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Legal Profession Summer 2009 Rucker

Legal Profession Summer 2009 Rucker

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Published by Joshua Ryan Collums

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Published by: Joshua Ryan Collums on Dec 14, 2010
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Concentrate on conflict rules, trust accounts, feesNo questions from Chapter 15
I)The Regulation of Lawyers
A)Institutions the regulate lawyersi)The highest state courts(1)The responsibility of self regulation(a)The legal profession is largely self-regulated; it sets and enforcesits own standards of conduct.(b)In most states, the highest court of the state, not the legislature, isresponsible for adopting the rules of conduct that govern lawyers.(c)The highest court in each state is ultimately responsible forenforcing its rules by disciplining lawyers who violate them.(i)Committees can only recommend disbarment. Ultimatedecision is made by the court.(d)How do state courts regulate lawyers?(i)Adopts ethics codes and court procedural rules that governlawyers(ii)Sets and implements standards for licensing of lawyers,including educations and moral character requirements(iii)Supervises agencies that investigate and prosecute complaintsof unethical conduct by lawyers(iv)Supervises administrative judicial bodies that impose sanctionson lawyers who violate ethical codes(2)The inherent powers doctrine(a)Courts claim the authority to regulate lawyers as an aspect of theirauthority to administer the courts.(i)In a few states, the state constitution expressly assigns to thecourts authority to regulate the conduct of lawyers.(ii)In states which the constitution does not expressly delegate thispower to the judiciary, the courts claim that they have theinherent authority to regulate the conduct of the lawyers as amatter of common law because the courts needed the authorityto govern the conduct of those who appear before them.(b)Negative inherent powers doctrine -- Some state courts haveasserted that their regulatory authority over lawyers is exclusive of other branches of government.(i)Some courts have invalidated legislation regulating lawyers.(ii)Most often strike down laws that allow nonlawyers to engage insome activity that overlaps with the practice of law.ii)State and local bar associations(1)Organized as private nonprofit organizations(2)Some courts delegate lawyer regulatory functions to state barassociations(3)Often administer bar exams and review candidates for admission(4)Integrated or unified bar – accepts delegated functions from the state’shighest court(a)Membership is mandatory(b)Arkansas is voluntary(i)Supreme court office regulates discipline(5)May be required to be a member of a bar as a condition of obtaining alicense to practice law(6)Draft ethical rules, write advisory opinions interpreting the rules, andundertake law reform activities in many different fields.
 
(7)Many voluntary bar associations (city and county, women bars,minority bars, particular fields, etc.)iii)Lawyer disciplinary agencies(1)Often called bar counsel’s offices or disciplinary counsels(2)Bear responsibility for investigating and prosecuting misconduct thatviolates the state ethics codes(3)Possible sanctions include disbarment, suspension, and public orprivate reprimand(4)Usually run by the state’s highest court, by the state bar, or by both.iv)The American Bar Association(1)Private nonprofit membership organization founded in 1878(2)State bars are independent of, not subordinate to, the ABA(3)Model Rules of Professional Conduct(a)Rules have no legal force unless they are adopted by the relevantgovernmental authority, usually the state’s highest court.(b)How are they written and adopted?(i)Committee drafts a model rule or a set of revisions to theexisting rules.(ii)Model rule is debated and approved b the ABA as a wholethrough the House of Delegates(iii)Committees of state bars associations then review the rules,sometimes at the request of their state’s highest court. Thestate bar committee or the court may solicit comments frommembers of the bar and from the public(iv)Ultimately, the state’s highest court accepts, rejects, or amendsthe rule.(v)The court is under no duty to consider a rule just because it wasproposed by the ABA or analyzed by the state bar association,however, this is strongly influential.v)The American Law Institute(1)Private organization of 3,000 judges, lawyers, and law teachers thatproduce summaries of the law called Restatements.(2)Restatement (Third) of the Law Governing Lawyers(a)Summarizes the rules of law that govern lawyers(b)Includes rule governing malpractice liability to clients and thirdparties, rules governing disqualification of lawyers for conflicts of interest, and ethical rules for violation of which a lawyer may besubject to discipline.(c)Not the law but the best available synthesis of information about“lawyer law”(d)Restatement is not always consistent with the Model Rules.(i)Comments usually note the discrepancy and explain why theauthors of the Restatement take a different position.(ii)Often a lawyer will find that the text of the state’s ethical ruledoes not provide clear guidance on the specific problem thatthe lawyer is facing. The lawyer must seek additional guidancefrom sources such as the commentary in the Restatement.vi)Federal and state trial courts(1)Play important roles in the regulation of lawyers by setting rules for theconduct of lawyers in litigation, by sanctioning lawyers who violatethose rules, and by hearing and deciding motions to disqualify lawyerswho may have conflicts of interest that preclude their representation of particular clients.(2)Federal courts adopt their own standards for bar admission, and someadopt their own ethical rules.
 
(3)Each federal district court and court of appeals requires lawyers to beadmitted to practice before it.(a)Not required to take another bar exam.vii)Legislatures(1)Despite the inherent powers doctrine, Congress and the statelegislatures play a major role in the regulation of lawyers.(2)Adopt constitutions and statutes, including criminal laws, banking laws,securities laws, etc.(3)At least 40 states have statutes that make it a criminal offense toengage in the unauthorized practice of law (UPL).viii)Administrative Agencies(1)In general, lawyers admitted to practice in any state may appearbefore an agency of that state, and before any federal agency, withouta separate admission to practice before the agency.(2)Many agencies have special ethical or procedural rules.ix)Prosecutors(1)Reluctance by prosecutors to charge lawyers as defendants hasdiminished.x)Malpractice insurers(1)Insurance companies sell malpractice insurance policies to lawyers andlaw firm, but these companies also “regulate” the lawyers they insure.(2)Rules form a body of “private law” that governs lawyers who contractwith these companies.(3)Some insurers conduct audits to verify compliance with conditions of the insurance contracts.xi)Law firms and other employers(1)Some larger firms have developed a comprehensive “ethicalinfrastructure” to provide lawyers and nonlawyers with training, offerexpert advice about ethics and liability questions, and prevent conflictsof interest.(2)Many firms designate one or more lawyers to be “ethics counsel” or“loss prevention counsel” or both.(3)Other firms form ethics committees.(4)Imposed by contract rather than by a licensing authority or legislature.xii)Clients(1)Institutional clients have a quasi-regulatory role in relation to the lawfirms they employ(2)Many individual clients have very little ability to “regulate” theirlawyers but large corporations and government agencies are majorconsumers of legal services and so have a great deal of bargainingpower in dealing with law firms.B)The state ethics codesi)ABA adopted its first set of Canons of Ethics in 1908(1)Mostly exhortations to lawyers of “best practices”(2)Based on an ethics code that had been adopted in Alabama(a)Derived from the lectures of George Sharswoodii)1960s – Justice Powell led an initiative to rewrite the canonsiii)ABA Model Code of Professional Responsibility adopted in 1969(1)More like binding “law”(2)Separated binding disciplinary rules (DRs) from advisory ethicalconsiderations (ECs).iv)1977 – Appointment of the Kutak Commission to rewrite the rules.(1)First drafts met with criticismv)Model Rules of Professional Conduct adopted in 1983(1)States did not rush to adopt them

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