Law Commons^™

Misunderstanding Lawyers' Ethics, Monroe H. Freedman, Abbe Smith

Michigan Law Review

The title of Daniel Markovits's book, A Modern Legal Ethics, gives the impression that it is a comprehensive treatise on contemporary lawyers' ethics. The contents of the book, however, are both more limited and more expansive than the title suggests. Markovits's treatment of lawyers' ethics concerns itself with what he conceives to be the pervasive guilty conscience of practicing lawyers over their "professional viciousness" (p. 36), and how lawyers can achieve a guilt-free professional identity "worthy of ... commitment" (p. 2). Markovits's goal in the book is to "articulat[e] a powerful and distinctively lawyerly virtue" (p. 2), one that …

Fit And Functional In Legal Ethics: Developing A Code Of Conduct For International Arbitration, Catherine A. Rogers

Michigan Journal of International Law

In this Article, the author develops a methodology for prescribing the normative content of a code of ethics for international arbitration, and in a forthcoming companion article, integrated mechanisms for making those norms both binding and enforceable are proposed. In making these proposals, the author rejects the classical conception of legal ethics as a purely deontological product derived from first principles. This Article argues, instead, that ethics derive from the inter-relational functional role of advocates in an adjudicatory system, and that ethical regulation must correlate with the structural operations of the system. The fit between ethics and function, the author …

The Ethics Of Criminal Defense, William H. Simon

Michigan Law Review

A large literature has emerged in recent years challenging the standard conception of adversary advocacy that justifies the lawyer in doing anything arguably legal to advance the client's ends. This literature has proposed variations on an ethic that would increase the lawyer's responsibilities to third parties, the public, and substantive ideals of legal merit and justice.

With striking consistency, this literature exempts criminal defense from its critique and concedes that the standard adversary ethic may be viable there. This paper criticizes that concession. I argue that the reasons most commonly given to distinguish the criminal from the civil do not …

Self-Regulation Of Judicial Misconduct Could Be Mis-Regulation, Anthony D'Amato

Michigan Law Review

Judge Harry T. Edwards has written a lucid and seemingly logical plea for the judiciary to be granted exclusive self-regulation over all matters of judicial misconduct that fall short of crimes or impeachable offenses. His essay demonstrates the seriousness with which he regards misconduct that would bring shame to the federal judiciary. He believes that the judiciary as a whole is the best institution to ascertain and take measures against individual aberrant judges who are guilty of various forms of misconduct, and I have no doubt of the sincerity of his belief. Yet when we look at claims for self-regulation …

Can A Good Lawyer Be A Bad Person, Stephen Gillers

Michigan Law Review

A Review of The Good Lawyer: Lawyers' Roles and Lawyers' Ethics edited by David Luban and The Adversary System: A Description and Defense by Stephan Landsman

Private Settlement As Alternative Adjudication: A Rationale For Negotiation Ethics, Robert B. Gordon

University of Michigan Journal of Law Reform

A rule of ethics like the one proposed in this Note takes a step toward this goal. Part I explores the general nature of unethical settlement negotiation, and the inadequate responses offered by both the American Bar Association Model Code of Professional Responsibility and the American Bar Association Model Rules of Professional Conduct. Part II presents a theory for recognizing private settlement negotiation as a substantive component of the adjudicatory process, deserving of all the ethical protections afforded forensic litigation. Part III evaluates certain proposals for reform and responds to various criticisms commonly leveled against efforts to regulate private negotiation …

Ethical Problems Of An International Human Rights Law Practice, David Weissbrodt

Michigan Journal of International Law

This article examines two sources of ethical constraint on U.S. lawyers practicing international human rights law: the Model Code of Professional Responsibility (CPR or Model Code), which was adopted by the American Bar Association (ABA) in 1969, and the Model Rules of Professional Conduct (Model Rules), which were adopted in 1983. Part I establishes that these sources apply to the U.S. lawyer regardless of whether or not the lawyer is in the United States and whether or not he is acting as an attorney. Attorneys who leave the countries where they practice law and travel to other nations to observe …

The Pursuit Of A Client's Interest, Warren Lehman

Michigan Law Review

There has been recently a resurgence of interest in how the lawyer serves his client. Much of that interest has been occasioned by the indigestibility of the idea that the lawyer is, as it is said, a hired gun. There are those who think that instead the lawyer ought to act toward his client as a therapist. Others are concerned with rationalizing for the lawyer the ethical discomforts of servantship (which many might guess have been brought to the fore by Watergate). Yet others see the client as victim of a structure - represented by the lawyer - that frustrates …

Legal Ethics, Clarence Archibald Lightner

Michigan Law Review

My purpose here is a discussion of (I) the meaning of "ethics" in a professional sense, and (2) the relation to the subject of the "Canons of Ethics" of the American Bar Association. I have before me a valuable booklet1 in which the author opposes, in one chapter, "Ethical Instruction in the Schools" and, in the other chapter, he favors "Moral Instruction in the Schools." In his use of words, "ethical" means theory, a science, while "moral" means habits, an art. He persuasively opposes, therefore, the "ethical" while contending for the "moral."