Power to regulate the legal profession - State's Highest Court
-Adopts ethical rules
-Enforces through disciplinary commission or bar association
Congress and State Legislatures
-Have enacted laws that govern certain aspects of law practice (e.g., attorney-client privilege).
Admission to the l...
MPRE (2023) ALREADY PASSED
Power to regulate the legal profession - ✔✔State's Highest Court
-Adopts ethical rules
-Enforces through disciplinary commission or bar association
Congress and State Legislatures
-Have enacted laws that govern certain aspects of law practice (e.g., attorney-client privilege).
Admission to the legal profession: ADMISSION REQUIREMENTS (8.1) - ✔✔Must be *rationally
related* to the practice of law, e.g.:
1. Graduation from accredited law school
2. Oath to uphold the constitution
3. Good moral character
NOT Rational Admission Requirements to legal profession - ✔✔1. Citizenship
2. Residency (of state seeking admission)
Duty to cooperate with character investigations - ✔✔1. Cannot knowingly make *false statements*
of material fact
2. Must *respond* to all requests for information
3. Must *correct* any misapprehensions
But NOT required to disclose *confidential information*.
Admission to legal profession: Effect of Criminal Acts and Other Misconduct - ✔✔To result in
rejection, the misconduct must involve *moral turpitude*:
i. Crimes involving intentional dishonesty
ii. Crimes of violence
iii. Lying is always moral turpitude even if not crime
What constitutes professional misconduct? - ✔✔- Violating the RPC
,- Attempting to violate the RPC
- Helping someone else violate the RPC
- Using someone else to violate the RPC
What constitutes professional misconduct?: Committing certain crimes - ✔✔Crimes relevant to
honesty, trustworthiness, or fitness (relevant to practice of law) Ex. substantial interference w/
administration of justice
What constitutes professional misconduct?: Committing certain acts - ✔✔Acts of dishonesty, fraud,
deceit, or misrepresentation (ex. plagiarism, cheating on bar exam)
What constitutes professional misconduct?: Harassment or Discrimination in Law Practice - ✔✔- No
harassment or discrimination based on race, sex, religion, national origin, ethnicity, age, sexual
orientation, gender identity, marital status, or socioeconomic status.
- Does not affect ability to accept, decline, or withdraw from a case (need other proof of
discrimination)
- Trying to promote diversity is not a violation
When Reporting Profession Misconduct IS Mandatory - ✔✔Violation raises *substantial* question as
to lawyer's *honesty, trustworthiness*, or *fitness* to practice. (e.g., cheating on taxes, dipping into
client funds, destroying evidence)
Note: Duty to report applies to judge's substantial violations of Code of Judicial Conduct
When Reporting Profession Misconduct Is NOT Mandatory - ✔✔1. Question raised was not
substantial (e.g., conflicts of interest, advertising)
2. Suspect violation, but don't know
Note: Same exceptions apply to judge's violations
EXCEPTIONS to Mandatory Reporting of other attorney misconduct - ✔✔1. Violation of duty of
confidentiality to a client (have to refuse to respond rather than lie)
2. Learned of violation in lawyer's assistance program (substance abuse programs)
DISCIPLINARY AUTHORITY (8.5) - ✔✔i. Any state where lawyer is admitted has power to discipline
(even through pro hac vice)
,ii. Any state where lawyer provided or offered services
UNAUTHORIZED PRACTICE OF LAW (5.5) - ✔✔Unauthorized practice = practicing without a license.
Subject to discipline for engaging in unauthorized practice or *assisting* someone else in
unauthorized practice.
What is the "Practice of Law"? - ✔✔1. Appearing at judicial proceeding
2. Drafting documents
3. Negotiating settlements
4. Giving legal advice
What is NOT the "Practice of Law"? - ✔✔1. Interviewing people
2. Filling in forms
3. Preparing tax returns
*NOTE*: Appearing pro se is NOT unauthorized practice! A lawyer can help someone do that.
Multi-Jurisdictional Practice: Methods of *Temporary* Out-of-State Practice (MR. AP) - ✔✔1.
*Associate* with locally licensed attorney
2. Admission *pro hac vice* (for this matter only)
3. *Mediation* or *arbitration*
4. Matter *reasonably related* to home state practice
Multi-Jurisdictional Practice: *Permanent* Out-of-State Practice (IGF) - ✔✔1. *In-house counsel*
and *government lawyer* can engage in *non-litigation* practice across state lines (must appear pro
hac vice if want to litigate)
2. Lawyers in *certain restricted fields* are specifically authorized by law to practice in other states
Duty of Partners/Managers/Supervisory Lawyers to Prevent Ethical Violations - ✔✔1. Partners and
managers must take reasonable measures to ensure compliance with RPC
2. Supervisory lawyers have the same duty with respect to subordinates
, Vicarious Responsibility of Partners/Managers/Supervisory Lawyers (OMN) - ✔✔1. *Ordered* or
ratified misconduct
2. Failed to avoid or *mitigate* consequences of violation
3. Partners, managers, and supervisors have the same duties with respect to *nonlawyers* working
on client matters (both inside and outside the firm).
Responsibilities of a Subordinate Lawyer - ✔✔Acting on orders of another lawyer does not excuse
misconduct UNLESS it was a *reasonable* resolution of an *arguable question* of professional duty.
- Usually technical in nature
PROFESSIONAL INDEPENDENCE (5.4) - ✔✔- No partnerships with nonlawyers if any partnership
activities involve practice of law
- No nonlawyer control or ownership interest in firm
- No fee splitting with nonlawyers (except certain instances)
Exceptions to no fee splitting with nonlawyers - ✔✔- Death benefits to lawyer's estate
- Funds to purchase practice from deceased, disabled, or disappeared lawyer
- Bonus plans and regular salaries
- Court-awarded legal fees to nonprofit that retained or recommended lawyer
RESTRICTIONS ON RIGHT TO PRACTICE LAW (5.6) - ✔✔*No Non-Compete Agreements.*
- Law firm-related agreements can't restrict right to practice when relationship ends, EXCEPT for
retirement benefit agreements
*Settlement agreements* for clients can't restrict right to practice or not bring future claims against
a party
Sellers' duties when buying or selling a practice - ✔✔1. Sell entire practice or entire practice area
a. Cannot sell select clients
2. Written notice to clients that includes:
a. notice of sale,
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