Law Commons^™

Am I My Client? Revisited: The Role Of Race In Intra-Race Legal Representation, Julie D. Lawton

Michigan Journal of Race and Law

This Article examines the challenges of intra-race legal representation for lawyers of color, law students of color, and those teaching law students of color by analyzing how the dynamics of the lawyer’s and client’s racial sameness impact legal representation. This Article brings together three strands of lawyering theory – the role of race in lawyering, critical race theory, and the role of the lawyer in intra-race legal representation. In doing so, this Article explores a number of provocative questions: Does being the same race as their clients make lawyers better legal representatives? Should lawyers of color embrace or resist race’s …

The Transformative Potential Of Attorney Bilingualism, Jayesh M. Rathod

University of Michigan Journal of Law Reform

In contemporary U.S. law practice, attorney bilingualism is increasingly valued, primarily because it allows lawyers to work more efficiently and to pursue a broader range of professional opportunities. This purely functionalist conceptualization of attorney bilingualism, however, ignores the surprising ways in which multilingualism can enhance a lawyer's professional work and can strengthen and reshape relationships among actors in the U.S. legal milieu. Drawing upon research from psychology, linguistics, and other disciplines, this Article advances a theory of the transformative potential of attorney bilingualism. Looking first to the development of lawyers themselves, the Article posits that attorneys who operate bilingually may, …

Agency And Equity: Why Do We Blame Clients For Their Lawyers' Mistakes, Adam Liptak

Michigan Law Review

If you were to ask a child whether it would be fair to execute a prisoner because his lawyer had made a mistake, the answer would be no. You might even get a look suggesting that you had asked a pretty stupid question. But judges treat the issue as a hard one, relying on a theory as casually accepted in criminal justice as it is offensive to principles of moral philosophy. This theory holds that the lawyer is the client's agent. What the agent does binds the principal. But clients and lawyers fit the agency model imperfectly. Agency law is …

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 …

Eyes Wide Shut: How Ignorance Of The Common Interest Doctrine Can Compromise Informed Consent, Katharine Traylor Schaffzin

University of Michigan Journal of Law Reform

This Article addresses the novel ethical problems presented by the common interest doctrine that implicate an attorney's duties of diligence, confidentiality, and loyalty to his or her client. These adverse effects of informal aggregation are not always fully considered before engaging a client in a common interest arrangement, but they should be. In Part II, this Article first explains the potential advantages that the common interest doctrine presents as an evidentiary tool, but then recognizes that exercise of the doctrine creates an undefined duty on the part of the attorney to the party with whom a client exchanges confidential information. …

Main Street Multidisciplinary Practice Firms: Laboratories For The Future, Susan Poser

University of Michigan Journal of Law Reform

This Article examines the debate over multidisciplinary practice in the wake of the collapse of Enron and Arthur Andersen. Part I addresses the history of the scholarly debate about multidisciplinary practice in the United States. It discusses the focus on large multidisciplinary firms, feared threats to independent professional judgment, and the current rule concerning lawyers and multidisciplinary practice.

Part II examines the reasons for allowing multidisciplinary practice. The author argues that client demand, lawyer demand, and policy reasons all provide valid reasons for permitting "one-stop" shopping. Part I also discusses existing forms of multidisciplinary practice. The author argues that the …

Give Them Back Their Lives: Recognizing Client Narrative In Case Theory, Binny Miller

Michigan Law Review

This article is about case theory and its implications for incorporating client narratives in litigation. In seeking to understand the connections between voice, narrative, and case theory, I look not only to theory but to my experience as a clinical teacher and criminal defense attorney. I explore how the practice of lawyering can be reconstructed to embrace a greater role for clients in constructing case theories, both through the images of the client the lawyer presents in the case theory and through active client participation in developing and choosing the case theory. Although one aim of case theory is to …

Knowledge About Legal Sanctions, Stephen Mcg. Bundy, Einer Elhauge

Michigan Law Review

Ironically, the dictum that "ignorance of the law is no excuse" itself illustrates selective transmission because, despite the widespread dissemination of this maxim to the public, ignorance of the law often is a permissible defense in actual adjudication. The divergence between the maxim and reality is a form of selective transmission that encourages individuals to learn the law, which improves their behavior, but avoids any injustice that would arise from punishing uninformed individuals for conduct they reasonably believed was lawful. We aim to offer a more systematic account of whether and when knowledge about legal sanctions, and restrictions on the …

The Public Defender, Robert R. Kimball

Michigan Law Review

A Review of The Public Defender by Lisa J. McIntyre

In Defense Of A Double Standard In The Rules Of Ethics: A Critical Reevaluation Of The Chinese Wall And Vicarious Disqualification, Frances Witty Hamermesh

University of Michigan Journal of Law Reform

This Note suggests that no change is warranted at the present time; courts should not adopt the Chinese wall defense to vicarious disqualification of private firms. The Chinese wall should, however, continue to operate as an internal device for protection of confidentiality. As such, it encourages firms to avoid disqualification by obtaining client consent to successive representation. Neither the historical record of the work of the Commission on the Evaluation of Professional Standards (the Kutak Commission), the empirical evidence currently available, nor the pragmatic arguments offered by many commentators justify an exception to, or modification of, the standard of imputed …

Forcing Attorneys To Represent Indigent Civil Litigants: The Problems And Some Proposals, Greg Stevens

University of Michigan Journal of Law Reform

This Note argues that uncompensated court appointments represent an unsatisfactory means to provide counsel for indigents. Part I discusses the policy arguments for and against forced, uncompensated court appointments. Part I concludes that the arguments against these appointments outweigh the arguments in favor of them. Part II argues that they violate the Constitution's prohibitions against uncompensated takings and involuntary servitude. Part III offers a proposal that would provide effective representation for indigent civil litigants, while avoiding infringement of attorneys' constitutional rights.

U.S. Law Of Attorney-Client Privilege As Applied To Non-U.S. Lawyers: A Reciprocity Issue?, Hetty L. Richardson

Michigan Journal of International Law

Part I of this note considers whether U.S. federal and state law applies the attorney-client privilege equally to communications with U.S. and non-U.S. attorneys. It concludes that, contrary to the ILP's position, the law on this issue is not firm. In light of the policy issues raised by the AM & S decision, part II considers factors that may justify discriminating between U.S. and non-U.S. lawyers, or among non-U.S. lawyers. It concludes that the public interest may be served best by extending the attorney-client privilege to communications with some, but not all, non-U.S. lawyers. Part III presents a proposal for …

Soliciting Sophisticates: A Modest Proposal For Attorney Solicitation, Victor P. Filippini Jr.

University of Michigan Journal of Law Reform

This Note advocates an amendment to the ethical standards governing attorneys that will permit the personal solicitation for pecuniary gain of sophisticated prospective clients - that is, those persons having general knowledge of their legal needs and the expertise to assess adequately the information and presentation of an attorney. Part I of this Note shows that lawyer solicitation is a form of commercial speech under recent Supreme Court decisions. It also asserts that, though the traditional reasons for banning lawyer solicitation still have some validity, these reasons do not justify prohibiting the solicitation of sophisticated clients. Part II suggests some …

Poor People's Lawyers In Transition, Michigan Law Review

Michigan Law Review

A Review of Poor People's Lawyers in Transition by Jack Katz

The Attorney-Client Privilege And The Corporate Client: Where Do We Go After Upjohn?, Michigan Law Review

Michigan Law Review

Part I of this Note examines two of the more popular standards, the Seventh Circuit's "subject matter test" and the Eighth Circuit's "modified subject matter test" and concludes that neither approach is entirely consistent with the purposes of the privilege. Part II argues that the courts should adopt the Eighth Circuit's test with two further modifications. One revision is but a demand for clarification and consistency: the courts should explicitly adopt Dean Wigmore's legal advice requirement for corporate clients. The other modification is more radical: the command requirement should be eliminated. Under this approach, every employee may stand in the …

Prospective Waiver Of The Right To Disqualify Counsel For Conflicts Of Interest, Michigan Law Review

Michigan Law Review

Part I of the Note discusses canon 4, first explaining the presumptions and policies that underlie it, then arguing that courts should enforce prospective waivers of the presumption of shared confidences when conditioned on the law firm's effective screening of client confidences - keeping them from the attorneys within the firm who will take part in the adverse representation. Part II turns to canon 5, and argues that prospective waivers of the presumption of diluted loyalties should be enforced against clients moving to disqualify law firms for a canon 5 violation.

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 …

Attorney Solicitation: The Scope Of State Regulation After Primus And Ohralik, David A. Rabin

University of Michigan Journal of Law Reform

The purpose of this article is to analyze the opinions in Primus and Ohralik, to delineate the scope of permissible state regulation in the wake of those two decisions, and to recommend specific changes in existing state solicitation rules. Part I examines the general nature of attorney solicitation law - by whom it is made and how it is enforced. Part II describes the statutory and constitutional aspects of solicitation law prior to Primus and Ohralik. Part III discusses the Court's holdings in Primus and Ohralik, and the changes in current statutory schemes required by the two …

The Legal Profession: Client Interests, Professional Roles, And Social Hierarchies, John P. Heinz, Edward O. Laumann

Michigan Law Review

There is a natural urge to study the extreme. The extreme case is likely to be conspicuous and dramatic. Sociological research on the American legal profession has not, for the most part, resisted the urge. The best-known studies examine lawyers at the extremes of the profession's prestige hierarchy-e.g., Carlin's study of solo practitioners and Smigel's study of the Wall Street lawyer. The profession's center has more often been neglected and few data are available on the bar's overall social structure. Ladinsky's study .of Detroit lawyers covers all types and specialities, and contributes substantially to our understanding of the …

The Corporate And Securities Adviser, The Public Interest, And Professional Ethics, Simon M. Lorne

Michigan Law Review

It is the thesis of this Article that we, as a society, need to make deliberate decisions about the proper role of the corporate adviser, and, when that function has been defined, to develop a structure within which it can be performed. As the Article makes clear, the logical choices involve what might be described as either revolutionary change or reactionary change. That is, the current trends should either be accelerated or reversed; the present situation is intolerable. While the author will contend that the case for shifting into reverse is more persuasive, getting into a gear, and out of …

Lawyers And Professionalism: A Further Psychiatric Perspective On Legal Education, Andrew S. Watson

University of Michigan Journal of Law Reform

In recent years, clinical teaching methods have played an increasingly significant role in the education of this nation's lawyers. With the consequential accumulation of data pertaining to various institutional experiences, it is now worthwhile to explore, from a clinician's perspective, some of the psychodynamics of this educational process as it appears to affect a student's future professional behavior. In addition to such an examination, this article will delineate methods for dealing with the stresses of a lawyer's professional life, suggesting ways in which the attorney may satisfy his goals as well as those of his client. It is hoped that …

Evidence--Privileged Communications--The Attorney-Client Privilege In The Corporate Setting: A Suggested Approach, Michigan Law Review

Michigan Law Review

This Note will first review the development of the personal attorney-client privilege and the extent to which the term "client" has been expanded for use with that privilege. Then, the development of the corporate attorney-client privilege will be examined with an eye toward isolating the tests that the courts have used to define the extent of the term "client." Finally, with the results of these examinations in mind, an approach will be suggested that, if adopted by the courts, could effectively eliminate the confusion that presently exists with regard to the scope of the attorney-client privilege in the corporate setting.

Brownell: Legal Aid In The United States., Glenn R. Winters

Michigan Law Review

A Review of LEGAL AID IN THE UNITED STATES. By Emery A. Brownell.