Digital Commons Network^™

Business Law And Lawyering In The Wake Of Covid-19, Joan Macleod Heminway

Scholarly Works

The public arrival of COVID-19 (the novel coronavirus 2019) in the United States in early 2020 brought with it many social, political, and economic dislocations and pressures. These changes and stresses included and fostered adjustments in business law and the work of business lawyers. This article draws attention to these COVID-19 transformations as a socio-legal reflection on business lawyering, the provision of legal services in business settings, and professional responsibility in business law practice. While business law practitioners, like other lawyers, may have been ill-prepared for pandemic lawyering, we have seen them rise to the occasion to provide valuable services, …

Of Prosecutors And Prejudice (Or "Do Prosecutors Have An Ethical Obligation Not To Say Racist Stuff On Social Media?"), Alex B. Long

Scholarly Works

Over the past few years, there have been numerous news stories about prosecutors posting racially inflammatory content on their social media accounts. There have also been several incidents in recent years in which prosecutors have commented on matters of public concern on social media in a way that is not overtly racist but nonetheless raises legitimate concerns over the prosecutors’ integrity and appreciation of the special role that prosecutors play. Concerns over the extent to which prosecutors bring their personal biases into the courtroom have only increased in recent years and have contributed to the doubts as to the overall …

Disciplinary Regulation Of Prosecutorial Discretion: What Would A Rule Look Like?, Samuel J. Levine

Scholarly Works

This Essay is the third part of a larger project examining the potential role of professional discipline in the regulation and supervision of prosecutors’ charging decisions. The first two parts of the project argued that courts have both the authority and the ability to exercise effective disciplinary review of charging decisions through the adoption of ethics rules and their enforcement in the disciplinary process. This Essay takes the next step in the project, considering the nature of rules that courts might adopt, by exploring potential rules targeting two improprieties: arbitrary and capricious charging decisions, and discriminatory charging decisions.

Professional Responsibility In An Age Of Alternative Entities, Alternative Finance, And Alternative Facts, Joan Macleod Heminway

Scholarly Works

Business lawyers in the United States find little in the way of robust, tailored guidance in most applicable bodies of rules governing their professional conduct. The relative lack of professional responsibility and ethics guidance for these lawyers is particularly troubling in light of two formidable challenges in business law: legal change and complexity. Change and complexity arise from exciting developments in the industry that invite — even entice — the participation of business lawyers.

This essay offers current examples from three different areas of business law practice that involve change and complexity. They are labeled: “Alternative Entities,” “Alternative Finance,” and …

The Lawyer As Public Figure For First Amendment Purposes, Alex B. Long

Scholarly Works

Should lawyers be treated as public figures for purposes of defamation claims and, therefore, be subjected to a higher evidentiary standard of actual malice under the Supreme Court’s decision in New York Times v. Sullivan? The question of whether lawyers should be treated as public figures raises broad questions about the nature of defamation law and the legal profession. By examining the Supreme Court’s defamation jurisprudence through the lens of cases involving lawyers as plaintiffs, one can see the deficiencies and inconsistencies in the Court’s opinions more clearly. And by examining the Court’s defamation cases through this lens, one can …

Designing A Solo And Small Practice Curriculum, Meredith R. Miller

Scholarly Works

There is a reality commonly ignored by the curriculum in most law schools: the largest segment of law graduates will eventually be solo or small firm practitioners. Even before the Great Recession, nearly two thirds of lawyers in the United States practiced in solo or small firms. Since 2008, trends show an increase in the number of recent law graduates that “hang a shingle.” According to a 2012 report of the American Bar Association, about three-quarters of lawyers in the United States work in private practice. Of those attorneys, about seventy percent are in solo or small firms. Many find …

The Law And The “Spirit Of The Law” In Legal Ethics, Samuel J. Levine

Scholarly Works

This article aims to explore the notion of the lawyer’s ethical responsibility to go “beyond” the letter of the law and to comply with the “spirit” or “purpose” of the law. The article suggests that, notwithstanding its promotion of admirable principles and goals, a spirit of the law model may prove inconsistent with basic legal and ethical obligations of lawyers. The lawyer’s duties as fiduciary, as agent, and as zealous advocate, responsible for representing the best interests of the client, preclude the lawyer from focusing on the spirit and purpose of the law rather than on the aims of the …

"Nudging" Better Lawyer Behavior: Using Default Rules And Incentives To Change Behavior In Law Firms, Nancy B. Rapoport

Scholarly Works

This article examines how incentives in law firms can affect lawyer behavior and suggests some possible changes to incentive structures and default rules that might improve the ethical behavior of lawyers.

In the changing landscape of law practice — where law firm profits are threatened by such changes as increased pressure from clients to economize and the concomitant opportunities for clients to shop around for the most efficient lawyers — are there ways to change how things are done in law firms so that firms can provide more efficient and ethical service? This article suggests that an understanding of cognitive …

The Client Who Did Too Much, Nancy B. Rapoport

Scholarly Works

Using Hitchcock's MacGuffin as a theme, I discuss the dynamics between client and lawyer when the client so obsesses over the issue driving him that he persuades (or attempts to persuade) the lawyer to do things that are inadvisable from the lawyer's point of view.

Behavioral Legal Ethics, Jean R. Sternlight, Jennifer K. Robbennolt

Scholarly Works

Complaints about lawyers’ ethics are commonplace. While it is surely the case that some attorneys deliberately choose to engage in misconduct, psychological research suggests a more complex story. It is not only “bad apples” who are unethical. Instead, ethical lapses can occur more easily and less intentionally than we might imagine. In this paper, we examine the ethical “blind spots,” slippery slopes, and “ethical fading” that may lead good people to behave badly. We then explore specific aspects of legal practice that can present particularly difficult challenges for lawyers given the nature of behavioral ethics - complex and ambiguous ethical …

The Case For Value Billing In Chapter 11, Nancy B. Rapoport

Scholarly Works

This article explores the forces contributing to very high professional fees in large Chapter 11 cases and suggests that lawyers might want to consider valuing their services in ways other than the traditional billable hour approach.

Professionalism And Matthew Shardlake, Alex B. Long

Scholarly Works

This Essay/Book Review examines the Matthew Shardlake series by C.J. Sansom. In particular, it examines the question of whether the sixteenth-century fictional lawyer Shardlake can serve as a role model for twenty-first-century lawyers, both in terms of his ethics and his professionalism. An examination of the Shardlake series as a whole yields some uncertain answers, both as to Shardlake and as to what it means to be an ethical and professional lawyer. This is ultimately part of what makes the series so enjoyable for lawyers.

The Tax Man's Ethics: Four Of The Hardest Ethical Questions For An Irs Lawyer, Michelle M. Kwon

Scholarly Works

The traditional approach to legal ethics often is characterized to mean that lawyers must zealously advocate for their clients’ objectives tempered only by the bounds of the law. In contrast to the traditional approach, the public interest approach to legal ethics extends a government lawyer’s professional ethical duties from the agency client to the public at large to further the public interest. Commentators, in advocating either the traditional approach or the public interest approach to government lawyering, disagree about whether a government lawyer owes some sort of duty to the public and if so, the nature and scope of that …

Through Gritted Teeth And Clenched Jaw: Court-Initiated Sanctions In Bankruptcy Opinions, Nancy B. Rapoport

Scholarly Works

This article discusses what types of behavior can trigger a bankruptcy court's initiation of sanctions against an attorney.

Rethinking Professional Fees In Chapter 11 Cases, Nancy B. Rapoport

Scholarly Works

This article discusses the many ways in which professional fees can spiral out of control in chapter 11 bankruptcy cases and evaluates the possible ways to monitor and control those fees.

Relationships, The Rules Of Professional Conduct And Land Use: Ethical Quagmires For Land Use Attorneys, Patricia E. Salkin

Scholarly Works

This article begins to fill the void by introducing the application of the various Rules of Professional Conduct, as adopted by the specific opining jurisdiction, through a review of the relevant reported opinions of the various committees and sometimes courts, in the land use context. Part I discusses the challenges that arise for lawyers vis-à-vis their clients in the land use context. This is followed by a discussion in Part II of the ethics and professionalism issues that confront lawyers who serve on local boards.

Debtor Counsel's Fiduciary Duty: Is There A Duty To Rat In Chapter 11?, Nancy B. Rapoport, C. R. Bowles

Scholarly Works

This article discusses what duties counsel to the debtor-in-possession owe (and to whom they owe these duties) when the debtor-in-possession wants to do something illegal or just plain dumb.

Swimming With Shark, Nancy B. Rapoport

Scholarly Works

In this essay, Nancy Rapoport discusses how Sebastian Stark (played by James Woods) seduces the lawyers on his legal team into ignoring legal ethics in favor of Stark's own version of ethics. Stark -- a criminal defense lawyer who becomes a deputy district attorney -- bends the ethics rules past the breaking point in order to put bad guys behind bars. His team of lawyers knows right from wrong but follows Stark's lead in breaking the rules anyway.

Drawing The Ethical Line: Controversial Cases, Zealous Advocacy, And The Public Good: Foreword, Lonnie T. Brown

Scholarly Works

Are lawyers handling controversial matters justified in being myopically fixated upon achieving their client's or the state's objectives, whatever the costs? Or is there a point at which the interests of the system or perhaps even the public must take precedence, requiring that unbridled zeal and loyalty take a backseat? Such fascinating questions were skillfully examined during the 10th Annual Legal Ethics and Professionalism Symposium, "Drawing the Ethical Line: Controversial Cases, Zealous Advocacy, and the Public Good." The published remarks and the articles that follow provide a glimpse into the difficult ethical line-drawing that was engaged in by a distinguished …

(Almost) Everything We Learned About Pleasing Bankruptcy Judges, We Learned In Kindergarten, Nancy B. Rapoport, Roland Bernier Iii

Scholarly Works

In this essay, we demonstrate that most ethics violations (at least the ones that irritate bankruptcy judges) are also violations of simple rules of behavior that people should have learned in kindergarten.

Do Judges Systematically Favor The Interests Of The Legal Profession?, Benjamin H. Barton

Scholarly Works

This Article answers this question with the following jurisprudential hypothesis. Many legal outcomes can be explained, and future cases predicted, by asking a very simple question: is there a plausible result in this case that will significantly affect the interests of the legal profession (positively or negatively)? If so, the case will be decided in the way that offers the best result for the legal profession.

The article presents theoretical support from the new institutionalism, cognitive psychology and economic theory. The Article then gathers and analyzes supporting cases from areas as diverse as constitutional law, torts, professional responsibility, employment law, …

"Lawyers" Not "Liars": A Modified Traditionalist Approach To Teaching Legal Ethics, Lonnie T. Brown

Scholarly Works

As attorneys, we undeniably should be faithful confidantes to, and staunch allies for, our clients, but we must also never lose sight of the fact that we are not simply client representatives; we are concurrently officers of the court and keepers of the public trust. Though I strive diligently to make my students aware of the specific ethical duties owed to clients, I always stress even more intently the importance of these latter two components of their professional obligation. They are what set the practice of law apart from other occupations, and they are what should serve to inspire us …

The Curious Incident Of The Law Firm That Did Nothing In The Night-Time, Nancy B. Rapoport

Scholarly Works

This essay argues that organizations (here, the Milbank, Tweed law firm) often ignore obviously bad behavior by their employees because of various psychological and sociological factors that prevent them from recognizing the behavior as bad in the first place.

The Relationship Between Defense Counsel, Policyholders, And Insurers: Nevada Rides Yellow Cab Toward "Two-Client" Model Of Tripartite Relationship. Are Cumis Counsel And Malpractice Claims By Insurers Next?, Jeffrey W. Stempel

Scholarly Works

It happens constantly in civil litigation. An insurance company hires a lawyer to defend its policyholder from a third party’s claim of injury. But just who is the lawyer’s “client?” Is it the policyholder who is the named defendant in the case and is “represented” in court proceedings? Or is it the insurer who, in most cases, selected the attorney, pays the attorney, supervises the litigation, and has (by the terms of the liability insurance policy) the right to settle the case, even over the objections of the policyholder? Ordinarily, the liability insurer has both the duty to defend a …

Lawyer Professional Responsibility In Litigation, Jeffrey W. Stempel

Scholarly Works

A perennially-vexing litigation issue concerns the limits of permissible attorney argument. More than a few lawyers have been tripped up by the occasional fuzziness of the line between aggressive advocacy and improper appeals to passion or prejudice. See Craig Lee Montz, Why Lawyers Continue to Cross the Line in Closing Argument: An Examination of Federal and State Cases, 28 Ohio N.U. L. Rev. 67 (2001-2002)(problem of violations results from lack of uniformity and clarity of ground rules as well as errors of counsel). In Cohen v. Lioce, 149 P.3d 916 (Nev. 2006) the Nevada Supreme Court both provided significant guidance …

Why Not A Justice School? On The Role Of Justice In Legal Education And The Construction Of A Pedagogy Of Justice, Peter L. Davis

Scholarly Works

Why are law schools not named schools of justice, or, at least, schools of law and justice? Of course, virtually every law school will reply that this is nit-picking; all claim to be devoted to the study of justice. But our concern is not so easily dismissed. The names of institutions carry great significance; they deliver a political, social, or economic message. . . This Article contends that not only do law schools virtually ignore justice – a concept that is supposed to be the goal of all legal systems – they go so far as to denigrate it and …

The Business Of Law And Tortious Interference, Alex B. Long

Scholarly Works

One frustrating feature of the interference torts is the difficulty in defining precisely when an intentional interference becomes "tortious." While there has been no shortage of proposals to better define the interference torts, there is widespread uncertainty and dissatisfaction concerning the current state of the law. Attorneys have not been spared from the confusion. However, it is on the business side of the practice of the law, rather than the practice side, that attorneys are more likely to actually be held liable for tortious interference. In general, a tortious interference claim is a viable option for an attorney who feels …

Exceptions, Lawrence Raful

Scholarly Works

No abstract provided.

The Aba, The Rules, And Professionalism: The Mechanics Of Self-Defeat And A Call For A Return To The Ethical, Moral, And Practical Approach Of The Canons, Benjamin H. Barton

Scholarly Works

In this Article I argue that there was once a single animating goal for American legal ethics - providing moral, ethical, and practical guidance on practicing law. Throughout the 20th Century lawyer regulators worked to bisect that goal, and we now have two quite distinct, and frequently conflicting goals. On the one hand, bar regulators pushed ceaselessly to narrow the regulations governing lawyer conduct to black-letter minimum, and eliminated the broadly moral from the Rules. On the other hand, bar regulators sought to raise lawyers' ethical and moral standards through professionalism and other non-mandatory efforts.

These bisected goals clash in …

Commitment And Responsibility: Modeling And Teaching Professionalism Pervasively, Marjorie A. Silver

Scholarly Works

No abstract provided.