topic a: regulation of the profession p.r. 2016 prof. janicke
TRANSCRIPT
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
>>>
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”
>>>
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
>>>
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
>>>
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
>>>
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