Regulation of Legal Profession

Question 1

what are the sources of regulation

Answer 1

courts: highest court in state usually promulgates ethics rules, case law, rules of court

bar associations

congress and state legislatures

Question 2

what states are lawyers subject to regulation by

Answer 2

each state he is admitted to practice in

Question 3

what must applicant and lawyer in connection with application not do on application

Answer 3

• must not knowingly make false statement of material fact
• must not fail to disclose a fact necessary to correct a misapprehension known to have arisen
• knowingly fail to respond to request

note that duty of confidentiality applies still if the lawyer is your lawyer

Question 4

what is conduct relevant to moral character

Answer 4

criminal conduct involving moral turpitude

concealment of past conduct is turpitude

refusing to take the oath to uphold law

Question 5

can turpitude be overcome

Answer 5

yes just have to show sufficient
rehabilitation of his character and a present fitness

Question 6

what are NOT required

Answer 6

citizenship and residency

Question 7

what constitutes professional misconduct re: the rules

Answer 7

1. violating or attempting to violate the rules of professional conduct
2. knowingly assisting or inducing another to violate the rules
3. using the acts of another person to commit the violation

Question 8

what constitutes professional misconduct re: criminal acts

Answer 8

the crime must involve some characteristic relevant to the practice of law, like dishonesty, violence, etc. drunk driving probably won’t count

Question 9

what conduct outside of law might constitute professional misconduct

Answer 9

any conduct involving dishonesty, fraud, deceit, or misrepresentation even if its not a crime

Question 10

other things that are misconduct

Answer 10

conduct prejudicial to administration of justice

stating/implying ability to improperly influence officials

assisting a judge in violating judicial code

Question 11

what constitutes harassment or discrimination in law practice

Answer 11

can’t do anything discriminatory related to the practice of law

note: peremptory challenges on a discriminatory basis is not enough on its own

Question 12

what doesn’t constitute harassment/ discrimination

Answer 12

can accept/decline/withdraw from representation or limit practice to members of underserved

provide legit advice

promote diversity

Question 13

when MUST you report professional misconduct

Answer 13

when you KNOW that another lawyer has violated the rcp in such a way that it raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer

Question 14

when MAY you report professional misconduct

Answer 14

if you SUSPECT another lawyer has violated rcp in a way that raises a substantial question as to honesty, trustworthiness, or fitness as lawyer

Question 15

what if you fail to report

Answer 15

you’re subject to discipline

Question 16

what are the exceptions to duty to report

Answer 16

confidential info and lawyers’ assistance programs

Question 17

what are the rcp punishments

Answer 17

private or public reprimand

suspension

disbarment

Question 18

what is the rule for choice of law

Answer 18

if the conduct happened in connection with a proceeding before a tribunal, the ethics rules of the jdx in which the tribunal sits will be applied.

for other conduct, the rules of the jdx in which the conduct occurred will apply – but if the predominant effect of the conduct is in some other jdx, that idx rules will apply

Question 19

when will a lawyer not be subject to discipline in a jdx

Answer 19

if his conduct was proper in the idx in which he reasonably believed the predominant effect will occur

Question 20

how do states view other states’ punishments

Answer 20

as conclusive evidence of misconduct but not of the sanctions imposed – they are free to impose their own

Question 21

how do fed courts view other states’ punishments

Answer 21

each fed court in which a lawyer is admitted must do an independent evaluation of the conduct, but if a lawyer has been disciplined by a state its probably sufficient in itself to punish them for it again

Question 22

what are disability proceedings

Answer 22

a suspension due to alcoholism or whatever until they can show rehabilitation

Question 23

what are the two prongs for the rule against unauthorized practice of law

Answer 23

1. a lawyer is subject to discipline for practicing in a jdx where she isn to admitted to practice
2. lawyer is subject to discipline for assisting another person in unlicensed practice of law

Question 24

how can a lawyer practice in a state he’s not licensed in on a temporary basis

Answer 24

1. association with a local lawyer who actively participates in the matter
2. get pro hac vice admission
3. mediation or arbitration is fine if reasonably related to home state practice
4. catch all category for stuff reasonably related to home state practice

Question 25

what are the permissible types of permanent multi jdx practice

Answer 25

in house or gov
in rare instances, fed or local law allows lawyer to practice a restricted branch of law not licensed in

Question 26

test for if the practice of law is involved

Answer 26

1. whether the activity involves legal knowledge and skill beyond layperson level
2. whether activity constitutes advice or services concerning binding legal rights or remedies
3. whether the activity is one traditionally performed by lawyers

Question 27

what are some activities constituting law practice

Answer 27

-appearing in proceedings
-settlement negotiations
-drafting docs that affect substantial legal rights or obligations

Question 28

can you delegate to non lawyer assistants

Answer 28

yes but lawyer must supervise and be ultimately responsible for esults

Question 29

what are the duties of a partner/supervisor

Answer 29

must make reasonable efforts toe assure the other lawyers adhere to the rules

small firm – informal supervision and admonition might be enough.

big firm –more elaborate

Question 30

when is a lawyer subject to disciple for violation committed by another lawyer

Answer 30

1. first lawyer ordered the misconduct or ratified it
2. first lawyer is a partner or manager or has direct supervisory control over second and she knew about the the misconduct at a time when its consequences could’ve been avoid and failed to take reasonable remedial action

same for non lawyer employees

Question 31

what is the duty of partners/ supervisors for non lawyer employees

Answer 31

must make reasonable efforts to assure the conduct is compatible with obligations of the profession

Question 32

what are the responsibilities of a subordinate lawyer

Answer 32

lawyer must follow rules even when acting under the directions of another person – orders from supervisor are no excuse for clearly unethical conduct

– but working under orders may be relevant for if subordinate had the knowledge required for some violations

Question 33

when does a subordinate not violate the rules by acting in accordance with a supervisors unethical order

Answer 33

no violation if acting in accordance with a supervisor’s reasonable resolution of an arguable question of professional duty

Question 34

can a lawyer form a partnership with a non lawyer

Answer 34

not if any part of the partnership activities will constitute the practice of law

Question 35

can a lawyer make a deal restricting own right to practice

Answer 35

no, except for retirement benefits

Question 36

what are the requirements for selling a law practice

Answer 36

1. seller will cease to engage in the private practice of law in the field involved
2. the entire practice must be sold
3. written notice must be given to seller’s clients and that buyer will have their files if they don’t respond in 90 days
4. seller must take on all clients, can’t up fees