Professional Responsibility Bar Exam - Bar Exam Outlines

Professional Responsibility

REGULATION OF AND ADMISSION TO THE LEGAL PROFESSION

• Powers of Courts & Other Bodies to Regulate Lawyers in OK

  • Oklahoma Follows the ABA Model Rules of Professional Conduct modified by Ethics 2000

    • "Must" rules- mandatory (disciplinary rules)

    • "Should" rules- advisory (ethical considerations) - No punishment for violation

    • Types of Discipline for Violating "Must" Rule

      • Private Reprimand/ Censure

      • Public Reprimand/ Censure

        • Published in Court Proceeding

      • Suspension (for finite period)

        • Name can stay on door

      • Disbarment

• Admission to the Profession

  • US Sup Courts says state admission requirements must be rationally related to the practice of law

  • Not Rational

    • U.S. Citizenship

• State Residency

• Requirements when apply

  • Truth & Full Disclosure

    • No right to practice law

  • Duty to Cooperate

• Requirements on lawyers about applicants

  • Good applicants no duty

  • Bad applicants

    • Duty to report when asked, or to correct what you believe may have arisen in the matter

• Regulation After Admission-Lawyer Discipline

  • Regulated by OK Sup Court through the Oklahoma Bar Association's Profession Responsibility Commission

    • NOT AN AGENCY FOR PURPOSES OF ADMINISTRATIVE LAW so OAPA doesn’t apply

• Mandatory & Permissive Reporting of Professional Misconduct

  • 2 Pronged Duty when KNOW of violation

    • Report what you know (unless rep them)

    • Be avail to testify against them

• If unethical conduct is a crime, duty to report ONLY if relevant to some aspect of practice of law

• Duty to report is trumped by duty of confidentiality if represent the lawyer when you come to KNOW of the violation

• Multi-jurisdictional Practice

  • Unauthorized practice- can't do it where not admitted

• Permissible Temp Multi-Jurisdictional Practice

  • Associate with local lawyer

  • Special permission: pro hac vice

  • Mediation or arbitration out of home-state practice

  • Anything REASONABLY related to lawyer's home-state practice

• Permissible Permanent Multi-Jurisdictional Practice

  • Employed by only client which has several offices

    • Corporate lawyer

  • Legal services authorized by federal or local law

    • Patent license

  • Law firm w/offices in several states can use same name, but must identify which lawyers licensed in which states at all offices

• Responsibilities of Partners, Manager, Supervisory & Subordinate Lawyers

  • Supervisor is responsible for acts of subordinate IF

    • Knew of misconduct at time when consequences could be avoided or mitigated and fail take reasonable action

    • OR, if the violation raises

      • A substantial question as to character & they ordered or ratified the conduct

• Subordinate not responsible for his/her own acts IF

  • Told to do it

  • AND

  • It is at least arguable that did not know wrong or thought was okay

• Unauthorized Practice of Law-by Lawyers & Non-Lawyers

  • Activities that require a license and = practice of law

    • Appearing in court or depositions

    • Drafting legal documents

    • Negotiating settlements

• Activities that don't require a license so not practice of law

  • Interviewing

  • Filling in forms

  • Writing legal memos

• Fee Division With a Non-Lawyer

  • General Rule: Can't Do it

  • Exceptions:

    • Heirs of deceased attorney

    • Employees in form of salary and as part of pensions or bonus planes

  • May share court-awarded legal fees w/non-profit that employed, retained or recommended lawyer in the matter

• The Law Firm and Other Forms of Practice

  • Only lawyers can be Partners or Officers if ANY part of the partnership is the practice of law

  • Except: shareholders & only by temp operation of law

    • How deceased lawyer heirs get $

• Relationship of Dual Profession Lawyer w/ Non-Lawyers

  • Okay to list it

  • Soliciting legal business: can't use dual profession to solicit

  • Attorney-client privilege doesn’t apply in the other profession

  • Ancillary (or law-related) services:

    • OK to provide services reasonably performed in conjunction w/ and related to legal services, and note

      • Non-legal & legal provided together: rule applies to everything

      • Non-legal services provided by entity controlled by the lawyer: lawyer must assure that client knows of your interest & that it is not legal services

        • If don't you are responsible

• Restrictions on Right to Practice

  • Non-Compete: General Rule: Cant Do It

    • Exceptions: Reasonable Non-Compete

      • Retirement: ie where give $

      • Settling claim between the lawyers

C LIENT LAWYER RELATIONSHIP

• Formation of Client-Lawyer Relationship

  • General Rule: Lawyers have general freedom to reject cases

  • Exceptions:

    • "Defenseless or oppressed" SHOULD

    • Fair share of pro bono (SHOULD)(50 hours/year recommend)

    • Appointments (MUST)

      • Exceptions: (good cause shown)

        • Unreasonable financial burden

        • Duty to Reject cases

          • Physical or mental inability

          • Conflict of Interest

          • Frivolous claim or defense

          • STRONG feelings or bias

          • Incompetence/Lacking legal expertise

• Scope, Objective, and Means of the Representation

  • Decision Making Authority: Important Decisions Belonging to Client

    • Sue

    • Settle

    • Testify (in crim case)

    • Plea

    • Jury or not

    • Appeal

• Procedural & Tactical belong to attorney (law, tactics, strategy)

  • Which court file in

  • Depositions- to take or not

  • Discovery- what and if to seek/produce

  • Continuances- if to request or grant request

  • Exception:

    • Case Expenses: client can veto you on cost

• If client diminished capacity to make the big decisions, then must get a guardian appointed for them & still consult and try keep them involved in case

• Counsel & Assistance Within Bounds of Law

  • Means be honest and truthful…

  • Subject to discipline for KNOWINGLY making a false statement of fact or law to the court or failing to correct a previous false statement of MATERIAL law or MATERIAL fact

• Termination of Client-Lawyer Relationship

  • Need court permission when matter is in litigation & must return client's property, including case file & UNUSED portion of any retainer

  • Judges discretion usually considers the particular state of the matter when seek withdrawal

• Mandatory Withdrawal

  • Duty to reject when appointed

  • Client fraud & refuse to fix

  • Client "insists" on violation of law or ethical provision (rule)

  • Client has begun an illegal course of action

• Permissive Withdrawal

  • Any reason where there is no material harm to client, or

  • If client consents, or

  • Conditions Met:

    • Client persists in criminal or fraud conduct

    • Client used services to commit past crime or fraud

    • Client objectives repugnant or imprudent

    • Client breaks promise to pay fee

    • Unreasonable financial hardship for attorney's practice

    • Client won't cooperate

  • Can't abandon client.

    • MUST take reasonable steps to avoid material adverse effect on client

• Fees (TESTED)

  • Fee arrangement (scope, rate basis, expenses client will pay) SHALL be communicated to client BEFORE (or reasonable time after) representation starts

  • All fees must be reasonable

  • Factors:

    • Time & labor

    • Difficulty & novelty of issues

    • Experience, reputation and ability

    • Relationship; nature and length

    • Exclusions (if lawyer has turn away other business if client knows of it)

    • Fixed or Contingent (contingent can be higher but no more than 50% and still reasonable)

    • Fees customarily charged in the location

• Contingent Fees: reasonable & SIGNED BY CLIENT in writing and also explain fees

  • Do this before take case & after case over by Settlement letter

  • NOT IN CRIMINAL CASE

  • NOT IN DOMESTIC RELATIONS CASE

    • But okay if case is for getting back child support/alimony payment

• Lawyer can buy & sell law practice (and good will)

  • Entire practice or entire field of practice must be sold

  • Must use competence in identifying a competent buyer

  • WRITTEN NOTICE to seller's clients

    • Sale

    • Right to get files returned

    • Right to get new counsel

    • Consent presumed if not action by client w/in 90 days of notice

  • Seller must cease to engage in private practice of law (or in that field sold)

    • Unless leave the jurisdiction

  • Purchaser take ALL client matters

CLIENT CONFIDENTIALITY

• Attorney-Client Privilege & Confidentiality

  • Belongs to client

  • Privilege protects confidential communications

  • Confidentiality covers the same AND any other info obtained by the attorney relating to representation, regardless of source of info including that which may be embarrassing or derogatory

  • Presence of 3rd Party

    • Does not destroy confidentiality if 3rd party present to help further the attorney-client relationship

• Work Product Doctrine

  • Material prepared by lawyer for or in anticipation of litigation is not subject to discovery Unless the other side shows

    • Substantial need for the material, AND

    • Inability to gather the material w/o undue hardship

  • Mental impressions, legal theories, opinions of attorney absolutely immune from discovery, regardless of need, unless waived
    

• Disclosures Expressly or Impliedly Authorized by Client (what client authorizes w/ INFORMED CONSENT to disclose)

  • Express authorization requires INFORMED CONSENT:

    • Client agrees to proposed course of conduct after lawyer sufficient explains material risks & reasonable alternatives

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