Legal Ethics and Professional Responsibility Commons^™

Beyond Thinking Like A Lawyer: Lonergan's Transcendental Method And The Formation Of Ethical Lawyers, Sigrid Vendrell-Polanco

San Jose - Lonergan Chair in Catholic Philosophy

Law schools have long promised to teach students to "think like lawyers."1 We teach students to read cases carefully, identify legally significant facts, extract rules from precedent, distinguish adverse authority, construct arguments, and predict how courts are likely to resolve disputes. These are indispensable skills. But they leave open a more fundamental question: What kind of lawyer are we teaching our students to become?2 Legal education is extraordinarily good at teaching students how to determine what the law is and what the law allows. We are perhaps less intentional about teaching them to ask what, as lawyers, they ought to …

Google’S Misuse Of The Attorney-Client Privilege: A Call For Stronger Corporate Standards, Ally Raven

St. Mary's Journal on Legal Malpractice & Ethics

No abstract provided.

A Revolution Of Rational Civility, Honorable Douglas S. Lang

St. Mary's Journal on Legal Malpractice & Ethics

This Article addresses a blind spot in the theorizing and debate over originalist interpretation: the implications of rules of legal ethics.  For the few originalist theorists who take the practical side of originalism seriously, attorneys’ rules of professional conduct are almost entirely absent from the discussion.  Incivility is at epidemic proportions in our society.  That condition is unacceptable.

This Article argues for each of us, lawyers and everyone in all walks of life, to take action and not merely offer lip service to push back against incivility.  We must repel incivility.  This “push back” is not compelled alone by written …

Navigating Borders: Law Practice And Alternative Business Structures In The United States And Abroad, Katerina P. Lewinbuk

St. Mary's Journal on Legal Malpractice & Ethics

No abstract provided.

On Becoming A Lawyer: Authentic Professional Identity Formation And The Future Of Legal Education, Colin Black

St. Mary's Journal on Legal Malpractice & Ethics

No abstract provided.

A Light In The Darkness: Tribute To Professor Emeritus Vincent R. Johnson, Sarah Nicole Peacock

St. Mary's Journal on Legal Malpractice & Ethics

No abstract provided.

Teaching Cross-Cultural Communication In Law School: Lessons From Medicine, Social Work, And Business, Mireille Butler, Jaclyn Celebrezze

St. Mary's Journal on Legal Malpractice & Ethics

Legal clients in the United States are increasingly multilingual and multicultural. More than 71 million people living in the United States communicate in a language other than English. Consequently, the lawyer’s duty of shared understanding is taking on new meaning. With the advent of ABA Ethics Opinion 500, cross-cultural communication skills are a lawyer’s ethical duty and a law school’s mandate. Additionally, ABA Standard 303(c) and the potential of increased experiential learning credit requirements make clear that immediate curricular changes are needed. To prepare for the modern practice of law, tomorrow’s lawyers need to develop cross-cultural skills while in law …

Legal Representation And Public Criticism, Michael Ariens

St. Mary's Journal on Legal Malpractice & Ethics

No abstract provided.

Bigger Isn’T Always Better: The Texas-Size Problem Of Overbreadth In Criminal Discovery, Allison Siegwald

St. Mary's Journal on Legal Malpractice & Ethics

No abstract provided.

Pro Bono, Supplied And Demanded, Anita Bernstein

St. Mary's Journal on Legal Malpractice & Ethics

. Of the fifty-six blackletter provisions in the Model Rules of Professional Conduct, the rule about pro bono is the only one that tells lawyers they “should”—rather than must, must not, or may—take a particular action. This verb, which in effect says: “You deserve praise if you do it but hey, no pressure,” embodies the partial perspective that dominates pro bono—partial in the sense of both incomplete and biased. Valorizing pro bono while imposing no consequences on people who fail to perform it indulges and flatters what this Article calls pro bono’s supply side. Bar leaders, rule writers led by …

Ethics And Originalism, Michael L. Smith

St. Mary's Journal on Legal Malpractice & Ethics

This Article addresses a blind spot in the theorizing and debate over originalist interpretation: the implications of rules of legal ethics. For the few originalist theorists who take the practical side of originalism seriously, attorneys’ rules of professional conduct are almost entirely absent from the discussion. These rules bind all attorneys who, in turn, construct the record, present the evidence, and make the arguments upon which judges and Justices rely. And these rules have profound, though mixed, implications for originalist theory. Some ethical duties—such as those requiring attorney competence and candor to the tribunal—might enhance the quality of originalist analysis …

Parity In Practice: The Defender's Duty To Ethically Use Ai, Mason R. Clark

Faculty Articles

This white paper provides a framework for ethical and practical AI use across all types of criminal defense practice, grounded in the ABA Model Rules of Professional Conduct and best practices as described by practitioners, academics, and other experts. While AI tools can meaningfully improve efficiency and expand analytical capacity, those benefits are highly contingent on tool selection, implementation, and oversight. The white paper also recognizes that cost, access to training, and institutional resources remain significant barriers — particularly for solo practitioners, small firms, and under-resourced public defense offices — and discusses AI throughout as a set of tools whose …

Artificial Intelligence: An Impetus To Amend The Aba Model Code Of Judicial Conduct, Davis G. Yee

St. Mary's Journal on Legal Malpractice & Ethics

Notwithstanding the increasing prevalence of artificial intelligence or AI in the legal field, Chief Justice Roberts recently predicted that “human judges will be around for a while.” The reason is that at this time, AI cannot perform judicial mental functions as well as human judges can in deciding cases. Yet, instead of having AI replace human judges, some have explored whether AI can be used to assist human judges with their adjudicative and administrative responsibilities.

This Article focuses on a judge’s ethical obligations when encountering AI on both sides of the bench. That is, what do judicial ethics call for …

Mindful Lawyering: Incorporating Mindfulness Into The American Bar Association’S Model Rules Of Professional Conduct, Lyda Creus Molanphy

St. Mary's Journal on Legal Malpractice & Ethics

No abstract provided.

Don’T Byte Off More Than You Can Chew: Ethical Considerations For The Estate Planner In The World Of Generative Artificial Intelligence, Gerry W. Beyer

St. Mary's Journal on Legal Malpractice & Ethics

Artificial intelligence (AI) is rapidly being incorporated into estate planning practices. AI products can increase the speed by which you prepare, review, and summarize estate planning related documents, tax returns, and client communications. Likewise, the speed by which you can conduct legal and financial research is faster than ever. This presentation is designed to explain how AI operates, the potential use of AI in your practice, warnings about the use of AI, techniques you may adapt to enhance your AI competency, and how to address the ethical issues that arise when using AI.

When Can A Lawyer Lawfully Use Threats When Negotiating?, James M. Fischer

St. Mary's Journal on Legal Malpractice & Ethics

This Article focuses upon a basic negotiation device—a threat, used in a particular context—threats contained in settlement demand letters. In some, but not all, cases, however, the threat may be deemed a crime (extortion), in which case, the lawyer may be subject to sanction (criminal or civil liability, professional discipline) for making the threat. This consequence has, however, been largely ignored in academic literature. That is unfortunate, for it appears that many lawyers are unaware of the risks negotiation threats present because the risk is not well defined in the professional codes lawyers would normally look to for guidance.

This …

Sighting The Scope Of A Lawyer’S Representation, Douglas R. Richmond

St. Mary's Journal on Legal Malpractice & Ethics

Clients engage lawyers for many reasons. Regardless of the circumstances, however, the lawyer and the client need to agree on the scope of the lawyer’s representation, meaning the legal services the lawyer will perform for the client. The client must agree to and understand the scope of the lawyer’s representation as aspects of establishing her objectives for the matter and thereafter evaluating whether the lawyer is achieving those objectives. The client must also understand the scope of the representation to be able to decide whether the matter’s potential expense justifies its pursuit and to gauge the reasonableness of the lawyer’s …

Teaching Client Counseling In The Shadow Of Homelessness, Gregory Zlotnick

Faculty Articles

Working with clients at risk of or experiencing, homelessness teaches personal and professional humility like few other experiences in law school or the practice of law. Yet such sensitive work also provides an opportunity for law students to develop both a keener understanding of their own professional identity-with its capacities and limitations and critical counseling skills. This essay draws upon experiences gained in three distinct law school projects that work with clients at risk of or experiencing, homelessness.

After providing a brief overview of each project, the essay will explore methods used for training and supervising students during their counseling …

Addressing Witness Coaching By Cross-Examination, Gregory C. Sisk

St. Mary's Journal on Legal Malpractice & Ethics

In preparing a witness, may a lawyer script the testimony by taking the witness through repeated rehearsals to fabricate a narrative in the form directed by the lawyer and to use words that the lawyer suggests are more favorable for the represented party? Suppose the lawyer believes a suggestion to the witness regarding the specific substance or word choice of testimony does not introduce a falsehood but rather produces a more favorable spin on the witness narrative. May the lawyer justify that shaping of testimonial content as legitimate zealous representation of a client?

Given that any such suggestion by the …

Our Ai, Ourselves: Illuminating The Human Fears Animating Early Regulatory Responses To The Use Of Generative Ai In The Practice Of Law, Margaret Raymond

St. Mary's Journal on Legal Malpractice & Ethics

Generative artificial intelligence is changing the way lawyers work, and with those changes have come questions and concerns about how it should be regulated. Those questions and concerns, particularly on the individual level, are driven by fears about the implications of the use of generative AI. This Article identifies and explores the fears that drive these regulatory responses: fear of exposing judicial fallibility, anxiety over AI replacing human lawyers, and concerns about missing out on AI’s potential benefits. Ultimately, effective regulation of the use of generative AI in legal practice needs to be attentive to the fears and hopes surrounding …

Trading Places: An Education For Legal Employers: A View From The Perspective Of A New Generation Of Legal Talent, Michele N. Struffolino

St. Mary's Journal on Legal Malpractice & Ethics

Most lawyers remember the stress associated with walking into their first job interview. The goal being to get the interviewer to “pick me.” Today, legal employers need to be prepared to be more of the interviewee than the interviewer in the hiring process. Over the past few decades, much focus has been on identifying the skills essential to success in the legal profession—mainly those skills and traits legal employers view as important when hiring new associates. These findings led to changes in legal education in order to prepare law students for entering the employment market and successfully securing a position. …

Artificial Intelligence In Texas: Navigating The Risks, Benefits, And Uncharged Boundaries Of An Emerging Technology, Jordanna Tobias

St. Mary's Journal on Legal Malpractice & Ethics

No abstract provided.

Measuring The Rapidly Increasing Use Of Artificial Intelligence In Legal Scholarship, Michael Conklin, Christopher Houston

St. Mary's Journal on Legal Malpractice & Ethics

The rapid advancement of artificial intelligence (AI) has had a profound impact on nearly every industry, including legal academia. As AI-driven tools like ChatGPT become more prevalent, they raise critical questions about authorship, academic integrity, and the evolving nature of legal writing. While AI offers promising benefits—such as improved efficiency in research, drafting, and analysis—it also presents ethical dilemmas related to originality, bias, and the potential homogenization of legal discourse.

One of the challenges in assessing AI’s influence on legal scholarship is the difficulty of identifying AI-generated content. Traditional plagiarism-detection methods are often inadequate, as AI does not merely copy …

Abolish The Mpre, Michael Ariens

St. Mary's Journal on Legal Malpractice & Ethics

In nearly every jurisdiction, applicants to the bar must pass the Multistate Professional Responsibility Examination (MPRE). Its purpose, according to its owner, the National Conference of Bar Examiners (NCBE), is “to measure candidates’ knowledge and understanding of established standards related to the professional conduct of lawyers.” It does test whether an examinee has kept in short-term memory the rules and exceptions that make up part of the understanding of what it means to serve as a lawyer. However, success (or initial failure) on the MPRE has not been correlated with ethical conduct or misconduct. For example, the Texas Board of …

Legal Malpractice In Florida: A Statistical Profile, Robert M. Jarvis, Debra Moss Vollweiler

St. Mary's Journal on Legal Malpractice & Ethics

Little empirical research exists about the incidence of legal malpractice. To help fill the gap, the authors spent 1,000 hours mining the Florida Office of Insurance Regulation’s legal malpractice database, a rich but underutilized resource. As their results make clear, every lawyer—no matter their gender, education, location, experience, or type of practice—is at risk of being sued for legal malpractice.

Self-Discipline, Faith, And Civility: Promoting A Civil Society And Lawyer Professionalism, Honorable Douglas S. Lang

St. Mary's Journal on Legal Malpractice & Ethics

All lawyers are bound to assiduously adhere to the Law, including the strictures of legal ethics, professionalism, and all secular law. Moreover, lawyers of faith must adhere to the tenants of their faith as a way of life. The principles of those two sets of imperatives are not only compatible, they are inextricably intertwined. Together, they compel lawyers to treat others civilly and with respect and dignity. This paper demonstrates that lawyers, particularly Catholic lawyers, must unselfishly and civilly live their lives in a way to combat the scourge of incivility in the legal profession and in society. All …

Restoring The Public’S Faith: Character Education And The Supreme Court, Benjamin Rigney

St. Mary's Journal on Legal Malpractice & Ethics

The current news cycle is full of reports on the alleged ethical scandals rocking the Supreme Court. A significant result of these ethical failures is rapidly declining public trust in the Supreme Court as an institution, which in turn negatively impacts the public’s trust in the entire legal system. The role of judicial ethics is fundamental to the American legal system as illustrated in Charles Geyh’s article, The Architecture of Judicial Ethics, published in the University of Pennsylvania Law Review, and Amanda Frost’s article, Judicial Ethics and Supreme Court Exceptionalism, published in the Georgetown Journal of Legal …

The Impact The Monetary Value Of A Case Has On Effort And Productivity Within The Field Of Personal Injury, Maximiliano Elizondo

St. Mary's Journal on Legal Malpractice & Ethics

No abstract provided.

The Independence And Empowerment Of International Criminal Tribunals, Peter Koelling

St. Mary's Journal on Legal Malpractice & Ethics

No abstract provided.

Cyber Security: A Lawyer’S Ethical Duty, Meagan Folmar

St. Mary's Journal on Legal Malpractice & Ethics

No abstract provided.