Digital Commons Network^™

Mandatory Legal Malpractice Insurance: Exposing Lawyers' Blind Spots, Susan S. Fortney

Susan S. Fortney

The legal landscape for lawyers’ professional liability in the United States is changing. In 2018, Idaho implemented a new rule requiring that lawyers carry legal malpractice insurance. The adoption of the Idaho rule was the first move in forty years by a state to require legal malpractice insurance since Oregon mandated lawyer participation in a malpractice insurance regime. Over the last two years, a few states have considered whether their jurisdictions should join Oregon and Idaho in requiring malpractice insurance for lawyers in private practice. To help inform the discussion, the article examines different positions taken in the debate on …

Ethics 20/20 Successfully Achieved Its Mission: It "Protected, Preserved, And Maintained", James E. Moliterno

James E. Moliterno

The legal profession tends to look inward and backward when faced with crisis and uncertainty. The legal profession could make greater advances by looking outward and forward to find in society and culture the causes of and connections with the legal profession’s crises. Doing so would allow the profession to grow with society, solve problems with rather than against the flow of society, and be more attuned to the society the profession claims to serve.

Rise Of The Robot Lawyers?, Milan Markovic

Milan Markovic

The advent of artificial intelligence has provoked considerable speculation about the future of the American workforce, including highly educated professionals such as lawyers and doctors. Although most commentators are alarmed by the prospect of intelligent machines displacing millions of workers, this is not so with respect to the legal sector. Media accounts and some legal scholars envision a future where intelligent machines perform the bulk of legal work, and legal services are less expensive and more accessible. This future is purportedly at hand as lawyers struggle to compete with technologically savvy alternative legal service providers.

This Article challenges the notion …

International Developments And Their Impact On U.S. Lawyer Regulation, Laurel S. Terry

Laurel S. Terry

Anti-Money Laundering (Aml) Legal Profession Related Resources (Updated March 2019), Laurel S. Terry

Laurel S. Terry

The Relevance Of Fatf’S Recommendations And Fourth Round Of Mutual Evaluations To The Legal Profession, Laurel S. Terry, José Carlos Llerena Robles

Laurel S. Terry

Lawyer Regulation, Aml, And Fatf's Mutual Evaluations, Laurel S. Terry, José Carlos Llerena Robles

Laurel S. Terry

The Legal Ethics Of The Two Kingdoms, Thomas L. Shaffer

Thomas L. Shaffer

No abstract provided.

Business Lawyers, Baseball Players, And The Hebrew Prophets, Thomas L. Shaffer

Thomas L. Shaffer

This article is a reflection on the ethics of practiving law for business, building on the career of Scott Boras, who acts as agent and lawyer for professional baseball players. The reflection wonders at the clout corporate lawyers have over their clients, mentioning, of course, some personal experiences (back before the invention of moveable type) from the author's two years in a large business-oriented law firm, as well as on Mr. Boras's significant influence in the baseball world. The object, finally, is ethical reflection on such things as the particular a lawyer has when she in in house rather than …

When Bad Guys Are Wearing White Hats, Catherine A. Rogers

Catherine Rogers

Allegations of ethical misconduct by lawyers have all but completely overshadowed the substantive claims in the Chevron case. While both sides have been accused of flagrant wrongdoing, the charges against plaintiffs’ counsel appear to have captured more headlines and garnered more attention. The primary reason why the focus seems lopsided is that plaintiffs’ counsel were presumed to be the ones wearing white hats in this epic drama. This essay postulates that this seeming irony is not simply an example of personal ethical lapse, but in part tied to larger reasons why ethical violations are an occupational hazard for plaintiffs’ counsel …

Why U.S. Jurisdictions Should Adopt ‘Regulatory Objectives’ For The Legal Profession, Laurel S. Terry

Laurel S. Terry

As a Lichtenstein Distinguished Lecturer, Professor Terry was asked to write an article for the Hofstra Law Review. Her article, cited below, may be downloaded from the link at the top of the page. Laurel S. Terry, Globalization and the ABA Commission on Ethics 20/20: Reflections on Missed Opportunities and the Road Not Taken, 43 Hofstra L. Rev. 95 (2014) The ABA Commission on Ethics 20/20 was established in order to “perform a thorough review of the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation in the context of advances in technology and global legal …

Statesman Or Scribe? Legal Independence And The Problem Of Democratic Citizenship, Aziz Rana

Aziz Rana

No abstract provided.

Making Civility Democratic, Amy R. Mashburn

Amy R. Mashburn

Historically, the concept of civility has been bound up with undemocratic notions of hierarchy and deference. Using insights from studies of civility by social psychologists, linguists, sociologists, historians, and political theorists, this article advances the theory that the legal profession’s self-consciously isolating professionalism ideology allows judges and disciplinary tribunals to apply deference-based notions of civility in their decisions to sanction lawyers. This theory would predict that the lawyers most likely to be sanctioned for incivility and rudeness are those from whom society expects the most deference. To test this theory, the author conducted an empirical study of every available case …

Admitting Foreign-Trained Lawyers In States Other Than New York: Why It Matters, Laurel S. Terry

Laurel S. Terry

The Monopoly Myth And Other Tales About The Superiority Of Lawyers, Leslie C. Levin

Leslie C. Levin

The legal profession’s control of much of the market for legal services is justified by the claim that only licensed lawyers can effectively and ethically represent clients. This article challenges that claim. A review of a number of studies suggests that experienced nonlawyers can provide competent legal services in certain contexts and in some cases, can seemingly do so as effectively as lawyers. There is also little evidence that lawyers’ legal training, the bar admission requirements, or lawyers’ psychological characteristics make them more trustworthy than nonlawyer legal services providers. The article considers some recent initiatives, such as Washington’s approval of …

Taking Back The Legal Profession, Lee T. Nutini

Lee T Nutini

A reaction piece addressing the current economic and market crisis related to failing law school education and the lawyer bubble.

Globalization And The Aba Commission On Ethics 20/20: Reflections On Missed Opportunities And The Road Not Taken, Laurel S. Terry

Laurel S. Terry

The ABA Commission on Ethics 20/20 was established in order to “perform a thorough review of the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation in the context of advances in technology and global legal practice developments.” The thesis of this article is that the Commission was much more successful with the “technology” aspect of its work than it was with the globalization aspect of its work. This article offers an explanation for these differing levels of success and identifies an alternative path the Commission might have taken that might have led to greater success …

Forming An Agenda - Ethics And Legal Ethics, Robert E. Rodes

Robert Rodes

The law profession is unique in the scope of the mandate it gives those within it to intervene in other people's affairs. As a result of this unique power of intervention, lawyers encounter a number of unique problems. This paper elucidates upon, and applies, the moral standards and intuitions to be used in approaching these problems. It argues that we should form our consciences in dialogue with our clients and that once they are formed we must follow them and limit our representation accordingly. If lawyer and client cannot agree on an agenda with which both are comfortable, the lawyer …

Getting Real About Globalization And Legal Education: Potential And Perspectives For The U.S., Carole Silver

Carole Silver

This article addresses whether US law schools are preparing their JD students to work in the global environment that many - if not most – law graduates will encounter. It begins by considering the significance of globalization for legal education, drawing on research analyzing its influence on legal practice as well as on higher education. It then explores possible settings and opportunities for learning to work in a global environment. For the vast majority of students whose learning must occur in the US, the presence of international students in their law school offers the potential for creating a global learning …

Gender And Global Lawyering: Where Are The Women?, Steven Boutcher, Carole Silver

Carole Silver

The dual processes of diversity and globalization are responsible for significant growth among U.S. law firms: female lawyers account for much of the increase in headcount in large law firms over the last several decades, and lawyers educated and licensed in jurisdictions outside of the U.S. have helped U.S.-based law firms expand internationally. This article draws on data gathered from lawyer biographies to examine the relationship between gender diversity and globalization, and considers whether career strategies that involve the international movement of lawyers are equally powerful for women and men. Our research suggests that gender inequality is not erased by …

A Study Of The Relationship Between Bar Admissions Data And Subsequent Lawyer Discipline, Leslie C. Levin, Christine Zozula, Peter Siegelman

Leslie C. Levin

The research reported here uses information from the admissions files of lawyers admitted to the Connecticut bar from 1989 to 1992 to compare those who were disciplined with those who were not disciplined. It analyzes information reported during the bar admissions process that may predict later lawyer misconduct including, inter alia, prior criminal history, problem credit history, prior employment history, academic misconduct, substance abuse, and psychological history. The study reveals that many of the responses on the admissions application are statistically associated with an elevated risk of future discipline. Nevertheless, these variables nevertheless make very poor predictors of subsequent misconduct. …

The Cost Of Law: Promoting Access To Justice Through The (Un)Corporate Practice Of Law, Gillian K. Hadfield

Gillian K Hadfield

The U.S. faces a mounting crisis in access to justice. Vast numbers of ordinary Americans represent themselves in routine legal matters daily in our over-burdened courts. Obtaining ex ante legal advice is effectively impossible for almost everyone except larger corporate entities, organizations and governments. In this paper, I explain why, as a matter of economic policy, it is essential that the legal profession abandon the prohibition on the corporate practice of law in order to remedy the access problem. The prohibitions on the corporate practice of law rule out the use of essential organizational and contracting tools widely used in …

Reflections On U.S. Policies Regarding 'Effective Regulation And Discipline' And Foreign Lawyer Mobility: Has The Time Come To Talk About The Elephant In The Room?, Laurel S. Terry

Laurel S. Terry

The ABA has adopted four model policies that address, in one way or another, the issue of foreign lawyer mobility. These policies are the ABA Model Foreign Legal Consultant Rule, which is commonly known as the FLC rule, the ABA Model Rule for Temporary Practice by Foreign Lawyers, which is commonly known as the FIFO rule, ABA Model Rule of Professional Conduct 5.5, which permits foreign lawyers to serve as in-house counsel, and the ABA Model Rule on Pro Hac Vice Admission. All four of the ABA’s foreign lawyer mobility recommendations include a requirement that the mobile foreign lawyer is …

Transnational Legal Practice (International)[2010-2012], Laurel S. Terry

Laurel S. Terry

This article covers three years of Transnational Legal Practice developments outside of the US. (It is the companion piece to 47 Int'l Law. 499 (2013) which discusses US developments.) This article discusses the approval of an Alternative Business Structure licensing system by the UK Solicitors Regulation Authority and its subsequent issuance of ABS licenses. The second section reviews the emergence of the “Troika” as a new regulatory influence in Europe, citing as an example the joint ABA-CCBE letter to the IMF. (The Troika refers to the International Monetary Fund, the European Central Bank, and the European Commission.) The third section …

Municipal Ethics Remain A Hot Topic In Litigation: A 1999 Survey Of Issues In Ethics For Municipal Lawyers, Patricia E. Salkin

Patricia E. Salkin

No abstract provided.

Book Review: Stacey Steele And Kathryn Taylor, Eds., Legal Education In Asia: Globalization, Change And Contexts, Carole Silver

Carole Silver

U.S. legal education is under fire from all sides. Travel outside of the U.S., however, and the U.S. often is a model for reform efforts, even the standard against which legal education programs in much of the rest of the world measure themselves. In Legal Education in Asia, Stacey Steele, Kathryn Taylor and their co-authors offer insight into globalization’s influence on legal education. They find that globalization has sharpened the peripheral vision of reformers by encouraging them to consider the approaches followed elsewhere to educating lawyers as well as the role lawyers play in society. Their analysis also identifies the …

Why Context Matters, Lynn Mather, Leslie C. Levin

Leslie C. Levin

No abstract provided.

Rehabilitating Lawyers: Perceptions Of Deviance And Its Cures In The Lawyer Reinstatement Process, Bruce A. Green, Jane Moriarty

Jane Campbell Moriarty

State courts’ approach to lawyer admissions and discipline has not changed fundamentally in the past century. Courts still place faith in the idea that “moral character” is a stable trait that reliably predicts whether an individual will be honest in any given situation. Although research in neuroscience, cognitive science, psychiatry, research psychology, and behavioral economics (collectively “cognitive and social science”) has influenced prevailing concepts of personality and trustworthiness, courts to date have not considered whether they might change or refine their approach to “moral character” in light of scientific insights. This Article examines whether courts should reevaluate how they decide …

Human Flotsam, Legal Fallout: Japan's Tsunami And Nuclear Meltdown, Robert B. Leflar, Ayako Hirata, Masayuki Murayama, Shozo Ota

Robert B Leflar

We report on our field research in Fukushima Prefecture in July 2011. We interviewed legal professionals and community leaders in Fukushima City and in towns inundated by the March 2011 tsunami and within a few kilometers of Fukushima No. 1 nuclear reactor. We catalogued many of the extensive variety of problems faced by Fukushima residents, both evacuees and those who remained in their homes. Many of these problems, both legal and non-legal, arose from government actions as the disaster unfolded and afterwards, including the administration of the initial program for provisional compensation for disaster victims. We learned that in the …

Misbehaving Lawyers: Cross Country Comparisons, Leslie C. Levin

Leslie C. Levin

Lawyer misbehavior occurs in every country and regulators often struggle to address it effectively. This article looks at six case studies of disciplined lawyers in Australia, Canada, the Netherlands, New Zealand and the United Kingdom. It notes the similarities in the cases and to disciplined lawyers previously described in case studies in the United States. In particular, these case studies involved male lawyers predominantly working in solo or small firms who were insufficiently exposed to positive professional values early in practice. They were willing to lie to achieve their goals and were motivated, at least in part, by money. The …