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Legal Ethics and Professional Responsibility Commons™
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Articles 31 - 60 of 443
Full-Text Articles in Legal Ethics and Professional Responsibility
Online Legal Advice: Ethics In The Digital Age, Paige A. Thomas
Online Legal Advice: Ethics In The Digital Age, Paige A. Thomas
St. Mary's Journal on Legal Malpractice & Ethics
The rise of the Internet changed the way initial interactions between lawyers and prospective clients happen. Unfortunately, a host of problems concerning privacy rights and consumer usage have emerged. In this digital age, where immediacy and response time are driving factors in an attorney’s online presence, the approach to establish an attorney-client relationship is far more informal. Due to the quick rise of the Internet and social media, the Model Rules of Professional Conduct do not offer a clear answer for attorneys using social media. An inherent danger lies in off-the-cuff remarks, made on the Internet—a platform generally associated with …
Characterizing Ghostwriting., Debra Lyn Bassett
Characterizing Ghostwriting., Debra Lyn Bassett
St. Mary's Journal on Legal Malpractice & Ethics
It is well known that legal services are costly and that existing pro bono services are inadequate to help every individual who would benefit from legal assistance. Compounding this unmet need are various restrictions on the types of clients and types of cases that qualify for pro bono services. For example, Legal Services Corporation lawyers may not represent undocumented individuals, and may not undertake a representation in an abortion, desegregation, or assisted suicide matter. One attempt to mitigate this unmet need is ghostwriting. Analogous to presidential speechwriting, ghostwriting in the legal context occurs when a lawyer drafts a pleading or …
The Agony Of Modern Legal Ethics, 1970-1985., Michael Ariens
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 …
“Nudging” Better Lawyer Behavior: Using Default Rules And Incentives To Change Behavior In Law Firms, Nancy B. Rapoport
“Nudging” Better Lawyer Behavior: Using Default Rules And Incentives To Change Behavior In Law Firms, Nancy B. Rapoport
St. Mary's Journal on Legal Malpractice & Ethics
In the changing landscape of law practice—where law firm profits are threatened by such changes as increased pressure from clients to economize and the concomitant opportunities for clients to shop around for the most efficient lawyers—are there ways to change how things are done in law firms so that firms can provide more efficient and ethical service? This article suggests that an understanding of cognitive biases and basic behavioral economics will help law firms tweak their incentives and default rules to promote the improved delivery of legal services.
The Role Of Ethics Audits In Improving Management Systems And Practices: An Empirical Examination Of Management-Based Regulation Of Law Firms, Susan Saab Fortney
The Role Of Ethics Audits In Improving Management Systems And Practices: An Empirical Examination Of Management-Based Regulation Of Law Firms, Susan Saab Fortney
St. Mary's Journal on Legal Malpractice & Ethics
For decades, legal malpractice experts have urged lawyers to implement risk management measures. To assist law firms in doing so, legal malpractice insurers have provided audit services and self-audit materials. Under the Australian regulatory regime, incorporated legal practices are required to complete a self-assessment process and to report on the firm’s compliance with ten objectives of sound law practice. Using management-based principles, this Article discusses steps to take to encourage ethics audits “to merge good ethics and good business” in the U.S.
Avoid Being A Defendant: Estate Planning Malpractice And Ethical Concerns., Gerry W. Beyer
Avoid Being A Defendant: Estate Planning Malpractice And Ethical Concerns., Gerry W. Beyer
St. Mary's Journal on Legal Malpractice & Ethics
An estate planner may become a defendant in a case involving an estate he or she planned in two main ways. First, the attorney may have performed his or her services in a negligent manner potentially creating exposure to malpractice liability. Second, the attorney's conduct may have lapsed below ethically acceptable standards. This Article reviews the exposure an estate planner may have to malpractice liability with emphasis on Texas law and then focuses the reader's attention on ethical issues that may arise while preparing or executing the plan. The author hopes that by pointing out potentially troublesome areas, the reader …
How Do You Rate Your Lawyer? Lawyers’ Responses To Online Reviews Of Their Services, Laurel A. Rigertas
How Do You Rate Your Lawyer? Lawyers’ Responses To Online Reviews Of Their Services, Laurel A. Rigertas
St. Mary's Journal on Legal Malpractice & Ethics
With the proliferation of opportunities for consumers to review a variety of services on the Internet, it is only a matter of time until more clients review their attorneys’ services on the Internet. This raises a variety of potential ethical and public policy issues. First, what can attorneys do to try to control their online reputations? Second, if a client posts negative comments about an attorney’s services on a public Internet forum, can the attorney respond on that forum without breaching the duty of confidentiality and, if so, how? Finally, when settling a dispute with a client, may an attorney …
Is Litigation Counsel Who Also Engages In Competitive Decision-Making Wrong For The Part?, David Hricik
Is Litigation Counsel Who Also Engages In Competitive Decision-Making Wrong For The Part?, David Hricik
St. Mary's Journal on Legal Malpractice & Ethics
In-house counsel wear different hats, and are often involved in business decisions regarding products, marketing, and other strategic issues. It was in this context that courts began to adopt protective orders that precluded in-house counsel who provided their clients advice with “competitive decision-making” from having access to information from a competitor disclosed in discovery. Prosecution bars present numerous issues for courts and counsel. It may be that because of prosecution counsel’s knowledge of the technology that her service as trial counsel would lead to cost savings and other benefits to her client. However, due to the myriad problems that arise …
Navigating The Pitfalls Of Implicit Bias: A Cognitive Science Primer For Civil Litigators, Nicole E. Negowetti
Navigating The Pitfalls Of Implicit Bias: A Cognitive Science Primer For Civil Litigators, Nicole E. Negowetti
St. Mary's Journal on Legal Malpractice & Ethics
Cognitive science has revealed that past experiences and prior assumptions, even those of which we are not conscious, greatly influence how humans perceive the world. Emerging research has demonstrated that attorneys and judges, like everyone else, are the products of their gender, ethnicity, race, and socioeconomic status. As a consequence, legal decision-making is susceptible to the subtle influences of implicit bias. Effective and ethical client advocacy requires an attorney to understand how her own implicit biases will affect her interactions with clients. An attorney should also acknowledge that implicit biases may affect a judge’s interpretation of her client’s story and …
Why Lawyers Do What They Do (When Behaving Ethically), James Moliterno, John Keyser
Why Lawyers Do What They Do (When Behaving Ethically), James Moliterno, John Keyser
St. Mary's Journal on Legal Malpractice & Ethics
Since the early 1990s, when David Wilkins published his influential paper “Who Should Govern Lawyers” in the Harvard Law Review, legal ethics scholars and professors have paid attention to the range of processes and devices that govern lawyer behavior. This Article will report on the results of a study currently underway that seeks to provide empirical evidence to answer the question posed in this Article’s title: Do lawyers train staff in confidentiality preservation because they fear bar discipline? Because they fear malpractice liability? Because they must comply with malpractice liability carrier demands? Because they honor client confidences for their own …
Mindful Ethics-A Pedagogical And Practical Approach To Teaching Legal Ethics, Developing Professional Identity, And Encouraging Civility, Jan L. Jacobowitz, Scott Rogers
Mindful Ethics-A Pedagogical And Practical Approach To Teaching Legal Ethics, Developing Professional Identity, And Encouraging Civility, Jan L. Jacobowitz, Scott Rogers
St. Mary's Journal on Legal Malpractice & Ethics
Aristotle spoke of virtue and ethics as a combination of practical wisdom and habituation—an individual must learn from the application of critical reasoning skills to experience. Perhaps one of the earliest proclamations of the value of experiential learning, the Aristotelian view, reappears throughout history and is captured once again by the Carnegie Foundation’s Report on Legal Education, which includes a call for instruction that provides practical skills and ethical grounding to complement the teaching of legal analysis. The Carnegie Report continues to play a role in the ongoing discussion of the need to reform legal education; a debate that is …
Disqualifying Defense Counsel: The Curse Of The Sixth Amendment, Keith Swisher
Disqualifying Defense Counsel: The Curse Of The Sixth Amendment, Keith Swisher
St. Mary's Journal on Legal Malpractice & Ethics
Lawyer disqualification—the process of ejecting a conflicted lawyer, firm, or agency from a case—is fairly routine and well-mapped in civil litigation. In criminal cases, however, there is an added ingredient: the Sixth Amendment. Gideon, which is celebrating its fiftieth anniversary, effectively added this ingredient to disqualification analysis involving indigent state defendants although it already existed in essence for both federal defendants and defendants with the wherewithal to retain counsel. Once a defendant is entitled to counsel, the many questions that follow include whether and to what extent conflicts of interest—or other misconduct—render that counsel constitutionally ineffective. Most cases and commentary …
The Texas Anti-Indemnity Act., Taylor R. Beaver
The Texas Anti-Indemnity Act., Taylor R. Beaver
St. Mary's Law Journal
Owners, general contractors, and subcontractors enter into agreements to ameliorate risk amongst those exercising control. Some of these include hold-harmless agreements, indemnity agreements, releases, and agreements conferring additional insured status to others. Typically, parties enjoy freedom to contract as they wish. Texas has long recognized, as a matter of public policy, a party’s right to draft contracts however it sees fit. Historically, risk-shifting agreements were enforceable if they passed the fair notice requirements, meaning the express negligence rule and the conspicuousness test. The trend in recent years, however, has been to limit exculpatory clauses. In 2011, the Texas Legislature effectively …
The Aftermath Of Mexico's Fuel-Theft Epidemic: Examining The Texas Black Market And The Conspiracy To Trade In Stolen Condensate., Luke B. Reinhart
The Aftermath Of Mexico's Fuel-Theft Epidemic: Examining The Texas Black Market And The Conspiracy To Trade In Stolen Condensate., Luke B. Reinhart
St. Mary's Law Journal
Organized crime has infiltrated the oil patch, creating a theft network with an annual value of $2–$4 billion. Over the past decade, Mexican drug cartels have plundered mass amounts of natural gas condensate produced by Petróleos Mexicanos (Pemex)—the governing Mexican agency for production and export of hydrocarbons. The Mexican government has not sat by idly. Pemex’s production losses have skyrocketed from $300 million, between 2006 and 2011, to an estimated $585 million in 2013 alone. Considering derivative costs associated with these thefts, Pemex’s annual losses reach into the billions. Diversified and driven by profits derived from the United States black …
The Decline Of Civil Jury Trials: A Positive Development, Myth, Or The End Of Justice As We Now Know It?, Xavier Rodriguez
The Decline Of Civil Jury Trials: A Positive Development, Myth, Or The End Of Justice As We Now Know It?, Xavier Rodriguez
St. Mary's Law Journal
Jury participation is helpful in many respects. It fosters an understanding of the third branch of government and the workings of the judicial system. It offers the opportunity for individuals to serve in a unique role: neutral factfinder. Moreover, in an age of declining voter participation, jury service provides individuals with the opportunity to directly participate in our governmental structure. Despite these positive attributes, jury trials as we knew them are on the decline. That may or may not be problematic, depending on what types of cases are being impacted. Where parties have reached a voluntary and informed settlement on …
Texas Remedies In Equity For Breach Of Fiduciary Duty: Disgorgement, Forfeiture, And Fracturing., George P. Roach
Texas Remedies In Equity For Breach Of Fiduciary Duty: Disgorgement, Forfeiture, And Fracturing., George P. Roach
St. Mary's Law Journal
The remedy of fee forfeiture against lawyer fiduciaries has been marginalized. Following Burrow v. Arce, Texas trial courts have frequently applied a no-fracturing rule that effectively bars a claim for breach of fiduciary duty against an attorney. Although the court in Burrow held actual damages were not a prerequisite for fee forfeiture, many Texas trial courts have not followed that precedent. Most Texas trial courts require the plaintiff to prove actual damages to survive a summary judgment motion. Others have openly asserted that not all legitimate claims for breach of fiduciary duty should be allowed as an alternative claim to …
The Dual Role Of A Chief Justice., Catherine Stone
The Dual Role Of A Chief Justice., Catherine Stone
St. Mary's Law Journal
Notwithstanding the growing trend of high-dollar judicial election campaigns, many citizens do not know what appellate judges and appellate courts do. Faced with the reality of obscurity and the ever-present potential of failed reelection campaigns, appellate judges work each day to fulfill the mission of appellate courts: to efficiently resolve the legal disputes presented in appeals from lower court decisions with written opinions that are well reasoned, thoroughly researched, and intellectually honest. It is the responsibility of the Chief Justice to promote that core mission with all justices on the court, thereby working to best serve the legal needs of …
A Guide To Properly Using And Responding To Requests For Admission Under The Texas Discovery Rules., Robert K. Wise, Katherine Hendler
A Guide To Properly Using And Responding To Requests For Admission Under The Texas Discovery Rules., Robert K. Wise, Katherine Hendler
St. Mary's Law Journal
This article’s purpose is to provide a guide for properly using and responding to requests for admission under the Texas discovery rules. Requests for admission are an extremely effective discovery tool when used and responded to properly. Their use can save litigants considerable time and expense by eliminating and narrowing the issues involved in the cause of action. Often misunderstood, requests for admission are perhaps the least used of the major discovery devices available to litigants. Even though requests for admission have the potential to eliminate unnecessary proof at trial, streamline discovery and motion practice, and reduce pretrial and trial …
The Extraterritorial Application Of The Fifth Amendment: A Need For Expanded Constitutional Protections., Guinevere E. Moore, Robert T. Moore
The Extraterritorial Application Of The Fifth Amendment: A Need For Expanded Constitutional Protections., Guinevere E. Moore, Robert T. Moore
St. Mary's Law Journal
Since 2010, there have been forty-three cases—and ten deaths—involving the use of deadly force by United States agents against Mexican nationals along the border. Currently, the official policy is that officers may still use deadly force where they “reasonably believe”—based upon the totality of the circumstances—that they are in “imminent danger” of death or serious injury. Officers were found reasonable in using deadly force in situations as mundane as young boys throwing rocks. In light of these actions, the Mexican government has raised serious concerns about the disproportionate use of force by United States agents. The question now raised is …
Taxation Of Series Llcs In Texas: Bigger Isn't Always Better In The Lone Star State., Alyson Outenreath
Taxation Of Series Llcs In Texas: Bigger Isn't Always Better In The Lone Star State., Alyson Outenreath
St. Mary's Law Journal
Series Limited Liability Companies (series LLCs) are not yet widely popular as an entity of choice; but just as it took many years for traditional LLCs to become widely used, there could also come a day when series LLCs are the “go-to” entity of choice. One development in the law that will aid in this process is greater certainty in state taxation of series LLCs. Texas has provided some guidance with respect to the taxation of series LLCs for Texas franchise tax purposes after the comptroller’s issuance of Comptroller Private Letter Ruling 201005184L. In this ruling, the comptroller concluded that …
“Payability” As The Logical Corollary To “Collectibility” In Legal Malpractice, Daniel D. Tostrud
“Payability” As The Logical Corollary To “Collectibility” In Legal Malpractice, Daniel D. Tostrud
St. Mary's Journal on Legal Malpractice & Ethics
The collectibility requirement as part of the legal malpractice plaintiff’s affirmative case is well-established and regarded by most courts as a critical part of the plaintiff’s proof of proximate causation. Conversely, where the legal malpractice plaintiff was the defendant in the underlying lawsuit, to be successful in the malpractice suit, the plaintiff must prove that it had a meritorious defense that would have made a difference to the outcome of the case had the lawyer properly asserted and pursued the defense. Prompted by the conflicting opinions of two federal courts on this issue, courts have begun to discuss whether the …
The Qualified Privilege Of Texas Lawyers To Defend Their Reputations., Clement J. Hayes
The Qualified Privilege Of Texas Lawyers To Defend Their Reputations., Clement J. Hayes
St. Mary's Journal on Legal Malpractice & Ethics
The technology-based society of the twenty-first century offers vast Internet resources that afford individuals easy access to information and means of communication. As a result, people spend substantial time online. Some Internet sites, such as Facebook, Twitter, Yelp, Angie's List and Google, provide consumers an online forum for sharing experiences and opinions. This development, while in many respects beneficial, is not without its drawbacks.
A Professional (Lack Of) Courtesy: The Emergence Of Expert Testimony In Legal And Medical Malpractice Cases., Jeffrey I.H. Soffer
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.
The Accidental Lawyer: A Law And Economics Perspective Of Inadvertent Waiver., Ido Baum
The Accidental Lawyer: A Law And Economics Perspective Of Inadvertent Waiver., Ido Baum
St. Mary's Journal on Legal Malpractice & Ethics
The inadvertent waiver doctrine is part of the attorney-client privilege but its application lacks uniformity and thus is a major cause for distress for lawyers and clients. The concerns about an inadvertent waiver of the privilege intensify as technology changes the way attorneys and clients interact. Accordingly, seeking legal advice has become a dangerous activity. This Article first demonstrates that courts treat inadvertent waiver as a type of accident without duly attending to the implications of the concept. Drawing on economic analysis of tort law, this Article identifies how the liability regimes and unique harm rules applied by courts to …
The Limited Power Of The Bar To Protect Its Monopoly., Zachary C. Zurek
The Limited Power Of The Bar To Protect Its Monopoly., Zachary C. Zurek
St. Mary's Journal on Legal Malpractice & Ethics
The weaknesses within unauthorized practice of law (UPL) laws, coupled with shaky and fragmented enforcement, allow nonlawyers to perform activities that are otherwise characterized as the practice of law. Certified Public Accountants (CPAs), non-lawyers representing individuals in administrative settings, legal document preparation services, and other non-lawyers offering detailed legal advice pose serious threats to the bar and the individuals they serve. Uniformed standards of liability, ethics, and certification should be developed to ensure a balanced group of practitioners is available to the public. Pulling nonlawyers into the realm of liability for breach of professional responsibility would result in a higher …
“A Scout Is Trustworthy”: Applying Virtue Ethics To Lawyer Professionalism., Jeff Brown
“A Scout Is Trustworthy”: Applying Virtue Ethics To Lawyer Professionalism., Jeff Brown
St. Mary's Journal on Legal Malpractice & Ethics
This Article advocates the employment of the twelve-point Scout Law of the Boy Scouts of America as a professional ethics guide for lawyers. The Article begins by briefly relating the history of virtue ethics as a philosophical field of study and comparing and contrasting it with rule-based ethics. The Article continues with a brief history of the Scout Law. Finally, the Article explores how each of the twelve points of the Scout Law identifies a virtue relevant to the practice of law and how seeking to adhere to these virtues is crucial for attorneys hoping to lead a life of …
The Litigation Privilege In Texas., Sam Johnson
The Litigation Privilege In Texas., Sam Johnson
St. Mary's Journal on Legal Malpractice & Ethics
Certain Texas cases have arisen where one party in litigation sues the attorney representing an opposing party. In response to such cases, Texas courts promulgated a judicial doctrine generally referred to as the litigation privilege or qualified immunity in order to protect litigants’ right to zealous representation from their attorney. The general rule is that one party to a lawsuit cannot sue the other party’s attorney. However, exceptions to this doctrine exist. This article explores the contours of the litigation privilege in Texas by analyzing the primary Texas cases where one party’s claim against the opposing party’s attorney was dismissed …
Arbitration Clauses In Fee Retainer Agreements., Chrissy L. Schwennsen
Arbitration Clauses In Fee Retainer Agreements., Chrissy L. Schwennsen
St. Mary's Journal on Legal Malpractice & Ethics
Due to the variety of approaches jurisdictions employ when determining the legal ramifications of arbitration clauses in fee retainer agreements, it’s best to include an explanation of the legal consequences of arbitration in the agreements. The attorney can, and should, fully explain the potential benefits of arbitration to clients. State courts take various viewpoints on the issue, and most stand contrary to the position of the American Bar Association (ABA) and state ethics committees on the subject. Consequently, attorneys must disclose truthful and accurate information regarding arbitration agreements when engaged in multijurisdictional practice in order to ensure protection from malpractice …
Can Federal Courts Exercise Jurisdiction Over State Law Malpractice Claims Arising Out Of Patent Law Disputes?, Isaac C. Ta
Can Federal Courts Exercise Jurisdiction Over State Law Malpractice Claims Arising Out Of Patent Law Disputes?, Isaac C. Ta
St. Mary's Journal on Legal Malpractice & Ethics
Under 28 U.S.C. § 1338, federal courts generally have original jurisdiction over cases arising under federal civil law. Specifically, under 28 U.S.C. § 1338(a), federal courts have jurisdiction over cases brought under federal patent laws. As with any legal proceeding, the potential for legal malpractice as it relates to patent issues (e.g., proper patent filing) is very real. However, unlike patent law proceedings, legal malpractice is governed by state law.' When the two causes of action are intertwined, federal and state courts are presented with the issue of which court possesses proper jurisdiction. Some argue federal courts can properly exercise …
Guilt By Association: How “Standby Co-Counsel” Exposes Attorneys To Malicious Prosecution Liability., Colleen V. Lisowski
Guilt By Association: How “Standby Co-Counsel” Exposes Attorneys To Malicious Prosecution Liability., Colleen V. Lisowski
St. Mary's Journal on Legal Malpractice & Ethics
Attorneys should not assume that lending their name to a case is a risk-free practice. The California appellate decision, Cole v. Patricia A. Meyer & Associates, answered the question of whether non-participating, standby co-counsel could be held liable for malicious prosecution by merely being listed as counsel of record. Cole established the clear message behind being aware of “co-counsel” risks. According to the court, co-counsel cannot escape liability if they failed to know enough about the case. By rejecting the “passive counsel” defense, Cole held that associated attorneys still have a duty to research the validity of a case even …