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Pro Res Maintaining the Integrity of the Profession

Terms in this set (30)

A recent law school graduate has applied for admission to the bar in her home jurisdiction. The application forms ask applicants to list all arrests and convictions for misdemeanors or felonies. The graduate had two minor convictions for underage drinking or possession of alcohol when she was in high school, eight years earlier, and her attorney told her at the time that the state would expunge her records when she turned 18, meaning she would never have to report the convictions. In addition, she had one arrest in college where a shop owner mistakenly thought she was a shoplifter who had visited the store the day before, but the district attorney had not pressed charges once it became obvious that this was a case of misidentification. On her bar application, the applicant did not report the convictions from high school or the arrest from college, because she thought the earlier convictions were no longer on her record, and she had cleared herself of all wrongdoing after the arrest, resulting in dropped charges. Nevertheless, the state bar discovered the convictions and arrest during its comprehensive criminal background check, which it conducts for all applicants. The state bar admissions board denied her application, and filed a grievance against the applicant for making a false statement on her application. Did the applicant violate the Model Rules of Professional Conduct in this case?
Yes, because she knowingly made a false statement of material fact on her application for admission to the state bar.
An attorney agreed to write a recommendation letter for admission to the bar on behalf of the law student who had worked for him part-time throughout law school. The student had behaved appropriately, and in compliance with the ethical rules for lawyers and law firms, at all times during her employment. On one occasion, the student intern had confided in the attorney that she had faced academic discipline for plagiarism on a law school seminar paper, and that she was very ashamed of herself about the incident and had accepted a failing grade in the class. She took an overload of courses the following semester to make up for the lost credits from the course she failed. The attorney did not mention this incident at all in his "character and fitness" recommendation to the state bar, because he felt it was out of character and did not represent the way the student normally behaved at the workplace. He also assumed the student would report it herself or that the bar would inquire about the failing grade on her law school transcript. The bar admissions board eventually learned about the incident only from the law school administration, which turned over the student's disciplinary records. Could the attorney who wrote the favorable recommendation be subject to discipline for filing to mention or address the incident?
Yes, because he did not disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter in connection with an admission to the state bar.
An attorney faced a grievance over a client complaint regarding his neglect of the client's matter. The attorney knew that he had never actually agreed to represent the client, but instead had met with the client once, determined that he had a conflict of interest, and he had refused to represent the potential client by both oral and written communication. The client failed to hire another lawyer, and mistakenly (unreasonably) believed that the attorney she had met with was, in fact, representing her. Because he knew the case was without merit, he did not respond to the state bar when the disciplinary authorities requested a formal response from him. Ultimately, the client withdrew her complaint and the disciplinary authorities dismissed the grievance as frivolous. The board then commenced disciplinary proceedings against the attorney for failing to respond to its requests in the case it had dismissed. Was the attorney's refusal to respond permissible in this case?
No, because in connection with a disciplinary matter, a lawyer must not knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority.
An attorney agreed to represent an applicant to the state bar - a recent law school graduate - in her hearing before the state bar admissions board, which had tentatively denied her application for making false statements on her bar application. The board formally requests the applicant and her attorney make full disclosures about the events in question to help resolve the matter. The client (bar applicant) explains the entire situation to her attorney, including some self-incriminatory information - it turned out that the applicant's misbehavior had been much more serious than the board was aware. The attorney did not disclose this new information, which would have made it much clearer to the board that the applicant lacked the character and fitness to practice law. Could the attorney be subject to discipline for this action?
No, because a lawyer representing an applicant for admission to the bar, or representing a lawyer who is the subject of a disciplinary inquiry or proceeding, is governed by the rules applicable to the client-lawyer relationship, including the duty of confidentiality.
An attorney faced a disciplinary action over accusations that she had neglected a client matter and had failed to communicate adequately with the client. The state disciplinary authority requested a written account of her version of what happened, and asked her ten or twelve probing questions during the hearing. At the conclusion of the hearing, the disciplinary tribunal decided that the client complaint was without merit and cleared the attorney of all charges in that regard. At the same time, it also concluded that the attorney had answered one question during the hearing untruthfully, and had made a minor misrepresentation regarding dates in her written statement to the board. The tribunal therefore filed a separate grievance against the attorney for these misrepresentations. Could the attorney be subject to discipline for incidental misrepresentations to the grievance committee if the same committee had decided that the underlying case had no merit and issued a dismissal?
Yes, because it is a separate professional offense for a lawyer to knowingly make a misrepresentation or omission in connection with a disciplinary investigation of the lawyer's own conduct.
An attorney faced disciplinary action over a client grievance. The disciplinary tribunal asked the attorney several probing questions about her handling of client funds. The attorney actually used some client funds to pay off a gambling debt, so she is less worried about a temporary suspension of her law license than about potential criminal charges for embezzlement. The attorney, therefore, invokes her Fifth Amendment privilege against self-incrimination and refuses to answer the questions. The disciplinary tribunal then determines that it lacks substantial evidence that the attorney mishandled client funds, but commences disciplinary proceedings over the attorney's refusal to answer some of its questions. Could the attorney be subject to discipline for refusing to answer the questions in this scenario?
No, because the rules requiring attorney candor to disciplinary authorities are subject to the provisions of the Fifth Amendment of the United States Constitution and corresponding provisions of state constitutions.
An attorney faced disciplinary action over a client grievance. The disciplinary tribunal asked the attorney several probing questions about her handling of client funds. The attorney actually used some client funds to pay off a gambling debt, so she is less worried about a temporary suspension of her law license than about potential criminal charges for embezzlement. The attorney, therefore, simply refuses to answer the questions, without offering any explanation. The disciplinary tribunal then determines that it lacks substantial evidence that the attorney mishandled client funds, but commences disciplinary proceedings over the attorney's refusal to answer some of its questions. The attorney now claims she was merely exercising her Fifth Amendment right to refrain from self-incriminating statements. Could the attorney be subject to discipline for refusing to answer the questions in this scenario?
Yes, a person relying on such constitution protections in response to a question must do so openly and not use the right of nondisclosure as a justification afterward for failure to comply with the rules requiring disclosures to the disciplinary authorities.
An attorney was upset when he lost a high-stakes bench trial. When friends and acquaintances asked him about it in the following weeks, he would bitterly complain that the judge must have received a bribe from the opposing party, because there was no way that a reasonable judge could have ruled against the attorney's own client, given the evidence in the case. The attorney has no reason to think that the judge accepted a bribe except that he was shocked when he lost the case. Could the attorney be subject to discipline for making such comments?
Yes, because a lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.
In Texas, state trial judges are elected by popular vote. A well-known liberal progressive judge is running for reelection. An attorney who is a staunch conservative is campaigning for the opposing candidate from the other party. At a campaign ally, the attorney declares that the liberal judge (seeking reelection) is completely unqualified and incompetent to serve in the judiciary, and that he is an activist judge who uses his court to push a particular political and social agenda. The judge graduated from a prestigious law school, was formerly a partner at a large law firm, and is active in the state bar. He does, however, give consistently lenient sentences to criminal defendants who are black or Hispanic, and has always ruled in favor of unions when he adjudicated cases involving collective bargaining agreements. The judge learns of these remarks by the attorney and files a grievance. Could the attorney be subject to discipline?
Yes, because a lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.
A would-be judge asked his former law school classmate, a practicing lawyer, to write a recommendation letter for him as part of his application and vetting process for a judicial appointment. The attorney obliged and wrote a glowing recommendation, entirely favorable, even though he personally knew that his friend (the one seeking to be a judge) was an alcoholic. Was is proper for the attorney to write such a letter?
No, because assessments by lawyers are relied on in evaluating the professional or personal fitness of persons being considered for appointment to judicial office, so expressing honest and candid opinions on such matters contributes to improving the administration of justice.
An attorney discovers that a partner at his own firm has violated the Rules of Professional Conduct by failing to disclose adverse binding precedent to a tribunal, and by depositing client funds into his own bank account instead of a client trust account. Does the attorney have a duty to report the partner from his own firm to the state bar disciplinary authority?
Yes, because a lawyer who knows of a violation of the Rules that raises serious questions about the other attorney's honesty must report it to the state disciplinary authority.
An attorney discovers that another lawyer has been stealing clients' funds, but he cannot prove it, as he learned about it from another party who was involved and who has since disappeared. He has some evidence, but not enough to prove that the other lawyer stole the clients' funds. When he confronted the other lawyer, the other lawyer admitted it privately but said he would deny it if there was any attempt to expose the matter. Does the attorney who knows about the violation, but could probably never prove it, have a duty to report the violation to the state disciplinary authority?
Yes, because the duty to report misconduct depends upon the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware.
A trial attorney agreed to represent a client in a high profile criminal case, and asked at the outset for the client to give the attorney literary rights to write a book or screenplay about the case after its conclusion, in lieu of part of the attorney's normal fees. The client refused, so the attorney represented the client for his normal hourly rate. The evidence in the case was very unfavorable to the client, so the trial ended in a conviction and the client hired a different lawyer to represent him on appeal. At some point, the client told his appellate lawyer that the trial attorney had requested literary rights in the case at the outset of the representation. The appellate lawyer believed this was a violation of the Rules of Professional Conduct, and reported the trial attorney to the state disciplinary authority. When disciplinary proceedings commenced, the trial attorney maintained that he had not actually violated the Rules of Professional conduct, because the client had refused to grant him literary rights related to the case. He maintained that even if he had attempted to violate the Rules, he was unable to achieve his goals and therefore no actual violation occurred. Is the trial attorney correct?
No, because under the Rules, even an attempt to violate the Rules of Professional Conduct independently constitutes professional misconduct.
A trial attorney knew he cannot have ex parte communications with the judge in his case, but he wanted to explain a point about the case to the judge without opposing counsel present. The attorney happened to attend an alumni reception at his law school, and one of his former classmates mentioned to him that the she would be having lunch with the judge the next day. The attorney explained his case to his former classmate and asked her to explain a particular point to the judge privately during the lunch, and she agreed to do it as a favor. Could the attorney be subject to discipline in this case?
Yes, because it is professional misconduct for a lawyer to violate or attempt to violate the Rules of Professional Conduct through the acts of another.
A lawyer faced prosecution for failing to file tax returns over a five-year period. The attorney worked for a legal aid clinic and never charged clients any legal fees, as the clinic provided free representation to the indigent. The attorney received a modest salary from the legal aid clinic, the funds for which came from the state's IOLTA program and from a federal Legal Services Corporation (LSC) grant. Could the attorney face suspension of his license to practice law?
Yes, because it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer's honesty.
An attorney was an immigrant from a country that permits polygamy - men can have up to four wives. The attorney had two wives, which his religion permitted, as did the laws of his homeland. Nevertheless, his multiple marriages constituted bigamy in the American jurisdiction where he practiced law, and eventually a court convicted him of bigamy and imposed a fine. Could the attorney be subject to professional discipline for committing this illegal act?
No, because offenses concerning personal morality, such as bigamy and comparable offenses, have no specific connection to fitness for the practice of law.
After practicing for two years, an attorney enrolled in an LL.M. program at a local law school, taking night classes. During his second semester, the attorney faced academic discipline for plagiarism in a seminar paper; the school permitted him to graduate, but he received a failing grade in the class and had to make up the credits with another course. As the attorney already has a license to practice law in the jurisdiction, could he be subject to discipline if the state disciplinary authorities learned of the plagiarism?
Yes, because it is professional misconduct for an attorney to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.
While cross-examining a Hispanic witness during a trial, a defense attorney grew frustrated at the witnesses' evasive answers, and finally asked the witness if "his people" or others "in his community" regularly lie under oath on the witness stand. The prosecutor immediately objected and the judge sustained the objection, so the attorney withdrew the question. The witness then stated that he did not feel offended by the question because he understood that the lawyer was simply ignorant and relying on stereotypes. Three of the jurors were also Hispanic. Could the attorney be subject to discipline for this question?
Yes, because it is professional misconduct for a lawyer in the course of representing a client to say things that manifest bias or prejudice based upon race or national origin.
Partly out of a desire to impress a potential client during an initial consultation, and partly to reassure a potential client who was visibly upset about her pending criminal charges, the attorney said that he knew the judge in the case. He explained that they were close friends, former law school classmates, and that he could talk to the judge privately and "take care of the problem." Is it permissible for a lawyer to make such a claim to a potential client?
No, because it is professional misconduct for a lawyer to state or imply an ability to influence improperly a judge or to achieve results by means that violate the Rules of Professional Conduct or other law.
A judge asks the two lawyers in a case to help him conduct some first-hand investigation of the facts. At the judge's request, the plaintiff's lawyer and the defendant's lawyer together drive the judge to the location where the accident occurred that became the subject of the litigation, and allowed the judge to take measurements and photographs of the scene from different angles. They also accompanied the judge to interview several witnesses at their homes, off the record. Both lawyers felt awkward about this, but they were afraid to contradict or confront the judge, out of respect for the judicial office. Could the lawyers be subject to discipline for this conduct?
Yes, because it is professional misconduct for a lawyer to assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.
An attorney had a license to practice law in two jurisdictions - his home state where he lived and had his main office, and a neighboring state where he represented several clients each year. The attorney committed serious professional misconduct in his home
state, and received a public reprimand from the state disciplinary authorities. All of the conduct took place in his home state, the client resided in the state, and the
representation took place entirely within his home state. The lawyer's conduct would have violated the rules in either of the jurisdictions where he had a license to practice law, because it involved commingling client funds with his own money, and the states had nearly identical rules concerning this activity. After the attorney received a public reprimand in his home state, where the misconduct occurred, the state bar disciplinary authority in the neighboring state (where he also practiced) then commenced disciplinary proceedings against him as well. Ultimately, the neighboring state bar suspended his license for six months in that state, a much more severe sanction than
the public reprimand he received in his home state, where the misconduct actually occurred. The attorney claims that the neighboring state bar has no jurisdiction over conduct that occurred entirely outside of the state. He also objects that the second punishment raises double jeopardy concerns. Is the attorney correct?
No, because a lawyer may be subject to the disciplinary authority of two jurisdictions for the same conduct, and may receive different sanctions in each state.
An attorney practices law in two adjacent states, as he has a license to practice in each. He lives near the border and can easily serve clients in each jurisdiction. The two states have different rules about attorney disclosures of confidential client information - one state requires disclosures of client confidences whenever necessary to save a third party from death or serious bodily injury, while the other state forbids disclosures even under these circumstances. The attorney did indeed disclose confidential client information in order to save someone's life (the client was planning a murder and the attorney notified the authorities and warned the potential victim), but this occurred in the state that forbids such disclosures under these circumstances. The client files a grievance against the attorney in both states, and both state bars commence disciplinary proceedings over the same incident. The state bar of the other state, which would have required disclosure in this situation under its own rules, nevertheless reprimands the attorney for making the disclosure in violation of the rules in the state where the incident occurred. The attorney objects that the state cannot impose a sanction on him for conduct that the state's rules would have required. Is the state bar correct?
Yes, the state bar should apply the rules of the jurisdiction in which the lawyer's conduct occurred.
An attorney was representing a client in a probate matter. Nearly all of the representation occurred within the attorney's home state, where the client also lived. One asset of the probated estate, however, was an account receivable from a debtor in a neighboring state; the matter was already the subject of pending contract litigation in that state. The attorney filed a pro hac vice appearance in the neighboring state, and traveled there to represent his client in the contract matter, which was ancillary to the probate matter in his home state. During the proceedings, the lawyer committed an act that constituted a violation of the ethical rules in his home state, but not in the neighboring state where he was appearing in a proceeding; the states had different rules in this regard. Could the attorney be subject to discipline in his home state for violating its rules before a tribunal in the neighboring state?
No, because whenever a lawyer's conduct relates to a proceeding pending before a tribunal, the lawyer shall be subject only to the rules of the jurisdiction in which the tribunal sits.
In Texas, which entity determines what constitutes the unauthorized practice of law in this state?
The Unauthorized Practice of Law Commission (UPC), subject to review by the Texas courts.
Attorney has a license to practice law in New York, but she is living in Texas and is practicing law in Texas out of her own firm office in Huntsville. What is the position of state bar regarding this situation?
The jurisdiction of the State Bar of Texas does not permit it to take disciplinary action for any violation of the Texas Disciplinary Rules against any person who is not licensed to practice law in Texas or who is not specially admitted by a Texas court for a particular proceeding.
What is the role of the Board of Disciplinary Appeals in Texas?
If an attorney facing a grievance does not elect a trial in district court, the judgment of an evidentiary panel may be appealed to the Board of Disciplinary Appeals, and an appeal from the Board of Disciplinary Appeals may be taken to the Supreme Court of Texas.
In Texas, an attorney facing discipline can elect whether to have his complaint tried before an evidentiary panel or in district court. Which of the following best describes the attorney's tradeoff in making this election decision?
The lowest form of sanction, a private reprimand, is available only if the complaint is before an evidentiary panel; but a jury is available only in district court, as are many of the evidentiary exclusions and procedural protections of court adjudications.
Which of the following best describes the first five steps, in order, of the Texas disciplinary process?
Filing of grievance with the Office of Chief Disciplinary Counsel, Classification, Response, Just Cause Determination, Election of Forum.
Which of the following is NOT one of the most common alleged violations among grievances filed against attorneys in Texas?
Conflict of interest
Of all the grievances filed against Texas attorneys each year, what are the most common alleged violations?
Neglect, failure to communicate, and improper behavior surrounding withdrawal or termination of representation.
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