Five for Friday #164

Welcome to #164!

Trigger warning: this post is long.  Before you hit “send” on the email to me complaining about how long, remember that nothing is stopping you from reading any further than here.

The Vermont City Marathon is Sunday.  I’m entered.  If I finish, it’ll be my 12th VCM and 21st overall.  To rest up, I’m about to turn this column over to a guest blogger.

Before I do . . .

. . . I haven’t always been a runner.

In 2006, a few of the friends I introduced to you in a blog about a long day in my basement asked me to run on their relay team in the marathon.  I agreed.  I had the good fortune of drawing the relay’s last leg: the adrenaline rush from running through a jam-packed Waterfront Park to the finish is addicting.  I’ve been hooked ever since.

Over the next two years, I built up to the full 26.2, completing my first full marathon in 2008.  The year in between? I ran on another relay team.  This time, with a team that included my good friend Jake Perkinson.

Jake is an attorney.  That’s not how I know him or why I like him.  Two of those same basement friends – Debbie & Little Sethie – used to have a post-marathon party every year.  In our younger days, we used the BBQ to pass the time between the marathon and nights at Esox that often devolved into disputes over whether dwindling dollars were better spent on another beer or another song from the bar’s fabled digital jukebox.  I met Jake at one of those post-marathon soirees.

Jake kept a diary of his training for our 2007 relay team. He sent it to us a few days after the race.  It is, beyond doubt both reasonable & unreasonable, my favorite work authored by a lawyer-runner.

With Jake’s consent – informed & confirmed in writing – I’m sharing it here today.  Jake’s self-effacing humor while recounting a foray into wellness is, itself, wellness.

Have a fantastic weekend!

Now, after too much ado, take it away Jake!



The True and Complete Diary of Pappy Perkinson’s Preparation for the 2007 Vermont City Marathon Relay Team


January 4, 2007:  Received an e-mail from Michael Moore (a/k/a Chooch) notifying friends of the impending registration deadline for the Vermont City Marathon, an event that has become a tradition among a certain circle of friends.  Feeling mildly (yet somehow pleasantly) disconnected from that circle, I reply immediately agreeing to participate.  Then, even more immediately, I put the matter out of mind for the next three months believing that the end of May will never come and, if it does, I will likely be dead anyway.  My confidence in this plan of action is so high that I dedicate no time at all to concocting the inevitably necessary excuses to use when I am forced to ultimately renege on this ill-conceived and precipitous commitment.

March 31, 2007:  A message from Chooch is left on the home answering machine requesting information to permit registration.  I studiously ignore this communication.

April 3, 2007:  While drinking a long-neck MGD and using the bottle cap to scrape the last bits of ice cream from a discarded (I believe prematurely) carton, I am informed by my wife, Cate, that I am not to make a joke out of running in the marathon.  I force myself to respond with a look of surprise mingled with hurt which causes me to choke on the bottle cap.  After performing the Heimlich maneuver on myself (Cate refusing all assistance), I tell Cate not to worry which she rightfully interprets as proof that I have no intention of making any serious effort.  Of course, she is right.

April 5, 2007:  I receive a call from Chooch regarding the particulars of registration.  After providing him with the description of a distant cousin for identification purposes, I inquire who will be on our team.  Chooch lists the runners which confirms that I am, indeed, the weakest link.  I know that even the exceedingly low expectations held for me will be impossible to meet and that no matter how low the bar is set it is a standard which I cannot achieve and which I am unwilling to attempt.  This preys on me for small parts of several days.


 April 9, 2007: 8:00 p.m.  My fear of dying on the course has gotten the better of my pride in slothfulness and I decide to go to bed at 8:30 so that I am able to get up refreshed at 5:00 a.m. to run before the children wake up and the household descends into mayhem.  To that end I carefully select my running gear and place it in an orderly pile at the top of the stairs so I can alight in the morning without disturbing my beautiful wife and children.

April 9, 2007 11:30 p.m.  I am awoken by the cries of an infant.  I pretend to still be asleep until Cate can no longer bear the noise and gets up to comfort the child at which point I act as though her movements have awakened me and roll fitfully over into the warmed-up spot on her side of the bed.

April 9, 2007 11:45 p.m.  I decide that if I am not asleep now, I will be too tired at 5:00 a.m. to do anything and turn off the alarm clock.  I fall asleep immediately.

April 11, 2007: 5:15 a.m.  I am awoken by the sounds of a high-pitched train whistle as interpreted by the deceptively powerful lungs of a three-year-old named Cyrus.  I know this means he will soon trundle his footy pajamas down to our bedroom, intentionally waking the infant on his way either by hooting loudly into her room or vigorously shaking the crib if evidence of her wakefulness is not immediately apparent.  When I hear his door open at 5:30 I leap out of bed and tell Cate that I am going for a run.

I quickly dress, feeling self-satisfied (whether about actually getting out to run or avoiding the task of dealing with two crying children at dawn I will leave to the reader’s own informed speculation).  As I step outside bracing for a cold blast of late winter wind, I am pleasantly surprised by the stillness of the air and a light humidity taking the edge off 20 degrees Fahrenheit.  Without stretching (not because I am foolish or lazy, but simply because I cannot) I begin my run.

Stepping out into the street I decide to meet this challenge head on and, rejecting the easy way, direct my feet UP hill.  As I begin, I feel I am magnificent, I am indomitable, I am supreme!  I glory in the early morning air and the feeling of the ground moving freely away beneath my feet.  A crescent moon is brightly lit in the pale gray southeastern sky, shouldering silent service as a witness to the graceful beauty of my ambulation.

And then it begins.  Twenty yards away from my house my throat dries out and after several more strides it begins to seethe as though something is trying to saw its way out of my neck using a cheese grater lubricated with battery acid.  Every breath is like swallowing a box of needles and every step is torture.  The pain induces a combination of nausea and dizziness that I have not experienced for over fifteen years absent alcoholic supplements.  In an attempt to psychologically urge myself onward I think back to my days as a youth when I reveled in the exhilaration of pushing my body to the breaking point and beyond.  And I thought to myself how stupid I was back then.

Despite the pain, I power through and, in a twist of unfathomable divine design, while my throat is a desert, my nose begins to fill with mucus.  I grimace and try to swallow to relieve the parched expanse of my throat but only choke on a bilious mixture of snot and thick saliva.  Now I am tired.  And uncomfortable.  But not defeated.  I give a stallion’s snort and hock a huge lugee with as much force as I can muster.  Unfortunately, given my physical condition, the missile barely clears my lips and plummets down the front of my sweatshirt, leaving a gray-green paisley stain.

After 200 yards I reach the top of the hill, expecting relief, only to look out from its summit at what always seemed to be a gently rising straightaway, now looming forbiddingly as a hideous and gross trick of nature.  “A hill on top of a hill!  This is bullshit,” I think to myself.  But I persevere and eventually reach the crest of this cunning confirmation of nature’s devilish duplicity.

As I approach the intersection capping this second rise I realize I have a choice to make.  I can turn now or push on for another 200 yards.  I make my decision quickly, resolving that if I go too far today, I might eliminate a goal that could otherwise motivate me tomorrow.  With a dramatic show of feigned regret, I turn my feet to the downward slope towards home.

Now my breathing is coming easier, and I concentrate on my form, keeping a four-count beat and raising my arms high.  I increase my speed and feel the wind blowing through my billowy locks.  Then, from behind, I hear the squeaking noise of rubber on asphalt and I am overtaken by a woman with graying hair outfitted in spandex pants and a knitted sweater who does not raise her hands above her hips when she runs.  As she trots past me I am given over to a surreal feeling of swimming through concrete.  I contemplate an attempt at increasing my speed, at least to keep her in sight for a minute or two, but then decide the wiser and more dignified course is to pretend I am engaged in a cool down exercise.  I consciously reduce my speed and pretend to stretch my upper body causing me to stumble and almost fall.  Realizing that any fall will crush me both mentally and physically and lead to an emotional death spiral I know I do not have the strength to recover from, I dispense with the cool-down ruse and return my full attention to running.  As I approach my house, my septuagenarian companion on this early morning run turns to climb the hill I started out on and breaks into a sprint, disappearing over the top before I reach the corner.

As I climb the steps to my house, I bend down with a monumental effort to pick up the morning paper and walk into a mudroom that on any other day sends shivers through my body with its ice-box coolness but which today feels like walking into a sauna.  I strip off my clothes, tearing at them like a madman and run a cold shower, nearly collapsing with a coughing fit before I am able to wedge myself into the stall for support.

I spend the rest of the day sweating, coughing and feeling a foreboding soreness in my lungs.  This is going to be great.  I can’t wait for tomorrow.

April 12, 2007:  1:30 a.m.  I am lying in bed, awoken once again by my own little piece of heaven fallen to earth.  As I attempt to turn over to pull the pillow over my head and drown out her nocturnal siren song I am suddenly seized with simultaneous shooting pains in my forearms, thighs, back and chest.  This fills me with a mix of emotion:  pain (obviously), but also, and to a much greater degree, relief, because here is my excuse not to go running in the morning.  My guilt wrestles momentarily with the more aggressive of my venal spirits and quickly gives up as Cate comforts the baby and I am able to fall gently back to sleep, safe in the knowledge that rest and recuperation is an important part of any training program.  I send thanks to Heaven for allowing me to formulate this rationale without the slightest strain at a moment’s notice and I am at peace with the World.

April 12, 2007:   6:30 a.m. (just after I should be finishing up my morning run) it begins to snow and the knowledge that I may likely lose another opportunity to run tomorrow briefly provides a toehold for my guilty conscience.  But, like a fantasy Battle of the Bands between Kiss and New Kids on the Block my darker angels push guilt off its precarious ledge and continue to pummel it on its woeful descent, making sure it does not ever think about getting up again.

May 2, 2007: 5:15 a.m.  The baby is visiting the bed so I am awake.  I feel strangely invigorated and lean over to whisper to my wife: “I’m going to go running.”  She responds: “I thought you were going to say you were going to get a beer.”  The baby smiles, drools and then starts crying so I shuffle down the stairs and launch another assault against Ledge Road.

This time I wisely cut off the ascent of the Ledge by detouring down Iranistan Road, still uphill, but a much gentler rise.  My lungs begin to seize and my throat provides a reprise of its past agitations by simultaneously constricting and drying out.  But not as bad as last time.  I make it about 2 miles on fairly flat streets.  When I get to the bottom of my street I break into a sprint and use my last remaining strength to reach my driveway.  As I attempt this last parry, the paper boy gives me a dirty look for holding him up.

The sprint nearly kills me and it takes a while to catch my breath.  Inside again I begin to feel ill and now have a pounding headache.  I hate Chooch.

May 22, 2007:  I realize that I am beginning to panic because I have not determined whether a five-kilometer run will kill me or not.  I start off again, gasping for air as usual, but find that after two miles I am still alive.  This is proof enough and I walk the rest of the way home.


Team I Hate Running did not finish last.  I believe I averaged 11 minutes per mile – not bad for three days of training over five months (especially considering how much I drank the day before).  Four days after the race my legs still hurt.  I can’t wait until next year.


Onto 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
  • 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

You’re at a CLE.  You are re-reading Jake’s marathon diary because it’s so awesome. Still, your brain is vaguely aware of me saying things like:

  • it must be not be unreasonable;
  • it must be reduced to a writing that is signed by the client;
  • it must state whether expenses will be deducted before or after it’s calculated; and,
  • it must be based on the outcome of the matter.  If it’s based on an offer that the client rejects, at least one state’s Supreme Court has held that it’s unethical.

What was I discussing?

Question 2

By rule, a “prospective client” is one who, in good faith, discussed with a lawyer the possibility of retaining the lawyer.  Which is most accurate?

Per the rule, the lawyer shall not represent a client:

  • A.   with interests materially adverse to the prospective client.
  • B.   with interests materially adverse to the prospective client in the same or a substantially related matter.
  • C.  with interests materially adverse to the prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to the prospective client.
  • D.  None of the above.  We’ve yet to adopt any version of the ABA Model Rule on prospective clients.

Question 3

By rule, a lawyer may not settle a claim or potential claim for malpractice with an unrepresented client or former client.

  • A.  True.
  • B.  True, unless the client gives informed consent.
  • C.  True, unless the client gives informed consent, confirmed in writing.
  • D.  True, unless the client or former client is advised in writing of the desirability of seeking and is given a reasonably opportunity to seek the advice of independent legal counsel in connection with the matter.

Question 4

Having made this confession, it pains Me to say that I’m not a big fan of Taylor Swift’s new single.  Still, in her honor, one of these things is not like the other.   Which one?

The rule that requires a lawyer to:

  • A.  keep copies of advertisements for 2 years
  • B.  keep confidential information relating to the representation of client
  • C.  keep trust account records for 6 years
  • D.  keep the lawyer’s own funds separate from client funds

Question 5

He’s back!

There’s a lawyer who used to represent a woman whose real name is Stephanie Clifford.  This week, federal prosecutors alleged that the lawyer sent a “fraudulent and unauthorized letter” to Clifford’s literary agent in order to divert approximately $300,000 intended for Ms. Clifford.  Per Manhattan U.S. Attorney Geoffrey Berman:

  • “Far from zealously representing his client, [the lawyer] as alleged, instead engaged in outright deception and theft, victimizing rather than advocating for his client.”

You likely know the client by a name other than Stephanie Clifford.

Name the lawyer.

Bonus: tell me the client’s more well-known name.

Image result for vermont city marathon

Five for Friday #118: Marathons

Editor’s Note, May 27, 2022:  Deputy State’s Attorney Heather Brochu is now Vermont Superior Judge Heather Gray.


Welcome to #118!

The number 118 will always remind me of marathons.  Here’s why.

I ran my first marathon in 2008.  My goal was to be able to say I’d run a marathon.  A few months after I finished, I decided anybody could run 1 marathon, so it’d be better to be able to say “I’ve run 2 marathons.” So, I ran another in 2009.

My goals evolved.  Next was to qualify for the Boston Marathon.  After mulitple failures, I finally did. My current goal is to finish 20 marathons. If I finish, Sunday’s Vermont City Marathon (“VCM”) will be my 20th marathon and 11th VCM.

Don’t worry – I’m about to connect this to 118.

Of the 19 marathons I’ve run, most were positive experiences.  Two exceptions: the 2013 and 2014 Boston Marathons.

2013 was my first Boston.  It was the year of the bombs. Fortunately, I’d finished well and was in my hotel when they exploded.  It was one of the saddest, most surreal days of my life.

I ran Boston again in 2014. I still don’t know whether it was food poisoning or a stomach bug, but the night before the race I came down with the runs – no pun intended.  I couldn’t go 15 minutes without needing to use the bathroom or a port-o-let on the course.  As a result, I struggled throughout, almost quit, and ended with a crappy time.

Pun intended.

My finish devastated me. I had been desperate to do well, if only to honor the 2013 victims.  Once I finished, I walked to Boston Common, sat down, and cried.  It’s the only time I’ve cried after a race and, I think, the last time I cried in my life.

That race was the 118th Boston Marathon. So, 118 (and 117 for that matter) are numbers that I’ll always associate with marathons.

Which is ironic given that the 118th quiz falls on the same weekend as VCM.

Late yesterday, I decided to send an e-mail to some Vermont lawyers who are marathoners.  I posed a few questions that, as you’ll see, are loosely connected to legal ethics.  The lawyers were incredibly kind to reply.  The questions and responses are below.  If this isn’t your thing, feel free to scroll to the quiz.

(note: not every lawyer responded to every question)

The lawyers:

  • Karen Allen, perennial member of the #fiveforfriday Honor Roll
  • Heather Brochu, Deputy State’s Attorney, Franklin County
  • Danielle Fogarty, former champ, PRB Legal Ethics Trivia Contest
  • Howard Kalfus, Hearing Officer, Vermont Judicial Bureau
  • Jordana Levine, perennial member of the #fiveforfriday Honor Roll
  • Josh Lobe, esteemed member of the Board of Bar Examiners
  • Sarah London, Assistant Attorney General
  • Rob McDougall, Assistant Attorney General
  • Walter Morris, Vermont Superior Judge

Kennedy:  In legal ethics & professional responsibility, conflicts of interest can be tricky for lawyers to navigate. With marathons, I’ve noticed several types of conflicts.  Mainly, training can conflict with life.  But, talk to me about this: how do you handle the conflict that often  arrives late in the race: the conflict between the desire to stop and the desire to fight on to the finish?

  • Judge Morris (19 marathons, including 10 or 11 VCMs): As my pace generally slows, training time becomes more and more difficult.  I have learned to be very flexible with the schedule; so, if it is going to be pouring rain on a long mid-week, or weekend run, I just go a day earlier, or a couple of days later.  This Spring has been very challenging, so there’s been lots of that.  As you know, I’m on a two-week taper, having done my 20+ about a week late. On the Grinding out the Finish, I just go into a zone and stay there.  Lots of mantras, drifty and inspiring thoughts, music in my head from the old days, etc.  For Burlington, once I hit the stretch on the bike path, there is no stopping.
  • Heather Brochu (10 marathons, 4 VCMs):  There are a few things that always help me w/my inner struggles during a race.  I try to always remember to run the mile I am in; do not think about how many miles I have to go or if the one before was a tough one.  Also, just the simple competitor in me.  I am sure this is true for all us, I do not like to give up or lose.  I know any pain I feel will subside (physical & mental). Last thing I do often, might be a little sappy, I run for those who cannot.
  • Jordana Levine (4 marathons, 1 VCM):  My challenge in the race usually comes just far enough along but not close enough to the finish, and I just tell myself that if I stop it will take longer, and to just focus on each mile, just get to that next mile marker.
  • Karen Allen (8 marathons, 3 VCMs) I ran a race where I felt incredible sharp pain in my foot, and was about to quit.  I walked a bit and the pain seemed to subside. Not sure how I finished it, all I know is that I was keeping with my pace group and my head said keep going. Not sure I felt my foot again. Anyway, injury was mile 16. Couldn’t quit. Thinking how fortunate I was that I could run.  As it turns out, I ruptured a tendon in my foot.
  • Josh Lobe (13 marathons, 6 VCMs): Not to go all choir boy, but pretty similar for me.  In practice, I always erred on the side of good ethics in any conflict situation.  Close call, don’t take the case, do the right thing, ignore the facts or whatever else arose.  Same thing in a race.  Never had a DNF or even thought about it.  (Walking, now that’s a different story).  No brainer in both cases.
  • Danielle Fogarty (5 marathons): The desire to finish without question outweighs any desire to stop.  I don’t want to stop unless I’ve finished.  So, if I’d like to stop, but am not yet finished, it all becomes mental – tuning in, man this is hard, calm down, relax, focus.  I think of form, steadiness, and all I have to do is keep going.  I tune in that this is the time to do this now … when this is over, it’s over, and I can’t go back.  This is the time to do this now, until I finish.  I hear some are anxious about whether they’ll finish.  I don’t feel anxious about whether I’ll finish … I might get anxious about the pain until I finish… but that ends, too.  I think marathon training trains our mental processes – and that definitely carries over to practicing law.  A time may come when I don’t like what I’m doing – but I tune in to hold form and finish because I can’t go back.
  • Rob McDougall (16 marathons, 3 VCMs): I just try to focus on the mile I’m running. I don’t think about how many I have to go or how many I’ve run so far.
  • Sarah London (11 marathons, 3 VCMs): If I have that thought, it is usually early in the race.  Boston is actually a good course for this – one year I thought I should quit at mile 5 and then realized that, with the roads closed to traffic, running was probably the simplest way to get back.
  • Judge Kalfus (24 marathons, 11 VCMs): I’ve run enough marathons to know three things for sure: 1) this is gonna hurt; 2) I know I can drop but I also know that the pain is for a finite time; and 3) I know that feeling of crossing the finish line after months of training and preparation.  This knowledge is what helps to resolve that conflict that I still feel every time.

Kennedy:  I often urge lawyers that the best way to avoid an ethics complaint is to set reasonable expectations at the outset of a representation.  In marathons, I’m too often not honest with myself and talk myself into unreasonable expectations.  Is that an issue for you?

  • Judge Kalfus: I have historically suffered from the opposite problem.  Growing up, I was quite literally the fat kid in the band.  When I started training for and running marathons, I thought that I was incapable of being the slightest bit competitive.  Then I met someone with my same build who was running these blistering times.  I got a coach, hit the track and started exceeding my own expectations with the coaching and support of my fellow runners.
  • Danielle Fogarty: I’m pretty steady – pretty reasonable – maybe under expecting … I feel like I’m probably safer than I need to be … I think in general my comfort zone like a high safety net.  In practice, I feel clients trust me easily and I need to be careful (not carefree) about that.
  • Josh Lobe: In about half of my marathons, I’ve set unreasonable expectations for myself with pretty much universally disastrous results.  Shockingly somehow in the other half, I set a reasonable goal was to both satisfy the goal and more or less enjoy the experience.
  • Rob McDougall: I always have a pretty good feel for what I can do from training, but so much of the race ultimately depends on “day of” stuff (how I feel, weather/temperature, food/fueling, etc.) that I don’t get too attached to any particular expectation
  • Sarah London: (Note: Sarah has actually won a marathon)  Same coin, different side?  I very rarely break the tape in any race.  Once I remember following a bike towards flashing blue lights and what i thought was police-line-do-not-cross tape and thought, why am I being directed to run right at what must be a car accident.  
  • Heather Brochu: Yes, I often set unreasonable expectations and always think I could’ve/should’ve of done better.
  • Judge Morris:  Expectations?  Just to finish, and enjoy the company.
  • Jordana Levine:  I’m too conservative, I think.  I should probably push myself more.  My goal for this year is to have a half marathon under 2 hours – I’ve been close for the past two or three years.

Kennedy: I preach that the ethical duty of competence includes tech competence.  I used to run by feel and, for years, didn’t use any sort of GPS. Now, I feel naked if I run without my Garmin.  In marathons, I have trouble not looking at my Garmin every 10 steps to make sure I’m not going too fast or slow.  I often wonder if my reliance on technology prevents me from truly enjoying the experience of running and, in a way, making me less competent as a runner.  How about you? Are you into runners’ tech or do you run more by feel?

  • Josh Lobe: I think technology enhances performance, but takes some of the fun out of it.  When I was doing a decent amount of triathlons, when I first got serious on the bike I had my cyclometer, my first generation HRM and something that gave me cadence.  I’d be riding through the beautiful Vermont Countryside and not noticing anything but a bunch of  data flashing in front of me.  I chucked all the electronics and decided to look around.  Much more scenic and safer too.
  • Rob McDougall: Tech! A Garmin watch to tell me the pace I’m running.
  • Jordana Levine:  I run with a gps watch, I think it makes me a better runner – it motivates me, keeps me focused, but also helps me run my feel – because on my mid-week runs I wear it but don’t usually look at it much.
  • Sarah London: Not sure.  One very hot marathon I came to a tall red timing clock that read 4 hours and 25 minutes and I wasn’t even halfway done.  I thought, wow I must be having a really bad day and this Garmin is way off.  Turns out that was a sign for the price of gas.  
  • Judge Morris:  Tech–that’s a no go for me, totally.  I really don’t want live feed as to how I’m doing, I try to stay in touch with my body and mind. Besides, at my stage, carrying even a few ounces of a device is a concern!
  • Judge Kalfus: I’m a tech guy.  I think that without my Garmin, I’d be standing in the middle of the race course wondering what I’m supposed to be doing.  That said, I do dream of someday becoming less compulsive about my running.
  • Heather Brochu: I love my GPS, I feel lost without it.  Not sure that is good.  Before Boston this year I read how Summer Sanders a few years ago went to start her GPS at the start of Boston and then came to the realization that her whole obsession with time was getting to Boston, not running it.  She did not start hee GPS and instead ran race for pure enjoyment.  I tried not to use GPS this Boston.  I looked it at very little and tried to run on feel and pure enjoyment, just loving the moment!
  • Karen Allen: I also feel naked when I don’t wear my GPS, but my best time was when I ran with a pace group and didn’t look at my watch. So, will I run with GPS? Yup. I will try not to look at it, but I like looking at the splits and seeing if I ran long. (editor’s note: “running long” means running further than the measured distance. usually this happens from weaving in & out of other runners, or taking turns too wide. there are LOTS of turns at VCM)

Kennedy: In Vermont, we lawyers like to say that the bar is different here – kinder, gentler if you will.  I’ve run marathons in 8 states. To me, VCM is different from other marathons: it’s way better, for many different reasons.  Most notable to me – the crowd support. Thoughts?

  • Karen Allen: VCM – although there is an excitement about running a big city marathon with 50k other runners, hometown is great. No need for arranging transportation to the start and waiting there for hours. Living 1.5 miles from the start is ideal. Running in familiar neighborhoods and seeing friends and family throughout is amazing. Oh hey- what about the lake views? Nuff said.
  • Judge Morris:  VCM is definitely kinder, gentler, than anywhere. Lots of friends and familiar faces help. But I have to say, Boston cannot be beat for the experience and the crowds.
  • Josh Lobe: Never practiced anywhere else but have read enough Grisham to get a sense of what lawyering is like in some other jurisdictions. I have run in some big law cities though.  Fully agree with your premise.  People are pretty damned nice around here whether its contested hearing or a water stop.
  • Danielle Fogarty: I haven’t run VCM… I ran the Shires in Bennington County 3 times and Boston twice.  I know I love the training camaraderie in Vermont, and the integration of running with all else in the day of life … without being intense or all important or all about ‘running.’  There’s a lot more going on.
  • Jordana Levine: I love VCM – the energy, support along the course, the course itself – it’s definitely one of my favorites; I always see people I don’t expect to see.
  • Rob McDougall: I agree.  The community and spectators really make the race fun with how they embrace and support it – especially in some of those neighborhoods along the 2nd half.
  • Heather Brochu: I absolutely love VCM definitely one of my favorites, the other favorite is of course Boston.   I am bummed not to be running VCM this year.
  • Judge Kalfus:  I agree whole-heartedly.  I’ve run marathons in six different states and in Canada.  I keep coming back to VCM not just because of the convenience, but also because of the great spectators, great scenery and the wonderful community support.

Onto the quiz!

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Even question 5!
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to
  • 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

With respect to legal ethics, which involves a different set of rules than the others?

  • A.  Net dividends
  • B.  Screening
  • C.  Overdraft Notification
  • D.  Three-Way Reconciliation

Question 2

Which doesn’t belong with the others?

  • A. a system showing all receipts & disbursements from the account
  • B. records showing all receipts & disbursements for each client
  • C. records documenting timely notice to clients of all receipts & disbursements
  • D. an approved credit card processing system

Question 3

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

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

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

Question 4

Pops & Olive divorced many years ago.  Pops is over a year in arrears on court-ordered spousal maintenance payments.

Olive asks Lawyer to represent her in a post-judgment motion to enforce the order.   She cannot afford Lawyer’s fee and asks Lawyer to take the case on a contingent fee basis.  Lawyer agrees.  You may assume that Lawyer does not have any conflicts that prohibit Lawyer from representing Olive.

Which is most accurate?

  • A.   If the contingent fee agreement is reasonable & reduced to writing, it does not violate the rules.
  • B.   Lawyer has violated the rules.  Contingent fees are banned in domestic cases.
  • C.   There will not be a violation unless or until Lawyer attempts to collect a contingent fee from Olive.
  • D.   There is no violation because it was Olive, the client, who proposed the contingent fee.

Question 5

Talk about unethical!!

In 1980, the first woman to cross the finish line at the Boston Marathon did so in what would have been the fastest time in Boston history, and third-fastest marathon in recorded history.  Alas, she was disqualified after it was determined that she’d not run the full course.  By some reports, she jumped into the race about half a mile before the finish.

Name her.


Five for Friday: Memorial Day

Welcome to the Friday that marks the unofficial beginning of summer!

There’s a lot to do this weekend.

Whatever you do, enjoy it! But, if even for just a moment, remember those who gave their lives in the service of this country.


On to the quiz!

The rules

  • There are none. It’s open book, open search engine, use whatever resource you have.  Reading the rules is a good thing!
  • Exception: Question 5.  We try to play that one honest.
  • Team entries welcome.  Creative team names encouraged.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Please e-mail answers to
  • Please do not use the “comment” feature to submit your answers (competence includes tech competence)
  • I will post the answers Monday, along with the week’s Honor Roll
  • Please consider sharing the quiz with friends
  • Hashtag & share: #fiveforfriday

Question 1

Did you think I forgot to include math in this week’s column? Ha!

Firm represents Client.  The matter settles and Firm receives an insurance check for $50,000.  Firm notifies Cient and deposits the check into trust.

Firm presents client with an accounting that indicates that Client owes Firm $15,000. Firm is prepared to disburse the remaining $35,000 to Client.

Client contends that she only owes Firm $10,000.

Assume that nobody other than Firm & Client have interests in the settlement.  Which is most accurate?

  • A.   Firm must keep the entire $50,000 in trust until the dispute is resolved.
  • B.   Firm must disburse $40,000 to Client and keep $10,000 in trust until the dispute is resolved.
  • C.   Firm must disburse $35,000 to Client and keep $15,000 in trust until the dispute is resolved.
  • D.  Firm must disburse $35,000 to Client, disburse $10,000 to Firm, and keep $5,000 in trust until the dispute is resolved.

Question 2

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

  • “The first thing the rule requires is that you not state or imply that you’re disinterested.”

Given my statement, it’s most likely that Attorney called to discuss:

  • A.  A supboena to testify about a former client’s matter
  • B.  A prospective client who met with, but did not retain Attorney
  • C.  A request from an unrepresented person to meet with Attorney to provide information related to a client’s matter
  • D.  Serving on a jury

Question 3

Lawyer represents Emmit in a dispute with a government agency.  Lawyer learns that the agency interprets a regulation in a particular way.

Lawyer also represents Ray.  Ray is involved in a dispute with the same government agency, one that involves the same regulation.

Which is most accurate?

  • A.   Absent Emmit’s consent, Lawyer may not use the agency’s interpretation to help Ray and, therefore, must withdraw from Ray’s matter.
  • B.   Unless the agency’s interpretation is a matter of public record, Lawyer may not use the interpretation to assist Ray and, therefore, must withdraw from Ray’s matter.
  • C.  If the two matters are the same or substantially related, Lawyer may use anything that he learns while representing Emmit to help Ray.
  • D.  If it would not disadvantage Emmit to do so, Lawyer may use the agency’s interpretation of the regulation to help Ray.

Question 4

Of the following, one has not traditionally been treated as a rules violation, viewed instead as a mistake that does not rise to the level of an ethics violation.  In my opinion, that should soon change, and the conduct should be considered a violation of the rules.

  • A.   Withdrawing because a client calls or e-mails too often
  • B.    An associate acting at the express direction of a supervising partner
  • C.   Falling for a common trust account scam
  • D.   Representing a client who is adverse to a former client on the theory that “I don’t remember anything about the former client’s case.”

Question 5

Somewhat of a dichotomy given the weekend . . .

This lawyer collapsed and died of a heart attack near his Washington, D.C. home in 1988.  He was buried with full military honors in Arlington National Cemetery – in part because of his service in the U.S. Navy World War II, and in part because he once held a cabinet position.  The cabinet position: Attorney General of the United States.

In 1976, the lawyer was disbarred by the State of New York as a result of having been convicted of crimes that took place while he served as U.S. Attorney General.

Name the lawyer.




Five for Friday: Week 26

How fitting!  Week 26 coincides with the Vermont City Marathon.  Many lawyers are in the race, including the chair of the VBA’s Young Lawyers Division, Gavin Boyles. If you’re running, have fun, but be smart! It’s going to be a hot one.

And for those of you wondering why it’s fitting that week 26 falls on marathon weekend, a marathon is 26.2 miles.  In fact, ALL marathons are 26.2 miles.  Why?  The Greeks, the Persians, and Queen Alexandra.  It makes me laugh when someone asks “you’re running another marathon? how far is this one?”


……quick recap of the rules:  there are none.  Open book, open link-to-the-rules, text-a-friend, or walk down to a colleague’s office and have what we used to call “a conversation.”  Also, I introduced a new twist last week: the team entry.  A group from Barr Sternberg was the first to take me up on the offer and made the Honor Roll.

Exception to rule that there are no rules: we try to play it honest on Question 5.

Email answers to me at and please forward this to friends and colleagues and encourage them to enter, perhaps as part of your new team.

Question 1

An advisory ethics opinion issued in New Jersey raised eyebrows this week.  The opinion noted that lawyers may make mention of X only if the basis for X “can be verified” and “adequate inquiry into the fitness of the individual lawyer” was made.

Generally, X falls under which topic in legal ethics?

  • A.   Bar Admissions
  • B.   Referrals/Fee Sharing
  • C.   Advertising
  • D.   Sanctions in a disciplinary case

Question 2

What do the rules require lawyers to keep for 6 years following the termination of a representation?

  • A.  Trust account records
  • B.  A copy of the representation agreement
  • C.  A copy of the representation agreement, but only in contingent fee cases
  • D.  The file

Question 3

What is the phrase used to describe a business organization that offers clients a range of professional services?  For instance a business that offers its clients both accounting services & legal services, or both family counseling services & legal services.

Question 4

Lawyer call me with an inquiry. We talked about an arbitration scheduled to take place in Burlington in early June.  I said “the underlying case…is it reasonably related to, or does it arise out of, Massachusetts?”

What general concern did Lawyer call to discuss?

Question 5

Two different lawyers who served as Vice-President of the United States have been disbarred. One served as the other’s Vice-President.

For one point each, who are they?