Regulation of Legal Profession Flashcards
1. Powers of courts and other bodies to regulate lawyers 2. Admission to the profession 3. Regulation after admission—lawyer discipline 4. Mandatory and permissive reporting of professional misconduct 5. Unauthorized practice of law—by lawyers and nonlawyers 6. Multijurisdictional practice 7. Fee division with a nonlawyer 8. Law firm and other forms of practice 9. Responsibilities of partners, managers, supervisory and subordinate lawyers 10. Restrictions on right to practice
Can states require law license applicants to disclose more than in a typical job application? (ex. mental illness history)
Yes, the application can contain questions that would likely be unconstitutional in standard job applications. (ex. drug abuse status)
What are the consequences of making a material false statement on a bar admission application?
The applicant may be denied admission to the bar. Or if admitted, the lawyer may have their license suspended or revoked.
⭐️ Moral of the story: Don’t lie!
Under Rule 8.1, what is a bar applicant required to do if they made a prior misstatement on their application?
Correct any prior misstatement and provide affirmative clarification of any misunderstanding to the necessary parties.
Can a bar applicant invoke the 5th to avoid disclosing confidential information on a bar application?
Yes, but they must claim the privilege openly. For example, if the application asks, “Have you ever been convicted of a felony?,” the applicant must state they are invoking the 5th. They cannot answer “no” to avoid the question.
Under Rule 8.4, what is considered professional misconduct?
It is professional misconduct when a lawyer:
- Violates or attempts to violate the Rules–or knowingly assists or induces another to do so;
- Commits a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
- Engages in conduct involving dishonesty, fraud, deceit or misrepresentation;
- Engages in conduct that is prejudicial to the administration of justice;
- States or implies an ability to improperly influence a government agency or official or to achieve results by violating the Rules or other law;
- Knowingly assists a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; or
- Engages in conduct that the lawyer knows or reasonably should know is harassment or discrimination in the course of their legal practice
Is negligent misrepresentation or negligent failure to inform considered professional misconduct under Rule 8.4?
Are restrictions on the right to practice valid? (ex. non-competes)
No, a lawyer cannot participate or offer an agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement.
Is an agreement that restricts a lawyer’s right to practice as part of a client settlement valid?
No, lawyers are prohibited from agreeing not to represent other persons in a client settlement.
Is a law firm responsible for ensuring its lawyers conform to the rules?
Lawyers who have managerial authority (partners, shareholders, etc.) must make reasonable efforts to establish internal policies to ensure that all lawyers in the firm will conform to the Model Rules.
What are examples of reasonable policies and procedures that a law firm could enact to ensure conformity with the Model Rules?
It depends on the firm’s structure and nature of practice. It can include measures:
- Designed to detect and resolve conflicts of interest;
- That identify dates by which actions must be taken in pending matters;
- Account for client funds and property; and
- Ensure that inexperienced lawyers are properly supervised
When is a lawyer responsible for another lawyer’s violation of the Model Rules?
If:
- The lawyer orders or ratifies the conduct involved; or
- The lawyer has managerial or 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.
Is following a supervisor’s orders a defense for violating the Rules?
No, a lawyer is bound by the Rules regardless of whether or not they were following orders.
Do the Rules govern whether a lawyer may be held civilly or criminally liable for another lawyer’s conduct?
No, the Rules only speak to whether the lawyer will be subject to professional discipline, not civil or criminal liability.
Will a subordinate lawyer violate their ethical duty if they follow a supervisory lawyer’s reasonable resolution of an arguable question of professional duty?
No, the supervisory lawyer may be found to violate the Rules, but a subordinate lawyer will not be liable.
When is a lawyer who provides law-related services subject to the Model Rules?
If:
- The circumstances are not distinct from the lawyer’s provision of legal services to clients; or
- The lawyer fails to take reasonable measures to assure that the person obtaining the law-related services knows that the services are not legal services and that the protections of the client-lawyer relationship do not exist.
