Law Commons^™

The Lawyer's Duty Of Competence In A Climate-Imperiled World, John C. Dernbach, Irma S. Russell, Matthew Bogoshian

Faculty Works

The United States has more than 1.3 million practicing lawyers. Under Model Rule 1.1 of the ABA Model Rules of Professional Conduct and every state’s rules of conduct, each of these lawyers owes clients competent representation. Under the rule, “[c]ompetent representation requires the knowledge, skill, thoroughness and preparation reasonably necessary for the services.” While law and rules will undoubtedly change in response to the climate crisis, the duty of competence does not await such change or legal reform. The ubiquitous nature of the duty of competence means it is applicable to each lawyer now and will continue to evolve as …

Lawyers As Caregivers, Paula Schaefer

St. Mary's Journal on Legal Malpractice & Ethics

This Article argues that clients—much like patients in a healthcare setting—need their lawyers to be caregivers. The Article opens by developing a definition of caregiving in medicine and law. It then turns to five key components of caregiving in medicine, explaining the substantial research that this care is crucial for patient satisfaction, trust, and healing. Medical educators have drawn on this research to better prepare medical professionals to be excellent caregivers. The Article then explores the evidence that an attorney’s clients have the same needs and suffer similar harm when attorneys fail to meet these needs. Next, the Article turns …

Patients, Corporate Attorneys, And Moral Obligations, Ioan-Radu Motoarcă

St. Mary's Journal on Legal Malpractice & Ethics

There are two main questions that any account of corporate lawyers’ moral obligations needs to answer: (1) Do corporate lawyers have moral obligations to third parties? and (2) In cases of conflict between obligations to the corporation and obligations to third parties, which should prevail? This Article offers answers to these questions in the context of lawyers working in medical corporations. I argue that lawyers do have moral obligations to third parties, and that in cases where patients’ rights are being violated by a medical company, patients’ rights should prevail. Consequently, attorney–client confidentiality rules should be relaxed to allow for …

The Foundational Skill Of Reflection In The Formation Of A Professional Identity, Neil W. Hamilton

St. Mary's Journal on Legal Malpractice & Ethics

There is a growing scholarly literature on the professional development and formation of law students into the core values, guiding principles, and well-being practices considered foundational to successful legal practice.* This growing scholarly literature can guide effective curriculum development to foster student growth toward later stages of development on these learning outcomes. This Article focuses on the skill of reflection as one of the most effective curricular strategies to foster each student’s growth toward later stages of these learning outcomes. This same curricular strategy will also be effective in engaging practicing lawyers to grow toward these same goals. Part II …

The Sale Of Law Practice In Texas: The Need For A Rule, Ryan Hagens

St. Mary's Journal on Legal Malpractice & Ethics

Abstract forthcoming.

The Fate Of Comment 8: Analyzing A Lawyer's Ethical Obligation Of Technological Competence, Lisa Z. Rosenof

University of Cincinnati Law Review

No abstract provided.

The Exclusion Of Public Legal Education From Mandatory And Aspirational State Pro Bono Service Requirements, Amy Wallace

Articles & Chapters

Pro bono service is embedded in legal education and practice. Every year, lawyers and law students across the United States engage in countless hours of pro bono service. There are over 1.3 million lawyers in the country and more than one hundred thousand law students enrolled in law school. Lawyers perform an average of thirty-seven hours of pro bono work each year. They reference several factors that motivate them to perform this work but the desire to help people in need ranks highest. Professional duty is also listed as an important factor for lawyers choosing to perform pro bono work. …

Ethical Limits On Promising To Pay An Adverse Award Of Attorney’S Fees Against One’S Client, Chase C. Parsons

St. Mary's Journal on Legal Malpractice & Ethics

Abstract forthcoming.

Chief Loophole Officer Or Chief Legal Officer: Inside Lehman Brothers—A Film Case Study About Corporate And Legal Ethics, Garrick Apollon

St. Mary's Journal on Legal Malpractice & Ethics

This Article discusses the continuing legal education (CLE) visual advocacy documentary-style program, which Garrick Apollon (author of this Article) researched and developed. The case study for this CLE documentary-style program is the film Inside Lehman Brothers—a documentary film by Jennifer Deschamps which chronicles the story of the Lehman whistleblowers. The film presents Mathew Lee, former senior vice president overseeing Lehman’s global balance sheet; Oliver Budde, former in-house counsel (associate general counsel) of the Lehman Brothers; and the racialized female mid-tier manager whistleblowers, who all paid a steep price in the 2008 American subprime mortgage crisis, while many of the …

Lawyers, Mistakes, And Moral Growth, Vincent R. Johnson

St. Mary's Journal on Legal Malpractice & Ethics

Vincent R. Johnson, professor at St. Mary's University School of Law in San Antonio, Texas, reviews The Man in the Ditch: A Redemption Story for Today by Dallas attorney Mike H. Bassett.

Impeaching Legal Ethics, Bruce Green, Rebecca Roiphe

Articles & Chapters

In the investigations, hearings, and aftermath of President Trump’s first impeachment, lawyer-commentators invoked the rules of professional conduct to criticize the government lawyers involved. To a large extent, these commentators mischaracterized or misapplied the rules. Although these commentators often presented themselves to the public as neutral experts, they were engaged in political advocacy, using the rules, as private litigators often do, as a strategic weapon against an adversary in the court of public opinion. For example, commentators on the left wrongly conveyed that, under the rules, government lawyers had a responsibility to the public to voluntarily assist in the impeachment, …

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. …

Legal Ethics For Government Lawyers: Confronting Doctrinal Gaps, Andrew Martin

Articles, Book Chapters, & Popular Press

Despite the recent growth in the Canadian literature on legal ethics for government lawyers, the leading conceptual models have yet to be applied to resolve many of the most important legal questions facing government lawyers. In this article, I identify four key situations where the obligations of government lawyers as lawyers appear to clash with their obligations as public servants. I provide both a doctrinal analysis of how the current law applies in those situations and proposals for how the law can be clarified and improved. This analysis both provides much needed guidance to government lawyers and promotes a greater …

The Rules Of Professional Responsibility And Legal Finance: A Status Update, Anthony J. Sebok

Articles

Legal finance occurs when strangers fund litigation for profit. Traditionally looked upon with suspicion in the common law, and limited by the doctrines of champerty and maintenance, legal finance is now a thriving part of the American legal landscape. Legal finance has been promoted as a solution to the access-to-justice problems facing working and middle class Americans, as well as a new asset class for Wall Street. At the center of legal finance, however, are lawyers – not the lawyers who write the contracts for the financing – but the lawyers for the cases being financed.

Over the past decade, …

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 …

Toward More Robust Self-Regulation Within The Legal Profession, Veronica Root Martinez, Caitlin-Jean Juricic

Faculty Scholarship

The Trump Administration left reverberations throughout American life, and the legal profession was not insulated from its impact. The conduct of lawyers—both public and private—working on behalf of former President Trump was the subject of constant conversation and critique. The reality, however, is that the questions regarding the conduct of the Trump Administration lawyers, are rooted, in part, in more fundamental questions about the appropriate role of the lawyer within society. This Essay advocates for the adoption of a self-regulation scheme whereby lawyers regulate and oversee the conduct of other lawyers, to ensure that members of the legal profession are …

Ethical Duty To Investigate Your Client?, Peter A. Joy

St. Mary's Journal on Legal Malpractice & Ethics

Lawyers have been implicated in corporate scandals and other client crimes or frauds all too often, and the complicity of some lawyers is troubling both to the public and to members of the legal profession. This is especially true when the crime involved is money laundering. As a response to attorney involvement in crimes or frauds, some legal commentators have called for changes to the ethics rules to require lawyers to investigate their clients and client transactions under some circumstances rather than remaining “consciously” or “willfully” blind to what may be illegal or fraudulent conduct. The commentators argue that such …

Sufficiently Judicial: The Need For A Universal Ethics Rule On Attorney Behavior In Legislative Impeachment Trials, Joshua E. Kastenberg

St. Mary's Journal on Legal Malpractice & Ethics

In assessing an ethics, rule-based prohibition against New Jersey governmental attorneys representing clients against the state for matters the state had previously assigned to them, the state supreme court noted: “In our representative form of government, it is essential that the conduct of public officials and employees shall hold the respect and confidence of the people.”

In the beginning of 2020, the United States Senate held an impeachment trial to determine whether former President Donald J. Trump had committed offenses forwarded by the House of Representatives. A U.S. Senate trial, much like state senate trials, is both judicial and political …

Negative Commentary—Negative Consequences: Legal Ethics, Social Media, And The Impact Of Explosive Commentary, Jan L. Jacobowitz Ms.

St. Mary's Journal on Legal Malpractice & Ethics

Connecting and sharing on social media has opened communication channels and provided instantaneous information to billions of people worldwide. Commentary on current events, cases, and negative online reviews may be posted in an instant, often without pause or thought about the potential repercussions. This global phenomenon may not only provide news of the day updates, humor, and support for those in need but also is replete with ethical landmines for the unwary lawyer. Lawyers commenting on current events, their cases, or responding to a client’s negative online review, have suffered damage to their careers. In some instances, they have even …

The Informed Consent Doctrine In Legal Malpractice Law, Vincent R. Johnson

St. Mary's Journal on Legal Malpractice & Ethics

The doctrine of informed consent is now deeply embedded into the law of legal ethics. In legal malpractice litigation, the doctrine holds that a lawyer has a duty to disclose to a client material information about the risks and alternatives associated with a course of action. A lawyer who fails to make such required disclosures and fails to obtain informed consent is negligent, regardless of whether the lawyer otherwise exercises care in representing a client. If such negligent nondisclosures cause damages, the lawyer can be held accountable for the client’s losses.

Shifting the focus of a legal malpractice action from …

Model Rule 8.4(G) And The Profession’S Core Values Problem, Michael Ariens

St. Mary's Journal on Legal Malpractice & Ethics

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 …

Singapore: National Report For The Global Access To Justice Project, Tan K. B. Eugene

Research Collection Yong Pung How School Of Law

Global Access to Justice Project is gathering the very latest information on the impact of the world’s major justice systems, analyzing legal, economic, social, cultural and psychological barriers that prevent or inhibit many, and not only the poor, from entering and using the legal system. The country report for Singapore follows the common framework provided by the Global Access to Justice Project Questionnaire.

Technocapital@Biglaw.Com, Bruce A. Green, Carole Silver

Northwestern Journal of Technology and Intellectual Property

The transformative potential of technology in legal practice is well recognized. But wholly apart from how law firms actually use technology is the question of what law firms say about how they use and relate to technology—in particular, how law firms communicate whether technology matters and has value in what they do. In the past, firms in the BigLaw category, especially at the top echelon, have grounded their reputations on the credentials and achievements of their lawyers. In this paper, we explore whether elite law firms use technology similarly by describing it as an additional tool of inter-firm competition—a sort …

“Listserv Lawyering”: Definition And Exploration Of Its Utility In Representation Of Consumer Debtors In Bankruptcy And In Law Practice Generally, Josiah M. Daniel Iii

St. Mary's Journal on Legal Malpractice & Ethics

The author examines the communications and activities of bankruptcy lawyers participating in the listserv of the Bankruptcy Law Section of the State Bar of Texas and finds that those activities constitute a previously unrecognized form of “lawyering,” which he has defined as the work of lawyers in and through the legal system to accomplish the objectives of their clients. Review of specific postings about legal issues and practical problems by Texas bankruptcy lawyers, whose practices are primarily on behalf of individual debtors in cases under Chapters 7 and 13 of the Bankruptcy Code, and observations about the voluntary, collaborative, and …

Collared—A Film Case Study About Insider Trading And Ethics, Garrick Apollon

St. Mary's Journal on Legal Malpractice & Ethics

This Article discusses the visual legal advocacy documentary film, Collared, by Garrick Apollon (author of this Article). Collared premiered in fall 2018 to a sold-out audience at the Hot Docs Cinema in Toronto for the Hot Docs for Continuing Professional Education edutainment initiative. Collared features the story and reveals the testimony of a convicted ex-insider trader who is still struggling with the tragic consequences of “the most prolonged insider trading scheme ever discovered by American and Canadian securities investigators.” The intimate insights shared by former lawyer and reformed white-collar criminal, Joseph Grmovsek, serves as a painful reminder of the …

Where's Rudy?, James E. Moliterno

Scholarly Articles

Choice of law in lawyer discipline matters, and the language among the popular choice of law rules in use matters. The core goals of choice of law principles should not limit the choices to the states in which a lawyer has a full, formal license. Doing so undermines the modern choice of law interests analysis by eliminating jurisdictions that may have the greatest interest in the conduct.

Lawyers cross borders physically and electronically on a daily basis. Accordingly, choice of law rules are critical, especially when a lawyer engages in missions that are targeted at particular jurisdictions, as Rudy Giuliani …

Lawyers For White People?, Jessie Allen

Articles

This article investigates an anomalous legal ethics rule, and in the process exposes how current equal protection doctrine distorts civil rights regulation. When in 2016 the ABA Model Rules of Professional Conduct finally adopted its first ever rule forbidding discrimination in the practice of law, the rule carried a strange exemption: it does not apply to lawyers’ acceptance or rejection of clients. The exemption for client selection seems wrong. It contradicts the common understanding that in the U.S. today businesses may not refuse service on discriminatory grounds. It sends a message that lawyers enjoy a professional prerogative to discriminate against …

Playing By The Rule: How Aba Model Rule 8.4(G) Can Regulate Jury Exclusion, Anna Offit

Faculty Journal Articles and Book Chapters

Discrimination during voir dire remains a critical impediment to empaneling juries that reflect the diversity of the United States. While various solutions have been proposed, scholars have largely overlooked ethics rules as an instrument for preventing discriminatory behavior during jury selection. Focusing on the ABA Model Rule 8.4(g), which regulates professional misconduct, this article argues that ethics rules can, under certain conditions, offer an effective deterrent to exclusionary practices among legal actors. Part I examines the specific history, evolution, and application of revised ABA Model Rule 8.4(g). Part II delves into the ways that ethics rules in general, despite their …

Biglaw: Money And Meaning In The Modern Law Firm, Milton C. Regan, Lisa H. Rohrer

Georgetown Law Faculty Publications and Other Works

The Great Recession intensified large law firms’ emphasis on financial performance, leading to claims that lawyers in these firms were now guided by business rather than professional values. Based on interviews with more than 250 partners in large firms, Mitt Regan and Lisa H. Rohrer suggest that the reality is much more complex. It is true that large firm hiring, promotion, compensation, and termination policies are more influenced by business considerations than ever before and that firms actively recruit profitable partners from other firms to replace those they regard as unproductive. At the same time, law firm partners continue to …

Legal Ethics And Law Reform Advocacy, Jeffrey W. Stempel

St. Mary's Journal on Legal Malpractice & Ethics

Social activism, particularly law reform, has long been an accepted, even revered part of the lawyer’s identity. But modern developments such as nation-wide firms, the economic importance of client development, and aggressive attempts by clients to deploy attorneys as de facto, undisclosed lobbyists have put substantial pressure on the traditional vision of the attorney as a “lawyer-statesman” or someone who “checks clients at the door” when participating in law reform activities. Furthermore, law reform activism on behalf of one client (or prospective client when attorneys use their law reform lobbying as part of their marketing strategy) poses a real danger …