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Flashcards in Professional Responsibility Deck (276)
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What type of requirements does the State impose upon candidates for legal licensure?

States impose educational, knowledge, and character requirements on applicants for admission to the practice of law.


What is the educational requirement to join the bar?

Georgia requires graduation from an ABA-accredited law school for admission to practice. Ga. R. Gov’g Admis. Prac. Law B § 4(b)(1).


What is the examination require for bar membership?

Applicants must also pass a written exam. Ga. R. Gov’g Admis. Prac. Law B §§6, 8, 14. The examination requirement may be waived if a person is a member in good standing of a bar association in another state that has reciprocity with Georgia and if he is otherwise qualified. The requirement that a person is qualified includes that for at least five of the seven years immediately before applying for admission to the bar, the applicant was practicing law, teaching law, or was a judge. Ga. R. Gov’g Admis. Prac. Law C §§ 2, 3.


Describe pro hac vice?

A lawyer licensed to practice in one state who wants to represent a client before a court in another state may file a motion for admission to practice pro hac vice (“for this turn only”). Granting a right to appear pro hac vice is within the discretion of the jurisdiction and the presiding judge. See Ga. Unif. Super. Ct.4.4.


What is "prohibited behavior" for bar exam application process?

i) Knowingly making a false statement of material fact in connection with the application; ii) Failing to disclose a fact necessary to correct a misapprehension known to have arisen in the matter; or iii) Failing to respond to a lawful demand by an admissions authority in connection with the application (unless the fact is protected by the rules governing confidential communications). RPC 8.1.


May an applicant refuse to provide an unprivileged answer?

An applicant may refuse to provide unprivileged answers to questions having substantial relevance to qualifications to uphold the law. This is as a result of the applicant’s Fifth Amendment privilege. If an applicant is not answering a question as a result of invocation of this privilege, then the RPC requires that he include this information in his answer. RPC 8.1, cmt. 2.


What effect can violating a rule of professional conduct have for an applicant?

Violation of any of these provisions may prevent admission. A previously admitted applicant may be subject to discipline for violating any provision.


What is the "unauthorized practice of law"?

A lawyer is subject to discipline for practicing in a jurisdiction in which he is not admitted. Lawyers are also obligated to ensure that only authorized persons engage in the practice of law and are subject to discipline for assisting non-lawyers in the unlicensed practice of law. RPC 5.5.


What are the exception from the rule prohibiting the unauthorized practice of law?

1) Pro hac vice 2) In association with a local lawyer


What are ground for misconduct?

(1) Violate or attempt to violate any of the RPC, knowingly assist or induce another to do so, or do so through the acts of another; (2) Be convicted of a felony; (3) Be convicted of a misdemeanor involving moral turpitude when the underlying conduct relates to the lawyer’s fitness to practice law; (4) Engage in professional conduct involving dishonesty, fraud, deceit, or misrepresentation; (5) Fail to pay any final judgment rendered against the lawyer for money collected by him as a lawyer within 10 days after the time appointed in the order or judgment; (6) State or imply an ability to influence improperly a government agency or official; state an ability to achieve results by means that violate the RPC or other law; achieve results by means that violate the RPC or other law; (7) Knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; (8) Commit a criminal act that relates to the lawyer’s fitness to practice law or reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer, when the lawyer has admitted the act in court. RPC 8.4.


When is a lawyer responsible for the misconduct committed by others?

A lawyer is subject to discipline for misconduct committed by another lawyer if the lawyer: (1) Orders the misconduct; (2) Ratifies the misconduct with knowledge of the specific conduct; or (3) As a partner in a law firm, a manager, or a lawyer with direct supervisory authority over another lawyer, knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. RPC 5.1(c).


Who is a "partner"?

A “partner” is a member of a partnership, a shareholder in a law firm organized as a professional corporation, or a member of an association authorized to practice law. RPC 1.0(l). A lawyer who has supervisory authority in a corporate enterprise or government agency is also considered a partner for the purposes of RPC 5.1.


What must a law partner do to ensure their firm is conforming to the RPC?

Partners in a law firm must make reasonable efforts to ensure that the firm has measures in place that give reasonable assurance that all lawyers in the firm conform to the RPC and that the conduct of all non-lawyers working for the firm conforms to the RPC. RPC 5.1(a). The definition of “reasonable measures” depends on the size and kind of firm. RPC 5.1, cmt. 3.


When are lawyer's punished for the conduct of non-lawyers?

Partners may be subject to discipline for ratifying conduct by a non-lawyer if the conduct would have violated the disciplinary rules if it had been engaged in by a lawyer. RPC 5.3(c).


What responsibilities are associated with direct supervision?

A lawyer with direct supervisory authority over another lawyer or non-lawyer must make reasonable efforts to ensure that the supervised person’s conduct conforms to the RPC. RPC 5.1(b) and 5.3(c).


What responsibilities are associated with being a subordinate lawyer?

A subordinate lawyer must conform to the RPC even if acting under the direction of a supervising lawyer. The subordinate lawyer does not violate the rules, however, if he acts in accordance with the supervising lawyer’s reasonable resolution of an arguable question of professional duty. RPC 5.2.


Can one state bar discipline a lawyer for misconduct conducted in another state?

A lawyer is subject to discipline for misconduct in any state or jurisdiction in which the lawyer is admitted to practice, even if the misconduct occurred outside of that state or jurisdiction. RPC 8.5.


Must a lawyer report misconduct by another lawyer?

A lawyer must report misconduct by another lawyer to the appropriate professional authority (e.g., disciplinary agency) when the lawyer has actual knowledge of the misconduct. The duty to report is limited to matters that raise a substantial question as to the lawyer’s honesty or professional fitness. RPC 8.3. In Georgia, there is no disciplinary penalty for a violation of this rule.


What conduct must a lawyer self-report?

Members of the State Bar of Georgia must notify the bar within 60 days of: (1) Being admitted to practice law in another jurisdiction, with the dates of admission; (2) Being convicted of any felony or a misdemeanor involving moral turpitude when the underlying conduct relates to the lawyer’s fitness to practice law; or (3) Being disciplined by any jurisdiction other than the Supreme Court of Georgia. RPC 9.1(a).


What is a "law firm"?

A “law firm” is a lawyer or lawyers in a partnership, professional corporation, sole proprietorship, or other association authorized to practice law, or lawyers employed in a legal services organization or the legal department of a corporation or other organization. RPC 1.0(e).


May partners "fee splint" within a firm?

By agreement, attorneys in the same firm may legitimately share or split fees earned by any of them. RPC 1.5.


How does the RPC limit partnerships?

A lawyer is not permitted to form a partnership with a non-lawyer if any of the activities of the partnership consist of the practice of law. RPC 5.4(b).


May lawyer's practice as a professional corporation?

A lawyer is not permitted to practice with or in the form of a professional corporation or association authorized to practice law for a profit if: (1) A non-lawyer owns any interest in the firm (except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during the administration of his estate); (2) A non-lawyer is a corporate director or officer thereof; or (3) A non-lawyer has the right to direct or control the professional judgment of a lawyer. RPC 5.4(d).


What are "law-related services"?

Law-related services include providing title insurance, financial planning, accounting, trust services, real-estate counseling, legislative lobbying, economic analysis, social work, psychological counseling, tax preparation, and patent, medical, or environmental consulting.


May lawyers provide "law-related services"?

Lawyers may provide “law-related services,” defined by the RPC as services that might reasonably be performed in conjunction with and related to the provision of legal services and not prohibited as the unauthorized practice of law when provided by a non-lawyer. RPC 5.7(b).


Are lawyers under the RPC when they provide law related services?

Under certain circumstances, the lawyer providing law-related services will be subject to the RPC even though a non-lawyer performing such services would not. The maximum penalty for violating this rule is a public reprimand. RPC 5.7.


Are "law-related services" distinct from legal services?

A lawyer will be subject to the RPC with respect to the provision of law-related services if the lawyer provides services in circumstances that are not distinct from the lawyer’s provision of legal services to clients. RPC5.7(a)(1).


What actions must a lawyer take to prevent the RPC from applying to law-related services?

A lawyer will be subject to the RPC for provision of law-related services by an entity controlled by the lawyer individually or with others if the lawyer fails to take reasonable measures to ensure that the client knows that the services are not legal services and that the protections of the lawyer-client relationship do not apply. RPC 5.7(a)(2).


Who must show what in order to prove "reasonable measures" were taken to ensure client understood law-related services are not legal services?

The lawyer has the burden to show that reasonable measures were taken under the circumstances to communicate the desired understanding. Thus, a sophisticated user of law?related services, such as a publicly held corporation, may require less explanation than someone unfamiliar with distinctions between legal services and law-related services.


Under what conditions may a lawyer or law firm sell or purchase a law practice?

(1) Written notice is given to all current clients regarding: - The proposed sale; - The terms of any proposed change in the fee arrangement; - The client’s right to retain other counsel or to take possession of the file; and - The fact that the client’s consent to the new representation will be presumed if the client does not take any action or does not otherwise object within 90 days of receipt of the notice; and (2) The entire practice is sold to another lawyer or law firm. RPC 1.17.