Reporting Misconduct; Duties of Supervising and Junior Lawyers - June 6 Flashcards
Under what circumstances is a lawyer required to report misconduct by another lawyer, or by a judge, to the appropriate disciplinary authority? (Q)
A lawyer is required to report misconduct by another lawyer, or by a judge, to the appropriate disciplinary authority if:
the lawyer knows that another lawyer has violated the professional rules in a way that raises a substantial question about the lawyer’s honesty, trustworthiness, or fitness to practice law; or
the lawyer knows that a judge has violated the rules of judicial conduct in a way that raises a substantial question about the judge’s fitness for office.
However, this rule does not apply to information that is protected by lawyer-client confidentiality. Nor does this rule apply to information learned while participating in a lawyers’ assistance program, which is an official program to help lawyers address substance abuse, mental-health issues, and other personal difficulties.
Must a lawyer report any and all violations of the rules of professional conduct that the lawyer has observed another lawyer or a judge commit? (Q)
No. A lawyer is not required to report any and all violations of the rules of professional conduct that the lawyer has observed another lawyer or a judge commit. Rather, the reporting requirement is limited to the most serious offenses, i.e., conduct that raises a substantial question about a lawyer’s fitness to practice law or a judge’s fitness for office. Trivial violations do not satisfy these criteria.
A junior lawyer discovered that his supervising lawyer had been going to a local bar each night, getting drunk, and talking loudly about confidential aspects of a client’s case. The supervising lawyer’s conduct violated the jurisdiction’s rules of professional conduct regarding confidentiality of client matters.
Must the junior lawyer report his supervising lawyer to the appropriate professional authority? (Q)
Yes. The junior lawyer must report his supervising lawyer to the appropriate authority. If a lawyer knows that another lawyer has violated the rules of professional conduct in a way that raises questions about the misbehaving lawyer’s honesty, trustworthiness, or general fitness as a lawyer, then the lawyer must report the other lawyer’s conduct to the relevant authority, which is usually the state bar.
Here, the junior lawyer learned that the supervising lawyer was getting drunk and sharing confidential information about a client’s case in violation of the rules of professional conduct. Confidentiality is fundamental to the lawyer-client relationship, and drunken public conversation about a client’s confidential legal matters is behavior that raises questions about the lawyer’s trustworthiness and fitness as a lawyer. Thus, the junior lawyer must report his supervising lawyer.
A judge was enrolled in a bar-approved lawyers’ assistance program meant to assist judges and lawyers in addressing difficult personal circumstances. One night at a group meeting, the judge confessed that in the past he would drink brandy to get himself through particularly busy hearing days. The judge’s drinking was a violation of the applicable rules of judicial conduct that raised a serious question about the judge’s fitness for office. Another attendee at the group meeting, a lawyer, heard this information.
Is the lawyer required to report the judge’s misconduct? (Q)
No. The lawyer is not required to report the judge’s misconduct. Generally, a lawyer is required to report any violation of the applicable rules of judicial conduct that raises a serious question about a judge’s fitness for office. However, there is an exception to this mandatory reporting requirement if the information is learned while participating in an approved lawyers’ assistance program.
Here, the lawyer would ordinarily be required to report the judge’s misconduct because it raises a serious question about the judge’s fitness for office. However, the judge admitted his misconduct while participating in an approved assistance program with the lawyer. Thus, the lawyer is not required to report the judge’s misconduct.
In general, may someone who is not a lawyer engage in the practice of law? (Q)
No. In general, someone who is not a lawyer may not engage in the practice of law. To protect the public, the practice of law in a jurisdiction generally is limited to licensed attorneys who are admitted to practice in a particular jurisdiction.
In general, to practice law in a jurisdiction, must a lawyer be explicitly authorized to practice in that jurisdiction? (Q)
Yes. In order to practice law in a jurisdiction, a lawyer must be explicitly authorized to practice in that jurisdiction. Authorization to practice is typically acquired:
by joining a state bar,
by special court order, or
by a rule or other grant of permission allowing temporary practice in a jurisdiction in which the lawyer is not formally admitted.
In order to practice, the lawyer must also be in good standing (e.g., a lawyer may not practice during a period of disciplinary suspension).
Under what circumstances does a lawyer engage in the unauthorized practice of law? (Q)
A lawyer engages in the unauthorized practice of law when the lawyer:
practices law in a jurisdiction without adhering to that jurisdiction’s regulation of the legal profession or
helps another lawyer or a non-lawyer to violate the jurisdiction’s requirements regarding the practice of law.
Are some activities that require little or no legal judgment considered to fall outside the definition of the practice of law, even though those activities may be related to legal proceedings? (Q)
Yes. Some courts hold that a person does not practice law by carrying out activities that require little or no legal judgment, even if those activities are closely connected to legal proceedings. Some of the more prominent examples of these activities include filling out tax forms, filling out real estate closing forms, and adjusting insurance claims.
In general, the practice of law involves the application of legal principles and judgment regarding another person’s circumstances, including giving legal advice, appearing before a court, negotiating settlements, or drafting legal documents. The more routine a task is (e.g., filling out standard forms), the more likely the courts are to find that it does not constitute the practice of law.
Do the rules against the unauthorized practice of law generally prohibit representing oneself, filling out standardized forms, or acting as a paraprofessional under the direct supervision of a licensed lawyer? (Q)
No. It generally is not considered the unauthorized practice of law for someone to:
handle his own legal affairs;
complete standardized forms by filling in blanks on documents such as tax returns or deeds; or
work as a paraprofessional, e.g., as a legal secretary or paralegal, under the direct supervision of a licensed lawyer.
A lawyer employed a paralegal. The paralegal sometimes drafted various legal documents for the lawyer. The lawyer always supervised the paralegal’s work and reviewed the documents before using them.
By drafting the legal documents, has the paralegal engaged in the unauthorized practice of law? (Q)
No. The paralegal has not engaged in the unauthorized practice of law. In general, someone who is not a lawyer may not engage in the practice of law. A lawyer may use the services of paralegals and other paraprofessionals to assist the lawyer in the lawyer’s practice of law. If the lawyer appropriately supervises and takes responsibility for the work of a paraprofessional, the paraprofessional’s work will not constitute the unauthorized practice of law by the paraprofessional.
Here, the lawyer supervised the paralegal’s work and reviewed all of the legal documents drafted by the paralegal before using them. The solo practitioner therefore supervised and took final responsibility for the paralegal’s work. Accordingly, the paralegal has not engaged in the unauthorized practice of law by drafting the documents.
If a lawyer is not admitted to practice in a jurisdiction, may the lawyer establish an office in that jurisdiction for the practice of law or hold himself out to the public as a lawyer admitted to practice law in that jurisdiction? (Q)
No. A lawyer who is not admitted to practice in a jurisdiction may not establish an office or other systematic or continuous presence in that jurisdiction for the practice of law. Nor may that lawyer hold himself out to the public as a lawyer admitted to practice law in that jurisdiction.
What is an admission to practice law pro hac vice? (Q)
An admission pro hac vice is a court’s authorization of an attorney who is not licensed in that state to appear before the court for purposes of a single case or other proceeding. To appear pro hac vice, an out-of-state lawyer must:
be in good standing in all jurisdictions in which the lawyer is admitted to practice,
have a reasonable connection to the case for which pro hac vice admission is sought, and
request the court’s permission to appear in the case.
A court has discretion whether to admit the lawyer pro hac vice. An admission pro hac vice does not extend to any matters other than the proceeding for which pro hac vice admission is granted. An admission pro hac vice does not constitute the unauthorized practice of law, because the attorney has received special permission from the court to practice before it.
May a lawyer who is in good standing in a state in which he is admitted to practice sometimes practice law temporarily in another state in which he is not admitted to practice? (Q)
Yes. A lawyer who is in good standing in a state in which he is admitted to practice, and who is not disbarred or suspended from practice in any jurisdiction, may practice temporarily in another state if:
he associates with a lawyer who is admitted to practice in that state and who actively participates in the matter;
his services are reasonably related to a matter pending before a tribunal in any state and he, or a person he is assisting, is authorized or reasonably expects to be authorized to appear in the matter;
his services are reasonably related to an alternative dispute resolution proceeding in any state, are reasonably related to his practice in a state in which he is admitted to practice, and do not require pro hac vice admission; or
his services are otherwise reasonably related to his practice in a state in which he is admitted.
Are there circumstances in which a lawyer may practice law outside of a state in which she has been admitted to practice, even if she does so on more than a temporary basis?
Yes. In limited circumstances, a lawyer who is in good standing in a state in which she is admitted to practice, and who is not disbarred or suspended from practice in any jurisdiction, may practice law outside of that state, even on more than a temporary basis. Under this rule the lawyer may provide legal services through an office or other systematic and continuous presence in the state:
to her employer, if those services do not require pro hac vice admission (e.g., providing legal advice to a corporation as in-house counsel) or
as allowed by federal or other law.
A lawyer was admitted to practice in State A. The lawyer received a call from his law school classmate, who was a lawyer admitted to practice in State B. The State B lawyer said she had a client who needed to file a complaint against someone in State A. The State B lawyer asked the State A lawyer if she could put the State A lawyer’s name on the complaint, so the State B lawyer could file it in State A. The State B lawyer assured the State A lawyer that he would not need to do any work on the case.
May the State A lawyer allow the State B lawyer to put the State A lawyer’s name on the complaint on these terms? (Q)
No. The State A lawyer may not allow the State B lawyer to put the State A lawyer’s name on the complaint on these terms. One ethical and permissible way for a lawyer to practice temporarily in a jurisdiction where she is not admitted is to associate with another lawyer who is admitted in that jurisdiction. However, the admitted lawyer must actively participate in the matter and share responsibility for representing the client.
Here, the State B lawyer was not admitted in State A but wanted to associate with the State A lawyer for a matter in State A. Under the terms described by the State B lawyer, the State A lawyer would have no involvement in the matter beyond putting his name on the complaint. However, for a proper association, the State A lawyer must actively participate in the matter. Thus, the State A lawyer may not allow the State B lawyer to put his name on the complaint.
What is the definition of a law firm under the MRPC? (Q)
The MRPC define a law firm as:
one or more lawyers in a law partnership, a sole proprietorship, a professional corporation, or some other association authorized to practice law;
lawyers working for a legal-services entity; or
lawyers employed in-house by a corporation or other organization.
In general, may a lawyer or law firm share legal fees with a nonlawyer? (Q)
No. In general, and with limited exceptions, a lawyer or law firm may not share legal fees with a nonlawyer. The main purpose of this rule is to prevent a lawyer’s counsel and judgment from being influenced by nonlawyers.
Are there any circumstances in which a lawyer or law firm may share legal fees with nonlawyers? (Q)
Yes. Although the general rule prohibits sharing legal fees with nonlawyers, a lawyer or law firm may share legal fees with nonlawyers in some circumstances. Specifically, a lawyer or law firm may:
enter an agreement with the lawyer’s firm, partner, or associate to pay money to the lawyer’s estate or to specified persons over a reasonable period of time after the lawyer’s death;
upon purchasing a deceased, disabled, or disappeared lawyer’s practice, pay the purchase price to the lawyer’s estate or representative;
include non-lawyer employees in a compensation or retirement plan, even if the plan is based on a profit-sharing arrangement; and
share court-awarded fees with a non-profit organization that employed or retained the lawyer in the matter.
A plaintiff suffered serious injury in a car accident caused by a defendant’s negligence. The plaintiff’s close friend, who was not a lawyer, recommended a lawyer to the plaintiff. The plaintiff hired the lawyer, sued the defendant, and prevailed. The court awarded the lawyer $30,000 in legal fees. Soon after, the lawyer mailed the plaintiff’s friend a check for $1,000. The check’s memo line included the word “Referral.” The lawyer sent a note with the check thanking the friend for the referral and indicating that the $1,000 was a cut of the lawyer’s fees as a token of gratitude. Later, a disciplinary action was initiated against the lawyer alleging that the lawyer had impermissibly shared legal fees with a nonlawyer. In defense, the lawyer argued that he was permitted to share his legal fees with the plaintiff’s friend.
Is the lawyer correct?
No. The lawyer is not correct that he was permitted to share his legal fees with the plaintiff’s friend. As a general rule, lawyers or law firms must not share legal fees with nonlawyers. An exception to this rule permits lawyers to share court-awarded legal fees with a nonprofit organization that employed or retained the lawyer, or recommended employing the lawyer, in the matter.
Here, the lawyer gave the plaintiff’s friend, a nonlawyer, a portion of his court-ordered legal fees as a token of gratitude for the friend’s recommendation that the plaintiff hire the lawyer. However, because the plaintiff’s friend is a natural person, and not a nonprofit organization, the exception for sharing court-ordered legal fees with nonlawyers is inapplicable. Thus, the lawyer was not permitted to share his legal fees with the plaintiff’s friend, and the lawyer’s argument to the contrary is incorrect.
May a lawyer enter into a partnership with a nonlawyer if the business of the partnership will include the practice of law? (Q)
No. A lawyer may not enter into a partnership with a nonlawyer if the business of the partnership will include the practice of law. If the business of the partnership will not include the practice of law, then this rule does not apply.
