Law Commons^™

Trump, Lawyer Regulation, And The Institutional Double Bind, Benjamin H. Barton

Scholarly Works

Scandals, news stories, and court setbacks that would have devastated other, more traditional Presidents have seemingly only made Donald Trump’s bond with his supporters stronger. This creates a challenge when institutions try to punish anyone in Trump’s orbit. Taking action against Trump only encourages his supporters, while inaction may lessen the left’s faith in institutions and leave opponents of President Trump wondering why nothing is being done to curtail what they see as flagrant criminal contempt. This is a problem the author calls the “institutional double bind.” This Essay discusses whether there is any solution for these institutions stuck in …

Gut Renovations: Using Critical And Comparative Rhetoric To Remodel How The Law Addresses Privilege And Power, Lucille Jewel

Scholarly Works

No abstract provided.

Gut Renovations: Using Critical And Comparative Rhetoric To Remodel How The Law Addresses Privilege And Power, Lucille Jewel, Elizabeth Berenguer, Teri Mcmurtry-Chubb

College of Law Faculty Scholarship

No abstract provided.

Of Wigs, Wickets, And Moonshine: Leadership Development Lessons From An International Collaboration, Douglas A. Blaze

Scholarly Works

No abstract provided.

Professional Responsibility In An Age Of Alternative Entities, Alternative Finance, And Alternative Facts, Joan Macleod Heminway

Scholarly Works

Business lawyers in the United States find little in the way of robust, tailored guidance in most applicable bodies of rules governing their professional conduct. The relative lack of professional responsibility and ethics guidance for these lawyers is particularly troubling in light of two formidable challenges in business law: legal change and complexity. Change and complexity arise from exciting developments in the industry that invite — even entice — the participation of business lawyers.

This essay offers current examples from three different areas of business law practice that involve change and complexity. They are labeled: “Alternative Entities,” “Alternative Finance,” and …

Attorneys, Document Discovery, And Discipline, Paula Schaefer

Scholarly Works

Despite the growing use of sanctions and recent amendments to the Federal Rules of Civil Procedure aimed at improving discovery practice, many lawyers continue to play fast and loose with the rules of discovery governing (paper and electronic) documents. Nonetheless, most lawyers never face discipline for their discovery misconduct. This article argues that federal courts could make more effective use of attorney discipline systems to improve document discovery in civil cases.

What will be effective depends on why discovery misconduct occurs. There are multiple reasons why lawyers may engage in such misconduct – from ignorance of the rules to intentional, …

In Search Of Effective Ethics & Compliance Programs, Maurice Stucke

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The U.S. Sentencing Commission's Organizational Guidelines for over twenty years have offered firms a significant financial incentive to develop an ethical organizational culture. Nonetheless, corporate crime persists. Too many ethics programs remain ineffective.

As this Article explores, the Guidelines' current approach is not working. The evidence, including sentencing data over the past twenty years, reveals that few firms have effective ethics and compliance programs. Nor is there much hope that the Guidelines' incentive will induce companies, after the economic crisis, to become more ethical.

The problem is not attributable to three assumptions underlying the Guidelines. The empirical research, while still …

Reasonable Accommodation As Professional Responsibility, Reasonable Accommodation As Professionalism, Alex B. Long

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The American legal profession has been slow to remove the barriers that exclude individuals with disabilities. As a result, people with disabilities remain underrepresented in the practice of law. While the Americans with Disabilities Act prohibits employment discrimination and requires employers to provide reasonable accommodations for employees with disabilities, there remain significant barriers to employment for lawyers with disabilities. This Article argues that the legal profession should view the legal requirements of reasonable accommodation and equal employment opportunities for lawyers with disabilities as fundamental components of professional responsibility and professionalism.

Professionalism And Matthew Shardlake, Alex B. Long

Scholarly Works

This Essay/Book Review examines the Matthew Shardlake series by C.J. Sansom. In particular, it examines the question of whether the sixteenth-century fictional lawyer Shardlake can serve as a role model for twenty-first-century lawyers, both in terms of his ethics and his professionalism. An examination of the Shardlake series as a whole yields some uncertain answers, both as to Shardlake and as to what it means to be an ethical and professional lawyer. This is ultimately part of what makes the series so enjoyable for lawyers.

I Can Has Lawyer? The Conflict Between The Participatory Culture Of The Internet And The Legal Profession, Lucille Jewel

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The Internet allows citizens to comment on public affairs with an amplified and unfiltered voice, creating an open, community-based culture where robust debate flourishes. However, many of the ideals and practices of participatory culture clash with the traditional legal culture as it exists in the United States. This cultural conflict can be seen in emerging narratives, in the form of web blogs and lawyer emails that go “viral,” in which lawyers comment on the lack of humanism within big law firm hiring and firing practices; expose the alienating work environments experienced by low-level contract attorneys; or criticize judges who show …

Attorney Deceit Statutes: Promoting Professionalism Through Criminal Prosecutions And Treble Damages, Alex B. Long

Scholarly Works

Unbeknownst to many lawyers, numerous jurisdictions - including New York and California - have statutes on the books that single out lawyers who engage in deceit or collusion. In nearly all of these jurisdictions, a lawyer found to have engaged in deceit or collusion faces criminal penalties and/or civil liability in the form of treble damages. Until recently, these attorney deceit statutes have languished in obscurity and, through a series of restrictive readings of the statutory language, have been rendered somewhat irrelevant. However, in 2009, the New York Court of Appeals breathed new life into New York’s attorney deceit statute …

Focusing Your Firm On Ethics, Alex B. Long

Scholarly Works

No abstract provided.

Unethical Protection? Model Rule 1.8(H) And Plan Releases Of Professional Liability, George Kuney

Scholarly Works

The American Bar Association’s Model Rules of Professional Conduct address the propriety of attorneys obtaining releases from their clients of either past claims or future claims against themselves. Under the applicable Model Rule, both types of releases require the involvement, or the opportunity for involvement, of independent counsel to review and advise the client on the issue.

Releases in chapter 11 plans typically cover insiders, members of the creditors’ committee, and the debtor’s and committee’s counsel. Few courts or disciplinary bodies of the various state bars have addressed the ethical issues that arise when counsel insert into a plan of …

Unethical Protection? Model Rule 1.8(H) And Plan Releases Of Professional Liability, George Kuney

College of Law Faculty Scholarship

The American Bar Association’s Model Rules of Professional Conduct address the propriety of attorneys obtaining releases from their clients of either past claims or future claims against themselves. Under the applicable Model Rule, both types of releases require the involvement, or the opportunity for involvement, of independent counsel to review and advise the client on the issue.Releases in chapter 11 plans typically cover insiders, members of the creditors’ committee, and the debtor’s and committee’s counsel. Few courts or disciplinary bodies of the various state bars have addressed the ethical issues that arise when counsel insert into a plan of reorganization …

Prosecutors "Doing Justice" Through Osmosis - Reminders To Encourage A Culture Of Cooperation, Melanie Wilson

Scholarly Works

Scholars have often criticized the government for relying on "cooperating" defendant/witnesses in obtaining convictions of other persons. Such scholars contend that cooperating witnesses are powerfully motivated to parrot information a prosecutor wants to hear and that as naturally biased advocates, prosecutors overlook and ignore signs that cooperating defendants are lying.

This article asserts that defendants who "cooperate" with the government by substantially assisting in the prosecution of other crimes and criminals in exchange for a hope of receiving a more lenient sentence are invaluable crime prevention tools and should be encouraged. Nevertheless, the article recognizes the inconsistent manner in which …

Finding A Happy And Ethical Medium Between A Prosecutor Who Believes The Defendant Didn't Do It And The Boss That Says That He Did, Melanie Wilson

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In June of 2008, The New York Times reported on a New York prosecutor’s conflict with his supervisors. The disagreement rested on the prosecutor’s belief that the District Attorney’s Office had wrongly convicted two men of a 1990 shooting. After thoroughly re-investigating the case, the prosecutor made a powerful pitch to his bosses that the men’s convictions “be dropped.” The supervisors disagreed and instructed the prosecutor to proceed with a hearing to oppose setting aside the convictions. The prosecutor complied with the directive but then “deliberately helped the other side win.”

This short thought piece proposes an ethical course of …

Does Sarbanes-Oxley Foster The Existence Of Ethical Executive Role Models In The Corporation?, Joan Macleod Heminway

Scholarly Works

If compliance with, or the efficacy of, Sarbanes-Oxley and other corporate governance initiatives requires that executives (or other firm leaders) be good ethical role models, then it is important to ask whether Sarbanes-Oxley - or any other attribute of existing corporate governance regulation - in fact promotes or permits the production or preservation of ethical role models in the executive ranks of public companies. An absence of support for ethical role models in public companies may signal the failure of broad-based federal corporate governance initiatives like Sarbanes-Oxley.

This Article assumes that ethical roles models may be important to the maintenance …

Morality And Antitrust, Maurice Stucke

Scholarly Works

Although the Sherman Act was enacted over a century ago, antitrust enforcers, policy makers, and scholars have largely circumvented the morality of antitrust crimes. Its absence is remarkable given the vigorous debate over the appropriate civil and criminal penalties for antitrust violations. Under the continued influence of the Chicago-school's neoclassical economic theories, antitrust analysis is primarily concerned with economic efficiency. Since terms like morality and evil are judgmental, not descriptive, they are deemed outside the discourse of economic theory's self-described positivism. But antitrust analysis is not beyond the judgmental. Over the past thirty years, while antitrust's civil remedies have remained …

Attorney Liability For Tortious Interference: Interference With Contractual Relations Or Interference With The Practice Of Law?, Alex B. Long

Scholarly Works

Allowing individuals to bring tortious interference claims against opposing attorneys for conduct occurring during the representation of a client and that lies close to the core of what it means to practice law presents courts with particularly challenging policy choices. The defendant-attorney's conduct in such cases may involve the filing of a lawsuit, pre-trial settlement strategy, the use of the rules regarding conflicts of interest to disqualify opposing counsel, and questionable trial tactics. The primary concern with permitting interference claims in this context is the potential for such claims to chill legitimate advocacy. However, if properly defined, interference claims, and …