Royal Talossan Bar Questions

[Munditenens Tresplet]

Is there even enough judicial activity, assuming that one of our esteemed bar members could take someone on as an apprentice, that would allow for a five-month apprenticeship?

[Sir Alexandreu Davinescu]

In 2014 and 2015, there certainly was. I don't doubt more cases will spring up in the future. And as I mentioned, this solution has the benefit of scaling to need. The more cases, the faster new lawyers can be turned out.

[Magniloqueu Épiqeu da Lhiun]

I absolutely agree on the apprenticeship. I understand what you said about the hasty decisions, and I even thought of that as I was writing it. I still believe, though, that the current system is less-than-ideal, because we still do not have a real code of conduct that is accessible to everybody immediately. The whole Bar is so dense and intransparent, nobody knows what is actually happening within.

[Viteu Marcianüs]

So... I put forth an idea for an act to amend the current scheme. Any thoughts on that?

[Sir C. M. Siervicül]

Sept 17, 2016 12:30:16 GMT -6 Viteu Marcianüs said:

Further, during the aforementioned apprenticeship, the attorney may issue a student practice order, allowing said student to practice law, but accepts all ethical and legal issues as their own, within reason, that may arise from that student's work.

This part makes me a little nervous. Maybe the contents of a student practice order would tighten up the risk some, but I'm not familiar with those (are they a NY thing?).

[Viteu Marcianüs]

Sept 18, 2016 21:14:41 GMT -6 Sir C. M. Siervicül said:

Sept 17, 2016 12:30:16 GMT -6 Viteu Marcianüs said:

Further, during the aforementioned apprenticeship, the attorney may issue a student practice order, allowing said student to practice law, but accepts all ethical and legal issues as their own, within reason, that may arise from that student's work.

This part makes me a little nervous. Maybe the contents of a student practice order would tighten up the risk some, but I'm not familiar with those (are they a NY thing?).

I based this on the concept that we have in NY. I'm sure there is something similar in other states. (see e.g., how the NY 3d Dept approaches this (805.5) www.nycourts.gov/ad3/Admissions/AdmissionsRules.html) 

I added the other part for ethical concerns. Under the MRPC, a supervisor is, more so than not, liable for ethical violations of their underlings. I had MR 5.2 and 5.3 in mind with this. To my understanding, I didn't introduce anything that isn't common in the US system.

[Sir C. M. Siervicül]

Sept 19, 2016 7:49:44 GMT -6 Viteu Marcianüs said:

I added the other part for ethical concerns. Under the MRPC, a supervisor is, more so than not, liable for ethical violations of their underlings. I had MR 5.2 and 5.3 in mind with this. To my understanding, I didn't introduce anything that isn't common in the US system.

I guess I can see that, though the draft seems to me to conflate the various paragraphs of MR 5.3. It seems to me that being held personally responsible for ethical violations of a nonattorney assistant under 5.3(c) is potentially more serious than failure to make reasonable efforts under 5.3(a). MR 5.3(c) requires that a partner have knowledge of conduct that constitutes a violation in time to take remedial action (and fail to take remedial action) for it to count as a violation by the partner. Your draft has a "within reason" limitation, which might or might not be interpreted to impose liability where MR 5.3(c) does not.

What makes me a little nervous about pure reasonableness standards is that we don't have much of a common legal culture to provide a common perspective and expectations about what kind of behavior should be considered reasonable in contexts like this. Take your comparison to the US standard, for example. We might look to MR 5.3(a) "reasonable efforts" cases for guidance about what should count as "within reason" in the context of your draft bill. But how much sense does it make for Talossa to take its cue about the appropriate level of oversight and supervision for nonattorney assistants from the US, where lawyers are generally compensated full-time professionals making use of such assistants for the benefit of their own practices?

[Viteu Marcianüs]

I understand. Nevertheless, I do think that if an apprentice is going to practice, which I think is the best way to learn, that the supervising attorney should, well, supervise.

To the best of my knowledge, we don't have clearly stated ethical rules here in Talossa (in NY, also, our rules are advisory). In terms of borrowing common law, my understanding of Talossan Law follows that where a conflict arises between Talossan and Wisconsin law, Talossan law takes precedent, but in instances where Talossan Law is non-existent, we borrow from Wisconsin law. Hence the common law of Wisconsin, provided it doesn't conflict with Talossan law, is wholly applicable anyway. If my understanding is correct (and please tell me if I'm wrong), it stands to reason that we should be taking cues from Wisconsin law, common law or statutory, anyway.

As to the reasonableness standard - perhaps the Cort could issue, as courts do anyway, guidance on how to interpret the statute. As I think we're entering a pretty interesting area that, to the best of my knowledge, perhaps hasn't played such a large role, legislative intent (providing some legislatures debate this) could also shed light on what is meant with a reasonableness standard. Also, Talossa is a common law nation; common law nations borrow from each other anyway.

How is: "Further, during the aforementioned apprenticeship, the attorney may issue a student practice order, allowing said student to practice law, but retains liablity for ethical breaches of the student apprentice if that ethical breach is causally connected the supervising attorney recklessly disregarding the actions of the attorney as it relates to the specific instance of malpractice."

This wording needs to be fixed. But a mens rea of "reckless" is pretty high, and requiring causation to a specific instance (i.e., not a general "they just didn't provide a lot of oversight") I think addresses some concerns.

[Viteu Marcianüs]

I would add that ethical concerns don't seem to be a huge issue here in Talossa. We aren't suing each other in tort or to recover fiscal damages. But I imagine an ethical violation, if we enforced them, would come in the form of censure or possible disbarment for the most egregious offenses.

[Viteu Marcianüs]

Any further thoughts from anyone? I don't want to see this issue get lost.

[Ián Tamorán S.H.]

Sept 17, 2016 12:30:16 GMT -6 Viteu Marcianüs said:

...Further, during the aforementioned apprenticeship, the attorney may issue a student practice order, allowing said student to practice law, but accepts all ethical and legal issues as their own, within reason, that may arise from that student's work....

As stated here, this could be, in my opinion, a little dangerous. A student either is a student/apprentice or makes statements/gives advice on their own behalf. The lawyer to whom the apprentice is apprenticed should not be held responsible for any of the apprentice's actions or statements unless that lawyer him/herself has issued an explicit imprimatur. If the student is just a student (and a just student) then, by definition, that student cannot pass off onto another the blame for his/her actions unless that other explicitly permits it. This follows from the statement that the student is not (yet) qualified.

If the master lawyer gives no imprimatur than he/she takes no blame. If the master lawyer does not acceded to a judgement, then that judgement has not been made, except in an advisory capacity. If, however, the master lawyer has issued/does issue an imprimatur then he/she also willingly takes on the ethical burden, and the advice or judgement stands. The master cannot (and should not) be blamed for the actions of the student if the master is not aware of those actions, or has not acceded to them.

I would suggest that this is a part of the meaning of "within reason" in V's statement.

[Viteu Marcianüs]

Sept 30, 2016 9:41:18 GMT -6 Ián Tamorán S.H. said:

Sept 17, 2016 12:30:16 GMT -6 Viteu Marcianüs said:

...Further, during the aforementioned apprenticeship, the attorney may issue a student practice order, allowing said student to practice law, but accepts all ethical and legal issues as their own, within reason, that may arise from that student's work....

As stated here, this could be, in my opinion, a little dangerous. A student either is a student/apprentice or makes statements/gives advice on their own behalf. The lawyer to whom the apprentice is apprenticed should not be held responsible for any of the apprentice's actions or statements unless that lawyer him/herself has issued an explicit imprimatur. If the student is just a student (and a just student) then, by definition, that student cannot pass off onto another the blame for his/her actions unless that other explicitly permits it. This follows from the statement that the student is not (yet) qualified.

If the master lawyer gives no imprimatur than he/she takes no blame. If the master lawyer does not acceded to a judgement, then that judgement has not been made, except in an advisory capacity. If, however, the master lawyer has issued/does issue an imprimatur then he/she also willingly takes on the ethical burden, and the advice or judgement stands. The master cannot (and should not) be blamed for the actions of the student if the master is not aware of those actions, or has not acceded to them.

I would suggest that this is a part of the meaning of "within reason" in V's statement.

I addressed this in my response and altered the language to the proposed act. Again, this is just a proposal. That being said, in the American system, a lot of jurisdictions that have modeled their ethical rules after the MPR have adopted, in some form, MR 5.2, which holds that a supervising attorney is liable when the subordinate attorney acts under their direction. This is not out-of-line with what your point or what I have said. Rather, the idea behind this clause was to ensure that student attorneys put the same work that an admitted attorney would put in. 

All of this aside, if it is undesirable to include a clause that tells potential clients that a supervising attorney will supervise, and that they can expect the same quality of work, is ultimately problematic, it can be taken out. Finally, I'm not an MC and i have no desire to be an MC. So the final wording of any changes would fall on the shoulders of a legislature who decides to introduce the bill.