Five for Friday #106

Welcome to 106!

So, some of you know that I used to coach high school basketball.  I retired after the 2013-14 season, having spent 15 seasons coaching the varsity at my alma mater, South Burlington High School.

This year, I got back into it.  I took the job as the coach of the “B” team at Frederick H. Tuttle Middle School.

By the way, you know a sure sign of age?  When you coach at a school that is named after someone who worked in the system when you attended it.  Back when I was a student at South Burlington Middle School, Mr. Tuttle was the district’s superintendent.

Anyhow, back to 106.

I’ve noticed lots of differences between coaching varsity and middle school.  Lots.  One that stands out: the questions.  I love the guys, but, wow!  Can they ask questions!! Sometimes I feel like it’s 106 questions per day.

Often, the questions have nothing to do with what we’re doing. For instance, during yesterday’s practice, I reviewed a drill before we started it.  When I was done, I asked “any questions?”  A few hands went up.

(Middle schoolers still raise their hands.  It’s awesome.  High schoolers weren’t exactly into raising their hands.)

I called on a player.  He said “coach, do we have to wear a tie to our game on Saturday?”

Nothing to do with the drill.  You get the idea.

We had a lot of fun this year.  We worked hard, improved, and, using basketball as vehicle, focused on 3 keys to life: be on time, be prepared, be respectful. We even won a few games in the process, finishing 10-4 in advance of this weekend’s season ending tournament.

Last night was our final practice.  Over the course of the season, I realized that I didn’t miss coaching too much.  I likely won’t coach again next year. But, last night, I also realized that, once the season ends, I’ll miss the players.  Over a season, a routine develops.  Relationships develop.  I’ll miss those.

And, as I thought about it, I’ll miss the 106 daily questions.  The questions represent an innocence, almost a naivete, that won’t last as the players transition from tweens to teens.  As proud as I am of how they’ve grown as individuals and a team, there’s a certain melancholy that comes from knowing that, soon, they’ll no longer raise their hands, no longer ask the beautifully simple questions.  And for whatever reason, I find that somewhat sad.

I’ll end with my favorite question.

In middle school, the “A” and “B” teams play back-to-back.  At our first home game, I gathered the “B” players in the locker room as the final few minutes of the “A” game ticked off the clock.  I went over the 3 goals we had for the game.  When I finished, I said “any questions?”

Now, when a varsity coach asks “any questions,” the response, if any, tends to be something to do with the game plan.  For example, “coach, did you say we’re trapping ball screens or not?” So, when a hand went up, I assumed it’d be a question along those lines.


I called on the player.  He said “coach, when we go out to the court, should we turn the lights off in the locker room?” I paused, thinking he must be joking. Given my varsity experience, I expected another player to tell him to be quiet, albeit not in those terms.

But then I realized that 12 sets of eyes were intently focused on me, waiting for the answer.

I responded “why would we turn the lights off?”

“Coach, it would save energy.”   Several nods of agreement around the locker room.

Again, I paused.  Finally, I said “good question, but we don’t have to turn the lights off.  As soon as we go out to the court, the ‘A’ team guys are coming back into the locker room, so let’s leave the lights on for them.”

The player who had asked looked me straight in the eyes, pointed at me, and said “Coach, that’s why you’re the coach!”  Then, the team bounded out of the locker room eager to take on that day’s opponent.

Never discourage questions. Especially from kids.  Someday you’ll miss the 106 that drove you crazy yesterday.

Onto the quiz!


  • None.  Open book, open search engine, text/phone/email-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
  • 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
  • Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

There’s a rule that applies only to a specific type of lawyer.  Per a comment to the rule, it’s a type of lawyer who “has the responsibility of a minister of justice and not simply that of an advocate.”

What type of lawyer?

Question 2

(this one keeps happening, so I’m going to keep asking)

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

What was my response?

  • A.   Yes, he’s right.
  • B.   The rule is unclear.
  • C.   The rule is unclear, but, by case law, no, he’s wrong.
  • D.  He’s wrong. The rule applies to any person represented in a matter.

Question 3

How long do the rules require lawyers to keep copies of advertisements?

  • A.   2 years
  • B.   6 years.
  • C.   Wait, what? We have to keep copies of advertisements?
  • D.  They don’t.  The 2-year retention requirement was repealed in 2009.

Question 4

True or false.

If a lawyer sells her practice, the rules require her to cease the private practice of law in the geographic area in which she practiced.

Question 5

Monday is Presidents’ Day.

25 U.S. Presidents have been lawyers.

Name the most recent U.S. President to have argued a case before the United States Supreme Court prior to becoming president.






Presidents’ Day & Civility



On Presidents’ Day, I thought I’d share a message from Linda Klein.  Attorney Klein is the current President of the American Bar Association.  Her words are far better than any summary I could deliver.  So, please read Attorney Klein’s President’s Message from the February edition of the ABA Journal.

President Klein’s message reminds me of  Comment 4 to Rule 3.5 of the Rules of Professional Conduct:

  • “The advocate’s function is to present evidence and argument so that the cause may be decided according to law. Refraining from abusive or obstreperous conduct is a corollary of the advocate’s right to speak on behalf of litigants.  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. An advocate can present the cause, protect the record for subsequent review and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics.”

Finally, as a reminder, the Vermont Bar Association adopted Guidelines of Professional Courtesy in 1989.  Here they are:

Guidelines of Professional Courtesy
  • In fulfilling his or her primary duty to the client, a lawyer must be ever conscious of the broader duty to the legal system.


  •  A lawyer should act with candor, diligence and utmost respect.
  • A lawyer should act with courtesy and cooperation, which are necessary for the efficient administration of our system of laws.
  • A lawyer should act with personal dignity and professional integrity.
  • Lawyers should treat each other, their clients, the opposing parties, the courts, and members of the public with courtesy and civility and conduct themselves in a professional manner at all times.
  • A client has no right to demand that counsel abuse the opposite party or indulge in offensive conduct. A lawyer shall always treat adverse witnesses and parties with fairness and due consideration.
  • In adversary proceedings, clients are litigants and though ill feelings may exist between clients, such ill feelings should not influence a lawyer’s conduct, attitude, or demeanortowards opposing lawyers.
  • A lawyer should not harass opposing counsel or counsel’s clients.
  • Lawyers should be punctual in communications with others and in honoring scheduled appearances. Neglect and tardiness are demeaning to fellow lawyers and to the legal system.
  • If a fellow attorney makes a just request for cooperation, or seeks scheduling accommodation, a lawyer shall not arbitrarily or unreasonably withhold consent.
  • Effective advocacy does not require antagonistic or obnoxious behavior. Lawyers should adhere to the higher standard of conduct which judges, fellow attorneys, clients, and the public may rightfully expect.

Five for Friday #13

This week included my thoughts on confidential settlement agreements and steps to consider in response to an attempt to compel disclosure of information relating to the representation of a client. Also, the Court promulgated new Rules of Admission.  The changes include adopting the Uniform Bar Exam, as well as replacing the clerkship with a CLE and mentorship program. See, New Rules of Admission, Rule 12.  The Board of Bar Examiners and the MCLE Board will need mentors.  If you’re interested, let me know.

On to Five for Friday!

  1.  It’s okay to look up the answers to questions 1-4: Google, the rules on the Court’s website, the rules on this blog, talking with a colleague.  Try NOT to use Google or a colleague’s mind for #5.
  2. Don’t post your answers in the Comments.  Please email them to
  3. Forward this to other lawyers – in AND out of Vermont.  The more the merrier.

Question 1

Two years ago, Paralegal worked for Attorney.  Attorney represented Green in her divorce from Gold.  Paralegal did substantial work on the Green file.

Paralegal has a new job.  Now, Paralegal works for Lawyer.  Lawyer represents Gold.

A post-judgment issue has arisen between Green and Gold. Which is most accurate under the Vermont Rules of Professional Conduct?

  • A. Paralegal’s conflict is imputed to Lawyer.  Lawyer is disqualified, unless Green gives informed consent, confirmed in writing.
  • B. Paralegal’s conflict is not imputed to Lawyer, but Paralegal should be screened from the Green & Gold matter.
  • C. Nothing in the Rules of Professional Conduct addresses this situation.
  • D.  Go Cats Go!

Question 2

Lawyer knows that she has earned a portion of the funds that she is holding in her trust account.  She intends to reconcile the trust account & withdraw the earned fees as soon as she can get around to it.  Work is busy.

Although the word does not appear in the Rules of Professional Conduct, what is the common name used to describe Lawyer’s violation of the Rules?

Question 3

Rule 1.6(a) prohibits a lawyer from disclosing information relating to the representation of a client without the client’s informed consent or unless the disclosure is impliedly authorized to carry out the representation.  Rule 1.6(c), however, permits disclosure of otherwise protected information “to establish a claim or defense . . . in a controversy between the lawyer and the client [OR] to respond to allegations in any proceeding concerning the lawyer’s representation of the client.” Rule 1.9(c) operates to apply Rule 1.6 to former clients.

Former Client (“FC”) posted a negative online review of Lawyer on Yelp.  Lawyer intends to reply with a post that would include information covered by Rule 1.6(a).  Most courts and bar associations that have addressed the issue have concluded that:

  • A. FC’s post impliedly authorizes Lawyer’s reply;
  • B.  FC’s post is a “controversy”, thus Rule 1.6(c) authorizes Lawyer’s reply;
  • C.  Given the nature of social media, FC is deemed to have given informed consent to any potential reply;
  • D.  Lawyer’s reply would violate Rule 1.6(a).

Question 4

Attorney calls me with an inquiry.  I listen, then reply: “the Comment to the rule is clear: your representation that you’re required to do so should be sufficient.  You shouldn’t have to say anything more.”

I’m looking for a rather specific answer here: what type of pleading did Attorney call to discuss?

Question 5

The week started with President’s Day, so I’ll finish with this:

Of all the lawyers who have argued cases before the United States Supreme Court, only seven (7) were either a past or future President of the United States.  Name the last lawyer who was either a past or future President to argue a case before the US Supreme Court.






Monday Morning Answers

Happy Presidents’ Day!  Interesting tidbit (or maybe not):  the first President to have a law degree?  Rutherford B. Hayes.  Several of his presidential predecessors were lawyers, but none went to law school.

Ok, if you want to take Friday’s quiz, go HERE.  Spoiler alert: the answers immediately follow the list of those who received honors this week.

Oh, and if you missed my post on the perils of using “cc” and “bcc” in emails, it’s HERE.


  • Andrew Delaney, Martin & Associates
  • Matthew Little, Law Offices of Matthew Little
  • Hal Miller, First American
  • Josh Stern, Law Office Study Candidate, Massucco Law



Question 1

You represent co-plaintiffs in a civil suit.  The defense proposes an aggregate settlement of your clients’ claims. By rule, you shall not participate in the settlement unless each client:

  • a. Gives informed consent
  • b. Gives informed consent, confirmed in writing.  Rule 1.8(g).
  • c. Is given a reasonable opportunity to seek independent legal advice
  • d.  A&C

Question 2

True or False? The rule on aggregate settlements applies only in civil cases.  In criminal cases, a lawyer may not participate in an aggregate agreement as to guilty or nolo pleas.

FALSE – Rule 1.8(g)

Question 3

By rule, what is it that a lawyer may not do with an unrepresented former client, unless the former client is given written notice of the desirability of seeking independent legal advice, and a reasonable opportunity to do so?

Settle a claim or potential claim for malpractice.  Rule 1.8(h)

Question 4

Lawyer called me to ask if I thought he had a conflict of interest that prohibited Lawyer from representing Wife in a post-judgment child support dispute with Husband. Lawyer explained why he was asking.  I responded by telling Lawyer that it turned on whether his prior particapation in the matter was “personal and substantial.”  If so, I added, he’d need both Wife AND Husband’s informed consent, confirmed in writing.

Under these facts, Lawyer’s prior participation in the matter was most likely as:

  • A.  a fact witness in the couple’s contested divorce hearing
  • B.  the mediator when the couple attempted to mediate the divorce.  Rule 1.12(a)
  • C.  Husband’s attorney in a criminal case that Wife argues warrants a modification of the child support order
  •  D.  a GAL for the couple’s son in the divorce

Question 5