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Unformatted text preview: CHAPTER 2: REGULATION OF THE LEGAL PROFESSION
Focuses on: (1) the character and fitness of admission to practice; (2) an examination of professional discipline; and
(3) remedies, sanctions and elements of malpractice.
PROBLEM 1: ADMISSION TO THE BAR
Rules 8.1: Bar Admission and Disciplinary Matters; 8.4: Misconduct
CHARACTER AND FITNESS FOR ADMISSION TO THE BAR
2. Every American jurisdiction requires that applicants for admission to the bar have the necessary
“character and fitness” to practice law. What is the point of the requirement?
a. To ensure the ability and disposition of the applicant to practice law competently and honestly
b. To shield clients from potential abuses (misrepresentation, misappropriation of funds, betrayal of
c. To safeguard the administration of justice from those who might subvert it through subordination of
perjury, misrepresentation, bribery, etc.
d. Bar’s own interest in maintaining a professional community and public image
3. Does Gerald Smith’s cheating in law school demonstrate that he lacks “good moral character”? yes
a. Yes, because all of these characteristics are relevant to the practice of law. Yes, because it shows a
pattern of dishonesty.
b. No, because of (a) the remoteness of the act and (b) we do not know the circumstances surrounding
being caught/the conviction. No, it wouldn’t matter if it was a felony because we still do not know
the surrounding circumstances, and the incident occurred during his adolescent years (remoteness).
c. No, it depends on whether it’s an isolated incident, but if it’s a continuous pattern, it may speak to
the lawyer’s fitness.
d. Yes, because her conduct was continuous and she probably knew she was violating the law but
carried out the conduct anyway. Argument for teacher her conduct doesn’t fall within the
definitions of “character and fitness” (dishonesty, fraud, deceit, or misrepresentation). Counterargument after her first conviction, she knew what she was doing was illegal, which reflect upon
her lack of truthfulness (dishonesty).
4. Should dishonesty in the handling of money defeat a person’s bar admission? depends on
the person’s intentions (knowingly), circumstances, and how far removed the situation
a. (c) Yes, b/c his intentions are not to pay the loans back… no showing of hardship or
effort to repay the loans… selfish, disregard for moral responsibilities, lack of
respect for (Mustafa & Taylor)
5. Should there be a statute of limitations on how long prior incidents can affect current bar
admission decisions? Yes
a. When you’re an adolescent, you are not conscious of your legal rights and/or
obligations… don’t think about being a lawyer, and what the repercussions of bad
conduct may result in bar admissions processes. Knowing Smith-Saville’s age
would make a difference b/c it would determine whether or not he can be deemed
6. Historically, the principal concern about the character and fitness requirement has been its
potential to deny bar admission based on political beliefs rather than character. In the
1950s, for example, it was the principal basis for denying members of the communist party
admission to the bar. Is there a risk of that misuse of the requirement today? Yes, based
on the incidents of 9/11… racial-profiling.
a. No, I disagree with the court b/c the student was exercising his First Amendment
right… and even though his behavior was an inappropriate opinion, it doesn’t
speak to his ability (or lack thereof) to practice the law.
b. No, because Hale’s beliefs would prohibit him from effectively practicing the law… it’s
prejudicial to the administration of justice (R. 8.4(d)). 1 7. 8. 9. 10. 11. 12. 13. 14. CANDOR IN THE BAR APPLICATION PROCESS
How candid must bar applicants like Smith/Saville and their supporters be in the application
process? Applicants must be extremely candid in the application process, because if the
panel discovers that you were lying, it’s grounds for denial of admission.
a. (b) Only if he knowingly lied about the traffic tickets
b. (e) No, b/c Taylor was never punished before (for stealing)… he didn’t show remorse
How much should a state supreme court be able to ask a candidate for bar admission about
his or her history of mental illness? only if it helps to answer a discrepancy or
inconsistency with the applicant’s character and ability to practice law
b. (c) Questions 25 & 26 are warranted; however, Question 27 doesn’t speak to a person’s
disability but goes to other personal (criminal) history
Would you favor a policy of fingerprinting all applicants for admission to the bar, a
procedure that might tend to expose people like Gerry Smith in this Problem who had tried to
change their identity? No it seems unnecessary, because even if someone changed their
name there’s still a way that the board could find out whether or not he/she’s been convicted of
a. (b) Because lawyers are serving people/society… ambassadors of justice.
If you are Smith’s lawyer (or just his friend who happens to be a lawyer), what are your own
obligations to the bar admission authorities in connection with Smith’s bar application? lawyer has an obligation to disclose under R.8.1 as long as it didn’t fall within the exception in
R.1.6 (client-attorney confidentiality).
a. Yes, the lawyer would have a duty to disclose Smith’s admission of guilt, his name
change, and past criminal record
b. Client-Attorney Confidentiality… trust, representing the client effectively, advising the
client from wrongful conduct
What should be the obligation of law schools and their deans in cooperating with
investigations conducted by bar admission officials? they should completely cooperate
with investigations since they also represent the administration of justice (and furtherance
thereof) by graduating law students… law school deans = lawyers
a. No, b/c if the board asks the school about Smith’s character/file, they’re required to
disclose EDUCATIONAL AND KNOWLEDGE STANDARDS FOR ADMISSION TO THE BAR
(4) The requirement of attending an ABA-accredited law school is particularly burdensome
on foreign lawyers seeking to practice in the U.S. How should states deal with
applications from lawyers trained outside the U.S.? foreign students should have to
meet certain prerequisites that establish/prove their proficiency in the American legal
system without having to endure 3 years of law school in an ABA-accredited institution in
(6) Of course, the principal requirement for successful admission to the bar in most states is
passage of a bar examination. Why should applicants be required to pass another
examination after they have already received a three-year legal education at an
accredited school? because there are state laws that aspiring attorneys need to be
proficient in to prove their ability to understand/apply the law and effectively represent
their clients… law school only provides conceptual legal knowledge
a. (c) based on the national average OTHER ATTEMPTS AT STATE AND FEDERAL LIMITS ON BAR ADMISSION
Should there be anything wrong with a state requiring bar applicants to be U.S. citizens and
state residents? Yes, b/c it’s unconstitutional (alienage; privileges & immunities) 2 PROBLEM 2: LAWYER DISCIPLINE AND THE DISABLED LAWYER Rules 1.1: Competence; 1.3: Diligence; 8.3: Reporting Professional Misconduct; 8.4: Misconduct; 8.5:
Disciplinary Authority; Choice of Law;
Code of Judicial Conduct, Canon 3(D)2—A Judge Shall Perform the Duties of Judicial Office Impartially
and Diligently—Disciplinary Responsibilities
A. CONDUCT THAT CAN SUBJECT A LAWYER TO PROFESSIONAL DISCIPLINE
1. Where does a lawyer look to see what can justify professional discipline? –ABA Model Rules of
(a) Professional discipline is imposed for violations of Rule 8.4, which is entitled “Misconduct.” Rule
8.4(a) incorporates by reference the other Model Rules.
(b) The remaining sections are the “catch all” provisions. Although, the term “appearance of impropriety”
as a grounds for discipline does not appear in the Model Rules, courts and commentators still use the phrase
in justifying imposing discipline.
2. What should be the purposes and functions of the lawyer discipline process? Should it be only to punish
dishonesty or other “serious” wrongdoing? Should the purposes of the process include responding to
what clients see to be problems with their lawyers even if the concerns seem minor to lawyers
(a) Discipline process has three functions:
1. cleansing function—to identify and remove from the profession all serious deviant members
2. deterrence function—to deter normative deviance and maximize compliance with norms among
3. public image function—to maintain a level of response to deviance sufficient to forestall public
dissatisfaction—Suggests the legal system is a self-regulating organization.
(b) Duties are concerned with lawyer functions in the course of representing a client and causing harm to
the client, to a legal institution, or to a third party. These duties extend further and include some lawyer acts
that, even if not directly involving the practice of law, call into question the ability or willingness of the
lawyer to abide by professional responsibilities.
(d) Public image would be improved because the public would be assured that lawyers are reprimanded for
their misconduct. This may help to restore the faith in the effectiveness of the legal system. Enhancing
lawyers’ public image seems to be an appropriate purpose, because society has developed a certain
contempt and disbelief of the effective of the legal system.
3. Applying these ideas to the facts of this Problem, does using the discipline process to pursue Andrews
and Black seem desirable--yes
(b) Rule 1.1 and 1.3—Andrews has violated Rule 1.3, because he is not acting with reasonable diligence
and promptness in representing his client. Comment 2 states “a lawyer’s work load must be controlled so
that each matter can be handled competently.” Andrews is not controlling his work load; instead he is
procrastinating, which may cause his client’s interest to be adversely affected by the passage of time or the
change of conditions. Andrews procrastination is likely to result in a violation of Rule 1.1 due to
incompetent representation. The facts state that Andrews is going to settle his minor cases so he can spend
more time on the rest. This suggests that Andrews is not going to thoroughly prepare to settle the minor
cases. If so, this would violate Rule 1.1.
(c) Yes, by failing to act with reasonable diligence and promptness, the lawyer “neglects” his clients.
Clients may care how many other cases a lawyer has neglected, because a consistent pattern of failure to
carry out obligations would suggest neglect. However, a single act, may suggest other circumstances such
as a medical emergency…or something. Andrews may argue that his actions were inadvertent or the result
of an error of judgment made in good faith. Model Rule 1.3 has not effectively overrule Informal Opinion
1273. The two seem to be consistent. See this note in the book.
(d) Disciplinary authorities have pursued incompetence, negligence and neglect as violations of both Rules
1.1 and 1.3. In re Wolfram—18-month suspension for lawyer whose acts of neglect constituted providng
inadequate assistance of counsel in a criminal case. 3 (e) Iowa Supreme Court Bd. of Professional Ethics & Conduct v. Hill—Court revoked the license of a
lawyer who tried to handle an interstate adoption when he knew or should have know he was incompetent
to do so.
4. Under Model Rule 8.4(b), what criminal acts should be held to “reflect adversely on the lawyer’s
honesty, trustworthiness or fitness as a lawyer in other respects.”—perjury, murder, robbery,
(a) Attorney Grievance Comm’n v. Protokowicz—Attorney suspended for not less than a year for breaking
and entering and cooking the home owner’s cat (placed cat in microwave)
(c) People v. Musick—1 year suspension for three incidents of physical assault (woman with whom living)
(d) Florida Bar v. Brown—90 day suspension for assisting a corporate cline to make illegal political
contributions by soliciting $500 contributions from law firm employees that were to be reimbursed through
billing inflated hours in legal matters.
5. Should an attorney be subject to professional discipline for behavior not in his or her capacity as an
attorney? What might lead state supreme courts to sanction lawyer misconduct even when the lawyer
was not acting as a lawyer at the time? –Yes, because attorneys are public figures and should be held to
(a) In re Boudreau—Disbarment of lawyer involved in the importation of sexually-explicit child
pornography from Europe. Sexual exploitation of children is a crime. Attorney should be aware that this is
a crime; if not, this affects his fitness as lawyer, because he obviously does not know the law.
(b) In re Fornari—1 year suspension for filing fraudulent documents in making a claim with homeowner’s
(c) In re Scruggs—lawyer suspend for resume fraud. Misrepresentation should cost a lawyer his/her
license because shows propensity to be dishonest. Dishonesty may affect representation of clients, may
result in lawyer committing perjury, and other offenses.
(d) Matter of Diggs—90 suspension for lying about attending a CLE program. This case represents the
importance of attending CLE programs and the Bar tolerance for lying (this lie may seem trivial; however,
it is still a lie).
6. What conduct should be sufficient to violate the Model Rule 8.4(d) prohibition of “conduct that is
prejudicial to the administration of justice?”
(c) Attorney Grievance Comm’n of MD v. Sheinbein—Lawyer disbarred for assisting the flight of his son
to Israel after son committed murder. It was unethical for the lawyer to obstruct a criminal investigation by
sending son to Israel although no criminal charges had been filed.
(d) No, because privilege against self-incrimination is a Constitutional right. Spevack v. Klein—State may
not disbar an attorney for taking the 5th Amendment.
AGGRAVATING AND MITIGATING FACTORS IN DISCIPLINE CASES; THE PROBLEM OF ALCOHOL
AND DRUG ABUSE
1. Think about yourself and your law school colleagues. Are alcoholism and drug abuse serious problems
among lawyers?—YES, YES
(a) State of Washington study reports that 18% of all lawyers and 25% of those in practice over 20 years
have a problem with drugs or alcohol. Study by the Ass. of American Law Schools found that nearly twothirds of law students admitted using at least one illegal drug during their lifetime. Over 20% had used
marijuana, and nearly 5% had used cocaine during the previous year.
2. Should Black’s alcoholism be a factor that affects the nature of his discipline? yes
(a) In re Kelley—lawyer disciplined after second conviction for drunken driving. The sanctions which are
imposed should be coupled with methods to assist the attorney in finding help.
(b) Courts have sometimes cited alcoholism as mitigation of the sanction for lawyer misconduct. Matter of
Walker—Lawyer allowed to keep his license once it was proved that the lawyers was now a recovering
3. Should other kinds of mental disease affect a lawyer’s level of discipline?
(a) Conduct of Loew—Lawyer suspended for 30 days after psychiatrist testified that lawyer was a victim of
“burn-out syndrome.” This is not a good defense, because lawyers are aware of the demands of the legal
profession. Therefore, they should manage their time adequately. Recognition of this defense would not
give adequate protection to clients. 4 2.
3. 4. 5. 6. (c) Florida Bar v. Clement—Issue was whether the ADA protects a lawyer with bi-polar disorder. Court
held, that even if the disorder prevents the lawyer from knowing right from wrong, the ADA did not void
the requirement that an impaired individual must be “qualified” to practice his profession.
INTERSTATE DISCIPLINE JURISDICTIONS THAT MAY SANCTION AND THE LAW THEY APPLY
What jurisdictions may impose professional discipline on a lawyer?—The jurisdiction in which the lawyer
is licensed to practice
(a) Any state in which a lawyer is licensed may discipline a lawyer for misconduct wherever it occurs, and
even a state to which the lawyer travels for temporary practice may try the lawyer for conduct occurring
(b) In the Matter of Spraker—(example of how Rule 8.5 may work). Discipline was imposed on an
Indiana lawyer for conduct that occurred in Illinois but was illegal in both states.
Does each jurisdiction simply apply its own standards to evaluate the conduct? If a lawyer is licensed in
one state and negotiates a contract in another, which state’s rules should govern her professional
conduct?---yes; Both states should govern the lawyer’s conduct.
(a) The lawyer should disclose the facts, according to New Jersey ethics rules, because the conduct—
negotiation of the commercial transactions—occurred in New Jersey.
(b) A lawyer may not assume the risk because there is a safe harbor provision. As a safeguard, the lawyer
can comply with the rules of the jurisdiction in which his conduct occurred. The comments provide help by
establishing the fact that there may often be questions as to where the predominant effect of the conduct
may occur. Therefore, it is reasonably safe for an attorney to rely upon the rules of the jurisdiction in which
the conduct occurred.
What is the effect of lawyer discipline in one state on a lawyer’s status in other states where the lawyer is
admitted to practice law?
(a) Yes, According to the comment, reciprocal enforcement of a jurisdiction’s disciplinary findings and
sanctions will further the purposes of the rules.
(b) In Matter of Iulo—Pennsylvania admitted a lawyer disbarred by New Jersey for misapplying client
funds. Three years later, the Disciplinary Counsel sought to have the lawyer subjected to reciprocal
disbarment based on the New Jersey action. The PA SC said no. Principles of reciprocal discipline may
require honoring factual findings made elsewhere but they do not require identical sanctions.
(c) In re Reciprocal Discipline of Rokahr, SD and Nebraska initiated disciplinary proceedings against
attorney for misconduct involving trust documents that concerned land in both states. Nebraska suspended;
SD imposed admonishment as the appropriate sanction. Complainant asserted that SD was obligated to
impose reciprocal discipline. SD SC held: reciprocal discipline is not required where two states conduct
“separate and distinct investigations” and come to different conclusion regarding the alleged misconduct.
Also found that the full faith and credit clause does not require SD to impose reciprocal discipline or an
identical sanction where the incident involved some SD conduct, as opposed to being based solely on a
Nebraska hearing about exclusively Nebraska act.
Worthy says, there is more cooperation among the jurisdictions as it relates to reciprocal enforcement.
Should the federal courts create their own disciplinary standards or apply the state disciplinary
standards of the state in which they are sitting?
(a) In practice, many federal courts adopt, as a matter of “dynamic conformity,” the ethics rules of the states
in which they sit; a few courts adopt their own ethics rules. United States v. Walsh—Court held that the
Model Rules as adopted by the ABA, were controlling in that federal court, not the Rules as adopted by
New Jersey, the state in which the court is located.
(b) In re Hoare—dealt with reciprocal discipline in a federal court based on state discipline. The federal
court required that a lawyer disciplined in state curt show by clear and convincing evidence that identical
discipline should not be imposed by the federal system.
(c) Surrick v. Killion—Attorney was suspended by PA for 5 years, but federal district imposed a shorter
punishment. Court add...
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