Law Commons^™

Who Watches The Watchmen? Using The Law Governing Lawyers To Identify The Applicant Duty Gap And Hold Bar Examiner Gatekeepers Accountable, Ashley M. London

Law Faculty Publications

The legal profession holds lawyers to high standards in their personal and professional lives and expects aspiring members to follow the ethical rules with scrupulous precision and candor. Yet the profession, and those monitoring admission to the profession, afford no protections or recourse to this class of young professionals during that critical period between graduation and successful bar passage.

Without reform, this previously unacknowledged duty gap will continue to demoralize and potentially harm future lawyers and reflect negatively on the profession as a whole. Supervising bodies, discussed within, treat applicants as if they have already committed an ethical breach. Indeed, …

The Increased Use And Permanency Of Technology: How Those Changes Impact Attorneys’ Professional Responsibility And Ethical Obligations To Clients And Recommendations For Improvement, Scott B. Piekarsky

University of Miami Business Law Review

No abstract provided.

Reconceiving Ethics For Judicial Law Clerks, Gregory Bischoping

St. Mary's Journal on Legal Malpractice & Ethics

Judicial law clerks hold a unique and critical position in our legal system. They play a central part in the functioning of the judiciary, oftentimes writing the first draft of their judge’s opinions and serving as their trusted researcher and sounding board. Moreover, they are privy to the many highly confidential processes and private information behind the important work of the judiciary. It stands to reason the comprehensive set of ethical duties that bind the world of lawyers and judges should also provide guidance for judicial law clerks. The most important among those ethics rules is a duty of confidentiality. …

The Ethics Of Trump's Shadow Lawyers?, Peter A. Joy, Kevin C. Mcmunigal

Scholarship@WashULaw

The barrage of over sixty failed lawsuits filed by lawyers representing former President Donald Trump and his allies seeking to overturn the 2020 presidential election brought forth numerous calls to sanction these lawyers. So far, Rule 11 and disciplinary sanctions have reached one of the most public of the pro-Trump lawyers, Rudolph Giuliani, as well as some of the lawyers who filed and put their names on the complaints initiating the frivolous cases. This Essay discusses the need to impose sanctions on the lawyers behind the scenes—who directed and coordinated the bogus cases—but so far have largely evaded accountability.The authors …

Lawyers And The Lies They Tell, Bruce Green, Rebecca Roiphe

Articles & Chapters

Noting that the First Amendment protects lies about the government made in the public square, this article explores whether lawyers’ free speech rights ought to be different from that of other speakers. The law holds lawyers to a more demanding standard of conduct than others when it comes to aspects of lawyers’ fiduciary relationships with courts and clients. But how much more demanding can the law be when it comes to lawyers’ speech — in this case, false political speech? Applying the current First Amendment framework, we question the bar’s assumption that lawyers’ speech outside of these contexts can be …

Criticizing Judges: A Lawyer's Professional Responsibility, Lonnie T. Brown

Georgia Law Review

Lawyers, as officers of the court, are expected to act with deference and respect toward judges. Speaking sharply to or publicly criticizing members of the bench is frowned upon and not infrequently met with punitive responses. The judiciary, however, is not above reproach. Judges are fallible and may possess personal biases, tainting self-interest, or even prejudice. As such, at times, they must disqualify themselves if their ability to dispense justice fairly and impartially can reasonably be questioned. Indeed, the very nature of a judge’s role requires avoidance of even the “appearance of impropriety.” When judges fail to adhere to this …

The Rise Of Law And The Fall Of Circular 230: Tax Lawyer Professional Standards, 1985-2015, Michael Hatfield

Articles

This third article focuses on the two issues that dominated discussions of professional responsibility standards for tax lawyers in the 1985-2015 period: return position standards and tax shelter opinions. It opens with consideration of the ABA’s 1965 opinion providing “reasonable basis” as the standard for undisclosed return positions, and then traces the response to that opinion as the response prods the development of the 1985 replacement with its “realistic possibility of success” standard. The Article documents the extensive interaction between Congress, the Treasury Department, and the tax bar over the next 30 years during which penalties are studied and revised …

Playing By The Rule: How Aba Model Rule 8.4(G) Can Regulate Jury Exclusion, Anna Offit

Faculty Journal Articles and Book Chapters

Discrimination during voir dire remains a critical impediment to empaneling juries that reflect the diversity of the United States. While various solutions have been proposed, scholars have largely overlooked ethics rules as an instrument for preventing discriminatory behavior during jury selection. Focusing on the ABA Model Rule 8.4(g), which regulates professional misconduct, this article argues that ethics rules can, under certain conditions, offer an effective deterrent to exclusionary practices among legal actors. Part I examines the specific history, evolution, and application of revised ABA Model Rule 8.4(g). Part II delves into the ways that ethics rules in general, despite their …

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

Scholarship@WashULaw

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 …

Reflections On Breen & Strang's A Light Unseen: A History Of Catholic Legal Education In The United States, Angela C. Carmella

Journal of Catholic Legal Studies

(Excerpt)

In A Light Unseen: A History of Catholic Legal Education in the United States, Professor John Breen and Professor Lee Strang have undertaken a monumental task and have produced an impressive book, particularly with respect to the fascinating history of the development of Catholic legal education. They provide a thoughtful consideration of how Catholic law schools can be more distinctively Catholic and make a strong case for the critical need for more explicit curricular and scholarly integration of the Catholic intellectual tradition. In this Essay, I make suggestions in three areas: (1) on the record regarding failed efforts …

Avoiding Judicial Discipline, Veronica Root Martinez

Journal Articles

Over the past several years, several high-profile complaints have been levied against Article III judges alleging improper conduct. Many of these complaints, however, were dismissed without investigation after the judge in question removed themselves from the jurisdiction of the circuit’s judicial council—oftentimes through retirement and once through elevation to the Supreme Court. When judges—the literal arbiters of justice within American society—are able to elude oversight of their own potential misconduct, it puts the legitimacy of the judiciary and rule of law in jeopardy.

This Essay argues that it is imperative that mechanisms are adopted that will ensure investigations into judicial …

Still “Snowing” In The Sunshine State: An Analysis Of And Potential Solutions To The Lack Of Protection From Employer Retaliation For Florida Lawyers Who Adhere To The State’S Mandatory Reporting Of Professional Misconduct Rule, Jason A. Anon

FIU Law Review

No abstract provided.

Designing And Improving A System Of Proactive Management-Based Regulation To Help Lawyers And Protect The Public, Susan Saab Fortney

Susan S. Fortney

Increasingly, lawyers and decision-makers are recognizing the limitations and consequences of current approaches to attorney regulation. Inspired by developments in other countries, regulators in the United States and Canada have started the process of exploring innovative approaches, including proactive management-based regulation. The term, proactive-management regulation (PMBR), was first used by Professor Ted Schneyer to refer to a regulatory approach designed to promote ethical law practice by assisting lawyers with practice management.

The seed for PMBR was first planted in the Australian state of New South Wales (NSW). It grew out of the legislation that allowed limited liability and non-lawyer ownership …

Integrating "Alternative" Dispute Resolution Into Bankruptcy: As Simple (And Pure) As Motherhood And Apple Pie?, Nancy A. Welsh

Nancy Welsh

Today, there can be little doubt that “alternative” dispute resolution is anything but alternative. Nonetheless, many judges, lawyers (and law students) do not truly understand the dispute resolution processes that are available and how they should be used. In the shadow of the current economic crisis, this lack of knowledge is likely to have negative consequences, particularly in those areas of practice such as bankruptcy and foreclosure in which clients, lawyers, regulators, and courts work under pressure, often with inadequate time and financial resources to permit careful analysis of procedural options. Potential negative effects can include: (1) impairment of a …

Work Only We Can Do: Professional Responsibility In An Age Of Automation, Sherman J. Clark

South Carolina Law Review

No abstract provided.

Ahead Of His Time: Cardozo And The Current Debates On Professional Responsibility, Alberto Bernabe

Touro Law Review

No abstract provided.

In Re Discipline Of Reade, 133 Nev. Adv. Op. 87 (Nov. 16, 2017), Ronald Evans

Nevada Supreme Court Summaries

The Court determined that, in this instance, an attorney should be suspended for four years after said attorney violated RPC 8.4(b). The Court further held that SRC 102 does not permit the Court to impose financial sanctions on an attorney when the Court is already suspending said attorney.

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.

“The Lost Lawyer” Regained: The Abiding Values Of The Legal Profession, Robert Maccrate

Dickinson Law Review (2017-Present)

No abstract provided.

Rock, Paper, Scissors... Loot!, Michael Mogill

Nevada Law Journal Forum

As teachers, we always try to inspire our students. That inspiration can be kindled in many forums, whether in the classroom, our offices, our communities—or, more rarely, in front of an entire graduating class. This article reflects the remarks I delivered to my students, our graduating class, on such a rare occasion, now several years past. The genesis of my speech, a simple child’s game (one we all know), led me through the reflections I offered to the class of 2014 and now offer to a much larger audience. I began writing these remarks with a question in mind: What …

In Re Discipline Of Timothy Treffinger, 133 Nev. Adv. Op. 22 (May 11, 2017), Julia Barker

Nevada Supreme Court Summaries

The Court determined that (1) when a licensed Nevada attorney pleads guilty to a felony, Supreme Court Rule (SCR) 111 requires an interim suspension of the attorney’s law license and a referral to the Nevada State Bar for formal discipline; and (2) the “good cause” exception to stay an interim suspension requires the court to consider whether the attorney’s crime poses a danger to his clients, the court, and the public.

Is Bar Exam Failure A Harbinger Of Professional Discipline?, Jeffrey S. Kinsler

Law Faculty Scholarship

Two of the reasons students fail the bar exam are lack of diligence and incompetence; these are also the primary reasons attorneys are disciplined. Using bar exam and disciplinary data from Tennessee, this Article substantiates the following theses: (1) The more times it takes a lawyer to pass the bar exam the more likely that lawyer will be disciplined for ethical violations, particularly early in the lawyer’s career; and (2) The more times it takes a lawyer to pass the bar exam the more likely that lawyer will be disciplined for lack of diligence—including non-communication—and/or incompetence.

Protecting Access To The Great Writ: Equitable Tolling, Attorney Negligence, And Aedpa, Mandi R. Moroz

Georgia Law Review

Since the creation of the Antiterrorism and Effective
Death Penalty Act, attorneys have struggled to understand
and properly apply the Act's statute of limitations. As a
result, many attorneys have mistakenly filed federal
habeas petitions outside the Act's statute of limitations-
effectively barring their clients from federal court forever.
Attorneys who mistakenly misfile habeas petitions are left
with only one option: to request that the court equitably
toll the statute of limitations. While courts will not toll the
statute of limitations for mere negligence, courts are
divided on exactly what circumstances must exist before

allowing equitable tolling. Some courts require …

Get Real: Why And How Clinicians Should Record, Transcribe And Study Actual Client Consultations, Linda F. Smith

Utah Law Faculty Scholarship

This article will argue that the legal academy has much to learn by recording, transcribing and systematically studying student-client and attorney-client consultations. Clinical faculty can utilize conversation analysis and other social science techniques to do this. Social scientists and medical providers have studied doctor-patient conversations in this way over many years. Through this systematic study researchers have reached conclusions about effective doctor-patient consultations that form the basis for teaching these skills in medical school. This article will highlight some of these studies and their findings. Some have contended that attorney-client conversations simply cannot be recorded and studied in the same …

Designing And Improving A System Of Proactive Management-Based Regulation To Help Lawyers And Protect The Public, Susan Saab Fortney

Faculty Scholarship

Increasingly, lawyers and decision-makers are recognizing the limitations and consequences of current approaches to attorney regulation. Inspired by developments in other countries, regulators in the United States and Canada have started the process of exploring innovative approaches, including proactive management-based regulation. The term, proactive-management regulation (PMBR), was first used by Professor Ted Schneyer to refer to a regulatory approach designed to promote ethical law practice by assisting lawyers with practice management.

The seed for PMBR was first planted in the Australian state of New South Wales (NSW). It grew out of the legislation that allowed limited liability and non-lawyer ownership …

Family Defense And The Disappearing Problem-Solving Court, Jane M. Spinak

Faculty Scholarship

Problem-solving courts began to flourish in the early 1990s with the creation of criminal drug courts as alternatives to standard criminal court practices. In the drug courts, defendants would receive treatment rather than incarceration and be monitored closely within the court. Family Court Treatment Parts (FCTPs) were developed in the late 1990s in New York State, fully embracing the three key components of the problem-solving drug court model: (1) an activist judge who helps to fashion, and then closely monitor, dispositions; (2) a team of lawyers, social workers, and court personnel who try to identify and then work toward commons …

Breaking Bad Facts: What Intriguing Contradictions In Fiction Narratives Can Teach Lawyers About Coping With Harmful Evidence, Cathren Page

Cathren Page

Abstract: Breaking Bad Facts: What Intriguing Contradictions in Fiction Narratives Can Teach Lawyers About Coping with Harmful Evidence by Cathren Koehlert-Page Walter White is the “nerdiest old dude” that Jesse Pinkman knows. His students ignore him and whisper and laugh during class. They make fun of him at his after school job at the car wash where he is forced to stay late. His home décor and personal fashion could best be described as New American Pathetic. And yet by the end of the hit television series, Breaking Bad, White is a feared multi-million dollar drug lord known as Heisenberg. …

The Duty Of Confidentiality And The Attorney-Client Privilege: Sorting Out The Concepts, Grace M. Giesel

Grace M. Giesel

Professional Responsibility, Clark D. Cunningham

Clark D. Cunningham

No abstract provided.

Reasonable Accommodation As Professional Responsibility, Reasonable Accommodation As Professionalism, Alex B. Long

Scholarly Works

The American legal profession has been slow to remove the barriers that exclude individuals with disabilities. As a result, people with disabilities remain underrepresented in the practice of law. While the Americans with Disabilities Act prohibits employment discrimination and requires employers to provide reasonable accommodations for employees with disabilities, there remain significant barriers to employment for lawyers with disabilities. This Article argues that the legal profession should view the legal requirements of reasonable accommodation and equal employment opportunities for lawyers with disabilities as fundamental components of professional responsibility and professionalism.