Legal Profession Commons^™

The Lawyer As Truth-Teller: Lessons From Enron, Thomas G. Bost

Pepperdine Law Review

The teaching and practice of law assume and are shaped by the standard vision of lawyer conduct and ethical responsibility. Under the standard vision, which is reflected in the various codes of professional responsibility governing lawyers, the lawyer is a "neutral partisan" for his or her client: "neutral" in that he does not let his moral values affect his actions on behalf of his client; "partisan" in that she does whatever she can within the limits of the law to advance her client's stated interests. Because the standard vision is readily understood by most lawyers as imposing a code of …

Contrasting The Vision And The Reality: Core Ethical Values, Ethics Audit And Ethics Decision Models For Attorneys, Arthur Gross Schaefer, Leland Swenson

Pepperdine Law Review

No abstract provided.

Practicing Law As A Christian: Restoration Movement Perspectives, Thomas G. Bost, L. Timothy Perrin

Pepperdine Law Review

The legal profession faces a potential crisis where the professional and personal lives of practicing lawyers are being compartmentalized, with little relationship to or integration with each other, and with sometimes starkly differing standards of conduct and morality. Perrin and Bost argue that a Christian lawyer's commitment to Christ calls them to a standard of conduct higher than or different from the ethical rules propounded by the bar. The article examines the "standard vision" of lawyer conduct and ethical responsibility and summarizes four models of how Christians have adopted in relating to secular culture: in harmony with the code; against …

Whose Ethics? The Benchmark Problem In Legal Ethics Research, Elizabeth Chambliss

Faculty Publications

How should we interpret differences between junior and senior lawyers’ perceptions of ethicality in the workplace? One theory holds that junior lawyers are more reliable informants; that their perceptions are not yet corrupted by self-interest and the demands of practice and therefore will tend to be closer to universal or ordinary morality. This is the predominant theory in the academic literature on large law firms, which tends to portray large law firms as being in perpetual moral decline. To some extent, this corruption narrative informs all critical legal ethics research.

An alternative theory holds that junior lawyers are inexperienced and/or …

Abandoning An "Unethical" System Of Legal Ethics, David R. Barnhizer

Law Faculty Articles and Essays

It is time to abandon the pretense of "legal ethics" as an independent lawyer-run system and to design a civil liability system in which lawyers can be held accountable to wronged clients at reasonable costs with ready access and fair modes of proof. To the extent that the system of ethics actually caused lawyers to act "ethically" (which is a major and largely unsupportable supposition), the competitive dynamics of the legal profession, coupled with the significant decline in values, honesty, and accountability in American society, have rendered even that historically suspect system illegitimate. This does not mean that there are …

Adopting Regulatory Objectives For The Legal Profession, Laurel Terry, Steve Mark, Tahlia Gordon

Faculty Scholarly Works

In 2007, the United Kingdom adopted a new law called the Legal Services Act. This Act radically changed certain aspects of U.K. lawyer regulation. Section 1 of that Act identified eight “regulatory objectives” that provide the basis for the regulation of the legal profession. The United Kingdom is not the only jurisdiction that has identified regulatory objectives. Most Canadian provinces, for example, have provisions that are tantamount to regulatory objectives. Australia routinely used “purpose statements” when enacting legal profession regulation and was in the process of developing regulatory objectives at the time this article was written. Despite these examples, however, …

Trends And Challenges In Lawyer Regulation: The Impact Of Globalization And Technology, Laurel Terry, Steve Mark, Tahlia Gordon

Faculty Scholarly Works

Globalization and technology have changed the practice of law in dramatic ways. This is true not only in the United States, but around the world. In this article, author Laurel Terry, along with Australian regulators Steve Mark and Tahlia Gordon, documented some of these global trends in lawyer regulation. Their article concluded that regulators face issues in common regarding “who” is regulated, “what” or whom is regulated, “when” regulation occurs, “where” regulation occurs, “how” it occurs, and “why” regulation occurs. This article uses this who-what-when-where-why-and-how framework to discuss events around the world. These developments include the 2007 UK Legal Services …

No Laughing Matter: The Intersection Of Legal Malpractice And Professionalism, Nicola A. Boothe-Perry

Journal Publications

In an effort to increase professionalism among lawyers, an analysis of the relationship between lawyers' professional behavior and legal malpractice claims is warranted. This Article will explore that relationship, and address the need to fuse the two components in an effort to enhance professionalism. The Article will specifically seek to address the questions: (1) Should professionalism be admissible, or even conclusive, evidence of the standard of care of the "reasonable attorney" in legal malpractice cases? and (2) Will a proper definition of the "reasonable attorney" in the context of legal malpractice cases encourage and ultimately enhance professionalism in legal society?

Misplaced Fidelity, David Luban

Georgetown Law Faculty Publications and Other Works

This paper is a review essay of W. Bradley Wendel's Lawyers and Fidelity to Law, part of a symposium on Wendel's book. Parts I and II aim to situate Wendel's book within the literature on philosophical or theoretical legal ethics. I focus on two points: Wendel's argument that legal ethics should be examined through the lens of political theory rather than moral philosophy, and his emphasis on the role law plays in setting terms of social coexistence in the midst of moral pluralism. Both of these themes lead him to reject viewing legal ethics as an instance of "the …

That The Laws Be Faithfully Executed: The Perils Of The Government Legal Advisor, David Luban

Georgetown Law Faculty Publications and Other Works

Suppose you practice business law. Your client comes to you and says "We have a major deal in the works. It is aggressive and cutting edge, and we need an opinion from you saying that it is legal." Obviously, you cannot promise that. First, you need to know what the deal is. So, you examine the documents and carefully analyze the law. Unfortunately, you have only bad news to report: the deal is illegal, and there is no way to fix it. But with a little creative stretching of the law and some body English you could make a case …

Dichotomy No Longer? The Role Of The Private Business Sector In Educating The Future Russian Legal Professions, Philip Genty

Faculty Scholarship

In his 1916 work The Law: Business or Profession?, Julius Henry Cohen describes an American legal system in which uniform standards for regulating, disciplining, and educating the profession are just beginning to be developed, albeit unevenly. In discussing the differences between a business and a profession, he argues that a profession requires a uniform set of standards to guide it in matters of ethics, as well as a system of rigorous legal education that includes a firm grounding in these ethical principles.

Perhaps most surprising for a book written in the early twentieth century – long before the …

Three Concepts Of Roles, W. Bradley Wendel

San Diego Law Review

There is something distinctive about the law, legal reasoning, and the role of lawyers. That distinctiveness is captured by the idea that normative reasoning by citizens in communities is necessarily aimed at discovering what rights and obligations everyone ought to have, consistent with the interests of other citizens. It is implausible to believe that ordinary moral reasoning is well-suited to working out a scheme of public entitlements that is suited to regulating the interactions among citizens who disagree about what their entitlements ought to be. The law has authority to the extent it enables people to do better than they …

Confidentiality And Claims Of Ineffective Assistance, Peter A. Joy, Kevin C. Mcmunigal

Faculty Publications

This column discusses what a defense lawyer should do when called upon to reveal client information in response to an ineffective assistance of counsel claim.

Enforcement Of Law Schools' Non-Academic Honor Codes: A Necessary Step Towards Professionalism?, Nicola A. Boothe-Perry

Journal Publications

As law schools strive to enforce their codes of student conduct, enforcement has called into question the legal standing of the schools, since enforcement affects the fundamental rights of students. Consequently, this Article will address the following question: to what extent can law schools fulfill their responsibility and opportunity to enforce behavioral codes-specifically codes governing non-academic conduct-with a goal of improving professionalism? Through analysis of law schools' enforcement capabilities, this Article will suggest a practical framework by which law schools can promulgate and enforce codes and rules affecting students' non-academic conduct.

No Paradise To Regain: Comments On Russell G. Pearce And Eli Wald, The Obligation Of Lawyers To Heal Civic Culture: Confronting The Ordeal Of Incivility In The Practice Of Law, Kenneth S. Gallant

Law Faculty Scholarship

This piece responds to Russell G. Pearce and Eli Wald, The Obligation of Lawyers to Heal Civic Culture: Confronting the Ordeal of Incivility in the Practice of Law (presented at the 2011 Altheimer Symposium, UALR Bowen School of Law). It agrees with their view that arguments from "relational self-interest" (viewing self interest as necessarily connected to the interests of others) can address issues of incivility in the American politics and the practice of law in ways that other arguments cannot.

It disagrees with them on a few specific points:

1. The so-called Ordeal of Incivility in American politics, culture and …

The Challenges Of Developing Cross-Cultural Legal Ethics Education, Professional Development, And Guidance For The Legal Professions, Philip Genty

Faculty Scholarship

The broad goal of this paper is to describe the need, and provide a framework, for engaging in cross-cultural conversations among lawyers, law teachers, and others, who are using legal ethics as a vehicle for improving the legal professions and the delivery of legal services. All legal cultures struggle with the question of how to educate students and lawyers to be ethical professionals and how to regulate the legal profession effectively. The purpose of the cross-cultural conversations discussed in this paper would be to develop principles of legal ethics education, professional development, and regulation of the legal professions that can …

Crisis In The Legal Profession: Don’T Mourn, Organize!, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Collaborative Lawyers' Duties To Screen The Appropriateness Of Collaborative Law And Obtain Clients' Informed Consent To Use Collaborative Law, John M. Lande, Forrest Steven Mosten

Faculty Publications

Collaborative Law (CL) is an innovative dispute resolution process that offers significant benefits but also poses significant non-obvious risks. This Article provides a systematic analysis of these possible risks as identified in books written by CL experts, CL practice group websites, social science research, and bar association ethics opinions. In CL, the lawyers and clients sign a "participation agreement" promising to use an interest-based approach to negotiation and fully disclose all relevant information. A key element of CL is the "disqualification agreement" signed by parties (and sometimes by attorneys) which provides that both CL lawyers would be disqualified from representing …

The Pragmatically Virtuous Lawyer?, Robert F. Blomquist

Law Faculty Publications

No abstract provided.

Whistleblowing Attorneys And Ethical Infrastructures, Alex B. Long

Maryland Law Review

No abstract provided.

Lessons In Legal Ethics From Reading About The Life Of Lincoln, Eugene R. Gaetke

Kentucky Law Journal

No abstract provided.

Lessons In Legal Ethics From Reading About The Life Of Lincoln, Eugene R. Gaetke

Law Faculty Scholarly Articles

Abraham Lincoln is an icon of American history. He is prominently named in various opinion polls as among the best Presidents in the history of the United States. His stature as a great President is perhaps best reflected currently in the stream of events constituting a national two-year celebration of his 1809 birth. Even before that, however, scholarly and popular interest and Lincoln’s life and Presidency continued unabated, as indicated by the steady publication and success of books about him. Notable among these works is David Herbert Donald’s best-selling biography of our sixteenth President titled Lincoln.

Although Mr. Donald’s …

In The Public Interest': The Responsibilities And Rights Of Government Lawyers, Allan C. Hutchinson

Osgoode Hall Law Journal

While considerable thought and effort have been put into exploring and fixing the ethical rights and professional responsibilities of private Lawyers, little energy has been directed towards defining and defending the role and duties of government lawyers. As a result, the traditional understanding seems to be that government lawyers are to consider themselves as being under the same regimen and restrictions as their private counterparts. After criticizing this default approach, the article offers a fresh evaluation of what is different about the role of government lawyers and develops a more appropriate model for thinking about their professional responsibilities and ethical …

The Public Interest, Professionalism, And Pro Bono Publico, Lorne Sossin

Osgoode Hall Law Journal

There is a clear public interest benefit for lawyers to ensure access to the rule of law, especially on the part of the vulnerable. This article seeks to show that the seemingly simple relationship between the legal profession and the public interest is in fact more complicated than it looks. Pro bono may be viewed from two perspectives-that of the lawyer and that of the client. From the perspective of the lawyer, the important question is whether there is ethical motivation to engage in pro bono. If, however, the perspective of the client is paramount, then meeting the client's needs …

Does Civility Matter?, Alice Woolley

Osgoode Hall Law Journal

Recent discussion of legal ethics in Canada has focused on the importance of "civility" as a fundamental value and goal of ethical conduct. This comment questions that focus. After defining the content of "civility' and reviewing its treatment in these initiatives by both the law societies and the courts, the author suggests that the emphasis on civility is misplaced. Focusing on civility has the undesirable tendency to impede lawyer reporting of misconduct by other lawyers and potentially undermines the effective representation of client interests. It also shifts emphasis away from the ethical values that should be the focus of our …

The Inevitability Of Conscience: A Response To My Critics, David Luban

Georgetown Law Faculty Publications and Other Works

This essay by Professor David Luban is written in response to critics of his book, Legal Ethics and Human Dignity.

In part I Professor Luban addresses the primacy that he assigns conscience over the professional role and focuses mainly on the arguments of his critics, Professors Norman Spaulding and W. Bradley Wendel. Part II explores the challenge of pluralism, replying primarily to Professors Katherine Kruse, Spaulding, and Wendel. Part III, in response to Professors Kruse and William Simon, elaborates on the concept of human dignity. Part IV discusses institutions and ethics, focusing on Professors Susan Carle and Simon. The …

Challenges And Guidance For Lawyering In A Global Society, Susan Saab Fortney

Faculty Scholarship

This foreword provides an overview of some key aspects of law practice that have changed over the last thirty years. Advancements in technology that allow communication and interaction across borders have facilitated lawyers in globalizing their practice locality. Consequently, new issues regarding comparative ethics have arisen. This foreword suggests that ethics rules have not kept pace with the changing landscape of law practice and uses current standards for advanced waivers, rules relating to contracts with represented and unrepresented persons, and the proper use of ethics rules in civil litigation to illustrate this point. This foreword raises concern over the erosion …

Ethical Codes And Cultural Context: Ensuring Legal Ethics In The Global Law Firm, Laurence Etherington, Robert Lee

Indiana Journal of Global Legal Studies

There are doubtless many practical and professional problems that arise in the global legal practice, but this paper suggests that not least of these are issues of legal ethics, in part generated by the global context and not easily amenable to resolution by reference to any single code within the "home" or "host" jurisdiction. For example, there may be difficulties in isolating precisely what those ethical obligations might comprise. These obligations might be rooted in the requirements of local law, but they might arise equally from the values and expectations of the client, or from other lawyers whether inside or …

Law In The Plays Of Elmer Rice, Randolph N. Jonakait

Articles & Chapters

While novels, short stories, television shows, movies, and classic dramas are often analyzed for insights into the law, modern plays are seldom similarly examined. The plays of Elmer Rice, however, should be discussed by those interested in our legal system. Rice, although now largely forgotten, was a leading playwright of the last century. He was a law school graduate, and his work often incorporated legal themes. His plays provide provocative commentaries about the law and raise dilemmas about justice and ethics that resonate today. This essay explores the interplay between plays and the law by examining the life and work …

Sensational Reports: The Ethical Duty Of Cause Lawyers To Be Competent In Public Advocacy, Deborah J. Cantrell

Publications

This article argues that cause lawyers - those lawyers whose primary focus is on social change rather than on for-profit client-based work - have an ethical responsibility to be competent in public advocacy. That responsibility stems from a cause lawyer's commitment to the principles embodied in the particular social movement in which the lawyer is acting. It is reinforced by the requirement of competency under the Model Rules of Professional Conduct. To illustrate the contours of a competent public advocacy strategy, the article highlights two cause lawyering organizations, Legal Momentum and the Institute for Justice, and considers how each organization …