Five for Friday #270

Welcome to Friday and the 270h legal ethics quiz.

If you’re a regular reader, you know how I feel about winter.  Then, upon noticing that the welcoming sentence didn’t end with its usual exclamation point, you likely guessed that this week’s introduction would be about the wind chill.

Good guess!  But wrong. 

If this was the 273rd quiz, then yes, today’s post would reference the miserable temperature and the fact that -273 degrees is absolute zero. However, this is the 270th quiz, which means I’m going to discuss artificial intelligence.

My dear readers, the end might be nigh.

AI and its impact on the legal profession burst into the conversation earlier this month with a tweet from DoNotPay founder Joshua Browder:

Well, as they say about mice, men, and plans, here’s what Browder Tweeted last week:
Some of the headlines were catchy.

As the DoNotPay story was unfolding, multiple outlets, including Reuters and the ABA Journal, reported that Open AI’s ChatGPT had earned passing scores in Torts and Evidence on the multiple choice segment of the bar exam.  Also, as reported by CNN, ChatGPT passed four courses at the University of Minnesota Law School.

I used the DoNotPay and ChatGPT stories as questions in Montreal during the Thaw Bowl. Going through the answers, I remarked – not jokingly – that my job might be the first to go once the robots start to replace lawyers.  People seemed to disagree, suggesting that there’s nuance in ethics inquiries that AI can’t replicate. 

I’m not so sure. So, I ran a test this morning.

I asked ChatGPT three questions that are common ethics inquiries.  Each answer came within 5 seconds.  You be the judge.

Question 1

MK:       In legal ethics, is it a conflict of interest to represent a person in a divorce after representing the couple during the marriage?

ChatGPT:  In legal ethics, representing a person in a divorce after representing the couple during the marriage may be considered a conflict of interest. Representing a client in a divorce case after representing both parties during their marriage may create a situation where the lawyer has confidential information obtained during the previous representation that could potentially be harmful to one of the parties in the divorce case.

The American Bar Association Model Rules of Professional Conduct, which provides ethical guidelines for lawyers, state that a lawyer shall not represent a client if the representation will be directly adverse to another client, unless the client consents after consultation.

Whether representing a person in a divorce after representing the couple during the marriage constitutes a conflict of interest will depend on the specific circumstances of the case and the ethical rules that apply in the jurisdiction in which the lawyer is practicing. It’s important for lawyers to consider their ethical obligations and to seek guidance from their state bar association or ethics committee if they have any questions or concerns.

Not bad.

Question 2:

MK: What are lawyer’s duties upon learning that a client may have presented false evidence to a court?

ChatGPT: A lawyer’s duty when they learn that their client may have presented false evidence to a court is to take steps to rectify the situation. This may include, but is not limited to, withdrawing from the case, informing the court of the false evidence, or seeking to have the evidence corrected or stricken from the record.

However, the specific steps that a lawyer must take will depend on the jurisdiction in which they are practicing and the ethical rules that apply to their profession. It’s important to note that in some cases, a lawyer may have an obligation to continue representing the client if they believe that doing so would not result in harm to the administration of justice. In these circumstances, the lawyer may have a duty to provide advice to the client to correct the situation and to comply with the ethical rules that govern the legal profession.

 Again, not bad.

Question 3

MK:  In Vermont, how much of a lawyer’s own money can be in a trust account?

ChatGPT In Vermont, there is no specific rule regarding the amount of a lawyer’s own money that can be placed in a trust account. However, trust accounts are intended for holding clients’ funds and any personal funds deposited in the account must be kept separate from client funds and properly accounted for.

Lawyers must comply with the Vermont Rules of Professional Conduct and any applicable laws and regulations governing trust accounts. Vermont Rule 1.15 provides that a lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds belonging to the lawyer may be deposited in a client trust account only as permitted by Vermont Rule 1.15(e), which states that a lawyer may deposit the lawyer’s own funds in a client trust account only as permitted by law and only in an amount reasonably sufficient to pay service charges.

It’s important for lawyers to familiarize themselves with the specific rules and regulations that apply to trust accounts in Vermont and to seek guidance from the Vermont Bar Association or a professional liability insurance provider if they have any questions or concerns.

This one is interesting. The first sentence is wrong. In fact, we have a specific rule, it’s V.R.Pr.C. 1.15(b). However, in the second paragraph, ChatGPT got to the correct answer (although incorrectly citing to Rule 1.15(e)).

Again, the answers aren’t bad.  And remember – AI learns as it goes.

What’s all of this this got to do with 270?

Apparently, we aren’t too far from AI passing the bar exam.  And when it does, I could be the first to go.

What’s the passing on score on the Vermont Bar Exam?

270.

Onto the quiz!

 Rules

  • None.  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply.
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

By rule, what is required to be “communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation?”

  • A.   Whether the lawyer has malpractice insurance and, if so, the policy limits.
  • B.   Whether the lawyer has designated a successor to review and triage files if the lawyer becomes incapacitated during the representation.
  • C.   The basis or rate of the lawyer’s fee, and expenses for which the client will be responsible, except when the lawyer will charge a regularly represented client on the same basis or rate.
  • D.  All the above.

Question 2

Competent representation includes knowing the other rules.

There’s a rule that prohibits charging a contingent fee to secure a ______ and to represent to represent a _______________.

Question 3

Absent a written agreement between Lawyer & Client saying it will be treated otherwise, a flat fee paid in advance of any services being performed by Lawyer ____________:

  • A. must be deposited into trust.
  • B.  must not be deposited into trust.
  • C.  violates the rules.
  • D.  None of the above.

Question 4

If a lawyer calls me with an inquiry related to client confidences, which situation is most likely to cause me to give a different response than to the others?

  • A.  Client files disciplinary complaint against lawyer.
  • B.  Client leaves negative online review for lawyer.
  • C.  Client sues lawyer for malpractice.
  • D.  Client files petition for post-conviction relief that makes allegations about the lawyer’s representation of client.

Question 5

One of Netflix’s most-watched shows of 2022 starred Julia Garner as the so-called “SoHo Grifter . . . who stole the hearts of New York’s social scene — and stole their money as well.” Garner’s performance earned Emmy and Golden Globe nominations, and required a much different accent than Garner used as Ruth in Ozark.

In real life, the “grifter’s” lawyer was disbarred last year. Ironically, for stealing money from another client.

In the fall, the real-life “SoHo Grifter” sued the lawyer, alleging that the lawyer had failed to turn over the complete file after being fired last April.  The lawyer told the press that she had delivered the entire file, that the lawsuit is a vendetta, and that the former client is an “ungrateful b*&*%.”

Name the Netflix show.

Another lawyer sanctioned for social media conduct that would’ve resulted in a sanction even before social media existed.

I’m trying to get back into things.  In the past, a trick I’ve used to escape blogging ruts has been to re-post old blogs, often under the guise of a “Throwback Thursday” gimmick. Today, I’m doing something similar.

It’s been a while since I’ve posted on the intersection between legal ethics, professional responsibility, and social media. Formerly a so-called “hot topic,” interest seems to have waned as we’ve become more accustomed to social media.  

Back in the “hot topic” days, many seminars focused on a common theme best described as “Social Media Traps for Unwary Lawyers.” My view has long remained unchanged: on its own, social media doesn’t pose a trap for the unwary. That is, ethical conduct doesn’t become unethical when done on social media.  Rather, social media serves to expose unethical conduct that might not have become apparent in a pre-social media age.

That’s the point that I tried to make in Social Media & Legal Ethics: Keep It Real. Referring to a recent seminar, I wrote:

  • The topic was social media & legal ethics.  My theme was “Keep it Real.”  I tried to convey that social media isn’t so much the cause of misconduct as it is a relatively new forum for misconduct that has always existed. That is, if it’s wrong in real life, it’s wrong on social media.

Last year, I argued the point again in Social Media Isn’t The Problem.

I was reminded of the posts this morning.

David Kluft is Assistant Bar Counsel in Massachusetts.  David often shares “#LegalEthics Tidbits” on LinkedIn. I recommend a follow, for both the educational and entertainment value that the tips provide.  A few hours ago, David posted:

#LegalEthics Tidbit: Don’t tweet impounded settlement terms.

David linked to this report in which a hearing committee of the DC Court of Appeals Board of Professional Responsibility recommended that a lawyer be suspended from practice for 60 days. The recommendation followed a conclusion that the lawyer had committed several violations, including one involving a Tweet.

Long story short, the lawyer (Lawyer) represented a client who sued after being on a train that filled with smoke after breaking down in a tunnel. For reasons that also factored in the sanction recommendation, Lawyer was eventually replaced as the client’s counsel of record. The client’s new attorney also represented other passengers who had been on the train.

The new attorney settled the claim. The court approved the settlement and placed it under seal.  The new attorney informed Lawyer of the settlement’s provisions.

The next day, Lawyer posted a Tweet that included:

  • Unredacted portions of the sealed settlement agreement;
  • Emails between Lawyer and the new attorney about the settlement;
  • a picture of the new attorney; and
  • the words “Where’s MY CA$H.”

The Tweet tagged the new attorney’s law firm and mentioned several celebrities and major news outlets.

As is usually the case, social media isn’t the problem here. The fact that Lawyer took to Twitter doesn’t make the conduct any more unethical than if Lawyer had distributed unredacted copies of the settlement agreement on Pennsylvania Avenue while holding a sign with the new attorney’s picture, name, and the words “Where’s MY CA$H.” Publicizing a confidential settlement agreement is wrong no matter how it is publicized.  Here, doing so on social media didn’t make it “more” unethical.  It made it more likely that Lawyer would get caught.

As always, let’s be careful out there.  How?  See below.

Resources

Finally — misconduct that left even me in disbelief.

Every so often, a lawyer will preface a story about legal ethics with a statement like “Mike, I GUARANTEE that you WILL NOT believe this one.”

Yes, I will.  That’s what 22 years in this field can do to a person.

Then I read today’s story.  It involves misconduct that, until now, I would only have imagined in a TV or movie script. I mean, I’m not even certain that Saul Goodman would stoop so low.  Sadly, it’s real life.

I learned of the story via the ABA Journal and the Legal Profession Blog.  Respectively, the headlines:

The story is mind-boggling.

According to disciplinary charges filed last week, the lawyer represented a client charged with several criminal offenses, including Murder.  In June 2021, both the lawyer and a victim’s advocate appeared at the client’s arraignment.  The lawyer had known the victims’ advocate for years, knew that the advocate was involved in the lawyer’s client’s case, and new that the victim’s advocate worked for an organization named “Haven of Hope.”

The court set a pretrial hearing for November 30, 2021.  The client’s last name is Wells, the victim advocate’s Wilkinson-Carpenter.  What follows in italics is an excerpt from the disciplinary complaint, which refers to the lawyer as “respondent.”

  • 15. On November 30, 2021, the day of Wells’s pretrial hearing, respondent deposited his feces into an empty potato chip can before leaving his home. He did not put a lid on the can. Respondent drove with the can of feces to Cambridge, Ohio.
  • 16. At approximately 8:10 a.m. – 8:15 a.m., respondent turned his vehicle down the alley where Haven of Hope’s parking lot is located.
  • 17. At the entry to the alley, there is a sign on the side of the building indicating that Haven of Hope is housed there. Further, there was construction at the entrance to the alley which made the alley more difficult to access.
  • 18. Respondent slowed his vehicle down as he initially passed Haven of Hope’s parking lot.
  • 19. Respondent then drove further down the alley, passing by other parking lots, and turned around, allowing him to drive past Haven of Hope’s parking lot a second time.
  • 20. Respondent slowed again as he passed Haven of Hope’s parking lot for the second time and threw the open chip can containing his feces out of his car window and into Haven of Hope’s parking lot.
  • 21. Wilkinson-Carpenter observed respondent throw the can out of the window of his vehicle toward Haven of Hope’s parking lot.
  • 22. Respondent then sped off in his vehicle and drove to the courthouse for Wells’s 8:30 a.m. pretrial hearing.
  • 23. Wilkinson-Carpenter approached the item which landed close to her car and discovered it was a Pringles can containing what appeared to be human feces.

The charges go on to allege that the victim’s advocate reported the incident to law enforcement and that the lawyer eventually pled guilty to Disorderly Conduct and Littering.

So far, I’d yet to reach the part of the story that left me in disbelief. Then I read paragraph 27 of the disciplinary complaint.  It alleges:

  • “27. Respondent has engaged in similar conduct on approximately ten previous occasions, indiscriminately choosing the location where he throws the chip cans containing his feces.”

Thinking back to the opening and a jingle of my youth, I GUARANTEE this: today’s story certainly does not leave me with a fever for the flavor.

As always, let’s be careful out there.

Related posts:

Need a continuance? Don’t assume it’ll be granted.

I’ll cut to the chase.  The goal of this post is to remind lawyers not to assume that a continuance will be granted. In a few paragraphs, I’ll share a cautionary tale that drives home the point. But first, a bit on what got me thinking about the general topic.

I’ve been contemplating a post on the relationship between Rule 3.2 and Comment 5 to Rule 1.2.

The former requires a lawyer to expedite litigation consistent with the interests of the client.  The comment makes clear that delay for delay’s sake is unethical. 

  • “Nor will a failure to expedite be reasonable if done for the purpose of frustrating an opposing party’s attempt to obtain rightful redress or repose. It is not a justification that similar conduct is often tolerated by the bench and bar. The question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay. Realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client.”

Meanwhile, Comment [5] to Rule 1.2 addresses a lawyer’s professional responsibility upon receiving a good faith request for a continuance.  The comment went into effect on November 14 and is part of the rule that answers the question “Who decides? The client or the lawyer?”  It reads:

  • “[5] It is not inconsistent with the lawyer’s duty to seek the lawful objectives of a client through reasonably available means for the lawyer to accede to reasonable requests of opposing counsel that do not prejudice the rights of the client, to avoid the use of offensive or dilatory tactics, or to treat opposing counsel or an opposing party with civility.”

In a way, each is intertwined with Rule 1.3’s duty to act with reasonable promptness and diligence when representing a client.

Looking for cases or opinions that discuss either rule, I came across the ABA Journal’s post Lawyer who missed deadline to watch son’s professional debut gets no sympathy on appeal. The story reminded me of (what I think is) a common assumption: that a continuance will be granted. Here’s what happened.

Lawyer filed a civil suit on behalf of Plaintiff.  Defendants moved to dismiss. The United States District Court for the Central District of California set a hearing on the motion for June 24, 2021.

On June 9, 2021, Lawyer filed a motion to continue the hearing. Lawyer cited his workload as well as the fact that his associate would be out of the office for several weeks for a family emergency. The court granted the request. As such, the deadline for Lawyer to file a response to Defendants’ motion to dismiss was pushed to September 3, 2021, and a hearing on the motion was scheduled for September 24, 2021.

On September 3, the date that his response was due, Lawyer filed another request for a continuance.  This time, Lawyer asserted that he could not file a timely response because he was in Illinois to watch his son’s debut as a professional baseball player.  Lawyer asked that the hearing on Defendants’ motion be pushed to October 8.  The court denied Lawyer’s motion.

On September 18, Lawyer filed a response to the motion to dismiss. It seems that Lawyer expected to appear at a hearing on the motion to dismiss on September 24.

The hearing never took place.  Rather, on September 20, the court granted Defendants’ motion to dismiss as unopposed. In so doing, the court concluded that Lawyer’s responsive motion was filed out of time.  Plaintiff’s suit was dismissed, and the hearing scheduled for September 24 cancelled.  The court’s order is here.

Lawyer appealed.  Last week, the 9th Circuit Court of Appeals affirmed the district court’s decision.  Among other things, the 9th Circuit stated that Lawyer’s

  • “. . . excuse for not meeting a deadline that had already been extended 90 days at his request was frivolous: Counsel chose to attend a ballgame instead of timely filing his client’s response to the motion to dismiss.”

The ABA Journal quoted Lawyer as stating:

  • “Look, I’ve been doing this for 38 years. Most judges would give you a pass to see your kid’s first professional baseball game.”

In addition to the ABA Journal, How Appealing reported the story here and updated it here.

I do not know what Lawyer’s mindset was. Nor am I suggesting that he assumed a continuance would be granted.

Rather, as I indicated above, the story reminds me of what I perceive to be a common feeling in the Vermont bar: that continuances will be granted. This story shows that’s not always the case.

Today’s lessons:

  • Lawyers shouldn’t assume they’ll receive continuances.
  • Comment [5] to Rule 1.2 vests a lawyer with the authority to agree to good faith requests from opposing counsel that do not harm the lawyer’s client’s interests.
  • Rule 3.2 makes clear that delay for delay’s sake is unethical.

As always, let’s be careful out there.

Update on the no-contact rule and represented organizations.

A few weeks ago, I posted The No-Contact Rule, Represented Organizations, and . . . Basketball?  The post shared the story of Larry Hutcher

Hutcher is lead counsel for a group of ticket resellers who, in September, sued Madison Square Garden Entertainment Corporation (Defendant).  Once the suit was filed, Defendant banned Hutcher and other lawyers at his firm from attending events at Defendant’s properties.  Defendant cited New York’s version of ABA Model Rule 4.2 as a basis for the ban.[1] 

Of course, that’s not the entire story.  Here’s what makes it interesting:

  • Defendant’s properties include Madison Square Garden.
  • Hutcher has New York Knicks season tickets. 
  • The Knicks play their home games at Madison Square Garden.

So, on behalf of his firm, Hutcher asked a court to enjoin Defendant from prohibiting the firm’s lawyers from attending events at MSG properties.  The suit drew coverage from multiple outlets, including Forbes, the New York Times, the New York Post, ESPN, and the ABA Journal

In his complaint, Hutcher argued that:

“Rule 4.2 is meant to ensure that there is no contact between represented parties by counsel relating only to the ‘subject of the litigation.’ Certainly, there are only very few employees of MSG in a position to discuss the ‘subject of the litigation ‘with any of the individual plaintiffs. In essence, MSG feigns concern over the unlikely scenario that any individual plaintiff will discuss ‘the substance of the litigation’ with such an MSG employee while watching a Knicks game or attending a concert. This is absurd and is nothing more than a flimsy unsupportable pretext to justify the infantile behavior of MSG’s principals.”

He went on:

“Furthermore, Rule 4.2, when applied to corporate organizations, only affects limited categories of corporate employees and not all employees as MSG disingenuously implies in its notice. As described in more detail below, the affected MSG employee must be someone with the authority to bind MSG to a decision that will impact the subject litigation. How many MSG employees fall into this limited category? The odds of an individual plaintiff discussing the subject of the litigation with that MSG employee are astronomical. There are better odds of being struck by lightning or the Knicks winning the NBA championship this year.”[2]

The court ruled two days ago.  The ABA Journal reported the decision here.

The opinion isn’t exactly overflowing with legal analysis.  Here’s how the court resolved the 4.2 issue:

  • “. . . there appears to be no rational basis for the policy instituted by the defendants except to dissuade attorneys from bringing suit against them. The concern that the defendants could be prejudiced by allowing attorneys who are representing those who have brought action against the defendant to attend events with thousands of other people is unavailing to this Court.”[3]

If you’re interested in the court’s discussion of the substantive law, check out the opinion.  The discussion is outside the scope of this post and the no-contact rule’s application, if any, to a lawyer who is suing a represented organization and who wants to enter one of the organization’s properties for reasons that have nothing to do with the litigation. 

Despite the court’s conclusion that the 4.2 argument was “unavailing,” MSG appears to have doubled down. According to the ABA Journal, MSG released a statement that includes the following:

  • “‘It is not unreasonable that while in active litigation, we would want to preserve our right to protect ourselves against improper disclosure and discovery,’ the statement reads. ‘That is why we instituted this policy, and we have repeatedly made clear that once litigation is resolved, impacted attorneys will be allowed back in our venues.’”

The ABA journal went on to report that “Madison Square Garden has sent letters to all lawyers with suits against the venue asserting that any tickets that they obtain—including those purchased from third-party sellers—are revoked and invalid.”

It seems that there’s going to be an appeal.  If so, I wonder if the 4.2 issue will be addressed in more detail.  

Again, Rule 4.2 prohibits a lawyer from communicating with a represented person on the subject matter of the representation.  The first sentence of Comment [7] to Vermont’s rule states that

  • “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.”

So, if MSG is correct and Rule 4.2 is a proper basis to ban lawyers who are suing MSG from entering the MSG’s venues, how else might Rule 4.2 be wielded?  Can a represented grocery chain use Rule 4.2 to ban a lawyer who is representing a plaintiff who slipped on a wet floor from shopping at its stores? What about the lawyer who wants to visit an elderly friend or relative but is representing a client in a claim against the company that owns the private care facility where the friend or relative lives? 

Again, for all I know, such bans might be valid under other law.[4]  Also, I am not suggesting that lawyers undermine the discovery rules, or make themselves witnesses.  My focus is solely on Rule 4.2.  And, while I’m open to discussion, to me, absent actual communication with a represented organization’s constituent on the subject of the representation, a lawyer does not violate the rule merely by going to a Knicks game, picking up groceries, or visiting a friend or relative.

As always, let’s be careful out there.

Related Posts


[1] Rule 4.2 prohibits a lawyer from communicating with a represented person on the subject of the representation. 

[2] To Hutcher’s point, here is the first sentence to Comment [7] to Vermont’s version of Rule 4.2: “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.”

[3] Alas, while Rule 4.2 was not dispositive, Hutcher and his co-workers fell short of total victory.  The court concluded that New York law (1) requires MSG to honor valid tickets to non-sporting events that are presented by people 21 or older who are behaving appropriately, but (2) does not prohibit MSG from barring entry to sporting events. 

[4] I don’t know much law.

Monday Morning Honors #267

Happy Monday! Last full week before the holidays.  Make the most of it!

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

Honor Roll

Answers

Rules

  • None.  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

Consider the following:

  • Thoroughness, preparation, legal knowledge, and skill.
  • Well-being.
  • Staying abreast of developments in the law, including the risks and benefits of technology.

Each is an aspect of the duty of ________.

COMPETENCE.   V.R.Pr.C. 1.1 sets out the duty of competence and defines it to include the thoroughness, preparation, legal knowledge, and skill required for the representation.  Comment 8 addresses the duty to stay abreast of the risk and benefits of relevant technology, while Comment 9 discusses well-being as an aspect of competence.

Question 2

Here’s a comment to one of the rules:

  • “A lawyer entitled to a fee is permitted by paragraph (c)(3) to prove the services rendered in an action to collect it.  This aspect of the rule expresses the principle that the beneficiary of a fiduciary relationship may not exploit it to the detriment of the fiduciary.”

Which of the 7 Cs of Legal Ethics is the subject of the rule that this comment accompanies?

CONFIDENTIALITY.  The quoted language is from Comment 13.

Question 3

Fill in the blank.

There’s a rule that prohibits ex parte communication with two groups of people. One group includes judges and any “other person acting in a judicial or quasi-judicial capacity in a pending or impending adversary proceeding.”   The other group includes current and prospective _____________.

JURORS.  V.R.Pr.C. 3.5(b)(2).

Question 4

I rarely receive inquiries about this rule, but the topic it addresses is one that many lawyers find frustrating in opposing counsel.  A comment to the rule suggests that a violation likely turns on “whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay.”

What’s the name of the rule?

  • A.  Expediting Litigation.  V.R.Pr.C. 3.2
  • B.  Conflicts of Interest: Current Clients: Specific Rules.
  • C.  Declining or Terminating Representation.
  • D.  Meritorious Claims and Contentions.

Question 5

Today’s question is about a movie that is 30 years old.  However, the lead role was played by an actor who is going to finish as Hollywood’s top paid star of 2022, reportedly earning more than $100 million for a movie that was released this spring.

The 1992 movie included several memorable courtroom scenes.  In one, a member of the 3-lawyer defense team objected to testimony and asked that it be stricken from the record.  The following exchange ensued:

  • Judge:  The objection is overruled counsel.
  • Lawyer:  Sir, the defense strenuously objects and requests a meeting in chambers so that his honor might have an opportunity to hear discussion before ruling on the objection.
  • Judge: The objection is overruled counsel.

A few moments later, the court went into recess.  Annoyed with the lawyer, co-counsel asked:

  • “I strenuously object? Is that how it works?” 

Then, to drive home the point, co-counsel pretended to be both lawyer and judge in this scenario:

  • Lawyer:  Objection.
  • Judge:  Overruled.
  • Lawyer:  No, no, no, no I strenuously object.
  • Judge: Oh, well if you strenuously object, let me take a moment to reconsider.

Later, in the movie’s famous climactic scene, the leading character – and leader of the defense team — asked a key witness “did you order the ____   ____?” The judge told the witness that the witness did not have to answer. The witness answered anyway. 


If they were real-life lawyers, the defense team would probably be doing something today to observe Veterans Day.

What had the witness ordered?  A CODE RED (The movie is A Few Good Men)

Bonus: name the 2022 movie that starred the 1992’s movie’s lead, albeit not as a lawyer. It’s another movie whose characters likely observe Veterans Day.

TOP GUN – MAVERICK.  Tom Cruise starred in both.

History’s best “worst” song, and tips on acting reasonably to safeguard client data.

Yesterday was this blog’s 7th birthday.  We entered the world with Competence Includes Tech Competence.  The theme dominated back then.  Indeed, one could reasonably argue that tech competence is to this blog, as rock & roll is to Starship’s city.[1]

The rules related to tech competence have evolved since then.  In 2018, we adopted language that makes clear that maintaining competence includes keeping “abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”[2] More recently, we amended V.R.Pr.C. 1.6, the confidentiality rule, to include this paragraph:

  • (d) A lawyer shall make reasonable efforts to prevent the inadvertent disclosure of, or unauthorized access to, information relating to the representation of a client.

The amendment, which takes effect next week, addresses the duty to act competently to safeguard client information, no matter the format in which the information is stored.  Here’s the Reporter’s Note:

  • “Subdivision (d) is added to reflect that the modern practice of law includes possession of information related to the representation of client in many forms, including information that is stored electronically or digitally. A lawyer is under a duty to act competently to safeguard client information, no matter its format. See V.R.Pr.C. 1.1. Paragraph (d) tracks the ABA Model Rule, clarifies that V.R.Pr.C. 1.6 applies to the electronic transmission and storage of information relating to a representation, and makes explicit that the duty under Rule 1.6 is broader than avoiding affirmative disclosures of information relating to the representation of a client.”

With the new rule, a question that arises is “what are reasonable efforts?”  As I indicated here, it’s not my role to issue a formal opinion as to what’s reasonable and what isn’t.  My stance finds support in ABA Formal Opinion 477.  Among other things, the opinion concludes that “[w]hat constitutes reasonable efforts is not susceptible to a hard and fast rule, but rather is contingent upon a set of factors.”  It goes on to state that “the reasonable efforts standard:

  • “. . . rejects requirements for specific security measures (such as firewalls, passwords, and the like) and instead adopts a fact-specific approach to business security obligations that requires a ‘process’ to assess risks, identify and implement
    appropriate security measures responsive to those risks, verify that they are effectively implemented, and ensure that they are continually updated in response to new developments.

That said, it’s undisputed that my role includes providing guidance.  To that end, here are two resources.

In September, Jim Knapp and I presented “Tech Competence & Cybersecurity” at the VBA’s Annual Meeting.  I began with a short overview of the new rule, then Jim provided a boatload of cyber and tech tips.  You can access the material here.

In addition, Catherine Reach is the Director of the North Carolina Bar Association’s Center for Practice Management.  Two days ago, Catherine posted “Protecting Portable Devices.”  Like Jim’s material, Catherine’s post is chock full o’ helpful tips on securing data.

As always, let’s be careful out there.


[1] Those of you who remember the 80s music scene might question including We Built This City in a post on competence. Your skepticism is warranted. After all, a few years ago, GQ named it “the Worst Song of All Time.” However, I’ll say this: on the rare occasion that I listen to the song, I turn the volume to 11, sing along enthusiastically, and find myself particularly thrilled to belt out (with proper intonation that doesn’t come through in a blog post) “knee deep in the hoopla” and “Marconi plays the Mamba.”  So, for giggles, a trip down memory lane is here.

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

Monday Morning Honors #265

Happy Halloween!

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

How about one last look at The First Brother pulling off history’s greatest performance as spinach (with kudos to my mom for the concept):

And, special kudos to Cary Dube.  Cary and her mom, Priscilla, are practicing members of the Vermont bar.  Cary was the only brave soul to share a pic from a Halloween past!  Here are the Dubes:

Honor Roll

  • Karen Allen, Karen Allen Law
  • Matthew Anderson, Pratt Vreelend Kennelly White
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, UIC School of Law
  • Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labor
  • Heather Devine, Tarrant Gillies Shems
  • Cary Dube, Bergeron Fitzpatrick & Paradis
  • Benjamin Gould, Paul Frank + Collins
  • Robert Grundstein
  • Glenn Jarrett, Jarrett/Hoyt
  • Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
  • Jeanne Kennedy, Mother (of the) Blogger, JB Kennedy Associates
  • John T. Leddy, McNeil, Leddy, Sheehan
  • Pam Loginsky, Deputy Prosecuting Attorney, Pierce County, Tacoma, WA
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeffrey Messina, Messina Law
  • Hal Miller, Hawaii Agency Underwriting Counsel, First American Title Insurance
  • Herb Ogden
  • James Remsen, Master Planner, Parker & Hannafin
  • Keith Roberts, Darby Kolter & Roberts
  • Robyn Sweet, Risk Management Specialist, Rutland Regional Medical Center
  • Jason Warfield, J.D.

Answers

Question 1

This week is National Celebrate Pro Bono Week.  Citing one of the 7Cs of Legal Ethics, lawyers often express reluctance to do pro bono work. There’s no need to fear! Indeed, here’s one of the comments to the rule that sets out the duty that lawyers worry that they might violate if they take a pro bono case in a practice area with which they’re not too familiar.  Which C?

  • “A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar.  Some important legal skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study.”

COMPETENCE.  V.R.P.C. 1.1, Cmt. [2].  The VBA offers LOADS of practice area training that is aimed at lawyers looking to do pro bono work.  Much of the training is available via archived video.  For more information, contact Kim Velk or Mary Ashcroft.

Question 2

Which is in a different rule than the others?

  •  A.  Same or substantially related matter.
  •  B.  Materially adverse interests.
  •  C.  Informed consent, confirmed in writing.
  • D.  Remonstrate with the client and, if necessary, take reasonable remedial measures.

Options A, B, C are part of V.R.Pr.C. 1.9(a)’s standard for former client conflicts.  D, the correct answer, is what V.R.Pr.C. requires of a lawyer when the lawyer comes to know the falsity of material evidence offered by the lawyer, the lawyer’s client, or a witness called by the lawyer.

Question 3

There’s a rule that includes an exception for when a person is seeking a second opinion.  The rule addresses _______:

  • A.  conflicts of interest.
  • B.  the situations in which a fee agreement must be reduced to writing.
  • C.  communicating with a represented person.
  • D.  advertising & client solicitation.

V.R.Pr.C. 4.2 prohibits a lawyer from communicating with a represented person on the subject of the representation.  There is an exception when the represented person contacts a lawyer who is not otherwise involved in the matter for a second opinion.

Question 4

Attorney referred Client to Lawyer.  Lawyer completed the representation and billed Client.  Lawyer and Attorney have agreed that, given the referral, Lawyer will share the fee with Attorney.  What else must happen?

  • A.   The overall fee must be reasonable, and client must agree in writing to the division.
  • B.   Lawyer and Attorney must divide the fee in proportion to services rendered, or each must have agreed to accept joint responsibility for the representation.”
  • C.   A & B.  V.R.Pr.C. 1.5(e) and last week’s post Thinking about a referral fee? Think “fee division” instead.
  • D.  Neither A nor B.

Question 5

In 1993, Tom Hanks won the Academy Award for Best Actor for his performance in Philadelphia.  In the movies, Hanks’ character had a lawyer named Joe Miller.  The lawyer attended a Halloween party in which his “costume” was printouts of statutes taped to his work outfit.

The character who played the lawyer had previously won the Academy Award for Best Supporting Actor in a movie set during the Civil War and would later win the Academy Award for Best Actor for his portrayal of an unethical police officer.  In 2018, he was nominated for the Best Actor Oscar for a movie in which he played a lawyer who impermissibly disclosed confidential information related to the representation of a client in order to collect the award for providing information that would lead to the arrest of someone wanted by law enforcement.

Name the actor. Bonus: what was his Halloween costume in Philadelphia?

Denzel Washington played Attorney Joe Miller in Philadelphia.  For Halloween, he was a “law suit.”

Five for Friday #265 (and 5 Halloween Costumes)

Happy Friday!

Many thanks to all who reached out, especially those who made the trip to NYC.  Much appreciated!

So, it’s Halloween weekend. A lazy blogger might use the occasion to publish his third annual ranking of the Halloween candies.[1]

Not me!

Especially since my top 4 remain unchanged – $100 Grand, Peanut Butter Cup, Baby Ruth, Peanut M&M’s – and I don’t want my inbox flooded with messages of abject astonishment that (insert an inferior candy bar here) wasn’t included.

No, instead, I’m marking the holiday with a different type of list: some of my mom’s favorite Halloween pictures of The First Brother and me when we were kids.  Feel free to join the fun by sending pictures Halloween of younger you.  Word to the (un)wise: submissions will be published.

My mom sent me many pics. Those that follow reflect conversations we had about this project, my desire not to have certain images in the public domain, and the fact that I’m the Chief Justice of a one-person court that has ultimate editorial control over these pages.  Without further ado, let’s hop in a time machine and travel to the early 1970s and, for one, the late 60s!

#5

This clown is The First Brother when he was in 1st grade. I include it only to compare to later pictures that will make clear The First Brother’s capacity to pull off a variety of roles.

#4

This is me as a pirate. I was in 3rd grade.  Apparently third graders of the day believed that pirates looked more intimidating when biting their lips.  Also, in that I wore it over my sweater, I assume the vest conveyed some sort of rank among my fellow buccaneers. The sweater must’ve been one of my favorites. I also wore it for that year’s school picture.

#3

This is The First Brother when he was 6.  Are you telling me that detective wasn’t going to solve the case??? Come on! He’s a perfect combination of Hercule Poirot, Inspecter Clouseau, and James Bond.  No wonder he went on to read every book in The Hardy Boys series in a single summer.

#2

This is me when I was 15 months old.  My mom sewed orange crepe paper to my snowsuit and passed me off as a pumpkin. Judging from my expression, I can only surmise I’d just looked in the mirror and noticed the hat.

#1

This is the one that The First Brother and I will always remember. I’m 5, he’s 3.  I’m in a sailor suit that a neighbor had outgrown.  Apparently an oft forgotten aspect of the 70s is the decade’s active secondary market for children’s sailor suits. Anyhow, it’s not me that has this Halloween seared in our memories. 

My brother is wearing his green snowsuit.  It was actually green, no crepe paper required. My mother wrote “spinach” on his forehead. 

We trick-or-treated as Popeye and his trusty can of spinach.

Happy Halloween! 

Onto the quiz!

Rules

  • None.  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

This week is National Celebrate Pro Bono Week.  Citing one of the 7Cs of Legal Ethics, lawyers often express reluctance to do pro bono work. There’s no need to fear! Indeed, here’s one of the comments to the rule that sets out the duty that lawyers worry that they might violate if they take a pro bono case in a practice area with which they’re not too familiar.  Which C?

  • “A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar.  Some important legal skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study.”

Question 2

Which is in a different rule than the others?

  •  A.  Same or substantially related matter.
  •  B.  Materially adverse interests.
  •  C.  Informed consent, confirmed in writing.
  • D.  Remonstrate with the client and, if necessary, take reasonable remedial measures.

Question 3

There’s a rule that includes an exception for when a person is seeking a second opinion.  The rule addresses _______:

  • A.  conflicts of interest.
  • B.  the situations in which a fee agreement must be reduced to writing.
  • C.  communicating with a represented person.
  • D.  advertising & client solicitation.

Question 4

Attorney referred Client to Lawyer.  Lawyer completed the representation and billed Client.  Lawyer and Attorney have agreed that, given the referral, Lawyer will share the fee with Attorney.  What else must happen?

  • A.   The overall fee must be reasonable, and client must agree in writing to the division.
  • B.   Lawyer and Attorney must divide the fee in proportion to services rendered, or each must have agreed to accept joint responsibility for the representation.”
  • C.   A & B.
  • D.  Neither A nor B.

Question 5

My first year in a law school, one of my friends showed up for a Halloween party. As best as I could figure, he was dressed as a Victoria’s Secret model. Then, he explained it to me. He’d written “Id,” “Ego,” and “Superego” on his garment. He was a Freudian Slip.

In 1993, Tom Hanks won the Academy Award for Best Actor for his performance in Philadelphia.  In the movies, Hanks’ character had a lawyer named Joe Miller.  The lawyer attended a Halloween party in which his “costume” was printouts of statutes taped to his work outfit.

The character who played the lawyer had previously won the Academy Award for Best Supporting Actor in a movie set during the Civil War and would later win the Academy Award for Best Actor for his portrayal of an unethical police officer.  In 2018, he was nominated for the Best Actor Oscar for a movie in which he played a lawyer who impermissibly disclosed confidential information related to the representation of a client in order to collect the award for providing information that would lead to the arrest of someone wanted by law enforcement.

Name the actor. BONUS – what was his Halloween costume in Philadelphia? The one where he taped printouts of statutes to clothes.


[1] 2020’s flawed rankings are here.  2021’s atonement is here.