Legal Ethics and Professional Responsibility Commons^™

Third-Party Funding: Balancing Transparency, National Security, And Access To Justice, Victoria Shannon Sahani

Seattle University Law Review

Many lawmakers who have recently become aware of the multi-billion-dollar global third-party funding industry are raising new national security concerns that further complicate preexisting, longstanding debates about transparency, disclosure, access to justice, and the best way to regulate third-party funding. In response, this Article briefly asserts three main points relating to the question of how best to regulate third-party funding. First, this Article explains the third-party funding industry, including its global regulatory landscape and how it serves three distinct populations: consumers, businesses, and law firms. Second, this Article explains that third-party funding is one tool that can help expand access …

Kim Gyeong-Seok And The Origins Of Northeast Asia’S Corporate Accountability Movement For War And Colonialism, Timothy Webster

Seattle University Law Review

For the past three decades, a transnational reparations movement has unfolded across Northeast Asia. Hundreds of victims—assisted by attorneys, academics, and activists—seek remedies from Japan for various atrocities committed during World War II, colonialism, and other historical injustices.  They press their claims in street protests, legislative hearings, dramatic performances, and other fora.  The “comfort women” are the best known of these claimants; their global redress campaign ex-tends from noisy protests outside of Japan’s embassy in Seoul, to mute statues in raucous boroughs of Berlin.  More obscure, though larger in number, were the roughly one million Koreans who performed forced labor …

Volume 49 Masthead

Seattle University Law Review

Volume 49 Masthead

A Comparative Study Of Chinese And American Approaches To Shaping International Outer Space Law And Norms, Ariel G. Silverman

Seattle University Law Review

This article explores convergences and divergencies in the United States and PRC’s responses to the stalemate in the United Nations over the future of outer space resource governance. I do so by systematically analyzing these leading space-faring nations’ policy-positions and tactics deployed to shape norms around three substantive areas of outer space resource governance: rights of ownership and scope of utilization of space resources, mechanization of the “benefits sharing” principle, and the rights and responsibilities of the private sector. I theorize that these leading space-faring nations have adopted divergent approaches due to their differing historical relationships with international law and …

Table Of Contents

Seattle University Law Review

Table of Contents

Incarcerated Youths In Canada And The United States: A Comparative Analysis, Grace A. Mastrangelo

Binghamton University Undergraduate Journal

Are children, who commit adult crimes, deserving of adult punishments? According to the United Nations, not if it harms their well-being. Article 3 of the Convention on the Rights of the Child (CRC) adopted by the United Nations in November 1989, states that 1) the best interests of the child should be the primary consideration of all state actions involving children, 2) governments must allot children the protection and care necessary for their well-being, and 3) governmental institutions, services, and facilities that deal with children must uphold adequate standards for the safety, health, and supervision of children. The CRC is …

Disconnected Connection, Dyane L. O'Leary

Arkansas Law Review

Lawyering is a human experience in a digital world. Lawyers have long derived pride from labels like personal counselor, trusted advisor, and steady confidant. Sure, sometimes a productized legal service or one-off Turbo-Tax-style filing is all a client needs. But it’s still a people profession, the lifeblood of which is connection with others: clients, colleagues, witnesses, and countless more. Calls for attention to lawyers’ so-called “soft” skills have grown louder in recent years, tagged with descriptors like “people” or “business” or “professional” skills. Modern communication tools facilitate connection and relationship building like never before. But that which connects us threatens …

Trump & Control Of Admin. Agencies: The Firing Of Mspb Member Cathy Harris, Jacob Burns Center For Ethics In The Practice Of Law, Jessica A. Roth, Cathy Harris, Nathaniel Zelinsky

2026 Event Invitations

Former Merit Systems Protection Board (MSPB) member Cathy Harris will join her attorney, Nathaniel Zelinsky, for a discussion of her lawsuit challenging President Trump’s removal of her from the MSPB. The case tests the limits of presidential control over independent administrative agencies.

The event will be moderated by Professor Jessica Roth.

Transforming Indigent Appellate Advocacy, Rachel T. Goldberg, Estelle M. Mckee

Cornell Law Faculty Publications

Indigent appellate advocacy has long been confined to a narrow, technocratic model—one that prioritizes legal expertise over client autonomy and treats appellate cases solely as isolated legal battles rather than opportunities for systemic change. Unlike their trial-level counterparts, appellate attorneys representing indigent clients have received little scholarly attention, leaving critical questions about client participation, ethical representation, and social justice largely unexplored.

This Article challenges the status quo, arguing that appellate attorneys should rethink their role in ways that empower clients and confront the broader injustices shaping their cases. We introduce two alternative frameworks—client-centered appellate representation and participatory appellate representation—that draw …

Disinterestedness In Bankruptcy Cases: Does It Really Matter?, Michelle M. Harner

BYU Law Review

The title of this Essay asks whether disinterestedness (of professionals) in bankruptcy cases really matters. Spoiler alert: Yes, it really does.

Finding Debtor’S Counsel, Anthony Casey, Emma Lotts

BYU Law Review

In this Essay, we explore the question of how to assess the independence of debtor’s counsel in Chapter 11. The question has arisen in recent high-profile bankruptcy cases, attracting renewed attention from commentators. We examine these cases and revisit the unique role that debtor’s counsel serves.

From this analysis, a few guiding principles emerge for determining independence and managing conflicts that may arise. First, consistent with the rules outside of bankruptcy, sophisticated parties are capable of waiving conflicts and should be free to do so when their interests alone are affected by the conflict. Second, the possibility of conflicts—both real …

Derivative Attorney-Client Privilege In Organizations, Douglas R. Richmond

University of Miami Business Law Review

A lawyer and client must be able to communicate about the client’s legal affairs in confidence for the lawyer to be able to meaningfully advise the client, hence courts’ recognition of the attorney-client privilege. Fundamentally, the very term “attorney-client privilege” seemingly requires a lawyer’s participation in a communication for the privilege to attach. But, in fact, lawyers need not always participate in client communications for the attorney-client privilege to shield the communications from discovery. Clients or their employees’ confidential conversations among themselves with respect to legal matters sometimes deserve privilege protection. This derivative application of the privilege can be crucial …

Ethics Of Artificial Intelligence For Lawyers: I’M Sorry Dave, I’M Afraid I Can’T Do That: Competence, Confidentiality, And Communication, Cliff Mckinney

Arkansas Law Notes

In Stanley Kubrick’s 2001: A Space Odyssey, the spaceship’s onboard computer, HAL, calmly refuses to follow the astronaut’s command with the chilling words, “I’m sorry, Dave, I’m afraid I can’t do that.” HAL’s response has become a cultural shorthand for what happens when human expectations collide with machine limitations. The line endures because it captures the chilling reality that machines may appear capable, but they cannot always be trusted to act in ways humans expect or need.

This installment explores three pillars of Formal Opinion 512: competence, confidentiality, and communication. These pillars focus on what lawyers need to understand about …

The National Jurist Names Kellye Testy ’91 Most Influential Person In Legal Education, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

The National Jurist has named Indiana University Maurer School of Law alumna Kellye Y. Testy ’91 the most influential person in legal education, placing her at the top of its annual list of the 25 most influential leaders in the field.

The ranking is based on a survey of law school deans nationwide. In explaining the methodology, The National Jurist noted that respondents were asked to identify individuals who “sparked new ideas, introduced reforms, inspired their peers, or pushed them to see their work differently.” The resulting list, the publication said, highlights leaders who are “moving the field forward and …

Teaching Cross-Cultural Communication In Law School: Lessons From Medicine, Social Work, And Business, Mireille Butler, Jaclyn Celebrezze

St. Mary's Journal on Legal Malpractice & Ethics

Legal clients in the United States are increasingly multilingual and multicultural. More than 71 million people living in the United States communicate in a language other than English. Consequently, the lawyer’s duty of shared understanding is taking on new meaning. With the advent of ABA Ethics Opinion 500, cross-cultural communication skills are a lawyer’s ethical duty and a law school’s mandate. Additionally, ABA Standard 303(c) and the potential of increased experiential learning credit requirements make clear that immediate curricular changes are needed. To prepare for the modern practice of law, tomorrow’s lawyers need to develop cross-cultural skills while in law …

Legal Representation And Public Criticism, Michael Ariens

St. Mary's Journal on Legal Malpractice & Ethics

No abstract provided.

Bigger Isn’T Always Better: The Texas-Size Problem Of Overbreadth In Criminal Discovery, Allison Siegwald

St. Mary's Journal on Legal Malpractice & Ethics

No abstract provided.

Pro Bono, Supplied And Demanded, Anita Bernstein

St. Mary's Journal on Legal Malpractice & Ethics

. Of the fifty-six blackletter provisions in the Model Rules of Professional Conduct, the rule about pro bono is the only one that tells lawyers they “should”—rather than must, must not, or may—take a particular action. This verb, which in effect says: “You deserve praise if you do it but hey, no pressure,” embodies the partial perspective that dominates pro bono—partial in the sense of both incomplete and biased. Valorizing pro bono while imposing no consequences on people who fail to perform it indulges and flatters what this Article calls pro bono’s supply side. Bar leaders, rule writers led by …

Ethics And Originalism, Michael L. Smith

St. Mary's Journal on Legal Malpractice & Ethics

This Article addresses a blind spot in the theorizing and debate over originalist interpretation: the implications of rules of legal ethics. For the few originalist theorists who take the practical side of originalism seriously, attorneys’ rules of professional conduct are almost entirely absent from the discussion. These rules bind all attorneys who, in turn, construct the record, present the evidence, and make the arguments upon which judges and Justices rely. And these rules have profound, though mixed, implications for originalist theory. Some ethical duties—such as those requiring attorney competence and candor to the tribunal—might enhance the quality of originalist analysis …

Ai In The Vault: Ai Act's Impact On Financial Regulation, Maria Lucia Passador

Loyola University Chicago Law Journal

The AI Act, a pioneering legislative framework, classifies AI systems based on their risk levels and mandates stringent requirements for high risk systems to ensure transparency, accountability, and protection of fundamental rights. This Article further addresses the critical intersection of AI technology and prudential supervision, highlighting the significant roles of the AI Office, and the AI Board in the governance and oversight of AI applications in finance.

Despite existing literature focusing on the integration of AI in banking supervision and the associated risks, gaps remain in understanding how these regulatory frameworks can effectively oversee AI's transformative impact on financial markets. …

Conditional Admission And The Hazards Of Lawyer Assistance Programs Operating Without Transparency Or Oversight, Paula Schaefer

Oklahoma Law Review

No abstract provided.

The Ai Advocate: Tracking The Impact Of Artificial Intelligence On Trial Advocacy, John G. Browning

Loyola University Chicago Law Journal

In his annual State of the Judiciary address on December 31, 2023, Chief Justice John G. Roberts chose to focus on the use of generative AI. He cautioned that while AI "has great potential to dramatically increase access to key information for lawyers," its use "requires caution and humility" because of the risk of "dehumanizing the law." Chief Justice Roberts' timely warning, made at the height of concerns nationally about lawyers relying on fabricated case citations caused by the "hallucinations" of generative AI, could have just as easily been targeted not only to the legal profession generally, but to trial …

Ai Deference, Kevin Frazier

Loyola University Chicago Law Journal

Existing AI tools allow administrative agencies to chart a more aggressive regulatory path. AI can identify which statutes and regulations, if reinterpreted, would further the agency's agenda. AI can also draft new regulations and forecast their likely effects.

No laws explicitly ban agencies from using AI. In fact, successive presidential administrations have encouraged agencies to increase their use of AI. Cities and states have already been integrating AI into ever more substantive governance tasks. Governments around the world are likewise finding novel ways to incorporate AI into drafting, enforcing, and adjudicating laws. In short, it is a matter of when, …

Reimagining Self-Regulation In Sexual Misconduct Complaints: Trust Through Transfer, Allyson M. Mcbride

Indiana Journal of Law and Social Equality

To increase trust in the judiciary’s ability to self-regulate, any formal complaints about a judge should not be handled by a colleague down the hall, but a judge from a different circuit. In this Comment, I propose automatic transfer out of circuit to improve the handling of sexual misconduct complaints specifically. I first describe the different ways judicial conduct is regulated in the federal system. I then discuss the problem of sexual misconduct in the judiciary. Finally, I outline why it is problematic for judges to adjudicate complaints about their intra-circuit colleagues and recommend that all complaints be automatically transferred …

Interrogating The Facts Of The Case, Anna Roberts

Indiana Law Journal

Buried within many criminal judicial opinions is the origin of their “facts”—the interrogation room. Criminal law pedagogy should expose this origin. If we treat the alleged product of interrogation as “what happened,” as criminal cases (and professors) sometimes do, we obscure the ways in which interrogators are trained to incriminate and to co-create confessions. We also risk obscuring subsequent layers of reporting by police, prosecutors, or judges.

Recent scholarly literature urges criminal law professors to teach differently, warning that we distort, sanitize, and bolster the carceral state when we erase governmental agents and bypass procedure. Treating the “facts of the …

Legal Ethics Of Ai Snake Oil: Navigating The Hype, Harm, And Hope Of Legal Ai, Drew Simshaw

Scholarly Works

This paper argues that the legal ethics of AI extend far beyond competence and hallucinations. It shows how AI often functions as a mirror, exposing deeper ethical questions about institutional incentives, lawyer wellbeing, access to justice, and AI's broader social and environmental impacts.

The Obverse-Turing Test: Rethinking Authorship, Trust, And Time In An Accelerated Age, Michael J. Miller, Chatgpt (Ai~Nesbo+)

Psychology

In this paper, we propose a new test for scientific accountability in the era of artificial intelligence: the Obverse Turing Test for Authorship. While the traditional Turing test focuses on a machine's ability to mimic human intelligence, our test addresses the question: when should a scientific contribution involving artificial intelligence be attributed joint authorship? We argue that more and more authors are using AI in the idea generation and elaboration stages of their work, but rarely acknowledge this use explicitly. To examine this gap, we analyze examples of human–AI interactions across fields and propose a new approach to authorship based …

Philosophically Aligned, Operationally Fractured: Duty-Of-Care In Nagpra Practice, Meghan Ensign

All Master's Theses

This research aims to explore the implementation of the Duty of Care [43 CFR Part 10.1(d)] within the 2024 revision of the Native American Graves Protection and Repatriation Act (NAGPRA) rules and regulations. While NAGPRA was designed to facilitate repatriation, ambiguities and institutional resistance have hindered compliance, necessitating regulatory updates. The 2024 revision added duty-of-care language intended to improve repatriation outcomes and reinforce Tribal sovereignty. Duty of care requires institutions to consult and collaborate with Tribes on curation policies and practices, and to obtain informed consent before allowing research on, exhibiting, or providing access to cultural items or human remains. …

A Trusteeship Theory Of Pro Bono: Versions And Perversions, David Luban

Georgetown Law Faculty Publications and Other Works

This chapter develops a trusteeship justification of pro bono, arguing that lawyers, as trustees of a public legal system created through democratic self-authorship, have a moral obligation to help address the persistent justice gap affecting persons of limited means. It evaluates multiple forms of pro bono — including voluntary, mandatory, low bono, and state-compelled service — evaluating how well each aligns with the trusteeship model. The chapter contrasts the trusteeship theory with, and criticizes, two alternative justifications for pro bono: presumed lawyer consent rooted in professional tradition and a quid pro quo based on state-authorized privileges. It concludes by distinguishing …

Reining In State Judicial Conduct Commissions, Rebecca Frank Dallet

Marquette Law Review

There is a new threat to judicial independence: state judicial conduct commissions. These bodies are charged with holding judges accountable for violations of state ethics rules. But what was intended to be a shield for the public against judicial misconduct has instead been turned into a sword used against judges. As the judiciary has become more politicized, commissions are being overhauled to include more partisan political appointments. Unfounded complaints against judges are easy to file and to make public, despite confidentiality rules. And investigations of complaints may take many months, leaving judges in limbo as to what they can or …