Miscellaneous duties / Duties to the Profession / The code of Judicial conduct

Question 1

Rule 1.17 – Sale of a Law Practice

Answer 1

• Can sell only if: retiring, relocating, or giving up an area of practice
• Purchaser must be a lawyer
• No piecemeal sale of cases. Purchaser must accept all matters in the practice, subject to client consent
• Seller must ensure that:
  
  • The buyer is competent;
  • There are no conflicts of interest;
  • Confidentiality is protected.
• Seller must give 90 day written notice of the sale to clients
• Clients may consent to the new lawyer or find other counsel. (If client whereabouts unknown, court order required).
• Fees to clients shall not increase by reason of the sale.

Question 2

Duties of Supervision

Answer 2

• Rule 5.1 – Duties of Supervisory Lawyers
• Rule 5.2 – Duties of Subordinate Lawyers
• Rule 5.3 – Duties Re: Non-Lawyer Assistants

Question 3

Rule 5.1 – Responsibilities of Partners, Managers, and Supervisory Lawyers

Rule 5.1(a):

Answer 3

• A partner or other lawyer with comparable supervisory authority
• shall make reasonable efforts to ensure that the firm has in effect
• measures giving reasonable assurance that all lawyers in the firm conform their conduct to the Rules of Professional Conduct

Question 4

Rule 5.1(b):

Answer 4

• A lawyer having direct supervisory authority over another lawyer
• shall make reasonable efforts to ensure
• that the other lawyer’s conduct conforms to the Rules of Professional Conduct

Question 5

Rule 5.1(c):

Answer 5

• A lawyer shall be responsible for another lawyer’s violation of the RPC, if:
  
  • The lawyer orders or, with knowledge of the specific conduct ratifies it; or,
  • The lawyer is a supervisory lawyer and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action

Question 6

Rule 5.2 – Responsibilities of a Subordinate Lawyer

Rule 5.2(a):

Answer 6

• A lawyer is bound by the Rules of Professional Conduct
• notwithstanding that the lawyer acted at the direction of another person

Question 7

No good soldier defense!!

Answer 7

• You can not escape responsibility for ethical misconduct by claiming that you “followed orders.”
• There is no “good soldier defense.”

Question 8

Exception: Rule 5.2(b):

Answer 8

• A subordinate lawyer does not violate the RPC
• if that lawyer acts in accordance with
• a supervisory lawyer’s reasonable resolution of an arguable question of professional duty

*E.G., If the ethical violation is not clear, the subordinate can defer to the judgment of the supervisor.

Question 9

Rule 5.3 – Responsibilities Regarding Non-Lawyer Assistants

Rule 5.3(a):

Answer 9

• A partner or other lawyer with comparable managerial authority
• shall make reasonable efforts to ensure that the firm has measures in effect
• giving reasonable assurance that the conduct of non-lawyer assistants is compatible with the professional obligations of the lawyer

Question 10

Rule 5.3(b):

Answer 10

• A lawyer having direct supervisory authority
• shall make reasonable effors to ensure
• that the non-lawyer’s conduct is compatible with the professional obligations of the lawyer

Question 11

Rule 5.3(c):

Answer 11

• A lawyer shall be responsible for a non-lawyer’s misconduct if:
  
  1. The lawyer orders, or with knowledge of the specific conduct, ratifies it; or,
  2. The lawyer is a partner or lawyer with comparable managerial authority and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action

Question 12

Review of 5.1 – 5.3

Answer 12

• If you have any supervisory authority over a lawyer or non-lawyer staff person, you must have measures in place to assure subordinate’s compliance with the rules (training, etc.)
• If you order someone under your supervision to engage in conduct that violates a rule or, if you know of a violation but take no remedial action, YOU are subject to discipline
• Following someone else’s directive is NOT a defense to a claim of misconduct

Question 13

Rule 5.4 – Professional independence of lawyer

Rule 5.4(a):

Answer 13

• A lawyer / law firm shall not share fees with a non lawyer except that:
  
  1. You can pay a deceased lawyer’s estate any earned attorney fees of the lawyer;
  2. You can pay a deceased, disabled, or disappeared lawyer’s estate the purchase price of a practice;
  3. Non-lawyer employees can be included in compensation or retirement plans with a profit-sharing arrangement; and,
  4. You can share court awarded legal fees with a non-profit organization that employed, retained or recommended your services in the matter

Question 14

Rule 5.4(b)

Answer 14

• A lawyer shall not form a partnership with a non-lawyer
• if any partnership activities consist of the practice of law

Question 15

Rule 5.4(c)

Answer 15

• A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another
• to direct or regulate the lawyer’s professional judgment in rendering such services

*Can not allow third persons to interfere with your professional judgment

Question 16

Rule 5.4(d)

Answer 16

• Non lawyers can not have an interest in a lawyer corporation or partnership
• Non lawyers can not serve as officers or directors
• Non lawyers can not direct or control the professional judgment of a lawyer

Question 17

Rule 5.6 – Restrictions on Right to Practice

Answer 17

• A lawyer shall not participate in offering or making:
  
  1. A partnership, shareholders, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or,
  2. An agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a client controversy

Question 18

Rule 5.7(a) – Responsibilities Re: Law Related Services

Answer 18

• A lawyer is subject to the RPC re: law-related services if:
  
  1. The servies are provided in circumstances related to the provision of legal services to clients; or
  2. In other circumstances by an entity controlled by the lawyer individually or with others if the lawyer fails to take reasonable measures to assure that a person obtaining the law-related services knows that the services are not legal services and that the protections of the a-c relationship do not exist

Question 19

Rule 5.7(b)

Answer 19

• “Law related” services are services that:
  
  • Might reasonably be performed in conjunction with and in substances are
  • related to the provision of legal services

Question 20

Rule 2.3 – Evaluation for Use by Third Persons

Answer 20

• You may provide an evaluation of a matter affecting a client
• for the use of someone other than the client
• if you reasonably believe that making the evaluation is compatible with other aspects of your relationship with the client

Question 21

Rule 2.3(b):

Answer 21

• When you know or reasonably should know aht the evaluation is likely to affect the client’s interests materially and adversely,
• you shall not provide the evaluation unless the client gives informed consent.

*If the evaluation will be against the client’s interests, you can not perform the evaluation absent the client’s informed consent

Question 22

Rule 2.3(c):

Answer 22

• Except as disclosure is authorized in connection with a report of an evaluation,
• information relating to the evaluation is otherwise protected by Rule 1.6

*Except to the extent must disclose the evaluation to the third party, the information is protected by Rule 1.6

Question 23

Rule 8.1 – Maintaining the Integrity of the Profession

Answer 23

• An applicant for admission to the bar, or a lawyer in connection with a bar application or disciplinary, shall not:
  
  1. Knowingly make a false statement of fact; or,
  2. Fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen; or,

Knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, unless protected by Rule 1.6

Question 24

Rule 8.2 – Judicial and Legal Officials

Answer 24

• You shall not make a statement that you know to be false or with reckless disregard as to its truth or falsity
  
  • concerning the qualifications or integrity of a judge, adjudicative officer or public legal officer, or a candidate for judicial office
• If you are a candidate for judicial office you must comply with the applicable provisions of the Code of Judicial Conduct

Question 25

Rule 8.3 – Duty to Report Professional Misconduct

Answer 25

• A lawyer who knows that another lawyer has committed a violation of the RPC
• that raises substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects,
• shall inform the appropriate professional agency

Question 26

Rule 8.3(b):

Answer 26

• A lawyer who knows that a judge has committed a violation of the CJC
• that raises substantial question as to the judge’s fitness for office
• shall inform the appropriate authority

Question 27

Rule 8.3(c)

Answer 27

• This rule does not require
• disclosure of information otherwise protected by Rule 1.6, or
• information gained by a lawyer or judge while participating in an approved lawyers assistance program

Question 28

Rule 8.4 – Misconduct

Answer 28

• It is professional misconduct for a lawyer to:
  
  1. Violate or attempt to violate the RPC, knowingly assist or induce another to do so, or to do so through acts of another;
  2. Commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
  3. Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
  4. Engage in conduct prejudicial to the administration of justice;
  5. State or imply the ability to influence improperly a government agency or official or to achieve results by means that violate the RPC or law;
  6. Knowingly assist a judge or judicial officer in conduct that is in violation of the CJC or other law