Table of Contents

Future Claimants and the Quest for Global Peace

Rhonda Wasserman, University of Pittsburgh - School of Law

The Ethics of Talking to the Media

Peter A. Joy, Washington University in Saint Louis - School of Law
Kevin C. McMunigal, Case Western Reserve University School of Law

Giving New Meaning to 'Justice for All': Crafting an Exception to Absolute Judicial Immunity

Brittney Kern, Michigan State University - College of Law

Legal But Unethical? Interrogation and Military Health Professionals

Eric Merriam, Government of the United States of America - Department of Law

Working Paper: Criminal Lawyers -- Not the Defense Kind -- Lawyers Stealing from Clients

Tom Ealey, Alma College

Blurred Lines: A Study of Law-Firm Funding

Radek Goral, Stanford Law School

Intra Law Firm Communications Regarding Questionable Attorney Conduct

Evan King, Northern Illinois University - College of Law
Jeffrey A. Parness, Northern Illinois University - College of Law

Foreword to: 'The Regulation of the Legal Profession in Ireland'

John Flood, UCD, University College London, University of Westminster School of Law

A Tool of Advocacy - Trial Brief

James A. Johnson, Independent


"Future Claimants and the Quest for Global Peace" Free Download
Emory Law Journal, Vol. 64, 2014, Forthcoming
U. of Pittsburgh Legal Studies Research Paper No. 2014-29

RHONDA WASSERMAN, University of Pittsburgh - School of Law

In the mass tort context, the defendant typically seeks to resolve all of the claims against it in one fell swoop. But the defendant’s interest in global peace is often unattainable in cases involving future claimants – those individuals who have already been exposed to a toxic material or defective product, but whose injuries have not yet manifested sufficiently to support a claim or motivate them to pursue it. The class action vehicle cannot be used because it is impossible to provide reasonable notice and adequate representation to future claimants. Likewise, non-class aggregate settlements cannot be deployed because future claimants will not have contacted attorneys whose participation is critical to those alternative methods of dispute resolution.

In lieu of class actions and non-class aggregate settlements, this Article proposes a hybrid public-private claims resolution process designed to provide many of the benefits of global peace, while preserving the constitutional rights of future claimants and ensuring them fair compensation as their injuries manifest. Under this proposal, defendants would secure judicial approval of a fair and reasonable class action settlement of the current claims and then, through an extra-judicial process, make fair offers on comparable terms to future claimants as their claims mature, adjusted to take into account the time value of money and intervening changes in legal doctrine and medical advances. Since the class action settlement would not purport to bind the future claimants, their constitutional rights would be protected. And even though the future claimants would not be bound by the class action judgment nor obligated to accept the fair offers on comparable terms, they would have an incentive to accept them, rather than sue in tort, because they would be assured fair compensation without incurring the costs of litigation.

"The Ethics of Talking to the Media" Free Download
Criminal Justice, Volume 28, Number 4, Winter 2014 Forthcoming
Washington University in St. Louis Legal Studies Research Paper No. 14-08-02

PETER A. JOY, Washington University in Saint Louis - School of Law
KEVIN C. MCMUNIGAL, Case Western Reserve University School of Law

Prosecutors and defense lawyers often seek to use the media to shape public opinion and to help their client’s causes. Even the alleged victim may retain counsel for advice and help in dealing with the media. Each lawyer attempting to advance a client’s position must work within ethical constraints when speaking with and using the media. Courts may also step in and impose legal constraints on the lawyers’ use of the media. Both ethics rules and court orders regulating publicity balance the competing values of a fair trial against free speech and the public’s right to be informed. Before answering a reporter’s questions, calling a press conference, or having other dealings with the media, a lawyer should know the ethical boundaries as well as the potential risks and benefits to the client. In this article, we review both the ethical and practical considerations for the prosecution and the defense when talking with the media.

"Giving New Meaning to 'Justice for All': Crafting an Exception to Absolute Judicial Immunity" Free Download
Michigan State Law Review, p. 149, 2014

BRITTNEY KERN, Michigan State University - College of Law

Hillary Transue was a high school sophomore when she was ordered to appear before Judge Mark Ciavarella regarding a fake Myspace account that she had created to mock the assistant principal of her school. Hillary and her mother had expected that Hillary would be given a “stern lecture? and would perhaps be ordered to complete community service as punishment. However, despite knowing that Hillary was a great student who had no other offenses on her record, Judge Ciavarella sentenced Hillary to three months of detention in a juvenile facility.

Judge Ciavarella had earned a nickname of “Mr. Zero Tolerance? by the time that Hillary stood before him in 2007. Though statistics for juveniles being sent to detention facilities were dropping steadily across the country, the Luzerne County courthouse where Judge Ciavarella practiced saw an increase in children being taken from their families and sent to these facilities. Due to the frequency with which juveniles were sentenced by Judge Ciavarella, it became expected and anticipated that the children appearing before him would be separated from their parents and sent away.

Judge Ciavarella, along with Judge Conahan, another Luzerne County judge, was involved in a multi-million-dollar scheme intended to profit a private detention facility operated by Robert J. Powell, a friend of Judge Conahan. In exchange for $2.6 million, Judge Ciavarella assured Powell that his new private facility would receive “tens of millions of dollars that the county and the state would pay to house the delinquent juveniles.? Judge Ciavarella’s plan was successful, as Powell’s facility saw a large influx of juveniles once it was opened.

After Judge Ciavarella’s illegal activities were realized, he and Judge Conahan were charged with racketeering, conspiracy, and other criminal charges, and have been sentenced to twenty-eight years and seventeen-and-a-half years in prison, respectively, for their actions. However, because Judge Ciavarella has absolute judicial immunity from civil recourse, the juveniles who were improperly sentenced by him are barred from bringing a civil suit against him and will fail to recover any monetary damages from him. Hillary will forever have to live with the fear and humiliation that she felt in Judge Ciavarella’s courtroom, after being handcuffed and taken away from her family, but she will never receive damages from Judge Ciavarella stemming from his violation of her rights.

In 1872, the Supreme Court decided the landmark case of Bradley v. Fisher, in which the Court detailed the doctrine of absolute judicial immunity and the requirements necessary for the immunity to apply. Absolute judicial immunity has been further developed since 1871, but many of the same requirements still apply, and judges are still considered absolutely immune from liability under the guidelines set forth in Bradley today. Under absolute judicial immunity, judges are provided with complete protection for any civil action brought against the judge for any judicial act taken, as long as the judge does not act in a clear absence of all jurisdiction. Absolute judicial immunity, however, provides judges with protection that is far too broad in scope.

Instead of providing a blanket protection for each judge, a limitation should be placed on absolute judicial immunity from civil cases. This limitation would disqualify a judge from being protected by absolute judicial immunity if the judicial conduct is sanctionable under the state or federal version of the Model Code of Judicial Conduct and if the judge acted with malice. If these elements are met, the judge would be unable to assert absolute judicial immunity as a defense and would be subject to civil suit in order to compensate the individuals victimized by the judge’s actions. If, however, the judge does not act in a manner for which he or she could be sanctioned or the judge does not act with malice, then the judge should be able to offer absolute judicial immunity as a bar from civil action.

Part I discusses in further detail the history of absolute judicial immunity, beginning with an examination of the policy considerations asserted by advocates of the doctrine and continuing with the earliest British case law. This Part concludes with a discussion of cases from the twenty-first century in which absolute judicial immunity was considered. Part II dissects the Model Code of Judicial Conduct, which serves as a set of guidelines to which judges are supposed to abide and as recommendations to each state as to what judicial activity should be sanctionable. Finally, Part III further develops the proposal of amending absolute judicial immunity to include this limitation, which is determined by whether the judge acts in a way that can be sanctionable and with malice. Part III concludes with a reflection of the policy concerns that have left absolute judicial immunity relatively unscathed throughout the centuries and indicates why this proposal is necessary to ensure that no plaintiff is left without relief when a judge violates his rights.

"Legal But Unethical? Interrogation and Military Health Professionals" Free Download
11 Indiana Health Law Review 123 (2014)

ERIC MERRIAM, Government of the United States of America - Department of Law

United States military health professionals who have served at military detention facilities in Afghanistan, Guantanamo Bay, Cuba (Guantanamo), and Iraq, have been labeled by some as "torturers" or war criminals for their interrogation-related activities. In portraying such professionals in this light, some commentators erroneously suggest that law proscribes health professionals’ interrogation-related conduct and holds them to a different standard than others involved in interrogation. This article demonstrates there is a significant gap between what law and professional ethics require, and concludes with an argument that this divide is harmful to detainees, national security, and health professionals.

"Working Paper: Criminal Lawyers -- Not the Defense Kind -- Lawyers Stealing from Clients" Free Download

TOM EALEY, Alma College

Theft by "persons of trust" is a major type of theft crime, and thefts by lawyers from clients are an especially unfortunate activity. This paper begins an exploration of theft by lawyers, responses by the legal profession (including indemnification) and possible strategies for improved deterrence.

"Blurred Lines: A Study of Law-Firm Funding" Free Download

RADEK GORAL, Stanford Law School

A major controversy in the ongoing debate on the future of the legal profession in the United States is whether lawyers should be allowed to partner with non-lawyers. Could they accept working capital from “limited partners,? in exchange for a share of profits? Presently, law on the books states that attorneys may share fees with other attorneys, but not with outsiders. For example, a law firm hired on contingency to handle a big lawsuit may finance it with own (or borrowed) resources or split the cost and the fee with another firm – but not with a hedge fund.

While lawyers ponder how to best regulate themselves, the norms of professional conduct clash with market realities that encourage law firms to accept capital from non-lawyers. Such third-party funding deals are usually confidential, and they remain poorly understood by policy makers and scholars.

This paper studies the case of a long-term relationship between a specialized law-firm “lender? and a prominent California lawyer. It starts by describing the history of their partnership. Second, it shows how the relationship gradually evolved from a commercial loan into something akin to an equity-style investment. Third, it finds that the impact of third-party financiers may transcend any one financing relationship, because some law firms obtain access to capital by sharing cases with funded attorneys.

The paper is an anecdote on how lawyers bend the rules, finding creative ways to tap third-party money and share business risks, ostensibly staying on the right side of the fee-splitting prohibition. It also argues that that the legal profession faces a choice: it can either expressly accept revenue-sharing with nonlawyers and find a sensible way to regulate it or put up with a spontaneous order emerging in the shadows.

"Intra Law Firm Communications Regarding Questionable Attorney Conduct" Free Download
46 St. Mary's Law Journal ___ (2014 Forthcoming)

EVAN KING, Northern Illinois University - College of Law
JEFFREY A. PARNESS, Northern Illinois University - College of Law

When questions are raised regarding a law firm attorney’s representation of a firm client, the questioned attorney often wishes to seek legal counsel. A conferral will often benefit the attorney, the firm and the client. Conferences regarding questioned conduct should be encouraged, not discouraged. To encourage these beneficial conferrals, a broad attorney-client communication privilege and a broad work product protection (or privilege) should be available.

Availability should not be dependent upon whether in-house, outside or other legal counsel are employed. While earlier federal precedents were split regarding the availability of the attorney-client communication privilege in the in-house counsel setting, increasingly therein the privilege is recognized by state high courts. As well, work product protections should also often be available to legal counsel advising questioned attorneys. Because of current federal-state and interstate differences in the two immunities from compelled involuntary disclosure, however, conferring legal counsel and questioned attorneys must proceed cautiously.

"Foreword to: 'The Regulation of the Legal Profession in Ireland'" Free Download
The Regulation of the Legal Profession in Ireland, Maeve Hosier (Quid Pro Books, 2014)

JOHN FLOOD, UCD, University College London, University of Westminster School of Law

The foreword shows how in the recession of 2008 lawyers escaped culpability while bankers were excoriated for their role in it. Nevertheless in Ireland, when it became a debtor country in the Eurozone, the Troika (IMF, EU, ECB) enforced a restructuring of the legal services market. This is viewed in the global context of a shift towards liberalisation of the legal services market at national and supranational levels. Despite the shift lawyers are rejecting change where they can, or, if they are unable to resist, at least attempt to delay it.

"A Tool of Advocacy - Trial Brief" Free Download
Attorney at Law Magazine - Metro Detroit Edition, 2014

JAMES A. JOHNSON, Independent

The purpose of this article is to demonstrate effective Michigan trial practice by presenting a trial brief in both state and federal court. A trial brief is a short written summary explaining your position to the judge. It states the facts, evidence and legal arguments that you plan to present at trial and should include citations to legal authority, statutes and case law to support your position. It is particularly useful where the substantive claim is one in which the trial judge may be unfamiliar and to help him or her understand how it applies to your case. For example, Michigan has established "Business Courts" and insurance coverage disputes are in this category.

Put your summary up front at the very beginning. The entire opening paragraph should be your conclusion or points with persuasive reasoning. The trial brief is the advocate's first opportunity to inoculate, educate and persuade the judge on the specific outcome of your case. The second purpose is to educate and persuade opposing counsel and create doubt and risk in his or her position.

Develop a persuasive and exciting writing style with bold captions, short paragraphs in bullet-point format on key areas and no string citations. A single case on point is sufficient and will be greatly appreciated by the judge. After you re-read your draft, read it again and cut information. This is the time and place where less is more.

File your trial brief before the last pre-trial conference and hand deliver another copy or supplemental copy to the judge and opposing counsel before voir dire.


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Legal Ethics & Professional Responsibility eJournal

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