Legal Ethics and Professional Responsibility Commons^™

In Re Cardinal Health, Inc. Securities Litigation, Lucas T. Charleston

NYLS Law Review

No abstract provided.

Lawyers For Government Have Unique Responsibilities And Opportunities To Influence Public Policy, Frederick A.O. Schwarz Jr.

NYLS Law Review

No abstract provided.

The Independence Of The Law Department, Jeffrey D. Friedlander

NYLS Law Review

No abstract provided.

Defending The Historian’S Art: A Response To Paul A. Crotty’S Attack On Fighting For The City, William E. Nelson

NYLS Law Review

No abstract provided.

"Anything You Say May Be Used Against You": A Proposed Seminar On The Lawyer’S Duty To Warn Of Confidentiality’S Limits In Today's Post-Enron World, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

In light of recent developments, the confidence that one's communications with a lawyer will remain sacrosanct today may be badly misplaced. This raises important questions concerning the duty of lawyers: When, to what extent, and in what detail, does an attorney communicating with someone who may expect confidentiality, have a duty to explain in advance the circumstances under which the information gained may subsequently be revealed pursuant to these or other confidentiality loopholes? Will the interviewee “clam up” in the face of such Miranda-like warnings? If so, what does this do to the premise of Upjohn and the Model Rule …

Lawfare And Legal Ethics In Guantánamo, David Luban

Georgetown Law Faculty Publications and Other Works

This paper, part of a symposium on the legal profession, focuses on the lawyers – some civilian and some military – who represent detainees at Guantánamo Bay. These include civilian counsel representing Guantánamo prisoners in habeas proceedings, as well as civilian and military defense counsel for those facing trial before military commissions. Using published sources as well as interviews with some of the lawyers, the paper examines the tactics by which the U.S. government has tried to disrupt the effective representation of Guantánamo detainees. In the case of habeas lawyers, whose very presence at Guantánamo is unwelcome by the government, …

Buying Witness Silence: Evidence-Suppressing Settlements And Lawyers' Ethics, Jon Bauer

Faculty Articles and Papers

Lawyers frequently draft settlements that impede other parties' access to relevant evidence through clauses that prohibit the plaintiff from disclosing information to anyone with a claim against the defendant or forbid all discussion of the facts underlying the dispute. This Article argues that lawyers who negotiate these noncooperation agreements violate Rule 3.4(f) of the Model Rules of Professional Conduct, which prohibits requesting someone other than the lawyer's own client to withhold relevant information from another party, and Model Rule 8.4(d), which prohibits conduct prejudicial to the administration of justice. The conventional wisdom among practitioners and legal ethics scholars has been …

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 …

The Inevitability Of Conscience: A Response To My Critics, David Luban

Georgetown Law Faculty Publications and Other Works

This essay by Professor David Luban is written in response to critics of his book, Legal Ethics and Human Dignity.

In part I Professor Luban addresses the primacy that he assigns conscience over the professional role and focuses mainly on the arguments of his critics, Professors Norman Spaulding and W. Bradley Wendel. Part II explores the challenge of pluralism, replying primarily to Professors Katherine Kruse, Spaulding, and Wendel. Part III, in response to Professors Kruse and William Simon, elaborates on the concept of human dignity. Part IV discusses institutions and ethics, focusing on Professors Susan Carle and Simon. The …

International Legal Practice Involving England And New York Following Adoption Of The United Kingdom Legal Services Act Of 2007, Sydney M. Cone Iii.

Articles & Chapters

This article deals with the regulation of legal services in England and New York in the context of, first, multidisciplinary practice ("MDP")1 and, second, permitted investment in legal practice. The article summarizes both the background of and potential differences between the regulations in those two jurisdictions, and comments on the possible reconciliation of those differences. Because, chronologically, New York was the first of the two jurisdictions under consideration to adopt rules on MDP, the New York rules will be considered first, and the more recent statute, known as the United Kingdom Legal Services Act 2007 2(hereinafter "U.K. Act"), will then …

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 …

Adr - Appropriate Disaster Recovery, Michael Tsur

Cardozo Journal of Conflict Resolution

The legal system may be as old as society itself. Since the dawn of civilization, man has incorporated law and judgment as primary tools to help regulate both civil and criminal aspects of social life. Both ancient and modern societies are often historically evaluated by the structure and quality of their legislative and judicial systems. People seem to have been caught in dispute ever since they began living together and effective dispute resolution was necessary for fundamental social structure and order.

Technology Mediated Dispute Resolution Can Improve The Registry Of Interpreters For The Deaf Ethical Practices System: The Deaf Community Is Well Prepared And Can Lead By Example, David Allen Larson, Paula Gajewski Mickelson

Cardozo Journal of Conflict Resolution

This article examines the mediation process within the Registry of Interpreters for the Deaf Ethical Practices System and suggests when and how technology may be utilized to enhance that process. Background information regarding the interpreting profession, the Deaf Community, and the process for filing and reviewing grievances will provide a context for this discussion. An overview of the technologies already being used within the Deaf Community and interpreting field will help to determine where new technologies can be introduced most effectively. Each of the three steps in the EPS will be analyzed to assess how additional technologies can be integrated …

On The Trail To Increased Client Protection: Attorney Contingent Fee Contract Termination In Light Of Hoover V. Walton Recent Development., Tiffanie S. Clausewitz

St. Mary's Law Journal

Abstract Forthcoming.

Assault Upon The Citadel Of Privity: The Coexistence Of Strict, Privity And Belt V. Oppenheimer, Blend, Harrison & (And) Tate, Inc. Comment., C. John Muller Iv

St. Mary's Law Journal

The practicing attorney must have a complete understanding of legal malpractice liability. Managing this risk can be a precarious responsibility when the law is not clearly defined. This is compounded by the steady erosion of attorney-client privity barriers making it easier for third party non-clients to sue lawyers for legal malpractice. This is the current state of matters in Texas since the Texas Supreme Court decided Belt v. Oppenheimer, Blend, Harrison & Tate, Inc. on May 5, 2006. The Belt court determined personal representatives of an estate may bring a malpractice claim against the decedent’s attorneys. The Belt court was …

Mandatory Legal Education Is A Step In The Right Direction, Richard Devlin, Jocelyn Downie

Articles, Book Chapters, & Popular Press

For decades, and from sea to sea to sea, many Canadian lawyers have resisted and ridiculed mandatory continuing legal education (MCLE). But the winds of change are blowing from the West.

As of January 2009 all lawyers in British Columbia will be obliged to complete 12 hours of “continuing professional development” per year. While some other provinces have imposed mandatory reporting obligations for CLE, British Columbia is the first to grasp the nettle and make actual participation in CLE mandatory. There are a number of compelling reasons for concluding that this is a very good thing.

The End(S) Of Self Regulation?, Richard Devlin, Porter Heffernan

Articles, Book Chapters, & Popular Press

Self-regulation is a sacred cow of the Canadian legal profession. The authors question this assumption on several levels and ask whether, in a liberal democratic society such as Canada, self-regulation really is in the public interest. The advantages and disadvantages of self-regulation are discussed in the context of other Commonwealth nations who have moved away from this type of regulatory structure. Though the self-regulation debate has been traditionally viewed as a "one way or the other" argument, calibrated regulation seems to be a possibility in Canada and, in fact, steps have already been taken in this direction. Devlin and Heffernan …

Who's Minding The Shop? The Role Of Canadian Research Ethics Boards In The Creation And Uses Of Registries And Biobanks, Elaine Gibson, Kevin Brazil, Michael Coughlin, Claudia Emerson, François Fournier, Lisa Schwartz, Karen Szala-Meneok, Karen Weisbaum, Donald Willison

Articles, Book Chapters, & Popular Press

Background: The amount of research utilizing health information has increased dramatically over the last ten years. Many institutions have extensive biobank holdings collected over a number of years for clinical and teaching purposes, but are uncertain as to the proper circumstances in which to permit research uses of these samples. Research Ethics Boards (REBs) in Canada and elsewhere in the world are grappling with these issues, but lack clear guidance regarding their role in the creation of and access to registries and biobanks.

Methods: Chairs of 34 REBS and/or REB Administrators affiliated with Faculties of Medicine in Canadian universities were …

The Therapeutic Misconception: A Threat To Valid Parental Consent For Paediatric Neuroimaging Research, Michael Hadskis, Nuala Kenny, Jocelyn Downie, Matthias Schmidt, Ryan D'Arcy

Articles, Book Chapters, & Popular Press

Neuroimaging research has brought major advances to child health and well-being. However, because of the vulnerabilities associated with neurological and developmental conditions, the parental need for hope, and the expectation of parents that new medical advances can benefit their child, pediatric neuroimaging research presents significant challenges to the general problem of consent in the context of research involving children. A particular challenge in this domain is created by the presence of therapeutic misconception on the part of parents and other key research stakeholders. This article reviews the concept of therapeutic misconception and its role in pediatric neuroimaging research. It argues …

Relational Theory And Health Law And Policy, Jennifer Llewellyn, Jocelyn Downie

Articles, Book Chapters, & Popular Press

Relational theory starts from an understanding of human selves as relational. This theory informs some significant current developments in the areas of philosophy, ethics and legal theory that re-envision key concepts including autonomy, equality, rights, justice, memory, trust, judgment and identity. In this paper we introduce relational theory and begin to explore some of its implications for health law and policy. In doing so, we hope to show the relevance of each field to the other and to persuade those interested in health law and policy to take up the challenge to pursue the transformative potential of relational theory through …

View From The Ivory Tower: Musings Of A Former Family Lawyer, David Spratt

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Structure And Integrity, Susan Carle

Scholarly Articles in Law Reviews & Journals

In this Review Essay of David Luban's Legal Ethics and Human Dignity, I argue that although Professor Luban has not had much to say until now about "structural" concerns - namely, how lawyers' locations within institutions that organize access to power shape or should shape those lawyers' conduct - in his most recent work, another approach slips in as a supplement to his individualist framework. In this emerging supplement, structural concerns become increasingly important. Although individual integrity continues to matter most in Professor Luban's world view, it increasingly matters in the context of structural relations in which lawyers' ethical duties …

My Brethren’S (Gate) Keeper? Testimony By U.S. Judges At Others’ Supreme Court Confirmation Hearings: Its Implications For Judicial Independence And Judicial Ethics, Mary Clark

Scholarly Articles in Law Reviews & Journals

This article, prompted by the testimony of seven of Samuel Alito's then-current and former Third Circuit colleagues at his hearing to be Associate Justice of the United States Supreme Court, examines the merits of federal judges testifying at others' Supreme Court confirmation hearings. While mindful of other approaches to the question of judicial participation in other judicial appointments systems and of their comparative advantages and disadvantages, the author nevertheless concludes that judges threaten judicial independence and judicial ethics principles when they exercise power in the Article III appointments realm. It is not so much a question of judges usurping the …

Final Report Of The Experts Committee For Human Research Participant Protection In Canada, Jocelyn Downie

Reports & Public Policy Documents

The Experts Committee for Human Research Participant Protection in Canada presents herewith its final report and recommendations concerning the development of a new comprehensive system in Canada. The final report is the product of some twenty months work. Beginning in September, 2006 and ending February, 2007 the Committee held monthly face-to-face meetings which it supplemented by conference calls and the circulation of draft texts by various members. During the course of its work, the Committee assessed the concerns that had been raised about the existing Canadian governance arrangements and then examined alternative models that might serve to deal effectively with …

Disaster Planning: What We Have (And Haven't) Learned, Gary A. Munneke

Elisabeth Haub School of Law Faculty Publications

Basic disaster planning is not only cost-effective but relatively easy to integrate with other planning activities. By looking at the experiences of lawyers and law firms that have survived disasters in recent years, it is possible to gain insights that will help us overcome such adversity. Transactional business lawyers, whose clients are frequently the victims of the same forces that harm lawyers, have a special obligation to serve these clients in times of crisis in order to restore these businesses to functionality and commerce to the community at large.

Impartiality In Judicial Ethics: A Jurisprudential Analysis, W. Bradley Wendel

Cornell Law Faculty Publications

No abstract provided.

Thinking About Leaving? The Ethics Of Departing One Firm For Another, John P. Sahl

Akron Law Faculty Publications

This article examines the ethical and professional responsibilities of lawyers who are considering leaving one law firm to join another. John P. Sahl explores the legal and ethical implications surrounding client notification, client choice, conflicts of interest, and the handling of firm property and confidential information. The piece offers guidance on how to navigate the delicate balance between the departing lawyer’s rights and duties, the interests of the law firm, and the paramount concern for clients’ rights. Drawing from case law, ethics opinions, and professional conduct rules, the article highlights best practices for minimizing disputes and protecting all parties during …