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Articles 61 - 90 of 446
Full-Text Articles in Legal Ethics and Professional Responsibility
Secured Transaction History: Protecting Holmes' Notes Through The Conditional Sales Acts., George Lee Flint Jr.
Secured Transaction History: Protecting Holmes' Notes Through The Conditional Sales Acts., George Lee Flint Jr.
St. Mary's Law Journal
The historical explanation for the adoption of the conditional sales acts is woefully lacking. How and why the first conditional sales acts arose are investigated. Grant Gilmore, when presenting his theory, confessed ignorance concerning the origins of the conditional sale transaction, first known as Holmes’ notes. The failure of traditional legal historians to explain the passage of the conditional sales acts encourages inquiry into their legislative history to find an explanation. Pre-Act American decisions provide clues regarding the ratification of the acts. The courts provided three explanations for their passage: to treat the conditional sale as a chattel mortgage, to …
The South Texas Drought And The Future Of Groundwater Use For Hydraulic Fracturing In The Eagle Ford Shale., Taelor A. Allen
The South Texas Drought And The Future Of Groundwater Use For Hydraulic Fracturing In The Eagle Ford Shale., Taelor A. Allen
St. Mary's Law Journal
Texas has undergone a succession of historic droughts, each one creating unique problems and controversies. The state is also one of the largest national producers of oil and gas with the Eagle Ford Shale fields contributing to the production boom. The technique used to extract the oil is called hydraulic fracturing, which requires large volumes of water to be injected at high pressures to “frac” and release gas from an underground formation. The amount of water required places even greater strain on the regional water supply. This Comment highlights legal issues raised by the high volumes of groundwater used for …
Regulating The Behavior Of Lawyers In Mass Individual Representations: A Call For Reform., Richard Zitrin
Regulating The Behavior Of Lawyers In Mass Individual Representations: A Call For Reform., Richard Zitrin
St. Mary's Journal on Legal Malpractice & Ethics
Cases in which lawyers represent large numbers of individual plaintiffs are increasingly common. While these cases have some of the indicia of class actions, they are not class actions, usually because there are no common damages, but rather individual representations on a mass scale. Current ethics rules do not provide adequate guidance for even the most ethical lawyers. The absence of sufficiently flexible, practical ethical rules has become an open invitation for less-ethical attorneys to abuse, often severely, the mass-representation problem. It is necessary to reform the current rules, but only with a solution that is both practical and attainable, …
The Litigation Privilege In Texas., Sam Johnson
The Litigation Privilege In Texas., Sam Johnson
St. Mary's Journal on Legal Malpractice & Ethics
Certain Texas cases have arisen where one party in litigation sues the attorney representing an opposing party. In response to such cases, Texas courts promulgated a judicial doctrine generally referred to as the litigation privilege or qualified immunity in order to protect litigants’ right to zealous representation from their attorney. The general rule is that one party to a lawsuit cannot sue the other party’s attorney. However, exceptions to this doctrine exist. This article explores the contours of the litigation privilege in Texas by analyzing the primary Texas cases where one party’s claim against the opposing party’s attorney was dismissed …
Guilt By Association: How “Standby Co-Counsel” Exposes Attorneys To Malicious Prosecution Liability., Colleen V. Lisowski
Guilt By Association: How “Standby Co-Counsel” Exposes Attorneys To Malicious Prosecution Liability., Colleen V. Lisowski
St. Mary's Journal on Legal Malpractice & Ethics
Attorneys should not assume that lending their name to a case is a risk-free practice. The California appellate decision, Cole v. Patricia A. Meyer & Associates, answered the question of whether non-participating, standby co-counsel could be held liable for malicious prosecution by merely being listed as counsel of record. Cole established the clear message behind being aware of “co-counsel” risks. According to the court, co-counsel cannot escape liability if they failed to know enough about the case. By rejecting the “passive counsel” defense, Cole held that associated attorneys still have a duty to research the validity of a case even …
Evidentiary Standards In The Legal Malpractice Trial-Within-A-Trial., F. Parks Brown
Evidentiary Standards In The Legal Malpractice Trial-Within-A-Trial., F. Parks Brown
St. Mary's Journal on Legal Malpractice & Ethics
Like malpractice actions in general, the standards of proof required for each element of a legal malpractice claim evolved as legal malpractice claims became increasingly common. State and federal courts consequently produced a diverse range of opinions as jurisdictions continually adjust to evolving standards. The courts often seek to balance these standards of proof against their own precedent and the need to serve their particular notions of equity and justice. Perhaps the most contentious of these evolving standards of proof is the current state of the causation element, which is a critical test that must be satisfied to prevail in …
Getting Paid In Probate Court., Robert J. Augsburger
Getting Paid In Probate Court., Robert J. Augsburger
St. Mary's Law Journal
After reviewing the Texas Probate Code, the Texas Property Code, and current case law, this Essay compiles relevant information designed to assist attorneys in obtaining payment for services provided to their clients. An attorney ad litem is an officer of the court whose “fees are assessed as costs of suit” rather than requiring the ad litem to seek “fees only from his clients’ recovered shares.” Therefore, each attorney ad litem appointed under § 34A of the Texas Probate Code is entitled to reasonable compensation for services in the amount set by the court. The attorney’s fees “must be supported by …
The Advent Of State And Local Lobby Regulations And The Legal And Ethical Considerations For Attorneys., Ross Fischer, Jack Gullahorn
The Advent Of State And Local Lobby Regulations And The Legal And Ethical Considerations For Attorneys., Ross Fischer, Jack Gullahorn
St. Mary's Journal on Legal Malpractice & Ethics
Advocacy is the primary goal and responsibility of two distinct and well-regulated professions: the lawyer and the lobbyist, each of whom is subject to his own set of rules and regulations. This Article is designed to analyze the intersection of the lawyer’s Disciplinary Code with developing, rules governing advocacy in the policy-making arenas throughout Texas. Increasingly, the line between legal and legislative advocacy has become blurred as more local Texas entities turn to state lobby regulations for inspiration. This Article will consider the state Lobby Law, including its history and structure, as a framework for subsequent efforts to regulate lobbying …
“A Scout Is Trustworthy”: Applying Virtue Ethics To Lawyer Professionalism., Jeff Brown
“A Scout Is Trustworthy”: Applying Virtue Ethics To Lawyer Professionalism., Jeff Brown
St. Mary's Journal on Legal Malpractice & Ethics
This Article advocates the employment of the twelve-point Scout Law of the Boy Scouts of America as a professional ethics guide for lawyers. The Article begins by briefly relating the history of virtue ethics as a philosophical field of study and comparing and contrasting it with rule-based ethics. The Article continues with a brief history of the Scout Law. Finally, the Article explores how each of the twelve points of the Scout Law identifies a virtue relevant to the practice of law and how seeking to adhere to these virtues is crucial for attorneys hoping to lead a life of …
Keep Your “Friends” Close And Your Enemies Closer: Walking The Ethical Tightrope In The Use Of Social Media., John G. Browning
Keep Your “Friends” Close And Your Enemies Closer: Walking The Ethical Tightrope In The Use Of Social Media., John G. Browning
St. Mary's Journal on Legal Malpractice & Ethics
This Article will examine the ethical issues posed by lawyers’ use of social media platforms in light of the ABA Ethics Commission 20/20 changes to the Model Rules of Professional Conduct. Social networking has had a transformative effect both on the way society shares information and on the legal profession. Much of the discussion to date focuses on the discovery and use of evidence from social media sites in criminal cases and civil litigation, but attention must also be directed to the ethical quandaries posed by the legal profession’s use of social media. This Article will consider issues such as …
Arbitration Clauses In Fee Retainer Agreements., Chrissy L. Schwennsen
Arbitration Clauses In Fee Retainer Agreements., Chrissy L. Schwennsen
St. Mary's Journal on Legal Malpractice & Ethics
Due to the variety of approaches jurisdictions employ when determining the legal ramifications of arbitration clauses in fee retainer agreements, it’s best to include an explanation of the legal consequences of arbitration in the agreements. The attorney can, and should, fully explain the potential benefits of arbitration to clients. State courts take various viewpoints on the issue, and most stand contrary to the position of the American Bar Association (ABA) and state ethics committees on the subject. Consequently, attorneys must disclose truthful and accurate information regarding arbitration agreements when engaged in multijurisdictional practice in order to ensure protection from malpractice …
The Limited Power Of The Bar To Protect Its Monopoly., Zachary C. Zurek
The Limited Power Of The Bar To Protect Its Monopoly., Zachary C. Zurek
St. Mary's Journal on Legal Malpractice & Ethics
The weaknesses within unauthorized practice of law (UPL) laws, coupled with shaky and fragmented enforcement, allow nonlawyers to perform activities that are otherwise characterized as the practice of law. Certified Public Accountants (CPAs), non-lawyers representing individuals in administrative settings, legal document preparation services, and other non-lawyers offering detailed legal advice pose serious threats to the bar and the individuals they serve. Uniformed standards of liability, ethics, and certification should be developed to ensure a balanced group of practitioners is available to the public. Pulling nonlawyers into the realm of liability for breach of professional responsibility would result in a higher …
Can Federal Courts Exercise Jurisdiction Over State Law Malpractice Claims Arising Out Of Patent Law Disputes?, Isaac C. Ta
Can Federal Courts Exercise Jurisdiction Over State Law Malpractice Claims Arising Out Of Patent Law Disputes?, Isaac C. Ta
St. Mary's Journal on Legal Malpractice & Ethics
Under 28 U.S.C. § 1338, federal courts generally have original jurisdiction over cases arising under federal civil law. Specifically, under 28 U.S.C. § 1338(a), federal courts have jurisdiction over cases brought under federal patent laws. As with any legal proceeding, the potential for legal malpractice as it relates to patent issues (e.g., proper patent filing) is very real. However, unlike patent law proceedings, legal malpractice is governed by state law.' When the two causes of action are intertwined, federal and state courts are presented with the issue of which court possesses proper jurisdiction. Some argue federal courts can properly exercise …
How An Obscure Tennessee Opinion Uncovers The Veil Of Legal Malpractice Between Asset-Protection Trusts And The Uniform Trust Code., Charles Epps Ipock
How An Obscure Tennessee Opinion Uncovers The Veil Of Legal Malpractice Between Asset-Protection Trusts And The Uniform Trust Code., Charles Epps Ipock
St. Mary's Journal on Legal Malpractice & Ethics
In the year 2000, the Uniform Law Commissioners approved the Uniform Trust Code (UTC). This was the first effort to provide states with an all-inclusive model for codifying their trust laws. Since then, at least twenty-three states adopted some, or most of the UTC. But this enactment did not come without controversy. Most of the controversies stem from provisions regarding asset-protection trusts. The net result of asset-protection trusts within the UTC essentially disposes of discretionary trusts by requiring them to contain spendthrift language. The undesirable effect of these provisions is that without a spendthrift clause any creditor can attach a …
Civil Liability Approaches To The Stolen Valor Epidemic., Lauren A. Valkenaar
Civil Liability Approaches To The Stolen Valor Epidemic., Lauren A. Valkenaar
St. Mary's Law Journal
Over the years, civilians and members of the military have falsely claimed honors “stealing” the valor, reputation and benefits bestowed upon actual medal recipients. Lawmakers have historically addressed this problem of stolen valor with criminal prosecution. In 2005, Congress passed the Stolen Valor Act, making it illegal for an individual to lie about receiving military awards. However, the constitutionality of the Stolen Valor Act of 2005 was challenged in United States v. Alvarez. The Supreme Court of the United States found that the act violated the First Amendment because it was a content-based restriction on speech regarding military service. Therefore, …
Order In The Court!: Ethical Conduct In A Criminal Trial Under The Texas Disciplinary Rules., Edward L. Wilkinson
Order In The Court!: Ethical Conduct In A Criminal Trial Under The Texas Disciplinary Rules., Edward L. Wilkinson
St. Mary's Journal on Legal Malpractice & Ethics
In a criminal trial, the most common ethical duties implicated are the duty of candor to the tribunal, maintaining the impartiality and integrity of the tribunal, and the fairness of the proceeding as a whole. Under the Texas Disciplinary Rules of Professional Conduct, these duties are broken down in Rules 3.03, 3.04, 3.05, and 3.06. Attorneys are charged with the responsibility of fully understanding each of these duties in order to interact accordingly with the tribunal. This Article will examine, in detail, each of these rules individually. Additionally, the Article will analyze how each of the rules overlap and coincide …
Appropriate Testing And Resolution: How To Determine Whether Appropriation Art Is Transformative Fair Use Or Merely In Unauthorized Derivative., Eric D. Gorman
Appropriate Testing And Resolution: How To Determine Whether Appropriation Art Is Transformative Fair Use Or Merely In Unauthorized Derivative., Eric D. Gorman
St. Mary's Law Journal
This Article addresses the copyright concerns in appropriation art today and concludes that copyright law should be amended to address the complex issues found in this area of the law. Part II provides a background on appropriation art and the different facets of copyright law, including the doctrine of fair use. Part III analyzes whether appropriation art can even be considered “fair use” under the current exceptions of copyright infringement. Part IV discusses various legal tests to determine whether appropriation art that utilizes copyrighted material can exercise the doctrine of fair use against alleged copyright infringement. It also proposes a …
Inheritance Rights Of Posthumously Conceived Children In Texas Comment., Allison Stewart Ellis
Inheritance Rights Of Posthumously Conceived Children In Texas Comment., Allison Stewart Ellis
St. Mary's Law Journal
The Texas Legislature should update its legislation pertaining to posthumously conceived children. More than 20,000 children are born from artificial insemination each year, some of whom are conceived following their father’s death. Whether or not these children are entitled to a share in their father’s estate is a question for each state legislature. Many states have adopted a version of the Uniform Parentage Act (UPA). The UPA states that once paternity of a posthumously conceived child is established, the child is entitled to inherit from the deceased’s estate. Texas has adopted the UPA in part and has added stringent requirements …
Can Immune Parties Really Be Responsible: An Analysis Of The Current Interpretation Of The Texas Responsible Third Party Statute And Its Vulnerability To Constitutional Challenge., Justin C. Roberts, Randell Roberts
Can Immune Parties Really Be Responsible: An Analysis Of The Current Interpretation Of The Texas Responsible Third Party Statute And Its Vulnerability To Constitutional Challenge., Justin C. Roberts, Randell Roberts
St. Mary's Law Journal
The Texas Responsible Third Party (RTP) statute was amended in 2003 to give defendants the opportunity to have the jury apportion responsibility for the plaintiff’s damages to persons who were not joined in the lawsuit. A defendant could achieve this result by designating a “responsible third party.” Plaintiffs may often join responsible third parties as additional defendants. Under such situations, all culpable parties are before the court, defending themselves, and accountable to the plaintiff for their percentage of responsibility. When the statute worked in this fashion it achieved “a carefully constructed scheme balancing the interests of both defendants and claimants.” …
Administrative Procedure For The Twenty-First Century: An Introduction To The 2010 Model State Administrative Procedure Act., John Gedid
St. Mary's Law Journal
The National Conference of Commissioners on Uniform State Laws (ULC) approved the Revised Model State Administrative Procedure Act (2010 MSAPA) in 2010. The model state administrative procedure acts (APA) have been one of the most successful endeavors of the ULC. They have played a major role in encouraging states to incorporate concepts of fairness into state agency procedure statutes and to make express provisions for judicial review of administrative action. Those states that adopted the model acts accomplished fairness goals while bringing efficiency and accuracy into the state administrative process. By providing an overview of the Act’s new features, this …
A Custom Fit: Tailoring Texas Civil Jury Selection Procedures To Case Tiers., Jarod S. Gonzalez
A Custom Fit: Tailoring Texas Civil Jury Selection Procedures To Case Tiers., Jarod S. Gonzalez
St. Mary's Law Journal
Citizens serving on a civil jury are entrusted with making factual decisions about disputes that impact legal rights and remedies of litigants and set standards for the behavior of the public. Unfortunately, civil jury trials take place less frequently in twenty-first century Texas than in prior eras. Part of the justice system’s rejuvenation should involve a re-evaluation and improvement of the current process for selecting civil juries. Currently, the primary flaw in Texas jury selection procedures is the one-size-fits-all approach. Because some cases need twelve impartial jurors who are lay persons, and others require twelve people who are knowledgeable of …
Expanding Protective Order Coverage., Kellie K. Player
Expanding Protective Order Coverage., Kellie K. Player
St. Mary's Law Journal
The Texas legislature should eliminate the relationship requirement for a protective order. Although the Texas legislature passed the Kristy Appleby Act, which expanded the definition of dating violence, some victims of domestic violence may still be unable to qualify for a protective order. Specifically, some third-party individuals in a love triangle may not be eligible to receive a protective order. In Texas, a potential or current victim of domestic abuse needs to demonstrate a relationship with the perpetrator. Despite the broadened definition of relationship, some potential victims may still be unable to meet this burden. If the person cannot, they …
Social Networking And Judicial Ethics., Craig Estlinbaum
Social Networking And Judicial Ethics., Craig Estlinbaum
St. Mary's Journal on Legal Malpractice & Ethics
Social network sites (SNSs) such as Facebook, Linkedln, and Twitter have become an increasingly ever-present feature in American life since first appearing in the late 1990s. SNSs now impact virtually all parts of daily life, and the judiciary is not immune to this effect. Recent statistics show that approximately 40% of judges nationwide utilize SNSs for personal, professional, and electoral purposes. Social media, like any public communication form, presents special ethical challenges for judges. In recent years, judicial ethics committees in various states have weighed in on these questions and have not shown any clear consensus. However, it is generally …
Will Contests: From Start To Finish., Joyce Moore
Will Contests: From Start To Finish., Joyce Moore
St. Mary's Law Journal
This Article primarily focuses on the practical problems facing attorneys and courts when evaluating and proving up a will or trust in contested cases. The focus extends further into the special procedural and evidentiary rules applicable to these actions, the use and misuse of summary judgment proceedings in these cases, and some observations regarding developing trends and strategies in will and trust contest litigation. Admittedly, this area of practice is a melting pot of presumptions, exceptions, threshold hurdles, capacity qualms, evidentiary issues, strategic clauses, and countless other headache-inducing legal issues. Yet, attorneys must diligently juggle all of them while also …
Removal Of Independent Executors: Examining The Standard In Texas After The Addition Of Material Conflict Of Interest To Section 149c Of The Texas Probate Code., Elizabeth R. Kopecki
Removal Of Independent Executors: Examining The Standard In Texas After The Addition Of Material Conflict Of Interest To Section 149c Of The Texas Probate Code., Elizabeth R. Kopecki
St. Mary's Law Journal
The State of Texas permits independent executors to operate with minimal court supervision. This allows executors to administer an estate with as little cost and delay as possible. Sometimes executors abuse this limited supervision and fail to manage estates properly. Fortunately, there are particular circumstances outlined in the Texas Probate Code which allow courts to step in and remove these harmful executors. Since the adoption of section 149C to the Texas Probate Code, grounds for removal have remained relatively specific. Recently, the legislature has added a new ground: “material conflict of interest.” Though no bright-line rule exists, there is precedent …
Issues Concerning Charges For Driving While Intoxicated In Texas Federal Courts., Brian L. Owsley
Issues Concerning Charges For Driving While Intoxicated In Texas Federal Courts., Brian L. Owsley
St. Mary's Law Journal
Each year numerous defendants appear in courts located in Texas, both state and federal, charged with offenses related to driving while intoxicated (DWI). Defendants appearing before state courts are prosecuted pursuant to Texas statutes, regulations, and binding case law. In certain circumstances, defendants appearing in federal courts face the same statutory elements of a crime and the same potential penalties as in a Texas state court. In many of the cases, however, statutory elements and potential penalties differ. Furthermore, certain rights and regulations afforded to Texas state defendants are unavailable to those charged in federal courts located in the state. …
Home Sweet Homestead - Not If You Are Subject To A Mandatory Homeowners' Association., Bridget M. Fuselier
Home Sweet Homestead - Not If You Are Subject To A Mandatory Homeowners' Association., Bridget M. Fuselier
St. Mary's Law Journal
Changes must be made to current Texas laws to strike a proper balance between the homeowners’ rights and the homeowners association’s (HOA) rights. The Texas Supreme Court’s decision in Inwood North Homeowners’ Ass’n v. Harris allows liens to attach to what would otherwise be considered homestead-protected property. Although the promise in Inwood was set forth in writing, touched and concerned the land, was intended to run with the land, and was properly recorded, that did not create a contractual lien. The court, however, incorrectly combined the concepts of liens and covenants. Furthermore, the court seemed to ignore the important and …
A Shift In Power: Why Increased Urban Drilling Necessitates A Change In Regulatory Authority Comment., Riley W. Vanham
A Shift In Power: Why Increased Urban Drilling Necessitates A Change In Regulatory Authority Comment., Riley W. Vanham
St. Mary's Law Journal
Historically, Texas has boasted a very lucrative oil and gas industry, which has been vital to the state’s successful economy. Due to increased drilling in urban areas, particularly the Barnett Shale, the number of affected surface owners multiplied overnight, attracting attention to oil and gas issues. Legislation has been purported to remedy the longtime conflict in Texas property law caused by the dominance of the mineral estate over the surface estate. But no bill has passed having major policy-change implications. Currently, local governments freely adopt and enforce oil and gas regulations. These ordinances vary from city-to-city, creating inconsistencies for operators …
Professional Responsibility For The Pro Se Attorney., Margaret Raymond
Professional Responsibility For The Pro Se Attorney., Margaret Raymond
St. Mary's Journal on Legal Malpractice & Ethics
This Article considers how pro se lawyers should be treated under the law of professional responsibility. While courts have addressed whether various aspects of the law of lawyering should be applied to lawyers acting pro se, they have not done so systematically. The Article first demonstrates that the law is not consistent in its treatment of pro se lawyers. It then argues that a purpose-based approach to the issue provides a consistent, rational, and reproducible way to analyze the question. It concludes that whether a particular rule of professional responsibility should apply to a pro se lawyer should be driven …
The Constitutionality Of Collateral Post-Conviction Claims Of Actual Innocence Comment., Craig M. Jacobs
The Constitutionality Of Collateral Post-Conviction Claims Of Actual Innocence Comment., Craig M. Jacobs
St. Mary's Law Journal
The notion that the state can punish innocent people disrupts public confidence in the usefulness of the criminal justice system. If, by legislative design, the criminal justice system is not concerned with or is accepting of situations where innocent people are punished by the state, should courts take immediate action? Once criminal defendants exhaust the appellate process, Supreme Court Justices have stated, federal courts should not hear claims of actual innocence. Such statements are supported by the federal habeas corpus statute as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). AEDPA requires federal habeas courts to …