Regulatory controls, est practice, info re services Flashcards
Although the state legislature establishes standards, the authority to actually regulate the practice of law is vested in?
The Court of Appeals and the Appellate Division of the Supreme Court
What is it called when an attorney of one bar is allowed to practice in another state’s courts?
Pro hac vice
Are residency requirements permissible for practice under a state’s bar?
No, they are a violation of the privileges and immunities clause
*How is a disciplinary proceeding initiated? Who may file the complaint, and where a file it?
It is initiated by complaint to the departmental disciplinary committee or to any of the departments of the Appellate Division. It may be filed by any interested party. Thereafter there is a nonpublic hearing before the committee.
***There are 3 forms of disciplinary sanction; name them
Disbarment
- Suspension
- Public or private censure by the court or New York Bar Association (wrist slap)
**How does choice of law work with respect to the punishment of lawyers practicing in multiple states?
The court will apply New York law unless the lawyer is licensed in multiple states and the conduct has its PREDOMINANT EFFECT in another state.
- Where a nonlawyer is giving advice related to legal issues, what are the restrictions on a lawyer’s relation to that advice? E.g., a real estate broker filling in blanks or drafting a sales contract, a tax advisor preparing tax returns or counseling individuals about the legal tax implications?
A lawyer may delegate tasks but must SUPERVISE the delegated work carefully and must ultimately be responsible. A real estate broker may not draft the contract, but may fill in blanks. A tax advisor may prepare tax returns, but may not provide legal counseling.
Can a nonlawyer have an interest in the law firm?
No. A corporate officer or director who is a nonlawyer cannot own an interest in the law firm.
*** What are the limits on the name of your law firm? 3 restrictions
You cannot practice under 1. a TRADE NAME, 2. a name that is MISLEADING as to the identity of the lawyers practicing in the firm, or 3. names containing names of lawyers NOT practicing in the firm, unless such lawyers were formally associated therewith and there’s no conflict b/c lawyer at another firm.
Can a lawyer and nonlawyer form a partnership together which involves the practice of law?
No. Nor are they allowed to share office space in less they are physically separate.
May a law practice incorporate? Does this limit the lawyer’s liability?
Lawyers may incorporate, but the liability of the lawyer to the client may not be limited. Further, a nonlawyer may not have an interest in the legal corporation as a shareholder, officer, or director.
What is a legal services organization? Give examples. Does it face looser or tighter advertising restrictions relative to private law firms?
A legal services organization is, e.g., legal aid, public defenders, military legal assistance offices, and lawyer referral services. They provide aid to MEMBERS OF A SPECIFIC GROUP. Advertisements are permissible, and must conform to standard legal advertising restrictions.
**When will a manager, partner, or supervisory lawyer be responsible for another lawyer’s violation of the professional code of ethics? 2 situations
- The lawyer ORDERS OR RATIFIES the specific conduct, or
- The lawyer is a partner, manager, or has supervisory authority over the other lawyer, and KNOWS OF THE CONDUCT at the time when its consequences can be avoided or mitigated, but FAILS TO TAKE REASONABLE REMEDIAL ACTION.
**What is the acronym for the law applicable to professional responsibility questions?
RPC - RULES OF PROFESSIONAL CONDUCT
*When may a lawyer enter an agreement restricting his right to practice after termination of the relationship? 2 situations.
- Agreement concerning the benefits upon retirement (e.g., you can agree to forgo your retirement benefits if you come out of retirement); or
- Where the restriction in the agreement is part of a settlement of a controversy between private parties
*What are the 4 requirements for the sale of a law practice?
- Seller ceases private practice in the geographic region,
- The buyer is a lawyer or firm,
- Fees to clients don’t increase because of sale, AND
- Seller gives written notice to clients of sale and clients right to take their business elsewhere with their file.
**What is the difference between advertising and solicitation?
Advertising is an indication the public at large. Solicitation is individual contact with a layperson
Is attorney advertising protected by the First Amendment? When may the speech be totally prohibited?
Attorney advertising is protected by the First Amendment. It may be totally prohibited ON the IF FALSE or MISLEADING.
Attorney speech must be allowed under the First Amendment, but may be CONSTITUTIONALLY limited by regulations that meet the following constitutional test (3 parts):
- Serve a substantial government interest,
- Directly and materially advance that interest, and
- Are narrowly tailored to serve the substantial interest
***What is the basic rule regarding attorney communications that are advertisements? A lawyer is subject to discipline for any type of communication about the lawyer or his services that _____
A lawyer is subject to discipline for any type of communication about the lawyer or his services that is FALSE, DECEPTIVE, OR MISLEADING or that otherwise violates the RPC. This applies to ALL COMMUNICATIONS.
**The RPC prohibits communications that (do 5 things)
The RPC prohibits communications that:
1. Use of a nickname, moniker, motto, or trade name that IMPLIES THE ABILITY TO OBTAIN RESULTS,
2. Are IRRELEVANT to the selection of counsel,
3. Are made to RESEMBLE LEGAL DOCUMENTS,
4. Use, without disclosure, an ACTOR to portray the lawyer, a member of the firm, or a client, or depictions of FICTIONALIZED events or scenes, or
5 portray a JUDGE, FICTITIOUS LAW FIRM, or that include a FICTITIOUS NAME to refer to lawyers not associated together in a law firm.
What is the general rule to describe prohibited communications under the RPC? I.e., what is the unifying theme of prohibited commit communications?
Your communications CANNOT be false, deceptive, misleading, imply results, fictionalize anything or use actors without disclosure, use materials that look legally formal (falsely), or provide irrelevant content.
**What non-misleading statements can you include an advertisement? 4 things
True and non-misleading statements that:
- Are reasonably likely to create an expectation about results that are achievable,
- Compare the lawyer’s services with other lawyer’s services,
- Client testimonials or endorsements of closed matters, or
- Describe or characterize the quality of the lawyers services.
What notification is required that a communication is attorney advertising?
It must be labeled “ATTORNEY ADVERTISING” on the 1st page. On a website or email, they must appear on the homepage or in the subject line.
In the case of advertisements through radio, television, or print media, that is not required.
