Five for Friday #192

Happy Friday!

Today I choose to look on the bright side:  it might be cold, but the sun is out and, well, at least it’s a dry cold!

Looking for topics for today’s intro, I found an intriguing connection involving today’s date.

On February 21, 1975, John Mitchell, John Erhlichman and H.R. Haldeman were sentenced to prison after having been convicted of crimes committed during the Watergate scandal.

I was 7 years old at the time.  This morning, it struck me at how little I know.

Of course, having mentioned it at several seminars, I’m aware of the impact that Watergate had on legal ethics & professional responsibility.  As the ABA Journal notes here, the scandal resulted in both the profession’s move to the Model Rules of Professional Conduct and the requirement that lawyers pass the MPRE to be admitted.  Still, if you’d have told me this morning that two of Mitchell, Erhlichman and Haldeman were lawyers, I’d have gotten Mitchell, but it would’ve been a coin flip as to the other. *

Also, today is Barbara Jordan’s birthday.

Image result for barbara jordan

I didn’t know that until Google informed me this morning.  Frankly, while generally aware that Jordan served in Congress, I had no idea of her place in history. Among other notable accomplishments, Jordan was the first African-American woman elected to the Texas Senate and the first African-American from a southern state elected to the United States House of Representatives.

In addition, Jordan was a lawyer.  Not just any old lawyer, but a skilled orator.  According to American Rhetoric, Jordan gave two of the top 100 speeches of the 20th century.  Talk about satisfying the duty of competence!

Per American Rhetoric, Jordan’s Keynote Address to the 1976 Democratic National Convention was #5. The other?  Well, to me, it’s a speech that makes for the intriguing connection between February 21, Jordan, and Watergate.

The speech is called Statement on the Articles of Impeachment.  It was the opening statement to the House Judiciary Committee as it considered whether to impeach President Nixon.  It came in as American Rhetoric’s 13th most important speech of the last century.

I find it incredibly intriguing that an event that had such a profound impact on legal ethics & professional responsibility has not one, but two ties to February 21. As for a larger point, I don’t think I have one.  Still, I opened this post by referring to the weather and choosing to focus on the brighter side, so I’ll close by doing the same.

Yes, I will continue to reference Watergate when I speak on the history of legal ethics and professional responsibility.  I will reiterate that at least 13 lawyers were disbarred or suspended and that 11 were convicted of crimes.  However, going forward, I will now be sure to mention the brighter side: Barbara Jordan and her contributions not only to the legal profession, but to society.

Choose the bright side.

*It was Erhlichman.

Onto the quiz!

Question 1

In Vermont, if a lawyer is precluded from representing a client due to a conflict with another client or a former client, the general rule is that the conflict ___________ imputed to other lawyers in the same firm.

  • A.  is
  • B.  is not

Question 2

There’s a rule that requires lawyers to provide clients with diligent and prompt representation.  A comment to the rule suggests that a sole practitioner’s duty of diligence may include _____________:

  • A.   paying a bookkeeper to reconcile the trust account
  • B.   transitioning to a cloud-based practice management system
  • C.  adopting a succession plan
  • D.  all the above

Question 3

Attorney & Lawyer both represent Client in the same matter, but do not work in the same firm.  Client agrees that they may share in the fee.  Client’s agreement is in writing and the total fee is reasonable.

True or False:  for the fee division to comply with the rule, it must be in proportion to the services that each performed.

Question 4

This question is probably not fair. But I’m out of ideas, running out of time, and, further, it’s an issue I think we’ll soon be discussing.

Client asks whether you use “cold storage” or a “hot wallet.”  Client assumes you accept payment via:

  • A.  Venmo
  • B.  ACH Transfer
  • C.  Blockchain
  • D.  Cryptocurrency

Question 5

Legal ethics in the news again!

There’s a rule on trial publicity.  Generally, it prohibits extrajudicial statements that a lawyer knows or should know will have a substantial likelihood of materially predjucing a proceeding.  There’s also a rule that prohibits ex parte communications with jurors.

Donna Rotunno is an attorney who is currently representing a client in a high-profile criminal trial.  The case went to the jury on Tuesday, two days after Newsweek published an opinion piece authored by Rotunno. In it, she wrote:

“I implore the members of this jury to do what they know is right and was expected of them from the moment they were called upon to serve their civic duty in a court of law.”

The prosecutor called the opinion piece “completely, 100% inappropriate behavior. It borders on tampering with the jury.”  Imposing a gag order, the presiding judge said:

Defense team you are ordered to refrain from communicating with the press until there is a verdict in the case.  I would caution you about the tentacles of your public relations juggernaut.

Who is Attorney Rotunno’s client in the case?

Monday Morning Answers – #159

Happy Monday!  Friday’s questions are here.  The answers follow today’s Honor Roll.  Congrats to all on it, with a special s/o to first-timer Melinda Siel!

Honor Roll

Answers

Question 1

By rule, a lawyer shall not make an agreement for, charge, or collect an unreasonable fee.

True or False: if a client confirms a fee agreement in writing, it is presumed reasonable.

FALSE – Rule 1.5 speaks for itself.  Also see this blog post.  Finally, as the Vermont Supreme Court said here: attempting to justify a fee by arguing that the client agreed to it

  • “. . . demonstrates [the lawyer’s] failure to comprehend the effect of Vermont Rules of Professional Conduct 1.5(a);  lawyers, unlike some other service professionals, cannot charge unreasonable fees even if they are able to find clients who will pay whatever a lawyer’s contract demands.”

Question 2

By rule, which other rule or rules are relaxed:

“When a lawyer, under the auspices of a program sponsored by a non-profit or court, provides short-term legal services to a client without expectation by the lawyer or client that the lawyer will provide continuing representation  in the matter.”

  • A.  The rules on conflicts of interest.  Rule 6.5
  • B.  The rule that requires competent representation
  • C.  The rule that requires candor to the court
  • D.  The rules on safekeeping client property

Question 3

By rule, there are two exceptions to a general prohibition on contacting certain people.  The exceptions are:

  • 1.  if the person is a lawyer; or,
  • 2.  if the person has a family, close personal, or prior professional relationship with the lawyer.

These are the exceptions to the rule that prohibits a lawyer from contacting a:

  • A.  represented person
  • B.  juror
  • C.  former constituent of a represented organization
  • D.  prospective client, by in-person, live telephone or real-time electronic contact, when a significant motive for doing so is the lawyer’s pecuniary gain.  Rule 7.3(a)

Question 4

Lawyer has a conflict.  Therefore, Lawyer moves to withdraw.  Trial court denies the motion and orders Lawyer to continue the representation, notwithstanding that good cause exists to terminate the representation.  By rule, Lawyer must:

  • A.  Appeal
  • B.  Continue the representation.  Rule 1.16(c).
  • C.  Self-report to disciplinary counsel
  • D.  The rule is silent

Question 5

Speaking of how things were different way back when, there was a time when law schools were not required to teach professional responsibility/legal ethics.  Identify the event that resulted in the American Bar Association deciding that legal ethics/professional responsibility should be a required course in law school.

Watergate.

Image result for images of watergate

Monday Morning Answers: Memorial Day

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

Honor Roll

  • Matthew Anderson, Pratt Vreeland Kennelly Martin & White
  • Penny Benelli, Dakin & Benelli
  • Jennifer Blomback, VATC
  • Beth DeBernardi, ALJ, Department of Labor
  • Robert Grundstein, Esq.
  • Anthony Iarrapino, Esq.
  • Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
  • Patrick Kennedy, First Brother, Dealer.Com
  • Aileen Lachs, Mickenberg, Dunn, Lachs, Smith
  • Kevin Lumpkin, Sheehey Furlong & Behm
  • Hal Miller, Esq.
  • Lon McClintock, Esq.
  • Herb Ogden, Esq.
  • Jim Runcie, Esq.

Stats

  • Hardest:  Question 5. Of the ethics, Question 1.
  • Easiest:  Question 4
  • Hidden Pop Culture Reference: Question 3.  Emmit & Ray Stussy are the twin brothers played by Ewan McGregor in this season of Fargo.  I highly recommend it. V.M. Varga has quickly become one of my favorite characters in TV history.

Answers

Question 1

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 separate until the dispute is resolved.
  • C.   Firm must disburse $35,000 to Client and keep $15,000 separate until the dispute is resolved.
  • D.  Firm must disburse $35,000 to Client, disburse $10,000 to Firm, and keep $5,000 separate until the dispute is resolved.  See, Rule 1.15.  

Section (e) requires a lawyer to disburse funds that are not in dispute.  Section (a) prohibits commingling.  So, there is $45,000 that isn’t in dispute: Client’s $35,000 and the $10,000 Client agrees is owed to Firm.  Those portions must be disbursed, with the disputed $5000 remaining separate 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 subpoena 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.   See, Rule 4.3.
  • 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.  See, Rule 1.8, Comment [5].

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.  See, this post.
  • 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.

John Mitchell. Mitchell was Attorney General during Watergate.

Monday Morning Answers

Friday’s quiz is HERE.  The answers follow the Honor Roll.

Honor Roll

  • Beth DeBernardi, Esq.
  • Andrew Delaney, Esq.
  • Robert Grundstein, Esq.
  • Jackie Chiles’ Lewd-Lascivious-Salacious-Outrageous Fun Bunch
  • Keith Kasper, Esq.
  • Patrick Kennedy, First Brother
  • Hal Miller, Esq.
  • Herb Ogden, Esq.
  • Team Pegasus
  • Jim Runcie, Esq.

Question 1

Today I’m dong a CLE for the Workers’ Compensation bar. Let’s take a question from their world.

Wood represents Plaintiff.  Wood has actual notice from Plaintiff’s health insurer that the insurer has a lien on any recovery.

Richards represents liability carrier.  In connection with settlement, Richards ask Wood to execute an agreement that Wood will personally indemnify and hold harmless the liability carrier for any of Client’s unpaid liens.

Wood agreed.

Which is most accurate?

  • A.   Wood violated the Rules of Professional Conduct
  • B.   Richards violated the Rules of Professional Conduct
  • C.   They both violated the Rules of Professional Conduct
  • D.  Neither violated the Rules of Professional Conduct

See, VBA Advisory Ethics Opinion 2013-01; Wood by creating a conflict of interest & providing financial assistance to a client; Richards by inducing Wood to violate the Rules.

Question 2

Lawyer called me with an inquiry involving Client and  Other. I listened.  Then, I said

  • “It’s ok as long as Client gives informed consent, there’s no interference with your professional judgment or your relationship with Client, and you don’t share any information about the representation with Other absent Client’s consent.”

What is Other’s involvement with this situation?

Other is paying for Lawyer to represent Client.  See, Rule 1.8(f)

Question 3

Large Firm represents Brady in the matter Brady v. Ryan.  Small Firm represents Ryan.

Associate leaves Small Firm to take a job at Large Firm.    Which is most accurate?

  • A.   Large Firm must withdraw from representing Brady.
  • B.   Large Firm may continue to represent Brady.
  • C.  Large Firm may continue to represent Brady if Associate is screened from participation.
  • D.  Large Firm may continue to represent Brady only if Associate did not participate personally & substantially in Small Firm’s representation of Ryan , and, Large Firm screens Associate from participation in the matter.

This is Vermont’s Rule 1.10(a)(2).  The Vermont rule is more broad than the ABA Model Rule.  When a lawyer changes jobs, the ABA rule allows the new firm to screen the attorney even if the attorney participated personally & susbstantially in the matter while at the old firm.  Also, Vermont Rule 1.10(a)(2)(ii) and (iii) impose significant requirements beyond mere screening.

In that Vermont’s rule is more broad than the ABA’s, there is some concern that it limits job opportunities in a small state.  The counter-argument is that client loyalty and confidences are paramount.

Question 4

Nationally, which is most common with respect to  Electronically Stored Information?

  • A.   Discovery sanctions for failure to preserve ESI; See, This Study
  • B.   Discovery sanctions for producing ESI  in an improper format
  • C.   Disciplinary sanctions for failure to preserve ESI
  • D.   Disciplinary sanctions for failing to request ESI in discovery

For more, the California State Bar’s advisory ethics opinion on handling Electronically Stored Information is HERE.  Last week, the Wisconsin Bar published this post on ethics, professionalism, and E-Discovery.

Question 5

Identify the event that resulted in the American Bar Association deciding that legal ethics/professional responsibility should be a required course in law school.

Watergate.  See, ABA Journal, “Watergate’s Lasting Legacy is to Legal Ethics Reform, Says John Dean.” (that’s the Watergate complex, front left, on the banks of the Potomac, next to the Kennedy Center)

Watergate.jpg