Legal Ethics and Professional Responsibility Commons^™

Sec Disciplinary Proceedings Against Attorneys Under Rule 2 ( E ), Michigan Law Review

Michigan Law Review

This Note reassesses SEC authority to discipline attorneys under rule 2( e ). Part I explores the history of rule 2( e) proceedings against attorneys and the troublesome policy issues raised by the SEC's new approach to rule 2(e) enforcement. Part II examines the SEC's claim that general rulemaking provisions give it authority to discipline attorneys. The Note concludes that a proper construction of statutes and case law bars rule 2( e) proceedings against attorneys.

Prospective Waiver Of The Right To Disqualify Counsel For Conflicts Of Interest, Michigan Law Review

Michigan Law Review

Part I of the Note discusses canon 4, first explaining the presumptions and policies that underlie it, then arguing that courts should enforce prospective waivers of the presumption of shared confidences when conditioned on the law firm's effective screening of client confidences - keeping them from the attorneys within the firm who will take part in the adverse representation. Part II turns to canon 5, and argues that prospective waivers of the presumption of diluted loyalties should be enforced against clients moving to disqualify law firms for a canon 5 violation.

The Attorney-Client Privilege After Attorney Disclosure, Michigan Law Review

Michigan Law Review

This Note examines the interests that must be balanced in determining when an attorney's disclosure waives the attorney-client privilege. Part I presents three judicial standards defining the class of attorney disclosures that waive the privilege: the traditional client consent rule that only attorney disclosures to which the client has consented constitute waiver; the broader "implied authority" view that attorney disclosures made with the client's consent or with an intent to further the client's cause constitute waiver; and the still more expansive view that all attorney disclosures falling within the scope of the attorney's agency authority to act for the client …

Machiavelli And The Bar: Ethical Limitations On Lying In Negotiation, James J. White

Articles

Upon the enactment of the Model Rules of Professional Conduct, published ethical norms will for the first time give explicit consideration to the lawyer's behavior in the process of negotiation. Rules 4.1, 4.2, and 4.3 deal with negotiation. Although the Canons, the interpretations of the Canons, and the Disciplinary Rules and Ethical Considerations gave tangential consideration to negotiating, 1 none of the Disciplinary Rules or Ethical Considerations explicitly considered negotiation apart from the process of litigation or counseling. The mere recognition of negotiation as a separate process worthy of unique rules is a large step. The purpose of this paper …

The Pursuit Of A Client's Interest, Warren Lehman

Michigan Law Review

There has been recently a resurgence of interest in how the lawyer serves his client. Much of that interest has been occasioned by the indigestibility of the idea that the lawyer is, as it is said, a hired gun. There are those who think that instead the lawyer ought to act toward his client as a therapist. Others are concerned with rationalizing for the lawyer the ethical discomforts of servantship (which many might guess have been brought to the fore by Watergate). Yet others see the client as victim of a structure - represented by the lawyer - that frustrates …

Professionalism And The Chains Of Slavery, Redmond J. Barnett

Michigan Law Review

A Review of Justice Accused: Antislavery and the Judicial Process by Robert M. Cover and The Dred Scott Case: Its Significance in American Law and Politics by Don E. Fehrenbacher

The Corporate And Securities Adviser, The Public Interest, And Professional Ethics, Simon M. Lorne

Michigan Law Review

It is the thesis of this Article that we, as a society, need to make deliberate decisions about the proper role of the corporate adviser, and, when that function has been defined, to develop a structure within which it can be performed. As the Article makes clear, the logical choices involve what might be described as either revolutionary change or reactionary change. That is, the current trends should either be accelerated or reversed; the present situation is intolerable. While the author will contend that the case for shifting into reverse is more persuasive, getting into a gear, and out of …

The Solicitor General And Intragovernmental Conflict, Michigan Law Review

Michigan Law Review

This Note considers the way in which the Solicitor General has resolved-and should resolve-such ambiguities in his role as advocate for the United States. First, the Note examines the accommodation of interests represented by the Solicitor General's responses to discordant obligations. Second, it analyzes the common law and statutory sources of the Solicitor General's responsibilities. Finally, the proper role of the Solicitor General is assessed, giving due consideration to his position .as mediator among interest groups within the government and to the institutional constraints to which he is subject.

Professional Discipline Of Solicitors In England, Michigan Law Review

Michigan Law Review

This Note begins with an examination of the disciplinary role of the Law Society, the solicitors' most important organization, and of the Society's attempt to prevent professional misconduct through regular financial audits and by providing advice to solicitors on questions of professional conduct and etiquette. It then describes the composition, function, and operation of the Disciplinary Tribunal, the statutorily created organization occupying the second level of the disciplinary system. Particular attention is directed toward recent statutory changes that provide for lay representation on the Tribunal. The Note concludes with a brief discussion of the appeals process and the procedures for …

The Prosecutor's Duty To Present Exculpatory Evidence To An Indicting Grand Jury, Michigan Law Review

Michigan Law Review

This Note explores the implications of the stark procedural disparities between prosecution by information and prosecution by indictment in those states where both methods are used. It first examines the consequences to a defendant of a prosecutor's decision to seek an indictment rather than proceed by information, the reasons underlying the discretion given the prosecutor to choose between the two methods, and the potential for abuse of this discretionary power. It then considers several alternative approaches for minimizing this potential for abuse. After rejecting possible constitutional objections to the disparity between indictment and information procedures and application of the common-law …

Attorney Misappropriation Of Clients' Funds: A Study In Professional Responsibility, Gregory Dunbar Soule

University of Michigan Journal of Law Reform

The legal profession has initiated disciplinary processes and clients' security funds in order to achieve certain objectives. This article will delineate these objectives and evaluate whether they have been satisfied. Moreover, it will propose additional goals that the legal profession, given its present status as a self-regulating profession, should attain in satisfying its responsibility for governing the professional conduct of its members. Finally, additional measures that several states have instituted in order to complement the efforts of disciplinary agencies and clients' security funds by fulfilling unsatisfied needs of professional responsibility will be examined.

The Other Government, Daniel D. Polsby

Michigan Law Review

A Review of The Other Government by Mark J. Green

The Virtuous Prosecutor In Quest Of An Ethical Standard: Guidance From The Aba, H. Richard Uviller

Michigan Law Review

Among his other endeavors, the public prosecutor strives to maintain an upright stance in the stained halls of criminal justice. He correctly senses that the people demand more of him than diligent, workmanlike performance of his public chores. Virtue is the cherished ingredient in his role: the honorable exercise of the considerable discretionary power with which our legal system has endowed his office. Daily, the ethical fibre of the prosecutor is tested -and through him, in large measure, the rectitude of the system of justice.

Here, I shall discuss only three of the many ethical problems along the prosecutor's way: …

The Code Of Professional Responsibility In The Corporate World: An Abdication Of Professional Self-Regulation, Carl A. Pierce

University of Michigan Journal of Law Reform

The American Bar Association's Code of Professional Responsibility (Code or CPR) provides the foundation for the regulation of the legal profession by the members of the profession themselves. Although the drafters of the CPR have described it as a body of fundamental ethical principles applicable to all lawyers regardless of the nature of their professional activities, this article examines the vitality of the CPR and professional self-regulation in one particular area of lawyers' activities: corporate practice? The article suggests that the legal profession has abdicated its self-regulatory role, discusses the consequences of this abdication, and advances some alternatives to remedy …

Disqualifications For Interest Of Lower Federal Court Judges: 28 U.S.C. § 455, Michigan Law Review

Michigan Law Review

Disqualification of a judge occurs when he is ineligible by law to sit in a particular case. At the Supreme Court level, disqualification is a personal decision of the individual justice, who seldom records the reasons for his decision. Thus, there is little material on the Court's disqualification practices that can be subjected to legal analysis. However, substantial case law on disqualification has developed in the lower federal courts, where the decision of a trial judge to sit or step down in a case may appear in the trial record and is subject to review by a court of appeals. …

Attorneys' Conflicts Of Interest In The Investment Company Industry, Farrell C. Glasser

University of Michigan Journal of Law Reform

This article explores the problem of conflicts of interest resulting from the retention of the same attorneys by investment companies and their affiliates. After an analysis of the problem, it suggests appropriate remedial measures that could be instituted to prevent these conflicts from occurring in the investment company industry.

Unauthorized Practice Of Law-Union Program Of Hiring Attorneys Is Unauthorized Practice Of Law--Illinois State Bar Ass'n V. United Mine Workers Of America, Michigan Law Review

Michigan Law Review

District 12 of the United Mine Workers (UMW) employed an attorney on a salary basis to prosecute members' claims under the Workmen's Compensation Act. Members were free to employ other counsel, but if they sought help from the union lawyer, the union agreed not to interfere with the attorney-client relationship. The attorney prepared his case from filed reports of the accidents, and, generally, his first contact with the union member was when they appeared before the Commission. Since the attorney was compensated by the union, the entire amount received in award or settlement went to the member. The Illinois Bar …

Attorney-Client-Client's Right To Engage Out-Of-State Attorney For Advice Concerning Federal Claim Is A Privilege And Immunity Of National Citizenship--Spanos V. Skouras Theatre Corp., Michigan Law Review

Michigan Law Review

The state and federal courts, existing side by side within the boundaries of each state, separately control admission to practice law before their respective bars. Although membership in a state bar is generally a prerequisite for admission to the bar of a federal court, the two systems do function under separate and distinct ground rules, and they appear to have done so with a minimum of friction. However, the principal case is indicative of the problems that may arise when state policy on the right to practice law within the state conflicts with federal policy.

Labor Law-Two Views Of A Labor Relations Consultant's Duty To Report Under Section 203 Of The Lmrda, Michigan Law Review

Michigan Law Review

Title II of the Labor-Management Reporting and Disclosure Act (LMRDA) requires unions, union officials, union employees, employers and "labor relations consultants" to file various reports with the Secretary of Labor. The purpose of these provisions is to discourage corrupt, though not necessarily illegal, labor management activities by disclosing them for public scrutiny. Section 203(b) of the Act, which is aimed at the "labor relations consultant," states that "every person" who agrees with an employer to "directly or indirectly" (1) "persuade employees" regarding their right to organize and bargain collectively or (2) inform the employer of certain union-employee activities must file …

Attorneys--Self-Incrimination--The Attorney's Privilege Against Self-Incrimination In A Disbarment Proceeding, Michigan Law Review

Michigan Law Review

A state court has jurisdiction to deal with the alleged misconduct of attorneys practicing before it either explicitly by statute or by ' virtue of its power to control the conduct of its own affairs. Indeed, it can suspend or disbar an attorney who fails to maintain the standard of conduct established for members of the legal profession. One aspect of such a standard is that an attorney is bound not to obstruct the administration of justice, a duty which imposes upon him an affirmative obligation to cooperate with the courts. The question frequently arises whether, in order to satisfy …

Professional Ethics In Criminal Trials: A View Of Defense Counsel's Responsibility, David G. Bress

Michigan Law Review

More than thirty years ago, in Berger v. United States, Mr. Justice Sutherland described the heavy and multiple responsibility assumed by a prosecutor. The United States Attorney, he asserted, not only must be an advocate for the prosecution, but also must ensure that justice prevails. The Justice stated: "It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one."

Professional Responsibility Of The Criminal Defense Lawyer: The Three Hardest Questions, Monroe H. Freedman

Michigan Law Review

In almost any area of legal counseling and advocacy, the lawyer may be faced with the dilemma of either betraying the confidential communications of his client or participating to some extent in the purposeful deception of the court. This problem is nowhere more acute than in the practice of criminal law, particularly in the representation of the indigent accused.

The Purposes Of Advocacy And The Limits Of Confidentiality, John T. Noonan Jr.

Michigan Law Review

The privilege of confidentiality between lawyer and client is a significant barrier to the search for truth and the attainment of justice. Since bankers, accountants, psychiatrists, and confessors are not entitled at common law to confidentiality in their relationships with those with whom they deal, one may well inquire why lawyers possess such an extraordinary privilege. In the early English case which established the lawyer-client privilege, counsel offered several justifications: (I) A "gentleman of character" does not disclose his client's secrets. (2) An attorney identifies himself with his client, and it would be "contrary to the rules of natural justice …

Scientific Eclat And Technological Change: Some Implications For Legal Education, George T. Frampton

Michigan Law Review

The law-trained man has frequently been viewed as faced toward the past and preoccupied with precedent, form, words, technicalities, and money. Well might such a man be the fitting product of an educational diet of moldering appellate case opinions taken Socratically with a few crusts of casebook "notes" and classroom lapses into lecture. This is not a man for the season of scientific successes or for a society transformed by technological change.

Investigation Of Unauthorized Practice Of Law By Omnibus Proceeding: The Ohio Method, Jerome M. Smith

Michigan Law Review

The practice of law is impressed with a public interest. Whether by representation in a judicial proceeding or by advice on a legal problem, the lawyer renders professional service to the public. Preserving client confidences, assuring unquestioned loyalty, and rendering expert counsel are typical obligations of the legal profession. Another responsibility of lawyers is that of protecting the public from legal practice by unqualified laymen. Three areas of activity are involved in preventing unauthorized practice of law. Lawyers and public officials must define the practice of law/ investigate and prosecute unlicensed practitioners, and by judicial remedy prohibit further unauthorized practice. …

Canon Of Professional Ethics-Cooperation In Preparation Of News Articles As Advertising In Violation Of Canon 27, Joseph F. Mcdonald

Michigan Law Review

Two recent decisions were the first to construe the prohibition against indirect advertising embodied in Canon 27 of the Canons of Professional Ethics. Although the facts and issues involved were substantially alike, the holdings were divergent.

At the request of a local Miami newspaper, respondent submitted to an interview which formed the basis of a full page article in the "Sunday Supplement." The article see forth a complimentary biography of respondent and described the internal workings of his firm. Respondent was found guilty of violating Canon 27 by the Grievance Committee of the Florida State Bar Association. The recommendation was …

Current Problems In Securities Regulation, Robert N. Dorosin, Ira J. Jaffe, Rolfe A. Worden, James C. Lockwood, Willoughby C. Johnson

Michigan Law Review

This comment analyzes four areas of central significance to adequate protection for the investor: (1) qualifications of those in the securities industry who deal with the public; (2) dissemination of corporate publicity; (3) dissemination of investment advice; and (4) selling practices in the securities industry. The findings and recommendations of the Special Study are given special attention insofar as they bear upon the problems covered. In certain areas, however, recent developments in court and Commission decisions have brought about changes equally as significant as the findings and recommendations of the Special Study. Thus each section covers the background and recent …

Federal Civil Procedure-Discovery-Availability Of Attorney-Client Privilege To Corporations, Stephen M. Wittenberg

Michigan Law Review

During the pre-trial stage of a civil antitrust suit, plaintiff sought inspection of certain documents in the files of the corporate defendants' outside counsel. The defendant contended that these documents were protected from discovery by the attorney-client privilege. Upon motion for inspection, held, granted. The attorney-client privilege is not available to any of the corporate parties in this action. Radiant Burners, Inc. v. American Gas Ass'n, 207 F. Supp. 771, aff'd on rehearing, 209 F. Supp. 321 (N.D. Ill. 1962).

Attorney And Client- Attorney's Rights Under Contract Of Partial Assignment-Effet Of Premature Termination Or Settlement Of Action, Charles Frederickson S.Ed

Michigan Law Review

In an action for personal injuries, defendant caused a subpoena to be served upon plaintiff requiring him to appear to give his deposition. Plaintiff wholly failed to appear, and no cause was shown for such failure. Defendant then filed a motion for dismissal of the suit pursuant to subsection (c), 215a, of the Texas Rules of Civil Procedure, and notice thereof was served upon plaintiff. Although plaintiff again made no appearance, his attorneys moved to intervene, asserting the contingent interest in the cause of action acquired by their contract with plaintiff. The trial court denied the motion for intervention and …

Evidence--Attorney-Client Privilege -- Identiy Of Client Held Privileged, Michael M. Hughes

Michigan Law Review

Petitioner attorney was retained by an organization of fruit merchants to investigate parking conditions on the New York piers which prevented its members from attending the daily fruit auctions, and to take steps to remedy this situation. During his investigations petitioner learned from one of his employers that two local politicians were being paid to allow certain large trailer trucks to continue parking illegally on the piers. The attorney reported this information to city officials. He was subsequently subpoenaed to testify on the matter before respondent, New York City Commissioner of Investigation, who was conducting an inquiry into waterfront conditions. …