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Conflicts Of Interest For Former Law Firm Clerks Turned Lawyers, Daniel Haley
Conflicts Of Interest For Former Law Firm Clerks Turned Lawyers, Daniel Haley
St. Mary's Journal on Legal Malpractice & Ethics
There is no consensus for how the legal profession should treat a lawyer who has a conflict that arises from their time working as a law clerk while in law school. The majority of states allow a lawyer to be screened from participation if there is a conflict that arises from work they performed while still in law school. Nonetheless, not all states have adopted the Model Rules, and not all states that have adopted them accept and apply their rules uniformly. Clerkships are beneficial to both the student and the potential employer, and to limit these educational experiences due …
Electronic Social Media: Friend Or Foe For Judges, M. Sue Kurita
Electronic Social Media: Friend Or Foe For Judges, M. Sue Kurita
St. Mary's Journal on Legal Malpractice & Ethics
The use of electronic social communication has grown at a phenomenal rate. Facebook, the most popular social networking website, has over 1,968,000,000 users—a number that has exponentially grown since its inception in 2004. The number of judges accessing and using electronic social media (ESM) has also increased. However, unlike the general population, judges must consider constitutional, ethical, technical, and evidentiary implications when they use and access ESM. The First Amendment forbids “abridging the freedom of speech” and protects the expression of personal ideas, positions, and views. However, the American Bar Association’s Model Code of Judicial Conduct and the Texas Code …
Responding To Judicial And Lawyer Misconduct: Analyzing A Survey Of State Trial Court Judges, Peter M. Koelling
Responding To Judicial And Lawyer Misconduct: Analyzing A Survey Of State Trial Court Judges, Peter M. Koelling
St. Mary's Journal on Legal Malpractice & Ethics
While reported cases or incidents may give us insight into the interpretation of Rule 2.15 of the Model Code of Judicial Conduct, they do not give us a sense of how often judges undertake the obligation to act under the rule. The Judicial Division of the American Bar Association developed a survey to explore the interpretation and the implementation of Rule 2.15 of the Model Code of Judicial Conduct, and to determine how and in what manner state trial court judges responded to ethical violations by lawyers and other judges. The survey looked back over a ten-year period and was …
Intra Law Firm Communications Regarding Questionable Attorney Conduct., Evan King, Jeffrey A. Parness
Intra Law Firm Communications Regarding Questionable Attorney Conduct., Evan King, Jeffrey A. Parness
St. Mary's Journal on Legal Malpractice & Ethics
When questions are raised regarding a law firm attorney's representation of a firm client, the questioned attorney often wishes to seek legal counsel. A conferral will often benefit the attorney, the firm, and the client. Conferences regarding questioned conduct should be encouraged, not discouraged. To encourage these beneficial conferrals, a broad attorney-client communication privilege and a broad work-product protection (or privilege) should be available. Availability should not be dependent upon whether in-house, outside, or other legal counsel is employed. While earlier federal precedents were split regarding the availability of the attorney-client communication privilege in the in-house counsel setting, increasingly therein …
Proof Of Exoneration In Legal Malpractice Cases: The Peeler Doctrine And Its Limits In Texas And Beyond., John G. Browning, Lindsey Rames
Proof Of Exoneration In Legal Malpractice Cases: The Peeler Doctrine And Its Limits In Texas And Beyond., John G. Browning, Lindsey Rames
St. Mary's Journal on Legal Malpractice & Ethics
This article examines the requirements of "actual innocence" or exoneration as a prerequisite for bringing a claim of legal malpractice against a criminal defense attorney. It analyzes the public policy underpinnings and differing approaches taken in those jurisdictions that have adopted an "actual innocence" requirement. To illustrate the way in which this comparatively recent phenomenon has developed, the Article views the exoneration doctrine through the prism of Texas law, analyzing the doctrine's emergence in Peeler v. Hughes & Luce and discussing how it has expanded over the years. Yet even as this "actual innocence" doctrine has expanded in Texas, recent …
Controversial Defenses To Legal Malpractice Claims: Are Attorney-Experts Being Asked To Be Advocates?, David S. Caudill
Controversial Defenses To Legal Malpractice Claims: Are Attorney-Experts Being Asked To Be Advocates?, David S. Caudill
St. Mary's Journal on Legal Malpractice & Ethics
Attorney-experts in legal malpractice litigation are like many other experts. Although easily distinguishable from experts offering science based testimony, attorney expertise is similar to that of witnesses offering experience-based testimony, and very much like the expertise of a physician in a medical malpractice case. An attorney-expert is, however, somewhat unique among experts in terms of the type of expertise offered, the inherent risk that the expert's testimony will invade the province of the judge or jury, and, I believe, the risk of over-testifying. First, there is a problem of defining the attorney-expert's "expertise" to ensure that the expert is not …
Online Legal Advice: Ethics In The Digital Age, Paige A. Thomas
Online Legal Advice: Ethics In The Digital Age, Paige A. Thomas
St. Mary's Journal on Legal Malpractice & Ethics
The rise of the Internet changed the way initial interactions between lawyers and prospective clients happen. Unfortunately, a host of problems concerning privacy rights and consumer usage have emerged. In this digital age, where immediacy and response time are driving factors in an attorney’s online presence, the approach to establish an attorney-client relationship is far more informal. Due to the quick rise of the Internet and social media, the Model Rules of Professional Conduct do not offer a clear answer for attorneys using social media. An inherent danger lies in off-the-cuff remarks, made on the Internet—a platform generally associated with …
Characterizing Ghostwriting., Debra Lyn Bassett
Characterizing Ghostwriting., Debra Lyn Bassett
St. Mary's Journal on Legal Malpractice & Ethics
It is well known that legal services are costly and that existing pro bono services are inadequate to help every individual who would benefit from legal assistance. Compounding this unmet need are various restrictions on the types of clients and types of cases that qualify for pro bono services. For example, Legal Services Corporation lawyers may not represent undocumented individuals, and may not undertake a representation in an abortion, desegregation, or assisted suicide matter. One attempt to mitigate this unmet need is ghostwriting. Analogous to presidential speechwriting, ghostwriting in the legal context occurs when a lawyer drafts a pleading or …
The Agony Of Modern Legal Ethics, 1970-1985., Michael Ariens
The Agony Of Modern Legal Ethics, 1970-1985., Michael Ariens
St. Mary's Journal on Legal Malpractice & Ethics
When the American Bar Association (ABA) adopted its Code of Professional Responsibility at its annual meeting in August 1969, the American legal profession was a publicly respected and economically vibrant body. Lawyers, though always more feared than loved, became increasingly important in post-World War II America. The demand for their services exploded for a quarter-century, and lawyers assumed an increased role in the economic and political life of the United States. During the 1950s and early 1960s, the Cold War led American lawyers and other public figures to re-emphasize the rule of law as defining the difference between the United …
“Nudging” Better Lawyer Behavior: Using Default Rules And Incentives To Change Behavior In Law Firms, Nancy B. Rapoport
“Nudging” Better Lawyer Behavior: Using Default Rules And Incentives To Change Behavior In Law Firms, Nancy B. Rapoport
St. Mary's Journal on Legal Malpractice & Ethics
In the changing landscape of law practice—where law firm profits are threatened by such changes as increased pressure from clients to economize and the concomitant opportunities for clients to shop around for the most efficient lawyers—are there ways to change how things are done in law firms so that firms can provide more efficient and ethical service? This article suggests that an understanding of cognitive biases and basic behavioral economics will help law firms tweak their incentives and default rules to promote the improved delivery of legal services.
Avoid Being A Defendant: Estate Planning Malpractice And Ethical Concerns., Gerry W. Beyer
Avoid Being A Defendant: Estate Planning Malpractice And Ethical Concerns., Gerry W. Beyer
St. Mary's Journal on Legal Malpractice & Ethics
An estate planner may become a defendant in a case involving an estate he or she planned in two main ways. First, the attorney may have performed his or her services in a negligent manner potentially creating exposure to malpractice liability. Second, the attorney's conduct may have lapsed below ethically acceptable standards. This Article reviews the exposure an estate planner may have to malpractice liability with emphasis on Texas law and then focuses the reader's attention on ethical issues that may arise while preparing or executing the plan. The author hopes that by pointing out potentially troublesome areas, the reader …
Is Litigation Counsel Who Also Engages In Competitive Decision-Making Wrong For The Part?, David Hricik
Is Litigation Counsel Who Also Engages In Competitive Decision-Making Wrong For The Part?, David Hricik
St. Mary's Journal on Legal Malpractice & Ethics
In-house counsel wear different hats, and are often involved in business decisions regarding products, marketing, and other strategic issues. It was in this context that courts began to adopt protective orders that precluded in-house counsel who provided their clients advice with “competitive decision-making” from having access to information from a competitor disclosed in discovery. Prosecution bars present numerous issues for courts and counsel. It may be that because of prosecution counsel’s knowledge of the technology that her service as trial counsel would lead to cost savings and other benefits to her client. However, due to the myriad problems that arise …
Navigating The Pitfalls Of Implicit Bias: A Cognitive Science Primer For Civil Litigators, Nicole E. Negowetti
Navigating The Pitfalls Of Implicit Bias: A Cognitive Science Primer For Civil Litigators, Nicole E. Negowetti
St. Mary's Journal on Legal Malpractice & Ethics
Cognitive science has revealed that past experiences and prior assumptions, even those of which we are not conscious, greatly influence how humans perceive the world. Emerging research has demonstrated that attorneys and judges, like everyone else, are the products of their gender, ethnicity, race, and socioeconomic status. As a consequence, legal decision-making is susceptible to the subtle influences of implicit bias. Effective and ethical client advocacy requires an attorney to understand how her own implicit biases will affect her interactions with clients. An attorney should also acknowledge that implicit biases may affect a judge’s interpretation of her client’s story and …
Why Lawyers Do What They Do (When Behaving Ethically), James Moliterno, John Keyser
Why Lawyers Do What They Do (When Behaving Ethically), James Moliterno, John Keyser
St. Mary's Journal on Legal Malpractice & Ethics
Since the early 1990s, when David Wilkins published his influential paper “Who Should Govern Lawyers” in the Harvard Law Review, legal ethics scholars and professors have paid attention to the range of processes and devices that govern lawyer behavior. This Article will report on the results of a study currently underway that seeks to provide empirical evidence to answer the question posed in this Article’s title: Do lawyers train staff in confidentiality preservation because they fear bar discipline? Because they fear malpractice liability? Because they must comply with malpractice liability carrier demands? Because they honor client confidences for their own …
Mindful Ethics-A Pedagogical And Practical Approach To Teaching Legal Ethics, Developing Professional Identity, And Encouraging Civility, Jan L. Jacobowitz, Scott Rogers
Mindful Ethics-A Pedagogical And Practical Approach To Teaching Legal Ethics, Developing Professional Identity, And Encouraging Civility, Jan L. Jacobowitz, Scott Rogers
St. Mary's Journal on Legal Malpractice & Ethics
Aristotle spoke of virtue and ethics as a combination of practical wisdom and habituation—an individual must learn from the application of critical reasoning skills to experience. Perhaps one of the earliest proclamations of the value of experiential learning, the Aristotelian view, reappears throughout history and is captured once again by the Carnegie Foundation’s Report on Legal Education, which includes a call for instruction that provides practical skills and ethical grounding to complement the teaching of legal analysis. The Carnegie Report continues to play a role in the ongoing discussion of the need to reform legal education; a debate that is …
Disqualifying Defense Counsel: The Curse Of The Sixth Amendment, Keith Swisher
Disqualifying Defense Counsel: The Curse Of The Sixth Amendment, Keith Swisher
St. Mary's Journal on Legal Malpractice & Ethics
Lawyer disqualification—the process of ejecting a conflicted lawyer, firm, or agency from a case—is fairly routine and well-mapped in civil litigation. In criminal cases, however, there is an added ingredient: the Sixth Amendment. Gideon, which is celebrating its fiftieth anniversary, effectively added this ingredient to disqualification analysis involving indigent state defendants although it already existed in essence for both federal defendants and defendants with the wherewithal to retain counsel. Once a defendant is entitled to counsel, the many questions that follow include whether and to what extent conflicts of interest—or other misconduct—render that counsel constitutionally ineffective. Most cases and commentary …
“Payability” As The Logical Corollary To “Collectibility” In Legal Malpractice, Daniel D. Tostrud
“Payability” As The Logical Corollary To “Collectibility” In Legal Malpractice, Daniel D. Tostrud
St. Mary's Journal on Legal Malpractice & Ethics
The collectibility requirement as part of the legal malpractice plaintiff’s affirmative case is well-established and regarded by most courts as a critical part of the plaintiff’s proof of proximate causation. Conversely, where the legal malpractice plaintiff was the defendant in the underlying lawsuit, to be successful in the malpractice suit, the plaintiff must prove that it had a meritorious defense that would have made a difference to the outcome of the case had the lawyer properly asserted and pursued the defense. Prompted by the conflicting opinions of two federal courts on this issue, courts have begun to discuss whether the …
The Qualified Privilege Of Texas Lawyers To Defend Their Reputations., Clement J. Hayes
The Qualified Privilege Of Texas Lawyers To Defend Their Reputations., Clement J. Hayes
St. Mary's Journal on Legal Malpractice & Ethics
The technology-based society of the twenty-first century offers vast Internet resources that afford individuals easy access to information and means of communication. As a result, people spend substantial time online. Some Internet sites, such as Facebook, Twitter, Yelp, Angie's List and Google, provide consumers an online forum for sharing experiences and opinions. This development, while in many respects beneficial, is not without its drawbacks.
A Professional (Lack Of) Courtesy: The Emergence Of Expert Testimony In Legal And Medical Malpractice Cases., Jeffrey I.H. Soffer
A Professional (Lack Of) Courtesy: The Emergence Of Expert Testimony In Legal And Medical Malpractice Cases., Jeffrey I.H. Soffer
St. Mary's Journal on Legal Malpractice & Ethics
This Article investigates the role of expert testimony in legal malpractice and medical malpractice cases; analyzing similarities and differences between the two and the evolution of case law in this context. The Article also examines numerous challenges potential expert witnesses face, including harsh backlash from their colleagues and repercussions from their professional organizations. Finally, the Article discusses the future of the legal malpractice and medical malpractice landscape as it pertains to expert testimony and what we should look for moving forward.
The Limited Power Of The Bar To Protect Its Monopoly., Zachary C. Zurek
The Limited Power Of The Bar To Protect Its Monopoly., Zachary C. Zurek
St. Mary's Journal on Legal Malpractice & Ethics
The weaknesses within unauthorized practice of law (UPL) laws, coupled with shaky and fragmented enforcement, allow nonlawyers to perform activities that are otherwise characterized as the practice of law. Certified Public Accountants (CPAs), non-lawyers representing individuals in administrative settings, legal document preparation services, and other non-lawyers offering detailed legal advice pose serious threats to the bar and the individuals they serve. Uniformed standards of liability, ethics, and certification should be developed to ensure a balanced group of practitioners is available to the public. Pulling nonlawyers into the realm of liability for breach of professional responsibility would result in a higher …
The Litigation Privilege In Texas., Sam Johnson
The Litigation Privilege In Texas., Sam Johnson
St. Mary's Journal on Legal Malpractice & Ethics
Certain Texas cases have arisen where one party in litigation sues the attorney representing an opposing party. In response to such cases, Texas courts promulgated a judicial doctrine generally referred to as the litigation privilege or qualified immunity in order to protect litigants’ right to zealous representation from their attorney. The general rule is that one party to a lawsuit cannot sue the other party’s attorney. However, exceptions to this doctrine exist. This article explores the contours of the litigation privilege in Texas by analyzing the primary Texas cases where one party’s claim against the opposing party’s attorney was dismissed …
Arbitration Clauses In Fee Retainer Agreements., Chrissy L. Schwennsen
Arbitration Clauses In Fee Retainer Agreements., Chrissy L. Schwennsen
St. Mary's Journal on Legal Malpractice & Ethics
Due to the variety of approaches jurisdictions employ when determining the legal ramifications of arbitration clauses in fee retainer agreements, it’s best to include an explanation of the legal consequences of arbitration in the agreements. The attorney can, and should, fully explain the potential benefits of arbitration to clients. State courts take various viewpoints on the issue, and most stand contrary to the position of the American Bar Association (ABA) and state ethics committees on the subject. Consequently, attorneys must disclose truthful and accurate information regarding arbitration agreements when engaged in multijurisdictional practice in order to ensure protection from malpractice …
Can Federal Courts Exercise Jurisdiction Over State Law Malpractice Claims Arising Out Of Patent Law Disputes?, Isaac C. Ta
Can Federal Courts Exercise Jurisdiction Over State Law Malpractice Claims Arising Out Of Patent Law Disputes?, Isaac C. Ta
St. Mary's Journal on Legal Malpractice & Ethics
Under 28 U.S.C. § 1338, federal courts generally have original jurisdiction over cases arising under federal civil law. Specifically, under 28 U.S.C. § 1338(a), federal courts have jurisdiction over cases brought under federal patent laws. As with any legal proceeding, the potential for legal malpractice as it relates to patent issues (e.g., proper patent filing) is very real. However, unlike patent law proceedings, legal malpractice is governed by state law.' When the two causes of action are intertwined, federal and state courts are presented with the issue of which court possesses proper jurisdiction. Some argue federal courts can properly exercise …
Guilt By Association: How “Standby Co-Counsel” Exposes Attorneys To Malicious Prosecution Liability., Colleen V. Lisowski
Guilt By Association: How “Standby Co-Counsel” Exposes Attorneys To Malicious Prosecution Liability., Colleen V. Lisowski
St. Mary's Journal on Legal Malpractice & Ethics
Attorneys should not assume that lending their name to a case is a risk-free practice. The California appellate decision, Cole v. Patricia A. Meyer & Associates, answered the question of whether non-participating, standby co-counsel could be held liable for malicious prosecution by merely being listed as counsel of record. Cole established the clear message behind being aware of “co-counsel” risks. According to the court, co-counsel cannot escape liability if they failed to know enough about the case. By rejecting the “passive counsel” defense, Cole held that associated attorneys still have a duty to research the validity of a case even …
Regulating The Behavior Of Lawyers In Mass Individual Representations: A Call For Reform., Richard Zitrin
Regulating The Behavior Of Lawyers In Mass Individual Representations: A Call For Reform., Richard Zitrin
St. Mary's Journal on Legal Malpractice & Ethics
Cases in which lawyers represent large numbers of individual plaintiffs are increasingly common. While these cases have some of the indicia of class actions, they are not class actions, usually because there are no common damages, but rather individual representations on a mass scale. Current ethics rules do not provide adequate guidance for even the most ethical lawyers. The absence of sufficiently flexible, practical ethical rules has become an open invitation for less-ethical attorneys to abuse, often severely, the mass-representation problem. It is necessary to reform the current rules, but only with a solution that is both practical and attainable, …
Keep Your “Friends” Close And Your Enemies Closer: Walking The Ethical Tightrope In The Use Of Social Media., John G. Browning
Keep Your “Friends” Close And Your Enemies Closer: Walking The Ethical Tightrope In The Use Of Social Media., John G. Browning
St. Mary's Journal on Legal Malpractice & Ethics
This Article will examine the ethical issues posed by lawyers’ use of social media platforms in light of the ABA Ethics Commission 20/20 changes to the Model Rules of Professional Conduct. Social networking has had a transformative effect both on the way society shares information and on the legal profession. Much of the discussion to date focuses on the discovery and use of evidence from social media sites in criminal cases and civil litigation, but attention must also be directed to the ethical quandaries posed by the legal profession’s use of social media. This Article will consider issues such as …
Evidentiary Standards In The Legal Malpractice Trial-Within-A-Trial., F. Parks Brown
Evidentiary Standards In The Legal Malpractice Trial-Within-A-Trial., F. Parks Brown
St. Mary's Journal on Legal Malpractice & Ethics
Like malpractice actions in general, the standards of proof required for each element of a legal malpractice claim evolved as legal malpractice claims became increasingly common. State and federal courts consequently produced a diverse range of opinions as jurisdictions continually adjust to evolving standards. The courts often seek to balance these standards of proof against their own precedent and the need to serve their particular notions of equity and justice. Perhaps the most contentious of these evolving standards of proof is the current state of the causation element, which is a critical test that must be satisfied to prevail in …
How An Obscure Tennessee Opinion Uncovers The Veil Of Legal Malpractice Between Asset-Protection Trusts And The Uniform Trust Code., Charles Epps Ipock
How An Obscure Tennessee Opinion Uncovers The Veil Of Legal Malpractice Between Asset-Protection Trusts And The Uniform Trust Code., Charles Epps Ipock
St. Mary's Journal on Legal Malpractice & Ethics
In the year 2000, the Uniform Law Commissioners approved the Uniform Trust Code (UTC). This was the first effort to provide states with an all-inclusive model for codifying their trust laws. Since then, at least twenty-three states adopted some, or most of the UTC. But this enactment did not come without controversy. Most of the controversies stem from provisions regarding asset-protection trusts. The net result of asset-protection trusts within the UTC essentially disposes of discretionary trusts by requiring them to contain spendthrift language. The undesirable effect of these provisions is that without a spendthrift clause any creditor can attach a …
Social Networking And Judicial Ethics., Craig Estlinbaum
Social Networking And Judicial Ethics., Craig Estlinbaum
St. Mary's Journal on Legal Malpractice & Ethics
Social network sites (SNSs) such as Facebook, Linkedln, and Twitter have become an increasingly ever-present feature in American life since first appearing in the late 1990s. SNSs now impact virtually all parts of daily life, and the judiciary is not immune to this effect. Recent statistics show that approximately 40% of judges nationwide utilize SNSs for personal, professional, and electoral purposes. Social media, like any public communication form, presents special ethical challenges for judges. In recent years, judicial ethics committees in various states have weighed in on these questions and have not shown any clear consensus. However, it is generally …
Order In The Court!: Ethical Conduct In A Criminal Trial Under The Texas Disciplinary Rules., Edward L. Wilkinson
Order In The Court!: Ethical Conduct In A Criminal Trial Under The Texas Disciplinary Rules., Edward L. Wilkinson
St. Mary's Journal on Legal Malpractice & Ethics
In a criminal trial, the most common ethical duties implicated are the duty of candor to the tribunal, maintaining the impartiality and integrity of the tribunal, and the fairness of the proceeding as a whole. Under the Texas Disciplinary Rules of Professional Conduct, these duties are broken down in Rules 3.03, 3.04, 3.05, and 3.06. Attorneys are charged with the responsibility of fully understanding each of these duties in order to interact accordingly with the tribunal. This Article will examine, in detail, each of these rules individually. Additionally, the Article will analyze how each of the rules overlap and coincide …