Law Commons^™

The Moral Lawyer And The Machiavellian Nature Of Law Practice, David Barnhizer

David Barnhizer

In Western culture the name Niccolo Machiavelli has become Machiavellianism, a pejorative signifying the willingness to do anything to achieve desired ends. American lawyers do have limits, however, and are expected to operate according to an ethical code that is at least intended to prevent the worst abuses. The effectiveness of this ethical code has often been questioned, as have the questionable efforts of the organized bar to enforce its rules, but on the surface it differentiates law practice from hand-to-hand combat and military struggles. Even though I have sometimes used the concepts of the warrior lawyer, the general and …

Judicial Rhetoric & Lawyers' Roles, Samuel J. Levine

Samuel J. Levine

Notwithstanding the rich scholarly literature debating the proper roles of lawyers and the precise contours of lawyers’ ethical conduct, as a descriptive matter, the American legal system operates as an adversarial system, premised in part upon clear demarcations between the functions of different lawyers within the system. Broadly speaking, prosecutors have the distinct role of serving justice, which includes the duty to try to convict criminal defendants who are deserving of punishment, in a way that is consistent with both substantive and procedural justice. In contrast, private attorneys have a duty to zealously represent the best interests of their clients, …

Ethical Issues In Business And The Lawyer's Role, Robert Rhee, Carol Morgan, Tamar Frankel, Mark Fagan

Robert Rhee

The remarks by Professor Rhee "The Stand Alone Course Approach to Teaching Business Ethics," Professor Morgan "Teaching Business Ethics in Transactional Skills Courses: An Integrated Approach," and Professors Tamar Frankel and Mark Fagan "Teaching Business Ethics: A Collaborative Approach" were made at the conference on "Transactional Education: What's Next?" held at Emory University School of Law, June 4, 2010.

Session One: Limits On Misleading Conduct, Thomas Zlaket, William Reece Smith Jr., Nathan Crystal, Amy R. Mashburn

Amy R. Mashburn

A Transcript Featuring the Honorable Thomas Zlaket, Wm. Reece Smith, Jr., Esq., Professor Nathan Crystal, and Professor Amy Mashburn, Moderator from the symposium - Ethical Issues in Settlement Negotiations, Session One: Limits on Misleading Conduct.

Military Professionals As Guardians Of The Republic: The Hidden Promise Of Huntington’S The Soldier And The State, Robert E. Atkinson Jr.

Robert E. Atkinson Jr.

This paper is the first step in developing a neo-classical theory of the military officer corps as a functionalist profession. It unpacks the central paradox of Samuel P. Huntington’s The Soldier and the State: Why does an account that begins with a call for a highly professionalized officer corps to obey the orders of any legally legitimate civilian regime end with the promise that humanity can achieve both security and redemption if all the nations of the world adopt core military values? How can “militarize the military,” Huntington’s solution to the classical question of civilian/ military relations – Plato’s …

Sex And The Attorney-Client Relationship: An Argument For A Prophylactic Rule, Nancy E. Goldberg

Akron Law Review

In this paper, I argue that the initiation of sexual contact during the tenure of an attorney-client relationship is unethical and should be explicitly proscribed by the rules governing professional conduct. Although such behavior may be implicitly prohibited by existing disciplinary provisions, I advocate the promulgation of a bright line rule. Drawing such a line is required by reasons similar to those applicable in the medical profession. Additional rationales exist as well, which are unique to the legal profession.

Furthermore, the focus of this paper is on sexual relationships arising after the attorney-client relationship has begun. Representation of a client …

Was Machiavelli Right? Lying In Negotiation And The Art Of Defensive Self-Help, Peter Reilly

Peter R. Reilly

The majority of law review articles addressing lying and deception in negotiation have argued, in one form or another, that liars and deceivers could be successfully reined in and controlled if only the applicable ethics rules were strengthened, and if corresponding enforcement powers were sufficiently beefed up and effectively executed. This article takes a different approach, arguing that the applicable ethics rules will likely never be strengthened, and, furthermore, that even if they were, they would be difficult to enforce in any meaningful way, at least in the context of negotiation. The article concludes that lawyers, businesspeople, and everyone else …

Systematically Thinking About Law Firm Ethics: Conference On The Ethical Infrastructure And Culture Of Law Firms, Susan Saab Fortney

Susan S. Fortney

To advance the discourse related to law firm ethics and the impact of formal controls and informal influences on lawyer conduct, we convened on April 5, 2013 the Conference on the Ethical Infrastructure and Culture of Law Firms ("Conference" or "Symposium"). The Conference, conducted under the auspices of the Hofstra Law Review and the Maurice A. Deane School of Law at Hofstra University's Institute for the Study of Legal Ethics, was funded in part by the Abraham J. Gross '78 Conference and Lecture Fund at the Maurice A. Deane School of Law at Hofstra University. Experts who have studied issues …

I Don't Have Time To Be Ethical: Addressing The Effects Of Billable Hour Pressure, Susan Saab Fortney

Susan S. Fortney

This article discusses the unintended consequences of the billable hour derby and suggests changes to address the deleterious effects of increasing billable hour requirements. A brief introduction identifies law firms’ recent tendency to increase the billable hour requirements to fund the heightened salaries of associates. This article analyzes the results from an empirical study focused on the effects of billable hour expectations and firm cultures. Part I generally reviews the study findings. Part II discusses the work and report of the ABA Commission, while Part III indentifies those issues and approaches that the ABA and firm managers should explore. Recognizing …

Ethics Counsel's Role In Combating The "Ostrich" Tendency, Susan Saab Fortney

Susan S. Fortney

This article focuses on ethics problems related to hourly billing by analyzing the results of a survey of 1000 randomly selected associates in Texas firms who (1) had been licensed for ten or fewer years as of June 1999, and (2) worked in private law firms with more than ten attorneys (the Associate Survey). This article addresses the need for firm managers to clarify how and what their attorneys should bill. The article reports the results from the Associate Survey relating to billing guidance and ethics systems. From the empirical data, the article identifies a need for supervising attorneys to …

What Should Law School Student Conduct Codes Do?, Steven K. Berenson

Akron Law Review

Adopting a regulatory function as the primary goal of a law school code seems appropriate. In light of that goal, this article next attempted to present the broad outlines of a code that would serve that goal. Such a code would provide for an initial investigatory phase regarding alleged code violations, with students playing the key role in this and subsequent phases of the process under the code, in order to determine that only meritorious allegations be pursued...Perhaps in light of the possible objectives of a law school code discussed in the beginning of this article, the ultimate objectives advocated …

Why Lawyers Are Different And Why We Are The Same: Creating Structural Incentives In Large Law Firms To Promote Ethical Behavior - In-House Ethics Counsel, Bill Padding, And In-House Ethics Training, Ronald D. Rotunda

Akron Law Review

In many ways, lawyers are different than other people. In other ways, we are, sadly, so much the same. What we often call “legal ethics” or “professional responsibility” is the law governing the practice of law. This law serves to make us different, but our compliance with it struggles against the fact that we are not born different: we struggle with the same demons as other mortals, and like them, we learn to rationalize our failings. And, when we believe that no one is looking, when we are anonymous, we are more likely to rationalize. The structure of the large, …

Not The City Of God: The Multiplicity Of Wrongs And Rules, Geoffrey C. Hazard Jr.

Akron Law Review

The message I seek to transmit is a cautionary observation, perhaps a complaint, about prevailing method of analysis of ethical issues, including the subcategory of ethics that consists of law. The prevailing method is patterned on the experimental technique in scientific analysis. I want to suggest that the method is inadequate for dealing satisfactorily with real world ethical and legal problems, and indeed can distort analysis and often lead to unsound conclusions.

Professional Responsibility In An Uncertain Profession: Legal Ethics In China, Judith A. Mcmorrow

Akron Law Review

This essay starts with two simple questions: Why do law schools in China have so little discussion of legal ethics? Why do students not press or seek more discussion of this topic? The essay then looks at the creation of norms of legal ethics from a topdown perspective and the inadequacy of that approach. Both a bottomup and top-down examination identify the tremendous challenges facing the Chinese emerging legal culture in building a coherent model of lawyering that can serve as the foundation for a system of legal ethics. This essay is intended as a contribution to the growing English …

Supervising Offshore Outsourcing Of Legal Services In A Global Environment: Re-Examining Current Ethical Standards, Mark L. Tuft

Akron Law Review

There are many forms of legal outsourcing that range from outsourcing administrative and support functions to outsourcing legal and law-related services domestically and abroad to ―offshoring,‖ in which a firm relocates certain legal and law-related services to a foreign jurisdiction that allows the firm to realize greater efficiency and lower costs. The question is whether a distinction between the duty of supervision over the work of foreign lawyers and domestic lawyers will continue to be valid in the changing global legal environment and whether the ethical obligations under the current rules for partners, managers, and supervisory lawyers in the traditional …

Inside, Outside: Cross-Border Enforcement Of Attorney Advertising Restrictions, Margaret Raymond

Akron Law Review

The question that motivated this paper was three-fold: whether states can regulate this type of cross-border advertising, whether they do, and whether they should...If a state wants to regulate advertising, it wants to regulate all advertising that the state‘s consumers will see, regardless of where it originated or where the lawyers who engaged in it are admitted to practice. Enforcement accordingly advances the interests that are assertedly served by attorney advertising restrictions. A failure to enforce restrictive rules against out-of-state lawyers, by contrast, has a somewhat counterintuitive result.

The Legal Ethics Of Metadata Mining, Andrew M. Perlman

Akron Law Review

Bar associations have produced a number of legal ethics opinions that address the practice of metadata mining. This essay explains the nature of the problem, reviews the ethics opinions that have addressed it, and contends that the issue is simply a variation of the oft-examined problem of inadvertently disclosed documents. The essay concludes that flat bans on metadata mining are misguided and that metadata mining should be treated in the same manner as inadvertent disclosures more generally. Under this approach, if a state permits lawyers to review inadvertently disclosed privileged documents, the jurisdiction should also permit lawyers to review the …

Exporting American Legal Ethics, James E. Moliterno

Akron Law Review

Over the past decade or so, a massive exportation of U.S. lawyer ethics law, primarily to emerging democracies, has been taking place. The exportation has been managed largely, but not exclusively, by ABA Rule of Law programs, funded extensively by grants from USAID. Excellent work is being done by these programs and nothing in this essay should be read to suggest that these projects lack value. But in one respect, the work of these and other such projects is sometimes tinged with cultural imperialism...The large-scale adoption of U.S. models of lawyer and judge regulation outside the United States is likely …

Multijurisdictional Practice And The Influence Of Model Rule Of Professional Conduct 5.5 - An Interim Assessment, Arthur F. Greenbaum

Akron Law Review

In this piece I examine the influence of Model Rule 5.5 on the law of multijurisdictional practice in the states by lawyers licensed in the United States who are not working in-house for an organizational client. In doing so, I do not intend to revisit the debate on what lines should be drawn, if any, to control multijurisdictional practice. Those issues have been well debated in the adoption of the Restatement (Third) of the Law Governing Lawyers, the deliberations of the Commission on Multijurisdictional Practice,15 consideration surrounding state implementation initiatives, and voluminous commentary. Instead, I want to explore the impact …

Sports And Entertainment Agents And Agent-Attorneys: Discourses And Conventions Concerning Crossing Jurisdictional And Professional Borders, David S. Caudill

Akron Law Review

Questions regarding the ethical obligations, pitfalls, and dilemmas facing attorneys who become sports or entertainment agents are not new. However, despite a substantial discourse on the topic, the sense persists that being both a lawyer and an agent is problematic. The applicable laws, including ethical regulations, seem to be clear, but are subject not only to law‟s usual jurisdictional variations and interpretive instability, but also to the mediation of conventions or tacit understandings that pervade the sports and entertainment industries.

Lawyers' Professional Independence: Overrated Or Undervalued?, Bruce A. Green

Akron Law Review

This article grows out of a presentation on November 9, 2012, as part of the Distinguished Lecture Series of the Akron Law Joseph G. Miller and William C. Becker Center for Professional Responsibility. This article begins with some reflections on the principal meanings of professional independence, as that term is conventionally employed. Part II discusses the bar’s collective independence to regulate its members. Part III discusses individual lawyers’ independence in the context of professional representations, including independence from clients, on one hand, and independence from third parties, on the other. Part IV then suggests that there is a meaning of …

What It Means To Be A Lawyer In These Uncertain Times: Some Thoughts On Ethical Participation In The Legal Education Industry, Susan Carle

Akron Law Review

I will first take a quick look in Part II at the basic data regarding employment statistics for recent law school graduates. This is the primary source of concern cited by those who argue that legal education is in profound crisis. What those statistics show, in a nutshell, is that large law firm hiring is down, but that small firm hiring is up by even more significant amounts, and that salaries for employed graduates continue to rise. What also continues to rise is the new law graduate unemployment rate, though not by the exaggerated dimensions some reports imply. New lawyers …

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

Akron Law Review

The profession, it turns out, serves the status quo in multiple ways. At times, serving the status quo means making significant changes that will fend off outsiders or cultural change. At other times, serving the status quo means doing as little as possible in the vain hope that change will pass the profession by as if it were a bad dream rendered irrelevant by the morning light. In either event, the profession loses. Change comes and washes over the profession’s walls. The profession began to organize in earnest in the 1870s as state and local bar associations sprang up. For …

What Are Lawyers For?, Daniel Markovits

Akron Law Review

What are lawyers for? What social purposes do lawyers serve? What functions underwrite the special obligations and entitlements that accompany the lawyer’s professional role? I shall try to sketch an answer to these questions, at least with respect to lawyers who function as litigators, in adjudication. The answer will surprise many. Lawyers, I shall argue, do not serve truth or justice, and should not seek them. Instead, lawyers serve to legitimate

Tomorrow, And Tomorrow, And Tomorrow: Ethics 20/20 Amidst A Changing Profession, Thomas Ross

Akron Law Review

In Part II of this paper, I will sketch briefly my sense of some of the important ways in which the practice of law seems to be evolving. Part III will revisit the work of the Ethics 20/20 Commission and suggest that the posture of the Commission and of the ABA elite in this initiative has been essentially one of accommodation and facilitation, rather than an oppositional stance. I will briefly note a historical instance of the organized bar taking such an oppositional stance and offer some hypotheses about why the organized bar has chosen these two different postures in …

Real Metamorphosis Or More Of The Same: Navigating The Practice Of Law In The Wake Of Ethics 20/20 - Globalization, New Technologies, And What It Means To Be A Lawyer In These Uncertain Times, Jack P. Sahl

Akron Law Review

On April 4 and 5, 2013, The University of Akron School of Law’s Miller-Becker Center for Professional Responsibility (“MBC”) hosted the symposium, Navigating the Practice of Law in the Wake of Ethics 20/20 – Globalization, New Technologies, and What It Means to Be a Lawyer in These Uncertain Times (Ethics 20/20 – Uncertain Times). The symposium examined the myriad of changes and problems confronting the bar, legal education, and the courts. Although law schools, courts, and the organized bar have provided a steady supply of programs addressing the recent changes confronting the profession and legal education, Ethics 20/20 – Uncertain …

Resolving The Conflict Between Fiduciary Duties And Socially Responsible Investing, William Sanders

Pace Law Review

Part I of this Article clarifies and strictly defines the frequently nebulous idea of socially responsible investing (“SRI”), explaining its history, trends, and current status. To give perspective and perhaps temper hype, Part II discusses the efficacy of SRI as a method of change, concluding that while SRI may not have much effect on air quality or oppressive foreign governments, there are situations where SRI is useful and even necessary. Part III looks at the conflict between SRI and the fiduciary duties of trustees, investment advisers, and broker-dealers. It shows the contractual nature of fiduciary duties and why this is …

The Management And Stewardship Of A Cetacean Collection, Rebecca Vele

Seton Hall University Dissertations and Theses (ETDs)

Cetacean, by definition, is a marine mammal of the order Cetacea; a whale, dolphin or porpoise. In light of their social intellect and friendly appearance, cetaceans are used in institutions such as zoos and aquariums as a source of education and entertainment for the public. Before the Marine Mammal Protection Act of 1972, cetaceans were captured worldwide including in U.S. waters. In the United States today, there are over 224 zoos and aquariums accredited by the Association of Zoos and Aquariums. Out of those 224, 34 of these institutions display cetaceans.

Even though the Marine Mammal Protection Act “Prohibits, with …

Time, Ethics And Experience: Review Of David O. Brink's Prospects For Temporal Neutrality, Pedja Ilic

Themis: Research Journal of Justice Studies and Forensic Science

Are temporal locations of harms and benefits important to human existence? Conventional wisdom unambiguously suggests so, albeit interpretations of various dogmatic texts and beliefs. Discussions about pain, grief, and suffering are commonly favored within past temporal settings, unlike those of happiness, comfort, and wellbeing that permeate conversations with future temporal locales. Past pain is preferred to future pain, even when this choice includes more total pain (Callender, 2011). Should these positive and negative qualifiers that constitute conscious existence have privileged temporal locations? This ethical question, like many others surrounding temporality, inherits both theoretical and pragmatic inquiries - becoming indispensable within …

Defining The Role Of Law Guardian In New York State By Statute, Standards And Case Law, Diane Somberg

Touro Law Review

No abstract provided.