Law Commons^™

Why The Dobbs Draft Release Makes It Tougher To Teach Legal Ethics, Lynne Marie Kohm

St. Mary's Journal on Legal Malpractice & Ethics

No abstract provided.

Ethics At The Speed Of Business, James A. Doppke Jr.

DePaul Business & Commercial Law Journal

This paper discusses several ways in which the Illinois Rules of Professional Conduct, and the Illinois Supreme Court Rules, construct barriers that prevent lawyers and businesses from accomplishing reasonable commercial goals. Often, those barriers arise from outdated concepts, or terminology that does not reflect current business realities. The paper argues for the amendment of specific Rules to enhance lawyers’ and businesses’ respective abilities to conduct their affairs more efficiently, without sacrificing public protection in the process.

Lawyers' Duty Of Confidentiality And Clients' Crimes And Frauds, Douglas R. Richmond

Georgia State University Law Review

Lawyers’ ethical duty of confidentiality is a fundamental aspect of the attorney-client relationship. It is also an extraordinarily broad duty; indeed, it is broader than the attorney-client privilege. So extensive a duty of confidentiality is necessary to encourage clients to trust their lawyers and to be candid with them. The public also benefits from lawyers’ duty of confidentiality, as a comment to Rule 1.6 of the ABA’s Model Rules of Professional Conduct explains: “Almost without exception, clients come to lawyers in order to determine their rights and what is, in the complex of laws and regulations, deemed to be legal …

Reconceiving Ethics For Judicial Law Clerks, Gregory Bischoping

St. Mary's Journal on Legal Malpractice & Ethics

Judicial law clerks hold a unique and critical position in our legal system. They play a central part in the functioning of the judiciary, oftentimes writing the first draft of their judge’s opinions and serving as their trusted researcher and sounding board. Moreover, they are privy to the many highly confidential processes and private information behind the important work of the judiciary. It stands to reason the comprehensive set of ethical duties that bind the world of lawyers and judges should also provide guidance for judicial law clerks. The most important among those ethics rules is a duty of confidentiality. …

Wrongful Incarceration Causes Substantial Bodily Harm: Why Lawyers Should Be Allowed To Breach Confidentiality To Help Exonerate The Innocent, Vania M. Smith

Catholic University Law Review

The Model Rules of Professional Conduct (MRPC) governs the conduct of lawyers and provides the framework for how individual states and territories craft their rules. Rules regarding confidentiality have been central through the many iterations of these rules since their inception. Client confidentiality protections are critical to establishing and maintaining the public trust in the profession. Rule 1.6 of the MRPC gives a lawyer the opportunity to divulge a client confidence under varying circumstances, including the prevention of “substantial bodily harm”. To date, this has not resulted in a wide interpretation that this exception includes wrongful incarceration. This article seeks …

“Listserv Lawyering”: Definition And Exploration Of Its Utility In Representation Of Consumer Debtors In Bankruptcy And In Law Practice Generally, Josiah M. Daniel Iii

St. Mary's Journal on Legal Malpractice & Ethics

The author examines the communications and activities of bankruptcy lawyers participating in the listserv of the Bankruptcy Law Section of the State Bar of Texas and finds that those activities constitute a previously unrecognized form of “lawyering,” which he has defined as the work of lawyers in and through the legal system to accomplish the objectives of their clients. Review of specific postings about legal issues and practical problems by Texas bankruptcy lawyers, whose practices are primarily on behalf of individual debtors in cases under Chapters 7 and 13 of the Bankruptcy Code, and observations about the voluntary, collaborative, and …

Securing Technological Privacy: Modernizing The Texas Disciplinary Rules Of Professional Conduct To Protect Electronic Data, Ashley "Nikki" Vega

St. Mary's Journal on Legal Malpractice & Ethics

This comment explains how and why the Texas Disciplinary Rules of Professional Conduct (the “Texas Disciplinary Rules”) should be updated to reflect the modernization of technology. Lawyers must keep abreast of changes in the law and its practices; including those which are technological in nature. The American Bar Association (the “ABA”) recently amended the “technology provisions” of its Model Rules of Professional Conduct (the “Model Rules”); namely Rule 1.1 “Competence” and Rule 1.6 “Confidentiality of Information” in order to keep up with the benefits and risks associated with technology in the legal profession. Additionally, over half of all jurisdictions have …

Ethical Limitations On Lawyer-To-Lawyer Online Consultations Regarding Pending Cases, Robert Derner

St. Mary's Journal on Legal Malpractice & Ethics

This comment explains how and when lawyer-to-lawyer consultations are permitted in the online world. In all lawyer-to-lawyer consultations, but especially with the online variety, a lawyer must avoid violating the principle of confidentiality when consulting other lawyers about client matters. While in-person lawyer-to-lawyer consultations have been commonplace in the legal profession for decades, the rise of listservs and social media networks has caused many lawyers to seek advice from colleagues on the Internet.

In considering online lawyer-to-lawyer consultations, there are two major issues. Firstly, a lawyer must determine whether the jurisdiction in which he or she practices permits online lawyer-to-lawyer …

Egyptian Confidential: An Analysis Of Confidentiality In The Egyptian Arbitration System, Kayla Snowberger

Arbitration Law Review

No abstract provided.

Monroe Freedman And The Morality Of Dishonesty: Multidimensional Legal Ethics As A Cold War Imperative, Norman I. Silber

Hofstra Law Review

This Article reaches into the personal history of Monroe Freedman, a pioneer in multi-dimensional legal ethics, to advance an explanation for his advocacy and his signal contributions to legal ethics - particularly his landmark article of 1966, Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, where he inquired into situations in which candor might not be either moral or professional. It argues that his outspoken defense of lying as sometimes necessary and even moral behavior in the adversary system should be understood as an outgrowth of his early religious perspective about the nature of moral obligations, as …

An Analysis Of Austin Lawyers Guild V. Securus Technologies, Inc.: The Constitutional And Ethical Implications Of Using Illegally Recorded Attorney–Client Telephone Conversations As Derivative Evidence, Christina Santos

St. Mary's Journal on Legal Malpractice & Ethics

For the justice system to operate effectively, privileged communications between an attorney and his or her client should be afforded the utmost and strictest protections. Intrusion by law enforcement upon these communications severely diminishes the confidence and candor needed in the attorney-client relationship. Although the United States Supreme Court recognizes prosecutorial immunity and generally leaves prosecutorial discipline to state bar authorities, the Court has long held that the attorney-client privilege is needed for attorneys to effectively advocate on behalf of their clients.

Austin Lawyers Guild v. Securus Technologies, Inc., a civil class-action lawsuit, is currently pending before the United …

The Lawyer As Lover: Are Courts Romanticizing The Lawyer-Client Relationship?, Bruce A. Green

Touro Law Review

No abstract provided.

Breaking The Silence: The Veterinarian’S Duty To Report, Martine Lachance

Animal Sentience

Animals, like children and disabled elders, are not only the subjects of abuse, but they are unable to report and protect themselves from it. Veterinarians, like human physicians, are often the ones to become aware of the abuse and the only ones in a position to report it when their human clients are unwilling to do so. This creates a conflict between professional confidentiality to the client and the duty to protect the victim and facilitate prosecution when the law has been broken. I accordingly recommend that veterinarian associations make reporting of abuse mandatory.

Psychotherapist-Patient Privilege; Patient's Dangerous Condition; Confidentiality; Legal Duty To Warn Potential Victim; Tarasoff V. Regents Of University Of California, Robert E. Burns

Akron Law Review

In placing a legal duty to warn on the psychotherapist, the California supreme court followed the modern trend in tort law by recognizing the subordination of the patient's interest in the confidentiality of the psychotherapist-patient relationship to both the public interest, and to what the court determines to be the patient's own best interest. Under these confined circumstances the therapist acquires a limited right to disclose pertinent information to any person who may have a legitimate interest in his patient's health.' However, certain restrictive guidelines have been placed on the disclosure of such information. In Berry v. Moench, the Utah …

How Do You Rate Your Lawyer? Lawyers’ Responses To Online Reviews Of Their Services, Laurel A. Rigertas

St. Mary's Journal on Legal Malpractice & Ethics

With the proliferation of opportunities for consumers to review a variety of services on the Internet, it is only a matter of time until more clients review their attorneys’ services on the Internet. This raises a variety of potential ethical and public policy issues. First, what can attorneys do to try to control their online reputations? Second, if a client posts negative comments about an attorney’s services on a public Internet forum, can the attorney respond on that forum without breaching the duty of confidentiality and, if so, how? Finally, when settling a dispute with a client, may an attorney …

A Guide To Properly Using And Responding To Requests For Admission Under The Texas Discovery Rules., Robert K. Wise, Katherine Hendler

St. Mary's Law Journal

This article’s purpose is to provide a guide for properly using and responding to requests for admission under the Texas discovery rules. Requests for admission are an extremely effective discovery tool when used and responded to properly. Their use can save litigants considerable time and expense by eliminating and narrowing the issues involved in the cause of action. Often misunderstood, requests for admission are perhaps the least used of the major discovery devices available to litigants. Even though requests for admission have the potential to eliminate unnecessary proof at trial, streamline discovery and motion practice, and reduce pretrial and trial …

Keep Your “Friends” Close And Your Enemies Closer: Walking The Ethical Tightrope In The Use Of Social Media., John G. Browning

St. Mary's Journal on Legal Malpractice & Ethics

This Article will examine the ethical issues posed by lawyers’ use of social media platforms in light of the ABA Ethics Commission 20/20 changes to the Model Rules of Professional Conduct. Social networking has had a transformative effect both on the way society shares information and on the legal profession. Much of the discussion to date focuses on the discovery and use of evidence from social media sites in criminal cases and civil litigation, but attention must also be directed to the ethical quandaries posed by the legal profession’s use of social media. This Article will consider issues such as …

Lawyers And Social Media: The Legal Ethics Of Tweeting, Facebooking And Blogging, Michael E. Lackey Jr., Joseph P. Minta

Touro Law Review

No abstract provided.

Friending And Following: Applying The Rules Of Professional Conduct To Social Media, Andy Taylor

University of Arkansas at Little Rock Law Review

Despite the strong tradition in the law of not advertising for legal services, the Model Rules of Professional Conduct as well as the Arkansas Rules of Professional Conduct recognize that the interest in expanding public information about legal services trump that tradition. However, that is not the case in many states where, in some cases, lawyers have been advised to avoid certain types of interactive websites or risk what has been dubbed a "one-click ethics violation."

This article seeks to explain how attorneys can use social networking sites without violating any rules of professional conduct. Additionally, the article proposes a …

California's Opportunity To Create Historical Precedent Regarding A Mediated Settlement Agreement's Effect On Mediation Confidentiality And Arbitrability , Susan Nauss Exon

Pepperdine Dispute Resolution Law Journal

Confidentiality serves as a cornerstone of mediation. The public policy underlying confidentiality is the promotion of candid communications between disputing parties. As explained in this article, mediation confidentiality affects more than just communication. It affects other important mediation values, such as party self-determination and mediator impartiality. Mediation confidentiality affects parties' ability to enforce their mediated agreements. Finally, confidentiality affects multiple dispute resolution processes, as seen by the interrelated nature of mediation and arbitration in the seminal case of Fair v. Bakhtiari.

When Mediation Confidentiality And Substantive Law Clash: An Inquiry Into The Impact Of In Re Marriage Of Kieturakis On California's Confidentiality Law, Annalisa L. H. Peterson

Pepperdine Dispute Resolution Law Journal

Mediation confidentiality laws play a critical role in allowing mediation to remain a viable process for parties to discuss the issues involved in their dispute, exchange information, and potentially reach a settlement before trial. Without certain guarantees as to the confidential nature of such a meeting, no savvy party or attorney would agree to provide information that could later be turned against him at trial, and many valuable opportunities (as measured in time, cost, reputation, relationship, etc.) for resolution would be lost. However, some parties to mediated disputes either do not reach resolution, or later contest a mediated agreement in …

Confidentiality Explained: The Dialogue Approach To Discussing Confidentiality With Clients, Elisia M. Klinka, Russell G. Pearce

San Diego Law Review

This Article offers an alternative dialogue approach. Rather than view the issue of explaining confidentiality either as a strategy for gaining client trust or an obligation necessary to comply with certain legal obligations, we propose understanding it as a key element in creating a relationship of dialogue grounded in honesty and mutual respect.

In doing so, we build on the work of the late Fred Zacharias, whose scholarship in this area provides both pathbreaking empirical insights and unwavering commitment to respecting client dignity. Among Zacharias’s contributions are his oft-cited empirical study suggesting that lawyers wrongly assume that clients would not …

Taking The Ethical Duty To Self Seriously: An Essay In Memory Of Fred Zacharias, Samuel J. Levine

San Diego Law Review

This essay delineates a three-tiered approach that incorporates not only the lawyer’s duty to the client and to society, but also the lawyer’s obligation to take into consideration the duty to self, which includes fidelity to the lawyer’s personal ethical values and commitments. In addition, rather than placing the various interests in hierarchical opposition, requiring that one duty invariably prevail over the others, the three-tiered approach looks to consider ways in which competing interests might balance or, at times, be reconciled with one another. To illustrate the three-tiered approach to the lawyer’s ethical obligations, this essay focuses on the lawyer’s …

Confidentiality And Common Sense: Insights From Philosophy, Thomas Morawetz

San Diego Law Review

In this Article, I will consider two aspects of the controversy that help explain why it is static. I will consider the significance of empirical evidence that lawyers and clients find the rules morally troubling. Zacharias plausibly assumes that such evidence carries compelling weight. I will also look at the nature of morality itself and the extent to which professional rules should be expected to conform to morality.

Ethically Handling The Receipt Of Possibly Privileged Information., James M. Fischer

St. Mary's Journal on Legal Malpractice & Ethics

Inadvertently sent e-mails that contain privileged information, material negligently included in a discovery response, or employer's documents taken by a whistle-blower all share a common theme-the materials were not intended to be disclosed to the opposing party. This Article makes two contentions. First, all unintended disclosures should be treated under a single standard that asks whether the privilege holder exercised reasonable care in maintaining the confidentiality of the materials. Second, with respect to the receiving lawyer's professional obligations, a lawyer who receives materials that may be privileged should be allowed to read the materials: (1) to determine whether the materials …

Legal Malpractice Litigation And The Duty To Report Misconduct., Vincent R. Johnson

St. Mary's Journal on Legal Malpractice & Ethics

Lawyers participating in legal malpractice litigation sometimes encounter evidence of serious disciplinary rule violations. Whether, and how soon, those lawyers are required to report this information to grievance authorities is a question that has received little attention from courts and scholars, despite the fact that most states have mandatory reporting rules. The dilemma for lawyers serving as testifying experts is particularly troublesome because nonreporting may result not only in discipline, but testimonial impeachment. The better view is that an expert in a pending case ordinarily has no mandatory obligation to report misconduct. This conclusion is supported by an analysis of …

Leaks, Lies, And The Moonlight: Fiduciary Duties Of Associates To Their Law Firms., Susan Saab Fortney

St. Mary's Law Journal

This symposium article examines the fiduciary duties of law firm associates. After applying agency principles to the firm-associate relationship, the article analyzes specific duties and discusses cases involving alleged breaches of fiduciary duties by associates. It explores associate duties in the current legal, organizational, and socio-technological environment in which associates practice. The article closes with observations on the importance of firm principals considering the effect of firm culture on associate attitudes and conduct.

Ethical Issues Associated With Multidisciplinary Practices In Texas., Michael Kelly

St. Mary's Law Journal

In 2000, the American Bar Association House of Delegates voted to uphold the ban on multidisciplinary practices (MDPs) set out in Rule 5.4 of the Model Rules of Professional Conduct (Model Rules). In 2009, the ABA announced the creation of the Ethics 20/20 Commission to review the Model Rules in the context of globalization. The Commission announced it was looking into alternative business structures, including MDPs. In an MDP a client can seek the advice of several professionals with experience in different disciplines working in a single business. Under Rule 5.4, a lawyer is prohibited from sharing legal fees with …

Making The Plaintiff ’S Bar Earn Its Keep: Rethinking The Hospital Incident Report, Katherine Mikk

NYLS Law Review

No abstract provided.

Washington's New Rules Of Professional Conduct: A Balancing Act , Johanna M. Ogdon

Seattle University Law Review

Part II begins by exploring the history of the Rules of Professional Conduct. Part II then briefly turns to the origins of the modern debate over candor and confidentiality and focuses on two of the most essentially opposed and well known scholars on the issue, Judge Marvin Frankel and Professor Monroe Freedman. Part III dissects Washington's newly adopted RPC, focusing on Rules 1.6 and 3.3. Part IV suggests that although the new rules mostly balance a client's interest in confidentiality with a court's interest in candor, attorneys should be given the discretion to reveal client confidences when necessary. In conclusion, …