Law Commons^™

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 …

Creation, Liberation, And Property: Virtues And Values Toward A Theocentric Earth Ethic, W. Wade Berryhill

Law Faculty Publications

Religion continues to play a significant role in shaping our attitudes toward nature.2 Time-honored principles of stewardship of the land demand that we owe a duty to future generations to allow them to inherit a healthy environment. Essential to this obligation is spiritual faith, not the trendy brand of secular humanism espoused by ecodogmatists seeking environmental justice through means unmoored from centuries-old principles of creation. What secular humanism ignores-and what religious traditions the world over have recognizedis the reality that we are a "creative expression of the earth's own evolution."3 Thus, in light of our duty to posterity, mere emphasis …

Mid-Atlantic Ethics Committee Newsletter, Summer 2003

Mid-Atlantic Ethics Committee Newsletter

No abstract provided.

Let's Put Ourselves Out Of Business: On Respect, Responsibility, And Dialogue In Dispute Resolution, Jonathan R. Cohen

UF Law Faculty Publications

This Essay works in two steps. I want to daydream with you about the future, or what I hope will someday be the future, of our dispute resolution movement. I want to then use these imaginings to reflect upon where we are today. I want to suggest something that may at first seem odd: Our ultimate goal should be to put ourselves, or virtually put ourselves, out of business. Eventually, I hope the time will come when we live in a society where the expert services of dispute resolution professionals, including not only lawyers and judges but also mediators and …

The Long Time Scales Of Human-Caused Climate Warming: Further Challenges For The Global Policy Process, Jerry D. Mahlman

Water, Climate and Uncertainty: Implications for Western Water Law, Policy, and Management (Summer Conference, June 11-13)

28 pages.

"Jerry D. Mahlman, Senior Research Fellow, National Center for Atmospheric Research"

"Presented at the Pew Center Workshop on The Timing of Climate Change Policies, The Westin Grand Hotel, Washington, DC, October 10-12, 2001"

"Cite As: Mahlman, J.D. 2001. The Long Time Scales of Human-Caused Climate Warming: Further Challenges for the Global Policy Process. Pew Center Workshop on the Timing of Climate Change Policies, October 10-12, Pew Center on Global Climate Change, Arlington, VA."

Mid-Atlantic Ethics Committee Newsletter, Spring 2003

Mid-Atlantic Ethics Committee Newsletter

No abstract provided.

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 …

Racial Discrimination In Jury Selection: Professional Misconduct, Not Legitimate Advocacy, Lonnie T. Brown, Jr.

Scholarly Works

This Article examines the paradox between the adversary and disciplinary systems' outward condemnation of discrimination in jury selection and their apparent simultaneous inward acceptance of such conduct as legitimate advocacy.

Killing For The State: The Darkest Side Of American Nursing, Dave Holmes, Cary H. Federman

Department of Justice Studies Faculty Scholarship and Creative Works

The aim of this article is to bring to the attention of the international nursing community the discrepancy between a pervasive ‘caring’ nursing discourse and the most unethical nursing practice in the United States. In this article, we present a duality: the conflict in American prisons between nursing ethics and the killing machinery. The US penal system is a setting in which trained healthcare personnel practices the extermination of life. We look upon the sanitization of death work as an application of healthcare professionals’ skills and knowledge and their appropriation by the state to serve its ends. A review of …

I Don't Have Time To Be Ethical: Addressing The Effects Of Billable Hour Pressure, Susan Saab Fortney

Faculty Scholarship

This article discusses the unintended consequences of the billable hour derby and suggests changes to address the deleterious effects of increasing billable hour requirements. A brief introduction identifies law firms’ recent tendency to increase the billable hour requirements to fund the heightened salaries of associates. This article analyzes the results from an empirical study focused on the effects of billable hour expectations and firm cultures. Part I generally reviews the study findings. Part II discusses the work and report of the ABA Commission, while Part III indentifies those issues and approaches that the ABA and firm managers should explore. Recognizing …

Professionalism Without Parochialism: Julius Henry Cohen, Rabbi Nachman Of Breslov, And The Stories Of Two Sons, Samuel J. Levine

Scholarly Works

Professor Levine addresses the question of whether the practice of law a business or a profession and looks at sources where practitioners might draw inspiration for ethical behaviors. He examines two works: a 1916 book by Julius Henry Cohen - The Law: Business or Profession?; and a tale by Chasidic master Rabbi Nachman of Breslov. Both works tell the story of two sons from two different fathers with different ethical natures that manifest in their different choices of and approaches to their careers. Professor Levine uses these two parables to suggest that a more inclusive question than those posed above: …

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) …

The Cost Of Humanitarian Assistance: Ethical Rules And The First Amendment, John P. Sahl

Akron Law Faculty Publications

For many Americans, the choice between affording legal assistance--a luxury item--and covering basic living expenses appears to represent a choice in name only. Most states prohibit lawyers from providing clients with financial assistance to cover these living expenses. In a few states, lawyers may help clients with living expenses by advancing or guaranteeing financial assistance. Given accurate information about the availability of legal services, poor people may find themselves able to protect important legal rights.

In Part I, this Article reviews the origins of and reasons for the ban on lawyer advancement of living expenses to clients when litigation is …

Popular Culture As A Lens On Legal Professionalism, Hillary B. Farber, Alexander Scherr

Faculty Publications

This Article argues that the cultural images of lawyering provide opportunities for teaching professionalism that go well beyond the teaching of ethical rules using hypothetical facts. We contend that use of different media allows teachers to chart the broad middle ground between disciplinary minima and aspirational maxima - the map of realistic professional practice. This ground includes both rule- and conduct-based ideas of professionalism: careful role definition; responsible practice management; appropriate balance between public and private commitments; and concerns over manners, dress, and work ethic. The middle ground also includes less traditional content, discussion of which brings students to appreciate …

Conflict Of Interest From Preparing Note Used By Client: Hetos Invs., Ltd. V Kurtin, 2003, Roger Bernhardt

Publications

This article discusses a California case which held that a law firm not barred from representing its client in a lawsuit contending that a promissory note it prepared on the client’s behalf was usurious under California law.

Bring On 'Da Noise: The Sec's Proposals Concerning Professional Conduct For Attorneys Under Sarbanes-Oxley, Marilyn Blumberg Cane, Sarah Smith Kelleher

Faculty Scholarship

In the wake of Enron's and numerous other corporate scandals, Congress enacted the Sarbanes-Oxley Act, which empowered the Securities and Exchange Commission (the Commission) to establish rules of professional conduct for attorneys who appear before it. In November 2002, the Commission released a proposal where attorneys would be required to report perceived violations of corporate governance and Commission rules up-the-ladder. Additionally, if the company failed to make an appropriate response, the attorney would be required to make a noisy withdrawal. After an onslaught of comments against the proposal, the Commission issued an alternative proposal for comment.

Under the alternative rule, …

'What's Love Got To Do With It?' - 'It's Not Like They're Your Friends For Christ's Sake' : The Complicated Relationship Between Lawyer And Client, Robert J. Condlin

Faculty Scholarship

Should lawyers love their clients and try to be their friends? Highly regarded legal scholars have defended the “lawyer-as-friend” analogy in the past, although usually on the basis of a more contractual understanding of friendship than the understanding currently in vogue. These past efforts were widely criticized on a variety of grounds, and after a period of debate, support for the analogy appeared to wane. That is until recently, when other scholars, looking at the topic from a more religious perspective, have asserted a refined version of the friendship analogy as the proper model for lawyer-client relations. It is this …

Economic Suicide: The Collision Of Ethics And Risk In Securities Law, Barbara Black, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

The first part of this article looks at whether there are any legal principles derived from regulation or the case law to support an “economic suicide” claim. The second part of the article reviews arbitrators' awards to determine whether arbitrators do, in fact, decide favorably on economic suicide claims. The article also looks at some arbitrators' awards that appear to recognize an economic suicide claim to identify any factors that may lead arbitrators to award damages to the claimant. Finally, in the third part, we address whether policy considerations support an extension of recognized brokers' duties to include a duty …

Habermas@Discourse.Net: Toward A Critical Theory Of Cyberspace, A. Michael Froomkin

Articles

No abstract provided.

Symposium: Client Counseling And Moral Responsibility, Thomas L. Shaffer, Deborah L. Rhode, Paul R. Tremblay, Robert F. Cochran

Journal Articles

One of the most important challenges to lawyers and clients is addressing issues that are not controlled by law. Will the client take steps (legal steps) that will harm other people? Will the officers of a corporation consider the effects of its actions on workers, on consumers, on the community, on the environment? In a divorce, will the client take actions that will harm a child or spouse? What role should the lawyer play regarding these questions? The way lawyers address such issues may do more to determine whether their practice is socially useful or socially harmful than any rule …

A Response To Russell Pearce, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

There is not very much to criticize in what Professor Pearce has said about the MacCrate Report. Mostly, therefore, I will just amplify some of the points that I regard as among the most important. Before that, however, I want to mention some quibbles. First, I have always been bothered a bit when people describe the lawyer's role as that of a hired gun. The term “hired gun” is (if you'll pardon the expression) loaded. It does not, moreover, correctly capture either the good or the questionable of what lawyers actually try to do when representing their clients. Real hired …

Protecting Human Research Subjects: A Jurisdictional Analysis, Jennifer Llewellyn, Jocelyn Downie, Robert Holmes

Articles, Book Chapters, & Popular Press

The most recent speech from the throne contained a pledge from the federal government to "work with provinces to implement a national system for the governance of research involving humans, including national research ethics and standards." This commitment signals a desire on the part of the federal government to address concerns about the inadequacies of the current governance of health research involving humans (RIH). To this end, Health Canada's Ethics Division is currently exploring the ways in which such a national governance system for RIH might be implemented. It is important for the federal government, as it moves toward making …

Lawyers And Biblical Prophets, Thomas L. Shaffer

Journal Articles

This is part of a broader exploration of the suggestion that the biblical prophets-Moses, Isaiah, Jeremiah, Amos, Nathan, and the others-are sources of ethical reflection and moral example for modern American lawyers. The suggestion appears to be unusual; I am not sure why.

The Prophets were, more than anything else, lawyers-as their successors, the Rabbis of the Talmud, were. They were neither teachers nor bureaucrats, not elected officials or priests or preachers. And the comparison is not an ancient curiosity:

Much of what admirable lawyer-heroes have done in modern America has been prophetic in the biblical sense-that is, what they …

Contractarian Economics And Mediation Ethics: The Case For Customizing Neutrality Through Contingent Fee Mediation, Scott R. Peppet

Publications

No abstract provided.

Protecting Human Research Subjects: A Jurisdictional Analysis, Jennifer Llewellyn, Jocelyn Downie, Robert Holmes

Articles, Book Chapters, & Popular Press

The most recent speech from the throne contained a pledge from the federal government to "work with provinces to implement a national system for the governance of research involving humans, including national research ethics and standards." This commitment signals a desire on the part of the federal government to address concerns about the inadequacies of the current governance of health research involving humans (RIH). To this end, Health Canada's Ethics Division is currently exploring the ways in which such a national governance system for RIH might be implemented. It is important for the federal government, as it moves toward making …

Retrying Race, Anthony V. Alfieri

Articles

No abstract provided.

Competition, Corporate Responsibility, And The China Question, Jospeh Vining

Other Publications

"Corporate responsibility" is not a peripheral matter. It is at the core of all decision-making on behalf of business corporations under American law. This paper examines the effort to add an exemption for "business" in corporate form to the exemptions from ordinary responsibility that are seen in other areas of activity - e.g., for the military, for lawyers in adversarial litigation, or for investigators in scientific research. It looks at a number of well known cases and points to the often neglected relevance of both the criminal law applicable to corporations as such, and the evolving professional responsibility of corporate …

The Puzzle Of Ex Ante Efficiency: Does Rational Approvability Have Moral Weight?, Matthew D. Adler

Faculty Scholarship

A governmental decision is "ex ante efficient" if it maximizes the satisfaction of everyone's preferences ex ante, relative to other possible decisions. Equivalently, each affected person would be rational to approve the decision, given her preferences and beliefs at the time of the choice. Does this matter, morally speaking? Do governmental officials - legislators, judges, regulators - have a moral reason to make decisions that are ex ante efficient? The economist's answer is "yes." "Ex ante efficiency" is widely seen by welfare economists to have moral significance, and often appears within law-and-economics scholarship as a criterion for evaluating legal doctrines. …

Why We Need The Independent Sector: The Behavior, Law, And Ethics Of Not-For-Profit Hospitals, Jill R. Horwitz

Articles

Among the major forms of corporate ownership, the not-for-profit ownership form is distinct in its behavior, legal constraints, and moral obligations. A new empirical analysis of the American hospital industry, using eleven years of data for all urban general hospitals in the country, shows that corporate form accounts for large differences in the provision of specific medical services. Not-for-profit hospitals systematically provide both private and public goods that are in the public interest, and that other forms fail to provide. Two hypotheses are proposed to account for the findings, one legal and one moral. While no causal claims are made, …

How To Be A Moorean, Donald H. Regan

Articles

G. E. Moore’s position in the moral philosophy canon is paradoxical. On the one hand, he is widely regarded as the most influential moral philosopher of the twentieth century. On the other hand, his most characteristic doctrines are now more often ridiculed than defended or even discussed seriously. I shall discuss briefly a number of Moorean topics—the nonnaturalness of “good,” the open question argument, the relation of the right and the good, whether fundamental value is intrinsic, and the role of beauty—hoping to explain how a philosophically informed person could actually be a Moorean even today.1