MRPC 5.4-5.7: ACCESS RESTRICTIONS Flashcards
What does Rule 5.4(a) say? What is the policy behind it?
a) A lawyer or law firm shall not share legal fees with a non-lawyer
[1] This is to protect the lawyer’s professional independence of judgment. Where someone other than the client pays for the lawyer’s fees or salary, or recommends employment of that lawyer, that arrangement does not modify the lawyer’s obligation to the client.
What are the exceptions for Rule 5.4(a), listed 1-4?
1) An agreement by a lawyer with the lawyer’s firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer’s death to the lawyer’s estate or to one or more specified persons;
2) Lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may, pursuant to provisions of 1.17, pay to the estate or other representative of that lawyer the agreed-upon purchase price;
3) Lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in-part on a profit-sharing arrangement; or
4) Lawyer may share court-awarded legal fees with a nonprofit organization that employed, retained, or recommended employment of the lawyer in the matter.
What does Rule 5.4(b) say?
A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.
What does Rule 5.4(c) say?
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 legal services.
What does Rule 5.4(d) say?
A lawyer shall not practice with or in the form of of a professional corporation or association authorized to practice law for a profit IF
1) Nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;
2) Nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation; or
3) Nonlawyer has the right to direct or control the professional judgment of the lawyer.
What does rule 5.5(a) say?
(a) a lawyer shall not practice law in a jurisdiction without a license from the jurisdiction
What does Rule 5.5(b) say?
(b) a lawyer who is not admitted to practice in this jurisdiction shall not:
(1) establish an office or continuous presence where they are not licensed; or
(2) hold themselves out as being admitted in a different jurisdiction
Can a lawyer admitted in another U.S. jurisdiction that has not been disbarred provide services on a temporary basis?
Yes. Rule 5.5(c)
a lawyer admitted in another U.S jurisdiction, that has not been disbarred, may provide services on a temporary basis, IF:
(1) you collaborate with local counsel or co-counsel;
(2) “Pro hac vice”
(3) “Pro hac vice” but in a mediation and arbitration
(4) are not within (c)(2) or (c)(3), but the legal services arise out of or are reasonably related to your work in the jurisdiction you are licensed in
True or false: In-house counsel is an exception to the general rule that lawyers cannot practice nationally.
True. Rule 5.5(d/e)
In-house counsel constitutes an exception to the general rule AND in that role you can represent the entity nationally
What is the policy behind preventing lawyers from practicing across the U.S.?
1) Historical reason/not as strong today – states were sovereign and had very different laws → Today this is different, and laws in most states are very similar.
2) Proponents of the current system say
Though there are many federal laws, states still have distinct laws and we want lawyers to be experts in the law so that they can give competent advice.
What does Rule 5.6(a) say? What is the exception?
A lawyer shall not participate in offering or making:
(a) partnership…that restricts the right of a lawyer to practice after termination of the relationship, EXCEPT an agreement concerning benefits upon retirement
What does Rule 5.6(a) say? What is the exception?
A lawyer shall not participate in offering or making:
(a) partnership…that restricts the right of a lawyer to practice after termination of the relationship, EXCEPT an agreement concerning benefits upon retirement
What does Rule 5.6(b) say?
A lawyer shall not participate in offering or making:
(b) An agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a client controversy.
Lawyers cannot be parties to a non-compete agreement
What does rule 5.7(a) say?
Lawyer shall be subject to the Rules of Professional Conduct with respect to the provision of law-related services, as defined in paragraph (b), if the law-related services are provided:
(1) by the lawyer in circumstances that are not distinct from the lawyer’s 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 client-lawyer relationship do not exist.
What does 5.7(b) say?
The term “law-related services” denotes services that might reasonably be performed in conjunction with and in substance are related to the provision of legal services, and that are not prohibited as unauthorized practice of law when provided by a nonlawyer.
