Legal Profession Commons^™

“Listserv Lawyering”: Definition And Exploration Of Its Utility In Representation Of Consumer Debtors In Bankruptcy And In Law Practice Generally, Josiah M. Daniel Iii

St. Mary's Journal on Legal Malpractice & Ethics

The author examines the communications and activities of bankruptcy lawyers participating in the listserv of the Bankruptcy Law Section of the State Bar of Texas and finds that those activities constitute a previously unrecognized form of “lawyering,” which he has defined as the work of lawyers in and through the legal system to accomplish the objectives of their clients. Review of specific postings about legal issues and practical problems by Texas bankruptcy lawyers, whose practices are primarily on behalf of individual debtors in cases under Chapters 7 and 13 of the Bankruptcy Code, and observations about the voluntary, collaborative, and …

Punishing The Victim: Model Rule 1.16(A)(2) And Its Relation To Lawyers With Anxiety, Depression, And Bipolar Disorder, Daniel G. Esquivel

St. Mary's Journal on Legal Malpractice & Ethics

Abstract forthcoming.

Ordinary Clients, Overreaching Lawyers, And The Failure To Implement Adequate Client Protection Measures, Leslie C. Levin

American University Law Review

Every year, thousands of individual clients are victimized by overreaching lawyers who overcharge clients, refuse to return unearned fees, or steal their money. For more than forty years, the American Bar Association (ABA) has considered, and often proposed, client protection measures aimed at protecting clients from overreaching lawyers. These measures include requirements that lawyers use written fee agreements in their dealings with clients and rules relating to fee arbitration, client protection funds, insurance payee notification, and random audits of trust accounts. This Article examines what happened to these ABA recommendations when the states considered them and assesses the current state …

Is The Legal Profession Too Independent?, Limor Zer-Gutman, Eli Wald

Marquette Law Review

Faced with mounting pressure to permit national law practice and increase

access to legal services for those who cannot afford to pay for them and

critiques about growing inequality and its failure to lead the battles for greater

gender and racial justice, the legal profession’s response has been to resist

reform proposals by invoking its independence. Lawyers and lawyers alone,

asserts the profession, ought to determine the pace and details of nationalizing

law practice, set the conditions under which nonlawyers and artificial

intelligence can offer legal services, and respond to growing inequality among

lawyers and concerns about the role lawyers …

Law Talk In A Brief Advice Clinic, Linda F. Smith

Utah Law Faculty Scholarship

Over three decades ago, Sarat and Felstiner published a ground-breaking ethnographic study of divorce client-lawyer conversations. They concluded that lawyers portrayed "a chaotic 'anti-system' in which [clients] cannot rely on the technical proficiency, or good faith, of judges and rival lawyers" but need to rely on their own lawyers' insider status to achieve reasonable outcomes.1 Although lawyers initially described the law and procedure to their clients, they rarely referenced that rational description when explaining what had occurred or would occur in their clients' cases. This law talk may have gradually and ultimately persuaded the clients to reach reasonable settlements, but …

Change At The Speed Of Leadership, Lee Fisher

Law Faculty Articles and Essays

“The most dangerous leadership myth is that leaders are born—that there is a genetic factor to leadership. . . That’s nonsense; in fact, the opposite is true. Leaders are made rather than born.”

“Lawyers are in the anomalous position of serving as leaders but generally lacking leadership training and skills. Competency in lawyering skills often functions as a proxy for leadership skills, despite the evidence that leadership skills are distinct and may take years to develop. Our neglect of leadership skills is reaching crisis proportions because nearly half of all current law firm partners will retire within the next ten …

Radical Reformation: Diverse Pathways To Attorney Licensure Will Yield A More Diverse Profession, Carla Pratt

Faculty Articles

No abstract provided.

Testing Privilege: Coaching Bar Takers Towards "Minimum Competency" During The 2020 Pandemic, Afton Cavanaugh

Faculty Articles

The year 2020 was challenging for the bar exam. The longstanding argument that the bar exam is not a fair measure of the minimum competence of someone to practice law was cast into harsh relief and the truth-that the bar exam tests the privilege of its examinees-became startlingly apparent. Not only did 2020 kick off with a devastating global pandemic, but we also saw the rage against systemic racial injustice reach a boiling point just as we were charged with staying in our homes to avoid contracting COVID-19. With a pandemic raging, overt White supremacy on the rise, and racial …

Why The Legal Profession Is The Nation's Least Diverse (And How To Fix It), Sybil Dunlop, Jenny Gassman-Pines

Mitchell Hamline Law Review

No abstract provided.

That's Not Fair Use: Why Rule 68 Copyright Defendants Canno Recover Post-Offer Attorney's Fees, Ryan Kaiser

American University Law Review

Federal Rule of Civil Procedure 68 (Rule 68) is a cost-shifting rule that allows a non-prevailing defendant who made an offer of judgment more favorable than the final judgment to recover costs incurred from the point the offer was made. Until the mid-1980s, whether the rule could apply to the attorney’s fees was the source of much debate. In 1985, the U.S. Supreme Court provided a partial answer when it decided Marek v. Chesny, holding that Rule 68 operates to preclude a civil rights plaintiff from recovering post-offer attorney’s fees. The Court stated that Rule 68 costs include all costs …

Biglaw: Money And Meaning In The Modern Law Firm, Milton C. Regan, Lisa H. Rohrer

Georgetown Law Faculty Publications and Other Works

The Great Recession intensified large law firms’ emphasis on financial performance, leading to claims that lawyers in these firms were now guided by business rather than professional values. Based on interviews with more than 250 partners in large firms, Mitt Regan and Lisa H. Rohrer suggest that the reality is much more complex. It is true that large firm hiring, promotion, compensation, and termination policies are more influenced by business considerations than ever before and that firms actively recruit profitable partners from other firms to replace those they regard as unproductive. At the same time, law firm partners continue to …

Of Sheepdogs And Ventriloquists: Government Lawyers In Two New Deal Agencies, Daniel R. Ernst

Georgetown Law Faculty Publications and Other Works

From the neo-Weberian literature on state-building and the political sociology of the legal profession, one might expect government lawyers to be sheepdogs, nipping at the heels of straying administrators, supplying their agencies with the bureaucratic autonomy so often missing in American government. In this contribution to “Serious Fun” a symposium in honor of John Henry Schlegel of the University at Buffalo School of Law, I report my preliminary findings for two agencies created during the Hundred Days of Franklin D. Roosevelt’s presidency, the Agricultural Adjustment Administration and the National Recovery Administration. I suggest that the neo-Weberian model tends to minimize …

Judges And The Deregulation Of The Lawyer's Monopoly, Jessica K. Steinberg, Anna E. Carpenter, Colleen F. Shanahan, Alyx Mark

Faculty Scholarship

In a revolutionary moment for the legal profession, the deregulation of legal services is taking hold in many parts of the country. Utah and Arizona, for instance, are experimenting with new regulations that permit nonlawyer advocates to play an active role in assisting citizens who may not otherwise have access to legal services. In addition, amendments to the Rules of Professional Conduct in both states, as well as those being contemplated in California, now allow nonlawyers to have a partnership stake in law firms, which may dramatically change the way capital for the delivery of legal services is raised as …

A Systematic Review Of Information Seeking Behavior & Information Needs In Female Lawyers, Jibran Jamshed Mr.

Library Philosophy and Practice (e-journal)

Objectives: The primary objective of this study is to determine the legal information-seeking behavior of female lawyers. The study explores the legal information needs, methods, and barriers faced by female lawyers while seeking legal information.

Methodology: In this quantitative study survey design is used. The population of this study consists of female lawyers from which a sample (n=305) is taken. A structured questionnaire was distributed among the female lawyers of Punjab province in Pakistan. The questionnaire collected data regarding demographic information, information-seeking behaviors, information needs, and barriers faced by female lawyers while seeking legal information. SPSS (Statistical Package …

On Sexual Harassment In The Judiciary, Leah M. Litman, Deeva Shah

Northwestern University Law Review

This Essay examines the legal profession’s role in sexual harassment, particularly in the federal courts. It argues that individuals in the profession have both an individual and collective responsibility for the professional norms that have allowed harassment to happen with little recourse for the people subject to the harassment. It suggests that the legal profession should engage in a sustained, public reflection about how our words, actions, attitudes, and institutional arrangements allow harassment to happen, and about the many different ways that we can prevent and address harassment.

Keeping Lawyers' Houses Clean: Global Innovations To Advance Public Protection And The Integrity Of The Legal Profession, Susan Saab Fortney

Faculty Scholarship

Around the globe regulators are rethinking the scope of their mandates and responsibilities. They are assuming more expansive roles rather than limiting their efforts to disciplining lawyers after misconduct occurs. This Article examines such regulatory initiatives in three areas. First, it discusses developments related to proactive management-based programs in which regulators partner with lawyers who self-assess their firms’ management systems. Data reveal that such assessments help lawyers avoid problems through developing their firms’ ethical infrastructure. When misconduct occurs, injured persons often seek monetary redress. These persons may not be able to obtain recovery unless they have suffered substantial damages to …

Gender And Specialization In The Practice Of Divorce Law, Richard J. Maiman, Lynn Mather, Craig A. Mcewen

Maine Law Review

In the past two decades, the gender composition of the legal profession in the United States has changed dramatically. While women comprised less than five percent of the nation's lawyers in 1970, the proportion of women lawyers had increased to more than 19% by the end of 1988, and roughly 40% of new lawyers each year are now women. However, the movement of women into the legal profession has not been easy. As a consequence, considerable commentary has been focused on the significant problems of sexual harassment, discrimination, and other forms of gender bias, and on such issues as the …

Gender And Specialization In The Practice Of Divorce Law, Richard J. Maiman, Lynn Mather, Craig A. Mcewen

Maine Law Review

In the past two decades, the gender composition of the legal profession in the United States has changed dramatically. While women comprised less than five percent of the nation's lawyers in 1970, the proportion of women lawyers had increased to more than 19% by the end of 1988, and roughly 40% of new lawyers each year are now women. However, the movement of women into the legal profession has not been easy. As a consequence, considerable commentary has been focused on the significant problems of sexual harassment, discrimination, and other forms of gender bias, and on such issues as the …

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 …

Paying For Law School: Law Student Loan Indebtedness And Career Choices, Christopher J. Ryan Jr.

Law Faculty Scholarship

No abstract provided.

The Drive To Advise: A Study Of Law Students At A Pro Bono Brief Advice Project, Linda F. Smith

Utah Law Faculty Scholarship

Law school aims to teach lawyering skills as well as legal analysis. While all students must acquire the skills of legal analysis, research and writing, law schools may decide what other skills to teach. Students also acquire skills and habits in informal ways, through clerkship experiences or pro bono volunteer work. However, there has been almost no study of what “skills” students pick up in these informal ways, and whether there are skills that would better be learned as part of the curriculum. This study looks at the skill of legal interviewing employed by students in a pro bono brief …

Professional Identity Formation Through Pro Bono Revealed Through Conversation Analysis, Linda F. Smith

Utah Law Faculty Scholarship

Law school is supposed to teach legal analysis and lawyering skills as well as mold law students’ professional identities. Pro Bono work provides an opportunity for law students to use their legal knowledge and skills and to develop their identities as emerging legal professionals. As important as both pro bono work and identity formation are, there has been very little research regarding how pro bono contributes to students’ identity formation. This paper utilizes a data set of over forty student-client consultations at a pro bono brief advice clinic that have been recorded and transcribed. It uses conversation analysis to study …

Sociolegal Research, The Law School Survey Of Student Engagement, And Studying Diversity In Judicial Clerkships, Shih-Chun Steven Chien, Ajay K. Mehrotra, Xiangnong Wang

Law Faculty Articles and Essays

The Law School Survey of Student Engagement (LSSSE) is an extraordinary asset for examining a vast array of topics related to the educational experiences of law students. By focusing on student-oriented surveys, LSSSE provides law schools and researchers an invaluable opportunity to delve into a wide range of issues dealing with the law student experience, including the career preferences and expectations of students throughout their law school years. In particular, there remains a wealth of opportunity for scholars interested in using LSSSE data to explore issues of diversity, equity, and inclusion in legal education and the profession.

The American Bar …

The Bar Exam And The Covid-19 Pandemic: The Need For Immediate Action, Patricia E. Salkin, Eileen Kaufman, Claudia Angelos, Sara J. Berman, Mary Lu Bilek, Carol L. Chomsky, Andrea A. Curcio, Marsha Griggs, Joan W. Howarth, Deborah Jones Merritt, Judith Welch Wegner

Scholarly Works

The novel coronavirus COVID-19 has profoundly disrupted life in the United States. Schools and universities have closed throughout much of the country. Businesses have shuttered, and employees are working from home whenever possible. Cities and states are announcing lockdowns in which citizens may leave their homes only for vital errands or exercise.

Medical experts advise that at least some of these restraints will continue for 18 months or more—until a vaccine is developed, tested, and administered widely. It is possible that localities will be able to lift some of these restrictions (such as lockdowns and school closures) intermittently during those …

Access Law Schools & Diversifying The Profession, Deseriee A. Kennedy

Scholarly Works

Lawyers do not reflect the racial diversity in the United States. The legal profession continues to struggle with ways to achieve and maintain racial diversity. Law schools play a critical role in the path to practice, and therefore an examination of the barriers to the profession they created is warranted. This essay critiques the over-reliance on standardized testing in law school admissions and advocates for an open admissions process that prioritizes racial and academic diversity. It suggests that the benefits of minimizing the role of standardized tests far outweigh any perceived costs in legal education. This essay concludes that the …

Capitalizing On Healthy Lawyers: The Business Case For Law Firms To Promote And Prioritize Lawyer Well-Being, Jarrod F. Reich

Georgetown Law Faculty Publications and Other Works

This Article is the first to make the business case for firms to promote and prioritize lawyer well-being. For more than three decades, quantitative research has demonstrated that lawyers suffer from depression, anxiety, and addiction far in excess of the general population. Since that time, there have been many calls within and outside the profession for changes to be made to promote, prioritize, and improve lawyer well-being, particularly because many aspects of the current law school and law firm models exacerbate mental health and addiction issues, as well as overall law student and lawyer distress. These calls for change, made …

Incivility As Identity, Melissa Mortazavi

Faculty Articles

Incivility can undermine the legal profession’s work and effectiveness. However, existing scholarship, focused on explaining lawyer incivility as an overextension of zealous advocacy, poor training, or a business-driven model of lawyering, has misconceived a key facet of incivility. Prevailing wisdom largely neglects that lawyers use incivility to react and position themselves within the sociopolitical norms of society in which they live. Civility (or the lack thereof) in the legal profession, may be less about clients and economic pressures than about lawyers affirming their political, class, and gender identities. Once the legal profession recognizes that civility is significantly about lawyers affirming …

Is The Legal Profession Finally Ready For The Institutional Change Necessary To Yield Greater Diversity?, Carla D. Pratt

Other Faculty Publications

No abstract provided.

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

Scholarly Articles in Law Reviews & 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 …

Capitalizing On Healthy Lawyers: The Business Case For Law Firms To Promote And Prioritize Lawyer Well-Being, Jarrod F. Reich

Faculty Scholarship

This Article is the first to make the business case for firms to promote and prioritize lawyer well-being. For more than three decades, quantitative research has demonstrated that lawyers suffer from depression, anxiety, and addiction far in excess of the general population. Since that time, there have been many calls within and outside the profession for changes to be made to promote, prioritize, and improve lawyer well-being, particularly because many aspects of the current law school and law firm models exacerbate mental health and addiction issues, as well as overall law student and lawyer distress. These calls for change, made …