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From Advocate To Party - Defenses For Lawyers Who Find Themselves In Litigation, Richard J. Wilson

Scholarly Articles in Law Reviews & 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 …

Towards A More Ethical Ll.M. Degree: Let's Give International Lawyers The Value They Deserve, Carrie Teitcher, Kathleen Darvil

Faculty Scholarship

No abstract provided.

Double Standards: An Empirical Study Of Patent And Trademark Discipline, Jon J. Lee

Faculty Articles

Our legal system is built on the foundation that lawyers have a number of coexisting and sometimes conflicting duties — to their clients, to others who might be affected by their practice, and to the effective and equitable administration of justice. While most lawyers fulfill these duties ethically, invariably some fail to live up to these expectations. For this reason, all states have created disciplinary authorities to regulate and sanction lawyer misconduct. The United States Patent and Trademark Office (“USPTO”) is one of the few agencies to have developed its own disciplinary system for policing the conduct of trademark attorneys …

A New Frontier Facing Attorneys And Paralegals: The Promise & Challenges Of Artificial Intelligence As Applied To Law & Legal Decision-Making, Marissa Moran

Publications and Research

Artificial Intelligence/AI invisibly navigates and informs our lives today and may also be used to determine a client’s legal fate. Through executive order, statements by a U.S. Supreme Court justice and a Congressional Commission on AI, all three branches of the United States government have addressed the use of AI to resolve societal and legal matters. Pursuant to the American Bar Association Model Rules of Professional Conduct[i] and New York Rules of Professional Conduct (NYRPC), [ii] the legal profession recognizes the need for competency in technology which requires both substantive knowledge of law and competent use of technology for …

Something Wicked This Way Thumbs: Personal Contact Concerns Of Text-Based Attorney Marketing, Ashley M. London

Law Faculty Publications

When the American Bar Association (ABA) announced its latest revisions to Model Rules 7.1–7.5, governing attorney advertising, solicitation, and information about legal services in general, the organization may have unintentionally created a way for attorneys to hack directly into the brains of potential clients for purposes of pecuniary gain.

Brushing aside decades of precedent, the rule on Solicitation of Clients now allows real-time electronic solicitation, including text messaging and tweets. These developments beg the question of whether or not the ABA committee charged with redefining this rule actually understands the power and pervasiveness of cell phones, or how the use …

Jewish Lawyers And The U.S. Legal Profession: The End Of The Affair?, Eli Wald

Touro Law Review

No abstract provided.

From Attorney General To Backbencher Or Opposition Legislator: The Lawyer’S Continuing Duty Of Confidentiality To The Former Client, Andrew Martin

Articles, Book Chapters, & Popular Press

This note uses a recent incident from Manitoba to reflect on the professional duty of confidentiality owed to the Crown by a former Attorney General as lawyer. The duty of confidentiality survives the lawyer-client relationship. As a fiduciary, the lawyer cannot disclose or use the client’s confidential information for her own benefit or the benefit of a third party, or against the client. These obligations constrain the former Attorney General in her conduct as an opposition legislator and suggest that she should not accept an appointment as Justice critic for her caucus. While parliamentary privilege protects the former Attorney General …

Gladue At Twenty: Gladue Principles In The Professional Discipline Of Indigenous Lawyers, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

In the wake of the Truth and Reconciliation Commission, the legal profession and its regulators have focused on the training and education of lawyers and law students, particularly in “intercultural competency,” as emphasized in Calls to Action 27 and 28.9 For example, in 2018 the Advocates’ Society, the Indigenous Bar Association, and the Law Society of Ontario jointly published a Guide for Lawyers Working with Indigenous Peoples, which observed—among other things—that “there is no such thing as a culturally neutral practice of law.” However, this training and education focus is important but incomplete: The journey toward reconciliation will also involve …

Getting A Lawyer While Black: A Field Experiment, Brian Libgober

Lewis & Clark Law Review

In this Article, I present new evidence that African-Americans face unique impediments in obtaining access to counsel. Using a randomized audit design, I show that those with black-sounding names receive only half the callbacks of those with white-sounding names in response to requests for legal representation. I design a larger, follow-up experiment to evaluate variations on the theory of “statistical discrimination”—that lawyers are merely responding to economically relevant signals correlated with race. I find no evidence supporting the expectations of the statistical discrimination theory but some evidence that racial preferences matter. I conclude by presenting a more nuanced theory of …

Layers Of Lawyers: Parsing The Complexities Of Claimant Representation In Mass Tort Mdls, Lynn A. Baker, Stephen J. Herman

Lewis & Clark Law Review

The individual plaintiff in an MDL is subject to the efforts and decisions of numerous different attorneys, including many whom the plaintiff did not choose but who stand to share in any fees resulting from the plaintiff’s case. Which lawyers effectively represent the MDL plaintiff, at what point(s) in time, for what purpose(s), and with what obligations and potential liability to that plaintiff? What obligations and potential liability do the MDL leadership attorneys have to their own individually retained clients and other litigants in the MDL, and how should these attorneys handle any perceived conflicts in their obligations to the …

Digging Into Algorithms: Legal Ethics And Legal Access, Carla L. Reyes, Jeff Ward

Faculty Scholarship

The current discussions around algorithms, legal ethics, and expanding legal access through technological tools gravitate around two themes: (1) protection of the integrity of the legal profession and (2) a desire to ensure greater access to legal services. The hype cycle often pits the desire to protect the integrity of the legal profession against the ability to use algorithms to provide greater access to legal services, as though they are mutually exclusive. In reality, the arguments around protecting the profession from the threats posed by algorithms represent an over-fit in relation to what algorithms can actually achieve, while the visions …

The Politics Of Lawyer Regulation: The Case Of Malpractice Insurance, Leslie C. Levin

Faculty Articles and Papers

This Article examines the politics of lawyer regulation and considers why some states will adopt lawyer regulation that protects the public, when others will not. It uses the debates over how to regulate uninsured lawyers as a lens through which to examine the question. Clients often cannot recover damages from uninsured lawyers who commit malpractice, even when those lawyers cause serious harm. Yet only two states require that lawyers carry malpractice insurance. This Article uses case studies to examine the ways in which six states recently have addressed the issue of uninsured lawyers to understand this regulatory failure. It uses …

Report To The Wisconsin Office Of Lawyer Regulation: Analysis Of Grievances Filed In Criminal And Family Matters From 2013-2016, Leslie C. Levin, Susan Saab Fortney

Faculty Articles and Papers

In many states, the highest number of docketed grievances arise out of criminal and family law matters. This report analyzes the 4,898 grievances filed with the Wisconsin Office of Lawyer Regulation (“OLR”) in family or criminal law matters during the period from 2013-2016. The OLR provided the data, enabling analysis of the grievances by gender, age, length of time since law school graduation, type of matter, prior experience with diversion or discipline, and geographical location. The data also revealed the frequency of allegations by practice matter, the types of allegations that led to discipline, and the frequency with which lawyers …

Contracts: An Eight-Factor Test For Quantum Meruit Compensation For A Dismissed Contingency Fee Counsel—Faricy Law Firm, P.A. V. Api, Inc. Asbestos Settlement Trust, 912 N.W.2d 652 (Minn. 2018), Mitch Ohiwa

Mitchell Hamline Law Review

No abstract provided.

A Less Private Practice: Government Lawyers And Legal Ethics, Jennifer Leitch

Dalhousie Law Journal

Government lawyers are public servants and legal professionals. How they differ from private lawyers has much to do with whom they purport to represent and how they exercise power as a lawyer. I will look at a particular case-study—the St. Anne’s Residential school adjudication. This case study illustrates the challenges that government lawyers face in fulfilling their professional duty within a traditional private lawyer framework. St. Anne’s Residential School involved some of the most egregious physical, sexual and psychological abuse of Indigenous children between 1941 and 1972. St. Anne’s Residential School litigation is used as a cautionary (and truly tragic) …

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 …

Using Data Analytics To Predict An Individual Lawyer's Legal Malpractice Risk Profile: Becoming An Lpl "Precog", Nancy B. Rapoport, Joseph R. Tiano Jr.

Scholarly Works

The power of data analytics is revolutionizing the way that business is conducted in nearly every industry. The medical industry, the consumer/retail space, and the banking and financial industries are taking their business operations to the next level by leveraging the power of big data. Despite radical transformations in nearly every other aspect of the legal industry, though, the approach to preventing, predicting, assessing, and resolving malpractice claims hasn't really changed. Malpractice insurers and their law firm clients continue to take an old-fashioned approach when it comes to legal professional liability. Unlike the insurers pricing automobile policies, the vast opportunity …

The Voice Of The Gods Is Crippling: Law School For Helicoptered Millennials, Katerina P. Lewinbuk, Taci Villarreal, Elena Bolonina

St. Mary's Journal on Legal Malpractice & Ethics

As millennials dominate law school classrooms, many professors are recognizing the importance of altering the traditional methods of teaching law. Millennials act, think, and learn differently. Numerous factors are linked to why this new generation of law students is distinctively different than previous generations. This article examines these factors and how they influence millennials’ learning styles. Alternative methods of teaching millennial law students are also discussed and proposed, along with a specific example of a tailored professional responsibility textbook and course to the modern law student.

Common Interest Doctrine In Ip Transactions, John C. Reich, Sangki Park

Cybaris®

No abstract provided.

A Former Senator’S Guide To Professional Responsibility: Rpc 8.4 And The Appearance Of Impropriety In Retainer Fees And Politics, Michael S. Morgan

Oklahoma Law Review

No abstract provided.

Bring On The Pettifoggers: Revisiting The Ethics Rules, Civil Gideon, And The Role Of The Judiciary, Jodi Nafzger

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Thomas L. Shaffer, Legal Ethics, And St. Mary’S University, Vincent R. Johnson

St. Mary's Journal on Legal Malpractice & Ethics

Tribute to Thomas L. Shaffer

Securing Technological Privacy: Modernizing The Texas Disciplinary Rules Of Professional Conduct To Protect Electronic Data, Ashley "Nikki" Vega

St. Mary's Journal on Legal Malpractice & Ethics

This comment explains how and why the Texas Disciplinary Rules of Professional Conduct (the “Texas Disciplinary Rules”) should be updated to reflect the modernization of technology. Lawyers must keep abreast of changes in the law and its practices; including those which are technological in nature. The American Bar Association (the “ABA”) recently amended the “technology provisions” of its Model Rules of Professional Conduct (the “Model Rules”); namely Rule 1.1 “Competence” and Rule 1.6 “Confidentiality of Information” in order to keep up with the benefits and risks associated with technology in the legal profession. Additionally, over half of all jurisdictions have …

Tiptoeing Through The Landmines: The Evolution Of States' Legal Ethics Authority Regarding Representing Cannabis Clients, Karen Boxx

Articles

No abstract provided.

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 …

Navigating Technology Competence In Transactional Practice, Lori D. Johnson

Scholarly Works

In 2012, the American Bar Association House of Delegates, based on the work of the ABA Commission on Ethics 20/20, amended the Model Rules of Professional Conduct (Model Rules) to include a new requirement concerning lawyer competence. The obligation, enacted as Comment 8 to existing Model Rule 1.1 (outlining a lawyer's requisite competence) (Rule 1.1), requires lawyers "keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology." To date, Comment 8 to Rule 1.1 (Comment 8 or the Comment) has been adopted in thirty-eight states, and has begun generating scholarship and …

Legal Ethics And Law Reform Advocacy, Jeffrey W. Stempel

Scholarly Works

Social activism, particularly law reform, has long been an accepted, even revered part of the lawyer's identity. However, modern developments such as nation-wide firms, the economic importance of client development, and aggressive attempts by clients to deploy attorneys as de facto, undisclosed lobbyists have put substantial pressure on the traditional vision of the attorney as a "lawyer-statesman" or someone who "checks clients at the door" when participating in law reform activities. Furthermore, law reform activism on behalf of one client (or prospective client when attorneys use their law reform lobbying as part of their marketing strategy) poses a real danger …

Centering Race At The Medical-Legal Partnership In Hawai’I, Dina Shek

University of Miami Race & Social Justice Law Review

No abstract provided.

Law School News: Among The Trailblazers 12/02/2019, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

The Role Of “Coordinating Discovery Attorneys” In Multidefendant Federal Criminal Cases, Hannah Silverman

Fordham Law Review

The twenty-first century’s technological revolution has shifted the practice of law, including litigation, from being primarily paper-based to paperless. To manage the increasingly complex organization and review of evidence in civil and criminal cases, attorneys outsource legal tasks, work on teams, and use discovery coordinators. This Note examines the development of court-appointed coordinating discovery attorneys and their role in multidefendant federal criminal trials involving voluminous discovery. With a background in criminal defense and electronic discovery, these lawyers provide hands-on assistance as a way to cut costs, help overburdened and underfunded defense counsel, and improve representation of criminal defendants. In 2014, …