Module 1 (Regulation of Legal Profession) Flashcards
who regulates lawyers?
the states’ highest court
what references does the state use to decide conduct?
1) ethical rules (ABA)
2) case law
3) rules of the court
what are 2 things that the Bar’s fitness and character Dept not admit you for?
1) false statements (knowingly false)
2) failure to disclose information
what constitutes violating the professional of misconduct?
1) violating or attempting to violate the rules of conduct
2) assisting or inducing another person to violate the rules
3) using the acts of another person to violate the rules
what constitutes professional misconduct?
1) violating the rules of professional misconduct
2) certain criminal acts
3) dishonesty, fraud, deceit or misrepresentation
4) harassment
is a lawyer subject to discipline for practicing in a jurisdiction outside their own?
Yes but there are exceptions
what must the unadmitted lawyer to that jx not do?
1) represent that they are admitted to practice in the jx
2) establish an office or have continuous presence in that jx
what are some reasons that a lawyer would be able to have dealings in a state that they are not admitted to?
1) association with a local lawyer that actively participates in the matter
2) they have special permission
3) for mediation or arbitration
what is it called when a lawyer has permission to temporarily practice in another jx?
pro hac vice
when may a lawyer be admitted to a jx pro hac vice?
when it is for the purposes of the matter ONLY and they intend to engage in preliminary activities in the state
what do preliminary activities include to be admitted pro hac vice?
1) meeting with clients
2) reviewing documents
3) interviewing witnesses
may a foreign lawyer be admitted pro hac vice?
Yes the same circumstances need to apply as for those who are not foreign and they need to be in good standing in their jx
what law will govern when a foreign lawyer is temporarily admitted into a jx?
the international law or the foreign jx
does the judge have discretion to limit the foreign lawyer’s participation in the matter?
Yes, they are subject to stricter scrutiny
when can a lawyer establish a systematic or continuous practice in a different jx?
1) when a lawyer is employed by their only client
2) foreign lawyers advising on US law
3) federal or local law authorizes it
when a lawyer is employed by their only client and they establish a practice in another jx, are they allowed to litigate in that state?
Yes but they must seek admission via pro hac vice
may a foreign lawyer directly advise their client on the law of the US?
NO, they must consult a lawyer that is licensed by the relevant jx
what disciplinary rules is a lawyer subject to when admitted pro hac vice to another state?
Both jurisdictions
what are in-house or government lawyer who practices in a different jx subject to when their client is their only client?
the 2nd jx’s client security assessments and continuing legal education requirements
what is considered “the practice of law”
1) an activity involving legal knowledge and skill beyond what a layperson would know
2) the activity constitutes advice or services concerning binding legal rights
3) the activity is traditionally performed by lawyers
what are some activities that is not considered “the practice of law”
1) an acct representing a client assigned by a state or federal agency
2) a nonlawyer drafting legal documents
what is giving tax law advice considered?
an unauthorized practice of law but accountants or other lay people can prepare tax returns and answer questions incidental to the preparation of tax returns
can a lawyer delegate tasks to another person such as a paralegal or intern?
Yes but they must supervise the work carefully and be ultimately responsible for the results
may a lawyer advise and instruct non lawyers whose employment requires knowledge of the law like claim adjusters, band trust officers, social workers, accountants, and government employees?
Yes
can a lawyer advise a person that wishes to appear on their own behalf?
Yes
is lawyer permitted to assist a lawyer whose license has been suspended or revoked?
no it is a violation of the model code
may a lawyer hire a disbarred or a suspended lawyer to do work that a layperson is permitted to do?
Yes but they are not permitted to do any legal work
what are the partners, supervisory lawyers in a government agency and direct supervisors of a firm responsible for when it comes to the ethic rules?
must make reasonable effort to assure that other lawyers adhere to the rules
how should lawyers in a small firm assure ethic adherence?
with informal supervision and occasional abomination
whats should lawyers in a larger firm to to assure ethic adherence?
continuing legal education
when is a lawyer subject for a disciplinary violation for another lawyer or a nonlawyer’s misconduct?
1) the 1st lawyer ordered the 2nd lawyers or knew about it or ratified it
2) the first lawyer is a partner or manager or has direct supervisory responsibility over the second lawyer and knows about the misconduct at a time when its consequences can be avoided or mitigated and fails to take remedial action
are orders from a supervisory lawyers that violate the ethic rules an excuse for the violation?
NO but may be relative to whether the subordinate had knowledge that is required for some ethic violations
what happens when a debatable ethics question arises?
someone must decide on a course of action and that responsibility must rest with the supervisory lawyer
if there was a debatable ethics question and the supervisory lawyer decides on a course of action and it turns out to be wrong, will the subordinate get in trouble?
no
can a lawyer share their legal fees with a non lawyer?
NO, they must not (paying a non lawyer a salary does not count as fee splitting)
what happens when one of the lawyers in a firm dies regarding death benefits?
the others pay a death benefit over a reasonable period of time to the dead lawyer’s estate or designated person
can a nonlawyer employee be included in a compensation or retirement plan even though it’s considered profit sharing?
yes
can a lawyer’s practice be sold to another lawyer?
yes
what happens when someone buys the practice of lawyer that died or is disable , or disappeared?
they may pay the purchase price to the estate or reps of the lawyer
when the court awards attorney fees to the winning lawyer, may they share the fee with a nonprofit organization that hired or recommended him as counsel?
yes
can a lawyer form a partnership with a nonlawyer?
they must not if ANY of the partnership activities constitute the practice of law
when can a lawyer NOT practice in an incorporated law firm or an association authorized to practice law when a nonlawyer is involved?
1) the nonlawyer owns interest in the firm or association
2) the nonlawyer is a corporate director or officer
3) the nonlawyer has the right to direct or control the professional judgment of a lawyer
can a lawyer allow a person that recommends, employs, or pays for them to serve a client to direct or regulate their professional judgment?
NO they must not
can a lawyer make or offer an agreement in which the restriction on a right for the lawyer to practice is part of a settlement of a client controversy?
NO
when do the rules permit someone to sell their law practice, including goodwill?
1) the seller ceases to engage in the private practice of law
2) the entire practice or field of practice is being sold to one or more lawyers or firms
3) written notice is given to the seller’s clients regarding the sale
when a lawyer sells their practice what is expected of their clients?
they need to be given the right to retain other counsel or take possession of their files
do clients need consent to transfer files if their lawyer sells the practice?
Yes if they take action within 90 days
if no notice can be given given to a client when their lawyer sells their practice, what is required for the transfer of representation to the purchaser?
a court order is needed
what must a seller exercise when identifying that a purchaser is qualified to buy their practice?
competence
after a lawyer sells their practice, can they continue to be employed as a lawyer at the firm?
yes
after selling their practice, does an attorney’s return to private practice due to unanticipated change in circumstances violate the rules?
not necessarily
must the purchaser of a firm take on the firm’s clients?
YES, they must take on all client matters and not just those that generate substantial fees
if a lawyer is providing nonlegal services that are not distinct from their legal services, do the model rules apply to both services?
YES
what must a lawyer do when providing nonlegal services through an entity that is not their law office but that she controls (either alone or with other lawyers)?
They must take reasonable steps to assure that the people that receive the nonlegal services understand that those services are not legal service and that the rules of professional conduct (like attorney-client privilege) don’t cover those services
what conditions must a lawyer satisfy when entering into a business transaction with their own client?
1) terms must be fair to the client
2) terms must be fully disclosed to the client in writing and it must cover the essential terms of the transaction and the role of the lawyer
3) client must be advised in writing that he should seek advice from an independent lawyer regarding the arrangement
4) client must give informed consent in writing signed by the client
what are some examples of the practice of law that requires a law license?
1) appearing at a judicial proceeding
2) drafting documents that affects substantial legal rights (wills, trusts etc.)
3) negotiating settlements
4) giving legal advice
what are some examples of activities that you do not need a law license to do?
1) interview people (not a deposition)
2) filling in forms
3) preparing tax returns
what are some methods to establish out of state law practice?
1) establish a relationship with a lawyer in that state
2) pro hac vice
3) mediation or arbitration
4) matter reasonably related to the lawyer’s home state practice
what are the 2 ways to set up a permanent office in a state where you’re not licensed?
1) work as in-house counsel for an organization or a government lawyer
2) restricted branches of law (rare)
when a lawyer is providing legal services and non legal services at the same time to the same client do the ethic rules apply to the nonlegal services?
Yes
