Feedback to SSRN (Beta)
What type of feedback would you like to send?
Abstract: Prosecutorial misconduct is one of the leading causes, or contributing causes, of wrongful convictions. This paper contends that prosecutorial misconduct is not chiefly the result of isolated instances of unprincipled choices or the failure of character on the part of some prosecutors. Rather, prosecutorial misconduct is largely the result of three institutional conditions: vague ethics rules that provide ambiguous guidance to prosecutors; vast discretionary authority with little or no transparency; and inadequate remedies for prosecutor misconduct. These three conditions create perverse incentives for prosecutors to engage in, rather than refrain from, prosecutorial misconduct. In order to reduce the number of wrongful convictions, it is essential to understand the institutional conditions that facilitate prosecutorial misconduct. This paper identifies and analyzes these institutional conditions and makes modest, concrete proposals to reduce the incidence of prosecutorial misconduct. The ultimate purpose of the proposals is to prevent wrongful convictions and not to impose unnecessary obligations or unrealistic expectations on prosecutors.
ABA Model Rules, ABA Criminal Justice Standards, Criminal Justice Standards, actual innocence, ethics, ethical obligations, innocent, innocence, innocence commission, prosecutor, prosecution, prosecution function, prosecution ethics, prosecutorial misconduct, transparency, wrongful convictions
Abstract: Although clinical legal education is an established part of American legal education, few commentators have considered how the ethical issues governing lawyers' conflicts of interest and competency apply in the law school clinic context. This article fills that gap by identifying and explaining the ethical obligations law clinic students and supervising clinical faculty encounter in case and client selection due to conflict of interest and competency considerations. It analyzes various conflicts of interest due to prior, current, or future employment of law clinic students and faculty, and it explores conflicts based on the status of clinical faculty as employees of the law school and university. The article also discusses the components of effective conflict-checking systems, and suggests model conflict-checking procedures. Additionally, the article considers the duty of competence owed to law school clinic clients, clinical faculty's ethical duties to clients, and issues of adequate assistance of counsel in criminal cases handled by law school clinic students. The article concludes that in spite of the burdens that greater focus on conflicts of interest and competence issues might impose on law school clinic programs, clinic students, faculty, and clients will benefit from such efforts.
Abstract: Law school clinics play an important role in training future lawyers and in providing legal assistance to traditionally under-represented individuals and groups. In addition to facing the legal issues present in any law practice, law clinic students and faculty are often confronted with ethical issues that lawyers representing poor and unpopular clients sometimes face - outside interference in case and client selection. This article explores the ethical considerations raised by interference in law school clinic case and client selection and limitations on the means of representation lawyers may employ in representing their clients. The article's analysis provides a useful framework for responding to interference with not just law school clinics, but also with legal services lawyers, public defenders, and private practitioners representing poor and unpopular clients and causes.
Abstract: Commentators have either predicted or argued for more disciplinary referrals based upon Rule 11 proceedings. Now, some ten years after the 1993 amendments to Rule 11, this Article considers two questions about the relationship between Rule 11 sanctions against lawyers and professional discipline against these lawyers for that same conduct. First, is there any empirical evidence to support a relationship between Rule 11 sanctions against lawyers and professional discipline for their litigation conduct? Second, should lawyers face professional discipline for litigation conduct giving rise to Rule 11 sanctions? The answers to these two questions shed some light on the role Rule 11 plays and should play in the regulation of the legal profession. This Article explores the history and types of lawyer regulation and how Rule 11 fits into the scheme of regulating lawyers for their litigation conduct in federal courts. It analyzes the enforcement of the 1993 version of Rule 11 by the federal courts over the last ten years and the correlation of Rule 11 sanctions and lawyer discipline for the same conduct. The data collected demonstrate that there is little correlation between Rule 11 sanctions against lawyers and reported cases of disciplinary bodies imposing discipline on the lawyers for their litigation conduct. Finally, the author evaluates the institutional choices implicit in the current relationship between Rule 11 and lawyer discipline and discusses whether there should be more disciplinary sanctions against lawyers for Rule 11 violations. The author argues that the present institutional choice, which does not require lawyer discipline in every instance where a federal judge sanctions a lawyer's litigation conduct, is a wise choice.
Rule 11, sanctions, ethics, lawyer discipline, empirical, lawyer sanctions, Rule 11 sanctions, professional responsibility
Abstract: Hardly a month goes by when there is not news of another defendant who, after a lengthy incarceration, is exonerated based on DNA evidence. Investigation into exonerations reveals that uncorroborated jailhouse informant testimony and the concealment of exculpatory evidence required to be disclosed to the accused under Brady v. Maryland and prevailing ethical rules are major contributing causes of wrongful convictions. When combined, false jailhouse informant testimony and the prosecutor's obligations under Brady sidetrack procedural justice whenever they occur and, when the accused is factually innocent, lead to the denial of substantive justice by convicting the innocent. In this article, the author explores these causes of wrongful convictions, their legal, ethical, and societal ramifications, and offers a number of pragmatic measures that prosecutors, defense lawyers, and judges can take immediately to respond to the injustice of false jailhouse informant (snitch) testimony and Brady violations.
The author begins with a short discussion of the problem of wrongful convictions and the roles that false snitch testimony and prosecutorial misconduct play in convicting the innocent. In order to shape effective remedies to prevent wrongful convictions, it is necessary to understand the scope of the problem and the nature of causes of wrongful convictions. The author then outlines a number of realistic measures that head prosecutors, trial and appellate judges, and defense lawyer should take to prevent false snitch testimony and Brady violations. The author's goal in outlining these practical, low cost or no-cost recommendations to counter the prejudicial effects of snitch testimony and Brady violations is to generate interest by the countless good prosecutors, defense lawyers, and judges who could prevent wrongful convictions through their daily work.
jailhouse informants, Brady v. Maryland, snitch, Brady violation, exculpatory evidence, wrongful conviction, exoneration, DNA, prosecutor, prosecutorial misconduct, norms
Abstract: The value of clinical legal education courses and the faculty teaching those courses has long been contested. A focal point for this opposition has been resistance to the American Bar Association (ABA) accreditation standard that requires law schools to establish long-term employment relationships with clinical faculty and provide them with a meaningful voice in law school governance. By integrating clinical faculty into law schools, the ABA aims to advance the value of clinical legal education and the professional skills and values it promotes. In the decades since the ABA created the first clinical faculty standard, clinical legal education in the United States has developed as pedagogy and the number of clinical faculty has greatly increased. Despite these trends, a recent decision by the ABA Accreditation Committee approving short-term contracts and the denial of meaningful participation in faculty governance for clinical faculty demonstrates that the debate over the appropriate status continues. In this debate, there is often little or no mention of the history of the accreditation standard in question, perhaps because no historical account of its evolution exists. In this article, the authors fill that gap in the literature by tracing the evolution of the ABA standard concerning clinical faculty status. The article begins with a discussion of the role of the ABA in legal education and a brief history of the development of clinical legal education. It then discusses the events leading up to the initial adoption in 1984 of a standard addressing clinical faculty and to the strengthening of the standard in 1996. The authors conclude by addressing changes to the standard in 2005 and how those changes have revived the debate over the status of clinical faculty. By surfacing the historical debates and the evolution of the standard for clinical faculty, the article provides the basis for reasoned, informed decisions by the ABA and the legal academy concerning the value of clinical legal education and the role of clinical faculty in law schools.
American Bar Association (ABA), legal education, law schools, ABA Standards, clinical legal education, academic freedom, tenure
Abstract: This article analyzes the evolution of American Bar Association (ABA) Accreditation Standards relating to clinical legal education externship programs. The article explores and evaluates the historical debate among legal educators on the issue of whether the ABA's highly structured regulation of externships has been helpful to this form of clinical legal education. The article demonstrates that although ABA regulation of externships has limitations, it has been helpful to the development of externships programs. The article concludes that ABA regulation is likely to remain highly structured unless law schools demonstrate that sufficient instructional resources will be devoted to make externships quality educational experiences without detailed externship standards and interpretations.
ABA, American Bar Association, accreditation, legal education, legal history, ABA standards, externship, field placement, history of ABA, history of legal education, AALS, Association of American Law Schools, Standard 305, ABA Standard 305, history of AALS
Abstract: The legal academy has given little thought to how practicing law within law schools affects professional responsibilities and is different from representing clients in a traditional law firm or how notions of academic freedom affect lawyering in law schools. Yet repeated attempts to interfere with law clinic representation starkly illustrate how lawyering in the academy might be different, under notions of professional responsibility and academic freedom, from other lawyering or typical law teaching.
Scholarship on interference in clinical programs has focused primarily on the impropriety of interference on the institutional autonomy of law schools by those outside the university, such as politicians or business interests attempting to pressure universities and law schools not to represent or to abandon the representation of some clients. Conversely, internal intrusions on law clinic lawyering, usually by university or law school administrators seeking to influence whether and how clinical faculty and students represent some clients, have not been well-publicized. Consequently, there is virtually no scholarly attention to the tension between the individual lawyer-professor's academic freedom and professional responsibility to clients and the law school's decision-making authority.
The authors are motivated to write this article because of some of the more egregious instances of interference on lawyering in the academy, which include the firing of two clinical faculty members for their involvement in a civil rights case, pressure by university administrators on clinical faculty to avoid taking on potentially controversial cases, and a law school deans forcing the clinic to withdraw from client representation or to limit the types of remedies sought for clinic clients. In these instances, the interference with the faculty representation of clients as part of their teaching was not motivated by educational or professional responsibility concerns but, apparently, to mollify critics of the faculty member.
Against this backdrop, this article considers how the practice of law in the legal academy is both similar to and different from the typical practice of law in a firm or public interest organization and the teaching that law faculty do in the classroom. The authors focus in particular on how notions of academic freedom apply to professors lawyering in the academy and how the professional responsibilities of attorney-professors influence their teaching pursuits and relationships with the dean, other faculty members, and the university administration.
The article focuses on two underlying questions. First, how much discretion should individual faculty have in selecting cases for their courses? Second, once a faculty member undertakes to represent a client within a course, should a dean, clinical program director, or other person not involved in the client’s representation be able to direct the faculty member's decisions on how to handle the matter? In the process of addressing these issues, we suggest an approach that seeks to be true to the professional rights and responsibilities of law faculty both as academics and attorneys.
academic freedom, academy, autonomy, clinic, clinical education, discretion, ethics, faculty governance, freedom in the classroom, interference in clinical programs, internal interference, law clinic, practicing law within law schools, professional responsibility, restrictions on clinics
© 2009 Social Science Electronic Publishing, Inc. All Rights Reserved. FAQ Terms of Use Privacy Policy Copyright This page was served by apollo 6 in 0.140 seconds.
