Legal Ethics and Professional Responsibility Commons^™

Whom Should A Catholic University Honor?: "Speaking" With Integrity, Richard W. Garnett

Journal Articles

It has been more than two years since the announcement that our then-recently-elected President, Barack Obama, would be the featured speaker—and would receive an honorary degree—at the University of Notre Dame's graduation ceremony. No footnotes or citations are necessary for the report that the University's decision was controversial or the observation that the choice was both criticized and celebrated by students, faculty, alumni, political commentators, lay Catholics, and Church leaders.

In a USA Today opinion piece published a few days before the graduation ceremony, I suggested that the "angst at Notre Dame" was "not about what should be said at …

Deferring Ineffectiveness Claims To Collateral Review: Ensuring Equal Access And A Right To Appointed Counsel, Thomas M. Place

Faculty Scholarship

The article addresses a problem in criminal procedure that leaves an increasingly large number of defendants without a remedy to protect their right to effective assistance of counsel at trial and on direct appeal. The problem stems from the decision of states to move ineffectiveness claims from direct appeal to the post-conviction process and the fact that over half the states limit access to post-conviction remedies to defendants who are in custody. If the defendant’s prison sentence is completed during the period direct appeal is pending, or, in some jurisdictions, before the collateral review process is completed, the defendant is …

Not-So-Secret Ethics Committee Business, Kim Gifkins

ECU Research Week

Discover how ethics applications are reviewed.

Capteton V. A.T. Massey Coal Co.: The Texas Implications., Catherine Stone, Wendy Martinez

St. Mary's Law Journal

In Caperton v. A.T. Massey Coal Co., the United States Supreme Court addressed whether the Due Process Clause of the United States Constitution was violated by the denial of a motion to recuse. The motion sought to recuse a Supreme Court of Appeals Justice from West Virginia. The justice received an extraordinary campaign contribution from the chief officer of a corporate party to a case pending before the court. Several Texas courts addressed whether recusal was necessary based on campaign contributions prior to the decision in Caperton. Texas courts have universally held that recusal was not required. The United States …

Liberty Lost: The Moral Case For Marijuana Law Reform, Eva Nilsen

Faculty Scholarship

Marijuana policy analyses typically focus on the relative costs and benefits of present policy and its feasible alternatives. This Essay addresses a prior, threshold issue: whether marijuana criminal laws abridge fundamental individual rights, and if so, whether there are grounds that justify doing so. Over 700, 000 people are arrested annually for simple marijuana possession, a small but significant proportion of the 100 million Americans who have committed the same crime. In this Essay, we present a civil libertarian case for repealing marijuana possession laws. We put forward two arguments corresponding to the two distinct liberty concerns implicated by laws …

(Re) Constructing Judicial Ethics In Canada, Richard Devlin Frsc

Articles, Book Chapters, & Popular Press

Any discussion of judicial ethics and accountability -- whether it is at the state, national, or international level-inevitably requires engagement with two key ideals: impartiality and independence. Ideals are important because they can provide a trajectory for human action. But ideals can also be a problem because their generality and abstraction can cause one to prevaricate -- or even pontificate -- when it comes to the immediate and the pragmatic Indeed, there are times when ideals such as impartiality and independence can become false gods insofar as they promise salvation but ultimately, deliver little. Consequently, when one is asked to …

'...And The Learners Shall Inherit The Earth': Continuing Professional Development, Life Long Learning And Legal Ethics Education, Richard Devlin, Jocelyn Downie

Articles, Book Chapters, & Popular Press

After many years of debate and resistance the Canadian legal profession is finally accepting that compulsory professional development is a necessity. We argue that as the legal profession begins to design and deliver these programmes it should take into consideration the insights of the educational literature on lifelong learning. By way of a concrete example we explore the ways in which lifelong learning theory can inform the design and delivery of legal ethics education.

Watch Your Language: A Review Of The Use Of Stigmatizing Language By Canadian Judges, Jocelyn Downie, Michelle Black

Articles, Book Chapters, & Popular Press

Despite ongoing advances in understanding the causes and prevalence of mental health issues, stigmatizing language is still often directed at people who have mental illness. Such language is regularly used by parties, such as the media, who have great influence on public opinion and attitudes. Since the decisions from Canadian courtrooms can also have a strong impact on societal views, we asked whether judges use stigmatizing language in their decisions. To answer this question, we conducted a qualitative study by searching through modern Canadian case law using search terms that were indicative of stigmatizing language. We found that, although judges …

Dr. Cézanne And The Art Of Re(Peat)Search: Competing Interests And Obligations In Clinical Research, Robyn Bluhm, Jocelyn Downie, Jeff Nisker

Articles, Book Chapters, & Popular Press

Clinician researchers have a number of roles, each of which carries specific obligations. There are times when these obligations may be in competition (up to and including conflict) with each other. Using a narrative case study that describes a group of colleagues discussing their clinical department's participation in an industry-sponsored research protocol, we illustrate a number of the obligations faced by clinician researchers, and discuss how competing interests and obligations can lead to ethical problems. The case study is followed by a discussion of the effect of university–industry relations on competing interests and obligations in both clinical research and the …

Canadian Parliament Must Act On Assisted Human Reproduction, Jocelyn Downie

Articles, Book Chapters, & Popular Press

In the past three months, three members of the Board of Directors of Assisted Human Reproduction Canada (AHRC) have resigned. Their resignation letters include the following statements: '[that following requests for information about the Agency's spending and budget] there was much reluctance and procrastination in providing information, and that when the information was provided, there were inconsistencies in what I received and what was originally presented. This raises concerns in my mind about the prudence and diligence in managing public funds'; 'I have encountered difficulties as a board member in receiving satisfactory replies to concerns and questions I have raised …

Ghostwriting: Filling In The Gaps Of Pro Se Prisoners' Access To The Courts, Ira P. Robbins

Scholarly Articles in Law Reviews & Journals

Compared with other litigants, pro se prisoners are at an inherent disadvan-tage when they try to vindicate their rights. They lack many of the resources enjoyed by non-prisoner litigants. They have limited finances and limited access to legal-research materials. Even if they had such access, their illiteracy would lessen its effectiveness. Moreover, many attorneys are unwilling or unable to undertake full representation of prisoner litigants. As a result, pro se prisoners struggle to navigate the complex legal system, often losing their cases on procedural grounds before ever reaching a decision on the merits. This Article argues that, in order to …

The Torture Lawyers, Jens David Ohlin

Cornell Law Faculty Publications

One of the longest shadows cast by the Bush Administration’s War on Terror involves the fate of the torture lawyers who authored or signed memoranda regarding torture or enhanced interrogation techniques against detainees. Should they face professional sanction or even prosecution for their involvement? The following Article suggests that their fate implicates some of the deepest questions of criminal law theory and that resolution of the debate requires a fundamental reorientation of the most important areas of justifications and excuses. First, the debate about torture has been overly focused on justifications for torture. This can be explained in part by …

Constructing Systemic Safeguards Against Informant Perjury, Peter A. Joy

Scholarship@WashULaw

Reliance on an informant's testimony as the primary basis for charging and convicting the accused is fraught with problems. While the hypothetical explicitly addresses the ethical dilemmas defense counsel faces when her client is trading false testimony in exchange for a reduced charge and shorter sentence, the hypothetical also implicitly illustrates the inadequacies of our criminal justice system's current handling of testimony from cooperating witnesses.

The focus on the ethical, and perhaps moral, obligations of Lawyer representing a potentially perjurious Client begs larger questions. Are there safeguards the prosecutor's office could employ to ensure that the trial prosecutor, who is …

A 2010 Update: What Every Entertainment Lawyer Needs To Know - How To Avoid Being The Target Of A Legal Malpractice Claim Or Disciplinary Action, John P. Sahl

Akron Law Faculty Publications

There is significant risk today that lawyers will become the target of a disciplinary or legal malpractice action, especially given the complexity of the law and advances in technology that reduce the amount of time that lawyers have to reflect about client matters. This risk is heightened by the increased competition in the bar to deliver legal services in a cost-effective manner, the sophistication of clients who expect competent, efficient and reasonably priced services, and the litigious nature of consumers. The risk is further exacerbated by the ever-changing methods and rules for electronic communication and the storage of information. The …

Foreword: The New Era- Quo Vadis?, John Sahl

Akron Law Faculty Publications

The Inaugural MBI Symposium’s twenty-six participants highlight many important developments and challenges caused by MJP and new technologies. Their assessments and suggestions provide a helpful roadmap for lawyers and regulators to negotiate the increasingly complex, fast-paced, and ethically risky landscape for delivering legal services. Several panelists suggested regulatory reforms that range from the creation of a regulatory framework for lawyers engaged in crossborder practice to the creation of standards for the supervision of offshore outsourced legal services268 and the mining of metadata. Some of the panelists’ suggestions and reforms are especially important given the “high [financial] stakes” involved in the …

A New Era – Quo Vadis? Symposium Introduction: Lawyers Beyond Borders And Practicing Law In The Electronic Age, John P. Sahl

Akron Law Faculty Publications

This symposium introduction explores the evolving landscape of legal practice in an increasingly globalized and digitized world. It highlights the challenges and opportunities posed by cross-border legal services, the rise of virtual law offices, and the transformation of attorney-client relationships in the electronic age. The article sets the stage for deeper discussions on jurisdictional boundaries, unauthorized practice of law (UPL), data security, and the ethical responsibilities of lawyers operating in transnational and virtual contexts. It also examines how traditional regulatory frameworks are adapting—or failing to adapt—to the realities of borderless legal practice. By framing the legal profession's current trajectory, the …

Impartiality: Balancing Personal And Professional Integrity In Judicial Decisionmaking, Sarah M. R. Cravens

Akron Law Faculty Publications

No abstract provided.

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 …

Collaborative Lawyers' Duties To Screen The Appropriateness Of Collaborative Law And Obtain Clients' Informed Consent To Use Collaborative Law, John M. Lande, Forrest Steven Mosten

Faculty Publications

Collaborative Law (CL) is an innovative dispute resolution process that offers significant benefits but also poses significant non-obvious risks. This Article provides a systematic analysis of these possible risks as identified in books written by CL experts, CL practice group websites, social science research, and bar association ethics opinions. In CL, the lawyers and clients sign a "participation agreement" promising to use an interest-based approach to negotiation and fully disclose all relevant information. A key element of CL is the "disqualification agreement" signed by parties (and sometimes by attorneys) which provides that both CL lawyers would be disqualified from representing …

The Power To End War: The Extent And Limits Of Congressional Power., Adam Heder

St. Mary's Law Journal

Congress has several options in limiting the execution of war, however, Congress has no implied constitutional authority to terminate a war. Congress may limit the scope at the outset of the war, dissolve the army, or use its appropriation power. Congress may also impeach the President. Domestic statutes, the Court’s strong protection of essential liberties, and the democratic process further check the President’s power. Short of these, however, neither the Constitution nor subsequent case law gives Congress any definitive power to end or effectively limit the President’s ability to conduct a war. Congress gets its “bite at the apple” at …