Law Commons^™

Lawyers As Caregivers, Paula Schaefer

St. Mary's Journal on Legal Malpractice & Ethics

This Article argues that clients—much like patients in a healthcare setting—need their lawyers to be caregivers. The Article opens by developing a definition of caregiving in medicine and law. It then turns to five key components of caregiving in medicine, explaining the substantial research that this care is crucial for patient satisfaction, trust, and healing. Medical educators have drawn on this research to better prepare medical professionals to be excellent caregivers. The Article then explores the evidence that an attorney’s clients have the same needs and suffer similar harm when attorneys fail to meet these needs. Next, the Article turns …

Judged By The (Digital) Company You Keep: Maintaining Judicial Ethics In An Age Of Likes, Shares, And Follows, John Browning

St. Mary's Journal on Legal Malpractice & Ethics

Just like lawyers, judicial use of social media can present ethical pitfalls. And while most scholarly attention has focused on either active social media conduct by judges (such as posting or tweeting) or on social media “friendships” between judges and others, this Article analyses the ethical dimensions of seemingly benign judicial conduct on social media platforms, such as following a third party or “liking,” sharing, or retweeting the online posts of others. Using real-world examples, this Article analyses how even such ostensibly benign conduct can create the appearance of impropriety and undermine public confidence in the integrity and impartiality of …

Patients, Corporate Attorneys, And Moral Obligations, Ioan-Radu Motoarcă

St. Mary's Journal on Legal Malpractice & Ethics

There are two main questions that any account of corporate lawyers’ moral obligations needs to answer: (1) Do corporate lawyers have moral obligations to third parties? and (2) In cases of conflict between obligations to the corporation and obligations to third parties, which should prevail? This Article offers answers to these questions in the context of lawyers working in medical corporations. I argue that lawyers do have moral obligations to third parties, and that in cases where patients’ rights are being violated by a medical company, patients’ rights should prevail. Consequently, attorney–client confidentiality rules should be relaxed to allow for …

The Sale Of Law Practice In Texas: The Need For A Rule, Ryan Hagens

St. Mary's Journal on Legal Malpractice & Ethics

Abstract forthcoming.

Ethical Limits On Promising To Pay An Adverse Award Of Attorney’S Fees Against One’S Client, Chase C. Parsons

St. Mary's Journal on Legal Malpractice & Ethics

Abstract forthcoming.

Chief Loophole Officer Or Chief Legal Officer: Inside Lehman Brothers—A Film Case Study About Corporate And Legal Ethics, Garrick Apollon

St. Mary's Journal on Legal Malpractice & Ethics

This Article discusses the continuing legal education (CLE) visual advocacy documentary-style program, which Garrick Apollon (author of this Article) researched and developed. The case study for this CLE documentary-style program is the film Inside Lehman Brothers—a documentary film by Jennifer Deschamps which chronicles the story of the Lehman whistleblowers. The film presents Mathew Lee, former senior vice president overseeing Lehman’s global balance sheet; Oliver Budde, former in-house counsel (associate general counsel) of the Lehman Brothers; and the racialized female mid-tier manager whistleblowers, who all paid a steep price in the 2008 American subprime mortgage crisis, while many of the …

Lawyers, Mistakes, And Moral Growth, Vincent R. Johnson

St. Mary's Journal on Legal Malpractice & Ethics

Vincent R. Johnson, professor at St. Mary's University School of Law in San Antonio, Texas, reviews The Man in the Ditch: A Redemption Story for Today by Dallas attorney Mike H. Bassett.

Toward More Robust Self-Regulation Within The Legal Profession, Veronica Root Martinez, Caitlin-Jean Juricic

Faculty Scholarship

The Trump Administration left reverberations throughout American life, and the legal profession was not insulated from its impact. The conduct of lawyers—both public and private—working on behalf of former President Trump was the subject of constant conversation and critique. The reality, however, is that the questions regarding the conduct of the Trump Administration lawyers, are rooted, in part, in more fundamental questions about the appropriate role of the lawyer within society. This Essay advocates for the adoption of a self-regulation scheme whereby lawyers regulate and oversee the conduct of other lawyers, to ensure that members of the legal profession are …

Ethical Duty To Investigate Your Client?, Peter A. Joy

St. Mary's Journal on Legal Malpractice & Ethics

Lawyers have been implicated in corporate scandals and other client crimes or frauds all too often, and the complicity of some lawyers is troubling both to the public and to members of the legal profession. This is especially true when the crime involved is money laundering. As a response to attorney involvement in crimes or frauds, some legal commentators have called for changes to the ethics rules to require lawyers to investigate their clients and client transactions under some circumstances rather than remaining “consciously” or “willfully” blind to what may be illegal or fraudulent conduct. The commentators argue that such …

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 …

“Listserv Lawyering”: Definition And Exploration Of Its Utility In Representation Of Consumer Debtors In Bankruptcy And In Law Practice Generally, Josiah M. Daniel Iii

St. Mary's Journal on Legal Malpractice & Ethics

The author examines the communications and activities of bankruptcy lawyers participating in the listserv of the Bankruptcy Law Section of the State Bar of Texas and finds that those activities constitute a previously unrecognized form of “lawyering,” which he has defined as the work of lawyers in and through the legal system to accomplish the objectives of their clients. Review of specific postings about legal issues and practical problems by Texas bankruptcy lawyers, whose practices are primarily on behalf of individual debtors in cases under Chapters 7 and 13 of the Bankruptcy Code, and observations about the voluntary, collaborative, and …

Collared—A Film Case Study About Insider Trading And Ethics, Garrick Apollon

St. Mary's Journal on Legal Malpractice & Ethics

This Article discusses the visual legal advocacy documentary film, Collared, by Garrick Apollon (author of this Article). Collared premiered in fall 2018 to a sold-out audience at the Hot Docs Cinema in Toronto for the Hot Docs for Continuing Professional Education edutainment initiative. Collared features the story and reveals the testimony of a convicted ex-insider trader who is still struggling with the tragic consequences of “the most prolonged insider trading scheme ever discovered by American and Canadian securities investigators.” The intimate insights shared by former lawyer and reformed white-collar criminal, Joseph Grmovsek, serves as a painful reminder of the …

Ethics In An Echo Chamber: Legal Ethics & The Peremptory Challenge, Kayley A. Viteo

St. Mary's Journal on Legal Malpractice & Ethics

Abstract forthcoming.

Lawyers For White People?, Jessie Allen

Articles

This article investigates an anomalous legal ethics rule, and in the process exposes how current equal protection doctrine distorts civil rights regulation. When in 2016 the ABA Model Rules of Professional Conduct finally adopted its first ever rule forbidding discrimination in the practice of law, the rule carried a strange exemption: it does not apply to lawyers’ acceptance or rejection of clients. The exemption for client selection seems wrong. It contradicts the common understanding that in the U.S. today businesses may not refuse service on discriminatory grounds. It sends a message that lawyers enjoy a professional prerogative to discriminate against …

Ethical Issues With Lawyers Openly Carrying Firearms, Dru Stevenson

St. Mary's Journal on Legal Malpractice & Ethics

Ethical concerns arise when lawyers openly carry firearms to adversarial meetings related to representation, such as depositions and settlement negotiations. Visible firearms introduce an element of intimidation, or at least the potential for misunderstandings and escalation of conflicts. The adverse effects of openly carried firearms can impact opposing parties, opposing counsel, the lawyer’s potential clients, witnesses, and even judges and jurors encountered outside the courtroom. The ABA’s Model Rules of Professional Conduct in their current form include provisions that could be applicable, such as rules against coercion and intimidation, but there is no explicit reference to firearms. Several reported incidents …

The Government Lawyer As Activist: A Legal Ethics Analysis, Andrew Martin

Articles, Book Chapters, & Popular Press

Can a lawyer and government employee represent the government in her professional life while being an activist in her personal life? There is a striking and seemingly irreducible clash, at least at the intuitive level, between the two roles – between representing the government on the one hand while at the same time lobbying it or litigating against it on the other. Government lawyers are nonetheless some of the more successful activists in recent Canadian history. This article analyzes whether this duality is problematic from a legal ethics perspective. The analysis is grounded in three case studies: disability rights activist …

Judicial Ethics: A New Paradigm For A New Era, Charles G. Geyh

St. Mary's Journal on Legal Malpractice & Ethics

As the preamble to the Model Code of Judicial Conduct indicates, traditional notions of judicial ethics operate within a rule of law paradigm, which posits that the “three I’s” of judicial ethics—independence, impartiality, and integrity—enable judges to uphold the law. In recent decades, however, social science, public opinion, and political commentary suggest that appointed judges abuse their independence by disregarding the law and issuing rulings in accord with their biases and other extralegal impulses, while elected judges disregard the law and issue rulings popular with voters, all of which calls the future of the three I’s and judicial ethics itself …

The Fiduciary Obligations Of Public Officials, Vincent R. Johnson

St. Mary's Journal on Legal Malpractice & Ethics

At various levels of government, the conduct of public officials is often regulated by ethical standards laid down by legislative enactments, such as federal or state statutes or municipal ordinances. These rules of government ethics are important landmarks in the field of law that defines the legal and ethical obligations of public officials. Such provisions can form the basis for the kinds of government ethics training that helps to minimize wrongful conduct by public servants and reduces the risk that the performance of official duties will be clouded by appearances of impropriety. Codified government ethics rules also frequently provide mechanisms …

Making The Modern American Legal Profession, 1969–Present, Michael Ariens

St. Mary's Law Journal

The American legal profession has changed dramatically over the past half-century greatly due to the solution and problem of “scale.” This was most noticeable after the American Bar Association’s adoption of the Code of Professional Responsibility. The reputation of lawyers and the legal community would continue to evolve in the eyes of the public. As such, the demand for lawyers and large law firms who had the capacity and means to handle such vast and varied issues would present itself. The increasing demand from large law firms over the years led to unprecedented growth and impact to the way in …

The Lawyer As Superhero: How Marvel Comics' Daredevil Depicts The American Court System And Legal Practice, Louis Michael Rosen

Faculty Scholarship

This article will explore on the portrayal of lawyers and the legal system in Daredevil comic books, particularly issues published in the Twenty-First Century. Because the Daredevil movie and the first two seasons of the Netflix television series have already been examined from various legal perspectives in past articles, this piece will highlight legal storylines from the comics themselves. This exploration is important because writers of future Netflix seasons will surely draw story elements from the comics discussed here and will very likely adapt these exact stories, encouraging the larger television audience to seek out and read the original comics. …

John The Theologian: Towards Integrating Law And Religion, Gordon T. Butler

Faculty Articles

No abstract provided.

Debating Immigration Restriction: The Case For Low And Slow, Amy L. Wax

All Faculty Scholarship

This article critiques our current politics of immigration, which is dominated by moralized and sentimental rhetoric. It argues for a more honest and balanced discussion of the merits of the status quo. A more mature debate would take into account many factors that now receive insufficient attention from politicians, academics, and the mainstream media, including the interests of voters and citizens as well as newcomers, legitimate nationalistic concerns both economic and cultural, the need for unity, stability, and cohesion through assimilation to a common culture, the primacy of American sovereignty through the maintenance of secure borders, and the integrity of …

Uncharted Waters? Legal Ethics And The Benefit Corporation, Joseph Pileri

St. Mary's Journal on Legal Malpractice & Ethics

Corporate law norms are reflected in lawyers’ ethical duties. The enactment of benefit corporation legislation across the country signals a legislative acknowledgment that corporate law can serve as a public, rather than a merely private, ordering mechanism. Benefit corporations expressly adopt a public benefit as a legal purpose of the enterprise. While many have written about this important development with respect to corporate fiduciary law, this essay is the first to explore the professional and ethical responsibility of lawyers representing benefit corporations. In the last century, as scholars and courts drove an understanding of corporate law that elevated the interests …

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 …

Competing Liabilities: Responding To Evidence Of Child Abuse That Surface During The Attorney-Client Relationship, Alison Beyea

Maine Law Review

Kevin Adams, a practicing attorney in Maine, represents John Brown in a dispute with Brown's landlord. Brown is facing eviction as a result of his inability to pay the rent. Over the course of the representation, Adams has come to believe that Brown is abusing his son. Brown--who is working two jobs but still cannot pay his rent--has told Adams of the incredible pressure he is facing. Brown has admitted that the pressure is getting to him and that he feels bad that he has been “taking it out on the kid.” Brown also told Adams that he had been …

Towering Figures, Enigmas, And Responsive Communities In American Legal Ethics, Thomas L. Shaffer

Maine Law Review

The Annual Edward S. Godfrey Lecture at the University of Maine School of Law was held on November 12, 1998. Professor Thomas L. Shaffer, Edward S. Godfry Professor of Law, presented “Towering Figures, Enigmas, and Responsive Communities in American Legal Ethics.”

Introductory Essay: Things Fall Apart: Hard Choices In Public Interest Law, Anthony V. Alfieri

Articles

No abstract provided.

The Lawyer As A Public Citizen, Cruz Reynoso

Maine Law Review

The Eleventh Annual Frank M. Coffin Lecture on Law and Public Service was held on October 17, 2002. Cruz Reynoso, Boochever and Bird Professor of Law at the University of California at Davis, School of Law and retired Associate Justice of the California Supreme Court, delivered the lecture. Established in 1992, the lecture honors Judge Frank M. Coffin, Senior Circuit Judge of the United States Court of Appeals for the First Circuit, an inspiration, mentor, and friend to the University of Maine School of Law. The Board and Staff of Volume 55 are honored to continue the tradition of publishing …

Alternative Business Structures: Good For The Public, Good For The Lawyers, Jayne R. Reardon

St. Mary's Journal on Legal Malpractice & Ethics

There has been a shift in consumer behavior over the last several decades. To keep up with the transforming consumer, many professions have changed the way they do business. Yet lawyers continue to deliver services the way they have since the founding of our country. Bar associations and legal ethicists have long debated the idea of allowing lawyers to practice in “alternative business structures,” where lawyers and nonlawyers can co-own and co-manage a business to deliver legal services. This Article argues these types of businesses inhibit lawyers’ ability to provide better legal services to the public and that the legal …

Ethics And The “Root Of All Evil” In Nineteenth Century American Law Practice, Michael Hoeflich

St. Mary's Journal on Legal Malpractice & Ethics

This Article discusses the bifurcated notions on the purpose of working as an attorney—whether the purpose is to attain wealth or whether the work in and of itself is the purpose. This Article explores the sentiments held by distinguished and influential nineteenth-century lawyers—particularly David Hoffman and George Sharswood—regarding the legal ethics surrounding attorney’s fees and how money in general is the root of many ethical dilemmas within the arena of legal practice. Through the texts of Hoffman and Sharswood, we find the origins of the ethical rules all American attorneys are subject to in their various jurisdictions.