Law Commons^™

Daubert/Kumho Tire And The Legal Malpractice Expert Witness, Warren Trazenfeld, Robert M. Jarvis

Faculty Scholarship

In legal malpractice cases, parties almost always end up using expert witnesses. Whether a particular legal malpractice expert is qualified to testify often is a hotly contested issue. In this Article, the authors provide recommendations for how to qualify a legal malpractice expert and how to challenge a legal malpractice expert’s qualifications.

The Entity Attorney-Client Privilege Meets The Twenty-First Century: Rethinking Functional Equivalent Analysis In The Time Of A Nonemployee Workforce., Grace M. Giesel

Faculty Scholarship

Courts have struggled with whether an entity’s attorney-client privilege can protect communications between the entity’s lawyer and a nonemployee who has information the entity’s lawyer needs to best advise the entity. The nonemployee might be a former employee. But increasingly in recent times, the nonemployee is an individual who was never an entity employee. Corporations and other entities have incorporated nonemployees in their economic enterprises in all sorts of roles—roles employees may have held in the past. Many courts have accepted that the privilege can apply to communications involving former employees.

When faced with nonemployees who are not former employees, …

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 …

The Role Of Norms In Modern-Day Government Ethics, Veronica Root Martinez

Faculty Scholarship

Many scholars, policymakers, advocacy groups, members of the media, and citizens-at-large are lamenting the perceived decrease in adherence to norms and ethics by certain government officials over the past few years. Informal mechanisms—whether they be norms, ethics, customs, or a “gentleman’s word”—have long been relied upon to ensure certain standards of behavior within all aspects of society. The American government is no exception. From America’s founding, the rule of law created the backstop for its governmental processes, but the virtue of its leaders remained a constant component of its success. To be fair, the country has seen more than its …

Selling Out: An Instrumentalist Theory Of Legal Ethics, Keith N. Hylton

Faculty Scholarship

Legal ethics has received attention mostly from scholars who view it as a field for the application of moral philosophy. However, economic analysis is also useful in the study of legal ethics, because it can illuminate the incentives that generate ethical dilemmas and controversies. This is especially true in the subfield this paper devotes its attention to, lawyer conflict of interest rules. The problem I focus on is the incentive of the lawyer to "sell out" his client-for example, by providing confidential information to a potential adversary or by providing legal misinformation to the client in order to aid the …

Ethical Blind Spots In Adoption Lawyering, Malinda L. Seymore

Faculty Scholarship

Lawyers engaged in adoption work often call it “happy law,” and consider adoption – finding a child for yearning parents, finding parents for a needy child – an unmitigated good. That attitude can mask the fact that all adoption begins with loss. One family loses a child so that another family can gain one. A lawyer’s assurance that she is engaged in positive work can lead to ethical blind spots that ignore the complexities of adoption practice. And while the touchstone of adoption is the best interests of the child, the primacy in legal ethics of the interests of the …

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. …

The Essential Monroe Freedman, In Four Works, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Financial Rewards For Whistleblowing Lawyers, Nancy J. Moore, Kathleen Clark

Faculty Scholarship

The federal government relies increasingly on whistleblowers to ferret out fraud, and has awarded whistleblowers over $4 billion under the False Claims Act and the Dodd-Frank Wall Street reform and Consumer Protection Act. May lawyers ethically seek whistleblower rewards under these federal statutes? A handful of lawyers have tried to do so as FCA qui tam relators. They have not yet succeeded, but several court decisions suggest that they might be able to do so under confidentiality exceptions to state ethics law, which several courts have held are not preempted by the FCA. No lawyer has been publicly identified as …

Why Is There No Clear Doctrine Of Informed Consent For Lawyers?, Nancy J. Moore

Faculty Scholarship

Written as a contribution to a symposium issue of the Toledo Law Review honoring retiring professor Susan Martyn, this article takes as its starting point an early article by Professor Martyn entitled “Informed Consent in the Practice of Law.” In that article, Professor Martyn decried the inability of clients to control the course of their representation and urged state legislatures to remedy this situation by enacting legislation creating an action in damages based upon a lawyer’s failure to obtain the client’s informed consent. Such an action would be similar to common law actions that courts had recently recognized by patients …

Virtuous Billing, Randy D. Gordon, Nancy B. Rapoport

Faculty Scholarship

Aristotle tells us, in his Nicomachean Ethics, that we become ethical by building good habits and we become unethical by building bad habits: “excellence of character results from habit, whence it has acquired its name (êthikê) by a slight modification of the word ethos (habit).” Excellence of character comes from following the right habits. Thinking of ethics as habit-forming may sound unusual to the modern mind, but not to Aristotle or the medieval thinkers who grew up in his long shadow. “Habit” in Greek is “ethos,” from which we get our modern word, “ethical.” In Latin, habits are moralis, which …

Preventing Legal Malpractice And Disciplinary Complaints: Ethics Audits As A Risk-Management Tool, Susan Saab Fortney

Faculty Scholarship

This column examines the value of firm lawyers conducting and supporting ethics audits as an integral feature of a comprehensive risk-management program. For decades, legal malpractice experts have urged lawyers to implement systems, policies, and procedures related to the delivery of legal services. Once a firm adopts systems, policies, and procedures, a meaningful risk-management system requires a periodic examination to monitor lawyers’ compliance. Rather than waiting for a professional liability insurer to recommend or require such a systematic examination, proactive firm leaders and lawyers should seriously consider devoting time and resources to periodic ethics audits.

Teaching The Newly Essential Knowledge, Skills, And Values In A Changing World, Eliza Vorenberg, Cynthia F. Adcock, Eden E. Harrington, Elizabeth Kane, Lisa Bliss, Robin Boyle, Conrad Johnson, Susan Schechter, David Udell

Faculty Scholarship

This chapter of Building on Best Practices: Transforming Legal Education in a Changing World has contributions from many authors:

• Section A, Professional Identity Formation, includes:
  • Teaching Knowledge, Skills, and Values of Professional Identity Formation, by Larry O. Natt Gantt, II & Benjamin V. Madison III,
  • Integrating Professionalism into Doctrinally-Focused Courses, by Paula Schaefer,
  • Learning Professional Responsibility, by Clark D. Cunningham, and
  • Teaching Leadership, by Deborah L. Rhode.
• Section B, Pro Bono as a Professional Value, is by Cynthia F. Adcock, Eden E. Harrington, Elizabeth Kane, Susan Schechter, David S. Udell & Eliza Vorenberg.
• Section C, The Relational Skills of the …

The Role Of Ethics Audits In Improving Management Systems And Practices: An Empirical Examination Of Management-Based Regulation Of Law Firms, Susan Saab Fortney

Faculty Scholarship

For decades, legal malpractice experts have urged lawyers to implement risk management measures. To assist law firms in doing so, legal malpractice insurers have provided audit services and self-audit materials. Under the Australian regulatory regime, incorporated legal practices are required to complete a self-assessment process and to report on the firm's compliance with ten objectives of sound law practice. Using management-based principles, this Article discusses steps to take to encourage ethics audits "to merge good ethics and good business" in the U.S.

Lost In The Weeds Of Pot Law: The Role Of Ethics In The Movement To Legalize Marijuana, Helia Garrido Hull

Faculty Scholarship

No abstract provided.

Debt-Buyer Lawsuits And Inaccurate Data, Peter A. Holland

Faculty Scholarship

Pursuant to secret purchase and sale agreements (also known as forward flow agreements), the accounts that banks sell to debt buyers are often sold “as is,” with explicit and emphatic disclaimers that the debts may not be owed, the amounts claimed may not be accurate, and documentation may be missing. Despite their full knowledge that the accuracy and completeness of the data has been specifically disclaimed by the bank, when they sue consumers, debt buyers tell courts that the information obtained from the bank is inherently reliable and accurate. In order to avoid a fraud on the courts, the contents …

Ethical Issues In Mass Tort Plaintiffs' Representation: Beyond The Aggregate Settlement Rule, Nancy J. Moore

Faculty Scholarship

Those who have addressed ethics issues for plaintiffs’ lawyers in mass tort litigation have focused on possible reform of the aggregate settlement rule to facilitate global settlements. This Article addresses a broader range of ethical issues, including (1) application of the general conflicts of interest rule to both client-client and client-lawyer conflicts; (2) unresolved issues concerning the interpretation of the current aggregate settlement rule, including the need to disclose client names and the applicability of the rule to court-approved settlements and formula or matrix allocations; and (3) the ability of lawyers to voluntarily withdraw from representing plaintiffs who reject an …

Defending Junk-Debt-Buyer Lawsuits, Peter A. Holland

Faculty Scholarship

Junk debt buyer lawsuits have overwhelmed the courts all across the United States. These lawsuits wreak havoc on consumers and their families. Often overlooked is the fact that judgments against consumers which are based on junk debt are part of a zero sum game, where every bogus judgment deprives a legitimate creditor of the chance to get paid from scarce resources. Thus, the legitimate creditor to whom money is owed is materially harmed by the junk debt buyer who extracts money based on an illegitimate claim, or who causes someone to declare bankruptcy. Providing representation to this otherwise unrepresented population …

Regulating Conflicts Of Interest In Global Law Firms: Peace In Our Time?, Nancy J. Moore, Janine Griffiths-Baker

Faculty Scholarship

The phenomenon of the global law firm has transformed the face of international law practice. The practice of law has itself become global, as lawyers play their part in the growing international market for corporate and commercial services. The global expansion of legal practice has prompted several jurisdictions to consider how their own global legal service markets should be regulated. To date, only limited scholarly consideration has been given to the practicalities of regulating the day-to-day practice of law on an international scale.

This Article attempts to shed light on methods of regulating the conduct of lawyers in the context …

Authoritarian Legal Ethics: Bradley Wendel And The Positivist Turn, William H. Simon

Faculty Scholarship

In this Review, I respond to the authoritarian theme in Lawyers and Fidelity to Law. In essence, I argue: neither libertarianism nor authoritarianism is a plausible starting point for a general approach to legal ethics. It is a great virtue of Ronald Dworkin’s jurisprudence that it suggests a conception of law and legal ethics that does not depend on either perspective. Moreover, it suggests a conception of lawyer responsibility that is more plausible than either Emersonianism or moralistic positivism. By gesturing toward positivism and by surrendering to less reflective authoritarian impulses, Wendel’s argument underestimates the extent to which social …

Dichotomy No Longer? The Role Of The Private Business Sector In Educating The Future Russian Legal Professions, Philip Genty

Faculty Scholarship

In his 1916 work The Law: Business or Profession?, Julius Henry Cohen describes an American legal system in which uniform standards for regulating, disciplining, and educating the profession are just beginning to be developed, albeit unevenly. In discussing the differences between a business and a profession, he argues that a profession requires a uniform set of standards to guide it in matters of ethics, as well as a system of rigorous legal education that includes a firm grounding in these ethical principles.

Perhaps most surprising for a book written in the early twentieth century – long before the …

My Brother's Keeper: An Empirical Study Of Attorney Facilitation Of Money-Laundering Through Commercial Transactions, Lawton P. Cummings, Paul T. Stepnowsky

Faculty Scholarship

In recent years, various “gatekeeping initiatives” have been introduced through inter-governmental standard-setting organizations, such as the Financial Action Task Force, as well as through federal legislation in the United States, which seek to apply the mandatory customer due diligence, record keeping, and suspicious activity reporting obligations contained in the existing anti-money laundering regime to lawyers when they conduct certain commercial transactions on behalf of their clients. The organized bar has argued against such attempts to regulate it, in part, due to the lack of empirical data showing that, as a threshold matter, lawyers unwittingly aid money laundering in a significant …

The Absence Of Legal Ethics In The Ali's Principles Of Aggregate Litigation: A Missed Opportunity - And More, Nancy J. Moore

Faculty Scholarship

There is little discussion of legal ethics in the American Law Institute’s recently adopted Principles of Aggregate Litigation, either in the black-letter rules or the comments. The primary exception is that the Principles devote several sections to the so-called aggregate settlement rule (Rule 1.8(g) of the ABA Model Rules of Professional Conduct), although the purpose of these sections appears to be a proposed modification of that rule to permit claimants to agree in advance to be bound by majority approval of a particular settlement. The purpose of this essay is not to discuss the controversial aggregate settlement proposal (which the …

The One Hundred Billion Dollar Problem In Small Claims Court: Robo-Signing And Lack Of Proof In Debt Buyer Cases, Peter A. Holland

Faculty Scholarship

Recent years have seen the rise of a new industry which has clogged the dockets of small claims courts throughout the country. It is known as the "debt buyer" industry. Members of this $100 billion per year industry exist for no reason other than to purchase consumer debt which others have already deemed uncollectable, and then try to succeed in collecting where others have failed. Debt buyers pay pennies on the dollar for this charged off debt, and then seek to collect, through hundreds of thousands of lawsuits, the full face value of the debt. The emergence and vitality of …

Engaged Client-Centered Representation And The Moral Foundations Of The Lawyer-Client Relationship, Kate Kruse

Faculty Scholarship

The field of legal ethics, as we know it today, has grown out of thoughtful, systematic grounding of lawyers’ duties in a comprehensive understanding of lawyers’ roles and the situating of lawyers’ roles in underlying theories of law, morality and justice. Unfortunately, the field of theoretical legal ethics has mostly lost track of the thing at the heart of a lawyers’ role: the integrity of the lawyer-client relationship. The field of theoretical legal ethics has developed in ways that are deeply lawyer-centered rather than fundamentally client-centered. This paper, which was delivered at Hofstra Law School as the Lichtenstein Distinguished Professor …

The Challenges Of Developing Cross-Cultural Legal Ethics Education, Professional Development, And Guidance For The Legal Professions, Philip Genty

Faculty Scholarship

The broad goal of this paper is to describe the need, and provide a framework, for engaging in cross-cultural conversations among lawyers, law teachers, and others, who are using legal ethics as a vehicle for improving the legal professions and the delivery of legal services. All legal cultures struggle with the question of how to educate students and lawyers to be ethical professionals and how to regulate the legal profession effectively. The purpose of the cross-cultural conversations discussed in this paper would be to develop principles of legal ethics education, professional development, and regulation of the legal professions that can …

No Paradise To Regain: Comments On Russell G. Pearce And Eli Wald, The Obligation Of Lawyers To Heal Civic Culture: Confronting The Ordeal Of Incivility In The Practice Of Law, Kenneth S. Gallant

Faculty Scholarship

This piece responds to Russell G. Pearce and Eli Wald, The Obligation of Lawyers to Heal Civic Culture: Confronting the Ordeal of Incivility in the Practice of Law (presented at the 2011 Altheimer Symposium, UALR Bowen School of Law). It agrees with their view that arguments from "relational self-interest" (viewing self interest as necessarily connected to the interests of others) can address issues of incivility in the American politics and the practice of law in ways that other arguments cannot.

It disagrees with them on a few specific points:

1. The so-called Ordeal of Incivility in American politics, culture and …

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

Faculty Scholarship

Q&A with Robert Rhee, Carol Morgan, Tamar Frankel, and Mark Fagan regarding courses focused on business ethics.

Good afternoon everyone. I am Carol Morgan. I am with the University of Georgia School of Law's Business Law and Ethics program. I'm joined today by very distinguished panelists, Tamar Frankel from Boston University and Robert Rhee from the University of Maryland. You will hear a lot more about them during our program today. I am glad to see this interest in the topic of business ethics. Law schools have not traditionally put a lot of attention or focus on the subject of …

Legal Ethics Scholarship Of Ted Schneyer: The Importance Of Being Rigorous, The Festschrift For Ted Schneyer Lawyer Regulation For The 21st Century: Foreword, Bruce A. Green

Faculty Scholarship

This collection on "Lawyer Regulation for the 21st Century" celebrates Ted Schneyer's legal ethics scholarship. From my perspective as Ted's friend and colleague in the field of legal ethics, it is obvious how richly he deserves this festschrift, and it is my privilege to be invited to contribute its foreword. But to someone outside the field, many questions might be raised. Why celebrate legal scholarship? Why celebrate legal ethics scholarship? Why celebrate Ted Schneyer's legal ethics scholarship? And why celebrate it by collecting writings on the theme of Lawyer Regulation for the 21st Century? Though I have no desire to …

Crisis In The Legal Profession: Don’T Mourn, Organize!, Michael E. Tigar

Faculty Scholarship

No abstract provided.