This is an extract of our Control Of Quality document, which we sell as part of our Professional Responsibility Outlines collection written by the top tier of NYU School Of Law students.
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09. Control of Quality
Reducing the likelihood of Professional Failure
4. A. Admission to the Bar
If a lawyer does legal work where she is not admitted, she risks violating rules against the unauthorized practice of law (UPL), which can be a crime in some places. Unauthorised presence may even occur through virtual
as technology develops more changes likely to occur
Geographical exclusion: previously state may prohibit a lawyer who live outside of the state to join its bar
now a resident of any state can seek admission to the bar of any state
Geographical restriction: Virginia granted motion admission to lawyers admitted elsewhere but only if they lived and worked full time in Virginia
motion admission = gain admission to a bar without taking its bar examination if they have practiced for 5 of the prior 7 years/ 3 of the prior 5 years
Education and examination: despite not a good way to test knowledge or ability to practice law, but challenges on the Bar examinations have been unsuccessful
Character Inquiries: inspect applicant's mental health, honesty & integrity (academic behaviour, criminal conduct), personal life (esp. financial probity), and support for the Constitution
Against: how applicant behaved in the past doesn't necessary suggest how he will behave as a lawyer
For: clients reasonably believe that the state has deemed the lawyer worthy of their trust"The Racist Bar Applicant" (506)
MH is avowed racist, and he was denied admission to the Bar
Hard to predict from M.H.'s view whether he will violate a disciplinary rule
What if M.H. had adopted and expressed his views after he had already been admitted to the bar? Do you think he should be removed or otherwise disciplined for them?
o Conduct that keep you out the bar would not necessarily get you kicked out of the profession
But also, lawyers gave up some rights (e.g. freedom of speech) when they enter the profession
How about an applicant who believes and has argued that homosexuality is a sin and that gay men and lesbians should be imprisoned?"Borrowing from the Moot Court Board" (506)
In re Mustafa (1993)
Facts: JM wrote cheques to himself for personal expenses from school's moot court program which he co-chaired. It was found out and JM was turned in, while he confessed to the dean the same day.
Committee found that JM always intended to repay the sums taken from the fund and had made full restitution before there was any threatened action by the law school. Committee recommended he be admitted
Law: in order to gain admission to the Bar, an applicant must demonstrate by clear and convincing evidence that he possesses good moral character and general fitness to practice law at the time of admission JM failed to establish that he had good moral character required for admission to the Bar,
While criminal conduct has traditionally excluded Bar applicants, a felony conviction automatically disqualifies an applicant in only 8 jurisdictions. May consider things like nature of crime, how long ago it was, conduct of applicant since then
How should the fact that JM's conduct occurred while he was in law school be weighed?
o JM should be old enough to know, know the legal consequences
Should he be admitted without delay? If with a delay, then for how long? Never?
o Whether motivation matters: firm partners and profs know why he took the money out - e.g.
for a sick relative/ friend who had no money to pay bail/ friend about to be evicted from home.
but any lawyer who did this would be disbarred, regardless of their motives
1 Whether candor given to the letter writers: how much money he took, how many % did he take from the program, background of JM, whether it is a one-off event or trend
If you think J.M. should be admitted (with or without a delay), what if any burden of proof should he have to satisfy the court that he does not present a risk?
o Lawyers are often fiduciaries for their client's money
Will he do it again in the future?
o Is JM going to a big firm which have system in place to protect against lawyer stealing client's money?
Note: real case JM later called to CA but stole money from client disbarred
How do we use past behaviour to decide on future conduct?
Good Moral Character - From In Re Glass (508)
• Facts: After discovery of his many misdeeds (dishonest and fabricate material for more than 40 articles), Glass ended his journalism career and switched to law. Glass eventually applied to the California Bar and was admitted by Review Department of the State Bar Court.
• Law: Good moral character includes
• "qualities of honesty, fairness, candor, trustworthiness, observance of fiduciary responsibility, respect for and obedience to the law, and respect for the rights of others and the judicial process"
• "Persons of good character . . . do not commit acts or crimes involving moral turpitude — a concept that embraces a wide range of deceitful and depraved behavior."
• A lawyer's good moral character is essential for the protection of clients and for the proper functioning of the judicial system itself…
• courts are required to evaluate the seriousness of past misconduct and assess the risk that the applicant will if admitted behave similarly in how she treats clients
• Analysis: Glass fabricated material to hurt others, intentionally and repeatedly delude the public, violated ethical structures, reprehensible - took place while he was pursuing a law degree and license to practice law,
directed his effort at advancing his own career and financial and emotional well-being. Court duty is to protect the public and maintain the integrity and high standards of the profession
• California Court held: applicant failed to establish his rehabilitation and current fitness.
• The risk should be borne by the applicant and not the general public
Deborah Rhode criticized: poor signal to applicants who wish to turn their lives around. The question is not only whether Glass will favor his own interests over those of clients and other participants in the legal system. Can
Glass be redeemed?
o But: admitting someone like Glass will harm the public's trust in the courts
Alternatives? E.g. a disclosure regime would not be helpful as the public would not know how to utilise the system/ have no knowledge
In cases like Glass, the courts are required to evaluate the seriousness of past misconduct and assess the risk that the applicant will if admitted behave similarly in how she treats clients.
o Journalists also have their set of code of ethics, which was not followed by Glass when he was a journalist
Or do you agree with this sentiment: "Past dishonesty does not mean that a person will be dishonest as a lawyer. Excluding an applicant because of what she may thereafter do as a lawyer, but may not do, is wrong. If after admission she engages in dishonest conduct, she can then be disbarred."
Does it affect you answer if you assume that Glass will never again be employed by a reputable publication?
If you think Glass should be allowed to reapply, after what period of time? What burden of proof should he have?
Look at the Court's reasoning on page 511. Would or should it have made a difference if Glass had directed his energies toward "serving others in the community"? For example, if he serves the poor for the next five years,
should he be admitted? What would this show? Contrition?
2 Frequently cited Grounds for Delaying or Denying Admission to the Bar
1. Criminal Conduct a. Whether or not it has led to conviction
2. Lack of candor in the application process/ misconduct on the bar exam a. Consciously omitting reapplication conducts (that can lead to exclusion/delay)
3. Dishonesty or lack of integrity in Legal academic settings a. Cheating in LSAT or plagiarizing scholarly article submitted for publication
4. Mental Health a. [appears to have changed the rules = to protect bar applicants]
b. Only 7 states make no inquiry into mental health, most applicant wont reveal
5. Financial Probity a. Student loans, paying bills and taxes,
b. Dishonesty, neglect, abuse of trust in business or personal financial matters may predict lack of probity as a lawyer
6. Unauthorised practice of law a. E.g. all law work should be done under supervision of a lawyer or a student practice order
Admission in a Federal System
- Federal trial courts routinely admit applicants who are members of the bar of the highest court of the state in which that federal court is located
- Many federal courts will admit lawyers who are admitted in other states
- Federal court have their own pro hac vice (temporary) admission rules
- Reserve right to conduct character inquiries and rarely, decline to admit lawyer who has been admitted in the state in which the federal court sits Re GLS
B. Transient Lawyers and Multijurisdictional firms: local interests confront a national bar
• This is an issue in the US because it has a federal system in which the licensing of lawyers is done locally (in each state) but clients have problems that cross state lines
• Client may seek advice of an out-of-state lawyer
• When an out-of-state lawyer is guilty of UPL in another state - transactional/ arbitration lawyers are at greater risk than litigators (who can request the judge to grant them temporary admission for a particular case)
Forcing courts to find a solution to the tension between the fact that lawyers are admitted in a particular jurisdiction and lawyers' practice across jurisdictions boarders due to modern technology
Specialization is the new de facto licensing mechanism: NY lawyer expert in e.g. construction law (heavily depended on State law), cannot represent client in Ohio
State Law in US becoming more uniform: expert lawyer in one place is more skilled than a licensed lawyer in other place that is not expert in that area
So the question is: What legal work can a lawyer admitted in one state (the "home" state) do "in" another state
(the "host" state), where she is not admitted, without violating the host state's rules against unauthorized practice of law (UPL)?
• The key word is "in" [practice of law in]
• When is work "in" a state (or country)?
Unclear: whether UPL if regularly phone/ email advice to client in the host jurisdiction; whether lawyer need to travel physically
But State court shows no interest in decentralizing the American system for regulating lawyers
3 Service other than litigation
Birbrower v Superior Court (523)
• Facts: NY lawyer requested by NY client to represent its sister co. in California arbitration didn't take place and client sue the lawyer, alleging the firm could not collect its fee because of its unauthorized practice of law
violation of CA public policy
• Lawyer's 'extensive' presence in CA:
1. 3 trips to CA = practising in CA
2. Arbitration in CA/ representation is in CA
3. Client is a CA firm
4. Fee agreement between firm and client was governed by CA law
• Advising a client and negotiating a settlement agreement in CA without a license constitutes the unauthorized practice of law and no fee may be collected to the extent that the fee was for those services
• Held: What lawyer did in NY was virtually in CA by phone, fax, email and satellites (or other modern technological means)
• Can only get paid for work done in NY AND not virtually in CA
• E.g. can be paid for the research on CA law in NY; but cannot get paid for email correspondence with client about the research on CA law (as it would be virtually in CA)
• Even with an affiliate with a CA lawyer would not save you no safe harbor
• The case that stunned the profession
• What the lawyer did was very common in this highly mobile age
• Lawyer regulators in CA were unconcerned with the form's conduct
• Client was nonetheless permitted to use an unauthorized law practice claim to avoid paying a fee
• Court held in contrary to what many lawyers believed, that the lawyers could not have protected themselves by associating with local counsel
• Lawyers would be guilty of UPL in CA through virtual presence there through technology,
even while at the time they are physically in NY
• Tension between inter-jurisdictional practice and the need to have a state-regulated bar
• Lawyers are licensed by States, but they are increasingly practicing nationally and internationally how to reconcile this with local admission by state court
• Bigger firms are less burdened by this problem as they may have officers within different States, while small firms may only have one office
• Client consent would not solve the problem as it is a matter of public policy.
• Lawyer cannot be in CA whiteout violating CA law cannot get paid for any work physically/ virtually did in CA
• What is the solution to the problem of locally admitted lawyers practicing "in" other states? What is the solution when the work crosses national borders?
• ABA appointed the Multi-jurisdictional Practice Commission amended Rule 5.5 to create 4 safe harbors for lawyers who cross the state lines temporarily to serve clients in host states
• (a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.
• (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; or
• (2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.
• (c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that:
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