Legal Ethics and Professional Responsibility Commons^™

Ethical Duty To Investigate Your Client?, Peter A. Joy

St. Mary's Journal on Legal Malpractice & Ethics

Lawyers have been implicated in corporate scandals and other client crimes or frauds all too often, and the complicity of some lawyers is troubling both to the public and to members of the legal profession. This is especially true when the crime involved is money laundering. As a response to attorney involvement in crimes or frauds, some legal commentators have called for changes to the ethics rules to require lawyers to investigate their clients and client transactions under some circumstances rather than remaining “consciously” or “willfully” blind to what may be illegal or fraudulent conduct. The commentators argue that such …

“Listserv Lawyering”: Definition And Exploration Of Its Utility In Representation Of Consumer Debtors In Bankruptcy And In Law Practice Generally, Josiah M. Daniel Iii

St. Mary's Journal on Legal Malpractice & Ethics

The author examines the communications and activities of bankruptcy lawyers participating in the listserv of the Bankruptcy Law Section of the State Bar of Texas and finds that those activities constitute a previously unrecognized form of “lawyering,” which he has defined as the work of lawyers in and through the legal system to accomplish the objectives of their clients. Review of specific postings about legal issues and practical problems by Texas bankruptcy lawyers, whose practices are primarily on behalf of individual debtors in cases under Chapters 7 and 13 of the Bankruptcy Code, and observations about the voluntary, collaborative, and …

Ethical Issues With Lawyers Openly Carrying Firearms, Dru Stevenson

St. Mary's Journal on Legal Malpractice & Ethics

Ethical concerns arise when lawyers openly carry firearms to adversarial meetings related to representation, such as depositions and settlement negotiations. Visible firearms introduce an element of intimidation, or at least the potential for misunderstandings and escalation of conflicts. The adverse effects of openly carried firearms can impact opposing parties, opposing counsel, the lawyer’s potential clients, witnesses, and even judges and jurors encountered outside the courtroom. The ABA’s Model Rules of Professional Conduct in their current form include provisions that could be applicable, such as rules against coercion and intimidation, but there is no explicit reference to firearms. Several reported incidents …

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 …

The Uneasy History Of Experiential Education In U.S. Law Schools, Peter A. Joy

Dickinson Law Review (2017-Present)

This article explores the history of legal education, particularly the rise of experiential learning and its importance. In the early years of legal education in the United States, law schools devalued the development of practical skills in students, and many legal educators viewed practical experience in prospective faculty as a “taint.” This article begins with a brief history of these early years and how legal education subsequently evolved with greater involvement of the American Bar Association (ABA). With involvement of the ABA came a call for greater uniformity in legal education and guidelines to help law schools establish criteria for …

The Agony Of Modern Legal Ethics, 1970-1985., Michael Ariens

St. Mary's Journal on Legal Malpractice & Ethics

When the American Bar Association (ABA) adopted its Code of Professional Responsibility at its annual meeting in August 1969, the American legal profession was a publicly respected and economically vibrant body. Lawyers, though always more feared than loved, became increasingly important in post-World War II America. The demand for their services exploded for a quarter-century, and lawyers assumed an increased role in the economic and political life of the United States. During the 1950s and early 1960s, the Cold War led American lawyers and other public figures to re-emphasize the rule of law as defining the difference between the United …

A Professional (Lack Of) Courtesy: The Emergence Of Expert Testimony In Legal And Medical Malpractice Cases., Jeffrey I.H. Soffer

St. Mary's Journal on Legal Malpractice & Ethics

This Article investigates the role of expert testimony in legal malpractice and medical malpractice cases; analyzing similarities and differences between the two and the evolution of case law in this context. The Article also examines numerous challenges potential expert witnesses face, including harsh backlash from their colleagues and repercussions from their professional organizations. Finally, the Article discusses the future of the legal malpractice and medical malpractice landscape as it pertains to expert testimony and what we should look for moving forward.

Seen But Not Heard: Advocating For Children In New York State, Sarah L. Marx

Touro Law Review

On November 1, 2008, the New York State Bar Association House of Delegates approved a resolution affirming their commitment towards establishing a civil right to counsel in New York State. One of the issues identified is a child's right to representation not only in criminal, but also civil proceedings. Unlike other litigant groups, children have a statutorily established right to council in civil proceedings. However, as the white paper, adopted by the New State Bar Association, details, there are gaps in children 's advocacy throughout New York State. While significant steps towards improvement have recently taken place, there is still …

A Call To Action: A Client-Centered Evaluation Of Collaborative Law, Alexandria Zylstra

Pepperdine Dispute Resolution Law Journal

This paper will first examine the process of collaborative law, from deciding to hire a collaborative lawyer to the disqualification agreement, as well as identifying potential dangers for the client, including an analysis of collaborative law utilizing the negotiation theory of Roger Fisher and William Ury's book Getting to Yes. The second part of the paper will examine how collaborative law literature evaluates and critiques the costs and benefits of collaborative law. This paper ultimately finds that the cost-benefit analysis either stems from small, non-controlled studies or personal anecdotes, or discussions of whether collaborative law complies with ethics rules, …

The Truth Shall Set You Free: A Distinctively Christian Approach To Deception In The Negotiation Process, Al Sturgeon

Pepperdine Dispute Resolution Law Journal

This paper examines whether the Christian religion offers a distinct position on the use of deception in the negotiation process. It is expected to be of primary interest to Christian negotiators, but combining the popularly understood theorem that "everyone negotiates on some level" with the fact that there are over 173 million Christian adherents in the United States alone, the topic may be of general interest to anyone who negotiates. There is apparently neither an official nor a widespread recognition of a distinct Christian position on the use of deception in negotiation at present. It is this article's proposal, however, …

The Emperor's New Clothes: Cloaking Client Protection Under The New Model Court Rule On Insurance Disclosure The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility: Comment., Nicole D. Mignone

St. Mary's Law Journal

Traditionally, the legal profession prides itself on its ability to self-regulate and prefers to “take care of its own” in the disciplinary realm. The Model Court Rule on Insurance Disclosure (the Rule) invites an initial effort toward the legal profession’s self-regulating ideals and client protection. The Rule requires private practice attorneys to report to their state whether they plan to maintain liability insurance, which is then disclosed to the public. Unfortunately, the Rule’s ambiguous language and requirements create worrisome issues for both the attorney and client. Attorneys without malpractice insurance may be indirectly forced to obtain it. This expense could …

Ethics And Due Diligence: A Lawyer's Perspective On Doing Business With Mexico., Rona R. Mears

St. Mary's Law Journal

The focus of this study is to survey ethical issues faced by legal practitioners in providing legal counsel for international business transactions, with special attention to lawyers counseling clients who are doing business with Mexico. This paper is intended for lawyers who practice in the United States (U.S.), involved in counseling clients outside the U.S. The purpose of this study is to highlight only those issues that raise special difficulties for such a practitioner, and then to provide practical advice on how to avoid ethical problems in U.S.-Mexico transactions. The Model Rules of Professional Conduct (MPRC), the International Code of …

A Trial Court's Refusal To Question Prospective Jurors About The Specific Contents Of Pretrial Publicity Which They Had Read Or Heard Did Not Violate A Defendant's Sixth Amendment Right To An Impartial Jury, Or Fourteenth Amendment Right To Due Process., Karen A. Cusenbary

St. Mary's Law Journal

In Mu'Min v. Virginia, the United States Supreme Court held a defendant has no right to ask jurors about the potential influence of prejudicial pretrial publicity. A defendant may ask only if the jurors can remain impartial. The Court mandates that overturning a trial court’s jury selection is allowable only if manifest error renders the trial fundamentally unfair. The Court did not find that the case involved sufficient public passion to necessitate a more extensive jury examination by the trial court to include inquiries involving the effect of pretrial publicity. The ruling in Mu'Min leaves too much discretion to the …