Digital Commons Network^™

The Lesson Of The Irish Family Pub: The Elder Clinic Path To A More Thoughtful Practice, Katherine C. Pearson

Faculty Scholarship

In this article, the Director of the Elder Law Clinic at Pennsylvania State University provides insight into the development of Elder Law as a unique discipline by tracking the history and challenges faced by her program as it approaches ten years of operation. A core focus of the Elder Law clinic, beyond practical experience, is to expose its students to the ethical issues confronted in Elder Law practice. Students in the clinic combine classroom discussions with practical experience representing clients, thereby becoming better prepared for their professional futures, while also gaining appreciation for the special concerns of the elderly client. …

Team Of Rivals? Toward A New Model Of The Corporate Attorney-Client Relationship, David B. Wilkins

Fordham Law Review

No abstract provided.

Colorado Legal Ethics: Guide To Resources, Robert M. Linz

Publications

No abstract provided.

Collaborative Lawyers' Duties To Screen The Appropriateness Of Collaborative Law And Obtain Clients' Informed Consent To Use Collaborative Law, John M. Lande, Forrest Steven Mosten

Faculty Publications

Collaborative Law (CL) is an innovative dispute resolution process that offers significant benefits but also poses significant non-obvious risks. This Article provides a systematic analysis of these possible risks as identified in books written by CL experts, CL practice group websites, social science research, and bar association ethics opinions. In CL, the lawyers and clients sign a "participation agreement" promising to use an interest-based approach to negotiation and fully disclose all relevant information. A key element of CL is the "disqualification agreement" signed by parties (and sometimes by attorneys) which provides that both CL lawyers would be disqualified from representing …

Externships: A Signature Pedagogy For The Apprenticeship Of Professional Identity And Purpose, Kelly S. Terry

Journal of Legal Education

No abstract provided.

Book Review Of Lawyers In The Dock: Learning From Attorney Disciplinary Proceedings, By Richard L. Abel, Eli Wald

Journal of Legal Education

No abstract provided.

Lawyering In The Academy: The Intersection Of Academic Freedom And Professional Responsibility, Robert R. Kuehn, Peter A. Joy

Journal of Legal Education

No abstract provided.

The Lawyer's Role In A Contemporary Democracy, Promoting Access To Justice And Government Institutions, Way To Represent: The Role Of Black Lawyers In Contemporary American Democracy, Carla D. Pratt

Fordham Law Review

No abstract provided.

Lawyers Without Borders, Catherine A. Rogers

Faculty Scholarship

Professional regulation of attorneys is still attempting to catch up with the burgeoning international legal profession, which until recently has been wholly unregulated. The primary effort has been through revisions to Model Rule 8.5 to extend the reach of the Rule to international cases and professional activities in foreign countries. Because Rule 8.5 was drafted for domestic multi-jurisdiction practice, however, it is based on assumptions about territoriality and the historical relationship between the jurisdiction of tribunals and the licensing of attorneys that are simply inapposite in international settings. As a result, applying Rule 8.5 to international tribunals and international advocacy …

Lawyers Without Borders, Catherine A. Rogers

Faculty Scholarship

Professional regulation of attorneys is still attempting to catch up with the burgeoning international legal profession, which until recently has been wholly unregulated. The primary effort has been through revisions to Model Rule 8.5 to extend the reach of the Rule to international cases and professional activities in foreign countries. Because Rule 8.5 was drafted for domestic multi-jurisdiction practice, however, it is based on assumptions about territoriality and the historical relationship between the jurisdiction of tribunals and the licensing of attorneys that are simply inapposite in international settings. As a result, applying Rule 8.5 to international tribunals and international advocacy …

The Lawyer's Role In A Contemporary Democracy, Promoting Access To Justice And Government Institutions, The Challenge Of Democratic Lawyering, Ascanio Piomelli

Fordham Law Review

No abstract provided.

Choice Of Law For Professional Responsibility Issues In Aggregate Litigation, Nancy J. Moore

Faculty Scholarship

As the rest of the papers in this symposium issue demonstrate, aggregate litigationi raises difficult, often intractable choice-of-law issues for judges, as well as for litigants and their lawyers. Typically, judges must choose among rules governing not only substantive law, but also statutes of limitations, allocation of damages, and punitive damages. 2 What is less well-recognized is that aggregate litigation may also present difficult choice-of-law issues regarding the ethical conduct of the lawyers involved in these cases. So far, these issues have barely surfaced, not because professional responsibility questions have not been raised with respect to aggregate litigation, but rather …

Professional Responsibility In Crisis, Douglas L. Colbert

Faculty Scholarship

Some rare, often catastrophic, events present in stark terms a need for careful reflection over the role of attorneys in our society and their ethical duties as members of the legal profession. The devastation caused by both Hurricane Katrina in 2005 and the terrorist attacks on September 11, 2001 certainly falls within this category. Professor Colbert uses these events as a backdrop to examine the legal profession’s ethical obligation when crisis compromises the most basic elements of our system of justice. Acknowledging that numerous members of the bar and thousands of volunteer law students courageously stepped forward in those challenging …

The Market For Bad Legal Advice: Academic Professional Responsibility Consulting As An Example, William H. Simon

Faculty Scholarship

Clients demand bad legal advice when legal advice can favorably influence third-party conduct or attitudes even when it is wrong. Lawyers supply bad legal advice most readily when they are substantially immunized from accountability to the people it is intended to influence. Both demand and supply conditions for a flourishing market are in place in several quarters of the legal system. The resulting practices, however, are in tension with basic professional and academic values. I demonstrate these tensions through critiques of the work of academic professional responsibility consultants in such matters as Enron, Lincoln Savings & Loan, and a heretofore …

Medium-Specific Regulation Of Attorney Advertising: A Critique, Lyrissa Barnett Lidsky, Tera Jckowski Peterson

UF Law Faculty Publications

This Article conducts an in-depth analysis of Florida's new and proposed attorney advertising rules and demonstrates that they are not only unconstitutional, but also fail to serve consumers' needs for legal services. The Article first provides the background necessary to assess the constitutionality of the rules and then addresses point-by-point their many constitutional flaws, both procedural and substantive. Additionally, this Article shows that Florida's new medium-specific regulations are flawed in their conception.

Do Judges Systematically Favor The Interests Of The Legal Profession?, Benjamin H. Barton

Scholarly Works

This Article answers this question with the following jurisprudential hypothesis. Many legal outcomes can be explained, and future cases predicted, by asking a very simple question: is there a plausible result in this case that will significantly affect the interests of the legal profession (positively or negatively)? If so, the case will be decided in the way that offers the best result for the legal profession.

The article presents theoretical support from the new institutionalism, cognitive psychology and economic theory. The Article then gathers and analyzes supporting cases from areas as diverse as constitutional law, torts, professional responsibility, employment law, …

"Lawyers" Not "Liars": A Modified Traditionalist Approach To Teaching Legal Ethics, Lonnie T. Brown

Scholarly Works

As attorneys, we undeniably should be faithful confidantes to, and staunch allies for, our clients, but we must also never lose sight of the fact that we are not simply client representatives; we are concurrently officers of the court and keepers of the public trust. Though I strive diligently to make my students aware of the specific ethical duties owed to clients, I always stress even more intently the importance of these latter two components of their professional obligation. They are what set the practice of law apart from other occupations, and they are what should serve to inspire us …

Clinical Genesis In Miami, Anthony V. Alfieri, Maryanne Stanganelli, Jessi Tamayo, Wendi Adelson

Articles

No abstract provided.

Sensational Reports: The Ethical Duty Of Cause Lawyers To Be Competent In Public Advocacy, Deborah J. Cantrell

Publications

This article argues that cause lawyers - those lawyers whose primary focus is on social change rather than on for-profit client-based work - have an ethical responsibility to be competent in public advocacy. That responsibility stems from a cause lawyer's commitment to the principles embodied in the particular social movement in which the lawyer is acting. It is reinforced by the requirement of competency under the Model Rules of Professional Conduct. To illustrate the contours of a competent public advocacy strategy, the article highlights two cause lawyering organizations, Legal Momentum and the Institute for Justice, and considers how each organization …

The Curious Incident Of The Law Firm That Did Nothing In The Night-Time, Nancy B. Rapoport

Scholarly Works

This essay argues that organizations (here, the Milbank, Tweed law firm) often ignore obviously bad behavior by their employees because of various psychological and sociological factors that prevent them from recognizing the behavior as bad in the first place.

Peace Is Not The Absence Of Conflict: A Response To Professor Rogers' Article: "Fit And Function In Legal Ethics", Kirsten D. Weisenberger

ExpressO

This paper takes the theoretical model Professor Catherine Rogers developed in her article “Fit and Function in Legal Ethics: Developing a Code of Conduct for International Arbitration,” 23 MICH. J. INT’L L. 341 (2002) as the starting point for an original argument that conflicts of laws analysis should be used to determine which legal ethics rules should apply to lawyers practicing international arbitration. The argument is supported by the new ABA Model Rules of Professional Conduct rule on choice of law explicitly applies conflicts of laws analysis to lawyers practicing in the multijurisdictional settings. This paper analyses the new ABA …

Unconscionable Contracting For Indigent Defense: Using Contract Theory To Invalidate Conflict Of Interest Clauses In Fixed-Fee Contracts, Jacqueline Mcmurtie

University of Michigan Journal of Law Reform

Indigent defense remains in crisis and yet constitutional challenges to promote systemic change have met with mixed success. This Article explores the new strategy of applying contract theory and principles to challenge indigent defense contracts that violate the canons of professional responsibility. This Article begins by discussing the author's experience working on cases of indigent defendants whose convictions were overturned through the efforts of the Innocence Project Northwest. The erroneous convictions were facilitated by the indigent defense contract in place at the time of the convictions. Pursuant to this contract, the indigent defense contractor agreed to provide representation in all …

Legal Doubletalk And The Concern With Positional Conflicts: A "Foolish Consistency?", Helen A. Anderson

ExpressO

This article explores the question whether lawyers should be able to argue both sides of a legal issue is unrelated cases. Today the ABA and many state bar associations caution against so-called “positional conflicts,” analyzing them as potential conflicts of interest under a multi-factor test. This relatively recent concern misses the real potential for harm: it is precisely when a lawyer decides not to make a contradictory argument for one client in order not to offend or harm another client that an ethical problem is likely to be present. A positional conflict is therefore evidence that any pressure to modify …

The Fall Of Legal Ethics And The Rise Of Risk Management, Anthony V. Alfieri

Articles

No abstract provided.

Drafting Attorneys As Fiduciaries: Fashioning An Optimal Ethical Rule For Conflicts Of Interest, Paula A. Monopoli

Faculty Scholarship

The American Bar Association recently revised the ethical rules that govern lawyers. Its Ethics 2000 Commission proposed a number of changes to the Model Rules of Professional Conduct, including revisions to the rules that affect how the profession handles conflicts of interest in the area of attorneys who draft instruments that name themselves as fiduciaries. The intersection of these changes, with their subsequent clarification by an ABA opinion issued in May 2002, has broad implications for attorneys practicing in this area. Given the increasing elderly population, the trillions of dollars that they are transferring to their baby-boomer children, and the …

Even Judges Don't Know Everything: A Call For A Presumption Of Admissibility For Expert Witness Testimony In Lawyer Disciplinary Proceedings The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility., Timothy P. Chinaris

St. Mary's Law Journal

Today's practice environment is full of potential ethical pitfalls for even the most conscientious lawyer. The consequences of being found guilty of misconduct can include suspension or disbarment from practicing as a lawyer. Added to these concerns is the fact that the judge or hearing panel before whom the case is tried may not be intimately familiar with the particular ethics rules or how they are interpreted in different areas of practice. In order to mount an effective defense against the disciplinary charges, an accused lawyer may want to introduce expert testimony on his or her behalf. Unfortunately for the …

Professional Responsibility Redesigned: Sparking A Dialogue Between Students And The Bar, Lois R. Lupica

Faculty Publications

In recent years, there have been many public and private, formal and informal complaints about the behavior of lawyers. Moreover, lawyers' tenuous reputation for honesty and integrity has been tarnished by recent, well-publicized scandals. The public, as well as members of the bench and bar, have further decried a decline in attorney professionalism. More than once, it has been suggested that in some way, failings of law schools are to blame. In response to these observations about the professional behavior of lawyers and as a result of the author's experiences of teaching a traditional, Socratic-method Professional Responsibility class for many …

Protecting The Interests Of Older Clients In Multi-Generation Representations, Carolyn L. Dessin

Akron Law Faculty Publications

Estate planning is a field in which attorneys often represent members of the same family of different generations. This frequently leads to situations in which the family members have conflicting, or at least potentially conflicting, financial interests. Unfortunately, attorneys sometimes do not recognize the difficulties that such conflicting interests may cause until a full-blown fight develops between members of the family. At that point, the attorney may find himself open to a disciplinary complaint or a malpractice action, or, at the very least, a group of unhappy former clients.

Special concerns arise when one or more of the family members …

Legal Malpractice In Texas: Examining Selected Cases And Forecasting Future Trrends Third Annual Symposium On Legal Malpractice & Professional Responsibility: Symposium Presentations., Wallace B. Jefferson

St. Mary's Law Journal

Little hard data exists concerning legal malpractice in Texas. What’s more, few legal law malpractice rulings are published. To date, there are only fifty written opinions on legal malpractice from Texas intermediate appellate courts. The activity that most often gave rise to a claim of legal malpractice involved the preparation, filing, and transmittal of documents, accounting for about a quarter of all claims. In San Antonio, Chief Justice Alma Lopez of the Fourth District Court of Appeals discussed common issues she sees in her courtroom. The issues ranged from failures to follow simple court rules to more substantial failures of …

The Ethical Obligation Of Transactional Lawyer To Act As Gatekeepers, Rutheford B. Campbell Jr., Eugene R. Gaetke

Law Faculty Scholarly Articles

Recent examples of managerial misconduct at major corporations have called into question the adequacy of the gatekeeper role provided by transactional lawyers representing corporations. That role is governed by Model Rule 1.13(b), which obligates the lawyer for a corporation to take remedial action if the lawyer knows that corporate managers are engaged in actions that amount to a "violation of a legal obligation" to the corporation or that are unlawful and likely to result in substantial injury to the corporation. In addition, Model Rule 1.2(d) forbids a lawyer from lending assistance to any action by corporate managers "that the lawyer …