Legal Ethics and Professional Responsibility Commons^™

The Lawyer As Informer, Gerard E. Lynch

Faculty Scholarship

From the schoolyard "tattletale" to the police officer's "confidential informant" to the Pentagon "whistle blower," our society is deeply ambivalent toward those who report the wrongdoing of others to the authorities. On the one hand, society values informers. Without informers, serious misbehavior would certainly escape correction. The police officers' code of silence with respect to fellow officers' crimes, for example, may be a major obstacle to eliminating police corruption and brutality. On the other hand, society scorns informers as betrayers of confidence. Even one who violates an antisocial pact such as the police officers' code of silence is viewed as …

Taking And Pursuing A Case: Some Observations Regarding "Legal Ethics" And Attorney Accountability, Richard H. Underwood

Law Faculty Scholarly Articles

This Article addresses some of the potential liabilities that may arise from an attorney's decision to decline, refer, undertake, continue or discontinue the prosecution of a civil action. This Article suggests that counsel's obligations to his or her client, adversary, and fellow members of the bar, as well as to the judiciary and the justice system, can be balanced without subjecting attorneys to liability. This balance can be attained, however, only if potential problems are spotted and minimal precautions are taken.

Yellow Pages Legal Ads In Texas: The Complexities Of Dr 2-101(B) & (And) (C)., Vincent Robert Johnson

St. Mary's Law Journal

This Article explains how attorneys can avoid private reprimands for advertisements in the Yellow Pages pursuant to subsection (B) and (C) of the Texas Code of Professional Responsibility Disciplinary Rule 2-101, given there is no scholarship or precedent. Subsection (B) requires an advertisement to include the name of a lawyer who is licensed to practice law in Texas, who will be responsible for performing the legal service, and the areas of law in which they practice. Subsection (C) requires detailed statements be included concerning whether the individuals named in compliance with subsection (B) are certified with the Texas Board of …

Ethical Considerations For The Justice Department When It Switches Sides During Litigation, Clifford Freed

Seattle University Law Review

This Comment briefly discusses the history of Washington v. Seattle School District No. 1, and then demonstrates the difficulties in applying the present ABA Code of Professional Responsibility to certain ethical questions that can arise when the government changes its allegiance in the midst of litigation. The ethical propriety of the Department of Justice's actions is examined, and alternatives are proposed for situations in which the United States, represented in court by the Justice Department, switches sides in the same case.

Book Review, Mark J. Loewenstein

Publications

No abstract provided.

The Professional Responsibility Of Teachers Of Professional Responsibility, Thomas L. Shaffer

University of Baltimore Law Forum

No abstract provided.

Legal Ethics And Class Actions: Problems, Tactics And Judicial Responses, Richard H. Underwood

Law Faculty Scholarly Articles

Perhaps no procedural innovation has generated more controversy than the class action. As Professor Arthur Miller has observed, debate over “class action problem[s]” has raged at several different levels. For example, opponents and proponents of class actions disagree on whether such actions produce socially desirable results in an economical fashion and whether an already overburdened judiciary can handle the additional supervisory demands of the class action. Recently, a somewhat more ideological dialogue has addressed the merit of publicly funded class actions. Such questions arise only indirectly in the context of class action litigation. However, a certain hostility toward class actions …

Adversary Ethics: More Dirty Tricks, Richard H. Underwood

Law Faculty Scholarly Articles

In this article the author provides a primer on the more common forms of cheating employed by trial lawyers. Another purpose is to suggest that there are antidotes that may be administered to curb these abuses, assuming that trial attorneys are alert enough to invoke them, and trial judges are willing to apply them.

Curbing Litigation Abuses: Judicial Control Of Adversary Ethics—The Model Rules Of Professional Conduct And Proposed Amendments To The Rules Of Civil Procedure, Richard H. Underwood

Law Faculty Scholarly Articles

This Article addresses the effectiveness of recent developments and proposals related to abusive litigation, and discusses them in the context of recent opinions illustrating the power of the trial judge to control the excesses of the adversary system. It rejects the countersuit as a time-consuming and costly means of controlling litigation abuses, and concludes that “tinkering changes” in the rules of procedure cannot bring about true reform. It is urged here that the burden resulting from abuse of litigation can only be relieved by changes which foster stronger judicial control of adversarial ethics, and greater judicial involvement in the pretrial …

Professional Responsibility—Lawyer Advertising—Restrictions Must Be Narrowly Drawn To Serve Substantial State Interest, James Gerard Schulze

University of Arkansas at Little Rock Law Review

No abstract provided.

The Doctor And His Lawyer: Conflicts Of Interest, Richard H. Underwood

Law Faculty Scholarly Articles

This Article will not survey and catalog all available cases dealing with the "insurance counsel's tightrope." Instead, it will focus on the identification and resolution of conflicts of interest that may arise at various stages of the litigation of a medical malpractice action in which a lawyer has been retained to represent the interests of both the physician policy-holder and his insurance carrier. Many of the problems examined are applicable to all insurance defense litigation, and the combination of large claims and complex issues presented in medical malpractice cases, together with the distrust of lawyers shared by many doctors, provides …

Solicitation And The Uncertain Status Of The Code Of Professional Responsibility In Kentucky, Eugene R. Gaetke

Law Faculty Scholarly Articles

In 1969 the Kentucky Supreme Court adopted the American Bar Association's Code of Professional Responsibility as the disciplinary rules binding upon attorneys practicing in the state. The Court adopted the Code as an apparent attempt to provide the Kentucky bench and bar the certainty and guidance offered by a codification of the frequently subjective and occasionally nebulous body of law known as legal ethics. The Court used particular language in its rule adopting the Code, however, which renders uncertain the precise status of the Code in Kentucky. As a result, a conscientious practitioner in Kentucky cannot confidently look to the …

Kentucky Law Survey: Professional Responsibility, Eugene R. Gaetke, Rebecca G. Casey

Law Faculty Scholarly Articles

In the face of persistent criticism of the legal profession, from within as well as without, the Kentucky Supreme Court exhibits a certain degree of ambivalence toward issues of professional responsibility. This ambivalence manifests itself in two ways.

First, the Court's treatment of different categories of professional misconduct seems at times unjustifiably inconsistent. The Court reacts to certain misconduct in an almost uniformly harsh manner, evincing the attitude of a strict disciplinarian for the practicing bar. Occasionally, however, the Court responds to various other kinds of equally gross misconduct with apparently undue leniency. In such cases the Court seems to …

Solicitation And The Uncertain Status Of The Code Of Professional Responsibility In Kentucky, Eugene R. Gaetke

Kentucky Law Journal

No abstract provided.

A Gathering Of Legal Scholars To Discuss The Professional Responsibility And The Model Rules Of Professional Conduct: Panel Discussion

University of Miami Law Review

No abstract provided.

How Far May A Lawyer Go In Assisting A Client In Legally Wrongful Conduct?, Geoffrey C. Hazard Jr.

University of Miami Law Review

Professor Hazard discusses the dimensions of the lawyer conduct prohibited by DR 7-102(A)(7) of the Model Code of Professional Responsibility, which provides that a lawyer shall not "[c]ounsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent." After reviewing relevant principles of agency, tort, and criminal law, Professor Hazard concludes by asking whether it is this positive law outside of the Code that defines the scope of conduct prohibited by DR 7-102(A)(7), or whether the Code contains its own standard that, because of the nature of the lawyer-client relationship, permits lawyers to engage …

Are The Model Rules Unconstitutional?, Monroe H. Freedman

University of Miami Law Review

In this article, Professor Freedman condemns the provisions of the proposed Model Rules of Professional Conduct that would require a lawyer to reveal his client's perjury to a court. Viewing these provisions as an assault on the lawyer-client privilege and the adversary system, which are protected by the fifth and sixth amendments to the United States Constitution, Professor Freedman offers the American Lawyer's Code of Conduct, for which he served as the Reporter, as an alternative. Professor Freedman views the American Lawyer's Code as the preferable alternative to the present ABA Model Code of Professional Responsibility because the American Lawyer's …

The Function Of A Code Of Legal Ethics, L. Ray Patterson

University of Miami Law Review

The traditional view that the function of a code of legal ethics is to define the duties of lawyers and the rights of clients is based on the perception of the lawyer-client relationship as one of simple agency in which the lawyer has the utmost duty of loyalty to the client. The author suggests, however, that this perception is a fallacy that, by overlooking the fact that clients also have duties and lawyers also have rights, can result in antilegal rules of ethics. This result can be escaped, the author proposes, by integrating rules of ethics and rules of positive …

A Mandatory Pro Bono Service Standard-Its Time Has Come, Chesterfield H. Smith

University of Miami Law Review

Despite the efforts of ardent advocates such as Chesterfield Smith, former president of the American Bar Association, the legal profession has continually failed to adopt a rule requiring mandatory pro bono services. In this article, Mr. Smith proposes a definitive, yet flexible, pro bono rule to govern lawyers' conduct. The author explains that the flexible nature of such a rule will accommodate the individual circumstances of members of the bar while serving the needs of society.

The Code Of Professional Responsibility, The Kutak Rules, And The Trial Lawyer's Code: Surprisingly, Three Peas In A Pod, W. William Hodes

University of Miami Law Review

No abstract provided.

The Role Of The Law School In The Teaching Of Legal Ethics And Professional Responsibility, Warren E. Burger

Cleveland State Law Review

My thesis is simple and straightforward. Every law school has a profound duty-and a unique opportunity-to inculcate principles of professional ethics and standards in its students. This duty should permeate the entire educational experience beginning with the first hour of the first day in law school.

Love, Professional Responsibility, The Rule Of Law, And Clinical Legal Education, Steven H. Leleiko

Cleveland State Law Review

The primary purpose of this article is to explore the tensions which arise in persons who come to law school because they view the practice of law as an expression of their love and concern for people. In examining the underlying causes of these tensions, six related factors will be looked at: (1) the relationship between the values of traditional legal education and the support or lack of support which these values afford to the affective characteristics of students; (2) the role of one's job as a means of expressing love; (3) the role of job satisfaction in one's life; …

Disqualification Of An Attorney Representing Multiple Witnesses Before A Grand Jury: Legal Ethics And The Stonewall Defense, Nancy J. Moore

Faculty Scholarship

Prompted by the increasing recognition that certain economic and political conduct (such as consumer fraud, environmental pollution, and questionable campaign financing practices) has a profound effect on society, lawmakers have recently labelled as criminal "a whole range of political and business activities which, until recently, had been a more or less accepted part of American life."I Armed with both new statutes and a new aggressiveness in the enforcement of pre-existing statutes, 2 federal and state prosecutors have during the past ten years compiled an impressive record in the investigation and prosecution of white collar crime, organized crime and official corruption.3 …

Presuming Lawyers Competent To Protect Fundamental Rights: Is It An Affordable Fiction?, Robert G. Lawson

Law Faculty Scholarly Articles

This article explores the ramifications of Wainwright v. Sykes, a case decided before the Supreme Court of the United States in 1977. The broad question before the Court in Sykes concerned the extent to which state prisoners should have access to federal court by use of the writ of habeas corpus. The narrow issue before the Court concerned the impact on a prisoner's claim for habeas relief of procedural defaults (such as a failure to object to evidence, a failure to perfect an appeal, etc.) that occur in the state proceeding under attack. In considering these important issues Justice …

The Myth Of Legal Ethics, Eric Schnapper

Articles

The moral platitudes found in the Code of Professional Responsibility have little to do with legal ethics as actually enforced.

Legal Ethics And The Government Lawyer, Eric Schnapper

Articles

All litigation presents to some degree, real though not always perceived, a conflict between each attorney's responsibility as a representative of his or her client and as an officer of the court. Winning the case and seeing that justice is done must be inconsistent goals for counsel on at least one side in a case, if not on both. However substantial this problem may be regarded, it is certainly more complex for counsel for the government. Unlike a private attorney subject to dismissal for ignoring a client's wishes, counsel for the government often has, subject to the variables of intragovernmental …

Attorneys Must Not Enter Partnership Agreements Prohibiting Themselves From Representing Former Clients Upon Termination Of Partnership. Dwyer V. Jung, 133 N.J. Super. 343, 336 A.2d 498 (Ch. 1975), Appeal Docketed, No. 3378-74, App. Div., June 18, 1975., Robert L. Schonfeld

Fordham Urban Law Journal

Three attorneys entered into a partnership agreement for the practice of law. Their agreement included a provision that assigned the partnership's insurance carrier clients to individual partners upon the termination of the partnership and restricted the partners from doing business with a client designated as that of another partner for a period of five years. Of these insurance carrier clients, 154 were assigned to the defendant while five were allotted to the plaintiffs. After the partnership was dissolved, the plaintiffs sought a judicial accounting. The defendant counterclaimed, contending that the plaintiffs violated the restrictive covenant of the original partnership agreement …

Elliott E. Cheatham: His Contributions To A Developing Sense Of Professional Responsibility, Robert E. Mathews

Vanderbilt Law Review

It may not, after all, be difficult to be a nunc pro tunc prophet, but it takes real imagination to think of it. Hindsight is quite another matter; all of us are constantly explaining how a better decision years ago would have made for a happier world today. But to think in 1947 of assuming oneself to have been prophesying in 1897 as to what would be the state of affairs fifty years thence reveals an imaginative gift of some magnitude. Not only does it offer a sure-fire guaranty of accuracy of prediction, but also it dramatizes the fallibility of …

Attorney--Disciplinary Action--Mental Incapacity And Drunkenness In Mitigation Thereof, Robert Brand Stone

West Virginia Law Review

No abstract provided.

Class Gifts Of Future Interests: When Is Survival Required?, Herman L. Trautman

Vanderbilt Law Review

Because of recent significant developments, this article will under-take to deal with the requirement of survival in class gifts of future interests both with respect to the responsibility of a lawyer who plans an estate and with the problem confronting the courts in the many cases where either holographic wills are allowed or lawyers fail to discharge their professional responsibility concerning this litigious issue. By way of introduction, it will first stress the importance of a proper training for professional responsibility in this area. It will then attempt to provide a proper perspective for the courts to deal with the …