Legal Ethics and Professional Responsibility Commons^™

Through A Glass, Darkly: How The Court Sees Motions To Disqualify Criminal Defense Lawyers , Bruce A. Green

Faculty Scholarship

Although raised frequently in the lower courts, the question of what the trial judge's role is in conflict-of-interest cases has, for nearly half a century, lurked in the background of the Supreme Court's decisions concerning the scope of a criminal defendant's right to the undivided loyalty of his attorney. Last term, as its conflict-of-interest jurisprudence reached middle age, the Court had the opportunity to articulate its views on that question. In Wheat v. United States, the Court held that a trial judge has discretion to disqualify defense counsel, even over the defendant's objection, if a serious possibility for a conflict …

Risk Communication Law And Implementation Issues In The United States And European Community, Michael S. Baram

Faculty Scholarship

Risk communication has become an important element of public policy in the United States and the European Community (E.C.) for reducing technological risks to workers, product users and community residents. The risk communication process involves disclosure by an industrial firm (or other party) of information about the hazardous attributes of its activity or product to a regulatory agency or to persons who may be at risk, thereby facilitating a shared understanding of the risk and enabling interpretation of various risk prevention and response measures.

There are two general patterns of risk communication. One involves industrial disclosure to a government agency, …

Informed Consent In The Post-Modern Era, Wendy K. Mariner

Faculty Scholarship

The doctrine of informed consent' is intended to get physicians to talk to their patients so that patients can make reasonably knowledgeable choices about whether to undergo particular forms of medical care. Although the law has long prohibited treatment without the patient's consent,² physicians have resisted the idea that treatment decisions ultimately are for the patient to make. Only recently have physicians been willing to disclose information about the benefits and risks of recommended therapies. ³ Even with the best of intentions, however, the discussions that do take place are often far from the law's ideal of reasonable disclosure …

Duty To The Target: Is An Attorney's Duty To The Corporation A Paradigm For Directors?, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Women In The Law School: It's Time For More Change, Karen Czapanskiy, Jana B. Singer

Faculty Scholarship

No abstract provided.

Securities Law Fifth Circuit Symposium, Steve Thel

Faculty Scholarship

The Fifth Circuit decided some important securities cases during the survey period and issued some interesting opinions. Although the court consistently claimed a conservative reliance on precedent and seldom acknowledged making new law, it interpreted some well-established doctrine in surprising ways. The past year's opinions in fraud cases provide guidance in the related areas of reliance, damages, and plaintiff's due diligence. The year also witnessed important developments in the law governing the relationship between brokerage firms and their clients. The most spectacular development in this area during the survey year was the October collapse in security prices. In light of …

Ethical Discretion In Lawyering, William H. Simon

Faculty Scholarship

In this Article, Professor Simon argues that conventional approaches to legal ethics are too categorical. Rather than operating within a system of formalized ethical rules, he argues, lawyers should exercise judgment and discretion in deciding what clients to represent and how to represent them. In exercising this discretion, lawyers should seek to "do justice." They should consider the merits of the client's claims and goals relative to those of opposing parties and other potential clients. They should also consider the substantive merits of the client's claims and the reliability of the standard legal procedures for resolving the problem at hand. …

Triangular Lawyer Relationships: An Exploratory Analysis, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

The Nuclear Regulatory Commission's Regulation Of Radiation Hazards In The Workplace: Present Problems And New Approaches To Reproductive Health, Neal Smith, Michael S. Baram

Faculty Scholarship

On December 20, 1985, the Nuclear Regulatory Commission (NRC) proposed revisions to its Standards for Protection Against Radiation [hereinafter Standards].¹ If adopted, the new Standards will provide additional protection for millions of workers and their unborn children. The effects of the Standards will extend, however, far beyond the health of those exposed to radiation. Specifically, the NRC's proposal may provide a new paradigm for regulating health hazards that have no safe threshold level of exposure. It will also focus debate on whether or not women should be precluded from working in fetotoxic environments

Made In The U.S.A.: Legal And Ethical Issues In Artificial Heart Experimentation, George J. Annas

Faculty Scholarship

The death of William Schroeder in Louisville, Kentucky, on August 6, 1986, brought to a close a remarkable chapter in public human experimentation. Artificial heart implants represent the most public experiments in the history of the world. The manner in which they are conducted is a matter of utmost public and professional concern, since it graphically portrays the seriousness with which we take our laws and ethical rules regarding the protection of the rights and welfare of human subjects. Unfortunately, the brief history of artificial heart implants is neither a happy nor a proud one. Begun with high hopes and …

To Whom Does The Government Lawyer Owe The Duty Of Loyalty When Clients Are In Conflict, William Josephson, Russell G. Pearce

Faculty Scholarship

This Article focuses on the continuing debate on the ethical obligations of government lawyers: do government lawyers represent the people or do they represent a client? The Article explains that the dominant conception that government lawyers represent the people actually results in government lawyers representing themselves. After examining alternative approaches to determining the identity of the government lawyer’s client, the Article concludes that only one approach is consistent with both the ethical rules and our republican system of government. The government lawyer’s client properly understood is an elected official or, in certain cases, an agency head with legal authority independent …

The Lawyer As Informer, Gerard E. Lynch

Faculty Scholarship

From the schoolyard "tattletale" to the police officer's "confidential informant" to the Pentagon "whistle blower," our society is deeply ambivalent toward those who report the wrongdoing of others to the authorities. On the one hand, society values informers. Without informers, serious misbehavior would certainly escape correction. The police officers' code of silence with respect to fellow officers' crimes, for example, may be a major obstacle to eliminating police corruption and brutality. On the other hand, society scorns informers as betrayers of confidence. Even one who violates an antisocial pact such as the police officers' code of silence is viewed as …

Nix V. Whiteside: The Lawyer's Role In Response To Perjury, James R. Mccall

Faculty Scholarship

No abstract provided.

Judicial Clerkships And Elite Professional Culture, William H. Simon

Faculty Scholarship

Clerkships have become increasingly prominent in the culture of elite law schools in recent years. More students are seeking clerkships; the application process starts earlier and lasts longer; and the quest seems to generate more anxiety and absorb more energy than in the past.

Ethical Dilemmas Facing Today's Lawyer, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

Babbitt V. Brandeis: The Decline Of The Professional Ideal, William H. Simon

Faculty Scholarship

The vision of professionalism that entranced the liberal legal elite for a century now strikes most lawyers and law students as implausible or uninteresting or both. The papers in this symposium by Robert Nelson and by Ronald Gilson and Robert Mnookin are outstanding examples of two of the current modes of repudiation of this vision: the mode of skepticism and the mode of indifference. Nelson takes the claims of the professional vision seriously, and, using a methodology responsive to them, sets out to refute them. Gilson and Mnookin ignore the vision, and, using a methodology that assumes the vision's invalidity, …

Sharing Among The Human Capitalists: An Economic Inquiry Into The Corporate Law Firm And How Partners Split Profits, Ronald J. Gilson, Robert H. Mnookin

Faculty Scholarship

Large corporate law firms seem to be in a state of extraordinary flux. Success and failure are both on the rise. Large firms appear to supply a substantial and growing proportion of the legal services consumed by American business enterprises and to hire a significant fraction of the graduating classes of elite American law schools. Moreover, the last twenty years have witnessed a remarkable expansion in both the number of large firms and the absolute size of the biggest. But accompanying this striking success, there are also signs of serious institutional instability. During the last few years, several previously successful …

Charting The Future Course For Corporate Management Of Health Risks, Michael S. Baram

Faculty Scholarship

Corporations engage in technological activities of benefit to society, but thereby also create new health risks for workers, consumers, and communities. Government regulatory agencies deal with this chronic problem by conducting risk analyses and imposing various duties on private firms. Despite agency efforts and corporate compliance, health risks continue to arise and take their toll. To what extent will private firms voluntarily assume greater responsibility for preventing these health risks? This question is of increasing social importance, because the limitations of regulatory efforts are now obvious, whereas health risks are now being identified at what appears to be an increasing …

The Right To Know And The Duty To Disclose Hazard Information, Michael S. Baram

Faculty Scholarship

In late 1983, the Occupational Safety and Health Administration (OSHA) promulgated its final rule on "hazard communication." This rule establishes for many workers the right to know certain health hazard information held by their employers. Concurrently, the rule imposes on these employers the duty to disclose such privately held information. ^I

The OSHA rule is limited and late, and joins a crowded field. It follows in the wake of several decades of legal developments which have established various rights to know and duties to disclose. Since the latter part of the nineteenth century, state common law for personal injuries has …

Visions Of Practice In Legal Thought, William H. Simon

Faculty Scholarship

This essay contrasts the vision of law practice expressed in the established professional culture with a vision derived from recent Critical legal writing.

Promise, Benefit, And Need: Ties That Bind Us To The Law, Kent Greenawalt

Faculty Scholarship

In this lecture, I address the fundamental question of whether we have a good moral reason for obeying the law. Understanding why we should obey the law, if we should, is the starting point for resolving conflicts between that duty and other claims upon us.

I am primarily concerned here with generally applicable laws of the state, but I also consider rules that apply to members of more limited associations, such as law schools and the bar. Concern over obligation to obey rules does not begin and end with rules of the state. Moreover, the relation of citizens to the …

Professional Responsibility Issues In International Law Practice , Roger J. Goebel

Faculty Scholarship

The present Code of Professional Responsibility (CPR) is essentially geared to guide the conduct of the lawyer as advocate or litigator. It is certainly of assistance to the American international lawyer in establishing guidelines for his conduct, but only of limited assistance since the international lawyer usually serves more as an advisor to, or negotiator for, his clients. In contrast, the recent ABA draft Model Rules of Professional Conduct (MRPC) provide a more useful basis for examination of the international lawyer's ethical responsibilities, as they do in many respects for the corporate or commercial lawyer who assists domestic clients in …

From Tort To Crime: Some Reflections On The Criminalization Of Fiduciary Breaches And The Problematic Line Between Law And Ethics, John C. Coffee Jr.

Faculty Scholarship

Within the context of mail and wire fraud prosecutions, criminal liability for breach of fiduciary duties is being imposed with increasing frequency. Professor Coffee discusses the disturbing failure of the courts to require that the fiduciary's conduct have caused legally cognizable harm to the beneficiary. He concludes that an affirmative defense should be available to fiduciaries to show the lack of proximate cause between a breach and the injury. In addition, federal enforcement should occur only after state and private remedies have proven inadequate.

A Functional Analysis Of The Effective Assistance Of Counsel, A Note, Bruce A. Green

Faculty Scholarship

The sixth amendment provides that in all criminal prosecutions the accused shall enjoy the right "to have the Assistance of Counsel for his defence." The Supreme Court has construed this clause to guarantee to criminal defendants the "effective" assistance of counsel performing within a minimum standard of competency. Prevalent lower court interpretations of the right. to effective assistance require a showing that counsel's inadequate performance caused actual prejudice to the defendant's interest in obtaining an acquittal. Because most defendants are unable to demonstrate the actual impact upon the outcome of their trial of an attorney's departure from normal competency, courts …

Balzacian Legality, Thomas E. Carbonneau

Faculty Scholarship

The study of law and literature is an area of growing interest to legal scholars in the United States. Honore de Balzac incorporated in his works a panoramic view of the social reality of nineteenth century France. In this context, the fidelity of Balzac's plots and characters to their external models has been well-documented in a number of fields, including sociology, commerce, and finance. In addition to this penchant for realism, however, Balzac laced his novels with an equally evident moral content. This commitment to accuracy and morality also influenced Balzac's novelistic treatment of the law and lawyers.

Balzac's work …

Disqualification Of An Attorney Representing Multiple Witnesses Before A Grand Jury: Legal Ethics And The Stonewall Defense, Nancy J. Moore

Faculty Scholarship

Prompted by the increasing recognition that certain economic and political conduct (such as consumer fraud, environmental pollution, and questionable campaign financing practices) has a profound effect on society, lawmakers have recently labelled as criminal "a whole range of political and business activities which, until recently, had been a more or less accepted part of American life."I Armed with both new statutes and a new aggressiveness in the enforcement of pre-existing statutes, 2 federal and state prosecutors have during the past ten years compiled an impressive record in the investigation and prosecution of white collar crime, organized crime and official corruption.3 …

The Ideology Of Advocacy: Procedural Justice And Professional Ethics, William H. Simon

Faculty Scholarship

Conventional morality frowns at the ethics of advocacy. Public opinion disapproves of what it considers the lawyer's most characteristic activities. Popular culture can reconcile itself to him only by pretending that all his clients are virtuous. The lawyer's response takes the form of a dialectic of cynicism and naiveté. On one hand, he sees his more degrading activities as licensed by a fundamental amorality lying beneath conventional morality. On the other hand, he sees his more heartening ones as serving an institutional justice higher than conventional morality. The two moods divide the profession as a whole, and the division can …

Technology Assessment And Social Control, Michael S. Baram

Faculty Scholarship

The emerging concepts of corporate responsibility and technology assessment are, to a considerable extent, responses to problems arising from technological developments and their applications by industry and government. These problems appear in the relatively discrete sectors of consumer protection and occupational safety and in the diffuse sectors of community quality of life and the national and international environments.

The Social Control Of Science And Technology, Michael S. Baram

Faculty Scholarship

Science and technology increasingly work changes in the complex matrix of society. These changes pervade our ecological systems and our physical and psychic health. Less perceptibly, they pervade our culture, our values, and our value based institutions such as the law. In turn, our values and institutions shape the progress and utilization of science and technology.

As we know, science and technology have provided society with enormous material benefits and a higher standard of living and health. But we now realize that this process has been accompanied by alarming rates of resource consumption and many new hazards to ecological systems …

Lawyer's Role In Resistance, Michael E. Tigar

Faculty Scholarship

No abstract provided.