Professional Responsibility Outline

Chapter 2: Regulation of the Legal Profession
Admission to the Bar (ABA MR § 8.1 = Cal § 1-200)
Requirements
                                                               i.      Good moral character
1.       =the present ability and disposition of the applicant to practice law honestly and competently. Same test for discipline and bar admission. See ABA and California below.
2.       Why? Protect client, protect justice, protect the profession’s reputation.
                                                              ii.      Educational and knowledge standards
1.       most states require applicants to have graduated from an ABA accredited school. CA does not have this requirement.
2.       Passage of a bar examination
a.       MBE (multistate bar examination)
b.       Essay
                                                            iii.      Majority of states require applicants to pass the MPRE (multistate professional responsibility exam).
ABA
                                                               i.      Model Rules 8.1: Bar Admission and Disciplinary Matters
An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:
(a)     knowingly make a false statement of material fact; or
(b)     fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.
1.       Comment 1: bar applicants and lawyers are bound by this rule.
2.       Comment 2: bar applicants and lawyers can claim the fifth amendment (the right of nondisclosure).
3.       Comment 3: a lawyer representing a bar applicant or representing a lawyer who is the subject of a disciplinary proceeding is bound to follow the ABA Model Rule 1.6, which requires confidential information to be kept confidential.
California
                                                               i.      Rules of Professional Conduct 1-200: False Statement Regarding Admission to the State Bar
(A)     A member shall not knowingly make a false statement regarding a material fact or knowingly fail to disclose a material fact in connection with an application for admission to the State Bar.
(B)     A member shall not further an application for admission to the State Bar of a person whom the member knows to be unqualified in respect to character, education, or other relevant attributes.
(C)     This rule shall not prevent a member from serving as counsel of record for an applicant for admission to practice in proceedings related to such admission.
                                                              ii.      Statement on Moral Character Requirement for Admission to Practice Law in CA (handout)
1.       Applicant has the burden of establishing his or her good moral character.
2.       Applicant must presently possesses the good moral character necessary for admission to practice law in CA
a.       Evidence of applicant’s present possession of good moral character:
                                                                                                                                       i.      Candor and honesty
                                                                                                                                      ii.      Respect for the law and the rights of others
                                                                                                                                    iii.      Fiscal responsibility
                                                                                                                                    iv.      Records of fidelity and trustworthiness in other professions for which he or she is licensed.
b.       The Subcommittee on Moral Character makes the determination and considers the following
                                                                                                                                       i.      Recommendations and comments from present and former employers
                                                                                                                                      ii.      References supplied by the applicant are considered
                                                                                                                                    iii.      Fingerprint cards sent to CA Dept of Justice or FBI for processing
                                                                                                                                    iv.      Dept of Motor Vehicles is contacted
c.        Procedure
                                                                                                                                       i.      Applicant whose application is rejected because the Committee did not find the requisite good moral character can appeal to the State Bar Court.
                                                                                                                                      ii.      State Bar Court’s decision recommending certification or denial of certification for admission is binding on the committee. The committee does not have the right to appeal to the Supreme Court of CA. Applicant can appeal to the Supreme Court of CA.
d.       Acts of misconduct may include behavior that results in a criminal conviction, behavior that results in a sustained accusation of fraud or a sustained allegation of unauthorized practice of law, violations of a school’s honor code that involve moral turpitude or result in expulsion, professional discipline, license revocation or disbarment, material omissions from the moral character application, misstatements in the moral character applications and misrepresentations during informal conferences conducted by the Committee:
                                                                                                                                       i.      Persons who have been convicted of violent felonies, felonies involving moral turpitude, and crimes involving a breach of fiduciary duty are presumed not to be of good moral character.
1.       Possible to overcome this presumption with overwhelming proof of reform and rehabilitation including a lengthy period of not only unblemished but exemplary conduct.
2.       See FACTORS handout below for what the committee considers in determining whether past criminal activity is presently disqualifying.
                                                                                                                                      ii.      Past criminal activity, not including violet felonies, felonies involving moral turpitude, and crimes involving a breach of fiduciary duty, is not necessarily disqualifying if sufficient time has passed during which the applicant has demonstrated rehabilitation and respect for the law and rights of others. The amount of time and the extent of the rehabilitation will be dependent upon the nature and the seriousness of the criminal activity under consideration. See FACTORS.
                                                                                                                                    iii.      Drug and alcohol abuse and dependencies. If there appears to be a problem, the applicant may be asked to undergo an evaluation by a qualified professional chosen by the committee.
1.       In instances where there is evidence of a present dependency or an applicant has not established a track record of recovery, the Committee, in lieu of certification, may offer the applicant the opportunity to place his or her application in abeyance for a specified period of time while agreed to conditions regarding treatment and recover are initiated and confirmed.
2.       A determination that an applicant has not met the burden of establishing current good moral character will not be based solely on whether the applicant is afflicted with the disease of substance dependency.
3.       In cases where an applicant continues to consume mood altering substances in spite of a diagnosis of dependency or the refusal of an applicant to follow a treatment plan, the Committee may see such behavior as reflective of current character and the Committee may conclude that the applicant has not met the moral character requirement.
                                                                                                                                    iv.      Indebtedness alone is not considered by the Committee as relevant to moral character. The fact that an applicant has filed BK does not reflect on moral character. However if indebtedness is being handled irresponsibly or if BK was resorted to in an effort to defraud creditors, moral character issues may arise.
3.       Factors That May Be Taken Into Consideration When Evaluating The Rehabilitation of An Applicant Seeking a Moral Character Determination: the factors are guidelines that may be taken into consideration when evaluating whether an applicant has demonstrated rehabilitation. Each factor does not necessarily carry equal weight.
a.       The nature of the act of misconduct
                                                                                                                                       i.      Involved moral turpitude
                                                                                                                                      ii.      Aggravating or mitigating circumstances
                                                                                                                                    iii.      Isolated event or part of a pattern
b.       Age and education of the applicant at the time of the act and the age and education of the applicant now.
c.        Length of time that has passed since the act of misconduct
                                                                                                                                       i.      Any other involvement in moral turpitude in between this act and the present
                                                                                                                                      ii.      Extent of rehabilitation
d.       Restitution to any person who has suffered monetary losses because of the act
e.        Expungement of a conviction
f.        Successful completion or early discharge from probation or parole.
g.        Abstinence from the use of controlled substances or alcohol for not less than two years if the specific act of misconduct was attributable in part to the use of a controlled substance or alcohol.
                                                                                                                                       i.      Abstinence may be demonstrated by, but not limited to, enrolling in and complying with a self help or professio