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Articles 1 - 30 of 50
Full-Text Articles in Law
Model Rule 8.4(G) And The Profession's Core Values Problem, Michael Ariens
Model Rule 8.4(G) And The Profession's Core Values Problem, Michael Ariens
Faculty Articles
Model Rule 8.4(g) declares it misconduct for a lawyer to "engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law." The American Bar Association (ABA) adopted the rule in 2016, in large part to effectuate the third of its four mission goals: Eliminate Bias and Enhance Diversity. The ABA adopted these goals in 2008, and they continue to serve as ABA's statement of its mission.
A …
Philosophical Legal Ethics: An Affectionate History, David Luban, W. Bradley Wendel
Philosophical Legal Ethics: An Affectionate History, David Luban, W. Bradley Wendel
Cornell Law Faculty Publications
The modern subject of theoretical legal ethics began in the 1970s. This brief history distinguishes two waves of theoretical writing on legal ethics. The "First Wave" connects the subject to moral philosophy and focuses on conflicts between ordinary morality and lawyers' role morality, while the "Second Wave" focuses instead on the role legal representation plays in maintaining and fostering a pluralist democracy. We trace the emergence of the First Wave to the larger social movements of the 1960s and 1970s; in the Conclusion, we speculate about possible directions for a Third Wave of theoretical legal ethics, based in behavioral ethics, …
Philosophical Legal Ethics: An Affectionate History, David Luban, W. Bradley Wendel
Philosophical Legal Ethics: An Affectionate History, David Luban, W. Bradley Wendel
Georgetown Law Faculty Publications and Other Works
The modern subject of theoretical legal ethics began in the 1970s. This brief history distinguishes two waves of theoretical writing on legal ethics. The “First Wave” connects the subject to moral philosophy and focuses on conflicts between ordinary morality and lawyers’ role morality, while the “Second Wave” focuses instead on the role legal representation plays in maintaining and fostering a pluralist democracy. We trace the emergence of the First Wave to the larger social movements of the 1960s and 1970s; in the conclusion, we speculate about possible directions for a Third Wave of theoretical legal ethics, based in behavioral ethics, …
Solving Ethical Puzzles To Unlock University Technology Transfer Client Work For An Intellectual Property Legal Clinic, Cynthia L. Dahl
Solving Ethical Puzzles To Unlock University Technology Transfer Client Work For An Intellectual Property Legal Clinic, Cynthia L. Dahl
All Faculty Scholarship
Intellectual property (IP) and technology legal clinics are experiencing an unprecedented surge in popularity. Before 2000 there were only five such clinics, but by 2016 there were seventy-four, with fifty added since 2010 alone. As law schools are approving new IP clinics and as practitioners are developing syllabi, there is an increasing need to share knowledge about models that work and how to avoid pitfalls.
One potentially fertile – but traditionally underutilized -- source of client work for an IP and technology clinic is the university technology transfer office (“TTO”), the department that protects, markets, and licenses all university intellectual …
Ethics Issues In Representing Intergovernmental Entities, Hugh D. Spitzer
Ethics Issues In Representing Intergovernmental Entities, Hugh D. Spitzer
Articles
The creation and operation of intergovernmental entities raise special professional responsibility issues for the lawyers involved in the formation and the long-term activities of multi-governmental bodies. It is particularly important for attorneys to pay attention to conflicts of interest that arise from giving simultaneous assistance to several governments, or from representing one entity in negotiations with other governments the attorney or firm represents. This paper briefly reviews various categories of interlocal entities in Washington State, as an example. It points out the distinctly different dynamics during the formation period and the operations period of an intergovernmental body. It then analyzes …
Fidelity Diluted: Client Confidentiality Gives Way To The First Amendment & Social Media In Virginia State Bar, Ex Rel. Third District Committee V. Horace Frazier Hunter, Jan L. Jacobowitz, Kelly Rains Jesson
Fidelity Diluted: Client Confidentiality Gives Way To The First Amendment & Social Media In Virginia State Bar, Ex Rel. Third District Committee V. Horace Frazier Hunter, Jan L. Jacobowitz, Kelly Rains Jesson
Articles
No abstract provided.
Modeling The American Lawyer Ethics System, James E. Moliterno
Modeling The American Lawyer Ethics System, James E. Moliterno
Scholarly Articles
None available.
Crisis In The Legal Profession: Don’T Mourn, Organize!, Michael E. Tigar
Crisis In The Legal Profession: Don’T Mourn, Organize!, Michael E. Tigar
Faculty Scholarship
No abstract provided.
Making Stuff Up, Richard H. Underwood
Making Stuff Up, Richard H. Underwood
Law Faculty Scholarly Articles
Beginning with an article in this Journal almost thirty years ago, Professor Underwood continues to research and write about legal ethics and litigation. In this Commentary, he offers a witty look at several cases where, in his opinion, the judge allowed improper arguments to the jury.
It's Not Funny: Creating A Professional Culture Of Pro Bono Commitment, Douglas L. Colbert
It's Not Funny: Creating A Professional Culture Of Pro Bono Commitment, Douglas L. Colbert
Faculty Scholarship
Professor Colbert challenges the popular view that regards lawyers as selfish, greedy and uncaring to the legal needs of the outside community. In his article, he recognizes that the lawyers with whom he is familiar are fulfilling the lawyer’s ethical obligation of engaging in pro bono service and “provid[ing] legal services to those unable to pay,” while also embracing the language in the Preamble to the Model Rules of Professional Conduct that refers to the attorney “as a public citizen who has a special responsibility to the quality of justice.” Professor Colbert asks colleagues in the legal academy whether they …
Three Models Of Legal Ethics, Anthony D'Amato, Edward J. Eberle
Three Models Of Legal Ethics, Anthony D'Amato, Edward J. Eberle
Faculty Working Papers
This article presents a picture of each of the three theoretical models—autonomy, socialist, and deontological—and indicates how they differ from one another in their application to some aspects of attorney-client confidentiality, one of the most hotly debated topics of professional ethics.
Relationships, The Rules Of Professional Conduct And Land Use: Ethical Quagmires For Land Use Attorneys, Patricia E. Salkin
Relationships, The Rules Of Professional Conduct And Land Use: Ethical Quagmires For Land Use Attorneys, Patricia E. Salkin
Scholarly Works
This article begins to fill the void by introducing the application of the various Rules of Professional Conduct, as adopted by the specific opining jurisdiction, through a review of the relevant reported opinions of the various committees and sometimes courts, in the land use context. Part I discusses the challenges that arise for lawyers vis-à-vis their clients in the land use context. This is followed by a discussion in Part II of the ethics and professionalism issues that confront lawyers who serve on local boards.
The Sacrificial Yoo: Accounting For Torture In The Opr Report, David Cole
The Sacrificial Yoo: Accounting For Torture In The Opr Report, David Cole
Georgetown Law Faculty Publications and Other Works
When the Justice Department finally released the report of its Office of Professional Responsibility on the “torture memos,” recommending that the initial torture memo’s authors, John Yoo and Jay Bybee, be referred for bar discipline, John Yoo declared victory in op-eds in the Wall Street Journal and Philadelphia Inquirer. The report itself concluded that Yoo and Bybee had acted unethically, and quoted many of Yoo’s successors in office as condemning the memos as, among other things “slovenly,” “riddled with error,” and “insane.” But Yoo claimed victory because Associate Deputy Attorney General David Margolis vetoed its recommendation that he be referred …
Betraying Truth: Ethics Abuse In Middle East Reporting, Kenneth Lasson
Betraying Truth: Ethics Abuse In Middle East Reporting, Kenneth Lasson
All Faculty Scholarship
This article presents a brief overview of press freedom under the First Amendment, attempts to create a working definition of media “objectivity,” examines various codes of professional ethics for journalists, and analyzes specific cases in which such standards have allegedly been abused or abandoned in Middle East reporting.
The Two Faces Of Lawyers: Professional Ethics And Business Compliance With Regulation, Christine E. Parker, Robert E. Rosen, Vibeke Lehmann Nielsen
The Two Faces Of Lawyers: Professional Ethics And Business Compliance With Regulation, Christine E. Parker, Robert E. Rosen, Vibeke Lehmann Nielsen
Articles
No abstract provided.
Torture And The Professions, David Luban
Torture And The Professions, David Luban
Georgetown Law Faculty Publications and Other Works
This paper examines the roles played by the learned professions in torture and cruel, inhuman, or degrading treatment carried out by the United States in the war on terrorism. It takes lawyers, physicians, psychologists, and anthropologists as its case studies. It originated as the keynote speech at the Association of Practical and Professional Ethics annual meeting in 2007.
(Not) Advising Corporate Officers About Fiduciary Duties, Lyman P.Q. Johnson, Robert V. Ricca
(Not) Advising Corporate Officers About Fiduciary Duties, Lyman P.Q. Johnson, Robert V. Ricca
Scholarly Articles
This Article explores the intersection of an important, unresolved corporate law issue and an overlooked professional responsibility issue persistently arising in the corporate milieu. The corporate law question currently unaddressed in Delaware law is whether the fiduciary duties of corporate officers, as agents, are the same as, or different from, the fiduciary duties of corporate directors. A related question is whether, in reviewing officer conduct, courts will apply the business judgment rule in the same broad (and protective) manner in which it is applied to assessing director behavior.
The professional responsibility issue concerns whether, and how well, lawyers are advising …
Expecting Too Much And Too Little Of Lawyers, Eugene R. Gaetke
Expecting Too Much And Too Little Of Lawyers, Eugene R. Gaetke
Law Faculty Scholarly Articles
The regulation of lawyers' behavior remains a controversial topic. Over the past hundred years, the organized bar has engaged in a number of efforts to generate rules governing lawyers' conduct. Still, prominent lawyers and jurists, the public media, and legal scholars perceive an ongoing decline in the profession's ethics.
Bar leaders tend to respond to the problem by calling for greater "professionalism" among practicing lawyers. Drawing on professional images from earlier times, they urge lawyers to look beyond the rules and to be more virtuous, selfless, independent of clients, and dedicated to justice.
A number of commentators go further. These …
Exceptions, Lawrence Raful
The Ethical Obligation Of Transactional Lawyer To Act As Gatekeepers, Rutheford B. Campbell Jr., Eugene R. Gaetke
The Ethical Obligation Of Transactional Lawyer To Act As Gatekeepers, Rutheford B. Campbell Jr., Eugene R. Gaetke
Law Faculty Scholarly Articles
Recent examples of managerial misconduct at major corporations have called into question the adequacy of the gatekeeper role provided by transactional lawyers representing corporations. That role is governed by Model Rule 1.13(b), which obligates the lawyer for a corporation to take remedial action if the lawyer knows that corporate managers are engaged in actions that amount to a "violation of a legal obligation" to the corporation or that are unlawful and likely to result in substantial injury to the corporation. In addition, Model Rule 1.2(d) forbids a lawyer from lending assistance to any action by corporate managers "that the lawyer …
Ethics, Law Firms, And Legal Education, Milton C. Regan
Ethics, Law Firms, And Legal Education, Milton C. Regan
Georgetown Law Faculty Publications and Other Works
A rash of recent corporate scandals has once again put professional ethics in the spotlight. It's hard to pick up the Wall Street Journal each day and not read that authorities have launched a new investigation or that additional indictments are imminent. Stories of financial fraud and outright looting have galvanized the public and shaken the economy. What ethical lessons can we draw from these events? Two explanations seem especially prominent. The first is a story of individuals without an adequate moral compass. Some people's greed and ambition were unchecked by any internal ethical constraints. For such deviants, no amount …
Administrative Adjudication In Kentucky: Ethics And Unauthorized Practice Considerations, Richard H. Underwood
Administrative Adjudication In Kentucky: Ethics And Unauthorized Practice Considerations, Richard H. Underwood
Law Faculty Scholarly Articles
This article is an extended version of a presentation I made at a training course for hearing officers sponsored by the Office of the Attorney General, Division of Administrative Hearings. In my original presentation, I was asked to focus on the ethics of the administrative adjudicator. I was asked to answer some specific questions, which I will include here for the reader's benefit. In this more complete treatment, I would also like to discuss the ethics of lawyers and other representatives appearing before administrative agencies.
The Kentucky Courts had begun to "judicialize" the administrative hearing process in the early 1970's, …
Reflections On The Ethics Of Legal Academics: Law Schools As Mdps; Or, Should Law Professors Practice What They Teach Symposium: Ethics Of Law Professors, Bruce A. Green
Faculty Scholarship
[A member of the House of Commons said in Samuel Johnson's presence] that he paid no regard to the arguments of counsel at the bar of the House of Commons, because they were paid for speaking. JOHNSON. 'Nay, Sir, argument is argument. You cannot help paying regard to their arguments, if they are good, If it were testimony, you might disregard it, if you knew that it were purchased. There is a beautiful image in Bacon upon this subject: testimony is like an arrow shot from a long bow; the force of it depends on the hand that draws it. …
Litigators’ Ethics, Michael E. Tigar
The Professional And The Liar, Richard H. Underwood
The Professional And The Liar, Richard H. Underwood
Law Faculty Scholarly Articles
Many individuals in society think that all lawyers are liars. Some think lawyers are allowed to lie. Regrettably, some American lawyers apparently think so too. In the United States there has been, and continues to be, a troubling lack of professional consensus when it comes to litigating a case. Indeed, lawyers who are neither corrupt nor insensitive have been accused of arguing that the elicitation of false testimony, and the use of it, is a professional responsibility. Fairness also calls for some acknowledgment that even the most cunning, zealous, and successful of trial lawyers have agonized over such moral choices. …
Renewed Introspection And The Legal Profession, Eugene R. Gaetke
Renewed Introspection And The Legal Profession, Eugene R. Gaetke
Law Faculty Scholarly Articles
As the twentieth century draws to a close, the legal profession again immersed in a process of self-assessment, reflection, and reform. Operating on several fronts, various constituent elements of the bar have recently completed or have underway significant projects relating to the law of lawyering.
Two efforts stand out in particular. For more than a decade, the American Law Institute has labored in the production of a new Restatement of the Law Governing Lawyers, and the organization stands now on the brink of that monumental work's publication. Equally significant, the American Bar Association has again undertaken a comprehensive review of …
A Proposal To Require Lawyers To Disclose Information About Procedural Matters, William H. Fortune
A Proposal To Require Lawyers To Disclose Information About Procedural Matters, William H. Fortune
Law Faculty Scholarly Articles
In the absence of a rule clearly requiring disclosure, a lawyer is obligated not to disclose information which is adverse to the interests of a client. However, judges should be able to expect lawyers to disclose information about procedural matters. This Article argues that Model Rule of Professional Conduct 3.3 should be amended to require disclosure of information about procedural matters. Part I describes the events in Potter v. Eli Lilly & Co., a case involving a secret settlement related to Prozac. Part II makes the argument for a rule requiring disclosure of procedural information. Part III describes how …
Kentucky Law Survey: Professional Responsibility, William H. Fortune
Kentucky Law Survey: Professional Responsibility, William H. Fortune
Law Faculty Scholarly Articles
This article is a survey of recent Kentucky ethics cases and Kentucky Bar Association ethics opinions. The cases and opinions selected are those of general application but special interest.
"Thinking Like A Lawyer" About Ethical Questions, William H. Simon
"Thinking Like A Lawyer" About Ethical Questions, William H. Simon
Faculty Scholarship
Suppose you had to pick the two most influential events in the recent emergence of ethics as a subject of serious reflection by the bar. Most likely, you would name the Watergate affair of 1974 and the appearance a few years earlier of an article by Monroe Freedman. The article was a discussion of what Freedman called the "Three Hardest Questions" surrounding the responsibilities of criminal defense lawyers.
Of the two events, Watergate is the most famous but, for our purposes, the least important. It raised no challenging issues of professional responsibility. The lawyer conduct in Watergate that shocked …
The Role Of Ethics And Unauthorized Practice Opinions In Regulating The Practice Of Law In Kentucky, William H. Fortune
The Role Of Ethics And Unauthorized Practice Opinions In Regulating The Practice Of Law In Kentucky, William H. Fortune
Law Faculty Scholarly Articles
The purpose of this article is to discuss the role of ethics and unauthorized practice opinions in regulating the practice of law, with suggestions for clarification and improvement.
The Kentucky Bench and Bar, the quarterly journal of the Kentucky Bar Association ("KBA"), prints "Advisory Ethics Opinions" and "Unauthorized Practice Opinions" over the signatures of the respective chairs of the Ethics and Unauthorized Practice of Law ("UPL") Committees. This article describes: 1) how ethics and unauthorized practice opinions are generated; 2) the legal effect of the opinions; 3) the relationship of ethics opinions to attorney discipline; 4) the Board of Bar …