Regulation of the legal profession Flashcards
Who regulates lawyers?
- The state’s highest court
- statutes (like special obligation for securities lawyers under federal law, or state evidence law governing atty client privilege)
- case law
Admissions requirements SCOTUS standard
rationally related to the practice of law
e.g.
* graduated from law school
* take oath to uphold constitution
* good moral character
effect of criminal acts on admission
rejection generally requires crimes of moral turpitude like crimes of violence or dishonesty
Lying is ALWAYS moral turpitude
are citizenship and residency rationally related for admission purposes?
NO
Requirements for applicant and her reference
- You cant lie (knowingly false statements)
- must correct misapprehensions (duty of confidentiality excepted)
- respond to all Questions
True or false: atty client privilege always trumps duty to report
TRUE
when is a lawyer subject to discipline for committing a CRIME, even if not convicted?
crimes relevant to honesty, trustworthiness, fitness
(e.g. taxes, fraud)
NOT relevant: adultery, weed possession
when is a lawyer subject to discipline for committing an ACT, even if not related to practice of law?
- ANY ACT of dishonesty, fraud, deceit, misrepresentation
e.g. you sell a house and misrepresent the condition (cheating clients)
- Conduct prejudicial to administration of justice (e.g. destroying evidence)
- while Practicing law (and within firm), harass or discriminate based on a protected class *race, sex, religion, national origin, ethnicity, age, sexual orientation, gender, marital status, socioeconomic status
but you can promote diversity
duty to report misconduct, when MUST you report and what are the limitations?
you may report any violation, but you MUST report violation raising SUBSTANTIAL question (cheating on taxes, using client funds, destroying evidence) as to honesty, trustworthiness and fitness that you KNOW of
insubstantial: advertising, communication
Limit:
* duty of confidentiality
* if you are part of an approved lawyer assistance program (like lawyer support groups)
unauthorized practice of law: what activities require license?
- appearance at judicial proceedings and depositions
- drafting wills, contracts, etc.
- negotiating settlements
- giving legal advice
appearing pro se is not unauthorized practice. Lawyer not subject to discipline by helping someone represent themselves
unauthorized practice of law: what activities dont require license?
- interviewing people
- filling in forms
- preparing tax returns
methods of out of state practice:
- associate with locally licensed atty
- admission pro hac vice (you can do preliminary stuff like interviews before you get PHV)
- mediation or arbitration related to your own state practice
- anything reasonably related to home state practice
when can you practice anywhere permanently?
- in house counsel
- patent prosecution lawyers
supervisor/managing partner responsibility
- each managing partner has to make sure firm has systems in place to ensure compliance
- supervising lawyers must make efforts to ensure subordinates comply with rules
When are supervisors vicariously responsible?
- ordered or ratified
- failure to mitigate
true or false: supervisory lawyers’ responsibility extend to non lawyer employees of firms
TRUE
true or false: acting on orders of another lawyer does not excuse misconduct, what’s the exception?
true
action was reasonable resolution of an arguable question os professional duty
e.g. arguable includes conflict of interest Qs
true or false: lawyer and non-lawyer can open a restaurant
yes
true or false: no partnerships with non lawyers if any part of the partnership includes practice of law
true
can a non lawyer have control or ownership interest in a firm?
NO
Can you pay a portion of legal fees with a non lawyer?
no
fee splitting exceptions
- death benefits to lawyer’s estate
- funds to purchase practice from deceased, disabled, or disappeared lawyer
- bonus plans and regular salaries to employees BUT no fee splitting
- court awarded legal fees with non profit org that retained or recommended lawyer in that matter
what is the exception to no non-compete classes restriction right to practice?
retirement benefit
true or false: a lawyer is subject to discipline if they agree to restrict their right to practice as part of a settlement offer
true
seller’s duties when selling law practice
- you must sell entire practice or entire area, cannot just sell specific cases
- must notify all clients of sale, right to obtain other counsel, consent to transfer file to buyer presumed after 90 days
- cannot continue to practice in that local area (but can be government lawyer, in house, etc.)
buyer’s duties in sale of law practice
honor all existing fee agreements
cannot increase feeds
true or false: you are a lawyer and have a separate accounting firm, you MUST inform clients of accounting firm that this is not a law practice, atty-client privilege does. not apply. If you dont, you will be subject to the rules
TRUE
