Legal Ethics and Professional Responsibility Commons^™

In The Midst Of Change, A Few Truths Remain—A Review Of Trazenfeld And Jarvis’S Florida Legal Malpractice Law, Jan L. Jacobowitz Ms.

St. Mary's Journal on Legal Malpractice & Ethics

Abstract forthcoming.

Legal Ethics And Law Reform Advocacy, Jeffrey W. Stempel

St. Mary's Journal on Legal Malpractice & Ethics

Social activism, particularly law reform, has long been an accepted, even revered part of the lawyer’s identity. But modern developments such as nation-wide firms, the economic importance of client development, and aggressive attempts by clients to deploy attorneys as de facto, undisclosed lobbyists have put substantial pressure on the traditional vision of the attorney as a “lawyer-statesman” or someone who “checks clients at the door” when participating in law reform activities. Furthermore, law reform activism on behalf of one client (or prospective client when attorneys use their law reform lobbying as part of their marketing strategy) poses a real danger …

Should Judges Have A Duty Of Tech Competence?, John G. Browning

St. Mary's Journal on Legal Malpractice & Ethics

In an era in which lawyers are increasingly held to a higher standard of “tech competence” in their representation of clients, shouldn’t we similarly require judges to be conversant in relevant technology? Using real world examples of judicial missteps with or refusal to use technology, and drawn from actual cases and judicial disciplinary proceedings, this Article argues that in today’s Digital Age, judicial technological competence is necessary. At a time when courts themselves have proven vulnerable to cyberattacks, and when courts routinely tackle technology related issues like data privacy and the admissibility of digital evidence, Luddite judges are relics that …

Genome Editing 2020: Ethics And Human Rights In Germline Editing In Humans And Gene Drives In Mosquitoes, George J. Annas

Faculty Scholarship

The moon landing, now more than a half century in the past, has turned out to be the culmination of human space travel, rather than its beginning. Genetic engineering, especially applications of CRISPR, now presents the most publicly discussed engineering challenges—and not just technical, but ethical as well. In this article, I will use the two most controversial genomic engineering applications to help identify the ethics and human rights implications of these research projects. Each of these techniques directly modifies the mechanisms of evolution, threatens to alter our views of ourselves as humans and our planet as our home, and …

Limited Scope Lottery: Playing The Odds On Your Ability To Withdraw, Lianne S. Pinchuk

Brooklyn Law Review

Limited scope representation, also called unbundled representation, has become widespread and widely used over the past three decades. While the American Bar Association has amended its model rules to expressly permit such representation, it failed to amend its model rules governing withdrawal. Some states have been more proactive than others in confronting potential withdrawal issues in limited scope representation. Those states that have attempted to remedy the withdrawal/termination issues have created specific rules governing limited scope engagements allowing for easier withdrawal by attorneys in such matters. Neither New York nor the American Bar Association have promulgated rules (or model rules) …

Speaking Volumes: The Failure Of American Courts To Address The Underlying Themes Of Silence And Patriarchy Within The Civil Order Of Protection Process In Davenport, Iowa, Catherine Priebe

Sociology: Student Scholarship & Creative Works

Domestic abuse is a pervasive issue within the United States. Approximately three women will be murdered by an intimate partner every day and around half of all women will experience psychological abuse by an intimate partner in their lifetime. As such, it is important to have legal avenues that survivors can pursue in order to ensure safety for themselves and their children. There are many obstacles to obtaining a civil order of protection despite it being the most common legal option survivors choose to pursue. Survivors must take on the burden of proof and hire their own attorney if they …

Rules Versus Standards: A Moral Inquiry Into Washington's Character & Fitness Hearing Process, Jennifer Aronson

Washington Law Review

Historically, moral character inquiries within the state bar admission process have led to the exclusion of diverse and important voices from the legal profession, both consequentially and at times by design. Washington does not keep statistics on the race, ethnicity, gender, or economic class of bar applicants who are referred to character and fitness hearings, nor on the outcomes of those hearings. Examining how implicit bias and disparate outcomes interact in other areas of discretionary adjudicative decision-making illustrates the potential impact that the character and fitness process has on underrepresented communities in the legal profession.

In a criminal justice reform …

Korean Code Of Ethics For Attorneys, Wonji Kerper, Changmin Lee

Washington International Law Journal

In 2009, Korea implemented a law school educational system, which not only changed the legal education system, but the legal landscape as a whole. This has led to rapid growth in the number of attorneys. Although the increased number of attorneys has resulted in lower barriers to accessing justice, it has also brought the unintended consequence of cut-throat competition. With the number of disciplinary actions rising by four-fold in the last three years, the current version of the Korean Code of Ethics for Attorneys is certainly a step in the right direction but may not be enough to strengthen attorneys’ …

Translation: The Korean Bar Association's Code Of Ethics For Attorneys, Wonji Kerper, Changmin Lee

Washington International Law Journal

No abstract provided.

Followers’ Reactions To Leader Differentiation, Yuchuan Liu

Dissertations and Theses Collection (Open Access)

Leaders generally differentiate their relationships with followers, for example, by providing some with more respect, trust, support, or information than others (Liden & Graen, 1980). However, the effects of such leader differentiation on followers remain inconclusive such that research suggests that leader differentiation may have negative, positive, or null effects on favorable employee work-related outcomes (for a recent review, see Martin et al., 2018). To better understand the effects of leader differentiation, utilizing leader-member exchange (LMX) theory, I considered three inherently connected properties in the leader differentiation process – LMX differentiation, LMX quality and LMX social comparison (Martin et al., …

Behavioral Ethics, Deception, And Legal Negotiation, Russell Korobkin

Nevada Law Journal

No abstract provided.

The Regulation Of Lawyers In Compliance, Jennifer M. Pacella

Washington Law Review

The field of compliance has exploded in interest, attention, and growth over recent years. It has emerged as a popular career path for those trained in the law, giving rise to an influx of job opportunities for new law school graduates and seasoned attorneys alike. Additionally, compliance has tightened the essential interplay between business and law. Numerous compliance officers hold J.D. degrees and many also serve simultaneously as both an organization’s chief compliance officer and general counsel, thereby muddying the lines between which service constitutes the “practice of law,” requiring adherence to professional rules of responsibility, or non-legal work, where …

Walk The Line: Aristotle And The Ethics Of Narrative, Lori D. Johnson, Melissa Love Koenig

Nevada Law Journal

No abstract provided.

A Typology Of Justice Department Lawyers' Roles And Responsibilities, Rebecca Roiphe

Articles & Chapters

President Trump’s administration has persistently challenged the legitimacy of the Department of Justice (“DOJ”). In the past, DOJ, like other governmental institutions, has been fairly resilient. Informal norms and practices have served to preserve its proper functioning, even under pressure. The strain of the past three years, however, has been different in kind and scale. This Article offers a typology of different roles for DOJ lawyers and argues that over time the institution has evolved by allocating different functions and responsibilities to different positions within DOJ. By doing so, it has for the most part maintained the proper balance between …

Ethical Implications Of Forensic Genealogy In Criminal Cases, Solana Lund

The Journal of Business, Entrepreneurship & the Law

The use of forensic genealogy to solve criminal cases is likely to increase in the coming years, especially given its success in solving cold cases. While its potential for good is impressive, there are also legitimate ethical concerns that need to be addressed. As society sees an increase in the use of forensic genealogy and DTC databases in criminal investigations as well as an increase in the media attention it garners, there will be more discussion regarding ethical implications. Legal scholars say that it is only a matter of time before courts weigh in on the privacy of DNA and …

Augustine, Lawyers & The Lost Virtue Of Humility, Bruce P. Frohnen

Catholic University Law Review

The leading edge of legal scholarship and practice in recent decades has evinced a commitment to progressive politics at the expense of constitutional governance, the rule of law, and justice understood as vindication of the reasonable expectations of both the public and the parties to any given case or controversy. This article argues that renewed understanding of the virtue of humility, rooted in a genuine concern to do good according to one’s abilities, rights, and duties, is essential to the maintenance of decency in the legal profession and society as a whole. Such virtue is allowed, if not required, by …

The Normative Molecule: Patent Rights And Dna, Saurabh Vishnubhakat

Faculty Scholarship

Throughout the biotechnology age, fears about the distortionary effects of property and other legal institutions upon the health and self-determination of individuals and societies have accompanied more popularly sensational fears about unscrupulous choices within the scientific community itself. Still, for most of that time the prevailing legal regime both in the United States and in Europe remained generally permissive of ownership of, and exclusionary power over, the fruits of much biomedical research, though this leniency took different forms and came about in different ways. In particular, the policy of the United States Patent and Trademark Office to grant patents on …

The Use Of Digital Millenium Copyright Act To Stifle Speech Through Non-Copyright Related Takedowns, Miller Freeman

Seattle Journal of Technology, Environmental, & Innovation Law

In 1998, Congress passed the Digital Millennium Copyright Act. This law provided new methods of protecting copyright in online media. These protections shift the normal judicial process that would stop the publication of infringing materials to private actors: the online platforms. As a result, online platforms receive notices of infringement and issue takedowns of allegedly copyrighted works without the judicial process which normally considers the purpose of the original notice of infringement. In at least one case, discussed in detail below, this has resulted in a notice and takedown against an individual for reasons not related to the purpose of …

The Government Lawyer As Activist: A Legal Ethics Analysis, Andrew Martin

Articles, Book Chapters, & Popular Press

Can a lawyer and government employee represent the government in her professional life while being an activist in her personal life? There is a striking and seemingly irreducible clash, at least at the intuitive level, between the two roles – between representing the government on the one hand while at the same time lobbying it or litigating against it on the other. Government lawyers are nonetheless some of the more successful activists in recent Canadian history. This article analyzes whether this duality is problematic from a legal ethics perspective. The analysis is grounded in three case studies: disability rights activist …

Hart Failure: The Supreme Judicial Court's Interpretation Of Nonjudicial Demeanor, Harold T. Kelly Jr.

Maine Law Review

Among the inherent powers of the Maine Supreme Judicial Court is the power to regulate the officers of its courts. As the court explained in Board of Overseers of the Bar v. Lee, “each of the three co-equal branches of government has, without any express grant, the inherent right to accomplish all objects necessarily within the orbit of that department when not expressly allocated to, or limited by the existence of a similar power in, one of the other departments.” It is not surprising that the Supreme Judicial Court has for many years regulated, through formal disciplinary proceedings, the conduct …

The Unmet Legal Needs Of The Poor In Maine: Is Mandatory Pro Bono The Answer?, Wendy F. Rau

Maine Law Review

In 1989, the Maine Commission on Legal Needs was formed to study the civil legal needs of Maine's poor population and to develop a plan for meeting those needs. Similar projects have been undertaken in a number of other states and by the American Bar Association in recent years. Each study has revealed a significant unmet need among the poor for assistance with legal problems. There seems little doubt that the situation is serious and widespread. The difficulty lies in finding a solution. One proposal that has been advanced is mandatory pro bono, a program that would require attorneys to …

Hart Failure: The Supreme Judicial Court's Interpretation Of Nonjudicial Demeanor, Harold T. Kelly Jr.

Maine Law Review

Among the inherent powers of the Maine Supreme Judicial Court is the power to regulate the officers of its courts. As the court explained in Board of Overseers of the Bar v. Lee, “each of the three co-equal branches of government has, without any express grant, the inherent right to accomplish all objects necessarily within the orbit of that department when not expressly allocated to, or limited by the existence of a similar power in, one of the other departments.” It is not surprising that the Supreme Judicial Court has for many years regulated, through formal disciplinary proceedings, the conduct …

Foreword: Corporate Lawyers: Ethical And Practical Lawyering With Vanishing Gatekeeper Liability, Marc I. Steinberg

Fordham Law Review

As the articles in this Colloquium illustrate, the role of the corporate lawyer—both as in-house and outside counsel—is instrumental in effectuating ethical lawyering, sound corporate governance practices, and law compliance. These timely contributions that are summarized at a later point in this Article comprise a valuable resource to assess the functions, obligations, and perceptions of the corporate attorney, as well as the public policy ramifications of counsel’s conduct.

Compliance Elites, Miriam H. Baer

Fordham Law Review

As corporate compliance has expanded its influence, so too has the status of those who implement and oversee the firm’s compliance function. Chief compliance officers (CCOs), who are often (but not exclusively) lawyers by training, increasingly boast the types of resumes one associates with elite lawyers. In many ways, this is good news for compliance. There may, however, be several downsides to a strategy of relying so heavily on a cadre of compliance elites. The aim of this Article is to discuss one of these downsides. High-performing lawyers nurture a potent, yet underexplored, cognitive blind spot. Having performed extremely well …

Bad Agent, Good Citizen?, Claire Hill, Brett Mcdonnell, Aaron Stenz

Fordham Law Review

Analyses of agents’ behavior normally focus on whether an agent is a good agent or a bad agent— whether or not an agent is faithfully pursuing the interests of her principal. But we should also consider whether a lawyer acting as a good agent is also promoting the public interest (i.e., a good citizen) or not (i.e., a bad citizen). Similarly, we should ask whether lawyers acting as bad agents are also harming society, or whether they may actually be promoting the public interest even though they are not promoting their clients’ interests.

Value Creation By Transactional Associates, Cathy Hwang

Fordham Law Review

How do transactional associates add value to deals? Other scholars have characterized transactional lawyers as transaction cost engineers, regulatory arbitrageurs, and enterprise architects. But those words describe partners. Although most of the deal team is made up of associates—and the vast majority of deal lawyers begin and end their careers in law firms as associates—the literature has said little about the work of associates. This Article seeks to illuminate what transactional associates do and how they add value to deals. Building on literature in contract design and transactional lawyering, it argues that associates help to mitigate some of the shortcomings …

Economic Inequality, Access To Law, And Mandatory Arbitration Agreements: A Comment On The Standard Conception Of The Lawyer’S Role, Sung Hui Kim

Fordham Law Review

This Article contends that these autonomy-based defenses of the standard conception cannot withstand the “economic inequality” objection. According to this objection, the moral worthiness of lawyering under the standard conception cannot be reconciled with a legal system that is so marred by gross economic inequality such that only the wealthy have access to lawyers. It can also not be reconciled with the fact that the wealthy routinely use lawyers to undermine the public interest and exploit others who cannot afford lawyers. After examining responses to the economic inequality objection, this Article concludes that these responses do not take seriously how …

Food In Prison: An Eighth Amendment Violation Or Permissible Punishment?, Natasha M. Clark

Honors Thesis

This piece analyzes aspects such as; Eighth Amendment provisions, penology, case law, privatization and monopoly, and food law, that play into the constitutionality of privatized prisons using food as punishment. Prisoners have protection from excessive bail and fines and from cruel and unusual punishment, as per the 8^th Amendment; however, deprivations such as restricted diets and harm caused by them is only a valid violation if the prisoner can prove deliberate indifference. Privatization of the prison industry has led to reduced quality, choice, and diversity in areas such as food, which comes at a detrimental cost to prisoners. Serving …

Return Of The King: Corruption Backsliding In America, Pedro Gerson

Cardozo International & Comparative Law Review

The United States appears to be going through a crisis of corruption. However, it is hard to know whether this is a matter of appearance or if the country is at risk of high levels of corruption making a comeback. The Article applies the equilibrium model of corruptionthe leading social science account of how corruption operates-to the current U.S. system, and shows that the United States may indeed be backsliding. The potential for corruption to creep back up is due to more than the political moment. Rather, it is the result ofpolitics combined with the relatively powerless institutional controls for …

The Legal Scholar's Guide Book Reviews, Jamie Abrams

Scholarly Articles in Law Reviews & Journals

Success in law school and in the legal profession often involves mastering and navigating the plethora of unwritten rules and norms that govern institutions and communities. Differences in access to those unwritten rules can privilege and advance some while disadvantaging others. A second-generation law student, for example, is far more likely to know about the professional value of law review than a first-generation law student. Law scholarship is particularly plagued by an insularity that can yield a problematic echo chamber within elite institutions and privileged communities. Thus, the more legal scholarship can be explicitly demystified, taught, and mentored, the more …