Legal Ethics and Professional Responsibility Commons^™

Substitute Decision Making About Research: Identifying The Legally Authorized Representative In Four Canadian Provinces, Sheila Wildeman, Gina Bravo, Marie-France Dubois, Carole Cohen, Janice Graham, Karen Painter, Suzanne Bellemare

Articles, Book Chapters, & Popular Press

When an adult is legally incapable of deciding whether to participate in health research, who (if anyone) has the legal authority to make that decision? Furthermore, how well do Canadians with a stake in health research, such as older adults, informal caregivers of older persons with cognitive impairments, researchers in aging, and members of research ethics boards (“REBs”), understand the state of the law on this question? These two interrelated matters are addressed by our study.

We find that the laws of the four provinces we target are frequently unclear as to whether, or in what circumstances, a guardian, proxy …

The Convention On The Rights Of Persons With Disabilities: Beginning To Examine The Implications For Canadian Lawyers' Professional Responsiblities, H Archibald Kaiser

Articles, Book Chapters, & Popular Press

The United Nations Convention on the Rights of Persons with Disabilities (hereafter the CRPD or the Convention) should herald a new epoch in the way persons with disabilities are treated throughout the world community. The entire panoply of ramifications of this Convention, the purpose of which is “to promote, protect and ensure the full enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity”, (Article 1) is as yet unascertainable. However, States Parties must “take all appropriate measures to eliminate discrimination by any person, organization or private enterprise” (Article …

Why Lawyers Should Assess Lawyer's Ethics: A Review Of Adrian Evans, Assessing Lawyers' Ethics: A Practitioner's Guide, Peter A. Joy

Scholarship@WashULaw

There has been a growing interest in empirical research on law firms and lawyer conduct for more than a decade. Recent studies have reached the same conclusion as studies from the 1960s and 1970s – the ethical culture in the law office is critical to the ethical behavior of the individual lawyers in the office.

With this in mind, the question becomes this: What should the legal profession do to encourage better law firm management to promote ethical behavior? In ASSESSING LAWYERS' ETHICS, Adrian Evans maintains that law societies and bar associations could improve lawyers' ethical behavior through various strategies …

Necessity Defense To Felon-In-Possession Charges: The Third Circuit Justifies A Federal Justification Defense In Virgin Islands V. Lewis, Kathryn Maza

Villanova Law Review (1956 - )

The article presents information on the conceptions of morality and justice and the maximization of social welfare. The defense of necessity, its common law justification and the recognition of federal justification defense are discussed. The decisions made by the Third Circuit of the U.S. Court of Appeals in the trial of Virgin Islands v. Lewis, the judicial duty and the justification doctrine are also discussed.

Legal Ethics And Federal Taxes, 1945-1965: Patriotism, Duties, And Advice, Michael Hatfield

Articles

This article is devoted to exploring the legal ethics writings by tax lawyers in a pivotal period of income tax history: 1945-1965, the first two decades of the federal income tax as we now know it. Although the income tax began in 1913, it was World War II that created the modem mass income tax: in 1939 there were 3.9 million individual income tax taxpayers but by 1945 there were 42.6 million. This period was also one of significant progress in the administration of the income tax: the Internal Revenue Code was re-organized in 1954 and, following widespread corruption scandals, …

Musings On Mediation, Kleenex, And (Smudged) White Hats, Nancy A. Welsh

Faculty Scholarship

This Essay speculates on the global future of mediation. It anticipates that mediation’s popularity will continue to grow both in the U.S. and abroad particularly as courts continue to encourage and institutionalize the process. Meanwhile, the Essay acknowledges the existence and continuing development of a relatively small cadre of elite lawyers and retired judges who serve as private mediators in large, complex matters.

The Essay also raises concerns, though, regarding the current lack of clarity in the goals and procedural characteristics that define mediation. The Essay asserts that such lack of clarity invites abuse of the mediation privilege and exclusionary …

Evolving Equality: The Development Of The International Defense Bar, Michael A. Newton

Vanderbilt Law School Faculty Publications

Defense counsel in international criminal proceedings face difficult challenges that are intrinsic to the modern system of internationalized accountability; yet their professionalism and performance represent perhaps the most determinative dimension for evaluating the overall fairness of what the world terms “justice” for grievous atrocities. Defense teams labor against the tides of public opinion and the deeply felt pain of the victims of mass atrocities. Abandonment of appropriate defense efforts, whether the result of professional fecklessness or personal pressures, would transform international criminal law into an organized sham aimed at achieving a shadow of justice while undermining the rights of the …

Prosecutors' Ethical Duty Of Disclosure In Memory Of Fred Zacharias, Bruce A. Green

San Diego Law Review

This Article might lead one to ask which body better apprehended the nature of the prosecutorial disclosure rule. Two parts of this Article will explore that question and reach an unexpected conclusion: although the ABA ethics committee and the Ohio Supreme Court had opposite visions of equivalent rules, they may both be right. Even so, there is something obviously jarring about the divide, which reveals deficiencies in the rule adoption process. The ABA has an interest in persuading courts to adopt not only its Model Rules but also its interpretations of those rules, so the result seems to reflect a …

Some Reflections On Ethics And Plea Bargaining: An Essay In Honor Of Fred Zacharias, R. Michael Cassidy

San Diego Law Review

Dedication to the Ethics and Plea Bargaining works of Prof. Fred Zacharias.

Our Federalism: The United States And The Regulation Of Lawyers, Michael J. Churgin

San Diego Law Review

Dedication to the works of Prof. Fred Zacharias.

The Zealous Prosecutor As Minister Of Justice, Bennett L. Gershman

San Diego Law Review

As my contribution to this Memorial tribute to Professor Fred Zacharias, I have chosen to write about Fred’s 1991 article in the Vanderbilt Law Review entitled Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecutors Do Justice?. I have always seen this article as a classic, one of the finest and most important discussions of the special role of the prosecutor in the criminal justice system and of the meaning of the prosecutor’s ethical duty to “do justice.” This article is cited repeatedly for numerous points: the conception of the prosecutor’s duty not to win a case but to see …

Confidentiality Explained: The Dialogue Approach To Discussing Confidentiality With Clients, Elisia M. Klinka, Russell G. Pearce

San Diego Law Review

This Article offers an alternative dialogue approach. Rather than view the issue of explaining confidentiality either as a strategy for gaining client trust or an obligation necessary to comply with certain legal obligations, we propose understanding it as a key element in creating a relationship of dialogue grounded in honesty and mutual respect.

In doing so, we build on the work of the late Fred Zacharias, whose scholarship in this area provides both pathbreaking empirical insights and unwavering commitment to respecting client dignity. Among Zacharias’s contributions are his oft-cited empirical study suggesting that lawyers wrongly assume that clients would not …

Images And Aspirations: A Call For A Return To Ethics For Lawyers, Robert P. Lawry

San Diego Law Review

Dedication to the works of Prof. Fred Zacharias.

Fred Zacharias And A Lawyer's Attempt To Be Guided By Justice: Flying With Harry Potter And Understanding How Lawyers Can Prosecute The People They Represent, Randy Lee

San Diego Law Review

This Article seeks to embrace Professor Zacharias’s call for lawyers to consider more deeply what it means for a lawyer—and here particularly a government lawyer—to do justice. In so doing, it recognizes two parameters that Professor Zacharias wisely established for this task: first, that lawyers need direction that is concrete in how to behave as lawyers; and second, that lawyers can understand “justice,” “fairness,” and “truth” to be amorphous concepts and that lawyers may even attempt to define those terms with equally amorphous words. This Article also recognizes, however, that although justice, fairness, and truth can be reduced to abstraction, …

Taking The Ethical Duty To Self Seriously: An Essay In Memory Of Fred Zacharias, Samuel J. Levine

San Diego Law Review

This essay delineates a three-tiered approach that incorporates not only the lawyer’s duty to the client and to society, but also the lawyer’s obligation to take into consideration the duty to self, which includes fidelity to the lawyer’s personal ethical values and commitments. In addition, rather than placing the various interests in hierarchical opposition, requiring that one duty invariably prevail over the others, the three-tiered approach looks to consider ways in which competing interests might balance or, at times, be reconciled with one another. To illustrate the three-tiered approach to the lawyer’s ethical obligations, this essay focuses on the lawyer’s …

Ensuring Public Trust At The Municipal Level: Inspectors General Enter The Mix, Patricia E. Salkin, Zachary Kansler

Scholarly Works

Although federal, state and local government officials are subject to applicable codes of ethical conduct and are under the jurisdiction of ethics enforcement agencies created pursuant to these laws, ethics oversight agencies are limited in the breadth and scope of covered activities. With an increase in reported allegations of corruption, particularly at the local government level, this article explores the addition of the audit function, through inspectors general, to ensure greater transparency and accountability of public officials.

The article begins with a very brief historical overview of the emergence of the inspector general concept in Europe and its adoption in …

Ethical Issues In Business And The Lawyer's Role, Robert J. Rhee, Carol Morgan, Tamar Frankel, Mark Fagan

UF Law Faculty Publications

The remarks by Professor Rhee "The Stand Alone Course Approach to Teaching Business Ethics," Professor Morgan "Teaching Business Ethics in Transactional Skills Courses: An Integrated Approach," and Professors Tamar Frankel and Mark Fagan "Teaching Business Ethics: A Collaborative Approach" were made at the conference on "Transactional Education: What's Next?" held at Emory University School of Law, June 4, 2010.

Unpacking The Apprenticeship Of Professional Identity And Purpose: Insights From The Law School Survey Of Student Engagement, Carole Silver, Amy Garver, Lindsay Watkins

Articles by Maurer Faculty

Drawing on data from the Law School Survey of Student Engagement, this paper investigates the ways in which law students develop a sense of professional identity and purpose, the third apprenticeship identified by the Carnegie Foundation in its report, Educating Lawyers. The data offer only a first step toward unpacking how students learn about professional identity and purpose. Generally, the findings point to the importance of law school classes for effective learning about legal ethics, and to the role of clinical legal education as a means for deepening the effectiveness of lessons about ethics, professional identity and purpose.

Enforcement Of Law Schools' Non-Academic Honor Codes: A Necessary Step Towards Professionalism?, Nicola A. Boothe-Perry

Journal Publications

As law schools strive to enforce their codes of student conduct, enforcement has called into question the legal standing of the schools, since enforcement affects the fundamental rights of students. Consequently, this Article will address the following question: to what extent can law schools fulfill their responsibility and opportunity to enforce behavioral codes-specifically codes governing non-academic conduct-with a goal of improving professionalism? Through analysis of law schools' enforcement capabilities, this Article will suggest a practical framework by which law schools can promulgate and enforce codes and rules affecting students' non-academic conduct.

Practical Ethics For The Professional Prosecutor., Enrico B. Valdez

St. Mary's Journal on Legal Malpractice & Ethics

In Brady v. Maryland, the United States Supreme Court held that the prosecution's withholding of material exculpatory evidence violated the defendant's due process rights regardless of the absence of bad faith. The implications of this duty can be seen in the case of John Thompson, a man who was convicted of murder in Louisiana in 1985 after the prosecution failed to turn over exculpatory evidence. Thompson was able to get his conviction reversed and subsequently sued the district attorney's office. This Article analyzes Brady and the decisions that followed it to outline the obligations of prosecutors who are in possession …

From Hero To Villain: The Corresponding Evolutions Of Model Ethical Codes And The Portrayal Of Lawyers In Film, Amy S. Beard

NYLS Law Review

No abstract provided.

Chasing The Greased Pig Down Wall Street: A Gatekeeper’S Guide To The Psychology, Culture And Ethics Of Financial Risk-Taking, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

The current financial crisis has once again focused attention on lawyers, corporate directors and auditors as gatekeepers, who are expected to introduce some degree of cognitive independence to the task of risk assessment and risk management in public companies, including financial services firms. This essay examines the psychological and cultural forces that may distort risk perception and risk motivation in hyper-competitive firms, beyond the standard economic incentives associated with agency costs and moral hazards, warning gatekeepers against too easily assuming that all is well when insiders display high levels of intensity, focus and devotion to hard-to-achieve goals. In fact, these …

Ethical Issues In Business And The Lawyer's Role, Carol Morgan, Robert Rhee, Tamar Frankel, Mark Fagan

Scholarly Works

This is a transcript of a panel discussion on teaching Business Ethics.

An Article We Wrote To Ourselves In The Future: Early 21st Century Views On Ethics And The Internet., David Hricik, Prashant Patel, Natasha Chrispin

St. Mary's Journal on Legal Malpractice & Ethics

Written from the viewpoint of the year 2050, this Article discusses the clash between legal ethics and the technological revolution of the early twenty-first century. As a result of ethics rules being applied to new technologies in ways never contemplated under traditional circumstances, lawyers had to be overly cautious when they used the Internet to correspond with or seek out clients, or otherwise promote their legal services. The lesson learned is that the legal community should reflect on the harm caused by over zealous regulation and take a more reasoned approach to the use of technology for the benefit of …

Tax Lawyers, Tax Defiance, And The Ethics Of Casual Conversation,, Michael Hatfield

Articles

This essay is to help tax lawyers decide how to handle casual conversations centered on denying, defying, or destroying the tax system. One option is to walk away, ending the conversation and silencing the dialogue. The next option is to engage. I want to persuade tax lawyers that they should usually engage in the conversation. I try to do this in Part III.

There are two kinds of legal ethics essays, and one must choose which kind to write, and it is useful to the reader to know upfront which kind the author chose to write. One kind begins with …

Steven M. Schneebaum On The Death Penalty And Human Rights. By Sir Fred Phillips. Q.C. Kingston, Jamaica: Caribbean Law Publishing Company. 2009. 101pp., Steven M. Schneebaum

Human Rights & Human Welfare

A review of:

The Death Penalty and Human Rights. By Sir Fred Phillips. Q.C. Kingston, Jamaica: Caribbean Law Publishing Company. 2009. 101pp.

A Conflict By Any Other Name Would Smell As Foul: A Comment On The Appointment Of A Vice-President Of Pfizer To The Cihr Governing Council, Jocelyn Downie

Articles, Book Chapters, & Popular Press

If one had to pick the pharmaceutical company most associated with unethical and illegal conduct this past year, it would likely be Pfizer. So it seems reasonable to respond with disbelief and outrage to the federal government’s October 5, 2009 appointment of Dr. Bernard Prigent – Vice President, Medical Director and registered lobbyist for Pfizer Canada – to the Canadian Institutes of Health Research Governing Council (CIHR GC). This is the body that sets the strategic direction for most federally funded health research in Canada. A senior executive from a for-profit pharmaceutical company should not be given a seat at …

Making Stuff Up, Richard H. Underwood

Law Faculty Scholarly Articles

Beginning with an article in this Journal almost thirty years ago, Professor Underwood continues to research and write about legal ethics and litigation. In this Commentary, he offers a witty look at several cases where, in his opinion, the judge allowed improper arguments to the jury.

Misunderstanding Lawyers' Ethics, Monroe H. Freedman, Abbe Smith

Michigan Law Review

The title of Daniel Markovits's book, A Modern Legal Ethics, gives the impression that it is a comprehensive treatise on contemporary lawyers' ethics. The contents of the book, however, are both more limited and more expansive than the title suggests. Markovits's treatment of lawyers' ethics concerns itself with what he conceives to be the pervasive guilty conscience of practicing lawyers over their "professional viciousness" (p. 36), and how lawyers can achieve a guilt-free professional identity "worthy of ... commitment" (p. 2). Markovits's goal in the book is to "articulat[e] a powerful and distinctively lawyerly virtue" (p. 2), one that …

Teaching Public Citizen Lawyering: From Aspiration To Inspiration, Mae Quinn

Journal Articles

A longtime social justice activist and clinical professor, Douglas Colbert,2 recently sought information from colleagues across the country3 for the second part of an important project examining a lawyer’s ethical obligation to engage in pro bono work during a time of crisis, such as the aftermath of Hurricane Katrina or 9/11.4 He sent out surveys to learn which schools actually taught the Preamble to the ABA Model Rules of Professional Conduct in ethics or other courses.5 As Professor Colbert’s letter explained, the Preamble states: “A lawyer, as a member of the legal profession, is a representative of clients, an officer …