Professional Responsibility
Natkin
Spring 2016
Chapter 1. Regulation of the Legal Profession Checklist
A. Powers of Courts and Others to Regulate Lawyers
1. The courts of each state have the inherent power to regulate members of the legal profession for their conduct, both in-court and elsewhere.
2. The legal profession is governed by state ethics standards, case law, and court rules.
B. Admission to the Profession
1. A bar applicant cannot “knowingly make a false statement of material fact.”
2. You cannot make a knowingly false or misleading statement in a statement of support for the bar application of another applicant.
C. Regulation after Admission – Lawyer Discipline
1. Misconduct
a. You are subject to discipline for wrongful conduct committed while you are acting in your capacity as a lawyer.
b. You may be disciplined for your misconduct outside your capacity as a lawyer, i.e., illegal conduct or conduct “involving dishonestly, fraud, deceit, or misrepresentation.”
c. You are subject to discipline for violating the MRPC, and assisting or inducing another person to violate a Rule.
d. Discipline may be imposed for crimes that reflect “adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer.”
e. You are subject to discipline for “conduct that is prejudice to the administration of justice,” as when you make remarks that are racist, sexist, or politically incorrect.
2. Disciplinary Authority
a. If you are admitted in State A, you are subject to discipline there, even if your misconduct occurs outside State A.
b. If you are not admitted to practice in State A, you are nevertheless subject to discipline in State A if you provide or offer to provide legal services there.
3. Choice of Law
a. If you are admitted to practice in State A but you are temporarily admitted in a court in State B and your alleged misconduct occurred there, discipline by State A would be governed by the Rules of State B.
b. If your alleged misconduct occurs outside a court, the applicable Rules are those of the state where the conduct occurred unless the predominant effect of the particular conduct is elsewhere.
D. Reporting Professional Misconduct
1. You have a general obligation to report information about another lawyer’s serious disciplinary violations.
2. Your duty to report misconduct focuses on conduct that raises a “substantial question” about the other lawyer’s “honesty, trustworthiness or fitness as a lawyer.”
3. Your duty extends to reporting to regulatory authorities another lawyer who is suspected of alcoholism, drug addiction, or other mental impairment.
4. There are two contexts when the duty to report is extinguished.
a. The duty to report is superseded by the duty of confidentiality under Rule 1.6, as when your client tells you that another lawyer has engaged in serious misconduct, or you represent a lawyer who has herself committed serious misconduct.
b. The reporting requirement also does not apply to lawyers who participate in lawyer assistance programs.
E. Unauthorized Practice of Law
1. The definition of unauthorized practice of law is defined by the statutes, rules and case law of each state, and the MRPC incorporate that law by reference.
2. You violate the unauthorized practice Rules, either by practicing in a state where you are not admitted or by helping a law person in her unauthorized practice of law.
F. Multijurisdictional Practice
1. You cannot open a law office in a state where you are not admitted, but you may open an office with a lawyer admitted there.
2. You can offer temporary legal services in a jurisdiction where you are not admitted.
a. You may associate yourself with local counsel who actively participates in representation of your clients.
b. You may be admitted by a court to practice one case pro hac vice.
c. You can participate in an ADR proceeding in another state if it is reasonably related to or arises out of a representation in the place where you are admitted to practice.
d. You may represent a client in a matter in another state when that matter is closely related to your representation of a client in the state where you are admitted.
3. If you are an employee-lawyer for an entity like a corporation, you may represent it anywhere you are not admitted to practice. If that representation results in litigation, you must seek pro hac vice admission to the court where the lawsuit is pending.
G. Fee Division with a Nonlawyer
1. Generally, you or your firm cannot share legal fees with a nonlawyer. Rule 5.4(a).
2. Exceptions
a. Your firm may pay money to the estate of a deceased lawyer for a reasonable period of time after her death.
b. If you buy the law practice of a deceased lawyer, you may pay the purchase price to the nonlawyer executor of the estate.
c. You can include nonlawyer employees in a compensation plan even though the plan is based on a profit-sharing arrangement.
d. You can agree in advance to give your court-awarded fees to a non-profit organization.
3. You cannot be in a partnership with a nonlawyer if practicing law is any part of the partnership’s business. Rule 5.4(b).
H. Law Firm and Other Forms of Practice
1. Law-related services. Before you contract for such law-related services such as title insurance, you must disclose to your client that those law-related services do not constitute law practice.
2. Short-term legal services. You may participate in a short-term legal services program sponsored by a nonprofit organization or a court, as when you have no expectation of a continuing lawyer-client relationship. Under that circumstance, the current or former client conflict Rules (1.7 and 1.9) do not apply.
3. Sale of law practice. You may sell either your entire practice or an entire area of practice to one or more lawyers or law firms.
4. Collateral Restrictions on the Sale of a Law Practice
a. You must cease practicing law or an e
e lawyers in their firm comply with the MRPC. Rule 5.1(a).
-If you have supervisory authority over another lawyer as a senior associate supervising a junior associate, your responsibilities are the same as a partner. Rule 5.1(b).
-You are responsible for another lawyer’s ethical violation if you order her to engage in misconduct or you knowingly ratify her misconduct. Rule 5.1(c)(1).
-You cannot escape your responsibility for ethical misconduct by claiming that you were just following orders. Rule 5.2(a).
-You have a general obligation to report information about another lawyer’s serious disciplinary violations, unless that information is confidential under Rule 1.6.
-Your duty to report misconduct focuses on conduct that raises a “substantial question” about the other lawyer’s “honesty, trustworthiness or fitness as a lawyer.” Rule 8.3(a).
-The duty to report is superseded by the duty of confidentiality under Rule 1.6, as when your client tells you that another lawyer has engaged in serious misconduct, or you represent a lawyer who has herself committed serious misconduct.
-Generally, you or your firm cannot share legal fees with a nonlawyer, to control nonlawyer involvement in the delivery of legal services. Rule 5.4(a).
-You cannot be in a partnership with a nonlawyer if practicing law is any part of the partnership’s business. Rule 5.4(b).
-You may violate the unauthorized practice rules, either by practicing in a state where you are not admitted or by helping a lay person in her unauthorized practice of law. Rule 5.5(a).
-You cannot open a law office in a state where you are not admitted, but you may open an office with a lawyer admitted there. Rule 5.5(b).
-Except for agreements for retirement benefits, the MRPC prohibit agreements that restrict your right to practice after you leave your law firm. Rule 5.6(a).
-No one, including you, can restrict your right to practice law as part of the settlement of a client’s case. Rule 5.6(b).
-You may sell either your entire practice or an entire area of practice to one or more lawyers or law firms. Collateral restrictions on the sale of a law practice are: you must cease practicing law or an entire area of practice unless there are unanticipated circumstances, and each of the seller’s clients must receive written notice of the proposed sale, the right to retain other counsel, and the right to take possession of her file.
