Regulation of the Legal Profession

Question 1

What kind of power do the court have to regulate the legal profession in and out of court?

Answer 1

Inherent power

Question 2

Who does this power to regulate rest with (in the state)?

Answer 2

Highest Court in the state. The highest court generally promulgates the ethics rules and oversees the discipline of lawyers.

Question 3

What mandatory duty does the Sarbanes-Oxley Act impose on a securities lawyer?

Answer 3

Must report when lawyer becomes aware of credible evidence that a client is materially violating a federal or state securities law.

Question 4

Regulation by multiple states

Answer 4

A lawyer is subject to regulation by each state in which the lawyer is admitted to
practice, regardless of where the lawyer actually practices law or where the lawyer’s
conduct occurred. [ABA Model Rule 8.5] If the rules of the states in which the lawyer
is admitted are in conflict, choice of law rules apply.

Question 5

[Bar Application] False Statements

Answer 5

An applicant for admission to the bar, or a lawyer in connection with a bar admission application, must not knowingly make a false statement of material fact. [8.1(a)]

Question 6

[Bar Application] Failure to Disclose Information

Answer 6

Must not: (1) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or (2) knowingly fail to respond to a lawful demand for information from an admissions authority. [8.1(b)]

Question 7

[character & fitness] Criminal Conduct - Moral Turpitude

Answer 7

To cause disqualification of an applicant, the crime in question must involve moral turpitude (crime involving intentional dishonest for the purpose of personal gain OR a crime involving violence). The nature of the offense and the motivation of the violator are also factors in determining the existence of moral turpitude.

Question 8

[character & fitness] Criminal Conduct - Rehab.

Answer 8

Can still gain admission despite past moral turpitude if can demonstrate sufficient rehabilitation of character and a present fitness to practice law.

Question 9

[character & fitness] Concealment

Answer 9

False statements or concealment of facts in response to an inquiry by the admissions comm. is evidence of sufficient lack of moral character to deny admission - even if the underlying conduct does not involve moral turpitude.

Question 10

Citizenship & Residency Requirements

Answer 10

A state cannot require that a person be a United States citizen to be admitted to the practice of law; such a requirement violates the Equal Protection Clause of the United States Constitution. [In re Griffiths, 413 U.S. 717 (1973)] Similarly, a requirement that a bar applicant be a resident of the state in which he is seeking
admission to practice law violates the Privileges and Immunities Clause of the Constitution and is, therefore, invalid. [Supreme Court of New Hampshire v. Piper,470 U.S. 274 (1985)]

Question 11

What constitutes professional misconduct?

Answer 11

(1) violate or attempt to violate any of the rules of professional conduct, (2) knowingly assist or induce another person to violate the rules, or (3) use the acts of another person to commit a violation. [R 8.4(a)].

Question 12

Commission of Criminal Acts

Answer 12

A lawyer is subject to discipline for committing a criminal act that reflects adversely on his honest, trustworthiness, or fitness as a lawyer in other respects. The crime must be relevant to the practice of law.

Ex: crimes involving dishonesty, breach of trust, substantial interference with the administration of justice, and most crimes involving violence reflect on the lawyer’s fitness to practice law.

Question 13

Dishonest, Fraud, Deceit, or Misrepresentation

Answer 13

Any conduct involving dishonesty, fraud, deceit, or misrepresentation constitutes professional misconduct. [ABA Model Rule 8.4(c)]

Examples of this type of misconduct, which need not rise to the level of a crime, include cheating on a bar examination [see In re Lamb, 49 Cal. 3d 239 (1989)—lawyer who impersonated her husband for exam was disbarred], plagiarism [see In re Lamberis, 443 N.E.2d 549 (Ill. 1982)

Question 14

Assisting Judge in violation of Judicial Code

Answer 14

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. [ABA Model Rule 8.4(f)]

Question 15

Duty to report misconduct (legal profession is self-policing)

Answer 15

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

Question 16

[key definitions] “Knowledge & Substantial

Answer 16

“Knowledge” means actual knowledge, but it may be inferred from the circumstances. It has been held to mean more than mere suspicion.

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

Question 17

Effect of Sanction in other Jurisdictions - States

Answer 17

The preferred view is that sister states accept disciplinary action by one state as conclusive proof of the misconduct, but not of the sanctions imposed.

Question 18

Effect of Sanction in other Jurisdictions - Federal

Answer 18

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

Question 19

Two prongs of unauthorized practice of law

Answer 19

(1) a lawyer is subject to discipline for practicing in a jurisdiction where she is not admitted to practice, and (2) a lawyer is subject to discipline for assisting another person in the unlicensed practice of
law. [ABA Model Rule 5.5(a)].

Question 20

Permissible Types of Temporary Multi-Jurisdictional Practice (4 ways)

Answer 20

(1) Association with a local lawyer - associates a local lawyer who actively participates in the matter. [ABA Model Rule 5.5(c)(1)]
(2) Pro Hac Vice
(3) Mediation or other ADR - if her services arise out of, or are reasonably related to, her practice in the state in which she is admitted. [ABA Model Rule 5.5(c)(3)]
(4) Catch - all Category - lawyers out state practice is reasonably related to the lawyers home state practice.

Question 21

Permissible Types of Permanent Multi-Jurisdictional Practice

Answer 21

A lawyer who is admitted in one United States or foreign jurisdiction, and who is not disbarred or suspended from practice in any jurisdiction, may open a law office and establish a systematic and continuous practice in a different jurisdiction in two
narrowly limited situations:
(i) lawyers employed by their only client e.g., in-house corporate lawyers and lawyers employed by the government.
(ii) In rare instances, federal or local law authorizes a lawyer to practice a restricted branch of law in a state in which he is not otherwise admitted to practice. [ABA Model Rule 5.5(d)(2)]

Question 22

What is the practice of law?

Answer 22

(1) whether the activity involves legal knowledge and skill beyond that which the average layperson possesses; (2) whether the activity constitutes advice or services concerning binding legal rights or remedies; and (3) whether the activity is one traditionally performed by lawyers. [ABA, Annotated Model
Rule of Professional Conduct 5.5 (9th ed. 2019)]

Question 23

What are some activities that constitute the practice of law? (when done of behalf of another)

Answer 23

appearing in judicial proceedings; engaging in settlement negotiations; and drafting documents that affect
substantial legal rights or obligations (e.g., contracts, wills, trusts).

Preparing an estate plan is generally considered the province of lawyers, and some courts have also held that nonlawyer clinics on how to obtain a low-cost divorce constitute unauthorized practice.

Question 24

When delegating work to a non lawyer assistant?

Answer 24

The lawyer must supervise the delegated work carefully and must be ultimately responsible for the results.

Question 25

Ethical Responsibility for Another Lawyer’s Misconduct

Answer 25

A lawyer is subject to discipline for a disciplinary violation committed by a second
lawyer if:

(1) The first lawyer ordered the second lawyer’s misconduct or knew about it and ratified it; OR

(2) The first lawyer is a partner or manager or has DIRECT supervisory responsibility over the second lawyer, and she KNOWS about the misconduct at a time when its consequences can be avoided or mitigated and fails to take reasonable
remedial action.

Question 26

Duties of Direct Supervisor Respecting Nonlawyer Employees

Answer 26

A lawyer who directly supervises the work of a nonlawyer employee must make reasonable efforts to assure that the conduct of the nonlawyer is compatible with the obligations of the profession.

Question 27

Ethical Responsibility for Nonlawyer’s Misconduct

Answer 27

subject to discipline when a nonlawyer does something that, if done by a lawyer, would violate a disciplinary rule. Subject to discipline if:
(1) lawyer ordered the conduct or knew about it and ratified it; OR

(2) lawyer is a partner or manager OR has DIRECT supervisory responsibility over the nonlawyer, and the lawyer KNOWS about the misconduct at a time when its consequences can be avoided or mitigated and fails to take reasonable remedial action.

Question 28

Duties Concerning Debatable Ethics Questions

Answer 28

A subordinate lawyer does not violate the rules of professional conduct by acting in accordance with a supervisor’s reasonable resolution of an ARGUABLE QUESTION of professional duty.

Question 29

Partnership with Nonlawyer to Practice Law Prohibited

Answer 29

A lawyer must not form a partnership with a nonlawyer if any part of the partnership activities will constitute the practice of law.

Question 30

Nonlawyer Involvement in Incorporated Firm or Other Association

Answer 30

Lawyer cannot practice in a firm or association authorized to practice law for profit if:
(1) A nonlawyer owns any interest in the firm or association (but, when a lawyer dies, her estate may hold an interest during the administration of the estate);
(2) A nonlawyer is a corporate director or officer or the equivalent thereof; or
(3) A nonlawyer has the right to direct or control the professional judgment of a lawyer.

Question 31

When is a sale permitted?

Answer 31

Permits the sale of a law practice or a field of law practice - including good will, subject to certain circumstances:

Question 32

What must be met in order for the sale to be permitted under R 1.17?

Answer 32

(1) the seller must cease to engage in the private 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 lawyers or firms; and

(3) written notice must be given to the seller’s clients regarding the sale, the clients’ right to retain other counsel or to take possession of their files, and the fact that consent to the transfer of the clients’ files will be presumed if a client takes no action within
90 days of receipt of the notice

Question 33

What if I cannot give notice to client about the sale?

Answer 33

a court order is required to authorize the transfer of the representation of that client to the purchaser. [ABA Model Rule 1.17(c)] Also, the seller must “exercise competence in
identifying a purchaser qualified to assume the practice.” [ABA Model Rule 1.17, comment 11]

Question 34

How are the seller’s clients protected after the sale?

Answer 34

The purchaser must undertake all client matters in the practice, and not just those that generate substantial fees (subject of course to client consent and conflict of interest rules).