Law Commons^™

Minnesota V. Philip Morris, Inc.: An Important Legal Ethics Message Which Neglects The Public Interest In Product Safety Research, James R. Mccall, Edward J. Imwinkelried

Faculty Scholarship

No abstract provided.

Prying, Spying, And Lying: Intrusive Newsgathering And What The Law Should Do About It, Lyrissa Barnett Lidsky

UF Law Faculty Publications

The media's use of intrusive newsgathering techniques poses an increasing threat to individual privacy. Courts currently resolve the overwhelming majority of conflicts in favor of the media. This is not because the First Amendment bars the imposition of tort liability on the media for its newsgathering practices. It does not. Rather, tort law has failed to seize the opportunity to create meaninful privacy protection. After surveying the economic, philosophical, and practical obstacles to reform, this Article proposes to rejuvenate the tort of intrusion to tip the balance between privacy and the press back in privacy's direction. Working within the framework …

The Legal And The Ethical In Legal Ethics: A Brief Rejoinder To Comments On The Practice Of Justice, William H. Simon

Faculty Scholarship

We have here, not the clash of opposites, but a series of family quarrels within what you might call the Party of Aspiration in legal ethics. My seven allies and I all favor lawyers' ethic of more complex judgment, and more responsibility to nonclients than the currently dominant one. The differences among us are not large from the broadest perspective, but they involve issues that are quite important to the elaboration of the sort of alternative ethic we would like to see.

I am enormously grateful for the care and attention the commentators have taken. They have frequently stated my …

Virtuous Lying: A Critique Of Quasi-Categorical Moralism, William H. Simon

Faculty Scholarship

Popular and professional moralists have a tendency to over-condemn lying. This Article is a critique of that tendency and the more general outlook it exemplifies, which I call Quasi-Categorical Moralism. I begin with an illustration from my own experience of morally appropriate lying that is condemned by the legal profession's ethics norms. I proceed to a critical examination of the arguments against lying in what is perhaps the best known contemporary work on professional ethics – Sissela Bok's Lying. I then explore the more sympathetic treatment of lying in a broad range of literary and philosophical works typically ignored …

A Proposal To Require Lawyers To Disclose Information About Procedural Matters, William H. Fortune

Law Faculty Scholarly Articles

In the absence of a rule clearly requiring disclosure, a lawyer is obligated not to disclose information which is adverse to the interests of a client. However, judges should be able to expect lawyers to dislose information about procedural matters. This Article argues that Model Rule of Professional Conduct 3.3 should be amended to require disclosure of information about procedural matters. Part I describes the events in Potter v. Eli Lilly & Co., a case involving a secret settlement related to Prozac. Part II makes the argument for a rule requiring disclosure of procedural information. Part III describes how …

Renewed Introspection And The Legal Profession, Eugene R. Gaetke

Law Faculty Scholarly Articles

As the twentieth century draws to a close, the legal profession again immersed in a process of self-assessment, reflection, and reform. Operating on several fronts, various constituent elements of the bar have recently completed or have underway significant projects relating to the law of lawyering.

Two efforts stand out in particular. For more than a decade, the American Law Institute has labored in the production of a new Restatement of the Law Governing Lawyers, and the organization stands now on the brink of that monumental work's publication. Equally significant, the American Bar Association has again undertaken a comprehensive review of …

The Leak And The Craft: A Hard Line Proposal To Stop Unaccountable Disclosures Of Law Enforcement Information, John Q. Barrett

Faculty Publications

The critics of Kenneth W. Starr accused him, in the five-plus years that he served as the multi-tasked Independent Counsel, of many failings, mistakes, and improprieties. One of the most prevalent charges was one that has significance to lawyers and resonates with the general public's sense of bad behavior by prosecutors: the allegation that Starr and/or members of his staff "leaked" information. This general accusation was, of course, imprecise. It also might have been overbroad. Prosecutorial "leaks" include such plain illegalities as disclosing grand jury information to the media or other unauthorized persons, and also the much less regulated practice …

In-House Live-Client Clinical Programs: Some Ethical Issues, James E. Moliterno

Faculty Publications

No abstract provided.

A Primer On Mdps: Should The No Rule Become A New Rule, Laurel Terry

Faculty Scholarly Works

This article is the second of four major articles or book chapters that I have written about MDPs. "MDPs" refers to multidisciplinary partnerships or multidisciplinary practices between lawyers and nonlawyers. Prior to 1998, virtually all U.S. states had lawyer discipline rules that prohibited a lawyer from sharing legal fees with a nonlawyer or practicing law in partnership with a nonlawyer. In 1998, however, the American Bar Association created a Commission on Multidisciplinary Practice to reconsider these rules. One impetus for the creation of this Commission was the increasingly large numbers of lawyers who were working for the Big 5 Accounting …

Review Of "Trying Cases: A Life In The Law" By Haliburtan Fales Ii, Jay C. Carlisle

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

A Nightmare On Main Street (Part Mxl): Freddie Joins An Accounting Firm, Gary A. Munneke

Elisabeth Haub School of Law Faculty Publications

The subject of multidisciplinary practice (“MDP”) has intrigued me for well over a decade. The topic has led me into new areas of research, and sometimes into the cross hairs of colleagues in the legal profession. My views have not always represented the mainstream of thinking among lawyers, and that is reflected in the title of my talk today: “A Nightmare on Main Street (Part MXL): Freddie Joins an Accounting Firm.”

A Proposal To Require Lawyers To Disclose Information About Procedural Matters, William H. Fortune

Law Faculty Scholarly Articles

In the absence of a rule clearly requiring disclosure, a lawyer is obligated not to disclose information which is adverse to the interests of a client. However, judges should be able to expect lawyers to disclose information about procedural matters. This Article argues that Model Rule of Professional Conduct 3.3 should be amended to require disclosure of information about procedural matters. Part I describes the events in Potter v. Eli Lilly & Co., a case involving a secret settlement related to Prozac. Part II makes the argument for a rule requiring disclosure of procedural information. Part III describes how …

The Professional And The Liar, Richard H. Underwood

Law Faculty Scholarly Articles

Many individuals in society think that all lawyers are liars. Some think lawyers are allowed to lie. Regrettably, some American lawyers apparently think so too. In the United States there has been, and continues to be, a troubling lack of professional consensus when it comes to litigating a case. Indeed, lawyers who are neither corrupt nor insensitive have been accused of arguing that the elicitation of false testimony, and the use of it, is a professional responsibility. Fairness also calls for some acknowledgment that even the most cunning, zealous, and successful of trial lawyers have agonized over such moral choices. …

Ethics And Professionalism In Non-Adversarial Lawyering, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

Traditional notions and rules of professionalism in the legal profession have been premised on particular conceptions of the lawyer's role, usually as an advocate, occasionally as a counselor, advisor, transaction planner, government official, decision maker and in the recent parlance of one of this symposium's participants-a "statesman [sic]. '" As we examine what professionalism means and what rules should be used to regulate its activity, it is important to ask some foundational questions: For what ends should our profession be used? What does law offer society? How should lawyers exercise their particular skills and competencies?

Limited Representation: Helping Clients While Protecting Yourself, Mary E. Berkheiser

Scholarly Works

The lawyer-client relationship is defined by what the client retains the lawyer to do, and that retention may be as general or specific as the lawyer and client desire. The Nevada Supreme Court has recognized that even with regard to “a particular transaction or dispute, an attorney may be specifically employed in a limited capacity.” This freedom to contract for broader or narrower representation benefits both lawyers and clients. No lawyer can be a true generalist anymore, and most clients cannot afford the full range of representation that the legal profession offers on a single matter.

Moral Bankruptcy: Modeling Appropriate Attorney Behavior In Bankruptcy Cases, Nancy B. Rapoport

Scholarly Works

This essay discusses how important it is for lawyers, especially senior lawyers, to model appropriate behavior so that the newest lawyers learn how best to behave professionally.

Living "Top-Down" In A "Bottom-Up" World: Musings On The Relationship Between Jewish Ethics And Legal Ethics, Nancy B. Rapoport

Scholarly Works

This article discusses the differences between how Jewish ethics are disseminated and how legal ethics are created, and it walks the reader through some classic examples of the conflicts between the two.

Representing Defendants On Charges Of Economic Crime: Unethical When Done For A Fee, David Orentlicher

Scholarly Works

No abstract provided.

Speaking Truth To Powerlessness, Howard Lesnick

All Faculty Scholarship

No abstract provided.

Preempting Oneself: The Right And The Duty To Forestall One's Own Wrongdoing, Leo Katz

All Faculty Scholarship

Economists and philosophers working on problems of rational choice have for some time been concerned with various puzzles raised by so-called "Ullysean" configurations: actors who rationally cause themselves to act irrationally. (e.g., the person who swallows Thomas Schelling's famous irrationality pill to preempt an attempted robbery). What has attracted less attention is that these configurations present fascinating problems for morality, most especially for non-consequentialist morality. This article undertakes the exploration of some of these problems and the implications they hold for the morality of preemptive detention, preemptive self-defense, the creation of prophylactic crimes (like our drug laws) and a variety …

Lying To Protect Privacy, Anita L. Allen

All Faculty Scholarship

No abstract provided.

Corporate-Family Conflicts, Charles W. Wolfram

Cornell Law Faculty Publications

Blue-Chip Bilking: Regulation Of Billing And Expense Fraud By Lawyers, Lisa G. Lerman

Scholarly Articles

This study of recent cases of billing and expense fraud confirms the views of David Wilkins, Ted Schneyer, and many other scholars that the disciplinary system performs only one of several needed regulatory functions. The cases demonstrate the need for public and private regulatory responses that not only receive and investigate complaints, but also provide education, prevention, proactive monitoring, and remediation. Lawyers who engage in billing and expense fraud should be fired, disbarred, prosecuted on criminal charges, sued for malpractice. If the public and private organizations that can attend to this problem take it seriously, the norms in the legal …

Possible Solutions: Policy Tools To Achieve Flexibility To Meet New Conditions, Preliminary Thoughts For Coping With Future Droughts, Maria O'Brien

Faculty Scholarship

The following comments are premised on the author's experience with the Middle Rio Grande Conservancy District (Conservancy) in New Mexico and its endeavor to implement a water banking system. Background information about the Conservancy is helpful for an understanding of its efforts at water banking.

Shortage And Tension On The Upper Rio Grande: Protecting Endangered Species During Times Of Drought, Comments From The Perspective Of The Middle Rio Grande Conservancy District, Maria O'Brien

Faculty Scholarship

Looking back at the drought of 1996 and at the efforts to protect endangered species in the midst of the drought, the most glaring fact remains that the water managers and users of the Rio Grande were in crisis management. In fact, despite some efforts, if the drought had manifested with equal or greater intensity in 1997, we would have remained in crisis management. Hence, as we move forward and examine lessons learned, the most vital premise we must return to is the imperative for balance as we undertake the precarious task of allocating water to protect endangered species, serve …

Lies And Law, Robert F. Nagel

Publications

No abstract provided.

Taking Problem Solving Pedagogy Seriously: A Response To The Attorney General, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

Attorney General Janet Reno has taken seriously the notion that lawyers should make the world better than they find it, that problems should be prevented, where possible, before they occur, and that law should serve the needs of the people and deliver long-term justice. I want to suggest some concrete ways in which we can take her challenges seriously.

Should A Christian Lawyer Sign Up For Simon's Practice Of Justice?, Thomas L. Shaffer

Journal Articles

In The Practice of Justice, Professor William H. Simon describes justice in a way that differs from the way the Bible describes justice. The big difference is not so much what justice requires (although there is some difference there) as (i) how people decide what justice requires, and (ii) who the "people" are who decide what justice requires. Some of us Christians claim to understand "justice" as the Bible understands it. It may make a difference that, for biblical people, "justice" is righteousness, and righteousness, the Torah teaches, and Rabbi Hillel teaches, and Rabbi Jesus teaches, is practice following upon …

Towering Figures, Enigmas, And Responsive Communities In American Legal Ethics, Thomas L. Shaffer

Journal Articles

The first thing Niebuhr and Guttman are telling us to do is to look around and figure out what is going on around us. With that in mind, it has seemed to me that, at the simplest, a lawyer (or a journalist) functions in at least four communities, any one of which might be a community to talk about lawyers' moral questions in.

My inquiry, then, is an inquiry in communitarian legal ethics, using a Guttman-Niebuhr focus on responsibility. I infer a further question about communities of moral discernment—that is, not only where a modern lawyer is responsible but also …

What Is The Common Good, And Why Does It Concern The Client's Lawyer?, John M. Finnis

Journal Articles

Why is anything of real concern to any of us? Because, besides our simply emotional motives, we have reasons for action (which may be supported or opposed by our emotions). What are reasons for action? Some are instrumental, means to further ends: I have reason to start reading this paper to you, and you had reason to come back into the room to hear it. What reasons? Well, doing so is my contribution to this symposium's reflection on its subject-matter. That reflection, in turn, is intended to be instrumental in promoting a wider and deeper understanding of an important set …