Legal Ethics and Professional Responsibility Commons^™

Drawing The Ethical Line: Controversial Cases, Zealous Advocacy, And The Public Good: Foreword, Lonnie T. Brown

Scholarly Works

Are lawyers handling controversial matters justified in being myopically fixated upon achieving their client's or the state's objectives, whatever the costs? Or is there a point at which the interests of the system or perhaps even the public must take precedence, requiring that unbridled zeal and loyalty take a backseat? Such fascinating questions were skillfully examined during the 10th Annual Legal Ethics and Professionalism Symposium, "Drawing the Ethical Line: Controversial Cases, Zealous Advocacy, and the Public Good." The published remarks and the articles that follow provide a glimpse into the difficult ethical line-drawing that was engaged in by a distinguished …

Clark Memorandum: Spring 2008, J. Reuben Clark Law Society, Byu Law School Alumni Association, J. Reuben Clark Law School

The Clark Memorandum

• On Being Ethical Lawyers (Sandra Day O'Connor)
• On the Wings of My Fathers (Larry Echo Hawk)
• The Relevance of Religious Freedom (Michael K. Young)
• A Walk by Faith (Elder Bruce C. Hafen)

Pro Bono Publico: The Growing Need For Expert Aid, Hannah J. Wiseman

Scholarly Publications

No abstract provided.

The Future Regulation Of The Legal Profession: The Impact Of Treating The Legal Profession As Service Providers, Laurel Terry

Faculty Scholarly Works

In the past fifty years, one has heard debates about whether law is a business, a profession, or both, what these terms mean and whether it matters. Regardless of what one thinks about these debates, there is a new paradigm that must be added to the mix, which is the paradigm of lawyers as "service providers." In the "service providers" paradigm, the legal profession is not viewed as a separate, unique profession entitled to its own individual regulations, but is included in a broader group of "service providers," all of whom can be regulated together. This new paradigm represents a …

Implementing A New City Charter: Thoughts On My Tenure As Corporation Counsel In A Time Of Transition, O. Peter Sherwood

NYLS Law Review

No abstract provided.

Coming Soon To A Law Practice Near You: The New (And Improved?) Illinois Rules Of Professional Conduct, 39 Loy. U. Chi. L.J. 691 (2008), Alberto Bernabe

UIC Law Open Access Faculty Scholarship

No abstract provided.

Re-Defining Pro Bono: Professional Commitment To Public Service, Gary A. Munneke

Elisabeth Haub School of Law Faculty Publications

This article suggests that the current version of Rule 6.1 of the Model Rules of Professional Conduct has not achieved its objective of fostering universal public and pro bono service among lawyers, and proposes a change to the current rule that hopefully will be more successful in achieving these laudable objectives. From the earliest days of the Anglo-American legal profession, lawyers have understood public, or pro bono publico, service to be fundamental to their identity as professionals. During the last half of the 20th century, however, this evolution became a revolution, as pro bono increasingly came to be identified with …

Working Around The Withdrawal Agreement: Statutory Evidentiary Safeguards Negate The Need For A Withdrawal Agreement In Collaborative Law Proceedings, Jennifer M. Kuhn

Campbell Law Review

This Comment will proceed by: (I) comparing state collaborative law statutes; (II) evaluating the current ethical climate surrounding withdrawal agreements in collaborative law; (III) considering the purpose of the withdrawal agreement and how evidentiary safeguards can provide the same incentives; and finally, concluding that statutory evidentiary safeguards eliminate the need for a mandatory withdrawal agreement in the collaborative law setting.

The Duty To Report Violations Of The Rules Of Professional Conduct: Alternative Views, Lloyd B. Snyder, Harry D. Cornett Jr.

Law Faculty Articles and Essays

Thomas Horwitz wrote a thoughtful, provocative article in the November edition of this Journal critizicing Ohio Advisory Opinion 2007-1. That opinion offers the view of the Board of Commissioners on Grievances and Discipline on several features of Rule 8.3 of the Ohio Rules of Professional Conduct. Rule 8.3 requires lawyers to report certain violations of the Rules. Failure to report is itself a violation of the Rules. Horwitz not only criticized the advisory opinion, he also disapproved the procedures followed by the Board in formulating its advisory opinion. The authors of this article disagree with Howitz and offer their views …

Peace On Earth, Goodwill In Divorce: Revisiting Travis In Light Of Oklahoma’S Revised Ethical Rule Allowing The Sale Of Law Practice Goodwill, Jennifer D. Ary-Hogue

Oklahoma Law Review

No abstract provided.

Ethical Issues In Collaborative Lawyering, Barbara Glesner Fines

Faculty Works

No abstract provided.

Fixed Justice: Reforming Plea-Bargaining With Plea-Based Ceilings, Russell D. Covey

Faculty Publications By Year

The ubiquity of plea bargaining creates real concern that innocent defendants are occasionally, or perhaps even routinely, pleading guilty to avoid coercive trial sentences. Pleading guilty is a rational choice for defendants as long as prosecutors offer plea discounts so substantial that trial is not a rational strategy regardless of guilt or innocence. The long-recognized solution to this problem is to enforce limits on the size of the plea/trial sentencing differential. As a practical matter, however, discount limits are unenforceable if prosecutors retain ultimate discretion over charge selection and declination. Because the doctrine of prosecutorial charging discretion is immune to …

True Believers At Law: National Security Agendas, The Regulation Of Lawyers, And The Separation Of Powers, Peter Margulies

Law Faculty Scholarship

Ideological agendas distort the deliberation required for sound legal advice about national security. Elite government lawyers after September 11 advanced a theory at the expense of context, labeling legal constraints as "lawfare" against American interests. The lawfare critics failed to recognize that legal constraints can empower decision makers by reinforcing reputational and other long-term values. They also failed their history test, ignoring the lessons of presidents from Jefferson to Kennedy who rejected a rigid adherence to ideology in the national security realm. By discounting context, the construction of the lawfare paradigm produced dire results, including the torture memos drafted by …

Pressures Toward Mediocrity In The Representation Of Children, Barbara Glesner Fines

Faculty Works

When children are the subject of dependency, adoption or guardianship proceedings, protecting those children requires attention to a variety of interests. Children need a voice: an advisor and an advocate whose judgment is unclouded by conflicting interests. Courts need information that the adult parties to the proceedings may not easily discover or willingly provide. The families and social services agencies need monitors and mediators. The attorney guardian ad litem (GAL) is, in many situations, called upon to meet all these needs. During the past decade, major academic conferences and professional organizations have devoted thousands of hours to developing standards of …

In Re Cardinal Health, Inc. Securities Litigation, Lucas T. Charleston

NYLS Law Review

No abstract provided.

Lawyers For Government Have Unique Responsibilities And Opportunities To Influence Public Policy, Frederick A.O. Schwarz Jr.

NYLS Law Review

No abstract provided.

The Independence Of The Law Department, Jeffrey D. Friedlander

NYLS Law Review

No abstract provided.

The Inevitability Of Conscience: A Response To My Critics, David Luban

Georgetown Law Faculty Publications and Other Works

This essay by Professor David Luban is written in response to critics of his book, Legal Ethics and Human Dignity.

In part I Professor Luban addresses the primacy that he assigns conscience over the professional role and focuses mainly on the arguments of his critics, Professors Norman Spaulding and W. Bradley Wendel. Part II explores the challenge of pluralism, replying primarily to Professors Katherine Kruse, Spaulding, and Wendel. Part III, in response to Professors Kruse and William Simon, elaborates on the concept of human dignity. Part IV discusses institutions and ethics, focusing on Professors Susan Carle and Simon. The …

International Legal Practice Involving England And New York Following Adoption Of The United Kingdom Legal Services Act Of 2007, Sydney M. Cone Iii.

Articles & Chapters

This article deals with the regulation of legal services in England and New York in the context of, first, multidisciplinary practice ("MDP")1 and, second, permitted investment in legal practice. The article summarizes both the background of and potential differences between the regulations in those two jurisdictions, and comments on the possible reconciliation of those differences. Because, chronologically, New York was the first of the two jurisdictions under consideration to adopt rules on MDP, the New York rules will be considered first, and the more recent statute, known as the United Kingdom Legal Services Act 2007 2(hereinafter "U.K. Act"), will then …

Technology Mediated Dispute Resolution Can Improve The Registry Of Interpreters For The Deaf Ethical Practices System: The Deaf Community Is Well Prepared And Can Lead By Example, David Allen Larson, Paula Gajewski Mickelson

Cardozo Journal of Conflict Resolution

This article examines the mediation process within the Registry of Interpreters for the Deaf Ethical Practices System and suggests when and how technology may be utilized to enhance that process. Background information regarding the interpreting profession, the Deaf Community, and the process for filing and reviewing grievances will provide a context for this discussion. An overview of the technologies already being used within the Deaf Community and interpreting field will help to determine where new technologies can be introduced most effectively. Each of the three steps in the EPS will be analyzed to assess how additional technologies can be integrated …

Mandatory Legal Education Is A Step In The Right Direction, Richard Devlin, Jocelyn Downie

Articles, Book Chapters, & Popular Press

For decades, and from sea to sea to sea, many Canadian lawyers have resisted and ridiculed mandatory continuing legal education (MCLE). But the winds of change are blowing from the West.

As of January 2009 all lawyers in British Columbia will be obliged to complete 12 hours of “continuing professional development” per year. While some other provinces have imposed mandatory reporting obligations for CLE, British Columbia is the first to grasp the nettle and make actual participation in CLE mandatory. There are a number of compelling reasons for concluding that this is a very good thing.

Structure And Integrity, Susan Carle

Scholarly Articles in Law Reviews & Journals

In this Review Essay of David Luban's Legal Ethics and Human Dignity, I argue that although Professor Luban has not had much to say until now about "structural" concerns - namely, how lawyers' locations within institutions that organize access to power shape or should shape those lawyers' conduct - in his most recent work, another approach slips in as a supplement to his individualist framework. In this emerging supplement, structural concerns become increasingly important. Although individual integrity continues to matter most in Professor Luban's world view, it increasingly matters in the context of structural relations in which lawyers' ethical duties …

Business Lawyers, Baseball Players, And The Hebrew Prophets, Thomas L. Shaffer

Journal Articles

This article is a reflection on the ethics of practiving law for business, building on the career of Scott Boras, who acts as agent and lawyer for professional baseball players. The reflection wonders at the clout corporate lawyers have over their clients, mentioning, of course, some personal experiences (back before the invention of moveable type) from the author's two years in a large business-oriented law firm, as well as on Mr. Boras's significant influence in the baseball world. The object, finally, is ethical reflection on such things as the particular a lawyer has when she in in house rather than …

The Model Rules Of Professional Conduct And Serving The Non-Legal Needs Of Clients: Professional Regulation In A Time Of Change, Robert Rubinson

All Faculty Scholarship

The practice of law is changing. Lawyers who act solely as advocates and zealous representatives of clients in legal matters still represent the core of what lawyers do and of how many lawyers see their work, but other trends are filtering into "on the ground" practice. Increasing numbers of lawyers are mediating, consulting on traditionally non-legal issues, and approaching clients' needs "holistically" by associating with and integrating other professional services. These trends cut across virtually all segments of the profession, from prosecutors and criminal defense lawyers, to lawyers whose practices involve, among other things, public interest work, personal injury, family …

In The Public Interest': The Responsibilities And Rights Of Government Lawyers, Allan C. Hutchinson

Osgoode Hall Law Journal

While considerable thought and effort have been put into exploring and fixing the ethical rights and professional responsibilities of private Lawyers, little energy has been directed towards defining and defending the role and duties of government lawyers. As a result, the traditional understanding seems to be that government lawyers are to consider themselves as being under the same regimen and restrictions as their private counterparts. After criticizing this default approach, the article offers a fresh evaluation of what is different about the role of government lawyers and develops a more appropriate model for thinking about their professional responsibilities and ethical …

The Public Interest, Professionalism, And Pro Bono Publico, Lorne Sossin

Osgoode Hall Law Journal

There is a clear public interest benefit for lawyers to ensure access to the rule of law, especially on the part of the vulnerable. This article seeks to show that the seemingly simple relationship between the legal profession and the public interest is in fact more complicated than it looks. Pro bono may be viewed from two perspectives-that of the lawyer and that of the client. From the perspective of the lawyer, the important question is whether there is ethical motivation to engage in pro bono. If, however, the perspective of the client is paramount, then meeting the client's needs …

Does Civility Matter?, Alice Woolley

Osgoode Hall Law Journal

Recent discussion of legal ethics in Canada has focused on the importance of "civility" as a fundamental value and goal of ethical conduct. This comment questions that focus. After defining the content of "civility' and reviewing its treatment in these initiatives by both the law societies and the courts, the author suggests that the emphasis on civility is misplaced. Focusing on civility has the undesirable tendency to impede lawyer reporting of misconduct by other lawyers and potentially undermines the effective representation of client interests. It also shifts emphasis away from the ethical values that should be the focus of our …

Lawyer Deception To Uncover Wrongdoing, Lloyd B. Snyder

Law Faculty Articles and Essays

A Colorado district attorney used deception to get a man who had murdered three people and was threatening to kill again to surrender himself to the police. Following this, the Colorado Attorney Regulation Counsel charged the attorney with violating Rules 8.4(c) and 4.3 of the Colorado Rules of Professional Conduct. This article discusses the Rule 8.4(c) charge. Colorado and Ohio have identical provisions in their Codes of Professional Conduct on dishonesty and violations of professional conduct rules.

Convocation On The Face Of The Profession: Judicial Institute On Professionalism In The Law, Stephen J. Friedman

Pace Law Review

No abstract provided.

A How To Guide For Incorporating Global And Comparative Perspectives Into The Required Professional Responsibility Course, Laurel S. Terry

Faculty Scholarly Works

This article was written for an AALS symposium on "Teaching Legal Ethics" and discusses how to incorporate global and comparative perspectives into the required Professional Responsibility course. The scope of the paper is much broader, however. The first half of the paper explains why global and comparative perspectives are relevant to contemporary law practice. This section explains why global perspectives are relevants to clients and lawyers and explains why lawyer regulators now use a more global approach to regulation than previously. The second half illustrates how one can introduce global and comparative perspectives into a professional responsibility course without taking …