PR IV. Duty to Public_profession Flashcards
IV. THE ATTORNEY’S DUTY TO THE PUBLIC & PROFESSION
A. The Duty to Avoid Unauthorized Practice of Law
B. The Duty to Avoid False or Misleading Advertisements
C. The Duty to Not Improperly Solicit Clients
A. The Duty to Avoid Unauthorized Practice of Law
- Includes the duty to avoid assisting another in the unauthorized practice of law.
- CA: has specific rules regarding the employment of disbarred lawyers.
B. The Duty to Avoid False or Misleading Advertisements
(COMMUNICATIONS ABOUT LEGAL SERVICES)
A. ADVERTISING AND RELATED COMMUNICATIONS:
L advertising is protected by the 1A (subject to narrowly tailored regulations by the government). Lawyers may advertise in any media.
B. Basic Rule—NO FALSE OR MISLEADING STATEMENTS:
L must not make a false or misleading statement about themselves or their services.
a. What’s a False or Misleading Statement?
“False or misleading” includes important MISREPRESENTATIONS and OMMISSIONS.
Even a truthful statement is misleading if it:
• Would lead a reasonable person to reach an unfounded conclusion,
• Reports the L’s achievements on behalf of clients and would lead a reasonable person to form an unjustified expectation of receiving the same results in a similar matter, or
• Contains an unsubstantiated comparison or claim of the L’s services or fees, presented with such specificity as to lead a reasonable person to conclude that the comparison or claim can be substantiated
Depending on the circumstances, the inclusion of an appropriate disclaimer or other qualifying language can prevent an advertise- ment from being misleading to the public.
CA: includes other specific examples of misleading communications:
• A communication that states or implies that the lawyer is able to provide legal services in a language other than English, unless:
(1) the lawyer can actually provide legal services in that language, or
(2) the communication also states, in the language of the communication, the employment title of the person in the firm who speaks that language
• A communication that states or implies “no fee without recovery,” unless the communication also expressly discloses whether or not the C will be liable for costs
California Statutory Restrictions on Advertising ( these advertisements would likely also be considered misleading under the ABA)
CA specifically prohibits advertisements that contain any of the following:
• A guarantee or warranty of the outcome of a case (to avoid a violation, L should always include a disclaimer that the advertisement is not a guarantee or warranty)
• Words or symbols that suggest quick cash or a quick settlement
• An impersonation of a L or C without disclosing that it is an impersonation
• A dramatization of an accident or other event without disclosing that it is a dramatization
• A contingent fee offer that does not warn that a client who loses a case must still pay litigation costs (if that is the arrangement)
ADS: Firm Names, Designations, and Letterheads
Like any other communication about a L or their services, a firm name, letterhead, or other designation (such as a website address) must not be false or misleading.
For example, a name or designation is misleading if it:
• Implies a connection with a government agency or with a public or charitable legal services organization (for example, Sacramento Legal Aid Clinic)
• States or implies that the lawyers practice in a partnership or other organization when that is not the case
• Includes the name of an L not associated with the firm or a predecessor firm (but including the names of deceased lawyers who were part of the firm is allowed)
ADS: Communication of Specialties
L may communicate the fact that they do or do not practice in particular fields of law, and may also communicate that their practice specializes in, is limited to, or is concentrated in a particular field of law, as long as such a statement is not false or misleading.
BUT, CANNOT Claim (state or imply) to be a CERTIFIED Specialist - UNLESS:
• L has in fact been certified as a specialist by an APPROVED organization; and
• The name of the certifying organization is clearly IDENTIFIED in the communication
ADS: Communications - Must Identify Lawyer or Firm
Every communication about a lawyer or a lawyer’s services must identify the name and contact information of at least one lawyer or law firm responsible for its content.
Including Advertisements.
C. The Duty to Not Improperly Solicit Clients
(SOLICITATION)
SOLICITIATION = TARGETED COMMUNICATION: a targeted communication INITIATED by L that is directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular matter, and that directly or indirectly offers to provide legal services in that matter.
A. Solicitation by Live Person-to-Person Contact Generally PROHIBITED:
•Subject to exceptions, L must not, by live person-to-person contact, solicit prof’ employment when a signficiant motive is PECUNIARY GAIN (monetary gain).
*** “Live person-to-person contact” means in-person, live telephone, or other real-time visual or auditory person-to-person communications (Skype/FaceTime) where the targeted person is subject to a direct personal encounter without time for reflection.
CA: same with respect to in-person and live telephone contact, but more broadly prohibits “real-time electronic contact.” text messages and chat room messages might be prohibited in California even if there is no real-time video or audio component.
BUT EXCEPTIONS - —Certain Targets Are Considered Less Vulnerable:
•Other Lawyers
•A person with whom the lawyer has a familial, close personal, or prior professional relationship (including current and former clients)
•A person who routinely uses for business purposes the type of legal services offered by the lawyer
CA: does not contain the exception for routine business users of legal services.
B. Solicitiation by Written, Recorded, or Electronic Communications Generally PERMITTED:
Generally, a lawyer is not prohibited from sending truthful, nondeceptive communications (for example, via mail, e-mail, or recorded telephone messages) to persons known to face a specific legal problem.
CA: targeted communications must include the word “Advertisement,” or words of similar import, on the outside envelope (if any) and at the beginning and end of any recorded or electronic communication. However, the labeling requirement is not necessary if: (1) the target is another lawyer, or a person with whom the lawyer has a close personal or prior professional relationship; or (2) it is apparent from the context that the communication is an advertisement.
C. When All Solicitation Is Prohibited
A lawyer is prohibited from soliciting professional employment, regardless of what method is used or who the target is, if:
(1) the target has made known to the lawyer that they do not want to be solicited by the lawyer; or
(2) the solicitation involves coercion, duress, or harassment.
D. Use of Agents to Solicit
L is prohibited from using an agent to something the lawyer is prohibited from doing. Thus, L must not use an agent (sometimes called a “runner” or “capper”) to contact prospec- tive clients in a manner that would violate the rules of professional conduct.
E. Prepaid or Group Legal Service Plans
L is permitted to participate in a prepaid or group legal service plan that uses personal contacts to enroll memberships for the plan, as long as the plan only contacts persons who are NOT known to need legal services in a particular matter covered by the plan (otherwise, this would be prohibited solicitation).
Furthermore, the lawyer must not participate in a plan that uses personal contacts if the lawyer owns or directs the organization that operates the plan.
PAYING FOR RECOMMENDATIONS
As a general rule, a lawyer must not give anything of value (such as money, tangible items, or services) for another person’s recommen- dation of the lawyer’s services.
EXCEPTIONS:
•TOKENS of APPRECIATION:
L permitted to give a nominal gift or gratuity as a token of appreciation to a person who recommended L or the lawyer’s firm, provided the gift or gratuity was not offered or given in consideration of an understanding that such a gift or gratuity would be forthcoming or that referrals would be made or encouraged in the future.
•RECIPROCAL REFERRAL ARRANGEMENTS, if Non-exclusive and C is INFORMED.
L is permitted to refer a C to another L or a nonlawyer professional as part of a reciprocal referral arrangement with that person. Any such arrangement must not be exclusive, and the client must be informed of the existence and nature of the agreement.
• PAying COSTS of Advertising, Legal service plan, etc.
L is allowed to pay the reasonable costs of advertising, and may pay the usual charges of a legal service plan, a not-for- profit lawyer referral service, or a qualified lawyer referral service. Additionally, the lawyer can pay to purchase a law practice, even though the seller is effectively “recommending” the lawyer to their clients.
UNAUTHORIZED PRACTICE OF LAW
RULE: CANNOT Engage or assist in unauthorized practice.
NOTE: (Regulatory details are Barely tested)
Must Not Engage or Assist in Unauthorized Practice
L is prohibited from:
• PRACTICING law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction (meaning, a lawyer generally can’t practice in a jurisdiction if they aren’t licensed, or if they are inactive, suspended, or disbarred)
• ASSISTING another person in the unauthorized practice of law
(HOWEVER, it is not unauthorized practice for a layperson to represent themselves, and a lawyer can help a layperson appear pro se)
While a lawyer may delegate tasks to nonlawyer employees, the lawyer must supervise the delegated work carefully and must be ultimately responsible for the results.
CA: Employment of Disbarred, Suspended, Resigned, or Voluntarily Inactive Lawyer
In addition to the prohibition on assisting with unauthorized practice (above), an active California lawyer must comply with various requirements upon engaging the services of a disbarred, suspended, resigned, or voluntarily inactive lawyer (“ineligible person”).
- ineligible person is allowed to engage in research, drafting, and clerical assistance.
- Written Notice to State Bar and Clients.
Practicing law examples: Appearing in judicial proceedings; engaging in settlement negotiations; providing legal advice; and drafting documents that affect substantial legal rights and obligations (such as contracts, wills, and trusts).
•beyond the capacity and knowledge of laypersons.
Multi-Jurisdictional Practice
• Can Practice ONLY where LICENSED, with limited EXCEPTIONS.
Generally, L 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 continuous presence in the other jurisdic- tion without becoming licensed in that jurisdiction
a. EXCEPTION - 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:
• The lawyer associates with an active local lawyer.
• The lawyer obtains “pro hac vice” admission for a particular litigation matter.
• The temporary practice reasonably relates to the lawyer’s home state practice and pro hac vice admission is not required for such practice.
Ls from foreign countries can engage in temporary practice under similar circumstances as above, or if their services are governed primarily by international or foreign law.
b. EXCEPTION - Permitted PERMANENT Practice by Out-of-State Lawyer
L 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 or other systematic and continuous presence in a different jurisdiction under the following circumstances:
• The lawyer is employed by their only client (for example, as in-house counsel).
• The lawyer is authorized by federal or local law to practice a restricted branch of law (for example, patent prosecution).
CA: places additional restrictions on out-of-state lawyers by practice area.
Bar Admissions and Disciplinary Matters
• TELL THE TRUTH, ANSWER BAR’S QUESTIONS WHEN THEY ASK (common sense here).
Bar applicants, and lawyers in connection with another person’s bar 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 duty of confidentiality to a client).
• Knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority (unless the duty of confidentiality to a client prevents them from responding).
CA:
• It also prohibits a bar applicant from making a statement with reckless disregard as to its truth or falsity.
• It does not include the provision regarding failure to respond.
PROFESSIONAL INDEPENDENCE
A. Relationships with Nonlawyers
The following are PROHIBITED:
• L 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 of the firm, (2) is a corporate officer or director of the firm, or (3) has the right to DIRECT OR CONTROL a lawyer’s pro- fessional 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.
B. Providing Law-Related Services
•MAY be subject to ethics rules when providing these services IN CONJUNCTION with LEGAL services.
* These are services that might reasonably be performed in conjunction with legal services. Even though law-related services are not legal services, the ABA Rules provide that a lawyer who provides law-related services is subject to the rules of professional conduct (meaning, the lawyer can be disciplined for lack of communication, violating confidentiality, and so on) with respect to these services in 2 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 con- trolled 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 ser- vices and that the protections of the lawyer-client relationship do not apply
L who provides these services should take extra care to provide them separately and in a way that puts clients on notice of the difference between the legal services and the law-related services. Otherwise, the lawyer risks being subject to regulation by the bar concerning these law-related services.
CA: California does not have a rule for law-related services.
C. Arrangements Restricting Lawyer’s Right to Practice
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 (commonly known as a “noncompete” agreement), 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 par- ty 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.
SUPERVISORS AND SUBORDINATES
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 profes- sional duty.
Lawyer’s Responsibility for Another’s Misconduct
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) miscon- duct, or knew about it and ratified it; or
• The lawyer was a partner or manager or had direct supervisory re- sponsibility 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 reason- able assurance that all members of the firm conform to the rules of professional conduct. 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.
SELF-REGULATING PROFESSION—REPORTING MISCONDUCT
A lawyer who knows that another lawyer has violated the rules of professional conduct 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 appro- priate authority.
Exceptions to Reporting Requirement
Disclosure is not required when:
• The information is protected by the lawyer’s duty of confidentiality to a client; or
• 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 an- other lawyer or a judge.
Self-Reporting Requirements
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 3 times in 12 months
• Found civilly liable for fraud, breach of fiduciary duty, or the like
• Sanctioned 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 pro- vides that a lawyer must not make or seek an agreement (either acting on their own behalf or on behalf of someone else) that would: (1) prohibit a person from reporting a 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 action or proceeding be sealed from review by the disci- plinary agency.
