Legal Profession - V Law Firms And Asscoiates

Front 1

V Law Firms and Associates: Rule 5.1 Responsibilities Of Partners,Managers, And Supervisory Lawyers
(a) Managerial Authority
7 ✓

Back 1

1) Lawyers with 2) comparable managerial authority shall 3) make reasonable efforts to 4) ensure the firm 5) takes measures giving 6) reasonable assurance 7) that all lawyers in firm 8) conform to MRPC

Front 2

V Law Firms and Associates: Rule 5.1 Responsibilities Of Partners,Managers, And Supervisory Lawyers
(b) Direct Supervisory Authority
6 ✓

Back 2

1) A ♞ having 2) direct supervisory authority 3) over another ♞ shall 3) make reasonable efforts to 4) ensure that the other lawyer 5) conforms to MRPC.

Front 3

V Law Firms and Associates: Rule 5.1 Responsibilities Of Partners,Managers, And Supervisory Lawyers
(c) Imputed Responsibility
(1) or (2)

Back 3

A ♞ shall be responsible for another ♘ violation of MRPC if:
(1) Ratifies: the ♞ Orders or, with Knowledge of the Specific Conduct, Ratifies the conduct involved; or
(2) Fails to Mitigate: the ♞ has managerial/Supervisory authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other ♘, and Knows of the conduct at a time when its Consequences can be Avoided or Mitigated but Fails to take Reasonable Remedial Action.

Front 4

V Law Firms and Associates: Rule 5.2 Responsibilities Of A Subordinate Lawyer
(a) Personal Responsibility

Back 4

All ♞s are bound by MRPC; regardless whether ♞ acted at the direction of another.

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V Law Firms and Associates: Rule 5.2 Responsibilities Of A Subordinate Lawyer
(b) Subordinate in Accord w/ Supervisor

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(b) Not a Violation If subordinate ♞ acts in accordance with a supervisory ♘’s *reasonable resolution of an *arguable question of *professional duty.
∈ subordinate ♞ files frivolous pleading as directed by ♘ > not guilty of violation if ♞ did not know it was frivolous (mixed objective/subjective).
☯ Superior ♘ should assume responsibility for judgment on ethical duties when reasonably arguable. {∈ 1.7 CToI}

Front 6

V Law Firms and Associates: Rule 5.3 Responsibilities Regarding Nonlawyer Assistants
Nonlawyer Assistants: With respect to a nonlawyer employed/retained/associated with a lawyer: (a) Managerial Authority:

Back 6

V Law Firms and Associates: Rule 5.3 Responsibilities Regarding Nonlawyer Assistants
Nonlawyer Assistants: With respect to a nonlawyer employed/retained/associated with a lawyer: (a) Managerial Authority:

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V Law Firms and Associates: Rule 5.3 Responsibilities Regarding Nonlawyer Assistants

Nonlawyer Assistants: With respect to a nonlawyer employed/retained/associated with a lawyer: (a) Managerial Authority:
-Reasonable Steps are. . .

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⦁ Reasonable Steps: Establish internal policies and procedures designed to ensure compliance.

Front 8

V Law Firms and Associates: Rule 5.3 Responsibilities Regarding Nonlawyer Assistants
Nonlawyer Assistants: With respect to a nonlawyer employed/retained/associated with a lawyer: (b) Direct Supervisor Authority

Back 8

♞ w/ Direct Supervisory authority over nonlawyer Shall reasonably ensure compliance.

Front 9

V Law Firms and Associates: Rule 5.3 Responsibilities Regarding Nonlawyer Assistants
Nonlawyer Assistants: With respect to a nonlawyer employed/retained/associated with a lawyer: (b) Direct Supervisor Authority
-Duties of Supervising Lawyer

Back 9

⦁ ♞ has Duty to Instruct and Supervise: assistants concerning ethical aspects of their employment {∈ obligation to not disclose info relating to RP of the CL}

Front 10

V Law Firms and Associates: Rule 5.3 Responsibilities Regarding Nonlawyer Assistants
Nonlawyer Assistants: With respect to a nonlawyer employed/retained/associated with a lawyer: (c) Impute Violation to ♞

Back 10

♞ shall be responsible for conduct of nonlawyer that violates MRPC if:
1) ♞ orders o KN ratifies conduct; or 2) ♞ has sufficient managerial o direct authority + knows of the conduct + fails to prevent/mitigate/remedy.

Front 11

V Law Firms and Associates: Rule 5.3 Responsibilities Regarding Nonlawyer Assistants
Nonlawyer Assistants: With respect to a nonlawyer employed/retained/associated with a lawyer: (c) Impute Violation to ♞ - Rationale

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☯ Nonlawyer Assistants: little legal training, not subject to discipline. ∈ secretaries, investigators, law student interns, and paraprofessionals. ♞ Should be responsible for their work product.

Front 12

V Law Firms and Associates: Rule 5.4 Professional Independence Of A Lawyer
(a) Sharing Fees w/ Nonlawyers...

Back 12

(a) Share Fees w/ Nonlawyers - General Prohibition/Limited Exceptions: A lawyer or law firm SHALL NOT share legal fees with a nonlawyer. @4 exceptions:

Front 13

V Law Firms and Associates: Rule 5.4 Professional Independence Of A Lawyer
4 Exceptions to Sharing Fees with Nonlawyers

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(1) Life Estate: Agreement w/ Firm for payments to estate/person after ♞’s death.
(2) Purchase Practice: Agreement to purchase Unavailable ♘’s practice from personal representative/estate. #1.17.
(3) Compensation/Retirement Plan for lawyer/firm/nonlawyer employees. Even if based on profit-sharing agreement.
(4) Legal Fees: ♞ may share court-awarded legal fees w/ nonprofit ORG that employed/retained/recommended employment of the ♞ in the matter.

Front 14

V Law Firms and Associates: Rule 5.4 Professional Independence Of A Lawyer
(b) Quasi-Law Partnerships

Back 14

(b) Strict Prohibition against Quasi-Law Partnerships: ♞ Shall Not form partnership w/ nonlawyer if any of the partnership activities consist of practice of law.

Front 15

V Law Firms and Associates: Rule 5.4 Professional Independence Of A Lawyer
3P Influence of LCR

Back 15

(c) Limits 3P Influence: If 3P recommends/employs/pays for ♞ to render legal services to another CL ⊃ Shall Not permit 3P to direct/regulate ♞’s IPJ.

Front 16

V Law Firms and Associates: Rule 5.4 Professional Independence Of A Lawyer
Nonlawyer Interest in Law Firms
3 Elements

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(d) Limited Prohibition against Nonlawyer Interest in Law Firms: ♞ Shall Not practice w/ corporation/association authorized to practice law for profit if NonLawyer: (1) owns any interest ); or (2) is a corporate director or officer or similar position; or (3) has right to direct/control IPJ of ♞s.
@(d)does not apply to limited personal rep of estate.

Front 17

V Law Firms and Associates: Rule 5.4 Professional Independence Of A Lawyer
Rationale for 5.4 Rules

Back 17

☯ Protect ♞‘s Independent Professional Judgment. IPJ Factors: Whether non-client pays fee, salary, recommends the lawyer. Whether arrangement modifies ♞’s obligation to client.
☯ Traditional Prohibition of 3P to direct/regulate ♞’s professional judgment to another. Rule 1.8(f) (lawyer may accept compensation from a third party as long as there is no interference with the lawyer's independent professional judgment and the client gives informed consent).
5.4 (a)(2) Unavailable: deceased, disabled, or disappeared

Front 18

V Law Firms and Associates: 5.5 Unauthorized practice of law.
(a) Practice in Violation
“Violation”
“Authorized”
“Practice of Law”

Back 18

5.5(a) Prohibition. Don’t practice in violation, nor assist others do so!
⦁ “Violation” ∶ unauthorized practice by direct action o assisting other.
⦁ ♞ only practice where “authorized” (authorized is subject to rules).
⦁ Ω may authorize regular basis o limited basis for restricted purpose.
⦁[1] “Practice of Law” definition varies by jurisdiction.

Front 19

V Law Firms and Associates: 5.5 Unauthorized practice of law.
(a) Prohibition
Rationale
5.3 Factors
Permission to Advise

Back 19

⦁ ☯ : protects interests of clients, the public or the courts from unreasonable risk.
⦁[2]♞ may delegate to non-lawyers; ↳ must supervise; must be responsible regarding non-lawyer assistants (5.3)
⦁[3] May Advise ~♞ (3): If ~♞‘s employment requires knowledge of law (∈claims adjusters, financial institutions, etc.). Paraprofessionals authorized to provide law-related services. ~♞ proceeding pro se. #ORG shall not proceed pro se.

Front 20

V Law Firms and Associates: 5.5 Unauthorized practice of law.
(b) Non-Authorized Practice. 2 Elements

Back 20

5.5(b) Prohibition. Non-authorized ♞ SHN: 1) establish office o systematic/continuous presence; nor 2) pose as admitted. @5.5(c)(d)
⦁[4] Systematic and Continuous doesn’t require physical presence.

Front 21

V Law Firms and Associates: 5.5 Unauthorized practice of law.
5.5(c) Non-admitted ♞ Temporary Exceptions
4 Exceptions

Back 21

Viable lawyer may provide temporary service if (4✓E): 1) association w/ admitted authorized ♞ in matter; 2) in or RB related to matter and assisting or court ordered?; 3) ADR from matter in licensed state + don’t need Pro Hac Vice; 4) ~(c)(2) or (c)(3), but reasonably arise from ♞’s practice.
Viable Lawyer= admitted in the US + not disbarred/suspended anywhere + authorized by court.

Front 22

V Law Firms and Associates: 5.5 Unauthorized practice of law.
“Temporary Basis”
“Admitted”
Supervisor Responsibility
Pro Hac Vice

Back 22

[6] “Temporary basis” No dispositive test. May be recurring o extended, lengthy negotiation/litigation.
⦁[7] “Admitted” : authorized to practice where admitted. Excludes non-authorized, disbarred, suspended, inactive.
⦁[8] Supervisor ♞ must actively participate and share responsibilities in RP. Protects CL/public interest.
⦁[9] Limited admission by pro hac vice o informal practice of tribunal.

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V Law Firms and Associates: 5.5 Unauthorized practice of law.
Conduct in anticipation. . .
Temporary basis and assistants. . .
Alternate Dispute Resolution. . .

Back 23

⦁ [10] Permits conduct in anticipation of proceeding/hearing {∈ meetings w/ CL, interview potential witnesses, review documents} o RB expects pro hac vice admittance {take depositions}.
⦁ [11] If viable ♞ temporarily admitted > non-viable ♞’s may help him {∈ subordinate ♞ may conduct research, review documents, attend meetings w/ witnesses, in support of viable ♞}.
⦁ [12] (c)(3) permits temporary services if {related to pending/potential ADR in any jurisdiction + ADR related to ♞ practice where admitted}. @if its court-annexed/required ADR ⊃ must obtain pro hac vice admission.

Front 24

V Law Firms and Associates: 5.5 Unauthorized practice of law.
5.5(d) Non-admitted ♞ Two Exceptions

Back 24

Non-admitted may provide if:
(1) Services provided to ♞’s employer/organizational affiliates + pro hac vice ~required; or
(2) service ♞ authorized to provide by law. But not systematic/continuous.
[13] (c)(4) include both legal services and services that nonlawyers may perform but that are considered the practice of law when performed by ♞.
[16] (d)(1) authorizes services to employer/organizational affiliates. “Organizational affiliates” ∶ entities that control, are controlled by, or are under common control with the employer.

Front 25

V Law Firms and Associates: 5.5 Unauthorized practice of law.
Rationale for employer service. . .
Employer’s employees. . .
In-House counsel. . .

Back 25

☯ Generally serves employer’s INT and does not create an unreasonable risk to client o others; b/c employer is well situated to assess the ♞ qualifications and the quality of the ♞ work.
⦁ Does not authorize personal legal services to employer’s officers nor employees.
⦁ Does authorize in-house corporate ♞ o gov ♞ o ♞ necessary to advise employer.
[14] (c)(3) and (c)(4) require services arise/related to ♞ practice in a admitted jurisdiction.

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V Law Firms and Associates: 5.5 Unauthorized practice of law.
“Arise out of” or “Reasonably related to”

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“Arise out of” or “Reasonably related to” Factors: PCL or substantial contacts where ♞ admitted. Matter has aspect w/ significant relation to the jurisdiction.
⦁ CL activities/issues require it {∈ multinational corporation survey potential business sites and seek the services assessing the relative merits}. ∈ CL matters involve particular body of federal, nationally-uniform, foreign, or international law. ∈ ♞ offers pro bono for temporary need, major disaster.

Front 27

V Law Firms and Associates: 5.5 Unauthorized practice of law.
(c) and (d) Rationale

Back 27

[20] ♞ under (c) or (d) may inform CL that ♞ is not licensed to practice law in jurisdiction. {∈ issue requires knowledge of the law of jurisdiction. 1.4(b) “info for CL informed decision”}.
[21] (c) and (d) Do not authorize communications advertising legal services to prospective clients in this jurisdiction. #7.1 - 7.5 Communication on availability of services to prospective clients.

Front 28

V Law Firms and Associates: Rule 5.6 Restrictions On Right To Practice
5.6(a) Agreement Prohibition
Non-compete
Restrictions on Right to Practice

Back 28

♞ SHall Not Participate in Offering o Making : An agreement that restricts the right of a ♞ to practice after termination of CLR {∈ partnership, shareholders, operating, employment, or other similar}. @agreement about retirement benefits.
[1] (a) Prohibits law firm non-compete agreements @ retirement benefits.

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V Law Firms and Associates: Rule 5.6 Restrictions On Right To Practice

5.6(b) Settlements

Back 29

♞ SHN Participate in Offering o Making : An agreement in which a restriction on the lawyer's right to practice is part of the settlement of a client controversy.
[2] (b) Prohibits agreement to not represent others pursuant to settling claim.

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V Law Firms and Associates: Rule 5.6 Restrictions On Right To Practice
Rationale

Back 30

☯ Prevents limits on 1) CL freedom to choose ♞; & 2) ♞’s Professional autonomy.
#Does not prohibit restrictions included in terms of sale of law practice (1.17).

Front 31

V Law Firms and Associates: Rule 5.7 Responsibilities Regarding Law-Related Services
5.7(b) Definition “Law-Related Services” (“LRS”) (2 Elements)

Back 31

Services that 1) might reasonably be performed [a - in conjunction with + b - in substance are] related to provisions of legal services + 2) are not prohibited as unauthorized practice of law when provided by nonlawyer.

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V Law Firms and Associates: Rule 5.7 Responsibilities Regarding Law-Related Services
(a)(1) By Lawyer

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5.7(a)(1) By Lawyer: ALL MRPC Shall apply to ♞ if “LRS” are 1) provided by Lawyer + 2) in circumstances similar to Legal Services.

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V Law Firms and Associates: Rule 5.7 Responsibilities Regarding Law-Related Services

(a)(2) By Nonlawyer

Back 33

5.7(a)(2) By nonlawyer: ALL MRPC Shall apply to ♞ if “LRS” are provided by 1) entity controlled by the lawyer individually or with others + 2) the ♞ fails to take reasonable measures to assure that a person obtaining the law-related services knows a) that the services are not legal services + b) that the protections of the client-lawyer relationship do not exist. [1) Controlled entity + 2) Failure to inform (~law services + CLR ~exist).]

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V Law Firms and Associates: Rule 5.7 Responsibilities Regarding Law-Related Services

Rationale: Risk of Confusion

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☯ Risk of Confusion: person must know when LCR protections exist. {∈ CL may expect: protection of CL confidences, prohibitions against RP of persons w/ conflicting INT, and obligations of a ♞ to maintain professional independence}.

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V Law Firms and Associates: Rule 5.7 Responsibilities Regarding Law-Related Services

Rationale: RLS Benefits

Back 35

☯ RLS Benefit: CL’s Economic and other interest may be served by L-S and LRS. {∈ title insurance, financial planning, accounting, trust services, real estate counseling, legislative lobbying, economic analysis, social work, psychological counseling, tax preparation, and patent, medical or environmental consulting}.

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V Law Firms and Associates: Rule 5.7 Responsibilities Regarding Law-Related Services

Other rules and Substantive Law

Back 36

2] Applies to ♞ when LRS provided by firm o separate entity. Particular rules (see 8.4 misconduct) still apply even if 5.7 is not satisfied.
⦁ Substantive law may apply create DoCF, CToI, business conduct. ∈ principal and agent.

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V Law Firms and Associates: Rule 5.7 Responsibilities Regarding Law-Related Services
Nonlawyer Entity Factors

Back 37

[3] 5.7(a)(2) Entity Factors: Lawyer’s control (ability to direct operation) over entity; {∈ support staff}.
[5] ♞ Shall comply w/ 1.8(a) when refers CL (LCR exists) to controlled (alone o with others) Law-Related Service entity .

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V Law Firms and Associates: Rule 5.7 Responsibilities Regarding Law-Related Services

Reasonable Measures

Back 38

[6] Reasonable Measures: Clarity to each person about LRS; Person understands practical effect o significance of MRPC not applying. ♞ should communicate, in writing, before entering agreement, that person’s relationship to LRS Entity is not LCR. #Factors: CL sophistication (public corp ≠ unaccustomed person); service (transaction vs tax filing, investigation). Burden on ♞ to show reasonable measures. ♞ should minimize risk of confusion. Risk high when ♞ renders legal-services and LRS in same matter.

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V Law Firms and Associates: Rule 5.7 Responsibilities Regarding Law-Related Services

Legal Services and LRS too intertwined…

When lawyer allows LCR in relation to LRS. . .

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⦁ Too Intertwined: If L-S and LRS too intertwined to be distinguished ⊃ ♞ shall ensure conduct of nonlawyer (5.3) in LRS Entity complies with MRPC.
⦁ ♞ Permits LRS: If ♞ chooses to allow LCR ⊃ ♞ Shall comply with CToI (1.7 - 1.11) #especially 1.7(a)(2) and 1.8(a), (b) and (f)); + scrupulously adhere 1.6. LRS promotion Shall follow 7.1 - 7.3 (advertising and solicitation).