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LEGAL PROFESSION

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					LEGAL PROFESSION
    Organization & Control
State based – federal only for courts
Judges make the rules
 Reject laissez faire
 Heavily regulated monopoly – profession
Most states, official (integrated) bar
 Limited power to act on its own
Many voluntary bars – ABA – local - specialities
                Bar Admission
•   ABA Accredited law school
•   Bar exam – individual state & multi-state
•   Character review –
•   Some allow waiver
•   Most used to require residence
•   No separation of barristers & solicitors
•   Specialties in practice – not judges
•   Mandatory CLE – no character re-review
•   Other end – discipline for violating ethics rules
    Unauthorized Practice of Law
               (UPL)
• Defines the extent of the bar’s monopoly
• Represent others in court
• Help with uncontested divorce
• Write contracts
• Competitors in real estate, accounting &
  financial planning
• Protect public vs protect pocketbook
• Out of state & foreign lawyers also
• Right to self-representation - civil & criminal
    Rules of Professional Conduct
•   Now in 4th version
•   ABA drafts & states adopt –largely –
•   Bar committee first & then state high court
•   Ethics now required course & on bar exam
•   Ethics committees give advice
•   Small & large changes made
•   Complicated by different rules in each
    state with many interstate transactions
          Disciplinary Process
•   Licensed by state – lose license by state
•   Range of sanctions
•   Bar dues fund process –
•   Staff lawyers & investigators
•   Typically, committee hears & recommends
•   Increasingly non-lawyers involved
•   Major issue is the degree of openness
             Other Remedies
•   Legal malpractice claims
•   Breach of fiduciary duties
•   Sanctions for frivolous litigation
•   Client security fund
•   Fee dispute & malpractice arbitration
             Fee Structures
•   American Rule & exceptions
•   Hourly rates –
•   Fixed charge for job
•   Both of these have pluses & minuses
          Contingency Fee
• Most controversial & most unusual
• Not in criminal cases or divorce
• Some states maximum percentage
• Sliding scale is common
• Percentage can be before or after costs
      Lawyers can advance & client repay
      Some places, lawyers can pay
• In theory, can negotiate fees
    Reasons for Contingency Fees
• Most often used in personal injury cases
      Theory is to align interest of lawyer & client
•   Most clients cannot afford lawyer
•   Closely tied to American rule
•   Increasingly in large commercial cases
•   Partial contingent fee
•   Some defendants starting to use it
    Objections to Contingent Fees
•   Some cases, big fee for little work
•   Some cases, end up with more than client
•   Some say, incentive to bring weak cases
•   Alignment with client is less than perfect
•   All about assuming risk & offsetting losses
•   Result is that some make most money
              Adversary System
• All aspects of practice, not just litigation
• No obligation to inform opponent
      Is a duty to inform court of controlling authority
      Special duties of prosecutor
• Can’t lie or destroy documents
• Can’t let client do either
• Duty to argue for client even if wrong
• Make best argument possible, especially in
  criminal cases
• Judge is neutral & does not investigate
                 Confidentiality
• Basic rule, say nothing about your client
• Source of information not relevant
• Can share with others working with you

•   Attorney client information – subcategory
•   Exchanges to obtain legal advice
•   Immune from court orders also
•   Special protections to aid in representation
    Even extends to dead client & criminal case
    Corporations & governments have it also
     Confidentiality - Exceptions
•   Criminal activity – ongoing, not past
•   Fee or other dispute with client
•   Lawyer charged with crime or disciplined
•   Collect a fee
•   Recent, prevent death or serious harm
       Some states more – permissive only
        Duty of Undivided Loyalty
               Basic Rules
• Necessary to fulfill the duty of vigorous
  representation
• Can’t represent both sides of case
• Example of uncontested divorce
   – Parties agree to have one lawyer – why
   – Should they be allowed to waive conflict
   – But lawyer must police independently
   Applies to all lawyers in the law firm
   – Not just on this matter – any current case
• Prohibited transactions – no waivers
              Duty of Loyalty
           Prior Representation
•   Used to represent client & now sue
•   How long does loyalty continue?
•   What reasons for allow or forbid suit?
•   What might continue beyond loyalty?
•   Compound, other lawyer & prior matter
          Types of Law Practice:
               Law Firms
• More than 1 million lawyers
• Not all practice law
• Much of what is done by lawyers here is done by non-
  lawyers elsewhere
• Majority practice solo – share offices
• Firms, all sizes – one/many locations
      Some now as large as 3000
      Partners, associates, counsel, temporary
  Law practice has become very competitive
      Much more movement between firms
      Advertising & solicitation once were banned
Lawyers Working for Organizations
•Business corporations – major increase
•Non-profits
•Government – criminal & civil
•Litigation only a small part
•Issues of independence arise
•Issues of who is the client arise
•Law professors – only a JD for many
      Increasingly, other degrees, not law
Many lawyers leave the law for many other jobs.

				
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posted:7/22/2012
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