The Regulation of Lawyers Flashcards
What are the institutions that regulate lawyers?
1) • Highest State Courts: adopt rules and enforce them
2) • State & Local Bar Associations: administer discipline
3)• Lawyer Disciplinary Agencies: investigate and prosecute for misconduct
4) • American Bar Association: Draft model rules
5)• American Law Institutes: Restatement of Law Governing Lawyers
6)• Federal and State Courts: sanction, rule in malpractice, and disqualify attorney
7) • Legislature: some rules through legislature
8) • Administrative Agencies: follow their rules that have civil/criminal penalties
9)• Prosecutors: discretion to file criminal case against attorneys
• Malpractice Insurers: adopt rules, have systems to evaluate, risk-loss
• Law Firms & Employers: make sure lawyers comply with rules plus additional company rules
• Clients: big clients have great bargaining power
What rule governs Bar Admission and Disciplinary Matters?
RULE 8.1:
An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:
(a) knowingly make a false statement of material fact; or
(b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.
What are the three areas of lawyer liability?
- Attorney discipline: lose license
- Civil liability: lose money, discipline can be admitted as evidence [in legal malpractice]
- Criminal liability: lose freedom
What rule governs Professional Misconduct?
RULE 8.4
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.
What rule governs reporting Professional Misconduct?
RULE 8.3 Elements:
- A lawyer
- Who knows (actual knowledge – which can be inferred from circumstances)
- That another lawyer
- Commits a substantial violation of the MRPC (calls fitness into question)
SHALL inform the appropriate professional authority (usually the bar)
What rules governs Responsibilities of Partners, Managers, And Supervisory Lawyers
RULE 5.1:
(a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.
(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.
(c) A lawyer shall be responsible for another lawyer’s violation of the Rules of Professional Conduct if:
(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
What rule governs Responsibilities Of A Subordinate Lawyer?
RULE 5.2:
(a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.
(b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.
What rule governs Responsibilities Regarding Non-lawyer Assistance?
RULE 5.3 - With respect to a non-lawyer employed or retained by or associated with a lawyer:
(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
What do rules 5.1, 5.2, & 5.3 govern?
- 1 – subject to discipline for other’s misconduct
- 2 – your own conduct
- 3 – nonlawyer employees
8.3
duty to report significant misconduct of any other lawyer
5.1, 5.2
duties imposed for the behavior of colleagues
Document disclosure – following orders is not a defense see 5.2(a)
Managing partners who allow lawyers to “find their own way” with regard to the rules subject to liability under
5.1 (a)
Associate supervises new hire gives no guidance subject to liability under…
[needs to make “reasonable efforts”] under 5.1 (b)
Managing Partner orders conduct liable under…
5.1 (c)(1)
Finds out associate stealing and reports. Liability?
no liability 5.1(c)(2)
