Law Commons^™

Rediscovering Fuller’S Legal Ethics, David Luban

Georgetown Law Faculty Publications and Other Works

Lon Fuller is the greatest American philosopher to devote serious attention to the ethics of lawyers. Indeed, he is arguably the greatest philosopher since Plato to do so. I don't suggest that Fuller was a philosopher of Plato's magnitude, but it is not preposterous to mention Plato and Fuller in the same breath. Their unique affinity was that both were thinkers whose broader philosophical concerns may plausibly be said to arise from reflections on the craft of law. In Plato's case, the effort to understand forensic argument, and to analyze why opinions about justice might be persuasive without being true, …

Toward A Theory Of Reciprocal Responsibility Between Clients And Lawyers: A Comment On David Wilkins’ Do Clients Have Ethical Obligations To Lawyers? Some Lessons From The Diversity Wars, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

On my plane flight to attend the American Association of Law Schools meeting at which Professor David Wilkins presented his paper, Do Clients Have Ethical Obligations to Lawyers? Some Lessons From the Diversity Wars, the pilot requested passengers to "assist the flight attendants in their principal duty of providing safety to all passengers," following a recent incident with mid-flight turbulence in which one person died and several were injured. The pilot reminded us that "service" was only a secondary function of the flight attendants, with their principal duty being to ensure that all of us traveled and arrived safely, …

Independent Counsel And Vigorous Investigation And Prosecution, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

This essay draws on the examples of Watergate and Iran-Contra to offer a new perspective on Independent Counsel and their ability to investigate and prosecute high-level wrongdoing. The current consensus is that an Independent Counsel, appointed by judges of the special court pursuant to the Ethics in Government Act, will invariably investigate and prosecute crimes more vigorously than a Special Prosecutor appointed by the President or the Attorney General. Watergate and Iran-Contra suggest, however, that there are institutional and political factors that make analysis of the comparative tendencies of the two types of prosecutors more complex and dependent on circumstance. …

Ethics In Adr Representation: A Roadmap Of Critical Issues, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

Much ink has been spilled in recent years on the ethics and standards that should be applied to third party neutrals acting as mediators, arbitrators or evaluators in a variety of "alternative" (or as we now say, "appropriate") dispute resolution fora. Much less ink has been spilled on what could be an even more difficult issue: Should different ethical standards be applied to lawyers who serve as "representatives" inside ADR processes than the usual rules applied to lawyers in their roles as "advocates" or "counselors" in the more traditional adversary system?

Ethics In Alternative Dispute Resolution: New Issues, No Answers From The Adversary Conception Of Lawyers’ Responsibilities, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

The romantic days of ADR appear to be over. To the extent that proponents of ADR, like myself, were attracted to it because of its promise of flexibility, adaptability, and creativity, we now see the need for ethics, standards of practice and rules as potentially limiting and containing the promise of alternatives to rigid adversarial modes of dispute resolution. It is almost as if we thought that anyone who would engage in ADR must of necessity be a moral, good, creative, and, of course, ethical person. That we are here today is deeply ironic and yet, also necessary, as "appropriate" …

Introduction: What Will We Do When Adjudication Ends? A Brief Intellectual History Of Adr, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

I begin by thanking the UCLA Law Review, and particularly Darrin Mollet and Bryce Johnson, for seeing the timeliness of the topic of alternative dispute resolution and organizing this Symposium-collecting some of the best thinkers, writers, and practitioners in the field to discuss, among other things, the economics of ADR, the role of lawyers, courts, and judges in ADR, and the application of ADR to a variety of substantive legal and regulatory problems. In this Introduction, I would like to introduce the topics and the authors, and put them in the larger context of the movement that is now called …

Codes And Virtues: Can Good Lawyers Be Good Ethical Deliberators?, Heidi Li Feldman

Georgetown Law Faculty Publications and Other Works

Regardless of its specific contents, any black letter statutory codification regulating lawyers' conduct will be flawed as an instrument of ethics for lawyers. This is the central thesis of this Article. It is motivated by the idea that typical statutory prohibitions and permissions are likely to stunt sentimental responsiveness, a key feature of good ethical deliberation. Additionally, a certain technocratic mode of legal analysis heightens this tendency. Although other styles of lawyering might better engender sentimental responsiveness, statutory codes of lawyers' ethics do not invite this style as readily as a welldeveloped common law of lawyers' ethics would.

Beyond Autonomy: Coercion And Morality In Clinical Relationships, Maxwell Gregg Bloche

Georgetown Law Faculty Publications and Other Works

This article considers the problem of line-drawing between autonomy-preserving and autonomy-negating influence in clinical relationships. The author’s purpose is not to propose particular boundaries, either with respect to reproductive decisions by HIV-infected women or for other clinical choices. Rather, he attempts to shed some light on what drives our disputes about whether one or another influence method is compatible with autonomous choice.

The author argues that such disagreements reflect underlying conflicts between normative commitments, and that resolving these conflicts is essential to settling controversies over whether particular influences unduly interfere with autonomous choice. Alternative understandings of the prerequisites for autonomous …

Enriching The Legal Ethics Curriculum: From Requirement To Desire, Heidi Li Feldman

Georgetown Law Faculty Publications and Other Works

The problem has become all too familiar: Acting at least in part from noble motives, the American Bar Association ("ABA") requires all law students at ABA-accredited law schools to take a course in "professional responsibility." Every accredited school offers a course or courses that enable students to fulfill this requirement. Under these circumstances, the professional responsibility course can easily assume the character of high school drivers' education or health classes: It often becomes an obligatory exercise, in which students think they must woodenly learn the maxims of the ABA Code of Conduct or Rules of Professional Responsibility. Faced with this …

Ethics And The Settlement Of Mass Torts: When The Rules Meet The Road, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

The settlement of mass torts through the class action device presents some difficult and troubling issues, including important questions of due process, fairness, justice, efficiency, equality, equity, and ethics. In this context, some of these foundational values conflict with each other and must be "resolved" by judges who must decide actual cases. In analyzing the applicable laws and rules (class action rules, constitutional provisions, and ethics rules) we find answers or suggestions that are often ambiguous or contradictory. All of these unresolved ambiguities raise the question of whether mass torts are any different from any number of difficult cases our …

The Questions Of Authority, Frederick Schauer

Philip A. Hart Memorial Lecture

In 1992, Professor, Frederick Schauer of Harvard University, delivered the Georgetown Law Center’s twelfth Annual Philip A. Hart Memorial Lecture: "Two Cheers for Authority: Should Officials Obey the Law?."

Frederick Schauer is a David and Mary Harrison Distinguished Professor of Law at the University of Virginia. Previously he served for 18 years as Frank Stanton Professor of the First Amendment at the John F. Kennedy School of Government, Harvard University, where he has served as academic dean and acting dean, and before that was a Professor of Law at the University of Michigan. He is the author of The Law …

The "Gag Rule" Revisited: Physicians As Abortion Gatekeepers, Maxwell Gregg Bloche

Georgetown Law Faculty Publications and Other Works

To the surprise of many and the dismay of some, the U.S. Supreme Court took it upon itself last term to proclaim a national compromise on the question of abortion. The Court's announced truce, an elaboration on Justice O'Connor's "undue burden" idea, is pragmatic in design but unlikely to prove stable in practice. The three justices who spoke for the Court disparaged Roe with reluctant praise, then upheld its outer shell on the ground that social expectations and the need to sustain the appearance of the rule of law made it impolitic to do otherwise. This awkward doctrinal invention seems …

Multiple Representation Of Targets And Witnesses During A Grand Jury Investigation, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

The propriety of one attorney representing several clients whose conduct is under investigation by a grand jury has been explored only superficially by the courts and the American Bar Association's Code of Professional Responsibility. Prosecutors nonetheless have often moved to disqualify counsel representing multiple clients in recent years, basing their motions both on the client's interest in loyal and competent representation and on the government's interest in the unimpeded progress of the grand jury investigation. Professor Tague discusses the factors that counsel should consider in deciding whether to undertake multiple representation at the grand jury stage, including strategy, ethics, and …

Multiple Representation And Conflicts Of Interest In Criminal Cases, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

Conflicts of interest resulting from multiple representation in criminal cases impose heavy burdens on all the participants in the criminal justice system. Although the Supreme Court in Holloway v. Arkansas refused to hold that joint representation is unconstitutional per se, it recently approved Proposed Rule of Criminal Procedure 44(c), which would require trial courts to protect a defendant's right to counsel in this situation. After discussing the current approaches of the courts to the problems presented by joint representation, Professor Tague analyzes the proposed rule. He criticizes the proposed rule for its failure to define the role of the trial …

Federal Habeas Corpus And Ineffective Representation Of Counsel: The Supreme Court Has Work To Do, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

The availability of federal habeas corpus relief for state criminal defendants has always borne a complex relationship to state rules barring defendants from litigating constitutional claims in state court because of procedural defaults in raising those claims. The Warren Court's landmark attempt to resolve this relationship was the 1963 decision in Fay v. Noia, which asserted that a state procedural forfeiture rule could not bar federal habeas review of a constitutional claim unless the defendant had "deliberately bypassed" the procedural opportunity to raise the claim; the Court defined "deliberate bypass" in terms of a defendant's intentional and voluntary relinquishment of …

The Attempt To Improve Criminal Defense Representation, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

Improvement of criminal defense representation is one of the most critical problems that faces the criminal justice system. The problem is extensive; some attorneys are frequently ineffective and probably all attorneys are occasionally inadequate because of error, overwork, personal problems or ethical conflicts.

The defendant's only remedy against his attorney's ineffectiveness is through direct appeal or collateral post-conviction attack. This article discusses the reasons why courts cannot improve defense representation through these avenues of review. Deep disagreement among judges about the purpose of post-conviction review has crippled any attempt at improvement. The key unresolved question is whether the standard for …