Regulation of the legal profession Flashcards
why is the practice of law subject to regulation by the states?
because it affects the public interest
what power do the states have to regulate the profession of law
police powers
what power do the courts have to regulate the legal profession?
inherent power
who promulgates the ethics rules and oversees the discipline of lawyers?
the highest court in the state
what are the 3 sources of ethical rules?
- ABA model rules and judicial code
- case law
- rules of court
what is an integrated bar system?
a bar system where once a lawyer is admitted to practice in the state they must also be a member of the state bar association
do Congress and state legislatures have a hand in shaping lawyer conduct rules?
yes but barely. E.g. Sarbanes-Oxley mandatory reporting requirement
does the federal system have its own bar?
yes
is a federal attorney bound by state law or federal law?
both- federal law and the state where the lawyer engaged in duties
which state regulations apply to the lawyer?
the state where the lawyer is admitted to practice (not where actually practice or where the conduct occurred)
definition of bar
roster of lawyers who are admitted to practice
Rule 8.1(a) regarding the bar application
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
what can you not do on a bar application?
make knowingly make false statements of material fact (rule 8.1(a))
Rule 8.1(b) regarding failure to disclose on bar application
An applicant (or a lawyer connected to the application) 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 response to a lawful demand for information from an admissions authority
regarding the bar application, who has the burden of proof to show good moral character?
the applicant (also has duty to cooperate and make disclosures)
what right does a rejected bar applicant (for bad moral character) have?
the right to judicial review
to determine bad moral character, conduct reflect ____ and ____ is considered
honesty and integrity
may the bar examiners, when investigating moral character, consider all charges against the applicant even ones where the applicant was acquitted?
yes
what type of crimes will lead an applicant to be disqualified from the bar?
- crimes involving moral turpitude (ex. intentional dishonesty for personal gain: forgery, bribery, theft, perjury, robbery, extortion
- crimes involving violence (murder, rape, mayhem)
if an applicant has been involved w/ conduct involving moral turpitude, is he screwed from becoming a member of the bar?
No, if the applicant can show sufficient rehabilitation of his character and present fitness to practice law
what do false statements to bar examiners indicate
moral turpitude (sufficient lack of moral character)
does a person have to be a citizen of the US to be admitted to the bar
no
does a person have to be a resident of the state in which they seek bar admittance
no
what constitutes professional misconduct (3 things; rule 8.4(a))
It is professional misconduct for a lawyer to:
- violate or attempt to violate any of the Rules of Professional Conduct
- knowingly assist or induce another person to violate the Rules or
- use the acts of another person to commit a violation (ex. tow truck driver passing out cards to accident victims)
what types of criminal acts can a lawyer be subject to discipline for?
A lawyer is subject to discipline for committing a criminal act that reflect adversely on his honesty, trustworthiness, or fitness as a lawyer in other respects. (Rule 8.4(b))
-crime must contain characteristic relevant to the practice of law
what other acts (if they do not rise to the level of a crime) may subject the lawyer to discipline?
- acts involving dishonesty, fraud, deceit or misrepresentation
- engaging in conduct that is prejudicial to the administration of justice (ex. discrimination while representing client)
when must another lawyer report another lawyers misconduct to the bar?
when the conduct is in such a way that it raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer
i.e. a lawyer MAY report suspected misconduct but MUST report known misconduct
what is the code of conduct for judges
code of judicial conduct
does a lawyer have to report misconduct that they learned of through privileged communication?
no
does a lawyer have to report misconduct learned of while in the role of the lawyers assistance program?
no
what are the changes of the disciplinary process?
complaint, screening, hearing, sanctions
if a complaint is dismissed, can the lawyer appeal?
no the decision is final
is due process required in a disciplinary hearing?
yes
what does due process mean?
right to counsel, notice, hear, introduce evidence, examine adverse witnesses
can a lawyer invoke 5th amendment right to remain silent in a disciplinary hearing?
yes
do the rules of evidence apply to an evidentiary hearing?
no
in a disciplinary hearing, who has the burden of proof?
the prosecutor
what is the burden of proof standard in a disciplinary hearing
beyond a preponderance of the evidence
if lawyer wants to appeal grievance committee’s decision in a hearing, who reviews?
the highest court in the state
what are the 3 types of sanctions
- private or public reprimand or censure (goes on lawyer’s record)
- suspension (can’t practice for a period of time)
- disbarment (can’t practice permanently but can apply for readmittance if can show rehabilitation)
if the misconduct happens in connect w/ a case, which state’s conduct rules apply?
the state where the tribunal w/ the pending case sits
what is the general rule on which state’s professional rules will apply?
the state where the conduct happened (or where the predominant effect of the conduct happened)
does a disbarment or sanctions in one state affect a lawyer’s ability to practice in another jurisdiction
no
in terms of federal courts, what does a lawyer’s discipline signal?
competent evidence and may suggest the federal court should impose the same discipline
what constitutes professional misconduct? (ABA rule 8.4(a)
- the lawyer violates or attempts to violate the rules of professional conduct
- the lawyer knowingly assists or induces another to violate the Rules
- the lawyers uses the acts of another person to commit a violation
if a lawyer fails to report misconduct, what happens to that lawyer?
they are subject to sanctions
if a lawyer learns of another lawyer’s misconduct through privileged communications, must that lawyer report it?
no b/c it would violate the confidentiality rules
what are the 3 most common types of imposed sanctions?
- private or public reprimand or censure (does go on the lawyer’s record)
- suspension (definite period of time; automatically reinstated)
- disbarment (permanent revocation; can reapply upon rehab)
generally speaking, which jurisdiction’s ethical rules will apply to the lawyer’s misconduct?
in the jurisdiction where the predominant effect of the conduct happened (see ABA Model Rule 8.5(b)(2)
can a lawyer contract w/ a client to specify the predominant effect jurisdiction?
yes, so long as it only relates to COI
under ABA Model Rule 5.5(a), what are the 2 prongs that make up the rule against the unauthorized practice of law?
- a lawyer is subject to discipline for practicing in a jurisdiction where she is not admitted to practice AND
- a lawyer is subject to discipline for assisting a non lawyer to engage in the unlicensed practice of law
what can a lawyer not do if they are not admitted to practice law in a specific jurisdiction?
- represent that she is admitted to practice in that jurisdiction
- establish an office or practice in that jurisdiction
what are the 4 situations when a lawyer can practice law in a state that they are not admitted to on a temporary basis? (prong 1 of the rule against the unauthorized practice of law)
- association w/ a local lawyer (local L has to actively participate in matter)
- special permission to practice in local tribunal
- admission is called “pro had vice” –> admission for purposes of this matter only
- limited to engaging in preliminary activities - mediation or arbitration arising out of practice in home state
- arise out of or are reasonably related to - other temporary practice arising out of practice in home state
- catchall category
- can practice out of state if the L’s out of state practice is reasonably related to the L’s home state practice
under what circumstances can a foreign L practice law in the US?
- license and good standing in other country
- deals w/ primarily international law or law of the foreign jurisdiction
- if pro hac vice admission, subject to greater scrutiny, judge can limit extend of participation
what are the 2 instances where an L can open a permanent law office in a state where they are not admitted?
- lawyers employed by their only client (ex. in house counsel; can have office and give advice but can’t litigate; if foreign L, then must consult w/ licensed L in that state)
- legal services authorized by federal or local law (can practice a restricted branch of law in a state where the L is not otherwise permitted to practice; ex. patent lawyer in FLA)
T/F: a person not admitted to practice as a lawyer is permitted to engage in the unauthorized practice of law?
False
what are the 3 factors that are involved in determining whether the practice of law is involved?
- legal knowledge/skill is beyond that of average lay person
- activity concerns binding legal rights/remedies
- activity is one traditionally performed by lawyers
if a non lawyer practices law w/ out authorization, what are they subject to?
injunction, contempt, criminal conviction
can a lawyer permissible delegate tasks pertaining to the practice of law to a non lawyer?
yes, so long as the L supervises and is responsible for the results
can a L advise a person who wants to appear pro se?
yes, so long as they are appearing on their own behalf in a legal matter
can a suspended or disbarred L engage in the practice of law?
no
can a suspended or disbarred L get another lawyer to assist him in the practice of law?
no
