Table of Contents

Prosecutorial Ethics in Retrospect

Bruce A. Green, Fordham University School of Law

Access to Justice: Looking Back, Thinking Ahead

Deborah Rhode, Stanford Law School
Scott L. Cummings, University of California, Los Angeles (UCLA) - School of Law

Privilege for Patent Agents

Megan M. La Belle, Catholic University of America (CUA) - Columbus School of Law

Regulating Mediators

Art Hinshaw, Arizona State University


"Prosecutorial Ethics in Retrospect" Free Download
Georgetown Journal of Legal Ethics, Vol. 30, No. 461, 2017
Fordham Law Legal Studies Research Paper No. 3044749

BRUCE A. GREEN, Fordham University School of Law

This Essay examines the ethical regulation of prosecutors over the past three decades. The topic is important from the perspective of criminal justice, no less than legal ethics, because prosecutors are centrally responsible for administering the criminal law. Courts assume that the principal role in regulating prosecutors should be played by the states’ formal attorney disciplinary processes rather than by civil liability or judicial oversight in criminal cases. However, there has been a well-justified academic and professional consensus that the disciplinary processes fail to fulfill their expected role because, when it comes to prosecutors, ethics rules are neither sufficiently restrictive nor adequately enforced. Consequently, proponents of criminal justice reform seek to hold prosecutors more accountable for conduct that undermines the fairness and reliability of the criminal justice process, in part, by advocating for stricter ethics rules governing prosecutors’ work and stricter enforcement of existing rules applicable to prosecutors. Those seeking prosecutorial ethics reform face an uphill battle, however, given the significant political influence of prosecutors, who are armed with a checklist of justifications for opposing efforts to regulate their conduct more strictly through the disciplinary process. Consequently, holding prosecutors more accountable may require either developing and strengthening alternatives to formal discipline or restructuring the process by which ethics rules for prosecutors are fashioned and enforced.

"Access to Justice: Looking Back, Thinking Ahead" Free Download
30 Georgetown Journal of Legal Ethics 485 (2017)
UCLA School of Law, Public Law Research Paper No. 17-31

DEBORAH RHODE, Stanford Law School
SCOTT L. CUMMINGS, University of California, Los Angeles (UCLA) - School of Law

This Article seeks to assess our progress and reassess our goals concerning access to justice. It begins in Part I by summarizing the nature of the challenge. Although there is much we do not know about the scope of the problem, the data available suggest a shameful inadequacy of services for the poor and a declining commitment of federal funds to address it. The remainder of the Article explores the most plausible responses. Part II reviews the role of technology, self-help, and nonlawyer services. Part III analyzes the extent of pro bono contributions and what can be done to increase them. Part IV surveys the evolution and contributions of public interest law, and how best to support it. Part V concludes with an agenda for reducing the justice gap. It argues for greater involvement of legal educators and practitioners in expanding understanding of the problem and supporting the most cost-effective solutions.

"Privilege for Patent Agents" Free Download
Boston University journal of Science and Technology Law, Vol. 23, 2017

MEGAN M. LA BELLE, Catholic University of America (CUA) - Columbus School of Law

Patent agents, in many ways, are unique operators in our legal system. They are not attorneys; yet, they are authorized by Congress to practice law before the United States Patent and Trademark Office. This unusual status raises a host of questions, including whether communications with patent agents should be privileged and, therefore, shielded from discovery. This question has become increasingly important in recent years with the rise of litigation at the Patent Trial and Appeal Board (PTAB), where parties can be represented either by a patent attorney or a patent agent.

The question of how to treat patent agent communications is not new. To be sure, lower courts grappled with the question for close to seventy years, but still could not reach consensus. Recently, however, the United States Court of Appeals for the Federal Circuit took up the issue in In re Queen’s University at Kingston and created a new privilege protecting patent agent communications. While the court made clear that the new privilege is limited in scope, the exact boundaries remain undefined.

This Article, drafted for the Boston University Journal of Science & Technology Law’s annual symposium, discusses the patent agent privilege, the Federal Circuit’s decision in Queen’s University, and the many questions that remain unanswered. More specifically, it explores whether the patent agent privilege should extend beyond federal court — for example, to the PTAB and state courts — what types of communications should be shielded, and who such a privilege ought to protect. The Article argues, in the end, that privileges shrouded by uncertainty are ineffective, and thus urges lawmakers to strive for uniformity in protecting communications between patent agents and their clients.

"Regulating Mediators" Free Download
21 Harv. Neg. L. Rev. 163 (2016)

ART HINSHAW, Arizona State University

In the United States consumers engage mediators on a caveat emptor basis. The regulatory scheme for mediators is a patchwork of mediation referral organizations which allows unscrupulous mediators to exploit consumers with little to no recourse. One egregious example is that of Gary J. Karpin, a disbarred lawyer turned divorce mediator, who used the mediation process to con forty people into giving him approximately $250,000 before taking up residence in prison. In an age when everyone from doctors to cosmetologists is subject to occupational regulation, why are mediators virtually unregulated?

Mediators have long been divided on the question of regulation. Those who oppose regulation routinely focus on what is best for the mediation process and practitioners, but not for mediation consumers. For a field that prides itself in understanding and addressing others’ concerns, this stance is odd and untenable. Using traditional arguments for regulation – protecting consumers and the field’s reputation – this paper refutes the established arguments against regulating mediators and contends that mediators should be regulated. In so doing, this paper provides an innovative method for regulating mediators that avoid the pitfalls of prior regulatory attempts.


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Legal Ethics & Professional Responsibility eJournal

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