Other Duties to Professionals and the Public Flashcards
Unauthorized practice of law
A lawyer is prohibited from:
1. practicing law in a jurisdiction where they are not licensed
2. assisting another person in the unauthorized practice of law
While a lawyer may delegate work, the lawyer must still supervise the work and will be ultimately responsible for the results
Multi-jurisdictional practice
Generally, a lawyer who is licensed to practice in one jurisdiction but not another must not:
1. open a law office in the other jurisdiction;
2. hold themselves out as practicing in the other jurisdiction; or
3. establish a systematic or continous presence in the other jurisdiction without first becoming licensed
Permitted temporary practice by out-of-state lawyer
An out-of-state lawyer can practice in a state on a temporary basis in any of the following situations:
1. the lawyer associates with an active local lawyer
2. the lawyer obtains “pro hac vice” admissions for a particular litigation matter
3. the temporary practice reasonably relates to the lawyer’s home state practice and pro hac vice admission is not required for such a practice
Permitted permanent practice by out-of-state lawyer
California exception applies
A lawyer who is admitted in another state or in a foreign jurisdiction, and who is not disbarred or suspended in any jurisdiction, can provide legal services through an office in a different jurisdiction under the following circumstances:
1. the lawyer is employed by their only client (i.e., in-house counsel)
2. The lawyer is authorized by federal or local law to practice in a restricted branch of law (i.e., patent prosecution)
In CA: additional restrictions on out-of-state lawyers by practice area
Bar admissions and disciplinary matters
California exception applies
Lawyers and Bar applicants must not:
1. knowingly make a false statement of material fact
2. fail to disclose a fact necessary to correct a misapprehension
3. knowingly fail to respond to a lawful demand for information
In CA: applicant is also prohibited from making a statement with reckless disregard as to its truth, AND it does not include the provision regarding failure to respond
Providing law-related services
Even though law related services are not legal services, the rules provide that a lawyer who provides law-related services is subject to the rules of professional conduct in two (2) situations:
1. when the lawyer provides services under the circumstances that are not distinct from their provision of legal services to clients
2. when the law related services are provided by an entity controlled by the lawyer, unless the lawyer takes reasonable measures to ensure that the recipient knows that the services provided by the entity are not legal services
Arrangements restricting a lawyer’s right to practice
The followinfg arrangements are prohibited:
1. any partnership, employment, or similar agreement restricting the lawyer’s right to practice after termination of the relationship, except for an agreement concerning retirement benefits
2. a settlement agreement for a client that restricts the right of the lawyer to practice law
This rule does not NOT prohibit restrictions in an agreement for the sale of a law practice or in an agreement with a disciplinary authority.
Responsibilities of subordinate lawyer
A subordinate lawyer will be responsible for clearly unethical misconduct even if they were just following orders.
However, a subordinate will not be subject to discipline for acting in accordance with the supervisor’s reasonable resolution of an arguable question of professional duty.
When is a lawyer subject to discipline for misconduct of another lawyer
- the lawyer ordered the second lawyer’s (or nonlawyer’s) misocnudct, or knew about it and ratified it; or
- the lawyer was a partner or manager or had direct supervisory responsibility over the second lawyer, and they knew about the misconduct at a time when the consequences could have been avoided and failed to take reasonable remedial action.
What must a lawyer do when she finds out another lawyer has engaged in misconduct?
A lawyer who knows that another has violated the rules in such a way that raises a substantial question as to the lawyer’s honesty, trustworthiness, or fitness must report the violation to the appropriate professional authority.
See exceptions card
Exceptions to the reporting requirement (i.e. reporting other’s misconduct)
Disclosure is not required when:
1. the information is protected by the lawyer’s duty of confidentiality
2. the lawyer gained the infromation while serving as a member of an approved lawyer’s assistance program that helps lawyers and judges deal with substance abuse problems.
