Legal Ethics and Professional Responsibility Commons^™

Designing And Improving A System Of Proactive Management-Based Regulation To Help Lawyers And Protect The Public, Susan Saab Fortney

Faculty Scholarship

Increasingly, lawyers and decision-makers are recognizing the limitations and consequences of current approaches to attorney regulation. Inspired by developments in other countries, regulators in the United States and Canada have started the process of exploring innovative approaches, including proactive management-based regulation. The term, proactive-management regulation (PMBR), was first used by Professor Ted Schneyer to refer to a regulatory approach designed to promote ethical law practice by assisting lawyers with practice management.

The seed for PMBR was first planted in the Australian state of New South Wales (NSW). It grew out of the legislation that allowed limited liability and non-lawyer ownership …

Family Defense And The Disappearing Problem-Solving Court, Jane M. Spinak

Faculty Scholarship

Problem-solving courts began to flourish in the early 1990s with the creation of criminal drug courts as alternatives to standard criminal court practices. In the drug courts, defendants would receive treatment rather than incarceration and be monitored closely within the court. Family Court Treatment Parts (FCTPs) were developed in the late 1990s in New York State, fully embracing the three key components of the problem-solving drug court model: (1) an activist judge who helps to fashion, and then closely monitor, dispositions; (2) a team of lawyers, social workers, and court personnel who try to identify and then work toward commons …

Insights From Psychology: Teaching Behavioral Legal Ethics As A Core Element Of Professional Responsibility, Tigran W. Eldred

Faculty Scholarship

The field of behavioral legal ethics—which draws on a large body of empirical research to explore how subtle and often unconscious psychological factors influence ethical decision-making by lawyers—has gained significant attention recently, including by many scholars who have called for a pedagogy that incorporates behavioral lessons into the professional responsibility curriculum. This Article provides one of the first comprehensive accounts of how law teachers can meet this challenge. Based on an approach that employs a variety of experiential techniques to immerse students in the contextual and emotional aspects of legal practice, it provides a detailed model of how to teach …

Lawyer Ethics And The Financial Action Task Force: A Call To Action, John P. Sahl

Akron Law Faculty Publications

This article examines the ethical responsibilities of lawyers in the context of global anti-money laundering (AML) efforts, particularly focusing on the role of the Financial Action Task Force (FATF). It discusses the implications of FATF's recommendations for the legal profession and emphasizes the need for lawyers to actively engage in combating financial crimes. The author argues that lawyers must balance their duty to uphold client confidentiality with the imperative to prevent illicit financial activities. The article calls for the legal community to adopt proactive measures, including enhanced due diligence and compliance protocols, to align with international AML standards. By doing …

Conceptions Of Agency In Social Movement Scholarship: Mack On African American Civil Rights Lawyers [Comments], Susan Carle

Scholarly Articles in Law Reviews & Journals

This essay examines the theory of individual agency that propels the central thesis in Kenneth Mack's Representing the Race: The Creation of the Civil Rights Lawyer (2012)-namely, that an important yet understudied means by which African American civil rights lawyers changed conceptions of race through their work was through their very performance of the professional role of lawyer. Mack shows that this performance was inevitably fraught with tension and contradiction because African American lawyers were called upon to act both as exemplary representatives of their race and as performers of a professional role that traditionally had been reserved for whites …

Cracks In The Profession's Monopoly Armor, John Sahl

Akron Law Faculty Publications

This article examines the legal profession’s long-held monopoly in the nation’s legal services market in the context of two recent developments. The first development concerns the Conference of Chief Justices’ (CCJ) recent adoption of Resolution 15, “Encouraging Adoption of Rules Regarding Admission of Attorneys Who Are Dependents of Service Members.” Resolution 15 urges state bar authorities to develop and implement rules permitting admission without examination of lawyers who are military dependents. The CCJ’s rule promotes competition by facilitating the movement of lawyers from one geographic market to another.

The second development is Washington Supreme Court’s new Admission to Practice Rule …

Real Metamorphosis Or More Of The Same: Symposium Introduction: Navigating The Practice Of Law In The Wake Of Ethics 20/20 – Globalization, New Technologies, And What It Means To Be A Lawyer In These Uncertain Times, John P. Sahl

Akron Law Faculty Publications

This symposium introduction examines the transformative effects of globalization and technological advancements on the legal profession, contextualized within the American Bar Association's Ethics 20/20 initiative. The author discusses how these forces challenge traditional notions of legal practice, professional responsibility, and ethical standards. By analyzing the intersection of emerging technologies, cross-border legal issues, and evolving client expectations, the article sets the stage for a series of scholarly contributions addressing the future of lawyering in an increasingly complex and interconnected world. The introduction emphasizes the need for the legal profession to adapt proactively to maintain its commitment to justice, competence, and ethical …

Legal Ethics Versus Political Practices: The Application Of The Rules Of Professional Conduct To Lawyer-Politicians, Andrew Martin

Articles, Book Chapters, & Popular Press

Canadian legal ethics has paid little attention to how the rules of professional conduct for lawyers apply to lawyer-politicians – that is, politicians who happen to be lawyers. This article addresses this issue with reference to what Canadian case law and commentary do exist, supplemented by more plentiful American materials. It proposes a distinction between conduct that is politically expedient and conduct in which lawyer-politicians’ duties as lawyers come into apparent conflict with their duties of office. Canadian case law reveals three conflicting approaches to this latter category: that the duties of a lawyer prevail, that the duties of a …

Chasing The Atticus Code - Preserving Adjudication Integrity In Local Administrative Hearings , Michael N. Widener

Journal of the National Association of Administrative Law Judiciary

In the United States administrative law realm, there purportedly exist more than 19 thousand municipal governments, 16 thousand town or township governments; three thousand county governments, 13 thousand school districts and 35 thousand special district governments. This essay argues that these local adjudicative loci largely neglect the ethical guidance or direction of lawyers serving in government-official capacities without holding elected nor judicial positions. I dub these decision-makers “Atticus.” Citizens support the notion of external codes of professional responsibility for such persons not necessarily because they believe that “lawyering rules” are well constructed or property enforced, but because they doubt lawyers …

How To Make Rules For Lawyers: The Professional Responsibility Of The Legal Profession, Stephen Gillers

Pepperdine Law Review

When considering the professional responsibilities of American lawyers, two questions often arise: (1) whether a particular rule strikes the right balance among the multiple interests it purports to reconcile and (2) whether in a particular circumstance a lawyer's or law firm's behavior complied with the governing rules. This article explores a third question. What is the responsibility of the profession itself when, through its various institutions and especially bar associations, it asks courts, lawmakers, or agencies to adopt particular rules governing the conduct of lawyers? Rather than exploring the discussing the conduct of individual lawyers or the correctness of any …

Ethics In Legal Education: An Augmentation Of Legal Realism, Gerald R. Ferrera

Pepperdine Law Review

No abstract provided.

Financiers As Monitors In Aggregate Litigation, Elizabeth Chamblee Burch

Scholarly Works

This Article identifies a market-based solution for monitoring large-scale litigation proceeding outside of Rule 23’s safeguards. Although class actions dominate the scholarly discussion of mass litigation, the ever increasing restrictions on certifying a class mean that plaintiffs’ lawyers routinely rely on aggregate, multidistrict litigation to seek redress for group-wide harms. Despite sharing key features with its class action counterpart—such as attenuated attorney-client relationships, attorneyclient conflicts of interest, and high agency costs—no monitor exists in aggregate litigation. Informal group litigation not only lacks Rule 23’s judicial protections against attorney overreaching and self-dealing, but plaintiff’s themselves cannot adequately supervise their attorneys’ behavior. …

The Litigation Finance Contract, Maya Steinitz

Faculty Scholarship

Litigation funding-for-profit, nonrecourse funding of a litigation by a nonparty-is a new and rapidly developing industry. It has been described as one of the "biggest and most influential trends in civil justice" today by RAND, the New York Times, and others. Despite the importance and growth of the industry, there is a complete absence of information about or discussion of litigation finance contracting, even though all the promises and pitfalls of litigation funding stem from the relationships those contracts establish and organize. Further, the literature and case law pertaining to litigation funding have evolved from an analogy between litigation funding …

Testimony For Sale: The Law And Ethics Of Snitches And Experts, George C. Harris

Pepperdine Law Review

No abstract provided.

Lawyers Judging Experts: Oversimplifying Science And Undervaluing Advocacy To Construct An Ethical Duty?, David S. Caudill

Pepperdine Law Review

My focus is on an apparent trend at the intersection of the fields of evidentiary standards for expert admissibility and professional responsibility, namely the eagerness to place more ethical responsibilities on lawyers to vet their proffered expertise to ensure its reliability. My reservations about this trend are not only based on its troubling implications for the lawyer’s duty as a zealous advocate, which already has obvious limitations (because of lawyers’ conflicting duties to the court), but are also based on the problematic aspects of many reliability determinations. To expect attorneys - and this is what the proponents of a duty …

Integrating "Alternative" Dispute Resolution Into Bankruptcy: As Simple (And Pure) As Motherhood And Apple Pie?, Nancy A. Welsh

Faculty Scholarship

Today, there can be little doubt that “alternative” dispute resolution is anything but alternative. Nonetheless, many judges, lawyers (and law students) do not truly understand the dispute resolution processes that are available and how they should be used. In the shadow of the current economic crisis, this lack of knowledge is likely to have negative consequences, particularly in those areas of practice such as bankruptcy and foreclosure in which clients, lawyers, regulators, and courts work under pressure, often with inadequate time and financial resources to permit careful analysis of procedural options. Potential negative effects can include: (1) impairment of a …

Behind Closed Doors: Shedding Light On Lawyer Self-Regulation--What Lawyers Do When Nobody's Watching, John Sahl

Akron Law Faculty Publications

This Article examines the significance of Professor Fred C. Zacharias’s work, What Lawyers Do When Nobody’s Watching: Legal Advertising as a Case Study of the Impact of Underenforced Professional Rules. Following the Introduction, Part II of the Article summarizes Nobody’s Watching – an empirically based study of lawyers in California who advertised in the yellow pages of telephone books. Part II reviews Professor Zacharias’ findings and analysis concerning unenforced or underenforced ethics rules regulating lawyer advertising. Part III discusses the significance of Nobody’s Watching as an early empirical study of lawyer advertising in the field of professional responsibility and its …

Circular 230: New Rules Governing Practice Before The Irs., C. John Muller Iv

St. Mary's Journal on Legal Malpractice & Ethics

This Article addresses the issue of tax preparer oversight. Currently, anyone may prepare a tax return for a fee. However, those preparers who are not lawyers, certified public accountants, or authorized to practice before the IRS are not required to meet a minimum standard of education, knowledge, training, or skill. After recent government studies revealed that these non-trained tax return preparers were making costly, egregious mistakes, the IRS proposed mandating oversight over any individual who prepares a tax return for compensation. This Article discusses, in depth, the Department of the Treasury's proposed regulations to broaden the authorities of IRS Circular …

Entertainment Law - The Specter Of Malpractice Claims And Disciplinary Actions, John Sahl

Akron Law Faculty Publications

There is significant risk today that lawyers will become the target of a disciplinary or legal malpractice action, especially given the complexity of the law and advances in technology that reduce the amount of time that lawyers have to reflect about client matters. This risk is heightened by the increased competition in the bar to deliver legal services in a cost-effective manner, the sophistication of clients who expect competent, efficient and reasonably priced services, and the litigious nature of consumers. The risk is further exacerbated by the ever-changing methods and rules for electronic communication and the storage of information. The …

Understanding Caperton: Judicial Disqualification Under The Due Process Clause, Dmitry Bam

Faculty Publications

It is virtually impossible to discuss the Supreme Court’s decision in Caperton v. A.T. Massey Coal Co. without hearing some variant of the following response: “I can’t believe it was as close as it was.” And it does not matter whether you are chatting with your next-door neighbor who had never thought about judicial ethics in his life or discussing the case with a judicial-recusal expert. Nearly everyone seems to agree: Caperton was an “easy” case and that four justices dissented is an indication that there is something terribly wrong. Not only has Caperton elevated the issue of judicial impartiality …

A 2010 Update: What Every Entertainment Lawyer Needs To Know - How To Avoid Being The Target Of A Legal Malpractice Claim Or Disciplinary Action, John P. Sahl

Akron Law Faculty Publications

There is significant risk today that lawyers will become the target of a disciplinary or legal malpractice action, especially given the complexity of the law and advances in technology that reduce the amount of time that lawyers have to reflect about client matters. This risk is heightened by the increased competition in the bar to deliver legal services in a cost-effective manner, the sophistication of clients who expect competent, efficient and reasonably priced services, and the litigious nature of consumers. The risk is further exacerbated by the ever-changing methods and rules for electronic communication and the storage of information. The …

Foreword: The New Era- Quo Vadis?, John Sahl

Akron Law Faculty Publications

The Inaugural MBI Symposium’s twenty-six participants highlight many important developments and challenges caused by MJP and new technologies. Their assessments and suggestions provide a helpful roadmap for lawyers and regulators to negotiate the increasingly complex, fast-paced, and ethically risky landscape for delivering legal services. Several panelists suggested regulatory reforms that range from the creation of a regulatory framework for lawyers engaged in crossborder practice to the creation of standards for the supervision of offshore outsourced legal services268 and the mining of metadata. Some of the panelists’ suggestions and reforms are especially important given the “high [financial] stakes” involved in the …

A Golden-Age Of Civil Involvement: The Client-Centered Disadvantage For Lawyers As Law Makers, James E. Moliterno

Scholarly Articles

None available.

Attorney Referral, Negligence, And Vicarious Liability, Bruce Ching

Journal Articles

As a consequence of requests from clients or prospective clients, lawyers are often placed in a position of giving referrals, especially in situations of cross-specialty referrals (such as an estate planning attorney whose longtime client has become a party in a personal injury lawsuit) or cross-jurisdictional referrals (such as an attorney in Michigan who is contacted by a prospective client who must respond to a lawsuit that was filed in Ohio).

But if the lawyer who receives the referral commits malpractice in handling the case, can the lawyer who made the referral be held liable for the client's loss? This …

Lawyering In The Academy: The Intersection Of Academic Freedom And Professional Responsibility, Peter A. Joy

Scholarship@WashULaw

The legal academy has given little thought to how practicing law within law schools affects professional responsibilities and is different from representing clients in a traditional law firm or how notions of academic freedom affect lawyering in law schools. Yet repeated attempts to interfere with law clinic representation starkly illustrate how lawyering in the academy might be different, under notions of professional responsibility and academic freedom, from other lawyering or typical law teaching.

Scholarship on interference in clinical programs has focused primarily on the impropriety of interference on the institutional autonomy of law schools by those outside the university, such …

Deception In Undercover Investigations: Conduct-Based Vs. Status-Based Ethical Analysis, Barry R. Temkin

Seattle University Law Review

As part of the public school system, online schools “have a responsibility to provide equal access to [their] educational opportunities[,] and restricting access to these opportunities can be problematic, if not illegal.” Given the rapid growth of online education in Washington, legislators must examine whether online schools that receive public education funding are benefiting the entire public or are benefiting merely a select group of students. Part II of this Comment briefly discusses the history of online schools in Washington, including how they receive funding within Washington's unique statutory and regulatory framework. Part III then examines how online schools discriminate …

Profits And Professionalism, Deborah Rhode

Fordham Urban Law Journal

This Article looks at the financial effect of ethics work. The author examines to what effect and under what circumstances “ethics pays,” and what can be done to increase the rate of return. The article studies this issue in three different contexts. First, it looks at workplace cultures and professional values. The author tries to find how the legal professional can create more organizational structures in which adhering to principles serves prudential interests. The second context is pro bono work. Here, the author looks at the pro bono benefits to, the lawyer, and legal employer, as well as the costs …

The Nirvana Fallacy In Law Firm Regulation Debate, Elizabeth Chambliss

Fordham Urban Law Journal

This Article addresses self-regulation in the legal industry. Lawyers have traditionally resisted the benefits of bureaucratic management. This Article highlights that many lawyers fear that centralized management controls with regard to regulation will undermine individual accountability. This article does not agree with that sentiment. This article uses data to suggest that centralized management, i.e. specialists in charge, may significantly improve individual accountability and compliance with professional rules. This article really reviews what it feels like are misconstrued assumptions about regulation at law firms. This Article argues that the nostalgia for an idealized collegial form has prevented legal scholars and regulators …

The Professionalization Of Ethics, Margaret Raymond

Fordham Urban Law Journal

This Article looks at the importance of teaching law graduates to be ethical lawyers. The author hypothesizes that the current versions of the ethical rules and the structure of law firms have the potential to encourage the professionalization of ethics rather than connecting all practitioners to the values of professional responsibility. This Article sets out the factors that contribute to the increased professionalization of professional responsibility in large law firms. These factors are the need for lawyers to always be accessible, the pressure to specialize in a specific field, and the complexity of the ethics rules as written. The author …

Marilyn & Ed Bellet: A Dedication, William Michael Treanor

Fordham Urban Law Journal

This Essay was a dedication to Ed and Marilyn Bellet, benefactors of Fordham Law’s ethics and professionalism programs. The Bellets created the Louis Stein Center for Law and Ethics, which educates both the public and lawyers about the importance of the rule of law. The author examines the life of the Bellets and their commitment to Fordham Law.