TOPIC A: REGULATION OF THE PROFESSION P.R Prof. Janicke

SOURCES OF LAW OF PROFESSIONAL RESPONSIBILITY RULES PROMULGATED BY HIGHEST COURT OF A STATE LEGISLATION STATE BAR, BY STATUTORY AUTHORITY 22016TOPIC A

MANY STATES USE ABA MODEL RULES OF PROFESSIONAL RESPONSIBILITY AS A MODEL –OFTEN WITH SOME CHANGES –TEXAS IS ONE OF THEM 32016TOPIC A

ETHICS VIOLATION IS NOT CONCLUSIVE ON MALPRACTICE CLAIM BUT IS RELEVANT AND IS A COMPLETE DEFENSE IN A SUIT TO RECOVER LEGAL FEES 2016TOPIC A4

MPRE USES ABA MODEL RULES –in LERMAN-SCHRAG-GUPTA BOOK OCCASIONALLY ALSO CASE LAW 52016TOPIC A

JUDICIAL CONDUCT MPRE USES ABA MODEL CODE OF JUDICIAL CONDUCT POSTED FEDERAL JUDGES ARE ALSO BOUND BY A STATUTE ON DISQUALIFICATION –28 U.S.C. § 455 POSTED 62016TOPIC A

BAR AUTHORITIES IN EACH STATE, APPOINTED BY HIGHEST COURT OR BY THE STATE BAR THEY QUALIFY (OR DISQUALIFY) APPLICANTS FOR ADMISSION TO PRACTICE LAW THEY PROCESS GRIEVANCES 72016TOPIC A

WHO IS REGULATED? THOSE WHO “PRACTICE LAW” 2016TOPIC A8

WHAT IS “PRACTICING LAW”? EVEN AT THIS LATE DATE, STATES ARE NOT AGREED ON A DEFINITION >>> 2016TOPIC A9

WE KNOW 3 THINGS ARE PRACTICING LAW: 1.HOLDING YOURSELF OUT TO THE PUBLIC AS BEING A LAWYER R. 5.5(b) 2.ESTABLISHING AN OFFICE FOR THAT PURPOSE R. 5.5(b) 3.REGULARLY DOING “LEGAL” CHORES FOR WHICH YOU CHARGE FEES 2016TOPIC A10

AND A COROLLARY: LAWYER CANNOT ASSIST ANOTHER IN THE UNAUTHORIZED “PRACTICE [OF] LAW” R. 5.5(a) A FAVORITE ON THE MPRE –THEY EXPECT THE ANSWER “NO” >>> 2016TOPIC A11

ESPECIALLY TRUE IF THE NON- LAWYER WORKS FOR THE LAWYER’S FIRM –LAWYER IS OBLIGED TO SUPERVISE THE WORK R. 5.3 C2 2016TOPIC A12

EVERYTHING ELSE IS FUZZY –A NON-LAWYER HELPING FRIENDS OR RELATIVES, e.g., ON LOANS, WILLS, MORTGAGES, TAXES, ETC. – IS NOT REGARDED AS “PRACTICING LAW” 2016TOPIC A13

ADMITTED LAWYER CROSSING STATE LINES OPINIONS ON THIS VARY BY STATE 2016TOPIC A14

ABA MODEL RULE 5.5(c) ALLOWS FOR TEMPORARY PRACTICE IN ANOTHER STATE: –IF ASSOCIATED WITH AN ADMITTED LAWYER ON THE CASE, or –IN LITIGATION, IF ADMITTED IN THAT COURT (PRO HAC VICE OR PERMANENTLY), or –ADR PROCEEDING, or –ACTS REASONABLY RELATED TO A HOME-STATE REPRESENTATION 2016TOPIC A15

IN-HOUSE LAWYERS ARE EXEMPTED R. 5.5(d)(1) CAN BE ADMITTED IN ANOTHER STATE OR, WITH A PROVISO, IN ANOTHER COUNTRY 2016TOPIC A16

THE FUTURE OF ONLINE LEGAL HELP SITES IS UNKNOWN COULD BE UNLAWFUL SOLICITATION OF CLIENTS AND REVENUE COULD BE PRACTICING WITHOUT A LICENSE ARE REAL LAWYERS BEHIND THE CURTAIN? 2016TOPIC A17

QUALIFYING FOR ADMISSION GOOD MORAL CHARACTER –PRIMARILY HONESTY / INTEGRITY OWNING UP TO BAD THINGS [see R. 8.1] –MORAL TURPITUDE NO CONVICTION NEEDED NO CITIZENSHIP REQUIREMENT TOPIC A

STAYING ADMITTED – THE BASICS GROUNDS FOR DISCIPLINE (INCLUDING DISBARMENT): –VIOLATING A DISCIPLINARY RULE –CRIMINALITY THAT SHOWS UNFITNESS TO PRACTICE TOPIC A

DISCIPLINARY RULES R. 8.4: –VIOLATING ANY PROF. CONDUCT RULE –HELPING ANYONE ELSE TO DO SO –ATTEMPTING TO VIOLATE ANY PROF. CONDUCT RULE >>> TOPIC A

R. 8.4(c): ENGAGING IN ANY CONDUCT INVOLVING DISHONESTY, FRAUD, DECEIT OR MISREPRESENTATION –EVEN IF IT HAPPENED IN ANOTHER STATE >>> TOPIC A

THE DECEIT, ETC., NEED NOT BE IN THE PRACTICE OF LAW! –PRIVATE LIFE –FAMILY LIFE –PRIVATE BUSINESS DEALINGS NO CRIMINAL CHARGES ARE NEEDED! –BAR AUTHORITIES CAN ADJUDICATE TOPIC A

R. 8.4(d): “CONDUCT PREJUDICIAL TO THE ADMINISTRATION OF JUSTICE” –EVEN IF NO DECEIT –IS THERE ANY MISDEED NOT COVERED BY THIS RULE? TOPIC A

SILENCE CAN BE DECEITFUL EXAMPLE: –LAWYER TESTIFIES BEFORE A GOVT. AGENCY –IF HE IS DOING IT FOR A CLIENT, MUST REVEAL THAT FACT TO THE AGENCY R. 3.9 >>> 2016TOPIC A24

NOTE ALSO: –AN AGENCY IS A “TRIBUNAL” R. 1.0(m) –SUCH A LAWYER CANNOT MAKE ANY FALSE STATEMENTS R. 3.9, REFERENCING R TOPIC A25

DUTY TO REPORT OTHERS R. 8.3: –MUST REPORT OTHER LAWYERS OR JUDGES WHO ARE “KNOWN” TO HAVE VIOLATED AN ETHICS RULE UNLESS INFO IS PROTECTED BY PRIVILEGE OR CLIENT CONFIDENTIALITY TOPIC A

“COMPETENCE” IN A CASE IS AN ETHICAL REQUIREMENT R. 1.1 IF A LAWYER HANDLES A CASE INCOMPETENTLY, WHAT DO YOU DO? 2016TOPIC A27

FORBIDDEN: RESTRICTIONS ON LAWYER’S FUTURE PRACTICE CONTRACT WITH LAW FIRM: NO COMPETING AFTER LEAVING FIRM –ILLEGAL, EXCEPT AS CONDITION FOR BENEFITS R. 5.6(a) SETTLEMENT AGREEMENT WITH CLAUSE FOR NON-REPRESENTATIONS IN THE FUTURE –ILLEGAL, EVEN IF CLIENT WANTS IT R. 5.6(b), AND EVEN IF IT’S A DEAL-BREAKER 2016TOPIC A28

BADMOUTHING A JUDGE R. 8.2: –NO FALSE OR RECKLESS STMTS. ABOUT: A JUDGE’S QUALIFICATIONS OR INTEGRITY A JUDICIAL CANDIDATE’S QUALIFICATIONS OR INTEGRITY TOPIC A

SOME SPECIFIC OTHER DUTIES RULE 5.6: –NOT ALLOWED TO FORECLOSE FUTURE REPRESENTATIONS BY AGREEMENT –REASON: PUBLIC RIGHT TO LEGAL SERVICES –PITFALL: SETTLEMENTS TOPIC A

RULE 1.18 DUTIES TO PROSPECTIVE CLIENTS –SOME DUTIES EXIST EVEN IF YOU DECLINE THE CASE CANNOT USE OR REVEAL INFO LEARNED [R. 1.18(b) –MAY BE DISQUALIFIED FROM LATER GOOD ENGAGEMENTS [R. 1.18(c)] TOPIC A

INFORMED CONSENTS WILL CURE THIS [R. 1.18(d)] –BUT ALMOST IMPOSSIBLE TO GET EARLY PRECAUTIONS ON LEARNING INFO MIGHT HELP [R. 1.18(d)(2)] –LEARNING JUST ENOUGH TO SAY “NO” –DIFFICULT TO IMPLEMENT IN PRACTICE TOPIC A

MEANING OF “INFORMED CONSENT” R. 1.0(e): 1.ADEQUATE INFO NEEDED 2.ADEQUATE EXPLANATION BY LWYR NEEDED 3.MUST TELL ABOUT RISKS 4.MUST TELL ABOUT ALTERNATIVES TOPIC A

INFORMED CONSENT DOES NOT HAVE TO BE IN WRITING TO BE INFORMED BUT MOST RULES REQUIRE – “WRITTEN” INFORMED CONSENT or –“INFORMED CONSENT CONFIRMED IN WRITING” [MPRE: IF IN DOUBT, ASSUME WRITING IS NEEDED] 2016TOPIC A34