Legal Profession
Long – Fall 2013
ADMISSION TO THE BAR
· General Requirements include:
o Pass the Bar Exam
o Demonstrate that you are a person of good character and are fit to practice law
o That you have the requisite ties to the state in which you are seeking to be licensed, and
o That you can believably take the oath required if all who would be licensed to practice law.
· Rule 7. Licensing of Attorneys
o Article I. ADMISSION TO THE BAR OF TENNESSEE
§ A law license is required to practice law
§ A license is granted only upon the Certificate of the State Board of Law Examiners.
§ Certificate of the Board will be based upon determination that applicant:
· Is of the statutory age of 18
· Meets education requirements (has a JD),
· Passed the Bar or qualifies for admission without examination (Article V),
· Demonstrated reputation and character as in the opinion of the Board indicates not reasonable basis for substantial doubts that he will adhere to the standards of conduct required of attorneys,
· Has evidence a commitment to serve the administration of justice in this State (TN) [took oath?]
o Section 1.05. Status of Person Admitted
§ A person admitted to the bar in TN can practice law in any court in the state and engage in the “law business”
§ The person is subject to the duties and standards imposed on attorneys in the State (Rules of Professional Conduct)
· Good Moral Character: all states require an applicant for a law license to show that he or she has good moral character.
o Cord v. Gibb-
§ Application could not be denied admission to the bar because she lived with a male to whom she was not married.
§ Court said denial must have a rationale connection with the applicant’s fitness or capacity to practice law.
o In Re Gahan
§ Lawyer seeking admission to the BAR and was denied b/c he discharged debt in bankruptcy without evidence of intent or effort to pay debts. While he is allowed to declare bankruptcy and it was legal, his dummy-loans are against his moral character.
§ Applicants who flagrantly disregard the rights of others and default on serious financial obligations, such as student loans, are lacking in good moral character if the default is neglectful, irresponsible, and cannot be excused by a compelling hardship that is reasonably beyond the control of the applicant.
§ Rule 4.4 (a) Respect for Rights of Third Persons à When trying to decide if someone should be admitted to the bar, they look at rules that would be violated if you were a lawyer.
· Residency
o State must show that its purpose or interest of denying admission to the bar is both constitutionally permissible and substantial, and that its use of the classification is necessary to the accomplishment of its purpose of the safeguarding its interest.
§ The Supreme Court has held that denying a resident alien admission to the bar due to citizenship is unconstitutional, because lawyers are not officials of government and the practice of law does not give the resident alien an opportunity to adversely affect U.S. in favor of their home country.
o Residency Or Other Requisite Ties To The State Of Licensure
§ In New Hampshire v. Piper NH’s reasons for not accepting nonresident members were they would be less likely to remain familiar with the rules, be available, behave ethically, or do pro bono work.
§ Court said that its reasons were not “substantial”
§ Supreme Court said that the State could accomplish its interest by less restrictive means, like requiring any lawyer who resides at a great distance to retain local counsel who will be available for unscheduled meetings and hearings.
· Passing the Bar
o All states require individuals to pass a bar exam (as well as those admitted elsewhere but for less than five years) except Wisconsin.
§ Wisconsin exempts first time applicants who graduate from approved law schools within the state. (U of Wisconsin or Marquette).
MENTAL HEALTH AND EMOTIONAL STABILITY
· The mere fact of treatment for mental health problems or addiction is not in itself a basis to be denied admission, it’s the failure to disclose.
· Professional boards do not seek disclosure of situational counseling, such as: stress counseling, domestic counseling, grief counseling, and counseling for eating or sleeping disorders.
· You are not going to be denied admission because you have a condition. You will be denied admission because you have a condition that will interfere with your ability to practice law.
· In Re Ronwin II
o Behavior was not rational. Applicant tried to vindicate the fact that he was made fun of by suing everyone possible like the dean, law students, a law student who wrote a case note about him, etc..
o Turbulent, Intemperate, and Irresponsible behavior is basis for denial of admission to the bar. Applicant was denied BAR admission b/c lacks qualities of responsibility, candor, fairness, self-restraint, objectivity, respect for the judicial system, civility.
o Holding: Behavior can result in denial of admission to the BAR.
o Rule 3.3 – Filing Frivolous Lawsuits.
DUTY OF CANDOR
· Candor in the Bar Admission Process
· Rule 8.1 Bar Admission and Disciplinary Process– Applicant to the bar or lawyer for the applicant shall not:
o a) knowingly make false statements of material fact; or
o 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 … authority …
· So if you said you were never convicted of a felony, and then you are, you have to go back and update it.
· If you lie and are admitted, you can be disbarred later.
· Duty of candor is subject to the 5th amendment and corresponding state provisions of self-incrimination according to Comment 2
· Rule 8.1. A lawyer serving as a reference cannot invoke the applicant’s privilege against self-incrimination as a justification for failure to truthfully respond. However, a lawyer representing a bar applicant is exempt due to his duty under ABA Model Rule 1.6, not to reveal information relating to representation of client.
· Comment 2: You can refuse to disclose information if think the request is unlawful or you think you have a legal privilege not to disclose it, but you must do so openly and not use nondisclosure as a justification to not answering.
o Another option is to waive your right to not disclose the information and reveal it in hopes that it is not a big deal and won’t affect your admission.
· Non-compliance with the duty of candor in connection with a prior bar application could also serve as grounds for denial of a subsequent admission, such as when a lawyer licensed in one state seeks admission to the bar of another state.
Chapter 3. Regulation: Enforcement Standards of Professional Conduct
· The key enforcement mechanisms are:
o 1) Voluntary compliance
o 2) Enforcement by the imposition of professional discipline, such as private or public reprimand, suspension of one’s license to practice law, or disbarment and
o 3) Enforcement of the law governing lawyers through the imposition of civil and/or criminal liability.
· ABA Model Rules of Professional Conduct, Scope ¶ 16
o Compliance with the Rules depends primarily upon understanding and voluntary compliance, secondarily upon reinforcement by peer and public opinion and finally, when necessary, upon enforcement through disciplinary proceedings.
· Rule 8.4: Misconduct
o It is professional misconduct for a lawyer to:
o (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
§ [1] (a), however, does not prohibit a lawyer from advising a client concerning action the client is legally entitled to take.
o (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
§ Does not have to be in your lawyer capacity, can be in your private life, but does need to adversely reflect on your honesty, trustworthiness, or fitness as a lawyer.
§ [2] Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category.
· A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.
· So going 5 over the speed limit isn’t disrespect, but a DUI (which shows a lack of respect for other people and their safety) could (maybe) reflect on your fitness as a lawyer.
§ Some things simply reflect “moral turpitude” or personal morality, such as adultery, and have no specific connection to fitness for the practice of law.
§ [4] A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law.
§ It must be a criminal act that reflects adversely: fraud, embezzlement, violence, etc.
o (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
§ Again, can be in private life
§ This covers things that are not necessarily criminal
o (d) engage in conduct that is prejudicial to the administration of justice;
§ So broad and vague it covers about everything
§ [3] A lawyer who knowingly manifests by words or conduct bias or prejudice based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, while representing a client violates paragraph (d) where it is prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d). A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule.
§ Best approach is kind of if it interferes with the ways that the legal system is suppose to operate.
· E.g., threatening a witness not to testify, bribing a witness
· Creating conflicts of interest (law firm hired a judges brother in order to get him recused on certain cases)
o (e) state or imply an ability to influence improperly a government agency or offi
ithout the client’s consent. It trumps 8.3 always. Doesn’t matter that 3rd parties were there its still confidential information
· Hierarchy of Discipline
o From Least to Most Sever:
§ Private reprimand
§ Public reprimand
§ Interim Suspension
§ Suspension
§ Disbarment (There are procedures to reapply if it is not permanent disbarment
o Additional catch all “Other sanctions and remedies” which includes restitution, CLE courses, etc.
o Certain duties, like the duty to maintain client confidence, are weighty and an intentional violation of the duty with the intent to benefit oneself calls for suspension or disbarment, at least where harm results to the client.
· Lawyer Criminal Offenses. Restatement Third, § 8
o The traditional and appropriate activities of a lawyer in representing a client in accordance with the requirements of the applicable lawyer code are relevant factors for the tribunal in assessing the propriety of the lawyer’s conduct under the criminal law. In other respect, a lawyer is guilty of an offense for an act committed in the course of representing a client to the same extent and on the same basis as would a non-lawyer acting similarly.
· § 6 Judicial Remedies available to a Client or Non-client for Lawyer Wrongs
o p. 177-179 in rule book
CHAPTER 6
Preventing the Unauthorized Practice of Law
· In general
o Rendering of services that require the professional judgment of a lawyer
o Definition
§ The practice of law is the application of law and judgment to specific legal problem
§ 5.5(a) makes it a violation to engage in the unauthorized practice of law or assist a person law where doing so would amount to the unauthorized practice of law.
· A person may proceed pro se
o A lawyer may help a lay person appear pro se
§ HOWEVER, some courts say that under 8.4(c) you must disclose to the court that you are ghost-writing documents, because you are being dishonest or deceitful.
o A non-lawyer in the corporation may not proceed pro se on the corporations behalf.
o The corporation is its on person in the eyes of the law, so any employee or owner proceeding on its behalf would be the unauthorized practice of law.
· As law students
o It all comes down to supervision.
o A lawyer must supervise and review what the law student does in order to make sure they are not practicing law.
· Notes
o It’s a vague concept
o It’s okay if a secretary is just filling out forms, unless also providing advice as to which forms to use and how to fill them out.
o Selling books that say how to file a law-suit is okay. Providing self-help kits or pre-printed legal forms probably okay too.
CHAPTER 7 MULTI-JURISDICTIONAL PRACTICE
· Model Rule 5.5
o Permits admission on motion in any jurisdiction as long as the lawyer holds a degree from an ABA-accredited law school, has practiced law for 5 of the immediately preceding 7 years, and demonstrates adequate character and fitness, including being in good standing –not subject to any disciplinary proceedings- in all jurisdictions in which the lawyer is admitted.
§ If the applicant has failed the bar examination administered in the new jurisdiction within five years of the date of filing an application, the applicant is not eligible for admission on motion.
§ Some states don’t allow admission by motion. Some only allow admission by motion if the state they are licensed in does.
· Rule 5.1
o Local counsel can be disciplined for conduct committed by an out-of-state in-house counsel or another out-of-state counsel when:
§ the local counsel knows of the abuse and ratifies it by his or her own conduct; or
· actual knowledge; or
· includes “willful blindness” – local counsel, suspicious that lead counsel was engaging in or was about to engage in a violation of a Rule of Professional Responsibility, sought to avoid actual knowledge of the conduct. Attorney should treat any reasonable suspicion as sufficient to prompt inquiry of the out-of-state counsel. Failure to affirmatively act in opposition constitutes ratification of the counsel’s behavior.
§ the counsel has supervisory authority over the out-of-state counsel also in accordance with Rule 5.1(c).
