Legal Ethics and Professional Responsibility | Open Access Articles

Reflections On James N. Castleberry, Jr., Dean (1978-1989), St. Mary's University School Of Law Tribute., Charles E. Cantu

St. Mary's Law Journal

Abstract Forthcoming.

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My How You've Grown: The St. Mary's Law Journal Turns Forty Remark., Martin D. Beirne

St. Mary's Law Journal

Abstract Forthcoming.

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Chapters In The History Of The Supreme Court Of Texas: Reconstruction And Redemption (1866-1882)., Hans W. Baade

St. Mary's Law Journal

Abstract Forthcoming.

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It's About Time: The Need For A Uniform Approach To Using A Prior Conviction To Impact A Witness., Robert F. Holland

St. Mary's Law Journal

In Texas, no uniform approach exists in determining whether to admit evidence of a prior conviction as a technique to impeach a witness. This lack of uniformity leads to significant consequences for the parties and poses a potential prejudicial effect on the truthful character of a witness. Furthermore, there is currently no bright-line judicial standard when evaluating the admissibility of certain prior convictions. Although the Texas Court of Criminal Appeals in Theus v. State provided a non-exhaustive set of factors for trial judges to consider, the court has yet to clarify particular aspects of how to properly apply Texas Rule …

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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

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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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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Fulfilling Your Professional Responsibilities: Representing A Deaf Client In Texas Recent Development., Matthew S. Compton

St. Mary's Law Journal

Abstract Forthcoming.

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A Tribute To Ernest A. Raba, Dean (1946-1978), St. Mary's University School Of Law Tribute., Aloysius A. Leopold

St. Mary's Law Journal

Abstract Forthcoming.

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Henry F. Johnson Professor Of Law (1981-2008), St. Mary's University School Of Law Tribute., Bonita K. Roberts

St. Mary's Law Journal

As a way to deal with his loss, this eulogy honors Henry Johnson (1942-2008) by focusing on ten good things about him. As a former English teacher, he valued clarity and precision, which reflects another good thing about Henry: the importance of strong organization. His zest for travel enabled him to share voluminous details about countless countries around the world, including where the best restaurants and wineries were. No description would be complete without emphasizing his love for golf, but the most important thing about Henry was the way he cared for his family, friends, and animals.

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The Competency Of The Sham Affidavit As Summary Judgment Proof In Texas., David F. Johnson, Joseph P. Regan

St. Mary's Law Journal

The United States Court of Appeals for the Fifth Circuit first addressed the sham affidavit theory in Kennett-Murray Corp. v. Bone. This is the doctrine regarding assertions made by affidavit in order to prove summary judgment which are contrary to prior statements given, usually during a deposition. More recently, the Fifth Circuit has used the theory to strike affidavits where it found a sufficient inconsistency existed. This Court has also applied the sham affidavit theory to any prior sworn testimony, not just deposition testimony. The adoption of this theory overturned the precedent which stated a factual issue existed where a …

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American Legal Ethics In An Age Of Anxiety., Michael Ariens

St. Mary's Law Journal

The thesis of my article, “American Legal Ethics in an Age of Anxiety,” is that the historical development of American legal ethics was regularly accompanied by an anxiety within the profession. In general, I suggest the legal profession’s understanding of its ethical precepts has been molded and reshaped during periods of professional anxiety. The profession’s understanding of legal ethics changed dramatically during various crises in the 19th century, exemplified by the different approaches taken by David Hoffman in the mid-1830s, George Sharswood in the mid-1850s, and David Dudley Field in the early 1870s. In each case, however, the triggering event …

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The Texas School Finance Litigation Saga: Great Progress, Then Near Death By A Thousand Cuts., Albert H. Kauffman

St. Mary's Law Journal

The Texas Legislature’s system for financing Texas schools is significantly more equitable after Edgewood v. Kirby. Edgewood I and Edgewood II effectively forced the legislature to improve the finance system. However, the rulings in the first two Edgewood cases have been whittled away by the last four Edgewood decisions.. As a result, courts now approach fundamental issues, legislative power, and the relationship between them differently. The Edgewood v. Kirby legacy still improves the equity and adequacy of Texas’s public education finance system. This legacy is expanded upon with observations regarding long term impacts of the Texas school finance litigation saga.

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The All-Woman Texas Supreme Court: The History Behind A Brief Moment On The Bench., Alice G. Mcafee

St. Mary's Law Journal

On the surface, there is nothing particularly noteworthy about the case of Johnson v. Darr, and, in fact it was not the merits of the case that made the headlines. It was the makeup of the tribunal. Long before women in Texas were even granted the right to serve on juries and before any woman ever served as a judge on any of the lower Texas courts, the judges appointed to hear the case of Johnson v. Darr were all women. This was the first time a woman was appointed in any capacity to serve on the Texas judiciary and …

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On The Trail To Increased Client Protection: Attorney Contingent Fee Contract Termination In Light Of Hoover V. Walton Recent Development., Tiffanie S. Clausewitz

St. Mary's Law Journal

Abstract Forthcoming.

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A Marginal Tax: The New Franchise Tax In Texas Comment., David A. Vanderhider

St. Mary's Law Journal

Taxation has long been a point of contention for both individuals and businesses. Primarily, taxation serves as a convenient and calculated method of allocating precious resources to areas in need. Although many states use property and income taxes as the preferred methods for funding these programs, Texas has a constitutional restriction on state taxation of individuals’ incomes. This means Texas has largely relied on property and business taxes to fund these programs. In 1991, while trying to avoid unconstitutional taxes on individuals’ incomes, the Texas Legislature adopted a franchise tax which taxed Texas businesses according to their capital. In 2006, …

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Surreptitious Recording By Attorneys: Is It Ethical., Carol M. Bast

St. Mary's Law Journal

Ethical rules generally set forth commonly held ethics principles in broad terms which usually generate little debate. What has generated a great deal of debate is whether it is ethical for an attorney to record a conversation. The American Bar Association’s (ABA) view of the issue has shifted over the years. Originally, the practice was held to be unethical except for certain well-defined exceptions involving government attorneys. The 2001 ABA opinion officially withdrew the original opinion allowing attorneys to secretly record a conversation with a non-client where it is not illegal. States’ opinions as to whether conversation recording is ethical …

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Lawfare And Legal Ethics In Guantánamo, David Luban

Georgetown Law Faculty Publications and Other Works

This paper, part of a symposium on the legal profession, focuses on the lawyers – some civilian and some military – who represent detainees at Guantánamo Bay. These include civilian counsel representing Guantánamo prisoners in habeas proceedings, as well as civilian and military defense counsel for those facing trial before military commissions. Using published sources as well as interviews with some of the lawyers, the paper examines the tactics by which the U.S. government has tried to disrupt the effective representation of Guantánamo detainees. In the case of habeas lawyers, whose very presence at Guantánamo is unwelcome by the government, …

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Settler's Remorse, Floyd Abrams

Michigan Law Review

Who can quarrel with the notion that settling civil cases is generally a good thing? Litigation is expensive, time-consuming, preoccupying, and often personally destructive. Our courts are overburdened and, in any event, imperfect decision-making entities. It may even be true that, more often than not, "the absolute result of a trial is not as high a quality of justice as is the freely negotiated, give a little, take a little settlement." But not every case should be settled. Many are worthless. The settlement of others could too easily lead to a torrent of unwarranted litigation. Sometimes, as Professor Owen Fiss …

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Challenges And Guidance For Lawyering In A Global Society The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility: Foreword., Susan Saab Fortney

St. Mary's Law Journal

Abstract Forthcoming.

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Thompson/Mcnulty Memo Internal Investigations: Ethical Concerns Of The Deputized Counsel The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility: Essay., Colin P. Marks

St. Mary's Law Journal

Outside counsel who conduct internal investigations for corporate clients have always faced ethical concerns, especially when interviewing employees. Generally, a carefully crafted blanket statement at the beginning of the interview explaining outside counsel's role was sufficient to address these concerns. However, recent charging policies adopted by the Department of Justice ("DOJ") have drastically changed the rules. These policies, articulated in what is now commonly referred to as the "Thompson Memo," after the author and then Deputy General Larry Thompson, allowed prosecutors to consider factors such as waivers of the attorney-client privilege and work-product protections and whether the company provides legal …

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Enforceability Of General Advance Waivers Of Conflicts Of Interest The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility., Nathan M. Crystal

St. Mary's Law Journal

Conflicts of interest among clients present some of the most pervasive ethical problems lawyers face. In many instances the affected clients may consent to a conflict. Under the ABA Model Rules of Professional Conduct, for consent to be effective, it must be “informed” and must be “confirmed in writing.” Informed consent to such conflict is often referred to as a “waiver” of the conflict. Many law firms have begun seeking “general advance waivers” of conflicts of interest. The ethical rules did not deal with the issue of advance waiver until 2002. Both Model Rules and the Restatement of the Law …

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The Changing Face Of Vested Rights In Texas Land Development: A New Hat For An Old Law., Rebecca A. Copeland

St. Mary's Law Journal

The Texas Legislature has recently made changes to Chapter 245 of the Local Government Code giving vested rights greater protection than ever before. Owners and developers now have greater protections, however, there are many circumstances under which the application of the law is unclear. Chapter 245 governs the issuance of permits for local development. The greater protections provided by the amendments include: defining the filing date upon which rights vest as the date “fair notice” is given to the regulatory agency, establishing a certified mail date as prima facie proof of the application’s filing date, and providing substantive rules governing …

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Judicial Review Of Arbitration Awards In The Fifth Circuit., Christopher D. Kratovil

St. Mary's Law Journal

In the wake of a defeat in arbitration, trial lawyers seek appellate counsel looking for some method to escape the arbitrator’s decision. Most leave such offices disappointed after having been informed arbitration awards will be set aside by the courts “only in very unusual circumstances.” The Federal Arbitration Act (FAA) fully endorses arbitration and liberally encourages its use as an alternative to traditional litigation. Consistent with Congress’ focus on speed, efficiency, and cost reduction, a critical goal of arbitration is to establish “finality” at the earliest possible point. Unfortunately, early finality is antithetical to robust appellate proceedings. Yet, the FAA …

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The Storm Between The Quiet: Tumult In The Texas Supreme Court, 1911-21., Michael S. Ariens

St. Mary's Law Journal

The Texas Supreme Court from 1911–1921 is best known not for the law it made or the opinions it wrote, but for its failure to decide cases. Although the supreme court’s difficulty in clearing its docket existed before 1911, the number of outstanding cases exploded during the second decade of the twentieth century. Arguably, the issue of statewide prohibition and the divergent views held on that issue by members of the Texas Supreme Court was the driving force behind the disharmony and dysfunctionality of the court during this decade. Statewide prohibition explains why elections of candidates to the court were …

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Setting The Limits In Texas Construction Law: A Look At The Surety's Limitations Under Indemnity Agreements And Equitable Subrogation Comment., John C. Warren

St. Mary's Law Journal

To clarify divergent case law, Texas courts should adopt good faith as the necessary standard governing indemnity agreements. Texas court decisions limiting settlement of bond claims by sureties can be split into three categories: (1) those cases where indemnity agreements fail to vest authority in the indemnitee to settle claims or require a good faith standard; (2) those expressly stating indemnitees have authority to settle claims in good faith; and (2) those expressly vesting a surety with exclusive rights to determine which bonded claims should be settled. Under the first line of cases courts apply common law indemnity principles requiring …

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Parties' Defenses To Binding Arbitration Agreements In The Health Care Field & The Operation Of The Mccarran-Ferguson Act Comment., Elizabeth K. Stanley

St. Mary's Law Journal

Arbitration is a process which allows parties voluntarily to refer their disputes to an impartial third person, an arbiter, selected by them to determine the parties’ rights and liabilities. Initially, arbitration was encouraged between corporate entities with equal bargaining power. But, due to federal policy favoring arbitration, the use of predispute arbitration agreements have increased dramatically, and such clauses can now be found in many noncommercial consumer contracts, especially those in the health care industry. The strong federal policy favoring arbitration originated with Congress’ passing of the Federal Arbitration Act (FAA). Under the FAA, an arbitration agreement is enforceable if …

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Microsoft Windows Vista: The Beginning Or The End Of End-User License Agreements As We Know Them Recent Development., Rebecca K. Lively

St. Mary's Law Journal

Microsoft Windows Vista’s widespread use and influence on the market represents an ideal case study on the enforceability, pitfalls, and future of the End-User License Agreement (EULA). Since the release of the Windows Vista operating system in early 2007, Microsoft consumers often do not realize they are entering into a contract with Microsoft when they install Windows Vista onto their computer. Microsoft consumers probably do not realize that they may be clicking away valuable rights. In analyzing the enforceability of the specific terms of the Windows Vista EULA, Washington law will be the primary source because the Windows Vista EULA …

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The Trans-Texas Corridor Plan: Will Best Value Highway Contract Procurement Under Comprehensive Development Agreements Leave The Lowest Competitive Bidder In The Dust Comment., Jason C. Petty

St. Mary's Law Journal

Abstract Forthcoming.

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Brother's Keeper: The Legal Ethics Of Representing Family Members The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility: Comment., Jason W. Whitney

St. Mary's Law Journal

This Comment seeks to provide practical guidance in evaluating ethical issues for Texas attorneys considering representing a relative. Attorneys must always look to the relevant rules of professional conduct, advisory opinions, and case law to evaluate whether or not representation adheres to ethical guidelines. The primary sources of guidance are the Texas Disciplinary Rules of Professional Conduct (Texas Disciplinary Rules), advisory opinions from the Supreme Court of Texas Professional Ethics Committee (Texas Professional Ethics Committee), and Texas case law. Part II of this Comment discusses the history of professional responsibility, characteristics of representing family members, and common ethical problems arising …

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Full-Text Articles in Legal Ethics and Professional Responsibility

Reflections On James N. Castleberry, Jr., Dean (1978-1989), St. Mary's University School Of Law Tribute., Charles E. Cantu

St. Mary's Law Journal

My How You've Grown: The St. Mary's Law Journal Turns Forty Remark., Martin D. Beirne

St. Mary's Law Journal

Chapters In The History Of The Supreme Court Of Texas: Reconstruction And Redemption (1866-1882)., Hans W. Baade

St. Mary's Law Journal

It's About Time: The Need For A Uniform Approach To Using A Prior Conviction To Impact A Witness., Robert F. Holland

St. Mary's Law Journal

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

St. Mary's Law Journal

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

St. Mary's Law Journal

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

Fulfilling Your Professional Responsibilities: Representing A Deaf Client In Texas Recent Development., Matthew S. Compton

St. Mary's Law Journal

A Tribute To Ernest A. Raba, Dean (1946-1978), St. Mary's University School Of Law Tribute., Aloysius A. Leopold

St. Mary's Law Journal

Henry F. Johnson Professor Of Law (1981-2008), St. Mary's University School Of Law Tribute., Bonita K. Roberts

St. Mary's Law Journal

The Competency Of The Sham Affidavit As Summary Judgment Proof In Texas., David F. Johnson, Joseph P. Regan

St. Mary's Law Journal

American Legal Ethics In An Age Of Anxiety., Michael Ariens

St. Mary's Law Journal

The Texas School Finance Litigation Saga: Great Progress, Then Near Death By A Thousand Cuts., Albert H. Kauffman

St. Mary's Law Journal

The All-Woman Texas Supreme Court: The History Behind A Brief Moment On The Bench., Alice G. Mcafee

St. Mary's Law Journal

On The Trail To Increased Client Protection: Attorney Contingent Fee Contract Termination In Light Of Hoover V. Walton Recent Development., Tiffanie S. Clausewitz

St. Mary's Law Journal

A Marginal Tax: The New Franchise Tax In Texas Comment., David A. Vanderhider

St. Mary's Law Journal

Surreptitious Recording By Attorneys: Is It Ethical., Carol M. Bast

St. Mary's Law Journal

Lawfare And Legal Ethics In Guantánamo, David Luban

Georgetown Law Faculty Publications and Other Works

Settler's Remorse, Floyd Abrams

Michigan Law Review

Challenges And Guidance For Lawyering In A Global Society The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility: Foreword., Susan Saab Fortney

St. Mary's Law Journal

Thompson/Mcnulty Memo Internal Investigations: Ethical Concerns Of The Deputized Counsel The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility: Essay., Colin P. Marks

St. Mary's Law Journal

Enforceability Of General Advance Waivers Of Conflicts Of Interest The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility., Nathan M. Crystal

St. Mary's Law Journal

The Changing Face Of Vested Rights In Texas Land Development: A New Hat For An Old Law., Rebecca A. Copeland

St. Mary's Law Journal

Judicial Review Of Arbitration Awards In The Fifth Circuit., Christopher D. Kratovil

St. Mary's Law Journal

The Storm Between The Quiet: Tumult In The Texas Supreme Court, 1911-21., Michael S. Ariens

St. Mary's Law Journal

Setting The Limits In Texas Construction Law: A Look At The Surety's Limitations Under Indemnity Agreements And Equitable Subrogation Comment., John C. Warren

St. Mary's Law Journal

Parties' Defenses To Binding Arbitration Agreements In The Health Care Field & The Operation Of The Mccarran-Ferguson Act Comment., Elizabeth K. Stanley

St. Mary's Law Journal

Microsoft Windows Vista: The Beginning Or The End Of End-User License Agreements As We Know Them Recent Development., Rebecca K. Lively

St. Mary's Law Journal

The Trans-Texas Corridor Plan: Will Best Value Highway Contract Procurement Under Comprehensive Development Agreements Leave The Lowest Competitive Bidder In The Dust Comment., Jason C. Petty

St. Mary's Law Journal

Brother's Keeper: The Legal Ethics Of Representing Family Members The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility: Comment., Jason W. Whitney

St. Mary's Law Journal