Legal Ethics and Professional Responsibility Commons^™

Legal Ethics Of Ai Snake Oil: Navigating The Hype, Harm, And Hope Of Legal Ai, Drew Simshaw

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This paper argues that the legal ethics of AI extend far beyond competence and hallucinations. It shows how AI often functions as a mirror, exposing deeper ethical questions about institutional incentives, lawyer wellbeing, access to justice, and AI's broader social and environmental impacts.

Attorneys And Ai: How Lawyers Use Artificial Intelligence And Analyze Its Impacts, Matthew I. Hall, Christian Turner, Eddie A. Gomez Schieber, Nathaniel Kite, Ari Schlesinger

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AI systems are testing lawyers' professional ethics obligations of competence, confidentiality, and candor. In the legal profession, the widespread availability of AI systems presents opportunities, like improving the review of documents during the discovery stage of a lawsuit, and challenges, illustrated by the handful of high-profile incidents where lawyers submitted legal briefs in court citing and describing fictitious cases based on AI-generated output. We conducted interviews with 44 legal professionals in the U.S. to understand how attorneys are making sense of AI technology and the impacts these technologies are having on their profession, legal ethics, and legal institutions. We describe …

Forging Ahead Or Proceeding With Caution; Developing Policy For Generative Artificial Intelligence In Legal Education, Nachman Gutowski, Jeremy W. Hurley

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Generative Artificial Intelligence is rapidly being integrated into every facet of society, including a growing impact on law schools. It has become abundantly clear that there is a need to develop well-defined governing policies for its use and adoption in legal education. This article offers an introductory analysis of related approaches currently taken in various law schools, exploring the factors influencing these policies and their ethical implication. A comparative review of institutional policies reveals both similarities and unique approaches. Common themes include the need for balance between limited use and outright reliance, as well as the need for transparency and …

Lex Ex Machina: Forging A New Ethical Framework For Ai And Technology In The Law, Joseph Regalia

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The rise of generative artificial intelligence (GAI) offers the legal profession a chance to reevaluate and reshape its ethical standards. This article argues that GAI's potential demands a more detailed approach to legal ethics, especially concerning technology use. While current ethics rules provide a general foundation, they do not fully address the unique challenges and opportunities of GAI and similar advanced technologies.

By reviewing historical contexts of legal technology ethics and recent GAI regulations, this article suggests a new model for technology ethics in law. It calls for the inclusion of detailed, flexible standards in ethical guidelines, moving beyond the …

Being There: Perils Of Disembodied Mediation, Robert Mcniff

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The article examines the rise of online mediation, particularly accelerated by the COVID-19 pandemic, and critiques its limitations compared to in-person mediation. Drawing on 20th-century philosophical, psychological, and sociological thought, the analysis argues that online mediation diminishes the embodied, emotional, and intersubjective dimensions of human interaction, which are critical for empathy, moral agency, and meaningful dispute resolution. While online mediation offers convenience, it risks dehumanizing the process by reducing participants to disembodied images, thereby undermining the unique strengths of mediation as a holistic and empathetic alternative to legal adjudication.

Absolutely Unnecessary Immunity, Eileen R. Prescott

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Prosecutors, like judges, cannot be sued for their professional misconduct in most jurisdictions. As long as their actions are sufficiently tied to their job duties, their actual malice does not matter, even if they had demonstrable malice-a prosecutor could bring baseless charges against an ex-spouse specifically to harass them, with absolute immunity from suit. This immunity allows prosecutors to abuse the power of their office without civil recourse. In theory, absolute immunity aims to protect the office by resolving cases simply and quickly, but in reality, courts get bogged down litigating whether a prosecutor's specific action was sufficiently tied to …

The Motherhood Myth, Traditional Firms, And The Underrepresentation Of Women, Paula Schaefer

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This Article makes the case that the motherhood narrative—that women are underrepresented in partnership and leadership ranks of law firms because they are their children’s primary caregivers—is a myth. After detailing how the motherhood myth has been used as an excuse for a lack of meaningful change, the Article provides evidence of an alternative narrative: “traditional firms” are structurally and culturally antagonistic to women. These firms are characterized by extreme work expectations and heavy reliance on the unpaid labor of stay-at-home spouses (SAHSs). Traditional firms’ dependence upon SAHSs is central to maintaining the firm status quo and driving out women. …

The Case For (And Against) Aba Regulation Of Non-J.D. Programs, Benjamin H. Barton

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American law schools have pulled out of what looked like a death spiral. From 2008-18 job placement and bar passage cratered and applications and JD enrolment followed. Some law schools found themselves trapped between Scylla and Charybdis – if they did not loosen admissions, they would not have the funds to keep the doors open. But if they loosened admissions too much bar passage and placement suffered, prompting a possible closure via disaccreditation by the ABA (or the DOE).

There are (broadly speaking) two models of profitable higher education in the United States. The first is the old school, classic …

Aba Standard 303(C) And Divisive Concepts Legislation And Policies: Challenges And Opportunities, Sherley Cruz, Becky L. Jacobs, Karen L. Tokarz, Kendall Kerew, Andrew King-Ries, Carwina Weng

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This article by six clinicians discusses the challenges and opportunities of new ABA Standard 303 (c), including the implications of and interactions between Standard 303(c) and “divisive concepts” laws and other threats to representation, academic freedom, and free speech in legal education. The article also highlights the intersection of Standard 303(c) and Standard 303(b)(3), which addresses professional identity formation; discusses opportunities to adapt current curriculum and teaching and create new curricular responses to meet the new accreditation standards and interpretations; and explores ways to resist increasing limitations and find a supportive academic community to sustain hope and resilience.

Representing Elon Musk, Joan Macleod Heminway

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What would it be like to represent Elon Musk on business law matters or work with him in representing a business he manages or controls? This article approaches that issue as a function of professional responsibility and practice norms applied in the context of publicly available information about Elon Musk and his business-related escapades. Specifically, the article provides a sketch of Elon Musk and considers that depiction through a professional conduct lens, commenting on the challenges of representing or working with someone with attributes and behaviors substantially like those recognized in Elon Musk.

Ultimately (and perhaps unsurprisingly, for those who …

Interpreting Ethics Rules, Samuel J. Levine

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This Article explores the interpretation of ethics rules through the prism of two rules that have been the subject of ongoing controversy and contention: Rule 4.2, the “no-contact” rule, which prohibits a lawyer from communicating with a represented client absent the consent of that client’s lawyer, and Rule 8.4(g), which prohibits various forms of discrimination and harassment. Each of these rules provides a model for a wider examination of different interpretive approaches to ethics rules, grounded in different attitudes toward the features and functions of ethics codes. Specifically, the debate revolving around Rule 4.2 illustrates competing approaches to interpreting a …

Training Law Students To Model Civility When Social Media Makes Civility Harder To Maintain, Nancy B. Rapoport

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No abstract provided.

Am I My Colleague's Keeper When It Comes To Disclosing Connections?, Nancy B. Rapoport

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No abstract provided.

Failing To See What's In Front Of Our Eyes: The Effect Of Cognitive Errors On Corporate Scandals, Nancy B. Rapoport

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Why do we believe flim-flam artists so readily, especially in the business and commercial realm? This Article explores four reallife versions of “The Emperor’s New Clothes” fable—FTX, WeWork, Theranos, and a former bankruptcy judge’s hidden romance— and asks why people bought into the hype. Where were the warning signs, and how might we better spot those signs in the future?

Access To Ai Justice: A Global Response To A Global Crisis, Drew Simshaw

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No abstract provided.

Technology Competence As A Compass For Helping To Close The Justice Gap, Drew Simshaw

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No abstract provided.

Deborah L. Rhode In Memoriam: Three Stories And Ten Life Lessons, Benjamin H. Barton

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In this Essay, Professor Benjamin H. Barton offers a heartfelt tribute to the late legal scholar, Professor Deborah L. Rhode. Professor Barton reflects on Rhode’s prolific career, which spanned areas including legal ethics, feminism and women in the law, and lawyers as leaders. He also examines Rhode’s later works, which delved into more personal topics such as character, ambition, and legacy. Through personal anecdotes and life lessons, Professor Barton honors Rhode’s legacy as a model academic, mentor, and transformative force in the legal profession.

Promoting Technological Competency Through Microlearning And Incentivization, Eliza Boles

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No abstract provided.

Ethics For Real Estate Lawyers Today, John G. Cameron Jr., Nancy B. Rapoport

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This essay discusses various ethics issues that real estate lawyers experience: everything from new ABA Model Rule 8.4(g) (avoiding discrimination) to rules that apply when a lawyer works from home to technological competence and social media to the attorney-client privilege and to advance conflicts waivers. There is also a social science overlay that discusses why smart people do dumb things.

Jewish Ethics, Samuel J. Levine

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Essays on Jewish Ethics in:

Chapter 2 Introduction to Ethical Approaches in Data Science

Chapter 4 Machine Models in Court

The Prosecution Bar, William Ortman

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The American legal profession needs a prosecution bar. Before lawyers are permitted to appear for the government in a criminal case, they should be licensed not just to practice law, but to practice prosecution. The two are not the same. Regulating them as if they were fosters injustice and fortifies the carceral state.

“Doing justice” is the orienting creed of prosecutorial ethics, in theory, while on the ground, American prosecutors routinely indulge in unjust practices. This Article argues that prosecutors’ membership in an undifferentiated legal profession is the key to understanding the contradiction. Lawyers’ training, socialization, and professional regulation fixate …

Ethical Implications Of Law Practice Technology, Eliza Boles

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The following CLE materials were prepared by Eliza Boles for presentation on December 6, 2022. Materials were approved by the Tennessee Commission on Continuing Legal Education for two hours of mandated ethics credit.

A Study Of Tax Lawyers Discussing Duties, Michelle M. Kwon, Michael Hatfield

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This Article reports the first qualitative empirical study of U.S. tax lawyers. We interviewed women lawyers who were tax planning specialists. Though this is the first such study of U.S. tax lawyers, this methodology has been used often to study the professional ethics of other tax practitioners around the world. We had three research questions that we sought to answer through dynamic conversations on topics such as the distinctions between good and bad tax plans and good and bad tax lawyers and also the joys and stresses of tax practice. Our first research question was as to the make-up of …

The Long Shadow Of United States V. Rosenberg: A Biographical Perspective On The Hon. Irving Robert Kaufman, Rodger D. Citron

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No abstract provided.

The Lawyers Justice Corps: A Licensing Pathway To Enhance Access To Justice, Eileen Kaufman

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The idea for establishing a Lawyers Justice Corps emerged out of efforts to solve a problem: how to license lawyers at a time when COVID-19 had expanded the need for new lawyers while also making an in-person bar exam dangerous, if not impossible. We-the Collaboratory on Legal Education and Licensing for Practice'-proposed the Lawyers Justice Corps to provide a different and better way of certifying minimum competence for new attorneys while at the same time helping to create a new generation of lawyers equipped to address a wide range of social justice, racial justice, and criminal justice issues. When implemented, …

The Specter Of Malpractice: When Law Firm General Counsel And Risk Management Professionals Are Confronted With Potential Malpractice Claims And Ethics Violations, Joseph R. Tiano Jr., Nancy B. Rapoport, William J. Siroky

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Every day, law firm general counsel and other law firm risk management professionals face a very practical, very vexing problem. The problem is what to do when hearing that a serious ethical mistake or impropriety may have occurred—but without any concrete confirmation that something problematic has, in fact, happened. This essay discusses the most important initial steps and questions that the firm’s general counsel or other risk management professional must address in this confounding situation where the “specter of malpractice” is present. We call this the “specter of malpractice” because a malpractice claim has not yet fully materialized (and it …

A Tribute To Professor Catherine Mahern, Lawrence Raful

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No abstract provided.

Access Law Schools & Diversifying The Profession, Deseriee A. Kennedy

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Lawyers do not reflect the racial diversity in the United States. The legal profession continues to struggle with ways to achieve and maintain racial diversity. Law schools play a critical role in the path to practice, and therefore an examination of the barriers to the profession they created is warranted. This essay critiques the over-reliance on standardized testing in law school admissions and advocates for an open admissions process that prioritizes racial and academic diversity. It suggests that the benefits of minimizing the role of standardized tests far outweigh any perceived costs in legal education. This essay concludes that the …

Training Law Students To Maintain Civility In Their Law Practices As A Way To Improve Public Discourse, Nancy B. Rapoport

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Our current social discourse is broken. Not only have we resorted to name-calling instead of reasoned discussion, but we have also resorted to the fundamental attribution error: we attribute bad motives to people with whose positions we disagree rather than starting with the presumption that, perhaps, buried deep within their positions could be a grain of truth. As Yoni Appelbaum observed in a recent article in The Atlantic, "Recent research by political scientists at Vanderbilt University and other institutions has found both Republicans and Democrats distressingly willing to dehumanize members of the opposite party."' We need to find a …

Navigating Technology Competence In Transactional Practice, Lori D. Johnson

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In 2012, the American Bar Association House of Delegates, based on the work of the ABA Commission on Ethics 20/20, amended the Model Rules of Professional Conduct (Model Rules) to include a new requirement concerning lawyer competence. The obligation, enacted as Comment 8 to existing Model Rule 1.1 (outlining a lawyer's requisite competence) (Rule 1.1), requires lawyers "keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology." To date, Comment 8 to Rule 1.1 (Comment 8 or the Comment) has been adopted in thirty-eight states, and has begun generating scholarship and …