Legal Ethics and Professional Responsibility Commons^™

Rewired: Reconceptualizing Legal Services For The Ai Age, Lev E. Breydo

Faculty Publications

The legal profession is at a crossroads, caught between intensifying fears of AI-driven displacement and a generational opportunity for transformation. This Article provides a practical framework for navigating the shifting terrain.

Situating legal innovation within a multi-century arc of technological change, the Article draws on management and strategy scholarship to develop two core organizing models: the Legal Services Value Chain and the Innovation Frontier. The value chain disaggregates the lifecycle of a legal matter into five distinct nodes of activity, providing a map for subsequent analyses

Building on that foundation, the Innovation Frontier traces LegalTech’s evolution from 2000s-vintage e-discovery to …

Judge Platt Potter: Politics And Principle In Interbranch Conflict, Aaron-Andrew P. Bruhl

Faculty Publications

During the previous Congress, some commentators called on the Senate Judiciary Committee, then controlled by Democrats and chaired by Senator Dick Durbin of Illinois, to demand the testimony of Supreme Court Justices Clarence Thomas and Samuel Alito over allegations of ethical breaches, securing their presence by subpoena if necessary. The Committee did not subpoena the Justices, with Durbin citing the likely lack of sufficient votes and worrying that the Senate would not be able to enforce the subpoenas anyway. During the same Congress, Durbin asked Chief Justice Roberts to testify about judicial ethics, an invitation that Roberts declined.

These incidents …

Learning By Doing: The Importance Of Thoughtful And Limited Generative A.I. Use In The Il Legal Writing Classroom, Luke Repici

Faculty Publications

Technological advances that impact lawyers day-to-day work are nothing new. From typewriters, dictaphones, and computers to electronic legal research, email, and e-discovery, new technologies have changed the nuts and bolts of how lawyers practice for decades. Previous technologies may have replaced the pen with the typewriter and supplanted the letter for the email, but the lawyer remained the one doing the work. For more junior lawyers, this meant assigned tasks – reading cases, drafting motions, dictating client updates, summarizing discovery, and creating deposition outlines – could not be outsourced to technology.

The emergence of generative artificial intelligence (“Gen AI”) presents …

A Threshold Assessment: Is Technology Among The Competencies Tested By The Mpre?, Amy A. Emerson

Faculty Publications

No abstract provided.

Learning To Disagree Agreeably, Allison Orr Larsen

Faculty Publications

But the most important lesson I learned from Judge Wilkinson—out of many important lessons—is the one brought home to me by witnessing his friendship with Judge Michael: the law works only when lawyers learn to “disagree agreeably.” This is a phrase the Judge taught me—and he always attributed to people from whom he learned it—but for me it encapsulates the Judge in every way. It is easy to talk about being collegial in the abstract, but Judge Wilkinson practices what he preaches.

In this brief Essay, on the occasion of celebrating a man who shaped my career and life in …

The Ethics Of Artificial Intelligence In Legal Advocacy, Elissa Germaine

Faculty Publications

(Excerpt)

The use of AI in our personal and professional lives has entered the public consciousness over the past several months. The legal profession and the securities industry are no exception. This article begins to explore the use of open source generative AI in legal advocacy, and the related ethical implications for securities arbitration practitioners.

Studies have corroborated the impact of AI on the legal profession that many of us have been seeing in practice or hearing and reading about. A Goldman Sachs study predicted that the legal profession will be one of the most likely areas to be impacted …

Tribute To Professor James Moliterno, Patricia Roberts, Soledad Atienza, Eleanor Myers, James S. Heller, Gary Tamsitt, Neal Devins, Peter Čuroš, Veronika Tomoszek, Maxim Tomoszek, Paul Žilinčík, Rongjie Lan, José M. De Areilza, Irina Lortkipanidze, Ján Mazúr, Javier Guillen, Lucia Berdisová, James Étienne Viator

Faculty Publications

No abstract provided.

Review Of Code Of Judicial Conduct: Ethical Campaigning (With A Special Emphasis On Inappropriate Political Activity And Canon 5), Thomas Simmons

Faculty Publications

No abstract provided.

Trusts From A To Z: Legal Ethics, Thomas Simmons

Faculty Publications

No abstract provided.

The Race To The Top To Reduce Prosecutorial Misconduct, Adam M. Gershowitz

Faculty Publications

This Essay offers an unconventional approach to deterring prosecutorial misconduct. Trial judges should use their inherent authority to forbid prosecutors from appearing and handling cases in their courtrooms until the prosecutors have completed training on Brady v. Maryland, Batson v. Kentucky, and other types of prosecutorial misconduct. If a single trial judge in a medium-sized or large jurisdiction imposes training prerequisites on prosecutors, it could set off a race to the top that encourages other judges to adopt similar (or perhaps even more rigorous) training requirements. A mandate that prosecutors receive ethics training before handling any cases is …

Playing By The Rule: How Aba Model Rule 8.4(G) Can Regulate Jury Exclusion, Anna Offit

Faculty Publications

Discrimination during voir dire remains a critical impediment to empaneling juries that reflect the diversity of the United States. While various solutions have been proposed, scholars have largely overlooked ethics rules as an instrument for preventing discriminatory behavior during jury selection. Focusing on American Bar Association Model Rule of Professional Conduct 8.4(g), which regulates professional misconduct, this Article argues that ethics rules may, under certain conditions, deter the exclusionary practices of legal actors. Part I examines the specific history, evolution, and application of revised Model Rule 8.4(g). Part II delves into the ways that ethics rules in general, despite their …

Fictional Pleas, Thea B. Johnson

Faculty Publications

A fictional plea is one in which the defendant pleads guilty to a crime he has not committed with the knowledge of the defense attorney, prosecutor and judge. With fictional pleas, the plea of conviction is totally detached from the original factual allegations against the defendant. As criminal justice actors become increasingly troubled by the impact of collateral consequences on defendants, the fictional plea serves as an appealing response to this concern. It allows the parties to achieve parallel aims: the prosecutor holds the defendant accountable in the criminal system, while the defendant avoids devastating non-criminal consequences. In this context, …

The Challenge Of Convincing Ethical Prosecutors That Their Profession Has A Brady Problem, Adam M. Gershowitz

Faculty Publications

In recent decades, both the media and legal scholars have documented the widespread problem of prosecutors failing to disclose favorable evidence to the defense – so called Brady violations. Despite all of this documentation however, many ethical prosecutors reject the notion that the criminal justice system has a Brady problem. These prosecutors – ethical lawyers who themselves have not been accused of misconduct – believe that the scope of the Brady problem is exaggerated. Why do ethical prosecutors downplay the evidence that some of their colleagues have committed serious errors?

This essay, in honor of Professor Bennett Gershman, points to …

Conflicts Of Interest And Law-Firm Structure, Cassandra Burke Robertson

Faculty Publications

Business and law are increasingly practiced on a transnational scale, and law firms are adopting new business structures in order to compete on this global playing field. Over the last decade, global law firms have merged into so-called “mega-brands” or “mega-firms”—that is, associations of national or regional law firms that join together under a single brand worldwide. For law firms, the most common mega-firm structure has been the Swiss verein, though the English “Company Limited by Guarantee” structure is growing in popularity as well, as is the similar “European Economic Interest Grouping.” All of these structures allow related entities to …

Technology In Legal Practice: Keeping Ethical Obligations In Mind, Teresa J. Verges, Christine Lazaro

Faculty Publications

(Excerpt)

The use of technology in the legal profession is ubiquitous, expanding, and ever changing. Lawyers connect with their clients, co-workers, and others through email. Cloud computing has allowed lawyers to create virtual and mobile workspaces, providing them with accessibility to client files and resources anywhere in the world. Social media allows lawyers to showcase their expertise and build their practice. Technology has undoubtedly impacted how lawyers provide legal services to their clients. However, as lawyers, we remain subject to long-standing professional and ethical obligations that govern our practice. This article explores how commonly used technology in legal practice implicates …

Hey, Big Spender: Ethical Guidelines For Dispute Resolution Professionals When Parties Are Backed By Third-Party Funders, Elayne E. Greenberg

Faculty Publications

This first-of-its-kind paper introduces ethical guidelines and suggested practices for dispute resolution providers and neutrals when third-party funders provide financial backing for parties in U.S. domestic arbitrations and mediations. Sophisticated third-party funders have realized that litigation and dispute resolution are fast-growing, unregulated investment opportunities. Seizing these opportunities, third-party funders are now making billions of dollars in profits through their strategic investments in domestic and global litigation and dispute resolution with few ethical rules or regulations to curtail their investment behavior.3 Preferring to be secretive about the terms of their funding contracts and invisible in their work, third- party funders are …

Prosecuting In The Shadow Of The Jury, Anna Offit

Faculty Publications

This Article offers an unprecedented empirical window into prosecutorial discretion, drawing on research between 2013 and 2017. The central finding is that jurors play a vital role in federal prosecutors' decision-making, professional identities, and formulations of justice. This is because even the remote possibility of lay scrutiny creates an opening for prosecutors to make commonsense assessments of (1) the evidence in their cases, (2) the character of witnesses, defendants, and victims, and (3) their own moral and professional character as public servants. By facilitating explicit consideration of the fairness of their cases from a public vantage point, I argue that …

Changing Times, Changing Relationships For The Bench And Civil Bar, Paula Hannaford-Agor

Faculty Publications

For the past century, the interests of the bench and bar in delivering justice to civil litigants were closely aligned. As civil litigants’ needs change, courts recognize they must lead the way on civil justice reforms both for their own sake and to encourage productive change in civil legal practice.

Wrongful Death Conflicts For Plaintiffs' Attorneys, Thomas Simmons

Faculty Publications

No abstract provided.

What Do I Do With The Porn On My Computer: How A Lawyer Should Counsel Clients About Physical Evidence, Rodney J. Uphoff, Peter A. Joy

Faculty Publications

For years, criminal defense lawyers and commentators have wrestled with thorny ethical and legal issues surrounding defense counsel's obligations with respect to handling items of physical evidence. Commentators have usually focused on the question of whether the lawyer should take possession of physical evidence of a crime as well as on counsel's obligations and options once the lawyer purposively or inadvertently comes into possession of such evidence. After discussing what the ethics rules and the law require concerning handling physical evidence, commentators have generally cautioned lawyers not to take possession of suspected contraband or possible evidence of a crime, except …

Partisan Judicial Speech And Recusal Procedure, Dmitry Bam

Faculty Publications

This article discusses Associate Professor Appleby’s thoughtful comment criticizing the Supreme Court’s self-recusal procedure in light of Justice Ginsberg’s critical remarks about then-Presidential Candidate Trump.

Incorporating Social Justice Into The Law School Curriculum With A Hybrid Doctrinal/Writing Course, Rosa Castello

Faculty Publications

Educating future lawyers is about more than just teaching them substantive law. We are preparing professionals who will go out into our world and shape and affect it in deep and impacting ways. They will make law, enforce law, determine policy, defend people, advocate, and influence lives and businesses. Therefore, any thorough law school education should teach social justice and encourage students to become more engaged in activism.

One way to incorporate social justice into the law school curriculum is to offer specific courses focused on social justice. However, administrators may be concerned about demand for such classes or ability …

Seen And Heard: A Defense Of Judicial Speech, Dmitry Bam

Faculty Publications

Judicial ethics largely prohibits judges from engaging in political activities, including endorsing or opposing candidates for public office. These restrictions on judicial politicking, intended to preserve both the reality and the appearance of judicial integrity, independence, and impartiality, have been in place for decades. Although the Code of Conduct for United States Judges does not apply to the Supreme Court, Supreme Court Justices have long followed the norm that they do not take sides, at least publicly, in partisan political elections. And while elected state judges have some leeway to engage in limited political activities associated with their own candidacy," …

Meeting The Challenges Of High-Volume Civil Dockets, Hannah E. M. Lieberman, Paula Hannaford-Agor

Faculty Publications

Consumer-debt-collection, landlord/tenant, small-claims, and contract cases involving relatively small amounts comprise almost 80 percent of civil caseloads. This essay examines the challenges associated with high-volume civil dockets and summarizes recommendations to address these challenges and strengthen the integrity of the civil justice system.

Dangerous Diagnoses, Risky Assumptions, And The Failed Experiment Of "Sexually Violent Predator" Commitment, Deirdre M. Smith

Faculty Publications

In its 1997 opinion, Kansas v. Hendricks, the U.S. Supreme Court upheld a law that reflected a new model of civil commitment. The targets of this new commitment law were dubbed “Sexually Violent Predators” (SVPs), and the Court upheld indefinite detention of these individuals on the assumption that there is a psychiatrically distinct class of individuals who, unlike typical recidivists, have a mental condition that impairs their ability to refrain from violent sexual behavior. And, more specifically, the Court assumed that the justice system could reliably identify the true “predators,” those for whom this unusual and extraordinary deprivation of liberty …

Systemic Barriers To Effective Assistance Of Counsel In Plea Bargaining, Rodney J. Uphoff, Peter A. Joy

Faculty Publications

In a trio of recent cases, Padilla v. Kentucky, Missouri v. Frye, and Lafler v. Cooper, the U.S. Supreme Court has focused its attention on defense counsel's pivotal role during the plea bargaining process . At the same time that the Court has signaled its willingness to consider ineffective assistance of counsel claims at the plea stage, prosecutors are increasingly requiring defendants to sign waivers that include waiving all constitutional and procedural errors, even unknown ineffective assistance of counsel claims such as those that proved successful in Padilla and Frye. Had Jose Padilla and Galin Frye been forced to sign …

Regulating Electronic Legal Support Across State And National Boundaries, Cassandra Burke Robertson

Faculty Publications

Technology and globalization are changing the practice of law and creating new challenges for lawyer regulation. Middle-class litigants who struggle to afford legal services — but are comfortable using online resources — are increasingly seeking and finding legal support online. State and national boundaries dissolve in the online marketplace, making it easy for attorneys to provide services to litigants in other jurisdictions. Differences in national economies make it cost effective for both clients and lawyers to engage in transnational practice, so that attorneys in India and other jurisdictions can offer legal support and advice to American litigants for as little …

Law School Marketing And Legal Ethics, Ben L. Trachtenberg

Faculty Publications

Law schools have misled prospective students for years about the value of legal education. In some cases, law school officials have engaged in outright deceit, knowingly spreading false information about their schools. More commonly, they have presented statistics — especially those concerning the employment outcomes of law graduates — in ways nearly guaranteed to confuse readers. These deceptions and sharp practices violate the norms of the legal profession, a profession that scrupulously regulates the advertising of legal services. The deceptions also violate ethical rules prohibiting lawyers from engaging in dishonesty, misrepresentation, and deceit. This article exposes how pitches aimed at …

Regulators, Mount Up, Ben L. Trachtenberg

Faculty Publications

Since I began circulating drafts of an article arguing that certain law school officials have exposed themselves to professional discipline by engaging in dishonest marketing tactics, responses have varied considerably. Everyone seems to agree, however, that law school officials should not lie in their pursuit of students. There also appears to be broad consensus that misleading (albeit not intentionally false) marketing—such as systematically skewed salary statistics—is an unfortunate phenomenon, although disagreement remains on just how serious a problem it is and what level of corrective effort is appropriate. In their recently-published response pieces, Kyle McEntee of Law School Transparency (“LST”) …

Setting Attorneys' Fees In Securities Class Actions: An Empirical Assessment, Lynn A. Baker, Michael A. Perino, Charles Silver

Faculty Publications

(Excerpt)

In 1995, Congress overrode President Bill Clinton's veto and enacted the Private Securities Litigation Reform Act ("PSLRA"), a key purpose of which was to put securities class actions under the control of institutional investors with large financial stakes in the outcome of the litigation. The theory behind this policy, set out in a famous article by Professors Elliot Weiss and John Beckerman, was simple: self-interest should encourage investors with large stakes to run class actions in ways that maximize recoveries for all investors. These investors should naturally want to hire good lawyers, incentivize them properly, monitor their actions, and …