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Articles 1 - 30 of 102
Full-Text Articles in Law
Who Watches The Watchmen? Using The Law Governing Lawyers To Identify The Applicant Duty Gap And Hold Bar Examiner Gatekeepers Accountable, Ashley M. London
Who Watches The Watchmen? Using The Law Governing Lawyers To Identify The Applicant Duty Gap And Hold Bar Examiner Gatekeepers Accountable, Ashley M. London
Law Faculty Publications
The legal profession holds lawyers to high standards in their personal and professional lives and expects aspiring members to follow the ethical rules with scrupulous precision and candor. Yet the profession, and those monitoring admission to the profession, afford no protections or recourse to this class of young professionals during that critical period between graduation and successful bar passage.
Without reform, this previously unacknowledged duty gap will continue to demoralize and potentially harm future lawyers and reflect negatively on the profession as a whole. Supervising bodies, discussed within, treat applicants as if they have already committed an ethical breach. Indeed, …
Loyalty, Conscience, And Withdrawal: Are Government Lawyers Different?, Andrew Martin
Loyalty, Conscience, And Withdrawal: Are Government Lawyers Different?, Andrew Martin
Articles, Book Chapters, & Popular Press
There is a growing recognition that the core concepts and specific rules of legal ethics can have unusual and even unique implications for government lawyers. In this short essay, I examine how loyalty, conscience, and withdrawal apply to government lawyers. I argue that while government lawyers should be slower than lawyers in private practice to exercise their professional discretions to withdraw from a matter, they must be particularly ready to withdraw when unavoidably required – despite any selfless dedication to the ideal of a non-partisan public service.
The Partnership Mystique: Law Firm Finance And Governance For The 21st Century American Law Firm, Maya Steinitz
The Partnership Mystique: Law Firm Finance And Governance For The 21st Century American Law Firm, Maya Steinitz
William & Mary Law Review
This Article identifies and analyzes the de facto and de jure end of lawyers’ exclusivity over the practice of law in the United States. This development will have profound implications for the legal profession, the careers of individual lawyers, and the justice system as a whole.
First, the Article argues that various financial products that have recently flooded the legal market are functionally equivalent to investing in and owning law firms and create all the same governance challenges as allowing nonlawyers to directly own stock in law firms.
Second, the Article analyzes Arizona’s groundbreaking legalization of nonlawyer participation in law …
Advocating For The Future, John C. Dernbach, Irma S. Russell, Matthew Bogoshian
Advocating For The Future, John C. Dernbach, Irma S. Russell, Matthew Bogoshian
Faculty Works
Attorneys in our varied roles need to step up and address the climate crisis for the sake of every person and for the public good. All lawyers must be sustainability lawyers now. This article explains why; it also offers an illustrative set of suggestions on how to get started and what to do.
The Premier Should Not Also Be The Attorney General: Roncarelli V Duplessis Revisited As A Cautionary Tale In Legal Ethics And Professionalism, Andrew Flavelle Martin
The Premier Should Not Also Be The Attorney General: Roncarelli V Duplessis Revisited As A Cautionary Tale In Legal Ethics And Professionalism, Andrew Flavelle Martin
Articles, Book Chapters, & Popular Press
From time to time, a Premier or Prime Minister appoints themself as Attorney General. In this article, I argue that this dual portfolio is inherently and incurably problematic and should be avoided and indeed prohibited. I do so from the perspective of legal ethics and professionalism. The springboard for my analysis is the conduct of Quebec Premier and Attorney General Maurice Duplessis in the classic case of Roncarelli v Duplessis. While there may well be perceived benefits that tempt Premiers to serve in the dual role, any lawyer who does so unavoidably violates his or her professional obligations. For …
The Duty Of Legislative Counsel As Guardians Of The Statute Book: Sui Generis Or A Professional Duty Of Lawyers?, Andrew Flavelle Martin
The Duty Of Legislative Counsel As Guardians Of The Statute Book: Sui Generis Or A Professional Duty Of Lawyers?, Andrew Flavelle Martin
Articles, Book Chapters, & Popular Press
Legislative counsel—those who draft legislation for the executive or for legislative assemblies—are largely overlooked in the Canadian legal literature and case law. One respect in which legislative counsel appear to be unique is their duty as guardians or keepers of the statute book. This article argues that this Guardian duty is best understood as a professional duty of legislative counsel as lawyers. In the same way that all lawyers have professional duties as officers of the court, though these duties are most relevant to litigators, all lawyers have professional duties as officers of the statute book, though these duties are …
The Informed Consent Doctrine In Legal Malpractice Law, Vincent R. Johnson
The Informed Consent Doctrine In Legal Malpractice Law, Vincent R. Johnson
Faculty Articles
The doctrine of informed consent is now deeply embedded into the law of legal ethics. In legal malpractice litigation, the doctrine holds that a lawyer has a duty to disclose to a client material information about the risks and alternatives associated with a course of action. A lawyer who fails to make such required disclosures and fails to obtain informed consent is negligent, regardless of whether the lawyer otherwise exercises care in representing a client. If such negligent nondisclosures cause damages, the lawyer can be held accountable for the client's losses.
Shifting the focus of a legal malpractice action from …
Report To The Wisconsin Office Of Lawyer Regulation: Analysis Of Grievances Filed In Criminal And Family Matters From 2013-2016, Leslie C. Levin, Susan Saab Fortney
Report To The Wisconsin Office Of Lawyer Regulation: Analysis Of Grievances Filed In Criminal And Family Matters From 2013-2016, Leslie C. Levin, Susan Saab Fortney
Faculty Scholarship
In many states, the highest number of docketed grievances arise out of criminal and family law matters. This report analyzes the 4,898 grievances filed with the Wisconsin Office of Lawyer Regulation (“OLR”) in family or criminal law matters during the period from 2013-2016. The OLR provided the data, enabling analysis of the grievances by gender, age, length of time since law school graduation, type of matter, prior experience with diversion or discipline, and geographical location. The data also revealed the frequency of allegations by practice matter, the types of allegations that led to discipline, and the frequency with which lawyers …
Tiptoeing Through The Landmines: The Evolution Of States’ Legal Ethics Authority Regarding Representing Cannabis Clients, Karen E. Boxx
Tiptoeing Through The Landmines: The Evolution Of States’ Legal Ethics Authority Regarding Representing Cannabis Clients, Karen E. Boxx
Seattle University Law Review
Despite the continued federal classification of cannabis as an illegal drug, states have legalized the possession, use, production, and sale of cannabis. In order to do so, the states have created complex regulatory schemes to control and monitor the cannabis industry and satisfy the federal government concerns, such as use by minors and organized crime involvement. First, this Article presents the ethical dilemma of cannabis lawyering. Second, this Article describes the history, evolution, and current status of the various states’ pronouncements on a lawyer’s ethical duties with respect to the business and use of cannabis that may be legal under …
Folk Hero Or Legal Pariah? A Comment On The Legal Ethics Of Edgar Schmidt And Schmidt V Canada (Attorney General), Andrew Flavelle Martin
Folk Hero Or Legal Pariah? A Comment On The Legal Ethics Of Edgar Schmidt And Schmidt V Canada (Attorney General), Andrew Flavelle Martin
Articles, Book Chapters, & Popular Press
In Schmidt v Canada (Attorney General), government lawyer Edgar Schmidt sought a declaration that the Department of Justice and the Minister of Justice were misinterpreting legislation requiring the Minister to inform the House of Commons if government bills are inconsistent with the Canadian Charter of Rights and Freedoms. Schmidt was one of the lawyers who made recommendations under that legislation. Schmidt thus presents an unusual case study in legal ethics: what should, or can, a lawyer do when a client rejects the lawyer’s advice? What if the client is the government, and the advice is about fundamental rights? This …
Imputed Liability For Supervising Prosecutors: Applying The Military Doctrine Of Command Responsibility To Reduce Prosecutorial Misconduct, Geoffrey S. Corn, Adam M. Gershowitz
Imputed Liability For Supervising Prosecutors: Applying The Military Doctrine Of Command Responsibility To Reduce Prosecutorial Misconduct, Geoffrey S. Corn, Adam M. Gershowitz
Adam M. Gershowitz
No abstract provided.
An Empirical Investigation Of Third Party Consumer Litigant Funding, Ronen Avraham, Anthony J. Sebok
An Empirical Investigation Of Third Party Consumer Litigant Funding, Ronen Avraham, Anthony J. Sebok
Faculty Articles
This is the first large-scale empirical study of consumer third-party litigation funding in the United States. Despite being part of the American legal system for more than two decades there has been almost no real data-driven empirical study to date. We analyzed funding requests from American consumers in over 100,000 cases over a twelve year period. This proprietary data set was provided to us by one of the largest consumer litigation funder in the United States.
Our results are striking and important. We find that the funder plays an important role in the American legal system by screening cases. Our …
Legal Ethics And Canada's Military Lawyers, Andrew Martin
Legal Ethics And Canada's Military Lawyers, Andrew Martin
Articles, Book Chapters, & Popular Press
English Abstract: Military lawyers—lawyers who are legal officers in the Canadian Forces— are virtually ignored in the Canadian legal literature. This article assesses what appear to be the most striking potential legal ethics issues facing military lawyers. Several of these issues arise because military lawyers are both lawyers and military officers at the same time, and therefore face two sets of obligations that interact in complex ways. Some issues, however, arise because of the special practice contexts of military lawyers, for example, advising military commanders on the law of armed conflict. As context for this discussion, the article examines the …
Designing And Improving A System Of Proactive Management-Based Regulation To Help Lawyers And Protect The Public, Susan Saab Fortney
Designing And Improving A System Of Proactive Management-Based Regulation To Help Lawyers And Protect The Public, Susan Saab Fortney
Susan S. Fortney
Increasingly, lawyers and decision-makers are recognizing the limitations and consequences of current approaches to attorney regulation. Inspired by developments in other countries, regulators in the United States and Canada have started the process of exploring innovative approaches, including proactive management-based regulation. The term, proactive-management regulation (PMBR), was first used by Professor Ted Schneyer to refer to a regulatory approach designed to promote ethical law practice by assisting lawyers with practice management.
The seed for PMBR was first planted in the Australian state of New South Wales (NSW). It grew out of the legislation that allowed limited liability and non-lawyer ownership …
Legal Ethics And The Political Activity Of Government Lawyers, Andrew Martin
Legal Ethics And The Political Activity Of Government Lawyers, Andrew Martin
Articles, Book Chapters, & Popular Press
The ability to engage in political activity is an essential feature of a democratic society. However, the ability of government lawyers to do so is unclear. While most governments have passed legislation identifying permissible political activity of their employees, it is unclear how the professional obligations of lawyers apply in this context and how these professional obligations interact with this legislation. This article answers these questions. The duty of loyalty to the client requires most government lawyers to refrain from all political activity at the same level of government. The special professional obligations of Crown prosecutors require these lawyers to …
Orphans No More: A Review Of Elizabeth Sanderson, Government Lawyering: Duties And Ethical Challenges Of Government Lawyers, Andrew Martin
Orphans No More: A Review Of Elizabeth Sanderson, Government Lawyering: Duties And Ethical Challenges Of Government Lawyers, Andrew Martin
Articles, Book Chapters, & Popular Press
Elizabeth Sanderson’s Government Lawyering: Duties and Ethical Challenges of Government Lawyers is the first comprehensive and long-form assessment of why government lawyers are different than lawyers in private practice and why that difference matters. This book review essay begins by setting out Sanderson’s position on a few concepts key to legal ethics for government lawyers: a definition of government lawyers, an account of the duties that apply to them, and the identity of the client. It then goes on to highlight the book’s four major contributions: an emphasis on the role of the Deputy Attorney General as an interface between …
“The Lost Lawyer” Regained: The Abiding Values Of The Legal Profession, Robert Maccrate
“The Lost Lawyer” Regained: The Abiding Values Of The Legal Profession, Robert Maccrate
Dickinson Law Review (2017-Present)
No abstract provided.
Law Firm Economics And Professionalism, Ward Bower
Law Firm Economics And Professionalism, Ward Bower
Dickinson Law Review (2017-Present)
Both Dean Kronman in The Lost Lawyer and Professor Glendon in A Nation Under Lawyers attribute some of the problems and challenges facing lawyers today to economic pressures and to a preoccupation with profits and fees. For Kronman, this economic focus interferes with the “moral detachment” necessary for achievement of the “lawyer-statesman” ideal. For Glendon, professional dilemmas caused by the deterioration of the legal economy, competition in the marketplace, lawyer-shopping by clients, early specialization, lack of mentoring and emphasis on the billable hour have created an unhappy generation of ethically challenged practitioners.
Both authors accurately assess the state of the …
Lawyers In The Mist: The Golden Age Of Legal Nostalgia, Marc Galanter
Lawyers In The Mist: The Golden Age Of Legal Nostalgia, Marc Galanter
Dickinson Law Review (2017-Present)
No one watching the contemporary furor over the litigation explosion and lawsuits devouring America can fail to be impressed by the power of folklore to overwhelm workaday organized social knowledge. Time and again, the protestations of bean-counters and skeptics are vanquished by stories about perverse institutions peopled by malingering plaintiffs, greedy lawyers, capricious jurors, and arrogant judges, proving yet again that it is not what is so that matters, but what people—at least for the moment—think is so. Tenacious belief may not make it so, but can have powerful effects.
In this essay I address another cluster of folklore about …
Money Didn’T Buy Happiness, Lawrence J. Fox
Money Didn’T Buy Happiness, Lawrence J. Fox
Dickinson Law Review (2017-Present)
No abstract provided.
The Fault In Legal Ethics, Anthony T. Kronman
The Fault In Legal Ethics, Anthony T. Kronman
Dickinson Law Review (2017-Present)
No abstract provided.
Designing And Improving A System Of Proactive Management-Based Regulation To Help Lawyers And Protect The Public, Susan Saab Fortney
Designing And Improving A System Of Proactive Management-Based Regulation To Help Lawyers And Protect The Public, Susan Saab Fortney
Faculty Scholarship
Increasingly, lawyers and decision-makers are recognizing the limitations and consequences of current approaches to attorney regulation. Inspired by developments in other countries, regulators in the United States and Canada have started the process of exploring innovative approaches, including proactive management-based regulation. The term, proactive-management regulation (PMBR), was first used by Professor Ted Schneyer to refer to a regulatory approach designed to promote ethical law practice by assisting lawyers with practice management.
The seed for PMBR was first planted in the Australian state of New South Wales (NSW). It grew out of the legislation that allowed limited liability and non-lawyer ownership …
Establishing Best Billing Practices Through Billing Guidelines: Fostering Trust And Transparency On Legal Costs, Laura Johnson, Howard Tollin, Marci Waterman, Sarah Mills-Dirlam
Establishing Best Billing Practices Through Billing Guidelines: Fostering Trust And Transparency On Legal Costs, Laura Johnson, Howard Tollin, Marci Waterman, Sarah Mills-Dirlam
University of Arkansas at Little Rock Law Review
No abstract provided.
Addressing Access To Justice Through New Legal Service Providers: Opportunities And Challenges, Alice Woolley, Trevor C. W. Farrow
Addressing Access To Justice Through New Legal Service Providers: Opportunities And Challenges, Alice Woolley, Trevor C. W. Farrow
Trevor C. W. Farrow
Most informed observers of the Canadian and American legal systems accept the existence of a significant crisis in access to justice. One possible solution is to permit paralegals, notaries or other licensed individuals with training more limited than that enjoyed by a licensed attorney to practice in certain areas of law. This paper supports these developments, arguing for a regulated and incremental introduction of new legal service providers into the legal services market. It considers the appropriate training and scope of practice for new legal service providers, and some of the associated opportunities and challenges.
Remarks: The Declining Role Of Outside Counsel In Enhancing Ethical Conduct By Corporations, Jed S. Rakoff
Remarks: The Declining Role Of Outside Counsel In Enhancing Ethical Conduct By Corporations, Jed S. Rakoff
Seattle University Law Review
Judge Rakoff’s remarks from the seventh annual Berle Symposium, held May 26–27, 2015 at Seattle University School of Law.
A Behavioral Theory Of Legal Ethics, Andrew M. Perlman
A Behavioral Theory Of Legal Ethics, Andrew M. Perlman
Indiana Law Journal
Behavioral insights have informed many areas of law, including the field of professional responsibility. Those insights, however, have had only a modest effect on the foundational theories of legal ethics, even though those theories are, at their core, prescriptions about human behavior. The reality is that lawyers’ conduct cannot be understood, theorized about, or used to produce the best possible regulations without an appreciation for the limits on human rationality and objectivity. A behavioral theory of legal ethics offers a way to incorporate those realties into the foundational debates on a lawyer’s professional role so that scholars can produce more …
Addressing Access To Justice Through New Legal Service Providers: Opportunities And Challenges, Alice Woolley, Trevor C. W. Farrow
Addressing Access To Justice Through New Legal Service Providers: Opportunities And Challenges, Alice Woolley, Trevor C. W. Farrow
Articles & Book Chapters
Most informed observers of the Canadian and American legal systems accept the existence of a significant crisis in access to justice. One possible solution is to permit paralegals, notaries or other licensed individuals with training more limited than that enjoyed by a licensed attorney to practice in certain areas of law. This paper supports these developments, arguing for a regulated and incremental introduction of new legal service providers into the legal services market. It considers the appropriate training and scope of practice for new legal service providers, and some of the associated opportunities and challenges.
Transformations In Health Law Practice: The Intersections Of Changes In Healthcare And Legal Workplaces, Louise G. Trubek, Barbara Zabawa, Paula Galowitz
Transformations In Health Law Practice: The Intersections Of Changes In Healthcare And Legal Workplaces, Louise G. Trubek, Barbara Zabawa, Paula Galowitz
Faculty Works
The passage and implementation of the Affordable Care Act is propelling transformations in health care. The transformations include integration of clinics and hospitals, value based care, patient centeredness, transparency, computerized business models and universal coverage. These shifts are influencing the practice of health law, a vibrant specialty field considered a "hot" area for new lawyers. The paper examines how the transformations in health care are intersecting with ongoing trends in law practice: increase in in-house positions, collaboration between medical and legal professionals, and the continued search for increased access to legal representation for ordinary people. Three health law workplace sites …
Something's Afoot And It's Time To Pay Attention: Thinking About Lawyer Regulation In A New Way, Laurel Terry
Something's Afoot And It's Time To Pay Attention: Thinking About Lawyer Regulation In A New Way, Laurel Terry
Faculty Scholarly Works
No abstract provided.
Solicitation By Defense Counsel: Ethical Pitfalls When Corporate Defense Counsel Offers Representation To Witnesses, Barry R. Temkin, Michael H. Stone
Solicitation By Defense Counsel: Ethical Pitfalls When Corporate Defense Counsel Offers Representation To Witnesses, Barry R. Temkin, Michael H. Stone
Barry R. Temkin
The ban on solicitation by attorneys in ABA Model Rule of Professional Conduct 7.3, and its state counterparts, has generally been used to prevent ambulance chasing by plaintiffs’ attorneys. However, a recent New York decision has raised the possibility that a defense lawyer could be disciplined for solicitation when offering his services to a non-party witness employed by a corporate defendant, even when doing so for no additional fee. The court in Rivera v. Lutheran Medical Center, referred a prominent national law firm to the Departmental Disciplinary Committee and disqualified the firm from representing several current and former employees of …