Chapter 1 à The Regulation of Lawyers:
A. Institution that regulate lawyers
· 1) The highest state courts
o In most states, the highest court of the state, not the legislature, is responsible for adopting the rules of conduct that govern lawyers (lawyers regulate themselves).
o Legislative Branch’s Role in governance of lawyers: Passes some statutes that apply to lawyers.
o Executive Branch’s Role in governance of lawyers: Adopts and implements some regulations and policies that apply to lawyers.
o Judicial Branch’s Role in governance of lawyers: Makes the law by adopting ethics codes, implements the law through delegation to bar associations, and interprets the law through court decisions in cases involving discipline, malpractice, disqualification, and other matters.
§ “Inherent Powers” Doctrine- The courts claim that they have the inherent authority to regulate the conduct of the lawyers as a matter of C/L b/c the courts need the authority to govern the conduct of those who appear before them.
§ “Negative Inherent Powers” Doctrine- Some courts have invalidated legislation regulating lawyers.
· 2) State and local bar associations
o State’s highest courts delegate some functions to bar associations or to other organizations.
§ Administer bar exams
§ Some run disciplinary agencies
§ Set up ethics committees to write opinions interpreting ethical rules
· 3) Lawyer disciplinary agencies
o Disciplinary agencies (often called offices of the bar counsel) investigate and prosecute alleged misconduct by lawyers.
· 4) American Bar Association (ABA)
o The ABA is a private nongovernmental organization which produces model ethical rules and ethics opinions.
§ ABA Model Rules of Professional Conduct (see http://www.abanet.org)
· 5) American Law Institute (ALI)
o The ALI is a private organization of lawyers that produces summaries of the law called Restatements.
§ Restatement (Third) of the Law Governing Lawyers (1998) (see http://www.ali.org)
· 6) Federal courts
o Federal courts admit lawyers to practice before them, adopt procedural rules and ethical rules, impose sanctions for misconduct under their rules, disqualify lawyers based on conflicts of interest, review and decide petitions for fees pursuant to fee-shifting statutes.
§ Federal Rules of Civil Procedure 11 and 26 include ethical standards and sanctions authority.
· 7) Legislatures
o Despite the inherent powers doctrine, much law adopted by legislatures govern lawyers. Also, legislative bodies may impose ethical or procedural rules on lawyers who appear before them.
· 8) Administrative agencies
o Federal and state agencies admit lawyers to practice before them without a separate bar exam. Some impose their own ethics regulations on lawyers.
· 9) Prosecutors
o Prosecutors have the authority (and discretion) to bring criminal charges against lawyers for crimes committed in or out of practice.
· 10) Malpractice Insurers
o Companies that provide malpractice insurance to lawyers to set conditions for obtaining insurance. These rules form a body of “private law” that governs lawyers who contra t with those companies.
§ May require: Conflicts checking system, Review of opinion letters by senior people, and Tickler system.
· 11) Law Firms and other employers
o Law firms and other organizations that employ lawyers adopt internal rules and standards of practice that regulate lawyers employed by each organization.
· 12) Clients
o Many clients (especially government agencies and large corporations) impose rules of conduct on the lawyers they employ.
§ Prohibit block billing
§ Disallow billing for the time of a second or third lawyer at a deposition
§ Use auditors to monitor the work of lawyer
B. The law governing lawyers
· 1) State ethics codes
o These codes usually become law by adoption by the states’ highest courts. They are often based on the ABA Model Rules.
o 2 purposes of state ethics codes:
§ (1) to guide lawyers in evaluating what conduct is proper in various situations and
§ (2) to provide a basis for disciplining lawyers who violate the rules.
· 2) Legal malpractice, breach of K, and breach of fiduciary duty
o The client must assert:
§ That the lawyer owed a duty to the plaintiff,
§ That the lawyer failed to exercise “the competence and diligence normally exercised by lawyers in similar circumstances,” and
§ That the breach of duty caused harm to the plaintiff.
examination to its applicants for admission, though some states allow candidates to “waive-in” to the bar if they pay a fee, have practiced for a specified number of years in another state, and satisfy character and fitness requirements.
· 3) The character and fitness inquiry
o Criteria for evaluation
§ Most states require each bar applicant to fill out an application. This may require assembly and submission of a wide range of information, including residence and employment history, criminal records, traffic records, credit history, records of any litigation in which the applicant has been a party, and other information.
§ About three-quarters of the state bar applications ask whether an applicant has received outpatient treatment for any mental or emotional disorder or condition.
§ Nearly every state asks some questions about abuse of drugs or alcohol and/or treatment for substance abuse.
§ All states ask questions about past criminal conduct, w/ some states seeking information not only about criminal convictions but also about arrests or citations.
§ Most states require that the dean of the law school attest to moral character of applicants for the bar.
§ Some state bars conduct personal interviews w/ every applicant, while others interview only those applicants whose questionnaire includes some problematic information (which also may lead to an investigation by the bar and a formal hearing on the applicant’s qualifications for admission.
o The character questionnaire
§ The information you disclose on your bar application must be consistent w/ the information you disclosed on your law school application.
Problem 1-1 à Pot
o Mental health of applicants
Until the 1980s and 1990s, many states asked very detailed and intrusive questions. Most states have now narrowed their