Law Commons^™

It’S A Trap! The Ethical Dark Side Of Requests For Admission, Colin Flora

St. Mary's Journal on Legal Malpractice & Ethics

Due largely to an overlap of authority between disciplinary bodies charged with supervising the professional conduct of attorneys and the authority of courts to supervise litigation, the ethical ramifications of routine discovery abuses often pass without comment. That is because disciplinary authorities routinely defer to courts to police litigation behavior despite courts frequently rejecting the role of enforcers of professional rules. A further contributing factor to unethical conduct becoming routine practice in discovery are ill-defined parameters and a dearth of guidance. One tool in particular, requests for admission, has gone overlooked in the literature and caselaw, but poses unique ethical …

A Human Rights Code Of Conduct: Ambitious Moral Aspiration For A Public Interest Law Office Or Law Clinic, Lauren E. Bartlett

St. John's Law Review

(Excerpt)

Part I of this Article argues that the lack of moral aspiration in legal ethics rules helps contribute to unhappy and unhealthy law students and lawyers, undermining the legal profession. Part II reviews the existing rules and standards that guide the ethical behavior of lawyers in the United States, arguing that all too often the binding rules focus on providing guide posts, signaling where behavior is unacceptable and disciplinary action is possible, instead of providing moral aspiration and options or next steps to describe what a lawyer should do to deal with an ethical dilemma.

Part III of this …

Savior Siblings In The United States: Ethical Conundrums, Legal And Regulatory Void, Zachary E. Shapiro

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Competing Liabilities: Responding To Evidence Of Child Abuse That Surface During The Attorney-Client Relationship, Alison Beyea

Maine Law Review

Kevin Adams, a practicing attorney in Maine, represents John Brown in a dispute with Brown's landlord. Brown is facing eviction as a result of his inability to pay the rent. Over the course of the representation, Adams has come to believe that Brown is abusing his son. Brown--who is working two jobs but still cannot pay his rent--has told Adams of the incredible pressure he is facing. Brown has admitted that the pressure is getting to him and that he feels bad that he has been “taking it out on the kid.” Brown also told Adams that he had been …

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

Maine Law Review

The Annual Edward S. Godfrey Lecture at the University of Maine School of Law was held on November 12, 1998. Professor Thomas L. Shaffer, Edward S. Godfry Professor of Law, presented “Towering Figures, Enigmas, and Responsive Communities in American Legal Ethics.”

A Penal Colony For Bad Lawyers, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

In this article I set out what I believe is an extreme and unconventional way to discipline egregiously bad lawyers. For starters, I think it might be useful to survey briefly the kinds of lawyering conduct currently subject to disciplinary sanctions. Regulation of the conduct of defense lawyers in the U.S. is hedged by various legal and professional rules that are enforced by courts and disciplinary bodies essentially to ensure a minimum level of competent and ethical representation. The Sixth Amendment right to counsel--the so-called “sacred” right--seeks to ensure at least a reasonable degree of lawyering skill. Also, professional codes …

Another Look At Lawyer Discretion To Assist Clients In Unlawful Conduct: A Response To Professor Tremblay, Samuel J. Levine

Scholarly Works

Professor Paul Tremblay’s At Your Service: Lawyer Discretion to Assist Clients in Unlawful Conduct, identifies and explores an apparent gap in the law governing the work of lawyers: the question of whether lawyers may assist clients in unlawful conduct that is not criminal or fraudulent. After introducing the issue through three illustrative scenarios, which he labels “lawbreaking stories,” Professor Tremblay engages in an extensive analysis of the applicable substantive law, relying primarily on ethics codes, which directly regulate the work of lawyers, with additional reference to other sources of law. Having reached the considered conclusion that the law does not …

Happy Birthday Siri! Dialing In Legal Ethics For Artificial Intelligence, Smartphones, And Real Time Lawyers, Jan L. Jacobowitz, Justin Ortiz

Articles

No abstract provided.

The Ethical Practice Of Human-Centered Civil Justice Design, Victor D. Quintanilla, Haley Hinkle

Articles by Maurer Faculty

Over the past two decades, legal professionals have increasingly engaged in a new form of professional activity: civil justice design. In the past, legal professionals handled cases and transactions for clients or served as neutrals, including mediators and arbitrators, who helped to resolve disputes between parties. Today, legal professionals increasingly play a principal design role in creating systems that resolve streams of conflicts, disputes, and grievances between parties. Lawyers regularly now create internal grievance procedures, procedures for companies to resolve disputes with customers, and court-annexed alternative dispute resolution systems. The emergence of this new role raises difficult questions about the …

Deliberative Constitutionalism In The National Security Setting, Mary B. Derosa, Milton C. Regan

Georgetown Law Faculty Publications and Other Works

Deliberative democracy theory maintains that authentic deliberation about matters of public concern is an essential condition for the legitimacy of political decisions. Such deliberation has two features. The first is deliberative rigor. This is deliberation guided by public-regarding reasons in a process in which persons are genuinely open to the force of the better argument. The second is transparency. This requires that requires that officials publicly explain the reasons for their decisions in terms that citizens can endorse as acceptable grounds for acting in the name of the political community.

Such requirements would seem to be especially important in the …

The Lawyer As A Public Citizen, Cruz Reynoso

Maine Law Review

The Eleventh Annual Frank M. Coffin Lecture on Law and Public Service was held on October 17, 2002. Cruz Reynoso, Boochever and Bird Professor of Law at the University of California at Davis, School of Law and retired Associate Justice of the California Supreme Court, delivered the lecture. Established in 1992, the lecture honors Judge Frank M. Coffin, Senior Circuit Judge of the United States Court of Appeals for the First Circuit, an inspiration, mentor, and friend to the University of Maine School of Law. The Board and Staff of Volume 55 are honored to continue the tradition of publishing …

Constitutionalizing Ethics, Bennett L. Gershman

Pace Law Review

The purpose of this essay is not to weigh in the wisdom or utility in revising New York’s Constitution. However, in my opinion, one of the most compelling reasons to amend New York’s Constitution is the need to incorporate into the fundamental charter a meaningful code of ethics, including procedures for its enforcement, and sanctions for violations. New York over the past fifteen years has experienced more scandals, criminal prosecutions, and convictions of lawmakers and other government officials for corruption than any state in the nation. It is certainly arguable that the extent of New York’s corruption, and the widespread …

Alternative Business Structures: Good For The Public, Good For The Lawyers, Jayne R. Reardon

St. Mary's Journal on Legal Malpractice & Ethics

There has been a shift in consumer behavior over the last several decades. To keep up with the transforming consumer, many professions have changed the way they do business. Yet lawyers continue to deliver services the way they have since the founding of our country. Bar associations and legal ethicists have long debated the idea of allowing lawyers to practice in “alternative business structures,” where lawyers and nonlawyers can co-own and co-manage a business to deliver legal services. This Article argues these types of businesses inhibit lawyers’ ability to provide better legal services to the public and that the legal …

Ethics And The “Root Of All Evil” In Nineteenth Century American Law Practice, Michael Hoeflich

St. Mary's Journal on Legal Malpractice & Ethics

This Article discusses the bifurcated notions on the purpose of working as an attorney—whether the purpose is to attain wealth or whether the work in and of itself is the purpose. This Article explores the sentiments held by distinguished and influential nineteenth-century lawyers—particularly David Hoffman and George Sharswood—regarding the legal ethics surrounding attorney’s fees and how money in general is the root of many ethical dilemmas within the arena of legal practice. Through the texts of Hoffman and Sharswood, we find the origins of the ethical rules all American attorneys are subject to in their various jurisdictions.

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 …

Philosophical Legal Ethics: An Affectionate History, David Luban, W. Bradley Wendel

Georgetown Law Faculty Publications and Other Works

The modern subject of theoretical legal ethics began in the 1970s. This brief history distinguishes two waves of theoretical writing on legal ethics. The “First Wave” connects the subject to moral philosophy and focuses on conflicts between ordinary morality and lawyers’ role morality, while the “Second Wave” focuses instead on the role legal representation plays in maintaining and fostering a pluralist democracy. We trace the emergence of the First Wave to the larger social movements of the 1960s and 1970s; in the conclusion, we speculate about possible directions for a Third Wave of theoretical legal ethics, based in behavioral ethics, …

Through The Looking Glass In Indiana: Mandatory Reporting Of Child Abuse And The Duty Of Confidentiality, Alberto Bernabe

Notre Dame Law Review Reflection

This Essay will explain the issue presented by the 2015 Opinion issued by the Legal Ethics Committee of the Indiana State Bar addressing a lawyer's duty to conceal or disclose information regarding sexual abuse of a minor. It will go on to suggest the analysis needed for its proper resolution according to the Indiana Rules of Professional Conduct.

Solving Ethical Puzzles To Unlock University Technology Transfer Client Work For An Intellectual Property Legal Clinic, Cynthia L. Dahl

All Faculty Scholarship

Intellectual property (IP) and technology legal clinics are experiencing an unprecedented surge in popularity. Before 2000 there were only five such clinics, but by 2016 there were seventy-four, with fifty added since 2010 alone. As law schools are approving new IP clinics and as practitioners are developing syllabi, there is an increasing need to share knowledge about models that work and how to avoid pitfalls.

One potentially fertile – but traditionally underutilized -- source of client work for an IP and technology clinic is the university technology transfer office (“TTO”), the department that protects, markets, and licenses all university intellectual …

Model Rule 5.7 And Lawyers In Government Jobs - How Can They Ever Be Non-Lawyers, Hugh D. Spitzer

Articles

This article focuses on the application of the Rules of Professional Conduct to licensed attorneys who serve in non-lawyer jobs in government. There is a fair amount of literature about members of the bar who serve as staff counsel in legislatures or executive agencies. There is also literature on Rule 5.7 of the ABA Model Rules of Professional Conduct (“Responsibilities Regarding Law-related Services”) in the context of practicing lawyers who participate in ancillary “non-lawyering” business activities. Model Rule 5.7 deals with “services that might reasonably be performed” or “are related to the provision of legal services” but which are permitted …

Can Practicing Mindfulness Improve Lawyer Decision-Making, Ethics, And Leadership?, Peter H. Huang

Publications

Jon Kabat-Zinn, the founder of mindfulness-based stress reduction, defines mindfulness as paying attention in a curious, deliberate, kind, and non-judgmental way to life as it unfolds each moment. Psychologist Ellen Langer defines mindfulness as a flexible state of mind actively engaging in the present, noticing new things, and being sensitive to context. Langer differentiates mindfulness from mindlessness, which she defines as acting based upon past behavior instead of the present and being stuck in a fixed, solitary perspective, oblivious to alternative multiple viewpoints. Something called mindfulness is currently very fashionable and has been so for some time now in American …

The Legal Profession's Rule Against Vouching For Clients: Advocacy And The Manner That Is The Man Himself, Thomas L. Shaffer

Thomas L. Shaffer

Modem American lawyers impose on one another regulatory rules that speak to the old argument but have not resolved it. One of these requires lawyers to advocate the interests of their clients with zeal; another forbids them from arguing that they believe what they say, or in the merit of what they are asking the government to do. The latter of these is a rule against vouching for clients. Rules that require zeal and forbid vouching seek to prevent both advertent deceit and an "unprofessional" limitation of advocacy to causes lawyers believe in. My claim is that these rules are …

On Living One Way In Town And Another Way At Home, Thomas L. Shaffer

Thomas L. Shaffer

No abstract provided.

Ethical Lawyering In A Global Community, Trevor C. W. Farrow

Trevor C. W. Farrow

No abstract provided.

The Good, The Right, And The Lawyer, Trevor C. W. Farrow

Trevor C. W. Farrow

No abstract provided.

In Defense Of The Devil's Advocate, Lonnie T. Brown Jr.

Hofstra Law Review

Among the many controversial positions for which Monroe Freedman advocated during his illustrious career, the one that I find most surprising and uncharacteristic is his contention that lawyers who undertake morally questionable representations have a duty to explain or justify their choice of client. Specifically, in 1993 Professor Freedman penned a well-known column in the Legal Times — titled “Must You Be the Devil’s Advocate?” — in which he took Professor Michael Tigar to task for his representation of reputed Nazi war criminal John Demjanjuk. Professor Freedman tacitly criticized Professor Tigar for his client choice and expressly called upon him …

Monroe Freedman And The Morality Of Dishonesty: Multidimensional Legal Ethics As A Cold War Imperative, Norman I. Silber

Hofstra Law Review

This Article reaches into the personal history of Monroe Freedman, a pioneer in multi-dimensional legal ethics, to advance an explanation for his advocacy and his signal contributions to legal ethics - particularly his landmark article of 1966, Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, where he inquired into situations in which candor might not be either moral or professional. It argues that his outspoken defense of lying as sometimes necessary and even moral behavior in the adversary system should be understood as an outgrowth of his early religious perspective about the nature of moral obligations, as …

The Immunity Of The Attorney General To Law Society Discipline, Andrew Martin

Articles, Book Chapters, & Popular Press

English Abstract: The Attorney General is both the minister responsible to the legislature for oversight of the law society and a practicing member of the law society. This dual status raises important questions: Is the Attorney General subject to discipline by the law society? Should she be? This article argues that the Attorney General is immune, absent bad faith, both for prosecutorial discretion and core policy advice and decisions, as well as absolutely immune under parliamentary privilege for anything said in the legislature. The Attorney General enjoys no special immunity otherwise, i.e. for the practice of law outside prosecutorial discretion …

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. …

Is Pro Bono Practice In Legal “Backwaters” Beyond The Scope Of The Model Rules?, Barbara Graves-Poller

The University of New Hampshire Law Review

[Excerpt] "While many private sector attorneys offer pro bono legal services that reflect the same level of diligence and skill characteristic of the work done on behalf of their paying clients, the egregious failures described in the MC v. GC case and those that occur in many unreported matters highlight the dangers of pro bono initiatives designed to bridge the “access to justice gap.” As used here, the term “justice gap” refers to the chasm between the need for legal representation in civil disputes and public interest attorneys available to serve poor and working class clients. Justice gap pro bono …

Running Past Landmines--The Estate Attorney's Dilemma: Ethically Counseling The Client With Alzheimer's Disease, Joseph Karl Grant

Journal Publications

This Article examines the ethical dilemmas faced by attorneys who represent clients suffering from Alzheimer's disease. To do so, this Article raises three (3) hypothetical case studies,and applies the ABA Model Rules of Professional Conduct, and the American College of Trust and Estate Counsel ("ACTEC") Commentaries, where appropriate, to those hypothetical case studies. Additionally, this Article proposes initiatives to ameliorate the lack of awareness and discussion of Alzheimer's disease in the law school curriculum, and finally, modest initiatives that the practicing bar can embrace to further a discussion and awareness among practicing attorneys about the ethical dilemma attorneys face in …