Monday Morning Honors #261

Happy Monday! 

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

Honor Roll

  • Evan Barquist, Montroll Oettinger & Barquist
  • Alberto Bernabe, Professor, UIC School of Law
  • Beth DeBernardi, Administrative Law Judge, Vermont Department of Labor
  • Benjamin Gould, Paul Frank + Collins
  • Robert Grundstein
  • Keith Kasper, McCormick, Fitzpatrick, Kasper and Burchard
  • John T. Leddy, McNeil, Leddy, Sheehan
  • Pam Loginsky, Deputy Prosecuting Attorney, Pierce County, Tacoma, WA
  • Kevin Lumpkin, Sheehey Furlong & Behm
  • Brad Martin, Baystate Financial
  • 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
  • James Remsen, Master Planner, Parker Hannafin
  • Keith Roberts, Darby Kolter & Roberts
  • Jason Warfield, J.D.
  • The Honorable John Valente, Vermont Superior Judge
  • Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

Which of the 7 Cs of Legal Ethics refers specifically to funds & property?

COMMINGLING.

Tip:  V.R.Pr.C. 1.15(a) requires a lawyer to keep funds & property of clients and third persons separate from the lawyer’s own.  There is an exception for funds deposited in trust “for the sole purpose of paying service charges or fees on [the] account, but only in an amount necessary for that purpose.”  The most common cause of “commingling” a lawyer’s failure to remove an earned fee from trust.  Remember: as I pointed out in Trust Accounting in a Nutshell, commingling can also result from improper handling of a fee that is paid in advance and that complies with Rule 1.5(f).

Question 2

Lawyer called me with an inquiry.  I listened, then responded “one of the situations that requires it is when continued representation will result in a violation of the Rules of Professional Conduct.”

Given my response, what does “it” refer to?  Whether Lawyer must _______:

  • A.   self-report to Disciplinary Counsel.
  • B.   disclose confidential information over a client’s objection.
  • C.   withdraw from representing a client.  V.R.Pr.C. 1.16(a)(1).
  • D.   put Lawyer’s malpractice insurance carrier on notice of a potential claim.

Question 3

Attorney represents Client.  At the outset of the relationship, Client advanced a fee that Attorney billed against.  When the matter resolved, Client was so pleased that Client lauded Attorney’s virtues in a public comment posted to Attorney’s firm’s social media page.

What do the rules require Attorney to keep for 6 years?

  • A.  Client’s confidences and secrets.
  • B.  Records of funds held on behalf of Client.  V.R.Pr.C. 1.15(a)(1).
  • C.  A “copy’ of the social media page because it’s an “advertisement.”
  • D.  A copy of Client’s file.

Answer (A) is not correct.  Unless disclosure is permitted or required by the rules, a former client’s confidences must be kept forever.

Answer (C) is not correct. The rule requiring lawyers to keep copies of advertisements was repealed long ago. And, when it was in place, it required ads to be kept for 2 years.

Answer (D) is not correct.  There is no requirement for a lawyer to keep a “copy” of a client’s file.  Rather, Rule 1.169d) requires a lawyer to deliver “papers and property” to which the client is entitled upon the termination of the representation. 

Question 4

There are two types of cases in which a contingent fee is prohibited.  Name them.

  • V.R.Pr.C. 1.5(d)(2) prohibits a contingent fee for representing a defendant in a criminal case.
  • V.R.Pr.C. 1.15(d)(1) prohibits a fee “which is contingent upon the securing of a divorce or upon or upon the amount of spousal maintenance or support, or property settlement in lieu thereof.”

NOTE: the rule ALLOWS contingent fees “in domestic relations matters which involve the collection of (i) spousal maintenance after a final judgment is entered, or (ii) child support and maintenance supplement arrearages due after final judgment, provided that the court approves the reasonableness of the fee agreement.  This can be an excellent tool to provide access to legal services.

Question 5

Earlier this week, the Academy of Arts & Television continued its embarrassing tradition of snubbing Better Call Saul.  Yet again, the show did not receive a single Primetime Emmy.  In protest, and because Jimmy McGill/Saul Goodman is my favorite ethically challenged fictional lawyer, I’m devoting Question 5 to the show for the second time in three quizzes. 

Doing so is quite timely.  Tomorrow is ___________ Day.  The word that properly fills in the blank is quite relevant to the legal profession.  It’s also the answer to this question:

In both Better Call Saul and Breaking Bad, what’s on the wallpaper in Saul’s office? 

Here’s a hint that might help people who have never seen the show.

Today is September 16. On this day in 1830, Oliver Wendell Holmes, Sr. (father of Supreme Court Justice Oliver Wendell Holmes, Jr.) wrote a poem. The poem is widely considered to have saved a US Naval vessel from being decommissioned. The vessel, which is now the oldest commissioned ship in the navy, is named after the answer to Question 5.

Saul’s wallpaper shows The Constitution of the United States.   Saturday was Constitution Day.  And Oliver Wendell Holmes’s Old Ironsides is a poem about the USS Constitution.

Five for Friday #261

Welcome to Friday and the 261st legal ethics 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

Which of the 7 Cs of Legal Ethics refers specifically to funds & property?

Question 2

Lawyer called me with an inquiry.  I listened, then responded “one of the situations that requires it is when continued representation will result in a violation of the Rules of Professional Conduct.”

Given my response, what does “it” refer to?  Whether Lawyer must _______:

  • A.   self-report to Disciplinary Counsel.
  • B.   disclose confidential information over a client’s objection.
  • C.   withdraw from representing a client.
  • D.   put Lawyer’s malpractice insurance carrier on notice of a potential claim.

Question 3

Attorney represented Client.  At the outset of the relationship, Client advanced a fee that Attorney deposited into trust and billed against.  When the matter resolved, Client was so pleased that Client lauded Attorney’s virtues in a public comment posted to Attorney’s firm’s social media platforms.

What do the rules require Attorney to keep for 6 years?

  • A.  Client’s confidences and secrets.
  • B.  Records of funds held on behalf of Client.
  • C.  A “copy” of the comment on the social media platforms because it is an “advertisement.”
  • D.  A copy of Client’s file.

Question 4

There are two types of cases in which a contingent fee is prohibited.  Name them.

Question 5

Shout out to my friend Brad Martin!

Earlier this week, the Academy of Television Arts & Sciences continued its embarrassing tradition of snubbing Better Call Saul.  Yet again, the show did not receive a single Primetime Emmy.  In protest, and because Jimmy McGill/Saul Goodman and Kim Wexler are my favorite ethically challenged fictional lawyers, I’m devoting Question 5 to the show for the second time in three quizzes. 

Doing so is quite timely.  Tomorrow is ___________ Day.  The word that properly fills in the blank is very much a part of the legal profession.  It’s also the answer to this question:

In both Better Call Saul and Breaking Bad, what’s on the wallpaper in Saul’s office? 

Here’s a hint that might help people who have never seen the show.

Today is September 16. On this day in 1830, Oliver Wendell Holmes, Sr. (father of Supreme Court Justice Oliver Wendell Holmes, Jr.) wrote a poem. The poem is widely considered to have saved a US Naval vessel from being decommissioned. The vessel, which is now the oldest commissioned ship in the navy, is named after the answer to Question 5.

Five for Friday #260

Welcome to Friday and the 260th #fiveforfriday legal ethics quiz!

I suppose I could concoct an intro that involves 260 or 8/26.  Alas, that would require effort, an ingredient not exactly coursing through my veins this morning.  I’m posting from the shores of Lake Dunmore, enjoying coffee and the late stages of the sunrise.  Putting too much effort into an intro seems inconsistent with the vibe, especially a mere 48 hours removed from my post Don’t Stresslax.

So, instead, I’ll use this space to wish fare winds and a following sea to The First Brother. Tonight is his last in Vermont, as tomorrow he officially sets out for Savannah, where adventure and temperate winters await. He closed on his Vermont place Monday and has spent the week here at Dunmore, resting before pulling his camper south.  While I will miss him, I’m happy for him and look forward to posting January and February quizzes from the new abode.

As I blogged the prior paragraph, a bit of effort entered by body. 

According to my research, it’s 1084.6 miles from Burlington to Savannah.  The First Brother’s condo was slightly south of downtown, so let’s call his upcoming trek 1084 miles.

260 + 826 = 1084.

To the First Brother!

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

Of the 7Cs of Legal Ethics, which specifically mentions “information related to the representation” in the rule that governs that C?

Question 2

Yesterday I blogged about an order in which a New York trial judge sanctioned lawyers for uncivil and obstructive conduct during a deposition. 

Let’s imagine a similar incident involving a deposition that’s taken in a Vermont matter.  One of Vermont’s Rules of Professional Conduct makes it a violation for a lawyer to “engage in undignified or discourteous conduct which is degrading or disruptive to a tribunal.” 

Does the rule apply at a deposition?

  • A.           No.  A comment to the rule specifically leaves control of depositions to the trial courts.
  • B.           No, but a comment to the rule cautions lawyers against conduct that would be prohibited in court.
  • C.           Yes.

Question 3

Fill in the blank.  The same word goes in each blank.  What is it?

There’s a rule that sets out a lawyer’s duties when dealing with an __________ person.  The duties include not stating or implying that the lawyer is “disinterested,” and correcting any misunderstanding that the lawyer knows or reasonably should know that the __________ person has about the lawyer’s role.  A comment to the rule states that the “rule does not prohibit a lawyer from negotiating terms of a transaction or settling a dispute with the __________ person.”

Question 4

Lawyer called me with an inquiry.  I listened, then responded that “a comment to the rule, states that ‘matters are substantially related if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the new matter.’”

Lawyer didn’t contact me to discuss confidentiality.  Rather, given my response, Lawyer contacted me because Lawyer was concerned about, what?

Question 5

When the First Brother arrives in Savannah, he’ll be just over 200 miles southeast of Monticello, GA.  A movie that the American Bar Association has ranked as one of the Top 3 of all-time was filmed in Monticello. 

While most fans associate the movie with a neighboring state and its mud, in fact, the convenience store and courthouse that feature so prominently in the film are in Georgia.  In 2019, then federal judge Merrick Garland wrote an opinion in which he made numerous references to the movie, including a statement that the lead character “taught a master class in cross-examination.”

Name the movie.

Monday Morning Honors #259

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

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

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

Honor Roll

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

Answers

Question 1

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

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

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

Question 2

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

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

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

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

Question 3

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

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

Question 4

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

Given my response, Lawyer’s conflict involved:

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

Question 5

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

Here is a license plate that hangs in my garage.

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

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

Name the show whose final episode aired earlier this week.

BETTER CALL SAUL

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

Howard Hamlin’s Jaguar bore the plate NAMAST3

Five for Friday #259

Welcome to Friday and the 259th legal ethics quiz.

I’ve struggled to find the motivation to blog over the past few months.  Today hasn’t been much different.  However, this morning, I managed to create this video, which will serve as this week’s official intro.  I’m finally getting around to posting the blog that goes with it.  In the video, I discuss why I’m not in the garage, my new hobby, and lucky numbers.

Yes, lucky numbers.

When it comes to numbers, I consider many to be lucky and even more to be unlucky.  As I mention in the video, I don’t know why I’m so much more than just a little stitious about numbers.  Well, it turns out, science itself agrees that some numbers are, in fact, lucky!

The best part?

One of the numbers officially recognized as “lucky” by science & mathematicians?

259!!!

Onto the quiz!

the-quiz

Rules

  •  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

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

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

Question 2

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

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

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

Question 3

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

  • A. No.
  • B.  Yes, because a party is always free to contact opposing counsel.
  • C.  Yes.  The comments make clear that, in this situation, Client has consented to the communication.
  • D. Wait.  Kim & Saul are still licensed to practice?

Question 4

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

Given my response, Lawyer’s conflict involved:

  • A.  A personal interest of Lawyer.
  • B.  A former client.
  • C. A current client.
  • D. Lawyer’s paralegal.

Question 5

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

Here is a license plate that hangs in my garage.

IMG_7399

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

Los Pollos Hermanos - Wikipedia

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

Name the show whose final episode aired earlier this week.

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

 

 

 

 

 

Breaking News Alert!! In fact there IS a legal ethics quiz this week!

Welcome (very belatedly) to Friday and the 257th legal ethics quiz!

With CLE season in full-swing, I’ve not blogged much lately and wasn’t going to post a quiz today.  Further, I don’t believe I’ve ever published a quiz that, like today’s, is the week’s only post. Rather, the Friday quizzes have served as a sort of dessert that follows the week’s meal of substantive posts on legal ethics and professional responsibility.

Then, a few minutes ago, I was struck by this thought: “Mike, what would we have written about in this week’s intro had we posted a quiz?”  I replied: “Self, great minds truly think alike! I was just asking us the same thing!”  So, we fired up the Google Machine to research “257” and “June 17.”

Aside: candidly, I was hoping that my high school graduation had fallen on June 17.  If it had, I would’ve posted this picture from my senior year:

IMG_2557

Alas, no such luck. Either with the date or with maintaining that flow as I aged!

However, and much more seriously, June 17 is an important day in legal ethics.  50 years ago today, “The Plumbers” broke into the Democratic National Committee’s headquarters at the Watergate complex.  The rest is history.

What’s that got to do with legal ethics?   Excellent question!  Here’s the answer.

In 2014, the ABA Journal published Watergate’s lasting legacy is to legal ethics reform, says John Dean.”  As the post notes, the role that lawyers played in the scandal resulted in:

  • the ABA directing law schools seeking accreditation to require that students take a class in legal ethics before graduating;
  • states requiring applicants for admission to the bar to pass the MPRE; and,
  • states mandating continuing legal education in ethics and professional responsibility.

The impact went further.

In 2012, the ABA Journal posted The Lawyers of Watergate: How a “3rd-Rate” Burglary Provoked New Standards for Lawyer EthicsThe article outlines how Watergate eventually resulted in the ABA’s 1983 vote to replace the Model Code of Professional Responsibility with the Model Rules of Professional Conduct.  The Vermont Rules of Professional Conduct are based on the ABA Model Rules.

The 2012 post also briefly delves into the history of Rule 1.13.  The rule governs the conduct of lawyers who represent or are employed by organizations, including government organizations.  Post-Watergate, the famed Kutak Commission recommended “that lawyers representing an organization be allowed to disclose confidential information concerning officers or employees who are violating the law.”

I could go on and on about Watergate and the resulting impact on legal ethics and professional responsibility.  But who wants that on a Friday afternoon?  Nobody, that’s who.

So, I’ll leave you with two things.

First, to learn more about the legal ethics fallout from Watergate, fire up your own Google Machine.

Second, given Watergate’s direct impact on the narrow area of law that I practice, I’d violate my duties of competence and diligence by NOT posting today.

Onto the quiz!

Rules

  •  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

 When I’m presenting on the 7 Cs of Legal Ethics, which C am I discussing when I make this statement?

  • “Generally, the duty is more relaxed when negotiating with opposing counsel than it is when making statements of material fact or law to a tribunal.”

 Question 2

Fill in the blank. I understand that, arguably, each is correct.  However, I’m looking for the exact word used in the rule.

Lawyer called me with an inquiry. I listened, then replied “the rule only prohibits you from representing the client at trial if you are a(n) __________ witness.

  • A.  Fact.
  • B.  Expert.
  • C.  Necessary.
  • D.  Adverse

Question 3

Each of these four phrases in the same rule.  However, the rule treats one differently than the other tree.  Which phrase does the rule treat differently?

  • A.  The representation will result in violation of the rules of professional conduct.
  • B.  The lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.
  • C.  The lawyer is discharged.
  • D.  The representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client.

Question 4

 At several seminars this month, I’ve resolved to review Vermont’s rule on “lateral transfers.”  In my opinion, the rule unnecessarily inhibits mobility and disproportionately impacts our newer lawyers.  What’s the rule on lateral transfers relate to?

  • A.  Trust account management.
  • B.  Conflicts that arise from someone a lawyer knew/worked with before becoming a lawyer.
  • C.  Conflicts that arise when a lawyer moves from one private firm to another.
  • D.  Conflicts that arise when someone other than the client pays for a lawyer to represent the client.

Question 5

On June 17, 1994, a lawyer who would later become one of the founders of Legal Zoom held a press conference.  The lawyer opened the press conference with a statement intended for the lawyer’s client, saying to the client:

  • “Wherever you are, for the sake of your family, for the sake of your children, please surrender immediately.”

Then, the lawyer recounted the events of a day that had begun with the lawyer intending to facilitate the client’s surrender to law enforcement, only to have the client and a friend disappear while the lawyer, the client, and others were waiting for police to arrive.

Finally, the lawyer asked another lawyer, who was also a close friend of the client, to read a letter from the client.  Many perceived it to be a suicide letter. In the end, it was not.  While you might not remember the lawyer who read the letter, you’re most certainly aware of many of the members of the lawyer’s family.  In the 21st century, you can’t help but not to be aware of them.

In 2016’s Emmy Award winning series about the client’s case and eventual trial, the lawyer who began the press conference, the lawyer who read the note, and the client were played by John Travolta, David Schwimmer, and Cuba Gooding, Jr.

Name the lawyers and the client.

Five for Friday #256

Welcome to Friday and the 256th legal ethics quiz!

Zenzizenzizenzic.

That is not a typo or misspelling.  It’s an actual word that, thanks to this intro, might someday propel you to trivia glory.

But first, the inaugural Vermont Film & Music Festival begins tonight in Stowe.  If you go, don’t forget to say hi to David Rocchio. As I blogged Wednesday, Rocchio made the move from the law to the movies and is one of the creative minds behind the festival.

Now, let’s get back to zenzizenzizenzic.

As most know, on Fridays, I try to tie the intro to the quiz number.  Often this results in me researching the number.  In so doing, it never ceases to amaze me how many complicated words & definitions are used to describe numbers and things associated therewith.  For all the grief directed at the law for our vocabulary being tough to comprehend, mathematicians seem to have gotten a free pass.

For example, my birthday is on July 18th, and, after last night’s win, the Celtics are one game closer to their 18th NBA championship.  18 is a composite number, a semi-perfect number, an inverted square-prime, an abundant number, a solitary number, a Fine number, the number of one-sided pentominoes, and, in base 10, a Harshad number.

I have no idea what any of that means, but it’s a lot of words.  Still, compared to other numbers I’ve researched, 18 has relatively few confusing descriptors associated with it.

Which brings me, finally, to zenzizenzizenzic.

By far the most eye-catching word ever to leap off Wikipedia during my numerical research, zenzizenzizenzic is used to describe any number that is the 8th power of another number.  That is, x8 is always a zenzizenzizenzic number.  You can learn more about the word origin here.

When I read the origin, my initial reaction was that that they’d yet to invent superscript. I believe that’s incorrect.  Rather, when describing xx, they only had words for x2 and x3, “squared” and “cubed.”  They didn’t have words for x to any other power. So, for x4, someone decided to use “squared squared.”  This led to using “squared squared squared” to refer to a number to its 8th power.  At the time, the Latin word for “squared” was “censo.” In English, it was “zenzic.”  Hence, zenzizenzizenzic.

Brief aside: nor does it cease to amaze me what math scholars were able to figure out thousands of years ago.  Sheer brilliance.  But to think that it took so long to invent words for powers beyond x3?  Kind of takes a bit of the shine off their other accomplishments.  Also, it’s now clear to me that we banned mathematicians from helping to draft the Constitution. Otherwise it’d include a “jeopardy jeopardy” clause.

Anyhow, two final points.

First, of all the words in the Oxford English Dictionary, none has more z’s than zenzizenzizenzic.  I expect a toast in my honor should you ever parlay this tidbit to trivia glory.

Second, there is only one 3-digit zenzizenzizenzic number.  I’m sure many of you have probably guessed it by now.   28?

256.

Onto the quiz!

the-quiz

Rules

  •  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

 One of my 7 Cs of Legal Ethics, identify the duty that is defined as requiring “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

Question 2

Fill in the blanks.  The same word goes in each. The answer is not “legal.”

There’s a rule that requires a lawyer to “render _________ advice.”  A comment to the rule states that “a client is entitled to straightforward advice expressing the lawyer’s honest assessment” and that “a lawyer should not be deterred from giving ______ advice by the prospect that the advice will be unpalatable to the client.”

Question 3

There’s a rule that prohibits a lawyer from knowingly making a false statement of material fact or law to a third person while representing a client.  Does a lawyer violate the rule by knowingly misstating a client’s “bottom line” in settlement negotiations with opposing counsel?

  • A.  Yes.
  • B.  Yes, but there’s an exception for lawyers who represent criminal defendants in plea negotiations.
  • C.  No.  A comment to the rule states that, under conventional negotiation standards, certain statements are not to be taken as statements of material fact and that statements as to a client’s willingness to settle fall in this category.
  • D.  I sure as hell hope not.

Question 4

Lawyer called me with an inquiry. I listened*, then replied “the critical question seems to be whether it’s reasonable for you to believe that you will be able to provide competent representation to each affected client.”  At that exact moment, what were Lawyer and I discussing?

  • A.  Whether Lawyer has a conflict.
  • B.  Whether Lawyer’s conflict is waivable under Vermont’s rules.

*The First Brother eagerly awaits the quiz in which “Lawyer called me with an inquiry and I didn’t listen.”

Sorry Bro. Not this week.

Question 5

 6 years ago today, a person widely regarded as one of the greatest athletes and most influential people of the 20th century died of complications from Parkinson’s disease.

Arguably the most competent ever to compete in his sport, the athlete missed a chunk of the prime of his career due to a legal battle. After claiming conscientious objector status during the Vietnam War due to his religious beliefs, the athlete was charged and convicted of refusing to submit to induction to the Armed Forces.  The athlete appealed the conviction all the way to the United Supreme Court, a fight in which he eventually won one of his greatest’s victories when the Court overturned the conviction.

Years later, Bob Woodward and Scott Armstrong published The Brethren: Inside the Supreme Court. The book provides a behind-the-scenes look at the Court between 1969 and 1975. It includes a claim that the Court originally voted to uphold the athlete’s conviction, only to have the vote shift once the justice assigned to write the opinion changed his mind after further research into the tenets of the athlete’s religion.

If a lawyer were to use the athlete’s nickname to describe themselves in an ad, they’d probably be found in violation of the lawyer advertising rules. That would sting.

Who is the athlete?

Bonus: by what name does the caption of the Supreme Court opinion refer to the athlete?

Five for Friday #255

Welcome to Friday and the 255th legal ethics quiz.

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

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

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

Onto the quiz!

the-quiz

Rules

  •  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

A comment to a rule states that “information acquired in a prior representation may have been rendered obsolete by the passage of time, a circumstance that may be relevant in determining whether two matters are substantially related.”

Which two of the 7 Cs of Legal Ethics does the rule address?

 Question 2

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

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

 Question 3

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

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

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

 Question 4

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

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

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

 Question 5

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

Name either of the parties to the defamation case.

Monday Morning Honors #254

Happy Monday!

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

ps: heeding superstition Friday’s intro worked.  I ran a marathon in Maine yesterday and qualified for the 2023 Boston Marathon.

IMG_6868

Honor Roll

Answers

Question 1

 I often mention the 7 Cs of Legal Ethics. In my opinion, conceptualizing the 7 Cs is easier than trying to memorize the specific rules and as likely to lead to the most important C, compliance.

Which of the 7 Cs includes the following?

  • Situations in which an act that is otherwise prohibited is mandatory.
  • Situations in which an act this is otherwise prohibited is permissive.
  • Among the situations in which an act is permissive, the so-called “self-defense” exception.

Confidentiality.  Paragraph (a) sets out the prohibition against disclosing information relating to the representation of a client.  Paragraphs (b) and (c) outline the exceptions.   Rule 1.6 – Confidentiality of Information

Question 2

 There’s a rule that includes the following language:

  • “A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client . . .”

True or false?   The only exception to the rule is when entering into a fee agreement with the client.

FALSE.  V.R.Pr.C. 1.8(a) sets out the requirements that must be met for a lawyer to enter into a business transaction with a client. It is not limited to fee agreements.  See, Rule 1.8 – Conflict of Interest – Current Clients – Specific Rules

Question 3

 At a CLE, I said “the rule states that a ‘lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.’ ”  I was discussing the rule that applies when:

  • A.  a client files a motion to discharge their lawyer.
  • B.  a client’s capacity to make adequately considered decisions in connection with the representation is diminished.  Rule 1.14 – Client with Diminished Capacity
  • C.  a client fails to substantially comply with the terms of a fee agreement.
  • D.  a lawyer learns that the client has used the lawyer’s services to commit a crime or fraud that is not likely to cause significant bodily or financial injury to another.

Question 4

 In honor of Pam L:

Most of the Rules of Professional Conduct apply to all lawyers.  There’s one, however, that applies only to a lawyer in a specific practice area. The rule includes a requirement that is similar to the constitutional mandate announced by the United States Supreme Court in Brady v. Maryland.  The rule applies to:

  • A.  a lawyer who represents a criminal defendant who has not attained the age of majority.
  • B.  a prosecutor in a criminal case.  Rule 3.8 – Special Responsibilities of a Prosecutor
  • C.  a lawyer who is admitted to practice in a U.S. state and a foreign country.
  • D.  a lawyer who represents a publicly held corporation whose primary purpose is to engage in interstate commerce.

Question 5

 Larry Zerner is an entertainment lawyer in Los Angeles.  He uses Twitter to update movie fans on a long-running copyright dispute.  The dispute is between the producer and screenwriter of a movie that was released in 1980.  Since then, Paramount has released 11 more films in the franchise.

Zerner’s interest in the dispute stems from more than working as a lawyer.  In 1982, Zerner appeared in one of the sequels.  In cabins at Crystal Lake, Zerner’s character and the character’s friends were attacked by the franchise’s main character. Zerner’s character’s death allowed the main character to acquire an item that Zerner’s character had used to scare his friends in a prank.  The item has since become iconic in movie lore and pop culture.

Last fall, an appeals court upheld a trial court’s decision to award the screenwriter a copyright for the original script and the characters associated with the original film.  That hasn’t ended the dispute.  The producer contends that the copyright does not include content from the sequels, including the adult version of the franchise’s main character and the iconic item that the main character acquired after dispatching the character played by Attorney Zerner.

Name the movie franchise.                         FRIDAY THE 13th

Bonus: name the iconic item.                     Jason’s hockey mask

CNN has the story of the legal battle here.

 

Five for Friday #254

Welcome to Friday and the 254th legal ethics quiz!

On Friday the 13th, I’d be remiss not to open with Michael Scott:

Unlike Michael, and as has been well-chronicled in this space over the years, I’m infinitely more than a just a little stitious.  Therefore, I’m not going to share my weekend plans or endeavor to tie this intro to the number “254.”  Doing either would be bad luck, with sharing my plans certain to ruin them. Indeed, it’s likely a bad omen that I’ve written even this much.

As such, onto the quiz!

Rules

  •  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

 I often mention the 7 Cs of Legal Ethics. In my opinion, conceptualizing the 7 Cs is easier than trying to memorize the specific rules and as likely to lead to the most important C, compliance.

Which of the 7 Cs includes the following?

  • Situations in which an act that is otherwise prohibited is mandatory.
  • Situations in which an act this is otherwise prohibited is permissive.
  • Among the situations in which an act is permissive, the so-called “self-defense” exception.

Question 2

There’s a rule that includes the following language:

  • “A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client . . .”

True or false?   The only exception to the rule is when entering into a fee agreement with the client.

Question 3

At a CLE, I said “the rule states that a ‘lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.’ ”  I was discussing the rule that applies when:

  • A.  a client files a motion to discharge their lawyer.
  • B.  a client’s capacity to make adequately considered decisions in connection with the representation is diminished.
  • C.  a client fails to substantially comply with the terms of a fee agreement.
  • D.  a lawyer learns that the client has used the lawyer’s services to commit a crime or fraud that is not likely to cause significant bodily or financial injury to another.

Question 4

In honor of Pam L:

Most of the Rules of Professional Conduct apply to all lawyers.  There’s one, however, that applies only to a lawyer in a specific practice area. The rule includes a requirement that is similar to the constitutional mandate announced by the United States Supreme Court in Brady v. Maryland.  The rule applies to:

  • A.  a lawyer who represents a criminal defendant who has not attained the age of majority.
  • B.  a prosecutor in a criminal case.
  • C. a lawyer who is admitted to practice in a U.S. state and a foreign country.
  • D. a lawyer who represents a publicly held corporation whose primary purpose is to engage in interstate commerce.

Question 5

Larry Zerner is an entertainment lawyer in Los Angeles.  Zerner uses Twitter to update movie fans on a long-running copyright dispute.  The dispute is between the producer and screenwriter of a movie that was released in 1980.  Since then, Paramount has released 11 more films in the franchise.

Zerner’s interest in the dispute stems from more than working as a lawyer.  In 1982, Zerner appeared in one of the sequels.  In cabins at Crystal Lake, Zerner’s character and the character’s friends were attacked by the franchise’s main character. Zerner’s character’s death allowed the main character to acquire an item that Zerner’s character had used to scare the friends in a prank.  The item has since become iconic in movie lore and pop culture.

Last fall, an appeals court upheld a trial court’s decision to award the screenwriter a copyright for the original script and the characters associated with the original film.  That hasn’t ended the dispute.  The producer contends that the copyright does not include content from the sequels, including the adult version of the franchise’s main character and the iconic item that the main character acquired after dispatching the character played by Attorney Zerner.

Name the movie franchise.

Bonus: name the iconic item.