Monday Morning Honors & Answers: #249

When I woke up, I wasn’t certain whether it was Monday or January.  I’m still not.  Oh well.

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

Honor Roll

  • Karen Allen, Karen Allen Law
  • Matthew Anderson, Pratt Vreeland Kennelly Martin & White
  • Evan Barquist, Montroll Oettinger Barquist
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, University of Illinois at Chicago Law
  • Andrew Delaney, Martin Delaney & Ricci
  • Heather Devine, Tarrant Gillies Shems
  • Rick Fadden, Barry Callebaut, Blogger’s Stoolmate
  • Robert Grundstein
  • Anthony Iarrapino, Wilscheck & Iarrapino
  • Glenn Jarrett, Jarrett & Luitjens
  • Elizabeth Kruska, Immediate Past President, Vermont Bar Association Board of Managers
  • Deb Kirchwey, Law Office of Deborah Kirchwey
  • Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
  • Pam Loginsky, Deputy Prosecuting Attorney, Pierce County, Washington
  • Kevin Lumpkin, Sheehey Furlong & Behm
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeffrey Messina, Messina Law
  • Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
  • Herb Ogden, Esq.
  • Margaret Olnek, Divorce Coach; Assistant Professor, Vermont Law School
  • Lisa Penpraze, Assistant United States Trustee, Department of Justice
  • Jim Remsen, Lord Microstrain, Blogger’s Stoolmate
  • Keith Roberts, Darby Kolter & Roberts
  • Stephanie Romeo, Ryan Smith & Carbine
  • Jonathan Teller-Elsberg, Sheehey Furlong & Behm
  • Honorable John Valente, Vermont Superior Judge
  • Jason Warfield, J.D.
  • Thomas Wilkinson, Jr., Cozen O’Connor


Question 1

At a CLE later today, I’ll urge lawyers to set reasonable expectations with clients at the outset of the representation. I’ll also remind them that a lawyer’s duty is to provide candid legal advice, even if it’s advice that the client doesn’t want to receive.

During that portion of the seminar, which 2 of the 7 Cs of legal ethics will I mention?

I confess, the two I had in mind were Communication and Competence.  However, several readers mentioned “candor,” so I’ll accept that as well.  As I blogged here, I’m of the opinion that a lawyer’s duty to communicate sufficient information to allow the client to make informed decisions includes setting reasonable expectations at the outset of the representation.  And, as I blogged here, I’m also of the opinion that the duties of competence and communication include providing candid legal advice.  See, Rule 2.1 – Advisor.

Question 2

 With respect to legal ethics, the phrase “going up the ladder” is most often used in connection with the duties of an attorney who:

  • A.  is duty bound to report another attorney to disciplinary authorities.
  • B.  represents an organization. Rule 1.13 – Organization as Client
  • C.  is being paid by someone other than the client.
  • D.  has a side business painting houses.

Question 3

Prospective Client wants to retain Lawyer for representation in a divorce from Spouse.  Spouse’s business deals will be a significant issue in the divorce.  Lawyer’s paralegal used to work at the law office that is representing Spouse.  While there, Paralegal participated personally & substantially on legal matters related to Spouse’s business deals.

Under Vermont’s rules, what’s most accurate?

  • A.  Lawyer may not represent Prospective Client. Paralegal has a conflict and it’s imputed to Lawyer.
  • B.  Lawyer may represent Prospective Client.  Prospective Client knows all about Spouse’s business deals.  Therefore, there’s no risk that Paralegal will share confidential information.
  •  C.  Lawyer may represent Prospective Client, but only if  Spouse gives informed consent, confirmed in writing.
  • D. Lawyer may represent Prospective Client.   Paralegal’s conflict is not imputed to Lawyer.  So that Paralegal does not share any confidential information about Spouse, Lawyer should screen Paralegal from any involvement in the divorce.  Rule 1.10 – Imputation of Conflicts of Interest – General Rule.

Question 4

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

  • “Notice should come from you and the firm. A few years ago, the ABA issued an advisory ethics opinion that stated that it’s preferable to issue a joint notice.  The notice should go to all clients who deal (or who have dealt) directly with you.  What the clients do after that is up to them.”

Given my response, what will Attorney be doing soon?

Leaving the firm.  See my blog posts Leaving a Law Firm – Breaking up is hard to do & Leaving a Law Firm – Update.

Question 5

 I rarely take requests for Question 5.  However, I was recently sitting at McGillicudy’s when Rick, a non-lawyer friend and fellow stool sitter, mentioned that he’d tried a recent quiz and hadn’t gotten any right.  I replied that he shouldn’t because he’s not a lawyer!  Then, my brother told him to try another quiz, but only to worry about Question 5.

Still, I was surprised.  We were sitting in our regular bar talking, however briefly, about legal ethics and professional responsibility?!?!  The word is spreading!  So, I asked Rick his favorite fictional lawyer and promised to dedicate Question 5 to that lawyer.  Rick replied something to the effect “it’s ironic that on an ethics quiz you’ll basically be telling me the answer ahead of time!”

Aha! I did no such thing! I asked his favorite fictional lawyer. I never said that lawyer would be the answer to Question 5!

How lawyerly of me to ruin the moment.

Anyhow, Rick’s favorite fictional lawyer is Seinfeld’s Jackie Chiles.  So, without further ado, here’s to Rick!

In an episode of Seinfeld, Kramer retains Jackie Chiles to sue a woman who Kramer alleges caused him to crash his car.  Here’s a snippet of one of their conversations:

Kramer: And she’s the heir to the ________ candy bar fortune.
Jackie Chiles: Could you repeat that?
Kramer: I said she’s the heir to the ________ candy bar fortune.
Jackie Chiles: _________? That’s one of our top-selling candy bars. It’s got chocolate, peanuts, nougat. It’s delicious, scrumptious, outstanding!

Later, at trial, things go awry after Kramer, on the advice of Stam (a golf caddy) and over Jackie’s objections, asks the judge to order the woman to try something on.

Fill-in-the-blank:  what candy bar?

Bonus:  what did the judge order the woman to try on?

Of course, this was Sue Ellen Mischke, heiress to the Oh Henry! candy fortune.  The judge ordered her to try on a bra, which didn’t fit.  Leading to this exchange and today’s bonus quote from Jackie Chiles:

Judge: This court will come to order. Go ahead, Miss Mischke, try it on.
Sue Ellen: It doesn’t fit. I can’t put it on.
Jackie Chiles: [to Kramer and Stan] Damn fools! Look at that! We got nothing now! Nothing! I’ve been practicing law for 25 years, you’re listening to a caddy! This is a public humiliation! You can’t let the defendant have control of the key piece of evidence. Plus, she’s trying it on over a leotard. Of course a bra’s not gonna fit on over a leotard. A bra gotta fit right up a person’s skin. Like a glove!


Monday Morning Answers #131

Happy Monday!

For those of you who venture to the NEK to bike or run, I highly recommend the Beebe Spur Rail Trail. I found it this weekend.  From the hospital, it’s just over 5 miles to the border.  Flat, packed gravel, beautiful views of Lake Memphramagog.  Or, add a few miles by parking downtown and using the Newport Rec Path to get to Beebe Spur. More great views.


Friday’s questions are here.  Today’s answers follow the Honor Roll.

Honor Roll


Question 1

You’re at a CLE.  You hear me say:

  • “The privilege is different from the rule.  The rule talks about ‘information relating to the representation.’ A comment makes clear that the rule encompasses more than the privilege.”

What was I talking about?

  • A. File delivery & work product
  • B.  Client confidences.  Rule 1.6(a), Comment [3].
  • C.  Storing client information in the cloud
  • D.  Inadvertent production of privileged information

Question 2

In Vermont, most conflicts are imputed from the conflicted lawyer to other lawyers in the same firm.

True or false: unlike other conflicts, imputed conflicts cannot be waived by the affected client.

FALSE.  Rule 1.10(c).

Question 3

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

  • “It depends. Did you receive information that could be significantly harmful to the person?”

Most likely, “the person” refers to:

  • A.  a former client of Lawyer’s
  • B.  a current client of Lawyer’s
  • C.  a prospective  client who met with, but did not retain, Lawyer.  Rule 1.18(c).
  • D.  opposing counsel

Question 4

How long must Vermont lawyers keep copies of advertisements?

  • A.   2 years
  • B.   6 years
  • C.   It depends. Print ads or electronic ads?
  • D.   They don’t.  The rule requiring retention of ads was repealed in 2009.

Question 5

As I mentioned above, 131 includes 3.1.   Rule 3.1 makes it a disciplinary violation to file a frivolous lawsuit.

One of the most misunderstood lawsuits of all time involved hot coffee and McDonald’s.  It’s not as frivolous as the legend that has grown around it would have you believe.

Anyhow, the suit served as the inspiration for an episode of a famous tv show in which one of the main characters sued Java World for burns that resulted from hot coffee.  Java World was prepared to make an opening offer of free coffee for life and $50,000.

The character & his lawyer showed up to meet with representatives from Java World and their attorney.  The Java World attorney said “we are prepared to offer you all the free coffee you want at any of our stores throughout North America and Europe, plus . . .”

Before he could finish, the character jumped from his seat, shook the Java World’s attorney’s hand and, without consulting with counsel, exclaimed “I’ll take it!!!!”

Name the character.

Cosmo Kramer, Seinfeld.  The scene is here.

Was That Wrong? That’s what makes this so difficult.

Was That Wrong is a semi-regular column on Ethical Grounds. The column features stories of the absurd & outrageous from the world of legal ethics and attorney discipline. My aim is to highlight misconduct that I hope you’ll instinctively avoid without needing me to convene a CLE that cautions you to do so.

The column is inspired by the “Red Dot” episode of Seinfeld. In the episode, George Costanza has sex in his office with a character known only as “the cleaning woman.”  His boss finds out.  Here’s their ensuing exchange :

(Scene) In the boss’ office.

  • Boss: I’m going to get right to the point. It has come to my attention that you and the cleaning woman have engaged in sexual intercourse on the desk in your office. Is that correct?
  • George: Who said that?
  • Boss: She did.
  • George: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, you know, cause I’ve worked in a lot of offices and I tell you people do that all the time.
  • Boss: You’re fired.
  • George: Well you didn’t have to say it like that.

The full script is HERE.  The scene is HERE.

Today’s story comes thanks to Joe Patrice at Above the Law: Attorney Forges Judges’ Signatures Over 100 Times.  Earns Jail, Sick Burn.  Yesterday, the attorney was sentenced to 364 days in jail, and 10 years probation, for forging judges’ signatures on 114 structured settlements and filing them with the court clerk.

As regular readers know, this is the point in the column where, using the same structure as the “was that wrong” conversation between Costanza and his boss, I’d draft an imaginary colloquy between the attorney-forger & the judge who sentenced him.

Not today.

No, today’s story reminds me more Bizarro Jerry, the episode in which Kramer is fired from a job that he doesn’t even have.  The relevant segment:

  • Leland (the boss):  Well, I’m sorry.  There’s just no way that we could keep you on.
  • Kramer:  I don’t even really work here!
  • Leland:  That’s what makes this so difficult.

The scene is HERE.  The full script is HERE.

Returning to today’s story, as Patrice wrote on the ATL blog,

  • “It remains one of the most baffling cases of professional misconduct we’ve covered at Above the Law for the simple reason that Camacho seemingly garnered no advantage at all from his actions. The settlements would’ve earned a rubber stamp had he submitted them to the court.  He just… didn’t.”

Here’s how I envision it in Bizarro world:

  • Judge:  Well, I’m sorry.  There’s just no way we can condone lawyers forging judges’ signatures on settlements.  I sentence you to 364 days in jail.
  • Lawyer:  But they’d have been approved even if I didn’t forge them!
  • Judge:  That’s what makes this so difficult.




Monday Morning Answers: Kentucky Derby Edition

Friday’s questions are HERE.  As usual, when it comes to cashing on the Derby, I’m left Always Dreaming.

But congrats Jeanne Kennedy! My mom had Always Dreaming to win AND to place, which was good enough for a tidy little payoff and, more importantly, honorable mention Honor Roll status.  Given her success and Saturday’s sloppy track, I guess my mother is a mudder.

Spoiler alert – the answers to Friday’s questions appear immediately after the Honor Roll.



Question 1

Pletcher is a former client of Lawyer’s.  Lawyer took Pletcher’s case on a contingent fee. By rule, what must Lawyer maintain for 6 years following the termination of the representation of Pletcher?

  • A.    A copy of Pletcher’s file
  • B.    A copy of Pletcher’s fee agreement
  • C.    Records of any property or funds held in connection with the representation of Pletcher.  V.R.Pr.C. 1.15(a)(1)
  • D.   Nothing.

Note: the rules do not require lawyers to maintain copies of closed files.  Rather, Rule 1.16(d) requires a lawyer to surrender the file upon the termination of a representation.  If a lawyer chooses to keep a copy (which the lawyer’s liability policy might require) the lawyer is keeping a copy for the lawyer’s own purposes, not because the rules require it.

Question 2

Baffert is a long time client of Attorney. Last night, Baffert met with Attorney for legal advice.  During the meeting, Baffert told Attorney some bad things that he intends to do tomorrow.  As a result, Attorney reasonably believes that Baffert will commit a crime that is certain to result in substantial injury to the financial interests of Lukas.  Attorney has no reason to believe that Lukas or anyone else will suffer bodily injury.

Which is most accurate?

  • A.   Attorney must disclose Baffert’s intent
  • B.   Attorney must not disclose Baffert’s intent
  • C.   If Baffert is using or has used Attorney’s services to further the crime, Attorney must disclose Baffert’s intent.  V.R.Pr.C. 1.6(b)(2)
  • D.  If Baffert is using or has used Attorney’s services to further the crime, Attorney may disclose Baffert’s intent.

The key here is whether Baffert is using or has used Attorney’s services to further the crime.  If so, disclosure is mandatory.

Question 3

It’s Monday afternoon.

Late Saturday evening, Client was arrested and charged with DUI.  Fortunately (I guess) for Client, he had just won $2500 as a result of McCracken’s stunning victory in the 2017 Kentucky Derby. So, on Monday morning, Client retained Lawyer who agreed to handle the DUI for a $2500 flat fee.  Client and Lawyer decided not to confirm the fee agreement in writing.

Now, on Monday afternoon, which is most accurate?

  • A.   Lawyer violated the rules.
  • B.   Lawyer may not deposit the $2500 into her IOLTA account
  • C.    Lawyer must deposit the $2500 into her IOLTA
  • D.   A & B

The rules do not require the fee agreement to be reduced to writing.  However, since it was not reduced to writing, it does not qualify as a type of advanced fee that Lawyer may treat as “earned upon receipt.”  See, V.R.Pr.C. 1.5(e)(2).  We are left, then, with a fee that is paid advanced.  Per Rule 1.15(c), the $2500 must go into trust until earned.

Question 4

Attorney represents Irish War Cry.  Opposing Counsel represents Classic Empire.

Reviewing discovery that has been provided by Opposing Counsel, Attorney finds information that Attorney concludes was inadvertently produced.

Which is most accurate?

  • A.   Attorney must notify Opposing Counsel.  V.R.Pr.C., 4.4(b)
  • B.   Attorney may notify Opposing Counsel
  • C.   Attorney must first consult with Irish War Cry
  • D.   Attorney’s duties under the Rules of Professional Conduct necessarily depend upon whether the information falls under the evidentiary privilege that Classic Empire shares with Opposing Counsel.

Question 5

Mick is a criminal defense attorney.  His ex-wife is a prosecutor who bears a striking resemblance to one of the players in last week’s Question 5: Mona Lisa Vito.

Mick represents Louis Roulet, an ultra-rich playboy who is accused of a brutal crime. At first, Mick is convinced that Roulet is innocent. However, as the case progresses, Mick’s doubts grow.  Eventually, Roulet tells Mick that he (Roulet) previously committed a different crime . . . a murder for which one of Mick’s former clients, Jesus Martinez, is serving life in prison!

Identify the movie in which Mick confronts the many ethical dilemmas associated with his knowledge that a current client committed a crime for which a former client has been convicted.

(Of lesser importance is whether Mick’s driver, another former client, might have grounds to complain that Mick has charged him an unreasonable fee.)

The Lincoln Lawyer.

Lincoln Lawyer.jpg