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Articles 1 - 30 of 141
Full-Text Articles in Legal Profession
The Lawyer's Duty Of Competence In A Climate-Imperiled World, John C. Dernbach, Irma S. Russell, Matthew Bogoshian
The Lawyer's Duty Of Competence In A Climate-Imperiled World, John C. Dernbach, Irma S. Russell, Matthew Bogoshian
Faculty Works
The United States has more than 1.3 million practicing lawyers. Under Model Rule 1.1 of the ABA Model Rules of Professional Conduct and every state’s rules of conduct, each of these lawyers owes clients competent representation. Under the rule, “[c]ompetent representation requires the knowledge, skill, thoroughness and preparation reasonably necessary for the services.” While law and rules will undoubtedly change in response to the climate crisis, the duty of competence does not await such change or legal reform. The ubiquitous nature of the duty of competence means it is applicable to each lawyer now and will continue to evolve as …
Mandatory Anti-Bias Cle: A Serious Problem Deserves A More Meaningful Response, Rima Sirota
Mandatory Anti-Bias Cle: A Serious Problem Deserves A More Meaningful Response, Rima Sirota
Georgetown Law Faculty Publications and Other Works
This essay addresses the problematic convergence of two recent trends: (1) the expansion of jurisdictions requiring anti-bias training (ABT) as part of mandatory continuing legal education (CLE), and (2) the growing recognition among social scientists that such training, at least as currently practiced, is of limited effectiveness.
Forty-six American states require continuing legal education (CLE), and eleven of these states now require lawyer ABT as one facet of CLE requirements. I have previously criticized the mandatory CLE system because so little evidence supports the conclusion that it results in more competent lawyers. The central question tackled by this essay is …
John Osborn's Enduring Words On Law & Learning, Walter Effross
John Osborn's Enduring Words On Law & Learning, Walter Effross
Popular Media
When I started my first year at Harvard Law School, 17 years after Osborn did, I wasn’t looking for enlightenment. But I expected to be — and was — intimidated by Socratic taskmasters who, like the movie version of Osborn’s Professor Kingsfield (a role for which John Houseman won an Academy Award and a Golden Globe Award in 1973), were ready with “always another question, another question to follow your answer.”
Trauma-Informed (As A Matter Of) Course, Natalie Netzel
Trauma-Informed (As A Matter Of) Course, Natalie Netzel
American University Journal of Gender, Social Policy & the Law
Law students are impacted by trauma and law professors are in a position to help by adopting a trauma-informed approach as a matter of universal precaution. The 2021 Survey of Law Student Well-Being (“SLSWB”) revealed that over twenty percent of responding law students meet criteria that indicate they should be evaluated for post-traumatic stress disorder (“PTSD”). The study also revealed that almost fifty percent of responding students reported an important motivation for attending law school was experiencing a trauma or injustice. Put differently, law schools are full of law students who have experienced trauma, many of whom are actively struggling …
Unsettling Human Rights Clinical Pedagogy And Practice In Settler Colonial Contexts, Jocelyn Getgen Kestenbaum, Caroline Bishop Laporte
Unsettling Human Rights Clinical Pedagogy And Practice In Settler Colonial Contexts, Jocelyn Getgen Kestenbaum, Caroline Bishop Laporte
American University Journal of Gender, Social Policy & the Law
In settler colonial contexts, law and educational institutions operate as structures of oppression, extraction, erasure, disempowerment, and continuing violence against colonized peoples. Consequently, clinical legal advocacy often can reinforce coloniality—the logic that perpetuates structural violence against individuals and groups resisting colonization and struggling for survival as peoples. Critical legal theory, including Third World Approaches to International Law (“TWAIL”), has long exposed colonial laws and practices that entrench discriminatory, racialized power structures and prevent transformative international human rights advocacy. Understanding and responding to these critiques can assist in decolonizing international human rights clinical law teaching and practice but is insufficient in …
Lawyers As Caregivers, Paula Schaefer
Lawyers As Caregivers, Paula Schaefer
St. Mary's Journal on Legal Malpractice & Ethics
This Article argues that clients—much like patients in a healthcare setting—need their lawyers to be caregivers. The Article opens by developing a definition of caregiving in medicine and law. It then turns to five key components of caregiving in medicine, explaining the substantial research that this care is crucial for patient satisfaction, trust, and healing. Medical educators have drawn on this research to better prepare medical professionals to be excellent caregivers. The Article then explores the evidence that an attorney’s clients have the same needs and suffer similar harm when attorneys fail to meet these needs. Next, the Article turns …
Protecting The Guild Or Protecting The Public? Bar Exams And The Diploma Privilege, Milan Markovic
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 …
Aba Model Rule 8.4(G), Discriminatory Speech, And The First Amendment, Bruce Green, Rebecca Roiphe
Aba Model Rule 8.4(G), Discriminatory Speech, And The First Amendment, Bruce Green, Rebecca Roiphe
Articles & Chapters
The ABA adopted Model Rule 8.4(g), which targets certain speech and conduct that are based on “race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.” In particular, according to the accompanying comment, Rule 8.4(g) reaches speech that is “derogatory and demeaning” or that “manifests bias or prejudice towards others” and is “harmful” (including, presumably, emotionally harmful). This rule targets a significant amount of speech that would be constitutionally protected if it were uttered by a nonlawyer. This article argues that there is no justification for treating lawyers differently from others in many …
Ethical Limits On Promising To Pay An Adverse Award Of Attorney’S Fees Against One’S Client, Chase C. Parsons
Ethical Limits On Promising To Pay An Adverse Award Of Attorney’S Fees Against One’S Client, Chase C. Parsons
St. Mary's Journal on Legal Malpractice & Ethics
Abstract forthcoming.
The Appearance Of Appearances, Michael Ariens
The Appearance Of Appearances, Michael Ariens
Faculty Articles
The Framers argued judicial independence was necessary to the success of the American democratic experiment. Independence required judges possess and act with integrity. One aspect of judicial integrity was impartiality. Impartial judging was believed crucial to public confidence that the decisions issued by American courts followed the rule of law. Public confidence in judicial decision making promoted faith and belief in an independent judiciary. The greater the belief in the independent judiciary, the greater the chance of continued success of the republic.
During the nineteenth century, state constitutions, courts, and legislatures slowly expanded the instances in which a judge was …
The Overreach Of Limits On 'Legal Advice', Lauren Sudeall
The Overreach Of Limits On 'Legal Advice', Lauren Sudeall
Vanderbilt Law School Faculty Publications
Nonlawyers, including court personnel, are typically prohibited from providing legal advice. But definitions of “legal advice” are unnecessarily broad, creating confusion, disadvantaging self-represented litigants, and possibly raising due process concerns. This Essay argues for a narrower, more explicit definition of legal advice that advances, rather than undercuts, access to justice.
The Fall Of An American Lawyer, Michael Ariens
The Fall Of An American Lawyer, Michael Ariens
Faculty Articles
John Randall is the only former president of the American Bar Association to be disbarred. He wrote a will for a client, Lovell Myers, with whom Randall had been in business for over a quarter-century. The will left all of Myers’s property to Randall, and implicitly disinherited his only child, Marie Jensen. When Jensen learned of the existence of a will, she sued to set it aside. She later filed a complaint with the Iowa Committee on Professional Ethics and Conduct. That complaint was the catalyst leading to Randall’s disbarment.
Randall had acted grievously in serving as Lovell Myers’s attorney. …
Professional Responsibility, Legal Malpractice, Cybersecurity, And Cyber-Insurance In The Covid-19 Era, Ethan S. Burger
Professional Responsibility, Legal Malpractice, Cybersecurity, And Cyber-Insurance In The Covid-19 Era, Ethan S. Burger
St. Mary's Journal on Legal Malpractice & Ethics
In response to the COVID-19 outbreak, law firms conformed their activities to the Centers for Disease Control and Prevention (CDC), Occupational Safety and Health Administration (OSHA), and state health authority guidelines by immediately reducing the size of gatherings, encouraging social distancing, and mandating the use of protective gear. These changes necessitated the expansion of law firm remote operations, made possible by the increased adoption of technological tools to coordinate workflow and administrative tasks, communicate with clients, and engage with judicial and governmental bodies.
Law firms’ increased use of these technological tools for carrying out legal and administrative activities has implications …
Negative Commentary—Negative Consequences: Legal Ethics, Social Media, And The Impact Of Explosive Commentary, Jan L. Jacobowitz Ms.
Negative Commentary—Negative Consequences: Legal Ethics, Social Media, And The Impact Of Explosive Commentary, Jan L. Jacobowitz Ms.
St. Mary's Journal on Legal Malpractice & Ethics
Connecting and sharing on social media has opened communication channels and provided instantaneous information to billions of people worldwide. Commentary on current events, cases, and negative online reviews may be posted in an instant, often without pause or thought about the potential repercussions. This global phenomenon may not only provide news of the day updates, humor, and support for those in need but also is replete with ethical landmines for the unwary lawyer. Lawyers commenting on current events, their cases, or responding to a client’s negative online review, have suffered damage to their careers. In some instances, they have even …
Model Rule 8.4(G) And The Profession’S Core Values Problem, Michael Ariens
Model Rule 8.4(G) And The Profession’S Core Values Problem, Michael Ariens
St. Mary's Journal on Legal Malpractice & Ethics
Model Rule 8.4(g) declares it misconduct for a lawyer to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” The American Bar Association (ABA) adopted the rule in 2016 in large part to effectuate the third of its four mission goals: Eliminate Bias and Enhance Diversity. The ABA adopted these goals in 2008, and they continue to serve as ABA’s statement of its mission.
A …
“Listserv Lawyering”: Definition And Exploration Of Its Utility In Representation Of Consumer Debtors In Bankruptcy And In Law Practice Generally, Josiah M. Daniel Iii
“Listserv Lawyering”: Definition And Exploration Of Its Utility In Representation Of Consumer Debtors In Bankruptcy And In Law Practice Generally, Josiah M. Daniel Iii
St. Mary's Journal on Legal Malpractice & Ethics
The author examines the communications and activities of bankruptcy lawyers participating in the listserv of the Bankruptcy Law Section of the State Bar of Texas and finds that those activities constitute a previously unrecognized form of “lawyering,” which he has defined as the work of lawyers in and through the legal system to accomplish the objectives of their clients. Review of specific postings about legal issues and practical problems by Texas bankruptcy lawyers, whose practices are primarily on behalf of individual debtors in cases under Chapters 7 and 13 of the Bankruptcy Code, and observations about the voluntary, collaborative, and …
Punishing The Victim: Model Rule 1.16(A)(2) And Its Relation To Lawyers With Anxiety, Depression, And Bipolar Disorder, Daniel G. Esquivel
Punishing The Victim: Model Rule 1.16(A)(2) And Its Relation To Lawyers With Anxiety, Depression, And Bipolar Disorder, Daniel G. Esquivel
St. Mary's Journal on Legal Malpractice & Ethics
Abstract forthcoming.
Change At The Speed Of Leadership, Lee Fisher
Change At The Speed Of Leadership, Lee Fisher
Law Faculty Articles and Essays
“The most dangerous leadership myth is that leaders are born—that there is a genetic factor to leadership. . . That’s nonsense; in fact, the opposite is true. Leaders are made rather than born.”
“Lawyers are in the anomalous position of serving as leaders but generally lacking leadership training and skills. Competency in lawyering skills often functions as a proxy for leadership skills, despite the evidence that leadership skills are distinct and may take years to develop. Our neglect of leadership skills is reaching crisis proportions because nearly half of all current law firm partners will retire within the next ten …
Testing Privilege: Coaching Bar Takers Towards "Minimum Competency" During The 2020 Pandemic, Afton Cavanaugh
Testing Privilege: Coaching Bar Takers Towards "Minimum Competency" During The 2020 Pandemic, Afton Cavanaugh
Faculty Articles
The year 2020 was challenging for the bar exam. The longstanding argument that the bar exam is not a fair measure of the minimum competence of someone to practice law was cast into harsh relief and the truth-that the bar exam tests the privilege of its examinees-became startlingly apparent. Not only did 2020 kick off with a devastating global pandemic, but we also saw the rage against systemic racial injustice reach a boiling point just as we were charged with staying in our homes to avoid contracting COVID-19. With a pandemic raging, overt White supremacy on the rise, and racial …
Biglaw: Money And Meaning In The Modern Law Firm, Milton C. Regan, Lisa H. Rohrer
Biglaw: Money And Meaning In The Modern Law Firm, Milton C. Regan, Lisa H. Rohrer
Georgetown Law Faculty Publications and Other Works
The Great Recession intensified large law firms’ emphasis on financial performance, leading to claims that lawyers in these firms were now guided by business rather than professional values. Based on interviews with more than 250 partners in large firms, Mitt Regan and Lisa H. Rohrer suggest that the reality is much more complex. It is true that large firm hiring, promotion, compensation, and termination policies are more influenced by business considerations than ever before and that firms actively recruit profitable partners from other firms to replace those they regard as unproductive. At the same time, law firm partners continue to …
Is The Legal Profession Too Independent?, Limor Zer-Gutman, Eli Wald
Is The Legal Profession Too Independent?, Limor Zer-Gutman, Eli Wald
Marquette Law Review
Faced with mounting pressure to permit national law practice and increase
access to legal services for those who cannot afford to pay for them and
critiques about growing inequality and its failure to lead the battles for greater
gender and racial justice, the legal profession’s response has been to resist
reform proposals by invoking its independence. Lawyers and lawyers alone,
asserts the profession, ought to determine the pace and details of nationalizing
law practice, set the conditions under which nonlawyers and artificial
intelligence can offer legal services, and respond to growing inequality among
lawyers and concerns about the role lawyers …
A Systematic Review Of Information Seeking Behavior & Information Needs In Female Lawyers, Jibran Jamshed Mr.
A Systematic Review Of Information Seeking Behavior & Information Needs In Female Lawyers, Jibran Jamshed Mr.
Library Philosophy and Practice (e-journal)
Objectives: The primary objective of this study is to determine the legal information-seeking behavior of female lawyers. The study explores the legal information needs, methods, and barriers faced by female lawyers while seeking legal information.
Methodology: In this quantitative study survey design is used. The population of this study consists of female lawyers from which a sample (n=305) is taken. A structured questionnaire was distributed among the female lawyers of Punjab province in Pakistan. The questionnaire collected data regarding demographic information, information-seeking behaviors, information needs, and barriers faced by female lawyers while seeking legal information. SPSS (Statistical Package …
Keeping Lawyers' Houses Clean: Global Innovations To Advance Public Protection And The Integrity Of The Legal Profession, Susan Saab Fortney
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 …
A Fiduciary Theory Of Prosecution, Bruce A. Green, Rebecca Roiphe
A Fiduciary Theory Of Prosecution, Bruce A. Green, Rebecca Roiphe
Articles & Chapters
Scholars have failed to arrive at a unifying theory of prosecution, one that explains the complex role that prosecutors play in our democratic system. This Article draws on a developing body of legal scholarship on fiduciary theory to offer a new paradigm that grounds prosecutors’ obligations in their historical role as fiduciaries. Casting prosecutors as fiduciaries clarifies the prosecutor’s obligation to seek justice, focuses attention on the duties of care and loyalty, and prioritizes criminal justice considerations over other public policy interests in prosecutorial charging and plea-bargaining decisions. As fiduciaries, prosecutors are required to engage in an explicit deliberative process …
Capitalizing On Healthy Lawyers: The Business Case For Law Firms To Promote And Prioritize Lawyer Well-Being, Jarrod F. Reich
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 …
Capitalizing On Healthy Lawyers: The Business Case For Law Firms To Promote And Prioritize Lawyer Well-Being, Jarrod F. Reich
Capitalizing On Healthy Lawyers: The Business Case For Law Firms To Promote And Prioritize Lawyer Well-Being, Jarrod F. Reich
Georgetown Law Faculty Publications and Other Works
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 …
From Advocate To Party - Defenses For Lawyers Who Find Themselves In Litigation, Richard J. Wilson
From Advocate To Party - Defenses For Lawyers Who Find Themselves In Litigation, Richard J. Wilson
Articles in Law Reviews & Other Academic Journals
Attorneys, like all professionals, face civil liability when their action or inaction causes harm to a client. When an attorney fails the client, the claim most often asserted, and the claim that is typically most appropriate, is a legal malpractice claim. A legal malpractice claim is based on negligence.' Thus, the elements of a legal malpractice claim are (1) a duty, (2) a breach of that duty, (3) the breach proximately caused injury to the plaintiff, and (4) damages occurred.
Still, attorneys find themselves in a different circumstance than the average litigant. An attorney is not responsible for the client's …
Access Law Schools & Diversifying The Profession, Deseriee A. Kennedy
Access Law Schools & Diversifying The Profession, Deseriee A. Kennedy
Scholarly Works
Lawyers do not reflect the racial diversity in the United States. The legal profession continues to struggle with ways to achieve and maintain racial diversity. Law schools play a critical role in the path to practice, and therefore an examination of the barriers to the profession they created is warranted. This essay critiques the over-reliance on standardized testing in law school admissions and advocates for an open admissions process that prioritizes racial and academic diversity. It suggests that the benefits of minimizing the role of standardized tests far outweigh any perceived costs in legal education. This essay concludes that the …
Mandatory Legal Malpractice Insurance: Exposing Lawyers' Blind Spots, Susan S. Fortney
Mandatory Legal Malpractice Insurance: Exposing Lawyers' Blind Spots, Susan S. Fortney
Susan S. Fortney
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 …
Ethics 20/20 Successfully Achieved Its Mission: It "Protected, Preserved, And Maintained", James E. Moliterno
Ethics 20/20 Successfully Achieved Its Mission: It "Protected, Preserved, And Maintained", James E. Moliterno
James E. Moliterno
The legal profession tends to look inward and backward when faced with crisis and uncertainty. The legal profession could make greater advances by looking outward and forward to find in society and culture the causes of and connections with the legal profession’s crises. Doing so would allow the profession to grow with society, solve problems with rather than against the flow of society, and be more attuned to the society the profession claims to serve.