I. REGULATION OF THE LEGAL PROFESSION
A. Courts and legislature: Lawyers are regulated by state and federal governments by means of statutes, rules of professional conduct, bar opinions, and judicial decisions.
1. What is the practice of law? (see BARON v. CITY OF LOS ANGELES (Cal. 1970))
i. Practice of law encompasses all of the activities engaged in by attorneys in a representative capacity, including legal advocacy.
ii. Practice of law is the doing or performing services in a court of justice in any matter depending therein, throughout its various stages, and in conformity to the adopted rules of procedure.
a. The character of the act, and not the place where it is performed, is the decisive element, and if the application of legal knowledge and technique is required, the activity constitutes the practice of law, even if conducted before an administrative board.
iii. Practice of law includes legal advice & counsel and the preparation of legal instruments and contracts by which legal rights are secured although such matter may or may not be depending in a court.
iv. Resolution of legal questions for another by advice, and action is practicing law if difficult or doubtful legal questions are involved which to safeguard the public, reasonably demand the application of a trained legal mind.
v. Performing services in a representative capacity in a manner which would constitute the unauthorized practice of law if performed by a layman.
vi. Acting on behalf of others in the performance of a duty and services, which duty and services lawfully can be performed for such other only by an attorney licenses to practice law in state of California.
i. Federal law preempts state laws regulating the conduct of attorneys when constitutional rights are involved and when matters are of exclusive federal jurisdiction.
ii. Admission to federal court is governed solely by federal courts.
i. BARON v. CITY OF LOS ANGELES (Cal. 1970): An ordinance is a valid exercise of police power of a city and may be applied to a lawyer, except when they are acting on behalf of others in the performance of a duty or service, which duty or service lawfully can be performed for such other ONLY by a licensed California attorney. An attorney would be required to register as a lobbyist if they are representing a client to appear at hearings considering local legislation but not where a hearing for reaching quasi-judicial decisions.
3. Separation of Powers
a. Ultimate authority residesin the highest court of the state because an attorney is an officer of
1. The Status of the State Bar: The California Supreme Court may delegate responsibilities to the state bar.
a. Cal. B & P forbids the State Bar to be involved in any evaluation, review, or report on the qualification, integrity, diligence, or judicial ability of any specific justice of a court provided for in Sec. 2 or 3 of Article VI of the Cal. Constitution without prior review and statutory authorization by the Legislature.
2. The Mandatory Bar
a. LATHROP v. DONAHUE (S.Ct. 1961): A state may constitutionally require that any lawyer wishing to practice law in that state be a member of the State Bar.
b. KELLER v. STATE BAR OF CALIFORNIA (S.Ct. 1990): Compelled association and integrated bar is justified by the State’s interest in regulating the legal profession and improving the quality of legal services. The Bar may fund from mandatory dues all activities germane to these goals.
i. However, if the state bar uses the money for political/ideological activities, it was required to have a procedure to return a