CH. 2: LEGAL PROFESSION AND THE PRACTICE OF LAW

1. SUCCESSION OF WALLACE, p. 42 • what is the issue, and how did it arise? • when a will names an executor and also designates an attorney for the estate, are the executor and the beneficiaries stuck with her? • La S Ct in 1929 said yes • Court overruled that decision in 1986 and said no • both decisions were based entirely on interpretation of the civil code, with no mention of court rules governing lawyers • Legislature sought to overturn the latter decision by statute, requiring “just cause” for the removal of a lawyer so designated • in this case, an executor challenged the statute as inconsistent with a court-adopted rule governing lawyers generally • how does the court resolve the issue? • now, a conflict is found between the statute and the court rule (which already existed in 1986 in their Code of Prof. Resp.) • the court rule wins, on constitutional grounds! JUDICIAL REGULATION AND THE DOCTRINE OF INHERENT POWER CH. 2: LEGAL PROFESSION AND THE PRACTICE OF LAW

2. INHERENT JUDICIAL POWER TO REGULATE LAWYERS • What is the rationale for this claim? • Wallace: “sources”: • “the traditional inherent and essential function of lawyers as officers of the courts” • “the constitutional separation of powers” • “this court’s exclusive original jurisdiction of attorney disciplinary proceedings” • are these equally persuasive?

3. INHERENT JUDICIAL POWER c’t’d How far does the claim go? • validate regulatory acts of judiciary? • invalidate conflicting regulatory acts of other branches? (Wolfram’s critique, n. 3 p. 46) • is this a claim of universal exemption of lawyers from application of statutes or executive regulations? Some times sounds like it, but • in Louisiana and many other states the courts will sustain a statute which is consistent with and supportive of their own regulatory positions • common example: statutes making unauthorized practice of law (defined as the courts define it) a crime • the MPRC themselves frequently refer to “other law” as potential qualifiers on a particular right or obligation – typically, that will be a law of more general application which, in the view of the courts, can be applied to lawyers without compromising their unique professional obligations

4. INHERENT POWER c’t’d • What aspects of law practice does the claim cover? • representing clients in court • private clients • government clients (prosecutors, n. 6 p. 47) • advising and representing clients outside of court • private clients • government clients (our problem, p. 42?) (n. 5 p. 47) • what arguments for excluding each of these?

5. B. FEDERAL INTERVENTION IN STATE REGULATION • Problem pp. 48-9 • State supreme court adopts rule limiting admission to practice to the top 20 scorers on the bar exam • Member objects to the rule on behalf of minorities, using provocative language to describe the rule and the court • objector asserts various claims against the court and its judges seeking to overturn the rule and for other kinds of relief • disciplinary action is instituted against her because of her criticism, and she asserts federal defenses in various contexts

6. Federal antitrust claims • against the court itself, based on its plenary control over the business of practicing law • What defense? Lawline, p. 50 • immunity from antitrust liability, as a state actor • Where does this defense come from? • Constitutional limitations on federal regulatory power? • Statutory interpretation?

7. antitrust claims c’t’d • Against the Board of Bar Examiners, created by the court to administer the admissions process, which adopted the rule on its own initiative • Is the BBE also immune from antitrust liability? What additional facts, if any, do you need to know? Ronwin, n. 6 p. 58; Goldfarb, n. 7 p. 59 • Did the court authorize the BBE to adopt rules of this character? Did it establish a clear policy to be implemented? • Did the court supervise the process of adoption?

8. Civil rights claim against judges • is there sufficient proof that the individual judges violated the civil rights of minorities? • if so, what relief is available? • damages? “judicial immunity”! • injunction against enforcing rule? yes • declaration of invalidity of rule? Yes

9. DISCIPLINARY ACTION AGAINST LAWYER • Charge filed against lawyer in the supreme court’s disciplinary procedure, based on statements made about court and judges • Lawyer now files suit in federal court against disciplinary authority, seeking injunction against enforcement of rules • Motion to dismiss the claim – what ruling? Middlesex County Ethics Commission, n. 9 p. 59: can the constitutional defense be asserted in the state proceeding? If so, abstention by federal courts pending state court decision

10. DISCIPLINARY ACTION c’t’d • Assume federal court abstains and disciplinary process continues, the First Amendment defense asserted and rejected, misconduct found and discipline recommended • now lawyer sues in federal district court to declare the findings to be inconsistent with First Amendment • motion to dismiss: what ruling? Feldman, n. 10 p. 60: lack of jurisdiction to review state court decisions!

11. FEDERAL CIVIL RIGHTS LAW • Congress enacts civil rights statute requiring state affirmative action in admissions, to achieve percentage of minority lawyer membership equal to that in general population – assume that this passes must under the federal constitution • if state supreme court refuses to comply, citing its plenary power to regulate lawyers, what ruling? • “preemption” or “supremacy”?

12. OTHER ISSUES • Lawline: What is the position of the ABA in relation to liability for the Model Rules being inconsistent with • antitrust laws? • civil rights laws? • Notes 1-4 pp 56-58: If a state supreme court adopts a unitary state bar, requiring all licensed lawyers in the state to be members, is that constitutional?