Law Commons^™

Am I A “Licensed Liar”?: An Exploration Into The Ethic Of Honesty In Lawyering . . . And A Reply Of “No!” To The Stranger In The La Fiesta Lounge, Josiah M. Daniel Iii

St. Mary's Journal on Legal Malpractice & Ethics

After hearing for the first time the lawyer-disparaging phrase, “licensed liar,” the author investigated its significance. This article presents the question of those two words’ meaning and explains how the author reached the conclusion that, as applied to attorneys, the phrase is an unmerited epithet. The phrase is known and utilized in nonlegal texts in fields such as fiction, poetry, literary criticism, and journalism, but the two words are absent from legal texts. The author’s discovery of the phrase in various criticisms of lawyers in other publications illuminates and confirms that the phrase constitutes the pejorative allegation that an attorney …

The Impact Of Technological Developments On The Rules Of Attorney Ethics Regarding Attorney–Client Privilege, Confidentiality, And Social Media, Pamela A. Bresnahan, Lucian T. Pera

St. Mary's Journal on Legal Malpractice & Ethics

This article focuses on the development of the law of ethics and technology. Emphasis is placed on how technological developments have affected the rules and means by which lawyers practice law and certain ethical pitfalls that have developed hand-in-hand with technological advancements. Topics examined include: (1) the ways by which electronic communication has increased the potential for the attorney–client privilege to be waived and the resulting impact on the present-day practice of law; (2) the effect of social media on lawyers’ ethical obligations, including counseling clients regarding the client’s use of social media and the lawyer’s own use of social …

Responding To Judicial And Lawyer Misconduct: Analyzing A Survey Of State Trial Court Judges, Peter M. Koelling

St. Mary's Journal on Legal Malpractice & Ethics

While reported cases or incidents may give us insight into the interpretation of Rule 2.15 of the Model Code of Judicial Conduct, they do not give us a sense of how often judges undertake the obligation to act under the rule. The Judicial Division of the American Bar Association developed a survey to explore the interpretation and the implementation of Rule 2.15 of the Model Code of Judicial Conduct, and to determine how and in what manner state trial court judges responded to ethical violations by lawyers and other judges. The survey looked back over a ten-year period and was …

Navigating Some Deep And Troubled Jurisprudential Waters: Lawyer–Expert Witnesses And The Twin Dangers Of Disguised Testimony And Disguised Advocacy, W. William Hodes

St. Mary's Journal on Legal Malpractice & Ethics

Expert testimony is indispensable to the uniquely American system of adversary justice. Without the assistance of expert witnesses with specialized knowledge, based on either science or experience and practice, jury verdicts would often be the result of pure whim and prejudice, or random and arbitrary decision-making. At the same time, the use of compensated, partisan expert witnesses poses significant dangers to the fair and just determination of disputes. This Article examines the enhanced dangers that can appear when the expert witness is a lawyer, chiefly the pervasive use of “disguised testimony” and “disguised advocacy.” The Article concludes with some suggestions …

Can Courts Require Civil Conduct?, Justice Douglas S. Lang, Haleigh Jones

St. Mary's Journal on Legal Malpractice & Ethics

There is considerable controversy on the question of whether courts can require civil conduct by lawyers, not just in Texas but across the country. To answer that question, it must be determined whether lawyer civility is at least impliedly part of the court and disciplinary rules or whether “civility” is only part of the professionalism creeds and merely “aspirational.” This Article attempts to answer this by discussing three viewpoints on enforcing civility. Further, it argues for honest recognition of the multitude of concerns about incivility and asserts that the legal profession must cultivate an increase in the spirit of civility …

Weathering The Worst Storm: How Attorneys Might Successfully Defend Their Reputation Against Attack From The Bench, Giel Stein

St. Mary's Journal on Legal Malpractice & Ethics

Based on the author’s personal experience with a judicial referral to a professional responsibility authority, this Essay offers lawyers a strategy to emerge from such an ordeal undisciplined. The essence of the strategy, which can be applied to a bar authority referral from any source, is to treat the process of defending oneself under such circumstances as a negotiation with bar authority counsel. The benefits of approaching such referrals as a negotiation and following the advice of Robert Fisher and William Ury about the importance of preparation, active listening, separating the people from the problem, and being hard on the …

Legal Marketing Through The Decades: Pitfalls Of Current Marketing Trends, Tanya M. Marcum, Elizabeth A. Campbell

St. Mary's Journal on Legal Malpractice & Ethics

Historically, states did not place restrictions on advertising by professionals; it was not until the beginning of the twentieth century that jurisdictions began to enact prohibitions on marketing of professional services. Eventually, the U.S. Supreme Court recognized the right of professionals to advertise their services and has continued to define the right in the decades since. While lawyers have long advertised in traditional media, such as billboards and television, thanks to the exploding popularity of social media websites like Facebook and Twitter, the available platforms lawyers may use to market their services will continue to multiply.

New and creative approaches …

Clearing The Smoke: The Ethics Of Multistate Legal Practice For Recreational Marijuana Dispensaries, Eric Mitchell Schumann

St. Mary's Journal on Legal Malpractice & Ethics

With many firms practicing in multiple states, a lawyer could represent a marijuana dispensary in a legalized state while practicing in a state, like Texas, which continues to criminalize the drug. This raises a question of whether Texas attorneys who make the bold attempt to assist a company that sells marijuana violate the rules of professional responsibility.

In Section II, this Comment examines the background of the criminalization of marijuana and looks into the movement to liberalize the laws surrounding it. Section III analyzes the rules of professional conduct in Texas and in Colorado to determine what a lawyer in …

Avoiding Grievances: 25 Things You Can Do, David Bright

St. Mary's Journal on Legal Malpractice & Ethics

Despite the high probability lawyers face of having grievances filed against them, there are best practices a lawyer can follow to lower the risk of facing a charge. The purpose of this Essay is to identify the most common situations that give rise to grievances against conscientious, skilled lawyers; to suggest ways that those lawyers can avoid grievances; and to suggest a sensible approach for practitioners facing a grievance.

An Analysis Of Austin Lawyers Guild V. Securus Technologies, Inc.: The Constitutional And Ethical Implications Of Using Illegally Recorded Attorney–Client Telephone Conversations As Derivative Evidence, Christina Santos

St. Mary's Journal on Legal Malpractice & Ethics

For the justice system to operate effectively, privileged communications between an attorney and his or her client should be afforded the utmost and strictest protections. Intrusion by law enforcement upon these communications severely diminishes the confidence and candor needed in the attorney-client relationship. Although the United States Supreme Court recognizes prosecutorial immunity and generally leaves prosecutorial discipline to state bar authorities, the Court has long held that the attorney-client privilege is needed for attorneys to effectively advocate on behalf of their clients.

Austin Lawyers Guild v. Securus Technologies, Inc., a civil class-action lawsuit, is currently pending before the United …

Personal Jurisdiction In Legal Malpractice Litigation, Cassandra Burke Robertson

St. Mary's Journal on Legal Malpractice & Ethics

Lawyers are increasingly engaging in multi-jurisdictional practice—and their representation is increasingly giving rise to cross­-jurisdictional malpractice actions. Over the years, courts have issued divergent and contradictory opinions about whether out-of-state attorneys representing clients only on out-of-state matters can constitutionally be subject to personal jurisdiction in the client’s home state. The Supreme Court’s recent opinions in Daimler v. Bauman and Walden v. Fiore do little to settle this question and, in fact, may raise more questions than they answer. Nevertheless, the Supreme Court’s new personal jurisdiction jurisprudence offers an opportunity for courts to adopt a more cohesive analysis of personal jurisdiction …

Everyone Makes Mistakes: Attorney's Fee Recovery In Legal Malpractice Suits, Sande L. Buhai

St. Mary's Journal on Legal Malpractice & Ethics

This Article argues that the American Rule should be changed for legal malpractice suits because the attorney–client relationship is the quintessential fiduciary relationship and because of the added concern of unequal information available to each party as a result of the large disparity in power. Attorneys must abide by ethical rules and owe fiduciary duties to their clients, which include the duties of competence, diligence, and loyalty. Because it is this very relationship that distinguishes legal malpractice suits from an ordinary lawsuit, awarding attorney’s fees to the damaged plaintiff client helps maintain fiduciary relationships and furthers the interests of justice. …

Use Of Expunged Records In Attorney-Disciplinary Proceedings, Roland D. Ramos

St. Mary's Journal on Legal Malpractice & Ethics

The Texas Supreme Court’s decision in In re State Bar of Texas should be modified. In In re State Bar of Texas, the Court allowed the use of a criminal defendant’s expunged records in a subsequent disciplinary proceeding against his attorney. Allowing the use of expunged records for any purpose violates Texas law. For example, under the Texas Code of Criminal Procedure, it is an offense to knowingly release or use expunged records for any reason, unless a court’s final expunction order permits the expunged records to be retained for future use or if a defendant waives his or …

The Rise And Fall Of Social Trustee Professionalism, Michael Ariens

Faculty Articles

Elite lawyers have long urged the private practice bar to account for the interests of more than their clients in their work. A lawyer who served merely as a "mouthpiece" or "hired gun" of clients failed to meet the standards of professionalism, of failing to act, in Roscoe Pound's words, "in the spirit of a public service." Pound's view, expressed in the mid-20th century, was premised on the ideal that the lawyer pursued a public calling that incidentally was remunerative. This ideal required the lawyer to serve as a social trustee, one encumbered by duties for the benefit of society. …

In Memory Of Thomas Bowman Black (1928–2016), Professor Of Law, St. Mary's University School Of Law (1974–1988), David Dittfurth

St. Mary's Law Journal

Tribute to Thomas Bowman Black (1928–2016), Professor of Law, St. Mary's University School of Law (1974–1988).