Legal Ethics and Professional Responsibility Commons^™

Legal Ethics For Government Lawyers: Confronting Doctrinal Gaps, Andrew Martin

Articles, Book Chapters, & Popular Press

Despite the recent growth in the Canadian literature on legal ethics for government lawyers, the leading conceptual models have yet to be applied to resolve many of the most important legal questions facing government lawyers. In this article, I identify four key situations where the obligations of government lawyers as lawyers appear to clash with their obligations as public servants. I provide both a doctrinal analysis of how the current law applies in those situations and proposals for how the law can be clarified and improved. This analysis both provides much needed guidance to government lawyers and promotes a greater …

Reasoning About Faith: On The Religious Lawyer, Rakesh K. Anand

FIU Law Review

The religious lawyer is an individual who understands his or her religious practice to be a way of life and who, within the context of a commitment to his or her religious practice as such, takes up the professional practice of law. Unquestionably, this individual is worthy of our respect, given the seriousness with which the individual approaches his or her faith. At the same time, it is precisely this seriousness that points us in a direction that is perhaps difficult for many to go. Specifically, because a way of life represents a total activity of the self from which …

The Incorporation Of Government Lawyering In The Teaching Of Legal Ethics In Canadian Law Schools, Andrew Martin, Leslie Walden

Articles, Book Chapters, & Popular Press

Government lawyers, and the specific legal ethics issues that arise in their practices, remain largely overlooked in Canadian legal education. The authors argue that government lawyering should be better incorporated into legal ethics curricula in law schools, for both practical and conceptual reasons. Most importantly, understanding issues unique to government lawyering helps students better understand core concepts in legal ethics, and thus better prepare for the practice of law both in the public and private sectors. While law teachers face serious challenges in incorporating government lawyering into legal ethics education, many of those challenges can be confronted and ameliorated. The …

From Attorney General To Backbencher Or Opposition Legislator: The Lawyer’S Continuing Duty Of Confidentiality To The Former Client, Andrew Martin

Articles, Book Chapters, & Popular Press

This note uses a recent incident from Manitoba to reflect on the professional duty of confidentiality owed to the Crown by a former Attorney General as lawyer. The duty of confidentiality survives the lawyer-client relationship. As a fiduciary, the lawyer cannot disclose or use the client’s confidential information for her own benefit or the benefit of a third party, or against the client. These obligations constrain the former Attorney General in her conduct as an opposition legislator and suggest that she should not accept an appointment as Justice critic for her caucus. While parliamentary privilege protects the former Attorney General …

The Fiduciary Obligations Of Public Officials, Vincent R. Johnson

St. Mary's Journal on Legal Malpractice & Ethics

At various levels of government, the conduct of public officials is often regulated by ethical standards laid down by legislative enactments, such as federal or state statutes or municipal ordinances. These rules of government ethics are important landmarks in the field of law that defines the legal and ethical obligations of public officials. Such provisions can form the basis for the kinds of government ethics training that helps to minimize wrongful conduct by public servants and reduces the risk that the performance of official duties will be clouded by appearances of impropriety. Codified government ethics rules also frequently provide mechanisms …

Solving Ethical Puzzles To Unlock University Technology Transfer Client Work For An Intellectual Property Legal Clinic, Cynthia L. Dahl

All Faculty Scholarship

Intellectual property (IP) and technology legal clinics are experiencing an unprecedented surge in popularity. Before 2000 there were only five such clinics, but by 2016 there were seventy-four, with fifty added since 2010 alone. As law schools are approving new IP clinics and as practitioners are developing syllabi, there is an increasing need to share knowledge about models that work and how to avoid pitfalls.

One potentially fertile – but traditionally underutilized -- source of client work for an IP and technology clinic is the university technology transfer office (“TTO”), the department that protects, markets, and licenses all university intellectual …

Gideon And The Effective Assistance Of Counsel: The Rhetoric And The Reality, David Rudovsky

All Faculty Scholarship

There is general agreement that the “promise” of Gideon has been systematically denied to large numbers of criminal defendants. In some cases, no counsel is provided; in many others, excessive caseloads and lack of resources prevent appointed counsel from providing effective assistance. Public defenders are forced to violate their ethical obligations by excessive case assignments that make it impossible for them to practice law in accordance with professional standards, to say nothing of Sixth Amendment commands. This worsening situation is caused by the failure of governmental bodies to properly fund indigent defense services and by the refusal of courts to …

Lawyers As Quasi-Public Actors, W. Bradley Wendel

Cornell Law Faculty Publications

This paper was written for a panel on access to justice at the 100th anniversary conference of the Law Society of Alberta, Canada. In it I argue that the debate over access to justice, which in the United States generally means pro bono representation provided by individual lawyers, cannot be divorced from broader theoretical debates about the lawyer's role. My claim is that lawyers are quasi-public actors, in the sense that they have some responsibility to aim directly at justice in their representation of clients, and cannot rely only on indirect strategies to ensure that justice is served. The argument …

Lawfare And Legal Ethics In Guantánamo, David Luban

Georgetown Law Faculty Publications and Other Works

This paper, part of a symposium on the legal profession, focuses on the lawyers – some civilian and some military – who represent detainees at Guantánamo Bay. These include civilian counsel representing Guantánamo prisoners in habeas proceedings, as well as civilian and military defense counsel for those facing trial before military commissions. Using published sources as well as interviews with some of the lawyers, the paper examines the tactics by which the U.S. government has tried to disrupt the effective representation of Guantánamo detainees. In the case of habeas lawyers, whose very presence at Guantánamo is unwelcome by the government, …