Legal Profession Outline:

Professor Janasie

  1. Introduction
  2. Sources of Authority for Regulation of Lawyers
  3. Model Rules (ABA):

1908 ABA Canons of Professional Ethics: Canon 1 – 47 (32 Canons in 1908; 47 by 1964)

1969 ABA Code of Professional Responsibility (Model Code): confusing

organization into canons, ethical considerations (which were to be aspired

to rather than binding), and disciplinary rules (these were binding);

established minimum standards that lawyers were required to follow and

standards that were enforced by the disciplinary committees

a. ABA is a private organization – codes must be adopted by the states

before they are “law”

b. Was adopted by most states within a couple of years

1983 Model Rules of Professional Conduct: Kutak Commission (chairman Robert Kutak) drafted new rules; change direction from the ’69 rules and follow a UCC or restatement-like approach by placing the rule of professional responsibility in text and including elaborative material in the comments; amended in 2001 with further amendment proposed as of 2006

a. Rules are black letter law (binding)

b. Comments illustrate the rules in the restatement format

c. Roughly 40 states and other jurisdictions have adopted these rules,

but most of those have altered some of the important rules, such as

those concerning confidentiality; a few other states have revised

their legal ethics rules, drawing partly on the ABA Model Rules for

guidance; finally, a few states have retained their old rules pattered

on the ABA Code.

Disciplinary process: Consequence for a violation of an Ethics Rule -

a. Client, judge, or other files complaint(no standing

requirement)

b. Another lawyer, RCP 8.3: obligation to report professional

misconduct. Lawyers have obligation to report ethical violations

when they know they’ve happened. See also RPC 8.1: applicant to

bar has to answer questions.

c. State Bar decides whether or not to investigate

i) Complaining party has no recourse if bar decides against it

  • Unless the lawyer’s conduct was also a legal violation

ii) SEC has its own ethics rules

iii) Federal court uses ethics rules of the state where the court

resides

d. Investigator reports to a disciplinary board the results of the investigation and gives recommendations for disposition of the matter

e. The Board reviews those recommendations then decides to do one of the following:

Dismiss the matter

Request additional investigation

Issue a private or public reprimand upon consent of the attorney

File a formal complaint with the state supreme court, seeking specific action such as reprimand, suspension, disbarment, or other sanctions

f. Supreme Court has a hearing and either dismisses or imposes discipline; the Board and the attorney can appeal this decision

g. Discipline: refers to the penalties imposed by a disciplining agency

on an attorney who has breached a rule or statue for which

discipline can be imposed

i) Private sanctions:

  • Written admonition by disciplinary counsel imposed with the consent of the respondent and the approval of the chair of a hearing committee; cannot be imposed after formal charges have been issued. Admonitions shall be in writing and served upon the respondent. They constitute private discipline since they are imposed before the filing of formal charges. Only in cases of minor misconduct, when there is little or no injury to a client, the public, the legal system, or the profession, and when there is little likelihood of repetition by the lawyer, should an admonition be imposed. A summary of the conduct for which an admonition was imposed may be published in a bar publication for the education of the profession, but the lawyer shall not be identified. An admonition may be used in subsequent proceedings in which the respondent has been found guilty of misconduct as evidence of prior misconduct bearing upon the issue of the sanction to be imposed in the subsequent proceeding.
  • Reprimand: does not limit the attorney’s right to practice law (mildest form of discipline)

ii) Public sanctions:

  • Suspension: in NJ, the shortest suspension is 3 months; In NJ, you have to petition for reinstatement even after suspension; may include the requirement that the attorney take and pass a legal ethics bar exam before being readmitted to active practice; can be stayed and attorney placed on conditional probation
  • Probation
  • Reprimand: NJ no longer has private reprimands; names the attorney and describes the improper conduct, thus serving both an educational and a warning function
  • Limitation of (nature and/or extent) of future practice
  • Can be assessed costs of the investigation/disciplinary hearing
  • Upon order of the court or the board, or upon stipulation, restitution to persons financially injured and reimbursement to the client security [protection] fund

iii) Disbarment(also public):

  • In NJ: disbarment is PERMANENT
  • In many states, you can apply for reinstatement even after disbarment; sometimes the attorney will also have to take and pass the bar and an ethics exam again
  1. Lawyers now have a right to a federal due process hearing

Can also cause legal problems (but the two problems are distinct)

i) Violation of an ethics rule dramatically increases the risk of

malpractice liability

Distinction btw. malpractice and disciplinary proceedings is who hears the case. Also, malpractice case is intended to make the client whole, disciplinary proceedings are to punish the attorney and protect the public. Malpractice can be intentional tort, breach of fiduciary duty, breach of contract, or an unintentional tort (negligence – see Model Rule 1.1).

Malpractice as an unintentional tort:

  • Duty of care exists toward the client: a person can become a client simply by asking for legal help, if the attorney does not decline to give help, and the attorney knows or should have known that the person will reasonably rely on the attorney for legal help.
  • R 1.18: duties to prospective clients, applies.
  • Invited reliance: if the attorney invites the non-client to rely on work the attorney did for a client, and the non-client does so rely.
  • Where a non-client is intended to benefit. E.g., trusts and wills.
  • Breach of fiduciary duty to the client.
  • Standard of care for GP is skill and knowledge ordinarily possessed under similar circumstances. If attorney holds himself out as a specialist, he should have the skill and knowledge of a specialist. Relevant jurisdiction: attorneys in rural areas are held to same standard as lawyers in urban areas.
  • Breach of duty of care: attorney has to act in good faith. Expected to be well-informed and to do reasonable research to make informed decisions. Not answerable for a mere error of judgment or mistake in a point of law that’s not yet settled by the court of last resort. Lawyer need not have experience in a particular area before accepting a case. See Comment 2 to R. 1.1.
  • Actual causation: P must prove that the attorney was the actual cause of the damages. “But for” test or “substantial factor” test: several acts unite to cause injury, and any one alone would have been enough. When malpractice action is tried, there’s a case within a case: P has to prove he would have won the underlying case.
  • Proximate causation: injury should be expected.
  • Damages: to obtain money damages, the P must plead and prove damages; Direct Damages: those for the immediate, natural, and anticipated consequence of the wrong (e.g. the value of a plot of land that the P lost because of the D attorney’s negligent title search); Consequential Damages: damages for loss that flows indirectly but foreseeably from the D’s negligence (e.g. foreseeable injury to P’s reputation/loss of wages = D’s responsibility for not only the amount of the judgment but also for P’s loss of earnings)

Defenses to malpractice claims:

  • Reasonable belief that acts were required by law or ethics rules.
  • What client wanted attorney to do was illegal or fraudulent. See Comment to R. 1.2.
  • Comparative and contributory negligence doctrines apply.
  • Assumption of risk and failure to mitigate are partial defenses.
  • Client can’t base case on what he instructed lawyer to do or not do, if properly advised.
  • SOL applies, subject to three principles:
  • SOL doesn’t usually run while attny is still representing client.
  • Discovery rule applies.
  • SOL doesn’t start to run until the alleged malpractice injures the P.

Vicarious liability:

  • Firm is liable for its employee’s acts.
  • Exactly who is liable depends on the organizational structure.

Malpractice Insurance:

  • Partnership Corporations in NJ must have malpractice insurance, but solos don’t.
  • Not required in most states.
  • See pp. 153-154 for different coverage details.

Restatement of the Law Governing Lawyers:

  • Permits a lawyer and client to agree to limit a duty that the lawyer would otherwise owe to the client, provided that the limit is reasonable in the circumstances and that the client is adequately informed and consents to the limit.
  • A reasonable agreement to limit the client’s duty would not violate the general rule that prohibits a lawyer from trying to escape malpractice liability by prospective contract with the client.

Multi-Jurisdictional and Multi-Disciplinary Practice:

  • Cross-border practice is becoming more common. ABA revised R. 5.5(c) to allow a person in good standing in one jurisdiction to practice, temporarily in others under certain circumstances.
  • NJ has special rule and admission for in-house counsel.
  • Attorneys can’t associate with non-attorneys in a multi-jurisdictional practice.

ii) Some rules are designed so that the lawyer’s conduct is unethical

because it is illegal (ex. obstruction of justice); Attorneys can be disciplined for acts not relating to practice of law. RPC 8.4. E.g., 6 month suspension in NJ for domestic violence. CDS: 3 month suspension. Serious criminal conviction will likely result in disbarment.

In NJ, it’s (lowest to highest): admonition, public reprimand, censure (new: more severe reprimand), suspension (severe, and reinstatement is not automatic), disbarment (no opportunity to be reinstated). Disciplinary actions are published in the NJ Law Journal.

Attorneys can be disciplined for acts not relating to practice of law. RPC 8.4. E.g., 6 month suspension in NJ for domestic violence. CDS: 3 month suspension. Serious criminal conviction will likely result in disbarment

  1. FRCP Rule 11: Signing of Pleadings, Motions, and Other Papers; Representations to Court; Sanctions–duty of candor (see appendix)
  2. State Rules, Statutes, Rules of (Local) Court: each state has a set of ethics rules that govern the lawyers in that state; some states also have special statutes that govern the conduct of lawyers who appear before them;
  3. State Supreme Court Rules:

a)since lawyers are officers of the court, the state supreme court often holds that it has the ultimate authority to regulate them.

b)limited only by the state’s constitution

  1. Federal Statutes:

a)Sarbanes-Oxley legislation creates duty to report corporate misconduct

  1. ABA Model Code of Judicial Conduct: ABA promulgated them in 1972; most states have adopted them; revised in 1990; further revision pending 2006
  2. Advisory Opinions of Ethics Committees: written by groups of lawyers; some are published; they function as guidelines on how the ethics rules apply to particular fact situations; not binding on any court or disciplinary body, but are often cited as authority
  3. Ethics Hot Lines: staffers will refer the caller to the relevant cases, opinions, and other authorities, but the staff does not give advice; calls cost a fee – initial free consultation for non-members then a fee of $60/hour; $45/hour for members

Ethics: the study of the general nature of morals and of the specific moral choices to be made by the individual in his relationship with others; the philosophy of morals

Legal Ethics: the rules or standards governing the conduct of the members of a profession, i.e. the legal profession

Duty to be Courteous/Respectful at all Times:

In the Matter of Vincenti 92 N.J. 591 (1983): in a child custody case, D “exhibited constant and deliberate disregard of minimum standards of conduct expected of members of the bar, through, inter alia, repeated discourteous, insulting and degrading verbal attacks on judge and his rulings”; Held: where these repeated discourses substantially interfere with orderly process of trial, it merits suspension from practice of law for one year or until further order of the court. Rule: “lawyers are required to display courteous and respectful attitude not only towards court but towards opposing counsel, parties in the case, witnesses, court officers, clerks and, in short, towards everyone and anyone who has anything to do with the legal process”

1. Attorney’s are “officers of the court”

Basics:

  • fair fee / agreement in writing
  • be diligent and keep client informed
  • loyalty to client’s interests
  • treat everyone with civility, honesty and respect

II. Admission to the Practice of Law

ARTICLE 8 - Maintaining the Integrity of the Profession

  1. Bar Admission and Disciplinary Matters - Rule 8.1
  2. Bar applicant must not lie to the bar admissions committee.8.1(a)
  3. Bar applicant must not hide material information from the bar admissions committee.8.1(b)
  4. Bar applicant must respond to a lawful demand for information.8.1(b)

a)there may be fifth amendment protection in a proper case.

  1. It is a violation for a lawyer to knowingly make a misrepresentation or omission in connection with a disciplinary investigation of the lawyer’s own conduct.8.1(a)
  2. Constitutional Limitations on Bar Admission requirements:

a)a state bar may not condition bar admission on permanent residency in the state if the person has passed the bar exam - Piper

b)a state may not condition bar admission without passing the exam on permanent residency - Friedman.

c)A state bar may not condition bar admission on character traits or moral behavior that has no rational relationship to the lawyer’s fitness to practice - Cord v. Gibb

d)a state may refuse to allow bar admission to a candidate who has a past history of breaches of fiduciary duty reflecting on his ability to practice unless the candidate provides clear and convincing evidence that the breaches were sufficiently far in the past that they are not likely to recur - Mustafa

The Admissions Process: generally you graduate from law school, pas the state’s bar exam, and demonstrate that you possess good moral character; applicant has burden of proving good character. Admissions must be listed on letterhead if firm has offices in more than one state. Individuals are bound by the RPC from the moment they step foot into Law School. Disclose everything on your bar application– it is less about the bad things you have done and more about your disclosure/honesty as to them. The character and fitness review is only done in cases where there is a question – not everyone goes through it.

1. Residency Requirements: in the past, most states imposed a residency requirement, but since 1985 the Supreme Court has repeatedly struck down such requirements.

Supreme Court of New Hampshire v. Piper (p. 31): the court held that the New Hampshire Supreme Court’s refusal to swear in a Vermont resident who has passed the State’s Bar Exam violated the Constitution’s privileges and immunities clause. The court established a narrow exception for when a state can demonstrate “substantial” reasons for discriminating against nonresidents and can show that the difference in treatment bears a close relation to those reasons. (similar cases include: Frazier v. Heebe (where the court invoked its supervisory power to invalidate a residency requirement); Supreme Court of Virginia v. Friedman (where a residents who were licensed out of state were allowed to waive the Virginia bar but non-residents licensed out of state were required to take the bar exam)

Barnard v. Thorstenn (p. 31): the court’s best chance to find “substantial” reasons to discriminate against non-residents in bar admission; two NY and NJ lawyers challenged the Virgin Island Bar’s 1 year residency requirement; the Virgin Islands gave 5 reasons to support its position

1. the geographic location and poor communications infrastructure

would make it hard for non-residents to make court appearances on

short notice

2. delays in accommodating non-resident lawyer’s schedules would

increase the courts’ caseloads

3. delays in publication and lack of access to local statutory and case

law would adversely affect non-resident lawyer’s competence

4. the bar does not have adequate resources to supervise a nationwide

bar membership

5. non-resident bar members would be unable to take on a fair share of

indigent criminal defense work

The court did not find that any of these reasons justified the residency requirement (6-3 decision).

As a result, residence-based waivers of the bar exam are no longer allowed; these states but either allow any non-resident admission upon waiver on the same basis as residents, or abolish the waiver privilege; the end result is that it’s now harder to gain admission to the bar for those who are already licensed elsewhere but wish to expand or change their geographical practices

2. Character Requirements: all states require that an application for admission to the

bar possess “good moral character” although enforcement of this requirement is

uneven and sporadic; the elements of good moral character are vague but there

is general agreement that they include:

Honesty

Trustworthiness

Candor with the court and Board of Bar Examiners (all parts)

Respect for the law (and disciplinary rules)

Respect for the rights of others

Most common trouble spots for bar applicants:

Dishonesty on the bar application: it is the offense most likely to get the applicant into trouble;

Recent criminal conduct

Fraud or other financial misdeeds

On Good Moral Character - -

Konigsberg v. State Bar of California (p. 33): Under California law, the State Supreme Court may admit to the practice of law any applicant whose qualifications have been certified to it by the California Committee of Bar Examiners. In hearings by that Committee on his application for admission to the Bar, petitioner refused to answer any questions pertaining to his membership in the Communist Party, not on the ground of possible self-incrimination, but on the ground that such inquiries were beyond the purview of the Committee's authority and infringed rights of free thought, association and expression assured him under the State and Federal Constitutions. The Committee declined to certify him as qualified for admission to the Bar on the ground that his refusals to answer had obstructed a full investigation into his qualifications. The State Supreme Court denied him admission to practice. Held: Denial of petitioner's application for admission to the Bar on this ground did not violate his rights under the Fourteenth Amendment. Still, the term "good moral character" can be defined "in an almost unlimited number of ways. Konigsberg had refused to answer questions concerning his political opinions and associations, including his membership in the Communist Party, on the ground that the question invaded his First Amendment rights. His alleged association with the Communist Party was held to be no basis for concluding that he had a bad moral character but his refusal to comply with the bar’s inquiry was. (1957)