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Legal Profession
University of Mississippi School of Law
Roy, Lisa Shaw

Legal Profession
Roy – Spring 2010
Outline
 
1.      Introduction to the Legal Profession
a.      Sources of Law Governing Lawyers
                                            i.      Professional Responsibility Codes
1.      ABA Model Rules of Professional Conduct (Model Rules)
a.       Adopted 1983
b.      Contains almost exclusively mandatory rules and commentary
2.      ABA Model Code of Professional Responsibility
a.       Adopted 1969
b.      Predecessor to the Model Rules
c.       Composed of ethical considerations (ECs: aspirations for lawyers) and disciplinary rules (DRs: mandatory rules)
d.      5 jurisdictions still follow; largest is New York
                                          ii.      Legislation
1.      Generally left to state supreme courts
2.      Rules 11 and 26(g) of the US Code of Civil Procedure permit penalties for lawyer abuse for legal procedure
3.      A number of provisions limit attorney’s fees that lawyers can charge for types of legal work
                                        iii.      Ethics Opinions
1.      The ABA issues ethics opinions in response to questions for lawyers
a.       They do not have the effect of law, but occasionally are cited by bar associations or courts that are considering discipline of a lawyer
                                        iv.      Restatement (Third) of the Law Governing Lawyers
1.      American Law Institute published this in 2000
                                          v.      Tort Law
1.      Lawyers are subject to professional malpractice liability for failure to exercise reasonable care on behalf of clients
                                        vi.      Agency Law
1.      Lawyers act as agents of their clients; covered by selected sections of Restatement of Agency Law that provide illustrations applying agency principles to conduct of lawyers
b.      Admission to the Practice of Law
                                            i.       Bar Admission
1.      Must be admitted to the bar to practice law
2.      Admission is typically controlled by state supreme courts;
3.      Common Requirements:
a.       Undergraduate and law degrees
b.      21 years of age
c.       Take an oath
d.      Pay a fee
e.       Pass bar exam and a character review
                                          ii.      Rule 8.1 – Bar Admission and Disciplinary Matters
1.      An applicant for the bar, or a lawyer in connection with admission shall not:
a.       Knowingly make a false statement of material fact, or
b.      Fail to disclose a fact necessary to correct a misapprehension, or fail to respond to a demand for information
                                        iii.      Notes:
1.      Admission pro hac vice: allowing a lawyer licensed in another state to handle a single case before the court; usually, the lawyer must associate a local attorney
2.      Admission to practice in federal courts – lawyers must be admitted into each federal court before which they practice; usually only have to be admitted to practice in the state in which a US district court sits to be admitted to practice in the district court
3.      Reciprocity Admission – vast majority of states will admit a lawyer to practice if that lawyer has practice law for a period of years (usually 5) in another state that extends the same privilege to lawyers of the admitting state
4.      Unauthorized Practice – if a lawyer practices law in a state in which he is not authorized to practice, the lawyer is subject to criminal sanctions in the state in which he engages in the unauthorized practice, and to discipline in the state in which he is admitted
c.       Sanctions for Lawyer Misconduct
                                            i.      Lawyer Discipline
1.      Lawyers who engage in professional misconduct are subject to discipline, usually conducted by the state bar and supreme court
a.       Initiated by a complaint filed with the state bar, usually by an attorney’s client or opposing counsel, but can be done by a judge or prosecutor
b.      State bar then conducts an investigation, usually by full-time bar attorneys
c.       Minor violations: may lead to an accommodation between the attorney and the complainant, or plea bargaining
d.      Major violations: with sufficient evidence, bar counsel files formal charges and the matter is brought before a bar disciplinary committee for a hearing
                                                                                                           i.      Violating attorney is entitled to notice of hearing, legal counsel of his choice, the opportunity to confront witnesses, and right to put on his own evidence
                                                                                                         ii.      Under an exception to the confidentiality rule, the lawyer may reveal information relating to the representation of a client to respond to allegations
                                                                                                       iii.      After presentation of evidence on both sides, the committee renders a decision, either dismissing the charges or finding a violation and recommending punishment
e.       State supreme court retains ultimate control over attorney discipline
                                                                                                           i.      Some states send decisions directly to supreme court, others only when the lawyer appeals
                                                                                                         ii.      Supreme court does not hear any additional evidence, but typically conducts a de novo review of the decision of the bar committee
2.      Severity of Discipline – depends on:
a.       Extent the misconduct caused injury to others
b.      Blameworthiness of the lawyer under the circumstances
c.       Lawyer’s general character
d.      Prior disciplinary history; whether isolated incident or pattern of repeated behavior
e.       Lawyer’s demeanor and reactions to disciplinary process
f.       Likely need to deter lawyers generally or the offending lawyer specifically from similar conduct in the future
g.       Desirability of parity among similar cases
h.      Justness of the sanction for other reasons
3.      Four possible sanctions: (minor => major)
a.       Private reprimand: unpublished communication to lawyer
b.      Public reprimand: published report of his violation to the state bar journal
c.       Suspension: suspends lawyer from law practice ranging from days to years
                                                                                                           i.      May be required to me

sserting client status to believe the relationship existed
                                                                                                         ii.      The duty is to take reasonable steps to fulfill the client’s purposes for hiring a lawyer
1.      Includes actions and inaction
2.      Violation of RPC may provide evidence of breach
                                                                                                       iii.      Scope of representation question: Does an attorney agree to protect all client interests, or just the interests that are directly at issue in the representation?
c.       Standard of care: attorney must exercise the skill and knowledge ordinarily possessed by attorneys under similar circumstances
d.      Proximate Cause: must show both actual (“but for”) and legal cause (foreseeability) of injury
                                                                                                           i.      Client/plaintiff must show that but for the negligence, he would have been successful in the suit
e.       Must also show legally recoverable damages
3.      Attorneys can also be liable to clients under breach of fiduciary duty, fraud or deceit, breach of contract, and violation of consumer protection laws
4.      Suits from non-clients is rare
                                      vii.      Sanctions by Courts and Regulatory Bodies
1.      Courts and administrative agencies may also punish misconduct
2.      Rules 11, 26, and 37 of the Federal Rules of Civil Procedure acknowledge the power of courts to punish lawyers that engage in misconduct
a.       Courts also have powers of contempt to ensure orderly presentation of evidence and argument
                                    viii.      Loss of Fees
1.      In addition to the other sanctions that may be imposed, a court may deny all or part of the fees of a lawyer who has engaged in a “clear and serious violation” of a duty to the client
2.      Considerations relevant to the forfeiture of fees include:
a.       Gravity and timing of the violation
b.      Its willfulness
c.       Its effect on the value of the lawyer’s work for the client
d.      Any other threatened or actual harm to the client
e.       The adequacy of other remedies
2.      The Lawyer-Client Relationship
a.      Establishing the Lawyer-Client Relationship
                                            i.      Rule 1.2(b) – Scope of Representation; Allocation of Authority b/t Client and Lawyer
1.      The representation of a client, including by appointment, does not constitute an endorsement of the client’s political, economic, social, or moral views or activities