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. 48-9  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?