Law Commons^™

Taking On The Ethical Obligation Of Technology Competency In The Academy: An Empirical Analysis Of Practice-Based Technology Training Today, Jessica De Perio Wittman

Faculty Articles and Papers

Today's lawyers must be technologically competent, per Model Rule of Professional Conduct 1.1. Law schools and law firms were keenly aware of this expectation and summarily responded. While law firms offered more professional development opportunities, law schools began offering various courses focusing on technology skills. These courses have increased and evolved over time as the curriculum has changed with the technology. First, we present the evolution of ethical requirements surrounding legal technology competency and offer a description of the lawyering competency models most discussed today. We then review data about technology trends at the most innovative law firms and examine …

Rhode Was Right (About Character And Fitness), Leslie C. Levin

Faculty Articles and Papers

Almost 40 years ago, Deborah Rhode chronicled numerous problems with the legal profession’s character and fitness inquiry in her seminal article, Moral Character as a Professional Credential. This essay, which is dedicated to her memory, assesses the current state of that inquiry. The essay notes a few areas of improvement in some jurisdictions, but finds the character and fitness inquiry remains problematic. Some jurisdictions continue to operate without published standards and most character and fitness committees—and even the courts— do not publish information about their decisions. It is still the case, as Rhode noted, that there is little evidence that …

Ordinary Clients, Overreaching Lawyers, And The Failure To Implement Adequate Client Protection Measures, Leslie C. Levin

Faculty Articles and Papers

Every year, thousands of individual clients are victimized by overreaching lawyers who overcharge clients, refuse to return unearned fees, or steal their money. For more than forty years, the American Bar Association (ABA) has considered, and often proposed, client protection measures aimed at protecting clients from overreaching lawyers. These measures include requirements that lawyers use written fee agreements in their dealings with clients and rules relating to fee arbitration, client protection funds, insurance payee notification, and random audits of trust accounts. This Article examines what happened to these ABA recommendations when the states considered them and assesses the current state …

The Politics Of Bar Admission: Lessons From The Pandemic, Leslie C. Levin

Faculty Articles and Papers

No abstract provided.

The Role Of Lawyers And Law Schools In Fostering Civil Public Debate, Jennifer K. Robbennolt, Vikram D. Amar

Connecticut Law Review

Partisanship can make policy discussion and civil debate difficult. Partisan differences in how facts and policies are understood contribute to the escalation of conflict and a lack of cooperation. Lawyers are not immune from these human tendencies. But good lawyers have, and good law schools teach, values, knowledge, and skills that can aid in fostering and modeling more productive debate and resolution of conflict.

Lawyers are trained and socialized to internalize and safeguard the foundational tenets of our constitutional democracy, to uphold the law even when it does not reflect their own individual preferences. The professional rules of conduct encourage …

The Politics Of Lawyer Regulation: The Case Of Malpractice Insurance, Leslie C. Levin

Faculty Articles and Papers

This Article examines the politics of lawyer regulation and considers why some states will adopt lawyer regulation that protects the public, when others will not. It uses the debates over how to regulate uninsured lawyers as a lens through which to examine the question. Clients often cannot recover damages from uninsured lawyers who commit malpractice, even when those lawyers cause serious harm. Yet only two states require that lawyers carry malpractice insurance. This Article uses case studies to examine the ways in which six states recently have addressed the issue of uninsured lawyers to understand this regulatory failure. It uses …

The End Of Mandatory State Bars?, Leslie C. Levin

Faculty Articles and Papers

The country’s thirty-one mandatory state bar associations are facing an existential threat following the U.S. Supreme Court’s decision in Janus v. ACSME, 138 S. Ct. 2448 (2018). In Janus, the Court considered the constitutionality of compelling public employees to pay agency fees to a labor union. In the process, the Court effectively upended the reasoning of earlier Supreme Court precedent that enabled mandatory state bars to compel bar dues payments from objecting lawyers and expend dues to fund traditional bar functions. Mandatory state bars—which function both as regulators and as traditional bar associations—are now defending themselves against claims in several …

When Lawyers Screw Up, Leslie Levin

Faculty Articles and Papers

In their book When Lawyers Screw Up: Improving Access to Justice for Legal Malpractice Victims, Herbert Kritzer and Neil Vidmar significantly advance our understanding of these issues. They provide a detailed portrait of lawyer malpractice in the United States and demonstrate why it is so hard for victims to recover damages. Theirs is not an easy undertaking. Legal malpractice often goes undetected. Even when a client learns of lawyer malpractice, the problem is sometimes resolved informally without notifying the LPL insurer of a possible claim.

The authors focus mainly on what can be learned about legal malpractice from malpractice …

Beyond The Guild: Lawyer Organizations And Law Making, Leslie Levin

Faculty Articles and Papers

Lawyers throughout the world seek to influence law, not only through their individual actions, but also through lawyer organizations. As interest groups, these organizations often work to affect not only law, but also the justice system and the workings of government. It is no secret that these organizations sometimes try to block legal change or create new legal rules to promote lawyers' own interests.' Lawyer organizations also work to influence law in ways that will benefit their clients. Yet sometimes lawyers' collective actions reflect broader political concerns rather than their clients' or their own self-interest, such as when thousands of …

The Monopoly Myth And Other Tales About The Superiority Of Lawyers, Leslie Levin

Faculty Articles and Papers

The legal profession’s control of much of the market for legal services is justified by the claim that only licensed lawyers can effectively and ethically represent clients. This article challenges that claim. A review of a number of studies suggests that experienced nonlawyers can provide competent legal services in certain contexts and in some cases, can seemingly do so as effectively as lawyers. There is also little evidence that lawyers’ legal training, the bar admission requirements, or lawyers’ psychological characteristics make them more trustworthy than nonlawyer legal services providers. The article considers some recent initiatives, such as Washington’s approval of …

Lawyers Going Bare And Clients Going Blind, Leslie Levin

Faculty Articles and Papers

Many U.S. lawyers "go bare" and represent clients without maintaining malpractice insurance. Efforts to require these lawyers to carry lawyer professional liability (LPL) insurance have mostly foundered, due to bar opposition and concerns about the cost of insurance. As a compromise between protecting the public and protecting lawyers' interests, many states now require lawyers to disclose whether they carry LPL insurance to clients, regulators, or both. This Article draws on survey data from Arizona, Connecticut and New Mexico lawyers that shed light on which lawyers go bare and the reasons why they do so. The Article then looks at states' …

Regulators At The Margins: The Impact Of Malpractice Insurers On Solo And Small Firm Lawyers, Leslie Levin

Faculty Articles and Papers

Liability insurers often informally regulate the behavior of their insureds through the underwriting process, premium pricing, contract design, and risk management practices. This Article explores whether lawyer professional liability ("LPL") insurers effectively regulate the behavior of solo and small firm lawyers in ways that encourage responsible conduct. The Article draws on interviews of insurance industry executives, risk management counsel, and insured lawyers, as well as insurer documents and surveys of lawyers, to explore the impact of LPL insurers on the work lives of solo and small firm lawyers. The research reveals that LPL insurers appear to regulate the behavior of …

The Questionable Character Of The Bar's Character And Fitness Inquiry, Leslie Levin, Peter Siegelman

Faculty Articles and Papers

Lawyers who engage in misconduct can do substantial harm. To screen out "unfit" lawyers, bar examining authorities collect detailed personal information from bar applicants. The rationale for this "character and fimess" inquiry is to identify who is likely to become a problematic lawyer. Despite the history of discrimination associated with this inquiry and the highly personal information requested, there has been no rigorous test of whether such predictions are possible. This article examines the information disclosed by 1,343 Connecticut bar applicants and their subsequent disciplinary records. It reveals that while some bar application data are associated with an elevated risk …

Rethinking The Character And Fitness Inquiry, Leslie Levin

Faculty Articles and Papers

The bar’s character and fitness inquiry seeks to protect the public. As part of this inquiry, bar applicants are required to produce detailed information about their past histories. The rationale for this inquiry is that this information can be used to identify who will subsequently become a problematic lawyer. Bar applicants bear the burden of providing their “good” character even though there is little evidence that past conduct predicts who will become a problematic lawyer. This article looks at psychological and other research that attempt to identify factors that might predict future misconduct in the work place. It also reports …

The Folly Of Expecting Evil: Reconsidering The Bar's Character And Fitness Requirements, Leslie Levin

Faculty Articles and Papers

The bar's character and fitness requirement is based on the largely untested premise that an applicant's past history helps predict whether that individual possesses the moral character needed to be a trustworthy lawyer. The primary purpose of the character inquiry is to protect the public and the judicial system from potentially problematic lawyers.The inquiry may also signal to the public that lawyers possess "good character" and deserve to be trusted with their important legal matters, thereby facilitating client representation and the administration of justice. An alternative-and more critical characterization of this purpose is that it is designed to protect the …

Confidentiality And Common Sense: Insights From Philosophy, Thomas Morawetz

Faculty Articles and Papers

No abstract provided.

Two Views Of Class Action, Alexandra Lahav

Faculty Articles and Papers

No abstract provided.

Specialty Bars As A Site Of Professionalism: The Immigration Bar Example, Leslie Levin

Faculty Articles and Papers

As the practice of law has become increasingly specialized, specialty bar associations have become more important to the work lives of many lawyers and their understanding of professional norms. This article looks at the role of a single specialty bar association - the American Immigration Lawyers Association (AILA) - in the construction of its members’ norms and values. The article draws on semi-structured interviews with 71 immigration lawyers in the New York City metropolitan area to identify the ways in which specialty bars foster lawyers’ understanding of professional norms - both formally and informally - through education, information sharing, mentoring, …

Using Mindfulness Practice To Work With Emotions, Deborah Calloway

Faculty Articles and Papers

No abstract provided.

Portraits Of Resistance: Lawyer Responses To Unjust Proceedings, Alexandra Lahav

Faculty Articles and Papers

This Article considers a question rarely addressed: what is the role of the lawyer in a manifestly unjust procedural regime? Many excellent studies have considered the role of the judge in unjust regimes, but the lawyer’s role has been largely ignored. This Article draws on two case studies: that of lawyers representing civil rights leaders during protests in Birmingham, Alabama in 1963 and that of lawyers representing detainees facing military commission proceedings in Guantánamo Bay, Cuba. These portraits illuminate the role of the lawyer in a procedurally unjust tribunal operating within a larger liberal legal regime such as our own. …

Review, Bad Apples, Bad Lawyers Or Bad Decisionmaking: Lessons From Psychology And From Lawyers In The Dock, Leslie Levin

Faculty Articles and Papers

Review of Lawyers in the Dock: Learning from Attorney Disciplinary Proceedings, by Richard Abel

Guardians At The Gate: The Backgrounds, Career Paths, And Professional Development Of Private Us Immigration Lawyers, Leslie Levin

Faculty Articles and Papers

No abstract provided.

Pro Bono Publico In A Parellel Universe: The Meaning Of Pro Bono In Solo And Small Law Firms, Leslie Levin

Faculty Articles and Papers

The organized bar is increasingly providing pro bono legal assistance to the more than fifty million people of limited means in the United States.' In 2008, the 200 highest grossing law firms in the United States contributed a record 5.57 million hours of pro bono service to individuals and organizations that could not afford to hire lawyers. These large firms now have well-organized pro bono programs that enjoy considerable administrative support. But the lawyers in large firms (over 100 lawyers) comprise only about 16% of the lawyers in private practice. Solo and small firm (two to five) lawyers, who comprise …

Case For Less Secrecy In Lawyer Discipline, The, Leslie Levin

Faculty Articles and Papers

This article looks at the problems created by a lawyer discipline process that continues to be conducted mostly in secret. The vast majority of the 125,000 discipline complaints received annually are disposed of without an opportunity for the public to observe the process or the outcome of complaints. Heavy reliance on confidential dispositions - either through private sanctions or diversion programs - keeps most information about lawyer misconduct a secret from the public. As a result, clients are often injured by lawyers who have previously engaged in misconduct, little is known about the extent of recidivism among disciplined lawyers, and …

Building A Better Lawyer Discipline System: The Queensland Experience, Leslie Levin

Faculty Articles and Papers

In many jurisdictions, lawyer-run discipline systems are inefficient, overly lenient and insufficiently responsive to consumer's concerns. Queensland's Legal Profession Act 2004 (Qld) breaks away from that model by moving lawyer discipline out of lawyers' professional associations and into an independent agency. It articulates a decidedly consumer-oriented approach to lawyer discipline and gives Queensland's new Legal Services Commissioner the power to investigate and prosecute all discipline complaints. This article looks at Queensland's recent reforms, and considers how well the new system is meeting its twin goals of consumer protection and traditional lawyer discipline. Using interviews and other data, the article identifies …

Lawyers In Cyberspace: The Impact Of Legal Listservs On The Professional Development And Ethical Decisionmaking Of Lawyers, Leslie Levin

Faculty Articles and Papers

This article explores the impact of trial lawyers= associations on the professional identities of its members, their professional development, their understanding of practice norms, and their ethical decision making. It does so by looking at the New York State Trial Lawyers= Association (ANYSTLA@), and more specifically, the conversations that occur on its listserv. When these conversations are viewed in the context of the history and current operations of NYSTLA, it is possible to see how such listservs powerfully promote shared professional values and views within NYSTLA=s membership. The listserv extends the advice networks of trial lawyers far beyond the small …

Ethical World Of Solo And Small Law Firm Practitioners, The, Leslie Levin

Faculty Articles and Papers

No abstract provided.

Character Of The Questions And The Fitness Of The Process: Mental Health, Bar Admissions And The Americans With Disbilities Act, Jon Bauer

Faculty Articles and Papers

During the decade since the Americans With Disabilities Act went into effect, mental health inquiries by bar examining committees have engendered intense controversy. Courts have reached no clear consensus as to what, if any, questions about mental illness or substance abuse may be posed by licensing agencies. The trend has been towards a form of relaxed scrutiny that authorizes inquiries as long as they are focused on serious conditions that may interfere with practice, and are reasonably tailored in scope and time. This article examines the implications of allowing disability inquiries in the lawyer licensing process. The Article begins with …

Preliminary Reflections On The Professional Development Of Solo And Small Law Firm Practitioners, Leslie Levin

Faculty Articles and Papers

Solo and small law firm practitioners have long been regarded as marginal, unmentored, unethical and inadequately trained members of the legal profession. Yet technological advances and demographic changes in this segment of the bar suggest reasons for re-examining this view. In an effort to gain a clearer understanding of the current state of the professional development of these lawyers, 41 solo and small firm practitioners in the New York City metropolitan area were interviewed about their work lives and professional development. The questions posed were designed to explore how, if at all, office settings, mentors and other colleagues contribute to …

On The Unique Value Of Law School Clinics, Paul Chill

Faculty Articles and Papers

This is an edited version of a speech given by the author on April 21, 1999, upon receiving the 1999 University of Connecticut Law Review Award for “excellence in legal scholarship and service to the legal community.”