Legal Ethics and Professional Responsibility Commons^™

Policyholder Rights To Independent Counsel: Issues Remain Regarding Compensation, Supervision Of Counsel, Jeffrey W. Stempel

Scholarly Works

More than 30 years ago, a California appellate court decision (San Diego Navy Federal Credit Union v. Cumis Insurance Society, 162 Cal. App. 3d 358 (4th Dist. 1984)) worked a revolution of sorts by ruling that, in cases of conflict between an insurer and a policyholder defending against a plaintiff's claim, the insurer was obligated to permit the policyholder to select its own defense counsel rather than having the case defended by an attorney selected by the insurer. The Cumis movement was more evolutionary than revolutionary in Nevada. Until State Farm Mutual Automobile Ins. Co. v. Hansen, …

When Clients Sue Their Lawyers For Failing To Report Their Own Malpractice, Benjamin P. Cooper

Hofstra Law Review

What consequences should befall the lawyer who fails to disclose a significant error to his client? In a previous article, I examined the lawyer’s ethical duty to report his own malpractice to his client, a topic that had previously received little attention from courts and commentators, and concluded that the duty is well-grounded in Rules 1.4 and 1.7. Therefore the lawyer who fails to disclose his error to his client is subject to discipline. This Article addresses the client's ability to state an independent claim against the lawyer for failing to disclose his own malpractice -- a topic that has …

Monroe Freedman: Friend, Role Model, And Colleague, Roy Simon

Hofstra Law Review

No abstract provided.

Foreword: Legal Malpractice Is No Longer The Profession’S Dirty Little Secret, Susan Saab Fortney

Hofstra Law Review

No abstract provided.

Foreword: Legal Malpractice Is No Longer The Profession's Dirty Little Secret, Susan Saab Fortney

Faculty Scholarship

In 1994, Professor Manuel R. Ramos published a law review article called, Legal Malpractice: The Profession's Dirty Little Secret. As suggested by the title, Professor Ramos argued that legal malpractice was a "taboo subject" that has been "ignored by the legal profession, law schools, mandatory continuing legal education ("CLE") programs, and even by scholarly and lay publications." Thirty years later, legal malpractice is an ever-present threat that lawyers cannot afford to ignore.

Scout’S Honor: The Boy Scouts, Judicial Ethics, And The Appearance Of Partiality, Daniel Ortner

BYU Law Review

No abstract provided.

Arbitrator Bias, William W. Park

Faculty Scholarship

Seeking to bring arbitration into disrepute, an evil gremlin might contemplate two starkly different routes. One route would tolerate appointment of pernicious arbitrators, biased and unable to judge independently. An alternate route to shipwreck, also reducing confidence in the integrity of the arbitral process, would establish unrealistic ethical standards that render the arbitrator’s position precarious and susceptible to destabilisation by litigants engaged in dilatory tactics or seeking to annul unfavourable awards. To reduce the risk of having cases decided by either pernicious or precarious arbitrators, those who establish and apply ethical guidelines walk a tightrope between the rival poles of …

Financial Rewards For Whistleblowing Lawyers, Kathleen Clark, Nancy J. Moore

Faculty Scholarship

The federal government relies increasingly on whistleblowers to ferret out fraud, and has awarded whistleblowers over $4 billion under the False Claims Act and the Dodd-Frank Wall Street reform and Consumer Protection Act. May lawyers ethically seek whistleblower rewards under these federal statutes? A handful of lawyers have tried to do so as FCA qui tam relators. They have not yet succeeded, but several court decisions suggest that they might be able to do so under confidentiality exceptions to state ethics law, which several courts have held are not preempted by the FCA. No lawyer has been publicly identified as …

Raising The Bar: Establishing An Effective Remedy Against Ineffective Counsel, Joseph H. Ricks

BYU Law Review

No abstract provided.

Professional Responsibility And Liability Aspects Of Vereins, The Swiss Army Knife Of Global Law Firm Combinations, Douglas R. Richmond, Matthew K. Corbin

St. John's Law Review

(Excerpt)

Looking ahead, Part II of this Article provides a general overview of the verein model and its governing charter. Part III highlights a variety of ethical considerations for lawyers in verein member firms that are subject to ethics rules based on the Model Rules of Professional Conduct. These include lawyers' obligation to communicate to clients the relationships between the verein and its member firms, the imputation of conflicts of interest between member firms, and fee-splitting among member firms. Part IV discusses previous efforts to hold vereins and their member firms vicariously liable for the misconduct of another member firm. …

A Behavioral Theory Of Legal Ethics, Andrew M. Perlman

Indiana Law Journal

Behavioral insights have informed many areas of law, including the field of professional responsibility. Those insights, however, have had only a modest effect on the foundational theories of legal ethics, even though those theories are, at their core, prescriptions about human behavior. The reality is that lawyers’ conduct cannot be understood, theorized about, or used to produce the best possible regulations without an appreciation for the limits on human rationality and objectivity. A behavioral theory of legal ethics offers a way to incorporate those realties into the foundational debates on a lawyer’s professional role so that scholars can produce more …

Certificates Of Confidentiality: Protecting Human Subject Research Data In Law And Practice, Leslie E. Wolf, Mayank J. Patel, Brett A. Tarver, Jeffrey L. Austin, Lauren A. Dame, Laura M. Beskow

Faculty Publications By Year

The federal Certificate of Confidentiality plays an important role in research on sensitive topics by authorizing researchers to refuse to disclose identifiable research data in response to subpoenas in any legal setting. However, there is little known about how effective Certificates are in practice. This article draws on our legal and empirical research on this topic to fill this information gap. It includes a description of the purpose of Certificates, their legislative and regulatory history, and a summary of the few reported and unreported cases that have dealt with Certificates. In addition, we outline other statutory confidentiality protections, compare them …

Judicial Recusal: It’S Time To Take Another Look Post-Caperton, Robert L. Brown

University of Arkansas at Little Rock Law Review

No abstract provided.

The Role Of Women In International Conflict Resolution, Cassandra K. Shepherd

Journal of Public Law and Policy

No abstract provided.

Ensuring Our Success In An Uncertain Future, Ramón A. Abadin

Professionalism Research Library

What separates lawyers from most other professions — and what will distinguish us and ensure our continuing success in an uncertain future — is professionalism. Professionalism covers the wide range of attributes that make a lawyer a lawyer. The Florida Bar offers members six pages of “expectations” for professionalism, as well as a “Creed of Professionalism.” County and state bar associations, as well as the ABA, have written codes of professionalism. Perhaps The Florida Bar’s Standing Committee on Professionalism says it best: “Professionalism is the pursuit and practice of the highest ideals and tenets of the legal profession. It embraces …

Vulnerability, Preventability, And Responsibility: Exploring Some Normative Implications Of The Human Condition, Daniel E. Wueste

Center for the Study of Ethics in Society Papers

Presented March 17, 2015. Papers presented for the Center for the Study of Ethics in Society Western Michigan University.

Fraud And Misrepresentation Claims Against Lawyers, Douglas R. Richmond

Nevada Law Journal

No abstract provided.

Ethics: Informal Opinion 1151 - Lawyers And The Title "Doctor", Milard King Roper Jr.

Akron Law Review

The legal profession is the only professional group in the United States that has ever prohibited its practicing members with doctorates from using the title "Doctor." Now, with D.R. 2-102(F) of the Code and its interpretation in Informal Opinion 1151, lawyers have been given the opportunity to take advantage of the recognition of their education as being on a par with other doctoral training.

Psychotherapist-Patient Privilege; Patient's Dangerous Condition; Confidentiality; Legal Duty To Warn Potential Victim; Tarasoff V. Regents Of University Of California, Robert E. Burns

Akron Law Review

In placing a legal duty to warn on the psychotherapist, the California supreme court followed the modern trend in tort law by recognizing the subordination of the patient's interest in the confidentiality of the psychotherapist-patient relationship to both the public interest, and to what the court determines to be the patient's own best interest. Under these confined circumstances the therapist acquires a limited right to disclose pertinent information to any person who may have a legitimate interest in his patient's health.' However, certain restrictive guidelines have been placed on the disclosure of such information. In Berry v. Moench, the Utah …

Gustavo GutiéRrez – Liberation Theology & Marxism, Todd Cameron Swathwood Jr

The Kabod

Since 1968, liberation theology has emerged as a prominent feature of religion and politics, particularly in South America. Originally stemming from the writings of Peruvian priest Gustavo Gutiérrez, this at-once theological and overtly political ideology decries the institutionalized violence of the world’s capitalist society on the poor and oppressed, and argues that God is particularly concerned with the plight of the suffering masses. Christians should therefore make assistance of these poor souls their highest priority, and advocate for any and all methods of alleviating suffering, especially those that work from the premise that society must be toppled and rebuilt for …

Lawyers Without Rights: Jewish Lawyers In Germany Under The Third Reich: An Exhibition At Roger Williams University School Of Law, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Of Ethics And Economics: Contingent Percentage Fees For Legal Services, Janet Ann Laufer

Akron Law Review

The contingent percentage fee "is the dominant system in the United States by which legal services are financed by those seeking to assert a claim." The contingent fee is practically the exclusive method of compensating attorneys in personal injury cases.' Contingent percentage fees are also frequently employed in antitrust litigation, class suits, minority stockholder suits, worker's compensation practice, tax practice, and will settlements.'I While the Ethical Considerations of the Code of Professional Responsibility authorize use of the contingent fee in most civil cases," contingent fees are generally considered unethical when applied to criminal cases, divorce cases, and arrangements for procuring …

The Attorney-Client Privilege As Applied To Corporate Clients, Elinore Marsh

Akron Law Review

After sixty-six years of struggle and controversy surrounding the application of the attorney-client privilege to corporate clients the United States Supreme Court has taken one step in laying many questions to rest. Upjohn Co. v. United States was accepted by the Court to resolve differences in the circuits as to how far the privilege extends horizontally and vertically within the corporate structure. This comment discusses the ramifications of extending the privilege to an entity which operates only through its agents, the history of the privilege, the effect of the Upjohn decision and the questions which remain as yet unsolved.

Statute Of Limitations: Discovery Rule For Malpractice, Linda C. Ashar

Akron Law Review

IN OLIVER V. KAISER COMMUNITY HEALTH FOUNDATION the Ohio Supreme Court adopted the discovery standard for medical malpractice actions, which are subject to Ohio's one-year statute of limitations. In Oliver the court held that a medical malpractice cause of action "accrues and the statute of limitations commences to run when the patient discovers, or in the exercise of reasonable care and diligence should have discovered, the resulting injury." Shortly after Oliver, the court applied the discovery rule to legal malpractice cases in Skidmore & Hall v. Rottman. The discovery standard replaces Ohio's previously judicially adopted rule of termination of …

The True Story Of Lawyer Discipline In Ohio: 1967-1983, Stanley A. Samad

Akron Law Review

Ohio is pointed out as among a small minority of states (three) that "still uses procedures identified in the Clark Report . . . as fostering abuse." Although overdrawn, their criticism is not unfair, if the Clark Report's recommendations and the ABA Standards are accepted as norms. For, the investigative and prosecutorial ("relatorship") functions are highly decentralized in Ohio. Moreover, Ohio differs markedly from the ABA Standards with regard to several fundamental conceptions of sanctions, namely in Ohio's "permanent disbarment," irrevocable voluntary resignation, and "indefinite suspension." Further, Ohio has failed to avail itself of several other useful sanctions that help …

Commodity Futures Trading Commission V. Weintraub, Thomas R. Himmelspach

Akron Law Review

After presenting a general discussion of the attorney-client privilege, this casenote will discuss the facts underlying Weintraub and then review the rationales of the Seventh Circuit and the Supreme Court in their respective holdings. This casenote will discuss other arguments which have been raised in support of the trustee's authority over the privilege. The casenote will conclude with a discussion of other policy and precedent arguments which urge that the trustee should not be given this authority.

Legal Malpractice Statutes Of Limitations: A Critical Analysis Of A Burgeoning Crisis, Joseph H. Koffler

Akron Law Review

Surprisingly little has been written on the law of legal malpractice. Even more disturbing is the fact that there is little analytical writing to help guide the courts and bar in this area. The analysis and recommendations contained in this article are intended as a basis in developing rules for statutes of limitations in legal malpractice actions that meet the needs of the parties, the test of fundamental fairness, and evoke a genuine sense of confidence in society.

Lawyer Discipline In Ohio During The 1980'S: A Decade Of Progress?, Stanley A. Samad

Akron Law Review

Through a series of articles, the author has traced the development of lawyer discipline in Ohio since 1967, with special emphasis on the decade of the 1980's.

This article is intended as an evaluation of the progress in lawyer discipline in Ohio during that decade. The norms for evaluation are the standards for lawyer discipline established by the American Bar Association (ABA) substantively and procedurally. Substantively, the "law of lawyering" appears primarily (although not exclusively) through either the 1969 ABA Model Code of Professional Responsibility (CPR), or the 1983 ABA Model Rules of Professional Conduct and Responsibility (RPC). Procedurally, the …

The Client Retention Agreement - The Engagement Letter, William C. Becker

Akron Law Review

What I propose to do in this paper is to review various aspects of engagement or client retention agreements. As background, I have examined some of the forms' which are suggested for these agreements and a number of agreements currently in use by lawyers and law firms, principally in the Summit County, Ohio area. The purpose of this effort is to examine some key provisions of these agreements and, perhaps, suggest possible improvements.

Lawyer Discipline In Ohio, 1988: Some Observations, Stanley A. Samad

Akron Law Review

Table I summarizes the disposition of disciplinary cases reaching the Supreme Court of Ohio for final action in 1988, and eight earlier years. This note discusses the volume of activity during 1988 compared with earlier years, the sanctions that were given, and rule changes affecting discipline. It comments on the types of offenses and the shortfall of Ohio's disciplinary system as measured by the American Bar Association Standards for Lawyer Discipline and Disability Proceedings (hereinafter "ABA Standards"). It recommends a further change in the rules.