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.

Monday Morning Honors #253

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

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

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

First Nine Week Highest Honors and Honor Roll for NCES | Elementary

ANSWERS

Question 1

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

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

Question 2

Which appears in a different rule than the others?

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

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

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

 Question 3

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

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

A contingent fee. See, Rule 1.5 – Fees

Question 4

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

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

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

 Question 5

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

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

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

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

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

 

Five for Friday #253: Emotional Well-Being & The Kentucky Derby

Welcome to Friday and the 253rd #fiveforfriday legal ethics quiz!

It’s Well-Being Week in Law and today’s theme is “Emotional Well-Being: Feel Well.”  The organizers challenge us to learn to identify and manage our emotions to use them in a positive manner. In this video, and using a construct I used when coaching, I discuss emotional intelligence and:

  • accepting that we’ll experience negative emotions;
  • remembering W.I.N. when responding to those negative emotions;
  • winning our 3-feet of influence;
  • striving to be one of the 4 positives that others might need for their own well-being; and,
  • my Kentucky Derby picks.

The video references my blog post W.I.N. your 3-feet of influence. Finally, there’s still time to participate in Well-Being Week in Law.  For ideas, check out the participation guide. And, if interested, email me about your participation and I’ll include you in tomorrow’s blog post summarizing Vermont’s participation in the week’s well-being activities.

Have a great weekend!

Onto the quiz!

Kentucky Derby - Home | Facebook

Rules

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

 

Question 1

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

 Question 2

 Which appears in a different rule than the others?

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

Question 3

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

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

Question 4

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

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

 Question 5

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

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

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

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

Monday Morning Honors #252

Happy Monday!

Many thanks to the Young Lawyers Division of the Vermont Bar Association for putting on another fantastic event in Montreal this weekend. It was great to see so many people in-person. And how about that weather?!?!  Count me as a fan of an April/May Thaw!

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

Honor Roll

  • Karen Allen, Karen Allen Law
  • Evan Barquist, Montroll Oettinger Barquist
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, University of Illinois at Chicago Law
  • Corinne Deering, Paul Frank + Collins
  • Benjamin Gould, Paul Frank + Collins
  • Robert Grundstein
  • Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
  • Jeanne Kennedy, JB Kennedy Associates, Mother of the Blogger
  • John T. Leddy, McNeil Leddy & Sheahan
  • Tom Little, Little & Cicchetti
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
  • Herb Ogden, Esq.
  • Margaret Olnek, Divorce Coach, Assistant Professor, Vermont Law School
  • Jonathan Teller-Elsberg, Sheehey Furlong & Behm
  • Jason Warfield, J.D.
  • Thomas Wilkson, Jr., Cozen & O’Connor

ANSWERS

Question 1

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

  • A.  Lawyer’s representation of a former client.
  • B.  Lawyer’s current representation of another client.
  • C.  a personal interest of Lawyer’s. V.R.Pr.C. 1.10(a)
  • D.  trick question. In VT, all conflicts are imputed to others in the same firm.

Question 2

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

  • A. Yes, but only if the payor is related to the client.
  • B. Yes, but only if the payor is the client’s insurance company or employer.
  • C.  Yes, if the client gives informed consent, the payor doesn’t interfere with the lawyer-client relationship, and information relating to the representation of the client is not disclosed to the payor except as authorized by the rule on client confidences. V.R.Pr.C. 1.8(f).
  • D.  A & B.

Question 3

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

  • A.  must disclose client’s intention.
  • B.  must not disclose the client’s intention.
  • C.  may disclose the client’s intention. V.R.Pr.C. 1.6(c); See, Cmt. [10].
  • D.  It depends on how old the client is.

Question 4

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

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

  • A.  a minor.
  • B.  an organization. V.R.Pr.C. 1.9, Cmt. [3].
  • C.  deceased.
  • D.  represented by a law firm that once employed Lawyer.

Question 5

The Thaw is on my mind.

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

Englih Lawyer

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

Rake

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

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

A wig that English barristers wear in court.  Perukes are no longer worn in court in Canada.

Monday Morning Honors #251

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

Honor Roll

  • Evan Barquist, Montroll Oettinger Barquist
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, University of Illinois at Chicago Law
  • Andrew Delaney, Martin Delaney & Ricci
  • Robert Grundstein
  • Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
  • Nicole Killoran, Professor, Vermont Law School
  • John T. Leddy, McNeil Leddy & Sheahan
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
  • Honorable John Valente, Vermont Superior Judge
  • Jason Warfield, J.D.

 ANSWERS

Question 1

Lawyer called me with an inquiry.  I listened, then responded: “Maybe.  Does it arise from your relationship with a current or former client? Or does it arise from a personal interest of yours?

In my response, what is “it?”

It is a conflict of interest.  My response to the inquiry refers to imputed conflicts.  See, Rule 1.10 – Imputation of Conflicts of Interest – General Rule.

Question 2

 By rule, a lawyer who has direct supervisory authority over a nonlawyer ___________:

  • A.  will be sanctioned if the nonlawyer does something that would violate the rules if done by the lawyer.
  • B.  is not professionally liable for the conduct of the nonlawyer.
  • C.  shall make reasonable efforts to ensure that the person’s conduct is compatible with the lawyer’s professional obligations.  Rule 5.3 – Responsibilites Regarding Nonlawyer Assistants.
  • D.  None of the above.  While there is a rule that applies to a lawyer’s supervision of other lawyers, there is no rule that applies to a lawyer’s supervision of nonlawyers.

Question 3

There’s a rule that prohibits a lawyer from making false or misleading communications about the lawyer or the lawyer’s services.

Does the rule prohibit truthful statements that are misleading?

Yes.  It’s rule Rule 7.1 – Communications Concerning a Lawyer’s Services It states that a “communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.”  Per Comment [2], “truthful statements that are misleading are also prohibited by this rule.”  The comment goes on to describe truthful statements that violate the rule.

Question 4

What do the Rules of Professional Conduct define as “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”

Informed Consent. Rule 1.0 – Terminology

Question 5

Season 6 of Better Call Saul debuts on Monday. I can’t wait. It’s one of my favorite shows of all-time and I am so looking forward to the final season.

For those who don’t know, the lead character, “Saul Goodman,” is an attorney who often finds himself on the wrong side of the Rules of Professional Conduct. In addition, in both Better Call Saul and Breaking Bad, Saul often mentions (complains of) his bad knees.

According to the show’s writers, Saul’s needs are so bad because of antics he engaged in well before changing his name to Saul Goodman.  Indeed, those antics resulted in a nickname associated with his real name.

What’s Saul Goodman’s real name?

And, bonus, what’s the antic-driven nickname that explains his bad knees?

James M. McGill.  Slippin’ Jimmy.

8u2S

Five for Friday #251

Welcome to a glorious Friday morning and the 251st legal ethics quiz!

I botched it this week.  This would’ve been the perfect intro to write about the iconic 251 Club of Vermont.  Alas, it wasn’t until about 8:30 this morning that I realized I should’ve made this post about a member of Vermont’s legal community who’d visited all 251 cities and towns.  In other words, I completely failed to comply with my duty of diligence.  So, for now, if you or someone you know is a verified 251er, let me know and I’ll interview you for a Wellness Wednesday post.

Instead, today, I’ll leave you with this.

A few days ago, I bumped into two of Papa’s daughters, Mary and Helen-Anne.  We attended an event at which my mom won an award. (Yay Mom!)  Helen-Anne is my mom’s youngest sister and an avid fan of this blog.  What can I say? Good taste runs in the family.

Anyhow, when we saw each other, I was wearing this tie:

IMG_6783

Aunt Mary commented on it first.  Then, AHAB (their maiden name is “Bonneau’ so my brother and I call Aunt Helen-Anne “AHAB”) grabbed my tie and asked how many diamonds are on it.  At first, I was baffled and thought it was yet another example of behavior by his children that my brother and I believe must’ve left Papa perpetually shaking his head in exasperation.  AHAB continued with something like “maybe the total is a number that you could TIE to the quiz number! Get it??? Tie to the quiz number??”

I confess. I must give credit where credit is due.

But first, and backing up a bit, when I was 6 and my brother 4, our parents took us to Virginia Beach for vacation.  I don’t remember whether AHAB was a high school senior or in her first year at UVM, but she tagged along.  One day, while tasked with babysitting us in the hotel, AHAB lost my brother. Yes, lost him.  She let him get on an elevator and then literally stood watching as the doors shut and it went wherever it went.  For all I know, the kid we found and brought back to Vermont isn’t really Patrick.

Many years later, AHAB lived just outside Boston during the 3 semesters that I attended Boston College.  I often stopped by to visit, serving as a much more responsible babysitter for my cousins than their mother had been for Patrick.  My thanks?  One night, AHAB tried to poison me with Bailey’s Irish Cream!

Now, returning to the tie: I’ve not counted the diamonds. Maybe there are about 251, or maybe there are 51 or 551.  Who knows? And, indeed, the total might be the perfect tie” to a future quiz number.  In fact, I’ve used far looser “ties.”

Therefore, AHAB, thank you!  Your clever and witty remark has earned you full and final forgiveness for the aforementioned (and all your other) transgressions!

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

Hint:  The 7 Cs of Legal Ethics.

Lawyer called me with an inquiry.  I listened, then responded: “Maybe.  Does it arise from your relationship with a current or former client? Or does it arise from a personal interest of yours?

In my response, what is “it?”

 Question 2

 By rule, a lawyer who has direct supervisory authority over a nonlawyer ___________:

  • A.  will be sanctioned if the nonlawyer does something that would violate the rules if done by the lawyer.
  • B.  cannot be held professionally liable for the nonlawyer’s misconduct.
  • C.  shall make reasonable efforts to ensure that the person’s conduct is compatible with the lawyer’s professional obligations.
  • D.  None of the above.  While there is a rule that applies to a lawyer’s supervision of other lawyers, there is no rule that applies to a lawyer’s supervision of nonlawyers.

Question 3

There’s a rule that prohibits a lawyer from making false or misleading communications about the lawyer or the lawyer’s services.

Does the rule prohibit truthful statements that are misleading?

Question 4

What do the Rules of Professional Conduct define as “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”

Question 5

Season 6 of Better Call Saul debuts on Monday. I can’t wait. It’s one of my favorite shows of all-time and I am so looking forward to the final season.

For those who don’t know, the lead character, “Saul Goodman,” is an attorney who often finds himself on the wrong side of the Rules of Professional Conduct. In addition, in both Better Call Saul and Breaking Bad, Saul often mentions (complains of) his bad knees.

According to the show’s writers, Saul’s needs are so bad because of antics he engaged in well before changing his name to Saul Goodman.  Indeed, those antics resulted in a nickname associated with his real name.  (He didn’t become “Saul Goodman” until the last episode of Season 4).

What’s Saul Goodman’s real name?

And, bonus, what’s the antic-driven nickname that explains his bad knees?

the-quiz