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?”

And Scene GIFs - Get the best GIF on GIPHY

[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.”

Five for Friday #215

Welcome to Friday and the 215th #fiveforfriday legal ethics quiz.

Today’s is a Vanilla Ice intro:  meaning, I’m skipping the intro and going quick to the quiz, to the quiz no fakin.

Oh, but wait!  Speaking of 215, and with the next line of Ice, Ice, Baby in mind, I’d be remiss not to mention Patrick Kennedy.

Not only does he love all things bacon – he once made a bacon-scented candle – Patrick’s birthday is February 15th.  That’s right – 2/15.  So, for readers who enjoy the traditional intro tied to the week’s number, here’s a post that I did in honor my brother’s birthday last year.

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.
  • 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 don’t use the “comment” feature to post your answersPlease consider sharing the quiz with friends & colleagues.
  • Please consider sharing the quiz social media.  Hashtag it – #fiveforfriday

 Question 1

It happened again.  So, fill in the blank.

A change to wiring instructions should put a lawyer on alert to a potential _________:

  • A.  conflict of interest.
  • B   situation in which the client is not competent to make informed decisions about the representation.
  • C.  violation of the rule that prohibits unreasonable fees.
  • D.  trust account scam.

Question 2

 Lawyer called with an inquiry.  I answered, “you need to make sure to avoid noisy ______________.”

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

  • A.  withdrawal.
  • B.  clients.
  • C.  judges.
  • D.  technology.

Question 3

 I often refer to the 7 Cs of Legal Ethics.  A rule involving one of the Cs includes a comment that reads:

  • “A lawyer should adopt reasonable procedures, appropriate for the size and type of firm and practice, to determine in both litigation and non-litigation 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.”

Which C?

Question 4

 When a lawyer holds funds in trust and in which two or more persons claim interests, a rule specifically requires the lawyer:

  • A.  to resolve the dispute.
  • B.  to keep the funds separate until the dispute is resolved.
  • C.  to promptly distribute all portions that are not in dispute.
  • D. B & C.

Question 5 & Bonus

There’s a lawyer who has been in the news a lot lately.  The news has included reports that disciplinary complaints have been filed against the lawyer in at least five jurisdictions.

A few weeks ago, the lawyer held a press conference in which the lawyer analogized a client’s claims to a famous scene in this blog’s favorite legal movie, My Cousin Vinny.

Name the lawyer.

Bonus:  identify the specific issue that both the lawyer and Vinny argued rendered witnesses unreliable.

the-quiz

Most Important? We are down to 8!

And then there were 8!

Ten days ago, I created the Professional Responsibility & Legal Ethics Tournament. I matched up 64 rules & concepts associated with PR and legal ethics in an NCAA-style bracket.  Ever since, you’ve voted, and we are down to the Elite 8 rules & concepts.  Winners of this round will advance to an historic Final Four.

To vote, go to ELITE 8.

IMG_4678

As the picture shows, this tournament is intentionally low-tech.  Meaning, “no tech.”  Except for the videos referenced below.  If I must say so myself, the videos are jam-packed with hot tips on legal ethics!

This morning, I posted Briefly: what matters most in legal ethics?  In it, I distilled each of the then 16 remaining rules & concepts to a single thought.  For each of today’s 8 winners, here’s the thought I shared this morning.

1.  DUTIES TO NON-CLIENTS

Candor to a Tribunal vs. Social Media: Looking, Friending & Scrubbing

  • The integrity of the system requires that judges not be misled by false evidence.
  • Evidence must not be unfairly located, obtained, concealed, or destroyed.

2.  CONFLICTS & CONFIDENCES

Screening/Imputed Conflicts vs. Same or Substantially Related Matters?

  • Fairness includes strict measures to prevent improper sharing of confidential information.
  • A lawyer cannot switch sides.

3.  TRUST ACCOUNTS, FEES and DUTIES TO CLIENTS

Who Decides? Lawyer or Client? vs. Tech Competence

  • The client chooses the destination, the lawyer the route.
  • It’s 2020.

4.  MY COUSIN VINNY

Were these MAGIC grits?  vs. Did you say “yutes?”

  • On cross, know your facts.
  • What was that your honor?

Again, to vote, go to ELITE 8.

For more, including four 15-minute videos analyzing the rules & concepts in each of the tournament quadrants, go here.  Where else can you get at least 16 tips on professional responsibility & legal ethics in 15 minutes from a speaker sitting at his Garage Bar?!?!

#prmadness

Ethical Responsibilities | Bollinger Shipyards

The 197th Five for Friday Legal Ethics Quiz

I hope you’re all doing well.  Remember: keep rowing the boat.

I don’t have much to say this week.

Wait….are y’all serious?? I can hear the cheers from here! Come on!

Anyhow, I got out for a run yesterday.  During my trek, I pondered “197.”  Initially, my mind fast-forwarded to “200” and whether I should do something special to mark the occasion.  Then I re-wound.  As we’ve learned, 3 weeks is an eternity.  Day by day.

Then, after days of swirling in my clouded mind, a thought crystallized.

Like the rest of you, I haven’t gone anywhere for 2 weeks.  I’ve got my music, TVs, and streaming channels.  I’ve got fish & meat in the freezer, coffee/half & half galore, my Garage Bar, my dart board, the keyboard I’m (still) teaching myself to play, and my bike.  In theory, and likely in the mind of February-me, life is damn good: I’m not at the office and I’ve got all my things.

Things.

On a scale of 0-20, 0 being least important, 20 being most, I’ve realized that my things are, at most, 0.3.

I can hear you again: “Mike, what’s the rest?”

The answer came to me during my run.

Spending time with family and friends.  Chatting with the familiar faces working the various stores and businesses that life brings me to every week.  Catching up with the lawyers I bump into at the court house.  Chuckling at the couple that always takes the corner stools, whose names I couldn’t tell you but whose drink orders I know by heart. The option to wait until the morning to text my Dad about the Sox game.

The life experiences that have nothing to do with things.

They are, at the very least, 19.7

This will end.  And, when it does, I hope I remember the appropriate balance between life and things.

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
  • 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 don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

Attorney called me with an inquiry.  Attorney said “Mike, I represent a witness.  The defendant’s lawyer keeps contacting my client directly. I asked the lawyer to stop.  Lawyer aid Lawyer doesn’t need my permission because my client is only a witness, not a party.  Is Lawyer right?”

What was my response?

  • A.   Yes.
  • B.   The rule is unclear.
  • C.   It depends.  Is your client a material witness?
  • D.  Lawyer is wrong. The rule applies to any person represented in a matter.

Question 2

True or false.

The rule on trial publicity only applies to criminal cases.

Question 3

With respect to legal ethics, the phrase “going up the ladder” is most often used in connection with the duties of an attorney who:

  • A.  is bound to report another attorney to disciplinary authorities.
  • B.  represents an organization.
  • C.  is being paid by someone other than the client.
  • D. paints houses on the side.

Question 4

At one of the Zoom seminars I intend to present, you wake from a brief nap to me discussing conflicts of interest.  If I’m doing my job, it’s unlikely that I will use the word/phrase _____-:

  • A.  material limitation.
  • B.  former.
  • C.  held in connection with a representation.
  • D.  prospective.

And, if I’m doing my job, it’s your resolve that breaks.

Question 5

I’ve been running the Professional Responsibility & Legal Ethics Bracket. It’s based on the NCAA March Madness brackets.  In 3 of the 4 quadrants, the contestants are terms and phrases associated with legal ethics.   To vote in the 2nd round, go here.

The contestants in the 4th quadrant are quotes from My Cousin Vinny.  That’s a hint for question 5!  It’s a “fill-in-the-blank” question.

I’ll give Bill Belichick his due: when it comes to coaching football, the long-time Patriots coach clearly has satisfied the duty of competence.  Of course, as a Steelers fan stuck behind enemy lines in New England, I’ve always suspected Belichik’s team of skirting the ethics rules.  For example, 2015’s notorious Deflategate Scandal that involved Tom Brady and underinflated footballs.

At a press conference, Belichick defended his team’s ethics by blaming the deflated footballs on the weather:

  • “”So the atmospheric conditions, as well as the true equilibrium of the ball, is critical to the measurement.”

Asked further about the air pressure measurements in the footballs, Belichick, normally not one to say anything to suggest he’s aware of pop-culture, replied:

  • “”I’m not a scientist. I’m not an expert in footballs. I’m not an expert in football measurements. I’m just telling you what I know. I would not say I’m _____________ of the football world, as she was in the car-expertise area.”

Fill-in-the-blank.

Again, to vote in the 2nd round of the #prmadness bracket, go here.

Peace.

the-quiz

 

20 Answers for 2020

Wow!

On Friday, I posted 20 questions for 2020.  Far more than the usual 5, I didn’t expect anyone to take time to submit answers.  Rather, the post was meant to serve as a resource addressing some of the basics on professional responsiblity and ethics in Vermont.

But submissions I received!  Thank you!  The answers follow today’s unexpectedly large Honor Roll.

Honor Roll

Answers

Question 1

The rules with which Vermont attorneys must comply went into effect on September 1, 1999.  They are called:

  • A.   The Vermont Rules of Professional Conduct.
  • B.   The Vermont Code of Professional Responsibility.
  • C.   The rules.
  • D.   Those damn rules.

Question 2

Vermont’s attorney regulation program is called the “Professional Responsibility Program.”  The PRP is part of the:

  • A.  The Secretary of State’s Office of Professional Regulation
  • B.   The Vermont Bar Association
  • C.   The Vermont Judiciary.  Chapter II, Section 30 of the Vermont Constitution vests the Supreme Court with the authority to structure an attorney discipline and disability system.  To that end, the Court has promulgated Administrative Order 9, the order creating the Professional Responsibility Program.
  • D.   The Office of the Attorney General

Question 3

Vermont lawyers must carry professional liability insurance.

  • A.    True. It is required by statute.
  • B.    True. It is required by the rules.
  • C.     True, but there is an exception for government employees & in-house counsel.
  • D.    False.  (I intend to blog on this in the coming weeks & months, maybe more than once.)

Question 4

Rule 1.1 requires lawyers to provide clients with competent representation.  In 2018, Vermont became the 33rd state to adopt a Comment to Rule 1.1 that makes it clear that the duty of competence includes a duty to understand the risks and benefits of _______________.

RELEVANT TECHNOLOGY

Question 5

Speaking of the comments to Rule 1.1, in 2019, Vermont added another comment to the rule.  Following the recommendation of the ABA and several commissions that looked at this important issue, the new comment makes it clear that _____________ is an aspect of competence.

Question 6

Rule 1.2(d) prohibits a lawyer from assisting or advising a client to engage in conduct that violates the law.  In Vermont, as with a few other states, that poses issues for lawyers whose clients are involved with a particular industry.

▪What’s the industry?

Cannabis/Marijuana.  The concerns led to the Court adopting Comment 14 to Rule 1.2(d). The Comment clarifies that a lawyer does not violate the rule by assisting and advising clients on matters that are legal under state law.

Question 7

Rule 1.3 requires lawyers to act with reasonable diligence while representing clients.  A comment to the rule suggests that the duty requires sole practitioners to:

  • A.  have a succession plan
  • B.  use a cloud-based trust accounting system
  • C.  hire a bookkeeper (if only part-time) to reconcile the trust account
  • D.  Either B or C.

Question 8

Under Vermont’s rules, a lawyer _______ disclose a client’s intent to commit suicide.

  • A.    Must
  • B.    Must not
  • C.    May.   V.R.Pr.C. 1.6(c) Comment[10]

Question 9

In Vermont, if a prospective client meets with a lawyer in good faith, but does not retain the lawyer, the lawyer’s duty of loyalty is relaxed vis-à-vis the client. That is, if the lawyer did not receive information that could be significantly harmful to the prospective client, the lawyer may appear adverse to the prospective client.

However, another duty is not relaxed.

Which duty remains as stringent as if an actual attorney-client relationship had been formed?

The duty to maintain the prospective client’s confidences.  See, V.R.Pr.C. 1.18

Question 10

In Vermont, how much of a lawyer’s own money may the lawyer keep in a client trust account?

  • A.   $0
  • B.   No more than $100.
  • C.   No more than $500.
  • D.   An amount necessary to cover bank fees & service charges.  V.R.Pr.C. 1.15(b)

Question 11

In Vermont, a lawyer may not disburse funds from trust unless the deposit that is the source of the disbursement constitutes “collected funds.”

Is the following statement true or false?

  • There are no exceptions to the rule.

That is false.  There are several instruments that lawyers my presume to constitute “collected funds” upon deposit.  These exceptions appear in Rule 1.15(g).

Question 12

Fill in the blank (it’s way more than one word):

  • Unlike many other states, Vermont has a rule that specifically prohibits a lawyer from ________________ in order to gain an advantage in a civil matter.

Present, Threaten to  Present, or Participate in Presenting Criminal Charges

Question 13

Fill in the blank:

“In representing a client, a lawyer shall not communicate on the subject of the representation with a ____________ the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.”

  • A.  Person.   V.R.Pr.C. 4.2
  • B.  Party

Question 14

In Vermont, which set of rules is relaxed for lawyers who provide pro bono services under the auspices of a non-profit or court approved program?

The rules on _________:

  • A.   Trust Account Management
  • B.   Communicating with a Represented Person/Party
  • C.   Confidences
  • D.  Conflicts of Interest.   V.R.Pr.C. 6.5.

Question 15

Under Vermont’s legal ethics rules, when a lawyer receives a document relating to the representation of a client that the lawyer knows or should know was inadvertently sent, the lawyer ________________.

  • A.   must notify the sender.  V.R.Pr.C. 4.4(b).
  • B.   must notify the client and abide by the client’s instructions on whether to notify the sender.
  • C.  must notify the client and abide by the client’s instructions on whether to use or return the document.
  • D.   B and C.

Question 16

By rule, a pooled-interest bearing trust account must be reconciled:

  • A.   Quarterly.
  • B.   Periodically, but no less than quarterly.
  • C.   Timely, with “timely” meaning “no less than monthly.”  V.R.Pr.C. 1.15A(a)
  • D.  Regularly.

Question 17

By rule, what must a Vermont lawyer maintain for 6 years following the termination of a representation?

  • A.  The client’s file.
  • B.   A copy of the client’s file.
  • C.   Records of funds or property held for the client during the representation.  V.R.Pr.C. 1.15(a).
  • D.   Copies of any advertisement that caused the client to inquire about representation.

Question 18

The matter is Swift v Braun. 

  • Associate works at Small Firm.  Small Firm represents Swift.
  • Large Firm represents Braun.
  • Associate accepts a job at Large Firm.

Unver Vermont’s rules, can Large Firm continue to represent Braun?

  • A.    Yes.
  • B.    Yes, if Associate is screened from working on Swift v. Braun.
  • C.   No.
  • D.   It depends whether Associate was personally & substantially involved in working on Swift v Braun while at Small Firm.  V.R.Pr.C. 1.10(a).

Questions 19, 20 and bonus

In 2019, the ABA updated its list of the Top 25 legal movies of all-time.  2 of the top 3 are set in the same state.

  • 19.  Name one of the movies.   To Kill a Mockingbird
  • 20.  Name the other.  My Cousin Vinny
  • Bonus: name the state.  Alabama

Happy 2020!

Image result for 2020"

Wellness Wednesday: Judge Garland & My Cousin Vinny

Today, three of my favorite topics collide:

  1. A lawyer’s duty of competence
  2. My Cousin Vinny
  3. Attorney Wellness

To me, attorney wellness is much more than the staggering rates at which behavioral health issues affect lawyers, their non-lawyer assistants, judges, and law students.  Well-being also includes enjoying the light moments whenever possible.

The very first rule in the Rules of Professional Conduct requires lawyers to provide clients with competent representation.  It’s widely recognized that Vincent Gambini’s cross-examinations in My Cousin Vinny more than satisfied the duty of competence.

As I’ve previously blogged:

  • “Many great legal minds have mentioned the movie.  For proof, scroll down to the “critical reception” section of the film’s Wikipedia page.  There, alongside references to Justice Scalia and Judge Posner, you’ll see a quote from Alberto Bernabe.  A frequent member of this blog’s #fiveforfriday Honor Roll, Professor Bernabe is also the author of My Cousin Vinny: a story about legal education.  The post links to a fantastic post on Abnormal Use that honored the movie’s 20th Anniversary and that includes other great links to articles on the movie and the legal ethics issues raised in it.”

Time to add another great legal mind to the list: Judge Merrick Garland.

Yesterday, the United States Court of Appeals for the District of Columbia Circuited issued this opinion.  Judge Garland opened the opinion as follows:

  • “In 1992, Vincent Gambini taught a master class in cross-examination.  Trial
    counsel for the National Labor Relations Board and the National Union of Healthcare Workers apparently paid attention.”

Keith Lee of LawyerSmack is one of the best follows on Twitter.  Yesterday, he commented on Judge Garland’s references to My Cousin Vinny.  Lee’s tweet thread is here.  AboveTheLaw blogged on both Judge Garland’s opinion and Lee’s tweets.

If you’re a fan of the movie, I recommend the opinion, Lee’s tweets, and the ATL blog.

Personally, I thank all three for contributing to my well-being, while also incorporating the duty of competence.

Image result for my cousin vinny

Monday Morning Answers #150

Happy Monday!  I hope your ♥ week is off to a good start.

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

Honor Roll

Answers

Question 1

There’s only one rule that specifically references both criminal cases & divorces.  It’s the rule on:

  • A.   Pro Bono.
  • B.   Conflicts with former clients.
  • C.   Conflicts with current clients.
  • D.   Contingent fees.  (Rule 1.15(d) prohibits contingent fees in most domestic relations matters and all criminal cases)

Question 2

There’s a rule that prohibits ex parte communications with two groups of people.    Each group begins with the same letter.

Name each group.

Judges & JurorsRule 3.5

Question 3

True or False.

Under our current rules, a nonlawyer paralegal can have an ownership stake in a law firm.

FalseRule 5.4

Question 4

Per one of the conflict rules, a lawyer shall not prepare for a client an instrument (ie: a Will) that gives the lawyer a substantial gift unless ____________:

  • A.  the lawyer is related to the client.  Rule 1.8(c)
  • B.  the client gives informed consent, confirmed in writing.
  • C.  the lawyer advises the client to seek independent counsel before executing the instrument.
  • D.  B & C.

Question 5

Last year, the ABA updated its list of the top 25 legal movies of all-time.  Two of the top three on the original list are set in the same state.

Name the movies and the state.

To Kill A Mockingbird & My Cousin Vinny are both set in Alabama

See the source image

Monday Morning Answers #147

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

And, on Martin Luther King Day, here’s a quote from Dr. King that relates to the point I tried to make in the intro to the quiz:

 “On that day the question will be, ‘What did you do for others?'” 

(“The Three Dimensions of a Complete Life” sermon)

HONOR ROLL

ANSWERS

Question 1

In Vermont, if a prospective client meets with but does not retain a lawyer, the lawyer’s duty of loyalty is relaxed vis-à-vis the client, but another duty is not.

Which duty?

The duty of confidentiality.  Rule 1.18(b)

Question 2

There’s a rule that prohibits “qualitative comparisons” that cannot be factually substantiated.  A disciplinary prosecution under the rule is most likely to involve:

  • A.  a frivolous pleading
  • B.  a statement made during closing argument in a jury trial
  • C.  extrajudicial statements made to the press that are likely to prejudice an adjudicative proceeding
  • D.  attorney advertising

Question 3

With respect to the Rules of Professional Conduct, the phrase “acting through its duly authorized constituents” is in the rule on:

  • A.  the duties when representing an organization.  Rule 1.13(a)
  • B.  lawyers holding public office
  • C.  firm names & letterhead
  • D.  the unauthorized practice of law

Question 4

Here are 2 things I mentioned at CLE:

  1. last-minute changes to wire instructions;
  2. a prospective out-of-state client who claims to be owed money by a Vermonter, and who only communicates with you by e-mail

What topic was I discussing?

TRUST ACCOUNT SCAMS.   Here are some of my posts on scams:

Question 5 (Fill in the blank)

I often blog about Rule 1.1’s duty of competence.

Some might argue that when the answer is relevant to a witness’s credibility, competence includes knowing how long it takes to cook grits .

Proponents of that theory would assert that Vincent Gambini complied with Rule 1.1 by asking that “so, Mr. Tipton, how could it take you 5 minutes to cook your grits when it takes the entire grit eating world __________ minutes?”

20.  Vinny’s cross-examination of Mr. Tipton is here.

See the source image

 

 

 

Monday Morning Answers #134

Welcome to Monday.

Friday’s questions and story about Emperor Norton are here.  Today’s answers follow the honor roll.

Honor Roll

Question 1

What is this the definition of?

  • an 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.

That is the definition of “informed consent.”  V.R.Pr.C. 1.0(e)

Question 2

By rule, of the following, which must a financial institution  agree to do what in order to be approved as a depository for pooled interest-bearing trust accounts?

  • A.  block ACH transfers to and from such accounts.
  • B.  notify disciplinary counsel whenever such accounts are overdrawn.  Rule 1.15B(d)
  • C.  not issue debit cards that are tied to such accounts
  • D.  All of the above.

Question 3

Lawyer represents Organization.   Can Lawyer also represent one of Organization’s directors?

  • A. Yes, subject to Rule 1.7, which is the rule on conflicts.  Rule 1.13(g)
  • B. No, the rules prohibit dual representation of organization and its directors/officers/constituents.

Question 4

Some might argue that “paltering” violates the rule(s) on:

  • A.   honesty.   
  • B.   conflicts
  • C.   safekeeping client property
  • D.  competence & diligence

Paltering is actively using the truth to deceive.  For more, see my post On Ponds, Paltering & Puffery.

Question 5

The ABA recently updated its list of the 25 Greatest Legal Movies of All-Time.  Two of the Top 3 are set in the same state.

What state?

A timely question given that we are in the midst of my favorite season of the year: college football season.

To Kill A Mockingbird (#1) and My Cousin Vinny (#3) are both set in ALABAMA.

Go Clemson!

See the source image