Legal Ethics and Professional Responsibility Commons^™

Jury Nullification: What It Is And How To Do It Ethically, Monroe H. Freedman

Hofstra Law Review

The article discusses the concept of jury nullification (JN) in America as of 2014, and it presents practical advice for U.S. attorneys on how to use the JN process in an ethical manner. The U.S. Supreme Court determined in the 1895 case Sparf v. United States that jurors, who have the power to nullify the law in rendering a general verdict, can also be kept ignorant of their power of nullification. U.S. constitutional laws and several other JN cases are examined.

Ethics Consultations And Conflict Engagement In Health Care, Charity Scott

Faculty Publications By Year

This article explores the intersection of two professional fields - bioethics and clinical ethics consultation in health care on one hand, and alternative dispute resolution ("ADR") and conflict management on the other - which until recent years remained relatively unknown to each other. It marries the literatures and lessons of these two fields in order to promote the quality of ethics consultations in hospitals and other health care organizations. * Increasingly, health care ethics committees and consultants acknowledge the need to employ the frameworks, approaches, and tools of good conflict management to do their work effectively. Similarly, conflict specialists and …

The Cure For Young Prosecutors' Syndrome, Ronald F. Wright, Kay L. Levine

Faculty Articles

Although legal scholars treat prosecutors like interchangeable parts, we argue—based on interviews and surveys of over 200 state prosecutors in eight offices—that scholars should be alert to the differences among them, because new prosecutors experience their professional role differently than their veteran colleagues do. This divergence happens because, as new prosecutors gain experience, their professional identities shift—they become more balanced over time. This Article explores the prosecutor’s professional transformation and the possible catalysts for that change.

When experienced prosecutors describe their career trajectories, they regret the highly adversarial posture they adopted earlier in their careers. While the constant quest for …

Dating Violence On Small Rural College Campuses: Are Administrator And Student Perceptions Similar?, Jean Allen Oldham

Theses and Dissertations--Kinesiology and Health Promotion

In recent years dating violence has become more and more prevalent on college campuses. Reports of the range of dating violence vary widely, with studies reporting from 20% to 85% of college women experiencing dating violence. However, almost all research has been conducted among urban and/or large colleges and universities, with virtually no attention to what is happening on small and/or rural college and university campuses.

When a possible 20% of college women have experienced dating violence on college campuses, there becomes a crucial need for administration at a college to have an accurate assessment of the college’s liability, and …

Biased? Prove It: Addressing Arbitrator Bias And The Merits Of Implementing Broad Disclosure Standards, Lindsay Melworm

Cardozo Journal of International and Comparative Law

The note examines the varying disclosure requirements for arbitrators in the United States and internationally, focusing on the standards for determining when an arbitral award may be vacated due to arbitrator partiality or bias. It highlights the tension between ensuring impartiality and maintaining the finality of arbitration decisions, advocating for broad initial disclosures to uphold the integrity and fairness of the process while preserving party autonomy.

"Nudging" Better Lawyer Behavior: Using Default Rules And Incentives To Change Behavior In Law Firms, Nancy B. Rapoport

Scholarly Works

This article examines how incentives in law firms can affect lawyer behavior and suggests some possible changes to incentive structures and default rules that might improve the ethical behavior of lawyers.

In the changing landscape of law practice — where law firm profits are threatened by such changes as increased pressure from clients to economize and the concomitant opportunities for clients to shop around for the most efficient lawyers — are there ways to change how things are done in law firms so that firms can provide more efficient and ethical service? This article suggests that an understanding of cognitive …

The Client Who Did Too Much, Nancy B. Rapoport

Scholarly Works

Using Hitchcock's MacGuffin as a theme, I discuss the dynamics between client and lawyer when the client so obsesses over the issue driving him that he persuades (or attempts to persuade) the lawyer to do things that are inadvisable from the lawyer's point of view.

Giving Thanks: The Ethics Of Grateful Patient Fundraising, Stacey A. Tovino

Scholarly Works

Grateful patient fundraising, defined as the solicitation of philanthropic donations by health care providers from current and former patients, raises a number of legal and ethical issues. Elsewhere, I detailed the confidentiality issues raised by the use and disclosure of patient identifiable information by hospital development officers, major gifts officers, institutionally-related foundations, and commercial fundraisers, and proposed corrections to federal health information confidentiality regulations to better balance the competing aims of health care philanthropy and health information confidentiality. In this Article, I analyze several outstanding issues raised by physician involvement in grateful patient fundraising. That is, physicians who solicit philanthropic …

Silence Is Golden . . . Except In Health Care Philanthropy, Stacey A. Tovino

Scholarly Works

No abstract provided.

Serving Those Who Served, Edward G. Simpson, Iii, Gregory L. Collins

Law Student Publications

Forward from Richmond Journal of Law and the Public Interest, Vol. XVII, regarding the Department of Veterans Affairs (VA). Despite the VA's massive budget and our country's growing veteran population, many veterans' issues are not being adequately addressed, and the legal needs of our veterans require our increased attention.

Tax Advisors And Conflicted Citizens, Milton C. Regan

Georgetown Law Faculty Publications and Other Works

Thousands of lawyers are involved every day in advising clients outside of litigation. These lawyers counsel clients on how they can benefit from or avoid violating statutes, regulations, and other sources of law. How should we think about the obligations of the lawyer in this setting? This article argues that we should eschew a single prescriptive model of the advisor in favor of a pluralistic conception that bases responsibilities on the salient factors of the context in which the advisor operates.

The model of the advocate that suggests that the lawyer take a relatively aggressive approach to interpreting the legal …

Why Lawyers Do What They Do (When Behaving Ethically), James Moliterno, John Keyser

St. Mary's Journal on Legal Malpractice & Ethics

Since the early 1990s, when David Wilkins published his influential paper “Who Should Govern Lawyers” in the Harvard Law Review, legal ethics scholars and professors have paid attention to the range of processes and devices that govern lawyer behavior. This Article will report on the results of a study currently underway that seeks to provide empirical evidence to answer the question posed in this Article’s title: Do lawyers train staff in confidentiality preservation because they fear bar discipline? Because they fear malpractice liability? Because they must comply with malpractice liability carrier demands? Because they honor client confidences for their own …

The Role Of Ethics Audits In Improving Management Systems And Practices: An Empirical Examination Of Management-Based Regulation Of Law Firms, Susan Saab Fortney

St. Mary's Journal on Legal Malpractice & Ethics

For decades, legal malpractice experts have urged lawyers to implement risk management measures. To assist law firms in doing so, legal malpractice insurers have provided audit services and self-audit materials. Under the Australian regulatory regime, incorporated legal practices are required to complete a self-assessment process and to report on the firm’s compliance with ten objectives of sound law practice. Using management-based principles, this Article discusses steps to take to encourage ethics audits “to merge good ethics and good business” in the U.S.

Is Litigation Counsel Who Also Engages In Competitive Decision-Making Wrong For The Part?, David Hricik

St. Mary's Journal on Legal Malpractice & Ethics

In-house counsel wear different hats, and are often involved in business decisions regarding products, marketing, and other strategic issues. It was in this context that courts began to adopt protective orders that precluded in-house counsel who provided their clients advice with “competitive decision-making” from having access to information from a competitor disclosed in discovery. Prosecution bars present numerous issues for courts and counsel. It may be that because of prosecution counsel’s knowledge of the technology that her service as trial counsel would lead to cost savings and other benefits to her client. However, due to the myriad problems that arise …

Navigating The Pitfalls Of Implicit Bias: A Cognitive Science Primer For Civil Litigators, Nicole E. Negowetti

St. Mary's Journal on Legal Malpractice & Ethics

Cognitive science has revealed that past experiences and prior assumptions, even those of which we are not conscious, greatly influence how humans perceive the world. Emerging research has demonstrated that attorneys and judges, like everyone else, are the products of their gender, ethnicity, race, and socioeconomic status. As a consequence, legal decision-making is susceptible to the subtle influences of implicit bias. Effective and ethical client advocacy requires an attorney to understand how her own implicit biases will affect her interactions with clients. An attorney should also acknowledge that implicit biases may affect a judge’s interpretation of her client’s story and …

The Corporate Attorney As “Internal” Gatekeeper And The In Pari Delicto Defense: A Proposed New Standard, Kevin H. Michels

St. Mary's Journal on Legal Malpractice & Ethics

This Article begins by proposing a distinction between the corporate lawyer’s “internal” and “external” gatekeeping role in order to focus on the special challenge posed by the former. As internal gatekeeper, the corporation lawyer is charged with the restraint of the corporation’s executives and other employees to prevent harm to the lawyer’s corporation client. The external gatekeeper, by contrast, restrains the client to prevent harm to third parties. While each gatekeeping role presents challenges in defining the duties and liability of attorneys, the internal-gatekeeping role is subject to a special defense that can insulate attorneys from liability. Attorneys can interpose …

Disqualifying Defense Counsel: The Curse Of The Sixth Amendment, Keith Swisher

St. Mary's Journal on Legal Malpractice & Ethics

Lawyer disqualification—the process of ejecting a conflicted lawyer, firm, or agency from a case—is fairly routine and well-mapped in civil litigation. In criminal cases, however, there is an added ingredient: the Sixth Amendment. Gideon, which is celebrating its fiftieth anniversary, effectively added this ingredient to disqualification analysis involving indigent state defendants although it already existed in essence for both federal defendants and defendants with the wherewithal to retain counsel. Once a defendant is entitled to counsel, the many questions that follow include whether and to what extent conflicts of interest—or other misconduct—render that counsel constitutionally ineffective. Most cases and commentary …

“Payability” As The Logical Corollary To “Collectibility” In Legal Malpractice, Daniel D. Tostrud

St. Mary's Journal on Legal Malpractice & Ethics

The collectibility requirement as part of the legal malpractice plaintiff’s affirmative case is well-established and regarded by most courts as a critical part of the plaintiff’s proof of proximate causation. Conversely, where the legal malpractice plaintiff was the defendant in the underlying lawsuit, to be successful in the malpractice suit, the plaintiff must prove that it had a meritorious defense that would have made a difference to the outcome of the case had the lawyer properly asserted and pursued the defense. Prompted by the conflicting opinions of two federal courts on this issue, courts have begun to discuss whether the …

Online Legal Advice: Ethics In The Digital Age, Paige A. Thomas

St. Mary's Journal on Legal Malpractice & Ethics

The rise of the Internet changed the way initial interactions between lawyers and prospective clients happen. Unfortunately, a host of problems concerning privacy rights and consumer usage have emerged. In this digital age, where immediacy and response time are driving factors in an attorney’s online presence, the approach to establish an attorney-client relationship is far more informal. Due to the quick rise of the Internet and social media, the Model Rules of Professional Conduct do not offer a clear answer for attorneys using social media. An inherent danger lies in off-the-cuff remarks, made on the Internet—a platform generally associated with …

Intra Law Firm Communications Regarding Questionable Attorney Conduct., Evan King, Jeffrey A. Parness

St. Mary's Journal on Legal Malpractice & Ethics

When questions are raised regarding a law firm attorney's representation of a firm client, the questioned attorney often wishes to seek legal counsel. A conferral will often benefit the attorney, the firm, and the client. Conferences regarding questioned conduct should be encouraged, not discouraged. To encourage these beneficial conferrals, a broad attorney-client communication privilege and a broad work-product protection (or privilege) should be available. Availability should not be dependent upon whether in-house, outside, or other legal counsel is employed. While earlier federal precedents were split regarding the availability of the attorney-client communication privilege in the in-house counsel setting, increasingly therein …

The Agony Of Modern Legal Ethics, 1970-1985., Michael Ariens

St. Mary's Journal on Legal Malpractice & Ethics

When the American Bar Association (ABA) adopted its Code of Professional Responsibility at its annual meeting in August 1969, the American legal profession was a publicly respected and economically vibrant body. Lawyers, though always more feared than loved, became increasingly important in post-World War II America. The demand for their services exploded for a quarter-century, and lawyers assumed an increased role in the economic and political life of the United States. During the 1950s and early 1960s, the Cold War led American lawyers and other public figures to re-emphasize the rule of law as defining the difference between the United …

Avoid Being A Defendant: Estate Planning Malpractice And Ethical Concerns., Gerry W. Beyer

St. Mary's Journal on Legal Malpractice & Ethics

An estate planner may become a defendant in a case involving an estate he or she planned in two main ways. First, the attorney may have performed his or her services in a negligent manner potentially creating exposure to malpractice liability. Second, the attorney's conduct may have lapsed below ethically acceptable standards. This Article reviews the exposure an estate planner may have to malpractice liability with emphasis on Texas law and then focuses the reader's attention on ethical issues that may arise while preparing or executing the plan. The author hopes that by pointing out potentially troublesome areas, the reader …

Characterizing Ghostwriting., Debra Lyn Bassett

St. Mary's Journal on Legal Malpractice & Ethics

It is well known that legal services are costly and that existing pro bono services are inadequate to help every individual who would benefit from legal assistance. Compounding this unmet need are various restrictions on the types of clients and types of cases that qualify for pro bono services. For example, Legal Services Corporation lawyers may not represent undocumented individuals, and may not undertake a representation in an abortion, desegregation, or assisted suicide matter. One attempt to mitigate this unmet need is ghostwriting. Analogous to presidential speechwriting, ghostwriting in the legal context occurs when a lawyer drafts a pleading or …

Controversial Defenses To Legal Malpractice Claims: Are Attorney-Experts Being Asked To Be Advocates?, David S. Caudill

St. Mary's Journal on Legal Malpractice & Ethics

Attorney-experts in legal malpractice litigation are like many other experts. Although easily distinguishable from experts offering science based testimony, attorney expertise is similar to that of witnesses offering experience-based testimony, and very much like the expertise of a physician in a medical malpractice case. An attorney-expert is, however, somewhat unique among experts in terms of the type of expertise offered, the inherent risk that the expert's testimony will invade the province of the judge or jury, and, I believe, the risk of over-testifying. First, there is a problem of defining the attorney-expert's "expertise" to ensure that the expert is not …

A Professional (Lack Of) Courtesy: The Emergence Of Expert Testimony In Legal And Medical Malpractice Cases., Jeffrey I.H. Soffer

St. Mary's Journal on Legal Malpractice & Ethics

This Article investigates the role of expert testimony in legal malpractice and medical malpractice cases; analyzing similarities and differences between the two and the evolution of case law in this context. The Article also examines numerous challenges potential expert witnesses face, including harsh backlash from their colleagues and repercussions from their professional organizations. Finally, the Article discusses the future of the legal malpractice and medical malpractice landscape as it pertains to expert testimony and what we should look for moving forward.

Is My Case Mandamusable: A Guide To The Current State Of Texas Mandamus Law., Marialyn Barnard, Lorien Whyte, Emmanuel Garcia

St. Mary's Law Journal

It is important for all Texas lawyers to be knowledgeable about mandamus relief. Unfortunately, there is no bright line rule in terms of mandamus relief. The general rule for when mandamus relief may be granted is when the trial court clearly abused its discretion, and there is not an adequate remedy available from a court of appeals. A clear of abuse of discretion is determined if no other trial court would have come to the same conclusion. In deciding if mandamus relief is proper, appellate courts apply a balancing test. The appellate court considers several factors including: preserving relator’s substantive …

The Computer Fraud And Abuse Act: An Attractive But Risky Alternative To Texas Trade Secret Law., Paul Hanna, Matthew Leal

St. Mary's Law Journal

Abstract Forthcoming.

Mandamus Review Of The Granting Of The Motion For New Trial: Lost In The Thicket., Richard E. Flint

St. Mary's Law Journal

A trial court’s broad discretion in granting a new trial has been one of the mainstays of Texas jurisprudence since early statehood. Historically, this discretion was not subject to review through the ordinary appellate processes. This principle remains inviolate today, as the granting of a new trial is an interlocutory order from which the appellate courts of Texas do not have jurisdiction. Furthermore, the use of an original mandamus proceeding to compel a trial court to set aside the granting of a new trial has had only limited application. However, in response to the case of In re Columbia Medical …

A Guide To Properly Using And Responding To Requests For Admission Under The Texas Discovery Rules., Robert K. Wise, Katherine Hendler

St. Mary's Law Journal

This article’s purpose is to provide a guide for properly using and responding to requests for admission under the Texas discovery rules. Requests for admission are an extremely effective discovery tool when used and responded to properly. Their use can save litigants considerable time and expense by eliminating and narrowing the issues involved in the cause of action. Often misunderstood, requests for admission are perhaps the least used of the major discovery devices available to litigants. Even though requests for admission have the potential to eliminate unnecessary proof at trial, streamline discovery and motion practice, and reduce pretrial and trial …

A Statute Overtaken By Time: The Need To Reinterpret Federal Rule Of Evidence 803(8)(A)(Iii) Governing The Admissibility Of Expert Opinions In Government Investigative Reports., Edward J. Imwinkelried

St. Mary's Law Journal

Abstract Forthcoming.