Regulation of the Legal Profession - Module 1 of 5

Regulation of the Legal Profession - Module 1 of 5


Module 1: Regulation of the Legal Profession

 

Introduction

Legal ethics are the rules of professional conduct for practicing attorneys. These rules govern the conduct of attorneys with regard to all aspects of legal practice, including dealings with clients, the court and third parties. The goals of these rules are to ensure the integrity of the legal profession and to specify the responsibilities of a lawyer as a representative of a client, as an officer of the legal system and as a public citizen having special responsibility for the quality of justice.[1]

The standards and requirements of legal ethics stem from a combination of statutory provisions and norms that have been widely adopted in the legal profession. Sources of legal ethics include the American Bar Association’s Model Rules of Professional Conduct, directives from state courts, guidelines of state bar associations and the opinions of ethics experts.

While there is widespread uniformity among states regarding legal ethics, the specifics of the rules for professional conduct are determined by each jurisdiction. The Model Rules of Professional Conduct are the most important source of the rules governing lawyers across the country.[2] They have been adopted in whole or part by the high courts or the bar associations of almost all states.[3]


Admission Requirements

To qualify for admission to a state bar, most states require that candidates have graduated college, or completed most of the requirements to earn an undergraduate degree. Likewise, most states require candidates to have graduated from a law school approved by the American Bar Association, though some states provide alternative pathways to admission.[4]

Candidates who meet the education requirements are eligible to sit for the bar examination. Each state administers the bar exam for eligible candidates, and it is usually administered by a committee of the state’s high court.

Each state has its own procedures, but, generally, the exam consists of two parts, administered over a two-day period. Traditionally, the first part was the Multi State Bar exam, developed by the National Conference of Bar Examiners, a uniform test that tests knowledge of shared common law principles, certain widely adopted model codes, as well as constitutional law. The second part is a state-specific exam, which tests the candidate’s knowledge of the laws, rules, and regulations in effect in that state.[5]

Most states, however, have now adopted the Uniform Bar Examination,[6] which is a standardized exam testing nationwide legal principles in place of the state-law specific exam.[7]

Aspiring attorneys must also pass the Multistate Professional Responsibility Exam, which tests knowledge and understanding of legal ethics and the professional responsibilities of practicing lawyers.[8]

Some states grant admission to members in good standing of other states without requiring the bar exam, if they can demonstrate a specified time of legal practice and other criteria.[9]

Before being admitted, aspiring attorneys must undergo a character and fitness evaluation and interview. The candidate must submit personal information regarding educational and employment history and residential and financial information. The candidate must also answer questions about academic infractions and disciplinary measures, criminal history and provide character references. [10]

Candidates with criminal histories may still be admitted to practice law, though admission may be denied, especially if the committee finds evidence of a history of dishonesty, such as crimes involving fraud or misappropriation of funds, a current history of untreated mental health-related problems or ongoing alcohol and substance abuse issues.[11] Failure to be honest and candid in the character and fitness questionnaire and interview is considered grounds for denial of admission.[12]

Most states require post-admission continuing legal education for practicing lawyers. To remain a member of the bar in good standing, a lawyer must complete the periodic continuing legal education requirements adopted in the state of admission.[13]


Unauthorized Practice of Law

Admission to a state bar entitles one to practice law in that jurisdiction. Non-lawyers and lawyers who are not admitted to practice in the jurisdiction may not practice law. Generally speaking, the practice of law means the application of legal principles and judgments that require the knowledge and skill of a person trained in law to advance the interests and objectives of another party.[14]

Each jurisdiction has its own definition of what specific types of conduct would be considered to be practice of law. These typically include

a)    Giving advice or counsel to others as to their legal rights or responsibilities,

b)    Drafting or completing legal documents or agreements affecting someone else’s legal rights

c)     Representing someone else before a court or other formal adjudicative body, and

d)    Negotiating legal rights or responsibilities on behalf of another.[15]

Note that serving in a neutral capacity as a mediator or arbitrator is allowed for a non-lawyer even though legal expertise may be required.[16] Likewise, some states allow non-lawyers to represent someone in small claims court and in certain administrative proceedings.[17]

Restrictions on practicing law only limit conduct undertaken on behalf of another person.  Anyone may represent oneself in a legal setting, including in court.

People working under the supervision of licensed lawyers may also undertake certain legal services without bar admission. The supervising lawyer is responsible to ensure that those conducting the law-related services meet the stands of ethics and professional responsibility applicable to lawyers.[18] Thus, the lawyer will be responsible for any violations by those under supervision if she instructs or ratifies the conduct of the non-lawyer.[19]      

Paralegals are non-lawyer legal professionals who are qualified by education, training or work experience to perform specifically designated substantive legal work for which a lawyer is responsible.[20] They are employed by lawyers, law firms and government agencies, and perform legal services such as legal research, drafting legal documents, interviewing clients and witnesses, summarizing documents, analyzing court records and performing administrative functions for a law office. A paralegal may not perform services which are considered to constitute the practice of law and may not establish attorney-client relationships, set legal fees, give independent legal opinions or advice to a client or represent a client before a court unless authorized by the court.[21] 

Attorneys are admitted to practice law under the auspices of the highest court in each jurisdiction.  A lawyer may only practice law in a state in which she has been admitted to practice. Should a lawyer admitted in one jurisdiction seek to practice in another state, she must seek admission in the second jurisdiction.[22]

At the discretion of the court, an attorney who has good standing in another state may be granted the right to practice on a temporary basis for a specific matter arising in another jurisdiction.[23] This is known as pro hoc vice admission, and it’s generally granted if the attorney has a prior relationship with the client or is a specialist in a particular area of law. Such temporary practice must be undertaken in association with a lawyer who is admitted to practice in that jurisdiction, who must actively participate in the matter.[24]

States may require that the local lawyer vouch for the pro hoc vice attorney, and sign all official papers connected with the case at issue.[25] Lawyers admitted on a pro hoc vice basis are expected to familiarize themselves with the local rules of professional responsibility in the state of temporary practice, and are subject to local state law and the disciplinary jurisdiction of the state bar.[26]


Professional Misconduct

As the goal of legal ethics and the rules of professional responsibility is to maintain the integrity of the legal profession, any violation or attempt to violate the rules of professional conduct or to knowingly assist or induce another to do so is considered professional misconduct.[27] Professional misconduct may be the basis for initiating a disciplinary process against a lawyer.[28]  

Lawyers also have the obligation to the legal profession to inform the appropriate authorities if they know that other lawyers have committed professional misconduct if the conduct in questions raises substantial questions regarding a lawyer’s honesty.[29] This may manifest itself in a pattern of conduct that makes clear that a lawyer is not meeting her obligations under the professional rules.[30] However, the obligation to report professional misconduct does not require disclosure of confidential information which is related to the representation of a client.[31]

Jurisdictions have established different standards for determining under which circumstances the obligation to report professional misconduct applies. In one case, during the course of the discovery process preceding litigation, an attorney being sued by another attorney from his law firm uncovered what he believed to be fraudulent conduct on the part of the plaintiff which amounted to professional misconduct.  

The court held that, as a lawyer, the defendant had an obligation to report the misconduct despite the fact that there was no “absolute certainty” as to the misconduct, since the defendant had “more than mere suspicion” that it constituted professional misconduct.[32]

Note that professional misconduct goes beyond violations of the formal rules of professional conduct. The Model Rules outline several categories of actions which would be considered misconduct, including conduct that involves dishonesty or fraud, is prejudicial to the administration of justice or is a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer.[33] Likewise, harassment or discrimination related to the practice of law on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status is considered professional misconduct.[34]


Legal Malpractice

Lawyers have the duty to provide competent representation, which requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for legal representation, as well as reasonable diligence and promptness in representing a client.[35] If the lawyer violates these duties, this can give rise to professional disciplinary measures and may constitute legal malpractice, which can be the basis of civil liability.

If a lawyer fails to exercise such ordinarily reasonable skill and knowledge, and this breach of duty causes the client to suffer damages, the client can recover damages from the lawyer for the negligent breach of duty.[36]  Proof of this element generally requires the use of expert testimony to explain the attorney’s “special professional standard of care” and what might constitute a breach of that standard.[37]

A client can only sue a lawyer for malpractice if the client suffers an adverse outcome stemming from the misconduct. The client, as a plaintiff, must prove that he would have prevailed in the underlying case absent attorney negligence. The plaintiff must demonstrate that, had the lawyer used ordinarily reasonable legal skill and knowledge, the outcome of the representation would have been different.[38]

Successfully showing negligence and causation can be difficult because there may be legitimate alternative strategies that a reasonably prudent lawyer might employ under a given set of circumstances. The outcome of a case is never guaranteed, and simply failing to choose the best course of action is generally not enough to be considered negligence.

So, courts must ask whether the lawyer’s conduct and decisions were within the range of reasonable alternatives from the perspective of a reasonable, careful and prudent lawyer, and whether reasonable care was exercised in making these decisions.[39]

Unprofessional and irresponsible malpractice such as missing deadlines, failure to appear at court hearings, failing to take action within the statute of limitations or serious misreading of applicable law are most likely to give rise to successful malpractice lawsuits. Note also that, in addition to negligence, breach of contract and breach of fiduciary duty can be grounds for malpractice actions.[40]


Sanctions and Discipline

The most lenient form of discipline is an admonition or reprimand. An admonition is a letter from a state disciplinary board to the lawyer which states the facts forming the evidentiary basis for the finding of misconduct, and the specific rule or standard that the lawyer violated. Although the admonition letter is private and does not limit a lawyer’s right to practice, it may be considered by the board or a court if there is a subsequent finding of misconduct, so it increases the risk of more serious sanctions in the future.[41] When the violation is deemed to merit broader publicity and awareness, the admonition may be published in a suitable medium, such as the journal of the state bar or a local newspaper.[42]

For more serious infractions, a lawyer’s right to practice law may be suspended for periods ranging from a few months to several years. Suspended attorneys may be required to pass a legal ethics examination before being readmitted to the bar. During the suspension, the lawyer may not hold himself as one who is entitled to practice law, and may be required to inform existing clients of the suspension.[43] In appropriate circumstances, the suspension may be stayed for a probationary period during which the attorney may be required to ameliorate any harm from the violation or to undergo counseling or monitoring related to personal issues connected to an ethics violation.[44]

The most severe form of discipline a lawyer may face is disbarment, which is the permanent revocation of an attorney’s license to practice law. Disbarment has such far-reaching personal consequences for a lawyer that it is usually reserved for the most egregious and repeated violations of legal ethics.

Examples of the types of conduct which might lead to disbarment include the intentional misappropriation of client funds, practicing law while under suspension, a demonstrated, long-standing pattern of failing to perform legal services for clients in breach of fiduciary duty, demanding sexual relations with a client as a condition of professional representation and violation of a court order related to the practice of law.[45]

In addition, the commission of crimes involving the intent to deceive, defraud, steal, or suborn a false statement, or commission of an offense involving moral turpitude, may merit disbarment, especially if the crimes are related to the practice of law.[46] 

Note that while disbarment involves permanent removal from practicing law, some states permit a disbarred attorney to petition the court for readmission after a period of time, generally after several years have passed.[47] Readmission is a lengthy process and highly discretionary. Disbarred attorneys must demonstrate that they have fully complied with the disbarment order, have the requisite character and fitness to practice law, and that it would be in the public interest to reinstate the attorney to the practice of law.[48]

A disciplinary investigation typically begins with a complaint against a lawyer. The complaint may be from a client, an adversary or a judge. A designated investigator will examine the facts and will issue a report to the disciplinary board or grievance committee appointed by the state high court, along with a recommendation. After the disciplinary board reviews the report, it may dismiss the matter, request an additional investigation or issue a letter of advisement or a private admonition to the lawyer.

If the board concludes that more severe, public sanctions are called for, it may authorize formal disciplinary hearings before the court.[49] The lawyer will receive notice of the proceedings and a statement outlining the allegations. The lawyer will then have the opportunity to submit a reply disputing any allegations, along with names of witnesses and copies of documents that may support the lawyer’s version of events.[50] The court will then make a final determination based on the pleadings and the testimony of witnesses where appropriate.[51]

In making the determination, the court must consider the nature of the misconduct, any aggravating or mitigating circumstances, the appropriate sanctions per the applicable rules and applicable case law and precedent.  The court imposes disciplinary measures in the manner best calculated to protect the public, maintain the honor and integrity of the profession and deter others from committing similar misconduct.[52]

In our next module, we’ll look at the attorney-client relationship, how it is formed and the duties attorneys owe to their clients.

 


[1] Model Rules of Professional Conduct pmbl. 1(American Bar Association 2018).

[2] Model Rules of Professional Conduct (ABA 2018).

[3] Duke University School of Law, Law Library Research Guides, Legal Ethics (2017)https://law.duke.edu/sites/default/files/lib/legalethics.pdf (last visited June 2, 2019).

[4] National Conference of Bar Examiners and American Bar Association Comprehensive Guide to Bar Admission Requirements  vii, 2 (2019), http://www.ncbex.org/assets/BarAdmissionGuide/NCBE-CompGuide-2019.pdf (last visited June 3, 2019).

[5] National Conference of Bar Examiners, Multistate Bar Examination, http://www.ncbex.org/exams/mbe/.

[6] National Conference of Bar Examiners, Uniform Bar Examination, http://www.ncbex.org/exams/ube/.

[7] National Conference of Bar Examiners and American Bar Association Comprehensive Guide to Bar Admission Requirements (2019), http://www.ncbex.org/assets/BarAdmissionGuide/NCBE-CompGuide-2019.pdf.

[8] See National Conference of Bar Examiners, Multistate Professional Responsibility Examination, http://www.ncbex.org/exams/mpre/.

[9] E.g. Washington State Court Rules, Admission and Practice Rulesrule 3 (2019)http://www.courts.wa.gov/court_rules/?fa=court_rules.list&group=ga&set=apr (last visited June 3, 2019).

[10] See National Conference of Bar Examiners, sample application (2019), http://www.ncbex.org/dmsdocument/134 (last visited June 3, 2019).

[11] See University at Buffalo School of Law, Character and Fitness, http://www.law.buffalo.edu/current/barExam/character-and-fitness.html (last visited June 3, 2019).

[12] Model Rules of Professional Conduct rule 8.1(ABA 2018).

[13] National Conference of Bar Examiners and American Bar Association Comprehensive Guide to Bar Admission Requirements, chart 11 (2019), http://www.ncbex.org/assets/BarAdmissionGuide/NCBE-CompGuide-2019.pdf (last visited June 11, 2019).

[14] See ABA Task Force on the Model Definition of the Practice of Law, Report to the House of Delegates, https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/model-def_migrated/recomm.pdf  (last visited June 4, 2019).

[15] See Washington Courts, General Rules, rule 24(a)(2002),  https://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=ga&set=GR&ruleid=gagr24.

[16] Washington State Courts General Rules, rule 24(b)(2002)https://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=ga&set=GR&ruleid=gagr24.

[17] See Arizona Supreme Court rule 31(d) (2019)https://govt.westlaw.com/azrules/Document/NAE025A20A48C11DE97CFC30D94C59A9E?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default) (last visited June 10, 2019).

[18] Model Rules of Professional Conduct rule 5.3(b) (ABA 2018).

[19] Model Rules of Professional Conduct rule 5.3(c) (ABA 2018).

[20] See American Bar Association Standing Committee on Paralegals Current ABA Definition of Legal Assistant/Paralegal (2014)https://www.americanbar.org/groups/paralegals/profession-information/current_aba_definition_of_legal_assistant_paralegal/ (last visited June 4, 2019).

[21] See National Association of Legal Assistants Code of Ethics and Professional Responsibility Canon 3 (2007)https://www.nala.org/certification/nala-code-ethics-and-professional-responsibility (last visited June 4, 2019).

[22] See  Model Rules of Professional Conduct rule 5.5(a) (ABA 2018).

[23] Model Rules of Professional Conduct rule 5.5(c)(ABA 2018).

[24] Model Rules of Professional Conduct rule 5.5(c)(1)(ABA 2018).

[25] See State of Connecticut Judicial Branch, Connecticut Bar Examining Committee,Rules of the Superior Court Regulating Admission to the Bar § 2-16(2)(2018)http://www.jud.ct.gov/cbec/rules.htm#2-16 (last visited June 11, 2019).

[26] See California Courts California Rules of Court rule 9.40(f) (2019)https://www.courts.ca.gov/documents/title_9.pdf.

[27] Model Rules of Professional Conductrule 8.4(a) (ABA 2018).

[28] Model Rules of Professional Conduct pmbl.19 (ABA 2018).

[29] Model Rules of Professional Conduct rule 8.3(a) (ABA 2018).

[30] American Bar Association Standing Committee on Ethics and Professional Responsibility, Formal Op. 03-431 (2003), https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba_formal_opinion_03_431.authcheckdam.pdf.

[31] Model Rules of Professional Conduct rule 8.3(c) (ABA 2018).

[32] Skolnick v. Altheimer & Gray, 730 N.E.2d 4 (Ill. 2000).

[33] Model Rules of Professional Conduct rule 8.4(b)-(d) (ABA 2018).

[34] Model Rules of Professional Conduct rule 8.4(g) (ABA 2018).

[35] Model Rules of Professional Conduct rules 1.1, 1.3 (ABA 2018).

[36] McConwellv. FMG, Inc., 861 P.2d 830 (Kan. Ct. App. 1993).

[37] Innes v. Howell Corp., 76 F.3d 702(6th Cir. 1996).

[38] Marrs v. Kelly, 95 S.W.3d 856 (Ky.2003).

[39] Clark County Fire District No. 5 v.Bullivant Houser Bailey PC, 324 P.3d 743 (Wash. Ct. App. 2014).

[40] See Judicial Council of California Civil Jury Instructions No.4106 (2016)https://www.justia.com/documents/trials-litigation-caci.pdf (last visited June 10, 2019).

[41] See N.Y. Comp. Codes R. & Regs. tit. 22 §1240.2(a)(2019)N.Y. Comp. Codes R. & Regs.tit. 22 §1240.7(d)(2)(v) (2019).

[42] Model Rules for Lawyer Disciplinary Enforcement rule 10(A (ABA 2002).

[43] See StateBar of California Standards for Attorney Sanctions for Professional Misconduct  standard 1.2(c)(1) (2015)https://www.calbar.ca.gov/Portals/0/documents/rules/Rules_Title5_Procedure.pdf.

[44] See ColumbusBar Ass’n v. Gill, 998 N.E.2d 1141 (Ohio 2013).

[45] See StateBar of California Standards for Attorney Sanctions for Professional Misconduct, standards 1.8, 2.1,2.5-2.9.(2015)https://www.calbar.ca.gov/Portals/0/documents/rules/Rules_Title5_Procedure.pdf.

[46] See StateBar of California Standards for AttorneySanctions and Professional Misconduct  Standard 2.11 (2015)https://www.calbar.ca.gov/Portals/0/documents/rules/Rules_Title5_Procedure.pdf.

[47] See N.Y. Comp. Codes R. & Regs. tit. 22 § 691.11 (2019).

[48] See N.Y. Comp. Codes R. & Regs. tit. 22 § 1240.16(a) (2019).

[49] See N.Y. Comp. Codes R. & Regs. tit. 22 § 1240.7(d)(2019).

[50] See N.Y. Comp. Codes R. & Regs. tit. 22 § 1240.8(a) (2019).

[51] See N.Y. Comp. Codes R. & Regs. tit. 22 § 1240.8(a) (2019).

[52] See N.Y. Comp. Codes R. & Regs. tit. 22 § 1240.8(b)(2)(2019).

 

 

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