Law Commons^™

The Ethical Limits Of Discrediting The Truthful Witness: How Modern Ethics Rules Fail To Prevent Truthful Witnesses From Being Discredited Through Unethical Means, Todd A. Berger

Marquette Law Review

Whether the criminal defense attorney may ethically discredit the truthful witness on cross-examination and later during closing argument has long been an area of controversy in legal ethics. The vast majority of scholarly discussion on this important ethical dilemma has examined it in the abstract, focusing on the defense attorney’s dual roles in a criminal justice system that is dedicated to searching for the truth while simultaneously requiring zealous advocacy even for the guiltiest of defendants. Unlike these previous works, this particular Article explores this dilemma from the perspective of the techniques that criminal defense attorney’s use on cross-examination and …

The Wild Mid-West: Missouri Ethics And Campaign Finance Under A Narrowed Corruption Regime, Dan Schnurbusch

Missouri Law Review

This Note explores some of the history of Missouri’s attempts at ethics reform, recent developments in Missouri’s ethics legislation and federal First Amendment jurisprudence, and how these issues commingle to produce a dangerous climate in which to operate a representative democracy. This Note confronts some of the Supreme Court’s conclusions in both Citizens United and McCutcheon, exposes some of the deleterious societal and legal effects of these rulings, and provides some possible courses of action that Missouri and other states might undertake in order to help lay the groundwork for upholding meaningful campaign finance regulation in the future.

Table Of Contents: Annual Survey 2015

University of Richmond Law Review

No abstract provided.

Twenty Seconds To Comply: Autonomous Weapon Systems And The Recognition Of Surrender, Robert Sparrow

International Law Studies

Would it be ethical to deploy autonomous weapon systems (AWS) if they were unable to reliably recognize when enemy forces had surrendered? I suggest that an inability to reliably recognize surrender would not prohibit the ethical deployment of AWS where there was a limited window of opportunity for targets to surrender between the launch of the AWS and its impact. However, the operations of AWS with a high degree of autonomy and/or long periods of time between release and impact are likely to remain controversial until they have the capacity to reliably recognize surrender.

Judicial Interpretation Of State Ethics Rules Under The Mcdade Amendment: Do Federal Or State Courts Get The Last Word?, Hopi Costello

Fordham Law Review

The McDade Amendment ("the Act") is a federal law that requires federal prosecutors to abide by the state ethics rules of the jurisdiction in which they practice. The Act does not say, however, whether federal or state courts are definitive when it comes to interpreting state ethics rules as they apply to federal prosecutors. Those testifying before Congress raised this issue and noted that the Act left the issue unresolved. Despite this, Congress did not address this matter in either its legislative history or in the Act itself. No court has tackled this question and scholarship attends to it only …

“Because That's Where The Money Is”: A Theory Of Corporate Legal Compliance, William C. Bradford

The Journal of Business, Entrepreneurship & the Law

The study and regulation of firms per se as agents of compliance may be misguided. Firms are abstractions that exist only in the legal, and not the natural, sense, and, as such, utterly lack decisional capacity. Firms do not decide whether to comply with law; people, specifically officers who exercise decisional authority on their behalf, do. Any theory that would explain or predict firm compliance must account for the individual level of analysis. However, most corporate legal compliance research minimizes the salience of personality. Accordingly, Part II traces associations between personalities of CEOs and firm compliance with obligations arising under …

Illinois Lawyer Investigations Of Current Client Concerns, Jeffrey A. Parness

Northern Illinois University Law Review

When questions are raised by a current client regarding an attorney’s representation of the client, the questioned attorney should be able to seek counsel confidentially. Such a conferral will often benefit the attorney, the firm and the client. Advice regarding questioned conduct should be encouraged, not discouraged. To prompt such conferrals, an attorney-client communication and a work product privilege should be available in Illinois, with availability not dependent upon whether in-house, outside or other attorneys are sought for counsel. While early federal precedents were split, increasingly under other state high court precedents the attorney-client communication privilege is available. Its recognition …

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 …

The American Inns Of Court: Preparing Our Students For Ethical Practice, Joryn Jenkins

Akron Law Review

Despite the recognition of the merit and effectiveness of the American Inns of Court concept, and despite the rapid growth of this burgeoning movement, and despite the intrinsic involvement of over one thousand law students and of nearly one hundred law schools affiliated with Inns across the country, many legal educators are unaware of the Inns' existence, purpose, possibilities, and successes. Why should this ignorance be remedied?

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, …

The Legal Status Of Charter Schools In State Statutory Law, Preston C. Green Iii, Bruce D. Baker, Joseph O. Oluwole

University of Massachusetts Law Review

Given the recent increase in charter schools as an alternative to the traditional public education system, this Article explores the legal status and position of charter schools. Charter schools exhibit many characteristics of private schools, particularly in terms of management, but also retain many public school features. Thus, this Article explores areas of the law where charter schools were either classified as public or private in terms of state statutes or regulations, discussing recent and some pending litigation. First, this Article discusses whether charter schools, charter school boards and officials, or educational management organizations which manage charter schools are entitled …

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 …

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.

The Attorney General As Lawyer (?): Confidentiality Upon Resignation From Cabinet, Andrew Flavelle Martin

Dalhousie Law Journal

The unique role of the attorney general raises several special issues oflegal ethics. This paper addresses one previously unaddressed: whether it is appropriate for the attorney general to publicly announce his or her reasons for resighing from Cabinet. Unlike other ministers, the attorney general is almost always a practicing lawyer and thus bound not only by Cabinet solidarity and Cabinet confidentiality, but also by the lawyer's professional duty of confidentiality and by solicitor-client privilege. The paper begins by canvassing a hierarchy ofreasons for a principled resignation and the rare historical examples where these have occurred. It then turns to the …