Regulation of the Legal Profession Flashcards
Admission
Requirements, Investigations, Rejection
- Admission requirements must be rationally related to the practice of law.
- Duty to cooperate with character investigations by not making knowingly false statements of material fact, responding to info requests, & correcting any misapprehensions with necessary disclosure.
- Misconduct must involve moral turpitude to result in rejection.
Moral tupritude includes: crimes involving dishonesty or violence, & lying
What constitutes professional misconduct?
- Violating, attempting, helping some, or using someone to violate the Rules of Professional Conduct.
- Committing crimes relevant to honesty, trustworthiness, or fitness.
- Committing acts of dishonesty, fraud, deceit, or misrepresentation.
- Conduct prejudicial to administration of justice.
- Harrassment or discrimination based on race, sex, religion, national origin, ethnicity, age, sexual orientation, gender identity, marital status, or SES in connection with the practice of law.
May accept, decline, or withdraw based on a protected class and use such to promote diversity
Duty to Report
Mandatory, Permissive, Exceptions
- Must report a known violation that raises a substantial question as to the lawyer’s honesty, trustworthiness, or fitness to practice.
- May report a violation of another lawyer that you suspect, but don’t know and the question raised is not substantial.
- Duty to report does not apply if it would violate the duty of confidentiality or if the violation was learned through a lawyer’s assistance program.
Where is a lawyer subject to discipline?
Any state where a lawyer is admitted and where they provided/offered legal services.
Choice of Law for Discipline
Conduct occurring in connection with a pending proceeding vs. other
- The ethics rules of the jurisdiction where the proceeding sits will be applied.
- The ethics rules of the jurisdiction where the conduct occurred will apply, unless the predominant effect is in another jurisdiction.
A lawyer will not be subject to discipline if their conduct is proper in the jurisdiction they reasonably believe the predominant effect will occur
What is unauthorized practice of law?
Practicing without a license or assisting someone else in such.
What is/not practice of law?
- Appearing at judcial proceedings, drafting documents, negotiating settlements, & giving legal advice.
- Interviewing people, filling in forms, preparing tax forms, & appearing pro se.
Activity involves beyond average legal knowledge and skill, advice or services concering binding legal rights/remedies, and traditionally performed by lawyers
Temporary Multi-Jurisdictional Practice
A lawyer may provide legal services on a temporary basis if:
* associate with locally licensed attorney
* admitted pro hac vice by the state’s court
* mediation or arbitration
* the matter is reasonably related to their home state practice
Subject to the ethics rules of both jurisdictions
The lawyer must be admitted to practice in 1 state in the US and cannot be disbarred/suspended in any other state
Permanent Multi-Jurisdictional Practice
A lawyer may open a law office and establish a practice in a different jurisdiction if:
* they are a salaried employee of their employer (in-house counsel or government lawyer)
* practice a restricted branch of law
Subject to the ethics rules of both jurisdictions
The lawyer must be admitted in 1 US or foreign jurisdiction and cannot be disbarred/suspended in any jurisdiction
Responsibilities of Partners, Managers, and Supervisory Lawyers
Regarding the Rules of Professional Conduct
- Partners and managers must take reasonable measures to ensure compliance by other lawyers.
- Supervisory lawyers must take reasonable measures to ensure compliance by subordinates.
- Partners, managers, and supervisory lawyers must take reasonable measures to ensure compliance by nonlawyers.
When is a lawyer vicariously liable for another lawyer’s misconduct?
- Ordered the lawyer’s misconduct or knew about it and ratified it OR
- You are a partner, manager, or direct supervisor to the lawyer and knew about the misconduct at a time it could have been avoided/mitigated and failed to take reasonable remedial.
Responsibilities of Subordinate Lawyers
Acting on orders of another lawyerdoes not excuse misconduct unless it was a reasonable resolution of an arguable question of professional duty.
If an obvious violation, then subject to discipline no matter what
Responsibility rests with the supervisor to make decision for an aguable ethics question
Professional Independence
Activities prohibted between a lawyer and nonlawyer
- Partnerships if any of its activities involve the practice of law
- Nonlawyer control or ownership interest in a firm
- Fee splittling with nonlawyers
Fee splitting means to share legal fee for lawyer’s services
When is fee splitting with nonlawyers permitted?
Exceptions to Professional Independence
- Death benefit to lawyer’s estate
- Funds to purchase practice from a deceased, disabled, or disappeared lawyer
- Bonus plans and regular salaries
- Court-awarded legal fees to nonprofit that retained/recommended the lawyer
Restrictions on the right to practice law are prohibited in:
- Law-firm related agreements for when relationship/employment with a lawyer ends (non-compete)
- Settlement agreements
Both parties of the agreement are subject to discipline if agree
Exception: retirement benefit agreements
