Regulation of Legal Profession

Question 1

Can states require law license applicants to disclose more than in a typical job application? (ex. mental illness history)

Answer 1

Yes, the application can contain questions that would likely be unconstitutional in standard job applications. (ex. drug abuse status)

Rule 8.1

Question 2

What are the consequences of making a material false statement on a bar admission application?

Answer 2

The applicant may be denied admission to the bar. Or if admitted, the lawyer may have their license suspended or revoked.

Rule 8.1, comment 1

⭐️ Moral of the story: Don’t lie!

Question 3

Under Rule 8.1, what is a bar applicant required to do if they made a prior misstatement on their application?

Answer 3

Correct any prior misstatement and provide affirmative clarification of any misunderstanding to the necessary parties.

Rule 8.1, comment 1

Question 4

Can a bar applicant invoke the 5^th to avoid disclosing confidential information on a bar application?

Answer 4

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 5^th. They cannot answer “no” to avoid the question.

Rule 8.1, comment 2

Question 5

Under Rule 8.4, what is considered professional misconduct?

Answer 5

When a lawyer:

1. Violates the Rules, or knowingly assist or induce another to do so
2. Commits a crime that reflects adversely on honesty, trustworthiness, or fitness
3. Engages in dishonesty, fraud, deceit, or misrepresentation
4. Engages in conduct prejudicial to the administration of justice
5. States or implies an ability to improperly influence a government agency or official
6. Knowingly assists a judge in violating judicial conduct rules or the law
7. Engages in harassment or discrimination the lawyer knows or should know is improper

Rule 8.4

Question 6

Is negligent misrepresentation or negligent failure to inform considered professional misconduct under Rule 8.4?

Answer 6

No

Rule 1.0, comment 5

Question 7

Are restrictions on the right to practice valid? (ex. non-competes)

Answer 7

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.

Rule 5.6(a)

Question 8

Is an agreement that restricts a lawyer’s right to practice as part of a client settlement valid?

Answer 8

No, lawyers are prohibited from agreeing not to represent other persons in a client settlement.

Rule 5.6(b)

Question 9

Is a law firm responsible for ensuring its lawyers conform to the rules?

Answer 9

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.

Rule 5.1(a)

Question 10

What are examples of reasonable policies and procedures that a law firm could enact to ensure conformity with the Model Rules?

Answer 10

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

Rule 5.1, comment 2

Question 11

When is a lawyer responsible for another lawyer’s violation of the Model Rules?

Answer 11

1. The lawyer orders or ratifies the conduct involved; or
2. 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.

Rule 5.1(c)

Question 12

Is following a supervisor’s orders a defense for violating the Rules?

Answer 12

No, a lawyer is bound by the Rules regardless of whether or not they were following orders.

Rule 5.2(a)

Question 13

Do the Rules govern whether a lawyer may be held civilly or criminally liable for another lawyer’s conduct?

Answer 13

No, the Rules only speak to whether the lawyer will be subject to professional discipline, not civil or criminal liability.

Rule 5.1, comment 7

Question 14

Will a subordinate lawyer violate their ethical duty if they follow a supervisory lawyer’s reasonable resolution of an arguable question of professional duty?

Answer 14

No, the supervisory lawyer may be found to violate the Rules, but a subordinate lawyer will not be liable.

Rule 5.2(b)

Question 15

When is a lawyer who provides law-related services subject to the Model Rules?

Answer 15

1. The circumstances are not distinct from the lawyer’s provision of legal services to clients; or
2. 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.

Rule 5.7(a)

Question 16

A lawyer who is not admitted in a jurisdiction is prohibited from doing what sorts of actions in that jurisdiction?

Answer 16

1. Establishing an office or other systematic and continuous presence in that jurisdiction for the practice of law; or
2. Holding out to the public or otherwise representing that the lawyer is admitted to practice in that jurisdiction.

Rule 5.5(b)

Question 17

When can a lawyer provide temporary legal services in a jurisdiction they are not admitted in?

Answer 17

1. Working with a local lawyer who actively participates
2. Related to a proceeding where the lawyer (or client) is authorized to appear
3. Related to the lawyer’s home-jurisdiction practice and doesn’t require pro hac vice
4. Other services related to admitted practice and not covered by the above

Rule 5.5(c)

Question 18

An attorney who is admitted in good standing in another jurisdiction can provide in-house counsel in a jurisdiction in which they are not admitted if:

Answer 18

The services:

1. Are provided to the lawyer’s employer or its organization affiliates; permission to appear pro hac vice is not required; and, when performed by a foreign lawyer and requires advice on the law of the U.S, such advice shall be based upon the advice of a lawyer who is duly licensed; or
2. Are services that the lawyer is authorized to provide by federal law or the law of the jurisdiction.

Rule 5.5(d)

Question 19

Is delegating duties to paralegals, other professionals, or law students assisting in the unauthorized practice of law?

Answer 19

No, as long as the lawyer supervises the delegated work and retains responsibility for their work.

Rule 5.5, comment 2

Question 20

Can lawyers provide professional advice to non-lawyers (ex. claims adjusters, social workers, accountants) without violating Rule 5.5?

Answer 20

Yes, as long as the non-lawyer does not appear in court for the lawyer.

Rule 5.5

Question 21

Is a lawyer counseling a non-lawyer on how to proceed pro se assisting in the unauthorized practice of law?

Answer 21

No.

This is allowed under Rule 5.5, comment 3.

Question 22

Can a lawyer or law firm share fees with nonlawyers?

Answer 22

No, but:

1. A lawyer’s law firm, over a reasonable period of time after the lawyer’s death, may pay the lawyer’s estate;
2. A lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may pay the agreed-upon purchase price to the estate;
3. A lawyer or law firm may include nonlawyer employees in a compensation or retirement plan; and
4. A lawyer may share court-awarded legal fees with a nonprofit organization that employed, retained or recommended employment of the lawyer in the matter.

Rule 5.4(a)

Question 23

Can lawyers form partnerships with nonlawyers? (ex. accountants)

Answer 23

Not if any of the activities of the partnership consist of the practice of law.

Rule 5.4(b)

Question 24

Are third parties allowed to pay the legal fees of another?

(ex. Uncle pays for nephew’s legal fees)

Answer 24

Yes, but they are prohibited from directing or regulating the lawyer’s professional judgment in rendering such legal services.

Rule 5.4(c)

Question 25

Can a lawyer practice in a law firm or corporation in which a **nonlawyer owns an interest or is a director**?

Answer 25

No. [Rule 5.4(d).](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_5_4_professional_independence_of_a_lawyer/)

Question 26

Can a lawyer practice in a firm in which a **nonlawyer** has the right to **control or direct** the lawyer's professional judgment?

Answer 26

No ## Footnote [Rule 5.4(d)(3)](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_5_4_professional_independence_of_a_lawyer/)

Question 27

Does a lawyer need to **inform the client** about fee sharing if it is with **another partner in their firm**?

Answer 27

No, only if it is with lawyers **outside** the firm.

Question 28

When is an attorney **required** to inform the appropriate authority that another lawyer has violated the Rules?

Answer 28

Only when the attorney has **_actual knowledge_** that the lawyer has done something that raises a substantial question as to that lawyer’s **honesty, trustworthiness, or fitness** as a lawyer. ## Footnote [Rule 8.3(a)](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_8_3_reporting_professional_misconduct/)

Question 29

When is a lawyer **required** to report judicial misconduct?

Answer 29

When the lawyer has _**actual knowledge**_ that a judge has violated the applicable rules of judicial conduct, thereby raising a question as to the judge’s **fitness for office**. ## Footnote [Rule 8.3(b)](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_8_3_reporting_professional_misconduct/)

Question 30

Are attorneys **required** to report lawyer misconduct learned while serving as a member of a **lawyer assistance program**?

Answer 30

**No**, because without such confidentiality, lawyers and judges may hesitate to seek assistance from these programs. ## Footnote [Rule 8.3, comment 5](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_8_3_reporting_professional_misconduct/comment_on_rule_8_3/)

Question 31

If a lawyer has **actual knowledge** of another lawyer's misconduct, are they required to report that knowledge if the information is **confidential** under Rule 1.6?

Answer 31

No ## Footnote [Rule 8.3, comment 2](http://Rule%208.3(c):%20Reporting%20of%20Professional%20Misconduct%20Exception)

Question 32

Does the duty to report apply if a lawyer **is representing** another lawyer whose professional conduct is in question?

Answer 32

No, relationship is governed by the Rules applicable to the client-lawyer relationship. ## Footnote [Rule 8.3, comment 4](http://Rule%208.3:%20Reporting%20Professional%20Misconduct%20-%20Confidential%20Info)

Question 33

If a lawyer is admitted in one jurisdiction, and violates the Rules in another jurisdiction, the rules of **which jurisdiction** apply?

Answer 33

The jurisdiction **where the lawyer is admitted** to practice. However, if the lawyer was **providing legal services** in the other state, they may be **subject to discipline there** as well. ## Footnote [Rule 8.5](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_8_5_disciplinary_authority_choice_of_law/)

Question 34

Can a lawyer be subject to discipline if they engage in fraud or dishonesty in **non-legal areas?**

Answer 34

Yes

Question 35

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Answer 35

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