Duties to Public and Legal Profession Flashcards
Unauthorized practice of law
A lawyer must not assist a person who is not a member of the bar in the performance of an activity that constitutes the unauthorized practice of law
* practice of law is defined as anything that would call for the judgment, reasoning, or skill of an attorney
California Rules also specifically addresses the circumstances in which a lawyer may employ a disbarred and otherwise ineligible lawyer
* may perform certain research, drafting, and clerical activities with notice to the State Bar and clients
NOT any activities that constitute the practice of law;
* providing legal consultation to clients
* appearing or negotiating on their behalf.
California Rules specifically prohibit a lawyer from allowing an ineligible person to render legal consultation to clients.
- Did non-lawyer or unlicensed attorney perform substantive work?
- Did lawyer supervise the work?
- Did lawyer rely on the unlicensed attorney?
- If lawyer helped an unlicensed attorney in the unauthorized practice of law, doesn’t matter if he gave notice to the State Bar.
Supervising non-lawyers (ex. paralegal)
A lawyer may delegate tasks to a paralegal or other non lawyer employee, but must supervise the elevated work carefully and must be ultimately responsible for the results. A lawyer having managerial or direct supervisory authority over a non lawyer must make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.
Advertising lawyer’s services
Lawyer advertising is generally permissible as long as it is not false or misleading. This rule applies to all kinds of communications, including personal communications.
A lawyer may tell the public in which field or fields of law she does or does not practice. However, a lawyer may not claim to be a “certified specialist” in a certain field unless:
* she has been certified by an approved organization and
* the communications clearly identify the organization that certified her.
- Is lawyer claiming to be a specialist in some law?
- Does lawyer have special certification for the specialty?
- Even if she doesn’t, it’s OK if lawyer’s just trying to communicate that she primarily engages in the field of [personal injury law], which would be true and not misleading.
Soliciting clients
A solicitation is a:
* targeted communication initiated by or on behalf of the lawyer that is
* directed to a specific person
* the lawyer knows or reasonably should know needs legal services in a matter, and
* that offers to provide, or can reasonably be understood as offering to provide, legal services for that matter
Generally, a lawyer must not use live person-to-person contacts to solicit professional employment where a significant motive for doing so is the lawyer’s pecuniary gain (with certain exceptions: e.g., where the lawyer has a prior relationship with the person).
Agents: a lawyer is prohibited from using an agent to do that which the lawyer must not do, e.g., violate a law or disciplinary rule
* lawyer must not use an agent to contact prospective clients in a manner that would violate the rule against solicitation.
- Does lawyer have a prior relationship with the client or are they complete strangers?
- Is lawyer using an agent to target them?
