Monday Morning Answers #141

Who knew Larry Bird would resonate so with my readers?!?!

Friday’s column is here.  The answers follow today’s honor roll.  But, first, I’m compelled to share some of the reactions to my post.

Within minutes of posting Friday’s blog, I received a text from a lawyer.  She said “OMG! I love Larry Bird! How did I not know this about you??? I’ve read Drive like a 1000 times.”  She also told me that she puts a special Larry Bird ornament on her Christmas tree every year.

So do I.

She wasn’t the only reader to reply to my post on Larry and the site lines in the old Garden.

Apparently obstructed view seats aren’t that bad.  Especially compared to the reader who bought a ticket to a Grateful Dead concert at the Garden, only to arrive and find that the seat had been removed to make room for the stage.

One reader’s use of obstructed view seats to see the Bird-era Celtics was so much more skilled than mine that she, indeed, is Vermont’s leader on the topic.

Another reader’s wife has converted to her to both basketball and the Celtics. She assures me that the new Garden seats aren’t obstructed and that the pizza is fantastic.

One reader brought me a smile with his memory of using coupons to buy tickets to afternoon games. I remember both the coupons and those glorious things of yesteryear known as “day games.”

Another remembered watching the 1979 NCAA title game (Bird v. Magic) while a law student at Michigan State. Oh the days when tvs were 12 inches  . . . and we thought that was just fine!

Still another mentioned rooting for the Celtics, in no small part due to growing up a fan of the University of Minnesota, the school that produced Kevin McHale.  McHale was Bird’s running mate for years. The reader noted that he will never forget the McHale- Rambis play.

I’m not sure how to relay the story of the reader who spotted Bird in the waiting area at Logan Aiport.  Larry was reading a newspaper.  The headline visible for anyone looking at him was about “The Big Dig.”  As this reader watched, Larry read about the Big Dig, she snapped a photo of him . . . just as he started picking his nose.

And, finally, the reader whose college friend was a bouncer who got into a fight that involved Bird . . . and that some have suggested may have cost the Celtics the NBA title in 1985. I can’t believe I didn’t remember that story!

Oh! And a first in #fiveforfriday history: a lawyer entered by answering “in person” while representing me at a closing.

My readers! I love your stories!  It’s the best part of writing this blog.

Honor Roll

Answers

Question 1

(this one happened again this week, so I’m going to keep asking)

Attorney called me with an inquiry.  Attorney said “Mike, I represent a witness.  The defendant’s attorney keeps contacting my client directly. I asked him to stop.  He said he doesn’t need my permission because my client is only a witness, not a party.  Is he right?”

What was my response?

  • A.   Yes, he’s right.
  • B.   The rule is unclear.
  • C.   The rule is unclear, but, by case law, no, he’s wrong.
  • D.  He’s wrong. The rule applies to any person represented in a matter.

Rule 4.2, the so-called “no contact” rule, applies to represented “persons.”  Per the Reporter’s Note to its 1999 adoption, the rule reflects that the fact that the ABA redrafted the rule 1995 to clarify that it “applied to all represented persons, not merely to parties in existing litigation.”

Question 2

Attorney called with an inquiry. I listened, then replied “the rule applies to statements of fact.  The Comment suggests it doesn’t apply in negotiations or to mere ‘puffery’ to opposing counsel.”

What rule?

  • A.    Trial Publicity
  • B.    Client Confidences
  • C.    Advertising
  • D.   Truthfulness in Statements to Others.   

There was a big hint in the intro.  It’s Rule 4.1

Question 3

True or false.

If a lawyer sells her practice, the rules require her to cease the private practice of law in the geographic area in which she practiced.

True.

I spoke at the Bankruptcy Holiday CLE on Friday. I highlighted this rule.  It’s in Rule 1.17(a).  A lawyer who sells her practice or an area of her practice must cease the private practice of law, or cease the private practice of law in the practice area that was sold. The rule doesn’t define “geographic area,” but Comment 4 could be read to suggest that it’s the entire state.  North Carolina has amended its version of Rule 1.17 to specify that a lawyer who sells her practice must cease the private practice of law in the geographic area that is within a 100 mile radius of where the practice was located. 

Per Comment 3, the rule doesn’t prohibit a lawyer who sells her practice from working as a staff attorney in a public agency, or for a legal services entity that provides legal services to the poor, or as in-house counsel.

Question 4

Lawyer called me with an inquiry. I listened, then said “yes, for the sole purpose of paying service charges or fees on the account, and only in an amount necessary for that purpose.”

What did Lawyer call to ask?

Lawyer called to ask whether Lawyer may deposit Lawyer’s own funds into trust . See, Rule 1.15(b).

Question 5

Speaking of Larry Bird and ethics, as I mentioned, Bird went to Indiana State. However, he started his career at a different university.  Recruited to play basketball there, he dropped out of school after a few weeks, overwhelmed by the size.

Had Bird stayed, he’d have played for a very famous coach.  The coach often found himself under scrutiny by the NCAA’s equivalent of “disciplinary counsel.” The coach once skipped an NCAA-mandated ethics seminar, stating:

“I would have rather listened to Saddam Hussein speak on civil rights than to have listened to some of the [NCAA officials} who have spoken on ethics to this point.”

Who is the coach?

Bobby Knight.

Image result for images of bobby knight

Bird dropped out of Indiana University.  He spent the next 9 months working as a garbage collector in his hometown of French Lick, before enrolling at Indiana State.  The rest, as they say, is history.

Had he stayed at IU, he’d have played for Knight.

 

Five for Friday #141

Welcome to Friday!

I rarely write or speak about the attorney advertising rules.  I’ve written and spoken on the legal ethics of puffery and paltering.

“141” gives me an opportunity to write about all three . . . and basketball! With readers getting a chance to play “bar counsel” at the end.

Today is Larry Bird’s birthday.  My childhood hero.

My earliest memory of Bird is of spending a day scowling at my mother.

It was March 26, 1979.  That night, Bird’s Indiana State Cyclones were to play Magic Johnson’s Michigan State Spartans in the NCAA Championship Game.  Apparently oblivious to the import of the contest, my mother dragged us to Lafayette Square in Washington D.C. to watch Menachem Begin & Anwar Sadat sign the Israel-Egypt Peace Treaty at a White House ceremony hosted by President Carter.

Mom, seriously?  Historic peace agreements over college basketball?  The gall! I was convinced we’d not make it back to the hotel in time to watch the game.

Six years later I was a freshman at Boston College, even more infatuated with Bird than I was as a 7th grader.  By then, he’d heroically led my beloved to Boston Celtics to the first 2 of what would be 3 NBA titles.  I didn’t like much about BC, and eventually transferred to UVM.  But, that freshman year, my anticipation grew with each moment that fall slowly ticked towards basketball season: I’d get to see Larry play in person for the first time.

The night finally arrived.  I don’t remember what game it was, but it was early in the season.  I took the Green Line from BC to North Station and headed to the ticket window.

I assume the ticket guy was trained in recognizing “sticker shock.” Because as I stood in stunned silence after our initial exchange, he said “I also have some obstructed view seats that are a lot cheaper.”

Yes! I asked what “obstructed view” meant.  Ticket Guy said something like “you probably won’t be able to see the banners.”

Here’s a picture of the old Boston Garden.  Note: the upper deck hangs over the lower bowl of seating.  While it’s not entirely obvious from the image, the rows in the lower bowl extended much further back than it appears.  The upper deck hung so low as to obstruct the rafters & the scoreboard from the view of people seated in the back rows of the lower bowl.

See the source image

Back to my story.

It took me a nano-second to respond “I’ll take one.”  I didn’t care that I wouldn’t be able to see the banners from my seat. I’d be able to see Larry!

Umm, not exactly.

To his credit, Ticket Guy was correct: upon arriving at my seat, my view of the banners was entirely obstructed by the underbelly of the upper deck.

So was my view of the scoreboard that hung over center court.

Here’s where it got even more interesting.

In reality, the upper deck didn’t “hang” over the lower bowl.  Rather, the upper deck was supported by giant steel girders. I couldn’t find a great picture, but this one will do:

See the source image

That’s the Garden mid-demolition.  On the right, a yellow girder is visible.  There’s also one on the left that’s covered in dust.

The girders were wider than it looks in the picture: slightly wider than my body.

How do I know?

Well, because someone decided that it’d be a good idea to put seats behind the girders. Not just put them there, but sell tickets to sit in them!

And the seats were not “sort of behind” the girders.  They were squarely behind them.  That’s right: that night, I had a perfect view of the mid-point of a 3-foot wide steel beam.

Was my view of the rafters obstructed by the balcony’s overhang? Yes, yes it was.

And my view of the court was COMPLETELY BLOCKED by the girder!

What say ye?

  • False advertising?
  • Puffery?
  • Paltering?
  • Buyer Beware?

If you chose the final option, you are banned from this blog forever!

Seriously, you are.  Stop reading now.  Go away.

My theory? Ticket Guy violated Rule 4.1.  The rule prohibits false statements of material fact.  Per Comment [2], “misrepresentations can occur by partially true but misleading statements or by omissions that are the equivalent of affirmative false statements.”

Maybe it’s just me, but  “you won’t be able to see even an inch of the court” would’ve been a nice addition to “you probably won’t be able to see the banners.”

There you have it.  That’s how Larry Bird’s birthday lends itself to an analysis of the legal ethics rules. He truly is The Legend.

Happy Birthday Larry!

See the source image

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

(this one happened again this week, so I’m going to keep asking)

Attorney called me with an inquiry.  Attorney said “Mike, I represent a witness.  The defendant’s attorney keeps contacting my client directly. I asked him to stop.  He said he doesn’t need my permission because my client is only a witness, not a party.  Is he right?”

What was my response?

  • A.   Yes, he’s right.
  • B.   The rule is unclear.
  • C.   The rule is unclear, but, by case law, no, he’s wrong.
  • D.  He’s wrong. The rule applies to any person represented in a matter.

Question 2

Attorney called with an inquiry. I listened, then replied “the rule applies to statements of fact.  The Comment suggests it doesn’t apply in negotiations or to mere ‘puffery’ to opposing counsel.”

What rule?

  • A.    Trial Publicity
  • B.    Client Confidences
  • C.    Advertising
  • D.   Truthfulness in Statements to Others

Question 3

True or false.

If a lawyer sells her practice, the rules require her to cease the private practice of law in the geographic area in which she practiced.

Question 4

Lawyer called me with an inquiry. I listened, then said “yes, for the sole purpose of paying service charges or fees on the account, and only in an amount necessary for that purpose.”

What did Lawyer call to ask?

Question 5

Speaking of Larry Bird and ethics, as I mentioned, Bird went to Indiana State. However, he started his career at a different university.  Recruited to play basketball there, he dropped out of school after a few weeks, overwhelmed by the size.

Had Bird stayed, he’d have played for a very famous coach.  The coach often found himself under scrutiny by the NCAA’s equivalent of “disciplinary counsel.” The coach once skipped an NCAA-mandated ethics seminar, stating:

“I would have rather listened to Saddam Hussein speak on civil rights than to have listened to some of the [NCAA officials} who have spoken on ethics to this point.”

Who is the coach?

 

 

 

Five for Friday #79

Welcome to Five for Friday #79!

So, 79’s got a lot going on.  I’ll always associate 79 with the iconic clash between Magic Johnson & Larry Bird.  Before taking their star turns in the Lakers-Celtics rivalry, the two first squared off in the championship game of the 1979 NCAA Basketball Tournament. Whether you love or hate March Madness pools, as Michael Wilbon explains, you probably have the 79 title game to thank or to blame..

The game was played on March 26, 1979.  I was just a kid, but I remember exactly where I was when I watched it:  Washington, D.C.  What was I doing there? My parents drove my brother & I to witness history!

No, not the game.  The game was played in Salt Lake City.

However, earlier that day in D.C., Menachem Begin & Anwar Sadat signed the Israel-Egypt Peace Treaty at a White House ceremony hosted by President Carter. Along with our parents, my brother and I watched from Lafayette Square.

I’m fairly certain that the worst seat for the Bird-Magic game was infinitely better than our vantage point for the signing ceremony.  But we were there!  For those of you who know my mom, ask her about the hotel she booked us for that trip.  Don’t stand too close when you ask.

Finally,79 is a Sexy Prime.

Get your heads out of the gutter! This is a family blog!

Sexy Primes are prime numbers that differ from each other by 6.  And 79 ain’t just any ol’ sexy prime.  Along with 67 & 73, 79 is a Sexy Prime Triplet.

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
  • Please use e-mail, not the “comment” feature
  • I’ll post the answers & Honor Roll on Monday
  • Please consider sharing the quiz with friends & colleagues
  • Hashtag it on social media as #fiveforfriday

Question 1

How many hours of pro bono publico legal services per year do Vermont lawyers have a responsibility to provide?

Question 2

Last Saturday, Attorney volunteered at a free legal clinic that was offered under the auspices of a program sponsored by a non-profit.  While there, Attorney answered questions from Tenant on issues related to Tenant’s eviction.

Attorney works at Firm.  On Monday, Attorney learned that her Law Partner represents Landlord in the eviction of Tenant.

Which is most accurate under Vermont’s rules?

  • A.   Attorney violated the rules, but Law Partner may continue to represent Landlord.
  • B.   Attorney violated the rules and Law Partner must withdraw from representing Landlord.
  • C.  Attorney did not violate the rules and Law Partner may continue to represent Landlord.
  • D.  Attorney did not violate the rules, but Law Partner must withdraw from representing Landlord.

Question 3

Shakedown 1979, cool kids never have the time.

Justine and Billy are in the process of divorcing.   Attorney has represented Justine since the divorce was filed 1 year ago.  Billy has represented himself.

Yesterday, Billy met with Lawyer to discuss potential representation in the divorce.  Lawyer is married to Attorney.  The two do not work in the same firm.

Which is most accurate under Vermont’s Rules of Professional Conduct?

  • A.   Lawyer may represent Billy.
  • B.   Lawyer may represent Billy if Justine agrees to Lawyer’s involvement. .
  • C.   Lawyer may not represent Billy.
  • D.   Ordinarily, to continue with their respective representations, Lawyer needs informed consent from Billy, and Attorney needs informed consent from Justine.

Question 4

Firm advertises as “the premier family law firm in the county.”  New Lawyer joins Firm. New Lawyer has limited experience in family law matters, but is assigned to handle Client’s contentious divorce.

Before New Lawyer joined Firm, Client and Firm had agreed, in writing, to a $10,000 flat fee.  Client paid the entire sum in advance and Firm deposited the funds into the Firm’s operating account.

Two months into the matter, Client learned that Firm’s managing partner plays in a weekly pick-up basketball game with Client’s Spouse.  Firm has screened Managing Partner from any involvement in Client’s matter.

If Client files a complaint against any lawyer in Firm, which issue would disciplinary counsel most likely consider to be a violation?

  • A.  The so-called “screen.”  Vermont’s rules do not allow screening and impute Managing Partner’s conflict to New Lawyer.
  • B.   The fee agreement & deposit of Client’s payment into the operating account
  • C.  Firm’s advertisement.
  • D.  New Lawyer’s inexperience.

Question 5

Sydney Carton was a brilliant lawyer who struggled with alcohol & depression.  His most famous client was Darnay.

While not explicitly clear from the historical record, I’m pretty sure that Darnay filed a disciplinary complaint against Carton.   In it, he alleged that Carton failed to provide him with competent & diligent representation in a criminal trial that resulted in a death sentence for Darnay.

The complaint became moot when Carton, who bore an uncanny resemblance to his client, switched places with Darnay just before the execution.  Carton’s final words before the guillotine fell:

  • “It is a far, far better thing that I do, than I have ever done; it is a far, far better rest that I go to than I have ever known.”

Name the book.

Bonus: name the lawyer who “mentored” Carton.

On a serious note, if you know a lawyer who, like Carton, is dealing with substance abuse or mental health issues, please read this.

the-quiz