LEGAL ETHICS & PROFESSIONAL RESPONSIBILITY eJOURNAL
"The Ethics of Prosecutorial Disclosure"
30 Crim. Just. 41 (Fall 2015)
Washington University in St. Louis Legal Studies Research Paper No. 15-11-01
PETER A. JOY, Washington University in Saint Louis - School of Law
KEVIN C. MCMUNIGAL, Case Western Reserve University School of Law
Do ethical disclosure rules require more of prosecutors than constitutional disclosure rules? Should they? These questions have been raised in debates about prosecutorial disclosure in recent years, with state courts reaching divergent conclusions on how they should be answered. In April of this year, the District of Columbia Court of Appeals in In re Kline, 113 A.3d 202 (D.C. 2015), became the most recent court to address these questions. In this column we examine the Kline opinion, the contours of the debates that preceded it, and the division of views about the proper interpretation of Model Rule 3.8(d) and state ethics rules modeled on Rule 3.8(d).
"Why is There No Clear Doctrine of Informed Consent for Lawyers?"
University of Toledo Law Review, Forthcoming
Boston Univ. School of Law, Public Law Research Paper No. 15-48
NANCY J. MOORE, Boston University School of Law
Written as a contribution to a symposium issue of the Toledo Law Review honoring retiring professor Susan Martyn, this article takes as its starting point an early article by Professor Martyn entitled â€śInformed Consent in the Practice of Law.â€? In that article, Professor Martyn decried the inability of clients to control the course of their representation and urged state legislatures to remedy this situation by enacting legislation creating an action in damages based upon a lawyerâ€™s failure to obtain the clientâ€™s informed consent. Such an action would be similar to common law actions that courts had recently recognized by patients against their physicians for failure to obtain their informed consent to various medical procedures. In the decades since publication of this article, it is not surprising that legislatures have not enacted such statutes. What may be surprising, however, is that courts have not significantly expanded the availability of a legal malpractice action when the gravamen of the complaint is the lack of informed consent.
The purpose of this article is to attempt to explain why common law courts have not clearly adopted the informed consent doctrine in the legal context to the same extent as they have done so in the medical context. It suggests that a primary reason for this lack of development of informed consent in legal practice is the lack of clarity and consensus among courts and commentators concerning several separate but related concepts: the allocation of decision-making authority between lawyer and client, the lawyerâ€™s duty to keep the client reasonably informed concerning the representation, and the lawyerâ€™s duty to fully explain matters when the clientâ€™s consent is necessary. This confusion was evident not only in the ABA Code of Professional Responsibility that was in effect when Professor Martyn published her formative article, but also in the ABA Model Rules of Professional Conduct that were initially adopted in 1983. While some of the confusion was removed in subsequent amendments to the Model Rules, which were adopted as a result of recommendations by an ABA commission on which both Professor Martyn and I served, there continues to be significant confusion concerning these related concepts.
Speaking for herself, the author confesses that she now believes that the commission could have and should have done more to eliminate this confusion, including providing additional guidance concerning which actions lawyers are â€śimpliedly authorizedâ€? to take on behalf of clients and expressly requiring lawyers to obtain the clientâ€™s â€śinformed consentâ€? for all decisions that are the clientâ€™s to make. However, with respect to the failure of relevant law outside the rules of professional conduct to clearly designate which decisions are for clients and which are for lawyers, the author rejects the conclusion that the Model Rules should have adopted the view of the American Law Institute that clients should have the right to instruct their lawyers so long as such instructions are lawful and do not require lawyers to violate their professional responsibilities. In the authorâ€™s opinion, there are normative reasons why courts have not uniformly embraced this view; as a result, the allocation of decision-making authority between lawyer and client involves highly contested issues that should not be resolved by fiat in rules of professional conduct. Thus she is satisfied that the commission rightfully declined to resolve the question of who decides when the lawyer and client fundamentally disagree over the means of the representation, fully cognizant that the failure to do so may reduce the likelihood that common law courts will adopt the informed consent doctrine in legal practice to the same extent that they have done so in medical practice.
"'Mr. Bad Example': Why Lawyers Need to Embrace Therapeutic Jurisprudence to Root Out Sanism in the Representation of Persons with Mental Disabilities"
Wyoming Law Review, Forthcoming
NYLS Legal Studies Research Paper
MICHAEL L. PERLIN, New York Law School
ALISON J. LYNCH, Disability Rights New York
Litigants with mental disabilities are taken less seriously by their own lawyers, trivialized by opposing counsel, and disparaged by judges. This is largely a result of â€śsanism,â€? an irrational prejudice of the same quality and character of other irrational prejudices such as racism, sexism or homophobia. Recognizing and combatting sanism creates extra burdens on lawyers who do seek to provide effective counsel for this population. Such lawyers need special tools to combat sanism, and we believe that lawyering skills rooted in therapeutic jurisprudence provide the best foundation through which to create a positive psychology of persuasion in this representation. Our presentation will focus on the use of therapeutic jurisprudence to combat sanism and its use as a persuasive tool in the legal system.
Therapeutic jurisprudence (TJ) asks us to look at law as it actually impacts peopleâ€™s lives and focuses on the lawâ€™s influence on emotional life and psychological well-being. The ultimate aim of TJ is to determine whether legal rules and procedures or lawyer roles can or should be reshaped to enhance their therapeutic potential while not subordinating due process principles. TJâ€™s aim is to use the law to empower individuals, enhance rights, and promote well-being.
It is our belief that sanism can be combatted. First, we must recognize its power to influence court proceedings and attorney-client interactions. Then we must educate members of the legal system about this problematic and dangerous way of thinking. Finally, we must implement, using TJ, a set of practices that not only combats dangerous sanist thinking, but also teaches attorneys how to effectively persuade judges and jurors to look beyond the mental disability of their client.
In this paper, we first discuss the role and process conflicts that inevitably arise when lawyers represent persons with mental disabilities. Next, we discuss the meaning of sanism, and how sanism dominates the entire representational process in such cases. After that, we discuss how the lawyer-client relationship is tainted by these conflicts and the poison of sanism. We subsequently discuss the meaning of therapeutic jurisprudence, and finally contextualize all of what will be saying with the meaning on psychology of persuasion, especially as it relates to the concept of validation.
"Louisiana's Civil-Law Notaries"
43 Southern University Law Review 1 (2015)
GAIL S. STEPHENSON, Southern University Law Center
Louisiana grants expansive powers to non-attorney civil-law notaries public to perform acts considered the practice of law in other jurisdictions, such as receiving a will and selling and mortgaging real estate. Unlike civil-law jurisdictions such as Quebec and Puerto Rico where only attorneys can be notaries, Louisiana commissions notaries with only a high-school education if they can pass a rigorous examination. This article examines the history of Louisianaâ€™s civil-law notaries; their qualifications and functions; the fine line between â€śnotarial adviceâ€? and the unauthorized practice of law; the sanctions that can be imposed on notaries who abuse the privileges of their office, including those who engage in unauthorized legal practice; and proposed legislation to enlarge potential actions that can be brought against unauthorized legal practitioners. The article recommends mandating continuing notarial education, requiring a higher bond or higher insurance limits, and raising the educational requirements for prospective notaries.
"Hail Patriarchy! Of Supreme Judges and Elite Law"
SHALU NIGAM, Independent
The discussion around NJAC judgement was focused on sharing power, making decisions about the important aspects and relates to supremacy, authority and control of judiciary, female exclusion therefore becomes inevitable. The trend, as always, is to fiercely up keep the male prerogative. And when several of the female lawyers got the opportunity to raise this issue it was trivialized, marginalized, normalized and refuted while drawing the focus on the ratio of male and female advocates on bar. Tokenism and backlash operate to exclude those women who dare to raise their voice against male domination and highlights the manner in which gender bias is ingrained in the judiciary.
"Developing Your Professional Identity: Creating Your Inner Lawyer: (Chapter Three) The Attorney-Client Relationship"
Developing Your Professional Identity: Creating Your Inner Lawyer: (Chapter Three) The Attorney-Client Relationship, CreateSpace, November 2015
EDWIN S. FRUEHWALD, Independent
Who will I be as a lawyer? This is the most important question any law student can ask. Yet, in traditional legal education, this question rarely comes up. The purpose of this book is to change this.
Professional identity is a lawyerâ€™s personal morality, values, decision-making process, and self-consciousness in relation to the practices of the legal profession (legal culture). It provides the framework that a lawyer uses to make all a lawyerâ€™s decisions.
This book takes a variety of approaches to help you develop your professional identity. Chapter One asks you to take a close look at yourself by asking questions about your childhood, your college years, and who you are today. It is important to know who you are before you can fit into a profession. Chapters Two (Becoming a Self-Regulated Learner), Six (Overcoming Cognitive Biases), and Seven (Attorney Well-Being) give you the tools you will need to develop your professional identity. Chapter Two introduces you to â€śpractical wisdom,â€? an important approach to understanding and solving ethical problems. Chapters 3, 4, and 5 deal with professional identity within certain topics â€“ the attorney-client relationship, the lawyer and society, and attorney advertising and solicitation of clients. Chapter Eight presents the legal professionâ€™s and societyâ€™s views on lawyers and the legal profession. Chapter Nine focuses on your role as a lawyer. It asks you what area of law you want to practice, how you will deal with clients, your place in the legal profession, standards of civility in the legal profession, and working with subordinates. Finally, Chapter Ten contains a variety of extended problems to help you further develop your professional identity.
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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 University - Center on the Legal Profession
CHARLES W. WOLFRAM
Charles Frank Reavis Sr. Professor Emeritus, Cornell Law School