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Full-Text Articles in Law

Taking Limited Representation To The Limits: The Efficacy Of Using Unbundled Legal Services In Domestic-Relations Matters Involving Litigation., Michele N. Struffolino Jan 2012

Taking Limited Representation To The Limits: The Efficacy Of Using Unbundled Legal Services In Domestic-Relations Matters Involving Litigation., Michele N. Struffolino

St. Mary's Journal on Legal Malpractice & Ethics

The use of unbundled legal services is nothing new in this country, and it is often preferable to no representation at all. The Model Rules of Professional Conduct expressly permit attorneys to provide limited representation to their clients. Domestic-relations attorneys, in particular, have tried to ease the burden on litigants by offering unbundled legal services. However, the use of unbundled services in domestic[1]relations matters has caused difficulties for litigants, attorneys, and the courts. For these domestic-relations cases in particular, full service representation is crucial. To provide full satisfaction for their clients and to fulfill their ethical duty, domestic-relations attorneys must …


Social Networking And Judicial Ethics., Craig Estlinbaum Jan 2012

Social Networking And Judicial Ethics., Craig Estlinbaum

St. Mary's Journal on Legal Malpractice & Ethics

Social network sites (SNSs) such as Facebook, Linkedln, and Twitter have become an increasingly ever-present feature in American life since first appearing in the late 1990s. SNSs now impact virtually all parts of daily life, and the judiciary is not immune to this effect. Recent statistics show that approximately 40% of judges nationwide utilize SNSs for personal, professional, and electoral purposes. Social media, like any public communication form, presents special ethical challenges for judges. In recent years, judicial ethics committees in various states have weighed in on these questions and have not shown any clear consensus. However, it is generally …


Reinventing The Wheel: Constructing Ethical Approaches To State Indigent Legal Defense Systems., Bill Piatt Jan 2012

Reinventing The Wheel: Constructing Ethical Approaches To State Indigent Legal Defense Systems., Bill Piatt

St. Mary's Journal on Legal Malpractice & Ethics

Indigent defense remains in a state of crisis. Almost fifty years after the Supreme Court's landmark decision in Gideon v. Wainwright, lack of funding, favoritism, inefficiency, and poorly-designed indigent[1]defense plans plague the system, which can best be characterized as being in a state of disrepair. As a result, accused indigent individuals, a vulnerable population, suffer from a lack of adequate representation. This Article reviews the history and implementation of various indigent-defense systems and examines the ethical issues arising from their operation. It offers a guide to reconstructing a model system, including the suggestion that attorneys first recommit the profession to …


Civility And Collegiality—Unreasonable Judicial Expectations For Lawyers As Officers Of The Court?, Lonnie T. Brown Jr. Jan 2012

Civility And Collegiality—Unreasonable Judicial Expectations For Lawyers As Officers Of The Court?, Lonnie T. Brown Jr.

St. Mary's Journal on Legal Malpractice & Ethics

It is a well-settled and often-recited fact that lawyers are "officers of the court." That title, however, is notoriously hortatory and devoid of meaning. Nevertheless, the Eleventh Circuit recently took the somewhat unprecedented step of utilizing the officer-of-the-court label to, in effect, sanction an attorney for the purportedly uncivil act of failing to provide defendant attorneys with pre-suit notice. While the author applauds the court's desire to place greater emphasis on lawyer-to-lawyer collegiality as a component of officer-of-the-court status, the uncertainty the decision creates in terms of a lawyer's role will potentially force litigators to compromise important client-centered duties. This …


Malpractice Liability Related To Foreign Outsourcing Of Legal Services., Vincent R. Johnson, Stephen C. Loomis Jan 2012

Malpractice Liability Related To Foreign Outsourcing Of Legal Services., Vincent R. Johnson, Stephen C. Loomis

St. Mary's Journal on Legal Malpractice & Ethics

The outsourcing of client-related tasks to service providers in other countries is likely to generate malpractice claims against American law firms. This Article discusses the wide range of theories under which an outsourcing American law firm may be liable for its own negligence or for the actions of outsourcing providers. These theories include negligence by the outsourcing law firm, vicarious liability for the conduct of firm principals and employees, vicarious liability for the conduct of independent contractors, and vicarious liability for the conduct of business partners.


Why Your Secretary Is Really Worth A Million Dollars: Exploring The Harsh Penalty For Not Proofreading Your Fee Agreements In Anglo-Dutch Petroleum V. Greenberg Peden., James M. Parker Jr., J.K. Leonard Jan 2012

Why Your Secretary Is Really Worth A Million Dollars: Exploring The Harsh Penalty For Not Proofreading Your Fee Agreements In Anglo-Dutch Petroleum V. Greenberg Peden., James M. Parker Jr., J.K. Leonard

St. Mary's Journal on Legal Malpractice & Ethics

This Article examines the Texas Supreme Court's decision in Anglo-Dutch Petroleum International, Inc. v. Greenberg Peden, P.C. Next, this Article discusses the decision in light of other cases dealing with attorney-client contract issues. Then, an explanation of why the court's decision is inconsistent with other opinions is provided. This Article next analyzes the long-term effects of the Anglo-Dutch decision and the lessons to be learned from the case about drafting contracts and lawyers' obligations to inform clients of material terms. Finally, this Article suggests that the court's decision decreases the legal protection extended to lawyers and holds them closer to …


Order In The Court!: Ethical Conduct In A Criminal Trial Under The Texas Disciplinary Rules., Edward L. Wilkinson Jan 2012

Order In The Court!: Ethical Conduct In A Criminal Trial Under The Texas Disciplinary Rules., Edward L. Wilkinson

St. Mary's Journal on Legal Malpractice & Ethics

In a criminal trial, the most common ethical duties implicated are the duty of candor to the tribunal, maintaining the impartiality and integrity of the tribunal, and the fairness of the proceeding as a whole. Under the Texas Disciplinary Rules of Professional Conduct, these duties are broken down in Rules 3.03, 3.04, 3.05, and 3.06. Attorneys are charged with the responsibility of fully understanding each of these duties in order to interact accordingly with the tribunal. This Article will examine, in detail, each of these rules individually. Additionally, the Article will analyze how each of the rules overlap and coincide …


First, Do No Harm: The Consequences Of Advising Clients About Litigation Alternatives In Medical Malpractice Cases., Katerina P. Lewinbuk Jan 2012

First, Do No Harm: The Consequences Of Advising Clients About Litigation Alternatives In Medical Malpractice Cases., Katerina P. Lewinbuk

St. Mary's Journal on Legal Malpractice & Ethics

This Article addresses whether a lawyer's possible duty to inform and advise his client of potential alternative dispute resolution (ADR) options actually leads to better results for doctors in medical malpractice cases. This Article first explains different theories supporting a potential duty and then argues that all such theories praising ADR rely on the assumption that "valuable" alternatives to litigation always exist and are available to all litigants. That notion is arguably not always true for a physician defending against malpractice complaints; thus, the duty becomes almost meaningless in such cases. With the adoption of the National Practitioner Data Bank …


The Roles Of Attorneys As Courtroom Experts: Revisiting The Conventional Limitations And Their Exceptions., David S. Caudill Jan 2012

The Roles Of Attorneys As Courtroom Experts: Revisiting The Conventional Limitations And Their Exceptions., David S. Caudill

St. Mary's Journal on Legal Malpractice & Ethics

This Article examines whether attorneys should be allowed to testify as legal experts, especially in the legal malpractice context. This Article starts by addressing the unclear distinction between questions of law and fact and reviews several recent cases that prohibited expert legal testimony. Next, this Article addresses some general exceptions to the prohibition against expert legal testimony, such as questions of complex and uncertain law. Finally, this Article examines the use of legal experts in legal malpractice cases.


Appropriate Testing And Resolution: How To Determine Whether Appropriation Art Is Transformative Fair Use Or Merely In Unauthorized Derivative., Eric D. Gorman Jan 2012

Appropriate Testing And Resolution: How To Determine Whether Appropriation Art Is Transformative Fair Use Or Merely In Unauthorized Derivative., Eric D. Gorman

St. Mary's Law Journal

This Article addresses the copyright concerns in appropriation art today and concludes that copyright law should be amended to address the complex issues found in this area of the law. Part II provides a background on appropriation art and the different facets of copyright law, including the doctrine of fair use. Part III analyzes whether appropriation art can even be considered “fair use” under the current exceptions of copyright infringement. Part IV discusses various legal tests to determine whether appropriation art that utilizes copyrighted material can exercise the doctrine of fair use against alleged copyright infringement. It also proposes a …


Will Contests: From Start To Finish., Joyce Moore Jan 2012

Will Contests: From Start To Finish., Joyce Moore

St. Mary's Law Journal

This Article primarily focuses on the practical problems facing attorneys and courts when evaluating and proving up a will or trust in contested cases. The focus extends further into the special procedural and evidentiary rules applicable to these actions, the use and misuse of summary judgment proceedings in these cases, and some observations regarding developing trends and strategies in will and trust contest litigation. Admittedly, this area of practice is a melting pot of presumptions, exceptions, threshold hurdles, capacity qualms, evidentiary issues, strategic clauses, and countless other headache-inducing legal issues. Yet, attorneys must diligently juggle all of them while also …


Texas's Spoliation Presumption., Rebecca Simmons, Michael J. Ritter Jan 2012

Texas's Spoliation Presumption., Rebecca Simmons, Michael J. Ritter

St. Mary's Law Journal

Abstract Forthcoming.


Can Immune Parties Really Be Responsible: An Analysis Of The Current Interpretation Of The Texas Responsible Third Party Statute And Its Vulnerability To Constitutional Challenge., Justin C. Roberts, Randell Roberts Jan 2012

Can Immune Parties Really Be Responsible: An Analysis Of The Current Interpretation Of The Texas Responsible Third Party Statute And Its Vulnerability To Constitutional Challenge., Justin C. Roberts, Randell Roberts

St. Mary's Law Journal

The Texas Responsible Third Party (RTP) statute was amended in 2003 to give defendants the opportunity to have the jury apportion responsibility for the plaintiff’s damages to persons who were not joined in the lawsuit. A defendant could achieve this result by designating a “responsible third party.” Plaintiffs may often join responsible third parties as additional defendants. Under such situations, all culpable parties are before the court, defending themselves, and accountable to the plaintiff for their percentage of responsibility. When the statute worked in this fashion it achieved “a carefully constructed scheme balancing the interests of both defendants and claimants.” …


Administrative Procedure For The Twenty-First Century: An Introduction To The 2010 Model State Administrative Procedure Act., John Gedid Jan 2012

Administrative Procedure For The Twenty-First Century: An Introduction To The 2010 Model State Administrative Procedure Act., John Gedid

St. Mary's Law Journal

The National Conference of Commissioners on Uniform State Laws (ULC) approved the Revised Model State Administrative Procedure Act (2010 MSAPA) in 2010. The model state administrative procedure acts (APA) have been one of the most successful endeavors of the ULC. They have played a major role in encouraging states to incorporate concepts of fairness into state agency procedure statutes and to make express provisions for judicial review of administrative action. Those states that adopted the model acts accomplished fairness goals while bringing efficiency and accuracy into the state administrative process. By providing an overview of the Act’s new features, this …


In-House But Out In The Cold: A Comparison Of The Attorney-Client Privilege In The United States And European Union Comment., Andrew R. Nash Jan 2012

In-House But Out In The Cold: A Comparison Of The Attorney-Client Privilege In The United States And European Union Comment., Andrew R. Nash

St. Mary's Law Journal

Abstract Forthcoming.


Due Process And Local Administrative Hearings Regulating Public Nuisances: Analysis And Reform., Alex Cameron Jan 2012

Due Process And Local Administrative Hearings Regulating Public Nuisances: Analysis And Reform., Alex Cameron

St. Mary's Law Journal

Abstract Forthcoming.


Marsh Usa Inc. V. Cook: One Final Step Away From Light., Michael D. Paul Jan 2012

Marsh Usa Inc. V. Cook: One Final Step Away From Light., Michael D. Paul

St. Mary's Law Journal

Abstract Forthcoming.


War Powers Pursuant To False Perceptions And Asymmetric Information In The Zone Of Twilight., Robert Bejesky Jan 2012

War Powers Pursuant To False Perceptions And Asymmetric Information In The Zone Of Twilight., Robert Bejesky

St. Mary's Law Journal

Abstract Forthcoming.


Consumer Bankruptcy Policy: Ability To Pay And Catholic Social Teaching Essay., Richard Flint Jan 2012

Consumer Bankruptcy Policy: Ability To Pay And Catholic Social Teaching Essay., Richard Flint

St. Mary's Law Journal

An essay is presented on consumer bankruptcy policy in the U.S. It informs about the significant changes in the consumer bankruptcy introduced by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 including incorporation of an ability-to-pay test as a requirement for getting the benefits of the act. It reviews the Catholic social teaching related to the interrelationship between the dignity of man and his rights and duties to promote justice and the common good.


Removal Of Independent Executors: Examining The Standard In Texas After The Addition Of Material Conflict Of Interest To Section 149c Of The Texas Probate Code., Elizabeth R. Kopecki Jan 2012

Removal Of Independent Executors: Examining The Standard In Texas After The Addition Of Material Conflict Of Interest To Section 149c Of The Texas Probate Code., Elizabeth R. Kopecki

St. Mary's Law Journal

The State of Texas permits independent executors to operate with minimal court supervision. This allows executors to administer an estate with as little cost and delay as possible. Sometimes executors abuse this limited supervision and fail to manage estates properly. Fortunately, there are particular circumstances outlined in the Texas Probate Code which allow courts to step in and remove these harmful executors. Since the adoption of section 149C to the Texas Probate Code, grounds for removal have remained relatively specific. Recently, the legislature has added a new ground: “material conflict of interest.” Though no bright-line rule exists, there is precedent …


Inheritance Rights Of Posthumously Conceived Children In Texas Comment., Allison Stewart Ellis Jan 2012

Inheritance Rights Of Posthumously Conceived Children In Texas Comment., Allison Stewart Ellis

St. Mary's Law Journal

The Texas Legislature should update its legislation pertaining to posthumously conceived children. More than 20,000 children are born from artificial insemination each year, some of whom are conceived following their father’s death. Whether or not these children are entitled to a share in their father’s estate is a question for each state legislature. Many states have adopted a version of the Uniform Parentage Act (UPA). The UPA states that once paternity of a posthumously conceived child is established, the child is entitled to inherit from the deceased’s estate. Texas has adopted the UPA in part and has added stringent requirements …


A Judicial And Economic Analysis Of Attorney's Fees In Trust Litigation And The Resulting Inequitable Treatment Of Trust Beneficiaries., Charles Epps Ipock Jan 2012

A Judicial And Economic Analysis Of Attorney's Fees In Trust Litigation And The Resulting Inequitable Treatment Of Trust Beneficiaries., Charles Epps Ipock

St. Mary's Law Journal

Abstract Forthcoming.


The Double Irish Sandwich: Reforming Overseas Tax Havens., Stephen C. Loomis Jan 2012

The Double Irish Sandwich: Reforming Overseas Tax Havens., Stephen C. Loomis

St. Mary's Law Journal

Abstract Forthcoming.


A Custom Fit: Tailoring Texas Civil Jury Selection Procedures To Case Tiers., Jarod S. Gonzalez Jan 2012

A Custom Fit: Tailoring Texas Civil Jury Selection Procedures To Case Tiers., Jarod S. Gonzalez

St. Mary's Law Journal

Citizens serving on a civil jury are entrusted with making factual decisions about disputes that impact legal rights and remedies of litigants and set standards for the behavior of the public. Unfortunately, civil jury trials take place less frequently in twenty-first century Texas than in prior eras. Part of the justice system’s rejuvenation should involve a re-evaluation and improvement of the current process for selecting civil juries. Currently, the primary flaw in Texas jury selection procedures is the one-size-fits-all approach. Because some cases need twelve impartial jurors who are lay persons, and others require twelve people who are knowledgeable of …


Expanding Protective Order Coverage., Kellie K. Player Jan 2012

Expanding Protective Order Coverage., Kellie K. Player

St. Mary's Law Journal

The Texas legislature should eliminate the relationship requirement for a protective order. Although the Texas legislature passed the Kristy Appleby Act, which expanded the definition of dating violence, some victims of domestic violence may still be unable to qualify for a protective order. Specifically, some third-party individuals in a love triangle may not be eligible to receive a protective order. In Texas, a potential or current victim of domestic abuse needs to demonstrate a relationship with the perpetrator. Despite the broadened definition of relationship, some potential victims may still be unable to meet this burden. If the person cannot, they …