[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

Problems
2-2. Martyn discovers that a valuable and brilliant associate has been charging a client
for phantom travel expenses, thereby generating money that he has used to fund a gambling
addiction. To make matters worse, the client has filed a bar complaint against Associate.
Martyn tells Fox not to worry because Associate has repaid the money and joined Gamblers
Anonymous. May Fox accept Martyn’s advice?
2-3. Fox told Associate, who was counsel of record in a matter, not to appear in court
because he wanted to “take care of the matter,” even though Fox was not admitted to
practice in the state in question. When the judge questioned Associate’s absence, Fox
replied that Associate had a medical emergency that prevented her appearance. The next
day, Fox told Associate: “The judge wants to verify your absence. Just send a letter to the
court backing me up — nobody has to know.” What should Associate do?
1. E.g., Cal. Bus. & Prof. Code § 6126 (2017); N.Y. Jud. L. § 478 (2017); Tex. Penal Code § 38.123 (2017); Va.
Code § 54.1-3904 (2017).
2. See, e.g., Disc. Counsel v. Shrode, 766 N.E.2d 597 (Ohio 2002) (nonlawyer enjoined from filing court documents
for a corporation as a “statutory agent”); Fla. Bar v. Furman, 376 So. 2d 378 (Fla. 1979) (nonlawyer enjoined from
providing legal advice about marriage dissolutions and adoptions).
3. Chambers v. NASCO, Inc., 501 U.S. 32 (1991).
4. See, e.g., Eric M. Berman, P.C. v. City of New York, 37 N.E.3d 82 (N.Y. 2015) (New York City debt-collection
ordinance, as amended to cover attorneys engaged in debt-collection activities, did not unlawfully encroach on state’s
authority to regulate attorneys because consistent with extent of court regulation over nonlegal services provided by
lawyers); Ellis v. Dep’t of Industrial Accidents, 977 N.E.2d 49 (Mass. 2012) (statute which authorizes the senior judge
of the Department of Industrial Accidents to deny or suspend the right “of any person,” including an attorney, to
“practice or appear before the department” infringes on a core judicial function in violation of the Massachusetts
Declaration of Rights); Succession of Wallace, 574 So. 2d 348 (La. 1991) (statute that provided that an estate executor
could discharge a lawyer designated in the testator’s will “only for just cause” invalid because it directly conflicted with
MR 1.16, which grants clients the right to discharge lawyers for any reason).
3. While this court does have a committee that was created to deal with the unauthorized practice of law, we have
observed that the rules creating the Supreme Court Committee on the Unauthorized Practice of Law (CUPL) make it
plain that, although the Committee is vested with the authority to investigate claims relating to the unauthorized
practice of law, . . . CUPL does not have the authority to enforce its opinions without filing a complaint in circuit
court, where it can obtain a declaration finding a person is unlawfully practicing law and an injunction to force that
person to stop the unauthorized practice. . . .
4. We have further recognized that [court appearances constitute] the practice of law. . . .
6. In its November 30, 2006 order, the circuit court found that the following forms used by Asbury were legal
documents that affected the legal rights of the consumer: (1) a retail buyer’s order; (2) the credit sale disclosure
statement; (3) the truth-in-lending statement; (4) the bill of sale; and (5) the purchaser’s order. It further found that the
following were legal documents in its subsequent order of February 12, 2008: (1) a power of attorney; (2) a warranty
contract; (3) a motor-vehicle-lease agreement; (4) a rider amending a sales contract; (5) a promissory note; and (6) a
letter of permission. Asbury does not challenge either finding by the circuit court.
7. Asbury also argues that prohibiting it from filling in blanks on routine agreements would unduly hamper
commerce and harm the public. However, our case law in no way prohibits Asbury from completing such forms for the
benefit of its customers; it simply prohibits Asbury from charging a fee for doing so.
1. ACLU of Indiana v. Individual Members of the Indiana State Bd. of Law Examiners, 2011 WL 4387470 (S.D.
Ind.).
2. Courts look to the timing, number, and nature of the convictions as well as the applicant’s recognition of the
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