Candor to Tribunal

Monday Morning Answers

Michael

Happy Monday!

A goal this week: W.I.N. you 3 feet of influence.

Friday’s questions are HERE.  The answers follow today’s Honor Roll.

Honor Roll

  • Karen Allen, Esq.; Karen Allen Law
  • Matthew Anderson, Pratt Vreeland Kennelly & White
  • Linda Baccki, Law Office Study Program, Law Office of Cristina Mansfield
  • Penny Benelli, Dakin & Benelli
  • Andrew Delaney, Martin & Associates
  • Bob Grundstein, Esq.
  • Tammy Heffernan, Esq.
  • Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy, Queen Mum, JB Kennedy Associates
  • Kevin Lumpkin, Sheehey Furlong & Behm
  • Lon McClintock, McClintock Law Offices
  • Jack McCullough, Vermont Legal Aid, Project Director – Mental Health Law Project
  • Hal Miller, First American
  • Nancy Hunter Rogers, Chamberlin Elementary School
  • Kane Smart, ANR, Office of General Counsel, Enforcement & Litigation Section
  • Robyn Sweet, CORE Registered Paralegal, Cleary Shahi  & Aicher
  • Thomas Wilkinson, Jr.; Cozen O’Connor

Answers

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; Rule 1.0(n)
  • 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; Rule 3.3, Comment [10]

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.

False.  Rule 3.7(a)(2)

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?

Rule 4.2 Communication with a Person Represented by Counsel.  See, Comment [2]

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?

Meghan Markle.  The show is Suits.  If you haven’t heard of her, in real life, she and Prince Harry recently engaged.  

Markle

 

Monday Morning Answers #81

Michael

Nothing like a little Jay-Z to get people to enter the quiz!

Friday’s questions are HERE.  Today, the answers are below the Honor Roll.

Honor Roll

Answers

Question 1

Not all rules were created equal.  If an attorney’s duties under the rules conflict, which duty is usually viewed as trumping all others?

  • A.   Duty of zealous advocacy to clients
  • B.   Duty of fairness to opposing counsel & opposing parties
  • C.   Duty to provide competent, conflict-free representation
  • D.   Duty of candor to the courts; See generally, V.R.Pr.C. 3.4.  Per the Reporter’s Notes, “if the interests of client and tribunal conflict with regard to candor, the interest of the tribunal prevail.”  Also, Comment 11 makes it clear that the duty of candor to the court prevails even in the face of causing “grave consequences” to a client by disclosing the client’s false testimony.

Question 2

Competence.  Conflicts.  Candor.  There’s another word that begins with “C” that is a serious violation of the rules.  However, the word doesn’t appear in any of the rules, notable in its absence from the trust accounting rules and the rule on safekeeping client property.

What’s the word?

Commingling

Question 3

This comes up in approximately 30% of the inquiries I receive. So, about 330 times per year.

Imagine I’m speaking at CLE.  You hear me say “the idea is that we’re not going to put a client to the ‘Hobson’s Choice’ of having to disclose a confidence in order to protect it.”

What general topic am I discussing?

Conflicts/Withdrawal

It is not uncommon for lawyers who encounter former client conflicts to tell me “but Mike, I don’t remember anything about the prior case.”  That may be true, but it’s not the standard under Rule 1.9(a).  As the Vermont Supreme Court has explained, if the new client’s matter is the same as or substantially related to the former client’s matter, the Court will presume that the former client shared confidential information with the attorney.  Why? 

  • “[t]he purpose of the presumption is to avoid “ ‘putting theformer client to the Hobson’s choice of either having to disclose his privileged information in order to disqualify his former attorney or having to refrain from the disqualification motion altogether.’ ” In re Crepault, 167 Vt. 209, 216-17 (citations omitted).

Question 4

Lawyer called me with an inquiry. I listened, then said,

  • “Okay.  Since you and Attorney don’t work in the same firm, it is only allowed if  you  do one of two things.  And, since it sounds like Attorney doesn’t want to do any work on Client’s matter, that means that the first option is out. So, your only option is that you each assume joint responsibility for the representation of Client. Otherwise, the rule prohibits it.“

What is “it” that Lawyer called to discuss, and that Lawyer and Attorney propose to do.

Fee Sharing.   See, this post.

Question 5

As another school year approaches, imagine an aspiring 1L heading to law school.  Law student is cruising down the highway with the tunes blaring.  All of sudden, there are blue lights in the rear view. In the ensuing encounter with police, the law student says to the officer:

  • “Well my glove compartment is locked, so is the trunk in the back
    And I know my rights, so you gon’ need a warrant for that.”

Problem 1:  The situation at hand for our erstwhile law student.

Problem 2:  Future issues with the Character & Fitness committee upon applying for admission?

Problem 3: If law student’s statement is based on advice from a lawyer, the lawyer didn’t exactly provide competent & ethical advice.

Your problem: Name the artist & song that was blaring just before law student was pulled over.

Jay-Z, 99 Problems.

Jay Z

 

Was That Wrong? The Ethics Monster

Michael 1 Comment

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 CLE 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.

The latest installment comes from the Ohio Supreme Court’s decision in Cleveland Metroplitan Bar Association v. Donchatz.  I don’t know how to categorize the misconduct as anything other than “you can’t make this stuff up.”

Here’s how I imagine I might script it if I ever write my own legal ethics knockoff of Seinfeld’s “Red Dot” episode.  By way of background, and since it’s not in the Ohio Supreme Court’s decision, the recommendation from a panel of the Ohio Board of Professional Conduct noted that the respondent used to be a disciplinary prosecutor and, when in private practice, billed himself as “The Ethics Monster.”  Recommendation, paras. 8 & 71.

  • Court:  We’ll get right to the point.  It has come to our attention that a tree company sued you for an unpaid bill.  A default judgment issued against you.  Even though you did not pay the judgment, you filed a notice of satisfaction of judgment.  Then, you did not withdraw the notice when asked to do so.
  • Lawyer:  Who said that?
  • Court:  Sorry, there’s more.  It’s also come to our attention that you sued a former client for unpaid legal fees.  A mediation session did not resolve the dispute. Nonetheless, you filed a “stipulated entry & consent judgment.”  The court approved it and entered judgment in your favor. Counsel for your former client reminded you that no agreement had been reached and asked you to withdraw the stipulated entry of judgment. You did not, and informed counsel that it would constitute (1) defamation for counsel to file an ethics complaint against you, and (2) a fraud upon the court for counsel to ask the court to vacate the judgment.
  • Lawyer:  Again, who said that?
  • Court:   The person who holds a job just like one that you used to have.
  • Lawyer:  Was that wrong?  I tell you, I gotta plead ignorance on this thing because if anyone had said anything to me at all when I was first licensed . . .
  • Court:  Suspended indefinitely.
  • Lawyer:  Well, you didn’t have to say it like that.

costanza

I think this gives new meaning to the term “Ethics Monster.”

 

(Manic) Monday Answers

Michael

Yes, Prince wrote Manic Monday.

Before I get to the answers to Five for Friday, the questions are  HERE.

HONOR ROLL

PERFECT SCORE

  • Andrew Delaney, Martin & Associates
  • Robert Grundstein
  • Ian Sullivan, Office of the Rutland County State’s Attorney
  • Alli Wannop

PERFECT ETHICS

  • Matthew Little, Law Office of Matthew Little
  • Lon McClintock, Law Office of Lon McClintock
  • Kane Smart, Downs Rachlin Martin

Honorable Mention

  • Hal Miller, some beach in Hawaii

THE ANSWERS

Question 1

Lawyer represents Nikki.  Nikki stands charged with lewd & lascivious conduct in a hotel lobby.  The State’s key witness is Apollonia.  Several years ago, Lawyer prosecuted Apollonia while working as a deputy state’s attorney.

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

  • A.  Whether Lawyer conflicts off Nikki’s case will most likely turn on whether Lawyer has confidential government information about Apollonia that could be used to Apollonia’s material disadvantage.  See, Rule 1.11(c).
  • B.  Lawyer needs Apollonia’s consent, confirmed in writing, to represent Nikki
  • C.  Lawyer needs the State’s consent, confirmed in writing, to represent Nikki
  • D.  B & C

Question 2

Attorney represents Plaintiff in a civil suit.   The case is not going to settle and will definitely go to trial.

Attorney took the case on a contingent fee basis. Attorney and Expert can’t agree on a fee.  Attorney thinks Expert’s  fee to testify at trial is unreasonably high.

Attorney & Plaintiff learn that Expert is an avid collector of rare hats.  Plaintiff happens to own a raspberry beret that is extraordinarily rare and quite valuable. Plaintiff tells Attorney that she’ll give the beret to Expert, but only if the jury returns a plaintiff’s verdict.

According to a comment in the Vermont Rules of Professional Conduct, is it generally proper or improper to to pay an expert witness a contingent fee?

Improper.  See, Rule 3.4, Comment [3]  (“The common law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying and that it is improper to pay an expert witness a contingent fee.”)

Question 3

Lawyer called with an inquiry.  She told me that Client is concerned that Client and Lawyer were born under different astrological signs.  Lawyer told me that there “ain’t no particular sign I’m more compatible with“ and that Client should act his age not his shoe size.  Then she said, “but that’s not why I’m calling. I’m calling because I have an additional concern.”

Lawyer described her additional concern.  I replied “generally, the duty is to take reasonable remedial measures, whatever that means.  The comment to the rule suggests that the duty lasts until the conclusion of the proceeding.”

Given my reply, what was Lawyer’s additional concern?

  • A.   That she had overcharged Client.
  • B.   That Client had offered false testimony.  See, Rule 3.3(a)(3), (b) and (c), and Comment 13.
  • C.   That Client is incompetent
  • D.   That she had discovered a conflict that she should have discovered much earlier.

Question 4

Lawyer represents Client in a civil case pending in Washington County.  Opposing Counsel filed a motion for summary judgment and supporting memorandum of law.  The memo does not citeLittle v. Red Corvette, a decision from the Vermont Supreme Court that Lawyer not only knows about, but knows is directly adverse to Client’s position.

Which is most accurate under the Vermont Rules of Professional Conduct?

  • A.   Lawyer must disclose Little v. Red Corvette in her reply.  See, Rule 3.3(a)(2).
  • B.   Lawyer must not disclose Little v. Red Corvette in her reply.
  • C.   If Client consents, Lawyer may disclose Little v. Red Corvette in her reply.
  • D.   Lawyer must report Opposing Counsel to disciplinary counsel.

Question 5

Prince had 5 songs reach #1 on the Billboard charts.  The last to do so was in 1991, shortly before the artist’s legal dispute with Warner Brothers led him to change his name to an unpronounceable glyph.  Name Prince’s last song to reach #1.

Cream.  Extra credit to Ian Sullivan for correctly stating that it was Prince & The New Power Generation.