Legal Ethics and Professional Responsibility Commons^™

A Continuing Whimsical Search For The True Meaning Of The Term Products Liability Litigation., Charles E. Cantu

St. Mary's Law Journal

Abstract Forthcoming.

A Rose Is A Rose Is A Rose - Or Is It - Fiduciary And Dtpa Claims Against Attorneys Third Annual Symposium On Legal Malpractice & (And) Professional Responsibility., James M. Parker Jr., Thomas H. Watkins, Rachel L. Noffke

St. Mary's Law Journal

Abstract Forthcoming.

Texas's Statutory Exclusionary Rule: Analyzing The Inadequacies Of The Current Application Of Other Person(S) Pursuant To Article 38.23(A) Of The Texas Code Of Criminal Procedure., Nathan L. Mechler

St. Mary's Law Journal

Abstract Forthcoming.

Family Violence Protective Orders In Texas And Appelate Review: Are They Meant For Each Other., Manuel C. Maltos

St. Mary's Law Journal

Historically, protective orders have been viewed as an effective civil legal recourse for those affected by family violence. Title Four of the Texas Family Code governs these protective orders and sets forth the requirements for obtaining such an order. With consistent improvements to Title Four, the legislature has responded to society's decreasing tolerance of family violence. As a result, now the Family Code mandates the issuance of a protective order as provided by Title Four, regardless of whether a divorce is pending. Further legislative efforts also lengthened the maximum duration of a protective order from one year to two years. …

Legal Malpractice In Texas: Examining Selected Cases And Forecasting Future Trrends Third Annual Symposium On Legal Malpractice & Professional Responsibility: Symposium Presentations., Wallace B. Jefferson

St. Mary's Law Journal

Little hard data exists concerning legal malpractice in Texas. What’s more, few legal law malpractice rulings are published. To date, there are only fifty written opinions on legal malpractice from Texas intermediate appellate courts. The activity that most often gave rise to a claim of legal malpractice involved the preparation, filing, and transmittal of documents, accounting for about a quarter of all claims. In San Antonio, Chief Justice Alma Lopez of the Fourth District Court of Appeals discussed common issues she sees in her courtroom. The issues ranged from failures to follow simple court rules to more substantial failures of …

The Texas Cave Bug And The California Arroyo Toad Take On The Constitution's Commerce Clause., Daniel J. Lowenberg

St. Mary's Law Journal

Abstract Forthcoming.

Aboilishing The Texas Jury Shuffle., Michael M. Gallgher

St. Mary's Law Journal

This Article argues that the Texas Legislature should abolish the jury shuffle and join the other forty-nine states who have already done so. The jury shuffle, when requested, is a procedure which results in a random shuffling of the names of the jury pool members. Texas attorneys currently possess an entirely cost and risk free procedure through which they can discriminate against potential jurors on the basis of race, gender, ethnicity, or anything else that suits their fancy. An attorney can request a jury shuffle without stating a reason and a judge cannot ask why a shuffle was requested or …

School Voucher Programs: Has The Supreme Court Pulled Up The Gangplank To Establishment Clause Challenges., Cecil C. Kuhne Iii

St. Mary's Law Journal

The Establishment Clause is not violated when a program is neutral toward religion and provides assistance directly to a broad class of citizens, who in turn voluntarily direct the aid to religious schools. A program containing these features permits government aid to reach religious institutions only thru the deliberate choices of individuals. Any incidental advancement or endorsement of religion is attributable to the individual recipient—not the government, which simply acts as a disburser. In Zelman v. Simmons-Harris, the Supreme Court reiterated this rationale from a twenty-year line of cases. Zelman is a death knell for Establishment Clause challenges to carefully …

Predatory Paternity Establishment: A Critical Analysis Of The Acknowledgment Of Paternity Process In Texas., Anne Greenwood

St. Mary's Law Journal

Child support programs across the nation are struggling to achieve even meager recovery of the financial support children need from their parents. Obtaining child support payments from men who are not fathers and who unknowingly signed their rights away is not a sound long-term policy. States must ensure that children are supported and their custodial mothers receive assistance from non-custodial fathers. Logically, the law should only compel a man to support a child he fathered. If a man chooses to assume not only the financial obligation but also the relationship which belongs to the biological father; then such agreement must …

Stranded In The Wastelands Of Unregulated Roadway Police Powers: Can Reasonable Officers Ever Rescue Us., Keith S. Hampton

St. Mary's Law Journal

This Article describes the present state of roadway police power and explores the vulnerability of drivers and occupants to police abuse, specifically using pretextual stops. Today, state and federal courts have made many police power accommodations to the constitutional reasonableness requirement. Current Fourth Amendment jurisprudence justifies almost all conceivable police seizures of people in vehicles. If the police officer can point out any traffic law violation, he can arrest. And if he can arrest under those circumstances, then the already blurred line between detentions and arrest becomes inconsequential, constitutionally speaking. This Article proposes that the Texas Court of Criminal Appeals …

United States V. Bean: Shoveling After The Elephant., Pannal Alan Sanders

St. Mary's Law Journal

Over the years Congress has enacted and amended several versions of the United States Code (U.S.C) § 925(c). Several reported cases illustrate the courts’ early efforts to develop a coherent body of jurisprudence with respect to the procedural and substantive aspects of U.S.C. § 925(c) judicial review. Specifically, the § 925(c) denials of relief by the Director before the congressional appropriations ban commenced in 1993. Although the methodology and reasoning behind these decisions differ in their details, several themes are discernable. First, even without the express provisions for judicial review added by the Firearms Owners Protection Act (FOPA), courts consistently …

Decriminalizing Sexual Conduct: The Supreme Court Ruling In Lawrence V. Texas., Jessica A. Gonzalez

St. Mary's Law Journal

Throughout America, homosexual men and women have fought for the protection of their constitutional rights; gay men, lesbian women, and bisexual persons have petitioned the government for marital rights, adoption privileges, and recognition in the armed forces. While American culture has changed to include homosexuals in its daily life, the judicial branch has been hesitant in accepting gay culture within the legal system. While American courts remained reluctant to invalidate anti-sodomy statutes, Lawrence v. Texas pushed homosexual issues to the forefront. Gay activists demanded that the courts recognize homosexual individuals as persons deserving of constitutional protections. In doing so, Lawrence …

Punishment Evidence: Grunsfeld Ten Years Later., Edward L. Wilkinson

St. Mary's Law Journal

This Article deals with the admissible evidence during the punishment phase of a non-capital trial in Texas. In 1989, the Texas Legislature amended Article 37.07, Section 3(a) of the Texas Code of Criminal Procedure to widen the scope of evidence admissible during the punishment phase of a non-capital trial. Grunsfel v. State, the leading case, the Court of Criminal Appeals interpreted the statute so narrowly as to render the changes meaningless. In 1993, the legislature amended the statute a second time; it provided for a more expansive range of evidence to be introduced, but deleted a critical definition of what …

The Seat Belt Defense In Texas., Brian T. Bagley

St. Mary's Law Journal

This Comment calls upon Texas courts to recognize the seat belt defense as a form of comparative responsibility. It has become standard procedure for Americans riding in motor vehicles to “buckle up.” Seat belt usage has risen since 1994, steadily increasing to seventy-five percent in 2002, with an increase of two percent in the last year alone. Many American jurisdictions, however, still refuse to allow evidence of seat belt use or nonuse to be considered in civil suits. Courts do not allow the failure to wear a safety belt in violation of the mandatory seat belt usage statute to be …

Legal Malpractice: When The Legal System Turns On The Lawyer Third Annual Symposium On Legal Malpractice & Professional Responsibility: Essay., Jennifer Knauth

St. Mary's Law Journal

What happens when a lawyer becomes a defendant in a legal malpractice case? Much has been written about the shortcomings of the adversary system as measured against its theoretical goals and assumptions. One significant assumption underlying the adversary system is that there is an equal playing field among litigants. The reality of a legal malpractice case is at odds with this ideal. The prevailing cultural bias against lawyers as gatekeepers and beneficiaries of the legal system permeates every aspect of a legal malpractice case. One effect of this cultural bias is the lawyer-defendant's very personal and disproportionate experience with the …

Ethical Issues In Judicial Campaigns Third Annual Symposium On Legal Malpractice & Professional Responsibility: Symposium Presentations., Micahel E. Keasler

St. Mary's Law Journal

Abstract Forthcoming.

Confidentiality, Corporate Counsel, And Competition Law: Representing Multi-National Corporations In The European Union Third Annual Symposium On Legal Malpractice & Professional Responsibility: Symposium Presentations., Sue Bentch

St. Mary's Law Journal

Professional ethics for corporate counsel in the European Union (EU) differs from the standards required in the United States. Consequently, conflicts may arise when US corporations deal with EU countries. For instance, if an issue regarding confidentiality emerges, the company bears the burden to prove to the European Commission that a particular document is protected from disclosure. Under EU’s Regulation 17, the European Commissioner has broad powers to investigate and adjudicate suspected violations of EU competition law. The Commissioner is the equivalent of an investigator, prosecutor, judge, and jury, all rolled into one. If a communication from a company was …

Playing The Probate Card: A Plaintiff's Guide To Transfer To Statutory Probate Court., Joseph R. Marrs

St. Mary's Law Journal

Plaintiffs and defendants in tort litigation by or against a probate estate can be better-litigated in statutory probate court. Since the 1970s, Texas probate courts have steadily risen to power. The Texas Supreme Court attempted to curtail this practice in Seay v. Hall. The Texas legislature overruled Seay and continued to expanded the jurisdiction of statutory probate courts. Despite the continuing “merry dance” between the legislation and judicial review, the legitimate purpose of expanding lawsuits to probate court remains that of efficiently resolving lawsuits linked to guardianship or decedents’ estates while preserving all parties’ interests. The author uses an example …

Civillity In The Legal Profession: A Survey Of The Texas Judiciary., Catherine M. Stone, Kimberlyl S. Keller, Shane J. Stolarczyk

St. Mary's Law Journal

Abstract Forthcoming.

Failure To Advise Non-Citizens Of Immigration Consequences Of Criminal Convictions: Should This Be Grounds To Withdraw A Guilty Plea?, John J. Francis

University of Michigan Journal of Law Reform

In this Article, Professor Francis argues that non-citizen criminal defendants should be afforded greater latitude in withdrawing guilty pleas, when those pleas are made without awareness of potential immigration consequences. Moreover, the Article highlights the roles both judges and attorneys should play in ensuring that non-citizens do not enter into such uninformed pleas.

Noting that courts have characterized deportation as a collateral consequence of a criminal conviction, the article argues that deportation, following the passage of the Immigration and Naturalization Act of 1996, is unique in its severity and certainty. Many of the same due process considerations which underpin the …

Law School Branding And The Future Of Legal Education., Michael Ariens

St. Mary's Law Journal

It is too early to determine if law school branding will have a positive or a negative effect on legal education. A recent shift in legal education has led law schools to consciously brand themselves, claiming an educational distinctiveness in selling their services to consumers. Branding is an attempt to create a desire in targeted prospective students to join the branded law school. Although a law school may brand itself by claiming it delivers an excellent legal education, branding is about distinctiveness, not quality. Law schools have used a number of approaches to attract students, including aggressive marketing of a …

Separation V. Patriotism: Expelling The Pledge From School., Bill W. Sanford Jr.

St. Mary's Law Journal

Abstract Forthcoming.

Rethinking The Prohibition Of Death Row Prisoners As Organ Donors: A Possible Lifeline To Those On Organ Donor Waiting Lists., Donny J. Perales

St. Mary's Law Journal

Organ transplantation continually brings hope and new life to thousands of patients suffering from a myriad of diseases. Despite the advances in medical science and the increased survival rates of organ recipients, many are unable to receive an organ transplant because the demand for organs drastically exceeds the available supply. Much of the organ deficit lies in the current system of organ procurement. The altruism-based organ system leaves the donative decision to the individual; however, it is this system which hinders effective organ procurement. Under this system, the donor must give prior consent before a doctor can remove any organ. …

Dealing With Default Judgements., Julia F. Pendrey, Shawn M. Mccaskill, Hilaree A. Casada

St. Mary's Law Journal

Abstract Forthcoming.

Novel Issues, Futile Issues, And Appelate Advocacy: The Troubling Lessons Of Bousley V. United States., Henry J. Bemporad, Sarah P. Kelly

St. Mary's Law Journal

Bousley v. United States may require appellate attorneys to raise meritless claims in order to preserve them for habeas review in the event of a change in the law. Bousley is a habeas corpus case involving the “procedural default” doctrine. The doctrine states that a prisoner may only raise issues that have been adequately preserved, and if not preserved, they have defaulted on their claims. Bousley looked with critical hindsight at the decisions made by appellate counsel and punished the defendant for their lawyer’s failure to preserve an issue rejected by eleven courts of appeals—including the court before which the …

Iolta In The Balance: The Battle Of Legality And Morality Between Robin Hood And The Miser Recent Development., Katherine L. Smith

St. Mary's Law Journal

Interest on Lawyers Trust Account (IOLTA) programs recently survived a constitutional challenge. IOLTA programs require interest earned from trust accounts deposited with client money to fund legal services for the poor. Many states, including Texas, maintain a mandatory IOLTA program, requiring all lawyers who handle client funds to participate. Proponents of IOLTA argue it benefits civil justice. Opponents argue it is an unconstitutional taking in violation of the Fifth Amendment. The Fifth Circuit held IOLTA accounts to be an unconstitutional taking of client property. The Ninth Circuit, however, found IOLTA accounts constitutional, holding that IOLTA accounts are not a taking …

Accountants' Accountability To Nonclients In Texas., Jessica P. Gomez

St. Mary's Law Journal

This Comment proposes that accountants be held liable to any foreseeable user of their work product to ensure the deterrence of negligence on their part. Currently, the three main common law theories concerning whether nonclients can sue accountants for negligence are: (1) the privity rule; (2) the Restatement (Second) of Torts § 552; and (3) the foreseeability standard. Many states follow the Restatement approach entitled “Information Negligently Supplied for the Guidance of Others.” Texas imposes liability on accountants but fails to extend protections to third parties who rely upon the accuracy of financial statements. Further, Texas liability does not expose …

It Is Not So Simply Because An Expert Says It Is So: The Reliability Of Gang Expert Testimony Regarding Membership In Criminal Street Gangs: Pushing The Limits Of Texas Rule Of Evidence 702., Placido G. Gomez

St. Mary's Law Journal

The mechanisms developed by the criminal justice system addressing the criminal activities of street gangs, for the most part, have proved ineffective. The evolution of gangs, their complex structure, and multipurpose focus keep them one step ahead of law enforcement. The most recent weapon created to fight the war on gangs, the civil injunction, suffers from numerous inadequacies. One concern is that civil injunctions raise numerous constitutional concerns. Another is that these injunctions fall short of constitutional demands. Furthermore, the practical implementation of the injunction forces an analysis of the reliability of the gang expert’s testimony. This Article proposes courts …

Putting Health Care Providers At A Loss And Consumers At Risk: Why Hmos Should Be Held Accountable For The Financial Instability Of Their Delegated Networks., Anish P. Michael

St. Mary's Law Journal

This Comment explores why health maintenance organizations (HMOs) such as PacifiCare should be held accountable for the financial instabilities of their delegated networks. Part II discusses the organization of the managed care system and the assessment of Texas laws currently enforcing managed care in the state. Incorporated in this discussion is a look at the risks delegated networks bear when contracting with HMOs to provide payment for individualized care. Part III analyzes the increasing trend of financial instability by presenting the views of the HMOs, the delegated networks, the health care providers, and the consumers enrolled in the health plan. …

Privacy Lost: Comparing The Attenuation Of Texas's Article 1, Section 9 And The Fourth Amendment., Kimberly S. Keller

St. Mary's Law Journal

The Fourth Amendment to the United States Constitution requires that all searches and seizures be reasonable. Article I, Section 9 of the Texas Constitution mirrors its federal counterpart, requiring reasonableness in regard to intrusive governmental action. In examining these texts, both the federal and state provisions are comprised of two independent clauses: (1) the Reasonableness Clause, which prohibits unreasonable searches and seizures; and (2) the warrant clause, which provides that warrants may issue only upon a showing of probable cause. Both the federal and Texas constitutions include explicit language regulating the government’s right to intrude on a person’s privacy. This …