Legal Ethics and Professional Responsibility Commons^™

Breaking The Silence: Holding Texas Lawyers Accountable For Sexual Harassment, Savannah Files

St. Mary's Journal on Legal Malpractice & Ethics

Following the 2017 exposure of Harvey Weinstein, the #MeToo movement spread rapidly across social media platforms calling for increased awareness of the prevalence of sexual harassment and assault and demanding change. The widespread use of the hashtag brought attention to the issue and successfully facilitated a much-needed discussion in today’s society. However, this is not the first incident prompting a demand for change.

Efforts to bring awareness and exact change in regards to sexual harassment in the legal profession date back to the 1990s. This demonstrates that the legal profession is not immune from these issues. In fact, at least …

Ethical Cannabis Lawyering In California, Francis J. Mootz Iii

St. Mary's Journal on Legal Malpractice & Ethics

Cannabis has a long history in the United States. Originally, doctors and pharmacists used cannabis for a variety of purposes. After the Mexican Revolution led to widespread migration from Mexico to the United States, many Americans responded by associating this influx of foreigners with the use of cannabis, and thereby racializing and stigmatizing the drug. After the collapse of prohibition, the federal government repurposed its enormous enforcement bureaucracy to address the perceived problem of cannabis, despite the opposition of the American Medical Association to this new prohibition. Ultimately, both the states and the federal government classified cannabis as a dangerous …

Autonomy Isn't Everything: Some Cautionary Notes On Mccoy V. Louisiana, W. Bradley Wendel

St. Mary's Journal on Legal Malpractice & Ethics

The Supreme Court’s May 2018 decision in McCoy v. Louisiana has been hailed as a decisive statement of the priority of the value of a criminal defendant’s autonomy over the fairness and reliability interests that also inform both the Sixth Amendment and the ethical obligations of defense counsel. It also appears to be a victory for the vision of client-centered representation and the humanistic value of the inherent dignity of the accused. However, the decision is susceptible to being read too broadly in ways that harm certain categories of defendants. This paper offers a couple of cautionary notes, in response …

Special Problems For Prosecutors In Public Corruption Prosecutions, Mimi Rocah, Carrie Cohen, Steve Cohen, Daniel Cort, Bennett L. Gershman

Pace Law Review

The focus of this panel is not so much on the academic part of McDonnell, the case law. Of course, you’ll hear the name McDonnell and we’ll talk about that.

But we’re trying to talk a little more broadly about public corruption prosecutions in general. Some of these are unique issues. You heard a little bit about them from the former people who have done them, what special unique problems are involved in them and challenges the prosecutors face and what effect, if any.

How Should Congress Respond To Mcdonnell?, David Yassky, Kathleen Clark, Allen Dickerson, Jennifer Rodgers

Pace Law Review

Discussion of question of whether McDonnell was essentially right or wrong. Should Congress act to change the McDonnell rule? Should the Supreme Court reconsider it? What would be an alternative or a better way, if there is one, to approach the question of public corruption prosecution?

How Has Mcdonnell Affected Prosecutors’ Ability To Police Public Corruption? What Are Politicians And Lobbyists Allowed To Do, And What Are Prosecutors Able To Prosecute?, Vincent L. Briccetti, Amie Ely, Alexandra Shapiro, Dan Stein

Pace Law Review

The question posed to the panelists on the first panel is: How has McDonnell affected prosecutors’ ability to police public corruption? What can politicians and lobbyists do and what can prosecutors prosecute?

Primer, Samantha Conway, David Diab, Amanda Fiorilla, Eric Grossfeld

Pace Law Review

Discussion and history of public corruption statutes and the prosecution of public officials through McDonnell v. United States, 136 S. Ct. 2355 (2016).

Introduction, Mimi Rocah

Pace Law Review

On March 9, 2018, the Elisabeth Haub School of Law at Pace University hosted Public Corruption Prosecution After McDonnell, a symposium that brought together law enforcement, practitioners, academics and media that covers these cases to gain insight and input from these disparate groups. The Symposium convened three panels to discuss how McDonnell has affected prosecutors’ ability to police public corruption; to offer legislative responses to McDonnell; and to examine the inherently unique nature of public corruption prosecutions. A central aim of the day-long event was to simultaneously tackle these challenging issues while distilling complex legal analysis in a manner suitable …

Law By Non-Lawyers: The Limit To Limited License Legal Technicians Increasing Access To Justice, Rebecca M. Donaldson

Seattle University Law Review

For the first time in the American legal profession, non-lawyers can openly, independently, ethically, and legally engage in activities recognized by bar associations as the practice of law. In 2012, the Washington Supreme Court passed Admission and Practice Rule 28 (APR 28), establishing the profession’s first paraprofessional licensing scheme that allows non-lawyers to give legal advice. The process authorizes qualified non-lawyers to provide legal advice without the supervision of a lawyer. Washington’s Supreme Court intends for Limited License Legal Technicians, or “LLLTs” as they are known, to increase access to justice by responding to the unmet civil legal needs of …

Georgia State Law Review Symposium Keynote Address: Uncovering Forensic Flaws - An Outside Perspective, Spencer S. Hsu

Georgia State University Law Review

This transcript is a reproduction of the Keynote Address by Spencer Hsu at the 2017–2018 Georgia State University Law Review Symposium — From the Crime Scene to the Court room: The Future of Forensic Science Reform — on April 6, 2018.

Spencer Hsu is an investigative reporter at the Washington Post, a two-time Pulitzer Prize finalist, and a national Emmy Award nominee.

Three Transformative Ideals To Build A Better Crime Lab, Nicole B. Cásarez, Sandra G. Thompson

Georgia State University Law Review

This Article proposes that policy makers should consider establishing their jurisdiction’s crime laboratories as government corporations independent of law enforcement as a means of improving their quality and efficiency. Simply building new buildings or seeking accreditation will not solve the endemic problems that crime laboratories have faced. Rather, we propose that crime laboratories be restructured with a new organizational framework comparable to the Houston Forensic Science Center's (HFSC) status as a local government corporation (LGC), which has proven to be conducive to creating a new institutional culture.

From our experience with the HFSC, we also believe that crime laboratories are …

Safety From Flawed Forensic Sciences Evidence, Boaz Sangero

Georgia State University Law Review

This article addresses the way to safety in the context of forensic sciences evidence. After presenting the current lack of safety, which I term “unsafety,” I raise some possible safety measures to contend with this. My suggestions are grounded on two bases: first, the specific analysis of each type of evidence in line with the most recent research on the subject; and second, modern safety theory and its application to the criminal justice system. It is important to stress that my proposals represent only some of the conceivable safety measures. Developing a comprehensive safety theory for the criminal justice system …

The First Amendment Case For Public Access To Secret Algorithms Used In Criminal Trials, Vera Eidelman

Georgia State University Law Review

As this Article sets forth, once a computerized algorithm is used by the government, constitutional rights may attach. And, at the very least, those rights require that algorithms used by the government as evidence in criminal trials be made available—both to litigants and the public. Scholars have discussed how the government’s refusal to disclose such algorithms runs afoul of defendants’ constitutional rights, but few have considered the public’s interest in these algorithms—or the widespread impact that public disclosure and auditing could have on ensuring their quality.

This Article aims to add to that discussion by setting forth a theory of …

Deploying The Secret Police: The Use Of Algorithms In The Criminal Justice System, Jessica Gabel Cino

Georgia State University Law Review

Algorithms saturate our lives today; from curated song lists to recommending “friends” and news feeds, they factor into some of the most human aspects of decision-making, tapping into preferences based on an ever-growing amount of data. Regardless of whether the algorithm pertains to routing you around traffic jams or finding your next dinner, there is little regulation and even less transparency regarding just how these algorithms work. Paralleling this societal adoption, the criminal justice system now employs algorithms in some of the most important aspects of investigation and decision-making.

The lack of oversight is abundantly apparent in the criminal justice …

A Discouraging Omen: A Critical Evaluation Of The Approved Uniform Language For Testimony And Reports For The Forensic Latent Print Discipline, Simon A. Cole

Georgia State University Law Review

The theme of the 2018 Georgia State University Law Review symposium is the Future of Forensic Science Reform. In this Article, I will assess the prospects for reform through a critical evaluation of a document published in February 2018 by the United States Department of Justice (DOJ), the Approved Uniform Language for Testimony and Reports for the Forensic Latent Print Discipline (ULTR).

I argue that this document provides reason to be concerned about the prospects of forensic science reform. In Part I, I discuss the background of the ULTR. In Part II, I undertake a critical evaluation of the ULTR. …

Volume 1, Issue 2 (2017) Inaugural Issue

International Journal on Responsibility

Contents:

Introduction: Terry Beitzel, Types of Responsibility: Challenges and Opportunities

3 – 5 Howard Zehr, Restorative Justice and the Gandhian Tradition.

6 – 26 Richard E. Rubenstein, Responsibility for Peacemaking in the Context of Structural Violence.

27 – 64 Marc Pufong, Terror, Insecurity, State Responsibility and Challenges: Yesterday and Today?

65 – 77 Ron Kraybill, Responsibility, Community and Conflict Resolution in an Age of Polarization.

78 – 96 John Fairfield, Beyond non-violence to courtship.

97 – 98 Call for papers for forthcoming issues of the International Journal on Responsibility and instructions for authors.

Conviction Beyond A Reasonable Suspicion? The Need For Strengthening The Factual Basis Requirement In Guilty Pleas, Myeonki Kim

Concordia Law Review

Does the court, before accepting a guilty plea, check the accuracy of the plea agreement in any significant way? This article addresses the issues on judges being unconcerned or the inconsistent practice of guiding the stages of guilty plea. The article further suggests that the judge should carefully review its factual basis to avoid a wrongful guilty plea. Although Rule 11(b) of the Federal Rule of Criminal Procedure requires the judges to check the factual basis of the guilty plea, the rule is not paid much attention to legal professionals. Setting the adversarial culture aside, the rule itself has a …

Confronting Silence: The Constitution, Deaf Criminal Defendants, And The Right To Interpretation During Trial, Deirdre M. Smith

Maine Law Review

For most deaf people, interactions with the hearing community in the absence of interpretation or technological assistance consist of communications that are, at most, only partly comprehensible. Criminal proceedings, with the defendant's liberty interest directly at stake, are occasions in which the need for deaf people to have a full understanding of what is said and done around them is most urgent. Ironically, the legal “right to interpretation” has not been clearly defined in either statutory or case law. Although the federal and state constitutions do not provide a separate or lesser set of rights for deaf defendants, their situation …

Unstitching Scarlet Letters?: Prosecutorial Discretion And Expungement, Brian M. Murray

Fordham Law Review

This Article argues that scholarly discussions about prosecutorial discretion need to extend their focus beyond the exercise of prosecutorial judgment pretrial or questions of factual and legal guilt. Given that the primary role of the prosecutoris to do “justice,” this Article calls for increased attention to the exercise of discretion after the guilt phase is complete, specifically in the context of expungement of nonconviction andconviction information. It offers a framework for exercising such discretion and, in doing so, hopes to initiate additional conversation about the role of prosecutors during the phases that follow arrest and prosecution.

Entering The Trump Ice Age: Contextualizing The New Immigration Enforcement Regime, Bill Ong Hing

Texas A&M Law Review

During the early stages of the Trump ICE age, America seemed to be witnessing and experiencing an unparalleled era of immigration enforcement. But is it unparalleled? Did we not label Barack Obama the “deporter-inchief?” Was it not George W. Bush who used the authority of the Patriot Act to round up nonimmigrants from Muslim and Arab countries, and did his ICE not commonly engage in armed raids at factories and other worksites? Are there not strong parallels that can be drawn between Trump enforcement plans and actions and those of other eras? What about the fear and hysteria that seems …

The Bend At The End: What Lawyers Can Learn About Disruptions And Innovations In Criminal Defense Practice From Market Analysis, Donald F. Tibbs, Justin Hollinger

Mercer Law Review

In the world of stock market analysis, there is one certainty: the stock market is unpredictable. It acts with a will of its own, and despite experts' attempts at market forecast, no single person or machine can accurately predict the highs and lows of each day. Nonetheless, market experts extol new techniques; develop computer algorithms; and attach interesting monikers, such as Stochastics, MACD, and Bollinger Bands. But, in the end, they all succumb to the same rule: the unpredictability of the market suggests that no trading strategy is 100%, without fail, perfect every single trade.

That said, however, there is …

The Politics Of Ethics, Laurie L. Levenson

Mercer Law Review

Prosecutors hate being told what to do. As "ministers of justice," they feel imbued with a moral compass that rarely, if ever, needs tweaking by outsiders. Their mission to protect society and the Constitution provides sufficient guidance. Being told how to be "ethical" is downright insulting for attorneys who already perceive themselves as wearing the white hat. Efforts to create ethical standards to guide a prosecutor's work may be perceived as little more than an unnecessary intrusion upon the prosecutor's independence and personal sense of justice. For some prosecutors, it is unwarranted meddling into the prosecution's business. As former Attorney …

A Penal Colony For Bad Lawyers, Bennett L. Gershman

Mercer Law Review

The concept of "disruptive innovation" is vague. Imagining the idea of lawyer "disruption" might conjure a scene from Al Pacino's aggressive role in the 1979 film And Justice for All 9 or embody the tradition of lawyers courageously representing unpopular clients, sometimes placing their lives at risk in courtrooms and on streets. But the panel, I discovered, was more interested in the concept of disruption as descriptive of radical departures from conventional lawyering and conventional discipline.

Recently, as I walked along the narrow cobblestoned streets of Prague--the same streets that Franz Kafka traversed while he was consumed by thoughts of …

Prosecutorial Summation: Where Is The Line Between "Personal Opinion" And Proper Argument?, James W. Gunson

Maine Law Review

Prosecutorial forensic misconduct has become front page news in Maine. Since April of 1993, the Maine Supreme Judicial Court, sitting as the Law Court, has reversed convictions in three highly publicized cases based on remarks made by the prosecutor. In State v. Steen, the prosecutor asked the defendant to give his opinion concerning the veracity of other witnesses and suggested in closing argument that the favorable testimony given by the defense's expert witness resulted from the fee he had received. The Law Court vacated the gross sexual assault conviction, finding that the prosecutor's questions and closing argument “clearly suggested” to …

Acknowledgments, Howard S. Carrier

International Journal on Responsibility

Serious work to bring the International Journal on Responsibility to life commenced during the summer of 2015. In the intervening period between conceptualization and publication, many organizations and individuals within James Madison University and the wider community have contributed enormously to bringing the journal to fruition.

Who Is Responsible For Ethical Legal Education, For What And To Whom? Case Of Kosovo, Sabiha Shala, Gjylbehare Muharti

International Journal on Responsibility

Legal education continues to be one of the most demanded areas of study from the younger generation in Kosovo. As result, the number of law graduates is quite high. On the other hand, the rule of law sector is quite fragile, judges and lawyers are perceived by parts of the society to be ethically dysfunctional. The trust in judicial institutions is quite low. The debate which is going on now is whose main responsibility for such a situation that is. Is the duty of the higher education institutions providing legal education, or is it a responsibility of educational institutions at …

Resolving The Paradox Of Holding People Responsible, Hal Pepinsky

International Journal on Responsibility

Regardless of justification, it is commonplace throughout the U.S. criminal justice system as in everyday life to teach our offenders and children alike that wrong actions “have consequences,” namely, those authority figures promise to impose upon them. We do so in the name of holding people responsible for their actions, or in legal parlance in civil law, holding them accountable or liable. I noticed that in Norwegian, responsibility, accountability and liability translate into one word, ansvar, which I have translated from Germanic to Latin roots as “responsiveness.” In practice, the state of being responsive to others with whom one conflicts …

Political Flip-Flopping, Political Responsibility, Current Governance, And The Disenfranchised, T.Y. Okosun

International Journal on Responsibility

No abstract provided.

What Does Responsibility Mean To Me?, Arun Gandhi

International Journal on Responsibility

No abstract provided.

Who Is Responsible To Do What For Whom? A Letter From The Editor-In-Chief, Terry Beitzel

International Journal on Responsibility

No abstract provided.