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 Seinfeld, The 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.

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.”

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:

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.

 

 

 

Monday Morning Answers

Last week’s questions are HERE.

Yes, I’m getting right to it today.  My direct approach is a result of writer’s block, a euphemism for “I have nothing interesting to say.”

Before I go over the answers, the

HONOR ROLL

• Matt Anderson, Pratt Vreeland Kennelly Martin & White
• Robert Grundstein
• Hal Miller, First American
• Ian Sullivan – Office of the Rutland County State’s Attorney

Answers

Question 1

Generally, the objective of a representation is left to the client, with the means by which the objective is pursued left to the lawyer, in consultation with the client.  I’ve told lawyers (and complainants) that means that the rules don’t require a lawyer to call each and every witness that the client wants put on the stand.

There’s an exception.  There’s a rule that requires a lawyer to abide by the client’s decision to have a particular witness testify.  What type of case are you handling if you are in a situation in which the rule applies to you?

Criminal.  See, Rule 1.2(a) (“in a criminal case, the lawyer shall abide by a client’s decision, after consultation with the lawyer, as to . . .whether to testify.”)

Question 2

Attorney called with an inquiry. The attorney described a situation and then asked “Mike, what does ‘joint responsibility’ mean?” I replied.  “It’s buried in one of the comments.  Let me look…..here it is, I’ll read it to you:  ‘joint responsibility for the representation entails financial and ethical responsibility for the representation as if the lawyers were associated in a partnership.”

What was the subject of Attorney’s inquiry?

Fee Sharing (also credit for “referrals”)  See, Rule 1.5(e) The rule is this: a division of fee between two lawyers not in the same firm is allowed IF:

• the division is in proportion to services performed by each OR each lawyer assumes joint responsibility for the representation; and
• the client agrees, including to the division, and confirms the agreement in writing; and,
• the total fee is reasonable

Per Comment [7] “joint responsibility for the representation entails financial and ethical responsibility for the representation as if the lawyers were associated in a partnership.”

Question 3

Lawyer called.  We discussed an ethical issue.  In the end, I said something like “the point of the rule is this: it’s not fair to the other side if the jury might not be clear as to whether your statements are proof or an analysis of proof.”

Why did Lawyer call?

I was going for this: lawyer called to discuss the “lawyer as witness” rule, which is rule 3.7. see, Comment [2] (“It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.”)

However, I’m giving credit to answers that referred to Rule 3.4(e) and opening/closing statements.

Question 4

Counselor called me.  “Mike, I took a family law case and it bit me. I messed up, got sued.  My carrier extended an offer. I think they want a little more, but my carrier doesn’t want to go any higher.  My former client said that she’ll take the offer, but only if I agree never again to take a divorce case.  Sounds like a deal to me, but I wanted to run it by you first.”

It is most likely that I responded:

• A.   You have a duty to self-report.
• B.   If you agree to that term, you have to change your letterhead, website, and ads to make it clear that you don’t handle divorces.
• C.   The rules prohibit you from agreeing to that term.  Rule 5.6(b) prohibits any settlement that includes a restriction on the lawyer’s right to practice. Here “a” is not correct, because Counselor hasn’t done anything, yet, but call me.

Question 5

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.

Roy Cohn…..with the Billy Joel lyrics including this verse:

“Roy Cohn, Juan Peron, Toscanini, Dacron
Dien Bien Phu falls, ‘Rock Around the Clock’

 

 

Five for Friday #24

I will get back to blogging soon….I hope….I promise.  Been tied up with some other issues of professional responsibility that aren’t as fun, aren’t as interesting, and keep me from doing this.  That should change next week.

Anyhow, if you’re into Willie Mays, Jeff Gordon, or Jack Bauer, karma is on your side this week – it’s Five for Friday #24.

Question 1

Generally, the objective of a representation is left to the client, with the means by which the objective is pursued left to the lawyer, in consultation with the client.  I’ve told lawyers (and complainants) that means that the rules don’t require a lawyer to call each and every witness that the client wants put on the stand.

There’s an exception.  There’s a rule that requires a lawyer to abide by the client’s decision to have a particular witness testify.  What type of case are you handling if you are in a situation in which the rule applies to you?

Question 2

Attorney called with an inquiry. The attorney described a situation and then asked “Mike, what does ‘joint responsibility’ mean?” I replied.  “It’s buried in one of the comments.  Let me look…..here it is, I’ll read it to you:  ‘joint responsibility for the representation entails financial and ethical responsibility for the representation as if the lawyers were associated in a partnership.”

What was the subject of Attorney’s inquiry?

Question 3

Lawyer called.  We discussed an ethical issue.  In the end, I said something like “the point of the rule is this: it’s not fair to the other side if the jury might not be clear as to whether your statements are proof or an analysis of proof.”

Why did Lawyer call?

Question 4

Counselor called me.  “Mike, I took a family law case and it bit me. I messed up, got sued.  My carrier extended an offer. I think they want a little more, but my carrier doesn’t want to go any higher.  My former client said that she’ll take the offer, but only if I agree never again to take a divorce case.  Sounds like a deal to me, but I wanted to run it by you first.”

It is most likely that I responded:

• A.   You have a duty to self-report.
• B.   If you agree to that term, you have to change your letterhead, website, and ads to make it clear that you don’t handle divorces.
• C.   The rules prohibit you from agreeing to that term.

Question 5

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.