Law Commons^™

The Lawyer's Duty Of Competence In A Climate-Imperiled World, John C. Dernbach, Irma S. Russell, Matthew Bogoshian

Faculty Works

The United States has more than 1.3 million practicing lawyers. Under Model Rule 1.1 of the ABA Model Rules of Professional Conduct and every state’s rules of conduct, each of these lawyers owes clients competent representation. Under the rule, “[c]ompetent representation requires the knowledge, skill, thoroughness and preparation reasonably necessary for the services.” While law and rules will undoubtedly change in response to the climate crisis, the duty of competence does not await such change or legal reform. The ubiquitous nature of the duty of competence means it is applicable to each lawyer now and will continue to evolve as …

Place-Based Versus Practice-Based Norms For American Lawyers: "It's The End Of The World As We Know It (And I Feel Fine)", James E. Moliterno

Scholarly Articles

This Article acknowledges the growing trend toward practice-based lawyer norms, points out how it allows interaction between the existing place-based norms and the new practice-based norms, and compares this movement with the existing regulatory conditions outside the US. If there is movement from the world as we know it (place-based norms) to a world as it may come to be (practice-based norms), is the change tragic, inevitable, risky, in line with the rest of the global legal profession, or all of the above and more? Specifically, how would such an evolution affect the core duty of lawyer-client confidentiality?

Outsourcing Self-Regulation, Marsha Griggs

All Faculty Scholarship

Answerable only to the courts that have the sole authority to grant or withhold the right to practice law, lawyers operate under a system of self-regulation. The self-regulated legal profession staunchly resists external interference from the legislative and administrative branches of government. Yet, with the same fervor that the legal profession defies non-judicial oversight, it has subordinated itself to the controlling influence of a private corporate interest. By outsourcing the mechanisms that control admission to the bar, the legal profession has all but surrendered the most crucial component of its gatekeeping function to an industry that profits at the expense …

Aba Model Rule 8.4(G), Discriminatory Speech, And The First Amendment, Bruce Green, Rebecca Roiphe

Articles & Chapters

The ABA adopted Model Rule 8.4(g), which targets certain speech and conduct that are based on “race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.” In particular, according to the accompanying comment, Rule 8.4(g) reaches speech that is “derogatory and demeaning” or that “manifests bias or prejudice towards others” and is “harmful” (including, presumably, emotionally harmful). This rule targets a significant amount of speech that would be constitutionally protected if it were uttered by a nonlawyer. This article argues that there is no justification for treating lawyers differently from others in many …

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, …

How To Raise Disagreements With Senior Attorneys, Richard L. Heppner Jr.

Law Faculty Publications

As a new attorney, you may receive assignments from your supervising attorney like:

• find a case that stands for this legal argument,

• draft the section of the brief arguing that the court has no jurisdiction, or

• write a client memo explaining why this asset purchase is a good idea.

Sometimes you will discover that the initial assignment isn’t necessarily the best approach. This paper discusses how to engage your supervising attorney in a such situations.

Professional Responsibility, Legal Malpractice, Cybersecurity, And Cyber-Insurance In The Covid-19 Era, Ethan S. Burger

St. Mary's Journal on Legal Malpractice & Ethics

In response to the COVID-19 outbreak, law firms conformed their activities to the Centers for Disease Control and Prevention (CDC), Occupational Safety and Health Administration (OSHA), and state health authority guidelines by immediately reducing the size of gatherings, encouraging social distancing, and mandating the use of protective gear. These changes necessitated the expansion of law firm remote operations, made possible by the increased adoption of technological tools to coordinate workflow and administrative tasks, communicate with clients, and engage with judicial and governmental bodies.

Law firms’ increased use of these technological tools for carrying out legal and administrative activities has implications …

Sufficiently Judicial: The Need For A Universal Ethics Rule On Attorney Behavior In Legislative Impeachment Trials, Joshua E. Kastenberg

St. Mary's Journal on Legal Malpractice & Ethics

In assessing an ethics, rule-based prohibition against New Jersey governmental attorneys representing clients against the state for matters the state had previously assigned to them, the state supreme court noted: “In our representative form of government, it is essential that the conduct of public officials and employees shall hold the respect and confidence of the people.”

In the beginning of 2020, the United States Senate held an impeachment trial to determine whether former President Donald J. Trump had committed offenses forwarded by the House of Representatives. A U.S. Senate trial, much like state senate trials, is both judicial and political …

Negative Commentary—Negative Consequences: Legal Ethics, Social Media, And The Impact Of Explosive Commentary, Jan L. Jacobowitz Ms.

St. Mary's Journal on Legal Malpractice & Ethics

Connecting and sharing on social media has opened communication channels and provided instantaneous information to billions of people worldwide. Commentary on current events, cases, and negative online reviews may be posted in an instant, often without pause or thought about the potential repercussions. This global phenomenon may not only provide news of the day updates, humor, and support for those in need but also is replete with ethical landmines for the unwary lawyer. Lawyers commenting on current events, their cases, or responding to a client’s negative online review, have suffered damage to their careers. In some instances, they have even …

Specialty Bar Associations And The Marketing Of Ethics: The Example Of The Academy Of Adoption Attorneys, Malinda L. Seymore

Faculty Scholarship

In a world of lawyer jokes, memes of sleazy lawyers and the ubiquity of bad lawyers in television shows and movies, lawyers have reason to push back against negative public perceptions of lawyers’ ethics. This article examines the role of specialty bar associations, by using the example of the Academy of Adoption Attorneys, in marketing ethics to the public.

Specialty bar associations have been seen as sites of lawyer socialization and professionalism. Though there are thousands of specialty bar associations with aspirational ethical codes, the Academy of Adoption Attorneys is unusual among such associations in having a mandatory ethics code, …

When Mental Health Meets “The One-Armed Man” Defense: How Courts Should Deal With Mccoy Defendants, Farid Seyyedi

St. Mary's Journal on Legal Malpractice & Ethics

The Supreme Court’s opinion in McCoy v. Louisiana held that a defendant has a constitutional right to insist their attorney not concede guilt as to any element of an offense, even if doing so is the only reasonable trial strategy to give the defendant a chance at life imprisonment instead of the death penalty. Under McCoy’s holding, a defendant can insist on maintaining their innocence—even in the face of overwhelming evidence—and force their attorney to pursue a defense that will land them on death row. The Supreme Court’s holding makes clear that a strategic concession of guilt at trial—over …

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 Search For Clarity In An Attorney's Duty To Google, Michael Thomas Murphy

All Faculty Scholarship

Attorneys have a professional duty to investigate relevant facts about the matters on which they work. There is no specific rule or statute requiring that an attorney perform an internet search as part of this investigation. Yet attorneys have been found by judges to violate a “Duty to Google” when they have failed to conduct an internet search for relevant information about, for example, a claim, their own client, and even potential jurors in a trial.

So much information is now available to attorneys so easily in electronic search results, it is time to wonder where, when, and how much …

Book Review Essay: Jewish And American Law: A Comparative Study. (Vols. 1 And 2) By Samuel J. Levine, Marie A. Failinger

Touro Law Review

No abstract provided.

Professional Identity Formation Through Pro Bono Revealed Through Conversation Analysis, Linda F. Smith

Utah Law Faculty Scholarship

Law school is supposed to teach legal analysis and lawyering skills as well as mold law students’ professional identities. Pro Bono work provides an opportunity for law students to use their legal knowledge and skills and to develop their identities as emerging legal professionals. As important as both pro bono work and identity formation are, there has been very little research regarding how pro bono contributes to students’ identity formation. This paper utilizes a data set of over forty student-client consultations at a pro bono brief advice clinic that have been recorded and transcribed. It uses conversation analysis to study …

Learning From Our Mistakes: Conversation Analysis Reveals Best Practices For A Student-Staffed Pro Bono Project, Linda F. Smith

Utah Law Faculty Scholarship

Law schools make “pro bono” opportunities available to students to introduce them to the responsibilities of the profession. Often these pro bono law students help in “brief advice” projects staffed by volunteer attorneys. This staffing-supervision structure presents challenges in ensuring clients receive competent, individualized advice and the students receive adequate oversight so that this is a positive learning experience for them. This paper analyzes transcripts from 46 recorded student-client interviews and 35 student-attorney consultations. It focuses on those cases where there were “errors or omissions” -- either the client got some erroneous advice or the client did not receive complete, …

The Drive To Advise: A Study Of Law Students At A Pro Bono Brief Advice Project, Linda F. Smith

Utah Law Faculty Scholarship

Law school aims to teach lawyering skills as well as legal analysis. While all students must acquire the skills of legal analysis, research and writing, law schools may decide what other skills to teach. Students also acquire skills and habits in informal ways, through clerkship experiences or pro bono volunteer work. However, there has been almost no study of what “skills” students pick up in these informal ways, and whether there are skills that would better be learned as part of the curriculum. This study looks at the skill of legal interviewing employed by students in a pro bono brief …

Making The Modern American Legal Profession, 1969–Present, Michael Ariens

St. Mary's Law Journal

The American legal profession has changed dramatically over the past half-century greatly due to the solution and problem of “scale.” This was most noticeable after the American Bar Association’s adoption of the Code of Professional Responsibility. The reputation of lawyers and the legal community would continue to evolve in the eyes of the public. As such, the demand for lawyers and large law firms who had the capacity and means to handle such vast and varied issues would present itself. The increasing demand from large law firms over the years led to unprecedented growth and impact to the way in …

Professional Responsibility: An Open-Source Casebook, Brian L. Frye, Elizabeth Schiller

Law Faculty Books and Chapters

We wanted this casebook to be as easy to use and understand as possible. Accordingly, we included not only cases, but also the text of the rules and restatements, as well as concise explanations of the relevant law. Each chapter of the book addresses a different issue, in the following format. First, it clearly and concisely explains the relevant law governing that issue. Then provides the relevant text of any statutes, Model Rules, sections of the Restatement of the Law Governing Lawyers, or other sources, with a link to an open-source versions of the full text, when available. It provides …

Hidden Nondefense: Partisanship In State Attorneys General Amicus Briefs And The Need For Transparency, Lisa Grumet

Articles & Chapters

In all fifty states, the State Attorney General (SAG) — as the state’s chief legal officer — is charged with defending state laws that are challenged in court. If an SAG declines to defend or challenges a state law on the ground that it is unconstitutional — an action scholars describe as “nondefense” — the SAG ordinarily will disclose this decision to the public.

This Essay discusses a hidden form of nondefense that can occur when SAGs file amicus curiae briefs on behalf of their states in matters before the U.S. Supreme Court. Surprisingly, some SAGs have joined multistate amicus …

Torts: Missing The Forest For The Factors—Frederick V. Wallerich, 907 N.W.2d 167 (Minn. 2018), Michelle Gibbons

Mitchell Hamline Law Review

No abstract provided.

Keeping Pace With Technology-Driven Profession, Jodi Nafzger

Jodi Nafzger

With the increasing use of E-discovery and paperless judicial systems, members of the legal profession must consider new methods for managing the overwhelming volume of information and be competent with the emerging technologies at the center of modern law practice. It is also increasingly clear that law schools must teach the technology of law practice. The ABA Model Rules of Professional Conduct call for law school curriculum which familiarizes aspiring lawyers with important technology tools. With practical skills training in the use of effective technology tools, the next generation of lawyers can bring an enhanced mastery of business and technology …

Competing Liabilities: Responding To Evidence Of Child Abuse That Surface During The Attorney-Client Relationship, Alison Beyea

Maine Law Review

Kevin Adams, a practicing attorney in Maine, represents John Brown in a dispute with Brown's landlord. Brown is facing eviction as a result of his inability to pay the rent. Over the course of the representation, Adams has come to believe that Brown is abusing his son. Brown--who is working two jobs but still cannot pay his rent--has told Adams of the incredible pressure he is facing. Brown has admitted that the pressure is getting to him and that he feels bad that he has been “taking it out on the kid.” Brown also told Adams that he had been …

Towering Figures, Enigmas, And Responsive Communities In American Legal Ethics, Thomas L. Shaffer

Maine Law Review

The Annual Edward S. Godfrey Lecture at the University of Maine School of Law was held on November 12, 1998. Professor Thomas L. Shaffer, Edward S. Godfry Professor of Law, presented “Towering Figures, Enigmas, and Responsive Communities in American Legal Ethics.”

Fostering Client Altruism And The Common Good In The Practice Of Law: Learning From Emerging Movements In Business And Economics, Ann Juergens, Diane Galatowitsch

Mitchell Hamline Law Review

No abstract provided.

The Lawyer As A Public Citizen, Cruz Reynoso

Maine Law Review

The Eleventh Annual Frank M. Coffin Lecture on Law and Public Service was held on October 17, 2002. Cruz Reynoso, Boochever and Bird Professor of Law at the University of California at Davis, School of Law and retired Associate Justice of the California Supreme Court, delivered the lecture. Established in 1992, the lecture honors Judge Frank M. Coffin, Senior Circuit Judge of the United States Court of Appeals for the First Circuit, an inspiration, mentor, and friend to the University of Maine School of Law. The Board and Staff of Volume 55 are honored to continue the tradition of publishing …

Mutually Assured Protection Among Large U.S. Law Firms, Tom Baker, Rick Swedloff

All Faculty Scholarship

Top law firms are notoriously competitive, fighting for prime clients and matters. But some of the most elite firms are also deeply cooperative, willingly sharing key details about their finances and strategy with their rivals. More surprisingly, they pay handsomely to do so. Nearly half of the AmLaw 100 and 200 belong to mutual insurance organizations that require member firms to provide capital; partner time; and important information about their governance, balance sheets, risk management, strategic plans, and malpractice liability. To answer why these firms do so when there are commercial insurers willing to provide coverage with fewer burdens, we …

Just And Speedy: On Civil Discovery Sanctions For Luddite Lawyers, Michael Thomas Murphy

All Faculty Scholarship

This article presents a theoretical model by which a judge could impose civil sanctions on an attorney - relying in part on Rule 1 of the Federal Rules of Civil Procedure - for that attorney’s failure to utilize time- and expense-saving technology.

Rule 1 now charges all participants in the legal system to ensure the “just, speedy and inexpensive” resolution of disputes. In today’s litigation environment, a lawyer managing a case in discovery needs robust technological competence to meet that charge. However, the legal industry is slow to adopt technology, favoring “tried and true” methods over efficiency. This conflict is …

Do Lawyers Matter? The Effect Of Legal Representation In Civil Disputes, Emily S. Taylor Poppe, Jeffrey J. Rachlinski

Jeffrey J Rachlinski

With declining law school enrollments, rising rates of pro se litigation, increasing competition from international lawyers and other professionals, and disparaging assessments from the Supreme Court, the legal profession is under increasing attack. Recent research suggesting that legal representation does not benefit clients has further fueled an existential anxiety in the profession. Are lawyers needed and do they matter? In this Article, we review the existing empirical research on the effect of legal representation on civil dispute outcomes. Although the pattern of results has complexities, across a wide range of substantive areas of law (housing, governmental benefits, family law, employment …

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

Trevor C. W. Farrow

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. And until all interests are identified and placed squarely …