Throwback Thursday: Don’t communicate with a represented person.

Lately, I’ve found myself drawn to a song that opens:

“Back when that blacktop was just a gravel road,
Back when that Walmart was just a fishin’ hole.”

If you’re anything like me, my guess is that you’ve experienced times when the first verse of the chorus – “I could use some back then right now” – was your prevailing sentiment.[1]

In that mood again today, I realized the song isn’t a bad way to set-up a prop I’ve not employed in ages: a Throwback Thursday post. So, tonight, I’m going back to August 8, 2023, and my post Don’t communicate with a represented person.

I’m sharing the post again because the no-contact rule and its contours continue to arise in inquiries. Plus, in that the post was part of the 50 Resolutions series, it most definitely qualifies as a Throwback. Not just to last August, but all the way to 1836!

Here it is.

Originally Posted on August 8, 2023

In November 2017, I posted The 50 Original Rules.  It’s a recap of the history of the conduct rules that apply to lawyers.

As best as I can tell, the earliest record of guidelines for attorney conduct in the United States is David Hoffman’s 1836 publication of his Fifty Resolutions in Regard to Professional Deportment.  My post includes each of Hoffman’s 50 resolutions.

Over 180 years later, it’s somewhat fascinating to me how many of Hoffman’s resolutions continue to resonate.  Many are embedded in the rules and our collective professional conscience.  Given my fascination, I resolved to blog about the continued relevance of Hoffman’s resolutions, taking them one at a time.  So far:

1. Don’t be a jerk.
2. Don’t switch sides.
3. Don’t overcomplicate trust accounting.
4. Deliver the file
5. Resolve to be a mentor
6. Be diligent
7. Manage expectations with candid legal advice

Today ends my four-year hiatus from this project.  The motivation to get back at it comes from David Kluft, Assistant Bar Counsel in Massachusetts.  Last week, David posted this to LinkedIn:

Indeed, Hoffman’s 43^rd resolution is strikingly similar to V.R.Pr.C. 4.2, which reads:

• “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.”

I blog today to share thoughts on the so-called “no-contact” rule.  In no particular order:

Persons or Parties?  Both the text and Comment [2] make clear that the rule applies whenever a “person” is represented.[2]  It surprises me how often lawyers think that the rule applies to represented “parties.”  Why? Because that it applies to all represented persons is not a new concept in Vermont.[3]

How do I know the person is represented?  The rule prohibits communication with a person who a lawyer “knows” is represented by counsel. Comment [8] indicates that the rule applies when “the lawyer has actual knowledge of the fact of the representation, but such actual knowledge may be inferred from the circumstances.”[4]

What if I don’t learn that the person is represented until after we’ve started communicating?  Immediately stop communicating.  Do not try to convince yourself that it would be rude or impolite to do so.  Indeed, the Vermont Supreme Court has rejected the “I didn’t want to be perceived as rude” defense.[5]

What if the represented person initiates the communication?  It doesn’t matter, immediately terminate contact.  See, V.R.Pr.C. 4.2, Comment [3].[6]  As stated above, don’t try to convince yourself that it would be rude or impolite to stop immediately.

But we didn’t talk about anything substantive.  It doesn’t matter. Who says it doesn’t matter? The Vermont Supreme Court.[7]

No stalking horses. Comment 4 states that a “lawyer may not make a communication prohibited by this rule through the acts of another. See Rule 8.4(a).”[8]

Be wary of training a parrot.  Comment [4] also states that “parties to a matter may communicate directly with each, other and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make.” 

With respect to advising a client about a communication that the client is entitled to make, I’ve taken the position that there’s a difference between “providing advice” and “providing a script.”  Others might disagree. For now, I’m not aware of a Vermont disciplinary opinion or advisory opinion that addresses the issue.  However, I agree with the position approved by the Virginia Supreme Court in Legal Ethics Opinion 1890:

• “Represented Persons May Communicate Directly With Each Other Regarding the Subject of the Representation, but the Lawyer May Not Use the Client to Circumvent Rule 4.2. Although their lawyer may advise against it, a represented party may communicate directly with a represented adversary. See Comment [4] to Rule 4.2. However, a lawyer may not use a client or a third party to circumvent Rule 4.2 by telling the client or third party what to say or “scripting” the communication with the represented adversary.”[9]

What if a represented person asks me for a second opinion?  The rule applies to a lawyer who is representing a client in a matter.  Thus, if someone who is represented in the matter contacts you for a second opinion and you are not already representing someone else in the matter, you may provide the second opinion without seeking consent from the person’s lawyer.[10]  Indeed, by notifying the person’s lawyer that their client sought a second opinion, you arguably violate V.R.Pr.C. 1.6.

If you’re not sure, you can ask a court for permission.  Here’s Comment [6]:

• “A lawyer who is uncertain whether a communication with a represented person is permissible may seek a court order. A lawyer may also seek a court order in exceptional circumstances to authorize a communication that would otherwise be prohibited by this rule, for example, where communication with a person represented by counsel is necessary to avoid reasonably certain injury.”

It’s not uncommon for lawyers to encounter a person who claims to be represented but who will not disclose their lawyer’s identity. When this happens, I think it’s safest to inform the person “I’m not authorized to communicate with you directly, please have your lawyer contact me.”  Sometimes this is of no help.  Rather, no lawyer reaches out, the person continues to make contact on their own, and there is a deadline that requires action on behalf of a client.

If it’s a litigation matter, Comment [6] provides an option.  Another option, and one that would also be available in non-litigation situations, is this.  

Again, as stated above, the rule prohibits communication with a person who a lawyer “knows” is represented by counsel, and knowledge can be inferred from the circumstances. I’d argue that, at some point, the person’s continued “I’m represented but I’m not going to tell you by who and I’m going to keep contacting you directly” morphs to a situation in which the lawyer cannot be deemed to “know” that the person is represented by counsel.  Rather, the inferences to be drawn from the circumstances in which no lawyer has reached out or been identified are that no lawyer exists, and that the person is not represented by counsel.[11]  Again, others might disagree with me.

What about employees of represented organizations?  Comment 7 addresses who is off limits and who is fair game.

• “[7] In the case of a represented organization, this rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. Consent of the organization’s lawyer is not required for communication with a former constituent. If a constituent of the organization is represented in the matter by his or her own counsel, the consent by that counsel to a communication will be sufficient for purposes of this rule.”

Does the rule apply to a self-represented lawyer?  In 2022, the ABA Standing Committee on Ethics and Professional Responsibility answered “yes” in Formal Opinion 502.  I blogged about the opinion here.  In the post, I expressed appreciation for the conclusion, but admitted to being drawn to the dissent.[12]

CC’ing clients on emails to other counsel.  Regular readers know that I’ve long warned that a lawyer who copies a client on an electronic communication to another lawyer has consented to the other lawyer replying to all.  Indeed, last November, I posted this blog after the ABA reached that exact conclusion.  Remember, a more important issue in this situation might be whether the sending lawyer commits misconduct by exposing the client to an unnecessary risk of mistakenly replying to all.

As always, let’s be careful out there.

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[1] The song is Tyler Hubbard’s Back Then Right Now.

[2] “This rule applies to communication with any person who is represented by counsel concerning the matter to which the communication relates.”  V.R.Pr.C. 4.2, Cmt. [2].

[3] The rule was drafted in 1999. As drafted, the rule effectively codified this 1994 advisory opinion from the Vermont Bar Association.

[4] See also, V.R.Pr.C. 1.0(f)  (“‘knowingly’, ‘known,’ or ‘knows’ denotes knowledge of the fact in question. A person’s knowledge may be inferred from the circumstances.”)

[5] In re Fink, 2022 VT 63, ¶ 18 (“Next, respondent argues that ending the call after husband’s statement “would have been both a rude and an unnatural way to conclude the conversation.” We are unpersuaded by this argument. Respondent would have been well within the confines of Rule 4.2 to express surprise at husband’s representation status, inform husband that the conversation must end due to respondent’s ethical obligations, and indicate that respondent would thereafter communicate through husband’s lawyer. Suddenly hanging up the phone without reason might be considered rude and unnatural, but respondent had both a valid reason and the inherent convenience of laying the blame for any perceived slight upon the professional conduct rules. Respondent’s stated desire to avoid rudeness simply does not outweigh his ethical obligations.”)

[6] “[3] The rule applies even though the represented person initiates or consents to the communication. A lawyer must immediately terminate communication with a person if, after commencing communication, the lawyer learns that the person is one with whom communication is not permitted by this rule.”

[7]  In re Fink, 2022 VT 63, ¶ 17 (“Respondent first asserts that he did not violate Rule 4.2 because “nothing of substance related to the divorce was discussed.” However, the rule prohibits “communications with any person who is represented by counsel concerning the matter to which the communication relates.” V.R.Pr.C. 4.2 cmt. [2]. We agree with the hearing panel that Rule 4.2 does not on its face distinguish between substantive and nonsubstantive content in its prohibition of communicating with a represented party. The conduct at issue here is the communication about the divorce after respondent was told that husband wanted to talk with his lawyer, not respondent’s initial placing of the call. Respondent’s argument therefore fails.”

[8]  Rule 8.4(a) is the rule that prohibits a lawyer from violating the rules through the act of another.

[9] The Minnesota Office of Lawyers Professional Responsibility articulated a similar position here.

[10] See, V.R.Pr.C. 4.2, Reporter’s Notes to the 2009 Amendment.

[11] The situation in which a person who claims to be represented by counsel but refuses to identify counsel is markedly different than the situation that arose in In re Fink, 2022 VT 63.

[12] In 1990, the former Professional Conduct Board issued its very first opinion, PCB Decision 1. The PCB admonished a self-represented lawyer after concluding that the lawyer “had improperly communicated with a represented party of adverse interest.” For no reason other than to post a picture of what I looked like in 1990, I blogged about the decision here.  I pointed out that the 1990 decision was decided under the Code of Professional Responsibility. At the time, the Code made clear that the no-contact rule applied to a self-represented lawyer.  In 1999, the Code was replaced by the Vermont Rules of Professional Conduct. As I blogged, unlike the old Code, the comments to current Rule 4.2 do not address whether the rule applies to a self-represented lawyer.  Thus, to the extent that the PCB relied on language that was not carried over when we switched from the Code to the Rules, I wonder whether the decision retains any precedential value.

Monday Morning Honors #299

Happy Monday! 

While I’d prefer it to remain so the entire day, I savor the bright sunny mornings that we know will soon give way to rain.  No – that wasn’t a metaphor.  Merely an observation based on the fact of the forecast.

Friday’s questions are here.  The answers follow today’s Honor Roll.  Kudos to The First Brother for using Question 5 as motivation to watch the top 3 the ABA’s list of the 25 Greatest Legal Movies of All-Time.

For those of you following the Karen Read trial, buckle up!  The cross-examination of Brian Albert could get interesting.  Will today be when the so-called “third party culprit” defense kicks into overdrive?

Finally, a special welcome to the Honor Roll to two judges: Jack Lu, retired justice of the Massachusetts Superior Court, and, for the first time as sitting judge, the Honorable Susan McManus!

Honor Roll

• Karen Allen, Karen Allen Law
• Penny Benelli, Dakin & Benelli
• Beth DeBernardi, Administrative Law Judge, Vermont Department of Labor
• Benjamin Gould, Paul Frank + Collins
• Robert Grundstein
• Glenn Jarrett, Jarrett/Hoyt
• Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
• Douglas Keehn, Assistant Attorney General, Medicaid Fraud & Residential Abuse Unit
• Patrick Kennedy, The First Brother, AI Network Engineer, Amazon Web Services
• John T. Leddy, McNeil Leddy & Sheahan
• Honorable Jack Lu, Retired Associate Justice, MA Superior Court
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Honorable Susan McManus, Vermont Superior Judge
• Jeffrey Messina, Flynn Messina Law
• Hal Miller, First American Title Insurance Company (and the shores of SoCal)
• Patrick Olmstead, Patrick Olmstead Law
• Jonathan Teller-Elsberg, Staff Attorney, New Hampshire Legal Assistance
• Jason Warfield, Jason Warfield Family Law & Mediation
• Peter Young, General Counsel, Vermont Rail System

ANSWERS

Question 1

If continued representation of a client will result in a violation of the Rules of Professional Conduct, a lawyer ___________.

• A.   must withdraw from the representation.  V.R.Pr.C. 1.16(a)(1).
• B.   may withdraw from the representation.
• C.   must abide by the client’s decision as to whether the lawyer should withdraw from the representation.
• D.  B or C.

Question 2

Which is in a different rule than the others?

• A.   whether to settle a civil claim.
• B    whether to accept a plea offer in a criminal case.
• C.   whether to testify in a criminal case.
• D.   whether two matters are the same or substantially related.

Options A, B, and C are part of Rule 1.2, the rule that addresses the allocation of decision-making authority between lawyer and client.  Option D is in Rule 1.9(a), the rule that sets out a lawyer’s duties to former clients.

Question 3

Lawyer contacted me with an inquiry. I listened, then responded:

• “The rule says that you can’t do so unless the client gives informed consent or unless doing so is impliedly necessary to carry out the representation.”

Given my response, Lawyer and I were discussing the rule that prohibits a lawyer from doing what unless one of the exceptions is present?

Disclosing (otherwise confidential) information relating to the representation of the client.  See, V.R.Pr.C. 1.6.

Question 4

When a lawyer decides to leave a law firm to join another, which is most accurate?

• A.  There is no duty to provide advance notice to the law firm.
• B.   Two weeks’ notice is the generally accepted minimum.
• C.   Four weeks’ notice is the generally accepted minimum.
• D.   The reasonableness of the notice provided will depend on the specific circumstances.  See, this blog post.

Question 5

I’ve used this question before. I’ve also used it during multiple live quizzes and seminars.  Alas, it’s one of my favorite questions, I failed to search for a good Question 5 during the week, and I don’t have the time to search for one now. So, here goes nothing.

In 2019, the ABA updated its list of the 25 Greatest Legal Movies of All-Time. Two of the top 3 are set in the same state.

Name the state and the two movies.

The state? Well, as Walker Hayes sings, “just tryna keep my wife, from figuring out, that I married up, and she married way, way down in Alabama where they love Nick Saban.” The movies are To Kill a Mockingbird and My Cousin Vinny. The entire list is here.

ABA cautions lawyers who use listservs to be mindful of the duty of confidentiality.

I’ll start by trying to stave off the snowball that I expect to gather steam as it barrels downhill in my direction while evolving into an avalanche.

No, this post is not meant to offer a hard & fast rule that lawyers can’t use listservs. 

Rather, it’s meant to share guidance from others – much smarter than I – who recently concluded that when using listservs lawyers must be mindful of the duty of confidentiality that they owe to their clients.

What you do from here is up to you. My suggestion? See the picture.

Two days ago, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility released Formal Opinion 511: Confidentiality Obligations of Lawyers Posting to Listservs.[1] Here’s the first sentence of the concluding paragraph:

• “Rule 1.6 prohibits a lawyer from posting comments or questions relating to a representation to a listserv, even in hypothetical or abstract form, without the client’s informed consent if there is a reasonable likelihood that the lawyer’s posts will disclose information relating to the representation that would allow a reader then or later to recognize or infer the identity of the lawyer’s client or the situation involved.”

The next sentence clarifies that:

• “A lawyer may, however, participate in listserv discussions such as those related to legal news, recent decisions, or changes in the law, without a client’s consent if the lawyer’s contributions will not disclose information relating to a client representation.”

Now, let’s back up to go over the rule.

The opinion focuses on ABA Model Rule 1.6(a) which states:

• “(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).”

Vermont’s Rule 1.6(a) is quite similar:

• “(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is required by paragraph (b) or permitted by paragraph (c).”

For purposes of this post and the new ABA Formal Opinion, paragraph (b) of the Model Rule and paragraphs (b) and (c) of Vermont’s rule are not relevant. Rather, the focus is on the intersection of:

• A lawyer’s posts to listservs; and,
• Rule 1.6(a)’s prohibition on disclosing information relating to the representation of client unless the client gives informed consent to the disclosure or unless the disclosure is impliedly authorized to carry out the representation.

To avoid a post that is far too long, I’ll restrict myself to sharing’s the opinion’s conclusions and advising lawyers to read the entire opinion for a better understanding of the analysis.

Per the opinion:

1. “Lawyers may disclose information relating to the representation with the client’s informed consent.”[2]
2. “Lawyers who anticipate using listservs for the benefit of the representation may seek to obtain the client’s informed consent at the outset of the representation, such as by explaining the lawyer’s intention and memorializing the client’s advance consent in the lawyer’s engagement agreement.”[3]
3. “In this opinion, the question presented is whether lawyers are impliedly authorized to reveal similar information relating to the representation of a client to a wider group of lawyers by posting an inquiry or comment on a listserv. They are not.”[4]

I understand that the opinion is likely to concern lawyers who use listservs.  Indeed, a lawyer who used to do my job (for a long time) in another state expressed concern on social media that the opinion might have a “chilling effect” on lawyers who use listservs.

However, the opinion does not conclude that the use of listservs is unethical.  Indeed, the opinion specifically recognizes that “it bears emphasizing that lawyer listservs serve a useful function in educating lawyers without regard to any particular representation.”[5] Nevertheless, “before any post, a lawyer must ensure that the lawyer’s post will not jeopardize compliance with the lawyer’s obligations under Rule 1.6.”[6]

As always, let’s be careful out there.

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[1] An ABA Journal feature announcing the opinion’s release is here.

[2] ABA Formal Opinion 511, p. 2.

[3] ABA Formal Opinion 511, fn. 9.  Which goes on to state that “the lawyer’s initial explanation must be sufficiently detailed to inform the client of the material risks involved. It may not always be possible to provide sufficient detail until considering an actual post.” Footnote 15 provides even more detail: “When seeking a client’s informed consent to post an inquiry on a listserv, the lawyer must ordinarily explain to the client the risk that the client’s identity as well as relevant details about the matter may be disclosed to others who have no obligation to hold the information in confidence and who may represent other persons with adverse interests. This may also include a discussion of risks that the information may be widely disseminated, such as through social media. A lawyer should also be mindful of any possible risks to the attorney-client privilege if the posting references otherwise privileged communications with the client. Whether informed consent requires further disclosures will depend on specific facts.”

[4] ABA Formal Opinion 511, p. 4. See also, fn. 10: “Comment 5 to Rule 1.6 explains that a lawyer is impliedly authorized to make disclosures ‘when appropriate in carrying out the representation.’ In many situations, by authorizing the lawyer to carry out the representation, or to carry out some aspect of the representation, the client impliedly authorizes the lawyer to disclose information relating to the representation, to the extent helpful to the client, for the purpose of achieving the client’s objectives.”

[5] ABA Formal Opinion 511, p. 6.

[6] ABA Formal Opinion 511, p. 6.

Related Posts

• Hey Lawyers! STFU!
• Can’t keep quiet? Try harder.
• Responding to a client’s negative online criticism? Think twice.
• Ethics tips for lawyers who share office space
• Court upholds order prohibiting Drew Peterson’s former lawyer from disclosing information about Peterson’s ex-wife
• Conflicts of interest involving former clients

Thoughts on the minimum amount of notice a departing lawyer must provide to a law firm.

Last month, a lawyer contacted me with an inquiry.

• “Mike, I’m switching firms. How much notice do I have to give to my firm?” 

I’ve blogged many times on the legal ethics issues that arise when a lawyer leaves a law firm.  The posts have focused on the requirement that the departing lawyer and the firm notify clients that their options are to follow the departing lawyer, stay with the firm, or choose new counsel altogether.[1]  The posts have also addressed questions such as who provides the notice, to whom, and what must the notice include.

For reasons that elude me, I’ve never blogged about the question that the lawyer asked last month. So, this afternoon, I’m using my response to the lawyer to address the issue, as well as to share a reminder about the inquiry process.

The question “how much notice must I give my firm?” isn’t uncommon. For the past several years, I’ve directed lawyers to ABA Formal Opinion 489. [2]  In short, on the minimum notice issue, the opinion concluded that such requirements “cannot be fixed or pre-determined in every instance.”

Be careful how much you read into that phrase.

Indeed, the ABA opinion’s synopsis states:

• “Firms may require some period of advance notice of an intended departure. The period of time should be the minimum necessary, under the circumstances, for clients to make decisions about who will represent them, assemble files, adjust staffing at the firm if the firm is to continue as counsel on matters previously handled by the departing attorney, and secure firm property in the departing lawyer’s possession. Firm notification requirements, however, cannot be so rigid that they restrict or interfere with a client’s choice of counsel or the client’s choice of when to transition a matter.”

In other words, while I know that most of you would prefer a hard & fast answer, I can’t give you one.  As far as notice goes, what’s reasonable will depend on the circumstances.

Indeed, earlier this year, the Professional Ethics Committee of the State Bar of Texas issued Opinion 699.  The opinion presents four questions, including:

• “Through an employment agreement between a law firm and its lawyers, may the law firm impose a minimum departure notice period for lawyers who wish to depart the law firm?”

More specifically, the Texas opinion analyzes whether a law firm may enforce an employment agreement against a “lawyer [who] has given 30 days’ notice of departure and [who] disagrees with the employment agreement’s 90-day minimum departure notice provision.”

Knowing my readers, I’ll cut to the chase.  The opinion concludes that:

• “Although a law firm may require a reasonable minimum departure notice, such requirements must not be set in stone.”

It went on:

• “The specific circumstances will dictate whether a minimum departure notice period is reasonable, but a period of two to four weeks is ordinarily defensible.”[3]

Now, let’s return to last month’s inquiry.

When I shared the Texas opinion with the lawyer, the lawyer said something like “Great, thanks. So, I can tell my firm that you said that 2 weeks is enough.”

Umm, no.  You cannot tell your firm that I said that!

First, as I blogged here last week, I don’t give “yes” or “no” answers. Nor do I pre-approve or prohibit conduct.

In other words, by directing the lawyer to the Texas opinion, I was not suggesting that 2 to 4 weeks’ notice will necessarily be deemed reasonable. That is, I don’t know whether Disciplinary Counsel, a PRB hearing panel, or the Vermont Supreme Court – the ultimate arbiter – would conclude that a “period of two to four weeks is generally defensible.”[4]

Indeed, from a risk management perspective, it strikes me as more sensible to focus on two other aspects of the Texas opinion: (1) its statement that “specific circumstances will dictate whether a minimum departure notice period is reasonable;” and, (2) its use of the word “excessive” to describe notice requirements that are not reasonable.

Again, I understand that lawyers aren’t thrilled when I respond to inquiries with shades of gray. However, on this specific question, what’s reasonable will depend on the circumstances.  Moreover, it strikes me that the impact on affected clients is necessarily relevant to the analysis.  And, what’s reasonable given the status of one client’s matter might not be reasonable given the status of another client’s matter.

Similarly, I understand that law firms want to avoid abrupt departures and I agree that firms “have a legitimate basis for requiring reasonable notice of a lawyer’s planned departure [in order] to ensure that client matters transition smoothly and the clients’ interests are protected.”[5]  

Still, lawyers are allowed to change jobs and “[a]n agreement restricting the right of lawyers to practice after leaving a firm not only limits their professional autonomy but also limits the freedom of clients to choose a lawyer.”[6] In other words, when it comes to minimum notice requirements, what might be reasonable for a firm to expect from one departing lawyer, might be excessive – or unreasonable – if imposed upon a different departing lawyer.

As always, let’s be careful out there.

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[1] This post discusses “notice” and links to two others that do the same.

[2] American Bar Association, Standing Committee on Ethics & Professional Responsibility, Formal Opinion 489, Obligations Related to Notice When Lawyers Change Firms (December 2019).  I was surprised (but pleased) to learn that the opinion remains publicly available for free.  Many of the ABA’s formal opinions eventually are removed from the public domain.  However, there remains a live link to FO 489 in this article in which the ABA Journal announced the opinion’s release.

[3] In reaching its conclusion, the Texas opinion cites two sources. The first is Rule 5.06 of the Texas Rules of Professional Conduct.  The rule is identical to V.R.Pr.C. 5.6.  Both prohibit employment agreements that restrict a lawyer’s right to practice following the termination of the employment agreement.  Per the Texas opinion:

• “Enforcement of a minimum departure notice requirement beyond a reasonable period serves only to prevent the departing lawyer from competing and unduly interferes with the rights of clients to join that lawyer at a new practice if they decide to do so.”

[4] I’ve not done exhaustive research on this topic. Still, as far as I recall, the Texas opinion is the first advisory opinion I’ve read that concludes that a specific length of notice as “ordinarily defensible.”  As opposed to court decisions issued after parties have litigated the reasonableness of the notice that a departing lawyer provided.

[5] Texas Opinion 699, p. 2.

[6] V.R.Pr.C. 5.6, Cmt. [1].

RELATED RESOURCES

                Advisory Ethics Opinions

• Board of Professional Responsibility of the Supreme Court of Tennessee, Opinion 2023-F-169: Ethical of departing attorneys and their former firms to notify clients of their options when an attorney leaves a firm (August 2023)
• New York City Bar Association, Formal Opinion 2023-1: Ethical Obligations of Lawyers and Law Firms Related to Attorney Departures (June 2023)
• North Carolina State Bar, Formal Ethics Opinion 2021-6: Departing Lawyer’s Email Account (January 2022)
• Ohio Board of Professional Conduct, Opinion 2020-06: Lawyer Departing a Law Firm (September 2020)

Blog Posts by Kennedy

• Do employment agreements that require a departing lawyer to compensate a firm for clients who follow the lawyer violate the Rules of Professional Conduct
• The story of two Florida lawyers who were suspended for misconduct associated with leaving a law firm prompts me to share some thoughts
• Leaving a Law Firm: Breaking Up is Hard to Do
• Leaving a Law Firm: Update
• Leaving your law firm? What NOT to do
• Need a refresher on leaving a law firm? A Florida jury awarded $2.3 million to a firm after an associate improperly departed with clients

Other

• Changing Firms: Ethical Responsibilities For Lawyers And Law Firms, State Bar of Michigan, Ethics Guidebook (July 2023)
• Exit Music (For A Firm): Some Ethical Implications Of Leaving A Law Firm, Massachusetts Board of Bar Overseers, (Joseph M. Makalusky, Assistant Bar Counsel, July 2020)
• Ethics Obligations When a Lawyer Leaves a Law Firm, Missouri Bar, (Sandra Colhour, March/April 2020)
• Leaving a Law Firm: A Guide to the Ethical Obligations in Law Firm Departure, Illinois Attorney Registration and Disciplinary Commission (Revised, January 2020)
• New ABA Ethics Opinion on Obligations When Lawyers Make Lateral Moves, Business Law Today, (Keith R. Fisher, January 2020)
• ABA Issues New Formal Opinion on Changing Law Firms, Louisiana Legal Ethics Blog, (December 20, 2019)

States that have Adopted Rules

• Rules Regulating the Florida Bar, Rule 4-5.8
• Virginia Rules of Professional Conduct, Rule 5.8

Five for Friday #298

Happy Friday!  And welcome to the 298^th legal ethics quiz![1]

Last week’s intro generated a fantastic response. I loved learning about your collections, including those that, for various reasons, were disposed of by someone else without notice to you. Indeed, next week, as part of Well-Being Week in Law, I intend to share a list of the things that readers collect and used to collect.

With your responses fresh in mind, I was struck by a thought as I cleaned my house & garage last weekend.  Specifically, that in addition to our cherished collections, our lives also include “collections” of things that we never wanted or meant to keep.  The thought popped into my head as, yet again, I found myself sweeping and vacuuming pine needles.

When it comes to Christmas trees, I’m decidedly old school. I will never ever get together with an artificial tree. I prefer the real thing and find them spectacular.

I’m also decidedly rigid on my Christmas tree rules.

• My trees remain in my garage for a minimum of two days after being purchased, thereby assuring they’ve fallen out before I start to decorate. 
• They go into my house at least two weeks before Christmas, thereby giving me sufficient time to get into the spirit of the season.  
• The “Drummer Boy” ornament that my mom gave me when I was a young child goes on first and gets the most prominent spot. 
• No stars or angels for me: the tree is capped by a Boston Celtics stocking. 
• Finally, to assure I remain in the spirit of the season as long as possible without creating a fire hazard, my tree remains up at least until the College Football National Championship Game, which is usually the 2^nd Monday in January.

Back to pine needles.

I fully understand that dragging a real tree in and out of my house will leave needles behind. I’m also aware that needles will fall off throughout the month (or so) that the tree is up. 

What drives me bonkers, however, is how long after Christmas I continue to find needles when I clean!

Am I the world’s best housekeeper? Not even close.  But, trust me, I can sweep, I can vacuum, and it’s not like I go weeks without doing either. Still, as I did every other time I cleaned so far this year, I found pine needles last weekend. They’re something I manage to collect, without having any desire to do so.

Which, with last week’s intro in mind, made me wonder, what else do I have that I never meant to accumulate?

Fortunately, not much. As I’ve aged and moved, I’ve gotten better at ridding myself of the useless and extra.[2] That said, when I took a break from cleaning to make another pot of coffee, I realized that I have an absurd number of coffee mugs.  Nineteen to be exact. 

19!! Coffee mugs!! I live alone and never invite people over for coffee![3]

So why do I have 19 mugs?  To me, it’s a mystery. To Papa, it’d be ridiculous.

Anyhow, if this moves you to share whatever it is that you wish you didn’t have so many of, feel free. I’d love to learn! 

In the meantime, onto the quiz![4]

Rules

• None.  Open book, open search engine, text-a-friend.
• Exception:  Question 5.  We try to play that one honestly.
• 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@vtcourts.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

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

The word “client” is not one of my 7 Cs of Legal Ethics.  I suppose it should be!

Anyhow, there are several rules whose titles reference specific types of clients.  Which is NOT a type of client specifically mentioned in the title to a rule?

• A.            Current.
• B.            Deceased.
• C.            Former.
• D.            Prospective.

Question 3

Attorney contacted me with an inquiry.  I listened, then responded:

“There are 3 exceptions.  One is if the testimony relates to an uncontested issue. Another is if the testimony relates to the nature and value of legal services rendered in the case.  The last is if disqualification will result in substantial hardship to the client.”

Given my response, Attorney contacted me because Attorney __________:

• A.  reasonably believed that they had become a necessary witness.
• B.  mid-trial, learned that a former client would be the next witness to testify for the opposing party.
• C.  had been subpoenaed to give evidence against a former client.
• D.  All the above.  The rule mentions each scenario.

Question 4

Vermont has a rule that is not in the ABA Model Rules of Professional Conduct. Following the ABA’s lead, most jurisdictions have either decided not to adopt the rule or repealed it.  Jurisdictions that do not have the rule typically prosecute the conduct that the Vermont rule prohibits – basically, extortion – under a rule that prohibits a lawyer from engaging in conduct that is related to a crime.

Here is a comment to the Vermont rule.  Fill in the blanks. A different word goes in each.

“The ______ adjudicative process is primarily designed for the settlement of disputes between parties, while the                   process is designed for the protection of society as a whole.”

Question 5

Contains a spoiler!!

Like most jurisdictions, Vermont has a rule that prohibits a lawyer from having a sexual relationship with a client.  There is an exception for sexual relationships that pre-date the attorney-client relationship.

Last summer, in the second season of a popular show, a lawyer named Mickey danced around the rule.  After having a brief sexual relationship with Lisa – a chef & restaurant owner – Mickey represented Lisa when she was charged with murder.  After a jury announced a “not guilty” verdict, Lisa “fired” Mickey so that they could resume their personal relationship.

From the Netflix show and the series of books on which it is based, we know that Mickey has no problem taking on tough cases but has one hard & fast rule related to client selection: he will never represent someone who has hurt a child.

Name the Netflix show in which Mickey is an attorney who has an unconventional “office.”

---

[1] For those of you signed up for automatic notifications, I apologize for this morning’s exceedingly rare non-quiz Friday post.

[2] Of course, I still have the following souvenirs from my childhood: my baseball gloves, hockey stick, aluminum baseball bat, tennis racket, and Wiffle Ball bat.  Why do I have them? Who knows.  Every time I endeavor to get rid of them, I tell myself “Self, you never know when you might want to use this.” And I always agree with myself.

[3] I’m embarrassed to add that it’s not at all uncommon for my dishwasher or kitchen sink to have 5 or 6 dirty mugs. Apparently, I’m incapable of using the same mug as I did for the previous cup.

[4] PS: While I like Fierceness to win and think that Honor Marie and Just a Touch will run well, I’m not making Kentucky Derby picks this year. Last year, my 3 picks didn’t fare too well. Two scratched, and the third finished 7th.  Meanwhile, former VBA President Elizabeth Kruska’s picks finished 1^st, 3^rd, and 4^th. Now that’s competence! Anyhow, this ABA Journal story about the Debry interested me. By analogy, it’s akin to the client of a lawyer whose license has been suspended asking for a court order allowing the lawyer to appear.

A thought on how NOT to verify changes to wire instructions.

Tomorrow I’m presenting a CLE for First American Title Insurance Company. The topic is “ethical traps for real estate practitioners.”  My presentation will include a reminder to verify changes to wire instructions. [1] It will also include thoughts on how best to verify changes.  It’ll go something like this:

In my opinion, the Vermont Rules of Professional Conduct impose a duty to act competently to safeguard client funds.  This includes taking reasonable steps to protect against inadvertently disbursing funds to a scammer. 

What are reasonable steps?

One is second-factor authentication. I first discussed it here in 2018. In the post, I quoted Andy Mikell. At the time, Andy was Title Counsel for Vermont Attorneys Title Corporation.  Andy noted:

• “We are telling folks that the ONLY appropriate 2^nd factor authentication method is for the ‘Wiring Firm’: (a) to initiate the verification call; (b) to a phone number that they independently obtained/verified. In other words, it is NOT acceptable: (a) to receive a confirmatory phone call or (b) to call a phone number in the email which contains the requested wire change.”

Among others, the North Carolina State Bar shares Andy’s opinion.  Cautioning law offices about emails that include wire instructions, the North Carolina State Bar’s Lawyer’s Trust Account Handbook suggests that law offices:

• “Verify all emailed wire instructions via a second method of communication that the lawyer knows is authentic (such as a phone number listed in the client’s file). Do not call a phone number provided via email, because that number could be the hacker’s number.”

Until this morning, I intended to stop there.  Indeed, as I noted in this post last summer, “the suggestion not to call a number that’s in the email is self-explanatory.” 

It turns out that it might not be as self-explanatory as I thought. 

Over lunch, I read this story in the ABA Journal. Reuters has coverage here. The malpractice complaint that is the subject of each story is here.

I don’t know the full story.  As such, I have no opinion on the conduct that the malpractice complaint attributes to the lawyer and law firm.  Indeed, the law firm gave this statement to the ABA Journal:

• “Naturally, all of the facts are not contained in the filed complaint. We will be defending the firm as the case moves forward and will have nothing further to add at this time.”  

Still, in both the next line and tomorrow’s seminar I’ll share a thought on how NOT to go about verifying a change to previously agreed upon wire instructions:

• “Don’t attempt to confirm the change by responding to the email that includes the new instructions.”

As always, let’s be careful out there.

---

[1] I first warned law offices to be wary of changes to wire instructions here in 2017. Over the years, I’ve followed up here, here, here, here, here, here, here, here, and here. 

Related Posts

• Lawyers reprimanded for failing to verify changes to wire instructions
• FBI issues PSA with tips to protect against scams
• Trust Account Scam Targets Vermont Lawyers
• Law offices should learn to identify trust account scams & discuss those scams with clients
• Timely reconciliation continues to protect Vermont law firms against trust account scams
• Beware the severance payment scam
•  Timely reconciliation alerts firm to trust account fraud
• A lawyer’s professional responsibility to learn to identify common trust account scams
• Trust Account Scams Continue
• Trust Account Scams: Change in Wire Instructions? CAUTION!!!!

A Tool to Track Court Orders & Local Rules on the Use of AI.

In January, the Duke Center on Law & Tech launched Responsible AI in Legal Services (RAILS). The initiative’s mission is to:

• “Bring together a cross-industry group of leaders (judiciary, corporations, law firms, tech providers, access to justice orgs, etc.) to support the responsible, ethical, and safe use of AI to advance the practice of law and delivery of legal services to all.”

Although I only learned about RAILS today, I’m already appreciative of the tab Resource: AI Orders.  It includes a link to the RAILS AI Use in Courts Tracker.  The Tracker “contains court orders, local rules, and guidelines from the U.S. and other countries [and] allows for search and filtering capabilities based on factors such as jurisdiction, date, and other key terms.”[1]

I’m not aware of any court orders, local rules, or guidelines having been issued in Vermont. So, why is the tracker important?

The Honorable Paul Grimm is a retired federal judge and current law professor at Duke Law School.  The RAILS resource page includes words from Judge Grimm. 

First, Judge Grimm noted:

• “the headlines in the last year in particular have included many stories about litigants and attorneys who faced or were subjected to sanctions for having filed court papers prepared by GenAI applications that contained citations to fictitious legal authority, or cited actual cases, but which did not actually support the argument for which they were cited.”

He added:

• “These were entirely self-inflicted injuries because no lawyer or party should file any court paper without independently confirming the accuracy of the facts and legal authority cited.”[2]

Finally:

• “In reaction to these lapses, an increasing number of judges and courts have issued a profusion of standing orders, pretrial orders, court rules, general orders, and case management orders that imposed various obligations on litigants and counsel to certify the use of AI technology and the accuracy of their filings. While well intentioned, the sheer number of these orders and lack of uniformity their provisions can cause considerable confusion to litigants and practitioners who may have to appear in many different courts. In this dynamic environment, what is needed is a ‘one-stop’ source for finding all of these orders that will allow litigants and attorneys to make sure they are aware of, and comply with, these court requirements.” (emphasis in the original).

While most readers practice here, some likely practice elsewhere. So, to the extent the tracker might help them, I’m highlighting it today.

I appreciate two other aspects of the RAILS resource page. 

The first is that it calls attention to the difference between “AI” and “Generative AI.” 

Tech competence indeed.

The second is that it acknowledges that “few” of the court orders and local rules identified by the tracker “govern behaviors that are not already addressed by existing rules of professional responsibility.”  I appreciate this acknowledgement because while I agree with RAILS that “the lack of consistency in terminology and scope of these orders may create confusion and compliance challenges for attorneys navigating the AI landscape,” I also believe that the current Rules of Professional Conduct encompass the scope of misconduct that might result from the use of AI, as well as the use of whatever new “thing” that technology brings us next and next and after that.

As always, let’s be careful out there.

---

[1] Notably, RAILS takes no pride of ownership.  Their resources page also links to the Ropes & Gray Court Order Tracker, another tool to track “standing orders and local rules on the use of AI.”

[2] As I’ve repeatedly argued, it’s often not technology that’s the problem. Imagine that a partner asks an associate to draft a memorandum of law.  If the partner submits the memo without checking the cases cited by the associate, and if those cases are fictitious, we wouldn’t focus on whether to adopt orders regarding the use of associates.  We’d focus on the partner’s failure to check the cites!

RELATED POSTS

• NYSBA issues guidelines on a lawyer’s use of artificial intelligence
• A lawyer’s duties when using artificial intelligence
• Artificial intelligence & fabricated case law: a lesson in tech competence

NYSBA Task Force issues guidelines on a lawyer’s use of artificial intelligence.

More and more guidance on a lawyer’s use of artificial intelligence is emerging.  Last December, I blogged here about advisory opinions issued by the Florida and California bars. Today, I write to share the recently released Report and Recommendations of the New York State Bar Association Task Force on Artificial Intelligence.

The report is thorough. It includes the following sections:

• Evolution of AI & Generative AI
• Benefits and Risks of AI and Generative AI Use
• Legal Profession Impact
• Legislative Overview and Recommendations
• AI & Generative AI Guidelines

Legal ethics and professional responsibility figure prominently in two sections.

The section titled “Legal Profession Impact” includes a sub-section devoted to “Ethical Impact.” In turn, the sub-section addresses seven areas:

• Duty of Competence
• Duty of Confidentiality & Privacy
• Duty of Supervision
• Unauthorized Practice of Law
• Attorney-Client Privilege and Attorney-Work Product
• Candor to the Court
• Judges’ Ethical Obligations.

I don’t want to use block quotes or regurgitate the report. Rather, if interested, I suggest reading the report.  That said, I want to draw attention to two aspects of the section on “Ethical Impact.”

The first is the quote used to open the discussion of the Duty of Competence.  The quote serves as an important reminder to any lawyer who thinks they can ignore developments in technology:

• “A refusal to use technology that makes legal work more accurate and efficient may be considered a refusal to provide competent legal representation to clients.”[1]

Next, any lawyer or legal professional who uses generative AI would be well served by reviewing the examples of how “attorney-client privileged information or attorney-work product [could] be revealed when directing and indirectly using generative AI tools such as ChatGPT or GPT-4.”[2]

Now I’ll move on to the next section in which legal ethics figures prominently.

The “AI and Generative AI Guidelines” appear on pages 57-60. Each guideline cites to a specific conduct rule – 14 in total – and then shares a tip on how to ensure compliance with the rule when using AI. Again, I’m not going to regurgitate the rules or guidelines here. Read them.  However, as a former chair of the VBA’s Pro Bono Committee, I’ll happily reshare this. 

New York’s pro bono rule states that “[l]awyers are strongly encourage to provide pro bono legal services to benefit poor persons” and goes on to suggest that lawyers aspire to provide 50 hours of pro bono legal services per year.[3]  The Task Force’s guideline related Rule 6.1 states that artificial intelligence

• “may enable you to substantially increase the amount and scope of the pro bono legal services that you can offer. Considering Rule 6.1, you are encouraged to use [AI or generative AI] to enhance your pro bono work.”

Finally, with AI and generative AI so entwined with a lawyer’s duty of competence and the responsibility to stay abreast of the benefits and risks of relevant technology,[4] I’m struck by how incompetent I am to blog about the topic. If anyone should be authoring this post, it’s The First Brother. PK works for Amazon Web Services. His title is “Generative AI Lead Engineer.” In a nutshell, he writes AI that allows AWS clients to automate their workflows. 

I guarantee you this: The First Brother is far more equipped to wax intelligently on legal ethics & professional responsibility than I am on generative AI.[5]  Who knows what will happen as both technology and our understanding of who should be authorized to provide legal services evolve? Maybe the legal profession will be so disrupted that the First Brother replaces me as bar counsel.[6]

You heard it here first!

As always, let’s be careful out there.

---

[1] Footnote 123 attributes the quote to Nicole Yamane, Artificial Intelligence in the Legal Field and the Indispensable Human Element Legal Ethics Demands, Sept. 24, 2020, Georgetown Univ. Law Center, https://www.law.georgetown.edu/legal-ethics-journal/wp-content/uploads/sites/24/2020/09/GT-GJLE200038.pdf

[2] Citation omitted. The examples appear on pages 34 and 35 of the Task Force’s Report & Recommendations.

[3] Vermont’s rule, which is similar, is here.

[4] V.R.Pr.C. 1.1, Cmt. [8]

[5] The Judiciary recently swapped out my old laptop for a new HP ProBook. It worked great in the office after the tech person set it up. At home? Different story. Took me a few hours to find the power button. Turns out, it’s a button in between “prt scr” and “delete.”

[6] More likely, AI will replace me. As I blogged here, it’s already pretty darn good at providing legal ethics guidance.

Related Posts

A lawyer’s duties when using artificial intelligence

Artificial intelligence & fabricated case law: a lesson in tech competence

Monday Morning Honors #294

Happy Eclipse Day! 

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

Honor Roll

• Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labor
• Andy Delaney, Martin Delaney & Ricci
• Robert Grundstein
• Ryan Kane, Vermont Deputy Solicitor General, Office of the Attorney General
• Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
• Douglas Keehn, Assistant Attorney General, Medicaid Fraud & Residential Abuse Unit
• Patrick Kennedy, The First Brother
• Jordana Levine, Marsicovetere & Levine
• Jeffrey Messina, Flynn Messina
• Patrick Olmstead, Patrick Olmstead Law
• Keith Roberts, Darby Kolter & Roberts
• Stephanie Romeo, Ryan Smith & Carbine
• Jonathan Teller-Elsberg, Staff Attorney, New Hampshire Legal Assistance
• Jason Warfield, Jason Warfield Family Law & Mediation

ANSWERS

Question 1

Here’s a few sentences from one of the comments to a rule.  What of the 7 Cs of Legal Ethics does the rule address?

• “To determine whether a _______ exists, a lawyer should adopt reasonable procedures, appropriate for the size and type of firm and practice, to determine in both litigation and nonlitigation matters the persons and issues involved. Ignorance caused by a failure to institute such procedures will not excuse a lawyer’s violation of this rule.”

CONFLICT OF INTEREST.   V.R.Pr.C. 1.7, Cmt. [3]

Question 2

Some might consider it a distinction without a difference, but which is correct?  Vermont’s rule on fees:

• A.  prohibits a lawyer from charging an unreasonable fee.  See, V.R.Pr.C. 1.5.
• B.  requires a lawyer to charge a reasonable fee.

Question 3

Another C.   A comment to the rule that addresses this “C” acknowledge that compliance with the duty “can result in grave consequences to the client, including not only a sense of betrayal but also loss of the case and perhaps a prosecution for perjury.”  Still, compliance is required.

Which C?

CANDOR.   V.R.Pr.C. 3.3, Cmt. [11]

Question 4

Imagine this situation: Person meets with Lawyer to discuss forming a client-lawyer relationship. Person took the meeting in good faith. That is, Person did not take the meeting for no other purpose than to disqualify Lawyer from representing anyone else in the matter.  Nevertheless, following the consultation, Person decides not to retain Lawyer. Now, someone else wants to retain Lawyer in the same matter.

Which is most accurate?

• A.  Vermont has a rule that addresses this exact situation.  The rule sets out the duties a lawyer owes to a prospective client.
• B.  Vermont does not have a rule that addresses this exact situation.  Rather, Person will be deemed a “Current Client” and the situation analyzed under the rule that addresses “concurrent conflicts of interest.”
• C. Vermont does not have a rule that addresses this exact situation.  Rather, Person will be deemed a “Former Client” and the situation analyzed under the rule that addresses the duties owed to former clients.
• D.  Mike, I object to the premise of your question.  There is no world in which a client could possibly decide against retaining me after having met me.

I blogged about the rule 3 times last week. The posts are:

• Fish, fowl, and Vermont’s rule on a lawyer’s duties to prospective clients
• The nature & type of information received from a prospective client that might later disqualify a lawyer
• Get Smart: ABA provides guidance on reasonable measures to avoid acquiring disqualifying information from a prospective client

Question 5

It has been far too long since Question 5 involved My Cousin Vinny. So, with the intro having involved gambling, here we go!

My Cousin Vinny includes a famous scene in which Vinny explains offers, counteroffers, and negotiations.  The explanation is part of his attempt to collect bet that Mona Lisa Vito had won, but that the loser had not paid.

What had Mona Lisa Vito (successfully) bet on herself to win?

And because I set the rules here and am allowed blogger’s license, no credit for anyone who suggests that it was more of a hustle than a bet.

A game of pool.  The “collection” scene is here.

Five for Friday #294

Welcome to the 294^th Five for Friday legal ethics quiz!

I’m stumped as to topics for this week’s intro. One might think that the eclipse would be natural fodder.  Or the fact that I’m a basketball guy writing on what, arguably, is the biggest weekend in the history of college basketball. 

Nope. I remain stumped.  So, I’ll go with this.

As much as I love sports, and even with it legalized, I don’t bet on sports.  Not because I’m anti-wagering. But because I’m anti “being broke.” 

Which is exactly what I’d be if I took up sports gambling.

Why?

Long-time readers know that I’m the opposite of Michal Scott.  I’m not just a little stitious, I’m superstitious. Instead of making bets with my head, my money would follow my heart and my superstitions.

Straight to the poor house.

For example — and no offense to all who, thanks to Caitlin Clark, are new to the women’s game – I’m picking UCONN to win both national championships that are up for grabs this weekend. 

There are valid reasons for doing so. I won’t bore people by getting into the basketball weeds.  Suffice to say, the UCONN men are stacked at every spot. Meanwhile, much like we did with Dre 25 years ago, the world seems to have forgotten about Paige Bueckers, Geno Auriemma, and UCONN women’s basketball.

Of course, it’s not the valid reasons for doing so that would drive me to bet on UCONN pulling off the double.

Here are some facts:

• 2004 Women’s Basketball National Champions:  UCONN
• 2004 Men’s Basketball National Champion: UCONN
• 2014 Women’s Basketball National Champion: UCONN
• 2014 Men’s Basketball National Champions: UCONN

2004, 2014 . . .  2024!   Good enough for me and my superstitions!

Which is why I’m not placing any bets.  Because as Stevie Wonder sang long ago:

When you believe in things
That you don’t understand,
Then you suffer,
Superstition aint the way.

Still, go Huskies!

Onto the quiz!

Rules

• None.  Open book, open search engine, text-a-friend.
• Exception:  Question 5.  We try to play that one honestly.
• 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@vtcourts.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

Here’s a few sentences from one of the comments to a rule.  What of the 7 Cs of Legal Ethics does the rule address?

• “To determine whether a _______ exists, a lawyer should adopt reasonable procedures, appropriate for the size and type of firm and practice, to determine in both litigation and nonlitigation matters the persons and issues involved. Ignorance caused by a failure to institute such procedures will not excuse a lawyer’s violation of this rule.”

Question 2

Some might consider it a distinction without a difference, but which is correct?  Vermont’s rule on fees:

• A.  prohibits a lawyer from charging an unreasonable fee.
• B.  requires a lawyer to charge a reasonable fee.

Question 3

Another C.   A comment to the rule that addresses this “C” acknowledge that compliance with the duty “can result in grave consequences to the client, including not only a sense of betrayal but also loss of the case and perhaps a prosecution for perjury.”  Still, compliance is required.

Which C?

Question 4

Imagine this situation: Person meets with Lawyer to discuss forming a client-lawyer relationship. Person took the meeting in good faith. That is, Person did not take the meeting for no other purpose than to disqualify Lawyer from representing anyone else in the matter.  Nevertheless, following the consultation, Person decides not to retain Lawyer. Now, someone else wants to retain Lawyer in the same matter.

Which is most accurate?

• A.  Vermont has a rule that addresses this exact situation.  The rule sets out the duties a lawyer owes to a prospective client.
• B.  Vermont does not have a rule that addresses this exact situation.  Rather, Person will be deemed a “Current Client” and the situation analyzed under the rule that addresses “concurrent conflicts of interest.”
• C. Vermont does not have a rule that addresses this exact situation.  Rather, Person will be deemed a “Former Client” and the situation analyzed under the rule that addresses the duties owed to former clients.
• D.  Mike, I object to the premise of your question.  There is no world in which a client could possibly decide against retaining me after having met me.

Question 5

It has been far too long since Question 5 involved My Cousin Vinny. So, with the intro having involved gambling, here we go!

My Cousin Vinny includes a famous scene in which Vinny explains offers, counteroffers, and negotiations.  The explanation is part of his attempt to collect bet that Mona Lisa Vito had won, but that the loser had not paid. Here’s a bit of the scene:

Vinny: I understand you ___________ with Lisa for two hundred dollars, which she won. I’m here to collect.

J.T.: How ’bout if I just kick your ass?

Vinny : Oh a counter-offer. That’s what we lawyers – I’m a lawyer – we lawyers call that a counter-offer. This is a tough decision here. Get my ass kicked or collect two hundred dollars. Let me think… I could use a good ass-kickin’, I’ll be very honest with you… nah, I think I’ll just go with the two hundred.

What had Mona Lisa Vito (successfully) bet on herself to win?

And because I set the rules here and am allowed blogger’s license, no credit for anyone who suggests that it was more of a hustle than a bet.