Law Commons^™

The Tenuous Case For Conscience, Steven D. Smith

Steven D. Smith

If there is any single theme that has provided the foundation of modern liberalism and has infused our more specific constitutional commitments to freedom of religion and freedom of speech, that theme is probably “freedom of conscience.” But some observers also perceive a progressive cheapening of conscience– even a sort of degradation. Such criticisms suggest the need for a contemporary rethinking of conscience. When we reverently invoke “conscience,” do we have any idea what we are talking about? Or are we just exploiting a venerable theme for rhetorical purposes without any clear sense of what “conscience” is or why it …

Consensual Amorous Relationships Between Faculty And Students: The Constitutional Right To Privacy, Elisabeth A. Keller

Elisabeth Keller

Surveys of college students in the United States revealed that a significant number of students thought they had been victims of some form of sexual harassment. Growing awareness of the magnitude, dimensions, and effects of sexual harassment at educational institutions and the potential for institutional liability have prompted educators to adopt policies to avert such problems. The policies typically prohibit sexual harassment of employees and students and alert the university community to the serious effects of sexual harassment and the potential for student exploitation. Some universities have gone beyond establishing regulations directed at widely litigated problems of sexual harassment and …

Consensual Amorous Relationships Between Faculty And Students: The Constitutional Right To Privacy, Elisabeth A. Keller

Elisabeth Keller

Surveys of college students in the United States revealed that a significant number of students thought they had been victims of some form of sexual harassment. Growing awareness of the magnitude, dimensions, and effects of sexual harassment at educational institutions and the potential for institutional liability have prompted educators to adopt policies to avert such problems. The policies typically prohibit sexual harassment of employees and students and alert the university community to the serious effects of sexual harassment and the potential for student exploitation. Some universities have gone beyond establishing regulations directed at widely litigated problems of sexual harassment and …

Migrating Lawyers And The Ethics Of Conflict Checking, Paul R. Tremblay

Paul R. Tremblay

Lawyers often leave a practice setting and move to a new practice as their career paths advance or change. The incidence of lawyer migration has increased dramatically in the past decade, as law firms recruit more lateral hires and offer fewer partnership opportunities to their associates. As a lawyer prepares to change employment settings, her prospective new law firm asks her about the clients she has represented in the past. The new law firm must insist on this information, for without it the firm could not screen for possible conflicts of interest. Were the firm to hire a lawyer without …

Rebellious Lawyering, Regnant Lawyering, And Street-Level Bureaucracy, Paul R. Tremblay

Paul R. Tremblay

This Article explores the professional responsibilities of progressive lawyers representing the poor and disadvantaged. The author argues that lawyers representing the poor are generally good, energetic lawyers committed to social justice and lessening the pain of poverty. Subsequently, the defects found in poverty lawyering are structural, institutional, political, economic, and ethical. Therefore, the author posits that the mission of teachers and practitioners should be to develop practice patterns and proposals that account for the street-level experiences of legal services lawyers on the front lines. By examining the notions of rebellious and regnant lawyering, the author seeks to illuminate how these …

Professional Ethics In Interdisciplinary Collaboratives: Zeal, Paternalism And Mandated Reporting, Alexis Anderson, Lynn Barenberg, Paul R. Tremblay

Paul R. Tremblay

In this Article, the authors, two clinical law teachers and a social worker teaching in the clinic, wrestle with some persistent questions that arise in cross-professional, interdisciplinary law practice. In the past decade much writing has praised the benefits of interdisciplinary legal practice, but many sympathetic skeptics have worried about the ethical implications of lawyers working with nonlawyers, such as social workers and mental health professionals. Those worries include the difference in advocacy stances between lawyers and other helping professionals, and the mandated reporting requirements that apply to helping professionals but usually not to lawyers. This Article addresses those concerns …

Toward A Community-Based Ethic For Legal Services Practice, Paul R. Tremblay

Paul R. Tremblay

This Article is concerned with legal services lawyers and how they ethically might allocate their time and resources among their clients. Part I of this Article describes the institutional terrain of legal services practice and introduces the concept of the lawyer as street-level bureaucrat, operating within a complex, high demand human services bureaucracy. Part II discusses the problems inherent in attempts to ration care within a subsidized law practice. The purpose of Part II is to reveal the practice tensions that establishment professional ethics fail to accommodate, and that form an underlying justification for a discussion of triage principles. Part …

Lawyers And Professional Autonomy: Reflections On Corporate Lawyering And The Doctrine Of Informed Consent, Mark Spiegel

Mark Spiegel

No abstract provided.

Zacharias’S Prophecy: The Federalization Of Legal Ethics Through Legislative, Court, And Agency Regulation, Daniel R. Coquillette, Judith A. Mcmorrow

Daniel R. Coquillette

In his 1994 seminal article on Federalizing Legal Ethics, Prof. Fred Zacharias examined the need for a national and uniform code of ethics for attorneys. Prof. Zacharias was correct that there has been increasing pressure to federalize legal ethics, but that process is occurring not through articulation of national norms but rather through decentralized contextualization of attorney conduct norms. Federal agencies that direct securities practice, immigration, tax, patent, labor and many other areas of federal practice are increasingly supplementing state regulations to specifically regulate the attorneys who appear before their agencies. Targeted substantive federal law and treaty obligations also increasingly …

Toward An Ecclesiastical Professional Ethic: Lessons From The Legal Profession, Daniel R. Coquillette, Judith A. Mcmorrow

Daniel R. Coquillette

As the Catholic Church struggles with the aftermath of the clergy sexual abuse crisis, some have explored the possibility of an ecclesiastical code of professional conduct. Lawyers' long and storied history with professional codes offers a cautionary tale to those exploring an ecclesiastical code of ethics. As priests to our secular religion of law, lawyers are called forth and mandated by a competent authority to function in a defined role, the specifics of which are reflected, in part, in lawyer codes. As lawyers moved from Canons of Ethics (1908) to a Code of Professional Responsibility (1969) to Rules of Professional …

Professional Identity As Advocacy: The Good, The Bad, The Unseen, Robert Rubinson

Robert Rubinson

The legal profession adheres to a story of a unified profession. Nevertheless, the profession has distinct professional sub-groups which repeatedly represent clients with interests adverse to those represented by attorneys who identify with other sub-groups. The idea of “professional identity as advocacy” describes how such professional sub-groups accuse opposing sub-groups of greed, self-aggrandizement, or worse. This is most notable in two areas: personal injury litigation and criminal cases. This process has two seemingly contradictory consequences. First, it renders narrow areas extraordinarily visible, thus defining popular discourse and conceptions about lawyers and law. Second, it masks vast areas of litigation and …

How Do Roles Generate Reasons? On The Methods Of Legal Ethics, Stephen Galoob

Stephen Galoob

Debates about legal ethics should be oriented around the generative problem, which asks two fundamental questions. First, how does the lawyer’s role generate normatively compelling reasons for action? Second, what kinds of reasons can this role generate?

Every substantive theory of legal ethics is based on a solution to the generative problem. On the generative problem method, we should evaluate these theories based on their implicit solutions to the generative problem. None of the main theories of legal ethics is based on a solution to the generative problem that is both structurally valid and empirically verified.

The generative problem method …

Hard Lessons: The Role Of Law Schools In Addressing Prosecutorial Misconduct, Lara Bazelon

Lara A. Bazelon

This Article approaches prosecutorial misconduct from a pedagogical perspective by exploring the ways in which law school clinicians can teach their students how to confront the problem proactively and in-the-moment, with an eye toward reducing its rate of occurrence and blunting its corrosive effect. Prosecutorial misconduct is a serious problem that strikes at the heart of a criminal defendant’s constitutional right to a fair trial. More broadly, it has the potential to impact the integrity of the criminal justice system as a whole. Educating law school students in criminal clinics about this issue before they become prosecutors and criminal defense …

Is The Attorney-Client Privilege A Privilege Of The Rich? Federal Hmis Database Reporting And Homeless Client Confidentiality, Jennifer Hammitt

Jennifer Hammitt

No abstract provided.

On Butlers, Architects, And Lawyers: The Professionalism Of "The Remains Of The Day" And Of "The Fountainhead", Susan Daicoff

Susan Daicoff

Several commentators have explored the relationship of a fictional character of the butler, Stevens, in Kazuo Ishiguro’s novel, The Remains of the Day, to the proper professional role of the lawyer, since the novel was published. The professionalism of Stevens is here compared to that of another fictional character, the architect, Roark, in Ayn Rand’s novel, The Fountainhead, as they might be applied in the legal profession. The relationship of empirical research on lawyers’ values, wellbeing, and decisionmaking preferences to these divergent approaches to professionalism is then explored. A diversity of approaches to professional role is proposed as most appropriate, …

On Butlers, Architects, And Lawyers: The Professionalism Of "The Remains Of The Day" And Of "The Fountainhead", Susan Daicoff

Susan Daicoff

Several commentators have explored the relationship of a fictional character of the butler, Stevens, in Kazuo Ishiguro’s novel, The Remains of the Day, to the proper professional role of the lawyer, since the novel was published. The professionalism of Stevens is here compared to that of another fictional character, the architect, Roark, in Ayn Rand’s novel, The Fountainhead, as they might be applied in the legal profession. The relationship of empirical research on lawyers’ values, wellbeing, and decisionmaking preferences to these divergent approaches to professionalism is then explored. A diversity of approaches to professional role is proposed as most appropriate, …

Fred Zacharias And A Lawyer's Attempt To Be Guided By Justice: Flying With Harry Potter And Understanding How Lawyers Can Prosecute The People They Represent, Randy Lee

Randy Lee

No abstract provided.

Chasing The Atticus Code: Preserving Adjudication Integrity In Local Administrative Hearings, Michael N. Widener

Michael N. Widener

There are thousands of local governments in America, with estimates ranging to upwards of 90,000 such jurisdictions. Substantial numbers of attorneys act as hearing officers in those communities in a variety of roles. Some are independent contractors; others volunteer their services. Irrespective of compensation, I argue in this essay that, in a “non-counselor” role, Atticus is essentially ungoverned by codes of attorney professional conduct. Thus, potential for mischief abides, a circumstance worsened by the failure of many communities to impose standards of ethical behavior on these contractors or volunteers. I argue that in many instances the lone governing ethic affecting …

Disapproving Dishonesty: The Florida Supreme Court's Increased Intolerance For Lawyers' Fraud And Misrepresentations In Personal Business, Daniel J. Cohn

Daniel J. Cohn

No abstract provided.