Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Legal Ethics and Professional Responsibility (33)
- Legal Profession (13)
- Civil Procedure (3)
- Criminal Law (3)
- Criminal Procedure (3)
-
- Dispute Resolution and Arbitration (3)
- Civil Rights and Discrimination (2)
- Courts (2)
- Judges (2)
- Law and Society (2)
- Legal Education (2)
- Legal Writing and Research (2)
- Litigation (2)
- State and Local Government Law (2)
- Business Organizations Law (1)
- Computer Law (1)
- Disability Law (1)
- Evidence (1)
- Indigenous, Indian, and Aboriginal Law (1)
- International Law (1)
- Internet Law (1)
- Labor and Employment Law (1)
- Legal Studies (1)
- Marketing Law (1)
- Public Law and Legal Theory (1)
- Social and Behavioral Sciences (1)
- Supreme Court of the United States (1)
- Institution
-
- St. Mary's University (8)
- University of Kentucky (7)
- Fordham Law School (3)
- University of Colorado Law School (3)
- University of Montana (3)
-
- George Washington University Law School (2)
- University of Baltimore Law (2)
- University of Georgia School of Law (2)
- University of Pennsylvania Carey Law School (2)
- Boston University School of Law (1)
- Case Western Reserve University School of Law (1)
- Cornell University Law School (1)
- Florida A&M University College of Law (1)
- Liberty University (1)
- Mississippi College School of Law (1)
- Northwestern Pritzker School of Law (1)
- Nova Southeastern University (1)
- University of Michigan Law School (1)
- University of Missouri-Kansas City School of Law (1)
- University of Richmond (1)
- University of Washington School of Law (1)
- Western New England University School of Law (1)
- Publication Year
- Publication
-
- Faculty Articles (8)
- Law Faculty Scholarly Articles (7)
- Faculty Scholarship (6)
- All Faculty Scholarship (4)
- Faculty Journal Articles & Other Writings (3)
-
- Publications (3)
- Articles (2)
- GW Law Faculty Publications & Other Works (2)
- Scholarly Works (2)
- Cornell Law Faculty Publications (1)
- Faculty Publications (1)
- Faculty Publications and Presentations (1)
- Faculty Working Papers (1)
- Faculty Works (1)
- Journal Articles (1)
- Journal Publications (1)
- Law Faculty Publications (1)
Articles 1 - 30 of 45
Full-Text Articles in Law
The Search For Clarity In An Attorney's Duty To Google, Michael Thomas Murphy
The Search For Clarity In An Attorney's Duty To Google, Michael Thomas Murphy
All Faculty Scholarship
Attorneys have a professional duty to investigate relevant facts about the matters on which they work. There is no specific rule or statute requiring that an attorney perform an internet search as part of this investigation. Yet attorneys have been found by judges to violate a “Duty to Google” when they have failed to conduct an internet search for relevant information about, for example, a claim, their own client, and even potential jurors in a trial.
So much information is now available to attorneys so easily in electronic search results, it is time to wonder where, when, and how much …
May Class Counsel Also Represent Lead Plaintiffs?, Bruce A. Green, Andrew Kent
May Class Counsel Also Represent Lead Plaintiffs?, Bruce A. Green, Andrew Kent
Faculty Scholarship
For decades, courts and commentators have been aware that the potential for conflicting interests among the class representatives, class counsel, and absent class members is inherent in the class action device. Notwithstanding this realization and a substantial amount of scholarly and judicial commentary on class conflicts, one kind of conflict has not received due attention: the conflict that inevitably arises when class counsel also represents class members as individuals. We demonstrate that this conflict— so common to be almost invisible—arises from the very beginning of a putative class representation, and may create a fraught situation for a lawyer concurrently representing …
Learning To Be More Than A Lawyer, Carol Morgan
The Paragraph 20 Paradox: An Evaluation Of The Enforcement Of Ethical Rules As Substantive Law, Donald E. Campbell
The Paragraph 20 Paradox: An Evaluation Of The Enforcement Of Ethical Rules As Substantive Law, Donald E. Campbell
Journal Articles
Paragraph 20 in the Scope section of the American Bar Association (ABA) Model Rules of Professional Conduct (Model Rules)-which most states have adopted-provides that a violation of the Model Rules "should not give rise to a cause of action against a lawyer[,] nor should it create any presumption in such a case that a legal duty has been breached." At the same time, Paragraph 20 provides that the Model Rules can be used as "evidence" of breach of a lawyer's standard of conduct. Thus, the Model Rules attempt to make it clear that ethical violations are distinct from substantive law …
Sorting: Legal Specialization And The Privatization Of The American Legal Profession, Michael S. Ariens
Sorting: Legal Specialization And The Privatization Of The American Legal Profession, Michael S. Ariens
Faculty Articles
Beginning in the 1950s, legal specialization was promoted to the majority of the American legal profession, small firm and solo practice lawyers, by the elite of the bar as the future of legal professionalism. Legal specialization was a form of sorting lawyers, and sorting was contrary to the traditional understanding of an undivided legal profession. Over the course of the next thirty years, this effort succeeded. This new understanding of legal professionalism emphasized the idea of competence based on a deep but particularized knowledge of law. This resulted in a slipping away of the beliefs that law was a public …
Reasons For Counseling Reasonableness In Deploying Covenants-Not-To-Compete In Technology Firms, Robert W. Gomulkiewicz
Reasons For Counseling Reasonableness In Deploying Covenants-Not-To-Compete In Technology Firms, Robert W. Gomulkiewicz
Articles
Some states ban the enforcement of employee covenants-not-to-compete (“non-competes”) but most enforce them to the extent they are reasonable. As such, “reasonableness” provides the touchstone for enforceability analysis. The academic literature commenting on the reasonableness of non-competes is large and growing. Scholars usually direct their comments to judges, legislators, and other scholars.
Rarely do they address practicing lawyers. That omission is particularly unfortunate because practicing lawyers, more than judges, legislators, and scholars, can affect whether non-competes work both fairly and effectively. This Article fills that void by providing reasons, directed to practicing lawyers, for deploying non-competes in a reasonable manner. …
The Last Hurrah: The Kutak Commission And The End Of Optimism, Michael S. Ariens
The Last Hurrah: The Kutak Commission And The End Of Optimism, Michael S. Ariens
Faculty Articles
No abstract provided.
In Defense Of The Devil’S Advocate, Lonnie T. Brown
In Defense Of The Devil’S Advocate, Lonnie T. Brown
Scholarly Works
mong the many controversial positions for which Monroe Freedman advocated during his illustrious career, the one that I find most surprising and uncharacteristic is his contention that lawyers who undertake morally questionable representations have a duty to explain or justify their choice of client. Specifically, in 1993 Professor Freedman penned a well-known column in the Legal Times — titled “Must You Be the Devil’s Advocate?” — in which he took Professor Michael Tigar to task for his representation of reputed Nazi war criminal John Demjanjuk. Professor Freedman tacitly criticized Professor Tigar for his client choice and expressly called upon him …
Advocate Yes; Witness No, Stephen A. Saltzburg
Advocate Yes; Witness No, Stephen A. Saltzburg
GW Law Faculty Publications & Other Works
This article examines United States v. Rangel-Guzman, 752 F.3d 1222 (9th Circ. 2014) to illustrate the possibility of a lawyer violating Model Rule of Professional Conduct 3.7 without ever becoming an official witness.
Email, Metadata, And Clouds, Oh My! Recent Changes To The Model Rules Of Professional Conduct, Joyce Manna Janto
Email, Metadata, And Clouds, Oh My! Recent Changes To The Model Rules Of Professional Conduct, Joyce Manna Janto
Law Faculty Publications
A discussion of how the 2012 revisions to the Model Rules of Professional Conduct affect the attorney's duties in handling email: encryption, storage, metadata, and confidentiality.
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
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 …
Friends Of Justice: Does Social Media Impact The Public Perception Of The Justice System?, Nicola A. Boothe-Perry
Friends Of Justice: Does Social Media Impact The Public Perception Of The Justice System?, Nicola A. Boothe-Perry
Journal Publications
Lawyers have long been recognized as being necessary in the effective functioning of an ordered society in roles as both officers of the court and, more broadly, as officers of the system of justice. In 2014, the ABA Task Force on the Future of Legal Education report noted that "[s]ociety has a deep interest in the competence of lawyers, in their availability to serve society and clients, in the broad public role they can play, and in their professional values." Values such as those noted in the Model Rules of Professional Conduct (advisor, counselor, and advocate) are instrumental in the …
The Agony Of Modern Legal Ethics, 1970–1985, Michael S. Ariens
The Agony Of Modern Legal Ethics, 1970–1985, Michael S. Ariens
Faculty Articles
When the American Bar Association (ABA) adopted its Code of Professional Responsibility at its annual meeting in August 1969, the American legal profession was a publicly respected and economically vibrant body. Lawyers, though always more feared than loved, became increasingly important in post-World War II America. The demand for their services exploded for a quarter-century, and lawyers assumed an increased role in the economic and political life of the United States. During the 1950s and early 1960s, the Cold War led American lawyers and other public figures to re-emphasize the rule of law as defining the difference between the United …
Roadblocks To Access To Justice: Reforming Ethical Rules To Meet The Special Needs Of Low-Income Clients, Louis S. Rulli
Roadblocks To Access To Justice: Reforming Ethical Rules To Meet The Special Needs Of Low-Income Clients, Louis S. Rulli
All Faculty Scholarship
The nation’s growing justice gap has left the poor with far too little access to legal representation, even in the most serious of civil matters. With poverty rates approaching their highest levels in the last fifty years, the poor struggle to hold on to their homes, their jobs, and their families, frequently overmatched by superior resources and an abundance of opposing lawyers representing corporations, government, and well-heeled interests. Non-profit lawyers struggle to provide limited assistance to the poor in high volume, community settings, or in courtroom corridors and on telephone hot lines. It is in these non-traditional settings that lawyers …
Lafler And Frye: A New Constitutional Standard For Negotiation, Rishi Batra
Lafler And Frye: A New Constitutional Standard For Negotiation, Rishi Batra
Faculty Articles
The Sixth Amendment guarantees "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." In 1984, the Supreme Court in Strickland v. Washington established the standard for ineffective assistance of counsel that is a violation of this right. In a pair of decisions handed down in 2012, Lafler v. Cooper and Missouri v. Frye the Supreme Court extended the holding in Strickland to cover ineffective assistance by defense counsel in the plea-bargaining phase. Recognizing that pleas account for ninety-five percent of all criminal convictions, the court stated that "the negotiation …
Lawyering For Groups: The Case Of American Indian Tribal Attorneys, Kristen A. Carpenter, Eli Wald
Lawyering For Groups: The Case Of American Indian Tribal Attorneys, Kristen A. Carpenter, Eli Wald
Publications
Lawyering for groups, broadly defined as the legal representation of a client who is not an individual, is a significant and booming phenomenon. Encompassing the representation of governments, corporations, institutions, peoples, classes, communities, and causes, lawyering for groups is what many, if not most, lawyers do. And yet, the dominant theory of law practice--the Standard Conception, with its principles of zealous advocacy, nonaccountability, and professional role-based morality--and the rules of professional conduct that codify it, continue to be premised on the basic antiquated assumption that the paradigmatic client-attorney relationship is between an individual client and an individual attorney. The result …
The Model Rules Of Professional Conduct Through The Lens Of The Proverbs, Scott E. Thompson
The Model Rules Of Professional Conduct Through The Lens Of The Proverbs, Scott E. Thompson
Faculty Publications and Presentations
No abstract provided.
Three Models Of Legal Ethics, Anthony D'Amato, Edward J. Eberle
Three Models Of Legal Ethics, Anthony D'Amato, Edward J. Eberle
Faculty Working Papers
This article presents a picture of each of the three theoretical models—autonomy, socialist, and deontological—and indicates how they differ from one another in their application to some aspects of attorney-client confidentiality, one of the most hotly debated topics of professional ethics.
The Disabled Lawyers Have Arrived; Have They Been Welcomed With Open Arms Into The Profession? An Empirical Study Of The Disabled Lawyer, Donald H. Stone
The Disabled Lawyers Have Arrived; Have They Been Welcomed With Open Arms Into The Profession? An Empirical Study Of The Disabled Lawyer, Donald H. Stone
All Faculty Scholarship
This Article proceeds in seven parts. Part I briefly outlines the ADA's position on reasonable accommodations. Part II addresses how law firms are reacting and responding to the fact that they employ lawyers with mood disorders, such as depression or bipolar disorder, attorneys with learning disabilities, and individuals with alcohol or drug addiction. What disabilities are most often represented? Are lawyers with disabilities apt to receive work modifications to accommodate their disability? Are attorneys with mental illness provided with less stressful case assignments? Are lawyers with substance use disorders and alcohol or drug addiction assigned co-counsel to monitor or offer …
The Model Rules Of Professional Conduct And Serving The Non-Legal Needs Of Clients: Professional Regulation In A Time Of Change, Robert Rubinson
The Model Rules Of Professional Conduct And Serving The Non-Legal Needs Of Clients: Professional Regulation In A Time Of Change, Robert Rubinson
All Faculty Scholarship
The practice of law is changing. Lawyers who act solely as advocates and zealous representatives of clients in legal matters still represent the core of what lawyers do and of how many lawyers see their work, but other trends are filtering into "on the ground" practice. Increasing numbers of lawyers are mediating, consulting on traditionally non-legal issues, and approaching clients' needs "holistically" by associating with and integrating other professional services. These trends cut across virtually all segments of the profession, from prosecutors and criminal defense lawyers, to lawyers whose practices involve, among other things, public interest work, personal injury, family …
American Legal Ethics In An Age Of Anxiety, Michael S. Ariens
American Legal Ethics In An Age Of Anxiety, Michael S. Ariens
Faculty Articles
The thesis of my article, “American Legal Ethics in an Age of Anxiety,” is that the historical development of American legal ethics was regularly accompanied by an anxiety within the profession. In general, I suggest the legal profession’s understanding of its ethical precepts has been molded and reshaped during periods of professional anxiety. The profession’s understanding of legal ethics changed dramatically during various crises in the 19th century, exemplified by the different approaches taken by David Hoffman in the mid-1830s, George Sharswood in the mid-1850s, and David Dudley Field in the early 1870s. In each case, however, the triggering event …
Mr. Prinzo's Breakthrough And The Limits Of Confidentiality, Nancy J. Moore
Mr. Prinzo's Breakthrough And The Limits Of Confidentiality, Nancy J. Moore
Faculty Scholarship
Engaging students in the required Professional Responsibility course is not always easy. There are many ways we attempt to overcome this resistance, including bringing in current events, emphasizing remedies other than lawyer discipline, and making use of a number of currently available audio-visual aids, including clips from movies and television shows. In this article, the author describes her use of Mr. Prinzo's Breakthrough, an absurd, black humor short story by Bruce Jay Friedman, to teach the limits of the obligation of confidentiality.
On Terrorism And Whistleblowing, Michael P. Scharf, Colin T. Mclaughlin
On Terrorism And Whistleblowing, Michael P. Scharf, Colin T. Mclaughlin
Faculty Publications
At a Bio-Terrorism Conference at Case Western Reserve University School of Law on March 31, 2006, the government participants were asked what they would do if a superior instructed them not to disclose information to the public about the likely grave health affects of an ongoing bio-terrorist attack. In response, they indicated that they would be reluctant to become a "whistleblower." This is not surprising since, despite the federal and state laws that purport to facilitate such whistleblowing for the public good, government whistleblowers routinely have faced loss of promotion, harassment, firing, and in some instances criminal prosecution when they …
The Ethics Of Copyrighting Ethics Rules, Michael S. Ariens
The Ethics Of Copyrighting Ethics Rules, Michael S. Ariens
Faculty Articles
The American Bar Association’s (“ABA”) practice of requiring students to purchase the Model Rules of Professional Conduct is exploitative and unethical. The ABA uses its role in training lawyers to create a situation which all but requires law students and bar applicants to purchase the organization’s own Model Rules. The fact that the Model Rules constitute a substantial revenue stream for the ABA is due less to lawyers’ desire to brush up on Model Rules of Professional Conduct, which are not laws, than to the ABA's direct role in approving law schools and its indirect role in licensing lawyers.
Law …
Why Were Perry Mason's Clients Always Innocent? The Criminal Lawyer's Moral Dilemma - The Criminal Defendant Who Tells His Lawyer He Is Guilty, Randolph Braccialarghe
Why Were Perry Mason's Clients Always Innocent? The Criminal Lawyer's Moral Dilemma - The Criminal Defendant Who Tells His Lawyer He Is Guilty, Randolph Braccialarghe
Faculty Scholarship
No abstract provided.
Multidisciplinary Business Planning Firms: Expanding The Regulatory Tent Without Creating A Circus, Anthony J. Luppino
Multidisciplinary Business Planning Firms: Expanding The Regulatory Tent Without Creating A Circus, Anthony J. Luppino
Faculty Works
Students studying business planning in an American law school should be told up front that a twenty-first century transactional lawyer rarely encounters a truly simple business transaction. Legal educators acknowledge the need to emphasize the complex, multidisciplinary nature of advising modern business clients. Law students must be introduced to the reality that transactional attorneys routinely collaborate with accountants, engineers, and other types of specialists and consultants to properly identify issues and address their clients' needs. Businesses - particularly firms comprised of entrepreneurs on tight budgets in terms of both time and money - benefit greatly when relevant information is accurately …
The Ethics 2000 Process: Revisions To The Aba Model Rules Approved By The Aba House Of Delegates, Irma S. Russell
The Ethics 2000 Process: Revisions To The Aba Model Rules Approved By The Aba House Of Delegates, Irma S. Russell
Faculty Journal Articles & Other Writings
This article provides examples of the Ethics 2000 Commission's work and examines a few changes likely to affect lawyers practicing in the environmental arena.
Just Between Us -- Aba Considers New Ethical Rules, Irma S. Russell
Just Between Us -- Aba Considers New Ethical Rules, Irma S. Russell
Faculty Journal Articles & Other Writings
This article briefly describes one of the proposed rule revisions (Model Rule 1.6) to the Model Rules of Professional Conduct that will be presented to the ABA House of Delegates in July 2001 by the Ethics 2000 Commission.
Renewed Introspection And The Legal Profession, Eugene R. Gaetke
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
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 …