Professional Responsibility
Scott-Rudnick
Fall 2016
Regulation of the Legal Profession
Admission to the Practice of Law
An applicant for admission to the bar, or a lawyer in connection with a bar admission application, knowingly make a false statement of material fact 8.1(a)
An applicant (or a lawyer in connection with an applicant’s application for admission to the bar) 8.1(b)
Fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter or
fail to respond to a lawful demand for info from an admissions authority
EXCEPT if the info is otherwise protected by 1.6 (e.g., if representing a lawyer/applicant for admission to bar/ disciplinary inquiry)
Subject to 5th Amendment (must invoke privilege openly)
Regulation After Admission
It is professional misconduct for a lawyer to—8.4(a)
Violate or attempt to violate any of the Rules
Knowingly assist or induct another person to violate the Rules or
Use the acts of another person to commit a violation
a lawyer is not prohibited from advising a client concerning action the client is legally entitled to take
A lawyer is subject to discipline for committing a criminal act that reflects adversely on his honesty, trustworthiness, or fitness as a lawyer in other respects. 8.4(b)
To constitute professional misconduct, the crime involve some characteristic that is relevant to the practice of law (e.g., crimes involving dishonesty, breach of trust, interference with administration of justice). Other crimes do not necessarily trigger professional discipline.
A lawyer refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists.
Any conduct involving dishonesty, fraud, deceit, or misrepresentation constitutes professional misconduct. 8.4(c)
A lawyer is subject to discipline for engaging in conduct that is prejudicial to the administration of justice 8.4(d)
A L is subject to discipline where, during representation of a client, knowingly manifests bias based on race/sex/religion/national origin/disability/age/sexual orientation/ or socioeconomic status if such action is prejudicial to the administration of justice
A lawyer state or imply that he has the ability to improperly influence a government agency or official or to achieve results by that means that violate the law or Rules. 8.4(e)
A lawyer is subject to discipline for knowingly assisting a judge or judicial officer in conduct that violates the Code or other law 8.4(f)
Duty to Report Professional Misconduct
A L who knows that another L has violated the Rules in such a way that it raises a substantial question as to that L’s honesty, trustworthiness, or fitness as a L report the violation to the appropriate professional authority 8.3(a)
A L is not required to disclose info protected by 1.6, gained by a lawyer or judge while participating in an approved Ls assistance program, or where the L is retained to represent a L whose professional conduct is in question
Substantial = a matter of clear and weighty importance—refers to the seriousness of the possible offense and to the quantum of evidence of which the L is aware
Report of misconduct is not required where it would involve a violation of 1.6 but a L should encourage a client to consent to disclosure where prosecution would not substantially prejudice the client’s interests
While a lawyer report suspected misconduct, she report known misconduct.
A L who fails to report this type of misconduct is herself subject to discipline for violating the rule requiring disclosure
Unauthorized Practice and Multi-Jurisdictional Practice
Unauthorized Practice by a L
A L practice in a JX where she is not admitted to practice or assist a nonlawyer to engage in unlicensed practice of law 5.5(a)
Except as allowed by that JX’s laws or rules, the unadmitted L 5.5(b)
Represent that she is admitted to practice in that JX or
Est an office or other systematic or continuous presence of the practice of law in that JX
Permissible types of temporary multi JX practice
If a L is admitted to practice in one state, and is not disbarred or suspended form practice in any state, then she provide legal services in a secondary state on a temporary basis if: 5.5(c)
She associates a local L who actively participates in the manner
She is in or reasonably related to a proceeding before a tribunal in this or another JX if the L is authorized by law or order to appear or reasonably expects to be so authorized
A layer mediate, arbitrate, or engage in another form of ADR in a state in which she is not admitted to practice if her services arise out of, or are reasonably related to her practice in the state in which she is admitted
A L may temporarily practice out of state if the lawyer’s out of state practice is reasonably related to the L’s home-state practice
Permissible Types of Permanent Multi-JX Practice
A L admitted in one JX and who is not disbarred or suspended form practice in any JX open a law office and est a systematic and continuous practice in a different JX if: 5.5(d)
L is employed by their own client (i.e. in house counsel) and are not providing services for which the forum requires pro hac vice admission; or
The services are authorized by federal or local law
Except as provided above, a L who is admitted to practice in another JX and who est an office or other systematic or continuous presence in this JX become admitted to practice law generally in this JX
A L who is admitted to practice in one state only, but who practices in another state pursuant to (c) or (d) will be subject to the disciplinary rules of both states
Unauthorized Practice by Nonlawyers
A person not admitted to practice as a L must not engage in the unauthorized practice of law, and a L must not assist such a person to do so
Defining Practice of Law
Important considerations in determining whether the practice of law is involved include:
Whether the activity involves legal knowledge and skill beyond that which the average layperson possesses
Whether the activity constitutes advice or services concerning binding legal rights or remedies and
Whether the activity is one traditionally performed by lawyers (i.e., appearing in judicial proceedings, engaging in settlement negotiations, drafting documents)
The rule does not prohibit a L from delegating tasks to a paralegal/law clerk, but the L supervise the delegated work carefully and be ultimately responsible for the results
Law Firms and Associations
Responsibilities of Partners, Managers, and Supervisory Lawyers
Partners’ Duty to Ensure Compliance
The partners or managing lawyers of a law firm make reasonable efforts to assure that the other lawyers adhere to the Rules
Reasonable Efforts
In a small private firm, informal supervision and occasional admonition may be sufficient
In a larger organization, more elaborate steps may be necessary (e.g., CLE programs)
Duties of Direct Supervisor
A L who directly supervises the work of another L make reasonable efforts to assure that the other L adheres to the Rules
Ethical Responsibility for Another Lawyer’s Misconduct
A L is for a disciplinary violation committed by a second lawyer if—
The first lawyer ordered the second lawyer’s misconduct or knew about it and ratified it; or
The first lawyer is a partner or manager or has direct supervisory responsibility over the second lawyer and she knows about the misconduct at a time when its consequences can be avoided/mitigated and fails to take reasonable remedial action
Fee
When a L has not regularly represented the client, the basis or rate of the fee, scope of representation, and the expenses for which the client will be responsible be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation 1.5(b)
when the L will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses must be communicated to the client.
Discipline for Unreasonable Fee
A L make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses 1.5(a)
Factors considered in determining reasonableness
Novelty and difficulty of the ?s involved
Skill needed to perform the legal services properly
The likelihood, if apparent to the client, that the work for this client will preclude the lawyer from doing fee-paying work for others
The fee customarily charged in the locality ofr similar legal work
The amount at stake and the results obtained
Time limitations imposed by the client/circumstances
Nature and length of the relationship between L&C
Experience, reputation, and ability of the L performing the services
Whether the fee is fixed or contingent
Items that May and May Not be Billed
The L disclose the basis on which a C will be charged for legal services and expenses, and the L’s bill should clearly show how the amount due has been computed.
Ordinary Overhead
The L charge the C for ordinary overhead expenses associated with staffing, equipping, and running the office, but the L charge the client for the actual cost to the L of special services such as photocopying, research, deliveries, secretarial overtime, ect.
The L charge a reasonable amount to which the client has agreed to in advance
Services of Third Parties
The L charge the client more than her actual cost for the services provided by third parties
Double Billing
The L double bill her time
Collecting and Financing Attorney Fees
Payment in Advance
A lawyer require her fee to be paid in advance but she refund any unearned part of the advance if she is fired or withdraws 1.16(d)
Property for Services
A lawyer accept property in return for services that this does not involve a proprietary interest in the cause of action or subject of litigation contrary to 1.8(i)
Cutting off Services
A L make a fee agreement that could curtail services in the middle of the relationship and thus put the client at a bargaining disadvantage 1.5
Credit Arrangements and Security
A L permit the client to pay a legal fee by credit card and a L may participate in a bar association program that enable s clients to finance fees through bank loans
A L also take an interest-bearing promissory note from a client to secure the payment of fees
When permitted by law, a L use a statutory, common law, or contractual attorney’s lien to secure the payment of a fee 1.8(i)(1)
