Regulation

Question 1

Who has the ultimate power to regulate the legal profession?

Answer 1

State’s highest court

Question 2

Where is a lawyer subject to regulation?

Answer 2

Each state in which the lawyer is admitted to practice

Question 3

Bar App: False statements

Answer 3

Cannot knowingly make a false statement of material fact on the bar admission application

Question 4

Bar App: Failure to Disclose

Answer 4

An applicant (or a lawyer in connection with an applicant’s application for admission to the bar) must not: (1) fail to disclose a fact necessary to correct a known misapprehension or (2) knowingly fail to respond to a subpoena from an admissions authority.

Question 5

Bar App: Does an applicant have to disclose confidential information?

Answer 5

No

Question 6

Who has the burden of proving good moral character?

Answer 6

The applicant

Question 7

Bar App: Procedural Rights

Answer 7

A bar applicant has a right to due process in committee proceedings. Thus, he has the right to know the charges filed against him, to explain away derogatory information, and to confront critics. An applicant who is denied admission on the basis of bad moral character is entitled to judicial review, usually by the state’s highest court.

Question 8

Bar App: Criminal Conduct

Answer 8

Disqualification can occur if the crime in question involves (1) moral turpitude, such as a crime involving intentional dishonesty for the purpose of personal gain (e.g., forgery, bribery, theft, perjury, robbery, extortion) or (2) violence (e.g., murder, rape, mayhem).

The nature of the offense and the motivation of the violator are also factors in determining whether moral turpitude exists.

Question 9

How can you gain admission despite past offenses?

Answer 9

Demonstrate sufficient rehabilitation of his character and a present fitness to practice law

Question 10

What happens if you conceal facts from the admissions inquiry committee?

Answer 10

It is considered evidence of a sufficient lack of moral character to deny admission—even if the underlying conduct does not involve moral turpitude.

Question 11

How does political affiliation factor into admission decisions?

Answer 11

Must take the oath of office because there is a rational connection between this requirement and the practice of law.

Cannot deny admission because of political affiliation, unless the applicant engaged in or advocated actions to overthrow the government by force or violence

Question 12

Do you have to be a citizen to practice law?

Answer 12

No

Question 13

Do you have to be a resident of the state you are barred in?

Answer 13

No

Question 14

What constitutes a violation of the Model Rules?

Answer 14

It is professional misconduct for a lawyer to (1) violate or attempt to violate model rules, (2) knowingly assist or induce another person, or (3) use the acts of another person

Question 15

A lawyer is subject to discipline for what kind of criminal act?

Answer 15

any that reflects adversely on his honesty, trustworthiness, or fitness as a lawyer in other respects

Question 16

What constitutes professional misconduct?

Answer 16

• relevant to the practice of law. E.g., crimes involving dishonesty, breach of trust, substantial interference with the administration of justice,
• most crimes involving violence reflect on the lawyer’s fitness to practice law,
• conduct involving dishonesty, fraud, deceit, or misrepresentation. E.g., cheating on the bar, plagiarism of a thesis, and defrauding one’s own law firm by misusing expense accounts

No discipline: solicitation of prostitution, the single offense of drunk driving, possession of a marijuana cigarette)

Question 17

Assisting a judge in violation of judicial code

Answer 17

A lawyer is subject to discipline for knowingly assisting a judge or judicial officer in conduct that violates the Code of Judicial Conduct or other law

Question 18

Harassment or discrimination in law practice

Answer 18

A lawyer must not, in conduct related to the practice of law (e.g., representing clients, interacting with witnesses, operating and managing a law practice), engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination.

Note: A trial judge’s finding that a lawyer exercised peremptory challenges on a discriminatory basis does not, on its own, establish a violation of this rule

Question 19

Duty to report professional misconduct

Answer 19

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. (Even if disclosed in personal conversation like on the golf course)

Similarly, a lawyer who knows that a judge has violated the Code of Judicial Conduct in a way that raises a substantial question as to the judge’s fitness for office must report the violation to the appropriate authority.

Question 20

Knowledge

Answer 20

This means actual knowledge, but it may be inferred from the circumstances.

More than mere suspicion–Thus, while a lawyer may report suspected misconduct, she must report known misconduct.

Question 21

Substantial

Answer 21

This means “a material matter of clear and weighty importance.”

Question 22

What happens if you fail to report misconduct?

Answer 22

Discipline

Question 23

What are the exceptions to the duty to report misconduct?

Answer 23

1. Attorney-client relationship
2. Lawyer’s assistance program (e.g., AA)

Question 24

Professional discipline

Answer 24

This means punishment imposed on a lawyer for breaking a rule of professional ethics.

Question 25

What is the disciplinary process?

Answer 25

1. A complaint is filed with the state disciplinary authority. Filing a complaint is considered privileged so it cannot be used against the complainant in a future proceeding (e.g., defamation).
2. If the complaint appears to have merit, the lawyer will be asked to respond to the charge. 3. After further investigation, the committee will either dismiss the complaint or schedule a hearing. The complainant my not appeal.
3. The authority holds a hearing and must afford due process to the accused which includes the right to counsel, to proper notice, to be heard and introduce evidence, and to cross-examine adverse witnesses. Must be limited to the charges made in the complaint.
4. If misconduct is found, sanctions are imposed, such as going on your professional record, suspension of a license, or complete disbarment.

Question 26

Aspects of a disciplinary hearing

Answer 26

1. The accused is entitled to procedural due process (e.g., the right to counsel, to proper notice, to be heard and introduce evidence, and to cross-examine adverse witnesses.)
2. Evidence obtained through an illegal search is admissible.
3. A lawyer can evoke 5th Amendment and cannot be disciplined based on that alone.
4. Burden of proof - complainant: More than Preponderance of the evidence less than reasonable doubt
5. Most states also require that only evidence admissible under the rules of evidence be considered; thus, inadmissible hearsay would be excluded.
6. Right to appeal: Lawyer is entitled to a review of the decision by the state’s highest court. The burden is then on the lawyer to show that the committee’s action or recommendation is not supported by the record or is otherwise unlawful.

Question 27

Choice of law in disciplinary hearings

Answer 27

If occurred in connection with a proceeding that is pending before a tribunal, the ethics rules of the jurisdiction in which the tribunal sits will be applied, unless the tribunal’s rules provide otherwise.

For any other conduct, the rules of the jurisdiction in which the conduct occurred will apply

But if the predominant effect of the conduct is in some other jurisdiction, that jurisdiction’s rules will apply.

A lawyer will not be subject to discipline if her conduct is proper in the jurisdiction in which she reasonably believes the predominant effect of her conduct will occur.

A lawyer and client may enter into an advance written agreement specifying the predominant effect jurisdiction, i.e., which jurisdiction’s conflicts rules will apply to the matter.

Question 28

Does professional discipline imposed by one state necessarily bind another?

Answer 28

No but most states recognize the determinations of lawyer misconduct by sister states.

Each federal court in which a lawyer is admitted to practice must make an independent evaluation of the lawyer’s conduct.

Question 29

Disability proceedings

Answer 29

Suspension from practice until she can show that rehabilitation has occurred. The procedures followed are generally the same as those of disciplinary proceedings, but provisions may be made for psychiatric evaluation and diversion into a rehabilitation program.

Question 30

Regulation: Bar applicant Tom hires his old law professor Aisha in connection with his bar application. Tom tells Aisha that there were charges of plagiarism filed against him during college, but these charges were eventually dropped when the accusing professor died. Aisha does not believe Tom would have committed plagiarism. The state bar contacts Aisha as a character reference and asks, “Do you know of any past or current allegations of dishonesty against the applicant?” Aisha responds, “No, I do not.”

Answer 30

Here, Aisha will be subject to discipline because she made a false statement of material fact to the state bar—she said she didn’t know of any allegations against Tom, when in fact she did know about the plagiarism allegation. But note that if she had simply refused to respond to the question (rather than lying), she would NOT be subject to discipline because she gained the information while representing Tom as a client—it is protected by her duty of confidentiality.