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Ensuring Our Success In An Uncertain Future, Ramón A. Abadin

Professionalism Research Library

What separates lawyers from most other professions — and what will distinguish us and ensure our continuing success in an uncertain future — is professionalism. Professionalism covers the wide range of attributes that make a lawyer a lawyer. The Florida Bar offers members six pages of “expectations” for professionalism, as well as a “Creed of Professionalism.” County and state bar associations, as well as the ABA, have written codes of professionalism. Perhaps The Florida Bar’s Standing Committee on Professionalism says it best: “Professionalism is the pursuit and practice of the highest ideals and tenets of the legal profession. It embraces …

Of Ethics And Economics: Contingent Percentage Fees For Legal Services, Janet Ann Laufer

Akron Law Review

The contingent percentage fee "is the dominant system in the United States by which legal services are financed by those seeking to assert a claim." The contingent fee is practically the exclusive method of compensating attorneys in personal injury cases.' Contingent percentage fees are also frequently employed in antitrust litigation, class suits, minority stockholder suits, worker's compensation practice, tax practice, and will settlements.'I While the Ethical Considerations of the Code of Professional Responsibility authorize use of the contingent fee in most civil cases," contingent fees are generally considered unethical when applied to criminal cases, divorce cases, and arrangements for procuring …

The Attorney-Client Privilege As Applied To Corporate Clients, Elinore Marsh

Akron Law Review

After sixty-six years of struggle and controversy surrounding the application of the attorney-client privilege to corporate clients the United States Supreme Court has taken one step in laying many questions to rest. Upjohn Co. v. United States was accepted by the Court to resolve differences in the circuits as to how far the privilege extends horizontally and vertically within the corporate structure. This comment discusses the ramifications of extending the privilege to an entity which operates only through its agents, the history of the privilege, the effect of the Upjohn decision and the questions which remain as yet unsolved.

Legal Malpractice Statutes Of Limitations: A Critical Analysis Of A Burgeoning Crisis, Joseph H. Koffler

Akron Law Review

Surprisingly little has been written on the law of legal malpractice. Even more disturbing is the fact that there is little analytical writing to help guide the courts and bar in this area. The analysis and recommendations contained in this article are intended as a basis in developing rules for statutes of limitations in legal malpractice actions that meet the needs of the parties, the test of fundamental fairness, and evoke a genuine sense of confidence in society.

Lawyer Discipline In Ohio During The 1980'S: A Decade Of Progress?, Stanley A. Samad

Akron Law Review

Through a series of articles, the author has traced the development of lawyer discipline in Ohio since 1967, with special emphasis on the decade of the 1980's.

This article is intended as an evaluation of the progress in lawyer discipline in Ohio during that decade. The norms for evaluation are the standards for lawyer discipline established by the American Bar Association (ABA) substantively and procedurally. Substantively, the "law of lawyering" appears primarily (although not exclusively) through either the 1969 ABA Model Code of Professional Responsibility (CPR), or the 1983 ABA Model Rules of Professional Conduct and Responsibility (RPC). Procedurally, the …

The Client Retention Agreement - The Engagement Letter, William C. Becker

Akron Law Review

What I propose to do in this paper is to review various aspects of engagement or client retention agreements. As background, I have examined some of the forms' which are suggested for these agreements and a number of agreements currently in use by lawyers and law firms, principally in the Summit County, Ohio area. The purpose of this effort is to examine some key provisions of these agreements and, perhaps, suggest possible improvements.

Shapero - Direct Mail Clarified, William C. Becker

Akron Law Review

In June, 1988 the Supreme Court handed down a decision which the bar had eagerly awaited. Now, the evolving, slippery subject of lawyer advertising and solicitation has been clarified further. This article examines several cases involving attorney advertising and provides a general overview of acceptable and nonacceptable methods of advertising by direct mail.

From Bigelow To Shapero: Steps Along The Way In Attorney Advertising, Horace E. Johns

Akron Law Review

In essence, the rationale for denying attorneys the right to advertise was to protect the public from overly-zealous attorneys who might be inclined to utilize unscrupulous methods to take advantage of unknowing clients.

Five reasons have been offered to support bans on advertising; (1) protection of consumers from misrepresentation concerning both price and the likelihood of successful litigation; (2) commercialization of the legal profession, resulting in neglect of clients; (3) prevention of overcharging and the securing of too many cases by attorneys to cover the costs of advertising; (4) protection of the bar's integrity; and (5) initiation of too many …

Sex And The Attorney-Client Relationship: An Argument For A Prophylactic Rule, Nancy E. Goldberg

Akron Law Review

In this paper, I argue that the initiation of sexual contact during the tenure of an attorney-client relationship is unethical and should be explicitly proscribed by the rules governing professional conduct. Although such behavior may be implicitly prohibited by existing disciplinary provisions, I advocate the promulgation of a bright line rule. Drawing such a line is required by reasons similar to those applicable in the medical profession. Additional rationales exist as well, which are unique to the legal profession.

Furthermore, the focus of this paper is on sexual relationships arising after the attorney-client relationship has begun. Representation of a client …

Law Firm Ownership Of Ancillary Businesses In Ohio - A New Era?, Stephen R. Ripps

Akron Law Review

The seeds of controversy about ancillary businesses were planted in 1983 when the American Bar Association's House of Delegates approved Model Rule 5.4 prohibiting non-lawyer participation in law firm businesses. Ohio has adopted the ABA Code of Professional Responsibility, not the Model Rules, but the Model Rules may nevertheless have an impact on the interpretation and development of ethical guidelines in Ohio and other Code states. In order to determine the status of ancillary businesses in Ohio today, analysis must proceed in this dual context.

Ohio Ethics Law Reforms: Tracing The Political And Legal Implications, Jack P. Desario, David E. Freel

Akron Law Review

To provide a comprehensive understanding of ethics reforms, this article will consist of four major sections. First, the article will explore Ohio's Ethics Laws and the agencies responsible for their enforcement prior to 1994. Second, the article will discuss the factors which contributed to calls for reform, as well as early reform efforts. Third, the article will explore and analyze legislative and media responses to the call for ethics reform. Finally, the article will summarize the outcome of the reform process and provide a review of the implications of the reformed Ethics Law.

The Future Of Iolta: Has The Death Knell Been Sounded For Mandatory Iolta Programs?, David J. Hrina

Akron Law Review

This comment seeks to outline the history of IOLTA, it’s current status, and it’s probable future in light of recent court decisions. First, the comment considers the history of IOLTA programs in both the United States and in Ohio. Second, it examines the primary types of constitutional challenges endured by IOLTA programs. Third, this comment focuses on the unlikely continued viability of IOLTA programs, in light of recent court decisions. Finally, this comment concludes with the proposition that mandatory IOLTA programs are on the verge of being declared unconstitutional and that states will need to consider alternative sources of money …

Accommodation Clients, Douglas R. Richmond

Akron Law Review

Accommodation clients typically are the creation of lawyers facing possible disqualification in litigation, although professional discipline and malpractice liability may also be concerns. They are also the creation of courts who believe that slavish adherence to conflict of interest rules sometimes produces unfair results in disqualification disputes. Ethics rules do not distinguish between “primary” clients and accommodation clients. Clients are clients. Or are they?

What Should Law School Student Conduct Codes Do?, Steven K. Berenson

Akron Law Review

Adopting a regulatory function as the primary goal of a law school code seems appropriate. In light of that goal, this article next attempted to present the broad outlines of a code that would serve that goal. Such a code would provide for an initial investigatory phase regarding alleged code violations, with students playing the key role in this and subsequent phases of the process under the code, in order to determine that only meritorious allegations be pursued...Perhaps in light of the possible objectives of a law school code discussed in the beginning of this article, the ultimate objectives advocated …

Why Lawyers Are Different And Why We Are The Same: Creating Structural Incentives In Large Law Firms To Promote Ethical Behavior - In-House Ethics Counsel, Bill Padding, And In-House Ethics Training, Ronald D. Rotunda

Akron Law Review

In many ways, lawyers are different than other people. In other ways, we are, sadly, so much the same. What we often call “legal ethics” or “professional responsibility” is the law governing the practice of law. This law serves to make us different, but our compliance with it struggles against the fact that we are not born different: we struggle with the same demons as other mortals, and like them, we learn to rationalize our failings. And, when we believe that no one is looking, when we are anonymous, we are more likely to rationalize. The structure of the large, …

Professional Responsibility In An Uncertain Profession: Legal Ethics In China, Judith A. Mcmorrow

Akron Law Review

This essay starts with two simple questions: Why do law schools in China have so little discussion of legal ethics? Why do students not press or seek more discussion of this topic? The essay then looks at the creation of norms of legal ethics from a topdown perspective and the inadequacy of that approach. Both a bottomup and top-down examination identify the tremendous challenges facing the Chinese emerging legal culture in building a coherent model of lawyering that can serve as the foundation for a system of legal ethics. This essay is intended as a contribution to the growing English …

Supervising Offshore Outsourcing Of Legal Services In A Global Environment: Re-Examining Current Ethical Standards, Mark L. Tuft

Akron Law Review

There are many forms of legal outsourcing that range from outsourcing administrative and support functions to outsourcing legal and law-related services domestically and abroad to ―offshoring,‖ in which a firm relocates certain legal and law-related services to a foreign jurisdiction that allows the firm to realize greater efficiency and lower costs. The question is whether a distinction between the duty of supervision over the work of foreign lawyers and domestic lawyers will continue to be valid in the changing global legal environment and whether the ethical obligations under the current rules for partners, managers, and supervisory lawyers in the traditional …

Inside, Outside: Cross-Border Enforcement Of Attorney Advertising Restrictions, Margaret Raymond

Akron Law Review

The question that motivated this paper was three-fold: whether states can regulate this type of cross-border advertising, whether they do, and whether they should...If a state wants to regulate advertising, it wants to regulate all advertising that the state‘s consumers will see, regardless of where it originated or where the lawyers who engaged in it are admitted to practice. Enforcement accordingly advances the interests that are assertedly served by attorney advertising restrictions. A failure to enforce restrictive rules against out-of-state lawyers, by contrast, has a somewhat counterintuitive result.

The Legal Ethics Of Metadata Mining, Andrew M. Perlman

Akron Law Review

Bar associations have produced a number of legal ethics opinions that address the practice of metadata mining. This essay explains the nature of the problem, reviews the ethics opinions that have addressed it, and contends that the issue is simply a variation of the oft-examined problem of inadvertently disclosed documents. The essay concludes that flat bans on metadata mining are misguided and that metadata mining should be treated in the same manner as inadvertent disclosures more generally. Under this approach, if a state permits lawyers to review inadvertently disclosed privileged documents, the jurisdiction should also permit lawyers to review the …

Exporting American Legal Ethics, James E. Moliterno

Akron Law Review

Over the past decade or so, a massive exportation of U.S. lawyer ethics law, primarily to emerging democracies, has been taking place. The exportation has been managed largely, but not exclusively, by ABA Rule of Law programs, funded extensively by grants from USAID. Excellent work is being done by these programs and nothing in this essay should be read to suggest that these projects lack value. But in one respect, the work of these and other such projects is sometimes tinged with cultural imperialism...The large-scale adoption of U.S. models of lawyer and judge regulation outside the United States is likely …

Multijurisdictional Practice And The Influence Of Model Rule Of Professional Conduct 5.5 - An Interim Assessment, Arthur F. Greenbaum

Akron Law Review

In this piece I examine the influence of Model Rule 5.5 on the law of multijurisdictional practice in the states by lawyers licensed in the United States who are not working in-house for an organizational client. In doing so, I do not intend to revisit the debate on what lines should be drawn, if any, to control multijurisdictional practice. Those issues have been well debated in the adoption of the Restatement (Third) of the Law Governing Lawyers, the deliberations of the Commission on Multijurisdictional Practice,15 consideration surrounding state implementation initiatives, and voluminous commentary. Instead, I want to explore the impact …

Sports And Entertainment Agents And Agent-Attorneys: Discourses And Conventions Concerning Crossing Jurisdictional And Professional Borders, David S. Caudill

Akron Law Review

Questions regarding the ethical obligations, pitfalls, and dilemmas facing attorneys who become sports or entertainment agents are not new. However, despite a substantial discourse on the topic, the sense persists that being both a lawyer and an agent is problematic. The applicable laws, including ethical regulations, seem to be clear, but are subject not only to law‟s usual jurisdictional variations and interpretive instability, but also to the mediation of conventions or tacit understandings that pervade the sports and entertainment industries.

The New Era - Quo Vadis?, Jack P. Sahl

Akron Law Review

Although the Miller-Becker Institute for Professional Responsibility (the MBI) planned its Inaugural Symposium before the creation of the 20/20 Commission, the Symposium brought together twenty-six national and international experts to examine the consequences of globalization, rapid technological change, and more.

Lawyers' Professional Independence: Overrated Or Undervalued?, Bruce A. Green

Akron Law Review

This article grows out of a presentation on November 9, 2012, as part of the Distinguished Lecture Series of the Akron Law Joseph G. Miller and William C. Becker Center for Professional Responsibility. This article begins with some reflections on the principal meanings of professional independence, as that term is conventionally employed. Part II discusses the bar’s collective independence to regulate its members. Part III discusses individual lawyers’ independence in the context of professional representations, including independence from clients, on one hand, and independence from third parties, on the other. Part IV then suggests that there is a meaning of …

What It Means To Be A Lawyer In These Uncertain Times: Some Thoughts On Ethical Participation In The Legal Education Industry, Susan Carle

Akron Law Review

I will first take a quick look in Part II at the basic data regarding employment statistics for recent law school graduates. This is the primary source of concern cited by those who argue that legal education is in profound crisis. What those statistics show, in a nutshell, is that large law firm hiring is down, but that small firm hiring is up by even more significant amounts, and that salaries for employed graduates continue to rise. What also continues to rise is the new law graduate unemployment rate, though not by the exaggerated dimensions some reports imply. New lawyers …

Ethics 20/20 Successfully Achieved Its Mission: It "Protected, Preserved, And Maintained", James E. Moliterno

Akron Law Review

The profession, it turns out, serves the status quo in multiple ways. At times, serving the status quo means making significant changes that will fend off outsiders or cultural change. At other times, serving the status quo means doing as little as possible in the vain hope that change will pass the profession by as if it were a bad dream rendered irrelevant by the morning light. In either event, the profession loses. Change comes and washes over the profession’s walls. The profession began to organize in earnest in the 1870s as state and local bar associations sprang up. For …

The Client Who Did Too Much, Nancy B. Rapoport

Akron Law Review

Discussion of the effect of a lawyer pursuing actions based on pressure from his client.

Administrative And Interim Suspensions In The Lawyer Regulatory Process - A Preliminary Inquiry, Arthur F. Greenbaum

Akron Law Review

Suspending a lawyer from practice, even for a limited period of time, however, can have substantial negative consequences for the lawyer, the lawyer’s clients, third-parties, and the legal system. In this article, I explore the differing rationales underlying each of these types of suspension and whether, in each instance, suspension is the appropriate tool to protect those interests, or whether less drastic remedies would suffice. Upon balancing the legitimate interests furthered by such suspensions against the substantial costs they impose, I argue for tempering those consequences in certain settings, such as pure administrative suspensions, and for employing less disruptive sanctions …

Tomorrow, And Tomorrow, And Tomorrow: Ethics 20/20 Amidst A Changing Profession, Thomas Ross

Akron Law Review

In Part II of this paper, I will sketch briefly my sense of some of the important ways in which the practice of law seems to be evolving. Part III will revisit the work of the Ethics 20/20 Commission and suggest that the posture of the Commission and of the ABA elite in this initiative has been essentially one of accommodation and facilitation, rather than an oppositional stance. I will briefly note a historical instance of the organized bar taking such an oppositional stance and offer some hypotheses about why the organized bar has chosen these two different postures in …

Attorney As Ethicist, Terry Szmagala

Akron Law Review

This is a transcript of Terry Szmagala’s speech from The University of Akron School of Law’s Miller-Becker Center for Professional Responsibility Symposium, Navigating the Practice of Law in the Wake of Ethics 20/20 – Globalization, New Technologies, and What It Means to Be a Lawyer in These Uncertain Times, which occurred April 4-5, 2013.