Regulating Lawyers and

Law Students

Social Contract between Society and the Legal Profession

The public agrees to allow the profession to self regulate and to establish their own standards for how lawyers perform their work

and in return …………..

What Society Gets

A profession that agrees to (individually and as a whole):

maintain high standards of minimum competence and ethical conduct

discipline those attorneys who fail to meet these standards

promote and foster the core ideals and values of the profession

restrain self interest and to some degree to serve the public interest

Who Regulates Attorneys

State Bar Associations by:

Shaping the state ethical codes

Issuing ethical advisory opinions

In some states, controlling lawyer discipline proceedings

In states that have an integrated bar, exercising control over admission exams and character and fitness issues

Who Regulates Attorneys

Courts by:

Adopting Rules of Professional Conduct

Controlling the disciplinary process and imposing discipline (example is NY Departmental Disciplinary Committee)

Exercising control over admission process (NY Rules for Admission)

New York’s definition of professional misconduct for

attorneys

Any attorney who fails to conduct himself both professionally and personally, in conformity with the standards of conduct imposed upon members of the bar as conditions for the privilege to practice law and any attorney who violates any provision of the rules of this court governing the conduct of attorneys, or with respect to conduct on or after April 1, 2009, the Rules of Professional Conduct ….. shall be guilty of professional misconduct

22 NYCRR § 603.2

New York’s Rules on Court Decorum22 NYCRR 604.1

The attorney is both an officer of the court and an advocate. It is his professional obligation to conduct his case courageously, vigorously, and with all the skill and knowledge he possesses. It is also his obligation to uphold the honor and maintain the dignity of the profession. He must avoid disorder or disruption in the courtroom, and he must maintain a respectful attitude toward the court. In all respects the attorney is bound, in court and out, by the provisions of the Rules of Professional Conduct (Part 1200 of this Title).

22 NYCRR 604.1

The first part of both rules reference Professionalism

Misconduct is failing to conduct oneself both “professionally and personally, in conformity with the standards of conduct imposed upon members of the bar as conditions for the privilege to practice law”

Attorneys have an “obligation to uphold the honor and maintain the dignity of the profession. He must avoid disorder or disruption in the courtroom, and he must maintain a respectful attitude toward the court.”

Professionalism

Wide variety of behaviors and actions including but not limited to:

competence, punctuality, dress, decorum, attitude, care, collegiality, honesty, forthrightness, reliability, conscientiousness, thoughtfulness, emotional intelligence, thoroughness, diligence, ability to listen, ability to communicate, putting others before self, maintaining confidentiality.

The second part of those rules reference

the Rules of Professional Conduct

and any attorney who violates any provision of the rules of this court governing the conduct of attorneys, or with respect to conduct on or after April 1, 2009, the Rules of Professional Conduct ….. shall be guilty of professional misconduct

In all respects the attorney is bound, in court and out, by the provisions of the Rules of Professional Conduct .

New York Rules of Professional Conduct

Generally tracks the ABA’s Model Rules of Professional Conduct

Multi-State Examination on Professional Responsibility(MPRE) – will test your knowledge of the ABA Model Rules

You will be responsible for and must follow the rules of your jurisdiction.

(A few of the) Rules of Professional Conduct

Competence (Rule 1.1)

Confidentiality (Rule 1.2)

Communication (Rule 1.4)

Conflict of Interest (Rules 1.6 – 1.12)

Special responsibilities of Prosecutors (Rule 3.8)

Truthfulness in Statements to Others (Rule 4.1)

Communicating with Unrepresented persons (Rule 4.3)

Who Regulates Law Students

LSAC – (remember LSAC ?)

Law Schools

In their admissions process (application questions)

In their own internal disciplinary procedures

But mostly -

State and National Bar Associations

Nationally:

Through the law school accreditation process (including standards for minimal bar passage rates, classroom hours, faculty to student ratios, etc.)

State:

Through the admission process (integrated bar) via the state bar exam and character and fitness review

LSAC?(The Law School Admissions Council)

Investigates and holds hearings on instances of misconduct and irregularities in the admission process

Keeps findings on record indefinitely and alert all law schools of the findings with each application

Provides findings to state bar associations if requested (and requests are rising)

Law Schools

In admissions cycle

During law school – diciplinary actions

In the admissions cycle

Character and Fitness Questions

Ongoing duty to report

CPA’s Stellar Law School Career Screeches to a Halt as St. John’s

Rescinds His Admission

Third in his class at St. John's University School of Law, a certified public accountant working at PricewaterhouseCoopers was looking ahead to a bright future in the law.

But David Powers' would-be legal career came to a screeching halt after he wrote to New York's character and fitness committee to disclose an expunged 1999 conviction for drug possession on his record. When he sought a letter of support from his law school, St. John's not only refused but rescinded his admission,

From the ABA Journal Legal Ethics column Feb. 2, 2011

Two Law Grads Who Didn’t Tell Schools of Full Criminal Pasts Are

Barred from Bar Exam

The Georgia Supreme Court is refusing to allow two law graduates to take the state bar exam partly because they didn’t reveal their entire criminal histories on their law school applications.

From the ABA Journal Legal Ethics column of 9/26/2011

New York Character and Fitness Investigation

“Every person who is a candidate for admission to the bar ….. must undergo an investigation of her or his character and fitness. The process requires the candidate to complete an application questionnaire, to complete or secure the completion of several additional forms, to submit required documentation, and to appear for a personal interview before a member of the Committees on Character and Fitness.”

From the New York State Bar Association website.

Law Grad with No Plan to Repay Debt Fails Character and Fitness Mandate,

Ohio Top Court Says

Ohio State University law grad Hassan Jonathan Griffin of Columbus, Ohio, has a part-time job in the public defender’s office and no feasible plan to repay his law-school and credit-card debt.

That combination means Griffin has so far failed to satisfy the character and fitness qualification to get a law license, the Ohio Supreme Court has ruled.

From the ABA Journal Legal Ethics column Jan. 13, 2011

Q. and A.

General Questions (without personal information) now.

Individual questions relating to individual circumstances in my office (make an appointment this week).