Regulation of the legal Profession Part 2 Flashcards
Unauthorized Practice of Law
What is the rule against unauthorized practice of law?
- A lawyer cannot practice law in a jurisdiction where they are not admitted, unless allowed by that state’s rules. (ABA Model Rule 5.5(a))
- A lawyer cannot assist a nonlawyer in performing legal services that require a law license.
- Lawyers cannot establish an office or have a continuous presence in a state where they are not admitted unless an exception applies.
Example: A New York lawyer who moves to Texas cannot start practicing law there without passing the Texas bar or receiving a special temporary license.
Temporary Multi-Jurisdictional Practice
When can a lawyer temporarily practice in a state where they are not licensed?
- Association with a Local Lawyer – A lawyer may provide legal services in another state if they work with a lawyer who is licensed in that state and who actively participates in the case. (ABA Model Rule 5.5(c)(1))
- Pro Hac Vice Admission – A lawyer can request special court permission to handle a specific case in another jurisdiction. Many states require local counsel to be involved. (ABA Model Rule 5.5(c)(2))
- Mediation or Arbitration – A lawyer may engage in mediation, arbitration, or other ADR proceedings if it is related to their home-state practice. (ABA Model Rule 5.5(c)(3))
- Other Temporary Practice – A lawyer may temporarily work in another state if their work is connected to their home-state practice. (ABA Model Rule 5.5(c)(4))
Example: A California lawyer representing a client in a contract dispute where mediation occurs in Texas can participate without needing a Texas law license.
Permanent Multi-Jurisdictional Practice
When can a lawyer have a continuous presence in another state?
- In-House Counsel & Government Lawyers – Lawyers working as in-house counsel or for the government can work in another state but must get pro hac vice admission for court cases. (ABA Model Rule 5.5(d)(1))
- Practice Authorized by Federal or Local Law – Some laws allow lawyers to practice in specific legal areas even if they are not licensed in that state. (ABA Model Rule 5.5(d)(2))
Example: A Maryland lawyer working as corporate counsel for a Texas company does not need a Texas license unless they represent the company in a Texas court.
Unauthorized Practice by Nonlawyers
What activities are considered unauthorized practice of law?
- Appearing in court on behalf of someone else.
- Negotiating settlements on behalf of clients.
- Drafting legal documents that affect legal rights, such as contracts, wills, or trusts.
- Providing legal advice that requires professional judgment.
Example: A paralegal preparing and signing a client’s will without a lawyer’s supervision is engaging in unauthorized practice.
Lawyers’ Responsibilities Over Nonlawyers
What responsibilities do lawyers have when supervising nonlawyers?
- Partners and managers must ensure nonlawyers comply with ethical rules. (ABA Model Rule 5.3(a))
- Direct supervisors must train and monitor nonlawyers’ work. (ABA Model Rule 5.3(b))
- A lawyer is responsible for a nonlawyer’s misconduct if they order, approve, or fail to correct it. (ABA Model Rule 5.3(c))
Example: If a lawyer’s assistant discloses confidential client information, the lawyer may be disciplined for failing to supervise them properly.
Subordinate Lawyers
What if a subordinate lawyer follows orders that violate ethics rules?
- Clear violations – The subordinate is responsible and cannot use “I was just following orders” as an excuse. (ABA Model Rule 5.2(a))
- Debatable issues – If the supervising lawyer makes a reasonable decision on an ethics issue, the subordinate is not responsible. (ABA Model Rule 5.2(b))
Ex: If a supervising lawyer orders an associate to destroy evidence the associate cannot claim ignorance and will be held responsible.
Fee-Splitting and Independence
Can lawyers split fees with nonlawyers?
- General rule: Lawyers cannot share legal fees with nonlawyers. (ABA Model Rule 5.4(a))
- Exceptions:
- Salaries & retirement benefits for law firm employees. - Sharing court-awarded fees with nonprofits that recommended the lawyer.
Example: A law firm cannot share fees with a business that refers clients to them.
Partnerships with Nonlawyers
Can lawyers form business partnerships with nonlawyers?
- No, if the partnership involves practicing law. (ABA Model Rule 5.4(b))
- Nonlawyers cannot have control over legal decisions in a firm. (ABA Model Rule 5.4(d))
Example: A lawyer cannot go into business with a financial planner if the business involves offering legal services.
Restrictions on Right to Practice
Can lawyers be restricted from practicing law?
- Employment contracts cannot prevent a lawyer from practicing after leaving a firm. (ABA Model Rule 5.6(a))
- Settlement agreements cannot prohibit a lawyer from representing similar clients in the future. (ABA Model Rule 5.6(b))
Example: A law firm cannot require a departing attorney to agree never to practice law in the same city.
Sale of a Law Practice
When can a lawyer sell their law practice?
- The entire practice or an entire field of practice must be sold.
- The seller must stop practicing in that area.
- Clients must be notified and given 90 days to find new representation. (ABA Model Rule 1.17)
Example: A retiring lawyer selling their estate law practice must inform clients so they can choose a new lawyer.
Ancillary (Nonlegal) Services
Can lawyers provide nonlegal services?
- Yes, but the lawyer must clarify that those services are not legal services. (ABA Model Rule 5.7)
- If a lawyer provides both legal and nonlegal services together, the professional conduct rules apply to both.
Example: A lawyer running a tax consulting business must inform clients that tax advice is separate from legal services.
