Legal Ethics and Professional Responsibility Commons^™

A Hard Pill To Swallow: The Abysmal Mental Health Standards Of Detained Immigrant Children In The United States, Rama Bankesly

Seattle University Law Review

After setting foot into the U.S., unaccompanied children must learn to navigate academic and legal systems while receiving little support and carrying the heavy burden of effects of trauma on their mental health. They need access to mental health care from qualified professionals, but as this Comment will explain, they systematically fail to receive care, as can be seen in cases like Doe v. Shenandoah Valley Juv. Ctr. Comm’n. In Shenandoah, an unaccompanied child arrived in the U.S. and was placed in a facility that failed to provide remotely adequate mental health care and in fact was subjected …

The Implications Of Artificial Intelligence In The Criminal Justice System, Natalie Garay

Honors Undergraduate Theses

This thesis focuses on artificial intelligence's recent implications on the criminal justice system regarding its admissibility as evidence in civil and criminal cases. One of the main concerns surrounding artificial intelligence is determining the validity of AI application; application refers to the accuracy "AI measures, classifies, or predicts what it is designed to" (Article: Artificial Intelligence as Evidence by Paul W. Grimm, Maura R. Grossman & Gordon V.Cormack.(https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1349&context=njtip). Privacy law will also be analyzed in this analysis. Is evidence recorded without the individual's consent or knowledge acceptable in determining an individual's guilt? This analysis will primarily focus on …

The Joy Of The Fight: What Litigators Can Learn From The Martial Arts, Len Niehoff, Tim Lynch

Articles

You walk into a martial arts training studio (in Japanese styles, a dojo) and you scan the room. Everything going on here looks, well, unpleasant. In one corner, you observe a group of students performing kata, choreographed sequences of kicks, punches, and blocks that simulate the experience of fighting multiple opponents. Sweat pours off them. In another corner, you see two students engaged in sparring exercises, or kumite. The sharp, smacking noise of one student striking the protective pads worn by another carries across the room. In a third corner, you notice students doing push-ups, working their muscles until their …

Prosecutorial Data Transparency And Data Justice, Caitlin Glass, Kat Albrecht, Perry Moriearty

Faculty Scholarship

The U.S. criminal legal system is notoriously racialized. Though Black and Latinx people make up less than 30% of U.S. residents, they constitute more than 50% of the nearly two million people currently in U.S. prisons and jails. For decades, research has indicated that one group of decision-makers has had an outsized influence on these numbers: prosecutors. From whom to charge to what sentences to recommend, no actor plays a greater role in determining who goes to prison in this country. Highly subjective and lacking in formal guidance and accountability, prosecutorial decisions are especially vulnerable to racial bias. They are …

Creating A Just System Of Civil Recourse – Articulating The Controlled Instrumentalist Approach For Marginalized People, Rukmini Banerjee

CMC Senior Theses

A system of civil recourse is a precondition for a just society. In this paper, I outline the ideal version of a system of civil recourse and analyze the accounts of various liberal philosophers to explain how a non-instrumental and mutual accountability theory of civil recourse best encapsulates its stated purpose. I analyze the American system of civil recourse, specifically tort law, and argue that it bypasses the threshold of tolerable injustice for marginalized people in the United States. Using Tommie Shelby’s framework in Dark Ghettos: Injustice, Dissent, and Reform, I argue that marginalized people are not obligated by …

Plea Bargains, Prosecutorial Breach, And The Curious Right To Cure, Michael D. Cicchini

Brooklyn Law Review

When the prosecutor breaches a plea bargain—e.g., by recommending prison instead of the agreed-upon probation—the defendant is entitled to a remedy: either sentencing in front of a different judge or plea withdrawal. However, if defense counsel objects to the breach, the prosecutor may halfheartedly change the recommendation to probation. Most courts have held that to be an effective “cure”—even when the judge then sentences the defendant to prison, as the prosecutor originally recommended. The right to cure, which was intended for commercial sales contracts, fails miserably in the plea-bargain context. In the above example, the attempted cure is too late, …

Students For Fair Admissions: Affirming Affirmative Action And Shapeshifting Towards Cognitive Diversity?, Steven A. Ramirez

Seattle University Law Review

The Roberts Court holds a well-earned reputation for overturning Supreme Court precedent regardless of the long-standing nature of the case. The Roberts Court knows how to overrule precedent. In Students for Fair Admissions v. Harvard (SFFA), the Court’s majority opinion never intimates that it overrules Grutter v. Bollinger, the Court’s leading opinion permitting race-based affirmative action in college admissions. Instead, the Roberts Court applied Grutter as authoritative to hold certain affirmative action programs entailing racial preferences violative of the Constitution. These programs did not provide an end point, nor did they require assessment, review, periodic expiration, or revision for greater …

Legal Education's Role In Combating Automation Bias And Complacency With Generative Ai In The Practice Of Law, Anna C. Conley

Faculty Law Review Articles

Market-driven efficiencies will result in generative AI as an integral part of the practice of law. Despite this reality, however, recent judicial decisions highlight the risks of generative AI in the practice of law. In each case, an attorney filed documents with the court that included nonexistent cases “hallucinated” by generative AI. The attorneys did not confirm the cases’ actual existence before relying on them and were subsequently sanctioned by the court.

These cases illustrate that, like aviation, self-driving vehicles and healthcare, the legal industry is not immune from automation bias and complacency. Automation bias is the blind reliance on …

Is You Is Or Is You Ain’T My Client? Navigating The Mysteries Of Prospective And Organizational Representation, Leonard Niehoff

Articles

Many years ago, I was trying a civil case that had stretched on for weeks in a federal court in Detroit. The counsel tables for both parties were covered with briefs, coffee cups, memoranda, books, water pitchers, examination outlines, yellow writing pads, and all the other litter that inevitably piles up during long trials. It appeared that we had moved in, just as at our actual homes it appeared that we had moved out.

Building Technology Competence: Navigating The Levels: A Road Map To Proficiency In The Legal Tech Landscape, Kenton S. Brice

Other Faculty Publications

No abstract provided.

Learning To Disagree Agreeably, Allison Orr Larsen

Faculty Publications

But the most important lesson I learned from Judge Wilkinson—out of many important lessons—is the one brought home to me by witnessing his friendship with Judge Michael: the law works only when lawyers learn to “disagree agreeably.” This is a phrase the Judge taught me—and he always attributed to people from whom he learned it—but for me it encapsulates the Judge in every way. It is easy to talk about being collegial in the abstract, but Judge Wilkinson practices what he preaches.

In this brief Essay, on the occasion of celebrating a man who shaped my career and life in …

Innovative Approaches To On-Demand Continuing Legal Education Ethics Training: A Case Study, Tigran W. Eldred, Molly J. Walker Wilson

Faculty Scholarship

In the ongoing discussions about continuing legal education (CLE), concerns have been raised about the quality of programming that is created and delivered. Critics have emphasized the weaknesses in mandatory programs, arguing that requiring annual training on topics such as legal ethics tends to fall short of stated goals.¹ Too often, it is said, such programs fail to deliver content in an engaging manner that is likely to improve competence.² The picture conjured up is of the bored lawyer, sitting in the back of a room flipping through a newspaper or some other distraction, as CLE instructors passively …

Counseling Oppression, Angelo Petrigh

Faculty Scholarship

Critical scholars and public defenders alike have grappled with the contradictions at the heart of counseling clients in a carceral system. Systems of oppression operate within the public defender - client relationship because the defender’s role in translating the law also enforces its inequities. Counseling can obscure the workings of the system, providing an illusion of choice despite privileging certain forms of knowledge and tactics.

But the counseling site is also where defenders become exposed to client’s lived experiences, encounter collectivist tactics, and critically examine the tension of their role in the system. Likewise, through counseling defenders can pull back …

Moving Beyond Statements And Good Intentions In U.S. Law Schools, Angela Onwuachi-Willig

Faculty Scholarship

This Article seeks to answer these questions about how law school leaders might help to cultivate antiracist cultures within their law schools, among their students, and across the legal profession, even in the face of a growing national backlash against antiracism, diversity, equity, and inclusion.³² Part I first establishes why it is important for law schools to "provide [an] education to law students on bias, cross-cultural competency, and racism," as the American Bar Association (ABA) requires, and to train future lawyers who have the abilities to combat racism. ³³ In so doing, Part I defines key terms such as …

The Chicago School’S Coasean Incoherence, Madison Condon

Faculty Scholarship

This comment traces the divergent legal academic interpretations of the Chicago School's Ronald Coase and where their influence lands--revealing the law’s inconsistent conception of just what a corporation is or should be. By following Alyssa Battistoni's investigation of the origin of the "externality," we can see the late 60s and early 1970s as a pivotal era. People were waking up to the collective costs of industrialization and pushing back against corporate power. Against this democratic wave, the writings of the Chicago School worked to separate one human person into her different roles in the economy—consumer, worker, shareholder. They used the …

To Legitimacy And Beyond: A Reform Agenda To Restore Public Confidence In The Federal Courts, Charles G. Geyh

Articles by Maurer Faculty

The article begins by describing he ongoing cycle of anti-court sentiment directed at the federal courts. It situates that cycle in historical context, to the end of showing how independence norms have evolved to constrain more draconian efforts to curb the courts in those cycles. The article then explains why the latest cycle is unusually aggressive and why norms that have protected the judiciary’s independence for generations may be at risk if public skepticism of the courts reaches the point of undermining the judiciary’s perceived legitimacy. Next, the article sorts through the definitional clutter that complicates assessments of whether the …

Background Noise: Lessons About Media Influence, Mitigation Measures, And Mens Rea From Argentine And Us Criminal Cases, Agustina Mitre, Matthew P. Cavedon

Brooklyn Journal of International Law

This Article reflects on the influence that intense media coverage can have on high-profile criminal cases and considers ways to reconcile defendants’ right to a fair trial with press freedom, comparing approaches and cases from Argentina and the US. The Article begins by discussing the tension between journalists’ and defendants’ rights (Part I). It then surveys how the US seeks to mitigate media influence (Part II). After this, it notes two recent Argentine mitigation measures (Part III). Next, it conducts a legal analysis of the Fernando Báez Sosa case, blaming media pressure for errors in the judgment and then proposing …

Large Language Models: Ai's Legal Revolution, Adam Allen Bent

Pace Law Review

This article contemplates and advocates for the use of Artificial Intelligence (“AI”) through Large Language Models (“LLM”) in legal practice. The author ultimately addresses the need to orient LMMs within varying legal contexts including academia, private practice, as well as the U.S. court system. Additionally, the author emphasizes the inevitability of AI and LLM systems infiltrating legal practice, and the reality that the industry must acknowledge and accept these systems to regulate and to provide better while still ethical legal services. Large Language Models: AI’s Legal Revolution, begins by walking the reader through the history of technological innovation of AI, …

Justice On Trial: A Multifaceted Analysis Of Capital Punishment, Abby Long

Honors Theses

There is an ongoing debate surrounding the criminal justice system, focusing specifically on the controversial topic of capital punishment. Highlighting a startling statistic—one in nine death row inmates being exonerated— a pivotal question arises of what factors influence sentencing outcomes? Seven variables, number of sentences, income of offender, region of sentencing, race of offender, gender of offender, and political affiliation of sentencing state, are considered to understand the variations in sentencing outcomes and assess the fairness of the current judicial process. Using an OLS regression analysis of data from all 50 U.S. states, the paper seeks to better understand capital …

Exploring Local Elected Officials' Capacity To Govern Effectively, Mario King

Dissertations

A successful local government exemplifies inclusivity, innovation, and deliberate decision-making, all advancing responsible management of taxpayers' resources. In this qualitative investigation, a phenomenological approach is employed to delve into the lived experiences of local elected officials. The aim of this study was to gain insights into the capacity of these local elected officials for success in governance. Subsequently, the insights from these local elected officials' experiences are harnessed to evaluate their influence and impact on municipal performance.

The management of municipal performance encompasses the provision of social services, the maintenance of fiscal operations, and adherence to statutory obligations (Avellaneda, 2008). …

Legal Ethics, Patrick Emery Longan

Mercer Law Review

This Survey covers the period from June 1, 2022 to May 31, 2023 and discusses developments with respect to attorney discipline, bar admission and readmission, malpractice and other civil claims against lawyers, ineffective assistance of counsel, prosecutorial misconduct, attorney’s liens, judicial conduct, disqualification and withdrawal of counsel, contempt, proposed formal advisory opinions of the State Bar of Georgia Formal Advisory Opinion Board, and proposed amendments to the Georgia Rules of Professional Conduct.

The Futures Of Law, Lawyers, And Law Schools: A Dialogue Authors, Sameer M. Ashar, Benjamin H. Barton, Michael J. Madison, Rachel F. Moran

Faculty Scholarship

On April 19 and 20, 2023, Professors Bernard Hibbitts and Richard Weisberg convened a conference at the University of Pittsburgh School of Law titled “Disarmed, Distracted, Disconnected, and Distressed: Modern Legal Education and the Unmaking of American Lawyers.” Four speakers concluded the event with a spirited conversation about themes expressed during the proceedings. Distilling a lively two days, they asked: what are the most critical challenges now facing United States legal education and, by extension, lawyers and the communities they serve? Their agreements and disagreements were striking, so much so that Professors Hibbitts and Weisberg invited those four to extend …

A Perfect Storm For Legal Education: Privatization, Polarization, And Pedagogy, Rachel F. Moran

Faculty Scholarship

Today, the legal profession faces new challenges to its integrity and legitimacy due to technological change, rising political polarization, and a stratified bar. In this Article, I first explore how technological innovations are undermining lawyers’ claims to a unique monopoly based on expert professionalism. These technologies are designed to transform routinized law practice in ways that improve efficiency. With little focus on attorneys’ obligations to serve the greater good, technology entrepreneurs emphasize practical advantages over traditional forms of representation. These proponents promise reduced costs and superior results through a single-minded commitment to market dynamics. Those promises in turn depend on …

Foreword, The Honorable L. A. Harris Jr.

University of Richmond Law Review

“Your writing is so bad you will not be considered for Law Review and there is some question about your admittance to Law School.”

Life is strange and ironic. In 1974 as a second year law student at the T. C. Williams School of Law at the University of Richmond, I was invited to submit an article to determine if I would be permitted to serve on the Law Review. A member of the Law Review evaluated my article and met with me. In summation he said my writing was so bad that I would not be considered for Law …

Why The Dobbs Draft Release Makes It Tougher To Teach Legal Ethics, Lynne Marie Kohm

St. Mary's Journal on Legal Malpractice & Ethics

No abstract provided.

Legal Ethics, Code Of Conduct For Barristers And The Overriding Objective In Criminal Trials, Zia Akhtar

St. Mary's Journal on Legal Malpractice & Ethics

The criminal lawyer has a duty to his client, to the court, and to the administration of justice. This must be accomplished within a framework of ethics comprised from codes of conduct regulating the legal profession. There are difficult ethical problems arising from conflicts between a lawyer’s responsibilities to clients, the legal system, and the disciplinary codes of the profession. In England, the barrister’s conduct is governed by the Bar Standard Board, and legal professionals must abide by the regulations that are imposed upon them when acting for their clients. The new Criminal Procedure Rules and …

The Disclosure Of Third-Party Litigation Funding Agreements Is Necessary To Resolve Ethical Dilemmas Created By The Third-Party Lender Industry, Gareth Purnell

St. Mary's Journal on Legal Malpractice & Ethics

No abstract provided.

To Write Or Not To Write: The Ethics Of Judicial Writings And Publishing, Nick Badgerow, Michael Hoeflich, Sarah Schmitz

St. Mary's Journal on Legal Malpractice & Ethics

Judges are bound by the Model Code of Judicial Conduct promulgated by the American Bar Association and adopted most states, including the federal judiciary. Within these rules governing judicial conduct, Judges owe duties to the public and to their calling, to be (and appear to be) objective, fair, judicious, and independent. When judges venture into the realm of extrajudicial writing—in the form of fiction novels, short stories, legal books, children’s books, and the like—they must consider the ethical bounds of that expression. The Model Code of Judicial Conduct imposes five main constraints upon extrajudicial writings: (a) a judge may not …

Conduct Relating To The Practice Of Law: Aba Model Rule 8.4(G) And Its History In Light Of The Constitution, Nathan Moelker

St. Mary's Journal on Legal Malpractice & Ethics

The ABA adopted a revision to the Model Rules in 2016, prohibiting harassment and discrimination against a list of protected classes. The Rule, while well-intentioned and targeted at a serious problem, was broadly phrased to include a large category of protected speech and behavior. The Rule has already faced extensive and well-crafted challenges from the perspective of the Free Speech Clause. This article argues that two additional provisions of the First Amendment—the Free Exercise Clause and Freedom of Association—further illustrate the failure of the Rule and the alarmingly wide-ranging effects of such a prohibition on attorney conduct.

Unauthorized Practice Or Untenable Prohibitions: Refining And Redefining Upl, Jan L. Jacobowitz, Peter R. Jarvis

St. Mary's Journal on Legal Malpractice & Ethics

An extraordinarily number of Americans either cannot afford or cannot find lawyers to assist them on civil legal matters. And an increasing number of Americans turn either to on-line apps or to nonlawyer professionals whose practices may overlap in whole or in part with what lawyers do. Although individuals receive much needed assistance, these alternative providers often confront allegations of committing the unauthorized practice of law. Unfortunately, the rules regarding the unauthorized practice of law (“UPL”) are both outdated and extraordinarily ambiguous. Moreover, UPL issues regarding alternative providers are distinct from questions concerning whether nonlawyers should be entitled to be …