Law Commons^™

"Breathing Space To Survive"--The Missing Component Of Model Rule 8.4(G), Margaret Tarkington

Hofstra Law Review

The article focuses on American Bar Association (ABA) adopted Model Rule of Professional Conduct 8.4(g), which confront the issues that harassment and discrimination. It mentions state bars are somehow oblivious to the serious problems of discrimination and harassment in nation, the growing national outcry against such, or the impediment that discrimination and harassment can be to the working of justice.

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

Hofstra Law Review

The article focuses on American Bar Association (ABA) adopted Model Rule of Professional Conduct 8.4(g), for incivility might be used as a disciplinary standard to restrict lawyers' constitutionally protected speech. It mentions rule targets unlawful behavior including racial discrimination and sexual harassment, as well as some bad conduct that may otherwise be lawful and that might be hard to reach under existing rules, but that plainly should be sanctioned.

Anti-Discrimination Ethics Rules And The Legal Profession, Micahel Ariens

Hofstra Law Review

The article focuses on goals of the rules of ethics applicable to lawyers from the American Bar Association's (ABA's) 1908 Canons of Professional Ethics, through its 1983 Model Rules of Professional Conduct. It mentions efforts are a response to the ABA's adoption in 2016 of Model Rule 8.4(g), an anti-discrimination (and anti-harassment) rule. It also mentions harassment or discrimination on the basis of race, sex, religion, and national origin.]

Pennsylvania Lawyers Behaving Badly: Is 8.4(G) A Solution?, Ellen Brotman, Amy Coco

Hofstra Law Review

The article focuses on American Bar Association (ABA) adopted Model Rule of Professional Conduct 8.4(g), broadening the definition of attorney misconduct. It mentions affirmative rules or comments to Rule 8.4(d)2 that already reflected these values, few states defined attorney misconduct to include discrimination and sexual harassment. It also mentions Greenberg v. Haggerty, a federal court declared that the rule violated the First Amendment.

See Something; Say Something: Model Rule 8.4(G) Is Not Ok, William Hodes

Hofstra Law Review

The article focuses on American Bar Association (ABA) adopted Model Rule of Professional Conduct 8.4(g), which confront the issues that harassment and discrimination. It mentions ABA House of Delegates placed—for the first time—a direct and enforceable prohibition against discrimination and harassment by lawyers into the black-letter text of the Model Rules. It also mentions anti-discrimination and anti-harassment principles from the comments to the directly enforceable black-letter text.

The Politics Of Bar Admission: Lessons From The Pandemic, Leslie C. Levin

Hofstra Law Review

The controversy over how and whether to administer the July 2020 bar examination during the COVID-19 pandemic upended the usual process of lawyer regulation. New actors—including bar applicants—very publicly challenged regulators’ decisions and questioned the safety and fairness of plans for the bar exam. Some advocated for emergency admission without the need to satisfy the bar examination requirement. Joined by law school deans and faculty, the advocacy occurred against the backdrop of the politicization of COVID-19, street protests over police misconduct and racial inequality, and long-standing skepticism about the value and fairness of the bar exam. Regulators throughout the United …

Lessons From The Present: Three Crises And Their Potential Impact On The Legal Profession, Raymond H. Brescia

Hofstra Law Review

The United States faces three simultaneous crises: a pandemic, a civil-rights reckoning, and a crisis of democracy. The first of these crises has sparked dramatic—though potentially temporary—changes to the practice of law: moving much legal work to remote settings almost overnight, after the profession had largely resisted making such accommodations for decades. The second has sparked an assessment of the extent to which the practice of law and the legal system are both riddled with racism and institutional bias. The third, the crisis of democracy, has lawyers at its center, filing frivolous claims and fomenting an armed insurrection with designs …

Judicial Disclosure And The Judicial Mystique, Michel Paradis

Hofstra Law Review

Judges in the American legal system are expected to be neutral. To this end, judges are required to recuse themselves whenever their impartiality might reasonably be questioned. Yet, this requirement is by and large designed to be self-policed. This self-policing structure is a deviation from the ordinary presumptions of adversarial litigation, not the least because it depends upon the presumption that judges are disinterested about whether they are improperly interested. To compensate for this, a robust body of common law has developed that requires judges to disclose facts about themselves that might affect their neutrality, even if they do not …

Symposium Introduction, Ellen Yaroshefsky

Hofstra Law Review

This symposium presents case studies of the often difficult ethical and tactical issues confronted by lawyers for social justice movements. These case studies were developed by the pairing of movement lawyers with legal ethicists and enriched by the discussions at the Movement Lawyering Ethics Roundtable. They seek to provide guidance to lawyers facing these recurrent issues. This issue also includes an essay entitled "Rebuilding the Ethical Compass of Law" and reading guides with selected bibliographies.

In Defense Of The Devil's Advocate, Lonnie T. Brown Jr.

Hofstra Law Review

Among 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 …

Monroe Freedman And The Morality Of Dishonesty: Multidimensional Legal Ethics As A Cold War Imperative, Norman I. Silber

Hofstra Law Review

This Article reaches into the personal history of Monroe Freedman, a pioneer in multi-dimensional legal ethics, to advance an explanation for his advocacy and his signal contributions to legal ethics - particularly his landmark article of 1966, Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, where he inquired into situations in which candor might not be either moral or professional. It argues that his outspoken defense of lying as sometimes necessary and even moral behavior in the adversary system should be understood as an outgrowth of his early religious perspective about the nature of moral obligations, as …

The Case For Proactive Management-Based Regulation To Improve Professional Self-Regulation For U.S. Lawyers, Ted Schneyer

Hofstra Law Review

The article discusses the American Bar Association's (ABA's) Standing Committee on Professional Discipline and its review of the ABA's Model Rules for Lawyer Disciplinary Enforcement, focusing on proactive management-based regulation as a means of improving professional self-regulation for U.S. lawyers as of 2013. Other topics include attorney misconduct claims by clients, law firm management, and the roles of solicitors in assessing a law firm's ethical infrastructure in New South Wales.

The Rise Of Institutional Law Practice, Thomas D. Morgan

Hofstra Law Review

For generations, the legal profession has assumed that only individual lawyers practice law. Ethical standards have been largely, if not exclusively, directed at individuals, and practice organizations have been regulated to prevent limiting individual lawyer professional judgment. The world in which lawyers now practice makes the individualized model obsolete. The complexity of modern law narrows the breadth of any individual lawyer's practice and makes law firms and other practice organizations inevitable. Firms, in turn, must maintain both ethical compliance and a high level of service quality that is inconsistent with lawyers behaving idiosyncratically. The article explores these developments and suggests …

Engaged Client-Centered Representation Of The Moral Foundations Of The Lawyer-Client Relationship, Katherine R. Kruse

Hofstra Law Review

The field of legal ethics, as we know it today, has grown out of thoughtful, systematic grounding of lawyers’ duties in a comprehensive understanding of lawyers’ roles and the situating of lawyers’ roles in underlying theories of law, morality and justice. Unfortunately, the field of theoretical legal ethics has mostly lost track of the thing at the heart of a lawyers’ role: the integrity of the lawyer-client relationship. The field of theoretical legal ethics has developed in ways that are deeply lawyer-centered rather than fundamentally client-centered. This paper, which was delivered at Hofstra Law School as the Lichtenstein Distinguished Professor …

Foreword: The Ethics Of Lawyers In Government, Roy Simon

Hofstra Law Review

This special symposium issue of the Law Review features six different articles on legal ethics, culled from three different sources—Hofstra Law School’s 2009 Legal Ethics Conference, the 2009-2010 Lichtenstein Lecture, and a fascinating essay by Professor Monroe Freedman, my treasured friend and colleague at Hofstra. In this

Foreword, I will say some words about each source.

Lawyering In The Supreme Court, Paul D. Clement

Hofstra Law Review

No abstract provided.

A Vision For Collaborative Practice: The Final Report Of The Hofstra Collaborative Law Conference, J. Herbie Difonzo

Hofstra Law Review

In November 2009, Hofstra University School of Law’s Center for Children, Families and the Law hosted a Conference on the Uniform Collaborative Law Act, in conjunction with the Uniform Law Commission, the Association of Family and Conciliation Courts, the International Academy of Collaborative Professionals ("IACP"), and the American Bar Association Section of Dispute Resolution. This event marked the first time a law school has sponsored a conference exclusively focusing on the innovative practice of collaborative law.

The goal of the Conference was to assess collaborative practice in light of the adoption of the Uniform Collaborative Law Act (“UCLA”). This Report …

Legal Ethics And Collaborative Practice Ethics, Robert F. Cochran Jr.

Hofstra Law Review

In Collaborative Practice (CP), the clients and their attorneys (and other professionals in the case, if there are any) contract to resolve the issues presented in a structured process without litigation. Lawyers who engage in CP are governed by the legal professional rules in their state. However, Collaborative Practice differs greatly from adversarial dispute resolution practice. It challenges practitioners in ways not necessarily addressed by the ethics of individual disciplines. Therefore, collaborative professionals have developed their own standards to provide guidance for their members. Cochran describes the legal and ethical context within which professionals engage in CP in the United …

Capital Guidelines And Ethical Duties: Mutually Reinforcing Responsibilities, Lawrence J. Fox

Hofstra Law Review

This article appears in the Hofstra Law Review symposium issue on the Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty cases.

It is counsel, and not any non-lawyer member of the multidisciplinary defense team which needs to be assembled to provide competent representation in a capital case, who bears ultimate responsibility for the team's performance and for decisions affecting the client and the case. This article describes the many respects in which counsel's specific obligations under both the ABA's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases reprinted in 31 Hofstra …

Lawyering At The Edge: Foreword, Roy D. Simon

Hofstra Law Review

Lawyering can be humdrum and routine, or it can be exciting and dangerous (or anywhere in between). Hofstra's sixth major conference on legal ethics' focused on the exciting and dangerous parts. The title of the conference was "Lawyering at the Edge: Unpopular Clients, Difficult Cases, Zealous Advocates." The extraordinary roster of nineteen speakers featured both practicing lawyers and outstanding scholars. The practicing lawyers described their own personal experiences lawyering at the edge, while the scholars examined the inspiring stories of lawyers who have exhibited remarkable courage.

Unethical Obedience By Subordinate Attorneys: Lessons From Social Psychology, Andrew M. Perlman

Hofstra Law Review

This Article explores the lessons that we can learn from social psychology regarding a lawyer's willingness to comply with authority figures, such as senior partners or deep-pocketed clients, when they make unlawful or unethical demands. The Article reviews some of the basic literature in social psychology regarding conformity and obedience, much of which emphasizes the importance of context as a primary factor in predicting people's behavior. The Article then contends that lawyers frequently find themselves in the kinds of contexts that produce high levels of conformity and obedience and low levels of resistance to illegal or unethical instructions. The result …

Fighting Fire With Fire: Private Attorneys Using The Same Investigative Techniques As Government Attorneys: The Ethical And Legal Considerations For Attorneys Conducting Investigations, Gerald B. Lefcourt

Hofstra Law Review

No abstract provided.

Competitor And Other "Finite-Pie" Conflicts, Charles W. Wolfram

Hofstra Law Review

No abstract provided.

The Lawyer's "Conscience" And The Limits Of Persuasion, Abbe Smith

Hofstra Law Review

No abstract provided.

The "Charles Stimson" Rule And Three Other Proposals To Protect Lawyers From Lawyers, Stephen Gillers

Hofstra Law Review

No abstract provided.

Military Lawyering At The Edge Of The Rule Of Law At Guantanamo: Should Lawyers Be Permitted To Violate The Law?, Ellen Yaroshefsky

Hofstra Law Review

Military lawyers at Guantanamo Bay are part of and witness to a legal system decried as the gulag of our times and criticized by courts, legislative bodies, and numerous human rights organizations as defying the concept of a fair system. These military lawyers have knowledge that their government has engaged in acts of torture and other violations of fundamental norms of domestic and international laws. This essay asks when, if ever, it is appropriate for a military lawyer to violate a regulation or law in order to uphold the government's obligations to observe fundamental norms of law.

The essay examines …

Power As A Factor In Lawyers' Ethical Deliberation, Susan D. Carle

Hofstra Law Review

A fundamental disagreement among legal ethics scholars concerns the difference between client-centered and justice-centered approaches to lawyers' ethical obligations. Advocates of client-centered approaches put lawyers' duty to the client first. Justice-centered theorists critique the elevation of the client's interests over other important concerns lawyers affect through the work they do on behalf of clients. Scholars who adopt justice-centered approaches argue that lawyers' ethical obligations should be analyzed with a paramount focus on achieving justice.

Legal ethicists often view these two approaches as inconsistent with each other, but I argue in this Article that they are not necessarily so. Building on …

Counseling Organizational Clients"Within The Bounds Of The Law", Roger C. Cramton

Hofstra Law Review

No abstract provided.

Creating Space For Lawyers To Be Ethical: Driving Towards An Ethic Of Transparency, Burnele V. Powell

Hofstra Law Review

No abstract provided.

Lawyers' Ethics In An Adversary System - Foreword: Like Gravity, Roy D. Simon

Hofstra Law Review

The adversary system, like gravity, affects us all. We cannot escape it. The adversary system, and the ethical standards of the lawyers who operate within the adversary system, therefore warrant continual study. ...

This issue collects nearly all of the papers delivered at the conference. Of equal interest, each paper is followed by a transcript of the fascinating exchanges that occurred between the speaker and members of the audience during a lengthy question and answer session after each speech.