PR Outline.doc - CHAPTER 2 REGULATION OF THE LEGAL PROFESSION Focuses on(1 the character and fitness of admission to practice(2 an examination of

PR Outline.doc - CHAPTER 2 REGULATION OF THE LEGAL...

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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 A. 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 confidences) 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 occurred. 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 an “adult.” 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 a. Yes 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 illegal/unethical conduct. 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 the U.S. (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 Professional Conduct (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 themselves? (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 attorneys 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, embezzlement, etc. (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 high standards. (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 insurance. (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. 1. 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 alcoholic. 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 there. (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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