Law Commons^™

How Not To Lie: A Don't-Do-It-Yourself Guide For Litigators, Leonard Niehoff

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Over the past few years, a number of high-profile attorneys have been sanctioned or suspended from the practice of law because they lied. The instance that probably received the greatest media attention came in June of 2021, when the Appellate Division of the Supreme Court of the State of New York ordered the immediate suspension of Rudy Giuliani’s license because he had made demonstrably false statements to the courts, lawmakers, and the public at large concerning the 2020 presidential election. In a 33- page opinion, the court considered the arguments Giuliani raised in his defense but concluded that his pants …

Professionalism In Tribal Jurisdictions, Matthew L.M. Fletcher

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American Indian law is an important area of law. There are 12 federally recognized Indian tribes in the state of Michigan.1 Indian tribes throughout the United States do business in Michigan. Indian tribal governments and corporations employ hundreds of thousands of non-Indians and received billions in federal pandemic relief. Indian gaming generated nearly $40 billion in revenues nationally last year. Still, many lawyers ignore the field or claim ignorance about the basic precepts of federal Indian law.

This article will canvass several themes of professionalism in tribal practice, drawing from this author’s tribal law experience over the last few decades. …

Comment: Without Effective Lawyers, Do More Determinate Legal Standards Really Matter?, Vivek S. Sankaran

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In Confronting Indeterminacy and Bias in Child Protection Law, Professor Josh Gupta-Kagan wisely proposes that the child protection system needs more precise legal standards, not just to limit unnecessary state intrusion in the lives of families, but to also define the scope of that intrusion if it must occur. But as I read his piece, a question repeatedly ran through my mind - will the changes he proposes have any impact if parents in the child protection system continue to have ineffective lawyers representing them?

Work Only We Can Do: Professional Responsibility In An Age Of Automation, Sherman J. Clark

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Automation can help us do our work as lawyers; but in the process, it should also force us to be more thoughtful about what our work really is or ought to be.' The challenge for the profession, as I see it, is not simply to survive the advent of new technology, nor even merely to make effective use of new tools. While addressing those immediate concerns, we should also welcome the concomitant opportunity to develop and refine our understanding of what it means to be a good and ethical lawyer. As technological developments free us from and prevent us from …

Addressing Cultural Bias In The Legal Profession, Debra Chopp

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Over the past two decades, there has been an outpouring of scholarship that explores the problem of implicit bias. Through this work, commentators have taken pains to define the phenomenon and to describe the ways in which it contributes to misunderstanding, discrimination, inequality, and more. This article addresses the role of implicit cultural bias in the delivery of legal services. Lawyers routinely represent clients with backgrounds and experiences that are vastly different from their own, and the fact of these differences can impede understanding, communication, and, ultimately, effective representation. While other professions, such as medicine and social work, have adopted …

Assignments With Intrinsic Lessons On Professionalism (Or, Teaching Students To Act Like Adults Without Sounding Like A Parent), Beth H. Wilensky

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There is little question that law schools ought to teach their students professionalism – indeed, they are required to do so to maintain accreditation. And there is little question that the required legal writing and research course is one of the places it ought to be taught. But teaching students to adopt the norms of professional behavior — both in law school and after graduation — is a challenge to law faculties, and particularly to the experiential learning faculty who frequently are on the front lines of teaching professionalism. While there are many ways to teach students what professional and …

Culture As A Structural Problem In Indigent Defense, Eve Brensike Primus

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In Part I, I will describe the ways in which today's right-to-counsel challenges are similar to and different from those that faced the writers of the 1961 symposium. I will also explain in more detail why the structural conditions of criminal defense work to create (and, to some extent, always have created) a cultural problem in indigent defense delivery systems across the country. In Part II, I will discuss why I believe that we are, once again, facing a moment for potential reform, albeit reform that is different in scope and kind from that which was possible in the 1960s. …

Ethics For Media Lawyers: The Lessons Of Ferguson, Leonard M. Niehoff

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Ferguson, Missouri, has a population of roughly 21,000 people. Thirty cities in Missouri have larger populations. The Edward Jones Dome, where the St. Louis Rams play football, seats three times as many people. Most of us had never heard of Ferguson prior to August 9, 2014, when a police oficer named Darren Wilson shot and killed an unarmed black teenager named Michael Brown. But, to paraphrase the grim observation of Ambrose Bierce, war is how Americans learn geography. So, as violence and vandalism erupted on its streets, the nation turned its attention toward Ferguson and labored to understand the place, …

Soft-Core Perjury, Leonard M. Niehoff

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Despite its greater pervasiveness, however, soft-core perjury has generated considerably less discussion and debate than hard-core perjury has. There are reasons for this, but they are not good ones. Indeed, we might summarize the matter this way: Lawyers tend to dismiss the soft-core perjury problem because they do not see it as a problem. They do not see it as an ethical problem, and they do not see it as a practical problem. They are wrong on both counts.

The idea that soft-core perjury poses no ethical problem comes from the view that the lawyer's dilemma-or trilemma, if you will-arises …

Sentence Reduction As A Remedy For Prosecutorial Misconduct, Sonja B. Starr

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Current remedies for prosecutorial misconduct, such as reversal of conviction or dismissal of charges, are rarely granted by courts and thus do not deter prosecutors effectively. Further, such all-or-nothing remedial schemes are often problematic from corrective and expressive perspectives, especially when misconduct has not affected the trial verdict. When granted, these remedies produce windfalls to guilty defendants and provoke public resentment, undermining their expressive value in condemning misconduct. To avoid these windfalls, courts refuse to grant any remedy at all, either refusing to recognize violations or deeming them harmless. This often leaves significant non-conviction-related harms unremedied and egregious prosecutorial misconduct …

Sentencing: Where Case Theory And The Client Meet, Kimberly A. Thomas

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Criminal sentencing hearings provide unique opportunities for teaching and learning case theory. These hearings allow attorneys to develop a case theory in a context that both permits understanding of the concept and, at the same time, provides a window into the difficulties case theory can pose. Some features of sentencing hearings, such as relaxed rules of evidence and stock sentencing stories, provide a manageable application of case theory practice. Other features of sentencing hearings, such as the defendant's allocution, require an attorney to contend with competing "case theories," and as a result, to face the ethical and counseling challenge of …

Interdisciplinary Clinical Teaching Of Child Welfare Practice To Law And Social Work Students When World Views Collide, Kathleen Coulborn Faller, Frank E. Vandervort

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Because child welfare cases in the world of professional practice require interdisciplinary collaboration, it would seem to follow that graduate students, who will become child welfare professionals, should be trained together, both in the classroom and in clinical settings. However, the implementation of interdisciplinary training is far from straightforward. In this Article, we focus on law and social work students. First, we describe the roles of lawyers and social worker in child welfare work. Next we argue that interdisciplinary classroom teaching is easier than clinical teaching, proposing a series of topics to be covered in an interdisciplinary course. Finally, we …

Why Hard Cases Make Good (Clinical) Law, Paul D. Reingold

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In 1992, when the University of California's Hastings College of Law decided to offer a live-client clinic for the first time, its newly hired director had to make several decisions about what form the program should take.1 The first question for the director was whether the clinic should be a single-issue specialty clinic or a general clinic that would represent clients across several areas of the law. The second question, and the one that will be the focus of this essay, was whether the program should restrict its caseload to "easy" routine cases or also accept non-routine, less controllable litigation. …

The Scholar As Advocate, Rebecca S. Eisenberg

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Academic freedom in this country has been so closely identified with faculty autonomy that the two terms are often used interchangeably, especially by faculty members who are resisting restraints on their freedom to do as they please. While there may be some dispute as to whether or how far academic freedom protects the autonomy of universities or of students, the autonomy of faculty members seems to lie close to the core of the traditional American conception of academic freedom. As elaborated by the American Association of University Professors, this conception of academic freedom calls for protecting individual faculty members from …

Gender And Race Bias Against Lawyers: A Classroom Response, Suellyn Scarnecchia

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In reviewing other clinicians' approaches to teaching about bias, I identified problems that eventually led me to design a two-hour class session on bias against lawyers. The following is a review of a few other teaching methods and a description of my own approach, detailing its own strengths and weaknesses. This is not an exhaustive review of all possible approaches to bias. It is offered to promote classroom discussion of bias against lawyers and to invite the development of innovative alternatives to my approach.

Machiavelli And The Bar: Ethical Limitations On Lying In Negotiation, James J. White

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Upon the enactment of the Model Rules of Professional Conduct, published ethical norms will for the first time give explicit consideration to the lawyer's behavior in the process of negotiation. Rules 4.1, 4.2, and 4.3 deal with negotiation. Although the Canons, the interpretations of the Canons, and the Disciplinary Rules and Ethical Considerations gave tangential consideration to negotiating, 1 none of the Disciplinary Rules or Ethical Considerations explicitly considered negotiation apart from the process of litigation or counseling. The mere recognition of negotiation as a separate process worthy of unique rules is a large step. The purpose of this paper …

An Inquiry Concerning The Functions Of Procedure In Legal Education, Edson R. Sunderland

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Procedure has always been the bete noire of the law school teacher. No other subject has developed such divergent opinions or such endless debates. None recurs with such periodic frequency and in no field of legal pedagogy has discussion seemed so barren of results. Three different general sessions of the Association of American Law Schools during the last ten years have been devoted largely or wholly to the subject of teaching procedure, and yet no substantial progress seems to have been made toward a standardized scheme of treatment. Individual teachers and schools have their individual views and policies, and they …

Reinstatement Of Disbarred Attorney, Edson R. Sunderland

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The petitioner asked to be reinstated. The court, excepting Justice Fellows, who concurred in the result but expressed no opinion, said they would be glad to reinstate him but for the fact that he was a non-resident, which in their opinion made him ineligible, but they gave their endorsement of his good character by vacating the order of disbarment. The questions which occur are these: 1. Did the court have the power to vacate its order of disbarment after the time for opening, amending or vacating judgments had passed? 2. Did the vacation of the order of disbarment operate ipso …

Disqualification Of Judges By Prejudice, Edson R. Sunderland

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Under the provisions of Section 21 of the Federal Judicial Code, Victor Berger and others, who had been indicted under the Espionage Act in the Northern District of Illinois, filed an affidavit charging Judge Landis with personal bias and prejudice against them as German-Americans, and moved for the assignment of another judge to preside at their trial. The motion was overruled by Judge Landis, and he himself presided at the trial, and the defendants were convicted and sentenced. The Supreme Court of the United States, to which the matter came on certificate, held, three justices dissenting, that Judge Landis could …

The Proposed Code Of Legal Ethics For The American Bar Association, Henry M. Bates

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The effort of the American Bar Association to frame and adopt a code of legal ethics is deserving of more attention from American lawyers than it is receiving. The adoption of such a code has been under consideration for several years. In 1905 the Association at its annual meeting instructed its committee to report at the meeting to be held in the next year upon "the advisability and practicability" of the adoption of such a code. In pursuance of these instructions the committee reported that in its judgment the adoption of such a code was not only advisable, but highly …

Disbarment Or Suspension Of Attorney, Harry B. Hutchins

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The decision of the Supreme Court of Oregon in the case of State ex rel Grievance Committee of State Bar Association v. Tanner, rendered Jan. 12, 19O7, 88 Pac. Rep. 301, is of sufficient importance to merit brief notice. The proceeding was instituted by the grievance committee of the State Bar Association for the removal from practice of the defendant, an attorney at law, under a statute of the State that provides for the removal or suspension of an attorney from practice by the Supreme Court "upon his being convicted of a felony or of a misdemeanor involving moral turpitude."