Lesson 5: Maintaining the Integrity of the Profession

Master the ethical standards governing legal professionals with free flashcards and practice questions. This lesson covers reporting professional misconduct, bar admission and disciplinary procedures, advertising and solicitation rules, unauthorized practice of law, and judicial conduct standards—essential topics for MPRE success and maintaining the integrity of the legal profession.

Welcome to Professional Integrity Standards ⚖️

The legal profession is largely self-regulating, which means lawyers have special responsibilities to maintain professional standards. Unlike previous lessons that focused on duties to clients and courts, this lesson examines your obligations to the profession itself. These rules protect the public, preserve the reputation of the legal system, and ensure that only qualified, ethical individuals practice law.

Think of these standards as the immune system of the legal profession—they identify and address threats to professional integrity before they can cause widespread harm.

Core Concepts: The Pillars of Professional Integrity 🏛️

1. Duty to Report Professional Misconduct 📢

The Mandatory Reporting Rule (Model Rule 8.3)

Lawyers have an affirmative duty to report certain types of misconduct by other lawyers and judges. This isn't optional—it's a professional obligation that can itself lead to discipline if violated.

When Must You Report?

You must report when you have knowledge (not mere suspicion) that another lawyer has committed a violation that raises a substantial question about that lawyer's:

• Honesty
• Trustworthiness
• Fitness to practice law

💡 Key Point: Not every violation must be reported—only those that go to the core character traits necessary for practicing law. Minor technical violations typically don't require reporting.

What Constitutes "Knowledge"?

Critical Exceptions to Reporting

You do NOT have to report misconduct if:

1. Confidentiality Protection: The information is protected by Rule 1.6 (confidential client information)
2. Lawyer Assistance Program: The information was gained while participating in an approved lawyer assistance program (e.g., substance abuse counseling)

⚠️ Common Trap: Many students think confidentiality always excuses reporting. Not true! You must report if you learned about the misconduct from a public source or from someone other than your client in a non-confidential context.

Examples of Reportable Misconduct:

• Misappropriating client funds (theft/dishonesty)
• Committing a serious crime (murder, fraud)
• Falsifying evidence in court (dishonesty)
• Practicing while suspended (fitness)
• Substance abuse seriously impairing performance (fitness)

Examples That May NOT Require Reporting:

• Missing a filing deadline (negligence, not character issue)
• Failing to return client calls promptly (poor practice management)
• Making a minor mistake on a form (honest error)

REPORTING DECISION FLOWCHART

    Do I have KNOWLEDGE of misconduct?
              |
        ┌─────┴─────┐
        NO           YES
        |             |
    No duty      Does it raise a
    to report    SUBSTANTIAL QUESTION
                 about honesty,
                 trustworthiness, or fitness?
                      |
                ┌─────┴─────┐
               NO            YES
                |             |
            No duty      Is information
            to report    protected by
                        confidentiality?
                             |
                       ┌─────┴─────┐
                      YES           NO
                       |             |
                   No duty      ✅ MUST REPORT
                   to report    to disciplinary
                                authority

2. Cooperation with Disciplinary Authorities 🤝

Model Rule 8.1: Bar Admission and Disciplinary Matters

Lawyers must be truthful and cooperative in dealings with bar admission authorities and disciplinary bodies.

Specific Prohibitions:

1. No False Statements: You cannot knowingly make a false statement of material fact
2. No Omissions: You cannot fail to disclose a fact necessary to correct a misapprehension
3. No Failure to Respond: You cannot fail to respond to a lawful demand for information (unless protected by the Fifth Amendment privilege against self-incrimination)

💡 Important: The Fifth Amendment privilege is the ONLY valid excuse for refusing to respond to a disciplinary inquiry. You cannot invoke attorney-client privilege to protect yourself in your own disciplinary proceeding.

Bar Application Questions

When applying to the bar, you must answer all questions honestly, including potentially embarrassing information about:

• Criminal history
• Academic misconduct
• Prior discipline in other professions
• Mental health or substance abuse issues
• Financial problems (bankruptcy, unpaid debts)

⚠️ Common Mistake: Thinking you can refuse to answer "personal" questions. Bar examiners can inquire into character and fitness, including mental health history, as long as questions are relevant to fitness to practice.

3. Judicial and Legal Official Conduct ⚖️

The Model Code of Judicial Conduct governs judges and other judicial officers. While lawyers aren't directly bound by these rules, understanding them is crucial because:

• Lawyers may become judges
• Lawyers must report judicial misconduct (Rule 8.3 applies to judges too)
• Judicial conduct affects the administration of justice

Core Judicial Principles:

Canon	Principle	Key Requirements
Canon 1	Uphold integrity and independence	Act with honesty, avoid impropriety
Canon 2	Avoid impropriety and appearance thereof	No appearance of bias or favoritism
Canon 3	Perform duties impartially	Disqualify when impartial impossible
Canon 4	Conduct extrajudicial activities appropriately	Limit outside activities that impair judicial duties

Judicial Disqualification

A judge must disqualify (recuse) when:

• The judge has a personal bias or prejudice concerning a party
• The judge has personal knowledge of disputed evidentiary facts
• The judge has a financial interest in the outcome
• The judge previously served as a lawyer in the matter
• A close family member is involved as party, lawyer, or witness
• The judge's impartiality might reasonably be questioned

💡 Key Point: The standard is objective—would a reasonable person question the judge's impartiality? The judge's subjective belief in their own fairness is not enough.

Judicial Campaign Conduct

Judges and judicial candidates face special restrictions on political activity:

• ✅ May announce views on legal issues
• ✅ May speak at political gatherings
• ❌ May not personally solicit campaign contributions (must use committee)
• ❌ May not make pledges or promises about how they'll rule
• ❌ May not make statements that commit them on cases likely to come before the court

4. Unauthorized Practice of Law (UPL) 📛

Model Rule 5.5: Unauthorized Practice of Law

Lawyers must not:

1. Practice law in a jurisdiction where they are not licensed
2. Assist a non-lawyer in the unauthorized practice of law

What Constitutes "Practice of Law"?

There's no universal definition, but it generally includes:

• Giving legal advice about specific situations
• Representing clients in court proceedings
• Preparing legal documents for others
• Negotiating legal rights or responsibilities

🔍 Key Distinction: Providing general legal information is NOT practicing law. Applying law to a specific person's situation usually IS.

Multijurisdictional Practice (MJP) - When Can You Practice Outside Your Home State?

Federal Practice

Admission to practice in federal court requires separate admission to that court's bar. Generally, you must be licensed in at least one state, but federal court admission allows practice in that federal court regardless of where the court is located.

Assisting Non-Lawyer Practice

Lawyers violate Rule 5.5 by:

• Splitting fees with non-lawyers for legal services
• Forming a partnership with non-lawyers for practicing law
• Allowing non-lawyers to direct or regulate their professional judgment

⚠️ Exception: Lawyers may employ non-lawyer assistants (paralegals) who perform substantive legal work under the lawyer's supervision. The key is that the lawyer remains responsible.

5. Communications About Legal Services (Advertising & Solicitation) 📣

Model Rule 7.1: Communications Concerning Services

Lawyers may advertise, but advertisements must not be:

• False or misleading
• Contain material misrepresentations of fact or law
• Omit facts necessary to make statements not misleading

What Makes an Advertisement Misleading?

Type of Claim	Permissible?	Notes
"Experienced in personal injury"	✅ Yes	Objective, verifiable
"Board certified specialist"	✅ Yes	If true and properly designated
"Winning record"	⚠️ Maybe	Must provide context; can't guarantee results
"Best lawyer in the state"	❌ Probably no	Subjective puffery may mislead
"We'll win your case"	❌ No	Cannot guarantee results
"$5 million verdict" (past result)	⚠️ Maybe	Must include disclaimer that results vary

Model Rule 7.2: Advertising Rules

Lawyers may advertise through various media (TV, radio, internet, billboards), subject to these requirements:

1. No Payment for Recommendations: Cannot give anything of value to someone for recommending the lawyer's services, EXCEPT:

   • Paying for advertising
   • Usual charges of a legal service plan
   • Paying for a lawyer referral service
   • Reciprocal referral agreements with other lawyers

2. Identification Required: Ads must include the name and contact information of at least one lawyer or law firm responsible for the content

Model Rule 7.3: Solicitation of Clients

This is where advertising rules get strict. Solicitation means targeted, real-time communication with a specific prospective client.

The General Rule: Lawyers may NOT solicit professional employment through direct live contact (in-person, phone, real-time electronic) when a significant motive is pecuniary gain, UNLESS:

• The person is a lawyer
• The person has a family relationship with the lawyer
• The person has a prior professional relationship with the lawyer

SOLICITATION ANALYSIS FRAMEWORK

    Is this targeted communication
    with prospective client?
              |
        ┌─────┴─────┐
        NO           YES
        |             |
    General      Is it LIVE/REAL-TIME
    advertising  (in-person, phone,
    (Rule 7.1)   live chat)?
                      |
                ┌─────┴─────┐
               NO            YES
                |             |
            Written      Is pecuniary gain
            solicitation a significant motive?
            (Must include     |
            "Advertising  ┌───┴───┐
            Material")   NO      YES
                |         |       |
              OK if     OK    Does exception
              not             apply (lawyer,
              false/          family, prior
              misleading      client)?
                                  |
                            ┌─────┴─────┐
                           YES           NO
                            |             |
                          OK        ❌ PROHIBITED
                                    SOLICITATION

Written Solicitation (Letters, Emails)

Lawyers may send targeted letters or emails, but they must:

1. Include "Advertising Material" on the outside of envelopes and at the beginning of electronic messages
2. Not involve coercion, duress, or harassment
3. Not be sent to someone who has asked not to be contacted
4. Not be false or misleading

💡 Modern Context: Social media direct messages and text messages are treated like written solicitation if not real-time exchanges, but real-time chat is treated like live phone calls (more restricted).

Special Rule for Accident Victims

Many states impose a waiting period (often 30 days) before lawyers can send targeted solicitations to accident or disaster victims. This protects vulnerable people from predatory practices during crises.

6. Specialization and Certification 🎓

Model Rule 7.4: Communication of Fields of Practice

Lawyers may communicate that they specialize or limit their practice to particular areas, BUT:

Claiming to be a "Specialist" or "Certified":

• ✅ May claim specialization if certified by an organization approved by the state bar or ABA
• ✅ May state fields of practice ("practicing primarily in criminal defense")
• ❌ May not claim board certification unless actually certified by approved organization
• ⚠️ Must name the certifying organization if claiming certification

Patent and Admiralty Exception: Lawyers admitted to practice before the U.S. Patent & Trademark Office may state they're "patent attorneys" without special certification. Similarly, admiralty lawyers have special historical recognition.

7. Law Firm Names and Letterheads 📝

Model Rule 7.5: Firm Names and Letterhead

Permissible Firm Names:

• ✅ Names of current partners/members
• ✅ Names of deceased or retired partners (continuing the firm name)
• ✅ Trade names ("The Smith Law Firm") if not misleading
• ❌ Names that imply connection to government agency
• ❌ Names that are otherwise misleading

Multi-State Practice:

A firm with offices in multiple jurisdictions:

• ✅ May use the same name in all locations
• ⚠️ Must indicate jurisdictional limitations of lawyers not licensed locally
• ❌ May not imply that all lawyers are licensed in all jurisdictions where the firm practices

"Of Counsel" Designation:

This term designates a close, regular relationship with a firm that's not full partnership. It's appropriate for:

• Retired partners with continuing relationship
• Lawyers in associations with the firm
• Part-time arrangements

⚠️ Must be genuine: Cannot use "of counsel" for merely occasional referral relationships.

8. Lawyer Referral Services 🔄

Model Rule 7.2(b)(2): Referral Service Requirements

Lawyers may pay to participate in lawyer referral services, but ONLY if the service:

1. Is approved by the state bar or meets quality standards
2. Does not engage in false or misleading advertising
3. Requires participants to maintain professional liability insurance (in many jurisdictions)

Group Legal Services Plans: Lawyers may participate in prepaid legal service plans that provide subscribers with access to legal services.

9. Jurisdiction and Choice of Law in Disciplinary Matters 🌐

Model Rule 8.5: Disciplinary Authority; Choice of Law

This addresses which jurisdiction's ethics rules apply when lawyers practice across state lines.

Where Can You Be Disciplined?

A lawyer is subject to discipline in jurisdictions where the lawyer is:

1. Licensed to practice
2. Practicing temporarily (multijurisdictional practice)

💡 Key Point: You can be disciplined in your home state for misconduct that occurred elsewhere, even if you were authorized to practice in that other jurisdiction.

Which Rules Apply?

Example: New York lawyer represents client in California litigation. While in California for trial, lawyer communicates directly with represented opposing party.

• Analysis: California's tribunal rules apply (Rule 4.2 - no contact with represented parties)
• Result: Violation even if New York lawyer was unfamiliar with California's specific application of the rule

Detailed Examples: Applying the Rules 📚

Example 1: The Reporting Dilemma 🤔

Scenario: Sarah is a family law attorney. During a bar association social event, she overhears two colleagues gossiping. One mentions that Attorney Mark has been "hitting the bottle hard" and missed multiple court appearances last month, angering judges. Sarah doesn't know Mark personally and has no direct knowledge of these incidents.

Analysis:

• Does Sarah have "knowledge"? No. She only has secondhand gossip from colleagues. This doesn't rise to the level of actual knowledge required by Rule 8.3.
• Must she investigate? No. There's no duty to investigate rumors or gossip to determine if they're true.
• What if she later sees Mark drunk in the courthouse? Then she would have direct knowledge that might raise a substantial question about his fitness to practice, potentially triggering a reporting duty.
• What if Mark is her client? If Sarah represents Mark in divorce proceedings and learns about the substance abuse problem through that representation, the information would be protected by confidentiality (Rule 1.6) and she would NOT have to report.

Result: Sarah has no duty to report based on overheard gossip alone.

Example 2: Multijurisdictional Practice Limits ⚖️

Scenario: Attorney Jessica is licensed only in Illinois. A former college roommate who lives in Wisconsin calls and asks Jessica to handle her divorce. The roommate will be filing in Wisconsin. Jessica says, "No problem—we're friends and it's just a divorce. I'll handle everything remotely from Illinois."

Analysis:

• Is this UPL? Yes. Jessica is providing legal services in connection with a Wisconsin proceeding without being licensed in Wisconsin.
• Does any exception apply? Let's check:
  • Associated with local counsel? No.
  • Pro hac vice admission? No, she hasn't sought it.
  • Reasonably related to Illinois practice? No. The matter has no connection to Illinois—client lives in Wisconsin, filing in Wisconsin.
  • ADR arising from home jurisdiction? No.
• Does their friendship matter? No. Personal relationships don't create an exception to licensure requirements.

Result: Jessica would violate Rule 5.5 (UPL). She should either:

1. Obtain pro hac vice admission in Wisconsin (if available for non-litigation matters)
2. Associate with a Wisconsin attorney who actively participates
3. Decline the representation

Example 3: Advertising Gone Wrong 📺

Scenario: Personal injury lawyer Tom creates a TV commercial showing him standing in front of a courthouse, saying: "I've won millions for my clients. Insurance companies fear me. If you hire me, you'll get the maximum settlement. I guarantee it. Call now!"

Analysis: Let's examine each claim:

1. "I've won millions for my clients"

   • ⚠️ Potentially acceptable BUT should include disclaimer that past results don't guarantee future outcomes
   • Without context, could mislead clients about their likely results

2. "Insurance companies fear me"

   • ⚠️ Subjective puffery that may be misleading
   • Cannot be objectively verified

3. "You'll get the maximum settlement"

   • ❌ Clear violation: Cannot guarantee results (Rule 7.1)
   • Creates unjustified expectations

4. "I guarantee it"

   • ❌ Clear violation: Express guarantee of outcome prohibited

5. Standing in front of courthouse

   • ⚠️ Could imply improper connection to court or government
   • Generally discouraged but not always prohibited

Result: The ad violates Rule 7.1 (false/misleading communications) due to the guarantees of results. Tom could face discipline.

Example 4: Direct Solicitation Boundaries 📞

Scenario: Attorney Lisa specializes in immigration law. She learns from news reports that ICE conducted raids at a local factory, arresting 50 workers. She:

• (A) Posts on her Facebook page: "If you or a loved one was affected by the recent immigration raids, I can help. Call for a free consultation."
• (B) Sends personalized letters to the home addresses of arrested workers she identified through public records, with "ADVERTISING MATERIAL" printed on the envelope.
• (C) Goes to the detention center and hands her business card to detained workers through the fence.

Analysis:

(A) Facebook Post:

• ✅ Permissible: This is general advertising, not targeted solicitation
• Not directed at specific individuals
• Anyone can see it; it's not live contact

(B) Targeted Letters:

• ✅ Permissible (in most jurisdictions): Written solicitation is allowed if:
  • Clearly marked "Advertising Material" ✓
  • Not false or misleading ✓
  • Recipients haven't opted out ✓
• ⚠️ However: Some states impose 30-day waiting periods after incidents affecting vulnerable populations. Check local rules.

(C) In-Person Contact:

• ❌ Prohibited: This is classic prohibited live solicitation
• Direct, in-person contact ✓
• Targeting specific individuals ✓
• Pecuniary motive ✓
• No exception applies (not lawyers, family, or prior clients)
• Particularly egregious because targets are detained and vulnerable

Result: Lisa may post general ads and send properly labeled letters (subject to state-specific waiting periods), but she cannot make in-person solicitation at the detention center.

Common Mistakes to Avoid ⚠️

Mistake #1: "I Only Have to Report If I'm Certain"

Reality: You must report when you have "knowledge," which includes information you know to be true from reliable sources, even if you didn't witness the misconduct yourself. However, you don't have a duty to investigate rumors.

Mistake #2: "Confidentiality Always Protects Me From Reporting"

Reality: Confidentiality (Rule 1.6) only protects information "relating to representation of a client." If you learn about another lawyer's misconduct from:

• Public sources
• Non-client third parties
• Court proceedings
• Other contexts outside client representation

Then confidentiality doesn't apply and you may have a duty to report.

Mistake #3: "I Can Refuse to Cooperate With Disciplinary Authorities to Protect My Clients"

Reality: Attorney-client privilege does NOT protect you in your own disciplinary proceedings. Only the Fifth Amendment privilege against self-incrimination excuses non-cooperation. You must respond to disciplinary inquiries even if the questions relate to your representation of clients.

Mistake #4: "Judges Can't Have Any Political Opinions"

Reality: Judges may announce their views on legal and political issues. What they cannot do is:

• Make pledges or promises about how they'll rule in specific types of cases
• Make statements that commit them to particular outcomes
• Create the appearance that they've prejudged issues likely to come before them

Mistake #5: "I'm Licensed in One State, So I Can Handle Any Matter for Clients From That State"

Reality: Your ability to practice is generally determined by where the legal services are being performed and where legal proceedings occur, not by where the client is from. You need authorization to practice in the jurisdiction where you're providing services.

Mistake #6: "All Advertising Is Basically Fine as Long as It's Not False"

Reality: While false advertising is the main concern, you also can't:

• Guarantee results
• Create unjustified expectations
• Make comparisons that can't be verified
• Omit information that makes statements misleading
• Use testimonials without proper disclaimers in some jurisdictions

Mistake #7: "Written Solicitation and In-Person Solicitation Are Treated the Same"

Reality: In-person (or live telephonic/electronic) solicitation is much more restricted because of the pressure it can create. Written solicitation to specific individuals is generally permitted if properly labeled "Advertising Material" and not false or misleading.

Mistake #8: "I Can Call Myself a 'Specialist' Because I Only Practice in One Area"

Reality: Terms like "specialist," "expert," or "certified" are regulated. You generally cannot use them unless you're actually certified by an organization approved by the state bar or ABA. You CAN say you "concentrate in" or "limit your practice to" certain areas.

Memory Devices 🧠

The "KNOW-IT" Test for Reporting Misconduct

K - Knowledge (not mere suspicion) N - Not protected by confidentiality O - Other lawyer (or judge) W - Wrongdoing of substantial nature I - Integrity questioned (honesty, trustworthiness, fitness) T - Tribunal authority must be notified

All elements must be present for mandatory reporting.

The "CALL-ME" Rule for Multijurisdictional Practice

C - Court admission (pro hac vice) A - Associated with local counsel L - Litigation-related to home state L - Limited temporary practice M - Mediation/arbitration from home practice E - Exception applies? You may practice.

The "FALSE" Test for Advertising Violations

F - Future results guaranteed? A - Approval/certification false? L - Lacking required disclosures? S - Statements objectively unverifiable? E - Expectations unjustified?

If yes to any → likely violates Rule 7.1

Solicitation: "LIVE-DANGER"

LIVE contact + pecuniary motive + stranger = DANGER (prohibited)

Exceptions: Lawyers, Family, Prior clients (LFP = okay)

Key Takeaways 🎯

📚 Further Study

For additional resources on professional responsibility and the MPRE:

1. ABA Model Rules of Professional Conduct: https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/

   • Official text of the Model Rules with comments
   • Essential primary source for understanding professional conduct standards

2. ABA Model Code of Judicial Conduct: https://www.americanbar.org/groups/professional_responsibility/resources/judicial_ethics_regulation/

   • Complete text of judicial conduct standards
   • Important for understanding reporting obligations and judicial ethics

3. NCBE MPRE Information: https://www.ncbex.org/exams/mpre/

   • Official exam information, sample questions, and study resources
   • Subject matter outline showing tested topics and their weight

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Remember: The legal profession's self-regulatory nature means that every lawyer is a guardian of professional standards. Your obligations to report misconduct, cooperate with authorities, and maintain advertising integrity protect the public and preserve confidence in the justice system. These aren't just rules—they're the foundation of professional trust. ⚖️