Legal Ethics and Professional Responsibility Commons^™

Something Wicked This Way Thumbs: Personal Contact Concerns Of Text-Based Attorney Marketing, Ashley M. London

Law Faculty Publications

When the American Bar Association (ABA) announced its latest revisions to Model Rules 7.1–7.5, governing attorney advertising, solicitation, and information about legal services in general, the organization may have unintentionally created a way for attorneys to hack directly into the brains of potential clients for purposes of pecuniary gain.

Brushing aside decades of precedent, the rule on Solicitation of Clients now allows real-time electronic solicitation, including text messaging and tweets. These developments beg the question of whether or not the ABA committee charged with redefining this rule actually understands the power and pervasiveness of cell phones, or how the use …

Professional Liability, Evan A. Kirkham, Hayden M. Baker, Tyler C. Wright

SMU Annual Texas Survey

No abstract provided.

Jewish Lawyers And The U.S. Legal Profession: The End Of The Affair?, Eli Wald

Touro Law Review

No abstract provided.

Ethical Blind Spots In Adoption Lawyering, Malinda L. Seymore

Faculty Scholarship

Lawyers engaged in adoption work often call it “happy law,” and consider adoption – finding a child for yearning parents, finding parents for a needy child – an unmitigated good. That attitude can mask the fact that all adoption begins with loss. One family loses a child so that another family can gain one. A lawyer’s assurance that she is engaged in positive work can lead to ethical blind spots that ignore the complexities of adoption practice. And while the touchstone of adoption is the best interests of the child, the primacy in legal ethics of the interests of the …

Folk Hero Or Legal Pariah? A Comment On The Legal Ethics Of Edgar Schmidt And Schmidt V Canada (Attorney General), Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

In Schmidt v Canada (Attorney General), government lawyer Edgar Schmidt sought a declaration that the Department of Justice and the Minister of Justice were misinterpreting legislation requiring the Minister to inform the House of Commons if government bills are inconsistent with the Canadian Charter of Rights and Freedoms. Schmidt was one of the lawyers who made recommendations under that legislation. Schmidt thus presents an unusual case study in legal ethics: what should, or can, a lawyer do when a client rejects the lawyer’s advice? What if the client is the government, and the advice is about fundamental rights? This …

@Usa Vs. @Realdonaldtrump: The Decline Of Democracy In 280 Characters Or Less, Bryn Edwards

CMC Senior Theses

From threats, to hate speech, to potential criminal statements, Donald Trump has made use of Twitter like no president or world leader before him. His presidency and communication strategy have been defined by his “tweetstorms” and a consequent slew of legal issues. The prolific rate of his tweeting has made large-scale analyses difficult as they quickly become dated.

Nevertheless, this thesis has aimed for a more holistic analysis by uniquely linking trends in his tweeting to its perceived social consequences, situating this work in a long line of analyses of presidential rhetoric and media strategies. Moreover, it assesses Trump’s use …

Ethical Testing In The Real World: Evaluating Physical Testing Of Adversarial Machine Learning, Kendra Albert, Maggie Delano, Jonathon Penney, Afsaneh Ragot, Ram Shankar Siva Kumar

Articles, Book Chapters, & Popular Press

This paper critically assesses the adequacy and representativeness of physical domain testing for various adversarial machine learning (ML) attacks against computer vision systems involving human subjects. Many papers that deploy such attacks characterize themselves as “real world.” Despite this framing, however, we found the physical or real-world testing conducted was minimal, provided few details about testing subjects and was often conducted as an afterthought or demonstration. Adversarial ML research without representative trials or testing is an ethical, scientific, and health/safety issue that can cause real harms. We introduce the problem and our methodology, and then critique the physical domain testing …

The Ethical Tax Judge, Kim Brooks

Articles, Book Chapters, & Popular Press

This chapter advances the claim that judges have an ethical obligation of competence that requires them to enhance their knowledge about language (in the context of statutory interpretation) and income tax law design and policy. It articulates some of the foundational understandings that support that competence and provides a simple hierarchy of approaches to interpreting income tax law. It concludes by contending that greater competence is not only more ethical but also advances other important societal goals fulfilled by the imposition of income tax systems.

Nil/Tu,O Child And Family Services Society V. B.C. Government And Service Employees’ Union’ And Communications, Energy And Paperworkers Union Of Canada V. Native Child And Family Services Of Toronto, Naiomi Metallic

Articles, Book Chapters, & Popular Press

In NIL/TU,O and Native Child, the Supreme Court of Canada held that unions applying for certification to represent employees of Indigenous-run child and family agencies ought to be certified under provincial labour relations legislation. The majority in both cases applied a presumptive rule that labour relations are generally provincial matters. This presumption was not displaced by the fact that both agencies were Indigenous-run organizations. The Indigenous nature of the organizations, their clientele, staff, and governance, or their own preferences for labour regimes made no difference to the Court’s analysis.

Held: Appeals Allowed.

1.

The appeals should be allowed. Treating Indigenous …

From Attorney General To Backbencher Or Opposition Legislator: The Lawyer’S Continuing Duty Of Confidentiality To The Former Client, Andrew Martin

Articles, Book Chapters, & Popular Press

This note uses a recent incident from Manitoba to reflect on the professional duty of confidentiality owed to the Crown by a former Attorney General as lawyer. The duty of confidentiality survives the lawyer-client relationship. As a fiduciary, the lawyer cannot disclose or use the client’s confidential information for her own benefit or the benefit of a third party, or against the client. These obligations constrain the former Attorney General in her conduct as an opposition legislator and suggest that she should not accept an appointment as Justice critic for her caucus. While parliamentary privilege protects the former Attorney General …

Gladue At Twenty: Gladue Principles In The Professional Discipline Of Indigenous Lawyers, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

In the wake of the Truth and Reconciliation Commission, the legal profession and its regulators have focused on the training and education of lawyers and law students, particularly in “intercultural competency,” as emphasized in Calls to Action 27 and 28.9 For example, in 2018 the Advocates’ Society, the Indigenous Bar Association, and the Law Society of Ontario jointly published a Guide for Lawyers Working with Indigenous Peoples, which observed—among other things—that “there is no such thing as a culturally neutral practice of law.” However, this training and education focus is important but incomplete: The journey toward reconciliation will also involve …

The Ethical Tax Judge, Kim Brooks

Articles, Book Chapters, & Popular Press

This chapter advances the claim that judges have an ethical obligation of competence that requires them to enhance their knowledge about language (in the context of statutory interpretation) and income tax law design and policy. It articulates some of the foundational understandings that support that competence and provides a simple hierarchy of approaches to interpreting income tax law. It concludes by contending that greater competence is not only more ethical but also advances other important societal goals fulfilled by the imposition of income tax systems.

Foreword, Syndie G. E. Molina

Journal of Race, Gender, and Ethnicity

No abstract provided.

Our Criminal Justice System Is A Bear Trap, Frederick K. Brewington

Journal of Race, Gender, and Ethnicity

No abstract provided.

Confession Obsession: How To Protect Minors In Interrogations, Cindy Chau

Journal of Race, Gender, and Ethnicity

No abstract provided.

The Future Of Pretrial Detention In A Criminal System Looking For Justice, Gabrielle Costa

Journal of Race, Gender, and Ethnicity

No abstract provided.

Remorse, Not Race: Essence Of Parole Release?, Lovashni Khalikaprasad

Journal of Race, Gender, and Ethnicity

No abstract provided.

On Emotions And The Politics Of Attention In Judicial Reasoning, Emily Kidd White

Articles & Book Chapters

Legal doctrine regularly requires judges to both understand and use emotions in different ways. This chapter explores the role of emotions in fixing and sustaining judicial attention on the impact of a law on the constitutional rights of an individual or group. That certain forms of wrong or harm, including forms of political and social exclusion, are difficult to detect in the absence of focused attention is, I think, what Elizabeth Bishop’s poem ‘Man-Moth’, excerpted here in epigraph, intends to express. This chapter explores the role of emotions in setting up the serious, sustained inquiry into the impact of a …

Covid-19 And First Nations’ Responses, Aimée Craft, Deborah Mcgregor, Jeffery G. Hewitt

Articles & Book Chapters

This chapter considers the federal government’s fettering of jurisdiction through inaction in the areas of clean water and housing. We consider a small sample of First Nations’ responses, taken on the basis of their assertions of jurisdiction and responses to the particular needs and circumstances of their communities. We conclude that First Nations are best positioned to make policy and law in response to COVID-19, and that the federal government can and must work with First Nations communities on resourcing their plans for wellness and emergency preparedness in relation to the pandemic, in accordance with a sui generis application of …

Avoiding Judicial Discipline, Veronica Root Martinez

Faculty Scholarship

Over the past several years, several high-profile complaints have been levied against Article III judges alleging improper conduct. Many of these complaints, however, were dismissed without investigation after the judge in question removed themselves from the jurisdiction of the circuit’s judicial council—oftentimes through retirement and once through elevation to the Supreme Court. When judges—the literal arbiters of justice within American society—are able to elude oversight of their own potential misconduct, it puts the legitimacy of the judiciary and the rule of law in jeopardy.

This Essay argues that it is imperative that mechanisms are adopted that will ensure investigations into …