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Articles 31 - 44 of 44
Full-Text Articles in Law
Regulating The Behavior Of Lawyers In Mass Individual Representations: A Call For Reform., Richard Zitrin
Regulating The Behavior Of Lawyers In Mass Individual Representations: A Call For Reform., Richard Zitrin
St. Mary's Journal on Legal Malpractice & Ethics
Cases in which lawyers represent large numbers of individual plaintiffs are increasingly common. While these cases have some of the indicia of class actions, they are not class actions, usually because there are no common damages, but rather individual representations on a mass scale. Current ethics rules do not provide adequate guidance for even the most ethical lawyers. The absence of sufficiently flexible, practical ethical rules has become an open invitation for less-ethical attorneys to abuse, often severely, the mass-representation problem. It is necessary to reform the current rules, but only with a solution that is both practical and attainable, …
Keep Your “Friends” Close And Your Enemies Closer: Walking The Ethical Tightrope In The Use Of Social Media., John G. Browning
Keep Your “Friends” Close And Your Enemies Closer: Walking The Ethical Tightrope In The Use Of Social Media., John G. Browning
St. Mary's Journal on Legal Malpractice & Ethics
This Article will examine the ethical issues posed by lawyers’ use of social media platforms in light of the ABA Ethics Commission 20/20 changes to the Model Rules of Professional Conduct. Social networking has had a transformative effect both on the way society shares information and on the legal profession. Much of the discussion to date focuses on the discovery and use of evidence from social media sites in criminal cases and civil litigation, but attention must also be directed to the ethical quandaries posed by the legal profession’s use of social media. This Article will consider issues such as …
Evidentiary Standards In The Legal Malpractice Trial-Within-A-Trial., F. Parks Brown
Evidentiary Standards In The Legal Malpractice Trial-Within-A-Trial., F. Parks Brown
St. Mary's Journal on Legal Malpractice & Ethics
Like malpractice actions in general, the standards of proof required for each element of a legal malpractice claim evolved as legal malpractice claims became increasingly common. State and federal courts consequently produced a diverse range of opinions as jurisdictions continually adjust to evolving standards. The courts often seek to balance these standards of proof against their own precedent and the need to serve their particular notions of equity and justice. Perhaps the most contentious of these evolving standards of proof is the current state of the causation element, which is a critical test that must be satisfied to prevail in …
How An Obscure Tennessee Opinion Uncovers The Veil Of Legal Malpractice Between Asset-Protection Trusts And The Uniform Trust Code., Charles Epps Ipock
How An Obscure Tennessee Opinion Uncovers The Veil Of Legal Malpractice Between Asset-Protection Trusts And The Uniform Trust Code., Charles Epps Ipock
St. Mary's Journal on Legal Malpractice & Ethics
In the year 2000, the Uniform Law Commissioners approved the Uniform Trust Code (UTC). This was the first effort to provide states with an all-inclusive model for codifying their trust laws. Since then, at least twenty-three states adopted some, or most of the UTC. But this enactment did not come without controversy. Most of the controversies stem from provisions regarding asset-protection trusts. The net result of asset-protection trusts within the UTC essentially disposes of discretionary trusts by requiring them to contain spendthrift language. The undesirable effect of these provisions is that without a spendthrift clause any creditor can attach a …
Social Networking And Judicial Ethics., Craig Estlinbaum
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 …
Order In The Court!: Ethical Conduct In A Criminal Trial Under The Texas Disciplinary Rules., Edward L. Wilkinson
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 …
Ethically Handling The Receipt Of Possibly Privileged Information., James M. Fischer
Ethically Handling The Receipt Of Possibly Privileged Information., James M. Fischer
St. Mary's Journal on Legal Malpractice & Ethics
Inadvertently sent e-mails that contain privileged information, material negligently included in a discovery response, or employer's documents taken by a whistle-blower all share a common theme-the materials were not intended to be disclosed to the opposing party. This Article makes two contentions. First, all unintended disclosures should be treated under a single standard that asks whether the privilege holder exercised reasonable care in maintaining the confidentiality of the materials. Second, with respect to the receiving lawyer's professional obligations, a lawyer who receives materials that may be privileged should be allowed to read the materials: (1) to determine whether the materials …
Circular 230: New Rules Governing Practice Before The Irs., C. John Muller Iv
Circular 230: New Rules Governing Practice Before The Irs., C. John Muller Iv
St. Mary's Journal on Legal Malpractice & Ethics
This Article addresses the issue of tax preparer oversight. Currently, anyone may prepare a tax return for a fee. However, those preparers who are not lawyers, certified public accountants, or authorized to practice before the IRS are not required to meet a minimum standard of education, knowledge, training, or skill. After recent government studies revealed that these non-trained tax return preparers were making costly, egregious mistakes, the IRS proposed mandating oversight over any individual who prepares a tax return for compensation. This Article discusses, in depth, the Department of the Treasury's proposed regulations to broaden the authorities of IRS Circular …
Shifting The Burden Of Proof On Causation In Legal Malpractice Actions., Jeffrie D. Boysen
Shifting The Burden Of Proof On Causation In Legal Malpractice Actions., Jeffrie D. Boysen
St. Mary's Journal on Legal Malpractice & Ethics
Legal malpractice suits, like any negligence claim, require the plaintiff to meet all of the elements of the malpractice claim. Texas malpractice claims are based on professional negligence. In Texas, the elements a plaintiff must prove in a legal malpractice claim are: "(1) the attorney owed the plaintiff a duty; (2) the attorney breached that duty; (3) the breach proximately caused the plaintiffs injuries; and (4) damages occurred." Most jurisdictions, including Texas, place the burden on the plaintiff to meet all elements of the claim, including causation. However, a significant minority of jurisdictions allow the burden to shift to the …
Professional Responsibility For The Pro Se Attorney., Margaret Raymond
Professional Responsibility For The Pro Se Attorney., Margaret Raymond
St. Mary's Journal on Legal Malpractice & Ethics
This Article considers how pro se lawyers should be treated under the law of professional responsibility. While courts have addressed whether various aspects of the law of lawyering should be applied to lawyers acting pro se, they have not done so systematically. The Article first demonstrates that the law is not consistent in its treatment of pro se lawyers. It then argues that a purpose-based approach to the issue provides a consistent, rational, and reproducible way to analyze the question. It concludes that whether a particular rule of professional responsibility should apply to a pro se lawyer should be driven …
Legal Malpractice Litigation And The Duty To Report Misconduct., Vincent R. Johnson
Legal Malpractice Litigation And The Duty To Report Misconduct., Vincent R. Johnson
St. Mary's Journal on Legal Malpractice & Ethics
Lawyers participating in legal malpractice litigation sometimes encounter evidence of serious disciplinary rule violations. Whether, and how soon, those lawyers are required to report this information to grievance authorities is a question that has received little attention from courts and scholars, despite the fact that most states have mandatory reporting rules. The dilemma for lawyers serving as testifying experts is particularly troublesome because nonreporting may result not only in discipline, but testimonial impeachment. The better view is that an expert in a pending case ordinarily has no mandatory obligation to report misconduct. This conclusion is supported by an analysis of …
Practical Ethics For The Professional Prosecutor., Enrico B. Valdez
Practical Ethics For The Professional Prosecutor., Enrico B. Valdez
St. Mary's Journal on Legal Malpractice & Ethics
In Brady v. Maryland, the United States Supreme Court held that the prosecution's withholding of material exculpatory evidence violated the defendant's due process rights regardless of the absence of bad faith. The implications of this duty can be seen in the case of John Thompson, a man who was convicted of murder in Louisiana in 1985 after the prosecution failed to turn over exculpatory evidence. Thompson was able to get his conviction reversed and subsequently sued the district attorney's office. This Article analyzes Brady and the decisions that followed it to outline the obligations of prosecutors who are in possession …
An Article We Wrote To Ourselves In The Future: Early 21st Century Views On Ethics And The Internet., David Hricik, Prashant Patel, Natasha Chrispin
An Article We Wrote To Ourselves In The Future: Early 21st Century Views On Ethics And The Internet., David Hricik, Prashant Patel, Natasha Chrispin
St. Mary's Journal on Legal Malpractice & Ethics
Written from the viewpoint of the year 2050, this Article discusses the clash between legal ethics and the technological revolution of the early twenty-first century. As a result of ethics rules being applied to new technologies in ways never contemplated under traditional circumstances, lawyers had to be overly cautious when they used the Internet to correspond with or seek out clients, or otherwise promote their legal services. The lesson learned is that the legal community should reflect on the harm caused by over zealous regulation and take a more reasoned approach to the use of technology for the benefit of …
Probing The Legitimacy Of Mandatory Mediation: New Roles For Judges, Mediators, And Lawyers., Tracy Walters Mccormack, Susan Schultz, James Mccormack
Probing The Legitimacy Of Mandatory Mediation: New Roles For Judges, Mediators, And Lawyers., Tracy Walters Mccormack, Susan Schultz, James Mccormack
St. Mary's Journal on Legal Malpractice & Ethics
This Article probes the fundamental assumptions behind the use of mandatory or court-ordered mediation. The authors question the predominant use of standing rules or judicial practices referring cases to mediation. These referrals are inconsistent with the traditional roles of judges and courts, exclude the public from the justice system, and allow repeat players to develop a private justice system with little to no oversight. The Article questions why judges allow and encourage mandatory mediation and calls for all participants to take a more active role in the process. Based on surveys of judges, mediators, and lawyers, the Article exposes troublesome …