CH. 2: LEGAL PROFESSION AND
THE PRACTICE OF LAW
A.
JUDICIAL REGULATION AND THE DOCTRINE OF INHERENT POWER
SUCCESSION OF WALLACE, p. 42
 what is the issue, and how did it arise?
 when a will names an executor and also designates an attorney for
the estate, are the executor and the beneficiaries stuck with her?
 La S Ct in 1929 said yes
 Court overruled that decision in 1986 and said no
 both decisions were based entirely on interpretation of the civil
code, with no mention of court rules governing lawyers
 Legislature sought to overturn the latter decision by statute,
requiring “just cause” for the removal of a lawyer so designated
 in this case, an executor challenged the statute as inconsistent
with a court-adopted rule governing lawyers generally
 how does the court resolve the issue?
 now, a conflict is found between the statute and the court rule
(which already existed in 1986 in their Code of Prof. Resp.)
 the court rule wins, on constitutional grounds!
INHERENT JUDICIAL POWER TO REGULATE LAWYERS
 What is the rationale for this claim?
 Wallace: “sources”:
“the traditional inherent and essential function of
lawyers as officers of the courts”
 “the constitutional separation of powers”
 “this court’s exclusive original jurisdiction of
attorney disciplinary proceedings”
 are these equally persuasive?
INHERENT JUDICIAL POWER c’t’d
 How far does the claim go?


validate regulatory acts of judiciary?
invalidate conflicting regulatory acts of other branches?
(Wolfram’s critique, n. 3 p. 46)
 is this a claim of universal exemption of lawyers from
application of statutes or executive regulations? Some
times sounds like it, but
 in Louisiana and many other states the courts will sustain a
statute which is consistent with and supportive of their own
regulatory positions
 common example: statutes making unauthorized practice
of law (defined as the courts define it) a crime
 the MPRC themselves frequently refer to “other law” as
potential qualifiers on a particular right or obligation –
typically, that will be a law of more general application
which, in the view of the courts, can be applied to lawyers
without compromising their unique professional obligations
INHERENT POWER c’t’d
 What aspects of law practice does the claim
cover?
 representing clients in court
 private clients
 government clients (prosecutors, n. 6 p. 47)
 advising and representing clients outside of court
 private clients
 government clients (our problem, p. 42?) (n. 5 p. 47)
 what arguments for excluding each of these?
B. FEDERAL INTERVENTION IN STATE REGULATION
 Problem pp. 48-9
 State supreme court adopts rule limiting admission
to practice to the top 20 scorers on the bar exam
 Member objects to the rule on behalf of minorities,
using provocative language to describe the rule and
the court
 objector asserts various claims against the court
and its judges seeking to overturn the rule and for
other kinds of relief
 disciplinary action is instituted against her because
of her criticism, and she asserts federal defenses in
various contexts
Federal antitrust claims
 against the court itself, based on its plenary
control over the business of practicing law
 What defense? Lawline, p. 50
 immunity from antitrust liability, as a state actor
 Where does this defense come from?
 Constitutional limitations on federal regulatory
power?
 Statutory interpretation?
 antitrust claims c’t’d
 Against the Board of Bar Examiners, created
by the court to administer the admissions
process, which adopted the rule on its own
initiative
 Is the BBE also immune from antitrust liability?
What additional facts, if any, do you need to
know? Ronwin, n. 6 p. 58; Goldfarb, n. 7 p. 59
 Did the court authorize the BBE to adopt rules of
this character? Did it establish a clear policy to be
implemented?
 Did the court supervise the process of adoption?
Civil rights claim against judges
 is there sufficient proof that the individual
judges violated the civil rights of minorities?
 if so, what relief is available?
 damages? “judicial immunity”!
 injunction against enforcing rule? yes
 declaration of invalidity of rule? Yes
DISCIPLINARY ACTION AGAINST LAWYER
 Charge filed against lawyer in the supreme
court’s disciplinary procedure, based on
statements made about court and judges
 Lawyer now files suit in federal court against
disciplinary authority, seeking injunction against
enforcement of rules
 Motion to dismiss the claim – what ruling?
Middlesex County Ethics Commission, n. 9 p. 59:
can the constitutional defense be asserted in the
state proceeding? If so, abstention by federal
courts pending state court decision
DISCIPLINARY ACTION c’t’d
 Assume federal court abstains and disciplinary
process continues, the First Amendment defense
asserted and rejected, misconduct found and
discipline recommended
 now lawyer sues in federal district court to
declare the findings to be inconsistent with First
Amendment
 motion to dismiss: what ruling? Feldman, n. 10
p. 60: lack of jurisdiction to review state court
decisions!
FEDERAL CIVIL RIGHTS LAW
 Congress enacts civil rights statute requiring
state affirmative action in admissions, to
achieve percentage of minority lawyer
membership equal to that in general
population – assume that this passes must
under the federal constitution
 if state supreme court refuses to comply,
citing its plenary power to regulate lawyers,
what ruling?
 “preemption” or “supremacy”?
OTHER ISSUES
 Lawline: What is the position of the ABA in
relation to liability for the Model Rules being
inconsistent with
 antitrust laws?
 civil rights laws?
 Notes 1-4 pp 56-58: If a state supreme court
adopts a unitary state bar, requiring all
licensed lawyers in the state to be members,
is that constitutional?