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Full-Text Articles in Legal Ethics and Professional Responsibility

Summary Of Recent Developments In Texas Legal Malpractice Law Symposium: Legal Malpractice And Professional Responsibility., Steve Mcconnico, Robyn Bigelow Jan 2002

Summary Of Recent Developments In Texas Legal Malpractice Law Symposium: Legal Malpractice And Professional Responsibility., Steve Mcconnico, Robyn Bigelow

St. Mary's Law Journal

Although the number of malpractice suits may not be increasing, the way plaintiffs are pleading these suits is changing dramatically and resulting in increased potential for attorney liability. Recent changes in the nature of liability led to increased potential for damages and a trend of high dollar settlements in malpractice cases. These changes may significantly impact the ability of lawyers in Texas to avoid liability while representing clients and preserving client confidences. Texas law generally limits malpractice claims to clients against their attorneys; but non-clients are increasingly succeeding in creatively pleading causes of action by alleging fraud, conspiracy, and negligent …

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Toward A More Effective Standard Of Review: The Potential Effect Of Burdine V. Johnson On Legal Malpractice In Texas., Rebecca A. Copeland Jan 2002

Toward A More Effective Standard Of Review: The Potential Effect Of Burdine V. Johnson On Legal Malpractice In Texas., Rebecca A. Copeland

St. Mary's Law Journal

If the presence of a sleeping attorney is so egregious as to result in a reversal of a criminal conviction, it is surely enough to warrant the imposition of civil damages upon the same attorney. A recent trend of cases in which criminal defendants alleged ineffective assistance of counsel—due to sleeping attorneys—resulted in courts being unable to create a uniform analysis for ineffective assistance of counsel. The Sixth Amendment protects a criminal defendant’s right to effective assistance of counsel, and the Supreme Court has devised a two-prong analysis by which claims of ineffective assistance must be reviewed. Burdine v. Johnson …

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Attorney-Client Conundrum: The Use Of Arbitration Agreements For Legal Malpractice In Texas., Robert J. Kraemer Jan 2002

Attorney-Client Conundrum: The Use Of Arbitration Agreements For Legal Malpractice In Texas., Robert J. Kraemer

St. Mary's Law Journal

Abstract Forthcoming.

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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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Lawyers' Ethical Dilemmas: A "Normal" Relationship When Representing Demented Clients And Their Families, Robert B. Fleming, Rebecca C. Morgan Jan 2001

Lawyers' Ethical Dilemmas: A "Normal" Relationship When Representing Demented Clients And Their Families, Robert B. Fleming, Rebecca C. Morgan

Georgia Law Review

The Anglo-American legal system, based as it is on an adversary system of justice, assumes that two or more legal combatants, capably arguing their respective positions, can best ensure that the correct answer will become apparent to a neutral decisionmaker, the judge. The system assumes competent parties with adept legal representation, presenting their respective sides of the case with little involvement by the judge. This ideal can be difficult, even impossible, to reach when one party is demented.' Indeed, in such a case the problem with this traditional legal model is even deeper-there may be no clear adversarial distinction between …

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Freedom Fading: On Dementia, Best Interests, And Public Safety, Bruce Jennings Jan 2001

Freedom Fading: On Dementia, Best Interests, And Public Safety, Bruce Jennings

Georgia Law Review

Having Alzheimer's Disease does not make a person evil, but it does sometimes cause behavior that poses a danger to the person with dementia or to others. On what grounds can we justify overriding and restricting the liberty of a person with dementia? How far should such restrictions go? Who should authorize them and who should carry them out, and under what theory? Given that all behavior carries some degree of risk, what level of risk is acceptable? What should society tolerate as a part of the back- ground conditions within which most people conduct their lives? To what level …

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Predictive Genetic Testing For Alzheimer's Disease In Long-Term Care Insurance, Mark A. Rothstein Jan 2001

Predictive Genetic Testing For Alzheimer's Disease In Long-Term Care Insurance, Mark A. Rothstein

Georgia Law Review

The promise of new genetic research is the ability to prevent, treat, and cure a wide range of physical and mental disorders-both monogenic and complex disorders. While astonishing progress has been made in gene discovery and the development of genetic tests, progress has been much slower in developing medicalinterventions. Consequently, there is likely to be a gap of varying and indetermi- nate time-lasting years or decades-between the ability to identify and predict genetic risk and the ability to prevent, treat, or cure the condition. The gap between the ability to predict genetic risk and the ability to ameliorate the risk …

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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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Ethics, Ethnicity, And Dementia: A "Culture-Fair" Approach To Bioethical Advocacy In Dementing Illness, Ramon Valle Jan 2001

Ethics, Ethnicity, And Dementia: A "Culture-Fair" Approach To Bioethical Advocacy In Dementing Illness, Ramon Valle

Georgia Law Review

The aims of this discussion are to twofold. The first is to apply what Post et al. term a cultural lens to bioethical decisionmaking processes in dementing illness.' The second is to assist the ethical advocate to develop a cultural analysis strategy for application of ethical decisionmaking processes within ethnically diverse populations. An assumption made here is that, as human inventions, ethical systems are an extension of culture, taking their imprint from the ethnocultural systems from which they emerge.' It is true that ethical systems and their principles can be widely shared across cultures. Modern bioethics, as promulgated within the …

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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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Creating And Supporting The Proxy-Decider: The Lawyer-Proxy Relationship, Nancy N. Dubler Jan 2001

Creating And Supporting The Proxy-Decider: The Lawyer-Proxy Relationship, Nancy N. Dubler

Georgia Law Review

Advance directives have been identified as the "quick fix" of bioethics. The logic goes something like this: If we could only get patients to tell us, in advance of disability, the specifics of the health care they would want to receive in the future, we could put our ethical and legal qualms aside and march ahead with care that we know is patient appropriate and legally protected. If we could only get the patient to commit, we could proceed with moral certainty and risk assurance. If we could only be given explicit instructions, we could act accordingly and be comfortable …

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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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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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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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Caretakers And Collaborators, Maxwell Gregg Bloche Jan 2001

Caretakers And Collaborators, Maxwell Gregg Bloche

Georgetown Law Faculty Publications and Other Works

A chilling subplot in the twentieth-century saga of state-sponsored mass murder, torture, and other atrocities was the widespread incidence of medical complicity. Nazi doctors’ human “experiments” and assistance in genocidal killing are the most oft-cited exemplar, but wartime Japanese physicians’ human vivisection and other grotesque practices rivaled the Nazi medical horrors. Measured by these standards, Soviet psychiatrists’ role in repressing dissent, Latin American and Turkish military doctors’ complicity in torture, and even the South African medical profession’s systematic involvement in apartheid may seem, to some, almost prosaic. Yet these and other reported cases of medical complicity in human rights abuse …

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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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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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Whither The Texas Tort Claims Act: What Remains After Official Immunity., J. Bonner Dorsey Jan 2001

Whither The Texas Tort Claims Act: What Remains After Official Immunity., J. Bonner Dorsey

St. Mary's Law Journal

Abstract Forthcoming.

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Dementia Research: Ethics And Policy For The Twenty-First Century, Rebecca Dresser Jan 2001

Dementia Research: Ethics And Policy For The Twenty-First Century, Rebecca Dresser

Georgia Law Review

People in developed countries rank dementia among the most feared threats to human health and life. With an increasing portion of the U.S. population living into the seventh, eighth, and ninth decades, the incidence of dementia is on the rise. So is the incidence of dementia research. In an effort to lighten the burdens on future patients and caregivers, government agencies, pharmaceutical companies, and philanthropic organizations are devoting abundant resources to the study of dementia. Like most human endeavors, dementia research can yield both benefits and harms. On the positive side, research holds out the possibility of better medications and …

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Thinking About Life-Sustaining Treatment Late In The Life Of A Demented Person, Thomas Finucane Jan 2001

Thinking About Life-Sustaining Treatment Late In The Life Of A Demented Person, Thomas Finucane

Georgia Law Review

This paper will consider a specific clinical situation: an elderly patient with dementia who becomes seriously ill, where treatment would likely be burdensome but might prolong life. Generic questions are described and the lawyerly Standard Paradigm is developed. Questions are raised about every step of the Standard Paradigm. Finally, there is a discussion of two treatment decisions that are commonly faced late in the course of advanced dementia: tube feeding and attempted cardiopulmonary resuscitation.

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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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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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