Law Commons^™

Conflicts Of Interest At An Organization’S Highest Authority: How The District Of Columbia’S Rules Of Professional Conduct Can Fail To Protect Private Organizations, Christopher Deubert

Catholic University Law Review

This Article examines how the District of Columbia’s incomplete incorporation of the Model Rules of Professional Conduct into its own Rules of Professional Conduct has created a scenario in which wrongdoing inside a private organization can flourish. In 2002, following the Enron scandal, the American Bar Association (ABA) revisited and revised its Model Rules of Professional Conduct. The ABA nevertheless took a conservative route, rejecting rules long proposed by experts which would have permitted attorneys aware of corporate crimes, fraud, and other wrongdoing to report their concerns to individuals or entities outside the organization’s reporting structure. Additional scandals unfolded contemporaneous …

State Spoliation Claims In Federal District Courts, Jeffrey A. Parness

Catholic University Law Review

The increasing amounts of electronically stored information (ESI) relevant to civil litigation, and the ease of their loss, caused federal lawmakers explicitly to address the possible consequences of certain pre-suit or post-suit ESI losses. These lawmakers acted in both 2006 and 2015 through Federal Civil Procedure (FRCP) 37(e). But they acted only on certain ESI. Their actions have prompted increasing attention to the significant risks of pre-suit and post-suit losses of all ESI, and of non-ESI, otherwise discoverable in civil actions. In addition, their actions have spurred increasing attention to the availability of substantive law claims involving spoliation of information …

Take Note: Teaching Law Students To Be Responsible Stewards Of Technology, Kristen E. Murray

Catholic University Law Review

The modern lawyer cannot practice without some deployment of technology; practical and ethical obligations have made technological proficiency part of what it means to be practice-ready. These obligations complicate the question of what constitutes best practices in law school.

Today’s law schools are filled with students who are digital natives who don’t necessarily leverage technology in maximally efficient ways, and faculty who span multiple generations, with varying amounts of skepticism about modern technology. Students are expected to use technology to read, prepare for class, take notes, and study for and take final exams. Professors might use technology to teach or …

Augustine, Lawyers & The Lost Virtue Of Humility, Bruce P. Frohnen

Catholic University Law Review

The leading edge of legal scholarship and practice in recent decades has evinced a commitment to progressive politics at the expense of constitutional governance, the rule of law, and justice understood as vindication of the reasonable expectations of both the public and the parties to any given case or controversy. This article argues that renewed understanding of the virtue of humility, rooted in a genuine concern to do good according to one’s abilities, rights, and duties, is essential to the maintenance of decency in the legal profession and society as a whole. Such virtue is allowed, if not required, by …

Who Is The Client? Rethinking Professional Responsibility For Benefit Corporations, Joseph R. Pileri

Catholic University Law Review

A growing social enterprise movement has led companies to increasingly opt into the benefit corporation form, and those companies are hiring lawyers. Benefit corporations challenge the notion that corporate law’s primary focus is on furthering shareholder interests. While many have written about the benefit corporation with respect to corporate fiduciary law, this Article is the first to explore the form’s ethical implications for lawyers. Ethical obligations necessarily reflect substantive law governing client organizations; changes to the corporate form presented by benefit corporation legislation should reverberate in legal ethics. The legal profession, however, has not addressed how to lawyer to a …

Aba Model Rule 8.4(G) In The States, Josh Blackman

Catholic University Law Review

This essay will provide a brief overview of how the states have responded to

ABA Model Rule 8.4(g). Part I reviews opinions from four state attorneys

general who concluded that the rule is unconstitutional: Texas, South Carolina,

Louisiana, and Tennessee. Part II discusses the states that considered the rule

with modifications. Part III reviews the states that considered Rule 8.4(g) as

drafted. So far, only one state adopted the rule: Vermont. However, the process

is still not over, and other states are currently considering the rule.

Seeking Common Sense For The Common Law Of Common Interest In The D.C. Circuit, Jared S. Sunshine

Catholic University Law Review

Privilege law can be frustrated by the complexity of modern legal actions involving ramified enterprises engaging with their peers. To protect such allied parties cooperating in litigation or other legal matters, courts have innovated doctrines extending discovery protections to such postures under the names of co-client, joint defense, and common interest privilege. The niceties of these doctrines have proven unclear, however, particularly in the challenging situation of competing companies whose collusion or combinations must be monitored for antitrust concerns. Following a thorough overview of each doctrine and identifying how they overlap and differ, a focused examination of multi-party privilege law …

Talk Don’T Touch? Considerations For Children’S Attorneys On The Physical Touch Of Clients, Andrea L. Dennis

Catholic University Law Review

Forming a positive attorney-client relationship with a child is a complex process that involves many considerations. Although it offers guidance on effectively communicating and creating a safe environment, the legal system has neglected to form appropriate standards governing physical touch of juvenile clients. There are numerous benefits to physical touch of clients. However, a lack of guidance on the appropriate ways to use physical touch creates the risk negative effects will result from the touch. Drawing from the standards of other child-focused professions, this Article provides guidelines for attorneys contemplating using physical touch to develop a positive rapport with child …

Marketable And Mobile: Ube Recommended, Veryl Victoria Miles

Scholarly Articles

The first administration of the Uniform Bar Examination (UBE) occurred just five years ago in Missouri and North Dakota. At that time, the concept of a bar examination with a test score that was portable among participating jurisdictions was an exciting development for longtime proponents of a uniform bar exam. And while there were only two participating jurisdictions on board in 2011, NCBE was well on its way in making the case for the UBE as an attractive test alternative throughout the nation. Today there are 25 jurisdictions that have adopted the UBE, and by July 2018 all 25 jurisdictions …

Law Student Mediators Wear A Triple Crown: Skilled, Sellable, & Successful, Laurie A. Lewis

Scholarly Articles

This Article considers several trends that converge to make it a highly favorable time for law students to obtain mediation training and work as mediators prior to graduating. Part I summarizes a brief history of the modern ADR movement, and mediation's emergence as the ADR methodology of choice. Part II discusses the proliferation of live clinics in law schools, with a special emphasis upon mediation clinics and their role in teaching unique practice-ready skills. Part III focuses on the practicalities of community mediation training as well as state requirements for mediators. Finally, Part IV considers the tight legal job market …

The Legal Academy Under Erasure, Richard E. Redding

Catholic University Law Review

We hear much about the “crisis” in legal education: steep declines in law school enrollments and graduates unprepared for practice who cannot find jobs. Proposals to address the crisis enjoy wide support and are poised to dramatically change the landscape of legal education. These reforms are harmful to law students and the legal profession, placing the legal academy “under erasure,” as Jacques Derrida would say. They erase the academic nature of law school by: (1) reorienting it from an academically-grounded legal education towards vocational training, (2) requiring just two years of study for the J.D. degree, (3) allowing graduates of …

Pope Francis And The Vocation Of The Lawyer: Reflections On Service And Responsibility, Lucia A. Silecchia

Scholarly Articles

Through the years, Catholic lawyers have had many opportunities and invitations to reflect on their profession as a vocation due to the guidance that can be found in Sacred Scripture, the examples of saints who were themselves members of the legal profession, the teachings of church leaders, and the insights of religious writers on the vocation of the lawyer, to name but a few.

More recently, Pope Francis has also offered guidance as to what a life in the law might mean and what might characterize the vocation to practice law today. This guidance is not to be found in …

“A Witness First Lives The Life He Proposes:” Evangelization And The Catholic Lawyer, Lucia A. Silecchia

Scholarly Articles

This essay was presented at the lecture for legal professionals in Baltimore, Maryland, on May 21, 2015. The roots of the word evangelization are, literally, in the words that mean “to bring good news.” We live in a world that craves good news and, by virtue of our Baptism, all of us – lawyers included – are called to bring good news to a world that, despite all appearances to the contrary, aches for good news and deeply yearns to know the God from whom all good news comes, and to whom all good news leads. I am convinced that …

Gideon’S Army And The Central Theme Of Poverty, Cara H. Drinan

Scholarly Articles

Gideon’s Army, a powerful documentary film that follows the work of three public defenders in the South, provides a window into the well documented dysfunction of most public defender offices across the country. While following the life and work of these public defenders—Travis Williams, Brandy Alexander, and June Hardwick—the viewer sees what the academic literature has documented for decades: public defenders carry caseloads that are multiples of professional guidelines; compensation for public defenders is so paltry that many are barely making ends meet; the offices in which they work are resource-starved; guilty pleas are the default; and the public …

Externship Demographics Across Two Decades With Lessons For Future Surveys, J.P. "Sandy" Ogilvy, Sudeb Basu

Scholarly Articles

Sudeb Basu (J.D., Catholic University, 2011) and Professor J.P. “Sandy” Ogilvy (Catholic University) report on the results of a 2007-2009 national survey of externship programs at American law schools and compare many of the data points to previous surveys of externship programs, the 2007-2008 CSALE survey, and some ABA/LSAC data, to chart the growth and increasing sophistication and complexity of the pedagogy associated with legal externships. Some of the data discussed include limits on the number of externship credits or externship courses, student involvement in externships, the distribution of credits awarded for externship courses, the average number of hours of …

First-Year Law Faculty Are Uniquely Poised To Mentor Stellar Students For Elbow Employment With Judges, Laurie A. Lewis

Scholarly Articles

Judicial clerkships are in high demand for new law graduates. In this tight job market, applicants must possess outstanding applications. Applicants must be not only practice-ready, but also clerkship-ready. They must be people-oriented, with superb oral communication skills. They must be outstanding researchers and writers. And they must have a passion for discovering truth and promoting justice.

Students should embark on a clerkship-ready path during their first year of law school. First-year faculty members are uniquely poised to identify students with skills and traits inherent to successful clerks. Such students demonstrate intellectual excellence, superior work habits, and an ability to …

The Uniform Bar Examination: A Benefit To Law School Graduates, Veryl Victoria Miles

Scholarly Articles

No abstract provided.

Celebrating Clepr’S 40th Anniversary: The Early Development Of The Clinical Legal Education And Legal Ethics Instruction In U.S. Law Schools, J.P. "Sandy" Ogilvy

Scholarly Articles

This article introduces the essays, articles, and remarks celebrating the fortieth anniversary of the establishment of the Council on Legal Education for Professional Responsibility (CLEPR). The Section on Professional Responsibility and Section on Clinical Legal Education of the Association of American Law Schools (AALS) jointly sponsored a half-day program at the 2009 AALS Annual Meeting in San Diego, California, in recognition of the fortieth anniversary of CLEPR and the one hundredth anniversary of the promulgation of the American Bar Association Canons of Professional Ethics, the ABA's first effort at establishing a private law of lawyering to govern its members. After …

Practice-Ready: A Law School Perspective On Bar Certification, Veryl Victoria Miles

Scholarly Articles

Law schools play a critical role in the bar certification process. They certify that graduates have the character and fitness necessary to become members of the bar,and they verify that graduates have completed the schools’ academic requirements for graduation. Each of these certifications is much more than a mere check mark but rather an analysis of a complex set of factors.The certification of character and fitness is not a simple notice of the lack of negative information about the graduate. Law school determination of character and fitness is quite detailed. While all of the levels of that process are beyond …

A Legal Career For All Seasons: Remembering St. Thomas More’S Vocation, Veryl Victoria Miles

Scholarly Articles

The vast majority of the work taking place in most law schools is the preparation of law students for the practice of law; namely, to teach legal theory and doctrine, legal analysis, writing, and advocacy. In sum, the goal of most law schools is to teach the many different skills required in law practice and the professional rules of legal ethics. What appears to be lacking in the preparation of future lawyers are lessons on how to incorporate this vast amount of specialized learning and skill in ways that will be harmonious with the personal, moral, and ethical values that …

Things Are Seldom What They Seem: Judges And Lawyers In The Tales Of Mark Twain, Lucia A. Silecchia

Scholarly Articles

This article explores the many and varies legal characters that populated the bench and bar in Mark Twain’s work. Judges and lawyers have long captivated the minds and talents of authors, and Twain was a prolific creator of jurisprudential characters. This article’s thesis is that a careful study of Twain’s fiction reveals a disturbing pattern of inconsistency between the conduct of his attorneys and judges and the quality of justice that their actions bring about. In all too many of Twain’s tales, true “justice” is far more likely to be achieved where lawyers and judges violate legal rules through deception, …

Lawyering Process: My Thanks For The Book And The Movie, Leah Wortham

Scholarly Articles

The author's memories of "the movie version" of The Lawyering Process, two courses she took in Gary Bellow's first two years at Harvard Law School (1971-73), are compared to the text and problem supplements published in 1978. The author traces the influence of those courses and books on her externship course and textbook, written with others. She cites the value of Bellow & Moulton's pioneering employment of visual and kinesthetic learning modes and explicit statement to students about educational goals and methods. She identifies paradigms for lawyering tasks that have remained useful to her throughout her career. With twenty-one years …

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 …

Regulation Of Unethical Billing Practices: Progress And Prospects, Lisa G. Lerman

Scholarly Articles

During the last ten years billing fraud by lawyers has been recognized as a serious problem that undermines clients' trust of lawyers and the reputation of the profession as a whole. It used to be thought that lawyers who wanted to steal their clients' money would just take money out of the trust account. In recent years it has become clear that dishonest lawyers' methods of misappropriation are far more diverse than that.

The focus of this paper is on billing misconduct by lawyers who contract with their clients to bill by the hour. I will not talk about lawyers …

Scenes From A Law Firm, Lisa G. Lerman

Scholarly Articles

No abstract provided.

New York Attorney Malpractice Liability To Non-Clients: Toward A Rule Of Reason And Predictability, Lucia A. Silecchia

Scholarly Articles

This 1995 Article addresses the question of attorney liability in New York. It begins with a brief introduction to the history of the privity requirement nationally to place the New York question in context. It then traces the scope of attorney liability in New York and examines the state of that law - with its contradictions and inconsistences. This Article proposes a rule for New York courts to consider that centers on the “adversariness” of the client and the third party as the touchstone for determining if expanded liability is appropriate.

This differs from the traditional analysis which bases the …

Gross Profits? Questions About Lawyer Billing Practices, Lisa G. Lerman

Scholarly Articles

No abstract provided.

Psychological Type Theory In The Legal Profession, Raymond B. Marcin

Scholarly Articles

For some time now the phenomenon known as psychological typing has been finding its way into the study and even the practice of law. The phenomenon has its origin in the notion that people are different in ways that are meaningfully categorizable and classifiable, i.e., that there are genuine, empirically verifiable psychological "types" among people, with the members of each type possessing similar psychological characteristics to some significant extent. The phenomenon is based in Jungian psychology, but its influence has extended well beyond that discipline and into others, including the law and lawyering. More than two decades ago, in an …

Pro Bono Representation And The Government Lawyer, Marshall J. Breger

Scholarly Articles

No abstract provided.

Public Service By Public Servants, Lisa G. Lerman

Scholarly Articles

No abstract provided.