Maintaining the Legal Profession Flashcards
Grounds of Misconduct: Overview
[SEVEN FORMS OF VIOLATIONS]
- May not violate or knowingly assist in or induce a violation of the rules
- Lawyer with specific knowledge of another’s misconduct may not ratify the conduct
- Committing an act involving dishonesty, fraud, deceit, or misrepresentation, EVEN IF it does not involve the practice of law.
- Committing a crime that reflects adversely on lawyer’s honesty or fitness as lawyer
- Committing an act prejudicial to administration of justice
- Suggesting an ability to improperly influence a government agency or official
- Knowingly assist a judge or judicial officer in conduct that is violation of applicable rules of judicial conduct or other law
Grounds of Misconduct: California Specific Rules
- Threatening to bring “criminal, administrative, or disciplinary charges” in an effort to obtain an advantage in a civil dispute.
2) Lawyer nor firm may engage in unlawful harassment, discrimination, or retaliation on the basis of “protected characteristic.”
Duty not to file a Frivolous Claim
[ABA]
The MR prohibit lawyers from bringing or defending a proceeding, or asserting or opposing an issue in a proceeding, unless there is a basis in law and fact for doing so that is not frivolous.
Duty not to file a Frivolous Claim
[CALIFORNIA]
Under the CRPC, a lawyer must not present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by a good-faith argument for an extension, modification, or reversal of such existing law.
Claims brought to Embarrass, Delay, or Burden
[ABA]
Under the MR, a claim brought merely to embarrass, delay, or burden a third person violates the rules.
Claims brought to Embarrass, Delay, or Burden
[CALIFORNIA]
Under the CA RPC, a lawyer shall not bring or continue an action, conduct a defense, assert a position in litigation, or take an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person.
Threatening a Claim to Gain Advantage
[CALIFORNIA]
Under the CA RPC, California lawyers are specifically prohibited from, and subject to discipline for, threatening to bring criminal, administrative, or disciplinary charges in an effort to obtain an advantage in a civil dispute.
This rule does not apply to a threat to bring a civil action.
Duty to Supervise Others: Managerial Authority
[ABA] [CALIFORNIA]
Under the ABA and CRPC, a lawyer with managerial authority must make REASONABLE EFFORTS to ensure firms lawyers and non-lawyers comply with rules by instituting policies and procedures.
Duty to Supervise Others: Supervisory Authority
[ABA] [CALIFORNIA]
Under the Model Rules and the CRPC, a lawyer with direct supervisory authority over another lawyer or non-lawyer must make reasonable efforts to ensure that the supervised person’s conduct conforms to the ethics rules.
What could happen to an attorney with supervisory authority that fails to properly supervise lawyers/non-lawyers?
A lawyer who knows of misconduct at the time when it could have been avoided or mitigated, the lawyer may be subject to discipline for failing to take REASONABLE REMEDIAL ACTION.
Must a subordinate attorney still conform to the ethical rules, even when acting under direction of supervising lawyer?
Yes, unless if the attorney acted with the supervising attorney’s reasonable solution of an arguable question of professional duty/law.
How does a court determine whether a supervising attorney’s reasonable was reasonable?
If an ethical issue can be reasonably answered in only one way, it is not an arguable question.
If the issue is ambiguous, then the subordinate lawyer will not act unethically by following the supervising lawyer’s instructions.
Is a simple feeling or hunch that something may be a violation of the law enough to subject someone to ethical discipline.
No. Things to consider:
1) Subordinate attorney’s inexperience
2) Supervisor attorney’s experience
3) Whether there is any proper basis of law, even if it would be unlikely to succeed
Duty to Avoid the Unauthorized Practice of Law
[ABA] [CALIFORNIA]
Under the ABA Model Rules (“MR”) and the CRPC, a lawyer must not knowingly assist a person who is not admitted to the bar in the unauthorized practice of law.
EXCEPTIONS:
1) May associate with local counsel licensed to practice in a JDX on a temporary basis
2) May appear “pro hac vice” (this time only) with court permission.
What are the liabilities of a lawyer and a non-lawyer when engaging in the unauthorized practice of law?
Lawyer: May be subject to civil and criminal penalties and is subject to discipline under the ethics rules.
Non-lawyer: Will be subject to civil and criminal penalties, but will not be subject to discipline under the ethics rules.
Employing a Disbarred Attorney
[CALIFORNIA]
A lawyer must not employ, associate in practice with, or assist a person the lawyer knows or reasonably should know is a disbarred attorney to:
(i) render legal advice to a client,
(ii) make appearances on behalf of a client, (iii) appear as a representative of the client at a deposition or other discovery matter, or
(iv) engage in activities that constitute the practice of law.
When a lawyer hires someone ineligible to practice law (including a disbarred attorney), what is that person allowed to do?
[CALIFORNIA]
A lawyer may employ, associate in practice with, or assist an ineligible person to perform research, drafting, or clerical activities
Duty regarding Partnerships and Corporations
Partnerships: May not form a partnership with a non-lawyer if any activity constitutes practice of law.
Professional Corporations: Lawyer may not practice law in a corporation or non-profit if a non-laywer has an ownership interest, management position, or right to control professional judgment.
Duty regarding Advertisements
An attorney cannot advertise a false, misleading, or omit a material fact in advertising widely distributed public statements.
Requirements:
ABA: Name and contact information
CA: Name and address of firm
What is considered to be “misleading” advertisements?
1) Guaranteeing an outcome
2) Testimonials without a disclaimer
3) Dramatization of a prior case without a disclaimer
What is permitted on advertisements?
1) Fields of practice
2) Fees
3) Information on bar admission
4) Degrees and licenses owned
Difference between advertising oneself as a specialist vs. certified specialist
Specialist: No issue.
Certified Specialist: Only if authorized by a bar authorized entity.
Duty regarding Solicitation
Generally, an attorney is prohibited from soliciting professional employment for the purpose of pecuniary gain.
May not harass or coerce someone if they say no!
May not have employees loiter in public areas to find clients!
SOLICITAITNG CLIENTS; GENERAL ADVERTISEMENT OR SOLICITAION IS OK
When is solicitation permissible?
[ABA][CALIFORNIA]
1) Family
2) Close friend
3) Prior confidential relationship
4) [ABA] People currently using L’s services
5) [CA] If through mail or email, must include the word “advertisement”
Duty regarding Non-Compete Agreements
May not offer or enter in a partnership or settlement that restricts the Ls ability to practice law.
EXCEPTION:
Retirement!
Duty regarding the Sale of Practice
Permitted if:
1) Sale is substantially all of L’s practice
2) L uses competence to find buyer
3) Client fees not increased
4) Written notice to client (consent presumed within 90 days)
Duty regarding Referral Fees
[ABA] VS [CA]
MR: Generally prohibits, absent nominal fee. But merely recommending another attorney violates the rule.
CA: Generally prohibits, except when attorney gibes gift to person for referral for employment, so long as no consideration.
Further, cannot be to encourage additional referrals or good testimony in the future!
