Legal Ethics and Professional Responsibility Commons^™

The Debate Over Disclosure In Third-Party Litigation Finance: Balancing The Need For Transparency With Efficiency, Alec J. Manfre

Brooklyn Law Review

The market for third-party litigation financing (TPLF) in the United States is facing unprecedented growth and popularity. The ever-increasing complexity and cost of legal disputes, especially in the commercial context, has made third-party financing an invaluable resource for both litigants in need of capital and investors seeking to diversify their portfolios with nontraditional assets. However, as the market continues to boom, so does the risk that TPLF will be used unethically. Critics of the industry are calling on regulators at both the state and federal levels to implement comprehensive disclosure requirements for TPLF at the outset of all civil litigation …

Ethical Dilemma: Police Access To Private Internet Data An Analysis Of The Ecpa Of 1986, Its Effects On The St. Louis Area, And The Proposed Solutions To Remedy This Outdated Document., Amber Essary

Undergraduate Research Symposium

My research was focused on the ethical dilemma of police access to private internet data and how it pertains to the outdated Electronic Communications Privacy Act (ECPA) of 1986. This work contains a case study of serial killer Maury Travis, an overview of the history of the ECPA, an argument for why police should have access to private data, an ethical analysis of the two solutions to this dilemma, and an argument for what solution I believe to be the best one. My research concluded that the two possible solutions to this dilemma were to revise the ECPA or to …

Ending Injustice: Solving The Initial Appearance Crisis, Pamela R. Metzger, Janet C. Hoeffel, Kristin Meeks, Sandra Sidi

Deason Center Reports

Most Americans expect that if they are arrested, they will quickly appear before a judge, learn about the charges, and have an attorney assigned to defend them. The reality is vastly different. After arrest, a person can wait in jail for days, weeks, or even months before seeing a judge or meeting an attorney. This report chronicles the resulting initial appearance crisis and highlights its devastating consequences. More importantly, it provides policymakers and advocates with actionable recommendations.

Wandering With Artificial Intelligence And Its Obscure Legal Liability, Muhammad Pasha Nur Fauzan, Darian Amarta, Evan Tobias, Vikri Ricardo, Melania Fidela G.

Indonesia Law Review

The high level of autonomy of AI will raise the problem of legal liability at some point in the future. If AI’s behaviour causes an illegal consequence, who to held liable? This article will explore the problem concerning legal liability of AI into two main discussion. The first discussion will explore the possibility of imposing legal liability of AI to human. This part will discuss various available option to solve the AI liability problem by imposing legal liability on either users or manufacturers. While the second discussion will explore the possibility of imposing legal liability of AI to AI itself. …

"I Wish There Was A Treaty We Could Sign": An Inquiry Into The Making Of The Global Pact For The Environment, Marie-Catherine Petersmann

Indiana Journal of Global Legal Studies

This article provides ethnographic insights into the making of the latest UN-backed instrument for transnational environmental law and governance: the Global Pact for the Environment (GPE). It narrates the rise and fall of a contemporary policy project designed to unify and strengthen international environmental law. The story starts in 2015 on the premises of a Parisian legal think tank and ends in May 2019 at the headquarters of the United Nations Environment Programme in Nairobi, where states ultimately decided not to adopt the GPE as a legally binding instrument but opted to prepare apolitical declaration to be presented in 2022 …

What An Ethics Of Discourse And Recognition Can Contribute To A Critical Theory Of Refugee Claim Adjudication, David Ingram

Philosophy: Faculty Publications and Other Works

Thanks to Axel Honneth, recognition theory has become a prominent fixture of critical social theory. In recent years, he has deployed his recognition theory in diagnosing pathologies and injustices that afflict institutional practices. Some of these institutional practices revolve around specifically juridical institutions, such as human rights and democratic citizenship, that directly impact the lives of the most desperate migrants. Hence it is worthwhile asking what recognition theory can add to a critical theory of migration. In this paper, I argue that, although its contribution to a critical theory of migration is limited, it nonetheless carves out a unique body …

Sword And Shield: The Georgia Supreme Court Adopts Third-Party Waiver Of Attorney-Client Privilege, D. Garrett White

Mercer Law Review

The attorney-client privilege is generally held out as a sacred instrument (a shield) reserved for clients and used by attorneys for the benefit of those clients. Persons untrained in the law tend to have a basic understanding of what the attorney-client privilege is and can often explain in a rudimentary sense what it protects. What few non-lawyers realize, however, is that the privilege is not absolute, and is waivable under certain, limited, circumstances. Now, it seems that shield is losing its integrity in the realm of legal malpractice.

In January 2020, the Georgia Supreme Court ruled in Hill, Kertscher & …

Federalism In The Algorithmic Age, Chad Squitieri

Duke Law & Technology Review

No abstract provided.

Frivolous Defenses, Thomas D. Russell

Cleveland State Law Review

This Article is about civil procedure, torts, insurance, litigation, and professional ethics. The Article is the opening article in a conversation with Stanford Law Professor Nora Freeman Engstrom, who has written about the plaintiffs’ bar and settlement mill attorneys. The empirical center of this piece examines 356 answers to 298 car crash personal injury cases in Colorado’s district courts. The Article situates these cases within dispute pyramid elements, including the total number of miles-traveled within Colorado and the volume of civil litigation. The Article then analyzes the defense attorneys’ departures from the Colorado Rules of Civil Procedure, especially Rule 8. …

Legal Lying?, Robert Angyal, Nicholas Saady

Pepperdine Dispute Resolution Law Journal

Mediation has become very common in the USA and Australia—at least partly because of court-mandated mediation initiatives. Lawyers often represent clients at mediations, so the increased use of mediation makes it important to understand how both jurisdictions regulate lawyers’ advocacy on behalf of their clients during mediation. This article comparatively analyzes how professional standards regulate the truthfulness of lawyers’ advocacy during mediation in Australia and the United States. It focuses on uniform regulation in those jurisdictions. Part One will comparatively analyze the relevant regulations in Australia and the United States, and the types of obligations contained in those regulations—for example, …

A Firm Pillar Of Local Justice: The Failures Of The New York Town And Village Justice Courts Supporting Statewide Adoption Of The District Court Model, Noah Sexton

Journal of Law and Policy

Town and village justice courts have been the center of municipal law, both civil and criminal, since the mid-nineteenth century. However, in the modern world, they have become corrupt, poorly managed institutions, creating issues involving procedural integrity and civil rights. In order to remedy these failures and modernize the New York State Unified Court System, state legislators must look to the district court model as it currently exists in Nassau and Eastern Suffolk Counties. The district court model offers several benefits, including the imposition of educational and experiential requirements for judges, the creation of internal and external oversight institutions, the …

Session 1: Access To Legal Services - The Role Of Innovation And Technology, Steven Bender, Stacy Butler, Anna Carpenter, Michael Cherry, Sands Mckinley, Kimball Dean Parker, Miguel Willis

SITIE Symposiums

This expert panel is addressing access to justice problems. People without access to lawyers and legal services suffer in many ways not limited to divorce, domestic violence, and educational roadblocks. This panel will ask what lawyers can do to help, in what ways can technology help or replace lawyers in the delivery of legal and non-legal services. It will also explore different legal services being offered by individuals who do not have a JD, online firms, and developing technology in a law firm owed subsidiary. There are six panelists who are broken into two categories: (1) the innovation and delivery …

Moral Truth And Constitutional Conservatism, Gerard V. Bradley

Louisiana Law Review

Conservative constitutionalism is committed to "originalism," that is, to interpreting the Constitution according to its original public understanding. This defining commitment of constitutional interpretation is sound. For decades, however, constitutional conservatives have diluted it with a methodology of restraint, a normative approach to the judicial task marked by an overriding aversion to critical moral reasoning. In any event, the methodology eclipsed originalism and the partnership with moral truth that originalism actually entails. Conservative constitutionalism is presently a mélange of mostly unsound arguments against the worst depredations of Casey's Mystery Passage. The reason for the methodological moral reticence is easy to …

Machiavelli And The Bar: Ethical Limitations On Lying In Negotiation, James J. White

Book Chapters

This article addresses the general question of truthfulness in the process of negotiation, as that question is faced in Rule 4.2 of the Model Rules of Professional Conduct. The obligation to behave truthfully in negotiation is embodied in the requirement of Rule 4.2(a) that directs the lawyer to “be fair in dealing with other participants.” The article then presents five cases which show that one does not and cannot intend that a negotiator be “truthful” in the broadest sense of that term. It would be unfortunate, therefore, for the rule that requires “fairness” to be interpreted to require that a …

Switching Hats In Med-Arb: The Ethical Choices Required To Protect Process Integrity, Nancy A. Welsh

Faculty Scholarship

Increasingly, there is interest in the use of mixed-mode dispute resolution, including med-arb. Med-arb provides the opportunity for parties to reach their own agreements, while also guaranteeing a binding decision. However, because med-arb combines mediation and arbitration, it presents a variety of ethical challenges – to party self-determination, impartiality, confidentiality, and even fairness and process integrity. Relying primarily on the Model Standards of Conduct for Mediators and the Code of Ethics for Arbitrators in Commercial Disputes, it becomes clear that some of these ethical challenges can be met through process choices – e.g., the use of two neutrals rather than …

The Ethical Path: The True Significance Of Saenz Versus Roe And The Establishment Of The Right To Travel, Owen Meyer

Student Research

In 1999, the Supreme Court heard a case that, at the time, was viewed as inconsequential. Saenz v. Roe began as a welfare suit in the state of California, and, at its core, it is a case that tries the grounds on which the states can deny welfare benefits. The historical precedent goes beyond welfare; the precedent touches on subjects of wealth, race, and sex. While the case itself had very little in the means of legal history, which forced the Court to make its decision not based on the law, but on making the ethical choice. The decision of …

Victim Impact: The Manson Murders And The Rise Of The Victims’ Rights Movement, Merrill W. Steeg

LSU New Orleans Theses and Dissertations

No abstract provided.

Equal Injustice For All: High Quality Self-Representation Does Not Ensure A Matter Is “Fairly Heard”, Jona Goldschmidt

Seattle University Law Review Online

Self-represented litigants (SRLs) are generally less successful in court than parties with legal representation. Some access-to-justice programs view self-representation as a skill that can be taught and will lead to more success in case outcomes, but Jona Goldschmidt pushes back against this assumption. Goldschmidt argues that even high functioning, educated, and computer savvy SRLs are at a disadvantage in the courtroom when courts strictly enforce rules and do not offer reasonable accommodations.

In this Article, Goldschmidt evaluates three cases that illustrate expert SRLs’ challenges in the courtroom, and he argues that ridged rule enforcement and failure to accommodate lead to …

Telling The Story On Your Timesheets: A Fee Examiner's Tips For Creditors' Lawyers And Bankruptcy Estate Professionals, Nancy B. Rapoport

Brooklyn Journal of Corporate, Financial & Commercial Law

This short (approx. 5,000 words) essay, which forms the basis of a keynote address to the Federal Bar Association that I’m doing next month, discusses how much of a lawyer’s embedded assumptions and cognitive errors can come across in something as simple as a time entry on a bill. So much can be revealed about how a lawyer views himself or herself in society and about the lawyer’s relationship with the client that it’s worth examining what we can find when we look at legal bills. One note, though: my writing style is informal and distinctive in that regard (especially …

Freedom Of Expression V. Social Responsibility On The Internet: Vivi Down Association V. Google, Raphael Cohen-Almagor, Natalina Stamile

Seattle Journal of Technology, Environmental, & Innovation Law

The aim of the article is to reflect on Google’s social responsibility by analyzing a milestone court decision, Vivi Down Association v. Google, that took place in Italy, involving the posting of an offensive video clip on Google Video. It was a landmark decision because it refuted the assertion that the Internet knows no boundaries, that the Internet transcends national laws due to its international nature, and that Internet intermediaries, such as Google, are above the law. This case shows that when the legal authorities of a given country decide to assert their jurisdiction, Internet companies need to abide by …

Getting Away With Murder: How California State Law Determined Recovery In First Roundup Cancer Case Johnson V. Monsato Co., Eliza L. Quattlebaum

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Emergent Neurotechnologies And Challenges To Responsibility Frameworks, Laura Cabrera, Jennifer Carter-Johnson

Akron Law Review

This article examines the emerging medical technology of deep brain stimulation (DBS), a type of brain implant, to determine its ethical and legal ramifications. Lawyers, philosophers, and ethicists have labored to define the conditions under which individuals are to be judged legally and morally responsible for their actions. But where does responsibility lie if a person acts under the influence of her brain implant? Do we hold the individual solely responsible for her actions? Can we attribute any blame to the device? What about the engineers who designed it, or the manufacturer? The neurosurgeon who implanted it, or the neurologist …

Out Of Sight, Out Of Mind: Analyzing Inhumane Practices In Mississippi’S Correctional Institutions Due To Overcrowding, Understaffing, And Diminished Funding, Ariel A. Williams

Honors Theses

The purpose of this research is to examine the political, social, and economic factors which have led to inhumane conditions in Mississippi’s correctional facilities. Several methods were employed, including a comparison of the historical and current methods of funding, staffing, and rehabilitating prisoners based on literature reviews. State-sponsored reports from various departments and the legislature were analyzed to provide insight into budgetary restrictions and political will to allocate funds. Statistical surveys and data were reviewed to determine how overcrowding and understaffing negatively affect administrative capacity and prisoners’ mental and physical well-being. Ultimately, it may be concluded that Mississippi has high …

[email protected], Bruce A. Green, Carole Silver

Northwestern Journal of Technology and Intellectual Property

The transformative potential of technology in legal practice is well recognized. But wholly apart from how law firms actually use technology is the question of what law firms say about how they use and relate to technology—in particular, how law firms communicate whether technology matters and has value in what they do. In the past, firms in the BigLaw category, especially at the top echelon, have grounded their reputations on the credentials and achievements of their lawyers. In this paper, we explore whether elite law firms use technology similarly by describing it as an additional tool of inter-firm competition—a sort …

Insider Trading As A Precursor To Modern Business Ethics, Robyn Coleman

Finance Undergraduate Honors Theses

There has been a recent change in business that there is more focus on the “stakeholder approach” than shareholder primacy. This can be attributed to the early actions and illegality of insider trading that expected a step beyond a solely economic approach. This attitude was then replicated to become what we see as the modern business approach. Business now includes ethical investing, environmental focus, corporate citizenship, and emphasis on multiple stakeholders that was not always there. Companies have embraced this position while others have been criticized for not doing so. As this approach develops and changes, it will be enlightening …

Civil Unrest And The Role Of The Attorney General: A Comparison Of Ramsey Clark To William Barr, Lonnie T. Brown Jr.

Mercer Law Review

This article compares and contrasts the manner in which former Attorneys General Ramsey Clark and William Barr dealt with racially-motivated civil unrest. Clark faced this challenge multiple times during the tumultuous late 1960s. Barr, on the other hand, dealt with such unrest in 1992 and again in 2020 following the police-killing of George Floyd. The respective strategies taken by these two men reveal much about their personal values and how those may have, rightly or wrongly, shaped their perspectives on the attorney general’s role. More importantly, Clark’s and Barr’s conflicting approaches in carrying out their responsibilities in addressing social discord …

Serving A Lawless President, William R. Casto

Mercer Law Review

What does an Attorney General do when confronted with a lawless President? At first glance, the answer is easy, but on second thought, a realistic answer is complicated. The answer is complicated because the phrase “lawless president” is not necessarily pejorative. In fact, western leaders have always exercised a prerogative power to throw the law overboard when they see fit. Some of our greatest Presidents have followed this path. Thomas Jefferson did, as did Abraham Lincoln and Franklin Roosevelt.

So what does the President’s Attorney General do? The law and principles of professional responsibility offer a clear answer to the …

History, Norms And Conflicting Loyalties In The Office Of Attorney General, Nancy Virginia Baker

Mercer Law Review

A sincere thank you to Patrick Longan and Mercer Law Review for organizing this timely and important symposium on ethics and professionalism in the Office of the U.S. Attorney General. It is such a fascinating office to study, at the nexus of law and politics.

I was a college undergraduate during Watergate, when I first became aware there was an office of attorney general. In graduate school, my interest in it piqued when Edwin Meese was nominated by Ronald Reagan. From then on, I have focused my research on the U.S. Attorney General, especially the duality inherent in the office. …

Foreward, Patrick Longan

Mercer Law Review

No abstract provided.

Partisanship And The Attorney General Of The United States: Timely Lessons From Edward Levi And Griffin Bell About Repairing A Politicized Department Of Justice, Patrick E. Longan, James P. Fleissner

Mercer Law Review

The proper role of the Attorney General of the United States has been much in the news in recent years. William Barr received scathing criticism for how he handled the Mueller Report regarding Russian interference in the 2016 election; the sentencing of President Trump’s associate, Roger Stone; the charges against President Trump’s first national security adviser, Michael Flynn; and numerous other matters.

Mr. Barr’s critics accused him of perverting his office from one that served the rule of law in a nonpartisan fashion into one that catered to President Trump’s personal and political desires. Many of these critiques condemned Barr’s …