Legal Profession Commons^™

Technology In Legal Practice: Keeping Ethical Obligations In Mind, Teresa J. Verges, Christine Lazaro

Faculty Publications

(Excerpt)

The use of technology in the legal profession is ubiquitous, expanding, and ever changing. Lawyers connect with their clients, co-workers, and others through email. Cloud computing has allowed lawyers to create virtual and mobile workspaces, providing them with accessibility to client files and resources anywhere in the world. Social media allows lawyers to showcase their expertise and build their practice. Technology has undoubtedly impacted how lawyers provide legal services to their clients. However, as lawyers, we remain subject to long-standing professional and ethical obligations that govern our practice. This article explores how commonly used technology in legal practice implicates …

Conflicts Of Interest And Law-Firm Structure, Cassandra Burke Robertson

Faculty Publications

Business and law are increasingly practiced on a transnational scale, and law firms are adopting new business structures in order to compete on this global playing field. Over the last decade, global law firms have merged into so-called “mega-brands” or “mega-firms”—that is, associations of national or regional law firms that join together under a single brand worldwide. For law firms, the most common mega-firm structure has been the Swiss verein, though the English “Company Limited by Guarantee” structure is growing in popularity as well, as is the similar “European Economic Interest Grouping.” All of these structures allow related entities to …

Plagiarism In Lawyers' Advocacy: Imposing Discipline For Conduct Prejudicial To The Administration Of Justice, Douglas E. Abrams

Faculty Publications

In a recent high-profile prosecution, the federal district court criticized defense counsel for filing a post-trial brief that copied passages from previously published material without attribution. The court followed other recent decisions that, since about 2000, have chastised lawyers for briefs marked by plagiarism. Some lawyers had copied passages from earlier judicial opinions that rest in the public domain, and some lawyers (as in the recent prosecution) had copied passages from private sources that are subject to the copyright laws. In either event, courts have labeled lawyers’ plagiarism “reprehensible,” “intolerable,” “completely unacceptable,” and “unprofessional.”

Investigative Deceit, Kevin C. Mcmunigal

Faculty Publications

Is it ever ethical for a lawyer to ask or assist another person to lie on behalf of a client? Despite ethical rules categorically banning both personal and vicarious deceit, prosecutors routinely supervise police officers and informants who use deceit in investigating drug and sex offenses, organized crime, and terrorism. May defense lawyers make use of investigative deceit in criminal investigations? In this Essay, the Author examines this issue, the ethical rules bearing on it, and the recent trend in a number of jurisdictions allowing the use of investigative deceit by the defense. Drawing on his participation in a series …

Confidentiality And Claims Of Ineffective Assistance, Peter A. Joy, Kevin C. Mcmunigal

Faculty Publications

This column discusses what a defense lawyer should do when called upon to reveal client information in response to an ineffective assistance of counsel claim.

Contingent Rewards For Prosecutors?, Peter A. Joy, Kevin C. Mcmunigal

Faculty Publications

This column explores whether contingent reward plans for prosecutors are ethical. After weighing arguments in favor and against such plans, the column concludes that rewards for prosecutors contingent on trial convictions are unsound.

The Problems Of Plagiarism As An Ethics Offense, Peter A. Joy, Kevin C. Mcmunigal

Faculty Publications

This column questions the practices of labeling attorney copying, even without acknowledgement, as plagiarism, and treating it as a per se ethics violation. Instead, the column argues that analysis of copying in the litigation context should focus directly on the quality of the filing at issue and the competence and diligence of the lawyer who prepared it.

Getting Good Results For Clients By Building Good Working Relationships With 'Opposing Counsel', John M. Lande

Faculty Publications

Lawyers’ relationships with their “opposing counsel” make a big difference in how well they handle their cases. “Opposing counsel” often do oppose each other, sometimes quite vigorously, though they also regularly cooperate with each other. In the normal course of litigation, lawyers need to cooperate on many procedural matters. In some cases, they also cooperate to achieve their respective clients’ substantive interests. If the lawyers have a bad relationship, the case is likely to be miserable for everyone involved. If they have a good relationship, they are more likely to agree on procedural matters, exchange information informally, take reasonable negotiation …

Imputed Liability For Supervising Prosecutors: Applying The Military Doctrine Of Command Responsibility To Reduce Prosecutorial Misconduct, Geoffrey S. Corn, Adam M. Gershowitz

Faculty Publications

No abstract provided.

Collaborative Lawyers' Duties To Screen The Appropriateness Of Collaborative Law And Obtain Clients' Informed Consent To Use Collaborative Law, John M. Lande, Forrest Steven Mosten

Faculty Publications

Collaborative Law (CL) is an innovative dispute resolution process that offers significant benefits but also poses significant non-obvious risks. This Article provides a systematic analysis of these possible risks as identified in books written by CL experts, CL practice group websites, social science research, and bar association ethics opinions. In CL, the lawyers and clients sign a "participation agreement" promising to use an interest-based approach to negotiation and fully disclose all relevant information. A key element of CL is the "disqualification agreement" signed by parties (and sometimes by attorneys) which provides that both CL lawyers would be disqualified from representing …

Deceit In Defense Investigations, Peter A. Joy, Kevin C. Mcmunigal

Faculty Publications

Prosecutors and police routinely employ misrepresentation and deceit in undercover investigations. In cases ranging from drug distribution, prostitution, and sexual misconduct with minors to organized crime and terrorism, police and those cooperating with police deceive suspects and their cohorts about their identities and their intentions in order to gain information to help uncover past crimes and thwart future crimes. Frequently, such deceit helps reveal the truth about what criminals do and think.

May defense lawyers and investigators working for them employ similar tactics? Or should prosecutors be the only lawyers allowed to direct and supervise investigatory deception? In recent years, …

Do Two Wrongs Protect A Prosecutor?, Peter A. Joy, Kevin C. Mcmunigal

Faculty Publications

May a former criminal defendant bring a civil rights action against a prosecutor who fabricated evidence during an investigation and then introduced that evidence against the defendant at trial? The Seventh and Second Circuits have divided in answering this question. On November 4, 29, the Supreme Court heard oral argument in an Eighth Circuit case raising this question, Pottawattamie County v. Harrington, 547 F.3d 922 (8th Cir. 28), cert. granted, 129 S. Ct. 22 (April 2, 29), and many expected the Court to resolve the circuit split later this term. But on January 4, 21, the Court dismissed the case …

Aba Explains Prosecutor's Ethical Disclosure Duty, Peter A. Joy, Kevin C. Mcmunigal

Faculty Publications

The ABA Standing Committee on Ethics and Professional Responsibility recently issued an advisory ethics opinion explaining that the ethical duty of the prosecutor under Model Rule 3.8(d) to disclose exculpatory evidence and information to the defendant is separate from, and more expansive than, the disclosure obligations under the Constitution. This column reviews the opinion and its implications for discovery in criminal cases.

Corporate 'Miranda' Warnings, Peter A. Joy, Kevin C. Mcmunigal

Faculty Publications

Administrative agencies and prosecutors have adopted formal and informal measures to push corporations to establish compliance programs, to disclose wrongdoing voluntarily, and to cooperate with government investigations, creating what some commentators refer to as a culture of cooperation. Key to internal investigations are employee interviews by counsel.

Employees, especially senior employees, may assume that the lawyers representing their organizational employers represent them as well in matters relating to their work. To avoid this misunderstanding, both in-house and outside counsel now use “corporate Miranda warnings” or “Upjohn warnings.” In law enforcement interrogation, the Miranda warning is an antidote to the coercive …

The (Lack Of) Enforcement Of Prosecutor Disclosure Rules, Kevin C. Mcmunigal

Faculty Publications

In this Article, I assess the apparent prospects for increased disciplinary enforcement of state ethics rules based on Rule 3.8(d) of the American Bar Association's (“ABA”) Model Rules of Professional Conduct that mandates prosecutorial disclosure of exculpatory information. In particular, I focus on whether it makes sense to view recent ABA Formal Opinion 09-454, in which the ABA gave an expansive reading to Model Rule 3.8(d), as the bellwether of an era of increased enforcement of ethical disclosure rules for prosecutors.

Defense Counsel And Plea Bargain Perjury, Kevin C. Mcmunigal

Faculty Publications

No abstract provided.

Business Lawyers As Enterprise Architects, George W. Dent

Faculty Publications

In 1984 Ronald Gilson published Value Creation by Business Lawyers: Legal Skills and Asset Pricing. It began: "What do business lawyers really do? Embarrassingly enough, at a time when lawyers are criticized with increasing frequency as nonproductive actors in the economy, there seems to be no coherent answer." He dismissed lawyers' own answer that "they 'protect' their clients, that they get their clients the 'best' deal." He also rejected the academic literature which offered a laundry list of roles the business lawyer plays: "a counselor, planner, drafter, negotiator, investigator, lobbyist, scapegoat, champion, and, most strikingly, even as a friend." Dissecting …

Attorney-Client Privilege In The Public Sector: A Survey Of Government Attorneys, Nancy Leong

Faculty Publications

No abstract provided.

Sec Enforcement Of Attorney Up-The-Ladder Reporting Rules: An Analysis Of Institutional Contraints, Norms, And Biases, Michael A. Perino

Faculty Publications

In their paper and in their earlier comments to the SEC on the proposed attorney reporting rules, Professors Cramton, Cohen and Koniak do an excellent job recounting the genesis of the attorney reporting requirements in the Sarbanes-Oxley Act, describing the SEC's proposed and final rules and critiquing the rule's triggering mechanism and now apparently shelved noisy withdrawal requirement. Their case study of the recent Spiegel, Inc. independent examiner's report is a particularly useful vehicle for examining the practical implications of the SEC's policy and drafting choices. Although I was a member of a committee that submitted comments opposed to noisy …

Popular Culture As A Lens On Legal Professionalism, Hillary B. Farber, Alexander Scherr

Faculty Publications

This Article argues that the cultural images of lawyering provide opportunities for teaching professionalism that go well beyond the teaching of ethical rules using hypothetical facts. We contend that use of different media allows teachers to chart the broad middle ground between disciplinary minima and aspirational maxima - the map of realistic professional practice. This ground includes both rule- and conduct-based ideas of professionalism: careful role definition; responsible practice management; appropriate balance between public and private commitments; and concerns over manners, dress, and work ethic. The middle ground also includes less traditional content, discussion of which brings students to appreciate …

Incremental Bar Admission: Lessons From The Medical Profession, Jayne W. Barnard, Mark Greenspan

Faculty Publications

No abstract provided.

Renewable Bar Admission: A Template For Making "Professionalism" Real, Jayne W. Barnard

Faculty Publications

The citizens of this country should expect no less than the highest degree of professionalism when they have entrusted administration of the rule of law-one of the fundamental tenets upon which our society is based-to the legal profession. Re-examination was not originally required of medical specialists, but [the American Board of Medical Specialties] quickly recognized that a lifetime certification, even with required continuing education provided little incentive for doctors to keep up with new medical knowledge and techniques. Similarly, continuing [legal] education requirements alone are not sufficient to assure the integration of new law and procedure into a lawyer's practice. …

Allocation Of Decisionmaking Between Defense Counsel And Criminal Defendant: An Empirical Study Of Attorney-Client Decisionmaking, Rodney J. Uphoff

Faculty Publications

In Commonwealth v. Woodward, the highly publicized murder trial of an au pair accused of killing an infant in her care, the defense team faced a strategic decision commonly encountered at trial: whether to request or to object to lesser included jury instructions. Put simply, the Woodward defense team had to decide whether to ask for an instruction that would permit the jury to return a manslaughter verdict, or to object to such an instruction, leaving the jury only the choice either to acquit the defendant or to convict her of second degree murder as charged in the indictment. Undoubtedly …

A Post-Conference Reflection On Separate Ethical Aspirations For Adr's Not-So-Separate Practitioners, John Q. Barrett

Faculty Publications

At "The Lawyer's Duties and Responsibilities in Dispute Resolution" Symposium at South Texas College of Law, Oct. 25, 1996, a central topic of discussion was ADR's ethical separateness. There was a shared sense that ADR providers and practitioners confront a range of ethical issues that differ from those that confront non-ADR lawyers. On this view, because rules of professional responsibility are geared toward more adversarial forms of legal practice, they at best provide no answers and may provide wrong answers to ethical questions that arise in ADR. One solution would be to create new, separate, "role-specific" ethics rules for ADR …

The Judge's Role In The Enforcement Of Ethics - Fear And Learning In The Profession, John M. Levy

Faculty Publications

No abstract provided.

A Higher Duty: A New Look At The Ethics Of The Corporate Lawyer, Harvey Frank

Faculty Publications

No abstract provided.