” did the whistling-belly-button trick at the senior talent show, and even dated Phil’s sister until Phil told him not to.  Bing!

Phil tells you that he hasn’t seen Ryerson in years.  However, lately, they’ve run into each other often on the street.

As a competent and diligent lawyer, you argue to the prosecutor that your client isn’t a criminal, but a Renaissance man!  After all, he’s very recently learned how to speak French, play piano, and carve ice sculptures.

What movie are you in?

Bonus: what song does your client wake to every morning?

the-quiz

 

 

 

 

 

 

#fiveforfriday #78: Bucky F$#*ing Dent

After a two-week hiatus, welcome back to #fiveforfriday! It’s #78 in the list of installments of the most popular legal ethics trivia game on the internet.*

*(puffery isn’t unethical.  might not be valid in AK or HI. other terms & conditions may apply.)

What’s 78 mean to me? Sadly, it’s the 2nd in a trilogy of 3 Red Sox related heart breaks on the journey from the 75th #fiveforfriday thru the 86th.

At one point in the summer of 1978, a soon-to-be 6th grader’s beloved Sox led the evil Yankees by 14 games.  They blew the lead – and then some, trailing the Bombers by 1 game with a week to go in the season.  Often lost to history, while New York finished 6-1, the Sox valiantly went 7-0 over the final week to force a one-game playoff for the AL East title.

A few things stick in my mind about the game.

It was afternoon game. Imagine that!  By then I was a full-fledged 6th grader at South Burlington Middle School.  The school day ended at 3:15. I had Mr. Newton for math, and math met in the final period.  Mr. Newton was a huge Sox fan. His fellow math teacher, and my middle school basketball coach, Mr. Culver, was a huge Yankees fan.  The two conspired to roll televisions into the classrooms and we were treated to the first inning or so of the game.  What kind of school principal would tolerate such behavior?!?!  My dad, that’s what kind.

I don’t have many specific-memories of the game.  What I do remember clearly is this:  with the Sox trailing 5-4 in the bottom of the 9th, and 2 runners on, Yaz came to the plate.  He was an icon to legions of kids in New England. My brother and I counted ourselves among the region’s scores of wiffle ball players perfectly able to imitate The Captain’s crazy left-handed batting stance.  Just as surely as we did when we hit like him in our backyards, Yaz would drive in the tying & winning runs in dramatic fashion.

He popped out.  Not only did he pop out, but it was in foul territory.  I’ll never forget the bitter sadness, a level of despair that was a rite of passage to generations of New England kids, this time accompanied by the inexplicable: our hero is mortal?

The title of this post refers to a Yankee shortstop who specialized in hitting pop flies for outs.  In a quirk of trajectory & stadium architecture, and on that blazingly sunny October afternoon in 1978, one of his pop flies sailed over the Green Monster.  Bucky “F$%*ing” Dent.

This one’s for you Hal Miller.

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

By rule, a lawyer has a conflict if there is a significant risk that the representation of a client will be limited by the lawyer’s responsibilities to ________, ________ or _________, or by ___________________.

Your mission, should you choose to accept it, fill in at least ONE of the blanks. (hint: each blank is more than 1 word)

Question 2

Remaining on conflicts for a moment, a Comment indicates that ” ________  ___________ requires that each affected client be aware of the relevant circumstances of the material and reasonably forseeable ways that the conflict could have adverse effects on the interests of that client.”

Which fills in the blank verbatim?

  • A.    Dual Representation
  • B.     Informed Consent
  • C.    Continued Representation
  • D.   Conflict Waiver

Question 3

Which type of fee agreement is different from the others?

  • A.   Contingent fee agreement
  • B.   An agreement to a non-refundable fee, paid in advance, that a lawyer may treat as the lawyer’s property before any legal services are rendered
  • C.   An agreement by lawyers in different firms to share the fee charged to a single client
  • D.   A standard hourly fee agreement

Question 4

Attorney called me with an inquiry.  She represents Defendant in a civil case and had a question related to some of the potential witnesses for Defendant.  I listened, then responded:  “by rule, you can make the request only if (1) the witness is a relative, employee, or agent of Defendant; or (2) if you reasonably believe that the potential witness’s interests won’t be adversely affected by agreeing to your request.”

What proposed course of conduct by Attorney do “make the request” and “your request” refer to?

Question 5

Oscar “Zeta” Acosta was a real-life attorney who practiced law in California.  In 1971, he and a famous writer took two trips to Las Vegas. On the first, the two attended the Mint 400, an off-road race that Sports Illustrated had dispatched the writer to cover.  A month later, they returned to Vegas, with the writer having been assigned by Rolling Stone to cover the National District Attorneys Association’s Conference on Narcotics and Dangerous Drugs.

The writer’s trips to Vegas with Attorney Acosta inspired a book.  In the book, a lawyer whose character is based on Acosta engages in behavior that, at the very least, would result in a referral to the Lawyers Assistance Program, if not a disciplinary prosecution.

For 1 point each, who was the writer with whom Attorney Acosta travelled to Las Vegas? And, what was the name of the character who was based on Acosta?

the-quiz

 

Five for Friday: #67

Week 67.  A perfect week to honor the 50th anniversary of 1967’s The Impossible Dream.

Yaz

To the quiz we go!

But first, I interrupt my regularly scheduled blog for an important announcement:

  • Congratulations LAURA GORSKY!!!  Laura is a long-time reader and frequent member of the #fiveforfriday Honor Roll.  She’s been working as a paralegal for David Sunshine for many years.  This week, it was my honor and pleasure to send Laura a letter notifying that she had passed the Vermont Bar Exam. Congrats Laura!

Now, back to my regular programming.

Rules

  • There are none. It’s open book, open search engine, open-the-office-door-and-ask-a-colleague
  • For fun, try to play Question 5 honest, but it’s not a requirement this week.
  • Team entries welcome.  Creative team names encouraged.
  • 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 submit your answers
  • I will post the answers Monday, along with the week’s Honor Roll
  • Please consider sharing the quiz with friends
  • Hashtag & share: #fiveforfriday

Question 1

Which is most accurate?  A contingent fee:

  • A.   Must be fair
  • B.   Must be in a writing
  • C.   Must be in a writing signed by the client
  • D.  Must not be calculated until after the client’s expenses are deducted

Question 2

Attorney called with an inquiry.  I listened. I replied “It doesn’t matter that your client ‘initiated’ it, the rule still applies.  And the fact that you cc’d your client on the e-mail is not the same as consent.”

What topic did Attorney call to discuss?

Question 3

Fill in the blank.

In an advisory ethics opinion okaying the use of a particular type of technology, the Philadelphia Bar Association concluded that:

  • “_________________ sites can be a beneficial source of funds allowing the public to assist in the assertion of valid legal claims that might otherwise go without recourse. Thus, great care should be taken to make sure that the initial development of such sites not affect the ability of subsequent persons to use such a source.”

Question 4

North Carolina gained national attention for an amendment to its rule that went into effect last month.  If Vermont were to follow the Tar Heel state’s lead, nearly all lawyers would have a duty that, today, only applies to a subset of the bar.  It’s the rule that, right now, relates to:

  • A.  “Admiralty” lawyers being allowed to advertise their area of specialization
  • B.  Conflicts for defense attorneys who move from a public defender’s office to a state’s attorney’s office
  • C.   Television ads by lawyers who represent large classes of plaintiffs
  • D.  A prosecutor’s duty to disclose evidence that tends to negate the guilt of an accused.

 

Question 5

Earlier this week, three news media organizations were named co-winners of the 2017 Pulitzer Prize for Explanatory Journalism.  The organizations were The Miami Herald, The McClatchy Group DC, and The International Consortium of Investigative Journalists.  

The Pulitzer reflected their efforts on reporting a story that involved, among other things, Vladimir Putin, David Cameron, and offshore shell companies. The story came to light after a whistleblower “leaked” 11.5 million documents that a law firm had stored electronically. Review of the documents resulted in the law firm’s name partners being arrested and jailed on suspicion of money laundering.

By what name is the scandal better known?

the-quiz

 

Opening Day & Monday Morning Answers

Yes, it’s Monday.

But, the sun is shining, most of the snow has melted, and it’s Opening Day at Fenway.  I’m curious: are any of you Sox fans mildly surprised that Porcello gets the start over Sale?

Two more housekeeping matters before I get to the Honor Roll & Answers.  First, in case you missed it Saturday morning, here’s my post on the new rule in North Carolina that extends the duty to disclose exculpatory information to all lawyers.  Second, if you want to read Friday’s questions before you see the answers, they’re here.

Oh – a third thing.  In the bracket-style pool that I entered, I have Gonzaga defeating North Carolina in the title game. Unfortunately, the other two teams I had in the Final Four were Lousiville & Wisconsin.

HONOR ROLL

Question 1

The Vermont Supreme Court has described a particular rule as “prophylactic.”  The Court used the word, in part, due to what it termed as the “Hobson’s Choice” that would arise if:

  • A. A client had to disclose a confidence in order to protect it
  • B. A criminal defendant had to take a plea to avoid going to trial with ineffective& incompetent counsel
  • C. A client had to pay an unreasonable fee in order for disciplinary counsel to have grounds to prosecute the lawyer for charging  an unreasonable fee

In the context of former-client conflicts that arise under Rule 1.9, lawyers often say “but I don’t remember anything about the case.” It doesn’t matter. If the old case is the same as or substantially related to the new case, the Court will presume that confidences were shared. Otherwise, former clients will face of Hobson’s Choice of having to disclose confidences in order to protect them.

Question 2

Lawyer represents Client. Lawyer reasonably believes that Client will offer false testimony. However, the rules prohibits Lawyer from refusing to offer the evidence.

Question 3

What do these rules have in common?

  • A. The rule requiring zealous representation
  • B. The rule requiring lawyers to maintain copies of ads for 2 years
  • C. The rule prohibiting the appearance of impropriety
  • D. The rule prohibiting conduct that adversely reflects on a lawyer’s fitness to practice law

They no longer exist.  Each has been repealed or replaced.

Question 4

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 misrepresentation that a client made to the court
  • C.    Responding to a client’s negative online review
  • D.    Withdrawing upon discovery of a conflict that was not apparent at the outset of the representation

The so-called “self-defense” exception is Rule 1.6(c)(3). It allows a lawyer to disclose otherwise protected information:

  • to establish a claim or defense in a controversy between the lawyer & client; or
  • to establish a defense to a criminal charge or civil claim regarding the lawyer’s conduct in which the client was involved; or
  • to respond to allegations in any proceeding involving the lawyer’s representation of the client.

Numerous authorities have held that the exception DOES NOT apply to negative online reviews.  

  • B. Ass’n of San Francisco, Ethics Op. 2014-1 (2014) (stating that while lawyers may respond to an online review, the duty of confidentiality still prevents any disclosure of confidential information without the client’s consent)
  • Pa. B. Ass’n, Formal Op. 2014-200 (2014) (lawyer’s response to negative online must be proportional & constrained, and  must not reveal confidential information absent client consent. Negative review doesn’t trigger self-defense exception in Rule 1.6)
  • N.Y. St. B. Ass’n, Op. 1032 (2014) (lawyer may not disclose confidential client information solely to respond to former client’s criticism of the lawyer posted on a lawyer-rating website)
  • New Hampshire Bar Association Ethics Committee, NH Bar News, February 2014 (Lawyer may make limited response, but not so detailed as to divulge confidential information).
  • Los Angeles County B. Ass’n, Ethics Op. No. 525 (2012) (lawyer may publicly respond to comments published by a former client if (1) no confidential information is disclosed, (2) the response does not injure the former client in any matter involving the prior representation, and (3) the response is proportionate and restrained)

Question 5

Name the iconic musician/songwriter whose lyrics are cited more often in U.S. judicial opinions than any other musician.  Chief Justice Roberts and former Justice Scalia are among the scores of judges who have cited to the songwriter.

I never got into him, but found it to be an interesting bit of trivia. The answer is Bob Dylan.  The ABA Journal has it in this post.

Red Sox

Five for Friday #25

Last week I referenced some famous people associated with #24.  Willie Mays, Jeff Gordon, Jack Bauer.  Since some of you know I’m a Red Sox fan, a few of you asked why I hadn’t referenced Manny Ramirez.

Please.  That’d be like referencing Chloe instead of Jack Bauer.

Dwight Evans.

As any self-respecting Red Sox fan from the self-loathing days prior to 2004 knows, Dewey is the true owner of #24.

Anyhow, this is a long-winded way of saying I don’t have a clever, or even not so clever, tie-in to Week 25. All I can think of is that I was a big fan of this number 25.  I’m sure some will wonder how bar counsel could root for such an ethically challenged player. To quote another B.B., it’s my prerogative.

Rules

  • there really aren’t any
  • open book, open search engine, collude with a colleague
  • enter as a team if you want! for instance, a firm, or a county bar
  • email answers to michael.kennedy@vermont.gov

Question 1

In 1977, the United States Supreme Court opined that it is permissible as long as it is not  false, deceptive, or misleading.  In the context of this blog, what is “it”?

Question 2

Lately, I seem most interested in the rule that relates to:

  • A.  Conflicts of Interest – why shouldn’t firms with offices in multiple jurisdictions be allowed to represent clients who are adverse to each other as long as Office A does not share information with Office B?
  • B.  Disclosure of Client Confidences – why shouldn’t information relating to the representation of a former client, and that is in the public record, be fair game?
  • C.  Unauthorized Practice of Law – should paralegals be allowed to represent clients  without being supervised by attorneys?
  • D.  Nonlawyer Ownership – should nonlawyers be allowed to have ownership interests in law firms?

Question 3

Lawyer called me with an inquiry. I listened. I replied “you should write to your clients, tell them what’s happening, and give them the option of you, your firm, or someone else. Unless you hear back that it’s you, it’s the firm.”

Based on my statement, what is Lawyer most likely about to do?

Question 4

Which response best fills in the blank?

Attorney called me with an inquiry. I listened. Then I said “okay, the matters aren’t the same or substantially related.  So you’re okay on section (a) of the rule.  But, don’t forgot about section (c).  Be wary of _____________ :”

  • A.   charging an unreasonable fee.
  • B.   cross-examining or deposing a former client
  • C.  removing funds from trust before you’ve earned them
  • D.  communicating with a represented party

Question 5

This 2002 movie is based on a real-life story and is not about lawyers or practicing law.  It featured two megastars. One played Carl, the other Frank.

Frank spent much of the movie trying to avoid Carl.  However, by the end of the movie, Frank was working for Carl.  A scene in their office included this conversation:

  • Carl:   “How’d you do it Frank? How did you cheat on the bar exam in                                               Louisiana?”
  • Frank: “I didn’t cheat. I studied for two weeks and I passed.”

Name the movie.