Law Commons^™

Ethical Lawyering: The Role Of Honor, Conscience, And Codes (Reviewing Michael S. Ariens, The Lawyer’S Conscience: A History Of American Lawyer Ethics), Vincent R. Johnson

Faculty Articles

Michael Ariens’ new book, The Lawyer’s Conscience: A History of American Lawyer Ethics, is a monumental work, rooted in his decades of excellent scholarship in the fields of attorney professional responsibility and legal history. The Lawyer’s Conscience captures the great sweep and key features of the roughly 250-year period in American legal ethics running from colonial times to the present day. Richly detailed and vividly presented, the story takes the reader on a grand tour of the landmark events and changing ideas that have defined the aspirations, responsibilities, and accountability of members of the American legal profession.

The Fall Of An American Lawyer, Michael Ariens

Faculty Articles

John Randall is the only former president of the American Bar Association to be disbarred. He wrote a will for a client, Lovell Myers, with whom Randall had been in business for over a quarter-century. The will left all of Myers’s property to Randall, and implicitly disinherited his only child, Marie Jensen. When Jensen learned of the existence of a will, she sued to set it aside. She later filed a complaint with the Iowa Committee on Professional Ethics and Conduct. That complaint was the catalyst leading to Randall’s disbarment.

Randall had acted grievously in serving as Lovell Myers’s attorney. …

The Appearance Of Appearances, Michael Ariens

Faculty Articles

The Framers argued judicial independence was necessary to the success of the American democratic experiment. Independence required judges possess and act with integrity. One aspect of judicial integrity was impartiality. Impartial judging was believed crucial to public confidence that the decisions issued by American courts followed the rule of law. Public confidence in judicial decision making promoted faith and belief in an independent judiciary. The greater the belief in the independent judiciary, the greater the chance of continued success of the republic.

During the nineteenth century, state constitutions, courts, and legislatures slowly expanded the instances in which a judge was …

Anti-Discrimination Ethics Rules And The Legal Profession, Michael Ariens

Faculty Articles

“Reputation ought to be the perpetual subject of my Thoughts, and Aim of my Behaviour. How shall I gain a Reputation! How shall I Spread an Opinion of myself as a Lawyer of distinguished Genius, Learning, and Virtue.” So wrote twenty-four-year-old John Adams in his diary in 1759. He had been a licensed lawyer for just three years at that time and had already believed himself to be hounded by “Petty foggers” and “dirty Dablers in the Law”—unlicensed attorneys who, Adams claimed, fomented vexatious litigation for the fees they might earn.

Adams believed his embrace of virtue, along with genius …

Model Rule 8.4(G) And The Profession's Core Values Problem, Michael Ariens

Faculty Articles

Model Rule 8.4(g) declares it misconduct for a lawyer to "engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law." The American Bar Association (ABA) adopted the rule in 2016, in large part to effectuate the third of its four mission goals: Eliminate Bias and Enhance Diversity. The ABA adopted these goals in 2008, and they continue to serve as ABA's statement of its mission.

A …

Lawyers, Mistakes, And Moral Growth (Reviewing Mike H. Bassett, The Man In The Ditch: A Redemption Story For Today), Vincent R. Johnson

Faculty Articles

In the literature of legal ethics, relatively little is said about the psychic turmoil that lawyers face while anticipating or defending a grievance, malpractice claim, or criminal charge. Even less is said about how lawyers who are found guilty of violating professional standards should go about rebuilding their reputations and personal lives after such proceedings have run their course, often with embarrassing results having been made public. Against this bleak backdrop, a dazzlingly introspective and hopeful book about lawyers and their mistakes-and about their suffering and possible moral growth-has been published.

John The Theologian: Towards Integrating Law And Religion, Gordon T. Butler

Faculty Articles

No abstract provided.

Case Watch: Royston, Rayzor, Vickery & Williams Llp V. Lopez, Ramona L. Lampley

Faculty Articles

The Texas Supreme Court effectively gave a “thumbs-up” to attorney-client arbitration agreements in Royston, Rayzor, Vickery, & Williams, LLP v. Lopez, 467 S.W.3d 494 (Tex. 2015), reh’g denied (Sept. 11, 2015). The plaintiff, Frank Lopez, hired Royston, Rayzor to represent him in a divorce. As part of the representation agreement, Lopez agreed to arbitrate any disputes arising out of the attorney-client relationship, but the law firm excluded from the arbitration agreement any claims it might have against Lopez for expenses or fees. Lopez later sued Royston, Rayzor and the firm moved to compel arbitration.

Lopez contended that the arbitration agreement …

Long Live Bohatch: Why A Law Firm Partner Can Be Expelled For Following The Rules Of Professional Conduct, David A. Grenardo

Faculty Articles

No abstract provided.

Legal Malpractice In A Changing Profession: The Role Of Contract Principles, Vincent R. Johnson

Faculty Articles

American legal ethics are based upon a set of legal principles that ensure clients are protected from unnecessary harm and that the provision of legal services is consistent with the public interest. However, the fabric of American legal ethics is threatened by a looming transformation of the legal profession. Such changes, if they come to pass, will undercut the foundations upon which the principles and law of modern legal ethics is founded.

The current model of American legal ethics is animated by three important assumptions, each of which is now under attack. The first is that legal services are ordinarily …

Malpractice Liability Related To Foreign Outsourcing Of Legal Services, Vincent R. Johnson, Stephen C. Loomis

Faculty Articles

The outsourcing of client-related tasks to service providers in other countries is likely to generate malpractice claims against American law firms. This Article discusses the wide range of theories under which an outsourcing American law firm may be liable for its own negligence or for the actions of outsourcing providers. These theories include negligence by the outsourcing law firm, vicarious liability for the conduct of firm principals and employees, vicarious liability for the conduct of independent contractors, and vicarious liability for the conduct of business partners.

Legal Malpractice Litigation And The Duty To Report Misconduct, Vincent R. Johnson

Faculty Articles

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 …

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

Faculty Articles

In this paper, we review the traditional arguments for corporate social responsibility and ask the question of what corporate lawyers should do to help their clients do the right thing ethically. We also set 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.)

Professor Steele’S Opus, Gerald S. Reamey

Faculty Articles

Walter Steele is a consummate teacher precisely because he always is teaching. To observe him, to converse with him, to listen to him, to read him, is to learn something. He would not talk about ethical behavior in the classroom, only to cut corners in his private life. He would not demand razor-sharp logic from his students, and then allow himself to be sloppy in his own thinking.

Over the years, the word former students seem to use most often to describe Professor Steele is “intimidating.” He is intimidating because of his power; not the power some law professors wield …

The Ethics Of Communicating With Putative Class Members, Vincent R. Johnson

Faculty Articles

The ethical prohibition against contact with represented persons is an exacting rule. It carries with it the threat of serious consequences, including, but not limited to, attorney discipline, disqualification of counsel, and inadmissibility of evidence obtained in violation of its terms. However, there are still important unresolved questions relating to the interpretation of the rule, including its proper operation in class action litigation.

Following analysis, the various rationales offered in support of the rule fail to justify an application of the contact ban to communications with unnamed putative class members during the pre-certification period of class action litigation. Absent a …

Multiple Unities In The Law, Emily A. Hartigan

Faculty Articles

In a world newly in touch with its diversity, ethics must struggle with the impact difference has on coherence. There is a crucial dilemma more profound than how to avoid violating the canons of ethics, or how to dodge disciplinary proceedings. For the lawyer in a world of plural ethics—the dilemma posed by the primary tension in ethics today between reason and spirit.

There are multiple unities of meaning in which a lawyer works, a sort of multijurisdictionalism. These multiple unities, these many worlds, are emblematic of a time in which people are recognizing that multiculturalism is not a trendy …

Upon Leaving A Firm: Tell The Truth Or Hide The Ball, Charles E. Cantú, Jared Woodfull V

Faculty Articles

Over the last fifteen years, two divergent common law views have emerged regarding the enforceability of noncompetition clauses between attorneys. The first is exemplified by two Oregon appellate cases and the landmark New York Court of Appeals’ decision, Cohen v. Lord, Day & Lord, whereby noncompetition clauses between attorneys were found void as against public policy. The second adopts a contrary opinion, questioning the conventional wisdom that those who seek legal advice must be afforded the broadest possible choice of counsel.

At present, a balancing test is used to reject the per se impermissibility of noncompetition clauses between lawyers. However, …

On The Transformation Of The Legal Profession: The Advent Of Temporary Lawyering, Vincent R. Johnson, Virginia Coyle

Faculty Articles

The structure of the legal profession and the nature of law practice have changed dramatically during the past quarter of a century. Indeed, the transformation has been so thorough that it is difficult to say with confidence which of the many developments has had the greatest impact on the culture of law practice. The growth in the number of attorneys and law firms has been exponential; women and minorities comprise increasingly larger percentages of law school graduates, practitioners, and the academic bar; law firms are taking on greater and greater numbers of associates; starting salaries in major firms now approach …

Celluloid Legal Ethics: Discipline Redux (Video Review), Vincent R. Johnson

Faculty Articles

A recent addition to the field of video legal ethics is The Rest of the Story: Interviews with Two Disciplined Attorneys. Produced by Gerald Sternberg and Dyann Hafner, the film focuses on two attorneys who have been through the disciplinary process, covering how these attorneys got into trouble, what the disciplinary authorities did, and what advice the attorneys would give to other lawyers.

As an exercise in legal ethics “storytelling,” The Rest of the Story is a partial success. The second attorney on the film—who was disciplined for alcohol-related neglect of post-conviction criminal representation—is animated, engaging, and believable. He is …

Law-Givers, Story-Tellers, And Dubin’S Legal Heroes: The Emerging Dichotomy In Legal Ethics (Video Review), Vincent R. Johnson

Faculty Articles

Two camps have begun to emerge from the rich ferment in legal ethics teaching and scholarship over the last twenty years. The first group, whose members might be termed “law-givers,” consists of those who view legal ethics as chiefly concerned with the identification, transmission, and enforcement of uniform standards governing the conduct of lawyers. The second group—considerably smaller, but increasingly well-defined—might be called the “story-tellers.” The story-tellers place a higher value on persons and context than on principles and procedures, and on the cultivation of a deeper, less mechanical sense of professionalism than detailed rules can provide.

Larry Dubin’s most …

Solicitation Of Law Firm Clients By Departing Partners And Associates: Tort, Fiduciary, And Disciplinary Liability, Vincent R. Johnson

Faculty Articles

May a departing attorney, with or without firm consent, contact clients of the firm, in person or in writing, for the purpose of soliciting their present and future legal business? This is the question being asked because in recent years there has been a marked increase in the number of attorneys switching firms, many of whom seek to take with them the business of their former firm’s clientele. While the contours of permissible departure-based solicitation were once clearly and narrowly circumscribed by the rules of legal ethics, the continued validity of those restrictions is seriously placed in doubt by the …

A Uniform Rule Governing The Admission And Practice Of Attorneys Before United States District Courts, Michael S. Ariens

Faculty Articles

The increase in the interstate and international practice of law necessitates a review of the rules governing the admission of attorneys to practice before federal district courts. By virtue of the sweep of their jurisdictional net, federal district courts are likely to be the fora for litigating most interstate or international disputes. The present rules, based upon the antiquated notion that lawyers only rarely practice law in federal district court, and then only in the federal district court located in the state in which they practice, do not address this change in the practice of law.

For these reasons, a …