Legal Ethics and Professional Responsibility Commons^™

Artificial Intelligence And Contract Formation: Back To Contract As Bargain?, John Linarelli

Book Chapters

Some say AI is advancing quickly. ChatGPT, Bard, Bing’s AI, LaMDA, and other recent advances are remarkable, but they are talkers not doers. Advances toward some kind of robust agency for AI is, however, coming. Humans and their law must prepare for it. This chapter addresses this preparation from the standpoint of contract law and contract practices. An AI agent that can participate as a contracting agent, in a philosophical or psychological sense, with humans in the formation of a con-tract will have to have the following properties: (1) AI will need the cognitive functions to act with intention and …

Changing Every Wrong Door Into The Right One: Reforming Legal Services Intake To Empower Clients, Jabeen Adawi

Articles

It’s recognized that people affected by poverty often have numerous overlapping legal needs and despite the proliferation of legal services, they are unable to receive full assistance. When a person is faced with a legal emergency, rarely is there an equivalent to a hospital’s emergency room wherein they receive an immediate diagnosis for their needs and subsequent assistance. In this paper, I focus on the process a person goes through to find assistance and argue that it is a burdensome, and demoralizing task of navigating varying protocols, procedures, and individuals. While these systems are well intentioned from the lawyer’s perspective, …

Selling Out: An Instrumentalist Theory Of Legal Ethics, Keith N. Hylton

Faculty Scholarship

Legal ethics has received attention mostly from scholars who view it as a field for the application of moral philosophy. However, economic analysis is also useful in the study of legal ethics, because it can illuminate the incentives that generate ethical dilemmas and controversies. This is especially true in the subfield this paper devotes its attention to, lawyer conflict of interest rules. The problem I focus on is the incentive of the lawyer to "sell out" his client-for example, by providing confidential information to a potential adversary or by providing legal misinformation to the client in order to aid the …

Stay In The Fight With Civility And Professionalism, David Spratt

Articles in Law Reviews & Other Academic Journals

No abstract provided.

The Ethical Tax Judge, Kim Brooks

Articles, Book Chapters, & Popular Press

This chapter advances the claim that judges have an ethical obligation of competence that requires them to enhance their knowledge about language (in the context of statutory interpretation) and income tax law design and policy. It articulates some of the foundational understandings that support that competence and provides a simple hierarchy of approaches to interpreting income tax law. It concludes by contending that greater competence is not only more ethical but also advances other important societal goals fulfilled by the imposition of income tax systems.

The Other Janus And The Future Of Labor’S Capital, David H. Webber

Faculty Scholarship

Two forms of labor’s capital—union funds and public pension funds—have profoundly reshaped the corporate world. They have successfully advocated for shareholder empowerment initiatives like proxy access, declassified boards, majority voting, say on pay, private fund registration, and the CEO-to-worker pay ratio. They have also served as lead plaintiffs in forty percent of federal securities fraud and Delaware deal class actions. Today, much-discussed reforms like revised shareholder proposal rules and mandatory arbitration threaten two of the main channels by which these shareholders have exercised power. But labor’s capital faces its greatest, even existential, threats from outside corporate law. This Essay addresses …

Perfectly Frank: A Reflection On Quality Lawyering In Honor Of R. Franklin Balotti, Leo E. Strine Jr., James J. Hanks Jr., John F. Olson, A. Gilchrist Sparks, E. Norman Veasey, Gregory P. Williams

All Faculty Scholarship

This essay honoring the late R. Franklin Balotti focuses upon certain of the key attributes necessary to practice business law effectively and ethically. Among these attributes are a strong work ethic, the integrity to stand behind your own advice and candidly admit when things do not go according to plan, empathy for how others will view your client’s actions and the ability to communicate that perception to your client, the confidence to change the pace of a transaction when a slow down or time out is warranted, and the ability to have some fun and laugh (even at yourself). Perhaps …

The Professional Prospectus: A Call For Effective Professional Disclosure, Benjamin P. Edwards

Scholarly Works

Without easy access to relevant information, many consumers unwittingly trust serious decisions to professionals with histories of malpractice and negligence-leading to both individual and societal harms. This Article proposes to improve professional services markets with a tool that has already proven effective in the securities markets: a prospectus. A "Professional Prospectus" would reduce information asymmetries and improve the market for professional services through disclosure and consumer choice.

A Professional Prospectus would alter the market for professional services by making professional reputation a more potent force. Economic theory often relies on "reputation effects" to ensure the efficient functioning of the market …

Mutually Assured Protection Among Large U.S. Law Firms, Tom Baker, Rick Swedloff

All Faculty Scholarship

Top law firms are notoriously competitive, fighting for prime clients and matters. But some of the most elite firms are also deeply cooperative, willingly sharing key details about their finances and strategy with their rivals. More surprisingly, they pay handsomely to do so. Nearly half of the AmLaw 100 and 200 belong to mutual insurance organizations that require member firms to provide capital; partner time; and important information about their governance, balance sheets, risk management, strategic plans, and malpractice liability. To answer why these firms do so when there are commercial insurers willing to provide coverage with fewer burdens, we …

The Economic Justice Imperative For Transactional Law Clinics, Lynnise E. Pantin

Faculty Scholarship

The economic, political, and social volatility of the sixties and seventies, out of which clinical legal education was born, has certain mythical qualities for most law students, and perhaps some law professors. America still bears the scars of the economic policies of those previous eras, such as redlining, blockbusting, poverty and urban decay. While the realities of the era may seem out of reach for many of our students, those arising out of that era have contributed to the wealth gap in this country, which has worsened over the last twenty years. Now more than ever, society needs social justice …

Video: Happy Lawyers Make More Money: How To Achieve Financial Success, Fulfill Your Ethical Obligations, And Manage A Profitable Small Law Firm, How To Manage A Small Law Firm

NSU Law Seminar Series

How To MANAGE a Small Law Firm was founded by attorney RJon Robins. He quickly realized that despite having done quite well in law school, completing a prestigious 9 credit internship with the US Trustee’s Office and clerking for a Federal Bankruptcy Judge, he knew next to nothing about how to actually manage the business of a small law firm.

RJon did eventually discover how to manage a small law firm and was recruited by The Florida Bar’s Law Office Management Assistance Service (LOMAS) to teach his fellow lawyers how to find, fix and avoid the sort of marketing, sales, …

Meta-Mindfulness: A New Hope, Peter H. Huang

Publications

This Essay starts by tracing its humble origins to an earlier, related and unique law review article, namely, Tiger Cub Strikes Back: Memoirs of an Ex-Child Prodigy About Legal Education and Parenting. This Essay describes various professional responses to Tiger Cub Strikes Back, provides an update of some developments in research about parenting and legal education since Tiger Cub Strikes Back, and recounts a few personal stories about mindfulness and related to being an ex-child prodigy. This Essay then analyzes meta-mindfulness, defined as mindfulness about mindfulness. This Essay discusses how mindfulness about mindfulness can help facilitate the …

Liability Insurer Data As A Window On Lawyers’ Professional Liability, Tom Baker, Rick Swedloff

All Faculty Scholarship

Using the best publicly available data on lawyers’ liability claims and insurance – from the largest insurer of large law firms in the U.S., the American Bar Association’s Standing Committee on Professional Liability, and a summary of large claims from a leading insurance broker–this article reports the frequency of lawyers’ liability claims, the distribution and cost of claims by type of practice, the disposition of claims, and lawyers liability insurance premiums from the early 1980s to 2013. Notable findings include remarkable stability over thirty years in the distribution of claims by area of practice among both small and large firms, …

How Improving Decision-Making And Mindfulness Can Improve Legal Ethics And Professionalism, Peter H. Huang

Publications

Lawyers who behave unethically and unprofessionally do so for various reasons, ranging from intention to carelessness. Lawyer misconduct can also result from decision-making flaws. Psychologist Chip Heath and his brother Dan Heath, in their best-selling book, Decisive: How to Make Better Decisions in Life and Work, suggest a process to improve people’s decision-making. They introduce the acronym WRAP as the mnemonic for these decision-making heuristics: (1) Widen your options, (2) Reality-test your assumptions, (3) Attain distance before deciding, and (4) Prepare to be wrong. The WRAP process mitigates these cognitive biases: (1) narrow framing of a decision problem, (2) …

The Modern Corporation Magnified: Managerial Accountability In Financial Services Holding Companies, Anita Krug

All Faculty Scholarship

This Article first recalls the primary contours of Adolf Berle and Gardiner Means’s acclaimed observations regarding the separation of ownership and control in the “modern corporation,” as well as their conclusions about the implications of those observations for the doctrine of shareholder primacy. Second, the Article describes how the activities of FSHCs generally differ from what we think corporations do and, certainly, from what Berle and Means conceived of as the purpose of corporations or, indeed, any business enterprise. Third, this Article articulates how those business activities render more acute the problem of the separation of ownership and control that …

Micro-Symposium On Orin Kerr's 'A Theory Of Law', Laura Appleman, Shawn Bayern, Adam D. Chandler, Robert Cheren, Miriam A. Cherry, Ross E. Davies, Lee Anne Fennell, Paul A. Gowder, Caitlin Hartsell, Kieran Healy, Robert A. James, Jeffrey H. Kahn, Orin S. Kerr, Jacob T. Levy, Jeffrey M. Lipshaw, Orly Lobel, Geoffrey A. Manne, Chad M. Oldfather, Ronak Patel, Jeffrey A. Pojanowski, Alexandra J. Roberts, Kent Scheidegger, Arthur Stock, Anders Walker

All Faculty Scholarship

For more than a century, careful readers of the Green Bag have known that “[t]here is nothing sacred in a theory of law...which has outlived its usefulness or which was radically wrong from the beginning...The question is What is the law and what is the true public policy?” Professor Orin Kerr bravely, creatively, and eloquently answered that question in his article, “A Theory of Law,” in the Autumn 2012 issue of the Green Bag. Uniquely among all theories of law that I know of, Kerr’s answer to the fundamental question of law and true public policy enables all scholars to …

A Conflict By Any Other Name Would Smell As Foul: A Comment On The Appointment Of A Vice-President Of Pfizer To The Cihr Governing Council, Jocelyn Downie

Articles, Book Chapters, & Popular Press

If one had to pick the pharmaceutical company most associated with unethical and illegal conduct this past year, it would likely be Pfizer. So it seems reasonable to respond with disbelief and outrage to the federal government’s October 5, 2009 appointment of Dr. Bernard Prigent – Vice President, Medical Director and registered lobbyist for Pfizer Canada – to the Canadian Institutes of Health Research Governing Council (CIHR GC). This is the body that sets the strategic direction for most federally funded health research in Canada. A senior executive from a for-profit pharmaceutical company should not be given a seat at …

Dr. Cézanne And The Art Of Re(Peat)Search: Competing Interests And Obligations In Clinical Research, Robyn Bluhm, Jocelyn Downie, Jeff Nisker

Articles, Book Chapters, & Popular Press

Clinician researchers have a number of roles, each of which carries specific obligations. There are times when these obligations may be in competition (up to and including conflict) with each other. Using a narrative case study that describes a group of colleagues discussing their clinical department's participation in an industry-sponsored research protocol, we illustrate a number of the obligations faced by clinician researchers, and discuss how competing interests and obligations can lead to ethical problems. The case study is followed by a discussion of the effect of university–industry relations on competing interests and obligations in both clinical research and the …

Foreword: On Publishing Anonymously, Anthony C. Infanti

Articles

In this foreword to the fall 2010 issue of the Pittsburgh Tax Review, I explain the troubling set of circumstances that led to our decision to publish one of the articles anonymously. All of the articles in this issue share a focus on suggestions for state and local tax reform in Pennsylvania. The circumstances surrounding the decision to publish this one article anonymously raise a host of questions regarding the extent to which tax professionals are free to make suggestions for tax reform without being subject to employer censorship.

Creeping Impoverization: Material Conditions, Income Inequality, And Erisa Pedagogy Early In The 21st Century, Maria O'Brien

Faculty Scholarship

To say that poverty remains one of the most pressing issues of our time is a colossal understatement. A staggering number of people on the planet live in poverty. In the United States alone, the working poor and those living at or below the poverty line make up 12.6 percent of our populace.' While these individuals may not all be in imminent danger of starving or homelessness, they often lack basic safeguards that those in the upper socio-economic levels of society take for granted: basic health insurance, access to pension programs, disability coverage, and the certainty of a living wage …

Conflicts Of Interest, Ellen Y. Suni

Faculty Works

No abstract provided.

Regulatory Responses To Investor Irrationality: The Case Of The Research Analyst, Jill E. Fisch

All Faculty Scholarship

An extensive body of behavioral economics literature suggests that investors do not behave with perfect rationality. Instead, investors are subject to a variety of biases that may cause them to react inappropriately to information. The policy challenge posed by this observation is to identify the appropriate response to investor irrationality. In particular, should regulators attempt to protect investors from bad investment decisions that may be the result of irrational behavior?

This Article considers the appropriate regulatory response to investor irrationality within the concrete context of the research analyst. Many commentators have argued that analyst conflicts of interest led to biased …

The "Bad Man" Goes To Washington: The Effect Of Political Influence On Corporate Duty, Jill E. Fisch

All Faculty Scholarship

No abstract provided.

Economic Rationality Vs. Ethical Reasonableness: The Relevance Of Law And Economics For Legal Ethics, W. Bradley Wendel

Cornell Law Faculty Publications

No abstract provided.

Lawyers' Bargaining Ethics, Contract, And Collaboration: The End Of The Legal Profession And The Beginning Of Professional Pluralism, Scott R. Peppet

Publications

This Article combines contractarian economics and traditional ethical theory to argue for a radical revision of the legal profession's codes of ethics. That revision would end the legal profession as we know it-one profession, regulated by one set of ethical rules that apply to all lawyers regardless of circumstance. It would replace the existing uniform conception of the lawyer's role with a more heterogeneous profession in which lawyers and clients could contractually choose the ethical obligations under which they wanted to operate. This "contract model" of legal ethics, in which lawyers could opt in and out of various ethical constraints, …

The Attorney As Gatekeeper: An Agenda For The Sec, John C. Coffee Jr.

Faculty Scholarship

Section 307 of the Sarbanes-Oxley Act authorizes the SEC to prescribe "minimum standards of professional conduct" for attorneys "appearing or practicing" before it. Although the initial debate has focused on issues of confidentiality, this terse statutory provision frames and seemingly federalizes a much larger question: What is the role of the corporate attorney in public securities transactions? Is the attorney's role that of (a) an advocate, (b) a transaction cost engineer, or, more broadly, (c) a gatekeeper – that is, a reputational intermediary with some responsibility to monitor the accuracy of corporate disclosures? Skeptics of any gatekeeper role for attorneys …

Is There A Role For Lawyers In Preventing Future Enrons?, Jill E. Fisch, Kenneth M. Rosen

All Faculty Scholarship

Following the collapse of the Enron Corporation, the ethical obligations of corporate attorneys have received increased scrutiny. The Sarbanes-Oxley Act of 2002, enacted in response to calls for corporate reform, specifically requires the Securities and Exchange Commission to address the lawyer’s role by requiring covered attorneys to “report up” evidence of corporate wrongdoing to key corporate officers, and, in some circumstances, to the board of directors. Failure to “report up” subjects a lawyer to liability under federal law.

This Article argues that the reporting up requirement reflects a second-best approach to corporate governance reform. Rather than focusing on the actors …

Contractarian Economics And Mediation Ethics: The Case For Customizing Neutrality Through Contingent Fee Mediation, Scott R. Peppet

Publications

No abstract provided.

Nonlegal Regulation Of The Legal Profession: Social Norms In Professional Communities, W. Bradley Wendel

Cornell Law Faculty Publications

What should be done about lawyers who persist in violating ethical norms that are not embodied in positive disciplinary rules? That question has been a recurrent theme in recent legal ethics scholarship. One response has been to propose, experiment, amend, tinker, draft, comment, and redraft, in an attempt to codify the standard of conduct observed to be flouted widely by the practicing bar. Bar associations and courts are seemingly engaged in a never-ending process of promulgating new codes of professional conduct or rules of procedure under which lawyers may be sanctioned for such conduct as bringing frivolous lawsuits, abusing the …

Aggregation, Auctions, And Other Developments In The Selection Of Lead Counsel Under The Pslra, Jill E. Fisch

All Faculty Scholarship

No abstract provided.