FIve for Friday

Monday Morning Honors #299

Michael Leave a comment

Happy Monday! 

While I’d prefer it to remain so the entire day, I savor the bright sunny mornings that we know will soon give way to rain.  No – that wasn’t a metaphor.  Merely an observation based on the fact of the forecast.

Friday’s questions are here.  The answers follow today’s Honor Roll.  Kudos to The First Brother for using Question 5 as motivation to watch the top 3 the ABA’s list of the 25 Greatest Legal Movies of All-Time.

For those of you following the Karen Read trial, buckle up!  The cross-examination of Brian Albert could get interesting.  Will today be when the so-called “third party culprit” defense kicks into overdrive?

Finally, a special welcome to the Honor Roll to two judges: Jack Lu, retired justice of the Massachusetts Superior Court, and, for the first time as sitting judge, the Honorable Susan McManus!

Honor Roll

  • Karen Allen, Karen Allen Law
  • Penny Benelli, Dakin & Benelli
  • Beth DeBernardi, Administrative Law Judge, Vermont Department of Labor
  • Benjamin Gould, Paul Frank + Collins
  • Robert Grundstein
  • Glenn Jarrett, Jarrett/Hoyt
  • Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
  • Douglas Keehn, Assistant Attorney General, Medicaid Fraud & Residential Abuse Unit
  • Patrick Kennedy, The First Brother, AI Network Engineer, Amazon Web Services
  • John T. Leddy, McNeil Leddy & Sheahan
  • Honorable Jack Lu, Retired Associate Justice, MA Superior Court
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Honorable Susan McManus, Vermont Superior Judge
  • Jeffrey Messina, Flynn Messina Law
  • Hal Miller, First American Title Insurance Company (and the shores of SoCal)
  • Patrick Olmstead, Patrick Olmstead Law
  • Jonathan Teller-Elsberg, Staff Attorney, New Hampshire Legal Assistance
  • Jason Warfield, Jason Warfield Family Law & Mediation
  • Peter Young, General Counsel, Vermont Rail System

ANSWERS

Question 1

If continued representation of a client will result in a violation of the Rules of Professional Conduct, a lawyer ___________.

  • A.   must withdraw from the representation.  V.R.Pr.C. 1.16(a)(1).
  • B.   may withdraw from the representation.
  • C.   must abide by the client’s decision as to whether the lawyer should withdraw from the representation.
  • D.  B or C.

Question 2

Which is in a different rule than the others?

  • A.   whether to settle a civil claim.
  • B    whether to accept a plea offer in a criminal case.
  • C.   whether to testify in a criminal case.
  • D.   whether two matters are the same or substantially related.

Options A, B, and C are part of Rule 1.2, the rule that addresses the allocation of decision-making authority between lawyer and client.  Option D is in Rule 1.9(a), the rule that sets out a lawyer’s duties to former clients.

Question 3

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

  • “The rule says that you can’t do so unless the client gives informed consent or unless doing so is impliedly necessary to carry out the representation.”

Given my response, Lawyer and I were discussing the rule that prohibits a lawyer from doing what unless one of the exceptions is present?

Disclosing (otherwise confidential) information relating to the representation of the client.  See, V.R.Pr.C. 1.6.

Question 4

When a lawyer decides to leave a law firm to join another, which is most accurate?

  • A.  There is no duty to provide advance notice to the law firm.
  • B.   Two weeks’ notice is the generally accepted minimum.
  • C.   Four weeks’ notice is the generally accepted minimum.
  • D.   The reasonableness of the notice provided will depend on the specific circumstances.  See, this blog post.

Question 5

I’ve used this question before. I’ve also used it during multiple live quizzes and seminars.  Alas, it’s one of my favorite questions, I failed to search for a good Question 5 during the week, and I don’t have the time to search for one now. So, here goes nothing.

In 2019, the ABA updated its list of the 25 Greatest Legal Movies of All-Time. Two of the top 3 are set in the same state.

Name the state and the two movies.

The state? Well, as Walker Hayes sings, “just tryna keep my wife, from figuring out, that I married up, and she married way, way down in Alabama where they love Nick Saban.” The movies are To Kill a Mockingbird and My Cousin Vinny. The entire list is here.

Five for Friday #298

Michael 2 Comments

Happy Friday!  And welcome to the 298th legal ethics quiz![1]

Last week’s intro generated a fantastic response. I loved learning about your collections, including those that, for various reasons, were disposed of by someone else without notice to you. Indeed, next week, as part of Well-Being Week in Law, I intend to share a list of the things that readers collect and used to collect.

With your responses fresh in mind, I was struck by a thought as I cleaned my house & garage last weekend.  Specifically, that in addition to our cherished collections, our lives also include “collections” of things that we never wanted or meant to keep.  The thought popped into my head as, yet again, I found myself sweeping and vacuuming pine needles.

When it comes to Christmas trees, I’m decidedly old school. I will never ever get together with an artificial tree. I prefer the real thing and find them spectacular.

I’m also decidedly rigid on my Christmas tree rules.

  • My trees remain in my garage for a minimum of two days after being purchased, thereby assuring they’ve fallen out before I start to decorate. 
  • They go into my house at least two weeks before Christmas, thereby giving me sufficient time to get into the spirit of the season.  
  • The “Drummer Boy” ornament that my mom gave me when I was a young child goes on first and gets the most prominent spot. 
  • No stars or angels for me: the tree is capped by a Boston Celtics stocking. 
  • Finally, to assure I remain in the spirit of the season as long as possible without creating a fire hazard, my tree remains up at least until the College Football National Championship Game, which is usually the 2nd Monday in January.

Back to pine needles.

I fully understand that dragging a real tree in and out of my house will leave needles behind. I’m also aware that needles will fall off throughout the month (or so) that the tree is up. 

What drives me bonkers, however, is how long after Christmas I continue to find needles when I clean!

Am I the world’s best housekeeper? Not even close.  But, trust me, I can sweep, I can vacuum, and it’s not like I go weeks without doing either. Still, as I did every other time I cleaned so far this year, I found pine needles last weekend. They’re something I manage to collect, without having any desire to do so.

Which, with last week’s intro in mind, made me wonder, what else do I have that I never meant to accumulate?

Fortunately, not much. As I’ve aged and moved, I’ve gotten better at ridding myself of the useless and extra.[2] That said, when I took a break from cleaning to make another pot of coffee, I realized that I have an absurd number of coffee mugs.  Nineteen to be exact. 

19!! Coffee mugs!! I live alone and never invite people over for coffee![3]

So why do I have 19 mugs?  To me, it’s a mystery. To Papa, it’d be ridiculous.

Anyhow, if this moves you to share whatever it is that you wish you didn’t have so many of, feel free. I’d love to learn! 

In the meantime, onto the quiz![4]

Rules

  • None.  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honestly.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply.
  • Please do not post answers as a “comment” to this post.
  • E-mail answers to michael.kennedy@vtcourts.gov
  • Team entries welcome, creative team names even more welcome.
  • 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

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.

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.
  • 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.

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

Question 5

Contains a spoiler!!

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 announced a “not guilty” verdict, 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.”

[1] For those of you signed up for automatic notifications, I apologize for this morning’s exceedingly rare non-quiz Friday post.

[2] Of course, I still have the following souvenirs from my childhood: my baseball gloves, hockey stick, aluminum baseball bat, tennis racket, and Wiffle Ball bat.  Why do I have them? Who knows.  Every time I endeavor to get rid of them, I tell myself “Self, you never know when you might want to use this.” And I always agree with myself.

[3] I’m embarrassed to add that it’s not at all uncommon for my dishwasher or kitchen sink to have 5 or 6 dirty mugs. Apparently, I’m incapable of using the same mug as I did for the previous cup.

[4] PS: While I like Fierceness to win and think that Honor Marie and Just a Touch will run well, I’m not making Kentucky Derby picks this year. Last year, my 3 picks didn’t fare too well. Two scratched, and the third finished 7th.  Meanwhile, former VBA President Elizabeth Kruska’s picks finished 1st, 3rd, and 4th. Now that’s competence! Anyhow, this ABA Journal story about the Debry interested me. By analogy, it’s akin to the client of a lawyer whose license has been suspended asking for a court order allowing the lawyer to appear.

Five for Friday #297

Michael 5 Comments

Happy sunny Friday and welcome to the 297th legal ethics quiz!

I was bored the other night. Nothing on tv interested me, it was too early to go to bed, and the book I intend to read next had yet to arrive from Amazon.[1] So, I grabbed a magazine that I didn’t even really know I had. I mean, I knew there were some magazines on my coffee table, but until I rifled through them, I couldn’t have told you which ones were there.

Turns out, I snagged the 1000th issue of Rolling Stone. The issue includes dozens of vignettes about prior covers. Leafing through sent me on a fantastic trip down memory lane that, to the say least, cured my boredom.  Eventually, I thought to myself “Self, I’m glad you bought this and saved it!” Then, looking closer, the mailing label made me realize I hadn’t bought it – I was a subscriber!

So, I looked through the others I’d saved.  There were three, the oldest being RS668: Pearl Jam.[2] This told me that I was a subscriber for at least 14 years!

I don’t remember the last issue I received in the mail.  I assume I canceled the subscription once I learned I could just read online. In a way, this made me sad. While I never collected Rolling Stone magazines, I’d clearly saved some.  And, as I said two paragraphs ago, going back through them was fun! Fun in a way that reading archived versions isn’t. It made me wish I’d never stopped subscribing.

In turn, this reminded me of the one magazine that, in fact, I used to collect: Sports Illustrated. I first subscribed to SI when I was in high school. Probably 1982 or 1983. I LOVED the covers and intended to save them forever. 

Around the same time, I had a paper route. That’s right – The First Brother and I were JIMs: Junior Independent Merchants who delivered The Burlington Free Press.  I don’t remember his name, but one of my customers learned of my interest in Sports Illustrated.  He had hundreds, going back to well into the 1970s.  He let me have them! For years, my containers full of SIs resided either with me or in my mom’s basement. They survived until 2018 when, instead of joining me at The Garage Bar, they made their final journey . . . to the recycling facility.

This too made me sad. Why hadn’t I kept them? Even if I only looked through them once a year?.

It made me wonder what else I had stopped collecting that, someday, I’ll wish I had continued to save. I didn’t spend much time “wondering,” quickly remembering that I’ve never been much of a collector or saver. Really, there are only 2 things I’ve saved: ticket stubs from sporting events and race bibs.[3]

Collecting the former sort of died of its own volition with the advent of digital tickets and Apple Wallet. I suppose I could screen shot them, but it’s not the same. I like the feel of going through actual tickets.  Tickets that were much more than bar codes. For example, I miss adding tickets like these to my collection:

Which leaves race bibs as the only thing that I continue to save/collect.  I love them! After each race, I scrawl a few memories of the race on the bib and then hang it with the others. Every now and then I find myself looking at them, thanking myself for making the notes, and, as I did with Rolling Stone Issue 1000, enjoying the trip down memory lane. 

May paper race bibs forever be a thing!

Anyhow, I didn’t mean for this intro to turn wistful or melancholy.  Rather, I intended for it to do what my favorite Friday posts do: cause readers to share their personal stories with me.

My guess is that many of you collect something. I’d love it if you shared that interest with me. I might even follow-up with a post that, without naming names, lists the “things” that we save or collect.

Onto the quiz!

Rules

  • None.  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honestly.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply.
  • Please do not post answers as a “comment” to this post.
  • E-mail answers to michael.kennedy@vtcourts.gov
  • Team entries welcome, creative team names even more welcome.
  • 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 lawyer has a duty not to disclose “information relating to the representation of a client.” A comment to the confidentiality rule states that the rule applies:

  • A.  only to information covered by the attorney-client evidentiary privilege.
  • B.  only to information that, if disclosed without client consent, would be detrimental or embarrassing to the client.
  • C.   A & B.
  • D.  not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.

Questions 2

What does the rule say?

“A lawyer shall ____________

  • A.  abide by the client’s decisions about the means by which the client’s objectives are to be accomplished.”
  • B.  reasonably consult with the client about the means by which the client’s objectives are to be accomplished.”
  • C.  exercise reasonable judgment when choosing the means by which the client’s objectives are to be accomplished.”
  • D.  Trick question.  There is a gap in the rules that, until filled, leaves this issue unaddressed.

Question 3

The general rule is that a lawyer:

  • A.   may pay anyone for a client referral.
  • B.   may only pay for referrals made by other lawyers.
  • C.   shall not give anything of value to a person for recommending the lawyer’s services.
  • D.   C, and there are no exceptions to the general rule.

Question 4

In addition to being subject to the rule that prohibits unreasonable fees, what do divorce lawyers and criminal defense lawyers have in common with respect to the rules governing the fees that they charge?

Question 5

With Rolling Stone so prominent in the intro, I did some research.  Admittedly, some very quick research. I’m not positive that I’m correct, but I believe that the issue dated June 12, 1980, was the first to feature a lawyer on the cover.  The cover story was not about the person’s work as a lawyer, but the person’s “struggle” as a candidate for national office.

Twenty-one years before appearing on the RS cover, the person graduated from the University of Virginia Law School.  The person’s first job as a lawyer was as an assistant district attorney in Suffolk County, Massachusetts.  The person didn’t work as a prosecutor for long. Two years later the person started a new job, one in which they remained until 2009.

The person was the younger sibling of two incredibly famous brothers.  Let’s call the brothers A and B. 

B was also a lawyer.  A was not.  The legal job with which B is most associated is one in which he worked as part of A’s inner circle.

I am 100% certain that every person reading this question has heard of numerous members of the person’s family, including one quite recently!

Name the person who, I think, was the first lawyer ever to appear on the cover of Rolling Stone.

PS: don’t get lawyerly on me. If it turns out that another lawyer appeared on the cover of Rolling Stone before this one did, Question 5 can be changed to “who is the person Mike described in Question 5?”

[1] Yes, I prefer actual books.  No e-reading for me.

[2] I’d also saved RS683: Kurt Cobain and RS682: Melrose Place.  Melrose Place is criminally underrated, and it bothers me to no end that, while a different genre, it’s not held in the same regard as Friends, a show that, in my opinion, is the most overrated in the history of not only rating shows, but of rating anything.

[3] The First Brother and I collected baseball cards as kids. Unlike my SIs, my baseball cards did not accompany me on my various moves. Instead, I left them in the basement of my mother’s house. One day, early in my legal career and not thrilled with it, I decided to scour my baseball cards, hopefully to find one that was worth millions.  Oddly, unlike much of the other “stuff” that we stored in our mom’s basement – for example, my SIs – the baseball cards were gone.  When asked, my mom feigned ignorance.  I didn’t press the issue.  If I had, my guess is that she’d have told me that my pet turtle who “ran away” while we were on vacation when I was about 10 had returned to get the baseball cards and take them to his new place. See, this post and footnote 4.

Five for Friday #294

Michael 1 Comment

Welcome to the 294th Five for Friday legal ethics quiz!

I’m stumped as to topics for this week’s intro. One might think that the eclipse would be natural fodder.  Or the fact that I’m a basketball guy writing on what, arguably, is the biggest weekend in the history of college basketball. 

Nope. I remain stumped.  So, I’ll go with this.

As much as I love sports, and even with it legalized, I don’t bet on sports.  Not because I’m anti-wagering. But because I’m anti “being broke.” 

Which is exactly what I’d be if I took up sports gambling.

Why?

Long-time readers know that I’m the opposite of Michal Scott.  I’m not just a little stitious, I’m superstitious. Instead of making bets with my head, my money would follow my heart and my superstitions.

Straight to the poor house.

For example — and no offense to all who, thanks to Caitlin Clark, are new to the women’s game – I’m picking UCONN to win both national championships that are up for grabs this weekend. 

There are valid reasons for doing so. I won’t bore people by getting into the basketball weeds.  Suffice to say, the UCONN men are stacked at every spot. Meanwhile, much like we did with Dre 25 years ago, the world seems to have forgotten about Paige Bueckers, Geno Auriemma, and UCONN women’s basketball.

Of course, it’s not the valid reasons for doing so that would drive me to bet on UCONN pulling off the double.

Here are some facts:

  • 2004 Women’s Basketball National Champions:  UCONN
  • 2004 Men’s Basketball National Champion: UCONN
  • 2014 Women’s Basketball National Champion: UCONN
  • 2014 Men’s Basketball National Champions: UCONN

2004, 2014 . . .  2024!   Good enough for me and my superstitions!

Which is why I’m not placing any bets.  Because as Stevie Wonder sang long ago:

When you believe in things
That you don’t understand,
Then you suffer,
Superstition aint the way.

Still, go Huskies!

Onto the quiz!

Rules

  • None.  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honestly.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply.
  • Please do not post answers as a “comment” to this post.
  • E-mail answers to michael.kennedy@vtcourts.gov
  • Team entries welcome, creative team names even more welcome.
  • 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’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.”

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.
  • 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?

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.

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. Here’s a bit of the scene:

Vinny: I understand you ___________ with Lisa for two hundred dollars, which she won. I’m here to collect.

J.T.: How ’bout if I just kick your ass?

Vinny : Oh a counter-offer. That’s what we lawyers – I’m a lawyer – we lawyers call that a counter-offer. This is a tough decision here. Get my ass kicked or collect two hundred dollars. Let me think… I could use a good ass-kickin’, I’ll be very honest with you… nah, I think I’ll just go with the two hundred.

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.

Five for Friday #293

Michael 1 Comment

Welcome to the 293rd Five for Friday legal ethics quiz!

Very early on, I decided to document my journey through treatment with pictures. At every appointment, I’d get a photo with the person who was my main contact that day. As a result, I have dozens of pics, most of which include the fabulous nurses who work in the UVM Cancer Center’s Hematology & Oncology unit.

There are different ways to measure the success of the journey. To me, the most important is whether it is a trip marked by hope & joy, or one that gives in to fear & despair. So, I had exactly one rule for the photos: everyone MUST smile. As is evident from this group photo during last month’s graduation from chemo, everyone knew the rule:

Alas, with St. Patrick’s Day upon us, it brings me no joy to share that my first venture to the Republic of Ireland will be made with a picture that does not comply with my “smile” rule.

A few weeks ago, I stopped at the UPS Store to ship a birthday package to the First Brother.[1]  While there, I noticed that they offer passport photos. This was good news!

Why?

Because I’m supposed to have surgery in May. I intend it to go well. Therefore, I’ve made it my goal to run a marathon before the end of the year. Having never been to Ireland, the Dublin Marathon is among those I’m considering.

One problem: I don’t have a passport.

Mine expired long ago and I never bothered to renew it. My natural default would be to procrastinate, not renew it, and use that as an excuse not to sign up for Dublin. Alas, that seems inconsistent with the whole “a journey marked by hope & joy” thing.  So, I’m in the process of renewing. Getting a photo was the last step and, as I did my errands that day, I was quite excited to realize that I could get two birds with one stone at the UPS Store.

Buoyed with such excitement, beginning to imagine the countryside pubs I’d visit during a trek from Dublin to Galway, and with “I have one rule: you MUST smile” still prominently in mind, I stepped to the designated mark in front of the bleak screen with (what I imagined was) a dazzling grin.

Then, the worker paused, lowered the camera, and said something like “umm, not so big of a smile, okay?”

My friend, surely you jest!

Jesting he was not.

Apparently, smiling is disfavored in passport photos. That’s nuts! As a result, if I make the trip, the first thing I’ll do upon arriving at Shannon Airport will be to present my mugshot:

The world needs more smiles.

Whatever road you’re on, may it not only rise up to meet you, but may you travel it with a smile.  

Slainte!

Onto the quiz!

Rules

  • None.  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honestly.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply.
  • Please do not post answers as a “comment” to this post.
  • E-mail answers to michael.kennedy@vermont.gov
  • Team entries welcome, creative team names even more welcome.
  • 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 lawyer called me with an inquiry. I listened, then replied: “the rule states that your first duty is to try to maintain a normal attorney-client relationship with the client.”

Give my response, which is most likely?

  • A.  The lawyer’s client filed a disciplinary complaint against the lawyer.
  • B.  The lawyer learned that the client provided false evidence to the court.
  • C.  The lawyer’s client asked the lawyer to do something that would violate the Rules of Professional Conduct.
  • D.  The lawyer believes that the client’s capacity to make adequately considered decisions in connection with the representation is diminished.

Question 2

There’s a rule that prohibits a lawyer from having a sexual relationship with a client. Which of the following is/are an exception(s) to the rule?

  • A.  A consensual sexual relationship existed before the attorney-client relationship was formed.
  • B.  The client gives informed consent, in writing, to continuing both relationships, thereby waiving the potential conflict.
  • C.  A & B.
  • D.  Neither A nor B.

Question 3

Which situation does the applicable rule treat differently than the others?

  • A. The representation has been rendered unreasonably difficult by the client.
  • B. The representation has resulted in an unreasonable financial burden on the lawyer.
  • C. Continued representation by the lawyer will result in a violation of the Rules of Professional Conduct.
  • D. The client has substantially failed to fulfill an obligation to the lawyer and has been given reasonable warning of the consequences of the failure to fulfill the obligation.

Question 4

Prospective Client (PC) contacted Lawyer.  PC was seeking representation in a matter in which PC’s interests are materially adverse to the interests of one of Lawyer’s former clients.  The new matter is substantially related to the matter in which Lawyer represented Former Client (FC).  However, Lawyer does not remember anything about the representation of FC and no longer has access to the file.

Which is most accurate?

  • A.  Because the matters are substantially related to each other, Lawyer is presumed to have received confidential information from Former Client.
  • B.  Because the matters are substantially related to each other, Former Client will not be required to disclose confidences in order to protect them.
  • C.  A & B.
  • D.  Whether Lawyer can represent Prospective Client necessarily turns on how long ago the representation of Former Client ended.

Question 5

As history tells it, Cicero was one of the great Roman orators.  He was also a capable & competent lawyer. 

Long ago, and at exactly this time of year, Cicero used all his skills to mediate a resolution between two groups: people who had conspired to commit murder, and people who were supporters of the famous victim.

Who was the victim?

Bonus: As history also tells it, before the crime took place, what warning did the victim receive from a “soothsayer?”

[1] Shipping date was March 4. His birthday was February 15.  It’s the thought that counts.

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

Five for Friday #292

Michael 2 Comments

Welcome to the 292nd Five for Friday legal ethics quiz!

So, I had a huge victory this week.  Well, huge to me anyways. It involved Jeopardy, my mom, and my late, great Uncle Ron.

I’ve previously introduced you to my mom and her father. Besides my mom and her four sisters, Nanny & Papa had one son, Ronald Edward Bonneau – aka “Uncle Ron.”

Uncle Ron spent his adult life as a Catholic priest in the Redemptorist Order.  In 1972, he was assigned to a parish in Paraguay, the country where he spent the next 24 years as a missionary. Returning to the USA in 1996, Uncle Ron spent most of the rest of his life working in (often Spanish speaking) parishes in New York City, Toronto, and Annapolis. You can read more about him in his obituary.

The First Brother and I didn’t view Uncle Ron as a priest as much as we did as our quirky, fun-loving uncle. My brother actually lived with Uncle Ron for 10 months.  That’s right, Patrick spent almost a year living at the parish house at Most Holy Redeemer, a church in Alphabet City in the East Village.

I never lived with Uncle Ron. However, whenever he visited Vermont, he stayed with me. Even my mom and her sisters will admit that, sometimes when you’re visiting your sisters, things go better when you stay with your nephew. I proudly served as his getaway on his getaways, and was humbled when he started referring to my condo as his personal “B&B” – Bed and Bourbon.

Now, three things.

Uncle Ron was loud, he loved to watch tv, and he was loud while he watched tv. Upon returning from a day of activities with his sisters, he’d pour himself a bourbon, commandeer the remote, and move his favorite rocking chair directly in front of my television.  And that’s when the loud would begin.

Uncle Ron loved to talk to (and yell at) the characters on his favorite shows. He was particularly fond of the NCIS and Law & Order franchises. He never hesitated to yell at Jack McCoy, Special Agent Riggs, and everyone else when they were doing something foolish. I’m not exactly into “loud,” preferring the quiet of my normal life. But on Uncle Ron’s stays, I enjoyed the entertainment value. Not only of his conversations with fictional people, but of his channel surfing. 

As you probably know, on any given evening, it’s likely that different episodes of Law & Order (or NCIS) are running on multiple channels/streaming sources at the same time. Not only different episodes, but episodes from different canons. For instance, the original Law & Order might be on X at the same time that Law & Order: SVU is on Y. 

Uncle Ron loved this.  As soon as one hit commercial, he’d switch to another. He switched so often that he frequently got confused, forgetting, for instance, that Riggs wasn’t on NCIS: New Orleans and had no reason to know the details of the New Orleans episode that Uncle Ron had just left. As you might imagine, this only caused him to yell even more, convinced that it was the characters, not him, who were confused.

Anyhow, I digress.  Here’s the point of today’s introduction.

My mom, my brother, and I are big fans of Jeopardy. Last summer, while watching together at my mom’s, I learned that Patrick used to watch with Uncle Ron when they lived together in NYC. He told me that as soon as the Final Jeopardy category was revealed, but before the clue was shown, Uncle Ron would yell out a wild guess. I decided that this was a fantastic idea and something worth carrying on as a sort of family tradition. So, ever since, that’s what I do: I yell my guess the moment the FJ category is revealed.

Actually, when I’m watching alone, I don’t yell. I save the yelling for when I’m watching with mom.  Why? Because I know that while she dearly loved her brother and dearly loves me, she doesn’t necessarily find our shenanigans amusing. So, I yell. When she frowns, I remind her that Uncle Ron is watching and, in a sense, controls whether she’ll pass the pearly gates.

Which (finally) gets me to the victory I scored this week.

Since deciding to emulate Uncle Ron last summer, my wild (and loud) guess based only on the category has not once been correct.  Until a few days ago when Ken revealed this FJ category:

As fate had it, I was watching with my mom. I immediately yelled “HUEY LONG!!!”  Even my mom had to smile when, after fast-forwarding thru the commercial break, we saw this clue:

Victory indeed!  And here’s to Uncle Ron!

Onto the quiz!

Rules

  • None.  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honestly.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply.
  • Please do not post answers as a “comment” to this post.
  • E-mail answers to michael.kennedy@vermont.gov
  • Team entries welcome, creative team names even more welcome.
  • 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 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?

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.
  • C.  7 years.
  • D.  Trick question. The rule is silent on this issue.

Question 3

A lawyer has a duty to reasonably 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.

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.

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.

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

Five for Friday #291

Michael 4 Comments

Welcome to Friday and the 291st legal ethics quiz!

Back in the early days of the quiz, I was more creative than I am now. More often than not, I’d find a clever way to tie the intro to the quiz number.  When that wasn’t possible, I’d figure out how to relate the intro to the date.  It’s been ages since I’ve done either. It’s time for that to change.

Alas, not this week.

Onto the quiz!

Rules

  • None.  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honestly.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply.
  • Please do not post answers as a “comment” to this post.
  • E-mail answers to michael.kennedy@vermont.gov
  • Team entries welcome, creative team names even more welcome.
  • 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

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?

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:

  • A.  A client whose advance payment Attorney had yet to earn filed a disciplinary complaint against Attorney.
  • B.   Attorney was duped by a trust account scam.
  • C.   Attorney was selected for a trust account audit.
  • D.   Someone other than Attorney’s client had asserted an interest in funds Attorney is holding for client.

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 ________ 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 ______ 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.”

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.
  • 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.

Portia provided competent representation!

But wait, the evidence suggests that Portia threatened Shylock with criminal prosecution in order to gain an advantage in the civil matter.

Portia violated the rules!

Anyhow, what’s the well-known phrase that, per the contract, was Shylock’s remedy for Antonio’s failure to repay the loan?

Bonus: what’s the title of the fictional work?