LEGAL PROFESSION OUTLINE SCHEFLIN FALL 2013
(a) ULTIMATE AUTHORITY:
· GENERAL RULE: Because attorneys are officers of the court, the ultimate power to regulate the legal system resides in the highest court of the state.
· The legislature created the State Bar.
· Every state recognizes that the power to admit and to discipline attorneys rests in the judiciary.
· The California Supreme Court may determine that the legislature has overstepped its authority.
i. EX: In re Lavine (1935): The legislature may not enact a statute to overturn a judicial rule governing re-admission to the practice of law because the court has inherent and ultimate power to govern the admission of attorneys.
· EXCEPTION: The Courts are prohibited from expanding the recognized privileges—attorney/client, priest/pennant, psychotherapist/patient, marital confidences. This is an exclusive power held by the legislature and not the courts.
THE CALIFORNIA STATE BAR:
· The California Supreme Court may delegate responsibilities to the State Bar. B&P Code Section 6087.
· The State Bar has been legislated into existence to serve as an agent for the Supreme Court.
· The Supreme Court has final authority to disbar or discipline members of the bar. B&P Code Section 6087.
· Article VI, Section 9: “The State Bar of California is a public corporation.” It derives its operating funds from two major sources, (1) annual membership fees enacted by the legislature, and (2) its power to borrow money, contract debts, and issue bonds, notes and debentures.
· THE MANDATORY BAR: Article VI, Section 9 provides that every person admitted and licensed to practice law in California must be a member of the State Bar, except while holding office as a judge of a court of record.
o State Bar membership is mandatory!
(a) COMPELLED MEMBERSHIP:
· The Supreme Court of the U.S. upheld the authority of a state to require membership in the bar as a pre-condition to practicing law—it is constitutional.
(b) COMPELLED DUES:
· The State Bar may impose mandatory dues for all activities germane to their goals.
· Because the State Bar cannot be stopped from holding political positions, it can take positions for which the members vehemently disagree.
· LIMITATION: Attorneys can request that their, specific, dues money not be used for political purposes.
STATE BAR AND RULES OF ETHICS:
· While the State Bar doesn’t have power to make ethics rules that are binding on CA lawyers, it does generate proposed rules, and with approval by the Board of Governors, the proposal is sent to the CA Supreme Court. B&P Code 6076.
· The rule becomes binding only when it is officially adopted by the Supreme Court.
· ABA Model Rules are not authoritative in CA, but may be looked to for guidance of support for conduct. (They may reflect public policy in areas where CA courts haven’t spoken).
· Model Rules of Professional Conduct (MRPC)
o The MRPC are not binding in California, because CA has its own ethics code.
§ However the ABA rules are more extensive than CA’s code.
§ Although no lawyer is bound by the ABA, where there is an absence or gap in the CA rules, the ABA can be treated as if it is authority from another sister-stateàpersuasive authority.
REPORTING AND ETHICS VIOLATIONS:
· The rules of professional conduct may not be used to support malpractice liability.
· You can use the ethics rule to establish that a standard of care was violated, but the violation of an ethics rule is NOT an independent legal claim on its own.
· ABA: Mandates reporting other lawyers who have violated the rules of professional conduct in a manner that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.
o Failure to do so is grounds for discipline in ABA jurisdictions.
o 8.3 doesn’t specify a “self-reporting” requirement.
· CA: there is no affirmative ethical duty to report professional misconduct.
o But, a lawyer is prohibited from entering into an agreement which precludes an attorney from reporting an ethics violation by another attorney.
GEOGRAPHIC SCOPE OF THE ETHICS RULES:
· ABA MR 8.5(a): A lawyer admitted in one jurisdiction may be disciplined in that jurisdiction for conduct occurring in that, or any other jurisdiction. A lawyer may be disciplined in any jurisdiction where the lawyer provides or offers to provide any legal services.
· CRPC Rule 1-100(D)(1): A CA lawyer may be disciplined for activities in and outside CA, except when the lawyer is lawfully practicing in another state and is required by that state to obey its own ethics rules.
o (D)(2): Lawyers not licensed in CA are required to obey CA’s ethics rules when lawfully practicing in CA.
Potter v. Eli Lilly and Co. (Kentucky 1996):
· If lawyers commit bad faith conduct during litigation, i.e., secret end-run around available judicial processes, the court has inherent authority to issue sanctions for bad faith conduct.
· An attorney’s obligation to exercise candor with the trial court supersedes their obligation to their client.
· Federal courts have the exclusive right to determine admission to federal courts. Disbarment by federal courts does not automatically flow from disbarment by state courts. Theard v. United States (S.Ct. 1957).
· 18 years of age; at least 2 years (or equivalent) of college—1/2 requirements for a bachelor’s degree.
· CA requires an applicant to receive a ‘sufficient legal education.’ B&P 6060(e)
· Problems: Lawyers who received their training in foreign countries; and online law schools because they aren’t accredited.
II. THE BAR EXAMINATION:
· Most states require passage of the bar examination as a condition to practice law.
· The constitutionality of the bar exam has been upheld.
III. CITIZENSHIP AND RESIDENCE:
· The U.S. Supreme Court has held that admission to the bar may not be based on citizenship because this criteria bears no reasonable relationship to an applicant’s ability or fitness to practice law. Graham v. Richardson (S.Ct. 1971).
· Residency Rules:
i. A nonresident who has passed the bar exam, but chooses not to live in the state, cannot be denied admission under the Privileges and Immunities Clause of Article IV—which requires a State to treat equally all residents and nonresidents doing business in the State.
ii. ‘Limited Residency’ Rules: It is unconstitutional for a State to require a person to be a resident for a short period of time before being allowed to take the bar exam.
iii. A federal court may not impose a residency requirement as a condition for admission to its bar, but it may require that an attorney be a member of the bar of the State in which the federal court sits.
iv. A State may constitutionally require a nonresident, as a condition of admission by reciprocity, to agree to practice full time in that jurisdiction.
v. A federal district court cannot require that an applicant maintain a residence, or an office, in the State in which the federal court sits.
1. Virtual Law Offices: A virtual law office is permissible as long as all of the data is kept secure because the communication between attorney-client is confidential, and the lawyer must inform the client of the arrangement
IONS: If an attorney recommends an applicant, the lawyer must not make affirmative statements that are untrue, and must reveal unfavorable information, such as unfitness to practice law and must not ‘further’ the application for admission.
o It is an ethical offense for an attorney to write a letter for a bar application for a person whom the attorney does not personally know.
· GENERAL RULE: A disbarred attorney might still be able to return to practice after the passage of years if he or she can prove remorse, good moral character, good deeds and good reputation since the disbarment.
· In the Matter of Robert T. Rowe (1992): (After murdering his wife, and being found not guilty by reason of mental disease, Rowe’s application for reinstatement was rejected.)
o Conduct that tends to reflect adversely on the legal profession as a whole and to undermine public confidence in it warrants disciplinary action. Because lawyers are officers of the court, it is the lawyer’s obligation to participate in upholding the integrity, dignity, and purity of the courts.
THE AUTHORIZED PRACTICE OF LAW:
UNAUTHORIZED PRACTICE OF LAW:
· B&P 6125: No person shall practice law (for another person) in California unless the person is an active member of the State Bar. (Exception: People may represent themselves and their own interests.)
o You must be licensed in CA; and
o An active member of the State Bar.
· Voluntary Inactive Status: Requested where an attorney retires from practice, engaging in extended travel, changing occupations, or any other reason. Only minimal bar dues are paid per year; may become active upon payment of active status bar dues. Not permitted to practice law while inactive.
· Involuntary Inactive Status: If an attorney is unable to practice law competently without danger to the interests of clients and the public, then involuntary inactive status may be necessary because the attorney has been found in a court proceeding or by the State Bar to be in need of treatment, confinement, or conservatorship, due to mental problems, alcohol abuse or drug problems.
“Practice of Law” Definitions: [No precise definition in the ABA, it leaves that to the state] · The unauthorized practice of law is a misdemeanor.
· A precise definition is impossible, and each case must be decided upon its own particular facts.
· The ‘practice of law’ encompasses two distinct categories of activity:
o (1) The representation of another before a court or quasi-judicial tribunal.
o (2) Out of court, the preparation of another of documents substantially affecting legal rights or the giving of legal advice.
· Recognized Law Practice: Counsel and advise, the drawing of agreements, the organization of corporations and preparing papers connected therewith, the drafting of legal documents of all kinds, including wills.
· RULE: A corporation, other than a certified professional legal corporation [law firm], is forbidden to practice law, though it can hire counsel to represent its interests.
· 3 CCC’s: Conflict, Confidentiality, Communication