Sources and Applications of Legal Ethics

Sources and Applications of Legal Ethics

MR 5.5 – Unauthorized practice of law

Note: can counsel a person going pro se, etc. – think reasonably

(a)  A lawyer shall not practice law in a jurisdiction in violation of the regulation og the legal profession in that jurisdiction, or assist another in doing so.

(b)  A lawyer who is not admitted to practice in this jurisdiction shall not:

(1)  except as authorized by these rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or

(2)  hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.

(c)  A lawyer admitted in another US jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that:

(1)  are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter;

(2)  are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;

(3)  are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or

(4)  are not within paragraphs (c)(2) or (c)related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.

(d)  A lawyer admitted in another US jurisdiction and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that:

(1)  are provided to the lawyer’s employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission; or

(2)  are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction.

See explanations pg. 242 - 246

MR 8.1 – Bar admission and disciplinary matters

An application for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:

(a)  knowingly make a false statement of material fact; or

(b)  fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by MR 1.6/

MR 8.2 – Judicial and Legal officials

(a)  A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.

(b)  A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct.

MR 8.3 – Reporting Professional Misconduct

(a)  A lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

(b)  A lawyer having knowledge that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority.

(c)  This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while serving as a member of an approved lawyer assistance program to the extent that such information would be confidential if it were communicated subject to the attorney-client privilege.

MR 8.4 – Misconduct

It is professional misconduct for a lawyer to:

(a)  violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b)  commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;

(c)  engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d)  engage in conduct that is prejudicial to the administration of justice;

(e)  state or imply an ability to influence improperly a government agency or official; or

(f)  knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.

Note: a lawyer should be professionally answerable for crimes of “moral turpitude.”

MR 8.5 – Disciplinary authority; choice of law

(a)  Disciplinary authority. A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer’s conduct occurs. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction where the lawyer is admitted for the same conduct.

(b)  Choice of Law: In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows:

(1)  for conduct in connection with a proceeding in a court before which a lawyer has been admitted to practice (either generally or for purpose of proceeding), the rules to be applied shall be the rules of the jurisdiction in which the court sits, unless the rules of the court provide otherwise; and

(2)  for any other conduct, the rules of the jurisdiction in which the lawyer’s conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. A lawyer shall not be subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur.

CRPC 1-100 (pg. 617) Definitions, etc.

CRPC 1-110 Disciplinary Authority of the State Bar

CRPC 1-120 à A member shall not knowingly assist in, solicit, or induce any violation of these rules or the State Bar Act.

CRPC 1-200 – False Statements Regarding Admissions to the State Bar

(a)  A member shall not knowingly make a false statement regarding a material fact or knowingly fail to disclose a material fact in connection with an application for admission to the State Bar.

(b)  A member shall not further an application for admission to the State Bar of a person whom the member knows to be unqualified in respect to character, education, or other relevant attributes.

(c)  This rule shall not prevent a member from serving as counsel of record for an applicant for admission to practice in proceedings related to such admission.

CRPC 1-300 – Unauthorized Practice of Law

(a)  A member shall not aid any person or entity in the unauthorized practice of law

(b)  A member shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction.

§ 6067 – Oath

§ 6068 – Duties of Attorney

It is the duty of an attorney to do all of the following:

(a)  to support the constitution and laws of the US and of this state.

(b)  To maintain the respect due to the courts of justice and judicial officers.

(c)  To counsel or maintain those actions, proceedings, or defenses only as appear to him or her legal or just, except the defense of a person charged with a public offense.

(d)  To employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.

(e)  (1) to maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.

(2) Notwithstanding paragraph (1), an attorney may, but is not required to, reveal confidential information relating to the representation of a client to the extent that the attorney reasonably believes the disclosure is necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death of, or substantial bodily harm to, an individual.

(f)  to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he or she is charged.

(g)  Not to encourage either the commencement or the continuance of an action or proceeding from any corrupt motive of passion or interest.

(h)  Never to reject, for any consideration personal to himself or herself, the cause of the defenseless or the oppressed.

(i)  To cooperate and participate in any disciplinary investigation or other regulatory or disciplinary proceeding pending against the himself or herself. However, this subdivision shall not be construed to deprive an attorney of any privilege guaranteed by the 5th A. to the constitution of the US or any other constitutional or statutory provision. …

(j)  To comply with the req. of section 6002.1

(k)  To comply with all conditions attached to any disciplinary probation, including a probation imposed with the concurrence of the attorney.

(l)  To keep all agreements made in lieu of disciplinary prosecution with the agency charged with the atty. discipline

(m) To respond promptly to reasonable status inquiries of clients and to keep clients reasonably informed of significant developments in matters with regard to which the atty. has agreed to provide legal services.

(n)  To provide copies to the client of certain documents under time limits and as proscribed in a rule of professional conduct which the board shall adopt

(o)  To report to the agency charged with atty. discipline, in writing, within 30 days of the time the atty. has knowledge of any of the following:

(1)  the filing of three or more lawsuits in a 12-month period against the atty. for malpractice or other wrongful conduct committed in a professional capacity.

(2)  The entry of judgment against the atty in any civil action for fraud, misrepresentation, breach of fiduciary duty, or gross negligence committed in a professional capacity.

(3)  The imposition of any judicial sanctions against the atty, except for sanctions for failure to make discovery or monetary sanctions of less than $1,000.

(4)  The bringing of an indictment or information charging a felony against the atty

(5)  The conviction of the atty, including any verdict of guilty, or plea of guilty or no contest, of any felony, or in any misdemeanor committed in the course of the practice of law, or in any manner in which a client of the atty was the victim, or a necessary element of which, as determined by the statutory or common law definition of a misdemeanor, involves improper conduct of an attorney, including dishonesty or other moral turpitude, or an attempt or a conspiracy or solicitation of another to commit a felony or any such misdemeanor of that type.

(6)  The imposition of discipline against the atty for any professional or occupational disciplinary agency or licensing board, whether in CA or elsewhere.

(7)  Reversal of judgment in a proceeding based in whole or in part upon misconduct, grossly incompetent representation, or willful misrepresentation by an atty.

(8)  As used in this subdivision, “against the atty” includes claims and proceedings against any firm of attys for the the practice of law in which the atty was a partner at the time of the conduct complained of and any law corporation in which the atty was a shareholder at the tie of the conduct complained unless the matter has to the atty’s knowledge already been reported by the law firm or corporation.

(9)  The State Bar may develop a prescribed form for the making of reports required by this section, usage of which it may require by rule or regulation.

(10)  The subdivision is only intended to provide that the failure to report as required herein may serve as a basis of discipline.

§ 6077 – Rules of Professional Conduct Binding; Board’s Authority to Discipline Members for willful breach.

The rules of prefessional conduct once approved by the Supreme Court are binding upon all members of the state bar.

For a willful breach of any of these rules, the board has the power to discipline members of the State Bar by reproval, public or private, or to recommend to the Supreme Court the suspension from practice for a period not exceeding three years of members of the State Bar.

§ 6100 Disbarment or Suspension

For any causes provided in this article, arising after an atty’s admission to practice, he or she may be disbarred or suspended by the Sup. Ct. (can summarily disbar any atty)

§ 6101 Conviction of Crime; Notice of Pendency of Action; Record of Conviction; Proceeding

§ 6102 Immediate Suspension and Subsequent Disbarment Upon Conviction of Crime; Crimes Involving Moral Turpitude or Felonies; Procedure