Legal Ethics and Professional Responsibility Commons^™

A Little Known History Of Truth, Steven H. Goldberg

Elisabeth Haub School of Law Faculty Publications

This was written in response to a call from the W.M. Keck Foundation for essays on the topic: To what extent should the ethical responsibilities of a lawyer in civil litigation include the obligation to assist the judge or jury in arriving at the truth? I am grateful to the W.M. Keck Foundation for pressing the important dialogue about how our legal system and those who work in it ought to serve our society and for forcing me to think again about why we lawyers are who we are. It took me almost thirty years of trying cases, deaning, and …

Professional Preparedness: A Comparative Study Of Law Graduates' Perceived Readiness For Professional Ethics Issues, James E. Moliterno

Faculty Publications

No abstract provided.

New Insights On Waiver And The Inadvertent Disclosure Of Privileged Materials: Attorney Responsibility As The Governing Precept, Audrey Rogers

Elisabeth Haub School of Law Faculty Publications

This Article suggests that fostering the development of attorney responsibility should be the central goal in addressing the issues raised by the inadvertent disclosure. Deciding the waiver issue by concentrating on attorney responsibility will help prevent inadvertent disclosures (and resultant waivers) by impressing upon the attorney the need to take care to avoid them. When disclosures inadvertently occur, the amount of precautions the attorney took (albeit unsuccessfully) should determine whether the privilege is waived. Placing the onus of precautions against inadvertent disclosure on the attorney is not only beneficial to the client, but also aids the profession, and the overall …

Ethical Issues In Tax Practice, James P. Holden, Michael C. Durst

William & Mary Annual Tax Conference

No abstract provided.

An Introduction To The European Community's Legal Ethics Code - Part Ii: Applying The Ccbe Code Of Conduct, Laurel Terry

Faculty Scholarly Works

This article, which is Part 2 in a series, examines the CCBE Code of Conduct and continues where the prior article left off. See An Introduction to the European Community's Legal Ethics Code Part I: An Analysis of the CCBE Code of Conduct, 7 Georgetown J. of Legal Ethics 1 (1993). "CCBE" is the acronym used to describe the Council of the Bars and Law Societies of the European Community; the CCBE has been recognized as the official representative of the legal profession with the European Community. In 1988, the CCBE adopted a code of conduct that was intended to …

An Introduction To The European Community's Legal Ethics Code - Part I: An Analysis Of The Ccbe Code Of Conduct, Laurel Terry

Faculty Scholarly Works

This article, which is Part 1 of two articles, examines the CCBE Code of Conduct. CCBE is the acronym used to describe the Council of the Bars and Law Societies of the European Community; the CCBE has been recognized as the official representative of the legal profession with the European Community. In 1988, the CCBE adopted a code of conduct that was intended to apply to situations in which lawyers from one CCBE Member of Observer State were involved with lawyers from another CCBE State. This article summarizes the development of the CCBE Code of Conduct, explains who it applies …

A Moral Standard For The Prosecutor's Exercise Of The Charging Discretion, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

This Essay does not attempt to retrace the subject of prosecutorial discretion from the standpoint of the controlling factors, doctrinal limitations, or norms of conduct applicable to prosecutors generally. Rather, it addresses the charging process in a narrower compass. It poses three hypothetical cases that present both realistic and recurrent challenges to the prosecutor's charging power. The first case de pends on a factual determination of a witness's reliability; the second case depends on a factual determination of a witness's truthfulness; the third case revolves around not a factual determination but, rather, a legal determination regarding the applicability of a …

Federal Standards Of Tax Practice: "Preparer" Penalties And Circular 230, Gwen T. Handelman

William & Mary Annual Tax Conference

No abstract provided.

State Ethical Codes And Federal Practice: Emerging Conflicts And Suggestions For Reform, Stephen B. Burbank

All Faculty Scholarship

The standards for resolving putative conflicts between federal laws are not always clear, and neither for that matter is the standard for determining what constitutes a federal law capable of superseding effect. The technique of setting federal norms of professional conduct on a decentralized basis by borrowing or incorporating state norms is increasingly troublesome to the extent that the borrowed state norms are disuniform and that they are being put to multiple remedial purposes. Federal legislation preempting state law of professional conduct is conceivable but hardly likely, particularly as the norms are pressed into duty for purposes other than professional …

Dances With Nonlawyers: A New Perspective On Law Firm Diversification, Gary A. Munneke

Elisabeth Haub School of Law Faculty Publications

In this Article, Professor Munneke continues the debate over ethical rules governing lawyers' professional affiliations with nonlawyers, arguing in favor of the adoption of uniform rules that regulate lawyers' conduct in the context of specific ethical issues, such as confidentiality and conflicrs of interest. In Professor Munneke's view, the retention of ethical rules that prohibit law firm diversification impedes the ability of lawyers to compete effectively in today's rapidly changing marketplace of professional services.

Professor Munneke moreover questions whether state bar association rules that prohibit law firm diversification are capable of withstanding judicial scrutiny under the federal antitrust laws and …

The Adversarial System At Risk, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

The most ominous recent development affecting the balance of forces in the adversary system is the unprecedented attack by prosecutors on criminal defense lawyers themselves. Grand jury subpoenas to attorneys, law office searches, disqualification motions, fee forfeiture proceedings, and, most recently, IRS attempts to enforce currency-reporting regulations do not seem to be isolated occurrences or mere happenstance. Rather, perhaps inspired by Shakespeare's injunction in Henry VI to "kill all the lawyers," some prosecutors appear to have concluded that the most effective way to prevail in the battle against crime is to cripple the defense lawyers, particularly those who represent defendants …

Client-Centered Counseling: Reappraisal And Refinement, Robert Dinerstein

Articles in Law Reviews & Other Academic Journals

No abstract provided.

The Lawyer's Duty To Keep Clients Informed: Establishing A Standard Of Care In Professional Liability Actions, Gary A. Munneke

Elisabeth Haub School of Law Faculty Publications

This Article will explore the problem of the attorney's duty to provide clients with adequate information to make informed decisions. It will discuss situations in which such a duty is appropriate, and suggest that a cause of action for informed consent must be limited to those fact patterns where courts have established the right of the client to make the decision. The analysis rejects establishment of a broad right of the client to control all aspects of the representation. The Article will first review the history of the development of professional liability law with particular emphasis on the medical profession, …

Heaven Help The Lawyer For A Civil Liar, Steven H. Goldberg

Elisabeth Haub School of Law Faculty Publications

In April of 1987, the American Bar Association's Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 87-353. Influenced by the problem of a criminal defendant's potential perjury, as discussed in Nix v. Whiteside, the Formal Opinion focuses on subsection 3.3(a)(2) of Model Rule 3.3, rather than on subsection 3.3(a)(4). As a result, the Opinion advises all lawyers — civil and criminal — who know that their clients will lie to the jury, to “disclose the client's intention to testify falsely to the tribunal,” unless they can withdraw from the representation or prohibit the prospective lie. It advises lawyers …

Current Issues In Professional Responsibility, James P. Holden

William & Mary Annual Tax Conference

No abstract provided.

The Former Client's Disqualification Gambit: A Bad Move In Pursuit Of An Ethical Anomaly, Steven H. Goldberg

Elisabeth Haub School of Law Faculty Publications

This Article contends that the successive conflict and imputed disqualification rules in combination are both bad law and bad ethics and that a different approach would be better for clients, for the adversary system, and for the profession. Part I of the Article analyzes the development of the successive conflict and the imputed disqualification doctrines. It demonstrates that two different, not always consistent, theories caused the successive conflict disqualification principles to develop erratically, resulting in a set of rules incompatible with either supporting rationale. Part II explains why the incorporation of that set of rules into the Model Rules of …

Attorney Loyalty And Client Perjury - A Postscript To Nix V. Whiteside, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

How much, if at all, can a criminal defense lawyer cooperate in his or her client's decision to commit perjury? Courts, commentators, and bar committees have grappled with this question for years without offering clear or consistent guidelines. Any principled response must take into account some very hard questions. Under what circumstances, for instance, does the lawyer ever really "know" that his client's proposed testimony is false? Is it sufficient if the lawyer simply disbelieves his client's story, or that of his client's witnesses? Does it make any difference if the attorney learns of a plan to perjure during the …

Confidentiality And The "Dangerous" Patient: Implications Of Tarasoff For Psychiatrists And Lawyers, Vanessa Merton

Elisabeth Haub School of Law Faculty Publications

This essay examines the role conflict of the professional whose patient or client may be “dangerous” to others, and the ways in which professional standards of ethics and practice, incorporated by judicial ruling, contribute to that role conflict. The paper's focus is on the plight of the psychiatrist, but it also addresses the strain felt by the lawyer who either represents such a client or is asked to advise a psychiatrist who has such a patient. It suggests that health-care providers are not altogether justified in assigning sole responsibility for some of their professional difficulties to the law's incursions on …

Lawyer Advertising And The First Amendment, Lori B. Andrews

All Faculty Scholarship

No abstract provided.

Regulation Of Lawyer Advertising: In The Public Interest? (With R.P. Brosnahan), Lori B. Andrews

All Faculty Scholarship

No abstract provided.

The Civil And Criminal Liability Of Tax Advisors, Meyer Rothwacks

William & Mary Annual Tax Conference

No abstract provided.

Appellate Court Articulation Of General Standards Of Conduct: Effective Guidance Versus Impotent Verbalism, Arthur W. Phelps

Faculty Publications

No abstract provided.