Legal Ethics and Professional Responsibility Commons^™

Introduction: Disciplining Judges – Exercising Statecraft, Richard Devlin, Sheila Wildeman

Articles, Book Chapters, & Popular Press

Globally, countries are faced with a complex act of statecraft: how to design and deploy a defensible complaints and discipline regime for judges. In this collection, contributors provide critical analyses of judicial complaints and discipline systems in thirteen diverse jurisdictions, revealing that an effective and legitimate regime requires the nuanced calibration of numerous public values including independence, accountability, impartiality, fairness, reasoned justification, transparency, representation, and efficiency.

The jurisdictions examined are Australia, Canada, China, Croatia, England and Wales, India, Italy, Japan, the Netherlands, Nigeria, Poland, South Africa, and the United States. The core findings are four-fold. First, the norms and practices …

The Politics Of Regulating And Disciplining Judges In Nigeria, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

The disciplining of judges is a sensitive and complex challenge. In Nigeria, the complexity is heightened because the process is complicated by socio-political factors and public views about the motivations for disciplining some judges, including claims of political interference by the ruling government. This Chapter argues that both judicial discipline and the work of the National Judicial Council (NJC) – the body responsible for judicial regulation in Nigeria – are caught up within Nigeria’s peculiar socio-politics, a reality that a strictly legal analysis will miss. The Chapter analyzes contemporary challenges and controversies associated with the complaints and discipline procedure in …

The Premier Should Not Also Be The Attorney General: Roncarelli V Duplessis Revisited As A Cautionary Tale In Legal Ethics And Professionalism, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

From time to time, a Premier or Prime Minister appoints themself as Attorney General. In this article, I argue that this dual portfolio is inherently and incurably problematic and should be avoided and indeed prohibited. I do so from the perspective of legal ethics and professionalism. The springboard for my analysis is the conduct of Quebec Premier and Attorney General Maurice Duplessis in the classic case of Roncarelli v Duplessis. While there may well be perceived benefits that tempt Premiers to serve in the dual role, any lawyer who does so unavoidably violates his or her professional obligations. For …

The Duty Of Legislative Counsel As Guardians Of The Statute Book: Sui Generis Or A Professional Duty Of Lawyers?, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

Legislative counsel—those who draft legislation for the executive or for legislative assemblies—are largely overlooked in the Canadian legal literature and case law. One respect in which legislative counsel appear to be unique is their duty as guardians or keepers of the statute book. This article argues that this Guardian duty is best understood as a professional duty of legislative counsel as lawyers. In the same way that all lawyers have professional duties as officers of the court, though these duties are most relevant to litigators, all lawyers have professional duties as officers of the statute book, though these duties are …

The Non-Lawyer Attorney General- Problems And Solutions, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

In this article, I provide a legal and policy analysis of the non-lawyer Attorney General and recommendations for legislative change. I begin in Part 1 by setting out and assessing Askin and its uptake in the case law and literature. I demonstrate that while the decision in Askin has two major weaknesses, the reasoning is presumably applicable across the country.7 In Part 2, I examine the legal consequences of Askin and its policy or practical consequences. I argue that it threatens the government’s solicitor-client privilege and that it leaves the non-lawyer Attorney General unconstrained by the law of lawyering more …

Mental Illness And Professional Regulation: The Duty To Report A Fellow Lawyer To The Society, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

Lawyers have a largely overlooked duty to report other lawyers to the law society in a range of circumstances. This duty contemplates mental illness, explicitly or implicitly, as a reportable condition and thus engages issues of stigma and discrimination. This article analyzes this reporting duty with a focus on its implications for lawyers with disabilities. The article begins by examining the history and text of the rule and considering several legal problems it presents. It then canvasses law societies’ duties to their members with disabilities under human rights law and analyzes how the duty to report interacts with human rights …

Where Are We Going? The Past And Future Of Canadian Scholarship On Legal Ethics For Government Lawyers, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

In this essay I assess and reflect on the past and future of the Canadian literature on legal ethics and professionalism for government lawyers in order to identify strengths and weaknesses and areas for growth and to evaluate its long-term viability. I call for the existing and continuing first wave of doctrinal work to be joined by a second wave of analytical and critical work. Ultimately, I conclude that this literature is at a defining moment and that, without timely and sustained contributions by both academics and government lawyers, it risks failure as a meaningful area of study.

Dans cet …

Using Experiential Learning To Create An Inclusive Classroom, Promote Equity, And Develop Professional Identity, Tianna N. Gibbs

Scholarly Articles in Law Reviews & Journals

Legal education is changing. As law schools diversify their student bodies, they are being more intentional about the creation of an inclusive and equitable learning environment. Law schools also are engaging in curricular and pedagogical reform to better prepare students for law practice. Incorporating experiential learning into the law school curriculum has been a significant component of these reform efforts. The development of students’ professional identity also has become a focus of preparation for practice.

Covid-19 And Digital Contact Tracing: Regulating The Future Of Public Health Surveillance, Divya Ramjee, Pollyanna Sanderson, Imran Malek

Cardozo Law Review de•novo

Digital surveillance tools are at the forefront of potential public health response strategies for the COVID-19 pandemic. The United States is in desperate need of a national-level contact tracing and exposure notification strategy to supplement traditional public health response efforts. This article addresses data privacy and security concerns, as well as epidemiological considerations, when developing digital contact tracing and exposure notification tools. It is both feasible and prudent that the United States establish a federal network for public health surveillance aided by digital tools, especially considering that waves of COVID-19 are expected to continue well into 2021 and while the …

How And Why Did It Go So Wrong?: Theranos As A Legal Ethics Case Study, G. S. Hans

Vanderbilt Law School Faculty Publications

The Theranos saga encompasses many discrete areas of law. Reporting on Theranos, most notably John Carreyrou's Bad Blood, highlights the questionable ethical decisions that many of the attorneys involved made. The lessons attorneys and law students can learn from Bad Blood are highly complex. The Theranos story touches on multiple areas of professional responsibility, including competence, diligence, candor, conflicts, and liability. Thus, Theranos serves as a helpful tool to explore the limits of ethical lawyering for Professional Responsibility students. This Article discusses the author's experience with using Bad Blood as an extended case study in a new course on Legal …

Clinical Fellowships, Faculty Hiring, And Community Values, G. S. Hans

Vanderbilt Law School Faculty Publications

This Essay explores clinical hiring practices as an expression of community values. In particular, it discusses how lawyers become clinical faculty to reflect on whether and how prior clinical teaching experience should be assessed for entry-level clinical applicants in order to effectuate equity and inclusion within law schools and the clinical community. Publicly available data suggest that a majority of recent entry-level clinical faculty have prior clinical teaching experience as fellows or staff attorneys. What does this apparent hiring preference for prior teaching experience mean for the composition of the clinical community, especially with respect to equity and inclusion? As …

Ethical Duty To Investigate Your Client?, Peter A. Joy

Scholarship@WashULaw

Lawyers have been implicated in corporate scandals and other client crimes or frauds all too often, and the complicity of some lawyers is troubling both to the public and to members of the legal profession. This is especially true when the crime involved is money laundering. As a response to attorney involvement in crimes or frauds, some legal commentators have called for changes to the ethics rules to require lawyers to investigate their clients and client transactions under some circumstances rather than remaining “consciously” or “willfully” blind to what may be illegal or fraudulent conduct. The commentators argue that such …

Should We Stay Or Should We Go: Lessons From The Trump Administration, Kathleen Clark

Scholarship@WashULaw

After the 2016 election, commentators published a flurry of essays with advice on whether lawyers and federal officials should remain in government during the Trump administration. In this article, I review those essays, includ- ing Professor David Luban’s stern advice about the risk of remaining. I also discuss three key concepts from Professor Luban’s article for this symposium: desk perpetrators, desk mitigators, and operational maneuvering room, and explore how they apply to Trump administration officials who engaged in internal

resistance or principled resignation. More than one hundred federal officials

in the administration engaged in principled resignation, many acting in concert …

Guidance On Presidential Records By The National Archives And Records Administration, David S. Ferriero

Copyright, Fair Use, Scholarly Communication, etc.

How the Presidential Records Act Affects the President, Vice President, and White House Staff During the Administration

Overview

The Presidential Records Act (PRA) of 1978, as amended, 44 U.S.C. §§ 2201-2209, governs the official records of Presidents and Vice Presidents created on or received after January 20, 1981. The PRA changed the legal ownership of the official records of the President from private to public.

The PRA established a new statutory structure under which Presidents must manage their records. The Presidential Records Act:

 Defines and states public ownership of the records;

 Places the responsibility for the custody and …

Playing By The Rule: How Aba Model Rule 8.4(G) Can Regulate Jury Exclusion, Anna Offit

Faculty Publications

Discrimination during voir dire remains a critical impediment to empaneling juries that reflect the diversity of the United States. While various solutions have been proposed, scholars have largely overlooked ethics rules as an instrument for preventing discriminatory behavior during jury selection. Focusing on American Bar Association Model Rule of Professional Conduct 8.4(g), which regulates professional misconduct, this Article argues that ethics rules may, under certain conditions, deter the exclusionary practices of legal actors. Part I examines the specific history, evolution, and application of revised Model Rule 8.4(g). Part II delves into the ways that ethics rules in general, despite their …

All Rise: Suiting Up When Showing Up For The Practice Of Law In The Covid-19 Virtual Legal Environment, Marissa Moran

Publications and Research

The age-old advice: “No matter how you feel, get up, dress up, and show up for work and life!” may be worth remembering as more legal professionals participate in virtual environments due to the COVID-19 mandated court closures.

Virtual court hearings, mediations, and meetings are taking place. Attorneys and legal educators have adapted to changes in how we meet clients and students by utilizing Blackboard Collaborative, Zoom, Cisco WebEx, Microsoft Teams, Google Meet/Hangouts, and Skype. Do such changes in our ways of meeting and communicating-within the virtual environment-bring with them a corresponding change in expectations of what is appropriate attire …

The Rise Of Law And The Fall Of Circular 230: Tax Lawyer Professional Standards, 1985-2015, Michael Hatfield

Articles

This third article focuses on the two issues that dominated discussions of professional responsibility standards for tax lawyers in the 1985-2015 period: return position standards and tax shelter opinions. It opens with consideration of the ABA’s 1965 opinion providing “reasonable basis” as the standard for undisclosed return positions, and then traces the response to that opinion as the response prods the development of the 1985 replacement with its “realistic possibility of success” standard. The Article documents the extensive interaction between Congress, the Treasury Department, and the tax bar over the next 30 years during which penalties are studied and revised …

The Future Of Facts: The Politics Of Public Health And Medicine In Abortion Law, Aziza Ahmed

Faculty Scholarship

While a great deal of public scrutiny has focused on how information circulates through online outlets including Twitter and Facebook, less attention has been devoted to how more traditional institutions traffic in factual assertions for the sake of setting a particular distributional agenda into motion.[1] Of these more traditional institutions, courts play a central role in legitimating legal and factual claims in the process of applying and clarifying legal rules. In public health-related adjudication, courts play at least two important roles: first, judges and juries make decisions between competing sets of public health and medical claims and second, courts …

School “Safety” Measures Jump Constitutional Guardrails, Maryam Ahranjani

Seattle University Law Review

In the wake of George Floyd’s murder and efforts to achieve racial justice through systemic reform, this Article argues that widespread “security” measures in public schools, including embedded law enforcement officers, jump constitutional guardrails. These measures must be rethought in light of their negative impact on all children and in favor of more effective—and constitutionally compliant—alternatives to promote school safety. The Black Lives Matter, #DefundthePolice, #abolishthepolice, and #DefundSchoolPolice movements shine a timely and bright spotlight on how the prisonization of public schools leads to the mistreatment of children, particularly children with disabilities, boys, Black and brown children, and low-income children. …

The Small-Er Screen: Youtube Vlogging And The Unequipped Child Entertainment Labor Laws, Amanda G. Riggio

Seattle University Law Review

Family vloggers are among the millions of content creators on YouTube. In general, vloggers frequently upload recorded videos of their daily lives. Family vloggers are unique because they focus their content around their familial relationships and the lives of their children. One set of family vloggers, the Ace Family, has recorded their children’s lives from the day they were born and continue to upload videos of each milestone, including “Elle Cries on Her First Rollercoaster Ride” and “Elle and Alaïa Get Caught Doing What!! **Hidden Camera**.” Another vlogging couple, Cole and Savannah LaBrant, post similar content, including videos titled “Baby …