Law Commons^™

Unauthorized Practice Or Untenable Prohibitions: Refining And Redefining Upl, Jan L. Jacobowitz, Peter R. Jarvis

St. Mary's Journal on Legal Malpractice & Ethics

An extraordinarily number of Americans either cannot afford or cannot find lawyers to assist them on civil legal matters. And an increasing number of Americans turn either to on-line apps or to nonlawyer professionals whose practices may overlap in whole or in part with what lawyers do. Although individuals receive much needed assistance, these alternative providers often confront allegations of committing the unauthorized practice of law. Unfortunately, the rules regarding the unauthorized practice of law (“UPL”) are both outdated and extraordinarily ambiguous. Moreover, UPL issues regarding alternative providers are distinct from questions concerning whether nonlawyers should be entitled to be …

The Disclosure Of Third-Party Litigation Funding Agreements Is Necessary To Resolve Ethical Dilemmas Created By The Third-Party Lender Industry, Gareth Purnell

St. Mary's Journal on Legal Malpractice & Ethics

No abstract provided.

Legal Ethics, Code Of Conduct For Barristers And The Overriding Objective In Criminal Trials, Zia Akhtar

St. Mary's Journal on Legal Malpractice & Ethics

The criminal lawyer has a duty to his client, to the court, and to the administration of justice. This must be accomplished within a framework of ethics comprised from codes of conduct regulating the legal profession. There are difficult ethical problems arising from conflicts between a lawyer’s responsibilities to clients, the legal system, and the disciplinary codes of the profession. In England, the barrister’s conduct is governed by the Bar Standard Board, and legal professionals must abide by the regulations that are imposed upon them when acting for their clients. The new Criminal Procedure Rules and …

To Write Or Not To Write: The Ethics Of Judicial Writings And Publishing, Nick Badgerow, Michael Hoeflich, Sarah Schmitz

St. Mary's Journal on Legal Malpractice & Ethics

Judges are bound by the Model Code of Judicial Conduct promulgated by the American Bar Association and adopted most states, including the federal judiciary. Within these rules governing judicial conduct, Judges owe duties to the public and to their calling, to be (and appear to be) objective, fair, judicious, and independent. When judges venture into the realm of extrajudicial writing—in the form of fiction novels, short stories, legal books, children’s books, and the like—they must consider the ethical bounds of that expression. The Model Code of Judicial Conduct imposes five main constraints upon extrajudicial writings: (a) a judge may not …

Why The Dobbs Draft Release Makes It Tougher To Teach Legal Ethics, Lynne Marie Kohm

St. Mary's Journal on Legal Malpractice & Ethics

No abstract provided.

Conduct Relating To The Practice Of Law: Aba Model Rule 8.4(G) And Its History In Light Of The Constitution, Nathan Moelker

St. Mary's Journal on Legal Malpractice & Ethics

The ABA adopted a revision to the Model Rules in 2016, prohibiting harassment and discrimination against a list of protected classes. The Rule, while well-intentioned and targeted at a serious problem, was broadly phrased to include a large category of protected speech and behavior. The Rule has already faced extensive and well-crafted challenges from the perspective of the Free Speech Clause. This article argues that two additional provisions of the First Amendment—the Free Exercise Clause and Freedom of Association—further illustrate the failure of the Rule and the alarmingly wide-ranging effects of such a prohibition on attorney conduct.

Mitigation Reports In Capital Cases: Legal And Ethical Issues, Russell Stetler, W. Bradley Wendel

St. Mary's Journal on Legal Malpractice & Ethics

The mitigation investigation that is essential in every capital case requires a multidisciplinary team. The duty to conduct this investigation is clearly established federal law, as well as an ethical obligation of counsel. The mitigation evidence that is uncovered is of vital importance to the rights of the individual accused of a capital offense, but also to reliable outcomes since all decisionmakers—including prosecutors, jurors, and judges—need the most complete and accurate picture of the person facing the punishment of last resort. This Article discusses some of the unique legal and ethical issues affecting the documentation of this investigation. The Authors …

Can They Handle The Truth? Teaching Law Students Ethics During A Time Of A Societal And Generational Divide, Michele N. Struffolino

St. Mary's Journal on Legal Malpractice & Ethics

Today’s law students and aspiring law students will enter law school having been bombarded with the message that they, as members of the voting public, are victims of “The Big Lie.” They likely also know that “The Big Lie” story consistently sent by politicians, activists, and others through all forms of informational outlets, including traditional and nontraditional media sources, has been found to be unsupported by facts. For legal educators, this is particularly concerning because many of those sending and supporting “The Big Lie” story are lawyers. Aspiring lawyers are left with the impression that zealous representation is relatively boundless …

Ethical Lawyering: The Role Of Honor, Conscience, And Codes, Vincent R. Johnson

St. Mary's Journal on Legal Malpractice & Ethics

No abstract provided.

Mental Health And The Workplace: How The Fmla And The Ada Should Work Harmoniously To Ensure Job Security And A Healthy Workplace For Employees With Mental Illness, Rafael Guzman

St. Mary's Journal on Legal Malpractice & Ethics

No abstract provided.

Law And Its Limits: Ethical Issues In Mary Shelley’S Frankenstein Or, The Modern Prometheus, David S. Caudill

St. Mary's Journal on Legal Malpractice & Ethics

The law and literature movement is frequently associated with the use of literary images of law as a point of reflection upon the ethical obligations of lawyers. Mary Shelley’s Frankenstein (1818)—the story of a young scientist whose unorthodox experiments end up creating the famed “monster”—is not, at first glance, a likely candidate for that enterprise. However, Dr. Frankenstein’s ambition and ruthless pursuit of knowledge has become a contemporary image of science out of control and the need for ethical limitations on scientific progress. Consequently, the novel raises currently important issues of regulating science and technology. Given the lawyer’s ethical obligation …

The Lawyer As Dream Enabler, Gerald Reamey

St. Mary's Journal on Legal Malpractice & Ethics

No abstract provided.

Judged By The (Digital) Company You Keep: Maintaining Judicial Ethics In An Age Of Likes, Shares, And Follows, John Browning

St. Mary's Journal on Legal Malpractice & Ethics

Just like lawyers, judicial use of social media can present ethical pitfalls. And while most scholarly attention has focused on either active social media conduct by judges (such as posting or tweeting) or on social media “friendships” between judges and others, this Article analyses the ethical dimensions of seemingly benign judicial conduct on social media platforms, such as following a third party or “liking,” sharing, or retweeting the online posts of others. Using real-world examples, this Article analyses how even such ostensibly benign conduct can create the appearance of impropriety and undermine public confidence in the integrity and impartiality of …

Patients, Corporate Attorneys, And Moral Obligations, Ioan-Radu Motoarcă

St. Mary's Journal on Legal Malpractice & Ethics

There are two main questions that any account of corporate lawyers’ moral obligations needs to answer: (1) Do corporate lawyers have moral obligations to third parties? and (2) In cases of conflict between obligations to the corporation and obligations to third parties, which should prevail? This Article offers answers to these questions in the context of lawyers working in medical corporations. I argue that lawyers do have moral obligations to third parties, and that in cases where patients’ rights are being violated by a medical company, patients’ rights should prevail. Consequently, attorney–client confidentiality rules should be relaxed to allow for …

Lawyers As Caregivers, Paula Schaefer

St. Mary's Journal on Legal Malpractice & Ethics

This Article argues that clients—much like patients in a healthcare setting—need their lawyers to be caregivers. The Article opens by developing a definition of caregiving in medicine and law. It then turns to five key components of caregiving in medicine, explaining the substantial research that this care is crucial for patient satisfaction, trust, and healing. Medical educators have drawn on this research to better prepare medical professionals to be excellent caregivers. The Article then explores the evidence that an attorney’s clients have the same needs and suffer similar harm when attorneys fail to meet these needs. Next, the Article turns …

The Sale Of Law Practice In Texas: The Need For A Rule, Ryan Hagens

St. Mary's Journal on Legal Malpractice & Ethics

Abstract forthcoming.

Lawyers, Mistakes, And Moral Growth, Vincent R. Johnson

St. Mary's Journal on Legal Malpractice & Ethics

Vincent R. Johnson, professor at St. Mary's University School of Law in San Antonio, Texas, reviews The Man in the Ditch: A Redemption Story for Today by Dallas attorney Mike H. Bassett.

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.

Chief Loophole Officer Or Chief Legal Officer: Inside Lehman Brothers—A Film Case Study About Corporate And Legal Ethics, Garrick Apollon

St. Mary's Journal on Legal Malpractice & Ethics

This Article discusses the continuing legal education (CLE) visual advocacy documentary-style program, which Garrick Apollon (author of this Article) researched and developed. The case study for this CLE documentary-style program is the film Inside Lehman Brothers—a documentary film by Jennifer Deschamps which chronicles the story of the Lehman whistleblowers. The film presents Mathew Lee, former senior vice president overseeing Lehman’s global balance sheet; Oliver Budde, former in-house counsel (associate general counsel) of the Lehman Brothers; and the racialized female mid-tier manager whistleblowers, who all paid a steep price in the 2008 American subprime mortgage crisis, while many of the …

Resolving The Anders Dilemmas: How & Why Texas Should Abandon The Anders Procedure, Michael J. Ritter

St. Mary's Journal on Legal Malpractice & Ethics

When an indigent defendant has a right to counsel for an appeal, and counsel believes the appeal is wholly frivolous, Texas has adopted the Anders v. California procedure that permits counsel to withdraw from representation and argue to the appellate court why their client’s appeal is wholly frivolous. This Article argues that, either by a change to the disciplinary rules or by judicial decision, Texas should abandon the Anders procedure as other states have. Doing so will promote the integrity of the right to counsel, avoid numerous conflicts and dilemmas created by the Anders procedure, and advance judicial efficiency and …

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 …

“Listserv Lawyering”: Definition And Exploration Of Its Utility In Representation Of Consumer Debtors In Bankruptcy And In Law Practice Generally, Josiah M. Daniel Iii

St. Mary's Journal on Legal Malpractice & Ethics

The author examines the communications and activities of bankruptcy lawyers participating in the listserv of the Bankruptcy Law Section of the State Bar of Texas and finds that those activities constitute a previously unrecognized form of “lawyering,” which he has defined as the work of lawyers in and through the legal system to accomplish the objectives of their clients. Review of specific postings about legal issues and practical problems by Texas bankruptcy lawyers, whose practices are primarily on behalf of individual debtors in cases under Chapters 7 and 13 of the Bankruptcy Code, and observations about the voluntary, collaborative, and …

Collared—A Film Case Study About Insider Trading And Ethics, Garrick Apollon

St. Mary's Journal on Legal Malpractice & Ethics

This Article discusses the visual legal advocacy documentary film, Collared, by Garrick Apollon (author of this Article). Collared premiered in fall 2018 to a sold-out audience at the Hot Docs Cinema in Toronto for the Hot Docs for Continuing Professional Education edutainment initiative. Collared features the story and reveals the testimony of a convicted ex-insider trader who is still struggling with the tragic consequences of “the most prolonged insider trading scheme ever discovered by American and Canadian securities investigators.” The intimate insights shared by former lawyer and reformed white-collar criminal, Joseph Grmovsek, serves as a painful reminder of the …

When Mental Health Meets “The One-Armed Man” Defense: How Courts Should Deal With Mccoy Defendants, Farid Seyyedi

St. Mary's Journal on Legal Malpractice & Ethics

The Supreme Court’s opinion in McCoy v. Louisiana held that a defendant has a constitutional right to insist their attorney not concede guilt as to any element of an offense, even if doing so is the only reasonable trial strategy to give the defendant a chance at life imprisonment instead of the death penalty. Under McCoy’s holding, a defendant can insist on maintaining their innocence—even in the face of overwhelming evidence—and force their attorney to pursue a defense that will land them on death row. The Supreme Court’s holding makes clear that a strategic concession of guilt at trial—over …

Punishing The Victim: Model Rule 1.16(A)(2) And Its Relation To Lawyers With Anxiety, Depression, And Bipolar Disorder, Daniel G. Esquivel

St. Mary's Journal on Legal Malpractice & Ethics

Abstract forthcoming.

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

St. Mary's Journal on Legal Malpractice & Ethics

Abstract forthcoming.

Ethical Issues With Lawyers Openly Carrying Firearms, Dru Stevenson

St. Mary's Journal on Legal Malpractice & Ethics

Ethical concerns arise when lawyers openly carry firearms to adversarial meetings related to representation, such as depositions and settlement negotiations. Visible firearms introduce an element of intimidation, or at least the potential for misunderstandings and escalation of conflicts. The adverse effects of openly carried firearms can impact opposing parties, opposing counsel, the lawyer’s potential clients, witnesses, and even judges and jurors encountered outside the courtroom. The ABA’s Model Rules of Professional Conduct in their current form include provisions that could be applicable, such as rules against coercion and intimidation, but there is no explicit reference to firearms. Several reported incidents …

Complicity In The Perversion Of Justice: The Role Of Lawyers In Eroding The Rule Of Law In The Third Reich, Cynthia Fountaine

St. Mary's Journal on Legal Malpractice & Ethics

A fundamental tenet of the legal profession is that lawyers and judges are uniquely responsible—individually and collectively—for protecting the Rule of Law. This Article considers the failings of the legal profession in living up to that responsibility during Germany’s Third Reich. The incremental steps used by the Nazis to gain control of the German legal system—beginning as early as 1920 when the Nazi Party adopted a party platform that included a plan for a new legal system—turned the legal system on its head and destroyed the Rule of Law. By failing to uphold the integrity and independence of the profession, …

Ethical Considerations For Prosecutors: How Recent Advancements Have Changed The Face Of Prosecution, Joshua L. Sandoval

St. Mary's Journal on Legal Malpractice & Ethics

The prosecutor acts as a minister of justice with sweeping discretion to charge an individual with a crime, plea a case in a manner supported by the strength of the evidence, proceed to trial on a case, and even dismiss a case. He must balance the interest of the victim, the community, and the constitutional rights of the accused in every decision he makes.

This article will explore the role of the American prosecutor and discuss various ethical issues encountered on a daily basis. After a brief introduction, the author will succinctly discuss the history of the prosecutor and will …