Legal Ethics and Professional Responsibility Commons^™

Toward Ethical Plea Bargaining, Erica J. Hashimoto

Scholarly Works

Defendants in criminal cases are overwhelmingly more likely to plead guilty than to go to trial. Presumably, at least a part of the reason that most of them do so is that it is in their interest to plead guilty, i.e., they will receive a more favorable outcome if they plead guilty than if they go to trial. The extent to which pleas reflect fair or rational compromises in practice, however, depends upon a variety of factors, including the amount of information each of the parties has about the case. Some level of informational symmetry therefore is critical to the …

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 …

Judicial Decisionmaking, Paul V. Niemeyer

Georgia Law Review

Judge Niemeyer observes that judicial decisionmaking is a layered mental process in which numerous legitimate factors contribute to an arrangement of priorities. The priority of factors, which is based on the psychical makeup of each judge, determines the popular characterization of judges as liberal, conservative, pragmatic, thoughtful, or balanced. Nonetheless, decision making is not unconstrained,as it is guided by the good faith of each judge to continue the rule of law with well-reasoned and just opinions. If accomplished, legal disputes are accordingly healed, ultimately producing the desired harmony in the community.

The Burden Of Knowledge, Christian Turner

Georgia Law Review

Sometimes we are better off not knowing things. While we often hear that "ignorance is bliss," there has not been a comprehensive consideration in the legal academy of the virtues of ignorance and its regulation. Though the distribution of knowledge, like the distribution of other goods, is affected both directly and indirectly by law, several characteristics of knowledge distinguish it from other kinds of property. Much has been written about the impact of the nonrival and nonexclusive nature of knowledge on its production and distribution. This Article centers around two other attributes of knowledge that combine to create a special …

"Lawyers" Not "Liars": A Modified Traditionalist Approach To Teaching Legal Ethics, Lonnie T. Brown

Scholarly Works

As attorneys, we undeniably should be faithful confidantes to, and staunch allies for, our clients, but we must also never lose sight of the fact that we are not simply client representatives; we are concurrently officers of the court and keepers of the public trust. Though I strive diligently to make my students aware of the specific ethical duties owed to clients, I always stress even more intently the importance of these latter two components of their professional obligation. They are what set the practice of law apart from other occupations, and they are what should serve to inspire us …

The Word And The Law, James B. White

Georgia Law Review

The Word and the Law is an extraordinary combination of law, personal statement, literary criticism, and theology. In a sense its central question is whether it is possible to have a life in the law that is good, and the answer is yes-yes, though not at all easy. I have often suggested it as reading to students who are worried about the profession they have chosen, and they frequently return to me with deep thanks for the introduction. Milner's commitment throughout is not to abstraction or theory or generalization, but to particular realities. Partly for this reason he begins the …

The Gift Of Milner Ball, Thomas L. Shaffer

Georgia Law Review

My friend and teacher Milner Ball speaks of the law as "systemic injustice." I find that a bit harsh and tend instead toward a way of looking at injustice that comes from the equally melancholy reflections of Robert E. Rodes, Jr., also my friend-my colleague, too-and also my teacher (in two senses, including the I-once-paid- tuition sense). Bob Rodes has noticed injustice as much as Milner has, but Bob, who tends to be an Erastian, would say it is not the law that is the source of injustice; it is not even the "system"; it is lawyers who are the …

Representing Saddam Hussein: The Importance Of Being Ramsey Clark, Lonnie T. Brown, Jr.

Georgia Law Review

This Article examines the professional life of former U.S. Attorney General Ramsey Clark in an effort to understand the many controversial representations and causes that he has undertaken during his post-government career. Professor Brown does so through the vehicle of perhaps Ramsey Clark's most perplexing client choice-deposed Iraqi President Saddam Hussein. Although Hussein had other competent attorneys prepared and willing to represent him, Ramsey Clark nevertheless felt compelled to volunteer his services to the defense team. Why would he do so, and was his decision an ethically proper one under the circumstances? These are the specific questions that this Article …

Reconsidering The Corporate Attorney-Client Privilege: A Response To The Compelled-Voluntary Waiver Paradox, Lonnie T. Brown, Jr.

Scholarly Works

The Department of Justice (“DOJ”) has adopted guidelines that seem to make waiver of the attorney-client privilege and work product protection a prerequisite for being deemed “cooperative,” a significant designation that carries with it the prospect for more favorable penal treatment. In addition, the United States Sentencing Commission underscored the potential importance of such waivers by approving an amendment to the Federal Sentencing Guidelines in 2004 that, under certain circumstances, makes privilege waiver a factor in assessing a corporation's “culpability score,” which is used in determining the appropriate sentencing range.

This perceived ever-present concern has caused many corporate executives and …

A Tragedy Of The Common: The Common Interest Rule, Its Common Misuses, And An Uncommon Solution, Nicole Garsombke

Georgia Law Review

Almost every state allows some form of the common interest rule, which protects communications and documents exchanged between attorney, client, and certain third parties from waiver of the attorney-client privilege. This Note is a critique of two important exceptions to privilege waiver, the common interest and coclient rules, and discusses the rationales and justifications for the exceptions, scenarios to which the exceptions apply, and other confusing elements of courts' applications and interpretations.An examination of the common interest and coclient rules in Georgia is provided to give a particular case study of the development and use of these two exceptions. Finally, …

Laying Down The Law: Bringing Down The Legal Cartel In Real Estate Settlement Services And Beyond, Margaret O. Rentz

Georgia Law Review

America is in the midst of an explosion in the demand for legal services, yet few Americans can afford to pay the ever-increasing cost of legal fees and are thus continually deprived of access to the legal system. Non lawyers have responded to this problem by entering the market and attempting to provide basic legal services at deeply discounted rates. Under the guise of "consumer protection," the bar has responded by blocking non lawyers from 'practicing law" with unauthorized practice statutes. A debate has emerged over whether UPL statutes actually serve American consumers or merely guard the legal cartel's economic …

"May It Please The Camera,...I Mean The Court"--An Intrajudicial Solution To An Extrajudicial Problem, Lonnie T. Brown

Scholarly Works

This Article explores the depths of the ethical issues presented when lawyers zealously advocate on behalf of their clients to the media, as well as the negative public policy ramifications that such behavior generates. The latter effect most seriously signals the need for reform in this area. Part II of the Article provides insight into the principal source of the problem--the ineffectiveness of the existing regulatory devices. This section traces the evolution of the ethical rules that pertain to public commentary by lawyers from the early days of steadfast condemnation to the modern appraoch of cautious equivocation. It also considers …

Popular Culture As A Lens On Legal Professionalism, Alex Scherr, Hillary Farber

Scholarly Works

Why use art to teach lawyering?' Despite divergences in method and intention, the two disciplines overlap. If the prevalence of lawyers in movies, television, literature, and even humor means anything, popular culture remains fascinated with lawyers. Our practices, our ethics, and our professional personae serve as a mine for image and narrative, a target for cultural critique, and a catalyst for expression. Not surprisingly, images of lawyers in cartoons, film, television, and literature offer unique opportunities to teach and explore professionalism. The proliferation of lawyer images in popular culture provides an array of material ranging from career choice to particular …

Legislating Morality: The Duty To The Tax System Reconsidered, Watson

Scholarly Works

Four years ago, I presented a paper at a symposium on professionalism jointly sponsored by the University of Kansas Law School and the Kansas Bar Association. That paper espoused the view (contrary to what appears to be the popular view among tax scholars) that tax lawyers owe no special duty to the "tax system" other than to abide by the law and the applicable standards of professional conduct. During the four-year interim since my last visit to Kansas, however, we have witnessed the deleterious effect of the IRS Restructuring and Reform Act of 1998 (RRA '98) on IRS enforcement and …

Racial Discrimination In Jury Selection: Professional Misconduct, Not Legitimate Advocacy, Lonnie T. Brown, Jr.

Scholarly Works

This Article examines the paradox between the adversary and disciplinary systems' outward condemnation of discrimination in jury selection and their apparent simultaneous inward acceptance of such conduct as legitimate advocacy.

Foreword: Symposium--Ethics 2000 And Beyond: Reform Or Professional Responsibility As Usual, Lonnie T. Brown, Jr.

Scholarly Works

The topic of this Symposium -- Ethics 2000 and Beyond: Reform or Professional Responsibility as Usual? -- is one that likely does not immediately resonate with many other than professional responsibility teachers and scholars. It is, however, a subject of critical importance to all existing and future members of the legal profession. This was true at the time that the Symposium was conducted in the spring of 2002, and it is even truer today in light of ever-growing concerns with regard to the ethical duties of lawyers, particularly those who represent corporate clients believed or known to be involved in …

Lawyers' Value In Mergers And Acquisitions Under The New World Of Multidisciplinary Practices, Yunling Wu

LLM Theses and Essays

Lawyers are facing strong competition from accounting firms in mergers and acquisitions. Finance and accounting globalization and multidisciplinary practice makes accounting firms more competent, challenging lawyers’ value. However, lawyers create enormous value in mergers and acquisitions, such as structuring the form of transactions, managing due diligence investigation, reducing the costs of acquiring and verifying information, ensuring corporations follow the relevant regulations preventing legal liabilities, and preventing antitrust issues or invoking antitrust challenge. Teamwork will facilitate mergers and acquisitions transactions. Restricted multidisciplinary practice will not affect lawyers’ and accountants’ ethics and independence. Legal education should be improved to help lawyers become …

Learning To Be A Lawyer: Transition Into Practice Pilot Project, Sally Evans Winkler, C. Ronald Ellington, John T. Marshall

Popular Media

"A law student, upon graduation, is not a finished product," a respected law school dean observed. A practicing lawyer might add: "A lawyer, upon passage of the Bar examination, is not a finished product." To determine ways new lawyers can be helped in moving up the steep learning curve that separates law students from competent professionals, the State Bar of Georgia, through its Committee on the Standards of the Profession, is conducting a Transition into Practice Pilot Project.

Lawyers' Ethical Dilemmas: A "Normal" Relationship When Representing Demented Clients And Their Families, Robert B. Fleming, Rebecca C. Morgan

Georgia Law Review

The Anglo-American legal system, based as it is on an adversary system of justice, assumes that two or more legal combatants, capably arguing their respective positions, can best ensure that the correct answer will become apparent to a neutral decisionmaker, the judge. The system assumes competent parties with adept legal representation, presenting their respective sides of the case with little involvement by the judge. This ideal can be difficult, even impossible, to reach when one party is demented.' Indeed, in such a case the problem with this traditional legal model is even deeper-there may be no clear adversarial distinction between …

Freedom Fading: On Dementia, Best Interests, And Public Safety, Bruce Jennings

Georgia Law Review

Having Alzheimer's Disease does not make a person evil, but it does sometimes cause behavior that poses a danger to the person with dementia or to others. On what grounds can we justify overriding and restricting the liberty of a person with dementia? How far should such restrictions go? Who should authorize them and who should carry them out, and under what theory? Given that all behavior carries some degree of risk, what level of risk is acceptable? What should society tolerate as a part of the back- ground conditions within which most people conduct their lives? To what level …

Ethics, Ethnicity, And Dementia: A "Culture-Fair" Approach To Bioethical Advocacy In Dementing Illness, Ramon Valle

Georgia Law Review

The aims of this discussion are to twofold. The first is to apply what Post et al. term a cultural lens to bioethical decisionmaking processes in dementing illness.' The second is to assist the ethical advocate to develop a cultural analysis strategy for application of ethical decisionmaking processes within ethnically diverse populations. An assumption made here is that, as human inventions, ethical systems are an extension of culture, taking their imprint from the ethnocultural systems from which they emerge.' It is true that ethical systems and their principles can be widely shared across cultures. Modern bioethics, as promulgated within the …

Foreword: Joint Conference On Legal/Ethical Issues In The Progression Of Dementia, Edward D. Spurgeon

Scholarly Works

The Joint Conference on Legal/Ethical Issues in the Progression of Dementia grew out of the pressing need to address the very real legal and ethical dilemmas that arise in situations like the one of Marie McDonough Larson and her family. Five groups joined forces to sponsor the Conference: the Borchard Foundation Center on Law and Aging; the Alzheimer's Association; the American Bar Association's Commission on Legal Problems of the Elderly; the National Academy of Elder Law Attorneys; and the University of Georgia School of Law. Held at the Center for Continuing Education at the University of Georgia, the Conference spanned …

Dementia Research: Ethics And Policy For The Twenty-First Century, Rebecca Dresser

Georgia Law Review

People in developed countries rank dementia among the most feared threats to human health and life. With an increasing portion of the U.S. population living into the seventh, eighth, and ninth decades, the incidence of dementia is on the rise. So is the incidence of dementia research. In an effort to lighten the burdens on future patients and caregivers, government agencies, pharmaceutical companies, and philanthropic organizations are devoting abundant resources to the study of dementia. Like most human endeavors, dementia research can yield both benefits and harms. On the positive side, research holds out the possibility of better medications and …

Thinking About Life-Sustaining Treatment Late In The Life Of A Demented Person, Thomas Finucane

Georgia Law Review

This paper will consider a specific clinical situation: an elderly patient with dementia who becomes seriously ill, where treatment would likely be burdensome but might prolong life. Generic questions are described and the lawyerly Standard Paradigm is developed. Questions are raised about every step of the Standard Paradigm. Finally, there is a discussion of two treatment decisions that are commonly faced late in the course of advanced dementia: tube feeding and attempted cardiopulmonary resuscitation.

Ending Illegitimate Advocacy: Reinvigorating Rule 11 Through Enhancement Of The Ethical Duty To Report, Lonnie T. Brown, Jr.

Scholarly Works

This article seeks to draw attention to certain ethical misconduct of litigators that is routinely accepted, tolerated, or ignored by the legal profession. Though there are other examples, the author focuses on conduct prohibited by Federal Rule of Civil Procedure 11. In particular, the author concentrates on that rule's so-called “safe harbor” provision, which he argues serves to insulate, and possibly encourage, illegitimate advocacy in the form of the assertion and maintenance of frivolous claims, defenses, or other contentions ironically, the very conduct that the rule was ostensibly intended to deter. Regardless of the frequency of this sort of misbehavior, …

Creating And Supporting The Proxy-Decider: The Lawyer-Proxy Relationship, Nancy N. Dubler

Georgia Law Review

Advance directives have been identified as the "quick fix" of bioethics. The logic goes something like this: If we could only get patients to tell us, in advance of disability, the specifics of the health care they would want to receive in the future, we could put our ethical and legal qualms aside and march ahead with care that we know is patient appropriate and legally protected. If we could only get the patient to commit, we could proceed with moral certainty and risk assurance. If we could only be given explicit instructions, we could act accordingly and be comfortable …

Predictive Genetic Testing For Alzheimer's Disease In Long-Term Care Insurance, Mark A. Rothstein

Georgia Law Review

The promise of new genetic research is the ability to prevent, treat, and cure a wide range of physical and mental disorders-both monogenic and complex disorders. While astonishing progress has been made in gene discovery and the development of genetic tests, progress has been much slower in developing medicalinterventions. Consequently, there is likely to be a gap of varying and indetermi- nate time-lasting years or decades-between the ability to identify and predict genetic risk and the ability to prevent, treat, or cure the condition. The gap between the ability to predict genetic risk and the ability to ameliorate the risk …

Tax Lawyers, Ethical Obligations, And The Duty To The System, Watson

Scholarly Works

Perhaps the most elusive area of law is that of legal ethics. While the term itself is easy to define,' the subject all but defies codification because ethics, or morals (the terms are interchangeable), cannot be encapsulated by or in law. This is because law, in general, contains its own standard of validity on which there is usually clear societal consensus. For example, murder, rape, and theft are morally repugnant universally. Hence, punishment for any of these offenses does not impinge upon religious or individual autonomy because there is no ethical freedom to choose whether or not to engage in …

Ethical Considerations In Medicaid Estate Planning: An Analysis Of The Aba Model Rules Of Professional Conduct, Eleanor Crosby Lanier, Ira M. Leff

Scholarly Works

The purpose of this article is to provide a starting point for discussion of ethical issues related to the practice of Medicaid estate planning. The authors explore the history of attorney involvement in planning and financing long-term care. They also analyze how the ABA Model Rules of Professional Conduct address the ethical dilemmas that arise in practice, using a case study to illustrate some of these issues. The individual authors' perspectives on this practice differ with respect to certain issues. One is a former Legal Services lawyer, and the other has a private practice which focuses on Medicaid estate planning.

The Warranty Of Quality In Sale Of Goods Under The Perspective Of The American And French Law, Renaud Baguenault De Puchesse

LLM Theses and Essays

While the United States’ common law system is characterized by diversity due to each state having its own set of rules, in certain areas there are nationwide legislative attempts of unification and standardization. One such attempt is the adoption of the Uniform Commercial Code which governs the sale of goods law in the United States. The French civil law system generally differs greatly from the American system in that it is primarily based upon statutes and codes. However, the American Uniform Commercial Code and the French Civil Code provide tangible, comparable bases to assess similarities and differences between American and …