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Legal Profession
St. Louis University School of Law
Downey, Michael P.

Legal Profession
Downey Spring 2012
 
I.              Formation of lawyer-client relationship
A.            Client is the principle, Lawyer is agent
B.            Relationship established when…(Restatement 3rd of law governing lawyering)
1.             Person manifests to lawyer intent for lawyer to provide legal services AND
a)             Lawyer manifests consent to the person OR
b)            Lawyer fails to manifest lack of consent to the person when lawyer knows or should know person reasonably relies on lawyer to provide services
C.            First thing for all exam questions – identify all relationships.
II.             Fiduciary Duties to Client
A.            Loyalty
B.            Communication
C.            Confidentiality – separate from privilege
D.            Independent Judgment
E.            Safekeeping Property
F.            Candor (in the middle of star)
G.            Some based on rules, others based on common law.
H.            A breach of any of these duties could bring rise to a tort claim for breach of fiduciary duties.
III.            Rule 2.1
A.            Shall exercise Independent Judgment and render candid advice—When rendering candid advice, lawyer may refer to other sources beyond the law—moral, economic, social, political, etc.
B.            Taxi cab driver – should recommend alternative.
C.            Visitation for kids – should recommend psychologist best interest of kids.
D.            If legally experienced client asks for purely technical legal advice, rendering only such advice is appropriate, for legally inexperienced clients, lawyer may (should) offer alternative, comprehensive advice.
IV.           Bar Admission
A.            Legal Education (or substitute)
1.             ABA Accredited Law School
2.             Non-ABA Accredited law school
3.             Reading law
4.             Foreign law school
B.            Bar Exam (or substitute)
1.             State Bar exam
a)             Multistate Professional Responsibility Exam (MPRE)
b)            Multistate Bar Examination (MBE)
c)             Essay questions (State-specific and Multistate MEE)
d)            Multistate Practice Test (MPT)
2.             Diploma privilege
3.             Motion/reciprocity
C.            Character & Fitness Exam
1.             Purpose of character and fitness
a)             Professionalism
b)            Preserve standards
c)             Protect clients
2.             Factors for Character and Fitness Determination in MO
a)             Unlawful conduct
b)            Failure to provide complete and accurate information or lack of candor in the application or investigation
c)             Academic or other misconduct at an educational institution
d)            Misconduct in employment
e)             Acts involving dishonesty, fraud, deceit or misrepresentation
f)             Financial irresponsibility
g)            Lack of respect for the legal system, including abuse of legal process
h)             A condition or disorder (including, but not limited to alcohol abuse, substance abuse, or a mental, emotional, or nervous disorder or condition) that currently impairs behavior, judgment, understanding, capacity to recognize reality, ability to function in school, work, or other important life activities, or ability to practice law in a competent and professional manner
i)              Denial of an application in another jurisdiction on character and fitness grounds
j)              Disciplinary action by a lawyer disciplinary agency or other professional agency of any jurisdiction
3.             Factors for assessing conduct
a)             Applicant's age at the time of the conduct
b)            Recency of the conduct
c)             Reliability of the information concerning the conduct
d)            Seriousness of the conduct
e)             Factors underlying the conduct
f)             Cumulative effect of the conduct
g)            Evidence of rehabilitation, such as positive social contributions since the conduct
h)             Applicant's candor in disclosing the conduct
i)              Applicant's acceptance of responsibility for the conduct
4.             Neglect of professional obligations
5.             May have conditional admission for mental health or chemical dependencies—with conditions meant to safeguard the lawyers ability to practice without impairment.
6.             Rule 8.1—An applicant for admission to the bar or a lawyer in connection with a bar admission application or in connection with a disciplinary matter shall not:
a)             Knowingly make a false statement of material fact; or
b)            Fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter; or
c)             Knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6
D.            Driver’s license admission theory – state bar member can pay fee and practice in any state
1.             Proposed only
2.             CA is a problem because of relaxed standards
E.            Temporary Admissions
1.             One-year while applying for other admission (MO)
a)             Must have MO supervising lawyer
2.             Corporate counsel
a)             While working for company
b)            Must re-apply when changing jobs
c)             Cannot provide other legal services (except pro bono)
3.             Pro hac vice (“for this occasion”)
a)             Permission to appear in one case (usually litigation)
b)            Often must submit application, pay fee, and possibly have local counsel
V.            Licensure
A.            Basics
1.             Usually for one state only
2.             Require annual renewal with fees
3.             Most require annual CLE, including ethics.
B.            Federal Courts
1.             Separate admission required for (virtually every) federal court
Exception – admission to Eastern and Western Districts of Arkansas is concurrent
2.             District courts may have different or additional requirements
3.             Some courts require periodic fees or CLE
VI

VIII.         Rule 8.3
A.            Duty to tattle, but not on self
B.            In re Himmel
1.             Himmel trying to recover stolen funds from Casey for client
2.             Himmel suspended for not reporting Casey
C.            No duty to report if it would violate rule 1.6
IX.           Organizations – Rule 1.13
A.            Lawyer represents the organization, not its constituents
B.            Any organization counts, does not need to be a corporation (e.g. cub scouts pack)
C.            Lawyer must abide by decisions of organization’s decision-making constituents. (comment 3)
X.            Competency – Rule 1.1
A.            General Competency is that of a general practitioner
B.            Sometimes need specialized knowledge
C.            Ways to gain competency
1.             Experience, Training
2.             Co-counsel
3.             Study
D.            Fundamental skills
1.             Problem Solving
2.             Legal analysis and Reasoning
3.             Legal research
4.             Factual investigation
5.             Oral and written communication
6.             Counseling
7.             Negotiation
8.             Litigation and ADR techniques
E.            OK to rely on law students for people with limited means
F.            Disclosure of lack of experience may be a fiduciary duty
XI.           Lawyer as Agent
A.            Client is the principle; lawyer is the fiduciary, serving the client.
B.            Agency authorization (restaurant manager example)
1.             Express (buy food)
2.             Apparent (to 3rd party) – will still bind client to lawyer’s actions despite no express auth.
3.             Implied
C.            Power of Attorney
1.             ability to make decisions on another’s behalf
2.             does not need to be a lawyer
D.            Diminished Capacity – Rule 1.14
1.             Treat client as normal as much as possible
2.             If state of mind (drunk or crazy), wait for moment of lucidity to accept decision
3.             GAL, often an attorney
a)             As GAL, must act in best interest of kid
b)            As lawyer, must act as kid’s agent
c)             These are conflicting positions.
4.             The normal client lawyer relationship is based on the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters.  Children as old as 5-6 often have opinions that have weight.  See comments.