Five for Friday #226

Welcome to the 226^th #fiveforfriday legal ethics quiz!

I’ve been on hiatus from crafting introductions related to the quiz number or date.  Today, the hiatus ends. Barely.

The Kentucky Derby is tomorrow.  Since nobody likes a quitter, I’m not going to let my horrible track record keep me from yet again using the pre-Derby quiz to share my picks.

I like an exacta box with the 8, 10, 14 and 15.

Alas, people like wafflers even less than quitters. So, I’ll take a stand:

• Hot Rod Charlie
• Essential Quality
• Rock Your World
• Midnight Bourbon.

I can hear you now: “mike, that’s it? How does this end the hiatus?

Here’s how.

I’m easing back into things.  Today, I spent about 22.6 seconds researching my Derby picks.

Onto the quiz!

ps: how can your Kentucky Derby picks NOT include a horse with “bourbon” in its name?!?!

pps: Elizabeth Kruska is not only a regular member of the #fiveforfriday Honor Roll, she’s also the current President of the Vermont Bar Association.  And I can make the following statement with no worry of violating any of the honesty or advertising rules: President Kruska and her husband, Wesley Lawrence, are the Vermont bar’s leading horse-racing aficionados. In 2018, Elizabeth was kind enough to answer a series of questions in which I attempted to tie horse racing, the practice of law, and legal ethics.  Her answers and insight are fascinating.  You can check them out here.

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 kennedy@vermont.gov
• I’ll post the answers & Honor Roll on Monday
• Please don’t use the “comment” feature to post your answers
• Please consider sharing the quiz with friends & colleagues
• Share on social media.  Hashtag it – #fiveforfriday

Question 1

Lawyer called me with an inquiry related to Matter 2, a matter in which Lawyer was considering whether to represent Spring.  Our discussion focused on whether Matter 1 was “the same as or substantially related” to Matter 1.

It’s most likely that Matter 1:

• A.  also involved Lawyer representing Spring.
• B.  involved another attorney in Lawyer’s firm representing Spring.
• C.  resulted in a disciplinary complaint being filed against Lawyer.
• D.  involved Winter, a former client of Lawyer’s whose interests are materially adverse to Spring’s in Matter 2.

Question 2

What is the main difference between how the rules treat hourly and contingent fees?

• A.  a contingent fee agreement must be in a writing that is signed by the client.  Meanwhile, the rule states that it is “preferable” that an hourly fee agreement be in writing.
• B.  an hourly fee agreement must be in a writing that is signed by the client.  Meanwhile, the rules states that it is “preferable” that a contingent fee agreement be confirmed in writing.
• C.  hourly fees are presumed reasonable, contingent fees are not.
• D.  Trick question.  Both fees must be reasonable. Other than that, the rules draw no distinction between them.

Question 3

At a CLE, I said:

“the specific definition is ‘the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these rules or other law.’”

Which more general topic(s) is it most likely that the CLE focused on?

• A.  The relationship between a lawyer and law firm when the lawyer is “of counsel.”
• B.  Conflicts & Confidences.
• C.  Issues associated with accessing electronically stored information while working remotely.
• D.  A firm’s response when a lawyer is sanctioned and put on disciplinary probation.

Question 4

Attorney called me with an inquiry.  I listened and responded, “your ethical obligation is to notify the sender that you received it.  Depending on the circumstances, the rules of civil procedure might impose additional duties.”

What did Attorney receive?

• A.  information that Attorney knows or should know was inadvertently sent.
• B   a last-minute change to previously arranged wiring instructions.
• C.  a subpoena to produce confidential information related to the representation of a current or former client.
• D.  a request to meet with a prospective client with whom Attorney knows there exists a conflict of interest.

Question 5

48 years ago today, Lawyer was fired from his job by Person.  Person fired Lawyer after learning that Lawyer had been secretly cooperating with an investigation of Person and Others.

Lawyer had been cooperating with the investigation as part of deal related to his own conduct, conduct that eventually resulted in a criminal conviction and disbarment.

In fact, Person was also an attorney, but was not actively practicing when he fired Lawyer.  Still, Person was eventually disbarred too.

The firing was part of a larger incident that is widely deemed to have resulted in legal ethics and professional responsibility becoming required courses in law school.

Name Lawyer, Person, and the job from which Lawyer was fired 48 years ago today.

Five for Friday #213

Welcome to #213!

This week’s intro is via video from the Garage Bar.  It’s 6 minutes that not only include using sports memorabilia to explain the principles of imputed disqualification, but also the resumption of my singing career as my self-imposed sanction for the ethics violation I committed in last Friday’s post. To skip the conflicts lesson and get to my performance, go to the 3:34 mark.

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 don’t use the “comment” feature to post your answers
• Please consider sharing the quiz with friends & colleagues
• Share on social media.  Hashtag it – #fiveforfriday

Question 1

There’s only one thing that the Rules of Professional Conduct require a lawyer to keep for a definite period following the termination of a representation.  What is it?

• A.   a client’s confidences: 6 years.
• B.   a copy of the client’s file: 7 years.
• C.   a copy of the advertisement that led the client to the lawyer: 2 years.
• D.  Records of any funds held in trust for the client: 6 years.

Question 2

Which word or phrase is associated with a different rule than the others?

• A.  knows or reasonably should know that the person misunderstands the lawyer’s role.
• B.  shall correct the misunderstanding.
• C.  without the consent of the person’s lawyer.
• D.  not give any advice, other than the advice to seek counsel.

Question 3

This is true: there is a rule that prohibits a lawyer from disbursing against a deposit to the trust account until the deposit has cleared and become “collected funds.”

True or false? In Vermont, there are no exceptions to the rule.

Question 4

Which is most accurate?  The Rules of Professional Conduct impose a duty to  _______:

• A.  Encrypt email.
• B.  Encrypt a client’s electronically stored information in transit.
• C.  Encrypt a client’s electronically stored information  at rest.
• D.  Act competently to safeguard client information, including by taking reasonable precautions to prevent against the inadvertent disclosure of or unauthorized access to client information.

Question 5

I botched it by not asking this last Friday.  Anyhow, on October 30, a famous actor turned 75.  For five seasons, the actor played one of my favorite ethically challenged lawyers: Arrested Development’s Barry Zuckerkorn.  Of course, Zuckerkorn is not to be confused with the acting coach that the same actor plays in Barry and for which he won the 2018 Emmy for Outstanding Supporting Actor.

Readers of an earlier vintage might know the actor better for his Emmy-winning performances on a 1970’s sitcom. Per his Wiki page, on that show, he played “a greaser who became the breakout character.”

Whose 75^th birthday did I miss last Friday?

Monday Morning Answers #212

Welcome to November.  It wasted no time announcing its presence.

Friday’s questions are here.  The answers follow today’s Honor Roll.  Many thanks to all who shared their thoughts in response to my Halloween Candy Power Rankings.

Honor Roll

• Karen Allen, Esq
• Matthew Anderson, Pratt Vreeland Kennelly & White
• Penny Benelli, Dakin & Benelli
• Alberto Bernabe, Professor, John Marshall Law School
• Geoffrey Bok, Esq.
• Heather Devine, Costello, Valente & Gentry
• Erin Gilmore, Ryan Smith & Carbine
• Benjamin Gould,Paul Frank & Collins
• Anthony Iarrapino, Wilschek & Iarrapino
• Glenn Jarrett, Jarrett & Luitjens
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Elizabeth Kruska, President, VBA Board of Managers
• Cassandra Larae-Perez, Special Counsel, Gravel and Shea
• Pam Loginsky, Washington Association of Prosecuting Attorneys
• Kevin Lumpkin, Sheehey Furlong & Behm
• Mike McClallen, McClallen & Associates
• Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
• Jeffrey Messina, Bergeron Paradis Fitzpatrick
• Hal Miller, First American
• Herb Ogden, Esq.
• Dan Richardson, Tarrant Gillies Richardson & Shems; Past-President, VBA Board of Managers
• Jay Spitzen, Esq.
• Jonathan Teller-Elsberg, Carter, Scott & McGee
• Honorable John Valente, Vermont Superior Judge
• Caryn Waxman, Barber & Waxman
• Thomas Wilkinson, Cozen O’Connor

Question 1

It is not uncommon for me to receive an inquiry in which a lawyer asks about the information that can be included in a particular type of motion.  For example: “Mike, I’m thinking of filing a motion __  _______________, but I don’t want to disclose any confidences.”

Typically, I reply with something like: “I think it’s best to cite to whichever paragraph of the rule applies. Then, if asked for more by the court, answer, but only by providing the information necessary to respond to the court’s specific question. The motion doesn’t give you license to start blabbing about the client.”

What type of motion is most often the subject of the inquiry outlined above?

• A.  To disqualify opposing counsel.
• B.  To have the client’s competency evaluated.
• C.  To withdraw.  The applicable rule is V.R.Pr.C. 1.16
• D.  To recuse the judge.

Question 2

The trust account rules require lawyers to reconcile trust accounts:

•   A.  Timely, with “timely” being no less than monthly.  V.R.Pr.C. 1.15A(4).
• B.  Every other month
• C.  As often as required by generally accepted accounting principles.
• D.  The rules are silent. But the Vermont Supreme Court has held that trust accounts must be reconciled no less than quarterly.

Question 3

Lawyer represented Client.  Once the representation ended, Client gave Lawyer a gift.  Which is most accurate?

• A.  Lawyer must not accept the gift
• B.  Lawyer may accept the gift, but only if Lawyer handled the matter pro bono
• C.  Lawyer may accept the gift, especially if it’s a simple gift such as a holiday present or token of the client’s appreciation.  See, V.R.Pr.C. 1.8, Comment [6].
• D.  Mike, objection.  The premise of this question is pure fantasy.

 Question 4

Which is in a different rule than the others?

• A.  Same or substantially related matter.
• B.  Materially adverse interests.
• C.  Informed consent, confirmed in writing.
• D.  Remonstrate with the client and, if necessary, take reasonable remedial measures.

A, B, & C appear in Rule 1.9(a)’s analysis of a former client client.  Answer D appears in Rule 3.3(a)(3) and states the duties a lawyer has upon learning that a client or a witness called the lawyer has offered evidence that is materially false.

 Question 5

At seminars and in blog posts, I often talk about the duty of competence insofar as it relates to the preservation and production of a client’s electronically stored information.

Earlier this week, a New York judge issued a ruling in Parlux v. Carter.  The judge concluded that the defendant, Shaun Carter, had improperly destroyed emails relevant to the case and, therefore, that if the case goes to trial, the jury will be instructed that it can draw an adverse inference from the fact that the emails are missing.

While sued under his legal name, Carter, a world-famous musician and mogul, is better known by his stage name.  I’ve previously mentioned him in this blog, noting that one of his most iconic songs has been described as “a hornbook on the 4^th Amendment.”  To wit, the second verse’s lessons on traffic stops, vehicle searches, racial profiling, and probable cause.

Indeed, in the civil case, the missing emails have quickly risen to the top of the list of Carter’s problems.

Who is Carter better known as?

Jay-Z.   CMU reported the story here.

Five for Friday #212

I hesitate to share my votes. Doing so seems to put relationships at risk. And you, my readers, are a relationship I’d rather not risk.  Alas, if I don’t stand for something, I’ll fall for anything.

Don’t shame me for my choices. I like what I like. You might like something else.  That’s fine. We can still get along. 

So, without further ado, my 2020 Halloween Candy Power Rankings:

Note: movie theater candies were not eligible for consideration.  Otherwise, this post would’ve consisted of two words: Sno Caps.  Toughest omissions: 100 Grand and Butterfinger

I feel like my rankings don’t need explanation. Good taste is obvious. But I suppose every voter feels that way.  So, I’ll explain my choices.  Unlike real life, I’m here to advocate for my preferences, not to yell at you about why not to vote for others.  In reverse order:

• 5.  Kit Kat. Is there anything better? Well, yes, the next four on this list. Still, I feel like Kit Kat is sneaky underrated. Especially given the fact that it played such a crucial role in an episode of The Office. The crunch of those layers? Perfection! Oh, and if you eat them without breaking off a piece of that Kit Kat bar? You should be disbarred from whatever job you have.  Tip: freeze before eating.
• 4.  Junior Mints. A stunningly refreshing combination of mint and chocolate. If you think these are only a movie candy, I’ll fight you. The tiny Halloween box is a perfect first date: it satisfies you, but leaves you wanting more.  Oh, and having pointed out Kit Kat’s relevance to The Office, I’d be remiss not to remind you of Junior Mints’ appearance in Seinfeld.
• 3.  Krackel. I feel like this will be controversial. I love Krackel. It’s a better version of Kit Kat.  Probably could be #1, but is it available in a regular size throughout the year?  In the fall, my mom buys those grab bags that include a variety of tiny Hershey’s, Mr. Good Bar, something else, and Krackel.  When she puts them out, I treat the Krackels like they’re the chocolate munchkins in a box of 25 mixed.  Literally, the best candy that I’ve never had but in its miniature Halloween version. 
• 2.  Reese’s Peanut Butter Cups. In Hannaford’s the other day, I saw a 6 pack! For those of you who grew up more recently than I, back in the days of less excess than now, only 2 peanut butter cups came per package. Oh, the humanity!! Peanut Butter Cups are the second-best food combination ever created.* You will be summarily disbarred if I learn that you aren’t freezing your peanut butter cups.
• 1.  *Peanut M&M’s. Have you ever been asked “if you could only have one food the rest of your life, what would it be?” I have. Recently. Such are the questions that arise in the Garage Bar. Last weekend, I answered “Peanut M&Ms.”   In Anna Karenina, published in 1878, Tolstoy wrote, “If you look for perfection, you’ll never be content.”  Leo, stop looking! It’s not your fault that Peanut M&M’s weren’t mass marketed until 1954! Collectively, have we garnered more contentment from, or witnessed anything more perfect than, Mars’ polyamorous marriage of a nut, a thin layer of chocolate, and a brightly colored and refreshingly crisp candy shell?

Nyet!

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 don’t use the “comment” feature to post your answers
• Please consider sharing the quiz with friends & colleagues
• Share on social media.  Hashtag it – #fiveforfriday

Question 1

 It is not uncommon for me to receive an inquiry in which a lawyer asks about the information that can be included in a particular type of motion.  For example: “Mike, I’m thinking of filing a motion __  _______________, but I don’t want to disclose any confidences.”

Typically, I reply with something like: “I think it’s best to cite to whichever paragraph of the rule applies. Then, if asked for more by the court, answer, but only by providing the information necessary to respond to the court’s specific question. The motion doesn’t give you license to start blabbing about the client.”

What type of motion is most often the subject of the inquiry outlined above?

• A.  To disqualify opposing counsel.
• B.  To have the client’s competency evaluated.
• C.  To withdraw.
• D.  To recuse the judge.

Question 2

The trust account rules require lawyers to reconcile trust accounts:

•  A.  Timely, with “timely” being no less than monthly
•  B.  Every other month
•  C.  As often as required by generally accepted accounting principles.
•  D.  The rules are silent. But the Vermont Supreme Court has held that trust accounts must be reconciled no less than quarterly.

Question 3

Lawyer represented Client.  Once the representation ended, Client gave Lawyer a gift.  Which is most accurate?

• A.  Lawyer must not accept the gift
• B.  Lawyer may accept the gift, but only if Lawyer handled the matter pro bono
• C.  Lawyer may accept the gift, especially if it’s a simple gift such as a holiday present or token of the client’s appreciation.
• D.  Mike, objection.  The premise of this question is pure fantasy.

Question 4

Which is in a different rule than the others?

•  A.  Same or substantially related matter.
•  B.  Materially adverse interests.
•  C.  Informed consent, confirmed in writing.
• D.  Remonstrate with the client and, if necessary, take reasonable remedial measures.

Question 5

 At seminars and in blog posts, I often talk about the duty of competence insofar as it relates to the preservation and production of a client’s electronically stored information.

Earlier this week, a New York judge issued a ruling in Parlux v. Carter.  The judge concluded that the defendant, Shaun Carter, had improperly destroyed emails relevant to the case and, therefore, that if the case goes to trial, the jury will be instructed that it can draw an adverse inference from the fact that the emails are missing.

While sued under his legal name, Carter, a world-famous musician and mogul, is better known by his stage name.  I’ve previously mentioned him in this blog, noting that one of his most iconic songs has been described as “a hornbook on the 4^th Amendment.”  To wit, the second verse’s lessons on traffic stops, vehicle searches, racial profiling, and probable cause.

Indeed, in the civil case, the missing emails have quickly risen to the top of the list of Carter’s problems.

Who is Carter better known as?

Monday Morning Answers #210

I hope everyone made the most of the long weekend.  Friday’s questions are here.  The answers follow today’s Honor Roll.

I picked wrong again.

Honor Roll

• Matthew Anderson, Pratt Vreeland Kennelly & White
• Evan Barquist, Montroll Backus & Oettinger
• Alberto Bernabe, Professor, John Marshall Law School
• Beth DeBernardi, Administrative Law Judge, VT Dept. of Labor
• Erin Gilmore, Ryan Smith & Carbine
• Robert Grundstein, Esq.
• Jeanne Kennedy,  JB Kennedy Associates, Blogger’s Mom
• John Leddy, McNeil Leddy & Sheahan
• Pam Loginsky, Washington Association of Prosecuting Attorneys
• Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
• Hal Miller, First American
• Jim Runcie, Ouimette & Runcie
• Jay Spitzen, Esq.
• Jonathan Teller-Elsberg, Hershenson. Carter, Scott & McGee
• Thomas Wilkinson, Jr., Cozen O’Connor
• Zachary York, Child Support Specialist II, Office of Child Support 

Answers

Question 1

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

• A.  Yes, but only in insurance defense matters.
• B.   Yes, but only if the client is indigent.
• C.   Yes, but the rule permitting it also discourages it.
• D.   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.  V.R.Pr.C. 1.8(f).

Question 2

Consider the following:

• must be in a writing that is signed by the client.
• cannot be used for representing a defendant in a criminal case.
• cannot be based on securing a divorce.
•  

Here, we’re talking about:

• A.   Contingent Fees.  V.R.Pr.C. 1.5(c).
• B.   Flat Fees
• C.   An agreement to limit the scope of a representation
• D.   All the Above

Question 3

A lawyer called me with an inquiry. I listened, then responded “the first question is whether the new matter is the same as or substantially related to the old matter.”

Given my response, the lawyer called to discuss the rule on:

• A.  file retention
• B.  fees/trust account management
• C.  communication with a represented person.
• D.  a potential conflict of interest.  V.R.Pr.C. 1.9(a).

Question 4

Here’s a sentence that is in the comment to one of the rules on candor.  Your task is to fill in the blank.

“_________________   partially true but misleading statements or omissions that are the equivalent of affirmative false statements.”

• A.    A lawyer does not violate this rule by making . . .
• B.    Misrepresentations can also occur by.  V.R.Pr.C. 4.1, Comment [1].
• C.    Negotiations necessarily include . . .
• D.    According to my dad, Lawyers excel at making . . .

Question 5

The things we do for our clients!!

Sydney Carton was a brilliant lawyer who struggled with alcohol & depression.  His most famous client was Darnay.

While not explicitly clear from the historical record, I’m pretty sure that Darnay filed a disciplinary complaint against Carton.   In it, he alleged that Carton failed to provide him with competent & diligent representation in a criminal trial that resulted in a death sentence for Darnay.

The complaint became moot when Carton, who bore an uncanny resemblance to his client, switched places with Darnay just before the execution.  Carton’s final words before the guillotine fell:

• “It is a far, far better thing that I do, than I have ever done; it is a far, far better rest that I go to than I have ever known.”

Name the book.

A TALE OF TWO CITIES.

Five for Friday #202

Welcome to Friday!

“202” is palindromic number. It reminds me that, in life, opposite extremes often share more similarities than differences.

There’s a saying: “Virtue in the middle.”  This morning, unable to recall its source, I resorted to my trusty google machine.  It appears that the saying derives from Greek philosophy.  Apparently I didn’t pay close enough attention in my Western Civ class at Boston College.*

*BC is not only where I started before transferring to UVM, it’s where I suffered my college football injury.

Leaving a discourse on Aristotelian theory for another day, here’s another saying:

“‘Virtue in the middle,’ said the Devil as he sat down between two lawyers.”

It makes me laugh. Also, I’m fairly certain it’ll make my father laugh even harder than the day he asked me “what do you call 300 lawyers at the bottom of Lake Champlain?”  And that’s the hardest I’ve ever seen him laugh.

Okay, I’m official rambling. So, here’s my point: when it comes to legal ethics and professional responsibility, we should NOT flatten the curve. By that I mean this:

In case you just got back from Jupiter, here’s an image that’s been a topic of recent discussion:

Actually, I lied.  That’s an ordinary Bell Curve.  So sue me.

Anyhow, my 22 years in the Professional Responsibility Program have taught me this: when it comes to legal ethics, the curve applies, but in a completely different way than it is almost always used.  With legal ethics and professional responsibility, the curve’s middle isn’t average, and one extreme is no better or worse than the other.

Rather, when it comes to legal ethics and professional responsibility, at one extreme, we find the bumblers who have no idea what they’re doing.  At the other, those who intentionally cross the line. More similar than different, they’re equally bad.  Fortunately, not many occupy the extremes, with the bulk of us making up the population that resides in the middle.

More importantly, and again referring to legal ethics and professional responsibility, my experience has been that lawyers aren’t static points on a graph. You are thoughtful, caring humans who consciously strive to live as close to the middle as possible. I love that about you. Because, in the middle, and unlike the Bell Curve, you are far more than “average.”  No, in the middle, the curve provides space to stand tall and proud.  Again, I stress, in my experience that’s where 99% of you not only try to be, but are.

Still, some of us inhabit the extremes.  A problem with living at the extremes is that there’s not much room to stand.  Instead, you have to slither around like a snake.  Perhaps garden variety & harmless, or maybe venomous and deadly.  Regardless, more similar than different, snakes that slither.

Don’t be a snake.  Stand tall and proud with the rest of us.

Virtue lies in the middle.

That’s what 202 reminds me of.

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 don’t use the “comment” feature to post your answers
• Please consider sharing the quiz with friends & colleagues
• Share on social media.  Hashtag it – #fiveforfriday

Question 1

A friend of mine dropped off some syrup last night. And I hadn’t done anything to deserve it!  But it made me think of this question:

True or false?  The rules specifically prohibit lawyers from bartering for legal services.

Question 2

Most of the Rules of Professional Conduct apply generally, regardless of practice area. However, there’s a one rule that specifically addresses the “special responsibilities” of  ________:

• A.  Bar Counsel.
• B.  Insurance Defense Lawyers
• C.  Probate Lawyers
• D.  Prosecutors

Question 3

Attorney represents Client.  Having good cause to do so, Attorney moves to withdraw from the representation.  The motion is denied, and the trial court orders Attorney to continue to represent Client.  By rule,  ______:

• A.  the trial court must certify an interlocutory appeal.
• B.  Attorney must request reconsideration and, if denied, immediately appeal.
• C.  Attorney shall continue to represent Client.
• D.  disobeying the trial court’s order is not an ethics violation.

Question 4

Sole Practitioner called me with an inquiry. I listened, then shared my thoughts.  I added “by the way, I have no idea why, but there’s actually a rule that says if you do, you have to cease the private practice of law in the geographic area in which you’ve practiced.”

If you do . . .what?

• A.   Get elected to the Legislature.
• B.   Plead guilty to a crime.
• C.   Get licensed in another profession.
• D.   Sell your law practice.

Question 5

Speaking of the Devil . . .

Jabez Stone was a New England farmer who fell upon hard times.  In exchange for 7 years of prosperity, Stone sold his soul to Mr. Scratch.  When Mr. Scratch sought to enforce the contract, Stone retained a lawyer.  A famous trial ensued.

Name the lawyer who represented Stone.

Five for Friday #184

Happy Friday!

I’m about to hit the road to speak at two CLEs: the VBA Bankruptcy Section’s Holiday CLE in Killington, followed this afternoon by the Defender General’s training in Montpelier. Last night, I had visions of rising early and using today’s introduction to weave for you a magical story tying this week’s number (184), to today’s date, and, eventually, to The Irishman.  

I said “visions.”  I did not say – or do anything to indicate – that I had managed to transform my visions to a draft, not to mention a final product.

But you know what that makes me?

A visionary.

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 don’t use the “comment” feature to post your answers
• Please consider sharing the quiz with friends & colleagues
• Share on social media.  Hashtag it – #fiveforfriday

Question 1

If Lawyer’s continued representation of a client will result in a violation of the Rules of Professional Conduct, Lawyer _____________.

• A.    may withdraw.
• B.    shall withdraw.
• C.    oddly, this situation is not mentioned in the Vermont Rules of Professional Conduct.

Question 2

Lawyer called me with an inquiry involving Client and Other.  I listened.  Then, I said:

“it’s ok as long as:

1. Client gives informed consent;
2. Other doesn’t interfere with your professional judgment or your relationship with Client; and,
3. you don’t share any information about the representation with Other absent Client’s consent.”

What is Other’s involvement with this situation?

Question 3

Later today at the Bankruptcy CLE, I’m going to mention “the 6 Cs of Legal Ethics.”  Competence, Communication, Confidentiality, Conflicts, Candor, and Civility.

There’s actually a 7^th “C”, but the word does not appear anywhere in the rules.  Rather, it’s the word we use to refer to a violation of the duty to hold property of clients and third persons separate from the lawyer’s own property.

What’s this 7th “C”?

Question 4

Lawyer represents Kennedy.   This morning, Kennedy gave Lawyer a bank check for $6,000 to pay for various expenses related to the representation, including legal fees owed to Lawyer.  Lawyer did not have time to make it to the bank today but intends to deposit Kennedy’s check on Monday.

Honestly, Kennedy is a pain.  He hasn’t paid in a long time and has a hefty outstanding bill.

Lawyer’s trust account holds funds that belong to clients other than Kennedy. This afternoon, Lawyer wants (finally) to pay herself for legal services provided to Kennedy by transferring funds from the trust account to her operating account.  Then, on Monday, Lawyer intends to replace those funds by depositing Kennedy’s bank check into trust.

Which is most accurate?

• A.   Good plan, but only because it’s a bank check, not a personal check.
• B.   Good plan, if Lawyer charges Kennedy a reasonable fee.
• C.   Bad plan, because the bank check is for more than $5,000.
• D.   Bad plan, because the disbursement would take place before Lawyer deposits Kennedy’s bank check into her trust account.

Question 5

Today is the 154th anniversary of the ratification of the 13th Amendment to the United States Constitution, the amendment that abolished slavery.

One of the members of Congress who was instrumental in drafting and passing the 13th Amendment was a “radical republican” who was born & raised in Vermont.  After leaving Vermont, he practiced law in Pennsylvania.  As a trial lawyer, legend has it that he responded to a judge’s warning that he was “manifesting contempt” by saying “Sir, I’m doing my best to conceal it.”

In 2012, Tommy Lee Jones played him in a movie about Abraham Lincoln and won the Academy Award for Best Supporting Actor .

Name the lawyer who was born & raised in Vermont and who played a critical role in drafting, passing, and ratifying the 13th Amendment.

Five for Friday #175: Superstitions & Expiration Dates

Happy Friday!

On the superstition spectrum, I’m much closer to Steve Wonder

than I am to Michael Scott.

That being said, Friday the 13th doesn’t bother me.  No, when it comes to superstitions, most of mine relate to sports or food.  In fact, I’m using today’s intro to ask my readers to weigh in on a particular of my food superstitions, one that is not shared by two of my most loyal readers.  More on that in a moment.

First, my food-related superstitions include:

• it’s bad luck to set a microwave for a time that ends in 0.  (e.g.: 1: 59 is far safer than 2:00.)
• it’s bad luck to pour the cream or milk after you’ve poured the coffee. put the cream or milk in first, then the coffee. Always.
• in a restaurant, it’s bad luck to disclose your order to someone you’re eating with before you announce the order to the server;
• in a restaurant, it’s bad luck to order the same thing as someone eating with you.
• thus, it’s obvious that, in a restaurant, it’s bad luck not to order last.

(Don’t worry, over dinner, my wit, charm, and conversational skills will cleanse your palate of how insufferable I was prior to ordering.)

Fact:  I live my life by the superstitions listed above.  However, I write today for your input on the food-related superstition that is most critical to my belief system: expiration dates.

I treat consuming food after the expiration date like Taylor Swift treats getting back together: never ever.   Literally.  If the expiration date is the 15th, I might not even consume it on the 13^th.  There is zero chance that I will use it on the 16th.  To me, this isn’t even a superstition.  It’s science.

Now, as I mentioned,  at least two of my most loyal readers disagree with me on this issue.  I’m not sure that I should I identify them.  Thus, to protect their anonymity:

• each has a first name that begins with J;
• one has known me for every single second of my life; and,
• the other works for the Vermont Bar Association.

Their cavalier attitudes towards expiration dates leaves me worried for their health.  Seriously.   I’m not talking about using something a day or two after the deadline.  I’m talking weeks!  That’s not wellness!

So, here’s what we’re going to do.   I’ve set up a poll.  It’s here.  Please weigh in on this important issue. You don’t have to take the legal ethics quiz to do so. .

Onto the quiz!

Rules

• None.  Open book, open search engine, text/phone/email-a-friend.
• Exception – but one that is loosely enforced – #5 (“loosely” = “aspirational”)
• 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 don’t use the “comment” feature to post your answers
• Please consider sharing the quiz with friends & colleagues
• Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

Which is most accurate?  By rule, a lawyer shall ___________:

• A.  reasonably consult with the client about the means by which the client’s objectives are to be accomplished.
• B.  abide by the client’s direction as to the means by which the client’s objectives are to be accomplished.
• C.  B, unless to do so would violate the Rules of Professional Conduct.
• D.  None of the above.  The rules require a lawyer to abide by the client’s objectives but are silent as to the means by which those objectives are accomplished.

Question 2

By rule, when representing a client, a lawyer shall not communicate with a person who is represented by another lawyer absent the consent of the other lawyer.

True or False: the rule only applies if the represented person’s interests are adverse to the interests of the lawyer’s client.

Question 3

Lawyer called me with an inquiry.  I listened then said “there are 3 exceptions to the rule.  The first is if the testimony relates to an uncontested issue.  The second is if the testimony relates to the nature and value of legal services rendered in the case.”

Given my response, the testimony of who?

• A.   an expert witness
• B.   Lawyer’s former client, and former client is adverse to Lawyer’s current client
• C.   a lawyer
• D.  Lawyer’s client, and Lawyer’s client suffers from a diminished capacity.

Question 4

By rule, Disciplinary Counsel and the Supreme Court are authorized to conduct & order, respectively, compliance reviews & audits of a lawyer or law firm’s:

• A.  financial records
• B.  financial records, including trust accounts
• C.  financial records, including trust & fiduciary accounts
• D.  C, but only upon receipt of information sufficient to establish that there is probable cause for the compliance review or audit.

Question 5

Privileges, confidences, conflicts.

In real-life, Paul Giamatti’s father, Bart, served as Commissioner of Major League Baseball.  There, Bart effectively disbarred Pete Rose by banning him from the sport.

On television, Paul Giamatti plays Chuck Rhoades, United States Attorney for the Southern District of New York.  Initially, the show focuses on Rhoades’ fixation with building a criminal case against Bobby Axelrod, an incredibly wealthy hedge fund trader who owes much of his fortune to gains made as a result of the 9/11 terrorist attacks.  A complicating factor?  Rhoades’ wife, Wendy, is a psychiatrist who works as a “performance coach” at Axe Capital, the hedge fund owned by Axelrod.

Central to the show’s plot are Wendy’s relationships with Rhoades and Axelrod, and the issues related to privileges, confidences, and conflicts that arise as a result.

Name the show.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Five for Friday #169

What a beautiful Friday!

It’s days like this that I live for.  And days like this that make me shudder to think of November, December, January, February, March and each of the past two Aprils.  But thinking is overrated.  So, instead, I’m going to enjoy today for what it is.  And given a fantastic confluence of events, today is shaping up to be a good day indeed.

Last summer, my brother and I took full advantage of the fact that the Men’s World Cup was held in Russia.  The time difference made for ideal start times in the eastern U.S.

This summer, the gift continues to give, with the Women’s World Cup taking place in France. An added bonus?  Unlike the men, the US Women not only qualfied for the tournament, they have a chance to win!  Today’s quarterfinal against France is on our agenda.

Also, our cousins Sean and Richie are in town. Their mom is my dad’s sister.  Sean is a fighter pilot based in California.  Richie lives in Plattsburgh.  As is common in Irish families like ours, I’m not exactly sure what Richie does. Which makes us even, because I’m pretty sure he thinks I’m a teacher.  Aunt Kate would be so proud of the interest her grandnephews take in each other’s lives!

Anyhow, another of our traits is a conviction in the superstitious powers of sayings. Thus, fully aware that familiarity breeds contempt, Sean, Richie and I limit our in-person interactions to the Friday afternoon in late June that falls during Sean’s annual trek home.  Today, we’ll meet at the same bar we always do and pretend to catch up.  Then, we’ll tell the same stories we always re-tell, only this year we’ll laugh even harder than  in previous years, as if it’s the first time any of us has heard the story.

In a sense, each telling will be “new.”  You see, it’s not uncommon for our old stories to acquire new details with each passing year.  Details that the others know full well never happened, but that we leave unchallenged given how much better their inclusion makes the story.  We’ve long lost track of the line that demarcates our actual childhood activities from the heroic & glamourous adventures our adult minds are certain we lived.

But you know what?  That’s ok.

It’s only a few hours a year, but I love seeing my cousins.  Not just Sean and Richie, but all my cousins on both sides of the family.

There’s an old Irish blessing:

To cousins.  May even one of yours be as good as each of mine.

Onto the quiz!

Rules

• None.  Open book, open search engine, text/phone/email-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 don’t use the “comment” feature to post your answers
• Please consider sharing the quiz with friends & colleagues
• Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

The rule prohibits communicating with a represented __________:

• A.   Party
• B.   Person

Question 2

True or false?

A lawyer may not accept representation in a matter that involves an area of law in which the lawyer does not possess the requisite level of competence to provide competent representation to the client.

Question 3

The rules rarely reference specific practice areas.   However, there’s one rule that specifically references both criminal cases & divorces.  It’s the rule on:

• A.   Contingent fees
• B.   Flat fees
• C.   Conflicts with former clients
• D.   Prospective clients

Question 4

Lawyer represents Client in an appeal.   Opposing Counsel filed a brief.  The brief fails to cite to a case in the controlling jurisdiction that Lawyer knows to be directly adverse to Client’s position.  By rule, Lawyer’s reply brief:

• A.   must not disclose the case
• B.   may disclose the case
• C.   may disclose the case if Client consents
• D.   must disclose the case

Question 5

The Supreme Court released several newsorthy decisions this week.

48 years ago today, the Court issued an opinion that garnered headlines nationwide.  The opinion overturned the conviction of a famous athlete. The athlete had refused to report for induction to the military after his application for conscientious objector status had been denied.

A unanimous Court (8-0, with Justice Marshall recusing himself) concluded that the athlete’s beliefs were “surely no less religiously based” than those that had been approved in granting other applications for conscientious objector status.

Name the athlete.

Five for Friday #151

Welcome to #151!

Bacardi isn’t today’s topic.  I can’t stand rum.

Today’s topic is my brother.

My brother is Patrick Francis Kennedy.  Some of you may know him as “The First Brother.” That’s how I list him when he earns a spot on the #fiveforfriday Honor Roll.  No, he’s not a lawyer.  He’s simply incredibly smart and can do legal research.  When he feels like it, he submits a perfect 5 for 5.   Give him a few days and he’d argue your motion to dismiss.

Then he’d argue opposing counsel’s position and leave the judge with a difficult decision.

I’m not sure how best to describe Patrick.  He is a lot of things.

Patrick makes his living as some sort of coder.  Or maybe he’s a programmer or a network engineer.  Honestly, his professional world is so Greek to me that I’m not exactly sure what he does.  But he’s damn good at it.

Patrick used to be in the Army.  He drove tanks.  Then, he did something, I can’t remember where or what, that exposed his tech competence to a superior officer.  That was the end of driving tanks. They whisked him off to West Point to run systems and such.  Now, he works for MyWebGrocer.

Patrick is also a top-notch chef.  He’s won multiple chili contests, an accomplishment that actually works to mask how adept he is at cooking anything & everything.  Not only does he know the precise temperature at which the various meats are best served, he’s knows how to order the right wine for each.  And how to make the right cheese for each wine.  Don’t like wine?  He brews beer.

My brother can fish & hunt.  He can explain how a piano works, how to attack a zone defense, and how the Union Army prevailed at Gettysburg.  He is conversant in Spanish and Italian.  He’s traveled extensively in Europe, been stationed on the DMZ, and coached a middle school basketball team to a tournament championship.

While wearing a tuxedo.

He can capably discuss Cornwallis at Yorktown, the aerodynamics at Daytona, and the paradoxes of time travel.  He could do your kid’s calculus homework then show her little sister how to build a leprechaun trap.  Afterwards, he’d let you choose whether to have him teach you how to make candles, brisket, or reservations for a Papal mass.

Patrick has constructed compelling arguments that Ignatius J. Reilly is literature’s greatest character, Rock of Ages is Broadway’s greatest musical, and Rick Burleson is Boston’s greatest shortstop.  He was the only Vermonter among the 25 finalists for the President of Red Sox Nation.

He doesn’t cheat at board games or throw tantrums when he loses.  (Hello bar counsel!) He’d crush you in Trivial Pursuit or Jeopardy, but then lie to you that he was lucky to do so.

I could go on & on about my brother.  Nothing I’ve listed should be construed to indicate that something I omitted is not in his wheelhouse.  Further, if my description of him seems random, well, it is.  Because that’s him: the rare person who knows so much about so much that it makes those of us who aren’t so smart (or interesting) wonder “how does he know so much about so many random things?”

But the things that he knows and can do are not why he’s important to me.  Without diving into detail, I’ll leave you with this.

Patrick is my younger brother.  By 18 months.  For his entire life, he’s had my back, unconditionally.  24/7/365. If you have a brother, you know what that means.

I wish I was more like him.  As a person, and as a brother.

My brother is a remarkable person with a fascinating variety of talents, interests, and areas of knowledge.  Everything I’ve shared about him is true.  Yet, there’s no more accurate way to describe him than as the best brother in the world.

Oh, one other thing, Patrick Francis Kennedy was born on February 15.

Happy birthday bro!

Onto the quiz!

Rules

• None.  Open book, open search engine, text/phone/email-a-friend.
• Exception – but one that is loosely enforced – #5 isn’t open book.  (“loosely enforced” = “aspirational”)
• 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 don’t use the “comment” feature to post your answers
• Please consider sharing the quiz with friends & colleagues
• Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

Which doesn’t belong with the others?

• A.   Keep the client reasonably informed about the status of a matter.
• B.   Promptly comply with reasonable requests for information.
• C.   As far as reasonably possible, maintain a normal client-attorney relationship with the client.
• D.   Explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation,

Question 2

Yesterday at a CLE, my answer to a question included the following words & phrases:

• same as or substantially related to;
• materially adverse
• informed consent, confirmed in writing

You should assume that I accurately quoted the applicable rule.  Given that assumption, the question related to the rule on:

• A.   Concurrent conflicts of interest.
• B.   Conflicts of interest & former clients.
• C.    Commingling
• D.   Prospective clients.

Question 3

“A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.”

• A.   True.  That’s a rule.
• B.   True.  That’s in one of the comments to the rule on diligence.
• C.   True.   That’s in one of the comments to the rule on fees.
• D.   It’d be nice, but it doesn’t say that anywhere in the rules or their comments.

Question 4

The phrase “without fee or expectation of fee” is in the rule on:

• A.   Withdrawing from a representation.
• B.    Reasonable fees.
• C.    Referral fees.
• D.   Pro Bono.

Question 5

Yesterday reminded me of this question.

Lawrence Mattingly practiced law in Illinois.  Once, he arranged a meeting between a client and federal agents/prosecutors who were trying to build a tax evasion case against the client.  During the meeting, the client claimed “I’ve never had much of an income.”

Later, Attorney Mattingly provided Treasury agents with a letter in which he conceded that his client had, in fact, earned a substantial income over the previous 4 years. The “Mattingly Letter” was admitted at trial and used as evidence against the client.  The client was convicted and sent to prison.

Who was the client?

.