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Legal ethics

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Full-Text Articles in Law

Ethics 20/20 Successfully Achieved Its Mission: It "Protected, Preserved, And Maintained", James E. Moliterno Aug 2019

Ethics 20/20 Successfully Achieved Its Mission: It "Protected, Preserved, And Maintained", James E. Moliterno

James E. Moliterno

The legal profession tends to look inward and backward when faced with crisis and uncertainty. The legal profession could make greater advances by looking outward and forward to find in society and culture the causes of and connections with the legal profession’s crises. Doing so would allow the profession to grow with society, solve problems with rather than against the flow of society, and be more attuned to the society the profession claims to serve.


Why Lawyers Do What They Do (When Behaving Ethically), James E. Moliterno Aug 2019

Why Lawyers Do What They Do (When Behaving Ethically), James E. Moliterno

James E. Moliterno

Since the early 1990s, when David Wilkins published his influential paper “Who Should Govern Lawyers” in the Harvard Law Review, legal ethics scholars and professors have paid attention to the range of processes and devices that govern lawyer behavior. This Article will report on the results of a study currently underway that seeks to provide empirical evidence to answer the question posed in this Article’s title: Do lawyers train staff in confidentiality preservation because they fear bar discipline? Because they fear malpractice liability? Because they must comply with malpractice liability carrier demands? Because they honor client confidences for their own …


Disciplinary Regulation Of Prosecutorial Discretion: What Would A Rule Look Like?, Samuel J. Levine Jul 2019

Disciplinary Regulation Of Prosecutorial Discretion: What Would A Rule Look Like?, Samuel J. Levine

Samuel J. Levine

This Essay is the third part of a larger project examining the potential role of professional discipline in the regulation and supervision of prosecutors’ charging decisions. The first two parts of the project argued that courts have both the authority and the ability to exercise effective disciplinary review of charging decisions through the adoption of ethics rules and their enforcement in the disciplinary process. This Essay takes the next step in the project, considering the nature of rules that courts might adopt, by exploring potential rules targeting two improprieties: arbitrary and capricious charging decisions, and discriminatory charging decisions.


Advising Clients After Critical Legal Studies And The Torture Memos, Milan Markovic Oct 2018

Advising Clients After Critical Legal Studies And The Torture Memos, Milan Markovic

Milan Markovic

No abstract provided.


Virtuous Billing, Randy D. Gordon, Nancy B. Rapoport Jun 2018

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

Randy D. Gordon

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 …


The Impact Of Global Developments On U.S. Legal Ethics During The Past Thirty Years, Laurel S. Terry Dec 2016

The Impact Of Global Developments On U.S. Legal Ethics During The Past Thirty Years, Laurel S. Terry

Laurel S. Terry


This Article is written to commemorate the thirtieth anniversary of the Georgetown Journal of Legal Ethics. After exploring what the world of legal ethics looked like thirty years ago, this Article analyzes how global developments have affected U.S. lawyer regulation and legal ethics dialogue since that time. It does so in several different ways. It begins by analyzing the growth pattern of articles published in the Georgetown Journal of Legal Ethics that have addressed or been influenced by global developments. The Article continues by identifying global societal developments, global legal developments, and global dialogue that have contributed to the …


The Legal Profession's Rule Against Vouching For Clients: Advocacy And The Manner That Is The Man Himself, Thomas L. Shaffer Nov 2016

The Legal Profession's Rule Against Vouching For Clients: Advocacy And The Manner That Is The Man Himself, Thomas L. Shaffer

Thomas L. Shaffer

Modem American lawyers impose on one another regulatory rules that speak to the old argument but have not resolved it. One of these requires lawyers to advocate the interests of their clients with zeal; another forbids them from arguing that they believe what they say, or in the merit of what they are asking the government to do. The latter of these is a rule against vouching for clients. Rules that require zeal and forbid vouching seek to prevent both advertent deceit and an "unprofessional" limitation of advocacy to causes lawyers believe in. My claim is that these rules are …


A Taxonomy Of Lawyer Regulation, Russell G. Pearce, Noel Semple, Renee Newman Knake Sep 2016

A Taxonomy Of Lawyer Regulation, Russell G. Pearce, Noel Semple, Renee Newman Knake

Noel Semple

What explains the dramatic contrast between legal services regulation in the United States and anglophone Canada, on one hand, and England/Wales and Australia, on the other? In order to help explain these divergent regulatory choices, and to further comparative analysis, this Essay proposes a taxonomy of theories of legal services regulation drawn from these common-law jurisdictions. Although most jurisdictions employ a combination of approaches, as well as some hybrid methods, the Essay identifies the two dominant perspectives: (1) the professionalist-independent framework, predominate in anglophone North America, and (2) the consumerist-competitive framework found in the common law jurisdictions of Northern Europe …


On Teaching Legal Ethics In The Law Office, Thomas L. Shaffer Aug 2016

On Teaching Legal Ethics In The Law Office, Thomas L. Shaffer

Thomas L. Shaffer

No abstract provided.


On Living One Way In Town And Another Way At Home, Thomas L. Shaffer Aug 2016

On Living One Way In Town And Another Way At Home, Thomas L. Shaffer

Thomas L. Shaffer

No abstract provided.


A Tale Of Two Trajectories, Cynthia A. Williams Jul 2016

A Tale Of Two Trajectories, Cynthia A. Williams

Cynthia A. Williams

No abstract provided.


Modern-Day Monitorships, Veronica Root Jun 2016

Modern-Day Monitorships, Veronica Root

Veronica Root

When a sexual abuse scandal rocked Penn State, when Apple engaged in anticompetitive behavior, and when servicers like Bank of America improperly foreclosed upon hundreds of thousands of homeowners, each organization entered into a Modern-Day Monitorship. Modern-Day Monitorships are utilized in an array of contexts to assist in widely varying remediation efforts. They provide outsiders a unique source of information about the efficacy of the tarnished organization’s efforts to remediate misconduct. Yet despite their use in high-profile and serious matters of organizational wrongdoing, they are not an outgrowth of careful study and deliberate planning. Instead, Modern-Day Monitorships have been employed …


Ethical Lawyering In A Global Community, Trevor C. W. Farrow Jun 2016

Ethical Lawyering In A Global Community, Trevor C. W. Farrow

Trevor C. W. Farrow

No abstract provided.


The Good, The Right, And The Lawyer, Trevor C. W. Farrow Jun 2016

The Good, The Right, And The Lawyer, Trevor C. W. Farrow

Trevor C. W. Farrow

No abstract provided.


When It Comes To Lawyers… Is An Ounce Of Prevention Worth A Pound Of Cure?, Laurel S. Terry Dec 2015

When It Comes To Lawyers… Is An Ounce Of Prevention Worth A Pound Of Cure?, Laurel S. Terry

Laurel S. Terry

This 3-page blog post addresses the topic of proactive lawyer regulation, which is also known as proactive management-based regulation or PMBR.  This blog post reviews Professor Susan Fortney's article entitled "Promoting Public Protection through an “Attorney Integrity” System: Lessons from the Australian Experience with Proactive Regulation System,"  and summarizes some of the impressive data that Professor Fortney collected in Australia, including her finding that sixty-two percent of the respondents reported that they agreed or strongly agreed with the following statement: the self-assessment process ‘was a learning exercise that enabled our firm to improve client service.’” The article also reports that …


Ethics Education In The First Year: An Experiment, Stephen Bundy Dec 2015

Ethics Education In The First Year: An Experiment, Stephen Bundy

Stephen Bundy

Bundy presents an account of the University of California at Berkeley's School of Law's experiment with teaching the required professional responsibility course in the first year. During this experiment, the faculty members involved in the course developed a strong set of teaching materials and a strong commitment to teaching from those materials.


The Law And The “Spirit Of The Law” In Legal Ethics, Samuel J. Levine Nov 2015

The Law And The “Spirit Of The Law” In Legal Ethics, Samuel J. Levine

Samuel J. Levine

This article aims to explore the notion of the lawyer’s ethical responsibility to go “beyond” the letter of the law and to comply with the “spirit” or “purpose” of the law. The article suggests that, notwithstanding its promotion of admirable principles and goals, a spirit of the law model may prove inconsistent with basic legal and ethical obligations of lawyers. The lawyer’s duties as fiduciary, as agent, and as zealous advocate, responsible for representing the best interests of the client, preclude the lawyer from focusing on the spirit and purpose of the law rather than on the aims of the …


Why U.S. Jurisdictions Should Adopt ‘Regulatory Objectives’ For The Legal Profession, Laurel S. Terry Oct 2015

Why U.S. Jurisdictions Should Adopt ‘Regulatory Objectives’ For The Legal Profession, Laurel S. Terry

Laurel S. Terry

As a Lichtenstein Distinguished Lecturer, Professor Terry was asked to write an article for the Hofstra Law Review. Her article, cited below, may be downloaded from the link at the top of the page. Laurel S. Terry, Globalization and the ABA Commission on Ethics 20/20: Reflections on Missed Opportunities and the Road Not Taken, 43 Hofstra L. Rev. 95 (2014) The ABA Commission on Ethics 20/20 was established in order to “perform a thorough review of the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation in the context of advances in technology and global legal …


An Introduction To The Financial Action Task Force And Its 2008 Lawyer Guidance, Laurel S. Terry Oct 2015

An Introduction To The Financial Action Task Force And Its 2008 Lawyer Guidance, Laurel S. Terry

Laurel S. Terry

The Financial Action Task Force (FATF) is a thirty-eight-member intergovernmental organization whose mission is to fight money laundering and terrorism financing; the U.S. is a founding member of the FATF. The FATF is best known for its 40 Recommendations, many of which are directed towards various kinds of “gatekeepers” who are in a position to facilitate or inhibit money laundering and terrorism financing. (These were previously known as the 40+9 Recommendations). Lawyers are among those to whom the FATF’s recommendations apply. This article provides the introduction for the Journal of the Professional Lawyer’s Symposium about the application of the FATF …


In The Public Interest': The Responsibilities And Rights Of Government Lawyers, Allan C. Hutchinson Oct 2015

In The Public Interest': The Responsibilities And Rights Of Government Lawyers, Allan C. Hutchinson

Allan C. Hutchinson

While considerable thought and effort have been put into exploring and fixing the ethical rights and professional responsibilities of private Lawyers, little energy has been directed towards defining and defending the role and duties of government lawyers. As a result, the traditional understanding seems to be that government lawyers are to consider themselves as being under the same regimen and restrictions as their private counterparts. After criticizing this default approach, the article offers a fresh evaluation of what is different about the role of government lawyers and develops a more appropriate model for thinking about their professional responsibilities and ethical …


Ethical Lawyering In A Global Community, Trevor C. W. Farrow Oct 2015

Ethical Lawyering In A Global Community, Trevor C. W. Farrow

Trevor C. W. Farrow

The pressures and opportunities of globalization have dramatically changed the nature of legal practice. How and why we practice law? For whom and whose benefit? In what contexts? And on what terms? The answers to these questions are continuously changing as a result of current global trends. The communities served by lawyers, the practice contexts in which they work and the issues that they face are increasingly diverse, complex, transnational and global in character. All of these challenges demand new competencies and raise a host of new issues about ethics and professionalism. As a threshold matter, more and more lawyers …


Is It Educational Malpractice Not To Teach Comparative Legal Ethics?, Susan Saab Fortney Aug 2015

Is It Educational Malpractice Not To Teach Comparative Legal Ethics?, Susan Saab Fortney

Susan S. Fortney

This article addresses the importance of teaching legal ethics in law schools. After a brief introduction, this article outlines several reasons why it is necessary to have formal ethical training in law schools. The article then explains the different methods of teaching legal ethics that are utilized in the United States. The article also details why it is important and how to teaching comparative legal ethics in law schools due to increased globalization. The article concludes by identifying sources, such as the internet, for teaching comparative legal ethics.


The Codification Of Professionalism: Can You Sanction Lawyers Into Being Nice?, Debra Moss Curtis Aug 2015

The Codification Of Professionalism: Can You Sanction Lawyers Into Being Nice?, Debra Moss Curtis

Debra Moss Curtis

On October 31, 2013, the Florida Supreme Court in The Florida Bar v. Norkin made it clear that “it wants the trend of escalating incivility among lawyers to stop.” With that decision, in which a lawyer was suspended and publicly reprimanded for his behavior, the court urged “Members of the Florida Bar, law professors, and law students should study” this case “as a glaring example of unprofessional behavior.” This article heeds the courts’ directive to do so, but also places it in the context of the movement to enhance professionalism statewide.At the heart of the professionalism movement is a conflict—between …


Challenges And Guidance For Lawyering In A Global Society, Susan Saab Fortney Jul 2015

Challenges And Guidance For Lawyering In A Global Society, Susan Saab Fortney

Susan S. Fortney

This foreword provides an overview of some key aspects of law practice that have changed over the last thirty years. Advancements in technology that allow communication and interaction across borders have facilitated lawyers in globalizing their practice locality. Consequently, new issues regarding comparative ethics have arisen. This foreword suggests that ethics rules have not kept pace with the changing landscape of law practice and uses current standards for advanced waivers, rules relating to contracts with represented and unrepresented persons, and the proper use of ethics rules in civil litigation to illustrate this point. This foreword raises concern over the erosion …


The Role Of Ethics Audits In Improving Management Systems And Practices: An Empirical Examination Of Management-Based Regulation Of Law Firms, Susan Saab Fortney Jul 2015

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

Susan S. Fortney

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.


Preventing Legal Malpractice And Disciplinary Complaints: Ethics Audits As A Risk-Management Tool, Susan Saab Fortney Jul 2015

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

Susan S. Fortney

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.


The Global “Landscape” Of Lawyer Regulation (Including U.S. Developments), Laurel S. Terry Jun 2015

The Global “Landscape” Of Lawyer Regulation (Including U.S. Developments), Laurel S. Terry

Laurel S. Terry

This 5 page document contains examples of the "who-what-when-where-why-and-how" developments that Steve Mark, Tahlia Gordon, and I wrote about in our "Trends in Global Lawyer Regulation" article, in my subsequent "Trends in Canadian Lawyer Regulation" article, and these slides. This "Landscape" document was prepared in July 2015 for the 4th International Conference of Lawyer Regulators held in Toronto. This is the document I referred in in my 2016 AALS Annual Meeting Presidential Program remarks. The original version can be found here: http://tinyurl.com/lterrylandscape , but this version corrects some broken links. For other materials from the ICLR …


Investigating Jurors On Social Media, Caren Myers Morrison Jun 2015

Investigating Jurors On Social Media, Caren Myers Morrison

Caren Myers Morrison

This essay proceeds in three parts. First, it examines the current state of jury investigations, and how they differ from those conducted in the past. Then, it describes the evolving legal and ethical positions that are combining to encourage such investigations. Finally, it offers a note of caution–condoning such investigations while keeping them hidden from jurors may be perceived as unfair and exploitative, risking a possible backlash from outraged jurors. Instead, I propose a modest measure to provide notice and explanation to jurors that their online information is likely to be searched, and why.


Materials On The Development Of Legal Ethics In The United States, Thomas Shaffer Jun 2015

Materials On The Development Of Legal Ethics In The United States, Thomas Shaffer

Thomas L. Shaffer

No abstract provided.


American Lawyers And Their Communities: Ethics In The Legal Profession, Thomas Shaffer, Mary Shaffer. Jun 2015

American Lawyers And Their Communities: Ethics In The Legal Profession, Thomas Shaffer, Mary Shaffer.

Thomas L. Shaffer

No abstract provided.