My general approach to material Introduction to sources of law of lawyering

1. My general approach to material • Introduction to sources of law of lawyering • Not just disciplinary law • Admission to bar • General standard for professional discipline • Including means by which non-disciplinary law is incorporated • Problems related to multiple jurisdictions • Unauthorized practice of law • Disciplinary jurisdiction • Choice of law

2. Sources of law of lawyering

3. Disciplinary law • Source: usually state supreme court • Governs activities in and beyond practicing before court • E.g. Virginia Rules of Professional Conduct

4. Procedural law • Source: courts or legislature • Governs activities before court • E.g. Rule 11, disqualification

5. Mixed case: Federal court regulation of those practicing before federal bar • Governs activities in and beyond practicing before federal court • BUT sanction is usually only dismissal from federal bar

6. Law having source in state police power • Source: state legislature or state courts • Governs activities in and beyond practicing before state court • Includes both civil and criminal law • E.g. malpractice

7. Federal law having source in commerce clause • E.g. mail fraud, RICO, Sarbanes-Oxley

8. Means by which sanctions occur

9. State Disciplinary Law • Complaint by client or other lawyer to disciplinary authorities (usually state bar) • Screened for merit • Hearing before grievance committee • Makes recommendation • Review by reviewing authority in state bar • Review by highest court of appeals in state • Sanctions • Disbarment • suspension from practice • Censure • usually not fines (although can forfeit fee)

10. Exception: rules for conflict of interest • usually disqualification motions in litigation • BUT violation of conflict of interest rules can result in professional discipline

11. State/Federal Criminal law • criminal trial and penalties • NOTE: some crimes are grounds for disciplinary proceedings • even if unrelated to activity of practicing law • eg perjury

12. State/Federal Civil Law • civil trial and damages • NOTE: some torts (involving fraud or dishonesty) can result in professional discipline

13. State/Federal Procedural Law • contempt sanctions or other forms of discipline in the context of litigation • Penalties: • Disqualification • Rule 11 sanctions • Lose of case • NOTE: some violations of procedural law can result in professional discipline

14. Model Rules, Preamble [20] • Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. In addition, violation of a Rule does not necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer in pending litigation. … Nevertheless, since the Rules do establish standards of conduct by lawyers, a lawyer's violation of a Rule may be evidence of breach of the applicable standard of conduct.

15. Admission to Bar • Law school (usually) • Pass bar exam (usually) • Character and fitness requirements • Model Rules do not give standards

16. Character and Fitness • General test: predict future violations of discipinary rules

17. pattern of violation of laws • Frasher v. Bd of Law Examiners (W. Va 1991) • 3 duis and 24 speeding tickets

18. single infraction revealing dishonesty or abuse of position of trust • mishandling moot court funds • In re Mustafa (D.C. App. 1993). • need not be criminal or even illegal • plagiarism • honor code violations

19. Neglect of financial responsibilities • E.g. defaulting on student loans

20. Failure to disclose requested information in application!

21. Now you are a lawyer… • Standards for Professional Discipline

22. MR 8.4: It is professional misconduct for a lawyer to: • violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another

23. 8.4 (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects • Does not say conviction • Does not say in the practice of law • Look to standards for character and fitness • Pattern, dishonesty, abuse of position of trust, neglect of financial responsibility

24. 8.4(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation • Need not be illegal • Need not be in practice of law

25. 8.4(d) engage in conduct that is prejudicial to the administration of justice • Need not be illegal • Look to standards for admission to bar • Example Florida Bar v Collee (Fla. 1988) • you find out from a client that a plaintiff in another case had used fraud to win an undeserved verdict of $1m. You offer to sell in information to the losing defendant for $200K.

26. 8.4(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.

27. Multistate Practice

28. Unauthorized practice of law • Even if admitted in one state, practicing in another state may submit one to discipline • Does not include representing self • Does include representation of others outside of litigation • Eg transactional work or providing advice

29. Litigation • Admission pro haec vice • Outside litigation • What is practicing law? • Application of legal principles and judgment with regard to the circumstances or objectives of a person that requires the knowledge and skill of a person trained in the law (ABA)

30. Rule 5.5 Unauthorized Practice Of Law; Multijurisdictional Practice Of Law • A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so • Not what outsiders can to in state but what your lawyers can do in other states • Realy a choice-of-law provision

31. (b) A lawyer who is not admitted to practice in this jurisdiction shall not: (1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or (2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.

32. 5.5(c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that: • are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter • Expensive • In state counsel must actively participate

33. 5.5(c)(2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized • Pro haec vice • Or reasonably expect it • Includes depositions etc. in state other than where litigation takes place

34. 5.5(c)(3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission • What does “arise out of” or “reasonably related to” mean? • Example of arbitration in state while representing client from other state where lawyer licensed to practice • Not enough that client approached you in state where you are licensed to practice • Would not have saved Birbrower

35. 5.5(c)(4) are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice. - Similar problem about arise out of is reasonably related to

36. In-house 5.5(d) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that: (1) are provided to the lawyer’s employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission; or (2) are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction.

37. Disciplinary Jurisdiction • A lawyer violates a client confidence in Mass • he is admitted in state Mass and Va • can only state Mass discipline, or both Mass and Va?

38. 8.5(a) • A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer's conduct occurs.

39. Assume a lawyer not admitted in Va violates a confidence in Va. • Can Va’s bar discipline him?

40. 8.5(a) con’t A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction.

41. Choice of Law • Let’s say that DC rules require one not to violate client confidences concerning fraud upon the court, MD law says that you must violate confidences • you are a lawyer admitted in MD bringing a case before a DC court (allowed to appear pro haec vice) • Which law applies?

42. 8.5(b)(1)- for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise;

43. admitted in MD, not DC • DC has rule that no violation of client confidences concerning ongoing fraud is permissible • MD says must violate client confidences • in DC and DC client tells you of his fraud occurring in DC • You say nothing • Disciplinary proceedings in MD • What law should it use?

44. 8.5(b)(2) • jurisdiction in which the lawyer’s conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. • A lawyer shall not be subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur.