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 on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.
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?
- 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?
- 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.
A lawyer who is not admitted in a jurisdiction is prohibited from doing what sorts of actions in that jurisdiction?
- Establishing an office or other systematic and continuous presence in that jurisdiction for the practice of law; or
- Holding out to the public or otherwise representing that the lawyer is admitted to practice in that jurisdiction.
When can a lawyer provide temporary legal services in a jurisdiction they are not admitted in?
If the services are:
- Undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter;
- Reasonably related to a pending or potential proceeding that the lawyer, or the person the lawyer is assisting, is authorized by law or order to appear;
- Reasonably related to the lawyer's practice in their admitted jurisdiction and are not services for which the forum requires pro hac vice admission; or
- Not within paragraphs (c)(2) or (c)(3) and are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice.
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:
- 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
- Are services that the lawyer is authorized to provide by federal law or the law of the jurisdiction.
Is delegating duties to paralegals, other professionals, or law students assisting in the unauthorized practice of law?
No, long as the lawyer supervises the delegated work and retains responsibility for their work.
Can lawyers provide professional advice to non-lawyers (ex. claims adjusters, social workers, accountants) without violating Rule 5.5?
Yes, as long as the non-lawyer does not appear in court for the lawyer.
Is a lawyer counseling a non-lawyer on how to proceed pro se assisting in the unauthorized practice of law?
No, this is allowed under Rule 5.5, comment 3.
Can a lawyer or law firm share fees with nonlawyers?
- A lawyer's law firm, over a reasonable period of time after the lawyer's death, may pay the lawyer's estate;
- A lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may pay the agreed-upon purchase price to the estate;
- A lawyer or law firm may include nonlawyer employees in a compensation or retirement plan; and
- A lawyer may share court-awarded legal fees with a nonprofit organization that employed, retained or recommended employment of the lawyer in the matter.
Can lawyers form partnerships with nonlawyers? (ex. accountants)
Not if any of the activities of the partnership consist of the practice of law.
Are third parties allowed to pay the legal fees of another? (ex. Uncle pays for nephew's legal fees)
Yes, but they are prohibited from directing or regulating the lawyer's professional judgment in rendering such legal services.
Can a lawyer practice in a law firm or corporation in which a nonlawyer owns an interest or is a director?
No. Rule 5.4(d).
Can a lawyer practice in a firm in which a nonlawyer has the right to control or direct the lawyer's professional judgment?
No. Rule 5.4(d)(3).
Does a lawyer need to inform the client about fee sharing if it is with another partner in their firm?
No, only if it is with lawyers outside the firm.
When is an attorney required to inform the appropriate authority that another lawyer has violated the Rules?
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.
When is a lawyer required to report judicial misconduct?
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.
Are attorneys required to report lawyer misconduct learned while serving as a member of a lawyer assistance program?
No, because without such confidentiality, lawyers and judges may hesitate to seek assistance from these programs.
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?
Does the duty to report apply if a lawyer is representing another lawyer whose professional conduct is in question?
No, relationship is governed by the Rules applicable to the client-lawyer relationship.
If a lawyer is admitted in one jurisdiction, and violates the Rules in another jurisdiction, the rules of which jurisdiction apply?
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.
Can a lawyer be subject to discipline if they engage in fraud or dishonesty in non-legal areas?
Yes, lawyers can still be subject to discipline for fraud or dishonety even if they are not actively engaged in the practice of law.