Professional Responsibility Outline

PROFESSIONAL RESPONSIBILITY OUTLINE
Hazlett – Summer 2010

I. REGULATION OF THE LEGAL PROFESSION

a. Introduction – Powers of Courts & Others to Regulate

· Entry into the legal profession and the conduct of lawyers once admitted are regulated by the highest court of each state. The courts of each state have the inherent power to regulate members of the legal profession for their conduct, both in-court and elsewhere.

o In MOST states, lawyer governance continues to be the exclusive province of the courts

· To exercise their authority, the courts have established admission and disciplinary machinery

o While most bar associations are voluntary, some jurisdictions require that lawyers join an official bar organization, which is then called an “integrated” or “unified” bar

o Even in states that have no official bar association, the courts often turn to the voluntary bar for assistance in staffing the disciplinary system

· Regardless of which system a state uses, the courts often fund the disciplinary system by taxing lawyers in the form of mandatory dues and fees.

· STATE COURTS: State supreme courts regulate the right to practice law even if the lawyer is solely an office counselor and never appears in court.

· FEDERAL COURTS:
o Federal courts separately regulate admission to practice before them, but a lawyer need not be admitted to a federal court unless he or she will be litigating there.
o Federal courts usually defer to state admission standards, and admission before a federal court is often close to automatic, although lately, some federal courts have been interested in asserting a more active role.
o As a practical matter, admission to the highest court of a state will ordinarily be sufficient to qualify for admission to the federal courts of that state
§ However, some courts have tried to justify different rules for federal litigators – for example, upholding special rules for membership in a federal trial bar

b. Admission to the Bar

i. CHARACTER & FITNESS FOR ADMISSION TO THE BAR

1. Purpose of Requirement:

a. Restatement: A license to practice law confers great power on lawyers to do good or wrong. Furthermore, clients and others are vulnerable to wrongdoing by corrupt lawyers. Thus, the central inquiry concerns the present ability and disposition of the applicant to practice law competently and honestly.

b. Professor Rhode:

i. Shielding clients from potential abuses, such as misrepresentation, misappropriation of funds, or betrayal of confidences

ii. Safeguarding the administration of justice from those who might subvert it through subornation of perjury, misrepresentation, bribery, or the like.

iii. Bar’s own interest in maintaining a professional community and public image

2. Examples:

a. Cheating can demonstrate a willingness to engage in misconduct as well as the dishonestly listed in Rule 8.4(c).

b. Felony convictions, although most states don’t automatically deny for felonies, has been used as a basis for denying admission to the bar. The more recent the felony, the more likely it will keep you from being admitted to the bar.

c. Dishonesty in handling money has been used as a basis for denying admission to the bar. This is a serious one because an attorney will be handling client money.

d. Filing for bankruptcy or maintaining low credit rating may reflect poorly on an applicant’s sense of responsibility to his creditors and a lack of moral values. However, courts also recognize applicant’s legal right to file bankruptcy. An applicant needs to show a good faith effort to meet financial obligations.

· Florida Board of Bar Examiners v. G.W.L.
o He exercised his legal right to be freed of debt by bankruptcy well before the first installments on his debt became due, with absolutely no regard for his moral responsibility to his creditors.

e. A drug conviction, in Kansas, might get you an interview with admission people just to see if there is a problem but probably not keep you from being admitted. The panel just wants to make sure up front that we don’t have someone coming into profession who is impaired.

f. A pattern of repeated offenses, even ones of minor significance when considered separately, indicates indifference to legal obligation.

· In re Hinson-Lyles
o Held, a former school teacher’s conviction of three felonies involving a sexual relationship with one of her 14-year-old students was sufficient to deny her admission to the bar because they were repeated offenses and she was in a power position – much like the position she would be in as an attorney.
o COUNTER-ARGUMENT:
§ It was just one relationship, specific to that student. Further, she would not be doing a lot of one-on-one work with 14-year-olds as an attorney

g. Conduct Protected by First Amendment: Conduct arguably protected by the First Amendment can be considered by the Commission because abusive, disruptive, hostile, intemperate, intimidating, irresponsible, threatening, or turbulent behavior is proper basis for denial of admission to the bar. For example, because such conduct demonstrates a lack of respect for the administration.

Fundamental truths’ of equality and nondiscrimination must be preferred over the values found in the First Amendment.

i. Rule 8.4(d): A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violated 8.4(d) when such actions are prejudicial to the administration of justice.

However, something like a trial judge’s finding that peremptory challenges were exercised on