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Legal Ethics and Professional Responsibility

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Full-Text Articles in Jurisprudence

Procedural And Judicial Limitations On Voir Dire - Constitutional Implications And Preservation Of Error In Civil Cases., R. Brent Cooper, Diana L. Faust Jan 2009

Procedural And Judicial Limitations On Voir Dire - Constitutional Implications And Preservation Of Error In Civil Cases., R. Brent Cooper, Diana L. Faust

St. Mary's Law Journal

The right to a trial by jury is meaningless without an effective voir dire. Recurring tort reform, rapid technological advancements, immediate access to media coverage of incidents that give rise to litigation have greatly expanded. Consequentially, courts are faced with the prospect that potential jurors’ opinions and attitudes have been tainted. In addition to these issues, trial courts display significant interest in promptly expediting the advancement of their dockets. Voir dire is an essential element of trial strategy. Voir dire allows counsel to establish rapport with potential jurors, introduce them to the issues and facts of the case, and identify …

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The Texas Supreme Court's Erroneous Doctrine Of Implied Appellate Jurisdiction., Charles R. Flores Jan 2009

The Texas Supreme Court's Erroneous Doctrine Of Implied Appellate Jurisdiction., Charles R. Flores

St. Mary's Law Journal

A Texas statute gave final appellate jurisdiction over cases not to the state supreme court but to the intermediate courts of appeals. After losing at the appellate level, one of the parties in Eichelberger v. Eichelberger appealed to the state supreme court despite the statute. But because the court of appeals decision conflicted with a United States Supreme Court decision, the Texas Supreme Court held its jurisdiction should be implied. Though legal commentators declared the decision an abrupt departure from standards for judicial decisions, they postulated it would be invoked so infrequently to do no lasting harm to Texas jurisprudence. …

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Civil Jury Trials R.I.P. - Can It Actually Happen In America Essay., Royal Furgeson Jan 2009

Civil Jury Trials R.I.P. - Can It Actually Happen In America Essay., Royal Furgeson

St. Mary's Law Journal

Civil jury trials in America have been declining at a steady rate for the last thirty years. This is a well-documented trend. If the trend continues, within the foreseeable future, civil jury trials in American may eventually become extinct. Jury trials have been central to justice in America and its states since their inception. Their importance has been stated as bringing accountability to the law and to society. As all persons, even the powerful and wealthy ones, are accountable under the law. Yet, as important as juries and jury trials are to the health of justice in America, the civil …

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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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Patent-Holding Patent Attorneys: Conflicts Of Interests, Confidentiality, And Employment Issues Comment., Ashley R. Presson Jan 2009

Patent-Holding Patent Attorneys: Conflicts Of Interests, Confidentiality, And Employment Issues Comment., Ashley R. Presson

St. Mary's Law Journal

Patents are grants issued by the United States Patent and Trademark Office (USPTO) which confer upon the holder, the patentee, patent rights to such intellectual property as inventions, technologies, and processes. Patent rights include the right to exclude others from “making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States.” Once the USTPO has granted a patent, the inventor may market the product. Patentees who do not have the funds or time to market the product may profit by conveying the legal rights conferred by the patent to other …

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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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Texas Law's Life Or Death Rule In Capital Sentencing: Scrutinizing Eight Amendment Violations And The Case Of Juan Guerrero, Jr., John Niland, Riddhi Dasgupta Jan 2009

Texas Law's Life Or Death Rule In Capital Sentencing: Scrutinizing Eight Amendment Violations And The Case Of Juan Guerrero, Jr., John Niland, Riddhi Dasgupta

St. Mary's Law Journal

The United States Supreme Court has never explained the Eighth Amendment’s impact in noncapital cases involving a mentally retarded or brain-injured defendant. The Court has not provided guidance to legislatures or lower courts concerning the acceptable balancing of aggravating and mitigating factors and the role that mitigating factors must play in the sentencing decision. A definitive gap exists between the protections afforded to a criminal defendant facing a life sentence as opposed to those confronted with the death penalty. The Court requires sentencing procedures to consider aggravating and mitigating factors, including mental retardation and brain damage, when imposing a death …

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A Witness To Justice, Jessica Silbey Jan 2009

A Witness To Justice, Jessica Silbey

Faculty Scholarship

In the 1988 film The Accused, a young woman named Sarah Tobias is gang raped on a pinball machine by three men while a crowded bar watches. The rapists cut a deal with the prosecutor. Sarah's outrage at the deal convinces the assistant district attorney to prosecute members of the crowd that cheered on and encouraged the rape. This film shows how Sarah Tobias, a woman with little means and less experience, intuits that according to the law rape victims are incredible witnesses to their own victimization. The film goes on to critique what the right kind of witness would …

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The Bapcoa's Restriction On Attorney-Client Speech In The Fifth And Eighth Circuits: Worth Saving Or Destroying Comment., Sara Berkeley Jan 2009

The Bapcoa's Restriction On Attorney-Client Speech In The Fifth And Eighth Circuits: Worth Saving Or Destroying Comment., Sara Berkeley

St. Mary's Law Journal

Abstract Forthcoming.

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Practitioners Beware: Under Amended Trap 47, Unpublished Memorandum Opinions In Civil Cases Are Binding And Research On Westlaw And Lexis Is A Necessity., Andrew T. Solomon Jan 2009

Practitioners Beware: Under Amended Trap 47, Unpublished Memorandum Opinions In Civil Cases Are Binding And Research On Westlaw And Lexis Is A Necessity., Andrew T. Solomon

St. Mary's Law Journal

In 2003 and 2008, the Texas Rule of Appellate Procedure (TRAP) 47 was amended. TRAP 47 is the rule which governs the issuance, citation, and precedential value of unpublished and memorandum opinions. The 2003 amendment was designed to make the law more readily available by prohibiting the issuance of unpublished opinions in civil cases and authorizing memorandum opinions in place of unpublished opinions. Despite its intention, the 2003 amendment failed to make civil case law more readily available. This is because such new opinions are only available via electronic repository, such as Westlaw or Lexis. As a result, to completely …

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Professional Malpractice In A World Of Amateurs., Thomas D. Morgan Jan 2009

Professional Malpractice In A World Of Amateurs., Thomas D. Morgan

St. Mary's Law Journal

Clients experience the speed at which the world changes, both technologically and socially. They expect lawyers to keep pace. The technology which permits lawyers to deliver legal services faster also chains lawyers to their electronic devices. This technology has also led to a growing market of those who promise to do the same work faster, better, and cheaper. Such developments will ultimately affect how lawyers view professional malpractice or the way the industry understands “competence and diligence normally exercised by lawyers.” The malpractice question becomes: to what standard of care and competence should such “amateur” lawyers be held? The legal …

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Could Government Speech Endorsing A Higher Law Resolve The Establishment Clause Crisis., Bruce Ledewitz Jan 2009

Could Government Speech Endorsing A Higher Law Resolve The Establishment Clause Crisis., Bruce Ledewitz

St. Mary's Law Journal

The Establishment Clause crisis exists due to the Supreme Court’s promise that America would have a secular government—meaning one which was neutral between religion and irreligion, as well as being neutral to all religions. This promise evolved pursuant to the Supreme Court’s interpretation of the Establishment Clause. Nevertheless, the commitment to neutrality was never carried to fulfillment by the Court. The crisis may be illustrated by Congress’ addition of the words “under God” to the Pledge of Allegiance in 1954. This addition seemed to violate the promise of neutrality made by the Supreme Court in Everson v. Board of Education …

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Of Lies And Disclaimers - Contracting Around Fraud Under Texas Law., Robert K. Wise, Andrew J. Szygenda, Thomas F. Lillard Jan 2009

Of Lies And Disclaimers - Contracting Around Fraud Under Texas Law., Robert K. Wise, Andrew J. Szygenda, Thomas F. Lillard

St. Mary's Law Journal

The Texas Supreme Court has failed to provide a bright-line test in determining whether reliance disclaimers are enforceable. A reliance disclaimer is a provision in a contract that disclaims all extra-contractual representations and provides that the contracting parties are not relying on any such representations. By including a reliance disclaimer, a contracting party may be attempting to immunize itself from liability for false statements made during negotiations. Even if a contracting party’s misrepresentations or non-disclosures were made with fraudulent intent, Texas law gives contracting parties broad freedom to contract around misrepresentation claims. In Forest Oil Corp. v. McAllen, the Texas …

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Judge William Wayne Justice: A Life Of Human Dignity And Refractory Mules Tribute., Albert H. Kauffman Jan 2009

Judge William Wayne Justice: A Life Of Human Dignity And Refractory Mules Tribute., Albert H. Kauffman

St. Mary's Law Journal

Judge Wayne Justice had a deep impact on the lives of many people and was an unyielding advocate who protected the rights of all U.S. citizens. Many of the Judge’s orders and consent decrees forced Texas to comply with more stringent federal requirements in education and health care and had a far reaching effect across the nation. Judge Justice presided over Doe v. Plyler that ensured the benefit of public education for the children of undocumented immigrants. In United States v. Texas, Judge Justice required that the Texas Education Agency monitor school district actions and policies to assure that they …

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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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The Yearning For Zion Raid And Its Impact On Texas Child Welfare Cases: How A Botched Rescue Effort Exposed A Need To Refocus Efforts On Effective Service Plans Comment., Shannon K. Dunn Jan 2009

The Yearning For Zion Raid And Its Impact On Texas Child Welfare Cases: How A Botched Rescue Effort Exposed A Need To Refocus Efforts On Effective Service Plans Comment., Shannon K. Dunn

St. Mary's Law Journal

The raid of the Yearning for Zion ranch exposed fundamental flaws in the operation of the Texas Department of Children and Family Services (the Department). In the raid, the Department took custody of 468 children without a court order and removed them from their homes. This is one of the most glaring examples of the Department’s disregard for the Texas Family Code. Subchapter B of section 263 of the Texas Family Code mandates for the creation and implementation of a comprehensive service plan whenever the Department removes a child from his home. The Department, however, failed to create service plans …

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Plea To The Jurisdiction: Defining The Undefined., Rebecca Simmons, Suzette Kinder Patton Jan 2009

Plea To The Jurisdiction: Defining The Undefined., Rebecca Simmons, Suzette Kinder Patton

St. Mary's Law Journal

Pleas to the jurisdiction have been part of Texas jurisprudence since shortly after Texas became a state. The resulting confusion over the procedure and standards to be employed in resolving a plea was partially alleviated by the Texas Supreme Court’s decision in Texas Department of Parks and Wildlife v. Miranda. From a number of reports from Texas’s reviewing courts, however, it is evident the courts continue to struggle with the plea. Currently there are no established procedural rules to assist with the resolution of a plea to the jurisdiction. Thus, procedures vary from court to court and case to case. …

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Loyalty In Limbo: The Peculiar Case Of Attorneys' Loyalty To Clients., Eli Wald Jan 2009

Loyalty In Limbo: The Peculiar Case Of Attorneys' Loyalty To Clients., Eli Wald

St. Mary's Law Journal

Attorney loyalty to clients is considered a cornerstone of the attorney-client relationship. Yet, loyalty is underexplored, misunderstood, and the subject of heated discord. Advocates of client-centered loyalty and their opponents both fail to provide a compelling accounting of loyalty to clients and its consequences. Leaving loyalty in limbo is an unacceptable state of affairs. The legal profession bears the continuous burden of accounting for its own practices. Because the Bar cannot assert broad client-centered loyalty as self-explanatory, the burden of disproving loyalty shifts to the critics. Critics of broad loyalty to clients are not helping advance the discourse by advocating …

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United States V. Leveto, Jennifer Steward Jan 2009

United States V. Leveto, Jennifer Steward

NYLS Law Review

No abstract provided.

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Sanctioning The Ambulance Chaser, Anita Bernstein Jul 2008

Sanctioning The Ambulance Chaser, Anita Bernstein

Faculty Scholarship

No abstract provided.

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Government Lawyers In The Liberal State, W. Bradley Wendel Feb 2008

Government Lawyers In The Liberal State, W. Bradley Wendel

Cornell Law Faculty Working Papers

Criticism of the “politicization” of the role of federal government lawyers has been intense in recent years, with the scandals over the hiring practices at the Department of Justice, and the advice given to the administration by lawyers at the Office of Legal Counsel, concerning various aspects of the post-9/11 national security environment. Unfortunately, many of these critiques do not hold up very well under scrutiny. We lack a coherent account of what it means to “politicize” the practice of interpreting and applying the law. This paper argues that our evaluative discourse about the ethics of government lawyers is inadequately …

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Ethical Plea Bargaining Under The Texas Disciplinary Rules Of Professional Conduct., Edward L. Wilkinson Jan 2008

Ethical Plea Bargaining Under The Texas Disciplinary Rules Of Professional Conduct., Edward L. Wilkinson

St. Mary's Law Journal

Plea bargaining is such an essential component of the administration of justice that disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons. Even though 95% of felony criminal cases nationwide are resolved through plea bargaining, there are no specific ethical rules governing the practice. The exhortation in article 2.01 of the Texas Code of Criminal Procedure states it is the primary duty of all prosecuting attorneys to see that justice is done, rather than merely convicting. In order to determine the ethical boundaries of plea bargaining, …

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A Pragmatic Look At Mediation And Collaborative Law As Alternatives To Family Law Litigation Comment., Elizabeth F. Beyer Jan 2008

A Pragmatic Look At Mediation And Collaborative Law As Alternatives To Family Law Litigation Comment., Elizabeth F. Beyer

St. Mary's Law Journal

Since close to half the country’s marriages end in divorce, marriage dissolution is quite a lucrative business for attorneys. Also, fewer people are entering marriage in the first place. Fewer marriages combined with more children born out of wedlock create multitudinous legal problems and family disputes centering around those children. In addition to initial divorce filings and suits affecting the parent-child relationship, dissolution of marriage cases often creates additional litigation down the road. As a solution to the problems caused by the expense and toil of this litigation, alternative dispute resolution (ADR) offers several options for family disputants. Two popular …

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The Castle Doctrine: An Expanding Right To Stand Your Ground Comment., Denise M. Drake Jan 2008

The Castle Doctrine: An Expanding Right To Stand Your Ground Comment., Denise M. Drake

St. Mary's Law Journal

Recently, the Texas Legislature passed Senate Bill 378 effectively terminating a person’s “duty to retreat” when confronted with a criminal attack of either great bodily injury or death. Complicated issues of innocence and guilt arise when one employs deadly force as a means of self-defense. Furthermore, tragic mistakes occur when people preemptively resort to deadly force before the realization of such a threat. Societal questions still exist concerning the possibility that self-defense will turn into self-justice. Critics argue the law encourages a vigilante society, substituting law enforcement help with self-justice. Conversely, supporters believe the bill serves as a deterrent from …

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Loose Lips Sink Attorney-Client Ships: Unintended Technological Disclosure Of Confidential Communications Essay., Bill Piatt, Paula Dewitte Jan 2008

Loose Lips Sink Attorney-Client Ships: Unintended Technological Disclosure Of Confidential Communications Essay., Bill Piatt, Paula Dewitte

St. Mary's Law Journal

In general, attorneys must not reveal confidential information relating to the representation of their clients. Attorneys must make reasonable efforts to ensure the attorneys they supervise, as well as their nonlawyer employees, maintain client confidences. In modern days, technology virtually guarantees attorneys and clients will communicate electronically. While most attorneys would not knowingly disclose client confidences, there is a growing problem of unintended disclosure through electronic means. On a practical level, maintaining confidence is of utmost importance to both attorneys and clients. Attorneys may believe they are using good faith and competent, reasonable actions to protect their clients’ information from …

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A Meaningless Relationship: The Fifth Circuit's Use Of Dismissed And Uncharged Conduct Under The Federal Sentencing Guidelines Recent Development., Erin A. Higginbotham Jan 2008

A Meaningless Relationship: The Fifth Circuit's Use Of Dismissed And Uncharged Conduct Under The Federal Sentencing Guidelines Recent Development., Erin A. Higginbotham

St. Mary's Law Journal

The Fifth Circuit’s failure to require the uncharged conduct to have a meaningful relationship with the conduct of conviction is flawed. An amendment of section 5K2.21 specifically approved the consideration of uncharged or dismissed offenses to serve as a basis for an upward departure to reflect the actual seriousness of the offense. Confusion amongst federal circuit courts of appeal arose as to whether such conduct included uncharged or dismissed criminal offenses. Interpreting the amendment’s language has caused a circuit split. The Fifth Circuit erroneously interpreted section 5K2.21 as to require nothing more than a “remote connection” between the uncharged crime …

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The Metes And Bounds Of Governmental Immunity And Political Subdivisions: Limiting Tort Liability For Municipal Utility Districts In Texas Recent Development., Dawn E. Norman Jan 2008

The Metes And Bounds Of Governmental Immunity And Political Subdivisions: Limiting Tort Liability For Municipal Utility Districts In Texas Recent Development., Dawn E. Norman

St. Mary's Law Journal

Abstract Forthcoming.

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The Human Dignity Of Clients, Kate Kruse Jan 2008

The Human Dignity Of Clients, Kate Kruse

Faculty Scholarship

This essay reviews David Luban's forthcoming book, Legal Ethics and Human Dignity. At the heart of this new book is an argument that interactions between lawyers and clients ought to be at the center of jurisprudential inquiry. Pointing out that most cases do not go to trial and that much transactional work occurs outside the litigation context, he argues that law's defining moments occur when a "client sketches out a problem and a lawyer tenders advice," rather than when a judge decides a litigant's case. This review essay examines how Luban might elaborate a new "jurisprudence of lawyering" by examining …

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In The Wake Of Low V. Henry: Is Pre-Suit Discovery Now A Reality In Texas., John G. Lione Jr., Ryan W. Lione Jan 2008

In The Wake Of Low V. Henry: Is Pre-Suit Discovery Now A Reality In Texas., John G. Lione Jr., Ryan W. Lione

St. Mary's Law Journal

Following the Texas Supreme Court decision in Low v. Henry, the issue of whether an attorney may be liable for filing a “groundless pleading” has come to the forefront of Texas jurisprudence. This recent decision ought to pique Texas attorneys’ attention. In reprimanding egregious attorney conduct, did the Texas Supreme Court’s tightening of the Texas Rules of Civil Procedure increase the duties and responsibilities of all Texas attorneys by establishing what may amount to pre-suit discovery? Yet, courts presume pleadings and motions are filed in good faith, and the party seeking sanctions bears the burden of rebutting this presumption. The …

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Assault Upon The Citadel Of Privity: The Coexistence Of Strict, Privity And Belt V. Oppenheimer, Blend, Harrison & (And) Tate, Inc. Comment., C. John Muller Iv Jan 2008

Assault Upon The Citadel Of Privity: The Coexistence Of Strict, Privity And Belt V. Oppenheimer, Blend, Harrison & (And) Tate, Inc. Comment., C. John Muller Iv

St. Mary's Law Journal

The practicing attorney must have a complete understanding of legal malpractice liability. Managing this risk can be a precarious responsibility when the law is not clearly defined. This is compounded by the steady erosion of attorney-client privity barriers making it easier for third party non-clients to sue lawyers for legal malpractice. This is the current state of matters in Texas since the Texas Supreme Court decided Belt v. Oppenheimer, Blend, Harrison & Tate, Inc. on May 5, 2006. The Belt court determined personal representatives of an estate may bring a malpractice claim against the decedent’s attorneys. The Belt court was …

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