Was that Wrong? Tomfoolery and a career marked by a consistent inability to comply with the ethics rules.

It’s rare that a court appearance results in a transcript that, when presented without indicia of being an official record of a judicial proceeding, might pass for comedy.  Whether an Abbot & Costello routine of yesteryear, or a Charlie-scene in the most recent episode of It’s Always Sunny in Philadelphia.

Today’s story brings us one of those rare moments.

But first . . .

. . . Was That Wrong? is a semi-regular column on Ethical Grounds. The column features stories of the absurd & outrageous from the world of legal ethics and attorney discipline. My aim is to highlight misconduct that I hope you’ll instinctively avoid without needing me to convene a continuing legal education seminar that cautions you to do so.

The column is inspired by the “Red Dot” episode of Seinfeld. In the episode, George Costanza has sex in his office with a character known only as “the cleaning woman.”  His boss finds out.  Here’s their ensuing exchange:

(Scene) In the boss’ office.

  • Boss: I’m going to get right to the point. It has come to my attention that you and the cleaning woman have engaged in sexual intercourse on the desk in your office. Is that correct?
  • George: Who said that?
  • Boss: She did.
  • George: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, you know, because I’ve worked in a lot of offices and I tell you people do that all the time.
  • Boss: You’re fired.
  • George: Well, you didn’t have to say it like that.

The full script is HERE.  The scene is HERE.

This morning, I stumbled across an article that ran in the Baltimore Sun earlier this month.  As bar counsel, a basketball fan, and a lawyer who appreciates court opinions that cite to pop culture, the headline caught my eye:

Reflexively, I clicked.

As a basketball fan who went to law school in D.C., I’ve often wondered what happened to the rabid Washington Bullets fan whose incessant heckling of visiting teams secured him some level of fame.  I now have my answer.

In this opinion, the Maryland Court of Appeals disbarred him.

The opinion and the Sun article recount the story far better than I’ll be able to.  The twists, turns, and continual “it can’t get any crazier . . . oh, wait, it just got crazier” are well worth the read.  Still, a few thoughts.

I’ve read my fair share of disciplinary opinions.  It’s not uncommon to want to skip to the end to learn the result.  The Maryland court immediately quashed any interest in missing even a single sentence with this opening line:

  • “While a missed court date by an over-scheduled attorney who relies on office staff to meet the demands of a busy schedule or a good-faith fumble in the filing of a continuance motion would not ordinarily result in disbarment, the circumstances of [the lawyer’s] cases are far from typical.”

Interest piqued, I continued reading.

As I did, I noted statements that aren’t common in disciplinary opinions.  For instance, the court’s observation that the lawyer’s “lengthy disciplinary history since his admission may be unique in the annals of the bar.”  And the court’s remark that the lawyer, over the course of a lengthy career, “may have the unique distinction of having violated three iterations of the rules of professional conduct.”  By then, which was only page 3, I knew we had a potential Was that Wrong? on our hands.

Anyhow, after the court laid out the lawyer’s significant disciplinary history, it turned to the most recent charges.  Here’s what happened.

The lawyer was double-booked in two different courts.  So, the lawyer asked his assistant to file a motion to continue one of the scheduled cases.  The assistant – who was disbarred himself in 2013 – prepared the motion, signed the lawyer’s name, and filed it.  The motion included a statement that opposing counsel, Mr. Palisano, had no objection.  Alas, Attorney Palisano had left opposing counsel’s office months prior.

Understandably, the trial judge wanted an explanation. Eventually, the lawyer appeared. The ensuing exchange is what reminds me of a comedy routine.  It has all the hallmarks of the confusion that Charlie causes on Sunny. It also resulted in the lawyer being charged with making a false statement to the trial court.  Here’s how I envision the screenplay:

*********

Court: We’re going to get right to the point. It has come to our attention that you simply cannot comply with the ethics rules.  We’ve sanctioned you numerous times over the years and now this:  you weren’t exactly candid with the trial court when it asked about the motion that your disbarred assistant filed after signing it as you.

Lawyer: Who said that?

Court:  Well, you admitted to the trial court that you hadn’t signed the motion, but only after this exchange:

  •  TRIAL JUDGE: Sir we received your written motion by consent to continue this matter this morning. Is that right?
  • LAWYER: I believe – that’s what my office manager told me, Judge. He is now in the hospital.
  • TRIAL JUDGE: But this motion is signed by you, Sir.
  • LAWYER: Yes, it is.
  • TRIAL JUDGE: You’re counsel of record in this case?
  • LAWYER: No question about it.
  • TRIAL JUDGE: Correct?
  • LAWYER: Absolutely.
  • TRIAL JUDGE: You signed – you signed this motion though, Sir, instead, that’s what – is this your signature?
  • LAWYER: My name is on it, but my officer manager who’s been my office manager for 10 years.
  • TRIAL JUDGE: Sir?
  • LAWYER: Yes.
  • TRIAL JUDGE: Are you representing to this Court that you did not sign this motion, you had – you authorized someone who is not a member of the bar to sign this motion?
  • LAWYER: I’m saying I signed it, but I didn’t know that – I didn’t talk to Mr. Palisano, I didn’t know that Mr. Palisano’s name was in it, and . . .
  • TRIAL JUDGE: How could you not know if you’re signing it?
  • LAWYER: Mr. Palisano’s name was not in it when I signed it.
  • TRIAL JUDGE: When you signed it?
  • LAWYER: That’s right.
  • TRIAL JUDGE: So, you’re saying this document was altered after you signed it, Sir?
  • LAWYER: No, I’m not saying that. I’m just saying I did not sign anything that had Mr. Palisano’s name in it.
  • TRIAL JUDGE: So, are you saying that this is not your signature on the motion?
  • LAWYER: May I see it again?[1]

 Lawyer: Was that wrong?  Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, you know, because I’ve worked in a lot of offices and I tell you people do that all the time.

Court: Disbarred.

Lawyer: Well, you didn’t have to say it like that.

***********

As always, be careful out there.[2]

costanza

[1] In real life, on the day after the hearing on the motion to continue, the lawyer’s assistant sent a letter to the trial court apologizing for making a mistake when using an old “template” motion.  He stated that he filed it in a rush, having just left the hospital against doctor’s orders after arriving for a routine exam only to be told that he required an emergency amputation. You can’t make this stuff up.

[2] The Shakespeare quote?  Referring to the lawyer’s prior disciplinary history and its relevance to the decision to disbar, the Maryland court wrote “It has been said that ‘what’s past is prologue,’” a line from Act II, scene 1 of The Tempest.

Prior Was that Wrong? posts:

Prior Entries:

Monday Morning Honors & Answers: #249

When I woke up, I wasn’t certain whether it was Monday or January.  I’m still not.  Oh well.

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

Honor Roll

  • Karen Allen, Karen Allen Law
  • Matthew Anderson, Pratt Vreeland Kennelly Martin & White
  • Evan Barquist, Montroll Oettinger Barquist
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, University of Illinois at Chicago Law
  • Andrew Delaney, Martin Delaney & Ricci
  • Heather Devine, Tarrant Gillies Shems
  • Rick Fadden, Barry Callebaut, Blogger’s Stoolmate
  • Robert Grundstein
  • Anthony Iarrapino, Wilscheck & Iarrapino
  • Glenn Jarrett, Jarrett & Luitjens
  • Elizabeth Kruska, Immediate Past President, Vermont Bar Association Board of Managers
  • Deb Kirchwey, Law Office of Deborah Kirchwey
  • Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
  • Pam Loginsky, Deputy Prosecuting Attorney, Pierce County, Washington
  • Kevin Lumpkin, Sheehey Furlong & Behm
  • 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.
  • Margaret Olnek, Divorce Coach; Assistant Professor, Vermont Law School
  • Lisa Penpraze, Assistant United States Trustee, Department of Justice
  • Jim Remsen, Lord Microstrain, Blogger’s Stoolmate
  • Keith Roberts, Darby Kolter & Roberts
  • Stephanie Romeo, Ryan Smith & Carbine
  • Jonathan Teller-Elsberg, Sheehey Furlong & Behm
  • Honorable John Valente, Vermont Superior Judge
  • Jason Warfield, J.D.
  • Thomas Wilkinson, Jr., Cozen O’Connor

 ANSWERS

Question 1

At a CLE later today, I’ll urge lawyers to set reasonable expectations with clients at the outset of the representation. I’ll also remind them that a lawyer’s duty is to provide candid legal advice, even if it’s advice that the client doesn’t want to receive.

During that portion of the seminar, which 2 of the 7 Cs of legal ethics will I mention?

I confess, the two I had in mind were Communication and Competence.  However, several readers mentioned “candor,” so I’ll accept that as well.  As I blogged here, I’m of the opinion that a lawyer’s duty to communicate sufficient information to allow the client to make informed decisions includes setting reasonable expectations at the outset of the representation.  And, as I blogged here, I’m also of the opinion that the duties of competence and communication include providing candid legal advice.  See, Rule 2.1 – Advisor.

Question 2

 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 duty bound to report another attorney to disciplinary authorities.
  • B.  represents an organization. Rule 1.13 – Organization as Client
  • C.  is being paid by someone other than the client.
  • D.  has a side business painting houses.

Question 3

Prospective Client wants to retain Lawyer for representation in a divorce from Spouse.  Spouse’s business deals will be a significant issue in the divorce.  Lawyer’s paralegal used to work at the law office that is representing Spouse.  While there, Paralegal participated personally & substantially on legal matters related to Spouse’s business deals.

Under Vermont’s rules, what’s most accurate?

  • A.  Lawyer may not represent Prospective Client. Paralegal has a conflict and it’s imputed to Lawyer.
  • B.  Lawyer may represent Prospective Client.  Prospective Client knows all about Spouse’s business deals.  Therefore, there’s no risk that Paralegal will share confidential information.
  •  C.  Lawyer may represent Prospective Client, but only if  Spouse gives informed consent, confirmed in writing.
  • D. Lawyer may represent Prospective Client.   Paralegal’s conflict is not imputed to Lawyer.  So that Paralegal does not share any confidential information about Spouse, Lawyer should screen Paralegal from any involvement in the divorce.  Rule 1.10 – Imputation of Conflicts of Interest – General Rule.

Question 4

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

  • “Notice should come from you and the firm. A few years ago, the ABA issued an advisory ethics opinion that stated that it’s preferable to issue a joint notice.  The notice should go to all clients who deal (or who have dealt) directly with you.  What the clients do after that is up to them.”

Given my response, what will Attorney be doing soon?

Leaving the firm.  See my blog posts Leaving a Law Firm – Breaking up is hard to do & Leaving a Law Firm – Update.

Question 5

 I rarely take requests for Question 5.  However, I was recently sitting at McGillicudy’s when Rick, a non-lawyer friend and fellow stool sitter, mentioned that he’d tried a recent quiz and hadn’t gotten any right.  I replied that he shouldn’t because he’s not a lawyer!  Then, my brother told him to try another quiz, but only to worry about Question 5.

Still, I was surprised.  We were sitting in our regular bar talking, however briefly, about legal ethics and professional responsibility?!?!  The word is spreading!  So, I asked Rick his favorite fictional lawyer and promised to dedicate Question 5 to that lawyer.  Rick replied something to the effect “it’s ironic that on an ethics quiz you’ll basically be telling me the answer ahead of time!”

Aha! I did no such thing! I asked his favorite fictional lawyer. I never said that lawyer would be the answer to Question 5!

How lawyerly of me to ruin the moment.

Anyhow, Rick’s favorite fictional lawyer is Seinfeld’s Jackie Chiles.  So, without further ado, here’s to Rick!

In an episode of Seinfeld, Kramer retains Jackie Chiles to sue a woman who Kramer alleges caused him to crash his car.  Here’s a snippet of one of their conversations:

Kramer: And she’s the heir to the ________ candy bar fortune.
Jackie Chiles: Could you repeat that?
Kramer: I said she’s the heir to the ________ candy bar fortune.
Jackie Chiles: _________? That’s one of our top-selling candy bars. It’s got chocolate, peanuts, nougat. It’s delicious, scrumptious, outstanding!

Later, at trial, things go awry after Kramer, on the advice of Stam (a golf caddy) and over Jackie’s objections, asks the judge to order the woman to try something on.

Fill-in-the-blank:  what candy bar?

Bonus:  what did the judge order the woman to try on?

Of course, this was Sue Ellen Mischke, heiress to the Oh Henry! candy fortune.  The judge ordered her to try on a bra, which didn’t fit.  Leading to this exchange and today’s bonus quote from Jackie Chiles:

Judge: This court will come to order. Go ahead, Miss Mischke, try it on.
Sue Ellen: It doesn’t fit. I can’t put it on.
Jackie Chiles: [to Kramer and Stan] Damn fools! Look at that! We got nothing now! Nothing! I’ve been practicing law for 25 years, you’re listening to a caddy! This is a public humiliation! You can’t let the defendant have control of the key piece of evidence. Plus, she’s trying it on over a leotard. Of course a bra’s not gonna fit on over a leotard. A bra gotta fit right up a person’s skin. Like a glove!

Jackie_Chiles_in_The_Maestro_Seinfeld

Five for Friday #249

Welcome to Friday and the 249th legal ethics quiz!

You know what?  249 isn’t 250.  It’s nowhere near as interesting, exciting, or motivating.  In fact, last night, while looking forward to next week’s milestone, I wondered if I’d even find the inspiration to post today.

I like to recognize occasions.  So much so that I tend to lose track of what happens leading up to them.  And by “lose track,” I mean that I often get so caught up in what I consider to be a notable event, occasion, or milestone, that I don’t enjoy the moments along the way.

That’s not good.  Too often, I miss too much.  Especially when, as can happen, the occasion doesn’t match the anticipation and leaves me regretting what I missed leading up to it.

So therein lies my challenge with the introduction to Quiz 249.  Again, 249 ain’t 250. But you know what?  I can’t celebrate #250 without posting #249 first.  So, last night, I resolved to find something about this moment.

I’m training for a marathon.  My current schedule calls for speed work on Thursdays and long runs on Saturdays. For each, I look forward to both the challenge and the sense of accomplishment upon completion.  To me, speedwork and long runs are events, occasions worth noting.

Friday runs? Not so much. Right now, Fridays are “recovery runs.”   Runs that aren’t fast or long.  They’re necessary, but boring.  There’s literally nothing remarkable about them.

But maybe that’s the wrong way to approach them. Maybe the challenge of training for the marathon is to find something special in each and every run.  After all, marathon day can go bad quickly.  So why measure success or appreciation for what happened by the race result instead of by the rewarding moments throughout the training process?

Here’s why.

Because I’m not much into mumbo jumbo about journeys, destinations, and smelling roses.

Still, today, I tried.

Yesterday was 8 miles with speed work mixed in.  It was one of my best workouts in a while.  Tomorrow, I hope to run more than 20 miles, the longest run of the training cycle so far.  Today?  The plan called for a whole lot of “not much.”  Not exactly an occasion.  Plus, between having to drop my car off at the garage this morning and today’s work schedule, there wasn’t much time for a run.  Especially one that didn’t interest me. So, I considered skipping it altogether.

But I didn’t.

Instead of dropping off my car and then hopping the bus to work, I brought it over early and ran home.  Why? To make an otherwise boring “short” run interesting: to turn it into an occasion.  So, nearing home, I focused on my GPS, weaving around the neighborhood, purposefully arriving in my driveway exactly at this moment:

249

Will today’s run make a difference on race day? Nope.  But it made a difference today.

Don’t get lost waiting for life’s 250s.  There are events, occasions, and opportunities in every moment, even the 249s.  Allow yourself to experience as many as you can.

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

 At a CLE later today, I’ll urge lawyers to set reasonable expectations with clients at the outset of the representation. I’ll also remind them that a lawyer’s duty is to provide candid legal advice, even if it’s advice that the client doesn’t want to receive.

During that portion of the seminar, which 2 of the 7 Cs of legal ethics will I mention?

Question 2

 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 duty bound to report another attorney to disciplinary authorities.
  • B.  represents an organization.
  • C.  is being paid by someone other than the client.
  • D.  has a side business painting houses.

Question 3

 Prospective Client wants to retain Lawyer for representation in a divorce from Spouse.  Spouse’s business deals will be a significant issue in the divorce.  Lawyer’s paralegal used to work at the law office that is representing Spouse.  While there, Paralegal participated personally & substantially on legal matters related to Spouse’s business deals.

Under Vermont’s rules, which is most accurate?

  • A.  Lawyer may not represent Prospective Client. Paralegal has a conflict and it’s imputed to Lawyer.
  • B.  Lawyer may represent Prospective Client.  Prospective Client knows all about Spouse’s business deals.  Therefore, there’s no risk that Paralegal will share confidential information.
  •  C. Lawyer may represent Prospective Client, but only if  Spouse gives informed consent, confirmed in writing.
  • D.  Lawyer may represent Prospective Client.   Paralegal’s conflict is not imputed to Lawyer.  So that Paralegal does not share any confidential information about Spouse, Lawyer should screen Paralegal from any involvement in the divorce.

Question 4

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

  • “Notice should come from you and your firm. A few years ago, the ABA issued an advisory ethics opinion that stated that it’s preferable to issue a joint notice.  The notice should go to all clients who deal (or who have dealt) directly with you.  What the clients do after that is up to them.”

Given my response, what will Attorney soon be doing?

Question 5

 I rarely take requests for Question 5.  However, I was recently sitting at McGillicudy’s when Rick, a non-lawyer friend and fellow stool sitter, mentioned that he’d tried a recent quiz and hadn’t gotten any right.  I replied that he shouldn’t, because he’s not a lawyer!  Then, my brother told him to try another quiz, but only to worry about Question 5.

Still, I was surprised.  We were sitting in our regular bar talking, however briefly, about legal ethics and professional responsibility?!?!  The word is spreading!  So, I asked Rick his favorite fictional lawyer and promised to dedicate Question 5 to that lawyer.  Rick replied something to the effect “it’s ironic that on an ethics quiz you’ll basically be telling me the answer ahead of time!”

Aha! I did no such thing! I asked his favorite fictional lawyer. I never said that lawyer would be the answer to Question 5!

How lawyerly of me to ruin the moment.

Anyhow, Rick’s favorite fictional lawyer is Seinfeld’s Jackie Chiles.  So, without further ado, here’s to Rick!

In an episode of Seinfeld, Kramer retains Jackie Chiles to sue a woman who Kramer alleges caused him to crash his car.  Here’s a snippet of one of their conversations:

Kramer: And she’s the heir to the ________ candy bar fortune.
Jackie Chiles: Could you repeat that?
Kramer: I said she’s the heir to the ________ candy bar fortune.
Jackie Chiles: _________? That’s one of our top-selling candy bars. It’s got chocolate, peanuts, nougat. It’s delicious, scrumptious, outstanding!

Later, at trial, things go awry after Jackie asks the woman to try something on and it doesn’t fit.

Question 5 is a fill-in-the-blank:  what candy bar?

Bonus:  what did Jackie ask the woman to try on?

Monday Morning Honors #242

Merry Monday!

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

And speaking of honors, congrats to those who read this post and who knew that a Gestetner is a type of copying machine.  Ah, the sweet smell of the old days!

Honor Roll

 

Answers

Question 1

 A comment to one of the Rules of Professional Conduct addresses “gifts to lawyers.”  Per the comment, can a lawyer ethically accept a gift from a client?

  • A.  No.
  • B.  Yes, but only if the client’s matter has ended and the client is a “former client.”
  • C.  Yes, if the transaction meets general standards of fairness.  V.R.Pr.C. 1.8, Comment 6.
  • D.  It doesn’t matter what the comment says. No client would ever give a gift to a lawyer.

Question 2

 True story: my microphone wasn’t working too well during a CLE I presented via Zoom this morning.  I didn’t discuss this issue during the CLE, but let’s pretend that I did.

Due to a bad mic, attendees would’ve heard the following clipped phrase: “significant risk . . . responsibilities to another client or former client . . . materially limits the representation.”

What concept was I discussing?

Conflicts of Interest.  Specifically, a concurrent conflict of interest as defined by V.R.Pr.C. 1.7(a)(2).

Question 3

Fill in the blank.

“A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly __________.”

  • A.  destroy the document.
  • B.  segregate the document.
  • C.  return the document to the sender.
  • D.  notify the sender.   

 The question uses the exact language of V.R.Pr.C. 4.4(b).  Comments 2 and 3 are important.  Also, please review my post Duties Associated with Inadvertent Receipt & Production.

 Question 4

 This one might be too difficult.  But, as a reward to the lawyers who sat through the trust accounting seminar that I did for the VBA’s Bankruptcy Section this morning, here it is:

Lawyer called me with an inquiry.  I replied “they escheat to the state. Check out the State Treasurer’s website for more information.”

Using context clues, what does “they” refer to?

Abandoned trust funds.  Meaning, the lawyer knows who the funds belong to, but cannot locate the person.

Question 5

Family gatherings can make for the best holiday stories!

I’ve referenced many television shows on this blog. Perhaps none more than a 90s sitcom.

There’s an episode in which much of the action takes place at the home of one of the main character’s parents, where everyone has gathered to celebrate a holiday.  In real life, the holiday falls on December 23.

A particular item is integral to celebrating the holiday.  One of the main character’s relatives is a big fan of the item. He likes it because it doesn’t require any decorations, isn’t as distracting as tinsel, and the aluminum has an amazing strength-to-weight ratio.

Question:            Name the holiday and the item.

Bonus:                 I mentioned Christmas cards in the introduction.  Well, in the same episode, the haracter whose family hosted the celebration gave out holiday cards in which he invited recipients to donate to a charity.  Name the charity.

The show is Seinfeld, the holiday is Festivus, and the itme is George’s father’s Festivus Pole.

 George’s fake charity:  The Human Fund (Money for people)

 Congrats to the Honor Roll member who is a verified donor and who sent me this picture:

 IMG_4091

 We are everywhere!

Five for Friday #241: Sporcle & Prime Numbers

Welcome to Friday and the 241st legal ethics quiz.

I’m way behind today!  And what I’m about to share is probably a story that should remain untold.  So, a good idea would be to skip straight to the quiz.

But where would the fun be in that! Not to mention, I’m in the mood to write and I’m struck by a story that, in a way, incorporates “241.” It’s the story of a strange fascination and an epic fail.

Earlier this week, I posted on the health benefits and importance of awe.  For whatever reason, I’m fascinated by number theory. Every now and then I try to learn more about it. Whenever I do, I’m awed by the mathematical knowledge of people who lived thousands of years ago.  It’s crazy to me that they were able to figure out the things that they did.

Anyhow, the study of prime numbers is a basic component of the field of number theory. Until recently, I thought I had a solid grasp of its fundamentals. So, it was with much confidence that I hit “start” on a 1-minute Sporcle quiz that challenged the brave to click on as many prime numbers as possible without clicking a non-prime.

My first click?  “1.”

The game ended. My score was 0%.

Hold up.  Something must be off.  My mouse must not have been on the “1.”  NBD. I’ll play again.

Again, first click, “1.”

Again, 0%.

Ok.  Now things aren’t just “off.”  Sporcle must be broken.  What a pain.  Whatever.  I’ll try once more.  This time, I’ll click very deliberately and slowly on “1”, to help Sporcle properly register my answer.

The third time wasn’t the charm.  Another 0%.  And it made me mad!

After all, I’m a budding number theorist! I mean, I’m aware that I went to public school and had to retake calculus my freshman year in college.  But it’s not like I never took any math.  Even I know that a prime number is a number that is evenly divisible by both 1 and itself.  And, while perhaps too lawyerly of an argument, it’s beyond dispute that 1 is evenly divisible by both 1 and itself.  Therefore, it’s a prime number.

Still, I didn’t play again.  Why waste my time with a stupid game that didn’t know what it was talking about? Instead, I googled “prime numbers,” eagerly anticipating finding the proof I’d need to cut & paste into a snarky email to Sporcle.

Most of you know what happened next.  Because you’re smarter than I.

The truth I sought doesn’t exist.  As it turns out, 1 is not a prime number.

Wait What

Apparently, a prime number is any number that is evenly divisible by both 1 and exactly one other whole number. Or, as stated in Scientific American,

  • “the reason for 1 not being considered prime is the fundamental theorem of arithmetic, which states that every number can be written as a product of primes in exactly one way. If 1 were prime, we would lose that uniqueness. We could write 2 as 1×2, or 1×1×2, or 1594827×2. Excluding 1 from the primes smooths that out.”

Umm, yeah. Leave me alone.

Armed with my new knowledge, a rational next step would’ve been to return to Sporcle, start the quiz anew, and not click on “1.” Instead, I did what any self-respecting Seinfeld fan would’ve done upon learning that it wasn’t Sporcle, it was me:  I broke up with Sporcle.  Maybe I should dump number theory too.  After all, when it comes to improving my wellness via intellectual growth, I might do best by sticking to my commitment to learn how to make bread.

Anyhow, how’s all this connect to “241?”

Via my new mnemonic.

If I ever find myself in a trivia contest that challenges players to identify the lowest prime number, I’ll remember to substitute 2 for 1.

241.

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 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

I often refer to the 7 Cs of Legal Ethics.  Professor Alberto Bernabe, a regular member of the Honor Roll, uses a similar construct.  He suggests that students in his Professional Responsibility class remember the “bad grades.”  That is, the Cs, a D, and an F.

Professor Bernabe’s Cs are the same as mine.  The “F” is for “fiduciary.”

What duty does the “D” stand for?

Question 2

Prospective Client contacted Lawyer seeking representation in a matter in which Prospective Client’s interests are materially adverse to the interests of one of Lawyer’s former clients.  The new matter is substantially related to the matter in which Lawyer represented Former Client.  However, Lawyer does not remember anything about the representation of Former Client and no longer has access to the file.

Which is most accurate?

  • A.  Because the matters are substantially related to each other, Lawyer is presumed to have received confidential information from Former Client.
  • B.  Because the matters are substantially related to each other, Former Client will not be required to disclose confidences in order to protect them.
  • C.  A & B.
  • D.  Whether Lawyer can represent Prospective Client necessarily turns on how long ago the representation of Former Client ended.

Question 3

Lawyer called me with an inquiry. I listened, then replied: “I wouldn’t call without permission. I understand your point about the matter not yet being in litigation. But the rule isn’t limited to matters that are in litigation. It applies to any matter.”

What’s the topic of the rule I referenced?

Question 4

What type of conflict is less likely to be imputed to other lawyers in the same firm as the conflicted lawyer?

  • A.  a conflict between a former client & current client
  • B.  a conflict between current clients
  • C.  a conflict arising from a personal interest of the disqualified lawyer
  • D. Trick question.  In VT, all conflicts are imputed to others in the same firm.

Question 5

Some people like question 5 to be about pop culture. Others don’t.  Today, and in the spirit of the holidays, it’s a bit of both.

Rule 1.2(d) prohibits a lawyer from assisting or advising a client to commit a crime.  The rule draws no distinction between state & federal crimes or between crimes that the government enforces more or less vigorously than others.  As such, the rule used to cause concern for Vermont lawyers representing clients involved in a particular industry.  So much concern that, several years ago, we amended the rule.

As amended, a new comment clarifies that a lawyer may assist and advise a client on the scope, validity, and meaning of Vermont law that governs a particular product, as long as the lawyer also advises the client as to the potential consequences of the conduct under federal law and policy.

Question:            What industry or product?

Bonus:  Name the celebrity whose famous holiday song uses the product in a rhyme with the holiday.

Double Bonus:   Name the other product that the same celebrity uses to rhyme with both the holiday and the first product in one version of the song.  The second product isn’t associated with Rule 1.2(d) or assisting/advising a client to violate a crime, although perhaps it was during prohibition.

Wellnes Wednesday: yes, wellness includes the results of this blog’s first ever moot court competition.

Wellness is a big tent.

Does it include understanding that it’s okay to reach out to the Bar Assistance Program?  Does it include prioritizing wellness within the profession’s workplaces?  Does it include CLEs on recognizing the signs of burnout?

Yes.

It includes all the serious issues associated with making the profession healthier.  Issues that I’ve blogged and spoken about for years.

But, today, I need a break.  Because wellness is also personal.  And, personally, beating the drum isn’t always what’s best for me.  My wellness includes finding the occasional harmless fun at the intersection of the law, legal ethics, and pop culture.

There’s nothing about this blog (and my job) that I enjoy more than reader responses to the Friday columns and quizzes.  Last Friday, I shared the story of the man who joined a search party that was trying to find himself.  Upon realizing that he was the “missing” person for whom the searchers were calling, the man replied, “I am here.”  Among others, BBC News and Sky News reported the story.

Melding the story with Seinfeld, I created the following scenario:

  • Kramer is the “missing” person.
  • Newman organizes the search party and posts a reward for whoever finds the missing Kramer.
  • George joins the search party, dutifully hollers “Kramer,” and is the person to whom Kramer responds, “I am here.”
  • George claims the reward.
  • Newman refuses to pay, insisting that Kramer was never missing and found the search party.

Then, with Rule 3.1 of the Vermont Rules of Professional Conduct in mind, I challenged contestants to make their best non-frivolous arguments on behalf of either George or Newman.

Your replies made me smile and laugh.  So much so that as I drafted this post yesterday morning, I decided to save it for today, realizing that the smiles and laughs were wellness.

Many thanks to all who submitted replies!  Not one took more than a few seconds to read, but each made my day a brighter place. In reverse order of receipt and under headings that capture what made me a fan, here are my favorites.

Wellness

*****

I’m a sucker for Latin phrases – and even Newman deserves representation.

No contract was formed due to lack of a condition precedent—Kramer was never missing. Therefore, the contract is void ab initio. Neumann cannot pay any reward in this case.

I’m a huge fan of both honesty and brevity.

No time to do an argument for George, but I think he should get the reward.

The internal reference to an actual Seinfeld episode is gold!

I think George should get the reward.  Newman was clearly convinced that Kramer was missing or else he would not have formed a search party.  Once he reached that mental conclusion, in his mind he was prepared to issue the reward and his claiming that Kramer was never missing is disingenuous.  Although George knows Kramer, he had no role of interfering with Newman’s process and determination of concluding that Kramer was missing or that a reward should be issued for finding him.  George may have known that Kramer was in the search party by recognizing him (and he had no obligation to point that out if he did see him which maybe he didn’t) and it was his action that “found” Kramer.  Therefore, George is entitled to the reward.  George should not be rewarded for using the system as it was organized and established to work.  But then again, in a just world (although certainly which Seinfeld is not given their narcissism and selfishness), the entire search party would split the reward as they are really the ones that found him.  If they shared the reward, maybe Newman could buy some soup for everyone.  As long as he knows what he wants when it’s his turn to order.

Bonus for writing as a lawyer.  Infinity bonus for the disclaimer. As disciplinary counsel, I had occasion to represent lawyers who, sadly, should’ve made the disclaimer a permanent part of their signature line.

I represent George.  My client, in good faith and in reliance on Newman’s offer of a reward, participated in the search and, had he not called Kramer’s name, Kramer would not have called out “I am here” when he did.  Thus, George’s actions (joining the search party and calling Kramer’s name) were the actual cause of Kramer being found when he was.  But for George’s actions, Kramer would not have been found when he was.  Newman’s conditional offer was accepted and acted upon by George, who fully performed his side of the contract by locating Kramer.  Newman must pay my client the reward.  Newman’s refusal to pay and his claim that Kramer was never missing is frivolous, both in law and in fact, and his attorney is in violation of the Rules of Professional Conduct.  Counsel’s claim that Kramer was not lost because “Kramer found the search party” is a blatant misrepresentation of the fact that Kramer responded to George’s call.  Thus, counsel’s factual claim is frivolous.  And counsel cites to no legal support for this theory.  Indeed, the well-established concepts of contract law render it clear that an offer was accepted and my client performed his part of the contract.  If Newman’s counsel is arguing that the meaning of “find” was ambiguous, any ambiguity must be resolved against the offeror.

(Disclaimer: Of course, this is not based upon actual legal research! Thus, whether my argument is frivolous is certainly in question!)

*****

If you’re still reading, there’s nothing wrong with having taken a minute to inject a bit of humor and entertainment into the workday.

Anybody who disagrees needs a bigger tent.

Wellness for all!

 

Five for Friday #236

Welcome to Friday, October, and the 236th legal ethics quiz!

As the days grow shorter, I’ve resolved not to waste daylight.  It’s bad enough that I waste the darkness watching the Red Sox strive to avoid the playoffs.  Anyhow, with my new resolution, I’ve no time for a lengthy introduction to this week’s quiz. Yet, I’d be remiss not to share a story shared with me by a friend, fellow attorney, and one of the first people to follow this blog.

As reported earlier this week by BBC News and Sky News, after drinking a bit, a Turkish man wandered off and joined a search party. Only to discover that the search party was looking for himself.  Upon realizing that he was the “missing” person for whom the searchers were calling, the man replied, “I am here.”

The story amuses me on many levels.

It’s not far-fetched to imagine myself, my brother, and some many of our friends and cousins starring in a similar production.  Further, I chuckle at the version in which the “missing” person, upon recognizing his name and still melancholy about not having had his turn at the karaoke mic before going missing, channels his inner Lionel Richie and warbles  “Hello . . . is it me you’re looking for?”

Most importantly, the story joins the Was That Wrong? series as a perfect prop to connect two of this blog’s most favorite topics:  Seinfeld and legal ethics.  And I will do so by challenging readers to the first Ethical Grounds Moot Court Competition.  Consider it an alternative for readers averse to the quiz. Here’s the scenario:

  • Kramer is the “missing” person.
  • Newman organizes the search party and posts a reward for whoever finds the missing Kramer.
  • George joins the search party, dutifully hollers “Kramer,” and is the person to whom Kramer responds, “I am here.”
  • George claims the reward.
  • Newman refuses to pay, insisting that Kramer was never missing and that it was Kramer who found the search party.

You may choose to advocate for either George or Newman.  With Rule 3.1 of the Vermont Rules of Professional Conduct in mind, make your best non-frivolous argument on behalf of your client.  If you submit an argument, it might find its way to this blog, albeit I promise without any identifying information included.

For all others, onto the quiz!

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

 A few days ago, I presented at the VBA’s Basic Skills seminar.  I shared with the new lawyers my 7Cs of Legal Ethics.  Here’s one of the questions:

Each of the following is related to which “C”?

  • The so called “self-defense” exception that is available to lawyers in certain situations.
  • The distinction between information that is “generally known” and information that is “public record.”
  • Safeguarding client information that is transmitted or stored electronically.
  • So-called “noisy” withdrawal from representing a client.

Question 2

 Attorney called me with an inquiry.  Attorney said “Mike, I represent Green in Green v. Yellow.   Lawyer represents Witness.  Witness is a fact witness, has nothing at stake in the dispute, and, obviously, isn’t a party.  So, I can contact Witness directly without Lawyer’s consent, right?

What was my response?

  •   A.  Right.
  •   B.  The rule is unclear.
  •   C.  It depends. Is Witness testifying for your client or for Yellow?
  •  D.  Wrong. The rule applies to any person who is represented in a matter

 Question 3

 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 the lawyer’s main contact on matters related to the representation.
  • C.  is a minor.
  • D.  asks the lawyer not to disclose to the other client information relevant to the common representation.

 Question 4

 Attorney called me with an inquiry.  I listened and responded, “your ethical obligation is to notify the sender that you received it.  Depending on the circumstances, the rules of civil procedure might impose additional duties.”

What did Attorney receive?

  • A.  information that Attorney knows or should know was inadvertently sent.
  • B.  a last-minute change to previously arranged wiring instructions.
  • C.  a subpoena to produce confidential information related to the representation of a current or former client.
  • D.  a request to meet with a prospective client with whom Attorney knows there exists a conflict of interest.

Question 5

 Keith Kasper frequently appears on the #fiveforfriday honor roll.  Keith is retiring at the end of the year.  A week ago today, I had the pleasure of stopping by Keith’s retirement party.  This week’s Question 5 honors Keith.

On January 31, 1970, a (still) well-known band played a concert in New Orleans.  Upon returning to their hotel, band members found police executing search warrants in their rooms.  Along with many others, the entire band was arrested on drug charges.

Low on money after posting bail, the band played a bonus show a few nights later to raise money to hire lawyers.  I can only assume that the lawyers performed competently, as all charges eventually were dismissed.

The experience inspired the band to write one of its most iconic songs.

Name the band.

Bonus: name the song.

 

Monday Morning Honors #231

Welcome to last Monday of the first half of the year.

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

Honor Roll

  • Karen Allen, Karen Allen Law
  • Evan BarquistMontroll, Backus & Oettinger
  • Penny Benelli, Dakin & Benelli
  • Andrew DelaneyMartin, Delaney & Ricci Law Group
  • Glenn Jarrett, Jarrett & Luitjens
  • John Leddy, McNeil, Leddy & Sheahan
  • Mick Leddy, McNeil, Leddy & Sheahan; President, Chittenden County Bar Association
  • Herb Ogden, Esq.
  • Keith RobertsDarby Kolter & Nordle
  • Jonathan Teller-Elsberg, Sheehey, Furlong & Behm
  • Rachel Trow, Shoup Evers & Green; Four-Year Law Office Study Program
  • The Honorable John Valente, Vermont Superior Judge
  • Jason Warfield, Candidate for Admission to the Vermont Bar
  • Thomas WilkinsonCozen O’Connor

Answers

Question 1

By rule, a lawyer shall not use information relating to the representation of a former client to the former client’s disadvantage.  One exception is when the information ______:

  • A.  has become generally known.  V.R.Pr.C. 1.9(c)(1).2
  • B.  is public record.
  • C.  Trick question.  There are 2 exceptions, and they are A & B.
  • D.  Trick question.  There are no exceptions.

Question 2

Consider the following:

  • must be in a writing that is signed by the client.
  • cannot be used for representing a defendant in a criminal case.
  • cannot be based on securing a divorce.

Here, we’re talking about:

  •   A.  Contingent Fees.  V.R.Pr.C. 1.5(c)
  •   B.  Flat Fees
  •  C.  An agreement to limit the scope of a representation
  •  D.  All the Above

 Question 3

There’s a rule that applies to “prospective clients.”   To qualify for the protections the rule affords, the prospective client must:

  1. Consult with the lawyer in good faith.
  2. Pay for the consultation.
  3. A & B.

This is V.R.Pr.C. 1.18.  Comment 2 explains the “good faith” requirement.

Question 4

Which is prohibited by the Rules of Professional Conduct?

  • A.  Accepting cryptocurrency as payment for legal fees.
  • B.  Accepting stock in the client’s company as payment for legal fees.
  • C.  Accepting payment of legal fees via mobile app like PayPal or Venmo.
  • D.  None of the above is a per se violation of the rules.

Question 5

Speaking of Giuliani . . .

. . . 1993, Giuliani had a cameo as himself in Seinfeld.  The episode included a fictionalized version of Giuliani’s campaign for mayor of NYC.  The plot focused on whether a restaurant had falsely marketed a particular food product as “non-fat.”  Due to a mishap caused by Kramer, a sample of Giuliani’s blood revealed high levels of cholesterol.  Giuliani, who had regularly frequented the restaurant, immediately promised voters an investigation into the potential fraud.  The controversy surrounding the falsely labeled food product swept him to victory.

Name the food product:  NON-FAT YOGURT.  Who can forget Elaine suggesting to Lloyd Braun that Mayor Dinkins run on a platform that everyone in NYC should wear nametags??  Yes, LLOYD BRAUN.

Bonus:  in 2021, Giuliani won Razzies for “Worst Supporting Actor” and “Worst Screen Combo” for his appearance in a movie.

Name the movie.  Borat Subsequent Moviefilm (aka “Borat 2”).

Giuliani

Conspiring to defraud the U.S. Government. Was that wrong?

This one left me stunned.  Even as the author of this column.

As most readers know, I’m a big fan of pub trivia.  The MVP on any pub quiz team is the person who can nail the “music round.”  A great tidbit of music trivia is that 10cc sang The Things We Do For Love. The relevant line today:

“You lay your bets and then you pay the price,

The things we do for love.”

First, and by way of background, Was That Wrong? is a semi-regular column on Ethical Grounds. The column features stories of the absurd & outrageous from the world of legal ethics and attorney discipline. My aim is to highlight misconduct that I hope you’ll instinctively avoid without needing me to convene a continuing legal education seminar that cautions you to do so.

The column is inspired by the “Red Dot” episode of Seinfeld. In the episode, George Costanza has sex in his office with a character known only as “the cleaning woman.”  His boss finds out.  Here’s their ensuing exchange:

(Scene) In the boss’ office.

  • Boss: I’m going to get right to the point. It has come to my attention that you and the cleaning woman have engaged in sexual intercourse on the desk in your office. Is that correct?
  • George: Who said that?
  • Boss: She did.
  • George: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, you know, cause I’ve worked in a lot of offices and I tell you people do that all the time.
  • Boss: You’re fired.
  • George: Well, you didn’t have to say it like that.

The full script is HERE.  The scene is HERE.

Now, onto today’s story.

I’m fairly confident that none of our judges has a spouse who will end up charged with federal crimes.

I’m as confident that those who do understand the risks of tampering with the government’s witnesses.

Finally, I’m even more confident that those who are removed from the bench for witness tampering in a spouse’s criminal cases will not later engage in an elaborate scheme to convince the Federal Bureau of Prisons that their convicted spouse is an alcoholic when, in fact, they know that their spouse is not.

This one also left me feeling naïve.

Who knew there were businesses that, for a fee, would help convicted persons learn to lie their way into prison programming that would help them gain early release?

The story comes via Bloomberg Law (sub. req.) and the Legal Profession Blog.  The relevant documents from the disciplinary case are here.  I urge you to scroll to the “agreed upon statement of facts.” It begins on page 18 of the PDF.

Anyhow, here’s how I envision the Was That Wrong? adaptation:

  • Court: We’re going to get right to the point. It has come to our attention that you and others conspired to get your wife into prison programming for which you knew she did not qualify?
  • Lawyer: Who said that?
  • Court: You did. When you pled guilty to conspiring to defraud the U.S. Government.
  • Lawyer: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, you know, cause I’ve worked in a lot of offices and I tell you people do that all the time.
  • Court: Disbarred.
  • Lawyer: Well, you didn’t have to say it like that.

Lay your bets indeed.

costanza

Prior Entries:

Five for Friday #180

Happy Friday!

So, 180.

As I pondered today’s post last night, my thoughts turned to “180 degrees” and how life would be completely different but for a single choice made somewhere along the way.  I considered a post in which I shared a decision I made that I wish I hadn’t.  One that kept me from travelling a different path that, looking back, I wish I was on.

I think we all have moments where we wonder if things would’ve turned out differently “if only I’d done THAT instead.”  Or, moments in which we chastise ourselves and lament “if only I could do it all over again.”  My sense is that many within the legal profession are nodding knowingly.

The point of today’s blog is to take the opposite approach.  To remember all the good in my life and to be thankful for the critical decisions (and people who helped me to make them) that led me down a path I’m fortunate to be on.  I’m no expert, but, to me, gratefulness is more likely to increase wellness than is regret.  So, I vow to do my best adopt an outlook that is 180 degrees different from “if only.”  That is, no matter what happens, to control what I can control: my approach to what happens next, with a positive approach far healthier than a negative.

And then I remembered something that I saw yesterday.

My office is across the street from Hen of the Wood.  The restaurant has been closed since August 6 due to a fire. I’m sure the owners wish the fire never happened.  But, it did and now all that they can control is their reaction.  I love their outlook.

First, check out the notice on their website.  The first two things that they want you to know? Zero damage and everyone was evacuated safely.  In other words, things to be grateful for.

More importantly (at least to a blogger whose posts regularly reference SeinfeldThe Office, and lyrics) check out the pictures that recently appeared in the large windows at Hen of the Wood.

First, we have an image The Fire episode of Seinfeld. It’s George Costanza shoving an elderly woman with a walker out of the way as he flees the small kitchen fire that started at his girlfriend’s son’s birthday party.  Alas, even before the embers had stopped smoking, George was Robin’s ex-boyfriend.

Seinfeld

Second, Dwight Schrute in The Fire episode of The Office.  The Assistant (to the) Regional Manager is proudly displaying the cause of the fire that required Dunder Mifflin employees to evacuate office: a pita that Ryan accidentally cooked on the toaster oven’s “oven” setting instead of “toast.”

Dwight

Finally, although not as easy to see, in a third window, Hen of the Wood hung a giant poster of the lyrics to Billy Joel’s We Didn’t Start the Fire:

Lyrics

The folks who manage Hen of the Wood had a few different ways to react to the fire that has left them closed for nearly three months. I applaud them for reacting in a way that, quite likely, is 180 degrees different than what I would’ve done.  Their gratefulness and humor are terrific reminders that while we can’t always control what happens to us, we can always control our reaction.

Onto the quiz!

Rules

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception – but one that is loosely enforced – #5 (“loosely” = “aspirational”)
  • 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
  • Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

Which lawyer will disciplinary counsel likely treat differently than the others?  A lawyer who:

  • A.   works for a contingent fee in a criminal case.
  • B.   fails to keep copies of his advertisements for at least two years.
  • C.   engages in “puffery” during negotiations with opposing counsel.
  • D.  deposits her own money in trust, but only in an amount necessary to cover bank charges that she knows will occur.

Question 2

Lawyer represents Brady in Brady v. Mayfield.  Lawyer knows that Mayfield is represented by counsel.

Lawyer answers a phone call.  It’s Mayfield.  Before Lawyer can react, Mayfield asks if Lawyer has a few minutes to discuss settlement.  Mayfield adds “i’m calling you directly because I’m trying to keep my legal bills down.  Once we resolve this, I’ll get with my attorney and have her write it up”

You may assume that Mayfield’s lawyer has not consented to Lawyer communicating directly with Mayfield.  Which is most accurate?

  • A.   Lawyer may negotiate with Mayfield.  The rule doesn’t apply when a represented party voluntarily initiates communication.
  • B.   Lawyer must immediately terminate the call.

Question 3

Rule 1.2(d) prohibits a lawyer from assisting a client to violate the law.  The rule draws no distinction between state and federal law.  As such, two years ago, Vermont adopted a comment to the rule.

The new comment makes it clear that Vermont lawyers can provide advice and assistance to clients as long as the lawyer (1) reasonably believes that the conduct in permitted under state law, and (2) advises the client of the potential consequences of the conduct under federal law.

The new comment is aimed at lawyers who assist clients on matters related to Vermont’s statutes, rules, and regulations on ____________________.

Question 4

Firm has long represented two clients:  A and B.   For years, Client A has worked with Lawyer, while Client B has worked with Attorney.

A intends to sue B.  Both A and B want their long-time counsel to represent them and, as such, are willing to waive the conflict.

Under Vermont’s rule, if A and B consent, can Lawyer and Attorney represent their long-time clients in A vs. B.?

  • A.  No.
  • B.  Yes, if each gives informed consent, confirmed in writing.
  • C.   Yes, if each gives informed consent, confirmed in writing and each is advised of the desirability of checking with outside counsel before giving consent.
  • D.  Yes, if each gives informed consent, confirmed in writing and Firm employs reasonable measures to screen A and B from access to each other’s files/client information.

Question 5

Today’s question is inspired by the lyrics posted in the window at Hen of the Wood.

This lawyer was 20 when he graduated from Columbia Law School. He had to wait until he was 21 to be admitted to the bar. Three years later, he gained national prominence for his role as an Assistant United State Attorney in the federal government’s prosecution of Ethel and Julius Rosenberg.

He parlayed that into a job as chief counsel to United States Senator Joseph McCarthy, where he joined Robert Kennedy as counsel on Senator McCarthy’s most well-known committee.

Later, after leaving McCarthy’s office, he had a long career in private practice. Among others, he represented Donald Trump’s business interests and the New York Yankees in litigation that followed the famous George Brett “Pine Tar” incident.

In 1986, the State of New York disbarred him for misappropriation of client funds, lying on his bar application, and pressuring a dying a client to change a will to leave the client’s fortune to himself (the lawyer).

People my age might have learned about him by listening to Billy Joel’s We Didn’t Start the Fire.

Name the lawyer.