Legal Profession Commons^™

Legal Ethics And Law Reform Advocacy, Jeffrey W. Stempel

St. Mary's Journal on Legal Malpractice & Ethics

Social activism, particularly law reform, has long been an accepted, even revered part of the lawyer’s identity. But modern developments such as nation-wide firms, the economic importance of client development, and aggressive attempts by clients to deploy attorneys as de facto, undisclosed lobbyists have put substantial pressure on the traditional vision of the attorney as a “lawyer-statesman” or someone who “checks clients at the door” when participating in law reform activities. Furthermore, law reform activism on behalf of one client (or prospective client when attorneys use their law reform lobbying as part of their marketing strategy) poses a real danger …

In The Midst Of Change, A Few Truths Remain—A Review Of Trazenfeld And Jarvis’S Florida Legal Malpractice Law, Jan L. Jacobowitz Ms.

St. Mary's Journal on Legal Malpractice & Ethics

Abstract forthcoming.

Ethical Issues With Lawyers Openly Carrying Firearms, Dru Stevenson

St. Mary's Journal on Legal Malpractice & Ethics

Ethical concerns arise when lawyers openly carry firearms to adversarial meetings related to representation, such as depositions and settlement negotiations. Visible firearms introduce an element of intimidation, or at least the potential for misunderstandings and escalation of conflicts. The adverse effects of openly carried firearms can impact opposing parties, opposing counsel, the lawyer’s potential clients, witnesses, and even judges and jurors encountered outside the courtroom. The ABA’s Model Rules of Professional Conduct in their current form include provisions that could be applicable, such as rules against coercion and intimidation, but there is no explicit reference to firearms. Several reported incidents …

The Government Lawyer As Activist: A Legal Ethics Analysis, Andrew Martin

Articles, Book Chapters, & Popular Press

Can a lawyer and government employee represent the government in her professional life while being an activist in her personal life? There is a striking and seemingly irreducible clash, at least at the intuitive level, between the two roles – between representing the government on the one hand while at the same time lobbying it or litigating against it on the other. Government lawyers are nonetheless some of the more successful activists in recent Canadian history. This article analyzes whether this duality is problematic from a legal ethics perspective. The analysis is grounded in three case studies: disability rights activist …

A Fiduciary Theory Of Prosecution, Bruce A. Green, Rebecca Roiphe

Articles & Chapters

Scholars have failed to arrive at a unifying theory of prosecution, one that explains the complex role that prosecutors play in our democratic system. This Article draws on a developing body of legal scholarship on fiduciary theory to offer a new paradigm that grounds prosecutors’ obligations in their historical role as fiduciaries. Casting prosecutors as fiduciaries clarifies the prosecutor’s obligation to seek justice, focuses attention on the duties of care and loyalty, and prioritizes criminal justice considerations over other public policy interests in prosecutorial charging and plea-bargaining decisions. As fiduciaries, prosecutors are required to engage in an explicit deliberative process …

Securing Technological Privacy: Modernizing The Texas Disciplinary Rules Of Professional Conduct To Protect Electronic Data, Ashley "Nikki" Vega

St. Mary's Journal on Legal Malpractice & Ethics

This comment explains how and why the Texas Disciplinary Rules of Professional Conduct (the “Texas Disciplinary Rules”) should be updated to reflect the modernization of technology. Lawyers must keep abreast of changes in the law and its practices; including those which are technological in nature. The American Bar Association (the “ABA”) recently amended the “technology provisions” of its Model Rules of Professional Conduct (the “Model Rules”); namely Rule 1.1 “Competence” and Rule 1.6 “Confidentiality of Information” in order to keep up with the benefits and risks associated with technology in the legal profession. Additionally, over half of all jurisdictions have …

Ethical Limitations On Lawyer-To-Lawyer Online Consultations Regarding Pending Cases, Robert Derner

St. Mary's Journal on Legal Malpractice & Ethics

This comment explains how and when lawyer-to-lawyer consultations are permitted in the online world. In all lawyer-to-lawyer consultations, but especially with the online variety, a lawyer must avoid violating the principle of confidentiality when consulting other lawyers about client matters. While in-person lawyer-to-lawyer consultations have been commonplace in the legal profession for decades, the rise of listservs and social media networks has caused many lawyers to seek advice from colleagues on the Internet.

In considering online lawyer-to-lawyer consultations, there are two major issues. Firstly, a lawyer must determine whether the jurisdiction in which he or she practices permits online lawyer-to-lawyer …

From Advocate To Party - Defenses For Lawyers Who Find Themselves In Litigation, Richard J. Wilson

Articles in Law Reviews & Other Academic Journals

Attorneys, like all professionals, face civil liability when their action or inaction causes harm to a client. When an attorney fails the client, the claim most often asserted, and the claim that is typically most appropriate, is a legal malpractice claim. A legal malpractice claim is based on negligence.' Thus, the elements of a legal malpractice claim are (1) a duty, (2) a breach of that duty, (3) the breach proximately caused injury to the plaintiff, and (4) damages occurred.

Still, attorneys find themselves in a different circumstance than the average litigant. An attorney is not responsible for the client's …

A Less Private Practice: Government Lawyers And Legal Ethics, Jennifer Leitch

Dalhousie Law Journal

Government lawyers are public servants and legal professionals. How they differ from private lawyers has much to do with whom they purport to represent and how they exercise power as a lawyer. I will look at a particular case-study—the St. Anne’s Residential school adjudication. This case study illustrates the challenges that government lawyers face in fulfilling their professional duty within a traditional private lawyer framework. St. Anne’s Residential School involved some of the most egregious physical, sexual and psychological abuse of Indigenous children between 1941 and 1972. St. Anne’s Residential School litigation is used as a cautionary (and truly tragic) …

Book Review Essay: Jewish And American Law: A Comparative Study. (Vols. 1 And 2) By Samuel J. Levine, Marie A. Failinger

Touro Law Review

No abstract provided.

Ai Report: Humanity Is Doomed. Send Lawyers, Guns, And Money!, Ashley M. London

Law Faculty Publications

AI systems are powerful technologies being built and implemented by private corporations motivated by profit, not altruism. Change makers, such as attorneys and law students, must therefore be educated on the benefits, detriments, and pitfalls of the rapid spread, and often secret implementation of this technology. The implementation is secret because private corporations place proprietary AI systems inside of black boxes to conceal what is inside. If they did not, the popular myth that AI systems are unbiased machines crunching inherently objective data would be revealed as a falsehood. Algorithms created to run AI systems reflect the inherent human categorization …

Something Wicked This Way Thumbs: Personal Contact Concerns Of Text-Based Attorney Marketing, Ashley M. London

Law Faculty Publications

When the American Bar Association (ABA) announced its latest revisions to Model Rules 7.1–7.5, governing attorney advertising, solicitation, and information about legal services in general, the organization may have unintentionally created a way for attorneys to hack directly into the brains of potential clients for purposes of pecuniary gain.

Brushing aside decades of precedent, the rule on Solicitation of Clients now allows real-time electronic solicitation, including text messaging and tweets. These developments beg the question of whether or not the ABA committee charged with redefining this rule actually understands the power and pervasiveness of cell phones, or how the use …

Ethics 20/20 Successfully Achieved Its Mission: It "Protected, Preserved, And Maintained", James E. Moliterno

James E. Moliterno

The legal profession tends to look inward and backward when faced with crisis and uncertainty. The legal profession could make greater advances by looking outward and forward to find in society and culture the causes of and connections with the legal profession’s crises. Doing so would allow the profession to grow with society, solve problems with rather than against the flow of society, and be more attuned to the society the profession claims to serve.

Judicial Ethics: A New Paradigm For A New Era, Charles G. Geyh

St. Mary's Journal on Legal Malpractice & Ethics

As the preamble to the Model Code of Judicial Conduct indicates, traditional notions of judicial ethics operate within a rule of law paradigm, which posits that the “three I’s” of judicial ethics—independence, impartiality, and integrity—enable judges to uphold the law. In recent decades, however, social science, public opinion, and political commentary suggest that appointed judges abuse their independence by disregarding the law and issuing rulings in accord with their biases and other extralegal impulses, while elected judges disregard the law and issue rulings popular with voters, all of which calls the future of the three I’s and judicial ethics itself …

“The More Things Change, The More They Remain The Same:” Lawyer Ethics In The 21st Century, Gregory C. Sisk

St. Mary's Journal on Legal Malpractice & Ethics

At an accelerating pace since the recession, our legal profession has been undergoing structural changes in the delivery of many legal services. At the same time, longstanding principles of ethics continue to govern the day-to-day lives of practicing lawyers.

This article lays out four examples of how meaningful change in lawyer practice has been accomplished since the turn-of-the-century with continued adherence to bedrock professional concepts. First, the rules now embrace the multi-jurisdictional practice of law, while the disciplinary authority of each jurisdiction is emphatically confirmed and strengthened. Second, rules on lawyer advertising are streamlined to grant largely open-ended permission for …

The Fiduciary Obligations Of Public Officials, Vincent R. Johnson

St. Mary's Journal on Legal Malpractice & Ethics

At various levels of government, the conduct of public officials is often regulated by ethical standards laid down by legislative enactments, such as federal or state statutes or municipal ordinances. These rules of government ethics are important landmarks in the field of law that defines the legal and ethical obligations of public officials. Such provisions can form the basis for the kinds of government ethics training that helps to minimize wrongful conduct by public servants and reduces the risk that the performance of official duties will be clouded by appearances of impropriety. Codified government ethics rules also frequently provide mechanisms …

Making The Modern American Legal Profession, 1969–Present, Michael Ariens

St. Mary's Law Journal

The American legal profession has changed dramatically over the past half-century greatly due to the solution and problem of “scale.” This was most noticeable after the American Bar Association’s adoption of the Code of Professional Responsibility. The reputation of lawyers and the legal community would continue to evolve in the eyes of the public. As such, the demand for lawyers and large law firms who had the capacity and means to handle such vast and varied issues would present itself. The increasing demand from large law firms over the years led to unprecedented growth and impact to the way in …

Professional Responsibility: An Open-Source Casebook, Brian L. Frye, Elizabeth Schiller

Law Faculty Books and Chapters

We wanted this casebook to be as easy to use and understand as possible. Accordingly, we included not only cases, but also the text of the rules and restatements, as well as concise explanations of the relevant law. Each chapter of the book addresses a different issue, in the following format. First, it clearly and concisely explains the relevant law governing that issue. Then provides the relevant text of any statutes, Model Rules, sections of the Restatement of the Law Governing Lawyers, or other sources, with a link to an open-source versions of the full text, when available. It provides …

Rudolph Giuliani And The Ethics Of Bullshit, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Lawyers are communicators. They communicate with clients, courts, adversaries, juries, witnesses, and the public. Lawyers have a special responsibility for the quality of justice. Their communications, therefore, are hedged by various ethical rules to ensure that their statements are knowledgeable, truthful, respectful, and not prejudicial to the administration of justice. But lawyers are not always knowledgeable of the facts. In fact, they sometimes behave disrespectfully, and stray from the truth. False statements by lawyers may be made unwittingly, sometimes intentionally, and sometimes with an indifference, even a contempt for the truth. Discourse of the latter kind may be characterized as …

Mindfulness In Legal Ethics And Professionalism, Peter H. Huang

Publications

Mindfulness involves paying attention with curiosity in an intentional, open, and compassionate way to life as it unfolds moment to moment. Law students, lawyers, law professors, legal clients, and indeed all people can improve their lives through mindfulness. Mindfulness can lead to individual benefits and personal transformation. Mindfulness can also lead to societal benefits and social change. This invited symposium contribution exemplifies how mindfulness can facilitate the positive personal and professional development of law students by presenting excerpts of law students’ answers discussing mindfulness to questions from the final examination of the course: Legal Ethics and Professionalism. Notably, none of …

Virtuous Billing, Randy D. Gordon, Nancy B. Rapoport

Randy D. Gordon

Aristotle tells us, in his Nicomachean Ethics, that we become ethical by building good habits and we become unethical by building bad habits: “excellence of character results from habit, whence it has acquired its name (êthikê) by a slight modification of the word ethos (habit).” Excellence of character comes from following the right habits. Thinking of ethics as habit-forming may sound unusual to the modern mind, but not to Aristotle or the medieval thinkers who grew up in his long shadow. “Habit” in Greek is “ethos,” from which we get our modern word, “ethical.” In Latin, habits are moralis, which …

Institutional Pluralism And The (Hoped-For) Effects Of Candor And Integrity In Legal Scholarship, Paul Horwitz

Marquette Law Review

None

A Thought Experiment About The Academic "Billable" Hour Or Law Professors' Work Habits, Eli Wald

Marquette Law Review

None

Uncharted Waters? Legal Ethics And The Benefit Corporation, Joseph Pileri

St. Mary's Journal on Legal Malpractice & Ethics

Corporate law norms are reflected in lawyers’ ethical duties. The enactment of benefit corporation legislation across the country signals a legislative acknowledgment that corporate law can serve as a public, rather than a merely private, ordering mechanism. Benefit corporations expressly adopt a public benefit as a legal purpose of the enterprise. While many have written about this important development with respect to corporate fiduciary law, this essay is the first to explore the professional and ethical responsibility of lawyers representing benefit corporations. In the last century, as scholars and courts drove an understanding of corporate law that elevated the interests …

It’S A Trap! The Ethical Dark Side Of Requests For Admission, Colin Flora

St. Mary's Journal on Legal Malpractice & Ethics

Due largely to an overlap of authority between disciplinary bodies charged with supervising the professional conduct of attorneys and the authority of courts to supervise litigation, the ethical ramifications of routine discovery abuses often pass without comment. That is because disciplinary authorities routinely defer to courts to police litigation behavior despite courts frequently rejecting the role of enforcers of professional rules. A further contributing factor to unethical conduct becoming routine practice in discovery are ill-defined parameters and a dearth of guidance. One tool in particular, requests for admission, has gone overlooked in the literature and caselaw, but poses unique ethical …

A Human Rights Code Of Conduct: Ambitious Moral Aspiration For A Public Interest Law Office Or Law Clinic, Lauren E. Bartlett

St. John's Law Review

(Excerpt)

Part I of this Article argues that the lack of moral aspiration in legal ethics rules helps contribute to unhappy and unhealthy law students and lawyers, undermining the legal profession. Part II reviews the existing rules and standards that guide the ethical behavior of lawyers in the United States, arguing that all too often the binding rules focus on providing guide posts, signaling where behavior is unacceptable and disciplinary action is possible, instead of providing moral aspiration and options or next steps to describe what a lawyer should do to deal with an ethical dilemma.

Part III of this …

Competing Liabilities: Responding To Evidence Of Child Abuse That Surface During The Attorney-Client Relationship, Alison Beyea

Maine Law Review

Kevin Adams, a practicing attorney in Maine, represents John Brown in a dispute with Brown's landlord. Brown is facing eviction as a result of his inability to pay the rent. Over the course of the representation, Adams has come to believe that Brown is abusing his son. Brown--who is working two jobs but still cannot pay his rent--has told Adams of the incredible pressure he is facing. Brown has admitted that the pressure is getting to him and that he feels bad that he has been “taking it out on the kid.” Brown also told Adams that he had been …

Towering Figures, Enigmas, And Responsive Communities In American Legal Ethics, Thomas L. Shaffer

Maine Law Review

The Annual Edward S. Godfrey Lecture at the University of Maine School of Law was held on November 12, 1998. Professor Thomas L. Shaffer, Edward S. Godfry Professor of Law, presented “Towering Figures, Enigmas, and Responsive Communities in American Legal Ethics.”

A Penal Colony For Bad Lawyers, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

In this article I set out what I believe is an extreme and unconventional way to discipline egregiously bad lawyers. For starters, I think it might be useful to survey briefly the kinds of lawyering conduct currently subject to disciplinary sanctions. Regulation of the conduct of defense lawyers in the U.S. is hedged by various legal and professional rules that are enforced by courts and disciplinary bodies essentially to ensure a minimum level of competent and ethical representation. The Sixth Amendment right to counsel--the so-called “sacred” right--seeks to ensure at least a reasonable degree of lawyering skill. Also, professional codes …

Deliberative Constitutionalism In The National Security Setting, Mary B. Derosa, Milton C. Regan

Georgetown Law Faculty Publications and Other Works

Deliberative democracy theory maintains that authentic deliberation about matters of public concern is an essential condition for the legitimacy of political decisions. Such deliberation has two features. The first is deliberative rigor. This is deliberation guided by public-regarding reasons in a process in which persons are genuinely open to the force of the better argument. The second is transparency. This requires that requires that officials publicly explain the reasons for their decisions in terms that citizens can endorse as acceptable grounds for acting in the name of the political community.

Such requirements would seem to be especially important in the …