1. Unit 5 Midterm Review

2. What are some of the components of the ABA?

3. A voluntary organization No authority to discipline Generated the Model Rules

4. What are the requirements for attorney licensure?

5. Education - Most jurisdictions require a Juris Doctor (JD) degree for lawyers, A bar examination contents vary by state have a practical component, and Fitness of character

6. The Model Rules Are they binding? Do they have to be adopted by the state? Do they vary by state? Do Attorneys and their support staff have to follow, comply the rules? If the staff does not follow the rules, can attorney can be held responsible for the violation? Paralegal and staff discipline is up to who?

7. No Yes Attorney

8. An attorney’s obligations include the following:

9.  Duty of integrity  Duty to not practice law without a license  Duty of zealous representation within the bounds of the law  Duty to be competent

10.  Duty of confidentiality  Duty of loyalty  Duty to protect the public  Duty to make legal services available at an affordable price

11. What are various sanctions/punishments against attorney’s?

12. Reprimand/Censure/Reproval Public or private Disbarment Suspension Issued by state not the ABA

13. Licensure Attorneys are licensed Paralegals are not required to be Discipline by the regulatory body is against the attorney, not the paralegal Components of the Attorney license Education Exam – practical component Screening for moral character

14. Liability for violation of Rules Violation does not provide basis for civil suit Civil liability does not mean discipline UPL When a party is not licensed may commit UPL An attorney can commit UPL by practicing in another jurisdiction. Practice must be limited to state for which attorney is licensed. Paralegals and laypeople can commit UPL Problem is that we have no universal definition of the practice of law.

15. Elements: Providing an opinion (such as applying facts to the law), area traditionally practiced by attorneys, commonly understood to involve the practice, appearance in court, signing pleadings, drafting pleadings for a non-lawyer, appearance in court Appearance before an administrative agency is different, as federal agencies are not the same as a state agency. Federal agency can permit a non-attorney to assist others. A business cannot represent itself through its owner It is not UPL to represent yourself It is not UPL to help a person fill in a form Selection of a form can be UPL

16. Paralegals can Act as a conduit to provide information for the attorney Interview clients Draft pleadings for the attorney Advertise so long as the advertisement is not misleading and complies with the laws of the state Can answer general questions of fact and law, but cannot apply the legal knowledge to facts

17. Attorney discipline can come for such things as : Violating the rules Breaching confidentiality Conflicts of interest Taking clients funds Sharing fees with non-lawyers Lack of diligence The actions of the paralegals and support staff

18. Describe the disciplinary system

19. 1.An office of disciplinary counsel that evaluates the complaint to see if it is something that is within the jurisdiction of this lawyer-discipline system 2.A hearing officer or a panel that hears the disciplinary counsel and the lawyer present their versions of the facts.

20. 3.A statewide disciplinary board that reviews the report of the hearing officer or panel and either dismisses the case or recommends sanctions. 4.The state’s highest court. This is the ultimate decision maker in discipline cases. It imposes the more severe sanctions such as suspension or disbarment.

21. Paralegals need to Understand and comply with the rules Identify themselves and their role

22. Paralegals cannot Sign pleadings Provide legal opinions Conduct or even attend a deposition without the attorney Sign the pleading for the attorney Solicit clients Prepare pleadings for the non-attorney

23. What’s the difference??? Work Product Confidentiality Attorney-Client Privilege

24. Confidentiality is broader. Need not be personal information Attorney client privilege is not limited to matters directly between the attorney and the client, but the information must come from the client It lasts beyond the completion of the case Does not end with the death of the client Confidentiality is a disciplinary rule Attorney client privilege is an evidentiary rule Work Product is for matters in preparation for trial

25. The protections do have limits Information may be shared in the need to know circle Even the name of the client you are representing is confidential

26. What Exceptions allow disclosure?? To protect others from imminent harm The harm does not need to be physical but must be serious The exceptions for attorney client privileged material is far more limited Client authorization as it does not belong to the attorney, the firm or the state Protections belong to the client not the attorney

27. Work product examples Research memoranda, Witness interviews, and Notes resulting from other investigation.

28. When is there truly a conflict of interest??

29. If it conflicts with a former client in a similar or related matter If attorney cannot adequately represent client Likely for the attorney or member of the legal staff to be called to testify If it conflicts with a current client Lawyer has a financial interest in client Personal relationship with client

30. What about business relationships??

31. Can cause a conflict of interest Is allowed but need independent attorney Like all waivers should be disclosed and authorized in written form Make a purchase from a client is a business relationship and should be avoided. It will have strict scrutiny and would require independent counsel to advice and must be at fair value.

32. Pure Conflict Examples Seller and Purchaser; Insured and Insurer; Husband and wife in matrimonial proceedings; Debtor and Creditor; Adverse clients in unrelated actions; Representing corporations and their officers; and Directors and Shareholders

33. With all the work I have done for the client, surely I can accept gifts right??

34. Should not be solicited Small Gifts are permitted of nominal value, such as cookies for the holidays Limitations apply to lawyers and staff Cannot take if it causes a conflict

35. How can I prevent conflicts??

36. Ethical Walls Conflict checks Training Screening before hiring

37. Conflicts Some can be waived Not all conflicts can be waived To waive need disclosure, should be in writing May need to have client independently represented Consent may not be sufficient

38. If believe you have a conflict Stop representation Address issue Seek legal opinion from regulatory body e.g. Bar ethics panel A title scheme when it comes to paralegals is the state defining the requirements to be a paralegal such as education and training