if someone is disbarred, their name needs to come off the letterhead
readmission
can seek readmission
Who regulates of legal profession
Courts regulate legal profession
Regulations must be rational to accomplish the purpose that they are seeking to accomplish
Can make you graduate from a accredited law school
Qualifications
Don't need to be US citizen
Don't need to be a Resident in the particular state
Character and fitness
Can't deny based on membership in communist part
Jurisdictional boundaries
Being admitted in one state doesn't give one the ability to practice in another
In the federal court (SDNY) – must be separately admitted to practice in the federal court
Must make a motion before a federal court judge
Unauthorized practice of law
Tasks that are proper for a clerk to perform
Interview witnesses
Fill in blank forms
Form real estate contracts
Write memos of law
Clerk must be properly supervised
If the lawyer doesn't supervise the clerk, the lawyer is subject to disciplined
Lawyers are responsible for clerks mistakes
Young associates must be properly supervised by senior lawyers
Drafting forms (so long as there is supervision)
Interviews, and sign a written version of the interviews
Tasks that require a license
Appearances on behalf of a client
Taking depositions
Negotiating settlements
Attorney is subject to discipline for delegating something to a non-lawyer
There are exceptions for the student practice orders
Bar admission and disciplinary matters
Filling out the application for admission
There is a duty to alert the bar to fit and unfit candidates
Failed to respond to a lawful demand for information
There is a duty in that situation to respond
There is a duty to supplement
Lawyers need to recommend people who they do know
Lawyers have a duty to report people that they do know
Duty to report extends over state lines
Can't report someone anonymously
If someone rehabilitates himself the lawyer has a duty to report the rehabilitation
Duty to report
There is now an obligation to tell on each other
Young lawyers have a duty to report
Himmel: Lawyer didn't report the violation of another attorney, the one who knew about it and didn't make the report
Duty to report judges for code of judicial conduct
Duty of confidentiality will override duty to report
Professional responsibility lawyers are bound by confidentiality
Duty of confidentiality does not extend to not recommending someone
E. g. someone who knows someone is unfit (but in a confidential way) one can't go out and affirmatively lie
There is no statute limitations of misconduct
Attorneys can verify misconduct
Jurisdiction to discipline a lawyer
New York can Discipline for Conduct that is required
State in which the lawyer's misconduct occurs
Can't take away the license to practice, but the jurisdictions talk to each other
Misconduct
Violation or attempts to violate a model rule
Assisting or inducing another lawyer to violate a model rule
Using the acts of another person to violate a model rule
Using an agent to violate a model rule
Engaging in conduct that shows dishonesty fraud, or misrepresentation
If the lawyer wasn't found guilty of conduct, it can still be misconduct
If the dishonesty or fraud occurs outside the practice, they can still be disciplined
Committing a crime that shows dishonest, untrustworthiness
Engaging in conduct that is prejudicial to the practice of justice
Stating an ability to influence a government official or agency
Knowingly assisting a judge in conduct that is in violation of the code of judicial conduct
Still can be subject to discipline if not practicing law
Doesn't matter if not convicted of a crime
Differences in proof that matter
Formation of the lawyer-client relationship
Consensual
Not permissible to turn away all cases
Sometimes a lawyer is appointed to represent a party
Should take a case, unless there is good cause
E. g. conflict
Result in unreasonable fiinancial burden
Personal feeling so strong that you can't represent the person
Things that you must reject
If you are physically disabled
(e. g. deaf)
conflicts
even if one has nothing to do with the other
can't sue or represent a party representing the current client unless there is informed cosnent
if the claims are frivolous or harassment
in civil matter: if there is nothing to inflate about, and there is nothing to fight about the lawyer can't take the case, then any defense is frivolous
21 day rule: if someone interposes a defense that is frivolous, after notifation that the claim is frivilous, if you do it with in 21 days one is not subject to sanctions
criminal
can take the case no matter what the truth of the matter
defendant has a right to make the people prove every element of the crime
personal feelings
incompetence (e. g. no experience)
exceptions to incompetence
associates themselves with another lawyer and the client consents
lawyer becomes competent in this subject matter
emergency cases (exception applies only in period of the emergency)
must reject if it involves someone in criminal conduct
duty of confidentiality: a lawyer must not reveal any information relating to the representation of the client
things that are said without the expectation of confidentiality are not protected – but if it is something that relates to – duty of confidentiality is broader than the attorney-client privildge
exceptions
consent
full disclosure
may use confidences to the extent necessary to defend themselves to civil, criminal, or dislinary complaints
defenses to malpractice charges
can't threaten to reveal
threat of a lawsuit is enough to reveal confidential information
can still reveal confidentiality to protect against a claim even if the claimant isn't a person
court orders
intends to commit a crime that will likely result in iminant death
may reveal confidential information to stop that
must be a crime in the future and a crime that will result in substantial bodily harm
suicide is a crime, but the lawyer MAY reveal
use of confidential information
cannot use client's confidential information to the disadvantage of a client unless there is consent
prospective clients: even if turning away prospective cleints
information about legal services
attornies have first amendment right to advertise (but is commercial speach)
yellow page ads
office signs
business cards
can't be misleading
statements that contain unreasonable expections
(e. g. can't have a reocrd)
can't say that they never lost a jury trial
announcements are a form of advertising
letthead
brochures
recorded messages on phone are ok
and solicitation impermissable
every ad has to include one lawyer responsible
must keep a record
okay to include
fields of practice (if limtied to)
can't say that people specialize
languages spoken are okay to include
educational background
lawyer excepts credit cards (e. g. bankrupcy)
certification by certain recognized groups
has to be a legitimate group
need to name the organization
has to say what the status of the organization is with the state or that the state has no progrm for approvating certifying organization
can say memberships in bar assoications
regular clients with they have their consent
firm names
partners
permissible to list the name of a current partner, or a retried partner, or a dead partner
they have to have practiced at the firm when they were alive
if they go into government work, their name has to come off the letterhead
multi-state firms
must list the jurisdictional limits of the letterhead
trade names
permissable
so long as it doesn't connote a relationship with government
radio and TV announcements
must keep copy for two years
must keep a record where the advertisement was broadcast
direct mail
permissable
have to print on the envelope that it is attorney advertising material
in Florida one has to wait 30 days before direct mail
can direct at rich people
lawyer must adhere to a request to cease and decist
people are bothered by attorney's conduct
"specializing in"
jurisdiction recognizes bankrupcy as a specialty
prctice is limited to
other exceptions
admiralty
patents
solicitation (direct, fact to face)
prohibited
can't solicit for self or partner
can't enter into agreement with non-lawyer for referrals
permissable
group and pre-paid legal service
get a certain amount of free legal work per year
pre-paid legal service groups can solicity
pre-paid legal service groups can't target people who are in need of current legal services
education
can give seminar to lay people on writing a will
can't give specific legal advice to people at the seminar
exceptions
"no fee" solicityation for political groups (e. g. finding a clients with a test case)
close friends or relative
present clients
former clients
retainer agreements okay
billboards, signs are okay
fees
fee agreement should be in writing
circumstances where it must
lawyers can except property in exchange for legal services
can except payment by credit card
should be reached as early as possible
bar can't set minimum fees (Goldfarb v. VA)
reasonableness
time and labor required
can't double bill clients (e. g. can't bill everyone for the time that they were there)
have to break down the time
novelty and difficulty of the questions involved
whether the lawyer must turn away other cases
what other attornies in community charge for similar work
amount at stake and the results obtained for the client
time limitations imposed by the client
nature and length of the relationship
longer the relationship
experience of the lawyer and reputation
whether fee is fixed or contingent
contingent fee can be higher
contigent fee
usually a percentage
1/3 is reasonable
prohibited contingency fees
criminal cases
incentives are impermissable
domestic relations cases are imperssable
e. g. amount of alimony and support
dont' want to put a premium on tearing marriage apart
explain alternatives
have to explian that they are going elsewhere and going on an hourly
termination and terminationo
client can fire the lawyer for any reason
lawyer will get quantum meruit
lawyer will get a reasonable hourly rate for the time put in on the file
lawyer will onyl get thee reasonable hourly rate -- only if the cases is a winner
termination for cause
not entitled to any payment
contingency fees must be in writing and must state
how the fee is to be calculated
what expenses are to be deducted from the recovery
whether deductions for expenses will be deducted before or after
if you don't include, you are stuck with a lower amount
at the end of a represenation, you have to send to the client a written statement showing how you calculated the fee
fee splitting with other attornies
can split with lawyers in firm
can split fees with other lawyers outside firm
obtain client's consent to associate self with other lawyer
fees are divided in proportion to the work performed
can't get more than percent of work perfirmed
or
each lawyer assumes joint responsibility for represneartion of client in a written agreement
including responsibility if the other lawyer commits malpractice
total fees are reasonable (e. g. has to be cappedat 1/3)
lawyers can get money as part of a sperartaion or retirement agreement
fee-splitting with lay people
my neighbor was involved in an accident
death benefits
payment for work done before death
e. g. groups of people who wind up cases
compensation or retirement a plans for adminstrators of firms
permissable if part of compensation or retirment plan for non-lawyer employees
secretaries and messengers can participate in retirment plan
can still be on hourly that is paid later
lawyers may advance filing fees and court costs
can have a contingency fee in a collection (even if ther underlying is a domestic relations question)
law firms and assoications
Please visit
patnership
lawyers can get together in a partnership and practice law
if one aspect of the parternship activity includes the practice of law, every partner must be a lawyer
patner is responsible for conduct of lawyers that partner supervises
all officers, directors, and shareholders must be lawyers
legal PC, one dies, and the lawyer's spouce must
multi-discilinary partice relationship of lawyers with non-lawyer
check this
can list additional qualifications (e. g. CPA)
if you are only reprenting osmeone in capacity as CPA, than one can't solicit one's other preofession as the other
attorney-client privildge only pretains to one's legal practice
e. g. can't assert to accounting privildges
ancilliary businesses
lawfirms can provdie planning, lobbying, accounting advice
if one is doing this, than the lawfirm is bound by the rules of professional conduct
restrictions on the right to practice
imperssiable to sign a right to practice
both parties to a non-compete can be disciplined
exception: if restriction is based sonly on receiving retirement benefits
lawyer-client relationship
liability for legal malpractice (different than professional misconduct)
doesn't need to cary malpractice insurance
attorneys are liable for the negligence of people who are being supervised
malpractice
theories
intentional tort
breach of a fiduciary duty
breach of contract (retainer agreement)
negligence (most often on MPRE)
client
potential client
liability third parties who are intended to benefit
e. g. lawyer who represented a client, and failed to properly draft a summary (e. g. something given in reliance)
e. g. there is a duty owed to a third party
proximate cause
this is an element of a legal malpractice case
e. g. if the negligence didn't result in any damage it doesn't matter – if there underlying case had no merit, one needs to cause proximate cause
standard of care
orginary lawyer
specialists are held to the higher standard of case
limitation of liability
can't limit liability
settlement of malpractice
of someone is going to settle a malpractice has to tell someone to review with another lawyer
dilligence and communication
must keep client reasonable informed of developments in the lawsuit
respond to requests for information
furnish client with sufficient information to make a decision
settlement offers
even low ones
duty to avoid conflicts
can't buy property of client at a legal sale
business transactions with a client
presumption of undue influence
can't take stock
exceptions: you don't need to satisfy requiremetns if it is a standard non-legal advice transaction
reasonable and fair
full disclores (that cleint can understand)
cleint has given a chance to seek outside counsel
client must consent in writing
can't obtain an interest adverse to a cleint
if you represented a client, you could take goods in kind
can't take a mortgage from a client because it takes an interest adverse to a client
lawyer can't acquire an interest in the subejct matter, except for contingent fees
contingency fees are still okay (so long as it is not regardless of what happens in the lawsuit)
lawyer must not be a witness in a case where the lawyer is also trial counsel
exceptiosn
uncontested matter
testimony about legal fees
(e. g. if attorney's fees are part of the recovery)
substantial hardship (e. g. long term) – doesn't have to withdraw if would result in substantial hardship to the client
imputed disqualification
rule: if one lawyer in a firm is disqualified, the disqualificaton is imputed to every lawyer in the firm
exceptions: former government employee
former governmental employee may not represent a party on a matter that she worked on personally and substantially while with the government
if the employee worked on it while with the government, then you can't represent a private party in that matter
there is no way to consent to it (e. g. the governent can't given consent to waive the conflict)
need to make
full disclosure to state in writing – need to tell government that you are at the lawfirm
no fee to former government lawyer
no disclosure of confidential information
legislation is not a matter (matters involve private parties) so lawyers who work n legislation are not subject to conflicts
family disqualification
lawyer can't represent a client who is suing a party represented by a spouce, parent, child, or sibling unless client consents
this conflict is not imputed to other members of firm
gifts and favors from a client
a lawyer may accept a gift from a client if it meets general standards of fairness, if it mees general standards of fairness
lawyer may not draft an instrument (e. g. a will) that gives the lawyer, or a relative a gift or a bequest unless the lawyer is related to the donor
this rule is imputed to other lawyers in the firm
literary or media rights
may not acquire literary or media rights to a client's story until after the matter is entirely concluded
can't negotiate media rights in the middle of represenation with the client
client can't consent to waive this rule
if we are going to right a book about a Clien'ts story
interests of other clients
conflicts among current clients
can't represent two clients on different sides of the case
same side of the v (can't represent if there is a potential cross claim)
can't sue a current client on an unrelated matter (unless there is consent after disclosre)
multiple clients
can represent multiple clients if their interests are not adverse
if one finds out later that the interests are somewhat different, and the multiple clients have conflcit interst the lawyer has to withdraw from representing all of the clients
confidential information
can't use the confidences of one client to assist a person in represening another
former client conflict rule
a lawyer may not oppose a former client in a matter that is substantially related to the prior representation
can't use confidences you learned when you represented the client in the past – this rule is impued
third party interests (where a third party pays the legal fees) (e. g. insurance comapny paying for defense)
client is the client, even though the insurance company is paying the freight
the lawyer can't follow the direction of the third-party payor
confidentiality is followed (e. g. lawyer can't reveal confidential information to the third party payor)
client has to consent to this (this is in insurnace contracts)
disability of client
organization as client
corporation is the client (not the directors or the shareholders)
might be adverse to the interests of the director
safeguarding client's money and property
retainers and monye
duty not to co-mingle money or property – goes into trust account
could be a $5k retainer
trust account has to be in state where the lawyer practices
can use one account, provided that there is accounting
large sums have to go in interest bearing accounts
make sure that one withdraws money each month – if you don't you are comingling
property
can't be in desk -- has to be in safe deposit box
has to promptly notify
prompt turnover when it is due to the client
unless there is an acutal lien or an established legal right to the money
disputed claim with client
amounts that arn't in dispute has to be turned over
the disputed amount stayes in escrow until dispute is resolved
decision making in the lawyer-client relationship – what the client must call
client has final call
whether to commence a suit
what defenses to interpose
whether to settle a suit – then the client makes the call
if the client doesn't want it, then the lawyer should abide
conducting deposition (type of discovery)
venue – this is the lawyer's call
client under disability (e. g. youth)
have to have a guardian appointed
guardian makes the decisions that the client would normally make
terminating the lawyer-client relationship
client fires lawyer
client has power to terminate for any reason at all
still entitled to get paid
if terminated for cause not entitled to payment
need court's permission if matter is in litigation
have to obey court's conduct
must return client's property promptly if matter is in litigation
file itself
exception: lawyer has a lien on the file
drafts and final product are both included
unsed portion of the retainer
lawyer withdraws (not fire)
withdrawal (permissive)
any good reason where there is no matieral harm
if the client consents
where one of these conditions are met
client persists in criminal or fraudulent activity
reasonable belief is enough
where the lawyer has to engage in illegal conduct than MUST withdrawl
client has used attorney's services to commit past crime or fraud
client's objective is repugnant or improvement
client breaks promice to lawyer (e. g. getting paid, but this alone isn't enough)
unreasonable financial hardship
client won't cooperate with represenation
can't negotiate around these rules
reasonable notice
mandatory withdraw – or make a motion
disability of lawyer
if contiuing with the representation will require the lawyer to violate the law or a disciplinary rule
discharge before or after litigation
roles of the lawyer
lawyer as advocate – facts have occurred
duty is to put the facts in the most postive light possible for the client
lawyer has to know that a story is untrue
lawyer as advisor
lawyer as intermediary
can assist parties incoming to a settlement agreement
can review this proposed settlement with one's own lawyer
intermediary can't represent either party in subsequent litigation
lawyer as evaluator
when the lawyer acts in this capacity the lawyer must be truthful
lawyer as prosector
a prosecutor must reveal evidence to the defendant that tends to negate the guilt of the defendant, even without a request
lawyer as negotiator
rule generally is that the lawyer must be truthful
estimates of price or value
can exagerate the price or value of that car
what your client will accept in settlement (can play poker)
duty of candor
must disclose caselaw to the court if two things are present
caselaw is in the controlling jurisdiction
caselaw is directly opposed to our case (don't have to explain it)
no duty to disclose facts that are adverse to position
(might be exceptions)
must reveal the identity of client (unless confential) –
if client's identity would be confidential if that would link them to a crime
if appearing before a legislative committee
false statement of fact
lawyer cannot knowingly make a false statement of fact (material fact) (if he finds out later he is not knowling subject to it)
witnesses
no contingent fees to an expert witnesses
no incentives to experts
adversaries witnesses
can speak with an advisarites's witnesses (directy)
can't speak to the represented opposing party directly
can speak to B's witnesses directly
jurors
lawyer who is connected with the case (before and during the trial) can't speak with juror about any issue (even weather)
any lawyer can't speak with a juror about the case
after the trial of the case, one can speak with the juror provided no harassment
during litigation
lawyer cannot refer to a matter that is irrelevant to the case
lawyer isn't permitted to give personal opinion
lawyer can say that the evidence indicates
can't speak about the legal matter to people – (e. g. direct commnuication with adverse party)
corporations: the advisary must obtain corporate counsel's permission
person whose conduct can be imputed to the corporation
if you are going to speak to one's bother, one needs permission to do this
lawyer may not advise or cause a person to flee the jurisdiction if the purpose is to make the person unavailable as a witness
duty to be cuteous to advisory
by calling somen names
fairness to non-clients
repsects for third persons
can't use legal means to embarrass third persons
can't serve burdensome discovery demands on third persons
can't obtain evidence though a violation of a third party's rights
pro-se advisaries: can speak with unrepresented parties, provided that you don't give them legal advise
can tell them to get counsel
lawyer's duties as a citizen
can contribute to or work for a judge's campaign (have to give it to committee, not judge directly)
gifts to the judge are permissable, but it has to be the ordinary social gift
supporting law improvement
e. g. a law reform group
lawyer can still work with the law reform group
public service
a lawyer should participate in bar activities
lawyer should do some pro-bono work
Judicial ethics: ABA code of judicial conducts
Others covered
Judge
Magistrate
Referee
Two types of rules
Mandatory
Hortatory (should)
Obligations
Conduct
Independence and integrity
Including in the personal life
Gifts
Books are ok
Social gifts
Honoria for public speaking
Judge can't accept a discount that isn't available to the general public
Judge must report anything they receive above $150 dollars
Judge must follow the law, even if it differs from personal opinions
Activities outside judicial office
Judge cannot use non-public information that they gain while on the bench in outside activities for private gain
(e. g. speculating on bonds)
can't use official stationary
can't get something from a bank that isn't available from everyone else in the sate
Financial and business dealings
Judge can't engage in business transactions with lawyers who regularly before him
Litigation responsibilities
Competance': must keep informed of current developments in law
Promptness
Decorum
Has the obligation to keep decorum – can't delegate to a lawyer in that fassion
Ex-parte communication
Generally imperssible
Cannot speak with the judge about the case in the absence of the advisary
Judge shoudn't permit this kind of communication
Exceptions
Expressly authorized by law
E. g. TRO
Mediation or settlement
Emergencies: permissable under emergency exception
disqualification
Whenever a judge's impartiailty might be questioned: judge must disqualify herself if there is a reasonable ground to belive that the judge has personal knowledge of the facts
Judge has a personal bias against either the party or the party's lawyer
Prior involvement
Party to it
Lawyer to it
If one of the partner's did – can't here case
Former partner or close relative
Judge shall disqualify herself if a former partner of the judge of a close relative of the judge if a party, an attorney or a witness
Close relative is defined as (anyone closer than a cousin) – including spouses
Economic interest
Judge must disqualify himself if as an individual or a fiduciary has an economic interests or something that could be effected
1 share is more than deminium
ownership interest in a mutual fund is one step removed
if it is held by the spose, parent, child, etc. Resides in household
remittal of disqualification is a waiver of disqualifiction
administration
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disinterested experts
rule is that a judge can consult with disinterested experts
judge can call a bankrupcy issue
rules
report must be proved to all parties
all parites must be given an opportunity to comment
judges can't investigate independantly
judge can be a memeber of a law-related organization
can be a member of legal aid provided that she is not deciding how cases are prosecuted
organization cannot appear before her regularly in court
money -- judges can't raise money for the charity, etc.
Exception: judges can ask other judges on the court for money or for a charitable purpose
Can help organize fund-raising activities
Fiduciary activies of judges
Generally judges can't serve as fiduciaries
Judge may serve as a fiduciary for a member of the jduge's family
Judge shouldn't become involed in things that would come before them
Judge shoudln't become involve in advisarila proceding that would come before them
Restrictions on financial dealings will also apply to a judge in their financial capacity
Judges have to disqualify themselves from a case where a fiduciary interest has an interest
Reporting misconduct
Judges have similar knoweldge to report misconduct – must report
Information of a violation – she should report
Judge shoudln't testify unless subpoened -- judge must discourage being subpoened
Non-profit organization
Can be an officer, director, etc. For a non-profit religious, etc.
Can't be a member of a public educational instituion – except for a board member of a public law school
Can be a board member of a private law school
Judge can't be an officer in a business
Judge can be an officer in a closely held family business – provided that the judge doesn't regularly appear before judge in court
Teaching is permissable
References are okay
Membership in an organization
If the org discriminates on the basis of race, sex, natioanl orgin, the jduge can't be a member
Exception: If the group discriminates on these grounds, but the goals are to advance the cultrual, or religious values, the judge can be a member
Judge can be a member of an organization that discriminates on the basis of age or sexual organizatinprovded that it isn't prohibted in that jurisdiction
Practice of law
Judge can't practice law
Can represent self pro se
Can give free legal advice to family members
Judges in politics
Rule: judge must stay out of politics
Running for office
Public speaking permissable
Can't commit on certain issues
Soliciting votes: judge can go out an solicit votes directly
Can't solicity votes for others
Can do it, but not personally – can organize a fundraising committee
time limt where it is permissable: one year prior to election and 90 days after
time starts from initial (primary) election)
judge can't be a speaker or a guest of honor at a fundraiser
conflict of interest
former judge may not represent a private client in a matter that she adjudicated while on the bench
