Legal Ethics and Professional Responsibility Commons^™

Life At The Center Reflections On My Career, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

The Ethical Dimensions Of National Security Law, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Knowing Law’S Limits: Comments On ‘Forgiveness: Integral To Close Relationships And Inimical To Justice?’, Kathryn Webb Bradley

Faculty Scholarship

No abstract provided.

Lawyers Without Borders, Catherine A. Rogers

Faculty Scholarship

Professional regulation of attorneys is still attempting to catch up with the burgeoning international legal profession, which until recently has been wholly unregulated. The primary effort has been through revisions to Model Rule 8.5 to extend the reach of the Rule to international cases and professional activities in foreign countries. Because Rule 8.5 was drafted for domestic multi-jurisdiction practice, however, it is based on assumptions about territoriality and the historical relationship between the jurisdiction of tribunals and the licensing of attorneys that are simply inapposite in international settings. As a result, applying Rule 8.5 to international tribunals and international advocacy …

Pitfalls Ahead: A Manifesto For The Training Of Lawyers, Anita Bernstein

Faculty Scholarship

No abstract provided.

Lawyers Without Borders, Catherine A. Rogers

Faculty Scholarship

Professional regulation of attorneys is still attempting to catch up with the burgeoning international legal profession, which until recently has been wholly unregulated. The primary effort has been through revisions to Model Rule 8.5 to extend the reach of the Rule to international cases and professional activities in foreign countries. Because Rule 8.5 was drafted for domestic multi-jurisdiction practice, however, it is based on assumptions about territoriality and the historical relationship between the jurisdiction of tribunals and the licensing of attorneys that are simply inapposite in international settings. As a result, applying Rule 8.5 to international tribunals and international advocacy …

The Phases And Faces Of The Duke Lacrosse Controversy: A Conversation James E. Coleman, Jr., James E. Coleman Jr., Angela Davis, Michael Gerhardt, K.C. Johnson, Lyrissa Lidsky, Howard M. Wasserman

Faculty Scholarship

This panel took place at the 2008 Annual Meeting of the Southeastern Association of Law Schools ("SEALS") in July 2008 in West Palm Beach, Florida

A Witness To Justice, Jessica Silbey

Faculty Scholarship

In the 1988 film The Accused, a young woman named Sarah Tobias is gang raped on a pinball machine by three men while a crowded bar watches. The rapists cut a deal with the prosecutor. Sarah's outrage at the deal convinces the assistant district attorney to prosecute members of the crowd that cheered on and encouraged the rape. This film shows how Sarah Tobias, a woman with little means and less experience, intuits that according to the law rape victims are incredible witnesses to their own victimization. The film goes on to critique what the right kind of witness would …

Teaching Business Lawyering In Law Schools: A Candid Assessment Of The Challenges And Some Suggestions For Moving Ahead, Eric J. Gouvin

Faculty Scholarship

As a result of several recent studies and changes in the ABA's Standards for Approval of Law Schools, legal education is paying more attention to skills training for law students. The need to bring the skills and values of business lawyers into the classroom has never been greater, yet there remains a real risk that "skills training" may be skewed in favor of litgation skills, with little emphasis given to transactional practice. This Article assesses some of the obstacles that stand in the way of effective integration of transactional skills into the law school curriculum and offers some concrete suggestions …

Virginity Testing And South Africa's Hiv/Aids Crisis: Beyond Rights Universalism And Cultural Relativism Toward Health Capabilities, Erika George

Faculty Scholarship

In this Article, I explore the tension between the politics of culture and the rights of women and girls to equality, privacy, and sexual autonomy in the context of epidemic disease. Specifically, this Article examines the political debate surrounding the resurgence of virginity testing, its widespread popular support in certain communities, and the South African government's recent efforts to prohibit the practice. This Article argues that the current debate over virginity testing, which focuses on abolition or accommodation of the practice, is misguided and polarizing. It argues that these perspectives on the debate increase the likelihood that the problem causing …

Was Machiavelli Right? Lying In Negotiation And The Art Of Defensive Self-Help, Peter Reilly

Faculty Scholarship

The majority of law review articles addressing lying and deception in negotiation have argued, in one form or another, that liars and deceivers could be successfully reined in and controlled if only the applicable ethics rules were strengthened, and if corresponding enforcement powers were sufficiently beefed up and effectively executed. This article takes a different approach, arguing that the applicable ethics rules will likely never be strengthened, and, furthermore, that even if they were, they would be difficult to enforce in any meaningful way, at least in the context of negotiation. The article concludes that lawyers, businesspeople, and everyone else …

Sanctioning The Ambulance Chaser, Anita Bernstein

Faculty Scholarship

No abstract provided.

Professional Responsibility In Crisis, Douglas L. Colbert

Faculty Scholarship

Some rare, often catastrophic, events present in stark terms a need for careful reflection over the role of attorneys in our society and their ethical duties as members of the legal profession. The devastation caused by both Hurricane Katrina in 2005 and the terrorist attacks on September 11, 2001 certainly falls within this category. Professor Colbert uses these events as a backdrop to examine the legal profession’s ethical obligation when crisis compromises the most basic elements of our system of justice. Acknowledging that numerous members of the bar and thousands of volunteer law students courageously stepped forward in those challenging …

Military Lawyering And Professional Independence On The War On Terror : A Response To David Luban, Charles J. Dunlap Jr., Linell A. Letendre

Faculty Scholarship

No abstract provided.

Preventive Law: A Strategy For Internal Corporate Lawyers To Advise Managers Of Their Ethical Obligations, Z. Jill Barclift

Faculty Scholarship

This article examines the efficacy of Preventive Law jurisprudence to internal corporate law practice. The article compares internal corporate law practice to the practice approach of Preventive Law. The article explores the benefits of Preventive Law jurisprudence to internal corporate law practice. Part I discusses the history and various vectors of Preventive Law. Part II examines the responsibilities of corporate law departments. Part III compares Preventive Law practice skills to internal corporate law practice, and explores the utility of Barton’s problem solving approaches to internal corporate law practice. Finally, the article concludes arguing internal corporate law practice is Preventive Law …

The Human Dignity Of Clients, Kate Kruse

Faculty Scholarship

This essay reviews David Luban's forthcoming book, Legal Ethics and Human Dignity. At the heart of this new book is an argument that interactions between lawyers and clients ought to be at the center of jurisprudential inquiry. Pointing out that most cases do not go to trial and that much transactional work occurs outside the litigation context, he argues that law's defining moments occur when a "client sketches out a problem and a lawyer tenders advice," rather than when a judge decides a litigant's case. This review essay examines how Luban might elaborate a new "jurisprudence of lawyering" by examining …

Conflicts Of Interest And Disclosures: Are We Making A Mountain Out Of A Molehill, David Allen Larson

Faculty Scholarship

The ethical standards governing conflicts of interest disclosure requirements for arbitrators and mediators are numerous and varied. In spite of the considerable attention that conflict of interest questions attract, both the extent to which an arbitrator must disclose past, present, and potential conflicts of interest and the consequences of a failure to make an appropriate disclosure remain unclear. This article examines disclosure requirements themselves, as well as the sanctions and penalties that may result from a failure to disclose information concerning a neutral's impartiality. Particular attention is paid to what generally is regarded as the most extreme consequence of failure; …

Wilfulness Versus Expectation: A Promise-Based Defense Of Wilfull Breach Doctrine, Steve Thel, Peter Siegelman

Faculty Scholarship

Willful breach doctrine should be a major embarrassment to contract law. If the default remedy for breach is expectation damages designed to put the injured promisee in the position she would have been in if the contract had been performed, then the promisor's behavior-the reason for the breach-looks to be irrelevant in assessing damages. And yet the cases are full of references to "willful" breaches, which seem often to be treated more harshly than ordinary ones based on the promisor's bad/willful conduct. Our explanation is that willful breaches are best understood as those that should be prevented or deterred because …

Physicians And Execution: Highlights From A Discussion Of Lethal Injection, Deborah W. Denno

Faculty Scholarship

No abstract provided.

Public Service Must Begin At Home: The Lawyer As Civics Teacher In Everyday Practice, Bruce A. Green, Russell Pearce

Faculty Scholarship

Fifty years ago, the leading national representatives of the American legal profession, the American Bar Association (ABA), and the Association of American Law Schools (AALS), issued a joint report (the Report) on the nature of lawyers' professional responsibility in the context of the adversary system. Principally authored by legal philosopher Lon Fuller, who co-chaired the joint conference that issued it, the Report's premise was that the legal profession's inherited traditions provided only indirect guidance to lawyers in light of their changing roles, and that a "true sense of professional responsibility" must derive from an understanding of the "special services" that …

Discovery About Discovery: Does The Attorney-Client Privilege Protect All Attorney-Client Communications Relating To The Preservation Of Potentially Relevant Information?, Paul W. Grimm, Michael D. Berman, Leslie Wharton, Jenna Beck, Conor R. Crowley

Faculty Scholarship

No abstract provided.

Transparency Is The Solution, Not The Problem: A Reply To Bruce Green, William H. Simon

Faculty Scholarship

I fear that the diffuse and ad hominem tendencies of Bruce Green's reply will distract attention from the core issues I sought to discuss.

First, I argued that issues of professional and academic integrity and accountability are raised when lawyers give advice with certain third-party effects under conditions of partial or complete secrecy. I proposed a variety of soft norms, including especially a presumptive duty of publicity.

Second, I criticized novel aggregate litigation arrangements applied by Leeds, Morelli & Brown (LM&B) in a series of campaigns involving many hundreds of clients, and I criticized the opinions of academic experts, including …

The Past, The Present, And Future Of Legal Ethics: Three Comments For David Luban, William H. Simon

Faculty Scholarship

David Luban helped invent the field of legal ethics some years ago; Legal Ethics and Human Dignity provides an opportunity to assess how it has developed. By way of both homage and critique, I offer three comments on central issues that the book raises: the nature of the moral foundations of lawyers' ethics; the relation of legal and ordinary moral norms in legal ethics decisions; and the relation of ethical norms and organization.

I associate the issue of moral foundations with the past because modern academic discussion of legal ethics began with this focus. The relationship between law and morals …

The Market For Bad Legal Advice: Academic Professional Responsibility Consulting As An Example, William H. Simon

Faculty Scholarship

Clients demand bad legal advice when legal advice can favorably influence third-party conduct or attitudes even when it is wrong. Lawyers supply bad legal advice most readily when they are substantially immunized from accountability to the people it is intended to influence. Both demand and supply conditions for a flourishing market are in place in several quarters of the legal system. The resulting practices, however, are in tension with basic professional and academic values. I demonstrate these tensions through critiques of the work of academic professional responsibility consultants in such matters as Enron, Lincoln Savings & Loan, and a heretofore …

Litigation & Professional Responsibility: Is Overlawyering Overtaking Democracy?, David M. Schizer

Faculty Scholarship

Welcome everyone. We're going to get started. I'm David Schizer, the Dean of Columbia Law School. I'm here to moderate the panel, and our panel's title is, of course, "Is Overlawyering Overtaking Democracy?"

Now, as the moderator I get to ask questions, and I'm going to start with a question of the audience. My question is, aside from me, how many people here have seen Jerry Seinfeld's new animated movie, Bee Movie? I've a six-year-old daughter, which explains why I did – okay, a couple of people. For the rest of the audience's benefit, I should tell you the …

Decency, Dignity, And Desert: Restoring Ideals Of Humane Punishment To Constitutional Discourse, Eva Nilsen

Faculty Scholarship

American punishment today is degrading, indecent, and harsher than deserved despite a Constitution designed to protect people from cruel and unusual punishment. Unfortunately, the U.S. Supreme Court’s response to the increasing inhumanity of contemporary punishment has been to reduce its Eighth Amendment jurisprudence to tidy categories, legal fictions, and hollow phrases. Absent from the discourse is any acknowledgement of the actual day-to-day experience facing the convicted person, or any suggestion that, although punishments can be degrading, they need not be. The case for treating a convicted person with respect for his human dignity, and for constitutional scrutiny of punishment as …

Creeping Impoverization: Material Conditions, Income Inequality, And Erisa Pedagogy Early In The 21st Century, Maria O'Brien

Faculty Scholarship

To say that poverty remains one of the most pressing issues of our time is a colossal understatement. A staggering number of people on the planet live in poverty. In the United States alone, the working poor and those living at or below the poverty line make up 12.6 percent of our populace.' While these individuals may not all be in imminent danger of starving or homelessness, they often lack basic safeguards that those in the upper socio-economic levels of society take for granted: basic health insurance, access to pension programs, disability coverage, and the certainty of a living wage …

Challenges And Guidance For Lawyering In A Global Society, Susan Saab Fortney

Faculty Scholarship

This foreword provides an overview of some key aspects of law practice that have changed over the last thirty years. Advancements in technology that allow communication and interaction across borders have facilitated lawyers in globalizing their practice locality. Consequently, new issues regarding comparative ethics have arisen. This foreword suggests that ethics rules have not kept pace with the changing landscape of law practice and uses current standards for advanced waivers, rules relating to contracts with represented and unrepresented persons, and the proper use of ethics rules in civil litigation to illustrate this point. This foreword raises concern over the erosion …

Do You See What I See - Reflections On How Bias Infiltrates The New York City Family Court - The Case Of The Court Ordered Investigation, Leah A. Hill

Faculty Scholarship

That the Family Court is ill-equipped to address the needs of the hundreds of thousands of cases handled therein is not news. Exploding caseloads, complex problems, and minimal resources are just a few of the ingredients that combine to undermine the Court's ability to fulfill its promise. What has been given less attention until very recently is the extent to which the Family Court's failures disproportionately impact low-income families of color. Any analysis of the Court's impact or efficacy must consider the context I have described in my observations of the Court- the images of black and brown litigants hurrying …

What Lawyers, What Edge?, Michael E. Tigar

Faculty Scholarship

No abstract provided.