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Legal Ethics and Professional Responsibility

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Articles 691 - 720 of 1247

Full-Text Articles in Health Law and Policy

Shoot Out At The Not-O.K. Corral Or Privileged Client Communications - Lost And Found In Texas., Walter W. Steele Jr. Jan 2002

Shoot Out At The Not-O.K. Corral Or Privileged Client Communications - Lost And Found In Texas., Walter W. Steele Jr.

St. Mary's Law Journal

Texas’s solutions to inadvertently disclosed privileged material are unworkable. Confidentiality of client information is a bedrock of the legal profession. Nonetheless, some confidential information invariably leaks out. The most common leak occurs when a lawyer inadvertently includes privileged material in boxes of documents produced in response to a legitimate discovery request. After the opposing lawyer finds the “hot documents” in the box, the problems begin. The Texas Supreme Court adopted what amounts to the reasonable precautions test in Granada Corp. v. First Court of Appeals. The cornerstone of the Granada holding is the involuntary nature of the production of the …

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Proposed Conflict Of Interest And Confidentiality Rules., Luther H. Soules Iii Jan 2002

Proposed Conflict Of Interest And Confidentiality Rules., Luther H. Soules Iii

St. Mary's Law Journal

The Texas Supreme Court and the State Bar of Texas should fully adopt the proposals to the Rules of Professional Conduct 1.05–1.13 addressing attorney confidentiality and conflicts of interest. Historically, the Rules of Professional Conduct have set a floor which a lawyer may be subject to discipline, the Rules, however, do not offer bright lines for deciding questions of law, ethics, or fairness. Because the rules of professional responsibility in the legal industry are ambiguous in nature and often encumber a lawyer’s ability to effectively represent clients, the Texas Disciplinary Rules Committee recommends modification to the Rules of Professional Conduct …

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Standards Of Review In Texas., W. Wendell Hall Jan 2002

Standards Of Review In Texas., W. Wendell Hall

St. Mary's Law Journal

Abstract Forthcoming.

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Doctrine Of Equivalents: Is Festo The Right Decision For The Biomedical Industry., Faith S. Fillman Jan 2002

Doctrine Of Equivalents: Is Festo The Right Decision For The Biomedical Industry., Faith S. Fillman

St. Mary's Law Journal

The doctrine of equivalents, which Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co. threatens to overturn, is an equitable doctrine and should therefore provide patentees and competitors equal and fair protection. Prior to Festo, the Federal Circuit used two approaches: the complete bar rule and the flexible bar rule. Under the complete bar rule, the author must completely copy the patented art for infringement to occur, this is otherwise known as literal infringement. In contrast, under the flexible bar rule, infringement can occur if the product is closely related to the prior art. Federal Circuits have officially adopted the complete …

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Trust And Betrayal In The Medical Marketplace, Maxwell Gregg Bloche Jan 2002

Trust And Betrayal In The Medical Marketplace, Maxwell Gregg Bloche

Georgetown Law Faculty Publications and Other Works

The author argues in this Comment that disingenuity as first resort is an unwise approach to the conflict between our ex ante and our later, illness-endangered selves. Not only does rationing by tacit deceit raise a host of moral problems, it will not work, over the long haul, because markets reward deceit's unmasking. The honesty about clinical limit-setting that some bioethicists urge may not be fully within our reach. But more candor is possible than we now achieve, and the more conscious we are about decisions to impose limits, the more inclined we will be to accept them without experiencing …

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Are Medical Ethics Different From Legal Ethics?, Mervin H. Needell Jan 2001

Are Medical Ethics Different From Legal Ethics?, Mervin H. Needell

St. Thomas Law Review

In this paper I shall compare and contrast some relevant ethical positions of legal and medical precepts and practices which seem to suggest or predispose to a professional bias. I derive these conclusions from official positions contained in institutional accounts, such as case law or treatises. Even if such comparisons do not make a convincing case for professional bias, they should still provide some insight into the ways in which the thought processes of lawyers and doctors do or do not differ. Although the words "moral" and "ethical" are often used interchangeably, if a distinction must be made here, I …

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Fair Labor Standards Act And Sovereign Immunity: Unlocking The Courthouse Door For Texas State Employees., Melinda Herrera Jan 2001

Fair Labor Standards Act And Sovereign Immunity: Unlocking The Courthouse Door For Texas State Employees., Melinda Herrera

St. Mary's Law Journal

Unless Texas expressly waives its Eleventh Amendment sovereign immunity, its state employees will not have similar legal recourse and protection as those available to private employees. As in many other states, a party may not sue the State of Texas without its consent. Thus, in the absence of constitutional or statutory provisions to the contrary, a state may claim sovereign immunity against any suit brought by a private party in both federal and state court. As a result, the Eleventh Amendment effectively precludes private individuals from suing a state in both federal and state court for violating a federal statute …

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Regulation Fd: Sec Reestablishes Enforcement Capabilities Over Selective Disclosure., John P. Jennings Jan 2001

Regulation Fd: Sec Reestablishes Enforcement Capabilities Over Selective Disclosure., John P. Jennings

St. Mary's Law Journal

This Recent Development focuses on the potential effects Regulation Fair Disclosure (FD) will have on the participants in the American capital market and on the stock markets themselves. Congress and the Securities Exchange Commission (SEC) seek to achieve confidence in the integrity and fairness of the American stock market and protection of investors from fraud by promoting equal opportunities for investors. In order to maintain a competitive edge, vis-à-vis its foreign counterparts, the United States must continually refine its financial systems to maximize fairness and integrity. This Recent Development focuses on selective disclosure—allowing a limited segment of investors access to …

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Reining In Property Owners' Associations' Power: Texas's Need For A Comprehensive Plan., Karen Ellert Pena Jan 2001

Reining In Property Owners' Associations' Power: Texas's Need For A Comprehensive Plan., Karen Ellert Pena

St. Mary's Law Journal

Abstract Forthcoming.

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Vultures And Lambs: A Journey Through Protective Services For The Texas Elderly., Christopher J. Pettit Jan 2001

Vultures And Lambs: A Journey Through Protective Services For The Texas Elderly., Christopher J. Pettit

St. Mary's Law Journal

The Texas system leaves the elderly and disabled vulnerable to financial vultures. Despite guardianship and pre-planning processes meant to empower elderly and disabled Texans to choose who shall manage their affairs, the Texas system may give a financial vulture access to the elderly or disabled’s accounts. Texas agencies such as Adult Protective Services’ purpose is to stop the abuse of the elderly, however, the agency is sometimes used as a tool to circumvent the stated wishes of an elderly person. For example, a person seeking to exploit an elderly person may do so by simply filing charges with Adult Protective …

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The Intersection Of Law And Medicine Legal Ethics In Medicine: Foreword, Kathy L. Cerminara Jan 2001

The Intersection Of Law And Medicine Legal Ethics In Medicine: Foreword, Kathy L. Cerminara

St. Thomas Law Review

Foreword: The Intersection of Law and Medicine by Kathy L. Cerminara.

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Making Clinical Trials Safer For Human Subjects, Michael S. Baram Jan 2001

Making Clinical Trials Safer For Human Subjects, Michael S. Baram

Faculty Scholarship

Clinical trials, in which new biotech and other medical products are tested on human subjects, provide much of the data used by the FDA to determine whether the products are suitable for routine use in health care. Thus, the trials are of obvious importance to medical progress and improvement of public health, and to those who have career and financial interests at stake. But clinical trials are also important to the human subjects involved because the products being tested on them may remedy their illnesses, but may also pose risks since the products have usually not been previously tested on …

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Health Care Ethics Experts In Canadian Courts, Jocelyn Downie Jan 2001

Health Care Ethics Experts In Canadian Courts, Jocelyn Downie

Articles, Book Chapters, & Popular Press

In this paper, I will first describe the traditional approach to the use of experts in Canadian courts. Then I will consider whether, on this approach, health care ethics experts should be permitted to testify in Canadian courts. I will argue that they should be permitted to testify but caution should be exercised by the courts, the parties, and the experts themselves. The objective of the paper is to highlight the strengths and raise some concerns about the weaknesses of a practice that appears to be growing, so that the potential harmful consequences might be anticipated, problems with the practice …

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Does The Individuals With Disabilities Education Act Exclude Gifted And Talented Children With Emotional Disabilities - An Analysis Of J.D. V. Pawlet., Laura Ketterman Jan 2001

Does The Individuals With Disabilities Education Act Exclude Gifted And Talented Children With Emotional Disabilities - An Analysis Of J.D. V. Pawlet., Laura Ketterman

St. Mary's Law Journal

Disabled children benefit from federal legislation which guarantees a free, appropriate education. While no federal mandate requires providing special education for gifted and talented children, the government encourages schools to offer gifted and talented programs. Gifted and talented children with emotional disabilities, however, often fall between these two groups and do not qualify for special education under any legislation. Unfortunately, in many gifted and talented children with disabilities the gift hides the disability—or the disability hides the gift. To compound the problem, legislation and recent court decisions fail to recognize that gifted and talented children have unique needs which should …

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Has The Fog Cleared - Attorney Work Product And The Attorney-Client Privilege: Texas's Complete Transition Into Full Protection Of Attorney Work In The Corporate Context., Fred A. Simpson Jan 2001

Has The Fog Cleared - Attorney Work Product And The Attorney-Client Privilege: Texas's Complete Transition Into Full Protection Of Attorney Work In The Corporate Context., Fred A. Simpson

St. Mary's Law Journal

The following discussion in this Article fills the gaps in the substantive rules surrounding the attorney work product doctrine and the attorney-client privilege, thereby encouraging practitioners to utilize these tools more freely. Initially, the attorney-client privilege contemplated application only to individuals. As the rule developed in the United States, however, the scope of the privilege broadened until it included corporations. Since 1982, Texas has provided for the attorney-client privilege in Texas Rule of Civil Evidence 503.149. Notably, the Rule defined client in such a way as to include a corporation. Unlike the attorney-client privilege, the work product doctrine developed much …

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No Taxation Without Realization: Srivastava V. Commissioner, The Fifth Circuit's Answer To Tax Treatment Of Attorney's Fees Under A Contingency Fee Agreement., Bernard J. Grant Iii Jan 2001

No Taxation Without Realization: Srivastava V. Commissioner, The Fifth Circuit's Answer To Tax Treatment Of Attorney's Fees Under A Contingency Fee Agreement., Bernard J. Grant Iii

St. Mary's Law Journal

Abstract Forthcoming.

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Jury Erosion: The Effects Of Robinson, Havner, & (And) Gammill On The Role Of Texas Juries., Ricky J. Poole, Kimberly S. Keller Jan 2001

Jury Erosion: The Effects Of Robinson, Havner, & (And) Gammill On The Role Of Texas Juries., Ricky J. Poole, Kimberly S. Keller

St. Mary's Law Journal

Abstract Forthcoming.

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Attorney Referral For Medical Treatment: A Wolf In Disguise., Martin J. Phipps Jan 2001

Attorney Referral For Medical Treatment: A Wolf In Disguise., Martin J. Phipps

St. Mary's Law Journal

Texas attorneys should be obligated to disclose whether they referred their client to a pre-selected physician. Plaintiff attorneys, however, have been allowed to withhold this information from the court arguing the information is privileged. The practice of using a pre-selected physician is unethical and unfairly prejudicial. If the attorney and physician have an agreement, the attorney is likely to send numerous clients to that specific physician in order to receive a discount. The physician in turn is likely to recommend medically unnecessary procedures in order to inflate money damages. Therefore, in order to prevent potential abuse between the attorney-physician relationship, …

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Getting It Right From The Beginning: A Critical Examination Of Current Criminal Defense In Texas And Proposal For A Statewide Public Defender System., Rebecca Copeland Jan 2001

Getting It Right From The Beginning: A Critical Examination Of Current Criminal Defense In Texas And Proposal For A Statewide Public Defender System., Rebecca Copeland

St. Mary's Law Journal

Abstract Forthcoming.

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Religion In Public Schools: Let Us Pray - Or Not., Carolyn Hanahan, David M. Feldman Jan 2001

Religion In Public Schools: Let Us Pray - Or Not., Carolyn Hanahan, David M. Feldman

St. Mary's Law Journal

This Essay addresses judicial interpretation and application of the religious protections of students in public schools. Part II addresses the evolution of the law governing prayer in public schools, including the creation of judicial tests utilized in determining whether a school district has impeded the rights of students in the area of religion. Part III examines the application of these tests to various activities, including a discussion of the disparity in judicial interpretation with respect to the permissibility of prayer at public school functions. This Essay concludes with a discussion analyzing the effect of the recent United States Supreme Court …

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Those Dangerous Student Prayers., Kelly J. Coghlan Jan 2001

Those Dangerous Student Prayers., Kelly J. Coghlan

St. Mary's Law Journal

Abstract Forthcoming.

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Parental Rights In The Twenty-First Century: Parents As Full Partners In Education., Linda L. Schlueter Jan 2001

Parental Rights In The Twenty-First Century: Parents As Full Partners In Education., Linda L. Schlueter

St. Mary's Law Journal

Abstract Forthcoming.

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Interpreting Mineral And Royalty Deeds: The Legacy Of The One-Eighth Royalty And Other Stories., Laura H. Burney Jan 2001

Interpreting Mineral And Royalty Deeds: The Legacy Of The One-Eighth Royalty And Other Stories., Laura H. Burney

St. Mary's Law Journal

Mineral and royalty deeds are notoriously difficult to interpret. Courts complicate the interpretive process in at least two ways. First, they produce opinions that fail to appreciate and explain unique oil and gas concepts. Second, they render deed records unreliable. A variety of title problems flow from this instability. However, a common trait is frequently encountered: the influence of the one-eighth royalty provision typically used for decades in oil and gas leases. Unfortunately, courts have failed to acknowledge this influence. For this reason, title litigation will continue to loom under the legacy of the one-eighth royalty, and title examiners will …

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Internet Property Rights: E-Trespass., John D. Saba Jr. Jan 2001

Internet Property Rights: E-Trespass., John D. Saba Jr.

St. Mary's Law Journal

Plaintiffs whose Internet property rights were violated have depended on the common law tort of trespass to chattels. Plaintiffs in Thrifty-Tel, Inc. v. Bezenek and CompuServe Inc. v. Cyber Promotions, Inc. successfully argued defendants trespassed their chattels. In Thrifty-Tel, defendants hacked into plaintiff’s system to obtain long-distance access codes. The court reasoned that electronic signals were tangible and indirect interference in the form of electronic trespass could support a claim for trespass to chattels. In CompuServe Inc., defendants used plaintiff's internet server to send out mass emails to plaintiff’s clients. The court upheld a permanent injunction holding that electronic signals …

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Class Dismissed: The Conservative Class Action Revolution Of The Texas Supreme Court., Russell T. Brown Jan 2001

Class Dismissed: The Conservative Class Action Revolution Of The Texas Supreme Court., Russell T. Brown

St. Mary's Law Journal

Historically, Texas plaintiffs enjoyed tremendous flexibility in gaining certification for class action lawsuits because of a liberal approach employed by Texas trial courts. Because certification assignment occurred early in the judicial proceedings, Texas case law encouraged trial courts to grant certification of a class. Putative classes chose to seek relief in state court because of the state’s lax view regarding class actions, particularly when compared to federal courts. Concerns arose throughout Texas about the growing liberal methodology courts used to evaluate putative classes during certification. Federal influence, state lobbies, and legislative pressure led the Texas judiciary, through application of the …

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Does Community Notification For Sex Offenders Violate The Eighth Amendment's Prohibition Against Cruel And Unusual Punishment - A Focus On Vigilantism Resulting From Megan's Law., Alex B. Eyssen Jan 2001

Does Community Notification For Sex Offenders Violate The Eighth Amendment's Prohibition Against Cruel And Unusual Punishment - A Focus On Vigilantism Resulting From Megan's Law., Alex B. Eyssen

St. Mary's Law Journal

Community notification of a sex offender’s presence may be violating the Eighth Amendment’s protection from Cruel and Unusual Punishment. Under Megan’s Law and other sex offender registration statutes, individuals that have completed a prison sentence for a sex crime may have to register as a sex offender. The information of the individual including his name, address, physical description, date of birth, social security number, employer, offense, and picture, is publicly disseminated. As an unintended consequence, individuals who have served their time may have to suffer additional punishment in the form of harassment, vigilantism, and violence.

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Taas And Gi Forum V. Texas Education Agency: A Critical Analysis And Proposal For Redressing Problems With The Standardized Testing In Texas., Blakely Latham Fernandez Jan 2001

Taas And Gi Forum V. Texas Education Agency: A Critical Analysis And Proposal For Redressing Problems With The Standardized Testing In Texas., Blakely Latham Fernandez

St. Mary's Law Journal

Texas’s use of the Texas Assessment of Academic Skills (TAAS) test as an accountability program has had numerous negative and far-reaching effects on minorities. Today, students in Texas public schools first take the TAAS test in the third grade. Students continue to take a form of the TAAS test each year, with the exit-level assessment initially given in the eleventh grade. Students must pass all four sections–Mathematics, English, Science, and Social Studies–in order to graduate and receive their high school diploma. Although devised to effectively motivate students, schools, and teachers with the goal of enhancing educational standards, the TAAS test …

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Bridging The Analytical Gap: The Gammill Alternative To Overcoming Robinson & (And) Havner Challenges To Expert Testimony., Kimberly S. Keller Jan 2001

Bridging The Analytical Gap: The Gammill Alternative To Overcoming Robinson & (And) Havner Challenges To Expert Testimony., Kimberly S. Keller

St. Mary's Law Journal

Abstract Forthcoming.

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The Spanish Predominant Language Ordinance: Is Spanish On The Way In And English On The Way Out., Adriana Resendez Jan 2001

The Spanish Predominant Language Ordinance: Is Spanish On The Way In And English On The Way Out., Adriana Resendez

St. Mary's Law Journal

El Cenizo's Spanish language ordinance is likely to survive a constitutional challenge. The City Council of El Cenizo’s Spanish language ordinance, however, has generated a significant amount of controversy in the United States. The ordinance stipulates that all city council meetings will be made in the city’s predominant language—Spanish. Critics argue that the ordinance has made Spanish the official language. Critics also argue that the ordinance is discriminatory toward English speakers. English only advocacy groups, such as English First and U.S. English, argue that the ordinance will create a trend across the United States of immigrants refusing to embrace an …

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Heci V. Neel: Application Of The Discovery Rule To Damages Arising Out Of Oil And Gas Leases., L. Melanie Martin Jan 2001

Heci V. Neel: Application Of The Discovery Rule To Damages Arising Out Of Oil And Gas Leases., L. Melanie Martin

St. Mary's Law Journal

Texas landowners face a heavy burden in bringing claims for damages arising out of inherently undiscoverable damages to mineral estates because the statute of limitations starts at the time of injury rather than the time of discovery. Previously, courts adopted the discovery rule as an exception to the statute of limitations, effectively stalling the starting point of the statute of limitations. A two-pronged threshold inquiry is held before the application of the discovery rule. First, the court must determine if the injury is inherently undiscoverable or not detected despite the use of due diligence. Secondly, there must be objectively verifiable …

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