Monday Morning Answers

Happy Memorial Day.

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

Congrats to all who participated in the Vermont City Marathon.  I finished, but it wasn’t pretty. Things went well until about Mile 21.8.  From there, it was a struggle.  Still, I finished, reaching my goal of 20.

Given the way it ended, I spent yesterday afternoon and evening swearing off marathons forever.  I told myself “20 is a great accomplishment. It’s time to focus on halfs.”

This morning I’ve already started looking for a full marathon to run this fall.

Honor Roll

• Penny Benelli, Dakin & Benelli
• Laura Gorsky, Law Office of David Sunshine
• Anthony Iarrapino, Wilschek & Iarrapino
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Kevin Lumpkin, Sheehey, Furlong & Behm
• Joshua Martin
• Lon McClintock, McClintock Law Offices
• Jeff Messina, Bergeron Paradis Fitzpatrick
• Hal Miller, First American
• Jay Spitzen

Answers

Question 1

With respect to legal ethics, which involves a different set of rules than the others?

• A.  Net dividends
• B.  Screening
• C.  Overdraft Notification
• D.  Three-Way Reconciliation

Screening is associated with the conflict rules.  The others are part of the trust accounting rules.

Question 2

Which doesn’t belong with the others?

• A. a system showing all receipts & disbursements from the account
• B. records showing all receipts & disbursements for each client
• C. records documenting timely notice to clients of all receipts & disbursements
• D. an approved credit card processing system

A-C are required by Rule 1.15A.   D is not.  

Question 3

Attorney represents Tatum in the civil matter Tatum v. James.*   Lawyer represents James and has retained Expert Witness.

Whether Attorney can contact Expert Witness without Lawyer’s permission is likely governed by:

• A.  Rule 4.2 (the no-contact rule)
• B.  Rule 1.6 (information relating to the representation)
• C.  The Rules of Civil Procedure
• D.  The Rules of Evidence

Anyhow, an expert witness is not represented by the lawyer who represents the party or person for whom the witness will be testifying. So, Rule 4.2 does not apply.

However, Rule 26 of the Vermont Rules of Civil Procedure limits the ways in which discovery may be obtained from an expert witness.  Contacting that witness informally might not be one of them.  Thus, in the hypo, Rule 26 answers the question.  The Vermont rule is based on Federal Rule of Civil Procedure.  

Rule 3.4(c) of the Rules of Professional Conduct prohibits lawyers from disobeying an obligation under the rules of a tribunal.  In that V.R.C.P. 26(c) is a court rule, a violation of thereof might rise to the level of a violation of Rule 3.4(c) of the Rules of Professional Conduct.

If interested, please contact me and I will provide you with a cite to a decision from the Vermont Superior Court that is on point.  I’m having trouble linking to it.

*Sadly, James prevailed over Tatum in last night’s Game 7.  Never in my life have I heard so much praise heaped upon a superstar who, when you get right down to it, beat a team that was without its 2 best players for the entire playoffs. Not exactly something upon which legacies used to be built.

Question 4.

Pops & Olive divorced many years ago.  Pops is over a year in arrears on court-ordered spousal maintenance payments.

Olive asks Lawyer to represent her in a post-judgment motion to enforce the order.   She cannot afford Lawyer’s fee and asks Lawyer to take the case on a contingent fee basis.  Lawyer agrees.  You may assume that Lawyer does not have any conflicts that prohibit Lawyer from representing Olive.

Which is most accurate?

• A.   If the contingent fee agreement is reasonable & reduced to writing, it does not violate the rules.
• B.   Lawyer has violated the rules.  Contingent fees are banned in domestic cases.
• C.   There will not be a violation unless or until Lawyer attempts to collect a contingent fee from Olive.
• D.   There is no violation because it was Olive, the client, who proposed the contingent fee.

Rule 1.5(d)(1) allows contingent fees in this type of situation.

Question 5

Talk about unethical!!

In 1980, the first woman to cross the finish line at the Boston Marathon did so in what would have been the fastest time in Boston history, and third-fastest marathon in recorded history.  Alas, she was disqualified after it was determined that she’d not run the full course.  By some reports, she jumped into the race in the final mile before the finish.

Name her.

Rosie Ruiz.

For more, here’s a story that ran in the Lawrence Eagle Tribune a few years ago.  Until I read the story, I’d never known that it’s suspected that Rosie qualified for Boston by cheating at the 1979 New York City marathon.

Like any other human activity, the running world is replete with cheaters.  The New Yorker ran this story on Kip Litton, a runner who, among other race irregularities, is suspected of having gone to so far to concoct a fake marathon & list himself as the winner.  Letsrun wrote about Mike Rossi, the runner who probably never expected a note to his kid’s teacher would have such damning consequences.

I view Derek Murphy as the sports disciplinary prosecutor.  Derek runs Marathon Investigation.  It’s a site dedicated to exposing marathon cheats, in particular those who cheat to get into Boston.

 

CC, BCC, and a lawyer’s duty of competence.

I can hear you now.

• “Mike, what the heck do CC & BCC have to do with my duty of competence?”

Thank you!! The fact that you know you have a duty of competence is music to my ears!

Now, back to your question.

In my view, the duty of competence includes a duty to have a basic understanding of the benefits and risks of using technology while representing a client.  For example, understanding the risks of “CC-ing” or “BCC-ing” a client on an e-mail to opposing counsel.

So, to bcc or not to bcc?  That is the question.  It’s a question worth considering, if only not to suffer the slings and arrows of angry clients & frustrated opposing counsel.

I’ve blogged on this issue before:

• CC & Reply-All
• CC & Reply-All – Is BCC the answer?

The posts reference advisory opinions from North Carolina and New York.  The opinions list the reasons not to “cc” clients, “bcc” clients, or “reply-all” to an email in which opposing counsel “cc’d” a client.   Any or all can lead a lawyer right into the danger zone.

Seriously Lana, call Kenny Loggins.

Last month, the Alaska Bar Association issued Ethics Opinion 2018-01: E-Mail Correspondence with Opposing Counsel While Sending a Copy to the Client.  The opinion is consistent with those issued by the North Carolina and New York bars.

Here’s a summary of the Alaska Bar’s opinion:

• A lawyer has a duty to act competently to protect a client’s confidences.
• A lawyer has a duty not to communicate with a represented party on the subject of the representation.
• Lawyers are encouraged not to “cc” or “bcc” their clients on electronic communications to opposing counsel.
• A more prudent practice is to forward the client a copy of a sent e-mail.
• At the outset of any matter, lawyers should agree on a “cc” and “reply-all” protocol.
• Absent a protocol, s lawyer has a duty to inquire whether opposing counsel’s “cc” to opposing counsel’s client is permission to “reply-all.”

Good recommendations.

Stay safe out there.  And, remember: competence includes tech competence.