Regulatory Controls

Question 1

Who provides state regulation?

Answer 1

1. states legislatures may establish standards, but state courts have the ultimate power to regulate the legal profession
2. state bar association types:
   i. integrated state bar: all attorneys must join to practice
   ii. voluntary state bar

Question 2

Who provides federal regulation?

Answer 2

1. Federal Courts.
   i. each federal court has its own bar admission requirements
   ii. usually require attorney to be a member of the State bar and seek separate admission
   iii. lawyers admitted to practice in another jurisdiction can seek pro hac vice admission in federal court to litigate a particular case
2. Federal Administrative Agencies.
   i. practicing before a federal administrative agency
   ii. usually only require attorneys be a member of the state bar
   iii. US Patent and Trademark Office requires a special exam
3. Federal Government Attorneys.
   i. federal government attorneys are subject to state ethics laws and rules in each state where the attorneys practice

Question 3

are residency requiremets on admission to a bar allowed

Answer 3

1. US citizenship or state residency requirements are unconstitutional

Question 4

Character and Fitness rules

Answer 4

i. must demonstrate good moral character, must not display dishonesty/moral turpitude
ii. if questioned, applicants have due process rights to a hearing and to confront adverse witnesses, and of judicial review of denial based on moral character

iii. there must be a nexus between requirements for admission and fitness to practice law
a. denial can be based on refusal to taken the oath to uphold the State or federal Constitution, but mere membership in an organization is insufficient without
b. denial cannot be based on personal beliefs not translated into action more

iv. applicants must cooperate with character investigations
i. must not knowingly make a false statement of material fact
ii. must disclose facts necessary to correct a misapprehension known by applicant
a. duty to correct misleading information
b. does not require disclosure of info protected by confidentiality provisions
iii. must respond to lawful demands for information

Question 5

What types of professional misconduct are there?

Answer 5

1) violations of the rules; 2) criminal acts re honesty or fitness to practice (moral turpitude) 3) dishonest conduct 4) obsturction of justice 5) harrasment or discrimination in the practice of law

1. PRC: violating Rules of Professional Conduct
   i. violations, attempts, knowingly assisting others, soliciting, or using another’s acts to violate RPC
   ii. knowingly assisting a judge violating the Code of Judicial Conduct or other law (ex. attempting to use personal connections to convince a judge to dismiss charges)s
2. criminal acts reflecting lack of honesty or fitness to practice
   i. includes most crimes involving violence
   ii. some crimes not included: soliciting prostitution, one DUI, marijuana possession
3. dishonest conduct involving fraud, deceit, or misrepresentation
   i. corruption: stating or implying an ability to improperly influence a government agency or officials, or achieve results by illegal or unethical means
4. unjust: conduct prejudicial to the administration of justice
   i. usually involves rules of litigation (ex. falsifying evidence)
   ii. a lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists
5. harassment or discrimination in conduct related to the practice of law
   i. does not limit lawyers’ ability to charge fees or limit the scope of their practice

Question 6

Duties to report professional misconduct

Answer 6

1. duty to report disciplinary violations of other lawyers only if they raise a substantial question as to the other lawyer’s honesty, trustworthiness, or fitness as a lawyer
2. may report suspected misconduct, must report known misconduct
3. failure to reporting results in discipline under the rule requiring disclosure
   i. rule does not apply if it would require disclosure of confidential information
4. CA: only has self-reporting requirements, which apply if:
   i. sued for malpractice more than 3 times in 12 months
   ii. found civilly liable for fraud, breach of fiduciary duty, etc.
   iii. sanctioned for over $1000 (except discovery sanctions)
   iv. charged with a felony
   v. convicted of a serious crime
   vi. disciplined in another jurisdiction
5. CA: lawyers must not make arrangements that:
   i. prohibit another from reporting professional misconduct claims
   ii. require a person to withdraw or refrain from cooperating such claims
   iii. provide that the record of any civil action for professional misconduct be sealed from review by a disciplinary agency

Question 7

Disciplinary Process

Answer 7

1. complaint filed with state bar
   i. filing a complaint is privileged, and cannot be the basis of a claim (ex. defamation)
2. preliminary screening process by grievance committee (lawyer may respond if allegation is meritorious)
3. nonpublic hearing before grievance committee
   i. lawyer has right to counsel and right to cross-examine witnesses
   ii. lawyer may plead the 5th Am. protection against self-incrimination without penalty
   iii. exclusionary rules of criminal procedure do not apply
   iv. burden on prosecutor, standard between preponderance and beyond reasonable doubt
4. sanctions
   i. private or public censure or reprimand
   ii. suspension of license to practice
   iii. disbarment; may apply for readmission on proof of rehabilitation
5. lawyer is entitled to review of the decision by the state’s highest court

Question 8

Effect of Sanctions in Other Jurisdictions

Answer 8

1. states: usually accept the disciplinary action by one state as conclusive proof of a lawyer’s misconduct, but most states impose their own sanctions
2. federal courts: each federal court the lawyer is admitted to practice in makes an independent evaluation, accepting as competent evidence the lawyer’s discipline by a state

Question 9

Choice of Law in Disciplinary Proceedings

Answer 9

1. a lawyer is subject to regulation in every jx where she practices
2. court proceedings: for conduct in connection with a proceeding before a tribunal, the ethics rules of jx where the tribunal sits apply, unless tribunal’s rules provide otherwise
3. other conduct: the rules of the jx where the conduct occurred apply, unless the predominant effect of the conduct is in some other jx, in which case that jx’s rules apply
4. conflicts of interest only: lawyer and client may enter into an advance written agreement specifying the “predominant effect” jurisdiction
   i. requires the client’s informed consent
5. good faith: a lawyer will not be subject to discipline if their conduct conforms to the rules of a state where they reasonably believed the predominant effect would occur