Legal Professions – Spring 2013 – Taylor
1) Gates to the Profession
a) Law as a Profession
i) In 1887, AL adopted principles of the legal profession for the first time and adopted the nation’s first mandatory code of professional conduct.
ii) In 1908, the ABA instituted the Canons of Professional Ethics in 1908, serving as an inspiration for similar adoptions in other jurisdictions.
iii) Today, every state has a code of professional conduct that defines what is required of lawyers practicing in that jurisdiction. The ABA’s Model Rules provide persuasive suggestions to the jurisdictions.
b) What is a lawyer as defined by the ABA?
ii) Representative of the client (Counselor / Advocate)
iii) Officer of the Court (Access to the court system that others don’t have; obligation to uphold certain values)
iv) Citizen, with a special responsibility for the administration of justice
2) Becoming & Being a Lawyer
a) Summary of Basic Requirements:
i) Graduation from law school
ii) Pass bar
iii) Pass MPRE
iv) Character & Fitness
v) Take oath
b) Basic Requirements to be an Attorney
i) Graduation from Law School: Most states require admission from an ABA-accredited law school.
(a) Subject all candidates to a uniform objective evaluation; and
(b) Ensures that candidates can apply legal principles quickly and correctly to novel fact situations.
(a) No Law Degree: Some states (notably, California) have exceptions for no law degrees. E.g., apprenticeships w/attorneys or work in the law and attendance at an accredited law school.
(b) Foreign Law Degrees: The candidate must have gained familiarity with the fundamentals of American law due to his education and work experience. Fundamentals of American law includes (Osakwe):
(i) General Evaluation: “Equivalent legal education” (based on exposure to CL); and have to know how to find and analyze cases; the CL’s topical division of the law; principles and reasoning; basic rules.
(ii) Particular Evaluation: Exposure to actual American laws (substantive/procedural).
1. E.g., American Const’l law; federal cts and jurisprudence; the UCC, etc.
ii) Pass the Bar Exam
(b) Multistate Exam Section (Multiple Choice)
(2) Exception: WI – Graduates of in-state law schools don’t have to take the bar exam. Still have character and fitness test.
(3) Mutistate Performance Test (MPT): A requirement in 32 states. Applicants have to complete a common lawyering task (e.g., memo to another attorney, making a will, letter to the client) using the info contained in fake client documents (e.g., transcripts, interviews).
iii) Pass the Multistate Professional Responsibility Exam (MPRE)
(1) 50 Multiple Choice Questions about Ethics
(a) Class not taught to MPRE
iv) Character & Fitness Test: An applicant for admission to the bar must have the present good moral character to practice law.
(1) What to Do
(a) Disclose everything. Err on the side of caution.
(b) Be careful in law school – Bar places considerable emphasis on bad conduct in school.
(2) Common violations:
(a) Lack of candor
(i) Lying or withholding information on Bar Application
(ii) Worst thing an applicant can do is lie about past misconduct
(iii) ABA Model Rule 8.1(a): An applicant for admission to the bar, or a lawyer in connection with a bar admission application, must not knowingly make a false statement of material fact.
(b) Financial irresponsibility
(c) Criminal convictions
(i) To cause disqualification of an applicant, the crime in question must involve moral turpitude, such as a crime involving intentional dishonesty for the purpose of personal gain (e.g. forgery, bribery, etc.) or a crime involving violence (e.g. murder, rape, etc.)
(d) Conduct during law school (Bar focuses on most recent actions)
(a) Candidates can show rehabilitation for past misconduct evidencing a lack of character to practice law. Better be real genuine and sufficient to show rehabilitation given the nature and proximity of the misconduct. There must be a nexus b/w the alleged rehabilitation and the misconduct.
(a) Detailed Questionnaire
(i) Types of Questions Asked
1. Even if no record was ever made, have you ever been warned, reprimanded, or disciplined in any form for any reasons at any post-secondary school, college, or university?
2. Have you ever been issued a summons, charged, arrested, or cited for any alcohol or controlled substance related offense?
3. Ever been arrested for any crime, including traffic violations?
4. Credit history
5. Failed to file taxes?
6. Diagnosed with or treated for schizophrenia or other psychotic disorder, bipolar disorder, impulse control disorder (kleptomania, pyromania…), paraphilia?
7. Currently have any disorder or condition that in any way impairs my ability to [practice law]?
(c) Hearing (if question concerning applicant’s moral fitness)
(5) Steps of Denial
(a) Character and Fitness Committee
(b) Bd. of Law Examiners
(c) State Supreme Court
(a) Conditional admission (allow to take the bar examination, but automatically on probation or suspension for a certain period of time);
(b) Denial of the application (can reapply for next exam or state Sct can require a longer period from which the applicant cannot reapply)
v) Take the Oath of Office
c) The Rules Governing Competence & Misconduct
i) Rule 1.1: Competence: When representing a client, a lawyer must act competently (i.e. w/ legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation).
(1) What is competence? – 1.1, Cmt 1: Specific knowledge about the fields of law; general experience; complexity and specialized nature of the matter; proper preparation; attention to details and schedules necessary to sure task is completed; lawyer must develop strategy, gather sufficient facts, etc.
(2) How can clients express dissatisfaction?
(a) Don’t recommend attorney
(b) Don’t use attorney again
(c) Fire the attorney
(d) Actively bad-mouth the attorney
(e) Report the attorney to the disciplinary authorities
(f) Sue the attorney
(3) How can a lawyer be disciplined / damaged by incompetent lawyering?
(a) Employers can withhold raises, promotion, etc.
(b) Judge can order things of lawyer he thinks is incompetent (more affidavits, tighter schedule, etc.)
(c) Press can run stories about an attorney being incompetent, dishonest, etc.
(d) State bar can disbar, suspend, give probation, impose monetary fees, publicly reprimand, etc. attorneys
ii) Rule 1.3: Diligence: A lawyer must act with reasonable diligence and promptness in representing a client.
(1) Work with zeal on client’s behalf despite obstacles, difficulty, or inconvenience – 1.3, Cmt 1
(2) Promptness – 1.3, Cmt 3
iii) Rules Regulating Misconduct
(1) Rule 8.4(a): Violation of the Rules of Professional Conduct: It is professional misconduct for a lawyer to: (i) violate or attempt to violate any of the Rules, (ii) knowingly assist or induce another person to violate the Rules, or (iii) use the acts of another person to commit a violation.
(2) Rule 8.4(b): Certain Criminal Acts: A lawyer is subject to discipline for committing a criminal act that reflects adversely on his honesty, trustworthiness, or fitness as a lawyer in other respects. (e.g. crimes involving dishonesty or breach of trust, violent crimes)
(3) Rule 8.4(c): Dishonesty, Fraud, Deceit, or Misrepresentation: Any conduct involving dishonesty, fraud, deceit, or misrepresentation constitutes professional misconduct. (e.g. cheating on bar exam, plagiarism, impersonating someone else, defrauding one’s own law firm)
(4) Rule 8.3(a): Duty to Report Professional Misconduct: A lawyer who knows that another has violated the Rules in such a way that it raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer must report the violation to the appropriate professional authority.
(a) Rule 8.3: Sanctions: A lawyer who fails to report this type of misconduct is himself subject to discipline for violating the rule requiring disclosure.
(5) Disciplinary Process: (1) Begin with complaint with bar, (2) Screening the complaint, (3) Screen, attorney will be asked to respond if claim has merit, (4) further investigation, (5) Dismiss the complai
ffice. But these non-presence contacts may require greater showings on the other factors, i.e., greater numbers of contacts w/the client in the state.
3. Subject matter – More likely a representation in the state if it concerns that state’s laws and events occurring in that state. Less likely if it concerns laws or events outside that state.
(c) Applies Wherever You Are – Attorneys cannot violate the rules regulating the legal profession in anywhere they practice. If they do, then they violate the MRs in their home state as well. This applies to any of the MRs.
(d) Suspended or Disbarred Attorneys
(i) A disbarred or suspended attorney cannot practice law in anyway, even by helping people fill out forms, advise them on which ones are the rights ones to file, etc.
(ii) A lawyer who hires or supervises a disbarred or suspended is liable, Rule 5.5(a)
(e) Assist Another – It is a violation of 5.5(a) to help another attorney violate the MRs in any jurisdiction, or to assist a non-attorney in engaging in the UPL.
(2) Barred Activity Under Rule – 5.5(b): Attorney not licensed to practice law in jurisdiction cannot:
(a) establish an office or other systematic and continuous presence in this jurisdiction for the practice of law, except as authorized by these Rules or other law – 5.5(b)(1); or
(i) Fact Specific Inquiry Interpreted by Court
(b) hold out to the public or otherwise represent that he is admitted to practice law in the jurisdiction – 5.5(b)(2)
(3) Permissible (Temporary) Activity Under Rule – 5.5(c): An attorney admitted in another US jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction if:
(a) #1: Association with a Local Lawyer – 5.5(c)(1)
(i) A lawyer may practice on a temporary basis in a state in which he is not admitted if he associates a local lawyer who actively participates in the matter.
(ii) Must share responsibility – Cmt 8
(b) #2: Special Permission to Practice in Local Tribunal (Pro Hac Vice) – 5.5(c)(2)
(i) A lawyer can ask a court to grant the him official permission to appear in a case pending before the court
(ii) A lawyer who reasonably expects to be admitted pro hac vice may engage in preliminary activities in the state, such as meeting with clients, reviewing documents, and interviewing witnesses.
(iii) By order – judge has the discretion to grant or deny.
(c) #3: Mediation or Arbitration Arising Out of Practice in Home State – 5.5(c)(3)
(i) A lawyer may mediate, arbitrate, or engage in another form of ADR in a state in which he is not admitted to practice if his services are out of, or are reasonably related to, his practice in the state in which he is admitted.
(d) #4: Other Temporary Practice Arising Out of Practice in Home State – 5.5(c)(4)
(i) Catch-all category that permits a lawyer to temporarily practice OOS if the lawyer’s OOS practice is reasonably related to lawyer’s home-state practice.
(ii) Factors (arise out of or are reasonably related to) – 5.5, Cmt 14
1. The attorney previously represented the client;
2. The client may be a resident of or have substantial contacts w/ the attorney’s home state;
3. A significant matter in the home state may involve the law of the other jurisdiction, events may have occurred there, or other significant aspects of the matter occurred in the other jurisdiction;
4. Special rule for disasters – see Cmt 14