Regulation of the Legal Profession Flashcards
What kind of power do the court have to regulate the legal profession in and out of court?
Inherent power
Who does this power to regulate rest with (in the state)?
Highest Court in the state. The highest court generally promulgates the ethics rules and oversees the discipline of lawyers.
What mandatory duty does the Sarbanes-Oxley Act impose on a securities lawyer?
Must report when lawyer becomes aware of credible evidence that a client is materially violating a federal or state securities law.
Regulation by multiple states
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.
[Bar Application] False Statements
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)]
[Bar Application] Failure to Disclose Information
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)]
[character & fitness] Criminal Conduct - Moral Turpitude
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.
[character & fitness] Criminal Conduct - Rehab.
Can still gain admission despite past moral turpitude if can demonstrate sufficient rehabilitation of character and a present fitness to practice law.
[character & fitness] Concealment
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.
Citizenship & Residency Requirements
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)]
What constitutes professional misconduct?
(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)].
Commission of Criminal Acts
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.
Dishonest, Fraud, Deceit, or Misrepresentation
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)
Assisting Judge in violation of Judicial Code
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)]
Duty to report misconduct (legal profession is self-policing)
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
[key definitions] “Knowledge & Substantial
“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.”
Effect of Sanction in other Jurisdictions - States
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.
Effect of Sanction in other Jurisdictions - Federal
Each federal court in which a lawyer is admitted to practice must make an independent evaluation of the lawyer’s conduct.
Two prongs of unauthorized practice of law
(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)].
Permissible Types of Temporary Multi-Jurisdictional Practice (4 ways)
(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.
Permissible Types of Permanent Multi-Jurisdictional Practice
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)]
What is the practice of law?
(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)]
What are some activities that constitute the practice of law? (when done of behalf of another)
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.
When delegating work to a non lawyer assistant?
The lawyer must supervise the delegated work carefully and must be ultimately responsible for the results.
