Monday Morning Honors

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

HONOR ROLL

ANSWERS

Question 1

Person calls Lawyer.  Person tells Lawyer “I have an attorney, but I’d like a second opinion.”  Lawyer is not otherwise involved in the matter in which Person has an attorney.

True or False?

Lawyer must not discuss the matter with Person unless Person’s attorney consents.

FALSE.  Per Rule 4.2, while representing a client in a matter, a lawyer shall not communicate on the subject of representation with another person who the lawyer knows is represented in the matter.  A sentence in Comment [4] states that “this rule [does not] preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter.”  The Reporter’s Note to the 2009 Amendment to Comment [4] “clarifies that Rule 4.2 does not preclude communication from a represented person who is seeking a second opinion from a lawyer who is not representing a person in the matter.”

Question 2

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.

Rule 1.15(c) requires fees paid in advance to be deposited in trust until earned.  The only exception is a fee that the lawyer & client have agreed to treat as earned upon receipt and that has been memorialized as required by Rule 1.5(f). I discuss the distinction in this CLE videoFlat Fees, Misappropriation & Trust Account Scams (35 minutes).

Question 3

Last month, Person met with Lawyer to discuss the possibility of forming a lawyer-client relationship.  It was their only meeting or conversation.  Last week, Person informed Lawyer that Person has decided not to retain Lawyer and will retain another attorney. You may assume that Person met with Lawyer in good faith.

Which is most accurate?

  • A.  Lawyer is not bound to keep Person’s confidences.
  • B.  Lawyer owes the same duty of confidentiality as would be owed to any current or former client.
  • C.  The rules do not address this situation.  The rules refer only to duties owed to clients who form professional relationships with lawyers.
  • D.  That consultation better have been virtual!

Per Rule 1.18(b), “even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation” except as otherwise permitted or requied by the confidentiality rules that apply to current and former clients.

Question 4

For conflicts purposes, which do the rules treat differently than the others?

  • A.  a former client conflict that arises when Lawyer moves from private practice to government practice.
  • B.  a former client conflict that arises when Lawyer moves from government practice to practice.
  • C.  a conflict that arises from a Lawyer’s personal interest that would not create a significant risk of materially limiting the representation if handled by another attorney in Lawyer’s firm
  • D.  The rules treat each the same. None is imputed to the other lawyers in Lawyer’s firm/office.

For A & B, Rule 1.11 permits screening when lawyers move to and from government practice.  Option C is direct from Rule 1.10(a), the rule that otherwise imputes conflicts to all members of the affected lawyer’s firm.

Question 5

This is my personal all-time favorite and is my only concession to 200 being anything other than something.  There’s a hint into the intro.

It’s a good thing Michael Scott isn’t a lawyer.  In an episode of The Office, Michael ran over a co-worker in the company parking lot. He was driving a company car. When asked by an HR rep if the accident happened on company property, Michael replied:

  • On company property, with company property.”

Then, citing to the Bill of Rights, Michael said So . . .  we’re fine.”

What legal theory found in the Bill of Rights did Michael mistakenly think rendered him and the company “fine?”

DOUBLE JEOPARDY.  Then after Toby remarks that he doesn’t think Michael understands how this works, Michael adds “I’m sorry.  What is Double Jeopardy?”

No don't sue me that's exactly the point I'm trying not to make ...

Five for Friday #200

Good morning!

200 is something.

I meant that literally.  200 is, well, something.  What it is is beyond me.  But it’s definitely something.

One of the things I learned from my mom is that society values numbers that end “0.” We’ve conferred upon them a status we’ve not afforded to the other numbers.

For instance, why’s a 10th anniversary more special than a 9th or 11th?  Why aren’t the clues in Double Jeopardy worth $442, $842, $1242, $1642, and $2042?  Virtual cocktail tonight?  Perfect! Let’s say 6:03.

She’s right!

(Which is why I never set the microwave to a time that ends in 0. Bad luck!)

Anyhow, that’s what I mean by “200 is, well, something.”

But 200 is also this.  When it comes to the things that we track and celebrate, nobody gets to 200 on their own.  The only reason I’m typing this column today is because people read it.  So, today’s message is simple: thank you.

Thank you to everyone who’s ever read this blog, forwarded it to another, submitted answers to one of the quizzes, or shared with me a with a personal story prompted by one of mine.  The Friday column is, by far, the most enjoyable thing I’ve done in the all the years I’ve worked in the Professional Responsibility Program.

And that is something for which I’ll always be grateful.

Thank you!

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 don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

Person calls Lawyer.  Person tells Lawyer “I have an attorney, but I’d like a second opinion.”  Lawyer is not otherwise involved in the matter in which Person has an attorney.

True or False?

Lawyer must not discuss the matter with Person unless Person’s attorney consents.

Question 2

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 3

Last month, Person met with Lawyer to discuss the possibility of forming a lawyer-client relationship.  It was their only meeting or conversation.  Last week, Person informed Lawyer that Person has decided not to retain Lawyer and will retain another attorney. You may assume that Person met with Lawyer in good faith.

Which is most accurate?

  • A.  Lawyer is not bound to keep Person’s confidences.
  • B.  Lawyer owes the same duty of confidentiality as would be owed to any current or former client.
  • C.  The rules do not address this situation.  The rules refer only to duties owed to clients who form professional relationships with lawyers.
  • D.  That consultation better have been virtual!

Question 4

For conflicts purposes, which do the rules treat differently than the others?

  • A.  a former client conflict that arises when Lawyer moves from private practice to government practice.
  • B.  a former client conflict that arises when Lawyer moves from government practice to practice.
  • C.  a conflict that arises from a Lawyer’s personal interest that would not create a significant risk of materially limiting the representation if handled by another attorney in Lawyer’s firm.
  • D.  The rules treat each the same. None is imputed to the other lawyers in Lawyer’s firm/office.

Question 5

This is my personal all-time favorite and is my only concession to 200 being anything other than something.  There’s a hint into the intro.

It’s a good thing Michael Scott isn’t a lawyer.  In an episode of The Office, Michael ran over a co-worker in the company parking lot. He was driving a company car. When asked by an HR rep if the accident happened on company property, Michael replied:

  • On company property, with company property.”

Then, citing to the Bill of Rights, Michael said So . . .  we’re fine.”

What legal theory found in the Bill of Rights did Michael mistakenly think rendered him and the company “fine?”

The Office Quotes (NBC)

 

 

Five for Friday #175: Superstitions & Expiration Dates

Happy Friday!

On the superstition spectrum, I’m much closer to Steve Wonder

Image result for stevie wonder very superstitious

than I am to Michael Scott.

Image result for michael scott superstitious

That being said, Friday the 13th doesn’t bother me.  No, when it comes to superstitions, most of mine relate to sports or food.  In fact, I’m using today’s intro to ask my readers to weigh in on a particular of my food superstitions, one that is not shared by two of my most loyal readers.  More on that in a moment.

First, my food-related superstitions include:

  • it’s bad luck to set a microwave for a time that ends in 0.  (e.g.: 1: 59 is far safer than 2:00.)
  • it’s bad luck to pour the cream or milk after you’ve poured the coffee. put the cream or milk in first, then the coffee. Always.
  • in a restaurant, it’s bad luck to disclose your order to someone you’re eating with before you announce the order to the server;
  • in a restaurant, it’s bad luck to order the same thing as someone eating with you.
  • thus, it’s obvious that, in a restaurant, it’s bad luck not to order last.

(Don’t worry, over dinner, my wit, charm, and conversational skills will cleanse your palate of how insufferable I was prior to ordering.)

Fact:  I live my life by the superstitions listed above.  However, I write today for your input on the food-related superstition that is most critical to my belief system: expiration dates.

I treat consuming food after the expiration date like Taylor Swift treats getting back together: never ever.   Literally.  If the expiration date is the 15th, I might not even consume it on the 13th.  There is zero chance that I will use it on the 16th.  To me, this isn’t even a superstition.  It’s science.

Now, as I mentioned,  at least two of my most loyal readers disagree with me on this issue.  I’m not sure that I should I identify them.  Thus, to protect their anonymity:

  • each has a first name that begins with J;
  • one has known me for every single second of my life; and,
  • the other works for the Vermont Bar Association.

Their cavalier attitudes towards expiration dates leaves me worried for their health.  Seriously.   I’m not talking about using something a day or two after the deadline.  I’m talking weeks!  That’s not wellness!

So, here’s what we’re going to do.   I’ve set up a poll.  It’s here.  Please weigh in on this important issue. You don’t have to take the legal ethics quiz to do so. .

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

Which is most accurate?  By rule, a lawyer shall ___________:

  • A.  reasonably consult with the client about the means by which the client’s objectives are to be accomplished.
  • B.  abide by the client’s direction as to the means by which the client’s objectives are to be accomplished.
  • C.  B, unless to do so would violate the Rules of Professional Conduct.
  • D.  None of the above.  The rules require a lawyer to abide by the client’s objectives but are silent as to the means by which those objectives are accomplished.

Question 2

By rule, when representing a client, a lawyer shall not communicate with a person who is represented by another lawyer absent the consent of the other lawyer.

True or False: the rule only applies if the represented person’s interests are adverse to the interests of the lawyer’s client.

Question 3

Lawyer called me with an inquiry.  I listened then said “there are 3 exceptions to the rule.  The first is if the testimony relates to an uncontested issue.  The second is if the testimony relates to the nature and value of legal services rendered in the case.”

Given my response, the testimony of who?

  • A.   an expert witness
  • B.   Lawyer’s former client, and former client is adverse to Lawyer’s current client
  • C.   a lawyer
  • D.  Lawyer’s client, and Lawyer’s client suffers from a diminished capacity.

Question 4

By rule, Disciplinary Counsel and the Supreme Court are authorized to conduct & order, respectively, compliance reviews & audits of a lawyer or law firm’s:

  • A.  financial records
  • B.  financial records, including trust accounts
  • C.  financial records, including trust & fiduciary accounts
  • D.  C, but only upon receipt of information sufficient to establish that there is probable cause for the compliance review or audit.

Question 5

Privileges, confidences, conflicts.

In real-life, Paul Giamatti’s father, Bart, served as Commissioner of Major League Baseball.  There, Bart effectively disbarred Pete Rose by banning him from the sport.

On television, Paul Giamatti plays Chuck Rhoades, United States Attorney for the Southern District of New York.  Initially, the show focuses on Rhoades’ fixation with building a criminal case against Bobby Axelrod, an incredibly wealthy hedge fund trader who owes much of his fortune to gains made as a result of the 9/11 terrorist attacks.  A complicating factor?  Rhoades’ wife, Wendy, is a psychiatrist who works as a “performance coach” at Axe Capital, the hedge fund owned by Axelrod.

Central to the show’s plot are Wendy’s relationships with Rhoades and Axelrod, and the issues related to privileges, confidences, and conflicts that arise as a result.

Name the show.

Image result for bobby wendy chuck one picture

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Five for Friday #113

Welcome to #113!

#113 on Friday the 13th?  Whoa.

Unlike Michael Scott, I’m not just a little stitious.  I am super stitious.

Take the quiz at your own peril!

Most of my superstitions involve sports or eating.  I’m not going to go into great detail about them.  I suppose I could simply tell you that, like birthday wishes, it’s bad luck to share superstitions.

Of course, that would be a lie.  It is not bad luck to share superstitions.  And one of my superstitions is that it’s bad luck to lie about superstitions.  So, I’ve no choice but to confess the true reason that I’m not going to go into great detail about my superstitions:

I don’t feel like blogging today.

(echoes of “hallelujah!” are reverberating throughout the Champlain Valley)

Suffice to say, the Red Sox likely wouldn’t have won the 2004 World Series had I not stood while they were in the field and sat while they batted during the final 3 gut-wrenching games of the ALCS against the Yankees.

Oh, and if you want to ensure the best possible meal when eating at a restaurant, keep the following in mind:

  • order last;
  • don’t tell anyone what you’re going to order;
  • have a few options, because it’s horrible luck to order the same thing as someone else with whom you’re eating.

Trust me.

These things are endearing when you first get to know me.  Not so much as our relationship evolves.  At least that’s what I’ve been told.

Onto the quiz!

Rules

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Even question 5!
  • 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

How about a 50/50 to start?

There’s a rule that “a lawyer shall not engage in undignified or discourteous conduct which is degrading or disruptive to a tribunal.”

Does the rule apply to depositions?

Yes or no.

Question 2

By rule, when must a lawyer provide a client or third person with a full accounting of funds or property that the lawyer held for the client or third person?

  • A.  upon request by the client or third person
  • B.  upon the termination of the representation
  • C.  monthly
  • D.  regularly

Question 3

True or false.

In an ex parte proceeding, a lawyer does not have a duty to inform the tribunal of material facts that are adverse to a client’s position.

Question 4

Lawyer works at Firm.  In addition, Lawyer often provides short-term legal services under the auspices of programs sponsored by nonprofits and a local court.  When providing such services, neither Lawyer nor clients have an expectation of continuing representation.

As such, while providing the short-term legal services,

  • A.  Lawyer’s duty of competence is relaxed.
  • B.  The trust accounting rules do not apply.
  • C.  Client’s statements to Lawyer are not confidential.
  • D.  The conflicts rules are relaxed.

Question 5

When you believe in things that you don’t understand, then you suffer.  Superstition ain’t the way.

Johanan Vigoda was a lawyer.  In 1971, Vigoda helped a client who was a musician to negotiate a contract with a record company.  Per the terms of the contract, the musician had to pay 6% in royalties to Vigoda indefinitely & forever, including to Vigoda’s heirs after Vigoda’s death.

Vigoda died in 2011.  In 2013, the musician learned that the record company was still making royalty payments to Vigoda’s widow.  The musician ordered the payments to stop.  The musician sued, seeking an order that he was not required to continue to pay royalties beyond Vigoda’s death.  The musician claimed that Vigoda had duped him into signing the contract, never telling him that it called for “forever” royalty payments.

Vigoda’s widow counter-claimed.  She claimed that Vigoda’s regular practice was to read the terms of any proposal, agreement, or contract to the musician. Thus, she alleged that the musician had agreed to and signed the contract after Vigoda read it to him.   She sought more than $7 million in royalty payments that had not been made between 2013 & 2015.  Last summer, the musician and Vigoda’s widow settled the dispute.

Name the musician.  (the writing should be on the wall.)

the-quiz

 

 

 

 

Tuesday Morning Answers – Holiday Quiz

You know this blog has established itself when, on Christmas Day, my mom somewhat ruefully notes that she wishes she hadn’t given me a Runner’s World calendar, but a Taylor Swift one instead.

Friday’s quiz is here.  The answers follow today’s Honor Roll.

Swift Christmas

Honor Roll

Answers

Question 1

Attorney represents Egg and Nog.   They’ve been charged with criminal conspiracy to face unafraid the plans that they’d made.

Undeterred by Comment 23 to Rule 1.7 (conflicts), but motivated by a desire to comply with Rules 1.1 (competence) and 1.3 (diligence), Attorney tracks down a key witness: Parson Brown.  Parson Brown agrees to an interview, but only if it’s outside.

What’s Parson Brown made of?

Snow.  Parson Brown is a character in Walking in a Winter Wonderland.

Question 2

My posts on legal ethics & marijuana are here.

Having secured an acquittal for Egg & Nog by successfully employing the “but it was just a dream by the fire!” defense, Attorney is back at it: representing new co-defendants.   Tommy and Marin have been charged with possession of extraordinarily large quantities.

Upon concluding an initial interview with Tommy and Marin, Attorney called me with an inquiry about Attorney’s duties under Rule 1.14 (client with diminished capacity.) Here’s our exchange:

  • Attorney – Mike, i don’t want my license to go up in smoke.  I’ve got co-defendants, Tommy & Marin.  Tommy thinks that Santa is a band! When I told him Santa isn’t a band, he thought maybe Santa was a Motown singer.  When I asked him how he didn’t know who Santa is, he replied ‘yeah, well, I’m not from here, man. Like, I’m from Pittsburgh, man. I don’t know too many local dudes.’
  • Me – Interesting.
  • Attorney:  And Marin isn’t much better.  He kinda knows who Santa is.
  • Me – Kinda?
  • Attorney.  Yeah.  He thinks that Santa and Mrs. Claus used to live in his neighborhood before getting evicted and  moving up north to start a commune with some of their friends.  Marin told me that Mrs. Claus used to make the best brownies in the neighborhood. He also thinks that Santa shut down the commune so as not to risk getting stopped at the border and found with the ‘magic dust’ that he feeds to his reindeer.

Who are Attorney’s clients better known as?

Cheech & Chong.  See, Santa Claus and his Old Lady

Question 3

Lawyer represents Client.  Client is charged with kidnapping Clarice and assaulting a gallant suitor who attempted to free her.  Client is also charged with the felony murder of one Yukon Cornelius.  Yukon is presumed dead.  He disappeared off a cliff during the daring rescue mission of Clarice and her suitor that Yukon carried out with an heretofore incompetent dentist.

But lo’ and behold, the prosecutor learns that Yukon is alive and well!  As required by Rule 3.8(d), prosecutor notifies Lawyer and, then, as required by Rule 3.1, dismisses the felony murder charge.

Lawyer works diligently to convince prosecutor to drop the remaining charges.  After all, despite a monstrous reputation, Client is winning in the court of public opinion.  If only because Client’s physical stature comes in handy during the holidays.

Who is Lawyer’s client?

Bumbles bounce! Bumble the Abominable Snow Monster

Bumble

Question 4

Attorney represents Michael Scott’s co-workers.  They have filed a civil suit against him & Dunder Mifflin.  The suit makes various tort claims related to the undisputed fact that, in the middle of the The Office’s holiday party, Michael unilaterally changed its format.

Attorney is mindful of the duties imposed by Rule 1.8(g). (aggregate settlement in a matter involving 2 or more clients.)

In any event, the party format was advertised as, and actually began as, “Secret Santa.” Upset with how things were going, Michael switched it to a different format.

Name the format.

Yankee Swap

Gifts

Question 5

Lawyer called me with an inquiry.  Lawyer’s questions related to Rule 1.18 (prospective clients) and Rule 3.1 (meritorious claims).  Per Lawyer:

  • Lawyer:  Mike, last week, I met with Cady Heron.  She wants to sue to expand the holiday season so that it officially begins on October 3.
  • Mike:  Wait.  What?
  • Lawyer:  Umm, exactly.  She said that’s the day that her crush, Aaron, first talked to her.
  • Mike:  Wow. I don’t know what to say.
  • Lawyer:  Well, maybe I’ll just ignore her.  I mean, she’s not very nice.  Plus, I refused to take a retainer.
  • Mike:  Because her claim is frivolous?
  • Lawyer: No.  Because she wanted to pay by credit card and I told her that I don’t take The Plastic.

Sadly, this scene didn’t make it past the cutting room floor.  Had it, I wouldn’t be here today.

Name the movie.

Mean Girls

October 3rd.jpg

Monday Morning Answers: Constitution Day

Friday’s quiz took a break from ethics and focused on the Constitution.  It’s here.  Spoiler alert: the answers follow the Honor Roll.

HONOR ROLL

Gold = Perfect Score

  • Beth DeBernardi, Disciplinary Counsel
  • Laura Gorsky, Law Offices of David Sunshine
  • Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
  • Elizabeth Kruska, Marsicovetere Law Group
  • Wesley Lawrence, Theriault & Joslin
  • Tom Little, Little & Cicchetti
  • Hal Miller, First American
  • Allison Wannop, Law Clerk, Vermont Superior Court, Addison & Chittenden Units

ANSWERS

Question 1 (2 parts, 1 point each)

James Madison was 1 of 2 future US Presidents to sign the Constitution.  His lifelong home was an estate in Orange County, Virginia. Vermonters should recognize the name of Madison’s estate.

  • What was the name of Madison’s estate?:  MONTPELIER
  • Who was the other future US President to sign the Constitution? GEORGE WASHINGTON

Question 2

What’s the subject of the most recently ratified amendment?

  • A.  Congressional salaries.  The 27th Amendment.  It prohibits congressional raises from taking effect until the next session of Congress.  It was ratified in 1992.  Strangely, it was presented for ratification by the States in 1789, as part of the original Bill of Rights. Thus, not only is it the most recent amendment, it is the one that took the longest to ratify.
  • B.  Equal Rights
  • C.  Presidential Succession
  • D.  Poll Taxes

Question 3

Top 5?

Especially in election years, the 1st and 2nd Amendment are often in the news.  Most lawyers remember studying the 4th & 5th in law school.  That leaves #3. What does the 3rd Amendment prohibit?

The quartering of soldiers in private homes.

Question 4 (Author & Title: 1 point each)

These statements refer to the Constitution.  The same author wrote each, and each appears in the same place.  Please identify the author and what you’re reading if you come across the statements.

  • “To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?
  • “It is emphatically the province and duty of the Judicial Department to say what the law is.”

Chief Justice John Marshall in Marbury v. Madison.

Question 5

In an episode of The Office, Michael Scott ran over a co-worker in the company parking lot. He was driving a company car. When asked by an HR rep if the accident happened on company property, Michael replied:

  • “It was on company property, with company property.”

Then, citing a clause in the Bill of Rights, Michael said “So,  _______, we’re fine.”

What legal theory found in the Bill of Rights did Michael mistakenly think rendered him and the company “fine?”

Double Jeopardy.   Script below, the video is HERE.

 

Ryan: Did this happen on company property?
Michael Scott: It was on company property, with company property. So, double jeopardy, we’re fine.
Ryan: I don’t think– I don’t think you understand how jeopardy works.
Michael Scott: Oh, I’m sorry. What is, ‘we’re fine’?