Introduction; Morals v. Ethics; Basics on the Regulation of Lawyers; Scope of the Rules; Introduction to Bar Admissions - May 30

Question 1

Are the state judiciaries the primary regulators of lawyers and the legal profession in each state? (Q)

Answer 1

Yes. In each state, the state judiciary is the primary regulator of lawyers and the legal profession, because attorneys are officers of the courts. In general, the state’s highest court promulgates the codes of conduct, ethical rules, and other standards governing admission to the bar, the practice of law, and attorney discipline.

Because of the judiciary’s leading role in regulating lawyers, the legal profession is sometimes said to be self-governing. This means that the rules of the legal profession are generally established and administered by lawyers, i.e., by judges, instead of by non-lawyers.

Question 2

In addition to being regulated by the state judiciaries, are lawyers also regulated by other authorities? (Q)

Answer 2

Yes. In addition to being regulated by the state judiciaries, lawyers and legal practice in a given state might also be regulated by state or federal statutes, state or federal administrative agencies, or general court rules such as the rules of evidence and procedure. For instance, state statutes may create state bar associations or address matters of licensure. Federal statutory law provides standards of conduct for lawyers appearing before the Securities and Exchange Commission and other federal agencies. Likewise, the Federal Rules of Civil Procedure provide standards of diligence and good faith for lawyers who act as advocates in the federal courts.

Question 3

What is a state bar association? (Q)

Answer 3

A state bar association is a membership group of lawyers who are admitted to practice in a particular state. In many states, one function of the state bar association is to assist the judiciary in administering the ethical and other rules that govern lawyers.

Question 4

What is the difference between an integrated state bar and a permissive state bar? (Q)

Answer 4

The difference between an integrated state bar and a permissive state bar concerns whether membership in the bar is mandatory for lawyers admitted to practice in the state. An integrated state bar is one in which membership in the state bar association is mandatory for lawyers admitted to practice law in that state. A permissive state bar is one in which membership is voluntary. Most states have integrated bars.

Question 5

In regulating lawyers, do state regulatory authorities often delegate administrative duties to state bar associations or other administrative bodies? (Q)

Answer 5

Yes. In regulating lawyers, the state’s regulatory authorities often delegate administrative duties to state bar associations or other administrative bodies, such as lawyer disciplinary commissions. These entities take on day-to-day responsibilities for matters such as the state’s bar examination, applications for admission to the practice of law, and ethical complaints made against lawyers.

Question 6

What are the Model Rules of Professional Conduct? (Q)

Answer 6

The Model Rules of Professional Conduct (MRPC) are suggested ethical rules promulgated by the American Bar Association (ABA) as a model for the regulation of lawyers. The MRPC were introduced in 1983 and have been continually updated. The MRPC replaced the ABA’s Model Code of Professional Responsibility, which in turn replaced the ABA’s Canons of Professional Ethics.

Question 7

Does the ABA regulate lawyers directly through the MRPC? (Q)

Answer 7

No. The ABA is a private, voluntary membership organization that has no power to regulate the legal profession. Thus, the ABA does not regulate lawyers directly through the MRPC. Instead, the MRPC are a model for each state to use as it sees fit in in crafting its own ethical rules.

Question 8

Has every state either adopted the MRPC or patterned its ethical rules closely after the MRPC? (Q)

Answer 8

Yes. Every state has either adopted the MRPC or patterned its ethical rules closely after the MRPC. However, ethical rules may vary from state to state.

Question 9

For purposes of the MRPC, does the term “person” refer to both a natural person and an artificial entity?

Answer 9

Yes. For purposes of the MRPC, the term person refers to both a natural person (i.e., an individual) and an artificial entity (i.e., a legal or commercial entity). The term “person” is also used to mean both the singular and the plural.

Question 10

In general, how are standards of professional conduct for lawyers promulgated in the federal district courts? (Q)

Answer 10

In general, each federal district court adopts its own standards of professional conduct for lawyers through its local rules. In doing so, a federal district court will sometimes adopt for itself the ethical rules of the state in which the court is located.

Question 11

Does the law of each state define what constitutes the practice of law in that state? (Q)

Answer 11

Yes. The law of each state defines what constitutes the practice of law in that state. In general, the practice of law is defined as the application of legal principles and judgment regarding another person’s circumstances, including giving legal advice, appearing before a court, negotiating settlements, or drafting legal documents.

Question 12

Does each state regulate the admission of lawyers to practice in that state? (Q)

Answer 12

Yes. Each state regulates the admission of lawyers to practice law in that state. Admission to the practice of law is sometimes called admission to the bar. A state’s authority to regulate the admission of lawyers stems from each state’s power to protect the welfare of its citizens by ensuring that the lawyers who practice in that state are at least minimally competent.

Question 13

In general, are states free to set their own standards for admitting lawyers to practice? (Q)

Answer 13

Yes. In general, each state may set its own standards and requirements for admitting lawyers to practice. The U.S. Supreme Court has held that although a state’s requirements for bar admission may not be completely arbitrary, they generally need only be rationally related to an applicant’s fitness to practice law. This means that the state’s criteria will usually be upheld unless they have no conceivable relationship to an applicant’s fitness to practice law. This is a fairly forgiving standard that leaves the states significant latitude in bar admissions.

Question 14

In general, may each state require an applicant to pass a written bar examination before being admitted to practice law? (Q)

Answer 14

Yes. In general, each state may require an applicant to pass a written bar examination before being admitted to practice law. This requirement is rationally related to the state goal of ensuring the competence of lawyers who practice in that state.

Question 15

May a state deny a person admission to the practice of law because that person resides in another state? (Q)

Answer 15

No. In general, a state may not deny a person admission to the practice of law because that person resides in another state. A person’s state of residence is not sufficiently related to lawyer competence to provide a basis for denying bar admission.

Question 16

May a state require an applicant for bar admission to take an oath to uphold the state and federal laws and constitutions? (Q)

Answer 16

Yes. A state may require an applicant for bar admission to take an oath to uphold the state and federal laws and constitutions. The U.S. Supreme Court has made clear that this type of oath requirement is valid.

Question 17

Must an applicant for admission to a state bar respond truthfully to all demands for information from the bar-admission authorities? (Q)

Answer 17

Yes. An applicant for admission to a state bar must respond truthfully to all demands for information from the bar-admission authorities. More precisely, the applicant may not:

knowingly make a false statement of material fact,
knowingly fail to disclose a fact necessary to correct a misunderstanding that the applicant knows has arisen, or

knowingly fail to respond to a lawful information request from a bar-admission authority.
Violation of this rule may be grounds for denial of an application or for discipline after admission.

Despite this general rule, the applicant need not disclose information that is protected by principles of lawyer-client confidentiality. This rule also does not supersede an applicant’s right against self-incrimination under the Fifth Amendment to the United States Constitution.

Question 18

Under what circumstances does a person act knowingly in making a false statement, failing to correct a false impression, or failing to provide information in connection with an application for bar admission? (Q)

Answer 18

A person acts knowingly in making a false statement, failing to correct a false impression, or failing to provide information in connection with an application for bar admission if she is:

actually aware that the statement is false when she makes it,

actually aware that the failure to provide information will perpetuate a false impression, or

actually aware that she is failing to provide requested information.

Consequently, an applicant who mistakenly provides false information likely would not be subject to negative consequences, unless the applicant later discovered the mistake and failed to make a disclosure necessary to correct the error.

Question 19

An applicant for admission to a state bar made a truthful statement about a material fact in his application. The applicant later realized that the admissions committee had misunderstood the statement.

Must the applicant correct the misunderstanding with the admissions committee? (Q)

Answer 19

Yes. The applicant must correct the misunderstanding with the admissions committee. An applicant for admission to a state bar must respond truthfully to all demands for information from the bar-admission authorities. This means providing honest and complete answers to questions, as well as actively correcting known misunderstandings. Failure to correct a misunderstanding, even if it results from a truthful statement, may be considered an offense that could result in adverse action.

Here, the applicant made a truthful statement in his bar application, and he knew that the admissions committee misunderstood it. Even though the misunderstanding arose from a truthful statement, the applicant’s responsibility to provide honest and complete information requires correcting the misunderstanding. Thus, the applicant must correct the misunderstanding with the committee.

Question 20

In general, may a state require that an applicant for bar admission be of good character and morally fit to practice law? (Q)

Answer 20

Yes. In general, a state may require that an applicant for bar admission be of good character and morally fit to practice law. These characteristics have been upheld by the courts as rationally related to a person’s fitness to practice law.

Question 21

Does every state require a bar applicant to demonstrate his good character and fitness to practice law? (Q)

Answer 21

Yes. Every state requires a bar applicant to demonstrate his good character and fitness to practice law. In other words, in any bar application, the applicant bears the burden of proving that he possesses suitable character and fitness to practice.

Question 22

May a state bar-admission authority require a bar applicant to complete an application or affidavit detailing the applicant’s personal and professional history to demonstrate that the applicant has suitably good character and fitness to practice law? (Q)

Answer 22

Yes. Although the procedure for bar admission varies from state to state, a state bar-admission authority may require a bar applicant to complete an application or affidavit detailing the applicant’s personal and professional history to demonstrate that the applicant has suitably good character and fitness to practice law. Many states also require applicants to do some or all of the following to prove good character and fitness:

complete a questionnaire submitted under oath,
submit references, fingerprints, or photographs,
respond to requests for additional information, or
appear at a hearing.

Question 23

In general, is any single improper action in a bar applicant’s past likely to be an automatic reason for permanent denial of admission to the bar? (Q)

Answer 23

No. In general, no single improper action in a bar applicant’s past is likely to automatically and permanently disqualify the applicant from admission to the bar. Instead, a bar-admission authority will tend to review adverse information in the context of an entire application to assess an applicant’s fitness. Relevant considerations may include: (1) the time elapsed since the adverse event, (2) an applicant’s behavior or degree of contrition after the event, or (3) the nature and context of the adverse information.

Question 24

In assessing an applicant’s character and fitness, may a bar-admission authority consider criminal conduct with which an applicant was charged, but of which the applicant was not convicted? (Q)

Answer 24

Yes. In general, a bar-admission authority may consider criminal conduct with which an applicant was charged, but of which the applicant was not convicted. This principle also extends to conduct of which an applicant was formally acquitted.

Question 25

In assessing an applicant’s character and fitness, may a bar-admission authority consider an applicant’s history of drug or alcohol dependency? (Q)

Answer 25

Yes. In assessing an applicant’s character and fitness, a bar-admission authority may consider an applicant’s past or present drug or alcohol dependency. However, the bar-admission authority will also take into account the applicant’s efforts at rehabilitation and the time that has elapsed since the applicant began treatment.

Question 26

In assessing an applicant’s character and fitness, may a bar-admission authority consider academic misconduct and other behavior involving fraud, dishonesty, or deceit? (Q)

Answer 26

Yes. In assessing an applicant’s character and fitness, a bar-admission authority may consider academic misconduct, as well as other behavior involving fraud, dishonesty, or deceit. Matters reflecting on an applicant’s honesty or truthfulness are generally considered to be highly important in assessing an applicant’s fitness to practice law.

Question 27

In assessing an applicant’s character and fitness, may a bar-admission authority consider an applicant’s mental-health status or history? (Q)

Answer 27

Yes. In assessing an applicant’s character and fitness, a bar-admission authority may consider an applicant’s mental-health status or history. An existing mental-health condition may be a basis for denying bar admission if that condition interferes with the applicant’s ability to practice law competently.

However, bar-admission authorities increasingly recognize that past treatment for a mental-health condition is not by itself indicative of poor moral character or of present unfitness to practice law. Thus, there is a trend away from asking about past mental-health issues in the bar-admission process. An applicant’s present mental health, however, remains relevant in assessing the applicant’s current fitness to practice law.

Question 28

In general, may a state deny a person admission to the practice of law based on that person’s political beliefs? (Q)

Answer 28

No. In general, a state may not deny bar admission to a person based on that person’s political beliefs. Standing alone, even unusual or unpopular beliefs are generally not rationally related to a person’s fitness to practice law.

Question 29

Does an applicant for admission to a state bar have a right to due process of law in the application proceedings? (Q)

Answer 29

Yes. A bar applicant has a right to procedural due process throughout the application proceedings. At a minimum, procedural due process entitles an applicant to notice of any proposed grounds for non-admission and an opportunity to be heard before admission is denied.

Question 30

In general, does an applicant for admission to a state bar have a right to appeal a denial of her application? (Q)

Answer 30

Yes. Although admission procedures vary from state to state, generally, an applicant who is denied admission to a state bar may appeal a denial of her application by petitioning for a hearing before either a court or a dedicated appeals committee of the state bar. Most courts are cautious about reversing the determinations of the bar examiners or other admissions authorities. As a result, although the courts will exercise their powers of review, they tend to defer to the examiners’ decisions.

Question 31

What are the seven major categories of lawyer misconduct under the MRPC? (Q)

Answer 31

The seven major categories of lawyer misconduct under the MRPC are:

violating or attempting to violate an ethical rule or knowingly assisting another in violating an ethical rule;

committing a crime suggesting a lack of honesty, trustworthiness, or fitness to practice law;

engaging in any conduct involving dishonesty, fraud, deceit, or misrepresentation;

engaging in conduct that is prejudicial to the administration of justice;

suggesting that one can improperly influence a government agency or official or get results by engaging in illegal or unethical conduct;

knowingly helping a judge violate a law or rule of judicial conduct; and

engaging in conduct that the lawyer knows or reasonably should know is harassment or discrimination.

Question 32

Under what circumstances is a lawyer subject to the disciplinary authority of a particular jurisdiction? (Q)

Answer 32

A lawyer is subject to the disciplinary authority of a particular jurisdiction if:

the lawyer is admitted to practice in that jurisdiction, regardless of where the misconduct occurs, or

the lawyer provides or offers legal services in that jurisdiction.

A lawyer may be disciplined by more than one jurisdiction for the same conduct.

Question 33

If a lawyer’s conduct is subject to discipline in multiple jurisdictions, which jurisdiction’s rules of professional conduct should the disciplining authority apply? (Q)

Answer 33

If a lawyer’s conduct is subject to discipline in multiple jurisdictions, then the disciplining authority should apply the following rules of professional conduct:

if the conduct relates to a matter pending before a court or other tribunal, the rules of the jurisdiction in which the tribunal sits; or

if no tribunal is involved, the rules of the jurisdiction in which the conduct occurred or in which the conduct had its primary effect.

Question 34

In general, if a lawyer’s conduct complies with the rules of professional conduct of a jurisdiction in which the lawyer reasonably believes the conduct will have its primary effect, may the lawyer be disciplined for that conduct? (Q)

Answer 34

No. In general, a lawyer may not be disciplined by any jurisdiction for conduct that complies with the rules of professional conduct of a jurisdiction in which the lawyer reasonably believes the conduct will have its primary effect. This holds true even if the conduct might otherwise subject the lawyer to discipline in a different jurisdiction.