LEGAL ETHICS & PROFESSIONAL RESPONSIBILITY eJOURNAL

"Abusive Tax Avoidance and Institutional Corruption: The Responsibilities of Tax Professionals" Free Download
Edmond J. Safra Working Paper No. 56

GILLIAN BROCK, University of Auckland, Harvard University - Edmond J. Safra Center for Ethics
Email:
HAMISH RUSSELL, University of Toronto
Email:

Professionals and professional firms provide a range of taxation-related services, from advising clients on their tax obligations to designing and implementing tax-reduction strategies. Provided that tax professionals respect the letter of the law, are all such tax services morally permissible? We answer this question in the negative by distinguishing between institutional integrity and institutional corruption in fiscal arrangements; tax services that promote a situation of fiscal institutional corruption are impermissible, given that they severely inhibit the ability of taxation institutions to collect revenue efficiently and equitably. The professional facilitation of abusive tax avoidance — explicit tax reduction that is contrary to the spirit or intent of the law — is a particularly prominent aspect of fiscal institutional corruption. We illustrate the role of professionals in designing, promoting and implementing abusive tax avoidance strategies through several case studies, including the Wyly offshore network and the KPMG tax shelter scandal. In addition, we claim that tax professionals have specific responsibilities to help remedy institutional corruption associated with abusive tax avoidance. To argue this thesis, we present general principles for assigning remedial responsibilities to particular agents. We then apply those principles to determine what three major groups of tax professionals — accountants, lawyers, and financial experts — ought to do about abusive tax avoidance.

"Reformation from Criminal to Lawyer: Is Such Redemption Possible?" Free Download
Potchefstroom Electronic Law Journal, Vol. 17, No. 4, 2014

MAGDA SLABBERT, University of South Africa - School of Law
Email:
D J BOOME, Independent

If a person with a criminal record were to apply for admission to the legal profession, the applicant would naturally harbour the hope that his or her application would succeed. However, in the absence of a reformation of his or her moral character, the certainty is that the application will fail, thus leading to disappointment. The aim of this article is to analyse the correctness of the above proposition. It is argued that a criminal record is not an insurmountable obstacle to a successful application for admission, but that such applications may succeed only in exceptional circumstances.

"Teaching Knowledge, Skills, and Values of Professional Identity Formation" Free Download
Building on Best Practices: Transforming Legal Education in a Changing World (Deborah Maranville, et al., eds., Lexis 2015)

LARRY O. NATT GANTT, II, Regent University - School of Law
Email:
BENJAMIN V. MADISON, Regent University School of Law
Email:

Both Best Practices for Legal Education and Educating Lawyers: Preparation for the Profession of Law suggest that it is a best practice to cultivate students’ professional identity formation explicitly and pervasively as part of the program of legal education. Helping students develop their “professional identity? is different from teaching them “professionalism,? as the latter term is often interpreted. Lawyer professionalism has often referred to adherence to standards or norms of conduct beyond those required by the ethical rules, and the focus of the current discussion of professionalism largely remains on outward conduct like civility and respect for others. Civility and respect for others are foundational to emerging lawyers’ understanding of professional conduct, but professional identity engages students at a deeper level by asking them to internalize principles and values such that their actions flow habitually from their moral compass.

The process of forming students’ professional identities requires exposing them to explicit areas of knowledge, skills, and values. This section of the forthcoming book Building on Best Practices: Transforming Legal Education in a Changing World (Lexis 2015) builds on Best Practices’ thesis concerning what it means to be a legal professional first by identifying more specifically the content of that knowledge and the nature of those values and skills, and then by discussing particular teaching methods aimed at promoting students’ professional identity formation. Because formation of developing lawyers’ professional identities requires pervasive efforts, a law school that has embraced the goal of formation ought to combine the practices suggested in this section with those in the other sections of Building on Best Practices.

"Happiness 101 for Legal Scholars: Applying Happiness Research to Legal Policy, Ethics, Mindfulness, Negotiations, Legal Education, and Legal Practice" Free Download
Research Handbook of Behavioral Law and Economics, Kathryn Zeiler & Joshua C. Teitelbaum eds., 2015, Forthcoming

PETER H. HUANG, University of Colorado Law School
Email:

This chapter offers legal scholars a brief introductory survey of modern happiness research. This chapter analyzes how happiness research can inform legal policy. This chapter explains how and why happiness research differs from and is related to behavioral economics. This chapter develops two conditions under which law and policy should care more about experienced happiness versus remembered happiness. This chapter develops connections among being happy, being ethical, and being mindful. This chapter illustrates how happiness research applies to and relates to negotiations and conflict resolution. Finally, this chapter considers how happiness research can improve legal education and legal practice.

"Whose Truth? Objective and Subjective Perspectives on Truthfulness in Advocacy" Free Download

W. BRADLEY WENDEL, Cornell University - School of Law
Email:

A lawyer confronts many features of the world that are given, inflexible, and must simply be dealt with; at the same time she has latitude for creativity, for the exercise of skill and judgment toward the realization of the client’s ends. Although in law school it may seem that the law that is open-textured, manipulable, and the wellspring of creative lawyering, in practice the facts do not come pre-packaged and accepted as true for the purposes of an appellate court’s review, but are highly contingent and the product of the interaction between a lawyer and witnesses, documents, and other sources of information. It is exactly in this respect, however, that the theory of legal ethics is relatively under-developed. In recent years, legal ethics scholarship has changed its emphasis from ordinary first-order morality to a consideration of issues in democratic theory and legal philosophy. Focusing on the legitimacy of norms established through democratic political processes has yielded a robust theory of ethics with respect to the content of law: Ethical lawyering requires understanding the content of legal rules not from the Holmesian bad man perspective of “what can I get away with,? but from the point of view of the law as it would be understood by an impartial member of an interpretive community.

The question to be considered in this paper is, if one believes that being an ethical lawyer has something to do with democratic legitimacy and the authority of law, what practical stance must a lawyer take with respect to facts? The answer to this question depends on the perspective one takes on the relationship between the role of lawyers as advocate and the contribution made by advocacy to legal legitimacy. Almost every scholar who has considered the problem of connecting ethical prescriptions for lawyers with considerations of political legitimacy, including Geoffrey Hazard and Dana Remus, Daniel Markovits, William Simon, and David Luban, has argued for a subjective perspective, so that the most important criterion for legitimacy is whether the legal system has taken into account the story the client wishes to tell. Using several case studies, I argue in this paper for the unpopular, unloved objective perspective, with the central criterion of legal legitimacy being what is the case, based on both law and facts – i.e. whether the client does or does not have a legal entitlement to do what is in her interests. Political legitimacy depends on adhering to ideals of truthfulness in politics. The alternative, subjective perspective on the relationship between legitimacy and advocacy, although emphasizing the extremely important value of human dignity, ultimately leads to a cynical, bullshitty (in Harry Frankfurt’s sense ) style of advocacy that undermines its own claim to political legitimacy.

My argument is not that lawyers have a direct obligation to seek the truth. Our adversarial system of litigation presupposes that each party and her advocate will have their own perspective on the truth and be permitted to argue for it, and introduce evidence in support of it, at trial. The general theoretical orientation of the adversarial system toward partisan perspectives on the truth has, however, tended to make lawyers forget that they have some responsibility with respect to the truthfulness of litigated matters. Following Bernard Williams, I distinguish between truth with respect to some belief (“it is true that P,? where P would be something like “the defendant robbed the victim,? or “the plaintiff was standing right here when the accident occurred?) and truthfulness as an ideal that may apply to a process or institution of government. This emphasis on truth as a propositional matter has obscured the ethical analysis that should apply to practices, such as evidence gathering, the conduct of civil discovery, witness preparation, and the examination of witnesses at trial. The legitimacy of the civil justice system depends on its being a process of reason-giving, which in turn depends on the reasons having something to do with what actually is the case, as a matter of fact.

"Conceptualizing Student Practice for the 21st Century: Educational and Ethical Considerations in Modernizing the District of Columbia Student Practice Rules" Free Download
Georgetown Journal of Law and Ethics, Vol. 28, Forthcoming

WALLACE J. MLYNIEC, Georgetown University Law Center
Email:
HALEY D. ETCHISON, Georgetown University Law Center
Email:

This article traces the history of the amendment process. It provides a short history of student practice rules and then, using the student practice rule in effect in the District of Columbia prior to the 2014 amendments, describes the various components of those rules that courts and bars across the nation have implemented to assist courts, advance legal education, and preserve advocates’ ethical obligations to clients. It then describes some of the comments to the proposed amendments offered by the District of Columbia Bar and other D.C. lawyers during the public comment period and the modifications to the District of Columbia student practice rule that the District of Columbia Court of Appeals accepted. Finally, it discusses some areas of disagreement that arose during the process and a description of the reasons for those disagreements.

^top

About this eJournal

This eJournal distributes working and accepted paper abstracts related to the legal profession. Coverage includes scholarship on the law governing lawyers, as well as theoretical or interdisciplinary approaches to normative questions related to lawyers and the legal profession.

Submissions

To submit your research to SSRN, sign in to the SSRN User HeadQuarters, click the My Papers link on left menu and then the Start New Submission button at top of page.

Distribution Services

If your organization is interested in increasing readership for its research by starting a Research Paper Series, or sponsoring a Subject Matter eJournal, please email: RPS@SSRN.com

Distributed by

Legal Scholarship Network (LSN), a division of Social Science Electronic Publishing (SSEP) and Social Science Research Network (SSRN)

Directors

LSN SUBJECT MATTER EJOURNALS

BERNARD S. BLACK
Northwestern University - School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)
Email: bblack@northwestern.edu

RONALD J. GILSON
Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
Email: rgilson@leland.stanford.edu

Please contact us at the above addresses with your comments, questions or suggestions for LSN-Sub.

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