Law Commons^™

Transformations In Health Law Practice: The Intersections Of Changes In Healthcare And Legal Workplaces, Louise G. Trubek, Barbara Zabawa, Paula Galowitz

Faculty Works

The passage and implementation of the Affordable Care Act is propelling transformations in health care. The transformations include integration of clinics and hospitals, value based care, patient centeredness, transparency, computerized business models and universal coverage. These shifts are influencing the practice of health law, a vibrant specialty field considered a "hot" area for new lawyers. The paper examines how the transformations in health care are intersecting with ongoing trends in law practice: increase in in-house positions, collaboration between medical and legal professionals, and the continued search for increased access to legal representation for ordinary people. Three health law workplace sites …

Something's Afoot And It's Time To Pay Attention: Thinking About Lawyer Regulation In A New Way, Laurel Terry

Faculty Scholarly Works

No abstract provided.

What's Money Got To Do With It?: Public Interest Lawyering And Profit, Kathryn A. Sabbeth

Faculty Publications

No abstract provided.

What Do We Talk About When We Talk About Control, Anthony J. Sebok

Articles

Despite the recent rejection by the ABA of attempts to weaken the limitations on the sharing of fees with non-lawyers, pressure to allow laypersons to invest in lawsuits remains. This article looks at one argument against lay investment in litigation, which is that laypersons should not be able to control how litigation is conducted.

Regulating Electronic Legal Support Across State And National Boundaries, Cassandra Burke Robertson

Faculty Publications

Technology and globalization are changing the practice of law and creating new challenges for lawyer regulation. Middle-class litigants who struggle to afford legal services — but are comfortable using online resources — are increasingly seeking and finding legal support online. State and national boundaries dissolve in the online marketplace, making it easy for attorneys to provide services to litigants in other jurisdictions. Differences in national economies make it cost effective for both clients and lawyers to engage in transnational practice, so that attorneys in India and other jurisdictions can offer legal support and advice to American litigants for as little …

How Much Is That Lawsuit In The Window; Pricing Legal Claims, Maya Steinitz

Faculty Scholarship

This article poses the question: How should parties to litigation finance agreements – third party funding or contingency fees – deal with the inherent difficulty in pricing legal claims? It answers that a practical solution would be to use staged funding. Staged funding side-step the impossibility of accurately pricing litigation ex ante by allowing re-pricing and exit that are pegged to information disclosure. Done right, staging allows all parties to minimize the effects of uncertainty, better price their bargain, optimize the distribution of the proceeds of litigation between its different investors – far beyond practices common today. Staged funding also …

Legal Ethics Versus Political Practices: The Application Of The Rules Of Professional Conduct To Lawyer-Politicians, Andrew Martin

Articles, Book Chapters, & Popular Press

Canadian legal ethics has paid little attention to how the rules of professional conduct for lawyers apply to lawyer-politicians – that is, politicians who happen to be lawyers. This article addresses this issue with reference to what Canadian case law and commentary do exist, supplemented by more plentiful American materials. It proposes a distinction between conduct that is politically expedient and conduct in which lawyer-politicians’ duties as lawyers come into apparent conflict with their duties of office. Canadian case law reveals three conflicting approaches to this latter category: that the duties of a lawyer prevail, that the duties of a …

School Of Risk Control Excellence: Responsibilities In Tax Practice And Malpractice Risks, Diane S. Wainwright

William & Mary Annual Tax Conference

No abstract provided.

The Litigation Finance Contract, Maya Steinitz

Faculty Scholarship

Litigation funding-for-profit, nonrecourse funding of a litigation by a nonparty-is a new and rapidly developing industry. It has been described as one of the "biggest and most influential trends in civil justice" today by RAND, the New York Times, and others. Despite the importance and growth of the industry, there is a complete absence of information about or discussion of litigation finance contracting, even though all the promises and pitfalls of litigation funding stem from the relationships those contracts establish and organize. Further, the literature and case law pertaining to litigation funding have evolved from an analogy between litigation funding …

Who Watches The Watchers In Public Corruption Cases?, Richard E. Myers Ii

Faculty Publications

No abstract provided.

Legal Ethics For The Millennials Avoiding The Compromise Of Integrity, Helia Garrido Hull

Faculty Scholarship

No abstract provided.

Regulation And Theory: What Does Reality Have To Do With It, Laurel Terry

Faculty Scholarly Works

No abstract provided.

The John E. Schiller Chair In Legal Ethics Inaugural Lecture April 20, 2011 Program

Hannah Buxbaum (2011-2013 Interim)

No abstract provided.

Integrating "Alternative" Dispute Resolution Into Bankruptcy: As Simple (And Pure) As Motherhood And Apple Pie?, Nancy A. Welsh

Faculty Scholarship

Today, there can be little doubt that “alternative” dispute resolution is anything but alternative. Nonetheless, many judges, lawyers (and law students) do not truly understand the dispute resolution processes that are available and how they should be used. In the shadow of the current economic crisis, this lack of knowledge is likely to have negative consequences, particularly in those areas of practice such as bankruptcy and foreclosure in which clients, lawyers, regulators, and courts work under pressure, often with inadequate time and financial resources to permit careful analysis of procedural options. Potential negative effects can include: (1) impairment of a …

Investigative Deceit, Kevin C. Mcmunigal

Faculty Publications

Is it ever ethical for a lawyer to ask or assist another person to lie on behalf of a client? Despite ethical rules categorically banning both personal and vicarious deceit, prosecutors routinely supervise police officers and informants who use deceit in investigating drug and sex offenses, organized crime, and terrorism. May defense lawyers make use of investigative deceit in criminal investigations? In this Essay, the Author examines this issue, the ethical rules bearing on it, and the recent trend in a number of jurisdictions allowing the use of investigative deceit by the defense. Drawing on his participation in a series …

Advocacy Revalued, Geoffrey C. Hazard Jr., Dana A. Remus

All Faculty Scholarship

A central and ongoing debate among legal ethics scholars addresses the moral positioning of adversarial advocacy. Most participants in this debate focus on the structure of our legal system and the constituent role of the lawyer-advocate. Many are highly critical, arguing that the core structure of adversarial advocacy is the root cause of many instances of lawyer misconduct. In this Article, we argue that these scholars’ focuses are misguided. Through reflection on Aristotle’s treatise, Rhetoric, we defend advocacy in our legal system’s litigation process as ethically positive and as pivotal to fair and effective dispute resolution. We recognize that advocacy …

A Tale Of Prosecutorial Indiscretion: Ramsey Clark And The Selective Non-Prosecution Of Stokely Carmichael, Lonnie T. Brown

Scholarly Works

During the height of the Vietnam War and one of the most volatile periods of the civil rights movement, then-Attorney General Ramsey Clark controversially resisted intense political pressure to prosecute Black Power originator and antiwar activist Stokely Carmichael. Taken in isolation, this decision may seem courageous and praiseworthy, but when considered against the backdrop of Clark’s contemporaneous prosecution of an all-white group of similarly situated anti-draft leaders (the so-called Boston Five), his exercise of prosecutorial discretion becomes suspect. Specifically, the Boston Five were prosecuted in 1968 for conspiracy to aid and abet draft evasion, a charge for which the evidence …

Imputed Liability For Supervising Prosecutors: Applying The Military Doctrine Of Command Responsibility To Reduce Prosecutorial Misconduct, Geoffrey S. Corn, Adam M. Gershowitz

Faculty Publications

No abstract provided.

'...And The Learners Shall Inherit The Earth': Continuing Professional Development, Life Long Learning And Legal Ethics Education, Richard Devlin, Jocelyn Downie

Articles, Book Chapters, & Popular Press

After many years of debate and resistance the Canadian legal profession is finally accepting that compulsory professional development is a necessity. We argue that as the legal profession begins to design and deliver these programmes it should take into consideration the insights of the educational literature on lifelong learning. By way of a concrete example we explore the ways in which lifelong learning theory can inform the design and delivery of legal ethics education.

Is The Attorney-Client Privilege Under Attack?, Nancy B. Rapoport, Jennifer Gross

Scholarly Works

This short article discusses the Textron case and attorney-client privilege in foreign jurisdictions.

What Went Wrong: Torture And The Office Of Legal Counsel In The Bush Administration: Hearing Before The Subcomm. On Administrative Oversight And The Courts Of The S. Comm. On The Judiciary, 111th Cong., May 13, 2009 (Statement Of David Luban, Prof. Of Law, Geo. U. L. Center), David Luban

Testimony Before Congress

The mission of the Office of Legal Counsel is to give the President advice to guide him in fulfilling an awesome constitutional obligation: to take care that the laws are faithfully executed. Faithful execution means interpreting the law without stretching it and without looking for loopholes. OLC's job is not to rubber-stamp administration policies, and it is not to provide legal cover for illegal actions.

Unfortunately, the interrogation memos fall far short of professional standards of candid advice and independent judgment. They involve a selective and in places deeply eccentric reading of the law. The memos cherry-pick sources of law …

Prosecutorial Shaming: Naming Attorneys To Reduce Prosecutorial Misconduct, Adam M. Gershowitz

Faculty Publications

This Article explores the unfortunately large number of instances in which appellate courts reverse convictions for serious prosecutorial misconduct but do not identify the names of the prosecutors who committed that misconduct. Because judges are reluctant to publicly shame prosecutors whose cases are reversed, this Article advocates that a neutral set of third parties undertake the responsibility of publicly identifying prosecutors who have committed serious misconduct. The naming of prosecutors will shame bad actors, provide a valuable pedagogical lesson for junior prosecutors, and signal to trial judges that certain prosecutors must be monitored more closely to avoid future misconduct.

Toward A Revised 4.2 No-Contact Rule, Geoffrey C. Hazard Jr.

All Faculty Scholarship

No abstract provided.

Fitness For Purpose: Mandatory Continuing Legal Ethics Education For Lawyers, Jocelyn Downie, Richard Devlin

Articles, Book Chapters, & Popular Press

The authors argue that if we want lawyers to be fit for the purpose of practicing law, and law societies to be fit for the purpose of regulating in the public interest, then it is incumbent upon the Canadian legal profession to adopt programmes of compulsory legal ethics education (CLEE). In support of this argument the authors: provide several reasons why Canadians might be concerned about the ethical fitness of lawyers and law societies; analyse several arguments both in supporting and resisting CLEE; suggest several strategies for overcoming the ethical indolence of the legal profession; and draw inspiration from recent …

Legal And Managerial "Cultures" In Corporate Representation, Geoffrey C. Hazard Jr.

All Faculty Scholarship

No abstract provided.

Whistleblowing Attorneys And Ethical Infrastructures, Alex B. Long

Scholarly Works

Rule 5.1 of the ABA’s Model Rules of Professional Conduct requires law firm partners to make reasonable efforts to supervise subordinate attorneys and to ensure that the firm has internal measures in place that give 'reasonable assurance' that all lawyers within the firm are complying with their ethical obligations. Despite the existence of this ethical duty, there are enough judicial decisions involving attorneys who have been fired for blowing the whistle on unethical conduct to lead one to suspect that perhaps law firm compliance measures regarding Rule 5.1 leave something to be desired. This Article discusses the role that a …

From The Department Of Justice To Guantanamo Bay; Administration Lawyers And Administration Interrogation Rules, Part I: Hearing Before The Subcomm. On The Constitution, Civil Rights And Civil Liberties Of The H. Comm. On The Judiciary, 110th Cong., May 6, 2008 (Statement Of David Luban, Prof. Of Law, Geo. U. L. Center), David Luban

Testimony Before Congress

Government lawyers have an awesome responsibility. Office of Legal Counsel opinions bind the entire executive branch. They have the force of law inside that branch. The idea that unelected lawyers are writing secret legal opinions that spin the law makes a mockery of democratic government. It means the executive branch is governed by a secret constitution - a constitution written by activist lawyers instead of the constitution written by the Framers.

Without getting too deeply into technicalities which, quite frankly, only a lawyer could love, let me summarize in a bit more detail just how spun the torture memos were.

Exculpatory Evidence, Ethics, And The Road To The Disbarment Of Mike Nifong: The Critical Importance Of Full Open-File Discovery, Robert P. Mosteller

Faculty Publications

No abstract provided.

Structure And Integrity, Susan Carle

Articles in Law Reviews & Other Academic Journals

In this Review Essay of David Luban's Legal Ethics and Human Dignity, I argue that although Professor Luban has not had much to say until now about "structural" concerns - namely, how lawyers' locations within institutions that organize access to power shape or should shape those lawyers' conduct - in his most recent work, another approach slips in as a supplement to his individualist framework. In this emerging supplement, structural concerns become increasingly important. Although individual integrity continues to matter most in Professor Luban's world view, it increasingly matters in the context of structural relations in which lawyers' ethical duties …

The Practice Of Teaching, The Practice Of Law: What Does It Mean To Practice Responsibly?, Howard Lesnick

All Faculty Scholarship

No abstract provided.