Law Commons^™

To Write Or Not To Write: The Ethics Of Judicial Writings And Publishing, Nick Badgerow, Michael Hoeflich, Sarah Schmitz

St. Mary's Journal on Legal Malpractice & Ethics

Judges are bound by the Model Code of Judicial Conduct promulgated by the American Bar Association and adopted most states, including the federal judiciary. Within these rules governing judicial conduct, Judges owe duties to the public and to their calling, to be (and appear to be) objective, fair, judicious, and independent. When judges venture into the realm of extrajudicial writing—in the form of fiction novels, short stories, legal books, children’s books, and the like—they must consider the ethical bounds of that expression. The Model Code of Judicial Conduct imposes five main constraints upon extrajudicial writings: (a) a judge may not …

Can They Handle The Truth? Teaching Law Students Ethics During A Time Of A Societal And Generational Divide, Michele N. Struffolino

St. Mary's Journal on Legal Malpractice & Ethics

Today’s law students and aspiring law students will enter law school having been bombarded with the message that they, as members of the voting public, are victims of “The Big Lie.” They likely also know that “The Big Lie” story consistently sent by politicians, activists, and others through all forms of informational outlets, including traditional and nontraditional media sources, has been found to be unsupported by facts. For legal educators, this is particularly concerning because many of those sending and supporting “The Big Lie” story are lawyers. Aspiring lawyers are left with the impression that zealous representation is relatively boundless …

Mitigation Reports In Capital Cases: Legal And Ethical Issues, Russell Stetler, W. Bradley Wendel

St. Mary's Journal on Legal Malpractice & Ethics

The mitigation investigation that is essential in every capital case requires a multidisciplinary team. The duty to conduct this investigation is clearly established federal law, as well as an ethical obligation of counsel. The mitigation evidence that is uncovered is of vital importance to the rights of the individual accused of a capital offense, but also to reliable outcomes since all decisionmakers—including prosecutors, jurors, and judges—need the most complete and accurate picture of the person facing the punishment of last resort. This Article discusses some of the unique legal and ethical issues affecting the documentation of this investigation. The Authors …

6th Annual Stonewall Lecture 2-2-2023, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Changemakers: Master Of Studies In Law: "Exactly What I Needed...": John Marion, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Bioethics: Ethical Considerations Of Ventilator Triage During A Pandemic, Susannah J. Gleason, William J. Keegan

Georgia State University Law Review

In the midst of the COVID-19 pandemic, hospitals across the country faced unprecedented volumes of patients seeking treatment related to the respiratory complications of the virus. As a result, states were forced to reassess existing scarce resource allocation guidelines to appropriately accommodate the high demand. This Peach Sheet analyzes the ethical considerations implicated in enacting and following these guidelines when treating patients, specifically in the context of ventilator triage in response to the COVID-19 pandemic.

As The Role Of The Driver Changes With Autonomous Vehicle Technology, So, Too, Must The Law Change, Nanci K. Carr

St. Mary's Law Journal

Getting a driver’s license is a highly anticipated rite of passage for most teenagers. Being alone behind the wheel, in control of a 3,000-pound machine, is an honor, a privilege, and a sign of adult responsibility. How will that change when driver’s licenses become licenses “to cause technology to engage” with the increased use of autonomous cars? Will driver’s education courses, with their focus on safety rules and defensive driving techniques, be eliminated if all a vehicle operator needs to do is push a button and the vehicle does the rest? While arguably autonomous cars are safer, they will not …

Restraints In Massachusetts Public Schools, Elyce Hall

Master’s Theses and Projects

The purpose of this research study was to investigate the moral and legal issues around physically restraining students in Massachusetts public schools. As Massachusetts law is written, the use of restraints on a student should be the last possible resort. However, this thesis used data on restraint use from the Massachusetts Department of Education and a survey of school administrators to gain a better understanding of the 38,994 student restraints that were used in 2016-2017 school year. Findings of this study include that Hispanic and African-American students were more likely to attend schools that used restraints than those that did …

Ethical Considerations For Prosecutors: How Recent Advancements Have Changed The Face Of Prosecution, Joshua L. Sandoval

St. Mary's Journal on Legal Malpractice & Ethics

The prosecutor acts as a minister of justice with sweeping discretion to charge an individual with a crime, plea a case in a manner supported by the strength of the evidence, proceed to trial on a case, and even dismiss a case. He must balance the interest of the victim, the community, and the constitutional rights of the accused in every decision he makes.

This article will explore the role of the American prosecutor and discuss various ethical issues encountered on a daily basis. After a brief introduction, the author will succinctly discuss the history of the prosecutor and will …

Prosecutorial Discretion: The Difficulty And Necessity Of Public Inquiry, Bruce A. Green

Dickinson Law Review (2017-Present)

Prosecutors’ discretionary decisions have enormous impact on individuals and communities. Often, prosecutors exercise their vast power and discretion in questionable ways. This Article argues that, to encourage prosecutors to use their power wisely and not abusively, there is a need for more informed public discussion of prosecutorial discretion, particularly with regard to prosecutors’ discretionary decisions about whether to bring criminal charges and which charges to bring. But the Article also highlights two reasons why informed public discussion is difficult—first, because public and professional expectations about how prosecutors should use their power are vague; and, second, because, particularly in individual cases, …

The Ethical (Or Not So Ethical) Story Behind Your Bar Of Chocolate: The Untold Tale Of A Distressed Ghanaian Farmer, Nadia Ayensah

Augustana Center for the Study of Ethics Essay Contest

In a time where the ethics of business dealings have become a key factor in the likelihood of the success of that venture due to globalization, it is important to start considering those ventures that are so popular, but whose inner working are rarely heard of. This paper analyzes the history and process of cocoa production in Ghana. It looks at the status quo with regards to the social and economic standing of Ghanaian Cocoa farmers as opposed to the earnings made by cocoa processing companies. With the statistics derived, the paper then considers who is to take responsibility for …

Breaking The Silence: Holding Texas Lawyers Accountable For Sexual Harassment, Savannah Files

St. Mary's Journal on Legal Malpractice & Ethics

Following the 2017 exposure of Harvey Weinstein, the #MeToo movement spread rapidly across social media platforms calling for increased awareness of the prevalence of sexual harassment and assault and demanding change. The widespread use of the hashtag brought attention to the issue and successfully facilitated a much-needed discussion in today’s society. However, this is not the first incident prompting a demand for change.

Efforts to bring awareness and exact change in regards to sexual harassment in the legal profession date back to the 1990s. This demonstrates that the legal profession is not immune from these issues. In fact, at least …

Ethical Cannabis Lawyering In California, Francis J. Mootz Iii

St. Mary's Journal on Legal Malpractice & Ethics

Cannabis has a long history in the United States. Originally, doctors and pharmacists used cannabis for a variety of purposes. After the Mexican Revolution led to widespread migration from Mexico to the United States, many Americans responded by associating this influx of foreigners with the use of cannabis, and thereby racializing and stigmatizing the drug. After the collapse of prohibition, the federal government repurposed its enormous enforcement bureaucracy to address the perceived problem of cannabis, despite the opposition of the American Medical Association to this new prohibition. Ultimately, both the states and the federal government classified cannabis as a dangerous …

The Texas Standards For Appellate Conduct: An Annotated Guide And Commentary, Gina M. Benavides, Joshua J. Caldwell

St. Mary's Journal on Legal Malpractice & Ethics

The legal profession is bound by ethical rules that govern and guide our conduct and actions as lawyers. One of the under-appreciated, but profoundly important set of guidelines is the Texas Standards for Appellate Conduct. These Standards serve as an excellent practice guide for appellate practitioners and appellate courts and as a model code of conduct for the Bar as a whole.

The goal of this Article is to dissect the Texas Standards for Appellate Conduct and provide useful commentaries for the readers to better appreciate and understand each element of the Standards. The commentaries provide direct case examples and …

Causation And "Legal Certainty" In Legal Malpractice Law, Vincent R. Johnson

St. Mary's Journal on Legal Malpractice & Ethics

A line of California cases holds that causation of damages in legal malpractice actions must be proven with “legal certainty.” This Article argues that judicial references to legal certainty are ambiguous and threaten to undermine the fairness of legal malpractice litigation as a means for resolving lawyer-client disputes. Courts should eschew the language of legal certainty and plainly state that damages are recoverable if a legal malpractice plaintiff proves, by a preponderance of the evidence, that those losses were factually and proximately caused by the defendant’s breach of duty.

A Status Update For Texas Voir Dire: Advocating For Pre-Trial Internet Investigation Of Prospective Jurors, Luke A. Harle

St. Mary's Law Journal

The Internet provides trial attorneys an additional tool to investigate the backgrounds of prospective jurors during voir dire. Online searches of a person’s name and social media accounts can reveal information that could be used as grounds for a challenge for cause or to facilitate intelligent use of peremptory strikes. Texas lawmakers have not yet provided any official guidance as to whether attorneys can investigate prospective jurors online or how they might do so, should it be allowed. Texas’s current voir dire structure, judicial opinions, and ethics opinions, together, support the notion that Texas trial attorneys should be given opportunities …

The Limited Duties Of Lawyers To Protect The Funds And Property Of Nonclients, Vincent R. Johnson

St. Mary's Journal on Legal Malpractice & Ethics

Issues arise daily in law practice about the duties owed by lawyers to nonclients with respect to funds or property entrusted to them. In resolving those issues, care must be exercised when interpreting state versions of Model Rule 1.15, the American Bar Association’s pattern ethics rule on safekeeping of funds and property. Otherwise, a lawyer’s duties to third persons may too readily encroach on the performance of obligations owed to clients, as well as on the legitimate interests of lawyers themselves.

As numerous authorities have recognized, lawyers are obliged to protect the property interests of third persons only if they …

It’S A Trap! The Ethical Dark Side Of Requests For Admission, Colin Flora

St. Mary's Journal on Legal Malpractice & Ethics

Due largely to an overlap of authority between disciplinary bodies charged with supervising the professional conduct of attorneys and the authority of courts to supervise litigation, the ethical ramifications of routine discovery abuses often pass without comment. That is because disciplinary authorities routinely defer to courts to police litigation behavior despite courts frequently rejecting the role of enforcers of professional rules. A further contributing factor to unethical conduct becoming routine practice in discovery are ill-defined parameters and a dearth of guidance. One tool in particular, requests for admission, has gone overlooked in the literature and caselaw, but poses unique ethical …

The Italian Agreement Between The Government And The Regional Authorities: National Guidelines For Aai And Institutional Context, Martina Simonato, Marta De Santis, Laura Contalbrigo, Daniele Benedetti, Elisabetta Finocchi Mahne, Vincenzo Ugo Santucci, Silvio Borrello, Luca Farina

People and Animals: The International Journal of Research and Practice

Animal-assisted interventions (AAI) have developed considerably in the last half century, prompting various private and public realities dealing with AAI worldwide to work on and establish standards and best practice. However, AAI are still far from being regulated harmoniously. In this context, Italy offers a unique example at world level: here the spread of AAI has set in motion an ethical and legal reflection that led to the creation of the Italian National Reference Centre for AAI (NRC AAI) by ministerial decree in 2009 and the approval of National Guidelines for AAI in 2015. The Italian legislation on AAI is …

Constitutionalizing Ethics, Bennett L. Gershman

Pace Law Review

The purpose of this essay is not to weigh in the wisdom or utility in revising New York’s Constitution. However, in my opinion, one of the most compelling reasons to amend New York’s Constitution is the need to incorporate into the fundamental charter a meaningful code of ethics, including procedures for its enforcement, and sanctions for violations. New York over the past fifteen years has experienced more scandals, criminal prosecutions, and convictions of lawmakers and other government officials for corruption than any state in the nation. It is certainly arguable that the extent of New York’s corruption, and the widespread …

The Ambulance Chasing Epidemic In Texas, Ronald Rodriguez

St. Mary's Journal on Legal Malpractice & Ethics

Barratry and solicitation of professional employment is illegal and unethical. The Texas Disciplinary Rules of Professional Conduct define barratry as ethical misconduct and a serious crime. Unfortunately, for citizens and law-abiding attorneys of Texas, the criminal and ethical prohibitions against barratry have rarely been enforced. Consequently, barratry continues to proliferate rapidly throughout South Texas. For lawyers who engage in this unethical practice, the potential for large financial gain proves irresistible given the virtually nonexistent risk of prosecution. The lack of robust and successful prosecutions has created an optimal environment for barratry to proliferate. This Article discusses the current barratry epidemic …

Conflicts Of Interest For Former Law Firm Clerks Turned Lawyers, Daniel Haley

St. Mary's Journal on Legal Malpractice & Ethics

There is no consensus for how the legal profession should treat a lawyer who has a conflict that arises from their time working as a law clerk while in law school. The majority of states allow a lawyer to be screened from participation if there is a conflict that arises from work they performed while still in law school. Nonetheless, not all states have adopted the Model Rules, and not all states that have adopted them accept and apply their rules uniformly. Clerkships are beneficial to both the student and the potential employer, and to limit these educational experiences due …

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 …

Further Developments In Land Use Ethics, Patricia E. Salkin, Darren Stakey

Patricia E. Salkin

Ethical considerations continue to play a fundamental role in shaping the course of land use and developmental regulatory proceedings throughout the country. From an innocuous donation by one public official to his alma mater, to the outright bribery of a former mayor, the past year has been rife with a range of conduct implicating professional responsibility and land use.

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 …

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 …

Recent Developments In Land Use Ethics, Patricia E. Salkin

Patricia E. Salkin

Current events across the country reveal no shortage of allegations of unethical conduct in the land use review process. Sadly, there are countless other media accounts of alleged and proven conflicts of interest and other ethical misconduct. In this annual review of reported decisions involving ethics in land use, recent decisions are discussed in the hopes that municipal attorneys will use this information as the basis of ongoing training for members of planning boards, zoning boards, and local legislative bodies who must be routinely reminded of not only their legal but ethical responsibilities in upholding the public trust.

Police Misconduct - A Plaintiff's Point Of View, Fred Brewington

Touro Law Review

No abstract provided.

Criminal Prosecution And Section 1983, Barry C. Scheck

Touro Law Review

No abstract provided.

Problems Concerning Litigating Custom And Practice Cases, Steve Ryals

Touro Law Review

No abstract provided.