Five for Friday #188

Welcome to Friday!

Those of you familiar with my disdain for winter — put your coffee down before reading further.

Today, I’m heading north.

That’s right, in a few short hours I’ll be on the road to Montreal for the VBA/YLD Thaw.  Later today, before Thaw Bowl VII, I’m moderating a panel on attorney wellness.

One of the points/questions that I intend to make/ask is that, as with many issues facing this profession, there are lots of little things that we can do each day to improve wellness.  Things that would never be the key recommendation of a study group, but things, nonetheless, that would make incremental improvement. And, after all, incremental improvement is improvement. Maybe that’s what study groups should recommend: small things, like making a difference one day and one starfish at a time.

Speaking of which, I think I found a small thing that would improve my own wellness and perhaps the state of mind of those who share my feelings toward winter.  It’s the damn weather app on my phone. Check this out:

View recent photos

Now, true care truth brings, I’ve never been confused with a tech guru or science guy.  But, I’ve heard of math. And I’m pretty sure that THERE IS NO SUCH THING AS NEGATIVE ZERO!  And my phone is still on Fahrenheit!

Would 0 or +0 make me happier about the runs I have planned in the city this weekend?

NO!

But that minus sign is an unnecessary twisting of the knife.  Fixing it would go a long way towards wellness for all.  Coders: sun lovers like me are your starfish. Save us one small step at a time.

By the way, given that the week’s number includes “88,” my mind drifts back to 2017 and a happier January trip. One that included hanging with Junior in Key West.

IMG_2015

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

Lawyer represents Client in Client v. Adversary.   Lawyer knows that Attorney represents Adversary.     Adversary calls Lawyer directly to discuss settlement.   Attorney has not consented to direct communication between Lawyer and Adversary.  Which is most accurate?  The no-contact rule:

  • A.  Does not apply because Adversary initiated the communication.
  • B.   Prohibits Lawyer from communicating with Adversary.
  • C.   Prohibits Lawyer from communicating with Adversary, unless Adversary is also a lawyer.
  • D.   None of the above is even close to accurate.

Question 2

Me: “Do not state or imply that you’re disinterested.  And, if you know that the person misunderstands your role, correct their misunderstanding.”

Given my statement, the “person” must be ______.

  • A.  adverse to lawyer’s client
  • B.  unrepresented
  • C.  a witness
  • D.  a juror

Question 3

Lawyer represents Client in Client v. Organization.   Lawyer knows that Attorney represents Organization.  Under the Rules of Professional Conduct, does Lawyer need Attorney’s consent to discuss the case with former employees of Organization?

  • A.   No.
  • B.    Yes.
  • C.  Yes, but only if they were part of the “control group.”
  • D.   Yes, unless their departure from Organization was involuntary.

Question 4

Lawyer drafted a will for Client.  Lawyer’s child benefits under the will.   For Lawyer to avoid a disciplinary prosecution:

  • A.   Client must be related to Lawyer’s child.
  • B.   Lawyer must be married to Client.
  • C.   Client must be an attorney.
  • D.  None of the above.  This is a violation no matter what

Question 5

Two weeks in a row!

Yes, I’m on my way to Canada.  But I’ll be back.  Mom – don’t worry. When I finally decide to move, I’ll tell you before I announce it on the blog.

Anyhow, Her Royal Highness the Duchess of Sussex was born in Canada. Later, she played a paralegal-turned-lawyer on a long-running tv show.  As I alluded to last week, she and Prince Harry recently caused a commotion in the Commonwealth by announcing their plans to leave England for Canada (and the U.S.)

Originally coined by a British tabloid, what is the one-word name that encompasses anything & everything related to the uproar over the Prince & Princess’s decision to depart Great Britain?

In litigation, be wary of the gift horse.

A few weeks ago, the Los Angeles County Bar Association’s Professional Responsibility and Ethics Committee issued Opinion 531.  The opinion addresses this question:

  • “In Litigation, What Are A Lawyer’s Ethical Obligations When Offered Evidence Retained By A Former Employee Of The Opposing Party Who Reveals That Relevant Documents Have Been Concealed From Production?”

The ABA Journal and Bloomberg Law reported on the opinion.

Here’s the scenario:

  • Lawyer represents Company in civil claim against Business.
  • Company contends that Business stole trade secrets from Company.
  • Former Employee of Business contacts Company.
  • Former Employee says that Business has withheld important documents and data from production.
  • Former Employee says that documents & data will establish that Business possesses and has used Company’s trade secrets.
  • Former Employee claims to possess electronic copies of the documents & data.
  • Company asks Lawyer to meet with Former Employee and take possession of the electronic copies.

And here’s an outline of the LA Bar Committee’s analysis:

  1. Lawyer must determine whether Former Employee lawfully possesses the data.  If not, and if Lawyer takes possession of it, Lawyer might be required to turn the data over to the appropriate authorities as evidence of a crime.
  2. Lawyer must determine whether the data constitutes information that Lawyer knows or should know is privileged or work product.  If so, Lawyer may not take possession of the data and must notify Business or its attorney.
  3. If Former Employee is not represented, Lawyer may communicate with Former Employee but must comply with the rule on dealing with unrepresented persons.
  4. Lawyer must consult with Company as to the means by which Lawyer will pursue Company’s objectives, including any limitations that the Rules of Professional Conduct place on Lawyer’s conduct.
  5. Lawyer may not advise or assist Company to violate the law or to gain unauthorized access to information that is privileged or work product, but may advise Company as to the consequences of Company’s proposal that Lawyer (and Company) take possession of the data.

Obviously, the opinion is based upon California legal authority, including various opinions from California courts & the state’s version of the Rules of Professional Conduct.  I’ve never dealt with this in Vermont and have not yet fully thought through my response if it were to happen here.

That being said, in my opinion, critical to the analysis is the fact that the data was not inadvertently produced.  As such, on its face, V.R.Pr.C. 4.4(b) does not apply.  Indeed, Comment [2] to Vermont’s rule states:

  • “Whether the lawyer is required to take additional steps, such as returning the original document, is a matter of law beyond the scope of these rules, as is the question of whether the privileged status of a document has been waived. Similarly, this rule does not address the legal duties of a lawyer who receives a document that the lawyer knows or reasonably should know may have been wrongfully obtained by the sending person.”

Rather, to me, the California opinion addresses what is often referred to as “purloined information.”  It’s not a simple issue.  Indeed, the annotation to ABA Model Rule 4.4(b) includes two pages of cites to decisions, advisory opinions, and law review articles that address a lawyer’s duties upon the “fortuitous receipt” of information that may or may not be privileged and may or may not have been improperly obtained.

Earlier this year, The Colorado Lawyer published Handling Electronic Documents Purloined by a Client. I recommend the article and suspect it might ring familiar to family law practitioners.  It “considers ethical issues raised when a client in pending litigation forwards her lawyer electronic documents that the client obtained without permission from the opposing party’s computer.”

Anyhow, I’m blathering.  I’m not convinced that there’s an absolute prohibition on possessing and attempting to use nonprivileged information fortuitously received.  Nevertheless, there are likely some gift horses worth looking in the mouth.  If the issue arises here, contact me for a confidential discussion of a lawyer’s duties under Vermont law, including both the Rules of Professional Conduct and the Rules of Civil Procedure.

Finally, I’m only in Season 2, but something tells me that Jessica Pearson and Harvey Specter wouldn’t need an advisory opinion to proceed.

Image result for jessica pearson and harvey specter

 

 

The bar exam, a lawyer shortage, Suits, and a few thoughts on leaked essay topics.

Vermont’s administration of the Uniform Bar Exam begins today.  76 aspiring lawyers will gather at a hotel in Burlington.  As made clear by this piece that ran on WCAX yesterday, we need a lot of them not only to pass, but to stay in Vermont.

If you weren’t aware, Vermont switched to the Uniform Bar Exam in 2016.  Today, the examinees will tackle the Multistate Performance Test and Multistate Essay Examination.  Then, tomorrow, one of the last bastions of the #2 pencil takes center stage: the Multistate Bar Examination, aka “the multiple choice.”

I went into the nuts & bolts of the Uniform Bar Exam in more details in this post.   Also, last February, I posted this Q&A with the examiners.  Finally, talk about a bizarre situation: this past weekend, California bar authorities discovered that the essay topics might have been inadvertently revealed.  So, as I blogged here, they sent an email to all examinees informing them what the essay topics would be.

I understand that there was no good solution.  Logistically, it was far too late to postpone the exam or draft new questions.  Sharing the topics with everyone was likely the best way to level the playing field.

A gut reaction might be “it’d be great to know the topics!” I’m not so sure.

For instance, my personal choice would have been to get my studying done by last Friday, then take the weekend to rest, relax, and get my mind right for the exam.  I’d likely not have had the discipline – or courage – to stick to my approach if, on Saturday, I’d learned what the essay topics would be.  Rather, I’d likely have felt compelled to study them, even if I’d already done enough preparation on each over the past few months.

And what about the examinee who takes my approach and then got off the grid for the weekend?

Also, the essays are intended to distinguish examinees from each other.  For many years, I graded bar exams.  In my experience, some were fantastic, some awful, and the vast majority in the vast middle. It’s difficult to perceive and assign a distinction between the many that are solidly average.  I wonder whether the fact that all examinees know the topics will result in essays that are even more difficult to differentiate than in a normal year.

Finally, I look forward to the day when we have a full-fledged discussion as to whether a two-day test is the best way to determine who gets a ticket to practice law.  Maybe it’s the Mike Ross in me.  Or, maybe it’s the fact that we have evidence – albeit in an infinitesimal sample size – that success (or a lack thereof) on the bar exam is not necessarily the only predictor of competence.

Image result for mike ross suits images

 

Monday Morning Answers #132

Welcome to Monday!  Friday’s questions are here.  Today’s answers follow the honor roll.

Maybe it’s a good omen that, after Friday’s reference, Safety Dance played on the radio as I drove to work this morning.

Please see Question 4: I hope nobody guessed I’d make an untrue statement at a CLE!

Honor Roll

Answers

Question 1

Lawyer represented Kennedy.   During the representation, Lawyer held funds in trust for Kennedy.  The representation ended last week.  How long must Lawyer keep records of funds that were held in trust for Kennedy?

  • A.   1 year from the termination of the representation.
  • B.   6 years from the termination of the representation.  Rule 1.15(a)(1)
  • C.   The rules do not specify a retention period for trust account records.
  • D.   The rules do not specify a retention period for trust account records, but by case law it’s 7 years from the termination of the representation.

Question 2

Attorney represents Client.  Attorney received information relating to the representation of Client that Attorney knows was not intended to be sent to Attorney.  Under the Vermont Rules of Professional Conduct,

  • A.  Attorney must notify sender.  Rule 4.4(b)
  • B.  Attorney must ask Client for consent to notify the sender.
  • C.  Attorney must not read, review, or inspect the information.
  • D.  It depends. Who sent the information?

Question 3

Attorney called me with an inquiry. I listened, then said, “the rule says you can’t do it unless:

  1. the terms are fair & reasonable to the client, and fully disclosed in a writing that the client can understand;
  2. you advise the client, in writing, of the desirability of seeking independent legal advice, and give the client a reasonable opportunity to do so; and,
  3. the client gives informed consent, in a signed writing, to the terms, including whether you are representing the client in that matter.”

What did Attorney call to discuss?

  • A.  Settling a malpractice claim with a former client.
  • B.  Settling a malpractice claim with a current client.
  • C.  Entering into a business transaction with the client. Rule 1.18(a)
  • D.  The client’s application for an advance from a third-party litigation funding company.

Question 4

You are at a CLE.  Your hear me say “there is a rule of professional conduct that specifically prohibits (a) frivolous discovery requests; and, (b) the failure to make reasonably diligent efforts to respond to an adversary’s proper discovery requests.”

That statement is:

  • A.   True. Rule 3.4(d)
  • B.   Not exactly true, but there’s a rule that requires lawyers “to make reasonable efforts to expedite litigation” and, arguably, this conduct falls under that rule.
  • C.   False – but a violation of the civil, criminal, or family rules of procedure can rise to the level of a violation of the rules of professional conduct.
  • D.  Mike, wait . . lawyers make frivolous discovery requests and drag their feet responding to an opponent’s legitimate requests?

Question 5

Speaking of the advertising rules, Harvey is a television lawyer who often refers to himself as “the best closer in New York.”  Maybe he is, maybe he isn’t.

Perhaps his bigger ethical concern should be that he hired an associate, Mike, who he knew hadn’t graduated from college, gone to law school, or passed the bar exam. Well, never passed the bar exam while taking it as himself.  Mike had passed many times while being paid to take the bar exam for others.

In real life, both actors attended this summer’s biggest wedding.

Name the show.

Suits.

See the source image

This summer, the actors that play Harvey Specter and Mike Ross attended co-star Meghan Markle’s wedding to Prince Harry.

See the source image

 

 

Monday Morning Answers

Happy Monday!

A goal this week: W.I.N. you 3 feet of influence.

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

Honor Roll

  • Karen Allen, Esq.; Karen Allen Law
  • Matthew AndersonPratt Vreeland Kennelly & White
  • Linda Baccki, Law Office Study Program, Law Office of Cristina Mansfield
  • Penny Benelli, Dakin & Benelli
  • Andrew DelaneyMartin & Associates
  • Bob Grundstein, Esq.
  • Tammy Heffernan, Esq.
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy, Queen Mum, JB Kennedy Associates
  • Kevin LumpkinSheehey Furlong & Behm
  • Lon McClintockMcClintock Law Offices
  • Jack McCullough, Vermont Legal Aid, Project Director – Mental Health Law Project
  • Hal Miller, First American
  • Nancy Hunter Rogers, Chamberlin Elementary School
  • Kane Smart, ANR, Office of General Counsel, Enforcement & Litigation Section
  • Robyn SweetCORE Registered Paralegal, Cleary Shahi  & Aicher
  • Thomas Wilkinson, Jr.; Cozen O’Connor

Answers

Question 1

Fill in the blank.

Lawyer wonders whether a client’s agreement to waive a conflict complies with the rules.  Researching it, Lawyer learns that ___________________ “denotes a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostating, photography, audio or video-recording, and e-mail.”

  • A.   Informed consent
  • B.   Writing or Written; Rule 1.0(n)
  • C.   Waiver
  • D.  Acceptance

Question 2

The word “remonstrate” appears in comments to ONE rule.  Which rule?

  • A.   Diligence
  • B.   Competence
  • C.   Advertising
  • D.  Candor Toward The Tribunal; Rule 3.3, Comment [10]

Question 3

True or False:

If Attorney sues Client for a fee, Attorney cannot represent herself at trial if her testimony will be reasonably necessary to establishing the nature and value of the legal services that she rendered to Client.

False.  Rule 3.7(a)(2)

Question 4

Attorney called me with an inquiry.  I listened, then replied “over 20 years ago, the rule was changed to make it clear that it not only applies to ‘parties,’ but to any person who is represented in the matter.”

Which rule?

Rule 4.2 Communication with a Person Represented by Counsel.  See, Comment [2]

Question 5

I am an actress.

On TV, my name is Rachel and I am a summer associate at a law firm.  For many years, I worked as a paralegal at the firm.  I wanted to go to Harvard Law, but never scored high enough on the LSAT.  Thanks to help & encouragement from one of the firm’s lawyers, I kept trying and, eventually, scored high enough to get into Columbia Law, which I’m currently attending.

The lawyer who helped me?  His name is Mike.  Some would say he’s no prince. When the firm hired him as an associate, he neglected to disclose that he had never gone to law school and wasn’t even really a lawyer.  But, what a guy! We fell in love and, now, on the show, we’re engaged.

In real life, I also just got engaged.  And not to some lawyer with a sketchy background.

Who am I?

Meghan Markle.  The show is Suits.  If you haven’t heard of her, in real life, she and Prince Harry recently engaged.  

Markle

 

Monday Morning Answers: #88

I apologize for not posting this earlier.

Friday’s questions are HERE.  Spoiler alert, the answers follow this week’s Honor Roll.

Apparently, not many of my readers are NASCAR fans.  Kudos to Penny Benelli, Beth DeBernardi, and Erin Gilmore for recognizing that Friday’s picture was of Dale Earnhardt, Jr. and me.  Junior drives the 88.

Junior 88

Honor Roll

  • Laura Anderson, Nursing Supervisor, Mt. Ascutney Hospital & Health Center
  • Matt AndersonPratt Vreeland Kennelly Martin & White
  • Penny Benelli, Dakin & Benelli
  • Alberto BernabeLaw Professor, John Marshall Law School
  • Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labor
  • Erin GilmoreRyan Smith & Carbine
  • Robert Grundstein
  • Aileen LachsMickenberg, Dunn, Lachs & Smith
  • Samantha LednickyDowns Rachlin & Martin
  • Kevin LumpkinSheehey Furlong & Behm
  • Lon McClintockMcClintock Law Office
  • Hal Miller, First American
  • Robyn SweetCore Registered Paralegal, Cleary Shahi & Archer

Answers

Question 1

Prospective Client consults in good faith with Lawyer, with an eye towards retaining Lawyer.  However, Client chooses not to retain Lawyer.  Client notifies Lawyer of the decision.

Per the rules, Lawyer continues to owe Prospective Client a _____________, but in a somewhat relaxed fashion as compared to a former client.

  • A.   Duty of Loyalty
  • B.   Duty to Maintain Client’s Confidences
  • C.   Neither A nor B
  • D.  Both A & B

I don’t think I phrased the question well.  Here’s what I was trying to help people to think about.

Rule 1.18 sets out the duties that a lawyer owes to a “prospective client.”  A prospective client is one who consults with a lawyer in good faith and with an eye towards retaining the lawyer, but who, for whatever reason, does not retain the lawyer.

The duty to maintain the prospective client’s confidences continues to apply and IS NOT relaxed.  Rule 1.18(b) says:

  • “Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.6 would require or permit or as Rule 1.9 would permit with respect to information of a former client.”

In other words, I read the duty to maintain the prospective client’s confidences to apply to the same extent & degree as it would apply if the client was a former client.

Further, I read the rule as relaxing, however little, the duty of loyalty as compared to the duty of loyalty owed to a former client.

With respect to a former client, Rule 1.9(a) makes it clear that a lawyer cannot represent someone whose interests are materially adverse to those of a former client in the same or a substantially related matter unless the former client gives informed consent, confirmed in writing.

Rule 1.18 is different.  Specifically, Rule 1.18(c) states that “a lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d).”  (emphasis added).  There’s no such proviso in Rule 1.9, the rule that applies to former clients.

In other words, as I read the rule, it’s not as strict as Rule 1.9 and applies only if the lawyer received information that could be significantly harmful to the prospective client. And, even then, paragraph(d) permits a firm to screen the lawyer who consulted with the prospective client.  Normally, a former-client conflict under Rule 1.9 is imputed to all other lawyers in the firm by Rule 1.10 and, therefore, screening is not allowed. That’s another reason why I consider Rule 1.18 to relax the duty of loyalty.

Question 2

Which must a lawyer keep for 6 years following the termination of a representation?

  • A.   The file
  • B.   Client confidences
  • C.   Complete records of funds held in trust and other property
  • D.  Electronic communications with the client

The rules require the file to be delivered upon the termination of the representation.  Rule 1.16(d).  There is no duty to keep a copy. Of course, it’s a good idea to do so and, odd are, your liabilit insurance requires you to.

 Confidences must be kept forever, unless a client consents to disclosure or the information has become “generally known.”  See, Rule 1.9(c). 

Electronic communications are part of the file and there is no independent rule requiring them to be kept.

Rule 1.15(a)(1) requires lawyers to follow the trust account rules and prohibits commingling.  It states that “[c]omplete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of six years after termination of representation.”

Question 3

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

  • “Client hasn’t paid in 8 months? Assuming nothing crucial is imminent, my position is that you’re permitted to file the motion.  Whether the court grants it is another question.  The question will be whether there will be a material adverse effect on your client.”

What type of motion?

Motion to Withdraw, See V.R.Pr.C 1.16(b)

Question 4

Attorney represents Irving in the civil matter Irving v. James.   Lawyer represents James and has retained Expert Witness.

Whether Attorney can contact Expert Witness without Lawyer’s permission is likely governed by:

  • A.  Rule 4.2 (the no-contact rule)
  • B.  Rule 1.6 (information relating to the representation)
  • C.  The Rules of Civil Procedure
  • D.  The Rules of Evidence

An expert witness is not represented by the lawyer who represents the party or person for whom the witness will be testifying. So, Rule 4.2 does not apply.

However, Rule 26 of the Rules of Civil Procedure limits the ways in which discovery may be obtained from an expert witness.  Contacting that witness informally might not be one of them.  Thus, in the hypo, Rule 26 answers the question. And, remember, a violation of the Rules of Civil Procedure might rise to the level of a violation of Rule 3.4(c) of the Rules of Professional Conduct.

Question 5

When we first met Mike Ross, he hadn’t gone to college or law school, but was earning money by taking (and passing) the LSAT for others.  Then, to earn money to pay for his grandmother’s medical care, Mike agreed to deliver marijuana for a friend.  Somehow he managed not to be arrested in the ensuing sting and, almost impossibly, ended up with a job interview at a law firm.

He was hired.  As a lawyer. Even though Harvey, the partner who interviewed him, knew that Mike had not taken the bar exam or been admitted to practice.

After several years in practice, Mike was charged criminally with fraud & the unauthorized practice of law.  While the jury deliberated, Mike agreed to a plea offered by Anita, the U.S Attorney who was prosecuting him.

After serving a prison stint, Mike passed the bar, with only review by the Character & Fitness Committee standing between him and admission.  Yikes! Guess who bribed her way onto the committee charged with reviewing his application??? Anita!!  She did so not only to keep Mike out, but to try to prove her theory that Harvey (and others) had known all along that Mike wasn’t a lawyer!

Amazingly, Mike was admitted and spent the show’s most recent season as a duly licensed member of the New York State Bar.

Name the tv show.

Mike Ross is a lawyer in Suits.  

Ross Suits