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Articles 1 - 30 of 103
Full-Text Articles in Law
The Case For (And Against) Aba Regulation Of Non-J.D. Programs, Benjamin H. Barton
The Case For (And Against) Aba Regulation Of Non-J.D. Programs, Benjamin H. Barton
Scholarly Works
American law schools have pulled out of what looked like a death spiral. From 2008-18 job placement and bar passage cratered and applications and JD enrolment followed. Some law schools found themselves trapped between Scylla and Charybdis – if they did not loosen admissions, they would not have the funds to keep the doors open. But if they loosened admissions too much bar passage and placement suffered, prompting a possible closure via disaccreditation by the ABA (or the DOE).
There are (broadly speaking) two models of profitable higher education in the United States. The first is the old school, classic …
The Exclusion Of Public Legal Education From Mandatory And Aspirational State Pro Bono Service Requirements, Amy Wallace
The Exclusion Of Public Legal Education From Mandatory And Aspirational State Pro Bono Service Requirements, Amy Wallace
Articles & Chapters
Pro bono service is embedded in legal education and practice. Every year, lawyers and law students across the United States engage in countless hours of pro bono service. There are over 1.3 million lawyers in the country and more than one hundred thousand law students enrolled in law school. Lawyers perform an average of thirty-seven hours of pro bono work each year. They reference several factors that motivate them to perform this work but the desire to help people in need ranks highest. Professional duty is also listed as an important factor for lawyers choosing to perform pro bono work. …
Impeaching Legal Ethics, Bruce Green, Rebecca Roiphe
Impeaching Legal Ethics, Bruce Green, Rebecca Roiphe
Articles & Chapters
In the investigations, hearings, and aftermath of President Trump’s first impeachment, lawyer-commentators invoked the rules of professional conduct to criticize the government lawyers involved. To a large extent, these commentators mischaracterized or misapplied the rules. Although these commentators often presented themselves to the public as neutral experts, they were engaged in political advocacy, using the rules, as private litigators often do, as a strategic weapon against an adversary in the court of public opinion. For example, commentators on the left wrongly conveyed that, under the rules, government lawyers had a responsibility to the public to voluntarily assist in the impeachment, …
Legal Ethics For Government Lawyers: Confronting Doctrinal Gaps, Andrew Martin
Legal Ethics For Government Lawyers: Confronting Doctrinal Gaps, Andrew Martin
Articles, Book Chapters, & Popular Press
Despite the recent growth in the Canadian literature on legal ethics for government lawyers, the leading conceptual models have yet to be applied to resolve many of the most important legal questions facing government lawyers. In this article, I identify four key situations where the obligations of government lawyers as lawyers appear to clash with their obligations as public servants. I provide both a doctrinal analysis of how the current law applies in those situations and proposals for how the law can be clarified and improved. This analysis both provides much needed guidance to government lawyers and promotes a greater …
The Appearance Of Appearances, Michael Ariens
The Appearance Of Appearances, Michael Ariens
Faculty Articles
The Framers argued judicial independence was necessary to the success of the American democratic experiment. Independence required judges possess and act with integrity. One aspect of judicial integrity was impartiality. Impartial judging was believed crucial to public confidence that the decisions issued by American courts followed the rule of law. Public confidence in judicial decision making promoted faith and belief in an independent judiciary. The greater the belief in the independent judiciary, the greater the chance of continued success of the republic.
During the nineteenth century, state constitutions, courts, and legislatures slowly expanded the instances in which a judge was …
The Fall Of An American Lawyer, Michael Ariens
The Fall Of An American Lawyer, Michael Ariens
Faculty Articles
John Randall is the only former president of the American Bar Association to be disbarred. He wrote a will for a client, Lovell Myers, with whom Randall had been in business for over a quarter-century. The will left all of Myers’s property to Randall, and implicitly disinherited his only child, Marie Jensen. When Jensen learned of the existence of a will, she sued to set it aside. She later filed a complaint with the Iowa Committee on Professional Ethics and Conduct. That complaint was the catalyst leading to Randall’s disbarment.
Randall had acted grievously in serving as Lovell Myers’s attorney. …
Toward More Robust Self-Regulation Within The Legal Profession, Veronica Root Martinez, Caitlin-Jean Juricic
Toward More Robust Self-Regulation Within The Legal Profession, Veronica Root Martinez, Caitlin-Jean Juricic
Faculty Scholarship
The Trump Administration left reverberations throughout American life, and the legal profession was not insulated from its impact. The conduct of lawyers—both public and private—working on behalf of former President Trump was the subject of constant conversation and critique. The reality, however, is that the questions regarding the conduct of the Trump Administration lawyers, are rooted, in part, in more fundamental questions about the appropriate role of the lawyer within society. This Essay advocates for the adoption of a self-regulation scheme whereby lawyers regulate and oversee the conduct of other lawyers, to ensure that members of the legal profession are …
The Rules Of Professional Responsibility And Legal Finance: A Status Update, Anthony J. Sebok
The Rules Of Professional Responsibility And Legal Finance: A Status Update, Anthony J. Sebok
Faculty Articles
Legal finance occurs when strangers fund litigation for profit. Traditionally looked upon with suspicion in the common law, and limited by the doctrines of champerty and maintenance, legal finance is now a thriving part of the American legal landscape. Legal finance has been promoted as a solution to the access-to-justice problems facing working and middle class Americans, as well as a new asset class for Wall Street. At the center of legal finance, however, are lawyers – not the lawyers who write the contracts for the financing – but the lawyers for the cases being financed.
Over the past decade, …
Singapore: National Report For The Global Access To Justice Project, Tan K. B. Eugene
Singapore: National Report For The Global Access To Justice Project, Tan K. B. Eugene
Research Collection Yong Pung How School Of Law
Global Access to Justice Project is gathering the very latest information on the impact of the world’s major justice systems, analyzing legal, economic, social, cultural and psychological barriers that prevent or inhibit many, and not only the poor, from entering and using the legal system. The country report for Singapore follows the common framework provided by the Global Access to Justice Project Questionnaire.
Where's Rudy?, James E. Moliterno
Where's Rudy?, James E. Moliterno
Scholarly Articles
Choice of law in lawyer discipline matters, and the language among the popular choice of law rules in use matters. The core goals of choice of law principles should not limit the choices to the states in which a lawyer has a full, formal license. Doing so undermines the modern choice of law interests analysis by eliminating jurisdictions that may have the greatest interest in the conduct.
Lawyers cross borders physically and electronically on a daily basis. Accordingly, choice of law rules are critical, especially when a lawyer engages in missions that are targeted at particular jurisdictions, as Rudy Giuliani …
Biglaw: Money And Meaning In The Modern Law Firm, Milton C. Regan, Lisa H. Rohrer
Biglaw: Money And Meaning In The Modern Law Firm, Milton C. Regan, Lisa H. Rohrer
Georgetown Law Faculty Publications and Other Works
The Great Recession intensified large law firms’ emphasis on financial performance, leading to claims that lawyers in these firms were now guided by business rather than professional values. Based on interviews with more than 250 partners in large firms, Mitt Regan and Lisa H. Rohrer suggest that the reality is much more complex. It is true that large firm hiring, promotion, compensation, and termination policies are more influenced by business considerations than ever before and that firms actively recruit profitable partners from other firms to replace those they regard as unproductive. At the same time, law firm partners continue to …
Playing By The Rule: How Aba Model Rule 8.4(G) Can Regulate Jury Exclusion, Anna Offit
Playing By The Rule: How Aba Model Rule 8.4(G) Can Regulate Jury Exclusion, Anna Offit
Faculty Journal Articles and Book Chapters
Discrimination during voir dire remains a critical impediment to empaneling juries that reflect the diversity of the United States. While various solutions have been proposed, scholars have largely overlooked ethics rules as an instrument for preventing discriminatory behavior during jury selection. Focusing on the ABA Model Rule 8.4(g), which regulates professional misconduct, this article argues that ethics rules can, under certain conditions, offer an effective deterrent to exclusionary practices among legal actors. Part I examines the specific history, evolution, and application of revised ABA Model Rule 8.4(g). Part II delves into the ways that ethics rules in general, despite their …
Lawyers For White People?, Jessie Allen
Lawyers For White People?, Jessie Allen
Articles
This article investigates an anomalous legal ethics rule, and in the process exposes how current equal protection doctrine distorts civil rights regulation. When in 2016 the ABA Model Rules of Professional Conduct finally adopted its first ever rule forbidding discrimination in the practice of law, the rule carried a strange exemption: it does not apply to lawyers’ acceptance or rejection of clients. The exemption for client selection seems wrong. It contradicts the common understanding that in the U.S. today businesses may not refuse service on discriminatory grounds. It sends a message that lawyers enjoy a professional prerogative to discriminate against …
The Government Lawyer As Activist: A Legal Ethics Analysis, Andrew Martin
The Government Lawyer As Activist: A Legal Ethics Analysis, Andrew Martin
Articles, Book Chapters, & Popular Press
Can a lawyer and government employee represent the government in her professional life while being an activist in her personal life? There is a striking and seemingly irreducible clash, at least at the intuitive level, between the two roles – between representing the government on the one hand while at the same time lobbying it or litigating against it on the other. Government lawyers are nonetheless some of the more successful activists in recent Canadian history. This article analyzes whether this duality is problematic from a legal ethics perspective. The analysis is grounded in three case studies: disability rights activist …
Forming Start-Up Companies: Who's My Client?, Nancy J. Moore
Forming Start-Up Companies: Who's My Client?, Nancy J. Moore
Faculty Scholarship
Consider the following scenario: three individuals—a magician, a baker, and a puppeteer—want to start a business that will run birthday parties for children. The magician will put up most of the money, the baker has extensive experience with children’s birthday parties, and the puppeteer, who has an MBA, will manage the business. They meet with a lawyer to help them form a company, including advising them on such issues as choice of entity and allocation of ownership and control. Before the lawyer agrees to the representation, she must ask herself: “who will I represent?”1
The author of this hypothetical, legal …
A Fiduciary Theory Of Prosecution, Bruce A. Green, Rebecca Roiphe
A Fiduciary Theory Of Prosecution, Bruce A. Green, Rebecca Roiphe
Articles & Chapters
Scholars have failed to arrive at a unifying theory of prosecution, one that explains the complex role that prosecutors play in our democratic system. This Article draws on a developing body of legal scholarship on fiduciary theory to offer a new paradigm that grounds prosecutors’ obligations in their historical role as fiduciaries. Casting prosecutors as fiduciaries clarifies the prosecutor’s obligation to seek justice, focuses attention on the duties of care and loyalty, and prioritizes criminal justice considerations over other public policy interests in prosecutorial charging and plea-bargaining decisions. As fiduciaries, prosecutors are required to engage in an explicit deliberative process …
Ai Report: Humanity Is Doomed. Send Lawyers, Guns, And Money!, Ashley M. London
Ai Report: Humanity Is Doomed. Send Lawyers, Guns, And Money!, Ashley M. London
Law Faculty Publications
AI systems are powerful technologies being built and implemented by private corporations motivated by profit, not altruism. Change makers, such as attorneys and law students, must therefore be educated on the benefits, detriments, and pitfalls of the rapid spread, and often secret implementation of this technology. The implementation is secret because private corporations place proprietary AI systems inside of black boxes to conceal what is inside. If they did not, the popular myth that AI systems are unbiased machines crunching inherently objective data would be revealed as a falsehood. Algorithms created to run AI systems reflect the inherent human categorization …
Something Wicked This Way Thumbs: Personal Contact Concerns Of Text-Based Attorney Marketing, Ashley M. London
Something Wicked This Way Thumbs: Personal Contact Concerns Of Text-Based Attorney Marketing, Ashley M. London
Law Faculty Publications
When the American Bar Association (ABA) announced its latest revisions to Model Rules 7.1–7.5, governing attorney advertising, solicitation, and information about legal services in general, the organization may have unintentionally created a way for attorneys to hack directly into the brains of potential clients for purposes of pecuniary gain.
Brushing aside decades of precedent, the rule on Solicitation of Clients now allows real-time electronic solicitation, including text messaging and tweets. These developments beg the question of whether or not the ABA committee charged with redefining this rule actually understands the power and pervasiveness of cell phones, or how the use …
From Advocate To Party - Defenses For Lawyers Who Find Themselves In Litigation, Richard J. Wilson
From Advocate To Party - Defenses For Lawyers Who Find Themselves In Litigation, Richard J. Wilson
Articles in Law Reviews & Other Academic Journals
Attorneys, like all professionals, face civil liability when their action or inaction causes harm to a client. When an attorney fails the client, the claim most often asserted, and the claim that is typically most appropriate, is a legal malpractice claim. A legal malpractice claim is based on negligence.' Thus, the elements of a legal malpractice claim are (1) a duty, (2) a breach of that duty, (3) the breach proximately caused injury to the plaintiff, and (4) damages occurred.
Still, attorneys find themselves in a different circumstance than the average litigant. An attorney is not responsible for the client's …
Mindfulness In Legal Ethics And Professionalism, Peter H. Huang
Mindfulness In Legal Ethics And Professionalism, Peter H. Huang
Publications
Mindfulness involves paying attention with curiosity in an intentional, open, and compassionate way to life as it unfolds moment to moment. Law students, lawyers, law professors, legal clients, and indeed all people can improve their lives through mindfulness. Mindfulness can lead to individual benefits and personal transformation. Mindfulness can also lead to societal benefits and social change. This invited symposium contribution exemplifies how mindfulness can facilitate the positive personal and professional development of law students by presenting excerpts of law students’ answers discussing mindfulness to questions from the final examination of the course: Legal Ethics and Professionalism. Notably, none of …
Rudolph Giuliani And The Ethics Of Bullshit, Bennett L. Gershman
Rudolph Giuliani And The Ethics Of Bullshit, Bennett L. Gershman
Elisabeth Haub School of Law Faculty Publications
Lawyers are communicators. They communicate with clients, courts, adversaries, juries, witnesses, and the public. Lawyers have a special responsibility for the quality of justice. Their communications, therefore, are hedged by various ethical rules to ensure that their statements are knowledgeable, truthful, respectful, and not prejudicial to the administration of justice. But lawyers are not always knowledgeable of the facts. In fact, they sometimes behave disrespectfully, and stray from the truth. False statements by lawyers may be made unwittingly, sometimes intentionally, and sometimes with an indifference, even a contempt for the truth. Discourse of the latter kind may be characterized as …
Deliberative Constitutionalism In The National Security Setting, Mary B. Derosa, Milton C. Regan
Deliberative Constitutionalism In The National Security Setting, Mary B. Derosa, Milton C. Regan
Georgetown Law Faculty Publications and Other Works
Deliberative democracy theory maintains that authentic deliberation about matters of public concern is an essential condition for the legitimacy of political decisions. Such deliberation has two features. The first is deliberative rigor. This is deliberation guided by public-regarding reasons in a process in which persons are genuinely open to the force of the better argument. The second is transparency. This requires that requires that officials publicly explain the reasons for their decisions in terms that citizens can endorse as acceptable grounds for acting in the name of the political community.
Such requirements would seem to be especially important in the …
A Penal Colony For Bad Lawyers, Bennett L. Gershman
A Penal Colony For Bad Lawyers, Bennett L. Gershman
Elisabeth Haub School of Law Faculty Publications
In this article I set out what I believe is an extreme and unconventional way to discipline egregiously bad lawyers. For starters, I think it might be useful to survey briefly the kinds of lawyering conduct currently subject to disciplinary sanctions. Regulation of the conduct of defense lawyers in the U.S. is hedged by various legal and professional rules that are enforced by courts and disciplinary bodies essentially to ensure a minimum level of competent and ethical representation. The Sixth Amendment right to counsel--the so-called “sacred” right--seeks to ensure at least a reasonable degree of lawyering skill. Also, professional codes …
Can Practicing Mindfulness Improve Lawyer Decision-Making, Ethics, And Leadership?, Peter H. Huang
Can Practicing Mindfulness Improve Lawyer Decision-Making, Ethics, And Leadership?, Peter H. Huang
Publications
Jon Kabat-Zinn, the founder of mindfulness-based stress reduction, defines mindfulness as paying attention in a curious, deliberate, kind, and non-judgmental way to life as it unfolds each moment. Psychologist Ellen Langer defines mindfulness as a flexible state of mind actively engaging in the present, noticing new things, and being sensitive to context. Langer differentiates mindfulness from mindlessness, which she defines as acting based upon past behavior instead of the present and being stuck in a fixed, solitary perspective, oblivious to alternative multiple viewpoints. Something called mindfulness is currently very fashionable and has been so for some time now in American …
In Defense Of The Devil’S Advocate, Lonnie T. Brown
In Defense Of The Devil’S Advocate, Lonnie T. Brown
Scholarly Works
mong the many controversial positions for which Monroe Freedman advocated during his illustrious career, the one that I find most surprising and uncharacteristic is his contention that lawyers who undertake morally questionable representations have a duty to explain or justify their choice of client. Specifically, in 1993 Professor Freedman penned a well-known column in the Legal Times — titled “Must You Be the Devil’s Advocate?” — in which he took Professor Michael Tigar to task for his representation of reputed Nazi war criminal John Demjanjuk. Professor Freedman tacitly criticized Professor Tigar for his client choice and expressly called upon him …
Love, Anger, And Lawyering, Deborah J. Cantrell
Love, Anger, And Lawyering, Deborah J. Cantrell
Publications
This essay explores how mindfulness practices helped one lawyer, now legal scholar, explore the roles of love and anger in lawyering.
Who Should Be Our Moral Compass Now?, Rachel A. Van Cleave
Who Should Be Our Moral Compass Now?, Rachel A. Van Cleave
Publications
Educating Tomorrow's Lawyers conducted a survey of over 27,000 lawyers across the country about the qualities, skills and competencies necessary for new lawyers. Almost 73 percent said having a "strong moral compass" is necessary for a lawyer to be successful in the short term. Only 17 (out of 147) other skills, competencies and characteristics, received a higher percentage of votes. Included among these were "treat others with courtesy and respect" (91.9 percent), act with "integrity and trustworthiness" (92.3 percent), and "honor commitments" (93.9 percent).
The full results of the survey have not been published, but were presented to a small …
Why Is There No Clear Doctrine Of Informed Consent For Lawyers?, Nancy J. Moore
Why Is There No Clear Doctrine Of Informed Consent For Lawyers?, Nancy J. Moore
Faculty Scholarship
Written as a contribution to a symposium issue of the Toledo Law Review honoring retiring professor Susan Martyn, this article takes as its starting point an early article by Professor Martyn entitled “Informed Consent in the Practice of Law.” In that article, Professor Martyn decried the inability of clients to control the course of their representation and urged state legislatures to remedy this situation by enacting legislation creating an action in damages based upon a lawyer’s failure to obtain the client’s informed consent. Such an action would be similar to common law actions that courts had recently recognized by patients …
Virtuous Billing, Randy D. Gordon, Nancy B. Rapoport
Virtuous Billing, Randy D. Gordon, Nancy B. Rapoport
Faculty Scholarship
Aristotle tells us, in his Nicomachean Ethics, that we become ethical by building good habits and we become unethical by building bad habits: “excellence of character results from habit, whence it has acquired its name (êthikê) by a slight modification of the word ethos (habit).” Excellence of character comes from following the right habits. Thinking of ethics as habit-forming may sound unusual to the modern mind, but not to Aristotle or the medieval thinkers who grew up in his long shadow. “Habit” in Greek is “ethos,” from which we get our modern word, “ethical.” In Latin, habits are moralis, which …
Preventing Legal Malpractice And Disciplinary Complaints: Ethics Audits As A Risk-Management Tool, Susan Saab Fortney
Preventing Legal Malpractice And Disciplinary Complaints: Ethics Audits As A Risk-Management Tool, Susan Saab Fortney
Faculty Scholarship
This column examines the value of firm lawyers conducting and supporting ethics audits as an integral feature of a comprehensive risk-management program. For decades, legal malpractice experts have urged lawyers to implement systems, policies, and procedures related to the delivery of legal services. Once a firm adopts systems, policies, and procedures, a meaningful risk-management system requires a periodic examination to monitor lawyers’ compliance. Rather than waiting for a professional liability insurer to recommend or require such a systematic examination, proactive firm leaders and lawyers should seriously consider devoting time and resources to periodic ethics audits.