Law Commons^™

Model Rule 8.4(G) And The Profession’S Core Values Problem, Michael Ariens

St. Mary's Journal on Legal Malpractice & Ethics

Model Rule 8.4(g) declares it misconduct for a lawyer to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” The American Bar Association (ABA) adopted the rule in 2016 in large part to effectuate the third of its four mission goals: Eliminate Bias and Enhance Diversity. The ABA adopted these goals in 2008, and they continue to serve as ABA’s statement of its mission.

A …

Punishing The Victim: Model Rule 1.16(A)(2) And Its Relation To Lawyers With Anxiety, Depression, And Bipolar Disorder, Daniel G. Esquivel

St. Mary's Journal on Legal Malpractice & Ethics

Abstract forthcoming.

Better Briefs, Lydia Fearing

St. Mary's Journal on Legal Malpractice & Ethics

Abstract forthcoming

Redefining Roles And Duties Of The Transactional Lawyer: A Narrative Approach, Lori D. Johnson

Scholarly Works

Today’s transactional lawyers perform myriad tasks for their clients, including structuring, drafting, conceptualizing, negotiating, and executing the complex, risky, and often cutting-edge transactions their clients bring to the table. On the other side of that table, often sits another team of sophisticated transactional lawyers. These opposing counsel are armed for battle over every nuance, every word, every representation, every deliverable, and every obligation their client is poised to undertake or agree to. Therefore, modern transactional lawyers must behave as advocates and explore new modes of persuasion. As a response, scholars have begun to propose that transactional lawyers employ methods of …

The Ethics Of Non-Traditional Contract Drafting, Lori D. Johnson

Scholarly Works

A new generation of contract drafters faces increasing commentary advising them to change traditional contract terms into plain language constructions. Yet, traditional, tested terms have consistent meanings, and when these meanings benefit client objectives, advocates should consider retaining them. This article posits that failing to do so can impact a lawyer’s ethical obligations. Specifically, an attorney’s duties of competence, allocation of authority, diligence, and communication under the Model Rules of Professional Conduct require careful thought about modernizing tested contract terms. These duties require the ethical drafter to research whether the use of a traditional, tested term advances a client goal …

Representing Children And Youth, Donald N. Duquette, Ann M. Haralambie

Book Chapters

The role of the child's attorney is unique in American jurisprudence and not yet clearly defined by law or tradition. There is an emerging consensus, however, that children in dependency cases should have lawyers and those lawyers should be as active and as involved in their cases as are lawyers for any other party in any other litigation. Although state law and policy makers differ as to what voice the child should have in determining the direction and goals of the litigation, that is, whether the child's lawyer should represent the best interests of the child as determined by the …

In-House Risk, Eli Wald

Sturm College of Law: Faculty Scholarship

Over the last thirty years or so, as the number of in-house counsel rose and their role increased in scope and prominence, increased attention has been given the various challenges these lawyers face under the ABA Model Rules of Professional Conduct, from figuring out who is the client the in-house lawyer represents, to navigating conflicts of interest, maintaining independence, and engaging in a multijurisdictional practice of law. Less attention, to date, has been given to business risk assessment, perhaps in part because that function appears to be part of in-house counsel’s role as a business person rather than as a …

The Attorney As Advocate And Witness: Does The Prohibition Of An Attorney Acting As Advocate And Witness At A Judicial Trial Also Apply In Administrative Adjudications?, Arnold Rochvarg

Journal of the National Association of Administrative Law Judiciary

It is generally accepted that an attorney who is representing a client at a judicial trial is not permitted to also be a witness at the same trial. This prohibition on an attorney acting as both an advocate and a witness at a trial appears in every state's rules of professional conduct. This rule, often referred to as the “lawyer as witness” rule, has application in attorney disciplinary proceedings, rulings on the admissibility of evidence, motions seeking disqualification of an attorney who intends to testify, legal malpractice cases, and petitions for the award of attorney's fees. The lawyer as witness …

Regulating The Behavior Of Lawyers In Mass Individual Representations: A Call For Reform., Richard Zitrin

St. Mary's Journal on Legal Malpractice & Ethics

Cases in which lawyers represent large numbers of individual plaintiffs are increasingly common. While these cases have some of the indicia of class actions, they are not class actions, usually because there are no common damages, but rather individual representations on a mass scale. Current ethics rules do not provide adequate guidance for even the most ethical lawyers. The absence of sufficiently flexible, practical ethical rules has become an open invitation for less-ethical attorneys to abuse, often severely, the mass-representation problem. It is necessary to reform the current rules, but only with a solution that is both practical and attainable, …

The Duty To Advise The Lorax: Environmental Advocacy And The Risk Of Reform, Keith W. Rizzardi

William & Mary Environmental Law and Policy Review

Lawyers have an ethical duty to advise their clients on moral, economic, social, and political matters. When applied to the changing field of environmental law, this abstract notion becomes provocative. Lawyers should advise their environmental advocacy clients of the possibility that their efforts to apply statutes or rules might initially succeed, but subsequent legislative reactions might defund, reform, or repeal the laws the client’s case relied upon. As a client’s sophistication decreases, or as the risk of adverse reactions to the client’s environmental advocacy increases, the lawyer’s duty to advise the client of these risks can shift from discretionary to …

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 …

Professional Responsibility For The Pro Se Attorney., Margaret Raymond

St. Mary's Journal on Legal Malpractice & Ethics

This Article considers how pro se lawyers should be treated under the law of professional responsibility. While courts have addressed whether various aspects of the law of lawyering should be applied to lawyers acting pro se, they have not done so systematically. The Article first demonstrates that the law is not consistent in its treatment of pro se lawyers. It then argues that a purpose-based approach to the issue provides a consistent, rational, and reproducible way to analyze the question. It concludes that whether a particular rule of professional responsibility should apply to a pro se lawyer should be driven …

Religious Rules: The Judeo-Christian Nature Of The Aba Model Rules And What It Means For The Legal Profession, Sarah Montana Hart

Sarah Montana Hart

This article argues that the American Bar Association Model Rules of Professional Conduct are not only biased in favor of Judeo-Christian biblical values, but actually are religious rules based in the Bible. The religious nature of the Model Rules affects lawyers in several different ways. There must be awareness of and a conscious choice about the nature and effects that these rules have on law students, bar applicants, and practicing lawyers.

Teaching Public Citizen Lawyering: From Aspiration To Inspiration, Mae Quinn

Journal Articles

A longtime social justice activist and clinical professor, Douglas Colbert,2 recently sought information from colleagues across the country3 for the second part of an important project examining a lawyer’s ethical obligation to engage in pro bono work during a time of crisis, such as the aftermath of Hurricane Katrina or 9/11.4 He sent out surveys to learn which schools actually taught the Preamble to the ABA Model Rules of Professional Conduct in ethics or other courses.5 As Professor Colbert’s letter explained, the Preamble states: “A lawyer, as a member of the legal profession, is a representative of clients, an officer …

Representing Children And Youth, Donald N. Duquette, Ann M. Haralambie

Book Chapters

The role of the child's attorney is unique in American jurisprudence and not yet clearly defined by law or tradition. There is a growing consensus, however, that children in dependency cases should have lawyers who are as active and as involved in their cases as are lawyers for any other party in any other litigation. Yet there continues to be confusion and debate over the role and duties of the lawyer, particularly as to what voice the child should have in determining the direction and goals of the litigation. Policy makers have differed as to whether the child's lawyer should …

Soft-Core Perjury, Leonard M. Niehoff

Articles

Despite its greater pervasiveness, however, soft-core perjury has generated considerably less discussion and debate than hard-core perjury has. There are reasons for this, but they are not good ones. Indeed, we might summarize the matter this way: Lawyers tend to dismiss the soft-core perjury problem because they do not see it as a problem. They do not see it as an ethical problem, and they do not see it as a practical problem. They are wrong on both counts.

The idea that soft-core perjury poses no ethical problem comes from the view that the lawyer's dilemma-or trilemma, if you will-arises …

Private Practice And Cause Lawyering: A Practical And Ethical Guide, Bettina E. Brownstein

University of Arkansas at Little Rock Law Review

No abstract provided.

The Ethics Of E-Mail, Thomas E. Spahn

Richmond Journal of Law & Technology

In many ways, communicating by e-mail and other forms of electronic transmission reflects a fundamentally different way of human interaction. Historians eventually will put this in perspective, but one could easily conclude that e-mails are essentially a “third way” for people to communicate.

Patent-Holding Patent Attorneys: Conflicts Of Interests, Confidentiality, And Employment Issues Comment., Ashley R. Presson

St. Mary's Law Journal

Patents are grants issued by the United States Patent and Trademark Office (USPTO) which confer upon the holder, the patentee, patent rights to such intellectual property as inventions, technologies, and processes. Patent rights include the right to exclude others from “making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States.” Once the USTPO has granted a patent, the inventor may market the product. Patentees who do not have the funds or time to market the product may profit by conveying the legal rights conferred by the patent to other …

Representing Children And Youth, Donald N. Duquette, Marvin Ventrell

Book Chapters

Quality legal representation of all parties is essential to a high-functioning dependency court process. Quality legal representation of children in particular is essential in obtaining good outcomes for children. An adversarial court process that depends on competing independent advocacy to provide information will not produce good outcomes for litigants who lack competent advocates. Dependency court decisions are as good as the information on which the decisions are based. In order to promote the welfare of children in dependency court, therefore, children must be provided with competent independent legal representation.

Lawyers As "Tattletales": A Challenge To The Broad Application Of The Attorney-Client Privilege And Rule 1.6, Confidentiality Of Information, David Green

Georgia State University Law Review

No abstract provided.

Legal And Professional Ethics: The Regulation Of Ancillaries And Law-Related Services Reaches Oklahoma, D. Kencade Babb

Oklahoma Law Review

No abstract provided.

Legal And Professional Ethics: Protection Of Client Identity, Rebecca Wood Hunter

Oklahoma Law Review

No abstract provided.

Lawyer Disclosure To Prevent Death Or Bodily Injury: A New Look At Spaulding V. Zimmerman, Roger C. Cramton

Cornell Law Faculty Publications

No abstract provided.

Professional Secrecy And Its Exceptions: Spaulding V. Zimmerman Revisited, Roger C. Cramton, Lori P. Knowles

Cornell Law Faculty Publications

No abstract provided.

Lawyers And Butlers: The Remains Of Amoral Ethics, W. Bradley Wendel

Cornell Law Faculty Publications

No abstract provided.

An Essay On The Regulation Of The Legal Profession And The Future Of Lawyer's Characters, Patrick L. Baude

Indiana Law Journal

No abstract provided.