Regulation of the Legal Profession Regulation of the Legal Profession Flashcards
Who Regulates Lawyers?
Who has the authority to regulate lawyers, and what are their roles?
- State Courts: Have **inherent authority* over the regulation of lawyers because law practice is tied to the administration of justice. Courts set ethical rules and oversee lawyer discipline.
* Bar Associations: Some states have integrated (mandatory) bar associations, where membership is required for admission. They administer exams, provide continuing legal education (CLE), and enforce discipline.
*** Legislatures: **Pass laws that affect legal practice, such as attorney-client privilege laws or regulations like the Sarbanes-Oxley Act, which imposes duties on lawyers in corporate settings.
- Federal System: Lawyers practicing in federal courts or before federal agencies must adhere to federal ethics rules, which can differ from state rules.
- Multi-State Regulation: A lawyer admitted in multiple states must comply with each state’s ethics rules. Choice of law rules determine which state’s rules apply when conflicts arise.
Example: A lawyer practicing in both New York and California must follow each state’s ethics rules and can face discipline in both if a violation occurs.
Admission to Practice Law
What are the requirements for bar admission, and what can cause rejectio
- Basic Requirements: Most states require applicants to complete law school, pass a bar exam, and demonstrate good moral character.
- False Statements or Omissions: ABA Model Rule 8.1 prohibits knowingly making false statements or failing to disclose important information on bar applications.
- Burden of Proof: The applicant must prove good moral character and cooperate with investigations.
- Procedural Rights: Applicants have due process rights, meaning they are entitled to notice of issues, an opportunity to explain past conduct, and judicial review if denied admission.
Example: A bar applicant who conceals a past cheating suspension may be denied admission. If discovered later, the lawyer may face discipline or disbarment.
Good Moral Character
What factors are considered when evaluating an applicant’s moral charact
- Investigative Process: Applicants must complete questionnaires, provide references, and may need to appear at hearings.
- Criminal Conduct: Only crimes involving moral turpitude (dishonesty, fraud, or violence) can disqualify an applicant. Mere criminal records are not automatic disqualifiers.
- **Rehabilitation: **An applicant with past misconduct may still be admitted if they prove they have reformed and are now fit to practice.
- **Concealment as Misconduct: **Even if the underlying conduct is not disqualifying, failing to disclose it is grounds for rejection.
- **Citizenship & Residency: **U.S. citizenship and state residency cannot be required for bar admission (In re Griffiths, Piper v. Supreme Court of NH)
Example: A lawyer convicted of tax fraud may be denied admission, while a person arrested in college for peaceful protest is unlikely to be rejected.
Professional Misconduct
What types of conduct can result in disciplinary action for a lawyer?
- Violating Ethics Rules: ABA Model Rule 8.4(a) makes violating or attempting to violate any rule of professional conduct a disciplinary offense.
- Criminal Acts: Crimes reflecting dishonesty (fraud, tax evasion, embezzlement) or fitness to practice law (assault, obstruction of justice) lead to discipline.
- Dishonesty, Fraud, or Deception: Lying to clients, courts, or other parties violates ABA Model Rule 8.4(c).
- Improper Influence: Lawyers cannot claim they can influence judges or government officials unethically (ABA Model Rule 8.4(e)).
- Harassment or Discrimination: Prohibited in legal practice (ABA Model Rule 8.4(g)).
Example: A lawyer convicted of tax fraud or who fabricates evidence in a case is subject to discipline.
Duty to Report Misconduct
When must a lawyer report another lawyer’s or judge’s misconduct?
- **Mandatory Reporting: **Lawyers must report serious ethical violations that raise substantial questions about honesty, trustworthiness, or fitness to practice (ABA Model Rule 8.3).
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Exceptions: No duty to report if the information is:
1. Confidential (attorney-client privilege or learned through lawyer assistance programs).
2. Gossip or suspicion—knowledge must be based on credible facts. - Failure to Report: A lawyer who does not report serious misconduct may face discipline.
Example: A lawyer who knows another lawyer is embezzling client funds must report it, but if the information was obtained through confidential client discussions, reporting is not required.
Disciplinary Process
What are the steps in a lawyer disciplinary proceeding?
- **Complaint Filed: **Often by clients, other lawyers, or courts.
- **Screening: **If meritless, the complaint is dismissed; otherwise, the lawyer is required to respond.
- **Hearing: **The lawyer has rights to notice, defense, and presenting evidence. Fifth Amendment rights apply—lawyers cannot be forced to self-incriminate.
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Sanctions:
* Reprimand: Public or private warning.* Suspension: Temporary loss of license. * Disbarment: Permanent removal (though reinstatement may be possible).
Example: A lawyer caught falsifying documents may face disbarment.
Choice of Law in Disciplinary Cases
Which jurisdiction’s ethics rules apply in disciplinary cases?
- In Court Cases: The ethics rules of the state where the tribunal sits apply.
- Other Conduct: The rules of the state where the conduct occurred generally apply unless another state has a greater interest.
- Safe Harbor Rule: A lawyer will not be disciplined if they reasonably believed their conduct followed the predominant jurisdiction’s rules.
Example: A lawyer licensed in New York who works on a Florida case must follow Florida’s ethics rules if the case is in a Florida court.
Effect of Discipline in One State on Others
Does discipline in one state automatically apply in another?
- Not Automatic: Discipline in one state does not always apply in another.
- Most States Recognize Misconduct: A lawyer disbarred in one state may face separate proceedings in another.
- Federal Courts Decide Independently: A federal court makes its own determination.
Example: A lawyer disbarred in Illinois may still practice in Texas unless Texas also takes action.
Disability Proceedings
How does the legal system handle impaired lawyers?
- **For Lawyers with Impairments: **Mental illness or substance abuse can lead to suspension until rehabilitation is proven.
- Similar to Disciplinary Process: Involves hearings and potential sanctions.
- Diversion Programs: Many states allow participation in rehabilitation programs instead of immediate discipline.
