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Legal Profession
St. Louis University School of Law
Needham, Carol A.

 
Legal Profession Outline
 
I.                   Regulation of Attorneys
A.    Who regulates
1.      States: regulates all aspects of the practice of law (can copy or not copy ABA model rules)
2.      Attorneys: have ethical obligation to aid in regulation
a.      Affirmative duty—must report serious violations of ethics (violations which raise serious questions about another lawyer’s honesty, trustworthiness and fitness)
1)      Triggered by knowledge, not rumors
                                                                                                                          i.      But if rumor can report if he wants to
                                                                                                                        ii.      If knowledge have to report even if you could be fired (e.g. NY)
2)      Does not apply to information gained in AC-privilege
3)      Himel: If information is privilege, no obligation to squeal but here A-C had been waived
B.     Who may practice law in a state
1.      State may restrict practice of law to those who are a member of the bar of that state
a.      If lawyers wants to be able to represent individuals in other states, then needs to have co-counsels in other states to avoid this problem
b.      If litigating a matter, apply for pro hac vice status (see below)
2.      Out-of-state attorneys
a.      Pro hac vic—ability of out of state attorneys to appear in the state with the permission of the court for that state
1)      Completely discretionary with the court: no lawyer has a right to be granted this status and no client has a right to insist they should be given this
3.      Permissible standards for admission to bar—must be rationally related to fitness to practice law (can’t deny admission to someone living with someone)
a.      Educational qualifications always upheld—graduation from accredited law school, etc
b.      Testing qualification always upheld—requirements for bar exams, etc.
c.       Citizen qualification are not allowed—U.S. citizen requirement or state citizenship requirement not allowed
d.      States may limit admission to those of good moral character—bad moral character shown by acts of moral turpitude (lying, stealing, fraud)
e.       State cannot deny admission because of a person’s political beliefs
1)      Exceptions: may deny admission for refusal to swear allegiance to the constitution of the United States, may deny admission if a person affiliates with an organization knowing of its illegal objectives and with the specific intent of furthering those objectives
f.       Bar may deny admission for refusal to answer bar questions, for concealing information or for making false statements
g.      Burden is on applicant to show good character and fitness by clear and convincing evidence 
C.    Bar has duty to prevent the unauthorized practice of law
1.      What is the unauthorized practice of law
a.      Appearing in court
1)      Exceptions:
                                                                                                                          i.      Student practice rules—law students under supervision of an attorney
                                                                                                                        ii.      Individuals (but not corporations) may appear in court to represent themselves—pro se representation
                                                                                                                      iii.      JAG—person can represent anyone in the army regardless of state they are from or place of dispute
b.      Drafting legal documents
1)      Exceptions
                                                                                                                          i.      Person can draft form for himself
                                                                                                                        ii.      Person can fill in blanks on form lawyer drafted
c.       Giving legal advice—applied with perspective of reasonableness and custom; if customary that it’s the kind of advice lawyers give, it’s unauthorized
d.      Most jurisdictions don’t allow unauthorized practice of law
e.       Consequences of unauthorized practice of law
1)      Don’t get fees
2)      Discipline under Rule 5.5
3)      Criminal prosecution (usually reserved for lawment)
2.      Responsibilities of an attorney
a.      Attorney cannot aid non-attorney in conduct that constitutes unauthorized practice of law
1)      Lawyer may help non-lawyer represent himself in court
2)      Lawyer cannot help non-lawyer represent someone else
b.      Attorneys may not practice in jurisdictions where they are not admitted
c.       Attorneys cannot split legal fees with non-attorneys
1)      Exceptions:
                                                                                                                          i.      Payments to estates of deceased lawyers
                                                                                                                        ii.      Lawyer cannot help non-lawyer represent someone

lawyer believes with adequate study (s)he can become competent to handle the case
2)      If lawyer hires competent co-counsel to handle matters where lawyer is not competent
C.    When must/may an attorney withdraw
1.      Once a matter is in litigation withdrawal requires court permission whether justification for withdrawal is mandatory or permissive—court will balance justification for withdrawal with hardship to parties and system for allowing withdrawal
a.      If far in advance of trial, only minimum justification is necessary
2.      Circumstances where attorney MUST withdrawal:
a.      If it’s obvious client’s primary purpose is to delay or harass
b.      When representation would require a violation of the law or disciplinary rule
1)      Merely asking does not require withdrawal
2)      Lawyer cannot assist the client in illegal action (assistance can be knowingly drafting a fraudulent document or even suggestion how the wrongdoing can be concealed)
c.       When the attorney’s mental or physical health makes it unreasonably difficult for lawyer to provide effective representation
d.      When the client fires the lawyer
1)      Generally can occur at any time for any reason or no reason. 
2)      Exception: termination of court-appointed attorney requires permission from the court
3.      Permissive withdrawal
a.      Client pursues a course of action that the attorney believes is criminal or fraudulent
b.      Client has used the attorney’s services to perpetuate a crime or fraud
c.       Client insists on pursuing an objective that the attorney regards as repugnant or imprudent
d.      Client disregards an agreement regarding fees or expenses AND attorney has given a reasonable warning
e.       Where representation will result in an unreasonable financial burden on the attorney or has been rendered unreasonably difficult by the client
f.       Client freely assents to attorney’s withdrawal
4.      Requirements when the attorney withdrawal
a.      Attorney must give client timely notice and opportunity to get another attorney