Legal Ethics and Professional Responsibility Commons^™

The Intersection Of Evaluation Be Mediators And Informed Consent: Warning The Unwary, Lela P. Love, John W. Cooley

Articles

No abstract provided.

The Ethics Of Copyrighting Ethics Rules, Michael S. Ariens

Faculty Articles

The American Bar Association’s (“ABA”) practice of requiring students to purchase the Model Rules of Professional Conduct is exploitative and unethical. The ABA uses its role in training lawyers to create a situation which all but requires law students and bar applicants to purchase the organization’s own Model Rules. The fact that the Model Rules constitute a substantial revenue stream for the ABA is due less to lawyers’ desire to brush up on Model Rules of Professional Conduct, which are not laws, than to the ABA's direct role in approving law schools and its indirect role in licensing lawyers.

Law …

The Culture Of Legal Denial, Jonathan R. Cohen

UF Law Faculty Publications

The goals of this essay are twofold. The first is to examine critically the practice of lawyers assisting clients in denying harms they commit and suggest some ways of changing that practice. Lawyers commonly presume that their clients' interests are best served by denial. Yet such a presumption is not warranted. Given the moral, psychological, relational, and sometimes even economic risks of denial to the injurer, lawyers should consider discussing responsibility taking more often with clients. The second is to explore several structural or systemic factors that may reinforce the practice of denial seen day in and day out within …

The Vocation Of International Arbitrators, Catherine A. Rogers

Faculty Scholarship

This Essay examines the vocation of the international arbitrator. I begin by evaluating, under sociological frameworks developed in literature on Weberian theories of the professions, how the arbitration community is organized and regulated. Arbitrators operate in a largely private and unregulated market for services, access to which is essentially controlled by what might be considered a governing cartel of the most elite arbitrators. I conclude my description with an account of how recently international arbitrators have begun to display a professional impulse, meaning efforts to present themselves as a profession to obtain the benefits of professionalization. Professional status is often …

Regulating International Arbitrators: A Functional Approach To Developing Standards Of Conduct, Catherine A. Rogers

Faculty Scholarship

Some scholars have protested that arbitrators are subject to less exacting regulation than barbers and taxidermists. The real problem with international arbitrators, however, is not that they are subject to less regulation, but that no one agrees about how they should be regulated. The primary reason for judicial and scholarly disagreement is that, instead of a coherent theory, analysis of arbitrator conduct erroneously relies on a misleading judicial referent and a methodologic failure to separate conduct standards (meaning those norms or rules that guide arbitrators' professional conduct) from enforcement standards (meaning those narrow grounds under which an arbitral award can …

Professional Responsibility Redesigned: Sparking A Dialogue Between Students And The Bar, Lois R. Lupica

Faculty Publications

In recent years, there have been many public and private, formal and informal complaints about the behavior of lawyers. Moreover, lawyers' tenuous reputation for honesty and integrity has been tarnished by recent, well-publicized scandals. The public, as well as members of the bench and bar, have further decried a decline in attorney professionalism. More than once, it has been suggested that in some way, failings of law schools are to blame. In response to these observations about the professional behavior of lawyers and as a result of the author's experiences of teaching a traditional, Socratic-method Professional Responsibility class for many …

Merit Vs. Ideology, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Even Judges Don't Know Everything: A Call For A Presumption Of Admissibility For Expert Witness Testimony In Lawyer Disciplinary Proceedings The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility., Timothy P. Chinaris

St. Mary's Law Journal

Today's practice environment is full of potential ethical pitfalls for even the most conscientious lawyer. The consequences of being found guilty of misconduct can include suspension or disbarment from practicing as a lawyer. Added to these concerns is the fact that the judge or hearing panel before whom the case is tried may not be intimately familiar with the particular ethics rules or how they are interpreted in different areas of practice. In order to mount an effective defense against the disciplinary charges, an accused lawyer may want to introduce expert testimony on his or her behalf. Unfortunately for the …

Lisa Schechtman On Reproductive Health And Human Rights: Integrating Medicine, Ethics, And Law By Rebecca J. Cook, Bernard M. Dickens, And Mahmoud F. Fathalla. Oxford: Oxford University Press, 2003. 554 Pp., Lisa Schechtman

Human Rights & Human Welfare

A review of:

Reproductive Health and Human Rights: Integrating Medicine, Ethics, and Law by Rebecca J. Cook, Bernard M. Dickens, and Mahmoud F. Fathalla. Oxford: Oxford University Press, 2003. 554 pp.

Fletcher's Rethinking: A Memoir, Kyron J. Huigens

Articles

No abstract provided.

Understanding New Hampshire’S Rule 4.2 As Applied To Corporate Litigants: An Explanation And Suggestions For Improvement, Heather Menezes

The University of New Hampshire Law Review

[Excerpt] “Consider this scenario: an attorney represents a client in litigation against a corporation. The attorney gets a call from an employee of that corporation and the employee says, “Everything in your complaint is absolutely correct.” However excited the attorney is to speak with this person, the Rules of Professional Conduct constrain whom the attorney can talk to if a corporation is involved in the pending litigation. In New Hampshire, any attorney can quickly find that Rule 4.2 prohibits contact with a represented party.1 But is this corporate employee a represented party? Even after reading the comment to the rule …

Can I Call Kimura Crazy?: Ethical Tensions In The Cultural Defense, Rashmi Goel

Sturm College of Law: Faculty Scholarship

Using the tragic case of Fumiko Kimura as a back drop, the author discusses the impact of culture on defendants and argues for a client-centered approach that considers the client beyond the walls of their legal issue. The author concludes her article with a discussion of legal ethics, advocating for a more well rounded vision of the client that includes both legal and cultural interests.

Leaders, Followers, And Free Riders: The Community Lawyer's Dilemma When Representing Non-Democratic Client Organizations, Michael Diamond, Aaron O'Toole

Fordham Urban Law Journal

This article explores various aspects of the dissonance between the democratic ideal and the reality of groups in disenfranchised and disempowered communities. The authors discuss the intersection of democracy and community action by examining the sociology of groups and the social psychology of leaders and followers. They also examine the role of, and choices presented to, an attorney working in a community and for a local community group.

Lisa Schechtman On Social Work And Human Rights: A Foundation For Policy And Practice By Elisabeth Reichert. New York: Columbia University Press, 2003. 295pp., Lisa Schechtman

Human Rights & Human Welfare

A review of:

Social Work and Human Rights: A Foundation for Policy and Practice by Elisabeth Reichert. New York: Columbia University Press, 2003. 295pp.

Popular Culture As A Lens On Legal Professionalism, Alex Scherr, Hillary Farber

Scholarly Works

Why use art to teach lawyering?' Despite divergences in method and intention, the two disciplines overlap. If the prevalence of lawyers in movies, television, literature, and even humor means anything, popular culture remains fascinated with lawyers. Our practices, our ethics, and our professional personae serve as a mine for image and narrative, a target for cultural critique, and a catalyst for expression. Not surprisingly, images of lawyers in cartoons, film, television, and literature offer unique opportunities to teach and explore professionalism. The proliferation of lawyer images in popular culture provides an array of material ranging from career choice to particular …

Smart Ethics: Ethical Considerations In Promoting Smart Growth Principles, Patricia E. Salkin

Scholarly Works

No abstract provided.

Taking Prosecutorial Ethics Seriously: A Consideration Of The Prosecutor's Ethical Obligation To Seek Justice In A Comparative Analytical Framework, Samuel J. Levine

Scholarly Works

This article examines the complex nature of the prosecutor's broad obligation to seek justice through a consideration of the similarly broad directive in Jewish law requiring that "in all [of] your ways acknowledge [God]." While many have critiqued the broad directives governing a prosecutor's ethical duties, through this comparative analytical framework it can be seen that the prosecutor's broad ethical directive to seek justice serves as a workable and appropriate standard for prosecutorial ethics. In many ways, a prosecutor faces an ethical obligation unlike other attorneys. Ethical obligations require that a prosecutor forgo conduct that would increase the likelihood of …

Lawyers Should Be Lawyers, But What Does That Mean?: A Response To Aiken & Wizner And Smith, Katherine R. Kruse

Scholarly Works

Lawyers should be more like social workers. That is the message of Law as Social Work, the provocative essay by Jane Aiken and Stephen Wizner (Aiken & Wizner) in the Washington University Journal of Law & Policy volume, which preceded the conference on Promoting Justice Through Interdisciplinary Teaching, Practice, and Scholarship, hosted by Washington University School of Law in March 2003. Almost as if in reply, Abbe Smith's contribution to the same pre-conference volume reasserts the importance of lawyers as zealous and partisan advocates, using the realities of the criminal defense context to argue for the value of the lawyer's …

The Obligation Of Legal Aid Lawyers To Champion Practice By Nonlawyers, Deborah J. Cantrell

Publications

No abstract provided.

Adr Ethics, Scott R. Peppet

Publications

No abstract provided.

Legal Malpractice In Texas: Examining Selected Cases And Forecasting Future Trrends Third Annual Symposium On Legal Malpractice & Professional Responsibility: Symposium Presentations., Wallace B. Jefferson

St. Mary's Law Journal

Little hard data exists concerning legal malpractice in Texas. What’s more, few legal law malpractice rulings are published. To date, there are only fifty written opinions on legal malpractice from Texas intermediate appellate courts. The activity that most often gave rise to a claim of legal malpractice involved the preparation, filing, and transmittal of documents, accounting for about a quarter of all claims. In San Antonio, Chief Justice Alma Lopez of the Fourth District Court of Appeals discussed common issues she sees in her courtroom. The issues ranged from failures to follow simple court rules to more substantial failures of …

Gambling With Ethics And Constitutional Rights: A Look At Issues Involved With Contingent Fee Arrangements In Criminal Defense Practice, Adam Silberlight

Seattle University Law Review

This Article attempts to shed light on the use of a contingent fee arrangement in criminal defense, and offers differing views pertaining to this topic. First, this Article will generally describe what a contingent fee is. Second, the role and potential application of the contingent fee in both criminal and civil settings will be discussed. Third, problems associated with such an arrangement in criminal defense practice will be addressed, as will certain positive aspects of such an arrangement. Finally, this article will discuss how lawmakers could address this issue to ensure that contingency arrangements cannot be abused.

The Ethical Obligation Of Transactional Lawyer To Act As Gatekeepers, Rutheford B. Campbell Jr., Eugene R. Gaetke

Law Faculty Scholarly Articles

Recent examples of managerial misconduct at major corporations have called into question the adequacy of the gatekeeper role provided by transactional lawyers representing corporations. That role is governed by Model Rule 1.13(b), which obligates the lawyer for a corporation to take remedial action if the lawyer knows that corporate managers are engaged in actions that amount to a "violation of a legal obligation" to the corporation or that are unlawful and likely to result in substantial injury to the corporation. In addition, Model Rule 1.2(d) forbids a lawyer from lending assistance to any action by corporate managers "that the lawyer …

Let's Put Ourselves Out Of Business: On Respect, Responsibility, And Dialogue In Dispute Resolution, Jonathan R. Cohen

UF Law Faculty Publications

This Essay works in two steps. I want to daydream with you about the future, or what I hope will someday be the future, of our dispute resolution movement. I want to then use these imaginings to reflect upon where we are today. I want to suggest something that may at first seem odd: Our ultimate goal should be to put ourselves, or virtually put ourselves, out of business. Eventually, I hope the time will come when we live in a society where the expert services of dispute resolution professionals, including not only lawyers and judges but also mediators and …

What Gets Judges In Trouble, Richard H. Underwood

Law Faculty Scholarly Articles

I wrote this article to collect some cautionary material about “what gets judges in trouble.” I wanted something I could offer to our state judges, practitioners, and my legal ethics students. While I have never been a judge, and while I have never worked for a judicial conduct organization, I have been a law professor for almost twenty-five years and the chairman of a state bar association ethics committee for fourteen. I am not the kind of person who would refrain from holding forth just because I may not know what I am talking about.

When I started out, I …

Racial Discrimination In Jury Selection: Professional Misconduct, Not Legitimate Advocacy, Lonnie T. Brown, Jr.

Scholarly Works

This Article examines the paradox between the adversary and disciplinary systems' outward condemnation of discrimination in jury selection and their apparent simultaneous inward acceptance of such conduct as legitimate advocacy.

Nova Scotia Barristers’ Society V Leahey, Innis Christie, G Wayne Beaton, Charles T. Schafer, David K. Macdonald, Philip J. Star

Innis Christie Collection

he Hearing Panel of the Hearing Subcommittee, empanelled by the Chair of the Hearing Subcommittee in accordance with Regulation 40 of the Nova Scotia Barristers’ Society Regulations (hereafter, "the Regulations") made under the authority in s. 59 of the Barristers and Solicitors Act, R.S.N.S 1989, as am.(hereafter, "the Act") to hear and decide this matter, consisted of:

G. Wayne Beaton, QC

David K. Macdonald

Dr, Charles T. Schafer

Philip J. Star, QC

Innis Christie, QC, Chair

The Panel met to hear evidence and submissions by counsel on July 9, 10, 11 and12, and on August 14, …

I Don't Have Time To Be Ethical: Addressing The Effects Of Billable Hour Pressure, Susan Saab Fortney

Faculty Scholarship

This article discusses the unintended consequences of the billable hour derby and suggests changes to address the deleterious effects of increasing billable hour requirements. A brief introduction identifies law firms’ recent tendency to increase the billable hour requirements to fund the heightened salaries of associates. This article analyzes the results from an empirical study focused on the effects of billable hour expectations and firm cultures. Part I generally reviews the study findings. Part II discusses the work and report of the ABA Commission, while Part III indentifies those issues and approaches that the ABA and firm managers should explore. Recognizing …

'What's Love Got To Do With It?' - 'It's Not Like They're Your Friends For Christ's Sake' : The Complicated Relationship Between Lawyer And Client, Robert J. Condlin

Faculty Scholarship

Should lawyers love their clients and try to be their friends? Highly regarded legal scholars have defended the “lawyer-as-friend” analogy in the past, although usually on the basis of a more contractual understanding of friendship than the understanding currently in vogue. These past efforts were widely criticized on a variety of grounds, and after a period of debate, support for the analogy appeared to wane. That is until recently, when other scholars, looking at the topic from a more religious perspective, have asserted a refined version of the friendship analogy as the proper model for lawyer-client relations. It is this …

A Response To Russell Pearce, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

There is not very much to criticize in what Professor Pearce has said about the MacCrate Report. Mostly, therefore, I will just amplify some of the points that I regard as among the most important. Before that, however, I want to mention some quibbles. First, I have always been bothered a bit when people describe the lawyer's role as that of a hired gun. The term “hired gun” is (if you'll pardon the expression) loaded. It does not, moreover, correctly capture either the good or the questionable of what lawyers actually try to do when representing their clients. Real hired …