Monday Morning Honors

Good morning.

You rowed through another weekend! Great job!  Not to sound like this person . . .

. . . but keep rowing! It’s all we can do.

If you missed them, Friday’s questions are here.  The answers follow today’s announcements and Honor Roll.

Announcements

• Video CLE

I recorded another video the Garage Series this weekend.  In it, I share thoughts & tips on complying with the Rules of Professional Conduct during the COVID-19 public health crisis.  Each video is approved for ethics CLE:

• Professional Responsibility & COVID-19 
• Trust Accounting 1 – Don’t fear, simplify.
• Trust Accounting 2 – Basics (and don’t commingle)
• Sailing the 7 C’s of Legal Ethics

These add up to 2 hours of ethics CLE.   Later today, I’m recording Part 3 in the Trust Accounting Series.

• The Championship Match

After two weeks of voting, we are down to the championship match of the inaugural Professional Responsibility & Legal Ethics tournament.  Thank you to all who have voted!  Most of you have informed me that you’ve based your votes on “which rule/concept is more important?”  The finalists:

• • Candor to the Tribunal: Rule 3.3
  • Who decides? Lawyer or Client?  Rule 1.2(a)

To vote, go to THE CHAMPIONSHIP.

For a list of results from prior rounds, go here

I’m not sure whether it’s good or bad, but the winner of the My Cousin Vinny bracket did not advance to the championship.  Speaking of that bracket, I shed but a brief tear that the collective you preferred “Did you say yutes?” over “Were these MAGIC grits?” 

Honor Roll

• Penny Benelli, Dakin & Benelli
• Alberto Bernabe, Professor, John Marshall Law School
• Honorable John M. Conroy, United States Magistrate Judge, District of Vermont
• Beth DeBernardi, Administrative Law Judge, VT Dept. of Labor
• Erin Gilmore, Ryan Smith & Carbine
• Laura Gorsky, Esq.
• Robert Grundstein, Esq.
• Tammy Heffernan, Esq.
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• John Leddy, McNeil Leddy & Sheahan
• Tom Little, Little & Cicchetti
• Kevin Lumpkin, Sheehey Furlong & Behm
• Jeffrey Messina, Bergeron Paradis Fitzpatrick
• Hal Miller, First American
• Herb Ogden, Esq.
• Jim Runcie, Ouimette & Runcie
• Norman Smith, Esq.
• Jay Spitzen, Esq.
• Robyn Sweet, CORE Registered Paralegal, Cleary Shahi  & Aicher
• Ashley Taylor, Horsley Lajoie Goldfine
• Jonathan Teller-Elsberg, Vermont Law School, JD Candidate

Answers

Question 1

Lawyer represented Client. The representation ended yesterday.   By rule, what must Lawyer retain for 6 years?

• A.   Client’s file.
• B.   a copy of Client’s file.
• C.   a copy of the advertisement that led Client to Lawyer.
• D.   complete records of property & funds held in trust for Client.  Rule 1.15(a)(1).

Question 2

By rule, attorneys are subject to compliance audits by disciplinary counsel.  Compliance with what?  The rule(s) on _____________________:

• A.  trust accounting.  Rule 1.15A(b)
• B.  keeping clients reasonably updated as to the status of their matters.
• C.  adequately protecting client information that is stored electronically.
• D.  file delivery.

Question 3

True or false?

Under Vermont’s rules, all conflicts of interest can be waived.

FALSE.  See, Rule 1.7(b) for a list of criteria that, if present, indicate that a conflict cannot be waived.

Question 4

Attorney called me with an inquiry.  I listened, then replied:

“For it to be okay, 3 things have to happen.  (1) It has to be in proportion to services you render, or, if not, you have to agree to assume joint responsibility for the representation; (2) the client has agree and confirm the agreement in writing; and, (3) the total has to be reasonable.”

What did Attorney call to discuss?

• A.   a contingent fee agreement.
• B.   entering into a limited representation agreement.
• C.   sharing a fee with a lawyer in another firm.  Rule 1.5(e).
• D.   settling a malpractice claim with a former client who is not represented by counsel.

Question 5

As most of you know, live sporting events are on hold.

One of the last large-scale sporting events to take place before the pandemic tightened its devastating grip was The Mint 400.  Held annually in Nevada, it’s one of the oldest & most prestigious off-road races in the country.

Raoul Duke is a fictional character.  In a famous novel, he was hired by a magazine to cover The Mint 400.  He brought his lawyer with him.  Per the novel’s, wiki entry, client and lawyer’s:

• “job is repeatedly obstructed by their constant use of a variety of recreational drugs, including LSD, ether, cocaine, alcohol, mescaline, and cannabis. This leads to a series of bizarre hallucinogenic experiences, during which they destroy hotel rooms, wreck cars, and have visions of anthropomorphic desert animals, all the while ruminating on the decline of both the ‘American Dream’ and the ’60s counterculture in a city of greed”

Whoa.  Talk about attorney wellness!

Name the novel and the lawyer.

Novel:  Fear & Loathing in Las Vegas: A Savage Journey to the Heart of the American Dream

Lawyer: Dr. Gonzo.

 

Monday Morning Answers – #78

Friday’s quiz is here.  Today, the answers follow the Honor Roll.

And today’s Honor Roll includes something special.  For quite some time, Laura Gorsky regularly appeared on the Honor Roll while studying & working in the 4-year Law Office Study program.  She was recently admitted to the bar and, today, makes her first Honor Roll appearance as a full-fledged attorney.  Congratulations Laura!

Honor Roll

• Carolyn Browne Anderson, Green Mountain Power; Vermont PRB
• Matt Anderson, Pratt Vreeland Kennelly Martin & White
• Alberto Bernabe, Professor, John Marshall School of Law
• Lindsay Cabreros, First American
• Beth DeBernardi, ALJ, Department of Labor
• Laura Gorsky, Esq., Law Office of David Sunshine
• Robert Grundstein
• Anthony Iarrapino, Esq
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Patrick Kennedy, Dealer.Com
• Tom Little, Esq.
• Jeffrey Messina, Bergeron Paradis & Fitzpatrick
• Hal Miller, First American
• Jim Runcie, Runcie & Ouimette

Answers

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 another client, a former client or a third person or by a personal interest of the lawyer.  Rule 1.7

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; Rule 1.7, Comment [18]
• 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

By rule, each of the others must be in writing.  The terms of a basic fee agreement must be communicated to a client, “preferably in writing,” but there is no requirement that the agreement be reduced to writing.  To avoid misunderstandings down the road, reducing a fee agreement to writing is best practice, even absent a rule requiring you to do so.

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?

Requesting a person other than a client to refrain from voluntarily giving relevant information to another party.  Rule 3.4(f); See, PRB Decision 78

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 writer:  Hunter S. Thompson.  The trips inspired Fear & Loathing In Las Vegas.  Acosta served as the basis for the character Dr. Gonzo.