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
disbarment —-
permanent revocation of the lawyer’s license to practice; disbarred lawyer may apply for readmission upon proof of rehabilitation, however
how does the committee determine a sanction to impose?
generally depends on severity of misconduct and presence or absence of mitigating or aggravating circumstances
other types of sanctions available to lawyers who have been disciplined
probation, restitution, costs of disciplinary proceedings, and limitations on lawyer’s practice
if conduct in Q occurred in connection w/ a proceeding pending before a tribunal, the ethics rules of the _______ in which the tribunal sits will be applied, unless the tribunal’s rules provide otherwise
jurisdiction
for any other conduct (i.e., misconduct that does not occur in connection w/ a proceeding pending before a tribunal), rules of the jurisdiction in which the conduct _____ will apply, but if the _____ effect of the conduct is in another jurisdiction, that jurisdiction’s rules will apply.
occurred; predominant
lawyer will NOT be subject to discipline if her conduct is proper in the jurisdiction in which she _______ believes the predominant effect of her conduct will occur
reasonably (this is called the “safe harbor”)
with respect to conflicts of interest only, a lawyer and client may enter into an _____ written agreement specifying the predominant effect jurisdiction (i.e., which jurisdiction’s conflicts rules will apply to the matter)
advance
a suspension or disbarment in one jurisdiction does _____ automatically affect a lawyer’s ability to practice in another jurisdiction
NOT
most states recognize the determinations of lawyer misconduct by sister states but do not agree on reasons why; preferred view is that sister states accept disciplinary action by one state as _____ proof of the misconduct, but not of the sanctions imposed (i.e., so they can impose their own sanctions)
conclusive
each fed. court in which a lawyer is admitted to practice must make an independent evaluation of the lawyer’s conduct; the fact that the lawyer has been disciplined by a state, however, is _____ evidence in a fed. proceeding and may in itself be sufficient to convince a fed. court to impose a similar sanction
competent
lawyer is subject to discipline for practicing in a jurisdiction where she is ___ _____ to practice, and a lawyer is subject to discipline for _____ another person in the unlicensed practice law.
not admitted; assisting
what can a lawyer not do in a state in which she is not admitted?
(except as allowed by the jurisdiction’s laws or ethics rules), the lawyer must not: (1) rep that she is admitted to practice there, or (2) est. an office or other systematic or continuous presence for the practice of law in that jurisdiction
general permissible types of temporary multi-jurisdictional practice:
(1) association with local lawyer, (2) special permission to practice in local tribunal, (3) mediation or arbitration arising out of practice in home state, (4) other temp practice arising out of practice in home state, (5) temp practice by foreign lawyers
association w/ local lawyer –> a lawyer may practice on a TEMPORARY basis in a state in which she is not admitted IF she associates a local lawyer who ____ ______ in the matter
actively participates
special permission to practice in local tribunal —> out-of-state lawyer may request special permission from a local court, administration agency, or other tribunal to handle a matter in that tribunal; in ct., such permission is called admission ___ ___ ___, which means admission for purposes of this matter only.
pro hac vice
an out-of-state lawyer who reasonably expects to be admitted pro has vice may engage in what?
preliminary activities in the state, such as meeting w/ clients, reviewing documents, and interviewing witnesses
a lawyer may mediate, arbitrate, or engage in another form of alternative dispute resolution in a state in which she is not admitted to practice IF her services arise out of, or are ______ related to, her practice in the state in which she is admitted
reasonably
catch-all category permits lawyer to temporarily practice out of state IF the lawyer’s out-of-state practice is _______ related the lawyer’s home state practice
reasonably
temporary practice by foreign lawyers general rule –> lawyer who is _____ and in ____ ____ in a foreign jurisdiction may engage in temporary practice in the US under circumstances similar to out-of-state attorneys’
licensed and in good standing
foreign lawyer may provide legal services temporary in the US if the services are governed primarily by _____ law or the law of a ____ jurisdiction; foreign lawyers who seek pro has vice admission are subjected to greater ____ than US attorneys; even if lawyer is admitted, judge has discretion to limit foreign lawyer’s ________ in the matter
international law or the law of a foreign jurisdiction; scrutiny; participation
two general permissible types of permanent multi-jurisdictional practice
(1) lawyers employed by their only client (like in-house corp. lawyers or gov’t lawyers), (2) legal services authorized by fed. or local law
lawyers employed by their only client as salaried EE (like in-house corp. lawyer or gov’t lawyer) rule —
may set up permanent office to render legal services to the ER in a state in which they are NOT admitted to practice, but if they want to LITIGATE a matter in that state, they must seek admission pro hac vice
foreign lawyer practicing under the rule may not ___ ____ her client on the law of a US jurisdiction; she must consult w/ a lawyer who is _____ by the relevant juris. and base any advice to her client on advice she obtains from the local lawyer
directly advise; licensed
fed. or local law, in rare instances, authorizes a lawyer to practice a ______ branch of law in a state in which he is not otherwise admitted to practice
restricted
lawyer who is admitted to practice in only one jurisdiction but practices in another on temp. or permanent basis, is subject to the disciplinary rules of _____ jurisdictions
both
an in-house or gov’t lawyer who practices under the relevant rules in a state in which he/she is not admitted ___ be subject to the second jurisdiction’s client security assessments and continuing legal education requirements
may
a person not admitted to practice as a lawyer MUST not engage in the ______ practice of law, and lawyer MUST not _____ such person to do so
unauthorized; assist
considerations in determining whether the practice of law is involved:
(1) whether the activity involves legal knowledge and skill beyond that which the average layperson possesses; (2) whether the activities constitutes advice or services concerning binding legal rights or remedies; and (3) whether the activity is one traditionally performed by lawyers
examples of activities constituting law practice —-
appearing in judicial proceedings, engaging in settlement negotiations, drafting documents that a affect substantial legal rights or obligations (i.e., contracts, wills, trusts, etc.), estate planning, etc.
examples of activities that do NOT constitute law practice —-
appear before an agency to represent clients, act as scriveners (filing in blanks on standard forms of legal documents), publish books or pamphlets offering general advice like DIY books and kits
giving advice on tax ____ would probably constitute unauthorized practice law, but an accountant or other layperson may prepare tax returns and answer Qs incidental to the preparation of the returns
law
non lawyer who engages in unauthorized practice of law is subject to several sanctions, including ____, ____, and criminal _____.
injunction, contempt, and condition; a lawyer who assists in such an endeavor is subject to professional discipline
lawyers may delegate tasks to a paralegal, law clerk, student intern, or other such person so long as the lawyer _______ the delegated work carefully and takes ____ _____ for the results of the work
supervises; ultimate responsibility
can a paralegal sign letter to clients, adversaries, opposing counsel, or tribunals
no; supervising atty. must approve and sign those
lawyer may ____ and ____ nonlawyers whose employment requires a knowledge of the law—i.e., social workers, accountants, claims adjusters, etc. BUT cannot assist lawyer whose license has been ______ or _______ in practicing law
advise and instruct; suspended or revoked (can hire suspended or disbarred lawyer to do work a layperson is permitted to do, but that disbarred or suspended lawyer must not be permitted to do any work that constitutes the practice of law)
a lawyer may ___ persons who wish to appear on their own behalf in aa legal matter (pro se)
advise
partners OR ______ lawyers of a law firm (and ______ lawyers in a gov’t agency, business, or other group of lawyers) MUST make _______ efforts to assure that the other lawyers adhere to the rules of professional conduct
managing; supervisory; reasonable
lawyer who directly ______ the work of another lawyer MUST make reasonable efforts to assure the the other lawyer adheres to the rules of professional conduct
supervises
a lawyers is subject to discipline for a disciplinary violation committed by a second lawyer IF: (1) the first lawyer _______ the second lawyer’s misconduct OR _____ about it and _____ it; OR (2) first lawyer is a partner or manager or has direct supervisory responsibility over the second lawyer AND she knows about the misconduct at the time when its consequences can be avoided or mitigated and fails to take reasonable ______ action
ordered; knew about it and ratified it; remedial
lawyers who work with such nonlawyer employees like secretaries/investigators/paralegals/clerks/etc. ____ instruct them concerning the ethics of the profession and should be ______ _____ for their work
MUST; ultimately responsible
parents and managers in law firm (and supervisory lawyers in gov’t agency, biz, or other group of lawyers) ____ make reasonable efforts to assure that the conduct of non lawyers is compatible with the obligations the profession
must
lawyer who directly _____ the work of a nonlawyer EE must make reasonable efforts to assure that the conduct of the nonlawyer is compatible with the obligations to he profession
supervises
lawyer is subject to discipline in two situations when nonlawyer does something that, if done by the lawyer, would violate a disciplinary rule: (1) lawyer ____ the conduct OR ____ about it and ratified it; or (2) lawyer is a partner or manager or direct supervisor over nonlawyer, and the lawyer knows about the misconduct at a time when its consequences can be avoided or mitigated and fails to take reasonable _____ action
ordered; knew; remedial
orders from a supervisory lawyer is no _____ for subordinate lawyer’s clearly unethical conduct—- must follow ethic rules even when acting under directors of another person; the fact that a subordinate lawyer was acting on directions from supervisor may be relevant in determining whether the subordinate had the _______ that is required for some ethics violations
excuse; knowledge
a subordinate lawyer does NOT violate the rules of professional conduct by acting in accordance with a supervisor’s reasonable resolution of an _______ Q of professional duty
arguable (i.e., when debatable ethics Q arises, someone must decide on course of action and that responsibility must rest w/ the supervisory lawyer; if that judgment turns out to be wrong, subordinate lawyer shouldn’t be disciplined)
subject to exceptions, lawyer must not ____ legal fee with a nonlawyer
share
exceptions to nonlawyer sharing fee prohibition —
(1) salaries of nonlawyer EEs of a firm are paid with $$$ earned as legal fees but this does not count as “sharing,” (2) firm can employ temp lawyers through a placement agency, (3) death benefits, (4) compensation and retirement plans for nonlawyer EEs, (5) sale of law practice, and (6) sharing court-awarded fee w/ nonprofit org.
death benefits fee sharing exception —- lawyers in a firm may agree that, when one of them dies, the other swill pay a death benefit over a ______ period of time to the dead lawyer’s estate or to designated persons
reasonable
compensation and retirement plans for nonlawyer EEs fee sharing exception —- nonlawyer EEs of a firm may be concluded in a compensation or retirement plan even though its based on a ____-____ arrangement
profit-sharing
sale of law practice fee sharing exception —- one who buys practice of a dead, disabled, or disappeared lawyer may pay the purchase price to the ____ or ____ of the lawyer
estate; representatives
sharing court-awarded fee w/ nonprofit fee sharing exception —- when ct. awards attorneys’ fees to winning lawyer in a case, the lawyer may share the fee with a nonprofit org. that ___ or ____ him as counsel
hired or recommended
lawyer must not form a partnership with a nonlawyer if ____ part of the partnership activities will constitute the practice of law
any (to be distinguishes from ancillary services provided by a separate entity)
lawyer must not practice in an incorporated law firm or association authorized to practice law for profit IF (three things):
(1) non-lawyer owns any interest in the firm or association (but when a lawyer dies, dead lawyer’s estate may hold an interest during estate’s administration); (2) non-lawyer is a corporate director or officer or the equivalent thereof; or (3) non-lawyer has the right to direct or control the professional judgment of a lawyer
lawyer must not allow a person who recommends, employs, or pays her for serving a client to direct or regulate the lawyer’s _____ ______
professional judgment
lawyer must neither make nor ____ a partnership or employment or similar agreement that restricts a lawyer’s right to practice after ____ of the relationship, except for an agreement concerning retirement benefits
offer; termination (i.e., you, the EE, cannot agree to restrictive covenant in employment agreement or you’ll be subject to discipline; the lawyer offering you the employment agreement will also be subject to discipline)
a lawyer must neither make nor offer an agreement in which a restriction on the lawyer’s right to practice is part of the ______ of a client controversy
settlement
requirements for sale of law practice —- (1) seller must cease to engage in the _____ practice of law, or in the sold field of practice, in the area where the practice has been conducted; (2) the entire practice, or the entire field of practice, must be sold to one or more _____ or firms; and (3) ______ notice must be given to seller’s clients regarding the sale, clients’ right to retain other counsel or take possession of their files, and the fact that consent to transfer of the clients’ files will be presumed if client takes no action w/in 90 days of receipt of notice
private; lawyers; written notice
seller of law practice must exercise _____ in identifying a purchaser qualified to assume the practice
competence
if notice cannot be given to a client, a court _____ his required to authorize transfer fo the rep of that client to the purchaser
order
after sale of law practice, lawyer may still be employed as a lawyer on the staff of a ____ agency or legal services entity that provides legal services to the poor, or as __-____ counsel to a biz
public; in-house
is a lawyer’s return to private practice of law after selling law practice a violation of the rules if it’s due to an unanticipated change in circumstances?
not necessarily
the purchaser of a law practice must undertake ____ client matters in the practice and not just those that generate substantial fees (subject, of course, to client consent and conflict of interest rules); client fees must not be ____ b/c of the sale, instead the purchaser must honor _____ fee agreements made by seller
all; increased; existing
law-related or ancillary services — what are they?
services that might reasonably be performed in conjunction with (and are related to) the provision of legal services and that are not prohibited as unauthorized practice of law when provided by a non-lawyer
examples of law-related or ancillary services —-
financial planning, accounting, lobbying, trust services, real estate counseling, providing title insurance, and preparing tax returns
even though law-related services are not legal services, a lawyer who provides such services is subject to the rules of professional conduct in two situations:
(1) when nonlegal services and legal services are provided together; (2) nonlegal services provided by entity that is controlled by the lawyer (this is when a lawyer provides non-legal services through an entity that is not her law office but that a she controls either alone or with other lawyers; must take reasonable steps to assure people who receive said services understand they aren’t legal services and that the rules of professional conduct do not cover those services; if these steps aren’t taken, then the lawyer is subject to those rules with respect to nonlegal services)
when client-lawyer relationship exists b/t lawyer and individual receiving law-related services, lawyer must comply with rules relating to what?
entering into business transactions w/ client
