Law Commons^™

The Jurisprudential Turn In Legal Ethics, Katherine R. Kruse

Scholarly Works

When legal ethics developed as an academic discipline in the mid-1970s, its theoretical roots were in moral philosophy. The early theorists in legal ethics were moral philosophers by training, and they explored legal ethics as a branch of moral philosophy. From the vantage point of moral philosophy, lawyers’ professional duties comprised a system of moral duties that governed lawyers in their professional lives, a “role-morality” for lawyers that competed with ordinary moral duties. In defining this “role-morality,” the moral philosophers accepted the premise that “good lawyers” are professionally obligated to pursue the interests of their clients all the way to …

The Jurisprudential Turn In Legal Ethics, Kate Kruse

Faculty Scholarship

When legal ethics developed as an academic discipline in the mid-1970s, its theoretical roots were in moral philosophy. The early theorists in legal ethics were moral philosophers by training, and they explored legal ethics as a branch of moral philosophy. From the vantage point of moral philosophy, lawyers’ professional duties comprised a system of moral duties that governed lawyers in their professional lives, a “role-morality” for lawyers that competed with ordinary moral duties. In defining this “role-morality,” the moral philosophers accepted the premise that “good lawyers” are professionally obligated to pursue the interests of their clients all the way to …

It's Not Funny: Creating A Professional Culture Of Pro Bono Commitment, Douglas L. Colbert

Faculty Scholarship

Professor Colbert challenges the popular view that regards lawyers as selfish, greedy and uncaring to the legal needs of the outside community. In his article, he recognizes that the lawyers with whom he is familiar are fulfilling the lawyer’s ethical obligation of engaging in pro bono service and “provid[ing] legal services to those unable to pay,” while also embracing the language in the Preamble to the Model Rules of Professional Conduct that refers to the attorney “as a public citizen who has a special responsibility to the quality of justice.” Professor Colbert asks colleagues in the legal academy whether they …

Foreword: The New Era- Quo Vadis?, John Sahl

Akron Law Faculty Publications

The Inaugural MBI Symposium’s twenty-six participants highlight many important developments and challenges caused by MJP and new technologies. Their assessments and suggestions provide a helpful roadmap for lawyers and regulators to negotiate the increasingly complex, fast-paced, and ethically risky landscape for delivering legal services. Several panelists suggested regulatory reforms that range from the creation of a regulatory framework for lawyers engaged in crossborder practice to the creation of standards for the supervision of offshore outsourced legal services268 and the mining of metadata. Some of the panelists’ suggestions and reforms are especially important given the “high [financial] stakes” involved in the …

What's Love Got To Do With It?: Contemporary Lessons On Lawyerly Advocacy From The Preacher Martin Luther King, Jr., Deborah J. Cantrell

Publications

Lawyers have long been inspired by the advocacy work of Martin Luther King, Jr. From his work on the Montgomery bus boycott, to lunch counter sit-ins, to his March on Washington, Dr. King demonstrated skilled advocacy that resulted in important legal advancements. While lawyers give primacy to Dr. King as an advocate, Dr. King gave primacy to his work as a preacher. This article challenges the legal profession to consider the ways in which Dr. King, the preacher, may be as inspirational and instructive as Dr. King, the civil rights icon. Just as Dr. King's religious values were not abstracted …

How Must A Lawyer Be? A Response To Woolley And Wendel, David Luban

Georgetown Law Faculty Publications and Other Works

In Legal Ethics and Moral Character, 23 GEO. J. LEGAL Ethics, Alice Woolley and W. Bradley Wendel argue that theories of legal ethics may be evaluated by examining the kind of person a lawyer must be to conform to the normative demands of the theory. In their words, theories of legal ethics musts answer questions not only of what a lawyer must do, but how a lawyer must be. Woolley and Wendel examine three theories of legal ethics—those of Charles Fried, William Simon, and myself—and conclude that the theories they discuss impose demands on agency that are not realistic, functional, …

An Introduction To The Financial Action Task Force And Its 2008 Lawyer Guidance, Laurel S. Terry

Journal Articles

The Financial Action Task Force (FATF) is a thirty-eight-member intergovernmental organization whose mission is to fight money laundering and terrorism financing; the U.S. is a founding member of the FATF. The FATF is best known for its 40 Recommendations, many of which are directed towards various kinds of “gatekeepers” who are in a position to facilitate or inhibit money laundering and terrorism financing. (These were previously known as the 40+9 Recommendations). Lawyers are among those to whom the FATF’s recommendations apply. This article provides the introduction for the Journal of the Professional Lawyer’s Symposium about the application of the FATF …

David Luban, Review Of Daniel Markovits, A Modern Legal Ethics: Adversary Advocacy In A Democratic Age, David Luban

Georgetown Law Faculty Publications and Other Works

Daniel Markovits offers a novel defense of the traditional partisan advocate’s role, based on the demands of personal integrity. Although he insists that the adversary system requires lawyers to lie and cheat (regardless of the particular ethics rules in place), it is possible to redescribe these lawyerly vices as the virtue of fidelity to a client, expressed through what John Keats called “negative capability”—a suppression of the self in order to allow someone else’s story to shine forth. These are first-personal moral ideals, and Markovits argues against the primacy of second- and third-personal moral ideals (such as Kantianism and utilitarianism) …

Mapping The World: Facts And Meaning In Adjudication And Mediation, Robert Rubinson

All Faculty Scholarship

This Article explores what is and what is not in adjudication and mediation, thus illuminating the profound differences between these two processes. The Article does this work in four parts. First, it offers an analysis of cognitive mapmaking and its inevitability in constructing meaning. It then explores how adjudication defines meaning in a particular way. This Article then conducts a comparable analysis of mediation. Finally, it focuses on the bridging function attorneys play between the worlds of mediation and adjudication.

Can Compassionate Practice Also Be Good Legal Practice?: Answers From The Lives Of Buddhist Lawyers, Deborah J. Cantrell

Publications

What does it mean to say that one is a "good lawyer" in the United States? The dominant view is that a lawyer is a zealous advocate owing loyalty to, and taking direction from, the client. The lawyer is singularly focused and hyper-rationality is prized. This article challenges that narrative. Using the real lives of a group of lawyers across the United States, this article offers rich and nuanced descriptive data about the possibilities of "good lawyering" through compassion, equanimity, and an expanded notion of honesty. This article contributes importantly to the debate about what it means to be a …

Robinson Everett: The Citizen Lawyer Ideal Lives On, David F. Levi

Faculty Scholarship

In this tribute to Professor Robinson O. Everett, Dean David Levi questions the view that the citizen-lawyer or lawyer-statesmen models are in decline. Tracing Professor Everett’s varied career, accomplishments, and commitments to individuals and institutions; Levi contends that Everett combined the lawyer's traditional focus on the individual with an overall dedication to the larger community. Everett was not just a model citizen; he was a lawyer-citizen. Levi contends that the survival of the lawyer-citizen and lawyer-statesmen models is a matter of choice and character. Nothing in the current structure of the legal economy places these models out of reach for …

The Lawyer As Catalyst Of Social Change, James E. Moliterno

Scholarly Articles

No abstract provided.

A Golden-Age Of Civil Involvement: The Client-Centered Disadvantage For Lawyers As Law Makers, James E. Moliterno

Scholarly Articles

None available.

Sentence Reduction As A Remedy For Prosecutorial Misconduct, Sonja B. Starr

Articles

Current remedies for prosecutorial misconduct, such as reversal of conviction or dismissal of charges, are rarely granted by courts and thus do not deter prosecutors effectively. Further, such all-or-nothing remedial schemes are often problematic from corrective and expressive perspectives, especially when misconduct has not affected the trial verdict. When granted, these remedies produce windfalls to guilty defendants and provoke public resentment, undermining their expressive value in condemning misconduct. To avoid these windfalls, courts refuse to grant any remedy at all, either refusing to recognize violations or deeming them harmless. This often leaves significant non-conviction-related harms unremedied and egregious prosecutorial misconduct …

The Two Faces Of Lawyers: Professional Ethics And Business Compliance With Regulation, Christine E. Parker, Robert E. Rosen, Vibeke Lehmann Nielsen

Articles

No abstract provided.

Fitness For Purpose: Mandatory Continuing Legal Ethics Education For Lawyers, Jocelyn Downie, Richard Devlin

Articles, Book Chapters, & Popular Press

The authors argue that if we want lawyers to be fit for the purpose of practicing law, and law societies to be fit for the purpose of regulating in the public interest, then it is incumbent upon the Canadian legal profession to adopt programmes of compulsory legal ethics education (CLEE). In support of this argument the authors: provide several reasons why Canadians might be concerned about the ethical fitness of lawyers and law societies; analyse several arguments both in supporting and resisting CLEE; suggest several strategies for overcoming the ethical indolence of the legal profession; and draw inspiration from recent …

The Model Rules Of Professional Conduct And Serving The Non-Legal Needs Of Clients: Professional Regulation In A Time Of Change, Robert Rubinson

All Faculty Scholarship

The practice of law is changing. Lawyers who act solely as advocates and zealous representatives of clients in legal matters still represent the core of what lawyers do and of how many lawyers see their work, but other trends are filtering into "on the ground" practice. Increasing numbers of lawyers are mediating, consulting on traditionally non-legal issues, and approaching clients' needs "holistically" by associating with and integrating other professional services. These trends cut across virtually all segments of the profession, from prosecutors and criminal defense lawyers, to lawyers whose practices involve, among other things, public interest work, personal injury, family …

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

Journal Articles

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 …

Sentencing: Where Case Theory And The Client Meet, Kimberly A. Thomas

Articles

Criminal sentencing hearings provide unique opportunities for teaching and learning case theory. These hearings allow attorneys to develop a case theory in a context that both permits understanding of the concept and, at the same time, provides a window into the difficulties case theory can pose. Some features of sentencing hearings, such as relaxed rules of evidence and stock sentencing stories, provide a manageable application of case theory practice. Other features of sentencing hearings, such as the defendant's allocution, require an attorney to contend with competing "case theories," and as a result, to face the ethical and counseling challenge of …

Second Generation Environmental Justice: Challenges And Opportunities, Rachel D. Godsil

The Climate of Environmental Justice: Taking Stock (March 16-17)

Presenter: Rachel D. Godsil, Professor of Law, Seton Hall Law School

3 pages.

The Negotiator-As-Professional: Understanding The Competing Interests Of A Representative Negotiator, Trevor C. W. Farrow

Articles & Book Chapters

No abstract provided.

The Negotiator As Professional: Understanding The Competing Interests Of A Representative Negotiator, Trevor C. W. Farrow

Comparative Research in Law & Political Economy

This article is about lawyers as negotiators, and in particular, it is about identifying and understanding the influential and potentially competing interests that are - or at least should be - in the minds of lawyers (and potentially other third party representatives) during the overall negotiation process. While there continues to be an increasing amount of literature on the mechanics and strategies of negotiation, the underlying interests that are typically at stake in representative negotiations from the perspective of representatives - particularly negotiations involving lawyers - have not been adequately studied. Current accounts of the representative negotiator do not paint …

Tax Practice In A Circular Revolution: A Review Of Pli's Circular 230 Deskbook, Bridget J. Crawford

All Faculty Scholarship

This short review essay evaluates the Practicing Law Institute's Circular 230 Deskbook by Jonathan G. Blattmachr, Mitchell M. Gans and Damien Rios. For attorneys, accountants and others who "practice" before the IRS, the Circular 230 Deskbook is a masterful analysis and an important guide to the Internal Revenue Service's labyrinthine rules and regulations governing tax penalties, reportable transactions and the conduct of tax practitioners. Most tax attorneys and accountants have reacted to the recent changes to Circular 230 by appending banner notices to all written communications. Without fully understanding the underlying rules, however, a practitioner cannot be sure that a …

Standing In Babylon, Looking Toward Zion, Katherine R. Kruse

Scholarly Works

This article defends the triumph of vision at the 2006 UNLV Conference on Representing Children in Families by examining the interrelationship between idealism and realism in the definition of lawyers' roles and the importance of idealized visions to the process of reforming dysfunctional systems. This article suggests that the vision of lawyering for children sketched in the UNLV Recommendations--though based in idealism--is both deeply realistic and ultimately practical. This article thus affirms the choice of the group of idealists who stood together for a few days in modern-day Babylon to keep their eyes trained on the vision of Zion as …

Bankruptcy Ethics Issues For Solos And Small Firms, Nancy B. Rapoport

Scholarly Works

This chapter, in Corinne Cooper & Catherine E. Vance's book Attorney Liability in Bankruptcy, walks the reader through some of the traditional ethics issues triggered by representing consumers and small businesses. It also addresses some of the ethics issues that the recent Bankruptcy Amendments (BAPCPA) have created.

Alleged Conflicts Of Interest Because Of The “Appearance Of Impropriety”, Ronald D. Rotunda

Law Faculty Articles and Research

No abstract provided.

Conclusion: 'If You Don't Pull Up . . .'., James J. White

Other Publications

Today I am going to talk about a lawyer duty that is just as important as the duty to exercise warm zeal on behalf of a client, but it is a duty that is unknown to the popular culture and rarely touched on in law school. That is the duty to say no to your client, to step in front of a client who is determined to do something stupid, or in violation of the civil or criminal law.

Lawyers Should Be Lawyers, But What Does That Mean?: A Response To Aiken & Wizner And Smith, Katherine R. Kruse

Scholarly Works

Lawyers should be more like social workers. That is the message of Law as Social Work, the provocative essay by Jane Aiken and Stephen Wizner (Aiken & Wizner) in the Washington University Journal of Law & Policy volume, which preceded the conference on Promoting Justice Through Interdisciplinary Teaching, Practice, and Scholarship, hosted by Washington University School of Law in March 2003. Almost as if in reply, Abbe Smith's contribution to the same pre-conference volume reasserts the importance of lawyers as zealous and partisan advocates, using the realities of the criminal defense context to argue for the value of the lawyer's …

Enron, Titanic, And The Perfect Storm, Nancy B. Rapoport

Scholarly Works

In this article, I explore the contention of Jeffrey Skilling, former Enron CEO, that Enron's debacle was due to a perfect storm of events. I reject his contention, arguing instead that Enron's downfall was more like Titanic's - hubris and an over-reliance on checks and balances led to Enron's downfall. I then explore how character (especially of those at the top of an organization) can lead to Enron-like disasters, and I talk about how cognitive dissonance can lead to very smart people making very stupid decisions. I end with some musings about how lawyers can learn from Enron.

Legal And Ethical Duties Of Lawyers After Sarbanes-Oxley, Susan P. Koniak, George M. Cohen, Roger C. Cramton

Faculty Scholarship

This Article examines the legal and ethical duties of lawyers after Sarbanes-Oxley, focusing on the application, interpretation and ambiguities of the SEC rule implementing Section 307. Although our primary frame of reference will be on the SEC's new rules as an aspect of lawyer regulation, those rules are part of federal securities laws and should be considered in that aspect, i.e., whether they advance the purposes of the federal securities laws. The rules affecting lawyers should not be assessed in a vacuum as a mere turf war between federal regulators on the one hand and the organized bar and its …