Legal Ethics and Professional Responsibility Commons^™

The Other Bar Hurdle: An Examination Of The Character And Fitness Requirement For Bar Admission, David L. Hudson Jr., Andrea Gemignani

Law Faculty Scholarship

In The Other Bar Hurdle, published in the Mitchell Hamline Law Review, the authors examine the character and fitness requirement as a critical yet under-scrutinized component of attorney licensing. The Article surveys the historical foundations, purposes, and contemporary administration of character and fitness investigations, highlighting their dual aims of protecting the public and safeguarding the integrity of the courts. It then synthesizes extensive scholarly criticism, focusing on concerns about discriminatory origins, lack of transparency, inconsistent application, deterrent effects on prospective applicants, and the disproportionate impact on individuals with criminal records, financial hardship, or mental health histories. While acknowledging …

Are High Levels Of Educator Bias Associated With The Disproportionate Discipline Of Black Students?, Melissa Ann Ramos

UNF Graduate Theses and Dissertations

Data on school discipline inequities have shown disproportionate numbers of Black students suspended and expelled compared to their non-Black counterparts. Despite the implementation of evidence-based solutions such as positive behavior supports and intervention, educator professional development, and restorative practices aimed at closing the racial discipline gap, little to no change has occurred. Critical Race Theory is used as a lens for viewing racial hierarchies as a socially constructed tool to oppress people of color. This oppression can be seen in various aspects of society and in education, especially in school discipline. It is fueled by biases, both implicit and explicit. …

Vulnerabilities In Discovery Tech, Neel Guha, Peter Henderson, Diego A. Zambrano

Faculty Scholarship

Recent technological advances are changing the litigation landscape, especially in the discovery context. For nearly two decades, technologies have reinvented document searches in complex litigation, normalizing the use of machine learning algorithms under the umbrella of “Technology-Assisted Review” (“TAR”). The latest technological developments are placing discovery beyond attorney understanding and firmly in the realm of computer science and engineering. As lawyers struggle to keep up, a creeping sense of anxiety is spreading in the legal profession about a lack of transparency and the potential for discovery abuse. Judges, attorneys, bar associations, and scholars warn that lawyers need to closely supervise …

Comment: Without Effective Lawyers, Do More Determinate Legal Standards Really Matter?, Vivek S. Sankaran

Articles

In Confronting Indeterminacy and Bias in Child Protection Law, Professor Josh Gupta-Kagan wisely proposes that the child protection system needs more precise legal standards, not just to limit unnecessary state intrusion in the lives of families, but to also define the scope of that intrusion if it must occur. But as I read his piece, a question repeatedly ran through my mind - will the changes he proposes have any impact if parents in the child protection system continue to have ineffective lawyers representing them?

Professionalism In Tribal Jurisdictions, Matthew L.M. Fletcher

Articles

American Indian law is an important area of law. There are 12 federally recognized Indian tribes in the state of Michigan.1 Indian tribes throughout the United States do business in Michigan. Indian tribal governments and corporations employ hundreds of thousands of non-Indians and received billions in federal pandemic relief. Indian gaming generated nearly $40 billion in revenues nationally last year. Still, many lawyers ignore the field or claim ignorance about the basic precepts of federal Indian law.

This article will canvass several themes of professionalism in tribal practice, drawing from this author’s tribal law experience over the last few decades. …

Lawyering Paradoxes: Making Meaning Of The Contradictions, Susan P. Sturm

Faculty Scholarship

Effective lawyering requires the ability to manage contradictory yet interdependent practices. In their role as traditionally understood, lawyers must fight, judge, debate, minimize risk, and advance clients’ interests. Yet increasingly, lawyers must ALSO collaborate, build trust, innovate, enable effective risk-taking, and hold clients accountable for adhering to societal values. Law students and lawyers alike struggle, often unproductively, to reconcile these tensions. Law schools often address them as a dilemma requiring a choice or overlook the contradictions that interfere with their integration.

This Article argues instead that these seemingly contradictory practices can be brought together through the theory and action of …

Bias And Biometrics: Regulating Corporate Responsibility And New Technologies To Protect Rights, Erika George

Faculty Scholarship

A growing body of literature has documented the ways in which algorithms and new technology are being deployed in ways that discriminate and violate human rights. The regulatory environment is still evolving, but not as rapidly as new technologies are being introduced by private corporations and implemented in public settings. Governments are using AI in immigration and asylum determinations and law enforcement, arenas where racism and xenophobia can often arise. In the aftermath of the racial justice uprisings following the murder of George Floyd, some technology firms pledged to reconsider providing surveillance technology to police without protections in place. This …

Ethical Duties Of Class Counsel Also Representing Class Representatives, Nancy J. Moore

Faculty Scholarship

In their excellent article entitled May Class Counsel Also Represent Lead Plaintiffs?,¹ Professors Bruce Green and Andrew Kent explore a particular aspect of two broader questions I have also addressed: (1) who should regulate class action lawyers;² and (2) who will regulate class action lawyers?³ I, too, focused on lawyers' conflicts of interest; however, Professors Green and Kent focus even more specifically on conflicts arising from class counsel's simultaneous representation of both the class and individual clients who are serving or will serve as class representatives. Their concern is with three particular scenarios in which the class …

Noise Pollution, Patrick Barry

Reviews

The authors of Noise: A Flaw in Human Judgment are a trio of intellectual heavy hitters: Nobel Prize-winner Daniel Kahneman, constitutional law scholar Cass Sunstein, and former McKinsey consultant (and current management professor) Olivier Sibony. As prolific as they are prominent, the three of them have collectively produced over fifty books and hundreds of articles, including some of the most cited research in social science. If academic publishing ever becomes an Olympic sport, they’ll be prime medal contenders, particularly if they get to compete as a team or on a relay. Their combined coverage of law, economics, psychology, medicine, education, …

The Entity Attorney-Client Privilege Meets The Twenty-First Century: Rethinking Functional Equivalent Analysis In The Time Of A Nonemployee Workforce., Grace M. Giesel

Faculty and Staff Scholarship

Courts have struggled with whether an entity’s attorney-client privilege can protect communications between the entity’s lawyer and a nonemployee who has information the entity’s lawyer needs to best advise the entity. The nonemployee might be a former employee. But increasingly in recent times, the nonemployee is an individual who was never an entity employee. Corporations and other entities have incorporated nonemployees in their economic enterprises in all sorts of roles—roles employees may have held in the past. Many courts have accepted that the privilege can apply to communications involving former employees.

When faced with nonemployees who are not former employees, …

Moby-Dick As Corporate Catastrophe: Law, Ethics, And Redemption, David Yosifon

University of Cincinnati Law Review

Herman Melville’s Moby-Dick serves here as a vehicle through which to interrogate core features of American corporate law and excavate some of the deeper lessons about the human soul that lurk behind the pasteboard mask of the law’s black letter. The inquiry yields an illuminating vantage on the ethical consequences of corporate capital structure, the law of corporate purpose, the meaning of voluntarism, the ethical stakes of corporate fiduciary obligations, and the role of lawyers in preventing or facilitating corporate catastrophe. No prior familiarity with the novel or corporate law is required.

Comment On Proposed Regulation: Prudence And Loyalty In Selecting Plan Investments And Exercising Shareholder Rights, David H. Webber

Shorter Faculty Works

In my view, while it is a significant improvement over its predecessor, the proposed rule’s persistent relegation of job creation/preservation to the status of mere “collateral benefit” is a mistake and undermines ERISA’s duty of loyalty. In reality, job creation and preservation are inextricably linked to fund financial health. Relegating that fact to a mere collateral benefit means trustees fail to consider the effect on a pension of investing in projects that eliminate the jobs of the fund’s own participants, or ignore the benefit of creating new jobs and thereby new pension contributors. This runs counter to President Biden’s executive …

Trusts From A To Z: Legal Ethics, Thomas Simmons

Faculty Publications

No abstract provided.

The Future Harm Exception: Coercive Control As Serious Psychological Harm And The Challenge For Lawyers’ Ethics, Deanne Sowter

Dalhousie Law Journal

Can a lawyer use the future harm exception to prevent her client from coercively controlling his former spouse? Lawyers are required to keep their clients’ secrets unless an exception applies. One of those exceptions is where there is a clear and imminent risk of serious bodily harm or death to an identifiable group or person. The exception provides that serious psychological harm constitutes serious bodily harm, but there is very little guidance as to what type of threat might meet the test. Coercive control is a type of family violence whereby an abusive spouse will use a pattern of tactics …

Punishment Without Trial: Why Plea Bargaining Is A Bad Deal, Jacob Burns Center For Ethics In The Practice Of Law

2021 Event Invitations

When Americans think of the criminal justice system, they picture a trial. The right to a trial by jury is supposed to undergird our entire justice system – but that bedrock constitutional right has all but disappeared thanks to plea bargaining. In 2018, more than 97 percent of defendants pleaded guilty.

In Punishment Without Trial: Why Plea Bargaining Is A Bad Deal, Carissa Byrne Hessick makes the case against plea bargaining and illustrates why we need to fix it if we ever hope to achieve lasting criminal justice reform.

Join the Jacob Burns Center for Ethics in the Practice …

Criticizing Judges: A Lawyer's Professional Responsibility, Lonnie T. Brown

Georgia Law Review

Lawyers, as officers of the court, are expected to act with deference and respect toward judges. Speaking sharply to or publicly criticizing members of the bench is frowned upon and not infrequently met with punitive responses. The judiciary, however, is not above reproach. Judges are fallible and may possess personal biases, tainting self-interest, or even prejudice. As such, at times, they must disqualify themselves if their ability to dispense justice fairly and impartially can reasonably be questioned. Indeed, the very nature of a judge’s role requires avoidance of even the “appearance of impropriety.” When judges fail to adhere to this …

Legal Ethics, Patrick Emery Longan

Mercer Law Review

This Survey covers the period from June 1, 2020, to May 31, 2021. The Article discusses developments concerning attorney discipline, bar admission and reinstatement, malpractice and other civil claims, ineffective assistance of counsel, disqualification of counsel and conflicts of interest, judicial conduct and recusal, attorney’s fees and liens, contempt, formal advisory opinions, amendments to the Georgia Rules of Professional Conduct, and one miscellaneous matter.

The Risk Of Zealous Advocacy: Litigators Receiving Anonymously Disclosed Documents And The Notification Requirement, Rebecca J. Spendley

Fordham Law Review

The American Bar Association (ABA) created the Model Rules of Professional Conduct to provide guidance to lawyers, courts, and the entire legal profession regarding what a lawyer’s ethical duties entail. Model Rule 4.4(b) requires a lawyer to notify opposing counsel once the receiving lawyer knows, or reasonably should know, that the documents received were inadvertently sent. The ABA, however, explicitly left documents disclosed intentionally and without authorization beyond the scope of the rules, thus leaving lawyers who receive these documents with little guidance. Courts have taken varying approaches to handling documents of this type: some analogize unauthorized disclosures to inadvertent …

Who Tells Their Stories?: Examining The Role, Duties, And Ethical Constraints Of The Victim’S Attorney Under Model Rule 3.6, Ksenia Matthews

Fordham Law Review

In U.S. criminal proceedings, the prosecution typically presents the victim’s story. However, as part of the victims’ rights movement, victims are striving to make their voices heard and tell their stories in their own words. Yet, despite the growing role victims occupy in criminal proceedings and the rights afforded to victims by the Crime Victims’ Rights Act and its state counterparts, victims still remain nonparties in criminal proceedings. As victims increasingly retain private lawyers to help navigate criminal proceedings and represent their interests, it is important to understand how these lawyers fall within the traditional two-party adversary system. Limited by …

Autonomous Weapons Systems And The Procedural Accounta- Bility Gap, Afonso Seixas-Nunes

Brooklyn Journal of International Law

The development and well-established principles of Internationla Humanitarian Law have been progressively establishing limits to the means and methods of warfare. Those principles and rules are necessarily applicable to future autonomous weapon systems (AWS), but questions regarding liability for violations of IHL caused by AWS have been looming the international debate. This article has two parts. The first part aims to identify a technical dimension of AWS that has been neglected by international lawyers: States responsibility for IHL violations caused by errors in AWS’ software. This article argues that “errors” can neither be identified with “malfunctions” nor attributed to human …