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Professional Ethics

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Full-Text Articles in Law

A Typology Of Justice Department Lawyers' Roles And Responsibilities, Rebecca Roiphe Jun 2020

A Typology Of Justice Department Lawyers' Roles And Responsibilities, Rebecca Roiphe

Articles & Chapters

President Trump’s administration has persistently challenged the legitimacy of the Department of Justice (“DOJ”). In the past, DOJ, like other governmental institutions, has been fairly resilient. Informal norms and practices have served to preserve its proper functioning, even under pressure. The strain of the past three years, however, has been different in kind and scale. This Article offers a typology of different roles for DOJ lawyers and argues that over time the institution has evolved by allocating different functions and responsibilities to different positions within DOJ. By doing so, it has for the most part maintained the proper balance ...


Stay In The Fight With Civility And Professionalism, David Spratt Jan 2020

Stay In The Fight With Civility And Professionalism, David Spratt

Articles in Law Reviews & Other Academic Journals

No abstract provided.


The Virtue Of Vulnerability: Mindfulness And Well-Being In Law Schools And The Legal Profession, Nathalie Martin Oct 2019

The Virtue Of Vulnerability: Mindfulness And Well-Being In Law Schools And The Legal Profession, Nathalie Martin

Faculty Scholarship

This article examines the role of vulnerability in transforming individual relationships, particularly the attorney-client relationship. In this essay, Martin argues that broadening our expressions can improve our client relations and decrease the likelihood that when that inevitable mistake occurs, we will be sued for it. Also, based upon virtue ethics, that practicing vulnerability is also virtuous and thus worthwhile in and of itself.

This essay starts by describing the traits people look for in lawyers as well as evidence that clients often feel that their lawyers are less than human. Then examines how legal education contributes to this problem by ...


The Settlement Problem In Public Interest Law, Susan Carle Jan 2018

The Settlement Problem In Public Interest Law, Susan Carle

Articles in Law Reviews & Other Academic Journals

Public interest lawyers, of many types and political persuasions, play a vital role in pursuing '"public justice." For public interest (as for all) lawyers, settlement provides an important means of resolving cases. Yet a persisting ambivalence about case settlement in public interest law contributes to the difficulties public interest practitioners face in sustaining themselves in practice. Indeed, public interest lawyers identify case settlement as posing some of the most vexing legal ethics problems they routinely confront.

The trouble often stems from the fact that, in public interest law where clients do not pay for legal services, the economic incentives that ...


Can The President Control The Department Of Justice?, Bruce Green, Rebecca Roiphe Jan 2018

Can The President Control The Department Of Justice?, Bruce Green, Rebecca Roiphe

Articles & Chapters

As the investigation into President Trump's campaign ties to Russia grows increasingly intense, it is critical to understand how much control the President has over the Attorney General and the Department of Justice. Some critics claim that the President has absolute power to direct federal prosecutors and control their decisions. The President and his lawyers, joined by several scholars, take this claim one step further by arguing that the chief executive could not be guilty of obstruction of justice because his control over all prosecutorial decisions is absolute. This issue last arose during the Nixon Administration. The Department of ...


The Impact Of Global Developments On U.S. Legal Ethics During The Past Thirty Years, Laurel S. Terry Jul 2017

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

Faculty Scholarly Works

This Essay 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 Essay 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 publised in the Georgetown Journal of Legal Ethics that have addressed or been influenced by global developments. The Essay continues by identifying global societal developments, global legal developments, and global dialogue that have contributed to the ...


When It Comes To Lawyers, Is An Ounce Of Prevention Worth A Pound Of Cure, Laurel Terry Jan 2016

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

Faculty Scholarly Works

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 ...


The Power Of Lawyer Regulators To Increase Client & Public Protection Through Adoption Of A Proactive Regulation System, Laurel S. Terry Jan 2016

The Power Of Lawyer Regulators To Increase Client & Public Protection Through Adoption Of A Proactive Regulation System, Laurel S. Terry

Faculty Scholarly Works

This Article focuses on those who regulate U.S. laywers. The Article argues that the lawyers who head regulatory bodies in the United States have the ability to adjust the focus of the regulator for which they work in a way that will increase client and public protection. The Article further argues that it is appropriate for lawyers in these positions to exercise this power and that they should do so. The Article concludes by offering two concrete recommendations.

The first recommendation is that those who are in charge should, upon reflection, adopt a mindset in which they recognize that ...


Information Overload, Multi-Tasking, And The Socially Networked Jury: Why Prosecutors Should Approach The Media Gingerly, Andrew E. Taslitz Jun 2015

Information Overload, Multi-Tasking, And The Socially Networked Jury: Why Prosecutors Should Approach The Media Gingerly, Andrew E. Taslitz

School of Law Faculty Publications

The rise of computer technology, the internet, rapid news dissemination, multi-tasking, and social networking have wrought changes in human psychology that alter how we process news media. More specifically, news coverage of high-profile trials necessarily focuses on emotionally-overwrought, attention-grabbing information disseminated to a public having little ability to process that information critically. The public’s capacity for empathy is likewise reduced, making it harder for trial processes to overcome the unfair prejudice created by the high-profile trial. Market forces magnify these changes. Free speech concerns limit the ability of the law to alter media coverage directly, and the tools available ...


Something's Afoot And It's Time To Pay Attention: Thinking About Lawyer Regulation In A New Way, Laurel Terry Jan 2015

Something's Afoot And It's Time To Pay Attention: Thinking About Lawyer Regulation In A New Way, Laurel Terry

Faculty Scholarly Works

No abstract provided.


Negotiator's Nook: The Ins And Outs Of Effective Negotiation, David Spratt Jan 2015

Negotiator's Nook: The Ins And Outs Of Effective Negotiation, David Spratt

Articles in Law Reviews & Other Academic Journals

No abstract provided.


Globalization And The Aba Commission On Ethics 20/20: Reflections On Missed Opportunities And The Road Not Taken, Laurel S. Terry Oct 2014

Globalization And The Aba Commission On Ethics 20/20: Reflections On Missed Opportunities And The Road Not Taken, Laurel S. Terry

Faculty Scholarly Works

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 practice developments.” The thesis of this article is that the Commission was much more successful with the “technology” aspect of its work than it was with the globalization aspect of its work. This article offers an explanation for these differing levels of success and identifies an alternative path the Commission might have taken that might have led to ...


Am I My Brother’S Keeper? A Tax Law Perspective On The Challenge Of Balancing Gatekeeping Obligations And Zealous Advocacy In The Legal Profession, Richard L. Lavoie Sep 2014

Am I My Brother’S Keeper? A Tax Law Perspective On The Challenge Of Balancing Gatekeeping Obligations And Zealous Advocacy In The Legal Profession, Richard L. Lavoie

Akron Law Publications

In recent years the question of whether lawyers have a general ethical obligation to serve a gatekeeping function has been raised in a number of legal contexts. The reaction of the practicing bar generally has been unenthusiastic. While asserting that a gatekeeping function should be generally applicable to all attorneys is a relatively recent stance, such an obligation historically has been acknowledged to various degrees in several specific practice areas, including particularly in the field of federal income taxation. This piece examines the gatekeeping question, and how the practicing bar should react to it, through an examination of the gatekeeping ...


Putting The Legal Profession's Monopoly On The Practice Of Law In A Global Context, Laurel S. Terry May 2014

Putting The Legal Profession's Monopoly On The Practice Of Law In A Global Context, Laurel S. Terry

Faculty Scholarly Works

When considering the proper scope of the U.S. legal profession's monopoly, regulators and commentators may find it useful to compare the scope of the U.S. monopoly with the legal profession monopolies found in other countries. This Article surveys what we know-and do not know-about the scope of the monopoly in countries other than the United States. The Article finds that the state of knowledgeon this topic is relatively undeveloped, that the scope of the U.S. legal profession's monopoly appears to be larger than the scope of the monopoly found in some other countries, but that ...


Transnational Legal Practice (United States), Laurel S. Terry Jan 2013

Transnational Legal Practice (United States), Laurel S. Terry

Faculty Scholarly Works

This article covers three years of Transnational Legal Practice developments in the U.S. (It is the companion article to 47 Int’l Lawyer 485 (2013) which discusses transnational legal practice developments outside of the U.S.) This article begins by briefly reviewing the uncertainty about the future of U.S. legal education and legal services. The next section discusses the proposals and changes that emanated from the ABA Commission on Ethics 20/20, which was tasked with evaluating what changes were needed in light of globalization and technology developments. The third section of this article discusses the Uniform Bar ...


Transnational Legal Practice (International), Laurel S. Terry Jan 2013

Transnational Legal Practice (International), Laurel S. Terry

Faculty Scholarly Works

This article covers three years of Transnational Legal Practice developments outside of the US. (It is the companion piece to 47 Int'l Law. 499 (2013) which discusses US developments.) This article discusses the approval of an Alternative Business Structure licensing system by the UK Solicitors Regulation Authority and its subsequent issuance of ABS licenses. The second section reviews the emergence of the “Troika” as a new regulatory influence in Europe, citing as an example the joint ABA-CCBE letter to the IMF. (The Troika refers to the International Monetary Fund, the European Central Bank, and the European Commission.) The third ...


Reflections On Us Policies Regarding Effective Regulation And Discipline And Foreign Lawyer Mobility: Has The Time Come To Talk About The Elephant In The Room, Laurel S. Terry Jan 2013

Reflections On Us Policies Regarding Effective Regulation And Discipline And Foreign Lawyer Mobility: Has The Time Come To Talk About The Elephant In The Room, Laurel S. Terry

Faculty Scholarly Works

The ABA has adopted four model policies that address, in one way or another, the issue of foreign lawyer mobility. These policies are the ABA Model Foreign Legal Consultant Rule, which is commonly known as the FLC rule, the ABA Model Rule for Temporary Practice by Foreign Lawyers, which is commonly known as the FIFO rule, ABA Model Rule of Professional Conduct 5.5, which permits foreign lawyers to serve as in-house counsel, and the ABA Model Rule on Pro Hac Vice Admission. All four of the ABA’s foreign lawyer mobility recommendations include a requirement that the mobile foreign ...


Judicial Ethics And Supreme Court Exceptionalism, Amanda Frost Jan 2013

Judicial Ethics And Supreme Court Exceptionalism, Amanda Frost

Articles in Law Reviews & Other Academic Journals

In his 2011 Year-End Report on the Federal Judiciary, Chief Justice John Roberts cast doubt on Congress’s authority to regulate the Justices’ ethical conduct, declaring that the constitutionality of such legislation has “never been tested.” Roberts’ comments not only raise important questions about the relationship between Congress and the Supreme Court, they also call into question the constitutionality of a number of existing and proposed ethics statutes. Thus, the topic deserves close attention.

This Essay contends that Congress has broad constitutional authority to regulate the Justices’ ethical conduct, just as it has exercised control over other vital aspects of ...


Effective Plea Bargaining Counsel, Jenny M. Roberts Jan 2013

Effective Plea Bargaining Counsel, Jenny M. Roberts

Articles in Law Reviews & Other Academic Journals

Fifty years ago, Clarence Earl Gideon needed an effective trial attorney. The Supreme Court agreed with Gideon that the Sixth Amendment guaranteed him the right to counsel at trial. Recently, Galin Frye and Anthony Cooper also needed effective representation. These two men, unlike Gideon, wanted to plead guilty and thus needed effective plea bargaining counsel. However, their attorneys failed to represent them effectively, and the Supreme Court - recognizing the reality that ninety-five percent of all convictions follow guilty pleas and not trials - ruled in favor of Frye and Cooper.

If negotiation is a critical stage in a system that consists ...


In Defense Of Scholars' Briefs: A Response To Richard Fallon, Amanda Frost Jan 2013

In Defense Of Scholars' Briefs: A Response To Richard Fallon, Amanda Frost

Articles in Law Reviews & Other Academic Journals

In a thoughtful and provocative essay, Richard Fallon criticizes law professors for lightly signing onto 'scholars’ briefs,' that is, amicus briefs filed on behalf of a group of law professors claiming expertise in the subject area. Fallon argues that law professors are constrained by the moral and ethical obligations of their profession from joining scholars’ briefs without first satisfying standards similar to those governing the production of scholarship, and thus he believes that law professors should abstain from adding their names to such briefs more often than they do now.

This response begins by describing the benefits of scholars’ briefs ...


Why Punctuation Matters: Part Three, David Spratt Jan 2013

Why Punctuation Matters: Part Three, David Spratt

Articles in Law Reviews & Other Academic Journals

No abstract provided.


The Great Recession And The Rhetorical Canons Of Law And Economics, Michael D. Murray Jul 2012

The Great Recession And The Rhetorical Canons Of Law And Economics, Michael D. Murray

Law Faculty Publications

THE GREAT RECESSION AND THE RHETORICAL CANONS OF LAW AND ECONOMICS, by Michael D. Murray

Abstract

The Great Recession of 2008 and onward has drawn attention to the American economic and financial system, and has cast a critical spotlight on the theories, policies, and assumptions of the modern, neoclassical school of law and economics—often labeled the "Chicago School"—because this school of legal economic thought has had great influence on the American economy and financial system. The Chicago School's positions on deregulation and the limitation or elimination of oversight and government restraints on stock markets, derivative markets, and ...


What Must We Hide: The Ethics Of Privacy And The Ethos Of Disclosure, Anita L. Allen Jan 2012

What Must We Hide: The Ethics Of Privacy And The Ethos Of Disclosure, Anita L. Allen

Faculty Scholarship at Penn Law

No abstract provided.


Lawyers Judging Experts: Oversimplifying Science And Undervaluing Advocacy To Construct An Ethical Duty?, David S. Caudill Aug 2011

Lawyers Judging Experts: Oversimplifying Science And Undervaluing Advocacy To Construct An Ethical Duty?, David S. Caudill

Working Paper Series

My focus is on an apparent trend at the intersection of the fields of evidentiary standards for expert admissibility and professional responsibility, namely the eagerness to place more ethical responsibilities on lawyers to vet their proffered expertise to ensure its reliability. My reservations about this trend are not only based on its troubling implications for the lawyer’s duty as a zealous advocate, which already has obvious limitations (because of lawyers’ conflicting duties to the court), but are also based on the problematic aspects of many reliability determinations. To expect attorneys—and this is what the proponents of a duty ...


Conflicts Of Interest In Criminal Cases: Should The Prosecution Have A Duty To Disclose?, Anne Poulin Feb 2010

Conflicts Of Interest In Criminal Cases: Should The Prosecution Have A Duty To Disclose?, Anne Poulin

Working Paper Series

This article addresses two types of conflicts of interests that arise in criminal cases: 1) when defense counsel has an employment relation to the prosecutor’s office, and 2) when defense counsel faces criminal investigation or charges. Both these situations threaten both the defendant’s representation and the actual as well as apparent fairness of the proceeding. Yet, only in extreme cases are these conflicts likely to result in a reversal of the defendant’s conviction. As a result, protection of the defendant and the fairness of the process often depends on early intervention, which allows the court to advise ...


The Office Of Professional Responsibility - Mission And Structure (Slides) Nov 2009

The Office Of Professional Responsibility - Mission And Structure (Slides)

William & Mary Annual Tax Conference

No abstract provided.


Corporate Law And The Rhetoric Of Choice, Kent Greenfield Feb 2009

Corporate Law And The Rhetoric Of Choice, Kent Greenfield

Boston College Law School Faculty Papers

Rhetorically, the notion of choice has always been a powerful one in politics and law. This essay is intended to offer a note of caution about its use. Despite its progressive hue of individual freedom, the rhetoric of choice increasingly tends to be a notion used to defend and uphold existing matrices of economic and social power. This is because the rhetoric of choice is an excellent way to support exiting power relationships. The assertion that people acting within such power relationships are simply choosing their current situation undermines efforts to change those relationships. The powerful stay powerful; the weak ...


Government Lawyers In The Liberal State, W. Bradley Wendel Feb 2008

Government Lawyers In The Liberal State, W. Bradley Wendel

Cornell Law Faculty Working Papers

Criticism of the “politicization” of the role of federal government lawyers has been intense in recent years, with the scandals over the hiring practices at the Department of Justice, and the advice given to the administration by lawyers at the Office of Legal Counsel, concerning various aspects of the post-9/11 national security environment. Unfortunately, many of these critiques do not hold up very well under scrutiny. We lack a coherent account of what it means to “politicize” the practice of interpreting and applying the law. This paper argues that our evaluative discourse about the ethics of government lawyers is ...


The Prosecutor And The Press: Lessons (Not) Learned From The Mike Nifong Debacle, R. Michael Cassidy Jan 2008

The Prosecutor And The Press: Lessons (Not) Learned From The Mike Nifong Debacle, R. Michael Cassidy

Boston College Law School Faculty Papers

Using the Mike Nifong disciplinary case in North Carolina as a focal point, the author examines the disciplinary rules pertaining to public speech by attorneys during the pendency of an adjudicatory proceeding. The author argues that in light of the Supreme Court’s 2002 decision in Republican Party of Minnesota v. White, certain provisions of Model Rules of Professional Conduct, Rules 3.6 and 3.8, may violate the first amendment, at least as applied to an elected prosecutor speaking during a political campaign. While former District Attorney Nifong made several statements to the media during the so-called “Duke Lacrosse ...


Re-Defining Pro Bono: Professional Commitment To Public Service, Gary A. Munneke Jan 2008

Re-Defining Pro Bono: Professional Commitment To Public Service, Gary A. Munneke

Elisabeth Haub School of Law Faculty Publications

This article suggests that the current version of Rule 6.1 of the Model Rules of Professional Conduct has not achieved its objective of fostering universal public and pro bono service among lawyers, and proposes a change to the current rule that hopefully will be more successful in achieving these laudable objectives. From the earliest days of the Anglo-American legal profession, lawyers have understood public, or pro bono publico, service to be fundamental to their identity as professionals. During the last half of the 20th century, however, this evolution became a revolution, as pro bono increasingly came to be identified ...