Professional Responsibility Flashcards
Regulation
Responsibilities to the Profession
The Georgia Supreme Court has the inherent power to regulate the practice of law. The Georgia Rules of Professional Conduct (“RPC”) govern the conduct of Georgia lawyers.
Grounds for Discipline
Responsibilities to the Profession
A lawyer will be subject to discipline if they:
- Violate or attempt to violate the RPC, knowingly assist or induce another to do so, or use the acts of another to commit a violation (the rest of this outline covers the RPC)
- Engage in any professional conduct involving dishonesty, fraud, deceit, or misrepresentation (this is quite broad)
- State or imply an ability to improperly influence a government agency or official by illegal or unethical means, or otherwise achieve results by illegal or unethical means
- Are convicted of (1) any felony, or (2) any misdemeanor involving moral turpitude where the underlying conduct relates to the lawyer’s fitness to practice law (for example, misdemeanors that involve lying or stealing)
- Commit a criminal act that relates to the lawyer’s fitness to practice law or reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer, where the lawyer has admitted the commission of such act in the course of legal proceedings
- Fail to pay any final judgment or rule absolute rendered against the lawyer for money they collected as a lawyer within 10 days after the time appointed in the order or judgment
- Knowingly assist a judge or judicial officer in conduct that violates the rules of judicial conduct
Procedure and Types of Discipline
Responsibilities to the Profession
Complaints about a lawyer’s conduct are investigated by the State Bar through a panel of its disciplinary board. Upon finding probable cause of a violation, the panel may file a formal complaint with the Georgia Supreme Court. Depending on the violation, a lawyer may be subject to:
- formal admonition;
- confidential reprimand;
- state disciplinary board reprimand;
- public reprimand;
- suspension; or
- disbarment.
Some violations do not carry a disciplinary penalty.
Multi-State Practice:
Choice of Law
Responsibilities to the Profession
A lawyer is subject to regulation in each state in which they offer legal services or are admitted to practice (meaning, a lawyer can be disciplined by multiple states for the same conduct).
The choice of law will depend on the circumstances. If the lawyer’s conduct concerns a matter pending before a court, the rules of the state in which the court sits will generally apply.
Otherwise, the disciplinary authority will apply the rules of the jurisdiction in which the predominant effect of the conduct took place. (However, the lawyer will not be subject to discipline if their conduct conformed to the rules of a state in which the lawyer reasonably believed the predominant effect would occur.)
Malpractice vs. Discipline
Responsibilities to the Profession
A malpractice action is a civil case brought by a plaintiff for money damages; a disciplinary action is administrative and brought by the State Bar to protect the public.
A malpractice plaintiff must prove a breach of a duty of due care, and will recover only if they suffered damages as a result of the breach; in contrast, a lawyer can be disciplined for violating an ethical rule even if the client isn’t harmed.
Additionally, keep in mind that a violation of an ethical rule, standing alone, cannot serve as the basis of a malpractice claim.
Both disciplinary and malpractice proceedings generally must be brought within 4 years of the conduct at issue.
Reporting Misconduct by Other Lawyers
Responsibilities to the Profession
A lawyer having knowledge that another lawyer has committed a violation of the RPC that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects should (but is not required to) inform the appropriate professional authority. A similar rule applies when a lawyer has knowledge that a judge has committed a violation of applicable rules of judicial conduct.
Self-Reporting Requirements
Responsibilities to the Profession
Members of the State Bar of Georgia must, within 60 days, inform the Bar of the following events:
- Being admitted to the practice of law in another jurisdiction, and the dates of admission
- Being convicted of (1) any felony, or (2) any misdemeanor involving moral turpitude where the underlying conduct relates to the lawyer’s fitness to practice law (the same types of convictions for which a lawyer is subject to discipline, as discussed above)
- Being disciplined by another jurisdiction for conduct that would have violated the RPC (in which case the Bar may impose reciprocal discipline)
Agreements Concerning Disciplinary Complaints
Responsibilities to the Profession
A lawyer must not enter into an agreement containing a condition that either
1. prohibits or restricts a person from filing a disciplinary complaint, or
2. requires a person to request dismissal of a pending disciplinary complaint.
What is the Practice of Law?
Responsibilities to the Profession - Unauthorized Practice of Law
By statute, “practice of law” includes:
- Representing litigants and preparing legal pleadings
- Conveyancing
- Preparing legal instruments that secure legal rights (for example, a will or a contract)
- Giving any legal advice
- Taking any legal action on behalf of another
Must Not Engage of Assist in Unauthorized Practice
Responsibilities to the Profession - Unauthorized Practice of Law
A lawyer is prohibited from:
1. engaging in the unauthorized practice of law; or
2. 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 an individual layperson (not a corporation) 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.
Mutli-Jurisidctional Practice
Responsibilities to the Profession - Unauthorized Practice of Law
A lawyer who is not licensed in Georgia must not: (1) open a law office in Georgia; (2) represent that she is admitted to practice in Georgia; or (3) establish a “systematic and continuous presence” in Georgia.
Permitted Temporary Practice by Out-of-State Lawyer
A lawyer who is admitted in another jurisdiction, and who is not disbarred or suspended in any jurisdiction, can practice in Georgia on a temporary basis in any of the following situations:
- The lawyer associates with a local lawyer who actively participates in the matter.
- 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.
Permitted Permanent Practice by Out-of-State Lawyer
A lawyer who is admitted in another 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 Georgia under the following circumstances:
- The lawyer is employed by their only client (for example, as inhouse counsel)—but keep in mind that litigating a matter would require pro hac vice admission.
- The lawyer is authorized by federal or local law to practice a restricted branch of law (for example, patent prosecution).
Foreign Lawyers
A lawyer who is only licensed to practice law in a foreign country may practice law in Georgia under similar circumstances as those described above. If a foreign lawyer practices in the United States on a permanent basis (for example, as in-house counsel for her employer), they must remain in compliance with all United States immigration laws while doing so.
Agreements Restricting Right to Practice
Responsibilities to the Profession
A lawyer must not participate in offering or making the following arrangements that restrict a lawyer’s right to practice law:
- Any partnership or employment agreement restricting a 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 between private parties that restricts the right of a 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 on practice in an agreement for the sale of a law practice, which is discussed next (for example, the seller and buyer might agree that the seller will stop practicing law in the local area for a certain amount of time).
Sale of Law Practice
Responsibilities to the Profession
The sale of a law practice is permitted subject to the following requirements:
- The entire practice must be sold to a single lawyer or law firm.
- Written notice must be given to the seller’s clients regarding the sale, the clients’ right to retain other counsel and to take possession of their files, and the fact that consent to the transfer of the clients’ files will be presumed if a client takes no action within 90 days of receipt of the notice. If notice cannot be given to a client, a court order is required to authorize the transfer of the representation of the client to the purchaser.
- Clients’ fees must not be increased solely because of the sale. The purchaser generally must honor existing fee agreements made by the seller. However, the purchaser can advise the client that they won’t take on the client’s matter unless the client consents to pay the higher fees that the purchaser usually charges for substantially similar services.
Relationalships with Nonlawyers
Responsibilities to the Profession - Professional Independence
The following rules are meant to limit nonlawyers’ involvement in the practice of law and ensure that lawyers maintain their professional independence:
- 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 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 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.
Alternative Business Structures
Some other jurisdictions allow for “alternative business structures,” which are law firms that allow nonlawyers to manage or have ownership interests in the firm. Georgia lawyers cannot create or participate in alternative business structures in Georgia. However, a Georgia lawyer is allowed to work on client matters with attorneys who practice in alternative business structures located outside of Georgia and can share legal fees with those attorneys if otherwise permitted by the RPC (see 3.5.5.b., for a discussion of when lawyers may divide legal fees with outside attorneys).
Providing Law-Related Services
Responsibilities to the Profession - Professional Independence
Law-related services are services that might reasonably be performed in conjunction with legal services. Examples include 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 law-related services is subject to the RPC with respect to these services (meaning, the lawyer can be disciplined for lack of communication, violating confidentiality, and so on) 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 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 (such as the attorney-client privilege) do not apply
The takeaway here is that a lawyer 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.
Duty to Cooperate with Character Investigations
Responsibilities to the Profession
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)
Note that a bar applicant who violates this rule will be subject to discipline after they become admitted.
Firm Names
Responsibilities to the Prospective Client - Advertising
A lawyer must not use a firm name, letterhead, or other professional designation that is false or misleading.
Specific rules include:
- While the names of deceased or retired partners can be included in the firm name, it would be misleading to include the name of a disbarred lawyer.
- Lawyers must not state or imply that they practice in a partnership or other organization when that is not the case (for example, if lawyers A and B merely share office space and aren’t partners, they shouldn’t have an office sign that reads “A&B Law”).
- The name of a lawyer holding a public office must not be used in the name of a law firm or in communications on its behalf during any substantial period in which the lawyer is not actively and regularly practicing with the firm.
- A multistate firm may use the same firm name or other professional designation in each jurisdiction. However, when identifying lawyers in a particular office of the firm, the firm must list the jurisdictional limitations of those lawyers not licensed to practice in the jurisdiction where the office is located.
No False or Misleading Statements
Responsibilities to the Prospective Client - Advertising
A lawyer can advertise in any type of media, but such advertising generally must not involve in-person solicitation, and must not contain any false or misleading statements. A communication is false or misleading if it:
- Contains a material misrepresentation of fact or law, or omits an important fact
- Is likely to create an unjustified expectation about results the lawyer can achieve
- States or implies that the lawyer can achieve results by means that violate the RPC or other law (for example, where the communication focuses on the lawyer’s clout or connections)
- Compares the lawyer’s services with other lawyers’ services, unless the comparison can be factually substantiated
- Fails to include the name of at least one lawyer responsible for its content
Advertising Contingent Fees
Contingent fees are fees that are based on the outcome of the matter (usually, the lawyer collects a percentage of the client’s recovery).
All contingent fee agreements must be in writing and are subject to various requirements. When it comes to advertising, any communication concerning a lawyer’s services that mentions a contingent fee in any form is misleading unless it conspicuously presents the following disclaimer: “Contingent attorneys’ fees refers only to those fees charged by attorneys for their legal services. Such fees are not permitted in all types of cases. Court costs and other additional expenses of legal action usually must be paid by the client.”
Required Disclosures
Responsibilities to the Prospective Client - Advertising
The following requirements apply to any advertisement for legal services directed to potential clients in Georgia, or intended to solicit employment for delivery of any legal services in Georgia.
All required disclosures must be prominent.
- Every advertisement must include the name, physical location, and telephone number of each lawyer or law firm who paid for the advertisement and who takes full personal responsibility for the advertisement.
- If the lawyer or law firm will refer the majority of callers to other attorneys, the advertisement must disclose this fact.
- If an advertisement includes (1) a portrayal of a lawyer by a non-lawyer, (2) a portrayal of a client by a nonclient, (3) a nonlawyer spokesperson, or (4) any paid testimonial or endorsement, it must disclose these facts.
- A lawyer or law firm advertising any fixed fee for specified legal services must, at the time of fee publication, have available to the public a written statement clearly describing the scope of each advertised service, and the statement must be available to the client at the time of retainer for any such service.
- An advertisement that includes any representation that resembles a legal document must include a disclosure that the document is an advertisement rather than a legal document.
Recordkeeping Requirement
Responsibilities to the Prospective Client - Advertising
A copy or recording of an advertisement or communication must be kept for 2 years after its last dissemination along with a record of when and where it was used.
Prohibited Solicitation
Responsibilities to the Prospective Client - Solicitation
A lawyer must not solicit professional employment as a private practitioner (either for themselves or for their partner or associate) through direct personal contact or live telephone contact with a nonlawyer who has not sought the lawyer’s advice.
Targeted Mail
Responsibilities to the Prospective Client - Solicitation
Targeted mail is generally permitted, subject to the following limitations and conditions.
When Prohibited
A lawyer must not communicate with a prospective client to obtain employment in any of the following circumstances:
- The communication concerns an action for personal injury or wrongful death, or otherwise relates to an accident or disaster involving the person to whom the communication is addressed (or a relative of such person), unless the accident or disaster occurred more than 30 days prior to the mailing of the communication (additionally, under federal law, plane crashes require a 45-day waiting period)
- It has been made known to the lawyer that the person does not want to receive communications from the lawyer
- The communication involves coercion, duress, fraud, overreaching, harassment, intimidation, or undue influence
- The lawyer knows or should know that the physical, emotional, or mental state of the person would prevent them from exercising reasonable judgment in employing the lawyer
Labeling Requirement
Written communications to a prospective client for the purpose of obtaining employment generally must be marked “Advertisement” on the envelope and the top of each page. However, this labeling requirement does not apply when the target is a friend, relative, or former client.
Must Not Accept Employment in Violation of Rules
Responsibilities to the Prospective Client - Solicitation
If a lawyer violates these solicitation rules and gives unsolicited, in-person advice, they must not accept employment resulting from such advice.
Payments for Recommending the Laywer’s Services
Responsibilities to the Prospective Client - Solicitation
A lawyer must not compensate or give anything of value to a person or organization for recommending or securing the lawyer’s employment of a client, with the following exceptions:
- A lawyer is generally permitted to enter into a reciprocal referral arrangement (whereby the lawyer refers clients to another person in exchange for that person referring clients to the lawyer), so long as such agreements are not exclusive and the client is informed.
- A lawyer may pay the usual and reasonable fees or dues charged by a lawyer referral service if the service acts in accordance with the RPC and makes disclosures to the client regarding its arrangement with the participating lawyers.
- A lawyer may pay the usual and reasonable fees or dues charged by a qualified bar-operated nonprofit lawyer referral service, including a fee that is calculated as a percentage of the legal fees earned by the lawyer to whom the service has referred the matter, provided certain requirements are met (the client must not be charged any more than if the client had not used the service; the lawyer must maintain malpractice insurance, etc.).
- A lawyer may pay the usual and reasonable fees charged by a qualified legal services plan or insurer to promote the lawyer’s services if the communications of the plan are not false or misleading.
- A lawyer is permitted to pay the reasonable costs of permitted advertising.