Monday Morning Honors

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

HONOR ROLL

ANSWERS

Question 1

Person calls Lawyer.  Person tells Lawyer “I have an attorney, but I’d like a second opinion.”  Lawyer is not otherwise involved in the matter in which Person has an attorney.

True or False?

Lawyer must not discuss the matter with Person unless Person’s attorney consents.

FALSE.  Per Rule 4.2, while representing a client in a matter, a lawyer shall not communicate on the subject of representation with another person who the lawyer knows is represented in the matter.  A sentence in Comment [4] states that “this rule [does not] preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter.”  The Reporter’s Note to the 2009 Amendment to Comment [4] “clarifies that Rule 4.2 does not preclude communication from a represented person who is seeking a second opinion from a lawyer who is not representing a person in the matter.”

Question 2

Absent a written agreement between Lawyer & Client saying it will be treated otherwise, a flat fee paid in advance of any services being performed by Lawyer ____________:

  • A. must be deposited into trust.
  • B.  must not be deposited into trust.
  • C.  violates the rules.
  • D.  None of the above.

Rule 1.15(c) requires fees paid in advance to be deposited in trust until earned.  The only exception is a fee that the lawyer & client have agreed to treat as earned upon receipt and that has been memorialized as required by Rule 1.5(f). I discuss the distinction in this CLE videoFlat Fees, Misappropriation & Trust Account Scams (35 minutes).

Question 3

Last month, Person met with Lawyer to discuss the possibility of forming a lawyer-client relationship.  It was their only meeting or conversation.  Last week, Person informed Lawyer that Person has decided not to retain Lawyer and will retain another attorney. You may assume that Person met with Lawyer in good faith.

Which is most accurate?

  • A.  Lawyer is not bound to keep Person’s confidences.
  • B.  Lawyer owes the same duty of confidentiality as would be owed to any current or former client.
  • C.  The rules do not address this situation.  The rules refer only to duties owed to clients who form professional relationships with lawyers.
  • D.  That consultation better have been virtual!

Per Rule 1.18(b), “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 otherwise permitted or requied by the confidentiality rules that apply to current and former clients.

Question 4

For conflicts purposes, which do the rules treat differently than the others?

  • A.  a former client conflict that arises when Lawyer moves from private practice to government practice.
  • B.  a former client conflict that arises when Lawyer moves from government practice to practice.
  • C.  a conflict that arises from a Lawyer’s personal interest that would not create a significant risk of materially limiting the representation if handled by another attorney in Lawyer’s firm
  • D.  The rules treat each the same. None is imputed to the other lawyers in Lawyer’s firm/office.

For A & B, Rule 1.11 permits screening when lawyers move to and from government practice.  Option C is direct from Rule 1.10(a), the rule that otherwise imputes conflicts to all members of the affected lawyer’s firm.

Question 5

This is my personal all-time favorite and is my only concession to 200 being anything other than something.  There’s a hint into the intro.

It’s a good thing Michael Scott isn’t a lawyer.  In an episode of The Office, Michael ran over a co-worker in the company parking lot. He was driving a company car. When asked by an HR rep if the accident happened on company property, Michael replied:

  • On company property, with company property.”

Then, citing to the Bill of Rights, Michael said So . . .  we’re fine.”

What legal theory found in the Bill of Rights did Michael mistakenly think rendered him and the company “fine?”

DOUBLE JEOPARDY.  Then after Toby remarks that he doesn’t think Michael understands how this works, Michael adds “I’m sorry.  What is Double Jeopardy?”

No don't sue me that's exactly the point I'm trying not to make ...

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.

 

 

 

Five for Friday #178

Welcome to Friday.

WordPress saves drafts.  I just deleted two that I’d authored, but not posted.

I awoke very early this morning.  Sadly, it wasn’t long after waking that I realized I’d forgotten to buy coffee last night.  Thus, I was stuck with brewing the decaf that I keep on hand for when my dad visits.  I drank it while I drafted the blog posts.  Unlike my coffee, each seemed good in the moment.

The first worked “178” into a blog that referenced Luke Bryan, tonight’s Flynn Theatre performance of a musical that parodies The Office, Major Jon Andre, El Camino (the Breaking Bad movie that dropped today), tomorrow’s Dartmouth v. Yale football game, hot dogs, my mom, a half marathon in Concord, and a high school basketball game that I coached in 2009.

Whoa!  That must be an awesome blog post!

Maybe. But it also included at least one paragraph that was too witty for its own good and another that a psychoanalyst might tell you reflected a passive-aggressive effort to get fired.

The second tied “178” to a description of how it sometimes troubles me that I don’t have the courage to leave this job and try something new.  A thing at which – at least in the comfortable courage of my imagination over a beer in my garage – I courageously excel.

Whoa! What an uplifting post Mike!

With the two posts drafted, I left to shower and contemplate which to publicize.

For the entire shower – which, with my hairline, wasn’t long – something didn’t feel right.  My brain kept saying “don’t post either.” The nagging inner voice reminded me of advice I’ve given to attorneys.

At CLEs, I often urge lawyers to trust their guts.  If it feels like a conflict, it probably is.  If your inner voice is telling you that you should withdraw, you probably should.  Countless ethics inquiries end with a lawyer telling me “I thought that was the answer but needed to hear it from someone else.” Hey lawyers – trust yourselves! You’re usually right!

So, I decided to take my own advice and trust my inner voice.  Back at the kitchen counter, I deleted each of the drafts.

They say some things are better left unsaid.  They’re right.

But enough of this Irish melancholy!

The sun is shining, the foliage is peaking, and it’s not freezing.  That’s a recipe for a fantastic weekend.  I hope you get out to enjoy it!

I plan to.  I’m on the fence about The Office musical.  However, I intend to watch El Camino, get a hot dog with my mom at tomorrow’s Dartmouth-Yale game, and run a half marathon in Concord on Sunday.

And, without a doubt, come next week, I’ll be here.

Thanks for listening.

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?   A lawyer:

  • A.  may have sexual relations with a client.
  • B.  may have sexual relations with a client, but only if the relationship doesn’t cause the lawyer to violate the rules (for instance, by creating a conflict of interest).
  • C.  shall not have sexual relations with a client.
  • D.  shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.

Question 2

One of the Rules of Professional Conduct requires a lawyer to maintain a system that includes “records documenting timely notice” to clients of receipts and disbursements from trust.  The same rule requires a lawyer to do something else in a “timely” fashion.  What?

  • A.   reconcile a trust account.
  • B.   self-report a trust account overdraft to disciplinary counsel.
  • C.   pay into court funds in which a client & third person claim interests
  • D.  All of the above.

Question 3

Lawyer called with an inquiry.  My response:

  • “Basically, don’t state or imply that you’re disinterested.  Correct any misunderstanding she has about your role.  And if her interests are likely to conflict with your client’s, don’t give her any advice other than the advice to secure counsel.”

Most likely, who is the “she/her” in my response?

  • A.   Another of Lawyer’s clients
  • B.   Lawyer’s former client
  • C.   An unrepresented person with whom Lawyer is dealing on behalf of a client
  • D.  a prospective juror

Question 4

Fill in the blank.

Per Comment [1] to a particular rule:

“_________________   partially true but misleading statements or omissions that are the equivalent of affirmative false statements.”

  • A.    A lawyer does not violate this rule by making . . .
  • B.    Misrepresentations can also occur by . . . .
  • C.    Negotiations necessarily include . . .
  • D.    According to my dad, Lawyers excel at making  . . .

Question 5

In honor of Breaking Bad and the release of El Camino:

Breaking Bad aired for 5 seasons.  The first episode of each season included a “flash forward” scene set in a restaurant.  The restaurant is where Saul Goodman/Jimmy MGill ends up working under an assumed identity after fleeing drug-dealing Neo-Nazi assassins, his law firm, and (presumably) New Mexico’s disciplinary authorities.

In real-life, the restaurant is a massive chain often found in malls and airports.  It specializes in sugary rolls, coffee, and frozen drinks.  My favorite is in the Charlotte (NC) airport.

Name the restaurant.

Image result for el camino movie

Monday Morning Answers #143

Welcome to Monday!

Friday’s holiday-themed questions are here.  The answers follow today’s honor roll.

Honor Roll

Answers

Question 1

You represent George.  He is concerned that his elderly father has been acting irrational and has come to you for advice on a potential involuntary guardianship.  George informs you that he’s been worried for months, but that the last straw was when his father challenged him to a fight during the “feats of strength” aspect of the family’s recent holiday celebration.

For now, the information relating to your representation of George is protected by Rule 1.6.  Including the holiday.  But in order to protect it, you have to know what it is.  What holiday were George and his father celebrating?

FESTIVUS

See the source image

Question 2

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?

Bumble The Abominable Snow Monster

See the source image

Question 3

Attorney is a public defender.  She’s been assigned to represent Willie T. Stokes.  Willie is a con man. He and a co-defendant, Marcus “Elf” Skidmore, have been charged with staging elaborate robberies of department stores the past several Christmas Eves.

Marcus asks Attorney to represent him too.  Attorney is mindful of Comments 29-33 to Rule 1.7: the comments that discuss the ethics of “common representation.”

Yet, just as she starts to re-read the comments, Attorney wakes up. It was all a dream!  She doesn’t really represent Willie T. Stokes, he’s a fictional character!

What movie must Attorney have watched before she fell asleep?

BAD SANTA

See the source image

Question 4

One of my favorite unethical fictional lawyers is Barry Zuckerkorn.  He’s the Bluth family’s incompetent lawyer in Arrested Development. Zuckerkorn is played by Henry Winkler who, of course, also played Arthur Fonzarelli in Happy Days.

Speaking of Fonzie, there’s a well-known holiday song that includes the follow lyrics:

Guess who eats together at the Carnegie Deli

Bowzer fro Sha Na Na and Arthur Fonzarelli”

Name the song.

The Chanukah Song, Adam Sandler

See the source image

Question 5

Michael consults Attorney for advice. Michael wants to know whether he has any recourse against employees who, in Michael’s opinion, did not buy sufficiently nice gifts for the office’s “Secret Santa” party, a party that Michael turned into a “Yankee Swap” after receiving an oven mitt from his secret santa.  Michael complains that the gift he received was cheap compared to the one he bought.  The one he bought cost $400 and was intended to Ryan.

Mindful of my advice that a good way to avoid disciplinary complaints is to manage client expectations, Attorney candidly tells Michael that he has no claim. The rules of the Yankee Swap were clear: spend no more $20.  Michael assumed the risk by spending more.

 

Part 1:  What did Michael buy?

Part 2:  Who ended up with the $400 item that Michael intended for Ryan?

In Christmas Party (The Office)Michael Scott bought a video iPod that he intended for Ryan Howard. Pam Beesley ended up with it, but then traded it to Dwight Schrute for the teapot that Jim Halpert meant for Pam.

See the source image

 

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