Pt. 1 - Regulation of Lawyers Flashcards
the ____ have the inherent power to regulate the legal profession; the ultimate power rests with the ______ ____ in the state, not with the legislature.
courts; highest court
Sarbanes-Oxley Act imposes a _______ reporting duty when a securities lawyer becomes aware of credible evidence that a client is _______ violating a fed. or state securities law.
mandatory; materially
A lawyer is subject to regulation by ___ state in which the lawyer is _______ to practice, regardless of where the lawyer actually practices law or where the lawyer’s conduct occurred. If the rules of the states in which the lawyer is admitted are in conflict, ____ of law rules apply.
each; admitted; choice of law
a roster of lawyers who are admitted to practice law?
bar
an applicant for admission to the bar must respond _____ and ______ to inquiries made on the application or otherwise by the admissions committee
truthfully & completely
an applicant for admission to the bar, or lawyer in connection w/ a bar admission application, must not _______ make a false statement of ______ fact.
knowingly; material
an applicant, or lawyer in connection with an application’s application for admission to the bar, must not: (i) fail to _______ a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or (ii) _______ fail to ______ to a lawful demand for info from an admissions authority. This rule does not, however, require disclosure of info otherwise protected by __________.
disclose; knowingly; respond; confidentiality
state has an interest in insuring that lawyers admitted to practice possess high moral standards and are mentally and emotionally _____.
stable
burden of coming forward & establishing good moral character is on the _________
applicant
applicant to bra owes a duty to _______ in reasonable investigations by the state bar and to make ______ relevant to his fitness to practice law.
cooperate; disclosures
a bar applicant has a right to ____ _______ in committee proceedings. This includes a right to know charges filed against him, to explain away derogatory info, and to confront critics.
due process
an applicant who is denied admission on basis of bad moral character is entitled to judicial review, usually by the state’s ______ _____.
highest court
all aspects of an applicant’s past conduct that reflect on his _____ & _____ are relevant to an evaluation of moral character. May consider many conduct or charges against the applicant–including charges of which the applicant was acquitted–and many litigation to which the applicant was a party.
honesty & integrity
mere ______ of crime is not sufficient to deny the admission of an applicant to practice law
conviction
to cause disqualification of can applicant to the bar, the crime in Q must involve _____ ______
moral turpitude (factors of the nature of the offense and motivation of the violator come into play in determining whether moral turpitude exists)
examples of moral turpitude crimes
crime involving intentional dishonesty for purpose of personal gain (i.e., forgery, bribery, theft, perjury, robbery, extortion, etc.) or crime involving violence (i.e., murder, rape, mayhem, etc.)
adolescent behavior & civil disobedience rules of not disqualifying someone from bar admission
adolescent behavior — like an arrest as teenager for fistfight; or, nonviolent civil disobedience
an applicant may gain admission to the legal profession despite past conduct involving moral turpitude IF he can demonstrate sufficient ________ of his character and a ______ fitness to practice law
rehabilitation; present
false statements or concealment of facts in response to an inquiry by t he admissions committee is itself evidence of sufficient lack of _____ _______ to deny admission–even if the underlying conduct does not involve moral turpitude
moral character
is an applicant’s membership in Communist party sufficient to deny him/her of bar admission?
no; not w/o a showing that the applicant engaged in or advocated actions to overthrow the gov’t by force/violence
two things a state cannot require for admission to its bar:
(1) cannot require a person be a US citizen b/c such a requirement would violate Equal Protection Clause.
(2) cannot require applicant be a resident of the state in which he is seeking admission to practice law as it would violate the Privileges & Immunities Clause
it is professional misconduct for a lawyer to: (i) violate or _____ to violate any of the Rules of Professional Conduct, (ii) ______ assist or induce another person to violate the Rules, or (iii) ______ the acts of _____ _______ to commit a violation
attempt; knowingly; use the acts of another person
a lawyer is subject to discipline for committing a ________ act that reflects adversely on his _____, __________, or ______ as a lawyer in other respects. it must involve some characteristic that is relevant to the _____ of ____.
criminal; honesty, trustworthiness, or fitness; practice of law
crimes that would not subject a lawyer to discipline
solicitation of prostitution, single offense of drunk driving, possession of marijuana charge
ANY conduct–i.e., doesn’t have to be a crime–involving _____, _____, _____, or ________ constitutes professional misconduct.
dishonesty, fraud, deceit, or misrepresentation (includes things like defrauding one’s own law firm by misusing expense accounts; cheating on bar exam; plagiarism, etc.)
a lawyer is subject to discipline for engaging in conduct that is _________ to the administration of justice.
prejudicial (most things that would arise under this rule–like falsifying evidence, delaying, etc.–are dealt with more specifically in rules re: to litigation so this is rarely used)
a lawyer must never state or _______ that he has the ability to improperly influence a gov’t agency OR official OR to achieve results by means that violate the law or legal ethics rules
imply
a lawyer is subject to discipline for _________ assisting a judge OR judicial officer in conduct that violates the Code of Judicial Conduct or other law
knowingly
a lawyer must not, in conduct related to the ______ of _____, engage in conduct that the lawyer knows or __________ should know is harassment or discrimination on the basis of sex, race, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status
practice of law; reasonably should know
the rule re: harassment or discrimination in law practice does not limit a lawyer’s ability to do what 3 things?
(1) accept, decline, or withdraw from a representation in accordance with the rules OR limit her practice to members of underserved populations in accordance w/ the rules, (2) provide legit advice or advocacy that is otherwise consistent w/ the rules; OR (3) promotes diversity or inclusion (efforts aimed at recruiting, hiring, retaining, or advancing diverse EEs)
does a trial judge’s finding that a lawyer exercised peremptory challenges on a discriminatory basis establish a violation of the discrimination rule?
no, not on its own
a lawyer who _____ that another lawyer has violated the Rules in such a way that it raises a ________ Q as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer MUST report the violation to the appropriate professional authority
KNOWS (actual knowledge requirement); substantial (i.e., material matter of clear and weighty importance)
may a lawyer report suspected misconduct?
yes, a lawyer MAY, just isn’t required to unless it is KNOWN
is failure to report when required grounds for discipline?
yes; except that the rule requiring disclosure does not apply to info protected by confidentiality rules (would be subject to discipline for violating confidentiality if he did report it)
what other setting is there no duty to disclose info?
info gained by a. lawyer or judge while serving as a member of an approved lawyers’ assistance program that helps lawyers and judges w/ substance abuse problems
professional discipline means what?
punishment imposed on. lawyer for breaking a rule of professional ethics
filing a complaint against a lawyer is considered ________ and so cannot be the basis of an action (like defamation) by the lawyer against the complainant
privileged
what happens when a complaint to a grievance committee is without merit?
dismissal of the complaint; the complainant has no right to appeal as the decision is final
if hearing on complaint, accused lawyer is entitled to procedural _____ ______
due process (includes right to counsel, proper notice, to be heard and introduce evidence, and to cross-examine adverse witnesses)
do the exclusionary rules of criminal law apply to disciplinary proceedings?
no (so, evidence obtained via an illegal search is admissible)
may a lawyer invoke Fifth amendment privilege and refuse to answer questions at disciplinary hearing?
yes; no disciplinary action can be taken against the lawyer if it is based solely on claim of 5th Amend. privilege
private or public reprimand or censure —
acknowledgement of misconduct that goes on the lawyer’s record w/ the disciplinary authorities
suspension of lawyer’s license —-
definite period of time, at the end of which the right to practice is automatically reinstated