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Legal Ethics and Professional Responsibility

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Full-Text Articles in Jurisprudence

Philosophical Legal Ethics: Ethics, Morals, And Jurisprudence, Katherine R. Kruse Jan 2011

Philosophical Legal Ethics: Ethics, Morals, And Jurisprudence, Katherine R. Kruse

Scholarly Works

The authors and moderator David Luban participated in a plenary session of the International Legal Ethics Conference IV, held at Stanford. Each author answered and discussed questions arising from short papers they had written about the principal concern of legal ethics was the morality of lawyers, the morality of clients, or the morality of laws.

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Engaged Client-Centered Representation And The Moral Foundations Of The Lawyer-Client Relationship, Katherine R. Kruse Jan 2011

Engaged Client-Centered Representation And The Moral Foundations Of The Lawyer-Client Relationship, Katherine R. Kruse

Scholarly Works

The field of legal ethics, as we know it today, has grown out of thoughtful, systematic grounding of lawyers’ duties in a comprehensive understanding of lawyers’ roles and the situating of lawyers’ roles in underlying theories of law, morality, and justice. Unfortunately, in the process, the field of theoretical legal ethics has mostly lost track of the thing that Freedman insisted was at the heart of a lawyers’ role: the integrity of the lawyer-client relationship. As I will discuss, the field of theoretical legal ethics has developed in ways that are deeply lawyer-centered rather than fundamentally client-centered. I am going …

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H. L. A. Hart’S Moderate Indeterminacy Thesis Reconsidered: In Between Scylla And Charybdis?, Imer Flores Jan 2011

H. L. A. Hart’S Moderate Indeterminacy Thesis Reconsidered: In Between Scylla And Charybdis?, Imer Flores

Georgetown Law Faculty Publications and Other Works

In this article, in the context of the fiftieth anniversary of H. L. A. Hart’s The Concept of Law, The author reconsiders the moderate indeterminacy of law thesis, which derives from the open texture of language. For that purpose, the author intends: first, to analyze Hart’s moderate indeterminacy thesis, i.e. determinacy in “easy cases” and indeterminacy in “hard cases,” which resembles Aristotle’s “doctrine of the mean”; second, to criticize his thesis as failing to embody the virtues of a center in between the vices of the extremes, by insisting that the exercise of discretion required constitutes an “interstitial” legislation; …

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The Constitutionality Of Collateral Post-Conviction Claims Of Actual Innocence Comment., Craig M. Jacobs Jan 2011

The Constitutionality Of Collateral Post-Conviction Claims Of Actual Innocence Comment., Craig M. Jacobs

St. Mary's Law Journal

The notion that the state can punish innocent people disrupts public confidence in the usefulness of the criminal justice system. If, by legislative design, the criminal justice system is not concerned with or is accepting of situations where innocent people are punished by the state, should courts take immediate action? Once criminal defendants exhaust the appellate process, Supreme Court Justices have stated, federal courts should not hear claims of actual innocence. Such statements are supported by the federal habeas corpus statute as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). AEDPA requires federal habeas courts to …

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Respecting The Concept And Limited Liability Of A Series Llc In Texas Comment., Bernie R. Kray Jan 2011

Respecting The Concept And Limited Liability Of A Series Llc In Texas Comment., Bernie R. Kray

St. Mary's Law Journal

The primary advantage of a limited liability company (LLC) is to shield owners from personal liability for the contract and tort obligations of their business entities. To further protect business assets, practitioners often advised clients to form multiple LLCs, each containing single assets. Yet, business owners managing multiple assets and LLCs often found this approach ineffective and cost-prohibitive. Allowing for a single “master” LLC to compartmentalize different series of properties without the need for a distinct holding company, the “series” LLC was the next step. The series LLC permits companies to partition assets and liabilities among various cells or “series,” …

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Texas Civil Practice & Remedies Code Sec. 41.0105: A Time For Clarification Comment., April Y. Quinones Jan 2011

Texas Civil Practice & Remedies Code Sec. 41.0105: A Time For Clarification Comment., April Y. Quinones

St. Mary's Law Journal

The language of the Texas Civil Practice and Remedies Code § 41.0105 is by no means clear. Most Texas practitioners refer to it as the “paid-or-incurred statute.” This is due to the statue stating that recovery of medical or health care expenses are limited to the amount actually paid or incurred by or on behalf of the claimant. Yet, Texas trial lawyers and judges are perplexed by what the statute truly means. Causing further concern, most Texas practitioners do not appear to understand how the statute should be applied. At the center of the debate lies the collateral-source rule and …

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Congress's Consistent Intent To Utilize Military Commissions In The War Against Al-Qaeda And Its Adoption Of Commission Rules That Fully Comply With Due Process., Michael T. Mccaul, Ronald J. Sievert Jan 2011

Congress's Consistent Intent To Utilize Military Commissions In The War Against Al-Qaeda And Its Adoption Of Commission Rules That Fully Comply With Due Process., Michael T. Mccaul, Ronald J. Sievert

St. Mary's Law Journal

Congress responded to the terrorist attack of September 11, 2001 by passing the Authorization for the Use of Military Force (AUMF). In the following years Congress augmented that authority with the Military Commissions Act of 2006 (MCA of 2006) and the Military Commissions Act of 2009 (MCA of 2009). In passing these acts, Congress responded to the Supreme Court’s decision in Hamdan v. Rumsfeld, which found that President Bush’s attempt to establish military commissions required Congressional authorization. When drafting both MCAs, Congress recognized numerous evidentiary and trial procedures from federal civilian court were inappropriate for trying unlawful combatants. By these …

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Home Sweet Homestead - Not If You Are Subject To A Mandatory Homeowners' Association., Bridget M. Fuselier Jan 2011

Home Sweet Homestead - Not If You Are Subject To A Mandatory Homeowners' Association., Bridget M. Fuselier

St. Mary's Law Journal

Changes must be made to current Texas laws to strike a proper balance between the homeowners’ rights and the homeowners association’s (HOA) rights. The Texas Supreme Court’s decision in Inwood North Homeowners’ Ass’n v. Harris allows liens to attach to what would otherwise be considered homestead-protected property. Although the promise in Inwood was set forth in writing, touched and concerned the land, was intended to run with the land, and was properly recorded, that did not create a contractual lien. The court, however, incorrectly combined the concepts of liens and covenants. Furthermore, the court seemed to ignore the important and …

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A Synopsis Of Texas And Federal Sovereign Immunity Principles: Are Recent Sovereign Immunity Decisions Protecting Wrongful Governmental Conduct., Marilyn Phelan Jan 2011

A Synopsis Of Texas And Federal Sovereign Immunity Principles: Are Recent Sovereign Immunity Decisions Protecting Wrongful Governmental Conduct., Marilyn Phelan

St. Mary's Law Journal

The Texas Supreme Court recently rendered several decisions involving governmental entities reflecting the court’s inflexible application of the doctrine of sovereign immunity. These decisions raise concerns that the Court may be insulating government employees from adherence to ethical codes of conduct. Just as Congress enacted legislation requiring accuracy and reliability from financial officers of corporations, there exists a similar need for Texas courts to protect the public from governmental harm through misconduct. The current awareness of governmental officials lessens the likelihood of governmental transparency and accountability. This Article analyzes the Court’s current application of the sovereign immunity doctrine to provide …

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What Happened: Confronting Confrontation In The Wake Of Bullcoming, Bryant, And Crawford., Dibrell Waldrip, Sara M. Berkeley Jan 2011

What Happened: Confronting Confrontation In The Wake Of Bullcoming, Bryant, And Crawford., Dibrell Waldrip, Sara M. Berkeley

St. Mary's Law Journal

Crawford v. Washington and its progeny demonstrate the difficulty of delineating both the core and the perimeter of the Confrontation Clause. Crawford abrogated Ohio v. Roberts, forcing trial lawyers to re-evaluate the use of various types of hearsay formerly admitted upon a finding of adequate “indicia of reliability.” Later the Court issued two decisions further altering the contours of Confrontation Clause jurisprudence. Michigan v. Bryant and Bullcoming v. New Mexico. With these options, the old Roberts “indicia of reliability” test transformed into the new “primary purpose” test to identify certain testimonial statements. By significantly altering the contours of Confrontation Clause …

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Limiting The Foreclosure Power Of Texas Hoas With A Percentage Threshold Comment., Laci Ehlers Jan 2011

Limiting The Foreclosure Power Of Texas Hoas With A Percentage Threshold Comment., Laci Ehlers

St. Mary's Law Journal

Abstract Forthcoming.

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A Capital Gains Anomaly: Commissioner V. Banks And The Proceeds From Lawsuits., Stephen T. Black, Katherine D. Black, Michael D. Black Jan 2011

A Capital Gains Anomaly: Commissioner V. Banks And The Proceeds From Lawsuits., Stephen T. Black, Katherine D. Black, Michael D. Black

St. Mary's Law Journal

When a litigant receives an award of damages or agrees to a settlement of a lawsuit for which the litigant and her attorney have agreed to a contingent fee, a portion of those damages or the settlement is paid to the attorney. For income tax purposes, there is a question of whether the litigant should include the portion paid to her attorney as her own income. The question is not merely academic. In a tax system that does not always allow the litigant to deduct her attorney's fees, the litigant may end up paying tax on money that she never …

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How Should The Icc Prosecutor Exercise His Or Her Discretion? The Role Of Fundamental Ethical Principles, 43 J. Marshall L. Rev. 553 (2010), Brian D. Lepard Jan 2010

How Should The Icc Prosecutor Exercise His Or Her Discretion? The Role Of Fundamental Ethical Principles, 43 J. Marshall L. Rev. 553 (2010), Brian D. Lepard

UIC Law Review

No abstract provided.

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Shari'ah And Choice: What The United States Should Learn From Islamic Law About The Role Of Victims' Families In Death Penalty Cases, 44 J. Marshall L. Rev. 1 (2010), Susan C. Hascall Jan 2010

Shari'ah And Choice: What The United States Should Learn From Islamic Law About The Role Of Victims' Families In Death Penalty Cases, 44 J. Marshall L. Rev. 1 (2010), Susan C. Hascall

UIC Law Review

No abstract provided.

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Through Gritted Teeth And Clenched Jaw: Court-Initiated Sanctions Opinions In Bankruptcy Courts., Nancy B. Rapoport Jan 2010

Through Gritted Teeth And Clenched Jaw: Court-Initiated Sanctions Opinions In Bankruptcy Courts., Nancy B. Rapoport

St. Mary's Law Journal

Bankruptcy courts see too many incompetent bankruptcy lawyers, and the courts have few options for dealing with them. A court can rule against the lawyer, but this strategy punishes the lawyer’s client, who may be an innocent bystander. Alternatively, nothing prohibits a judge from deciding to hand down a sanctions opinion. Sanctions opinions arise when one party makes a request, or the court believes a lawyer’s behavior is serious enough to merit a written order. These instances include flouting the law—either bankruptcy law or the ethical rules—or being unaware of the fundamentals of bankruptcy practice and policy. In the instance …

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The Power To End War: The Extent And Limits Of Congressional Power., Adam Heder Jan 2010

The Power To End War: The Extent And Limits Of Congressional Power., Adam Heder

St. Mary's Law Journal

Congress has several options in limiting the execution of war, however, Congress has no implied constitutional authority to terminate a war. Congress may limit the scope at the outset of the war, dissolve the army, or use its appropriation power. Congress may also impeach the President. Domestic statutes, the Court’s strong protection of essential liberties, and the democratic process further check the President’s power. Short of these, however, neither the Constitution nor subsequent case law gives Congress any definitive power to end or effectively limit the President’s ability to conduct a war. Congress gets its “bite at the apple” at …

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Danger Or Resort To Underwear: The Safford Unified School District No. 1 V. Redding Standard For Strip Searching Public School Students., Joseph O. Oluwole Jan 2010

Danger Or Resort To Underwear: The Safford Unified School District No. 1 V. Redding Standard For Strip Searching Public School Students., Joseph O. Oluwole

St. Mary's Law Journal

Safford Unified Sch. Dist. No. 1 v. Redding (Redding III) represents a pivotal decision in school search and seizure jurisprudence, specifically regarding strip searches of students. Redding III establishes constraints specific to strip searches on the search and seizure authority of school officials. Redding III is intended to provide a uniform test for the judiciary and school officials when evaluating the reasonableness of strip searches of students. The Court explicitly interposed a “reliable knowledge” element requiring: (1) the degree to which known facts imply prohibited conduct; (2) the specificity of the information received; and (3) the reliability of its source. …

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New Law Complicates Foreclosure Sales In Texas., Katherine A. Tapley Jan 2010

New Law Complicates Foreclosure Sales In Texas., Katherine A. Tapley

St. Mary's Law Journal

A new law that recently took effect has changed the way non-judicial real property foreclosure sales work in Texas. The new law, known as House Bill 655 (HB 655), relates to foreclosure sales in Texas. HB 655 amends the language of Texas Property Code section 51.0075(f) dealing with when the purchase price is due at a foreclosure sale. The amendment, however, complicates foreclosure sales in Texas. The purchase price at the foreclosure sale is no longer due immediately. Instead, if a purchaser at a foreclosure sale requests additional time to deliver the purchase price, the trustee—the person conducting the foreclosure …

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Unequal And Unfair: Why Texas Should Require Mandatory Sales Price Disclosure To Reconcile The Texas Property Tax Code With The Texas Constitution., Nathan Morey Jan 2010

Unequal And Unfair: Why Texas Should Require Mandatory Sales Price Disclosure To Reconcile The Texas Property Tax Code With The Texas Constitution., Nathan Morey

St. Mary's Law Journal

Appraisal districts in Texas are implementing a system of taxation that is unequal and unfair. Texas counties, cities, and school districts depend on local ad valorem property taxes for revenue. Under the Texas Property Tax Code, the Code establishes appraisal districts to determine the value of taxable property. There is, however, a discrepancy between the cash value of the land and its appraisal value, especially when compared to commercial property and residential property. Commercial property and high-end residential real estate are often undervalued by appraisal districts throughout the state. Because commercial properties are under-appraised, the tax burden is being unequally …

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Leaks, Lies, And The Moonlight: Fiduciary Duties Of Associates To Their Law Firms., Susan Saab Fortney Jan 2010

Leaks, Lies, And The Moonlight: Fiduciary Duties Of Associates To Their Law Firms., Susan Saab Fortney

St. Mary's Law Journal

This symposium article examines the fiduciary duties of law firm associates. After applying agency principles to the firm-associate relationship, the article analyzes specific duties and discusses cases involving alleged breaches of fiduciary duties by associates. It explores associate duties in the current legal, organizational, and socio-technological environment in which associates practice. The article closes with observations on the importance of firm principals considering the effect of firm culture on associate attitudes and conduct.

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Capteton V. A.T. Massey Coal Co.: The Texas Implications., Catherine Stone, Wendy Martinez Jan 2010

Capteton V. A.T. Massey Coal Co.: The Texas Implications., Catherine Stone, Wendy Martinez

St. Mary's Law Journal

In Caperton v. A.T. Massey Coal Co., the United States Supreme Court addressed whether the Due Process Clause of the United States Constitution was violated by the denial of a motion to recuse. The motion sought to recuse a Supreme Court of Appeals Justice from West Virginia. The justice received an extraordinary campaign contribution from the chief officer of a corporate party to a case pending before the court. Several Texas courts addressed whether recusal was necessary based on campaign contributions prior to the decision in Caperton. Texas courts have universally held that recusal was not required. The United States …

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If One Is Good, Two Must Be Better: A Comparison Of The Texas Standards For Appellate Conduct And The Texas Disciplinary Rules Of Professional Conduct., Edward L. Wilkinson Jan 2010

If One Is Good, Two Must Be Better: A Comparison Of The Texas Standards For Appellate Conduct And The Texas Disciplinary Rules Of Professional Conduct., Edward L. Wilkinson

St. Mary's Law Journal

The Supreme Court of Texas and the Texas Court of Criminal Appeals adopted the Standards for Appellate Conduct (Standards) on February 1, 1999. The Standards are intended to “give practitioners a valuable tool to use with clients who demand unprofessional conduct” by imposing “an affirmative duty to educate the client about the Standards of Appellate Conduct.” The Standards further state they do not “alter existing standards of conduct under the Texas Rules of Disciplinary Procedure, or the Code of Judicial Conduct.” Under the Rules of Disciplinary Procedure, sanctionable conduct includes “acts or omissions…which violate one or more of the Texas …

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Ethical Issues Associated With Multidisciplinary Practices In Texas., Michael Kelly Jan 2010

Ethical Issues Associated With Multidisciplinary Practices In Texas., Michael Kelly

St. Mary's Law Journal

In 2000, the American Bar Association House of Delegates voted to uphold the ban on multidisciplinary practices (MDPs) set out in Rule 5.4 of the Model Rules of Professional Conduct (Model Rules). In 2009, the ABA announced the creation of the Ethics 20/20 Commission to review the Model Rules in the context of globalization. The Commission announced it was looking into alternative business structures, including MDPs. In an MDP a client can seek the advice of several professionals with experience in different disciplines working in a single business. Under Rule 5.4, a lawyer is prohibited from sharing legal fees with …

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Hall's Standards Of Review In Texas Foreword., Wallace B. Jefferson Jan 2010

Hall's Standards Of Review In Texas Foreword., Wallace B. Jefferson

St. Mary's Law Journal

Abstract Forthcoming.

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Deliberately Defrauding Investors: The Scope Of Liability Comment., Andrew R. Simank Jan 2010

Deliberately Defrauding Investors: The Scope Of Liability Comment., Andrew R. Simank

St. Mary's Law Journal

Since the Enron debacle, shareholders have increasingly filed suit in state and federal courts to recoup financial losses resulting from fraudulent representations made by failing corporations. These shareholders have advanced common law misrepresentation claims against publicly traded companies for alleged fraudulent U.S. Securities and Exchange Commission (SEC) filings. Originally, the scope of liability for common law fraud was very narrow. This scope was later broadened in an attempt to provide protection to individuals commonly victimized by fraudulent behavior. Texas courts have gone to great lengths to ensure the “expectation of influencing conduct” requirement for common law fraud requires more than …

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Technical Problem: How City Of Dallas V. Dallas Morning News, Lp Exposed A Major Loophole In The Texas Public Information Act Comment., Alexander J. Yoakum Jan 2010

Technical Problem: How City Of Dallas V. Dallas Morning News, Lp Exposed A Major Loophole In The Texas Public Information Act Comment., Alexander J. Yoakum

St. Mary's Law Journal

The Texas Public Information Act (TPIA) grants everyone a statutory right to access records of a governmental body unless disclosure would violate the law. Generally, TPIA is construed broadly to favor disclosure, but the rise of modern technology like email and text messaging reveals how dated TPIA truly is. According to the recent City of Dallas v. Dallas Morning News, LP, a governmental body is not required to release any business-related electronic communications sent via personal devices. This means governmental employees can conduct official business via personal email or cell phone without being subject to disclosure provisions, unless the requester …

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Hall's Standards Of Review In Texas., W. Wendell Hall, O. Rey Rodriguez, Rosemarie Kanusky, Mark Emery Jan 2010

Hall's Standards Of Review In Texas., W. Wendell Hall, O. Rey Rodriguez, Rosemarie Kanusky, Mark Emery

St. Mary's Law Journal

Standards of review distribute power within the judicial branch by defining the relationship between trial and appellate courts. These standards “frame the issues, define the depth of review, assign power among judicial actors, and declare the proper materials to review.” Standards of review are the cornerstones of appeals. These standards must be woven into the discussion of the facts and substantive law in a manner which persuades the appellate court that the trial court erred. Litigants must measure their factual and legal arguments against the appropriate rubric to write an effective and persuasive brief. Appellate judges agree that mechanical recitation …

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Should Texas's Former Ban On Obscene-Device Promotion Pass Constitutional Muster Under A Murky Lawrence Comment., Laura M. Clark Jan 2009

Should Texas's Former Ban On Obscene-Device Promotion Pass Constitutional Muster Under A Murky Lawrence Comment., Laura M. Clark

St. Mary's Law Journal

When the Fifth Circuit freed Texans to promote and distribute sexual devices without criminal penalties, it created a split with the Eleventh Circuit’s decision to uphold Alabama’s ban. Both courts based their rulings on the U.S. Supreme Court’s decision in Lawrence v. Texas, which invalidated Texas’s statute banning homosexual sodomy. In upholding Alabama’s sex-toy statute in 2007, the Eleventh Circuit found no fundamental right to sexual privacy under Lawrence and held public morality was a sufficiently rational basis for the statute. The court distinguished Lawrence, which dealt with prohibition of private conduct, rather than public commercial activity. The Fifth Circuit …

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Ten Years After Burrow V. Arce: The Current State Of Attorney Fee Forfeiture., Jeffrey A. Webb, Blake W. Stribling Jan 2009

Ten Years After Burrow V. Arce: The Current State Of Attorney Fee Forfeiture., Jeffrey A. Webb, Blake W. Stribling

St. Mary's Law Journal

“Extreme [attorney] misconduct may warrant an extreme remedy.” Fee forfeiture certainly constitutes an extreme remedy, at least compared to the ordinary remedy for violation of a legal duty. But neither the degree to which the remedy is extreme nor how extreme the misconduct must first be before the forfeiture becomes appropriate is apparent in light of the Texas Supreme Court’s decision in Burrow v. Arce. Understanding the confusion which has arisen with regard to Burrow’s impact depends in large measure on a thorough evaluation of (1) the basis for the court’s determinations relating to forfeiture, (2) the sources from which …

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Prescribing A Balance: The Texas Legislative Responses To Sell V. United States., Brian D. Shannon Jan 2009

Prescribing A Balance: The Texas Legislative Responses To Sell V. United States., Brian D. Shannon

St. Mary's Law Journal

In Sell v. United States, decided in 2003, the United States Supreme Court addressed the question of “whether the Constitution permits the Government to administer antipsychotic drugs involuntarily to a mentally ill criminal defendant – in order to render that defendant competent to stand trial for serious, but nonviolent crimes.” The Court concluded that the Constitution does permit doing so “in limited circumstances…upon satisfaction of conditions” that the Court delineated. This Article will first address the Court’s parameters for determining when the administration of antipsychotic medications on an involuntary basis is permissible. The remainder of the Article, however, will discuss …

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