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2023 Applied Professionalism, Indiana Continuing Legal Education Forum (Iclef)

Indiana Continuing Legal Education Forum 2023

Meeting proceedings of a seminar by the same name, held October 20, 2023.

Ethics_ Centralizing & Securing Your Documents, Indiana Continuing Legal Education Forum (Iclef)

Indiana Continuing Legal Education Forum 2023

Meeting proceedings of a seminar by the same name, held August 1, 2023.

Calling & The Legal Profession, Indiana Continuing Legal Education Forum (Iclef)

Indiana Continuing Legal Education Forum 2023

Meeting proceedings of a seminar by the same name, held November 9, 2023.

Ethical Lawyering: The Role Of Honor, Conscience, And Codes (Reviewing Michael S. Ariens, The Lawyer’S Conscience: A History Of American Lawyer Ethics), Vincent R. Johnson

Faculty Articles

Michael Ariens’ new book, The Lawyer’s Conscience: A History of American Lawyer Ethics, is a monumental work, rooted in his decades of excellent scholarship in the fields of attorney professional responsibility and legal history. The Lawyer’s Conscience captures the great sweep and key features of the roughly 250-year period in American legal ethics running from colonial times to the present day. Richly detailed and vividly presented, the story takes the reader on a grand tour of the landmark events and changing ideas that have defined the aspirations, responsibilities, and accountability of members of the American legal profession.

Private Sanctions, Public Harm?, Jon J. Lee

Faculty Articles

The legal profession has a secret. In response to widespread public distrust in the profession’s ability to regulate itself, state disciplinary authorities have undertaken modest efforts over the last several decades to make their activities more transparent. They have opened up their formal proceedings, publicized the identities of sanctioned attorneys, and shared information about their work online. But at the same time, most have quietly continued to resolve cases of ostensibly “minor” and “isolated” misconduct through the use of private sanctions, keeping the identities of disciplined attorneys—and their misconduct—hidden from view. This Article provides the first comprehensive scholarly contribution on …

Big Data & Litigation: Analyzing The Expectation Of Lawyers To Provide Big Data Predictions When Advising Clients, Siegfried Fina, Irene Ng (Huang Ying)

Indian Journal of Law and Technology

This article intends to provide a background of big data and law, and to provide insights on the interaction between professional legal ethics and big data analytics, i.e. whether a lawyer can be disciplined for failing to use big data analytics in litigation cases. While most references in this article will be made to developments in the US legal technology/legal industry scene, this article will also provide a short segment on general developments of big data and law in the developing world. Ultimately, this article hopes to shed light on what litigators may expect from the use of this technology …

The Foundational Skill Of Reflection In The Formation Of A Professional Identity, Neil W. Hamilton

St. Mary's Journal on Legal Malpractice & Ethics

There is a growing scholarly literature on the professional development and formation of law students into the core values, guiding principles, and well-being practices considered foundational to successful legal practice.* This growing scholarly literature can guide effective curriculum development to foster student growth toward later stages of development on these learning outcomes. This Article focuses on the skill of reflection as one of the most effective curricular strategies to foster each student’s growth toward later stages of these learning outcomes. This same curricular strategy will also be effective in engaging practicing lawyers to grow toward these same goals. Part II …

Daubert/Kumho Tire And The Legal Malpractice Expert Witness, Warren R. Trazenfeld, Robert M. Jarvis

St. Mary's Journal on Legal Malpractice & Ethics

In legal malpractice cases, parties almost always end up using expert witnesses. Whether a particular legal malpractice expert is qualified to testify often is a hotly contested issue. In this Article, the authors provide recommendations for how to qualify a legal malpractice expert and how to challenge a legal malpractice expert’s qualifications.

Daubert/Kumho Tire And The Legal Malpractice Expert Witness, Warren Trazenfeld, Robert M. Jarvis

Faculty Scholarship

In legal malpractice cases, parties almost always end up using expert witnesses. Whether a particular legal malpractice expert is qualified to testify often is a hotly contested issue. In this Article, the authors provide recommendations for how to qualify a legal malpractice expert and how to challenge a legal malpractice expert’s qualifications.

The Fate Of Comment 8: Analyzing A Lawyer's Ethical Obligation Of Technological Competence, Lisa Z. Rosenof

University of Cincinnati Law Review

No abstract provided.

The Exclusion Of Public Legal Education From Mandatory And Aspirational State Pro Bono Service Requirements, Amy Wallace

Articles & Chapters

Pro bono service is embedded in legal education and practice. Every year, lawyers and law students across the United States engage in countless hours of pro bono service. There are over 1.3 million lawyers in the country and more than one hundred thousand law students enrolled in law school. Lawyers perform an average of thirty-seven hours of pro bono work each year. They reference several factors that motivate them to perform this work but the desire to help people in need ranks highest. Professional duty is also listed as an important factor for lawyers choosing to perform pro bono work. …

Pennsylvania Lawyers Behaving Badly: Is 8.4(G) A Solution?, Ellen Brotman, Amy Coco

Hofstra Law Review

The article focuses on American Bar Association (ABA) adopted Model Rule of Professional Conduct 8.4(g), broadening the definition of attorney misconduct. It mentions affirmative rules or comments to Rule 8.4(d)2 that already reflected these values, few states defined attorney misconduct to include discrimination and sexual harassment. It also mentions Greenberg v. Haggerty, a federal court declared that the rule violated the First Amendment.

"Breathing Space To Survive"--The Missing Component Of Model Rule 8.4(G), Margaret Tarkington

Hofstra Law Review

The article focuses on American Bar Association (ABA) adopted Model Rule of Professional Conduct 8.4(g), which confront the issues that harassment and discrimination. It mentions state bars are somehow oblivious to the serious problems of discrimination and harassment in nation, the growing national outcry against such, or the impediment that discrimination and harassment can be to the working of justice.

Anti-Discrimination Ethics Rules And The Legal Profession, Micahel Ariens

Hofstra Law Review

The article focuses on goals of the rules of ethics applicable to lawyers from the American Bar Association's (ABA's) 1908 Canons of Professional Ethics, through its 1983 Model Rules of Professional Conduct. It mentions efforts are a response to the ABA's adoption in 2016 of Model Rule 8.4(g), an anti-discrimination (and anti-harassment) rule. It also mentions harassment or discrimination on the basis of race, sex, religion, and national origin.]

Aba Model Rule 8.4(G), Discriminatory Speech, And The First Amendment, Bruce A. Green, Rebecca Roiphe

Hofstra Law Review

The article focuses on American Bar Association (ABA) adopted Model Rule of Professional Conduct 8.4(g), for incivility might be used as a disciplinary standard to restrict lawyers' constitutionally protected speech. It mentions rule targets unlawful behavior including racial discrimination and sexual harassment, as well as some bad conduct that may otherwise be lawful and that might be hard to reach under existing rules, but that plainly should be sanctioned.

Ethical Limits On Promising To Pay An Adverse Award Of Attorney’S Fees Against One’S Client, Chase C. Parsons

St. Mary's Journal on Legal Malpractice & Ethics

Abstract forthcoming.

2022 Applied Professionalism, Indiana Continuing Legal Education Forum (Iclef)

Indiana Continuing Legal Education Forum 2022

Meeting proceedings of a seminar by the same name, held October 21, 2022.

Anti-Discrimination Ethics Rules And The Legal Profession, Michael Ariens

Faculty Articles

“Reputation ought to be the perpetual subject of my Thoughts, and Aim of my Behaviour. How shall I gain a Reputation! How shall I Spread an Opinion of myself as a Lawyer of distinguished Genius, Learning, and Virtue.” So wrote twenty-four-year-old John Adams in his diary in 1759. He had been a licensed lawyer for just three years at that time and had already believed himself to be hounded by “Petty foggers” and “dirty Dablers in the Law”—unlicensed attorneys who, Adams claimed, fomented vexatious litigation for the fees they might earn.

Adams believed his embrace of virtue, along with genius …

Toward More Robust Self-Regulation Within The Legal Profession, Veronica Root Martinez, Caitlin-Jean Juricic

Faculty Scholarship

The Trump Administration left reverberations throughout American life, and the legal profession was not insulated from its impact. The conduct of lawyers—both public and private—working on behalf of former President Trump was the subject of constant conversation and critique. The reality, however, is that the questions regarding the conduct of the Trump Administration lawyers, are rooted, in part, in more fundamental questions about the appropriate role of the lawyer within society. This Essay advocates for the adoption of a self-regulation scheme whereby lawyers regulate and oversee the conduct of other lawyers, to ensure that members of the legal profession are …

Building Fierce Empathy, Binny Miller

Scholarly Articles in Law Reviews & Journals

In this Article I explore the process of building and sustaining empathy with clients in the context of representing juvenile lifers-- people convicted of serious crimes as children and sentenced to life or sentences that ensure that they spend most of their lives in prison--in a law school clinic. Before turning to my own lawyering experiences and those of my clinic students, I ground the discussion of empathy in the competing theories of Charles Ogletree and Abbe Smith about the value of empathic lawyering for public defenders. These theories, together with the contributions of other scholars, provide a springboard for …

The Entity Attorney-Client Privilege Meets The Twenty-First Century: Rethinking Functional Equivalent Analysis In The Time Of A Nonemployee Workforce., Grace M. Giesel

Faculty and Staff Scholarship

Courts have struggled with whether an entity’s attorney-client privilege can protect communications between the entity’s lawyer and a nonemployee who has information the entity’s lawyer needs to best advise the entity. The nonemployee might be a former employee. But increasingly in recent times, the nonemployee is an individual who was never an entity employee. Corporations and other entities have incorporated nonemployees in their economic enterprises in all sorts of roles—roles employees may have held in the past. Many courts have accepted that the privilege can apply to communications involving former employees.

When faced with nonemployees who are not former employees, …

The Informed Consent Doctrine In Legal Malpractice Law, Vincent R. Johnson

St. Mary's Journal on Legal Malpractice & Ethics

The doctrine of informed consent is now deeply embedded into the law of legal ethics. In legal malpractice litigation, the doctrine holds that a lawyer has a duty to disclose to a client material information about the risks and alternatives associated with a course of action. A lawyer who fails to make such required disclosures and fails to obtain informed consent is negligent, regardless of whether the lawyer otherwise exercises care in representing a client. If such negligent nondisclosures cause damages, the lawyer can be held accountable for the client’s losses.

Shifting the focus of a legal malpractice action from …

Ethical Duty To Investigate Your Client?, Peter A. Joy

St. Mary's Journal on Legal Malpractice & Ethics

Lawyers have been implicated in corporate scandals and other client crimes or frauds all too often, and the complicity of some lawyers is troubling both to the public and to members of the legal profession. This is especially true when the crime involved is money laundering. As a response to attorney involvement in crimes or frauds, some legal commentators have called for changes to the ethics rules to require lawyers to investigate their clients and client transactions under some circumstances rather than remaining “consciously” or “willfully” blind to what may be illegal or fraudulent conduct. The commentators argue that such …

Model Rule 8.4(G) And The Profession’S Core Values Problem, Michael Ariens

St. Mary's Journal on Legal Malpractice & Ethics

Model Rule 8.4(g) declares it misconduct for a lawyer to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” The American Bar Association (ABA) adopted the rule in 2016 in large part to effectuate the third of its four mission goals: Eliminate Bias and Enhance Diversity. The ABA adopted these goals in 2008, and they continue to serve as ABA’s statement of its mission.

A …

Singapore: National Report For The Global Access To Justice Project, Tan K. B. Eugene

Research Collection Yong Pung How School Of Law

Global Access to Justice Project is gathering the very latest information on the impact of the world’s major justice systems, analyzing legal, economic, social, cultural and psychological barriers that prevent or inhibit many, and not only the poor, from entering and using the legal system. The country report for Singapore follows the common framework provided by the Global Access to Justice Project Questionnaire.

[email protected], Bruce A. Green, Carole Silver

Northwestern Journal of Technology and Intellectual Property

The transformative potential of technology in legal practice is well recognized. But wholly apart from how law firms actually use technology is the question of what law firms say about how they use and relate to technology—in particular, how law firms communicate whether technology matters and has value in what they do. In the past, firms in the BigLaw category, especially at the top echelon, have grounded their reputations on the credentials and achievements of their lawyers. In this paper, we explore whether elite law firms use technology similarly by describing it as an additional tool of inter-firm competition—a sort …

Multijurisdictional Practice And Transactional Lawyers: Time For A Rule That Is Honored Rather Than Honored In Its Breach, James Geoffrey Durham, Michael H. Rubin

Louisiana Law Review

Model Rule 5.5 of the American Bar Association’s Model Rules of Professional Conduct1 addresses two interrelated issues: the unauthorized practice of law, which applies to lawyers and nonlawyers alike, and multijurisdictional practice, which applies to lawyers who are licensed to practice in one state but whose work may involve or take them to states where they are not licensed.

The Incorporation Of Government Lawyering In The Teaching Of Legal Ethics In Canadian Law Schools, Andrew Martin, Leslie Walden

Articles, Book Chapters, & Popular Press

Government lawyers, and the specific legal ethics issues that arise in their practices, remain largely overlooked in Canadian legal education. The authors argue that government lawyering should be better incorporated into legal ethics curricula in law schools, for both practical and conceptual reasons. Most importantly, understanding issues unique to government lawyering helps students better understand core concepts in legal ethics, and thus better prepare for the practice of law both in the public and private sectors. While law teachers face serious challenges in incorporating government lawyering into legal ethics education, many of those challenges can be confronted and ameliorated. The …

How And Why Did It Go So Wrong?: Theranos As A Legal Ethics Case Study, G.S. Hans

Georgia State University Law Review

The Theranos saga encompasses many discrete areas of law. Reporting on Theranos, most notably John Carreyrou’s Bad Blood, highlights the questionable ethical decisions that many of the attorneys involved made. The lessons attorneys and law students can learn from Bad Blood are highly complex. The Theranos story touches on multiple areas of professional responsibility, including competence, diligence, candor, conflicts, and liability. Thus, Theranos serves as a helpful tool to explore the limits of ethical lawyering for Professional Responsibility students.

This Article discusses the author’s experience with using Bad Blood as an extended case study in a new course on Legal …

Lessons From The Present: Three Crises And Their Potential Impact On The Legal Profession, Raymond H. Brescia

Hofstra Law Review

The United States faces three simultaneous crises: a pandemic, a civil-rights reckoning, and a crisis of democracy. The first of these crises has sparked dramatic—though potentially temporary—changes to the practice of law: moving much legal work to remote settings almost overnight, after the profession had largely resisted making such accommodations for decades. The second has sparked an assessment of the extent to which the practice of law and the legal system are both riddled with racism and institutional bias. The third, the crisis of democracy, has lawyers at its center, filing frivolous claims and fomenting an armed insurrection with designs …