Module 1: Regulation of the Legal Profession

Which ethics rules apply on the MPRE unless told otherwise?

The ABA Model Rules of Professional Conduct (and the ABA Model Code of Judicial Conduct for judges). Most states have adopted versions of both.

Who ultimately has the power to regulate the legal profession in a state?

The state's highest court, not the state legislature. States regulate law practice under their police powers; case law, court rules, and statutes also play a role.

What is an 'integrated' bar?

A state bar in which membership is required to practice law in the state. State bars administer bar exams, run CLE, and assist with discipline.

Role of state legislatures in regulating lawyers

Every state legislature has passed statutes governing some aspects of legal practice, but the highest court has the ultimate power.

Federal court admission

Each federal court has its own bar. A lawyer must be a member of that court's bar to practice before it. Federal practice is governed by federal statutes, case law, and court/agency rules.

Are federal government lawyers subject to state ethics rules?

Yes. They are subject to the ethics rules of each state where they carry out their duties.

Limit on state bar admission requirements

Each state sets its own requirements, but they must be rationally related to the practice of law.

Good moral character: what conduct is reviewed?

All past conduct. Criminal conduct (conviction NOT required) and acts of moral turpitude (e.g., false statements to the admissions committee) can be grounds for denial. Evidence of rehabilitation is considered.

Does membership in the Communist Party show lack of good moral character?

No. Mere membership is not enough unless the applicant advocated violent overthrow of the government.

Can a state require bar applicants to be U.S. citizens or state citizens/residents?

No. Citizenship requirements are unconstitutional, and residency requirements are not valid either.

False statements in bar applications

An applicant must not knowingly make a false statement of material fact in their own application. A lawyer must not do so in connection with someone else's application (e.g., as a reference) or in a disciplinary matter.

Failure to disclose in bar admission or disciplinary matters

An applicant or lawyer must not (1) fail to respond to a lawful demand for information or (2) fail to disclose information needed to correct a misapprehension they know has arisen. Exception: information protected by confidentiality.

What counts as professional misconduct? (list)

Violating or ATTEMPTING to violate a rule; assisting/inducing another to violate; violating through another's acts; criminal acts showing dishonesty or unfitness; dishonesty, fraud, deceit, or misrepresentation; conduct prejudicial to the administration of justice; implying ability to improperly influence officials; knowingly assisting a judge's misconduct; discrimination or harassment in law practice.

Can a lawyer be disciplined for dishonest conduct outside law practice?

Yes. Any conduct involving dishonesty, fraud, deceit, or misrepresentation is misconduct, even if unrelated to practice and even without a criminal conviction.

Discrimination/harassment rule: protected bases

Race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, socioeconomic status. The rule does not limit a lawyer's ability to decline a case or give legitimate advice or advocacy.

★ Duty to report another lawyer's misconduct: when MANDATORY?

When the lawyer KNOWS another lawyer (or judge) committed a violation that raises a SUBSTANTIAL question about that lawyer's honesty, trustworthiness, or fitness.

Duty to report: when only DISCRETIONARY?

When the violation doesn't raise a substantial question about honesty or fitness, or when the lawyer only suspects (doesn't know) a violation occurred.

Exceptions to the duty to report

(1) Information protected by the duty of confidentiality; (2) information learned while serving in an approved lawyers' assistance program (substance abuse help for lawyers/judges).

Which states can discipline a lawyer?

Any state where the lawyer is admitted OR has provided or offered to provide legal services, regardless of where the misconduct occurred. One act can lead to discipline in multiple jurisdictions.

Disciplinary process: steps

Complaint filed with state disciplinary authority → if not dismissed, lawyer must respond → grievance committee investigates, may hold a hearing (lawyer gets procedural due process) → lawyer can have discipline reviewed by the state's highest court.

Choice of law: conduct connected with a proceeding before a tribunal

Apply the ethics rules of the jurisdiction where the tribunal sits, unless the tribunal's rules say otherwise.

Choice of law: all other conduct

Apply the rules of the jurisdiction where the conduct occurred, unless the predominant effect is elsewhere, then that jurisdiction's rules apply. Safe harbor: no discipline if the lawyer reasonably believed the predominant effect was in a jurisdiction where the conduct was proper.

Is one piece of conduct governed by more than one set of disciplinary rules?

No. Each state may DISCIPLINE the lawyer, but the conduct is governed by only ONE set of rules (chosen by the choice-of-law rule).

Advance agreement on 'predominant effect' jurisdiction

Allowed for CONFLICTS OF INTEREST only. Must be in writing with the client's informed consent. A court or disciplinary authority may consider it when deciding whether the lawyer reasonably believed that jurisdiction's rules applied.

Effect of discipline in another state (reciprocal discipline)

Most states treat another state's discipline as conclusive proof of misconduct but may impose their own sanctions. Federal courts evaluate independently, treating state discipline as competent evidence.

Disability proceedings

Proceedings for incapacitated lawyers (e.g., substance abuse) can lead to suspension until the lawyer shows rehabilitation.

Unauthorized practice of law (UPL): when is a lawyer subject to discipline?

For practicing where not licensed, or for assisting someone else (including a nonlawyer or a suspended/disbarred lawyer) in the unauthorized practice of law.

What is the 'practice of law'?

Activities that (1) involve legal knowledge and skill, (2) are traditionally performed by lawyers (appearing in court, settlement negotiations, drafting legal documents), or (3) involve giving legal advice.

What can nonlawyers do without committing UPL?

(1) Interview people; (2) appear before an agency that allows nonlawyer professionals; (3) fill in blanks on legal forms (e.g., real estate contracts); (4) prepare tax returns. Never give legal advice.

What can a nonlawyer employee do under a lawyer's supervision?

Interview clients (even without the lawyer present), do legal research, and draft documents (e.g., a motion) for the lawyer's review.

What can a nonlawyer employee NOT do, even if supervised?

Negotiate a settlement for a client, appear in court on a client's behalf, or give legal advice (e.g., advise on legal consequences of planned conduct). These are UPL.

Is helping someone appear pro se UPL?

No. Appearing pro se is not UPL, so a lawyer may help someone who represents themselves.

Consequences of UPL for a nonlawyer vs. a lawyer who assists

Nonlawyer: injunction, contempt, criminal prosecution. Lawyer who assists: discipline.

Can a lawyer train nonlawyers for law-related work?

Yes. A lawyer may advise and instruct nonlawyers whose jobs require knowledge of the law.

Assisting a suspended or disbarred lawyer

A lawyer is subject to discipline for helping a suspended or disbarred lawyer with work that constitutes the practice of law.

Prerequisite for temporary multijurisdictional practice

The lawyer is admitted in one state and is not disbarred or suspended in ANY state.

Four types of permitted TEMPORARY practice in another state

(1) Associate with a local lawyer who actively participates; (2) pro hac vice admission by the tribunal; (3) mediation/arbitration arising out of home-state practice; (4) other practice reasonably related to home-state practice.

What is pro hac vice?

Special permission from a tribunal for an out-of-state lawyer to appear for that one matter only.

Temporary practice by foreign lawyers

Allowed in situations similar to U.S. out-of-state lawyers, plus services governed primarily by international law or foreign law. Foreign lawyers get greater scrutiny (including for pro hac vice).

Two types of permitted PERMANENT practice (office) in a state where not admitted

(1) Lawyer employed by their only client (in-house or government counsel); (2) services authorized by federal or local law (e.g., patent prosecution).

In-house counsel practicing where not admitted: limits

Must seek pro hac vice to litigate in that state, and must consult a local lawyer before advising on the law of a specific U.S. jurisdiction.

Which disciplinary rules apply to a lawyer practicing in another jurisdiction?

The lawyer is subject to the disciplinary rules of BOTH jurisdictions (home and host).

★ Duty of partners/managers regarding firm ethics

Must make reasonable efforts to set up internal policies and procedures so all firm lawyers follow the RPC (e.g., conflict checks, docketing deadlines, client funds, supervising new lawyers). Measures can vary with firm size.

Duty of a supervisory lawyer who learns of misconduct

Must intervene to prevent avoidable consequences. E.g., if a subordinate misrepresented a material fact in negotiation, BOTH supervisor and subordinate must correct it.

★ When is a lawyer responsible for ANOTHER LAWYER's misconduct?

(1) The lawyer ordered it or knowingly ratified it; OR (2) the lawyer is a partner/manager/direct supervisor, learns of it when it can still be remedied, and fails to take reasonable remedial action.

Is a managing partner automatically liable when an associate knowingly violates the rules?

No. Probably not, unless the partner ordered or ratified it, or knew in time to fix it and didn't. Having reasonable firm policies satisfies the managerial duty.

Duty regarding nonlawyer assistants

All lawyers should instruct and guide nonlawyer assistants (inside or outside the firm) on ethics and are ultimately responsible for their work. Partners, managers, and supervisors must make reasonable efforts to ensure nonlawyers act ethically.

When is a lawyer responsible for a NONLAWYER's misconduct?

Same test as for lawyers: (1) ordered or knowingly ratified it; OR (2) partner/manager/direct supervisor who learns of it when it can be remedied and fails to take reasonable remedial action.

Subordinate lawyer following a supervisor's order

Subject to discipline if they carry out an order to commit a CLEAR violation. Not subject to discipline for following a supervisor's REASONABLE resolution of an ARGUABLE ethics question.

★ Partnership with a nonlawyer

Prohibited if ANY of the partnership's activities are the practice of law. A non-law business (e.g., a restaurant) with a nonlawyer is fine.

Nonlawyer involvement in a for-profit law organization (corporation/association)

Prohibited if a nonlawyer owns any interest, is a director or officer, or has the right to direct or control the lawyer's professional judgment.

Fee splitting with nonlawyers: general rule

Prohibited, with very limited exceptions.

Four exceptions to the ban on sharing fees with nonlawyers

(1) Death benefits paid to a deceased lawyer's estate or designees; (2) paying the purchase price of a dead, disabled, or disappeared lawyer's practice to the estate or representatives; (3) including nonlawyer employees in compensation or retirement plans funded by fees; (4) sharing court-awarded fees with a nonprofit that employed or recommended the lawyer.

Third party who pays or recommends a lawyer

The lawyer must not let a person who recommends, employs, or pays them for serving a client direct or regulate the lawyer's professional judgment.

Noncompete agreements for lawyers

Prohibited. Employment or partnership agreements may not restrict a lawyer's right to practice after the relationship ends. Exception: agreements concerning retirement benefits.

Settlement agreement restricting a lawyer's right to practice

Prohibited (e.g., a promise never to represent other clients against the opposing party).

Requirements for selling a law practice

(1) The ENTIRE practice or entire field of practice is sold to one or more lawyers/firms; (2) written notice to the seller's clients; (3) seller stops private practice (entirely or in that field) in the geographic area. Seller must use competence in finding a qualified buyer.

Client protections after sale of a practice

Buyer must take ALL client matters, not just lucrative ones. Fees cannot be increased because of the sale; buyer must honor existing fee agreements.

What are law-related (ancillary) services?

Nonlegal services such as financial planning, accounting, tax return prep, or title insurance. Lawyers may provide them to clients and nonclients.

When do the RPC apply to law-related services? (2 situations)

(1) Services are not distinct from the lawyer's legal services, so the RPC apply to both (plus business-transaction conflict rules if a client relationship exists); (2) services are provided through an entity the lawyer controls, unless the lawyer takes reasonable steps to make sure recipients know the services aren't legal services and aren't covered by the RPC.

HYPO 1A: Which can a state require of bar applicants? (A) state residency | (B) good moral character | (C) U.S. citizenship | (D) graduation from an accredited law school

(B) and (D). These are rationally related to law practice. Residency and citizenship requirements are not valid.

HYPO 1B: A divorce lawyer cheats online jewelry customers by misrepresenting gem quality. Subject to discipline? (A) Yes, only if it violates state law | (B) Yes, dishonesty/misrepresentation | (C) No, not until convicted | (D) No, unrelated to practice

(B). Any conduct involving dishonesty or misrepresentation is misconduct, even outside law practice and without a conviction.

HYPO 1C: A partner commits an isolated advertising violation that doesn't raise a substantial question about honesty or fitness. The lawyer who knows: (A) must report | (B) may report but not required | (C) is prohibited from reporting

(B). Reporting is mandatory only when the violation raises a substantial question about honesty, trustworthiness, or fitness.

HYPO 1D: A nonlawyer friend is drafting wills for paying clients and asks the lawyer to review his draft. Can the lawyer do this?

No. Drafting wills for others is the practice of law, so helping would assist UPL and subject the lawyer to discipline.

HYPO 1E: An associate knowingly leaks a celebrity client's confidential info to a gossip blog, against firm policy. Is the managing partner subject to discipline? (A) Yes | (B) Probably not

(B) Probably not. The partner didn't order or ratify it and there's no indication they knew in time to remedy it. The firm had a policy, so reasonable efforts were made.

HYPO 1F: Can a lawyer run a fast-food restaurant with a nonlawyer? (A) Yes | (B) No

(A) Yes. The ban applies only to partnerships whose activities include practicing law.

HYPO 1G: Seller sells only her 10 most lucrative PI cases (out of 15) to a buyer, notifies those clients, and withdraws from the other 5. Proper? (A) Yes | (B) No

(B) No. The entire practice or field must be sold, and the buyer must take all matters, not just lucrative ones.

PRACTICE Q: Abby is licensed in State A, admitted pro hac vice in State B. During State B litigation she does something that violates State B's rules but is allowed under State A's. Which rule applies? (A) State A, where licensed | (B) State B, where litigation took place | (C) Each state applies its own rule

(B) State B. Conduct connected with a pending proceeding is governed by the rules of the jurisdiction where the tribunal sits. (C) is wrong: each state may DISCIPLINE her, but only ONE set of rules governs the conduct.

PRACTICE Q (select all): A lawyer is subject to discipline for having a nonlawyer employee: negotiate a settlement | interview a client without the lawyer | research and draft a motion for lawyer review | appear in court for a client | advise a client on legal consequences

Negotiate a settlement, appear in court, and advise the client. Those are UPL. Interviewing clients and researching/drafting under supervision are permitted.