Five for Friday #170

Welcome to Friday!

I’m in a bit of a blogging hiatus, so I’m ditching the normal intro.  However, two matters deserve mention.

First, today is an important anniversary.  57 years ago tonight, a band played its first concert.  As noted by udiscovermusic, here’s how London’s Jazz News previewed the event:

  • “Mick Jagger, R&B vocalist, is taking an R&B group into the Marquee tomorrow night, while Blues Incorporated do their Jazz Club gig. Called The Rollin’ Stones. The line-up is: Mick Jagger (vocals), Keith Richards & Elmo Lewis (guitars), Dick Taylor (bass), Ian Stewart (piano), & Mick Avory (drums).”

I mention this because no blog I’ve posted generated more controversy than this one in which I expressed my preference for the Stones over The Beatles.

Second, an even more important anniversary took place two days ago: the anniversary of my mom’s birth!  She’s a regular member of the Five for Friday Honor Roll.  My blog about her life is here.  Happy birthday Mom!

PS:  my mom’s sons will officially mark her birthday at brunch this Sunday morning.  Some might call us too lazy to have gotten our act together in time for her birthday.  However, others might long for friends & family who, like Patrick and I, stretch others’ birthdays into week-long celebrations.

Onto the quiz!

the-quiz

  • 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

How long must a lawyer keep records of funds that belonged to clients or third persons and that the lawyer held in connection with a representation?

  • A.   6 years from the termination of the representation.
  • B.   The rules are silent on this issue.

Question 2

The following are exceptions to a particular rule.

  • to establish a claim or defense in a controversy between the lawyer and client;
  • to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved; or,
  • to respond to allegations in any proceeding concerning the lawyer’s representation of the client.

Generally, what does the rule prohibit?

Question 3

Lawyer represents Client.   Lawyer calls Witness to testify.   Witness completed his testimony and the court recessed for the day.  Preparing for the next day of trial, Lawyer comes to realize that Witness offered material evidence that was false.

Which is most accurate?

  • A.   Lawyer must take reasonable remedial measures.
  • B.   Lawyer need not correct the record since it was Witness and not Client.
  • C.   Lawyer’s duties are different depending on whether the case is criminal or civil.
  • D.  Lawyer must withdraw.

Question 4

Lawyer called me with an inquiry.  I listened, then said, “it’s okay as long as it does not imply a connection with a government agency or public or charitable legal services organization and is not otherwise false or misleading.”

What did Lawyer call to discuss?

  • A.    Using a trade name as a firm name.
  • B.    Organizing a pro bono clinic staffed by volunteer lawyers.
  • C.    Using an undercover investigator.
  • D.   Conflicts of interest that arise when moving to & from government practice.

Question 5

As readers know, I’m a huge proponent of attorney well-being and finding interests outside the law.  For me, I love running.

Earlier this week, an assistant public defender had to undergo emergency surgery after suffering a serious injury while taking a selfie as he participated in a famous “running” event.  Here’s what one of his co-workers said to the press:

  • “As an office we encourage our employees to pursue outside interests and explore their passions.  For many it’s traveling, and we think such pursuits are critical to the general wellness of our entire . We are relieved the incident was not more serious and we are looking forward to [the lawyer’s] return.”

Name the “running” event that the lawyer was participating in when he was injured.

 

 

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

 

Monday Morning Answers: Beatles v. Stones

Mystery solved.

  • Mystery:  what can I blog about that will cause lawyers to respond?
  • Solution:  Assert that the Stones are better than the Beatles.

The responses were fantastic!  My non-scientific analysis:

  • 1/3 flat out disagreed with me
  • 1/3 disagreed, but argued that there’s room to like both bands
  • 1/3 agreed

Even within the final group, the responses revealed an affinity for Their Satanic Majesties Request that took me by surprise. Also, within my readership, there’s a healthy undercurrent of support for the The Kinks as being as important to the British Invasion as both the Beatles and Stones.

In any event, I love when lawyers argue passionately about an issue that has nothing to dow with the law. Indeed, one of the goals behind this blog is to demonstrate that we’re much more than the stereotype of our profession.  Readers:  you responses to Friday’s blog proved beyond a reasonable doubt that we are.  Thank you!

Stay tuned – I’m toying with the idea of a turning Friday’s debate into a moot court argument that I’ll use as a fundraiser.  And I already have an excellent idea of who will represent each side!

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

Honor Roll

Answers

  • Easiest:  Question 1
  • Most difficult: Question 5
  • Most difficult in ethics:  Question 2

There’s a rule that imposes “special responsibilities” upon:

  • A.  Prosecutors; Rule 3.8
  • B.  Judges
  • C.  Juvenile defenders
  • D.  Real estate lawyers who also sell title insurance

Question 2

The “self-defense” exception to Rule 1.6 is often discussed with respect to:

  • A.  Disclosing a client’s intent to commit a crime
  • B.  Disclosing a client’s past commission of a crime
  • C.  Responding to a client’s negative online review; See this blog post.
  • D.  Withdrawing from a matter to keep from violating the ethics rules

Question 3

Which is most accurate?

  • A.  A fee violates the prohibition on unreasonable fees only if it is collected
  • B.  Vermont’s rules require lawyers to self-report violations of the rules
  • C.  A comment to the rule on conflicts of interest with a former client suggests that the rule does not apply if 10 years have passed since the prior representation.
  • D.  A lawyer must deliver the file upon the termination of the representation.  Rule 1.16(d).

Question 4

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

“If you reasonably believe Client is telling you the truth, you can disclose it to the police or his family or someone who can help.  You don’t have to disclose, but you aren’t prohibited from disclosing.”

What did Attorney learn from or about Client that prompted Attorney to call me?

Attorney learned that Client intended to commit an act that is likely to result in death or substantial bodily harm to Client.  See, Rule 1.6(c)(1); Comment [10].

Question 5

With a hidden shout out to regular reader, here’s this week’s question 5:

This week, I’ve had the opportunity to speak with two fantastic groups of lawyers: the state’s prosecutors and the state’s public defenders.  You can’t swing a dead cat in Vermont’s criminal courts without hitting a dedicated, competent public service attorney.  To each group, thank you for all that you do.

Prosecutors and defense attorneys often ask me about Rule 3.8 and a prosecutor’s Brady obligations.  As most of you know, Brady v. Maryland involved a prosecutor’s decision to withhold potentially exculpatory information.

What specific item of evidentiary value to the defense did the Brady prosecutor fail to disclose?

A co-defendant’s written statement that the co-defendant acted alone.

Pepper

 

Five for Friday: Beatles v. Stones

Welcome to Five for Friday!

Before the quiz, I am compelled to address my readers who have The Beatles on their brains.

Several contacted me this week to ask if the pop culture slant to #fiveforfriday would honor today’s 50th Anniversary of The Beatles U.S. release of Sgt. Pepper’s Lonely Hearts Club Band.

It will, but for reasons you’d never guess.

As should be obvious to long-time readers, I grew up a Stones fan. In my mind, the bands are Red Sox & Yankees, Sharks & Jets, Edward & Jacob.  I’ve adhered to the code of rivalries, rarely, if ever, playing a Beatles 45, 33, cassette, or CD.  I certainly have never downloaded a single of their songs, a boycott that dates to my days as what felt like the only Gen X kid without the obligatory poster of the Abbey Road album cover hanging in his dorm room.

I often blog about Rule 1.1’s duty of competence.  Six months after The Beatles released Pepper, the Stones released Their Satanic Majesties Request.  Terrible album!  Mick and company probably violated the rock equivalent of Rule 1.1 by trying to sound like the Beatles on Pepper.  Fortunately, the Stones quickly returned to their roots.

In order, their albums that followed Satanic Majesties:

Are you f’ing kidding me?!?! Hammer don’t hurt ’em!

So, 70 years after Sgt. Pepper taught the band to play, thank you Beatles for setting the Stones on the path to the most competent run of album releases in recorded history! With “competent” meaning “spectaculary fantastic.”

On to the quiz!

Rules

  • There are none. Open book, open search engine, text a friend. Use whatever resource you want. Reading the rules is a good thing!
  • Exception: Question 5.  We try to play that one honest.
  • Team entries welcome! Creative team names even more welcome!
  • Please share the quiz, even on social media  #fiveforfriday
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Please e-mail answers to michael.kennedy@vermont.gov Please do not use the “comment” feature to send your answers.
  • I will post the answers and Honor Roll on Monday
  • Might not be valid at all locations. All terms & conditions apply.  Void in AK and HI.

Question 1

There’s a rule that imposes “special responsibilities” upon:

  • A.  Prosecutors
  • B.  Judges
  • C.  Juvenile defenders
  • D.  Real estate lawyers who also sell title insurance

Question 2

The “self-defense” exception to Rule 1.6 is often discussed with respect to:

  • A.  Disclosing a client’s intent to commit a crime
  • B.  Disclosing a client’s past commission of a crime
  • C.  Responding to a client’s negative online review
  • D.  Withdrawing from a matter to keep from violating the ethics rules

Question 3

Which is most accurate?

  • A.  A fee violates the prohibition on unreasonable fees only if it is collected
  • B.  Vermont’s rules require lawyers to self-report violations of the rules
  • C.  A comment to the rule on conflicts of interest with a former client suggests that the rule does not apply if 10 years have passed since the prior representation.
  • D.  A lawyer must deliver the file upon the termination of the representation.

Question 4

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

“If you reasonably believe Client is telling you the truth, you can disclose it to the police or his family or someone who can help.  You don’t have to disclose, but you aren’t prohibited from disclosing.”

What did Attorney learn from or about Client that prompted Attorney to call me?

Question 5

With a hidden shout out to regular reader, here’s this week’s question 5:

This week, I’ve had the opportunity to speak with two fantastic groups of lawyers: the state’s prosecutors and the state’s public defenders.  You can’t swing a dead cat in Vermont’s criminal courts without hitting a dedicated, competent public service attorney.  To each group, thank you for all that you do.

Prosecutors and defense attorneys often ask me about Rule 3.8 and a prosecutor’s Brady obligations.  As most of you know, Brady v. Maryland involved a prosecutor’s decision to withhold potentially exculpatory information.

What specific item of evidentiary value to the defense did the Brady prosecutor fail to disclose?

Stones