Legal Ethics and Professional Responsibility Commons^™

Just Because You Can Doesn’T Mean You Should: Reconciling Attorney Conduct In The Context Of Defamation With The New Professionalism, Heather M. Kolinsky

Scholarly Articles

The Florida Bar has recently proposed enforceable professionalism standards. While many states have professionalism codes they remain aspirational and unenforceable. Florida’s move toward enforceable professionalism standards is laudable, but raises concerns about how moving a “step above” the floor of the rules of professional conduct will affect advocacy and practice.

This paper examines how a shift to enforceable professionalism standards may impact absolute immunity. The paper suggests that as other states consider similar standards or simply how to better policy professionalism, perhaps it is time to also consider how discipline is imposed with respect to defamatory statements that are otherwise …

Client Science: Advice For Lawyers On Initial Client Interviews, Marjorie Corman Aaron

Faculty Articles and Other Publications

My intent is to offer an informed, wise, practical, and concise guide for initial lawyer-client meetings – meetings that are mostly an interview process for the client and the lawyer. It is written for the Client Science Course website to supplement my book, Client Science: Advice for Lawyers on Counseling Clients Through Bad News and Other Legal Realities (Oxford University Press, 2012), referred to here as Client Science. That book was intentionally focused on particular challenges of client counseling

Lawyers In The Shadows: The Transactional Lawyer In A World Of Shadow Banking, Steven L. Schwarcz

Faculty Scholarship

This article examines how the role of transactional lawyers should change in the new world of shadow banking. Although transactional lawyers should consider the potential systemic consequences of their client's actions, their actions should be tempered by their primary duties to the client and by their responsibilities to the l,egal system more broadly.

Lawyer Conflicts Of Interest And Sophisticated Clients, Kevin C. Mcmunigal

Utah OnLaw: The Utah Law Review Online Supplement

I like many things about Professor Milan Markovic’s article on which I have been invited to comment. He has chosen an interesting, important, and timely topic and provides a detailed and persuasive critique of the ability of sophisticated clients to understand and protect themselves from the dangers presented by attorney conflicts of interest. I found particularly interesting his examination of the psychological issues that surround a lawyer obtaining a client’s consent to a conflict of interest.

I devote this commentary, though, to two aspects of Professor Markovic’s article I find puzzling. The first is the modesty of the remedial measures …

Minding The Court: Enhancing The Decision-Making Process, Pamela Casey, Kevin Burke, Steve Leben

Faculty Works

A compelling and growing body of research from the fields of cognitive psychology and neuroscience provides important insights about how we process information and make decisions. This research has great potential significance for judges, who spend much of their time making decisions of great importance to others. For most judges, this research literature is not part of their judicial education. This article reviews cutting edge research about decision making and discusses its implications for helping judges and those who work with them produce fair processes and just outcomes. It builds on a 2007 American Judges Association paper that encouraged judges …

Achieving Procedural Goals Through Indirection: The Use Of Ethics Doctrine To Justify Contingency Fee Caps In Mdl Aggregate Settlements, Morris A. Ratner

Faculty Scholarship

No abstract provided.

Waiving Goodbye To A Fundamental Right: Allocation Of Authority Between Attorneys And Clients And The Right To A Public Trial, 38 J. Legal Prof. 1 (2013), Alberto Bernabe

UIC Law Open Access Faculty Scholarship

No abstract provided.

Survey Of Illinois Law: Waiver Of The Attorney-Client Privilege And Work Product Protection, 37 S. Ill. U. L.J. 825 (2013), Ralph Ruebner, Katarina Durcova

UIC Law Open Access Faculty Scholarship

Effective January 1, 2013, two new Illinois Supreme Court rules clarify and limit the waiver of the attorney-client privilege and work product protection rule. Illinois Rule of Evidence 502 ("IRE 502"), which spells out the limitations on waiver, is accompanied by a "clawback provision" in Illinois Supreme Court Rule 201(p) ("Rule 201(p)") that details the procedural steps a disclosing party should take to successfully assert the privilege following an inadvertent discovery disclosure. Additionally, these changes clarify the mandatory duty of the receiving party. IRE 502 was modeled on Federal Rule of Evidence 502 ("FRE 502") and Rule 201(p) was modeled …

Foreword To The Conference: The Law: Business Or Profession? The Continuing Relevance Of Julius Henry Cohen For The Practice Of Law In The Twenty-First Century, Samuel J. Levine

Scholarly Works

No abstract provided.

Law Firm Malpractice Disclosure: Illustrations And Guidelines, Anthony V. Alfieri

Articles

No abstract provided.

What Do Clients Want From Their Lawyers?, Clark D. Cunningham

Faculty Publications By Year

This working paper assembles empirical data from England, Australia and the United States indicating that individual clients do not evaluate their lawyers - as attorneys frequently assume - primarily in terms of the outcomes achieved. Rather, clients place greater weight on the quality of communication with their lawyers and are often disappointed by failure to listen carefully and explain clearly. The paper concludes with suggestive survey data that organizational clients may have similar views about the large firm lawyers that represent them. The author is the director of the Effective Lawyer-Client Communication Project and the National Institute for Teaching Ethics …

Unregulated Corporate Internal Investigations: Achieving Fairness For Corporate Constituents, Bruce A. Green, Ellen S. Progdor

Faculty Scholarship

This article focuses on the relationship between corporations and their employee constituents in the context of corporate internal investigations, an unregulated multi-million dollar business. The classic approach provided in the 1981 Supreme Court opinion, Upjohn v. United States, is contrasted with the reality of modern-day internal investigations that may exploit individuals to achieve a corporate benefit with the government. Attorney-client privilege becomes an issue as corporate constituents perceive that corporate counsel is representing their interests, when in fact these internal investigators are obtaining information for the corporation to barter with the government. Legal precedent and ethics rules provide little relief …

Transnational Legal Practice (International) [In 2010-2012], Laurel S. Terry

Faculty Scholarly Works

This article covers three years of Transnational Legal Practice developments outside of the US. (It is the companion piece to 47 Int'l Law. 499 (2013) which discusses US developments.) This article discusses the approval of an Alternative Business Structure licensing system by the UK Solicitors Regulation Authority and its subsequent issuance of ABS licenses. The second section reviews the emergence of the “Troika” as a new regulatory influence in Europe, citing as an example the joint ABA-CCBE letter to the IMF. (The Troika refers to the International Monetary Fund, the European Central Bank, and the European Commission.) The third section …

Transnational Legal Practice (United States) [In 2010-2012], Laurel S. Terry

Faculty Scholarly Works

This article covers three years of Transnational Legal Practice developments in the U.S. (It is the companion article to 47 Int’l Lawyer 485 (2013) which discusses transnational legal practice developments outside of the U.S.) This article begins by briefly reviewing the uncertainty about the future of U.S. legal education and legal services. The next section discusses the proposals and changes that emanated from the ABA Commission on Ethics 20/20, which was tasked with evaluating what changes were needed in light of globalization and technology developments. The third section of this article discusses the Uniform Bar Exam and its implications for …

Trends In Global And Canadian Lawyer Education, Laurel S. Terry

Faculty Scholarly Works

Globalization and technology have changed the practice of law in dramatic ways. This is true not only in the U.S. and Canada, but around the world. Global regulatory trends have begun to emerge as lawyer regulators have had to respond to new developments. In 2012, Australian regulators Steve Mark and Tahlia Gordon and the author, who is a U.S. academic, documented some of these global trends in lawyer regulation. See Laurel S. Terry, Steve Mark, & Tahlia Gordon, Trends and Challenges in Lawyer Regulation: The Impact of Globalization and Technology, 80 Fordham L. Rev. 2661 (2012), https://works.bepress.com/laurel_terry/95/. Their article concluded …

Reflections On Us Policies Regarding Effective Regulation And Discipline And Foreign Lawyer Mobility: Has The Time Come To Talk About The Elephant In The Room, Laurel S. Terry

Faculty Scholarly Works

The ABA has adopted four model policies that address, in one way or another, the issue of foreign lawyer mobility. These policies are the ABA Model Foreign Legal Consultant Rule, which is commonly known as the FLC rule, the ABA Model Rule for Temporary Practice by Foreign Lawyers, which is commonly known as the FIFO rule, ABA Model Rule of Professional Conduct 5.5, which permits foreign lawyers to serve as in-house counsel, and the ABA Model Rule on Pro Hac Vice Admission. All four of the ABA’s foreign lawyer mobility recommendations include a requirement that the mobile foreign lawyer is …

Behavioral Legal Ethics, Jean R. Sternlight, Jennifer K. Robbennolt

Scholarly Works

Complaints about lawyers’ ethics are commonplace. While it is surely the case that some attorneys deliberately choose to engage in misconduct, psychological research suggests a more complex story. It is not only “bad apples” who are unethical. Instead, ethical lapses can occur more easily and less intentionally than we might imagine. In this paper, we examine the ethical “blind spots,” slippery slopes, and “ethical fading” that may lead good people to behave badly. We then explore specific aspects of legal practice that can present particularly difficult challenges for lawyers given the nature of behavioral ethics - complex and ambiguous ethical …

Professionalism And The New Normal, Philip J. Weiser

Publications

No abstract provided.

Reassessing The Citizens Protection Act: A Good Thing It Passed, And A Good Thing It Failed, Rima Sirota

Georgetown Law Faculty Publications and Other Works

The Citizens Protection Act (CPA) of 1998 has always been a lightening rod for criticism, and it remains so today. This article reassesses the CPA’s perceived inadequacies in light of how it has actually affected (or, not affected) federal prosecutors’ involvement in criminal investigations. The article takes issue with the critics and demonstrates that the CPA succeeded where it should have, failed where it should have, and left us—however inadvertently—with a remarkably coherent and consistent approach to regulating federal prosecutors’ involvement in criminal investigations regardless of whether a suspect retains counsel early in the proceedings.

The CPA requires federal prosecutors …

Measuring Justice, Jane H. Aiken, Stephen Wizner

Georgetown Law Faculty Publications and Other Works

The research imperative of refining ways to measure justice is important and necessary. Our work as lawyers improves the more we know about our effectiveness and the more our choices are evidence based. Nevertheless, quantifying the work of a lawyer is not easy. How do we ensure that any measure of justice captures outcomes for both trial-based advocacy and non-trial-based advocacy on behalf of clients, including negotiated outcomes? How do we quantify the role lawyers play in listening to our clients, explaining the systems in which they operate, and supporting them through often very difficult times in their lives? How …

Gone Too Far: Federal Regulation Of Health Care Attorneys, Stacey A. Tovino

Faculty Articles

Outside health care counsel frequently obtain medical records, billing records, health insurance claims records, and other records containing individually identifiable health information in the course of representing health industry clients in medical malpractice, licensure, certification, accreditation, fraud and abuse, peer review, and other civil, criminal, and administrative health law matters. This Article is the first to argue that state rules of professional conduct, not federal health information confidentiality regulations, should govern outside health care counsel’s use and disclosure of confidential client information, and that outside counsel should be excepted from direct federal regulation under the HIPAA Privacy Rule.

Lawyers’ Professional Independence: Overrated Or Undervalued?, Bruce A. Green

Faculty Scholarship

This article explores the concept of lawyers’ "professional independence" in the literature of the U.S. legal profession. It begins with some reflections on the conventional meanings of professional independence, which encompasses both the bar’s collective independence to regulate its members and individual lawyers’ independence in the context of professional representations, including independence from clients, on one hand, and independence from third parties, on the other. The article suggests that the professional conduct rules are overly preoccupied with protecting lawyers’ professional independence from the corrupting influences of other professionals. The article then turns to an aspect of professional independence that has …

Why Punctuation Matters: Part Three, David Spratt

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Commentator’S Response To J. Goodwin 'Norms Of Advocacy', Camille Cameron

Articles, Book Chapters, & Popular Press

Professor Goodwin makes a case for the normative complexity of advocacy. She makes this case in the contexts of courtroom advocacy and advocacy in the public relations industry. I am going to examine that conclusion by reference to one of her two chosen case studies – courtroom advocacy. I am also going to agree with her conclusion that courtroom advocacy is normatively complex, although I will part company with her on a few points.

Goodwin has argued that the activity of arguing in court is normatively structured, in the sense that it is more than just persuasion, it is certainly …

Our Place In The World: A New Relationship For Environmental Ethics And Law, Jedediah S. Purdy

Faculty Scholarship

Forty years ago, at the birth of environmental law, both legal and philosophical luminaries assumed that the new field would be closely connected with environmental ethics. Instead, the two grew dramatically apart. This Article diagnoses that divorce and proposes a rapprochement. Environmental law has always grown through changes in public values; for this and other reasons, it cannot do so without ethics. Law and ethics are most relevant to each other when there are large open questions in environmental politics: lawmakers act only when some ethical clarity arises; but law can itself assist in that ethical development. This process is …

Lawyering For Groups: The Case Of American Indian Tribal Attorneys, Kristen A. Carpenter, Eli Wald

Publications

Lawyering for groups, broadly defined as the legal representation of a client who is not an individual, is a significant and booming phenomenon. Encompassing the representation of governments, corporations, institutions, peoples, classes, communities, and causes, lawyering for groups is what many, if not most, lawyers do. And yet, the dominant theory of law practice--the Standard Conception, with its principles of zealous advocacy, nonaccountability, and professional role-based morality--and the rules of professional conduct that codify it, continue to be premised on the basic antiquated assumption that the paradigmatic client-attorney relationship is between an individual client and an individual attorney. The result …

Nested Ethics: A Tale Of Two Cultures, Milton C. Regan

Georgetown Law Faculty Publications and Other Works

This article suggests that a law firm that desiring to promote ethical behavior by its lawyers needs to complement efforts to establish an “ethical infrastructure” and an “ethical culture” with attention to its broader organizational culture. Specifically, research indicates that the perception that an organization treats its members fairly–their sense of organizational justice--is an important factor in prompting members’ ethical behavior.

Many law firms in the last two or three decades have devoted attention to establishing what has been called an “ethical infrastructure” that reflects appreciation of the importance of organizational policies and procedures in encouraging ethical behavior. Such measures …

Motivation Matters: Guideline 10.13 And Other Mechanisms For Preventing Lawyers From Surrendering To Self-Interest In Responding To Allegations Of Ineffective Assistance In Death Penalty Cases, Tigran W. Eldred

Faculty Scholarship

Defense lawyers whose clients are sentenced to death are virtually guaranteed to be accused of ineffective assistance of counsel. The question is how they will respond. On one hand, lawyers alleged to be ineffective are obligated under Guideline 10.13 of the American Bar Association’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases to continue to safeguard the interests of their former clients, a duty that includes full cooperation in appropriate legal strategies chosen to pursue the ineffectiveness claim. On the other hand, lawyers who are accused of ineffectiveness often react defensively to the allegation, reflexively …

Prescriptions For Ethical Blindness: Improving Advocacy For Indigent Defendants In Criminal Cases, Tigran W. Eldred

Faculty Scholarship

The reasons criminal lawyers so often fail to provide adequate legal representation to indigent defendants are well-­known: severe underfunding, excessive workloads, and other disincentives for competent representation work together to encourage quick disposition of cases, with little regard for the quality of legal services that are provided. Yet, largely overlooked in this equation is whether defense lawyers who provide subpar representation are aware of their own shortcomings. To answer this question, this Article focuses on the psychology of ethical decision making. Relying on research that reveals the subtle ways that self-­interest can cause people to overlook unethical behavior, it argues …

Contingency Enhancements In Attorney Fee Cases: City Of Burlington V. Dague, The End Of Merit Systems Protection Board's Struggle To Understand And Apply Delaware Valley Ii , Cameron P. Quinn, Katharine A. Klos

Pepperdine Law Review

No abstract provided.