Five for Friday #262

Welcome to Friday and the 262^nd #fiveforfriday legal ethics quiz!

As a runner, finding something to associate with “262” is easy for me: a marathon is 26.2 miles. If you’re wondering, the name and distance reflect the 40 kilometers that a messenger allegedly ran from Marathon to Athens to share the news of the Greek’s victory.

Yes. Nothing inspires runners more than racing a distance named for someone who collapsed and died after delivering the message.

Anyhow, when introduced at the Athens Olympics in 1896, the event was 40K, which is 24.8 miles.  We can blame the British monarchy for the extra 1.4 miles. At the 1908 London Olympics, the original 40K course was lengthened at both ends to accommodate the royals’ viewing pleasures. 

Several months ago, I used this Friday intro to share the story of my utter incompetence in signing up for the 2022 Boston Marathon.  Yesterday, I received confirmation that I’d managed to register for Boston 2023. Years ago, I’d have turned the news into today’s intro.

However, today, it’s not running that I associate with 262 and marathons.

Disclosure: printed words can only convey so much. Please do not interpret the next paragraph as me being in any sort of funk. I’m not. And I’m about to go for a run in the sun followed by a drive to Lake Morey for the VBA meeting. I’m looking forward to the early foliage and to seeing people who I haven’t seen in a long, long time. Introspection, even shared in a public post, isn’t a cause for worry.

Rather, over the past week, I’ve wondered if we mislead ourselves when we tell ourselves that life is a marathon, not a sprint. The truth is, none of us knows when we’ll reach the finish line. Maybe we are in a sprint.  If so, from a wellness perspective and thinking of the value in making time for who and what matters, perhaps we are best served by using 262 as an occasion to reflect on our priorities.

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 consider sharing the quiz with friends & colleagues
• Share on social media.  Hashtag it – #fiveforfriday

Question 1

Which “C” rule includes exceptions for a lawyer to make an inquiry of bar counsel, as well as to secure legal advice about the lawyer’s compliance with the Rules of Professional Conduct?

Question 2

There’s a rule that imputes a lawyer’s conflicts of interest to all other lawyers in the same firm. The rule does not apply to a particular group of lawyers. Rather, it specifically states that “disqualification of lawyers associated in a firm with former or current _____________ is governed” by a different rule.  The rule that applies to this group creates a relaxed imputation standard.  One reason for the relaxed standard is to ensure that lawyers are attracted to work in this group. 

What group? Former or current __________:

• A.  law professors.
• B.  government attorneys.
• C.  legislators.
• D.  All the above.

Question 3

Two days ago, the ABA Standing Committee on Ethics and Professional Responsibility issued an advisory ethics opinion.  The opinion focused on whether a lawyer who self-represents is a “party” or is “representing a client.” After reading the opinion, I wondered if Vermont should amend its rule.  What did the opinion address?

Whether self-represented lawyers:

• A.  can count the work as “pro bono.”
• B.  are subject to the rule that prohibits communication with a represented person without the consent of the represented person’s lawyer.
• C.  have standing to file a disciplinary complaint against themselves for lack of competence or diligence.
• D.  before proceeding, must get informed consent from themselves due to the inherent conflict in being both lawyer and client.

Question 4

With respect to tech competence, last week the Virginia Supreme Court approved an advisory opinion that concluded that a lawyer who does this creates a risk “that the lawyer’s client will respond in a way that the lawyer would not advise or desire.”

Does what?

Question 5

95 years ago today, George Herman Ruth, Jr. became the first major league baseball player to hit 60 home runs in a single season.  Four years later, he lost a legal case.  A patent court ruled that, contrary to the slugger’s claim, a popular product had, in fact, been named after President Grover Cleveland’s daughter.

As of right now, I’m leaning towards including the product in a blog that I post at the end of October with my updated product rankings for a certain holiday.

Name the product.

Monday Morning Honors #259

Happy Monday!  Only one more before Labor Day.  Make sure to enjoy the last few weeks of the unofficial end of summer!

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

Many thanks to all who informed me that it’s perfectly okay, and perhaps desirable, to clip the flowers growing on my basil. 

Honor Roll

• Alberto Bernabe, Professor, UIC School of Law
• Martha Bonneau, Blogger’s Aunt
• Beth DeBernardi, Administrative Law Judge, Vermont Department of Labor
• Robert Grundstein
• Glenn Jarrett, Jarrett/Hoyt
• Keith Kasper, McCormick, Fitzpatrick, Kasper and Burchard
• Jeanne Kennedy, JB Kennedy Associates, Mother (of the) Blogger
• Mark Kennedy, Retired, Father of the Blogger
• Patrick Kennedy, Amazon Web Services, First Brother
• John T. Leddy, McNeil, Leddy, Sheehan
• Jonathan Teller-Elsberg, Sheehey Furlong & Behm
• Jason Warfield, J.D.

Answers

Question 1

I often discuss the 7 Cs of Legal Ethics. At a recent seminar, I used a quote from George Bernard Shaw to discuss one of the 7 Cs.  In my view, Shaw’s quote accurately captures a dynamic that, in my experience, leads clients to file disciplinary complaints.  Fill in the blank with the correct C.

“The greatest problem in communication is the illusion that it has been accomplished.”

I agree.  Many disciplinary complaints aren’t caused so much by a lack of communication as they are by miscommunication: the lawyer thinking the matter was explained to the client when it wasn’t.

Question 2

While I haven’t blogged much lately, one of my recent posts highlighted a real-life example of how reconciliation helped a Vermont firm to stop trust account fraud.  It was the third such example I’d blogged about this year. 

What’s the rule on reconciling pooled interest-bearing trust accounts?  It must occur:

• A.           “regularly.”
• B.           “quarterly.”
• C.           “in a manner consistent with generally accepted accounting principles.”
• D.           “timely.”  The rule goes on to state that “timely reconciliation means, at a minimum, monthly reconciliation of such accounts.” 

My posts on reconciliation as a tool to prevent trust account fraud are here, here, and here.

Question 3

Saul represents Client.  Kim represents Opposing Party.  Unbeknownst to Lawyer, Client contacts Attorney to discuss the subject of the representation.  Does the rule allow Kim to discuss the matter with Client?

• A.           No.  See, V.R.Pr.C. 4.2, Comment [3] (“The rule applies even though the represented person initiates or consents to the communication.)
• B.           Yes, because a party is always free to contact opposing counsel.
• C.           Yes.  The comments make clear that, in this situation, Client has consented to the communication. 
• D.           Wait.  Kim & Saul are still licensed to practice.

Question 4

Lawyer called me with an inquiry.  I listened, then replied.  “You’re definitely out.  Whether your conflict is imputed to all depends on whether it presents a significant risk of materially limiting the representation of the client by the other lawyers in your firm.”

Given my response, Lawyer’s conflict involved:

• A.           A personal interest.   The question refers to Vermont’s rule on imputed conflicts of interest.  My response, and answer A, reflect the standard set out in V.R.Pr.C. 1.10(a).  By contrast, situations B and C are always imputed.
• B.           A former client.
• C.           A current client.
• D.           Lawyer’s paralegal.

Question 5

Questions 3 and 4 don’t do it justice.  So, while this one might only interest me, I’d be disappointed in myself if I didn’t use this week’s Question 5 to reference Monday’s series finale of my favorite “law” show of all-time.

Here is a license plate that hangs in my garage.

I’d love to add signs from “Palm Coast Sprinklers,” “Ice Station Zebra Associates,” or this one:

In real-life, audiences first saw the license plate on a different show.  However, on the two shows’ fictional timeline, the plate first appeared in the show that ended this week — on a car driven by the eponymous lawyer of questionable ethics.  While easy to like the lawyer — and the show’s other lawyers — it’s tough to believe that many of them still have their law licenses.

Name the show whose final episode aired earlier this week.

BETTER CALL SAUL

Bonus: in the same show, another license plate featured prominently in several episodes. It was on a Jaguar owned by a lawyer mentioned in Question 4. What was the license plate?

Howard Hamlin’s Jaguar bore the plate NAMAST3

Five for Friday #258

Welcome to Friday and the 258^th legal ethics quiz.

A few years ago, I used the intro to a June quiz to urge readers to take advantage of summer sooner rather than later. Too often, it seems that I don’t get my summer started until waking up on Bennington Battle Day only to realize that Labor Day is just around the corner. This week, a few thoughts combined to remind me of that post.  As the thoughts have marinated, they’ve caused me to wonder if summer, or at least a northern summer, is but a metaphor for life.  Hopefully, I can explain.

Earlier this week, my mom shared a story of having recently called a childhood friend.  The friend lives in a care home now, her memory not what it once was.  She’s happy, and remembered my mom, but she also thought that it was August.  Watching and listening, I sensed that my mom was torn — glad to have talked with her friend, but sad that the person she spoke with was no longer the same person as the person my mom had been friends with all these years.

Oddly, the next day, I read an essay by a person whose college friend recently passed while in his mid-30s. The author described how the two didn’t see each other much after graduation, but always vowed to “stay in touch.”  They did, if only getting together once a year.  The author expressed joy and gratitude at having stayed in touch, because even though the logistics were difficult at times, the memories made by finding and making time to get together are now the only thing he has to remember his friend.  Unstated, but stated well, was the point that while we frequently tell old friends “Let’s stay in touch,” we don’t.

Which brings me to Dave Laberge.

I met Dave in 2^nd grade.  We’ve been best friends ever since. Dave’s that friend with whom I experienced so many “firsts.”  Communion, bike ride to the quarry, varsity game, night in a bar with (and without) a legal ID.  I’m sure there are many others.  I could go on & on about Dave and our adventures, like I did for too long during my best man speech a few years ago, but I won’t.  Those adventures aren’t the point.

The point is that this week, I realized that I haven’t seen or heard from Dave in a few years.  He lives in the Kingdom, where he and his brother own & operate Will-O-Wood Campground. I used to go up at least once a year, and Dave would always text or call when he was in town to visit family.  I’m not sure how we let that stop.  Thinking about it, I resolved that this summer will include a trek to the campground.

And that gets me back to my idea that, perhaps, summer is a metaphor for life.

Like the summers at Will-O-Wood, life is short.  Soon enough, our longest friends won’t be in our lives anymore — whether a bit too far away to visit, in a home not really knowing who we are, or gone.  Our relationships with those friends will become memories, like summer does once Labor Day passes.

So, maybe in addition to making sure to get out and do “things” this summer, another idea might be to seek out that old friend with whom you assumed you’d always be in touch but aren’t.  Because no matter your season in life, there’s still time to make summer memories.

Oh, and by the way, it’s June 24^th.  Which means happy birthday to my old friend Dave Laberge!

Onto the quiz!

Rules

•  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 consider sharing the quiz with friends & colleagues
• Share on social media.  Hashtag it – #fiveforfriday

Question 1

According to the Rules of Professional, which of the 7 Cs of Legal Ethics is implicated when a lawyer provides “financial assistance to a client in connection with pending or contemplated litigation?”

Question 2

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

“Be wary of disclosing too much. I think it’s best to cite to the specific provision of the rule that either requires it or allows it. Then, if the court asks for additional detail, provide it. I’ll send you a case from Tennessee in which a lawyer was publicly reprimanded for disclosing too much information in a motion, even though the trial court granted the motion.”

What did Attorney call to discuss?  Filing ______

• A.  a motion to withdraw.
• B.  an ex parte motion.
• C.  a motion to disqualify the judge.
• D. motion to disqualify opposing counsel.

Question 3

There’s a rule that governs “pooled interest-bearing trust accounts.”  Nobody I know calls such accounts by their formal name.  Anyhow, what is a pooled interest-bearing trust account?

• A.  unethical and prohibited by the rule.
• B.  an account that’s better known as an “operating account.”
• C.  an account that generates interest that a lawyer must remit to the client.
• D.  an account that generates interest that a lawyer must remit to the Vermont Bar Foundation.

Question 4

 In honor of the presentation I’m giving later today at the Defender General’s Annual Training.

While I don’t plan to address this rule, there’s a rule that states that a criminal defense lawyer “may nevertheless so defend the proceeding as to require that every element of the case be established.”  Generally, what does the rule prohibit?

• A.  Representing a client at a trial in which the lawyer will be a necessary witness.
• B.  Frivolous claims and contentions.
• C.  Conflicts of Interest.
• D.  False statements of material fact to a tribunal.

 Question 5

 William Saxbe was born on June 24, 1916. He was a lawyer who served as Ohio’s Attorney General, a United States Senator, and United States Attorney General.

In 1966, while serving as Ohio Attorney General, Saxbe argued before the United States Supreme Court.  The case involved Sam Sheppard, a doctor who had been convicted of murdering his wife.  The US Supreme Court remanded for a new trial, citing, among other things, a “carnival atmosphere” that had permeated the first trial and the trial judge’s bias against the defendant.

In the U.S. Supreme Court and at the retrial, Dr. Sheppard was represented by a well-known lawyer.  During the retrial, the lawyer argued that the prosecution’s case was “ten pounds of hogwash in a 5-pound bag.”  The jury apparently agreed: Dr. Sheppard was acquitted.  Later, in 2001, the lawyer was disbarred in Florida and, in 2014, denied admission to Maine’s bar.

The case inspired a novel and a hit movie starring Harrison Ford and Tommy Lee Jones.

Name the movie and the now disbarred lawyer who represented Dr. Sheppard.

Monday Morning Honors #255

Happy Memorial Day!

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

Honor Roll

• Matthew Anderson, Pratt Vreeland Kennelly Martin & White
• Evan Barquist, Montroll Oettinger & Barquist
• Alberto Bernabe, Professor, UIC School of Law
• Benjamin Gould, Paul Frank + Collins
• Robert Grundstein
• Anthony Iarrapino, Wilschek & Iarrapino Law Office
• Glenn Jarrett, Jarrett & Luitjens
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Deb Kirchwey, Law Office of Deborah Kirchwey
• Elizabeth Kruska, Immediate Past-President, Vermont Bar Association
• John Leddy, McNeil Leddy & Sheahan
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Jeffrey Messina, Esq.
• Hal Miller, Hawaii Agency Underwriting Counsel, First American Title
• Herb Ogden
• Jonathan Teller-Elsberg, Sheehey Furlong & Behm
• The Honorable John Valente, Vermont Superior Judge
• Lucia White, Mediator & Paralegal, Nanci Smith Law

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?

This Rule 1.9 – Duties to Former Clients.  It addresses both Conflicts and Confidences.

 Question 2

 There is a rule that prohibits lawyers from charging or collecting an unreasonable fee.  Which is most accurate? The rule ___________________:

• A.  also prohibits a lawyer from agreeing to an unreasonable fee. Rule 1.5 – Fees
• B. includes an exception that allows a lawyer to charge a fee that is otherwise unreasonable if the client agrees.
• C. includes an exception that allows a lawyer to charge a fee that is otherwise unreasonable if the client agrees, if the client was afforded a reasonable amount of time to seek independent legal advice about the fee before agreeing to it.
• D. includes an exception that allows a lawyer to charge a fee that is otherwise unreasonable if the client agrees, if the fee agreement is confirmed in a writing that is signed by the client.

 

Question 3

By rule, a “prospective client” is one who, in good faith, discussed with a lawyer the possibility of retaining the lawyer but, for whatever reason, did not retain the lawyer.  Which is most accurate?

Per the rule, the lawyer shall not represent a client:

•  A.  with interests materially adverse to the prospective client.
•  B.  with interests materially adverse to the prospective client in the same or a substantially related matter.
• C.  with interests materially adverse to the prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to the prospective client. Rule 1.18 – Duties to Prospective Client
• D  None of the above.  This is a trick question.  Vermont has not adopted the ABA Model Rule that applies to “prospective clients.”

 Question 4

 Lawyer called me with an inquiry. I listened, then replied “one of the exceptions to the general prohibition against disclosure applies.  However, you should limit your response to disclosing only the information that is reasonably necessary to establish a defense or to respond to the allegations.”

Given my response, it’s most likely that the allegations have been made against __________:

• A.  A current client of Lawyer.
• B.  A former client of Lawyer.
• C.  A or B.
• D.  Lawyer. Here, I was referring to Rule 1.6 – Confidentiality of Information.  Paragraph(c)(3) includes the so-called “self-defense” exception.  Last week, I referenced the rule & exception in this post about the Illinois judge who ordered Drew Peterson’s former lawyer not to disclose information relating to the disappearance of Peterson’s missing wife.

Question 5

Yesterday, testimony finally ended in a defamation trial that has lasted 6 weeks and garnered significant media attention. The trial included disturbing and troubling evidence of physical and emotional abuse. It also included something that is quite rare in trials: while examining a witness, a lawyer objected to his own question.

Name either of the parties to the defamation case.

The parties are Johnny Depp and Amber Heard.  Here’s the moment when the lawyer objected to his own question.  To be fair, media ran with this.  As LegalEagle explains here, the lawyer was more trying to strike the answer more than to object to his own question.

Five for Friday #255

Welcome to Friday and the 255^th legal ethics quiz.

Readers are in luck.  I’m at a loss for words and behind schedule.  Therefore, no intro today.

Instead, I’ll leave you with this post from Memorial Day weekend in 2018.  In it, I marked the occasion of the Vermont City Marathon by using concepts and phrases associated with legal ethics & professional responsibility to interview several lawyers and judges who run marathons.

Enjoy the long weekend and good luck to readers who are running in the Vermont City Marathon!

Onto the quiz!

Rules

•  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 consider sharing the quiz with friends & colleagues
• Share on social media.  Hashtag it – #fiveforfriday

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?

 Question 2

 There is a rule that prohibits lawyers from charging or collecting an unreasonable fee.  Which is most accurate? The rule ___________________:

• A.  also prohibits a lawyer from agreeing to an unreasonable fee.
• B.  includes an exception that allows a lawyer to charge a fee that is otherwise unreasonable if the client agrees to the fee.
• C.  includes an exception that allows a lawyer to charge a fee that is otherwise unreasonable if the client agrees, but only if the client was afforded a reasonable amount of time to seek independent legal advice about the fee before agreeing to it.
• D.  includes an exception that allows a lawyer to charge a fee that is otherwise unreasonable if the client agrees, but only if the client was afforded a reasonable amount of time to seek independent legal advice about the fee before agreeing to it and the fee agreement is confirmed in a writing that is signed by the client.

 Question 3

By rule, a “prospective client” is one who, in good faith, discussed with a lawyer the possibility of retaining the lawyer but, for whatever reason, did not retain the lawyer.  Which is most accurate?

Per the rule, the lawyer shall not represent a client:

•  A.  with interests materially adverse to the prospective client.
•  B.  with interests materially adverse to the prospective client in the same or a substantially related matter.
• C.  with interests materially adverse to the prospective client, in the same or a substantially related matter, if the lawyer received information from the prospective client that could be significantly harmful to the prospective client.
• D.  None of the above.  This is a trick question.  Vermont has not adopted the ABA Model Rule that applies to “prospective clients.”

 Question 4

Lawyer called me with an inquiry. I listened, then replied “one of the exceptions to the general prohibition against disclosure applies.  However, you should limit your response to disclosing only the information that is reasonably necessary to establish a defense or to respond to the allegations.”

Given my response, it’s most likely that the allegations have been made against __________:

• A.  a current client of Lawyer.
• B.  a former client of Lawyer.
• C.  A or B, the rule doesn’t distinguish between them.
• D. Lawyer.

 Question 5

Yesterday, testimony finally ended in a defamation trial that has lasted 6 weeks and garnered significant media attention. The trial included disturbing and troubling evidence of physical and emotional abuse. It also included something that is quite rare in trials: while examining a witness, a lawyer objected to his own question.

Name either of the parties to the defamation case.

Monday Morning Honors #253

Happy Monday!  And happy it is (for me) with the week’s forecast!

Many thanks to all who participated in last week’s Well-Being Week in Law. On Wednesday I’ll post a recap that includes a list of those who got involved.  Remember:  there’s no need to limit well-being to a single week in May!  Let’s make it a habit in Vermont’s legal community!

Friday’s questions are here.  The answers follow today’s Honor Roll.  Suffice to say that my Kentucky Derby picks turned out to be undeserving of honor.

• Matthew Anderson, Pratt Vreeland Kennelly Martin & White
• Evan Barquist, Montroll Oettinger Barquist
• Andrew Delaney, Martin Delaney & Ricci Law Group
• Robert Grundstein
• Deborah Kirchwey, Law Office of Deborah Kirchwey
• John T. Leddy, McNeil Leddy & Sheahan
• Jeff Messina, Messina Law
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Keith Roberts,
• Jonathan Teller-Elsberg, Sheehey Furlong & Behm
• The Honorable John Valente, Vermont Superior Judge
• Jason Warfield, J.D.
• Thomas Wilkson, Jr., Cozen & O’Connor

ANSWERS

Question 1

 At CLEs and in response to ethics inquiries, I often state “it’s broader than the privilege.”  When I do, which of the 7 Cs of Legal Ethics am I referring to?  The duty of _____________.

CONFIDENTIALITY.  Rule 1.6 – Confidentiality of Information, Cmt. [3]

Question 2

Which appears in a different rule than the others?

• A.  explain a matter to the extent reasonably necessary for the client to make informed decisions about the representation.
• B.  is likely to be a necessary witness.
• C,  unless the testimony relates to an uncontested issue or to the nature and value of legal services rendered in the case.
• D.  unless disqualification of the lawyer would work substantial hardship on the client.

Option A is language from Rule 1.4 and is an aspect of a lawyer’s obligation to communicate with clients. Tip: in my opinion, clients can’t make reasonably informed decisions about the representation absent reasonable expectations about the representation and unless their lawyer provides them with candid legal advice.

 Options B, C, D appear in Rule 3.7 – Lawyer as Witness

 Question 3

 When using the following phrases at a CLE, what am I discussing?

• prohibited when representing the defendant in a criminal case.
• prohibited in exchange for securing a divorce;
• prohibited if based on the amount of spousal maintenance, spousal support, or property settlement in lieu thereof.
• allowed in post-judgment divorce actions that involve collecting past due spousal maintenance.

A contingent fee. See, Rule 1.5 – Fees

Question 4

In which of the situations below are the rules governing conflicts of interest stricter than the others?  When a lawyer:

• A.  in private practice represents clients at a pro bono clinic sponsored by a court or non-profit.
• B.  moves from private practice to government work.
• C.  moves from government work to private practice.
• D. transfers from one private firm to another private firm.

In A, B, and C, Vermont’s rules allow for screening even if the affected lawyer participated personally and substantially in a matter at a prior job.  That is NOT the case when a lawyer moves from one private firm to another.  If the lawyer’s new firm represents a client whose interests are materially adverse to those of a client represented by the lawyer’s old firm in the same matter, the new firm is disqualified if the lawyer participated personally and substantially in the matter while at the old firm.  See, Rule 1.10 – Imputation of Conflicts of Interest – General Rule and this blog post.

 Question 5

 I’m not positive how widespread the news is, but some of you might have learned that a draft Supreme Court opinion was leaked this week.  Discussing it during our bread debrief, the First Brother and I agreed that we were less surprised by the leak than we were that it hadn’t happened before.  Well, as it turns out, there has been at least one other instance in which a well-known Supreme Court opinion was leaked to the press prior to being released. Indeed, it involved not one, but two leaks.

First, shortly after the arguments, the Washington Post ran a story about the Court’s internal deliberations on the case. The story included a leaked memo that one justice had written to the others.  Seven months later, and a few hours before the Court announced its opinion, Time Magazine published the opinion and the details of the vote. The incident resulted in the then Chief Justice imposing a so-called “20 second rule,” a rule that a law clerk caught communicating with the media would be fired within 20 seconds.

What was the name of the case in which the opinion was leaked?

Bonus: who was the Chief Justice who imposed the 20-second rule?

The case is Roe v. Wade.  At the time, Warren Burger was the Chief Justice.  Among others, NPR and the Washington Post have coverage.

 

Five for Friday #252

Welcome to Friday and the 252^nd legal ethics quiz!

Later today, Andrew Manitsky and I are presenting a CLE at the YLD Thaw in Montreal. Our seminar will focus on the duty of candor. With that in mind, would you believe me if I told you that you could both win a prize and secure internet fame merely by writing a single “thank you” note next week?

Maybe you wouldn’t.  And maybe my statement includes a scoop of puffery and a dash of paltering. But,  the statement includes kernels of truth!

Next week is Well-Being Week in Law. This participation guide includes 187 suggestions, with the suggestions divided among the different themes assigned to each day.  Don’t worry. I’m not asking people to do 187 things or even to do something every day. Indeed, as the guide indicates, Well-Being Week in Law

• “is designed so that people and organizations can participate in any way that fits their goals and capacities. If you want to participate in multiple things every day, that’s great. But also feel free to select only a few things over the entire week that match your priorities.”

So, I’m asking folks to consider finding ONE thing to do during the week. And that one thing doesn’t even have to be from the list of 187 suggestions – choose whatever works for you!

Now, back to the “thank you” note.

Many of the guide’s suggestions can be completed in 20 minutes or less. No amount of participation is too “small” or “inconsequential.” Indeed, as we know too well, when it comes to improving the profession’s well-being, there is no step too small to take. For example, sending a “thank you” note qualifies!

In fact, here’s how easy it is.

Yesterday, I sent notice of Well-Being Week in Law to many who are part of Vermont’s legal community. A friend texted. The friend had recently learned that “expressing gratitude” can improve wellness. So, the friend asked whether thanking me for looking out for their wellness qualifies as participation. I replied that it does. Then I thanked the friend for asking. Boom! We’d both done our one thing!

Oh, yeah. Prizes and internet fame.

The Institute for Well-Being in the Law is offering a chance to win prizes by completing the 2022 Well-Being Week in Law Participation Survey.  Or, you can show your commitment to well-being by participating in the Social Media Challenge.  Finally, I will use my blog and Twitter account to mention any member of Vermont’s legal community who lets me know that they, their co-workers, or their office/firm participated, even if just barely, in Well-Being Week.

With all this in mind, hardly seems that my opening statement was misleading or deceptive!

Finally, and to tie this message to the week’s quiz number, yes, my goal is for as many folks as possible to consider doing 1 thing during Well-Being Week in Law. However, here’s my dream. It’s rooted in the palindromic nature of “252.”

What if you chose 2 things over the week’s 5 days? Then, what if you turned around and did the same the following week?

Here’s to the Vermont legal community making well-being a habit!

For more on Well-Being Week in Law and how to participate, see this blog post.

Onto the quiz!

Rules

• 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 consider sharing the quiz with friends & colleagues
• Share on social media. Hashtag it – #fiveforfriday

Question 1

Lawyer works at Firm. If Lawyer has a conflict of interest that prohibits Lawyer from representing Client, which type of conflict is least likely to be imputed to the other attorneys in Lawyer’s firm? A conflict that arises from:

• A.  Lawyer’s representation of a former client.
• B.  Lawyer’s current representation of another client.
• C.  a personal interest of Lawyer’s.
• D.  trick question. In VT, all conflicts are imputed to others in the same firm.

Question 2

Can a lawyer accept compensation from someone other than the client?

• A. Yes, but only if the payor is related to the client.
• B.  Yes, but only if the payor is the client’s insurance company or employer.
• C.  Yes, if the client gives informed consent, the payor doesn’t interfere with the lawyer-client relationship, and information relating to the representation of the client is not disclosed to the payor except as authorized by the rule on client confidences.
• D.  A & B.

Question 3

Under Vermont’s rules, if a lawyer reasonably believes that a client intends to commit an act that will result in the death of or substantial bodily harm to the client, the lawyer ____:

• A.  must disclose the client’s intention.
• B.  must not disclose the client’s intention.
• C.  may disclose the client’s intention.
• D.  It depends on how old the client is.

Question 4

Lawyer called me with an inquiry related to a potential conflict between a prospective client and a former client. We discussed the distinction between the lawyer’s general knowledge of the former client’s policies and practices, versus the lawyer’s knowledge of specific facts gained during the prior representation that are relevant to the new matter.

As such, it’s most likely that Lawyer’s former client is _________:

• A. a minor.
• B.  an organization.
• C.  deceased.
• D.  represented by a law firm that once employed Lawyer.

Question 5

The Thaw is on my mind.

With “most” defined as “all,” most of my knowledge of the British Commonwealth’s legal system comes from tv and movies. Last week, I binged Anatomy of a Scandal. Set in England, here are the lawyers who appeared in a criminal trial:

A few years ago, I loved the Australian show Rake. Here’s the main character:

So, if I bump into a Canadian lawyer this weekend, I might ask the lawyer if they have a peruke. It’s altogether possible that the lawyer will have no idea what “peruke” means. If so, what’s the word I’ll use instead? The more common term for a “peruke?”

Negative infinity points for any smart aleck comments that I should get my own a peruke.

 

Five for Friday #249

Welcome to Friday and the 249th legal ethics quiz!

You know what?  249 isn’t 250.  It’s nowhere near as interesting, exciting, or motivating.  In fact, last night, while looking forward to next week’s milestone, I wondered if I’d even find the inspiration to post today.

I like to recognize occasions.  So much so that I tend to lose track of what happens leading up to them.  And by “lose track,” I mean that I often get so caught up in what I consider to be a notable event, occasion, or milestone, that I don’t enjoy the moments along the way.

That’s not good.  Too often, I miss too much.  Especially when, as can happen, the occasion doesn’t match the anticipation and leaves me regretting what I missed leading up to it.

So therein lies my challenge with the introduction to Quiz 249.  Again, 249 ain’t 250. But you know what?  I can’t celebrate #250 without posting #249 first.  So, last night, I resolved to find something about this moment.

I’m training for a marathon.  My current schedule calls for speed work on Thursdays and long runs on Saturdays. For each, I look forward to both the challenge and the sense of accomplishment upon completion.  To me, speedwork and long runs are events, occasions worth noting.

Friday runs? Not so much. Right now, Fridays are “recovery runs.”   Runs that aren’t fast or long.  They’re necessary, but boring.  There’s literally nothing remarkable about them.

But maybe that’s the wrong way to approach them. Maybe the challenge of training for the marathon is to find something special in each and every run.  After all, marathon day can go bad quickly.  So why measure success or appreciation for what happened by the race result instead of by the rewarding moments throughout the training process?

Here’s why.

Because I’m not much into mumbo jumbo about journeys, destinations, and smelling roses.

Still, today, I tried.

Yesterday was 8 miles with speed work mixed in.  It was one of my best workouts in a while.  Tomorrow, I hope to run more than 20 miles, the longest run of the training cycle so far.  Today?  The plan called for a whole lot of “not much.”  Not exactly an occasion.  Plus, between having to drop my car off at the garage this morning and today’s work schedule, there wasn’t much time for a run.  Especially one that didn’t interest me. So, I considered skipping it altogether.

But I didn’t.

Instead of dropping off my car and then hopping the bus to work, I brought it over early and ran home.  Why? To make an otherwise boring “short” run interesting: to turn it into an occasion.  So, nearing home, I focused on my GPS, weaving around the neighborhood, purposefully arriving in my driveway exactly at this moment:

Will today’s run make a difference on race day? Nope.  But it made a difference today.

Don’t get lost waiting for life’s 250s.  There are events, occasions, and opportunities in every moment, even the 249s.  Allow yourself to experience as many as you can.

Onto the quiz!

Rules

•  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 consider sharing the quiz with friends & colleagues
• Share on social media.  Hashtag it – #fiveforfriday

Question 1

 At a CLE later today, I’ll urge lawyers to set reasonable expectations with clients at the outset of the representation. I’ll also remind them that a lawyer’s duty is to provide candid legal advice, even if it’s advice that the client doesn’t want to receive.

During that portion of the seminar, which 2 of the 7 Cs of legal ethics will I mention?

Question 2

 With respect to legal ethics, the phrase “going up the ladder” is most often used in connection with the duties of an attorney who:

• A.  is duty bound to report another attorney to disciplinary authorities.
• B.  represents an organization.
• C.  is being paid by someone other than the client.
• D.  has a side business painting houses.

Question 3

 Prospective Client wants to retain Lawyer for representation in a divorce from Spouse.  Spouse’s business deals will be a significant issue in the divorce.  Lawyer’s paralegal used to work at the law office that is representing Spouse.  While there, Paralegal participated personally & substantially on legal matters related to Spouse’s business deals.

Under Vermont’s rules, which is most accurate?

• A.  Lawyer may not represent Prospective Client. Paralegal has a conflict and it’s imputed to Lawyer.
• B.  Lawyer may represent Prospective Client.  Prospective Client knows all about Spouse’s business deals.  Therefore, there’s no risk that Paralegal will share confidential information.
•  C. Lawyer may represent Prospective Client, but only if  Spouse gives informed consent, confirmed in writing.
• D.  Lawyer may represent Prospective Client.   Paralegal’s conflict is not imputed to Lawyer.  So that Paralegal does not share any confidential information about Spouse, Lawyer should screen Paralegal from any involvement in the divorce.

Question 4

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

• “Notice should come from you and your firm. A few years ago, the ABA issued an advisory ethics opinion that stated that it’s preferable to issue a joint notice.  The notice should go to all clients who deal (or who have dealt) directly with you.  What the clients do after that is up to them.”

Given my response, what will Attorney soon be doing?

Question 5

 I rarely take requests for Question 5.  However, I was recently sitting at McGillicudy’s when Rick, a non-lawyer friend and fellow stool sitter, mentioned that he’d tried a recent quiz and hadn’t gotten any right.  I replied that he shouldn’t, because he’s not a lawyer!  Then, my brother told him to try another quiz, but only to worry about Question 5.

Still, I was surprised.  We were sitting in our regular bar talking, however briefly, about legal ethics and professional responsibility?!?!  The word is spreading!  So, I asked Rick his favorite fictional lawyer and promised to dedicate Question 5 to that lawyer.  Rick replied something to the effect “it’s ironic that on an ethics quiz you’ll basically be telling me the answer ahead of time!”

Aha! I did no such thing! I asked his favorite fictional lawyer. I never said that lawyer would be the answer to Question 5!

How lawyerly of me to ruin the moment.

Anyhow, Rick’s favorite fictional lawyer is Seinfeld’s Jackie Chiles.  So, without further ado, here’s to Rick!

In an episode of Seinfeld, Kramer retains Jackie Chiles to sue a woman who Kramer alleges caused him to crash his car.  Here’s a snippet of one of their conversations:

Kramer: And she’s the heir to the ________ candy bar fortune.
Jackie Chiles: Could you repeat that?
Kramer: I said she’s the heir to the ________ candy bar fortune.
Jackie Chiles: _________? That’s one of our top-selling candy bars. It’s got chocolate, peanuts, nougat. It’s delicious, scrumptious, outstanding!

Later, at trial, things go awry after Jackie asks the woman to try something on and it doesn’t fit.

Question 5 is a fill-in-the-blank:  what candy bar?

Bonus:  what did Jackie ask the woman to try on?

Monday Morning Honors in Legal Ethics: #247

Welcome to Monday! Friday’s questions are here. The answers follow today’s Honor Roll.

Many readers reported an interest in Theranos content.  Alas, not one mentioned Killing Eve!  Still, congratulations to the Honor Rollees!

Honor Roll

• Karen Allen, Karen Allen Law
• Evan Barquist, Montroll Oettinger & Barquist
• Penny Benelli, Dakin & Benelli
• Alberto Bernabe, Professor, University of Illinois at Chicago Law
• Beth DeBernardi, Administrative Law Judge, Vermont Department of Labor
• Corinne Deering, PACE Registered Paralegal®, Paul Frank + Collins
• Andrew Delaney, Martin Delaney & Ricci
• Cary Dube, Bergeron, Paradis, Fitzpatrick
• Benjamin Gould, Paul Frank + Collins
• Robert Grundstein
• Glenn Jarrett, Jarrett & Luitjens
• Deb Kirchwey, Law Office of Deborah Kirchwey
• Jim Knapp, Esq.
• Elizabeth Kruska,Immediate Past-President, VBA Board of Bar Managers
• John T. Leddy, McNeil Leddy Sheahan
• Pam Loginsky, Deputy Prosecuting Attorney, Tacoma (WA)
• Kevin Lumpkin,Sheehey Furlong & Behm
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
• Herb Ogden, Esq.
• Keith Roberts, Darby Kolter & Roberts
• Jonathan Teller-Elsberg, Sheehey Furlong & Behm
• Honorable John Valente, Vermont Superior Judge
• Jason Warfield, J.D.
• Thomas Wilkinson, Jr., Cozen O’Connor
• Zachary York, Paralegal, Sheehey Furlong & Behm

 

ANSWERS

Question 1

 Does an e-mail qualify as a “writing” for the purposes of any of the Vermont Rules of Professional Conduct that require something to be in writing?

YES.  See, V.R.Pr.C. 1.0(n).

 Question 2

 Attorney represents Eve in Eve v. Villanelle.  Attorney called me with an inquiry about the matter.  After listening, I asked a question to which Attorney responded “yes.”  So, I replied “parties are always free to communicate with each other.  But there’s a rule that prohibits you from violating the rules through the act of another. So, take care not to script something for Eve to parrot to Villanelle.”

When Attorney responded “yes,” what question had I asked?

• A.  Whether Eve is related to Villanelle.
• B.  Whether Eve is Villanelle’s supervisor at work.
• C.  Whether Villanelle is a former client of Attorney’s.
• D.  Whether Villanelle is represented in the matter.

Question 3

 At a CLE, imagine I answer a question by saying:

• “Whenever someone asks you to disclose information that’s in a current or former client’s file, absent the client’s informed consent to disclose the information, the most prudent course is to inform the person that you require a subpoena. Then, your duty is to raise all non-frivolous arguments against disclosure in a motion to quash. If the court enforces the subpoena and compels disclosure, the rule permits you to comply with the order, even over your client’s objection.”

Arguably, at least 3 of the 7 Cs of Legal Ethics are implicated in this scenario.  However, which of the “C” duties were we most likely discussing when the question was asked?

CONFIDENTIALITY.  See, my blog post Subpoena to Disclose Client Information?

 Question 4

 Lawyer and Client agree that Lawyer will represent Client for a “nonrefundable fee” of $X.  The agreement is confirmed in a writing that defines the scope of the services that Client will receive in exchange for the nonrefundable fee.  The agreement does not prospectively limit the Client’s ability to challenge the reasonableness of the non-fundable fee.  Both Lawyer and Client sign the agreement.

Client advances $X to Lawyer.  By rule, Lawyer

• A.  must deposit the fee into an IOLTA and withdraw the fee as earned.
• B.  must not deposit the fee into an IOLTA.  That would be commingling. See, V.R.Pr.C. 1.5(f) and 1.5(g). 
• C.  must prepare a new fee agreement that does not use the phrase “nonrefundable fee.”
• D.  C & self-report to disciplinary counsel.

See also, Trust Account Tuesday: Nonrefundable fees.

Question 5

 Yesterday, Hulu released the first three episodes of The Dropout. It’s based on the real-life story of a person whose sensational criminal trial concluded in January.  A jury found the person guilty of multiple charges related to defrauding investors of millions.  According to NPR, the verdict “capped the downfall of one of Silicon Valley’s most dynamic and scandal-plagued young executives who promised to revolutionize blood testing with an innovative technology that required just a small sample of blood pricked from a patient’s finger.”

The saga first garnered significant publicity following investigative journalist John Carreyrou’s 2015 release of Bad Blood: Secrets and Lies in a Silicon Valley Startup.  The attention included discussions of legal ethics and professional responsibility.  Indeed, according to a law review article that was published last year, the “story touches on multiple areas of professional responsibility, including competence, diligence, candor, conflicts, and liability . . . [and] serves as a helpful tool to explore the limits of ethical lawyering.”

Name the company at the center of the saga.  THERANOS

Bonus: name “the dropout” who was recently convicted of the criminal charges.  ELIZABETH HOLMES

 

Five for Friday #245: Snow Days

Welcome to Friday and the 245^th legal ethics quiz.

Around Vermont, today is the day that school-aged me loved more than any other.  A day within the academic calendar that enjoys romanticized status.

The snow day.

I’m too old to remember what we did on snow days.  I tell myself that the First Brother and our friends grabbed our red plastic sleds (mine had yellow handles) and bravely trudged through the storm to our favorite sliding spots.  Yes, we call it “sliding.”

One such spot was Blueberry Hill.  At least that’s what the kids who lived in the neighborhoods off Williston Road called it.  I doubt that name appears on any official map or record.  In my memory, it was a treacherous hill that demanded great bravery.  There was a sharp right turn about halfway down.  Take it too wide and you’d slam into a tree, cut it too tight and you’d fall off a cliff into a ravine.  Even among those who properly navigated the corner, only the most courageous steered towards the jump that older kids built had into the run – a jump that, if taken, resulted in “legend” status the following day in the cafeteria.

If we could visit Blueberry Hill today, we’d probably laugh at how small – and not steep – it seems in comparison to the mountain of our memories.  Alas, there’s no longer any sliding there.  Like Joni Mitchell sang, they paved our wintry paradise and put up a condominium complex.  And while I’m suspect that the kids who live in our old neighborhoods have found a hill to conquer, I’m convinced that they’ll never know the best part of our experience: the way that we learned it was a snow day.

Scrolling through Twitter last night, I saw this:

It’s time-stamped 6:33 PM.  I’m by no means criticizing the announcement or the many like it posted by other school districts. Advance notice is a good thing, especially for parents who need to plan.  Alas, I feel for the kids who will never know the experience of waking up early, turning on the radio, and waiting to learn whether your school was on the list of closings.

For us, the anticipation was intense.  Schools were called alphabetically, and we lived in South Burlington.  Sure, there were signs.  If Burlington schools were closed, our hopes would rise as there’s no way we’d be open if they’re closed!  Or, conversely, if Essex or Jericho schools weren’t announced, our spirits would sink, knowing that if they’re open, we will be too.  Still, we never knew until we knew.

While I don’t remember the exact list, I remember it feeling like the radio announcer was listing the Rs in slow motion . . .

• “Randolph High School . . . Richford High School . . . Richmond Elementary . . . “

Oh, to be so young and carefree that our whole lives turned on what came next!

Would it be the soul-crushing “Stowe Middle and High School?”  Or the four greatest words in the history of snow days? “

“All South Burlington Schools.”

Maybe the anticipation I remember can be replicated by constantly refreshing the school district’s Twitter feed.  Or maybe hopes rise & fall with the results spit out by the Snow Day Calculator.  Still, I’ll always smile when I reminisce about those winter mornings huddled around the radio.

Onto the quiz!

Rules

•  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 consider sharing the quiz with friends & colleagues
• Share on social media.  Hashtag it – #fiveforfriday

Question 1

Here are some exceptions to one of the rules:

• to establish a claim or defense in a controversy between the lawyer and client;
• to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved; or,
• to respond to allegations in any proceeding concerning the lawyer’s representation of the client.

The rule addresses one of the 7 Cs of Legal Ethics.  Which one?

 Question 2

Fill in the blank.

A comment to one of the conflicts rules states that “continued common representation will almost always be inadequate if one client _________________.”

• A.  pays a higher percentage of the lawyer’s fee than the other client.
• B.  is also a former client, but in an unrelated matter.
• C.  is the lawyer’s main contact on matters related to the representation.
• D.  asks the lawyer not to disclose to the other client information relevant to the common representation.

Question 3.

Notwithstanding a conflict of interest, a lawyer may represent a client if

• A. The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client and the representation is not prohibited by law.
• B.  The representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal.
• C.  Each affected client gives informed consent, confirmed in writing.
• D.  A, B, and C.

Question 4

Lawyer called with an inquiry. I listened, then responded:

• “There’s no rule that specifically prohibits it. But the fee must be reasonable, you must comply with the rule on business transactions with a client, and you should consider whether it would create a personal interest that would materially limit your ability to provide the client with competent and candid legal advice.”

Given my response, it’s most like that Lawyer called to ask about:

• A.  a contingent fee.
• B.  accepting an ownership interest in a client’s business as payment for legal fees.
• C.  representing a family member.
• D.  marrying a client.

Question 5

In the introduction, I mentioned something that I saw on Twitter the other day.  Another thing that I saw on Twitter this week was this:

Each rewatching of My Cousin Vinny should count towards an attorney's CLE credits.

— Waqar Vick Rehman (@WaqarVick) February 3, 2022

I agree!

Vinny’s clients were charged with robbing and shooting a store clerk.  However, when they were arrested, they thought it was for accidentally shoplifting.  While at the store, Vinny’s cousin didn’t pay for an item he had put in his pocket because his hands were full.

What was the item?

Bonus: what’s the name of the store?