1. The Regulation of Lawyer **SEE CHART 147-149**
A. Institutions that Regulate Lawyers **SEE CHART ON P. 36**
1. The Highest State Courts
1. The Responsibility of Self Regulation
a. Is the legal profession unique in having the responsibility to regulate itself?
i. No physicians, insurance agencies, etc also do
b. Is it a good idea to give lawyers a dominate role in regulating their profession.
i. Self-regulation is beneficial in that it provides the legal profession with some independence from the state. This is important because lawyers often challenge governmental actions in the course of representing clients. If lawyer were subject to greater control by state they might be restricted in representing clients whose interests are adverse to the state.
c. How do state courts regulate lawyers
i. Adopts ethics codes and court procedural rules that govern lawyers
ii. Sets and implements standards for licensing of lawyer including educational and moral character requirements
iii. Supervises agencies that investigate and prosecute complaints of unethical conduct by lawyers.
iv. Supervises administrative judicial bodies that impose sanctions on lawyers who violate the ethics code.
2. The Inherent Powers Doctrine
a. Legislative branch- passes statutes that apply to lawyers
b. Executive branch- Adopts and implements some regulations and policies that apply to lawyers
c. Judicial Branch- Makes the law by adopting ethics codes, implements the law through delegation to bar associates and other agencies and interprets the law through court decisions.
a. Why are courts mainly responsible for regulation of lawyers
i. Courts need the authority to govern the conduct of those who come before them.
b. Can the legislature pass a bill to change a court rule as it does when it wants to change the common law
i. Not everywhere
2. State and Local Bar Associations
1. A state bar that accepts delegated functions from that states highest court is called and integrated or unified bar rather than a voluntary bar. In unified bars membership is mandatory.
3. The American Law Institute
1. The American law institute is a private organization of 3000 judges, lawyers and law teachers that produces summaries of the law called restatements.
2. Is the restatement consistent with the model rules?
a. Not always. But when they are different the comments usually note inconsistencies
3. When a state ethics rule and the Restatements are inconsistent, should a lawyer always follow the state rule.
a. If a state ethics rule clearly requires or prohibits certain conduct in most cases a lawyer should follow the rule.
b. If the lawyer finds the text of the states ethical rule does not provide clear guidance they must seek additional sources such as the commentary of the restatement.
4. Federal and State Trial Courts
1. Is a member of a state bar automatically allowed to practice in federal courts of the state.
a. No, Each federal district court and court of appeals requires lawyers to be admitted to practice before it. Applicants for admission to practice in the federal courts are not required to take another bar exam. Usually just pay fee.
1. At least 40 states have statutes that make it a criminal offense to engage in the unauthorized practice of law UPL, and at least four impose felony sanctions for some UPL offenses.
a. Are lawyers who testify at legislative hearings or meet with legislators on behalf of clients required to comply with additional statues and regulations?
i. Yes, Federal law imposes additional conflict of interest rules on those who engage in lobbying and requires a separate registration process for lobbyists who represent foreign nations.
6. Administrative Agencies
1. Do lawyers need separate admission to practice before an administrative agency.
a. Lawyers often represent clients in administrative adjudicative or in agency rule making proceedings. In general lawyers admitted to practice in any state may appear before an agency of that state, and before anyfederal agency without a separate admission to practice before the agency.
2. Do administrative agencies impose additional ethical or procedural rules on lawyers who appear before them.
a. Many agencies have special ethical or procedural rules. Some federal agencies including the SEC require lawyers who appear before them to comply with their administrative regulations.
1. Prosecutors have much discretion as to whether to file charges against a particular defendant. As a result of Watergate, lawyers are no longer afraid to prosecute other lawyers.
8. Malpractice Insurers
1. There are risk management and loss prevention measures designed to reduce the likelihood that a lawyer or a law firm will be held liable for malpractice. Many of these policies also promise compliance with ethical rules.
2. Some malpractice insurers provided advice to lawyers at the firms they insure about ethical or professional dilemmas that could turn into lawsuits or disciplinary proceedings.
3. These companies in effect regulate their clients (lawyers they insure).
9. Law firms and other employers
1. Large corps may have policies for their attorneys.
2. Firms & some Governmental agencies have stricter rules.
B. The State Ethics Codes -39
1. ABA adpoted its first set of Canons of ethics in 1908
1. When was the old ABA model Code replaced by the current ABA mode rules -40
a. 1977 revision
b. 1997 another revision took place
c. ethics 2000 commission
d. 2008 34 states and DC complete the adoption.
2. What are the functions of the state ethics code
a. To guide lawyers in evaluating what conduct is proper in various situations and
b. To provide a basis for disciplining lawyers who violate the rules.
c. Courts also consult for determining whether a lawyer has engaged in malpractice, charged an unreasonable fee, or should be disqualified from representation.
3. Do judges have ethical rules
a. Yes ABA adopted cannons of judicial ethics in 1924. The code was updated in 72 and 97 and has been adopted by most states.
4. Do other ethics codes apply to lawyers in specialized practice areas?
a. Yes various bars have them
5. Besides the ethics codes, the disciplinary cases, and the advisory ethics opinions, what other bodies of law govern lawyers. -43
a. There is a large body of case law. Motions to sanction etc, there are also a large number of statues.
C. Research on ethics law
1. There are lots of websites and p
i. Ignore conflicts
ii. Sue for former client for an unpaid fee.
f. Remedies for malpractice
i. Lawyer may pat damages for harm caused by malpractice, but it also could order compliance of a legal document or other remedies.
g. What fiduciary duties are owed by a lawyer to a client
i. Safeguarding the clients confidences and property
ii. Avoiding impermissible conflicting interests
iii. Adequately informing the client
iv. Following instructions of the client
v. Not employing adversely to the client powers arising from the client-lawyer relationship.
h. Elements of a claim for breach of fiduciary duty?
i. But for the lawyers misconduct, the plaintiff would have obtained a favorable judgment.
ii. A lawyer could be sued criminally and civilly. To a prospective client and people who are intended to be beneficiary of the lawyers work for a client such as those who will inherit assets under a will drafted by the lawyer.
2. Malpractice Insurance -134
1. Lawyers not typically required to have. Most do though
2. Most states required to disclose insurance.
3. Some mistakes not covered -135
a. Intentional acts, including fraud or other dishonest conduct (like billing or expense fraud)
b. Order restitution of legal fees, fines, or penalties
c. Conduct of lawyer in other roles
d. Intra firm disputes.
3. Other civil liability -136
1. Liable for
a. Advising or assisting unlawful client conduct
e. Breach of contract
f. Violation of regulatory statutes.
2. Liability for breach of contract
a. Contracts negotiated by lawyers etc
3. Liability for violation of regulatory statutes
a. Must comply with regulations
4. Disqualification of Conflicts of Interest deciding motions disqualify lawyer do courts simply interpret ethical codes?
1. No, courts are influenced but do not follow most of them follow their own common law standards.