Monday Morning Honors #258

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

Honor Roll

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

 Answers

Question 1

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

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

Question 2

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

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

What did Attorney call to discuss?  Filing ______

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

Question 3

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

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

Question 4

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

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

 Question 5

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

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

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

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

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

The Fugitive & F. Lee Bailey

Monday Morning Honors #255

Happy Memorial Day!

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

Honor Roll

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?

This Rule 1.9 – Duties to Former Clients.  It addresses both Conflicts and Confidences.

 Question 2

 There is a rule that prohibits lawyers from charging or collecting an unreasonable fee.  Which is most accurate? The rule ___________________:

  • A.  also prohibits a lawyer from agreeing to an unreasonable fee. Rule 1.5 – Fees
  • B. includes an exception that allows a lawyer to charge a fee that is otherwise unreasonable if the client agrees.
  • C. includes an exception that allows a lawyer to charge a fee that is otherwise unreasonable if the client agrees, if the client was afforded a reasonable amount of time to seek independent legal advice about the fee before agreeing to it.
  • D. includes an exception that allows a lawyer to charge a fee that is otherwise unreasonable if the client agrees, if the fee agreement is confirmed in a writing that is signed by the client.

 

Question 3

By rule, a “prospective client” is one who, in good faith, discussed with a lawyer the possibility of retaining the lawyer but, for whatever reason, did not retain the lawyer.  Which is most accurate?

Per the rule, the lawyer shall not represent a client:

  •  A.  with interests materially adverse to the prospective client.
  •  B.  with interests materially adverse to the prospective client in the same or a substantially related matter.
  • C.  with interests materially adverse to the prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to the prospective client. Rule 1.18 – Duties to Prospective Client
  • D  None of the above.  This is a trick question.  Vermont has not adopted the ABA Model Rule that applies to “prospective clients.”

 Question 4

 Lawyer called me with an inquiry. I listened, then replied “one of the exceptions to the general prohibition against disclosure applies.  However, you should limit your response to disclosing only the information that is reasonably necessary to establish a defense or to respond to the allegations.”

Given my response, it’s most likely that the allegations have been made against __________:

  • A.  A current client of Lawyer.
  • B.  A former client of Lawyer.
  • C.  A or B.
  • D.  Lawyer. Here, I was referring to Rule 1.6 – Confidentiality of Information.  Paragraph(c)(3) includes the so-called “self-defense” exception.  Last week, I referenced the rule & exception in this post about the Illinois judge who ordered Drew Peterson’s former lawyer not to disclose information relating to the disappearance of Peterson’s missing wife.

Question 5

Yesterday, testimony finally ended in a defamation trial that has lasted 6 weeks and garnered significant media attention. The trial included disturbing and troubling evidence of physical and emotional abuse. It also included something that is quite rare in trials: while examining a witness, a lawyer objected to his own question.

Name either of the parties to the defamation case.

The parties are Johnny Depp and Amber Heard.  Here’s the moment when the lawyer objected to his own question.  To be fair, media ran with this.  As LegalEagle explains here, the lawyer was more trying to strike the answer more than to object to his own question.

Heard and Depp

Monday Morning Honors #254

Happy Monday!

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

ps: heeding superstition Friday’s intro worked.  I ran a marathon in Maine yesterday and qualified for the 2023 Boston Marathon.

IMG_6868

Honor Roll

Answers

Question 1

 I often mention the 7 Cs of Legal Ethics. In my opinion, conceptualizing the 7 Cs is easier than trying to memorize the specific rules and as likely to lead to the most important C, compliance.

Which of the 7 Cs includes the following?

  • Situations in which an act that is otherwise prohibited is mandatory.
  • Situations in which an act this is otherwise prohibited is permissive.
  • Among the situations in which an act is permissive, the so-called “self-defense” exception.

Confidentiality.  Paragraph (a) sets out the prohibition against disclosing information relating to the representation of a client.  Paragraphs (b) and (c) outline the exceptions.   Rule 1.6 – Confidentiality of Information

Question 2

 There’s a rule that includes the following language:

  • “A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client . . .”

True or false?   The only exception to the rule is when entering into a fee agreement with the client.

FALSE.  V.R.Pr.C. 1.8(a) sets out the requirements that must be met for a lawyer to enter into a business transaction with a client. It is not limited to fee agreements.  See, Rule 1.8 – Conflict of Interest – Current Clients – Specific Rules

Question 3

 At a CLE, I said “the rule states that a ‘lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.’ ”  I was discussing the rule that applies when:

  • A.  a client files a motion to discharge their lawyer.
  • B.  a client’s capacity to make adequately considered decisions in connection with the representation is diminished.  Rule 1.14 – Client with Diminished Capacity
  • C.  a client fails to substantially comply with the terms of a fee agreement.
  • D.  a lawyer learns that the client has used the lawyer’s services to commit a crime or fraud that is not likely to cause significant bodily or financial injury to another.

Question 4

 In honor of Pam L:

Most of the Rules of Professional Conduct apply to all lawyers.  There’s one, however, that applies only to a lawyer in a specific practice area. The rule includes a requirement that is similar to the constitutional mandate announced by the United States Supreme Court in Brady v. Maryland.  The rule applies to:

  • A.  a lawyer who represents a criminal defendant who has not attained the age of majority.
  • B.  a prosecutor in a criminal case.  Rule 3.8 – Special Responsibilities of a Prosecutor
  • C.  a lawyer who is admitted to practice in a U.S. state and a foreign country.
  • D.  a lawyer who represents a publicly held corporation whose primary purpose is to engage in interstate commerce.

Question 5

 Larry Zerner is an entertainment lawyer in Los Angeles.  He uses Twitter to update movie fans on a long-running copyright dispute.  The dispute is between the producer and screenwriter of a movie that was released in 1980.  Since then, Paramount has released 11 more films in the franchise.

Zerner’s interest in the dispute stems from more than working as a lawyer.  In 1982, Zerner appeared in one of the sequels.  In cabins at Crystal Lake, Zerner’s character and the character’s friends were attacked by the franchise’s main character. Zerner’s character’s death allowed the main character to acquire an item that Zerner’s character had used to scare his friends in a prank.  The item has since become iconic in movie lore and pop culture.

Last fall, an appeals court upheld a trial court’s decision to award the screenwriter a copyright for the original script and the characters associated with the original film.  That hasn’t ended the dispute.  The producer contends that the copyright does not include content from the sequels, including the adult version of the franchise’s main character and the iconic item that the main character acquired after dispatching the character played by Attorney Zerner.

Name the movie franchise.                         FRIDAY THE 13th

Bonus: name the iconic item.                     Jason’s hockey mask

CNN has the story of the legal battle here.

 

Monday Morning Honors #253

Happy Monday!  And happy it is (for me) with the week’s forecast!

Many thanks to all who participated in last week’s Well-Being Week in Law. On Wednesday I’ll post a recap that includes a list of those who got involved.  Remember:  there’s no need to limit well-being to a single week in May!  Let’s make it a habit in Vermont’s legal community!

Friday’s questions are here.  The answers follow today’s Honor Roll.  Suffice to say that my Kentucky Derby picks turned out to be undeserving of honor.

First Nine Week Highest Honors and Honor Roll for NCES | Elementary

ANSWERS

Question 1

 At CLEs and in response to ethics inquiries, I often state “it’s broader than the privilege.”  When I do, which of the 7 Cs of Legal Ethics am I referring to?  The duty of _____________.

CONFIDENTIALITY.  Rule 1.6 – Confidentiality of Information, Cmt. [3]

Question 2

Which appears in a different rule than the others?

  • A.  explain a matter to the extent reasonably necessary for the client to make informed decisions about the representation.
  • B.  is likely to be a necessary witness.
  • C,  unless the testimony relates to an uncontested issue or to the nature and value of legal services rendered in the case.
  • D.  unless disqualification of the lawyer would work substantial hardship on the client.

Option A is language from Rule 1.4 and is an aspect of a lawyer’s obligation to communicate with clients. Tip: in my opinion, clients can’t make reasonably informed decisions about the representation absent reasonable expectations about the representation and unless their lawyer provides them with candid legal advice.

 Options B, C, D appear in Rule 3.7 – Lawyer as Witness

 Question 3

 When using the following phrases at a CLE, what am I discussing?

  • prohibited when representing the defendant in a criminal case.
  • prohibited in exchange for securing a divorce;
  • prohibited if based on the amount of spousal maintenance, spousal support, or property settlement in lieu thereof.
  • allowed in post-judgment divorce actions that involve collecting past due spousal maintenance.

A contingent fee. See, Rule 1.5 – Fees

Question 4

In which of the situations below are the rules governing conflicts of interest stricter than the others?  When a lawyer:

  • A.  in private practice represents clients at a pro bono clinic sponsored by a court or non-profit.
  • B.  moves from private practice to government work.
  • C.  moves from government work to private practice.
  • D. transfers from one private firm to another private firm.

In A, B, and C, Vermont’s rules allow for screening even if the affected lawyer participated personally and substantially in a matter at a prior job.  That is NOT the case when a lawyer moves from one private firm to another.  If the lawyer’s new firm represents a client whose interests are materially adverse to those of a client represented by the lawyer’s old firm in the same matter, the new firm is disqualified if the lawyer participated personally and substantially in the matter while at the old firm.  See, Rule 1.10 – Imputation of Conflicts of Interest – General Rule and this blog post.

 Question 5

 I’m not positive how widespread the news is, but some of you might have learned that a draft Supreme Court opinion was leaked this week.  Discussing it during our bread debrief, the First Brother and I agreed that we were less surprised by the leak than we were that it hadn’t happened before.  Well, as it turns out, there has been at least one other instance in which a well-known Supreme Court opinion was leaked to the press prior to being released. Indeed, it involved not one, but two leaks.

First, shortly after the arguments, the Washington Post ran a story about the Court’s internal deliberations on the case. The story included a leaked memo that one justice had written to the others.  Seven months later, and a few hours before the Court announced its opinion, Time Magazine published the opinion and the details of the vote. The incident resulted in the then Chief Justice imposing a so-called “20 second rule,” a rule that a law clerk caught communicating with the media would be fired within 20 seconds.

What was the name of the case in which the opinion was leaked?

Bonus: who was the Chief Justice who imposed the 20-second rule?

The case is Roe v. Wade.  At the time, Warren Burger was the Chief Justice.  Among others, NPR and the Washington Post have coverage.

 

Monday Morning Honors #252

Happy Monday!

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

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

Honor Roll

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

ANSWERS

Question 1

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

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

Question 2

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

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

Question 3

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

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

Question 4

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

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

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

Question 5

The Thaw is on my mind.

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

Englih Lawyer

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

Rake

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

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

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

Monday Morning Honors #251

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

Honor Roll

  • Evan Barquist, Montroll Oettinger Barquist
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, University of Illinois at Chicago Law
  • Andrew Delaney, Martin Delaney & Ricci
  • Robert Grundstein
  • Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
  • Nicole Killoran, Professor, Vermont Law School
  • John T. Leddy, McNeil Leddy & Sheahan
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
  • Honorable John Valente, Vermont Superior Judge
  • Jason Warfield, J.D.

 ANSWERS

Question 1

Lawyer called me with an inquiry.  I listened, then responded: “Maybe.  Does it arise from your relationship with a current or former client? Or does it arise from a personal interest of yours?

In my response, what is “it?”

It is a conflict of interest.  My response to the inquiry refers to imputed conflicts.  See, Rule 1.10 – Imputation of Conflicts of Interest – General Rule.

Question 2

 By rule, a lawyer who has direct supervisory authority over a nonlawyer ___________:

  • A.  will be sanctioned if the nonlawyer does something that would violate the rules if done by the lawyer.
  • B.  is not professionally liable for the conduct of the nonlawyer.
  • C.  shall make reasonable efforts to ensure that the person’s conduct is compatible with the lawyer’s professional obligations.  Rule 5.3 – Responsibilites Regarding Nonlawyer Assistants.
  • D.  None of the above.  While there is a rule that applies to a lawyer’s supervision of other lawyers, there is no rule that applies to a lawyer’s supervision of nonlawyers.

Question 3

There’s a rule that prohibits a lawyer from making false or misleading communications about the lawyer or the lawyer’s services.

Does the rule prohibit truthful statements that are misleading?

Yes.  It’s rule Rule 7.1 – Communications Concerning a Lawyer’s Services It states that a “communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.”  Per Comment [2], “truthful statements that are misleading are also prohibited by this rule.”  The comment goes on to describe truthful statements that violate the rule.

Question 4

What do the Rules of Professional Conduct define as “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”

Informed Consent. Rule 1.0 – Terminology

Question 5

Season 6 of Better Call Saul debuts on Monday. I can’t wait. It’s one of my favorite shows of all-time and I am so looking forward to the final season.

For those who don’t know, the lead character, “Saul Goodman,” is an attorney who often finds himself on the wrong side of the Rules of Professional Conduct. In addition, in both Better Call Saul and Breaking Bad, Saul often mentions (complains of) his bad knees.

According to the show’s writers, Saul’s needs are so bad because of antics he engaged in well before changing his name to Saul Goodman.  Indeed, those antics resulted in a nickname associated with his real name.

What’s Saul Goodman’s real name?

And, bonus, what’s the antic-driven nickname that explains his bad knees?

James M. McGill.  Slippin’ Jimmy.

8u2S

Monday Morning Honors in Legal Ethics: #247

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

Many readers reported an interest in Theranos content.  Alas, not one mentioned Killing Eve!  Still, congratulations to the Honor Rollees!

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
  • Beth DeBernardi, Administrative Law Judge, Vermont Department of Labor
  • Corinne DeeringPACE Registered Paralegal®, Paul Frank + Collins
  • Andrew Delaney, Martin Delaney & Ricci
  • Cary Dube, Bergeron, Paradis, Fitzpatrick
  • Benjamin Gould, Paul Frank + Collins
  • Robert Grundstein
  • Glenn JarrettJarrett & Luitjens
  • Deb Kirchwey, Law Office of Deborah Kirchwey
  • Jim Knapp, Esq.
  • Elizabeth Kruska,Immediate Past-President, VBA Board of Bar Managers
  • John T. Leddy, McNeil Leddy Sheahan
  • Pam Loginsky, Deputy Prosecuting Attorney, Tacoma (WA)
  • Kevin Lumpkin,Sheehey Furlong & Behm
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
  • Herb Ogden, Esq.
  • Keith Roberts, Darby Kolter & Roberts
  • Jonathan Teller-Elsberg, Sheehey Furlong & Behm
  • Honorable John Valente, Vermont Superior Judge
  • Jason Warfield, J.D.
  • Thomas Wilkinson, Jr., Cozen O’Connor
  • Zachary York, Paralegal, Sheehey Furlong & Behm

 

ANSWERS

Question 1

 Does an e-mail qualify as a “writing” for the purposes of any of the Vermont Rules of Professional Conduct that require something to be in writing?

YES.  See, V.R.Pr.C. 1.0(n).

 Question 2

 Attorney represents Eve in Eve v. Villanelle.  Attorney called me with an inquiry about the matter.  After listening, I asked a question to which Attorney responded “yes.”  So, I replied “parties are always free to communicate with each other.  But there’s a rule that prohibits you from violating the rules through the act of another. So, take care not to script something for Eve to parrot to Villanelle.”

When Attorney responded “yes,” what question had I asked?

  • A.  Whether Eve is related to Villanelle.
  • B.  Whether Eve is Villanelle’s supervisor at work.
  • C.  Whether Villanelle is a former client of Attorney’s.
  • D.  Whether Villanelle is represented in the matter.

Question 3

 At a CLE, imagine I answer a question by saying:

  • “Whenever someone asks you to disclose information that’s in a current or former client’s file, absent the client’s informed consent to disclose the information, the most prudent course is to inform the person that you require a subpoena. Then, your duty is to raise all non-frivolous arguments against disclosure in a motion to quash. If the court enforces the subpoena and compels disclosure, the rule permits you to comply with the order, even over your client’s objection.”

Arguably, at least 3 of the 7 Cs of Legal Ethics are implicated in this scenario.  However, which of the “C” duties were we most likely discussing when the question was asked?

CONFIDENTIALITY.  See, my blog post Subpoena to Disclose Client Information?

 Question 4

 Lawyer and Client agree that Lawyer will represent Client for a “nonrefundable fee” of $X.  The agreement is confirmed in a writing that defines the scope of the services that Client will receive in exchange for the nonrefundable fee.  The agreement does not prospectively limit the Client’s ability to challenge the reasonableness of the non-fundable fee.  Both Lawyer and Client sign the agreement.

Client advances $X to Lawyer.  By rule, Lawyer

  • A.  must deposit the fee into an IOLTA and withdraw the fee as earned.
  • B.  must not deposit the fee into an IOLTA.  That would be commingling. See, V.R.Pr.C. 1.5(f) and 1.5(g). 
  • C.  must prepare a new fee agreement that does not use the phrase “nonrefundable fee.”
  • D.  C & self-report to disciplinary counsel.

See also, Trust Account Tuesday: Nonrefundable fees.

Question 5

 Yesterday, Hulu released the first three episodes of The Dropout. It’s based on the real-life story of a person whose sensational criminal trial concluded in January.  A jury found the person guilty of multiple charges related to defrauding investors of millions.  According to NPR, the verdict “capped the downfall of one of Silicon Valley’s most dynamic and scandal-plagued young executives who promised to revolutionize blood testing with an innovative technology that required just a small sample of blood pricked from a patient’s finger.”

The saga first garnered significant publicity following investigative journalist John Carreyrou’s 2015 release of Bad Blood: Secrets and Lies in a Silicon Valley Startup.  The attention included discussions of legal ethics and professional responsibility.  Indeed, according to a law review article that was published last year, the “story touches on multiple areas of professional responsibility, including competence, diligence, candor, conflicts, and liability . . . [and] serves as a helpful tool to explore the limits of ethical lawyering.”

Name the company at the center of the saga.  THERANOS

Bonus: name “the dropout” who was recently convicted of the criminal charges.  ELIZABETH HOLMES

Dropout

 

Monday Answers: #244

Happy February Eve!

From the responses to Friday’s post, I’m comfortable concluding that not many  readers will miss January.  Shout out to the firm that celebrated with Tropical Friday!

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
  • Amy Butler, Law Office of Amy Butler
  • Andrew Delaney, Martin Delaney & Ricci
  • Bob Grundstein
  • Glenn Jarrett, Jarrett & Luitjens
  • Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
  • John LeddyMcNeil, 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
  • Herb Ogden
  • Keith Roberts, Darby Kolter & Roberts
  • Jonathan Teller-Elsberg, Sheehey Furlong & Behm
  • The Honorable John Valente, Vermont Superior Judge
  • Thomas Wilkinson, Jr., Cozen & O’Connor
  • Jason Warfield, J.D.
  • Jack Welch, Esq.

answers

Question 1

Michael contacts Attorney for representation.  Michael’s matter is substantially related to a matter in which Attorney formerly represented Patrick.

By rule, which is most relevant to Attorney’s consideration of whether to represent Michael?

  • A.  whether Michael’s interests are materially adverse to Patrick’s.  See, V.R.Pr.C. 1.9(a).
  • B..whether Attorney remembers anything about Patrick’s matter.
  • C..whether Patrick’s matter concluded more than 7 years ago.
  • D..the nature of Michael’s matter: litigation or transactional.

 Question 2

 Here’s the first clause of V.R.Pr.C. 4.4(a):

“In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person . . .”

I’ve long argued that as the presence of one of the 7C of Legal Ethics wanes, the well-being of the profession deteriorates.  Which one?  That is, which of the 7Cs, when taken to the opposite extreme, crosses a line and violates the first clause in Rule 4.4(a)?

CIVILITY   (If scores mattered, I’d accept compassion, caring, courtesy . . . etc.)

A reader asked for a reminder.  The 7 Cs are:

  • 5 that are rules:  Competence, Communication, Confidentiality, Conflicts, Candor.
  • 2 others:  Commingling, Civility

Question 3

Math!

X = the number of annual pro bono hours suggested by the rule.

Y = the number of years that a rule requires lawyers to maintain trust account records following the termination of the representation.

What is X * Y?

  • A.  420
  • B.  360
  • C.  350
  • D.  300

 X = 50.  V.R.Pr.C. 6.1

Y = 6.  V.R.Pr.C. 1.15(a)(1).

Question 4

Lawyer called me with an inquiry.  My response included “It seems like there are grounds to do so.  But if you do, make sure to avoid noisy ______________.”

Given my answer, it’s most likely that Lawyer called to discuss:

  • A.  withdrawing from representing a client.  See; Stop Making Noise
  • B.  reporting opposing counsel to disciplinary counsel.
  • C.  a trust account scam
  • D.  throwing a Super Bowl party.

Question 5

Earlier this week I posted Espionage, Bribery, and Reinstatement to the Practice of Law. It refers to the story of a lawyer who, last month, sought reinstatement to the D.C. Bar.  The lawyer was disbarred in the 90s after being convicted of espionage.

In 1950, and in a criminal trial that captured the nation’s attention, a lawyer was charged with perjury. The charge was based on an allegation that the lawyer had lied to the House Committee on Un-American Activities by stating that he had not been a communist spy in the 1930s.  Because the statute of limitations had run, the lawyer was not charged with espionage

On one side of the trial, the government’s evidence included the so-called “Pumpkin Papers,” papers that an admitted former spy, who’d hidden them in a pumpkin for years, testified proved that he and the lawyer had committed espionage for the Soviets.

On the other, two sitting justices of the United States Supreme Court testified as character witnesses for the lawyer.

The lawyer was convicted.  As a result, the lawyer was disbarred in Massachusetts.  Then, in 1975, the Supreme Judicial Court of Massachusetts reinstated the lawyer, making him the first Massachusetts lawyer ever to be reinstated after having been disbarred.

Name the lawyer.  ALGER HISS

Bonus: name the member of the House Committee on Un-American Activities who, years later, was disbarred himself.   RICHARD NIXON

 The Alger Hiss trial fascinates me.  History has a good primer here.

Alger_Hiss_1950-1-e1579553354483

Monday Morning Honors #239

Happy Thanksgiving Week!

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
  • Amy Butler, Amy Butler Law
  • Alberto Bernabe, Professor of Law, University of Illinois Chicago
  • Andrew Delaney, Martin Delaney & Ricci
  • Heather Devine, Tarrant Gillies & Shems
  • Benjamin Gould, Paul Frank + Collins
  • Robert Grundstein
  • Merle Haskins, Assistant Judge
  • Deb Kirchwey, Law Office of Deborah Kirchwey
  • John Leddy, McNeil, Leddy & Sheahan
  • Pam Loginsky, Pierce County (WA) State’s Attorney’s Office
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeffrey Messina, Messina Law
  • Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
  • Herb Ogden, Esq.
  • Keith Roberts, Darby Kolter & Roberts
  • Brice Simon, Breton & Simon
  • Jonathan Teller-Elsberg, Sheehey Furlong & Behm
  • Jason Warfield, Esq.
  • Zachary York, Paralegal, Sheehey Furlong & Behm

Answers

Question 1

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

Earlier this week, I mentioned that the duty associated with this “C” can create a conflict between a lawyer’s obligations to the court and the client’s interests.   Which C?

To be clear: the answer is not “conflicts.”

CANDOR TO A TRIBUNAL.  See, V.R.Pr.C. 3.3

Question 2

Which phrase appears in a different rule than the others?

  • A.  the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client.
  • B.  the representation will result in a violation of the rules of professional conduct or other law.
  • C.  the lawyer’s physical or mental condition materially impairs lawyer’s ability to represent the client.
  • D.  the lawyer is discharged.

A is one of the factors to determine whether a conflict is waivable.  V.R.Pr.C. 1.7(b)(1).  B, C, and D are situations in which a lawyer is required to withdraw.  V.R.Pr.C. 1.16(a).

Question 3

My microphone wasn’t working well during a virtual CLE.  You’re not positive, but you think I used the phrases:

  • “contacted you in good faith;”
  • “the duty of confidentiality applies nonetheless;” and,
  • “the duty of loyalty is relaxed if you didn’t receive information that could be significantly harmful to that person”

As I cut in and out, I was discussing the rule that:

  • A. requires a lawyer to report another’s misconduct.
  • B applies to prospective clients, clients who meet with but do not retain a lawyer. R.Pr.C. 1.18.
  • C. applies when a lawyer provides short-term, limited legal services at a pro bono clinic.
  • D.  requires a lawyer to notify the sender that the lawyer received information that appears to have been inadvertently sent or produced.

Question 4

Fill in the blank.

By rule, “a lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses.”  V.R.Pr.C. 1.5(a).

Question 5

Lawyers should be competent speakers.

Until this morning, I’d never heard of Edward Everett.  According to the interwebs, he was considered one of the great orators of his time. Everett was not a lawyer.

Today marks the anniversary of an event at which Everett was the keynote speaker.  His marathon of a speech lasted two hours. After he finished, a lawyer gave a speech that, by comparison to Everett’s, was a relative sprint: it was 272 words and lasted only two minutes.

I don’t know how Everett was reviewed, but a Pennsylvania newspaper wasn’t impressed with the lawyer. In an editorial that described the lawyer’s speech as “silly remarks,” the paper expressed hope “that the veil of oblivion shall be dropped over them and they shall be no more repeated or thought of.”

In 2013, the paper issued a retraction, stating that the critical editorial was written “perhaps under the influence of partisanship, or of strong drink, as was common in the profession at the time.”

Name the lawyer and the speech.

Abraham Lincoln.  The Gettysburg Address.

Gettys-

 

Monday Morning Honors #237

Happy Monday.

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

Honor Roll

  • Karen Allen, Karen Allen Law
  • Matthew Anderson, Pratt Vreeland Kennelly Martin & White
  • Evan Barquist, Montroll Oettinger & Barquist
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor of Law, University of Illinois Chicago
  • Andrew Delaney, Martin Delaney & Ricci
  • Benjamin Gould, Paul Frank + Collins
  • Robert Grundstein
  • Glenn Jarrett, Jarrett & Luitjens
  • Deb Kirchwey, Law Office of Deborah Kirchwey
  • Jeanne Kennedy, JB Kennedy Associates, Mother of the Blogger
  • John Leddy, McNeil, Leddy & Sheahan
  • Pam Loginsky, Deputy Prosecutor, Pierce County (WA) Prosecutor’s Office
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeffrey Messina, Messina Law
  • Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
  • Keith Roberts, Darby Kolter & Roberts
  • Jonathan Teller-Elsberg, Sheehey Furlong & Behm
  • The Honorable John Valente, Vermont Superior Judge
  • Jason Warfield, Esq.
  • Jack Welch, Esq.
  • Thomas Wilkinson, Cozen O’Connor
  • Zachary York, Legal Assistant, Sheehey Furlong & Behm

 Answers

Question 1

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

With respect to one of the Cs, a comment indicates that the applicable rule “sets forth the special duties of lawyers as officers of the court to avoid conduct that undermines the integrity of the adjudicative process.”

Which C?

CANDOR TO A TRIBUNAL.  V.R.Pr.C. 3.3, Cmt. [2]

Question 2

Which involves a different rule than the others?

  • A.  don’t state or imply that you’re disinterested.
  • B.  the new matter is the same as or substantially related to the matter in which you represented the person.
  • C.  if the person misunderstands your role, correct the misunderstanding.
  • D.  if the person’s interests are likely to conflict with your client’s, don’t give the person any legal advice other than the advice to secure counsel.

 B is the correct answer because it is part of Rule 1.9(a)’s analysis of former client conflicts.  A, C, and D are part of Rule 4.3’s duties when dealing when an unrepresented person.

 Question 3

 There’s a rule that prohibits lawyers from making false or misleading statements about their services.

Can truthful statements that are misleading violate the rule?

  • A.  No.  Truth is an absolute defense, no matter how misleading it might be.
  • B.  Yes, if they omit a fact that is necessary to make the statement considered as a whole not materially misleading.

 V.R.Pr.C. 4.1.

Question 4

There’s a rule that includes an exception for an “insurance company . . . licensed to do business in the Vermont.”  This week, a lawyer emailed to ask me if I thought a particular company qualified as an “insurance company” and, therefore, that the exception applied.

The rule in question deals with:

  • A.  Safekeeping Property/Trust Accounting
  • B.  Conflicts of Interest
  • C.  Communicating with a represented person
  • D.  The Unauthorized Practice of Law

V.R.Pr.C. 1.15(f) prohibits lawyers from disbursing from trust without “collected funds.”  The exception in V.R.Pr.C. 1.15(g)(5) allows lawyers to disburse in reliance upon the deposit of a check issued by an insurance company that is licensed to do business in Vermont.

 Question 5

 In the intro I mentioned candy, intellectual property, and trademark infringement suits.

In late August, a California cookie company filed a trademark suit against a candy maker.  The lawsuit focuses on the shape of one the candy maker’s most famous products.  While most of us know the product as a tiny treat, the largest ever made weighed in at 30,540 pounds. Created in 2007, it was displayed in Pennsylvania to celebrate the candy maker’s 100th anniversary.

Name the candy maker and the product that is the subject of the trademark suit.

Hershey’s Kisses.   Lancaster Online and Lexology are among the outlets reporting the story.

Hershey Kiss