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.
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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
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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
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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)
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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
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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
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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
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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)
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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:
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–
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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
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
injuries
IN 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
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What are the facts?
What are the main issues before the court?
What did the court hold?
Florida Bar v. Barrett
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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.
Florida Bar v. Barrett
Barrett challenged the recommended discipline
of one year suspension and the Bar sought
to increase the punishment to complete
disbarment.
 What precedent did the Court follow in its
ruling to disbar Barrett?
Representing Clients Who are
Poor
In criminal cases, criminal defendants who are
indigent (poor) have a constitutional right to
an effective lawyer without cost to the
defendant.
Public defenders – government employees –
exist in the federal and state systems to
represent indigent defendants.
Representing the Poor
In civil cases, there is no constitutional
right to a lawyer.
Representing the Poor
The U.S. government and some states
provide funding for legal aid offices
around the country. Lawyers in these
offices provide legal services for the
poor in civil cases. Only 20% of the
potential clients can be served.
Pro Bono Legal Assistance
American private lawyers have a
tradition and ethical duty to provide
service “pro bono publico” – free legal
services “for the public good.”
Pro Bono
Model Rule 6.1 states that a lawyer:
“should aspire to render at least fifty (50)
hours of pro bono publico legal services per
year” and should provide a “substantial
majority” of such services to “persons of
limited means” or to organizations that are
designed primarily to assist such individuals.
But pro bono is not mandatory.
Pro Bono
In Florida, each year lawyers must
report to the Supreme Court the
amount of pro bono service that they
provide and the amount of money
contributed to legal aid groups.
Pro Bono
In 2006, 26,000 Florida lawyers provided a
total of 1,110,000 hours of free pro bono
legal services. But only 52% of Florida
lawyers reported that they provided pro bono
services.
The Legal Systems of the United
States of America
16 May 2011
Judge William Van Nortwick
Tyne v. Time Warner Entertainment Co., L.P.
Tyne v. Time Warner
Questions to ask yourself as we review the documents
of the case:
1.
What are the laws on which the plaintiffs are basing
their claims?
2.
Are the laws state or federal?
3.
What is the basis of the federal court’s jurisdiction?
4.
What are the arguments of the parties as to the
laws?
Tyne v. Time Warner
Procedural Information
1. A “complaint” is the document filed by a
plaintiff to start a lawsuit. It must state the
important facts on which the lawsuit is
based and usually also states the law on
which the lawsuit is based.
2. The request for a jury trial is usually stated
in the complaint
Tyne
Procedural Information (continued)
3. Before the trial, the trial judge can grant what is
called “summary judgment” if, after discovery
(investigation) by the parties, there are no material
factual disputes.
 In that event, the trial judge can decide the case on
the law.
 If the facts are in dispute, a jury must decide the
case.
Tyne
Tyne v. Time Warner Entertainment Co., L.P., is a
lawsuit that was filed in federal court in Tampa,
Florida. The case arose from the Time Warner
motion picture, The Perfect Storm. The Perfect
Storm is based on the events that occurred in
October 1991 when the Andrea Gail, a
fishing boat fishing for swordfish (pesce spada), was
caught in a severe storm off the
coast of Massachusetts and was lost at sea.
Tyne
The plaintiffs are the surviving spouse and children of
Frank William “Billy” Tyne, the deceased captain of
the Andrea Gail, and the surviving child of Dale R.
Murphy, a deceased crew member of the Andrea
Gail.
The plaintiffs filed a lawsuit asserting claims under
Florida law for (1) unauthorized commercial
appropriation of the deceased’s and plaintiff’s
likeliness in violation of Florida Statute section
540.08; and (2) common law invasion of privacy
under Florida common law.
Tyne
Florida Statutes section 540.08
(1) No
person shall publish, print, display or otherwise
publicly use for purposes of trade or for any
commercial or advertising purpose the name,
portrait, photograph, or other likeness of any natural
person without the express written or oral consent to
such use given by:
(a) Such
person; or . . . .
(c) If such person is deceased, . . . by any one from
among a class composed of her or his surviving
spouse and surviving children.
Tyne
Florida Statutes section 540.08 (continued)
(2) In the event the consent required in subsection (1)
is not obtained, the person whose name, portrait,
photograph, or other likeness is so used, . . . or, if
the person whose likeness is used is deceased, any
person . . . having the right to give such consent . .
. may bring an action to enjoin such unauthorized
publication, printing, display or other public use, and
to recover damages for any loss or injury sustained
by reason thereof, including an amount which would
have been a reasonable royalty, and punitive or
exemplary damages.
Tyne
Florida Statutes section 540.08 (continued)
(3) The provisions of this section shall not apply to:
(a) The publication, printing, display, or use of the name or
likeness of any person in any newspaper, magazine, book,
news broadcast or telecast, or other news medium or
publication as part of any bona fide news report or presentation
having a current and legitimate public interest and where such
name or likeness is not used for advertising purposes;
(b) The use of such name, portrait, photograph, or other likeness
in connection with the resale or other distribution of literary,
musical, or artistic productions or other articles of merchandise
or property where such person has consented to the use of her
or his name, portrait, photograph, or likeness on or in
connection with the initial sale or distribution thereof . . . .
Tyne’s Path in the Courts
Federal
US Supreme
Court
11th Circuit
Court of Appeal
In Atlanta
Federal District
Court in Tampa
Florida
Florida Supreme
Court
District Courts
Of Appeal
Trial Court
Tyne v. Time-Warner
Let’s go to the movies!
We will watch parts of the movie so that you
will better understand the plot and the
allegations in the lawsuit.
Tyne v. Time Warner
The Second Amended Complaint.
1. Paragraph 1 contains allegations to establish the
Federal District Court’s jurisdiction under the federal
diversity statutes.
Tyne v. Time Warner
2.
Paragraph 2 alleges facts that establish “venue” in
the Federal District Court in Orlando, Florida.
3.
Paragraph 3 alleges a basis for the federal court in
Florida having personal jurisdiction over the
defendants. Notice that defendants are alleged to
be doing business in Florida.
Tyne
Starting with paragraph 5 through paragraph
20, the complaint makes detailed allegations
about each plaintiff and defendant. Now you
know all about the “players.”
Tyne
In paragraphs 21 through 48, the plaintiffs
set out what they call the “Common Factual
Allegations,” that is, the allegations that will
relate to all 14 counts of the complaint. This
is the plaintiffs’ story. Each count represents
a separate claim of either a commercial
misappropriation under section 540.08 or a
common law violation of privacy as to one of
the individual plaintiffs.
Tyne
Paragraphs 49 through 105 set out each of
the 14 counts against the defendants. These
counts are mostly conclusions of law based
on the facts alleged in paragraphs 21-48.
Tyne
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The defendants filed what is termed the “answer” to
the complaint. There, among other things, the
defendants asserted:
that their acts are protected as “speech” by the First
Amendment of the U.S. Constitution and
that the decedents names and likenesses were not
used for commercial or advertising purposes and,
therefore, the plaintiffs cold not make valid claims
under sections 540.80(1) & (3).
Tyne v. Time Warner
Time-Warner asked the trial court to grant
summary judgment in its favor. Under both
state and federal procedure, if there are no
disputed issues of fact, the judge can decide
the case based solely on the law.
That is what occurred in this case. The judge
did not submit the case to a jury because the
judge found that there were no disputed facts
for the jury to decide.
Tyne
In Tyne v. Warner, the federal district court
granted summary judgment in favor of Time
Warner.
Let’s examine the judges order.
The order was appealed to the 11th Federal
Circuit Court of Appeals in Atlanta.
Tyne
The order was appealed to the 11th Federal
Circuit Court of Appeals in Atlanta. That
court hears appeals from federal trial courts
in the states of Alabama, Georgia and
Florida.
Tyne – The Briefs on Appeal
The plaintiffs (who are called “appellants” on
appeal) appealed the case to the 11th Circuit
U.S. Court of Appeals. Examine the Briefs:
 What issues are raised by the plaintiffs on
appeal?
 Issue I concedes that there is no valid claim
IF film is protected by First Amendment.
Page 24 of Appellants’ Initial Brief.
Tyne – The Briefs on Appeal
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Note the appellants suggested certification to
Florida Supreme Court. Page 26 of
Appellants’ Initial Brief.
Appellants argue that The Perfect Storm is
not protected speech because First
Amendment does not protect knowing or
reckless false speech (pages 26-29) or
fiction disguised as truth (pages 29-34)
Tyne – the Briefs
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Issue II argues that the movie does not
qualify for “newsworthy doctrine” under
section 540.08 because of “substantial and
undisclosed fictionalization”.
How did appellants deal with the precedent
relied upon by trial court, Loft v. Fuller? (See
pages 45-48)
Tyne
On appeal, the 11th Circuit Court of Appeals
concluded that it was uncertain as to the
application of section 540.08 to the case and,
thus it certified the following question of law
to the Supreme Court of Florida:
To what extent does Section 540.08, Florida
Statutes apply to the facts of this case?
Tyne
The parties made the same arguments they had
made to the 11th Circuit.
The Florida Supreme Court set the case for “oral
argument” in which the lawyers for both the plaintiffs
and Time Warner made arguments in support of
their clients’ positions on the application of section
540.08 to the case.
In oral argument, the justices normally ask questions
of the lawyers to better understand the arguments.
Let’s watch the arguments. Notice the importance
of precedent.
Tyne
In their opinion, the Florida Supreme Court rewrote
the certified question:
DOES THE PHRASE “FOR THE PURPOSES OF
TRADE OR ANY COMMERCIAL OR
ADVERTISING PURPOSE” IN SECTION 540.08(1),
FLORIDA STATUTES, INCLUDE PUBLICATIONS
WHICH DO NOT DIRECTLY PROMOTE A
PROMOTE A PRODUCT OR SERVICE?
Tyne
The Florida Supreme Court’s holding was:
“. . .we answer the rephrased certified question in
the negative and hold that the term ‘commercial
purpose’ as used in section 540.08 (01) does not
apply to publications, including motion pictures,
which do not promote a product or service.”
Let’s examine their opinion and the dissent.