LEGAL ETHICS & PROFESSIONAL RESPONSIBILITY eJOURNAL

"The Politics of Selecting the Bench from the Bar: The Legal Profession and Partisan Incentives to Politicize the Judiciary" Free Download
HKS Working Paper No. RWP15-001

ADAM BONICA, Stanford University Department of Political Science
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MAYA SEN, Harvard University - Harvard Kennedy School (HKS)
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The American judiciary has increasingly come under attack as polarized and politicized. Using a newly collected dataset that captures the ideological positioning of nearly half a million judges and lawyers who have made campaign contributions, we present empirical evidence showing politicization through various tiers of the judicial hierarchy. We show that the higher the court, the more conservative and more polarized it becomes, in contrast with the broader population of attorneys, who tend to be liberal. These findings suggest that political actors not only appear to rely on ideology in the selection of judges, but that they strategically prioritize higher courts. To our knowledge, our study is the first to provide a direct ideological comparison across tiers of the judiciary and between judges and lawyers, and also the first to document how — and why — American courts are politicized.

"Sunburned: How Misuse of the Public Records Laws Creates an Overburdened, More Expensive, and Less Transparent Government" Free Download
Stetson Law Review, Vol. 44, 2015, Forthcoming

KEITH W. RIZZARDI, St. Thomas University School of Law
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The ideal of an informed citizenry necessitated the creation of public records laws, including the Freedom of Information Act. But at the state level, the “Government in the Sunshine? laws are being misused, especially in the Sunshine State. Academics have warned of the problem, and increasingly, public servants wrestle with overzealous citizens who are pushing the public records laws to the point of logical absurdity. One Florida town spent $20,000 on legal fees because it gave a citizen a bill for a $1.20 in photocopies; another one continues to litigate over a public records request that it fulfilled, allegedly because a two-day response was not fast enough. The reality of the laws, as implemented, is that people have rights, without any responsibility, and the reckless abuse of these public records laws necessitates reform.

This article shows that some of the problems can be solved. The executive branch of government should take compliance with the public records laws seriously, and engage in greater self-policing. Open government does not require every person to be a policeman, nor should it allow a self-appointed watchdog to become a vigilante. The judicial branch should avoid instinctive declarations that the public records law provides “virtually unfettered? rights. Instead, the courts should carefully assess the facts, and the letter of the law. Courts must recognize that clever citizens, playing “gotcha? with the government, will bury the agency with burdensome requests, evade their duty to pay for the costs of asking for public records, sue for every type of error -- no matter how petty -- and then demand attorney’s fees as a reward for manufacturing the problem. The legislature should make statutory changes, too, mirroring already existing statutes. Citizens should be required to give the government notice of intent to sue, and an opportunity to fix the problem, before they rush to court. In addition, the incentive to rush to court should be decreased by exposing abusive lawsuits to the possibility of paying the government’s attorney’s fees. Lastly, the legal profession can contribute to the solution, by adhering to the applicable standards of legal ethics and professionalism, and even by holding pro se plaintiffs accountable.

The excesses of government in the sunshine have sunburned the government. As a result, the public servants, acting rationally in an effort to reduce the burdens and economic risks of the public records law, are incentivized not to document their decisions. The result is a less transparent government that costs even more. Rather than allowing the abuses, costs, and ironic consequences to continue, this article offers some sunscreen.

"Class Counsel as Litigation Funders" Free Download
Georgetown Journal of Legal Ethics, Vol. 28, p. 271, 2015

MORRIS RATNER, University of California Hastings College of the Law
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In a prior article, William Rubenstein and I explored the theoretical and policy rationales for making cost investment in class actions directly profitable, e.g., by awarding a multiplier on costs - a departure from current practice pursuant to which costs are merely reimbursed. This Article grapples with the doctrinal question of whether such cost profits are permissible. That inquiry traverses three ethical boundary lines which, as currently drawn, fail to fully acknowledge the distinct role played by plaintiffs’ counsel in class actions as litigation financiers: the lines between “professional services? and other charges; consent and its absence; and permissible and impermissible conflicts.

"Anxiety or Rule Against Perpetuities?: Mental Health Inquiries in Bar Admission Post-Louisiana" Free Download

MATTHEW SAMET, USC Gould School of Law
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Despite years of litigation on whether mental health inquiries in bar admission are discriminatory and violate the ADA, courts and state bars still disagree over them. A recent settlement between the DOJ and the Louisiana Supreme Court removing these inquiries from Louisiana’s bar application has some proclaiming mental health questions are now definitively illegal. Since Louisiana had copied a standard form used by twenty-five states, the agreement could have had far-reaching consequences.

However, the DOJ’s findings that invalidated mental health inquiries ignored twenty years of established federal and state case law supporting narrowly tailored questions into serious mental illnesses. Moreover, the settlement lacks legal precedential effect, and in practical terms will not influence other states to settle given the weaknesses of the DOJ’s ADA enforcement scheme in the bar admittance context. Thus, in the likely case this issue is litigated again, the settlement is unlikely to have much influence.

While the DOJ’s arguments were weak, changes to mental health questioning are still necessary as a matter of policy. In contrast to scholarship calling for a unilateral ban on such inquiries, I advocate for questions into mental illnesses that may excuse prior misconduct or current ailments affecting the ability to practice law. Also, bars must clarify how they use such mental health information, particularly that treatment will only serve as a mitigating factor to excuse past misbehavior or present illnesses. Finally, although narrow inquiries into serious mental diseases are permissible, they should be removed to encourage treatment for all disorders.

"Penalties: Asserting State-of-Mind Defense to Accuracy-Related Penalty Waives Attorney-Client Privilege" Free Download
Journal of Tax Practice and Procedure, December 2014-January 2015

BRYAN C. SKARLATOS, Kostelanetz & Fink, LLP, New York University School of Law
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The attorney client privilege is a well-known common law rule of evidence and a fundamental element of the relationship between an attorney and a client. The privilege was developed “to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.? Despite its noble purpose, the privilege is not nearly as broad as many people believe. A recent Tax Court case illustrates how the privilege can easily be waived with respect to a tax opinion whenever a taxpayer asserts a defense to an accuracy-related penalty that is based on the taxpayer’s state of mind.

"Why Chief Justice Roy Moore and the Alabama Supreme Court Just Made the Case for Same-Sex Marriage" Free Download

ADAM LAMPARELLO, Indiana Tech - Law School
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The Alabama Court of the Judiciary should remove Roy Moore from the Supreme Court of Alabama for a second and final time. Over ten years after being ousted from the Alabama Supreme Court, Chief Justice Moore is embroiled in yet another controversy that involves disregarding the federal courts and creating chaos in the legal system. In fact, Moore recently stated that he would ignore the Supremacy Clause and not respect a U.S. Supreme Court decision invalidating same-sex marriage bans. That statement brings back memories of Governor Wallace’s infamous stand at the schoolhouse door. At least Wallace had a change of heart later in life and distanced himself from his “segregation now, segregation tomorrow, and segregation forever? speech. Moore has not learned his lesson. But he will soon, when the U.S. Supreme Court rules that same-sex marriage bans violate the Equal Protection Clause. If, as Moore has suggested, he would not follow a ruling by the Supreme Court in favor of same-sex marriage, the Alabama Court of the Judiciary should dismiss him from the bench immediately.

Moore’s behavior, not to mention the ruling by the Alabama Supreme Court in Ex Parte State of Alabama ex. rel. Alabama Policy Institute is akin to a bad movie sequel that should have never been made and rightfully bombs at the box office. Technically, the Alabama Supreme Court did not err in disregarding the federal court’s order. The fact that it did so is troubling. Even more troubling are the legal gymnastics that the Court engaged in to achieve what even a casual observer knew would be a decision reaffirming traditional marriage. Ironically, the Court’s decision – and the legal jujitsu it employed – makes the best possible case for same-sex marriage. Among other things, the decision threatens to disrupt the country’s delicate system of cooperative federalism, undermine the rule of law, and tar the judiciary with the taint of arbitrariness.

Make no mistake: this case is not about states’ rights. It is about the integrity of the judicial system, which rises and falls on the public’s perception that judges are impartial and objective decision-makers, not self-interested actors who view the law as a vehicle to impose their policy predilections on citizens. This article summarizes the Alabama Supreme Court’s 148-page decision and explains why it was motivated by politics and ideology, not law and justice. The decision represents animus toward same-sex couples and a continuation of Alabama’s long history of drawing arbitrary classifications that enshrine discrimination into the law. For these and other reasons, the Alabama Supreme Court's decision makes the best case in favor of a decision by the U.S. Supreme Court that same-sex marriage bans violate the Equal Protection Clause.

"Teach Them to Fish: Giving Junior Attorneys Feedback on Their Writing" Free Download
Washington Lawyer, February 2015

ALYSSA DRAGNICH, University of Miami School of Law
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This article discusses effective methods for attorneys to provide junior attorneys with feedback on their writing and the importance of providing such feedback.

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Advisory Board

Legal Ethics & Professional Responsibility eJournal

STEPHEN GILLERS
Vice Dean and Professor of Law, New York University School of Law

DAVID J. LUBAN
Georgetown University Law Center

RONALD DANIEL ROTUNDA
Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University, The Dale E. Fowler School of Law

WILLIAM H. SIMON
Arthur Levitt Professor of Law, Columbia University - Law School, William W. and Gertrude H. Saunders Professor of Law, Stanford University - Stanford Law School

DAVID B. WILKINS
Harvard University - Center on the Legal Profession

CHARLES W. WOLFRAM
Charles Frank Reavis Sr. Professor Emeritus, Cornell Law School