Legal Ethics and Professional Responsibility Commons^™

An Article We Wrote To Ourselves In The Future: Early 21st Century Views On Ethics And The Internet., David Hricik, Prashant Patel, Natasha Chrispin

St. Mary's Journal on Legal Malpractice & Ethics

Written from the viewpoint of the year 2050, this Article discusses the clash between legal ethics and the technological revolution of the early twenty-first century. As a result of ethics rules being applied to new technologies in ways never contemplated under traditional circumstances, lawyers had to be overly cautious when they used the Internet to correspond with or seek out clients, or otherwise promote their legal services. The lesson learned is that the legal community should reflect on the harm caused by over zealous regulation and take a more reasoned approach to the use of technology for the benefit of …

Shifting The Burden Of Proof On Causation In Legal Malpractice Actions., Jeffrie D. Boysen

St. Mary's Journal on Legal Malpractice & Ethics

Legal malpractice suits, like any negligence claim, require the plaintiff to meet all of the elements of the malpractice claim. Texas malpractice claims are based on professional negligence. In Texas, the elements a plaintiff must prove in a legal malpractice claim are: "(1) the attorney owed the plaintiff a duty; (2) the attorney breached that duty; (3) the breach proximately caused the plaintiffs injuries; and (4) damages occurred." Most jurisdictions, including Texas, place the burden on the plaintiff to meet all elements of the claim, including causation. However, a significant minority of jurisdictions allow the burden to shift to the …

Tax Lawyers, Tax Defiance, And The Ethics Of Casual Conversation,, Michael Hatfield

Articles

This essay is to help tax lawyers decide how to handle casual conversations centered on denying, defying, or destroying the tax system. One option is to walk away, ending the conversation and silencing the dialogue. The next option is to engage. I want to persuade tax lawyers that they should usually engage in the conversation. I try to do this in Part III.

There are two kinds of legal ethics essays, and one must choose which kind to write, and it is useful to the reader to know upfront which kind the author chose to write. One kind begins with …

Issues Concerning Charges For Driving While Intoxicated In Texas Federal Courts., Brian L. Owsley

St. Mary's Law Journal

Each year numerous defendants appear in courts located in Texas, both state and federal, charged with offenses related to driving while intoxicated (DWI). Defendants appearing before state courts are prosecuted pursuant to Texas statutes, regulations, and binding case law. In certain circumstances, defendants appearing in federal courts face the same statutory elements of a crime and the same potential penalties as in a Texas state court. In many of the cases, however, statutory elements and potential penalties differ. Furthermore, certain rights and regulations afforded to Texas state defendants are unavailable to those charged in federal courts located in the state. …

Home Sweet Homestead - Not If You Are Subject To A Mandatory Homeowners' Association., Bridget M. Fuselier

St. Mary's Law Journal

Changes must be made to current Texas laws to strike a proper balance between the homeowners’ rights and the homeowners association’s (HOA) rights. The Texas Supreme Court’s decision in Inwood North Homeowners’ Ass’n v. Harris allows liens to attach to what would otherwise be considered homestead-protected property. Although the promise in Inwood was set forth in writing, touched and concerned the land, was intended to run with the land, and was properly recorded, that did not create a contractual lien. The court, however, incorrectly combined the concepts of liens and covenants. Furthermore, the court seemed to ignore the important and …

What Happened: Confronting Confrontation In The Wake Of Bullcoming, Bryant, And Crawford., Dibrell Waldrip, Sara M. Berkeley

St. Mary's Law Journal

Crawford v. Washington and its progeny demonstrate the difficulty of delineating both the core and the perimeter of the Confrontation Clause. Crawford abrogated Ohio v. Roberts, forcing trial lawyers to re-evaluate the use of various types of hearsay formerly admitted upon a finding of adequate “indicia of reliability.” Later the Court issued two decisions further altering the contours of Confrontation Clause jurisprudence. Michigan v. Bryant and Bullcoming v. New Mexico. With these options, the old Roberts “indicia of reliability” test transformed into the new “primary purpose” test to identify certain testimonial statements. By significantly altering the contours of Confrontation Clause …

Limiting The Foreclosure Power Of Texas Hoas With A Percentage Threshold Comment., Laci Ehlers

St. Mary's Law Journal

Abstract Forthcoming.

What Do We Mean By An Independent Judiciary, 38 Ohio N.U. L. Rev. 133 (2011), Michael P. Seng

UIC Law Open Access Faculty Scholarship

Issues continue to arise about judicial independence in the United States. The term judicial independence is often not defined with precision. Judicial independence has its roots in the doctrine of separation of powers. It is also grounded in due process and in ethical standards that require judges to be competent and impartial decision-makers. Judicial independence depends upon society having faith in the integrity of the courts. Accountability is thus the handmaid of an independent judiciary. This article defines both the structures and the ethical standards that ensure an independent judiciary.

Changes To The Culture Of Adversarialness: Endorsing Candor, Cooperation And Civility In Relationships Between Prosecutors And Defense Counsel, Lissa Griffin

Elisabeth Haub School of Law Faculty Publications

Following a brief history of prior versions of the relevant Standards in Part I, Part II describes the current draft of the proposed Prosecution and Defense Functions, focusing on new requirements for candor, civility, and cooperation. The article concludes that the proposed revisions represent a healthy step toward a more reliable, trustworthy, and efficient criminal justice system. The revisions explicitly recognize the central, powerful, and multidimensional role of the prosecutor and attempt to respond accurately and realistically to the needs and demands of that role. As the drafting and approval process continues, certain specific areas need greater clarification and thus …

Getting Good Results For Clients By Building Good Working Relationships With 'Opposing Counsel', John M. Lande

Faculty Publications

Lawyers’ relationships with their “opposing counsel” make a big difference in how well they handle their cases. “Opposing counsel” often do oppose each other, sometimes quite vigorously, though they also regularly cooperate with each other. In the normal course of litigation, lawyers need to cooperate on many procedural matters. In some cases, they also cooperate to achieve their respective clients’ substantive interests. If the lawyers have a bad relationship, the case is likely to be miserable for everyone involved. If they have a good relationship, they are more likely to agree on procedural matters, exchange information informally, take reasonable negotiation …

The Jurisprudential Turn In Legal Ethics, Kate Kruse

Faculty Scholarship

When legal ethics developed as an academic discipline in the mid-1970s, its theoretical roots were in moral philosophy. The early theorists in legal ethics were moral philosophers by training, and they explored legal ethics as a branch of moral philosophy. From the vantage point of moral philosophy, lawyers’ professional duties comprised a system of moral duties that governed lawyers in their professional lives, a “role-morality” for lawyers that competed with ordinary moral duties. In defining this “role-morality,” the moral philosophers accepted the premise that “good lawyers” are professionally obligated to pursue the interests of their clients all the way to …

Simulations In Clinics, Contract Drafting, And Upper-Level Courses, Carole O. Heyward, David M. Epstein, Helen S. Scott, Daniel B. Bogart

Law Faculty Articles and Essays

I teach in a transactional clinic called the Urban Development Law Clinic. In my Clinic, we represent non-profit tax-exempt organizations that engage in real estate, economic, and community development. Some of our clients include Greater Cleveland Habitat for Humanity and Karamu House, which is a theater and community arts center. We serve as general counsel for some clients and provide legal advice on an as needed basis for others. The Clinic provides legal advice on real estate matters, corporate governance, transactions, and tax issues. The complexity of matters that we handle ranges from drafting a code of regulations to representing …

Raise Your Hand And Swear To Be Civil: Defining Civility As An Obligation Of Professional Responsibility, Donald E. Campbell

Journal Articles

The need to reclaim "civility" in the practice of law has become a rallying cry in the profession. Lack of civility has been blamed on everything from an increase in the cost of litigation to the cause of the public's lost faith in the legal profession. Further, courts are increasingly willing to sanction a lawyer solely for "uncivil" conduct. This article examines the puzzle of civility by addressing two fundamental questions. First, what are the obligations of civility? This question is answered using content analysis to analyze civility codes adopted by thirty-two state bar associations. From this analysis ten core …

A Shift In Power: Why Increased Urban Drilling Necessitates A Change In Regulatory Authority Comment., Riley W. Vanham

St. Mary's Law Journal

Historically, Texas has boasted a very lucrative oil and gas industry, which has been vital to the state’s successful economy. Due to increased drilling in urban areas, particularly the Barnett Shale, the number of affected surface owners multiplied overnight, attracting attention to oil and gas issues. Legislation has been purported to remedy the longtime conflict in Texas property law caused by the dominance of the mineral estate over the surface estate. But no bill has passed having major policy-change implications. Currently, local governments freely adopt and enforce oil and gas regulations. These ordinances vary from city-to-city, creating inconsistencies for operators …

Ethical Issues In Business And The Lawyer's Role, Robert J. Rhee, Carol Morgan, Tamar Frankel, Mark Fagan

UF Law Faculty Publications

The remarks by Professor Rhee "The Stand Alone Course Approach to Teaching Business Ethics," Professor Morgan "Teaching Business Ethics in Transactional Skills Courses: An Integrated Approach," and Professors Tamar Frankel and Mark Fagan "Teaching Business Ethics: A Collaborative Approach" were made at the conference on "Transactional Education: What's Next?" held at Emory University School of Law, June 4, 2010.

Making Civility Democratic, Amy R. Mashburn

UF Law Faculty Publications

Historically, the concept of civility has been bound up with undemocratic notions of hierarchy and deference. Using insights from studies of civility by social psychologists, linguists, sociologists, historians, and political theorists, this article advances the theory that the legal profession’s self-consciously isolating professionalism ideology allows judges and disciplinary tribunals to apply deference-based notions of civility in their decisions to sanction lawyers. This theory would predict that the lawyers most likely to be sanctioned for incivility and rudeness are those from whom society expects the most deference. To test this theory, the author conducted an empirical study of every available case …

Evidence - Privilege Law - How Arkansas's New Rule Of Evidence Codifies "Selective Waiver" Of The Attorney-Client Privilege And Work-Product Protection And An Argument For A More Moderate Approach, Jonathan D. Mcfadden

University of Arkansas at Little Rock Law Review

No abstract provided.

Professional Responsibility For The Pro Se Attorney., Margaret Raymond

St. Mary's Journal on Legal Malpractice & Ethics

This Article considers how pro se lawyers should be treated under the law of professional responsibility. While courts have addressed whether various aspects of the law of lawyering should be applied to lawyers acting pro se, they have not done so systematically. The Article first demonstrates that the law is not consistent in its treatment of pro se lawyers. It then argues that a purpose-based approach to the issue provides a consistent, rational, and reproducible way to analyze the question. It concludes that whether a particular rule of professional responsibility should apply to a pro se lawyer should be driven …

Midnight In The Garden Of Good Faith: Using Clawback Actions To Harvest The Equitable Roots Of Bankrupt Ponzi Schemes, Jessica D. Gabel

Faculty Publications By Year

This paper addresses an increasingly relevant issue in bankruptcy – does it make sense to protect “good faith” investors who have invested (some quite profitably) in a Ponzi scheme from clawback actions by the trustee? This article presents issues of economic equity (equitable payouts to individual creditors vs. equitable distribution among all creditors); bankruptcy policy (retaining antiquated notions of good faith in an ever-evolving financial playground); and judicial inconsistency (disparities in the treatment on Ponzi investors). * In the aftermath of the financial crisis, investors have attempted to pull their money back from the markets, collapsing hundreds of Ponzi schemes …

Ethics In An E-Environment, Maureen Cahill

Articles, Chapters and Online Publications

Computers and the Internet have profoundly changed the mechanics of the practice of law. Client communication; legal research; and document drafting, storage and transmittal are increasingly paper free. This electronic revolution has greatly increased efficiency, productivity and convenience in law offices. However, at the same time, this shift to digital tools has also complicated many traditional ethical considerations for those in the legal profession, and these advances in technology give rise to several issues that may be governed by rules of professional conduct.