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Professional Responsibility
University of Baltimore School of Law
Bourne, Richard W.

Professional Responsibility

Bourne

Fall2013

UNAUTHORIZED PRACTICE OF LAW (5.5)

I. Rule 5.5(a) prohibits a lawyer from assisting a nonlawyer in the unauthorized practice of law

a. Ex: In re Sledge: disbarred Sledge, a solo practitioner who largely left the cases in the hands of law clerks and other nonlawyers who used a rubber stamp to put the lawyer’s name on the pleadings, discovery responses and correspondence.

II. Unauthorized practice of law involves assisting another with a legal matter, not handling a matter for one’s self

a. “Every jurisdiction recognizes the right of an individual to proceed pro se…because the appearance is personal only. Restatement Third, The Law Governing lawyers § 4 c. d.

b. Regardless of the policies served, corporations are usually forced to hire lawyers.

b.i. The rule only applies in litigation; corporate officers may negotiate business deals.

III. Definition of “the practice of law”

a. “The practice of law related to the rendition of services for others that call for the professional judgment of the lawyer…[consisting of the lawyer’s educated ability to relate the general body and philosophy of law to a specific legal problem of the client.” ABA Model Code of Professional Responsibility, EC 3-5.

a.i. Ex: Preston v. Univ. of Ar. For Medical Sciences: Πs filed a medical malpractice suit. Π’s lawyers were from Ok. And they had not applied for pro hac vice admission. Held that the complaint was therefore a nullity; did not even toll the statute of limitations

a.ii. Does not include books or computer software programs, generally.

a.iii. Does not include blank forms that a layperson could reasonably fill out themselves.

IV. Fee Forfeitures

a. If a nonlawyer performs a service that is held to be the practice of law, the client often will be excused from paying the fees of the nonlawyer performed the work with no legal error

V. Attorney-Client Evidentiary Privilege

a. If a person talks to someone that he reasonably believes is a lawyer, conversations with that person are privileged even though the nonlawyer is engaged in the unauthorized practice of law

a.i. Privilege only covers communications made in confidence for the purpose of getting legal advice

MULTIJURISDICTIONAL PRACTICE OF LAW

I. Reciprocity: Many states automatically admit experienced lawyers who are licensed in other states if the state of licensing will do the same for other states’ lawyers.

II. Pro hac vice: If a litigator is not a member of the bar where the litigation is filed, he will file an appearance in court and ask to be admitted pro hac vice.

III. Federal Courts

a. In re Desilets citing Sperry held that states may not decide who may practice federal law in federal court

b. Lawyers practicing federal law are still governed by state discipline laws in some ways

IV. Restatement Third, The Law Governing Lawyers § 3

a. A lawyer may only act to the extent the lawyer’s activities in the matter arise out of or are otherwise reasonably related to the lawyer’s practice in the state in which the lawyer is licensed.

V. Rule 5.5(c) permit a lawyer to practice in a state on a temporary basis

VI. Rule 8.5 says that a lawyer who travels to another jurisdiction in handling a matter will be subject to the disciplinary jurisdiction of the state to which he travels.

VII. Corporate Practice of Law

a. Laws typically prohibit corporations from selling legal services

b. Rule 5.4 restricts lawyer’s participation in nonlegal corporations

c. One stop shops

c.i. Rule 7.2 says that the arrangement must be nonexclusive and that before making a referral to the other service provider, the lawyer should examine carefully whether his or her representation of clients may be materially limited by obligations to the other professional service provider

VIII. Non-Legal Ancillary Services

a. Rule 5.7

REGULATION AFTER ADMISSION

I. Misconduct (8.4) – catch all

b. 8.4(a) Violate or attempt to violate these Rules; assist or induce another or violate the Rules; use the acts of another person to commit a violation

c. 8.4(b) Commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer

d. 8.4(c) Conduct involving dishonesty, fraud, deceit or misrepresentation

e. 8.4(d) Engaging in Activity prejudicial to the administration of justice

e.i. Ex: knowing manifest bias

f. 8.4(e) State or imply influencing of government official by means that violate the Rules

g. 8.4(f) Knowingly assist a judge in violating the rules

II. Disciplinary Authority: Choice of Law (8.5)

a. Lawyer will be disciplined if this rule is violated

b. Three functions of professional discipline

b.i. Identify and remove deviant lawyers

b.ii. Deterrence

b.iii. Avoid public dissatisfaction

III. Requirements of Lawyers

a. Provide competent representation (1.1)

a.i. Requires legal knowledge, skill, thoroughness and preparation

b. Act with due diligence and promptness (1.3)

IV. Duty to Report Professional Misconduct (8.3)

a. Knows of a violation by another which substantially calls into question that lawyer’s trustworthiness

a.i. Also applies to violations by judge

a.ii. Exception for confidential information

a.ii.1. See Rule 1.6

b. Definitions

b.i. Knowledge means actual knowledge

b.ii. Substantial means “a matter of clear and weighty importance”

c. Sanctions is fail to report

ADMISSION TO THE BAR

I. Admission to Practice Law

a. Must receive a JD from an accredited ABA school (4)

b. Pass the bar exam (7)

c. Character and Fitness (5)

c.i. Burden of proof on applicant

c.ii. Need to be of good moral character

c.ii.1. Rationally related to fitness to practice law

c.iii. Moral turpitude is what is required to deny admission, merely conviction is not enough

c.iii.1. This includes adolescent misbehavior

c.iii.2. Rehabilitation, if proven, is sufficient for admission

d. Must take one day professionalism course (11)

II. Bar Admission and Disciplinary Matters (8.1)

a. 8.1(b) fail to disclose a fact necessary to correct a misapprehension known by person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information

b. 8.1(a) knowingly make a false statement

III. Reputation of the Bar

a. Sometimes, the Bar will keep people out because of reputation

a.i. Specifically people who have committed crimes of violence, possession of child porn, etc. even if they in no way relate to the practice of law

EXTERNAL CONTROLS

I. Malpractice

a. Additional Sanctions for Malpractice

a.i. Tort

a.i.1. Specialists or lawyers acting as specialists are held to a specialist standard

a.i.1.a. Otherwise, held to an ordinary lawyer standard

a.i.2. In criminal cases, only innocent people who are wrongly convicted may bring a claim for civil damages

a.i.2.a. Ineffective counsel is not enough to overturn convictions

a.i.2.a.i. Court must find actual prejudice was caused by acts or omissions

a.i.2.b. Otherwise, may bring claim for post-conviction relief

a.ii. Breach of contract

a.iii. Breach of fiduciary duty

b. Misconduct to Non-Clients

b.i. Breaching potential client’s confidentiality

b.ii. Not fulfilling testator’s will on behalf of beneficiaries

b.iii. When asked to investigate and report on facts to third party

b.iv. When aids a trust-like fiduciary to breach obligation to beneficiary

c. Burden of proof for Malpractice

c.i. Must present expert testimony

c.i.1. Court can waive this is totally obvious

c.ii. Violating a Model Rule of Conduct is only evidence of malpractice and does not give rise to malpractice

c.iii. Suit-within-a-suit

c.iii.1. Plaintiff bears burden of proving what client could have obtained had lawyer not been negligent

d. Remedies for Malpractice

d.i. Generally damages client would have received if lawyer was not negligent

d.i.1. Punitive damages may be awarded if egregious enough

d.i.2. Fee forfeiture without actual damage to client should be awarded with discretion

d.ii. Vicarious liability is limited by LLPs a

e fiduciary duty is fidelity: a lawyer is supposed to be true to his client

a. This includes loyalty and dedication

b. A related obligation is confidentiality

II. The relationship exists when the lawyer has done enough to create a reasonable expectation for the client to rely on the lawyer – this can be accomplished without lawyer’s intent

a. Model Rule 1.18

b. If this occurs, send a letter to explain that a relationship does not exist and what needs to be done for it to begin

III. Talk to the potential client in order to avoid any conflicts

a. This includes asking the name of the opposing party to ensure the firm is not representing that side currently or in the past

a.i. Model Rule 1.7, 1.8, 1.9, 1.10, 1.18

a.ii. Common law of disqualification – this is not related to discipline under the Model Rules

IV. Lawyer-client confidentiality is much broader than attorney-client privilege

a. Model Rule 1.6

Advising Clients

iv.1.I. 1.6 requires reasonable certainty as to future death or serious bodily harm before confidentiality can be breached

iv.1.I.a. When this is the case, you must report

Avoiding Complicity

I. It is the duty of the lawyer to perform his own investigation in order to make sure the client is abiding by the laws and not committing fraud.

a. This is also the case for when the client asks for the lawyer to give an opinion to a third party

II. If a client is relying on the lawyer in any way to further the fraud, the lawyer should disclose the information otherwise the lawyer’s knowledge can be seen as adding and abetting.

a. The Model Rules only require the lawyer to disclose this information if the lawyer was a participant. (1.6, 4.1)

b. Sarbanes-Oxley requires a lawyer to disclose the information regardless

III. When working for government entities, the Model Rules say that the lawyer represents the entity itself

a. Before violating confidentiality, the lawyer should know for certain that the boss is doing something wrong, otherwise the lawyer may be accused of violating the Rules

a.i. In this case, find the appropriate agency to inform when protecting the public interest (i.e. during Watergate, the lawyers went to Congressmen)

a.ii. When breaching confidentiality, only disclose as so far to explain the wrongdoing and nothing more (1.6)

Ethics of Negotiation

I. Rules 4.1 and 8.4 disallow a lawyer from participating in fraud or misrepresentation

a. If a lawyer has made a misrepresentation in the past that someone is materially relying on, the lawyer has a duty to fix the misrepresentation

b. Lawyers cannot tell half-truths (or rely on someone else’s ignorance)

II. Standards for prosecutors

a. Prosecutors cannot file a charge unless he believes there is probable cause to believe everything in the charge is true

b. Cannot resolve a case and convict unless he at least has a prima facie case with respect to every element of the offense for which the opponent is conceding guilt

c. Affirmative duty to give discovery information to the other side if exonerates them (Brady)

III. May not extort the other side (moral turpitude) during settlement negotiations

a. But the rules do permit anything that falls short of extortion, which may still include putting duress-style pressure on the other side