Lionel Hutz

Monday Morning Honors: #196

Michael

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

Special honors to Deb Bucknam.  Deb follows the blog and, after reading Friday’s post, sent me an email encouraging to me stay positive. Deb is leading by example.  She’ll probably be upset that I’m blogging this, but, oh well.

My blog mentioned my aunt and grandmother and how, even when down, they stayed positive and put others first.  It also mentioned the stories I’d heard last week of so many others doing the same in a trying time: staying kind, supporting others.  Deb’s email added to the list of stories and reminded me of Nanny and Aunt Kate.

First, she gave me a chuckle by remarking that it’s not too difficult to social distance on her 100-acre farm, Then, she mentioned that she’s buying gift cards from local restaurants & donating them to staff at Northeastern Vermont Regional Hospital.

Great idea Deb! Kudos!

Honor Roll

  • Evan Barquist, Montroll Backus & Oettinger
  • Penny Benelli, Dakin & Benelli
  • Andrew Delaney, Martin Delaney & Ricci Law Group
  • Erin Gilmore, Ryan Smith & Carbine
  • Laura Gorsky, Esq.
  • Robert Grundstein, Esq.
  • Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
  • Deborah Kirchwey, Esq.
  • Elizabeth Kruska, President-Elect, VBA Board of Managers
  • John Leddy, McNeil, Leddy, & Sheahan
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Jeffrey Messina, Bergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Herb Ogden, Esq.
  • Dan Richardson, Tarrant Gillies & Richardson
  • Kristen Shamis, Monaghan, Safar, Ducham
  • Jay Spitzen, Esq.
  • Jonathan Teller-Elsberg, Vermont Law School, JD Candidate

Answers

Question 1

The phrase “in the same or a substantially related matter” appears in the rule on:

  • A.  former client conflicts.  V.R.Pr.C. 1.9(a).
  • B.  disclosing client confidences.
  • C.  dealing with an unrepresented person.
  • D.  ex parte communication with a tribunal.

If the matter is the same as or substantially related to a matter in which a lawyer represented Former Client, a lawyer cannot represent a person whose interests are materially adverse to Former Client’s unless Former Client gives informed consent, confirmed in writing.

Question 2

Which is associated with a different rule than the other 3?

  • A.  Records documenting receipts & disbursements.
  • B.  Records documenting timely reconciliation
  • C.  Lateral transfers.
  • D.  Wire transfers.

A, B, and D relate to trust accounting.  “Lateral transfers” are lawyers who move from one private firm to another.  Rule 1.10(a) applies.  For more, see this blog post.

Question 3

Attorney called me with an inquiry.  I listened, then replied “well, it’s been that way for about 20 years now.  It was that long ago that the rule was changed to make it clear that it not only applies to ‘parties,’ but to any person who is represented in the matter.”

Given my response, what rule did Attorney call to discuss?

Rule 4.2.  It’s the rule that prohibits communication with a represented person on the subject of the representation.  In January, I posted The No-Contact Rule.

Question 4

Lawyer called me with an inquiry. I listened, then said: “I suggest that, unless the client agrees, the lawyer decline and require a subpoena.  Then, generally, the duty is to raise all non-frivolous defenses in a motion to quash.”

It’s most likely that Lawyer called to discuss _________________:

  • A.  receiving a request to testify against a former client about the representation of the former client.
  • B.  receiving notice that Disciplinary Counsel intends to audit Lawyer’s trust account.
  • C.  A or B.
  • D.  Neither A nor B. Another issue altogether.

By rule, lawyers “shall submit” to Disciplinary Counsel’s confidential compliance exams. V.R.Pr.C. 1.15A(b). Thus, I have not advised lawyers to decline and require subpoenas.

Question 5

Earlier this week, I made this 35-minute video in which I discussed the 7 C’s of legal ethics.  The Cs include “candor” and “communicating reasonable expectations to clients.”  It’s a concept that reminds me of one of my favorite quotes from a fictional lawyer.

While operating “I Can’t Believe It’s a Law Firm!” in a shopping mall, the fictional lawyer often skirted, if not flagrantly violated, the ethics rules.  As far as heeding my advice to set reasonable expectations, the lawyer once said to a client:

  • ““Mr. Simpson, the state bar forbids me from promising you a big cash settlement.  But just between you and me, I promise you a big cash settlement.”

Looping in candor, and as Kruska, President-Elect of the Vermont Bar Association, reminds me, the lawyer’s business card was an exercise in vocab gymnastics:

Image result for lionel hutz

Seems pretty clear to me.

Name the fictional lawyer.

Lionel Hutz.

Image result for lionel hutz

Monday Morning Answers #171

Michael

Welcome to Monday!

Friday’s questions are here.  The answers (including to last weeks’ Final Jeopardy clues) follow today’s Honor Roll.

Honor Roll

Answers

Question 1

There’s a rule that prohibits a lawyer from disclosing information related to the representation of a client.  The rule encompasses:

  • A.  more information than is covered by the attorney-client privilege.  See, Rule 1.6, Comment 3: (“The confidentiality rule . . . applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever the source.)
  • B.  less information than is covered by the attorney-client privilege
  • C.  the exact same amount of information as is covered by the attorney-client privilege.
  • D.  I object to the premise of the question.  In fact, there is no such rule.

Question 2

Is the following statement true or false?

  • When a prospective client meets with but does not retain a lawyer, nothing in the Rules of Professional Conduct requires the lawyer to keep confidential the information that the prospective client shared in connection with the consultation.

FALSE.  Rule 1.18(b).

Question 3

Lawyer called me with an inquiry.  Here’s my response:

  • “By rule, you may do so, but only for the sole purpose of paying service charges or fees on the account, and only in an amount necessary for that purpose.”

Do what?

Deposit Lawyer’s (or Firm’s) own money into a client trust account.  See, Rule 1.15(b).

Question 4

With respect to testimony, which is appears in a different rule than the others?

The testimony:

  • A.  relates to an uncontested issue.
  • B.  relates to the nature and value of legal services rendered in the case.
  • C.  was offered by the lawyer’s client, was material, and the lawyer comes to know that it was false.
  • D.   Not one.  They each appear in the same rule.

A & B appear in Rule 3.7, the rule that applies when a lawyer is a witness.  C is in Rule 3.3, the rule on candor to a tribunal.

Question 5

Lionel Hutz was one of the most incompetent, unethical lawyers in the history of television.  Yet, the family at the center of one of TV’s longest running series continually hired him.

In one notable episode, Hutz sued a restaurant on behalf of a family member who was shut off despite the restaurant’s ads for an “all you can eat” seafood night.  Upon hearing the man’s story, Hutz responded “this is the most blatant case of fraudulent advertising since my case against the movie ‘The Never-Ending Story!’”

In another case, Hutz represented the man’s son after the boy had swallowed a piece of metal that was in a cereal box.  Hutz recovered $100,000 for the boy and kept $99,500 as a fee.

Earlier this year, the show was renewed for its 31st and 32nd seasons.  Yet, following Phil Hartman’s death in 1998, Hutz’s character was largely retired and hasn’t had a speaking role since.

Name the TV show.

The Simpsons. No less than THREE different readers reminded me that Hutz taught us the importance of proper punctuation.  I love my readers!

 

Image result for lionel hutz no money down

**************

In case you’re interested, here are the Final Jeopardy clues that flummoxed contestants this week.  Answering them is NOT required to enter this week’s quiz. I include them only for those who might be mildly interested.

I was 2-4. I didn’t get Monday’s or Wednesday’s.

Monday

  • Category:  Landmarks
  • “David Livingstone wrote of this discovery of his, ‘Scenes so lovely must have been gazed upon by angels in their flight.’”

What is Victoria Falls?

Tuesday

  • Category: Toys & Games
  • “The prototype for this game that was introduced in 1948 was called Lexiko.”

What is Scrabble?

Wednesday

  • Category: Children’s Authors
  • “This author and illustrator who won the 1964 Caldicott Medal was dubbed ‘The Picasso of Children’s Books.”

Who is Maurice Sendak?

Thursday

  • Category: 1970’s Album Reviews
  • “Rolling Stone said this 1976 album had ‘the best & worst tendencies of L.A. situated rock’ and was an ‘unflattering portrait of the milieu.’”

What is Hotel California?

Five for Friday #171

Michael 1 Comment

Welcome to Friday!

If you’re on vacation, stop reading now!  Wednesday’s post explains why.

If you’re still reading, I wasn’t going to post a quiz today.  I’m not much into blogging during July.  Never have been, never will be.

I am, however, into Jeopardy. Even in July, I watch nearly every night, if only to catch Final Jeopardy.

Image result for images of final jeopardy

This week, the contestants’ performance on Final Jeopardy has been nothing short of miserable.

Through 4 nights, the contestants have combined to go 3-12 on the final question.

Yikes!

Tough questions? You can decide for yourself: I’ve pasted them in below the quiz.  But it’s also possible that contestants didn’t practice.

My good readers: we shall practice! And we shall do so 1 week and 5 questions at a time.  After all, in the real world, on the horns of an ethics dilemma, 3 for 12 ain’t gonna cut it.

Therefore, as little as I like blogging in July . . .

. . . onto the quiz!

Rules

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception – but one that is loosely enforced – #5 (“loosely” = “aspirational”)
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

There’s a rule that prohibits a lawyer from disclosing information related to the representation of a client.  The rule encompasses:

  • A.  more information than is covered by the attorney-client privilege
  • B.  less information than is covered by the attorney-client privilege
  • C.  the exact same amount of information as is covered by the attorney-client privilege.
  • D.  I object to the premise of the question.  In fact, there is no such rule.

Question 2

Is the following statement true or false?

  • When a prospective client meets with but does not retain a lawyer, nothing in the Rules of Professional Conduct requires the lawyer to keep confidential the information that the prospective client shared in connection with the consultation.

Question 3

Lawyer called me with an inquiry.  Here’s my response:

  • “By rule, you may do so, but only for the sole purpose of paying service charges or fees on the account, and only in an amount necessary for that purpose.”

Do what?

Question 4

With respect to testimony, which is appears in a different rule than the others?

The testimony:

  • A.  relates to an uncontested issue.
  • B.  relates to the nature and value of legal services rendered in the case.
  • C.  was offered by the lawyer’s client, was material, and the lawyer comes to know that it was false.
  • D.   Not one.  They each appear in the same rule.

Question 5

Lionel Hutz was one of the most incompetent, unethical lawyers in the history of television.  Yet, the family at the center of one of TV’s longest running series continually hired him.

In one notable episode, Hutz sued a restaurant on behalf of a family member who was shut off despite the restaurant’s ads for an “all you can eat” seafood night.  Upon hearing the man’s story, Hutz responded “this is the most blatant case of fraudulent advertising since my case against the movie ‘The Never-Ending Story!'”

In another case, Hutz represented the man’s son after the boy had swallowed a piece of metal that was in a cereal box.  Hutz recovered $100,000 for the boy and kept $99,500 as a fee.

Earlier this year, the show was renewed for its 31st and 32nd seasons.  Yet, following Phil Hartman’s death in 1998, Hutz’s character was largely retired and hasn’t had a speaking role since.

Name the TV show.

**************

In case you’re interested, here are the Final Jeopardy clues that flummoxed contestants this week.  Answering them is NOT required to enter this week’s quiz. I include them only for those who might be mildly interested.

I was 3-4. I didn’t get Wednesday’s.

Monday

  • Category:  Landmarks
  • “David Livingstone wrote of this discovery of his, ‘Scenes so lovely must have been gazed upon by angels in their flight.'”

Tuesday

  • Category: Toys & Games
  • “The prototype for this game that was introduced in 1948 was called Lexiko.”

Wednesday

  • Category: Children’s Authors
  • “This author and illustrator who won the 1964 Caldicott Medal was dubbed ‘The Picasso of Children’s Books.”

Thursday

  • Category: 1970’s Album Reviews
  • “Rolling Stone said this 1976 album had ‘the best & worst tendencies of L.A. situated rock’ and was an ‘unflattering portrait of the milieu.'”

 

 

 

 

Monday Morning Answers: #119

Michael

Welcome to Monday!

Friday’s questions are here.  The answers follow today’s honor roll.

Honor Roll

Answers

Question 1

Lawyer used to represent Client.   Per the Rules of Professional Conduct, which situation is different from the others?

  • A.  Client files disciplinary complaint against Lawyer.
  • B.  Client sues Lawyer for malpractice.
  • C.  Client posts negative online review about Lawyer.
  • D.  Client files petition for post-conviction relief alleging that Lawyer failed to provide effective assistance of counsel.

Rule 1.6(c)(3) permits but does not require lawyers to disclose otherwise confidential information “to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client . . . [or] to respond to allegations in any proceeding concerning the lawyer’s representation of the client.” Per Comment [12], the rule can “arise in a civil, criminal, disciplinary, or other proceeding.”

A, B, and D are “controversies” or “proceedings” that trigger the rule. At the end of this post you’ll see a digest of cases & opinions that make clear that a negative online review is not a “controversy” or “proceeding” for the purposes of the rule.  

Caveat: any disclosure made pursuant to the rule should be limited to respond only to the specific controversy or allegation, and, if made in court, should include reasonable efforts to limit access to the information to people who need to know. Comment [14].

Finally, as noted by ABA Formal Opinion 10-456, a criminal defense lawyer should raise, or give the former client an opportunity to raise, all non-frivolous arguments against waiving the attorney-client privilege.

Question 2

Lawyer called me with an inquiry. I listened, then replied:  “I disagree. I wouldn’t call without permission. The rule applies to ‘matters’  Litigation doesn’t have to be pending for there to be a ‘matter.’ ”

What rule? (the topic of the rule is fine)

Communicating with a represented person.  See, Rule 4.2.

Question 3

Per the rule, an attorney shall not “prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless __________”

  • A.    The attorney or recipient is related to the client.  Rule 1.8(c).  Comment [7] suggests that a non-relative cannot waive the protection of this rule.
  • B.     The client gives informed consent
  • C.     The client gives informed consent, confirmed in writing
  • D.    The client is given a reasonable opportunity to seek independent legal advice

Question 4

If you go to one of my seminars and hear me babbling about stuff that’s “onsite, online, and air-gap,” it’s most likely that I’m talking about:

  • A.  Trust accounting software
  • B.  The duty to safeguard electronically stored client information.  See: Ransomware & Cybersecurity Insurance
  • C.  Software that assists with conflict checks
  • D.  The duty of competence insofar as it relates to online legal research

Question 5

Speaking of frivolous claims . . .

Lionel Hutz is a fictional lawyer.  On behalf of a client, he sued The Frying Dutchman restaurant over its “All You Can Eat” offer.  Hutz referred to the offer as “the most blatant case of fraudulent advertising since my suit against the film The Never Ending Story.”

In another episode, the same client retains Hutz as a result of Hutz’s slogan “Cases won in 30 minutes or your pizza is free.”  Thinking he lost the case, Hutz gave the client and the client’s family a box of pizza.  The client’s wife pointed out that they won the case. Hutz responded that the pizza box was empty anyway.

How’d Hutz get a law license? I don’t know. But I do know that he claimed “I’ve attended Harvard, Yale, MIT, Oxford, the Sorbonne, and the Louvre.”

You might know the actor who voiced Hutz better for his roles on Saturday Night Liveand NewsRadio.

Name the client.

Homer Simpson

See the source image