Law Commons^™

The Search For Clarity In An Attorney's Duty To Google, Michael Thomas Murphy

All Faculty Scholarship

Attorneys have a professional duty to investigate relevant facts about the matters on which they work. There is no specific rule or statute requiring that an attorney perform an internet search as part of this investigation. Yet attorneys have been found by judges to violate a “Duty to Google” when they have failed to conduct an internet search for relevant information about, for example, a claim, their own client, and even potential jurors in a trial.

So much information is now available to attorneys so easily in electronic search results, it is time to wonder where, when, and how much …

Just And Speedy: On Civil Discovery Sanctions For Luddite Lawyers, Michael Thomas Murphy

All Faculty Scholarship

This article presents a theoretical model by which a judge could impose civil sanctions on an attorney - relying in part on Rule 1 of the Federal Rules of Civil Procedure - for that attorney’s failure to utilize time- and expense-saving technology.

Rule 1 now charges all participants in the legal system to ensure the “just, speedy and inexpensive” resolution of disputes. In today’s litigation environment, a lawyer managing a case in discovery needs robust technological competence to meet that charge. However, the legal industry is slow to adopt technology, favoring “tried and true” methods over efficiency. This conflict is …

When Bad Guys Are Wearing White Hats, Catherine A. Rogers

Catherine Rogers

Allegations of ethical misconduct by lawyers have all but completely overshadowed the substantive claims in the Chevron case. While both sides have been accused of flagrant wrongdoing, the charges against plaintiffs’ counsel appear to have captured more headlines and garnered more attention. The primary reason why the focus seems lopsided is that plaintiffs’ counsel were presumed to be the ones wearing white hats in this epic drama. This essay postulates that this seeming irony is not simply an example of personal ethical lapse, but in part tied to larger reasons why ethical violations are an occupational hazard for plaintiffs’ counsel …

In-House Counsel Beware!, Katrice Bridges Copeland

Fordham Urban Law Journal

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 …

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

Peter A. Holland

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 …

Gideon And The Effective Assistance Of Counsel: The Rhetoric And The Reality, David Rudovsky

All Faculty Scholarship

There is general agreement that the “promise” of Gideon has been systematically denied to large numbers of criminal defendants. In some cases, no counsel is provided; in many others, excessive caseloads and lack of resources prevent appointed counsel from providing effective assistance. Public defenders are forced to violate their ethical obligations by excessive case assignments that make it impossible for them to practice law in accordance with professional standards, to say nothing of Sixth Amendment commands. This worsening situation is caused by the failure of governmental bodies to properly fund indigent defense services and by the refusal of courts to …

When Bad Guys Are Wearing White Hats, Catherine A. Rogers

Journal Articles

Allegations of ethical misconduct by lawyers have all but completely overshadowed the substantive claims in the Chevron case. While both sides have been accused of flagrant wrongdoing, the charges against plaintiffs’ counsel appear to have captured more headlines and garnered more attention. The primary reason why the focus seems lopsided is that plaintiffs’ counsel were presumed to be the ones wearing white hats in this epic drama. This essay postulates that this seeming irony is not simply an example of personal ethical lapse, but in part tied to larger reasons why ethical violations are an occupational hazard for plaintiffs’ counsel …

Acting "A Very Moral Type Of God": Triage Among Poor Clients, Paul R. Tremblay

Paul R. Tremblay

No abstract provided.

The Story Of Mr. G.: Reflections Upon The Questionability Competent Client, Mark Spiegel

Mark Spiegel

No abstract provided.

Professionalism: The Deep Theory, Daniel R. Coquillette

Daniel R. Coquillette

Can our personal ethics and our professional ethics be in opposition? Our professional identity as lawyers is at the center of our personal morality. The legal profession is in crisis because we have lost sight of the deep theory of professionalism. This article focuses on our ultimate motivation for obeying rules, concentrating on three common categories: goal-based, rights-based, and duty-based theories. By examining these theories, the article argues that lawyers must turn away from the modern trend of goal instrumentalism and refocus legal practice on its humanistic roots.

The Relationship Between Defense Counsel, Policyholders, And Insurers: Nevada Rides Yellow Cab Toward "Two-Client" Model Of Tripartite Relationship. Are Cumis Counsel And Malpractice Claims By Insurers Next?, Jeffrey W. Stempel

Scholarly Works

It happens constantly in civil litigation. An insurance company hires a lawyer to defend its policyholder from a third party’s claim of injury. But just who is the lawyer’s “client?” Is it the policyholder who is the named defendant in the case and is “represented” in court proceedings? Or is it the insurer who, in most cases, selected the attorney, pays the attorney, supervises the litigation, and has (by the terms of the liability insurance policy) the right to settle the case, even over the objections of the policyholder? Ordinarily, the liability insurer has both the duty to defend a …

Lawyer Professional Responsibility In Litigation, Jeffrey W. Stempel

Scholarly Works

A perennially-vexing litigation issue concerns the limits of permissible attorney argument. More than a few lawyers have been tripped up by the occasional fuzziness of the line between aggressive advocacy and improper appeals to passion or prejudice. See Craig Lee Montz, Why Lawyers Continue to Cross the Line in Closing Argument: An Examination of Federal and State Cases, 28 Ohio N.U. L. Rev. 67 (2001-2002)(problem of violations results from lack of uniformity and clarity of ground rules as well as errors of counsel). In Cohen v. Lioce, 149 P.3d 916 (Nev. 2006) the Nevada Supreme Court both provided significant guidance …

The (F)Utility Of Rules: Regulating Attorney Conduct In Federal Court Practice, Judith A. Mcmorrow

Judith A. McMorrow

The problem is often decried: out-of-control attorneys, opportunists, cowboys, self-dealers, and overzealous prosecutors abusing the litigation process either for self-serving ends or from ideological zeal. But one person’s opportunist, cowboy, or self-dealer is another person’s zealous advocate. Lawyers want and need guidance on how to resolve issues that have competing claims to right behavior. The first place many lawyers look to find appropriate guidance are rules of ethics. Lawyers practicing in federal courts will find the search for rules particularly confusing. Unlike the Federal Rules of Civil and Criminal Procedure, federal courts do not operate with uniform ethics rules. District …

Possibilities For Collaborative Law: Ethics And Practice Of Lawyer Disqualification And Process Control In A New Model Of Lawyering, John M. Lande

Faculty Publications

This article assesses the possibilities for collaborative law (CL) to promote problem-solving negotiation and analyzes the operation and effect of the CL disqualification agreement (DA), which CL leaders hold as essential to the process. In CL, the lawyers and clients agree to negotiate from the outset of the case using a problem-solving approach. Under CL theory, the process creates a metaphorical "container" by using a DA disqualifying both lawyers from representing their clients if either party chooses to proceed in litigation. This article argues that much CL theory and practice is valuable, including protocols of early commitment to negotiation, interest-based …

"X-Spurt" Witnesses, Richard H. Underwood

Law Faculty Scholarly Articles

In this article the author pulls together a history of expert witnesses in common law systems. Various issues are explored regarding expert witness testimony, including: the historical underpinnings of the practice, how Daubert controls that issue in modern times, rules of evidence, psychological science, and professional ethics.

"Show And Tell": An Analysis Of The Scope Of The Attorney-Client Waiver Standards, Roberta M. Harding

Law Faculty Scholarly Articles

As today's society becomes increasingly litigious, document productions, a major discovery tool, are growing larger. One inevitable consequence of this phenomenon is the increased risk that communications protected by the attorney-client privilege may be inadvertently disclosed. Privileged communications may also be disclosed to an adversary under more questionable circumstances: specifically, the intentional, strategic disclosure of privileged information favorable to the disclosing party's position.

In any case involving the disclosure of privileged information, the court must initially decide whether the privilege is waived. To resolve this threshold issue courts apply one of the three waiver tests. If a court decides that …

Ethical Considerations For The Justice Department When It Switches Sides During Litigation, Clifford Freed

Seattle University Law Review

This Comment briefly discusses the history of Washington v. Seattle School District No. 1, and then demonstrates the difficulties in applying the present ABA Code of Professional Responsibility to certain ethical questions that can arise when the government changes its allegiance in the midst of litigation. The ethical propriety of the Department of Justice's actions is examined, and alternatives are proposed for situations in which the United States, represented in court by the Justice Department, switches sides in the same case.

Legal Ethics And Class Actions: Problems, Tactics And Judicial Responses, Richard H. Underwood

Law Faculty Scholarly Articles

Perhaps no procedural innovation has generated more controversy than the class action. As Professor Arthur Miller has observed, debate over “class action problem[s]” has raged at several different levels. For example, opponents and proponents of class actions disagree on whether such actions produce socially desirable results in an economical fashion and whether an already overburdened judiciary can handle the additional supervisory demands of the class action. Recently, a somewhat more ideological dialogue has addressed the merit of publicly funded class actions. Such questions arise only indirectly in the context of class action litigation. However, a certain hostility toward class actions …

Adversary Ethics: More Dirty Tricks, Richard H. Underwood

Law Faculty Scholarly Articles

In this article the author provides a primer on the more common forms of cheating employed by trial lawyers. Another purpose is to suggest that there are antidotes that may be administered to curb these abuses, assuming that trial attorneys are alert enough to invoke them, and trial judges are willing to apply them.

Curbing Litigation Abuses: Judicial Control Of Adversary Ethics—The Model Rules Of Professional Conduct And Proposed Amendments To The Rules Of Civil Procedure, Richard H. Underwood

Law Faculty Scholarly Articles

This Article addresses the effectiveness of recent developments and proposals related to abusive litigation, and discusses them in the context of recent opinions illustrating the power of the trial judge to control the excesses of the adversary system. It rejects the countersuit as a time-consuming and costly means of controlling litigation abuses, and concludes that “tinkering changes” in the rules of procedure cannot bring about true reform. It is urged here that the burden resulting from abuse of litigation can only be relieved by changes which foster stronger judicial control of adversarial ethics, and greater judicial involvement in the pretrial …