Monday Morning Answers

Monday Morning Answers #291

Michael

Happy Monday! 

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

Honor Roll

ANSWERS

Question 1

Exceptions to this duty include:

  • to respond to allegations in any proceeding concerning the lawyer’s representation of the client;
  • to establish a claim or defense in a controversy between the lawyer and the client; and,
  • to resolve and detect conflicts of interests arising from a lawyer’s change or potential change of employment.

What duty?  CONFIDENTIALITY – V.R.Pr.C. 1.6

Question 2

Attorney contacted me with an inquiry. I listened, then replied: “the rule requires you to keep it in trust until the dispute is resolved.”  Given my response, it’s most likely that:

Question 3

There’s a rule that sets out the conditions under which a conflict of interest can be waived. One condition is when “each affected client gives informed consent, confirmed in writing.”

Fill-in-the-blanks.  Each correct answer is a form of the same word.

A comment to the same rule states:

“Whether REVOKING consent to the client’s own representation precludes the lawyer from continuing to represent other clients depends on the circumstances, including the nature of the conflict, whether the client REVOKED consent because of a material change in circumstances, the reasonable expectations of the other client and whether material detriment to the other clients or lawyer would result.”

V.R.P.C. 1.7, Cmt. [20]

Question 4

Lawyer works at Firm.  Lawyer and Firm have entered into a written employment agreement that requires Lawyer to pay Firm $1000 for every client that follows Lawyer if Lawyer leaves to work somewhere else.  Which is most accurate? 

  • A.  There is no Vermont Rule of Professional Conduct that addresses this issue.
  • B.  The Vermont Rules of Professional Conduct specifically allow this type of agreement, as long as Lawyer’s payment to Firm does not increase the fee charged to a client who follows Lawyer.
  • C.   Whether the agreement is enforceable will likely turn on an analysis of the Vermont Rule of Professional Conduct that prohibits lawyers from making agreements that restrict their right to practice law.  See, this blog post.
  • D.  Whether the agreement is enforceable will likely turn on an analysis of the rules that govern conflicts of interest.

Question 5

Competence? Threatening criminal prosecution?

In a fictional work published in 1600, Portia was not a lawyer.  However, during a trial central to the plot, she pretended to be both a man and a lawyer.  She “represented” Antonio in a contractual dispute with Shylock.  Shylock had loaned money to Antonio.  When Antonio did not repay the money, Shylock sought the remedy specified in the contract.

Portia asked Shylock to accept recompense other than as stated in the contract – first suggesting that he show mercy to Antonio, next offering to pay Shylock 3 times what Antonio owed.  Still, Shylock refused, insisting that he receive the contractual remedy.

In the end, Portia prevailed, pointing out that the while the contract provided a specific remedy, it did not give Shylock the right to take even a drop of Antonio’s blood. Indeed, the evidence suggests that Portia threatened Shylock with criminal prosecution in order to gain an advantage in the civil matter.

What’s the well-known phrase that, per the contract, was Shylock’s remedy for Antonio’s failure to repay the loan?  POUND OF FLESH

Bonus: what’s the title of the fictional work?  THE MERCHANT OF VENICE

Monday Morning Honors #286

Michael

Happy Monday! 

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

Honor Roll

Answers

Question 1

Speaking of my mother, she’s a member of the Williston-Richmond Rotary Club.  Yesterday, I spoke to the club.  Over the past 12 years, I’ve done more than 300 presentations.  This was the first organized by my mother. The pressure was on!

Anyhow, after outlining the Professional Responsibility Program, I used the 7 Cs of Legal Ethics to explain what the club members should and should not expect from lawyers.  When I asked for guesses as to the 7 Cs, one person said “contact.”  I considered it correct.


Which of the 7 Cs of Legal Ethics did I give the person credit for identifying?

Communication.  The person’s point was that “I’d want my lawyer to stay in contact with me.”

Question 2

Does the confidentiality rule include an exception that allows a lawyer, without the client’s consent, to disclose information necessary to detect conflicts of interests that might arise from a potential change of employment?

  • A.  Yes.  There’s a specific exception that allows such disclosures, but only if the disclosure will not compromise the attorney-client privilege or otherwise prejudice the client.  See, V.R.Pr.C. 1.6(c)(5).
  • B.  A, and only if the lawyer is moving to private practice from government practice.
  • C.  A, and only if the lawyer is moving to government practice from private practice.
  • D.  No.

Question 3

There’s a rule that prohibits a lawyer from entering into a business transaction with a client unless (1) the terms are fair and fully disclosed in a writing that can be reasonably understood by the client; (2) the client is advised in writing of the desirability of seeking independent legal advice related to the transaction; and (3) the client gives informed consent, in writing, to the transaction’s terms and the lawyer’s role in the transaction.

A comment indicates that the rule does not apply to:

  • A.  Ordinary fee agreements.
  • B.  Standard commercial transactions between lawyer & client for goods, services, or products that the client markets to others.
  • C.  Agreements in which the lawyer accepts an ownership interest in the client’s business as a fee.
  • D.  A & B.  V.R.Pr.C. 1.8(a), Cmt. [1].

Question 4

Here’s the lone comment to a particular rule:

“Dilatory practices bring the administration of justice into disrepute. Although there will be occasions when a lawyer may properly seek a postponement for personal reasons, it is not proper for a lawyer to routinely fail to expedite litigation solely for the convenience of the advocates. Nor will a failure to expedite be reasonable if done for the purpose of frustrating an opposing party’s attempt to obtain rightful redress or repose. It is not a justification that similar conduct is often tolerated by the bench and bar. The question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay. Realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client.”

The rule requires a lawyer to:

  • A.  act with reasonable diligence and promptness while representing a client.
  • B.  refrain from conduct that is prejudicial to the administration of justice.
  • C.  provide a client with competent representation.
  • D.  make reasonable efforts to expedite litigation consistent with the interests of the client.

It’s Rule 3.2 – Expediting Litigation.

Question 5

A petition to cancel a registered mark made national news this summer.  The registered mark is a phrase that refers to food and a day of the week.

According to the petition:

  • “Nobody should have exclusive rights in a common phrase.  Can you imagine if we weren’t allowed to say ‘what’s up?’ or ‘brunch’? Chaos.”

The petition went on to indicate the petitioner “seeks no damages; it simply seeks reason and common sense.”

What phrase did the petition seek to cancel as a registered mark?  TACO TUESDAY

Bonus: Who was the petition filed on behalf of? Taco Bell

I blogged about the petition here.

Monday Morning Answers #279

Michael

Happy Monday!

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

Honor Roll

  • Karen Allen, Karen Allen Law
  • Alberto Bernabe, Professor, UIC School of Law
  • Amy Butler, Esq.
  • Andrew Delaney, Martin Delaney & Ricci Law Group
  • Heather Devine, Tarrant Gillies Shems
  • Rick Fadden, Barry Callebaut Group
  • Robert Grundstein
  • Nikolaus Houghton, Facey Goss McPhee
  • Glenn Jarrett, Jarrett/Hoyt
  • Douglas Keehn, Assistant Attorney General, Medicaid Fraud & Residential Abuse Unit
  • Mary Kehoe, Esq.
  • Keith Roberts, Darby Kolter & Roberts
  • Joe Strain, Marsicovetere & Levine Law Group
  • Jonathan Teller-Elsberg, Staff Attorney, New Hampshire Legal Assistance
  • The Honorable John Valente, Vermont Superior Judge
  • Jason Warfield, J.D.
  • Thomas Wilkinson, Jr., Cozen O’Connor

ANSWERS

Questions 1 & 2

Earlier this week, I presented at the State’s Attorneys annual training.  I mentioned the rule that governs a lawyer’s remarks during a trial.  Later today, I’ll go over the rule again when I present at the Defender General’s annual training.  While each group practices criminal law, the rule applies to all trials, whether criminal or civil.  Questions 1 and 2 are about the rules.

Question 1.

Fill-in-the-blank.

“In trial, a lawyer shall not allude to any matter that the lawyer does not reasonably believe is relevant or that will be supported by _________      _____________.”

ADMISSIBLE EVIDENCE.  V.R.Pr.C. 3.4(e).

Question 2

The same rule states that, in trial, a lawyer shall not “state a personal opinion as to” four things. 

One point for each that you can identify.

It’s V.R.Pr.C. 3.4(e) and the four are:

  • The justness of the cause.
  • The credibility of a witness.
  • The culpability of a civil litigant.
  • The guilt of innocence of an accused.

Question 3

With the state prosecutors and public defenders in mind, here’s a question on conflicts.

When it comes to conflicts of interest, the rules on imputed conflicts are the same when a lawyer moves to & from government practice as they are when the lawyer moves from one private firm to another.

  • A.  True.
  • B.   False.

When a lawyer move from private firm to private firm, imputation is governed by V.R.Pr.C. 1.10.  If a lawyer participated personally & substantially in a matter while at the old firm, and if the new firm is on the opposite side of the same matter, the new firm is disqualified upon lawyer’s job switch. We do not allow screening in that situation. By contrast, the disqualification of government lawyers is governed by V.R.Pr.C. 1.11, which allows screening when a lawyer moves to or from government practice.

Question 4

Having worked in the same county for years, Deputy State’s Attorney and Public Defender discuss opening a private law firm together.  The plan would be to focus on representing parents who are involved in juvenile (CHINS) proceedings.  The plan would include partnering with a licensed family therapist who would provide services to the firm’s clients.  DSA, PD, and the licensed family therapist would each take a 1/3 ownership interest in the firm.

If DSA and PD contact me to ask whether the Vermont Rules of Professional Conduct allow for such an arrangement, it’s most likely that my answer will be:

  • A.  Yes.
  • B.  No.  V.R.Pr.C. 5.4(d).
  • C.  The rules do not address this issue.
  • D.  The rules do not address this issue, but since you’re both state employees, you should check the State Ethics Code that the legislature passed last year.

Question 5

I don’t think I’ll have to suggest to the public defenders that they not do this in court.

In My Cousin Vinny, what did Vinny do during the prosecution’s opening statement that, arguably, violated the duties of competence & diligence that he owed to his clients, as well as the duty to refrain from undignified and discourteous conduct that was degrading to Judge Haller’s court?

ANSWER:  Many people are going to be upset with me. However, the question asked what Vinny did “during the prosecution’s opening statement.”  The answer is that he FELL ASLEEP.  It was during his own opening statement, not the prosecution’s, that Vinny did this.

Bonus:  Also in My Cousin Vinny, what was Mona Lisa Vito’s first response when the prosecutor attempted to discredit her as an expert witness by asking: “can you tell me, what would the correct ignition timing be on a 1955 Bel Air Chevrolet with a 327 cubic inch engine and a four-barrel carburetor?”

Despite Ms. Vito’s choice of language, Judge Haller didn’t seem offended or to consider it discourteous or degrading.

Mona Lisa Vito’s first response was “it’s a [bs] question.” It was only later that she called it a “trick question.”  The voir dire begins at the 55 second mark of this clip, with the answer at 1:14.

Tuesday Morning Honors #277

Michael 1 Comment

Happy Tuesday!

Friday’s questions are here.  The answers appear after the Honor Roll.  

Following up on the intro to the quiz, I have a confession: I watched Succession in real-time. The writers crushed it! I predict it will go down as one of the greatest series finales in television history.

Side note: I had no idea so many of you were Succession fans!  Further, I think every single person who submitted answers this week got Question 5 correct.  So, here’s a gift from me to start the work week:

Enjoy the sunshine!

PS: thank you to the Honor Roll member who reminded me that I didn’t need to worry about posting on a federal holiday.

Honor Roll

  • Karen Allen, Karen Allen Law
  • Matthew Anderson, Pratt Vreeland Kennelly Martin & White
  • Alberto Bernabe, Professor, UIC School of Law
  • Penny Benelli, Dakin & Benelli
  • Andrew Delaney, Martin Delaney & Ricci Law Group
  • Heather Devine, Tarrant Gillies Shems
  • Benjamin Gould, Paul Frank + Collins
  • Robert Grundstein
  • Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
  • Douglas Keehn, Assistant Attorney General, Medicaid Fraud & Residential Abuse Unit
  • Deborah Kirchwey, Esq.
  • Elizabeth Kruska, Past-President, Vermont Bar Association
  • John Leddy, McNeil Leddy & Sheahan
  • Kevin Lumpkin, Sheehey Furlong & Behm
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Herb Ogden, Esq.
  • Jacob B. Perkinson, Esq.
  • Lisa Penpraze, Assistant United States Trustee, Department of Justice
  • Keith Roberts, Darby Kolter & Roberts
  • Jim Runcie, Ouimette & Runcie
  • Brice Simon, Breton & Simon
  • Jonathan Teller-Elsberg, Staff Attorney, New Hampshire Legal Assistance
  • The Honorable John Valente, Vermont Superior Judge
  • Brendan Walsh, Quantum Leap Capital

ANSWERS

Question 1

I took this picture years ago in South Hero. At CLEs, I use it as a visual when discussing one of the 7 Cs of Legal Ethics.  Which one?

Conflicts.  To me, the sign provides two potential directions. I like to imagine one arrow as the direction that competent & diligent representation would point the lawyer on the client’s behalf.  If anything else pulls the lawyer in the other direction – whether duties to another client, a former client, a third person, or a personal interest – then the lawyer might have a conflict.

Question 2

Math.

There is a rule that requires lawyers to keep records of trust account funds for X years.

There’s another rule that suggests that lawyers should provide Y hours of pro bono services per year.

What is X + Y?

Question 3

A comment to one of the rules indicates that the rule “contributes to the proper functioning of the legal system” by doing three things.  The first two are protecting “against possible overreaching by other lawyers in the matter” and preventing “interference by those lawyers with the attorney-client relationship.”  What does the rule prohibit?

  • A.   Knowingly making a false statement of fact or law to a third person.
  • B.   Communicating with a represented person on the subject of the representation.  V.R.Pr.C. 4.2, Cmt. [1].
  • C.   Knowingly making a frivolous discovery request.
  • D.   Ex parte communications with a court.

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.  representing a family member.
  • C.  withdrawing from representing a client so as to start a romantic relationship with the client.
  • D.  accepting an ownership interest in a client’s business as payment for legal fees. (I thought I’d blogged about this before. Apparently, I haven’t.  I’ll do so soon.)

Question 5

Earlier this year, Attorney General Merrick Garland testified before the United States Senate on the Justice Department’s long-running investigation of Ticketmaster.  The questions included questions about ticket sales for a famous singer’s current tour.

As it turns out, the AG is a huge fan of the singer and listens to the songs on the singer’s most recent album in the order suggested by his daughter. In an interview with The Wall Street Journal, the AG’s chief speech writer confirmed that the AG often drops references to the singer in public comments.  Indeed, according to Above The Law, when asked if he had managed to secure tickets for the current tour, Attorney General Garland replied, “That is a delicate question.”

Name the singer.

As reported by the Wall Street Journal and Above the Law, Attorney General Garland is a Swiftie

Monday Morning Answers #274

Michael

Happy Monday!

Friday’s questions are here. The answers follow today’s Honor Roll. Special welcome to first-time honorees Mary Kehoe, Andy Montroll, Chris Perkett, Doug Brines, and Moz St. Pierre!  Team Tequilla M.O.B.-ckingbird showing out!!

Honor Roll

Answers

Question 1

I use a variation of this question in my wellness seminars. 

Fill in the blank:

There’s a rule that requires lawyers to “act with ________ diligence and promptness in representing a client.”

REASONABLE.  V.R.Pr.C. 1.3 does not require lawyers to be available 24/7/365.  Yes, there are times when a lawyer must be available. However, there is nothing wrong with setting reasonable boundaries with clients and opposing counsel.

Question 2

This came up twice in inquiries this week.  The same word properly fills in each blank.  What’s the word?

Lawyer called me with an inquiry. I listened, then responded, “Under the rule, you represent the ________, not any individual members or employees.”  Then, I read to the lawyer the following language that appears in a comment to the rule:

“Care must be taken to assure that the individual understands that, when there is adversity of interest, the lawyer for the ________ cannot provide legal representation to the individual, and that discussions between the lawyer for the ________ and the individual might not be privileged.”

Question 3

At last month’s Mid-Year Meeting of the Vermont Bar Association, an overflow crowd at the plenary session participated in a discussion of a problem that is facing the bar and shared ideas as how best to address it.  It’s a problem that’s not unique to Vermont’s legal profession. Indeed, around the country, disciplinary prosecutors have started to use the following rules to address the problem:

  • The rule that prohibits undignified or discourteous conduct that is degrading or disruptive to a tribunal.
  • The rule that prohibits a lawyer from taking action that has no substantial purpose other than to delay, burden, or embarrass a third person.
  • The rule that prohibits conduct that is prejudicial to the administration of justice.

What’s the general issue that was discussed at the VBA meeting and that disciplinary prosecutors use these rules to address?

CIVILITY.  See, Does Vermont’s legal profession have a civility and professionalism problem? If so, what should we do about it?

Question 4

If you watch Succession, you might have noticed this in a recent episode. Legal ethics in action!

There’s a rule that includes the following statement in a comment: “Not all persons who communicate information to a lawyer are entitled to protection under this rule.”  The comment goes on to specify that a particular type of person is not entitled the rule’s protection. What type? 

A person who:

  • A.  fails to comply with the terms of a fee agreement.
  • B.  fails to assist the lawyer in responding to discovery requests.
  • C.  posts a negative online review about the lawyer.
  • D.  consults with or provides information to a lawyer with the intent to disqualify the lawyer from representing someone else whose interests are materially adverse to their own. See V.R.Pr.C. 1.18. Not cool Tom!

Question 5

Late last month, a civil trial involving a major Hollywood celebrity’s skiing accident made headlines.  Among other things, there were multiple stories about how one of the lawyers on the celebrity’s defense team apologized for how the lawyer treated a witness for the plaintiff.  Specifically, the lawyer apologized for being an “ass” during a cross-examination and stated that his conduct is “why people don’t like lawyers.”

On March 30, a jury returned a verdict in favor of the celebrity defendant and awarded the celebrity defendant $1 on a counterclaim.

Name the celebrity defendant.

Gwyneth Paltrow

Monday Morning Honors #258

Michael

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 Gregoire, JD Candidate, Syracuse Law; Summer 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 withdraw.  For 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

Michael

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!

Michael

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 Roberts, Darby 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

Michael

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 Killoran, Professor, Vermont Law School
  • Elizabeth Kruska, Immediate Past-President, Vermont Bar Association Board of Managers
  • Cassandra Larae-Perez, Gravel & Shea 
  • John Leddy, McNeil, 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

Michael 1 Comment

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