Legal Ethics and Professional Responsibility Commons^™

Legal Malpractice Statutes Of Limitations: A Critical Analysis Of A Burgeoning Crisis, Joseph H. Koffler

Akron Law Review

Surprisingly little has been written on the law of legal malpractice. Even more disturbing is the fact that there is little analytical writing to help guide the courts and bar in this area. The analysis and recommendations contained in this article are intended as a basis in developing rules for statutes of limitations in legal malpractice actions that meet the needs of the parties, the test of fundamental fairness, and evoke a genuine sense of confidence in society.

Lawyer Discipline In Ohio During The 1980'S: A Decade Of Progress?, Stanley A. Samad

Akron Law Review

Through a series of articles, the author has traced the development of lawyer discipline in Ohio since 1967, with special emphasis on the decade of the 1980's.

This article is intended as an evaluation of the progress in lawyer discipline in Ohio during that decade. The norms for evaluation are the standards for lawyer discipline established by the American Bar Association (ABA) substantively and procedurally. Substantively, the "law of lawyering" appears primarily (although not exclusively) through either the 1969 ABA Model Code of Professional Responsibility (CPR), or the 1983 ABA Model Rules of Professional Conduct and Responsibility (RPC). Procedurally, the …

The Client Retention Agreement - The Engagement Letter, William C. Becker

Akron Law Review

What I propose to do in this paper is to review various aspects of engagement or client retention agreements. As background, I have examined some of the forms' which are suggested for these agreements and a number of agreements currently in use by lawyers and law firms, principally in the Summit County, Ohio area. The purpose of this effort is to examine some key provisions of these agreements and, perhaps, suggest possible improvements.

Lawyer Discipline In Ohio, 1988: Some Observations, Stanley A. Samad

Akron Law Review

Table I summarizes the disposition of disciplinary cases reaching the Supreme Court of Ohio for final action in 1988, and eight earlier years. This note discusses the volume of activity during 1988 compared with earlier years, the sanctions that were given, and rule changes affecting discipline. It comments on the types of offenses and the shortfall of Ohio's disciplinary system as measured by the American Bar Association Standards for Lawyer Discipline and Disability Proceedings (hereinafter "ABA Standards"). It recommends a further change in the rules.

Mahoning County Bar Association V. Theofilos: Fumbling For A Standard, Eric C. Cotton

Akron Law Review

Theoretically, a practicing attorney in Ohio must tailor his conduct to meet certain minimum professional standards adopted by the Ohio Supreme Court. In reality however, an attorney suddenly may find himself confronted with a disciplinary proceeding because of judicial inconsistency and ambiguity within the Code of Professional Responsibility. In Mahoning County Bar Ass 'n v. Theofilos, the Ohio Supreme Court faced an issue representative of "borderline" conduct. Unfortunately, the court sidestepped this timely opportunity to provide some much-needed guidance for the legal profession. In Theofilos, the attorney knew a client only four months before drafting a will for …

Shapero - Direct Mail Clarified, William C. Becker

Akron Law Review

In June, 1988 the Supreme Court handed down a decision which the bar had eagerly awaited. Now, the evolving, slippery subject of lawyer advertising and solicitation has been clarified further. This article examines several cases involving attorney advertising and provides a general overview of acceptable and nonacceptable methods of advertising by direct mail.

From Bigelow To Shapero: Steps Along The Way In Attorney Advertising, Horace E. Johns

Akron Law Review

In essence, the rationale for denying attorneys the right to advertise was to protect the public from overly-zealous attorneys who might be inclined to utilize unscrupulous methods to take advantage of unknowing clients.

Five reasons have been offered to support bans on advertising; (1) protection of consumers from misrepresentation concerning both price and the likelihood of successful litigation; (2) commercialization of the legal profession, resulting in neglect of clients; (3) prevention of overcharging and the securing of too many cases by attorneys to cover the costs of advertising; (4) protection of the bar's integrity; and (5) initiation of too many …

Safe From Subpoena? The Importance Of Certificates Of Confidentiality To The Viability And Ethics Of Research, Emily Haney-Caron, Naomi E. Goldstein, David Dematteo

Akron Law Review

This Article addresses legal issues related to Certificates, recognizes that Certificates face an uncertain future if challenged in court—based on the statutory history and limited relevant case law—and proposes that changes should be made to ensure Certificates actually offer the protection they promise. Part II reviews the background of Certificates of Confidentiality. Part III explores how Certificates fulfill vital functions by encouraging research participation, satisfying ethical obligations of researchers to protect participant data, and promoting the accuracy of data provided by participants in research studies. Part IV observes that the case law relevant to Certificates of Confidentiality, though limited, presents …

Lawyer Liability In Third Party Situations: The Meaning Of The Kaye Scholer Case, Geoffrey C. Hazard Jr.

Akron Law Review

The purpose of this analysis is to explain what Kaye Scholer was about, what are the basic concepts of lawyer liability to third parties, and why the practicing bar should heed a "wake up call."

Sex And The Attorney-Client Relationship: An Argument For A Prophylactic Rule, Nancy E. Goldberg

Akron Law Review

In this paper, I argue that the initiation of sexual contact during the tenure of an attorney-client relationship is unethical and should be explicitly proscribed by the rules governing professional conduct. Although such behavior may be implicitly prohibited by existing disciplinary provisions, I advocate the promulgation of a bright line rule. Drawing such a line is required by reasons similar to those applicable in the medical profession. Additional rationales exist as well, which are unique to the legal profession.

Furthermore, the focus of this paper is on sexual relationships arising after the attorney-client relationship has begun. Representation of a client …

Law Firm Ownership Of Ancillary Businesses In Ohio - A New Era?, Stephen R. Ripps

Akron Law Review

The seeds of controversy about ancillary businesses were planted in 1983 when the American Bar Association's House of Delegates approved Model Rule 5.4 prohibiting non-lawyer participation in law firm businesses. Ohio has adopted the ABA Code of Professional Responsibility, not the Model Rules, but the Model Rules may nevertheless have an impact on the interpretation and development of ethical guidelines in Ohio and other Code states. In order to determine the status of ancillary businesses in Ohio today, analysis must proceed in this dual context.

Privileged Communications In Ohio And What's New On The Horizon: Ohio House Bill 52 Accountant-Client Privilege, David B. Canning

Akron Law Review

The goal of this Comment is to provide a general background on privileges, to discuss justifications and various aspects of the major testimonial privileges Ohio currently recognizes under Ohio Revised Code (ORC) § 2317.02, and to analyze Ohio House Bill 527 concerning the accountant-client privilege. Part II will provide a historical background and the existing rationale for privileges in general. Part III will break down ORC § 2317.02 into the major privileges recognized in Ohio. The background and rationale of these most common privileges will be discussed, including notable aspects such as waiver and various court interpretations. Part IV of …

Address At The Annual School Of Law Dean's Club Dinner: Integrity, Stephen L. Carter

Akron Law Review

I would like to begin by saying how very pleased I am to be here for the Dean's Club Dinner, especially celebrating the 75th anniversary of the University of Akron School of Law. Someone is speculating today that this school may have a higher proportion of its graduates sitting on various courts than I suspect any law school in the country. That's a marvelous achievement and suggests that something very important is going on in the classrooms here. Students are learning the law; not simply being instilled with the love of learning, but are also learning a kind of moral …

Ohio Ethics Law Reforms: Tracing The Political And Legal Implications, Jack P. Desario, David E. Freel

Akron Law Review

To provide a comprehensive understanding of ethics reforms, this article will consist of four major sections. First, the article will explore Ohio's Ethics Laws and the agencies responsible for their enforcement prior to 1994. Second, the article will discuss the factors which contributed to calls for reform, as well as early reform efforts. Third, the article will explore and analyze legislative and media responses to the call for ethics reform. Finally, the article will summarize the outcome of the reform process and provide a review of the implications of the reformed Ethics Law.

The Future Of Iolta: Has The Death Knell Been Sounded For Mandatory Iolta Programs?, David J. Hrina

Akron Law Review

This comment seeks to outline the history of IOLTA, it’s current status, and it’s probable future in light of recent court decisions. First, the comment considers the history of IOLTA programs in both the United States and in Ohio. Second, it examines the primary types of constitutional challenges endured by IOLTA programs. Third, this comment focuses on the unlikely continued viability of IOLTA programs, in light of recent court decisions. Finally, this comment concludes with the proposition that mandatory IOLTA programs are on the verge of being declared unconstitutional and that states will need to consider alternative sources of money …

Accommodation Clients, Douglas R. Richmond

Akron Law Review

Accommodation clients typically are the creation of lawyers facing possible disqualification in litigation, although professional discipline and malpractice liability may also be concerns. They are also the creation of courts who believe that slavish adherence to conflict of interest rules sometimes produces unfair results in disqualification disputes. Ethics rules do not distinguish between “primary” clients and accommodation clients. Clients are clients. Or are they?

What Should Law School Student Conduct Codes Do?, Steven K. Berenson

Akron Law Review

Adopting a regulatory function as the primary goal of a law school code seems appropriate. In light of that goal, this article next attempted to present the broad outlines of a code that would serve that goal. Such a code would provide for an initial investigatory phase regarding alleged code violations, with students playing the key role in this and subsequent phases of the process under the code, in order to determine that only meritorious allegations be pursued...Perhaps in light of the possible objectives of a law school code discussed in the beginning of this article, the ultimate objectives advocated …

Should Attorneys Have A Duty To Report Financial Abuse Of The Elderly?, Carolyn L. Dessin

Akron Law Review

This Article will therefore put the efficacy issue aside and focus on whether an attorney can and should report suspected abuse under a mandatory reporting statute. Part Two of this article will examine the various states’ approaches to mandatory reporting of abuse. Part Three will explore the various states’ rules governing attorney conduct. Part Four will analyze the interaction of the mandatory reporting provisions with the rules governing attorney conduct. Finally, Part Five will discuss whether requiring attorneys to report suspected elder abuse is desirable.

The Clash Of Legal Cultures: The Treatment Of Indigenous Law In Colonial And Post-Colonial Africa, Justice Modibo Ocran

Akron Law Review

The judiciary and legislature need to adapt African indigenous law to make it a tool of socio-economic development without sacrificing the core values of African society: the values of fellowship, of being each other’s keeper, and the notion that the free development of each is indeed a condition for the free development of all. The modern African judge will be the first to acknowledge that, in many senses, the problems faced by the British judges in colonial Africa have not vanished. Almost one hundred percent of the African judiciary is now African. But even though there is no longer the …

Why Lawyers Are Different And Why We Are The Same: Creating Structural Incentives In Large Law Firms To Promote Ethical Behavior - In-House Ethics Counsel, Bill Padding, And In-House Ethics Training, Ronald D. Rotunda

Akron Law Review

In many ways, lawyers are different than other people. In other ways, we are, sadly, so much the same. What we often call “legal ethics” or “professional responsibility” is the law governing the practice of law. This law serves to make us different, but our compliance with it struggles against the fact that we are not born different: we struggle with the same demons as other mortals, and like them, we learn to rationalize our failings. And, when we believe that no one is looking, when we are anonymous, we are more likely to rationalize. The structure of the large, …

The Prioritization Of Criminal Over Civil Counsel And The Discounted Danger Of Private Power, Kathryn A. Sabbeth

Florida State University Law Review

This Article seeks to make two contributions to the literature on the role of counsel. First, it brings together civil Gideon research and recent studies of collateral consequences. Like criminal convictions, civil judgments result in far-reaching collateral consequences, and these should be included in any evaluation of the private interests that civil lawyers protect. Second, this Article argues that the prioritization of criminal defense counsel over civil counsel reflects a mistaken view of lawyers’ primary role as a shield against government power. Lawyers also serve a vital role in checking the power of private actors. As private actors increasingly take …

Not The City Of God: The Multiplicity Of Wrongs And Rules, Geoffrey C. Hazard Jr.

Akron Law Review

The message I seek to transmit is a cautionary observation, perhaps a complaint, about prevailing method of analysis of ethical issues, including the subcategory of ethics that consists of law. The prevailing method is patterned on the experimental technique in scientific analysis. I want to suggest that the method is inadequate for dealing satisfactorily with real world ethical and legal problems, and indeed can distort analysis and often lead to unsound conclusions.

Professional Responsibility In An Uncertain Profession: Legal Ethics In China, Judith A. Mcmorrow

Akron Law Review

This essay starts with two simple questions: Why do law schools in China have so little discussion of legal ethics? Why do students not press or seek more discussion of this topic? The essay then looks at the creation of norms of legal ethics from a topdown perspective and the inadequacy of that approach. Both a bottomup and top-down examination identify the tremendous challenges facing the Chinese emerging legal culture in building a coherent model of lawyering that can serve as the foundation for a system of legal ethics. This essay is intended as a contribution to the growing English …

Electronic Data, Electronic Searching, Inadvertent Production Of Privileged Data: A Perfect Storm, Donald Wochna

Akron Law Review

This article suggests that the practical impact of treating electronic searching as an expert function is to permit attorneys to focus and strategize on the process of electronic searching rather than on the completeness of document production. In effect, electronic searching permits attorneys to quit focusing on finding documents and begin focusing on identifying electronic sources of information on which reside relevant documents that can be extracted by means of electronic searching protocols.

Supervising Offshore Outsourcing Of Legal Services In A Global Environment: Re-Examining Current Ethical Standards, Mark L. Tuft

Akron Law Review

There are many forms of legal outsourcing that range from outsourcing administrative and support functions to outsourcing legal and law-related services domestically and abroad to ―offshoring,‖ in which a firm relocates certain legal and law-related services to a foreign jurisdiction that allows the firm to realize greater efficiency and lower costs. The question is whether a distinction between the duty of supervision over the work of foreign lawyers and domestic lawyers will continue to be valid in the changing global legal environment and whether the ethical obligations under the current rules for partners, managers, and supervisory lawyers in the traditional …

Inside, Outside: Cross-Border Enforcement Of Attorney Advertising Restrictions, Margaret Raymond

Akron Law Review

The question that motivated this paper was three-fold: whether states can regulate this type of cross-border advertising, whether they do, and whether they should...If a state wants to regulate advertising, it wants to regulate all advertising that the state‘s consumers will see, regardless of where it originated or where the lawyers who engaged in it are admitted to practice. Enforcement accordingly advances the interests that are assertedly served by attorney advertising restrictions. A failure to enforce restrictive rules against out-of-state lawyers, by contrast, has a somewhat counterintuitive result.

The Legal Ethics Of Metadata Mining, Andrew M. Perlman

Akron Law Review

Bar associations have produced a number of legal ethics opinions that address the practice of metadata mining. This essay explains the nature of the problem, reviews the ethics opinions that have addressed it, and contends that the issue is simply a variation of the oft-examined problem of inadvertently disclosed documents. The essay concludes that flat bans on metadata mining are misguided and that metadata mining should be treated in the same manner as inadvertent disclosures more generally. Under this approach, if a state permits lawyers to review inadvertently disclosed privileged documents, the jurisdiction should also permit lawyers to review the …

Exporting American Legal Ethics, James E. Moliterno

Akron Law Review

Over the past decade or so, a massive exportation of U.S. lawyer ethics law, primarily to emerging democracies, has been taking place. The exportation has been managed largely, but not exclusively, by ABA Rule of Law programs, funded extensively by grants from USAID. Excellent work is being done by these programs and nothing in this essay should be read to suggest that these projects lack value. But in one respect, the work of these and other such projects is sometimes tinged with cultural imperialism...The large-scale adoption of U.S. models of lawyer and judge regulation outside the United States is likely …

Multijurisdictional Practice And The Influence Of Model Rule Of Professional Conduct 5.5 - An Interim Assessment, Arthur F. Greenbaum

Akron Law Review

In this piece I examine the influence of Model Rule 5.5 on the law of multijurisdictional practice in the states by lawyers licensed in the United States who are not working in-house for an organizational client. In doing so, I do not intend to revisit the debate on what lines should be drawn, if any, to control multijurisdictional practice. Those issues have been well debated in the adoption of the Restatement (Third) of the Law Governing Lawyers, the deliberations of the Commission on Multijurisdictional Practice,15 consideration surrounding state implementation initiatives, and voluminous commentary. Instead, I want to explore the impact …

Ethical Responsibility And Legal Liability Of Lawyers For Failure To Institute Or Monitor Litigation Holds, Nathan M. Crystal

Akron Law Review

The ethical and legal basis for subjecting counsel to discipline or liability for failing to initiate or implement litigation holds in connection with ESI exists. Recent important cases, while not imposing discipline or liability on counsel, have continued to lay the ground work for such liability. ...Cases in which counsel are held liable for damages to their clients or subject to discipline for failing to comply with well established ESI discovery obligations will not be long in coming as the new approach to winning litigation through discovery continues to develop.