Legal Profession Commons^™

Reflections On Purpose And Professional Identity Formation, Harmony Decosimo

Mercer Law Review

I am very grateful to Professor Daisy Floyd for starting this important conversation about the role of purpose in professional identity formation, and for inviting me to participate in it. As I know my co-panelists agree, this is an important conversation not simply to us as lawyers, but as humans, trying to help each other figure out how to live good, meaningful lives.

I think what might be most useful in my response to Professor Floyd is to turn at least initially from the theoretical to the personal and practical by offering some insight into my own experience with purpose …

What About Us? How Law Schools Can Help Historically Underrepresented Law Students Develop Their Professional Identities, David A. Grenardo

Mercer Law Review

Talking about race, gender, and sexual orientation can be painful, messy, and difficult. This country’s history of discrimination and violence against historically underrepresented, marginalized, excluded individuals—racial and ethnic minorities, women, LGBTQIA+, those living with disabilities, the socioeconomically disadvantaged/lower class—makes these topics fraught with controversy and risk. We can easily offend someone accidentally when we try to address these topics even with the best of intentions. For example, some people may get nervous trying to figure out whether to use the words African-American, Black, BIPOC, person of color, or all of the above when discussing these topics and referring to someone …

Putting The Lawyer First: Framing Well-Being In Law As An Ethical Dilemma, Aric Short

Mercer Law Review

A disturbingly high percentage of our students continue to be unwell. In the most recent and comprehensive survey of law student well-being in 2021, almost 70% of law students responded that, in the past twelve months, they believed they needed to seek help for emotional or mental health problems. Embedded screening tools in the survey suggested that 34% of respondents were clinically depressed and 54% suffered from clinical anxiety. 44% of respondents reported being drunk in the past thirty days, 33% had engaged in binge drinking in the preceding two weeks, and 38% had smoked marijuana in the past twelve …

The Rule Of Law, The Lawyer’S Role As A Public Citizen, And Professional Identity: How Fostering The Development Of Professional Identity Can Help Law Schools Address The Crisis Facing American Democracy, Kendall Kerew

Mercer Law Review

American democracy is in crisis. The January 6, 2021, attack on the U.S. Capitol must serve as a renewed wake-up call for the legal profession. We can no longer keep our heads down, focused solely or even primarily on serving our clients, without being mindful that what we do every day as lawyers starts and ends with our duty to uphold the rule of law and our system of justice. We must acknowledge that lawyers are the ones who have put democracy at risk. Lawyers are the ones who, in their role as zealous advocates, attempted to overturn the 2020 …

Going Beyond Fear In Addressing Attorney Mental Health, Eric C. Lang

Mercer Law Review

We know that a career in law is challenging, but our profession has only recently focused on the mental health consequences of those challenges. We first started analyzing mental health issues after a number of attorney suicides caught the public eye. Realizing the problem was much broader than the tragic outcome of suicide, we have spent the last several years focused on the use of statistics to convince the profession of its own dangers. The solution, to date, has been an emphasis on Lawyer Assistance Programs and “wellness” initiatives accompanied by what could be described as scare tactics designed to …

Doubling Down: Supreme Court Of Georgia Allows For Seemingly Double Recovery Of Attorney’S Fees, Katie Anderson

Mercer Law Review

Never settle. Good words to live by, unless you are a civil defendant living in the state of Georgia. Following the Supreme Court of Georgia’s decision in Junior v. Graham, defendants in civil actions might have more of an incentive to settle their cases after the court allowed for a seemingly double recovery of attorney’s fees.

Georgia courts have consistently upheld the public policy of barring double recovery. Damages in civil actions are intended to make a plaintiff whole, not punish a defendant. However, in Junior, the court held that two statutory provisions, despite their similar measure of damages, did …

The Flag In My Drawer, Patrick Dawson

Mercer Law Review

This is my personal “Confederacy essay.” It is about my journey to understanding, and it was a long time coming. I write it for folks like me, namely those who have honestly not thought through this issue all that well. I write it also for my friends and anyone who cares. This essay’s roots are in a past Facebook discussion about the state of America, which I still think is a great nation. A friend of mine, far less convinced than I, told me bluntly to “get your Confederate flag out of the drawer.” I responded, truthfully, that I do …

Persuasion Principles For Lawyers, Jarome E. Gautreaux

Mercer Law Review

Lawyers spend a lot of time trying to persuade others. In this, they are not unlike most every other human being. Whether one spouse is trying to get the other to attend a sporting event they normally wouldn’t enjoy, or a car salesperson is trying to convince a potential buyer to buy the latest model convertible, or a doctor is trying to get their patient to stop smoking, all of us engage in persuasion a large portion of the time. It isn’t a stretch to say that persuading others, or at least trying to, is part of the fabric of …

Liberty And Justice For Y’All: Allowing Legal Paraprofessionals To Practice Law To Reduce The Effects Of Legal Deserts In Rural Georgia, Amanda Claxton

Mercer Law Review

The lack of attorneys in rural America is not merely a social or cultural problem—it is a legal problem that officers of the courts cannot continue to ignore. Legal deserts are geographical areas where legal services are widely unavailable. Particularly in rural Georgia, legal deserts are a substantial issue. Attorneys and nonprofit organizations have attempted to ease the detrimental effects of legal deserts in a variety of ways; for various reasons, those efforts have been insufficient, and rural counties struggle to attract lawyers. Still, there is one method of resolving legal deserts that Georgia has yet to attempt: creating an …

Can We Keep A Secret?: The Attorney-Client Privilege And Work-Product Doctrine In The Internal Law-Firm Setting-St. Simons Waterfront, Llc V. Hunter, Maclean, Exley & Dunn, Pc., Nicholas J. Garcia

Mercer Law Review

Recognized at common law, the attorney-client privilege is often invoked for the purpose of fostering honest and fruitful communication between attorneys and their clients. In St. Simons Waterfront, LLC v. Hunter, Maclean, Exley & Dunn, P C., the Georgia Supreme Court ruled on an issue regarding the reach of this privilege that had never before been addressed in Georgia courts. St. Simons Waterfront, LLC (SSW) asked the court to determine the applicability of the attorney-client privilege and work-product doctrine to communication between attorneys at Hunter, Maclean, Exley & Dunn, P.C. (Hunter Maclean) and its in-house general counsel. The court …

Legal Ethics, Patrick Emery Longan

Mercer Law Review

This Article covers the period from June 1, 2012 through May 31, 2013. During this period, the Georgia Supreme Court decided a number of lawyer-discipline cases and other matters related to licensure. The supreme court and the Georgia Court of Appeals decided cases involving legal malpractice, ineffective assistance of counsel, judicial ethics, and several miscellaneous matters. The supreme court also approved one significant Formal Advisory Opinion and one set of changes to the Georgia Rules of Professional Conduct.

Dear Lawyer: If You Decide It's Not Economical To Represent Me, You Can Fire Me As Your Contingent Fee Client, But I Agree I Will Still Owe You A Fee., David Hricik

Mercer Law Review

Contingent fees are a relatively recent development in American law. Once banned through common law doctrines, contingent fees have become a tool that allowed delivery of legal services to those who would otherwise be unable to front attorney fees in a case.

No doubt in part because of the historic prohibition against contingent fees, and also because clients in the typical personal injury case in which they were used were not sophisticated consumers of legal services, courts, legislatures, and bar associations have since the outset heavily regulated their use? Yet, the regulation has not been Draconian. Instead, courts have balanced …

Mind, Metaphor, Law, Mark L. Johnson

Mercer Law Review

Change, as John Dewey observed, is a basic fact of human experience. We are temporal creatures, and the situations we find ourselves in, the situations that make up the fabric of our lives, are always evolving and developing. The omnipresence of change throughout all human experience thus creates a fundamental problem for law, namely, how can law preserve its integrity over time, while managing to address the newly emerging circumstances that continually arise throughout our history? If, following one extreme, we think of law as fixed, static, and univocal in its content, then law runs the risk of losing its …

The Centrality Of Metaphor In Legal Analysis And Communication: An Introduction, David T. Ritchie

Mercer Law Review

Law, as a domain of human enterprise, is fundamentally discursive in nature. As such, understanding the elements of legal discourse, both analytical and communicative, is vital to understanding the nature of the enterprise. Metaphorical reasoning, and the communication of that reasoning, is one such element. Perhaps metaphor is one among many elements of legal discourse. In this view, metaphor theory would take its place alongside logic, narrative theory, rhetoric, and so on.

Against Acting 'Humanely', Michael Goldberg

Mercer Law Review

Who could possibly be against acting 'humanely'?

I, for one, am willing to be charged with such an offense, for the charge is too broad. What precisely does it mean to act 'humanely'? Name some cases of exemplary individuals acting 'humanely' to give some kind of context for the charge; furnish some case histories that depict specific human beings who stand as virtual metaphors of 'humanity at its best.' I maintain such narratives as these are indispensable if our talk of acting 'humanely' is to have any real content. They provide the various contexts within which we can see what …

Re-Embodying Law, Steven L. Winter

Mercer Law Review

It was fun to watch the audience of mostly first-year students during Mark Johnson's presentation. Seven weeks into their first semester of law school, this was clearly the most fun they had had so far. And it was easy to see why: law school takes place "from the neck up," so to speak. It is so relentlessly about reason abstracted from the ordinary interests, passions, and other embodied considerations of everyday (not to mention college) life. This deracination of law is ritualized metaphorically in the black robes that enshroud our judges' bodies as if to say, "See, it is all …

Question And Answer Period Of Symposium Participants

Mercer Law Review

No abstract provided.

Lawyers And Prophetic Justice, Timothy Floyd

Mercer Law Review

The statue of Lady Justice, a blindfold over her eyes, holding scales in one hand and a sword in the other, is our traditional visual image of justice. The scales convey the idea of neutrality and the weighing of competing interests; they emphasize rationality and the application of neutral principles in decision making. The blindfold emphasizes equality before the law, that the law is dispassionate and objective, and that decision making is untainted by bias. The statue also implies the stability and permanence of the justice system.

In my experience with lawyers, justice is not a regular topic in our …

Legal Ethics, Roy M. Sobelson

Mercer Law Review

The biggest news in Georgia legal ethics this year actually made it into the general press when the Georgia Supreme Court approved a bar committee opinion confirming that real estate closings remained the exclusive province of licensed Georgia lawyers. With the Justice Department, the Federal Trade Commission, and consumer advocates all weighing in with contrary opinions, the court held firm against the inevitable, continuing criticism and cries of protectionism. Combined with the current debates over both multidisciplinary and multijurisdictional practices, it looks like the profession will continue to engage in heated debate in Georgia, if not worldwide, well into the …

Nothing Lost, Nothing Owed: Supreme Court Upholds State Iolta Program In Brown V. Legal Foundation Of Washington, Robert C. Hughes Iii

Mercer Law Review

In a 5-4 decision in Brown v. Legal Foundation of Washington, the United States Supreme Court held that a state law that (1) requires lawyers and limited practitioner officers ("LPOs") to deposit client funds that cannot otherwise generate net-earning for their clients into an interest on lawyer's trust account ("IOLTA account") and (2) mandates that the interest produced on those funds be transferred to a different owner for a legitimate public use could constitute a per se taking of the clients' right to that interest, but no compensation is owed to such clients when they suffer no net loss. …

Engagement Letters In Transactional Practice: A Reporter's Reflections, D. Christopher Wells

Mercer Law Review

In recent years, lawyers have turned increasingly to written contracts, usually called "engagement letters," to memorialize their professional representations. This practice grows absent specific directives requiring such writings, apparently deriving from professional preference rather than mandatory rule. It grows also despite scant attention paid by law reviews and bar publications. Only infrequently do publications appear noting this practice or offering advice on drafting engagement letters. Even continuing legal education programs give them only occasional attention.

One of the most ambitious treatments of engagement letters came in 1997 from the State Bar of Georgia in the form of a report from …

A Ransom Note From The Opposition To The Proposed Rules Of Ethics For Legal Commentators, Raymond M. Brown

Mercer Law Review

Hijack the question!

That is a soupçon of tactical knowledge that every lawyer sojourning on the TV frontier absorbs quickly. In the fast-paced realm of the electronic media, there are limited opportunities to speak. To be effective you must disregard the dictates of politeness ingested at your mother's knee, ignore the question presented, and make your point succinctly. To wit:

Question: Do you think Bill Clinton should be impeached?

Answer: I think the abuse of power by Ken Starr doomed the Office of Independent Counsel and set a dangerous example for a whole generation of prosecutors.

Because the proponents of …

Symposium Introduction, Jennifer L. Motos, Jacob E. Daly

Mercer Law Review

No abstract provided.

The Ethics Of Being A Commentator Iii, Erwin Chemerinsky, Laurie Levenson

Mercer Law Review

The use of lawyers and law professors as commentators continues to increase. Although reporters have long used experts to explain and evaluate, in the last decade legal commentators have become a fixture in news stories about legal proceedings. A decade ago, when the McMartin Preschool case filled the news in Los Angeles, scarcely a commentator was used. A few years later, when the officers who beat Rodney King were tried in state court, daily legal commentary was absent. In sharp contrast, commentators were used on a regular basis during the federal prosecution of those officers. The subsequent trial of two …

A Panel Discussion On A Proposed Code Of Ethics For Legal Commentators

Mercer Law Review

Featuring:

• Raymond M. Brown
• Paul Butler
• Erwin Chemerinsky
• Johnnie L. Cochran, Jr.
• Laurie L. Levenson
• John H. McElhaney
• Barry C. Scheck
• Mary Tillotson

Moderator: Professor James P. Fleissner

A Primer On 11 U.S.C. § 328(A) And Its Use In Alternative Billing Methods In Bankruptcy, Robert J. Landry Iii, James R. Higdon

Mercer Law Review

Compensation of attorneys and professionals in the bankruptcy field is one of the most written about areas in bankruptcy law. Professionals, both familiar and unfamiliar with the mandates of the Bankruptcy Code and Federal Rules of Bankruptcy Procedure, are having an increasingly difficult time obtaining approval for the envisioned compensation. Problems generally do not arise for debtors' attorneys in the run-of-the-mill Chapter 7 case or Chapter 13 case. Flat fees are charged in most of these cases, and applications to employ debtors' attorneys are not filed. Therefore, retention orders are not entered. However, outside the run-of-the-mill Chapter 7 or 13 …

Florida Bar V. Went For It, Inc.: The Supreme Court Opens The Door For Heightened Limits On Attorney Advertising, Brett A. Steele

Mercer Law Review

Florida Bar v. Went For It, Inc. involves the constitutionality of Florida Bar rules prohibiting personal injury lawyers from sending targeted direct-mail solicitations to accident victims and their families within thirty days following an accident. In March 1992, respondent Went For It, Inc., a lawyer referral service, and its owner, G. Stewart McHenry, filed suit in the United States District Court for the Middle District of Florida against the Florida Bar, seeking declatory and injunctive relief. After referral from the district court, a magistrate judge recommended summary judgment in favor of the Florida Bar. The magistrate judge found that the …

The Advocate And The Media: The Courthouse Basement, Edward S, Mccallum Iii

Mercer Law Review

The coffee shop at the bottom of the well-worn stairs was not its usual flurry of jibes and clinking dishes. The frantic faces of young attorneys and the sly smiles of experienced advocates that normally graced the dingy tables were gone for the day. All that remained was a waitress brewing one last pot of coffee for the five criminal defense attorneys who somewhat anxiously, somewhat objectively were awaiting the verdict on their five co-defendants. The trial had lasted two tense and turbulent weeks, and now it was 6:30 p.m. The media had covered the case from day one, and …

Evidence--Attorney-Client Relationship--Client's Identity Privileged, Robert B. Lipman

Mercer Law Review

The United States Court of Appeals for the Fifth Circuit in In re Grand Jury Proceedings held that a client's identity, fee and bonding arrangements may be privileged from disclosure by his attorney to the grand jury when such protection is necessary to preserve the client's privileged motive.

Miscellaneous: Bar Admission Requirements, James C. Rehberg

Mercer Law Review

A study of bar admission requirements in Georgia and her neighboring states should serve to focus our attention on this subject which, in the past few years, has occupied the attention of not only the bench and bar of Georgia but also the General Assembly. For the purposes of this study, the states bordering upon Georgia are chosen, because the arguments for and against stricter bar admission requirements will be equally applicable in all of these states. The states to be considered are Georgia, South Carolina, North Carolina, Tennessee, Alabama and Florida.