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Legal Profession
Santa Clara University School of Law
Scheflin, Alan W.

Legal Professions Outline
Professor Scheflin
1.                  General
1.                  Regulation
1.                  Lawyers are the most regulated
2.                  Who regulates them? It stems from the separation of powers
1.                  Legislature and supreme ct collaborate to control them
2.                  Sup ct has the ultimate authority over them
(1)               CA sup ct should have the final say
(2)               BUT attorney client priv would be found in the Code of Evidence (legislature has the ultimate authority but it’s not clear why. The sup ct honors this abdication)
(1)               sup ct can in no way alter the legislative scheme when it comes to privileges
2.                  State Bar
1.                  State bar created by legislation in 1927 but it’s answerable to the CA sup ct
2.                  State bar has no final authority over anything
3.                  It must be approved by the legislature or by the court
3.                  State Bar court made to alleviate cases from the courts of appeal
1.                  Not the final authority. There’s an appeal to the CA sup ct
4.                  State bar proposes rule, lawyers in the membership comment on it and send it back.
1.                  It doesn’t become a rule unless it’s the CA sup ct that adopts it
Regulation of the Legal Profession
2.                  The Ethics Regulators
1.                  Courts and Legislature
1.                  The Doctrine of State Preemption
1.                  Where the federal government has the right to act, it may preempt state law
(1)               Fed law however don’t generally regulate lawyer conduct, except when lawyers appear before the federal tribunals
2.                  The only ways fed can step in is if the constitution is involved or when there is a federal interest involved and the state has encroached upon it
3.                  Baron v City of LA (ordinance says they must register as a lobbyist if they appear in front of a tribunal)
(1)               the State Bar Act preempts the field of regulation of attorneys only insofar as they are “practicing law”
(1)               practicing law can be seen as the exclusive right to represent another in court
(2)               it’s a misdemeanor to practice law in CA w/o a license, but there is no definition found of what “practicing law” is exactly
(3)               the character of the act, not the place where it occurs, is the decisive element and if the application of legal knowledge and t

Model Rules of Professional Conduct was officially published in 1983
3.                  American Law Institute
1.                  Founded in 1923, invitation only, prepare Restatements of the Law
2.                  Restatement 3d, The Law Governing Lawyers
3.                  CA has it’s own rules
4.                  The CA State Bar
1.                  The Functions of the State Bar
1.                  Has the authority to sue, make contracts, own and maintain property, lobby before the Legislature, create and maintain programs to assist the public in learning of their legal rights, and help facilitate lay persons to obtain competent legal counsel
2.                  Administer a client security fund, establish and maintain a procedure for the arbitration of disputes, regulate admission to the bar, draft standards to govern the conduct and activities of Bar members, and conduct disciplinary investigations and impose public or private reproval for willful violations of the Rules of Professional Conduct