Legal Ethics and Professional Responsibility Commons^™

Lessons In Legal Ethics From Reading About The Life Of Lincoln, Eugene R. Gaetke

Law Faculty Scholarly Articles

Abraham Lincoln is an icon of American history. He is prominently named in various opinion polls as among the best Presidents in the history of the United States. His stature as a great President is perhaps best reflected currently in the stream of events constituting a national two-year celebration of his 1809 birth. Even before that, however, scholarly and popular interest and Lincoln’s life and Presidency continued unabated, as indicated by the steady publication and success of books about him. Notable among these works is David Herbert Donald’s best-selling biography of our sixteenth President titled Lincoln.

Although Mr. Donald’s …

Recognizing The "Bad Barrel" In Public Business Firms: Social And Organizational Factors In Misconduct By Senior Decision-Makers, James A. Fanto

Buffalo Law Review

No abstract provided.

The Corporate Lawyer's Role In A Contemporary Democracy, Colin Marks, Nancy B. Rapoport

Scholarly Works

This paper reviews the traditional arguments for corporate social responsibility and asks the question of what corporate lawyers should do to help their clients do the right thing ethically. It also sets out a test - the technically test -- that highlights when something is usually on the wrong side of the ethical line. (If you have to give legal advice starting with "Well, technically...," you're on the wrong side of the line.)

Neuroscience And Health Law: An Integrative Approach?, Stacey A. Tovino

Scholarly Works

Neuroscience is one of the fastest growing scientific fields in terms of the numbers of scientists and the knowledge being gained. In recent years, both the scope of neuroscience and the methodologies employed by nueroscientists have broadly expanded, from biochemical and genetic analysis of individal nerve cells and their molecular constituents, to the recent neuroscientific achievement in the ability of neuroimaging technoloiges, including funtional magnetic resonance imaging (fMRI), to image brain function. Clinicans and scientists use fMRI not only to map sensory, motor, and cognitive function, but also to study the neural correlates of a range of physical and mental …

Lessons From Enron - And Why We Don't Learn From Them, Nancy B. Rapoport

Scholarly Works

This article discusses why even the smartest of people can make boneheaded decisions, and it suggests that the only way to avoid future Enrons is to take into account the cognitive mistakes that humans tend to make.

The Real Reason Why Businesses Make Bad Decisions, Nancy B. Rapoport

Scholarly Works

This book review examines Professor Jonathan Macey's latest book on corporate governance, and it uses Professor Macey's analysis to explain the latest rash of corporate scandals.

Swimming With Shark, Nancy B. Rapoport

Scholarly Works

In this essay, Nancy Rapoport discusses how Sebastian Stark (played by James Woods) seduces the lawyers on his legal team into ignoring legal ethics in favor of Stark's own version of ethics. Stark -- a criminal defense lawyer who becomes a deputy district attorney -- bends the ethics rules past the breaking point in order to put bad guys behind bars. His team of lawyers knows right from wrong but follows Stark's lead in breaking the rules anyway.

Bisexuals Need Not Apply: A Comparative Appraisal Of Refugee Law And Policy In Canada, The United States, And Australia, Sean Rehaag

Articles & Book Chapters

This paper offers an analysis of refugee claims on grounds of bisexuality. After discussing the grounds on which sexual minorities may qualify for refugee status under international refugee law, the paper empirically assesses the success rates of bisexual refugee claimants in three major host states: Canada, the United States, and Australia. It concludes that bisexuals are significantly less successful than other sexual minority groups in obtaining refugee status in those countries. Through an examination of selected published decisions involving bisexual refugee claimants, the author identifies two main areas for concern that may partly account for the difficulties that bisexual refugee …

The Niesig And Nlra Union: A Revised Standard For Identifying High-Level Employees For Ex Parte Interviews, Bran C. Noonan

NYLS Law Review

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.

Plea To The Jurisdiction: Defining The Undefined., Rebecca Simmons, Suzette Kinder Patton

St. Mary's Law Journal

Pleas to the jurisdiction have been part of Texas jurisprudence since shortly after Texas became a state. The resulting confusion over the procedure and standards to be employed in resolving a plea was partially alleviated by the Texas Supreme Court’s decision in Texas Department of Parks and Wildlife v. Miranda. From a number of reports from Texas’s reviewing courts, however, it is evident the courts continue to struggle with the plea. Currently there are no established procedural rules to assist with the resolution of a plea to the jurisdiction. Thus, procedures vary from court to court and case to case. …

Loyalty In Limbo: The Peculiar Case Of Attorneys' Loyalty To Clients., Eli Wald

St. Mary's Law Journal

Attorney loyalty to clients is considered a cornerstone of the attorney-client relationship. Yet, loyalty is underexplored, misunderstood, and the subject of heated discord. Advocates of client-centered loyalty and their opponents both fail to provide a compelling accounting of loyalty to clients and its consequences. Leaving loyalty in limbo is an unacceptable state of affairs. The legal profession bears the continuous burden of accounting for its own practices. Because the Bar cannot assert broad client-centered loyalty as self-explanatory, the burden of disproving loyalty shifts to the critics. Critics of broad loyalty to clients are not helping advance the discourse by advocating …

Business Lawyers As Enterprise Architects, George W. Dent

Faculty Publications

In 1984 Ronald Gilson published Value Creation by Business Lawyers: Legal Skills and Asset Pricing. It began: "What do business lawyers really do? Embarrassingly enough, at a time when lawyers are criticized with increasing frequency as nonproductive actors in the economy, there seems to be no coherent answer." He dismissed lawyers' own answer that "they 'protect' their clients, that they get their clients the 'best' deal." He also rejected the academic literature which offered a laundry list of roles the business lawyer plays: "a counselor, planner, drafter, negotiator, investigator, lobbyist, scapegoat, champion, and, most strikingly, even as a friend." Dissecting …

Professionalism’S Triple E Query: Is Legal Academia Enhancing, Eluding, Or Evading Professionalism?, Nicola A. Boothe-Perry

Journal Publications

The focus of this Article will be law schools' specific role and responsibility in the propaedeutic instruction of professionalism in the legal community. This article is composed of five sections. Part II of this paper discusses the ubiquitous yet illusory definition of professionalism. Part III addresses the practicing bar's approach to the issue of professionalism, reflecting in Subsection A on the public's perception of lawyers, and discussing in Subsection B the response of the governing bodies to such perception. Part IV highlights the role of legal education in fostering professionalism, discussing in Subsection A the fertile ground for change in …

2009 Ethical Considerations In Land Use, Patricia E. Salkin

Scholarly Works

This article is one in a series of annual updates on reported cases and opinions in the area of ethics and land use regulation, A number of themes emerged from the round of litigation in the last year. The most surprising discovery was for a second year in a row, the number of reported cases involving allegations of unethical conduct on the part of land use attorneys. This article reviews these cases, as well as cases involving conflicts based on community involvement, familial relationships, employment and financial interests; and cases involving allegations of bias and prejudgment.

Preserving Attorney-Client Privilege In The Age Of Electronic Discovery, Anthony Francis Bruno

NYLS Law Review

No abstract provided.

United States V. Leveto, Jennifer Steward

NYLS Law Review

No abstract provided.

The Bapcoa's Restriction On Attorney-Client Speech In The Fifth And Eighth Circuits: Worth Saving Or Destroying Comment., Sara Berkeley

St. Mary's Law Journal

Abstract Forthcoming.

Guardians At The Gate: The Backgrounds, Career Paths, And Professional Development Of Private Us Immigration Lawyers, Leslie Levin

Faculty Articles and Papers

No abstract provided.

Globalization And Corporate Social Responsibility: Challenges For The Academy, Future Lawyers, And Corporate Law, Faith Stevelman

Articles & Chapters

Changes in information technology, in combination with changing popular and political opinion (including concern over climate change) are moving the subject of corporate social responsibility ('CSR') to the forefront of policy reform, consumer and investor behavior, and graduate business education. Nevertheless, up to the present, CSR has not thrived within law schools’ curricula, or mainstream graduate or undergraduate programs. First, the subject is too synthetic to fit neatly within the core, established framework of academic subject areas (e.g. history, economics, sociology and management), or law schools’ conventional teaching of corporate, securities, employment, administrative, or environmental law. CSR is relevant to …

Achieving An Appropriate Balance: The Use Of Counsel Sanctions In Connection With The Resolution Of E-Discovery Misconduct, Thomas Y. Allman

Richmond Journal of Law & Technology

This article evaluates the increased use of counsel sanctions in connection with discovery misconduct in the federal courts. Decisions such as Qualcomm Inc. v. Broadcom Corp. (Qualcomm) have drawn attention to the affirmative responsibilities of counsel for discovery and the ample authority available to sanction them under appropriate circumstances.

Reframing The Independence V. Accountability Debate: Defining Judicial Structure In Light Of Judges' Courage And Integrity, David Pimentel

Cleveland State Law Review

The perennial debate over striking the right balance between judicial independence and judicial accountability largely misses the mark. The tension between these concepts arises only in the structural sense of the terms, i.e. the conflict lies in the structural approaches traditionally taken to protect independence and to enforce accountability. In actuality, our primary concern should be the judge's own sense of independence and her internal sense of accountability. These more subjective concepts--which may be termed “judicial courage” (for the judge who is willing to act independently) and “judicial integrity” (for the judge who is willing to hold herself accountable)--do not …

Bioethics And Self-Governance: The Lessons Of The Universal Declaration On Bioethics And Human Rights, O. Carter Snead

Journal Articles

The following article analyzes the process of conception, elaboration, and adoption of the Universal Declaration of Bioethics and Human Rights, and reflects on the lessons it might hold for public bioethics on the international level. The author was involved in the process at a variety of levels: he provided advice to the IBC on behalf of the President's Council of Bioethics; he served as the U.S. representative to UNESCO's Intergovernmental Bioethics Committee; and led the U.S. Delegation in the multilateral negotiation of Government experts that culminated in the adoption of the declaration in its final form. The author is currently …

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 …

Lawyering In The Academy: The Intersection Of Academic Freedom And Professional Responsibility, Peter A. Joy

Scholarship@WashULaw

The legal academy has given little thought to how practicing law within law schools affects professional responsibilities and is different from representing clients in a traditional law firm or how notions of academic freedom affect lawyering in law schools. Yet repeated attempts to interfere with law clinic representation starkly illustrate how lawyering in the academy might be different, under notions of professional responsibility and academic freedom, from other lawyering or typical law teaching.

Scholarship on interference in clinical programs has focused primarily on the impropriety of interference on the institutional autonomy of law schools by those outside the university, such …

Advocacy In The Court Of Public Opinion, Installment One: Broadening The Role Of Corporate Attorneys, Michele Destefano Beardslee

Articles

No abstract provided.

Regulating Conflicts Of Interest In Research: The Paper Tiger Needs Real Teeth, Jesse A. Goldner J.D.

All Faculty Scholarship

This article describes the current state of the regulation of financial conflicts of interest in research in the United States. It notes the implications of the changing academic and private research environment and reviews recent empirical research on (1) the perceived implications of such conflicts on clinician and researcher behavior, and (2) the effect of disclosure of such conflicts to potential research participants. The article also details a number of widely publicized research “scandals” involving conflicts of interest and the effects these may have on both public support for research as well as on the quality of care that ultimately …

Reflections On Recommendation 12, Naiomi Metallic

Reports & Public Policy Documents

This article focuses on the Marshall Commission Report’s specific recommendation for increased representation of racialized persons within the judiciary.

Could Government Speech Endorsing A Higher Law Resolve The Establishment Clause Crisis., Bruce Ledewitz

St. Mary's Law Journal

The Establishment Clause crisis exists due to the Supreme Court’s promise that America would have a secular government—meaning one which was neutral between religion and irreligion, as well as being neutral to all religions. This promise evolved pursuant to the Supreme Court’s interpretation of the Establishment Clause. Nevertheless, the commitment to neutrality was never carried to fulfillment by the Court. The crisis may be illustrated by Congress’ addition of the words “under God” to the Pledge of Allegiance in 1954. This addition seemed to violate the promise of neutrality made by the Supreme Court in Everson v. Board of Education …