Monday Morning Honors

Monday Morning Honors #298

Michael Leave a comment

Happy Monday!

Friday’s questions are here.  Many thanks to all who sent stories of things we no longer collect!  I’ll share a list later this week. The answers follow today’s Honor Roll.

Honor Roll

  • Karen Allen, Karen Allen Law
  • Matt Anderson, Pratt Vreeland Kennelly Martin & White
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Law Professor, UIC Law
  • Kristen Connors, Montroll Oettinger & Blanquist
  • Andrew Delaney, Martin Delaney & Ricci Law Group
  • Robert Grundstein
  • Glenn Jarrett, Jarrett/Hoyt
  • The Honorable Pam Marsh, Probate Judge, Addison County
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeffrey Messina, Flynn Messina Law
  • Keith Roberts, Darby Kolter & Roberts
  • Jim Runcie, Olivette & Runcie
  • Joe Strain, Marsicovetere & Levine Law Group
  • Jonathan Teller-Elsberg, Staff Attorney, New Hampshire Legal Assistance
  • Jason Warfield, Jason Warfield Family Law & Mediation
  • Peter Young, General Counsel, Vermont Rail System
  • Brendan Walsh, Quantum Leap Capital
  • Thomas Wilkinson, Jr., Cozen O’Connor

ANSWERS

Question 1

A comment to a rule states that “information acquired in a prior representation may have been rendered obsolete by the passage of time, a circumstance that may be relevant in determining whether two matters are substantially related.”

Which two of the 7 Cs of Legal Ethics does the rule address?

Conflicts & Confidentiality, See, V.R.Pr.C. 1.7, Cmt. [3]

Question 2

The word “client” is not one of my 7 Cs of Legal Ethics.  I suppose it should be!

Anyhow, there are several rules whose titles reference specific types of clients.  Which is NOT a type of client specifically mentioned in the title to a rule?

  • A.           Current.
  • B.           Deceased.
  • C.           Former.
  • D.           Prospective.

The others are mentioned in, respectively, Rules 1.7, 1.9, and 1.18.

Question 3

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

“There are 3 exceptions.  One is if the testimony relates to an uncontested issue. Another is if the testimony relates to the nature and value of legal services rendered in the case.  The last is if disqualification will result in substantial hardship to the client.”

Given my response, Attorney contacted me because Attorney __________:

  • A.  reasonably believed that they had become a necessary witness.  See, V.R.Pr.C. 3.7
  • B.  mid-trial, learned that a former client would be the next witness to testify for the opposing party.
  • C.  had been subpoenaed to give evidence against a former client.
  • D.  All the above.  The rule mentions each scenario.

Question 4

Vermont has a rule that is not in the ABA Model Rules of Professional Conduct. Following the ABA’s lead, most jurisdictions have either decided not to adopt the rule or repealed it.  Jurisdictions that do not have the rule typically prosecute the conduct that the Vermont rule prohibits – basically, extortion – under a rule that prohibits a lawyer from engaging in conduct that is related to a crime.

Here is a comment to the Vermont rule.  Fill in the blanks. A different word goes in each.

It’s Rule 4.5 – Threatening Criminal Prosecution.  The question refers to Comment [1].

“The civil adjudicative process is primarily designed for the settlement of disputes between parties, while the criminal process is designed for the protection of society as a whole.”

Question 5

Like most jurisdictions, Vermont has a rule that prohibits a lawyer from having a sexual relationship with a client.  There is an exception for sexual relationships that pre-date the attorney-client relationship.

Last summer, in the second season of a popular show, a lawyer named Mickey danced around the rule.  After having a brief sexual relationship with Lisa – a chef & restaurant owner – Mickey represented Lisa when she was charged with murder.  After a jury found Lisa “not guilty,” Lisa “fired” Mickey so that they could resume their personal relationship.

From the Netflix show and the series of books on which it is based, we know that Mickey has no problem taking on tough cases but has one hard & fast rule related to client selection: he will never represent someone who has hurt a child.

Name the Netflix show in which Mickey is an attorney who has an unconventional “office.”

The Lincoln Lawyer

Monday Morning Honors #287

Michael 1 Comment

Happy Monday! 

Friday’s questions are here. The answers follow today’s Honor Roll.  Special welcome to first-time Honor Roll member Patrick Olmstead!

Honor Roll

Answers

Question 1

Which of my 7 Cs of Legal Ethics relates to trust accounting?

Hint: the word does not appear in the Rules of Professional Conduct. However, the offense is so significant that the Vermont Supreme Court has suggested that a public reprimand, as opposed to a private admonition, will be the presumptive response.

COMMINGLING.  The Supreme Court opinion I referenced is here.


Question 2

I’ve long urged lawyers to plan for their own unavailability. In a similar vein, I’ve asked law firms to craft disaster plans.  Arguably, the duty to prepare for unavailability & disaster is part of the duty:

  • A.  to keep a client reasonably updated on the status of a matter.
  • B.  to provide a client with conflict-free representation.
  • C.  to charge a reasonable fee.
  • D.  to act with reasonable diligence and promptness while representing a client.  See, V.R.Pr.C. 1.3, Cmt. 5, and the blog post A lawyer’s duty to plan for their own unavailability.

Question 3

Lawyer called me with an inquiry. I listened, then responded: “I don’t know. Are you saying that you’ve concluded that your continued representation of Client will result in a violation of the rules? If so, yes.”

Give my response, it’s most likely that Lawyer called to discuss:

  • A.   the crime-fraud exception to the attorney-client privilege.
  • B.   whether Lawyer must withdraw from representing Client.  See, V.R.Pr.C. 1.16(a)(1). Withdrawal is required “if the representation will result in violation of the rules of professional conduct or other law.”
  • C.   whether Lawyer must self-report to Disciplinary Counsel
  • D.   Lawyer’s duty of candor to the tribunal.

Question 4

There’s a rule that that prohibits a certain type of communication with judges and jurors.  What’s the two-word phrase used to describe the type of communication that’s off-limits?

Ex parte.  See, V.R.Pr.C. 3.5(b).

Question 5

There’s a pending lawsuit in the Southern District of Florida in which lawyers for a proposed class of plaintiffs allege that a famed restaurant chain duped customers about the size of its burgers and sandwiches. A few weeks ago, lawyers for the chain filed a motion for sanctions, arguing that the plaintiffs’ lawyers made a “baseless and unprecedented complaint that it is somehow unlawful for a restaurant to display a beautiful photograph of menu items.”

So far, the civil action has included:

  • Allegations that the chain uses pictures in advertisements and on its menu that show burgers that “overflow the bun” and deceptively make the burgers appear to be 35% bigger than they actually are;
  • the defendant arguing that its menu boards are “painstakingly constructed by professionals” who take well-lit pictures of menu items and that, “of course, the same sandwiches assembled speedily in a quick-service restaurant, wrapped, and transported, will not look the same;” and,
  • the judge already dismissing some of the plaintiffs’ claims, concluding that the defendant’s television and web ads did not promise a “size” that it failed to deliver.

Having grown up in the 80’s, I’m a huge fan of commercial jingles. Indeed, I still know the tune and every word that follows “hold the pickles, hold the lettuce” and it brought me great joy to belt out the jingle at the top of my lungs as I took a walk this morning.

Name the restaurant chain.

Burger King. 

Outlets that covered the story include Reuters and Above the Law.

Monday Morning Answers #283

Michael

Happy Monday! 

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

Special welcome to first-timers Amy Dollash and Jim Dingley!

HONOR ROLL

  • Alberto Bernabe, Professor, UIC School of Law
  • Amy Butler, Law Office of Amy Butler
  • Penny Benelli, Dakin & Benelli
  • Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labor
  • James M. Dingley, Esq.
  • Amy Dollash, Vermont Legal Aid, Mental Health Law Project
  • Benjamin Gould, Paul Frank + Collins
  • Robert Grundstein
  • Margo Howland, Esq.
  • Glenn Jarrett, Jarrett/Hoyt
  • Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
  • Douglas Keehn, Assistant Attorney General, Medicaid Fraud & Residential Abuse Unit
  • Patrick Kennedy, The First Brother
  • John Leddy, McNeil Leddy & Sheahan
  • Pam Loginsky, Deputy Prosecuting Attorney, Pierce County (WA)
  • Honorable Lon McClintock, Probate Judge, Bennington County
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeff Messina, Messina Law
  • Herb Ogden, Esq.
  • Keith Roberts, Darby Kolter & Roberts
  • Joseph Strain, Marsicovetere & Levine
  • Jonathan Teller-Elsberg, Staff Attorney, New Hampshire Legal Assistance
  • Tequila MOB-ckingbird (Evan Barquist, Doug Brines, Kristen Connors, Kylie Cordner, Moz St. Pierre)
  • Honorable John Valente, Vermont Superior Judge
  • Jason Warfield, JD

ANSWERS

Question 1

Which phrase appears in a different rule than the others?

  • A.            the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent.
  • B.            the representation will result in an unreasonable financial burden on the lawyer.
  • C.            the client insists on taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.
  • D.            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.

A, B, and C appear in V.R.Pr.C. 1.16(b).  Each is grounds for permissive withdrawal.  D appears in V.R.Pr.C. 1.7(b) and is a factor in determining whether a conflict can be waived.

Question 2

Person contacted Lawyer.   Person informed Lawyer “I’m getting divorced.  Attorney represents me. I’d like a second opinion on the advice I’ve received.”   Lawyer is not representing anyone else in the connection with the divorce, and has never represented Person, Person’s spouse, or anyone else who is involved with the divorce.

Which is most accurate?

  • A.            Because Person is represented by Attorney, Lawyer cannot provide a second opinion without Attorney’s consent.
  • B.            Lawyer may provide a second opinion without Attorney’s consent.

This blog post addresses all things to do with Rule 4.2, the rule that prohibits communication with a represented person.

Question 3

Fill-in-the blank.

Subject to two exceptions, there’s a rule that prohibits a lawyer from stating or implying that the lawyer “is certified as a SPECIALIST in a particular field of law.”  See V.R.Pr.C. 7.4

Question 4

Lawyer and Client agreed to a flat fee that Lawyer would treat as earned upon receipt.  They confirmed the agreement in a writing that described the scope of the services that Lawyer would provide and that was signed by Client.  Client advanced the fee. Before any work was done or legal services performed, Lawyer deposited the advance in Lawyer’s operating account, not the client trust account.  There is no question that the fee was reasonable.

Lawyer:

  • A.            Violated the Vermont Rules of Professional Conduct by entering an agreement that described a fee as “earned upon receipt.”
  • B.            Violated the Vermont Rules of Professional Conduct by depositing the advance into the operating account before any work was done or legal services performed.
  • C.            A & B.
  • D.            Did not violate the Vermont Rules of Professional Conduct.

This blog post addresses Vermont’s rule on fees that are paid in advance and that are labeled “earned upon receipt” or “non-refundable.”

Question 5

I’ve blogged often on civility.  This question should not be construed as retreating from my long-held stance that civility is not inconsistent with competence.

Lloyd Garrison was a real-life lawyer.  In 1956, Garrison represented Arthur Miller before the House Un-American Activities Committee.

Two years prior, Garrison represented another high-profile client in an administrative hearing in which the government sought to revoke the client’s security clearance.  Many people who were close to the client thought that Garrison “was too dignified in his approach to the hearing and not willing enough to go war with the [government].”  Indeed, the client’s wife “was dismayed by Garrison’s ultimately unsuccessful approach.”

You might recently have seen a fictionalized version of the hearing at which Garrison represented the client.

Name Garrison’s client.

J. Robert Oppenheimer

Monday Morning Honors #282

Michael

Welcome to Monday. And special welcome to first timers Asfar Basha & Jennifer Cleveland!

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

Honor Roll

  • Karen Allen, Karen Allen Law
  • Asfar Basha, J.D. 2023, Vermont Law & Graduate School
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, UIC School of Law
  • Jennifer Cleveland, Esq.
  • Beth DeBernardi, Administrative Law Judge, Department of Labor
  • Corinne Deering, RP Senior Paralegal, Paul Frank + Collins
  • Andrew Delaney, Martin Delaney & Ricci Law Group
  • Benjamin Gould, Paul Frank + Collins
  • Robert Grundstein
  • Glenn Jarrett, Jarrett/Hoyt
  • Douglas Keehn, Assistant Attorney General, Medicaid Fraud & Residential Abuse Unit
  • Mary Kehoe, Kehoe Law
  • Jeanne Kennedy, JB Kennedy Associates, Blogger’s Mom
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeffrey Messina, Messina Law
  • Herb Ogden, Esq.
  • Lisa Penpraze, Assistant United States Trustee
  • Keith Roberts, Darby Kolter & Roberts
  • Joseph Strain, Marsicovetere & Levine
  • Jonathan Teller-Elsberg, Staff Attorney, New Hampshire Legal Assistance
  • Jason Warfield, JD.
  • Thomas Wilkinson, Jr., Cozen O’Connor

ANSWERS

Question 1

I often describe one of the 7 Cs of Legal Ethics as meaning “know your job, do you job.”  Which one?

COMPETENCE.  There’s more on the 7 Cs of Legal Ethics in this video.

Question 2

Lawyer called me with an inquiry.  My response included the phrases “same or substantially related,” “materially adverse,” and “informed consent, confirmed in writing.”

Give my response, it’s most likely that Lawyer and I were discussing the rule on ____________:

  • A.  duties to former clients.  The phrases in the question are from Rule 1.9(a), the rule that addresses conflicts of interests between a former client and a current/prospective client.
  • B.  confidentiality.
  • C.  disbursing funds that are not yet “collected.”
  • D.  the duty to report another lawyer’s misconduct.

Question 3

By rule, a lawyer shall not “use methods of obtaining evidence that violate the legal rights” of a third person.  The same rule states that “in representing a client, a lawyer shall not use means that have no substantial person other than to _________________ a third person.”

  • A.  embarrass.
  • B.  delay.
  • C.  burden.
  • D.  All 3 – embarrass, delay, or burden.  See V.R.Pr.C. 4.4(a).

Question 4

By rule, “when a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall _____________.”

  • A.  withdraw or move to withdraw.
  • B.  request a competency evaluation.
  • C.  request appointment of a guardian.
  • D.  as far as reasonably possible, maintain a normal client-lawyer relationship with the client.  See V.R.Pr.C. 1.14(a).  Also, on Friday, the Supreme Court issued this opinion suspending a lawyer’s law license for one year following violations of duties owed to a client with a diminished capacity.

Question 5

Speaking of National Chocolate Chip Cookie Day, Ruth Graves Wakefield is credited with inventing the chocolate chip cookie.  In the 1930s, Ruth ran an inn in Whitman, Massachusetts.  Searching for an alternative to the butterscotch nut cookies that she served, Ruth mixed broken semi-sweet chocolate into her dough.  She expected the chocolate to melt during baking, but soon learned that it held its shape.  Voila, the chocolate chip cookie was born.

Ruth did not settle for calling her creation a “chocolate chip cookie.”  Rather, she named the cookie after her inn.

Ruth’s cookies became incredibly popular.  So popular that Nestle bought Ruth’s recipe. I don’t know if Ruth was represented in the deal.  If she was, the lawyer was either incompetent or failed to convince Ruth to hold out for a better offer.  Ruth sold the recipe and the cookie’s name for $1 and a lifetime supply of Nestle chocolate.

To this day, Ruth’s recipe and the name she chose for the cookie appear on Nestle’s packaging for semi-sweet chocolate chips.

What was the name of Ruth’s Inn?

The Toll House Inn

Monday Morning Honors #281

Michael

Happy Monday!

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

Honor Roll

ANSWERS

Question 1

There’s a rule that includes the so-called “self-defense” exception.  Which of the 7 Cs of Legal Ethics does the rule deal with?

CONFIDENTIALITY.  It’s Rule 1.6.  The “self-defense” exception is in paragraph (c)(4).

Question 2

Lawyer contacted me with an inquiry.  My response included these words & phrases:

  • I will not give you an opinion as to whether you do or do not have a duty to do so.
  • Know that another.
  • Substantial question.
  • Self-regulating profession must vigorously endeavor to prevent.
  • Requires exercise of judgment.
  • Exception for information relating to the representation of a client.

Given my use of these words & phrases, what did Lawyer contact me to discuss?

  • A.   Moving to withdraw from a representation.
  • B.   Whether to report another lawyer’s misconduct.  See, this blog post.
  • C.   Whether to correct a client’s false testimony.
  • D.   Whether to respond to a subpoena to produce information relating to the representation of a current or former client.

Question 3

The rule that prohibits communicating with a represented person on the subject of the representation includes a comment that addresses represented organizations.  According to the comment, “Consent of the organization’s lawyer ________ required for communication with a former constituent.”

  • A.  Is.
  • B.  Is sometimes.
  • C.  Is not.  V.R.Pr.C. 4.2, Cmt. 7.
  • D.  None of the above. The rule does not include a comment that addresses represented organizations.

Question 4

Several rules address conflicts of interest.  One includes a comment that indicates that “ __________  __________ requires that each affected client be aware of the relevant circumstances and of the material and reasonably foreseeable ways that the conflict could have adverse effects on the interests of each client.”

What two-word phrase accurately completes the quoted portion of the comment?

INFORMED CONSENT.  See, V.R.Pr.C. 1.7, Cmt. 17.

Question 5 (and TWO bonus questions!)

Three of the first five United States Presidents died on July 4: Jefferson, Adams, and Monroe.

Who is the only U.S. President who was born on July 4. 

(No hints. Everything about this blog is hint enough.)

Vermont’s own Calvin Coolidge was born on July 4, 1872.

Bonus: Presidents Jefferson & Adams died on the same day: July 4, 1826. A few weeks later, a lawyer who was born in New Hampshire commemorated their lives in a speech delivered at Faneuil Hall.  Then, in a short story that was published in 1936, a fictionalized version of the same lawyer exemplified the duty of competence by securing a jury verdict for a farmer who had refused to honor the terms of a contract.

Bonus 1: name the New Hampshire born lawyer whose speech commemorated Jefferson & Adams. 

DANIEL WEBSTER

Bonus 2: name the self-represented opposing litigant in the case in which the fictionalized version of the New Hampshire born lawyer defended a farmer against a breach of contract claim.

MR. SCRATCH (The Devil)

Monday Morning Honors #280

Michael

Happy Monday!

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

Honor Roll

  • Matthew Anderson, Pratt Vreeland Kennelly Martin & White
  • Penny Benelli, Dakin & Benelli
  • Merrill Bent, Woolmington Campbell Bent & Stasny
  • Alberto Bernabe, Professor, UIC School of Law
  • Andrew Delaney, Martin Delaney & Ricci Law Group
  • Cary Dube, Bergeron Paradis Fitzpatrick
  • Benjamin Gould, Paul Frank + Collins
  • Robert Grundstein
  • Margo Howland, Esq.
  • Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
  • Douglas Keehn, Assistant Attorney General, Medicaid Fraud & Residential Abuse Unit
  • Mary Kehoe, Esq.
  • Jeanne Kennedy, JB Kennedy Associates, Mother of the Blogger
  • Elizabeth Kruska, Esq.
  • John Leddy, McNeil Leddy & Sheahan
  • Kevin Lumpkin, Sheehey Furlong & Behm
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Herb Ogden, Esq.
  • Keith Roberts, Darby Kolter & Roberts
  • 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
  • Zachary York, Sheehey Furlong & Behm

ANSWERS

Question 1

This week’s picture question features Dwight Schrute from The Office.  Later today, I’m using the picture during a CLE.  Which of the 7Cs of Legal Ethics do you think I’ll be addressing when this slide is on the screen?

COMPETENCE

Question 2

If a lawyer in a private firm has a conflict, is the conflict imputed to all other lawyers in the firm?

  • A.  No. Vermont’s rule allows the firm to screen the lawyer, no matter the type of conflict.
  • B.  Yes. Vermont’s rule does not allow for screening in any situation.
  • C.  Yes, unless the conflict arises from a personal interest of the disqualified lawyer that does not create a significant risk of materially limiting the representation of the client by another lawyer in the firm. In this situation, Vermont’s rules allow screening.   V.R.Pr.C. 1.10(a).

Question 3

The duty of candor to a tribunal requires a lawyer to take “reasonable remedial measures” upon learning that a client or a witness called by the lawyer presented false evidence. A comment suggests that the first step is to:

  • A.  Consult with the client about correcting the falsehood.  V.R.Pr.C. 3.3(a)(3), Cmt. 10
  • B.  Move to withdraw.
  • C.  Disclose the falsehood to the tribunal.
  • D.  Ask the court to meet in camera, without opposing counsel present.

Question 4

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

“If it’s to gain an advantage, don’t do it, don’t threaten to do it, don’t participate in doing it.”

Do what?

Two acceptable answers: Present Criminal Charges. See V.R.Pr.C. 4.5. File a Disciplinary Complaint. See this blog post.

Question 5

Later today, I’m presenting a CLE for the Federal Bar Association. The topic is “Legal Ethics in Criminal Practice.”  The audience will consist of criminal defense lawyers and federal prosecutors. Which made me think of this question.

The first person ever to win 4 consecutive Emmy Awards won them for Outstanding Supporting Actor in a Comedy. The awards reflected the actor’s work playing an assistant district attorney on a show that aired from 1984-1992.  The actor also appeared in the 2023 sequel, this time as a public defender. In the sequel, the judge is the daughter of the judge from the original.  Sadly, to me, the original bailiff is not in the sequel.  Oooo-kay.

Name the show.

Bonus: Name the actor who won 4 Emmys in the original.

Night Court.  John Larroquette

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.

Monday Morning Honors #278

Michael

Happy Monday!

Friday’s questions are here.  Today, the answers follow the Honor Roll. This video provides a bit more explanation of each answer.

As for Friday’s introduction about the duty of competence in the self-checkout express line at the grocery store, I especially appreciated comments from two readers. 

The first:

“Would you believe that when I was in law school, I yelled at someone for using a credit card in the ‘Cash Only’ lane at [a grocery store] because he was slowing the rest of us down?  Simply reading and complying with the sign were too difficult for this guy or he was one of those ‘the rules don’t apply to me’ guys.  In either event, he needed to hear from me lest civilization go to ruin.”

As I indicated in the video, the fight to save civilization starts in the grocery stores!  Sidenote: that both this reader and I remember the days when payment by credit card slowed the line is, surely, a sign of our age.

The second:

“Enjoying the video format, and thank god you’re taking on this important crisis in public order. I might question, though, your claim that there are lots of other lines for people with the full carts. At least in the two Shaw’s stores I usually go to there are usually only one or two attended checkout lines, so even with the self-checkout as a kind of relief valve, people with full orders may wind up waiting what seems like a very long time.

Still, even if someone were to agree that the strict language of the rule is ambiguous, a standard principle of statutory construction is to follow the intent of the legislature. I agree with you that the legislative intent is to provide those self-checkout lines for people with small orders. This is particularly true when we look at other evidence of the legislative intent, such as the very small area provided for the shopper to place the scanned items.”

Fantastic argument as to statutory construction!

Onto the quiz!

Honor Roll

  • Karen Allen, Karen Allen Law
  • Merrill Bent, Woolmington, Campbell, Bent & Stasny
  • Andrew Delaney, Martin Delaney & Ricci Law Group
  • Benjamin Gould, Paul Frank + Collins
  • Robert Grundstein
  • Glenn Jarrett, Jarrett/Hoyt
  • Douglas Keehn, Assistant Attorney General, Medicaid Fraud & Residential Abuse Unit
  • Jeanne Kennedy, Blogger’s Mom, JB Kennedy Associates
  • Elizabeth Kruska, Past-President, Vermont Bar Association
  • John Leddy, McNeil Leddy & Sheahan
  • Kevin Lumpkin, Sheehey Furlong & Behm
  • Pam Loginsky, Deputy Prosecuting Attorney, Pierce County (WA)
  • Honorable Lon McClintock, Bennington County Probate Judge
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Herb Ogden, Esq.
  • Keith Roberts, Darby Kolter & Roberts
  • Joe Strain, Marsicovetere & Levine Law Group
  • Jonathan Teller-Elsberg, Staff Attorney, New Hampshire Legal Assistance
  • Jack Welch, Esq.
  • Zachary York, Sheehey Furlong & Behm

ANSWERS

Question 1

Last week’s picture round was a bit too difficult.  I think this week’s is easier. I use this picture to address which of the 7 Cs of Legal Ethics?

CONFIDENTIALITY. As I’ve often suggested, there’s no reason to be talking about client matters or unnecessarily disclosing information about clients and their matters.

Question 2

The rule that prohibits unreasonable fees includes an exception for “any fee agreed to by the client.”

  • A.  True.
  • B.  FALSE.
  • C.   The exception exists, but only applies to contingent fee agreements.
  • D.   True, but the exception only applies if the lawyer gives the client a reasonable amount of time to seek independent legal advice before agreeing to the fee.

Question 3

There’s a rule that prohibits lawyers from advising or assisting clients to violate the law.  A comment to Vermont’s rule provides an exception for lawyers who advise clients about Vermont’s regulatory scheme related to particular product/industry.

What product/industry?

CANNABIS/MARIJUANA  See, V.R.Pr.C. 1.2(d), Cmt. [15]

Question 4

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

“Actually, there’s an exception to the rule that allows you to do so in a post-judgment action to collect spousal maintenance. The exception is a great tool to increase access to legal services for those who can’t otherwise afford a lawyer.”

What does the exception allow Lawyer to do in a post-judgment action to collect spousal maintenance?

AGREE TO A CONTINGENT FEE  See, V.R.Pr.C. 1.5(d)(1)

Question 5

A South Carolina lawyer was disbarred in July 2022.  Earlier this year, the same lawyer was sentenced to life in prison, without the possibility of parole.  The former lawyer’s legal troubles continue.

Recently, lawyers representing the disbarred lawyer asked a federal court to vacate a “confession of judgment” in which the disbarred lawyer admitted to stealing $4.3 million in insurance proceeds that should have gone to the estate of the disbarred lawyer’s deceased housekeeper. The housekeeper died at the disbarred lawyer’s house, allegedly after falling down the stairs.

The attorney for the housekeeper’s estate filed a motion in opposition to the request to vacate the confession of judgment.  According to news reports, the attorney argued that the request to vacate was the legal equivalent of “may I have a mulligan?” and added that the disbarred lawyer and his legal team had:

  • “stumbled late on the judicial first tee with a small bucket of balls and with the apparent attempt to fire shots until they finally hit the fairway. Obviously, [disbarred lawyer] is not a golfer. Neither are his lawyers. There are no mulligans.”

The motion in opposition characterized the disbarred lawyer’s request to vacate as “like a spoiled child … overindulged and undisciplined.”

Name the disbarred lawyer.

ALEX MURDAUGH

Monday Morning Honors #276: Please disbar me from making Kentucky Derby picks.

Michael

Happy Monday!  

Friday’s questions are here.  The answers follow today’s Honor Roll.  Special welcome to first time Honor Roll member Doug Keehn!

Also, kudos to former VBA President Elizabeth Kruska.  As you might recall from this 2018 post, Liz and her husband Wesley Lawrence are horse racing aficionados.  On Friday, Liz texted me her Kentucky Derby picks: Mage, Angel of Empire, and Disarm.  They came in first, third, and fourth! 

Well done, Liz!

How’d my picks do?

Well, here’s a hint: Liz sent her picks in response to a text in which I informed her that my brother had commenced formal proceedings to disbar me from making Kentucky Derby picks.

In Friday’s introduction to the quiz, I picked Tapit Trice, Practical Move, and Forte.  Shortly after I made my picks, Practical Move scratched, as did Forte on Saturday morning. 

Yes! Two of the horses I picked didn’t even run the race!

Meanwhile, the third, Tapit Trice spent much of the race leisurely patrolling last place, before eventually finishing 7th, approximately 15 minutes behind the leaders.

My picks were blatant violations of the horse wagering equivalents of the duties of competence & diligence!

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
  • Benjamin Gould, Paul Frank + Collins
  • Robert Grundstein
  • Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
  • Douglas Keehn, Assistant Attorney General, Medicaid Fraud & Residential Abuse Unit
  • Jeanne Kennedy, JB Kennedy Associates, Mother of the Blogger
  • Patrick Kennedy, Amazon Web Services, The First Brother
  • Deborah Kirchwey, Esq.
  • Elizabeth Kruska, Past-President, Vermont Bar Association
  • John Leddy, McNeil Leddy & Sheahan
  • Pam Loginsky, Deputy Prosecuting Attorney, Pierce County (WA)
  • Kevin Lumpkin, Sheehey Furlong & Behm
  • Jeff Messina, Messina Law
  • Herb Ogden, Esq.
  • Christopher Perkett, OP Law
  • Joseph Strain, Marsicovetere & Levine
  • Jonathan Teller-Elsberg, Staff Attorney, New Hampshire Legal Assistance
  • Honorable John Valente, Vermont Superior Judge
  • Jason Warfield, JD
  • Brendan Walsh, Quantum Leap Capital

ANSWERS

Question 1

Which word, that’s one of the 7 Cs of legal ethics, properly fills in the blank in this comment to one of the rules?

“While normally it is impermissible to __________ the lawyer’s own funds with client funds, paragraph (b) provides that it is permissible when necessary to pay services charges or other fees on the account.”

Commingle.  See, V.R.Pr.C. 1.15, Cmt. [2].

Question 2

The word “client” is not one of my 7 Cs of Legal Ethics.  I suppose it should be!

Anyhow, there are several rules whose titles reference specific types of clients.  Which is NOT a type of client specifically mentioned in the title to a rule?

  • A.           Current.
  • B.           Deceased.
  • C.           Former.
  • D.           Prospective.

Rules 1.7, 1.9, and 1.18 set out the duties owed to current, former, and prospective clients.  There is no rule that addresses deceased clients.

Question 3

Lawyer contacted me with an inquiry.  Quoting the rule, my response began as follows:

“Under the rule, your first duty is to, ‘as far as reasonably possible, maintain a normal client-lawyer relationship with the client.’”

Given my response, Lawyer called to discuss a client ____________:

  • A.  who had filed a disciplinary complaint against the lawyer.
  • B.  whose capacity to make adequately considered decisions in connection with the representation is diminished.  See, V.R.Pr.C. 1.14.
  • C.  who provided false testimony to a tribunal.
  • D.  who the lawyer reasonably believed, without knowing for sure, intended to use the lawyer’s services to commit a crime or fraud.

Question 4

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

“There are 3 exceptions.  One is if the testimony relates to an uncontested issue. Another is if the testimony relates to the nature and value of legal services rendered in the case.  The last is if disqualification will result in substantial hardship to the client.”

Given my response, Attorney contacted me because Attorney __________:

  • A.  reasonably believed that they had become a necessary witness.  See, V.R.Pr.C. 3.7.
  • B.  mid-trial, learned that a former client would be the next witness to testify for the opposing party.
  • C.  had been subpoenaed to give evidence against a former client.
  • D.  All the above.  The rule mentions each scenario.

Question 5

A few months ago, news broke that a company’s former top in-house lawyer has cooperated with the federal prosecutors who are investigating the company’s much publicized collapse.  Apparently, the lawyer did not disclose the company’s criminal conduct before the company’s November collapse. See, V.R.Pr.C. 1.13.

Two weeks ago, Above The Law posted an article under the headline “Taylor Swift Is A Better Lawyer Than You.”  Swift reportedly turned down $100 million to endorse the company that is referenced in the first paragraph.  According to a lawyer who is representing plaintiffs who are suing the company, Swift rejected the company’s offer after asking “Can you tell me that these are not unregistered securities?” 

Competence indeed!

Name the company.

FTX.  The Above the Law post about Taylor Swift is here.