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Professional Responsibility 2015

Ch. 2 basic elements of law


practice
George W. Conk
Adjunct Professor of Law
Senior Fellow, Stein Center for Law &
Ethics, Fordham Law School
Room 8-122
gconk@law.fordham.edu

Ch. 2 - Basic elements of law


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Unauthorized Practice of Law

The monopoly

State Licensing

Ch. 2 - Basic elements of law


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Section 6126(a) California Business


and Professions Code

Any person advertising or holding


himself or herself out as practicing or
entitled to practice law or otherwise
practicing law who is not an active
member of the State Bar, or
otherwise authorized pursuant to
statute or court rule to practice law
in this state at the time of doing so,
is guilty of a misdemeanor.
Does this violate equal
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Limits on non-lawyers providing


legal assistance

Q. 2-1Rationales

-protect the profession

- protect consumers

- prevent innovation

- none of the above


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Q. 2-2 Marilyns Secretarial


Service -A non-lawyer may not

A- Sell legal forms

B- fill in the blanks for a


customer

C- Publish books with legal


advice

D- Advise people in person how


to complete forms

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Legal Software

Nolo.com Legalzoom.com
Texas 1999 81.101
[T]he practice of law does not
include the design, creation,
publication, distribution, display, or
sale ... [of] computer software, or
similar products if the products
clearly and conspicuously state that
the products are not a substitute for
the advice of an attorney
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Q2.3 Are Nolo and Legal zoom


engaged in UPL?

A- No. Software is like a book.

B. No. It is not a personalized service

C. Yes. Because the service is


personalized

D. Yes but the rule has changed, so


No!
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Who can practice law?


Working with nonlawyers
Entities, employers, and staf

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Q. 2-4 May a law firm split


profits with its office manager?

(A) Yes, because the amount paid to


the administrator does not exceed
the compensation commonly paid to
the law office administrators within
the local legal community.
(B) Yes, because an employee of the
firm may be compensated based on
the profits of the firm.
Ch. 2 - Basic elements of law
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Q. 2-4 May a law firm split


profits with its office manager?

(C) No, because the administrators


bonus is computed on the same
basis as those of the lawyers in the
firm.
(D) No, because the administrators
compensation is derived from the
legal needs of the firms lawyers.

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RPC 5.4a Fee Division

[a] lawyer or law firm shall not share


legal fees with a nonlawyer, except
that(3) 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.
What justifies this restraint of trade?
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MRPC 5.4 Professional


Independence of a Lawyer

(4) a lawyer may share courtawarded legal fees with a


nonprofit organization that
employed, retained or
recommended employment of
the lawyer in the matter.
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Q. 2-5 Is a Bank trust department


lawyer subject to discipline for advising
customers re wills?

A) Yes newsletters advise nonclients

B) Yes he is helping the bank


engage in UPL

C) No because its a free service

D) No because he has a law license


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Supervisory responsibility

Respondeat superior civil


liability

RPC 5.1 Responsibilities of


Partners, Managers, and
Supervisory Lawyers
RPC 5.2 Responsibilities of a
Subordinate Lawyer
RPC 5.3 Responsibilities
Regarding Nonlawyer Assistants

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Q. 2-6 May a lawyer enter into a


partnership with a certified public
accountant?

Why are in-house lawyers for


businesses allowed to work in
states where they are not
licensed?

Should we allow accountants to


own law firms? Walmart?
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Relationship between entitys


attorney and its constituents

See Restatement 14
Constituents are not clients of entity
attorney
- unless they reasonably have that
impression or
- there is an agreement to represent
the constituents

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Rule 5.1 Responsibilities of Partners,


Managers, and Supervisory Lawyers

(a) A partner in a law firm, and a


lawyer who individually or together
with other lawyers possesses
comparable managerial authority in
a law firm, shall make reasonable
eforts to ensure that the firm has in
efect measures giving reasonable
assurance that all lawyers in the firm
conform to the Rules of Professional
Conduct.
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Rule 5.1 Responsibilities of Partners,


Managers, and Supervisory Lawyers

(b) A lawyer having direct


supervisory authority over another
lawyer shall make reasonable eforts
to ensure that the other lawyer
conforms to the Rules of Professional
Conduct.
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Rule 5.1 Responsibilities of Partners,


Managers, and Supervisory Lawyers

(c) A lawyer shall be responsible for


another lawyer's violation of the
Rules of Professional
Conduct if:
(1) the lawyer orders or, with
knowledge of the specific conduct,
ratifies the conduct involved; or

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Rule 5.1 Responsibilities of Partners,


Managers, and Supervisory Lawyers

(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.
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The independence of the


profession
Only lawyers may own a law
practice
Referral fees generally
prohibited
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Permissible fee sharing among


lawyers - RPC 1.5 (e) and 5.4

Within a firm

Among lawyers who assume joint


responsibility

In proportion to work done

To a certified trial attorney (NJ


rule)
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Permissible fee sharing with nonlawyers MRPC 5.4

To estate of a lawyer for work


done

In a profit- sharing plan

Court-awarded fees with a nonprofit referring agency

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Ancillary businesses, Q. 2-7, p. 46

May a real estate lawyer who


owns a title insurance brokerage
steer his clients to his own
company? To his wifes
company?

RPCs 5.4, 1.8a

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Ancillary services

MRPC 5.7 Responsibilities


regarding law-related services
- inform client that law-related
services are distinct from legal
representation, etc. preferably in
writing
-in compliance MRPC 1.8 (a)

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Ancillary businesses controlled by the


lawyer see RPC 5.7 comments

What problems may be presented by


provision of law-related services?

Can I sell
books/forms/software/cloud-based
databases via my firms website?

Why not share ownership with other


licensed professionals?
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Law-related ancillary services RPC


5.7) may include

title search, title insurance


financial planning, accounting, tax
preparation, trust services
real estate counseling
legislative lobbying
economic analysis
social work, psychological counseling
patent, medical or environmental
consulting.
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MRPC 1.8 - business


transactions with a client

No business transactions with clients


except:
Terms are fully disclosed in writing
and are understandable
Client advised of desirability of and
given reasonable time to own lawyer
Informed consent, in writing

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Unauthorized Practice of Law


By non-lawyers
By lawyers

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Q. 2-8 NY Lawyer does California work

California client refusal to pay:


(A) will fail because John is admitted
to practice in New York.
(B) will fail because this was not a
litigation matter.
(C) will fail because the legal
services market is national and not
restricted to a particular state.
(D) will succeed because John is not
admitted to practice in California.
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Definition the practice of law

The practice of lawis not limited to


litigation. . . . One is engaged in the
practice of law whenever legal
knowledge, training, skill, and ability
are required.I

n re Jackman, 165 N.J. 580, 586


(2000).

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The arbitration exception

California Supreme Court in


Birbrower refused to create an
arbitration exception saying
that was for the legislature.
Was court wise to defer to the
Legislature?
Should Birbrower have been
entirely denied fees for the
California work?
Been indicted?
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Birbrower v. Superior Court (CA 1998)

The primary inquiry is whether the


unlicensed lawyer engaged in
sufficient activities in the state or
created a continuing relationship
with the California client that
included legal duties or obligations.

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NY RPC 5.5 Unauthorized Practice of


Law

(a) A lawyer shall not practice


law in a jurisdiction in violation
of the regulation of the legal
profession in that jurisdiction.

(b) A lawyer shall not aid a


nonlawyer in the unauthorized
practice of law.

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MRPC 5.5 Unauthorized Practice of Law;


Multijurisdictional Practice of Law

(b) A lawyer who is not admitted to


practice in this jurisdiction shall not:

(1) except as authorized by these


Rules or other law, establish an office
or other systematic and continuous
presence in this jurisdiction for the
practice of law

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MRPC 5.5 Unauthorized Practice of Law;


Multijurisdictional Practice of Law

(c) A lawyer admitted in another


United States jurisdictionmay
provide legal services on a
temporary basis in this jurisdiction
that:
(1) are undertaken in association
with local counsel who actively
participates in the matter
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MRPC 5.5 Unauthorized Practice of Law;


Multijurisdictional Practice of Law

(2) are in or reasonably related to a


pending or potential proceeding if
the lawyer, or a person the lawyer is
assisting, is authorized to appear or
reasonably expects to be authorized

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MRPC 5.5 (3) Unauthorized Practice of


Law; Out of state practice permissible IF

Are in or reasonably related to a


pending or potential arbitration,
mediation, or other alternative
dispute resolution proceeding arising
from the lawyers jurisdiction and are
not services for which the forum
requires pro hac vice admission
4) arises from or reasonably related
to lawyers practice in her home
jurisdiction
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In house counsel
Company lawyers

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RPC 5.5 (d) amended 2013

(d) A lawyer admitted in another


United States jurisdiction or in a
foreign jurisdiction, and not
disbarred or suspended from practice
in any jurisdiction or the equivalent
thereof, may provide legal services
through an office or other
systematic and continuous presence
in this jurisdiction that:
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RPC 5.5 (d) amended 2013

(1) are provided to the lawyers


employer or its organizational
affiliates; and are not services
for which the forum requires pro
hac vice admission

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RPC 5.5 (d) Foreign lawyers

when performed by a foreign lawyer


and requires advice concerning the
law of this or another U.S.
jurisdiction or of the United States,
such advice shall be based upon the
advice of a U.S. lawyer who is duly
licensed and authorized by the
jurisdiction to provide such advice; or
are services that the lawyer is
authorized by federal or other law or
rule to provide in this jurisdiction.
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MRPC 5.5 (d) in-house out of


state counsel

OK if service is
- provided to employer or affiliates
and
state does not req. pro hac vice
admission or
- the representation is permitted by
federal or other law

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ABA Model Rule for Registration of InHouse Counsel (2013)


A lawyer admitted to the practice of
law in another United States
jurisdiction, or
in a foreign jurisdiction, who is
employed as a lawyer and has a
continuous
presence in this jurisdiction is
employed as a lawyer by an
organization as
permitted pursuant to Rule 5.5(d)(1)
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ABA Model Rule for Registration of InHouse Counsel (2013)


A registered lawyer SHALL NOT

If a foreign lawyer, provide advice on


the law of this or another U.S.
jurisdiction or of the United States
except on the basis of advice from a
lawyer who is duly licensed and
authorized to provide such advice.
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NY now requires registration

May provide legal services in this


State only to the single employer
entity or its organizational affiliates
Only on matters directly related to
the attorney's work for the employer
May Not make appearances in this
State before a tribunal or engage in
any activity for which pro hac vice
admission would be required
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MRPC 5.5 Questions


p. 56-59

Q.
Q.
Q.
Q.
Q.
Q.

9
10
11
12
13
14

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Q. 2-14 NY and NJ Rules conflict


Lawyers from both NY and NJ

If disclosure is required by NJ and


forbidden by NY what law applies?
A) NJ if predominant efect there
unless lawyers reasonably believe
otherwise
B) Only NJ lawyer subject to
discipline
C) Only lawyer actually litigating in NJ
is subject to discipline
D) None face discipline because NY
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RPC 8.5 jurisdiction and


choice of law

a) You are always subject to the


disciplinary jurisdiction of
- the court that admitted you
- the disciplinary authority wherever
you provide legal services
b) the jurisdiction where the
predominant efect of the conduct
is felt
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Creating the lawyer


client relationship
Agreement
Implication
Assignment
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Formation of a Client-Lawyer Relationship


Restatement 14

(a) the lawyer manifests to the


person consent to do so; or

(b) the lawyer fails to manifest lack


of consent to do so, and the lawyer
knows or reasonably should know
that the person reasonably relies on
the lawyer to provide the services
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Is there an attorney client


relationship? pp. 61-63

Q. 2- 15 advice at a party

Q. 2-16 state senator

Q. 2-17 occasional advice re


S.E.C.

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Morris v. Margulis (Ill. 1999), p.


64-66

Attorney client relationship need not


be explicit or expressed
Money need not be paid or agreed to

the clients belief that he is

consulting a lawyer in that


capacity and his manifested
intention to seek professional
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legal advice

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Who is a client?

Q. 2-18 representing software


association

RPC 1.13

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MRPC 1.6: Confidentiality of Information


(a) A lawyer shall not reveal
information relating to the
representation of a client unless
the client gives informed
consent, the disclosure is
impliedly authorized in order to
carry out the representation or
the disclosure is permitted by
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Multi-entity organization

Absent special circumstances the


attorney for the organization
(e.g. Chamber of Commerce)
represents the Chamber, NOT the
members

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Westinghouse Elec. Corp. v. Kerr-McGee


Corp., 580 F.2d 1311 (7th Cir. 1978) p. 67

Attorney-client relationship
could arise when lay party
submitted confidential
information to lawyer with
reasonable belief that latter was
acting as former's attorney.
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Westinghouse Elec. Corp. v. Kerr-McGee


Corp., 580 F.2d 1311 (7th Cir. 1978)

Neither formal agreement nor


payment is required to form AttyClient relationship

Fiduciary relationship begins with


preliminary consultation with
prospective client

Relationship arises from consulting


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Westinghouse Elec. Corp. v. Kerr-McGee


Corp., 580 F.2d 1311 (7th Cir. 1978)

An attorney client relationship is


one of agency to which the general
rules of agency apply

arises only when the parties have


given their consent, either express or
implied
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How a Fiduciary obligation may be implied


Westinghouse Elec. Corp. v. Kerr-McGee

Preliminary consultation

Information exchange among codefendants

Insurer retains lawyer to investigate


claim

Receive privileged information


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Avoiding the
appointment
Should conscience be a ground
for refusal to serve?
Q. 2-19 p. 74
The Tennessee abortion opinin
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MRPC 6.2 - Good cause for avoiding


appointment

(a) likely to result in violation of the


RPCs or other law
(b) unreasonable financial burden on
the lawyer
(c) the client or the cause is so
repugnant to the lawyer as to be
likely to impair the client-lawyer
relationship or the lawyer's ability to
represent the client.
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Cause lawyering
I only represent people I love

Q. 2-120

p. 76

Should Judith Nathanson be free


to limit her divorce practice to
representation of women if that
is where her heart is?

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Cause lawyering

I only represent people who I


love.

- William Kunstler

Is that a permissible position for a


lawyer to take?
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