Legal Ethics and Professional Responsibility Commons^™

"They Don't Know What They Don't Know": A Study Of Diversion In Lieu Of Lawyer Discipline, Leslie C. Levin, Susan Saab Fortney

Faculty Scholarship

Lawyer misconduct can have devastating consequences for clients. But what is the appropriate regulatory response when lawyers make less serious mistakes? For almost thirty years, jurisdictions have offered some lawyers diversion in lieu of discipline. Diversion is intended to help educate lawyers or treat those with impairments so that they do not reoffend. Yet remarkably little is known about how diversion operates, whether it is used appropriately, and how well it seems to work. This Article addresses these questions. It draws on the limited published data and on interviews with disciplinary regulators in twenty-nine jurisdictions about their use of diversion. …

Ethical Quagmires For Government Lawyers: Lessons For Legal Education, Susan Saab Fortney

Faculty Scholarship

Each presidential administration faces its own challenges related to the ethics of government officials and lawyers. What distinguished the Trump presidency was the steady stream of news reports that related to controversies involving government lawyers. In examining various controversies, this Essay argues that the ethical standards applicable to government lawyers are often thorny and debatable. Fortney discusses how controversies involving alleged misconduct by government lawyers reveal the range and complexity of ethical dilemmas that government lawyers encounter. This Essay asserts that legal educators should do more to empower government lawyers to deal with such ethics issues. To highlight key ethics …

Taking Courthouse Discrimination Seriously: The Role Of Judges As Ethical Leaders, Susan Saab Fortney

Faculty Scholarship

Sexual misconduct allegations against Alex Kozinski, a once powerful judge in the U.S. Court of Appeals for the 9^th Circuit, spotlighted concerns related to sexual harassment in the judiciary. Following news reports related to the alleged misconduct, Chief Justice John G. Roberts, Jr. charged a working group with examining safeguards to deal with inappropriate conduct in the judicial workplace. Based on recommendations made in the Report of the Federal Judiciary Workplace Conduct Working Group, the Judicial Conference approved a number of reforms and improvements related to workplace conduct in the federal judiciary. The reforms included revising the Code of …

Protecting The Guild Or Protecting The Public? Bar Exams And The Diploma Privilege, Milan Markovic

Faculty Scholarship

The bar examination has long loomed over legal education. Although many states formerly admitted law school graduates into legal practice via the diploma privilege, Wisconsin is the only state that recognizes the privilege today. The bar examination is so central to the attorney admissions process that all but a handful of jurisdictions required it amidst a pandemic that turned bar exam administration into a life-or-death matter.

This Article analyzes the diploma privilege from a historical and empirical perspective. Whereas courts and regulators maintain that bar examinations screen out incompetent practitioners, the legal profession formerly placed little emphasis on bar examinations …

Infusing Leadership Competencies Into 1l Professional Identity Formation, Aric Short

Faculty Scholarship

Law schools across the country are beginning to address the growing need to incorporate leadership training into their curricula; however, very few explicitly cover leadership in the 1L year. This article argues for the value of providing leadership training to 1Ls as part of a required course on professional identity formation. Because foundational leadership concepts overlap in meaningful ways with core lawyering competencies, such integration is both practical and efficient. Beginning leadership in the 1L year allows law schools to build on that foundational material in later clinics, externships, upper-level classes, and other experiences, creating deeper leadership skills in their …

Toward More Robust Self-Regulation Within The Legal Profession, Veronica Root Martinez, Caitlin-Jean Juricic

Faculty Scholarship

The Trump Administration left reverberations throughout American life, and the legal profession was not insulated from its impact. The conduct of lawyers—both public and private—working on behalf of former President Trump was the subject of constant conversation and critique. The reality, however, is that the questions regarding the conduct of the Trump Administration lawyers, are rooted, in part, in more fundamental questions about the appropriate role of the lawyer within society. This Essay advocates for the adoption of a self-regulation scheme whereby lawyers regulate and oversee the conduct of other lawyers, to ensure that members of the legal profession are …

Lawyering Paradoxes: Making Meaning Of The Contradictions, Susan P. Sturm

Faculty Scholarship

Effective lawyering requires the ability to manage contradictory yet interdependent practices. In their role as traditionally understood, lawyers must fight, judge, debate, minimize risk, and advance clients’ interests. Yet increasingly, lawyers must ALSO collaborate, build trust, innovate, enable effective risk-taking, and hold clients accountable for adhering to societal values. Law students and lawyers alike struggle, often unproductively, to reconcile these tensions. Law schools often address them as a dilemma requiring a choice or overlook the contradictions that interfere with their integration.

This Article argues instead that these seemingly contradictory practices can be brought together through the theory and action of …

Specialty Bar Associations And The Marketing Of Ethics: The Example Of The Academy Of Adoption Attorneys, Malinda L. Seymore

Faculty Scholarship

In a world of lawyer jokes, memes of sleazy lawyers and the ubiquity of bad lawyers in television shows and movies, lawyers have reason to push back against negative public perceptions of lawyers’ ethics. This article examines the role of specialty bar associations, by using the example of the Academy of Adoption Attorneys, in marketing ethics to the public.

Specialty bar associations have been seen as sites of lawyer socialization and professionalism. Though there are thousands of specialty bar associations with aspirational ethical codes, the Academy of Adoption Attorneys is unusual among such associations in having a mandatory ethics code, …

Keeping Lawyers' Houses Clean: Global Innovations To Advance Public Protection And The Integrity Of The Legal Profession, Susan Saab Fortney

Faculty Scholarship

Around the globe regulators are rethinking the scope of their mandates and responsibilities. They are assuming more expansive roles rather than limiting their efforts to disciplining lawyers after misconduct occurs. This Article examines such regulatory initiatives in three areas. First, it discusses developments related to proactive management-based programs in which regulators partner with lawyers who self-assess their firms’ management systems. Data reveal that such assessments help lawyers avoid problems through developing their firms’ ethical infrastructure. When misconduct occurs, injured persons often seek monetary redress. These persons may not be able to obtain recovery unless they have suffered substantial damages to …

Report To The Wisconsin Office Of Lawyer Regulation: Analysis Of Grievances Filed In Criminal And Family Matters From 2013-2016, Leslie C. Levin, Susan Saab Fortney

Faculty Scholarship

In many states, the highest number of docketed grievances arise out of criminal and family law matters. This report analyzes the 4,898 grievances filed with the Wisconsin Office of Lawyer Regulation (“OLR”) in family or criminal law matters during the period from 2013-2016. The OLR provided the data, enabling analysis of the grievances by gender, age, length of time since law school graduation, type of matter, prior experience with diversion or discipline, and geographical location. The data also revealed the frequency of allegations by practice matter, the types of allegations that led to discipline, and the frequency with which lawyers …

Taking Compliance Seriously, John Armour, Jeffrey N. Gordon, Geeyoung Min

Faculty Scholarship

How can we ensure corporations play by the “rules of the game” – that is, laws encouraging firms to avoid socially harmful conduct? Corporate compliance programs play a central role in society’s current response. Prosecutors give firms incentives – through discounts to penalties – to implement compliance programs that guide and monitor employees’ behavior. However, focusing on the incentives of firms overlooks the perspective of managers, who decide how much firms invest in compliance.

We show that stock-based pay, ubiquitous for corporate executives, creates systematic incentives to short-change compliance. Compliance is a long-term investment for firms, whereas managers’ time horizon …

Capitalizing On Healthy Lawyers: The Business Case For Law Firms To Promote And Prioritize Lawyer Well-Being, Jarrod F. Reich

Faculty Scholarship

This Article is the first to make the business case for firms to promote and prioritize lawyer well-being. For more than three decades, quantitative research has demonstrated that lawyers suffer from depression, anxiety, and addiction far in excess of the general population. Since that time, there have been many calls within and outside the profession for changes to be made to promote, prioritize, and improve lawyer well-being, particularly because many aspects of the current law school and law firm models exacerbate mental health and addiction issues, as well as overall law student and lawyer distress. These calls for change, made …

Online Legal Document Providers And The Public Interest: Using A Certification Approach To Balance Access To Justice And Public Protection, Susan Saab Fortney

Faculty Scholarship

The Internet and electronic communications have revolutionized how consumers obtain legal information and assistance. The availability of legal forms and services has developed at lightning speed and countless consumers are using these forms, rather than consulting attorneys. At the same time, many regulators of the legal profession appear to be frozen in time. Some take the position that the provision of interactive forms amounts to the unauthorized practice of law and others question arrangements that appear to involve the sharing of legal fees with non-lawyers. Even for those interested in regulating the provision of on-line services, one complication to doing …

Assigned Counsel Mentoring Programs: Results And Lessons From Two Pilot Projects, Susan Saab Fortney

Faculty Scholarship

Working with a team of three subject matter experts, the National Legal Aid and Defender Association implemented and evaluated two pilot mentoring projects aimed at helping lawyers who serve as assigned counsel. This report discusses the program design, evaluation outcomes, and offers guidance through lessons learned for other jurisdictions interested in introducing assigned counsel mentoring programs. The author of the report was the principal investigator who evaluated the programs.

This project was supported by grant number 2015-AJ-BX-K043 awarded by the Bureau of Justice Assistance, Office of Justice Programs to the National Legal Aid and Defender Association. The opinions, findings, and …

Rise Of The Robot Lawyers?, Milan Markovic

Faculty Scholarship

The advent of artificial intelligence has provoked considerable speculation about the future of the American workforce, including highly educated professionals such as lawyers and doctors. Although most commentators are alarmed by the prospect of intelligent machines displacing millions of workers, this is not so with respect to the legal sector. Media accounts and some legal scholars envision a future where intelligent machines perform the bulk of legal work, and legal services are less expensive and more accessible. This future is purportedly at hand as lawyers struggle to compete with technologically savvy alternative legal service providers.

This Article challenges the notion …

Mandatory Legal Malpractice Insurance: Exposing Lawyers' Blind Spots, Susan Saab Fortney

Faculty Scholarship

The legal landscape for lawyers’ professional liability in the United States is changing. In 2018, Idaho implemented a new rule requiring that lawyers carry legal malpractice insurance. The adoption of the Idaho rule was the first move in forty years by a state to require legal malpractice insurance since Oregon mandated lawyer participation in a malpractice insurance regime. Over the last two years, a few states have considered whether their jurisdictions should join Oregon and Idaho in requiring malpractice insurance for lawyers in private practice. To help inform the discussion, the article examines different positions taken in the debate on …

Don't Call Me Sweetheart: Why The Aba's New Rule Addressing Harrassment And Discrimination Is So Important For Women Working In The Legal Profession Today, Kristy D'Angelo-Corker

Faculty Scholarship

No abstract provided.

When Less Is More: The Limitless Potential Of Limited Scope Representation To Increase Access To Justice For Low- To Moderate-Income Individuals, Kristy D'Angelo-Corker

Faculty Scholarship

No abstract provided.

Professional Judgment In An Era Of Artificial Intelligence And Machine Learning, Frank A. Pasquale

Faculty Scholarship

Though artificial intelligence (AI) in healthcare and education now accomplishes diverse tasks, there are two features that tend to unite the information processing behind efforts to substitute it for professionals in these fields: reductionism and functionalism. True believers in substitutive automation tend to model work in human services by reducing the professional role to a set of behaviors initiated by some stimulus, which are intended to accomplish some predetermined goal, or maximize some measure of well-being. However, true professional judgment hinges on a way of knowing the world that is at odds with the epistemology of substitutive automation. Instead of …

The Three Ages Of Modern American Lawyering And The Current Crisis In The Legal Profession And Legal Education, Rachel F. Moran

Faculty Scholarship

During the first months of 2018, two short pieces on legal education were published. One reported on the results of a survey of college graduates, law school graduates, and holders of other advanced degrees. The study found that today’s law graduates were less likely than pre-recession counterparts to report that the J.D. degree was worth the cost and more likely to have second thoughts about the decision to go to law school. The findings prompted Aaron Taylor, executive director of the Access Lex Center for Legal Education Excellence, to conclude that there are “two distinct worlds of law graduates” made …

Teaching Bioethics: The Role Of Empathy & Humility In The Teaching And Practice Of Law, Barbara A. Noah

Faculty Scholarship

This essay considers the role of empathy and humility in the professional practices of physicians and lawyers and in those who prepare students for these professions. Beginning with an overview of the goals and methods of legal education, it compares similar goals in medical education and the value of practicing law (and medicine) with empathy and humility. The essay then describes exercises used in the law school classroom designed both to teach law students about end-of-life law and also to allow them to practice counseling clients. Through these exercises, law students can experience firsthand the challenges of advising a client …

Adr And Access To Justice: Current Perspectives, Rory Van Loo, Ellen E. Deason, Michael Z. Green, Donna Shestowsky, Ellen Waldman

Faculty Scholarship

Access to justice is a broad topic, and we cannot cover everything. You will notice a few major omissions. Most notably, we are not going to emphasize consumer pre-dispute arbitration agreements. This is not because they are not important, but because much has been written and said on this topic, and it could easily swallow the whole discussion. Also, we are probably not going to say very much about restorative justice, and I am sure you will notice some other holes. We invite you to raise missing issues in your comments.

Let me start with a few opening remarks. We …

The State's Role In The Regulation And Provision Of Legal Services In South Africa And The United States: Supporting, Nudging Or Interfering?, Helen Kruuse, Philip Genty

Faculty Scholarship

An independent legal profession is said to be “the bulwark of a free and democratic society.” It is also said that a high measure of independence of mind and action by legal actors is necessary for the maintenance of the rule of law. However, too often, there is the allegation (within the sociological literature in particular) that the legal profession has used the concepts of independence and the rule of law as a shield or cuirass rather than as a sword. The image of lawyers representing unpopular clients fearlessly and advocating on behalf of unpopular causes, so as to uphold …

The Politics Of Professionalism: Reappraising Occupational Licensure And Competition Policy, Sandeep Vaheesan, Frank A. Pasquale

Faculty Scholarship

No abstract provided.

Attorney-Client Confidentiality: A Critical Analysis, William H. Simon

Faculty Scholarship

Attorney-client confidentiality doctrine is distinguished by its expansiveness and its rigid or categorical form. This brief essay argues that the rationales for these features are unpersuasive. It compares the “strong confidentiality” of current doctrine to a hypothetical narrower and more flexible “moderate confidentiality” and concludes that moderate confidentiality is more plausible. It is unlikely that current doctrine yields benefits that justify its costs.

Designing And Improving A System Of Proactive Management-Based Regulation To Help Lawyers And Protect The Public, Susan Saab Fortney

Faculty Scholarship

Increasingly, lawyers and decision-makers are recognizing the limitations and consequences of current approaches to attorney regulation. Inspired by developments in other countries, regulators in the United States and Canada have started the process of exploring innovative approaches, including proactive management-based regulation. The term, proactive-management regulation (PMBR), was first used by Professor Ted Schneyer to refer to a regulatory approach designed to promote ethical law practice by assisting lawyers with practice management.

The seed for PMBR was first planted in the Australian state of New South Wales (NSW). It grew out of the legislation that allowed limited liability and non-lawyer ownership …

Peter Singer, Drowning Children, And Pro Bono, John M.A. Dipippa

Faculty Scholarship

This Article uses the ethicist Peter Singer's principles to examine and critique the legal profession's pro bono efforts in the face of the persistent gap between the public's legal needs and their ability to meet them. Singer argues that adults should jump into a pond to save a drowning child. Using the drowning child as an analogy, this Article argues that lawyers are morally obligated to (1)increase the amount of their pro bono efforts, (2) be more selective in the cases they take, and (3) be significantly more generous in their financial support for legal services providers. These obligations are …

Lawyers And The Secret Welfare State, Milan Markovic

Faculty Scholarship

This Article suggests that the United States maintains a secret welfare state. The secret welfare state exists because of lawyers’ ubiquitous use of questionable practices in representing clients before benefit-granting government agencies, which enable thousands of individual to collect public benefits who may not qualify for them. This Article focuses in particular on lawyers’ handling of evidence of nondisability in Social Security Disability Insurance (SSDI) proceedings and participation in Medicaid planning. It may be possible that the legal profession’s central role in the distribution of public benefits is an obstacle to a fairer and more transparent social safety net.

Being Good Lawyers: A Relational Approach To Law Practice, Eli Wald, Russell G. Pearce

Faculty Scholarship

In response to past generations of debates regarding whether law is a business or profession, we advance an alternative approach that rejects the dichotomies of business and profession, or hired gun and wise counselor. Instead, we propose a relational account of law practice. Unlike frameworks grounded in assumptions of atomistic individualism or communitarianism, a relational perspective recognizes that all actors, whether individuals or organizations, have separate identities yet are intrinsically inter-connected and cannot maximize their own good in isolation. Through the lens of relational self-interest, maximizing the good of the individual or business requires consideration of the good of the …

Juking Access To Justice To Deregulate The Legal Market, Milan Markovic

Faculty Scholarship

Study after study has concluded that the United States suffers from a lack of access to justice because most legal issues are addressed without attorney involvement. To better serve Americans who cannot currently afford legal assistance, scholars have argued that corporations should be permitted to offer legal services. England and Australia already allow corporations to own law firms and deliver legal services.

Whatever the merits of corporate delivery of legal services, its impact on access to justice has been overstated. The cost of legal services plays a minor role in decisions to not obtain legal assistance. Moreover, many legal services …