PROFESSIONAL RESPONSIBILITY
OUTLINE
I. Ability to Practice Law
A) Law is a profession
· 4 Characteristics of a Profession
o self-regulated – lawyers want to regulate other lawyers
o higher learning – higher education to be admitted
o barriers to entry – membership is limited to those people who meet the requirements
o public service – must provide services to those whose social status limits their ability to use the law
· 3 forums for PR
o Disciplinary action at the bar – will your license be taken away?
o Malpractice – how can a client sue you for violating the rules?
o In court disqualification – you are not allowed to rep. this client
§ Criminal law – could be a 4th category; some lawyers actions have been criminalized by state legislators
B) Important cases regarding the right/ability to practice law
· In re Griffiths – SCOTUS
o Non-citizen, green-card holder wants to take the bar exam
o “a state may not discriminate against a green card holder from taking the bar exam due to constitutional restraints”
· Piper case – Residency requirements? – SCOTUS
o Catherine Piper, a Vermont resident, passes the New Hampshire bar and meets all the other requirements but is not a NH resident – denied license
o Based on the Privileges and Immunities Clause, the SCOTUS found that this broad discrimination against out of staters is unconstitutional
o Substantial purpose test – states may only use residency requirements is they have a good reason and they narrowly define those reasons
§ Other important notes
§ Va. treated its residents and non-resident bar admission seekers differently by not requiring state residents to attend a Va. law school but forcing out of staters to do so – this again was found a violation of the P&I clause
§ Virgin Island case – VI used the reasons of high cost and administrative hassle to justify residency requirements – also struck down as violation of P&I clause
· Griffiths and Piper combined = no help for foreign citz. To become members of a state’s bar because those cases are decided on constitutional rights not afforded to aliens
· ‘Impact Discrimination’ – state rules that on the surface do not seem to violate the P&I clause but have been challenged as still having a discriminatory effect of out of staters
o In state office requirement – NY reqs. a lawyers to have an office in NY to be allowed to practice law their – leads to the question of ‘What is an office?’ – is it a mailbox or a fully functioning office?
o SCOTUS – using its supervisory power, says no instate office reqs. for practice in the federal district courts
C) Fed. Practice Requirements?
· Must be licensed to practice in the state where the Fed. Dist. Court sits
o They defer to the states due to a lack of infrastructure and resources to account for bar applicants
o But, they don’t have to! They can make their own rules of practice due to the Supremacy Clause
· Federal Agency practice – some courts are exclusively federal (patent, bankruptcy, etc.) can you being granted access by the Fed. Court and then allowed to practice that type of law in all 50 states?
o Sperry v Fla. – a non-lawyer passes the patent bar test and holds himself out to be a patent specialist, Fla. Bar challenges his right to do so, goes to the SCOTUS
§ “if a federal agency allows you to hold yourself out as something, a state bar may not prevent you from doing so”
o Tax law presents a unique circumstance – laymen allowed to be a tax preparer by passing a test, but what happens when challenged by the IRS?
§ Disputes with the IRS – no attorney client privilege for a non-lawyer so the H&R block people may be forced to disclose things in a dispute that a lawyer would not
§ Litigation with the IRS? – the laymen can stand to represent in tax court but not in district or state court as a lawyer would be allowed to do = which forum you chose can have different advantages so being reped by a lawyer gives more options
D) How does a Texas lawyer practice law in other states?
· Take and pass the bar and other reqs. of the other state’s bar admission
· Reciprocity – some states will give the out of stater credit for passing another states bar
o Usually have a minimum practice req. so that people can’t take the easiest state bar and then move to a harder state
· Pro Hoc Vice – ‘for one time only’ – a very common way for lawyers to represent their clients in jurisdictions wh
ess’
o MIPs/DWIs – may be required to go before the Board and answer questions; they can grant conditional licenses; force AA meetings, etc.
· Psychological or Psychiatric conditions – usually required to waive your right to medical records privilege, bar looks for disorders that may limit your ability to practice
o ADA reqs the BLE to work with the applicants
· Personal Behavior – some bars have attempted to discriminate against people who commit ‘crimes’ that are of a consensual nature
o Va. woman lives with her boyfriend without being married, it’s a crime – cant be used against her by the BLE
o Private consensual behavior cannot be used against you
· Model Rule 8.1 – Bar admission and disciplinary matters (p.1153)
o (a) – an applicant may not knowingly make a false statement of material face
o (b) – may not fail to disclose a necessary fact – has a duty to correct a misapprehension by the bar examiners
§ cannot knowingly fail to respond to a request for information except if the information is protected by the confidentiality rule 1.6
o These requirements apply to the person seeking admission and to a lawyer in connection with bar admission
§ Ex – you are an applicant to the bar – you wreck your car into your neighbor’s (who is a lawyer) house – you use him as a reference on the BLE questions – he must disclose his knowledge of the accident if asked
§ Ex – same relationship with the lawyer neighbor – in high school you go to him to talk about substance abuse issues you have – he need not disclose this conversation bc it is protected by privilege
II) Unauthorized Practice of Law
· Consequences of UPL
o Criminal misdemeanor – although rarely prosecuted
o Loss of any fee charged – court will order the fee returned to the client
