State and Local Government Law Commons^™

Intra Law Firm Communications Regarding Questionable Attorney Conduct., Evan King, Jeffrey A. Parness

St. Mary's Journal on Legal Malpractice & Ethics

When questions are raised regarding a law firm attorney's representation of a firm client, the questioned attorney often wishes to seek legal counsel. A conferral will often benefit the attorney, the firm, and the client. Conferences regarding questioned conduct should be encouraged, not discouraged. To encourage these beneficial conferrals, a broad attorney-client communication privilege and a broad work-product protection (or privilege) should be available. Availability should not be dependent upon whether in-house, outside, or other legal counsel is employed. While earlier federal precedents were split regarding the availability of the attorney-client communication privilege in the in-house counsel setting, increasingly therein …

The Agony Of Modern Legal Ethics, 1970-1985., Michael Ariens

St. Mary's Journal on Legal Malpractice & Ethics

When the American Bar Association (ABA) adopted its Code of Professional Responsibility at its annual meeting in August 1969, the American legal profession was a publicly respected and economically vibrant body. Lawyers, though always more feared than loved, became increasingly important in post-World War II America. The demand for their services exploded for a quarter-century, and lawyers assumed an increased role in the economic and political life of the United States. During the 1950s and early 1960s, the Cold War led American lawyers and other public figures to re-emphasize the rule of law as defining the difference between the United …

Avoid Being A Defendant: Estate Planning Malpractice And Ethical Concerns., Gerry W. Beyer

St. Mary's Journal on Legal Malpractice & Ethics

An estate planner may become a defendant in a case involving an estate he or she planned in two main ways. First, the attorney may have performed his or her services in a negligent manner potentially creating exposure to malpractice liability. Second, the attorney's conduct may have lapsed below ethically acceptable standards. This Article reviews the exposure an estate planner may have to malpractice liability with emphasis on Texas law and then focuses the reader's attention on ethical issues that may arise while preparing or executing the plan. The author hopes that by pointing out potentially troublesome areas, the reader …

Characterizing Ghostwriting., Debra Lyn Bassett

St. Mary's Journal on Legal Malpractice & Ethics

It is well known that legal services are costly and that existing pro bono services are inadequate to help every individual who would benefit from legal assistance. Compounding this unmet need are various restrictions on the types of clients and types of cases that qualify for pro bono services. For example, Legal Services Corporation lawyers may not represent undocumented individuals, and may not undertake a representation in an abortion, desegregation, or assisted suicide matter. One attempt to mitigate this unmet need is ghostwriting. Analogous to presidential speechwriting, ghostwriting in the legal context occurs when a lawyer drafts a pleading or …

Controversial Defenses To Legal Malpractice Claims: Are Attorney-Experts Being Asked To Be Advocates?, David S. Caudill

St. Mary's Journal on Legal Malpractice & Ethics

Attorney-experts in legal malpractice litigation are like many other experts. Although easily distinguishable from experts offering science based testimony, attorney expertise is similar to that of witnesses offering experience-based testimony, and very much like the expertise of a physician in a medical malpractice case. An attorney-expert is, however, somewhat unique among experts in terms of the type of expertise offered, the inherent risk that the expert's testimony will invade the province of the judge or jury, and, I believe, the risk of over-testifying. First, there is a problem of defining the attorney-expert's "expertise" to ensure that the expert is not …

A Professional (Lack Of) Courtesy: The Emergence Of Expert Testimony In Legal And Medical Malpractice Cases., Jeffrey I.H. Soffer

St. Mary's Journal on Legal Malpractice & Ethics

This Article investigates the role of expert testimony in legal malpractice and medical malpractice cases; analyzing similarities and differences between the two and the evolution of case law in this context. The Article also examines numerous challenges potential expert witnesses face, including harsh backlash from their colleagues and repercussions from their professional organizations. Finally, the Article discusses the future of the legal malpractice and medical malpractice landscape as it pertains to expert testimony and what we should look for moving forward.

Is My Case Mandamusable: A Guide To The Current State Of Texas Mandamus Law., Marialyn Barnard, Lorien Whyte, Emmanuel Garcia

St. Mary's Law Journal

It is important for all Texas lawyers to be knowledgeable about mandamus relief. Unfortunately, there is no bright line rule in terms of mandamus relief. The general rule for when mandamus relief may be granted is when the trial court clearly abused its discretion, and there is not an adequate remedy available from a court of appeals. A clear of abuse of discretion is determined if no other trial court would have come to the same conclusion. In deciding if mandamus relief is proper, appellate courts apply a balancing test. The appellate court considers several factors including: preserving relator’s substantive …

The Computer Fraud And Abuse Act: An Attractive But Risky Alternative To Texas Trade Secret Law., Paul Hanna, Matthew Leal

St. Mary's Law Journal

Abstract Forthcoming.

Mandamus Review Of The Granting Of The Motion For New Trial: Lost In The Thicket., Richard E. Flint

St. Mary's Law Journal

A trial court’s broad discretion in granting a new trial has been one of the mainstays of Texas jurisprudence since early statehood. Historically, this discretion was not subject to review through the ordinary appellate processes. This principle remains inviolate today, as the granting of a new trial is an interlocutory order from which the appellate courts of Texas do not have jurisdiction. Furthermore, the use of an original mandamus proceeding to compel a trial court to set aside the granting of a new trial has had only limited application. However, in response to the case of In re Columbia Medical …

A Guide To Properly Using And Responding To Requests For Admission Under The Texas Discovery Rules., Robert K. Wise, Katherine Hendler

St. Mary's Law Journal

This article’s purpose is to provide a guide for properly using and responding to requests for admission under the Texas discovery rules. Requests for admission are an extremely effective discovery tool when used and responded to properly. Their use can save litigants considerable time and expense by eliminating and narrowing the issues involved in the cause of action. Often misunderstood, requests for admission are perhaps the least used of the major discovery devices available to litigants. Even though requests for admission have the potential to eliminate unnecessary proof at trial, streamline discovery and motion practice, and reduce pretrial and trial …

A Statute Overtaken By Time: The Need To Reinterpret Federal Rule Of Evidence 803(8)(A)(Iii) Governing The Admissibility Of Expert Opinions In Government Investigative Reports., Edward J. Imwinkelried

St. Mary's Law Journal

Abstract Forthcoming.

The Accommodation Doctrine Revisited: Implications In Law And In Policy., Courtney R. Potter

St. Mary's Law Journal

Abstract Forthcoming.

There Oughta Be A Law—A Model Law, Mary Whisner

Librarians' Articles

Uniform and model laws are frequently proposed to standardize “what the law is or should be” for specific jurisdictions. These model acts can come from national or international drafting organizations, such as the Uniform Law Commission, or from interest groups or associations that want to promote specific policies. Ms. Whisner provides an overview of the various types of model laws that researchers should know about.

Post-Racial Proxy Battles Over Immigration, Mary D. Fan

Chapters in Books

Amid economic and political turmoil, anti-immigrant legislation has flared again among a handful of fiercely determined states. To justify the intrusion into national immigration enforcement, the dissident states invoke imagery of invading hordes of “illegals”—though the unauthorized population actually fell by nearly two-thirds, decreasing by about a million people, between 2007 and 2009 as the recession reduced the lure of jobs.

Arizona’s Senate Bill 1070—recently invalidated in part by the U.S. Supreme Court in Arizona v. United States—led the charge. By preelection-year summer 2011, several states enacted laws patterned after Arizona’s controversial Senate Bill 1070, including Alabama’s even more aggressive …

Renewed Commitment: The Latest Chapter In Reforming Virginia's Mental Health System, The Honorable Jennifer L. Mcclellan

Richmond Public Interest Law Review

In the wake of the highly publicized Virginia Tech tragedy, the 2008 General Assembly Session adopted mental health reforms that focused on the provision of emergency services during the detention and commitment process, and an increase in funding to implement these reforms and strengthen emergency services. Despite the reforms, the issue of inadequate capacity to meet the increasing demand for mental health services remains in a number of key areas, including emergency services and a decline in in-patient psychiatric bed capacity while population growth continues.

The Judiciary In Virginia: Changes And Challenges In Virginia: One Trial Judge's Perspective, Thoma D. Horne Retired Judge

Richmond Journal of Law and the Public Interest

With the convening of the 2014 Virginia General Assembly, members of the Senate and House received the anticipated 2013 Judicial Workload Assessment Report-a weighted case load study produced by the National Center for State Courts and commissioned by the legislature during its 2012 session. The purpose of the study was to help guide both the future selection of judges and the allocation of the political boundaries to be served by those judges. The results of the weighted caseload study as contained in the 2013 Report would validate many of those concerns expressed earlier by the 2011 Judicial Boundary Realignment Committee …

An Analysis Of The Political And Legal Debates Concerning Medicaid Expansion In Virginia, Rick Mayes Ph.D, Benjamin Paul

Richmond Journal of Law and the Public Interest

The Supreme Court's historic June 2012 ruling regarding the Affordable Care Act (ACA) in National Federation of Independent Business v. Sebelius set the stage for a massive federalism battle over Medicaid expansion in the United States. The original language of the Act was intended to nationalize Medicaid by having every state expand their program's eligibility to all individuals up to 138% of the federal poverty level. This would have significantly reshaped Medicaid, a joint federal-state health insurance program, into a universal entitlement for all low-income citizens. Currently, Medicaid eligibility varies dramatically from state to state. The Court held that the …

Veteran's Law Symposium: Keynote Address Delivered November 8, 2013, Tim Kaine

Richmond Journal of Law and the Public Interest

d it is good to be back here Friday to talk to this Veterans Law Symposium. The initial symposium on veterans law here at the law school and what an appropriate thing to do on an appropriate weekend as we get ready to celebrate Veteran's Day and I was honored to be asked to come and offer some thoughts. I want to talk about, just sort of current issues we are really grappling with, that are legal issues, in Congress, that might affect the practice that you would hope to do, that certainly affect the lives of our veterans and …

Merging And Dissolving Special Districts, Conor Clarke

Scholarship@WashULaw

Special district governments exist in every state, providing services ranging from protection against fire to protection against fire ants. These governments are easy to form, but often they are difficult to dissolve or consolidate. Nevertheless, in many states, the number of special district governments is declining. This Comment draws on statistical analyses and interviews with government officials to explain the cause of this decline. It also discusses how existing legal frameworks may be revised to facilitate the efficient consolidation and dissolution of special district governments.

Pentagon Preemption: The 5-Sided Loss Of Energy And Power, Steven Ferrey

Suffolk University Law School Faculty Works

States have attempted recently to regulate the unique form of electric energy as to its:

· Place – forcing power generation to locate in the state or leave the state

· Price – Providing a higher price for certain power generated in the state or requiring utilities and their ratepayers to pay above market prices for certain power

· Regulatory credit value -- Providing greater credits for in-state power or fuel

Some federal courts have struck state regulation of energy and climate change-related renewable technologies as constituting a violation preempted under the Supremacy Clause of the Constitution in five dimensions. …