Lecture Outline – Regulation of Attorneys

B Glesner Fines

September 2, 2009

 

1)      Once upon a time,

a)      Attorneys were admitted by committee without applications

b)      Attorneys were regulated by state courts under general “fitness to practice” standards

c)      States controlled the practice of law

d)      Federal courts did not intervene

 

What do you think were the advantages and disadvantages of this system?

 

2)      Then, things started to change

a)      The profession began to regulate itself with rules

i)        1908 Canon of Ethics

ii)       1969 ABA Model Code of Professional Responsibility

iii)     1983 ABA Model Rules of Professional Conduct

iv)     1970 Professionalization of Disciplinary Enforcement

b)      The federal courts began to police that regulation for constitutionality

i)        In Bates v. State Bar of Arizona, 433 U.S. 350 (1977), the Court held that attorney advertising was commercial speech protected by the First Amendment, striking down state regulation that banned nearly all advertising.

ii)       In Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985) residency requirements for attorney admission were found to violate the Privileges and Immunities Clause

iii)    In Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975), the court held that attorneys were engaged in “trade or commerce” and thus, were not exempt from antitrust laws. 

What do you think precipitated these changes in attorney regulation?

 

 

 

 

3)      Today:

a)      Is the profession still “self regulated”?

b)      Regulation has increased and diversified

i)        Frequent amendments to the ABA Model Rules reflect regulatory instability

ii)       While all states except California have based their rules on the Model Ruels, there is little uniformity as each state has variations on at least some rules

iii)     The American Law Institute – a much less representative group than the ABA – has produced the Restatement of the Law Governing Lawyers

iv)     Specialized aspirational codes have been promulgated for nearly every area of practice. 

c)      The federal government is increasingly regulating attorneys through agency regulation and through congressional legislation that reaches lawyers.  Some examples include:

i)        Patent and Trademark Office – Separate admission requirements.  Regulations are found in 37 CFR Part 10.  The rules mirror the rules of professional conduct.

ii)       Office of Thrift Supervision – has considerable regulation for practice before it (12 C.F.R. §§ 513-590 (1992))

iii)     Security & Exchange Commission - The power of the SEC to discipline professionals was upheld in Touche Ross & Co. v. SEC, 609 F.2d 570 (2d Cir. 1979).  Section 307 of the Sarbanes-Oxley Act of 2002 expressly directs the SEC to promulgate rules regulating the practice of attorneys “appearing and practicing before the Commission”  15 USC §7245.  These rules are at 17 C.F.R. §§205.1-205.7.   

iv)     Immigration – Attorneys who practice before  INS (Department of Homeland Security) are regulated by a number of administrative regulations.  See, 8 C.F.R. §§292.3(a)-(g), 1003.1(d)(5), 1003.101, 1003.103-108 (2007). However, DHS attorneys who prosecute removal cases before the DOJ are not subject to these rules. See 8 C.F.R. §§292.3(a)(2), 1003.109 (2007)

v)      Treasury Department – Internal Revenue Service - The regulation of attorneys and others who “practice before the Internal Revenue Service” is governed by Circular 230 (31 CFR §§10.0-10.93). 

vi)     Bankruptcy Code – The Bankruptcy Code imposes various obligations on attorneys include advertising restrictions, restrictions on counseling clients, and frivolous pleading standards.  11 USC §707(b)(4)(C)

vii)   Medicaid - “Granny’s Lawyer Goes to Jail” 42 U.S.C.A. §  1320a-7b(a)(6). criminalizes “medicaid counseling” (specifically spending down that results in a period of ineligibility for medicaid) Enjoined by court in N.Y. State Bar Ass’n v. Reno, 999 F.Supp. 710 (N.D.N.Y. 1998)

viii)  Legal Services Corporation Act (42 U.S.C. § 2996 et seq.) As a condition of receiving federal funding, Act restricts Legal Aid offices from taking certain cases (e.g., cannot take fee generating cases), using certain tactics (e.g., cannot file class actions), representing certain clients (e.g., cannot represent undocumented immigrants) and suing certain opponents (e.g., can’t sue government) (This last requirement was held unconstitutional as content discrimination in Velazquez v. Legal Servs. Corp., 164 F.3d 757, 773 (2d Cir. 1999))