Legal Ethics and Professional Responsibility Commons^™

Mandatory Legal Malpractice Insurance: Exposing Lawyers' Blind Spots, Susan Saab Fortney

Faculty Scholarship

The legal landscape for lawyers’ professional liability in the United States is changing. In 2018, Idaho implemented a new rule requiring that lawyers carry legal malpractice insurance. The adoption of the Idaho rule was the first move in forty years by a state to require legal malpractice insurance since Oregon mandated lawyer participation in a malpractice insurance regime. Over the last two years, a few states have considered whether their jurisdictions should join Oregon and Idaho in requiring malpractice insurance for lawyers in private practice. To help inform the discussion, the article examines different positions taken in the debate on …

Rise Of The Robot Lawyers?, Milan Markovic

Faculty Scholarship

The advent of artificial intelligence has provoked considerable speculation about the future of the American workforce, including highly educated professionals such as lawyers and doctors. Although most commentators are alarmed by the prospect of intelligent machines displacing millions of workers, this is not so with respect to the legal sector. Media accounts and some legal scholars envision a future where intelligent machines perform the bulk of legal work, and legal services are less expensive and more accessible. This future is purportedly at hand as lawyers struggle to compete with technologically savvy alternative legal service providers.

This Article challenges the notion …

Professional Judgment In An Era Of Artificial Intelligence And Machine Learning, Frank A. Pasquale

Faculty Scholarship

Though artificial intelligence (AI) in healthcare and education now accomplishes diverse tasks, there are two features that tend to unite the information processing behind efforts to substitute it for professionals in these fields: reductionism and functionalism. True believers in substitutive automation tend to model work in human services by reducing the professional role to a set of behaviors initiated by some stimulus, which are intended to accomplish some predetermined goal, or maximize some measure of well-being. However, true professional judgment hinges on a way of knowing the world that is at odds with the epistemology of substitutive automation. Instead of …

Florida Legal Malpractice Law: Commentary And Forms, Robert Jarvis

Faculty Scholarship

No abstract provided.

When Less Is More: The Limitless Potential Of Limited Scope Representation To Increase Access To Justice For Low- To Moderate-Income Individuals, Kristy D'Angelo-Corker

Faculty Scholarship

No abstract provided.

The Outsized Influence Of The Fcpa?, Veronica Root Martinez

Faculty Scholarship

The current power and influence of the Foreign Corrupt Practices Act (“FCPA”) is really quite remarkable when one considers the statute was largely ignored for its first twenty-five years of existence. This statute, meant to reign in corruption by United States companies doing business abroad; has generated billions of dollars in revenue for the United States government; prompted the development of law firm practice groups and law school courses; become the subject of numerous scholarly articles; and has, arguably, made anti-bribery efforts the highest of priorities for multinational corporations engaged in robust compliance efforts. Corporations, scholars, and the public would …

Don't Call Me Sweetheart: Why The Aba's New Rule Addressing Harrassment And Discrimination Is So Important For Women Working In The Legal Profession Today, Kristy D'Angelo-Corker

Faculty Scholarship

No abstract provided.

Regulating Prosecutors’ Courtroom Misconduct, Bruce A. Green

Faculty Scholarship

Trial prosecutors’ visible misbehavior, such as improper questioning of witnesses and improper jury arguments, may not seem momentous. Sometimes, the improprieties are simply the product of poor training or overenthusiasm. In many cases, they pass unremarked. As the Chicago Eight trial illustrated, trial prosecutors’ improprieties may also be overshadowed by the excesses of other trial participants—the witnesses, the defendants, the defense lawyers, or even the trial judge. And when noticed, prosecutors’ trial misbehavior can ordinarily be remedied, and then restrained, by a capable trial judge. It is little wonder that disciplinary authorities, having bigger fish to fry, are virtually indifferent …

Law Is Not Enough, Neil S. Siegel

Faculty Scholarship

In this Carhart Memorial Lecture, Professor Neil Siegel seeks to explain why, over the past several years, many Americans of diverse ideological commitments have been emphasizing the importance of constitutional norms. It is because they understand that law is not enough to sustain the American constitutional project. Why is law not enough? Because the vitally important purposes that Americans ascribe to the U.S. Constitution require more than legal fidelity for their vindication. Constitutional norms are constitutional in the sense that they are closely tied to the purposes, or spirit, of the Constitution. They are constitutional in the sense that it …

The Three Ages Of Modern American Lawyering And The Current Crisis In The Legal Profession And Legal Education, Rachel F. Moran

Faculty Scholarship

During the first months of 2018, two short pieces on legal education were published. One reported on the results of a survey of college graduates, law school graduates, and holders of other advanced degrees. The study found that today’s law graduates were less likely than pre-recession counterparts to report that the J.D. degree was worth the cost and more likely to have second thoughts about the decision to go to law school. The findings prompted Aaron Taylor, executive director of the Access Lex Center for Legal Education Excellence, to conclude that there are “two distinct worlds of law graduates” made …

A Common-Sense Defense Of Janus: Forthcoming Changes In The Public Sector, Maria O'Brien

Faculty Scholarship

Many scholars and others have, for some time now, been calling attention to the alarming growth in post-employment and other benefits for unionized employees in the public sector. ¹⁷ A fairly well-understood phenomenon is thought to explain the inability of state and local governments to resist outsized demands from their public unions. As ¹⁸ Is and others ¹⁹ have argued, the central problem with public sector unions is that they find it easy to capture their employers (taxpayers) in ways that private sector unions cannot. The role played by often eager and feckless elected officials in this process has also …

Judicial Impartiality In An Empirical Era, Tigran W. Eldred

Faculty Scholarship

The psychological dimensions of judicial impartiality is a topic of considerable interest, with a growing body of scholarship focused on the reasons judges often are unable to perceive their own biases.¹ The attention is not on why judges intentionally downplay factors that can undermine their own objectivity, but rather on the empirical reasons that everyone, judges included, tend to be unaware of the impact of their own biases. This “bias blind spot,”² a product of a series of unconscious cognitive and motivational factors, is at the center of the discussion, with even the Supreme Court making passing reference …

Us Military Medical Ethics In The War On Terror, George J. Annas, Sondra S. Crosby

Faculty Scholarship

Military medical ethics has been challenged by the post-11 September 2001 ‘War on Terror’. Two recurrent questions are whether military physicians are officers first or physicians first, and whether military physicians need a separate code of ethics. In this article, we focus on how the War on Terror has affected the way we have addressed these questions since 2001. Two examples frame this discussion: the use of military physicians to force-feed hunger strikers held in Guantanamo Bay prison camp, and the uncertain fate of the Department of Defense’s report on ‘Ethical Guidelines and Practices for US Military …

Please Tweet Responsibly: The Social And Professional Ethics Of Public Defenders Using Client Information In Social Media Advocacy, Nicole Smith Futrell

Faculty Scholarship

Every day the criminal legal system hauls poor and marginalized individuals through a process wrought with trauma, indignity, and abuse. Public defenders representing the criminally accused view their clients and the system from a unique vantage point: they bear witness to the human costs of a system that falls far short of its purported norms and ideals. For the public defender who works within this reality day in and day out, fighting for each individual client might feel limited in its wider impact. Some public defenders have found that using online and social media platforms, such as Twitter, to provide …

Preventing Sexual Harassment And Misconduct In Higher Education: How Lawyers Should Assist Universities In Fortifying Ethical Infrastructure, Susan Saab Fortney

Faculty Scholarship

The shocking reports of sexual misconduct involving Larry Nassar, the former physician at Michigan State University, captured attention worldwide. More than 300 women sued alleging that the university ignored or dismissed complaints. In Congressional testimony the former president of Michigan State apologized and noted that an independent review of the university's policies revealed that they were among the most robust that the consultants had seen. This raises the question as to how sexual misconduct could have gone unaddressed for many years. The answer to this question may be found in a 2018 Consensus Report of the National Academies of Sciences, …

Digging Them Out Alive, Michael Millemann, Rebecca Bowman Rivas, Elizabeth Smith

Faculty Scholarship

From 2013-2018, we taught a collection of interrelated law and social work clinical courses, which we call “the Unger clinic.” This clinic was part of a major, multi-year criminal justice project, led by the Maryland Office of the Public Defender. The clinic and project responded to a need created by a 2012 Maryland Court of Appeals decision, Unger v. State. It, as later clarified, required that all Maryland prisoners who were convicted by juries before 1981—237 older, long-incarcerated prisoners—be given new trials. This was because prior to 1981 Maryland judges in criminal trials were required to instruct the jury …

The Established Continuing Duty, David M. Siegel, Tigran W. Eldred

Faculty Scholarship

This brief article traces the development of a new standard of practice for lawyers handling criminal cases: an obligation to assist their former clients, through affirmatively disclosing to subsequent counsel and protecting from disclosure to prosecutors, any information that may assist the former client in attacking his prior conviction – including attacking the work of his prior lawyer. This continuing duty, most recently and expansively recognized in the American Bar Association’s Standards for the Defense Function (4th Ed. 2016), reflects increased understanding of the importance of ensuring effective assistance of counsel, acknowledged in recent state and federal court decisions, opinions …

Judge Victor Marrero’S Challenge To The Legal Profession: A ‘Little Rebellion Now And Then’, John D. Feerick

Faculty Scholarship

No abstract provided.

Fiduciary Principles In Agency Law, Deborah A. Demott

Faculty Scholarship

No abstract provided.

When Should The First Amendment Protect Judges From Their Unethical Speech?, Lynne H. Rambo

Faculty Scholarship

Judges harm the judicial institution when they engage in inflammatory or overtly political extrajudicial speech. The judiciary can be effective only when it has the trust of the citizenry, and judicial statements of that sort render it impossible for citizens to see judges as neutral and contemplative arbiters. This lack of confidence would seem especially dangerous in times like these, when the citizenry is as polarized as it has ever been.

Ethical codes across the country (based on the Model Code of Judicial Conduct) prohibit judges from making these partisan, prejudicial or otherwise improper remarks. Any discipline can be undone, …

The State's Role In The Regulation And Provision Of Legal Services In South Africa And The United States: Supporting, Nudging Or Interfering?, Helen Kruuse, Philip Genty

Faculty Scholarship

An independent legal profession is said to be “the bulwark of a free and democratic society.” It is also said that a high measure of independence of mind and action by legal actors is necessary for the maintenance of the rule of law. However, too often, there is the allegation (within the sociological literature in particular) that the legal profession has used the concepts of independence and the rule of law as a shield or cuirass rather than as a sword. The image of lawyers representing unpopular clients fearlessly and advocating on behalf of unpopular causes, so as to uphold …

Adr And Access To Justice: Current Perspectives, Ellen E. Deason, Michael Z. Green, Donna Shestowsky, Rory Van Loo, Ellen Waldman

Faculty Scholarship

Access to justice is a broad topic, and we cannot cover everything. You will notice a few major omissions. Most notably, we are not going to emphasize consumer pre-dispute arbitration agreements. This is not because they are not important, but because much has been written and said on this topic, and it could easily swallow the whole discussion. Also, we are probably not going to say very much about restorative justice, and I am sure you will notice some other holes. We invite you to raise missing issues in your comments.

Let me start with a few opening remarks. We …

Teaching Bioethics: The Role Of Empathy & Humility In The Teaching And Practice Of Law, Barbara A. Noah

Faculty Scholarship

This essay considers the role of empathy and humility in the professional practices of physicians and lawyers and in those who prepare students for these professions. Beginning with an overview of the goals and methods of legal education, it compares similar goals in medical education and the value of practicing law (and medicine) with empathy and humility. The essay then describes exercises used in the law school classroom designed both to teach law students about end-of-life law and also to allow them to practice counseling clients. Through these exercises, law students can experience firsthand the challenges of advising a client …

The Continuing Duty In Reality: A Preliminary Empirical Look, David M. Siegel, Tigran W. Eldred

Faculty Scholarship

The continuing duty of criminal defense counsel to their former clients, even when those former clients bring post-conviction actions alleging ineffective assistance of counsel, has existed as a national practice standard in capital cases since at least 1987. In addition to its inclusion in the ABA’s Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases since 1989, duties to former clients exist in state ethics rules as well as the ABA Model Rules of Professional Conduct. The duty has been further operationalized in non-capital litigation through a 2010 ABA formal ethics opinion concerning disclosures by trial counsel …

Reconceptualizing The Whistleblower's Dilemma, Miriam Baer

Faculty Scholarship

No abstract provided.

Frozen Ethics: Melting The Boundaries Between Medical Treatment And Organ Procurement, George J. Annas, Michael A. Grodin

Faculty Scholarship

When Renee Fox, medical sociologist and noted historian of organ transplantation, first learned of the proposal to use "non-heart-beating cadavers" as organ sources more than 25 years ago, she was appalled. She labeled the proposal "the most elaborately macabre scheme for obtaining organs that I have encountered," adding that "it borders on ghoulishness." She saw the procedure as "beyond the pale of the medically decent, morally allowable, and spiritually acceptable" (Fox 1993, 232). But medically decent has seldom gotten in the way of procuring organs for transplant, and we now seem to be on the verge of adopting an "uncontrolled" …

Gender As A Variable In Natural-Language Processing: Ethical Considerations, Brian N. Larson

Faculty Scholarship

Researchers and practitioners in naturallanguage processing (NLP) and related fields should attend to ethical principles in study design, ascription of categories/variables to study participants, and reporting of findings or results. This paper discusses theoretical and ethical frameworks for using gender as a variable in NLP studies and proposes four guidelines for researchers and practitioners. The principles outlined here should guide practitioners, researchers, and peer reviewers, and they may be applicable to other social categories, such as race, applied to human beings connected to NLP research.

Reshaping Third-Party Funding, Victoria Sahani

Faculty Scholarship

Third-party funding is a controversial business arrangement whereby an outside entity—called a third-party funder—finances the legal representation of a party involved in litigation or arbitration or finances a law firm’s portfolio of cases in return for a profit. Attorney ethics regulations and other laws permit nonlawyers to become partial owners of law firms in the District of Columbia, England and Wales, Scotland, Australia, two provinces in Canada, Germany, the Netherlands, New Zealand, and other jurisdictions around the world. Recently, a U.S.-based third-party funder that is publicly traded in England started its own law firm in England. In addition, some U.S. …

Florida Legal Malpractice And Attorney Ethics, Robert Jarvis, Warren Trazenfeld, Timothy Chinaris

Faculty Scholarship

No abstract provided.

The Politics Of Professionalism: Reappraising Occupational Licensure And Competition Policy, Sandeep Vaheesan, Frank A. Pasquale

Faculty Scholarship

No abstract provided.