MPRE Flashcards
Sources of Regulation – The State
regulation by the states in exercise of their police powers
Sources of Regulation - State Courts
intimately connected with the administration of justice – courts have inherent power to regulate
Highest courts typically issues:
1. Discipline
2. Rules
Sources of Regulation - State Rules
Every State has Rules
Most states adopted ABA
Sources of Regulation - State Case Law
Every state has case law
Sources of Regulation - State/Local Rules of Court
State courts typically have rules
Sources of Regulation - State Bar Associations
association of lawyers
integrated system = must be admitted to practice
Typical Duties:
1) Administer Bar Exam
2) CLE programs
3) assist courts in regulating and disciplining lawyers
Sources of Regulation - Congress and State legislatures
Passed some statutes impacting practice
Sarbanes-Oxley – mandatory reporting for securities lawyers
State evidence statutes defining the scope of the attorney client privilege
Sources of Regulation – The Federal System - Courts
Federal court or agency
Federal statutes, case law and court/agency rules
Each federal court has its own bar
must be a member to practice before the court
Sources of Regulation – The Federal System - Government Attorney
Federal attorney subject to the state laws/rules and local federal court rules (where attorney engages in their duties)
Only subject to ethical rules (not evidence/procedure/substantive law)
Multiple State Bar Admission
lawyer subject to regulation by each state where the lawyer is admitted
Doesn’t matter where the lawyer practices or where conduct occurred
Differing state regulations – conflict of law analysis
Admission to Bar
State by state - Typically:
1. Completed College and Law School
2. passed bar exam
3. Bar admission committee (proof of good moral character)
Sworn in before the highest court (not entitled to practice in other states)
Admission - Application
must respond truthfully and completely
Admission - Application - False Statements
must not knowingly make false statements of material fact
Admission - Application - Failure to Disclose
must not
1) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter OR
2) knowingly fail to respond to a lawful demand for information from an admissions authority
* Confidential information not included
Admission - Character and Fitness
High Moral standards and are mentally/emotionally stable
Admission - Character and Fitness - Investigative Procedure
Questionnaire
References
(maybe fingerprints and photographs)
Admission - Character and Fitness - Investigative Procedure - Burden of Proof/Duties of Applicant
burden of proof of good moral character is on the applicant
duty to to cooperate with a reasonable investigations
required to make disclosures relevant to fitness to practice
Admission - Character and Fitness - Investigative Procedure - Procedural Rights
right to due process right to know charges filed against explain information confront critics entitled to judicial review for denial based on bad moral character (usually by highest court)
Admission - Character and Fitness - Conduct Relevant
all aspects of past conduct which reflect on honesty and integrity
any conduct or charges (including acquitted)
any litigation which applicant was a party
Admission - Character and Fitness - Criminal Conduct
Mere conviction not sufficient to deny admission
Conviction must be a crime of
1) moral turpitude (intentional dishonesty for personal gain – bribery, extortion, robbery, etc.) OR
2) violence (murder, rape, etc.)
*not violations actions while adolescent and civil disobedience
Admission - Character and Fitness - Rehabilitation
Admission still possible even with crimes of moral turpitude
demonstrate sufficient rehabilitation of his character/present fitness to practice law
Admission - Character and Fitness - Concealment of Past Conduct
false statements or concealment to an inquiry of the admissions committee is evidence sufficient to deny admission based on moral character (even if underlying conduct was not of moral turpitude)
Admission - Character and Fitness - Political Fitness
failure to uphold state/federal constitution may be denied admission
Membership in Communist party not sufficient to deny admission (no showing of attempt to overthrow government)
Admission - Citizenship and Residency
Not valid requirements for admission
Citizenship requirement violates equal protection clause
Residency requirement violates Privileges and immunities clause
Regulations After Admissions
upon admission, lawyer is subject to applicable law
Regulations After Admissions - Misconduct
professional misconduct to
1) violate or attempt to violate any of the Rules
2) knowingly assist or induce another person to violate the rules OR
3) use the acts of another person to commit a violation
Regulations After Admissions - Misconduct- Certain Criminal Acts
subject to discipline for criminal reflects adversely on his
1) honesty
2) trustworthiness
3) fitness as a lawyer
crime must have some characteristic that is relevant to the practice of law (dishonesty, breach of trust, interference with admin of justice, most violent crimes etc.) – not solicitation of a prostitute, DUI, marijuana
Regulations After Admissions - Misconduct - Conduct
Any conduct involving 1) Dishonesty 2) Fraud 3) Deceit 4) Misrepresentation Results in misconduct Doesn't have to raise to a crime (Cheating on bar, plagiarism, misusing expense account)
Regulations After Admissions - Misconduct - Prejudicial to Admin of Justice
Falsifying evidence
improper delaying tactics
Frivolous claims
Rare because litigation rules apply as well
Regulations After Admissions - Misconduct - Stating or Implying ability to improperly influence officials
must never state ability to improperly influence government officials
obligated to explain that there is no special influence if related to official if client mentions relationship
Regulations After Admissions - Misconduct - Assisting judge in violation of judicial code
knowingly assisting a judge/judicial officer in violating the Code of Judicial Conduct or other law (for example prohibited ex parte communicaiton)
Regulations After Admissions - Misconduct - Harassment/Discrimination
in the conduct of practicing law, must not engage in conduct knows or reasonably should know is harassment/discrimination on basis of
1) race
2) sex
3) religion
4) national origin
5) ethnicity
6) disability
7) age
8) sexual orientation
9) gender identity
10) marital status
11) socioeconomic status
* ruling of preemptory challenge based on discrimination does not violate this rule
Regulations After Admissions - Misconduct - Harassment/Discrimination - Exceptions
1) Limit practice to underserved population
2) provide legitimate advice or advocacy otherwise consistent
3) Promote diversity/inclusion
Regulations After Admissions - Duty To Report
lawyer that knows that another lawyer/judge violated the rules that raises a substantial question about honesty/trustworthiness/fitness, the lawyer MUST report the violation to appropriate authority
Regulations After Admissions - Duty To Report - Knowledge Definition
actual knowledge
may be inferred from circumstances
more than mere suspicion
may report suspected misconduct
Regulations After Admissions - Duty To Report - Failure to Report
failure to report results in that lawyer subject to discipline Exception - no duty to report
1) Info learned during attorney/client relationship
2) while helping in an substance abuse assistance program
Regulations After Admissions - Discipline
punishment for breaking the rules
Regulations After Admissions - Discipline Process
1) Complaint
2) Screening
3) Hearing
4) Sanctions
Regulations After Admissions - Discipline Process – Complaint
start point, brought by anyone with knowledge (filing is privileged - not basis for defamation)
Regulations After Admissions - Discipline Process – Screening
without merit then dismissed (no right to appeal), with merit lawyer asked to respond. after response a potentially scheduling a hearing
Regulations After Admissions - Discipline Process – Hearing
1) Due process required (right to counsel, proper notice, heard/introduce evidence, cross examine, limited to charges in compliant), 5th Amendment protection (no disciplinary action based only on 5th).
2) Exclusionary rule of criminal actions don’t apply (evidence)
3) Burden of Proof - on party prosecuting the charge, beyond a preponderance of the evidence, inadmissible hearsay not included
4) Decision/Review - entitled to review by highest court, burden shifted to attorney to show discipline not supported by the record/unlawful
Regulations After Admissions - Discipline Process – Sanctions
Based on severity of the misconduct
1) private and public reprimand/censure – acknowledgement, on lawyers record
2) suspension of license (definite period of time automatically reinstated)
3) Disbarment (permanent revocation of license) – may apply for reinstatement
4) Other - probation, restitution, costs of proceedings, limitations on practice
Regulations After Admissions - Discipline Process – Choice of Law
Rules of jurisdiction where conduct occurred will apply (unless predominate effect is in some other jurisdiction – lawyer not subject to discipline if they reasonably believe the predominant effect will be in a specific jurisdiction)
Ethics rules of the jurisdiction of the tribunal that hears the complaint (default rule)
Regulations After Admissions - Discipline Process – Choice of Law Agreements (Conflicts of Interest)
Only about conflicts of interest
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