Digital Commons Network^™

Diversity, Compliance, Ethics & In-House Counsel, Steven A. Ramirez

Faculty Publications & Other Works

No abstract provided.

The Exclusionary Rule And The Dueling Legacies Of Utah V. Streiff: Which Will Be Suppressed., Marcos Herrera

St. Mary's Law Journal

Abstract Forthcoming.

Just And Speedy: On Civil Discovery Sanctions For Luddite Lawyers, Michael Murphy

Faculty Scholarship

No abstract provided.

A Tort In Search Of A Remedy: Prying Open The Courthouse Doors For Legal Malpractice Victims, Susan S. Fortney

Fordham Law Review

Using this broad connotation of justice, this Article questions whether many victims of legal malpractice are denied access to justice. In writing about the regulatory function of legal malpractice as a tort, Professor John Leubsdorf argues that legal malpractice relates to three important functions of the law of lawyering: “[D]elineating the duties of lawyers, creating appropriate incentives and disincentives for lawyers in their dealings with clients and others, and providing access to remedies for those injured by improper lawyer behavior.” Arguably, persons injured by lawyer misconduct are denied access to justice if our civil liability system does not provide them …

The Economic Justice Imperative For Transactional Law Clinics, Lynnise E. Pantin

Faculty Scholarship

The economic, political, and social volatility of the sixties and seventies, out of which clinical legal education was born, has certain mythical qualities for most law students, and perhaps some law professors. America still bears the scars of the economic policies of those previous eras, such as redlining, blockbusting, poverty and urban decay. While the realities of the era may seem out of reach for many of our students, those arising out of that era have contributed to the wealth gap in this country, which has worsened over the last twenty years. Now more than ever, society needs social justice …

Model Rule 5.7 And Lawyers In Government Jobs - How Can They Ever Be Non-Lawyers, Hugh D. Spitzer

Articles

This article focuses on the application of the Rules of Professional Conduct to licensed attorneys who serve in non-lawyer jobs in government. There is a fair amount of literature about members of the bar who serve as staff counsel in legislatures or executive agencies. There is also literature on Rule 5.7 of the ABA Model Rules of Professional Conduct (“Responsibilities Regarding Law-related Services”) in the context of practicing lawyers who participate in ancillary “non-lawyering” business activities. Model Rule 5.7 deals with “services that might reasonably be performed” or “are related to the provision of legal services” but which are permitted …

'No Money Down' Bankruptcy, Pamela Foohey, Robert M. Lawless, Katherine Porter, Deborah Thorne

Scholarly Works

This Article reports on a breakdown in access to justice in bankruptcy, a system from which one million Americans will seek help this year. A crucial decision for these consumers will be whether to file a chapter 7 or chapter 13 bankruptcy. Nearly every aspect of their bankruptcies — both the benefits and the burdens of debt relief — will be different in chapter 7 versus chapter 13. Almost all consumers will hire a bankruptcy attorney. Because they must pay their attorneys, many consumers will file chapter 13 to finance their access to the law, rather than because they prefer …

State Bar Of California, Edith Jimenez, Andrew J. Van Arsdale, Bridget Fogarty Gramme

California Regulatory Law Reporter

No abstract provided.

"G" Is More Than "Pc" For Georgia: Why Prospective Adoption Of Aba Model Rule 8.4(G) Is A Viable Measure To Combat Discrimination And Harassment, Katie M. Wroten

Georgia Law Review

In August 2016, the American Bar Association
passed Model Rule 8.4(g) into its Model Rules of
Professional Conduct. The rule declares it misconduct
for a lawyer to harass or discriminate based on race,
sex, religion, national origin, ethnicity, disability, age,
sexual orientation, gender identity, marital status or
socioeconomic status. The scope of the rule extends to
lawyers' conduct outside of the courtroom, including
conduct related to the practice of law. The rule aims to
eliminate bias in the profession and justice system.
The Supreme Court of Georgia has yet to adopt any
version of Model Rule 8.4(g) in its comment …

The Professional Prospectus: A Call For Effective Professional Disclosure, Benjamin P. Edwards

Scholarly Works

Without easy access to relevant information, many consumers unwittingly trust serious decisions to professionals with histories of malpractice and negligence-leading to both individual and societal harms. This Article proposes to improve professional services markets with a tool that has already proven effective in the securities markets: a prospectus. A "Professional Prospectus" would reduce information asymmetries and improve the market for professional services through disclosure and consumer choice.

A Professional Prospectus would alter the market for professional services by making professional reputation a more potent force. Economic theory often relies on "reputation effects" to ensure the efficient functioning of the market …

The Contributions Of Louis Brandeis To The Law Of Lawyering, John S. Dzienkowski

Touro Law Review

No abstract provided.

Designing And Improving A System Of Proactive Management-Based Regulation To Help Lawyers And Protect The Public, Susan Saab Fortney

Faculty Scholarship

Increasingly, lawyers and decision-makers are recognizing the limitations and consequences of current approaches to attorney regulation. Inspired by developments in other countries, regulators in the United States and Canada have started the process of exploring innovative approaches, including proactive management-based regulation. The term, proactive-management regulation (PMBR), was first used by Professor Ted Schneyer to refer to a regulatory approach designed to promote ethical law practice by assisting lawyers with practice management.

The seed for PMBR was first planted in the Australian state of New South Wales (NSW). It grew out of the legislation that allowed limited liability and non-lawyer ownership …

Attorney's Withholding Of Tangible Evidence Of Crime Held Not Protected By Attorney-Client Privilege

The Catholic Lawyer

No abstract provided.

Compensation Of Out-Of-State Attorney

The Catholic Lawyer

No abstract provided.

See No Fiduciary, Hear No Fiduciary: A Lawyer’S Knowledge Within Aiding And Abetting Fiduciary Breach Claims, Brinkley Rowe

Fordham Law Review

Fiduciary liability for attorney conduct generally extends only to direct clients of legal services. Over the last few decades, however, the lawyer’s role has expanded. Following this trend, fiduciary liability also has expanded to allow third-party claims in certain limited circumstances. One example is the attorney aiding and abetting a client’s fiduciary breach claim. One of the key requirements for liability under this claim is the attorney’s knowledge of his client’s fiduciary relationship with the third party alleging the breach. Within those jurisdictions that have accepted the claim, there are two approaches to the knowledge element. The first is the …

Bankruptcy: Where Attorneys Can Lose Big Even If They Win Big, Stanislav Veyber

Brooklyn Journal of Corporate, Financial & Commercial Law

Historically, bankruptcy attorneys received the short end of the stick and were paid less for their services than attorneys in other fields of law. With the Bankruptcy Reform Act of 1978, Congress attempted to reduce the discrepancy in compensation. However, after the Supreme Court’s decision in Baker Botts v. ASARCO; L.L.C., the playing field remains unequal for bankruptcy attorneys. Following this decision, if a debtor disputes their attorney’s fee application, attorneys are at a disadvantage and cannot recover fees for defending their fee application. As a result, bankruptcy attorneys take an effective pay cut if they are faced with a …

The Impact Of Technological Developments On The Rules Of Attorney Ethics Regarding Attorney–Client Privilege, Confidentiality, And Social Media, Pamela A. Bresnahan, Lucian T. Pera

St. Mary's Journal on Legal Malpractice & Ethics

This article focuses on the development of the law of ethics and technology. Emphasis is placed on how technological developments have affected the rules and means by which lawyers practice law and certain ethical pitfalls that have developed hand-in-hand with technological advancements. Topics examined include: (1) the ways by which electronic communication has increased the potential for the attorney–client privilege to be waived and the resulting impact on the present-day practice of law; (2) the effect of social media on lawyers’ ethical obligations, including counseling clients regarding the client’s use of social media and the lawyer’s own use of social …

Limited License Legal Technicians: Non-Lawyers Get Access To The Legal Profession, But Clients Won’T Get Access To Justice, Julian Aprile

Seattle University Law Review

Washington Limited License Legal Technicians (LLLTs) are non-lawyers who will supposedly help to close “the wide and ever-growing gap in necessary legal and law related services for low and moderate income persons.” However, LLLTs will not close the access to justice gap because “[t]here are no protections . . . to ensure that legal technicians will actually provide services to the poor, as opposed to selling their services to those who can most afford them,” and LLLTs are “not going to have the competency to actually do for the poor what needs to be done.”

Additionally, the modifications of the …

Establishing Best Billing Practices Through Billing Guidelines: Fostering Trust And Transparency On Legal Costs, Laura Johnson, Howard Tollin, Marci Waterman, Sarah Mills-Dirlam

University of Arkansas at Little Rock Law Review

No abstract provided.

Peter Singer, Drowning Children, And Pro Bono, John M.A. Dipippa

Law Faculty Scholarship

This Article uses the ethicist Peter Singer's principles to examine and critique the legal profession's pro bono efforts in the face of the persistent gap between the public's legal needs and their ability to meet them. Singer argues that adults should jump into a pond to save a drowning child. Using the drowning child as an analogy, this Article argues that lawyers are morally obligated to (1)increase the amount of their pro bono efforts, (2) be more selective in the cases they take, and (3) be significantly more generous in their financial support for legal services providers. These obligations are …

A Tale Of Two Clinics: Similarities And Differences In Evidence Of The Clinic Effect On The Development Of Law Students' Ethical And Altruistic Professional Identities, Jonel Newman, Donald Nicolson

Buffalo Public Interest Law Journal

No abstract provided.

Peter Singer, Drowning Children, And Pro Bono, John M.A. Dipippa

West Virginia Law Review

This Article uses the ethicist Peter Singer's principles to examine and critique the legal profession's pro bono efforts in the face of the persistent gap between the public's legal needs and their ability to meet them. Singer argues that adults should jump into a pond to save a drowning child. Using the drowning child as an analogy, this Article argues that lawyers are morally obligated to (1) increase the amount of their pro bono efforts, (2) be more selective in the cases they take, and (3) be significantly more generous in their financial support for legal services providers. These obligations …

The Monopoly Myth And Other Tales About The Superiority Of Lawyers, Leslie Levin

Faculty Articles and Papers

The legal profession’s control of much of the market for legal services is justified by the claim that only licensed lawyers can effectively and ethically represent clients. This article challenges that claim. A review of a number of studies suggests that experienced nonlawyers can provide competent legal services in certain contexts and in some cases, can seemingly do so as effectively as lawyers. There is also little evidence that lawyers’ legal training, the bar admission requirements, or lawyers’ psychological characteristics make them more trustworthy than nonlawyer legal services providers. The article considers some recent initiatives, such as Washington’s approval of …

Uber For Lawyers: The Transformative Potential Of A Sharing Economy Approach To The Delivery Of Legal Services, Raymond H. Brescia

Buffalo Law Review

No abstract provided.

Looking To The Third Sovereign: Tribal Environmental Ethics As An Alternative Paradigm, Elizabeth Ann Kronk Warner

Pace Environmental Law Review

This article considers what role, if any, can tribal environmental ethics play in the re-examination and consideration of American environmental ethics? The answer—quite a substantial role. Tribes must straddle two worlds—a traditional one and one dominated by Western culture and values. As a result of this dichotomy, tribes are necessarily experts at adaptation and innovation. To demonstrate the value of looking to tribal environmental ethics when considering alternative ethical paradigms for the United States, this article begins by discussing the link between environmental ethics and policy making. With this understanding in place, the article then examines the importance of environmental …

In Defense Of The Devil's Advocate, Lonnie T. Brown Jr.

Hofstra Law Review

Among the many controversial positions for which Monroe Freedman advocated during his illustrious career, the one that I find most surprising and uncharacteristic is his contention that lawyers who undertake morally questionable representations have a duty to explain or justify their choice of client. Specifically, in 1993 Professor Freedman penned a well-known column in the Legal Times — titled “Must You Be the Devil’s Advocate?” — in which he took Professor Michael Tigar to task for his representation of reputed Nazi war criminal John Demjanjuk. Professor Freedman tacitly criticized Professor Tigar for his client choice and expressly called upon him …

Baring All: Legal Ethics And Confidentiality Of Electronically Stored Information In The Cloud, Whitney Morgan

Catholic University Journal of Law and Technology

No abstract provided.

Avoiding Grievances: 25 Things You Can Do, David Bright

St. Mary's Journal on Legal Malpractice & Ethics

Despite the high probability lawyers face of having grievances filed against them, there are best practices a lawyer can follow to lower the risk of facing a charge. The purpose of this Essay is to identify the most common situations that give rise to grievances against conscientious, skilled lawyers; to suggest ways that those lawyers can avoid grievances; and to suggest a sensible approach for practitioners facing a grievance.

An Analysis Of Austin Lawyers Guild V. Securus Technologies, Inc.: The Constitutional And Ethical Implications Of Using Illegally Recorded Attorney–Client Telephone Conversations As Derivative Evidence, Christina Santos

St. Mary's Journal on Legal Malpractice & Ethics

For the justice system to operate effectively, privileged communications between an attorney and his or her client should be afforded the utmost and strictest protections. Intrusion by law enforcement upon these communications severely diminishes the confidence and candor needed in the attorney-client relationship. Although the United States Supreme Court recognizes prosecutorial immunity and generally leaves prosecutorial discipline to state bar authorities, the Court has long held that the attorney-client privilege is needed for attorneys to effectively advocate on behalf of their clients.

Austin Lawyers Guild v. Securus Technologies, Inc., a civil class-action lawsuit, is currently pending before the United …

Navigating Some Deep And Troubled Jurisprudential Waters: Lawyer–Expert Witnesses And The Twin Dangers Of Disguised Testimony And Disguised Advocacy, W. William Hodes

St. Mary's Journal on Legal Malpractice & Ethics

Expert testimony is indispensable to the uniquely American system of adversary justice. Without the assistance of expert witnesses with specialized knowledge, based on either science or experience and practice, jury verdicts would often be the result of pure whim and prejudice, or random and arbitrary decision-making. At the same time, the use of compensated, partisan expert witnesses poses significant dangers to the fair and just determination of disputes. This Article examines the enhanced dangers that can appear when the expert witness is a lawyer, chiefly the pervasive use of “disguised testimony” and “disguised advocacy.” The Article concludes with some suggestions …