Legal Ethics and Professional Responsibility Commons^™

The Duty To Report Violations Of The Rules Of Professional Conduct: Alternative Views, Lloyd B. Snyder, Harry D. Cornett Jr.

Law Faculty Articles and Essays

Thomas Horwitz wrote a thoughtful, provocative article in the November edition of this Journal critizicing Ohio Advisory Opinion 2007-1. That opinion offers the view of the Board of Commissioners on Grievances and Discipline on several features of Rule 8.3 of the Ohio Rules of Professional Conduct. Rule 8.3 requires lawyers to report certain violations of the Rules. Failure to report is itself a violation of the Rules. Horwitz not only criticized the advisory opinion, he also disapproved the procedures followed by the Board in formulating its advisory opinion. The authors of this article disagree with Howitz and offer their views …

Peace On Earth, Goodwill In Divorce: Revisiting Travis In Light Of Oklahoma’S Revised Ethical Rule Allowing The Sale Of Law Practice Goodwill, Jennifer D. Ary-Hogue

Oklahoma Law Review

No abstract provided.

Commenting On Credibility In Kansas: A Constructive Criticism Of State V. Pabst, Steve Leben

Faculty Works

In some respects, this is a cautionary tale about overruling precedent. The Kansas Supreme Court openly overruled its own thirty-two year old precedent in deciding State v. Pabst in 2000. Cautionary tales and precedents aside, this Article is primarily about how trials are conducted, and how much latitude an attorney should have in Kansas to talk directly to jurors in closing argument about all the issues-including witness credibility-that will decide the case. Pabst forced attorneys to change the way they conduct closing arguments. While the result in Pabst was right, the rationale the court used to support the decision was …

Ethical Issues In Collaborative Lawyering, Barbara Glesner Fines

Faculty Works

No abstract provided.

Fixed Justice: Reforming Plea-Bargaining With Plea-Based Ceilings, Russell D. Covey

Faculty Publications By Year

The ubiquity of plea bargaining creates real concern that innocent defendants are occasionally, or perhaps even routinely, pleading guilty to avoid coercive trial sentences. Pleading guilty is a rational choice for defendants as long as prosecutors offer plea discounts so substantial that trial is not a rational strategy regardless of guilt or innocence. The long-recognized solution to this problem is to enforce limits on the size of the plea/trial sentencing differential. As a practical matter, however, discount limits are unenforceable if prosecutors retain ultimate discretion over charge selection and declination. Because the doctrine of prosecutorial charging discretion is immune to …

Straddling The Fence Between Truth And Pretense: The Role Of Law And Preference In Judicial Decision Making And The Future Of Judicial Independence, Charles G. Geyh

Articles by Maurer Faculty

No abstract provided.

Methods Of Judicial Selection And Their Impact On Judicial Independence, Charles G. Geyh

Articles by Maurer Faculty

No abstract provided.

The Endless Judicial Selection Debate And Why It Matters For Judicial Independence, Charles G. Geyh

Articles by Maurer Faculty

In this overview, I begin by describing the five different systems of state judicial selection that have evolved out of a perennial struggle to strike an optimal balance between judicial independence and judicial accountability. I then explore recent developments that have intensified that struggle, before analyzing, with reference to available research, how different selection systems counter or accommodate such developments. My purpose here is not to write (another) position piece. Rather, my purpose is to step back and contextualize disputes over judicial selection with reference to the independence and accountability issues that animate them, and to isolate what we know …

In The Wake Of Low V. Henry: Is Pre-Suit Discovery Now A Reality In Texas., John G. Lione Jr., Ryan W. Lione

St. Mary's Law Journal

Following the Texas Supreme Court decision in Low v. Henry, the issue of whether an attorney may be liable for filing a “groundless pleading” has come to the forefront of Texas jurisprudence. This recent decision ought to pique Texas attorneys’ attention. In reprimanding egregious attorney conduct, did the Texas Supreme Court’s tightening of the Texas Rules of Civil Procedure increase the duties and responsibilities of all Texas attorneys by establishing what may amount to pre-suit discovery? Yet, courts presume pleadings and motions are filed in good faith, and the party seeking sanctions bears the burden of rebutting this presumption. The …

Playing With Fire: The Science Of Confronting Adverse Material In Legal Advocacy, Kathryn M. Stanchi

Scholarly Works

The Article seeks to use the science to determine what treatment of adverse information is most beneficial to the client's position. A careful study of the science reveals that, overall, it is advantageous for the advocate to volunteer negative information and rebut it early, and that a direct and in-depth confrontation of negative information is generally more effective than an indirect and cursory treatment.

A close look at the finer points of the data, however, reveals that the question of disclosure is a complicated one. Therefore, legal advocates should learn about the research findings and the theories underlying the research …

Beyond Cardboard Clients In Legal Ethics, Katherine R. Kruse

Scholarly Works

This Article argues that the construction of cardboard clients in legal ethics has disserved legal ethics by obscuring what is arguably a more central problem of legal professionalism: the problem of legal objectification. The problem of legal objectification is the tendency of lawyers to "issue-spot" their clients as they would the facts on a blue-book exam, overemphasizing the clients' legal interests and minimizing or ignoring the other cares, commitments, relationships, reputations and values that constitute the objectives clients bring to legal representation. This Article proposes an alternative ideal of legal professionalism for "three-dimensional clients" based on helping clients articulate and …

(Almost) Everything We Learned About Pleasing Bankruptcy Judges, We Learned In Kindergarten, Nancy B. Rapoport, Roland Bernier Iii

Scholarly Works

In this essay, we demonstrate that most ethics violations (at least the ones that irritate bankruptcy judges) are also violations of simple rules of behavior that people should have learned in kindergarten.

Growing Pains: Changes In Collaborative Law And The Challenge Of Legal Ethics, Christopher M. Fairman

Campbell Law Review

No abstract provided.

Conflicts Of Interest And Disclosures: Are We Making A Mountain Out Of A Molehill, David Allen Larson

Faculty Scholarship

The ethical standards governing conflicts of interest disclosure requirements for arbitrators and mediators are numerous and varied. In spite of the considerable attention that conflict of interest questions attract, both the extent to which an arbitrator must disclose past, present, and potential conflicts of interest and the consequences of a failure to make an appropriate disclosure remain unclear. This article examines disclosure requirements themselves, as well as the sanctions and penalties that may result from a failure to disclose information concerning a neutral's impartiality. Particular attention is paid to what generally is regarded as the most extreme consequence of failure; …

True Believers At Law: National Security Agendas, The Regulation Of Lawyers, And The Separation Of Powers, Peter Margulies

Law Faculty Scholarship

Ideological agendas distort the deliberation required for sound legal advice about national security. Elite government lawyers after September 11 advanced a theory at the expense of context, labeling legal constraints as "lawfare" against American interests. The lawfare critics failed to recognize that legal constraints can empower decision makers by reinforcing reputational and other long-term values. They also failed their history test, ignoring the lessons of presidents from Jefferson to Kennedy who rejected a rigid adherence to ideology in the national security realm. By discounting context, the construction of the lawfare paradigm produced dire results, including the torture memos drafted by …

The Role Of Attorney Ethics And Witness Misidentification In The 26 Year Incarceration Of An Innocent Man, Susan Poll Klaessy

Public Interest Law Reporter

No abstract provided.

The Human Dignity Of Clients, Katherine R. Kruse

Scholarly Works

This essay reviews David Luban's forthcoming book, Legal Ethics and Human Dignity. At the heart of this new book is an argument that interactions between lawyers and clients ought to be at the center of jurisprudential inquiry. Pointing out that most cases do not go to trial and that much transactional work occurs outside the litigation context, he argues that law's defining moments occur when a "client sketches out a problem and a lawyer tenders advice," rather than when a judge decides a litigant's case. This review essay examines how Luban might elaborate a new "jurisprudence of lawyering" by examining …

Reflections On James N. Castleberry, Jr., Dean (1978-1989), St. Mary's University School Of Law Tribute., Charles E. Cantu

St. Mary's Law Journal

Abstract Forthcoming.

My How You've Grown: The St. Mary's Law Journal Turns Forty Remark., Martin D. Beirne

St. Mary's Law Journal

Abstract Forthcoming.

Chapters In The History Of The Supreme Court Of Texas: Reconstruction And Redemption (1866-1882)., Hans W. Baade

St. Mary's Law Journal

Abstract Forthcoming.

It's About Time: The Need For A Uniform Approach To Using A Prior Conviction To Impact A Witness., Robert F. Holland

St. Mary's Law Journal

In Texas, no uniform approach exists in determining whether to admit evidence of a prior conviction as a technique to impeach a witness. This lack of uniformity leads to significant consequences for the parties and poses a potential prejudicial effect on the truthful character of a witness. Furthermore, there is currently no bright-line judicial standard when evaluating the admissibility of certain prior convictions. Although the Texas Court of Criminal Appeals in Theus v. State provided a non-exhaustive set of factors for trial judges to consider, the court has yet to clarify particular aspects of how to properly apply Texas Rule …

The (New) Ethics Of Collaborative Law, Scott R. Peppet

Publications

No abstract provided.

Shame, Paul Campos

Publications

Here are some observations drawn from nearly seventeen years spent as a legal academic, using a particular device: the depiction of several fictional yet all-too-familiar legal academic characters. With one exception these characters are imaginary - yet their name is legion. The characters are The Drone, The Bully, The Hack, and The Fraud.

What can be done about them - or about us? Answering this question at all satisfactorily requires confronting more than the personal flaws of particular individuals: it necessitates grappling with the structural failures of the contemporary law school. It's true that some of what is wrong with …

Pressures Toward Mediocrity In The Representation Of Children, Barbara Glesner Fines

Faculty Works

When children are the subject of dependency, adoption or guardianship proceedings, protecting those children requires attention to a variety of interests. Children need a voice: an advisor and an advocate whose judgment is unclouded by conflicting interests. Courts need information that the adult parties to the proceedings may not easily discover or willingly provide. The families and social services agencies need monitors and mediators. The attorney guardian ad litem (GAL) is, in many situations, called upon to meet all these needs. During the past decade, major academic conferences and professional organizations have devoted thousands of hours to developing standards of …

Teaching Ethics In Context: Wood V. Lucy, Lady Duff-Gordon In The First Year Curriculum, Celia R. Taylor

Pace Law Review

No abstract provided.

What It's Worth To Do Your Best, Andrew Tettenborn

Pace Law Review

No abstract provided.

“Equality, I Spoke Th At Word/As If A Wedding Vow”: Mental Disability Law And How We Treat Marginalized Persons, Michael J. Perlin, John Douard

NYLS Law Review

No abstract provided.

Sex Offender As Scapegoat: The Monstrous Other Within, John Douard

NYLS Law Review

No abstract provided.

Making The Plaintiff ’S Bar Earn Its Keep: Rethinking The Hospital Incident Report, Katherine Mikk

NYLS Law Review

No abstract provided.

In Re Cardinal Health, Inc. Securities Litigation, Lucas T. Charleston

NYLS Law Review

No abstract provided.