Regulation of the Legal Profession Flashcards
Inherent Powers of Courts to Regulate Lawyer
State Courts: regulate all aspects of the practice of law w/in their jrdx, each state w/ its own rules of prof conduct often based on the ABA Model Rules
Federal Courts: each court has its own bar which a lawyer must be admitted to practice
Admission to the Profession
Requirements for Admission:
1) Education- most states require graduation from ABA law school
2) Knowledge- most states require apps pass the bar
3) Character- past conduct may be considered when assessing an applicant’s good character and general fitness to practice law; false statements to bar examiners can result in denial of admissions
4) Residency- N//A
Application Process: restrictions on applicant
- prohibited from knowingly making false statement of material fact regarding bar admission, failing to disclose material fact, or knowingly failing to respond to lawful demand by admissions authority about application
- Violations on MR may prevents admission
Regulation after Admission: Grounds of misconduct:
- violate/ attempt to violate MR, or knowingly assist or induce another to do so
- Commit crim act that adversely reflects on the lawyer’s honesty, trustworthiness, or fitness as lawyer;
- Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation
- engage in conduct prejudicial to admin of justice;
- state or imply an ability to influence gov agency/ official;
- knowingly assist judge/ judicial officer in a violation of judicial conduct rules/ other law
- Engage in conduct that lawyer knows/ reasonably should know is harassment or discrimination
Regulation after Administration: Misconduct Committed by others in Law Firm
- Misconduct of another lawyer/ non-lawyer, ordered or ratified by lawyer
- Manager’s responsibility for firm’s preventative measures: must take reasonable efforts to ensure firm has measures in place that give reasonable assurance that conduct of all lawyers & non-lawyers conforms to MR
- Direct supervisor’s responsibility for supervised person’s conduct: must take reasonable efforts to ensure the supervised person’s conduct conforms to MR
- Failure to remediate known misconduct: when lawyer w/ managerial authority knowns consequences of misconduct can be avoided/ mitigated but fails to take reasonable remedial action
- Duties of subordinate lawyer: must conform to MR even if acting under direction of supervising lawyer; not liable for violation of MR if subordinate lawyer acts in accordance w/ supervising lawyer’s reasonable resolution of an arguable question of professional duty
Regulation after Administration: Misconduct outside of JX
A lawyer is subject to discipline for misconduct in any JX where lawyer is admitted, even if misconduct occurred outside that JX; also subject to discipline by JX where misconduct occurred.
Regulation after Administration: Sanctions for Misconduct
Set by each state; ranges from public/ private censure to disbarment.
Peer Responsibility
Duty to report another lawyer’s misconduct to the appropriate authority.
1) matter must raise a SUBSTANTIAL Q about lawyer’s honesty, trusworthiness or professional fitness
2) NO REQUIREMENT to disclose CONFIDENTIAL INFO protected by MR
3) Lawyer must haev ACTUAL KNOWLEDGE of misconduct (may be inferred)
4) Similar duty to report JUDICIAL MISCONDUCT
5) FAILURE TO REPORT misconduct may subject the lawyer to discipline
6) Report is PRIVILEGED FROM A DEFAMATION claim by other lawyer
Unauthorized Practice of Law: Not admitted to practice in a JX
- unless pro have vic appearance, in association w/ local lawyer, or other temporary practice of law
Unauthorized Practice of Law: Exceptions permitting permanent practice:
- Provisions of legal services only to the lawyer’s employer or its organizational if the forum doesn’t require pro has vice administration
- Services render are permitted by federal or local law
Unauthorized Practice of Law: Assisting non-lawyers in the unauthorized practice of law
-Subject to civil/ Crim penalties as well as disciplinary proceedings; can provide professional guidance to non-lawyers whose employment requires legal knowledge.
Fee Division w/ Non-Lawyers
Not permitted unless paid as a death benefit, a lawyer purchases the practice of a deceased/ disabled lawyer, part of a compensation/ retirement plan, or shared court awarded fees w/ non profit org that employed or retained the lawyer.
Law Firm and other forms of Practice: “Law Firm”
- a lawyer(s) in a partnership, prof corporation, sole proprietorship, or other authorized to practice law, or lawyers employed in a legal services org/legal dept of organization; can include public holding out as firm
- Sharing of fees w/ lawyers in same law firm allowed
Law Firm and other forms of Practice:Limitations on Associations w/ Non-Lawyers
Partnership- no partnership w/ a non-lawyer if any of the partnership’s activities consist of the practice of law
Professional Corporation- no practice of law for profit in or w/ entity where non-lawyer (i) owns an interest; (ii) is a corp director, or (iii) has the right to director or control a lawyer’s professional judgment
Law Firm and other forms of Practice:Third Party Refers Client or Pays Fee
A lawyer may accept compensation from a 3rd party as long as there is no interference w/ lawyer’s independent professional judgment and client gives informed consent.
Law Firm and other forms of Practice: Law Related Services
- Services reasonably related to legal services, but no prohibited as unauthorized practice of law when provided by non-lawyer–subject to MR if services are not distinct from lawyer’s provision of legal services to clients (e.g., accounting, tax prep)
- Lawyer who fails to take reasonable measures to assure that person obtaining law-related services knows that protections of client-lawyer relationship do not exist- subject to MR
Law Firm and other forms of Practice: Sale of Practice of Law
(including goodwill)- compensation for the reasonable value of a law practice may be paid and received.
Law Firm and other forms of Practice: Sale of Practice of Law: REQUIREMENTS
- Seller ceases to practice in all areas of law or an area of law
-Cessation may be
everywhere or only w/in
certain geographic area
-Written notice to clients about the proposed sale; client has right to seek other counsel, but consent presumed after90 days
-Entire practice/ area of practice sold to one or more lawyers/ law firms
-Sell must in good faith
offer entire practice/area
practice; clients need not
remain clients of buyer
-Client fees not increased due to sale
Law Firm and other forms of Practice: Sale of Practice of Law: Situations in which Seller may Still Practice/ Return to Practice
- Seller may work for public agency, legal services to poor, or in-house counsel to a business
- Sale is only of an area of practice
- Return to private practice due to unanticipated circumstances
Law Firm and other forms of Practice: Sale of Practice of Law: Obligations of Purchaser
Undertake all client matters in practice/ practice area, subject to client consent and conflict of interest constraints.
Law Firm and other forms of Practice: Contractual Restrictions on Practice
- A lawyer can’t agree to restrict the lawyer’s right to practice after termination of a partnership, shareholder, or employment agreement (except retirement benefits)
- A lawyer can’t agree to restrict the lawyer’s right to practice as part of the settlement of a client controversy
