Law Commons^™

The Partnership Mystique: Law Firm Finance And Governance For The 21st Century American Law Firm, Maya Steinitz

William & Mary Law Review

This Article identifies and analyzes the de facto and de jure end of lawyers’ exclusivity over the practice of law in the United States. This development will have profound implications for the legal profession, the careers of individual lawyers, and the justice system as a whole.

First, the Article argues that various financial products that have recently flooded the legal market are functionally equivalent to investing in and owning law firms and create all the same governance challenges as allowing nonlawyers to directly own stock in law firms.

Second, the Article analyzes Arizona’s groundbreaking legalization of nonlawyer participation in law …

The Race To The Top To Reduce Prosecutorial Misconduct, Adam M. Gershowitz

Faculty Publications

This Essay offers an unconventional approach to deterring prosecutorial misconduct. Trial judges should use their inherent authority to forbid prosecutors from appearing and handling cases in their courtrooms until the prosecutors have completed training on Brady v. Maryland, Batson v. Kentucky, and other types of prosecutorial misconduct. If a single trial judge in a medium-sized or large jurisdiction imposes training prerequisites on prosecutors, it could set off a race to the top that encourages other judges to adopt similar (or perhaps even more rigorous) training requirements. A mandate that prosecutors receive ethics training before handling any cases is …

Contract Law And The Common Good, Brian H. Bix

William & Mary Business Law Review

In The Dignity of Commerce, Nathan Oman offers a theory of contract law that is largely descriptive, but also strongly normative. His theory presents contract law’s purpose as supporting robust markets. This Article compares and contrasts Oman’s argument about the proper understanding of contract law with one presented over eighty years earlier by Morris Cohen. Oman’s focus is on the connection between Contract Law and markets; Cohen’s connection had been between Contract Law and the public interest. Oman’s work brings back Cohen’s basic insight, and gives it a more concrete form, as a formidable normative theory with detailed prescriptions.

How Well Do We Treat Each Other In Contract?, Aditi Bagchi

William & Mary Business Law Review

One of the important contributions of Nathan Oman’s new book is to draw focus onto the quality of the relationships enabled by contract. He claims that contract, by supporting markets, cultivates certain virtues; helps facilitate cooperation among people with diverse commitments; and produces the wealth that may fuel interpersonal and social justice. These claims are all plausible, though subject to individual challenge. However, there is an alternative story to tell about the kinds of relationships that arise from markets--i.e., a story about domination. The experience of domination is driven in part by the necessity, inequality, and competition enjoined by markets, …

Lessons From Ferguson On Individual Defense Representation As A Tool Of Systemic Reform, Beth A. Colgan

William & Mary Law Review

This Article investigates the relationship between the decisions by lawmakers to use municipal and criminal systems to generate revenue and the lack of access to individual defense representation by using the Ferguson, Missouri, municipal court as a case study. The Article chronicles the myriad constitutional rights that were violated on a systemic basis in Ferguson’s municipal court and how those violations made the city’s reliance on the court for revenue generation possible. The Article also documents how the introduction of individual defense representation, even on a piecemeal basis, played a role in altering Ferguson’s system of governance. Using this case …

The Duty To Advise The Lorax: Environmental Advocacy And The Risk Of Reform, Keith W. Rizzardi

William & Mary Environmental Law and Policy Review

Lawyers have an ethical duty to advise their clients on moral, economic, social, and political matters. When applied to the changing field of environmental law, this abstract notion becomes provocative. Lawyers should advise their environmental advocacy clients of the possibility that their efforts to apply statutes or rules might initially succeed, but subsequent legislative reactions might defund, reform, or repeal the laws the client’s case relied upon. As a client’s sophistication decreases, or as the risk of adverse reactions to the client’s environmental advocacy increases, the lawyer’s duty to advise the client of these risks can shift from discretionary to …

School Of Risk Control Excellence: Responsibilities In Tax Practice And Malpractice Risks, Diane S. Wainwright

William & Mary Annual Tax Conference

No abstract provided.

A Child-Centered Response To The Elkins Family Law Task Force, Amy M. Pellman, Robert N. Jacobs, Dara K. Reiner

William & Mary Bill of Rights Journal

In Elkins v. Superior Court, 163 P.3d 160 (Cal. 2007), California’s Supreme Court asked the Judicial Council to form a task force to make recommendations to increase “access to justice” in family court, because it was concerned about rules, policies, and procedures that put self-represented litigants at an unfair disadvantage in parentageand dissolution cases.

Neither the task force’s report in 2010 nor the legislation that the report inspired the same year addresses children’s due process rights, even though children ordinarily have no access to justice. This Article shows that due process sometimes requires the trial court to appoint counsel for …

Imputed Liability For Supervising Prosecutors: Applying The Military Doctrine Of Command Responsibility To Reduce Prosecutorial Misconduct, Geoffrey S. Corn, Adam M. Gershowitz

Faculty Publications

No abstract provided.

Embedded Federal Questions, Exclusive Jurisdiction, And Patent-Based Malpractice Claims, Christopher G. Wilson

William & Mary Law Review

No abstract provided.

Prosecutorial Shaming: Naming Attorneys To Reduce Prosecutorial Misconduct, Adam M. Gershowitz

Faculty Publications

This Article explores the unfortunately large number of instances in which appellate courts reverse convictions for serious prosecutorial misconduct but do not identify the names of the prosecutors who committed that misconduct. Because judges are reluctant to publicly shame prosecutors whose cases are reversed, this Article advocates that a neutral set of third parties undertake the responsibility of publicly identifying prosecutors who have committed serious misconduct. The naming of prosecutors will shame bad actors, provide a valuable pedagogical lesson for junior prosecutors, and signal to trial judges that certain prosecutors must be monitored more closely to avoid future misconduct.

The Citizen-Lawyer - A Brief Informal History Of A Myth With Some Basis In Reality, Robert W. Gordon

William & Mary Law Review

No abstract provided.

Lawyers As Citizens, Deborah L. Rhode

William & Mary Law Review

No abstract provided.

"Public Service Must Begin At Home": The Lawyer As Civics Teacher In Everyday Practice, Bruce A. Green, Russell G. Pearce

William & Mary Law Review

No abstract provided.

The Preemployment Ethical Role Of Lawyers: Are Lawyers Really Fiduciaries?, Fred C. Zacharias

William & Mary Law Review

This Article considers the nature and extent of lawyers' obligations to prospective clients. Most jurisdictions have rules forbidding certain kinds of representation, requiring that particular information be given clients in writing, and regulating fees. Professional code drafters, courts, and commentators, however, have never addressed the broader issue of the lawyer's role at the retainer stage of representation, including whether lawyers have responsibility for providing prospective clients with candid advice regarding the course they should pursue.

The issue is important to clients. A lawyer's action may determine whether a client obtains any representation, competent representation, or a lawyer well suited to …

Four Reflections On Law And Morality , Michael S. Moore

William & Mary Law Review

No abstract provided.

Attorney-Client Privilege In The Public Sector: A Survey Of Government Attorneys, Nancy Leong

Faculty Publications

No abstract provided.

E-Lawyering, The Aba's Current Choice Of Ethics Law Rule & The Dormant Commerce Clause Invalidates Model Rule 8.5(B)(2) When Applied To Attorney Internet Representations Of Clients, Michael W. Loudenslager

William & Mary Bill of Rights Journal

The Internet is becoming the primary manner in which some attorneys serve clients. States have already taken differing views on whether it is acceptable for an attorney to engage in electronic representations of clients. Thus, determining what jurisdiction's law applies to such attorney conduct can be very important in deciding whether this activity constitutes the unauthorized practice of law and, if not, determining the exact duties of an attorney in such representations. This Article argues that the current version of Model Rule of Professional Responsibility 8.5(b), which governs choice of ethics law, can be interpreted to apply the legal ethics …

We Can't Escape Responsibility, Gene R. Nichol

Popular Media

No abstract provided.

Improving Prosecutorial Decision Making: Some Lessons Of Cognitive Science, Alafair S. Burke

William & Mary Law Review

No abstract provided.

The Dubious Origins And Dangers Of Clawback And Quick-Peek Agreements: An Argument Against Their Codification In The Federal Rules Of Civil Procedure, Laura Catherine Daniel

William & Mary Law Review

No abstract provided.

The Federal Government Lawyer's Duty To Breach Confidentiality, James E. Moliterno

Faculty Publications

The lawyer's duty of confidentiality springs from the lawyer-client relationship and its parameters are determined by the nature of that relationship. The federal government lawyer's client is like no other. The uniqueness of representing the United States calls for a unique approach to the duty of confidentiality. Unlike the private individual client, the government as a client does not speak with a single, unmistakable voice. Unlike the private entity client, the federal government has a paramount interest in the public good, including the public's right to know about government (the entity's conduct), especially its misconduct. The result is a client …

Legal Fictions And The Moral Imagination: Female Fictional Lawyers Encounter Professional Responsibility, Kathryn A. Lee, Elizabeth Morgan

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

United States Citizens Detained As "Enemy Combatants": The Right To Counsel As A Matter Of Ethics, Jesselyn A. Radack

William & Mary Bill of Rights Journal

The Supreme Court will decide as a matter of law whether an American citizen detained as an enemy combatant has the right to counsel. The author argues that as a matter of ethics, the answer is clear - there is a right to counsel. In this Article, the author analyzes the cases regarding Jose Padilla and Yaser Esam Hamdi discusses ABA Model Rule 4.2, and its application, and proposes an amendment to Rule 4.2's Comment.

Broad Prohibition, Thin Rationale: The Acquisition Of An Interest And Financial Assistance In Litigation Rules, James E. Moliterno

Faculty Publications

No abstract provided.

Legal Ethics For Environmental Lawyers: Real Problems, New Challenges, And Old Values, Sanford M. Stein, Jan M. Geht

William & Mary Environmental Law and Policy Review

No abstract provided.

Lawyers' Ethics And Fiduciary Obligation In The Brave New World Of Aggregative Litigation, Lester Brickman

William & Mary Environmental Law and Policy Review

No abstract provided.

A Critique Of Burrow V. Arce, Charles Silver

William & Mary Environmental Law and Policy Review

No abstract provided.

Experience And Legal Ethics Teaching, James E. Moliterno

Faculty Publications

No abstract provided.

Ethical Issues For Lawyers In A Multi-Disciplinary Practice World: Combined Resources

William & Mary Annual Tax Conference

No abstract provided.