Law Commons^™

Crown Prosecutors And Government Lawyers: A Legal Ethics Analysis Of Under-Funding, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

Crown prosecutors and government lawyers are reliant on governments for their funding but exert no meaningful influence or control over such funding decisions. Nonetheless, this article demonstrates that as a question of law, under-funded Crown prosecutors and government lawyers risk violating their professional duties. If so, they must promptly inform the government, refuse new matters and, if necessary, withdraw from existing matters. If the government purports to block such refusal or withdrawal and does not provide adequate funding, resignation will become necessary. While law societies will likely not prioritize disciplinary action against such lawyers, the policy reasons to forego such …

Judicial Ethics In The Confluence Of National Security And Political Ideology: William Howard Taft And The “Teapot Dome” Oil Scandal As A Case Study For The Post-Trump Era, Joshua E. Kastenberg

St. Mary's Law Journal

Political scandal arose from almost the outset of President Warren G. Harding’s administration. The scandal included corruption in the Veterans’ Administration, in the Alien Property Custodian, but most importantly, in the executive branch’s oversight of the Navy’s ability to supply fuel to itself. The scandal reached the Court in three appeals arising from the transfer of naval petroleum management from the Department of the Navy to the Department of the Interior. Two of the appeals arose from President Coolidge’s decision to rescind oil leases to two companies that had funneled monies to the Secretary of the Interior. A third appeal …

Ethics In An Echo Chamber: Legal Ethics & The Peremptory Challenge, Kayley A. Viteo

St. Mary's Journal on Legal Malpractice & Ethics

Abstract forthcoming.

Judicial Ethics: A New Paradigm For A New Era, Charles G. Geyh

St. Mary's Journal on Legal Malpractice & Ethics

As the preamble to the Model Code of Judicial Conduct indicates, traditional notions of judicial ethics operate within a rule of law paradigm, which posits that the “three I’s” of judicial ethics—independence, impartiality, and integrity—enable judges to uphold the law. In recent decades, however, social science, public opinion, and political commentary suggest that appointed judges abuse their independence by disregarding the law and issuing rulings in accord with their biases and other extralegal impulses, while elected judges disregard the law and issue rulings popular with voters, all of which calls the future of the three I’s and judicial ethics itself …

Electronic Social Media: Friend Or Foe For Judges, M. Sue Kurita

St. Mary's Journal on Legal Malpractice & Ethics

The use of electronic social communication has grown at a phenomenal rate. Facebook, the most popular social networking website, has over 1,968,000,000 users—a number that has exponentially grown since its inception in 2004. The number of judges accessing and using electronic social media (ESM) has also increased. However, unlike the general population, judges must consider constitutional, ethical, technical, and evidentiary implications when they use and access ESM. The First Amendment forbids “abridging the freedom of speech” and protects the expression of personal ideas, positions, and views. However, the American Bar Association’s Model Code of Judicial Conduct and the Texas Code …

Reversal By Recusal? Comer V. Murphy Oil U.S.A., Inc. And The Needfor Mandatory Judicial Recusal Statements, Patrick A. Woods

The University of New Hampshire Law Review

[Excerpt] "In many cases, if not most, voluntary judicial recusal is both an efficient use of judicial resources and an exceptional safeguard to the legitimacy of the federal judiciary. However, voluntary judicial recusal poses its own unique problems when the withdrawing judge declines to issue a statement explaining the statutory grounds for his or her recusal. Unlike when a party seeks to disqualify a judge by motion—where the reasons for recusal will, at a minimum, be set out in the motion papers—when a judge voluntarily recuses, there is not necessarily any record created as to the reasons for the recusal. …

Gideon And The Effective Assistance Of Counsel: The Rhetoric And The Reality, David Rudovsky

All Faculty Scholarship

There is general agreement that the “promise” of Gideon has been systematically denied to large numbers of criminal defendants. In some cases, no counsel is provided; in many others, excessive caseloads and lack of resources prevent appointed counsel from providing effective assistance. Public defenders are forced to violate their ethical obligations by excessive case assignments that make it impossible for them to practice law in accordance with professional standards, to say nothing of Sixth Amendment commands. This worsening situation is caused by the failure of governmental bodies to properly fund indigent defense services and by the refusal of courts to …

Future Claimants And The Quest For Global Peace, Rhonda Wasserman

Articles

n the mass tort context, the defendant typically seeks to resolve all of the claims against it in one fell swoop. But the defendant’s interest in global peace is often unattainable in cases involving future claimants – those individuals who have already been exposed to a toxic material or defective product, but whose injuries have not yet manifested sufficiently to support a claim or motivate them to pursue it. The class action vehicle cannot be used because it is impossible to provide reasonable notice and adequate representation to future claimants. Likewise, non-class aggregate settlements cannot be deployed because future claimants …

Response To "One Year After Dondi: Time To Get Back To Litigating?", Thomas M. Reavley

Pepperdine Law Review

No abstract provided.

One Year After Dondi: Time To Get Back To Litigating?, William A. Brewer Iii, Francis B. Majorie

Pepperdine Law Review

No abstract provided.

Rambo Litigators: Pitting Aggressive Tactics Against Legal Ethics, Thomas M. Reavley

Pepperdine Law Review

No abstract provided.

The T-Rex Without Teeth: Evolving Strickland V. Washington And The Test For Ineffective Assistance Of Counsel, Robert R. Rigg

Pepperdine Law Review

In Strickland v. Washington the United States Supreme Court formulated the test for determining whether counsel in a criminal case is ineffective. When the Court decided Strickland it created a doctrine of enormous proportions, but with little impact--a legal tyrannosaurus rex without teeth. In the last decade, by using American Bar Association (“ABA”) standards to evaluate counsel's performance, the Court has given the T-Rex some sizable incisors. The purposes of this article are to: (1) determine how frequently the United States Supreme Court uses ABA standards in its decisions and describe briefly for what purposes the Court uses those standards; …

Execution In Virginia, 1859: The Trials Of Green And Copeland, Steven Lubet

Faculty Working Papers

This essay tells the story of Shields Green and John Copeland, two black men who joined John Brown's raid on Harper's Ferry. Along with Brown and several others, Green and Copeland were taken prisoner in the aftermath of the failed insurrection, and they were brought to trial in nearby Charlestown on charges of murder and treason. Unlike Brown, who was treated respectfully by his captors, Green and Copeland were handled roughly. Copeland in particular was subjected to a harsh interrogation that was criticized even by pro-slavery Democrats in the North. The black prisoners did, however, have the benefit of a …

The Story Of Mr. G.: Reflections Upon The Questionability Competent Client, Mark Spiegel

Mark Spiegel

No abstract provided.

Moral Character, Motive, And The Psychology Of Blame, Janice Nadler, Mary-Hunter Morris Mcdonnell

Faculty Working Papers

Blameworthiness, in the criminal law context, is conceived as the carefully calculated end product of discrete judgments about a transgressor's intentionality, causal proximity to harm, and the harm's foreseeability. Research in social psychology, on the other hand, suggests that blaming is often intuitive and automatic, driven by a natural impulsive desire to express and defend social values and expectations. The motivational processes that underlie psychological blame suggest that judgments of legal blame are influenced by factors the law does not always explicitly recognize or encourage. In this Article we focus on two highly related motivational processes – the desire to …

Understanding Caperton: Judicial Disqualification Under The Due Process Clause, Dmitry Bam

Faculty Publications

It is virtually impossible to discuss the Supreme Court’s decision in Caperton v. A.T. Massey Coal Co. without hearing some variant of the following response: “I can’t believe it was as close as it was.” And it does not matter whether you are chatting with your next-door neighbor who had never thought about judicial ethics in his life or discussing the case with a judicial-recusal expert. Nearly everyone seems to agree: Caperton was an “easy” case and that four justices dissented is an indication that there is something terribly wrong. Not only has Caperton elevated the issue of judicial impartiality …

The (F)Utility Of Rules: Regulating Attorney Conduct In Federal Court Practice, Judith A. Mcmorrow

Judith A. McMorrow

The problem is often decried: out-of-control attorneys, opportunists, cowboys, self-dealers, and overzealous prosecutors abusing the litigation process either for self-serving ends or from ideological zeal. But one person’s opportunist, cowboy, or self-dealer is another person’s zealous advocate. Lawyers want and need guidance on how to resolve issues that have competing claims to right behavior. The first place many lawyers look to find appropriate guidance are rules of ethics. Lawyers practicing in federal courts will find the search for rules particularly confusing. Unlike the Federal Rules of Civil and Criminal Procedure, federal courts do not operate with uniform ethics rules. District …

The Ethics Of The Adversary System, Greg S. Sergienko

ExpressO

This article considers many commonly advanced criticisms of the adversary system. It provides an analytic framework that includes the likely results of changed ethical rules and that distinguishes and analyzes separately two different possible goals of the system, seeking the truth and promoting justice. The article is also unusual in the range of supporting materials that it synthesizes, which includes contributions from economic theory, psychological studies, philosophy, and traditional legal ethics.

The article concludes that changes in ethical codes meant to increase lawyers' duty to promote the truth will have a perverse result, decreasing the accuracy of litigation. This will …

Can We Talk?: Removing Counterproductive Ethical Restraints Upon Ex Parte Communication Between Attorneys And Adverse Expert Witnesses, Stephen D. Easton

Indiana Law Journal

No abstract provided.

The Criminal Defense Lawyer's Reliance On Bias And Prejudice, Eva S. Nilsen

Faculty Scholarship

This Article is divided into three parts. Part I examines both the many contexts in which criminal defense lawyers and clinical students encounter bias and prejudice,¹² and the commonly-raised objections to its exploitation. Part II looks at the way the tactical use of bias relates to a lawyer's duty of zealous advocacy. Here, the Article focuses on whether existing ethics rules provide guidance for a lawyer's use of bias and whether proposed rules aimed at eliminating such advocacy would improve or diminish justice. This article argues against such efforts because they impinge on legitimate lawyering, and they may distract …

Truth, Justice, And The American Way: The Case Against The Client Perjury Rules, Jay S. Silver

Vanderbilt Law Review

In 1637, England's dreaded Court of Star Chamber pronounced the sentence: John Bastwick, a Puritan activist,' was to be pilloried twice with one ear cut off each time, imprisoned in perpetuity without "books, pen, ink, or paper," stripped of his university degrees, and fined 5,000. Shortly before, he had been escorted up a twisting staircase in Westminster Palace and into a dark, cavernous room with stars painted on the ceiling to be tried on charges of criminal libel for having penned a political tract critical of the government. According to Star Chamber procedure, since Bastwick's counsel refused to vouch for …

Punishing Ethical Violations: Aggravating And Mitigating Factors, H. Patrick Furman

Publications

No abstract provided.