LEGAL ETHICS & PROFESSIONAL RESPONSIBILITY eJOURNAL
"The Unethical Ethics Rule: Nine Ways to Fix Model Rule of Professional Conduct 1.8(e)"
Georgetown Journal of Legal Ethics, Vol. 28, No. 1, 2015
PHILIP G. SCHRAG, Georgetown University - Law Center
The ABA Model Rules of Professional Conduct proclaim that all lawyers should use their influence â€śto ensure equal access to our system of justice,â€? and in many ways, the Model Rules themselves attempt to improve access to justice for individuals of limited financial means. For example, the Model Rules explicitly authorize lawyers to charge contingent fees, so that clients who are unable to pay an hourly or flat fee can obtain legal redress for injuries without investing whatever savings they may have. The Model Rules also encourage lawyers to aspire to provide at least fifty hours a year of pro bono legal services, and they discourage lawyers from avoiding court appointments to represent indigent or unpopular clients. But Model Rule 1.8(e), which has become law in forty states, is at odds with the legal professionâ€™s goal of facilitating access to justice. This rule bars lawyers from assisting their low-income litigation clients with living expenses, such as food, shelter and medicine, though such clients may suffer or even die while waiting for a favorable litigation result. Because of its indifference to the humanitarian or charitable impulses of lawyers and its harsh effects on indigent clients, Rule 1.8(e) stands out as an unethical ethics rule. This article examines Rule 1.8(e) and its persistence, academic criticism notwithstanding, in the law of most states. It also suggests that the rationale for its continued enforcement rests primarily on concern for clients in contingent fee cases, and that the rule could be amended, rather than repealed outright, to narrow its scope, preserving its possible benefit while reducing its collateral damage.
"The Continuing Duty in Reality: A Preliminary Empirical Look"
DAVID M. SIEGEL, New England Law | Boston
TIGRAN ELDRED, New England Law | Boston
The continuing duty of criminal defense counsel to their former clients, even when those former clients bring post-conviction actions alleging ineffective assistance of counsel, has existed as a national practice standard in capital cases since at least 1987. In addition to its inclusion in the ABAâ€™s Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases since 1989, duties to former clients exist in all state ethics rules (as well as the ABA Model Rules of Professional Conduct). The duty has been further operationalized in non-capital litigation (as well as capital litigation) through a 2010 ABA formal ethics opinion concerning disclosures by trial counsel to prosecutors in ineffective assistance of counsel (IAC) claims, case law and scholarship. There are no empirical data concerning its operation in practice, and these are difficult to obtain because much of the continuing duty operates through informal practices. This paper describes the results of a brief survey intended to develop these data.
"The Myth of the Double-Edged Sword: An Empirical Study of Neuroscience Evidence in Criminal Cases"
Boston College Law Review, Vol. 56, Pages 493-551 (2015)
DEBORAH W. DENNO, Fordham University School of Law
This Article presents the results of my unique study of 800 criminal cases addressing neuroscience evidence over the past two decades (1992-2012). Many legal scholars have theorized about the impact of neuroscience evidence on the criminal law, but this is the first empirical study of its kind to systematically investigate how courts assess the mitigating and aggravating strength of such evidence. My analysis reveals that neuroscience evidence is usually offered to mitigate punishments in the way that traditional criminal law has always allowed, especially in the penalty phase of death penalty trials. This finding controverts the popular image of neuroscience evidence as a double-edged sword â€” one that will either get defendants off the hook altogether or unfairly brand them as posing a future danger to society. To the contrary, my study indicates that neuroscience evidence is typically introduced for a well-established legal purpose â€” to provide fact-finders with more complete, reliable, and precise information when determining a defendantâ€™s fate. My study also shows that courts accept neuroscience evidence for this purpose, and in fact expect attorneys to raise this evidence when possible on behalf of their clients. This expectation is so entrenched that courts are willing to grant defendants their â€śineffective assistance of counselâ€? claims when attorneys fail to pursue this mitigating evidence. Meanwhile, my study also reveals that the potential future danger posed by defendants is rarely a facet of cases involving neuroscience evidence â€” again contradicting the myth of the double-edged sword. The cases that do address future danger, however, offer fascinating insight into the complex legal issues raised by neuroscience evidence. As courts continue to embrace neuroscience tools and techniques, the empirical data collected in my study provide a foundation for discussions regarding the use of neuroscience evidence in criminal cases. The findings presented in this Article will ensure that those discussions are grounded in fact rather than hyperbole.
"Relevant Techniques for Defence Lawyers"
Segev D. (2015) Positive Criminology and Therapeutic Jurisprudence: Relevant Techniques for Defense Lawyers. In: Ronel N and Segev D (eds) Positive Criminology. Routledge.
DANA SEGEV, University of Sheffield
As acknowledged in Therapeutic Jurisprudence (TJ) literature, lawyerâ€™s actions can have important consequences for defendants. Defence lawyer received particular focus in TJ literature, and techniques have been developed to enhance their clientsâ€™ emotional well-being and readiness for rehabilitation. This book chapter, in a new Routledge publication: â€śPositive Criminologyâ€?, looks at the role of defense lawyers, particularly those who represent youth defendants. The aim of the chapter is to add to the pool of knowledge on the topic by turning to a concept referred to as â€śpositive criminologyâ€? and reexamining the therapeutic consequences lawyers can foster in young defendants by merging relevant aspects of each concept.
"Our Hidden Value"
University of Louisville Law Review, Vol. 53, No. 1, 2014
KEVIN H. MICHELS, The College of New Jersey
What makes us valuable as lawyers? Lawyers often locate their value in the knowledge of the law and the procedural means by which that knowledge is deployed, what I will term â€śpraxisâ€? capacities. That understanding overlooks a critically important capacity that we cultivate through education and experience â€” the capacity for â€śnormative reasoning.â€? Our normative capacities enable us to engage in the most difficult practical challenge imaginable â€” to argue, reason, and deliberate about how competing interests and claims can be ordered amid profound disagreement in the ever-varied circumstances that life offers. Questions about fairness, justice, and how to govern our society lie somewhere near the center of the human experience, and our capacity to reason in this deeply contested domain should be recognized, valued, and nurtured. I argue that our normative reasoning capacities allow us not only to perform critically important work for clients, but also to lead others and effect change in the world.
Part II will distinguish between our praxis and normative reasoning capacities, and sketch a description of the latter â€” the capacity to â€śreasonâ€? in a domain marked by disagreement on basic questions of fairness, value, and justice. Our normative reasoning capacities draw on moral intuition, narrative, experience and theory to reason and deliberate about questions of value, fairness, and justice in concrete, practical settings.
Part III will make the case for the value of normative reasoning by offering three examples of how lawyers effect change through the exercise of their normative capacities â€” through and beyond the traditional practice role. First, it will examine the critical role that normative reasoning plays in achieving justice for clients and in engaging with clients in deliberation about the most important questions in the representation. Second, I will argue that our normative reasoning capacity makes lawyers valuable as leaders, both in forging the ethos or vision that instills purpose and commitment, and in creating the ethical environment in which others do their best work. Third, I will argue that our normative reasoning capacities can empower us to effect change on a still wider canvas â€” as innovators, and not only in the provision of legal services, but in the creation of new services, enterprises, structures and institutions and even products that can change the world, incrementally or otherwise.
Part IV explores why normative reasoning has struggled to find a place in our self-understanding, observing that normative reasoning does not differentiate lawyers from laypersons, and thus it may not offer the prize of status and prestige. On the contrary, I conclude, normative reasoning invites us to share in the deepest questions of our community rather than isolating us on an island of technical expertise.
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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