Conflicts of Interest

Monday Morning Honors #298

Michael Leave a comment

Happy Monday!

Friday’s questions are here.  Many thanks to all who sent stories of things we no longer collect!  I’ll share a list later this week. The answers follow today’s Honor Roll.

Honor Roll

  • Karen Allen, Karen Allen Law
  • Matt Anderson, Pratt Vreeland Kennelly Martin & White
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Law Professor, UIC Law
  • Kristen Connors, Montroll Oettinger & Blanquist
  • Andrew Delaney, Martin Delaney & Ricci Law Group
  • Robert Grundstein
  • Glenn Jarrett, Jarrett/Hoyt
  • The Honorable Pam Marsh, Probate Judge, Addison County
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeffrey Messina, Flynn Messina Law
  • Keith Roberts, Darby Kolter & Roberts
  • Jim Runcie, Olivette & Runcie
  • Joe Strain, Marsicovetere & Levine Law Group
  • Jonathan Teller-Elsberg, Staff Attorney, New Hampshire Legal Assistance
  • Jason Warfield, Jason Warfield Family Law & Mediation
  • Peter Young, General Counsel, Vermont Rail System
  • Brendan Walsh, Quantum Leap Capital
  • Thomas Wilkinson, Jr., Cozen O’Connor

ANSWERS

Question 1

A comment to a rule states that “information acquired in a prior representation may have been rendered obsolete by the passage of time, a circumstance that may be relevant in determining whether two matters are substantially related.”

Which two of the 7 Cs of Legal Ethics does the rule address?

Conflicts & Confidentiality, See, V.R.Pr.C. 1.7, Cmt. [3]

Question 2

The word “client” is not one of my 7 Cs of Legal Ethics.  I suppose it should be!

Anyhow, there are several rules whose titles reference specific types of clients.  Which is NOT a type of client specifically mentioned in the title to a rule?

  • A.           Current.
  • B.           Deceased.
  • C.           Former.
  • D.           Prospective.

The others are mentioned in, respectively, Rules 1.7, 1.9, and 1.18.

Question 3

Attorney contacted me with an inquiry.  I listened, then responded:

“There are 3 exceptions.  One is if the testimony relates to an uncontested issue. Another is if the testimony relates to the nature and value of legal services rendered in the case.  The last is if disqualification will result in substantial hardship to the client.”

Given my response, Attorney contacted me because Attorney __________:

  • A.  reasonably believed that they had become a necessary witness.  See, V.R.Pr.C. 3.7
  • B.  mid-trial, learned that a former client would be the next witness to testify for the opposing party.
  • C.  had been subpoenaed to give evidence against a former client.
  • D.  All the above.  The rule mentions each scenario.

Question 4

Vermont has a rule that is not in the ABA Model Rules of Professional Conduct. Following the ABA’s lead, most jurisdictions have either decided not to adopt the rule or repealed it.  Jurisdictions that do not have the rule typically prosecute the conduct that the Vermont rule prohibits – basically, extortion – under a rule that prohibits a lawyer from engaging in conduct that is related to a crime.

Here is a comment to the Vermont rule.  Fill in the blanks. A different word goes in each.

It’s Rule 4.5 – Threatening Criminal Prosecution.  The question refers to Comment [1].

“The civil adjudicative process is primarily designed for the settlement of disputes between parties, while the criminal process is designed for the protection of society as a whole.”

Question 5

Like most jurisdictions, Vermont has a rule that prohibits a lawyer from having a sexual relationship with a client.  There is an exception for sexual relationships that pre-date the attorney-client relationship.

Last summer, in the second season of a popular show, a lawyer named Mickey danced around the rule.  After having a brief sexual relationship with Lisa – a chef & restaurant owner – Mickey represented Lisa when she was charged with murder.  After a jury found Lisa “not guilty,” Lisa “fired” Mickey so that they could resume their personal relationship.

From the Netflix show and the series of books on which it is based, we know that Mickey has no problem taking on tough cases but has one hard & fast rule related to client selection: he will never represent someone who has hurt a child.

Name the Netflix show in which Mickey is an attorney who has an unconventional “office.”

The Lincoln Lawyer

Monday Morning Honors #296

Michael 1 Comment

Happy Monday!

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

  • Karen Allen, Karen Allen Law
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Law Professor, UIC Law
  • The Currency Counselors, Office of the State Treasurer, General Counsel’s Office
  • Robert Grundstein
  • Margo Howland, Esq.
  • Glenn Jarrett, Jarrett/Hoyt
  • Douglas Keehn, Assistant Attorney General, Medicaid Fraud & Residential Abuse Unit
  • Mark Kolter, Darby Kolter & Roberts
  • Elizabeth Kruska, Former President, Vermont Bar Association
  • Jordana Levine, Marsicovetere & Levine
  • Jeffrey Messina, Flynn Messina
  • Patrick Olmstead, Patrick Olmstead Law
  • Keith Roberts, Darby Kolter & Roberts
  • Jim Runcie, Ouimette & Runcie
  • Jonathan Teller-Elsberg, Staff Attorney, New Hampshire Legal Assistance
  • Brendan Walsh, Quantum Leap Capital
  • Jason Warfield, Jason Warfield Family Law & Mediation
  • Thomas Wilkinson, Jr., Cozen O’Connor

ANSWERS

Question 1

Here’s language from a rule that relates to one of the 7 Cs of Legal Ethics:

“The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client.”

The language is the first of four requirements that must be met before a lawyer can __________:

  • A.  Represent a client despite a concurrent conflict of interest.  See, V.R.Pr.C. 1.7(b)(1).
  • B.  Disclose otherwise confidential information.
  • C.  Undertake representation in a subject matter area that is new to the lawyer.
  • D.  Choose not to communicate to the client information that would otherwise assist the client to make an informed decision about to the representation.

Questions 2

Fill in the blank. Choices are below and the same word correctly fills each blank.

There’s a rule that sets out a lawyer’s duties when dealing on behalf of a client with a person who is ___________.  Per the rule, a lawyer “shall not state or imply that the lawyer is disinterested.”  A comment to the rule states that “An ___________ person, particularly one not experienced in dealing with legal matters, might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even though the lawyer represents a client.”

What’s the word?

  • A.  Incapacitated.
  • B.  Represented.
  • C.  Unrepresented.  V.R.Pr.C. 4.3, Comment [1].
  • D.  Adverse.

Question 3

This came up in an inquiry I received this week.

A supervisory lawyer will be responsible for another lawyer’s misconduct __________:

  • A.  Never.
  • B.  If the supervisory lawyer orders or ratifies the misconduct.
  • C.  If the supervisory lawyer knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
  • D.  B & C.  See, V.R.Pr.C. 5.1.

Question 4

Speaking of remedial action and the & 7 Cs of legal ethics . . .

. . . each situation below likely requires action by the lawyer. However, of the “C” rules, only one includes language that specifically requires a lawyer to take “reasonable remedial measures” in response to specified conduct by a client or witness.  Which C, and what is the conduct, stated in the rule, that requires “reasonable remedial measures?”

  • A.  Confidentiality.  The client or witness informed the lawyer that they used impermissible or illegal methods to obtain evidence from an opposing party.
  • B.  Candor.  The client or witness offered material evidence that the lawyer comes to learn is false.  V.R.Pr.C. 3.3(a) (3).
  • C.  Commingling.  The lawyer comes to learn that the client or witness used the lawyer’s trust account to hide funds from creditors. 
  • D.  Conflicts.  The lawyer comes to learn that the client or witness met with another lawyer for no reason other than to disqualify the lawyer from representing the opposing party.

Question 5

Background: a category in Jeopardy a few nights ago was “the original language.” For example, a clue was “The Aeneid.”  The correct response was “What is Latin?”  Also, in Vermont, the unauthorized practice of law violates Rule 5.5 of the Vermont Rules of Professional Conduct.

In the intro, I referred to a motion for sanctions filed against an attorney representing Elon Musk in a civil case that is pending in Texas. I mentioned that the motion alleges the lawyer engaged in uncivil conduct during a deposition.  What I didn’t mention is that the motion also argues that Musk’s lawyer engaged in the unauthorized practice of law by appearing at the deposition (and filing pleadings) before being admitted to practice in Texas.  Specifically, the motion argues that the lawyer failed to secure a type of admission that, as far as I know, every U.S. jurisdiction uses a Latin term to describe. 


What’s the Latin term for the type of admission to practice that Musk’s lawyer allegedly failed to secure?

PRO HAC VICE

Bonus: what’s the literal English translation?

A variety of answers are generally correct.  According to my research, the literal translation is “for this turn.”

Monday Morning Honors #295

Michael 2 Comments

Happy Boston Marathon Day!  Good luck to all runners, including Vermont lawyer Tim Noonan!

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

A HUGE thank you to all the readers who sent tips on making the perfect grilled cheese sandwich. I received so many that I think Wednesday might require a wellness post that features the suggestions. 

Honor Roll

ANSWERS

Question 1

By rule, what is required to be “communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation?”

  • A.  Whether the lawyer has malpractice insurance and, if so, the policy limits.
  • B.  Whether the lawyer has designated a successor to review and triage files if the lawyer becomes incapacitated during the representation.
  • C.  The basis or rate of the lawyer’s fee, and expenses for which the client will be responsible, except when the lawyer will charge a regularly represented client on the same basis or rate.  V.R.Pr.C. 1.5(b).
  • D.  All the above.

Question 2

Which is NOT an exception to the duty not to disclose information relating to the representation of a client.

  • A.  To respond to a negative online review left by a former client.  See this blog post.
  • B.  To secure legal advice about compliance with the ethics rules.
  • C.  To make an inquiry of bar counsel about the representation.
  • D.  To detect conflicts of interest when considering new employment.

Question 3

Vermont has a rule that imputes certain types of a lawyer’s conflicts to all other lawyers in the same firm.  Does the rule impute a paralegal’s conflict to other lawyers in the same firm?

  • A.  Yes, and the firm must decline the representation.
  • B.  No, but the paralegal should be screened from involvement in the new matter.  See, V.R.Pr.C. 1.10, Cmt. [4].
  • C.  Yes, but only to any lawyer who supervises the paralegal.

Question 4

Do Vermont’s rules on conflicts of interest allow a client to consent to waive a conflict that might arise in the future?

  • A.   No.
  • B.   Yes.  The advance waiver is subject to the same test as any other conflict waiver.  See, V.R.Pr.C. 1.7, Cmt. [21].
  • C.   Yes, but only if the client is a “sophisticated client.”
  • D.   Yes, but only if the client is a “sophisticated client” who has previously retained the lawyer in other matters.

Question 5

The people in these pictures are Sarah Paulson and Courtney Vance.  The pictures are stills from a documentary in which each portrayed a lawyer who was involved in the OJ Simpson criminal trial. 

Talk about competence!

In 2018, each won an Emmy Award for their work in the documentary.   Name the lawyers that each played.

Marcia Clark & Johnnie Cochran.

Monday Morning Honors #294

Michael Leave a comment

Happy Eclipse Day! 

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

Honor Roll

  • Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labor
  • Andy Delaney, Martin Delaney & Ricci
  • Robert Grundstein
  • Ryan Kane, Vermont Deputy Solicitor General, Office of the Attorney General
  • Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
  • Douglas Keehn, Assistant Attorney General, Medicaid Fraud & Residential Abuse Unit
  • Patrick Kennedy, The First Brother
  • Jordana Levine, Marsicovetere & Levine
  • Jeffrey Messina, Flynn Messina
  • Patrick Olmstead, Patrick Olmstead Law
  • Keith Roberts, Darby Kolter & Roberts
  • Stephanie Romeo, Ryan Smith & Carbine
  • Jonathan Teller-Elsberg, Staff Attorney, New Hampshire Legal Assistance
  • Jason Warfield, Jason Warfield Family Law & Mediation

ANSWERS

Question 1

Here’s a few sentences from one of the comments to a rule.  What of the 7 Cs of Legal Ethics does the rule address?

  • “To determine whether a _______ exists, a lawyer should adopt reasonable procedures, appropriate for the size and type of firm and practice, to determine in both litigation and nonlitigation matters the persons and issues involved. Ignorance caused by a failure to institute such procedures will not excuse a lawyer’s violation of this rule.”

CONFLICT OF INTEREST.   V.R.Pr.C. 1.7, Cmt. [3]

Question 2

Some might consider it a distinction without a difference, but which is correct?  Vermont’s rule on fees:

  • A.  prohibits a lawyer from charging an unreasonable fee.  See, V.R.Pr.C. 1.5.
  • B.  requires a lawyer to charge a reasonable fee.

Question 3

Another C.   A comment to the rule that addresses this “C” acknowledge that compliance with the duty “can result in grave consequences to the client, including not only a sense of betrayal but also loss of the case and perhaps a prosecution for perjury.”  Still, compliance is required.

Which C?

CANDOR.   V.R.Pr.C. 3.3, Cmt. [11]

Question 4

Imagine this situation: Person meets with Lawyer to discuss forming a client-lawyer relationship. Person took the meeting in good faith. That is, Person did not take the meeting for no other purpose than to disqualify Lawyer from representing anyone else in the matter.  Nevertheless, following the consultation, Person decides not to retain Lawyer. Now, someone else wants to retain Lawyer in the same matter.

Which is most accurate?

  • A.  Vermont has a rule that addresses this exact situation.  The rule sets out the duties a lawyer owes to a prospective client.
  • B.  Vermont does not have a rule that addresses this exact situation.  Rather, Person will be deemed a “Current Client” and the situation analyzed under the rule that addresses “concurrent conflicts of interest.”
  • C. Vermont does not have a rule that addresses this exact situation.  Rather, Person will be deemed a “Former Client” and the situation analyzed under the rule that addresses the duties owed to former clients.
  • D.  Mike, I object to the premise of your question.  There is no world in which a client could possibly decide against retaining me after having met me.

I blogged about the rule 3 times last week. The posts are:

Question 5

It has been far too long since Question 5 involved My Cousin Vinny. So, with the intro having involved gambling, here we go!

My Cousin Vinny includes a famous scene in which Vinny explains offers, counteroffers, and negotiations.  The explanation is part of his attempt to collect bet that Mona Lisa Vito had won, but that the loser had not paid.

What had Mona Lisa Vito (successfully) bet on herself to win?

And because I set the rules here and am allowed blogger’s license, no credit for anyone who suggests that it was more of a hustle than a bet.

A game of pool.  The “collection” scene is here.

A lawyer’s duty to manage their caseload.

Michael 1 Comment

Back when I used to blog, I often posted about wellness on Wednesdays.  Thus, if you were to travel back in time and tell Younger Me that a future Wednesday would include a post about excessive workloads, I’d likely respond “that makes sense. I bet I’ll discuss the impact that an uncontrolled workload can have on wellness.” 

Like the defense in My Cousin Vinny, Younger Me would be wrong.

Today, I write to address a lawyer’s duty to control their workload. A duty that flows to clients and that existed long before the profession began to address wellness & well-being.

The impetus for this post is Colorado Bar Association Opinion 146.  I suggest reading the opinion. It goes into more detail than I will.  Here’s my summary.

The opinion begins with a reminder that the Rules of Professional Conduct:

  • “create a series of obligations to ensure clients receive competent, diligent, and zealous representation. The keystone of these obligations is the principle that clients are entitled to sufficient attention to their legal matters, as well as sufficient access to their lawyers.” (emphasis added).

The highlighted sentence says it all. In short, when your workload prevents you from paying “sufficient attention” to a client’s matter, or from providing a client with “sufficient access,” it’s likely excessive.

I could stop there.

Especially since Comment [2] to Rule 1.3 of the Vermont Rules of Professional Conduct states that “[a] lawyer’s work load must be controlled so that each matter can be handled competently.”

But I won’t stop yet.  Because I can sense what you’re thinking: “Mike, are you saying that it’s unethical to be too busy?”

No, not really. (Although that’s kind of what Comment 2 to Rule 1.3 says.)

What I’m saying is this: an excessive workload puts a lawyer at risk of violating several duties that the lawyer owes to clients.  For instance, and as the Colorado opinion points out, the duties to provide a client with competent & diligent representation, the duty to communicate to the client sufficient information to allow the client to make informed decisions about the representation, and the duty to avoid conflicts of interest.[1]  Stated differently, it’s problematic when a lawyer is too busy with Clients A, B, and C to provide Client D with competent & diligent representation.

What’s “excessive?”

Good question.

The Colorado opinion stresses that “determining when a workload is excessive under the rules of professional conduct is necessarily fact specific.” Nevertheless, citing to caselaw and advisory opinions from the ABA and other jurisdictions, the Colorado opinion lays out workload “considerations” for public defenders, prosecutors, Legal Aid lawyers, and private practitioners. Rather than regurgitate those considerations here, I refer you to the section of the opinion that applies to you.

Next, the opinion pivots from a lawyer’s duty to manage their own workload to the duties owed by lawyers who supervise others. Here, the opinion reminds supervisors of their “responsibility to ensure that subordinate lawyers’ workloads are adequately regulated so that each client receives competent and diligent legal representation.”  As the opinion points out, this responsibility includes the supervision of people in the firm or office who are not lawyers but who work on client matters.[2]  Similarly, the opinion cautions lawyers who work under the supervision of another that they “may be required to alert their supervisor or managing lawyer if their workload is such that they are unable to handle the matters assigned” competently and diligently.[3]

In sum, remember, at some point, a workload becomes so excessive as to put a lawyer at risk of violating the most basic duties owed to clients.

Oh, and one other thing: while this post isn’t about wellness, I’m a firm believer that an excessive workload negatively affects wellness and, in so doing, puts both lawyers and their clients at risk.

As always, let’s be careful out there.

[1] Vermont’s rules on competence, diligence, communication, and conflicts of interest are essentially the same as Colorado’s. 

[2] Vermont’s rules on supervising other lawyers and supervising nonlawyers are essentially the same as Colorado’s

[3] Vermont’s rule that sets out the duties of a “subordinate lawyer” is essentially the same as Colorado’s

Monday Morning Honors #292

Michael Leave a comment

The sun is shining, it’s light past 5:30, and today is the last day of its name in February.  Happy Monday indeed!

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

Honor Roll

  • Alberto Bernabe, Professor, UIC School of Law
  • Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labor
  • Andy Delaney, Martin Delaney & Ricci
  • Heather Devine, Tarrant Gillies Shems
  • Bob Grundstein
  • Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
  • Douglas Keehn, Assistant Attorney General, Medicaid Fraud & Residential Abuse Unit
  • Jeanne Kennedy, JB Kennedy Associates, Mother of the Blogger
  • Patrick Kennedy, Amazon Web Services, The First Brother
  • John T. Leddy, McNeil Leddy & Sheahan
  • Jordana Levine, Marsicovetere & Levine
  • Pam Loginsky, Pierce County (WA) Prosecutor’s Office
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Team MOB-kingbird (Evan Barquist & Kristen Connors)
  • Noah Rosenthal, Fenwick
  • Kevin Shortell, Peet Law Group
  • Joe Strain, Marsicovetere & Levine
  • Jonathan Teller-Elsberg, Staff Attorney, New Hampshire Legal Assistance
  • Jason Warfield, Jason Warfield Family Law & Mediation
  • Thomas Wilkinson, Jr., Cozen O’Connor

ANSWERS

Question 1

Here are some words & phrases that I used when responding to an ethics inquiry:

  • Concurrent
  • Significant risk
  • Materially limited by the lawyer’s responsibilities

Which of the 7 Cs of Legal Ethics was the subject of the inquiry?

Conflicts.   This words & phrases appear in Rule 1.7(a)(2), which states that a lawyer has a concurrent conflict of interest whenever there is a significant risk that the representation of a client will be materially limited by the lawyer’s responsibilities to another, a former client, a third party, or a personal interest of the lawyer.

Question 2

By rule, how long after the termination of a representation must a lawyer maintain complete records of funds & property held in connection with the representation?

  • A.  3 years.
  • B.  6 years.  V.R.Pr.C. 1.15(a)(1)
  • C.  7 years.
  • D.  Trick question. The rule is silent on this issue.

Question 3

A lawyer has a duty to consult with the client about the means by which the client’s objectives are to be accomplished.

  • A.   False.  The lawyer controls the means and is under no duty to consult with the client about the means by which the client’s objectives will be pursued.
  • B.   False.   The lawyer must abide by a client’s decisions with respect to the means by which the client’s objectives are pursued.
  • C.   True.  V.R.Pr.C. 1.2(a)

Question 4

Over the years, I’ve used each of these phrases when responding to inquiries. Which is in a different rule than the others?

  • A.  don’t state or imply that you’re disinterested.
  • B.  if the person is seeking a second opinion from you, you don’t need the consent of the person’s current lawyer to communicate with the person.
  • C.  if the person misunderstands your role, correct the misunderstanding.
  • D.  if the person’s interests are likely to conflict with your client’s, don’t give the person any legal advice other than the advice to secure counsel.

A, C, and D are part of Rule 4.3, which sets out a lawyer’s duties to an unrepresented person.  B is part of Rule 4.2, which governs communications with a person who is represented by counsel.

Question 5

Speaking of uncles and nephews.

William “WW” Watkins Vaughan was a lawyer in Pawhuska, Oklahoma.  In June of 1923, Vaughan met with a prospective client named George Bigheart.  At the time, Bigheart was in a hospital in Oklahoma City.  Doctors suspected he had been poisoned.  Bigheart told Vaughan that he had information that could prove that two men had committed/arranged numerous brutal murders in another part of the state. 

That night, Vaughan boarded a train back to Oklahoma City. He never arrived. The next morning, a porter who went to wake him, found his berth empty and unused.  Later, Vaughan was found dead on the tracks just a few miles outside Pawhuska.  Bigheart died in the hospital on the same day.

The two men who Bigheart suspected of murder likely poisoned him.  One was later convicted of murder after the other, his nephew, pleaded guilty to murder and agreed to testify against his uncle.  A lawyer who worked for the uncle was sent to prison for 1 year for bribing a witness to change her testimony.

A movie about the brutal crimes committed by the uncle and nephew is currently streaming on Apple TV and is available to buy or rent on Amazon Prime.

Name the movie, which is based on a book.

Killers of the Flower Moon

Monday Morning Answers #291

Michael

Happy Monday! 

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

Honor Roll

ANSWERS

Question 1

Exceptions to this duty include:

  • to respond to allegations in any proceeding concerning the lawyer’s representation of the client;
  • to establish a claim or defense in a controversy between the lawyer and the client; and,
  • to resolve and detect conflicts of interests arising from a lawyer’s change or potential change of employment.

What duty?  CONFIDENTIALITY – V.R.Pr.C. 1.6

Question 2

Attorney contacted me with an inquiry. I listened, then replied: “the rule requires you to keep it in trust until the dispute is resolved.”  Given my response, it’s most likely that:

Question 3

There’s a rule that sets out the conditions under which a conflict of interest can be waived. One condition is when “each affected client gives informed consent, confirmed in writing.”

Fill-in-the-blanks.  Each correct answer is a form of the same word.

A comment to the same rule states:

“Whether REVOKING consent to the client’s own representation precludes the lawyer from continuing to represent other clients depends on the circumstances, including the nature of the conflict, whether the client REVOKED consent because of a material change in circumstances, the reasonable expectations of the other client and whether material detriment to the other clients or lawyer would result.”

V.R.P.C. 1.7, Cmt. [20]

Question 4

Lawyer works at Firm.  Lawyer and Firm have entered into a written employment agreement that requires Lawyer to pay Firm $1000 for every client that follows Lawyer if Lawyer leaves to work somewhere else.  Which is most accurate? 

  • A.  There is no Vermont Rule of Professional Conduct that addresses this issue.
  • B.  The Vermont Rules of Professional Conduct specifically allow this type of agreement, as long as Lawyer’s payment to Firm does not increase the fee charged to a client who follows Lawyer.
  • C.   Whether the agreement is enforceable will likely turn on an analysis of the Vermont Rule of Professional Conduct that prohibits lawyers from making agreements that restrict their right to practice law.  See, this blog post.
  • D.  Whether the agreement is enforceable will likely turn on an analysis of the rules that govern conflicts of interest.

Question 5

Competence? Threatening criminal prosecution?

In a fictional work published in 1600, Portia was not a lawyer.  However, during a trial central to the plot, she pretended to be both a man and a lawyer.  She “represented” Antonio in a contractual dispute with Shylock.  Shylock had loaned money to Antonio.  When Antonio did not repay the money, Shylock sought the remedy specified in the contract.

Portia asked Shylock to accept recompense other than as stated in the contract – first suggesting that he show mercy to Antonio, next offering to pay Shylock 3 times what Antonio owed.  Still, Shylock refused, insisting that he receive the contractual remedy.

In the end, Portia prevailed, pointing out that the while the contract provided a specific remedy, it did not give Shylock the right to take even a drop of Antonio’s blood. Indeed, the evidence suggests that Portia threatened Shylock with criminal prosecution in order to gain an advantage in the civil matter.

What’s the well-known phrase that, per the contract, was Shylock’s remedy for Antonio’s failure to repay the loan?  POUND OF FLESH

Bonus: what’s the title of the fictional work?  THE MERCHANT OF VENICE

Monday Morning Honors #286

Michael

Happy Monday! 

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

Honor Roll

Answers

Question 1

Speaking of my mother, she’s a member of the Williston-Richmond Rotary Club.  Yesterday, I spoke to the club.  Over the past 12 years, I’ve done more than 300 presentations.  This was the first organized by my mother. The pressure was on!

Anyhow, after outlining the Professional Responsibility Program, I used the 7 Cs of Legal Ethics to explain what the club members should and should not expect from lawyers.  When I asked for guesses as to the 7 Cs, one person said “contact.”  I considered it correct.


Which of the 7 Cs of Legal Ethics did I give the person credit for identifying?

Communication.  The person’s point was that “I’d want my lawyer to stay in contact with me.”

Question 2

Does the confidentiality rule include an exception that allows a lawyer, without the client’s consent, to disclose information necessary to detect conflicts of interests that might arise from a potential change of employment?

  • A.  Yes.  There’s a specific exception that allows such disclosures, but only if the disclosure will not compromise the attorney-client privilege or otherwise prejudice the client.  See, V.R.Pr.C. 1.6(c)(5).
  • B.  A, and only if the lawyer is moving to private practice from government practice.
  • C.  A, and only if the lawyer is moving to government practice from private practice.
  • D.  No.

Question 3

There’s a rule that prohibits a lawyer from entering into a business transaction with a client unless (1) the terms are fair and fully disclosed in a writing that can be reasonably understood by the client; (2) the client is advised in writing of the desirability of seeking independent legal advice related to the transaction; and (3) the client gives informed consent, in writing, to the transaction’s terms and the lawyer’s role in the transaction.

A comment indicates that the rule does not apply to:

  • A.  Ordinary fee agreements.
  • B.  Standard commercial transactions between lawyer & client for goods, services, or products that the client markets to others.
  • C.  Agreements in which the lawyer accepts an ownership interest in the client’s business as a fee.
  • D.  A & B.  V.R.Pr.C. 1.8(a), Cmt. [1].

Question 4

Here’s the lone comment to a particular rule:

“Dilatory practices bring the administration of justice into disrepute. Although there will be occasions when a lawyer may properly seek a postponement for personal reasons, it is not proper for a lawyer to routinely fail to expedite litigation solely for the convenience of the advocates. Nor will a failure to expedite be reasonable if done for the purpose of frustrating an opposing party’s attempt to obtain rightful redress or repose. It is not a justification that similar conduct is often tolerated by the bench and bar. The question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay. Realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client.”

The rule requires a lawyer to:

  • A.  act with reasonable diligence and promptness while representing a client.
  • B.  refrain from conduct that is prejudicial to the administration of justice.
  • C.  provide a client with competent representation.
  • D.  make reasonable efforts to expedite litigation consistent with the interests of the client.

It’s Rule 3.2 – Expediting Litigation.

Question 5

A petition to cancel a registered mark made national news this summer.  The registered mark is a phrase that refers to food and a day of the week.

According to the petition:

  • “Nobody should have exclusive rights in a common phrase.  Can you imagine if we weren’t allowed to say ‘what’s up?’ or ‘brunch’? Chaos.”

The petition went on to indicate the petitioner “seeks no damages; it simply seeks reason and common sense.”

What phrase did the petition seek to cancel as a registered mark?  TACO TUESDAY

Bonus: Who was the petition filed on behalf of? Taco Bell

I blogged about the petition here.