20675029
Description
Flashcards by JD Advising, updated more than 1 year ago
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Created by JD Advising
almost 5 years ago
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| Question | Answer |
| Who regulates lawyers? | Jurisdiction with authority: a lawyer is subject to regulation by each state where the lawyer is admitted to practice (regardless of where the lawyer practices or where the conduct occurs). Lawyers are regulated by the ethics rules in their state, case law, and court rules. There are also federal acts (such as the Sarbanes-Oxley Act) which lawyers are required to abide by. |
| What are the requirements for admission to the legal profession? | To be admitted to practice law in most states, one needs to: • attend college and law school, • pass a bar, and • pass character and fitness clearance. The burden of proof is on the applicant to establish good moral character and to cooperate with a reasonable investigation by the state. |
| Where is a lawyer subject to discipline? | Where he or she is admitted: a lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of the jurisdiction where he or she is admitted, regardless of where the lawyer's conduct occurs. Where conduct occurs: a lawyer not admitted in the jurisdiction is also subject to the disciplinary authority of the jurisdiction if the lawyer provides or offers to provide any legal services in the jurisdiction. May be subject to discipline in more than one jurisdiction: a lawyer may be subject to the disciplinary authority of two or more jurisdictions for the same conduct. |
| Which state’s law will be used at disciplinary proceedings? (In other words, describe the choice of law rules.) | For conduct in connection with a matter pending before a tribunal (court), the rules of the jurisdiction in which the tribunal sits. For any other conduct, the rules of the jurisdiction in which the lawyer’s conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. Exception: a lawyer shall not be subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur. |
| What constitutes misconduct? | (1) violate or attempt to violate the MRPC, knowingly assist or induce another to do so, or do so through the acts of another; (2) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects; (3) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation; (4) engage in conduct that is prejudicial to the administration of justice; (5) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the MRPC or other law; or (6) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law. |
| When does a lawyer have to report (i.e., mandatory reporting) another lawyer’s misconduct? | A lawyer who knows that another lawyer has committed a violation of the MRPC that raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform the appropriate professional authority. If the lawyer does not report the other lawyer, the non-reporting lawyer is subject to discipline. The same rule applies to reporting judges. Exceptions: This rule does not require disclosure of information otherwise protected by: • the rules of confidentiality (Rule 1.6), or • information gained by a lawyer or judge while participating in an approved lawyers’ assistance program. |
| When may a lawyer practice in a jurisdiction in which he is not licensed on a temporary basis? | A lawyer admitted in another United States jurisdiction and who is not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis on four bases: • If a lawyer’s services are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice, then temporary practice is permitted. • The lawyer associates with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter. • A lawyer may participate in a mediation, arbitration, or other alternative resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice. • A lawyer may ask to be admitted to a tribunal for a temporary basis (called pro hac vice, meaning “by permission of the judge”). A lawyer who is admitted or expects to be admitted pro hac vice may engage in activities in the state such as meeting with clients, interviewing witnesses, and reviewing documents. |
| When can a lawyer share a fee with a nonlawyer? | General rule: a lawyer may not share a fee with a nonlawyer. Exceptions: 1) Death benefits: an agreement by a lawyer with the lawyer's firm, partner, or associate may provide for the payment of money after the lawyer's death, to the lawyer's estate or to specified persons. 2) Sale of a law practice: a lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may pay the agreed-upon purchase price. 3) Retirement plans for nonlawyer employees: a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement. 4) Bonuses for nonlawyer employees: A lawyer or law firm may give out bonuses to nonlawyer employees that are based in whole or in part on how much money (including legal fees) overall the firm made over a period of time. 5) Sharing court-awarded fees with a nonprofit: a lawyer may share court-awarded legal fees with a nonprofit organization that employed, retained, or recommended employment of the lawyer in the matter. |
| What are the responsibilities of partners and managing lawyers with regard to other lawyers at the law firm? | A partner in a law firm and a lawyer who possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures which give reasonable assurance that all lawyers in the firm follow the MRPC. This includes putting in place procedures designed to detect and resolve conflicts of interest, accounting for client funds, and ensuring that inexperienced lawyers are properly supervised. |
| What is the responsibility of a supervising lawyer? | A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer follows the MRPC. A lawyer shall be responsible for another lawyer's violation of the MRPC if: 1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or 2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated, but fails to take reasonable remedial action. |
| When must a subordinate lawyer comply with the MRPC? | A new or subordinate lawyer is bound by the MRPC, notwithstanding that the lawyer acted at the direction of another person. A subordinate lawyer does not violate the MRPC if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty. |
| What is a lawyer’s responsibility over a nonlawyer employed by, retained by, or associated with a lawyer? | A partner and a lawyer who possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has procedures in effect that give reasonable assurance that the nonlawyer’s conduct is compatible with the professional obligations of the lawyer. A lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer. A lawyer shall be responsible for conduct of such a person which would be a violation of the MRPC if engaged in by a lawyer, if: 1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or 2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated, but fails to take reasonable remedial action. |
| What are the ways that a lawyer is not permitted to restrict his right to practice law? | A lawyer shall not participate in offering or making: 1) A partnership, shareholders, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement. 2) An agreement in which a restriction on the lawyer's right to practice is part of the settlement of a client controversy. |
| What are the requirements for the sale of a law practice? | A lawyer or law firm may sell or purchase a law practice (or an area of a practice), including good will, if all of the following conditions are satisfied: 1) the seller ceases to engage in the private practice of law or in the area of practice that has been sold in the geographical area in which the practice has been conducted; (1) Exceptions (a) Return to private practice as a result of an unanticipated change in circumstances does not necessarily result in a violation. (b) Further, this does not prohibit employment as a lawyer on the staff of a public agency or a legal services entity that provides legal services to the poor, or as in-house counsel to a business. (c) A lawyer can also sell an area of their practice. 2) the entire practice, or the entire area of practice, is sold to one or more lawyers or law firms; 3) the seller gives written notice to each of the seller's clients; and 4) the fees charged to existing clients shall not be increased by reason of the sale. |
| What must clients be notified of when a lawyer intends to sell his law practice? | When selling a law practice, a lawyer must notify his or her clients of: 1) the proposed sale, 2) the client's right to retain other counsel or to take possession of the file, and 3) the fact that the client's consent to the transfer of the client's files will be presumed if the client does not take any action or does not otherwise object within 90 days of receipt of the notice. If a client cannot be given notice: If a client cannot be given notice, the representation of that client may be transferred to the purchaser only upon entry of an order so authorizing by a court having jurisdiction. The seller may disclose to the court information relating to the representation only to the extent necessary to obtain an order authorizing the transfer of a file. |
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