Integrity of the Profession Flashcards
Professional Independence of a Lawyer
- A lawyer MAY enter into business deals with a non-lawyer. However, a non-lawyer CANNOT be a partner, owner, director, or officer in a business that involves the practice of law. If a lawyer does so, it’s an ethical violation.
- Additionally, a lawyer CANNOT permit a person who pays, employs, or recommends the lawyer to:
(a) direct/regulate the lawyer’s professional judgment with respect to the practice of law; OR
(b) interfere the with the lawyer-client relationship.
Unauthorized Practice of Law–In another state
• A lawyer CANNOT practice law in a state/jurisdiction where that lawyer is not admitted to practice law. Additionally, lawyer CANNOT assist a person in the unauthorized practice of law.
o Practice of law means doing things that call for the professional judgement of a lawyer.
Unauthorized Practice of Law–Lawyer Not Admitted to Practice in the State
A lawyer not admitted to practice law in the state CANNOT:
(a) have an office or systematic/continuous presence in such state for the practice of law; OR
(b) hold out to the public that the lawyer is admitted to practice law in the state.
In CA, certain exceptions to the above rules exist, including for: counsel pro hac vice, appearances by military counsel, certified law students, out-of-state attorney arbitration counsel program, registered foreign legal consultant, registered legal services lawyers, registered in-house counsel, lawyers practicing temporarily in California as part of litigation, and non-litigating lawyers temporarily in California to provide legal services.
Responsibilities Regarding Non-Lawyer Assistants–In General
A non-lawyer MAY work under the direct supervision of a practicing lawyer who is licensed in that jurisdiction. Supervising lawyers and partners must make reasonable efforts that a non-lawyer’s conduct is compatible with the lawyer’s obligations.
Additionally, a lawyer CANNOT assist a person in the unauthorized practice of law.
Responsibilities Regarding Non-Lawyer Assistants–Non-Lawyer’s Ethical Violations
A lawyer is responsible for a non-lawyer’s ethical violation if the lawyer:
(a) orders the conduct;
(b) ratifies the conduct with knowledge of the specific conduct involved; OR
(c) knows the employee’s conduct at a time when its consequences can be avoided, fails to take reasonable remedial action, and has managerial authority of the law firm or direct supervisory authority over the person.
Employment of Disbarred, Suspended, Resigned, or Involuntary Active Lawyer–CA (General Rule)
In CA, a lawyer CANNOT employ or associate with a disbarred, suspended, resigned (in face of pending discipline), or involuntary active lawyer for any activity that constitutes the practice of law, including: rendering legal advice, court appearances, representing a client at a deposition or discovery matter, negotiate/transact client matters with third-parties, and handling client funds.
Employment of Disbarred, Suspended, Resigned, or Involuntary Active Lawyer–CA (Exceptions)
A lawyer MAY hire such person for other specific activities with:
(1) notification to the State Bar; AND
(2) with written notice to each client that the person will perform work for. The allowed activities are: (i) preparatory legal work (legal research, drafting documents, data/info assembly); (ii) communication for scheduling, billing, updates, and sending/confirming receipt of messages; and (iii) clerical assistance to an active lawyer at a deposition/discovery matter.
Such notice is NOT REQUIRED for non-legal “support activities,” such as physical maintenance, delivery services, catering, reception, and typing/transcription.
Employment of Disbarred, Suspended, Resigned, or Involuntary Active Lawyer–ABA
Under the ABA, there is no equivalent rule. However, a lawyer cannot assist a person in the unauthorized practice of law.
Professional Misconduct
It is professional misconduct for a lawyer to:
(1) violate ethical rules;
(2) commit a criminal act that reflects adversely on the honesty, trustworthiness, or fitness as a lawyer;
(3) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;
(4) engage in conduct that is prejudicial to the administration of justice;
(5) state/imply an ability to improperly influence a government agency or official; AND/OR
(6) knowingly assist a judge or judicial officer in a violation of ethical rules or other law.
Under the ABA, an “attempt” to violate an ethical rule is also deemed misconduct.
Reporting Professional Misconduct–ABA
Under the ABA, a lawyer MUST report another lawyer or judge when (1) the lawyer knows, (2) the other lawyer/judge violated the ethical rules, (3) that raises a substantial question, (4) as to their honesty, trustworthiness, or fitness as a lawyer/judge.
Reporting Professional Misconduct–CA
In CA, a lawyer is NOT required to report known violations.
However, a lawyer MUST self-report if:
(1) charged with a felony;
(2) convicted of a serious crime;
(3) found civilly liable for fraud/misrepresentation/breach of fiduciary duty/gross negligence committed in a professional capacity;
(4) disciplined;
(5) sanctioned $1,000 or more, except for discovery sanctions;
(6) sued for malpractice three or more times within a year; OR
(7) a court judgment is based upon misconduct, grossly incompetent representation, or willful misrepresentation of the lawyer.
