OTHER DUTIES TO THE PROFESSION AND THE PUBLIC Flashcards
UNAUTHORIZED PRACTICE OF LAW
BOTH:
A lawyer is prohibited from:
(1) practicing law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction, or
(2) assisting another person in the unauthorized practice of law.
(It is not unauthorized practice, however, for a layperson to represent themselves.)
Examples of activities that constitute law practice include: appearing in judicial proceedings; engaging in settlement negotiations; drafting documents that affect substantial legal rights and obligations (for example, contracts, wills, trusts).
EMPLOYMENT OF DISBARRED, SUSPENDED, RESIGNED, OR VOLUNTARILY INACTIVE LAWYER (CALIFORNIA ONLY)
CA ONLY:
In addition to the prohibition on assisting with unauthorized practice, an active California lawyer must comply with various requirements upon engaging the services of a disbarred, suspended, resigned, or voluntarily inactive lawyer (“ineligible person”).
Prohibited Activities:
Legal consultation;
negotiations;
appearances on client’s behalf;
handling the client’s funds;
other activities that constitute the practice of law.
Permitted Activities:
Research, drafting, and clerical assistance; direct communication with the client limited to scheduling, billing, updates, etc.
The ineligible person may attend a deposition, but only for the limited purpose of providing clerical assistance to the lawyer.
Written Notice to State Bar and Clients:
The lawyer must notify the State Bar in writing before engaging the ineligible person and after the person’s employment is terminated. The lawyer must also provide written notice to all clients on whose matters the ineligible person will work.
**Rule Does Not Apply to Certain Support Activities: **
If the person is employed for the sole purpose of providing support activities such as equipment maintenance, courier or delivery services, catering, reception, typing, etc., the lawyer need not notify the State Bar or clients. There is no specific ABA counterpart to this rule.
PERMITTED TEMPORARY PRACTICE BY OUT-OF-STATE LAWYER
FRE:
* Association with active local lawyer
* Pro hac vice admission
* Temporary practice or alternative dispute resolution arising out of home state practice.
Lawyers from foreign countries may practice under similar circumstances as above, or if their services are governed primarily by international or foreign law.
CA:
The California rule is similar; however, foreign lawyers generally may not practice on a temporary or permanent basis in California.
There is a limited exception for “Registered Foreign Legal Consultants,” who are allowed to provide advice regarding the law in the country in which they are licensed.
PERMITTED PERMANENT PRACTICE BY OUT-OF- STATE LAWYER
- Lawyer employed by only client (for example, in-house counsel)
- Legal services authorized by federal or local law (for example, patent prosecution)
BAR ADMISSIONS AND DISCIPLINARY MATTERS
ABA:
An applicant, or a lawyer in connection with another person’s application or disciplinary matter, must not:
* Knowingly make a false statement of material fact in connection with the application or disciplinary matter.
* Fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter (unless the information is protected by the lawyer’s duty of confidentiality to a client).
* Knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority (unless required by the lawyer’s duty of confidentiality to a client)
CA:
The California rule differs as follows:
* It also prohibits an applicant from making a statement with reckless disregard as to its truth or falsity.
* It does not include the provision regarding failure to respond.
RELATIONSHIPS WITH NONLAWYERS
- A lawyer must not form a partnership or other organization with a nonlawyer if any of the organization’s activities consist of the practice of law.
- Law firms must not be set up in such a way that a nonlawyer:
(1) owns an interest therein,
(2) is a corporate officer or director thereof, or
(3) has the right to direct or control a lawyer’s professional judgment. - A lawyer must 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.
LAW-RELATED SERVICES (ABA ONLY)
ABA ONLY:
The ABA Rules also address the provision of law-related services
(such as financial planning, accounting, trust services, real estate counseling, and tax return preparation).
Even though law-related services are not legal services, a lawyer who provides such services is subject to the RPC in two situations:
* When the lawyer provides services under circumstances that are not distinct from their provision of legal services to clients.
* When the law-related services are provided by an entity controlled by the lawyer (individually or with others), unless the lawyer takes reasonable measures to ensure that the recipient knows that the services provided by the entity are not legal services and that the protections of the lawyer-client relationship do not apply.
California does not have a counterpart to this rule.
ARRANGEMENTS RESTRICTING LAWYER’S RIGHT TO PRACTICE
BOTH:
The following arrangements restricting a lawyer’s right to practice law are prohibited:
* 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.
* A settlement agreement for a client that restricts the right of the lawyer to practice law (for example, settling with the opposing party under the condition that the lawyer will never represent another client against that party again).
This rule does 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 lawyer will not be subject to discipline for acting in accordance with a supervisor’s reasonable resolution of an arguable question of professional duty.
LAWYER’S RESPONSIBILITY FOR ANOTHER PERSON’S MISCONDUCT
BOTH:
A lawyer is subject to discipline for a disciplinary violation committed by a second lawyer—or for an act of a nonlawyer that, if done by a lawyer, would violate a disciplinary rule— when either of the following apply:
* The lawyer ordered the second lawyer’s (or nonlawyer’s) misconduct, or knew about it and ratified it; or
* The lawyer was a partner or manager or had direct supervisory responsibility over the second lawyer (or nonlawyer), and they knew about the misconduct at a time when its consequences could be avoided or mitigated and failed to take reasonable remedial action.
PARTNER’S OR SUPERVISOR’S DUTY TO TRAIN AND GUIDE IN ETHICS MATTERS
A partner or other managing lawyer in a firm must make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all members of the firm conform to the RPC.
A lawyer with direct supervisory authority over particular lawyers has the same responsibility with respect to those lawyers.
Managing and supervisory lawyers have the same duties as above with respect to nonlawyers (whether directly employed by the firm or acting as outside contractors).
The lawyer must make reasonable efforts to assure that the nonlawyer’s conduct is compatible with the professional obligations of the lawyer.
FALSE OR RECKLESS STATEMENTS ABOUT JUDICIAL AND LEGAL OFFICIALS
ABA:
A lawyer must not make a statement that the lawyer knows is false about the qualifications or integrity of a judge, hearing officer, or public legal official, or about a candidate for a judicial or legal office. The same rule applies to statements made with reckless disregard as to truth or falsity.
CA:
The California rule applies to statements about judicial officials and candidates only;
it does not apply to statements about public legal officials or candidates for legal office.
POLITICAL CONTRIBUTIONS TO OBTAIN GOVERNMENT EMPLOYMENT (ABA ONLY)
ABA ONLY:
The ABA Rules provide that a lawyer or firm must not accept a government legal engagement or an appointment by a judge if the lawyer or firm makes or solicits a political contribution for the purpose of obtaining such employment or appointment (“pay to play” contributions).
California does not have a counterpart rule.
REPORTING PROFESSIONAL MISCONDUCT
ABA:
A lawyer who knows that another lawyer has violated the RPC in such a way that it raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer must report the violation to the appropriate professional authority.
Similarly, a lawyer who knows about a judge’s violation of the Code of Judicial Conduct that raises a substantial question as to the judge’s fitness as a judge must report the violation to the appropriate authority.
The exceptions to the reporting requirement are as follows:
* The information is protected by the lawyer’s duty of confidentiality to a client.
* The lawyer gained the information while serving as a member of an approved lawyer’s assistance program that helps lawyers and judges deal with substance abuse problems.
CA:
California does not require a lawyer to report misconduct by another lawyer or a judge.
Self-Reporting Requirement:
Instead, California lawyers are required to report themselves to the State Bar in a variety of situations, including when the lawyer is:
* Sued for malpractice three times in 12 months.
* Found civilly liable for fraud, breach of fiduciary duty, or the like.
* Sanctioned for more than $1,000 (except for discovery sanctions).
* Charged with a felony.
* Convicted of certain serious crimes.
* Disciplined in another jurisdiction.
Must Not Inhibit Disciplinary Complaints: Additionally, the California Business and Professions Code provides that a lawyer must not make or seek an agreement (either as a party or as a lawyer for a party) that would:
(1) prohibit a person from reporting a professional misconduct claim or the settlement thereof;
(2) require a person to withdraw or refrain from cooperating with such a claim; or
(3) provide that the record of any civil action for professional misconduct be sealed from review by the disciplinary agency.
