1. Regulation of the Legal Profession

Question 1

when you MAY report

vs.

when you MUST report

Answer 1

You MUST report if you KNOW that a SUBSTANTIAL violation of the ethical rules has occurred, UNLESS you’re under a duty of confidentiality.

Know = actually know, not just suspect. If you only suspect, you MAY, but not MUST, reveal.

Substantial = something that could reflect really poorly on practice of law (e.g. cheating on your taxes is substantial; breaking an advertising rule probably isn’t). If not substantial, you MAY, but not MUST, reveal.

Confidentiality = if it applies, you CAN’T say anything

Question 2

invalid state requirements for bar admissions

Answer 2

citizenship; state residency

Question 3

when is being prejudiced not a huge deal?

Answer 3

when selecting clients

when acting outside of your professional role (e.g. at family gatherings)

Question 4

discipline & choice of law

Answer 4

generally, the rules where the incident occurred will apply. HOWEVER, safe harbor for lawyer who reasonably believes that action will predominantly affect a jurisdiction where such action is allowed.

Question 5

what can a NON-lawyer do in your firm?

Answer 5

1) conduct interviews (BUT NOT depositions)
2) fill out simple forms (BUT NOT drafting them)
3) communicating with clients (BUT NOT giving legal advice)

NEVER ANYTHING DIRECTLY INVOLVED WITH LITIGATION (e.g. sending requests without oversight, etc.)

Question 6

how to temporarily practice in another state if you’re already barred in your state

Answer 6

1) associate yourself with barred attorney in the state
2) pro hac vice = for this matter only. judge gives temporary allowance for you to work in the state. EVEN IF you haven’t been admitted PHV yet, if you reasonably expect it’s coming, you can do preliminary work.
3) mediation/arbitration related to your home state.
4) work on a matter “reasonably related” to your home state practice (e.g. if your client wants buys a lot of land in your state but wants to make a purchase in a neighboring state, you can negotiate, etc.)

Question 7

how to practice long-term in a state if you’re not barred there

Answer 7

1) work as in-house counsel or government attorney (NON-LITIGATION ROLE—ask for PHV if a litigation matter emerges)
2) practice in restricted branches of law (e.g. patent prosecution)

Question 8

partner/manager responsibilities

Answer 8

have measures in place to help with ethics rules compliance

Question 9

supervisor responsibilities

Answer 9

reasonable efforts to ensure subordinates comply

Question 10

when does vicarious responsibility kick in for partners/supervisors?

Answer 10

1) ordered/ratified misconduct

2) failure to avoid/mitigate consequences of violation (REASONABLE remedial action)

Question 11

subordinate responsibilities

Answer 11

following orders is no excuse, UNLESS your action is result of supervisor’s REASONABLE resolution of ARGUABLE professional responsibility question

Arguable = has to be a real question—no black and white answer

Question 12

how to maintain professional independence

Answer 12

1) DO NOT form a partnership with a non-lawyer for legal-related businesses.
2) NO non-lawyer control/ownership interest of firm
3) NO fee-splitting, EXCEPT…death benefits to lawyer’s estate, funds to purchase partnership share from incapacitated partner, bonus plans/staff salaries, OR court-awarded legal fees split with recommending nonprofit

Question 13

freedom to practice

Answer 13

1) NO restriction on ability to practice law after leaving partnership (except re: retirement benefit agreements)
2) settlement agreements CANNOT restrict right to practice (lawyer who agrees to these terms could be SUBJECT TO DISCIPLINE)

Question 14

you’re SELLING a law practice—what are your responsibilities?

Answer 14

1) CANNOT just sell off a few cases here and there—you HAVE TO sell off either the whole firm or an entire practice area.
2) confidentiality issue–MUST give written notice to all clients, consisting of (a) notice of sale, (b) right to obtain other counsel and reclaim files, (c) assumed transfer of work to buyer after 90 days.
3) you MUST quit practicing law in that area (as your own boss—can work as government lawyer, legal aid lawyer, in-house counsel, etc.)

Question 15

you’re BUYING a law practice—what are your responsibilities?

Answer 15

1) MUST honor EXISTING fee arrangements.

Existing = current matters. Future matters, even with same clients, can result in price hike.

Question 16

what about firms providing non-legal services (but LAW-RELATED), like financial planning?

Answer 16

rules still apply!!!

Question 17

when can a state keep you from getting admitted to the bar?

Answer 17

any conviction of a crime of MORAL TURPITUDE

Question 18

do criminal procedure evidentiary rules apply to disciplinary hearings?

Answer 18

NO—however, due process, etc., applies.