Regulation of the Legal Profession

Regulation of the Legal Profession

• A lawyer gets regulation form each state, where they are admitted to practice, regardless of where they practice, choice of law rules apply to resolve conflicts
• The highest state court adopts ethical rules and enforces them through a disciplinary commission or bar association

Ethical Rules

• Each state adopted a version of the ABA Model Rules of Professional Conduct or ABA Model Code of Judicial Conduct
• Case law may limit a lawyer's ability to enforce a fee contract after being fired
• State-specific rules of court may govern a lawyer’s obligation to represent an indigent client at the court’s request

Bar Associations

• Administers the state’s bar examination
• Provides continuing education programs for practicing lawyers
• Assists state courts in regulating and imposing professional discipline
• Statutes some aspects of the practice of law, such as securities laws (Sarbanes-Oxley) and attorney-client privilege (state laws define scope of evidence rules)
• Lawyers who practice in federal court or agencies are constrained by federal statutes, federal case law, and particular court or agency rules
• Federal courts have their own bars, and lawyers have to become members
• Government attorneys are subject to state laws and rules governing attorneys in each state where the attorney engages in those duties, according to 28 U.S.C. §530B(a)
• Applies only to ethical conduct and professional discipline and not to rules of evidence, procedure, or substantive law

Admission Requirements

• The Supreme Court defers requirements to state governance
• Requirements to be rationally related to the practice of law, with graduation from an accredited law school as an example.
• Applicants must take an oath to uphold the constitution
• Mere membership in the communist party is insufficient where there is no showing that the applicant engaged in or advocated actions to overthrow the government by force or violence
• Good moral character (C&F test, burden on applicant) has to result in rejection, misconduct must involve moral turpitude
• All aspects of an applicant’s past conduct that reflect on honesty and integrity are relevant where the committee may consider charges of which the applicant was acquitted and any litigation to which the applicant was a party

Personality Traits

• Applicants are sometimes denied because of personality traits like being overly sensitive, rigid, excessively self-important, tendency to make false accusations, and ascribe evil motives
• Citizenship and residency are not required

Duty to Cooperate

• Applicants and references have a duty to cooperate with character investigations Applicants must:
• Avoid knowingly false statements of material fact
• Respond to all information requests
• Disclose facts needed to correct misapprehensions
• Respond to lawful demands for information from an admissions authority
• Cooperate in reasonable investigations by the state bar make their disclosures relevant to his fitness to practice law.
• Correct any misapprehension
• Not disclose confidential information, including attorney-client privilege
  • For instance, informing an attorney who was hired to assist with the C&F process about a previous crime
• Applicants have the right to due process, with the right to know the charges filed ,to explain away derogatory information, and to confront critics

Professional Misconduct

• Professional misconduct is tied to moral turpitude Examples of misconduct:
• Not limited to adolescent misbehavior and civil disobedience
• Violating rules of professional conduct, like violating, attempting to violate, helping someone violate, or using someone else to violate
• Committing crimes relevant to honesty, trustworthiness, and fitness
• Concealment of past conduct in response to inquiry by the admissions committee indicates a lack of moral character (even if underlying conduct does not constitute moral turpitude)
• Morality, including adultery
• One-time possession of marijuana or solicitation of prostitution are NOT, however long patterns may be different
• Committing acts of dishonesty, fraud (even taxes, misusing expense accounts), deceit, or misrepresentation regardless of to law license
• Red flags include forging, bribery, theft, perjury, robbery, extortion, plagiarism, and cheating on the bar exam
• Misrepresentation of the quality of materials used in real estate can also be a red flag
• Crimes involving violence like murder, rape, and mayhem
• Conduct prejudicial to the administration of justice
• Offenses are usually dealt with in litigation, including falsifying evidence, improper delaying tactics, and frivolous claims
• Stating or implying an ability to improperly influence officials
• Knowingly assisting judge in violation of judicial code

No Discrimination

• No harassment or discrimination, based on race, sex, religion, national origin, ethnicity, age, sexual orientation, gender identity, marital status, or socioeconomic status, is permitted in conduct related to the practice of law
• Including representing clients, interacting with witnesses, operating and managing a law practice
• Lawyers can still discriminate against people during their own time Permitted actions:
• Accepting, declining, or withdrawing from a case
• Providing legitimate advice or advocacy otherwise consistent with the Rules of Professional Conduct
• Promoting diversity or inclusion

Duty to Report

• Lawyers and judges are required to report misconduct, but you may report suspected misconduct
• Failing to report known conduct may result in discipline for violating disclosure rules The following violations always warrant mandatory reporting:
• Violations raising substantial questions about a lawyer’s honesty, trustworthiness, or fitness to practice
• Cheating on taxes (even if conduct in personal affairs), dipping into client funds, or destroying evidence require mandatory reporting
• However, minor conflicts like advertising rules, breaches of a partnership rule against nonlawyers, or improper nonlawyer assistant usage do not necessitate it Reporting is impermissible if it violates:
• Attorney-client confidentiality
• Extends to advice to an attorney in their role as a lawyer, and not as a friend
• An attorney can only refuse to respond to a question, as lying about the misconduct will result in discipline
• Learning about a violation while participating in an approved lawyer assistance program -This is not extend to an attorney’s substance abuse problem which the lawyer is aware outside the assistance program
• Any state where a lawyer is (1) admitted, OR (2) provided or offered services has disciplinary authority Process of lodging a complaint:
• The complaint proceeds through screening, possibly dismissed without ever involving the lawyer, but if meritorious, the lawyer will be asked to respond to the charges, further leading to a hearing

Guarantees of due process include:

• Right to counsel
• Right to proper notice
• Right to introduce evidence
• Right to cross-examine adverse witnesses

Limitations on hearings:

• Hearings have to be limited to the charges made in the original complaint
• For prosecuting charges, there must be proof of the charge beyond a preponderance of the evidence, but less beyond a reasonable doubt
• Sanctions include private or public reprimand or censure, license suspension for a period of time, disbarment involving permanent revocation
• Choice of Law states that each state involved can discipline a lawyer, the particular conduct is governed by the rules of the jurisdiction in which it occurred
• Ethics rules of the sitting tribunal applies if the conduct was linked to a proceeding pending before a tribunal
• Lawyers will not be subject to discipline should their conduct is proper in the jurisdiction which is reasonably believed ,which agreement can be entered between lawyer and client to set jdx in advance

Unauthorized Practice of Law

• The imposition of professional discipline imposed by one state is not binding on another where practice requires is subject either to discipline for unauthorized or assisting in it, to be exacted by either
• Disciplinary action can come from either or both jurisdictions for anyone who represents that they are admitted in that jurisdiction and/or who establishes place of practice of law
• Considerations are to be determined by what involves legal knowledge/skill to average person and, whether the advice being given concerns binding rights/remedies and whether activity traditionally done by lawyers. NOT filling out forms or answering Qs etc
• If a state does not have an active law where the lawyer is licensed in another temporarily, they must must have an associate within the JDX to admit pro hac vice where is reasonably expected even before submitting and may be subject to limited practice
• To have services reasonably related to lawyer's home state/jdx the matter has to reasonably be from there as matter of convenience as if contract arbitrations were to be done outside state then, it relates to matter. For Permanent, salaried employees can provide guidance internally, outside not under lawyer's direction if they are to get admitted pro hac vice

Delegating tasks to assistants

• Lawyers must supervise work delegated to assistants
• Careful management is key
• Paralegals have capacity to write routine letters on law-firm letterhead making info requests
• Initial steps for client processing is key
• When in non-negligent oversight of an attorney, properly hired support/employees can perform tasks legally/ethically such as insurance adjusters

Responsibilities

• Lawyers need to guide in ethical matters for all persons that they supervise
• Duty is to respect nonlawyer conduct such that, reasonable attempts must occur to ensure there is no conduct that violates duty of their profession
• Lawyers have supervisory duties under partners that manage business. Must supervise to ensure their own conduct as well

Regarding partners/supervisors have same Duty to subordinate lawyer:

• To not allow a violation of conduct. If such a incident occurs with subordinate attornies it must, to proper lengths, attempt to reconcile violation
• Subordinate/Partner cannot escape sanctions so long as they have reasonable understanding as what is happening was an arguable matter of business judgement

Professional Independence

• Lawyer should not share fee even with temporary ones on work done/case
• Court awarded sharing permitted to non-profits Should entities do ANY part of the work it becomes conflict of interest:
• Tax with account manager/Divorce with couples-therapist, unless in separate entities

Regarding interference with Legal judgement

• No payment interference with recommendation or job duty

Restrictions on right to practice/Sell-Out

• Employment agreement preventing further practice once employed/separated from business are invalid, other than pertaining to retirement benefits
• Must make clear to all that can no longer practice with X firm but can continue employed in civil capacities
• If entity being sold operates under lawyer then entity must make client aware on services
• Cannot use services under entities to get client relationship by giving special treatment/privilege , must sign.
• Law business, client entitled to written disclosure about transaction. Advise of lawyer to have individual client to ensure it is right before signing off