Happy Monday!
Friday’s questions are here. The answers follow today’s Honor Roll.
Honor Roll
- Penny Benelli, Dakin & Benelli
- Amy Butler, Amy Butler Law
- Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labor
- Heather Devine, Tarrant Gillies Shems
- Benjamin Gould, Paul Frank + Collins
- Bob Grundstein
- Margo Howland, Esq.
- Glenn Jarrett, Jarrett/Hoyt
- Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
- Douglas Keehn, Assistant Attorney General, Medicaid Fraud & Residential Abuse Unit
- Jeanne Kennedy, JB Kennedy Associates, Mother of the Blogger
- Patrick Kennedy, Amazon Web Services, The First Brother
- Cassandra Larae-Perez, Gravel & Shea
- Andrew Manitsky, Lynn, Lynn, Blackman & Manitsky, Immediate Past-President, VBA
- Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
- Hal Miller, First American Title, Hawaii State Counsel
- Herb Ogden, Esq.
- Patrick Olmstead, Patrick Olmstead Law
- Christopher Perkett, OP Law
- Keith Roberts, Darby Kolter & Roberts
- Joseph Strain, Marsicovetere & Levine
- Jonathan Teller-Elsberg, Staff Attorney, New Hampshire Legal Assistance
- Jason Warfield, Jason Warfield Family Law & Mediation
- Thomas Wilkinson, Jr., Cozen O’Connor
ANSWERS
Question 1
Lawyer called me with an inquiry. In my response, I urged the Lawyer to consider “3-way reconciliation.” It’s most likely that Lawyer called to discuss:
- A. A conflict that arose between an insurance company and the insured.
- B. A conflict that arose when representing both spouses in a collaborative divorce.
- C. A conflict that arose when representing both buyer & seller in the same transaction.
- D. Trust account management. Three-way reconciliation is a process by which the trust account is balanced by comparing the trust ledger, individual client ledgers, and the bank statement. There are many online sources that describe how to perform a three-way reconciliation. I suggest researching them.
Question 2
Client files a disciplinary complaint against Lawyer. The complaint is screened and referred to Disciplinary Counsel for an investigation. Lawyer calls me and asks whether it would be okay to refund Client’s fee in exchange for Client’s agreement to withdraw the complaint. Most likely, my reply will be:
- A. Good idea, as long as you advise Client to seek independent legal advice about the proposal.
- B. Good idea, as long as you give Client a chance to discuss the proposal with disciplinary counsel.
- C. Bad idea. In most jurisdictions, asking a client to withdraw a disciplinary complaint is considered to be an ethics violation, even if the complaint is without merit. Specifically, many states have concluded that it violates Rule 8.4(d)’s prohibition against conduct that is prejudicial to the administration of justice. Indeed, in 1992, a Vermont lawyer was admonished for attempting to condition settlement of a malpractice claim on the former client’s agreement not to file a disciplinary complaint. The decision is here. Two years later, another Vermont attorney was sanctioned for similar conduct. The attorney represented a lawyer in a malpractice case. The attorney attempted to condition settlement on the lawyer’s former client’s agreement not to file a disciplinary complaint. The sanction was issued even though it was clear that any disciplinary complaint would have been frivolous. The decision is here. Finally, Rule 20(H) of Supreme Court Administrative Order 9 states “Neither unwillingness nor neglect of the complainant to sign a complaint nor to prosecute a charge, nor settlement, nor compromise between the complainant and the lawyer, nor restitution by the lawyer shall, in itself, justify abatement of the processing of any complaint.”
- D. It depends. What does Client’s complaint allege that you did?
Question 3
Do the Vermont Rules of Professional Conduct specifically prohibit a lawyer from asking a client to waive a conflict that might arise in the future?
- A. Yes. And a comment to the rule indicates that “it is not possible for a client to give informed consent to waive a conflict that has not yet arisen.”
- B. No. And a comment to the rule indicates that “the effectiveness of such waivers is generally determined by the extent to which the client reasonably understands the material risks that the waiver entails.” See, V.R.Pr.C. 1.7, Cmt. [21].
Question 4
Attorney represents Client. Attorney knows that Opposing Party is represented by counsel. Client informs Attorney that Client intends to discuss resolution of the matter directly with Opposing Party. Client asks for advice on framing the discussion.
May Attorney provide the advice?
- A. Yes, without limitation.
- B. Yes, but only after informing Opposing Party’s lawyer that Client intends to communicate directly with Opposing Party.
- C. Yes, but most bar counsel types believe that Attorney should not “script” the conversation or advise Client “to parrot” Attorney’s words. See, this blog post.
- D. No.
Question 5
In September, I presented a CLE for a group of Intellectual Property lawyers. The practice area is probably the one in which I feel most incompetent to present.
That said, IP law often intrigues & entertains me. For example, here’s my post on Taco Bell’s petition to cancel another restaurant’s “Taco Tuesday” mark. More recently, the ABA Journal has this article about the law firm that filed a motion to dismiss on behalf of a client, copyrighted the motion, and then sued the firm that represents a co-defendant for copyright infringement. The first firm alleges that the second filed a motion to dismiss that has a “striking resemblance” to and repeats “nearly verbatim” the copyrighted motion.
Yes – you read that correctly. A law firm copyrighted a motion that it filed.
Anyhow, over the years, I’ve managed to pick up some of IP Law’s basic terms. One is “public domain.” Basically, material that isn’t protected by copyright, mark, or patent is in the “public domain” and free for anyone to use.
This week, a gigantic corporation’s copyright expired. The copyright was to a famous character who was introduced in a short film that debuted in 1928. As a result, the character (at least as depicted in the short film) is now in the “public domain.” According to one report, since the copyright expired, a trailer for a horror movie featuring the character has been released and “digital creators” have edited the short film to make it appear as if the character is swearing.
Name the character and the short film in which the character was introduced.
Mickey Mouse & Steamboat Willie
Among others, The Verge, Financial Times, and Yahoo! Entertainment have coverage.