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.

Monday Morning Answers #209

Welcome to a new week. What a difference 72 hours makes!

IMG_5171

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

Honor Roll

Answers

Question 1

Which of the 7 C’s of Legal Ethics includes both wellness and understanding the risks & benefits of relevant technology?

Perhaps a poorly phrased question as I was hurrying to get to the beach. Here, I was thinking “competence.”  V.R.Pr.C. 1.1 sets out the duty.  Comment [8] advises lawyers that the duty includes keeping up-to-date on the risks and benefits of relevant technology, while Comment [9] makes it clear that well-being is an aspect of competence.

Question 2

Lobster and Scallop are neighbors.  Last month, Lobster met with Lawyer to discuss representation in a dispute with Scallop.  Lobster chose not to retain Lawyer.  Now, Scallop wants to retain Lawyer in the same dispute.  Which is most accurate?

  • A.   If Lobster paid Lawyer for the consultation, Lawyer may not represent Scallop.
  • B.   Lawyer may not represent Scallop.
  • C.   Lawyer may represent Scallop.
  • D.   It will depend whether Lobster provided Lawyer with information that could be significantly harmful to Lobster in the dispute.

This is Rule 1.18.  For more on the duties owed to prospective clients, including guidance from a recent ABA Advisory Opinion, see https://vtbarcounsel.wordpress.com/2020/06/11/conflicts-confidences-prospective-clients/this blog post.

Question 3

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

“For it to be okay, 3 things have to happen.  (1) It has to be in proportion to services you render, or, if not, you have to agree to assume joint responsibility for the representation; (2) the client has agree and confirm the agreement in writing; and, (3) the total has to be reasonable.”

What did Attorney call to discuss?

  • A.   a contingent fee agreement.
  • B.   entering into a limited representation agreement.
  • C.   sharing a fee with a lawyer in another firm.  V.R.Pr.C. 1.5(e).
  • D.   settling a malpractice claim with a former client who is not represented by counsel.

Question 4

There’s a rule that prohibits a lawyer from communicating about the subject of the representation with a person that the lawyer knows is represented by another lawyer in the matter.

Which is NOT an exception to the prohibition?

  • A.    The other lawyer consents to the communication.
  • B.    The communication is authorized by law.
  • C.    The represented person initiates the communication.  See, V.R.Pr.C. 4.2, Comment [3].
  • D.    Trick Question.  These are the 3 exceptions to the rule.

Question 5

When in Maine . . .

This well-known lawyer’s former clients include Sam Sheppard, Patty Hearst, O.J. Simpson, and the Boston Strangler.  Florida disbarred the lawyer in 2001, with Massachusetts doing the same in 2003.

In 2014, the Maine Supreme Court issued an order denying the lawyer’s application to be admitted in Maine.  Central to the decision was the $2 million in back taxes that the lawyer owed to the federal government.

Name the lawyer.

F. Lee Bailey.  If you’re interested, here’s a fascinating profile that Town & Country Magazine did of Bailey.

 

Monday Morning Answers #175

Welcome back to another work week. Wherever you are, I hope your Monday weather is as fantastic as it is here at headquarters.

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

Most importantly: you have spoken.  On the issue of expirations dates, here are the results from Friday’s poll:

When it comes to expiration dates on food:

  • 63.3% – I’m like J&J. Expiration dates arrive well before the food goes bad. No mold or odor? It’s fine! 
  • 20% – I’m like Mike & Taylor.  Never, ever after the expiration date.
  • 16.7% – One or two days past is ok, but that’s the max.”

As always, thanks to all who reached out with more specific responses.  I loved every one of them!

Have a great day!

Honor Roll

  • Karen Allen, Esq.
  • Matt AndersonPratt Vreeland Kennelly Martin & White
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, John Marshall Law School
  • Jennifer Emens-Butler, Director of Education & Communication, VBA
  • Erin GilmoreRyan Smith & Carbine
  • Laura Gorsky, Esq.
  • Bob Grundstein, Esq.
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy, JB Kennedy Associates, Blogger’s Mom
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Kevin LumpkinSheehey Furlong & Behm
  • Lon McClintock, Esq.
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Hal Miller, First American
  • Herb Ogden, Esq.
  • Robyn SweetCORE Registered Paralegal, Cleary Shahi  & Aicher
  • Jonathan Teller-Elsberg, Vermont Law School, Class of 2020
  • Jason Warfield, Vermont Law School, Class of 2020

Answers

 

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.

This is the exact language from Rule 1.4(a)(2), the rule that outlines the scope of a lawyer’s duty to communicate with a client.  Per Rule 1.2(a), a client owns the objectives.

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.

FALSE.  Rule 4.2 applies whenever a person is represented.

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.

This is Rule 3.7, Lawyer as Witness.

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.

The authority to conduct & order compliance reviews & audits of a lawyer or law firm’s financial records, including trust and fiduciary accounts appears in Rules 1.15A(b) and 1.15A(c).

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.

BILLIONS

Image result for billions

Monday Morning Answers #173

Welcome to Monday!  Friday’s questions are here.  The answers follow today’s Honor Roll.

PS: as a blogger & son, when you have plans to go to Sunday brunch with your mother, it’s best not to post a Friday blog in which you announce that you don’t have anything special planned for the weekend.  Brunch was extraordinary!  Thanks mom!

Honor Roll

Answers

Question 1

Does the rule on client confidences permit a lawyer to disclose otherwise confidential information related to the representation of a client in order to secure legal advice about the lawyer’s compliance with the Rules of Professional Conduct?

Question 2

There’s a rule that requires lawyers to act with reasonable diligence and promptness while representing a client.  A comment to the rule states that the duty of diligence may require sole practitioners to:

  • A.   use a cloud-based practice management system
  • B.   employ a bookkeeper, at least part-time
  • C.   prepare a succession plan.  V.R.Pr.C. 1.3, Comment [5]
  • D.  all the above

Question 3

There’s a rule that prohibits a lawyer from disbursing funds from trust unless the funds are “collected funds.”

Is the following statement true or false?

“The rule includes an exception that allows a lawyer to disburse funds from trust in reliance upon the deposit of specified instruments, as long as the lawyer reasonably believes that the deposits will clear and constitute collected funds within a reasonable period of time.”

True.  It’s Rule 1.15(g).

Question 4

Attorney called me with an inquiry.  I listened, then replied “by rule, any communication made pursuant to the rule must include the name and office address of at least one lawyer or law firm responsible for its content.”

I was referring to the rule on:

  • A.   Communicating with a represented person
  • B.   Communicating with an unrepresented person
  • C.   Communicating with a prospective juror
  • D.   Advertising.  V.R.Pr.C. 7.2(c)

Question 5

Richard Roberts is a real-life lawyer.  Earlier this week, he was disbarred on consent in New Jersey after being convicted of several crimes, including theft of client funds.

Roberts is a former narcotics detective & prosecutor who gained renowned for his role in the investigation and prosecution of Frank Lucas, an alleged “drug kingpin” in New York City.  Roberts eventually moved into private practice as a criminal defense attorney. Upon switching sides, one of his first clients was Lucas.

The history between Roberts and Lucas was the subject of a 2007 movie in which Russell Crowe played the now-disbarred Roberts and Denzel Washington played Lucas.  Ridley Scott directed.

Name the movie.

AMERICAN GANGSTER

Image result for american gangster images

Monday Morning Answers #168

Happy Monday!

Friday’s questions are here. The answers follow today’s Honor Roll. The race went well, and I recommend a day or two in Portland.

IMG_2851

Honor Roll

Answers

Question 1

What is the quoted language more commonly known as?

  • “a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibility to another client, a former client or a third person . . .”

A concurrenct conflict of interest . See, Rule 1.7(a)(2).

Question 2

Someone Other Than Client (“SOTC”) is paying Lawyer to represent Client. Which is most accurate?

With respect to information related to the representation of Client, Lawyer

  • A.  may disclose to SOTC without Client’s consent;
  • B.  must disclose to SOTC even over Client’s objection;
  • C.  may not disclose to SOTC without Client’s consent or unless disclosure is otherwise authorized by the rules.  Rule 1.8(f)
  • D.  None of the above.

Question 3

Confidences. Competence.  Conflicts.  Candor.  Communication. Civility.

There’s another word that begins with “C” that is a serious violation of the rules. However, the word doesn’t appear in any of the rules, notable in its absence from the trust accounting rules and the rule on safekeeping client property.

What’s the word?

I was looking for “Commingling.”  Several readers ubmitted another answer that I accepted: “Conversion.”

Question 4

Former Client sued Lawyer for malpractice.  Lawyer had represented Former Client in a divorce.  Attorney represented Former Client in the malpractice action.

Attorney proposed a settlement.  Lawyer accepted. The settlement included a provision that Lawyer will not represent clients in divorces for 5 years.

Did either Attorney or Lawyer violate the rules?

  • A.  Yes, Lawyer’s malpractice in the divorce is a per se violation.
  • B.   Yes, Attorney violated the rules by making the offer.
  • C.   Yes, Attorney and Lawyer violated the rules by making and accepting the offer.  Rule 5.6.  This isn’t a common issue, but it came up in an inquiry I received last week.
  • D.  A and B.

Question 5

Increase Mather was born on this day in 1639. Apropos of my intro, many of Mather’s beliefs wouldn’t be acceptable in today’s society.

Yet, one likely stands the test of time.  In his work “Cases of Conscience,” Mather referred to the so-called “Blackstone Ratio,” the idea that it’s better that 10 guilty persons go free than 1 innocent person be punished.

What notorious legal event prompted Mather to write Cases of Conscience?

The Salem Witch Trials

Image result for salem witch trials

 

Monday Morning Answers #167

Hope you enjoyed the weekend!

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

Honor Roll

  • Matt AndersonPratt Vreeland Kennelly Martin & White
  • Evan BarquistMontroll Backus & Oettinger
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, John Marshall Law School
  • Bob Grundstein, Esq.
  • Thomas Kester, Assistant General Counsel. Blue Cross & Blue Shield of Vermont
  • Jim Runcie, Ouimette & Runcie
  • Ian Sullivan, Chief Deputy State’s Attorney, Rutland County
  • Zachary York, Vermont Superior Court, Chittenden Civil 

Answers

Question 1

There’s only one rule that specifically mentions both judges and jurors.

What does the rule prohibit?

Rule 3.5 prohibits ex parte communications with those judges & jurors.

Question 2

There’s a rule that prohibits a lawyer from charging an unreasonable fee.

True or false?

By rule, if the client agrees to and pays a fee, the fee is presumed reasonable.

False. There is no such presumption in Rule 1.5. Also,   See, In re Sinnott, (“Respondent seeks to justify this fee on the theory that it was based on a valid contract that [the client] freely and knowingly signed.   This argument demonstrates respondent’s failure to comprehend the effect of Vermont Rules of Professional Conduct 1.5(a);  lawyers, unlike some other service professionals, cannot charge unreasonable fees even if they are able to find clients who will pay whatever a lawyer’s contract demands,”)

Question 3

Lawyer represented Client.  Once the representation ended, Client gave Lawyer a gift.  Which is most accurate?

  • A.  Lawyer must not accept the gift.
  • B.  Lawyer may accept the gift, but only if Lawyer handled the matter pro bono.
  • C.  Lawyer may accept the gift, especially if it’s a simple gift such as a holiday present or token of the client’s appreciation.  Rule 1.8, Comment [6].
  • D.  Mike, objection.  The premise of this question is pure fantasy.

Question 4

Attorney called me with an inquiry. I listened, then said, “it means:

  • ‘isolation of a lawyer from any participation in a matter through timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these rules or other law.’ “

Given my response, what general issue/topic did Attorney likely call to discuss?

Screening a lawyer from participation in a matter.  See, Rule 1.0(k).

Question 5

Speaking of my presentation to the prosecutors, one of the hottest new streaming shows culminates in the criminal trial of Anatoly Dyatlov, Viktor Bryukhanov, and Nikolai Fomin. In real life, the trial took place in 1987.

Where did the defendants work?

The Vladimir I. Lenin Nuclear Power Station – aka “Chernobyl.”  

I recommend the HBO miniseries.

Image result for vladimir i lenin power station

Monday Morning Answers #166

Happy Monday!

Friday’s questions and the story of the life lesson that Mr. Selby taught me in 6th grade are here.  The answers follow today’s Honor Roll.

Honor Roll

  • Matt AndersonPratt Vreeland Kennelly Martin & White
  • Penny Benelli, Dakin & Benelli
  • Andrew DelaneyMartin & Delaney Law Group
  • Erin GilmoreRyan Smith & Carbine
  • Bob Grundstein, Esq.
  • Mark HeymanGeneral Counsel, Logic Supply
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy, JB Kennedy Associates, Blogger’s Mom
  • Thomas Kester, Assistant General Counsel. Blue Cross & Blue Shield of Vermont
  • Lon McClintockMcClintock Law Offices
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Hal Miller, First American
  • Allison Bates Wannop, Special Counsel, Vermont Department of Public Service
  • WILO
  • Thomas Wilkinson, Jr., Cozen O’Connor
  • Zachary York, Vermont Superior Court, Chittenden Civil 

Answers

Question 1

True of false.

For the purposes of the rule that prohibits conduct that is degrading or disruptive to a tribunal, a deposition is not a tribunal.

FALSE.  V.R.Pr.C. 3.5, Comment [5} (“The duty to refrain from degrading or disruptive conduct applies to any proceeding of a tribunal,  including a deposition.”)  See also, Rule 1.0(m).

Question 2

The following are exceptions to the general prohibition against what?

  • to establish a claim or defense on behalf of the lawyer 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;
  • to respond to allegations in any proceeding concerning the lawyer’s representation of the client.

Disclosing information relating to the representation of a client. V.R.Pr.C. 1.6(c)(3).

Question 3

Only 1 is correct.  Which?

By rule, a lawyer shall:

  • A.   maintain copies of advertisements for 2 years;
  • B.   maintain a copy of the client’s file for 7 years following delivery thereof;
  • C.   maintain trust account records for 6 years following the termination of the representation.  V.R.Pr.C. 1.15(a)(1).
  • D.    Trick question.  Each statement is correct.

Question 4

There’s a rule that prohibits a lawyer from assisting a client in conduct that the lawyer knows is criminal or fraudulent. A few years ago, the Supreme Court promulgated a Comment to the rule to make it clear that a lawyer does not violate the rule by advising clients on matters that are legal under a set of Vermont’s state laws that apply to a specific product/industry.

What is the product/industry?

Cannabis.  See, V.R.Pr.C. 1.2, Comment [14].

Question 5

Robert H. Jackson was an associate justice on the United States Supreme Court from 1941 to 1954.  Prior to his appoint, he served both as United States Solicitor General and United States Attorney General.  He is the only person ever to have held all 3 offices.

In 1945, Jackson took a leave from the US Supreme Court.  He did so after accepting an appointment from President Truman to serve as a special prosecutor.

Identify the proceeding at which Jackson served as a special prosecutor while on leave from the United States Supreme Court.

Image result for robert h jackson closing argument

The  Nuremberg Trials.

Note: Jackson earned wide praise for his opening statement and closing argument.

Opening Statement – Text

Opening Statement – Video

Closing argument – Text

Closing argument – Video

 

Monday Morning Answers #163

Welcome to Monday!

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

Honor Roll

  • Karen Allen, Esq.
  • Alberto Bernabe, Professor, John Marshall Law School
  • CeCe ConradCostello, Valente & Gentry
  • Erin GilmoreRyan Smith & Carbine
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • John LeddyMcNeil, Leddy, & Sheahan
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Kevin LumpkinSheehey Furlong & Behm
  • Lon McClintockMcClintock Law Offices
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Hal Miller, First American
  • Herb Ogden, Esq.
  • Eric ParkerBauer Gravel & Farnham
  • Jim Runcie, Ouimette & Runcie
  • Carie TarteSenior Paralegal, Maley & Maley

Answers

Question 1

By rule, a lawyer shall not make a false or misleading communication about the lawyer or the lawyer services.   Which of the following violate(s) the rule?

  • A.  Material misrepresentations of fact or law.
  • B.  Communications that omit a fact necessary to make the statement, considered as a whole, not materially misleading.
  • C.  Both A & B.   V.R.Pr.C. 7.1
  • D.  Trick question.  There is no such rule.

Question 2

You’re at a CLE.  You hear me say:

  • “The privilege is different from the rule.  The rule talks about ‘information relating to the representation.’ A comment to the rule makes it clear that this encompasses more information than is covered by the privilege.”

What was I talking about?  The rule on:

  • A. Client confidences.  V.R.Pr.C. 1.6 Comment 3
  • B.  A lawyer’s duties upon the receipt of inadvertently produced information.
  • C.  Former Clients.
  • D.  Prospective Clients.

Question 3

Consider the following:

  1. instruments drawn on banks;
  2. checks drawn on an IOLTA of a licensed Vermont lawyer or on the IORTA of a licensed Vermont real estate broker;
  3. checks issued by the United States or the State of Vermont;
  4. personal checks, not to exceed $1,000 in the aggregate per transaction; and,
  5. checks drawn on or issued by insurance companies, title insurance companies, or title insurance agencies that are listed in Vermont.

They are:

  • A. signs of a potential trust account scam.
  • B.  instruments that MUST NOT be deposited into an IOLTA
  • C.  instruments that MUST NOT be deposited into an operating account.
  • D.  instruments that a lawyer may presume to constitute “collected funds” upon deposit.  V.R.Pr.C. 1.15(g) and this blog post from last week

Question 4

There’s a rule that prohibits extrajudicial statements that will have a substantial likelihood of materially prejudicing an adjudicative proceeding.   Which is most accurate?

  • A.  It applies only to the prosecutor in a criminal case.
  • B.  It applies to “any lawyer participating in a criminal case.”
  • C.  There are no exceptions to the general prohibition.
  • D.  It applies to any “lawyer who is participating or has participated in the investigation or litigation of a matter,” whether criminal or not.  V.R.Pr.C. 3.6

Question 5

I’m the chair of the VBA’s Pro Bono Committee.  Also, this evening, I’m speaking at the Vermont Bar Foundation’s Justice Fest.

Cheslie Kryst is an attorney at a firm in North Carolina.  Over the past few years, she provided a significant amount of pro bono work to inmates seeking shorter sentences.  Yes!

Last week, Attorney Kryst made national news.   Why?

  • A. She was crowned Miss USA.  Stories from the ABA Journal and CNN
  • B. She appeared in an episode of Game of  Thrones.
  • C. She became engaged to one of her pro bono clients whose sentence was commuted as a result of her work.
  • D.  She defeated James Holzhauer on Jeopardy, ending his stunning reign as champion.

Image result for cheslie kryst