TOPIC A:REGULATION OF THE

PROFESSION

P.R. 2016

Prof. Janicke

TOPIC A 2

SOURCES OF LAW OF PROFESSIONAL RESPONSIBILITY

• RULES PROMULGATED BY HIGHEST COURT OF A STATE

• LEGISLATION

• STATE BAR, BY STATUTORY AUTHORITY

2016

TOPIC A 3

• MANY STATES USE ABA MODEL RULES OF PROFESSIONAL RESPONSIBILITY AS A MODEL

– OFTEN WITH SOME CHANGES

– TEXAS IS ONE OF THEM

2016

TOPIC A 4

ETHICS VIOLATION

• IS NOT CONCLUSIVE ON MALPRACTICE CLAIM

• BUT IS RELEVANT

• AND IS A COMPLETE DEFENSE IN A SUIT TO RECOVER LEGAL FEES

2016

TOPIC A 5

MPRE

• USES ABA MODEL RULES

– in LERMAN-SCHRAG-GUPTA BOOK

• OCCASIONALLY ALSO CASE LAW

2016

TOPIC A 6

JUDICIAL CONDUCT

• MPRE USES ABA MODEL CODE OF JUDICIAL CONDUCT POSTED

• FEDERAL JUDGES ARE ALSO BOUND BY A STATUTE ON DISQUALIFICATION– 28 U.S.C. § 455 POSTED

2016

TOPIC A 7

BAR AUTHORITIES• IN EACH STATE, APPOINTED BY

HIGHEST COURT OR BY THE STATE BAR

• THEY QUALIFY (OR DISQUALIFY) APPLICANTS FOR ADMISSION TO PRACTICE LAW

• THEY PROCESS GRIEVANCES

2016

TOPIC A 8

WHO IS REGULATED?

• THOSE WHO “PRACTICE LAW”

2016

TOPIC A 9

WHAT IS “PRACTICING LAW”?

• EVEN AT THIS LATE DATE, STATES ARE NOT AGREED ON A DEFINITION

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2016

TOPIC A 10

• WE KNOW 3 THINGS ARE PRACTICING LAW:

1. HOLDING YOURSELF OUT TO THE PUBLIC AS BEING A LAWYER R. 5.5(b)

2. ESTABLISHING AN OFFICE FOR THAT PURPOSE R. 5.5(b)

3. REGULARLY DOING “LEGAL” CHORES FOR WHICH YOU CHARGE FEES

2016

TOPIC A 11

AND A COROLLARY:

• LAWYER CANNOT ASSIST ANOTHER IN THE UNAUTHORIZED “PRACTICE [OF] LAW” R. 5.5(a)

• A FAVORITE ON THE MPRE– THEY EXPECT THE ANSWER “NO”

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2016

TOPIC A 12

• ESPECIALLY TRUE IF THE NON-LAWYER WORKS FOR THE LAWYER’S FIRM

– LAWYER IS OBLIGED TO SUPERVISE THE WORK R. 5.3 C2

2016

TOPIC A 13

• EVERYTHING ELSE IS FUZZY

– A NON-LAWYER HELPING FRIENDS OR RELATIVES, e.g., ON LOANS, WILLS, MORTGAGES, TAXES, ETC. – IS NOT REGARDED AS “PRACTICING LAW”

2016

TOPIC A 14

ADMITTED LAWYER CROSSING STATE LINES

• OPINIONS ON THIS VARY BY STATE

2016

TOPIC A 15

• ABA MODEL RULE 5.5(c) ALLOWS FOR TEMPORARY PRACTICE IN ANOTHER STATE:– IF ASSOCIATED WITH AN ADMITTED

LAWYER ON THE CASE, or– IN LITIGATION, IF ADMITTED IN THAT

COURT (PRO HAC VICE OR PERMANENTLY), or

– ADR PROCEEDING, or– ACTS REASONABLY RELATED TO A

HOME-STATE REPRESENTATION

2016

TOPIC A 16

IN-HOUSE LAWYERS ARE EXEMPTED

• R. 5.5(d)(1)

• CAN BE ADMITTED IN ANOTHER STATE

• OR, WITH A PROVISO, IN ANOTHER COUNTRY

2016

TOPIC A 17

THE FUTURE OF ONLINE LEGAL HELP SITES

• IS UNKNOWN

• COULD BE UNLAWFUL SOLICITATION OF CLIENTS AND REVENUE

• COULD BE PRACTICING WITHOUT A LICENSE

• ARE REAL LAWYERS BEHIND THE CURTAIN?

2016

TOPIC A 18

QUALIFYING FOR ADMISSION

• GOOD MORAL CHARACTER

– PRIMARILY HONESTY / INTEGRITY• OWNING UP TO BAD THINGS [see R. 8.1]

– MORAL TURPITUDE• NO CONVICTION NEEDED

• NO CITIZENSHIP REQUIREMENT2016

TOPIC A 19

STAYING ADMITTED –THE BASICS

• GROUNDS FOR DISCIPLINE (INCLUDING DISBARMENT):

– VIOLATING A DISCIPLINARY RULE

– CRIMINALITY THAT SHOWS UNFITNESS TO PRACTICE

2016

TOPIC A 20

DISCIPLINARY RULES• R. 8.4:

– VIOLATING ANY PROF. CONDUCT RULE– HELPING ANYONE ELSE TO DO SO– ATTEMPTING TO VIOLATE ANY PROF.

CONDUCT RULE

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2016

TOPIC A 21

R. 8.4(c):

• ENGAGING IN ANY CONDUCT INVOLVING DISHONESTY, FRAUD, DECEIT OR MISREPRESENTATION

– EVEN IF IT HAPPENED IN ANOTHER STATE

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2016

TOPIC A 22

• THE DECEIT, ETC., NEED NOT BE IN THE PRACTICE OF LAW!

– PRIVATE LIFE– FAMILY LIFE– PRIVATE BUSINESS DEALINGS

• NO CRIMINAL CHARGES ARE NEEDED!

– BAR AUTHORITIES CAN ADJUDICATE

2016

TOPIC A 23

R. 8.4(d):•

“CONDUCT PREJUDICIAL TO THE ADMINISTRATION OF JUSTICE”

– EVEN IF NO DECEIT

– IS THERE ANY MISDEED NOT COVERED BY THIS RULE?

2016

TOPIC A 24

SILENCE CAN BE DECEITFUL

• EXAMPLE:

– LAWYER TESTIFIES BEFORE A GOVT. AGENCY

– IF HE IS DOING IT FOR A CLIENT, MUST REVEAL THAT FACT TO THE AGENCY R. 3.9

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2016

TOPIC A 25

• NOTE ALSO:

– AN AGENCY IS A “TRIBUNAL” R. 1.0(m)

– SUCH A LAWYER CANNOT MAKE ANY FALSE STATEMENTS R. 3.9, REFERENCING R. 3.3

2016

TOPIC A 26

DUTY TO REPORT OTHERS

• R. 8.3:

– MUST REPORT OTHER LAWYERS OR JUDGES WHO ARE “KNOWN” TO HAVE VIOLATED AN ETHICS RULE

• UNLESS INFO IS PROTECTED BY PRIVILEGE OR CLIENT CONFIDENTIALITY

2016

TOPIC A 27

• “COMPETENCE” IN A CASE IS AN ETHICAL REQUIREMENT R. 1.1

• IF A LAWYER HANDLES A CASE INCOMPETENTLY, WHAT DO YOU DO?

2016

TOPIC A 28

FORBIDDEN: RESTRICTIONS ON LAWYER’S FUTURE PRACTICE

• CONTRACT WITH LAW FIRM: NO COMPETING AFTER LEAVING FIRM– ILLEGAL, EXCEPT AS CONDITION FOR

BENEFITS R. 5.6(a)

• SETTLEMENT AGREEMENT WITH CLAUSE FOR NON-REPRESENTATIONS IN THE FUTURE– ILLEGAL, EVEN IF CLIENT WANTS IT R. 5.6(b),

AND EVEN IF IT’S A DEAL-BREAKER2016

TOPIC A 29

BADMOUTHING A JUDGE

• R. 8.2:

– NO FALSE OR RECKLESS STMTS. ABOUT:

• A JUDGE’S QUALIFICATIONS OR INTEGRITY

• A JUDICIAL CANDIDATE’S QUALIFICATIONS OR INTEGRITY

2016

TOPIC A 30

SOME SPECIFIC OTHER DUTIES

• RULE 5.6:

– NOT ALLOWED TO FORECLOSE FUTURE REPRESENTATIONS BY AGREEMENT

– REASON: PUBLIC RIGHT TO LEGAL SERVICES

– PITFALL: SETTLEMENTS

2016

TOPIC A 31

RULE 1.18

• DUTIES TO PROSPECTIVE CLIENTS– SOME DUTIES EXIST EVEN IF YOU

DECLINE THE CASE

• CANNOT USE OR REVEAL INFO LEARNED [R. 1.18(b)

– MAY BE DISQUALIFIED FROM LATER GOOD ENGAGEMENTS [R. 1.18(c)]

2016

TOPIC A 32

• INFORMED CONSENTS WILL CURE THIS [R. 1.18(d)]– BUT ALMOST IMPOSSIBLE TO GET

• EARLY PRECAUTIONS ON LEARNING INFO MIGHT HELP [R. 1.18(d)(2)]

– LEARNING JUST ENOUGH TO SAY “NO”– DIFFICULT TO IMPLEMENT IN PRACTICE

2016

TOPIC A 33

MEANING OF “INFORMED CONSENT”

• R. 1.0(e):

1. ADEQUATE INFO NEEDED

2. ADEQUATE EXPLANATION BY LWYR NEEDED

3. MUST TELL ABOUT RISKS

4. MUST TELL ABOUT ALTERNATIVES

2016

TOPIC A 34

INFORMED CONSENT

• DOES NOT HAVE TO BE IN WRITING TO BE INFORMED

• BUT MOST RULES REQUIRE– “WRITTEN” INFORMED CONSENT or– “INFORMED CONSENT CONFIRMED IN

WRITING”

• [MPRE: IF IN DOUBT, ASSUME WRITING IS NEEDED]

2016