Select Page

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

PART ONE: Regulation of the Legal Profession
CHAPTER 1:     The Ethics Regulators
A. Courts and Legislatures: Lawyers as professionals and individuals are regulated by state and federal governments by means of statutes, rules of professional conduct, bar opinions and judicial decisions.
1.  The Doctrine of Federal Preemption: Regulation of attorneys is generally a matter of state law. Federal law preempts states from regulating attorney’s conduct when
a.       Constitutional rights are involved AND
b.      Exclusive federal jurisdiction is involved
            2. The Doctrine of State Preemption
Baron v. City of Los Angeles, CASC 1970, 2
L.A. ordinance “Registration of Lobbyists” provided that any municipal deliberative body charged w/ duty of conducting a hearing & making a decision must register as a lobbyist. Definition of municipal legislation included resolutions, appeals, motions, petitions, etc. P was an attorney who often made appearances before city council on behalf of others. He sued when he was forced to register.
Issue: Whether the ordinance regulated purely municipal affairs (case). Also whether a lawyer may be exempt from laws that otherwise are binding on nonlawyers or whether lawyers must obey laws that do not apply to non lawyers.
·         Regulation of attorneys is a statewide concern
·         Practice of Law: 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. But in a large sense it includes legal advice and 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.
·         Laymen who practice law within its meaning are guilty of a misdemeanor (CA)
Holding: Ordinance does not deal with purely municipal affairs and is invalid to the extent that it conflicts with State Bar Act.
Notes: Even when lawyers are engaged in activities that lay persons are permitted to perform, lawyers must still adhere to the rules of professional conduct.
3.      Separation of Powers
a.      Ultimate Authority: The supreme court of every state has the ultimate power to regulate attorneys unless federal law preempts. Generally there is harmony between legislatures & courts. However note-
·         In re Lavine, CASC 1935, 7: Example of congress overstepping its authority. Pardon statute (if pardoned, right to practice automatically restored) overturned a judical rule regarding readmission. Thus, statute U/C b/c impermissible legislative encroachment upon court’s inherent and ultimate power to govern the admission of attorneys.
·         In re Attorney Disciplinary System, CASC 1998, 7: Court has inherent authority to impose regulatory fee upon attorneys to support an attorney discipline system (attorney dues collection fight)
b.      The Doctrine of Negative Inherent Powers (inherent authority):  Judiciary power from state and federal Cs, as well as loose authority from its own rulings. Where the power to regulate attorneys is not expressly granted in the state C, it is assumed by courts under the negative inherent powers doctrine, which is part of C’l separation of powers. Inherent power also includes authority to protect the sanctity of the judicial process.
Potter v. Eli Lilly and Company, KYSC 1996, 8
Whether prozac was unreasonably dangerous. FDA approved drug but Lily was not completely honest. Trial judge entered judgment dismissing the claim with prejudice, but three months later sought to correct a clerical mistake in its judgment. Ct. of App. said trial court had lost jx b/c parties settled. Trial judge had power to correct its mistake.
Rule: Trial court has a duty and right to determine that its judgments are correct and accurately reflect the truth.
Rule: Inherent power goes beyond actual fraud; it encompasses bad faith, abuse of judicial process, deception of the court & lack of candor to the court.
·         No affirmative duty to disclose background dealings to the court, but could face sanctions b/c case will have been continued when parties have settled.
·         Three aspects of courts inherent power:
1.      Irreducible inherent authority (powers fundamental to the essence of the court as a C’l tribunal)
2.      Necessary to the exercise of all others (powers permitting the court to conduct its business, including regulation of lawyers)
3.      Necessary in the pursuit of a just result (powers which arise from notions of equity, neutrality, and fairness)
B. The California State Bar
1.      The Status of the State Bar:  CASC may delegate power to state bar (BPC § 6087) In 1960, CA C declared the state bar a constitutional body. 
2.      The Mandatory Bar:  requirement known as the “integrated, mandatory or unified bar” = every person admitted and licensed to practice law in CA must be a member of the state bar except while holding office as a judge of a court of record. Moreover a state may constitutionally require any lawyer wishing to practice in that state to be a member of the bar.
·         BPC § 6031: The State Bar cannot be involved in any evaluation, review, or report on the qualification, integrity, diligence, or judicial ability of any justice of a court w/o prior review & statutory authorization by legislature.
·         Federal: ABA may evaluate federal judicial candidates
·         Keller v. State Bar of CA, 1990, 14: State Bar may fund political causes, but must have procedure to return proportionate share of compulsory dues to any member who objected to funding these activities.
·         Gardner v. State Bar of NV, 9th Cir. 2002, 15:State Bar may conduct public information & education campaigns to describe legal system & improve public image of law & lawyers (not partisan political activity, nor unrelated to bar’s purpose).
·         Morrow v. State Bar of CA, 9th Cir. 1999, 16: No 1st Amdt violation for forcing lawyers to belong to organization that publicly espoused views with which they disagreed (Ps free to disagree publicly w/ bar’s political stances).
3.      The State Bar and Rules of Ethics: State Bar does not have power to make ethics rules binding on lawyers. Generates proposed rules for CASC adoption. Proposed rule becomes binding only when officially adopted by CASC (BPC § 6077).
4.      The State Bar Courts: 1988 legislature directed the state bar board of governors to establish a state bar court that would assume the board’s disciplinary functions (BPC § 6086.5). Divided into hearing & review departments. 
·         Hearing department conducts full evidentiary hearings before a judge who renders a written decision recommending the discipline. 
·         Review department acts as an appellate division of the state bar court overseeing the rulings and order of the hearing judge.  
·         Because the state bar courts’ discipline recommendations are advisory, may only be implemented by order of CASC on a review based on the merits. 
·         Up until 2000 state bar court judges were appointed by CASC. Amended to authorize the governor, the senate committee on rules, & the speaker of the assembly to appoint.
C. The American Bar Association: Established in 1878 as voluntary organization of lawyers who met to discuss law, pass resolutions affecting law, regulate accredited law schools, evaluate qualifications of federal judicial nominees and perform other legal functions. ABA cannons of ethics were replaced by Model Code of Professional Conduct (MCPC) in 1983.
D. The Scope of Ethical Regulation
Violation of a Rule of Professional Responsibility
Rules are relevant to the standard of care in a legal malpractice action, but there is preference for the separation of ethical and legal rules
Reasons to differentiate b/w disciplinary and malpractice (Hizey v. Carpenter, WASC 1992, 20): (1) a lawyer may be disciplined even if the misconduct does not cause any damage, (2) although the severity of the breach may affect the nature of the discipline, prophylactic purpose of ethic may result in sanction even if conduct would not otherwise be a civil wrong, (3) even if injured party initiates disciplinary hearing the individual is not a party at the proceeding.
Not determinative but may be considered.
CRPC 1-100(A): These rules are not intended to create new civil causes of action.
Conduct Not Expressly Prohibited:  Can still lead to disbarment. Court has inherent power.
Can disbar for preadmission criminal acts.
Private, non-professional behavior may be basis for ethical censure or exclusion.
When memb

o practice in CA federal court was prevented by legitimate federal rule requiring attorneys to be members of the local state bar (Maynard v. US Dist. Ct., C.D. CA 1988, 34).
                                                            ii.      Attorney Member Has No Residence or Office in the State
·         Not required to have an office in the state in which you are practicing (Frazier v. Heebe, 1987, 34).
Reciprocity: Idea that if you pass the bar in one state it is good for all others. ¼ of states allow reciprocity. CA requires attorney to pass CA bar exam to practice in CA.
B. Substantive Requirements
Good Moral Character Requirements: BPC 6060(b) & 6062(b) require that an applicant be of good moral character. If dispute, state bar may hold hearings to make factual/policy determination. Burden of proving good moral character is on applicant.
·         Has been defined as “an absence of evidence of acts of moral turpitude (everything done contrary to justice, honesty, modesty or good morals) (Konigsberg v. State Bar, 1957, 36).
·         Moral turpitude examples: 1) Fraud, dishonesty, cheating, etc., for personal gain, 2) immoral or grossly antisocial conduct, 3) conduct reflecting adversely on the applicant’s ability to discharge his or her duties as an attorney such as a drunkenness or abuse, and 4) other questionable conduct for personal gain.
·         USSC Standard: A state cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the due process or equal protection clauses of the 14th Amdt… a state can require high standards of qualification, such as good moral character or fitness or capacity to practice law, must have rational connection w/ applicant’s fitness or capacity to practice law (Schware v. Bd. of Bar Examiners, 1957, 36). 
·         If behavior does not inherently involve moral turpitude, factual inquiry required.
·         3 reasons for moral requirement: 1) shielding clients from potential abuse, 2) safeguarding the legal system from subversion involving subordination of perjury, bribery and fraud, and 3) maintaining and protecting a favorable image of lawyers
·         Four areas of special interest to bar examiners: 1) mental health, 2) honesty and integrity, 3) conduct, and 4) political beliefs.
Mental Health: ADA has narrowed the scope of questions that can be asked about mental health. Ex: Rownin, p. 43 a paranoid was not admitted into the Arizona bar, was admitted into the IL bar, & psychiatrist testified that he was capable of practicing. Disbarred in IA after practicing for 22 years for frivolous lawsuits and knowingly making false accusations.
In the Matter of Robert T. Rowe, Ct. of App. of NY 1992, 38
Attorney kills wife and family while insane. Court finds him not guilty by reason of insanity and he is admitted into a hospital. After two year treated and it is testified that he could practice/ likelihood of this happening again = small. Wants readmittance into bar.
Holding: No readmittance.  Integrity of bar at stake. Also, difference between criminal conduct and that which disqualifies an attorney for the bar. Can be disbarred even if no criminal acts.
·         Reinstatement would clearly undermine public confidence & trust in the bar and have an adverse impact upon the public’s perception of the integrity of the legal profession in view of his actions in bludgeoning wife & 3 minor children to death.