Court isn’t a social media platform.

It’s the rare inquiry that involves the rule that addresses trial publicity.  Alas, in that it’s becoming more and more rare to find a lawyer not on social media, I think today’s message bears mentioning.

Rule 3.6 is the trial publicity rule.  It prohibits “extrajudicial statements that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”

Whoa.  Try saying that three times fast.

Anyhow, lately I’ve sensed a general feeling that arguments made in pleadings and court are seeping into lawyers’ social media posts, thereby raising Rule 3.6 concerns.

I disagree.

Based on the information I’ve reviewed when responding to inquiries and screening complaints over the past few years, I believe that the accepted norms of social media posts are seeping into pleadings and arguments.

I don’t say that with admiration for those causing the seepage.

Court is court.  It’s not the kitchen table, the town square, the bar, or Facebook. Give it the respect it deserves. Or, read Rule 3.5(d).

Last week, Professor Bernabe blogged about a Texas lawyer and client who were “’sanctioned $150,000 for the client’s ‘outright lies’ in litigation and ‘mountain of evasiveness’ in discovery.”  His post is here.  It links to this ABA Journal story, which, in turn, cites to a post on Law.com.

I’m not going to get into the misconduct that resulted in the sanction. For those interested in learning more about it, the court’s order imposing the sanction is here.

Rather, I want to highlight a statement made by the other lawyer.  Per the ABA Journal, “Opposing counsel Foster Johnson told Law.com that he hoped that the sanctions would be a warning to other lawyers.”

Then, the money quote:

  • “ ‘Lawyers at times forget filing motions and pleadings is not like using Twitter,’ Johnson said. ‘You can’t just say anything you want when you file a complaint. You can’t say anything you want when you file a summary judgment motion.’”

Indeed.

To paraphrase this blog’s muse, “say it in a Tweet it’s a knockout, but you say it in a court you’ll be kicked out.”

Remember, in pleadings & arguments:

1*wA1Vc082NU82zI64lp99Sg

Don’t say I didn’t say I didn’t warn ya.

Five For Friday #189

Welcome to Friday!

It’s Super Bowl weekend.  One of my favorite aspects of the Super Bowl? The long odds that you can get on crazy (and entertaining) prop bets. For instance, you can bet on who will tackle a fan who runs onto the field.  The longest odds are on “another fan.”  A $100 bet pays $750.

Ok, so, regular readers know a few things about me.

  • I try to tie the Friday column to the quiz number, the date, or an upcoming event.
  • I like to include references to pop culture & sports.
  • I’m a Taylor Swift fan.
  • I’m superstitious.

Today is Justin Timberlake’s birthday.  He’s been part of two memorable half-time performances at the Super Bowl.  Sunday is the Super Bowl and, this quiz number – 189 –  is (sort of) associated with Taylor Swift.

Image result for taylor swift 1989

When I started this blog, the odds were astronimical that quiz 189 would fall on Justin Timberlake’s birthday two days before the Super Bowl. A $100 bet probably would’ve paid $75,000.  I cannot believe my luck!

Here’s where my superstitious side kicks in.

Been there, done that.

Five For Friday #92 posted on October 27, 2017.  Central characters?

  • Justin Timberlake;
  • Taylor Swift; and,
  • the Super Bowl.

What are the odds?

Alas, I will you leave this.  Regular readers also know that I like stories that involve clever filings by lawyers.

Denise Kirby is a lawyer in Kansas City.  She’s a Chiefs fan and is in Miami for the Super Bowl, but only after receiving a continuance for a trial that had been scheduled for Monday.  As it did me, I hope that Attorney Kirby’s Request For Continuance makes you smile.  Above The Law has the story & filing here.

Onto the quiz!

Image result for taylor swift 1989

  • 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

There’s a rule that prohibits a lawyer from communicating about the subject of the representation with a person that the lawyer knows is represented by another lawyer.

Which is NOT an exception to the prohibition?

  • A.    The other lawyer consents to the communication.
  • B.    The communication is authorized by law.
  • C.    The represented person initiates the communication.
  • D.    Trick question.  A, B and C are exceptions to the rule.

Question 2

Here are 2 things I mentioned at CLE:

  1. last minute changes to wire instructions; and,
  2. a prospective out-of-state client who claims to be owed money by a person or business that is in Vermont, and who only communicates with you by e-mail.

I was warning lawyers about  ________.

  • A.   accidentally communicating with a represented person.
  • B.   the risks of not understanding how to conduct e-discovery competently.
  • C.   the Unauthorized Practice of Law.
  • D.   common trust account scams.

Question 3

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
  • B.   Flat Fees
  • C.   An agreement to limit the scope of a representation
  • D.   All the Above

Question 4

Attorney called me with an inquiry.  She said “Mike, I represented Client.  The case is over.  She’s coming to my office later this week.  I have some questions about mental impressions, as well as internal notes and memoranda.”

Most likely, what did Attorney call to discuss?

  • A.  The duty to report a client’s fraud.
  • B.  The duty to act competently to safeguard client data stored in the cloud.
  • C.  The duties to a client who suffers from a diminished capacity.
  • D   The duty to deliver the file.

Question 5

Background: after consecutive quizzes that included questions related to the British royal family, the ghost of Aunt Kate admonished me through a local lawyer who spent many an election night at Aunt Kate’s house.   As such . . .

. . . in 1966, Alan Page led the Notre Dame Fighting Irish to the college football national championship.  He went on to star in the NFL, and played in 4 Super Bowls for the Minnesota Vikings.  On the Vikings, he was part of a defensive unit that had a colorful nickname.  After retiring from football, Page embarked on a legal career that included serving for 30 years on the Minnesota Supreme Court.

That’s right: he played & served in Prince’s home state.

Back to Super Bowl bets & long odds: another available bet is “what color Gatorade will the winning team pour over its coach?”

When betting opened, a particular color was the longest shot, with a $100 bet paying $1,800.  As of this morning, that color is now the odds-on-favorite, with winners only getting even money.

If you know anything about Prince, the Vikings, and the nickname of Page’s defensive unit, you’ll know the color.

What color?

Monday Morning Answers #182

May your Monday not have begun in an airport!  In the spirit of Question 5, all I can do now is shake it off, shake it off.

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

Honor Roll

  • Carolyn Anderson, General Counsel, Green Mountain Power; Vice-Chair, Professional Responsibility Board
  • Evan BarquistMontroll Backus & Oettinger
  • Honorable John M. Conroy, United States Magistrate Judge, District of Vermont
  • Erin GilmoreRyan Smith & Carbine
  • Laura Gorsky, Esq.
  • Robert Grundstein, Esq.
  • Glenn Jarrett, Jarrett & Luitjens
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
  • John LeddyMcNeil Leddy & Sheahan
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Jeffrey MessinaBergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Herb Ogden, Esq.
  • Nancy Hunter Rogers, Chamberlin School 
  • Jim Runcie, Ouimette & Runcie
  • Kristen ShamisMonaghan, Safar, Ducham
  • Jonathan Teller-Elsberg, Vermont Law School, JD Candidate

Answers

Question 1

A lawyer has a duty to reasonably consult with the client about the means by which the client’s objectives are to be accomplished.

  • A.   False.  The lawyer controls the means.
  • B.   False.   The lawyer shall abide by a client’s decisions with respect to the means by which the client’s objectives are pursued.
  • C.   True.  V.R.Pr.C. 1.4(a).

A and B are not correct.  Per Rule 1.2(a), the client controls the objectives and the lawyer “as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued.”  This does not give the lawyer control over the means.  For instance, a client might not want to pay for something the lawyer suggests be done.  Nor does it give the client the absolute right to direct the lawyer to do certain things . . .  for instance, violate the rules.

Question 2

In representing a client, a lawyer _______ not use means that have no substantial purpose other than to embarrass, delay, or burden a third person.

Which is most accurate?

  • A.   This is a rule.  And the blank is “shall.”   V.R.Pr.C. 4.4(a).
  • B.   This is not a rule. It’s an aspirational comment to one of the rules. And the blank is “should.”

Question 3

A lawyer is holding funds to which both a client and third person claim interests. Their interests are in dispute.  By rule, the lawyer must:

  • A.  disburse the funds as directed by the client
  • B.   hold the funds until the dispute is resolved.  V.R.Pr.C. 1.15(e)
  • C.   withdraw from representing the client
  • D.   A or C

Question 4

If an attorney calls me with an inquiry and my response includes use of the word “imputed,” what did the attorney most likely call to discuss?

  •  A.  Reviewing an adverse party’s social media posts
  •  B.  Trust account management
  •  C.  A potential conflict of interest.   V.R.Pr.C. 1.10
  • D.  Advising a client to change the privacy settings on her social media platforms

Question 5

 Earlier this year, I blogged about Andrew Manitsky.  Not only is Andrew in a band, he’s my go-to guy when I have questions related to intellectual property and trademarks.

The 2019 American Music Awards are scheduled for November 24.  The artist who will be honored as the AMA Performer of the Decade planned to perform the songs that helped the artist earn the honor.  Songs that the artist wrote, sang, and made famous.

However, this week, the artist took to social media to allege that the label that owns the rights to the artist’s catalogue is refusing to let the artist perform the artists own songs during the ceremony and, further, has also banned the artist from using the music in an upcoming Netflix documentary about the artist’s career.  The label responded by accusing the artist of disseminating “false information.”

Regular readers will certainly know whose side I’m on!

Name the artist.

Taylor Swift in her on-going battle with Scooter Braun.  The New York Times has the latest.

Taylor Swift said that she was being blocked from performing her old songs at an awards show, as well as from using them in a Netflix documentary. In a statement, Big Machine Label Group said it was honoring her requests.

Five for Friday #175: Superstitions & Expiration Dates

Happy Friday!

On the superstition spectrum, I’m much closer to Steve Wonder

Image result for stevie wonder very superstitious

than I am to Michael Scott.

Image result for michael scott superstitious

That being said, Friday the 13th doesn’t bother me.  No, when it comes to superstitions, most of mine relate to sports or food.  In fact, I’m using today’s intro to ask my readers to weigh in on a particular of my food superstitions, one that is not shared by two of my most loyal readers.  More on that in a moment.

First, my food-related superstitions include:

  • it’s bad luck to set a microwave for a time that ends in 0.  (e.g.: 1: 59 is far safer than 2:00.)
  • it’s bad luck to pour the cream or milk after you’ve poured the coffee. put the cream or milk in first, then the coffee. Always.
  • in a restaurant, it’s bad luck to disclose your order to someone you’re eating with before you announce the order to the server;
  • in a restaurant, it’s bad luck to order the same thing as someone eating with you.
  • thus, it’s obvious that, in a restaurant, it’s bad luck not to order last.

(Don’t worry, over dinner, my wit, charm, and conversational skills will cleanse your palate of how insufferable I was prior to ordering.)

Fact:  I live my life by the superstitions listed above.  However, I write today for your input on the food-related superstition that is most critical to my belief system: expiration dates.

I treat consuming food after the expiration date like Taylor Swift treats getting back together: never ever.   Literally.  If the expiration date is the 15th, I might not even consume it on the 13th.  There is zero chance that I will use it on the 16th.  To me, this isn’t even a superstition.  It’s science.

Now, as I mentioned,  at least two of my most loyal readers disagree with me on this issue.  I’m not sure that I should I identify them.  Thus, to protect their anonymity:

  • each has a first name that begins with J;
  • one has known me for every single second of my life; and,
  • the other works for the Vermont Bar Association.

Their cavalier attitudes towards expiration dates leaves me worried for their health.  Seriously.   I’m not talking about using something a day or two after the deadline.  I’m talking weeks!  That’s not wellness!

So, here’s what we’re going to do.   I’ve set up a poll.  It’s here.  Please weigh in on this important issue. You don’t have to take the legal ethics quiz to do so. .

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 is most accurate?  By rule, a lawyer shall ___________:

  • A.  reasonably consult with the client about the means by which the client’s objectives are to be accomplished.
  • B.  abide by the client’s direction as to the means by which the client’s objectives are to be accomplished.
  • C.  B, unless to do so would violate the Rules of Professional Conduct.
  • D.  None of the above.  The rules require a lawyer to abide by the client’s objectives but are silent as to the means by which those objectives are accomplished.

Question 2

By rule, when representing a client, a lawyer shall not communicate with a person who is represented by another lawyer absent the consent of the other lawyer.

True or False: the rule only applies if the represented person’s interests are adverse to the interests of the lawyer’s client.

Question 3

Lawyer called me with an inquiry.  I listened then said “there are 3 exceptions to the rule.  The first is if the testimony relates to an uncontested issue.  The second is if the testimony relates to the nature and value of legal services rendered in the case.”

Given my response, the testimony of who?

  • A.   an expert witness
  • B.   Lawyer’s former client, and former client is adverse to Lawyer’s current client
  • C.   a lawyer
  • D.  Lawyer’s client, and Lawyer’s client suffers from a diminished capacity.

Question 4

By rule, Disciplinary Counsel and the Supreme Court are authorized to conduct & order, respectively, compliance reviews & audits of a lawyer or law firm’s:

  • A.  financial records
  • B.  financial records, including trust accounts
  • C.  financial records, including trust & fiduciary accounts
  • D.  C, but only upon receipt of information sufficient to establish that there is probable cause for the compliance review or audit.

Question 5

Privileges, confidences, conflicts.

In real-life, Paul Giamatti’s father, Bart, served as Commissioner of Major League Baseball.  There, Bart effectively disbarred Pete Rose by banning him from the sport.

On television, Paul Giamatti plays Chuck Rhoades, United States Attorney for the Southern District of New York.  Initially, the show focuses on Rhoades’ fixation with building a criminal case against Bobby Axelrod, an incredibly wealthy hedge fund trader who owes much of his fortune to gains made as a result of the 9/11 terrorist attacks.  A complicating factor?  Rhoades’ wife, Wendy, is a psychiatrist who works as a “performance coach” at Axe Capital, the hedge fund owned by Axelrod.

Central to the show’s plot are Wendy’s relationships with Rhoades and Axelrod, and the issues related to privileges, confidences, and conflicts that arise as a result.

Name the show.

Image result for bobby wendy chuck one picture

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Manage expecations with candid legal advice

In November 2017, I posted The 50 Original Rules.  It’s a recap of the history of the conduct rules that apply to lawyers.

As best as I can tell, the earliest record of guidelines for attorney conduct in the United States is David Hoffman’s 1836 publication of his Fifty Resolutions in Regard to Professional Deportment.  My post includes each of Hoffman’s 50 resolutions.

182 years later, it’s somewhat fascinating to me how many of Hoffman’s resolutions continue to resonate.  Many are embedded in the rules and our collective professional conscience.  Given my fascination, I’ve resolved to blog about the continued relevance of Hoffman’s resolutions, taking them one at a time.  So far:

  1. Don’t be a jerk.
  2. Don’t switch sides.
  3. Don’t overcomplicate trust accounting.
  4. Deliver the file
  5. Resolve to be a mentor
  6. Be Diligent

Today’s tip: manage expectations by providing candid legal advice.

Here’s Hoffman’s Resolution 31:

  • “All opinions for clients, verbal or written, shall be my opinions, deliberately and sincerely given, and never venal and flattering offerings to their wishes or their vanity. And though clients sometimes have the folly to be better pleased with having their views confirmed by an erroneous opinion than their wishes or hopes thwarted by a sound one, yet such assentation is dishonest and unprofessional. Counsel, in giving opinions, whether they perceive this weakness in their clients or not, should act as judges, responsible to God and man, as also especially to their employers, to advise them soberly, discreetly, and honestly, to the best of their ability, though the certain consequence be the loss of large prospective gains.”

I’m using the exact quote.  To be clear, I’m not suggesting that competent representation includes being responsible to God or any other deity.  Again, I was simply quoting Hoffman.

The rest of Resoluton 31 is as relevant today as it was in 1836.  Candid legal advice is always a better option than telling the client what the client wants to hear.

I’ve written often on managing client expectations:

In my experience, the lawyer who fails to set reasonable expectations at the outset of the representation should expect to have the client file a disciplinary complaint.

False hope leads to disappointment.  Even if the result is as good as the client should have expected from the outset, the client likely will be disappointed if the result pales in comparison to what the lawyer suggested the outcome would be.  Don’t fall into that trap.  As Hoffman said, “[a]nd though clients sometimes have the folly to be better pleased with having their views confirmed by an erroneous opinion than their wishes or hopes thwarted by a sound one, yet such assentation is dishonest and unprofessional.”

Better to thwart unreasonable hopes with sound advice than to nurture their growth.

Manage expectations by providing candid legal advice.  If you don’t, the client will insert your name into the Blank Space on a disciplinary complaint.

Don’t say I didn’t say I didn’t warn ya.

Image result for taylor swift blank space images

 

 

 

Fed Judge to Taylor Swift: “However banal, play on playa!”

(Note:  this post originally ran on February 25.  Today, March 1, I’m updating it to reflect a reader’s report that “player” and “hater” aren’t the first words to code. The update appears at the end of the post.)

Two of the most read posts in the history of Ethical Grounds are my #fiveforfriday posts on Taylor Swift and My Cousin Vinny.

The nation’s federal judges are slowly but surely starting to speak this blog’s language!

Last year, an appeals court issued an opinion in which it cited to Judge Chamberlain HallerThen, last week, a federal judge dismissed a copyright claim that had been filed against Taylor Swift.  The story has been covered by the ABA Journal, Washington Post, and Hollywood Reporter.

Plaintiffs Sean Hall and Nathan Butler alleged that Swift lifted the chorus to her hit Shake It Off from their 2001 song Playas Gon’ Play.  The hook to this blog: stealing lyrics (copyright infringement) is the music industry’s equivalent of a disbarrable offense.

Anyhow, in the Swift case, the plaintiffs’ 2001 work included the following lyrics: Playas, they gonna play/ And haters, they gonna hate / Ballers, they gonna ball / Shot callers, they gonna call / That ain’t got nothin’ to do / With me and you / That’s the way it is /That’s the way it is.”

For you non-Swifties, Taylor’s Shake It Off  debuted at #1 in September 2014.  Its chorus begins: “Cause players gonna play, play, play, play, play.  Haters gonna hate, hate, hate, hate, hate.” But Taylor’s just gonna shake it off, shake it off.

And shake it off she did per this opinion from U.S. District Judge Michael Fitzgerald.

As noted by the Washington Post, Judge Fitzerald’s order is “peppered with judicial shade.”  In other words, with the opinion, Judge Fitzgerald staked a claim as the federal judiciary’s leading baller, shot caller.  (I have no idea if he’s got 20 inch blades on the Impala.)

Fitzgerald opened by taking judicial notice of a series of songs whose lyrics refer to “players” and “haters.” The list includes Fleetwood Mac’s Dreams (“players only love you when they’re playing”), Outkast’s debut single Player’s Ball, and Notorious B.I.G.’s Playa Hater.

Then, after reciting law and stuff, Fitzgerald got to the crux of the matter:

  • “Plaintiffs argue that their short phrase – ‘Playas, they gonna play/And haters,they gonna hate’ – is sufficiently creative to warrant protection. The Court disagrees.”

He went on:

  • “The concept of actors acting in accordance with their essential nature is not at all creative; it is banal. In the early 2000s, popular culture was adequately suffused withthe concepts of players and haters to render the phrases ‘playas … gonna play’ or ‘haters … gonna hate,’ standing on their own, no more creative than ‘runners gonna run,’ ‘drummers gonna drum,’ or ‘swimmers gonna swim.’ Plaintiffs therefore hinge their creativity argument, and their entire case, on the notion that the combination of  ‘playas, they gonna play’ and ‘haters, they gonna hate’ is sufficiently creative towarrant copyright protection.”

Almost there:

  • “It is hardly surprising that Plaintiffs, hoping to convey the notion that one should persist regardless of others’ thoughts or actions, focused on both players playing and haters hating when numerous recent popular songs had each addressed the subjects of players,haters, and player haters, albeit to convey different messages than Plaintiffs were trying to convey. In short, combining two truisms about playas and haters, both well-worn notions as of 2001, is simply not enough.”

And the coup de grace:

  • “To explicitly state the [plaintiffs’] argument is to see how banal the asserted creativity is. In sum, the lyrics at issue – the only thing that Plaintiffs allege Defendants copied – are too brief, unoriginal, and uncreative to warrant protection under the Copyright Act.”

Hammer don’t hurt ’em!

There you have it folks.  A federal court has announced that players and haters are so over.  Banal.  Unoriginal.  Lacking in creativity. Lit? Not.

An era has ended.

By the way, how about the plaintiffs’ onions?  Check out the lyrics that they sought to protect from “infringement”:

  • “Playas, they gonna play/ And haters, they gonna hate / Ballers, they gonna ball / Shot callers, they gonna call / That ain’t got nothin’ to do / With me and you / That’s the way it is /That’s the way it is.”

Blatantly ripped off from both Lil’ Troy and Bruce Hornsby!

Here’s the update: a Linkedin follower points out that, long before player and hater suffered their demises, noted record producer Rick Rubin held a funeral for the word “def.”  World of Pop Culture has the story here.

 

Swift

 

 

 

 

Five for Friday #99

Welcome to #99!

Before I get down to business, let’s talk about the weather.   Yes, it’s cold.  But, don’t worry: at least it’s a dry cold.

Now, let’s talk about 99.

Regular readers might expect me to use this space to wax poetic about Prince.

Wrong.

Surely, by now you know that I’m incapable of waxing poetic about anything.  And stop calling me Shirley.  Further, I did a Prince-themed quiz upon his untimely passing.

Instead, I’m going to take the easy way out, similar to what I did this week with my regular blog posts.  I’m going to use the fact that this column coincides with the year’s end to recap 2017’s most-read #fiveforfriday quizzes.

In reverse order:

Stones

#3:  Beatles v. Stones.  Last spring marked the 50th anniversary of the U.S. release of Sgt. Pepper’s Lonely Hearts Club Band.  In the days leading up to the anniversary, several readers asked if I planned to use the #fiveforfriday column to honor The Beatles and the album.   Ummm, no.  Instead, I used the occasion to honor The World’s Greatest Rock & Roll Band:  The Rolling Stones.  Pandemonium ensued, with chronic cases of Beatle-mania causing otherwise competent members of this bar to cite the column as proof that I should be disbarred.  The quiz is here, the answers here.

Swift

#2: Bar Counsel is a Swiftie The 2nd most-read #fiveforfriday quiz in 2017 was my confession to being a Taylor Swift fan. (it also included an ode to Tom Petty).  If being a Swiftie is a crime, I have three words for you:  guilty as charged!  The post generated a significant number of responses.  Some were Mean, leading me to conclude that some of my readers . . . well, let’s just say that We Will Never Ever Get Back Together.  But, I didn’t let the Bad Blood bother me, telling myself “Self, just Shake It Off.”  Not to mention, most responses were positive, with readers recognizing that the confession demonstrated my Style.  Or maybe they were just trying to curry favor in case their names ever end up in the Blank Space on a disciplinary complaint that lands on my desk.  The quiz is here, the answers here.

MY COUSIN VINNY, Mitchell Whitfield (far left), Ralph Macchio (second from left), Joe Pesci (third f

#1: My Cousin Vinny.   If there’s one thing that Vermont lawyers know about cross-examining witnesses, it’s that a jury simply cannot trust someone who claims to have cooked grits in 5 minutes when it takes the entire grit-eating world 20!  What, were those magic grits?? Oh, and Jerry Gallo? He’s dead!   The My Cousin Vinny-themed quiz got over 400 clicks on the weekend it was posted.  Making it, by far, the most read of the 2017 #fiveforfriday quizzes. Here’s to Positraction, Metallic Mint Green, and Utes! The quiz is here, the answers here.

Thanks for reading and participating!

Onto the 99th quiz!

Rules:

  • None. You’re not even required to answer every question. And you don’t need to go 5 for 5 to make the honor roll!
  • Team entries welcome.  (think: “wisdom of crowds”)
  • Creative team names encouraged & appreciated.
  • Please consider sharing the quiz with friends & colleagues, even non-lawyers!
  • social media hashtag is #fiveforfriday
  • E-mail entries to michael.kennedy@vermont.gov
  • I’ll post the answers sometime early next week
  • REMEMBER:  Folks – in the spirit of celebrating a new year, these questions are FOR FUN!

Question 1

Regular readers know that I’m obsessed with fond of “tech competence.”  Today, one of the final days of 2017, a search on “tech competence” produces theses posts.

Harken, for a moment, back to the final days of 1999.  At the time, “tech competence” was, in a way, very much in the news.  What was the name given to the tech issue that many expected to cause widespread calamity as soon as ’99 ended?

Question 2

In ’99, a TV show that focused on the law firm Cage & Fish won the Primetime Emmy for Outstanding Comedy.  The main character joined the firm after leaving her previous job as a result of being the victim of sexual harassment.  On her first day at the new job, she was stunned to learn that her ex worked at the firm too.

In a poll conducted by the ABA in 2010, the main character was named one of the top 25 “greatest fictional lawyers not named Atticus Finch,” and was the highest-ranked female lawyer on the list.

Name her.

Question 3

In a previous quiz, I included a question on Jay-Z’s 99 Problems.  Believe it or not, and having mentioned The Beatles, in 2004, Danger Mouse released The Grey Album.  It was a mashup of  songs from The Beatles White Album with songs from Jay-Z’s Black Album. Danger Mouse mashed 99 Problems with Helter Skelter.

Helter Skelter reminds me of a real-life attorney who some might say was “ethically challenged.”

Irving Kanarek represented a notorious client in a criminal trial that began in 1971.  The client was charged with conspiracy to commit multiple murders.  During the trial, Kanarek:

  • objected 9 times during the prosecutor’s opening statement;
  • was found in contempt 4 times;
  • spent 2 nights in jail for contempt;
  • gave a 7 day closing argument; and
  • had the judge tell him he was “totally without scruples, ethics, and professional responsibility.”

Who was Kanarek’s notorious client?

Question 4

On behalf of Client, Attorney sent a letter to Potential Defendant.   Attorney received a response that included the following statements:

I was dreamin’ when I wrote this
So sue me if I go too fast
But life is just a party
And parties weren’t meant to last

Who is Potential Defendant, and what does Potential Defendant intend to do this weekend?

Question 5

One of 1999’s most notable events was a 5-week trial in which a lawyer was charged with perjury and obstruction of justice.  The lawyer was acquitted of both charges.  The vote on the perjury charge was 55-45.  The vote on the obstruction charge was 50-50.

Name the lawyer.

Bonus: name the judge who presided over the trial.

Finally, as a blogger who often writes about the duty of competence, it’d be incompetent of me to post a 99-themed blog without mentioning one of the most gloriously incompetent tv characters of all time, Maxwell Smart, and his partner, Agent 99.

Smart & 99.jpg

 

Tuesday Morning Answers – Holiday Quiz

You know this blog has established itself when, on Christmas Day, my mom somewhat ruefully notes that she wishes she hadn’t given me a Runner’s World calendar, but a Taylor Swift one instead.

Friday’s quiz is here.  The answers follow today’s Honor Roll.

Swift Christmas

Honor Roll

Answers

Question 1

Attorney represents Egg and Nog.   They’ve been charged with criminal conspiracy to face unafraid the plans that they’d made.

Undeterred by Comment 23 to Rule 1.7 (conflicts), but motivated by a desire to comply with Rules 1.1 (competence) and 1.3 (diligence), Attorney tracks down a key witness: Parson Brown.  Parson Brown agrees to an interview, but only if it’s outside.

What’s Parson Brown made of?

Snow.  Parson Brown is a character in Walking in a Winter Wonderland.

Question 2

My posts on legal ethics & marijuana are here.

Having secured an acquittal for Egg & Nog by successfully employing the “but it was just a dream by the fire!” defense, Attorney is back at it: representing new co-defendants.   Tommy and Marin have been charged with possession of extraordinarily large quantities.

Upon concluding an initial interview with Tommy and Marin, Attorney called me with an inquiry about Attorney’s duties under Rule 1.14 (client with diminished capacity.) Here’s our exchange:

  • Attorney – Mike, i don’t want my license to go up in smoke.  I’ve got co-defendants, Tommy & Marin.  Tommy thinks that Santa is a band! When I told him Santa isn’t a band, he thought maybe Santa was a Motown singer.  When I asked him how he didn’t know who Santa is, he replied ‘yeah, well, I’m not from here, man. Like, I’m from Pittsburgh, man. I don’t know too many local dudes.’
  • Me – Interesting.
  • Attorney:  And Marin isn’t much better.  He kinda knows who Santa is.
  • Me – Kinda?
  • Attorney.  Yeah.  He thinks that Santa and Mrs. Claus used to live in his neighborhood before getting evicted and  moving up north to start a commune with some of their friends.  Marin told me that Mrs. Claus used to make the best brownies in the neighborhood. He also thinks that Santa shut down the commune so as not to risk getting stopped at the border and found with the ‘magic dust’ that he feeds to his reindeer.

Who are Attorney’s clients better known as?

Cheech & Chong.  See, Santa Claus and his Old Lady

Question 3

Lawyer represents Client.  Client is charged with kidnapping Clarice and assaulting a gallant suitor who attempted to free her.  Client is also charged with the felony murder of one Yukon Cornelius.  Yukon is presumed dead.  He disappeared off a cliff during the daring rescue mission of Clarice and her suitor that Yukon carried out with an heretofore incompetent dentist.

But lo’ and behold, the prosecutor learns that Yukon is alive and well!  As required by Rule 3.8(d), prosecutor notifies Lawyer and, then, as required by Rule 3.1, dismisses the felony murder charge.

Lawyer works diligently to convince prosecutor to drop the remaining charges.  After all, despite a monstrous reputation, Client is winning in the court of public opinion.  If only because Client’s physical stature comes in handy during the holidays.

Who is Lawyer’s client?

Bumbles bounce! Bumble the Abominable Snow Monster

Bumble

Question 4

Attorney represents Michael Scott’s co-workers.  They have filed a civil suit against him & Dunder Mifflin.  The suit makes various tort claims related to the undisputed fact that, in the middle of the The Office’s holiday party, Michael unilaterally changed its format.

Attorney is mindful of the duties imposed by Rule 1.8(g). (aggregate settlement in a matter involving 2 or more clients.)

In any event, the party format was advertised as, and actually began as, “Secret Santa.” Upset with how things were going, Michael switched it to a different format.

Name the format.

Yankee Swap

Gifts

Question 5

Lawyer called me with an inquiry.  Lawyer’s questions related to Rule 1.18 (prospective clients) and Rule 3.1 (meritorious claims).  Per Lawyer:

  • Lawyer:  Mike, last week, I met with Cady Heron.  She wants to sue to expand the holiday season so that it officially begins on October 3.
  • Mike:  Wait.  What?
  • Lawyer:  Umm, exactly.  She said that’s the day that her crush, Aaron, first talked to her.
  • Mike:  Wow. I don’t know what to say.
  • Lawyer:  Well, maybe I’ll just ignore her.  I mean, she’s not very nice.  Plus, I refused to take a retainer.
  • Mike:  Because her claim is frivolous?
  • Lawyer: No.  Because she wanted to pay by credit card and I told her that I don’t take The Plastic.

Sadly, this scene didn’t make it past the cutting room floor.  Had it, I wouldn’t be here today.

Name the movie.

Mean Girls

October 3rd.jpg

Monday Morning Answers – T. Swift & T. Petty

Now I know what drives traffic – Taylor Swift!

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

Honor Roll

Answers

Question 1 – American Girl

“Well she was an American girl
Raised on promises . . .”

Later, the American girl became a lawyer and is admitted to practice in Vermont.  By rule, she has essentially promised:

  • A.  Not to disclose information related to the representation of her clients.
  • B.  Not to disclose information related to the representation of her clients, unless the information is a matter of public record.
  • C.  Not to disclose information related to the representation of her clients, unless the information falls outside the attorney-client privilege.
  • D.  Not to disclose her clients confidences and secrets.

For more on this, please see this blog post in which I discuss Rule 1.6 and its interplay with matters of privilege & matters in the public record.

Question 2 – Refugee

Lawyer represents Client in a civil matter.  Trial is scheduled for next week.  Most of Lawyer’s strategy sessions with Client have focused on Witness.  Lawyer plans to have Witness testify and offer evidence in support of Client’s claim.

Yesterday, Client said to Lawyer:

  • “We got somethin’, we both know it, we don’t talk too much about it
    Ain’t no real big secret, all the same, somehow we get around it
    Oh listen, it don’t really matter to me, baby
    You believe what you wanna believe.”

Lawyer was somewhat confused, but, having thought about it, thinks that Client might have convinced Witness to offer false evidence.  Which is most accurate?

  • A. If Lawyer reasonably believes that Witness will offer false evidence, Lawyer may refuse to offer Witness’s testimony. See, V.R.Pr.C. 3.3(a)(3).  
  • B.  Lawyer must offer Witness’s testimony.
  • C.  Lawyer must not offer Witness’s testimony.
  • D.  Lawyer must withdraw.

The key here is that Lawyer suspected, but did not know, that Client might have convinced Witness to offer false evidence.  A prudent course here would be to remonstrate with client & to make clear to Client (1) that “C” would be correct if Lawyer “knows” Witness will offer false testimony; and, (2) that if Lawyer discovers after-the-fact that Witness provided false evidence, Lawyer has a duty to take reasonable remedial measures, up to and including disclosure to the court.

Question 3 – Don’t Do Me Like ThatJammin’ Me

This is a different case than in Question 2.

Attorney informs Client that Attorney intends to file a motion to withdraw.  Client responds:

  • “Don’t do me like that
    Don’t do me like that
    Someday I might need you baby
    Don’t do me like that!”

Attorney replies “the ethics rules require me to withdraw.” Client retorts:

  • “You’re jammin’ me, you’re jammin’ me
    Quit jammin’ me
    Baby you can keep me painted in a corner
    You can walk away but it’s not over.”

Assuming that Attorney is correct and that withdrawal is mandatory, which of the following will Attorney be most likely to cite in the motion?

  • A.  Client has failed substantially to comply with the terms of the fee agreement.
  • B.  Attorney has discovered a non-waivable conflict of interest with a former client.
  • C.  The representation has been rendered unreasonably difficult by Client.
  • D.  Client insists on taking a course of action that Attorney considers repugnant.

Rule 1.16(a)(1) mandates withdrawal when continued representation will result in a violation of the rules of professional conduct.  Continuing despite a non-waivable conflict would cause Attorney to violate the rules.   Thus, B is correct.  Choices A, C, and D are instances in which withdrawal is permitted, but is not mandatory.  

Question 4 – Runnin’ Down A Dream

Continuing the scenario from the previous question, Attorney filed the motion to withdraw.  As it remained pending, stress & anxiety bedeviled Client.  Then, the court granted the motion.  Shortly thereafter, Client contacted the VBA’s Lawyer Referral Service and received a list of potential new lawyers.  Uplifted, Client called Attorney to schedule an appointment to pick up the file. Client said:

  • “I rolled on as the sky grew dark
    I put the pedal down to make some time
    There’s something good waitin’ down this road
    I’m pickin’ up whatever’s mine.”

When Client arrives, Vermont’s rule specifically requires Attorney to:

  • A.   Keep a copy of Client’s file.
  • B.   Surrender Papers & Property to which Client is entitled.
  • C.   A, B, and refund any unearned fee.
  • D.   B and refund any unearned fee.

This is Rule 1.16(d).  After complying with the rule by delivering the file, there is nothing in the rules of professional conduct that requires Attorney to keep a copy of the file.  Most carriers, however, have language in their policies that require lawyers to keep copies of a closed files for X number of years.

Question 5 – Free Fallin’

Continuing the scenario . . . Client followed through on her statement that Attorney could walk away, but it’s not over.  Before runnin’ down her dream elsewhere, Client posted a negative online review about Attorney, sued Attorney for malpractice, and filed a disciplinary complaint against Attorney.

Attorney intends to respond with:

  • “She’s a good girl, loves her mama
    Loves Jesus and America too
    She’s a good girl, crazy ’bout Elvis
    Loves horses and her boyfriend too
  • It’s a long day livin’ in Reseda
    There’s a freeway runnin’ through the yard
    And I’m a bad boy, ’cause I don’t even miss her
    I’m a bad boy for breakin’ her heart”

Assume the information in the response is true, but is not generally known.  Attorney would likely violate the rules by:

  • A.  Posting the information online, in response to the negative review.
  • B.  Incorporating the response into the defense of the malpractice complaint.
  • C.  Incorporating the response into his answer to the disciplinary complaint.
  • D.  None of the above.  No matter the forum, Client put the representation in issue.

Client is a “former client.”   Rule 1.9(c)(2) prohibits disclosure of information relating to the representation of a former client unless the rules otherwise permit disclosure.  Here, Rule 1.6(c)(3) permits B & C.  The rule is often referred to as the “self-defense exception” to the general prohibition against disclosure.  It is well-settled that the “self-defense exception” does not apply to negative online reviews.  For more, see my post Negative Online Review? What NOT to do.

swift and petty