Law Commons^™

Buying Voice: Financial Rewards For Whistleblowing Lawyers, Nancy J. Moore, Kathleen Clark

Nancy J Moore

“Buying Voice: Financial Incentives for Whistleblowing Lawyers”

Kathleen Clark and Nancy J. Moore

Abstract

The federal government relies increasingly on whistleblowers to ferret out fraud, and has awarded whistleblowers over $4 billion under the False Claims Act and the Dodd-Frank Wall Street reform and Consumer Protection Act. May lawyers ethically seek whistleblower rewards under these federal statutes? A handful of lawyers have tried to do so as FCA qui tam relators. They have not yet succeeded, but several court decisions suggest that they might be able to do so under confidentiality exceptions to state ethics law, which several courts have …

Lost In The Compromise: Free Speech, Criminal Justice, And Attorney Pretrial Publicity, Margaret Tarkington

Margaret C Tarkington

Publicity by the prosecution and defense in the criminal proceedings against George Zimmerman again raised the question of the appropriate scope of First Amendment protection for attorney pretrial publicity. The Supreme Court, the Model Rules of Professional Conduct, and many scholars have viewed restrictions on attorney pretrial publicity as a compromise between the constitutional guarantees of free speech and a fair trial. Nevertheless, scholars advocate widely divergent levels of free speech protection for attorney pretrial publicity—ranging from core free speech protection to extremely limited protection. Traditional First Amendment doctrines fail to elucidate the proper scope of free speech rights for …

The Duty To Advise The Lorax: Environmental Advocacy And The Risk Of Reform, Keith Rizzardi

Keith Rizzardi

Lawyers have an ethical duty to advise their clients on moral, economic, social and political matters. When applied to the changing field of environmental law, this abstract notion becomes provocative. Lawyers should advise their environmental advocacy clients of the possibility that their efforts to apply statutes or rules might initially succeed, but subsequent legislative reactions might defund, reform or repeal the laws the client’s case relied upon. As a client’s sophistication decreases, or as the risk of adverse reactions to the client’s environmental advocacy increases, the lawyer’s duty to advise the client of these risks can shift from discretionary to …

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

Andrew E. Taslitz

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 to …

Professional Responsibility Compliance And National Security Attorneys: Adopting The Normative Framework Of Internalized Legal Ethics, Keith A. Petty

Keith A. Petty

In 2010, a Department of Justice report cleared the authors of the infamous “torture memos” of professional misconduct, but was highly critical of their application of ethical norms. This episode underscores the lack of clarity in professional responsibility obligations of government legal advisors. While methods such as identifying the client and defining the role of the attorney have been used to facilitate adherence to ethical norms, evidence demonstrates that these approaches fail to overcome external pulls from ethical compliance during times of crisis.

This article argues that ethical compliance failures by government legal advisors call for a fundamental reexamination of …

Tax Lawyers, Tax Defiance, And The Ethics Of Casual Conversation, Michael Hatfield

Michael Hatfield

Tax Lawyers, Tax Defiance, and the Ethics of Casual Conversation Tax lawyers routinely navigate politically-charged waters when a tax topic is dropped into conversation. Increasingly, however, tax lawyers are confronted with comments that undermine the authority of the federal tax system itself. These comments may take several forms, including arguments that the income tax is unconstitutional. Regardless of form, this rhetoric differs from legitimate criticisms of the tax system because it encourages non-compliance as either a moral right or a political good . In the current environment, the tax bar should take up the call to be public educators with …

Tax Lawyers, Tax Defiance, And The Ethics Of Casual Conversation, Michael Hatfield

Michael Hatfield

Tax Lawyers, Tax Defiance, and the Ethics of Casual Conversation ABSTRACT Tax lawyers routinely navigate politically-charged waters when a tax topic is dropped into conversation. Increasingly, however, tax lawyers are confronted with comments that undermine the authority of the federal tax system itself. These comments may take several forms, including arguments that the income tax is unconstitutional. Regardless of form, this rhetoric differs from legitimate criticisms of the tax system because it encourages non-compliance as either a moral right or a political good. In the current environment, the tax bar should take up the call to be public educators with …

(Unfair) Advantage: Damocles’ Sword And The Coercive Use Of Immigration Status In A Civil Society, David P. Weber

David P Weber

This article argues that the coercive use of immigration status or “status coercion” in civil proceedings and negotiations is fundamentally unethical and potentially illegal. For attorneys attempting to take advantage of unauthorized immigration status, such conduct very likely violates an attorney's ethical obligations under the Rules of Professional Responsibility and wrongfully takes advantage of an overly vulnerable population. For the judiciary, the article argues for a more proactive approach in maintaining the perception of fairness and justice in civil proceedings for all parties, regardless of immigration status. Additionally, for both legal and lay persons, status coercion may constitute the crime …

(Unfair) Advantage: Damocles’ Sword And The Coercive Use Of Immigration Status In A Civil Society, David P. Weber

David P Weber

This article argues that the coercive use of immigration status or “status coercion” in civil proceedings and negotiations is fundamentally unethical and potentially illegal. For attorneys attempting to take advantage of unauthorized immigration status, such conduct very likely violates an attorney's ethical obligations under the Rules of Professional Responsibility and wrongfully takes advantage of an overly vulnerable population. For the judiciary, the article argues for a more proactive approach in maintaining the perception of fairness and justice in civil proceedings for all parties, regardless of immigration status. Additionally, for both legal and lay persons, status coercion may constitute the crime …

Averting The Captain Vere “Veer”: Billy Budd As Melville’S Republican Response To Plato, Robert E. Atkinson

Robert E. Atkinson Jr.

This article shows how Melville’s Billy Budd, rightly one of law and literature’s most widely studied canonical texts, answers Plato’s challenge in Book X of the Republic: Show how “poets” create better citizens, especially better rulers, or banish them from the commonwealth of reasoned law. Captain Vere is a flawed but instructive version of the Republic’s philosopher-king, even as his story is precisely the sort of “poetry” that Plato should willing allow, by his own republican principles, into the ideal polity. Not surprisingly, the novella shows how law’s agents must be wise, even as their law must be philosophical, if …

Assessing The Foundations Of Neo-Classical Professionalism In Law And Business: Remodeling The Temple, Phase I, Robert E. Atkinson

Robert E. Atkinson Jr.

Both the management of private enterprise and the practice of corporate law must be radically remodeled if they are properly to serve their correlate values: prosperity and justice. In that remodeling, the cornerstone of professional status would be appreciation of the deepest values of our common culture, gained through liberal education in the humanities and social sciences. Lawyers and managers need this appreciation because, under the best available institutional arrangements, they together must actively shape our public world, both in the law and in the market, for the common welfare.

The professional’s requisite cultural appreciation has two essential components, one …

Completing Caperton And Clarifying Common Sense Through Using The Right Standard For Constitutional Judicial Recusal, Jeffrey W. Stempel

Jeffrey W Stempel

In Caperton v. A.T. Massey Coal Co., Inc., the U.S. Supreme Court vacated a state supreme court decision in which a justice who had received $3 million in campaign support from a company CEO cast the deciding vote to relieve the company of a $50 million liability. The Caperton majority adopted a “probability of bias” standard for constitutional due process review of judicial disqualification decisions that differs from the ordinary “reasonable question as to impartiality” standard for recusal. Four dissenters objected to the majority’s limited supervision of state court disqualification practice, minimized the danger of biased judging presented by the …

Chief William's Ghost: The Problematic Persistance Of The Duty To Sit, Jeffrey W. Stempel

Jeffrey W Stempel

In 1974, the duty to sit -- a doctrine positing that judges should recuse themselves only if the case for disqualification was compelling -- was abolished in federal courts. Then-Justice William Rehnquist's refusal to disqualify himself in Laird v. Tatum (1972) was a partial catalyst in this legal reform, which was consistent with the ABA position on the duty to sit, at least in what I term it's "pernicious" form. Notwithstanding the official abolition of the doctrine, it continues to be invoked, as does the problematic Rehnquist opinion defending his indefensible refusal to recuse in Laird v. Taturm. This article …

"Let's Do The Time Warp Again": Assessing The Competence Of Counsel In Mental Health Conservatorship Proceedings, Grant H. Morris

Grant H Morris

Thirty years ago, I wrote an article on mental health conservatorships in California and the role of counsel for persons for whom a conservatorship has been proposed. Data was gathered on the performance of attorneys in court hearings conducted in San Diego County Superior Court. The data revealed that lawyers representing proposed conservatees were inactive and ineffective in representing their clients’ interests. The lawyers did not consider themselves advocates in an adversary process in which conservatorship was to be avoided. A year after the article was published, the California Supreme Court, citing that article as authority for the “paternalistic attitude” …

Pro Bono Publico As A Conscience Good, Deborah A. Schmedemann

Deborah Schmedemann

Pro bono work performed by American lawyers serves a critical role in the American civil justice system. This paper seeks to explain pro bono through the lens of social science research into volunteering, in particular the economic concept of a conscience good. The paper presents the results of an empirical study involving over 1,100 law students and lawyers. The results include data on lawyers’ motivations to perform pro bono, the impact of various pro bono rules and invitations to perform pro bono, the satisfactions of pro bono work, emotions triggered by pro bono work and pro bono clients, and the …

Pro Bono Publico As A Conscience Good, Deborah A. Schmedemann

Deborah Schmedemann

Pro bono work performed by American lawyers serves a critical role in the American civil justice system. This paper seeks to explain pro bono through the lens of social science research into volunteering, in particular the economic concept of a conscience good. The paper presents the results of an empirical study involving over 1,100 law students and lawyers. The results include data on lawyers’ motivations to perform pro bono, the impact of various pro bono rules and invitations to perform pro bono, the satisfactions of pro bono work, emotions triggered by pro bono work and pro bono clients, and the …

Protecting Consumers: Attorney Ethics And The Law Governing Lawyers, Christopher M. Fairman

Christopher M Fairman

No abstract provided.

Ethics And Collaborative Lawyering: Why Put Old Hats On New Heads?, Christopher M. Fairman

Christopher M Fairman

No abstract provided.

Defining Capacity: The Competing Interests Of Autonomy And Need, Nancy J. Knauer

Nancy J. Knauer

This Essay addresses the question of capacity - the basic threshold determination that pervades all areas of the law. An individual must have the requisite level of capacity to consent to sex, refuse medical treatment, enter into a contract, marry, divorce, relinquish parental rights, execute a will, make a gift, donate organs, vote, serve on a jury, stand trial, and even to hire a lawyer. The standards regulating determinations of capacity are not monolithic. An individual may lack the capacity to contract, but may have the requisite capacity to write a will or to refuse life-sustaining medical treatment. As individuals, …