Regulation of the Legal Profession Flashcards
What are law-related services that are subject to the MRPC?
In Circumstances that are not distinct from the lawyers provision of legal services
OR
In other circumstances by an entitityu controlled by the lawyer,* IF the lawyer fails to take reasonable measures to assure the person knows*:
- That the services are not legal services
AND
There is no client-lawyer relationship protections
Who has the burden to establish whether or not a lawyer client relationship was established?
The Lawyer, as they must make reasonable steps to let a non-client know that they are not a client.
If a lawyer offers non-legal services as part of thier professional practice, are they still bound by the MPRC?
When are they not?
Yes, Unless they make it clear that the non-legal services are seperate and distinct
What are the general 4 steps of the bar disciplary process
- A complaint is made to the State Bar
- Complaints are Screened by commissioned
- A complaint proceeds to hearing, where the lawyer is entited to due process
- The committee either dismisses the charges or reccomends sanctions
Can a lawyer file a defamation action against a complaintant who filed a complaint against them for violating the MPRC at the state bar?
No, Due process is included in the State bar.
In what 2 places is a Lawyer subject to Discipline?
A lwayer is subject to discipline
1. Where they are admitted
2. Where the conduct occurs
Lawyers may be subject to discipline in more than one jurisdiction
Can a Lawyer be subject to discipline in more than one jurisdiction?
Yes, a lawyer can be subject to disicipline in
1. the jurisdiction they are admitted to AND
2. the jurisdicition that the conduct occurs
When conducting a disciplinary hearing on a lawyer, how does the tribunal which law to apply
- For conduct in connection with a matter before the tribunal the tribunal applies the rule sof the jurisidiction wehre the tribunal sits
- For conduct NOT in connection with a matter before a tribunal, the tribunal applies the rules of the jurisdiction wehre the conduct offured OR the rules of the jurisdicition where the conduct has the PREDOMINANT EFFECT
If a lawyer breaks the MRPC not while in front of a tribunal, how does the disciplinary committee determine which law to apply?
For conduct NOT in connection with a matter before a tribunal, the tribunal applies the rules of the jurisdiction wehre the conduct offured OR the rules of the jurisdicition where the conduct has the PREDOMINANT EFFECT
If a Lawyer seeks to conform thier conduct to the rules of a jurisdiction where they reasonably think their conduct will have a predominant effect, but are mistaken, will the jurisdiction where there actually was a predominant effect be able to prosecute?
No, it is an affirmative defense for a lawyer to try to take actions to conform with a jurisdiction where they think they will have a predominant effect.
state
What is the effect of a lawyer being convicted for misconduct in one state on the other state that has jurisdiction over the convicted lawyer?
That sister State may use the conviction as proof of misconduct, but also may apply a different penalty based on its own rules.
What is the effect of a lawyer being convicted for misconduct in a state on the the federal court that has jurisdiction over the convicted lawyer?
The Federal bar will make an independant investigation, the state conviction will only act as evidence, not proof
What is Professional Misconduct (7 things)
- to violate the MRPC
- Commit a criminal act that reflects adversly on the lawyer’s honesty, trustworliness or tiftnesss
- Enagge in Disonesty fraud, or decdipt
- Engage in conduct that is prejudicial to the administration of justice
- State an ability to improperly influence a government official
- Assist a judge in violating the rules of judicial conduct
- Harrass or disciminate
When must a lawyer report another laywer’s miscondcut?
A lawyer must report another lawyer if they
1. Commit a violation of the MRPC
2. That raises a substantial question
3. Concerning the lawyer’s honesty, trustworthiness or fitness as a lawyer
Must inform the apporpiate disciplnary authority
Information that is Confidential or Gained through a LAP is excluded
Not all rule violations raise this issue!
What information sources are protected from mandatory reporting of a lawyer’s misconduct?
When that information ius confidential or gained through a lawyers assistance program
What must a lawyer who is not addimited to a jurisdiction not do?
- Establish an office or other systemic and contiuous presence in the jurisdiction
- Hold out to the puiblic or otherwise represent that the lawyer is addmitted to practice in the jurisdiction
Under what 4 circumstances may A Lawyer provide leal services on a temporary basis in a jurisdiction which they are not barred?
A lawyer may provide them if (RAMS)
1. Reasonable relation to the lawywers practice
2. Association with another lawyer
3. Mediation or Arbitration arising out of home state practice
4. Special permission to practice by local jurisdiciton
Under what circumstances can a lawyer share legal fees with a non-lawyer?
No, except for
1. Death benefits to the deceased lawyers estate or beneficiaries
2. Sale of law practice
3. Retirement plans for non-lawyer employees
4. Non-lawyer Employee Bonuses
5. Sharing Court awarded fees with a non-profit
What does the MPRC requre for the sale of a law practice (or Area of a law practice)?
A lawyer may sell a law practice if all of the following are met:
1. the Seller ceases to engage in the **private **practice of law in the geographical area
2. the Entire practice is sold (no cherry picking!)
3. the seller gives written notice to each of the seller’s clients (90 days to leave)
4. The sale does not increase the fees charged to existing clients by mere reason of the sale
If there is an unanticipated change in circumstances, the Seller may be able to return top practice (such as an elected judge later losing thier election)
