Legal Ethics and Professional Responsibility Commons^™

Of Lodestars And Lawyers: Incorporating The Duty Of Loyalty Into The Model Code Of Conduct, Colin Jackson, Richard Devlin, Brent Cotter

Articles, Book Chapters, & Popular Press

The “conflicts quartet” of cases decided by the Supreme Court of Canada can be understood as part of a long-standing tension in Anglo-Canadian jurisprudence between two competing conceptions of a lawyer’s professional identity. In the most recent of these cases, C.N. Railway v. McKercher, the Supreme Court conclusively preferred the loyalty-centred conception of the practice of law over the entrepreneurial conception. While the Federation of Law Societies of Canada amended its Model Code of Professional Conduct in 2014 in response to the Supreme Court’s decision in McKercher, this article argues that those amendments did not go far enough. The authors …

Section 276 Misconstrued: The Failure To Properly Interpret And Apply Canada's Rape Shield Provisions, Elaine Craig

Articles, Book Chapters, & Popular Press

Despite the vintage of Canada’s rape shield provisions (which in their current manifestation have been in force since 1992), some trial judges continue to misinterpret and/or misapply the Criminal Code provisions limiting the use of evidence of a sexual assault complainant’s other sexual activity. These errors seem to flow from a combination of factors including a general misunderstanding on the part of some trial judges as to what section 276 requires and a failure on the part of some trial judges to properly identify, and fully remove, problematic assumptions about sex and gender from their analytical approach to the use …

The Ethical Identity Of Sexual Assault Lawyers, Elaine Craig

Articles, Book Chapters, & Popular Press

Despite progressive law reforms, sexual assault complainants continue to experience the criminal justice response to the violations that they have suffered as unsatisfactory, if not traumatic. One emerging response to this dilemma involves greater consideration of the ethical boundaries imposed on lawyers that practice sexual assault law. What is the relationship between a criminal lawyer’s ethical duties and the reforms to the law of sexual assault in Canada? How do lawyers themselves understand the ethical limits imposed on their conduct of a sexual assault case? How do lawyers that practice in this area of law comprehend their role in the …

The Power Of Lawyer Regulators To Increase Client & Public Protection Through Adoption Of A Proactive Regulation System, Laurel S. Terry

Faculty Scholarly Works

This Article focuses on those who regulate U.S. laywers. The Article argues that the lawyers who head regulatory bodies in the United States have the ability to adjust the focus of the regulator for which they work in a way that will increase client and public protection. The Article further argues that it is appropriate for lawyers in these positions to exercise this power and that they should do so. The Article concludes by offering two concrete recommendations.

The first recommendation is that those who are in charge should, upon reflection, adopt a mindset in which they recognize that the …

The Power Of Lawyer Regulators To Increase Client & Public Protection Through Adoption Of A Proactive Regulation System, Laurel Terry

Faculty Scholarly Works

The idea behind this Article is Ben Franklin's statement that "an ounce of prevention is worth a pound of cure." This Article builds on the author's prior articles that argue that one can think about lawyer regulation issues as involving who-what-when-where-why-and-how to regulate issues. This Article addresses the issue of "WHEN" regulation should occur. It argues that regulators should be trying to PREVENT problems, as well as responding AFTER problems occur. This Article is primarily directed toward those who regulate U.S. lawyers. The Article argues that the lawyers who head regulatory bodies in the United States have the ability to …

Trafficking Smuggled Migrants: An Issue Of Vulnerability, Rachel A. Hews

Global Tides

This paper analyzes why the UN’s efforts against the sex trafficking of smuggled migrants, specifically regarding the Palermo and Smuggling Protocols, have been inadequate in preventing migrant smuggling. It concludes that the crime-based focus on prosecution overshadows prevention of the crime and protection of the victims, and that a human rights approach addressing the vulnerability of smuggled migrants would be more effective in reducing migrant smuggling long-term. Proposed solutions include decreasing both the “push” and “pull” factors of migration by ratifying existing legislation regarding basic human rights, implementing national policies that increase migrant rights in destination countries, and shifting further …

Correlates Of Ethical Sensitivity And Reasoning And Their Potential Influence On Accounting Education, Michael Francis Ruff

2016

This dissertation consists of three studies investigating the impact of accounting ethics interventions on graduate students in accountancy. This dissertation relies primarily on neo-Kohlbergian theory and Rest’s framework of ethical behavior (Rest 1979, 1986) because this framework has figured prominently in the body of accounting and auditing research on ethics and professionalism.

The first study reviews and synthesizes the current state of the literature regarding accounting ethics. This literature review starts with definitions and follows with a history and evolution of ethics theories, with an emphasis on neo-Kohlbergian theory, Rest’s Four Component Model of ethical behavior, the Defining Issues Test …

Bridge Over Troubled Waters: Resolving The Ri Grande (Rio Bravo) Water Dispute., Ruben R. Barrera, Dan A. Naranjo

St. Mary's Law Journal

Abstract Forthcoming.

The Dilemma Of Interpreting Rules Of Civil Procedure: A Proposal For Elastic Formalism., L. Wayne Scott

St. Mary's Law Journal

When lawyers are well prepared, know the law, present the law, and have it ignored by judges who interpret the law in their own way, it can be frustrating. When courts publish opinions embodying this attitude, students, too, become frustrated or conclude that the law is whatever judges decide it should be. This Article does not focus on unethical judges who decide cases with wrong motives but, rather, it focuses on ethical judges who are faced with “hard” cases and have the dilemma of deciding the case, either by the rule or by the judge’s concept of fairness. In both …

Suppressing The Truth: States' Purposeful Violation Of The Right Of No Cruel Or Unreal Punishment In Lethal Injection Executions., Nadine G. Rodriguez

St. Mary's Law Journal

Abstract Forthcoming.

A Law And Economics Analysis Of The Duty Of Utmost Good Faith (Uberrimae Fidei) In Marine Insurance Law For Protection And Indemnity Clubs., Elizabeth Germano

St. Mary's Law Journal

Writing for the Supreme Court in The Lottawanna in 1875, Justice Joseph P. Bradley envisioned federal and state regulation of maritime affairs as “a system of law coextensive with, and operating uniformly in, the whole country.” He thought state involvement in maritime law defeated the consistency and uniformity the Constitution sought to achieve for interstate and international commerce. Over 100 years later, Justice Antonin Scalia, describing the current relationship between state and federal regulation in the admiralty arena, stated: “It would be idle to pretend that the line separating permissible from impermissible state regulation is readily discernible in our admiralty …

The Admissibility Of Aerial Photographs - Evidentiary Foundations., Kristopher R. Hufstetler

St. Mary's Law Journal

Services such as Google Maps and MapQuest significantly impact how consumers use the Internet. For as much as they contribute to Internet use, issues arise concerning the use of satellite images and aerial photographs in the context of litigation. Historical concerns about satellite and aerial imagery typically involved expectations of privacy and the application of the Fourth Amendment. Courts and citizens alike express concern with when and where privacy ends with respect to aerial views. Concerns as to the admissibility of aerial photographs have also been prominent. Specifically, interest in admissibility of these photographs focuses on sufficiency, relevance, and accuracy. …

Pro Bono At University Of Richmond School Of Law, Tara L. Casey

Law Faculty Publications

“Pro bono” is often the first legal Latin that a law student learns, before other courses come in with their res ipsa loquitur and in flagrante delicto. The reason for this primacy is the greater emphasis law schools have placed upon pro bono programming in the past ten to fifteen years.

Duties To Organizational Clients, William H. Simon

Faculty Scholarship

Loyalty to an organizational client means fidelity to the substantive legal structure that constitutes it. Although this principle is not controversial in the abstract, it is commonly ignored in professional discourse and doctrine. This article explains the basic notion of organizational loyalty and identifies some mistaken tendencies in discourse and doctrine, especially the "Managerialist Fallacy" that leads lawyers to conflate the client organization with its senior managers. The article then applies the basic notion to some hard cases, concluding with a critical appraisal of the rationale for confidentiality with organizational clients.

The Past, Present, And Future Of Predictive Coding, Matthew G. Kenney

Florida A & M University Law Review

Electronic discovery, or e-discovery, refers to the discovery of electronically stored documents and images.' Examples of e-discovery related documentation would include email, digital versions of paper documents (e.g. MS Word, PDF, Excel, and PowerPoint), social media postings, digital photos, Global Positioning System data, and content within computerized databases, etc. Digital data stored on computers, smartphones, tape drives, hard-drives, portable digital storage devices and the like would fall under the domain of e-discovery. Collecting and sorting massive amounts of electronically stored data presents both opportunities and challenges for lawyers.

For context: In 2015, electronic discovery was a $10.2 billion global industry. …

Running Past Landmines--The Estate Attorney's Dilemma: Ethically Counseling The Client With Alzheimer's Disease, Joseph Karl Grant

Journal Publications

This Article examines the ethical dilemmas faced by attorneys who represent clients suffering from Alzheimer's disease. To do so, this Article raises three (3) hypothetical case studies,and applies the ABA Model Rules of Professional Conduct, and the American College of Trust and Estate Counsel ("ACTEC") Commentaries, where appropriate, to those hypothetical case studies. Additionally, this Article proposes initiatives to ameliorate the lack of awareness and discussion of Alzheimer's disease in the law school curriculum, and finally, modest initiatives that the practicing bar can embrace to further a discussion and awareness among practicing attorneys about the ethical dilemma attorneys face in …

The "New Normal" For Educating Lawyers, Nicola A. Boothe-Perry

Journal Publications

This article examines who law professors are and what their roles consist of when educating law students. The article discusses the ethical and moral dilemmas that law professors can find themselves in while trying to be competent and trustworthy in their teaching. The article also discusses the role of mentor and counselor as they guide students’ in creating their professional identities.

Practicing Practical Wisdom, Deborah J. Cantrell, Kenneth Sharpe

Publications

Wisdom is not an innate character trait; no one automatically is wise; wisdom is learned and acquired. More importantly, one can learn and acquire wisdom intentionally and skillfully — one can practice it. And, if the practice is structured in particular ways, the practice will improve one’s capacities to act with wisdom. This article clarifies theoretical muddiness and pedagogical imprecision by bringing together two important and robust strands of legal ethics literature. The first strand focuses on what the appropriate role of a lawyer is in a just society, while the second focuses on how a lawyer learns to be, …

Compensating The Wrongfully Convicted: A Proposal To Make Victims Of Wrongful Incarceration Whole Again, Alanna Trivelli

Law Student Publications

Part I of this comment presents a brief overview of the current state compensation systems for those who are wrongly imprisoned, including model legislation proposed by the Innocence Project and the current shortcomings of compensation statutes across the United States. Part II discusses the principles behind compensatory damages in tort law, and the foundation and reasoning for making a victim whole again. Varying forms of relief are also discussed. Part III applies these principles of tort law to the arena of wrongful convictions to show states have a responsibility to make victims of wrongful convictions whole again. Potential problems arising …

Everyone Makes Mistakes: Attorney's Fee Recovery In Legal Malpractice Suits, Sande L. Buhai

St. Mary's Journal on Legal Malpractice & Ethics

This Article argues that the American Rule should be changed for legal malpractice suits because the attorney–client relationship is the quintessential fiduciary relationship and because of the added concern of unequal information available to each party as a result of the large disparity in power. Attorneys must abide by ethical rules and owe fiduciary duties to their clients, which include the duties of competence, diligence, and loyalty. Because it is this very relationship that distinguishes legal malpractice suits from an ordinary lawsuit, awarding attorney’s fees to the damaged plaintiff client helps maintain fiduciary relationships and furthers the interests of justice. …