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.

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.

Regulation of Lawyers

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.”


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


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.


(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.

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?

Hypothetical (continued)


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.

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.


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.


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.


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.

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

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?


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.


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.

In civil cases, there is no constitutional right to a lawyer.

Representing the Poor

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.”

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

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 . . . .

FederalUS Supreme

Court

11th Circuit Court of Appeal

In Atlanta

Federal DistrictCourt in Tampa

Florida

Florida SupremeCourt

District CourtsOf Appeal

Trial Court

Tyne’s Path in the Courts

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

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

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

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)

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

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.

Legal Systems of the USA

Documents

Transcript of Legal Systems of the USA