Legal Systems of the USA

Legal Systems of the USA The Role and Regulation of the Lawyer in the US Legal System

The Role and Regulation of Lawyers in the U.S. • The adversary system necessarily requires parties to be represented by lawyers because the adversarial procedures are complicated. • But the high cost of hiring a lawyer means that many poor and middle class individuals are unrepresented in court, especially in family law cases.

Lawyers in the U.S. The number of lawyers in the U.S. has increased greatly – increasing 100% between 1970 and 1990. As of 2008, there were over 1,300,000 lawyers in the U.S.

Lawyers in the U.S. Almost 75% of lawyers are in private practice. Many practice alone of with one or two partners, but the large law firms (250+ lawyers) are the fastest growing source of employment for lawyers.

Education of Lawyers • Historically in the U.S., legal education consisted of “reading the law” - - that is, reading common law cases in an apprenticeship with an experienced lawyer. • In the late 19th century, a campaign was begun to establish a uniform law school education requirement for entry into the profession.

Education of Lawyers U. S. law school is 3 years in duration. However, law schools require a 4 year undergraduate degree to be admitted so the total course study is 7 years.

Law Schools in the USA In 2005, there were approximately 200 ABA law schools accredited by the American Bar Association, a volunteer private organization of lawyers, with over 140,000 law students and there were over 40,000 graduates.

U.S. Law Schools The U.S. Law School Experience • No “official” curriculum is mandated • 1st year traditionally includes constitutional law, civil procedure, contracts, property, criminal, torts and legal writing. • Case law method of instruction • Casebook contains judicial opinions on the subject • Written essay examinations based on complex fact situations • Summer internships

Advanced Law Degrees • 98% of lawyers will have a Juris Doctor’s degree, but there are advanced degrees beyond the typical 3 year degree. • U.S. law school graduates may seek specialized Masters in law (L.L.M.) degrees in such specialties as taxation, finance, and intellectual property. Normally 2 years. • Professors of law sometimes seek the more advanced degree of Doctor of Science of Law (S.J.D.)

Advanced Degrees (continued) • A common advanced degree program at some U.S. law schools is offered for foreign law school graduates seeking an L.L.M. in comparative law. • With that degree, a foreign lawyer may be eligible to take the bar exam and be admitted to the bar in certain of the states in the U.S.

Admission to the Bar • Admission to the practice of law - - or admission to the Bar as it is described - - is a requirement before you cam work as a private lawyer. • Admission is controlled by the states, not the federal government.

The Bar Exam You must pass a bar examination to be admitted to the Bar of a particular state. The exam is generally given twice a year: • Spread over 2 or 3 days • Multiple choice and essay questions • Each state sets its own passing score

Interstate Practice • Because the states regulate lawyers, a lawyer has no right to practice law in a state without being admitted to that state’s bar, including taking the state’s bar exam. • Some states admit lawyers without a new bar exam if the lawyer has practiced in another state for a given time period, usually 5 to 7 years.

Interstate Practice (continued) • A lawyer from another state may take part in a trial in a state in which she is not admitted if the judge gives special permission and the lawyer works with a local lawyer.

Federal Practice Although federal law and procedure is uniform nationally, there is no one central place for a lawyer to obtain a certification to practice in federal court. Lawyers must be admitted to the bar of a state and apply to the U.S. District Court in that state to be admitted to practice in that court.

Regulation of Lawyers Lawyers are regulated by the states, usually through the state supreme court. The supreme courts adopt ethics codes which have the force of law and which regulate all aspects of a lawyer’s work.

Rules of Professional Responsibility Codes of professional responsibility (or ethics) are based on model codes prepared by the American Bar Association, a private voluntary lawyer organization. Each state’s code is unique and, while codes may cover similar subjects, there is great difference in the details.

Rules of Professional Responsibility Confidentiality Model Rule 1.6 states what is required: “A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation.”

Professional Responsibility Confidentiality Model Rule 1.6 has important exceptions. Lawyers may reveal confidential information if the lawyer believes it necessary “to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm.”

Professional Responsibility Some states require lawyers to disclose information necessary to prevent life threatening or criminal conduct and most permit such disclosures.

Professional Responsibility Confidentiality Florida Rule 4-1.6 (Confidentiality) states: • (a) Consent Required to Reveal Information. A lawyer shall not reveal information relating to representation of a client except as stated in subdivisions • (b) . . . unless the client gives informed consent.

Professional Responsibility (b) When Lawyer Must Reveal Information. A lawyer shall reveal such information to the extent the lawyer reasonably believes necessary: (1) to prevent a client from committing a crime; or (2) to prevent a death or substantial bodily harm to another.

Confidentiality The New Jersey rule: “(b) A lawyer shall reveal such information to the proper authorities, as soon as, and to the extent the lawyer reasonably believes necessary, to prevent the client or another person: (1) from committing a criminal, illegal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm or substantial injury to the financial interest or property of another; (2) from committing a criminal, illegal or fraudulent act that the lawyer reasonably believes is likely to perpetrate a fraud upon a tribunal.”

Confidentiality Hypothetical Hypothetical Question Assume that you are a U.S. lawyer working for Super Leather Corp., a company that processes leather for shoes. The processing produces toxic chemicals which have been shown in laboratory studies to cause cancer in mice. The president of Super Leather tells you that the company’s factory has a treatment process which eliminates the chemicals, but over the last month it has not worked properly.

Hypothetical (continued) Toxic chemicals are being released into a lake that is a source of drinking water for a town. The release of the chemicals violates environmental laws but does not violate criminal laws.

Hypothetical (continued) Questions: • Under Model Rule 1.6, may you disclose the release of chemicals to the government? Why did you make your decision? • What if you were a Florida lawyer, may you disclose? Must you disclose? • What about New Jersey?

Professional Responsibility In addition to regulating a lawyer’s duties to clients, the rules of professional responsibility also regulate a lawyer’s conduct in court and, to some extent a lawyer’s private conduct.

Professional Misconduct Model Rule 8.4 states: “It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct . . .; (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

Professional Misconduct Model Rule 8.4 (continued): (d) engage in conduct that is prejudicial to the administration of justice; (e) state or imply an ability to influence improperly a government agency or official; or (f) knowingly assist a judge or judicial official in conduct that is a violation of applicable rules of judicial conduct or other law.

Professional Misconduct Rule 8.4 covers a wide range of conduct and has been interpreted broadly. For example, as to subparagraph (b), many kinds of illegal conduct has been found by some states to reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return.

Professional Misconduct In addition, this rule can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law.

Professional Misconduct In addition, as to paragraph (d), a lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, has been found to violate paragraph (d), when such actions are prejudicial to the administration of justice.

Candor to the Court Model Rule 3.3 also imposes specific duties to the court: “A lawyer shall not knowingly:(a) make false statement of material fact or law to a tribunal;

Candor to the Court (continued) (b) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (c) offer evidence that the lawyer knows to be false.”

Candor to the Court Rule 3.3 sets forth the special duties of lawyers as officers of the court to avoid conduct that undermines the integrity of the judicial process. A lawyer acting as an advocate in an adversary proceeding has an obligation to present the client's case with persuasive force. Performance of that duty, however, is qualified by the advocate's duty of candor to the court.

Candor to the Court Consequently, although a lawyer in an adversary proceeding is not required to present an impartial explanation of the law or to vouch for the evidence submitted in a cause, the lawyer must not allow the tribunal to be misled by false statements of law or fact or evidence that the lawyer knows to be false.

Candor to the Court Under paragraph (a) legal argument based on a false representation of law constitutes dishonesty toward the court. A lawyer is not required to make a disinterested presentation of the law, but must recognize the existence of applicable statutes and cases. Furthermore, as stated in paragraph (b), an advocate has a duty to disclose directly adverse authority in the controlling jurisdiction that has not been disclosed by the opposing party. The underlying concept is that legal argument is a discussion seeking to determine the legal premises properly applicable to the case.

Candor to the Court Further, as stated in paragraph (b), a lawyer has a duty to disclose directly adverse authority in the controlling jurisdiction that has not been disclosed by the opposing party. The underlying concept is that legal argument is a discussion seeking to determine the law properly applicable to the case

Unauthorized Practice of Law Nonlawyers are generally prohibited from practicing law by state law. • The purpose in theory is to protect the public from legal representation by unqualified persons. • In practice, many things considered “practicing law can be done by nonlawyers, such as real estate agents preparing deeds and accountants giving tax advice.

Lawyer Advertising Lawyers advertise in the U.S., especially lawyers seeking to represent persons injured on the job, by medical malpractice, by a harmful product, or in an accident. • U.S. Supreme Court declared many state restrictions on lawyer advertising unconstitutional as a violation of the lawyers right of free speech.

Lawyer Advertising The following is the text of an internet advertisement directed at lawyers: Looking for more personal injury cases? TV advertising reaches people with serious injuriesIN BED at home or in the hospital where they don't have access to the Internet or Yellow Pages Does your advertising stand out?

Lawyer Advertising 1-800-HURT-911 can get you 14 times more calls! With 1-800-HURT-911 you can Dominate lawyer advertising! Exclusive territory for your entire TV market guarantees you success! RESERVE YOUR EXCLUSIVE TERRITORY TODAY BEFORE IT'S GONE!

Attorney’s Fees The fees charged by lawyers are a matter of contract between the client and the lawyer, but all legal fees are regulated by the states. Three general types of fees: • Contingent fees. Normally charged in tort lawsuits. Capped at 25% to 30%. • Hourly billing based on time involved in representation. • Flat fees generally for more routine matters.

Attorney’s Fees Florida RULE 4-1.5 (a) Illegal, Prohibited, or Clearly Excessive Fees and Costs. An attorney shall not enter into an agreement for, charge, or collect an illegal, prohibited, or clearly excessive fee or cost, or a fee generated by employment that was obtained through advertising or solicitation not in compliance with the Rules Regulating The Florida Bar. A fee or cost is clearly excessive when:

Attorney’s Fees (1) after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee or the cost exceeds a reasonable fee or cost for services provided to such a degree as to constitute clear overreaching or an unconscionable demand by the attorney . . . .

Attorney’s Fees Contingent Fees Florida Rule 4-1.5 (f) Contingent Fees. As to contingent fees: (1) A fee may be contingent on the outcome of the matter for which the service is rendered . . . . A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial, or appeal . . . .

Solicitation Florida Rule 4-7.4 (a) Solicitation. [A] lawyer shall not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, in person or otherwise, when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain. A lawyer shall not permit employees or agents of the lawyer to solicit in the lawyer’s behalf . . . . The term "solicit" includes contact in person, by telephone, telegraph, or facsimile, or by other communication directed to a specific recipient . . . .

Regulation of Misconduct The Florida Bar v. Barrett • What are the facts? • What are the main issues before the court? • What did the court hold?

Florida Bar v. Barrett • What scope of review and standard of review did the court apply? • Was there more than one?

Florida Bar v. Barrett Barrett challenged the findings of fact of the referee. • Florida Supreme Court held that “[a]bsent a showing that the referee’s finding are clearly erroneous or lacking in evidentiary support, this Court is precluded from reweighing the evidence . . . .” Page 8 of 11.

Legal Systems of the USA