Regulatory Controls & Unauthorized Practice Flashcards
Advertising Rules
(1) def of advertising = communication w/ the public at large or a segment of the public
(2) gen rule = cannot be false (or omit material information) or misleading
(3) Procedural Requirements
- be labeled as advertising and if applicable, dramatization or impersonation
- must identify at least one atty responsible for content; and
- keep records of content and placement for years
What are the procedural requirements for advertising?
(1) be labeled as advertising and if applicable, dramatization or impersonation;
(2) must identify at least one atty responsible for content; and
(3) keep records of content and placement for years
Requirements for Regulating Truthful Advertising
Commercial speech doctrine = truthful, non-misleading speech can be regulated if
- gov asserts substantial interest
- regulation directly advances this interest; and
- narrowly tailored
Claims of Specialization
Atty cannot advertise claims of specialization unless the atty is a certified specialist
ABA Rules = allows specialist certification by organizations approved to certify attys but the atty must identify the organization in communications
CA Rules = the CA Board of Legal Specialization requires:
(1) education;
(2) experience;
(3) examination; and
(4) evaluation
CA Advertising Presumptions
(1) Guarantees, warranties, or prediction of results = IMPROPER
• testimonials/endorsements = express disclaimer required - can be included w/ an express disclaimer that the testimonials/endorsements are not guarantees, warranties, or predictions
(2) At hospitals = PRESUMED MISLEADING
Solicitation Rules
One category of inherently deceptive speech = live contact by lawyer w/ a prospective client for profit. Therefore, state bar assns can constitutionally regulate this conduct
(1) definition of solicitation = individualized contact w/ lay person
(2) gen rule = an atty must not seek professional employment for profit by initiating a live/telephone contact w/ a prospective client w/ whom the atty has no preexisting professional, personal, or family relationship. If pro bono, solicitation by the atty is okay
- live or telephone contact
• ABA Rules = extends to real time electronic contact (i.e. emails)
• CA Rules = read narrowly to include only live or telephone contacts - agents - an atty’s agents are prohibited from doing anything the atty is prohibited from doing. a lawyer cannot avoid the rules by having someone else do the act
CA Solicitation Presumptions
CA presumes that the following communications violate the CA Rules of Professional Conduct
- at scene of accident
- on route to hospital or other medical facility
- to prospective clients lacking the physical/medical capacity for reasonable judgment
What constitutes the “Practice of Law”?
- involves legal knowledge and skill
- advice on binding legal rights - only an atty can give legal advice
- activities traditionally performed by lawyers
(1) draft legal documents
exceptions: pro se documents; fill in the blank documents
(2) appear in court to represent or assist
exceptions: pro se representation (corporations must be represented by an atty); students
Unauthorized Practice of Law by Lawyers
(1) Not admitted for practice in jxn
- gen lawyer is prohibited from practice law in jxn where her license has been suspended/revoked, or where she has not been admitted to practice
- exceptions:
• pro hac vice status
• temporary practice arising out of authorized practice
(2) Assisting nonlawyer in unauthorized practice of law
- exception: pro se representation
(3) Law clerks & paralegal = may delegate BUT must supervise and ultimately responsible for the work
Business with a Nonlawyer
(1) Duty not to enter partnership to practice law w/ a nonlawyer
exception: “separate and apart” business
reqs: for this
- advise and allow other party to seek legal counsel
- disclose and explain
- fair terms
(2) Reciprocal referral relationship w/ non-lawyer = allowed if
- non-exclusive; and
- explain arrangement to client when referred
Multi-jurisdictional Practice
ABA Rules = allow temporary practice by an out-of-state atty in good standing if
- pro hac vice status
- temporary practice arising out of authorized practice
CA Rules
- litigators & transactional attys = same as ABA Rules
- out-of-state legal services attys - CA limits practice of out-of-state legal services attys to 3 years w/o passing the CA bar exam and MPRE and has enacted more restrictive rules governing their temporary temporary practice
(1) must work under close supervision of CA atty;
(2) register w/ CA state bar;
(3) pay annual dues; and
(4) satisfy continuing legal education requirements
Reporting Misconduct
ABA Rules = must report any conduct of other attys/judges that raises a substantial question as to that person’s honesty, trustworthiness, or fitness as a lawyer/judge
CA Rules = must report THEMSELVES if
- 3 malpractice cases w/in 12 months
- charged w/ felony
- convicted of other serious crimes
- disciplined for ethical violations in another jxns
- > $1k sanctions - discovery sanctions not included; or
- civil liability for fraud
Subordinate Lawyers
Under the control/authority of someone else who orders you to take an action that violates the ethical rules
(1) clear violation = subject to discipline
(2) debatable violation = not subject to discipline
- the supervising atty who authorized the action is solely responsible b/c lawyers may follow instructions from superiors on debatable ethics questions as long as the conduct instructed is reasonable
Responsibilities of Partners, Managers & Supervisory Lawyers
- duty to supervise subordinates
- responsible for ethical violations of subordinates if knew of unethical conduct and fails to take reasonable remedial action
