Law Commons^™

Interpreting Ethics Rules, Samuel J. Levine

Scholarly Works

This Article explores the interpretation of ethics rules through the prism of two rules that have been the subject of ongoing controversy and contention: Rule 4.2, the “no-contact” rule, which prohibits a lawyer from communicating with a represented client absent the consent of that client’s lawyer, and Rule 8.4(g), which prohibits various forms of discrimination and harassment. Each of these rules provides a model for a wider examination of different interpretive approaches to ethics rules, grounded in different attitudes toward the features and functions of ethics codes. Specifically, the debate revolving around Rule 4.2 illustrates competing approaches to interpreting a …

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.

Law Library Blog (October 2023): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

The Appearance Of Appearances, Michael Ariens

Faculty Articles

The Framers argued judicial independence was necessary to the success of the American democratic experiment. Independence required judges possess and act with integrity. One aspect of judicial integrity was impartiality. Impartial judging was believed crucial to public confidence that the decisions issued by American courts followed the rule of law. Public confidence in judicial decision making promoted faith and belief in an independent judiciary. The greater the belief in the independent judiciary, the greater the chance of continued success of the republic.

During the nineteenth century, state constitutions, courts, and legislatures slowly expanded the instances in which a judge was …

Anti-Discrimination Ethics Rules And The Legal Profession, Michael Ariens

Faculty Articles

“Reputation ought to be the perpetual subject of my Thoughts, and Aim of my Behaviour. How shall I gain a Reputation! How shall I Spread an Opinion of myself as a Lawyer of distinguished Genius, Learning, and Virtue.” So wrote twenty-four-year-old John Adams in his diary in 1759. He had been a licensed lawyer for just three years at that time and had already believed himself to be hounded by “Petty foggers” and “dirty Dablers in the Law”—unlicensed attorneys who, Adams claimed, fomented vexatious litigation for the fees they might earn.

Adams believed his embrace of virtue, along with genius …

The Fall Of An American Lawyer, Michael Ariens

Faculty Articles

John Randall is the only former president of the American Bar Association to be disbarred. He wrote a will for a client, Lovell Myers, with whom Randall had been in business for over a quarter-century. The will left all of Myers’s property to Randall, and implicitly disinherited his only child, Marie Jensen. When Jensen learned of the existence of a will, she sued to set it aside. She later filed a complaint with the Iowa Committee on Professional Ethics and Conduct. That complaint was the catalyst leading to Randall’s disbarment.

Randall had acted grievously in serving as Lovell Myers’s attorney. …

Going Beyond Rule 8.4(G): A Shift To Active And Conscious Efforts To Dismantle Bias, Meredith R. Miller

Journal of Race, Gender, and Ethnicity

No abstract provided.

Model Rule 8.4(G) And The Profession's Core Values Problem, Michael Ariens

Faculty Articles

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 …

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 …

A Rebuttal To Kinsler's And To Anderson And Muller's Studies On The Purported Relationship Between Bar Passage Rates And Attorney Discipline, William Wesley Patton

St. John's Law Review

(Excerpt)

Because of the escalating cost of legal education and the recent decline in bar passage rates among ABA approved law schools, some analysts have reasonably attempted to determine the social costs of legal education. Many have attempted to place the blame on segments of the legal education marketplace. The complicated relationships among the policies of providing more access to justice, increasing minority representation in the bar, and protecting the public from shoddy law practice have recently inflamed academic debate. In the rush for assessing blame, some analysts have published empirically flawed reports that have received a great deal of …

Ethics 20/20 Successfully Achieved Its Mission: It "Protected, Preserved, And Maintained", James E. Moliterno

James E. Moliterno

The legal profession tends to look inward and backward when faced with crisis and uncertainty. The legal profession could make greater advances by looking outward and forward to find in society and culture the causes of and connections with the legal profession’s crises. Doing so would allow the profession to grow with society, solve problems with rather than against the flow of society, and be more attuned to the society the profession claims to serve.

Making The Modern American Legal Profession, 1969–Present, Michael Ariens

St. Mary's Law Journal

The American legal profession has changed dramatically over the past half-century greatly due to the solution and problem of “scale.” This was most noticeable after the American Bar Association’s adoption of the Code of Professional Responsibility. The reputation of lawyers and the legal community would continue to evolve in the eyes of the public. As such, the demand for lawyers and large law firms who had the capacity and means to handle such vast and varied issues would present itself. The increasing demand from large law firms over the years led to unprecedented growth and impact to the way in …

When Less Is More: The Limitless Potential Of Limited Scope Representation To Increase Access To Justice For Low- To Moderate-Income Individuals, Kristy D'Angelo-Corker

Marquette Law Review

Both attorneys and judges take an oath to promote justice for all, however,

that is not the case in our current system. The world we live in today looks

incredibly different than it did just a few years ago and, as a result, the practice

of law must adapt to meet the changing needs of individuals in this new era.

Notably, the access to justice problem, specifically affecting low- to moderateincome

individuals, requires a shift in the availability of legal services

provided. Limited scope representation, which has been accepted by the

American Bar Association for 20+ years, where an attorney …

Ethics In The Legal Industry, Michael Ariens

Faculty Articles

A brief item in the Hearsay section of the June 2017 ABA Journal was headlined "2%." This number indicated an increase in the percentage of lawyers, from 2012 to 2016, "who worked remotely within the legal industry." Making one's "office" a location other than the physical space leased or owned by oneself or by an employer is hardly news, even as applied to the work of lawyers. Lawyers know as well as anyone that technology allows one to work almost anywhere and, unfortunately, almost any time. What is striking in this brief news item is the use by the flagship …

The Uneasy History Of Experiential Education In U.S. Law Schools, Peter A. Joy

Dickinson Law Review (2017-Present)

This article explores the history of legal education, particularly the rise of experiential learning and its importance. In the early years of legal education in the United States, law schools devalued the development of practical skills in students, and many legal educators viewed practical experience in prospective faculty as a “taint.” This article begins with a brief history of these early years and how legal education subsequently evolved with greater involvement of the American Bar Association (ABA). With involvement of the ABA came a call for greater uniformity in legal education and guidelines to help law schools establish criteria for …

The Path To Lawyer Well-Being: Practical Recommendations For Positive Change (The Report Of The National Task Force On Lawyer Well-Being), Part Ii, Recommendations For Law Schools, David Jaffe

David Jaffe

Poverty, The Great Unequalizer: Improving The Delivery System For Civil Legal Aid, Latonia Haney Keith

Catholic University Law Review

When individuals in the United States face civil justice issues, they are not entitled to legal counsel and therefore must secure paid counsel, proceed pro se or qualify for free legal assistance. As a result of the economic downturn, the number of Americans who are unable to afford legal counsel is now at an all-time high. In response to this ever-widening justice gap, the public interest community has launched multiple initiatives to supplement the underfunded legal aid system. Though valiant, this article argues that this approach has unfortunately created a complex, fragmented and overlapping delivery system for legal aid. This …

"G" Is More Than "Pc" For Georgia: Why Prospective Adoption Of Aba Model Rule 8.4(G) Is A Viable Measure To Combat Discrimination And Harassment, Katie M. Wroten

Georgia Law Review

In August 2016, the American Bar Association
passed Model Rule 8.4(g) into its Model Rules of
Professional Conduct. The rule declares it misconduct
for a lawyer to harass or discriminate based on race,
sex, religion, national origin, ethnicity, disability, age,
sexual orientation, gender identity, marital status or
socioeconomic status. The scope of the rule extends to
lawyers' conduct outside of the courtroom, including
conduct related to the practice of law. The rule aims to
eliminate bias in the profession and justice system.
The Supreme Court of Georgia has yet to adopt any
version of Model Rule 8.4(g) in its comment …

Evolving Standards Of Reasonableness: The Aba Standards And The Right To Counsel In Plea Negotiations, Margaret Colgate Love

Fordham Urban Law Journal

The ABA Criminal Justice Standards have been recognized by the Supreme Court as one of the most important sources for determining lawyer competence in right to counsel cases. Because the constitutional test under the Sixth Amendment is whether defense counsel’s performance was “reasonable” under “prevailing professional norms,” the standard of competence is necessarily an evolving one. The Supreme Court's decision in Padilla v. Kentucky underscores the defense bar’s stake in participating in the ABA standard-setting process to guide the development of defense counsel's obligations in plea negotiations. In addition, to the extent the courts give the ABA Standards credence in …

A Critical Assessment Of The Model Standards Of Conduct For Mediators (2005): Call For Reform, Omer Shapira

Marquette Law Review

Over the years, commentators have raised concerns about some aspects of the Model Standards, for example, their failure to adequately guide mediators in situations of competing values, and the vagueness of their substantive provisions. No work to date has exposed the Model Standards to a systematic and comprehensive assessment, which is necessary for an evaluation of their adequacy as a coherent statement of the fundamental ethical guidelines for mediators, and for the development of a viable alternative to them. Ten years after the adoption of the revised Model Standards in 2005, this Article comes to fill the gap in the …

Kill The Dinosaurs, And Other Tips For Achieving Technical Competence In Your Law Practice, Antigone Peyton

Richmond Journal of Law & Technology

It is a challenge to practice law in the digital age. This is particularly true when a practice involves significant e-Discovery, Intellectual Property, and technology law—areas in which technical issues merge with legal ones. One of the major challenges of bringing a law practice up to twenty-first-century standards relates to dinosaur thoughts, a.k.a. an “old ways are best” mentality.

The Aba Model Code Revisions And Judicial Campaign Speech: Constitutional And Practical Implications, Howland W. Abramson, Gary Lee

Touro Law Review

No abstract provided.

Ethics 20/20 Successfully Achieved Its Mission: It "Protected, Preserved, And Maintained", James E. Moliterno

Scholarly Articles

The legal profession tends to look inward and backward when faced with crisis and uncertainty. The legal profession could make greater advances by looking outward and forward to find in society and culture the causes of and connections with the legal profession’s crises. Doing so would allow the profession to grow with society, solve problems with rather than against the flow of society, and be more attuned to the society the profession claims to serve.

The Agony Of Modern Legal Ethics, 1970-1985., Michael Ariens

St. Mary's Journal on Legal Malpractice & Ethics

When the American Bar Association (ABA) adopted its Code of Professional Responsibility at its annual meeting in August 1969, the American legal profession was a publicly respected and economically vibrant body. Lawyers, though always more feared than loved, became increasingly important in post-World War II America. The demand for their services exploded for a quarter-century, and lawyers assumed an increased role in the economic and political life of the United States. During the 1950s and early 1960s, the Cold War led American lawyers and other public figures to re-emphasize the rule of law as defining the difference between the United …

A Professional (Lack Of) Courtesy: The Emergence Of Expert Testimony In Legal And Medical Malpractice Cases., Jeffrey I.H. Soffer

St. Mary's Journal on Legal Malpractice & Ethics

This Article investigates the role of expert testimony in legal malpractice and medical malpractice cases; analyzing similarities and differences between the two and the evolution of case law in this context. The Article also examines numerous challenges potential expert witnesses face, including harsh backlash from their colleagues and repercussions from their professional organizations. Finally, the Article discusses the future of the legal malpractice and medical malpractice landscape as it pertains to expert testimony and what we should look for moving forward.

Globalization And The Aba Commission On Ethics 20/20: Reflections On Missed Opportunities And The Road Not Taken, Laurel S. Terry

Laurel S. Terry

The ABA Commission on Ethics 20/20 was established in order to “perform a thorough review of the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation in the context of advances in technology and global legal practice developments.” The thesis of this article is that the Commission was much more successful with the “technology” aspect of its work than it was with the globalization aspect of its work. This article offers an explanation for these differing levels of success and identifies an alternative path the Commission might have taken that might have led to greater success …

Seen But Not Heard: Advocating For Children In New York State, Sarah L. Marx

Touro Law Review

On November 1, 2008, the New York State Bar Association House of Delegates approved a resolution affirming their commitment towards establishing a civil right to counsel in New York State. One of the issues identified is a child's right to representation not only in criminal, but also civil proceedings. Unlike other litigant groups, children have a statutorily established right to council in civil proceedings. However, as the white paper, adopted by the New State Bar Association, details, there are gaps in children 's advocacy throughout New York State. While significant steps towards improvement have recently taken place, there is still …

Current Developments In Advocacy To Expand The Civil Right To Counsel, Paul Marvy, Laura Klein Abel

Touro Law Review

Around the country, state and local bar associations, access to justice commissions, and local advocacy groups are working to expand the right to counsel in their jurisdictions. The passage of three statutes in the past three years is tangible evidence of their efforts. Many civil right to counsel advocates take as their mandate a resolution passed unanimously by the American Bar Association’s House of Delegates two years ago, calling on the government to provide counsel in cases in which “basic human needs are at stake.” This Article describes efforts underway in eleven states to expand the right to counsel, as …

Law School Marketing And Legal Ethics, Ben L. Trachtenberg

Faculty Publications

Law schools have misled prospective students for years about the value of legal education. In some cases, law school officials have engaged in outright deceit, knowingly spreading false information about their schools. More commonly, they have presented statistics — especially those concerning the employment outcomes of law graduates — in ways nearly guaranteed to confuse readers. These deceptions and sharp practices violate the norms of the legal profession, a profession that scrupulously regulates the advertising of legal services. The deceptions also violate ethical rules prohibiting lawyers from engaging in dishonesty, misrepresentation, and deceit. This article exposes how pitches aimed at …

Regulators, Mount Up, Ben L. Trachtenberg

Faculty Publications

Since I began circulating drafts of an article arguing that certain law school officials have exposed themselves to professional discipline by engaging in dishonest marketing tactics, responses have varied considerably. Everyone seems to agree, however, that law school officials should not lie in their pursuit of students. There also appears to be broad consensus that misleading (albeit not intentionally false) marketing—such as systematically skewed salary statistics—is an unfortunate phenomenon, although disagreement remains on just how serious a problem it is and what level of corrective effort is appropriate. In their recently-published response pieces, Kyle McEntee of Law School Transparency (“LST”) …