Law Commons^™

Technology And Client Communications: Preparing Law Students And New Lawyers To Make Choices That Comply With The Ethical Duties Of Confidentiality, Competence, And Communication, Kristin J. Hazelwood

Law Faculty Scholarly Articles

That the use of technology has radically changed the legal profession is beyond dispute. Through technology, lawyers can now represent clients in faraway states and countries, and they can represent even local clients through a “virtual law office.” Gone are the times in which the lawyer’s choices for communicating with clients primarily involve preparing formal business letters to convey advice, holding in-person client meetings in the office, or conducting telephone calls with clients on landlines from the confines of the lawyer’s office. Not only do lawyers have choices about how to communicate with their clients, but they also frequently choose …

Something Bad In Your Briefs, Richard H. Underwood

Law Faculty Scholarly Articles

In a profession heavily driven by writing, plagiarism is an ethical issue that plagues the legal community. The legal profession generally views plagiarism as unethical, but often sends mixed messages by condemning it in some settings, but not others. In this short Commentary, Professor Underwood discusses the ethical implications of plagiarism in legal writing.

E-Mails To Clients: Avoiding Missteps, Kristin J. Hazelwood

Law Faculty Popular Media

In this column for Kentucky Bar Association's magazine (B&B - Bench & Bar), Professor Hazelwood addresses the ethical implications of emailing with a client. Practitioners are provided a series of questions to ask before emailing a client.

Making Stuff Up, Richard H. Underwood

Law Faculty Scholarly Articles

Beginning with an article in this Journal almost thirty years ago, Professor Underwood continues to research and write about legal ethics and litigation. In this Commentary, he offers a witty look at several cases where, in his opinion, the judge allowed improper arguments to the jury.

Lessons In Legal Ethics From Reading About The Life Of Lincoln, Eugene R. Gaetke

Law Faculty Scholarly Articles

Abraham Lincoln is an icon of American history. He is prominently named in various opinion polls as among the best Presidents in the history of the United States. His stature as a great President is perhaps best reflected currently in the stream of events constituting a national two-year celebration of his 1809 birth. Even before that, however, scholarly and popular interest and Lincoln’s life and Presidency continued unabated, as indicated by the steady publication and success of books about him. Notable among these works is David Herbert Donald’s best-selling biography of our sixteenth President titled Lincoln.

Although Mr. Donald’s …

Expecting Too Much And Too Little Of Lawyers, Eugene R. Gaetke

Law Faculty Scholarly Articles

The regulation of lawyers' behavior remains a controversial topic. Over the past hundred years, the organized bar has engaged in a number of efforts to generate rules governing lawyers' conduct. Still, prominent lawyers and jurists, the public media, and legal scholars perceive an ongoing decline in the profession's ethics.

Bar leaders tend to respond to the problem by calling for greater "professionalism" among practicing lawyers. Drawing on professional images from earlier times, they urge lawyers to look beyond the rules and to be more virtuous, selfless, independent of clients, and dedicated to justice.

A number of commentators go further. These …

The Ethical Obligation Of Transactional Lawyer To Act As Gatekeepers, Rutheford B. Campbell Jr., Eugene R. Gaetke

Law Faculty Scholarly Articles

Recent examples of managerial misconduct at major corporations have called into question the adequacy of the gatekeeper role provided by transactional lawyers representing corporations. That role is governed by Model Rule 1.13(b), which obligates the lawyer for a corporation to take remedial action if the lawyer knows that corporate managers are engaged in actions that amount to a "violation of a legal obligation" to the corporation or that are unlawful and likely to result in substantial injury to the corporation. In addition, Model Rule 1.2(d) forbids a lawyer from lending assistance to any action by corporate managers "that the lawyer …

What Gets Judges In Trouble, Richard H. Underwood

Law Faculty Scholarly Articles

I wrote this article to collect some cautionary material about “what gets judges in trouble.” I wanted something I could offer to our state judges, practitioners, and my legal ethics students. While I have never been a judge, and while I have never worked for a judicial conduct organization, I have been a law professor for almost twenty-five years and the chairman of a state bar association ethics committee for fourteen. I am not the kind of person who would refrain from holding forth just because I may not know what I am talking about.

When I started out, I …

What I Think That I Have Learned About Legal Ethics, Richard H. Underwood

Law Faculty Scholarly Articles

In this short piece I want to say a few things that other academics teaching legal ethics may find disturbing. I say this because I believe that I may be swimming against the current academic fashion. Of course, it is possible that I do not have a very good handle on the current academic fashion. I hope I am not setting up a straw person to knock down, but I may be. If I am, I am sure someone will call me to task. What I am going to say is this: contrary to popular belief (among practitioners, at least) …

Administrative Adjudication In Kentucky: Ethics And Unauthorized Practice Considerations, Richard H. Underwood

Law Faculty Scholarly Articles

This article is an extended version of a presentation I made at a training course for hearing officers sponsored by the Office of the Attorney General, Division of Administrative Hearings. In my original presentation, I was asked to focus on the ethics of the administrative adjudicator. I was asked to answer some specific questions, which I will include here for the reader's benefit. In this more complete treatment, I would also like to discuss the ethics of lawyers and other representatives appearing before administrative agencies.

The Kentucky Courts had begun to "judicialize" the administrative hearing process in the early 1970's, …

3rd Annual Computer & Technology Law Institute, Office Of Continuing Legal Education At The University Of Kentucky College Of Law

Continuing Legal Education Materials

Materials from the 3rd Annual Computer & Technology Law Institute held by UK/CLE in March 2001.

A Proposal To Require Lawyers To Disclose Information About Procedural Matters, William H. Fortune

Law Faculty Scholarly Articles

In the absence of a rule clearly requiring disclosure, a lawyer is obligated not to disclose information which is adverse to the interests of a client. However, judges should be able to expect lawyers to dislose information about procedural matters. This Article argues that Model Rule of Professional Conduct 3.3 should be amended to require disclosure of information about procedural matters. Part I describes the events in Potter v. Eli Lilly & Co., a case involving a secret settlement related to Prozac. Part II makes the argument for a rule requiring disclosure of procedural information. Part III describes how …

The Professional And The Liar, Richard H. Underwood

Law Faculty Scholarly Articles

Many individuals in society think that all lawyers are liars. Some think lawyers are allowed to lie. Regrettably, some American lawyers apparently think so too. In the United States there has been, and continues to be, a troubling lack of professional consensus when it comes to litigating a case. Indeed, lawyers who are neither corrupt nor insensitive have been accused of arguing that the elicitation of false testimony, and the use of it, is a professional responsibility. Fairness also calls for some acknowledgment that even the most cunning, zealous, and successful of trial lawyers have agonized over such moral choices. …

Renewed Introspection And The Legal Profession, Eugene R. Gaetke

Law Faculty Scholarly Articles

As the twentieth century draws to a close, the legal profession again immersed in a process of self-assessment, reflection, and reform. Operating on several fronts, various constituent elements of the bar have recently completed or have underway significant projects relating to the law of lawyering.

Two efforts stand out in particular. For more than a decade, the American Law Institute has labored in the production of a new Restatement of the Law Governing Lawyers, and the organization stands now on the brink of that monumental work's publication. Equally significant, the American Bar Association has again undertaken a comprehensive review of …

A Proposal To Require Lawyers To Disclose Information About Procedural Matters, William H. Fortune

Law Faculty Scholarly Articles

In the absence of a rule clearly requiring disclosure, a lawyer is obligated not to disclose information which is adverse to the interests of a client. However, judges should be able to expect lawyers to disclose information about procedural matters. This Article argues that Model Rule of Professional Conduct 3.3 should be amended to require disclosure of information about procedural matters. Part I describes the events in Potter v. Eli Lilly & Co., a case involving a secret settlement related to Prozac. Part II makes the argument for a rule requiring disclosure of procedural information. Part III describes how …

Kentucky Law Survey: Professional Responsibility, William H. Fortune

Law Faculty Scholarly Articles

This article is a survey of recent Kentucky ethics cases and Kentucky Bar Association ethics opinions. The cases and opinions selected are those of general application but special interest.

The Role Of Ethics And Unauthorized Practice Opinions In Regulating The Practice Of Law In Kentucky, William H. Fortune

Law Faculty Scholarly Articles

The purpose of this article is to discuss the role of ethics and unauthorized practice opinions in regulating the practice of law, with suggestions for clarification and improvement.

The Kentucky Bench and Bar, the quarterly journal of the Kentucky Bar Association ("KBA"), prints "Advisory Ethics Opinions" and "Unauthorized Practice Opinions" over the signatures of the respective chairs of the Ethics and Unauthorized Practice of Law ("UPL") Committees. This article describes: 1) how ethics and unauthorized practice opinions are generated; 2) the legal effect of the opinions; 3) the relationship of ethics opinions to attorney discipline; 4) the Board of Bar …

Government Lawyers And Their Private “Clients” Under The Fair Housing Act, Eugene R. Gaetke, Robert G. Schwemm

Law Faculty Scholarly Articles

In strengthening enforcement of the federal Fair Housing Act, Congress in the 1988 Fair Housing Amendments Act ("FHAA") authorized government lawyers from the Justice Department, the Department of Housing and Urban Development, and state and local civil rights agencies to prosecute cases "on behalf of” persons aggrieved by housing discrimination. This new enforcement scheme has led to a heightened level of administrative complaints and litigated cases in which government lawyers are put in the potentially difficult position of having to represent both their agency and private complainants.

The "triangular" relationships created by the FHAA between government lawyers and their public …

Genetics, Genetic Testing, And The Specter Of Discrimination: A Discussion Using Hypothetical Cases, Richard H. Underwood, Ronald C. Cadle

Law Faculty Scholarly Articles

A "genetic revolution" is upon us. Techniques for genetic testing have increased in sophistication, and an international effort to map and sequence human DNA—The Human Genome Project ("HGP")—is now well under way. We are beginning to exploit our new found genetic knowledge. Recognition of the relationship between developments in genetic science, law, and public policy, is creeping into the "literature" and into the law school curriculum. Even the popular 60 Minutes television "news magazine" recently did a program on the perils of genetic testing. Still, for lawyers and policymakers at least, the material is not all that accessible.

The following …

"Show And Tell": An Analysis Of The Scope Of The Attorney-Client Waiver Standards, Roberta M. Harding

Law Faculty Scholarly Articles

As today's society becomes increasingly litigious, document productions, a major discovery tool, are growing larger. One inevitable consequence of this phenomenon is the increased risk that communications protected by the attorney-client privilege may be inadvertently disclosed. Privileged communications may also be disclosed to an adversary under more questionable circumstances: specifically, the intentional, strategic disclosure of privileged information favorable to the disclosing party's position.

In any case involving the disclosure of privileged information, the court must initially decide whether the privilege is waived. To resolve this threshold issue courts apply one of the three waiver tests. If a court decides that …

Risk Management For Lawyers, William H. Fortune, Dulaney O’Roark

Law Faculty Scholarly Articles

Lawyers are under siege. We have become objects of scorn, ridicule, and occasional hatred. If you take your child to the Stephen Spielberg movie Jurassic Park, be prepared for the cheers when the cloned Tyrannosaurus Rex gobbles the lawyer—not a bad guy at all—cowering in the outhouse. In San Francisco a client burst into a California law firm and killed eight and wounded six persons before taking his own life. In response, the president of the California bar linked lawyer-bashing to hate crimes and prevailed on the Miller Brewing Company to withdraw a television commercial depicting a "lawyer-roping rodeo" …

Money Laundering And Lawyers, Eugene R. Gaetke, Sarah N. Welling

Law Faculty Scholarly Articles

The federal government has recently enacted money laundering laws to track and discourage the use of money generated by crime. Because some of that money is used to pay legal fees, the laws have a direct impact on lawyers. The laws increase the risk of prosecution for lawyers, inhibit some methods of fee payment, and make some cases less attractive financially. Generally, the laws make law practice more complicated and risky.

The laws have been criticized for their impact on criminal defense lawyers. Critics have raised three broad objections. The first objection is constitutional. Critics have also objected to the …

Part-Time Prosecutors And Conflicts Of Interest: A Survey And Some Proposals, Richard H. Underwood

Law Faculty Scholarly Articles

For many jurisdictions, the need for part-time prosecutors is a reality that will continue into the foreseeable future. The daunting task of balancing a private practice with prosecutorial duties is made all the more difficult by the lack of a coherent set of guidelines for minimizing the impact of conflicts of interest. What is needed is a set of guidelines flexible enough to permit attorneys to balance the part-time prosecutor's dual practice yet concrete enough to protect the system and its participants from conflicts of interest. Of prime importance in establishing any such system is the need for a clear …

Confessions Of An Ethics Chairman, Richard H. Underwood

Law Faculty Scholarly Articles

This article responds to the critics of state bar ethics committees. Indirectly, it raises some questions about the need, or at least the extent of the need, for yet another law-related cottage industry (the for hire legal ethics consultant). It also provides some friendly advice for those well-meaning types in every jurisdiction who are perennially "reforming" or "energizing" their bar associations and demanding for the "membership" a dazzling new array of services. It discusses practical problems that have gone unmentioned in the limited literature, just as it takes issue with many of the assertions that have been made in that …

Kentucky's New Rules Of Professional Conduct For Lawyers, Eugene R. Gaetke

Law Faculty Scholarly Articles

On July 12, 1989, the Kentucky Supreme Court adopted its own version of the American Bar Association's 1983 Model Rules of Professional Conduct as the body of disciplinary law applicable to lawyers practicing in the state. These new rules constitute a major improvement in the state's law of legal ethics. Their adoption should be considered a victory for Kentucky lawyers and, more importantly, a victory for the people of the state, the ultimate beneficiaries of the regulation of the legal profession.

As with most victories, the adoption of the new rules was not unequivocally positive. Kentucky's version of the Model …

Lawyers As Officers Of The Court, Eugene R. Gaetke

Law Faculty Scholarly Articles

Lawyers like to refer to themselves as officers of the court. Careful analysis of the role of the lawyer within the adversarial legal system reveals the characterization to be vacuous and unduly self-laudatory. It confuses lawyers and misleads the public. The profession, therefore, should either stop using the officer of the court characterization or give meaning to it. This Article proposes certain modifications of the existing rules of professional responsibility that would bring lawyers' actual obligations more in line with those suggested by the label of officer of the court.

Comments On Professor Rotunda's Essay, Richard H. Underwood

Law Faculty Scholarly Articles

In this comment, Professor Richard H. Underwood provides a response to An Essay on the Constitutional Parameters of Federal Impeachment, by Professor Ronald D. Rotunda. Rotunda’s essay was published in the Kentucky Law Journal, Vol. 76, No. 3, pp. 707-732.

Why Kentucky Should Adopt The Aba's Model Rules Of Professional Conduct, Eugene R. Gaetke

Law Faculty Scholarly Articles

In 1983, after six years of drafting and lively debate, the American Bar Association adopted the Model Rules of Professional Conduct as its most recent statement of the ethical norms of the legal profession. Shortly thereafter the ABA forwarded the rules to the states for consideration and possible adoption as binding ethical principles. As of this writing, a number of states have adopted the Model Rules, in full or in substantial form, and several more have proposals for such adoption pending before their supreme courts

The Kentucky Supreme Court presently awaits the state bar association's recommendation regarding the Model Rules' …

Taking And Pursuing A Case: Some Observations Regarding "Legal Ethics" And Attorney Accountability, Richard H. Underwood

Law Faculty Scholarly Articles

This Article addresses some of the potential liabilities that may arise from an attorney's decision to decline, refer, undertake, continue or discontinue the prosecution of a civil action. This Article suggests that counsel's obligations to his or her client, adversary, and fellow members of the bar, as well as to the judiciary and the justice system, can be balanced without subjecting attorneys to liability. This balance can be attained, however, only if potential problems are spotted and minimal precautions are taken.

Legal Ethics And Class Actions: Problems, Tactics And Judicial Responses, Richard H. Underwood

Law Faculty Scholarly Articles

Perhaps no procedural innovation has generated more controversy than the class action. As Professor Arthur Miller has observed, debate over “class action problem[s]” has raged at several different levels. For example, opponents and proponents of class actions disagree on whether such actions produce socially desirable results in an economical fashion and whether an already overburdened judiciary can handle the additional supervisory demands of the class action. Recently, a somewhat more ideological dialogue has addressed the merit of publicly funded class actions. Such questions arise only indirectly in the context of class action litigation. However, a certain hostility toward class actions …