Monday Morning Honors #258

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

Honor Roll

  • Karen Allen, Karen Allen Law
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, UIC School of Law
  • Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labo
  • Andy Delaney, Martin Delaney & Ricci
  • Cary Dube, Bergeron Paradis & Fitzpatrick
  • Erin Gilmore, Ryan Smith & Carbine
  • Benjamin Gould, Paul Frank + Collins
  • Harrison GregoireJD Candidate, Syracuse LawSummer Intern, Gale & McCallister
  • Robert Grundstein
  • Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
  • John T. Leddy, McNeil Sheehan & Leddy
  • Kevin Lumpkin, Sheehey Furlong & Behm
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeff Messina, Messina Law
  • Hal Miller, Hawaii Agency Underwriting Counsel, First American Title
  • Team MOB
  • Nikki Stevens, Firm Administrator, Langrock Sperry & Wool
  • Jonathan Teller-Elsberg, Sheehey Furlong & Behm
  • The Honorable John Valente, Vermont Superior Judge
  • Jason Warfield, J.D.

 Answers

Question 1

According to the Rules of Professional Conduct, which of the 7 Cs of Legal Ethics is implicated when a lawyer provides “financial assistance to a client in connection with pending or contemplated litigation?”

Conflicts.  The quote is from paragraph (e) of Rule 1.8 – Conflict of Interest – Current Clients – Specific Rules

Question 2

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

“Be wary of disclosing too much. I think it’s best to cite to the specific provision of the rule that either requires it or allows it. Then, if the court asks for additional detail, provide it. I’ll send you a case from Tennessee in which a lawyer was publicly reprimanded for disclosing too much information in a motion, even though the trial court granted the motion.”

What did Attorney call to discuss?  Filing ______

  • A.  a motion to withdrawFor more, see Stop Making Noise.
  • B.  an ex parte motion.
  • C.  a motion to disqualify the judge.
  • D.  a motion to disqualify opposing counsel.

Question 3

 There’s a rule that governs “pooled interest-bearing trust accounts.”  Nobody I know calls such accounts by their formal name.  Anyhow, what is a pooled interest-bearing trust account?

  • A. unethical and prohibited by the rule.
  • B. an account that’s better known as an “operating account.”
  • C. an account that generates interest that a lawyer must remit to the client.
  • D. an account that generates interest that a lawyer must remit to the Vermont Bar Foundation. Rule 1.15B – Pooled Interest-Bearing Trust Accounts

Question 4

 Later today, I’m presenting at the Defender General’s Annual Training.  While I don’t plan to address this rule, there’s a rule that states that a criminal defense lawyer “may nevertheless so defend the proceeding as to require that every element of the case be established.”  Generally, what does the rule prohibit?

  • A.  Representing a client at a trial in which the lawyer will be a necessary witness.
  • B.  Frivolous claims and contentions.  Rule 3.1 – Meritorious Claims and Contentions
  • C.  Conflicts of Interest.
  • D.  False statements of material fact to a tribunal.

 Question 5

 William Saxbe was born on June 24, 1916. He was a lawyer who served as Ohio’s Attorney General, a United States Senator, and United States Attorney General.

In 1966, while serving as Ohio Attorney General, Saxbe argued before the United States Supreme Court.  The case involved Sam Sheppard, a doctor who had been convicted of murdering his wife.  The US Supreme Court reversed the conviction, citing, among other things, a “carnival atmosphere” that had permeated the trial and the trial judge’s bias against the defendant.  In a retrial, Dr. Sheppard was acquitted.

In the U.S. Supreme Court and at the retrial, Dr. Sheppard was represented by a well-known lawyer who has since been disbarred.  During the retrial, the lawyer argued that the prosecution’s case was “ten pounds of hogwash in a 5-pound bag.”

The case inspired a novel and a hit movie starring Harrison Ford and Tommy Lee Jones.

Name the movie and the now disbarred lawyer who represented Dr. Sheppard.

The Fugitive & F. Lee Bailey

Monday Morning Honors #252

Happy Monday!

Many thanks to the Young Lawyers Division of the Vermont Bar Association for putting on another fantastic event in Montreal this weekend. It was great to see so many people in-person. And how about that weather?!?!  Count me as a fan of an April/May Thaw!

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

Honor Roll

  • Karen Allen, Karen Allen Law
  • Evan Barquist, Montroll Oettinger Barquist
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, University of Illinois at Chicago Law
  • Corinne Deering, Paul Frank + Collins
  • Benjamin Gould, Paul Frank + Collins
  • Robert Grundstein
  • Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
  • Jeanne Kennedy, JB Kennedy Associates, Mother of the Blogger
  • John T. Leddy, McNeil Leddy & Sheahan
  • Tom Little, Little & Cicchetti
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
  • Herb Ogden, Esq.
  • Margaret Olnek, Divorce Coach, Assistant Professor, Vermont Law School
  • Jonathan Teller-Elsberg, Sheehey Furlong & Behm
  • Jason Warfield, J.D.
  • Thomas Wilkson, Jr., Cozen & O’Connor

ANSWERS

Question 1

Lawyer works at Firm. If Lawyer has a conflict of interest that prohibits Lawyer from representing Client, which type of conflict is least likely to be imputed to the other attorneys in Lawyer’s firm? A conflict that arises from:

  • A.  Lawyer’s representation of a former client.
  • B.  Lawyer’s current representation of another client.
  • C.  a personal interest of Lawyer’s. V.R.Pr.C. 1.10(a)
  • D.  trick question. In VT, all conflicts are imputed to others in the same firm.

Question 2

Can a lawyer accept compensation from someone other than the client?

  • A. Yes, but only if the payor is related to the client.
  • B. Yes, but only if the payor is the client’s insurance company or employer.
  • C.  Yes, if the client gives informed consent, the payor doesn’t interfere with the lawyer-client relationship, and information relating to the representation of the client is not disclosed to the payor except as authorized by the rule on client confidences. V.R.Pr.C. 1.8(f).
  • D.  A & B.

Question 3

Under Vermont’s rules, if a lawyer reasonably believes that a client intends to commit an act that will result in the death of or substantial bodily harm to the client, the lawyer ____:

  • A.  must disclose client’s intention.
  • B.  must not disclose the client’s intention.
  • C.  may disclose the client’s intention. V.R.Pr.C. 1.6(c); See, Cmt. [10].
  • D.  It depends on how old the client is.

Question 4

Lawyer called me with an inquiry related to a potential conflict between a prospective client and a former client. We discussed the distinction between the lawyer’s general knowledge of the former client’s policies and practices, versus the lawyer’s knowledge of specific facts gained during the prior representation that are relevant to the new matter.

As such, it’s most likely that Lawyer’s former client is _________:

  • A.  a minor.
  • B.  an organization. V.R.Pr.C. 1.9, Cmt. [3].
  • C.  deceased.
  • D.  represented by a law firm that once employed Lawyer.

Question 5

The Thaw is on my mind.

With “most” defined as “all,” most of my knowledge of the British Commonwealth’s legal system comes from tv and movies. Last week, I binged Anatomy of a Scandal. Set in England, here are the lawyers who appeared in a criminal trial:

Englih Lawyer

A few years ago, I loved the Australian show Rake. Here’s the star:

Rake

So, if I bump into a Canadian lawyer in Montreal, I might ask the lawyer if they have a peruke. It’s altogether possible that the lawyer will have no idea what “peruke” means. If so, what’s the word I’ll use instead? The more common term for a “peruke?”

Negative infinity points for any smart aleck comments that I should get my own a peruke.

A wig that English barristers wear in court.  Perukes are no longer worn in court in Canada.

Monday Answers #245: the Sac-O-Suds!

Happy Monday morning!

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

Honor Roll

  • Matt Anderson, Pratt Vreeland Kennelly Martin & White
  • Evan Barquist, Montroll Oettinger & Barquist
  • Penny Benelli, Dakin & Benelli
  • Andrew Delaney, Martin Delaney & Ricci
  • Heather Devine, Tarrant Gillies Shems
  • Bob Fletcher, Stitzel Page & Fletcher; President, Vermont Bar Association,
  • Bob Grundstein
  • Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
  • Deb Kirchwey, Law Office of Deborah Kirchwey
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeffrey Messina, Messina Law
  • Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
  • Herb Ogden, Esq.
  • Keith RobertsDarby Kolter & Roberts
  • Brice Simon, Breton & Simon
  • Jonathan Teller-Elsberg, Sheehey Furlong & Behm
  • Jason Warfield, J.D.

answers

Question 1

 The following are exceptions to a particular rule.

  • to establish a claim or defense in a controversy between the lawyer and client;
  • to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved; or,
  • to respond to allegations in any proceeding concerning the lawyer’s representation of the client.

The rule addresses one of the 7 Cs of Legal Ethics.  Which one?

CONFIDENTIALITY.  See, V.R.Pr.C. 1.6.  The listed exceptions are in paragraph (c)(3), the so called “self-defense” exception.

 Question 2

Fill in the blank.

A comment to one of the conflicts rules states that “continued common representation will almost always be inadequate if one client _________________.”

  • A.  pays a higher percentage of the lawyer’s fee than the other client.
  • B.  is also a former client, but in an unrelated matter.
  • C.  is the lawyer’s main contact on matters related to the representation.
  • D.  asks the lawyer not to disclose to the other client information relevant to the common representation.  See, V.R.Pr.C. 1.7, Cmt. [31].

 Question 3.

Notwithstanding a conflict of interest, a lawyer may represent a client if

  • A. The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client and the representation is not prohibited by law.
  • B.  The representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal.
  • C.  Each affected client gives informed consent, confirmed in writing.
  • D.  A, B, and C.  These are the elements set out in Rule 1.7(b).

Question 4

Lawyer called with an inquiry. I listened, then responded:

  • “There’s no rule that specifically prohibits it. But the fee must be reasonable, you must comply with the rule on business transactions with a client, and you should consider whether it would create a personal interest that would materially limit your ability to provide the client with competent and candid legal advice.”

Given my response, it’s most like that Lawyer called to ask about:

  • A.  a contingent fee.
  • B.  accepting an ownership interest in a client’s business as payment for legal fees.
  • C.  representing a family member.
  • D.  marrying a client.

Karen Rubin is a lawyer (and friend of this blog) who writes for The Law for Lawyers Today. Last year, Karen posted Take stock instead of legal fees? Take a hard look and mind the ethics rules.

Question 5

In the introduction, I mentioned something that I saw on Twitter the other day.  Another thing that I saw on Twitter this week was this:

I agree!

Here’s today’s question:

Vinny’s clients were charged with robbing and shooting a store clerk.  However, when they were arrested, they thought it was for accidentally shoplifting.  While at the store, Vinny’s cousin didn’t pay for an item he had put in his pocket because his hands were full.

What was the item?   A can of tuna.

Bonus: what’s the name of the store?  Sac-O-Suds

Sac O Suds

Monday Morning Answers #243

Welcome to Monday! Friday’s questions are here.  The answers follow today’s Honor Roll.  Before I get to the answers, a few comments.

First, many thinks to all who weighed-in on the date beyond which it’s no longer appropriate to wish “Happy New Year” to someone you’ve yet to encounter in the calendar year.  Your responses are fodder for a stand-alone column that I hope to post tomorrow!

Also, on Friday, I suggested that today’s answers would be posted via video or podcast, with The First Brother appearing as a guest to offer the non-lawyer perspective.  Well, I failed to check with him prior to making that suggestion and as it turns out, he had other plans this weekend.

With that, I’m off to shovel.  Again.

Honor Roll

  • Evan Barquist, Montroll Oettinger & Barquist
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor of Law, University of Illinois Chicago
  • Andrew Delaney, Martin Delaney & Ricci
  • Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Bonneau Kennedy, Mother of the Blogger
  • Nicole KilloranProfessor, Vermont Law School
  • Elizabeth Kruska, Immediate Past-President, Vermont Bar Association Board of Managers
  • Cassandra Larae-Perez, Gravel & Shea 
  • John LeddyMcNeil, Leddy & Sheahan 
  • Pam Loginsky, Washington State Association of Prosecutors 
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid 
  • Jeffrey Messina, Messina Law 
  • Hal Miller, First American Title Insurance, Hawaii Agency State Counsel 
  • Herb Ogden
  • Keith Roberts, Darby Kolter & Roberts 
  • Jonathan Teller-Elsberg, Sheehey Furlong & Behm 
  • Rachel Trow, Legal Assistant, Shoup Evers & Green
  • The Honorable John Valente, Vermont Superior Judge 
  • Jason Warfield, J.D. 

Answers

Question 1

Imagine a CLE at which I address the distinction between “public record” and “generally known.”

Which 2 of the 7 Cs of Legal Ethics am I most likely to mention?

  • A.  Conflicts & Communication.
  • B.  Conflicts & Confidentiality.
  • C.  Confidentiality & Communication.
  • D.  Confidentiality & Candor.

V.R.Pr.C. 1.9 sets out a lawyer’s duties to former clients.  Rule 1.9(c)(1) prohibits a lawyer from using confidential information relating to the representation of a former client “to the disadvantage of the former client.”  One exception is unless “the information has become generally known.”  The law is clear that information that is “public record” is not necessarily “generally known.” 

 Meanwhile, Rule 1.7(a)(2) prohibits a lawyer from representing a client if there is a significant risk that the representation will be materially limited by the lawyer’s duties to, among others, a former client.  Thus, a lawyer has a conflict whenever there is a significant risk that the duty imposed by Rule 1.9(c)(1) will materially limit the representation of another client.   

 As such, when discussing the distinction between “public record” and “generally known,” I’m most likely to refer to conflicts and confidentiality.

Question 2

Office employs Paralegal.  In a new matter, Paralegal has a conflict that would prohibit Paralegal from accepting the representation if Paralegal were a lawyer.  Which is most accurate?

  • A.  Paralegal’s conflict is imputed to all lawyers in Office and Office must decline the representation.
  • B.  Paralegal’s conflict is imputed, but only to any lawyer at Office who regularly supervises Paralegal.
  • C.  A comment to one of the rules indicates that while Paralegal’s conflict is not imputed to any lawyer at Office, Paralegal should be screened from involvement in the new matter.  See, V.R.Pr.C. 1.10, Comment [4].
  • D.  Fake question. In Vermont, conflicts are not imputed from one lawyer to others in the same office, and they certainly aren’t imputed from non-lawyers to lawyers.

 Question 3

 Lawyer referred Client to Attorney.  Lawyer and Attorney do not work in the same firm.  Can Attorney share part of the fee with Lawyer?

  • A. No.
  • B. Yes, if the fee division is in proportion to the work done by each, or, each assumes joint responsibility for the representation.
  • C. Yes, if Client agrees, the fee sharing agreement is confirmed in writing, and the total fee is reasonable.
  • D.  B & C.  See, V.R.Pr.C. 1.5(e).  See also, Referral Fee? Think Thrice.

Question 4

 Client contacts Lawyer. Client explains that they are represented by Attorney in a matter.  Client wants a second opinion.   Lawyer is not otherwise involved in the matter.

True or False?

Vermont’s rule prohibits Lawyer from communicating with Client about the matter without Attorney’s consent.

False.  See, V.R.Pr.C. 4.2, Comment [4], and Reporter’s Notes – 2009 Amendment.

Question 5

A famous jurist was in the news this week.  The jurist made headlines for donating $5 million to her law school to fund scholarships – full tuition and books – for 10 women.  In addition, upon completing their first year of law school, each scholarship recipient will receive an offer of a summer fellowship with the jurist.

The jurist’s granddaughter, Sarah Rose, is currently a 3L at the same law school.  Sarah also works as a law clerk for her grandmother on their latest streaming venture.

Name the jurist.   Bonus: name the law school.

Judith Sheindlin, aka, “Judge Judy.”  New York Law School.   Among other, ABC News reported the story.

judge judy

Monday Morning Answers: #241

Merry Monday!

Friday’s questions are here. The video version of today’s answers is here.  It’s about 12 minutes long and includes a bit more explanation than follows below.  Otherwise, the answers follow today’s Honor Roll.  Congrats (and thank you) to all who entered!

Honor Roll

  • Karen Allen, Karen Allen Law
  • Matthew Anderson, Pratt Vreeland Kennelly Martin & White
  • Alberto Bernabe, Professor of Law, University of Illinois Chicago
  • Penny Benelli, Dakin & Benelli
  • Andrew Delaney, Martin Delaney & Ricci
  • Heather Devine, Tarrant, Gillies, Shems
  • Robert Grundstein
  • Glenn Jarrett, Jarrett & Luitjens
  • Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
  • Elizabeth Kruska, Immediate Past-President, Vermont Bar Association Board of Managers
  • John Leddy, McNeil, Leddy & Sheahan
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeffrey Messina, Messina Law
  • Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
  • Keith Roberts, Darby Kolter & Roberts
  • Jonathan Teller-Elsberg, Sheehey Furlong & Behm
  • The Honorable John Valente, Vermont Superior Judge
  • Jason Warfield, J.D.
  • Thomas Wilkinson, Cozen O’Connor

Answers

Question 1

 I often refer to the 7 Cs of Legal Ethics.  Professor Alberto Bernabe, a regular member of the Honor Roll, uses a similar construct.  He suggests that students in his Professional Responsibility class remember the “bad grades.”  That is, the Cs, a D, and an F.

Professor Bernabe’s Cs are the same as mine.  The “F” is for “fiduciary.” 

What duty does the “D” stand for?

DILIGENCE.  V.R.Pr.C. 1.3

Question 2

 Prospective Client contacted Lawyer seeking representation in a matter in which Prospective Client’s interests are materially adverse to the interests of one of Lawyer’s former clients.  The new matter is substantially related to the matter in which Lawyer represented Former Client.  However, Lawyer does not remember anything about the representation of Former Client and no longer has access to the file.

Which is most accurate?

  • A.  Because the matters are substantially related to each other, Lawyer is presumed to have received confidential information from Former Client.
  • B.  Because the matters are substantially related to each other, Former Client will not be required to disclose confidences in order to protect them.
  • C.  A & B.  Here’s a video in which I discuss this concept.
  • D.  Whether Lawyer can represent Prospective Client necessarily turns on how long ago the representation of Former Client ended.

Question 3

 Lawyer called me with an inquiry. I listened, then replied: “I wouldn’t call without permission. I understand your point about the matter not yet being in litigation. But the rule isn’t limited to matters that are in litigation. It applies to any matter.”

What’s the topic of the rule I referenced?

COMMUNICATION WITH A REPRESENTED PERSON.  V.R.Pr.C. 4.2

Question 4

 What type of conflict is less likely to be imputed to other lawyers in the same firm as the conflicted lawyer?

  • A.  a conflict between a former client & current client
  • B.  a conflict between current clients
  • C.  a conflict arising from a personal interest of the disqualified lawyer.  See, V.R.Pr.C. 1.10(a).
  • D.  Trick question.  In VT, all conflicts are imputed to others in the same firm.

Question 5

Some people like question 5 to be about pop culture. Others don’t.  Today it’s a bit of both.

Rule 1.2(d) prohibits a lawyer from assisting or advising a client to commit a crime.  The rule draws no distinction between state & federal crimes or between crimes that the government enforces more or less vigorously than others.  As such, the rule used to cause concern for Vermont lawyers representing clients involved in a particular industry.  So much concern that, several years ago, we amended the rule. 

As amended, a new comment clarifies that a lawyer may assist and advise a client on the scope, validity, and meaning of Vermont law that governs a particular product, as long as the lawyer also advises the client as to the potential consequences of the conduct under federal law and policy.

Question:   What industry or product?

Bonus:  Name the celebrity whose famous holiday song uses the product in a rhyme with the holiday.

Double Bonus:   Name the other product that the celebrity uses to rhyme with both the first product and the holiday in a version of the song.  The second product doesn’t raise concerns about Rule 1.2(d) or assisting/advising a client to commit a crime, but it might have during prohibition.

Cannabis/Marijuana is the product.

 Adam Sandler:  The Hanukkah Song

 Gin & Tonic. (marijuanukkak, gin & tonikkah)

adam-sandler-600x450

Monday Morning Answers #240

Attention!  New blog feature!  I recorded this video in which I go over the answers to Friday’s quiz in more detail than I do in the post.

Anyhow, good morning and welcome to the week!  While I’m a fan of a long December, musically too, I worry that the remainder will blow by before I know it. Or, worse, January will feel even longer.

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

Honor Roll

  • Karen Allen, Karen Allen Law
  • Barquist, Montroll Oettinger & Barquist
  • Alberto Bernabe, Professor of Law, University of Illinois Chicago
  • Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labor
  • Andrew Delaney, Martin Delaney & Ricci
  • Benjamin Gould, Paul Frank + Collins
  • Robert Grundstein
  • Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
  • Deb Kirchwey, Law Office of Deborah Kirchwey
  • Aileen Lachs, Esq.
  • Kevin Lumpkin, Sheehey, Furlong & Behm
  • Pam Loginsky, Pierce County (WA) State’s Attorney’s Office
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeffrey Messina, Messina Law
  • Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
  • Herb Ogden, Esq.
  • Dan Richardson, Burlington City Attorney
  • Jonathan Teller-Elsberg, Sheehey Furlong & Behm
  • The Honorable John Valente, Vermont Superior Judge
  • Jason Warfield, J.D.
  • Thomas Wilkinson, Cozen O’Connor
  • Zachary York, Paralegal, Sheehey Furlong & Behm

Answers

Question 1

I often blog and talk about the 7 Cs of Legal Ethics

This “C” does not appear by word in the Rules of Professional Conduct. That said, and as the Vermont Supreme Court has indicated, it’s a serious violation of the trust accounting rules.

COMMINGLING.  One reader responded “conversion.”  100% correct.  So, let it know be known that “commingling” and “conversion” share a seat on the ship that sails the 7Cs of legal ethics.

Question 2

 Fill in the blank.

 Every now and then I’ll receive an inquiry in which a lawyer asks whether there are any pitfalls in allowing someone other than the client to _____________.  Referring to the three-prongs of the applicable rule, I respond:

  • Make sure you get your client’s informed consent.
  • Don’t let the person interfere with your independent professional judgment or your attorney-client relationship.
  • Don’t disclose confidential information to the person without your client’s consent.

Given my response, it’s most likely that lawyer asked whether there are any pitfalls in allowing someone other than the client to _______________:

  • A.  Serve as a go-between between the lawyer and the client.
  • B.  Make decisions that ordinarily are reserved for the client.
  • C.  Sit in for the client at a mediation that is likely to cause the client undue stress.
  • D.  Pay the lawyer to represent the client.

 V.R.Pr.C. 1.8(f).

Question 3

 Fill in the blank.  Again.  This time without a menu of choices.

 A comment to one of the rules includes the following statements.  The same word correctly fills in each blank.

  • “[An] action is not ____________ even though the lawyer believes that the client’s position ultimately will not prevail. The action is ___________, however, if the lawyer is unable to make a good faith argument on the merits of the action.”

What’s the word?

FRIVOLOUS.  See, V.R.Pr.C. 3.1, Comment [2].

Question 4

 A version of “fill in the blank.”

During a CLE, I say something like this:

  • “Comment [3] to the rule addresses whether matters are ‘substantially related.’ It includes a sentence that makes clear that we will not require the _____________ to disclose confidential information to keep the lawyer from using it in the subsequent matter.”

I was discussing the rule that governs:

  • A.  Conflicts between current clients.
  • B.  A lawyer’s duties to former clients.
  • C.  Candor to a Tribunal.
  • D.  A rule that is not listed in choices A, B, or C.

V.R.Pr.C. 1.9(a).  The rule applies even if the lawyer does not remember anything from the prior representation.  That is, if the new matter is substantially related to the old, the former client will not be put to the Hobson’s Choice of disclosing confidences to protect them.

Question 5

 In the introduction, I alluded to stress that can come with the holiday season. 

Last month, a judge in Georgia made national news after tweeting a mock order banning a popular holiday item from the judge’s county. I don’t know whether the attention caused the judge any stress.

Anyhow, the mock order referred to the stress and anxiety that can come to parents who forget to move the item, as well as to children who touch the item and thereby deprive it of its holiday magic.

Name the item.

ELF ON THE SHELF.

 Among others, the ABA Journal, the Atlanta Journal Constitution, and Above The Law reported the story.  The mock order is here

Elf

 

 

Monday Morning Honors #233

Welcome to August!

Friday’s questions are here. The answers follow today’s Honor Roll. But first, a view from Saturday morning’s run: the Thatcher Island Twin Lighthouses off Rockport.

IMG_6074

Honor Roll

Answers

Question 1

Which requires a lawyer to withdraw from representing a client?

  • A.  Continued representation will result in a violation of the Rules of Professional Conduct.
  • B.  The lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.
  • C.  The lawyer is discharged.
  • D.  All the above.

 A, B, C are the 3 situations in which V.R.Pr.C. 1.16(a) mandates withdrawal.

Question 2

 Assuming a conflict can be waived under the applicable rule, each affected client must:

  • A.  give informed consent.
  • B.  give informed consent, confirmed in writing.  V.R.Pr.C. 1.7(b)(4).
  • C.  give informed consent, confirmed in writing within a reasonable time after the lawyer commences the otherwise prohibited representation.
  • D. Don’t assume.  In Vermont, no conflicts can be waived.

Question 3

True or False?

By its plain language, the rule on safekeeping a client’s property only applies to a client’s funds.

FALSE.  V.R.Pr.C. 1.15(a) requires a lawyer to safeguard all property that the lawyer holds in connection with a representation, including funds.

Question 4

 Absent consent, the “no contact” rule prohibits communication on the subject of the representation with a represented _______

  • person. V.R.Pr.C. 4.2(a).
  • party.

 Question 5

 If you skipped the intro, you missed a hint.

 Since 2016, two movie stars have been locked in a custody dispute over their 5 children. As a result of a procedure that is confusing to me, they hired a “private judge” who, in May, granted custody to Movie Star #1.  Movie Star #2 objected and moved to disqualify the “private judge” for failing to disclose a prior business relationship with the lawyers who represent Movie Star #1.

Last week, a California court granted the motion, concluding that the private judge had committed an “ethical breach” that may “cast doubt on the judge’s ability to be impartial.”

Name the movie stars.

 Brad Pitt & Angelina Jolie  Among others, The Hollywood Reporter has the story.

Monday Morning Answers #216

Welcome to Monday!

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

Honor Roll

Answers

Question 1

 Lawyer called me with an inquiry. I responded: “the rule only applies to communications about the subject matter of the representation.”

Given my response, it’s most likely that Lawyer called to discuss a communication with _______:

  • A. a reporter. 
  • B.  a person represented by another lawyer 
  • C.  an unrepresented person.  
  • D.  the public (an advertisement)

V.R.Pr.C. 4.2 prohibits a lawyer from communicating on the subject matter of the representation with a person that the lawyer knows or reasonably should know is represented.  Over at The Law for Lawyers Today, Karen Rubin recently posted No DQ for contacting represented party on a different subject, district court says.

Question 2

Having caught up on your latest binge, you unmuted the CLE I was doing via Zoom to hear me say something like: “generally, the rules break them into 3 groups: current, former, and prospective.”

Groups of what?

Clients for the purposes of analyzing conflicts.  See, V.R.Pr.C. 1.7 (current), V.R.P.C. 1.9 (former), and V.R.Pr.C. 1.18 (prospective).

Question 3

 Which is associated with a different rule than the others?

  • A.  continued representation will result in a violation of the rules
  • B.  disclosure is impliedly authorized to carry out the representation. 
  • C.  the client has made allegations concerning the services provided by the lawyer. 
  • D.  the lawyer reasonably believes that the client will commit a criminal act that is likely to result in the death of or substantial bodily harm to someone other than the client.

“A” appears in Rule 1.16 and requires withdrawal from representation.  V.R.Pr.C. 1.16(a)(1).  B, C, and D each appear in Rule 1.6 and permit (B & C) or require (D) a lawyer to disclose otherwise confidential information relating to the representation of a client.

Question 4

V.R.Pr.C. 4.4(b) requires a lawyer who receives a document relating to the representation, that the lawyer knows or reasonably should know was inadvertently sent, to promptly notify the sender.

The rule is not the end of the receiving lawyer’s professional obligations. 

What is the most likely source of additional obligations?

  • A.  the rule that requires lawyers to report misconduct by other lawyers.
  • B.  the rule that prohibits ex parte communications. 
  • C.  the rules on conflicts of interest.  
  • D.  the rules of civil procedure.

 This blog post highlights the additional obligations that arise under the rules of civil procedure.

Question 5

 Tom Girardi is famous trial attorney from California who founded the firm Girardi Keese. He is married to one of the stars of The Real Housewives of Beverly Hills.  Girardi, his wife, and his firm are defendants in a lawsuit that alleges that Girardi embezzled millions in client funds from trust to fund his celebrity lifestyle.

Earlier this week, a federal judge froze Girardi’s and the firm’s assets after finding both in contempt for failing to account for $2 million in client funds.  During the hearing, and as reported by The ABA Journal, the judge said:

“This isn’t that difficult: You learned in law school, we all did, in Ethics 101, that when you get money that belongs to a client you put it in an escrow fund and you don’t touch it.  No matter what your personal financial situation is, no matter what kind of pressures you’re under, if you touch client money you’re going to be disbarred and quite possibly charged criminally.”

Before now, you might not have heard of Girardi. However, if you’re a movie fan, you’ve likely heard of a legal clerk that his firm helped to secure a $355 million dollar settlement in a class action against Pacific Gas & Electric that involved contaminated drinking water.

Name the legal clerk.

Erin Brockovich

brockovich

Monday Morning Answers #211

Welcome to Monday.

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

Honor Roll

 Answers 

Question 1

 I often speak and blog about the 7 C’s of Legal Ethics.  Indeed, I mentioned “competence” above and the 7 Cs were the subject of the first video I uploaded during the pandemic.  Anyhow, here’s a phrase that appears in one of the Rules of Professional Conduct. To which of the 7 C’s does the rule refer?

  • “information relating to the representation, no matter the source.”

Confidentiality.  Per V.R.Pr.C. 1.6(a), a lawyer shall not reveal information relating to the representation of the client.  Comment [3] makes clear that duty of confidentiality is broader than the attorney-client privilege and applies to all information relating to the representation, no matter the source.

Question 2

Red met with Lawyer to discuss potential representation in Red v. Blue. Red chose not retain Lawyer. Now, Blue wants to hire Lawyer.   Under the rules, a factor that Lawyer must consider in deciding whether to represent Blue is whether:

  • A.  During the consult with Red, Lawyer learned information that could be significantly harmful to Red.  
  • B.  Red is likely to proceed pro se instead of finding another attorney.
  • C.  Trick question – there are no circumstances under which Red can ethically represent Blue.
  • D.  Trick question – since Red did not retain Lawyer, Lawyer may absolutely represent Blue.

This is the ”prospective client” scenario.  V.R.Pr.C. 1.18 applies.  A “prospective client” is one who, in good faith, meets with a lawyer to discuss potential representation, but does not retain the lawyer.  The lawyer’s duty of confidentiality applies as if the prospective client retained the lawyer. However, the lawyer’s duty of loyalty is relaxed.  If the lawyer did not receive information that could be “significantly harmful” to the prospective client, the lawyer may represent someone whose interests are adverse to prospective client’s in the same matter that was the subject of the consult.

Question 3

Rule 1.4 requires a lawyer to communicate to a client sufficient information to make adequately informed decisions about the representation.   Some have argued that the duty includes informing the client (a) that the lawyer doesn’t have ________________; or (b) if ____________ lapses during the representation. The Professional Responsibility Board and the Vermont Bar Association recently agreed to form a committee to study the issue.

Which most accurately fills in the blank?

  •  A.  a trust account.
  •  B.  a succession plan.
  •  C.  malpractice/professional liability insurance.
  • D.  a law license.

 Question 4

 Law Firm is short on cash.   Investor offers to provide cash in exchange for an ownership interest in the firm.   May the lawyers at Law Firm agree to the offer?

  • A.  Yes, if Investor doesn’t direct the lawyers’ professional judgment.
  • B.  Yes, if Investor’s name is not added to the firm name.
  • C.  A & B.
  • D.  No.

Many consider the prohibition on non-lawyer ownership and investment in law firms to impede access to justice.  For more, see this blog post.

Question 5

 Speaking of award winners . . .

. . . This is fictional attorney Kim Wexler.  She’s in a tv show.

Kim Wexler

Earlier this year, the show released a series of YouTube videos called “Ethics Training with Kim Wexler.”  In them, and in character, Wexler offers tips on legal ethics and professional responsibility. A few weeks ago, one of the videos won the Emmy Award for Outstanding Short-Form Comedy.

On the show, Wexler’s partner is one of the most unethical lawyers in TV history. A few seasons ago, New Mexico suspended his law license. He’s since regained it.  I imagine he’ll eventually flee the law and work at a Cinnabon in Nebraska.

Name the show.

Better Call Saul.

Attorney Wexler’s legal ethics videos are here.

Saul

Monday Morning Answers #210

I hope everyone made the most of the long weekend.  Friday’s questions are here.  The answers follow today’s Honor Roll.

Authentic wins the Kentucky Derby - CNN
I picked wrong again.

Honor Roll

  • Matthew AndersonPratt Vreeland Kennelly & White
  • Evan BarquistMontroll Backus & Oettinger
  • Alberto Bernabe, Professor, John Marshall Law School
  • Beth DeBernardi, Administrative Law Judge, VT Dept. of Labor
  • Erin GilmoreRyan Smith & Carbine
  • Robert Grundstein, Esq.
  • Jeanne Kennedy,  JB Kennedy Associates, Blogger’s Mom
  • John LeddyMcNeil Leddy & Sheahan
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Hal Miller, First American
  • Jim Runcie, Ouimette & Runcie
  • Jay Spitzen, Esq.
  • Jonathan Teller-Elsberg, Hershenson. Carter, Scott & McGee
  • Thomas Wilkinson, Jr., Cozen O’Connor
  • Zachary York, Child Support Specialist II, Office of Child Support 

Answers

Question 1

Can a lawyer accept compensation from someone other than the client?

  • A.  Yes, but only in insurance defense matters.
  • B.   Yes, but only if the client is indigent.
  • C.   Yes, but the rule permitting it also discourages it.
  • D.   Yes, if the client gives informed consent, the payor doesn’t interfere with the lawyer-client relationship, and information relating to the representation of the client is not disclosed to the payor except as authorized by the rule on client confidences.  V.R.Pr.C. 1.8(f).

Question 2

Consider the following:

  • must be in a writing that is signed by the client.
  • cannot be used for representing a defendant in a criminal case.
  • cannot be based on securing a divorce.
  •  

Here, we’re talking about:

  • A.   Contingent Fees.  V.R.Pr.C. 1.5(c).
  • B.   Flat Fees
  • C.   An agreement to limit the scope of a representation
  • D.   All the Above

Question 3

A lawyer called me with an inquiry. I listened, then responded “the first question is whether the new matter is the same as or substantially related to the old matter.”

Given my response, the lawyer called to discuss the rule on:

  • A.  file retention
  • B.  fees/trust account management
  • C.  communication with a represented person.
  • D.  a potential conflict of interestV.R.Pr.C. 1.9(a).

Question 4

Here’s a sentence that is in the comment to one of the rules on candor.  Your task is to fill in the blank.

“_________________   partially true but misleading statements or omissions that are the equivalent of affirmative false statements.”

  • A.    A lawyer does not violate this rule by making . . .
  • B.    Misrepresentations can also occur byV.R.Pr.C. 4.1, Comment [1].
  • C.    Negotiations necessarily include . . .
  • D.    According to my dad, Lawyers excel at making . . .

Question 5

The things we do for our clients!!

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

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

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

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

Name the book.

A TALE OF TWO CITIES.