Legal Profession Commons^™

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.

A Statistical Analysis Of The Patent Bar: Where Are The Software-Savvy Patent Attorneys?, Ralph D. Clifford, Thomas G. Field Jr., Jon R. Cavicchi

Faculty Publications

Among the many factors that impact the declining quality of U.S. patents is the increasing disconnect between the technological education patent bar members have and the fields in which patents are being written. Based on an empirical study, the authors show that too few patent attorneys and agents have relevant experience in the most often patented areas today, such as computer science. An examination of the qualification practices of the U.S. Patent and Trademark Office (“PTO”) suggests that an institutional bias exists within the PTO that prevents software-savvy individuals from registering with the Office. This paper concludes with suggestions of …

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 …

Henry King, Erik M. Jensen

Faculty Publications

Henry King and I both began at Case Western Reserve in 1983, memorialized in an issue of In Brief, the law school magazine, that has a cover photo showing total devastation. It looks like the aftermath of a faculty meeting, but the picture is really of bombed-out Nuremberg, of course.

Professor Morris Shanker, Erik M. Jensen

Faculty Publications

Morry Shanker began teaching at the Western Reserve Law School shortly after the creation of the Western Reserve. In fact, had Moses Cleaveland not elbowed his way to the front of the boat in 1796, Professor Shanker would have been the first surveyor to step onto the banks of the Cuyahoga. If that had happened, the house band at Severance Hall might be known today as the Shanker Orchestra.

A Tribute To Henry T. King, Michael P. Scharf

Faculty Publications

Henry King is the reason I'm teaching at Case Western Reserve University School of Law. Over the years he became my mentor, friend, and inspiration.

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.