Five for Friday #226

Welcome to the 226th #fiveforfriday legal ethics quiz!

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

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

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

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

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

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

Here’s how.

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

Onto the quiz!

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

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

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

Question 1

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

It’s most likely that Matter 1:

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

Question 2

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

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

Question 3

At a CLE, I said:

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

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

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

Question 4

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

What did Attorney receive?

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

Question 5

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

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

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

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

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

Monday Morning Answers #223

Beware the Ides of March.

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

Honor Roll

  • Karen Allen, Karen Allen Law
  • Evan Barquist, Montroll, Backus & Oettinger
  • Janis Levart Barquist
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor of Law, University of Illinois at Chicago, John Marshall School of Law
  • Leslie Black, Govoni & Black; President, Lamoille County Bar Association
  • Andrew DelaneyMartin, Delaney & Ricci Law Group
  • Erin Gilmore, Ryan Smith & Carbine
  • Robert Grundstein
  • Jeanne Kennedy, JB Kennedy Associates; Mother of the Blogger
  • Nicole KilloranProfessor, Vermont Law School
  • Elizabeth KruskaPresident, Vermont Bar Association Board of Managers
  • John Leddy, McNeil Leddy & Sheahan
  • Pam Marsh, Marsh and Wagner
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeffrey Messina, Bergeron, Paradis & Fitzpatrick
  • Hal Miller, Hawaii Agency State Counsel, First American Title Insurance
  • Herb Ogden, Esq.
  • Keith Roberts, Darby Kolter & Nordle
  • Jim Runcie, Ouimette & Runcie
  • Jay Spitzen, Esq.
  • Jonathan Teller-ElsbergHershenson, Carter, Scott & McGee
  • Jay Spitzen, Esq.
  • The Honorable John Valente, Vermont Superior Judge
  • Jason Warfield, Applicant for Admission to the Vermont Bar
  • Thomas WilkinsonCozen O’Connor

 Answers

Question 1

A client’s failure to abide by the terms of a fee agreement:

  • A.  is not grounds for a lawyer to move to withdraw.
  • B. mandates that the lawyer move to withdraw.
  • C. permits the lawyer to move to withdraw. See, V.R.Pr.C. 1.6(b)(5) and Comment [8].  The rule requires the lawyer to give the client reasonable warning that the lawyer will move withdraw if the bill is not satisfied.
  • D. automatically excuses the lawyer from delivering the file.

 Question 2

Lawyer called me with an inquiry.  My response included the following words and phrases: “knowledge,” “violation,” “substantial question,”  and “honesty, trustworthiness, fitness.”

It’s most likely that Lawyer called to discuss whether to _________

  • A. inform the court that a client had testified falsely in a civil matter.
  • B. inform the court that a criminal defense client had testified falsely.
  • C. withdraw from representing a client.
  • D. report another lawyer’s misconduct.  The words and phrases are in V.R.Pr.C. 8.3(a).

 Question 3

Lawyer called me with an inquiry. I replied “here’s the rule: don’t state or imply that you’re disinterested.  If the person misunderstands your role, correct the misunderstanding.  If the person’s interests are likely to conflict with your client’s, don’t give the person any legal advice other than the advice to secure counsel.”  Given my response, the person is most likely:

  • A. Suffering from a diminished capacity.
  • B.  Lawyer’s client’s spouse.
  • C. Paying for Lawyer to represent Lawyer’s client.
  • D. Unrepresented.  My reply tracks V.R.Pr.C. 4.3.

Question 4

Fill in the blank.  Hint: it’s 2 words.

Several rules require a lawyer to receive ___________   _________.   The rules define ________ _______ as “an 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.  V.R.Pr.C. 1.0(e).

Question 5

March 12, 1894, marked the first day that a specific product was ever sold in a bottle.  The product remains well-known to this very day.   In 1888, Asa Candler developed the recipe for the product and owned its rights.  Candler lived in Atlanta.

In 1899, Candler sold the bottling rights to the product to Benjamin Thomas and Joseph Whitehead.  Whitehead was a lawyer.  Apparently, he was also a good businessman. The contract he negotiated required he and Thomas to pay only $1 and left them with the bottling rights forever.  Supposedly, he and Thomas never paid Candler the $1.

I have no idea if Candler was represented in the transaction or if Whitehead took unfair advantage of an unrepresented person.

Name the product.

Coca-Cola.

coke bottle

 

Five for Friday #223: Judge Peter Hall.

Welcome to Friday and the 223rd legal ethics quiz.

Today, I urge readers to pause for a moment and remember Peter Hall.  Judge Hall passed away yesterday morning.  The Rutland Herald has the story here.

I first met Judge Hall when he was in private practice in Rutland. At the time, I was a young attorney and new to my role as the deputy disciplinary prosecutor.  Back then, Judge Hall’s practice included representing lawyers under disciplinary investigation & prosecution.

I will be forever grateful for the opportunity to have had Judge Hall as opposing counsel.  Unsure how to act while investigating and prosecuting fellow lawyers, I expected I’d have to be aggressive and antagonistic.  Judge Hall helped me to learn that effective advocacy requires no such thing.  By example, he showed me how to do my job without being a jerk and proved to me that every single one of us can do the same.  In retrospect, Judge Hall’s civility, grace, and temperment make referring to him as “opposing” counsel feel inappropriate.

An exceedingly effective advocate for his clients, Judge Hall’s approach to practice will always remind me of Aesop’s Fable of The North Wind and The Sun.   To me, the moral of having had the privilege to work with Judge Hall is that, even in the law,

“Gentleness and kind persuasion win where force and bluster fail.”

Like his friend Joan Wing, Judge Hall influenced my development as a lawyer and, later, guided my decision to run for a seat on the Vermont Bar Association’s Board of Managers. Reflecting today, I’m sad that two titans of the bar who so positively affected me (and many others) are no longer with us.

Lately, I’ve often noted my concern at the rise of incivility in the profession. As the Herald article notes, during his tenure on the Board of Managers, Judge Hall was instrumental in the VBA’s development and adoption of Guidelines of Professional Courtesy.  We’d all be well-served to review them. Not only today, but as often as possible. To honor Judge Hall, we’d be even better served to follow his lead and practice what he preached.

The Guidelines:

  • In fulfilling his or her primary duty to the client, a lawyer must be ever conscious of the broader duty to the legal system.
  • A lawyer should act with candor, diligence and utmost respect.
  • A lawyer should act with courtesy and cooperation, which are necessary for the efficient administration of our system of laws.
  • A lawyer should act with personal dignity and professional integrity.
  • Lawyers should treat each other, their clients, the opposing parties, the courts, and members of the public with courtesy and civility and conduct themselves in a professional manner at all times.
  • A client has no right to demand that counsel abuse the opposite party or indulge in offensive conduct. A lawyer shall always treat adverse witnesses and parties with fairness and due consideration.
  • In adversary proceedings, clients are litigants and though ill feelings may exist between clients, such ill feelings should not influence a lawyer’s conduct, attitude, or demeanor towards opposing lawyers.
  • A lawyer should not harass opposing counsel or counsel’s clients.
  • Lawyers should be punctual in communications with others and in honoring scheduled appearances. Neglect and tardiness are demeaning to fellow lawyers and to the legal system.
  • If a fellow attorney makes a just request for cooperation, or seeks scheduling accommodation, a lawyer shall not arbitrarily or unreasonably withhold consent.
  • Effective advocacy does not require antagonistic or obnoxious behavior. Lawyers should adhere to the higher standard of conduct which judges, fellow attorneys, clients, and the public may rightfully expect.

 To Judge Hall.

peter-hall-610x407

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

 Question 1

A client’s failure to abide by the terms of a fee agreement:

  •  A,  is not grounds for a lawyer to move to withdraw.
  •  B.  permits the lawyer to move to withdraw.
  •  C.  relives the lawyer of any obligation to continue working on the client’s matter..
  •  D. automatically excuses the lawyer from delivering the file.

 Question 2

Lawyer called me with an inquiry.  My response included the following words and phrases: “knowledge,” “violation,”  “substantial question,”  and “honesty, trustworthiness, fitness.”

It’s most likely that Lawyer called to discuss whether to _________

  • A.  inform the court that a client had testified falsely in a civil matter.
  • B.  inform the court that a criminal defense client had testified falsely.
  • C.  withdraw from representing a client.
  • D.  report another lawyer’s misconduct.

Question 3

Lawyer called me with an inquiry. I replied “here’s the rule: don’t state or imply that you’re disinterested.  If the person misunderstands your role, correct the misunderstanding.  If the person’s interests are likely to conflict with your client’s, don’t give the person any legal advice other than the advice to secure counsel.”  Given my response, the person is most likely:

  • A.  Suffering from a diminished capacity.
  • B.  Lawyer’s client’s spouse.
  • C.  Paying for Lawyer to represent Lawyer’s client.
  • D.  Unrepresented.

Question 4

Fill in the blank.  Hint: it’s 2 words.

Several rules require a lawyer to receive ___________   _________.   The rules define ________ _______ as “an 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

March 12, 1894, marked the first day that a specific product was ever sold in a bottle. Asa Candler had developed the recipe for the product and owned its rights.  Candler lived in Atlanta.

In 1899, Candler sold the bottling rights to the product to Benjamin Thomas and Joseph Whitehead.  Whitehead was a lawyer.  Apparently, he was also a good businessman. The contract he negotiated required he and Thomas to pay only $1 and left them with the bottling rights forever.  Supposedly, he and Thomas never paid Candler the $1.

I have no idea if Candler was represented in the transaction or if Whitehead took unfair advantage of an unrepresented person.

The product remains well-known to this very day.  Name the product.

Five for Friday #222

Welcome to Friday and the 222nd quiz!

I’m fascinated by repeating numbers.  I appreciate them much more than I do the repetitive nature of daily life.  “222” will always interest me more than “it’s Tuesday again.”

Yesterday, I ran at lunch.  Not too far into my run, I spotted a person walking about a block ahead of me. The person was bundled up against the cold, so all I could see was the person’s coat.  It looked so familiar.  A moment later, it hit me: that’s the woman who I often pass on Cherry Street at lunch! The one who works at the church next to my office!  I haven’t seen her in forever.  I’ll say hi!

Alas, it wasn’t her.  In fact, there was no reasonable probability that it would have been.

Pre-COVID, I often walked around Burlington at lunch.  Inevitably, I’d pass the woman in the long, dark blue down coat that she seemed to wear no matter the temperature.  I’d guess we’ve nodded “hello” for nigh on 4 or 5 years now.  I don’t know her name or much about her, just that’s she works in the church that’s next to my office and walks at lunch.  Seeing each other was as routine as going to work.

So, why do I say that there was no reasonable probability that the person I spotted yesterday was her?

Because I work at home these days.  Yesterday’s run was from my house, 6.25 miles from my office and the only place I’ve ever seen the woman in my life.  Still, when I passed, I checked.  It wasn’t her.

As I’d started the run, I’d planned to use the time to think of a way to tie “222” to this introduction.  I anticipated that it’d involve something to do with my fascination with repeating numbers. Seeing the person in the coat changed my thinking.

Over the years, I’ve never been particularly interested in passing the woman at lunch.  I confess, there were times I’d see her coming and veer down a side street or start checking my phone.  Anything not to have to nod “hello” to a stranger for the nth day in a row.  The repetitive nature of our brief encounters inexplicably feeling like a burden I couldn’t possibly bear for the 2 seconds it took to acknowledge each other yet again.

Which is why I was so surprised at the sudden burst of happiness when I noticed the familiar coat yesterday. For a few seconds, I felt like things were normal again. Then, I wondered how many more people there are who, because of the pandemic, I no longer encounter, however briefly and wordlessly, on a regular basis.  The people who we don’t know and who we’d not consciously consider part of our lives, but who, we now realize, are.

Sure, there’s something intriguing about numbers and their patterns, an intrigue sapped from the repetitive patterns of the day-to-day grind.  Still, maybe when this ends, I’ll be more appreciative of the value of life’s mundane encounters.

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

 Question 1

There’s a rule that includes a “self-defense” exception for lawyers.  But for the exception, what does the rule generally prohibit?

  • A.  Making a material misrepresentation of fact to a third person.
  • B.  Representing a “close relative” in a criminal matter.
  • C.  The unauthorized disclosure of confidential information.
  • D.  Unauthorized disbursements from trust.

 Question 2

Lawyer called me with an inquiry.  I listened, then said: “it depends, assuming the communication was in good faith, did you receive information that could be significantly harmful to that person?”

Given my response, the communication was most likely from:

  • A. a prospective client who conferred with, but did not retain, Lawyer.
  • B. a person who is represented in the matter and who mistakenly emailed Lawyer.
  • C. a person who is not represented in the matter and who mistakenly emailed Lawyer.
  • D. a witness who is scheduled to testify against Lawyer’s client.

Question 3

Which is different than the others?

  • A. Reviewing an adverse witness’s Twitter feed.
  • B. Advising a client to make their Instagram account private.
  • C. Setting up a GoFundMe page to fund the representation of a client.
  • D. Trick question.  Absent more, none is a per se violation of the Rules.

 Question 4

Several rules require a lawyer to obtain a client’s “informed consent, confirmed in writing.”  Which is most accurate?

  •  A. In situations that require a client’s informed consent, a lawyer may not act until the client’s informed consent is confirmed in writing.
  •  B.  If a lawyer has obtained a client’s informed consent, the lawyer may act in reliance on that consent so long as it is confirmed in writing within a reasonable time thereafter.
  •  C. An email does not satisfy the “confirmed in writing” requirement.
  • D.  I object to the premise of the question!  While prudent, not a single rule requires informed consent to be confirmed in writing.

 Question 5

A well-known lawyer passed away this week.  Very early in the lawyer’s career, the lawyer represented college students in the case that resulted in the desegregation of the University of Georgia.  Years later, the lawyer survived an assassination attempt.  The sitting United States President visited the recovering lawyer in the hospital. The President’s visit with the lawyer was the very first story ever reported on CNN cable news.

Name the lawyer.

Five for Friday #184

Happy Friday!

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

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

But you know what that makes me?

A visionary.

Onto the quiz!

Rules

  • None.  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

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

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

Question 2

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

“it’s ok as long as:

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

What is Other’s involvement with this situation?

Question 3

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

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

What’s this 7th “C”?

Question 4

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

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

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

Which is most accurate?

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

Question 5

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

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

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

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

Five for Friday #172

Welcome to #172!

It’s been a while since I’ve been able to tie the quiz number to the intro.  I guess that’s what happens when you get into the 100s.  Yet, the stars aligned today.

I took up running in 2006.  Back then, my goal was to finish one leg of the relay in the Vermont City Marathon.  I accomplished my goal, completing my 5.2 mile leg.

From there, my goals evolved: finish a half-marathon, finish a marathon, qualify for Boston.  All sorts of new challenges that not only drove me, but that fed my love for running.

This year, my running goal is to complete at least one half-marathon in 10 different states or provinces.  On Sunday, I’m running a half-marathon in Rockport, MA.  It’ll be my 6th state.  I’m looking forward to it more than I’ve looked forward to the past few that I’ve run.

The first 3 – Tennessee, Vermont, Indiana – were a ton of fun. The 10-state goal was still new & exciting, and my times improved in each race.

Then, in early June, I hit a lull.  Summer and its amenities distracted me from training as often or as hard.  Yes, I finished half-marathons in Maine and Illinois. Yes, each trip was fantastic.  The races, however, weren’t fun or exciting.  Each was a grind, running just to tick off another state on the slog to 10.  I felt like I was going through the motions. I didn’t love running.

So why do I think Sunday will be different?  Because I’ve added something new to the mix.

I entered what’s called The Triple Threat Challenge:

  • 8:00 AM – 1-mile race
  • 8:30 AM – 5K
  • 9:30 AM – Half Marathon

I’ve never run an event like this.  While it presents a new challenge, Sunday will also bring me back to why I took up running: the challenge of competing against myself to accomplish something that I’ve not done before.

I think it happens to all of us.  Without really noticing it, “fresh and exciting” becomes “the same old, same old.”  Indeed, the me that existed in 2007 never would’ve envisioned being bored during a half marathon or slogging through a run for no other reason than to say I finished.  Rather, I embraced and enjoyed the challenge of finishing.  I look forward to doing so again on Sunday.  The challenge has me excited.

Don’t live life going through the motions. Whatever it is that you don’t enjoy quite as much as you used to, find a way to make it as exciting and challenging as it was when you first started doing it.  That’s part of well-being.

Which reminds me: if you’re a lawyer whose practice has become routine, contact Mary Ashcroft.  Mary is the VBA’s Legal Access Coordinator and will be more than happy to assign you a pro or low bono case that’ll bring you back to what made you excited to be a lawyer in the first place.

Oh, the tie-in to the quiz number?  It’s week 172.  The total miles in the Triple Threat Challenge?

  • 1 mile = 1 mile
  • 5K = 3.1 miles
  • Half Marathon = 13.1 miles

17.2

Onto the quiz!

Rules

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception – but one that is loosely enforced – #5 (“loosely” = “aspirational”)
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

Fill in the blank.  (It’s 1 word).

By rule, a lawyer shall __________ a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Question 2

Attorney called me with an ethics inquiry.  I listed, then said “a comment to the rule makes it clear that the rule doesn’t apply to an organization’s former constituents.”

Given my statement, it is most likely that Attorney called me to discuss the rule that deals with what topic?

Question 3

An attorney called me with an inquiry.  I listened.  To clarify, I asked the following question:

  • “Ok.  I’m not clear.  Will someone other than the person committing the act be harmed?”

Based upon my question, what general ethics topic did the attorney call me to discuss?

Question 4

What am I?

  • I can be a tool to help provide access to legal services for those who might not be able to afford a lawyer.
  • I am specifically authorized by Rules for Family Proceedings and the Rules of Civil Procedure.
  • Per Vermont Rules of Professional Conduct, I am permitted if I am reasonable under the circumstances and the client gives informed consent.

Again, what am I?

Question 5 (and bonus)

Having spent some time at the bar exam this week . . .

In 2002, one of Hollywood’s megastars was nominated for the Golden Globe for Best Actor for his work playing a character named Frank Abergnale, Jr.  The movie also starred Tom Hanks as an FBI agent named Carl.

Here’s an exchange from the movie:

Carl: “How’d you do it Frank? How did you cheat on the bar exam in Louisiana?

Frank: “I didn’t cheat. I studied for two week and I passed.”     

Name the movie and the actor who played Frank.

Five for Friday #170

Welcome to Friday!

I’m in a bit of a blogging hiatus, so I’m ditching the normal intro.  However, two matters deserve mention.

First, today is an important anniversary.  57 years ago tonight, a band played its first concert.  As noted by udiscovermusic, here’s how London’s Jazz News previewed the event:

  • “Mick Jagger, R&B vocalist, is taking an R&B group into the Marquee tomorrow night, while Blues Incorporated do their Jazz Club gig. Called The Rollin’ Stones. The line-up is: Mick Jagger (vocals), Keith Richards & Elmo Lewis (guitars), Dick Taylor (bass), Ian Stewart (piano), & Mick Avory (drums).”

I mention this because no blog I’ve posted generated more controversy than this one in which I expressed my preference for the Stones over The Beatles.

Second, an even more important anniversary took place two days ago: the anniversary of my mom’s birth!  She’s a regular member of the Five for Friday Honor Roll.  My blog about her life is here.  Happy birthday Mom!

PS:  my mom’s sons will officially mark her birthday at brunch this Sunday morning.  Some might call us too lazy to have gotten our act together in time for her birthday.  However, others might long for friends & family who, like Patrick and I, stretch others’ birthdays into week-long celebrations.

Onto the quiz!

the-quiz

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception – but one that is loosely enforced – #5 (“loosely” = “aspirational”)
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

How long must a lawyer keep records of funds that belonged to clients or third persons and that the lawyer held in connection with a representation?

  • A.   6 years from the termination of the representation.
  • B.   The rules are silent on this issue.

Question 2

The following are exceptions to a particular rule.

  • to establish a claim or defense in a controversy between the lawyer and client;
  • to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved; or,
  • to respond to allegations in any proceeding concerning the lawyer’s representation of the client.

Generally, what does the rule prohibit?

Question 3

Lawyer represents Client.   Lawyer calls Witness to testify.   Witness completed his testimony and the court recessed for the day.  Preparing for the next day of trial, Lawyer comes to realize that Witness offered material evidence that was false.

Which is most accurate?

  • A.   Lawyer must take reasonable remedial measures.
  • B.   Lawyer need not correct the record since it was Witness and not Client.
  • C.   Lawyer’s duties are different depending on whether the case is criminal or civil.
  • D.  Lawyer must withdraw.

Question 4

Lawyer called me with an inquiry.  I listened, then said, “it’s okay as long as it does not imply a connection with a government agency or public or charitable legal services organization and is not otherwise false or misleading.”

What did Lawyer call to discuss?

  • A.    Using a trade name as a firm name.
  • B.    Organizing a pro bono clinic staffed by volunteer lawyers.
  • C.    Using an undercover investigator.
  • D.   Conflicts of interest that arise when moving to & from government practice.

Question 5

As readers know, I’m a huge proponent of attorney well-being and finding interests outside the law.  For me, I love running.

Earlier this week, an assistant public defender had to undergo emergency surgery after suffering a serious injury while taking a selfie as he participated in a famous “running” event.  Here’s what one of his co-workers said to the press:

  • “As an office we encourage our employees to pursue outside interests and explore their passions.  For many it’s traveling, and we think such pursuits are critical to the general wellness of our entire . We are relieved the incident was not more serious and we are looking forward to [the lawyer’s] return.”

Name the “running” event that the lawyer was participating in when he was injured.

 

 

Five for Friday #168

Welcome to #168!

Before we get started, here’s something regular readers will understand: I got the bins right this week! And I didn’t even have to check my new calendar.

So . . .

. . . on New Year’s Day I boldly announced on Facebook and Instagram that, in 2019, I’d run at least 10 half marathons in 10 different states or provinces.  New Year’s Eve has long tended to leave me confusing “bad idea” with “bold plan.”  A few things I forgot to factor into the equation? Travel and lodging.

Fortunately, my dad is vacationing in Boothbay Harbor this week.  It’s fortunate because  tomorrow is the Old Port Half in Portland.  So, as soon as I post today’s quiz, I’m heading to Maine.  Not so much to visit my dad – no offense dad – but to take advantage of the free (to me) room, run tomorrow’s half marathon, and tick off another state on my quest for 10.

Son of the Year!

Anyhow, in addition to being ready to hit the road, I’m fresh out of ideas.  So, I almost posted today’s quiz sans this intro. But, in a burst of effort meant to give the people what they likely scroll right past, I googled “168 legal ethics.”  What I found nearly made my spit out my coffee in laughter.

I found this.  It’s an advisory ethics opinion that was issued in Texas in 1958.  The summary:

“It is improper for an attorney to send Christmas cards to his clients which indicate that he is an attorney at law either on the cards or their envelopes.”

And, the opinion itself:

  • The sending of Christmas cards with the language ‘Attorney at Law’ and ‘Attorney at Law, 1137 Big Building, City, Texas’ or of a card without such language in an envelope which shows a return address reading. ‘John Doe, Attorney at Law, 1137 Big Building, City, Texas’ violates Canon 24 of the Canons of Ethics of the State Bar. If the Christmas cards and the envelope merely stated the name of the sender without any reference to his being an attorney, the sending thereof would not violate the Canons of Ethics of the State Bar. (9-0).'”

Not a single dissent!  I’ll give them this: at least their opinions were brief.

The brevity, however, leaves me unclear as to the reasoning.  I assume it wasn’t necessarily “Christmas cards,” but any card, whether birthday, graduation, or get well.  Also, I’m  aware that, back then, advertising was frowned upon.  We’re a noble profession!  But cards to your own clients????  Come on!  And, it’d be okay if you remove any reference to being an attorney???  Huh?

It makes me laugh.  Yet, at the same time, it makes me wonder.

In legal ethics, what are we requiring, prohibiting, or allowing that, years from now, will make the profession scratch its collective head?  Something.  Because that’s how life works: we look back and wonder “what the hell were they thinking?”  Often, we’re right to wonder.

I used to tell my players that once we stop looking for ways to get better, we stop getting better.  Both as players and as a team.

It’s the same with legal ethics.  Actually, it’s the same with life.

It’s likely that every single one of us is doing something today that, years from now, we’ll wonder why we ever did it this way.  Whether as lawyers, judges, bar associations or courts.  Whether as friends or family members. Whether in athletics, law, or interpersonal relationships.

Self-reflection and introspection are personal and professional responsibilities.  Let’s resolve always to work to improve.

Oh – you lawyers & firms who send me holiday cards? Keep it up! They brighten up an otherwise drab office.

Onto the quiz!

Rules

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

What is the quoted language more commonly known as?

  • “a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibility to another client, a former client or a third person . . .”

Question 2

Someone Other Than Client (“SOTC”) is paying Lawyer to represent Client. Which is most accurate?

With respect to information related to the representation of Client, Lawyer

  • A.  may disclose to SOTC without Client’s consent;
  • B.  must disclose to SOTC even over Client’s objection;
  • C.  may not disclose to SOTC without Client’s consent or unless disclosure is otherwise authorized by the rules.
  • D.  None of the above.

Question 3

Confidences. Competence.  Conflicts.  Candor.  Communication. Civility.

There’s another word that begins with “C” that is a serious violation of the rules. However, the word doesn’t appear in any of the rules, notable in its absence from the trust accounting rules and the rule on safekeeping client property.

What’s the word?

Question 4

Former Client sued Lawyer for malpractice.  Lawyer had represented Former Client in a divorce.  Attorney represented Former Client in the malpractice action.

Attorney proposed a settlement.  Lawyer accepted. The settlement included a provision that Lawyer will not represent clients in divorces for 5 years.

Did either Attorney or Lawyer violate the rules?

  • A.  Yes, Lawyer’s malpractice in the divorce is a per se violation.
  • B.   Yes, Attorney violated the rules by making the offer.
  • C.   Yes, Attorney and Lawyer violated the rules by making and accepting the offer.
  • D.  A and B.

Question 5

Increase Mather was born on this day in 1639. Apropos of my intro, many of Mather’s beliefs wouldn’t be acceptable in today’s society.

Yet, one likely stands the test of time.  In his work “Cases of Conscience,” Mather referred to the so-called “Blackstone Ratio,” the idea that it’s better that 10 guilty persons go free than 1 innocent person be punished.

What notorious legal event prompted Mather to write Cases of Conscience?

 

Five for Friday #166

Last weekend, I briefly thought that the 166th #fiveforfriday column would fall on 6/6.  It didn’t, but close enough.

D-Day always reminds me of Cleland Selby.  Mr. Selby was my 6th grade Language Arts teacher.  That year, I wrote a paper about the Allied invasion of Normandy.

Until this morning – more on that later – I didn’t remember much about the paper other than the topic. However, I’ve always remembered how much Mr. Selby helped me.

I struggled with the assignment.  I did so much research that I was overloaded with information. Overwhelmed and unable to narrow my focus, I went to Mr. Selby for help.  His response made a difference in my life.

Mr. Selby gave me a pile of 3 x 5 index cards.  He told me to write one – and only one – fact or thought about D-Day on each card.  I did.

Next, he told me to arrange the cards in an order that made sense.  I did.

Then, Mr. Selby told me that was my paper.  All I had to do was write the thoughts in the order I’d arranged them.  He was right. More importantly, his advice turned into a life lesson.

I teach a lot of CLEs during June.  I’ve already done two this week, have two more later today, and four more next week.  Different presentations at each, 12 hours total.  Last week and early this week, I felt overwhelmed trying to prepare.  Then, I remembered Mr. Selby.

I opened a power point and, on the first slide, I typed one thing I wanted to say at the first seminar.  Next slide, another thing.  One slide, one thought at a time.  My focus shifted from anxiety about the amount of work – “I’ll never get this done!” “too many presentations!” They’re gonna be terrible!” – to the work itself.  Abiding by Mr. Selby’s advice to move one thought at a time, stress melted, focus restored, and the work got done.

And isn’t that all we can do whenever overwhelmed or facing a challenge?  Deep breath, first things first, one thing at a time.

Whatever is overwhelming or challenging you today, don’t get lost in how daunting the effort will be.  Rather, whatever your version of an index card, note one thing that you can do.  Then, do it.  Even one step will help. Keep taking steps.

I have no idea where Mr. Selby is today, or if he’s even alive.  No matter, thank you Mr. Selby! The paper you helped me to organize doesn’t matter much.  But, the larger lesson you instilled in the process made a big difference in my life.

Now, before I get to the quiz, this morning, I dug through one of the many boxes of stuff that my mom saved from when we were young.  I kid you not, I found a folder of 6th grade schoolwork, including the D-Day paper!

I had it my head that I wrote about Eisenhower and his brilliant strategy.  Nope. I wrote it from the perspective of the German high command’s belief that the invasion would come at Calais.

Here’s the cover:

IMG_2776

Look at the all the mark-ups, Mr. Selby worked hard!

IMG_2767

And look what I gave him in return when he asked me to expand upon my conclusion:

IMG_2777

Also, not sure why I went to law school with such mad skills in math & science:

IMG_2752

IMG_2779

My social studies project on the Maritime Provinces reveals less skill at map-making.

IMG_2753 (1)

Onto the quiz!

Rules

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception – but one that is loosely enforced – #5 (“loosely” = “aspirational”)
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

True of false.

For the purposes of the rule that prohibits conduct that is degrading or disruptive to a tribunal, a deposition is not a tribunal.

Question 2

The following are exceptions to the general prohibition against what?

  • to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and client;
  • to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved;
  • to respond to allegations in any proceeding concerning the lawyer’s representation of the client.

Question 3

Only 1 is correct.  Which?

By rule, a lawyer shall:

  • A.   maintain copies of advertisements for 2 years;
  • B.   maintain a copy of the client’s file for 7 years following delivery thereof;
  • C.   maintain trust account records for 6 years following the termination of the representation.
  • D.    Trick question.  Each statement is correct.

Question 4

There’s a rule that prohibits a lawyer from assisting a client in conduct that the lawyer knows is criminal or fraudulent. A few years ago, the Supreme Court promulgated a Comment to the rule to make it clear that a lawyer does not violate the rule by advising clients on matters that are legal under a set of Vermont’s state laws that apply to a specific product/industry.

What is the product/industry?

Question 5

Robert H. Jackson was an associate justice on the United States Supreme Court from 1941 to 1954.  Prior to his appoint, he served both as United States Solicitor General and United States Attorney General.  He is the only person ever to have held all 3 offices.

In 1945, Jackson took a leave from the US Supreme Court.  He did so after accepting an appointment from President Truman to serve as a special prosecutor.

Identify the proceeding at which Jackson served as a special prosecutor while on leave from the United States Supreme Court.

Five for Friday #165

Welcome to Friday!

With Memorial Day in the rearview, I took a drive today.  Time to emancipate.

Whoops…wrong blog.

What I meant to say is that with Memorial Day in the rearview, I intended to use today’s intro to remind you that, while not even here yet, summer will be over before we know it.  I expected to remind you to make time to enjoy it.

Honestly, I hope summer provides you with time for family, friends, and relaxation.  The things that matter.  But, through personal experiences, I want to share some caveats.

First, if summer isn’t your thing, that’s fine!  As I mentioned in Reach Out, Check Inspring & summer are exceedingly difficult for many.  Far less serious, but still to my point, I’m reminded of Kenny.

I love Kenny. Awesome dude.  He claims to be my cousin – we aren’t – but that’s a story for another day.  Kenny LOVES to ski.  He had more than 100 days on the slopes this past season.  Skiing – and winter – is his wellness.   Summer?  He works about 100 hours a week at a golf course.  Hard, hot, dirty work, but work that frees up his winters.  The fact that I’d prefer just the opposite doesn’t mean that Kenny is wrong or unwell.  It means he’s true to himself.

I’m a creature of summer.  Kenny is a creature of winter.  Both are ok.  Be you.

Second, don’t judge your summer by others’.  Here’s something that the Wisconsin Lawyer Assistance Program posted to Instagram a few days ago:

WISLAP

For the next few months, pictures of friends & colleagues having what appear to be grand ol’ summers will clog your social media feeds.  Don’t be jealous.  Don’t hope that they’re not having as much fun as it looks.  Most importantly, don’t consider their posts a reflection on you and your life.   I deal with this often with someone close to me. It makes zero sense – and is unhealthy – to compare your life to someone else’s digital moment that may or may not reflect reality.

Next, do what you want, not what you think others will approve of.

For many summers, I told myself I had to spend a week in either Maine or on the Cape.  After all, that’s what everyone else does.

I never did.  Often, just thinking about NOT doing what others had done caused me stress and anxiety.  I’d wonder what was wrong with me.  Why hadn’t I booked a week on the coast?  The stress of finding the idyllic summer getaway always ended in me never getting away, stuck in a Labor Day funk beating myself up over another wasted summer.

No more.  Last summer, I didn’t even consider a formal “vacation” somewhere out of state. Instead, I decided that every weekend, I’d drive somewhere in Vermont and go for a long run.

I loved it.  Every part of it.  I loved being on the road early: sunroof open, coffee in the console, tunes blaring.  I loved the runs – seeing parts of the state that I’d never otherwise see. I loved my post-run swims in lakes, ponds, and rivers.  I loved my post-swim-post-run stops at local breweries.  Most of all, I loved being back home that night.  On my deck, grill fired up, those local brews in a chilled glass.

Is that for everyone?  No.  But it’s what’s good for me.  Do what’s good for you. Not what you think others will “like” as good for you.

My final point is this: if you have something “big” planned this summer, enjoy the other moments too. I’ve often found myself so wrapped up in the anticipation of a future event – say a race or a trip – that I forget to make time to enjoy life as it happens along the way.

For instance, in July, my brother and I are going to Chicago for a half marathon and a Cubs game. It’s going to be great.  But it’s almost 2 months away!

I resolve not to get so focused on a late-July weekend as to lose sight of all the weekends to enjoy between now and then.  You know, life’s a journey, not a destination.  Or, maybe what I’m saying is that rather than carving out a week of time for things that matter, I’m going to make a habit of making time for things that matter.  And it’s not just the big things that matter.

Well-being isn’t one size fits all.  However, aspects of it apply to each of us:

  • Be you.
  • Don’t compare yourself to others.
  • Do what works.
  • Make it a habit, one that doesn’t lose sight of the “small” things that matter.

Onto the quiz!

Rules

  •  Open book, open search engine, text/phone/email-a-friend.
  • Exception – but one that is loosely enforced – #5 (“loosely” = “aspirational”)
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

 Except as permitted or required by other rules, a lawyer shall not use information relating to the representation of a client to the disadvantage of the client:

  • A.  True and that’s end of it, there are no exceptions.
  • B.   Unless the client gives informed consent.

Question 2

 True or False.

If one of the Rules of Professional Conduct requires a “writing,” an email complies with the rule.

Question 3

Attorney called me with an inquiry. I listened, then said:

  • “the first thing that the rule requires is that you not state or imply that you’re disinterested.”

Given my response, it’s most likely that Attorney called to discuss the rule on:

  • A.  Candor to a tribunal
  • B.   Trial publicity
  • C.   Dealing with an Unrepresented Person
  • D.   Pro Bono work

Question 4

Lawyer represents Plaintiff in a civil case.  Trial is scheduled to being Monday.

Lawyer called me this morning.  Lawyer told me that, yesterday, Lawyer learned that Witness intends to lie for Plaintiff.

Which is most accurate Vermont’s rule?

  • A.  Lawyer must explain to Plaintiff the risks of providing false evidence, then abide by Plaintiff’s informed decision whether to call Witness.
  • B.   Lawyer may refuse to call Witness if Lawyer reasonably believes that the evidence Witness will offer is false.
  • C.   Lawyer may call Witness, but not ask any questions. Witness must testify in the narrative.
  • D.   Lawyer must withdraw.

Question 5

Lawyer called.  Lawyer told me that Lawyer had been asked to get involved in a matter involving Person.   Lawyer explained that Lawyer had previously belonged to a country club owned by Person’s business.  Lawyer said that Lawyer’s family resigned their membership and asked for a refund of the membership deposit.  The club did not refund the deposit, but placed Lawyer’s family on a wait list to be refunded on a “first resigned/first refunded” basis.  As tends to happen no matter who owns these clubs, no refund has yet to be made.  Lawyer asked my thoughts on whether the refund issue posed a conflict that precluded Lawyer’s involvement in the matter.

Then I woke up!

Your task: Identify Lawyer who made an ethics inquiry in my dream.

I need better dreams.