Five for Friday #270

Welcome to Friday and the 270h legal ethics quiz.

If you’re a regular reader, you know how I feel about winter.  Then, upon noticing that the welcoming sentence didn’t end with its usual exclamation point, you likely guessed that this week’s introduction would be about the wind chill.

Good guess!  But wrong. 

If this was the 273rd quiz, then yes, today’s post would reference the miserable temperature and the fact that -273 degrees is absolute zero. However, this is the 270th quiz, which means I’m going to discuss artificial intelligence.

My dear readers, the end might be nigh.

AI and its impact on the legal profession burst into the conversation earlier this month with a tweet from DoNotPay founder Joshua Browder:

Well, as they say about mice, men, and plans, here’s what Browder Tweeted last week:
Some of the headlines were catchy.

As the DoNotPay story was unfolding, multiple outlets, including Reuters and the ABA Journal, reported that Open AI’s ChatGPT had earned passing scores in Torts and Evidence on the multiple choice segment of the bar exam.  Also, as reported by CNN, ChatGPT passed four courses at the University of Minnesota Law School.

I used the DoNotPay and ChatGPT stories as questions in Montreal during the Thaw Bowl. Going through the answers, I remarked – not jokingly – that my job might be the first to go once the robots start to replace lawyers.  People seemed to disagree, suggesting that there’s nuance in ethics inquiries that AI can’t replicate. 

I’m not so sure. So, I ran a test this morning.

I asked ChatGPT three questions that are common ethics inquiries.  Each answer came within 5 seconds.  You be the judge.

Question 1

MK:       In legal ethics, is it a conflict of interest to represent a person in a divorce after representing the couple during the marriage?

ChatGPT:  In legal ethics, representing a person in a divorce after representing the couple during the marriage may be considered a conflict of interest. Representing a client in a divorce case after representing both parties during their marriage may create a situation where the lawyer has confidential information obtained during the previous representation that could potentially be harmful to one of the parties in the divorce case.

The American Bar Association Model Rules of Professional Conduct, which provides ethical guidelines for lawyers, state that a lawyer shall not represent a client if the representation will be directly adverse to another client, unless the client consents after consultation.

Whether representing a person in a divorce after representing the couple during the marriage constitutes a conflict of interest will depend on the specific circumstances of the case and the ethical rules that apply in the jurisdiction in which the lawyer is practicing. It’s important for lawyers to consider their ethical obligations and to seek guidance from their state bar association or ethics committee if they have any questions or concerns.

Not bad.

Question 2:

MK: What are lawyer’s duties upon learning that a client may have presented false evidence to a court?

ChatGPT: A lawyer’s duty when they learn that their client may have presented false evidence to a court is to take steps to rectify the situation. This may include, but is not limited to, withdrawing from the case, informing the court of the false evidence, or seeking to have the evidence corrected or stricken from the record.

However, the specific steps that a lawyer must take will depend on the jurisdiction in which they are practicing and the ethical rules that apply to their profession. It’s important to note that in some cases, a lawyer may have an obligation to continue representing the client if they believe that doing so would not result in harm to the administration of justice. In these circumstances, the lawyer may have a duty to provide advice to the client to correct the situation and to comply with the ethical rules that govern the legal profession.

 Again, not bad.

Question 3

MK:  In Vermont, how much of a lawyer’s own money can be in a trust account?

ChatGPT In Vermont, there is no specific rule regarding the amount of a lawyer’s own money that can be placed in a trust account. However, trust accounts are intended for holding clients’ funds and any personal funds deposited in the account must be kept separate from client funds and properly accounted for.

Lawyers must comply with the Vermont Rules of Professional Conduct and any applicable laws and regulations governing trust accounts. Vermont Rule 1.15 provides that a lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds belonging to the lawyer may be deposited in a client trust account only as permitted by Vermont Rule 1.15(e), which states that a lawyer may deposit the lawyer’s own funds in a client trust account only as permitted by law and only in an amount reasonably sufficient to pay service charges.

It’s important for lawyers to familiarize themselves with the specific rules and regulations that apply to trust accounts in Vermont and to seek guidance from the Vermont Bar Association or a professional liability insurance provider if they have any questions or concerns.

This one is interesting. The first sentence is wrong. In fact, we have a specific rule, it’s V.R.Pr.C. 1.15(b). However, in the second paragraph, ChatGPT got to the correct answer (although incorrectly citing to Rule 1.15(e)).

Again, the answers aren’t bad.  And remember – AI learns as it goes.

What’s all of this this got to do with 270?

Apparently, we aren’t too far from AI passing the bar exam.  And when it does, I could be the first to go.

What’s the passing on score on the Vermont Bar Exam?

270.

Onto the quiz!

 Rules

  • None.  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply.
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

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

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

Question 2

Competent representation includes knowing the other rules.

There’s a rule that prohibits charging a contingent fee to secure a ______ and to represent to represent a _______________.

Question 3

Absent a written agreement between Lawyer & Client saying it will be treated otherwise, a flat fee paid in advance of any services being performed by Lawyer ____________:

  • A. must be deposited into trust.
  • B.  must not be deposited into trust.
  • C.  violates the rules.
  • D.  None of the above.

Question 4

If a lawyer calls me with an inquiry related to client confidences, which situation is most likely to cause me to give a different response than to the others?

  • A.  Client files disciplinary complaint against lawyer.
  • B.  Client leaves negative online review for lawyer.
  • C.  Client sues lawyer for malpractice.
  • D.  Client files petition for post-conviction relief that makes allegations about the lawyer’s representation of client.

Question 5

One of Netflix’s most-watched shows of 2022 starred Julia Garner as the so-called “SoHo Grifter . . . who stole the hearts of New York’s social scene — and stole their money as well.” Garner’s performance earned Emmy and Golden Globe nominations, and required a much different accent than Garner used as Ruth in Ozark.

In real life, the “grifter’s” lawyer was disbarred last year. Ironically, for stealing money from another client.

In the fall, the real-life “SoHo Grifter” sued the lawyer, alleging that the lawyer had failed to turn over the complete file after being fired last April.  The lawyer told the press that she had delivered the entire file, that the lawsuit is a vendetta, and that the former client is an “ungrateful b*&*%.”

Name the Netflix show.

Five for Friday #267

Welcome to Friday and the 267th legal ethics quiz!

Sometimes you’re the first person to the office because you’re the first person to the office. 

Other times you’re the first person to the office because you’re the only one who didn’t realize today is a state and federal holiday. 

Somewhere my mother nods with a knowing grimace, confounded yet again by my persistent inability to pay attention to so many things.

On the bright side, having realized that it’s Veterans Day, I’m able to discard the intro I’d originally planned, conscripting it to the heap of intros that seem so clever late Thursday night, only to send me into a panic on Friday morning when I wake frantically hoping that I didn’t click “publish.” Instead, I have good news to share in honor of the holiday.

Vermont Law School’s South Royalton Legal Clinic houses the Veterans Legal Assistance Project of Vermont.  From the website:

  • “VLAP was established in 2014 to provide pro bono legal assistance to Vermont’s military veteran population. The project represents veterans with state civil law issues in Windsor and Orange counties, as well as on a statewide basis in matters concerning veterans law-specific issues, such as appeals from the denial of VA benefits and discharge upgrades. VLAP also assists veterans with debtor issues such as bankruptcy relief, foreclosure defense, and consumer protection. Through ongoing outreach to community partners, VLAP continues to develop awareness of veterans’ needs and advocate for adequate services.”

For now, VLAP is only for student clinicians who work under the supervision of Vermont lawyers Don Hayes and Amanda Murphy.  Next year, however, things will change.

Thomas M. French is a Vermont lawyer.  In 2020, Tom and Samantha Lednicky received the Vermont Bar Association’s Pro Bono Service Award. I blogged about their pro bono work here.  The VBA press release included this about Tom:

  •  is a pro bono emeritus attorney in Brattleboro who was nominated by attorneys James Valente and Thomas Costello for his work with military veterans.  Following military service himself as a JAG attorney, French worked as a general practitioner in Windham County for 50 years, often serving clients pro bono.  After retirement, Attorney French set up a pro bono program at his local American Legion post where he can be found every Tuesday and Thursday helping veterans obtain benefits they have been wrongfully denied.  In 4 years, Attorney French has won 14 out of the 15 actions he brought for his veteran clients, securing nearly $500,000 in benefits for them.”

Tom’ son, also named Tom, is a VLS alum. Tom the younger recently made a generous gift to VLAP to fund a program named after his father: the Thomas M. French Advocacy Fund.  VLAP will use the fund to train the next wave of lawyers willing to assist Vermont’s veterans on a pro bono basis.  A half-day CLE program is scheduled for April 21, 2023.  Attendees will receive the credit required for accreditation to practice before the Veterans Administration. The training is free for any attorney who agrees to take on some pro bono work for the veteran community.  Thereafter, the fund will enable VLAP to provide support and resources to participating attorneys.

For more info, contact Don or Amanda.

Thank you Tom & Tom!

Onto the quiz!

Rules

  • None.  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

Consider the following:

  • Thoroughness, preparation, legal knowledge, and skill.
  • Well-being.
  • Staying abreast of developments in the law, including the risks and benefits of technology.

Each is an aspect of the duty of _______________.

Question 2

Here’s a comment to one of the rules:

  • “A lawyer entitled to a fee is permitted by paragraph (c)(3) to prove the services rendered in an action to collect it.  This aspect of the rule expresses the principle that the beneficiary of a fiduciary relationship may not exploit it to the detriment of the fiduciary.”

Which of the 7 Cs of Legal Ethics is the subject of the rule that this comment accompanies?

Question 3

Fill in the blank.

There’s a rule that prohibits ex parte communication with two groups of people. One group includes judges and any “other person acting in a judicial or quasi-judicial capacity in a pending or impending adversary proceeding.”   The other group includes current and prospective _____________.

Question 4

I rarely receive inquiries about this rule, but the topic it addresses is one that many lawyers find frustrating in opposing counsel.  A comment to the rule suggests that a violation likely turns on “whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay.”

What’s the name of the rule?

  • A.  Expediting Litigation.
  • B.  Conflicts of Interest: Current Clients: Specific Rules.
  • C.  Declining or Terminating Representation.
  • D.  Meritorious Claims and Contentions.

Question 5

Today’s question is about a movie that is 30 years old.  However, the lead role was played by an actor who is going to finish as Hollywood’s top paid star of 2022, reportedly earning more than $100 million for a movie that was released this spring.

The 1992 movie included several memorable courtroom scenes.  In one, a member of the 3-lawyer defense team objected to testimony and asked that it be stricken from the record.  The following exchange ensued:

  • Judge:  The objection is overruled counsel.
  • Lawyer:  Sir, the defense strenuously objects and requests a meeting in chambers so that his honor might have an opportunity to hear discussion before ruling on the objection.
  • Judge: The objection is overruled counsel.

A few moments later, the court went into recess.  Annoyed with the lawyer, co-counsel asked:

  • “I strenuously object? Is that how it works?” 

Then, to drive home the point, co-counsel pretended to be both lawyer and judge in this scenario:

  • Lawyer:  Objection.
  • Judge:  Overruled.
  • Lawyer:  No, no, no, no I strenuously object.
  • Judge: Oh, well if you strenuously object, let me take a moment to reconsider.

Later, in the movie’s famous climactic scene, the leading character – and leader of the defense team — asked a key witness “did you order the ____   ____?” The judge told the witness that the witness did not have to answer. The witness answered anyway. 

What had the witness ordered?

If they were real-life lawyers, the defense team would probably be doing something today to observe Veterans Day.

Bonus: name the 2022 movie that starred the 1992’s movie’s lead, albeit not as a lawyer. It’s another movie whose characters likely observe Veterans Day.

Monday Morning Honors #266

Happy sunny Monday!

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

Honor Roll

Answers

Question 1

This week, the ABA Standing Committee on Ethics and Professional Responsibility issued an advisory opinion in which it concluded that a lawyer who includes a client on an electronic communication to opposing counsel has:

  • A.  not impliedly consented to a “reply all.”
  • B.  impliedly consented to “reply all.”  See, this blog post.

Question 2

Which does the Vermont rule treat different from the others. 

  • A.  a certified check issued by a federally insured bank.
  • B.  a check drawn on an IOLTA account of a Vermont licensed attorney that exceeds $25,000.
  • C.  a check issued by an insurance company that is licensed to do business in Vermont that exceeds $250,000.
  • D.  a personal check that exceeds $1,000.

V.R.Pr.C. 1.15(f) prohibits a lawyer from disbursing from trust without “collected funds.”  The rule defines “collected funds” as “funds that a lawyer reasonably believes have been deposited, finally settled, and credited to the lawyer’s trust account.”

Paragraph (g) lists several instruments that a lawyer may presume constitute “collected funds” upon deposit.  Answers A, B, and C are among those listed. 

“D” is the correct answer because Rule 1.15(g)(5) only provides a safe harbor “when the deposit is a person check or checks in an aggregate amount that does not exceed $1,000 per transaction.”

Question 3

Lawyer received a letter from a former client who is not represented by counsel. In the letter, Former Client alleges that Lawyer committed malpractice.  Later, Lawyer agreed to pay, and Former Client agrees to accept, $X to resolve the claim.  By rule, before resolving the dispute, Lawyer must _______:

  • A.  Notify Disciplinary Counsel.
  • B.  Confirm the agreement in a writing that signed by the client.
  • C.  A & B.
  • D.  Advise Former Client in writing of the desirability of seeking independent legal counsel, and give Former Client a reasonable opportunity to do so.  V.R.Pr.C. 1.8(h)(2).

Question 4

When representing a client, can a lawyer ask a person other than the client to refrain from voluntarily giving relevant information to another party?

  • A.  no.
  • B.  yes, if the person is a relative of the client, and the lawyer reasonably believes that the person’s interests will not be adversely affected by giving such information.
  • C.  yes, if the person is an employee or other agent of the client, and the lawyer reasonably believes that the person’s interests will not be adversely affected by giving such information.
  • D.  B and CV.R.Pr.C. 3.4(f).

Question 5

In July, the State Bar of California disbarred Tom Girardi.  Earlier this week, the State Bar released a letter in which it revealed that, over the past 40 years, it had opened 205 investigations into Girardi and that “approximately 120 involved allegations related to trust account violations.” According to a news report:

  • “The State Bar noted that the handling of Tom’s disbarment ‘brought to light serious failures in the State Bar’s attorney discipline system’ which ‘have contributed to a lack of confidence in the State Bar’s ability to carry out our core responsibility of protecting the public.’

‘There is no excuse being offered here,’ the letter continued. ‘Girardi caused irreparable harm to hundreds of his clients, and the State Bar could have done more to protect the public.’

The agency also vowed to ‘never allow something like this to happen again.’”

In 1990s, Girardi helped a law clerk and residents of a California town who had complained about contaminated drinking water settle a case in which Pacific Gas & Electric agreed to pay $333 million.  

Name the movie that the case inspired:  ERIN BROKAVICH

Bonus: in 2000, Girardi, then 60, married his third wife, then 28. Name the tv show in which both she starred, and he made several appearances.  REAL HOUSEWIVES OF BEVERLY HILL.

Monday Morning Honors #265

Happy Halloween!

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

How about one last look at The First Brother pulling off history’s greatest performance as spinach (with kudos to my mom for the concept):

And, special kudos to Cary Dube.  Cary and her mom, Priscilla, are practicing members of the Vermont bar.  Cary was the only brave soul to share a pic from a Halloween past!  Here are the Dubes:

Honor Roll

  • Karen Allen, Karen Allen Law
  • Matthew Anderson, Pratt Vreelend Kennelly White
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, UIC School of Law
  • Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labor
  • Heather Devine, Tarrant Gillies Shems
  • Cary Dube, Bergeron Fitzpatrick & Paradis
  • Benjamin Gould, Paul Frank + Collins
  • Robert Grundstein
  • Glenn Jarrett, Jarrett/Hoyt
  • Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
  • Jeanne Kennedy, Mother (of the) Blogger, JB Kennedy Associates
  • John T. Leddy, McNeil, Leddy, Sheehan
  • Pam Loginsky, Deputy Prosecuting Attorney, Pierce County, Tacoma, WA
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeffrey Messina, Messina Law
  • Hal Miller, Hawaii Agency Underwriting Counsel, First American Title Insurance
  • Herb Ogden
  • James Remsen, Master Planner, Parker & Hannafin
  • Keith Roberts, Darby Kolter & Roberts
  • Robyn Sweet, Risk Management Specialist, Rutland Regional Medical Center
  • Jason Warfield, J.D.

Answers

Question 1

This week is National Celebrate Pro Bono Week.  Citing one of the 7Cs of Legal Ethics, lawyers often express reluctance to do pro bono work. There’s no need to fear! Indeed, here’s one of the comments to the rule that sets out the duty that lawyers worry that they might violate if they take a pro bono case in a practice area with which they’re not too familiar.  Which C?

  • “A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar.  Some important legal skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study.”

COMPETENCE.  V.R.P.C. 1.1, Cmt. [2].  The VBA offers LOADS of practice area training that is aimed at lawyers looking to do pro bono work.  Much of the training is available via archived video.  For more information, contact Kim Velk or Mary Ashcroft.

Question 2

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.

Options A, B, C are part of V.R.Pr.C. 1.9(a)’s standard for former client conflicts.  D, the correct answer, is what V.R.Pr.C. requires of a lawyer when the lawyer comes to know the falsity of material evidence offered by the lawyer, the lawyer’s client, or a witness called by the lawyer.

Question 3

There’s a rule that includes an exception for when a person is seeking a second opinion.  The rule addresses _______:

  • A.  conflicts of interest.
  • B.  the situations in which a fee agreement must be reduced to writing.
  • C.  communicating with a represented person.
  • D.  advertising & client solicitation.

V.R.Pr.C. 4.2 prohibits a lawyer from communicating with a represented person on the subject of the representation.  There is an exception when the represented person contacts a lawyer who is not otherwise involved in the matter for a second opinion.

Question 4

Attorney referred Client to Lawyer.  Lawyer completed the representation and billed Client.  Lawyer and Attorney have agreed that, given the referral, Lawyer will share the fee with Attorney.  What else must happen?

  • A.   The overall fee must be reasonable, and client must agree in writing to the division.
  • B.   Lawyer and Attorney must divide the fee in proportion to services rendered, or each must have agreed to accept joint responsibility for the representation.”
  • C.   A & B.  V.R.Pr.C. 1.5(e) and last week’s post Thinking about a referral fee? Think “fee division” instead.
  • D.  Neither A nor B.

Question 5

In 1993, Tom Hanks won the Academy Award for Best Actor for his performance in Philadelphia.  In the movies, Hanks’ character had a lawyer named Joe Miller.  The lawyer attended a Halloween party in which his “costume” was printouts of statutes taped to his work outfit.

The character who played the lawyer had previously won the Academy Award for Best Supporting Actor in a movie set during the Civil War and would later win the Academy Award for Best Actor for his portrayal of an unethical police officer.  In 2018, he was nominated for the Best Actor Oscar for a movie in which he played a lawyer who impermissibly disclosed confidential information related to the representation of a client in order to collect the award for providing information that would lead to the arrest of someone wanted by law enforcement.

Name the actor. Bonus: what was his Halloween costume in Philadelphia?

Denzel Washington played Attorney Joe Miller in Philadelphia.  For Halloween, he was a “law suit.”

Five for Friday #265 (and 5 Halloween Costumes)

Happy Friday!

Many thanks to all who reached out, especially those who made the trip to NYC.  Much appreciated!

So, it’s Halloween weekend. A lazy blogger might use the occasion to publish his third annual ranking of the Halloween candies.[1]

Not me!

Especially since my top 4 remain unchanged – $100 Grand, Peanut Butter Cup, Baby Ruth, Peanut M&M’s – and I don’t want my inbox flooded with messages of abject astonishment that (insert an inferior candy bar here) wasn’t included.

No, instead, I’m marking the holiday with a different type of list: some of my mom’s favorite Halloween pictures of The First Brother and me when we were kids.  Feel free to join the fun by sending pictures Halloween of younger you.  Word to the (un)wise: submissions will be published.

My mom sent me many pics. Those that follow reflect conversations we had about this project, my desire not to have certain images in the public domain, and the fact that I’m the Chief Justice of a one-person court that has ultimate editorial control over these pages.  Without further ado, let’s hop in a time machine and travel to the early 1970s and, for one, the late 60s!

#5

This clown is The First Brother when he was in 1st grade. I include it only to compare to later pictures that will make clear The First Brother’s capacity to pull off a variety of roles.

#4

This is me as a pirate. I was in 3rd grade.  Apparently third graders of the day believed that pirates looked more intimidating when biting their lips.  Also, in that I wore it over my sweater, I assume the vest conveyed some sort of rank among my fellow buccaneers. The sweater must’ve been one of my favorites. I also wore it for that year’s school picture.

#3

This is The First Brother when he was 6.  Are you telling me that detective wasn’t going to solve the case??? Come on! He’s a perfect combination of Hercule Poirot, Inspecter Clouseau, and James Bond.  No wonder he went on to read every book in The Hardy Boys series in a single summer.

#2

This is me when I was 15 months old.  My mom sewed orange crepe paper to my snowsuit and passed me off as a pumpkin. Judging from my expression, I can only surmise I’d just looked in the mirror and noticed the hat.

#1

This is the one that The First Brother and I will always remember. I’m 5, he’s 3.  I’m in a sailor suit that a neighbor had outgrown.  Apparently an oft forgotten aspect of the 70s is the decade’s active secondary market for children’s sailor suits. Anyhow, it’s not me that has this Halloween seared in our memories. 

My brother is wearing his green snowsuit.  It was actually green, no crepe paper required. My mother wrote “spinach” on his forehead. 

We trick-or-treated as Popeye and his trusty can of spinach.

Happy Halloween! 

Onto the quiz!

Rules

  • None.  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

This week is National Celebrate Pro Bono Week.  Citing one of the 7Cs of Legal Ethics, lawyers often express reluctance to do pro bono work. There’s no need to fear! Indeed, here’s one of the comments to the rule that sets out the duty that lawyers worry that they might violate if they take a pro bono case in a practice area with which they’re not too familiar.  Which C?

  • “A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar.  Some important legal skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study.”

Question 2

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 3

There’s a rule that includes an exception for when a person is seeking a second opinion.  The rule addresses _______:

  • A.  conflicts of interest.
  • B.  the situations in which a fee agreement must be reduced to writing.
  • C.  communicating with a represented person.
  • D.  advertising & client solicitation.

Question 4

Attorney referred Client to Lawyer.  Lawyer completed the representation and billed Client.  Lawyer and Attorney have agreed that, given the referral, Lawyer will share the fee with Attorney.  What else must happen?

  • A.   The overall fee must be reasonable, and client must agree in writing to the division.
  • B.   Lawyer and Attorney must divide the fee in proportion to services rendered, or each must have agreed to accept joint responsibility for the representation.”
  • C.   A & B.
  • D.  Neither A nor B.

Question 5

My first year in a law school, one of my friends showed up for a Halloween party. As best as I could figure, he was dressed as a Victoria’s Secret model. Then, he explained it to me. He’d written “Id,” “Ego,” and “Superego” on his garment. He was a Freudian Slip.

In 1993, Tom Hanks won the Academy Award for Best Actor for his performance in Philadelphia.  In the movies, Hanks’ character had a lawyer named Joe Miller.  The lawyer attended a Halloween party in which his “costume” was printouts of statutes taped to his work outfit.

The character who played the lawyer had previously won the Academy Award for Best Supporting Actor in a movie set during the Civil War and would later win the Academy Award for Best Actor for his portrayal of an unethical police officer.  In 2018, he was nominated for the Best Actor Oscar for a movie in which he played a lawyer who impermissibly disclosed confidential information related to the representation of a client in order to collect the award for providing information that would lead to the arrest of someone wanted by law enforcement.

Name the actor. BONUS – what was his Halloween costume in Philadelphia? The one where he taped printouts of statutes to clothes.


[1] 2020’s flawed rankings are here.  2021’s atonement is here.

Monday Morning Honors #264

Happy Monday.

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

Honor Roll

Answers

Question 1

Next week is National Celebrate Pro Bono Week.  The Rules of Professional Conduct include a series of rules that address pro bono work.  One of those rules makes clear that other rules are somewhat relaxed for lawyers who, with no expectation of continued representation, offer short-term legal services at programs sponsored by a court or non-profit.

What’s the topic of the rules that are somewhat relaxed?

CONFLICTS.  V.R.Pr.C. 6.5:

(a) A lawyer who, under the auspices of a program sponsored by a nonprofit organization or court, provides short-term limited legal services to a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter:

  • is subject to Rules 1.7 and 1.9(a) only if the lawyer knows that the representation of the client involves a conflict of interest; and

(2) is subject to Rule 1.10 only if the lawyer knows that another lawyer associated with the lawyer in a law firm is disqualified by Rule 1.7 or 1.9(a) with respect to the matter.

(b) Except as provided in paragraph (a)(2), Rule 1.10 is inapplicable to a representation governed by this rule.”

PS: for information on how to participate in pro & low bono programs, go here or email Mary Ashcroft, the VBA’s wonderful Legal Access Coordinator.  Mary has announced her retirement.  Mary – thank you for you all that you’ve done for Vermonters and to increase access to both justice and legal services!

Question 2

Here’s language from the comment to a rule.  Fill in the blank. Hint: it’s 4 words, one of which is one of the 7Cs of Legal Ethics.

“In such situations, the advocate’s proper course is to remonstrate with the client confidentially, advise the client of the lawyer’s duty of CANDOR TO A TRIBUNAL and seek the client’s cooperation with respect to the withdrawal or correction of the false statements or evidence.”

See, V.R.Pr.C. 3.3, Cmt. [10].

Question 3

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

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

Question 4

A dispute involving New York’s version of a rule made national headlines this week, even bringing legal ethics to the sports pages.  Here’s a comment to Vermont’s version of the rule.  The SAME word correctly fills in each blank.  What word?

“In the case of a represented__________, this rule prohibits communications with a constituent of the _________  who supervises, directs or regularly consults with the __________’s lawyer concerning the matter or has authority to obligate the __________ with respect to the matter or whose act or omission in connection with the matter may be imputed to the ________ for purposes of civil or criminal liability.”

“ORGANIZATION.” See, V.R.Pr.C. 4.2, Cmt. [7]. And this blog post.

Question 5

In 2015, the Wisconsin Supreme Court suspended a lawyer for 60 days for misconduct that occurred while the lawyer was representing a client who hired the lawyer to assist in recovering money spent on John Lennon memorabilia that turned out to be fake.

Four years earlier, in an article about a different client, the Milwaukee Journal Sentinel quoted the lawyer as referring to a deceased former client as “an aberration of a human being that comes around about once every 50 years and does a hell of a lot of damage.” According to the paper, the lawyer added that the deceased former client was “the wimpiest guy I ever met.”

In 1992, and before the client died in prison, a jury rejected the lawyer’s evidence and argument that the client was insane at the time of the client’s depraved and horrific crime spree that spanned more than a decade.

The deceased client is the subject of two relatively new Netflix productions. One, a documentary, is the 4th most watched show on Netflix this month. The other, a dramatized version of the client’s crimes and trial, is the 2nd most watched. Variety reported that in the week that followed the dramatized version’s September release, the show “was the 10th most-streamed program ever recorded in a single week in Nielsen history.”

Honestly, watching the dramatized version, I was so repulsed/disturbed/scared that I had trouble making it through the opening scene.

Name the deceased former client.

Jeffrey Dahmer.   

Five for Friday #264

Welcome to Friday and the 264th legal ethics quiz.

Earlier this week I pondered whether today’s intro might reference the NCAA basketball tournament. As any fan of or participant in March Madness likely knows, there are always 64 teams in the “bracket.” Indeed, who can forget 2020, when 48 concepts involving legal ethics and professional responsibility joined 16 quotes from My Cousin Vinny in this blog’s “Professional Responsibility Madness” bracket. Vermont’s legal profession voted out a Final Four that looked like this:

Anyhow, in the tournament, 64 teams are divided into four “regions.”  Each region has 16 teams, with the teams seeded 1 thru 16 according to perceived strength. Much of the discussion in the weeks leading up to the tournament focuses on predicting which teams will receive the coveted top seed in each bracket.

With that as a backdrop, as this week went on, I noticed an uptick in news of the bizarre coming from the world of legal ethics and professional responsibility. Here are four stories from the past week alone:

  • The Ohio judge who was indefinitely suspended for, among (many) other things, conducting “business in a manner befitting of a game show host.”  Above The Law has the story here. Having read the opinion, I wonder whether game show hosts will object to the comparison. 
  • The lawyer who, as reported by the Portland Press Herald, was sanctioned for having a sexual relationship with a client AND for certifying that that he had done CLE when, in fact, his employee had done it for him.
  • As reported by The Volokh Conspiracy, the lawyer who was sanctioned for plagiarizing opposing counsel’s (!!) motion! Yes, you read that correctly.  Here is the court’s opinion in response to a motion for sanctions. The first two lines cut straight to the chase.
  • The Legal Profession Blog has the story of a Kansas lawyer who accepted title to a client’s motorcycle as security for payment of legal fees.  The client, S.R., didn’t pay and didn’t deliver the motorcycle when asked to do so by the lawyer. As for what happened next, here’s an excerpt from the Kansas Supreme Court order suspending the lawyer’s license: “Respondent wrongfully reported to law enforcement that S.R. had stolen Respondent’s motorcycle. Respondent knew, or should have known, this misleading report could have provided the district court grounds to revoke S.R.’s probation (which Respondent previously negotiated on behalf of S.R.) and to sentence S.R. to a term of imprisonment.”

If we were having a Was That Wrong? tournament, each of these stories would be a contender for a regional top seed and the championship itself.

Sadly, if I had put some effort into this, I probably could’ve created a bracket that made it to sixty-four.

And since this is a quiz introduction, I prefer the phonetic version of the previous sentence:

“Sadly, if I had put some effort into this, I probably could’ve created a bracket that made it 2 64.”

As always, let’s be careful out there.

Onto the quiz!

Rules

  • None.  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

Next week is National Celebrate Pro Bono Week.  The Rules of Professional Conduct include a series of rules that address pro bono work.  One of those rules makes clear that other rules are somewhat relaxed for lawyers who, with no expectation of continued representation, offer short-term legal services at programs sponsored by a court or non-profit.

What’s the topic of the rules that are somewhat relaxed?

PS: for information on how to participate in pro & low bono programs, go here or email Mary Ashcroft, the VBA’s wonderful Legal Access Coordinator.  Mary has announced her retirement.  Mary – thank you for you all that you’ve done for Vermonters and to increase access to both justice and legal services!

Question 2

Here’s language from the comment to a rule.  Fill in the blank. Hint: it’s 4 words, one of which is one of the 7Cs of Legal Ethics.

“In such situations, the advocate’s proper course is to remonstrate with the client confidentially, advise the client of the lawyer’s duty of ____________ and seek the client’s cooperation with respect to the withdrawal or correction of the false statements or evidence.”

Question 3

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

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

Question 4

A dispute involving New York’s version of a rule made national headlines this week, even bringing legal ethics to the sports pages.  Here’s a comment to Vermont’s version of the rule.  The SAME word correctly fills in each blank.  What word?

“In the case of a represented__________, this rule prohibits communications with a constituent of the _________  who supervises, directs or regularly consults with the __________’s lawyer concerning the matter or has authority to obligate the __________ with respect to the matter or whose act or omission in connection with the matter may be imputed to the ________ for purposes of civil or criminal liability.”

Question 5

In 2015, the Wisconsin Supreme Court suspended a lawyer for 60 days for misconduct that occurred while the lawyer was representing a client who hired the lawyer to assist in recovering money spent on John Lennon memorabilia that turned out to be fake.

Four years earlier, in an article about a different client, the Milwaukee Journal Sentinel quoted the lawyer as referring to a deceased former client as “an aberration of a human being that comes around about once every 50 years and does a hell of a lot of damage.” According to the paper, the lawyer added that the deceased former client was “the wimpiest guy I ever met.”

In 1992, and before the client died in prison, a jury rejected the lawyer’s evidence and argument that the client was insane at the time of the client’s depraved and horrific crime spree that spanned more than a decade.

The deceased client is the subject of two relatively new Netflix productions. One, a documentary, is the 4th most watched show on Netflix this month. The other, a dramatized version of the client’s crimes and trial, is the 2nd most watched. Variety reported that in the week that followed the dramatized version’s September release, the show “was the 10th most-streamed program ever recorded in a single week in Nielsen history.”

Honestly, watching the dramatized version, the opening scene so disturbed/scared me, that I had trouble making it through.

Name the deceased former client.

Monday Morning Honors #262

Happy October! 

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

Honor Roll

Answers

Question 1

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

CONFIDENTIALITY.  See, V.R.Pr.C. 1.6(c).

Question 2

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

What group? Former or current __________:

  • A.  law professors.
  • B.  government attorneys.  See, V.R.Pr.C. 1.10(d), referring to V.R.Pr.C. 1.11
  • C.  legislators.
  • D.  All the above.

Question 3

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

Whether self-represented lawyers:

  • A.  can count the work as “pro bono.”
  • B.  are subject to the rule that prohibits communication with a represented person without the consent of the represented person’s lawyer.  See, this blog post.  The post generated significant feedback.  Then, we had an interesting discussion of this topic during my seminar at the VBA meeting on Friday.  There’s an impetus to explore a rule change.
  • C.  have standing to file a disciplinary complaint against themselves for lack of competence or diligence.
  • D.  before proceeding, must get informed consent from themselves due to the inherent conflict in being both lawyer and client.

Question 4

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

Does what?

Include a client on an email to opposing counsel.  See, this blog post.

Question 5

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

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

Name the product.

The Baby Ruth candy bar.

Five for Friday #262

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

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

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

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

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

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

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

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

Onto the quiz!

Rules

  • None.  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

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

Question 2

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

What group? Former or current __________:

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

Question 3

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

Whether self-represented lawyers:

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

Question 4

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

Does what?

Question 5

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

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

Name the product.