Regulation of the Legal Profession
I. Regulation of the Legal Profession
A. In most states, lawyer governance continues to be exclusive province of courts.
B. Sources of law:
1. ABA Model Rules of Professional Conduct
a. Drafted and promulgated by ABA.
b. Do not have force of law unless adopted by state supreme court or a federal court.
c. Most states have adopted some version of the ABA Model Rules.
d. ABA Model Rules amended significantly in 2002 and 2003; some states have adopted amendments and some have not.
2. Restatement (3d) of Law Governing Lawyers
a. Not actual primary source of law; rather, secondary source that pulls together principles from many sources of the law governing lawyers (e.g., attorney-client privilege, principles of malpractice, etc.).
C. Model Rule 8.3 obligates lawyers to report professional misconduct.
1. Does not require disclosure of information otherwise protected by Rule 1.6.
2. Comment : Self-regulation of legal profession requires members of profession to initiate disciplinary investigation when they know of a violation of the Rules.
D. Model Rule 8.4: It is professional misconduct for a lawyer to:
1. Violate or attempt to violate the Rules;
2. Commit criminal act that reflects adversely on lawyer’s honesty, trustworthiness, or fitness as a lawyer;
a. Note that the standard is commit a criminal act, not be convicted.
3. Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
a. Need not be committed in course of practicing law.
4. Engage in conduct prejudicial to the administration of justice;
a. Need not be committed in course of practicing law.
5. State or imply ability to improperly influence government agency or official; or
6. Knowingly assist judge or judicial officer in violating rules of judicial conduct or other law.
E. Model Rule 1.6 governs confidentiality and what a lawyer may not disclose.
F. In a disciplinary proceeding, the committee has the burden to prove the violation of ethics or rules.
G. Other sanctions or regulatory matters affecting lawyers’ conduct:
1. Malpractice liability
2. Contempt of court sanctions (violation of court order, failure to show up in court)
3. Loss of fees for breach of fiduciary duty
4. Disqualification from representation of client due to conflict of interest
5. Ineffective assistance of counsel for criminal defendants – must show not only that lawyer’s conduct falls outside wide range of professionally competent assistance but also that the ineffectiveness caused actual prejudice (tough burden to meet)
6. Criminal liability – lawyer held criminally liable because his assistance goes beyond legitimate legal assistance and constitutes a crime
7. Voiding of particular transactions
8. Statutes, e.g., Fair Debt Collection Act
9. Sanctions for violations of court rules, like Rule 11 and Rule 37.
II. Admission to the Bar
A. Rule 8.1 governs admission to the bar:
1. Applicant shall not knowingly make a false statement of material fact.
2. Applicant shall not fail to disclose facts necessary to correct misapprehensions or knowingly fail to respond to lawful demand for information, unless that information is protected by Rule 1.6.
a. “Lawful” demand for information – attorney can assert Fifth Amendment right to silence, and mere assertion of Fifth Amendment right cannot be the basis for discipline or sanctions. Information may also be protected by Rule 1.6.
b. Attorney should still respond to inquiry and explain why he cannot answer.
B. Applicant has the burden of proof to affirmatively establish his character and fitness to practice law.
C. Obligation of candor and to not make a false statement of material fact on the character and fitness application.
1. False statement on bar application is grounds for disqualification or later disbarment.
2. When in doubt, disclose and explain – failure to disclose is much worse.
3. Attorney Grievance Comm’n v. Meyers: Lawyer disbarred for lying on his bar application about the number of traffic tickets he had received even though the driving record itself would not have justified denial of admission.
D. Other matters about which character and fitness examination may inquire:
1. Mental health issues
2. Dishonesty in handling of money
3. Drug and alcohol use/offenses.
a. Frasher: Record of three convictions for driving under the influence, along with other driving offenses, was enough to deny applicant admission to the bar.
E. Another area that gets applicants into trouble is unauthorized practice of law – will always result in inquiry and sometimes in denial of admission.
III. Lawyer Discipline and the Disabled Lawyer
A. Rule 1.3 obligates a lawyer to be sufficiently diligent and prompt.
B. Rule 8.1 applies to disciplinary proceedings as well as bar admission.
1. See II(A)(2) re: “lawful” request for information and disclosure.
C. Choice of Law: What rules apply if lawyer has committed violation in multiple states or is licensed to practice in multiple states?
1. Rule 8.5(a): Disciplinary Authority
a. Lawyer admitted to practice in this jurisdiction subject to disciplinary authority of this jurisdiction regardless of where conduct occurs.
b. Lawyer not admitted to this jurisdiction subject to disciplinary authority of this jurisdiction if he provides or offers to provide legal services here.
c. Lawyer may be subject to disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct.
2. Rule 8.5(b): Choice of Law
a. For conduct in connection with matter pending before tribunal, rules of jurisdiction in which tribunal sits apply (unless tribunal rules specify otherwise).
b. For any other conduct, rules of jurisdiction in which conduct occurred (or if predominant effect of conduct is in different jurisdiction) apply.
c. Safe harbor provision: Lawyer not subject to discipline if conduct conformed to rules of jurisdiction in which he reasonably believes pred
no malpractice liability for honest exercise of professional judgment.
1. But see Woodruff v. Tomlin (6th Cir. 1980): Lawyer’s failure to interview a potentially material witness was malpractice not protected by the professional judgment rule; without interviewing witness, lawyer had no basis on which to make that judgment call.
I. Duty to refer a case to a specialist generally the “reasonable lawyer” standard:
1. Horne v. Peckham: General practitioner has a duty to refer client to specialist or enlist assistance of specialist if under the circumstances a reasonably careful lawyer would do so.
2. Battle v. Thornton: In jurisdictions that do not certify specialties, malpractice standard is the ordinary lawyer, not persons who concentrate their practice in a given area of law.
J. Attorneys generally not liable to criminal defendants whose defenses they handled badly.
1. Ordinarily, element of suit for lawyer malpractice in criminal context is that convicted defendant must prove himself actually innocent of the charges, not just that a better lawyer would have obtained a not guilty verdict.
2. Only innocent persons wrongly convicted due to inadequate representation have suffered compensable injury.
3. R(3d) of Law Governing Lawyers §53, comment d: Not necessary under Restatement to prove actual innocence; but necessary for defendant seeking malpractice damages to have had his conviction set aside for some reason.
4. Levine v. Kling: Convicted defendant who is guilty but nonetheless had some “guilty in law” defense (e.g., double jeopardy, statute of limitations) has action for malpractice against defense attorney.
K. Things that are generally malpractice:
1. Failure to know the law
2. Failure to gain client’s consent
3. Conflicts of interest
4. Commingling client and firm funds
5. Promising more than can be delivered
6. Concealing mistakes
L. Breach of the Rules is not negligence per se, but it can be relevant and circumstantial evidence of a lawyer’s negligence.
M. Lawyers usually cannot make agreements prospectively limiting their potential liability to clients for malpractice.
1. See Rule 1.8(h).
2. R(3d) §54(2) (stating that such an agreement is unenforceable).
N. Vicarious malpractice liability for other lawyers at the firm:
1. Not a violation of Rule 1.8(h) to form an LLP or LLC in attempt to insulate other firm lawyers from liability.
The Lawyer-Client Relationship