Digital Commons Network^™

Beyond Technophobia: Lawyers’ Ethical And Legal Obligations To Monitor Evolving Technology And Security Risks, Timothy J. Toohey

Richmond Journal of Law & Technology

Lawyers and technology have an uneasy relationship. Although some lawyers are early adapters, others take pride in ignoring technology because they believe it is alien to the practice of law. As Jody R. Westby observed, lawyers confronted with technology and security issues tend to have their “eyes glaze over” and “want to call in their ‘IT guy’ and go back to work.” But this technophobic attitude may no longer just be harmless conservatism. In the world of growing security risks, ignorance of technology may lead to violations of lawyers’ fundamental ethical duties of competence and confidentiality.

When The Lawyer Screws Up: A Portrait Of Legal Malpractice Claims And Their Resolution, Herbert M. Kritzer, Neil Vidmar

Faculty Scholarship

No abstract provided.

A History Of The Law Clinics At St. Mary's University School Of Law., Sue Bentch

St. Mary's Law Journal

Abstract Forthcoming.

Tilting At Stratification: Against A Divide In Legal Education, Rebecca Roiphe

Articles & Chapters

Critics suggest we divide law schools into an elite tier whose graduates serve global business clients and a lower tier, which would prepare lawyers for simple disputes. This idea is not new. A similar proposal emerged in the early twentieth century. This article draws on the historical debate to argue that this simplistic approach cannot solve the myriad problems facing the legal profession and legal education. Supporters of separate tiers of law school rely on a caricature of the early history to argue that the Bar is acting in a protectionist way to ensure its own monopoly and keep newcomers …

Legal Ethics And Data Security: Our Individual And Collective Obligation To Protect Client Data, Drew Simshaw

Scholarly Works

New technologies are drastically changing the way lawyers practice law. Advances in areas such as cloud computing and mobile devices are enabling new ways to communicate with clients, as well as new ways to collect, store, and manage data pertaining to their cases. This Article provides practitioners with the necessary tools to fulfill their ethical obligation to protect client information in an increasingly digitized world.

Blind Spot: The Inadequacy Of Neutral Partisanship, Melissa Mortazavi

Faculty Articles

No abstract provided.

The Michael Morton Act: Minimizing Prosecutorial Misconduct., Cynthia E. Hujar Orr, Robert G. Rodery

St. Mary's Law Journal

Twenty-five years ago, Texas prosecutors significantly limited the pre-trial discovery it disclosed to criminal defendants. As a result of this policy, innocent individuals accused of murder, like Michael Morton, were denied their right to due process. Michael Morton was incarcerated for twenty-five years following a wrongful murder conviction. He was denied access to crucial evidence, which included a bandana with the victim’s blood and the killer’s hair, and eyewitness accounts describing the killer at or near the time of the murder. The prosecutor purposely withheld this evidence from Michael Morton; but thanks to the efforts of the Innocence Project, he …

Taking Teaching And Learning Seriously: A Tribute To Professor Susan Martyn, Irma S. Russell

Faculty Works

Professor Susan Martyn is an inspiring and dedicated teacher. She inspires me by her teaching, her work with students in the classroom, as well as with lawyers in continuing legal education programs, and her writing for scholars and the public. The invitation to write in a law review edition honoring this amazing professor and scholar provided the opportunity to contemplate a topic that is central to my life and the lives of most who teach: What is good teaching, and how do we increase good teaching and good learning in legal education today? We are in a time of stunning …

Redefining Professionalism, Rebecca Roiphe

Articles & Chapters

Most scholars condemn professionalism as self-serving, anti-competitive rhetoric. This Article argues that professionalism can be a positive and productive way of thinking about lawyers’ work. While it is undoubtedly true that the Bar has used the ideology of the professional role to support self-interested and bigoted causes, professionalism has also served as an important way of developing and marshalling group identity to promote useful ends. The critics of professionalism tend to view it as an ideology, according to which professionals, unlike businessmen, are concerned not with their own financial gain but with the good of their clients and the community …

Conceptualizing Student Practice For The 21st Century: Educational And Ethical Considerations In Modernizing The District Of Columbia Student Practice Rules, Wallace J. Mlyniec, Haley D. Etchison

Georgetown Law Faculty Publications and Other Works

This article traces the history of the amendment process. It provides a short history of student practice rules and then, using the student practice rule in effect in the District of Columbia prior to the 2014 amendments, describes the various components of those rules that courts and bars across the nation have implemented to assist courts, advance legal education, and preserve advocates’ ethical obligations to clients. It then describes some of the comments to the proposed amendments offered by the District of Columbia Bar and other D.C. lawyers during the public comment period and the modifications to the District of …

Examining The Websites Of Canada’S ‘Top Sex Crime Lawyers’: The Ethical Parameters Of Online Commercial Expression By The Criminal Defence Bar, Elaine Craig

Articles, Book Chapters, & Popular Press

Online advertising has become a primary source of information about legal services. This trend towards web-based marketing of legal services poses new challenges to the regulation of the legal profession. Challenges which, to date, have not been fully met. It also creates a new source of data for researchers studying aspects of the legal profession such as legal ethics, lawyers’ perspectives and strategies, and legal discourse. The objective of this study is to examine the most prominent websites in Canada that advertise legal representation for individuals accused of sexual offences. The study of these websites yielded two types of observations …

The Need For Conditions Limiting The Use Of Legislative History In Statutory Interpretation: Lessons From The British Courts, Sylvia Costelloe

Notre Dame Journal of Law, Ethics & Public Policy

Statutory interpretation is of crucial importance for both lawyers and judges. A notably fertile source of debate is the use of legislative history for purposes of statutory interpretation, which gained particular momentum in the past century. Proponents of the use of legislative history in statutory interpretation argue that it is a valuable tool for interpreting ambiguous statutes. On the other hand, opponents such as Justice Scalia have argued that the only law that should govern is that which has been passed by a majority of the House and the Senate. The debate among American judges and scholars has largely centered …

Defending Data, Pamela R. Metzger

Faculty Journal Articles and Book Chapters

Defending Data proposes a data-driven, systems-based approach to improving public defense in America.

Public defenders represent millions of defendants every year. Yet, public defense remains a largely data-less enterprise, a black box of discretionary decisions disconnected from any systemic analysis about the relationship between defender practices and case outcomes. Defending Data adopts a novel approach to the crisis of public defense. Building off of the successful implementation of system-based approaches in other complex, high-risk industries such as aviation and medicine, Defending Data explains how defenders can develop a data-driven systems approach to public defense.

Defending Data begins by describing the …

Revisiting The Client Conundrum: Whom Does Lawyer For A Government Represent, And Who Gives Direction To That Governmental Lawyer?, Hugh D. Spitzer

Articles

The issue of identifying a government attorney’s client is age-old, and Washington’s Rules of Professional Conduct provide somewhat different answers for lawyers who are government employees and for those who are with private firms. The matter becomes even more interesting when a government entity’s attorney is a publicly-elected legal official: an attorney general, prosecuting attorney, or city attorney in the case of Seattle and a number of other cities around the country. Others have written thoughtful pieces on the topic from a national perspective, and there is at least one excellent but slightly outdated piece by District of Columbia municipal …

Talk Don’T Touch? Considerations For Children’S Attorneys On The Physical Touch Of Clients, Andrea L. Dennis

Scholarly Works

Researchers focused on the representation of children and attorneys for children have taken great pains to explore issues surrounding the attorney-child client relationship and recommend strategies and policies supporting positive development of the relationship. Notwithstanding the breadth of available information, almost no attention has been aimed at whether attorneys should physically touch their clients. This article fills that gap.

This Article consists of three parts. Part I describes the literature commanding attorneys for children to develop quality relationships with their clients. These works recognize that young clients seek good relationships with their attorneys, but that barriers to creating quality relationships …

For Men Only: A Gap In The Rules Allows Sex Discrimination To Avoid Ethical Challenge, Michelle N. Struffolino

American University Journal of Gender, Social Policy & the Law

The billboard states: “Divorce: Men Only.” The reaction is one of confusion. Something just does not seem right. Isn’t this discrimination? Is the system willing to allow this message because the need to protect men’s rights in divorce outweighs the systemic and societal harms associated with the message?

Although this article focuses on the ethical issues associated with firms that exclude women from the pool of potential divorce clients, the existence of women only law firms is acknowledged. The analysis of the ethical issues raised by these gender specific firms is somewhat the same regardless of what gender is excluded. …

Class Counsel As Litigation Funders, Morris A. Ratner

Faculty Scholarship

No abstract provided.

Meaningful Involvement In Collections: Should Ethics Or The Fdcpa Govern?, Jeffrey S. Peters

Pace Law Review

This Note will explain and analyze the Fair Debt Collection Practices Act (FDCPA) and its case law. It will also discuss the interplay between the FDCPA case law and its ethical overtones. To understand the basis of this issue, Part II of this Note will begin by briefly developing the history and background of the FDCPA and discuss specific sections of the law designed to protect debtors from abusive debt collection practices. Notably, these sections relate to the prevention of improper practices for misleading debtors, and are the focus of the lawsuits that this Note will discuss. Accordingly, Part III …

The Folly Of Expecting Evil: Reconsidering The Bar’S Character And Fitness Requirement, Leslie C. Levin

BYU Law Review

No abstract provided.

Protecting The Profession Through The Pen: A Proposal For Liberalizing Aba Model Rule Of Professional Conduct 5.4 To Allow Multidisciplinary Firms, Candace M. Groth

Hamline Law Review

abstract

The Cost Of Avoidance: Pluralism, Neutrality, And The Foundations Of Modern Legal Ethics, Melissa Mortazavi

Florida State University Law Review

This Article offers an answer to key questions in modern American legal ethics: when and why did the legal profession stop talking about professional conduct in moral terms? Mining the history of current rules governing lawyer conduct, this Article reveals that while the 1969 Model Code of Professional Responsibility sought to revolutionize legal ethics by creating a professional code that was more transparent, democratized, and less hierarchical than the preceding 1908 Canons of Legal Ethics, that effort also excised a moral understanding of lawyering in order to facilitate a particular understanding of pluralism.

The drafters of the 1969 Model Code …

Lost In The Weeds Of Pot Law: The Role Of Ethics In The Movement To Legalize Marijuana, Helia Garrido Hull

Faculty Scholarship

No abstract provided.

The Role Of Ethics Audits In Improving Management Systems And Practices: An Empirical Examination Of Management-Based Regulation Of Law Firms, Susan Saab Fortney

Faculty Scholarship

For decades, legal malpractice experts have urged lawyers to implement risk management measures. To assist law firms in doing so, legal malpractice insurers have provided audit services and self-audit materials. Under the Australian regulatory regime, incorporated legal practices are required to complete a self-assessment process and to report on the firm's compliance with ten objectives of sound law practice. Using management-based principles, this Article discusses steps to take to encourage ethics audits "to merge good ethics and good business" in the U.S.

Globalization And The Aba Commission On Ethics 20/20: Reflections On Missed Opportunities And The Road Not Taken, Laurel S. Terry

Faculty Scholarly Works

The ABA Commission on Ethics 20/20 was established in order to “perform a thorough review of the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation in the context of advances in technology and global legal practice developments.” The thesis of this article is that the Commission was much more successful with the “technology” aspect of its work than it was with the globalization aspect of its work. This article offers an explanation for these differing levels of success and identifies an alternative path the Commission might have taken that might have led to greater success …

The Trials Of Clinical Education, Jonathan H. Oberman, Ekow N. Yankah

Articles

The article discusses the role of clinical education in law schools, emphasizing its value in bridging the gap between theoretical learning and practical experience. It highlights the challenges faced by students in clinical settings, such as the disparity between the meticulous preparation in classrooms and the often abrupt realities of courtroom decisions. The authors argue that while clinical education provides invaluable practical skills, it also risks disillusioning students when real-world outcomes contradict academic expectations. They advocate for a balanced approach that integrates both theoretical and practical training to prepare effective lawyers.

Attorneys' Ethical Responsibility To Provide Pro Bono Legal Services To Those In Need, Tricia Defilipps

Buffalo Public Interest Law Journal

No abstract provided.

Ethics, Advocacy, And The Child Client, Suparna Malempati

Cardozo Public Law, Policy & Ethics Journal

The article argues that lawyers representing children in abuse and neglect proceedings should act as traditional advocates, respecting the child's autonomy and adhering to ethical standards, rather than adopting a paternalistic role akin to a guardian ad litem. This approach ensures that children's voices are heard and their legal rights are protected.

Technology And Client Communications: Preparing Law Students And New Lawyers To Make Choices That Comply With The Ethical Duties Of Confidentiality, Competence, And Communication, Kristin J. Hazelwood

Law Faculty Scholarly Articles

That the use of technology has radically changed the legal profession is beyond dispute. Through technology, lawyers can now represent clients in faraway states and countries, and they can represent even local clients through a “virtual law office.” Gone are the times in which the lawyer’s choices for communicating with clients primarily involve preparing formal business letters to convey advice, holding in-person client meetings in the office, or conducting telephone calls with clients on landlines from the confines of the lawyer’s office. Not only do lawyers have choices about how to communicate with their clients, but they also frequently choose …

What Do We Talk About When We Talk About Control, Anthony J. Sebok

Articles

Despite the recent rejection by the ABA of attempts to weaken the limitations on the sharing of fees with non-lawyers, pressure to allow laypersons to invest in lawsuits remains. This article looks at one argument against lay investment in litigation, which is that laypersons should not be able to control how litigation is conducted.

Cultivating Professional Identity & Creating Community: A Tale Of Two Innovations, Jan L. Jacobowitz

University of Arkansas at Little Rock Law Review

No abstract provided.