Law Commons^™

Re-Defining Pro Bono: Professional Commitment To Public Service, Gary A. Munneke

Elisabeth Haub School of Law Faculty Publications

This article suggests that the current version of Rule 6.1 of the Model Rules of Professional Conduct has not achieved its objective of fostering universal public and pro bono service among lawyers, and proposes a change to the current rule that hopefully will be more successful in achieving these laudable objectives. From the earliest days of the Anglo-American legal profession, lawyers have understood public, or pro bono publico, service to be fundamental to their identity as professionals. During the last half of the 20th century, however, this evolution became a revolution, as pro bono increasingly came to be identified with …

Prosecutorial Ethics And Victims' Rights: The Prosecutor's Duty Of Neutrality, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

In recent years, enhanced legal protections for victims has caused victims to become increasingly involved in the criminal justice process, often working closely with prosecutors. In this Article, Professor Gershman analyzes the potential challenges to prosecutors' ethical duties that victims'participation may bring and suggests appropriate responses.

Prison Reform Revisited: The Unfinished Agenda, Michael B. Mushlin

Elisabeth Haub School of Law Faculty Publications

Prison Reform Revisited: The Unfinished Agenda, which was held at Pace Law School from October 16-18, 2003, was a remarkable event. At this conference--a summit really--leading academics, attorneys, prison reformers, judges, prison officials and international prison reformers gathered at Pace Law School and the New York State Judicial Center in White Plains, New York to discuss how to advance the cause of prison reform in the U.S. This issue of the Pace Law Review is devoted to the papers presented in connection with that important conference.

Securities Analysts' Undisclosed Conflicts Of Interest: Unfair Dealing Or Securities Fraud?, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

This article addresses recent regulatory efforts to proscribe undisclosed conflicts of interest beyond mere scalping, including ownership interests in recommended securities, and the compensation connection between analysts and investment bankers within a firm. Part III of this article traces the history of prior cases imposing liability on industry participants, including investment advisers, analysts and others, for failing to disclose their conflicts of interest when recommending securities. Part IV of this article then examines the question of whether analysts have any civil liability to those relying on their recommendations for failure to disclose actual or potential conflicts of interest. Finally, the …

Just Being A Lawyer: Reflections On The Legal Ethics Of A President Under Impeachment, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

The core vice that Posner finds in Clinton’s efforts to contain the truth of the Lewinsky affair is very similar to a fault the public perceives in the behavior of lawyers generally. Namely, lawyers often try to obscure or distract from factual truth order to prevent the law from applying as intended. Most of this avoidance behavior is technically lawful because, for pragmatic reasons, allowances for such avoidance have been deliberately built into the criminal laws against perjury, obstruction of justice and the like. These allowances are a compromise that the law makes with morals so its criminal prohibitions will …

The Prosecutor's Duty To Truth, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Part I of this Article discusses the prosecutor's duty to refrain from conduct that impedes the search for truth. A prosecutor may impede the truth-finding process in several ways: (1) distorting the truth by attacking the defendant's character, misleading and misrepresenting facts, and engaging in inflammatory conduct; (2) subverting the truth by making false statements and presenting false evidence; (3) suppressing the truth by failing to disclose potentially truth-enhancing evidence or obstructing defense access to potentially truth-enhancing evidence; and (4) other truth-disserving conduct that exploits defense counsel's misconduct and mistakes and prevents introduction of potentially truth-serving defenses. Part I also …

Current Issues In The Psychiatrist-Patient Relationship: Outpatient Civil Commitment, Psychiatric Abandonment And The Duty To Continue Treatment Of Potentially Dangerous Patients--Balancing Duties To Patients And The Public, Vanessa Merton, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Abuse Of Confidentiality And Fabricated Controversy: Two Proposals, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

This article is framed as a discussion of two proposals for modifying the Model Rules. One would declare fabricated controversy to be out of bounds as a tactical tool. The other would expressly affirm that it is an abuse of confidentiality for lawyers to engage in strategies of partial-truth advocacy, to assert partial truths while deliberately holding back other information that the lawyer should know is needed in order not to mislead others. Both of these techniques, fabrication of controversy and partial-truth advocacy, tend to undercut the trial as a “search for truth” and both interfere with negotiations as a …

What Do You Do When You Meet A "Walking Violation Of The Sixth Amendment" If You're Trying To Put That Lawyer's Client In Jail?, Vanessa Merton

Elisabeth Haub School of Law Faculty Publications

For the purpose of this article, the relevance of my experience as a criminal defense attorney is this: if ever one might expect to find a prosecutor inclined to err on the side of fairness of process and protecting the rights of defendants, it ought to be me. Also, for more than twenty years, I have been something of a professional ethicist--as research fellow, teacher, staff member of an ethics center, chair and/or member of several institutional review boards, pro bono trial counsel to a disciplinary committee, ethics consultant, and expert witness--and, therefore, one might think, especially susceptible to the …

The National Association Of Honest Lawyers: An Essay On Honesty, "Lawyer Honesty" And Public Trust In The Legal System, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

The growing public disquiet about lawyer ethics is not mainly because people think lawyers neglect their professional standards. Rather, the main problem is the belief among lawyers that the duty of loyalty to clients requires a lawyer to mislead. Specifically, the ethical duty of confidentiality and the ethical duty of zealous advocacy are interpreted together to mean that lawyers must conceal some facts (‘confidentiality‘) while forcefully asserting others. This mis-coupling of these two key ethical duties has an inevitable tendency to produce a kind of partial-truth advocacy in which the lawyer knowingly distracts attention from the truth and fosters misconceptions …

Review Of "Trying Cases: A Life In The Law" By Haliburtan Fales Ii, Jay C. Carlisle

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Lawyers, Accountants, And The Battle To Own Professional Services, Gary A. Munneke

Elisabeth Haub School of Law Faculty Publications

Competition between lawyers and accountants is not a new concept. At various times during the past century, these two professions have clashed over the scope and definition of their respective services. Lawyers traditionally have relied upon a professional monopoly to provide “legal” services as a device to exclude nonlawyers from the practice of law. Supported by statutes in many jurisdictions making the unauthorized practice of law a criminal offense and ethics rules prohibiting lawyers from assisting in the unauthorized practice of law, lawyers have always been able to identify some inner sanctum of professional services that only they could handle. …

A Nightmare On Main Street (Part Mxl): Freddie Joins An Accounting Firm, Gary A. Munneke

Elisabeth Haub School of Law Faculty Publications

The subject of multidisciplinary practice (“MDP”) has intrigued me for well over a decade. The topic has led me into new areas of research, and sometimes into the cross hairs of colleagues in the legal profession. My views have not always represented the mainstream of thinking among lawyers, and that is reflected in the title of my talk today: “A Nightmare on Main Street (Part MXL): Freddie Joins an Accounting Firm.”

The Standard Of Care In Legal Malpractice: Do The Model Rules Of Professional Conduct Define It?, Gary A. Munneke

Elisabeth Haub School of Law Faculty Publications

This Article will review existing case law and commentary, and propose a new formula for application of rules of professional conduct in determining the standard of care to which attorneys should be held in malpractice cases. The authors will argue in favor of establishing a position that state rules of professional conduct create certain specific standards of lawyer behavior that constitute a minimum standard of conduct and a minimum standard of care for every individual attorney practicing in each jurisdiction.

Mental Culpability And Prosecutorial Misconduct, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

This Article argues that a prosecutor's intent is always relevant to the courts' analysis of misconduct, and that the courts should always consider a prosecutor's intent in determining whether a rule was violated and whether the verdict was prejudiced. Part II of this Article examines the use of the objective test to analyze a prosecutor's trial conduct. Part II offers several reasons courts give for avoiding inquiry into a prosecutor's mental culpability, analyzes those reasons, and concludes that although the application of an objective test is sufficient to correct misconduct in some instances, it does not foreclose application of a …

A Little Known History Of Truth, Steven H. Goldberg

Elisabeth Haub School of Law Faculty Publications

This was written in response to a call from the W.M. Keck Foundation for essays on the topic: To what extent should the ethical responsibilities of a lawyer in civil litigation include the obligation to assist the judge or jury in arriving at the truth? I am grateful to the W.M. Keck Foundation for pressing the important dialogue about how our legal system and those who work in it ought to serve our society and for forcing me to think again about why we lawyers are who we are. It took me almost thirty years of trying cases, deaning, and …

New Insights On Waiver And The Inadvertent Disclosure Of Privileged Materials: Attorney Responsibility As The Governing Precept, Audrey Rogers

Elisabeth Haub School of Law Faculty Publications

This Article suggests that fostering the development of attorney responsibility should be the central goal in addressing the issues raised by the inadvertent disclosure. Deciding the waiver issue by concentrating on attorney responsibility will help prevent inadvertent disclosures (and resultant waivers) by impressing upon the attorney the need to take care to avoid them. When disclosures inadvertently occur, the amount of precautions the attorney took (albeit unsuccessfully) should determine whether the privilege is waived. Placing the onus of precautions against inadvertent disclosure on the attorney is not only beneficial to the client, but also aids the profession, and the overall …

A Moral Standard For The Prosecutor's Exercise Of The Charging Discretion, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

This Essay does not attempt to retrace the subject of prosecutorial discretion from the standpoint of the controlling factors, doctrinal limitations, or norms of conduct applicable to prosecutors generally. Rather, it addresses the charging process in a narrower compass. It poses three hypothetical cases that present both realistic and recurrent challenges to the prosecutor's charging power. The first case de pends on a factual determination of a witness's reliability; the second case depends on a factual determination of a witness's truthfulness; the third case revolves around not a factual determination but, rather, a legal determination regarding the applicability of a …

Dances With Nonlawyers: A New Perspective On Law Firm Diversification, Gary A. Munneke

Elisabeth Haub School of Law Faculty Publications

In this Article, Professor Munneke continues the debate over ethical rules governing lawyers' professional affiliations with nonlawyers, arguing in favor of the adoption of uniform rules that regulate lawyers' conduct in the context of specific ethical issues, such as confidentiality and conflicrs of interest. In Professor Munneke's view, the retention of ethical rules that prohibit law firm diversification impedes the ability of lawyers to compete effectively in today's rapidly changing marketplace of professional services.

Professor Munneke moreover questions whether state bar association rules that prohibit law firm diversification are capable of withstanding judicial scrutiny under the federal antitrust laws and …

The Adversarial System At Risk, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

The most ominous recent development affecting the balance of forces in the adversary system is the unprecedented attack by prosecutors on criminal defense lawyers themselves. Grand jury subpoenas to attorneys, law office searches, disqualification motions, fee forfeiture proceedings, and, most recently, IRS attempts to enforce currency-reporting regulations do not seem to be isolated occurrences or mere happenstance. Rather, perhaps inspired by Shakespeare's injunction in Henry VI to "kill all the lawyers," some prosecutors appear to have concluded that the most effective way to prevail in the battle against crime is to cripple the defense lawyers, particularly those who represent defendants …

The Lawyer's Duty To Keep Clients Informed: Establishing A Standard Of Care In Professional Liability Actions, Gary A. Munneke

Elisabeth Haub School of Law Faculty Publications

This Article will explore the problem of the attorney's duty to provide clients with adequate information to make informed decisions. It will discuss situations in which such a duty is appropriate, and suggest that a cause of action for informed consent must be limited to those fact patterns where courts have established the right of the client to make the decision. The analysis rejects establishment of a broad right of the client to control all aspects of the representation. The Article will first review the history of the development of professional liability law with particular emphasis on the medical profession, …

Heaven Help The Lawyer For A Civil Liar, Steven H. Goldberg

Elisabeth Haub School of Law Faculty Publications

In April of 1987, the American Bar Association's Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 87-353. Influenced by the problem of a criminal defendant's potential perjury, as discussed in Nix v. Whiteside, the Formal Opinion focuses on subsection 3.3(a)(2) of Model Rule 3.3, rather than on subsection 3.3(a)(4). As a result, the Opinion advises all lawyers — civil and criminal — who know that their clients will lie to the jury, to “disclose the client's intention to testify falsely to the tribunal,” unless they can withdraw from the representation or prohibit the prospective lie. It advises lawyers …

The Former Client's Disqualification Gambit: A Bad Move In Pursuit Of An Ethical Anomaly, Steven H. Goldberg

Elisabeth Haub School of Law Faculty Publications

This Article contends that the successive conflict and imputed disqualification rules in combination are both bad law and bad ethics and that a different approach would be better for clients, for the adversary system, and for the profession. Part I of the Article analyzes the development of the successive conflict and the imputed disqualification doctrines. It demonstrates that two different, not always consistent, theories caused the successive conflict disqualification principles to develop erratically, resulting in a set of rules incompatible with either supporting rationale. Part II explains why the incorporation of that set of rules into the Model Rules of …

Attorney Loyalty And Client Perjury - A Postscript To Nix V. Whiteside, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

How much, if at all, can a criminal defense lawyer cooperate in his or her client's decision to commit perjury? Courts, commentators, and bar committees have grappled with this question for years without offering clear or consistent guidelines. Any principled response must take into account some very hard questions. Under what circumstances, for instance, does the lawyer ever really "know" that his client's proposed testimony is false? Is it sufficient if the lawyer simply disbelieves his client's story, or that of his client's witnesses? Does it make any difference if the attorney learns of a plan to perjure during the …

Confidentiality And The "Dangerous" Patient: Implications Of Tarasoff For Psychiatrists And Lawyers, Vanessa Merton

Elisabeth Haub School of Law Faculty Publications

This essay examines the role conflict of the professional whose patient or client may be “dangerous” to others, and the ways in which professional standards of ethics and practice, incorporated by judicial ruling, contribute to that role conflict. The paper's focus is on the plight of the psychiatrist, but it also addresses the strain felt by the lawyer who either represents such a client or is asked to advise a psychiatrist who has such a patient. It suggests that health-care providers are not altogether justified in assigning sole responsibility for some of their professional difficulties to the law's incursions on …