Monday Morning Answers #279

Happy Monday!

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

Honor Roll

• Karen Allen, Karen Allen Law
• Alberto Bernabe, Professor, UIC School of Law
• Amy Butler, Esq.
• Andrew Delaney, Martin Delaney & Ricci Law Group
• Heather Devine, Tarrant Gillies Shems
• Rick Fadden, Barry Callebaut Group
• Robert Grundstein
• Nikolaus Houghton, Facey Goss McPhee
• Glenn Jarrett, Jarrett/Hoyt
• Douglas Keehn, Assistant Attorney General, Medicaid Fraud & Residential Abuse Unit
• Mary Kehoe, Esq.
• Keith Roberts, Darby Kolter & Roberts
• Joe Strain, Marsicovetere & Levine Law Group
• Jonathan Teller-Elsberg, Staff Attorney, New Hampshire Legal Assistance
• The Honorable John Valente, Vermont Superior Judge
• Jason Warfield, J.D.
• Thomas Wilkinson, Jr., Cozen O’Connor

ANSWERS

Questions 1 & 2

Earlier this week, I presented at the State’s Attorneys annual training.  I mentioned the rule that governs a lawyer’s remarks during a trial.  Later today, I’ll go over the rule again when I present at the Defender General’s annual training.  While each group practices criminal law, the rule applies to all trials, whether criminal or civil.  Questions 1 and 2 are about the rules.

Question 1.

Fill-in-the-blank.

“In trial, a lawyer shall not allude to any matter that the lawyer does not reasonably believe is relevant or that will be supported by _________      _____________.”

ADMISSIBLE EVIDENCE.  V.R.Pr.C. 3.4(e).

Question 2

The same rule states that, in trial, a lawyer shall not “state a personal opinion as to” four things. 

One point for each that you can identify.

It’s V.R.Pr.C. 3.4(e) and the four are:

• The justness of the cause.
• The credibility of a witness.
• The culpability of a civil litigant.
• The guilt of innocence of an accused.

Question 3

With the state prosecutors and public defenders in mind, here’s a question on conflicts.

When it comes to conflicts of interest, the rules on imputed conflicts are the same when a lawyer moves to & from government practice as they are when the lawyer moves from one private firm to another.

• A.  True.
• B.   False.

When a lawyer move from private firm to private firm, imputation is governed by V.R.Pr.C. 1.10.  If a lawyer participated personally & substantially in a matter while at the old firm, and if the new firm is on the opposite side of the same matter, the new firm is disqualified upon lawyer’s job switch. We do not allow screening in that situation. By contrast, the disqualification of government lawyers is governed by V.R.Pr.C. 1.11, which allows screening when a lawyer moves to or from government practice.

Question 4

Having worked in the same county for years, Deputy State’s Attorney and Public Defender discuss opening a private law firm together.  The plan would be to focus on representing parents who are involved in juvenile (CHINS) proceedings.  The plan would include partnering with a licensed family therapist who would provide services to the firm’s clients.  DSA, PD, and the licensed family therapist would each take a 1/3 ownership interest in the firm.

If DSA and PD contact me to ask whether the Vermont Rules of Professional Conduct allow for such an arrangement, it’s most likely that my answer will be:

• A.  Yes.
• B.  No.  V.R.Pr.C. 5.4(d).
• C.  The rules do not address this issue.
• D.  The rules do not address this issue, but since you’re both state employees, you should check the State Ethics Code that the legislature passed last year.

Question 5

I don’t think I’ll have to suggest to the public defenders that they not do this in court.

In My Cousin Vinny, what did Vinny do during the prosecution’s opening statement that, arguably, violated the duties of competence & diligence that he owed to his clients, as well as the duty to refrain from undignified and discourteous conduct that was degrading to Judge Haller’s court?

ANSWER:  Many people are going to be upset with me. However, the question asked what Vinny did “during the prosecution’s opening statement.”  The answer is that he FELL ASLEEP.  It was during his own opening statement, not the prosecution’s, that Vinny did this.

Bonus:  Also in My Cousin Vinny, what was Mona Lisa Vito’s first response when the prosecutor attempted to discredit her as an expert witness by asking: “can you tell me, what would the correct ignition timing be on a 1955 Bel Air Chevrolet with a 327 cubic inch engine and a four-barrel carburetor?”

Despite Ms. Vito’s choice of language, Judge Haller didn’t seem offended or to consider it discourteous or degrading.

Mona Lisa Vito’s first response was “it’s a [bs] question.” It was only later that she called it a “trick question.”  The voir dire begins at the 55 second mark of this clip, with the answer at 1:14.

Five for Friday #274

Welcome to Friday and the 274^th legal ethics quiz!

I’m running the Boston Marathon on Monday. While the training cycle often left my body and mind dubious of this next statement, running is critical to my well-being. For me, the most rewarding aspects are the physical & mental challenges, and the friendships & social connections I wouldn’t have made if I’d never taken up the sport.

So, I think my message today is “find your run.”  Not literally, but figuratively.  Seek something outside the law that does for you what running has done for me.

In fact, that’s kind of the point of Well-Being Week in Law.  Taking place May 1-5, WWIL aims to “to raise awareness about mental health and encourage action and innovation across the profession to improve well-being.” I’m a big fan of this paragraph on the organizer’s website:

• When our professional and organizational cultures support our well-being, we are better able to make good choices that allow us to thrive and be our best for our clients, colleagues, organizations, families, and communities. It is up to all of us to cultivate new professional norms and cultures that enable and encourage well-being. Do your part and help spread the word.”

Here here!

Each day during WWIL has a different theme, with each day’s theme a component of well-being:

The website includes dozens of suggested activities for each day, whether done as individuals, firms, offices, or bar associations.  Or you can create your own activity.  For example, on Wednesday of 2022’s WWIL, I made this video of me expanding my intellectual horizons by learning how to make bread.

I encourage all to participate, even if only by doing one ten-minute activity on one of the days. That’d be better than nothing! And, as we know, when it comes to our well-being, doing nothing is no longer an option.

Onto the quiz!

PS: I had grand visions of tying this intro to “274” by concluding with two statements: (1) WWIL is only 27 days away; and (2) this will be my 4^th Boston Marathon.  27 & 4 combine to form 274.  It was only about 3 lines ago that I realized WWIL week, which begins on May 1, is 17 days away.  Math incompetence!

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.
• Please do not post answers as a “comment” to this post.
• E-mail answers to michael.kennedy@vermont.gov
• Team entries welcome, creative team names even more welcome.
• 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 use a variation of this question in my wellness seminars. 

Fill in the blank:

There’s a rule that requires lawyers to “act with ________ diligence and promptness in representing a client.”

Question 2

This came up twice in inquiries this week.  The same word properly fills in each blank.  What’s the word?

Lawyer called me with an inquiry. I listened, then responded, “Under the rule, you represent the ________, not any individual members or employees.”  Then, I read to the lawyer the following language that appears in a comment to the rule:

“Care must be taken to assure that the individual understands that, when there is adversity of interest, the lawyer for the ________ cannot provide legal representation to the individual, and that discussions between the lawyer for the ________ and the individual might not be privileged.”

• A.   Organization.
• B.   Government Agency.
• C.   Corporation.
• D.   Non-profit.

Question 3

At last month’s Mid-Year Meeting of the Vermont Bar Association, an overflow crowd at the plenary session participated in a discussion of a problem that is facing the bar and shared ideas as how best to address it.  It’s a problem that’s not unique to Vermont’s legal profession. Indeed, around the country, disciplinary prosecutors have started to use the following rules to address the problem:

• The rule that prohibits undignified or discourteous conduct that is degrading or disruptive to a tribunal.
• The rule that prohibits a lawyer from taking action that has no substantial purpose other than to delay, burden, or embarrass a third person.
• The rule that prohibits conduct that is prejudicial to the administration of justice.

What’s the general issue that was discussed at the VBA meeting and that disciplinary prosecutors use these rules to address?

Question 4

If you watch Succession, you might have noticed this in a recent episode. Legal ethics in action!

There’s a rule that includes the following statement in a comment: “Not all persons who communicate information to a lawyer are entitled to protection under this rule.”  The comment goes on to specify that a particular type of person is not entitled the rule’s protection. What type? 

A person who:

• A.  fails to comply with the terms of a fee agreement.
• B.  fails to assist the lawyer in responding to discovery requests.
• C.  posts a negative online review about the lawyer.
• D.  consults with or provides information to a lawyer with the intent to disqualify the lawyer from representing someone else whose interests are materially adverse to their own.

Question 5

Late last month, a civil trial involving a major Hollywood celebrity’s skiing accident made headlines.  Among other things, there were multiple stories about how one of the lawyers on the celebrity’s defense team apologized for how the lawyer treated a witness for the plaintiff.  Specifically, the lawyer apologized for being an “ass” during a cross-examination and stated that his conduct is “why people don’t like lawyers.”

On March 30, a jury returned a verdict in favor of the celebrity defendant and awarded the celebrity defendant $1 on a counterclaim.

Name the celebrity defendant.

Five for Friday #256

Welcome to Friday and the 256^th 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 18^th, and, after last night’s win, the Celtics are one game closer to their 18^th 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 8^th 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 x^x, 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 8^th 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!

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 20^th 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?

Monday Morning Honors #255

Happy Memorial Day!

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

Honor Roll

• Matthew Anderson, Pratt Vreeland Kennelly Martin & White
• Evan Barquist, Montroll Oettinger & Barquist
• Alberto Bernabe, Professor, UIC School of Law
• Benjamin Gould, Paul Frank + Collins
• Robert Grundstein
• Anthony Iarrapino, Wilschek & Iarrapino Law Office
• Glenn Jarrett, Jarrett & Luitjens
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Deb Kirchwey, Law Office of Deborah Kirchwey
• Elizabeth Kruska, Immediate Past-President, Vermont Bar Association
• John Leddy, McNeil Leddy & Sheahan
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Jeffrey Messina, Esq.
• Hal Miller, Hawaii Agency Underwriting Counsel, First American Title
• Herb Ogden
• Jonathan Teller-Elsberg, Sheehey Furlong & Behm
• The Honorable John Valente, Vermont Superior Judge
• Lucia White, Mediator & Paralegal, Nanci Smith Law

Answers

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?

This Rule 1.9 – Duties to Former Clients.  It addresses both Conflicts and Confidences.

 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. Rule 1.5 – Fees
• B. includes an exception that allows a lawyer to charge a fee that is otherwise unreasonable if the client agrees.
• C. includes an exception that allows a lawyer to charge a fee that is otherwise unreasonable if the client agrees, 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, if 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. Rule 1.18 – Duties to 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.
• D.  Lawyer. Here, I was referring to Rule 1.6 – Confidentiality of Information.  Paragraph(c)(3) includes the so-called “self-defense” exception.  Last week, I referenced the rule & exception in this post about the Illinois judge who ordered Drew Peterson’s former lawyer not to disclose information relating to the disappearance of Peterson’s missing wife.

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.

The parties are Johnny Depp and Amber Heard.  Here’s the moment when the lawyer objected to his own question.  To be fair, media ran with this.  As LegalEagle explains here, the lawyer was more trying to strike the answer more than to object to his own question.

Five for Friday #255

Welcome to Friday and the 255^th 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!

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 in Legal Ethics: #247

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

Many readers reported an interest in Theranos content.  Alas, not one mentioned Killing Eve!  Still, congratulations to the Honor Rollees!

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
• Beth DeBernardi, Administrative Law Judge, Vermont Department of Labor
• Corinne Deering, PACE Registered Paralegal®, Paul Frank + Collins
• Andrew Delaney, Martin Delaney & Ricci
• Cary Dube, Bergeron, Paradis, Fitzpatrick
• Benjamin Gould, Paul Frank + Collins
• Robert Grundstein
• Glenn Jarrett, Jarrett & Luitjens
• Deb Kirchwey, Law Office of Deborah Kirchwey
• Jim Knapp, Esq.
• Elizabeth Kruska,Immediate Past-President, VBA Board of Bar Managers
• John T. Leddy, McNeil Leddy Sheahan
• Pam Loginsky, Deputy Prosecuting Attorney, Tacoma (WA)
• Kevin Lumpkin,Sheehey Furlong & Behm
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
• Herb Ogden, Esq.
• Keith Roberts, Darby Kolter & Roberts
• Jonathan Teller-Elsberg, Sheehey Furlong & Behm
• Honorable John Valente, Vermont Superior Judge
• Jason Warfield, J.D.
• Thomas Wilkinson, Jr., Cozen O’Connor
• Zachary York, Paralegal, Sheehey Furlong & Behm

 

ANSWERS

Question 1

 Does an e-mail qualify as a “writing” for the purposes of any of the Vermont Rules of Professional Conduct that require something to be in writing?

YES.  See, V.R.Pr.C. 1.0(n).

 Question 2

 Attorney represents Eve in Eve v. Villanelle.  Attorney called me with an inquiry about the matter.  After listening, I asked a question to which Attorney responded “yes.”  So, I replied “parties are always free to communicate with each other.  But there’s a rule that prohibits you from violating the rules through the act of another. So, take care not to script something for Eve to parrot to Villanelle.”

When Attorney responded “yes,” what question had I asked?

• A.  Whether Eve is related to Villanelle.
• B.  Whether Eve is Villanelle’s supervisor at work.
• C.  Whether Villanelle is a former client of Attorney’s.
• D.  Whether Villanelle is represented in the matter.

Question 3

 At a CLE, imagine I answer a question by saying:

• “Whenever someone asks you to disclose information that’s in a current or former client’s file, absent the client’s informed consent to disclose the information, the most prudent course is to inform the person that you require a subpoena. Then, your duty is to raise all non-frivolous arguments against disclosure in a motion to quash. If the court enforces the subpoena and compels disclosure, the rule permits you to comply with the order, even over your client’s objection.”

Arguably, at least 3 of the 7 Cs of Legal Ethics are implicated in this scenario.  However, which of the “C” duties were we most likely discussing when the question was asked?

CONFIDENTIALITY.  See, my blog post Subpoena to Disclose Client Information?

 Question 4

 Lawyer and Client agree that Lawyer will represent Client for a “nonrefundable fee” of $X.  The agreement is confirmed in a writing that defines the scope of the services that Client will receive in exchange for the nonrefundable fee.  The agreement does not prospectively limit the Client’s ability to challenge the reasonableness of the non-fundable fee.  Both Lawyer and Client sign the agreement.

Client advances $X to Lawyer.  By rule, Lawyer

• A.  must deposit the fee into an IOLTA and withdraw the fee as earned.
• B.  must not deposit the fee into an IOLTA.  That would be commingling. See, V.R.Pr.C. 1.5(f) and 1.5(g). 
• C.  must prepare a new fee agreement that does not use the phrase “nonrefundable fee.”
• D.  C & self-report to disciplinary counsel.

See also, Trust Account Tuesday: Nonrefundable fees.

Question 5

 Yesterday, Hulu released the first three episodes of The Dropout. It’s based on the real-life story of a person whose sensational criminal trial concluded in January.  A jury found the person guilty of multiple charges related to defrauding investors of millions.  According to NPR, the verdict “capped the downfall of one of Silicon Valley’s most dynamic and scandal-plagued young executives who promised to revolutionize blood testing with an innovative technology that required just a small sample of blood pricked from a patient’s finger.”

The saga first garnered significant publicity following investigative journalist John Carreyrou’s 2015 release of Bad Blood: Secrets and Lies in a Silicon Valley Startup.  The attention included discussions of legal ethics and professional responsibility.  Indeed, according to a law review article that was published last year, the “story touches on multiple areas of professional responsibility, including competence, diligence, candor, conflicts, and liability . . . [and] serves as a helpful tool to explore the limits of ethical lawyering.”

Name the company at the center of the saga.  THERANOS

Bonus: name “the dropout” who was recently convicted of the criminal charges.  ELIZABETH HOLMES

 

Five for Friday #247

Welcome to Friday and the 247^th legal ethics quiz.

The overwhelming response to my ranking of the Girl Scout Cookies left me unsure if I could ever again post a Friday quiz.  Surely no story would generate as much interest.  So, I suppose today’s intro is like that song at a concert that the artist/band uses after a string of popular ones, but before the closing and encore.  The song that has little purpose other than filler while everyone catches their breath.

Still, with the quiz number in mind, I’ve been up 24/7 trying to come up with ideas.  I failed.  Just like I did in the minds of so many when I left Thin Mints® out of my Top 3.  However, in the process, I learned that failure has long been associated with today’s date.

Today is an anniversary.  The United States Constitution went into effect on March 4, 1789, the same day that our brand-new federal government was to begin operating.

Well, at least for the United States Senate, things didn’t get off to a great start. Due to a late-winter snowstorm that wreaked havoc on travel, only 8 senators showed up for opening day.  Well short of the 12 required for a quorum.  So, nothing got done.

Much like today in this introduction.

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

 Does an e-mail qualify as a “writing” for the purposes of the various Vermont Rules of Professional Conduct that require something to be in writing?

 Question 2

Attorney represents Eve in Eve v. Villanelle.  Attorney called me with an inquiry about the matter.  After listening, I asked a question to which Attorney responded “yes.”  So, I replied “parties are always free to communicate with each other.  But there’s a rule that prohibits you from violating the rules through the act of another. So, use caution.  It can be risky to script something for Eve to parrot to Villanelle.”

When Attorney responded “yes,” what question had I asked?

• A.  Whether Eve is related to Villanelle.
• B.  Whether Eve is Villanelle’s supervisor at work.
• C.  Whether Villanelle is a former client of Attorney’s.
• D.  Whether Villanelle is represented in the matter.

Question 3

 At a CLE, imagine I answer a question by saying:

• “Whenever someone asks you to disclose information that’s in a current or former client’s file, absent the client’s informed consent to disclose the information, the most prudent course is to inform the person that you require a subpoena. Then, your duty is to raise all non-frivolous arguments against disclosure in a motion to quash. If the court enforces the subpoena and compels disclosure, the rule permits you to comply with the order, even over your client’s objection.”

Arguably, at least 3 of the 7 Cs of Legal Ethics are implicated in this scenario.  However, which of the “C” duties were we most likely discussing when the question was asked?

Question 4

 Lawyer and Client agree that Lawyer will represent Client for a “nonrefundable fee” of $X.  The agreement is confirmed in a writing that defines the scope of the services that Client will receive in exchange for the nonrefundable fee.  Both Lawyer and Client sign the agreement.

Client advances $X to Lawyer. Lawyer has yet to do any work for Client.  By rule, Lawyer

• A.  must hold the fee in an IOLTA and withdraw the fee as earned.
• B.  must not hold the fee in an IOLTA.  In Vermont, that would be commingling.
• C.  must prepare a new fee agreement that does not use the phrase “nonrefundable fee.”
• D. C & self-report to disciplinary counsel.

Question 5

Yesterday, Hulu released the first three episodes of The Dropout. It’s based on the real-life story of a person whose sensational criminal trial concluded in January.  A jury found the person guilty of multiple charges related to defrauding investors of millions.  According to NPR, the verdict “capped the downfall of one of Silicon Valley’s most dynamic and scandal-plagued young executives who promised to revolutionize blood testing with an innovative technology that required just a small sample of blood pricked from a patient’s finger.”

The saga first garnered significant publicity following investigative journalist John Carreyrou’s 2015 release of Bad Blood: Secrets and Lies in a Silicon Valley Startup.  The attention prompted discussions of legal ethics and professional responsibility.  Indeed, according to a law review article that was published last year, the “story touches on multiple areas of professional responsibility, including competence, diligence, candor, conflicts, and liability . . . [and] serves as a helpful tool to explore the limits of ethical lawyering.”

Name the company at the center of the saga.

Bonus: name “the dropout” who was recently convicted of the criminal charges.

Five for Friday #245: Snow Days

Welcome to Friday and the 245^th legal ethics quiz.

Around Vermont, today is the day that school-aged me loved more than any other.  A day within the academic calendar that enjoys romanticized status.

The snow day.

I’m too old to remember what we did on snow days.  I tell myself that the First Brother and our friends grabbed our red plastic sleds (mine had yellow handles) and bravely trudged through the storm to our favorite sliding spots.  Yes, we call it “sliding.”

One such spot was Blueberry Hill.  At least that’s what the kids who lived in the neighborhoods off Williston Road called it.  I doubt that name appears on any official map or record.  In my memory, it was a treacherous hill that demanded great bravery.  There was a sharp right turn about halfway down.  Take it too wide and you’d slam into a tree, cut it too tight and you’d fall off a cliff into a ravine.  Even among those who properly navigated the corner, only the most courageous steered towards the jump that older kids built had into the run – a jump that, if taken, resulted in “legend” status the following day in the cafeteria.

If we could visit Blueberry Hill today, we’d probably laugh at how small – and not steep – it seems in comparison to the mountain of our memories.  Alas, there’s no longer any sliding there.  Like Joni Mitchell sang, they paved our wintry paradise and put up a condominium complex.  And while I’m suspect that the kids who live in our old neighborhoods have found a hill to conquer, I’m convinced that they’ll never know the best part of our experience: the way that we learned it was a snow day.

Scrolling through Twitter last night, I saw this:

It’s time-stamped 6:33 PM.  I’m by no means criticizing the announcement or the many like it posted by other school districts. Advance notice is a good thing, especially for parents who need to plan.  Alas, I feel for the kids who will never know the experience of waking up early, turning on the radio, and waiting to learn whether your school was on the list of closings.

For us, the anticipation was intense.  Schools were called alphabetically, and we lived in South Burlington.  Sure, there were signs.  If Burlington schools were closed, our hopes would rise as there’s no way we’d be open if they’re closed!  Or, conversely, if Essex or Jericho schools weren’t announced, our spirits would sink, knowing that if they’re open, we will be too.  Still, we never knew until we knew.

While I don’t remember the exact list, I remember it feeling like the radio announcer was listing the Rs in slow motion . . .

• “Randolph High School . . . Richford High School . . . Richmond Elementary . . . “

Oh, to be so young and carefree that our whole lives turned on what came next!

Would it be the soul-crushing “Stowe Middle and High School?”  Or the four greatest words in the history of snow days? “

“All South Burlington Schools.”

Maybe the anticipation I remember can be replicated by constantly refreshing the school district’s Twitter feed.  Or maybe hopes rise & fall with the results spit out by the Snow Day Calculator.  Still, I’ll always smile when I reminisce about those winter mornings huddled around the radio.

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

Here are some exceptions to one of the rules:

• 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.

The rule addresses one of the 7 Cs of Legal Ethics.  Which one?

 Question 2

Fill in the blank.

A comment to one of the conflicts rules states that “continued common representation will almost always be inadequate if one client _________________.”

• A.  pays a higher percentage of the lawyer’s fee than the other client.
• B.  is also a former client, but in an unrelated matter.
• C.  is the lawyer’s main contact on matters related to the representation.
• D.  asks the lawyer not to disclose to the other client information relevant to the common representation.

Question 3.

Notwithstanding a conflict of interest, a lawyer may represent a client if

• A. The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client and the representation is not prohibited by law.
• B.  The representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal.
• C.  Each affected client gives informed consent, confirmed in writing.
• D.  A, B, and C.

Question 4

Lawyer called with an inquiry. I listened, then responded:

• “There’s no rule that specifically prohibits it. But the fee must be reasonable, you must comply with the rule on business transactions with a client, and you should consider whether it would create a personal interest that would materially limit your ability to provide the client with competent and candid legal advice.”

Given my response, it’s most like that Lawyer called to ask about:

• A.  a contingent fee.
• B.  accepting an ownership interest in a client’s business as payment for legal fees.
• C.  representing a family member.
• D.  marrying a client.

Question 5

In the introduction, I mentioned something that I saw on Twitter the other day.  Another thing that I saw on Twitter this week was this:

Each rewatching of My Cousin Vinny should count towards an attorney's CLE credits.

— Waqar Vick Rehman (@WaqarVick) February 3, 2022

I agree!

Vinny’s clients were charged with robbing and shooting a store clerk.  However, when they were arrested, they thought it was for accidentally shoplifting.  While at the store, Vinny’s cousin didn’t pay for an item he had put in his pocket because his hands were full.

What was the item?

Bonus: what’s the name of the store?

Five for Friday #243

Welcome to Friday and the 243^rd #fiveforfriday legal ethics quiz!

Wait . . . the Friday post is the only connection I have with many of you, and this is the first of 2022.  

So, should I have opened with “Happy New Year?” 

If so, I apologize.  I never know where the line is between a good-natured greeting and “hey weirdo, it’s not a new year anymore.”  Where’s the cutoff?  When is past time to open each conversation with New Year’s wishes?  Readers should feel free to weigh-in.  

Next, come Monday, I hope to present the answers in a new format. It’s either going to be by video or podcast.  I think this will provide an opportunity to drill deeper into the issues that the questions are intended to highlight.  Further, I’m going to include the First Brother as my guest.  He’s not a lawyer, but he’s a potential consumer of legal services.  And that’s the point.  There’s value in the non-lawyer perspective on rules that are intended to protect clients.

Finally, I should make a half-hearted effort to honor tradition and attempt to tie this introduction to the quiz number.

With 243 in mind, I’m struck by the fact that, but for Omicron, many of us would about now be departing for Montreal and the YLD Thaw. There’s a lot about the event that I will miss, including the epic CLE that Andrew Manitsky and I were scheduled to present, the camaraderie that’s always part of the weekend, and the VBA’s annual Friday-night takeover of Hurley’s.

I will not miss high temperatures of 2 with wind chills plummeting towards 43 below.

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

 Imagine a CLE at which I address the distinction between “public record” and “generally known.”

Which 2 of the 7 Cs of Legal Ethics am I most likely to mention?

• A.  Conflicts & Communication.
• B   Conflicts & Confidentiality.
• C.  Confidentiality & Commingling.
• D.  Confidentiality & Candor.

Question 2

 Office employs Paralegal.  In a new matter, Paralegal has a conflict that would prohibit Paralegal from accepting the representation if Paralegal were a lawyer.  Which is most accurate?

• A.  Paralegal’s conflict is imputed to all lawyers in Office and Office must decline the representation.
• B.  Paralegal’s conflict is imputed, but only to any lawyer at Office who regularly supervises Paralegal.
• C.  A comment to one of the rules indicates that while Paralegal’s conflict is not imputed to any lawyer at Office, Paralegal should be screened from involvement in the new matter.
• D.  Fake question. In Vermont, conflicts are not imputed from one lawyer to others in the same office, and they certainly aren’t imputed from non-lawyers to lawyers.

 Question 3

 Lawyer referred Client to Attorney.  Lawyer and Attorney do not work in the same firm.  Can Attorney share part of the fee with Lawyer?

• A. No.
• B.  Yes, if the fee division is in proportion to the work done by each, or, each assumes joint responsibility for the representation.
• C.  Yes, if Client agrees, the fee sharing agreement is confirmed in writing, and the total fee is reasonable.
• D.  B & C.

Question 4

 Client contacts Lawyer. Client explains that they are represented by Attorney in a matter.  Client wants a second opinion.   Lawyer is not otherwise involved in the matter.

True or False?

Vermont’s rule prohibits Lawyer from communicating with Client about the matter without Attorney’s consent.

Question 5

A famous jurist made headlines this week for donating $5 million to her law school to fund scholarships – full tuition and books – for 10 women.  In addition, upon completing their first year of law school, each scholarship recipient will receive an offer of a summer fellowship with the jurist.

The jurist’s granddaughter, Sarah Rose, is currently a 3L at the same law school.  Sarah also works as a law clerk for her grandmother on their latest streaming venture.

Name the jurist.

Bonus – name the law school.

Five for Friday #232

Welcome to Friday and the 232^nd #fiveforfriday legal ethics quiz.

My brother has two tickets to Sunday’s Red Sox game against the Yankees.  Originally, our respective plans did not include me using the 2^nd ticket.  Of course, plans, as they say, change.  And while ours remain in flux, it looks like I’ll be joining my brother Sunday afternoon at Fenway.

Let me emphasize that my brother has the tickets. As in, he paid for them and they’re in his possession.

Why is that deserving of emphasis?

Because as anyone who recalls the 204^th #fiveforfriday post knows, the last time Patrick and I went to a Red Sox-Yankees game, we didn’t have tickets.

Enjoy the weekend!

Onto the quiz.

Rules

•  Open book, open search engine, text-a-friend.
• Exception:  Question 5.  We try to play that one honest.
• Unless stated otherwise, the Vermont Rules of Professional Conduct apply
• Team entries welcome, creative team names even more welcome.
• E-mail answers to michael.kennedy@vermont.gov
• I’ll post the answers & Honor Roll on Monday
• Please don’t use the “comment” feature to post your answers
• Please consider sharing the quiz with friends & colleagues
• Share on social media.  Hashtag it – #fiveforfriday

 Question 1

“Confidentiality” wouldn’t be a bad answer. However, which of the 7 Cs of Legal Ethics is most specifically covered by rules that include the following words in their titles?

• Concurrent
• Former
• Prospective

Question 2

Lawyer represents Client.  Lawyer knows that Client expects assistance that is not permitted by the Rules of Professional Conduct or other law.  Thus, by rule, Lawyer’s first step is:

• A.  to withdraw.
• B.  to inform the tribunal.
• C.  to consult with Client on any relevant limitation on Lawyer’s conduct.
• D.  A & B.

Question 3

Lawyer represents Client. Client is distraught about information that will be made public during a trial scheduled to begin next week.  This morning, Client made statements to Lawyer that caused Lawyer reasonably to believe that Client intends to take their own life tonight.  Lawyer wants to disclose Client’s intent to someone who can intervene.  Under Vermont’s rules, Lawyer

•  A.   must disclose Client’s intent.
•  B.   may disclose Client’s intent.
•  C.   must not disclose Client’s intent.

Question 4

 Which does the rule treat differently than the others?

• A.  a client’s personal check in the amount of $2000.
• B.  a certified check.
• C.  a check for $100,001.00 that is drawn on the trust account of a lawyer licensed to practice law in Vermont.
• D. a check for $500,001.00 issued by an insurance company licensed to do business in Vermont.

 Question 5 (and bonuses)

Speaking of checks, and in honor of the bar exam being upon us . . .

. . . in 2002, one of Hollywood’s megastars was nominated for the Golden Globe for Best Actor for his work playing real-life forger and fraudster Frank Abergnale, Jr.  The movie also starred another megastar as an FBI agent named Carl, who devoted much of his work to tracking down Abergnale.

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 weeks, and I passed.”     

Name the movie and the Hollywood stars who played Frank and Carl.