Professional Responsibility Bar Exam Outline

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...

Buy the full version of these notes or essay plans and more in our Oklahoma Bar Bundle Outlines.