Legal Ethics and Professional Responsibility Commons^™

David Luban, Review Of Daniel Markovits, A Modern Legal Ethics: Adversary Advocacy In A Democratic Age, David Luban

Georgetown Law Faculty Publications and Other Works

Daniel Markovits offers a novel defense of the traditional partisan advocate’s role, based on the demands of personal integrity. Although he insists that the adversary system requires lawyers to lie and cheat (regardless of the particular ethics rules in place), it is possible to redescribe these lawyerly vices as the virtue of fidelity to a client, expressed through what John Keats called “negative capability”—a suppression of the self in order to allow someone else’s story to shine forth. These are first-personal moral ideals, and Markovits argues against the primacy of second- and third-personal moral ideals (such as Kantianism and utilitarianism) …

The Need For Prosecutorial Discretion, Stephanos Bibas

All Faculty Scholarship

No abstract provided.

The Ethic Of High Expectations, Jean Galbraith

All Faculty Scholarship

No abstract provided.

Understanding Missouri’S Rule 13: Preparing To Supervise A Student Practitioner, Patrick C. Brayer

Faculty Works

No abstract provided.

Soft-Core Perjury, Leonard M. Niehoff

Articles

Despite its greater pervasiveness, however, soft-core perjury has generated considerably less discussion and debate than hard-core perjury has. There are reasons for this, but they are not good ones. Indeed, we might summarize the matter this way: Lawyers tend to dismiss the soft-core perjury problem because they do not see it as a problem. They do not see it as an ethical problem, and they do not see it as a practical problem. They are wrong on both counts.

The idea that soft-core perjury poses no ethical problem comes from the view that the lawyer's dilemma-or trilemma, if you will-arises …

Opposition To Clinics Tests Attorney-Client Privilege; Students Working On Pro Bono Cases Leave Schools Vulnerable To Confidentiality Challenges, Patrick C. Brayer

Faculty Works

This National Law Journal article draws attention to past attempts by government and private parties to pierce the protections of the attorney client relationship, specifically confidentiality, when it comes to the representation of clients by law school clinics. Several law school clinics and innocence projects have defended themselves against actions by prosecuting attorney offices and opposing parties who have attempted to obtain information that is traditionally protected by state and federal confidentiality rules. Law school clinics, public interest organizations, innocence projects, government agencies and Public Defender organizations can better protect themselves from future attempts by opposing parties to invade the …

Can Compassionate Practice Also Be Good Legal Practice?: Answers From The Lives Of Buddhist Lawyers, Deborah J. Cantrell

Publications

What does it mean to say that one is a "good lawyer" in the United States? The dominant view is that a lawyer is a zealous advocate owing loyalty to, and taking direction from, the client. The lawyer is singularly focused and hyper-rationality is prized. This article challenges that narrative. Using the real lives of a group of lawyers across the United States, this article offers rich and nuanced descriptive data about the possibilities of "good lawyering" through compassion, equanimity, and an expanded notion of honesty. This article contributes importantly to the debate about what it means to be a …

Rights Talk And Patient Subjectivity: The Role Of Autonomy, Equality And Participation Norms, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

Patients themselves have transformed the role of the patient in the health care system, making it far more complex than it ever has been before. As a result, the conceptual root of our contemporary understandings of “patient” is an assumption of autonomous subjectivity, i.e., of an individual aware of and capable of acting on her choices for medical care. The Symposium on Patient-Centered Health Law and Ethics of which this Article is a part considers the most recent stage in this evolution of meanings: the concept of patient-centeredness, with its implication of provider deference to the patient’s perspective. Throughout the …

The Sacrificial Yoo: Accounting For Torture In The Opr Report, David Cole

Georgetown Law Faculty Publications and Other Works

When the Justice Department finally released the report of its Office of Professional Responsibility on the “torture memos,” recommending that the initial torture memo’s authors, John Yoo and Jay Bybee, be referred for bar discipline, John Yoo declared victory in op-eds in the Wall Street Journal and Philadelphia Inquirer. The report itself concluded that Yoo and Bybee had acted unethically, and quoted many of Yoo’s successors in office as condemning the memos as, among other things “slovenly,” “riddled with error,” and “insane.” But Yoo claimed victory because Associate Deputy Attorney General David Margolis vetoed its recommendation that he be referred …

Mapping The Issues: Public Health, Law And Ethics, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

The field of public health is typically regarded as a positivistic pursuit and, undoubtedly, our understanding of the etiology and response to disease is heavily influenced by scientific inquiry. Public health policies, however, are shaped not only by science but also by ethical values, legal norms, and political oversight. Public Health Law and Ethics: A Reader (expanded and updated 2nd ed., 2010) probes and seeks to illuminate this complex interplay, through a careful selection of government reports, scholarly articles, and court cases together with discussion and analysis of critical problems at the interface of law, ethics, and public health. The …

The Conscience Of A Prosecutor, David Luban

Georgetown Law Faculty Publications and Other Works

This essay, a version of the 2010 Tabor Lecture at Valparaiso Law School, examines issues about the role of a prosecutor in the adversary system through the lens of the following question: Should a prosecutor throw a case to avoid keeping men who he thinks are innocent in prison? This issue came to prominence in 2008, when Daniel Bibb, a New York City prosecutor, told newspaper reporters that he had done so in connection with a 1991 murder conviction that he had been assigned to reinvestigate after new evidence emerged that the wrong men had been convicted and were serving …

The Rule Of Law And Human Dignity: Reexamining Fuller’S Canons, David Luban

Georgetown Law Faculty Publications and Other Works

Lon Fuller offered an analysis of the rule of law in the form of eight ‘canons’ of lawmaking. He argued (1) that these canons constitute a ‘procedural natural law’, as distinct from traditional ‘substantive’ natural law; but also (2) that lawmaking conforming to the canons will enhance human dignity—a ‘substantive’ result. This paper argues the following points: first, that Fuller mischaracterized his eight canons, which are substantive rather than procedural; second, that there is an important sense in which they enhance human dignity; third, that they fail to enhance human dignity to the fullest extent because they understand it in …

Foreword: On Publishing Anonymously, Anthony C. Infanti

Articles

In this foreword to the fall 2010 issue of the Pittsburgh Tax Review, I explain the troubling set of circumstances that led to our decision to publish one of the articles anonymously. All of the articles in this issue share a focus on suggestions for state and local tax reform in Pennsylvania. The circumstances surrounding the decision to publish this one article anonymously raise a host of questions regarding the extent to which tax professionals are free to make suggestions for tax reform without being subject to employer censorship.

Role Differentiation And Lawyer's Ethics: A Critique Of Some Academic Perspectives, William H. Simon

Faculty Scholarship

Much recent academic discussion exaggerates the distance between plausible legal ethics and ordinary morality. This essay criticizes three prominent strands of discussion: one drawing on the moral philosophy of personal virtue, one drawing on legal philosophy, and a third drawing on utilitarianism of the law-and-economics variety. The essay uses as a central reference point the "Mistake-of-Law" scenario in which a lawyer must decide whether to rescue an opposing party from the unjust consequences of his own lawyer's error I argue that academic efforts to shore up the professional inclination against rescue are not plausible. I conclude by recommending an older …

No Protectable Property Interest In Making Land Use Decisions And Other Ethics In Land Use Issues 2009-2010, Patricia E. Salkin

Scholarly Works

This annual review of reported decisions and opinions focused on ethical considerations in land use planning and decision-making, continues to highlight the hotly litigated issues surrounding conflicts of interest of various players in the land use game.

Relationships, The Rules Of Professional Conduct And Land Use: Ethical Quagmires For Land Use Attorneys, Patricia E. Salkin

Scholarly Works

This article begins to fill the void by introducing the application of the various Rules of Professional Conduct, as adopted by the specific opining jurisdiction, through a review of the relevant reported opinions of the various committees and sometimes courts, in the land use context. Part I discusses the challenges that arise for lawyers vis-à-vis their clients in the land use context. This is followed by a discussion in Part II of the ethics and professionalism issues that confront lawyers who serve on local boards.

What Does It Mean To Do The Right Thing?, Ran Kuttner

Nevada Law Journal

This Article will explore how the practice of mindfulness and the cultivation of wisdom as understood in the Buddhist philosophy can help develop a mindset that will assist lawyers and conflict resolution specialists to make conscious ethical decisions and to do the “right thing” in different situations. It will draw a distinction between the two central terms, “mindfulness” and “wisdom,” clarify the philosophical underpinnings of “wisdom,” introduce foundational concepts in Buddhist philosophy, and suggest that in order to cultivate the aforementioned mindset, it is important to go beyond “mindfulness” and meet the challenges that the cultivation of “wisdom” pose. Part …

Lawyers In Character And Lawyers In Role, Katherine R. Kruse

Nevada Law Journal

This essay explores the possibilities that Leonard Riskin's call for the development of the trait of mindfulness offers for the discussion of lawyers' roles and lawyers' characters in legal ethics. First, the article explains three ways that the problems associated with legal professionalism have been framed within legal ethics, and critique the underlying assumptions that animate the dominant framing of the problems of professionalism in legal ethics. Next, it expounds the work of the two most prominent legal ethicists who have proposed the development of distinctively lawyerly character traits: Anthony Kronman's call for the revival of a “lawyer-statesman” ideal in …

Panelist, Developments In Criminal Procedure, R. Michael Cassidy

R. Michael Cassidy

No abstract provided.

The Financial Action Task Force Guidance For Legal Professionals: Missed Opportunities To Level The Playing Field, Louise Hill

Louise L Hill

No abstract provided.