Law Commons^™

Rudolph Giuliani And The Ethics Of Bullshit, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Lawyers are communicators. They communicate with clients, courts, adversaries, juries, witnesses, and the public. Lawyers have a special responsibility for the quality of justice. Their communications, therefore, are hedged by various ethical rules to ensure that their statements are knowledgeable, truthful, respectful, and not prejudicial to the administration of justice. But lawyers are not always knowledgeable of the facts. In fact, they sometimes behave disrespectfully, and stray from the truth. False statements by lawyers may be made unwittingly, sometimes intentionally, and sometimes with an indifference, even a contempt for the truth. Discourse of the latter kind may be characterized as …

A Penal Colony For Bad Lawyers, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

In this article I set out what I believe is an extreme and unconventional way to discipline egregiously bad lawyers. For starters, I think it might be useful to survey briefly the kinds of lawyering conduct currently subject to disciplinary sanctions. Regulation of the conduct of defense lawyers in the U.S. is hedged by various legal and professional rules that are enforced by courts and disciplinary bodies essentially to ensure a minimum level of competent and ethical representation. The Sixth Amendment right to counsel--the so-called “sacred” right--seeks to ensure at least a reasonable degree of lawyering skill. Also, professional codes …

The Prosecutor’S Duty Of Silence, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Prosecutors enjoy broad opportunities to communicate with the public outside the courtroom. Justice Holmes’s famous dictum -- “The theory of our system is that conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print” – is just that – a “theory.” The reality is otherwise. Prosecutors, and defense lawyers too, engage in extrajudicial speech frequently, and often irresponsibly. But in contrast to other lawyers, prosecutors have a higher “special” duty to serve justice rather than a private client. And …

Shifting Paradigms Of Lawyer Honesty, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

The Model Rules currently contain at least four distinct conceptions of what it means for a lawyer to be honest. Moreover, the levels of honesty that the ethical rules demand have changed markedly in recent times. This article explores why, for the lawyers of today, being “honest” seems to be so complicated.

The exploration begins by reviewing recent changes in the honesty concepts embodied in the Model Rules, particularly the new duty to reveal confidential information that lawyers have under Rule 4.1. Attention then turns to what it means to be “honest” in the context of our modern exaggerated version …

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 …