regulation of the legal proffession Flashcards
who regulates attorneys
state supreme courts and federal district courts
how many states have adopted the model rules in their entirety
very few; each state has their own rules
what is the character and fitness test primarly concerned with
criminal history of the candiate
are all crimes for the purpose of the character and fitness test disqualifying?
no; disqualifying crimes involve truth telling
is there a residency requiremnt for admission
no that runs into a consitutional issue
what are the three main ways in which an admitted attorney can be subject to discpine
1.violation of the rules
2. criminal act that touches on attorney’s honesty or fitness to practice
3. fraud or deceit, even if not criminal
what is fraud upon the court (aka procedural fraud)
lying to the court
what are the elements of common law fraud (ie conventional fraud) five in all
- making a statement
2.knowing its false - intending to decive
- causing reasonble reliance and;
- resulting in damage
for the purpose of discipline under these rules via fraud, its it necessary that anyone relied upon or suffered damages from the misrepresentation
no
what do partners at firms have to make reasonable efforts to ensure
that the lawyers and non professional employees comply with the rules
what do these rules mean by non professional employees
anyone not a lawyer that works at the firm ie secretaries, paralegal’s, IT staff ect
what do firms need to have in order to ensure complaice with the rules
a system
when are supervisory attorneys liable for violation of the rules by supervised attorneys and non professional employees
if they order, ratifu, or after learning of a violation, fail to take remedial action
what is the level of responsibility for the conduct of non professional employees that supervisory lawyers have
the same for lawyers
can a subordinate lawyer defend their vioaltion by saying they were just doing what they were told via their supervisor
no; only a reaosnble order by a supervisor is a defense
can out of state conduct expose you to displine at home
yes, you are always a lawyer no matter where you are
what is the snitch rule
a lawyer is required to report violations to disciplinary authorities
when is a lawyer required to snitcth
when the lawyer has actual knowledge of substantial violation AND the violation goes to lawyers substantial HONESTY, TRUSTWORTHINESS and FITNESS TO PRACTICE LAW
does a lawyer have a duty to report the violations of a judge too
yes!
how long can an out of state lawyer pratice in a jurisdction
on a tempory basis
what are three things needed for a lawyer to be able to pratice out of state where they are not liscesend ?
- pro hac vice admission
- assionation with legal counsel
- must be working for a client from home jursidction
what is pro hace vice admission requirement for a lawyer to practice out of state
merans that there must be a vice (ie a disupute/case) not just limited to trials
what does association with local counsel look like for the purpose of practcing out of state
local counsel must actually participate; cant be a silent partner
what happens if non lawyers are in the unauthorized practice of law
they get an injunction (stop doing that)
what happens if lawyers are in the unauthorized practice of law
loss of fees
how would lawyers aid and abet the unauthorized practice of law
by failing to supervise non professionals
how can lawyers avoid aiding and abetting the unauthorized practice of law
must have client contact and must supervise and take responsibility for the work of the non professional
how can lawyers held pro se litigants
ghostwirting – a lawyer can give limited aid and assitnace
can pro se litigants be entities
no
can a lawyer divide legal fees with non lawyers
no
what is the exceptions to the rule that a lawyer cant divide legal fees with non lawyers
estates of decedent lawyers, retirement plans
what are legal fees limited to
legal work only
can real firms split fees
yes, the entity must be a professional corporation
what are four things to know in terms of fee division with non lawyers
- a lawyer cant divide LEGAL fees with non lawyers
- real firms may split fees
- no non lawyer can be in control of a lawyer’s judgment (ie no control by a thrid party payor)
- clients must know theyare not dealing with a lawyer
is the sale of a practice to other laywers allowed
yes; they can sell the whole praice or only area
what must a lawyer do if they want to sell their practice to another lawyer
- stop practice
- give notice to the client and
- sell the practice to a lawyer
what cant the lawyer do when they sell their practice
cant increase the fees associated with the sale
after the sale of their practice cab the attorney return to practice?
yes if
in house counsel
pro bono work
practice a different area of law
or a change in circumstances
can you crate a covenant not to compete with other lawyers
no; but there is an exception for sale of practice
