PR Outline

Purposes of a lawyer

advising clients on what the law is and how to comply with it

upholding the rule of law by acting as the legal system

counseling clients

Bar Requirements

pass the bar exam

pass the character and fitness background check

must have an undergraduate degree

pass the MPRE

what led to an increase in ethical standards and rules

watergate

critique of character and fitness examination

bar examiners have broad discretion in determining what constitutes good character and fitness

Winston NYT article

argued that hardly anyone gets disbarred so consumers should be able to leave reviews and regulate the legal market that way

seeks to move away from the system of lawyer self regulation

Credence good

quality of good can only be judged in connection with the providers; it is not a consumable good

Markovic view on Winston article

reviews cannot capture the quality of professionals and the notion that the people who have no legal experience can perceive the difference in the legal standards is dubious

traditional argument for strict regulation of the law

high possibility that lawyers take advantage of people because they know that they know nothing about the law

asymmetric information

lawyers have a lot of information but the client does not

Attorney Regulators

1) state courts & state bar associations

2) the ABA

3) administrative agencies, malpractice insurers, clients, law firms and other employers

state court and state bar associations

in most states, the highest court of the state adopts the rules of conduct that governs lawyers

the ABA passes the Model Rules of Professional Conduct as suggestions and the states either accept, reject, or modify the rules

regulation of the profession is within the authority of the courts because they control who practices before them

Inherent Powers Doctrine

provides a zone of protection (a negative power) for the courts to regulate attorneys where other actors (the legislature) cannot interfere

common law doctrine that captures the separation of powers

Mandatory bar (integrated/unified)

you cannot practice law without being a member of your state’s bar

McDonald v. Longley

lawyer claims that their 1st amendment rights were violated because of various lobbying efforts by the state bar association and access to justice initiatives they dud not agree with

5th circuit held that mandatory bars are constitutional but only so far as the activities regulate the legal profession or improve the quality of legal services but activities outside of this are unconstitutional

The American Bar Association

draft the model rules for proposal to the states

The general discipline system

1) Begins with a complaint that is lodged by a client or other attorneys

2) Complaints are investigated by the bar counsel and brought before a hearing committee if the complaint has merit

3) The committee conducts the hearing, makes factual findings, and recommends a sanction

4) Hearing committee decision is reviewed by judicial agency and/or highest state court

Location of discipline

You do not have to be admitted in a particular jurisdiction to be disciplined there

Jurisdictions can discipline you for conduct that occurred elsewhere

Courts have an inherent power to sanction attorneys whether or not they are admitted to that state’s bar if the conduct occurred in its jurisdiction

Discipline details

lawyers can be disciplined for almost anything that speaks to their fitness as a lawyer, does not have to be related to the legal practice

Discipline Choice of Law

1) if the matter is in front of a tribunal, the rules of the jurisdiction of where the tribunal sits will control

2) for any other conduct, the rules of the jurisdiction where the conduct occurred or where the predominate effect of the conduct is felt

Superior Attorney Responsibilities

a partner in a law firm or a lawyer with managerial authority must make reasonable efforts to ensure that all lawyers in the law firm conform to the rules of professional conduct

a lawyer will be responsible for another lawyer’s violation of the rules if the lawyer orders them with the knowledge of the specific conduct, ratified the conduct, or the lawyer knows of the conduct at a time when its consequences can be avoided and fails to take remedial action

responsibilities of the subordinate lawyer

a lawyer is subject to the rule of professional conduct even if they are acting at the direction of another

a subordinate lawyer does not violate the rules of professional conduct if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty

Nonlawyer assistances

a partner or a lawyer with managerial authority shall make reasonable efforts to ensure that the firm has given reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer (this includes giving directions)

Discipline reporting

another lawyer who knows that another lawyer has violated the rules and it raises a substantial question as to their honesty, trustworthiness, or fitness as a lawyer must report it

The attorney-client relationship

the attorney decides to represent a specific client for a specific engagement

attorney does not have to accept every client that comes along

a lawyer must assess the facts and circumstances of a prospective client matter before agreement to represent the client

a written agreement is not required

a lawyer must be careful in offering casual advice or assistance to others like friends and family because it can lead to liability

forming an attorney client relationship

an attorney-client relationship is created whenever an individual seeks and receives legal advice from an attorney in circumstances in which a reasonable person would rely on such advice

Duties to prospective clients

lawyer cannot represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter

prospective client investigation

a lawyer must inquire into and access the facts and circumstances of each representation to determine whether a lawyer may accept or continue the representation

malpractice arises when (elements for malpractice)

1) A lawyer owes a duty to a client because there has been an attorney client relationship formed

2) The lawyer failed to exercise the diligence and competence normally exercised by lawyers in similar circumstances

3) The breach of the duty caused the harm to the client

4) The breach resulted in actual, quantifiable damages