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

Legal Professions Outline – Professor Scheflin

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 technique is required

2. The Doctrine of Negative Inherent Powers (Inherent Authority)
1. Three aspects of the doctrine

(1) Irreducible inherent authority – powers fundamental to the essence of the ct as a constitutional tribunal
(2) Necessary to the exercise of all others – powers permitting the ct to conduct its business
(1) Eg. Regulation of lawyers
(3) Necessary in the pursuit of a just result – powers which arise from notions of equity, neutrality, and fairness
2. CA courts have inherent powers, independent of statute, derived from
(1) the courts’ equitable power derived from the historic power of equity courts and
(2) supervisory or administrative powers which all courts possess to enable them to carry out their duties
3. Whenever an argument is available that a serious disadvantage to the administration of justice might occur, the doctrine may be raised
4. Potter v Eli Lilly – (lawyers settle but don’t inform the judge)
(1) trial court has sufficient inherent authority to conduct an investigation and a hearing to determine whether its judgments accurately reflect the truth
2. The American Bar Association
1. Established in 1878, voluntary organization of lawyers
2. Canons o

y when it’s officially adopted by the Supreme Court or Legislature
3. Conducts proceedings when complaints against lawyers have been filed
4. Issues Opinions on ethical matters from time to time
5. The State Bar Courts
1. 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
2. O’brien v Jones (exec and legis branches appoint hearing judges in the State Bar Court)
(1) benefits of a more diverse perspective achieved through non-judicial appointment of some hearing judges. Their appointments are subject to approval by the Supreme Court anyway
5. The CA Legislature and the Regulation of Attorneys
1. Business and Prof Code § 6000-6228 = State Bar Act
6. The Scope of Ethical Regulation
1. Violation of a Rule of Professional Responsibility
1. MR 8.5 states: Disciplinary Authority – A lawyer admitted to practice in this jx is subject to the disciplinary authority of this jx, regardless of where the lawyer’s conduct occurs. A lawyer may be subject to the disciplinary authority of both this jx and another jx where the lawyer is admitted for the same conduct
CRPC 1-100(d) states: Geographic Scope of Rules – These rules shall govern the activities of members in and outside this state, except as members lawfully practicing outside this state