Law Commons^™

Of Prosecutors And Prejudice (Or "Do Prosecutors Have An Ethical Obligation Not To Say Racist Stuff On Social Media?"), Alex B. Long

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Over the past few years, there have been numerous news stories about prosecutors posting racially inflammatory content on their social media accounts. There have also been several incidents in recent years in which prosecutors have commented on matters of public concern on social media in a way that is not overtly racist but nonetheless raises legitimate concerns over the prosecutors’ integrity and appreciation of the special role that prosecutors play. Concerns over the extent to which prosecutors bring their personal biases into the courtroom have only increased in recent years and have contributed to the doubts as to the overall …

Disciplinary Regulation Of Prosecutorial Discretion: What Would A Rule Look Like?, Samuel J. Levine

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This Essay is the third part of a larger project examining the potential role of professional discipline in the regulation and supervision of prosecutors’ charging decisions. The first two parts of the project argued that courts have both the authority and the ability to exercise effective disciplinary review of charging decisions through the adoption of ethics rules and their enforcement in the disciplinary process. This Essay takes the next step in the project, considering the nature of rules that courts might adopt, by exploring potential rules targeting two improprieties: arbitrary and capricious charging decisions, and discriminatory charging decisions.

Another Look At Lawyer Discretion To Assist Clients In Unlawful Conduct: A Response To Professor Tremblay, Samuel J. Levine

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Professor Paul Tremblay’s At Your Service: Lawyer Discretion to Assist Clients in Unlawful Conduct, identifies and explores an apparent gap in the law governing the work of lawyers: the question of whether lawyers may assist clients in unlawful conduct that is not criminal or fraudulent. After introducing the issue through three illustrative scenarios, which he labels “lawbreaking stories,” Professor Tremblay engages in an extensive analysis of the applicable substantive law, relying primarily on ethics codes, which directly regulate the work of lawyers, with additional reference to other sources of law. Having reached the considered conclusion that the law does not …

In Defense Of The Devil’S Advocate, Lonnie T. Brown

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mong the many controversial positions for which Monroe Freedman advocated during his illustrious career, the one that I find most surprising and uncharacteristic is his contention that lawyers who undertake morally questionable representations have a duty to explain or justify their choice of client. Specifically, in 1993 Professor Freedman penned a well-known column in the Legal Times — titled “Must You Be the Devil’s Advocate?” — in which he took Professor Michael Tigar to task for his representation of reputed Nazi war criminal John Demjanjuk. Professor Freedman tacitly criticized Professor Tigar for his client choice and expressly called upon him …

The Lawyer As Public Figure For First Amendment Purposes, Alex B. Long

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Should lawyers be treated as public figures for purposes of defamation claims and, therefore, be subjected to a higher evidentiary standard of actual malice under the Supreme Court’s decision in New York Times v. Sullivan? The question of whether lawyers should be treated as public figures raises broad questions about the nature of defamation law and the legal profession. By examining the Supreme Court’s defamation jurisprudence through the lens of cases involving lawyers as plaintiffs, one can see the deficiencies and inconsistencies in the Court’s opinions more clearly. And by examining the Court’s defamation cases through this lens, one can …

Teaching The Newly Essential Knowledge, Skills, And Values In A Changing World, Paula Schaefer, Lisa Bliss, Robin A. Boyle, Sylvia B. Caley, Deborah L. Rhode

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This chapter of Building on Best Practices: Transforming Legal Education in a Changing World has contributions from many authors:

• Section A, Professional Identity Formation, includes:
  • Teaching Knowledge, Skills, and Values of Professional Identity Formation, by Larry O. Natt Gantt, II & Benjamin V. Madison III,
  • Integrating Professionalism into Doctrinally-Focused Courses, by Paula Schaefer,
  • Learning Professional Responsibility, by Clark D. Cunningham, and
  • Teaching Leadership, by Deborah L. Rhode.
• Section B, Pro Bono as a Professional Value, is by Cynthia F. Adcock, Eden E. Harrington, Elizabeth Kane, Susan Schechter, David S. Udell & Eliza Vorenberg.
• Section C, The Relational Skills of the …

The Law And The “Spirit Of The Law” In Legal Ethics, Samuel J. Levine

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This article aims to explore the notion of the lawyer’s ethical responsibility to go “beyond” the letter of the law and to comply with the “spirit” or “purpose” of the law. The article suggests that, notwithstanding its promotion of admirable principles and goals, a spirit of the law model may prove inconsistent with basic legal and ethical obligations of lawyers. The lawyer’s duties as fiduciary, as agent, and as zealous advocate, responsible for representing the best interests of the client, preclude the lawyer from focusing on the spirit and purpose of the law rather than on the aims of the …

Michael J. Sandel, What Money Can't Buy: The Moral Limits Of Markets, Maurice Stucke

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No abstract provided.

The Client Who Did Too Much, Nancy B. Rapoport

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Using Hitchcock's MacGuffin as a theme, I discuss the dynamics between client and lawyer when the client so obsesses over the issue driving him that he persuades (or attempts to persuade) the lawyer to do things that are inadvisable from the lawyer's point of view.

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

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This article examines how incentives in law firms can affect lawyer behavior and suggests some possible changes to incentive structures and default rules that might improve the ethical behavior of lawyers.

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 …

Indie Lawyering: A New Model For Solo And Small Firm Practice, Lucille Jewel

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Indie lawyering is a new style of lawyering that uses technology to connect the individual practitioner with individual clients and collaboratively solve legal problems in a community-centered way.

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

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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 …

The Case For Value Billing In Chapter 11, Nancy B. Rapoport

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This article explores the forces contributing to very high professional fees in large Chapter 11 cases and suggests that lawyers might want to consider valuing their services in ways other than the traditional billable hour approach.

Fidelity To Law And The Moral Pluralism Premise, Katherine R. Kruse

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In Fidelity to Law, Wendel presents and defends a comprehensive theory of legal ethics with two interrelated arguments: a functional argument that law deserves respect because of its capacity to settle normative controversy in a morally pluralistic society; and a normative argument that law deserves respect because democratic lawmaking processes respect the equality and dignity of citizens. This review essay questions Wendel’s move from the premise of moral pluralism to his conclusion that the function of law is to settle normative controversy in society on both practical and theoretical grounds. Practically, it argues that law lacks the capacity to …

The Tax Man's Ethics: Four Of The Hardest Ethical Questions For An Irs Lawyer, Michelle M. Kwon

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The traditional approach to legal ethics often is characterized to mean that lawyers must zealously advocate for their clients’ objectives tempered only by the bounds of the law. In contrast to the traditional approach, the public interest approach to legal ethics extends a government lawyer’s professional ethical duties from the agency client to the public at large to further the public interest. Commentators, in advocating either the traditional approach or the public interest approach to government lawyering, disagree about whether a government lawyer owes some sort of duty to the public and if so, the nature and scope of that …

Taking The Ethical Duty To Self Seriously: An Essay In Memory Of Fred Zacharias, Samuel J. Levine

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No abstract provided.

Engaged Client-Centered Representation And The Moral Foundations Of The Lawyer-Client Relationship, Katherine R. Kruse

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The field of legal ethics, as we know it today, has grown out of thoughtful, systematic grounding of lawyers’ duties in a comprehensive understanding of lawyers’ roles and the situating of lawyers’ roles in underlying theories of law, morality, and justice. Unfortunately, in the process, the field of theoretical legal ethics has mostly lost track of the thing that Freedman insisted was at the heart of a lawyers’ role: the integrity of the lawyer-client relationship. As I will discuss, the field of theoretical legal ethics has developed in ways that are deeply lawyer-centered rather than fundamentally client-centered. I am going …

The Jurisprudential Turn In Legal Ethics, Katherine R. Kruse

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When legal ethics developed as an academic discipline in the mid-1970s, its theoretical roots were in moral philosophy. The early theorists in legal ethics were moral philosophers by training, and they explored legal ethics as a branch of moral philosophy. From the vantage point of moral philosophy, lawyers’ professional duties comprised a system of moral duties that governed lawyers in their professional lives, a “role-morality” for lawyers that competed with ordinary moral duties. In defining this “role-morality,” the moral philosophers accepted the premise that “good lawyers” are professionally obligated to pursue the interests of their clients all the way to …

Philosophical Legal Ethics: Ethics, Morals, And Jurisprudence, Katherine R. Kruse

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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.

You're Doing It Wrong: How The Anti-Law School Scam Blogging Movement Can Shape The Legal Profession, Lucille Jewel

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One of the biggest social advancements that the Internet has given us is the capacity for an individual’s idea to reach a mass audience. Internet-based communication forms, particularly blogs, enable an idea to gain credence without the involvement of traditional mass media outlets, such as newspapers or television stations. With no “top-down” filter that controls what ideas get disseminated, the Internet can amplify voices speaking from outside the mainstream culture that perhaps would not be heard under the traditional media system. The open network structure of the Internet also allows ideas to reach broad audiences and enables individuals, operating independently, …

Relationships, The Rules Of Professional Conduct And Land Use: Ethical Quagmires For Land Use Attorneys, Patricia E. Salkin

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This article begins to fill the void by introducing the application of the various Rules of Professional Conduct, as adopted by the specific opining jurisdiction, through a review of the relevant reported opinions of the various committees and sometimes courts, in the land use context. Part I discusses the challenges that arise for lawyers vis-à-vis their clients in the land use context. This is followed by a discussion in Part II of the ethics and professionalism issues that confront lawyers who serve on local boards.

Through A Glass Darkly: Using Brain Science And Visual Rhetoric To Gain A Professional Perspective On Visual Advocacy, Lucille Jewel

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American legal culture, tracking the trend within the media culture as a whole, has become inherently more visual. Visual competency is now required for effective persuasion in the courtroom and in a variety of other advocacy settings. The central thesis of this Article is that visual advocacy is here to stay, but that there is a large knowledge gap that prevents advocates from being able to evaluate the professionalism of their own visual arguments and properly respond to the visual arguments submitted by their opposing counsel.

Accordingly, this Article offers a detailed outline of the knowledge bases that attorneys need …

The Ethics Of Blawging: A Genre Analysis, Judy Cornett

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Lawyers are blogging. As of October 16, 2009, the website Blawg.com tracked 2,788 legal blogs ("blawgs"). Another blawg directory compiled 4,622 blawgs in 69 substantive categories. When lawyers communicate, by whatever medium, ethical dilemmas arise; when lawyers blog, ethical dilemmas arise that are unique to blogging. The most visible ethical debate inspired by this new genre is the issue of whether to treat a lawyer's blog as advertising. Surprisingly, given the popularity of blawging, there are few resources addressing the full range of its ethical ramifications. This Article applies genre theory to blawging in order to highlight certain characteristics of …

Swimming With Shark, Nancy B. Rapoport

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In this essay, Nancy Rapoport discusses how Sebastian Stark (played by James Woods) seduces the lawyers on his legal team into ignoring legal ethics in favor of Stark's own version of ethics. Stark -- a criminal defense lawyer who becomes a deputy district attorney -- bends the ethics rules past the breaking point in order to put bad guys behind bars. His team of lawyers knows right from wrong but follows Stark's lead in breaking the rules anyway.

The Corporate Lawyer's Role In A Contemporary Democracy, Colin Marks, Nancy B. Rapoport

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This paper reviews the traditional arguments for corporate social responsibility and asks the question of what corporate lawyers should do to help their clients do the right thing ethically. It also sets out a test - the technically test -- that highlights when something is usually on the wrong side of the ethical line. (If you have to give legal advice starting with "Well, technically...," you're on the wrong side of the line.)

Beyond Cardboard Clients In Legal Ethics, Katherine R. Kruse

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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 …

The Human Dignity Of Clients, Katherine R. Kruse

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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 …

"Lawyers" Not "Liars": A Modified Traditionalist Approach To Teaching Legal Ethics, Lonnie T. Brown

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As attorneys, we undeniably should be faithful confidantes to, and staunch allies for, our clients, but we must also never lose sight of the fact that we are not simply client representatives; we are concurrently officers of the court and keepers of the public trust. Though I strive diligently to make my students aware of the specific ethical duties owed to clients, I always stress even more intently the importance of these latter two components of their professional obligation. They are what set the practice of law apart from other occupations, and they are what should serve to inspire us …

Fortress In The Sand: The Plural Values Of Client-Centered Representation, Katherine R. Kruse

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This article examines the history, development and theory of the client-centered approach to lawyering, which has become the most prevalent theory of lawyering taught in law school clinics. It examines the basic tenets of client-centered representation as a problem-solving approach and shows how critique and modification of the approach has spawned a diversity of lawyering models that share the basic tenets of client-centered representation but are in tension with its preferred methodology of lawyer neutrality. The article draws on theories of autonomy to help explain this tension, showing that notions of positive freedom support a range of autonomy-enhancing intervention into …

Lawyers, Justice And The Challenge Of Moral Pluralism, Katherine R. Kruse

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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 …