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Professional Responsibility
University of Baltimore School of Law
Diamond, Claudia

Diamond, Professional Responsibility, Fall 2013

I. Rule 8.1 (Bar Admission and Disciplinary Matters)

a. Applicant for admission to the bar or lawyer in connection with a bar application or in connection with a disciplinary matter, shall not:

i. (a) knowingly make a false statement of material fact; or

ii. (b) fail to disclose

1. a fact necessary to correct a misapprehension known by the person to have arisen in the matter,

2. or knowingly fail to respond to a lawful demand for information from an admissions

3. or disciplinary authority, except info protected by 1.6

iii. Comments:

1. Duty imposed by this rule extends to those seeking admission to the bar as well as lawyers. Applies to a lawyerʼs own admission or discipline as that of others.

2. Rule is subject to the 5th amendment, but person relying on those protections must do so openly

3. Lawyer representing an applicant for admission to bar or lawyer subject to discipline is governed by the rules applicable to the client-lawyer relationship, including Rule 1.6 and in some cases 3.3

b. Notes

i. Cant make false statement

ii. Statement material if necessary to MD Bar iot determine fitness

II. Ethical Dilemma for Lawyers

a. Case

i. Spaulding

1. Facts

a. P got aneryusm from car accident

b. Defense counsel finds out, didn’t tell P b/c P could have found in discovery

III. Origin of Rules / Governance of Lawyers

a. ABA

i. Model Rules

1. Came from Watergate

b. MD Rules

c. Statutes

d. Federal Civil Rules

e. Court of Appeals has exclusive jurisdiction for lawyer disciplinary matters

IV. Admission to The Bar

a. Requirements

i. Edu

1. ABA accredited law school in MD

ii. Bar Exam

iii. Character and Fitness

b. Cases

i. Hamm Case

1. Facts

a. Reformed Murder

b. Denied Bar admission

c. Failed to establish good moral character

i. Murderer

ii. Never paid child support

iii. Failed to disclose DV incident

iv. Plagarized in appeal

ii. M.A.R. Case

1. Facts

a. Didn’t pay child support

b. Bad checks

c. DUI / Probation

d. Didn’t pay taxes

e. False affidavits

f. UPL

2. BLUF – Be proactive in clearing things up

iii. Hale Case

1. Facts

a. Neo Nazi not admitted to practice law

iv. Kepple Case

1. Facts

a. Lied about WV residency to get instate tuition, ratted out by ex husband

b. Practiced law successfully for 14 years

c. Violated 8.1A

V. Rule 8.4 – Misconduct

a. It is professional misconduct for a lawyer to:

i. (a) violate / attempt to violate, or assist / induce another to violate the Rules, or to do so through the acts of another;

ii. (b) commit a criminal act that reflects adversely on lawyerʼs honesty, trustworthiness, or fitness as a lawyer;

iii. (c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;

iv. (d) engage in conduct that is prejudicial to the administration of justice

v. (e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the rules or other law; or

vi. (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.

b. Comments:

i. Lawyers are subject to discipline when they violate or attempt to violate the rules.

ii. Distinction made between laws involving “moral turpitude” – including non-criminal acts concerning matters of personal morality. Only those acts involving characteristics relevant to the practice of law matter. These include offenses

1. involving violence

2. dishonesty

3. breach of trust

4. serious interference with the administration of justice

5. Repeated minor offenses can indicate indifference to legal obligations

iii. Lawyer who knowingly manifests bias or prejudice violate paragraph (d) when those actions are prejudicial to the administration of justice.

c. Other Aspects:

i. Conduct that may face Discipline:

1. Conduct that has nothing to do with the practice of law

2. Conduct that is dishonest or prejudicial to the administration of justice or reflects a lack of fitness to practice.

3. Misconduct while serving in an elected or appointed govʼt position (Nixon was disbarred, and President Clinton was suspended)

4. Criminal Activity. May face criminal prosecution and professional discipline (though generally criminal prosecution will be determined first). May face professional discipline even if no charges are filed.

5. Misconduct of an employee

6. Misconduct outside of state of licensure

7. MD, CA, and DC allow for discipline of any lawyer who violates a rule of the jurisdiction, regardless of whether the lawyer is licensed to practice in that state

8. If a Lawyer is disbarred in one state, she must report it to other states in which she is licensed, and usually receives “reciprocal discipline”

d. Notes

i. Violation of any other rule is an automatic violation of 8.1A

VI. Unauthorized Practice of Law (MD Statute 10-101(h))

a. Practice of Law =

i. Represent another dude in unit of state govt or political subdivision

ii. Doing any service court of appeals defines as practice of law

b. Practice of law includes

i. Advising in administration of probate estate of decedents in orphans court

ii. Preparing instrument that affects title to real estate

iii. Preparing or helping in prep of any form / document that is filed in a court of affects a case that is or may be

atch all provision)

iv. (d) A lawyer admitted in another US jurisdiction or foreign land who is not disbarred / suspended in any jurisdiction may provide legal services that:

1. (1) in house counsel

2. (2) are authorized by federal law or law of the jurisdiction

v. (e) Representing Entities in another state on a “continuous” OR “temporary” basis.

1. A lawyer in good standing may represent her organizational employer throughout the country. (e.g., in house counsel can represent the corporation in states where they’re not licensed to practice law.) Can’t represent the organization in court, however, unless you also seek pro hac vice status.

2. A lawyer in good standing may provide legal services in a jurisdiction where she is not licensed if authorized by federal or other law. (e.g., you provide legal services to a federal agency.)

e. Cases

i. Birnbower (out of state lawyer)

1. Facts

a. NY law firm represented client in Cali for arbitration

b. Client refused to pay

2. Issue

a. Did firm UPL iaw with cali law?

3. Holding

a. UPL

b. Must be barred in state

c. Even if advising from out of state, still advising on cali matters

ii. PA ethics Committee

1. Facts

a. Chick with law degree from former USSR gets LLM in US and passes bar.

b. Initially not admitted

2. Holding

a. B/c she is admitted in Fed immigration ct, PA admits her to do only immigration law

b. Cant do anything else

iii. Augustine Case

1. Facts

a. Lawyer in MA represents women in Vet Admin Claim in cali

b. Fee shifting statute in place

c. VA refuses to pay b/c Lawyer not barred in cali

2. Holding

a. Lawyer barred in Fed Ct in Mass

b. VA ct is purely federal scheme

c. Gets money

f. Rule 8.3 (rat rule)

i. (a) Lawyer who knows that another lawyer has committed a violation that raises a substantial question as to the lawyerʼs honesty, trustworthiness, or fitness as a lawyer shall inform appropriate professional authority.

ii. (b) Lawyer who knows that a judge has committed a violation shall inform appropriate authority

iii. (c) Rule does not require disclosure of info under 1.6 or info gained while participating in an approved lawyers assistance program