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BACKGROUND & REGULATION BACKGROUND 1. Sources of LGL: 1) ABA model rules, 2) WI version of rules, 3) Restatement of LGL CHARACTER, FITNESS, ADMISSION TO THE BAR 2. WI Admission Requirements (four of them) (Rule 40.02) a. Age of Majority (18) b. Satisfaction of legal competence requirements i. Diploma privilege, bar exam, or proof of practice elsewhere c. Satisfaction of Character & Fitness requirements (Rule 40.06) i. Applicant has burden to show good moral fitness, an undefined standard. ii. Purpose: 1) protection of clients, 2) protect administration of justice, 3) PR iii. Common Character Issue: crimes, untruthfulness, fiscal mismanagement d. Oath (Rule 40.15): includes promise to abstain from offensive personality. 3. Best Advice: be honest & candid. Coverup creates more issues than the offense. 4. Rule 8.1: applicant may not make false statements or fail to disclose relevant facts SYSTEM OF LAWYER DISCIPLINE 5. Methods of Enforcement: 1) bar admission, 2) discipline, 3) Civil Actions 2. Purposes of Discipline a. Cleansing Function: identify & remove deviant members b. Deterrence Function: provide incentives for lawyers to comply c. Public Relations Function: Enhance image of lawyers 3. Misconduct (Rule 8.4) a. Covers 1) violation of any conduct rule, 2) criminal activity reflecting on honesty, trustworthiness, or fitness, 3) non-criminal conduct involving dishonesty, fraud, deceit, or misrepresentation, 4) conduct prejudicial to admin. of justice b. Includes things like dishonesty that are broadly defined (may include tax problems) c. Need not actually cause harm to violate rules 4. Disciplinary Choice of Law (Rule 8.5) a. Answer to WI if admitted to WI (regardless of location), or if action was in WI b. Safe Harbor: OK if conform to rules of that you reasonably believe govern the location 5. Duties: a. Competence (Rule 1.1): Provide competence (knowledge, skill, thoroughness) of general practitioner & determine when specialist is needed. Consider such things as experience, specialization, and ability to refer to a specialist. Must keep abreast of changes through continuing education. b. Diligence (Rule 1.3): Includes promptness. Do not procrastinate or take more work than you can handle. 6. Civil Actions for Malpractice a. Most complaints come in emotional areas (family & criminal law) b. Most complaints relate to inattentive lawyering (communication, procrastination, diligence) 6. Problem 1 (p32): c. Gary cheated on bar exam, uses connection for leniency, hides criminal past by name change. d. Main points are demonstration of dishonesty and that incidents are recent. e. Hypo: Gary uses you as bar reference & you receive inquiry by mail. Required to respond to inquiry, confidentiality applies. Could claim confidentiality (red flag), get Garys consent to answer, advise Gary to modify application to disclose his past problems (best solution). 7. Problem 2 (p46) f. Lawyer Black has an alcohol problem. This is violation of competence duty. g. Lawyer Andrews procrastinates and seeks continuances. Violation of diligence duty. REPORTING PROFESSIONAL MISCONDUCT 8. Duty to Report (Rule 8.3) a. Five Elements: i. Knowledge: reasonable lawyer would form opinion that conduct had occurred ii. Violation of MRPC: Invokes the very broad requirements of rules iii. Raising Substantial Questions [as to..] iv. Honesty, Trustworthiness, Fitness: need not be related to professional capacity v. Appropriate Professional Authority [should be notified]: usually notify the state Bar
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