Law Commons^™

An Analysis Of Austin Lawyers Guild V. Securus Technologies, Inc.: The Constitutional And Ethical Implications Of Using Illegally Recorded Attorney–Client Telephone Conversations As Derivative Evidence, Christina Santos

St. Mary's Journal on Legal Malpractice & Ethics

For the justice system to operate effectively, privileged communications between an attorney and his or her client should be afforded the utmost and strictest protections. Intrusion by law enforcement upon these communications severely diminishes the confidence and candor needed in the attorney-client relationship. Although the United States Supreme Court recognizes prosecutorial immunity and generally leaves prosecutorial discipline to state bar authorities, the Court has long held that the attorney-client privilege is needed for attorneys to effectively advocate on behalf of their clients.

Austin Lawyers Guild v. Securus Technologies, Inc., a civil class-action lawsuit, is currently pending before the United …

Use Of Expunged Records In Attorney-Disciplinary Proceedings, Roland D. Ramos

St. Mary's Journal on Legal Malpractice & Ethics

The Texas Supreme Court’s decision in In re State Bar of Texas should be modified. In In re State Bar of Texas, the Court allowed the use of a criminal defendant’s expunged records in a subsequent disciplinary proceeding against his attorney. Allowing the use of expunged records for any purpose violates Texas law. For example, under the Texas Code of Criminal Procedure, it is an offense to knowingly release or use expunged records for any reason, unless a court’s final expunction order permits the expunged records to be retained for future use or if a defendant waives his or …

The Texas Lawyer's Creed: Exploring Its Origin And Impact Over The Last Quarter Century, Alicia M. Grant

St. Mary's Journal on Legal Malpractice & Ethics

This Comment examines different practical applications of the Creed and addresses the courts’ use of the Creed as a guide for desired ethical conduct. Additionally, this Comment includes an appendix of cases in which courts have cited the Creed and incorporates a survey of prominent individuals in the legal profession, including individuals who were instrumental in drafting or adopting the Creed.

Part III provides a historical background, detailing the increased incivility within the legal profession and the need for the profession to confront internally the incivility. Understanding the environment that gave birth to the Creed and the profession’s drive to …

The Corporate Attorney As “Internal” Gatekeeper And The In Pari Delicto Defense: A Proposed New Standard, Kevin H. Michels

St. Mary's Journal on Legal Malpractice & Ethics

This Article begins by proposing a distinction between the corporate lawyer’s “internal” and “external” gatekeeping role in order to focus on the special challenge posed by the former. As internal gatekeeper, the corporation lawyer is charged with the restraint of the corporation’s executives and other employees to prevent harm to the lawyer’s corporation client. The external gatekeeper, by contrast, restrains the client to prevent harm to third parties. While each gatekeeping role presents challenges in defining the duties and liability of attorneys, the internal-gatekeeping role is subject to a special defense that can insulate attorneys from liability. Attorneys can interpose …

Intra Law Firm Communications Regarding Questionable Attorney Conduct., Evan King, Jeffrey A. Parness

St. Mary's Journal on Legal Malpractice & Ethics

When questions are raised regarding a law firm attorney's representation of a firm client, the questioned attorney often wishes to seek legal counsel. A conferral will often benefit the attorney, the firm, and the client. Conferences regarding questioned conduct should be encouraged, not discouraged. To encourage these beneficial conferrals, a broad attorney-client communication privilege and a broad work-product protection (or privilege) should be available. Availability should not be dependent upon whether in-house, outside, or other legal counsel is employed. While earlier federal precedents were split regarding the availability of the attorney-client communication privilege in the in-house counsel setting, increasingly therein …

Proof Of Exoneration In Legal Malpractice Cases: The Peeler Doctrine And Its Limits In Texas And Beyond., John G. Browning, Lindsey Rames

St. Mary's Journal on Legal Malpractice & Ethics

This article examines the requirements of "actual innocence" or exoneration as a prerequisite for bringing a claim of legal malpractice against a criminal defense attorney. It analyzes the public policy underpinnings and differing approaches taken in those jurisdictions that have adopted an "actual innocence" requirement. To illustrate the way in which this comparatively recent phenomenon has developed, the Article views the exoneration doctrine through the prism of Texas law, analyzing the doctrine's emergence in Peeler v. Hughes & Luce and discussing how it has expanded over the years. Yet even as this "actual innocence" doctrine has expanded in Texas, recent …

Controversial Defenses To Legal Malpractice Claims: Are Attorney-Experts Being Asked To Be Advocates?, David S. Caudill

St. Mary's Journal on Legal Malpractice & Ethics

Attorney-experts in legal malpractice litigation are like many other experts. Although easily distinguishable from experts offering science based testimony, attorney expertise is similar to that of witnesses offering experience-based testimony, and very much like the expertise of a physician in a medical malpractice case. An attorney-expert is, however, somewhat unique among experts in terms of the type of expertise offered, the inherent risk that the expert's testimony will invade the province of the judge or jury, and, I believe, the risk of over-testifying. First, there is a problem of defining the attorney-expert's "expertise" to ensure that the expert is not …

Online Legal Advice: Ethics In The Digital Age, Paige A. Thomas

St. Mary's Journal on Legal Malpractice & Ethics

The rise of the Internet changed the way initial interactions between lawyers and prospective clients happen. Unfortunately, a host of problems concerning privacy rights and consumer usage have emerged. In this digital age, where immediacy and response time are driving factors in an attorney’s online presence, the approach to establish an attorney-client relationship is far more informal. Due to the quick rise of the Internet and social media, the Model Rules of Professional Conduct do not offer a clear answer for attorneys using social media. An inherent danger lies in off-the-cuff remarks, made on the Internet—a platform generally associated with …

Characterizing Ghostwriting., Debra Lyn Bassett

St. Mary's Journal on Legal Malpractice & Ethics

It is well known that legal services are costly and that existing pro bono services are inadequate to help every individual who would benefit from legal assistance. Compounding this unmet need are various restrictions on the types of clients and types of cases that qualify for pro bono services. For example, Legal Services Corporation lawyers may not represent undocumented individuals, and may not undertake a representation in an abortion, desegregation, or assisted suicide matter. One attempt to mitigate this unmet need is ghostwriting. Analogous to presidential speechwriting, ghostwriting in the legal context occurs when a lawyer drafts a pleading or …

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 …

“Nudging” Better Lawyer Behavior: Using Default Rules And Incentives To Change Behavior In Law Firms, Nancy B. Rapoport

St. Mary's Journal on Legal Malpractice & Ethics

In the changing landscape of law practice—where law firm profits are threatened by such changes as increased pressure from clients to economize and the concomitant opportunities for clients to shop around for the most efficient lawyers—are there ways to change how things are done in law firms so that firms can provide more efficient and ethical service? This article suggests that an understanding of cognitive biases and basic behavioral economics will help law firms tweak their incentives and default rules to promote the improved delivery of legal services.

The Role Of Ethics Audits In Improving Management Systems And Practices: An Empirical Examination Of Management-Based Regulation Of Law Firms, Susan Saab Fortney

St. Mary's Journal on Legal Malpractice & Ethics

For decades, legal malpractice experts have urged lawyers to implement risk management measures. To assist law firms in doing so, legal malpractice insurers have provided audit services and self-audit materials. Under the Australian regulatory regime, incorporated legal practices are required to complete a self-assessment process and to report on the firm’s compliance with ten objectives of sound law practice. Using management-based principles, this Article discusses steps to take to encourage ethics audits “to merge good ethics and good business” in the U.S.

Avoid Being A Defendant: Estate Planning Malpractice And Ethical Concerns., Gerry W. Beyer

St. Mary's Journal on Legal Malpractice & Ethics

An estate planner may become a defendant in a case involving an estate he or she planned in two main ways. First, the attorney may have performed his or her services in a negligent manner potentially creating exposure to malpractice liability. Second, the attorney's conduct may have lapsed below ethically acceptable standards. This Article reviews the exposure an estate planner may have to malpractice liability with emphasis on Texas law and then focuses the reader's attention on ethical issues that may arise while preparing or executing the plan. The author hopes that by pointing out potentially troublesome areas, the reader …

How Do You Rate Your Lawyer? Lawyers’ Responses To Online Reviews Of Their Services, Laurel A. Rigertas

St. Mary's Journal on Legal Malpractice & Ethics

With the proliferation of opportunities for consumers to review a variety of services on the Internet, it is only a matter of time until more clients review their attorneys’ services on the Internet. This raises a variety of potential ethical and public policy issues. First, what can attorneys do to try to control their online reputations? Second, if a client posts negative comments about an attorney’s services on a public Internet forum, can the attorney respond on that forum without breaching the duty of confidentiality and, if so, how? Finally, when settling a dispute with a client, may an attorney …

Is Litigation Counsel Who Also Engages In Competitive Decision-Making Wrong For The Part?, David Hricik

St. Mary's Journal on Legal Malpractice & Ethics

In-house counsel wear different hats, and are often involved in business decisions regarding products, marketing, and other strategic issues. It was in this context that courts began to adopt protective orders that precluded in-house counsel who provided their clients advice with “competitive decision-making” from having access to information from a competitor disclosed in discovery. Prosecution bars present numerous issues for courts and counsel. It may be that because of prosecution counsel’s knowledge of the technology that her service as trial counsel would lead to cost savings and other benefits to her client. However, due to the myriad problems that arise …

Navigating The Pitfalls Of Implicit Bias: A Cognitive Science Primer For Civil Litigators, Nicole E. Negowetti

St. Mary's Journal on Legal Malpractice & Ethics

Cognitive science has revealed that past experiences and prior assumptions, even those of which we are not conscious, greatly influence how humans perceive the world. Emerging research has demonstrated that attorneys and judges, like everyone else, are the products of their gender, ethnicity, race, and socioeconomic status. As a consequence, legal decision-making is susceptible to the subtle influences of implicit bias. Effective and ethical client advocacy requires an attorney to understand how her own implicit biases will affect her interactions with clients. An attorney should also acknowledge that implicit biases may affect a judge’s interpretation of her client’s story and …

Why Lawyers Do What They Do (When Behaving Ethically), James Moliterno, John Keyser

St. Mary's Journal on Legal Malpractice & Ethics

Since the early 1990s, when David Wilkins published his influential paper “Who Should Govern Lawyers” in the Harvard Law Review, legal ethics scholars and professors have paid attention to the range of processes and devices that govern lawyer behavior. This Article will report on the results of a study currently underway that seeks to provide empirical evidence to answer the question posed in this Article’s title: Do lawyers train staff in confidentiality preservation because they fear bar discipline? Because they fear malpractice liability? Because they must comply with malpractice liability carrier demands? Because they honor client confidences for their own …

Mindful Ethics-A Pedagogical And Practical Approach To Teaching Legal Ethics, Developing Professional Identity, And Encouraging Civility, Jan L. Jacobowitz, Scott Rogers

St. Mary's Journal on Legal Malpractice & Ethics

Aristotle spoke of virtue and ethics as a combination of practical wisdom and habituation—an individual must learn from the application of critical reasoning skills to experience. Perhaps one of the earliest proclamations of the value of experiential learning, the Aristotelian view, reappears throughout history and is captured once again by the Carnegie Foundation’s Report on Legal Education, which includes a call for instruction that provides practical skills and ethical grounding to complement the teaching of legal analysis. The Carnegie Report continues to play a role in the ongoing discussion of the need to reform legal education; a debate that is …

Disqualifying Defense Counsel: The Curse Of The Sixth Amendment, Keith Swisher

St. Mary's Journal on Legal Malpractice & Ethics

Lawyer disqualification—the process of ejecting a conflicted lawyer, firm, or agency from a case—is fairly routine and well-mapped in civil litigation. In criminal cases, however, there is an added ingredient: the Sixth Amendment. Gideon, which is celebrating its fiftieth anniversary, effectively added this ingredient to disqualification analysis involving indigent state defendants although it already existed in essence for both federal defendants and defendants with the wherewithal to retain counsel. Once a defendant is entitled to counsel, the many questions that follow include whether and to what extent conflicts of interest—or other misconduct—render that counsel constitutionally ineffective. Most cases and commentary …

“Payability” As The Logical Corollary To “Collectibility” In Legal Malpractice, Daniel D. Tostrud

St. Mary's Journal on Legal Malpractice & Ethics

The collectibility requirement as part of the legal malpractice plaintiff’s affirmative case is well-established and regarded by most courts as a critical part of the plaintiff’s proof of proximate causation. Conversely, where the legal malpractice plaintiff was the defendant in the underlying lawsuit, to be successful in the malpractice suit, the plaintiff must prove that it had a meritorious defense that would have made a difference to the outcome of the case had the lawyer properly asserted and pursued the defense. Prompted by the conflicting opinions of two federal courts on this issue, courts have begun to discuss whether the …

The Qualified Privilege Of Texas Lawyers To Defend Their Reputations., Clement J. Hayes

St. Mary's Journal on Legal Malpractice & Ethics

The technology-based society of the twenty-first century offers vast Internet resources that afford individuals easy access to information and means of communication. As a result, people spend substantial time online. Some Internet sites, such as Facebook, Twitter, Yelp, Angie's List and Google, provide consumers an online forum for sharing experiences and opinions. This development, while in many respects beneficial, is not without its drawbacks.

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.

The Accidental Lawyer: A Law And Economics Perspective Of Inadvertent Waiver., Ido Baum

St. Mary's Journal on Legal Malpractice & Ethics

The inadvertent waiver doctrine is part of the attorney-client privilege but its application lacks uniformity and thus is a major cause for distress for lawyers and clients. The concerns about an inadvertent waiver of the privilege intensify as technology changes the way attorneys and clients interact. Accordingly, seeking legal advice has become a dangerous activity. This Article first demonstrates that courts treat inadvertent waiver as a type of accident without duly attending to the implications of the concept. Drawing on economic analysis of tort law, this Article identifies how the liability regimes and unique harm rules applied by courts to …

The Limited Power Of The Bar To Protect Its Monopoly., Zachary C. Zurek

St. Mary's Journal on Legal Malpractice & Ethics

The weaknesses within unauthorized practice of law (UPL) laws, coupled with shaky and fragmented enforcement, allow nonlawyers to perform activities that are otherwise characterized as the practice of law. Certified Public Accountants (CPAs), non-lawyers representing individuals in administrative settings, legal document preparation services, and other non-lawyers offering detailed legal advice pose serious threats to the bar and the individuals they serve. Uniformed standards of liability, ethics, and certification should be developed to ensure a balanced group of practitioners is available to the public. Pulling nonlawyers into the realm of liability for breach of professional responsibility would result in a higher …

Introduction, Kathryn A. Stephens

St. Mary's Journal on Legal Malpractice & Ethics

Introduction

“A Scout Is Trustworthy”: Applying Virtue Ethics To Lawyer Professionalism., Jeff Brown

St. Mary's Journal on Legal Malpractice & Ethics

This Article advocates the employment of the twelve-point Scout Law of the Boy Scouts of America as a professional ethics guide for lawyers. The Article begins by briefly relating the history of virtue ethics as a philosophical field of study and comparing and contrasting it with rule-based ethics. The Article continues with a brief history of the Scout Law. Finally, the Article explores how each of the twelve points of the Scout Law identifies a virtue relevant to the practice of law and how seeking to adhere to these virtues is crucial for attorneys hoping to lead a life of …

The Litigation Privilege In Texas., Sam Johnson

St. Mary's Journal on Legal Malpractice & Ethics

Certain Texas cases have arisen where one party in litigation sues the attorney representing an opposing party. In response to such cases, Texas courts promulgated a judicial doctrine generally referred to as the litigation privilege or qualified immunity in order to protect litigants’ right to zealous representation from their attorney. The general rule is that one party to a lawsuit cannot sue the other party’s attorney. However, exceptions to this doctrine exist. This article explores the contours of the litigation privilege in Texas by analyzing the primary Texas cases where one party’s claim against the opposing party’s attorney was dismissed …

Arbitration Clauses In Fee Retainer Agreements., Chrissy L. Schwennsen

St. Mary's Journal on Legal Malpractice & Ethics

Due to the variety of approaches jurisdictions employ when determining the legal ramifications of arbitration clauses in fee retainer agreements, it’s best to include an explanation of the legal consequences of arbitration in the agreements. The attorney can, and should, fully explain the potential benefits of arbitration to clients. State courts take various viewpoints on the issue, and most stand contrary to the position of the American Bar Association (ABA) and state ethics committees on the subject. Consequently, attorneys must disclose truthful and accurate information regarding arbitration agreements when engaged in multijurisdictional practice in order to ensure protection from malpractice …

Can Federal Courts Exercise Jurisdiction Over State Law Malpractice Claims Arising Out Of Patent Law Disputes?, Isaac C. Ta

St. Mary's Journal on Legal Malpractice & Ethics

Under 28 U.S.C. § 1338, federal courts generally have original jurisdiction over cases arising under federal civil law. Specifically, under 28 U.S.C. § 1338(a), federal courts have jurisdiction over cases brought under federal patent laws. As with any legal proceeding, the potential for legal malpractice as it relates to patent issues (e.g., proper patent filing) is very real. However, unlike patent law proceedings, legal malpractice is governed by state law.' When the two causes of action are intertwined, federal and state courts are presented with the issue of which court possesses proper jurisdiction. Some argue federal courts can properly exercise …

Guilt By Association: How “Standby Co-Counsel” Exposes Attorneys To Malicious Prosecution Liability., Colleen V. Lisowski

St. Mary's Journal on Legal Malpractice & Ethics

Attorneys should not assume that lending their name to a case is a risk-free practice. The California appellate decision, Cole v. Patricia A. Meyer & Associates, answered the question of whether non-participating, standby co-counsel could be held liable for malicious prosecution by merely being listed as counsel of record. Cole established the clear message behind being aware of “co-counsel” risks. According to the court, co-counsel cannot escape liability if they failed to know enough about the case. By rejecting the “passive counsel” defense, Cole held that associated attorneys still have a duty to research the validity of a case even …