Law Commons^™

The Torture Lawyers, Jens David Ohlin

Jens David Ohlin

One of the longest shadows cast by the Bush Administration’s War on Terror involves the fate of the torture lawyers who authored or signed memoranda regarding torture or enhanced interrogation techniques against detainees. Should they face professional sanction or even prosecution for their involvement? The following Article suggests that their fate implicates some of the deepest questions of criminal law theory and that resolution of the debate requires a fundamental reorientation of the most important areas of justifications and excuses. First, the debate about torture has been overly focused on justifications for torture. This can be explained in part by …

The Role Of Ethics Audits In Improving Management Systems And Practices: An Empirical Examination Of Management-Based Regulation Of Law Firms, Susan Saab Fortney

Faculty Scholarship

For decades, legal malpractice experts have urged lawyers to implement risk management measures. To assist law firms in doing so, legal malpractice insurers have provided audit services and self-audit materials. Under the Australian regulatory regime, incorporated legal practices are required to complete a self-assessment process and to report on the firm's compliance with ten objectives of sound law practice. Using management-based principles, this Article discusses steps to take to encourage ethics audits "to merge good ethics and good business" in the U.S.

Lost In The Weeds Of Pot Law: The Role Of Ethics In The Movement To Legalize Marijuana, Helia Garrido Hull

Faculty Scholarship

No abstract provided.

Stein Center For Law And Ethics Annual Report 2013 To 2014, Sherri Levine

Annual Reports

No abstract provided.

Defending The Guilty: Lawyer Ethics In The Movies, J. Thomas Sullivan

Missouri Law Review

For many, Attorney Atticus Finch’s (Gregory Peck) representation of an innocent African-American accused of rape by a Southern white woman in Depression-era Alabama by the town’s most imposing citizen, in To Kill a Mockingbird, represents the consummate portrayal of the lawyer’s discharge of his ethical duty to his client. Tom Robinson (Brock Peters) is falsely accused of rape by Mayella Violet Ewell (Collin Wilcox), the daughter of a lower-class, white bigot, Bob Ewell (James Anderson), who caught her at tempting to physically seduce Robinson, an African-American. The Ewells, clearly influenced by the father’s racial hatred, address Mayella’s unacceptable sexual appetite …

Why Lawyers Do What They Do (When Behaving Ethically), James E. Moliterno

Scholarly Articles

Since the early 1990s, when David Wilkins published his influential paper “Who Should Govern Lawyers” in the Harvard Law Review, legal ethics scholars and professors have paid attention to the range of processes and devices that govern lawyer behavior. This Article will report on the results of a study currently underway that seeks to provide empirical evidence to answer the question posed in this Article’s title: Do lawyers train staff in confidentiality preservation because they fear bar discipline? Because they fear malpractice liability? Because they must comply with malpractice liability carrier demands? Because they honor client confidences for their own …

A First Step Toward Resolution Of The Physical Evidence Dilemma: State V. Green, John Randall Trahan

John Randall Trahan

No abstract provided.

Attorney Conflicts Of Interest: The Need For A Coherent Framework, Mark I. Steinberg, Timothy U. Sharpe

Notre Dame Law Review

No abstract provided.

Debt-Buyer Lawsuits And Inaccurate Data, Peter A. Holland

Faculty Scholarship

Pursuant to secret purchase and sale agreements (also known as forward flow agreements), the accounts that banks sell to debt buyers are often sold “as is,” with explicit and emphatic disclaimers that the debts may not be owed, the amounts claimed may not be accurate, and documentation may be missing. Despite their full knowledge that the accuracy and completeness of the data has been specifically disclaimed by the bank, when they sue consumers, debt buyers tell courts that the information obtained from the bank is inherently reliable and accurate. In order to avoid a fraud on the courts, the contents …

Professional Responsibility For Catholic Lawyers: The Judgment Of Conscience, Robert J. Muise

Notre Dame Law Review

No abstract provided.

On Teaching Legal Ethics In The Law Office, Thomas L. Shaffer

Notre Dame Law Review

No abstract provided.

Debt-Buyer Lawsuits And Inaccurate Data, Peter A. Holland

Peter A. Holland

Pursuant to secret purchase and sale agreements (also known as forward flow agreements), the accounts that banks sell to debt buyers are often sold “as is,” with explicit and emphatic disclaimers that the debts may not be owed, the amounts claimed may not be accurate, and documentation may be missing. Despite their full knowledge that the accuracy and completeness of the data has been specifically disclaimed by the bank, when they sue consumers, debt buyers tell courts that the information obtained from the bank is inherently reliable and accurate. In order to avoid a fraud on the courts, the contents …

Michael J. Sandel, What Money Can't Buy: The Moral Limits Of Markets, Maurice Stucke

Scholarly Works

No abstract provided.

Person Or A Lawyer, Benjamin Allison

Notre Dame Law Review

No abstract provided.

Why U.S. Jurisdictions Should Adopt ‘Regulatory Objectives’ For The Legal Profession, Laurel S. Terry

Howard Lichtenstein Distinguished Professorship in Legal Ethics Lectures

As a Lichtenstein Distinguished Lecturer, Professor Terry was asked to write an article for the Hofstra Law Review. Her article, cited below, may be downloaded from the link at the top of the page.

Laurel S. Terry, Globalization and the ABA Commission on Ethics 20/20: Reflections on Missed Opportunities and the Road Not Taken, 43 Hofstra L. Rev. 95 (2014)

The ABA Commission on Ethics 20/20 was established in order to “perform a thorough review of the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation in the context of advances in technology and global …

The Ethical Obligations Of Defence Counsel In Sexual Assault Cases, Elaine Craig

Osgoode Hall Law Journal

The treatment of sexual assault complainants by defence counsel has been the site of significant debate for legal ethicists. Even those with the strongest commitment to the ethics of zealous advocacy struggle with how to approach the cross-examination of sexual assault complainants. One of the most contentious issues in this debate pertains to the use of bias, stereotype and discriminatory tactics to advance one’s client’s position. This paper focuses on the professional responsibilities defence lawyers bear in sexual assault cases. Its central claim is as follows: Defence counsel are ethically obligated to restrict their carriage of a sexual assault case …

Lost And Found - David Hoffman And The History Of American Legal Ethics, Michael S. Ariens

Faculty CLE

David Hoffman was a successful Baltimore lawyer who wrote the first study of American law in 1817 and authored the first maxims of American legal ethics. Yet for more than a century after his death, Hoffman was a forgotten figure to American lawyers. Beginning in the late 1970s, Hoffman was re-discovered, and his writings on legal ethics have been favorably cited.

How and why was Hoffman “lost” to American law for over a century, and why he was “found”? Hoffman was lost to history because his view of ethics was premised on republican virtue, specifically the concept of honor. A …

Legal Ethics As A Moral Idea: A Theory Of Philosophical Legal Ethics Based On The Work Of Lon Fuller, Emanuel Raul Tucsa

LLM Theses

The legal philosophy of Lon Fuller, both in his idea of internal morality and in his theory of legal interpretation, is particularly useful for the purpose of making sense of the relationship between law and morality vis-à-vis the legal profession. Legal ethicists have recently developed accounts of legal ethics that are based on jurisprudential theories. These include the exclusive positivist theory of Tim Dare, the inclusive positivist approach of Bradley Wendel, and the substantive contextual judgment view of William Simon. Additionally, David Luban has proposed and evaluated an insightful interpretation of Fuller’s legal philosophy.

In this paper, I will argue …

Lawyers Beware: You Are What You Post - The Case For Integrating Cultural Competence, Legal Ethics, And Social Media, Jan L. Jacobowitz

Articles

No abstract provided.

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

Leslie C. Levin

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 …

Ethics 20/20 Successfully Achieved Its Mission: It "Protected, Preserved, And Maintained", James E. Moliterno

Scholarly Articles

The legal profession tends to look inward and backward when faced with crisis and uncertainty. The legal profession could make greater advances by looking outward and forward to find in society and culture the causes of and connections with the legal profession’s crises. Doing so would allow the profession to grow with society, solve problems with rather than against the flow of society, and be more attuned to the society the profession claims to serve.

Mindful Ethics-A Pedagogical And Practical Approach To Teaching Legal Ethics, Developing Professional Identity, And Encouraging Civility, Jan L. Jacobowitz, Scott Rogers

St. Mary's Journal on Legal Malpractice & Ethics

Aristotle spoke of virtue and ethics as a combination of practical wisdom and habituation—an individual must learn from the application of critical reasoning skills to experience. Perhaps one of the earliest proclamations of the value of experiential learning, the Aristotelian view, reappears throughout history and is captured once again by the Carnegie Foundation’s Report on Legal Education, which includes a call for instruction that provides practical skills and ethical grounding to complement the teaching of legal analysis. The Carnegie Report continues to play a role in the ongoing discussion of the need to reform legal education; a debate that is …

Disqualifying Defense Counsel: The Curse Of The Sixth Amendment, Keith Swisher

St. Mary's Journal on Legal Malpractice & Ethics

Lawyer disqualification—the process of ejecting a conflicted lawyer, firm, or agency from a case—is fairly routine and well-mapped in civil litigation. In criminal cases, however, there is an added ingredient: the Sixth Amendment. Gideon, which is celebrating its fiftieth anniversary, effectively added this ingredient to disqualification analysis involving indigent state defendants although it already existed in essence for both federal defendants and defendants with the wherewithal to retain counsel. Once a defendant is entitled to counsel, the many questions that follow include whether and to what extent conflicts of interest—or other misconduct—render that counsel constitutionally ineffective. Most cases and commentary …

Ethics Issues In Representing Intergovernmental Entities, Hugh D. Spitzer

Articles

The creation and operation of intergovernmental entities raise special professional responsibility issues for the lawyers involved in the formation and the long-term activities of multi-governmental bodies. It is particularly important for attorneys to pay attention to conflicts of interest that arise from giving simultaneous assistance to several governments, or from representing one entity in negotiations with other governments the attorney or firm represents. This paper briefly reviews various categories of interlocal entities in Washington State, as an example. It points out the distinctly different dynamics during the formation period and the operations period of an intergovernmental body. It then analyzes …

"Nudging" Better Lawyer Behavior: Using Default Rules And Incentives To Change Behavior In Law Firms, Nancy B. Rapoport

Scholarly Works

This article examines how incentives in law firms can affect lawyer behavior and suggests some possible changes to incentive structures and default rules that might improve the ethical behavior of lawyers.

In the changing landscape of law practice — where law firm profits are threatened by such changes as increased pressure from clients to economize and the concomitant opportunities for clients to shop around for the most efficient lawyers — are there ways to change how things are done in law firms so that firms can provide more efficient and ethical service? This article suggests that an understanding of cognitive …

The Client Who Did Too Much, Nancy B. Rapoport

Scholarly Works

Using Hitchcock's MacGuffin as a theme, I discuss the dynamics between client and lawyer when the client so obsesses over the issue driving him that he persuades (or attempts to persuade) the lawyer to do things that are inadvisable from the lawyer's point of view.

Future Claimants And The Quest For Global Peace, Rhonda Wasserman

Articles

n the mass tort context, the defendant typically seeks to resolve all of the claims against it in one fell swoop. But the defendant’s interest in global peace is often unattainable in cases involving future claimants – those individuals who have already been exposed to a toxic material or defective product, but whose injuries have not yet manifested sufficiently to support a claim or motivate them to pursue it. The class action vehicle cannot be used because it is impossible to provide reasonable notice and adequate representation to future claimants. Likewise, non-class aggregate settlements cannot be deployed because future claimants …

Gideon And The Effective Assistance Of Counsel: The Rhetoric And The Reality, David Rudovsky

All Faculty Scholarship

There is general agreement that the “promise” of Gideon has been systematically denied to large numbers of criminal defendants. In some cases, no counsel is provided; in many others, excessive caseloads and lack of resources prevent appointed counsel from providing effective assistance. Public defenders are forced to violate their ethical obligations by excessive case assignments that make it impossible for them to practice law in accordance with professional standards, to say nothing of Sixth Amendment commands. This worsening situation is caused by the failure of governmental bodies to properly fund indigent defense services and by the refusal of courts to …

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 …

Indie Lawyering: A New Model For Solo And Small Firm Practice, Lucille Jewel

Scholarly Works

Indie lawyering is a new style of lawyering that uses technology to connect the individual practitioner with individual clients and collaboratively solve legal problems in a community-centered way.