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A. JUDICIAL REGULATION AND THE DOCTRINE OF INHERENT POWER SUCCESSION OF WALLACE, p. 42  what is the issue, and how did it arise?  when a will names an.

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1 A. JUDICIAL REGULATION AND THE DOCTRINE OF INHERENT POWER SUCCESSION OF WALLACE, p. 42  what is the issue, and how did it arise?  when a will names an executor and also designates an attorney for the estate, are the executor and the beneficiaries stuck with her?  La S Ct in 1929 said yes  Court overruled that decision in 1986 and said no  both decisions were based entirely on interpretation of the civil code, with no mention of court rules governing lawyers  Legislature sought to overturn the latter decision by statute, requiring “just cause” for the removal of a lawyer so designated  in this case, an executor challenged the statute as inconsistent with a court-adopted rule governing lawyers generally  how does the court resolve the issue?  now, a conflict is found between the statute and the court rule (which already existed in 1986 in their Code of Prof. Resp.)  the court rule wins, on constitutional grounds!

2 INHERENT JUDICIAL POWER TO REGULATE LAWYERS  What is the rationale for this claim?  Wallace: “sources”:  “the traditional inherent and essential function of lawyers as officers of the courts”  “the constitutional separation of powers”  “this court’s exclusive original jurisdiction of attorney disciplinary proceedings”  are these equally persuasive?

3  How far does the claim go?  validate regulatory acts of judiciary?  invalidate conflicting regulatory acts of other branches? (Wolfram’s critique, n. 3 p. 46 )  is this a claim of universal exemption of lawyers from application of statutes or executive regulations? Some times sounds like it, but  in Louisiana and many other states the courts will sustain a statute which is consistent with and supportive of their own regulatory positions  common example: statutes making unauthorized practice of law (defined as the courts define it) a crime  the MPRC themselves frequently refer to “other law” as potential qualifiers on a particular right or obligation – typically, that will be a law of more general application which, in the view of the courts, can be applied to lawyers without compromising their unique professional obligations INHERENT JUDICIAL POWER c’t’d

4 INHERENT POWER c’t’d  What aspects of law practice does the claim cover?  representing clients in court  private clients  government clients (prosecutors, n. 6 p. 47)  advising and representing clients outside of court  private clients  government clients (our problem, p. 42?) (n. 5 p. 47)  what arguments for excluding each of these?

5 B. FEDERAL INTERVENTION IN STATE REGULATION  Problem pp  State supreme court adopts rule limiting admission to practice to the top 20 scorers on the bar exam  Member objects to the rule on behalf of minorities, using provocative language to describe the rule and the court  objector asserts various claims against the court and its judges seeking to overturn the rule and for other kinds of relief  disciplinary action is instituted against her because of her criticism, and she asserts federal defenses in various contexts

6 Federal antitrust claims  against the court itself, based on its plenary control over the business of practicing law  What defense? Lawline, p. 50  immunity from antitrust liability, as a state actor  Where does this defense come from?  Constitutional limitations on federal regulatory power?  Statutory interpretation?

7  antitrust claims c’t’d  Against the Board of Bar Examiners, created by the court to administer the admissions process, which adopted the rule on its own initiative  Is the BBE also immune from antitrust liability? What additional facts, if any, do you need to know? Ronwin, n. 6 p. 58; Goldfarb, n. 7 p. 59  Did the court authorize the BBE to adopt rules of this character? Did it establish a clear policy to be implemented?  Did the court supervise the process of adoption?

8 Civil rights claim against judges  is there sufficient proof that the individual judges violated the civil rights of minorities?  if so, what relief is available?  damages? “judicial immunity”!  injunction against enforcing rule? yes  declaration of invalidity of rule? Yes

9 DISCIPLINARY ACTION AGAINST LAWYER  Charge filed against lawyer in the supreme court’s disciplinary procedure, based on statements made about court and judges  Lawyer now files suit in federal court against disciplinary authority, seeking injunction against enforcement of rules  Motion to dismiss the claim – what ruling? Middlesex County Ethics Commission, n. 9 p. 59: can the constitutional defense be asserted in the state proceeding? If so, abstention by federal courts pending state court decision

10 DISCIPLINARY ACTION c’t’d  Assume federal court abstains and disciplinary process continues, the First Amendment defense asserted and rejected, misconduct found and discipline recommended  now lawyer sues in federal district court to declare the findings to be inconsistent with First Amendment  motion to dismiss: what ruling? Feldman, n. 10 p. 60: lack of jurisdiction to review state court decisions!

11 FEDERAL CIVIL RIGHTS LAW  Congress enacts civil rights statute requiring state affirmative action in admissions, to achieve percentage of minority lawyer membership equal to that in general population – assume that this passes must under the federal constitution  if state supreme court refuses to comply, citing its plenary power to regulate lawyers, what ruling?  “preemption” or “supremacy”?

12 OTHER ISSUES  Lawline: What is the position of the ABA in relation to liability for the Model Rules being inconsistent with  antitrust laws?  civil rights laws?  Notes 1-4 pp 56-58: If a state supreme court adopts a unitary state bar, requiring all licensed lawyers in the state to be members, is that constitutional?


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