Disqualifying Defense Counsel: The Curse Of The Sixth Amendment,
2014
St. Mary's University
Disqualifying Defense Counsel: The Curse Of The Sixth Amendment, Keith Swisher
St. Mary's Journal on Legal Malpractice & Ethics
Lawyer disqualification—the process of ejecting a conflicted lawyer, firm, or agency from a case—is fairly routine and well-mapped in civil litigation. In criminal cases, however, there is an added ingredient: the Sixth Amendment. Gideon, which is celebrating its fiftieth anniversary, effectively added this ingredient to disqualification analysis involving indigent state defendants although it already existed in essence for both federal defendants and defendants with the wherewithal to retain counsel. Once a defendant is entitled to counsel, the many questions that follow include whether and to what extent conflicts of interest—or other misconduct—render that counsel constitutionally ineffective. Most cases and commentary …
“Payability” As The Logical Corollary To “Collectibility” In Legal Malpractice,
2014
St. Mary's University
“Payability” As The Logical Corollary To “Collectibility” In Legal Malpractice, Daniel D. Tostrud
St. Mary's Journal on Legal Malpractice & Ethics
The collectibility requirement as part of the legal malpractice plaintiff’s affirmative case is well-established and regarded by most courts as a critical part of the plaintiff’s proof of proximate causation. Conversely, where the legal malpractice plaintiff was the defendant in the underlying lawsuit, to be successful in the malpractice suit, the plaintiff must prove that it had a meritorious defense that would have made a difference to the outcome of the case had the lawyer properly asserted and pursued the defense. Prompted by the conflicting opinions of two federal courts on this issue, courts have begun to discuss whether the …
Online Legal Advice: Ethics In The Digital Age,
2014
St. Mary's University
Online Legal Advice: Ethics In The Digital Age, Paige A. Thomas
St. Mary's Journal on Legal Malpractice & Ethics
The rise of the Internet changed the way initial interactions between lawyers and prospective clients happen. Unfortunately, a host of problems concerning privacy rights and consumer usage have emerged. In this digital age, where immediacy and response time are driving factors in an attorney’s online presence, the approach to establish an attorney-client relationship is far more informal. Due to the quick rise of the Internet and social media, the Model Rules of Professional Conduct do not offer a clear answer for attorneys using social media. An inherent danger lies in off-the-cuff remarks, made on the Internet—a platform generally associated with …
Intra Law Firm Communications Regarding Questionable Attorney Conduct.,
2014
St. Mary's University
Intra Law Firm Communications Regarding Questionable Attorney Conduct., Evan King, Jeffrey A. Parness
St. Mary's Journal on Legal Malpractice & Ethics
When questions are raised regarding a law firm attorney's representation of a firm client, the questioned attorney often wishes to seek legal counsel. A conferral will often benefit the attorney, the firm, and the client. Conferences regarding questioned conduct should be encouraged, not discouraged. To encourage these beneficial conferrals, a broad attorney-client communication privilege and a broad work-product protection (or privilege) should be available. Availability should not be dependent upon whether in-house, outside, or other legal counsel is employed. While earlier federal precedents were split regarding the availability of the attorney-client communication privilege in the in-house counsel setting, increasingly therein …
The Agony Of Modern Legal Ethics, 1970-1985.,
2014
St. Mary's University
The Agony Of Modern Legal Ethics, 1970-1985., Michael Ariens
St. Mary's Journal on Legal Malpractice & Ethics
When the American Bar Association (ABA) adopted its Code of Professional Responsibility at its annual meeting in August 1969, the American legal profession was a publicly respected and economically vibrant body. Lawyers, though always more feared than loved, became increasingly important in post-World War II America. The demand for their services exploded for a quarter-century, and lawyers assumed an increased role in the economic and political life of the United States. During the 1950s and early 1960s, the Cold War led American lawyers and other public figures to re-emphasize the rule of law as defining the difference between the United …
Avoid Being A Defendant: Estate Planning Malpractice And Ethical Concerns.,
2014
St. Mary's University
Avoid Being A Defendant: Estate Planning Malpractice And Ethical Concerns., Gerry W. Beyer
St. Mary's Journal on Legal Malpractice & Ethics
An estate planner may become a defendant in a case involving an estate he or she planned in two main ways. First, the attorney may have performed his or her services in a negligent manner potentially creating exposure to malpractice liability. Second, the attorney's conduct may have lapsed below ethically acceptable standards. This Article reviews the exposure an estate planner may have to malpractice liability with emphasis on Texas law and then focuses the reader's attention on ethical issues that may arise while preparing or executing the plan. The author hopes that by pointing out potentially troublesome areas, the reader …
Characterizing Ghostwriting.,
2014
St. Mary's University
Characterizing Ghostwriting., Debra Lyn Bassett
St. Mary's Journal on Legal Malpractice & Ethics
It is well known that legal services are costly and that existing pro bono services are inadequate to help every individual who would benefit from legal assistance. Compounding this unmet need are various restrictions on the types of clients and types of cases that qualify for pro bono services. For example, Legal Services Corporation lawyers may not represent undocumented individuals, and may not undertake a representation in an abortion, desegregation, or assisted suicide matter. One attempt to mitigate this unmet need is ghostwriting. Analogous to presidential speechwriting, ghostwriting in the legal context occurs when a lawyer drafts a pleading or …
Controversial Defenses To Legal Malpractice Claims: Are Attorney-Experts Being Asked To Be Advocates?, David S. Caudill
St. Mary's Journal on Legal Malpractice & Ethics
Attorney-experts in legal malpractice litigation are like many other experts. Although easily distinguishable from experts offering science based testimony, attorney expertise is similar to that of witnesses offering experience-based testimony, and very much like the expertise of a physician in a medical malpractice case. An attorney-expert is, however, somewhat unique among experts in terms of the type of expertise offered, the inherent risk that the expert's testimony will invade the province of the judge or jury, and, I believe, the risk of over-testifying. First, there is a problem of defining the attorney-expert's "expertise" to ensure that the expert is not …
A Professional (Lack Of) Courtesy: The Emergence Of Expert Testimony In Legal And Medical Malpractice Cases.,
2014
St. Mary's University
A Professional (Lack Of) Courtesy: The Emergence Of Expert Testimony In Legal And Medical Malpractice Cases., Jeffrey I.H. Soffer
St. Mary's Journal on Legal Malpractice & Ethics
This Article investigates the role of expert testimony in legal malpractice and medical malpractice cases; analyzing similarities and differences between the two and the evolution of case law in this context. The Article also examines numerous challenges potential expert witnesses face, including harsh backlash from their colleagues and repercussions from their professional organizations. Finally, the Article discusses the future of the legal malpractice and medical malpractice landscape as it pertains to expert testimony and what we should look for moving forward.
Is My Case Mandamusable: A Guide To The Current State Of Texas Mandamus Law.,
2014
St. Mary's University
Is My Case Mandamusable: A Guide To The Current State Of Texas Mandamus Law., Marialyn Barnard, Lorien Whyte, Emmanuel Garcia
St. Mary's Law Journal
It is important for all Texas lawyers to be knowledgeable about mandamus relief. Unfortunately, there is no bright line rule in terms of mandamus relief. The general rule for when mandamus relief may be granted is when the trial court clearly abused its discretion, and there is not an adequate remedy available from a court of appeals. A clear of abuse of discretion is determined if no other trial court would have come to the same conclusion. In deciding if mandamus relief is proper, appellate courts apply a balancing test. The appellate court considers several factors including: preserving relator’s substantive …
The Computer Fraud And Abuse Act: An Attractive But Risky Alternative To Texas Trade Secret Law.,
2014
St. Mary's University
The Computer Fraud And Abuse Act: An Attractive But Risky Alternative To Texas Trade Secret Law., Paul Hanna, Matthew Leal
St. Mary's Law Journal
Abstract Forthcoming.
Mandamus Review Of The Granting Of The Motion For New Trial: Lost In The Thicket.,
2014
St. Mary's University
Mandamus Review Of The Granting Of The Motion For New Trial: Lost In The Thicket., Richard E. Flint
St. Mary's Law Journal
A trial court’s broad discretion in granting a new trial has been one of the mainstays of Texas jurisprudence since early statehood. Historically, this discretion was not subject to review through the ordinary appellate processes. This principle remains inviolate today, as the granting of a new trial is an interlocutory order from which the appellate courts of Texas do not have jurisdiction. Furthermore, the use of an original mandamus proceeding to compel a trial court to set aside the granting of a new trial has had only limited application. However, in response to the case of In re Columbia Medical …
A Guide To Properly Using And Responding To Requests For Admission Under The Texas Discovery Rules.,
2014
St. Mary's University
A Guide To Properly Using And Responding To Requests For Admission Under The Texas Discovery Rules., Robert K. Wise, Katherine Hendler
St. Mary's Law Journal
This article’s purpose is to provide a guide for properly using and responding to requests for admission under the Texas discovery rules. Requests for admission are an extremely effective discovery tool when used and responded to properly. Their use can save litigants considerable time and expense by eliminating and narrowing the issues involved in the cause of action. Often misunderstood, requests for admission are perhaps the least used of the major discovery devices available to litigants. Even though requests for admission have the potential to eliminate unnecessary proof at trial, streamline discovery and motion practice, and reduce pretrial and trial …
A Statute Overtaken By Time: The Need To Reinterpret Federal Rule Of Evidence 803(8)(A)(Iii) Governing The Admissibility Of Expert Opinions In Government Investigative Reports.,
2014
St. Mary's University
A Statute Overtaken By Time: The Need To Reinterpret Federal Rule Of Evidence 803(8)(A)(Iii) Governing The Admissibility Of Expert Opinions In Government Investigative Reports., Edward J. Imwinkelried
St. Mary's Law Journal
Abstract Forthcoming.
The Accommodation Doctrine Revisited: Implications In Law And In Policy.,
2014
St. Mary's University
The Accommodation Doctrine Revisited: Implications In Law And In Policy., Courtney R. Potter
St. Mary's Law Journal
Abstract Forthcoming.
Sustainability Policy’S Inherent Dilemmas – Exemplified Via Critical Examination Of The Las Vegas Metropolitan Sustainability Campaign,
2014
Central Washington University
Sustainability Policy’S Inherent Dilemmas – Exemplified Via Critical Examination Of The Las Vegas Metropolitan Sustainability Campaign, Kathryn A. Zimmerman
All Master's Theses
In response to a dual problem of critical water scarcity and rapid population growth, leaders of metropolitan Las Vegas implemented a region-wide, internationally marketed sustainability campaign. Preliminary studies found that, while sustainability policy attains its rhetorical goals, solutions initiated not only perpetuate but also purposefully expand the original dual problem to justify continuous water resource acquisitions. To examine this sustainability conundrum constructed by leadership—problem-perpetuation rather than problem-resolution—a critical examination in resource management asked two basic questions: what is being sustained and by what means? Via this inquiry, specific processes by which leaders perpetuate problems can be identified; and, so-informed, new …
Reflections On Presumed Incompetent: The Intersections Of Race And Class For Women In Academia Symposium - The Plenary Panel,
2014
Florida Agricultural and Mechanical University
Reflections On Presumed Incompetent: The Intersections Of Race And Class For Women In Academia Symposium - The Plenary Panel, Maritza I. Reyes
Journal Publications
No abstract provided.
Opening Borders: African Americans And Latinos Through The Lens Of Immigration,
2014
Florida A&M University College of Law
Opening Borders: African Americans And Latinos Through The Lens Of Immigration, Maritza I. Reyes
Journal Publications
African-American and Latino voter turnout during the 2008 and 2012 presidential elections hit record numbers. Polls show that the immigration debate influenced Latino voter turnout and preference. Presidential candidate Barack Obama's voiced support of comprehensive immigration reform strengthened his lead among Latino voters in 2008 and, once in office, his executive policy of granting temporary protection to DREAMers solidified his lead among Latino voters in 2012. Both elections showed the power that minority groups can exert when they vote in support of the candidate. If the demographic changes continue as currently estimated, African Americans and Latinos will contribute in large …
Mayo, Myriad, And The Future Of Innovation In Molecular Diagnostics And Personalized Medicine,
2014
University of Missouri - Kansas City, School of Law
Mayo, Myriad, And The Future Of Innovation In Molecular Diagnostics And Personalized Medicine, Christopher M. Holman
Faculty Works
Contrary to popular perception, the Supreme Court’s recent decision in Association for Molecular Pathology v. Myriad Genetics, Inc., finding certain patent claims reciting isolated genomic DNA molecules patent ineligible is likely to have a relatively minor impact on the patenting of diagnostics and personalized medicine. Method claims generally play a much more important role than isolated DNA claims in the patenting of innovations in this important technological sector, and the Court’s earlier decision in Mayo v. Prometheus Labs that held claims directed towards non-genetic methods of personalized medicine to be patent ineligible will likely prove significantly more problematic in this …
Book Review: Lawless Capitalism: The Subprime Crisis And The Case For An Economic Rule Of Law,
2014
University of Missouri - Kansas City, School of Law
Book Review: Lawless Capitalism: The Subprime Crisis And The Case For An Economic Rule Of Law, William K. Black
Faculty Works
No abstract provided.
