Monday Morning Honors #294

Happy Eclipse Day! 

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

Honor Roll

• Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labor
• Andy Delaney, Martin Delaney & Ricci
• Robert Grundstein
• Ryan Kane, Vermont Deputy Solicitor General, Office of the Attorney General
• Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
• Douglas Keehn, Assistant Attorney General, Medicaid Fraud & Residential Abuse Unit
• Patrick Kennedy, The First Brother
• Jordana Levine, Marsicovetere & Levine
• Jeffrey Messina, Flynn Messina
• Patrick Olmstead, Patrick Olmstead Law
• Keith Roberts, Darby Kolter & Roberts
• Stephanie Romeo, Ryan Smith & Carbine
• Jonathan Teller-Elsberg, Staff Attorney, New Hampshire Legal Assistance
• Jason Warfield, Jason Warfield Family Law & Mediation

ANSWERS

Question 1

Here’s a few sentences from one of the comments to a rule.  What of the 7 Cs of Legal Ethics does the rule address?

• “To determine whether a _______ exists, a lawyer should adopt reasonable procedures, appropriate for the size and type of firm and practice, to determine in both litigation and nonlitigation matters the persons and issues involved. Ignorance caused by a failure to institute such procedures will not excuse a lawyer’s violation of this rule.”

CONFLICT OF INTEREST.   V.R.Pr.C. 1.7, Cmt. [3]

Question 2

Some might consider it a distinction without a difference, but which is correct?  Vermont’s rule on fees:

• A.  prohibits a lawyer from charging an unreasonable fee.  See, V.R.Pr.C. 1.5.
• B.  requires a lawyer to charge a reasonable fee.

Question 3

Another C.   A comment to the rule that addresses this “C” acknowledge that compliance with the duty “can result in grave consequences to the client, including not only a sense of betrayal but also loss of the case and perhaps a prosecution for perjury.”  Still, compliance is required.

Which C?

CANDOR.   V.R.Pr.C. 3.3, Cmt. [11]

Question 4

Imagine this situation: Person meets with Lawyer to discuss forming a client-lawyer relationship. Person took the meeting in good faith. That is, Person did not take the meeting for no other purpose than to disqualify Lawyer from representing anyone else in the matter.  Nevertheless, following the consultation, Person decides not to retain Lawyer. Now, someone else wants to retain Lawyer in the same matter.

Which is most accurate?

• A.  Vermont has a rule that addresses this exact situation.  The rule sets out the duties a lawyer owes to a prospective client.
• B.  Vermont does not have a rule that addresses this exact situation.  Rather, Person will be deemed a “Current Client” and the situation analyzed under the rule that addresses “concurrent conflicts of interest.”
• C. Vermont does not have a rule that addresses this exact situation.  Rather, Person will be deemed a “Former Client” and the situation analyzed under the rule that addresses the duties owed to former clients.
• D.  Mike, I object to the premise of your question.  There is no world in which a client could possibly decide against retaining me after having met me.

I blogged about the rule 3 times last week. The posts are:

• Fish, fowl, and Vermont’s rule on a lawyer’s duties to prospective clients
• The nature & type of information received from a prospective client that might later disqualify a lawyer
• Get Smart: ABA provides guidance on reasonable measures to avoid acquiring disqualifying information from a prospective client

Question 5

It has been far too long since Question 5 involved My Cousin Vinny. So, with the intro having involved gambling, here we go!

My Cousin Vinny includes a famous scene in which Vinny explains offers, counteroffers, and negotiations.  The explanation is part of his attempt to collect bet that Mona Lisa Vito had won, but that the loser had not paid.

What had Mona Lisa Vito (successfully) bet on herself to win?

And because I set the rules here and am allowed blogger’s license, no credit for anyone who suggests that it was more of a hustle than a bet.

A game of pool.  The “collection” scene is here.

Monday Morning Answers #279

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.

Five for Friday #279

Welcome to Friday and the 279^th legal ethics quiz!

Happy Father’s Day weekend!

158 quizzes ago, I introduced readers to my dad.  He stopped running a year or two ago, but otherwise he’s still kicking, still super active, and, like his sons, still wondering why we put up with the Sox.

Here’s an excerpt from the original post about my dad:

Dad – on behalf of Patrick, we love you.  Happy Father’s Day!  We can’t wait to see you in D.C. in a few weeks for the Sox-Nationals games.  Until then, don’t waste your time looking in the mail for a gift or card.  The fact remains, you raised 2 Irish sons for whom planning ahead isn’t a strong suit.

That being said, on Father’s Day, Patrick & I are heading to Lebanon, NH. I’m going to run a race. It’s sponsored by an Irish bar, and Patrick & I fully intend to stop at the bar after the race.  When we do, we’ll order 3 pints: 1 for Patrick, 1 for me, and 1 for you.

We’ll each drink our own, then half of yours.

As I said, you raised two Irish sons!

Flash forward to today and, well, some things never change. 

Dad – don’t bother checking the mail. Instead, ask yourself this:

Is there a greater gift than being featured (twice now) in the introduction to the world’s most famous legal ethics quiz???

Patrick and I think not! Happy Father’s Day!

Onto the quiz!

Rules

• None.  Open book, open search engine, text-a-friend.
• Exception:  Question 5.  We try to play that one honest.
• Unless stated otherwise, the Vermont Rules of Professional Conduct apply.
• Please do not post answers as a “comment” to this post.
• E-mail answers to michael.kennedy@vermont.gov
• Team entries welcome, creative team names even more welcome.
• I’ll post the answers & Honor Roll on Monday,
• Please consider sharing the quiz with friends & colleagues.
• Share on social media.  Hashtag it – #fiveforfriday.

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 same rule 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 rule.

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 _________      _____________.”

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.

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.

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 of 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.
• 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?

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.

Monday Morning Honors #273

Happy Monday!

Friday’s questions are here. The answers follow today’s Honor Roll. Special honors to the UVM men’s and women’s basketball teams on winning their way into the NCAA tournament!

Go Cats Go!

Honor Roll

• Andrew Delaney, Martin Delaney & Ricci
• Rick Fadden, Barry Callebaut Group
• Benjamin Gould, Paul Frank + Collins
• Elizabeth Kruska, Past-President, Vermont Bar Association
• Pam Loginsky, Deputy Prosecuting Attorney, Pierce County (WA)
• Kevin Lumpkin, Sheehey Furlong & Behm
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Hal Miller, First American Title, Hawaii State Counsel
• Herb Ogden, Esq.
• Keith Roberts, Darby Kolter & Roberts
• Jonathan Teller-Elsberg, Staff Attorney, New Hampshire Legal Assistance
• Honorable John Valente, Vermont Superior Judge
• Jason Warfield, J.D.
• Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

At a CLE, I said “the rule uses the phrase ‘information relating to the representation.’”

Which of the 7 Cs of Legal Ethics was I discussing?

Confidentiality.  The phrase appears in V.R.Pr.C. 1.6, the rule that prohibits disclosure of “information relating to the representation of a client.”  Remember, “information relating to the representation of a client” is broad and encompasses more than information that is privileged.  See, Comment [3].

Question 2

Which situation does the applicable rule treat differently than the others?

• A. The representation has been rendered unreasonably difficult by the client.
• B.  The lawyer suffers from a health condition that materially impairs the lawyer’s ability to represent the client.
• C.  The client discharges the lawyer.
• D.  Continued representation by the lawyer will result in a violation of the Rules of Professional Conduct.

Each situation is reference in V.R.Pr.C. 1.16, the rule that governs withdrawal.  Scenario A permits withdrawal.  Scenarios B, C, and D require withdrawal.

Question 3

Three of the following phrases appear in the same comment to a particular rule. The comment explains the rule’s purpose.  One appears in a comment to a different rule, where it is also listed as one of that rule’s purposes.  Which one is associated with a different rule than the others?

This rule protects against _____________:

• A.  Uncounseled disclosure of information relating to the representation.
• B.  Overreaching by other lawyers who are participating in the matter.
• C.  Interference with the attorney-client relationship by other lawyers.
• D.  Subverting the truth-finding process that the adversary system is designed to implement.

Choice D is one of the purposes behind V.R.Pr.C. 3.3, which requires candor to a tribunal.  It appears in Comment [11], which addresses a lawyer’s duties upon learning of the falsity of material evidence  offered by the lawyer, the client, or a witness called by the lawyer. 

Choices A, B, and C are purposes behind V.R.Pr.C. 4.2’s prohibition on communicating with a represented person on the subject of the representation.

Question 4

Fill-in-the-blank.

These are the elements of the rule that governs ___________________.

• Whether the total fee is reasonable;
• Whether the client consents to the arrangement and the agreement is confirmed in writing;
• Whether the arrangement is in proportion to the services performed by each; and,
• If the arrangement is NOT in proportion to the services performed by each, whether each lawyer assumes joint responsibility for the representation.

SHARING FEES.  Or, to use the language that’s in V.R.Pr.C. 1.5(e), “a division of fees between lawyers who are not in the same firm.”

Question 5

In addition to being the anniversary of Bell’s call to Watson, today is National Middle Name Day.

Fiorello La Guardia was an attorney who served as the Mayor of New York City from 1934-1945.  An airport is named after him.  More importantly, a well-known fictional attorney’s middle name is “La Guardia.”

Many agree that the fictional attorney more than satisfied the duty of competence. Indeed, in an opinion he wrote while a federal judge, Attorney General Merrick Garland described the fictional attorney’s trial performance as “a master class in cross-examination.”

Name the uber-competent fictional attorney whose middle name is “La Guardia.”

Bonus: While admiring of the fictional attorney’s entire performance, Judge Garland’s opinion specifically lauded a particular cross-examination.  What was the subject of that cross-examination?

Vincent La Guardia Gambini.

Then Judge Garland’s opinion is here. It was issued in case that involved a question over how long employees had been sleeping while at work.  The cross-examination of a key witness drew comparison to Vinny’s cross-examination of the witness who was cooking grits while the shooting took place at the Sac-O-Suds.

Monday Morning Honors #260

Happy Monday! 

Thanks to all who wished the First Brother well!  He made it from Dunmore to Gettysburg, where he’ll spend this week camping near the battleground before continuing the trek to Savannah on Friday. 

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

Honor Roll

• Evan Barquist, Montroll Oettinger & Barquist
• Alberto Bernabe, Professor, UIC School of Law
• Amy Butler, Amy Butler Law
• Robert Grundstein
• Keith Kasper, McCormick, Fitzpatrick, Kasper and Burchard
• Jeanne Kennedy, JB Kennedy Associates, Mother (of the) Blogger
• Patrick Kennedy, Amazon Web Services, First Brother
• John T. Leddy, McNeil, Leddy, Sheehan
• Pam Loginsky, Deputy Prosecuting Attorney, Pierce County, Tacoma, WA
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Susan McManus, Office of the Public Defender, Bennington County
• Jeffrey Messina, Messina Law
• James Remsen, Master Planner, Parker Hannafin
• Keith Roberts, Darby Kolter & Roberts
• James Runcie, Ouimette & Runcie
• Nikki Stevens, Firm Administrator, Langrock Sperry & Wool
• Jonathan Teller-Elsberg, Sheehey Furlong & Behm
• Jason Warfield, J.D.
• Jack Welch, Esq.
• Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

Of the 7Cs of Legal Ethics, which specifically mentions “information related to the representation” in the rule that governs that C?

CONFIDENTIALITY.  V.R.Pr.C. 1.6(a) states that “a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation, or the disclosure is required by paragraph (b) or permitted by paragraph (c).

The phrase “information related to the representation” is important.  Remember, as Comment [3] makes clear, Rule 1.6 “applies not only to matters communicated in confidence by the client, but to all information relating to the representation, whatever the source.”

Question 2

Yesterday I blogged about an order in which a New York trial judge sanctioned lawyers for uncivil and obstructive conduct during a deposition. 

Let’s imagine a similar incident involving a deposition that’s taken in a Vermont matter.  One of Vermont’s Rules of Professional Conduct makes it a violation for a lawyer to “engage in undignified or discourteous conduct which is degrading or disruptive to a tribunal.” 

Does the rule apply at a deposition?

• A.           No.  A comment to the rule specifically leaves control of depositions to the trial courts.
• B.           No, but a comment to the rule cautions lawyers against conduct that would be prohibited in court.
• C.           Yes.  This is Rule 3.5(d).  As Comment [5] points out, the rule applies to “any proceeding of a tribunal.”  Rule 1.0(m) includes defines “tribunal” to include a deposition.

Question 3

Fill in the blank.  The same word goes in each blank.  What is it?

There’s a rule that sets out a lawyer’s duties when dealing with an __________ person.  The duties include not stating or implying that the lawyer is “disinterested,” and correcting any misunderstanding that the lawyer knows or reasonably should know that the __________ person has about the lawyer’s role.  A comment to the rule states that the “rule does not prohibit a lawyer from negotiating terms of a transaction or settling a dispute with the __________ person.”

Unrepresented.  This is V.R.Pr.C. 4.3.

Question 4

Lawyer called me with an inquiry.  I listened, then responded that “a comment to the rule, states that ‘matters are substantially related if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the new matter.’”

Lawyer didn’t contact me to discuss confidentiality.  Rather, given my response, Lawyer contacted me because Lawyer was concerned about, what?

A CONFLICT OF INTEREST between a client (or prospective client) and a former client.  V.R.Pr.C. 1.9 prohibits a lawyer from representing a client whose interests are materially adverse to the interests of a former client in a matter that is the same as or substantially related to the matter in which the lawyer represented the former client.

Question 5

When the First Brother arrives in Savannah, he’ll be just over 200 miles southeast of Monticello, GA.  A movie that the American Bar Association has ranked as one of the Top 3 of all-time was filmed in Monticello. 

While most fans associate the movie with a neighboring state and its mud, in fact, the convenience store and courthouse that feature so prominently in the film are in Georgia.  In 2019, then federal judge Merrick Garland wrote an opinion in which he made numerous references to the movie, including a statement that the lead character “taught a master class in cross-examination.”

Name the movie.

MY COUSIN VINNY.

The Sac-O-Suds and Jasper County Historic Courthouse are in Monticello, Georgia.

Five for Friday #250

Welcome to Friday, April, and the 250^th #fiveforfriday legal ethics quiz!

For those of you thinking that today’s introduction will mark the first mention of the quiz’s 250^th anniversary, not so fast my friends!  I’m exceedingly grateful to Chief Justice Reiber, Teri Corsones, and the esteemed Bob Fletcher for their thoughtful recognition of the milestone at last week’s VBA Mid-Year meeting.  Here’s a picture of the Yeti that the Chief Justice and President Fletcher presented to me after a brief interlude scripted by Teri that included an actual on-the-spot #fiveforfriday quiz:

Their thoughtfulness stands in contrast to my own and is relevant to today’s introduction.

As most know, the quiz is usually preceded by a musing that I try to connect to the date or to the quiz number.  Check out the picture.  Long ago, the Chief Justice and the VBA leadership figured out that quiz 250 might fall on the 25^th.   How fortuitous!! What better way to tie the intro to the date AND the quiz number?!?!

If only the blogger was as thoughtful and aware as others.

Instead, and for reasons that I can no longer remember, but that I assume can be summed up as “too lazy,” I didn’t post a quiz on March 11.  As such, 250 was pushed beyond the 25th.

Alas, all is not lost!

This is not a rhetorical question: who would miss such a golden opportunity to align a milestone quiz number with the date?  I mean, it was there for the taking!  It’s not like I would’ve had to sneakily skip/repeat a number or manipulate the calendar by taking multiple weeks off.

So, back to the question, who would be so oblivious???

A fool, that’s who.  Which makes it altogether appropriate that instead of delivering the 250^th on the 25^th,  I’m posting it on April 1.

Happy April Fool’s Day!

Seriously, blogs don’t work unless people read them.  So, to anyone who has read even a single quiz, thank you!

Moreover, as I’ve noted before, the Friday posts have allowed me to forge connections with many who I wouldn’t have otherwise. I appreciate each of you and value our connections more than you know.

Thank you for your support as I’ve pursued what I initially worried was but foolish idea that a weekly legal ethics quiz might stand a chance.

Onto the quiz!

Rules

•  Open book, open search engine, text-a-friend.
• Exception:  Question 5.  We try to play that one honest.
• Unless stated otherwise, the Vermont Rules of Professional Conduct apply
• Team entries welcome, creative team names even more welcome.
• E-mail answers to michael.kennedy@vermont.gov
• I’ll post the answers & Honor Roll on Monday
• Please consider sharing the quiz with friends & colleagues
• Share on social media.  Hashtag it – #fiveforfriday

Question 1

Attorney called me with an inquiry.  My response included this statement: “Unless the deposit was an instrument that is listed among the exceptions, the general rule is that you can’t unless you have collected funds.”

Can’t what?

Question 2

I often refer to the 7 Cs of Legal Ethics: competence, communication, confidentiality, conflicts, candor, commingling, and civility. I use them to urge lawyers to consider concepts instead of trying to memorize the rules.

Similarly, Professor Bernabe, a regular member of the #fiveforfriday Honor Roll, suggests to the students in his professional responsibility class that they associate the principles encapsulated by the Rules of Professional Conduct with the grades that they don’t want to receive for the class.

As we highlighted at last week’s VBA meeting, a comment to one of the rules states that “perhaps no professional shortcoming is more widely resented than procrastination.”  The comment does not appear in one of the “C” rules.  Rather, it’s in a rule that is one of Professor Bernabe’s “bad grades.”

Which rule/duty/principle is associated with procrastination and can be remembered by thinking of “bad grades?”

Question 3

I’m not a fan of threats to file disciplinary complaints against opposing counsel.  In fact, several jurisdictions take the position that it’s a rules violation to threaten another lawyer with a disciplinary complaint.

In most of those jurisdictions, which rule does the conduct violate? The rule that:

• A.  Requires fairness to opposing counsel and parties.
• B.  Requires respect for the rights of third persons.
• C.  Prohibits conflicts of interest.
• D.  Prohibits presenting, participating in presenting, or threatening to present criminal charges to obtain an advantage in a civil case.

Question 4

There’s a rule that prohibits a lawyer from counseling or assisting a client to engage in conduct that the lawyer knows is criminal or fraudulent.  Several years ago, Vermont added a comment to clarify that a lawyer may assist and advise clients on issues related to the validity, scope, and meaning of the statutes, rules, and regulations that apply to a specific product/industry.  The comment was added for several reasons, including the fact that the ethics rule draws no distinction between state and federal law.

What product/industry?

Question 5

 Consistent with a sentiment expressed in the introduction.

In My Cousin Vinny, Vinny’s opening statement was brief.  In fact, at 10 words, it might be the shortest opening statement in the history of opening statements. Here’s what followed:

• Prosecution: Objection, your Honor. Counsel’s entire opening statement is argument.
• Judge Haller: Objection sustained. The entire opening statement, with the exception of “ ________ ________” will be stricken from the record. The jury will please disregard Counselor’s entire opening statement. And you, Mr. Gambini, you will not use that kind of language in my court. Do you understand me?
• Vinny: Yeah, yeah, yeah.

Of the already brief opening statement, what are the only two words that were not stricken from the record?

Bonus:  what had Vinny done during the prosecution’s opening statement that isn’t exactly consistent with the duties that lawyers owe to their clients?

Monday Answers #245: the Sac-O-Suds!

Happy Monday morning!

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

Honor Roll

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

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

Five for Friday #245: Snow Days

Welcome to Friday and the 245^th legal ethics quiz.

Around Vermont, today is the day that school-aged me loved more than any other.  A day within the academic calendar that enjoys romanticized status.

The snow day.

I’m too old to remember what we did on snow days.  I tell myself that the First Brother and our friends grabbed our red plastic sleds (mine had yellow handles) and bravely trudged through the storm to our favorite sliding spots.  Yes, we call it “sliding.”

One such spot was Blueberry Hill.  At least that’s what the kids who lived in the neighborhoods off Williston Road called it.  I doubt that name appears on any official map or record.  In my memory, it was a treacherous hill that demanded great bravery.  There was a sharp right turn about halfway down.  Take it too wide and you’d slam into a tree, cut it too tight and you’d fall off a cliff into a ravine.  Even among those who properly navigated the corner, only the most courageous steered towards the jump that older kids built had into the run – a jump that, if taken, resulted in “legend” status the following day in the cafeteria.

If we could visit Blueberry Hill today, we’d probably laugh at how small – and not steep – it seems in comparison to the mountain of our memories.  Alas, there’s no longer any sliding there.  Like Joni Mitchell sang, they paved our wintry paradise and put up a condominium complex.  And while I’m suspect that the kids who live in our old neighborhoods have found a hill to conquer, I’m convinced that they’ll never know the best part of our experience: the way that we learned it was a snow day.

Scrolling through Twitter last night, I saw this:

It’s time-stamped 6:33 PM.  I’m by no means criticizing the announcement or the many like it posted by other school districts. Advance notice is a good thing, especially for parents who need to plan.  Alas, I feel for the kids who will never know the experience of waking up early, turning on the radio, and waiting to learn whether your school was on the list of closings.

For us, the anticipation was intense.  Schools were called alphabetically, and we lived in South Burlington.  Sure, there were signs.  If Burlington schools were closed, our hopes would rise as there’s no way we’d be open if they’re closed!  Or, conversely, if Essex or Jericho schools weren’t announced, our spirits would sink, knowing that if they’re open, we will be too.  Still, we never knew until we knew.

While I don’t remember the exact list, I remember it feeling like the radio announcer was listing the Rs in slow motion . . .

• “Randolph High School . . . Richford High School . . . Richmond Elementary . . . “

Oh, to be so young and carefree that our whole lives turned on what came next!

Would it be the soul-crushing “Stowe Middle and High School?”  Or the four greatest words in the history of snow days? “

“All South Burlington Schools.”

Maybe the anticipation I remember can be replicated by constantly refreshing the school district’s Twitter feed.  Or maybe hopes rise & fall with the results spit out by the Snow Day Calculator.  Still, I’ll always smile when I reminisce about those winter mornings huddled around the radio.

Onto the quiz!

Rules

•  Open book, open search engine, text-a-friend.
• Exception:  Question 5.  We try to play that one honest.
• Unless stated otherwise, the Vermont Rules of Professional Conduct apply
• Team entries welcome, creative team names even more welcome.
• E-mail answers to michael.kennedy@vermont.gov
• I’ll post the answers & Honor Roll on Monday
• Please consider sharing the quiz with friends & colleagues
• Share on social media.  Hashtag it – #fiveforfriday

Question 1

Here are some exceptions to one of the rules:

• 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?

 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.

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.

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.

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:

Each rewatching of My Cousin Vinny should count towards an attorney's CLE credits.

— Waqar Vick Rehman (@WaqarVick) February 3, 2022

I agree!

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?

Bonus: what’s the name of the store?

Ohio lawyer alleged to have engaged in sexual misconduct with court staff and clients allowed to resign prior to a public disciplinary hearing. How would a similar situation play out in Vermont?

It’s been a while since I’ve blogged.  I hope your summer is going well.

Today’s goal is to outline a little-known aspect of Vermont’s disciplinary program.   Perhaps I’m wrong to describe it as “little known.”  To test my assumption that it is, I’ll use this scenario:

1. Disciplinary complaint is filed against Attorney.
2. Screening Counsel reviews the complaint and refers it to Disciplinary Counsel for investigation.
3. Screening Counsel’s referral directs Attorney to provide Disciplinary Counsel with a written response to the complaint within 21 days.
4. Attorney sends Disciplinary Counsel a letter in which Attorney does not respond to the allegations in the complaint. Rather, Attorney writes “I hereby resign my Vermont law license and waive my right to reactivate it.  This ends this matter.  It’s moot. I no longer have a license for you to sanction.”

Does Attorney’s argument hold water?

No.  Attorney is as wrong as was the defense in My Cousin Vinny.

Before I get to Vermont’s rule, why am I even blogging about a lawyer’s attempt to resign while under disciplinary investigation?  Because, as reported by The Legal Profession Blog and Bloomberg Law, the Ohio Supreme Court recently accepted the resignation of an attorney who, according to a complaint filed by Ohio Disciplinary Counsel, had engaged “in inappropriate comments and conduct with female court staff and clients.”   The complaint can be accessed here.  As noted on the Legal Profession Blog, ‘[t]he lengthy charges make for painful reading.”

The disciplinary complaint did not result in a hearing.  Rather, last week, the Ohio Supreme Court granted the attorney’s application for “resignation with disciplinary action pending.”  The opinion is here.

One justice dissented, focusing on the fact that under Ohio’s rules, when the Court approves a request to resign while under disciplinary investigation, most of the details remain confidential.  As such, the proceedings:

• “are generally enshrouded in a cloud of secrecy that keeps the public, the bench, and the practicing bar ignorant of the reasons for the request to resign with discipline pending. This is problematic, especially when the allegations against an attorney describe a disturbing pattern of predatory behavior toward a vulnerable population.” (internal citation omitted.)

The dissenting justice acknowledged that the result left the attorney ineligible to practice law.  However, the justice added:

• “But I do not think that this court should favor a process that is quick over a process that is designed to obtain truth and dispense justice that more effectively protects the public. The disciplinary proceedings governed by this court may provide the victims, the public, and [the attorney] with much-needed transparency about the entire situation. While the alleged victims would bear the heavy burden of testifying before a hearing panel, I believe that they should at least have the opportunity to have their voices heard by the public and by this court. The public should know what this court and the numerous volunteers and employees participating in this court’s disciplinary process are doing to keep the public safe from attorneys who are alleged to have violated the Rules of Professional Conduct in perturbing manners. And at least in the disciplinary process, this court has the opportunity to provide help to the attorney should an addiction or other issue be the root cause of the problem. By accepting [the attorney’s] resignation, the court simply washes its hands of the problem without providing any real resolution.”

In Vermont, Supreme Court Administrative Order 9 establishes the Professional Responsibility Program and sets out the rules that govern the disciplinary process.  Rule 23 of A.O. 9 is entitled “Resignation by Attorneys Under Disciplinary Investigation.”  The rule allows an attorney under investigation to resign by affidavit.

Among other things, the affidavit must acknowledge “that the material facts upon which the complaint is predicated are true” and that “the attorney knows that if charges were predicated upon the misconduct under investigation the attorney could not successfully defend against them.”  Rule 23 also allows Disciplinary Counsel to file a statement of facts that supports a finding that the attorney violated the Rules of Professional Conduct. If accepted, the Court enters “an order disbarring the attorney on consent.”

Rule 23(D) is most relevant to today’s post.

• “(D). Disclosure. The order disbarring the attorney on consent as well as the affidavit and statement of facts shall be a matter of public record.”

So, returning to the scenario I posed at the beginning of this post, Attorney would not be able to avoid investigation and public scrutiny by writing to Disciplinary Counsel “I resign and that’s that.”

Unless you’re disciplinary counsel investigating an attorney who attempts to resign, or on the Supreme Court or the Professional Responsibility Board and tasked to review an affidavit by resignation, may this post never be one to which you need to refer for guidance.

Civility & Decorum: a courtroom scene.

And….action!

I’ve lost track of the number of times I’ve blogged or spoken on civility.  I’m sure many are tired of it.

However, I’m equally certain that Vermont’s judges have supported my efforts.  The judge to whom I owe the most thanks for supporting me on this front often uses a saying that captures the heart of my message far more succinctly than I:

“You are free to disagree.  You are not free to be disagreeable.”

Today’s post honors that judge.

The story comes via AL.com and the ABA Journal.  Respectively, the headlines are:

• “Judge told Alabama defendant ‘I’ll bust your ass’ complaint alleges.”
• “Judge is accused of threatening to bust butt of traffic defendant, claiming she likes to ‘flim-flam’ people.

Cutting to the chase: the conduct complaint filed against the judge by Alabama’s Judicial Conduct Commission is here.

From the headlines, and the fact that the judge has been charged, I suspect you’ve already reached the same conclusion as I: it is unlikely history will reflect as kindly on this Alabama courtroom scene as it does on those in To Kill a Mockingbird and My Cousin Vinny.

Here’s what happened.

In 2018, Kimberly Farranto’s car was hit while parked at the restaurant where she worked.  The driver fled, but Farranto was able to determine from a credit card receipt that a passenger’s last name was “Price.” She was not able to determine who was driving.

Flash forward to February 2020.

Farranto appeared in court on a charge of driving with a suspended license.  Waiting for her case to be called, she noticed that the judge’s last name was “Price.” Apparently using her cell phone to investigate, she learned that the judge was likely the father of the passenger in the car that hit hers. Once her case was called, Farranto asked the judge if the passenger was his son.  When the judge answered “yes,” Farranto asked the judge to recuse himself.  When asked why, Farranto told the story and explained that she might sue the judge’s son to provide the name of the driver.

In the end, the judge recused himself.  It’s the colloquy along the way that is relevant to this post.  For a full description, read paragraphs 13-24 of the conduct complaint.  Among other things, the complaint alleges:

• “Judge Price interrupted Ms. Farranto and was very very angry. He screamed at her that, if she went after his son, he would ‘sue her ass.’”

Then,

• “Continuing in a loud voice, Judge Price responded ‘Oh yeah, I know who you are. You’re the lady who likes to flim-flam people.’”[i]

Later, after being told that Farranto might sue his son:

• “Judge Price yelled at her threateningly. ‘If you sue my son, I will bust your ass.’ Judge Price’s face was very red.”

As, the “discussion” continued:

• “Judge Price yelled at Ms. Farranto, ‘You’re a G*d D**n liar.”

It went on from there, with more of the same. Eventually, the judge gave Farranto both the driver’s name and a new court date with a different judge.

I am not aware of a Vermont judge ever reacting like this.  Still, lawyers, let’s use it as a teachable moment.  If this were to happen to you, how should you respond?

The answer: exactly as Ms. Farranto did.

Rule 3.5(d) of the Vermont Rules of Professional Conduct prohibits discourteous conduct that is degrading or disruptive to a tribunal.  A comment to the rule states that “[a] lawyer may stand firm against abuse by a judge but should avoid reciprocation; the judge’s default is no justification for similar dereliction by an advocate.”

According to the conduct complaint, “[throughout the entire exchange . . . Ms. Farranto did not get upset, raise her voice, or act rudely.”  In other words, it appears that Farranto stood firm without reciprocation or similar dereliction. That is, while she disagreed with the judge’s behavior, Ms. Farranto was not disagreeable in response.

Nor am I aware of any matter in which a Vermont judge presided over a hearing at which a litigant indicated an intent to sue the judge’s child.  Judges, if that happens, here’s a primer on judicial recusal.  I suggest the ABA approach instead of Judge Price’s.  Again, the maxim matters: when it comes to recusal, you may disagree with the request, but you should not be disagreeable in response.

Which brings me to my favorite line in this unfortunate episode.

After Ms. Farranto left the courtroom, Judge Price said to the Chief Magistrate, “Ms. Roberts, I think I might have lost my cool.”

The Chief Magistrate replied, “You think?”

[i] Until reading this, I did not know what “flim-flam” meant or that it could be a verb.  Per Dictionary.com, when used with an object, “flim-flam” means “to trick, deceive, swindle or cheat.”