Five for Friday: #85

Welcome to Week 85!

I’ve used this pre-quiz space to talk about sports, music, ethics, math, and lots of other things that most readers skip of which the week’s number reminds me.

So, what does 85 remind me of?  Well, I’m kind of preoccupied with 1985.

Why?

Hair and Bowling For Soup.

First, hair.

You see, in 85, I graduated from high school. And oh how do I miss those curls.

IMG_2557

Bowling For Soup is, of course, the band that brought us 1985.  For those of you hoping for a music reference to 1985, you obviously haven’t been paying attention.  I made a veiled reference to the year in this post on the legal ethics of social media.

To paraphrase, back in my high school days, it was Springsteen, Madonna, (and) way before Nirvana. There was U2, and Blondie, and music still on MTV. I don’t have kids, not to mention 2 kids in high school, but, if i did, I’m sure they’d tell me I’m uncool for being so preoccupied with .  . . 19 . . . 19 . . . 1985.

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

By rule, and at a minimum, an attorney’s trust accounting system must have 4 features.  Three of the required features are:

  • a system showing all receipts & disbursements from the account;
  • records showing all receipts & disbursements for each client;
  • records documenting timely notice to clients of all receipts & disbursements.

What’s the 4th?

  • A.  A list of authorized signatories on the account
  • B.  Records documenting timely reconciliation of the account
  • C.  Records documenting three-way reconciliation of the account
  • D. An approved credit card processing system

Question 2

Complete this analogy

By rule, Lawyer is to a representation’s means, as Client is to a representation’s _____________.

I guess it would’ve looked like this on the SAT:

Lawyer: Means ::  Client: ___________

Question 3

Lawyer is an associate at Firm. Tomorrow, Lawyer intends to provide short-term limited legal services to clients at a walk-in clinic sponsored by a nonprofit organization.  Neither Lawyer nor her walk-in clients will expect Lawyer or Firm to provide continuing representation to the clients.  By rule, which set of rules will be (somewhat) relaxed, insofar as they relate to Lawyer’s work at the walk-in clinic?   The rules on:

  • A.  Conflicts of Interest
  • B.  Malpractice Insurance
  • C.  Diligence & Competence
  • D.  Client Confidences

 

Question 4

In a dispute between Plaintiff and Organization, Plaintiff’s counsel has actual knowledge that Attorney represents Organization.  Without providing notice to Attorney or asking permission, Plaintiff’s counsel interviews a former employee of Organziation about the matter that is the subject of the dispute.

Which is most accurate under Vermont’s Rules of Professional Conduct:

  • A. Plaintiff’s counsel did not violate the rules.
  • B. Plaintiff’s counsel violated the rules.
  • C. Whether Plaintiff’s counsel violated the rules turns on whether the former employee was in “the control group.”
  • D. Whether Plaintiff’s counsel violated the rules depends on whether Plaintiff has filed and served a lawsuit in which Attorney has entered an appearance.

Question 5

Hint: even if you didn’t see this in the news, you can figure this one out by paying close attention to the question.

Earlier this week, a federal appellate court rejected a proposed settlement in a class action lawsuit.  In so doing, the court noted that a “class action that seeks only worthless benefits for the class and yields only fees for class counsel is no better than a racket and should be dismissed out of hand.”

I have no idea whether the class’s attorneys violated Rule 1.5.  However, I do know that the proposed settlement called for:

  • each of the 10 lead class members to receive $500 and a promise that, going forward, the defendant’s restaurants’ buns would be at least 12 inches long; and,
  • the attorney representing the class to receive $525,000.

Name the defendant.

the-quiz

 

 

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Social Media Sanction! Except, Not Really

Regulators, practicing attorneys, and those who opine on legal ethics seem to wait with bated breath for any sort of disciplinary sanction involving a lawyer’s use or misuse of social media.

In my view, the collective anticipation causes an anxiety that leads lawyers to distrust, if not avoid, social media.  That’s too bad.  Lawyers who distrust & avoid social media tend not to develop the level of tech competence required in today’s practice.

Here’s a test: you’re having coffee, procrastinating about getting the work day started. You have time to read ONE article.  You see these two links:

  1. Lawyer who advised client to ‘relax’ in response to Facebook inquiries gets suspension.
  2. Nebraska lawyer suspended for failing to properly communicate with client.

Which do you choose? Everyone who chose #1, raise your hand.

As I expected, lots of hands.

The links are to the exact same story.  #1 ran in the ABA Journal, #2 in the Omaha World-Herald. To borrow a phrase, social media sells.  Are you telling me that my choice is “lawyer suspended for using Facebook!” or “lawyer fails to communicate with client?” Ha! I’ll take social media 11 times out of 10!

Here’s another test for my lawyer readers: raise your hand if, even without reading the story, you thought “See, I knew Facebook could get me in trouble.”

Again, lots of hands.

Now, read the opinion from the Nebraska Supreme Court.  In reality, the lawyer’s violation had very little to do with Facebook.  The lawyer’s responses to his client likely would’ve violated Nebraska’s rules whether transmited via Messenger, e-mail, phone call, or U.S. Mail.

In other words, a failure to communicate is a failure to communicate regardless of the medium.  The lawyer who fails to engage in a reasonable level of communication via Messenger in 2017 is as guilty of misconduct as the lawyer who, way before Nirvana, failed to engage in a reasonable level of communication in 1985.

This violation had nothing to do with social media.  Don’t fear social media.

Social Media

P.S.: talk about burying the lede.  The lawyer intentionally sued the wrong defendant in order to access deep pockets!!  To me, that’s a bit more disturbing than a garden-variety failure to communicate.