LEGAL ETHICS & PROFESSIONAL RESPONSIBILITY eJOURNAL
"Resizing the Rules of Professional Conduct"
Georgetown Journal of Legal Ethics, Vol. 27, p. 227, 2014
U Denver Legal Studies Research Paper No. 14-45
ELI WALD, University of Denver Sturm College of Law
As the legal profession continues to grow in size and specialization, critiques of the ABA Model Rules of Professional Conduct’s one-size-fits-all regulatory approach mount. Opponents of the Rules argue that with so many lawyers doing increasingly different things, universal rules are bound to ill-fit the practices of most lawyers; and call for contextual regulation in the form of specialized codes of conduct. Proponents of the Rules retort the universal rules which treat all lawyers the same embody equality and professionalism, and add that specialty codes are impractical given fluid modern practice realities that cut across traditional subject matter, geographical and jurisdictional lines. The result in an uneasy stalemate: the Rules maintain their one-size-fit-all approach, which critics argue renders them increasingly anachronistic and of diminishing value to practicing lawyers.
This Article argues that a key problem with the Rules is not that they purport to be universal but rather that they implement the wrong one-size-fits-all model based on universal content that is out of touch with the practice of American lawyers. Specifically, the Article establishes that the Rules’ approach is based on four obsolete assumptions about lawyers and their practice realities: that most lawyers are litigators, that they predominantly serve clients as opposed to the legal system and the public, that they hail from a homogenous background, and that most lawyers practice as individuals. These assumptions, however, are no longer valid given the immense and growing diversity of the American legal profession. In order to remain relevant in the twenty-first century, and irrespective of whatever reforms may lay ahead in the long term, at minimum what the Rules need is resizing: a different one-size-fits-all approach accurately reflecting a contextual and empirically informed content that is not so greatly divorced from the realities of practicing lawyers.
Instead of adhering to the status quo or implementing impractical specialized codes of conduct, the Article advocates for a middle-ground approach: the adoption of univertext rules – universal rules grounded in the actual contextual empirical realities of practicing lawyers rather than outdated assumptions about them. Exploring and building on recent empirical analyses of the legal profession the Article demonstrates how the Rules can replace an anachronistic focus on litigators with rules for all lawyers, can include provisions that explore the meaning of lawyers’ roles as officers of the legal system and public citizens alongside that of the hired gun, can engage lawyers hailing from increasingly diverse backgrounds, and can acknowledge the realities of lawyers practicing in firms rather than as individuals.
"Mitigating Foul Blows"
Georgia Law Review, 2015, Forthcoming
Seattle University School of Law Research Paper
MARY BOWMAN, Seattle University School of Law
For nearly eighty years, courts have offered stirring rhetoric about how prosecutors must not strike foul blows in pursuit of convictions. Yet while appellate courts are often quick to condemn prosecutorial trial misconduct, they rarely provide any meaningful remedy. Instead, courts routinely affirm convictions, relying on defense counsel's failure to object or concluding that the misconduct was merely harmless error. Jerome Frank summed up the consequences of this dichotomy best when he noted that the courts' attitude of helpless piety in prosecutorial misconduct cases breeds a deplorably cynical attitude toward the judiciary.
Cognitive bias research illuminates the reasons for, and solutions to, the gap between rhetoric and reality in prosecutorial misconduct cases. This article is the first to explore theories of cognition that help explain the frequency of prosecutorial misconduct and the ways that it likely affects jurors and reviewing judges more than they realize. As a result, the article advocates for sweeping changes to the doctrine of harmless error and modest changes to the doctrine of plain error as applied in prosecutorial misconduct cases. These solutions will help courts abandon their attitude of helpless piety, clarify the currently ambiguous law on what behavior constitutes prosecutorial misconduct, encourage defense counsel to raise timely objections to misconduct, and reverse convictions when misconduct may well have affected the outcome of the case but affirm when the misconduct was trivial.
"Counsel for the Divorce"
Boston College Law Review, Vol. 55, September 2014
U Denver Legal Studies Research Paper No. 14-47
REBECCA AVIEL, University of Denver Sturm College of Law
This article challenges the legal profession’s foundational assumption that legal services must be delivered in an adversarial posture, with lawyers compelled to engage in robust partisan advocacy on behalf of their clients’ individualized interests. This narrow conception of the lawyer’s role is particularly inapt in family law because many divorcing spouses actually seek joint counsel, understanding that they have profound shared interests in minimizing transaction costs, maximizing the value of the marital estate, and reducing the hostility and animosity that are so harmful to children. Couples who wish to advance these interests by retaining joint counsel are poorly served by the profession’s insistence that they each retain their own lawyer or forego legal representation altogether. This binary choice, while justified by reference to seemingly beneficent notions of undivided loyalty, turns out to be costly, paternalistic, and willfully unresponsive to changing realities in the market for legal services.
"Coming Out in the Classroom: Law Professors, Law Students and Depression"
Journal of Legal Education, Forthcoming
BRIAN S. CLARKE, Charlotte School of Law, Washington & Lee University School of Law
The evidence of a mental health crisis in law schools and in the legal profession is overwhelming and undeniable. Our students are suffering. Our former students, who are now our colleagues in the bar, are suffering. Despite the widespread nature of the problem, lawyers and law students (and law professors) who struggle with mental illness – whether depression, anxiety disorder, bipolar disorder, or something more serious – all too often suffer in silence and do their best to appear "normal" and "happy." Why? Because there remains a very real stigma attached to mental illness in the legal profession, where it is seen as a sign of weakness, a lack of dedication or a character flaw.
Given that today’s depressed law students will, more likely than not, be tomorrow’s depressed lawyers, law schools and the legal professoriate must bring the issue of mental illness out of the closet and into the open. We must do more to educate our students about mental illness and remove the stigma attached to it.
In this essay, I discuss how I "come out" about my mental illness in the classroom, share my personal struggles with my students, and use my struggles to teach my students about mental illness, the stresses of the legal profession, and strategies for addressing mental health while practicing law.
"When Criminal Prosecution of a Business and its Employees Creates a Conflict of Interest: Does Independent Counsel Address the Conflict?"
Journal of Legal Studies in Business, Forthcoming
JOSEPHINE SANDLER NELSON, Stanford Graduate School of Business
RICHARD O. PARRY, California State University, Fullerton
Criminal prosecution of a business and its employees or former employees presents a challenge. For society and a district attorney, attorney general, or the federal department of justice, the primary concern is the conviction of those who have broken the law. That interest must be tempered by the protection afforded criminal defendants by the Constitution. For a business, the competing concerns represent a significant potential for a conflict of interest. The rights and interests of the business must be balanced against the rights and interests of the employees or former employees.
In this respect, a business that is a criminal defendant finds itself in a position that is similar to that of an insurer in civil litigation. Some civil litigation involves the need for a reservation of rights letter by the insurer to the insured. The attorney retained by the insurer may find him or herself in a conflict of interest. In civil litigation, that conflict of interest may be addressed by the appointment of independent counsel. The same approach may be appropriate in criminal litigation.
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Legal Ethics & Professional Responsibility eJournal
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 Law School - Program on the Legal Profession
CHARLES W. WOLFRAM
Charles Frank Reavis Sr. Professor Emeritus, Cornell Law School