Regulation of Legal Profession Flashcards
(13 cards)
Reporting Misconduct
lawyer has a duty to report misconduct when
The violation raises a substantial question as to lawyer’s/ judge’s honesty, trustworthiness, or fitness to practice (suspecting is not enough for substantial question)
Exceptions to Reporting Misconduct
- If reporting would violate your duty of confidentiality to a client (Ask for example?)
- If lawyer learned of violation in lawyer’s assistance program
Disciplinary Authority
Any state where lawyer is admitted or where lawyer provided or offered services may discipline lawyer
If conduct in question occurred in connection with a proceeding that was 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 lawyer’s conduct occurred or the predominant effect of the conduct occurred will apply
What Constitutes Misconduct
(1) Violating rules of professional conduct yourself
(2) Attempting to violate the RPC
Helping someone else violate the RPC
(3) Using someone else to violate the RPC
(4) If lawyer commits crime relevant to their honesty, trustworthiness, or fitness
(5) If lawyer commits acts of dishonesty, fraud, deceit, or misrepresentation. Does not have to be convicted of crime + Can be separate from practice of law
(6) Conduct prejudicial to administration of justice
(7) Destroy evidence
(8) Harassment or discrimination in connection with law practice
(9) Cannot discriminate against employees or job candidates but can accept, decline, withdraw from representation
(10) Lawyer cannot refuse to promote females employees but can generally limit their practice to male clients
Reporting Professional Misconduct
A lawyer has a duty to report misconduct when
The violation raises a substantial question as to lawyer’s/ judge’s honesty, trustworthiness, or fitness to practice (suspecting is not enough for substantial question)
EXCEPT:
If reporting would violate your duty of confidentiality to a client (Ask for example?)
If lawyer learned of violation in lawyer’s assistance program
Responsibilities of a Partner or Supervisory Lawyer
Duty to prevent ethical violations
A partner in a law firm or a lawyer that has managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in firm conform to the RPC.
A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the RPC.
A lawyer shall be responsible for another lawyer’s violation of the RPC if:
They ordered or ratified the misconduct
They fail to avoid or mitigate consequences of misconduct by not taking reasonable remedial action
Responsibilities of a Subordinate Lawyer
Acting on orders of another lawyer does not excuse misconduct unless it was a reasonable resolution of an arguable question of professional duty (Examples of an arguable question of Prof. duty?)
Responsibilities Regarding Nonlawyer Assistance
With respect to a nonlawyer employed, retained, or associated with a lawyer → a partner of a firm or lawyer that has direct supervisory authority at a firm shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer (client trust account question)
Held responsible for nonlawyer’s violation if they ordered or ratified the misconduct OR they fail to avoid or mitigate the consequences of misconduct by not taking reasonable remedial action
Professional Independence of Lawyers
Lawyer must not form a partnership with nonlawyer if any partnership activities involve a practice of law.
No nonlawyer can control or have ownership interest in firm/ control over professional judgment of lawyer
No fee splitting with nonlawyers
EXCEPT (4):
(1) A firm can pay death benefits to a lawyer’s estate, even if that person is a nonlawyer
(2) Nonlawyer can get funds to purchase practice from deceased, disabled, or disappeared lawyer
(3) Firm can pay nonlawyer bonus plans and regular salaries
(4) A lawyer can share court-awarded legal fees to a nonprofit organization that employed, retained, or recommended lawyer’s employment in that matter
Unauthorized Practice of Law/
A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.
A lawyer who is not admitted to practice in a jurisdiction shall not:
establish an office or other systematic and continuous presence in this jurisdiction for the practice of law
Represent to public that lawyer is admitted to practice law in that jurisdiction
Multi-jurisdictional Practice of Law
Associate yourself with locally licensed attorney
Pro hac vice
Your honor, can i be admitted just for this case
Mediation or arbitration related to your home state practice
Matter reasonably related to home state practice (think real estate)
EXCEPTIONS
An in-house counsel and govt lawyer can engage in non-litigation practices across state lines
Judicial and Legal Officials
A lawyer cannot make statements about the qualifications or integrity of judges or public legal officials, or candidates for these positions, if such statements are false or made with reckless disregard as to truth or falsity.
