Law Commons^™

Ethical Issues In Business And The Lawyer's Role, Tamar Frankel, Mark Fagan, Robert Rhee, Carol Morgan

Faculty Scholarship

Q&A with Robert Rhee, Carol Morgan, Tamar Frankel, and Mark Fagan regarding courses focused on business ethics.

Good afternoon everyone. I am Carol Morgan. I am with the University of Georgia School of Law's Business Law and Ethics program. I'm joined today by very distinguished panelists, Tamar Frankel from Boston University and Robert Rhee from the University of Maryland. You will hear a lot more about them during our program today. I am glad to see this interest in the topic of business ethics. Law schools have not traditionally put a lot of attention or focus on the subject of …

Role Differentiation And Lawyer's Ethics: A Critique Of Some Academic Perspectives, William H. Simon

Faculty Scholarship

Much recent academic discussion exaggerates the distance between plausible legal ethics and ordinary morality. This essay criticizes three prominent strands of discussion: one drawing on the moral philosophy of personal virtue, one drawing on legal philosophy, and a third drawing on utilitarianism of the law-and-economics variety. The essay uses as a central reference point the "Mistake-of-Law" scenario in which a lawyer must decide whether to rescue an opposing party from the unjust consequences of his own lawyer's error I argue that academic efforts to shore up the professional inclination against rescue are not plausible. I conclude by recommending an older …

Philosophical Legal Ethics: Ethics, Morals, And Jurisprudence, Alice Woolley, W. Bradley Wendel, William H. Simon, Stephen Pepper, Daniel Markovitz, Katherine R. Kruse, Tim Dare

Faculty Scholarship

The authors and moderator David Luban participated in a plenary session of the International Legal Ethics Conference IV, held at Stanford. Each author answered and discussed questions arising from short papers they had written about the principal concern of legal ethics was the morality of lawyers, the morality of clients, or the morality of laws?

Those papers, which are to be published in Legal Ethics, are compiled here, along with the question and background information with which the panelists were provided.

A Tale Of Two Judges : A Judge Advocate’S Reflections On Judge Gonzales’S Apologia, Charles J. Dunlap Jr.

Faculty Scholarship

This is a response to - and reflection about - Judge Alberto Gonzales's essay in the Texas Tech Law Review entitled "Waging War Within the Constitution" 42 Tex. Tech. L. Rev. 843 (2010). It argues that national security law policy in an era of complex challenges is best designed when the expertise of the widest number of knowledgeable practictioners is brought to bear in a principled and fearless manner.

Beyond Cardboard Clients In Legal Ethics, Kate Kruse

Faculty Scholarship

This Article argues that the construction of cardboard clients in legal ethics has disserved legal ethics by obscuring what is arguably a more central problem of legal professionalism: the problem of legal objectification. The problem of legal objectification is the tendency of lawyers to "issue-spot" their clients as they would the facts on a blue-book exam, overemphasizing the clients' legal interests and minimizing or ignoring the other cares, commitments, relationships, reputations and values that constitute the objectives clients bring to legal representation. This Article proposes an alternative ideal of legal professionalism for "three-dimensional clients" based on helping clients articulate and …

Lawyers In Character And Lawyers In Role, Kate Kruse

Faculty Scholarship

Legal ethicists have long been fascinated by the relationships between lawyers’ roles in an adversary system of justice and the character, attitudes, or dispositions that best suit the practice of law. Leonard Riskin’s scholarship has explored how lawyers’ practice of mindfulness can improve their legal practice, and his claim in this body of work – that the practice of mindfulness helps to develop the internalized trait of mindfulness – ties his scholarship to the work of legal ethicists who have endeavored to develop character-based theories of legal ethics. Riskin’s analysis of how lawyers might incorporate mindfulness into law practice also …

Professional Responsibility In Crisis, Douglas L. Colbert

Faculty Scholarship

Some rare, often catastrophic, events present in stark terms a need for careful reflection over the role of attorneys in our society and their ethical duties as members of the legal profession. The devastation caused by both Hurricane Katrina in 2005 and the terrorist attacks on September 11, 2001 certainly falls within this category. Professor Colbert uses these events as a backdrop to examine the legal profession’s ethical obligation when crisis compromises the most basic elements of our system of justice. Acknowledging that numerous members of the bar and thousands of volunteer law students courageously stepped forward in those challenging …

The Past, The Present, And Future Of Legal Ethics: Three Comments For David Luban, William H. Simon

Faculty Scholarship

David Luban helped invent the field of legal ethics some years ago; Legal Ethics and Human Dignity provides an opportunity to assess how it has developed. By way of both homage and critique, I offer three comments on central issues that the book raises: the nature of the moral foundations of lawyers' ethics; the relation of legal and ordinary moral norms in legal ethics decisions; and the relation of ethical norms and organization.

I associate the issue of moral foundations with the past because modern academic discussion of legal ethics began with this focus. The relationship between law and morals …

Preventive Law: A Strategy For Internal Corporate Lawyers To Advise Managers Of Their Ethical Obligations, Z. Jill Barclift

Faculty Scholarship

This article examines the efficacy of Preventive Law jurisprudence to internal corporate law practice. The article compares internal corporate law practice to the practice approach of Preventive Law. The article explores the benefits of Preventive Law jurisprudence to internal corporate law practice. Part I discusses the history and various vectors of Preventive Law. Part II examines the responsibilities of corporate law departments. Part III compares Preventive Law practice skills to internal corporate law practice, and explores the utility of Barton’s problem solving approaches to internal corporate law practice. Finally, the article concludes arguing internal corporate law practice is Preventive Law …

Conflicts Of Interest And Disclosures: Are We Making A Mountain Out Of A Molehill, David Allen Larson

Faculty Scholarship

The ethical standards governing conflicts of interest disclosure requirements for arbitrators and mediators are numerous and varied. In spite of the considerable attention that conflict of interest questions attract, both the extent to which an arbitrator must disclose past, present, and potential conflicts of interest and the consequences of a failure to make an appropriate disclosure remain unclear. This article examines disclosure requirements themselves, as well as the sanctions and penalties that may result from a failure to disclose information concerning a neutral's impartiality. Particular attention is paid to what generally is regarded as the most extreme consequence of failure; …

The Human Dignity Of Clients, Kate Kruse

Faculty Scholarship

This essay reviews David Luban's forthcoming book, Legal Ethics and Human Dignity. At the heart of this new book is an argument that interactions between lawyers and clients ought to be at the center of jurisprudential inquiry. Pointing out that most cases do not go to trial and that much transactional work occurs outside the litigation context, he argues that law's defining moments occur when a "client sketches out a problem and a lawyer tenders advice," rather than when a judge decides a litigant's case. This review essay examines how Luban might elaborate a new "jurisprudence of lawyering" by examining …

Challenges And Guidance For Lawyering In A Global Society, Susan Saab Fortney

Faculty Scholarship

This foreword provides an overview of some key aspects of law practice that have changed over the last thirty years. Advancements in technology that allow communication and interaction across borders have facilitated lawyers in globalizing their practice locality. Consequently, new issues regarding comparative ethics have arisen. This foreword suggests that ethics rules have not kept pace with the changing landscape of law practice and uses current standards for advanced waivers, rules relating to contracts with represented and unrepresented persons, and the proper use of ethics rules in civil litigation to illustrate this point. This foreword raises concern over the erosion …

After Confidentiality: Rethinking The Professional Responsibilities Of The Business Lawyer, William H. Simon

Faculty Scholarship

Recent business scandals and the regulatory responses to them raise basic questions about the role of the business lawyer. Lawyers were major participants in Enron and in similar controversies over corporate disclosure. Lawyers have also been key players in the corporate tax shelter industry. In both instances, their conduct has prompted federal regulations that repudiate to an unprecedented degree the bar's traditional understanding of its structure and obligations.

The provision of the Sarbanes-Oxley Act of 2002 mandating "up-the-ladder" reporting by public corporation counsel was the first federal statute in American history to regulate lawyers directly and broadly. The second came …

The Ethics Teacher's Bittersweet Revenge: Virtue And Risk Management, William H. Simon

Faculty Scholarship

Insurance companies have come to play a role in professional responsibility compliance that rivals that of courts and disciplinary agencies. The insurers, however, depart from the judicial perspective of the traditional enforcement agencies. Instead, they take the risk management perspective that Anthony Alfieri describes.

I agree with Alfieri that risk management poses real dangers of cynicism and Babbittry. Nevertheless, I also see more upside than he does. The new perspective is valuable, not just as a strategy for attracting student attention, but as an antidote to real and basic deficiencies in mainstream ethics teaching and traditional professional practice. In this …

The Ethics Of Invalid And 'Iffy' Contract Clauses, In Symposium: Contracting Out Of The Uniform Commercial Code, Christina L. Kunz

Faculty Scholarship

This Symposium focuses on the extent to which attorneys can use agreed terms to supplant or “bump” the provisions of the Uniform Commercial Code (UCC). The articles in this Symposium demonstrate that the degree to which attorneys customarily “contract out” varies considerably from UCC article to article. In reality, though, the issues surrounding contracting out of UCC provisions are not limited to the UCC, statutes, or other codified rules. Most “repeat players” in the market periodically ask their lawyers to redraft their standard-form contracts in ways that increasingly favor the drafter. Some of these lawyers may intentionally draft clauses that …

The Post-Enron Identity Crisis Of The Business Lawyer, William H. Simon

Faculty Scholarship

The practices and institutions of business lawyering are undergoing a reassessment and revision as radical as anything that has occurred since the late nineteenth century, when the modern professional association and the modern corporate law firm were born. The pace of change has intensified,but its directions remain contested. The articles in this colloquium depict a corporate bar torn between competing role conceptions along a variety of dimensions.

Religious Lawyering's Second Wave, Russell G. Pearce, Amelia J. Uelmen

Faculty Scholarship

Since the mid-1990s, the "religious lawyering movement" has expanded dramatically, receiving greater attention within the academy and the bar. As the movement enters what we term its "second wave" of development, this essay begins with a look back to its "first wave" of path-breaking scholarship and its gradual shift toward more institutionalized structures and programs. It argues that the predominant characteristic of first-wave religious lawyering scholarship was to claim a space within the professional conversation for lawyers to bring religious values to bear on their work. The essay then predicts that in the second wave religious lawyering conversations and scholarship …

Lawyers, Justice And The Challenge Of Moral Pluralism, Kate Kruse

Faculty Scholarship

The debate over whether it serves or undermines the interests of justice for lawyers to temper the zeal of their advocacy based on considerations of morality or justice has largely been polarized between two camps: traditionalists and moralists. Traditionalists defend the amoral role of lawyers, arguing that lawyers should remain moral neutral in their representation of clients. Moralists propose alternative social justice lawyering models, which urge lawyers' morally engagement in their choice of clients, their interpretation of law, and their counseling of clients.

This article revisits the debate by recasting the question at its center. Instead of inquiring what a …

Interviewing Ex-Employees: One Answer, New Questions, Susan P. Koniak

Faculty Scholarship

In Clark v. Beverly Health and Rehabilitation Services, Inc., 440 Mass. 270, 797 N.E.2d 905 (2003), the Supreme Judicial Court held that a lawyer for a party may contact former employees of the opposing party without violating Mass. r. Prof. C. 4.2. Lawyers who represent entities with former employees are not happy because, where 4.2 applies, the Rule makes it harder for the other side's lawyers to obtain information that might be damaging to the organization. Understandable. But some purport to be aghast, which is ridiculous. The Clark holding is in line with the ABA's position, the text of …

Environmental Legal Professionalism Adapted To Citizen Suit Processes, Brion Blackwelder

Faculty Scholarship

No abstract provided.

Religious Lawyering In A Liberal Democracy: A Challenge And An Invitation William A. Brahms Lecture On Law & Religion, Russell G. Pearce

Faculty Scholarship

At a time when many believe that law is no longer a noble profession, many lawyers see no reason to devote time and energy to promoting the public good. Religious lawyering may offer a powerful antidote: a robust framework for lawyers to integrate into their professional lives their most deeply rooted values, perspectives and critiques, and persuasive reasons to improve the quality of justice and work for the common good. At its best, religious lawyering echoes Martin Luther King's advice to the street sweeper. How wonderful it would be, indeed, if we practiced law so well that the host of …

When The Hurlyburly's Done: The Bar's Struggle With The Sec, Susan P. Koniak

Faculty Scholarship

Enron went bust. Global Crossing went bust. WorldCom went bust. And underneath all their apparent gold we found, not mere mistakes, but rot and more rot and more rot still. And the rot had to be named, and it was: accounting scandal. The name stuck, and names matter. Arthur Andersen knows.

Whom (Or What) Does The Organization's Lawyer Represent?: An Anatomy Of Intraclient Conflict, William H. Simon

Faculty Scholarship

Professional responsibility issues involving organizational clients are distinctively difficult because organizations consist of constituents with conflicting interests. Legal doctrine has only recently begun to address the effect of internal conflict on a lawyer's responsibilities to an organizational client. Under current doctrine, the lawyer's responsibilities differ strongly depending on whether the representation is characterized as 'joint" representation of the organization 's constituents or "entity" representation. This Article argues that the choice between the two characterizations often has been arbitrary and that the underlying differences between them have been misunderstood. With respect to entity representation, it criticizes a prominent tendency in the …

Corporate Fraud: See Lawyers, Susan P. Koniak

Faculty Scholarship

The accounting profession must bear a good deal of responsibility for the current wave of corporate scandals, as must those CEOs whose watchword was greed, lackadaisical directors, projections-for-hire investment analysts, banks selling methods designed to deceive, and institutional investors asleep at the switch. One set of villains, however, have managed thus far to float beneath the radar screen and thus escape the lion-sized portion of blame that should rightly be laid at their door: lawyers.

Are Agreements To Keep Secret Information In Discovery Legal, Illegal Or Something In Between?, Susan P. Koniak

Faculty Scholarship

For at least eight years before the public and government authorities learned of the apparently dangerous combination of Ford Explorer sport utility vehicles ("SUVs") and their Bridgestone/Firestone brand of tires, Firestone had been settling lawsuits involving injuries and deaths caused by their tires failing on Ford SUVs. These settlements included terms requiring the plaintiffs and their lawyers to keep quiet about the settlements and about information learned through discovery, including information that might have alerted the public or the government to just how unsafe the Explorer/Firestone combination actually was. In some cases, these secrecy provisions were reinforced by court protective …

Legal Ethics Must Be The Heart Of The Law School Curriculum Symposium: Recommitting To Teaching Legal Ethics- Shaping Our Teaching In A Changing World, Russell G. Pearce

Faculty Scholarship

Despite what seems to be far greater attention paid to the teaching of legal ethics than to any other law school subject, legal ethics remains no better than a second class subject in the eyes of students and faculty. This essay suggests that all efforts at innovation in legal ethics teaching are doomed to a marginal impact at best. Only recognition that legal ethics is the most important subject in the law school curriculum will lead to real and significant changes in the teaching of legal ethics. If the commitment of the legal profession and of legal academia to producing …

Unconscionable Lawyers, Paul D. Carrington

Faculty Scholarship

No abstract provided.

Is Tom Shaffer A Covenantal Lawyer?, Marie Failinger

Faculty Scholarship

In this festschrift article in honor of Tom Shaffer, the author considers what Shaffer’s work may share with “covenantal” ethics, a form of ethical argument that is not interchangeable with other traditions familiar from Shaffer’s body of work, such as the ethics of friendship or care or the ethics of virtue. Describing the ancient understanding of covenants, the article explores a few of the complexities arising from covenantal ethics in a professional context, themes such as the creation of obligation by historical decision, which has implications for the treatment of strangers; the ambivalence of covenantal ethics on the value of …

In Hell There Will Be Lawyers Without Clients Or Law, Susan P. Koniak, George M. Cohen

Faculty Scholarship

More than twenty years ago, moral philosopher Richard Wasserstrom framed the debate in legal ethics by asking two questions. Does the lawyer's duty to zealously represent the client, constrained only by the bounds of the law, render the lawyer "at best systematically amoral and at worst more than occasionally immoral in ... her dealings with the rest of mankind[?]" And is the lawyer's relationship with the client likewise morally tainted in that it generally entails domination by the lawyer over the client rather than mutual respect? Wasserstrom answered both questions affirmatively. Though these questions have preoccupied legal ethics scholars ever …

Is It Educational Malpractice Not To Teach Comparative Legal Ethics?, Susan Saab Fortney

Faculty Scholarship

This article addresses the importance of teaching legal ethics in law schools. After a brief introduction, this article outlines several reasons why it is necessary to have formal ethical training in law schools. The article then explains the different methods of teaching legal ethics that are utilized in the United States. The article also details why it is important and how to teaching comparative legal ethics in law schools due to increased globalization. The article concludes by identifying sources, such as the internet, for teaching comparative legal ethics.