Legal Ethics and Professional Responsibility Commons^™

Bridging Rule Of Law Theory And Implementation: The Role Of Professional Ethical Integrity,, Kate Bloch

Faculty Scholarship

No abstract provided.

The Notion And Practice Of Reputation And Professional Identity In Social Networking: From K-12 Through Law School, Roberta Bobbie Studwell

Faculty Scholarship

No abstract provided.

Sampling And Reliability In Class Action Litigation, Hillel J. Bavli

Cardozo Law Review de•novo

In this Article, I explain my conclusions in Aggregating for Accuracy in non-mathematical terms, and underscore certain implications with respect to class action litigation and considerations in light of the U.S. Supreme Court’s recent decision in Tyson Foods, Inc. v. Bouaphakeo. I begin by describing the building blocks of my analysis—the concepts of reliability and accuracy in the law.

Said I, 'But You Have No Choice': Why A Lawyer Must Ethically Honor A Client's Decision About Mental Health Treatment Even If It Is Not What S/He Would Have Chosen, Michael L. Perlin, Naomi M. Weinstein

Cardozo Public Law, Policy & Ethics Journal

The article argues that lawyers representing individuals with mental disabilities have an ethical responsibility to prioritize their clients' expressed preferences and autonomy, rejecting the presumption that substituted decisionmaking is acceptable. It critiques the legal system's reliance on paternalistic approaches and highlights the importance of supported decisionmaking, as mandated by international human rights law, particularly under the Convention on the Rights of Persons with Disabilities (CRPD). The analysis emphasizes the need for legal frameworks and attorney practices to align with therapeutic jurisprudence, which prioritizes psychological well-being and dignity while upholding due process principles.

Introduction, Forrest S. Mosten

Cardozo Journal of Conflict Resolution

This special edition of the Cardozo Journal of Conflict Resolution reflects the current exciting state of the Family Dispute Resolution field, inside and outside of the law school academy. The articles selected for this portion of the issue carry on the vibrant dialogue that took place at the Cardozo Journal of Conflict Resolution's Annual Symposium "All in the Family: Intimate Parties, Intimate Issues and ADR". This Symposium, hosted at the Benjamin N. Cardozo School of Law on October 19, 2015, engaged scholars, practitioners, and students from across the country.

Gender Bias In The Courtroom: Challenges Confronting Women Litigators And Trial Attorneys, Connie Lee

Student Articles and Papers

This paper examines the gender biases that women trial attorneys and litigators confront in the legal profession. Specifically, this paper analyzes how such biases undermine our legal system by attacking principles of fairness and equity and, consequently, jeopardizing the client's opportunity to be heard and access fair court proceedings.

The Rule Of Law And Ethical Integrity: Does Haiti Need A Code Of Legal Ethics?, Kate Bloch, Roxanne Edmond-Dimanche

Faculty Scholarship

No abstract provided.

Disciplinary Regulation Of Prosecutors As A Remedy For Abuses Of Prosecutorial Discretion: A Descriptive And Normative Analysis, Samuel J. Levine, Bruce A. Green

Scholarly Works

Although courts have traditionally relied primarily on prosecutors’ individual self-restraint and institutional self-regulation to curb prosecutors’ excesses and redress their wrongdoing, aspects of prosecutors’ conduct can be regulated externally as well. One potential source of external regulation is professional discipline. As lawyers, prosecutors are regulated by state courts, which oversee processes for disciplining lawyers who engage in misconduct. In responding to prosecutors’ wrongdoing, courts generally express a preference for professional discipline over civil liability, which is limited by principles of absolute and qualified immunity. Likewise, courts favor professional discipline over adjudicatory remedies such as reversal of criminal convictions or suppression …

Duties To Organizational Clients, William H. Simon

Faculty Scholarship

Loyalty to an organizational client means fidelity to the substantive legal structure that constitutes it. Although this principle is not controversial in the abstract, it is commonly ignored in professional discourse and doctrine. This article explains the basic notion of organizational loyalty and identifies some mistaken tendencies in discourse and doctrine, especially the "Managerialist Fallacy" that leads lawyers to conflate the client organization with its senior managers. The article then applies the basic notion to some hard cases, concluding with a critical appraisal of the rationale for confidentiality with organizational clients.

George Zimmerman, Jerry Sandusky, And The Ethics Of Counsel’S Use Of The Media, Wesley M. Oliver, Rebecca L. Silinski

Oklahoma Law Review

The media is both a tool and a temptress for the modern lawyer. With interest in trials increasing, particularly criminal trials, lawyers are frequently invited to become part of the media’s coverage. The media provides lawyers an opportunity to tell their clients’ stories, but it also brings a type of fame to the attorney, which may bias the lawyer’s view of the wisdom of the coverage. The American Bar Association’s (ABA) Model Rules of Professional Conduct (Model Rules) have long recognized that a lawyer’s interest in the literary and media rights to the client’s story potentially compromises the client’s representation. …

Internet Ethics, American Law, And Jewish Law: A Comparative Overview, Samuel J. Levine, Gertrude N. Levine

Scholarly Works

Societies are governed by codes of ethics. In developed societies, parts of these codes form a set of laws, enforceable by legal authorities, with or without assistance from the populace. At times, laws are crafted for the benefit of the powerful members of the society, ensuring preservation of their positions and property, while other constituents may ignore, actively disobey, or challenge laws they believe do not support their ethics. Developing and maintaining appropriate social norms is thus particularly critical for sustaining rapidly changing heterogeneous populaces.

The Internet, devised for the purpose of interconnecting diverse computer networks of research and educational …

The Prosecutor's Duty To "Imperfect" Rape Victims, Tamara Rice Lave

Articles

No abstract provided.

Probable Cause Revisited, William Ortman

Law Faculty Research Publications

No abstract provided.

Representing Children And Youth, Donald N. Duquette, Ann M. Haralambie

Book Chapters

The role of the child's attorney is unique in American jurisprudence and not yet clearly defined by law or tradition. There is an emerging consensus, however, that children in dependency cases should have lawyers and those lawyers should be as active and as involved in their cases as are lawyers for any other party in any other litigation. Although state law and policy makers differ as to what voice the child should have in determining the direction and goals of the litigation, that is, whether the child's lawyer should represent the best interests of the child as determined by the …

The Rise And Fall Of Social Trustee Professionalism, Michael Ariens

Faculty Articles

Elite lawyers have long urged the private practice bar to account for the interests of more than their clients in their work. A lawyer who served merely as a "mouthpiece" or "hired gun" of clients failed to meet the standards of professionalism, of failing to act, in Roscoe Pound's words, "in the spirit of a public service." Pound's view, expressed in the mid-20th century, was premised on the ideal that the lawyer pursued a public calling that incidentally was remunerative. This ideal required the lawyer to serve as a social trustee, one encumbered by duties for the benefit of society. …

Front Matter

Notre Dame Journal of Law, Ethics & Public Policy

Table of Contents

Note, American, Isis, And Social Media: How The Material Support Statute Can Help Combat Against Their Collision, Morgan Stacey

Notre Dame Journal of Law, Ethics & Public Policy

In this Note, I argue that individuals who support ISIS through encouragement and participation in the recruitment process through social media fall into criminal prosecution under the statute, as they have attempted to provide material support, namely personnel, to the foreign terrorist organization. This support of ISIS through social media is not protected First Amendment speech, as the support turns into an attempt to provide personnel or finances to the group. Part I will focus on ISIS as an organization, its history, and its recruitment strategies. It will discuss ISIS's innovative use of social media for recruitment and its dangerously …

Skin In The Game: Why Business Lawsuits Get Third-Party Funded, Radek Goral

Notre Dame Journal of Law, Ethics & Public Policy

The main claim of the paper is that the changing realities of legal practice create lasting attorney-funder alliances. In effect, among a funder, a friendly law firm, and the client circle of such firm, there is not one attorney-client-funder triangle, but many; and they all revolve around the common link between the two repeat players. The emergence of "litigation funding cones" impacts the attorney-client relationship. The paper argues that in third-party funded litigation, the attorney-funder bond, often informal and confidential, may leave represented litigants in a vulnerable position. Such vulnerability is unlikely to be adequately addressed solely by contract. Therefore, …

Note, The Unconstitutionality Of The Computer Fraud And Abuse Act, Michael C. Mikulic

Notre Dame Journal of Law, Ethics & Public Policy

This Note deals with 18 U.S. C. 1030, otherwise known as the Computer Fraud and Abuse Act ("CFAA "). The CFAA is the federal computer hacking statute. This Note discusses the statute's history, purpose, and the recent circuit split regarding its interpretation. There are two ways to interpret the statute: one is broad and the other narrow. The broad interpretation, which many, if not a majority of circuit courts adopt, extends criminal liability to potentially millions of unsuspecting Americans. The approach is wholly unfair and unreasonable. But more than that, this Note argues that the broad interpretation is unconstitutional. There …

Note, Physician-Owned Distributorships, Jennifer Brougham

Notre Dame Journal of Law, Ethics & Public Policy

The physician-owned distributor ("POD") is one example of the various business entities that have materialized. In recent years, a hot debate has ensued over whether PODs are legitimate business arrangements that offer solutions, or instead exacerbate industry challenges and implicate improper conduct. This Note will assess both sides of the debate and take the position that the harms created by the existence of PODs dwarf any potential benefits. PODs create conflicts of interest and are susceptible to abuse, working against the goals of health care reform-improving quality, affordability, and accessibility. Part I of this Note will provide an overview of …

Re-Designing Law And Lawyering For The Information Age, Thomas D. Barton

Notre Dame Journal of Law, Ethics & Public Policy

This Article analyzes the intersection of three aspects of law, lawyering, and Information Age technology and culture, describing how they disrupt and inhibit one another even as they supply possible opportunities for each to grow and innovate. The Article urges that Information Age challenges to traditional legal institutions and thinking become the foundation for reforms to legal systems and individual lawyering. In embracing changes made possible by emerging technology, the Rule of Law may be strengthened globally and the Preventive/Proactive style of lawyering can be re-invigorated. The Article begins by describing the Preventive/Proactive lawyering ("PPL") style, and offers an example …

Panel Introduction

American University Business Law Review

No abstract provided.

The Helping Profession : Can Pro Bono Lawyers Make Sick Children Well?, Lorne Sossin

Articles & Book Chapters

"Can pro bono lawyers make sick children well? Surprisingly, the answer might be yes. Or at least pro bono lawyers can improve patients’ experiences and health outcomes for families caught up in the hospital system. ... a pioneering initiative in Boston to locate legal clinics in hospitals. Word of this experiment reached Pro Bono Law Ontario (PBLO), an organization active in referring hospital cases to lawyers willing to take on pro bono cases. The benefits of coordinating such cases through a hospital-based pro bono clinic were clear, and the Family Legal Health Program, renamed PBLO at SickKids, was born."

The Prosecutor's Ethical Duty To End Mass Incarceration, Angela J. Davis

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Power Of Lawyer Regulators To Increase Client & Public Protection Through Adoption Of A Proactive Regulation System, Laurel S. Terry

Faculty Scholarly Works

This Article focuses on those who regulate U.S. laywers. The Article argues that the lawyers who head regulatory bodies in the United States have the ability to adjust the focus of the regulator for which they work in a way that will increase client and public protection. The Article further argues that it is appropriate for lawyers in these positions to exercise this power and that they should do so. The Article concludes by offering two concrete recommendations.

The first recommendation is that those who are in charge should, upon reflection, adopt a mindset in which they recognize that the …

The Power Of Lawyer Regulators To Increase Client & Public Protection Through Adoption Of A Proactive Regulation System, Laurel Terry

Faculty Scholarly Works

The idea behind this Article is Ben Franklin's statement that "an ounce of prevention is worth a pound of cure." This Article builds on the author's prior articles that argue that one can think about lawyer regulation issues as involving who-what-when-where-why-and-how to regulate issues. This Article addresses the issue of "WHEN" regulation should occur. It argues that regulators should be trying to PREVENT problems, as well as responding AFTER problems occur. This Article is primarily directed toward those who regulate U.S. lawyers. The Article argues that the lawyers who head regulatory bodies in the United States have the ability to …

Trafficking Smuggled Migrants: An Issue Of Vulnerability, Rachel A. Hews

Global Tides

This paper analyzes why the UN’s efforts against the sex trafficking of smuggled migrants, specifically regarding the Palermo and Smuggling Protocols, have been inadequate in preventing migrant smuggling. It concludes that the crime-based focus on prosecution overshadows prevention of the crime and protection of the victims, and that a human rights approach addressing the vulnerability of smuggled migrants would be more effective in reducing migrant smuggling long-term. Proposed solutions include decreasing both the “push” and “pull” factors of migration by ratifying existing legislation regarding basic human rights, implementing national policies that increase migrant rights in destination countries, and shifting further …

Correlates Of Ethical Sensitivity And Reasoning And Their Potential Influence On Accounting Education, Michael Francis Ruff

2016

This dissertation consists of three studies investigating the impact of accounting ethics interventions on graduate students in accountancy. This dissertation relies primarily on neo-Kohlbergian theory and Rest’s framework of ethical behavior (Rest 1979, 1986) because this framework has figured prominently in the body of accounting and auditing research on ethics and professionalism.

The first study reviews and synthesizes the current state of the literature regarding accounting ethics. This literature review starts with definitions and follows with a history and evolution of ethics theories, with an emphasis on neo-Kohlbergian theory, Rest’s Four Component Model of ethical behavior, the Defining Issues Test …

The Ethics Of Non-Traditional Contract Drafting, Lori D. Johnson

Scholarly Works

A new generation of contract drafters faces increasing commentary advising them to change traditional contract terms into plain language constructions. Yet, traditional, tested terms have consistent meanings, and when these meanings benefit client objectives, advocates should consider retaining them. This article posits that failing to do so can impact a lawyer’s ethical obligations. Specifically, an attorney’s duties of competence, allocation of authority, diligence, and communication under the Model Rules of Professional Conduct require careful thought about modernizing tested contract terms. These duties require the ethical drafter to research whether the use of a traditional, tested term advances a client goal …

Domestic Violence And The Politics Of Self-Help, Elizabeth L. Macdowell

Scholarly Works

Self-help programs are conceptualized as alternatives to attorney representation that can help both courts and unrepresented litigants. The rhetoric of self-help also typically includes empowering unrepresented individuals to help themselves. But how do self-help programs respond to litigants’ efforts at self-advocacy? This Article reports findings from a study of courthouse self-help programs assisting unrepresented litigants applying for protection orders. The central finding is that self-help staff members were not neutral in the provision of services despite a professed ethic of neutrality. Using the sociological concept of demeanor, this Article shows that staff members rewarded protection order applicants who conformed to …