Legal Professions Outline

Professor Scheflin

  1. General
  2. Regulation
  3. Lawyers are the most regulated
  4. Who regulates them? It stems from the separation of powers
  5. Legislature and supreme ct collaborate to control them
  6. Sup ct has the ultimate authority over them

(1)  CA sup ct should have the final say

(2)  BUT attorney client priv would be found in the Code of Evidence (legislature has the ultimate authority but it’s not clear why. The sup ct honors this abdication)

(1)  sup ct can in no way alter the legislative scheme when it comes to privileges

  1. State Bar
  2. State bar created by legislation in 1927 but it’s answerable to the CA sup ct
  3. State bar has no final authority over anything
  4. It must be approved by the legislature or by the court
  5. State Bar court made to alleviate cases from the courts of appeal
  6. Not the final authority. There’s an appeal to the CA sup ct
  7. State bar proposes rule, lawyers in the membership comment on it and send it back.
  8. It doesn’t become a rule unless it’s the CA sup ct that adopts it

Regulation of the Legal Profession

  1. The Ethics Regulators
  2. Courts and Legislature
  3. The Doctrine of State Preemption
  4. Where the federal government has the right to act, it may preempt state law

(1)  Fed law however don’t generally regulate lawyer conduct, except when lawyers appear before the federal tribunals

  1. The only ways fed can step in is if the constitution is involved or when there is a federal interest involved and the state has encroached upon it
  2. Baron v City of LA (ordinance says they must register as a lobbyist if they appear in front of a tribunal)

(1)  the State Bar Act preempts the field of regulation of attorneys only insofar as they are “practicing law”

(1)  practicing law can be seen as the exclusive right to represent another in court

(2)  it’s a misdemeanor to practice law in CA w/o a license, but there is no definition found of what “practicing law” is exactly

(3)  the character of the act, not the place where it occurs, is the decisive element and if the application of legal knowledge and technique is required

  1. The Doctrine of Negative Inherent Powers (Inherent Authority)
  2. Three aspects of the doctrine

(1)  Irreducible inherent authority - powers fundamental to the essence of the ct as a constitutional tribunal

(2)  Necessary to the exercise of all others - powers permitting the ct to conduct its business

(1)  Eg. Regulation of lawyers

(3)  Necessary in the pursuit of a just result - powers which arise from notions of equity, neutrality, and fairness

  1. CA courts have inherent powers, independent of statute, derived from

(1)  the courts’ equitable power derived from the historic power of equity courts and

(2)  supervisory or administrative powers which all courts possess to enable them to carry out their duties

  1. Whenever an argument is available that a serious disadvantage to the administration of justice might occur, the doctrine may be raised
  2. Potter v Eli Lilly - (lawyers settle but don’t inform the judge)

(1)  trial court has sufficient inherent authority to conduct an investigation and a hearing to determine whether its judgments accurately reflect the truth

  1. The American Bar Association
  2. Established in 1878, voluntary organization of lawyers
  3. Canons of Ethics and Model Code of Professional Responsibility were abandoned
  4. ABA Model Rules of Professional Conduct was officially published in 1983
  5. American Law Institute
  6. Founded in 1923, invitation only, prepare Restatements of the Law
  7. Restatement 3d, The Law Governing Lawyers
  8. CA has it’s own rules
  9. The CA State Bar
  10. The Functions of the State Bar
  11. Has the authority to sue, make contracts, own and maintain property, lobby before the Legislature, create and maintain programs to assist the public in learning of their legal rights, and help facilitate lay persons to obtain competent legal counsel
  12. Administer a client security fund, establish and maintain a procedure for the arbitration of disputes, regulate admission to the bar, draft standards to govern the conduct and activities of Bar members, and conduct disciplinary investigations and impose public or private reproval for willful violations of the Rules of Professional Conduct
  13. State bar created by legislation in 1927 but it’s answerable to the CA sup ct
  14. State bar has no final authority over anything
  15. State bar proposes rule, lawyers in the membership comment on it and send it back.

(1)  It doesn’t become a rule unless it’s the CA sup ct that adopts it

  1. Mandatory bar
  2. To practice law in a jx you must be a member of the bar in that jx

(1)  CA has mandatory bar

  1. Constitutionality of

(1)  Keller v CA (CA Bar lobbies and puts out political statements)

(1)  it is constitutional for the Bar to take a political position

(2)  if you don’t agree w/ the Bar’s political position, apply for a refund of your dues that goes to the issue

  1. Post-Keller Issues
  2. CBPC § 6140 states: the Conference of Delegates (reps of local bar associations) shall not be funded w/ mandatory fees collected by the State Bar
  3. The State Bar and Rules of Ethics
  4. The State Bar doesn’t have the power to make ethical rules that are binding to CA lawyers
  5. The proposed rule becomes binding only when it’s officially adopted by the Supreme Court or Legislature
  6. Conducts proceedings when complaints against lawyers have been filed
  7. Issues Opinions on ethical matters from time to time
  8. The State Bar Courts
  9. State Bar court made to alleviate cases from the courts of appeal

(1)  Not the final authority. There’s an appeal to the CA sup ct

  1. O’brien v Jones (exec and legis branches appoint hearing judges in the State Bar Court)

(1)  benefits of a more diverse perspective achieved through non-judicial appointment of some hearing judges. Their appointments are subject to approval by the Supreme Court anyway

  1. The CA Legislature and the Regulation of Attorneys
  2. Business and Prof Code § 6000-6228 = State Bar Act
  3. The Scope of Ethical Regulation
  4. Violation of a Rule of Professional Responsibility
  5. MR 8.5 states: Disciplinary Authority - A lawyer admitted to practice in this jx is subject to the disciplinary authority of this jx, regardless of where the lawyer’s conduct occurs. A lawyer may be subject to the disciplinary authority of both this jx and another jx where the lawyer is admitted for the same conduct
  6. CRPC 1-100(d) states: Geographic Scope of Rules - These rules shall govern the activities of members in and outside this state, except as members lawfully practicing outside this state may be specifically required by a jx in which they are practicing to follow rules of professional conduct different from these rules
  7. R3d § 52(2) states: The Standard of Care - Proof of a violation of a rule or statute regulating the conduct of lawyers (a) doesn’t give rise to an implied c/a for professional negligence or breach of fiduciary duty, (b) doesn’t preclude other proof concerning the duty of care or fiduciary duty and (c) may be considered by a trier of fact as an aid in understanding and applying the standard to the extent the rule was designed for the protection of persons in the position of the claimant

(1)  Comment f states: A rule or statute that doesn’t mention a damages remedy doesn’t give rise to a c/a for lack of care or fiduciary duty

  1. Hizey v Carpenter (bad legal advice about zoned property)

(1)  Majority: Neither CPR nor RPC set the standard of care so violations of the CPR or RPC do not give rise to an independent cause of action against the attorney

  1. Mirabito v Liccardo (lawyer gave bad advice to cousin to invest in high tech)

(1)  CAPR not intended to create new civil c/a

(2)  You must have an independent c/a (breach of k or fiduciary duty) and then you can bring in the Rules

(3)  CA Minority: though they don’t set the standard of care, the rules are relevant b/c they relate to the standard of conduct a lawyer must meet

  1. Conduct Not Expressly Prohibited
  2. Stratmore v State Bar (law student lied about travel expenses to NY law firms)

(1)  Just because it’s not listed as prohibited, doesn’t mean it’s allowed

(2)  Conduct before you’re admitted can keep you out of the bar or once you’re admitted, it can be the basis to punish you or throw you out

(3)  There’s no SOL for the State Bar, no matter what the offense

  1. Reporting Violations
  2. MR 8.3 states: Reporting Professional Misconduct - a lawyer having knowledge that another lawyer has committed a violation of the RPC that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects,(or believes that a judge is unfit) shall inform the appropriate professional authority
  3. CRPC 1-500(b) states: Agreements Restricting a Member’s Practice - A member shall not be a party to or participate in offering or making an agreement which precludes the reporting of a violation of these rules
  4. R3d § 5(3) states: Professional Discipline - A lawyer who knows of another lawyer’s violation of applicable rules of professional conduct raising a substantial question of the lawyer’s honesty or trustworthiness or the lawyer’s fitness as a lawyer in some other respect must report that information to appropriate disciplinary authorities

(1)  Comment i states: The rule applies to lawyers whether or not they’re in the same firm. Reporting to a senior is not enough unless you think he’ll report it to the proper authority

  1. In CA there is NO affirmative ethical duty to report professional misconduct, whereas the ABA says that the failure to inform is an ethical violation in itself
  2. The ABA Model Rules in CA
  3. The ABA rules don’t establish disciplinary standards in CA
  4. They have not been adopted in CA and have no legal force on their own, but may be considered as a collateral source, where there’s no direct authority in CA and there is no conflict with the public policy of CA

Preventive Policing

  1. Admission standards
  2. In re Francis Theodore Cano (found all the loopholes to get admitted to the bar)
  3. A court is not a slave to literal interpretation of its local rules where injustice is the result
  4. Formal Requirements

  1. R3d § 2 states: Admission to Practice Law - In order to become a lawyer and qualify to practice law in a jx of admission, a prospective lawyer must comply w/ requirements of the kx relating to such matters as education, other demonstration of competence such as success in a bar examination, and character
  2. Education
  3. Most states require an undergraduate degree and have age requirement
  4. CA

(1)  At least 18 years old and had at least two years of college work or “intellectual ability” equivalent

  1. R3d § 2, Comment c states: Most states require a minimum of an undergrad degree from an accredited college and a degree from an ABA accredited law school
  2. CA recognizes exceptions for non accredited law schools (CBPC § 6060e3)

(1)  if the student studied for 4 years at a law school that is authorized or approved to confer professional degrees and requires classroom attendance for at least 270 hrs/year

(2)  a foreign law school wherein English common law is not the basis of jurisprudence

(3)  in a law office in Ca under the personal supervision of a 5-year active member of the State Bar of CA

(4)  in the chambers and under the personal supervision of a judge of a CA court of record and the judge makes reports

(5)  by instruction in law from a correspondence law school authorized or approved by CA to confer professional degrees, provided it requires 864 hrs/year

(6)  of by any combination of these methods

  1. CA is one of 8 states to permit admission to the bar w/o first attending law school
  2. Bar Exam
  3. R3d § 2, Comment e states: You take bar courses and the bar exam to review a large sweep of legal subjects and legal rules, that you may not have covered in school
  4. Most states and CA require passage of that state’s bar as a condition to practice law in that state
  5. CA has no limit on how many times you can take it. The record was 48 by Maxcy Dean Filer
  6. Citizenship and Residence
  7. R3d § 2, Comment f states: Local residence and US citizenship may not be required as a condition of admission or continued membership; though some states have required an in-state office

(1)  SCUS held this criteria bears no reasonable relationship to the applicant’s ability or fitness to practice law

  1. NH v Piper (Passed the bar in NH, but didn’t live in NH)

(1)  NH restricts bar membership to residents b/c it’s important for lawyers to be familiar with and committed to upholding local interests

  1. Martin v Davis

(1)  In KS, the say that a visiting attorney shall associate local counsel before he or she can appear in the courts or before boards or commissions

(2)  Non-residents are less available for many court procedures

  1. Howard v Babcock

(1)  in CA it’s a big issue about whether legal pro should be seen as a business or a profession

(1)  businesses have restrictive covenants, trade secrets - if you leave you can’t practice in the area, or you can’t use what you’ve learned from the company

5.  Reciprocity

  1. R3d § 2, Comment b states: There is no limit on how many jx a lawyer may practice in. Half the states allow reciprocity
  2. If you pass the bar in one state and are in good standing, you’ll be admitted to another state bar on motion (i.e. you don’t have to take the bar)
  3. CA is in the majority of states which require an attorney licensed in another state to pass the CA bar exam as a condition for admission to the bar

(1)  However, the out of state attorney is only required to take a portion of the full bar examination

(2)  An applicant’s prior conduct while practicing law in another state can justify a state bar refusal of permission to take the bar exam in CA

  1. VA v Freidman (a woman DC resident was able to got admission to VA state bar by reciprocity)
  2. Substantive Requirements
  3. Admissions Proceedings and Disciplinary Proceedings
  4. In admissions, the burden is on the applicant to show moral fitness, whereas in disciplinary proceedings, the burden is on the state bar to rove that an attorney is morally unfit
  5. Almost any evidence any be considered to determine the applicant’s character for honesty, integrity, and general morality
  6. Moral turpitude is looked at for admission refusal

(1)  Factors: Fraud, dishonesty, cheating, promiscuity, immorality, gross antisocial conduct, inability to discharge his duties as an attorney like drunkenness or public brawling, and conduct for personal gain only