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Legal Professional Responsibility Agenda

Review history of ABA Model Rules, admission rules, UPL regulations, and ethics laws. Understand bar admission process and nonlawyer practice. Debate software and lawyer-administrator collaboration.

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Legal Professional Responsibility Agenda

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  1. Agenda • Review Missed Syllabus [CALI exercise] • Collect PA Rule Book Order Forms • Review missed part of Chapter 1 • D. The Legal Dimension of Professional Responsibility • E. Review Useful URLs Handout • Chapter 2 material • Move here Admission issues: How Do I Become a Lawyer?

  2. D. The Legal Dimension of Professional Responsibility • Review the history of the ABA Model Rules of Professional Conduct • The 1908 Canons • The 1977 Code of Professional Responsibility • Used DRs & ECs [Disciplinary Rules & Ethical Considerations] • 1983 ABA Model Rules and Ethics 2000 & Ethics 20/20 Amendments (2012-13) • The ALI, Restatement of the Law Governing Lawyers (2000) • Additional sources of law (constitutional, statutory, case-law, international initiatives) • Review of URLs Handout

  3. Rule 8.1 Bar Admission And Disciplinary Matters An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not: (a) knowingly make a false statement of material fact; or (b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.

  4. Material We Are Coveringin Assignment #2(1) • Admission as a lawyer [State or federal court admission rules] • UPL: Nonlawyer Practice- state rules, statutes or cases • UPL: Lawyers Working with Nonlawyers [5.3 & 5-4] • Ancillary Businesses [5.7] • UPL: Unauthorized Practice by Lawyers [5.5] • BONUS: Choice of [Ethics] Law [8.5]

  5. E. Admission Issues: How Do You Become a Lawyer? • State-based admission system • Find your state’s Bar Admission Rules (e.g PA BAR 203). Typically for new applicants: • Take the bar exam (includes the MPRE – taken earlier) • Character & fitness requirements • New Developments: The UBE & the ABA’s revised model admission on motion rule • Residency requirements are unconstitutional • Separate admission for EACH court system (state v. each federal court) • Temporary admissions procedures (Rule 5.5 & Pro Hac Vice – see chapter 2)

  6. UPL: Nonlawyer Practice

  7. 2-1. What is the rationale offered for restrictions on non-lawyer practice? P.31 • Protecting the legal profession from competition • Protecting consumers from incompetent and unethical practitioners • Preventing innovation in the delivery of legal services • None of the above

  8. 2-2. As a general rule, in most jurisdictions a non-lawyer may do the all of following except: • Sell legal forms • Type in the blanks in legal forms for a customer • Publish books advising people on how to complete legal forms • Advise customers in person on how to complete legal forms • No exceptions - a non-lawyer may perform all of the above. P. 31

  9. 2-3 (p. 39). Legal Software Inc. makes available to consumers a program that helps them fill out legal forms. The software asks the consumer to answer personal questions regarding the consumer's circumstances and preferences regarding the consumer's legal problem. The software and associated web site identify the relevant form the consumer needs and based on the others help the consumer complete the appropriate form, suggesting specific provisions tailored to the consumer's needs and preferences. Has Legal Software Inc. engaged in unauthorized practice of law? According to the traditional rule, no because software is the same as a book. According to the traditional rule, no because the service is not personalized. According to the traditional rule, yes because the service is personalized. According to the traditional rule, yes because the service is personalized, but the rule has changed to permit legal software.

  10. UPL: Lawyers Working with Nonlawyersand and Ancillary Businesses

  11. 2-4 (p. 42). An attorney is a senior partner at a law firm in which there are 50 lawyers. The firm pays each of its lawyers a fixed annual salary. In addition, at year's end, each lawyer receives a bonus from the profits of the firm in the proportion that the annual salary of each bears to the total of the fixed annual salaries of all lawyers. The attorney plans to introduce a new management plan under which the firm's non-lawyer office administrator would have general charge of all business matters but would not participate in any decisions involving legal judgment. The administrator would be paid a fixed annual salary and would be included as a participant in the firm's bonus plan on the same basis as the lawyers in the firm. This would usually yield a bonus of approximately one-fourth to one-third of the administrator's total annual compensation. The amount paid to the administrator will not exceed the compensation commonly paid to law office administrators within the local legal community. Is it proper for the attorney to institute such a plan?

  12. 2-5 (p. 44). An attorney is a member of the bar and a salaried employee of a bank's trust department. As part of his duties, he prepares a monthly newsletter concerning wills, trusts, estates, and taxes that the bank sends to all of its customers. The newsletter contains a recommendation to the customer to review his or her will in light of the information contained and, if the customer has any questions, to bring the will to the bank, where the attorney will review the customer's will and answer the customer's legal questions. The bank provides that attorney's services to its customers for no charge. Is the attorney subject to discipline for the foregoing?

  13. 2-6 (p. 44). A business attorney entered into a partnership with a certified public accountant. The partnership provided legal and other assistance to clients in connection with business and tax planning, tax filings, and other personal and corporate business matters. The accountant performed only work that she was authorized to perform as a certified public accountant. The attorney made reasonable efforts to ensure that the accountant did not interfere with the attorney's compliance with his professional obligations as a lawyer. Is the attorney subject to discipline?

  14. 2-7 (p. 45). Joan Lawyer has a leading real estate practice in Small County. She is also part owner of Small County Title. She suggests to her clients who purchase real estate that they consider purchasing their title insurance from Small County Title. Joan discloses in writing that she owns the company and recommends that her clients consider the rates and policies of competing title insurance companies. She explains that the services provided by Small County Title are not legal services and that the legal ethics rules do not apply to the purchase of title insurance. Joan suggests that clients feel free to consult another lawyer as to whether they should purchase title insurance from a company their real estate lawyer owns. The rates and policies that Small County Title offers are comparable to those of its competitors. Under what circumstances, if any, would this be ok?

  15. Question 2-7 Choices • Joanis not subject to discipline if the clients give informed consent in writing. • Joan is not subject to discipline because she informs clients of the opportunity to consult independent counsel. • Joan is not subject to discipline because the rates and policies of Small County Title are comparable to those of its competitors. • Joan is subject to discipline unless she complies with all three requirements listed above.

  16. Unauthorized Practice by Lawyers

  17. 2-8 (p. 47). Giant Manufacturer wants to buy widgets from Small Producer. Both Giant and Small are headquartered in California. Small's outside counsel, John Lawyer, admitted to practice in New York, travels to California from his New York office to negotiate the deal on Small's behalf. After extensive negotiations, Giant agrees to pay Small $10 million for the widgets. John bills Small for $500,0000] thousand for legal fees. Small believes the fee is far too high and refuses to pay. It retains a California lawyer and decides to argue that it does not have to pay anything to John Lawyer because he was engaged in unauthorized practice of law. Will Small’s argument succeed?

  18. 2-9 (p. 56). Joan Jones is an associate at Franklin & Ignatius. She is admitted to the New York Bar. The firm sends her to the State of Sirius to appear in court in a case where the firm has been admitted pro hac vice. Has she committed UPL?

  19. 2-10 (p. 57). Did Joan Jones violate UPL when she entered Fordham to investigate and prepare the case before the firm and its lawyers were admitted pro hac vice? 2-11 (p. 57). Would she have violated UPL if the firm had brought an arbitration on behalf of its client and not a court case? 2-12 (p. 58) . Does Joan violate UPL if she transfers full-time to F&I's Sirius office and works under the supervision of a Sirius admitted attorney? 2-13 (p. 58) . Does Joan commit UPL if she leaves F&I to become in-house counsel at Monolith, Inc., located in Sirius?

  20. 2-14 (p. 59). Joan rejoins F&I as a partner in its New York office. As a corporate partner, she is in charge of representing ABC, Inc., based in New Jersey, in its takeover of DEF, Inc., based in New York. Her team includes Jim, a NY lawyer coordinating the NJ litigation, and Jane, a corporate associate admitted in NY and NJ. They discover ABC has made a fraudulent statement relevant to the litigation. NJ requires disclosure. NY does not. The F&I lawyers do not disclose. Which of the following is true? If the predominant effect is in NJ, all face discipline absent contrary reasonable belief. Only Jane faces discipline because she is a NJ lawyer. Only Jim faces discipline because he is litigating the matter in NJ. None face discipline because NY does not require disclosure.

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